author: Long,* J.

text:
    SERVISS v. WASHTENAW CIRCUIT JUDGE.
    1. Garnishment — Past-due Note.
    A past-due promissory note is subject to garnishment.
    3. Same — Disclosure—Conclusiveness.
    A disclosure by a garnishee that he does not know whether or not a past-due note executed by him to the principal defendant was still in the latter’s hands at the time of service of process is not conclusive against his liability to the plaintiff, since the statute (3 How. Stat. § 8068) provides for a trial of the issue framed by the affidavit and the disclosure.
    3. Same — Nonresident Defendant — Substituted Service.
    The validity of the substituted form of service on the principal defendant in garnishment proceedings, where he is a nonresident, provided by 3 How. Stat. § 8087, does not depend upon the disclosure of the garnishee, although no judgment can be had in such case against the principal defendant unless some credits are found in the garnishee’s hands; as the existence or nonexistence of such credits is the subject of inquiry under section 8068.
    4. Same — Jurisdiction.
    The eourtsof this State may, by garnishee process, acquire jurisdiction over a nonresident defendant for the purpose of subjecting a debt due him from a citizen of the State to the payment of plaintiffs demand.

      Mandamus by Wilber M. Serviss to compel Edward D. ICinne, circuit judge of Washtenaw county, to set aside a service upon the principal defendant, a nonresident, in garnishment proceedings.
    Submitted February 8, 1898.
    Writ denied March 1, 1898.

      Lawrence & Butterfield, for relator. .

      Arthur Brown and M. J. Cavanaugh, for respondent.
   Long,* J.

The relator is a resident of the State of Indiana. In November, 1897, Nellie A. Lennon, of Washtenaw county, this State, commenced an action in the Washtenaw circuit court against relator by summons, and caused a writ of garnishment to issue against Edward S. Serviss, of Washtenaw county. The writ of garnishment was based upon an affidavit setting forth that the principal defendant was a nonresident of this State, and that said garnishee was indebted to the principal defendant in certain sums of money. Proceedings were thereupon taken, which are claimed to be in accordance with section 8087,2 How. Stat., providing for substituted service upon nonresidents where property or credits of nonresidents have been garnished in this State; and a copy of said summons, affidavit for. writ of garnishment, writ of garnishment, and return of the officer thereon of service upon the garnishee defendant were served upon the principal defendant in the State of Indiana. The garnishee filed a written disclosure, in which he stated that, at the time of the service of the writ upon him, he had made, executed, and delivered to the principal defendant three certain promissory notes, which remained unpaid, but] that he did not know whether or not said notes were at the time of the service of said writ still held by the principal defendant. A demand was thereupon made by the plaintiff for an oral examination of the garnishee. The garnishee appeared, and gave testimony, which was taken by the court stenographer, and by him reduced to writing. This does not appear to have been signed by the garnishee, though it was filed in the case. On such direct examination, the garnishee testified that he still owed the principal defendant, who is his brother, about $3,000. On cross-examination the following took place:

Q. Do you know whether you owe your brother anything or not ?
“A. There are two ways of answering that.
“ Q. Do you know whether he held any papers at that time?
“A. No; I don’t know that.”

Upon further cross-examination he testified that he gave his brother three promissory notes, — one for $2,000, given in 1893; one for $1,000, given in 1896; and one for $633.-38, given November 18, 1897; that he gave chattel mortgages with the first two notes, bnt could not state whether his brother held the mortgages when the garnishee process was served on him, November 27, 1897. It is conceded that the first note was past due when the process was served on the garnishee, and that the other two notes were not due at that time. A motion was made in the court to set aside the service on the principal defendant, upon the ground that it does not affirmatively appear by the disclosure that property or credits had been reached by garnishee process. This motion was denied; and relator now asks a mandamus to compel the circuit court to vacate the order denying the motion, and directing the entry of an order to set the service aside. A return has been made to an order to show cause, and the above statement is-substantially what appeared in the court below.

It is contended by the relator that, before the circuit court has jurisdiction to proceed against the principal defendant, it must .affirmatively appear that he had the notes in his possession at the time of service on the garnishee, and that it cannot be said that under this examination the garnishee defendant is indebted to the principal defendant. In Littlefield v. Hodge, 6 Mich. 326, it was said:

“Garnishee process is not, we think, properly applicable to such paper [negotiable paper] until it ceases to become negotiable by falling due. The debtor cannot know certainly in whose hands his obligation may be when it matures, and his admission that such a note is outstanding cannot be effectual as an admission of an indebtedness to the original holder of such a character as to be a continuing liability in his hands. The courts have very generally, in the absence of statutes to the contrary, regarded negotiable paper as not liable to be reached in this way.”

But it appears that the first note given was past due when the garnishee process was served. It was expressly held in Somers v. Losey, 48 Mich. 294, that a promissory note may be garnished after maturity. It is true that the garnishee defendant was unable to state whether or not any of the notes were still in the hands of the principal defendant at the time of service of process; yet we think this disclosure is not conclusive on the right of the plaintiff to further inquiry. In Fearey v. Cummings, 41 Mich. 376, it was said:

“It became a question whether, in trying this issue, the denial made by the garnishees in their disclosure of all indebtedness to Nellis, and their denial of possession and control of any property, money, goods, chattels, credits, and effects belonging to him, was conclusive on the plaintiffs, except in so far as there might be occasion to inquire concerning fraud; and the plaintiffs insisting that it .was not, and that they were entitled to controvert such denial, and the garnishees contending to the contrary, the circuit judge sustained the position of the garnishees. The court is unable to concur in this view. The issue instituted at the instance of the garnishees after their disclosure is one expressly ordained for the trial of the garnishees’ liability to the plaintiffs (2 Comp. Laws 1871, § 6475), and it covers exactly the same ground to which the denial applies; and it occurs to ask for what purpose authorize a trial to be invoked'if the matter has already been settled in favor of the garnishees by their denial?”

It was held, therefore, that the plaintiffs were entitled to make out an indebtedness from the garnishees to Nellis, notwithstanding this denial.

The statute referred to in that case is section 8068, 2 How. Stat., as amended. This section provides that, upon the filing of the disclosure, answers to written interrogatories, or report of the testimony or statement made by the garnishee on such personal examination in cases where such examination is had, “the matter of such affidavit [the affidavit for the writ of garnishment] shall be considered as denied (except so far as the same is admitted by such disclosure, answers to interrogatories, or report, which admissions shall have the effect of admissions in a plea, and also shall be prima facie evidence of the matters therein admitted). And thereupon a statutory issue shall be deemed framed for the trial of the question of the garnishee’s liability to the plaintiff.” The plaintiff in the suit followed the provisions of 2 How. Stat. § 8087, in relation to bringing in the principal defendant, who was a nonresident of the State. The validity of this substituted form of service upon the principal defendant does not depend upon the disclosure of the garnishee defendant, or upon the denial of an indebtedness which he may make when interrogated thereon. No judgment could be had against the principal defendant, it is true, unless some credits were found in the hands of "the garnishee; but whether such credits are in his hands is the subject of inquiry which may be had upon the statutory issue, which is provided in section 8068, 2 How. Stat.

It is further contended that a debt due to a nonresident defendant from a citizen of this State is not property, effects, or credits within this State, and hence will not support the jurisdiction of the courts of this State for a proceeding in remj that the domicile of a garnishee within this State does not give the courts of this State jurisdiction over the debts he owes to a party in another State, and is not sufficient to support an action in rem. It was held, however, in Newland v. Wayne Circuit Judge, 85 Mich. 151, that the statute points out the procedure to acquire jurisdiction over the principal defendant, not for the purpose of rendering a personal judgment against him, but to subject the choses in action in the hands of a third party to the payment of the plaintiff’s demand; and to this extent it confers jurisdiction upon the court to proceed. It was there said:

“ It is not instituted for the purpose of the recovery of property, nor the enforcement of a lien thereon. Its primary object is to reach the res in the hands of third persons, against whom there is no foundation for a personal claim when the summons issues.”

The court below was not in error in refusing to set aside the service upon the principal defendant.

The writ must be denied, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    THOMAS v. KENT CIRCUIT JUDGE.
    1. Mandamus — Dissolution of Injunction — Question of Law.

      Mandamus to compel the dissolution of an injunction is aproper remedy where the dispute is one of law merely.
    2. Boards of Supervisors — Public Buildings — Borrowing Money —Submission to Electors.
    The board of supervisors of a county may, by a mere majority vote of the members elect, adopt a resolution to submit to the electors of the county a proposition to borrow money for the purchase of a site for a county asylum for pauper insane, and the erection of suitable buildings thereon, under 1 How. Stat. §§475, 483 (subd. 7), empowering a majority of the board to borrow or raise by tax any sums necessary for any of the purposes mentioned in the act, provided that no greater sum than §1,000 shall be borrowed or raised in any one year for the purpose of repairing or constructing public buildings, unless authorized by a majority of the electors of the county voting therefor, although by section 484 a two-thirds vote is required before the board can exercise the power conferred by section 483, subd. 6, to “cause” such buildings “to be erected.”
    3. Same — Determination as to Necessity and Cost.
    The adoption of a resolution which recites that such asylum, if erected, would within a few years be a self-sustaining institution and a saving to the county, and which fixes the amount of the proposed loan, is a sufficient determination by the board of the necessity for the building and of the sum necessary to be raised, within 1 How. Stat. § 492.
    4. Same — Form of Ballots — Statutes — Directory Provisions.
    The resolution of submission provided that the ballots should be in the following form: “Shall the board of supervisors * * * borrow * * * the sum of §50,000, and spread upon the various assessment rolls, * * * for the repayment of said money, §10,000 in the year 1898 * * * [providing for five annual payments], for the purpose of purchasing a suitable site, and the erection of suitable buildings thereon, for a county pauper insane asylum?” followed by the word “Yes,” and a duplicate thereof, by the word “No.” Held, a sufficient compliance with 1 How. Stat. § 492, providing that such ballots shall have thereon the words, “For the Loan,” and “Against the Loan,” which is to be construed as a directory provision.
    5. Same.
    The fact that the proposition, as submitted to the electors, embodied method and time of payment, did not render it objectionable.

