jection of incompetency and immateriality. These matters were all proper to be given in evidence upon the cross-examination of the plaintiff. They all related to the matters given in evidence on his direct examination, and had an important bearing upon the issue. It was error to exclude them.

After the plaintiff rested his case, the defendant called to the witness stand. William V. Christie, who testified that he was secretary of the defendant corporation, and, together with Mr. Paulison, its president, met the plaintiff, and gave him full direction how the goods were to be sold, and the method of conducting the business, and gave him specific instructions in regard thereto. Defendant then proposed to show the amount of goods plaintiff sold, and that he sold the same contrary to instructions; that he did not sell scarcely any goods; that he might have sold large quantities; and that his work was not done according to agreement, and as he had promised, and was by reason thereof worthless to the defendant. This testimony offered was objected to. We think this all should have been allowed. It was responsive to the case made by the plaintiff, and, if found to be true, would have justified the plaintiff's discharge. It was also testimony which should have been left to the jury, and would have rendered the direction given to them by the court improper. The business which the plaintiff undertook to perform for the defendant was important, and was to be done under the direction of the latter. It required both experience and judgment, and which it was the duty of plaintiff to bring to bear in the performance of the service promised; and if he failed in this, and neglected or refused to obey the instructions of the defendant, it was its right and privilege to discharge him. We think the court in this case also erroneously excluded the testimony tending to show the plaintiff's lack of diligence, his neglect of duty, and want of capacity in the performance of his contract with the defendant while in its service. It went to the merits of the plaintiff's case, and should have been admitted. We are inclined to think enough was admitted, however, to make the taking of the case from the jury error. The defendant's defense is not made to an action for wages, where the plaintiff's ability was known to the employer when the contract for service was made, and which was for such service as the plaintiff had the ability to perform, and was performed accordingly, as in the case of Champlain v. Stamping Co., 36 N. W. Rep. 57; but here the defendant sought to show and rested its defense upon the facts that the plaintiff did not make the effort, was negligent, and refused to do the very things he had promised in his contract to do; that he had neither the ability or disposition to do the work he had promised. In other words, he utterly failed to perform his part of the contract, and that what he did do was worthless. The defense offered was confined to a refutation of the facts stated in the declaration, and necessary to be proved in order to enable the plaintiff to recover, and the court should have allowed it to have been shown under the issue made. The other questions presented we need not discuss. The judgment must be reversed, and new trial granted. The other justices concurred.

SAGE v. STEVENS, Auditor General, et al.

((Supreme Court of Michigan. November 28, 1888)

HIGHWAYS-TAXES AND ASSESSMENTS-VALIDITY.

Taxes for highway purposes under the tax law of Michigan of 1882 can only be assessed by the supervisors upon the certificate of the township clerk that the proposed tax has been voted by the proper authorities of the township, and a levy not appearing to have been so voted is void.

Appeal from circuit court, Ogemaw county, in chancery; J. B. TUTTLE, Judge.

Bill by Henry W. Sage against William C. Stevens, auditor general of Michigan, and others, to restrain the collection of taxes on lands of complainant. Decree for plaintiff, and defendants appeal.

De Vere Hall, (Isaac Marston, of counsel,) for appellants. Shepard & Lyon, for appellee.

SHERWOOD, C. J. The bill in this case is filed to restrain the sale of certain land owned by complainant at the annual tax sale in 1885 for the taxes assessed against it in 1882 and 1883, and to set aside such assessments as illegal and void. Upon the hearing of the cause in the Ogemaw circuit, the circuit judge made a decree restraining such sale, and set aside the assessments. All the defendants appeal to this court, except the auditor. All the proofs are before us upon a case settled by the circuit judge. The assessments were all made under the law of 1882, and the county treasurer, under the direction of the auditor general, proceeded to sell the complainant's property under the law of 1885. Just before the sale would have occurred, the complainant filed his bill, and enjoined the collection of the entire taxes for the years 1882 and 1883. The suit is in equity, and the complainant relies upon the justice of his case; and while he asks that the entire tax of which he complains may be decreed void, and his lands clouded by the proceedings taken against it may be released therefrom, he avows himself ready and willing to make payment of any part thereof which may be found legal and just. The fraud charged in the bill upon the supervisor defendants we do not think is sustained. We have discovered nothing in the assessment of the state taxes against complainant's land rendering the same invalid. It is true, under the law of 1882, the assessment could be made, but the collection of the taxes could not be enforced by reason of the defective provisions of the act, under our holding, and the provisions of the law of 1885 could not be made to apply for such purpose because its provisions were all prospective. Humphrey v. Auditor General, 38 N. W. Rep. 214. This infirmity, however, was remedied by the act passed June 9, 1887. See Sess. Laws 1887, p. 14. The assessment became a lien against the land, if properly made, under the law of 1882, and, if proceedings were taken to enforce collection, under the law of 1885. Since the law of 1887 took effect, they were properly taken, and, if prosecuted in accordance with the statutes of 1885 and 1887, the lien could be lawfully enforced against the land under those statutes. The assessment, however, will be governed by the law of 1882. At the time appointed for the sale which was enjoined, and at the time this suit was commenced, there was no valid law under which collection could be enforced, and the decree enjoining the same was properly made, and, had it stopped here, further discussion would have been unnecessary, and an affirmance would have been all that was needed to dispose of the case in this court; but it was also decreed by the circuit judge that the lien created by the assessment against complainant's property was also void, and entirely discharges the complainant's land from the assessment. This should not have been done, unless the assessment proceedings should be found so far irregular and defective as to render it void. As we have already said, this does not appear as to the state tax,

