NEWBERRY v. DETROIT AND LAKE SUPERIOR IRON Co.

interests, ought now to be deemed sufficient to deprive the complainant of the right to the interference of a court of equity. McCready v. Rumsey, Pres't of Suffolk Bk. 6 Duer, 574; Brent v. Bank of Washington, 10 Pet. 596; Tash v. Adams, 10 Cush. 252; Fuller v. Inhabitants of Melrose, 1 Allen, 166; Inhabitants of Plymouth v. Russell Mills, 7 Id. 438; Pendergast v. Turton, 1 Young and C. 98; Reimers v. Druce, 23 Beav. 145; Nicholson v. Hooper, 4 Myl. and C. 180; Parrott v. Palmer, 3 Myl. and K. 632, 640; Duke of Leeds v. Earl of Amherst, 2 Phil. 117; Shapley v. Rangeley, 1 Wood. and M. 213; Manufacturers and Traders Bk. v. Hazard, 30 N. Y. 226.

As this view disposes of the case, it is unnecessary to inquire whether the stock, as subject to the lien of the corporation could be seized and sold on execution, or whether, if it could be, such lien would have to be paid in fourteen days, or whether the assignments to Austin, Parsons and LeRoy or either of them could be set up by the company against the claim of the complainant, or whether the proceedings to enforce the lien were valid, or to decide upon the construction of the statutes as to transfers on the corporation books.

It is sufficient that the complainant could not invoke the aid of the court to invest him with the absolute right to the stock without his discharging the lien; that under the most favorable view for him he was bound to exercise reasonable diligence in discharging that lien, and in the pursuit of his claim, and required to avoid a course naturally leading the company to adopt measures wholly inconsistent with the existence of his right, and which would make the establishment of his claim, in a very high degree, injurious to the interests of the present actual stockholders.

I am, therefore, of opinion that the decree of the court below should be affirmed, with costs.

COOLEY CH. J.

I agree in the result to which my brother, Graves, has arrived; but I put my concurrence on the ground solely

NEWBERRY V. DETROIT AND LAKE SUPERIOR IRON Co.

that, when Newberry's levy was made, Russell had no interest in the stock levied upon, and the levy was, therefore, entirely ineffectual. The clause in the statute on which complainant relies that transfers of stock shall not be valid, except as between the parties thereto, until duly entered upon the books of the corporation is a clause for the protection of parties having equities; and without inquiring whether it can be applied in any case to the protection of other assignees who take assignments with knowledge of a prior transfer, it is very clear, I think, that a judgment creditor who buys with full knowledge can get, by his levy and purchase, nothing that the debtor himself could not claim. I, therefore, express no opinion upon the questions discussed by my brother, Graves.

CAMPBELL J.

I concur with my brother, Graves, in holding that, if complainant obtained any interest in the stock, under the execution proceedings, he has become equitably estopped from insisting upon it. And I agree in the reasons which have been declared for that opinion.

But I am also of opinion with the Chief Justice, that no title passed under the execution sale, as Russell's rights had been already divested.

CHRISTIANCY J. did not sit.

JULY TERM, 1868, AT LANSING.

The People ex rel. School District No. 1 of the Township of Portage v. Wm. Ryan, Supervisor.

Return to writ of mandamus:

When sufficient. Where the return to a writ of mandamus showed, amongst other things, that the respondent, a supervisor, was ignorant whether a certain school district was organized, or whether it had enlarged its boundaries, and that, therefore, he could neither admit nor deny the same: Held, sufficient to present an issue for trial.

Heard and decided July 8th.

Mandamus.

This was a motion for a further return to the writ.

The petition, among other things, alleges that the school district aforesaid, on September 23, 1863, was duly organized, and that, at that time, by a vote, it enlarged its boundaries so as to embrace the whole of said township of Portage, and that this action was subsequently confirmed by an act of the Legislature, and that certain school taxes for said school district ought to be levied and assessed upon the whole of said township or district. It seems that the territory of the township of Portage has, since 1863, been divided into several new townships, among which are the township of Adams, of which the respondent is the supervisor, and he refuses to levy and assess said school taxes upon the property embraced within said new township of

THE PEOPLE V. RYAN.

Adams, claiming that they have organized a school district. of their own within said new township of Adams, and should not pay taxes to support said school district of Portage township. The respondent in his return set up these facts, but stated that he was ignorant whether said school district number one was duly organized, or whether it, by a vote, duly enlarged its boundaries, as alleged, etc., and that, therefore, he could neither admit nor deny the same. The relator deeming such return unsatisfactory and evasive, moved for a further return for the reason that no issue could be based on said return, as it did not deny the facts averred; citing 9 Wend. 429; 10 Id. 23.

G. V. N. Lothrop, and L. S. Trowbridge, for the motion.

E. C. Hinsdale and C. I. Walker, contra.

The Court held that the return was satisfactory and sufficient, and that it was the proper return to be made under the circumstances; and that the old common law rule as to such returns had been abolished by this court, and there was no practical difficulty in framing proper issues from such a ruling under the practice of this court, as no right to a writ could exist, unless the facts should be either admitted or proved, and a party can not be compelled, under oath, to admit or deny what he has no means of knowing with certainty.

Ordered, that the cause be sent down to Houghton Cirquit to be tried on such issue.

Motion denied.

THE PEOPLE v. THE AUDITOR GENERAL.

The People ex rel. the Regents of the University v. The Auditor General.

Mandamus: Regents of the University: Professorship of homeopathy. The legis lature having provided for the payment, to the Regents of the University, of a tax of one-twentieth of a mill on the dollar, upon all the taxable property in the state, "Provided, That the Regents of the University shall carry into ef fect the law which provides that there shall always be at least one professor of Homœopathy in the Department of Medicine, and appoint said professor at the same salary as the other professors in this department." And the regents having adopted certain resolutions "that there be organized in the Department of Medicine a school to be called the Michigan School of Homeopathy, to be located at such place (suitable in the opinion of the Board of Regents) other than Ann Arbor, in the State of Michigan, as shall pledge to the Board of Regents by June 20th next, the greatest amount for buildings and endowment of said school," and appropriating $3,000, besides the salaries of Professors, out of said tax, to be expended in establishing said School of Homeopathy, and appointing, for the present, one Professor in said school at the same salary as the other Professors, the Auditor General refused to issue his warrant on the State Treasurer for the payment of any of the money raised by said tax, on the ground that the resolution of the Regents did not constitute performance of the condition, upon which the aid was granted to the University; and insisting that the condition required the appointment of such Professor in the existing Medical Department of the University at Ann Arbor, and not elsewhere. On motion for a mandamus to compel him to issue his warrant, the writ was not granted, a majority of the court not assenting to the issuing of the writ.

Heard June 2d. Decided July 13th.

Mandamus.

This was an application, by the Board of Regents of the Michigan University, to compel the Auditor General to pay the sum of $3,000, which they had appropriated by resolution to establish a school of Homœopathy.

The petition set forth that, by the act of the legislature Sess. L. 1855, p. 232-it was provided that there shall be "at least one professor of Homœopathy in the department of medicine" in the University. That, by the act of 1867, it was further provided that the Board of Regents of said University should appoint said professor in the department of medicine at the same salary as the other professors in said department. That subsequently the said regents passed the resolutions stated in the opinion of CHRISTIANCY J.