650 Agric'l College Lands.

INDEX.

Assignment, etc.

fraudulent purchase of. Id.

failure to inform commissioner of character of. Id.

Alimony-when not excessive, 605 (3).

Amendment-of attachment bond, 240 (1).

of return to writ of attachment as to time of service, 240 (2). Answer to order to show cause, 8 (4), 78 (5).

APPEAL.

1. The right to appeal from one tribunal to another is a statutory, and not a constitutional right. Kundinger v. City of Saginaw, 355.

2. On special appeal from justice's court the return of the justice upon all questions properly raised by the appeal must be taken as true. Kidd v. Dougherty, 240.

from action of board of supervisors, 509 (1).

to town board on laying out highway, 548.

if vexatious, damages for, 592.

Appearance of non-resident defendant after order of publication renders publication of order unnecessary, 296 (1.)

Approval of saloon bond-see LIQUOR DEALERS BOND

Arson-see CRIMINAL LAW

Articles of association-of corporation should state clearly the purpose of incorporation, 157 (1).

need not state the means or methods of manufacture, 158 (2). ASSIGNMENT FOR BENEFIT OF CREDITORS.

1. A debtor made a general assignment, under the statute, for the benefit of his creditors. Four days afterward, plaintiffs, who had sold the assignor several bills of goods prior to the assignment, elected to rescind such sales upon the claim that the assignor did not intend to pay for the goods, when purchased, gave notice of such election to the assignee, and thereupon brought replevin against the assignee for all of said goods, a portion of which were seized on the writ and delivered to the plaintiffs, the balance not being found by the officer. The replevin suit was tried upon this claim of fraud on the part of the assignor, which was established by the evidence, and a judgment rendered in favor of the plaintiffs. The validity of the assignment was conceded by plaintiffs and claims proven to the amount of $15,368.67 against the assignor, upon which the assignee, after due notice, declared and paid a dividend of twenty per cent. After this, plaintiffs filed their claim against the assignor with the clerk of the circuit court of Cass county, based upon accounts for all of the goods purchased as aforesaid, making no mention of the replevin suit or judgment, but crediting on said accounts the value of the goods replevied, as estimated by them, which credit was by stipu lation increased to the amount charged to the assignor, in said accounts, for said goods. Due notice was given by the assignee that the claim would be contested. On this state of facts the claim of plaintiffs was rejected by the circuit court.

Held, that by rescinding said sales and prosecuting to judgment an action of replevin for the goods sold, on the theory that the fraud of the assignor had vitiated said contract and that they owned said goods, plaintiffs had elected their remedy and cannot be allowed to come into court a year afterward, because of their failure to secure adequate relief in the replevin suit, and base a claim upon the inconsistent idea that the goods were sold to the assignor. One theory is totally at variance with the other, and if one elects between two inconsistent remedies, the right to pursue the other is forever lost. Farwell v. Myers, 179.

2. The right of plaintiffs to collect the value of the goods not recovered in the replevin suit, in a proper action for their conversion, is not

denied; but he cannot do so upon the claim filed with the assignee counting upon the original contract for goods sold and delivered. Id. 8. The statute regulating voluntary assignments for the benefit of creditors, How, Stat. §§ 2137 to 2140, does not by its terms prevent the further continuance of any proceeding at law pending at time of the assignment, in a competent court; nor is the jurisdiction of such court ousted or impaired, but it has a right to proceed to trial and judgment in said suit the same as if no assignment had been made; and such judgment, unless reversed or set aside in a proper proceeding for that purpose, is final and conclusive. E. T. Barnum W. & I. Works v. Speed, 272.

4. Defendants made an assignment for the benefit of their creditors, and among their assets was a certain account due them from the husband of plaintiff, since deceased. Their assignors, without their knowledge, presented said account for allowance, in defendants' names, before the commissioners on claims appointed by the probate court on the estate of said deceased debtor. Plaintiff, as administratrix, filed as a set-off certain notes due the estate from defendants, and the commissioner allowed both claims and found a balance due the estate from defendants of several hundred dollars, to recover which this suit is brought. Defendants had no notice of these proceedings before the commissioners, never authorized them, and never appeared therein, or in any manner assented thereto.

Held, that the commissioners had no jurisdiction to take any action or render any judgment, or make any finding or report which would be valid or binding upon the assignors, who were defendants in said suit. They had never had their day in court, or any notice that their rights were in jeopardy, and never appeared before the commissioners when the proceedings were had, resulting in what is claimed to be, in effect, a judgment against them. Kimball v. Cannon, 290.

5. The execution of a common law assignment, for the benefit of creditors, is not a bar to an action by a creditor against the assignor; nor does such assignment operate to prevent the running of the statute of limitations. Parsons v. Clark, 414.