      Mandamus by William J. Thomas, clerk of the board of supervisors of Kent county, to compel Allen C. Adsit, circuit judge of said county, to dissolve an injunction restraining the submission to the electors of the question of borrowing money and levying a tax to erect a county pauper insane asylum.
    Submitted March 1, 1898.
    Writ granted March 8, 1898.

      Stuart & Barker, for relator.

      Rodgers, McDonald & Corwin, for respondent.
   Hooker, J.

At its January, 1898, session, the board of supervisors of the county of Kent adopted the following resolution, upon aye and nay vote:

Whereas, Kent county has been highly favored,, through the untiring efforts of the senators and representatives of said county in the State legislature, in securing the necessary legislation to enable said county to erect and maintain a county pauper insane asylum to care for the indigent insane of said county; and
Whereas, several thousand dollars is annually paid by said county to the State asylum at Kalamazoo for the care of the indigent insane of said Kent county, as the statistics for the last five years, ending December 1, 1896, show the amount so paid to be $46,575.80, with 44 inmates on September 15, 1897; said asylum also receiving from the State, for county charges who have remained therein for two years or more, for the fiscal year ending June 30, 1896, the sum of $22,498.36, as the statistics show, such asylum having as State charges from Kent county on said June 30, 1896, 128 patients, and on September 15,1897,154 patients; taking said sum as a basis, the amount paid by the State for the past five years for the care of the indigent insane of Kent county would amount to the sum of $112,-491.80; and
“ Whereas, in a few years such an asylum would be a self-sustaining institution, and a saving to Kent county: Therefore be it
“Resolved, by the board of supervisors of the county of Kent, that there be submitted to the qualified electors of said county, at the annual spring election to be held on the first Monday in April, A. D. 1898, the proposition to borrow, on the faith and credit of said county, and to issue its evidence of indebtedness therefor, the sum of $50,000, the proceeds to be used solely for the purpose of purchasing a suitable site for and the erection of a suitable building or buildings thereon for a county pauper insane asylum in said county of Kent; said money so borrowed to be paid in five equal annual installments, of $10,000 each, the first installment thereof to be paid in the year 1898. Said sum so borrowed tó be repaid by spreading the same upon the taxable property of Kent county, as follows: $10,000 in the year 1898, $10,000 in the year 1899, $10,000 in the year 1900, $10,000 in the year 1901, and $10,000 in the year 1902. ■ And be it further
“Resolved, that the county clerk be, and he is hereby, instructed to cause notices of said proposition to be posted in three conspicuous places in each of the several townships and wards in said county of Kent, at least 30 days prior to the first Monday in April, A. D. 1898; and that said county clerk cause such notice to be published in two of the newspapers printed and circulating in the said county of Kent for at least three successive weeks prior to the time of holding said election. And be it further
“Resolved, that the form of the ballots shall be as follows: ‘Shall the board of supervisors of the county of Kent, State of Michigan, borrow, on the faith and credit of said county, the sum of $50,000, and spread upon the various assessment rolls of the townships and wards of said county, for the repayment of said money, $10,000 in the year 1898, $10,000 in the year 1899, $10,000 in the year 1900, $10,000 in the year 1901, and $10,000 in the year 1902, for the purpose of purchasing a suitable site for and the erection of a suitable building or buildings thereon for a county pauper insane asylum, in said county of Kent? Yes.’ ‘Shall the board o.f supervisors of the county of Kent, State of Michigan, borrow, on the faith and credit of said county,- the sum of $50,000, and spread upon the various assessment rolls of the townships and wards of said county, for the repayment of said money, $10,000 in the year 1898, $10,000 in the year 1899, $10,-000 in the year 1900, $10,000 in the year 1901, and $10,000 in the year 1902, for the purpose of purchasing a suitable site for and the erection of a suitable building or buildings thereon for a county pauper insane asylum in said county of Kent? No.’ And be it further
“Resolved, that the county clerk of said county be, and he is hereby, directed to take the necessary steps to cause said proposition to be placed on proper ballots, to be distributed in the same manner and by the same persons distributing the regular ballots for said spring election to be held on said first Monday in April, A. D. 1898.”

It received 27 votes; 18 supervisors-voted against it, and three were absent. Subsequently certain taxpayers filed a bill, and obtained an injunction restraining the submission of the question to the electors of the county. Upon the denial of a motion to dissolve said injunction, this application was made for a mandamus to require such action.

That this is a proper remedy where the dispute is one of law merely, see Van Norman v. Jackson Circuit Judge, 45 Mich. 204, McGrath, Mand. Cas. No. 827; Ionia, etc., Ins. Co. v. Ionia Circuit Judge, 100 Mich. 606, McGrath, Mand. Cas. No. 810.

The meritorious question is* whether a sufficient number of the supervisors voted for the resolution, counsel for the respondent urging that the assent of two-thirds of the supervisors elect was essential to the submission of the question.

Section 475, 1 How. Stat., provides:

“ A majority of the supervisors of any county shall constitute a quorum for the transaction of the ordinary business of the county, and all questions which shall arise at their meetings shall be determined by the votes of a majority of the supervisors present, except upon the final passage or adoption of any measure or resolution, in which case a majority of all the members elect shall be necessary.”

Section 483 prescribes the powers of boards of supervisors, and contains 17 subdivisions. We quote a few of them:

“Fifth. To remove or designate a new site for any county buildings required to be at the county seats, when such removal shall not exceed the limits of the village or city at which the county seat is situated, as previously located.
“Sixth. To cause to be erected the necessary buildings for poor-houses, jails, clerks’ offices, and other county buildings, and to prescribe the time and manner of erecting the same.
‘ ‘ Seventh. To borrow or raise by tax upon such county any sums of money necessary for any of the purposes mentioned in this act: Provided, that no greater sum than one thousand dollars shall be borrowed or raised by tax in any one year, for the purpose of constructing or repairing public buildings, highways, or bridges, unless authorized by a majoi’ity of the electors .of such county voting therefor as hereinafter provided.
“Eighth. To provide for the payment of any loan made by them, by tax upon such county, which shall in all cases be within fifteen years from the date of such loan.”

Were there no further provisions, the board might do any of these things by a vote of the majority of the members elect; but section 484 provides that—

“None of the powers .mentioned in the third, fifth, sixth, eleventh, twelfth, thirteenth, fifteenth, and sixteenth subdivisions of the last preceding section shall be exercised without a vote of two-thirds of all the members elected to such hoard.”

And section 492 designates the mode of submitting propositions to loan or tax to the electors. It provides:

“Whenever it shall become necessary, under the provisions of this act, to submit to a vote of the electors of any county the question of raising any sum of money by loan or by tax, the said board, after having determined the sum necessary to be raised, whether the same shall be made by loan or by tax, shall proceed to give the notice of such determination, and of the time when the question will be submitted to the electors of such county in the several townships; which notice shall be for the same length of time, and posted in the same manner, as required by the eighteenth section of this act; and the votes shall be taken, canvassed, certified, and returned in the same manner as required by the nineteenth section of this act, except that those voting for such tax or loan shall have written or printed on their ballots the words, ‘ For the Tax,’ or ‘ For the Loan,’ as the case may be, and those voting against the tax or loan shall have written or printed on their ballots the words, ‘Against the Tax,’or ‘Against the Loan,’ as the case may be.”

Subdivision 7 of section 483 is the one under which the borrowing or raising by tax is to be done. To the extent of $1,000 per year, it may be done without authority from the electors. It can hardly be contended that the determination to spread a tax or borrow $1,000 requires the assent of two-thirds of the board, and the only limitation on the authority to raise more is found in that subdivision. Obviously, after the favorable vote is cast, a majority of the board may order the tax or negotiate the loan. There is nothing in this subdivision that forbids the submission of the proposition to the electors by a majority vote. But a majority merely cannot “cause county buildings to be erected.” See section 483, subd. 6, and section 484, and Board of Sup'rs of Wayne Co. v. Wayne Circuit Judge, 111 Mich. 33. If we are to say that the submission of the question to the electors can be called a “causing to be erected,” the respondent’s contention is correct. In that case it would follow that a two-thirds vote would be necessary, not only where it is proposed to submit a proposition to the electors, but where the board itself proposes to raise $1,000 for the purpose of erecting buildings, though, if it were to be used for repairs, it is not clear that such vote would be required. The construction contended for is a technical one, and we doubt if it was contemplated by the legislature. Abstractly, we see no good reason for requiring a two-thirds vote by the supervisors before allowing the electors to determine the question, and we are of the opinion that a vote of the majority of the supervisors elect is sufficient.

Some other questions are raised; e. g., it is said that the board never determined that such a building was necessary, and that they did not determine the amount necessary to be raised. This is a requirement which counsel ascribe to 1 How. Stat. § 492, already quoted. We are of the opinion that the resolution submitted is tantamount to a formal determination of the necessity for the building, if such determination is required, and. that the resolution, and its adoption by the people, are all the determination of amount that is necessary. Had the vote been upon a resolution which did not fix the amount to be raised, such determination by the board would be necessary. We think the proposition was to raise by loan-, notwithstanding it also provided, and the people voted upon, the method and time of payment; and we are also of the opinion that the form of the ballot is not objectionable. It is not literally- in accord with the prescribed form, but gives the voter information as to the nature of the proposition, which the prescribed form would not do. The statute should be considered directory. See Paine, Elect. § 528, and oases cited.

We are of the opinion that the injunction should have been dissolved, and the respondent should be so advised.

The other Justices concurred.


author: Long, J.

text:
    TRUMP MANUFACTURING CO. v. VILLAGE OF BUCHANAN.
    1. Villages — Waterworks—Powers of Council — Contracts of Purchase — Charter Limitations — Presumptions.
    Under the general statute for the incorporation of villages, which empowers the common council to raise by general tax a sum, not exceeding in any one year one and one-fourth per cent, of the assessed valuation (1 How. Stat. § 2923), and which permits it to raise and expend, in making repairs or alterations upon waterworks previously constructed, such sum, not exceeding in any one year one-half of one per cent., as it may see fit, without submitting the question to the electors (3 How. Stat. § 2973), provided such sum shall be included in the one and one-fourth per cent, limitation, it seems that an indebtedness not exceeding one-half of one per cent., incurred by the common council for waterworks appliances, would, as against the objection that, together with the amount raised for the general fund, it exceeded one and one-fourth per cent., be presumed, in the absence of evidence that the general fund had been otherwise appropriated, to be payable out of such fund, and therefore to be valid.
    2. Same — Anticipating Revenues.
    The council, however, in view of the provision (1 How. Stat. § 2957) that ‘ ‘ no loans shall be made by the council, or by its authority, in any year, exceeding the amounts prescribed ” by the act, has no power to anticipate the revenues of succeeding years by executing a contract of purchase upon terms of credit which make the purchase price payable beyond the current fiscal year.
    3. Same.
    And it cannot be presumed, in order to sustain such a contract, that the council intended to raise the amount during the current year, and set it aside to meet the payment when due.
    Error to Berrien; Coolidge, J.
    Submitted October 6, 1897.
    Decided March 15, 1898.

      Assumpsit by the Trump Manufacturing Company against the village of Buchanan to recover the purchase price of waterworks appliances. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Howard, Boos & Howard, for appellant.

      A. A. Worthington and Edward Bacon, for appellee.
   Long, J.

This action was brought to recover the amount of $815.10 and interest, claimed to be due plaintiff upon a written contract for the purchase by defendant of two penstocks for waterworks purposes. The cause was heard before the court without a jury, and findings made. Judgment was entered in favor of defendant. e

It substantially appears from the findings that the plaintiff is the assignee of W. C. Leffel & Co., and is entitled to sue in its own name on this contract. The defendant village was organized under the general law. In September, 1894, Leffel & Co. made a proposition in writing to sell to the defendant the two penstocks, and set the same, for the sum of $843.10, terms of payment to be agreed upon. The president and clerk of the village wrote in answer to this proposition that it was accepted, and added: “Will at once correspond with your company as to our best terms of payment.” At a meeting of the village council had October 1, 1894, a resolution was passed accepting the proposition of Leffel & Co., with the following proviso: “That they furnish the same on one year’s time, at 5 per cent, interest.” On October 5th the clerk of the village sent a copy of this resolution to Leffel & Co., who answered on the 15th, acknowledging the receipt of it, and agreeing to the terms proposed, and stating: “We are at work upon the job, and will rush it through as rapidly as possible.” The clerk of the village acknowledged receipt of this letter. The work was completed, and sent forward to the defendant. The agent of Leffel & Co. was at Buchanan when the penstocks came, and he was directed by the president of the village and one of the trustees to take the penstocks to the dam across the St. Joseph river, in the village, and place the' same in the stone wall which separated the race from the river. They were set, and the village authorities caused them to be cemented in at the expense of the village. On January 25, 1895, the clerk, at the request of the common council, wrote Leffel & Co. as to what would be the best figure cash down, instead of note, which would be received in payment for the penstocks. In answer to this, Leffel & Co. wrote that it would take $830.78 if paid at the next meeting of the council. This was not paid, and no further action was taken. On April 25th Leffel & Co. presented its bill to the council. The legal name of Leffel & Co. was changed to the Trump Manufacturing Company, the plaintiff here, and in November it presented claim to the defendant. The common council thereupon, at a meeting duly held, took action upon the matter, and resolved:

“That the alleged contract, by reason of want of authority, was never obligatory on said municipal corporation, and has ever been inoperative and of no legal effect; that it never received said penstocks, and has never received any benefit; that they have never been annexed to any real estate, so as to become a part thereof, and are not in possession of the village.”

The proposition is then made in the resolution that the plaintiff receive them back, and that, if so accepted, the village will load them on cars, with freight prepaid to Springfield,' Ohio. This proposition was refused by the plaintiff, and suit was commenced. The court further found:

“ (10) That the assessed valuation of the real and personal property of the village for the year 1894, as shown by the ■assessment roll of that year, was the sum of $562,000, and that the village council duly and legally voted to raise for the year 1894 twelve mills on the dollar for the general fund, and three mills on the dollar for the highway fund; that, for the year 1895, the assessed valuation of the real and personal property of the village, as shown by the assessment roll, was the sum of $565,000, and that the village council duly and legally voted to raise for the year 1895 twelve and one-half mills on the dollar for the general fund, and two and one-half mills on the dollar for the highway fund.
“(11) That the common council undertook to purchase the penstocks in question under a supposition that the proposition for purchasing the horse power of the Buchanan Power & Electric Company, and operating waterworks by power obtained at the dam, would receive a majority of the votes of the taxpayers, and that the agent of the plaintiff had knowledge of the fact that the pen-stocks would be of no use or benefit to the defendant unless a new system or radical change in the existing waterworks should be introduced, and that a meeting of the taxpayers to determine whether such new system or change should be introduced was proposed.
“ (12) That on October 1, 1894, and for some time prior thereto, the village of Buchanan had operated a system of waterworks, but that they were located about three-fourths of a mile distant from the place where the penstocks were placed.
“(13) That on December 21, 1894, a resolution was passed by the common council, submitting to the vote of the taxpayers of said village a proposition for purchasing 150 horse power of the Buchanan Power & Electric Company, at an expense of several thousand dollars; that it was contemplated, among other things, that pumps to be used in the waterworks system of said village should be operated by the power thus obtained, and that water-wheels would be placed at the dam on the St. Joseph river, inclosed by the penstocks in question, to be used in connection with the operation of said waterworks system; that said proposition, at the meeting of the taxpayers on January 4, 1895, was defeated, and the plan of operating the waterworks from power obtained at the dam was abandoned. ”

As conclusions of law, embracing therewith some findings of fact above recited, the court found as follows:

“(1) That in the year 1894 the common council of the’ village of Buchanan had the legal authority to raise by taxation and loan a sum not exceeding one and one-quarter per cent, on the. dollar of the assessed valuation of the property in said village; that such assessed valuation amounted to the sum of $562,000; that the amount, therefore, which said council might lawfully raise by levy and pledge, was $7,025; that the council, in the spring of 1894, levied a tax of twelve mills on the dollar for the general fund, which made a total assessment of $6,744; that thereafter the common council, during the fiscal year, could not legally increase the indebtedness of the said village more than $216 without the consent of the taxpayers, at a meeting properly called; that the resolution of said council adopted October 1, 1894, providing for the-purchase of the penstocks in question, attempted to create an indebtedness of $843.10 against said village, to be paid in one year; that this sum was intended to be an additional burden on the taxpayers of said village, in addition to the amount of the general levy, since it was not to be paid out of the appropriations made by the common council to meet the expenses of the year, but was to be paid in the middle of the next fiscal year; that the purchase price of the pen-stocks was not embraced or intended to be embraced among the liabilities and expenses contemplated by the general levy, or by the appropriations made out of the general fund for the year; that the resolution of October 1, 1894, above recited, and all proceedings thereunder, were ultra viresj and that, as the alleged contract is not susceptible of apportionment, it is wholly void, and the defendant is not liable thereupon.
“(2) That the acts of the officers and members of the common council in regard to the reception and placing of the penstocks did not constitute an acceptance or use of the goods by the defendant.
“ (3) That the village of Buchanan never accepted nor used the said penstocks, and is therefore not estopped from contesting the claim of the plaintiff.
‘ ‘ (4) That the penstocks having been placed on property notin the ownership, possession, or control of the defendant, and a spot quite remote from the location of any existing waterworks, and the uses to which such penstocks were naturally to be applied being foreign to any needs or uses of any existing waterworks, and such facts having been known by the plaintiff, there was never any actual delivery to the defendant of the goods in question.
“(5) That no contract to pay for the goods on a quantum meruit can be implied in. this case.
“(6) That the plaintiff is not entitled to recover; and judgment will therefore be rendered in favor of the defendant, and against plaintiff, for costs of suit to be taxed.”

Counsel for plaintiff requested the court to find that the proposition made by Left el & Co. was accepted by the village, and by such acceptance became a legal and binding contract upon both parties; that the plaintiff fulfilled its part of the contract, and the village had accepted the property delivered, and that the contract was within its power to make; that the plaintiff was entitled to recover the contract price. These findings were refused. Plaintiff took exception to such refusal, as well as to the findings of law made by the court. Plaintiff also excepted to the eleventh finding of fact, on the ground that there was no evidence to support it.