which complainant can without difficulty ascertain, and should have done so as soon as the assessment roll was completed, to occupy the equitable position he assumes in the case. As to the county taxes, there is more question. The board of supervisors of the county, in each of the years 1882 and 1883, ordered $1,000. to be raised as part of the county taxes, to be expended upon the highways in the township. The statute of 1882, under which these several amounts were voted by the supervisors in each of said years, provided that the supervisors, at their annual session in October in each year, should determine the "amount of money to be raised for county purposes, and apportion the same among the several townships in the county in proportion to the valuation of the taxable property therein." It does not appear that this money was voted to be raised for any county purpose, or for any purpose for which the county might raise money. It was therefore unauthorized, and the complainant should be relieved from the payment of any portion thereof.

Section 23 of the tax law of 1882 requires the township clerk of each township to make and deliver to the supervisor of his township a certified copy of all statements and certificates on file, and of all records of any vote or resolution in his office, on or before the 1st day of October in each year, authorizing or directing moneys to be raised therein by taxation for township, school, or highway purposes, together with the aggregate amount thereo; and the supervisor is directed to deliver the same to the clerk of the board of supervisors of the county on or before the second Monday of the same month; and the county clerk is required to lay the same before the board at its annual meeting. Certificates were made by the clerk of each of the defendant townships, in which it is stated that such copy is true and correct of all statements on file or of record in the office of the clerk, of moneys proposed to be raised in the township for all purposes, including school, township, and highway taxes. The supervisor can only assess such taxes as are properly certified to him by the clerk for such assessment, unless evidenced by other proper otticial action, and such other as the law makes it his duty to assess without such certificate by the clerk. We find none of the highway taxes for either of the years 1882 and 1883 properly certified to the supervisors of the several townships, or by the clerk of the county to the board of supervisors for their action, and no proper action taken by such board warranting the extension upon the assessment roll of either of such townships against the lands of complainant; and he is entitled to relief against these to the amount of such assessments. The decree rendered in the case at the circuit should be set aside, and decree must be entered against the complainant in conformity with the views herein expressed for the amount of the taxes assessed, less the illegal portions mentioned, and execution will be allowed to issue against the complainant therefor, without costs, and, until paid, the amount will be allowed to remain a lien upon the property. The other justices concurred.

NEWTON V. GORDON.

(Supreme Court of Michigan. November 28, 1888.)

ANIMALS-VICIOUS DOG-ACTION FOR INJURIES-PLEADING-KNOWLEDGE OF VICIOUSNESS.

As under the Michigan statute, in an action for an injury by dogs, it is unnecessary to prove that defendant knew that the dog was accustomed to do mischief, an allegation of such knowledge in a declaration is also unnecessary.

Appeal from circuit court, Wayne county; HENRY N. BREVOORT, Judge. Action by Melvin Newton against William Gordon for injury to a horse caused by defendant's dogs. Judgment for plaintiff, and defendant appeals. Edwin F Conely and Fred T. Sibley, for appellant. James H. Pound, for appellee.

SHERWOOD, C. J. This action was brought in the Wayne circuit court for injury done to the plaintiff and his family, and to his horse and wagon, upon the highway, along which he was at the time traveling in a wagon, by the defendant's dogs. The declaration contains two counts, each stating substantially the same grievance. The first is brought under the following statute: "If any dog shall have killed, or assisted in killing, wounding, or worrying any sheep, lamb, swine, cattle, or other domestic animal, or that shall assault or bite or otherwise injure any person while traveling the highway, or out of the inclosure of the owner or keeper of such dog, such owner or keeper shall be liable to the owner of such property, or person injured, in double the amount of damages sustained, to be recovered in an action of trespass or on the case; and it shall not be necessary, in order to sustain an action, to prove that the owner or keeper knew that such dog was accustomed to do such damage or mischief; and upon the trial of any cause mentioned in this section the plaintiff and defendant may be examined under oath, touching the matter at issue, and evidence may be given as in other cases, and if it shall appear to the satisfaction of the court, by the evidence, that the defendant is justly liable for the damages complained of under the provisions of this act, the court shall render judgment against such defendant for double the amount of the damages proved, and costs of suit, but in no case shall the plaintiff recover more than five dollars costs." The second count charges a right of action at the common law. The recovery at the circuit was for the plaintiff for $130 under the first count, and for the defendant upon the second count, which subsequently was doubled on motion of the plaintiff's attorney, and judgment entered accordingly under the statute. As the plaintiff has not appealed, only the grievances of the defendant need be considered, and under the case as presented these are confined to the proceedings had under the first count.

It is first insisted by appellant that there is nothing in the statute which dispenses with the averment that such dog doing the mischief was accustomed to do the same, and upon the ruling of the circuit judge to the contrary defendant's counsel bases 13 assignments of error. The court was right in the ruling. The statute expressly says, in a case like the present, the plaintiff need not show that the defendant had previous knowledge of the vicious habits of his dog. The only reason for the averment at common law was that it was necessary to show knowledge of such fact in the defendant be ore plaintiff could recover. The reason of the rule requiring the averment to be made having been entirely abrogated by statute, the rule itself must be allowed to go with it; otherwise a senseless form would be perpetuated, and which, as often as taken advantage of, would prove destructive of substantial rights. There is no question but that the defendant owned or controlled a number of dogs, and harbored more, at the time of the injury complained of, and that they were together at or near the place where the plaintiff's horse was attacked; and the jury by their verdict found that the injury was done in the

highway by one or more of them. Whether it was done by the largest or smallest, or by one or more than one, is unimportant. If any one did the damage, or caused the injury to plaintiff, and the animal belonged to the defendant, the judgment is right, and should not be disturbed. The court submitted the case to the jury upon the question of damages as favorably as the defendant could expect. It really went to the jury upon the actual damages to the plaintiff's horse, if they found the injury was done by the defendant's dog or dogs in the highway. Defendant had no ground for complaint upon the court's charge, and, without considering the case further, we think the judgment should be affirmed. The other justices concurred.

STAHL v. DEIIN.

(Supreme Court of Michigan. November 28, 1888.)

MORTGAGES-DEED ABSOLUTE-CONTEMPORANEOUS AGREEMENT TO RECONVEY. Lots worth $600 were mortgaged for $307, and the owner exchanged them for a horse and buggy worth $300, and executed a warranty deed, the grantee agreeing to pay the mortgage. Before the parties separated, another paper was executed, in which the grantee agreed to convey the lots to the grantor within six months for $625, and taxes paid in the mean time, and interest. The grantee paid the mortgage shortly after receiving the deed, and no repayment was made by the grantor. Held, that the transaction was an absolute sale of the lots, and not a mere security for the price of the horse and buggy.

Appeal from circuit court, Wayne county, in chancery; HENRY N. BREVOORT, Judge.

Bill by Frederic T. Stahl against William H. Dehn to remove cloud from title. Decree for complainant, and defendant appeals.

James H. Pound, for appellant. Elliott G. Stevenson and Charles S. McDonald, for appellee.

LONG, J. The bill was filed in this cause in the Wayne circuit court, in chancery, to remove a cloud from the title of complainant's lots, lying in the Boulevard in the city of Detroit. It appears that some time in March, 1885. the defendant called upon complainant, who he had been advised had a horse and buggy for sale. Complainant valued his horse and buggy at $300, and Dehn desired to purchase, if the complainant would take in exchange his two Boulevard lots, which he placed at $600, and would pay the mortgage thereon, then amounting, with interest, to the sum of $307. After some talk, the parties went to the law-office of C. B. Howell, in Detroit, where the arrangement was completed, and Mr. Howell was directed to draw the papers. Defendant executed and delivered to complainant a warranty deed of the premises, and in consideration of which complainant turned out to defendant his horse and buggy, and was to pay the mortgage on the lots. Before the parties separated, another paper was drawn by Mr. Howell, and executed by complainant, and delivered to defendant. The exact time when this paper was drawn is in dispute between the parties. Whether it was at the exact time with the execution and delivery of the deed, or was an after arrangement, the parties are not agreed It is conceded, however, to have been made before the parties separated on that day. After this paper was executed by complainant, Mr. Howell made a copy Dehn signed it, and delivered the same to complainant. The copy reads as follows:

"Whereas, the undersigned has this day purchased of Dr. Wm. A. Dehn, of Detroit, lots twenty-four (24) and twenty-five (25) in Mabury's subdivision of lot 18, of Mandlebourn's sub. of fractional sections 1 and 36, being corner of Boulevard and Seventh streets, I hereby agree to convey to said Dehn said lots within six months from this date, for the sum of six hundred and twenty-five dollars and such expense as said Stahl is put to in paying taxes, etc.,