did not appear upon the official plats; and, for reasons which I need not elaborate, it follows, if I am right, that the question of island or no island should have been left to the jury. I think there should be a new trial of the case. which it sold, it is not such a case as this. There is nothing to call in question the good faith towards the government of the surveyors who made the first survey. The testimony makes it doubtful whether, at the time of that survey, the strip in controversy was an island or part of the main-land. In such case the surveyors may determine, to the best of their judg-trict court, judgment was entered on the ment, whether such strip should be surveyed as an island or a part of the mainland; and if their survey is approved, and the land sold according to it, the government is bound by their action. This be ing so, the title to the strip in question passed under the patents to Robert and Kittson, and, as a consequence, the subsequent survey and platting of it as an island was unauthorized, and the patent issued to Lamb pursuant to it passed no title. For the same reason the proceedings of the officers of the land-office, upon Lamb's application to pre-empt under the subsequent survey, which plaintiff offered to prove, were null. Those officers could have no jurisdiction to determine anything in relation to lands which the United States had already conveyed. There was no error in excluding evidence of those proceedings. Under the views we have expressed as to the effect of the original surveys and plats, and the grants to Robert and Kittson under tl em, the direction of the court to the jury to return a verdict in favor of defendants was right. Order affirmed. BERRY, J., (dissenting.) As stated in the majority opinion, the official plats of the townships in which the lots purchased of the United States by Robert and Kittson lie contain a delineation of that part of the Mississippi river lying in those townships, and such plats show no island in the river opposite to said lots. Bat, except by the absence of any island from this representation of the river, it does not in any way appear whether there was an island there or not, nor that the land in controversy was included in the original survey. Now, as under the decision of the supreme court of the United States a riparian owner upon the Mississippi river takes to the stream, and no further, an island-that is, a body of land separated from the shore by a part of the stream→ does not pass to the owner of the shore lying opposite to it, by virtue of his riparian ownership. He stops at the stream. If there is an island opposite his lund, he does not acquire it. He has therefore no right to insist that the plat shall show such island, if any there be. The United States is under no obligation to disclose to him the character of the river, as clear of islands or as full of them, any more than it is to disclose the character of the land on the opposite side of the river. He gets all that he purchased when he reaches the stream; what is beyond is no concern of his, as a purchaser from the United States. I do not, therefore, agree to the position of the majority, that the United States were estopped from claiming that there was an island (to-wit, the land in controversy) opposite the Robert and Kittson lots, by the fact that such island v.49N.w.no.8-20 This case having been remitted to the disverdict, and the plaintiff again appealed. GILFILLAN, C. J. This case was heard at the last October term of the court upon an appeal from an order denying a motion for a new trial. This appeal, which is from the judgment entered in the court below since the decision of this court upon the former appeal, presents no question not raised on that appeal. The judgment will be affirmed for the reasons set forth in the opinion then filed. 1. Where the laws of an association provide that the funds shall be placed in the hands of the treasurer, and that no money shall be drawn except by an order of the executive council, signed by a chief officer (naming him) and at least two trustees, without providing any manner of turning over funds to a successor, an action to recover the funds cannot be maintained against the treasurer merely because he refuses to pay the money in accordance with a resolution of the executive courcil, when no order is drawn and signed as provided. 2. Under How. St. Mich. § 7635, which provides that when a verdict shall have been rendered in any case the judgment shall not be stayed for any mistake in the name of any party, and section 7636, which provides that the omis sions in the preceding section enumerated, not being against the right and justice of the suit, and not altering the issue, shall be supplied and amended by the court where the judgment shall be given, a complaint of "P. S. and J. T., trustees, for the use, " etc., will be presumed after verdict to have been amended so as to read "P. S. and J. T., as trustees," to show that they sue in an official capacity. Error to circuit court, Wayne county; GEORGE S. HOSMER, Judge. Action by Patrick Smith and John J. Thomas, trustees, for the use and benefit of the Ancient Order of Foresters, against Thomas Pinney. Judgment for plaintiffs. Defendant appeals. George W. Radford, for appellant. Conely, Maybury & Lucking, for appellees. CHAMPLIN, C. J. The Subsidiary High Court of the United States of the Ancient Order of Foresters is a voluntary associa tion composed of delegates from district or from subordinate courts, and is organized for the mutual benefit of the members of the order, and for benevolent purposes. It possesses the general legislative power of the order, and is supreme authority for organizing district and subordinate courts. It holds biennial sessions, commencing on the second Tuesday in August. There is an executive council, which is composed of the officers of the