6. A partial payment by such assignee, upon a debt due from the assignor, which shows upon its face that it is to be applied as a final dividend upon the claim, will not have the effect to save the demand from the operation of the statute of limitations. Id. 7. It is the duty of an assignee to pay and discharge the debts of his assignor, so far as he is enabled to do so from the assets, and he has no authority, in virtue of his trust, to renew, revive, or continue in force the undischarged portion thereof, or to bind his assignor by either an express or implied promise of payment. Id.

8. Under the assignment law of this State-How. Stat. chapter 303the assignee, and not the creditors, should be the party complaining of frauds against the assignment, as section three confers upon him "the right to recover all property or right, or equities in property, which might be reached or recovered by any of the creditors of the assignor.' Root v. Potter, 498.

9. The assignment law regards the assignee as a trustee or representative of the creditors, for all purposes auxiliary to the assignment, and if creditors could sue also, it would create great confusion. Id. 10. There is nothing in the assignment law which undertakes to avoid dealings previous to the assignment, whether near or remote in point of time, which were in no way connected with it in the intention of the parties. The statute only makes preferences void which are made by the assignment itself; and this, by the largest possible construction, cannot go beyond such acts as are done, in such a time and

652

Assignment, etc. INDEX.

Board of Supervisors.

manner, as to be parts of the same transaction, and within the same disposition whereby the debtor's entire estate is applied to the pay ment of all his debts. Id.

11. Preferences, to come within the language and mischief of the assignment law, must be made in separate form to avoid the effect which the statute would operate, of annulling them, if they were included in the assignment itself. Id.

12. The assignment law shows no intent in the Legislature to change the existing statutes against frauds except in the one particular of preferences; and it would be a very dangerous and unfortunate rule, if it could be legally adopted, which would annul the dealings of honest persons with those whom they do not suspect of fraudulent or unlawful designs. Id.

ATTACHMENT SUIT.

1. The statute permits a new bond to be given in attachment suits, where the one filed is found to be defective: Secs. 7770-1 How. Stat. Kidd v. Dougherty, 240.

2. A justice of the peace has power, under the statute of amendments, to permit an officer to amend his return to a writ of attachment, by showing when it was in fact made, and the writ and return filed with the justice. In a case where the defendant cannot be found, and only appears by an attorney, specially, to object to the jurisdiction of the court, notice of a motion to so amend cannot be given. An attorney so appearing is not entitled to such notice. Id. ATTORNEY-AT-LAW.

1. The authority of attorneys in good standing, who have appeared for a defendant to a suit in the circuit court, will be presumed until the contrary is shown; and no rule, statute or authority exists, requiring such attorneys upon demand of the opposite party, to affirmatively establish their power to act for defendants in whose behalf they have entered an appearance in due form. Norberg v. Heineman, 210. Attorney-General-should generally represent people in supreme court, 529 (1).

Authority-of attorney-at-law to appear, presumed, 210 (1).
Averment of ownership in arson case, 559 (4).

Benevolent society-by-laws of, 65.

deposit of funds by treasurer, Id.

Biennial election-see CONSTITUTIONAL LAw, (4).

Bill of particulars-no part of declaration, 509 (6),

does not come up on demurrer.

Bill of sale-as security, 596.

Id.

demand of possession or payment of debt necessary before bringing replevin. Id.

Board of control of swamp lands-powers of, 113.

Board-of prisoners in criminal cases, price of not fixed by law, 509 (3). amount in discretion of board of supervisors. Id. BOARD OF SUPERVISORS.

1. The constitution of Michigan, Art. 10, § 10, vests in the board of auditors of Wayne county, and in the boards of supervisors of other counties, the "exclusive power to prescribe and fix the compensation for all services rendered for, and to adjust all claims against their respective counties," from which determination there is no appeal. Except where the amount of a claim needs no adjustment, because fixed by law or otherwise capable of liquidation. this provision is clear and effectual and conclusive in cases to which it applies, of which the present is one. Cicotte v. County of Wayne, 509.

2. Sheriff's fees for the board of prisoners, in criminal cases, are not

fixed by law and are among the cases, which, ever since the revision of 1846, have come within the provisions of section 9055, How. Stat.. which expressly makes it the duty of the board to determine the sheriff's compensation for such board, in their soun i discretion, and when he takes the office he does so with this condition.

Id.

8. A prosecuting attorney has no power to divest the board of this exclusive jurisdiction; and his stipulation so to do, and allow the jury to find what they might regard as reasonable, is unauthorized and improper. Id.

See NUISANCE, 24 (5).

