author: Grant, C. J.

text:
    DARMSTAETTER v. HOFFMAN.
    1. Assignment of Lease — Liability for Rent.
    Where a lessee assigns his interest in the whole or a part of the demised premises for the entire term, the assignee succeeds to all the rights and liabilities of the original lessee, becoming holden for the rent according to the terms of the lease.
    2. Same.
    The assignee’s liability, in the absence of a contrary provision in the lease or the assignment, is to the original lessor.
    3. Same — Unauthorized Assignment.
    But where the lease contains a covenant against assignment without the lessor’s consent, one who accepts an unauthorized assignment is liable to his assignor for rent, independent of the question whether the latter has paid the same to the lessor.
    Error to Wayne; Frazer, J.
    Submitted October 19, 1898.
    Decided April 25, 1899.

      Assumpsit by Rudolph Darmstaetter and others against Charles Hoffman for rent. From a judgment for plaintiffs, defendant brings error.
    Affirmed.
    Hubbard & King leased to plaintiffs certain premises, to be used and occupied as a billiard hall and saloon. On December 5, 1896, this lease was assigned by plaintiffs to one Charles Kudner, and by Kudner, on December 30, 1896, assigned to defendant. One Alexander White was the owner of the pool tables and other personal property situated in this saloon, and on March 21, 1896, executed to plaintiffs a bill of sale, which was in fact a chattel mortgage. White transferred this personal property to one Brun, who went into possession March 21, 1896. Brun remained in possession, and was in possession at the time this suit was brought. Brun was indebted to the defendant, who, in order to secure this claim, purchased plaintiffs’ interest in the chattel mortgage, as well as in the lease. Plaintiffs paid Hubbard & King the rent for February, 1897, before commencing this suit, and paid the rent for March, 1897, after suit was commenced. Plaintiffs covenanted in the lease with Hubbard & King to pay the rent, and always paid them, and also covenanted not to assign or transfer it without the written assent of Hubbard & King, who had not recognized defendant as their tenant. The suit was instituted to recover the rent for those two months. Plaintiffs had verdict and judgment.

      William B. Jackson, for appellant.

      Cutcheon, Stellwagen & Fleming, for appellees.
   Grant, C. J.

(after stating the facts). Is defendant liable for the rent? It is the rule that the assignment of a lease, and its acceptance by the assignee, carries with it the obligation to pay the rent. The covenant to pay rent runs with the land. When the assignment .is absolute and for the entire term, or for a part of the premises for the entire term, the assignee succeeds to all the rights and liabilities of the original lessee. Lee v. Payne, 4 Mich. 106; Fennell v. Guffey, 155 Pa. St. 38; Le Gierse v. Green, 61 Tex. 128; Tayl. Landl. & Ten. §§ 16, 448, 450; 1 Wood, Landl. & Ten. § 337.

Defendant therefore became liable to pay the rent to some one. This brings us to the question, Can plaintiffs maintain the action, and that before paying the rent to Hubbard & King? Plaintiffs’ counsel contend that the defendant is virtually the lessee of the plaintiffs, and not of the original lessors, for .the reason that Hubbard & King have not looked to the defendant for the rent. As already shown, the covenant to pay rent runs with the land, and the assignee becomes liable to the original lessor, unless there is some provision in the lease or assignment to the contrary. Under such leases the original lessee could not sue his assignee to recover the rent due, until he had paid the lessor. But in this case the lessors have not consented to the assignment. There is nothing in the record to indicate that they had any knowledge of it, or had done any act which' could operate as a waiver of this covenant in the lease not to assign. Until Hubbard & King had assented in writing, or had recognized defendant as their tenant, that relation did not exist. The assignment was in direct violation of the terms of the lease. We do not think that the defendant is in a position to deny his liability to plaintiffs until he has made some arrangement with the original lessors validating the assignment. No relation of landlord and tenant exists between the defendant and Hubbard & King until they waive this covenant. We are therefore of the opinion that defendant is not in a position to deny his obligation to pay to plaintiffs, and that they may maintain suit before payment to Hubbard & King.

Judgment affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    CHICAGO LUMBERING CO. v. POWELL.
    1.. Trust Deed — Powers of Trustee —Nonresidents —Foreign Statutes.
    An insolvent in England, having instituted proceedings under the English bankruptcy act for a composition with his creditors, executed, and recorded in this State, a certain deed, which, after reciting a meeting of creditors and the choice of a certain person as trustee, conveyed to such person, “as trustee for the benefit and security of creditors,” certain lands situate in this State. Held, that resort might be had to the bankruptcy act to determine the powers conferred on the trustee, although the law itself could have no extraterritorial force.
    2. Same — Validity.
    It appearing that a trustee under the bankruptcy act has power to convey, the deed in question is sustainable in this State under 2 How. Stat. § 5573, subd. 1, as a conveyance creating an express trust to sell lands for the benefit of creditors.
    3. Same — Delegation of Trust — Attorney in Fact.
    It is not a delegation of the trust for a nonresident trustee to execute a contract through a resident attorney in fact.
    4. Land Contract — Absence of Witnesses — Specific Performance — Sufficiency of Bill.
    2 How. Stat. §5727, provides that no instrument intended to operate as a conveyance, made in good faith and upon a valuable consideration, shall be wholly void by reason of a defect in the statutory requisite as to attestation, but that the same may be allowed to operate as an agreement to convey, and may be enforced specifically by suit in equity, subject to the rights of subsequent good-faith purchasers. Complainant’s bill contained allegations showing a right to certain timber under a contract not witnessed, defendant’s subsequent acquisition of title subject to complainant’s right, his denial of complainant’s interest, and his threat to destroy it. The bill prayed that defendant be decreed to release his pretended claim, and be enjoined from further asserting it. Held, that, in the absence of demurrer, it was sufficient as a bill for specific performance.

      5. Same — Reservation in Deed.
    A deed of land "subject to all existing * * * timber contracts” is subject to all such contracts, whether recorded or not.
    O. Same.
    And no greater estate than that acquired by such deed can be conveyed by the grantee therein by the addition of the words “of record” to a like clause in a deed executed by him.
    7. Deeds — Habendum Clause — Effect.
    Although, in case of inconsistency between the granting clause and the habendum in a deed, the former usually governs, if it clearly appears from the whole instrument that it was the intention of the grantor to enlarge or restrict the granting clause by the habendum, the latter will control.
    8. Same.
    Thus, the words “subject to all existing timber contracts,” contained in the habendum clause, constitute a valid limitation upon the estate conveyed.
    Appeal from Schoolcraft; Steere, J.
    Submitted January 26, 1899.
    Decided April 25, 1899.
    Bill by the Chicago Lumbering Company against Daniel W. Powell and others to quiet title to certain timber. Prom a decree for complainant, defendants appeal.
    Affirmed.

      Ball & Ball (Clark & Pearl, of counsel), for complainant.

      A. B Eldredge (T. E. Tarsney, of counsel), for defendants.
   Hooker, J.

The bill of complaint was filed to restrain the defendants from cutting timber upon premises which the complainant claimed to own. The pleadings raise a question .of ownership between the parties, and the defendants appeal from an adverse decree.

A stipulation shows that Jonathan Nield was the owner of the land on May 22, 1879, and the proof discloses that upon that day Nield and wife made a deed of the land to Adam Murray, of Manchester, England. The deed recites that:

Whereas, at a meeting of the creditors of the said Jonathan Nield, duly convened and holden on the twenty-seventh day of January, in the year of our Lord one thousand eight hundred and seventy-nine, the said Adam Murray was chosen to be trustee of the separate estate of the said Jonathan Nield;
And tohereas, the said Adam Murray, -as such trustee, has requested the said Jonathan Nield to execute a conveyance to him, the said Adam Murray, as such trustee as aforesaid, of the lands hereinafter described or intended so to be, with their appurtenances, and the said Jonathan Nield has agreed to make the said conveyance:
“Koto, therefore, these presents witness that in pursuance of the said agreement, and in consideration of the sum of one dollar, lawful money of the United States of America, to them in hand paid at or before the sealing and delivery of these presents, receipt whereof is hereby acknowledged; the said parties of the first part have granted, bargained, sold, conveyed, and confirmed, and do hereby grant, bargain, sell, convey, and confirm, unto the said Adam Murray, party of the second part, as trustee for the benefit and security of the creditors of the aforesaid Jonathan Nield, his heirs, successors, and assigns, all of the following pieces or parcels of land situate in the State of Michigan, to wit.”

It was recorded in the register’s office for the county of Schoolcraft on July 24, 1879.

A power of attorney from Adam Murray to Reginald William-Petre, executed August 8, 1879, and recorded in said office April 14, 1881, was introduced. It authorized Petre to sell all lands deeded to Murray by Nield, to lease the same, and to sell and dispose of timber growing thereon. Both instruments were executed in England. Petre, as attorney for Murray, on June 8, 1882, sold the timber on the land to Ross & Co. by an instrument in writing, reading as follows:'

“In consideration of the sum of $2,340, to be paid in. form of a draft on Ross & Co., of Quebec, Canada, I hereby sell the pine timber standing, lying, and being on the following-described lands in the county of Schoolcraft, State of Michigan, to the said Ross & Co., being on an estimate of 200 ft. B. M. to the acre.”
It described the land, and was signed:
“Adam Murray, Trustee, per Reginald W. Petre Attorney in Fact.”

It was neither witnessed nor acknowledged, and was not, therefore, entitled to record.