subsidiary high court, whose duties and functions are defined by the general laws of the order. Among the officers of the subsidiary high court there is a treasurer and a permanent secretary. The general laws provide for the election of three trustees, as follows: "Article XI. Trustees. Section 1. There shall be three trustees of the subsidiary high court, who shall be elected at each session thereof, who shall have charge of the property of the court, and in whose names or the name of the subsidiary nigh court, as provided in section 1, art. 6, the bonds of the treasurer and secretary shall be given. It shall be the duty of the trustees to investigate and ascertain if the sureties on the bonds of the permanent secretary and high court treasurer are responsible for the amount of their bonds; and they shall invest, subject to the approval of the subsidiary high court, surplus funds of the court. No money shall be drawn from the treasurer or bank by the trustees unless by special order of the subsidiary high court meeting, or the executive council, duly signed, countersigned, and sealed." Article 33 of the general laws provides for an endowment fund; section i of which reads as follows: "There shall be, in connection with and under the exclusive jurisdiction of this subsidiary high court, a fund to be known as the Ancient Order of Foresters Endowment Fund,' having for its object the payment upon the death of a member thereof a sum not exceeding two thousand dollars to the nominee or nominees, widow, children, or other next of kin or legal representatives of such deceased member as may be entitled thereto provided, however, that up to the time of the member's death he shall have in all things conformed to the laws, rules, and regulations governing said fund." This fund is raised by assessments upon the members, which are levied through the executive committee, and collected through the special courts, and transmitted by the secretary of each court to the executive council. Section 17 of this article provides: "All money received for and on behalf of this fund shall be deposited in such bank or banks as may be selected by the executive council and trustees of subsidiary high court in the name of the A. O. F. endowment fund. No drafts or checks upon the same shall be drawn or made except for the purposes in this article specified. Such drafts or checks shall be signed by the H. C. R., or H. S. C. R., treasurer and secretary and trustees of S. H. C., and impressed with the seal of this fund. A copy of this section, together with the signatures of the afore-mentioned officers, and an impression of such seal, shall be delivered by E. C. to the bank or banks in which such funds are deposited." In this section the initials "E. C." stands for" Executive Council;" "S. H. C.," for the "Subsidiary High Court:" "A. O. F., "" Ancient Order of Foresters; ""H. C. R.," "High Chief Ranger;" and "H. S. C. R., "High Sub-Chief Ranger." Connected with the endowment fund are the following: (a) Endowment management fund; (b) reserve fund: (c) management account. Ar 966 ticle 6 prescribes the duties of the permanent secretary, section 1 ôf which declares "there shall be a permanent secretary of this S. H. C." Section 2 provides that the permanent secretary shall at each meeting of the executive council transfer all postoffice orders, checks, drafts, postage stamps, and cash received on account of the order to the subsidiary high court treasurer, and take his receipt therefor. He is also required to give bonds payable in case of default to the trustees of the subsidiary high court. The benefits to be paid from the endowment fund are required to be paid by draft or check, payable to the person or persons legally entitled to receive the same, and forwarded through the court's secretary, who shall, on receipt of the same, notify the trustees, and they, with the secretary, shall visit the person or persons entitled to receive the same, and pay it over, taking proper receipts for the same. Article 33, § 16. Article 12, § 1, reads as follows: "The funds of the executive council shall be placed in the hands of the subsidiary high court treasurer, who shall give bonds to the trustees, with two or more sureties, for the faithful performance of his duties, and in such a sum as the council for the time being may require, which shall not be less than $20,000. Section 2 provides no money shall be drawn from the subsidiary high court treasurer except by order of the subsidiary high court meeting, or the executive council, and by order signed by the subsidiary high chief ranger and at least two frustees, or, in his absence, by the subsidiary high sub-chief ranger and two trustees, and countersigned in either case by the permanent secretary. Article 33, § 28a, provides as follows: "There shall also be, in connection with this fund, a reserve fund, to which shall be transferred all surplus arising from time to time in the endowment management fund, which shall be paid over to the high court trustees every quarter, to be invested by them in government bonds, and shall only be used for the purpose of keeping assessments from occurring oftener than fifteen in any one year." Section 32 of the same article provides as follows: “All moneys received by the permanent secretary shall be transmitted to the treasurer within three days, taking his receipt therefor;" and section 33 provides: "The treasurer shall, within three days after receipt of moneys, deposit the same as per section 17 of this article." The moneys referred to in this section pertain to the endowment funds and the other funds attached thereto. Section 22 of the same article provides that all remittances for this fund shall be sent by certified check, post-office order, registered letter, or through an express company to the executive council, payable to the high court treasurer. There