which impugned his character would be | admissible as declarations or admissions against his interest. It is urged that the admission of such testimony disregards a well-settled rule, that an assignor cannot be allowed, after assignment, to invalidate the title of the assignee by his declarations; but this rule, so far as I have been able to find, is only to be invoked in aid of bona fide assignees for value. Welch v. Mandeville, 1 Wheat. 233; Hough v. Barton, 20 Vt. 458; Dazey v. Mills, 5 Gilman, 67: Hackett v. Martin, 8 Greenl. 77; Frear v. Evertson, 20 Johns. 142. I am not in favor of extending the rule so as to exclude evidence of the statements and admissions of one who has made a general assignment for the benefit of creditors, under the circumstances of this case. Hogan v. Sherman, 5 Mich. 64, 65. What has been said applies to the testimony of Castle, Walsworth, Spaulding, and Gage.

It was shown that, just prior to the assignment, Visger had advertised extensively, claiming that he had received a large consignment of goods from Leland, Rice & Co., of Boston. He had a band out, and had a special sale, running through several days, during which he claimed to be selling goods at 50 cents on the dollar. It was also shown that, a day or two before he made the assignment, Visger executed a chattel mortgage to Leland, Rice & Co. for $2,400. The plaintiffs thereupon❘ called as a witness a Mr. Braynard, who testified that he had been employed as a clerk by Visger during the last year, and over, that he had been in business. The witness was then asked the following question: "What can you say about any goods being shipped to Visger by Leland, Rice & Co. during October or November? The question was objected to as incompetent and immaterial, but was admitted. In answer, the witness said: "He did; clothing. A small bill came by express. It did not weigh more than twenty pounds. It contained an overcoat and a coat and vest; nothing more that I can remember." This inquiry was proper. Visger had bought the goods in suit of plaintiffs in two bills; one small bill of $5.50, in September, 1887, and the balance of $218.96, October 8th following. At about the time plaintiffs' goods must have have arrived, Visger began to advertise the arrival of good from Leland, Rice & Co. in large amounts, and that they would be sold at half-price. If the goods so advertised were the plaintiffs', instead of Leland, Rice & Co.'s, it would be evidence of fraud that, within a month after their purchase, Visger was offering to sell the goods at a discount which would be ruinous to an honest tradesman. Besides, the question bore, although remotely, upon the bona fides of the $2,400 chattel mortgage, given by Visger to Leland, Rice & Co. a few days before the assignment, especially when taken in connection with Visger's testimony that he did not know how much he owed Leland, Rice & Co. What has been said covers all the points made against the judgment. We discover no error, and the judgment will be affirmed. with costs. The other justices concurred,

|

(82 Mich. 562)

TINSMAN V. MONROE PROBATE JUDGE. (Supreme Court of Michigan. Oct. 22, 1890.) DRAINAGE PROCEEDINGS TO WIDEN ANd Deepan.

1. The widening and deepening of a drain, and its extension, which in fact form one continwhere the petition is signed by at least one freeuous drain, may be included in one proceeding, holder who was assessed for the construction of the drain proper, and by one at least who was assessed for the construction of the extension.

2. The failure of a petition for widening and deepening a drain to allege, as required by Pub. Acts Mich. 1889, p. 351, c. 8, § 1, that the petitioners were assessed for the construction of the drain which they ask to have widened and deepened, is fatal to the proceedings, as the requirement is jurisdictional.

Application for mandamus.

Willis Baldwin, for relator. George M. Landon, for respondent.

CHAMPLIN, C. J. Relator is the county drain commissioner of Monroe county. In 1874, a drain was laid out and constructed in the town of Frenchtown called the "Stewart Drain." It was extended into the adjoining town of Raisinville, and such extension was called the "Stewart Extension Drain." When constructed it formed one continuous drain. The Stewart drain was laid out by the township commissioner of Frenchtown, and the Stewart Extension drain by the joint action of the commissioners of Frenchtown and Raisinville. The relator was applied to by petition to widen and deepen these drains, which petition embraced a description of both drains as one continuous drain, under the denomination of the "Stewart Drain." He acted upon the petition, and was unable to procure a release of lands proposed to be taken for the purpose of widening the drain, and consequently applied to the probate court for the appointment of commissioners. David, Mary, and Alexander Stewart appeared in obedience to a citation before the court, and made several objections to the granting of the application for the appointment of commissioners, only two of which will be noticed here. The probate court declined to appoint commissioners upon the ground, first, that proceedings by the county drain commissioner to widen and deepen the Stewart drain could not be entertained, because there were two drains embraced in the application, and it required two separate proceedings which could not be united in one; and because the county drain commissioner did not obtain jurisdiction to act at all, for the reason that the petition did not show that one or more of the petitioners was or were owners of land which, at the time the drain was constructed, was or were assessed therefor. The objections were those taken by the Stewarts, above referred to.

