text:
    ANDREAS v. SCHOOL DISTRICT NO. 4, FRACTIONAL, OF THE TOWNSHIP OF LEAVITT.
    1. Splitting Cause op Action—Set-opf—Justice’s Court.
    Where a defendant in justice’s court interposes an indivisible cause of action for §150 as a set-off, then withdraws §50 of it, and has judgment for the §100, he is barred, on the principle against splitting causes of action, from suing for the remaining §50, though the justice, under 2 Comp. Laws, §2741, could not render judgment for more than §100.
    2. Same—Action Against Principal and Sureties.
    That the defendant was not the only defendant in the action, and the claim interposed was a debt due him alone, is immaterial, the action being on a contract against him and others as his sureties, in which case he was the real defendant, authorized by the statute (1 Comp. Laws, § 776, subd. 11) to interpose such a set-off.
    3. Same—Unliquidated Damages.
    That the claim on which defendant was sued was for unliquidated damages, so that under section 776, subd. 5, he had no right to interpose the set-off, is immaterial, he having successfully interposed it.
    Error to Oceana; Russell, J.
    Submitted October 5, 1904.
    (Docket No. 8.)
    Decided October 18, 1904.
    Assumpsit by Charles Andreas against school district No. 4, fractional, of the township of Leavitt, for an alleged balance due on a building contract. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      F. E. Wetmore and Wallace Foote, for appellant.

      Hartwick & Skeels, for appellee.
   Carpenter, J.

This case arises out of a contract whereby plaintiff agreed to build a schoolhouse for defendant. After plaintiff had completed the building, and when there was $150 of the contract price unpaid, defendant’s building committee, alleging that plaintiff had not performed his contract, refused to pay the balance. The school district then brought an action in justice’s court against Andreas, plaintiff herein, and his sureties, on a bond conditioned on the faithful performance of his contract. The defendants therein pleaded the general issue and gave notice of a set-off due Andreas, amounting to $170. This $170 consisted of the $150 balance unpaid on the contract and several items for extras, aggregating $20. The trial took place before a jury, and after the evidence and arguments were concluded defendants “moved to withdraw $70 of their bill of set-off from the consideration of the jury.” Plaintiff school district objected “to the withdrawal of any part of defendants’ set-off at this time, unless they specified items.” No items were specified. Defendants recovered a verdict and judgment of $100, which the plaintiff school district subsequently paid.

This suit is brought to recover the balance withdrawn in the first case, as above stated. It was commenced in justice’s court, where plaintiff recovered a judgment. It was appealed to the circuit court, and on the trial in that court defendant insisted that the principle which prevents a party splitting up an indivisible cause of action constituted a defense. The trial judge denied the application of this principle, and plaintiff obtained a verdict and judgment. Was this decision correct? It is unnecessary to determine in this case whether or not plaintiff had the right to withdraw from the consideration of the first jury his items for extras. He did not indicate, and he refused to indicate, his intention to withdraw those items. His intent was to withdraw a balance of $70, of which at least $50 was a part of an indivisible balance due on the contract. He intended, therefore, to split up an indivisible cause of action. If he recovers in this case, it must be on the ground that the law will give effect to such an intent. The principle that an indivisible cause of action cannot be split up is well settled in this court. See Dutton v. Shaw, 35 Mich. 431; Allison v. Connor, 36 Mich. 283; Milroy v. Mining Co., 43 Mich. 231; Continental Ins. Co. v. Lumber Co., 93 Mich. 139.

It is contended that that principle is inapplicable to this case, because plaintiff, being one of several defendants, had no right to set off an indebtedness due to him alone. This view was adopted by the learned trial judge. In doing this he overlooked the fact that the action was upon a contract against plaintiff as principal and his codefendants as sureties, and that, therefore, under section 776, subd. 11, 1 Comp. Laws, the right of set-off existed. See Busch v. Jones, 94 Mich. 223; McGraw v. Union Trust Co., 136 Mich. 521.

It is said that plaintiff had no right to assert his set-off in justice’s court, because the claim upon which he was sued was for unliquidated damages. See section 776, subd. 5, 1 Comp. Laws. But he did assert it, and thereby obtained a judgment. The present claim of the plaintiff is that his judgment was the result of an erroneous ruling. The question before us is whether that erroneous ruling lessens the effect of the judgment. It is authoritatively settled (see 2 Freeman on Judgments, § 337) that it does not.

It is said that plaintiff had a right to split up his cause of action because the justice could not, under section 4721, 2 Comp. Laws, render a judgment for more than $100. This argument is not supported by authority and is opposed to reason. It cannot be urged that, because the defendant sued him in justice’s court, the law compelled plaintiff to enforce his set-off there. Indeed, he himself contends, as above stated, that the law forbade such enforcement. We must therefore hold that plaintiff voluntarily chose to enforce his claim in the justice’s court, and it is only just that he should abide the consequences of such choice. It is no argument against this conclusion that in England there is a statute which it is held (see Webster v. Armstrong, 54 L. J. Q. B. [N. S.] 236) gives the right, after one has asserted his claim in the mayor’s court as a counterclaim to one there asserted against him, to recover the excess in another suit. We have no such statute.

It is contended that the judgment in the first suit is no bar because, plaintiff’s sureties being codefendants, the parties in that suit were not the same as in the present suit. This point is not well taken. Plaintiff was the real party in the first suit, and the judgment concludes the real parties, See Bachelder v. Brown, 47 Mich. 366. In our judgment, the principle of law which forbids the splitting up of an indivisible cause of action applies in this case.

The judgment is reversed, and a new trial granted.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    CLEMENT v. PERE MARQUETTE RAILROAD CO.
    1. Railroads—Killing Stock—Failure to Fence—'Variance.
    In an action against a railroad company for killing horses on its track, the negligence alleged being failure to maintain the statutory'fence, and it being alleged that the horses went upon the track at a point where such fence was required, proof that the horses got upon the track as alleged is necessary to plaintiff’s case, and evidence on the part of defendant that they went there over proper cattle-guards is proper.
    2. Same—Cattle-Guards—Suettoienoy.
    The sufficiency of a cattle-guard in good repair, of a pattern approved by the commissioner of railroads, as provided by the statute (2 Comp. Laws, § 6294), is not to be questioned.
    Error to Kalkaska; Chittenden, J.
    Submitted October 5, 1904.
    (Docket No. 13.)
    Decided October 18, 1904.
    Case by Elisha Clement against the Pere Marquette Railroad Company for the alleged negligent killing of plaintiff’s horses. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Frederick W. Stevens (Charles McPherson, of counsel), for appellant.

      Wayne Simmons (Parm C. Gilbert, of counsel), for appellee.
   Hooker, J.

Defendant, a railway company, has brought error from a judgment rendered against it in an action for negligently killing two horses owned by the plaintiff. The declaration charges negligence consisting of a failure to erect and maintain the statutory fences upon the line of defendant’s railway, and that plaintiff’s horses strayed and went upon the’ defendant’s right of way at' a place where such fences were required, and were struck and killed by defendant’s locomotive. By way of defense the defendant introduced proof that the horses entered by passing over the cattle-guards, which were such cattle-guards as had been prescribed by the commissioner of railroads in compliance with the statute, and that they were at the time in good condition and repair; there being a claim, and perhaps evidence tending to show, that these cattle-guards were adequate as against most horses and cattle.

Counsel for the plaintiff maintain that the only questions before the jury were:

First. Did the defendant maintain lawful fences?

Second. Were the horses killed upon defendant’s right of way by its locomotive ?

Counsel say that defendant had no right to bring into the case the question whether the horses were killed upon the highway, or crossed the cattle-guard to get upon the track. We think counsel have overlooked the necessity of proving that the injury resulted from defendant’s failure to fence, and that, therefore, it was competent for defendant to show that the horses did not go upon the track across a part of the line that should have been fenced. To make out his case it was necessary to prove such an entry upon the right of way as he had alleged. Proof by the plaintiff that they came over the cattle-guard would have been a variance, and such proof for the defendant tended to disprove the charge.

In charging the jury the judge said that they might find for the plaintiff, although the horses were found to have entered over the cattle-guard, and not by reason of the absence of the statutory fence, provided they found that the cattle-guard was not in good condition, or was not a good and sufficient cattle-guard, which would turn back and restrain stock under ordinary circumstances. He also said:

“ It is a question of fact in this case whether the cattle-guard was in good repair. If it was not in good condition and of the proper pattern, and if the horses of the plaintiff went upon the right of way of defendant and were killed by reason of such defect, then the plaintiff is entitled to recover, and your verdict will be for the value of said horses.”

The statute (Act No. 165, Pub. Acts 1889; 2 Comp. Laws, § 6294) contains a requirement for fences and cattle-guards, and contains the following proviso:

“Provided, that any fence or cattle-guard which shall have the written approval and indorsement of the commissioner of railroads of this State, and which fence is not less than four and one half-feet in height, and is otherwise equal in durability, strength, and sufficiency to turn animals and stock to the fences herein described, shall be a legal railroad fence or cattle-guard.”