The general law, under which the defendant village was reincorporated, provides:

“The council of any village subject to the provisions of this act shall have authority to raise by general tax upon all the real and personal property liable to taxation in said village (exclusive of taxes for highway and street purposes) such sum, not exceeding in any one year one and one-fourth of one per cent; of the assessed value of such property, as they shall deem necessary,” etc. 1 How. Stat. § 2923.

Section 2959 of the statute provides:

“The council may purchase and provide suitable fire engines and apparatus for the extinguishment of fires; and may sink wells and construct cisterns and reservoirs in the streets, public grounds, and other suitable places in the village, and make all necessary provisions for a convenient supply of water for the use of the department.”

From these provisions of the charter it is apparent that the common council had the power to purchase the pen-stocks in question, provided that the purchase price did not exceed the amount which the council was authorized to raise without the vote of the taxpayers. This charter, which was passed in 1879, was amended in 1887 (3 How. Stat. § 2973), which amendment provides that—

“After waterworks have been constructed in a village by virtue of any of the provisions of any law of this State, the council may then raise and expend in making repairs or alterations, or in extending such works, such. sum as it may see fit, without submitting the question to the electors of the village: Provided, the sum to be so expended in any one year shall not exceed the sum of one-half of one per cent, of the assessed valuation of the village: And provided, also, the sum to be raised for such purpose shall be included in the amount which, by the provisions of section 1, chapter 9, of (this act, the council is authorized to'raise.”

That section provides, as we have seen, that the council may raise, exclusive of taxes for highways and streets, in any one year one and one-fourth of 1 per cent, of the assessed valuation, etc.

It is conceded that the village, at the time this contract was made, had already in operation a system of waterworks operated by steam power. From the findings of the court below, it appears that the assessed valuation of the village in the year 1894 was $562,000, and in the year 1895 $565,000. The contract price for the penstocks was $843.10. This does not exceed the one-half of 1 per cent, of the assessed valuation for each year. In the year 1894 there was ordered to be raised by the council for the general fund 12 mills on the dollar, which would be $6,744; in the year 1895, 12-J- mills on the dollar, or $7,062.50. Thus, it appears that the council brought itself within both the provisos contained in section 2973, 3 How. Stat., above quoted. The only appropriation which is shown of this fund is the resolution to raise the amounts, in which 12 mills on the dollar was appropriated in 1894 to the general fund, and in the year 1895 12& mills on the dollar to the same fund. If, therefore, the council had purchased these goods to be paid for within the same fiscal year in which they were bought, the council would have had the right to pay for them out of the general fund.

But it is contended by counsel for defendant that, inasmuch as the council of the village purchased on one year’s time, this would run the payment into the succeeding year, and it would therefore be void, because the council could not anticipate the fund- in advance of the year in which the contract was made. In Putnam v. City of Grand Rapids, 58 Mich. 416, it appears that the city-entered into a contract with an electric light company whereby it was to have 25 towers put up in various places, and electric lights furnished for five years in the times and manner specified, at $26,000 a year, at the end of which period all the fixed property was to belong to the city, if desired. A bill was filed to restrain the council from carrying out this contract. The bill was sustained and the relief granted. But it was said that the decision was placed entirely on the restrictions of the charter, and not upon any general incapacity had the charter been silent; and that—

“In the face of the charter provision, the array of authorities allowing time contracts by cities, which is certainly very respectable, does not apply.”

We must therefore look to the village act to determine whether any restrictions are there imposed upon the village council to enter into this contract, under which the payments were to be made in the future. The only authority in the council to make a contract for the waterworks system is contained in section 2973, 3 How. Stat., above quoted. This section does not authorize the council to incur an indebtedness to be paid in a future year, but provides that it may raise such amount in any one year. Section 2957, 1 How. Stat., provides that “no loans shall be made by the council, or by its authority, in any year, exceeding the amounts prescribed in this act.” . But it is contended by counsel for plaintiff that it was held in Spitzer v. Village of Blanchard, 82 Mich. 242, that a village organized under this act could not incur an indebtedness to exceed 1£ per cent, of its assessed valuation, and that this statute was not construed as a restriction upon the village to incur an indebtedness to that extent. In that case the question was not presented whether the village had the power to incur an indebtedness to be paid in the future, but the question there considered was whether the bonds sued upon were in an amount beyond the power of the council to issue. It was held that the council exceeded its power in issuing them. The question here presented was not squarely in issue there. We think that section 2957 must be considered as a restriction upon the council to enter into a contract payable in the future. Newaygo County Manfg. Co. v. Echtinaw, 81 Mich. 416. If plaintiff’s contention could be sustained, then the council could enter into a contract for waterworks repairs to the amount of one-half of 1 per cent, in any one year, and at the same time incur an indebtedness payable from year to year, extending over several years in like manner. While the council may readily estimate the amount it may raise for waterworks during any current year, so that the total amount raised for general purposes shall not exceed li- per cent, of the assessed valuation, yet it is apparent that no estimate could be made for the following years, so that the total amount should not exceed that sum.

But counsel for plaintiff contend that, the amount being within the power of the council to raise in the year that the contract was made, the contract is not void by reason of the fact that the payment under it was to be made the following year, for it must be presumed that the council would raise the fund, and set it aside to meet the payment when due. It appears, however, that the penstocks were not to be paid for that year, but the village was to have one year’s time, with interest at 5 per cent. It cannot be presumed, therefore, that the council intended to raise the amount the year the contract was made, but intended it as a time contract, the fund to meet it not to be raised until the succeeding year. We think the council has no such power under the charter.

The judgment is affirmed.

The other Justices concurred.


text:
    AUDITOR GENERAL v. DULUTH, SOUTH SHORE & ATLANTIC RAILWAY CO.
    1. Taxes — Highway and School — Township Meeting — Submission to Electors.
    Unless propositions to raise money for highway and school purposes were submitted to the electors at their annual township meeting, they cannot be said to have neglected or refused to vote the same, within 3 How. Stat. § 1328, providing that, in case the electors present at any annual township meeting shall neglect or refuse to vote any highway taxes, the township board may order the same to be levied, and Act No. 176, Pub. Acts 1891, § 9, conferring like authority upon the board of education, under such circumstances, with reference to school taxes.
    2. Same — Statutory Provision — Impossibility op Compliance.
    The fact that a township is divided into election districts, and that one of the polling places is nine miles distant from the one at which, under 1 How. Stat. § 131, the township meeting is to be held, does not render it legally impossible for the electors to attend such meeting.
    3. Same — General Levy — Exemptions—Invalidity.
    Where the township board, in levying highway taxes upon the property of the township, exempts the property in a particular village in the township, the levy is void.
    4. Same — Tax Law — Curative Provision — Jurisdictional Depeots.
    The curative provision of the tax law of 1893 (Act No. 306, § 99) does not relieve against defects which go to the jurisdiction of the body authorizing the levy. So held, where a board of education and a township board assumed to determine the amounts to be raised for school and highway taxes, without the questions’ having been submitted to the electors at the annual meeting, and their having neglected or refused to act.
    Appeal from Baraga; Hubbell, J.
    Submitted October 8, 1897.
    Decided March 15, 1898.

      Petition by Stanley W. Turner, auditor general, for tbe sale of lands delinquent for the taxes of 1894. Prom 'a decree setting aside certain taxes upon objections filed by the Duluth, South Shore & Atlantic Railway Company and others, petitioner appeals.
    Affirmed.

      William K. Haviland, Prosecuting Attorney (Philip R. McKernan, of counsel), for petitioner.

      M. J. Sherwood, for defendants.
   Long, J.

The petition of the auditor general came on for hearing at the- October term, 1896, in the Baraga circuit court, in chancery, for the sale of lands delinquent for the taxes of the year 1894. The respondents had paid all the taxes in the township of L’Anse, except the highway and school taxes, and, as to them, they contended that they were void. The court below held them void. The auditor general appeals.

As to the highway taxes, it is contended that they were not authorized by the electors of the township, the question of raising such taxes not having been submitted to them. It appears that the question was not submitted to the electors. The records of the township show that, at a meeting of the township board, the following preamble and resolution were passed:

Whereas, the electors present at the annual township meeting of the township of L’Anse, held therein on the first Monday of April, 1894, neglected to vote a money tax upon the property of said township for highway purposes : Resolved, that a tax of fifty cents upon each and every one hundred dollars of the assessed valuation of the township of L’Anse for the year 1894, except that on the property in the village of L’Anse, be, and the same is hereby, levied on the value of such property.”

This resolution was unanimously carried.

Section 1328, 3 How. Stat., provides:

“In case the electors present at any annual township meeting shall neglect or refuse to vote any rate of highway labor to be assessed, as by the first subdivision of the last preceding section provided, the commissioner, in making his assessment, may assess not exceeding one-half day’s labor upon each one hundred dollars of valuation; and in case such electors shall neglect or refuse to vote a money tax, as by the second subdivision of the preceding section provided, the township board may order to be levied such sum, within the limit herein above provided, as such board may deem necessary for the improvement of roads and bridges.”

It has been held, under this statute, that the power of the board to raise money for these purposes depends upon the neglect or refusal of the voters to do so, and, unless the proposition to raise said moneys has been submitted to the electors, they cannot be said to have neglected or refused to vote the same. Tillotson v. Webber, 96 Mich. 154, and cases there cited.

But this highway tax is void for another reason. The order made by the township board was that the highway tax should be spread upon all the property of the township, except that in the village of L’Anse. The township board had no power to exempt that property from the tax, even if'the board had the power to raise it. 3 How. Stat. chap. 29; Ryerson v. Township of Laketon, 52 Mich. 509. For this reason alone the court below very properly held the highway tax void.

