was made, and before it was determined, another such motion, because of the alleged disqualification of jurors, was made and argued. This argument must have refreshed the memory of the judge upon the history and facts of the case. Under these circumstances, we cannot doubt that the judge was fully prepared to decide the motion when he decided it, and that further discussion of the case would not have aided him in reaching a correct conclusion. These views dispose of all the exceptions alleged for reversal adverse ly to the plaintiff in error. Hence the judgment of the circuit court must be affirmed.

WILEY V. BEACH, Judge. (Supreme Court of Michigan. June 10, 1891.) MANDAMUS-WHEN LIES-TO COURTS.

Mandamus will not lie to compel a circuit judge to review a decree under which petitioner's land was sold for drainage taxes, and allow petitioner to answer, etc., on the grounds that the taxes were illegal, and that petitioner was not served with process in the proceedings to sell, and did not know of the decree and sale until afterwards, where there is no allegation that the petition to sell and list of lands were not duly advertised, as the statute authorizes on appeal.

Application for an order to show cause why a writ of mandamus should not issue to compel respondent to allow relator to file an answer to the petition of the auditor general for the sale of lands of relator, etc.

F. S. Wheat, for relator.

PER CURIAM. Relator states that certain drain taxes were laid upon his lands that are illegal; that they were returned to the auditor general, and are included in the proceedings to sell under the law authorizing proceedings by petition of auditor general in chancery; that the land lies in Tuscola county, and he resides in Lansing, Ingham county; that no personal service of subpoena was had upon him, and that a decree was made and land sold in 1890, and he did not know of such fact until March, 1891. He asserts that | the drain tax is illegal, and asks for a mandamus to compel Hon. WATSON BEACH, the judge of the circuit court for the county of Tuscola, to review the decree, and give him leave to answer, etc. The statute authorizes an appeal. There is no allegation that the petition and list of lands were not duly advertised. Without now passing upon the question of the validity of the proceeding,-because they are not involved,—we think the remedy by mandamus is not proper.

Ross v. BARBER, Recorder. (Supreme Court of Michigan. June 10, 1891.) MUNICIPAL CORPORATIONS-OFFICERS-Aldermen.

The provision of the charter of Bay City that the office of alderman shall become vacant by the removal of the alderman from his ward applies to a removal by change of ward boundaries by the legislature.

Application by George W. Ross for mandamus to compel James S. Barber, record

er of Bay City, to draw an order in favor of relator for compensation for services as alderman.

James Van Kleeck, for relator. John C. Weadock, for respondent.

PER CURIAM. The present legislature changed the boundaries of the wards of Bay City. Previous to such change, relator was an alderman of the Fifth ward, and resident therein. By the change of boundaries relator is no longer a resident of the Fifth ward, but now resides in the Fourth ward, as reconstructed by the legislature, which is separated from the Fifth by the Eighth ward. The office of alderman, by the charter, becomes vacant by the removal of the alderman from his ward. We think the removal provided for applies to removals by change of boundaries by the legislature as well as a voluntary removal by the alderman. The reasons apply equally to either mode of removal. In either case the office is vacant. We do not determine the right of the mayor to fill the vacancy by appointment. Stow v. Common Council, 79 Mich. 595, 44 N. W. Rep. 1047.

SPOON V. CHICAGO & W. M. Ry. Co. (Supreme Court of Michigan. June 5, 1891.) CONVERSION-QUESTION FOR JURY.

Where, in a suit against a railway company for the value of the rails taken by it from à side track on plaintiff's land, it appears that the side track was constructed under a lost written contract, whereby plaintiff conveyed a right of way to defendant in consideration of its putting a depot and side track on his land, it is proper to instruct the jury that they must determine from all the evidence whether under the contract the side track belonged to plaintiff or to defendant, and that, if they find it belonged to plaintiff, he is entitled to recover the value of the rails at the time they were taken up and converted by defendant.

Error to circuit court, Kent county; WILLIAM E. GROVE, Judge.

Smith, Nims, Hoyt & Erwin, for appellant. G. A. Wolf and McGarry & McKnight, for appellee.