The record shows that the cattle-guard was of a kind prescribed in writing by the commissioner of railroads, and it is said that there was uncontradicted evidence that it was in good repair and condition. If that is true, it was error to leave to the jury the question of its condition and repair in the language used; but, in any event, it was error to instruct the jury that they might find the defendant liable if, in their opinion, the evidence showed that (although in good condition and repair) it was not good and sufficient, or would not turn back and restrain cattle under ordinary circumstances. The law precludes such an inquiry, for it provides that the action of the commissioner is conclusive upon that question. See La Flamme v. Railway Co., 109 Mich. 511 (67 N. W. 556). It was also error to permit evidence on the part of the plaintiff that cattle-guards of that pattern, in good condition and repair, would not ordinarily turn cattle and horses.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    PEOPLE, for Use of THE C. H. LITTLE CO., v. GRANT.
    1. Sales—Credit—Several Items—When Time Begins to Run.
    Where goods are supplied to a contractor from time to time, as required on a contract to furnish on 30 days’ time the material necessary to complete several contracts, the 30 days begin to run, not from the date of the last«item, but from the date of each invoice.
    3. Principal and Surety — Discharge op Surety — Extension op Time.
    The acceptance from a principal of a promissory note for an existing account, payable at a time beyond which the account would be payable, is an extension of the time of payment which discharges the sureties on the account debt.
    Error to Wayne; Erazer, J.
    Submitted October 6, 1904.
    (Docket No. 22.)
    Decided October 18, 1904.
    Assumpsit by the people of the State of Michigan, for the use and benefit of the O. H. Little Company, against James Grant, principal, and John Archer and Julius Porath, sureties, upon a statutory bond. There was judgment for plaintiff for less than the amount claimed, and plaintiff brings error.
    Affirmed.

      Willard E. Warner, for appellant.

      John E. Moloney, for appellees.
   Hooker, J.

James Grant was principal, and the other defendants sureties, upon two statutory bonds given to secure payment for labor and materials upon public sewer contracts made by the former. The defendant Grant had a running account with the plaintiff for materials. Goods were sold to him upon 30 days’ credit, and the items were numerous. Payments were also made from time to time. A monthly balance was made, and monthly statements of account were furnished by the plaintiff to Grant. No interest charge was included in them.

On February 1, 1903, a balance was due of-..........$3,031 43
Items were furnished in February___________________ 311 60
Making a total March 1st of_______________________$3,343 03

On February 7th defendant Grant gave to plaintiff his promissory note for $1,500, with interest at 6 per cent.,' due in one month, without the knowledge of the sureties. This was negotiated, and, being applied to the account,

Reduced the balance March 1st to-------------------$1,743 03
March items........................................ 88 74
$1,831 76
Less cash in March. ................................. 73 74
Leaving balance April 1st...........................$1,759 03
Items in April______________________________________ 90 97
$1,849 99
Less cash in April..................................- 310 17
Balance May 1st---......................-........$1,639 82

Upon the maturity of the note of February 7th, Grant paid the interest, and gave plaintiff a second note in renewal, payable 30 days after date; and upon April 6th he paid the interest, and again renewed the note. When the note of February 7th was taken, plaintiff made an entry upon its cashbook as follows: “James Grant on acct. $1,500.” The amount was credited to Grant’s account on the ledger, deducted from monthly balance, and never charged back to the open account. It was debited to ‘ ‘ Bills receivable, ” to offset the credit entry. Grant had several contracts with the city of Detroit at this time, materials for which he purchased from the plaintiff. An action was brought on these bonds, which resulted in a directed verdict against Grant for $1,593.77, without costs, and against all defendants for $682.99, with costs. The plaintiff brings error.

The contest arises over the item of $1,500 and interest, for which the court held that the sureties were not liable; the judge being of the opinion that they had been discharged from their obligation by the acceptance of plaintiff’s notes mentioned. It is contended, first, that these notes ''’did not extend the time beyond the period of credit given defendant Grant, and therefore that the sureties are not discharged; second, that there was no consideration for an extension of time, as there was no agreement by Grant not to pay before the maturity of the note, nor by plaintiff not to sue the original claim.

We think these positions untenable. Defendants say in regard to the former that these goods were bought on 30 days’ time, and that the 30 days did not begin to run until the last item of the account was purchased. We think this is not so. The arrangement was to sell materials for various jobs on 30 days’ time. That meant 30 days’ time from date of invoice. If we may not take judicial notice of so uniform a usage of trade, it is the only reasonable construction to place on the language, in view of the circumstances.

As to the latter contention, the case differs from one where there is a mere agreement to forbear suit for a given time, to give the debtor an opportunity to pay, as in the recent case of Ferris v. Johnson, 136 Mich. 227. Here the debtor gave his promissory note, whereby he promised to pay at a given time a debt that he had previously incurred. Under ordinary rules, he had no right to pay it before it was due, if it was a note based upon a consideration, and of that there is no doubt. An existing debt is a good consideration for a promise to pay, and it would be a surprise to business circles, were we to hold that a note given for an existing debt, whether due or not, was not based on an adequate consideration; and it would be equally a surprise were we to hold that, notwithstanding the note, the debtor might pay, or the creditor enforce payment, at any time. The inference to be drawn from the circumstances is that Grant was largely in debt on February 7th to the plaintiff. It was not convenient for him to pay money, and he was asked to give bankable paper, which he did, and it was negotiated. There can be no doubt that both parties expected and understood that the amount represented by that note should not be paid or collected sooner than the time fixed in the note, and contracted to that end, as the terms of the note itself implied. We are aware that there is a want of harmony in the authorities upon this point, but we think the weight of authority sustains our conclusion. It is probable that the amount for which the note was given was due on February 7th, but, if not due at that time, as plaintiff’s counsel argue, an additional consideration for the extension was the promise to pay interest before the expiration of 30 days. The case is fairly within the rule of Smith v. Shelden, 35 Mich. 46, and Sweet v. Newberry, 92 Mich. 521. See Shayler v. Giddins, 122 Mich. 660, and Ferris v. Johnson, 136 Mich. 227.

We find no error, and the judgment is affirmed.

The other Justices concurred.


author: Grant, J.

text:
    MULVEY v. STEVENSON.
    Appeal and Error—'Verdict—Conclusiveness.
    A verdict and judgment founded on sufficient evidence will not be set aside.
    Error to Wayne; Rohnert, J.
    Submitted October 6, 1904.
    (Docket No. 25.)
    Decided October 18, 1904.
    Case by Josephine Mulvey against James Stevenson for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Lodge, Trevor & Brown, for appellant.

      James 'McNamara and Frank C. Cook, for appellee.
   Grant, J.

Plaintiff, while walking along one of the streets of the city of Detroit, on her way to work, was bitten by a dog. She sued the defendant as owner of the dog, and recovered damages.

The sole allegation of error is that the court should have directed a verdict for the defendant, on the ground that there was no evidence that the defendant was the owner of the dog. A review of the testimony would afford no valuable precedent as a guide in future cases. We are unable to agree with the learned counsel for the appellant. We think there was evidence that the defendant at the time was the owner of the dog which bit and injured plaintiff.

It is also urged that the court should have set the verdict aside on the ground that it is against the weight of the evidence. We agree with the circuit judge that there was sufficient evidence upon which to base the verdict, and do not think it is a case which justifies the interference of this court in overruling the judgment of the court below.

Judgment affirmed.

The other Justices concurred.


author: Carpenter, J.

text:
    LINSELL v. LINSELL.

    1. Action on Account—Witness—Credibility—Instruction.
    Where, in an action to recover an alleged balance due, defendant alone testifies to payment, and plaintiff testifies as to statements of defendant that .he did not want anything for the rent of certain premises, which rent he claims constituted the payment, the testimony of plaintiff justifies the jury in discrediting defendant’s testimony, and a charge compelling the jury to credit defendant’s testimony is erroneous.
    2. Variance — Amendment — Waiver — Estoppel to Allege Error.
    Where an objection was made when the trial commenced that there was a variance between plaintiff’s pleadings and proof, in that she described her cause of action as arising out of certain notes, whereas her evidence was on the theory of an open account, and to meet the objection plaintiff was permitted to amend her bill of particulars, after which the objection was not urged, and the verdict was in defendant’s favor, he is estopped, on error, to assert that the assumption that there was no variance, on which the trial proceeded, was unfounded.
    Error to Wayne; Mandell, J.
    Submitted October 7, 1904.
    (Docket No. 45.)
    Decided October 18, 1904.
    Assumpsit by Martha Linsell against Henry Linsell. There was judgment for plaintiff for less than the amount claimed, and plaintiff brings error.
    Keversed.

      Frank C. Moriarty and Lehmann & Riggs, for appellant.

      William E. Henze, for appellee.

      Rehearing denied December 7, 1904.

   Carpenter, J.

May 25, 1901,- an interest of plaintiff’s husband in the estate of his deceased mother was conveyed to defendant, his brother, for the agreed consideration of $1,000. Part of this consideration was paid in cash. The cause of action for the balance was assigned to plaintiff by her husband, who brought this suit to recover the same. Defendant testified that this balance was paid by the settlement of two accounts—the principal one of which was for rent—owed to him by his brother. The trial court, by his charge, in effect compelled the jury to credit this testimony. Was this error ?

According to the testimony of defendant, the arrangement whereby the unsettled accounts were to be paid by the transfer of the interest in the estate was made several days before the transfer was actually made, at an interview when no one but himself and his brother were present. His claim of payment, therefore, depends entirely upon the credit to be given to his unsupported testimony. Plaintiff testifies that when the deed was made, she said to the defendant, ‘ ‘ that my husband should have the first show to take $500, and if he didn’t do right with it, I should come in on the other $500,” and that the defendant “ didn’t say anything.” She also testifies that though she and her husband had occupied defendant’s property, the latter said, shortly before the conveyance in question was made, that “he didn’t want anything for the rent.” It seems to us clear that this testimony of plaintiff justified the jury in discrediting defendant’s testimony, and that therefore the charge under consideration was erroneous. See Michigan Pipe Co. v. Insurance Co., 92 Mich. 488. See, also, Goppelt v. Burgess, 132 Mich. 28.

The suggestion is made in appellee’s brief that plaintiff’s pleadings describe her cause of action as arising out of certain note or notes, and that she cannot therefore recover on the open account which her evidenco tends to establish. This objection of variance was made when the trial commenced in the lower court. To meet it, plaintiff’s counsel was permitted to, and did, amend his bill of particulars. Afterwards the objection was not urged. We are bound, therefore, to say that the trial proceeded upon the assumption that there was no variance. Defendant cannot now assert that this assumption, upon which he obtained a verdict, was unfounded. See Wineman v. Fisher, 135 Mich. 604.

