MAXON V. PERROTT.

apparatus, team, vehicle, horses, harness, or other things, to enable any person to carry on the profession, trade, occupation or business, in which he is wholly or principally engaged, not exceeding in value $250."

In 1849, the legislature passed an act amendatory of this subdivision, the second section of which is as follows:

"The property exempted in the subdivision of which this act is amendatory, excepting mechanical tools and implements of husbandry, shall not be exempt from any execution issued upon a judgment rendered for the purchase money for the same property."—Comp. L. § 4494.

The question which this case presents, is whether the case of dental instruments is covered by the term "mechanical tools" or not; it being clear that, if not, these instruments were subject to the levy of the execution in question.

The counsel for the defendant has argued this question with no little ingenuity and subtlety, and it is certainly not easy to determine precisely what the legislature meant by the words in question. It is quite possible that the legislative design was simply to protect the agricultural and mechanical callings, and that tools necessary in the occupations of other persons were not meant to be exempted, notwithstanding they might properly be designated as mechanical tools.

I do not deem it necessary, however, to enter upon a critical examination of the words employed in the statute, as my brethren are all of the opinion that under any construction which could be reasonably given to the word "mechanical," as here used, the tools of a dentist must be included. A dentist, in one sense, is a professional man, but in another sense his calling is mainly mechanical, and the tools which he employs are used in mechanical operations. Indeed, dentistry was formerly purely mechanical, and instruction in it scarcely went beyond manual dexterity in the use of tools; and a knowledge of the human system generally, and of the diseases which might affect the teeth

THE PEOPLE V. PRITCHARD.

and render an operation important, was by no means considered necessary. Of late, however, as the physiology of the human system has become better understood, and the relations of its various parts and their mutual dependence are more clearly recognized, dentistry has made great progress as a science, and its practitioners claim, with much justice, to be classed among the learned professions. It is, nevertheless, true, that the operations of the dentist are still for the most part mechanical, and, so far as tools are employed, they are purely so; and we could not exclude these tools from the exemption which the statute makes, without confining the construction of the statute within limits not justified by the words employed. The ordinary meaning of "mechanical tools," it is plain, will include those in question, and there is nothing in the context which will justify us in saying that the legislative design would exclude them. The judgment of the court below must be affirmed, with

costs.

The other Justices concurred.

The People ex rel. John G. Parkhurst v. Benjamin D. Pritchard, Commissioner of State Land Office. Public lands: Power of Land Commissioner to withhold from sale: Costs. Where lands subject to entry are applied for, and payment tendered, the Commissioner of the State Land Office has no discretionary power to retain them from market for the accommodation of parties who had made application previously, but who were not ready to pay the money.

The Commissioner having acted in good faith, no costs were allowed.

Heard and decided October 13th.

Motion for a mandamus.

The petition set forth the following facts:

Parkhurst, through one Shwimm as his agent, on the first day of June, 1868, applied at the State Land Office to

THE PEOPLE V. PRITCHARD.

the Deputy Commissioner to purchase certain State swamp lands which he particularly described, and which, under the law, were subject to private entry or sale to any person applying at $1.25 per acre. At the time of so applying, Shwimm had the money with him to make payment, and requested that certificates of purchase be issued to Parkhurst. The Deputy Commissioner replied that said land had been applied for by one Richard R. Thomas by telegram on the 29th day of May preceding, and that on the next day said Thomas came to the office, but did not have the money to pay for the land, and the Commissioner of the State Land Office then promised said Thomas not to sell the land to any other person until after Thursday, the fourth day of June, 1868, which time he would give him to obtain the money in, and if he obtained the money by that time, he, the Commissioner, would issue certificates of purchase to him for the land.

On the next day, June 2d, Shwimm again applied for certificates of purchase of the land and tendered payment therefor, but the application was again denied on the same ground.

The answer of respondent alleged that as said Thomas resided in Bay City, he agreed to reserve said land long enough to enable him to go home and send the amount required to pay for the same by mail; that the granting of time to parties so applying to remit money or an equivalent of swamp land scrip and credits to pay for them, by return mail, had been usual and customary in his department. It further showed that on the 4th day of June, at 24 o'clock P. M. the Deputy Commissioner in said office received a telegraph from one Robinson to charge the lands so held for said Thomas to his (Robinson's) account; that said Robinson then had a deposit of swamp land warrants and credits on the books of respondent for an amount exceeding that required to pay for said land; and that he was entitled to transfer the same for the payment thereof; that said

THE PEOPLE V. PRITCHARD.

Thomas came to Lansing on the evening of June 4, and made payment for the land.

Parkhurst thereupon applied to this court for a mandamus to compel the Commissioner to issue certificates of purchase to him as first entitled in pursuance of his application and tender.

Gould & Lyon, for relator.

D. C. Holbrook, for respondent.

COOLEY CH. J.

Where lands which are subject to entry are thus applied for and payment therefor tendered, the Commissioner has no discretionary power to retain them from market in order to accommodate other parties. In the present case the right of Parkhurst to the certificates is clear.

Mandamus granted, but without costs; the court being satisfied the Commissioner had acted in good faith.

CHRISTIANCY and GRAVES JJ. concurred.

CAMPBELL J.

I am not prepared to decide that a party can not rest upon the assurance of the head of a department acting in his official capacity, or that he is precluded from allowing some delay where parties in good faith have applied to purchase lands and desire to pay for them.

The experience which we have had of the manner in which interlopers have managed to slip in, and avail themselves of the information derived from applicants for land whom they have contrived to supplant, is not such as to commend any such rigid practice as would tend to favor speculators at the expense of honest applicants. The present case does not show any malpractice of that sort, but I feel very strongly impressed with the propriety of recognizing some degree of discretion in the head of the land office to prevent unnecessary hardships and surprises.

The People ex rel. Wm. R. Phillips v. Benjamin D. Pritchard, Commissioner of State Land Office.

Motion for a mandamus.

The facts in this case were the same as in the preceding, and a mandamus was ordered on the same grounds.

A. Russell, and Gould & Lyon, for relator.

D. C. Holbrook, for respondent.

Theodore Romeyn v. James Caplis.

Heard October 13th. Decided October 14th.

Appeal in Chancery from Wayne Circuit.

The bill in this cause was filed by complainant to obtain the benefit of a certain bid made for his benefit by defendant at a receiver's sale; defendant afterwards claiming it for himself.

The case was heard upon pleadings and proofs and a decree made in favor of complainant.

D. C. Holbrook, for appellant.

T. Romeyn, and G. V. N. Lothrop, for appellee.

CHRISTIANCY J.

No question of law arises in this case.

Upon the facts,

the court are of opinion that the decree of the court below was correct, and it must be affirmed, with costs.

The other Justices concurred.