The first objection stated is untenable. The Stewart and the Stewart Extension drains are in fact and law one drain, and there is no reason why they may not be included in one proceeding to widen and deepen, provided the petition is signed by one or more freeholders who were assessed for the construction of each of the drains;

The other objection is fatal to the proceedings. The petition does not show that one or more of the petitioners were assessed for the construction of these two drains which they asked to have widened and deepened. The statute requires this, and the requirement is jurisdictional. Pub. Acts 1889, p. 351, c. 8, § 1. The petition on its face must show jurisdictional facts. The mandamus must be denied.

Issue was joined, and on September 24, 1888, decree was entered holding the sale to be null and void, and permitting defendant to redeem by paying $525.48, less the costs, within 90 days, and, in default of such payment, that the bill be dismissed without costs. Defendant did not pay the amount decreed to be due. Plaintiff thereupon filed a petition setting forth that fact, and, on April 8, 1889, decree was entered dismissing the bill. Plaintiff, after demand, on April 12, 1889, brought this suit to recover possession of the premises. The case was tried by the court without a jury, and judgment rendered in favor of

(82 Mich. 353)

HUYCK V. GRAHAM.

(Supreme Court of Michigan. Oct. 10, 1890.)

JUDGMENT-COLLATERAL ATTACK.

A notice of mortgage foreclosure by advertisement erroneously stated the amount then due, claiming too large a sum. The property was sold for the principal, the interest due at the date of the notice, and interest accruing between said date and the time of sale. The mortgagor filed a bill in chancery to set the sale aside. A decree was entered holding the sale null and void, permitting the mortgagor to redeem on payment of the sum due at the date of the notice, and providing that, in default of such payment, the bill be dismissed. The payment was not made, and the bill was dismissed. At the mortgage sale, the premises were bid in by the mortgagee's administrator, and a sheriff's deed given. Held, in a suit by the administrator for possession, that, though the decree in the suit by the mortgagor to redeem was erroneous in failing to provide for a resale of the property in case the mortgagor failed to redeem, still he, having made no objection to it, was bound by it, and could not attack it collaterally.

Error to circuit court, Van Buren county. Jonathan G. Parkhurst, for appellant. Lester A. Tabor, for appellee.

GRANT, J. April 28, 1884, defendant executed to William Anderson a mortgage for $5,646, due in five years, with annual interest at 7 per cent. Anderson died early in 1887. Plaintiff was appointed administrator, and commenced a foreclosure of the mortgage by advertisement April 12, 1887, claiming as then due $929.38. In fact the amount then due was only $525.48. April 28, 1887, another installment of interest became due, amounting to $395.22. The only irregularity in the notice was the erroneous amount claimed. July 14, 1887, the premises were sold under the notice for the sum of $6,669.48, and were bid in by plaintiff. The difference between the amount actually due and the amount of the purchase price was never tendered to defendant. No money was actually paid at the sale. The sale was made by a deputy-sheriff, and the deed executed by the sheriff. The sale was made for the principal sum secured by the mortgage, the interest due at the date of sale, and costs of sale, less $63.64. The land was not worth the amount due upon the mortgage. The sheriff's deed was executed to plaintiff as administrator. July 2, 1888, defendant filed a bill in chancery against plaintiff,

But

made subject to future installments, but the proceedings were evidently conducted upon the theory that the mortgagee possessed the right to bid the property in for the full amount secured by the mortgage, without any obligation resting upon him to pay to the mortgagor the amount not due. It is unnecessary to determine what the rights of the defendant would have been under the sale if no suit had been instituted by him to set the sale aside. he has had his day in court in the manner chosen by himself. He did not choose to stand upon his rights at law upon the alleged ground that the sale was void, but he filed his bill in chancery praying that the sale be set aside and declared void. Our only concern, therefore, is to determine the effect of the final decree rendered in that suit. The bill filed by the defendant must be considered as a bill to redeem, and it can make no difference that he did not pray for the right to redeem. When no fraud is alleged, and the only irregularity is that the notice of sale claims a greater amount than is actually due, the mortgagor must be prepared to do equity, and this can only be accomplished by payment of the amount actually due, or by a decree for the resale of the premises. 2 Jones, Mortg. § 1921; Schwarz v. Sears, Walk. (Mich.) 172; Goodenow v. Curtis, 33 Mich. 510. It is well settled that, where no actual injury or fraudulent purpose is shown, the mere fact that a larger amount is claimed in a notice of sale than is actually due does not render the sale, and the deed made in pursuance thereof, void. Flock v. Cronkhite, 1 Hill, 110; Jenkcs v. Alexander, 11 Paige, 626; Millard v. Truax, 47 Mich. 251, 10 N. W. Rep. 358, 50 Mich. 253, 15 N. W. Rep. 501. The case of Fosdick v. Van Husan, 21 Mich. 567, established the rule in this state that the decree should be for redemption by payment of the amount actually due within a specified time, and that, in default thereof, the premises be sold as in foreclosure cases. Grover v. Fox, 36 Mich. 461; Newkirk v. Newkirk, 56 Mich. 525, 23 N. W.. Rep. 206; Meigs v. McFarlan, 40 N. W. Rep. 246. The decree in this case did not provide for a resale upon failure to redeem, and, in this respect, was not in accordance with the established practice, but the defendant appears to have been satisfied with it. Whether it was such an one as he asked for does not fully appear. It is fair to presume that it was, for it nowhere appears that he objected to

be dismissed, with the remark that they cannot be reviewed upon certiorari.

