allowed to recover a portion of that amount. The only ground of liability set up was that this was one of the firm assets. If so the original owners of the debt were Learned himself and his copartners. They could not have sued him at law on the claim, because a man cannot sue himself, and it is not possible for an assignee to sue where his assignor could not do so. If he could do so it would not help this case, because the whole claim has not been assigned, and there is no principle which will allow a joint owner of a cause of action by individual assignment to introduce a new joint owner into the contract.

Moreover, it is a general rule of the law of partnership that the whole settlement of claims between the firm and single partners belongs to a court of equity, where there are more than two partners, and must be disposed of, in such transactions as the present, on a general accounting. Elder's Appeal, in Rosier's Estate, October Term, 1878. There is no principle which will sustain the recovery for the item referred to, or any part of it.

The judgment must be reversed, with costs, and a new trial granted.

(The other justices concurred.)

FREDERICK S. AYRES and others, vs. BENNETT RICHARDS and others.

Filed October 21, 1879.

Certain proceedings for laying out a highway considered and set aside. A private way cannot be converted into a public way without full compensation to the owner.-[Ed.

Certiorari to highway commissioner.

James H. Hall and Atkinson & Atkinson, for plaintiff in certiorari.

Winsor & Snover and H. B. Carpenter, for defendant in certiorari.

MARSTON, J. The proceedings of the commissioner in laying out a highway across relator's land are brought here by writ of certiorari for review. This road, as laid out, commences on what is called Spring street, running thence in a northerly direction, across relator's land, some nine chains, to the quarter line, where it terminates. There is no highway laid out on the quarter line, or running to it, to which the public can have access from the proposed highway, nor is

there any one residing on the line thereof. If this road is opened as laid out by the commissioner, the only use which can be made of it by the public, or by any person, without trespassing on private property, would be to travel thereon from Spring street to the east and west quarter lines, and then retrace their steps back to Spring street, from whence they started. The road as a highway can be of no practical use to even a single individual until in some way extended or connected with some existing or hereafter to be established highway. It may be that there are persons living north of the quarter line who, by trespassing upon private property, can thus gain access to this road and use it; but a road to which the public can gain access and use for practical purposes only by trespassing upon private property, cannot be well considered a public highway.

In the proceedings of the commissioner, as returned to and filed with the township clerk, he certifies that he justly and impartially considered the question of damages resulting to the owners or occupants, and finds that the benefit accruing to each owner and to each occupant, by reason of laying out said highway, is equal to the damages resulting therefrom.

Looking at this return, at the location of this highway, as shown by the survey and the map thereof, at the relator's lands, and the purposes for which they are or may be used, we fail to perceive any benefit or advantage this road can be to relators or their lands. These lands, as they fronted on Spring street, were accessible; the proposed way is crooked, and, except on Spring street, neither connects with nor gives access to any highway or residence, and cannot, we think, render the remainder of relators' lands more valuable or marketable for any purpose. Any benefit or advantage which this road, as laid out, can be to relators' lands must be purely imaginary, or so remote as to be unworthy of consideration. It is only by turning to the commissioner's return to the writ of certiorari that a key to such a remarkable conclusion can be discovered. The commissioner returns that "the proof further showed that said highway, as laid out by me, would not render the use of relators' lands less valuable, but actually made it more valuable, and that the laying out of the highway applied for would not affect property of the relators injuriously, its only effect being to straighten somewhat the line of the road that had been used and traveled for twenty years by the public."

That the use of those portions of relators' lands not taken

by this road would not be less valuable by reason thereof may be quite true, but how the use could be more valuable may be more difficult to believe; and that relators must incur considerable expense in fencing on either side of the line of this road before they could use the land for any profitable purpose would seem to be quite evident. The reason given why the laying out of this way would not injuriously affect relators' property, because its only effect was to straighten the line of a private road that had been used and traveled by the public, was one which the commissioner could not properly take into consideration. Proceedings had previously been taken to lay out this road, and the same were quashed by this court. The relators, therefore, had the right to close the same at any time, and if they did not do this, but suffered parties to use it, that fact could not be taken into consideration in estimating the damages in this case. Relators were entitled to the full damages which they would sustain in the laying out of the proposed highway, without any deductions whatever on account of the alleged private way. A private way cannot thus be changed into a public highway withont compensation to the owner of the lands therefor, even although the new way be a straighter, wider and better road for the public. Cooley's Const. Lim. 557-545, et seq.

The proceedings of the commissioner must be quashed and held for naught.

(The other justices concurred.)

CHARLES F. ANDREWS vs. ANDREW J. SMITH.

Filed October 21, 1879.

In replevin, brought to recover certain goods levied upon by a constable, the plaintiff submitted to a nonsuit, and defendant elected to take judgment for the value of the property. Held, that it was incumbent on defendant to prove a valid judgment and execution, and it was not sufficient, to entitle him to recover the amount of the lien claimed by him, to show only an execution regular on its face.-[ED.

Error to Ingham.

Q. A. Smith, for plaintiff in error.

E. D. Lewis, for defendant in error.

MARSTON, J. Andrews brought an action of replevin, in justice court, to recover possession of certain property. Defendant claimed no right or interest in the property, except as a constable, and by virtue of a levy made thereon under an execution against the goods and chattels of Martin C.Graves.

On the return day of the writ the plaintiff submitted to a voluntary nonsuit, and judgment of nonsuit was thereupon rendered against him. Defendant thereupon elected to waive a return of the property and take judgment for the value thereof. The cause was adjourned by consent, and on the adjourned day the parties agreed that the value of the property was $100. Defendant was then sworn, and testified that he was a constable; that he had levied upon this property, by virtue of an execution against Graves, for the sum of $84.40 and $2.60 costs. No further or other evidence was offered by the defendant. The plaintiff was then called as a witness, and an offer was made to prove by him that when defendant levied upon the property the plaintiff was the owner of it, and that the execution debtor had no interest therein whatever. This was objected to, excluded, and judgment rendered in favor of the defendant for the full value of the property. On certiorari to the circuit court the amount of the judgment was reduced to the sum claimed in the execution.

The statute provides that when the defendant in an action of replevin recovers judgment by discontinuance or nonsuit, such judgment shall be that he have return of the property, unless he elect to waive such return. 2 C. L. § 6758. In case he elects to take judgment for the value, such value shall be assessed subject to the provisions of section 29 of this chapter, (§ 6759.) By section 29, when either of the parties to an action of replevin, at the time of the commencement of the suit, shall have only a lien upon, etc., in the goods and chattels described in the writ, and is not the general owner thereof, that fact may be proved on the assessment of value or damages, and the finding of the court shall be in accordance therewith, and the court shall thereupon render such judgment as shall be just between the parties. Section 6754.

No.

Under these provisions it was clearly incumbent upon the defendant, who was not the general owner of the property, to prove a valid judgment and execution in order to entitle him to recover the amount of the lien claimed by him thereon. Adams v. Hubbard, 30 Mich. 104. This he did not do. proof of a judgment was offered by him, and proof of an execution alone, even although regular on its face, would not entitle him to a judgment for the amount specified therein. The judgment of the circuit court and of the justice court must therefore be reversed, with costs.

CHARLES MAINZINGER US. CONRAD MOHR.

Filed October 21, 1879.

Payment was made upon a joint note, within six years, by one party thereto, in presence of the other, who was in fact only a surety, under circumstances that the creditor might well have supposed it a payment by both. Held, to take the same out of the statute of limitations as to both. -[ED.

Exception to Monroe.

George McLandon, for plaintiff in error,

Ronan & Parker and John C. Shields, for defendant in

error.

COOLEY, J. This case presents a question of the application of certain sections of the Compiled Laws which are given in the margin.*

The suit is upon a joint and several promissory note, dated August 30, 1870, whereby John L. Miller and Charles Mainzinger promised to pay Mrs. Helena Mohr, or bearer, three hundred dollars, with eight per cent. interest, in one year after date. In this note Mainzinger was surety for Miller, though the fact was not disclosed on the face of the paper.

No part of the principal of this note was ever paid; but the interest was paid by Miller from time to time up to Janury, 1876. The question in this case depends in part upon the evidence of Conrad Mohr as to a payment made to him in May, 1877, he then owning the note. According to his statement Miller and Mainzinger came together to his place of business, where the interest was reckoned up to that time, and Mainzinger handed to him the money to pay it; he under

*(7160.) Sec. 13. In action founded upon contract, express or implied, no acknowledgment or promise shall be evidence of a continuing contract whereby to take a case out of the provisions of this chapter, (statute of limitations,) or to deprive any party of the benefit thereof, unless such acknowledgment or promise be made or contained by or in some writing. signed by the party to be charged thereby.

(7161.) Sec. 14. If there be two or more joint contractors or joint executors or administrators of any contractor, no such joint executor or administrator shall lose the benefit of the provisions of this chapter, so as to be chargeable by reason of any acknowledgment or promise made or signed by any other or others of them.

(7164.) Sec. 17. Nothing contained in the four preceding sections shall alter, take away, or lessen the effect of a payment of any principal or interest made by any person; but no indorsement or memorandum of any such payment, written or made upon any promissory note, bill of exchange, or other writing, by or on behalf of the party to whom such payment shall be made, or purport to be made, shall be deemed sufficient proof of the payment so as to take the case out of the operation of the provisions of this chapter.