The school district comprises the whole of the township of L’Anse, and was organized under Act No. 176, Pub. Acts 1891. Section 9 of that act provides that the qualified electors at any annual township meeting shall determine the amount of money to be raised by tax for all school purposes for the ensuing year; but it is provided that, “in case the electors at any annual township meeting shall neglect or refuse to determine the amount to be raised as aforesaid, then the board of education shall determine the same at any regular meeting thereof,” etc. It will be seen that the wording of this statute is identical with the general law for raising highway money taxes. 3 How. Stat. § 1328. It appears that this question was not submitted to the electors at the annual township meeting, but the board of education passed a resolution to raise the sum of $7,000 by taxation. The same rule must be applied as in matters of highway taxes, and the case of Tillotson v. Webber, supra, and the cases there cited, are decisive of it.

The claim made by petitioner that this is cured by the provisions of section 99, Act No. 206, Pub. Acts 1893, cannot be sustained; and the case is not ruled by Auditor General v. Hutchinson, 113 Mich. 245. In the present case the question is one of power in the board to act. There can be no taxes raised without express authority of law, and the mode pointed out by the statute must be followed. • The board of education has no authority to act in raising money until the question has first been submitted to the electors, and they refuse or neglect to raise the tax. Then the board of education may act. It is a question going to the jurisdiction of the board. The board, under the facts here shown, acted without authority.

It is contended, further, that the township of L’Anse being divided into two election districts, and the places of holding the elections being some nine miles apart, it would be impossible for the electors to pass upon this question. We do not see any such difficulty in the case. Section 131, 1 How. Stat., provides that—

“The electors of each election district shall meet at one o’clock in the afternoon at the polling place of district numbered one, unless some other place of meeting be designated by the hoard of inspectors of district numbered one, which place shall be announced by the clerk of the board of each district to the electors present, and there transact such business as is usually transacted at township meetings, by viva voce vote.”

We think the court below was not in error in holding these taxes void. The decree must be affirmed, with costs in favor of defendants, for the payment of which the auditor general will draw his warrant upon the state treasurer.

The other Justices concurred.


author: Moore, J.

text:
    BEDIER v. FULLER.
    1. Fraud — Actions—Assumpsit.
    One who, having been induced by fraudulent representations to sell property for less than its real value, under the advice of counsel, and with full knowledge of the facts, makes a sale of a purchase-money mortgage received by him, thereby affirming the contract, cannot afterwards maintain an action of assumpsit, based upon an implied contract, to recover the avails of the property in the hands of the grantee.
    2. Same — Statutes—Pending Litigation.
    Act No. 195, Pub. Acts 1897, permitting an action of assumpsit in all cases where, by the fraudulent representations or conduct of any person, an injury has been produced for which an action on the case for fraud or deceit may be brought, does not affect litigation pending on appeal when the act took effect.
    Error to Wayne; Hosmer, J.
    Submitted October 13, 1897.
    Decided March 15, 1898.

      Assumpsit by Josephine Bedier against Jay Fuller, Hiram D. Willmarth, and Dennis J. Reaume for money had and received. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Fred A. Baker, for appellant.

      John D. Conely, for appellees Fuller and Willmarth.

      Levi T. Griffin, for appellee Reaume.
   Moore, J.

This cause was commenced by attachment. The declaration is in assumpsit. It contains all the common counts, and, in addition thereto, a special count. A demurrer was interposed to the special count, and was sustained, and was afterwards affirmed in this court'. To the other counts, the plea of general issue was interposed, with a notice that the matters declared upon were res judicata. The attorney for the plaintiff made an opening statement of what he expected to prove. Upon the conclusion of his statement,, upon motion of defendants, the court directed a verdict in favor of defendants.

The parties to this action have been in this court twice before. The first time the plaintiff filed a bill in chancery, to have a deed set aside upon the ground of fraud and misrepresentation. Her bill was dismissed, and, upon appeal, the decree was affirmed. The case is Bedier v. Reaume, 95 Mich. 518. After the chancery case was ended, this proceeding was begun. As already stated, defendants demurred to the special count in assumpsit. The demurrer was sustained, and the case in this court is Bedier v. Fuller, 106 Mich. 343. In the last-named case there is a full statement of what was contained in the special count, and a reference to the two cases will make it unnecessary to make a very long statement here in order to understand the questions involved.

In addition to what is contained in the special count, counsel offered to prove, in substance, that in April, 1891, a brother of the plaintiff filed a bill to partition the real estate, and that such proceedings were had thereunder that a portion of the real estate was sold, and there was left in the hands of the commissioner, to be paid to the plaintiff or to Mr.' Beaume, $3,500.89. He also stated that proceedings were had to partition the farm property, which resulted in defendant Beaume obtaining title in fee simple, subject to the right of dower of the widow, to 83 acres of land, in the place of an undivided one-sixth interest in 400 acres, which he had before the partition was made. No appeal was made from the order directing the payment of the $3,500.89 or from the partition proceedings. It is now the claim of the plaintiff that she can waive the tort, and recover in assumpsit, not only the $3,500.89 paid to Beaume, as before stated, and a sum of about $360 received for rent, but also for the value of the 83 acres, which was fixed by the commissioners in the partition proceedings at $4,087.40. It is the claim of the plaintiff that when Reanme exchanged his undivided interest in the 400 acres of land for the title in fee, subject to the dower right of the widow, to 82 acres of land, which was valued at a fixed sum, it was equivalent to his having received so much money, and therefore assumpsit could be maintained for all of these items.

It is doubtless true that, when one who has been led to-mate a contract by fraudulent representations discovers the fraud, he may affirm or disaffirm it; but he cannot affirm it in part and disaffirm it in part. If he affirms it, and asserts the fraud, he could doubtless retain what he had received, and, in the proper action, recover for the damages sustained by reason of the fraud; but it would be anomalous to say that he can affirm the contract, and at the same-time recover as for an implied promise in assumpsit. Plaintiff having affirmed the contract, it cannot be said that the property transferred by her continued to be hers; therefore no implied promise could be presumed to pay the avails of the property upon the theory that the money which was received was hers. We think the case is controlled by Bedier v. Fuller, 106 Mich. 342.

It is suggested by counsel that Act No. 195, Pub. Acts 1897, if properly construed, authorizes the plaintiff to maintain this action. This act did not become operative until long after this case was decided in the court below. There is nothing in the act to indicate that it was intended to affect pending litigation, so that there is no necessity for giving the act a construction, further than to say that its provisions do not apply to this case, which was commenced long before, the act became a law.

Judgment is affirmed.

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


author: Montgomery, J.

text:
    SCHILLER COMMANDERY NO. 1, UNITED FRIENDS OF MICHIGAN, v. JAENNICHEN.
    1. Voluntary Assooiations — Withdrawal of Members — Right to Property.
    The withdrawal of two-thirds of the members of a voluntary association does not change its identity, and the remaining members are entitled to the property.
    2. Same — Incorporation.
    The provision of Act No. 119, Pub. Acts 1893, that voluntary associations may become bodies corporate if two-thirds of the members present and voting at any regular meeting shall vote in favor of such incorporation, does not operate, so far as it relates to associations formed before and existing at the time of the enactment, to vest in the corporation funds belonging to the association, where the action to incorporate was not acquiesced in by all the members of the association.
    Error to Wayne; Hosmer, J.
    Submitted October 13, 1897.
    Decided March. 15, 1898.

      Assumpsit by the Schiller Commandery No. 1, United Friends of Michigan, against Louis Jaennichen, John Groll, and Catherine Thomas for money had and received. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.
    The United Friends of Michigan is an incorporated fraternal beneficiary association, and is within the provisions of Act No. 119 of the Public Acts of 1893. The plaintiff is a subordinate body of the United Friends of Michigan, and as such attempted to incorporate shortly before the commencement of this suit. Sections 11-13 of the act referred to provide for the incorporation of such subordinate bodies. Before the incorporation of the plaintiff, a voluntary association known as “Schiller Commandery No. 1” had accumulated a general fund of $889.76, and this money was in the bank in the name of its trustees on the 1st day of June, 1896. At that time the plaintiff had about 670 members, but, in July following, more than 400 of these members withdrew from the organization, and among them the defendants in this suit. These defendants were at that time the trustees of Schiller Commandery No. 1, and as such had control of the fund involved in this suit. They have kept it ever since, and, after demand, have refused to turn it over to the plaintiff. After the secession, those who remained members in good standing of the Schiller Commandery agreed to become incorporated at a meeting of the association at which 150 out of 180 members who had adhered to the original association, and who were then in good standing, were present, the action being unanimous. It is said in defendants’ brief that it does not appear upon what notice the meeting was called. This is true, but the fair inference is that the meeting was a regular one. After the incorporation this shit was brought. No evidence was offered or given on the part of the defendants as an excuse for or explanation of the secession or the withholding of the money. The bill of exceptions shows that the 400 who withdrew from the commandery did not pay any more dues, and set np for themselves, and claimed this fund because they were the large majority of the voluntary association ‘Schiller Commandery No. 1, United Friends of Michigan.

      John G. Hawley, for appellant.

      William E. Henze (Otto Kir diner, of counsel), for appellees.
   Montgomery, J.

(after stating the facts). The withdrawal of the 400 members did not change the identity of the association. The remaining members represented the society, and were entitled to retain the property. Sommers v. Reynolds, 103 Mich. 307; 1 Bac. Ben. Soc. § 38a. The Schiller Commandery No. 1, United Friends of Michigan, was, under the facts stated in the record, clearly entitled to the fund on hand at the time of the withdrawal of the 400.