MCGRATH, J. In 1870 the Chicago & Michigan Lake Shore Railroad Company projected a line of road from St. Joseph to Muskegon by way of Holland, Spoonville, and Nunica. This company sought aid and assistance along its proposed line. Among others, it applied to plaintiff for right of way and assistance. The negotiations resulted in a deed of the right of way across plaintiff's farm, involving about 15 acres of land, the payment to the railroad company of $2,000, the establishment and construction of the main line of railroad, the establishment of a depot, and the building on plaintiff's land of a side track, from the main line to plaintiff's mill. After the construction of the railroad and the establishment of the depot and side track plaintiff bought a large tract of pine land, chiefly valuable for timber, and expended a large sum of money in the repair of his mill, preparatory to carrying on extensive lumbering opera. tions, expecting and relying upon perma

nent railway facilities and advantages at Spoonville. In order to raise money for the construction of its road the railroad company mortgaged its present and future to be acquired property. This mortgage was subsequently foreclosed, the property bid in by a purchasing committee, a new company organized, connecting lines consolidated therewith, and there finally emerged from such foreclosure and reorganization a consolidation under the name of the Chicago & West Michigan Railway Company. During the process of foreclosure the line was operated by one George Kimball as receiver, and after the reorganization and consolidation Mr. Kimball became vice-president and general manager. The last-named company, the present defendant, assumed all legal duties and obligations, both public and private, of the several consolidated companies, and became the owner of and vested with all the property, real and personal, of each of said companies. The mortgage which was foreclosed was given on the 12th day of October, 1870, and the deed of the master in chancery was executed on the 15th day of November, 1878. The consolidation of the defendant and the connecting lines above mentioned occurred October 1, 1881, and the defendant has ever since continued to exercise the duties, franchises, and privileges of a railroad company. The deed from plaintiff to the railroad company for the right of way was dated October 17, 1870, but was not delivered till about the time it was recorded,--January 11, 1871. Plaintiff was not made a party to the foreclosure proceedings, and, if the mortgage attached to the property deeded by him to the railroad company, it attached only as after-acquired property. About Sunday, December 4, 1881, Mr. Kimball, as general manager, directed Thomas Murphy, who was at that time train-master and road-master of the defendant, to get a gang of men together, and proceed to Spoonville, get there by daylight Sunday morning, and get the iron off from plaintiff's land before night. Mr. Murphy, under these instructions, proceeded to do as he was directed, and commenced early in the morning, and removed the iron from the side track in question. Plaintiff, hearing the noise and confusion, went out and learned what was being done, and forbade the removal of the iron, claiming it as his own. The defendant's agents and servants paid no attention to him, but, on the contrary, removed all but the ties from the side track, and converted the iron to its own use. The company further took up the iron on the main line, and at once discontinued the running of trains by the way of Spoon ville, and thus denied to plaintiff the railway facilities at that point, the nearest railroad station being Nunica, about three miles north. Upon the trial, the case naturally divided itself into two general branches: (1) That relating to the right of recovery for the discontinuance of railway facilities generally at Spoonville; (2) that relating to the right of recovery for the conversion of the iron on the side track. The trial court withheld from the consideration of the jury the first branch

of the case, and directed them that the defendant was not chargeable at all with any duty arising out of the contract between plaintiff and the Chicago & Michigan Lake Shore Railroad Company. Upon the second branch, however, the trial court submitted the case to the jury to determine whether the railroad company or plaintiff owned the iron. The jury found for plaintiff, and defendant appeals.

