police regulations applicable to the defendant plank-road company. They are reasonable and proper, and for the protection of the people, and to prevent injury thereto, such as the charter of this company should be held subject to, within the rule laid down in Carver v. PlankRoad Co., supra. They cast upon the township a duty relative to said road, a neglect of which may subject the township to liability for injuries resulting to persons and property from defects therein; and, upon the commissioner, duties, a neglect of which may subject him to a penalty, and prosecution by information or indictment, under 1 How. Stat. §§ 1399, 1400. All public officers, even if not expressly authorized by statute, have a capacity to sue, commensurate with their public trusts and duties. Berrien Co. Treasurer v. Bunbury, 45 Mich. 79; Auditor General v. Railroad Co., 82 Mich. 429. The bill is not filed to decree a forfeiture of the franchises of the company. It is filed to enjoin it from using on said road, and constructing a roadbed thereon of, material not such as the statute requires, but such as, if used in the construction of a roadbed, as it is alleged they threaten to, will render said roadbed dangerous, unsafe, and impassable with loaded teams. In other words, it is filed to enjoin the creation of a threatened nuisance, dangerous to the traveling public. I cannot assent to the claim of the defendant plank-road company that a court of equity may not enjoin it from rendering the road dangerous and unsafe, at the instance of officers charged with the duty of seeing that it is maintained and kept in good repair, safe for travel. The allegations of the bill as to the effect on the road of the acts threatened are, by the demurrer, admitted. A court of equity, in virtue of its general jurisdiction over trusts, and to afford remedies in cases where courts of law are inadequate to grant relief, has jurisdiction to grant relief against a corporation upon the same terms it might against an individual under similar circumstances. Stamm v. Benefit Association, 65 Mich. 317. And in my opinion, the township and its authorities, upon whom is charged the duty of seeing that the road is kept safe for the traveling public, have such an interest in the matter as makes them proper complainants to the bill, and that the remedy provided by 1 How. Stat. § 3586 (section 23 of the act of March 13, 1848), is not at all adequate. High, Inj. § 1555; Town of Burlington v. Schwarzman, 52 Conn. 181; Craig v. People, 47 Ill.

496; Easton & A. R. Co. v. Inhabitants of Tp. of Greenwich, 25 N. J. Eq. 565; Inhabitants of Springfield v. Railroad Co., 4 Cush. 63. In view of the pleadings, the admission by the demurrer of the truth of the allegations of the bill as to the effect of the use of the material or gravel threatened to be used upon the road by the company in the construction of a roadbed, and in place of gravel,-that it will render said roadbed dangerous, unsafe, and impassable with loaded teams,—I think the motion to dissolve must be denied.

"In view of the importance of this matter, both to the parties and to the public, the questions whether the material threatened to be used will make the road dangerous and unsafe; whether this court, in the exercise of its discretion, can waive any of the requirements of the act of 1879 as to the quality of the gravel used as a substitute for plank in the construction of a roadbed, in case it should be satisfied that thereby a good, firm, and hard road can be made,-I think the court ought to adopt such a course as will tend to have these questions, as well as the one as to the power of the court to enjoin finally, determined as speedily as is consistent with due regard for the rights of those interested; and to that end I will hear, upon settlement of the order now made, the suggestions of counsel.

66

My attention has been called to the fact that the injunction issued on the amended bill restrained the use, if literally applied, of any material, including plank, 'except gravel, or stone so broken,' etc., from which the dirt, sand, etc., shall be sifted and removed.' This was a clerical error, and not in accordance with the prayer of the bill. The injunction should be so modified as to permit the use of plank in the construction of any roadbed."