The question is whether the incorporated body is legally identical with the previously-existing voluntary association. The incorporation of the body appears to have been made in accordance with the provisions of Act No. 119 of the Public Acts of 1893, which provides that the voluntary association may become a body corporate if two-thirds of the members present and voting at any regular meeting shall vote in favor of such incorporation. The statute further provides that, when the requirements named in the statute are complied with, such subordinate body shall be a body corporate by the name expressed in the articles, and by that name be a person in law capable of suing and being sued in the courts, and taking and holding property of every kind, the same as natural'persons. The question for decision is whether this act, so far as it relates to associations formed before and existing at the time of its enactment, is operative to vest in the corporation funds belonging to the previously-existing association, where, as in this case, the action to incorporate was not unanimous. We think this question is ruled in the negative by Mason v. Finch, 28 Mich. 282. It should be noted that the record fails to show that the remaining members of the association, the 30 who did not participate in the attempt to incorporate, acquiesced in the action taken. If such affirmative showing had been made, quite a different question would have been presented.

The judgment will be affirmed.

The other Justices concurred.


text:
    PEOPLE v. DETROIT CITIZENS’ STREET-RAILWAY CO.
    1. Municipal Corporations — Penal Ordinances— Courts.
    The authority to prescribe penalties for violations of city ordinances, conferred upon the common council of Detroit by section 257 of the charter of 1893, is not limited to such ordinances as are adopted under the police power of the council, but includes those that may be enacted by virtue of contract relations existing between the city and the owner of a public franchise, and, under section 249, the recorder’s court of said city has jurisdiction over a prosecution for a violation of any ordinance of the city.
    2 Street Railways — Car Service — Ordinances—Construction.
    By ordinance passed m 1862, when street railroading was in its experimental stage, the common council of a city of 50,000 inhabitants granted to a street-railway company a 30-year franchise. Among other provisions, the ordinance prescribed that cars should be drawn by animals only, at a speed not exceeding six miles per hour, and should be run as often as public convenience should require and the council should direct, provided that the council should not require the running of cars oftener than once in 20 minutes during 14 hours in the day for part of the year, and 12 hours in the day for the rest of the year. In 1879, the city having in the meantime doubled in population, a new ordinance was adopted, and accepted by the company, extending the franchise for 30 years, and providing merely, with reference to car service, that the cars on all lines should be operated “as the public convenience may require and the common council order.” It was further provided that all ordinances or parts of ordinances not in conflict therewith should continue in force. Held, that the limitation upon the authority of the council with respect to the service of cars, contained in the earlier ordinance, was abrogated by the later one.
    3. Same — Public) Officers — Presumption of Good Faith.
    It will not be presumed that the members of a city council were actuated by improper motives in the passage of an ordinance prescribing the frequency with which street cars should be run, but, on the contrary, it will be presumed that such action was taken in the exercise of a judgment based upon an acquaintance with all the facts; and such judgment, as embodied in the ordinance, will control the courts, upon inquiry as to the reasonableness of such ordinance, unless it clearly appears that it was improperly exercised.

      4. Same — Reasonableness of Ordinance — Evidence.
    A city ordinance requiring a street-railway company to run its cars every six minutes on a specified street will not be held Unreasonable, where no trial has been made of 'its provisions, upon a showing merely that the average number of passengers to a car, under the existing 12-minute service, is between seven and eight only.

      Certiorari to recorder’s court of Detroit; Chapin, J.
    Submitted October 13, 1897.
    Decided March 15, 1898.
    The Detroit Citizens’ Street-Railway Company, a corporation, and Jere C. Hutchins, its vice-president and treasurer, were convicted of violating an ordinance of the city of Detroit respecting the service of cars.
    Conviction affirmed.

      Brenncm, Donnelly & Van De Mark and Bernard B. Selling, for appellants.

      C. D. Joslyn, for the people.
   Moore, J.

Mr. Hutchins is vice-president and treasurer of the Detroit Citizens’ Street-Railway Company, a corporation operating a line of street railways in the city of Detroit'. In February, 1897, the common council of the city adopted an ordinance requiring the street-railway company to “provide sufficient cars upon Gratiot avenue so that a six-minute service shall be given upon said avenue between Mack and Sheridan avenues between the hours of 5:30 a. m. and 10 p. m.” Section 3 of the ordinance reads as follows:

“Sec. 3. Any violation or failure to comply with the provisions and requirements of this ordinance shall be punished by a fine of not to exceed $300; and said fine, when so imposed, may be recovered from the person or corporation so convicted in an action of law, in the proper court.”

The company did not comply with the terms of this ordinance. A complaint was made in the recorder’s court for the city of Detroit against Mr. Hutchins, as vice-president and treasurer, and the railway company. They were convicted under the direction of the court, and a writ of certiorari has been issued to review the proceeding here.

To discuss the questions involved intelligently, it is necessary to make quite a complete statement of what is shown in the record. In 1862 a number of gentlemen proposed to organize a corporation under the provisions of “An act to provide for the construction of train railways” (Act No. 148, Laws 1855). The common council passed an ordinance, which was approved November 24, 1862, granting to them a franchise to operate a railway in certain streets in the city of Detroit'. The ordinance contained these provisions:

“Sec. 7. The cars to be used on said railways shall be drawn by animals only, at a speed not exceeding the rate of six miles per hour, and shall be run as often as public convenience shall require and the common council shall prescribe: Provided always, that said council will not require them to run regular cars of tener than once in twenty minutes during fourteen hours every day from the fifteenth day of April to the fifteenth day of October, and twelve hours every day from the fifteenth day of October to the fifteenth day of April. * * *
“Sec. 19. It is hereby reserved to the common coun-' cil of the city of Detroit the right to make such further rules, orders, or regulations as may from time to time be deemed necessary to protect the interest, safety, welfare, or accommodation of the public in relation to said railways. ,
“Sec. 20. The powers and privileges conferred by the provisions of this ordinance shall be limited to thirty years from and after the date of its passage.”

In November, 1879, an ordinance was adopted by the council containing, among others, the following provisions:

“Sec. 4. On the first of July and January in each half year from the first of January, 1880, the Detroit City Railway Company shall pay to the treasurer of the city of Detroit a tax of one per cent, during the period of this ordinance, on the gross receipts of the several lines of street railway operated -by said company. * * *, The foregoing special tax and undertaking as to paving shall be in lieu of license and other taxes and charges for paving under existing ordinances. And it is hereby stipulated and agreed that the cars on all lines subject to this ordinance shall be operated as the public convenience may require and the common council order.
“Sec. 5. The power's and privileges conferred and obligations imposed on the Detroit City Railway Company by the ordinance passed November 24, 1862, and the amendments thereto, are hereby extended and limited to thirty years from this date. * * *
“Sec. 6. This ordinance shall take immediate effect when written acceptance of the terms thereof is filed in the office of the city clerk of Detroit by the Detroit City Railway Company, the Detroit & Grand Trunk Junction Street-Railway Company, and the Central Market, Cass Avenue & Third Street Railway Company, or their successors; and from that date all ordinances, or parts of ordinances, in conflict with the provisions hereof, shall stand repealed; and all ordinances and parts of ordinances not in conflict herewith are hereby affirmed and continued in force.”

It is by virtue of the ordinances mentioned that the street-railway company is operating its line of road today.

On the trial it was shown on the part of the railway that the Michigan-Gratiot line of its system runs from the end of Michigan avenue, across the city, out Gratiot avenue. Upon this track, from Trumbull avenue to Chene street, the Trumbull-Chene street line also runs; so that from the intersection of Trumbull and Michigan avenues to the intersection of Chene street and Gratiot avenue there is a double service on the line. On both the Trumbull-Chene and the Michigan-Gratiot lines is a six-minute service, so that from Trumbull avenue to Chene street the cars run .every three minutes. After the Chene-street cars leave the Gratiot-avenue track, from that point out there is again a six-minute service on the Michigan-Gratiot line, which six-minute service continues as far as Mack avenue. From that point, one-half of the cars of the Gratiotavenue line go out Mack avenue, and the other half continue out Gratiot avenue as far as the loop, which is a little beyond Sheridan avenue. This gives a 12-minute service on Mack avenue, and also a 12-minute service on Gratiot avenue from Mack to Sheridan avenues. From 5:30 to 7 a. m., and from 5:15 to 6:15 p. m., cars are run every six minutes on Gratiot avenue from Mack to Sheridan, and cars from Mt. Clemens, run by the Rapid Railway, come down and go up Gratiot avenue every 30 minutes. It is the claim of the railway company that there is not sufficient travel beyond the junction of Mack and Gratiot avenues to make it necessary to put on cars more frequently than they now run them. They also claim that to give the service required by the ordinance of 1897 would involve ■ an annual expenditure of about $50,000. It is the claim of the people that, in view of the settled condition of that part of Detroit beyond the junction of Mack and Gratiot avenues, there is need of a six-minute service to comply with the reasonable demands of the public; that the six-minute service would not be nearly as expensive as claimed by the railway company; that some of the cars could be run out Mack avenue, and return only to Gratiot; and that, even if it was expensive, the cost would not be a reason why they should not comply with the ordinance. Proof was introduced on the part of the respondents to the effect that during a portion of March, after the ordinance went into effect, they caused the number of passengers carried by their cars on Gratiot avenue, at a point just beyond the junction with Mack avenue, to be counted, and the average was a trifle more than 7 persons to the car during the 12-minute' service, and 13 during the 6-minute service. To get this average, the car service both ways was included.