The judgment of the circuit court is reversed, and a new trial granted.

The other Justices concurred.


text:
    WILTON v. CITY OF DETROIT.
    1. Municipal Corporations —Notice of Claim for Injury — Waiver.
    The notice of claim for negligent injury which the charter of Detroit (Act No. 463, Local Acts 1895, § 46} provides must be served upon the corporation counsel is not waived by consideration by the common council of claimant’s claim though the assistant corporation counsel was present and made no objection.
    3. Same—Actions—Limitations—Service on Wrong Officer.
    Filing and service of a declaration as commencement of suit is not sufficient under the charter of Detroit (Act No. 463, Local Acts 1895, § 46), where the service is made upon the wrong officer and proper service is not had until the year has passed; 3 Comp. Laws, § 9985. The saving statute (3 Comp. Laws, § 9738) has no application to cases barred by the law of 1895.
    Error to Wayne; Rohnert, J.
    Submitted October 7, 1904.
    (Docket No. 41.)
    Decided October 18, 1904.
    Case by Mary Wilton against the city of Detroit for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      William Look (George Gartner, of counsel), for appellant.

      P. J. M. Hally (Timothy E. Tarsney, of counsel), for appellee.
   Hooker, J.

The plaintiff claims to have been injured through defendant’s negligence on July 6, 1901. On the 23d day of the same month she presented her petition for compensation to the common council, but she never served the notice upon the city counselor, required by Act No. 463, Local Acts 1895, § 46:

“ No action shall be brought against said city, nor any of its boards, commissions, or officers, for any negligent injury unless it be commenced within one year from the time when the injury was received, nor unless notice shall be given in writing within three months from the time of such injury to the head of the law department or to his chief assistant, of the time, place, and cause of such injury and of the nature thereof.”

The petition was referred to the committee on claims and accounts, with whom it slumbered until October 29, 1901, when the committee listened to the testimony of some witnesses produced by the plaintiff. The assistant corporation counsel was present and made no objection to the proceeding. On November 19th the committee reported adversely on the claim, and it was denied.

On July 2, 1902, the plaintiff began an action upon this claim, filing declaration as the commencement of suit. Service was had upon the city comptroller, and this was set aside by the court. Some days later plaintiff caused another copy to be served properly.

It is now claimed that the defendant must prevail, under the plea of the statute of limitations hereinbefore quoted. We have held that the council might waive the statutory notice upon the city counselor, before the expiration of the time for service thereof, but expressed doubt of his being able to do so. In this case we find nothing to justify us in declaring the notice waived.'

Again the case is barred by the statute of limitations applicable to this class of cases in Detroit. See Act No. 463, Local Acts 1895. The statute (3 Comp. Laws, § 9985) clearly points out what shall constitute commencement of suit by declaration, and it includes service of a copy personally upon the defendant. It is conceded that the first service was a nullity, because not upon the proper officer. The second was too late.

The case cannot be saved by 3 Comp. Laws, § 9738, as that section has no application to cases barred by the law of 1895 heretofore cited.

We are constrained to affirm the judgment.

The other Justices concurred.


text:
    DOUGLASS v. LONGCOR.
    Deeds —Suit to Annul —Undue Ineluence — Delivery — Evidence—Appeal.
    Where, on a bill to annul certain deeds on the ground of undue influence, failure to understand them, and lack of delivery, complainant’s testimony is freer from bitterness than that of defendant’s brothers and sisters, and the circumstances shown lead to its credit, a decree for complainant will be affirmed, though defendant and two other witnesses testify to delivery of the deeds, and complainant fails to show ignorance of their purport.
    Appeal from Van Burén; Carr, J.
    Submitted October 7, 1904.
    (Docket No. 46.)
    Decided October 18, 1904.
    Bill by Celina L. Douglass against Mary E. Longcor to annul certain deeds. From a decree for complainant, defendant appeals.
    Affirmed.

      Barnard & Lewis, for complainant.

      David Anderson, for defendant.
   Hooker, J.

This complainant, a woman past 87 years of age, filed the bill in this cause to annul certain deeds, which purport to convey from herself to the defendant lands which she received from her husband, upon which they lived many years. It is claimed that she was induced to make them by undue influence, and without understanding them, and that she never delivered them, and that they were taken and put on record without her consent. From a decree in favor of the complainant, the defendant has appealed.

The testimony is conflicting, and in such cases absolute certainty of justice is out of the question. The testimony of the complainant seems more free from bitterness than that of defendant’s brothers and sisters, and there are circumstances shown which lead us to credit it, though denied by the defendant and two other witnesses in relation to the circumstance of delivery. We therefore concur in the view taken by the circuit judge to the extent of holding that the deeds were obtained through undue influence, and were never delivered. We cannot be so sure that the complainant was ignorant of their purport.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    WARE v. HALL.
    Homestead—Vacant Lot—Occupancy—Intention.
    A widow, having only married children, and no means with which to build a house, or prospect of any, cannot claim homestead rights in a vacant lot which she has owned for years, and occupied only by making garden thereon.
    Appeal from Berrien; Coolidge, J.
    Submitted September 13, 1904.
    (Docket No. 185.)
    Decided October 26, 1904.
    Bill by Mary Jane Ware against Charles W. Hall to set aside an execution levy. From a decree for complainant, defendant appeals.
    Reversed.
    The object of this bill is to cancel an execution levy made upon a vacant lot in Benton Harbor, which complainant claims as a homestead. The sole question presented by the record is whether she had taken sufficient steps to establish and maintain this lot as a homestead. She formerly lived in Kalamazoo, where she owned a lot and a small house, in which we may infer (though it does not clearly appear upon the record) that she lived. In September, 1899, she sold that house and lot for $375, out of which she paid a mortgage upon them for $250. She then moved to Benton Harbor, where some of her children were living. While living there with her son she purchased the lot in question, for which she paid $150. She is a widow having four children, all of whom are married. She testified that they contributed a little towards her support. Subsequently she rented a house of the defendant, failed to pay the rent, and he brought suit therefor, obtained a judgment, and levied upon this lot in June, 1903. The lot was vacant when purchased, and was never occupied by her in any other manner or for any other purpose than to raise some vegetables upon it during the summer. It does not appear that it was fenced. Her son set out two small maple trees for her in front of the lot, but not at her request. She afterwards paid him 40 cents apiece for them. There were also two or three peach trees upon the lot. She had no money with which to build a house or even to pay her rent. She never made any plans for building, and testified that the reason was that she was too poor.

      John J. Sterling, for complainant.

      Harris S. Whitney, for defendant.
   Grant, J.

{after stating the facts). Where one buys a piece of land with the intention of soon thereafter erecting a building thereon for the sole purpose of a homestead, there is reason in holding that such land comes within the protection of the Constitution as a homestead, and that he will have a reasonable time in which to erect the building. That is not this case. For three years and a half complainant had owned this lot. It could not exist indefinitely as a homestead in her intention alone. Something must be done within a reasonable time towards making it such a homestead. There was no such occupancy as, under any of the decisions cited, has been held to constitute a homestead. From her own testimony there was no immediate or remote prospect that she could erect a house. She testified that her son, who was a carpenter, said that some time when he got able he would erect a house on the lot and give it to her. That was the only prospect she had. The facts are entirely different in the cases relied upon. Reske v. Reske, 51 Mich. 541; Deville v. Widoe, 64 Mich. 593; Mills v. Hobbs, 76 Mich. 126; Corey v. Waldo, 126 Mich. 706.

Corey v. Waldo comes nearest to sustaining the plaintiff’s contention. But in that case the defendant and his wife were “proceeding as rapidly as circumstances would permit” to convert a homestead, which had been condemned by the city of Detroit for the purpose of opening a street, into another homestead composed of the lot which had been levied upon. Mr. Waldo was able to erect buildings thereon as a homestead, and we held that the reasonable time for him to carry that intention into effect by the occupancy which the Constitution and law require had not expired. Here the naked question is, Can one utterly insolvent, without any ability to earn money sufficient even to support herself, without any prospect of getting money to erect a building thereon, hold land indefinitely as a homestead ? To so hold would be in direct opposition to the language of the Constitution and the law, which require ownership and occupancy combined. In all the cases cited, except possibly Corey v. Waldo, there were some acts of occupancy. Intention without occupancy cannot create a homestead, for the Constitution requires occupancy as well as intention. There must be some acts which, coupled with the intention, constitute the necessary occupancy.

Decree reversed, and bill dismissed.

The other Justices concurred.


text:
    STODDARD v. SAGINAW BUILDING & LOAN ASS’N.
    1. Building and Loan Associations—Loans—Competitive Bidding—Evidence—Suppioienoy.
    In a suit against a building and loan association for an accounting and a discharge of mortgages executed by complainant, which had been foreclosed, and to set aside sales made thereunder, on the ground that the mortgages were usurious, evidence examined, and held to show that there was no competitive bidding at the time the loans were made, as required by law.

      2. Same — Inducements to Borrowers — Advertisements — Fraud.
    Where there was evidence that the secretary of a building association made persistent efforts to induce an owner of land to borrow money of the association on the ground that he could borrow the money at less than the rate of interest he was then paying, and furnished him with advertising matter stating that a borrower could pay his loan by paying only 56 per cent, of the amount borrowed, and complainant testified that the secretary stated that it would be economy to borrow from the association, it cannot be urged that this was mere opinion, and not a representation by which the borrower should not have been misled.
    Appeal from Saginaw; Snow, J.
    Submitted October 4, 1904.
    (Docket No. 3.)
    Decided October 26, 1904.
    Bill by Walter S. Stoddard and Jane Stoddard against the Saginaw Building & Loan Association for an accounting and the cancellation and discharge of certain mortgages. From a decree for complainants, defendant appeals.
    Affirmed.

      Wm. IS. Crane and George C. Ryan, for complainants.

      Nathan S. Wood, for defendant.
   Hooker, J.

Defendant’s brief states that on November 1, 1890, Walter Stoddard took 13 shares of its stock, and that on November 10, 1890, he borrowed money on 10 of these shares,. bidding 26} per cent, premium for the loan, and that on November 24,1890, he bid 27} per cent, for an additional loan; that on February 13, 1893, he made another loan, upon four other shares of stock, bidding 27} per cent. It states further that he paid upon these loans a total of $1,528.17, paying regularly until November 21, 1900, when default in payments began. On July 30, 1901, the stock was canceled, and credited, and foreclosure of the mortgages given by the complainants to secure said loans was ordered by defendant’s board of directors. Defendant claims that it had paid taxes upon the premises for five years, for which it had a lien. It thereupon proceeded to foreclose by advertisement, and bid in the parcels upon February 8 and 15, 1902, respectively.

A short time after the foreclosure sales the complainants filed the bill in this case, claiming that they were induced to make the mortgages by the fraudulent representations of defendant’s secretary, that the contract was usurious, and that they had paid more than was by law due, and prayed for an accounting and a surrender and discharge of the mortgages. The defendant answered, and a hearing was had, proofs being taken in open court. The record shows that Walter Stoddard testified that he resided in Saginaw, and bought a home of one Burrows, giving him a mortgage for a portion of the purchase price, drawing interest. He subsequently received a letter from Mr. Fowler, defendant’s secretary, stating that he had ascertained that there was a mortgage against the home of the witness on a contract, and that defendant would help him out by letting him have money on a better basis than that upon which he was then getting it. The witness received many such letters before, paying any attention to them. He finally saw Fowler, and, according to his testimony, Fowler represented to him that by taking stock with defendant, according to their plan, the loan would not cost more than 7 per cent, interest, and the stock would mature in eight years or less. Fowler sent him the pamphlet issued by the defendant, which purports to explain the method of business, and contains an illustration of results by showing an imaginary loan to John Brown. Fowler had several interviews, and complainant Walter Stoddard finally concluded to place the loan with defendant. He was instructed to attend a meeting, and did so He found a number of men about a table, probably directors. Fowler was there, and took him outside, and told him that bids less than 26£ per cent, would not be accepted ; also that high bids were advantageous to the borrower, because they lessened the amount to be paid on the stock. Fowler afterwards arose in the meeting, and said that the association had some money to loan, and asked for bids. Stoddard bid 26£ per cent., and no one else bid, so it was struck off to him. He testified that on the other occasions no form of bidding was had, but he was told that he could have it the same as before.

This state of facts was not admitted. On the contrary, defendant sought to prove that the secretary did not represent that the stock would be paid up in eight years, or that the cost of the loan would be less than 7 per cent., and claims that, if such representations were made, they were mere matters of opinion. They also sought to show by the deposition of Fowler that he did not tell the complainant that bids less than 26J per cent, would not be accepted, and that the loans were sold upon competitive bidding. Several directors testified upon this subject, and the records of the meetings in question were read in evidence. The learned circuit judge who heard the cause found that the allegations of the bill were sustained, and that the complainants were entitled to the relief prayed. Upon the accounting he found that the mortgages were fully paid upon the'commencement of the foreclosures, including interest at 7 per cent., computed semi-annually, but that there was equitably due to the defendant the sum of $314.71 for taxes and interest. The sales were canceled, and complainants required to pay that sum, failing in which the premises were to be sold. Costs were given to the complainants. The defendant has appealed.

The circuit judge evidently gave credence to the testimony of Walter Stoddard. The testimony is not without corroboration as to the practice of the defendant with relation to bids. Section 7 of the by-laws in force at the time and for some time afterwards provided that the “ board of directors shall have power to fix the minimum rate of premium at which money on hand shall he sold,” and Fowler testified that he told Stoddard that 25 per cent, was considered a fair premium among associations. One or more of the directors testified that it was never sold at less than 25 per cent., and at the time of Stoddard’s transactions there was a rule that 25 per cent, should be the minimum premium. Several witnesses testified to being present at the meetings when complainant bid for his loans, and gave it as their opinion that there was competitive bidding, but upon cross-examination it was made to appear that they had no recollection, and based their opinion solely upon the minutes of the meetings produced on the trial. The minutes of the meeting of November 10th show two loans at 26£ per. cent, and two at 27 per cent. They state:

“ Money offered for sale and sold to Lydia Goodby on 21 shares at 26-J per cent., Walter S. Stoddard on 10 shares at 26^ per cent., Henry A. Hare on 7 shares at 27 per cent., Lyman J. Perkins on 1 share at 27 per cent.

“Com. on L. J. Perkins loan reported approving loan.

“Mr. Vincent: I move that loan be approved subject to favorable report of attorney.

“Mr.Moye: I support.

“Motion carried.

“Com. on Lydia Goodby loan reported approving loan.

“Mr. Vincent: I move that the Lydia Goodby loan ' be approved subject to favorable report of att’y, and that the order be drawn.for proper amounts.

“Mr. Her rig: I support.

“Motion carried.

“Com. on Henry A. Hare loan reported approving loan.

Mr. Herrig: I move that the Henry A. Hare loan be approved subject to favorable report of att’y.

“Mr. Moye: I support.

“ Motion carried.

“Com. on Walter S. Stoddard loan reported approving loan.

“Mr. Vincent: I move that W. S. Stoddard loan be approved subject to approval of att’y, and that the orders be drawn for proper amounts.

“ Mr. Moye: I support.

“ Motion carried. * * * ”

There is nothing in this to show that any competitive bid was had on the first two loans, or that all of the parties bidding did not understand that 25 per cent, was a minimum, or that they had not all been told that 26-J- per cent, was the minimum that would be accepted, as Stoddard says that he was told.

Another point has prominence in this cause. The bill alleges—and there is proof to support it—that the defendant’s secretary made a persistent effort to induce Mr. Stoddard to borrow money of his association. If Stoddard was truthful, it was accomplished by leading him to believe that he could borrow money at less cost to himself than the rate he was then paying, viz., 7 per cent., and apparently it was not until he was so convinced that he consented to join the association. That this would depend upon the time required to mature the stock is apparent, hence it was necessary that complainant be made to think that it could and would be brought about within eight years. We understand that the claim that it would prob- ■ ably mature in that time is not disputed, and the advertising matter used and furnished the complainant states that:

“According to the past experience of similar associations, this value will be reached in between eight and nine years, although during that time but about $56 per share would have been paid in, the remaining $44 having accrued to the stock in profits. When the par value is reached it is paid to the shareholder in cash, when no money has been borrowed. If the person has borrowed from the association during the continuance of the payments, such amount is deducted from the value of the shares.”

It is a rather startling proposition that a borrower could pay his loan by paying only 56 per cent, of the amount borrowed. Doubtless it would be contended that this was neither meant nor said, but the statements'made would not be unlikely to mislead many of those for whose benefit these associations are ostensibly created, viz., the industrial classes who desire homes. However that may be as to the borrowing class, this statement does show that by past experience a lender can realize a very large rate of interest in eight years. It is manifest that this must be paid by the borrowing class, and no one is more likely to understand this than those who conduct such associations.

The advertisement quoted from does not make a fair showing in its illustration of John Brown’s imaginary loan. If it did it would not state that $331.60 shows the cost of a loan, as compared with $130 at 7 per cent., in view of the fact that dues and interest were payable weekly.

One cannot read the advertisement without understanding that the concern which issued it sought to impress possible patrons with the belief that it would be economy for them to borrow from the defendant. The complainant testified that the secretary so represented. Defendant’s counsel urge that this was a mere opinion, not a promise nor a representation, and that complainant should not have been misled, because of the printed matter furnished, already referred to.

If the parties met on equal terms, and there was no deceit upon the secretary’s part, that contention might be correct; but, if this advertisement was intended and cunningly devised to create an impression that the managers of the association knew to be incorrect or doubted, it might be a fraud, and the perpetrator could not shelter himself behind the claim that it was an opinion. Taken in connection with the alleged statements of the secretary and the circumstances of the case, a court might reasonably find that the conduct was deceitful and fraudulent. The law gives special favors to such associations as these. It permits them to charge high rates of interest and to escape the payment of taxes—privileges denied to banks and other similar institutions. This is upon the theory stated, viz., that the poorer classes may be able to obtain homes. Experience has proved that such associations have not been free from- the baleful influence of the desire for money-getting, and some—including this association—have eliminated fair competition, and required minimum bonuses of a high percentage, and, as we have seen in this case, resorted to advertising, which, while well designed to appeal to the cupidity of its patrons, is also liable to inspire undue expectations and confidence. This should not be countenanced. We are of the opinion that the finding of the circuit judge was warranted by the proofs. Myers v. Building Ass’n, 117 Mich. 392; National Mut. Bldg. & Loan Ass’n v. Burch, 124 Mich. 62.

The decree is affirmed, with costs.

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


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    MICHIGAN BUGGY CO. v. SMALLEGAN.
    Commencement op Suit — Declaration and Rule to Plead — Filing—Indorsement.
    Where suit is commenced by filing declaration and service of a copy thereof, indorsed with a copy of the rule to plead, as prescribed by the statute (3 Comp. Laws, § 9985), it is not necessary that the copy served bear an indorsement of filing by the clerk.
    Case made from Antrim; Wayne, J.
    Submitted October 4,1904.
    (Docket No. 212.)
    Decided October 26, 1904.

      Assumpsit by the Michigan Buggy Company against John Smallegan and John H. Smith, copartners as Smallegan & Smith, for goods sold and delivered. There was judgment for plaintiff, and defendants appeal.
    Affirmed.