Bonds of liquor dealer-see LIQUOR DEALERS BOND.

new one may be given in attachment suit, if one filed is defective, 240 (1).

Breach of promise to marry-exemplary damages for, 33 (2). wealth of defendant may be shown, 33 (1).

when damages for, not excessive, 33 (2).

declarations of plaintiff-evidence of, 33 (3). BRIBERY.

Sections 9241 and 9242, How. Stat., punishing bribery in the case of "any executive, legislative or judicial officer," apply as well to manicipal, as to State officers, the character of whose duties falls within any of those definitions; and a construction which would take cities and other public corporations out of the protection of these 1ws, would be dangerous and unnatural. People v. Judge of the Recorder's Court of the city of Detroit, 529.

Burden of proof-under How. Stat. § 3378, 437 (2).

See NEGLIGENCE.

Burglary-breaking and entering in night time, 576 (1).

when so charged, becomes a necessary element of the crime, to be proved in order to convict. Id.

failure to so instruct the jury, error.

Id.

larceny from building, when must be proved. Id, (2). Certificate of swamp land commissioner, 113.

CERTIORARI.

The circuit court has power, on its own motion and against the protests of plaintiff in error, to order a further return by the justice to a writ of certiorari, where it deems the original return insufficient upon any error alleged. Gordon v. Sibley, 250.

affidavits of third parties no part of return to. 624 (1).

Challenge for cause-of juror specially interested in opening of street, 355 (1).

Challenge to the array-for non-return of jury list, 1 (3).

for irregular drawing of jury. Id.

Character-proof of, 1 (5).

CHARGE TO JURY.

It is error for a court, in instructing a jury, to advance a theory in conflict with all of the evidence in the case. Hudnut v. Gardner, 341.

See PRACTICE IN CIRCUIT COURT (3). CITY CHARTER.

Where a city charter prohibits the common council from contracting debts or incurring liabilities exceeding in any one year the revenue for such year, unless authorized by a majority vote of the electors of the city, a contract made by the common council, without such vote, for the use of at least fifty water hydrants, per year, at fifty dollars each, for a term of thirty years, creates a liability against the city to the full extent of the thirty years' rental, which aggregate liability being in excess of the revenue authorized to be raised in any one year, the contract falls within the language, as well as with

651

City Charter.

INDEX.

Condemnation Proceedings.

in the mischief of the prohibition, and is void. Niles Water Works v. Niles, 311.

CITY COUNCIL.

A city council is only an agency to represent the people of the munici pality, and the Legislature having given them what is deemed ample power to raise money, year by year, for the needs of each year, and no more, if they desire to make larger outlays, or to burden the future revenues of the city, it is left to the parties more directly interested to determine how far this shall be done. Niles Water Works v. Niles, 311.

Clerk of police court-cannot take complaint or issue warrant in criminal case, 573 (1).

Commissioners on claims-notice essential to validity of their action, 290. Commissioners-to take depositions, chancery rule 52 construed, 87 (6). Commissioners in partition-see PARTITION SUIT.

Common counts-value of articles delivered under written contract, at specified price, may be recovered under, 300 (1). defendant may recoup damages. Id.

suit v. county on, 509 (7).

See COMPENSATION.

Compensation-for services rendered for county, when fixed by board of supervisors, 509 (1).

of agent, 253 (1).

if fixed, excludes opinion of witnesses as to proper commission. Id. if that claimed is largely in excess of any usual commission, price must be based on express contract, for breach of which a recovery cannot be had under the common counts.

Id.

Complint-to recover possession of lands. 382(1).

for not keeping saloon closed after nine o'clock, 570(1). need not negative action by council extending time. Id. Computation of interest-under How. Stat. § 1599, 364. CONDEMNATION PROCEEDINGS.

1. In proceedings under a city charter for laying out and opening a street and taking private property therefor, a juror specially interested in having such street laid out and opened by reason of some special gain or convenienee which he expects to derive therefrom, is disqualified and may be challenged and rejected for cause. Kundinger v. City of Saginaw, 355.

2. Neither the constitution nor the charter in question contemplates or requires more than a single jury to pass upon the questions involved in condemnation proceedings, within the vicinage of which such jury is impaneled; and the manner of obtaining it is a matter of legislative discretion. Id.

3. It is not a valid objection that the charter under which the condemnation proceedings are carried on, permits separate parcels of land owned by different persons to be condemned by the same jury. Id. 4. In the exercise of this power of eminent domain, the corporate authorities can take no more land or private property than the public need requires for the purposes of the street sought to be opened; and in such a case the jury must first determine whether the public necessity requires the proposed street, for use as a street, by the public generally. Id.

5. The charter of the city of Saginaw is fatally defective in not provid