To the ruling on the first branch of the case plaintiff alleged exceptions, and has taken a cross-appeal, and, in the event that this case is reversed upon other grounds, desires to have the legality of the trial court's ruling upon this branch of the case reviewed; but as the plaintiff is anxious to bring the litigation to an end, and the jury have found a verdict in his favor for the value of the iron converted, he desires upon the whole record to have the case affirmed. The plaintiff insisted that under the agreement made with the railroad company, the side track, upon its construction, became plaintiff's sole property; that the deed to the company conveved a right of way for the main line only, and that the side track was constructed upon plaintiff's property; that, inasmuch as the side track was the property of the plaintiff, it was not covered by the mortgage given before its construction, which was subsequently foreclosed, and that the side track was a part of the consideration for the grant of the right of way and the payment of the sum of $2,000. The contract was in writing, but its loss was shown, and its contents proved by parol. The only questions raised by defendant's brief are: (1) That the mortgage being for the entire road, the rails of which the side track was constructed became a part of and subject to the mortgage by accession; and (2) that the contract as proven did not show that the title of the iron upon the side track should pass to plaintiff. If, as a matter of fact, the agreement between the company and the plaintiff was that the side track was to become the property of plaintiff, neither the mortgagee nor the purchaser upon the foreclosure of the mortgage acquired any lien thereon or title thereto. The court instructed the jury very fully and fairly upon this point, and said to the jury: "It is for you to say whether the side track belonged by that contract to plaintiff or to the railroad company, and in determining that question you will consider the evidence in the case as to what the contract was when originally made. I think it also proper for you to consider the testimony in the case relating to the custom generally as to the question of ownership of side tracks when constructed by railroad companies for the convenience of mill-owners or manufacturers. That testimony was opened upon the part of the defendant in the case, and testimony was subsequently put in by the plaintiff's counsel, and I think it is proper for you to consider it in connection with the evidence relating to what the real contract was, which, I believe, was reduced to writing and lost. If, on consideration of this evidence,-all the facts and circumstances of the case as shown by the evidence,-you

find that the railroad company under that contract was the owner of the side track, that the title did not pass to plaintiff, then your verdict will be for the defendant. If, on the contrary, you find that the plaintiff became the owner of that side track by virtue of that con tract, he is entitled to recover, and his measure of damages will be whatsoever you find was the value of the iron that was taken up and removed by the defendant and converted to its own use, on the 4th day of December, 1881, with interest thereon to the present day at 6 per cent." There was no error in this charge. The jury found a verdict for the value of the iron, with interest, and that finding involved the further finding that the side track was to become, and did become at the time of its construction, the property of the plaintiff, and the mortgage did not attach. The judgment below is affirmed, without costs to either party. The other justices concurred.

HAMILTON PROVIDENT & LOAN SOC. v. NORTHWOOD.

(Supreme Court of Michigan. June 5, 1891.)

MORTGAGES-ACTIONS ON-EVIDENCE.

1. In an action for the amount due on a mortgage defendant alleged that the land mortgaged, which was situated in Canada, had been previously taken possession of by plaintiff, and sold for $3,250. Held, that a letter to defendant from plaintiff's general solicitors, notifying him that the property was about to be sold for $3,250, and a summons issued by the same solicitors and served on defendant, to which were attached particulars of the claim then sued on, showing that the action was brought on the mortgage in suit, less a credit of $3,250, were admissible to show a former sale of the property.

2. After such evidence, the burden was on plaintiff to show that there had been no sale of the property.

3. It was error to allow a witness for plaintiff to testify that he had looked at plaintiff's books, and found that there had been no sale of the property.

4. Where a witness for plaintiff testified that there had been no payments or credits on the mortgage, it was proper for defendant to ask him on cross-examination what he knew, if anything, about the former suit.

Error to circuit court, Wayne county; C. J. REILLY, Judge.

Marston, Cowles & Jerome, (H. E. Spaulding, of counsel,) for appellant. Bowen, Douglas & Whiting, for appellee.

MORSE, J. July 11, 1882, F. Marx, a resident of Chatham, Ontario, sold and conveyed to the defendant, Northwood, a piece of land known as part of “Block B, on King street, in Chatham.' The consideration of this sale was $5,000, and the deed contained a covenant that Northwood should have quiet possession of the premises, free from all incumbrances. Before this Marx had given a mortgage, covering this and other lands, to the Merchants' Bank of Canada for $43,500. Northwood, at the time of the sale, executed to the said Merchants' Bank a mortgage upon the land for $5,000, in payment of the purchase price of said land. This mortgage contains, among others, the following covenants: “First. That the