On March 10, 1893, Adam Murray conveyed the land to the North of England Trustee Debenture & Assets Corporation, and its deed was recorded on April 17, 1894. This conveyance was “subject to all existing * * * timber contracts.” On December 20, 1894, the North of England Trustee Debenture & Assets Corporation deeded the land to the Lac la Belle Company, “subject to all existing * * * timber contracts of record.” The complainant acquired the interest of Ross, while the defendants have succeeded to the interest of the Lac la Belle Company.'

The defendants oppose the relief sought upon the following grounds:

1. That Petre had no authority to make the timber contract.

2. That, if he had, the instrument was insufficient to convey an interest in land.

3. That, under the recording laws, the defendants were bona fide purchasers, and took the land discharged from the timber contract.

The record shows 'that Nield and his associates in business, all residents of England, being insolvent, instituted proceedings upon their own behalf, for a composition with their creditors, by filing a petition in the county court of Lancashire, under the English bankruptcy act, and Adam Murray was appointed trustee. The bankruptcy act was introduced for the purpose of showing what powers are given to a trustee by that act; and it seems to be conceded that the power to convey, directly or through attorney, is among them. The conveyance to Murray was voluntary, and the deed, taken in connection with the proceedings under which the trust was assumed, shows that it was the intention that he should dispose of the property for the benefit of Nield’s creditors. The.deed has referred to these proceedings, and they may be considered in the attempt to ascertain what interest Murray obtained by the deed. It is urged that these proceedings have no extraterritorial force, and that the complainant cannot assert a claim under the foreign bankruptcy proceedings. We understand that the title claimed is not a judicial title. The evidence shows, on the contrary, that the deed was given to the trustee in pursuance of an amicable arrangement between Nield and some persons professing to be his creditors, whereby it was mutually agreed that Murray should take the title, of the land, as trustee, for the purpose of the liquidation of the affairs of Nield by arrangement, and not in bankruptcy. The title was accordingly conveyed to Murray by Nield.

In Graydon v. Church, 7 Mich. 51, it was said that the courts of one State have no power to make their judgments and decrees operate directly upon property in another; and in that case, if the receiver’s rights in real property had been left to depend upon the decree of the New York court, they could not be recognized in this State. But an assignment had been made to the receiver, and this was respected.

In Wood v. Parsons, 27 Mich. 163, the court recognized the rule that laws enacted by one sovereignty can have no force within the territory of another, but added:

■ “ Had the insolvent in this case, with or without the intervention or order of the court, made an assignment of this property to Wood, the plaintiff, we see no reason to doubt that such assignment would have operated as a conveyance of the title to any property of the insolvent here, except possibly, in some cases, as against the claims of creditors here. ”

Again, in Burrows v. Keays, 37 Mich. 435, this court said:

“A reference to the assignment shows that ‘the said party of the first part [Burrows], being insolvent, has voluntarily assigned, and hereby doth voluntarily assign, to the said party of the second part [Keays], all of his estate and effects, real and personal, of every nature and kind whatsoever.’ This, we think, is sufficiently full and complete to transfer and pass the title to the plaintiff to the property in question, and gives him a right to come into court and enforce and protect such title, as against the claims of the assignor. Any other view, assuming the position of defendant to be correct, would enable a debtor residing in Canada to send his property into this State, then make a voluntary assignment for the benefit of his creditors’, and at once come here and enjoy his property, without any power in the assignee to follow him and obtain possession thereof. This branch of the case very closely resembles Graydon v. Church, 7 Mich. 50, where the same questions were discussed,'and the conclusion there arrived at must govern and determine in this case.”

It is said that the deed shows that the property was conveyed to Murray in trust, and that no estate vested under our statute. 2 How. Stat. § 5573, permits the creation of express trusts to sell lands for the benefit of creditors. The deed in question recites that at a meeting of the creditors of Nield, duly convened, Adam Murray was chosen trustee, and that Nield agreed to make to him (Murray), as such trustee, a conveyance of the land therein described, and it proceeds to grant the property unto Adam Murray, as trustee for the benefit and security of the creditors of Jonathan Nield. This deed, of itself and alone, shows that the property was deeded to Murray in trust for the benefit and security of Nield’s creditors. It does not in express terms authorize Murray to sell the land for the benefit of creditors. Were it to be conceded that the deed fails to show upon its face an authority to sell for the benefit of Nield’s creditors, and that such power cannot be implied from its language, unexplained, the fact remains that the deed clearly shows that the intention of Nield was to convey to Murray, not in his own right, and not in the capacity of trustee simply, but in the capacity of trustee under an appointment recited in the deed itself; and the plain implication is that the land was subjected to such dispositions as the powers conferred upon him as such trustee permitted him to exercise. It is elementary that the effect of conveyances of land may be affected and limited by other papers to which they refer. Perhaps the most common instances are where land is conveyed subject to outstanding mortgages or contracts to which the deeds refer. In such cases the deeds are construed in the light of such instruments. It is urged that the rule is that the intention of the parties is to be ascertained “by considering all the provisions of the deed, as well as the situation of the parties.” See 2 Devl. Deeds (2d Ed.), §§ 836, 839, 840, and cases cited. Counsel cite a number of cases supporting the rule, among them Chapman v. Crooks, 41 Mich. 595; Stanley v. Green, 12 Cal. 148; Mulford v. Le Franc, 26 Cal. 88; Field v. Huston, 21 Me. 69; Wilson v. Hoffman, 70 Mich. 552. We are satisfied that the deed should be sustained, under subdivision 1 of section 5573, as a conveyance creating an express trust to sell lands for the benefit of creditors. By the terms of the deed, the powers of the trustee over this land were recognized. It is as though the instrument defining them were incorporated in the deed. We have no occasion to inquire whether the bankruptcy proceedings were regular, for Nield has consented to deed this land to a trustee having powers defined by that law. Hence, Murray is not a trustee with such powers and duties (only) as vest in such trustees under Michigan law, but with such powers as Nield voluntarily gave him;, and, not being contrary to the law of this State, the trustee may exercise the powers conferred.

We are satisfied that, under the authorities, Murray might execute the timber contract through an attorney. See 1 Perry, Trusts, § 409, and note. Moreover, we understand that the power was expressly, conferred.

Defendants’ next contention is that the timber contract was void, because not witnessed, under the doctrine laid down in Crane v. Reeder, 21 Mich. 61 (4 Am. Rep. 430). "We think it unnecessary to discuss this question, as the instrument certainly conferred an equity under 2 How. Stat. § 5727. It is said that, if this section saves the instrument, “it can only be enforced specifically in an appropriate proceeding, and cannot be held operative to transfer in prcesenti the title to this timber, and is not available in this proceeding.” .The bill contains allegations which show complainant’s rights to this timber, and that the defendants claim title to the premises under a subsequent conveyance from Murray, whereby they acquired title subject- to complainant’s rights, but that they deny complainant’s interest, and threaten to destroy it. It prays that the defendants be decreed to release their pretended claim to such interest, and that they be enjoined from asserting any title to the timber, or preventing complainant from removing the same. In the absence of a demurrer, the bill should be held sufficient as a bill for specific "performance, if such a bill were necessary for the relief of the complainant. „

It remains to consider whether the defendants were bona fide purchasers without notice of complainant’s rights, and therefore protected against them by the recording act. It is admitted that they paid value for their conveyance, but the important .question is whether they bought the timber. This must depend on the effect of the deed from Murray to the North British Company, for the insertion of the words ‘ ‘ of record ” in the deed given by the company did not serve to convey any greater interest than, its recorded conveyance showed that it took from Murray. That deed expressly limited the interest conveyed by making it “subject to all existing rights of way, easements, and timber contracts.” The substance of defendants’ contention is that this should be limited by the recording act, and should not protect any timber contracts that were not recorded. . The deed did not purport to convey any timber that had been contracted; it excluded it. Upon its face, it informed the grantee that there were interests that the grqntor did not possess. It did not describe these contracts definitely, as it might have done. It did not except those merely which were recorded; it used the comprehensiA’e term “all.” It was as though one should deed a village plat subject to all outstanding contracts for lots. Upon its face, there is a limitation upon the estate which might extend to all of the timber, for all might have been contracted. The .recording act does not protect the defendants in their claim for this timber, because their own deed does not purport to convey it. It is urged that, inasmuch as the proAdsion is contained in the habendum clause of the deed, it is not a limitation upon the estate. We are of the opinion that this is not a case for the application of such a rule. As a rule, the granting clause prevails over the habendum where their respective limitations are inconsistent; but it has always been held that the habendum was designed to denote the extent of the estate granted. See 1 Devl. Deeds (2d Ed.), § 213. The same author says (section 214)that:

“ Where proper words of limitation are employed in the granting clause, there is no benefit to be -obtained by the habendum. Where there is a repugnance between the Avords expressing the grant and the habendum concerning the estate the grantee is to take, the rule governing the construction of all contracts will be applied, and effect will be given to both clauses, if possible; yet where there is a definite limitation in the words of the grant, and there is a conflict between them and the habendum, the latter must yield. If it appears from the whole instrument that it was intended by the habendum clause to restrict or enlarge the estate conveyed by the words of grant, the habendum clause will preArail.”

Again, in section 215a, the author says:

When Habendum Controls. It may be formulated as a rule that, where it is impossible to determine from the deed and surrounding circumstances that the grantor intended the habendum to control, the granting words will govern; but, if it clearly appears that it was the intention of the grantor to enlarge or restrict the granting clause by the habendum, the latter must control. In a deed from a husband to his wife, after the habendum clause was a condition that she should not convey or mortgage the premises without his -written assent, and that, in the event of her death occurring before his, the property conveyed should revert to him or his assigns. The court construed the deed as showing an apparent intention that the grantee’s interest should cease if she died befoi’e the grantor, but that, if she survived him, the absolute title should become vested in her.”

Downing v. Birney, 112 Mich. 474, recognizes this doctrine. It is there said:

“But the habendum is not silent, and was undoubtedly designed to qualify or supplement the premises in some way, which it may legally do, even to the enlargement of the estate granted, or the creation of new estates in new parties, who may be introduced by the habendum for that purpose.”

We are satisfied that the intention of the parties, as evidenced by the deed to the North British Company, was to exclude the timber rights from the conveyance.

The decree of the circuit court in chancery is affirmed, with costs.

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


author: Moore, J.

text:
    GERMAIN v. CENTRAL LUMBER CO.
    1. Logging Contract — Ambiguities—Parol Evidence.
    Parol evidence is admissible to show that under a contract between a logger and a. sawyer, which was ambiguous iu certain of its provisions, it was contemplated that certain notes to be given for the saw bill were to be received in payment of the same.
    2. Same — Sawyer’s Lien — Release—Acceptance of Notes.
    A sawyer releases his lien by accepting notes in payment of the saw bill.
    3. Same — Payment from Sale of Lumber.
    A sawyer waives his lien by accepting notes for his saw bill, and authorizing the owner of the lumber to sell it to pay the notes.
    4. Same — Renewal of Notes — Effect on Lien.
    A sawyer releasing his lien by accepting notes in payment of his saw bill does not reacquire a lien by renewing the notes.
    5. Same — Evidence—Sufficiency.
    Evidence that a sawyer aided a purchaser in locating lumber ” piled on his dock, pointing out to him specific piles as belonging to the logger from whom the same had been purchased, that he requested the purchaser to remove the same as soon as convenient, and that he assisted the inspector sent by the purchaser to make shipment of certain portions, asserting no lien for the saw bill until after several shipments, and then only when the logger became insolvent, is sufficient to support a finding that the sawyer waived his lien.
    Error to Saginaw; Snow, J.
    Submitted January 27, 1899.
    Decided April 25, 1899.
    Replevin by Edward Germain against the Central Lumber Company. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Hanchett & Hanchett (Humphrey & Grant, of counsel), for appellant.

      Weaclock & Purcell, for appellee.
   Moore, J.

This case has been in this court before, and is reported in 116 Mich. 245. A reference to the case as reported will make it unnecessary to make so full a statement of the case as would otherwise be necessary. When the case was here, it was held the contract was not so plain in its terms that it was not susceptible of explanation by parol evidence. Then, as now, the defendant urged that the trial court should have directed a verdict in favor of the defendant, but the court said the questions involved were for the determination of the jury, -under all the circumstances. The record in this trial is substantially the same as in the other, except that plaintiff offered more testimony to show that the notes which were given by the Howrys were received as payment of the saw bill, and more testimony was offered than before that defendant waived any lien it might have for the saw bill. There is no more reason now for saying the case is not one for the jury than there was when the case was here before. In the former opinion it was said:

“If the notes for the saw bill were given and received as payment, it was a waiver of the lien. If Mr. Linton surrendered possession of all the lumber to the plaintiff, and agreed that he might remove it, Mr. Linton at that time knowing that plaintiff claimed to have purchased it from the Howrys, that' would be a waiver of the lien. These were questions for the determination of the jury. * * * There were two questions for. the jury: First, whether the notes for the saw bill were received as payment for the sawing; second, whether there was such a surrender of the lumber by Linton, and taking possession of it by the plaintiff, as amounted to a delivery of the whole lumber purchased by plaintiff. ”

The errors assigned, m addition to the one already mentioned, relate to the admission of testimony, the refusal to give certain requests to charge, and the charge as given.

The deposition of the Howrys was taken. They testified the purpose in making .the. contract was to enable them to have paper to use and get discounted at the banks, and assist them in their lumberiDg operations, and that the saw bill for sawing was paid by notes of J. W. Howry & Sons. One of the Howrys said, “We agreed to pay them $1.75 for sawing, and they accepted'iri payment for same our notes.” Another one of them said, “ I don’t pretend to give the exact language that was used in regard to how the saw bill was to be paid, but we were to pay the saw bill with our notes, and we had the privilege of renewing them if we desired.” It is said this testimony is incompetent, because the contract was in writing, and also because one of the witnesses said the agreement was embraced in the writing, and his testimony called for his construction of the contract. The whole defense is based upon the theory that there was not, in fact, a sale of 7,000,000 feet of logs at $12 a thousand from Howry & Sons to the defendant, as indicated by the paper of April 5, 1895, nor a sale in fact of a. like quantity of lumber at $12 a thousand by the defendant to Howry & Sons, as indicated by the paper dated April 6, 1895, but that the entire transaction was for the purpose of securing the payment'of $25,000 of paper which had been given them by A. T. Bliss, president of the defendant company, and $40,000 which was to be advanced by the defendant company, and to enable it to get the sawing of the logs. The officers of the company testified there never was in fact a purchase of the logs by them at $12 a thousand, or a sale by them of the lumber at a like, sum, and it was never expected there would be. It is to be observed that the paper of April 5th does not indicate when or how the difference between the $65,000 of the paper mentioned therein and the $84,000, the price of the logs, is to be paid. The paper of April 6th is also silent as to the terms of payment for the lumber. It provides that notes shall be given for the saw bill, but it does not say by whom they shall be given, for what length of time, or the rate of interest, or whether they shall be received as payment of the saw bill. The most casual inspection of these papers indicates that, unexplained, they do not contain the contract of the parties. To establish the defense, parol testimony was essential. .Without it, the defense could not be made. We think it was competent to explain the ambi-. guities of the contract, not for the purpose of varying it or contradicting it, but to show what, in fact, the contract was.

The court refused to give some of the written requests of counsel for defendant, but in his general charge he gave the substance of all of them which were competent to be given. Without quoting all of the charge, the jury were charged as follows:

‘ ‘ The defendant requests the court to charge you, and he does charge you, that the evidence shows that the defendant sawed for J. W. Howry & Sons, under the contracts made between them dated April 5, 1895, and April 6, 1895, put in evidence by the plaintiff, logs at $1.75 per M. feet, making a total saw bill of $14,137.78. Under the terms of said contract the defendant would acquire a lien upon the whole of the lumber sawed for the amount of the saw bill. The defendant would have a right to permit any part of the lumber to be removed by J. W. Howry & Sons, or by parties to whom they made sales of the lumber, and when so doing might retain a lien upon all of the lumber not yet removed for all of the saw bill not .paid, if they had not before that released it; that is, if they had not before that released their lien, if they had one. All that was necessary to retain a lien upon any part of the lumber was that the defendant keep possession of such lumber. The sale to Germain would be subject to the lien which defendant had upon the lumber, whether Germain in fact knew of the lien or not, if they had a lien.' The evidence shows that, when Mr. Germain bought the lumber, he knew it had been sawed by the defendant, and that it was upon the defendant’s docks and premises. These facts are notice to him of any lien the defendant had on the lumber for saw bill, if they had any. The plaintiff claims that the defendant did not have a lien 'on the lumber for saw bill. The burden of proof is upon the plaintiff to show, by preponderance of the evidence, that the defendant did not have such a lien. The giving of notes in renewal of notes first given for the saw bill would not discharge the lien, and any number of such renewals would not discharge the lien, unless the notes were taken as payment by agreement in the first instance.
c! The plaintiff requests the court to charge you, and he does so charge you, as follows: The construction of written contracts is for the courts, unless their terms are so ambiguous as to require explanation. The contract between the Howrys and the Central Lumber Company, in reference to the method of the payment of the saw bill, is not so plain in its terms as to whether or not the notes given for the saw bill were intended to be given in payment therefor, and evidence has been introduced on this question. I therefore charge you that if, from the evidence, you find it was the intention of the parties that the giving of the notes specified in the contract should be given and accepted in payment of the saw bill of the lumber in question, then the defendant had no lien for saw bill, and your verdict would be for plaintiff. If; from the evidence in the case, you find, by the condu'ct of the parties in the giving of the notes for the saw bill and the renewal of them for a period of time extending beyond the original six months specified in the contract, that it was understood between the Central Lumber Company, and J. W.-Howry & Sons that the lumber should be sold by the Howrys to obtain the money with which to pay the notes, then it is conduct that amounted to a waiver of any lien they had for saw bill, if they ever had one. If, from the evidence in the case, you find that the Central Lumber Company accepted the notes of J. W. Howry & Sons in payment for the saw bill, then the defendant would have no lien for saw bill; and the renewal of these notes, no matter how many of them were renewed, such renewals would not give the defendant any lien for the saw bill, and the plaintiff is entitled to. recover.”

We think this was a fair statement of the law applicable to the case.

There is a sharp conflict in the testimony, but it is claimed on the part of defendant that, giving the testimony of the plaintiff the most favorable construction possible, it does not show a relinquishment of the lien upon the lumber, and that the case is governed by Hughes v. Tanner, 96 Mich. 113; McEwan Bros. & Co. v. Carpenter, 111 Mich. 522. We do not think those cases control. In this case, not only were notes given for the saw bills, which were discounted by defendant, some of which were afterwards renewed, but there was testimony that, before plaintiff bought the lumber, he went upon the docks of defendant for the purpose of seeing the lumber. Mr. Linton, the manager of the defendant company, testified that he knew Mr. Germain was engaged in the business of buying' lumber, and was there looking at the lumber with a view of purchasing it; and he told him all of the lumber on the dock not marked up as sold belonged to the Howrys, and did not tell him the defendant had a claim on it for the saw bill. The plaintiff testified that, after he bought the lumber, he went upon the docks where the lumber was, and had a conversation with Mr. Linton, in which he informed him he had bought the balance of the Howry lumber, that he had also bought some lumber from Hargrave’s dock, and was pressed to move it, as they were limited for dock room, when Linton said “he was pleased I had bought it, but he was not so- pressed for dock room, but hoped I would move it when convenient for me; so long as they had dock room it was immaterial how soon I moved it.” The record also discloses that, as early as June 13th, Mr. Germain sent inspectors to the dock to inspect the lumber, and a lighter to carry some of it away, and that one of the inspectors made a list of all the piles of lumber which had been sold by Howry & Sons to Germain, and that Linton pointed out lumber which he said was the Howry lumber, and called attention to piles from which the mark had been removed as lumber that should go to Mr. Germain. There was evidence that Mr. Linton stated to the inspectors who were employed to inspect the. lumber that all the Howry lumber on the dock, except that sold to Randall & Boyd, belonged to Germain. One witness testified Linton said that Germain had bought all the Howry lumber, and that all the lumber on the dock marked “ J. W. H. & Sons” went to Germain, except some certain piles that were to go to Randall & Boyd, “part of which our inspectors had taken,” and Germain’s inspectors were to leave some of' the same kind for Randall & Boyd. He said the balance of the lot went to Germain, — was sold to Germain. Shipments were made by Germain’s inspectors from that time until July 16th, when the Howrys suspended, without defendant making any claim to anybody that it claimed a lien upon the lumber for the saw bill. We think there was abundant evidence from which the jury might find the lien had. been waived.

Judgment is affirmed.

The other Justices concurred.


text:
    CONKLING v. VILLAGE OF MACKINAW CITY.
    1. Common-Law Dedication — Plats—Public Park.
    Where the owner of wild land plats it into village lots, reserving for a public park a tract naturally adapted to that use, and marking it as such upon the plat, and effects sales of the lots by means of pamphlets which refer to the plat, and set forth the existence of the park as an inducement to purchasers, he cannot thereafter defeat the public right because of a lack of the statutory formalities in the dedication, since the proceedings amount to a dedication at the common law.
    2. Same — Acceptance—Unincorporated Village.
    Under such circumstances, it is not necessary that there should be a formal acceptance of the dedication, either before or after the incorporation of the village; the use of the land by the public for the purpose designated being sufficient, especially if the villagers and the grantor make common cause in its improvement.
    Appeal from Emmet; Adams, J.
    Submitted February 9, 1899.
    Decided April 25, 1899.
    Bill by Clinton L. Conkling,' executor of the last will and testament of Mercie A. Conkling, deceased, against the village of Mackinaw City, to quiet title to land. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      B. T. Halstead, for complainant.

      Pailthorp & McCabe, for defendant.
   Moore, J.

The circuit judge filed a written opinion, from which the following is taken:

‘ ‘ It appears that, at an early day in the history of this part of the State, one Edgar Conkling became imbned with the idea that a large city and commercial and manufacturing metropolis would come into existence, in the natural order of things, at the point where the village of Mackinaw City now stands. He was a. speculator in real estate; and, acting under this conviction, and seeing, or thinking he saw, large gains to be made in the enterprise, some time in the year 1854, or about that time, he took steps to purchase nearly all the land in the vicinity of the Straits, including the land in dispute in this case. Other parties became associated with him in the enterprise, and became owners of shares in the property. These owners, being desirous of establishing a city, to be called ‘ Mackinaw City,’ there, on July 30,1857, executed to said Edgar Conkling and Asbury M. Searles what is called a ‘deed of trust; ’ the trust being that the trustees, Conkling and Searles, pr their successors, ‘ shall at their discretion lay off the whole or any part of said premises into lots, streets, alleys, parks, and other prop'er arrangements for a town or city, * * * and at their discretion to sell or barter the sainé, or any portion thereof, in any manner, and for such consideration, as they may deem proper,’ and to make and hold all necessary papers, etc., and ratifying and confirming all their acts. * * * Between this date, July 30, 1857, and September 30th of the same year, the trustees caused a survey and map of the proposed city to be made. This plat or map shows on its face a space on the north side, and next to the Straits, not laid off into blocks and lots and streets, but with marks indicating a pleasure ground, and marked, ‘ Old Fort Park, 20 acres,’ being the ground in dispute in this case. The instrument of dedication attached to the map or plat, dated September 24, 1857, dedicates to the public use ‘all the streets and avenues,’ but does not mention the park. The trustees above named put forth and published a pamphlet containing this map or plat under the date of October, 1857, evidently for the information of prospective settlers and purchasers of lots at Mackinaw City, and intended to influence and induce people to locate there and purchase property. At this time, as I understand the testimony, there were no people residing at Mackinaw City, the whole tract covered by the plat being an unbroken wilderness. In this pamphlet, so published, the park is descanted upon as follows:
‘“The park now laid off embraces the grounds of the Old Fort Michilimackinac, sacred in the history of the country. These grounds, now in their natural condition, are unequaled for beauty of surface, location, scenery, soil, trees, etc., by any park in any city in this country; and when the skillful hand pi the horticulturist has marked its outline, and-threaded it with avenues and footpaths, pruned its trees, and carpeted its surface with green, it will present the very perfection of all that constitutes a park delightful. This park, with suitable blocks and lots for county and city buildings, market houses, schools, etc., will be duly appropriated to these uses whenever the proper authorities are prepared to select suitable sites; and lots for churches and institutions of learning and charity will be freely donated to 'parties contemplating early improvement Thus the trustees propose to anticipate, by avoiding the errors of older cities, the wants of Mackinaw City in perpetuity, and free forever its citizens from taxation for any grounds required for public good.’
“ The testimony taken tends to show it was the custom of Edgar Conkling, and also of Henry Conkling, who afterwards succeeded to the management of the property, to call the attention of those proposing to purchase to this park, take them to it, and point it out, and expatiate on its advantages to the people, and speak of it as an existing fact, for the public good, and in some cases justifying the large price asked for the lots by the liberality of the proprietors in giving the beautiful park, etc.
“It is claimed on the part of complainant in this case that the language above quoted from the aforesaid pamphlet shows that the trustees only made a conditional offer ,to dedicate the park; the condition being that the proper authorities should first ‘ select a suitable site.’ I cannot agree with this contention. It seems to me that the trustees and proprietors not only offered and intended to give to the public at once the Old Fort Park as a place of recreation and pleasure, but also offered to give other lands — ‘suitable blocks and lots’ — for the other purposes mentioned, as the necessity might arise from time to time; that is for ‘county and city buildings, market houses, schools, etc.’ As to the park, no selection of a site by anybody was necessary, as the proprietors had themselves most effectually selected and established its site and location. Consequently, the words ‘select suitable sites’ could not apply to the park, but only to the other purposes mentioned. I can come to no other conclusion than that the trustees and proprietors, in September and October, 1857, and for many years afterwards, offered unconditionally and presently to donate the park to the public of Mackinaw City as and for the usual purposes of a city párk. * * *
“As to the instrument executed by the trustees dated September 24, 1857, it is claimed on the part of complainant that it shows an intent to dedicate only the streets and avenues. I do not understand it in that way. It dedicates the streets and avenues, but says nothing about the park. I cannot see how it could be said to indicate an intent to dedicate only the streets and avenues, especially if taken in connection with the pamphlet and the other acts "of the proprietors.
“On the whole, I am satisfied that the trustees offered unconditionally, and so intended, to dedicate the park to. the public for park purposes. There are many cases which hold that the making of a plat with streets and avenues and parks designated thereon, and the sale of lots by reference to the plat, constitute an irrevocable dedication to the public of such public grounds; but I am not satisfied that such is the doctrine of the Supreme Court of this State. In this case it appears that the proprietors made a number of sales by reference to the plat, and at the same time represented the Old Fort Park as set apart for public use. I think such sales may be proved as acts in pais, to prove the intent of the proprietors to make the dedication. The said map and plat, and the dedication of the same, appear to have been executed by the trustees, Conk-ling and Searles, and acknowledged before John G. Douglass, a commissioner for the State of Michigan, residing in the city of Cincinnati, Ohio, under the seal of his office, and dated September 24, 1857, and were afterwards duly recorded in both Cheboygan and Emmet counties, in this State, the counties where said lands lie. It seems that this was not, in all respects, in strict compliance with the statute in relation to town plats. If, however, it was a sufficient compliance, then by the statute the fee of all the lands designated on such plat as laid out for streets, parks, and public grounds vested in the county, in trust for the use of the public for the purposes designated. If the curative statute of 1850 would apply, then it would help this conclusion. If, however, there was not a valid statutory dedication, then I think the plat may operate as a common-law dedication, in- which case the fee of the land would remain in the proprietors, but the use for the purposes designated would be in the public of the locality indicated.
“ But there must be an acceptance by the public before the dedication would take effect. If in a village which is incorporated, and has a legal existence as a municipal corporation, the acceptance must be by the public authorities of such village. If, however, the public of the locality is not incorporated as a city or village, then I think the acceptance may be shown by acts in pais of the people of the locality; such as joining together, with the concurrence of the proprietor, in furnishing money by subscription, or doing work and labor, with the intent to carry out the design of preparing the ground for the purpose of its dedication as a park. I think that in the case of an unincorporated village, as this was, no better mode of acceptance could be devised, and that it should be held binding. See Baker v. Johnston, 21 Mich. 346-351. In this case the proof tends to show that Edgar Conkling, while managing the property, sold lots according to the plat; that he joined with the people in fitting the grounds for public use in holding picnics and^ other public gatherings, which continued for several years. If the case depends on this alone, I think I should have to hold that such acts on the part of the inhabitants, acquiesced in by Mr. Conkling, would amount to sufficient acceptance of the dedication offered, and would b.e binding on the proprietors.
“This, however, is not all. It appears by the bill of complaint, which appears to be admitted by the answer, that on the 15th day of January, 1870, and after Edgar Conkling had acquired the interest of the other proprietors in the lands in question, he (Edgar Conkling), together with his wife, made an instrument by which, after some preliminary matter, they do dedicate and convey to public uses the park in question, upon the express condition that such land shall forever be used and remain a public park, and be fenced and kept in condition by the legal authorities of Mackinaw City; which declaration was duly recorded. This, of course, proceeds on the theory that the former offer to dedicate had not been accepted. But at this time —January, 1870 — the village of Mackinaw' City had not been incorporated, and had no. legal authorities. It was not incorporated until April 10, 1883. According to the terms of this dedication of 1870, no one but the legal authorities of the village had power to comply with the condition, and the offer should stand open till the village should be incorporated, and legal officers were elected, and for a reasonable time thereafter. But it appears in this case that, almost immediately after the village was incorporated,'Mrs. Conkling, who had acquired.the title, undertook to fence a part of the park, — not, however, so as to entirely close the same against the public,' — thus exercising a right of ownership, but not taking exclusive possession. And about that time the village authorities began taking steps to improve the park and care for it. It is claimed that the condition in regard to fencing the park and caring for it is a condition precedent, so that, until performed, the village would acquire no rights. On the other hand, it seems to me to be a condition subsequent, to be enforced, if at all, by forfeiture. But, as already stated, I do not think the rights of the village depend on this paper of 1870. That was made, as it appears, voluntarily, and in disregard of the rights of the public. I am of the opinion that the bill should be dismissed, with costs.”

The statement of the facts made by the judge is fully warranted by the testimony. It only remains to be seen whether he reached correct conclusions of law.

It is claimed on the part of complainant that there was no intent to dedicate the park presently, and that there was no offer to dedicate the land, except the conditional offer made in 1870. In the case of People v. Beaubien, 2 Doug. 256, which was a case where a plat or map had been prepared, but was not próperly acknowledged, so as to constitute a statutory dedication, and deeds had been subsequently made referring to the map, it was held that the deeds, with their references, were proper evidence as acts in pais to establish a dedication upon general rules of law, independent of the statute. It was also held they were not conclusive, and that other proof might be offered to show that no dedication was intended; and this case is cited with approval in People v. Jones, 6 Mich. 176. In Village of Grandville v. Jenison, 84 Mich. 54, it is said:

“Themaking of a plat of lands by the proprietor, showing lots, blocks, and streets, evidently for the use of those who shall come to occupy the property, and the subsequent sale of the property in lots or blocks according to such' plat, as was done in this case, is one of the clearest ways of declaring an intention to dedicate. Such an act has been held to conclude the owners, so far as the rights of subsequent purchasers are concerned (5 Am. & Eng. Enc. Law, 405, and cases cited); but the owner' is not concluded as to the public unless the dedication be accepted by the public.”

See, also, Tillman v. People, 12 Mich. 401; 2 Dill. Mun. Corp. (4th Ed.) § 636; Board of Sup’rs of Cass Co. v. Banks, 44 Mich. 467.

In Baker v. Vanderburg, 99 Mo. 378, it is said:

“To constitute a common-law dedication, there must be an acceptance by the public. 2 Herm. Estop. § 1142. We have held, where there is an unconditional attempt or offer to dedicate a parcel of land for a public square, and such offer is followed by adverse use by the public, that such use is a sufficient acceptance. No formal acceptance by the corporate officials is necessary in such cases. Price v. Town of Breckenridge, 92 Mo. 382. The acceptance is sufficiently indicated by common use; certainly so in the case of a square or park. Abbott v. Inhabitants of Cottage City, 143 Mass. 521 (58 Am. Rep. 143).”

See 2 Dill. Mun. Corp. (4th Ed.) § 645; White v. Smith, 37 Mich. 291.

The case of Attorney General v. Abbott, 154 Mass. 323 (13 L. R. A. 251), is quite in point. There the owners platted ground, and marked upon the plat spaces as parks, published pamphlets showing the spaces so marked, and sold lots. There was at this time no incorporated village to take action, but the spaces were regarded by the public as parks, and a very little was done to improve them by the villagers. The court used this language:

“ The fact that not much was done to adorn these spaces, arid that the corporation itself did whatever was done in this respect, and to some extent assumed to exercise a certain control over the land, is not of much weight in opposition to the conclusion to which we have come. The chief element of a public park in such a place, at least till the village is well settled, is to have the land kept open, the adornment would naturally come later, if at all. The corporation did a little towards improving and caring for these open spaces. It had some interest in doing so. Ordinarily, when parks are established for public use, the municipal authorities exercise control over them. Washb. Easem. 146, 147, 156. It was not so here. Whatever was done was done by the corporation, which, to some ex-tént, did what municipal authorities usually do. The corporation was interested in pushing its speculation, and, as long as it had many lots left for salé, it did something for the parks; but afterwards they were much neglected. On the whole, we think the evidence is sufficient to show an offer to the public of the spaces shown on the last two plans as Ocean, Hartford, and Waban Parks. . * * * Without dwelling upon various 'other particulars of the evidence which tend in the same direction, we cannot doubt that it was a part of the scheme of the enterprise or speculation that the public should understand that these spaces should be left open for public use, and that no right was reserved to sell them for building lots; and that the corporation held out to the public this assurance, and at the time fully and fairly intended' to give up this right. * * * The acceptance of such a dedication at common law need not appear of record, and need not be by the town. The acceptance is by the public at large, and the principal thing to show it is use by the public. Washb. Easem. 128, 139, 140. There is no need of a formal grantee. The fee remains in the original owner. City of Cincinnati v. White’s Lessee, 6 Pet. 431. No assent of the town is necessary, because no burden is put upon the town, as in the case of a way. The improvements upon a park thus dedicated are left to be made by those who are interested. The town may take it up, or it may be left to individuals. If in a seaside summer resort no improvements at all are made, there will still be some benefit from having a space left for air, and for an open, unobstructed prospect. Whether the easement of a public park could be accepted merely by enjoying an unobstructed view over it of the ocean need not be considered. Various other acts of use of all the parks are shown, sufficient to show an acceptance of them by the public. Such acceptance need not be very specific.
“The defendant contends that such acceptance must have been by the town of Edgartown originally, or by the town of Cottage City afterwards. The chief argument in support of this view is that there must be somebody wbo can be held responsible for the abatement of a nuisance, if one should exist upon the property; and that if the dedication is not to the town, and accepted by the town, there is virtually no owner of the property. This argument is of force, but the technical answer is that the fee remains in the original owner. The dedication for a park carries only an easement. This easement is not in the town, but it is in the public at large. There may be inconveniences in this doctrine, in cases which are supposable and possible, but the doctrine itself has been widely adopted, and has been expressly recognized as in force in this Commonwealth. Abbott v. Inhabitants of Cottage City, 143 Mass. 521 (58 Am. Rep. 143).”

In Baker v. Johnston, 21 Mich. 346, this language is used:

‘ ‘ Where the land platted falls within a city or incorporated village, and there are corporate authorities having control over public lands and easements, there is no difficulty in holding that the acceptance must come from the authorized public agents, in order to give the public any rights in the dedicated premises. If those who have authority neglect or decline to act, then no force can be given to the acts of those who have no authority. The statutes have provided for certain cases of public user of highways, but for nothing further. And dedications for other than highway purposes require acceptance in a different way. But it sometimes happens — and it was so in the case before us- — that land is platted where no incorporation exists, and where there is no certainty that the locality .will become an incorporated town or city within any reasonable time. The population required for an incorporated village must be at least three hundred to the square mile, and the village itself must contain that number. And while that must be a very small village which falls short of three hundred, yet there are such villages; and, if persons should see fit to provide squares and other conveniences and adornments for these small settlements, there would seem to be no sound reason why their validity should not be maintained, although an intention to make a dedication for such limited purposes may not, perhaps, be so easily inferred as for larger settlements. In determining whether a dedication has become complete, it will become necessary in such a case, as it is in the other case, to ascertain what the person dedicating must be assumed to have reasonably expected would be done by others to meet his offer, and to secure the application of the property to such uses and in such manner as will carry out the design of the dedication. And it may also become a serious question how far the want -of corporate capacity may interfere with the acceptance of a dedication that is lacking in some of the elements of certainty.”

In the case at bar the ground set apart for a park was historic. It had been the site of a fort which had played an important part in the early settlement of the State. The land was covered with a fine growth of trees. It was bordered by one of the Great Lakes. The outlook was exceptionally fine. If left in a state of nature, it would still be a magnificent park; but it was not left so. The inhabitants, prior to the incorporation of the village, cleared out some of the underbrush, used the ground for picnics, and subjected it to such uses, as a place of general resort for recreation, as might be expected from a community of a like number of inhabitants. See Archer v. Salinas City, 93 Cal. 43 (16 L. R. A. 145); Ruch v. City of Rock Island, 5 Biss. 95; Price v. City of Plainfield, 40 N. J. Law, 608; Cummings v. City of St. Louis, 90 Mo. 259; Rutherford v. Taylor, 38 Mo. 315; Carter v. City of Portland, 4 Or. 339. In the last-named case it is said, quoting from Rowan's Ex’rs v. Town of Portland, 8 B. Mon. 250:

“To say that a dedication to the use of the future town and of the public, made when the site of the town was in a state of nature, would be lost if not followed by immediate and continued use, or should be limited to the extent to which it was thus used, would deprive the dedication of its practical and its intended value, and would make it a mockery.”

See Town of San Leandro v. Le Breton, 72 Cal. 170.

In the use of a street, where the municipality may be subjected to the expense of erecting and maintaining bridges, or may be liable to persons injured when the streets are not reasonably safe and fit for travel, there is much force in saying that ther.e should be some formal action taken by the municipal authorities tending to show an acceptance before the dedication should be effective; but in a case like this, where the property, when the offer to dedicate is made, is a beautiful natural park, whose use would be beneficial, and where the villagers have paid more for their homes than they otherwise would because of the assurance that this land was a park, and where the offer to dedicate was made before there was an incorporated village, we do not think it necessary there should be formal action by municipal authorities before the public shall be entitled to the advantages growing out of the proposed dedication.

The decree is affirmed.

The other Justices concurred.


text:
    PEOPLE v. REIGEL.
    1. Grand Jury — Authority of Court — Construction of Statutes.
    2 How. Stat. § 7562, which, provides for the drawing of grand juries at least 14 days before term, and section 9554, which provides that grand juries ‘ ‘ shall not hereafter be drawn, ” unless upon written order of the judge of the court, filed with the clerk, are not to be construed as limiting the power of the court under 2 How. Stat. § 7578, in relation to the calling of grand juries during term, but, rather, as extending it, by permitting the judge at chambers to make an order for a grand jury if he thinks one necessary.
    2. Same — Order for — Filing with Clerk.
    An order for a grand jury, entered on the journal and signed by the judge of the court, is in substantial compliance with 2 How. Stat. § 9554, requiring such orders to be in writing and filed with the clerk.
    3. Same — Locality from: which Drawn — Specification.
    2 How. Stat. § 7578, providing that when, for any cause, grand jurors have not been summoned, or a sufficient number of qualified jurors fail to appear, the court may order a sufficient number to be drawn and summoned, and direct from which townships or supervisor districts they shall be drawn, does not contemplate that the direction of the locality from which to draw shall only be made after the grand jury has been drawn from the “body of the county ” in the first instance, but permits it to be made prior thereto, where grand jurors have not been summoned.
    4. Same — Legal Jeopardy — When Arises.
    Legal jeopardy is not involved in grand jury.proceedings; beginning only when the accused is placed on trial before a petit jury.
    5. Same — Indictment—Motion to Quash — Objections Available.
    On motion to quash an indictment, no objection to the composition of the grand jury is available other than those to which, under the statute (2 How. Stat. §§ 9496, 9497), the accused is limited when held to answer to such jury, viz., that a juror is prosecutor or complainant in a charge against him.
    6. Same.
    The objection that a grand jury was procured irregularly, and to the prejudice of the accused, should be addressed to the discretion of the court, which has the same power to set aside the proceedings that it has to vacate the verdict of a petit jury.
    7. Appeal — Review oe Discretionary Action — Presumption of Honesty.
    Tne Supreme Court will presume that questions addressed to the ' discretion of the trial court were honestly decided, and will not interfere unless abuse of discretion clearly appears.
    8. County Treasurers — Salaries—Boards oe Supervisors.
    Under 1 How. Stat. § 527, providing that the county treasurer shall receive such compensation as the board of supervisors shall deem reasonable, the compensation need not be fixed at a definite sum in dollars and cents, but prospective office charges may be included in the salary allowed; and this rule is not affected by section 508, providing that the annual salaries of county officers shall be fixed by the board prior to their election, and shall not be increased or diminished during the terms for which they shall be elected.
    Exceptions before judgment from Bay; Maxwell, J.
    Submitted February 10, 1899.
    Decided April 25, 1899.

      Michael Reigel was convicted of embezzlement.
    Reversed.

      T. F. Shepard (J. C. Weadock and J. E. Simonson, of counsel), for appellant.

      Horace M. Oren, Attorney General, and Isaac A,. Gilbert, Prosecuting Attorney, for the people.
   Hooker, J.

The defendant was convicted of the offense of embezzlement, upon the following state of facts: He was treasurer of Bay county, having been elected in 1894. At its October, 1894, session, the board of supervisors adopted the report of its committee on ways and means, which, so far as applicable to this case, was .as follows:

“ To the Honorable Board oe Supervisors oe
Bay County.
Gentlemen: Your committee on ways and means, to whom was referred the matter of the salaries of the county officers, have had the same under consideration, and would recommend that the salaries of the various county officers be as follows for the next two ensuing years: For county treasurer, $3,800, and collection fees on liquor and other taxes.”
Acting in conformity to this resolution, the defendant drew from the treasury the sum of $3,800 yearly, and at the end of each year of his term drew the collection charges, the same being audited and allowed by the board of-supervisors. Orders were drawn by the county clerk for the amounts. The prosecution rested upon the claim that he was not eñtitled to the collection charges under the law, and that, as he was bound to know the law, his act necessarily constituted embezzlement.
At the March, 1898, term of the circuit court, the following order was made and entered in the journal-
“ At a general term of the circuit court for the county of Bay, commenced and held at the court-house in Bay City, said county, on Monday, March 7th, A. D. 1898. Present: Hon. A. O. Maxwell, circuit judge. Court opened for business in due form.
“In the matter of drawing and summoning a grand jury.
“No grand jury having been drawn and summoned for the present term of this court, and it appearing to the court that there is reason for the summoning of a grand • jury, thereupon it is ordered that a grand jury be drawn and summoned forthwith, such jurors to be drawn from the cities of Bay City and West Bay City, and the townships of Bangor, Prankenlust, Hampton, Kawkawlin, Merritt, Monitor, and Portsmouth.
“Thereupon court adjourned until Wednesday, March 9th, A. D. 1898, at 8:30 a. m.
“Bead, approved, and signed in open court.
“A. C. Maxwell, Circuit Judge.”

A grand jury was drawn in conformity to such order, summoned, and impaneled, and the indictment upon which the conviction was had was found. Upon his arrest, the defendant, through counsel, moved to quash the indictment upon the ground that the grand jury was not legally constituted, for the reason that it was not drawn under a written order, signed and'filed in conformity to 2 How. Stat. § 9554, which reads as follows: ‘£ Grand juries shall not hereafter be drawn, summoned, or required to attend at the sittings of any court within this State, as.provided by law, unless the judge thereof shall so direct by writing under his hand, and filed with the clerk of said court; ” and for the further reason that said jury was not drawn from the whole county. This motion was by stipulation to be given the effect of a plea in abatement, should that be held the necessary practice. The court denied the motion, and proceeded to try the defendant.

The evidence showed that the collection charges consisted of the 4 per cent, collection fee provided by statute. The court held that “the effect of this resolution was to fix the salary of the treasurer at $3,800 and the collection fees of liquor taxes, given to treasurers by statute, and it was void as to the 4 per cent, collection fees on taxes collected,” and directed the jury to find a verdict of guilty. The defendant has assigned error. The questions discussed rest upon the following propositions, asserted upon the defendant’s behalf:

1. The indictment' should have been quashed.

2. The court erred in directing a conviction, because the resolution was valid, and gave the defendant the right to receive the sums taken.

3. In any event, the court should have submitted the question of criminal intent to the jury.

In 1859 the common practice of indicting, through a grand jury, was superseded by that of filing informations (2 How. Stat. chap. 334); and, by section 9554, the grand jury was dispensed with, except in cases where specially ordered. It -is contended that this section should be held mandatory, and strictly construed, in connection with section 7562, which provides for the drawing of grand juries by the clerk at least 14 days before term. It is said that the effect of these sections is to require the written order of the judge to be filed at least 14 days before term. Section 7562 was • originally designed to prescribe the .-method of drawing grand juries when they were a regular -appendage of the court, and its substance will be found in Rev. Stat. 1846, tit. 22, chap. 103, § 16. Section 9554 appears to have been required to prevent the continuance of the former practice of drawing and impaneling grand juries under chapter 263, of which 7562 is a section. We are not satisfied that it was intended to limit the power of the court in relation to the calling of grand juries during term, but think, rather, it was intended to extend it, by permitting the judge at chambers to make an order for a grand jury if he should think a grand jury necessary, that it might be seasonably- drawn in the usual way, which, under the former practice, required no order.

2 How. Stat. § 7578, reads as follows:

“Whenever, for any cause, grand or petit jurors shall not have been drawn and summoned to attend any circuit court, or a sufficient number of qualified jurors shall fail to appear, such court may, in its discretion, order a sufficient number of grand or petit jurors, or both, to be forthwith drawn and summoned to attend such court: Provided, that in drawing jurors under this section the court may, for the purpose of obtaining a jury or tales-men near the county seat, direct from which townships or supervisor districts such jurors shall be drawn.”