      Fitch R. Williams, for appellants.

      Leavitt & Guile, for appellee.
   Hooker, J.

This action was begun by filing a declaration, a copy of which was served. Afterwards an amended declaration was filed to correct an unimportant clerical error. Both declarations were served by delivery of copies, but neither copy showed an indorsement of the filing by the clerk, which in each instance appeared upon the original. The defendants did not appear, and their defaults were entered for not appearing and pleading, and judgment followed after defendants had appeared specially and moved to set aside the proceedings for want of jurisdiction, which motion was denied; and the defendants present the cause to us by case made.

It is claimed that the failure to serve a declaration properly is a jurisdictional question, and it is insisted that to omit the indorsements of filing from the copy served is not a service in compliance with law. The statute (3 Comp. Laws, § 9985) provides for the commencement of suit by filing declaration, entering a rule to plead, and serving a copy of the declaration and a copy of the rule. It is silent as to the indorsement of filing. We think that the service was proper.

Judgment affirmed.

The other Justices concurred.


author: Per Curiam.

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    THOMPSON v. BAY CIRCUIT JUDGE.
    1. Discontinuance—Stipulation—Setting Aside—Mandamus.
    An order striking a stipulation to discontinue without costs from the files, on the ground that it was obtained by deception, unless within 30 days plaintiff pays the costs therein or discontinues a subsequent suit for the same cause of action, does not involve the question whether the settlement of the cause of action was fraudulent, but merely requires plaintiff to proceed with his cause or pay the costs, and mandamus will not be granted to vacate it.
    2. Same—Fraud.
    The circuit court on motion and proper showing may set aside a discontinuance fraudulently obtained.
    Mandamus by Martha J. Thompson to compel Theodore F. Shepard, circuit judge of Bay county, to set aside an order striking a stipulation of discontinuance from the files.
    Submitted October 4, 1904.
    (Calendar No. 20,743.)
    Writ denied October 26, 1904.
    Petitioner brought suit in the circuit court of Bay county against the city of West Bay City for negligent personal injury, and had judgment, which was reversed on error in this court. Thompson v. City of West Bay City, 137 Mich. 94. The attorneys of the parties afterward stipulated to discontinue the cause without costs to either party, and petitioner subsequently brought another suit for the same injury against the city and another. Thereupon the city obtained an order striking the stipulation of discontinuance from the files unless petitioner should pay the accrued costs within 30 days or discontinue the second suit as to the city, on the grounds that the stipulation was obtained by deception, and that the understanding of the city’s attorney was that it was made for the purpose of terminating the litigation. Petitioner applies for mandamus to compel the circuit judge to set aside the order striking off the discontinuance, on the ground that the question of fraud presented could not be tried on motion and affidavits.

      Fred W. De Foe, for relator.

      8. Gr. Houghton, for respondent.
   Per Curiam.

The writ will be denied. The case is distinguishable from Voigt Brewery Co. v. Wayne Circuit Judge, 103 Mich. 190. In that case the effect of. the action of the circuit judge was to adjudge that a settlement of a cause of action was fraudulent. It was held that such question could not be thus tried. Here there is no such question. The plaintiff is merely required to proceed with her cause or pay the costs. If the discontinuance in such a case was obtained fraudulently, we think the court might set the same aside on motion and proper showing.


author: Moore, C. J.

text:
    SANDS & MAXWELL LUMBER CO. v. GAY.
    Land Contract—Foreclosure—Jurisdiction of Chancery.
    A suit in chancery to foreclose a land contract, on which less than $100 remains unpaid, involves a controversy concerning property within the statute (1 Comp. Laws, § 435), providing that circuit courts in chancery shall dismiss every suit concerning property, with certain exceptions, where the matter in dispute shall not exceed $100.
    Appeal from Oceana; Russell, J.
    Submitted October 5,1904.
    (Docket No. 7.)
    Decided October 26, 1904.
    Bill by the Sands & Maxwell Lumber Company against James D. Gay and others to foreclose a land contract. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Hartwick & Skeels, for complainant.

      Wallace Foote and M. H. Brooks, for defendants.
   Moore, C. J.

This is a bill to foreclose a land contract made between the complainant and James D. Gay, upon which complainant claimed there was $31.80 unpaid. It was the claim of defendants that nothing was unpaid on the contract. After the testimony was all in the solicitors .for defendants moved to dismiss the bill of complaint, because the amount unpaid on the contract was less than $100, and for that reason the court did not have jurisdiction. The judge granted the motion, and the case was brought here by appeal.

The question involves a construction of section 435, 1 Comp. Laws, which reads:

“ Such courts shall dismiss every suit concerning property, excepting suits between copartners, and suits for the enforcement of mechanics’ liens, suits for the foreclosure of mechanics’ liens, and suits for the foreclosure of mortgages, where the matter in dispute shall not exceed one hundred dollars, with costs to the defendant.”

It is claimed by complainant that this is a suit for the foreclosure of a mortgage. It is true, as contended by the solicitors for the complainant, that this court has recognized that a grantor in a land contract may foreclose his contract upon the chancery side of the court; but it does not follow that, when less than $100 is involved, he may do so. The average man would not understand that, when one spoke of the foreclosure of a mortgage, the speaker meant the foreclosure of a land contract. This is certainly a suit concerning property in which the amount involved is less than $100, and it became the duty of the court to dismiss it, unless it is within the exceptions mentioned in the statute. We think the circuit judge was right in holding it was not within the exceptions.

The decree is affirmed.

The other Justices concurred.


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    POPP v. CONNERY.
    Married Women —Building Contracts —Agency of Husband.
    Where buildings are erected on the land of a married woman, with her knowledge and consent, out of materials selected by her, she is liable for the value of the materials furnished, though the business was conducted mainly by her husband, and the furnisher supposed he was furnishing her husband and that the title to the land was in him, and no misrepresentations were made.
    Error to Saginaw; Beach, J.
    Submitted October 5, 1904.
    (Docket No. 11.)
    Decided October 26, 1904.
    Assumpsit by John Popp and Joseph E. Wolf, copartners as Popp & Wolf, against Christina Connery for goods sold and delivered. There was judgment for defendant on a verdict directed by the court, and plaintiffs bring error.
    Reversed.
    The defendant was erecting some houses on some lots owned by her. The contracts for their construction were made mainly by her husband in his own name. The business was mainly conducted by him, though she frequently gave instructions. The circumstances surrounding the construction of the buildings are fully stated in Brand v. Connery, 132 Mich. 88. Plaintiffs sold a bill of hardware for use in the construction of the houses. Her husband made the contract with plaintiffs. The goods were charged to him in the belief (though the husband made no representation of ownership) that the land was owned by him. By direction of the husband plaintiffs sent samples to the home of Mr. and Mrs. Connery for her selection. She selected them, and the price was agreed upon. The husband became insolvent and unable to pay. Plaintiffs, upon learning that the title was in defendant, then charged the goods to her, and, upon her refusal to pay, brought this suit. The court directed a verdict for the defendant.

      Eugene Wilber, for appellants.

      James H. Davitt, for appellee.
   Grant, J.

(after stating the facts). The sole basis for recovery is stated by plaintiffs’ counsel to be the fact ‘£ that the defendant owned the land, that she knew the buildings were to be erected, that she wanted them built, that she selected the materials, that they were taken to her home expressly that she might make the selections, that she agreed upon the prices, that she gave directions to the architect and builders, and that by the erection of these dwellings the value of her land was increased from $1,000 to $10,000.” Plaintiffs rely upon Frolich v. Carroll, 127 Mich. 561, and the authorities there cited. Defendant’s counsel rely upon Holmes v. Bronson, 43 Mich. 562, Morrison v. Berry, 42 Mich. 389, Hillier v. Eldred, 91 Mich. 54, and other similar cases.

In Holmes v. Bronson a furnace was sold to the husband and placed in his wife’s house. The husband gave his note for the purchase price, paid a part of the principal and interest, and obtained several renewals. After the last renewal, learning that the title to the land was in the wife, the plaintiffs returned the husband’s note and sued the wife.

In Morrison v. Berry the husband bought a gas machine, which was attached to the house owned by the wife, on representation that he owned the house. Upon learning that the representation was false, the vendors tendered back the note which the husband had given, demanded possession of the machine, and, upon refusal, brought an action of trover. The majority of the court held that the action could not be maintained, for the reason that there was no evidence to show that Mrs. Morrison had any knowledge of even the existence of a contract, or that she did any act whatever to afford any ground of action against her. Justice Cooley dissented.

In Hillier v. Eldred a son bought a frame of a barn to put up on his mother’s homestead, intending to make her a present of it.

In Frolich v. Carroll the contract to erect houses upon the wife’s land was made by her husband. The contractor testified that he signed the contract upon the representation that the husband owned the premises. The chief difference between that case and this lies in the fact that Mr. Connery made no express representation as to the title. It was claimed there, as here, that there was not a scintilla of evidence to show any contract with the wife. The court found that the contract was in fact made on behalf of the wife, and in sustaining the conclusion of the court below we said:

“Margaret Carroll owned the land, she knew the buildings were to be erected thereon, she wanted them built, she used funds of her own and. borrowed more to pay upon the contract, she drew her own personal checks to the complainant and other contractors, and she still owns the premises. She thereby recognized the contract as hers. The case is like any other case of contract made by an agent where the principal is undisclosed”—citing authorities.

It is clear from this record that the husband was making no presents to his wife. He was attending to her business in the same manner as any husband under like circumstances would attend to his wife’s business. She knew he was doing this for her. While she did not herself make the application for the articles furnished by plaintiffs, she was present when the contract was made. She knew it was being done for her benefit, and to increase her property. Neither she nor her husband were produced as witnesses. Her husband was not purchasing a single article, like a gas machine or a furnace, but was purchasing materials to be used in the construction of her houses, and she knew that he was doing so. We think the case falls within the principle of Frolich v. Carroll, instead of the other cases above cited.