are other funds belonging to the subsidiary high court, such as the arbitration fund, sick and funeral fund, and general management fund; but it is not necessary to specify particularly in reference to them, as the custody and disposition of them all has already been referred to. Plaintiffs in this suit are the trustees of the subsidiary high court, duly elected. tions upon the declaration and bill of particulars, the objection being that the plaintiffs were described as trustees for the use and benefit of the Ancient Order of Foresters, and that those words were merely descriptive of the persons of Patrick Smith and John J. Thomas, and that the suit was therefore in their individual names, to recover money which in their bill of particulars was paid to defendant by other persons. The court overruled the objection, and received the testimony. As this objection lays at the foundation of plaintiffs' right to recover at all, and is one of the main grounds relied on by defendant to defeat the action, it should be first considered. It appeared in evidence that there were in 1887, at the time the suit was brought, some 600 subordinate courts, having a total membership of 60,000 to 65,000 persons. The rule undoubtedly is that the party suing in a repre sentative capacity, where the contract or promise was made to the person he represents, and not to him personally, must set up specially the representative capacity in which he sues. This rule is illustrated by suits brought by executors or administrators and others. If the cause of action accrued, or the promise was made to the testator or intestate, in his lifetime, the executor or administrator must sue as such, and allege the promise to have been made to the person in his lifetime, whom he represents. If made to him personally after his appointment, although it be a promise to perform some act or pay some debt due to the testator or intestate, the representative may sue individually or in his representative capacity. In this case the words following the names of the plaintiffs were merely a description of the person, but the objection was one that could have been obviated by amendment by inserting the word "as" before the word "trustees." The declaration would have shown then that the suit was not brought by them in their individual capacity, but in their representative capacity as trustees; and the counts in the declaration might also have been amended to correspond. Our statute of amendments is very liberal. How. St. c. 264. Such amendments as related to the names of parties have been sanctioned by this court. Final v. Backus, 18 Mich. 218; Johr v. Supervisors, 38 Mich. 536; Manufacturing Co. v. Vroman, 35 Mich. 310; Merrill v. President, etc. Id. 211; McLaughlin v. Wilks, 42 Mich. 553, 4 N. W. Rep. 268; County Treasurer v. Bunbury, 45 Mich. 79, 7 N. W. Rep. 704; Morford v. Dieffenbacker, 54 Mich. 603, 20 N. W. Rep. 600; Cragin v. Gardner, 64 Mich. 402, 31 N. W. Rep. 206. See, also, where such amendments have been allowed, the following: Kincaid v. Howe, 10 Mass. 203; Sherman v. Connecticut River Bridge, 11 Mass. 338; Blood v. Harrington, 8 Pick.552; Slater v. Nason, 15 Pick. 345; Wight v. Hale, 2 Cush. 486; Crafts v. Sikes, 4 Gray, 194; Lester v. Lester, 8 Gray, 437; Hutchinson v. Tucker, 124 Mass. 240; Smith v. Carney, 127 Mass. 179. Since it was an amendment which might have been made before judgment on One of the trustees elected at the same time resigned, and his place has not been filled. The defendant was elected treasurer of the subsidiary high court, and as such received into his hands considerable sums of money belonging to each of the funds above mentioned. His term of office expired when his successor was chosen at Chicago, at a regular meeting of the subsidiary high court, held in August, 1887. He gave bond to the trustees, as required by the general law. At that time Ezekiel McMurtry was permanent secretary, and after the Chicago meeting the executive council passed a resolution directing Mr. McMurtry to call upon Mr. Pinney, and request him to pay over the balance of money then in his hands. In pursuance of this resolution McMurtry made the demand, and Mr. Pinney declined to pay over the money demanded, but during the conversation expressed a willingness to pay over a portion,-some $2,250. The balance in his hands, as claimed by them, was something over $4,000, and amounted at the time of the trial, including interest at 6 per cent., to $4,933.78. The plaintiffs thereupon brought this suit to recover this money as the property of the subsidiary high court. The declaration is upon the common counts in assumpsit, and the commencement is as follows: "On the 1st day of November, A. D. 1888, Patrick Smith and John J. Thomas, trustees, for the use and benefit of the Ancient Order of Foresters, plaintiffs herein, by Conely, Maybury & Lucking, their attorneys, complain of Thomas Pinney, defendant herein, of a plea of trespass upon the case upon promises, filing this declaration, and entering rule to plead, etc., as commencement of suit." The promises in the several counts are stated to have been made to plaintiffs. The bill of particulars specifies the items as having been paid to defendant by the former treasurer of the association, as follows: "The following amounts of money paid to said defendant by James Bretherick, treasurer of the tenth executive council of the organization known as the Ancient Order of Foresters,' on or about the 17th day of August, A. D. 1885, for the respective funds of said organization, herein below mentioned: Endowment fund, $563.21; endowment management fund, $91.57; endow. ment reserve fund, $2,110; arbitration fund, $10.70; sick and funeral fund, $56.72; general management fund, $13,850.96; total, $16,683.16." Then follow several amounts claimed to have been paid to defendant by Ezekiel McMurtry, permanent secretary