Counsel for respondents in their brief say:

“There are practically but three questions in this case: * * * (1) Has the common council of the City of Detroit the power, under its police regulations, to pass the ordinance upon which the complaint is based ? (2) Has the common council the power to pass this ordinance under its contract with the railway company ? (3) Is the ordinance reasonable ? ”

In our view of the law, it will not be necessary to discuss at length the first question. It is claimed that, unless the ordinance is passed by virtue of the police power of the council, the recorder’s court has no jurisdiction. It may be well to say that if, under the contract relations existing between the city and the company, the former had the right to pass the ordinance of 1897, the common council had a right to provide a penalty for its violation. This right is expressly conferred by section 257 of the charter (Charter of Detroit, 1893). Section 249 confers upon the recorder’s court authority to try persons charged with violation of the ordinances of the city.

Passing to the second question, it is said by counsel that, under the franchise held by the railway company, the city had no right to pass the ordinance of 1897. It is said that the ordinances of 1862 and 1879 constitute a contract between the city.and the street-railway company, and that “the ordinance of 1879 was not a new grant or a new consent; it was confessedly an extension of the old grant of consent, upon the terms and conditions of the old consent, except in so far as those terms were readjusted,”— citing Detroit Citizens’ St. R. Co. v. City of Detroit, 12 C. C. A. 365 (26 L. R. A. 667). It is now urged that as the city agreed, by the provisions of section 7 of the ordinance of 1862, not to require the company “to run regular cars oftener than once in twenty minutes during fourteen hours every day from the fifteenth day of April to the fifteenth day of October, and twelve hours every day from the fifteenth day of October to the fifteenth day of April,” by reason of its contract with the company the city cannot now require the company to run cars oftener than once in twenty minutes. All of these provisions in the various ordinances, so far as they appear in the record, relating to the frequency with which cars shall be run, the rate of speed, and the motive power allowed, have already been quoted.

In construing these ordinances, it may be worth while to inquire into the situation when they were passed. Detroit, in 1862, was a city of about 50,000 people. Its residents all lived within a comparatively short distance of the business center. A street railway was comparatively unknown. It was yet in an experimental stage. No more practical method of furnishing motive power was known than the use of animals. It was believed that a speed not exceeding 6 miles an hour, and cars run not more frequently than 3 times an hour for 14 hours in the day part of the year, and 12 hours a day for the remainder of the year, would answer the convenience and demands of those who were likely to be patrons of the road. The franchise conferred by the ordinance of 1862 would end by its terms in 1892. In 1879 the population of the city was upwards of 100,000 people, and the city was growing rapidly. Street-railway systems were no longer experiments. A franchise like that conferred by the ordinance of 1879, in a city like Detroit, was known to be an exceedingly valuable thing. The ordinance of 1879, by its terms, gave the company a franchise for 30 years. Improved methods of motive power were coming into vogue. Portions of the residence part of the city were much farther from the business center than in 1862. The public demanded quicker and more frequent service then than it had earlier. Is it likely that, under such circumstances, the council would confer a franchise for 30 years over the principal streets of a great and growing city, with a limitation that the city should not require the running of cars oftener than 3 times an hour, and not at all for 10 hours of the day for part of the year, and 12 hours a day for the remaining portion of the year ? On the other hand, is it probable that the railway' company would be willing to accept an ordinance running for 30 years which limited it to the use of animal power in the transportation of its cars, and to a speed of 6 miles an hour? We think this contention is unreasonable, and that the ordinance of 1879 was given and accepted with the understanding of all parties to it that the provision in section 4 “that the cars on all lines subject to this ordinance shall be operated as the public convenience may require and the common council order” should control.

Is the ordinance reasonable ? Who shall determine ? It is evident that, when the provisions of the ordinance ceased to direct how frequently the cars should run, the parties to the ordinance understood that, in the first instance, the common council should decide. It is urged that the interests of the company and the public are identical, and that the frequency with which the cars shall be run can safely be left to the company. It is sufficient reply to this suggestion to say that the ordinance does not so provide. It is said, in substance, that, if the power is lodged with the common council, the chances are that the public interests would not be subserved, but private spites and hatreds gratified, and that a corrupt common council may sap the life-blood of industries in cities unless the corporations “see” the members of the council. We cannot presume that members of a common council are actuated by improper motives, or that their actions towards corporations are actuated by improper motives. But, if this were conceded, there would be two remedies: First. The aid of the criminal law should be invoked to punish alike the members of the council whose official acts are influenced by corrupt means, and the corporation which makes use of the corrupt methods to improperly influence official action. The second remedy is for the people to elect honest members to the common council. It may be assumed, in the very nature of things, that the members of the common council are acquainted with the city, the number and direction of the streets, the density of its population, the need of quick transportation, and how well the need is supplied. They ought to be men, too, who would stand impartially between the people whom they represent and the corporations to whom franchises have been gránted, and would respect the rights of both. The common council acts as the public and municipal agent, and, in the passage of an ordinance affecting subjects of municipal administration, it should and will be presumed that the council acted in the exercise of a judgment upon the facts, and their judgment must control until it has been shown that it has been improperly exercised. Mayor, etc., of New York v. Dry-Dock, etc., R. Co., 133 N. Y. 104 (28 Am. St. Rep. 609). We have no doubt, if it was clearly made to appear that the action of the council was capricious and arbitrary, or that the public convenience did not require the provisions contained in the ordinance, that the courts might intervene. It is not made to appear that the action of the common council is unreasonable, especially if stub trains are allowed to be run from the junction of Gratiot and Mack avenues, out Mack avenue, which should be allowed if the company so desires. Until the company has given the provisions of the ordinance a trial, no one can say that they are unreasonable. This the company should be required to do.

The judgment of the court is affirmed, and the case is remanded for further proceedings.

The other Justices concurred.


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    McNAUGHTON v. EVERT.
    1. Continuance — Discretion of Court.
    The matter of the continuance of causes is one resting in the sound discretion of the court, which is not reviewable except where there is the clearest evidence of willful or wanton disregard of justice or a mistake of law.
    2. Same — Review on Certiorari.

      Certiorari will not lie, as a matter of right, to review the action of a circuit court commissioner in denying an application for a continuance in summary proceedings, since complete justice may be obtained by an appeal and a trial on the merits.
    3. Same — Absent Witness — Materiality of Testimony.
    The fact that an application for a continuance is supported by an affidavit setting forth the serious illness of a witness whose testimony is alleged to be material does not render its denial an abuse of discretion, where two continuances have already been granted the affiant, and no showing is made by him, aside from his statement, that ■ the testimony of the absent witness is material, and the circumstances surrounding the case are such as to cast doubt upon the good faith of the application.
    Error to Muskegon; Russell, J.
    Submitted January 4, 1898.
    Decided March 15, 1898.
    Summary proceedings by Edward J. McNaughton against John Evert, before a circuit court commissioner, to recover the possession of land. There was a judgment for complainant, and defendant removed the cause by certiorari to the circuit court, where the judgment was affirmed. Defendant brings error.
    Affirmed.

      Turner & Turner, for appellant.

      Stephen H. Clink, for appellee.
   Hooker, J.

Summary proceedings to recover possession of land were brought against the defendant before a circuit court commissioner. The return day was upon April 20th. On that day a motion to adjourn was made by the defendant, and the cause was adjourned until April 24th. At this time, counsel for the defendant assured the counsel for the complainant that his witness would not be able to be present on April 24th, as he could not possibly recover his health sufficiently. On April 24th the motion was renewed, and affidavits of the defendant, who was the son, and Caroline Evert, who was the wife, of the alleged sick witness, were read, stating that he was so sick that neither could leave his bedside, except as defendant might find it necessary to go for the doctor, who lived in Muskegon, although the affiant was in Muskegon on urgent business that morning. A counter affidavit was filed showing that both defendant and Caroline Evert were in. Muskegon that morning. The commissioner adjourned the case for one week, against the protest of defendant’s counsel, who said that he should have to ask for another adjournment, as his witness would not be well enough to be present. Counsel for the complainant replied that he would take the risk of that. On May 1st the motion was renewed, supported by affidavits of the defendant and the attending physician, both saying that Peter Evert, the witness, was better, but, in their opinion, not physically able to appear or have his deposition taken, but they thought he might have a deposition taken in a short time. The commissioner denied the motion, and the defendant’s counsel abandoned the case, whereupon a trial was had, and a judgment against the defendant was rendered. The case was removed by certiorari to the circuit court upon the single question of the propriety of the denial of the adjournment, where the judgment was affirmed. It is now here on writ of error.

Although three motions to adjourn were made, there is nothing to show what might be proved by the witness, and the only evidence that what he might testify to is material is the statement of the defendant himself, under advice of counsel. In other courts it is usual to require an application for a second continuance to set up these facts. Indeed, up to'"this time there is nothing in the record to show the nature of the defense, if there be any; and, when the motion was denied, the defendant seems to have preferred to risk his entire interest upon the question of the adjournment than to go to trial with what evidence he had. Again, with the right to appeal and try the merits, he preferred to turn the complainant out of court. The adjournment of causes is always a matter of discretion. It is not usual to permit a counter showing; yet applications are frequently denied, and it is understood that the discretion is not reviewable, except where there is the clearest evidence of willful or wanton disregard of justice or a mistake of law. In my opinion, we have neither in this case, and apparently such was the view of the circuit judge.

There is another reason why this writ should be denied. It is a discretionary writ, and equitable in its nature. It will never be allowed to aid a wrong, or a technical practice, which justice does not demand, when there is a way open to try the merits. It would have been quite as easy, fully as cheap, and justice would have been done much more expeditiously, had an appeal been taken. By delaying this proceeding, the complainant would be prevented from putting in the spring crop, and the commissioner may well have taken that into consideration with other surrounding circumstances, which are not before us, in determining the good faith of the application and the truthfulness of the showing. At all events, we cannot presume that he did not.