Judgment reversed, and new trial ordered.

The other Justices concurred.


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    MEESKE v. MILLER.
    1. Landlord and Tenant — Summary Proceedings — Right to Dispute Landlord’s Title.
    In summary proceedings for the possession of leased premises, it appeared that after foreclosure of plaintiff’s mortgage, defendant, the mortgagor, remained upon the land under an agreement to purchase and to pay rent, and that prior thereto a third person had bought a tax title, and defendant had also been paying rent to him. SisMthat the title to land was not in question so as to require dismissal of the proceedings, as defendant could not thus dispute his landlord’s title.
    2. Certiorari—Findings or Fact—Conolusiveness.
    On certiorari to a circuit court commissioner to review summary proceedings, his findings of fact on conflicting evidence are conclusive.
    Error to Muskegon; Russell, J.
    Submitted October 5, 1904.
    (Docket No. 9.)
    Decided October 26, 1904.
    Summary proceedings by Otto Gr. Meeske against Frederick W. Miller before a circuit court commissioner for the possession of certain leased premises. Plaintiff had judgment of ouster before the commissioner, which was reversed by the circuit court on certiorari, and plaintiff brings error.
    Reversed, and judgment entered for plaintiff.

      Stephen H. Clink, for appellant.

      W. E. Hoyt (B. J. Macdonald, of counsel), for appellee.
   Hooker, J.

The complainant recovered a judgment of eviction before a circuit court commissioner, upon a claim that the premises were wrongfully withheld from him by Miller, his tenant. This judgment was reversed in the circuit court on certiorari, and is before us on writ of error, issued at the instance of the complainant.

The return to the, writ shows that Miller, being in possession as owner of the original title to the premises, mortgaged them to Meeske, the complainant. Subsequently the land was sold for delinquent taxes to one Foss, who took a deed for the same from the auditor general. Foss was a relative of Miller. Meeske foreclosed his mortgage in chancery, taking a commissioner’s deed. A demand was then made for possession, after which an arrangement of some kind was made by which the defendant continued in possession. Complainant claimed that Miller agreed to purchase the land for the amount due, and meantime to pay $5 a month rent. Miller admitted the arrangement, and that he agreed to pay the debt for which the mortgage was foreclosed, but denied that he promised to pay rent. The proceeding was based upon a claim that he was complainant’s tenant, and of nonpayment of rent.

Upon the trial befoi'e the commissioner, complainant first learned of the tax title by the production of the deed, and the testimony of Foss and the defendant that for six years the latter had been paying $60 a year rent to the former. Upon certiorari the circuit judge was of the opinion that title to land was brought in question, and that the commissioner should therefore have dismissed the proceeding, under the rule laid down in Butler v. Bertrand, 97 Mich. 59, and Jenkinson v. Winans, 109 Mich. 525.

It is shown beyond controversy that, at the time of the arrangement between Miller and Meeske, Foss had all of the title that he ever had, and that Miller knew of it. He saw fit at that time to recognize the title of Meeske, and by his agreement he became his tenant, either at an agreed rent, or at will or sufferance. The commissioner found that he agreed to pay rent, and that finding is conclusive of the question, there being evidence to that effect. No change in the title of complainant has occurred since that agreementwas made, as was the claim in the case of Jenkinson v. Winans, and the defendant was therefore not in a position to dispute that title. It is settled by those cases that when the proof shows that the title to the land is in controversy the commissioner should dismiss summary proceedings, for the reason that such is not a proper proceeding in which to try the title to land. In this case the title to land was not shown to come in question, for the reason that the defendant was not in a position to dispute his landlord’s title, nothing having occurred after their arrangement to change their relations or the condition of the title. The evidence conclusively showed that defendant was in possession under the agreement with the complainant, whether he agreed to pay rent or not, as a purchaser of the land from him. If it were true that he had been paying rent to- Foss for a number of years, it would make no difference; for defendant dealt with the complainant, and as between them became his tenant, and he is es-topped from questioning his landlord’s title as it then existed, whatever Foss might do, were he a party. It is suggested that complainant cannot recover because there was not a promise to pay rent. The reply to that is that there was evidence pro and con upon that question, and the judgment of the commissioner upon it is not subject to review, as already intimated.

The judgment of the circuit court is reversed, and a judgment of ouster will be entered here in accordance with the judgment of the commissioner which is hereby affirmed, together with costs of all courts to be taxed.

The other Justices concurred.


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    CLEVELAND v. ROTHSCHILD.
    Pleading—Amendment—Change in Cause of Action.
    In a suit to recover the purchase price of certain capital stock which defendant agreed in writing to purchase before the corporation was organized, plaintiff declared for the price of 1,250 shares at $5,000, as set out in the contract. On the trial it appeared that the corporation, by agreement of all parties, was actually organized with one-fifth the number of shares originally contemplated, but with the same assets, and defendant received 250 of the shares. Held, that an amendment of the bill of particulars in accordance with the proof did not introduce a new cause of action and should have been allowed, under the statute of amendments. 3 Comp. Laws, § 10268.
    Error to Wayne; Rohnert, J.
    Submitted October 5, 1904.
    (Docket No. 12.)
    Decided October 26, 1904.
    Assumpsit by William H. Cleveland against Sigmund Rothschild to recover the purchase price of certain corporate stock. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Tarsney & Fitzpatrick and R. I. Lawson, for appellant.

      Chamberlain & Quise (Elliott Q. Stevenson and Leo M. Butzel, of counsel), for appellee.
   Moore, C. J.

This suit is brought to recover the sum of $5,000 and interest thereon, which plaintiff claims is due him from the defendant. The case has been here before, and a reference to it as reported in 132 Mich. 625 will make a long statement here unnecessary. The declaration was upon the common counts, with a bill of particulars as follows:

“ (1) Eor the price and value of 1,250 shares of the capital stock of the Cleveland Stone Company, a corporation, sold and transferred by plaintiff to defendant September 25, 1892, $5,000. * * * (2) September 25, 1892, it was agreed in writing between the said plaintiff and defendant that said defendant should receive 1,250 shares of the capital stock of the Cleveland Stone & Supply Company which said company was incorporated under the name and style of the Cleveland Stone Company, in consideration of $5,000 to be paid to said plaintiff as a bonus, which said sum of $5,000 so agreed to be paid to the plaintiff by the defendant the plaintiff seeks to recover in this action, together with interest thereon from October 1, 1892.

“Dated at Detroit this 19th day of March, A. D. 1896.”

The plea was the general issue, with notice of set-off.

On the trial plaintiff moved to amend'his bill of particulars by adding the following item:

“To the agreed price and value of 250 shares of the capital stock of the Cleveland Stone Company, said 250 shares being equivalent, both as to number of shares and value, to 1,250 shares of stock mentioned in a written agreement between the plaintiff and defendant and John H. Brown, dated September 28, 1892, $5,000.”

Defendant objected to the proposed amendment, and it was denied by the court for the reason that it stated a new cause of action against which the statute of limitations had run. The judge was of the opinion he had no power, as a matter of law, to permit the amendment, and stated, if he thought he had any discretion, he would have exercised it, and permitted the amendment. The defendant claimed the plaintiff had not made out performance of the written contract of September 28, 1892. Also that the proofs show that some time in the month of April or May, 1893, the parties made a new agreement, and that recovery must be had upon such new agreement, or not at all. The learned trial judge took this view of the matter, and directed a verdict for defendant.

The defendant insists here, as he did in the court below, that the proposed amendment introduced a new cause of action, and the trial judge did not possess the power to allow it. Is this contention correct? The record discloses that when the contract of September, 1892, was made the business was not conducted by a corporation, but one was to be formed for that purpose, which was to take over the business and agreement then existing between Mr. White, owner of the Anderson quarry, and Mr. Odette and Mr. Cleveland. The entire assets of the proposed company consisted of the business and agreement which it was to so take over. The company was to be capitalized in the sum of $50,000, for which 5,000 shares of stock of the par value of $10 each were to be issued. 1,250 shares of this stock were to be issued to defendant, for which he was to pay Mr. Cleveland $5,000 as a bonus. The record also discloses that plaintiff gave evidence tending to show that by the mutual consent of all the parties, including the defendant, instead of incorporating with a capital of $50,000, a company was incorporated with $10,000 capital, of which 250 shares of the par value of $10 each were issued to defendant.

The statute of amendments reads (section 10268, 3 Comp. Laws):

“ The court in which any action shall be pending, shall have power to amend any process, pleading, or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment rendered therein.”

It will be observed that the assets of the proposed company and of the company which was in fact formed consisted of the same things. It will also be observed that defendant'was to have one-fourth of all the shares of stock which were to be issued in the proposed company, and, if the evidence offered by the plaintiff is true, that he in fact obtained one-fourth of all the shares of stock in the company which was formed. We think it clear that he obtained just what was intended in the first instance, and that the proposed amendment did not set up a new cause of action. The statute we have quoted authorized the circuit judge to allow the proposed amendment. As he states he would have allowed it if he had supposed he had any discretion in the matter, the judgment is reversed, and a new trial ordered. See Welch v. Hull, 73 Mich. 47; Pratt v. Montcalm Circuit Judge, 105 Mich. 499; St. Clair Tunnel Co. v. St. Clair Circuit Judge, 114 Mich. 417.