of the Ancient Order of Foresters, on account of the several funds, naming the amounts. The plea in the case was the general issue. Upon the trial, after the jury were impaneled, and the counsel made his opening to the jury, wherein he stated that the plaintiffs sought to recover moneys from Mr. Pinney remaining in his bands as ex-treasurer of the subsidiary high court of the executive council of the Ancient Order of Foresters, counsel for defendant interposed an objection to the introduction of any testimony under the pleadings in this case, and based his objec-motion, this court will regard it as hav ing been made after judgment, under the authority of section 7636, How. St.1 The defendant next contends that the plaintiffs are not entitled to recover under the evidence for the reason that the general laws and rules of the order do not authorize them to institute the suit; that they have shown no authority from the subsidiary high court to bring it. This question depends upon the organization of the association and the terms and conditions of the agreement by which its members are united. It appears in evidence that the defendant was and still is a member of the association. Unless there is some warrant of authority for one or more mem. bers of an unincorporated society, no member or number of members can maintain a suit for the benefit of the society to enforce a contract made in its name or for its benefit, or recover property belonging to such society; and the question here presented is whether, under the general laws introduced in evidence, the plaintiffs, as trustees for the subsidiary high court, are authorized to maintain this action. It must be confessed that the general laws are crude and lamentably wanting in matters of detail. The duties of the officers, of the executive council, and of the trustees are prescribed in the most general terms. There is no provision stating what the outgoing treasurer shall do with the funds on hand, nor to whom he shall hand over the books and papers in his custody. He is not required to deliver them to his successor, nor in express terms that he shall deliver the books and money to the executive council, which is the managing body, when the subsidiary high court is not in session. The only ways provided for withdrawing money from his custody and control are contained in section 2 of article 12, and section 12 of article 33, which have been both quoted. If the money is in the endowment fund, it is presumably true that it was deposited in some bank specified or selected by the executive council and trustees, in which case it cannot be withdrawn except by drafts or checks upon the same, as provided for in section 17 of article 33. And if it is in such bank, there is no testimony in this case which shows that the proper officers could not have withdrawn the money from such bank. There is no direct testimony in this case that any bank was selected. It may, however, perhaps be inferred from the testimony of Edmund T. Mack, who testifies that he was cashier of the Citizens' Savings Bank of Detroit, and that it paid out for the benefit of the order, at the Chicago meeting $15,600. The testimony of Mr. Greening is to the effect that when the accounts were audited in the usual way in August, 1887, just previous to the Chicago meeting, the amount 1 How. St. Mich. § 7635, provides that when a verdict shall have been rendered in any case the judgment shall not be stayed for any mistake in the name of any party. Section 7636 provides that the omissions in the preceding section enumerated, not being against the right and justice of the suit, and not altering the issue, shall be supplied by the court when judgment shall be given. then in defendant's hands was $20,499.69. If any money was in the defendant's hauds, and not in the bank and subject to draft or check, as provided for by section 17 of article 33, then it was subject to be drawn out of defendant's hands by virtue of section 2 of article 12. There is no testimony in this regard, showing that the defendant refused to pay any money in his hands, drawn in pursuance of section 2 of article 12. The only evidence that he refused to pay the money pursuant to any authority was his refusal to pay Mr. McMurtry, when he called upon him in pur. suance of the resolution passed by the executive council, but it does not appear that he was presented with any order signed by the subsidiary high chief ranger and two trustees, or the subsidiary high sub-chief ranger and two trustees, countersigned by the permanent secretary: and, until the proper order is drawn and presented to him, it is difficult to see how he is liable to suit for not paying it over. The trustees themselves have no authority to draw the money from his hands, and the subsidiary high court has not directed this suit to be brought by them to obtain the money from Mr. Pinney in this man ner. There is no testimony in the case tending to show any recognized custom with reference to the payment over by the retiring treasurer of the moneys in his hands to his successor in office. The general laws of the order have been introduced as containing the only method by which the money in his hands as treasurer are withdrawn. We think it was incumbent upon the plaintiffs to have shown some breach of duty on the part of defendant prescribed by the general laws of the society of which he was a member, before he can be compelled in a suit of this kind to pay over money in his hands. All the members of the association are bound by these general laws. The executive council cannot draw money from his hands simply by resolution. It requires an order, signed as provided for in section 2 of article 12, or by section 17 of article 33. We think the second objection taken to the recovery in this cause is valid, and that the judgment must be reversed, and a new trial ordered. The other justices concurred. PEOPLE ex rel. ELLIS, Attorney General, V. LENNON, (Supreme Court of Michigan. July 3, 1891.) CHIEF OF POLICE-ELIGIBILITY-QUO WARRANTO. 