mortgagor will pay the mortgagee the sum of $5,000, with interest at six per cent. per annum. Second. That the mortgagor has a good title in fee-simple to the lands, and has the right to convey them; and that on default the mortgagee shall have quiet possession of the premises, free from all incumbrances." It also contains a proviso "that the mortgagee, upon default for payment for one month, may, on giving one month's notice, enter on and lease or sell the said lands: provided, further, that in case default be made in the payment of said principal or interest, or any part thereof, for three months after the same became payable as aforesaid, the power of sale, herein before given, may be exercised without notice, and that any sale or sales made under the power hereinbefore contained shall, notwithstanding any irregularity in the exercise thereof, be held and taken to be valid, and within such power, as regards the purchaser or purchasers at such sale or sales." No cash being paid by Northwood on this purchase, the Merchants' Bank did not release the property from the Marx mortgage. It was understood that the bank would hold the Northwood mortgage as collateral security to the Marx mortgage, with the distinct agreement that upon payment of the Northwood mortgage both mortgages were to be discharged from the lands purchased by Northwood. This agreement continued down to December 16, 1885, when the bank sold the Northwood mortgage to the plaintiff in this suit. Northwood signed the assignment of the mortgage to plaintiff. This assignment recited the aforesaid agreement, and also that Northwood desired to have the mortgage assigned to plaintiff, and to release the Merchants' Bank of Canada from its covenant to carry out such agreement; but the assignment also contained a covenant that upon payment of the mortgage debt the lands should be freed from both mortgages. At this time nothing had been paid upon the mortgage. This suit was commenced November 15, 1889, to recover from Northwood the amount due upon this mortgage. It is admitted that no payments have ever been made upon it, but the defendant claims that the lands in 1886 were taken in possession by the plaintiff, he handing the keys of the building or buildings thereon to plaintiff; that a sale was had without notice to him, at which sale the premises brought the sum of $3,250. The circuit judge, Hon. C. J. REILLY, of the Wayne circuit, directed a verdict for the plaintiff for the full amount of the mortgage debt and interest, to-wit, $6.675. To sustain his claim of a sale of the premises the defendant offered in evidence a declaration filed May 3, 1888, in a suit between plaintiff and defendant, embracing the same subject-matter as the present suit, filed by Bowen, Douglas & Whiting, as plaintiff's attorneys, said firm also being plaintiff's attorneys in this suit. Said declaration stated that the lands described in the mortgage were sold under the power of sale contained in said mortgage, at Chatham, September 30, 1886, for the sum of $3,250, which had been applied in reduction

of the mortgage indebtedness, and claimed an unpaid balance due of $3,050. He also offered Samuel T. Douglas as a witness, and proved by him the filing of this declaration, and that his firm, Bowen, Douglas & Whiting, had been employed to collect this mortgage debt of defendant; but Douglas stated on his own motion that their firm never had any authority to make any admissions for plaintiff as to the sale of this property, or any amount being realized on it by sale or otherwise, or any credits to defendant. It also appeared that the suit in which this declaration was filed was discontinued before the commencement of the present suit. The declaration was permitted to be read in evidence, subject to plaintiff's objection. The defendant then offered to prove the value of the land, that defendant did not have any notice of the sale, and what the land sold for. The testimony was excluded, and exception taken. It was then shown by the testimony of a Canadian barrister that in the case of a sale under the power of sale in the mortgage, without notice to the mortgagor, the mortgagee, under the laws of Canada, could not maintain an action upon the covenant in the mortgage for the deficiency. It was also shown that Crerar, Muir & Crerar were the general solicitors of the plaintiff, and the following letter from said firm to defendant was offered in evidence and excluded: "William Northwood, Esq., City of Detroit: As you are aware, the property situated in the town of Chatham, and described in the mortgage given by you to the Merchants' Bank of Canada, dated the eleventh day of July, 1882, and registered in the registry office for the county of Kent on the 7th July, 1883, as No. 9,788, was offered for sale by public auction. It was not sold, however, then. It is about to be sold now to one Jacob Horatio West for $3,250. CRERAR, MUIR & CRERAR, Solicitors for the Assignee of the Merchants' Bank of Canada. Hamilton, November 8, 1886." This letter was proven to be in the handwriting of the leading member of said firm. A summons issued by the same solicitors in a suit in Hamilton, Can., and served upon defendant, was also offered in evidence. In the particulars of the claim sued upon, attached to the summons, the suit being by the plaintiff against the defendant, it appears that the action was brought upon this mortgage, less a credit of $3,250 for sale of the land. A statement of the claim, afterwards filed in this same suit, was also offered, in which the same thing appears. This suit was commenced November 5, 1886. The proffered instruments were both rejected. It was also shown that the rental value of the property in 1884 or 1885 was $650 per annum, and that plaintiff bad collected the rents since 1886. The defendant also testified that he knew that plaintiff held a judgment against him in Canada for the amount of the mortgage, less $3,250, the sum for which the land was sold; but no showing was made of any judgment entry or record by certified copy or otherwise except the statement of the defendant. We think the letter of Crerar, Muir & Crerar should have