We do not deem it necessary to determine just how far the amendment of 1879, that required the gravel used to be not less than nine inches deep, and that "the dirt, sand, and stones over one and one-half inches in diameter shall be sifted out and removed from the same" (1 How. Stat. § 3594), affects this company. Before doing that, we should desire more time for the examination of the authorities than is now available. However, in view of the allegations of the bill of complaint that the proposed

action of the defendant will make the roadbed dangerous, unsafe, and impassable with loaded teams, which bill was demurred to by the defendant, and which had the effect of admitting the allegations of the bill to be true, we have no doubt that, under the police power given over public highways, it was competent for the commissioner of highways, and the township of Erin, to commence this proceeding, and for the circuit judge to issue the injunction. Neither have we any doubt that the circuit judge has a right to modify the injunction, if he is satisfied, from the showing made before him, that to do so would be to the advantage of the public, and would not result in the creation of a threatened nuisance, dangerous to the traveling public. We place his right to issue the injunction and to modify it, in view of the pleadings and the affidavits accompanying them, upon the ground that it is a proper exercise of the power of the court to see that the police regulations given by the statute over highways are enforced. See authorities cited by Judge Eldredge. The writ is denied.

GRANT, MONTGOMERY, and HOOKER, JJ., concurred. LONG, C. J., did not sit.

SMALTZ v. BOYCE.1

1. INVALID JURY LISTS-AUTHORITY OF CIRCUIT Judge. Under Act No. 201, Pub. Acts 1893, authorizing the circuit judge to direct the return of new jury lists when the current lists are declared illegal for any reason, it is competent for the circuit judge to make such determination on his own motion, and to order the return of new lists.

2. JURY-CHALLENGE TO ARRAY-INSTRUCTIONS OF CLERK TO

RETURNING OFFICERS.

A jury list is not rendered invalid by the fact that the county clerk instructed the returning officers not to return the names of persons over 60 years of age, since by section 7571, 2 How. Stat., such persons are exempt from jury duty, and section 7555 forbids the listing of persons so exempt. Whether even an erroneous instruction by the clerk would support a challenge to the array,—quære.

3. SAME-VALIDITY OF ORDER FOR NEW LISTS.

The fact that an order for the return of jury lists directs the lists to be made by the aldermen and "supervisors," instead of aldermen and “assessing officers," of wards in cities, is not ground for challenge to the array, when it does not appear that any of the supervisors who returned the lists were not assessing officers.

4. SAME-VALIDITY OF LIST.

It is not ground for challenge to the array that the jury list from a given ward was returned by the supervisor and one alderman, where it does not appear that they did not constitute a majority of those charged with the duty of making the return.

5. SAME.

The fact that jury lists do not show that the names were taken from the proper assessment roll is not ground for challenge to the array, where it does not appear that any of such jurors were persons who were not assessed on the roll.

'Rehearing denied July 8, 1896.

6. SAME.

A jury list for a given ward is not void merely because it is certified by the supervisor alone.

7. Master and Servant-WHEN RELATION EXISTS.

Men employed to work in a logging camp by the owner's agent, and upon the owner's credit, are the servants of the

owner.

8. SAME SCOPE OF EMPLOYMENT.

Whether the foreman of a logging camp, in causing the men under his supervision, when not otherwise employed, to burn the brush on the land, for the purpose of clearing it, was acting within the scope of his employment, so as to render the owner liable to a third person for damages sustained by reason of the setting of the fires, is a question for the jury, where the time of the men while so employed was kept and paid for by the owner, and he received the benefit of the crops thereafter raised.

9. OPINION EVIDENCE-ORIGIN OF FIRE.

A witness cannot give his opinion that the fire by which plaintiff's property was destroyed came from fires set on defendant's land.

Error to Bay; Maxwell, J. Submitted April 22, 1896. Decided May 19, 1896.

Case by Michael Smaltz and others against Jonathan Boyce and another for the loss of property by fire, alleged to have been caused by defendants' negligence. From a judgment for plaintiffs, defendant Boyce brings error. Reversed.

Simonson, Gillett & Courtright, for appellant.
McDonell & Hall, for appellees.

HOOKER, J. The most important legal question in this cause relates to the jury; a challenge to the array having been interposed, to which a demurrer was filed. The record shows that upon November 24, 1894, at a time when no jury cases were pending before said court, an order was made, upon the court's own motion, as follows: