author: Hooker, C., J.

text:
    LOTHROP v. DUFFIELD.
    1. Guardian a.nd Ward — Probate Courts — Claims Against' Ward.
    The probate court has no jurisdiction to allow a claim against a ward’s estate, filed by and in the name of the creditor, with whom the ward had no contract relations.
    2. Same — Equity Jurisdiction — Injunction.
    Equity has jurisdiction to restrain the enforcement of an order of the probate court allowing a claim in the name of the creditor against a ward’s estate for legal services rendered at the request of the guardian.
    3. Equity Jurisdiction — Remedy at Law — Waiver.
    Equity has power to restrain the enforcement of an. order of the probate court, void for want of jurisdiction, where defendant has answered the bill of complaint, although there may have been an adequate remedy at law.
    Appeal from Wayne; Hosmer, J.
    Submitted June 4, 1903.
    (Docket No. 28.)
    Decided September 30, 1903.
    Bill by George Van Ness Lothrop and others, infants, by their next friend, Isabella G. B. Lothrop, against Henry M. Duffield, to set aside an order of the probate court, and for an injunction. From a decree for complainants, defendant appeals.
    Affirmed.
    Angelí, Boynton, McMillan & Bodman, for complainants.

      Otto Kirchner, for defendant.
   Hooker, C., J.

The complainants comprise several infants and their guardian. They file this bill to set aside an order made by the judge of probate allowing to the defendant a sum therein mentioned as attorney’s fees for services rendered in relation to securing for the complainants, from other descendants of their common ancestor, a concession by which their shares of the grandfather’s estate were materially increased. The petition is entitled in the estate of the minors, and prays the allowance to the petitioner of reasonable compensation for his services. It states briefly the nature of the services rendered, and the-amount- of time spent, but claims nó specific süm. The-petition bears the following indorsement:

“ In the Wayne County Probate Court.
“ In the Estate of George V. N. Lothrop et al., Minors.
“Isabella G. B. Lothrop, guardian of said minor children, answering the within petition, says that she has read the- same and knows the contents thereof, and that the same is true of her own knowledge in many respects, and in all other respects she believes it to be true; that she is unfamiliar with the value of legal services of this character, and submits the amount thereof to the decision and judgment of this honorable court.
“Dated February 30, 1900. .
[Signed] “Isabella G. B. Lotheop,
“Guardian of Said Minors.”'

The bill alleges, and the testimony tends to show, that the guardian was surprised at the magnitude of the allowance, and has no recollection of seeing or signing the petition, and that when she signed it she did not apprehend its purport and purpose. This is controverted. ' The bill prays that the order may be set aside, and defendant decreed to be not entitled to any compensation, that, he be enjoined from further prosecuting a elaim'for such services, and for general relief; it being claimed that the order operated as a legal fraud upon the infants. The circuit court found that the signature of the guardian to the consent was made under a .misapprehension, and decreed that the order be set aside and held for naught, and also that the prosecution of an action brought thereon in the circuit court for the county of Wayne bé enjoined, but without prejudice to the right of the defendant to make a further application to the probate court in relation to the matter in. controversy.

We are of the opinion that the proper practice was not followed in obtaining the order complained of. There was no privity of contract between these infants and the defendant. Whatever contract relations he had were with their guardian, who could not bind the infants personally or their estate by contract (except by authority of the probate court, in accordance with law), so as to subject their estates to claims filed by third parties for expenses incurred by tbe guardian. The practice has generally been for the guardian or executor to pay or incur such obligations, and include the amounts in his account against the estate. In Jones v. Brewer, 1 Pick. 317, it is said that, “It is a well-settled general principle that a guardian cannot- by his contract bind the person or estate of his ward.” See, also, Thacher v. Dinsmore, 5 Mass. 299 (4 Am. Dec. 61). In Forster v. Fuller, 6 Mass. 58 (4 Am. Dec. 87), it was said: “As an administrator cannot by his promise bind the estate of the intestate, so neither can the guardian by his contract bind the' person or estate of his ward.” Approved in Wallis v. Bardwell, 126 Mass. 366, and in Rollins v. Marsh, 128 Mass. 116, where it was held that ‘ ‘ a contract by a guardian for the support of his ward binds the guardian, and not the ward.” Bicknell v. Bicknell, 111 Mass. 265; Massachusetts General Hospital v. Fairbanks, 132 Mass. 414; Turner v. Flagg, 6 Ind. App. 563 (33 N. E. 1104); Stevenson v. Bruce, 10 Ind. 397; Lewis v. Edwards, 44 Ind. 333; Yourie v. Nelson, 1 Tenn. Ch. 617; Cobbey v. Buchanan, 48 Neb. 391 (67 N. W. 176); Hunt v. Maldonado, 89 Cal. 637 (27 Pac. 56).

In the last-mentioned case it was said:

“If the guardian made a valid contract with the attorney, he may be held liable, and if he pays it, and the probate court shall deem the expenditure reasonable and necessary to protect the interests of the ward, it may be allowed from the ward’s estate. But it is an expense incurred by the guardian in the performance of his duties, for which he is primarily liable.”

Fish v. McCarthy, 96 Cal. 484 (31 Pac. 529, 31 Am. St. Rep. 237).

In Tobin v. Addison, 2 Strob. 3, it was said:

“The guardian is responsible to every one contracting with him, and not the estate of his ward; against and with it he is to account, and debts paid for its benefit he is entitled to submit as charges against the ward.”

In Fessenden v. Jones, 52 N. C. 14 (75 Am. Dec. 445), it was said:

“ The single question presented in this case is whether a guardian, who calls in a physician to the slave of his ward, can be rightfully charged with, and made responsible for, the medicines and services rendered. The court is clearly of the opinion he may be. The credit in such case is not only in point of fact given to the guardian, but ought to have been so given. The guardian is charged with the duty of controlling and managing the person and property of the ward, and judging of the expenditures which may be needful for either, and he alone is informed of the condition of the ward’s resources. Hence the contract should be made with the guardian, and hence the guardian ought to be looked to for payment.”

Myers v. Cohn, (Com. PI.) 23 N. Y. Supp. 996; Copley v. O’Niel, 57 Barb. 299; Adams v. Jones, 8 Mo. App. 602; Lusk v. Kershow, 17 Colo. 488 (30 Pac. 62); Epperson v. Nugent, 57 Miss. 45 (34 Am. Rep. 434).

‘ ‘A guardian cannot, by his own contract, bind the person or estate of his ward.” Sperry v. Fanning, 80 Ill. 371. ‘‘A guardian has no power to bind either the person or the estate of his ward by contract.” Reading v. Wilson, 38 N. J. Eq. 446; Scott v. Porter, 44 Miss. 364; McGavock v. Whitfield, 45 Miss. 453.

In Dalton v. Jones, 51 Miss. 585, it was said:

“The law places under the control of the guardian the property of every description of the ward, charged with the duty of making it productive and of supporting the ward out of its income. The law does not leave the amount of expenditure for maintenance and education to the discretion of the guardian. This sum must be fixed by the court. If the income be insufficient, the court may order a sale of the requisite amount of property, etc. Sections 1219, 1220, Code 1871. If a guardian contracts for the education or maintenance of his ward without the sanction of the chancery court, he incurs a personal responsibility, and cannot be allowed for it in his accounts with his ward. A guardian has no power to bind the estate of his ward without the sanction of the chancery court.”

Poole v. Wilkinson, 42 Ga. 539.

"A guardian cannot borrow money and bind his ward therefor, nor can he, by any contract other than those specially allowed by law, bind his ward’s .property or create any lien thereon.” Rice v. Paschal, 59 Ga. 637; Westmoreland v. Davis, 1 Ala. 299; Simms v. Norris, 5 Ala. 42.

“Demands of this nature have several times been brought before this court. It has always held that debts contracted as this was are the proper debts of the persons occupying the position of trustees, by whom they were created. As was said by Judge A. J. Walker, in Sanford v. Howard [29 Ala. 684], ‘The purchases of trustees, including executors, administrators, and guardians, when made in obedience to the duties of the trust, impose upon them a personal liability. The seller,’ or, we may insert, the person to whom a debt is contracted, ‘must look to them for payment, and they must look to the trust estate for reimbursement.’ This is everywhere in this country, as well as in England, held to be the law.” St. Joseph’s Academy v. Augustini, 55 Ala. 495.

“It has been repeatedly decided in Massachusetts that a guardian has no power to bind the ward or his estate by his contract.” Brown v. Eggleston, 53 Conn. 119 (2 Atl. 321). Suit for-counsel fees was required to be brought against the guardian, and not the ward, in Phelps v. Worcester, 11 N. H. 51. “In general, he cannot bind the person or estate of his ward.” Tenney v. Evans, 14 N. H. 351 (40 Am. Dec. 194). See, also, Hardy v. Bank, 61 N. H. 34. The same doctrine is repeatedly stated in Woerner, Guardianship, pp. 164, 185, 192, 272, 281, 470.

The foregoing authorities ought to set the question at rest, although a few cases, some based on statutes and others not, hold the contrary. If it is true that the petitioner was entitled to file and have allowed this claim against the estates of the wards, it must follow that he who furnishes any article to the guardian for the benefit of the ward may harass the estate and the court with a petition for its allowance. It is as true where the claim is for a paper of pins as any other article or service. See, also, Sheahan v. Wayne Circuit Judge, 42 Mich. 69 (3 N. W. 259); Wood v. Truax, 39 Mich. 628; Bearinger v. Belton, 78 Mich. 114 (43 N. W. 1042); 3 Comp. Laws, § 8705; In re Hoga’s Estate, ante, 361 (96 N. W. 439).

We have not overlooked the case of Jackson v. Leech’s Estate, 113 Mich. 391 (71 N. W. 846). If the impression exists that this case is at variance with the cases upon the point before us, it is a mistaken one. The case arose over a final account filed by the executor, in which he, not a third person, asked an allowance for various items. A majority of the court held that, as he had incurred a personal liability, he was entitled to have the items allowed. The present question was not before the court, and was not passed upon directly, though there is much reason for saying that it was impliedly, and that it is in harmony with the cases cited. How otherwise could the decision rest on the ground that the executor had incurred a liability? And, if this was not personal, why should not the practice followed 'in the present case have been the proper one?

It results from this view that the probate court has no right to entertain a claim against a ward’s estate, filed by and in the name of a creditor with whom the ward has no contract relations, and that the want of jurisdiction appears upon the face of the petition, which set the court in motion; and we may add in this connection that the same reason which precludes a recovery before the probate court, viz., a want of privity, would forbid a recovery against the ward in a suit upon the claim in a court of law, and prevent an allowance of any sum in this proceeding. The remedy of defendant is restricted to proceedings against the guardian, unless he proceeds with her acquiescence, in probate court, through the medium of her account.

Counsel claims that there is no proper ground for intervention in this case, inasmuch as no fraud is shown. Bills to impeach decrees are not limited to cases of fraud, but such relief may. be based on other grounds. Adams, Equity, 196. Upon page 420 the author says:

“It has been also said that where an improper decree has been made against an infant, without actual fraud, it' ought to be impeached by original bill. When a decree has been made by consent, and the consent has been fraudulently obtained, the party grieved can only be relieved by original bill.”

See, also, 2 Pom. Eq. Jur. §§ 836, 837.

“When an improper decree has been rendered against an infant, either with or without actual fraud or surprise, the remedy should be by original bill.” 3 Enc. Pl. & Pr. 612. The above statement of the text is supported by the citation of many authorities.

There can be little doubt that this order was improperly taken. Aside from the jurisdictional question, the record shows that the action of the court was predicated upon a consent by the guardian to submit the amount to the judgment of the probate court. Under numerous authorities, she could not bind the wards by a consent to the decree or amount, even if such consent were given in open court. Conant v. Kendall, 21 Pick. 36; Wade v. Bridewell, 38 Miss. 420; Hite’s Ex’r v. Hite’s Legatees, 2 Rand, (Va.) 409. A confession of judgment made by a mother in her capacity as tutrix of her minor child is not binding on the minor or his property. Metcalfe v. Alter, 21 La; Ann. 389; Gooch v. Green, 102 Ill. 513; Wood v. Truax, 39 Mich. 628. In the latter case it was said: “ The court is bound to guard the interests of infant litigants, whether protected by their guardian or not.”

It is also urged that the court of chancery has not jurisdiction to set aside this order; that the most it could do in any event would be to make a restraining order, which should be operative against the defendant. It is the general rule that one court cannot restrain the action of another court, and has no power in a collateral proceeding to prevent the enforcement of its orders, judgments, and decrees. Nevertheless it is an every-day occurrence for courts to consider and adjudicate the question of validity of the proceedings of other courts, and declare them void. That we may do here; and, while decisions are numerous which profess to vacate and set aside decrees of other courts, it may be that, in the absence of statutory authority, the better practice is to restrain the party from enforcing such decrees. That is an adequate remedy here, and the prayer of the bill is sufficiently broad to warrant such decree.

It is said that, if this order is void, the bill should be dismissed upon the ground that the defense might be made in an action at law. A sufficient answer to this claim is that the court has assumed jurisdiction upon a record where counsel has pleaded to the merits, and may in such case retain it to grant relief, though it may be clear that adequate relief might have been obtained at law. See 11 Am. & Eng. Enc. Law (2d Ed.), 201, and cases cited.

The complainants may take a decree adjudging such order null and void, and for an injunction restraining the . enforcement of the same, and restraining the beginning or continuing any proceedings at law upon said claim for services against the infant complainants, but without prejudice to any proceedings against the guardian of said wards, or the presentation by her to the probate court, for allowance, of an account including said claim. Complainants will recover costs of both courts.

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


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    RANDALL v. DETROIT & NORTHWESTERN RAILWAY.
    Vendor and Purchaser — Guaranty—Debtor and Creditor— Subrogation — Equity.
    Where a railway company purchased the property of another railway company upon condition that three of the creditors of the vendor should guarantee its agreement that its property should be free from all liens, and that all its debts should he paid, and the purchaser saved harmless on account thereof, the guaranty was for the protection of the purchaser, and could not be enforced by a creditor of the vendor, either at law or in equity.
    Appeal from Wayne; Rohnert, J.
    Submitted June 5, 1903:
    (Docket No. 37.)
    Decided September 30, 1903.
    Bill by James A. Randall, trustee, against the Detroit & Northwestern Railway, the Detroit United Railway, the Preston National Bank, the Union Trust Company, William J. Hayes, Harry E. Hayes, and William L. Hayes, copartners as W. J. Hayes & Sons, Seymour Brownell, and Edward W. Voigt, for an accounting, and to enforce an alleged right of subrogation. From an order sustaining the several demurrers of defendants bank, trust company, and Hayes & Sons, complainant appeals.
    Affirmed.

      John Miner {Alfred Bussell, of counsel), for complainant.

      Bussel & Campbell, for defendants trust company and Hayes & Sons.

      Geer & Williams and H. B. Martin, for defendant bank.
   Montgomery, J.

The complainant and defendants Voigt and Brownell were the owners of all of the stock and assets of two street railways, — the, Grand River Electric Railroad and the Pontiac & Sylvan Lake Railway. Upon March 31, 1899, they sold all of the property and assets of both railway companies to the Detroit & Northwestern Railway, receiving in payment stock of the last-named company and $260,000 of its bonds of an issue of $900,000'; and $560,000 of bonds were issued to the Wolverine Construction Company, a company organized by the same parties for the purpose of building and constructing the Detroit & Northwestern Railway, its tracks, overhead work, etc. Subsequently it became necessary for the Detroit & Northwestern Railway to raise further funds to be used in paying its debts and necessary expenses, and the 260 bonds, in which the complainant had a one-third interest, were loaned by the complainant, Voigt, and Brownell to the railway company to be used for that purpose. No complaint is made as to the manner in which the bonds were used, but it is alleged, on information and belief, that they were pledged as collateral security to the obligations of the railway company.

May 7, 1901, the Detroit & Northwestern Railway, being financially embarrassed and insolvent, and unable to pay its debts or the interest on them, sold its railroad and property to the Detroit United Railway for the sum of $855,000, payment to be made in bonds of the latter company to that amount out of an issue of $1,000,000, secured by a trust mortgage upon the property purchased; the remaining bonds to be used only for the improvement and extension of the railway so acquired.. One of the conditions of the sale was that the Union Trust Company, the Preston National Bank, and W. J. Hayes & Sons, being creditors and holders of outstanding bonds of the Detroit & Northwestern Railway, should guarantee the agreement of the Detroit & Northwestern Railway —

“That the property, when sold and delivered to said Detroit United, Railway, shall be free from all liens, adverse rights, titles, and incumbrances, and that all debts, dues, demands, and claims of every name and nature against said Detroit & Northwestern Railway, or its property, for which it was liable May 1, 1901, shall be fully paid, satisfied, and discharged before the delivery of the purchase price, and to save the said Detroit United Railway, and such vendee as it may designate, harmless on account thereof.”

This guaranty was executed and delivered to the Detroit United Railway. Complainant does not attack the sale; he does not assert that it was illegal or for an inadequate consideration, or that he did not consent to it; neither does he claim that the proceeds were not properly applied in retiring the obligations of. the Detroit & Northwestern Railway. The prayer of the bill is:

1. That the Detroit & Northwestern Railway account with respect to the bonds in which the complainant had an interest.

2. That in case it appear that the defendants the Preston National Bank, the Union Trust Company, and W. J. Hayes & Sons have obligated themselves to pay all debts, dues, demands, and claims of every name and nature against said Detroit & Northwestern Railway, or its properties, for which said railway was liable on May 1, 1901, then that the complainant be subrogated to the right of the Detroit United Railway to call on the parties named to respond to such obligation.

Three of the defendants, the Union Trust Company, the Preston National Bank, and W. J. Hayes & Sons, demurred to the bill, and upon hearing the demurrers were sustained. Complainant appeals.

The solicitor for the appellant, in his brief filed in this court, says: “ The validity and good faith of the sale is not questioned in this case.”. No claim is made that the proceeds of the sale passed into the hands of the guarantors, or that they became responsible for them in any way whatsoever, or for their application, or that they derived any benefit from such proceeds, except as they would be entitled, with other creditors, to have paid to them by the Detroit & Northwestern Railway, which received the proceeds, their just proportion of the purchase price. For a failure in that behalf any bondholder would be entitled to an accounting from the Detroit & Northwestern Railway; but that question is not now before the court.

The appellant admits that, unless he is able to show that in equity he is entitled to be admitted to the benefits of the engagement entered into between the defendants the Union Trust Company, the Preston National Bank, and W. J. Hayes & Sons, on the one part, with the Detroit United Railway, as the purchaser of the assets of the Detroit & Northwestern Railway, on the other part, the decree below ought to be affirmed. But it is contended that the complainant is entitled to be subrogated in place of the Detroit United Railway, and to enforce against the three named defendants the agreement to pay the debts of the Detroit & Northwestern Railway. This presents the question for solution.

The engagement of the three named defendants recites that the Detroit & Northwestern Railway is financially embarrassed, and unable to pay its debts or the interest thereon, and is insolvent. The complainant, as well as the three demurring defendants, was a creditor of the Detroit & Northwestern Railway. He was also a stockholder. So far as the bill discloses, it was to his advantage that the sale of this property should be had, and the proceeds applied to the payment of the debts of the company. It is suggested by the complainant’s solicitor — indeed, it is contended and asserted — that, as between the vendee and the vendor, the former had no interest in seeing that all the latter’s creditors were fully paid; that the utmost that would be required of the vendee would be good faith, and the utmost that it could insist upon or fairly expect was an indemnity to itself as against any liens or claims of creditors affecting the purchased property. And it is argued from this that the guaranty by the creditors of the vendor’s covenant to fully pay and satisfy its liabilities was a distinct and valuable right, to which, unless it be construed - as being made for the benefit of creditors, the vendee succeeded by virtue of its purchase of the property and assets of its vendor, and in whose hands it is void of substantial benefit or advantage to any one.

This is a correct statement of the situation, and it leads to the inquiry as to whether the purpose of this engagement was to obligate the guarantors to actually discharge the debts and to incur an obligation to, the creditors of the Detroit & Northwestern Railway of that character, or whether it was intended as an engagement with the Detroit United Railway which might be discharged by any performance satisfactory to that company, the vendee in the agreement between the Detroit & Northwestern Railway and itself.

The rule of law is too well settled in this State to require extended citation of cases that a promise as broad as that which it is claimed by complainant was made in this case is enforceable only by the promisee. Pipp v. Reynolds, 20 Mich. 88; Wheeler v. Stewart, 94 Mich. 445 (54 N. W. 172), and cases cited. But it is contended by complainant that this rule of privity is a rule of law, and that a different rule obtains in equity. We recognize fully the rule that where, under equitable considerations, a third party is entitled to be subrogated in equity, he may enforce a promise made by one not in direct privity with him; but this rule arises out of the peculiar relations of the parties, like that of surety and principal, or trustee and cestui que trust. In the absence of such relation, and particularly where, as in this case, a subrogation would work injustice and inequity rather than equity, a court of equity will follow the law. See In re Rotherham Alum & Chemical Co., L. R. 25 Ch. Div. 103. In that case obligations had been incurred by the promoter of a corporation. An agreement was made by the corporation (when formed) with the promoter to pay the expenses incurred in organizing the corporation. The solicitor who had performed services in the matter sought to charge the corporation in equity. It was held that this could hot be done for want of privity.

In Nelson v. Rogers, 47 Minn. 103 (49 N. W. 526), a question somewhat analogous to the one in the present case was presented. In that case a purchaser had accepted a grant in which there, was a clause by which the purchaser assumed and agreed to pay a one-third part of an outstanding mortgage on the property. His immediate grantors were not obligated to pay the mortgage. Prior grantors sought to avail themselves of this engagement. The court said:

“ Such a stipulation is presumed to be inserted primarily for the protection of the grantor. And it is only where payment of the debt as a personal obligation is necessary to his protection that the clause is to be construed as intended for the benefit of the mortgagee beyond his right of recourse to the land. Otherwise the obligation of the grantee to the mortgagee would be greater than his obligation to the grantor, his promisee.”

So in the present case the only concern which the Detroit United Railway has in the payment of the debts of the Detroit & Northwestern Railway is that it should be indemnified against loss to itself, and in an action brought' by that company upon this obligation the damages would be limited to such damages as had accrued to it by reason of this failure of the guarantors to pay the outstanding obligations. This, the brief concedes, would be no damage at all; and to construe this engagement into an agreement made for the benefit of the creditors of the Detroit & Northwestern Railway would be to create an obligation on the part of the defendants which would be greater to them than would such obligation be to the party with whom they contracted. We think it very clear that in equity those not parties to the agreement could not be subrogated to greater rights than those with whom the agreement was made. Upon this point the case of Wilcox v. Musche, 39 Mich. 101, is certainly instructive, if not controlling.

We think the action of the circuit court in sustaining the demurrers should be affirmed, with costs.

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


text:
    COLE v. SHAW.
    1. Estates of Decedents — Residuary Legatee — Discharge— Failure to Pay Legacy — Administrator De Bonis Non.
    . Where an executrix has secured her discharge, and the cancellation of her bond as residuary legatee, without giving notice, by publication or otherwise, to a legatee, the probate court may appoint an administrator de bonis non with the will annexed, under the provisions.of 3 Comp. Laws, § 9334, in default of her filing a new residuary legatee’s bond.
    2. Same — Notice—Jurisdiction.
    An order of the probate court discharging an executrix who has given a bond as residuary legatee, without notice to one whose legacy has not been paid, is without jurisdiction, and does not relieve the estate.
    ■3. Wills — Annuity—Legacy—Executor’s Account — Notice.
    Where a will directed the payment of the sum of $300 annually, in quarterly installments, to testator’s sister as long as she lived, the annuity should be treated as a legacy, and the legatee is therefore entitled to notice of the settlement of the executor’s account. 3 Comp. Laws, § 9441.
    Error to Kent; Perkins, J.
    Submitted June 9, 1903.
    (Docket No. 49.)
    Decided September 30, 1903.
    Petition by Martha L. Cole against Louise B. Shaw to compel defendant to give a new bond as residuary legatee, or, in default thereof, for the appointment of an administrator de bonis non. The petition was denied in .both the probate and circuit courts, and petitioner brings error.
    Jteversed.

      Elvin Swarthout, for appellant.

      Butterfield & Keeney, for appellee.
   Montgomery, J.

John L. Shaw died in 1900, leaving a will, in which he gave and bequeathed to his wife, Louise B. Shaw, all his real and personal estate, subject, however, to a provision for his sister, which is as follows:

“ It is my will, and I give and direct, that the sum of three hundred dollars in money be paid to my said sister annually for her use and support as long as she shall live, and that it be paid to her by my executrix in equal sums of seventy-five dollars each, at the end of every three months from and after my decease.”

The will further directed that no inventory of his estate be required, and named his wife as sole executrix, and requested that she be required to furnish no bond. Mrs. Shaw qualified as executrix, and gave a residuary legatee’s bond in the sum of $5,000, which was conditioned to pay, or cause to be paid, all debts, legacies, and charges chargeable on said estate without fraud or delay. Six months were given from the filing of the bond for proving claims.

At the expiration of this period, the executrix filed a petition in the probate court, representing that all debts against the estate and all administration expenses had been paid, and that the estate had been closed against claims, and praying to be released and discharged as such executrix, and to have her official bond canceled. No notice of the filing of this petition, or of any hearing thereon, was published, and no notice was given to the legatee. On the same day the petition was filed, the probate court entered an order discharging, exonerating, and acquitting the executrix from all liabilities and troubles concerning her trust, and canceling the official bond, and revoking the letters testamentary that were granted. The bond itself was delivered up and removed from the files. Learning of this action something like a year after it was had, the petitioner filed her petition in the probate court, asking that the residuary legatee be compelled to file a new bond, and, in default thereof, that an administrator de bonis non with the will annexed be appointed to take charge of the estate. This petition was dismissed by the probate court, and that action affirmed on appeal to the circuit court.

Our statute (section 9334, 3 Comp. Laws) provides that when an administrator shall be removed,, or his authority-extinguished, the court of probate may commit administration of the estate not already administered to some suitable person. This statute seems to apply to the present case, as it appears that the legacy provided to be paid to petitioner has not been paid, and the estate in the hands of the executrix, even though a residuary legatee’s bond was given, is chargeable with this legacy. Lafferty v. Bank, 76 Mich. 35 (43 N. W. 34).

It would not do to say that the order of-the probate court discharging the executrix has barred the petitioner •of the right to have an administrator de bonis non appointed, as the proceeding in which this action was taken was one to which she was not a party. She had no notice of the proposed action, nor is there any finding of the court that the legacy provided for in the will has been paid. Petitioner’s rights were in no way considered, and it is difficult to see how, without notice, they could have been adjudged in that proceeding. If we assume that the court had power to discharge the executrix, there was no power to relieve the estate from the payment of the legacy, and any attempt to do so without .notice to the legatee would be an act without jurisdiction. Buss v. Buss’ Estate, 75 Mich. 163 (42 N. W. 688).

We do not overlook the contention of defendant that this annuity is not to be treated as a legacy, but we think the language of the will is clear, and that it is a legacy, and that the legatee was entitled to notice. See section 9441, 3 Comp. Laws; Morton v. Johnston, 124 Mich. 561 (83 N. W. 369).

The order of the circuit and probate courts will be reversed, and the case remanded, with direction to enter •an order that the executrix file a new bond, in a sum to be fixed by the probate court, within 20 days from notice of such order, or that in default thereof an administrator de bonis non be appointed. The petitioner will recover costs ■of both courts.

The other Justices concurred.


author: Grant, J.

text:
    WEISE v. ANDERSON.
    1. Mortgages — Deed as Security — Rents and Profits — Sale of Stock.
    A person who has received a warranty deed as security for the purchase price of certain corporate stock, and has controlled' the land for nearly six years, must account for the rents and profits, and place the grantor in statu quo, in order to recover the purchase price of the stock.
    3. Same — Remedy of Grantee.
    One who has received a warranty deed as security for the purchase price of corporate stock, and has been in possession* receiving the rents and profits, in order to recover the purchase price of the stock, should proceed in equity to have the-deed declared a mortgage.
    Error to Wayne; Hosmer, J.
    Submitted June 10„ 1903.
    (Docket No. 56.)
    Decided September 30, 1903.

      Assumpsit by Carl Weise against Andrew Anderson, to recover the'-purchase price of certain corporate stock. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    In the summer of 1895, plaintiff, defendant, and two-others agreed to organize a corporation to manufacture-matches in the city of Detroit. The agreement rested in parol. One was to receive $5,000 of the stock for his practical knowledge as a matchmaker, and the others, were to put in money. When the company was actually organized, plaintiff, according to his own statement, had advanced $6,143.90, defendant had advanced $15,-800, and the other corporator $16,500. The capital stock was $60,000. Defendant subscribed for $20,000, one Reese $25,000, the plaintiff $10,000, and the other-stockholder received stock to the amount of $5,000. Each of the three gave his note to the corporation for the; difference between the amount actually paid in by him and the par value of his stock. Defendant claims that plaintiff put in only $5,640. The difference, however, is immaterial.
    Operations were commenced in October. About three weeks afterwards, the building was burned. Some of the stock, and a large portion of the machinery and other materials, were saved. The value of the property saved is in dispute. The highest estimate of the value of the entire property after the fire was about $14,000. A meeting of the stockholders was held immediately after the fire to consider the situation. Defendant wanted to rebuild, and go on with the business. Plaintiff declined, saying he had no more money to invest. Negotiations were then entered into between plaintiff and defendant for the purchase of plaintiff’s stock. Defendant offered plaintiff his promissory notes for the amount he (plaintiff) had actually invested in payment of his „stock. . Plaintiff refused the offer, unless the notes were indorsed. Afterwards they completed some arrangement for the sale and purchase of the stock. Pursuant to the agreement, defendant conveyed by warranty deeds to plaintiff a house and lot and three vacant lots in the city of Detroit. The consideration expressed in the deed conveying the house and lot was $7,500, and in that conveying the vacant lots, $1,500. The deeds were executed December 11, 1895, were duly recorded, and the stock transferred by plaintiff to the defendant. The deed of the house and lot was subject to a mortgage of $2,000. There was also another mortgage of $1,000 upon it at the time, but that was subsequently paid by the defendant, discharged, and does not now affect the rights of the parties.
    Plaintiff immediately took possession of the land conveyed by defendant to him, has rented it, received the rents, and paid the taxes. On May 28, 1897, plaintiff conveyed the land to his brother, Paul Weise, for a recited consideration of $6,000. Plaintiff testified that he actually received this amount from his brother. On the same day his brother gave to him a land contract, agreeing to sell to him the house and lot for $2,500. On the same day his brother also conveyed the other lots to plaintiff and his wife by quitclaim deed as joint tenants, with right of survivorship. With some of the money received from his brother, plaintiff paid the $2,000 mortgage upon the house and lot, and procured its discharge.
    With the title to the land in this condition, plaintiff, in 1901, nearly six years after the transaction, brought this suit at law to recover the purchase price of the stock sold by him to the defendant. His claim is that he sold the stock to defendant for the amount he had put in, and that he took the deeds simply as security. The claim of the defendant is that he conveyed the lands in full payment for the stock. The case was tried twice, without any change in the condition of the title to the land. After the testimony had been closed on the second trial, the court opened the case, and permitted the plaintiff to tender in court a quitclaim deed from plaintiff and his wife to defendant of the house and lots, and an assignment by plaintiff and his wife to the defendant of all rights and interests under the land contract, and also a deed from his brother, Paul, and his wife to the defendant, conveying the same property, accompanied by the statement that the deeds “may be accepted on the payment of the $2,000 incumbrance on the property.” The court directed a verdict for the defendant, for the reason that, when this action was commenced, plaintiff had no cause of action enforceable at law.

      Corliss, Andrus, Leete & Joslyn, for appellant

      Edwin Henderson (Allan H. Frazer, of counsel), for appellee.
   Grant, J.

(after stating the facts). Aside from the deeds executed by the defendant to the plaintiff, and by the plaintiff to his brother, and the land contract, the transactions between all the parties rest entirely in parol. The instruments themselves are consistent only with an absolute sale. The value of plaintiff’s interest as a stockholder in the tangible assets of the corporation at the time he transferred his stock was about $2,000. Plaintiff and defendant were both business men, and understood the nature and effect of the deeds which were given and received. For nearly six years plaintiff was in possession of the property, dealing with it as his own, and finally conveying the title thereto by warranty deed. The deed of the lots by plaintiff to his brother, and on the same day a reconveyance of these same lots to plaintiff and his wife, as tenants by the entirety, is very nearly conclusive that the deeds from defendant to plaintiff and from plaintiff to his brother were not intended as mortgages. If, however, it be conceded that the testimony in his behalf was sufficient to raise a doubt as to whether the deeds were in fact mortgages, still it must be held that plaintiff is not entitled to a reversal of the judgment. Under his own theory, he was a mortgagee in possession, under a conveyance upon its face a warranty deed. For nearly six years he controlled the land, leased it,, conveyed it, and received the rents and profits. Even if he could maintain a suit at law, it was his legal- duty to account for the rents and profits he had received from the use of the property, and to place the defendant in statu quo. There is no testimony to show how much he received, or how much he expended.

A deed conveys the legal, title to the grantee. When either party claims that it was, in effect, a mortgage, the usual remedy is by bill in equity to have it so declared. This is the proper remedy, especially in a case where there must be an accounting for rents and profits. It is true that the question may sometimes arise in a suit at law, as where the grantor sues the grantee for the purchase price. Kellogg v. Northrup, 115 Mich. 327 (73 N. W. 230). No such case is presented by this record.

The direction of the circuit judge was correct.

Judgment affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred with Grant, J. Carpenter, J., concurred in the result.


author: Moore, J.

text:
    STEVENS v. BEARDSLEY.

    1. Settlement — Evidence.
    A jury was justified in finding a settlement from evidenoe that the parties met for the purpose of making a settlement, that the accounts were gone over in detail, that the items and amounts were not objected to, that a small balance was found due defendant, and that, for nearly six years, plaintiff made no claim that defendant owed him, although the witnesses did not say that it was agreed the accounts should be settled in full.
    2. Same — Burden of Proof — Requests to Charge.
    Where the court had, in his general charge, properly instructed the jury as to the burden of proof, it was not error, when the jury were brought into court to inquire if they were likely to agree, to refuse a request that the burden of proving a settlement was on the defendant.
    3. Trial — Instructions—Special Questions.
    It is not error to instruct the jury that a special question must be answered.
    4. Same — Evidence—Exclusion—Harmless Error.
    Where a jury found specially that there had been a settlement of plaintiff’s demand, the exclusion of testimony not bearing on the settlement, if error, was harmless.
    Error to Montcalm; Wolcott, J., presiding.
    Submitted June 10, 1903.
    (Docket No. 61.)
    Decided September 30, 1903.

      Assumpsit by William H. Stevens against William R. Beardsley for rent. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      V. H. & H. H. Smith, for appellant.

      L. C. Palmer {N. O. Griswold, of counsel), for appellee.

       Rehearing denied January 5, 1904.

   Moore, J.

The defendant was a tenant of the plaintiff from some time in October, 1887, until December, 1892, or early in January, 1893. This suit was commenced in justice’s court August 29, 1898. It was appealed to the circuit court, where a verdict was rendered in favor of defendant, and upon appeal to this court the case was reversed. It is reported in 122 Mich. 671 (81 N. W. 921). A reference to the opinion will aid in understanding the questions involved in this appeal.

Upon the last trial, the jury again rendered a verdict in favor of defendant. It is the claim of plaintiff that, when defendant vacated the building, he owed plaintiff $300.05, and, according to his own showing upon the trial, he owed plaintiff $49.41. Upon the part of the defendant, it is claimed that he did work for, and made payments to, the plaintiff, so that'he had overpaid him $5.34. It is also his claim that in February or March, 1893, in response to his request made to the plaintiff that he come to defendant’s house and they would settle, the plaintiff came, and, in response to an inquiry of how he thought the account stood, said he thought defendant owed him $70; that he got his books, and went through the accounts, and, when they came to the item of a colt defendant had let plaintiff have for $60, the plaintiff stated he had forgotten all about the colt; that, when they came to the item of lumber which defendant put into a partition in the building, defendant stated to the plaintiff that, if plaintiff did not want the lumber, defendant would take it out, and would pay him the money, and that plaintiff desired him to leave it there; that they went over all the items, and that plaintiff made no objection to them, and that, including the lumber at the price which he paid for it, which lumber 'was left, as requested by plaintiff, there was a balance due defendant of $5.34; and that plaintiff went away apparently satisfied, and from that time until the suit was brought (nearly six years thereafter) the plaintiff made no claim that defendant was indebted to him. Plaintiff admits he was at defendant’s house at the time stated, but denies that there was any settlement or any admission of the correctness of defendant’s account, and explains his delay in bringing the suit by saying he regarded defendant as insolvent. The record discloses plaintiff did not keep any book account or written memorandum of the payments made to him.

The first group of assignments of error discussed by counsel relates to the charge of the court upon the question of settlement; counsel insisting there was no testimony from which a settlement could be found. We cannot agree with counsel. It is true the witnesses do not say it was then and there agreed the accounts should be settled in full, but it was the claim of the counsel that the purpose of the meeting was to make a settlement; that the accounts were gone over in detail; that,the items and amounts were not objected to; that a small balance, if the lumber was charged at its cost, would be due defendant; that, leaving the lumber out, there would be a small balance due the plaintiff; and that defendant offered to pay the money or leave the lumber, and that plaintiff requested the lumber be left, and it was left. This testimony, if believed by the jury, coupled with the fact that for nearly six years plaintiff made no claim that defendant owed him, fully justified the jury in finding there was a settlement of the accounts. What we have said disposes of the assignments of error relating to the submission to the jury of a special question as to whether there was a settlement or not.

After the jury had been out for a time, they were brought into court, and, an inquiry made if they were likely to agree if they remained out longer, and the foreman announced they were; but it was also said the jury had not agreed upon an answer to the special question, and inquiry was made if it was necessary to answer the special question, and the jurors were instructed they would have to go back and deliberate until they could answer the question one way or the other. While the judge was.talking with the jury, the following occurred:

“Mr. Smith: May I ask you to say to the jury upon whom the burden of proof would rest as to the settlement?
“The Court: I will state this: That the burden of proof on all the propositions necessary to recover is on the plaintiff. To entitle the plaintiff to recover, he must show there is a balance due him. If there is not a balance due him, either by reason of his having been paid or having been settled, he is not entitled to recover. I instruct you, as to all the items of set-off which are disputed, the burden of proof is on the defendant.
“Mr. Smith: I ask the court to say to the jury, the burden of proof would not be upon the plaintiff to show there was no settlement, but, the defendant coming in and claiming it, the burden is on him to prove it.
‘ ‘ The Court: I don’t think it should be said now. If you have anything to be said to the court, it should be said privately. I think I shall make no change in my instructions to the jury on the burden of proof. I will permit you to retire again to your room to consider further of your verdict.”

Counsel thinks he was not well treated, and that he was entitled to have his request given. The trial judge had shown a great deal of patience in the trial of this case. We have a record in it of nearly 100 pages. The learned •judge had in his general charge carefully and properly instructed the jury as to the burden of proof. It is stated by counsel for defendant that they were not in court when this occurred. Be this as it may, there was no occasion for the judge to recharge the jury upon that branch of the case.

It is also claimed the instruction of the court that the special question must be answered amounted to duress, and the judge had no right to say to the jury they must return an answer to the question; citing Harbaugh v. Cicott, 33 Mich. 246; Cole v. Boyd, 47 Mich. 98 (10 N. W. 124); Mechanics’ Bank of Detroit v. Barnes, 86 Mich. 645 (49 N. W. 475). In the cases of Cole v. Boyd, supra, and Mechanics’ Bank of Detroit v. Barnes, supra, the judge instructed the jury they must answer the special questions so they would be consistent with the general verdict, and it was held this defeated the object of the statute. Here no intimation was given as to how the question should be answered, but the court told the jury he would not receive any verdict until they had answered the question. My associates are of the opinion that what was said by the trial judge was not in conflict with what is said in Harbaugh v. Cicott, supra, and was not error.

The record discloses that, in the trial of a libel case between the parties to this suit, the testimony of Mr. Hawley was taken in relation to the genuineness of defendant’s signature to an exhibit which was also in evidence in this case. It was conceded Mr. Hawley was in California. Plaintiff offered the evidence given by him in the other trial. It was excluded upon objection of defendant, and error is assigned; citing Lucker v. Liske, 111 Mich. 683 (70 N. W. 421). In this case the testimony which was admitted was the testimony of a party to the litigation. This is true of another of the cases cited. An admission made by a party is always admissible against him; while, in the other cases cited in this court, the testimony was given in the same case upon a former trial. So far as we know, this court has never passed upon the question. • My associates are of the opinion it is not necessary to pass upon it here. The testimony which was excluded did not bear upon the question of whether a settlement was made or not, and, as the jury found a settlement was made, they are of the opinion that, if the testimony was admissible, its exclusion was not harmful error.

The other assignments of error have been considered, but do not call for discussion.

Judgment is affirmed.

The other Justices concurred.

         Lewis v. Roulo, 93 Mich. 475 (53 N. W. 622).

        Howard v. Patrick, 38 Mich. 795; Dunbar v. McGill, 69 Mich. 297 (37 N. W. 285).


text:
    MALE v. CHAPMAN.
    1. Public Lands — Claims—Confirmation—General Exceptions.
    The commissioner of the general land office, pursuant to the provisions of act of Congress of September 26, 1850 (chap. 71, 9 Stat. 469), providing for the settlement of claims for land at Sault Ste. Marie, confirmed a claim for land, but excepted certain claims by number, “and'any other valid adverse claim which may be found to exist within the limits hereby confirmed. ” Ii/ild, that the general exception in the confirmation, read in connection with the act of 1850, did not leave the claims open to contest in the courts, but the exception of valid claims meant claims found to exist by the officers empowered to act under the statute.
    2. Same — Laches.
    A claimant to public land which had been confirmed to another unless saved by a general exception contained in the order of confirmation, who allowed 30 years to elapse without taking action, is guilty of laches barring the claim.
    3. Same — Practice Before Land Commissioner — Notice.
    Where personal notice of a hearing before the land officers for the confirmation of a claim pursuant to the act of 1850 was served on the parties appearing by the record to have an interest, and the notice was also published, the final determination in the proceeding was binding upon those who acquired title after the institution of the proceedings.
    Appeal from Chippewa; Steere, J.
    Submitted May 14, 1903.
    (Docket No. 54.)
    Decided October 6, 1903.
    Bill by William H. Male against Charles H. Chapman to quiet title. From a decree for complainant, defendant appeals.
    Affirmed.

      John A. Colwell (George A. Cady, of counsel), for complainant.

      John W. Shine, for defendant.
   Montgomery, J.

In 1850, Congress passed an act (Act September 26, 1850; chap. 71, 9 Stat. 469) providing for the examination and settlement of claims for land at Sault Ste. Marie. This act provided that the register and the receiver of the land office, upon filing of claims, should proceed to take testimony as to the occupancy and rights of claimants, provided that a map should be made and transmitted to the commissioner of the general land office, and provided that the decision of the commissioner should in every case be final and binding upon the parties and government, and that he should have power to affirm or modify the decisions of the register and the receiver. There were.two classes of claims provided for, — one to be made by the person or the legal representatives of any person under original claims which had been entered under a previous act of Congress in 1823 (Act February 21, 1823, chap. 10, 3 Stat. 724), and the other the claim of any bona fide occupant who had entered upon lands and made improvements.

The complainant derives his title from the owners of claim No. 131. The defendant claims to be equitably entitled to the land in dispute under a claim made by Samuel Ashmun, and known as claim No. 59. The land in dispute in this controversy is within the boundaries of each of these claims j claim No. 59 covering a portion of the land covered by claim No. 131. The claim of Samuel Ashmun was filed December 21, 1852. On April 4, 1853, the register and the receiver recommended the confirmation of this claim, and, indeed, assumed to confirm it; but, as we have seen by reference to the act, the power of final confirmation rested with the commissioner of the general land office, and no final action confirming this claim No. 59 was had at that time, and none has since taken place.

Again, in 1855, the records show that claim No. 59 was under advisement by the register and the receiver, and that it then was understood to be in conflict with claim No. 131 and other claims. The report favoring the allowance of claim No. 59 was made by the receiver alone, the register being disqualified. The receiver also reported favorably on claim 131, but gave it a width of only 45 links, which would leave it without conflict with claim 59.

Claim No. 131 came before the commissioner for confirmation on the 10th of July, 1858. At this time the claim was confirmed for land within certain metes and bounds, including the land here in controversy, excepting from the land specifically certain claims by number, “and any other valid adverse claim which may be found to exist within the limits hereby confirmed; tthe exceptions herein, special and general, under this No. 131, being hereby expressly excluded from the confirmation and limits of said claim No. 131.” Claim No. 131, as allowed, had a width of 4 chains. The boundaries of 131 included the whole or a portion of claims 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 70, and 71, and all of these claims were excepted from the confirmation in terms and by number, excepting claims 57, 58, 59, and 61; and one of the questions involved in this case is whether, in view of the express designation of these excepted pending claims, the general exception contained in the confirmation of No. 131 should be held to include claim No. 59, then known to be a pending claim in conflict with claim 131.

But the confirmation was not allowed to rest here. On May 1, 1862, Samuel Ashmun, Stephen B. Wood, Julia Hopkins, ánd Samantha Johnson made application to have the adjudication on claim 131 opened, and a rehearing granted. It is asserted in the affidavit of Ashmun that claim No. 131 includes the house and lot where he settled and erected his house on his arrival at the Sault, the same used and occupied by him personally for almost 20 years, and also the one since occupied by him up to the present time. On the rehearing, Samuel Ashmun, in his claim before the register and the receiver, did not assert a claim under 59, but made another claim under No. CO, and, after releasing a portion of that, had the remainder confirmed to him, and an order was mado confirming land claim No. 131, except as to the portions allowed to Ash-mun and other contestants on this hearing. The record shows that personal notice of this hearing was given to all parties known to be interested in claim No. 131, and also notice by publication.

It is contended by complainant that this determination on the rehearing concludes Samuel Ashmun and his grantees. On the other hand, it is contended that, as Samuel Ashmun had at this time parted with his title, and as the statute does not in terms provide for notice by publication, the decision does not conclude the purchaser. The facts, as they appear, are that, shortly after the action of the register and the receiver in 1853, Samuel Ashmun conveyed claim No. 59 to Silas H. Ashmun by deed with warranty against all lawful claims except the United States. Silas H. Ashmun never intervened in the proceeding before the register and the receiver or the commissioner of the general land office. So far as the record discloses, none of these officers had knowledgo of Silas H. Ashmun’s claim.. From the time of the transfer to the date of filing this bill, no proceedings had been taken by him or his grantees, either to secure a confirmation by the commissioner of claim No. 59, or to intervene in claim No. 131. The general exception contained in the confirmation of claim No. 131 must be read in connection with the act of 1850, and, having in view the purposes of this act, it was clearly not the intention to leave the claim open to contest in the courts, and the exception of valid claims found to exist means claims found to exist by the officers empowered to act under the terms of that statute.

Silas H. Ashmun and his grantees have allowed a third of a century to elapse without moving in this matter, and it seems to me that laches alone constitutes a sufficient answer to defendant’s claim. But, more than this, I think it clear that all the notice that the case was susceptible of was given of the rehearing in 1862. Personal notice was served upon the parties appearing by the record to have an interest, and, in addition to this, notice was published. By analogy to an action at law, the final determination in this proceeding would be binding upon those who.acquired title after the institution of the proceedings. 24 Am. & Eng. Enc. Law (2d Ed.), p. 748.

The circuit judge made a decree affirming complainant’s title, and this decree is affirmed, with costs.

The other Justices concurred.


text:
    GOULD v. W. J. GOULD & CO.
    Corporations — Bills and Notes — Execution.
    The president and secretary of a corporation have no implied power to execute commercial paper.
    Error to Wayne; Frazer, J.
    Submitted June 9, 1903.
    (Docket No. 44.)
    Decided October 6, 1903.

      Assumpsit by Loua'M. Gould against W. J. Gould & Company upon a promissory note. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Beversed.'

      Graves, Hatch & Millis, for appellant.

      Dickinson, Stevenson, Gullen, Warren & Butzel, for appellee.
   Montgomery, J.

The defendant is a corporation* but the record does not disclose the purposes of its organization. The present action is based upon a promissory note of $4,000, purporting to be signed “ W. J. Gould & Co., C. H. Gould, L. F. Thompson.” The defendant filed an affidavit denying the execution of the note, and denying that the defendant had any benefit from or consideration for the same. On the trial the plaintiff proved that the signature “W. J. Gould & Co.” was made by C. H. Gould, and that he was president and L. F. Thompson was secretary and treasurer of the corporation at the date of the note. There was no showing that any consideration passed to defendant, nor that the president and secretary were held out as having authority to make notes, nor that they were, by any action of the directors, authorized in this instance to make the note in question. It was objected that the authority of these officers to make the note was not shown, and that, as a consequence, the execution of the note .by the corporation was not proved. The note was, however, received in evidence against defendant’s objection, and this ruling presents the principal question in the case.

The general rule is that the president of a corporation has no implied power to bind the corporation by his signature to commercial paper, and that this power is not presumptively greater in the president and secretary. 21 Am. & Eng. Enc. Law (2d Ed.), 859. See, also, 3 Clark & M. Corp. § 701; 2 Cook, Corp. (4th Ed.) § 716. It is true that the authority to transact business of this character may be implied where it is shown either that the president has been held out as having charge of the business, and as authorized to perform such an act on behalf of the corporation as that in question, or where the corporation is shown to have received and retained the benefits of the transaction. See 4 Thomp. Corp. § 4623. So, where the instrument is‘under the seal of the corporation, a presumption arises that it was executed by authority. Id. It is also true that, where there is evidence showing that the president of a corporation is engaged in managing the business, such powers will be ascribed to him as are requisite in the conduct of the business of the character involved. See Ceeder v. Lumber Co., 86 Mich. 541 (49 N. W. 575, 24 Am. St. Rep. 134); Hirschmann v. Railroad Co., 97 Mich. 384 (56 N. W. 842). But the ruling of the circuit judge in the present case apparently rests upon the idea that the president and secretary are presumed to have authority to execute commercial paper, and that proof that commercial paper was signed by theshifts the burden of proof upon the defendant. We think this holding cannot be sustained upon authority. The only Michigan case tending to support this ruling is Eureka Iron & Steel Works v. Bresnahan, 60 Mich. 332 (27 N. W. 524). But in that case it appeared that, not only was the mortgage in question signed by the secretary and treasurer and president, but that the mortgage was agreed upon and assented to by all the directors and stockholders of the company assembled together, and the mortgage was drafted and executed in their presence. The case, therefore, did not rest upon any presumption of authority.

We are cited to the case of Patterson v. Robinson, 116 N. Y. 193 (22 N. E. 372), in which language is used apparently sustaining the ruling of the circuit judge in the present case. But, from the examination we have been able to give the subject, that case would appear to stand alone, and, for an understanding of the New York rule, should be compared with Columbia Bank v. Gospel Tabernacle Church, 127 N. Y. 361 (28 N. E. 29).

In what we have said above we by no means imply that the court will not take judicial notice of the usual powers of certain officers of particular corporations, such as bank cashiers. But the ruling below cannot be sustained on any such presumption. The execution of the note in question was not sufficiently proved. The other questions presented are not likely to arise on a new trial.

Judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Moore, J. Grant, J.

text:
    LESLIE v. JACKSON & SUBURBAN TRACTION CO.
    1. Street Railways — Negligence —Open Switch — Question por Jury.
    Evidence that an electric car, going at the rate of 15 or 20 miles an hour, ran into an open switch making a curve in the track, whereby a passenger was injured; that the switch was in a public place, where children and boys congregated; that it was not fastened; that an iron bar used for opening the switch was habitually left on the ground near the switch by the employés, and that any one could open the switch with the baiy — justifies the submission of the question of defendant’s negligence to the jury.
    2. Personal Injuries — Damages—Evidence—Declaration.
    Evidence relative to the neuritis of the sciatic nerve is admissible, under a declaration for damages for personal injuries averring that plaintiff was bruised and wounded, that he suffered a concussion of the spine, and injuries to the tissues, and nerves of the hip, with consequent wasting and shrinking of the leg.
    3. Same — Pre-existing Injury — Instructions.
    Where, in an action for personal injuries, a pre-existing injury was shown, which had not prevented plaintiff from working, nor affected the parts of the body for injuries to which the suit was brought, an instruction that plaintiff could not recover for defects which existed before the accident, nor effects due to the former condition, or its growth or development, but that he was entitled to only such damages from decreased earning power as, in accordance with his former condition, the jury should consider just, properly stated the rule of damages.
    4. Trial — Remarks op Counsel.
    Characterizing defendant’s witnesses as cattle by counsel in his argument is not reversible error, where counsel is rebuked by the court, retracts his statement, and such remarks are not shown to have influenced the jury. Grant, J., dissenting.
    Error to Jackson; Smith (Clement), J., presiding.
    Submitted'June 30, 1903.
    (Docket No. 133.)
    Decided October 6, 1903.

      Case by Stephen W. Leslie against the Jackson & Suburban Traction Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      T. E. Barlcworth and Worrall Wilson, for appellant.

      John E. Henigan (Charles A. Blair, of counsel), for appellee.
   Moore, J.

On June 18, 1901, plaintiff was a passenger on one of defendant’s cars. • The car ran through an open switch at the intersection of Page avenue and Railroad street. The plaintiff received severe injuries. He brought this suit, and recovered a judgment. The defendant brings the case here by writ of error. The negligence charged may be briefly stated:

“First. Want of reasonable care in not having the switch properly set and adjusted, and in not keeping the implements used by its servants and employes in setting and adjusting the switches so that children and others might not get them and improperly use them, and that some child or other person took the implement and moved the switch.
“Second. The failure to have the switch properly set and adjusted, and the running at a high rate of speed when the switch was adjusted for Railroad street instead of Page avenue.
“Third. The failure to approach the switch with caution and with the car under control.”

It is claimed there was no testimony that would warrant the submission of the case to the j ury under any of these claims. Railroad street runs east and west. Page avenue runs in a northerly direction. Leading from Page avenue to Railroad street was a switch connecting the track on Page avenue with the track on Railroad street, which was constructed only a few rods on Railroad street. It is claimed by plaintiff that this switch is at a public place, where a good many children, and especially boys, congregate; that it was not fastened; that it was opened and closed by the use of a small iron .bar, which was habitually left by the employes of the road on the ground near the switch, where anybody who desired to do so could take it and open the switch; that, upon the date in question, the car approached this switch at a rate of 15 or 30 miles an hour; that some one had thrown the switch open, making a curve in the track, which fact the motor-main did not observe, and, as a result thereof, plaintiff received severe injuries. This case was tried before the opinion was handed down in the case of Noe v. Railway Co., 133 Mich. 153 (94 N. W. 743). The facts disclosed in this case show a much greater degree of negligence than was disclosed in the case of Noe v. Railway Co., supra, and we think there was a case for the jury.

It is claimed the court erred in admitting testimony relative to the neuritis of the sciatic nerve, because it was not averred in the declaration. The averment is:

“And thereby the plaintiff was then and there violently thrown to and upon the ground there, and was thereby greatly bruised, hurt, and wounded, and sustained a severe concussion of the spine, and the tissues and nerves in the gluteal region of the right hip were severely bruised and injured, causing a great wasting and shrinking of the right leg, and the nerves, muscles, and tissues thereof; and he has become permanently disabled from performing manual labor * * * from thence hitherto, and has suffered great pain and anguish of mind and body, and will continue to so suffer iq the future, and became and was sick, sore, lame, and disordered, and so remained for a long space of time, to wit, from thence hitherto,” etc.

We think the declaration was broad enough to admit this testimony, under Johnson v. McKee, 27 Mich. 471, and Montgomery v. Railway Co., 103 Mich. 46 (61 N. W. 543, 29 L. R. A. 287); Strudgeon v. Village of Sand Beach, 107 Mich. 496 (65 N. W. 616); McKormick v. City of West Bay City, 110 Mich. 265 (68 N. W. 148); Snyder v. City of Albion, 113 Mich. 375 (71 N. W. 475); Beath v. Railway Co., 119 Mich. 512 (78 N. W. 537); Fye v. Chapin, 121 Mich. 675 (80 N. W. 797).

It is claimed the court erred in declining to give the following request:

“The plaintiff is not entitled to recover for defects which existed before the accident, and yonr verdict must not ignore these conditions. Whatever effects in his present situation are due to such former condition, or its growth or development, plaintiff cannot hold defendant liable for; and, in awarding damages, if you should find that the negligence of the defendant is established, nothing should be allowed on account of any conditions which grow out of or connected with the former defects.”

The judge charged the jury upon that subject as follows :

“In considering the question of damages, I instruct you that plaintiff is not entitled to recover for defects which existed before the accident, and your verdict must not ignore these conditions, if you find such conditions existing. Whatever effects in his present situation are due to such former condition, if any, or its growth or development, plaintiff cannot hold defendant liable for; and, in awarding damages, if you should find that the negligence of the defendant is established, nothing should be allowed on account of any conditions which grew out of, or are connected with, the former defects, if any. The plaintiff is only entitled to such damages on account of decreased earning power as, in accordance with his former physical condition, you consider just; and you are at liberty to disregard the depreciation thereof, if you find it existed prior to the accident, arising out of the previous physical defects of the plaintiff.”

The pre-existing injury, and its nature and extent, are substantially stated in the following excerpt from the testimony of said plaintiff:

“The injury occurred when I was 14 years old, in Wood county, Ohio. It was caused by falling on the ice. I have not been prevented from working, as a result of that injury, since I have been here. * * * The injury affected my hip joint or leg. It was not my right leg. It was my left one. It did not affect my back. Of course, it was jarred in that joint. I didn’t say that it threw me over when I got tired. I said I stood stooped to rest myself. Just changed my position, the same as you would if you were tired. It was not because of the weakness in my back.”

We do not think, under the proofs, there was any failure to properly state the law.

One other question calls for attention. During Mr. Henigan’s argument, he characterized some of the defendant’s witnesses as cattle, to which Mr. Barkworth asked an exception.-

The Court: I hardly think I would make those remarks. I would hardly class them as cattle.
Mr. Henigan: I will retract that.
Mr. Barkworth: I don’t think the judge’s remark cures the error. I don’t want to waive my exception.
“Mr. Blair: I don’t think Mr. Henigan intended to say the men were cattle.”

We are all agreed the remarks of counsel were highly improper, and deserved a much severer rebuke than was given by the trial judge. Witnesses attend court in response to subpoenas, and are entitled to consideration, instead of vituperation. . If there is anything in the testimony of the witness which calls for criticism, it is always proper to make it, but it does not justify calling him opprobrious names. If counsel had any purpose in desig-' nating the witnesses as cattle, it must have been to prejudice the jury against them. If we were satisfied that purpose had been accomplished in this case, we should not hesitate to reverse it for that reason. We are of the opinion, however, that, with the average juror, language of this character is not likely to have the effect expected by the one who utters it. When taken in connection with what was said by the judge and by the counsel associated, with the attorney who uttered it, we are not satisfied the occurrence worked harm to the defendant.

The other questions raised by counsel have been examined, but we do not deem it necessary to discuss them.

Judgment is affirmed.

Hooker, C. J., Carpenter and Montgomery, JJ., concurred with Moore, J.

Grant, J.

{dissenting). I think the record shows that the plaintiff made a case proper to be submitted to the jury, under the majority opinion in Noe v. Railway Co., 133 Mich. 152 (94 N. W. 743). But I think the judgment should be reversed for another reason. The attorney for the plaintiff, in his argument to the jury, called the defendant’s witnesses “cattle.” The attorney for the defendant properly took an exception, when the court said:

“ I hardly think I would make those remarks. I would hardly class them as cattle.
Mr. Henigan: I will retract that.
“Mr. Barkworth: I don’t think the judge’s remark cures the error. I don’t want to waive my exception.”

Counsel do not make such remarks to juries unless they think that they and their clients will profit thereby. It is true that such unjustifiable and uncalled-for remarks ought to be prejudicial to the cause of the one in whose interests they are made. But courts have universally recognized the fact that counsel make them for a purpose, viz., to prejudice the jury. Courts cannot say that that purpose has not been accomplished, and have, as a rule, reversed judgments for the use of such language, unless the court has promptly rebuked the attorney, and so instructed the jury as naturally to counteract the poison of the language. The language in this case deserved a prompt and severe rebuke. So far from the language of the court being a rebuke, I think it rather added to the sting. Such mild language would rather convey the idea that there was some doubt in the mind of the judge as to the impropriety of the language.

Nor do I think that the retraction took away the sting. It is one of those cases where the courts hold that the effect of the language is not removed by a retraction. If it be the rule that a retraction is the antidote, attorneys disposed to indulge in such unprofessional conduct will, for the sake of the effect upon the jury, use the language, and then say they retract it. The only proper antidote is the prompt and sharp rebuke of the presiding judge, and an instruction to the jury.


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    PAYE v. TOWNSHIP OF GROSSE POINTE.
    1. Constitutional Law — Local Self-Government — Highways.
    Act No. 501, Local Acts 1903, creating the village of Fairview out of the township of Grosse Pointe, and. providing that money which had been raised by loan by the township for paving a street within the boundaries of the village should be turned over to the authorities of the village for expenditure, is not unconstitutional as violating the right of local self-government.
    2. Same — Title to Act.
    The title of Act No. 501, Local Acts 1903, viz., “An act to incorporate the village of Fairview in the township of Grosse Pointe, Wayne county,” is sufficient to authorize a provision for the expenditure by the village authorities of a fund previously raised by the township for highway purposes.

      Certiorari to Wayne; Brooke, J.
    Submitted October 6, 1903.
    (Calendar No. 20,151.)
    Decided October 12, 1903.

      Mandamus by Charles A. Paye, treasurer of the village of Fairview, against the township of Grosse Pointe and its officers, to compel the transfer of certain funds to relator. From an order granting the writ, respondent township brings certiorari.

    Affirmed.

      Moore & Moore, for relator.

      James H. Pound, for appellant.
   Montgomery, J.

This is certiorari to review mandamus proceedings.

In 1901, by Local Act No. 303, the legislature author- ' ized the township board of the township of Grosse Pointe to declare it expedient to grade or otherwise improve Jefferson avenue and Mack avenue, in said township, and to cause estimates to be made of the cost of such improvement or improvements, and to fix the amount necessary to be raised for the purpose of such improvements, and the amount necessary to be raised by the issue and sale of bonds of said township for that purpose. It then provided for a vote of the electors' upon the proposition for an issue of the bonds to the amount determined. Action was taken upon this by the township board, and the proper amount to be used in paving each particular street and each portion thereof was specified. Bonds were issued and sold to the amount of $176,890. The board thereafter contracted for the paving, except that portion of Jefferson avenue lying between the easterly limits of the city of Detroit and the Cadieux road, now in the village of Fairview, and as to that particular piece of pavement they have done nothing.

On May 28, 1903, the legislature passed an act creating the village of Fairview. Act No. 501, Local Acts 1903. By the terms of this act the whole of Jefferson avenue between the easterly limits of the city of Detroit and the Cadieux road is within the corporate limits of the village. The act provided that the amount raised by the sale of the bonds of said township of Grosse Pointe, which was designed for the improvement of that part of Jefferson avenue, together with all accretions thereon by way of interest or otherwise, should be paid over by the township authorities to the village treasurer. The mandamus below directed the township authorities to comply with this requirement of the statute, and it is to review this order that this action is brought.

It is contended by respondent that this act is unconstitutional, as in violation of the right of local self-government. There is no doubt of the legislative power to designate the authorities which shall expend highway moneys, and there is no longer any inhibition from withdrawing this power from the highway commissioner. Campau v. Highway Commissioner, 132 Mich. 365 (93 N. W. 879). The only question about which there can be any doubt is whether this money can be withdrawn from the township as a distinct political organization, and turned over to the authorities of the village. We are satisfied that this was entirely competent for the legislature. This fund was raised for a specific purpose, to be expended in the repair of a certain street. When raised, this fund became a trust fund, to be diverted to no other purpose. The change in the political authority over this territory, by which the village authorities became the only ones who have control of this highway, and the only right to expend the money upon it, renders it not only competent, but essential, that the fund shall be placed in the hands of the authorities having the power to expend it. It is claimed that the provision for the expenditure of this fund was not within the title of the act, but we think the purpose was sufficiently indicated by the title. People v. Mahaney, 13 Mich. 481; Messenger v. Teagan, 106 Mich. 654 (64 N. W. 499); Soukup v. Van Dyke, 109 Mich. 679 (67 N. W. 911).

It is further claimed that the order of the court compels the-payment by the respondent of money in excess of the amount in its hands. TTpon that subject the return of the circuit judge shows the following:

“ Thereafter testimony was taken showing that the facts and figures in regard to amounts were correctly'stated in the petition for mandamus, and counsel for the petitioner submitted a computation showing the amount he claimed was due the petitioner under the facts alleged in the petition, and’ this computation was submitted to counsel for the respondents, who pointed out no errors therein after sufficient opportunity therefor, and the amount so fixed was $86,-256.90, including interest up to August 3, 1903. But it was claimed for and on behalf of the respondents that they were entitled to deduct from said amount the legal expenses which they (the respondents) claimed to have incurred in litigation and inspection and preliminary surveys over the pavement of Mack and Jefferson avenues; but it was claimed on the part of the petitioner that he was entitled to the whole amount of said last-mentioned sum, without any deduction whatever, and particularly without any deduction for costs and expenses of litigation. The respondents were unable at that time to state the exact amount of money they had expended, and the amount of liability they had incurred, in said litigation and inspection and preliminary surveys, but they stated that the amount would not exceed $5,000, and that $5,000 would be a sufficient sum to retain in their hands for their protection on account of the money so expended and the liability incurred.”

The order of the circuit judge is affirmed.

The other Justices concurred.


author: Carpenter, J.

text:
      In re HARNEY.
    Prisons — Allowance op Good Time — Third Term.
    1 Comp. Laws, § 2112, providing that any convict who has already served a second term in State prison shall be allowed no good time, does not apply to one who has served a second term in said prison under a conviction for an offense not punishable by law by imprisonment in such prison.

      Habeas corpus proceedings by John Harney to procure his discharge from the State prison at Jackson.
    Submitted October 6, 1903.
    (Calendar No. 20,211½.)
    Prisoner discharged October 22, 1903.

      Parkinson & Campbell, for petitioner.

      Charles A. Blair, Attorney General, for respondent warden.
   Carpenter, J.

Petitioner is an inmate of the State prison at Jackson. He was sent to that institution December 14, 1894, for a term of 10 years. He admits that prior to this time he had served a term of imprisonment in that institution of 1 year. If petitioner is now serving his second term in said prison, his allowance of time for good conduct, under section 2112, 1 Comp. Laws, entitles him to his freedom. It is claimed, however, that petitioner had served his second term before his present term of imprisonment commenced. If this is true, his detention is legal, for section 2112, 1 Comp. Laws, provides:

“If any convict has already served a second term in said prison, he shall be allowed no good time, but shall be held until the full completion of his sentence.”

The facts upon which said claim is based are these: Before petitioner was convicted of the offense for which he is now being punished, he served four terms of imprisonment in the State house of correction and reformatory at Ionia. That a term of imprisonment in that institution is “ a term in said prison,” under the proper construction of section 2112, was determined by this court in the unreported case of Armstrong (decided in 1898) and in Re Coy, 10 Det. L. N. 557. Each of these terms of imprisonment in the Ionia institution was 90 days in length. He was sentenced to one of these terms of imprisonment by a circuit judge. He was sentenced to each of the other three by a justice of the peace. The offense of which he was convicted in each case was that of assault and battery. Neither the justice of the peace (see In re Silverthorn, 73 Mich. 644 [41 N. W. 834]) nor the circuit judge (see Brown v. People, 39 Mich. 57) had jurisdiction to impose this punishment.

In determining what term of imprisonment petitioner is now serving, shall we count any of these terms spent in the Ionia institution ? The imprisonment in that institution was justified by no law. It was sufficiently illegal to be open to collateral attack by a writ of habeas corpus. See In re Silverthorn, supra. One is not “serving a term,” within the meaning of the act, when he is detained in prison without warrant of law. We think it obvious that the legislature intended to deprive the convict serving his third term of the benefit of all allowance for good time because he had twice been found guilty of a crime punishable by imprisonment in a State prison, and received such punishment therefor. Until he has been twice convicted of such an offense, a convict cannot serve his second term, within the meaning of the act. Under the contrary construction, the convict loses the good time, not through any fault of his, but through the mistake of the judge who sentenced him. When he served a sentence which was in at least one sense unlawful, he paid a sufficient penalty for this mistake. His misfortune should not be doubled, as it would be if he were deprived of his good-time allowance.

The petitioner should be discharged.

The other Justices concurred.


text:
    TOWNSHIP OF GROSSE POINTE v. FINN.
    1. Municipal Bonds — Payment—Credit of Township.
    Act No. 534, Local Acts 1903, by authorizing the township board of Grosse Pointe to issue and sell bonds and place the proceeds with the township treasurer, necessarily implies the right to pledge the credit of the township for their payment.
    2. Municipal Corporations — Local Self-Government — Bonds— Vote of Electors.
    The legislature has the power to confer upon a township board the right to issue and sell bonds for street paving without ■ submitting the question to the electors.
    Error to Wayne; Donovan, J.
    Submitted October 7, 1903.
    (Docket No. 247.)
    Decided October 22, 1903.

      Assumpsit by the township of Grosse Pointe against Matthew Finn for the breach of a contract to purchase certain bonds. From an order overruling a demurrer to the declaration, defendant brings error.
    Affirmed.

      Geer & Williams and II. JR. Martin (Miller, Smith, Alexander & Paddock, of counsel), for appellant.

      James H. Pound, for appellee.
   Moore, J.

The legislature in 1903 passed an act which authorizes the township board of the township of Grosse Pointe to pave, gravel, or otherwise improve a certain portion of Jefferson avenue within the limits of the township. For the purpose of defraying the cost of the work, the township board was authorized to issue and sell the negotiable bonds of' the township to an amount not to exceed $25,000, and to raise each year by assessment on the taxable property in the township a sum sufficient to pay the interest on the bonds, and in the same manner such further sum as it might deem proper to raise for the purpose of providing a sinking fund with which to pay the bonds at their maturity. Act No. 534, Local Acts 1903.

The declaration of the plaintiff alleges that the township board has by resolution authorized the issue of $25,000 of bonds; that it advertised the bonds for sale; that the defendant was the highest bidder; that the plaintiff and the defendant entered into a written contract, whereby the plaintiff agreed to sell, and the defendant to purchase, the bonds for a stated sum; that the bonds were tendered to the defendant, and that he refused to receive them and pay the purchase price; and that as the result the plaintiff has been damaged, etc. The defendant demurred to this declaration, alleging that the act of the legislature was unconstitutional for the reason that the act deprives the qualified electors of the township of their right to determine by vote, first, the improvements which shall be made by the township; second, the money which shall be borrowed by the township; third, the taxes to which they shall be subjected for the payment thereof; and therefore that said act conferred no authority upon the township board to make the contract for the sale of the bonds; also that the act does not expressly authorize the township board to pledge the faith and credit of the township for the payment of the bonds, and therefore that the board has no authority to thus pledge the faith and credit of the township. The circuit judge overruled the demurrer, and held the act was constitutional. The defendant has sued out a writ of error to have the action of the circuit judge reviewed by this court.

Does the act give the board authority to pledge the credit of the township for the payment of the bonds ? The authority conferred upon the board to issue the bonds and to sell them, and to have the proceeds thereof paid to the township treasurer, necessarily implies the right to pledge the credit of the township. 1 Dill. Mun. Corp. § 127, and note.

The second question, whether the act is an invasion of the right of local self-government, and hence unconstitutional, is more difficult. In support of the contention that it is such an invasion, we are cited to the cases of People v. Hurlbut, 24 Mich. 44 (9 Am. Rep. 103); People, ex rel. Board of Park Com’rs, v. Detroit Common Council, 28 Mich. 228 (15 Am. Rep. 202); Township of Ada v. Kent Circuit Judge, 114 Mich. 77 (72 N. W. 35); Moreland v. Millen, 126 Mich. 381 (85 N. W. 882); and others. These cases undoubtedly hold that, in relation to local affairs, the legislature may not withhold authority from the local authorities and confer it upon an outside agency. An examination of the cases will show they are very different from the one before us. In Township of Ada v. Kent Circuit Judge the legislature said that certain townships and the county of Kent should raise the sum of $10,000 to be used in the construction of a bridge, in violation of section 9, art. 10, of the Constitution, which requires a vote of the electors before so large a sum of money shall be raised by tax for such a purpose. In the other cases the legislature itself undertook to appoint officers who should administer local affairs,, or to authorize the governor to do so, and it was held the State might not interfere and control by compulsory legislation the action of the local authorities in matters exclusively of local concern. In the case at bar the act imposes the discretion to raise and expend the money upon a local board, chosen by the electors of the district in which the money is to be raised and expended.

In Commissioners of Parks & Boulevards of Detroit v. Rush, 84 Mich. 154 (47 N. W. 676), the commissioners of parks were authorized by the legislature to acquire-lands for purposes named in the act, subject to the approval of the common council. The controller refused to sell the bonds because their issuance was not approved by the board of estimates. In the opinion written by Champlin, C. J., among other things it was said:

“ It is claimed on the part of counsel for respondent that the universal custom since 1802, when the town of Detroit was incorporated, has been to submit every item of expenditure to a meeting of citizens for discussion and approval, and that that custom has been preserved through different bodies, who have taken the place of the citizens’ meeting; that therefore it is the design of the statute still to require every item of expenditure to be passed upon by some authority which represents the citizens’ meeting of the-early days of the municipality. It is true that this check upon the expenditure of money has been preserved in the legislation concerning the city of Detroit. It is doubtless, however, competent for the legislature to provide that certain expenditures may be made upon approval of the common council, and it is competent also for them to abolish entirely the board of estimates, which has come now to represent the citizens’ meeting.”

The controller was directed to sell the bonds.

In Tillotson v. City of Saginaw, 94 Mich. 240 (54 N. W. 162), an act of the legislature authorizing the common council of Saginaw to issue bonds was construed by the court, and it did not therein seem to be questioned that the legislature might confer this right upon the common council without requiring the electors to pass upon the question. In Common Council of Muskegon v. Gow, 94 Mich. 453 (54 N. W. 170), the only question involved was whether the common council could authorize the-issuance of bonds within certain limitations without a vote of the electors, and it was held it could do so. We understand that the charters in most cities and villages in the State contain like powers.

The remaining question is, Can the legislature confer the powers attempted to be given by the act upon a township board already in existence, and which was not elected in the expectation that it might exercise any such powers? Some light was thrown upon this question in Campau v. Highway Commissioner, 132 Mich. 365 (93 N. W. 879), and Campau v. Township Board, Id. In that case certain powers over the highways theretofore exercised by the highway commissioner were withdrawn from him, and conferred upon the existing township board. Justice Montgomery, speaking for the court, said:

“ One question is made in the certiorari case which is not presented by the chancery record, but which is important to both cases, viz., whether the law is unconstitutional. It is contended that it is, and for the reason that it withdraws from the highway commissioner his functions, and that, as he is a constitutional officer, this cannot be done. Without expressing any view as to the validity of this act under the Constitution as it stood prior to the amendment of 1899 (section 49, art. 4), we think that section is a sufficient and complete answer to the plaintiff’s contention. It provides that the legislature may provide for the laying out, construction, improvement, and maintenance of highways, bridges, and culverts by counties and townships, and may authorize counties to take charge of any highways within their limits for such purposes, and may modify, change, or abolish the powers and duties of township commissioners and overseers of highways. Language could not well be more plain, and we think it can'not be said that this constitutional amendment was intend•ed exclusively to provide for a county road system. This may have been the prime object, but it in terms confers upon the legislature authority to provide for the laying out and maintenance of highways by townships as well as ■counties, and gives the broadest power to modify or abolish the powers and duties of township commissioners and ■overseers of highways.”

The case is not wholly in point, because the question of whether the money should be raised or not was submitted to the electors at a township meeting, and also because the precise question involved here was not raised there.

As we have already stated, the township board is a local board, elected by the electors. It ordinarily represents the-township. Its membership is made up of men whose duties-are the most important of those discharged by any. township officer, presumably calling for the highest order of intelligence and probity of any of the township officers. ' The new duties conferred by the act are germane to those heretofore exercised by the township board, and we think it was competent to confer upon them these new duties.

Judgment is affirmed.

The other Justices concurred.