1. The charter of West Bay City, Mich., provides, among other things, that "no member of the common council shall, during the period for which he was elected, be appointed to or be competent to hold any office of which the emoluments are paid from the city treasury. Held, that an alderman whose term of office had not expired by limitation was ineligible to hold the office of chief of police, who is appointed by the common council and paid from the city treasury, although he had resigned before the appointment was confirmed. 2. Where the office of chief of police is created by city charter, which attaches thereto certain functions independent of those prescribed by ordinances, and provides that the incumbent shall be removed only upon complaint and con McGrath, J. Respondent was elected alderman of West Bay City for the term of two years from and after April 10, 1890. He entered upon the duties of said office, and served till April 13, 1891, when he re. signed, and was by the common council appointed chief of police of that city, which office he now holds. The attorney general has filed an information in the nature of a quo warranto, claiming that respondent's appointment was illegal. Section 15, tit. 3, Charter, provides "that the common council shall, on the 2d Monday in April, 1891, appoint one chief of police, and such number of policemen with pay, as they shall deem neces any member of the police force, but no member of the police force shall be removed, except as herein before provided, unless two-thirds of the members elect of the common council shall first vote in favor of such decrease in the numbers of policemen or officers." At a regular meeting of the common council held April 13, 1891, 12 aldermen, including the respondent, were present. A resolution was adopted providing "that this council now proceed to appoint the city officers in the order hereinafter set forth: The chief of fire department, chief of police, "etc.; and the respondent voted in favor of its adoption. At the same meeting two ballots were taken for chief of police. On the first ballot respondent received 6 votes, and one Dunnigan received 5, and on the second ballot respondent received 7 votes, and Dunnigan 4; whereupon respondent was declared elected. But the respondent did not vote upon either of these ballots. A resolution was then offered "that William Dunnigan be, and he is hereby, appointed chief of police; but said resolution did not prevail, there being 4 yea and 3 nay votes. The respondent, Lennon, voted against the adoption of said resolution. Immediately thereafter the respondent tendered his resignation of the office of alderman, and the same was accepted by the council. At a meeting of the council held April 20, 1891, at which there were present 11 aldermen, a resolution was offered appointing respondent to the office of chief of police. The resolution was adopted by a vote of 7 to 4. Respondent claims to hold his office by virtue of said appointment. Two questions are raised: First, is the office of chief of police under this charter one which is properly the subject of this proceeding? The statute provides that an information in the nature of a quo warranto may be filed "when any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office in any corporation created by the authorities of this state." How. St. § 8635. The incumbent of a municipal office created by the statute, who is elected or appointed in the manner thereby prescribed, having a definite term fixed by statute, and who exercises functions which are derived from the charter, in addition to those derived from the bylaws of the municipality, must be deemed a public officer, within the meaning of this statute. Such an officer is a constituent part of the machinery of government, exercising functions prescribed by sovereign sary, and shall fix and limit the term of office of the persons so appointed in accordance with the provisions of this act." Section 18 of title 5 provides: "The police force of the city shall consist of a chief of police, and such number of policemen with pay, and such a number of policemen and watchmen without pay, as the common council shall appoint, as in this act provided. Each member of the police force appointed by the common council shall, before entering upon the duties of his office, take and subscribe the oath prescribed by the constitution of this state, and file the same with the recorder. After filing such official oath, the chief of police and each policeman so appointed shall hold his office during good behavior, except as herein otherwise provided.' Section 19, tit. 5, provides that the "police committee shall have power to try and determine all complaints against any member of the police force, and upon conviction of any member of the police force by a vote of a majority of the members of such committee of incompetency, misbehavior, insubordination, neglect of duty, or violation of any of the rules or regulations made by the common council for the government of the police department, such member shall be suspended from duty, and shall be report-authority, and which are independent of ed by such committee to the common council, together with a report of his conviction; *** and if by a majority of the members elect of said common council such conviction be confirmed, such person shall be removed from office, and the vacancy thus made may be filled by the common council forthwith; in case such conviction is not confirmed as aforesaid, such person shall be reinstated. * * The common council shall have power at any time to diminish the number of policemen and police officers employed by the city, by dismissing and removing * local control. The chief of police of West * |