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


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    BARNES v. CITY OF WEST BAY CITY.
    Highways and Streets—Defective Sidewalks—Personal Injuries—Case for Jury.
    Evidence examined in an action against a city for injuries received from a fall on a defective sidewalk, and held to make a case for the j ury, it being claimed that plaintiff was negligent i n attempting to pass over the walk in question with knowledge of its defective condition.
    Error to Bay; Shepard, J.
    Submitted October 6, 1904.
    (Docket No. 17.)
    Decided October 26, 1904.
    Case by Lutheria A. Barnes against the city of West Bay City for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    This action was brought to recover damages for injuries sustained hy the plaintiff from a fall on a defective sidewalk in West Bay City.
    Plaintiff, a woman of mature years, and a companion, were returning home from their day’s work at a factory at about six o’clock in the evening of November 18, 1902, when she stepped into a hole in the sidewalk and fell and was injured thereby.
    It appeared in evidence that plaintiff had passed over the walk in question many times, and knew of its general dilapidated condition, and on the evening in question was walking slowly, “ picking her way along,” to avoid the dangerous places. There were other streets, not quite so convenient for her, by which she could have reached home, and there was an opportunity to avoid the particular place where the injury occurred by stepping off the sidewalk and walking on the ground. The evening was dark, and there was an electric light half a block awáy.
    Defendant offered no evidence.

      S. G. Houghton, for appellant.

      De Vere Hall (Gilbert W. Hand, of counsel), for appellee.
   Moore, C. J.

This action is brought to recover for injuries received by the plaintiff upon a defective sidewalk. The city offered no evidence. From a judgment obtained by the plaintiff, the case is brought here by writ of error. The sole question involved is, Do the facts show plaintiff guilty, as a matter of law, of contributory negligence ? It is claimed by the city they do, and that the case is within Irion v. City of Saginaw, 120 Mich. 295, and like cases. On the part of the plaintiff it is claimed the testimony presented a question of fact for the jury, under Styles v. Village of Decatur, 131 Mich. 443, and like cases*. The case is near the border line. It would profit no one to set out the testimony in detail. We will content ourselves with saying the testimony made a question of fact for the jury.

Judgment is affirmed.

The other Justices concurred.


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    HIRSH v. FISHER.
    1. Appeal and Error—Notice of Proceedings—Waiver.
    Defendants in error will be held to have waived any failure to give them proper notice of the proceedings in error, where the case is heard without objection, and the record is prima facie sufficient to present the proceedings below.
    2. New Trial—Rehearings—Circuit Court—Certiorari.
    Circuit Court Rule 21 authorizes the circuit court to grant a rehearing on a certiorari to a justice of the peace.
    3. Process — Service on Joint. Defendants — Judgment — Validity.
    Where partners are sued before a justice of the peace, and only one is served with process, a judgment for plaintiff against all is not void merely because of want of service on the other defendants. 1 Comp. Laws, § 840.
    4. Plea in Abatement—Special Appearance.
    Where joint debtors are sued before a justice of the peace on the theory of the existence of a partnership between them, a special appearance by the only defendant served to have the proceedings dismissed on the ground that he was not a copartner is not equivalent to a plea in abatement requiring replication and proof by plaintiff to meet it.
    5. Affidavit Served with Summons — Admissibility — Knowledge of Affiant.
    An affidavit served with a justice’s summons to the effect that defendants were justly indebted to the plaintiffs in a certain sum, as a balance due for goods sold and delivered, is admissible in evidence, though it does not state that affiant is agent, attorney, or bookkeeper for plaintiffs.
    6. Evidence—Admissions—Partners.
    In a suit in justice’s court against partners, only one of whom was served with process, to recover an alleged balance due on account for goods sold and delivered, oral testimony that the defendant who was served bargained for the goods, that they were accepted and used by defendants, and were not paid for, is admissible.
    7. Security for Costs—Justice’s Court.
    Failure of a nonresident plaintiff to file security for costs in a suit begun before a justice of the peace will not require reversal of a judgment for plaintiff where no proper demand was made and security was furnished in circuit court pending certiorari.
    8. Attorneys — Appearance—Justice’s Court—Proof of Authority.
    Proof of authority of an attorney to appear for plaintiff in justice’s court is unnecessary, under section 762, 1 Comp. Laws, unless demanded, where joint debtors are sued, and one of them, with his attorney, remains in the court-room throughout the trial, without objecting to the appearance of the attorney for plaintiff.
    Error to Mason; McAlvay, J.
    Submitted October 6, 1904.
    (Docket No. 28.)
    Decided October 26, 1904.
    Assumpsit in justice’s court by Sol. J. Hirsh and others, copartners as Hirsh, Wickware & Parks, against William Fisher, Isaac Fisher, and David Fisher, copartnei’S as Fisher Bros., for goods sold and delivered. A judgment for plaintiffs was reversed by the circuit court on certiorari, and plaintiffs bring error.
    Reversed.

      Fitch & Reek, for appellants.

      V. A. Fitch (A. A. Keiser, of counsel), for appellees.
   Hooker, J.

Plaintiffs commenced this action by summons issued by a justice of the peace. Judgment was rendered in favor of the plaintiffs, and the defendants removed the cause to the circuit court by certiorari, where the judgment was affirmed. A motion for rehearing was afterward'granted, which rehearing resulted in a reversal of the judgment of the justice ánd the entry of a judgment in favor of the defendants for costs. The plaintiffs have brought the case to this court by writ of error.

The return of the justice shows that the summons described the defendants as copartners doing business under the name of Fisher Bros., and the officer’s return states that he served the writ upon “Fisher Brothers, a co-partnership, by delivering to William Fisher, one of said copartners, a copy,” etc. The plaintiffs appeared by attorney upon the return day of the summons, and defendants appeared specially by attorney, and moved to quash the proceedings on the grounds that William Fisher was not a copartner; that there was no proper service of the summons; and that the affidavit proving the claim, served with the summons, did not state that the affiant was agent, attorney, or bookkeeper of the plaintiffs. This motion to quash being denied, plaintiffs declared orally, and defendants refused to plead or take further part in the case. After an interval the justice proceeded to try the cause, both counsel being present; also defendant William Fisher. Testimony was introduced by reading the affidavit attached to the summons, and Mr. Reek, attorney for the plaintiffs, was sworn as a witness. He stated that:

“William Fisher, of Fisher Brothers, told him [the witness] that he [William Fisher] bargained for the goods declared upon;. that they were accepted by the defendants* and used in their stock at their store, and were not paid for.”

At this juncture counsel renewed the motion to quash, offering an affidavit in support of it, the substance of which was that William Fisher was not a member of the firm of Fisher Bros.; that he was a bankrupt, but had not yet received his discharge in bankruptcy. The plaintiffs objected to this motion upon the ground that defendants had appeared specially and refused to plead, and for other reasons. Other testimony was introduced by the plaintiffs, and judgment was rendered in favor of the plaintiffs and against the defendants for $64 damages and $3 costs.

Among the errors alleged in the affidavit for certiorari are the following, viz.: The justice erred:

“ (1) In trying the cause on the return day, and before service was had upon two of the defendants.

“ (6) In receiving in evidence the affidavit filed as proof of claim.

‘ ‘ (7) In deciding that the evidence offered was sufficient to make a case against Fisher Bros.

“(12) In not requiring a nonresident plaintiff to give security for costs.

“ (14) In rendering judgment for the plaintiffs, when it was not shown that Henry Reek, who appeared for the plaintiffs, had authority to do so.

“ (15) In rendering a judgment in the face of the fact that the Fishers’ uncontradicted affidavit showed that William Fisher was a bankrupt, his case pending in a Federal court, and that he was not a copartner in the firm of Fisher Bros.”

The other assignments of .error are either covered by the foregoing or abandoned.

Before the cause was heard in the circuit court, on motion of the defendants’ counsel, security for costs was ordered and filed. On April 17, 1903, the judgment was affirmed by a judgment duly entered. On April 21,1903, a stay was ordered for the purpose of giving an opportunity for a motion for a new trial, etc., the time to make the samé being extended to the first day of the succeeding term. On June 16, 1903, such motion was made, and it was granted on June 27,1903, exception being duly taken. On July 7th the case was again heard, and on January 25, 1904, the judgment of the justice was reversed, defendants obtaining a judgment to that effect, and for costs.

Counsel for the defendants raise the preliminary question that the case is not properly before us, and therefore should not be considered. We find a writ of error and a return, accompanied by a certified transcript of the proceedings shown by the files and records of the circuit court, which include the return of the justice. The case has been heard without objection, and, if defendants have not been properly notified of any of the proceedings, we must treat the irregularity as waived.

The first point to be considered is the validity of the order granting a rehearing and the subsequent judgment of reversal. We know of no authority holding that the power of a court to grant new trial’s does not include a rehearing upon certiorari. This motion was made under a seasonable order ‘ ‘ extending the time for the application for new trial, rehearing, or such other steps as might be necessary to obtain a rehearing or a review.” We are of the opinion that Circuit Court Rule 21 covers hearings upon certiorari, and that the motion in this case was in compliance with the rule.

The other questions relate to proceedings before the justice. The record shows that only one of the defendants was served with process, and the only appearance is said to have been special for the purpose of a motion to quash. The justice so understood it, and acted upon such understanding. It seems to have been the theory of plaintiffs’ counsel that the service upon the copartner was a service upon them all, and that he might treat them all as before the court upon proof of such a service. He appears to have taken judgment against all upon.such an understanding, but it does not follow that the judgment is erroneous for that reason. Actions are brought against individuals as such, and each has a right to be served with process before he is subjected to imprisonment or loss of property in consequence. But when joint debtors are sued before a justice of the peace, and all are not served with process, judgment is rendered against all, as was done in this case. See 1 Comp. Laws, § 840. In this case William Fisher was sued with others as a joint debtor. He only was served with process. The justice had jurisdiction to try the case, and did try it, and his judgment was not void for want of service on the other defendants.