Such a construction of these statutes as is urged upon us would disregard section 7578, which was an old statute (see Rev. Stat. 1846, tit. 22, chap. 103, § 32), and one that is inconsistent with the claim that the circuit court, when in session, cannot order a grand jury for that term. The last-mentioned section, as it stood when section 9554 was passed, conferred such power upon the court in case a grand jury had not been drawn or summoned, and it was deliberately re-enacted, with amendments, subsequent to the passage of section 9554, without attempting to correct the incongruity which the construction contended for suggests. We see no necessity for such construction, and think it would be against public interest, and contrary to the uniform practice that has prevailed under section 7578. The order in this case was a formal court order, and it is over the signature of the judge, and therefore a substantial compliance with section 9554, if that section should be considered applicable to orders made in count, which we do not decide.

The order, in this instance, specified the townships from which the grand jurors were to be summoned, as provided in section 7578, and they were summoned from seven townships only. The constitutionality of this statute is not attacked, but it is urged that the theory of the law has always been to draw the grand jury from the body of the county” in the first instance, and that tales-men, or jurors to complete a panel or supply a deficiency, merely, have been permitted to be taken from a particular .township or city, and that we should limit the application of this statute to cases where a jury has been drawn, or at least ordered, and not summoned, or some of the jurors have failed to appear. The act is broad in its terms, and seems to cover any and all cases where, for any cause, such jury shall not have been summoned. In a case where a jury has been regularly drawn, but not summoned, the consequences of an order similar to that complained of would be as serious as though no jury had been drawn, yet such a case would unquestionably be within the statute. Why, then, should we place a strained construction upon it ? It is true that the laws have attempted to accomplish an equal distribution of jury duty throughout the county, but such distribution is not a matter upon which the validity of the proceedings depends. There is nothing in our Constitution to prohibit the legislature from regulating the practice by grand jury, any more than that by complaint and examination by a magistrate. Jeopardy does not begin until the accused is put upon trial before a petit jury. It was therefore within the power of the legislature to provide that a grand jury might be summoned from any portion of the county, either in case of emergency or in the first instance.

Sections 9496 and 9497, 2 How. Stat., are copied from the statute of New York. They are as follows:

“Sec. 9496. A person held to answer to any criminal charge may object to the competency of any one summoned to serve as a grand juror, on the ground that he is the prosecutor or complainant upon any charge against such person; and if such objection be established, the per-, son so summoned shall be set aside.
“ Sec. 9497. No challenge to the array of grand jurors, or to any person summoned as a grand juror, shall be allowed in any other case than that specified in the preceding section.”

If at the common law the accused had the right to challenge a grand juror, or the array, in.proper cases (which seems to be doubted in People v. Lauder, 82 Mich. 138)', our statute has forbidden this, except upon certain specified grounds; and it would seem to follow, that an objection which would not support a challenge could hardly suffice upon a motion to quash the indictment. This is indicated by Mr. Justice Morse in his opinion in the case of People v. Lauder, 82 Mich. 134, where he says that one having no opportunity to interpose a challenge has the right to raise, either by plea in abatement or motion to quash', the samo objections to the grand jury that a person under accusation at the time that it was impaneled might have interposed, but no other. In People v. Smith, 118 Mich. 73, it is said that “ an objection prohibited by the statute when the grand jury is impaneled cannot be valid when the party is put upon trial under the indictment found.” In People v. Lauder, supra, these sections were passed upon. It was there said (page 134) that—

“ The decisions in other States throw no particular light on this question, when we consider these statutes, except in States having similar laws. It was evidently intended by the legislature that no mere technicalities or irregularities should be permitted to quash the grand-jury panel, and that only in case of a prosecutor or complaining witness being summoned could the accused person successfully complain and exercise the right of challenge. And, certainly, if a person under accusation and arrest, and about to have his case submitted to the grand jury, could interpose but this one objection to the formation of the grand jury, he would not be permitted, after indictment found against him by such grand jury, to have such indictment quashed for any incompetency of a grand juror, or any irregularity in the selection or formation of the jury, which he could not raise before the jury was sworn. Such a holding would be nonsensical, and entail needless expense. And Lauder must stand in the same position. He can have no advantage over one who might have been under accusation and arrest at the time of the impaneling of the jury.
“ I am satisfied that the legislature has wisely ordained that no inquiry for the purpose of quashing an indictment shall be made into the composition of a grand jury, or as to the competency of the individual jurors, except in cases where some member has been the prosecutor of, or the complaining witness against, the person indicted. It must be remembered that the grand jury does not settle the guilt or innocence of the accused, but acts something the same as does an examining magistrate. No irregularities in the examination of an accused person before a magistrate are permitted to quash an information filed in the circuit court against him, and based upon such examination. The admission of incompetent evidence, or the rejection of proper testimony, by the justice of the peace, or other person holding such examination, has no effect upon the information. This proceeding to find an indictment before a grand jury, or to bind an accused person over to the circuit court by a justice of the peace, is but the presentment of a case to be tried before a petit jury, and the proceeding is not to be governed by any mere technicalities, as long as the substantial rights of the accused to a speedy and fair trial before a jury of his peers is preserved and remains to him. In a case where a grand jury was impaneled without any jurisdiction whatever, or fraudulently, or in willful disregard of the law and the rights of the accused, or when substantial injustice was shown to have been done him by any of the proceedings in organizing the grand jury, or by the proceedings before it after it was organized, it would be the duty of the court, upon proper showing, to quash the indictment.”

While the language quoted is from a dissenting opinion, it was concurred in by the entire bench, as appears from the majority opinion (see 82 Mich. 111), and was necessary to the decision of the case. Mr. Justice Morse cites cases of similar import from several States. 82 Mich. 138. In addition, we refer to the following: People v. Smith, 118 Mich. 73; People v. Petrea, 92 N. Y. 142; People v. Hooghkerk, 96 N. Y. 158; U. S. v. Reed, 2 Blatchf. 435; U. S. v. Tallman, 10 Blatchf. 2l.

The case of State v. Noyes, 87 Wis. 340 (41 Am. St. Rep. 45), is in point upon this question. It holds that a grand jury assembled under color of law is a de facto grand jury, and an indictment found by such jury cannot be attacked upon the ground that it was not found by a lawfully constituted jury, but that the proceedings of such a jury are valid, the same as are those of a court presided over by a de facto judge. In People v. Petrea, 92 N. Y. 128, an indictment for larceny was found by a jury drawn under a void statute, but the indictment was sustained, upon the ground that “the jury was a de facto jury, selected and organized under the forms of law.” A similar holding was made in People v. Fitzpatrick, 66 How. Prac. 14. In People v. Dolan it was not known who drew the jury, but the court said:

“It is sufficient to maintain the authority of the grand jury to investigate criminal charges, and find indictments valid in their nature, that the body acted under color of lawful authority.” People v. Dolan, 6 Hun, 232, 64 N. Y. 485, 493.

See, also, In re Gannon, 69 Cal. 541; Ex parte Haymond, 91 Cal. 545; State v. Belvel, 89 Iowa, 405 (27 L. R. A. 846); Ex parte Springer, 1 Utah, 214.

Missouri has a statute similar to our own. In discussing it, the supreme court of that State said, in the case of State v. Bleekley, 18 Mo. 430:

“ In early days, in this State, it was common for the courts to grant new trials in criminal cases on account of some disqualification of jurors. Frequently after undergoing the labor and expense of a trial, lasting for days, and after a verdict of guilty was found, a new trial was ordered because the prisoner had discovered that one of the jurors was an alien. The legislature determined to put a stop to this practice. * * * The defendant is not permitted to question the manner of summoning the grand jury. Such a cause, on such a subject, is not one of the statutory objections allowed to grand juries or to a grand juror in our courts, and npne other can avail.”

It does not follow that a meritorious question, arising out of proceedings of the grand jury, or irregularities in its procurement, cannot be reached. They are always within the discretion of the trial judge, who has the power to set aside the proceedings, as he may vacate the verdict of a petit jury, on motion. In Gibbs v. State, 45 N. J. Law, 379 (46 Am. Rep. 782), the adequacy of such remedy receives the following cogent vindication:

“Nor in abstract speculation would an argument of any force arise from these premises that the remedies thus provided are so utterly insufficient and unreasonable that it must be presumed that a further remedy exists. For my part, I can see no force whatever in such a suggestion. In the first place, we are to remember that the right in question, and which, in some measure, the law should assuredly secure to the party, is not one that can be called an essential or fundamental right. It is not one necessary for the security of the person, life, or property. The requisite that an accusation of this nature shall proceed from a grand inquest is the provision which the law makes against frivolous or malicious public criminations. The safeguards to such provisions, as I have said, consist in the right to challenge the grand jury and the right to move the court to set aside the proceedings. Are such safeguards unreasonably deficient ? I am at a loss to see how any one can so consider. If a man is tried for his life, and is convicted, and he then discovers that by the malice of the summoning officer the jury has been packed, and the trial has been a scheme to take his life, what remedy does the law give him in such an extremity? Absolutely none, but an application to the discretion of the court to set the proceedings aside; and yet it is argued that this same remedy is inadequate in its application to a similar proceeding on the part; of a grand inquest. I must repeat that I cannot concede that a right to put in the plea in question belongs to the defendants ex debito justitice.”

In U. S. v. Reed, 2 Blatchf. 449:

“ These objections, however, to the proceedings in the selection and summoning of grand jurors, over and beyond the right of challenge, are presented to the court for the exercise of its sound discretion. It will, therefore, look into the facts presented, on which a charge is made against the regularity of the proceedings in the selection and summoning of grand jurors in a given case, and will hear the explanations on the other side, and its judgment will be determined accordingly. If it sees that there has been improper conduct in the public officers, which has resulted prejudicially to the party accused, it is bound to set aside all the proceedings. On the contrary, although there may be .technical objections to the proceedings in point of s.trict regularity, yet, unless the court is satisfied that they have resulted, or may result, to the prejudice of the party accused, it will not set them aside, because its interposition in the case will not be required on the ground of justice either to the accused or to the public.”

