manner provided by law for raising funds for the general purposes of said city," does not appear in said Act No. 388. The language of the deeds that "said strip of land is conveyed for the use of a public boulevard as contemplated by Act No. 374," etc., should be construed, in the light of the surrounding circumstances, as referring to a boulevard to be improved and maintained by general taxation only. Under this construction the acceptance of the deeds by the city raised an implied contract, at least, not to levy special assessments upon the grantor's abutting property. The agreement was one which the city had power to make, and which it ought to keep. Coit v. City of Grand Rapids, 115 Mich. 493 (73 N. W. 811). The section (30) of Act No. 388, Local Acts 1889, which repealed Act No. 374, Local Acts 1879, expressly "Provided, that such repeal shall not impair or affect any acts done or rights accrued or acquired under said act."

The decree is reversed, and a decree may be entered in accordance with this opinion, with costs of both courts to complainants.

GRANT, MOORE, MCALVAY, and BROOKE, JJ., concurred.

SWANTEK v. JARMOSZKA.

JUSTICES OF THE PEACE-APPEAL-CERTIORARI AS EVIDENCE. After the removal of a cause by appeal from justice's to circuit court the justice's return to a writ of certiorari is of no effect and is incompetent as evidence in aid of a motion to dismiss the appeal. 1 Comp. Laws, § 918.

Error to Kent; McDonald, J. Submitted October 15, 1909. (Docket No. 99.) Decided December 10, 1909.

Assumpsit in justice's court by Peter Swantek against Stephen Jarmoszka for work and labor. Plaintiff recovered judgment for an insufficient amount, and appealed to the circuit court. The defendant subsequently took out certiorari upon the justice's judgment. An order granting a motion to dismiss the appeal is reviewed by plaintiff on writ of error. Reversed.

George Hollway, for appellant.
Hatch & Raymond, for appellee.

MCALVAY, J. Plaintiff on May 11, 1908, recovered a judgment in justice's court in the city of Grand Rapids against defendant in an action in assumpsit for $160 damages and costs of suit. This amount being much less than the amount claimed by plaintiff, he in due time took a general appeal to the circuit court for Kent county. The return to this appeal was taken May 16, and filed May 19, 1908. Steps taken by him in making this appeal, and the return by the justice, appear to be regular in all respects. Afterwards defendant took steps to remove the case to the said circuit court by writ of certiorari. The return to this writ was made by the justice on June 30, 1908. Plaintiff's appeal was duly noticed and regularly set for trial upon the circuit court jury calendar for the September term following. At that term defendant moved to dismiss the appeal for the reasons:

(a) That the judgment was rendered by the justice when without the limits of the city of Grand Rapids and while in Benzie county, sending a memorandum of said judgment by mail to the clerk of his court.

(b) That he so decided it on May 11, 1908, which was the third day after the trial, when he had announced that he would take four days in which to decide the case.

These are all the objections made to the regularity of

the proceedings, or to the judgment. This motion was founded upon the return of the justice to the writ of certiorari. Upon the hearing of this motion the case was stricken from the calendar on motion of defendant's attorneys. The case was again noticed for trial by plaintiff for the December term of said court, and defendant made the same motion to dismiss the appeal upon the same grounds. The motion was granted, and a judgment entered accordingly. Plaintiff by writ of error asks a review of the case upon errors assigned.

The contention is that the court erred in considering the return in the certiorari case upon the motion to dismiss, and in dismissing the appeal on account of statements contained in such return. As far as this record shows, no hearing has ever been had in the certiorari case. The only use which has been made of the return of the justice in it has been for the purposes of the motion to dismiss the appeal of plaintiff. The situation is a novel one.

We consider the error assigned upon exceptions taken broad enough to go to the competency of the return in the certiorari case as evidence. The appeal had been taken regularly, and the return made and filed in the circuit court, before the proceedings for certiorari were taken. It is well settled that after an appeal is perfected the justice has no further jurisdiction over the case. The statute reads:

"On filing the return of the justice the circuit court shall become possessed of the cause the same as if it had been originally commenced in said appellate court, subject to the same rules and regulations." Section 918, 1 Comp. Laws.

Therefore after this appeal the justice had no jurisdiction of the case. His return to the writ of certiorari was of no valid force or effect. The action of the court in dismissing the case, having been founded solely upon the recitals contained in the return of the justice to the writ of certiorari, was erroneous.

It is not necessary to discuss other matters argued in

the briefs of the parties. No other relevant or material questions are presented.

The judgment is reversed and set aside, and the case is remanded to the circuit court for further proceedings.

BLAIR, C. J., and GRANT, MOORE, and BROOKE, JJ., concurred.

CRYSTAL ICE CO. v. UNITED SURETY CO.

1. INSURANCE-GUARANTY AND INDEMNITY BONDS-PRINCIPAL AND

SURETY.

It is not a defense to an action on a bond which indemnified an employer against the default of a collector, and which provided for notice to the surety company by registered letter, that the registered letter was not sent as required by the contract, where actual notice was promptly given of the embezzlement to the State agent of the surety, who promptly notified his principal.

2. SAME-CONTRACTS-WAIVER-BREACH.

The employer was justified in acting on the advice of the State agent and retaining the collector in his employ, notwithstanding a proviso in the contract against such retention after a default, where it appeared that the advice given was known to the surety and it forwarded blank proofs of loss and received the proofs without objection.

A bond for indemnity against loss through the default of an employé makes the surety an insurer in all essential particulars and subject to the same rules as fire and life insurance companies.

4. SAME-PRINCIPAL AND AGENT-GENERAL AGENCY.

An agent who takes a risk and issues a policy of insurance is a general agent.

5. SAME-DEFENSES-EVIDENCE.

Evidence that money had been taken by the employé, is insufficient to establish as a defense to an action on the indemnity contract that his accounts had not been examined weekly, as required by the contract.

Error to Wayne; Murfin, J. Submitted October 22, 1909. (Docket No. 175.) Decided December 10, 1909.

Debt by the Crystal Ice Company, Limited, against the United Surety Company for the amount of a bond. A judgment for plaintiff is reviewed by defendant on writ of Affirmed.

error.

Frank C. Cook, for appellant.
Thomas Hislop, for appellee.

MCALVAY, J. The action in this case was brought by plaintiff on a surety bond executed by defendant company to plaintiff June 1, 1906, insuring plaintiff, for the term of one year, to the amount of $500, against loss sustained by the larceny or embezzlement of a certain employé while in plaintiff's employ as a collector The surety bond was renewed for another year by a renewal certificate. On December 24, 1907, while this bond continued in force, the employé confessed to Mr. Osborne, secretary of plaintiff company, that he had not returned money of plaintiff collected by him, to the amount of $96.98. The secretary at once went to Mr. Parker, who was State agent representing defendant, and reported what the employé had told him. He asked Mr. Parker what he should do about it, and whether he should continue the employé at work. He told him that he did not know, and could not tell from the nature of the business, how much was missing; that he only knew the amount confessed to him. Mr. Parker told him that he would report to the company, and that he would better keep the man at work until he heard from the company, as it would be but a few days. The secretary followed these instructions. He continued to find