Counsel for William Fisher appeared specially, and sought to have the proceedings dismissed upon the ground that he was not a copartner. Counsel say that this was equivalent to a plea in abatement, under Fisher v. Northrop, 79 Mich. 288; that plaintiff should have filed a replication, and offered proof upon this question. Had the defendant chosen to appear, one of the questions upon the trial might have been whether he was in fact a copartner and joint debtor as charged, and another whether he was a bankrupt discharged from this obligation. As to the latter question the burden of proof would have been upon him, and as to the former there is evidence in the record making a prima facie case of partnership. So, if we were to treat this as a proper appearance and plea, we should be compelled to sustain the finding of the justice. The affidavit filed was not plea and evidence also. See Jewell v. Lamoreaux, 30 Mich. 155. We are of the opinion that, the affidavit served with the summons and oral evidence made a prima facie case for plaintiffs, and that they were admissible; the latter question being one, however, not usually considered upon certiorari, where there is evidence properly admitted sufficient to make a prima facie case.

It is said that the judgment should be reversed because security for costs was not required by the justice, and for the further reason that plaintiffs’ counsel offered no evidence of his authority to appear and prosecute the case. William Fisher was present, and, according to the record, all of the defendants were represented by counsel on the return day. No objection was made to the appearance of counsel before the justice, and, while the plaintiffs did not file security for costs, counsel for plaintiffs then and there said to defendants’ counsel that if he desired security for costs he would step into an office near by and obtain a Mr. Stray to indorse his ñame on the docket as such, but defendants’ counsel made no reply, and the matter appears to have dropped. Security was subsequently furnished in the circuit upon defendants’ motion. We think this sufficient to justify a judgment of affirmance.

The affidavit for certiorari alleges that defendant Fisher and his attorney remained in the court-room throughout the trial, and that no proof was offered to show the authority of plaintiffs’ attorney. The return of the justice • is silent upon the subject.

The statute (1 Comp. Laws, § 762) provides:

“ The authority to appear as attorney for any party may be either written or verbal; and such authority shall be proved by the attorney or other competent testimony, in all cases where requested by the opposite party, or where the opposite party shall not appear.”

We are of the opinion that this should not have a technical construction. William Fisher, the defendant served, did appear—i. e., he was present with counsel throughout the trial—and he caused a motion to be made in the case, which he now says should be given the effect of a plea. No objection was made to the appearance of counsel for plaintiffs. Defendant William Fisher did appear in the sense of being present. We think that was an appearance within the meaning of the statute, and hence proof was unnecessary unless demanded.

The judgment of the circuit court is reversed, and that of the justice affirmed. Judgment will be entered accordingly.

The other Justices concurred.


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    RABER v. HYDE.
    1. Trespassers—State Land-Timber—Title.
    A trespasser on State tax lands acquires no title to timber he cuts thereon and can transfer none.
    3. Replevin—Questioning Title.
    Where plaintiff in replevin claims railroad ties by virtue of a sale by a State trespass agent, the ties having been cut on State land, defendant, claiming under a sale by the trespasser, cannot question plaintiff’s title.
    Error to Cheboygan; Shepherd, J.
    Submitted October' 4, 1904.
    (Docket No. 165.)
    Decided October 26, 1904.
    Replevin by Philip W. Raber and Artemus D. Watson, copartners as Raber & Watson, against Robert N. Hyde. There was judgment for plaintiffs, and defendant brings error.
    Affirmed.

      H. W. Harpster, for appellant.

      Frost & Sprague, for appellees.
   Carpenter, J.

This is an action of replevin to recover the possession of certain railroad ties. These ties were made by one William Meden, and it must be assumed on this record that they were made from timber growing on certain State tax lands. Before the ties were made, Meden had contracted to sell them to plaintiffs, the place of delivery being specified as Bellant’s Landing, on Lake Huron. Meden had also, it seems, agreed in a prior contract to sell the ties to the defendant. The place of delivery specified in this contract was High Banks, a point on Lake Huron about two miles north of Bellant’s Landing. Meden did in fact deliver the ties at Bellant’s Landing, where they were inspected and accepted by plaintiffs. Shortly thereafter the ties were seized by a State trespass agent on the ground that, the timber having been cut on State tax lands, the ties belonged to the State. This State trespass agent subsequently sold the ties to plaintiffs. Still later, defendant, claiming the ties as his under his contract with Meden, seized them, and carried them away. Thereupon plaintiffs instituted this suit. The trial court directed a verdict in plaintiff’s favor. Was this correct ?

It is clear that the ties never belonged to Meden, and therefore do not belong to defendant. They do belong either to the State or to plaintiffs. Defendant insists that the title acquired by plaintiffs from the sale by the State was defective. If this is true, it does not aid defendant. The State does not question plaintiffs’ title, and defendant, having no right to the possession of the ties, cannot question it. See Allen v. Cowley, 128 Mich. 530.

Defendant complains of certain rulings admitting testimony, which, under this view of the case, are unimportant. W¿ decline, therefore, to consider them.

Judgment is affirmed, with costs.

The other Justices concurred.


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    ERIKSON v. ALPENA CIRCUIT JUDGE.

    Mandamus—Pleading—Answer—Sufficiency.
    In a mandamus against a circuit judge, a motion to strike portions of his answer, on the ground that they relate to matter not within the knowledge of respondent, or based on the records and flies in the cause, will be denied, the proper practice being to call the attention of the court on the hearing to such parts of the answer as are not entitled to consideration.
    Mandamus by Charles S. Erikson to compel Frank Emerick, circuit judge of Alpena county, to vacate an order denying a writ of audita querela: On motion to strike from the files parts of the return of respondent.
    Submitted October 18, 1904.
    (Calendar No. 20,466.)
    Motion denied October 26, 1904.

      A. H. McMillan (Fred L. Eaton, of counsel), for relator.

      Ward B. Oonnine, for respondent.

       Rehearing denied March 7, 1905.

   Per Curiam.

The relator moves that we strike from the answer all matter not shown to be within the personal knowledge of the respondent, or based on the records and files in the cause. We are cited to no case which prescribes the practice resorted to by the relator of asking us to mutilate the judge’s answer to the order to show cause. The value of the writ of mandamus consists largely of its summary character, and we are loath to ingraft upon the practice any unnecessary feature that will impair its efficiency. A better practice is to call the attention of the court, upon the hearing, to such parts of the answer and accompanying papers as are not entitled to consideration, when they can be eliminated or disregarded, care being taken to avoid a waiver through pleading subsequent to the answer.


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    DAPPER v. SMITH.
    Elections—Primary Law— Constitutionality — Candidates — Oath.
    The Kent county primary election law (Act No. 326, Local Acts 1903), which requires in section 3 that, before the name of any candidate shall be placed on the ballot at a primary election, such candidate shall on oath declare his purpose to become such, violates section 1 of article 18 of the Constitution prescribing the oath which shall be required of public officers, and providing that no other oath shall be required as a 'qualification for any office, since thereby voters are precluded from choosing as a candidate one who declines to himself seek the office.
    Certiorari to Kent; Wolcott, J.
    Submitted October 28, 1904.
    (Calendar No. 20,800.)
    Decided October 28, 1904.
    Mandamus by Emil A. Dapper to compel Connor H. Smith, county clerk of Kent county, to certify the names of candidates chosen by a mass convention to a place on the official ballot. There was an order denying the writ, and relator brings certiorari.
    Reversed.

      Emil A. Dapper, in pro. per.

      William B. Brown, for respondent.
   Per Curiam.

The relator applied to the circuit court for mandamus to compel the respondent to certify the names of the candidates chosen by the socialist party of Kent county in a mass convention to the commission as entitled to a place on the official ballot. This application was denied, and certiorari is brought to review the ruling of the circuit judge. A prompt decision is indispensable to the preservation of relator’s rights. Were this not so, we should feel that the grave questions involved not only merited, but demanded, a much fuller discussion than we are able to give them.

Briefly stated, the question involved is whether section 3 (Act No. 326, Local Acts 1903) of the act providing for , primary elections in Kent county is in conflict with the 1 Constitution, for the reason that it denies a place on the 1 ballot to any candidate unless such candidate will declare 1 on oath, iii advance, the fact that he is a candidate for the office.

Section 1 of article 18 of the Constitution prescribes the [ oath which shall be required of public officers, and further I1 provides that no other oath, declaration, or test shall be required as a qualification for any office or public trust.

This provision is not one designed for the benefit of the aspirant for public station alone; it is in the interest of the electorate as well. The provision of this law which requires that, before the name of any candidate shall be placed upon the ballot at the primary election, such candidate shall on oath declare his purpose to become such, excludes the right of the electorate of the party to vote for the nomination of any man who is not sufficiently anxious to fill public station to make such a declaration. The man who may be willing to consent to serve his State or his community in answer to the call of duty when chosen by his fellow citizens to do so is excluded, and the electorate has no opportunity to cast their votes for him. It is not f an answer to this reasoning to say that the electors may j still vote for such a man by using “ pasters.” We cannot ignore the fact that parties have become an important and ¡ well-recognized factor in government. Certain it is that this law fully recognizes the potency of parties, and provides for party action as a step toward the choice of an officer at the election. The authority of the legislature to enact laws for the purpose of securing purity in elections does not include the right to impose any conditions which will destroy or seriously impede the enjoyment of the < elective franchise. Attorney General v. Detroit Common Council, 58 Mich. 213.

We cannot escape the conclusion that the provision in-question does most seriously impede the electors in the ¡ choice of candidates for office, and that it is in conflict/,' with the provisions of section 1 of article 18 of the Con-f stitution. It by no means follows that reasonable provision may not be made by legislation for an initiative in placing upon the ballot the names of those to be voted for, as, for instance, by requiring a petition by a stated percentage of the voters of the party. But this provision goes further, and precludes the voters from choosing as a candidate one who declines to himself seek the office.

The order of the court below will be reversed and the writ granted.