Similar language is used in the case of People v. Lauder, 82 Mich. 138, and would seem to imply that, like other questions addressed to the discretion of the trial judge, the decision is not subject to review; certainly not, unless in cases of clear abuse. The presumption of the law is that the trial court is competent, and disposed to do justice, and its decision of questions addressed to its discretion should not usually be considered by superior courts. Under the pressure of hard cases, some of the appellate courts of this country have assumed to do so, and, when this is once done, it is afterwards difficult to avoid it, until it becomes a common thing to review discretionary action wherever there is a suspicion of injustice. It is destructive to the dignity and independence of the trial court, and it may be doubted if it is not productive of more injustice than good. It is urged in this case that the trial judge has sought to accomplish the indictment of a large number of innocent persons, through a grand jury who, from the proximity of the residence of its members to the county seat, are alleged to have been prejudiced against them. We can presume neither the one thing nor the other. So long as no error'of law is found, we cannot overturn the decisions of courts upon the ground that the judges have erred in judgment or motive. With other prosecutions we have nothing to do upon this record. So far as the indictment is concerned, it appears to have been found by a jury of qualified persons, and the objection to the constitution of the jury is purely technical.

Section 527, 1 How. Stat., provides that—

“The county treasurer shall receive for his services such Compensation as the board of supervisors shall deem reasonable, to be allowed and ordered by them.”

This is an old statute, and under it this court has held that the amount of compensation need not be fixed at a definite and specified sum in dollars and cents, and that it was competent for th'e board of supervisors to make prospective office charges a portion of the salary allowed, by a resolution reading as follows: ‘ ‘Resolved, that the salary of the county treasurer for the present year be fixed at $1,500, and that he be allowed his ordinary office charges in addition.” People v. Clerk of Board of Sup'rs of Bay Co., 38 Mich. 307. Counsel for the people seem to concede that this decision would require a reversal of this case, but for the fact that, some two years after it was rendered, the legislature passed an act in relation to tho fixing of salaries by the board, which is said to have been “intended to overcome its effect.” See 1 How. Stat. § 508. It reads as follows :

“ The annual salaries of all salaried county officers which are now, or may be hereafter by law, fixed by the board of supervisors, shall be fixed by said board on or before the thirty-first day of October prior to the commencement of the term of such officers, and the same shall not be increased or diminished during the term for which such officers shall have been elected or appointed.”

• We are not satisfied that it was intended to have.the effect stated, and think that it was intended to prevent changes in salaries following the election of officers, before the beginning of or during their terms. We see no reason for saying that it was intended to abrogate section 527, or to affect it, -except as it forbids changes during an official term. It- is apparent that 'the amount of the salary fixed in this instance was indefinite and uncertain in a sense, because liable to be increased or diminished through variations in the amount of the collection fees. But the statute was designed to prevent repeated or untimely action by the board, and not to prohibit a method of fixing the salary which should make the amount contingent upon the work done, and which has already been approved, provided the resolution fixing the salary _ should state the rule by which the amount should be determined.

Being unable to concur in the construction given to these statutes, we cannot sustain the conviction. It is therefore set aside, and, inasmuch as the authority to receive the money appears from the record of the board of supervisors, and cannot be successfully controverted, the defendant is discharged.

The other Justices concurred.


author: Per Curiam.

text:
    STODDARD v. GIASSON.
    Township Officers — Commissioner of Highways — Township Clerk — Refusal to Countersign Orders — Custom—Mandamus.
    3 How. Stat. § 1415, provides that, on the performance of contracts, the commissioner of highways shall make payment therefor by orders upon the township treasurer, which shall be signed by such commissioner and countersigned by the township clerk. Section 1435 provides that the township clerk shall be the clerk of the commissioner of highways, and shall, under his direction, record his proceedings in a suitable book, and shall keep an accurate account of all orders drawn by the commissioner on the township treasurer. The section further provides that all books and papers relating to the business of the commissioner shall be preserved by the clerk in his office. Held, that mandamus would lie on the relation of the commissioner to compel the clerk to countersign orders drawn upon blanks of a stub book kept in the commissioner’s possession, where refusal was based solely on a custom in the particular township of drawing such orders on a stub book kept by the clerk.

      Certiorari to Wayne; Carpenter, J.
    Submitted March 14, 1899.
    Decided April 25, 1899.

      Mandamus by Harry C. Stoddard, commissioner of highways for the township of Ecorse, to compel George F. Giasson, clerk of said township, to countersign certain orders on the township treasurer. From an order granting the writ, respondent brings certiorari.

    Affirmed.

      James H. Pound, for relator.

      Allan H. Frazer (Ormond F. Hunt, of counsel), for respondent.
   Per Curiam.

The facts in this case are sufficiently-stated in the opinion of the learned circuit judge. The facts and the law are so well stated in that opinion that we adopt it as our own:

“Relator, commissioner of highways for the township of Ecorse, applies for a mandamus to compel the respondent, clerk of said township, to countersign certain orders on the township treasurer. These orders were drawn by relator upon blanks taken from a book in his possession, containing stubs upon which he describes the order. Respondent contends that the orders should be drawn upon blanks on a stub book kept by him, and that the orders and the stub should be in the same handwriting, according to a custom which has prevailed several years in the township of Ecorse. This is the only question, as it is conceded that the accounts for which the orders are issued are valid, and according to one method or the other the orders should be drawn.
‘ ‘ The law which provides for these orders is contained in section 1415, 3 How. Stat. I quote from that-section:
Upon the performance of contracts, * * * the commissioner of highways shall make payment therefor by orders upon the township treasurer, which orders shall be signed by such commissioner and countersigned by the township clerk.’
“.Section 1425, 3 How. Stat., provides:
“ ‘The township clerk shall be'the clerk of the commissioner of highways, and shall, under his direction, record his proceedings in a suitable book, * * * and shall keep an accurate account of all orders drawn by the commissioner on the township treasurer, stating the amount of each, and in whose favor the same were drawn; and all books and papers relating to the business of the commissioner shall be preserved and kept by the clerk in his office.’
“This language clearly indicates that the commissioner shall make the order, and that .the clerk shall countersign it. The statute says the commissioner ‘shall make payment therefor by orders upon the township treasurer.’ The clerk ‘shall keep an accurate account of all orders drawn by the commissioner on the township treasurer.’ The law gives relator the right to draw these orders, and to no one else the right to control his discretion as to when and^where he will draw them. According to respondent’s contention, relator can only make this order in his presence, and on a blank taken from a book in his custody. This gives the respondent the right to control relator’s discretion as to when and where the orders shall be issued. Respondent contends that either relator must fill out both these orders and the stub in the book in his custody, which constitutes respondent’s account of the order, or that the respondent shall fill out both. If relator must fill out both the order and the stub, he is compelled to perform the duty of keeping an account of these orders, which duty is imposed by law upon respondent. If relator must permit respondent to fill out both the order and the stub, he is prevented from performing the duty which the law says he shall perform.
“To uphold relator’s contention does not, as contended by respondent’s counsel, adjudge that the custom heretofore followed in Ecorse township was illegal or improper. Heretofore the commissioner has met with the clerk, and permitted him to fill out both the order and the stub in the book in the clerk’s custody. I have no doubt of the legality and entire propriety of that method. That was a method which the commissioner had a right to follow, but it seems to me equally clear that he has a right to change it, and adopt another.
“It is contended by the respondent that his duty to keep an accurate account of the orders drawn by relator, and his duty to preserve the books and papers relating to relator’s business, justifies him in refusing to countersign orders not taken from the books in his custody. I cannot agree with this contention. Respondent’s duty to preserve the books and papers relating to relator’s business surely does not deprive relator of the right to keep for his own protection books relating to that business. This is what relator does, and all he does, when he preserves on the stub of the order a description of the order issued by him. Respondent should be afforded -the opportunity of knowing whether it is proper for him to sign the order, and of keeping an accurate account of it; but this can be done, and, in my opinion, must be done, without interfering with the legal rights of the relator. When the order in the relator’s handwriting is presented to the respondent, he can keep an accurate account of it by filling out a stub in his book, so arranged'as to correspond, or by any other proper system of bookkeeping.
“ It is argued that, if the order and the stub are made in the same handwriting, a better opportunity is thereby afforded to detect any change' made in the order after the clerk countersigns it. This may be true, but the argument of the relator’s counsel that the proposed system, with stubs kept by both relator and respondent, affords less opportunity for a corrupt manipulation of these orders than the system heretofore in use in Ecorse, is at least worthy of consideration. If the respondent thinks that other precautions should be adopted to protect the public treasury against the danger of these orders being raised after they pass from his hands, he can at once place in the hands of the township treasurer a copy of his record of the orders. It is sufficient to say upon this subject that the law determines what safeguards must be observed.' The question upon which the decision of this case turns is not, Is the relator’s method safer than the one heretofore used? The decision turns upon this question: Has relator a legal right to draw the orders in the method he has chosen? If he has, a court cannot deny that right because, in its opinion, another method is better and safer. As, in my judgment, relator has a right to draw the orders in the method chosen by him, he is entitled to a mandamus compelling respondent clerk to countersign them. Respondent must, however, be given an opportunity to make an accurate account of such orders. As respondent refused to countersign these orders in the bona fide belief that he would thereby violate an official duty, no costs will be awarded against him.”

The judgment is affirmed, without costs.