I am of the opinion that the writ was improvidently issued, and the learned circuit judge was quité right in refusing relief under it. The complainant is entitled to costs of both courts.

The other Justices concurred.


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    VINING v. MILLAR.
    Chattel Mortgages — Delay in Filing — Rights of Intervening Creditors.
    An intervening creditor does not lose the right to avail himself of 2 How. Stat. § 6193, making a chattel mortgage, unaccompanied by change of possession, invalid as against a creditor whose claim accrues between the execution of the mortgage and the filing thereof, by taking a chattel mortgage to secure his claim under circumstances not entitling him to protection as a subsequent good-faith incumbrancer; nor is such right affected by his failure either to take possession by virtue of his mortgage, or to have the same properly filed.
    Error to Wayne; Erazer, J.
    Submitted January 4, 1898.
    Decided March 15, 1898.
    Replevin by James B. Yining and Donald Ferguson against Charles Millar and David W. Fox. From a judgment for plaintiffs, defendants bring error.
    Reversed.

      Moore & Moore, for appellants.

      F. L. Brooke (Thomas 8. Jerome, of counsel), for appellees.
   Moore, J.

This case has been here before, and is reported in 109 Mich. 205, where there is a full statement of the case as it was made in the first trial. Some new features are involved in this hearing, and, in addition to the statement of facts contained in the reported case, it is necessary to state further what occurred. On the second trial it was claimed by plaintiffs that when Yining fell sick,.and was unable to remain with the horses personally, Stilson was put in charge of the horses, and was to have the same authority that Yining, up to that time, had exercised. Construing the testimony in the most favorable light possible to the plaintiffs, there is nothing in the record to show that when Leroy gave his mortgage to the plaintiffs, or at any time afterwards, and before Leroy gave the mortgage to Millar, plaintiffs took possession as mortgagees, or that Vining or Stilson had any other possession than as representing George Leroy & Co., and for the purpose of accomplishing the purposes of the partnership. Nor is there any testimony that Leroy surrendered his right to possession as a partner'. Additional proof was given upon the question of the possession given to Millar and Briggs shortly after the mortgage to Millar was given. A judgment was rendered upon the verdict in favor of plaintiffs, from which judgment defendants appeal.

It will be observed that the mortgage to the plaintiffs was given October 11, 1892. It was not filed anywhere until July 17, 1893. June 30, 1893, Millar let'Leroy have $230, and between then and July 5th other sums, until $727.25 had been furnished him in all. The chattel mortgage was executed about midnight of June 30, 1893. It bears date July 5, 1893, and was recorded on that day. It is now claimed that, irrespective of the other questions in the case, a verdict should have been directed in favor of defendants, for the reason that plaintiffs’ mortgage, being unrecorded, was void as against the defendant Millar, who was a subsequent creditor as well as a subsequent mortgagee, and that this is in accord with 1 Revised Statutes of Ontario, 1887, chap. 125, § 4 (River Stave Co. v. Sill, 12 Ont. 557; Marthinson v. Patterson, 20 Ont. 125, 720), and also in accord with the laws of Michigan (2 How. Stat. § 6193; Boydson v. Goodrich, 49 Mich. 65; Root v. Harl, 62 Mich. 420).

In Crippen v. Fletcher, 56 Mich. 386, it was said:

“We have heretofore held that a chattel mortgage not seasonably filed is void, and not merely presumptively void, against creditors whose rights intervene between the making and filing. Haynes v. Leppig, 40 Mich. 607; Fearey v. Cummings, 41 Mich. 383; Hurd v. Brown, 37 Mich. 484; Cummings v. Fearey, 44 Mich. 39; Waite v. Mathews, 50 Mich. 392; Wallen v. Rossman, 45 Mich. 333. The law does not require previous proceedings to exhaust other remedies.”

The case of Dempsey v. Pforzheimer, 86 Mich. 652 (13 L. R. A. 388), is much in point. October 22, 1886, Harris & Karpp borrowed of Mr. Borgess, plaintiff’s decedent, $2,000, and gave him a chattel mortgage on- the same day, which was not recorded until December 26, 1887. Between the date of the giving and filing of this mortgage, the defendants, who were residents of New York city, sold Harris & Karpp goods, to secure the payment of which they took a chattel mortgage on December 30, 1887, which was filed the same day. Afterwards the defendants took possession of the stock under this mortgage. While they were in possession, demand was made on them for the stock by the holder of the first mortgage. They denied its validity, and sold the goods under their mortgage. Plaintiff brought trover for a conversón of the stock, and recovered a judgment. This court reversed that judgment, and in the opinion said:

“It is plain, under the rulings of this court, that the Borgess mortgage was void for want of filing as against the original indebtedness of Harris & Karpp to defendants, incurred while the mortgage was in existence and not filed, and for goods sold by defendants in the usual course of business, in ignorance of the existence of such mortgage. Fearey v. Cummings, 41 Mich. 383; Wallen v. Rossman, 45 Mich. 333; Waite v. Mathews, 50 Mich. 392; Talcott v. Crippen, 52 Mich. 633; Crippen v. Fletcher, 56 Mich. 386; Root v. Harl, 62 Mich. 420; Johnson v. Stellwagen, 67 Mich. 10; Brown v. Brabb, Id. 17 (11 Am. St. Rep. 549); Cutler v. Steele, 85 Mich. 627.
“If the defendants, before taking their mortgage, and after the filing of the Borgess mortgage, had proceeded against the property so mortgaged, and obtained by any process of law a lien upon it, or had they obtained judgment upon their claim, and issued execution, and levied on it, there can be no doubt but such lien or levy would have been good as against the Borgess mortgage. But it is claimed on behalf of plaintiff that, because defendants took a mortgage to secure the indebtedness to them after the Borgess mortgage was put on file, and therefore had notice of it, they cannot now claim the benefit of the rule adopted by this court as shown above, and that they have no standing under the statute upon which the rule is founded. It is contended that, to avail themselves of the statute, the defendants, at the time of seizing the goods in question, must have the standing either of ‘creditors of the mortgagors,’ or of ‘subsequent purchasers or mortgagees in good faith;’ that they cannot claim as subsequent mortgagees in good faith, because they took their mortgage with full notice of the Borgess mortgage, which had then been on record for four days; and that the benefit of the statute cannot be invoked in favor of creditors, except by those who have a lien by process of law upon the property in question. And it is argued that a mortgage lien will not avail, except, perhaps, in equity. We are cited to People’s Savings Bank v. Bates, 120 U. S. 560, and other cases, in support of this contention. But we can. see no difference between a lien obtained by process and one gotten by consent of the owner through a chattel mortgage. If the defendants were entitled, as they undoubtedly were, to obtain a lien upon this property by legal process, and to hold it to the amount of such lien against the mortgage of Borgess because the debt they were seeking to collect was contracted while this mortgage was withheld from record, we can see no reason in principle why they cannot hold the property under a lien obtained by chattel mortgage to secure the same indebtedness.”

The court then enters upon a full review of the cases, saying:

“It would seem to be settled in Root v. Harl, 62 Mich. 420, that, when an assignment is made by a debtor for the benefit of creditors, such creditors as are the defendants in this case can, upon the equity side of the court, attack the unrecorded mortgage, and obtain a preference over it, although they have no lien whatever upon the debtor’s property; and that they are not ‘general creditors’ in such a sense that they cannot attack the mortgage without first obtaining a lien, by legal process or otherwise. If this is so, why cannot such a creditor, who has obtained a mortgage lien upon the property, and possession under it, defend against a void mortgage, without resorting to legal process against the property ? And why should he be compelled to relinquish his possession under such ñiortgage lien, or pay the amount of a void mortgage? In my opinion, there is no equity or justice in the plaintiff's claim in this case, and no law under which he can enforce it.”

The opinion concludes :

“Under the facts as stipulated, the defendants were entitled to the possession of the property as against the plaintiff, and to make their claim out of it by a sale of the property under such mortgage.”

See First Nat. Bank v. Guntermann, 94 Mich. 125.

Counsel state in their brief: “Even had plaintiffs not had possession of this property before, they, might, on its arrival in Michigan, complete their inchoate lien by filing their mortgage, or by taking possession, as they did;” citing Waite v. Mathews, 50 Mich. 392. A reference to this case shows that the debt which was attempted to be secured by a judgment levy was a debt made before the giving of the chattel mortgage. In the opinion Justice Campbell says:

“ The other question was substantially decided in Kohl v. Lynn, 34 Mich. 360, and Fearey v. Cummings, 41 Mich. 376, where it was distinctly intimated that, in order to justify the application of the statute making mortgages, whether honest or not, absolutely void for want of filing or possession, some act must be done, or some detriment sustained, during the interval. As against all such rights, a mortgage without such possession or filing is absolutely, and not merely presumptively, void; while conveyances not by way of mortgage are only presumptively void, under such circumstances.”

Defendant Millar was a subsequent creditor, in possession of the property under his mortgage, seeking to enforce the lien given to him by it, when the plaintiffs re1plevied it. Their mortgage was void as to him. The circuit judge should have directed a verdict in his favor to the amount of his indebtedness, but not exceeding the value of tbe interest of Mr. Leroy in the property. Mr. Millar’s mortgage, even though it was not properly filed, and though he had not taken possession of the property by virtue of it, was not void as to the mortgage of plaintiffs, for.the reason that they'were neither subsequent creditors nor subsequent incumbrancers. Their debt accrued and their mortgage was given prior to the making of the Millar mortgage, and does not come within the provision of the statute.

Judgment is reversed, and new trial ordered.

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