been admitted in evidence; also the summons issued and statement of claim filed in the Canadian suit. This was some evi dence tending to show a sale of the property, and whether or not, under the laws of Canada, the plaintiff could sue for the deficiency, the defendant at any rate would be entitled to a credit of the amount the land sold for. There being evidence tending to show a sale of the property, it devolved upon the plaintiff to show that there had been no sale. This was attempted, but another error was committed in admitting hearsay evidence. Marx was allowed to testify that he knew there had been no sale; that he attended at two attempts to sell, and both times no sale occurred, the property being withdrawn because the bids were inadequate; and that three months before the trial he went to the office of the plaintiff at Ham. ilton, and looked at the books of the plaintiff, and found there had been no sale. This last testimony was incompetent. It is argued that, if there had been a sale of the property, the defendant could have shown such sale, and could not claim the right of going to the jury without showing it by some one who had knowledge of such sale; but the evidence whether or not there had been a sale was in the hands of plaintiff. When defendant showed papers served upon him by the general solicitors of plaintiff in a lawsuit, stating that a sale had been made, he was entitled to have the same go to the jury as admissions by the plaintiff of such sale, and it was the duty of the plaintiff to prove that these admissions were made by mistake, or that there was no authority in the solicitors to make them, and that in fact no sale had been made; and this latter fact should have been shown by competent evidence, and it was not. Nor was it satisfactorily shown that Crerar, Muir & Crerar had no authority to make these admissions. Mr. McCoy testified that he was an inspector of the plaintiff company, and his duties were inspecting securities, and looking after the assignment of mortgages after they came into the house. He undertook to testify that, although Crerar, Muir & Crerar were the general solicitors of plaintiff, they had no authority to make admissions for the plaintiff in respect to the amount of mortgage debts, but on cross-examination it plainly appeared that all he knew about their authority was that he did not know whether they had it or not. It was shown by a Canadian barrister that when a mortgagee takes possession of property under such a mortgage as the one in this case such mortgagee must account to the mortgagor for the rents and profits while he holds it, until the land is sold. If this is the law in Canada, then the judgment in this case is erroneous, as there has been no such accounting, or no deduction from the same on account of such rents and profits. We also think that it was proper for the defendant to show by McCoy on cross-examination what he knew, if anything, about the suit brought in Canada, as McCoy had testified that there had been no payments upon this mortgage, or any credits. McCoy also testified that no

credit had ever been given the defendant by reason of a sale of the property, but all he knew about it was that such credit had never been entered on any of the plaintiff's books, that he had seen. The judgment is reversed, and a new trial granted, with costs of this court to defendant. The other justices concurred.

CAMPAU V. BOARD OF PUBLIC WORKS OF CITY OF DETROIT.

(Supreme Court of Michigan. June 5, 1891.)

MANDAMUS-MUNICIPAL BOARDS-PLATS.

1. Mandamus will not lie to compel the board of public works of a city to vacate the approval of a certain plat, where neither the persons who made the plat, nor other persons shown to have purchased lots according to the plat, are parties to the proceeding.

2. Under the charter of the city of Detroit, § 304, which provides that the board of public works cannot change plats which have been approved by it unless authorized by the common council, it has not power to vacate plats.

3. One who has complied with the statute in making a plat of land, and has made the streets thereon to correspond with the general plan of the city, is entitled to mandamus to compel the board of public works to approve his plat, and it is immaterial that his plat shows a public alley only 20 feet distant from an alley on another plat, as the city is not obliged to care for such alley.

Application for maudamus.

Dickinson, Thurber & Stevenson, for relator. John J. Speed, for respondent.

GRANT, J. The relator petitions for the writ of mandamus to compel the respondent to approve a plat of certain land owned by him, which he has duly executed, and to vacate the approval of a plat of adjoining lands made by Homer W. and William R. Candler. The Candler plat was approved by the respondent, and recorded. The writ must be denied, in so far as it prays for the vacation of this plat, for three reasons: (1) Neither the Candlers nor other persons who are shown by the return to have purchased lots as established by this plat are before the court. Their interests would obvious. ly be affected by granting the order asked. (2) The respondent has no power to vacate plats. After plats have been approved and adopted by the board it cannot even change them, unless authorized by a resolution of the common council, passed by a three-fourths vote of the members. Section 304 of charter. Mandamus is not the proper remedy in such cases, and especially where the rights of others have become involved. (3) The relator has no such interest as would entitle him to the writ.

The writ must issue if relator desires to compel the approval of relator's plat. He has complied with the statute, and the streets upon his plat are made to correspond with the general plan of the other streets of the city, as made and adopted by the respondent. Any owner of lands is entitled to have his plat, when properly executed in accordance with this general plan, approved by the respondent. The reason given for deelining to approve is that the relator's plat shows a public alley on his land 20

feet north of the public alley upon the Candler plat; and that, as the alleys in the city are cleaned and cared for at the public expense, it was undesirable, and not for the public interest, that the alley on relator's plat should be permitted. The city is under no legal obligation to assume that burden. The fact that the city does assume it affords no legal excuse to respondent for declining to approve the plat. The board of public works does not possess the power to direct where an owner of land shall establish un alley. He may establish it where he pleases, so long as he interferes with no public or private right. No costs will be allowed. The other justices concurred.

BRESSON v. MUSSELMAN et al.

(Supreme Court of Michigan. May 21, 1891.) ASSIGNMENT FOR BENEFIT OF CREDITORS - WHAT CONSTITUTES.

A transfer in discharge of an indebtedness by a debtor to one of his creditors of all of his property except the homestead does not constitute a common-law assignment within the meaning of How. St. Mich. § 8739, providing that "common-law assignments for the benefit of creditors," with preferences, are void. Following Sheldon v. Maun, (Mich.) 48 N. W. Rep. 573.

Error to circuit court, Kalamazoo county; GEORGE M. BUCK, Judge.

Earle & Hyde, for appellants. Tuthill, for appellee.

O. T.

LONG, J. This is an action of replevin. Defendants Musselman & Widdicomb are wholesale grocers of Grand Rapids, and had sold goods in the year 1890 to a retail grocer at Kalamazoo, named Henry J. Bresson, a brother of the plaintiff. June 14, 1890, Henry J. Bresson, then owing about $800 for goods which were put into a stock at Kalamazoo, transferred all his property, consisting of his stock of groceries, horse, wagon, etc., to his brother, the plaintiff, in payment of an alleged indebtedness of about $950. The transfer was by writing and a bill of sale, and was absolute to convey the title of the entire property. The possession of the shop was at once turned over to plaintiff, who continued the business in his own name. The sale by Henry J. Bresson to plaintiff covered all his property except a city lot with a house and store thereon. Henry J. Bresson was then, and still is, a married man, and lived in the house on said lot. This real property was mortgaged at the time for $900, and was worth not to exceed $2,400; so that what Henry J. Bresson had leit of his property, either real or personal property, was this homestead, covered by a mortgage, which exceeded the excess over $1,500 allowed by law as exemption. Defendants Musselman & Widdicomb, on the 15th of August, 1890, were judgment creditors of Henry J. Bresson for $237.39. August 19, 1890, they sued out executions on their judgments, and placed them in the hands of defendant Downay, a constable of Kalamazoo, who on August 21, 1890, levied upon the stock of goods in question, which were then in the possession of plaintiff, and who claimed to own them under the sale from