The law is silent as to the power of the board to adjourn. We think they have the right to adjourn, for any sufficient reason, both as to time and place; and, unless it is made to appear that such adjournment was an abuse of their corporate functions, and operated to the detriment of those affected, or to be affected, by the proceedings, such action is not subject to review.

The objections to the notice are: (1) It is not signed by Charles H. Kenworthy as township clerk, but instead as the clerk of the board of school inspectors of Penn township. (2) It did not state what lands would be detached from school-district No. 7, nor from school-district No. 1, and attached to school-district No. 4. The boundaries of all school-districts are of record in the township clerk's office, and also in the office of the director of each school-district. Both the original Both the original and the boundaries of the school-district No. 4, as proposed to be altered, were contained in the notice. This was sufficiently definite and certain, and showed that territory was to be detached from districts 1 and 7, and attached to district 4. These notices were posted in districts 1 and 7. While it would have been proper to have named districts 1 and 7 in the notice, it was not essential, when the notice showed upon its face that they were to be affected by the proposed action. The law1 states that the township clerk shall give at least 10 days' notice of the meeting. By the constitution,2 the township clerk is declared to be ex officio a school inspector, and the statute says that he shall, by virtue of his office, be the clerk of the board of school inspectors. In our opinion, the notice having been in fact signed by Charles H. Kenworthy, who was township clerk, is a valid notice, whether it discribed himself as township clerk or clerk of the board of school inspectors of Penn township.

The main objection to the legality of the proceedings of the board is based upon the ineligibility of Elvene M Hollister to hold the office of school inspector.3 The board consists of three persons, and it appears that the action of the board complained of was unanimous. It would

have been legal had Miss Hollister not voted or acted. She assumed to be school Inspector by virtue of an election to that office, and she acted as such. Whether she was qualified to act or not, the proceedings had the sanction of the majority of the board, and were therefore legal. The constitutional question therefore does not necessarily arise. Mr. Justice Cooley, in his work on Constitutional Limitations, at page 196, (*163,) expresses the sentiments of courts of last resort in this language: "Neither will a court, as a general rule, pass upon a constitutional question, and decide a statute to be invalid, unless a decision upon that very point becomes

How. St. Mich. § 5040.

Const. art. 11, § 1.

How. St. Mich. § 782, renders females eligible as members of the board of school inspectors.

Counsel makes the point that the law authorizing the election of two school inspectors is void, as being in conflict with article 11, § 1, which provides: "There shall be elected annually, on the first Monday in April, in each organized township, one school inspector,

whose powers and duties shall be prescribed by law." The same section makes the township clerk ex officio school inspector. It is a matter of serious doubt whether the legislature can create offices, which are special in the constitution, and limited by that instrument as to the num. ber to be elected, without some authority, express or implied, contained in that instrument. But this question does not necessarily arise. There was in fact and law one school inspector elected by the electors of the township of Penn, and he, with the town-clerk, would constitute the board, if the additional school inspector was unauthorized. If the law did authorize two school inspectors, then Miss Hollister was elected to that office. The law authorizing her election had not been declared unconstitutional, nor the law for an additional school inspector. While it is true that there cannot be an officer de facto unless there be an office to fill, yet the rule is modified, so far as offices have been created, by the legislature, while the statute creating them has not been declared unconstitutional. This is upon grounds of public policy. Mechem, Pub. Off., §§ 318, 327. She was therefore a de facto officer, having been elected under a statute which had not been declared unconstitutional, and her acts are valid whether she was eligible or not. The return made by the board of school inspectors to the writ of certiorari shows that their action was legal and proper. The right of any member of such board claiming to be lawfully elected, and in possession of the office, cannot be tried upon certiorari in this collateral way. The proper method is by information in the nature of a quo warranto. The proceedings of the board should be affirmed, with costs. The other justices concurred.

(82 Mich. 565) LENHOFF v. SAGINAW CIRCUIT JUDGE. (Supreme Court of Michigan. Oct. 24, 1890.) BILL OF EXCEPTIONS-SETTLEMENT-EXTENSION OF TIME.

Circuit Court Rule Mich. 85, provides that the bill of exceptions shall, when prepared, be noticed for settlement during the term at which the trial was had, unless the judge shall otherwise order. Rule 86 provides for a settlement of the bill after a service of a copy thereof on the opposite party, "or at such other time" as shall be appointed by the circuit judge. Held, that an extension of the time for settling the bill, granted by the judge during the term at which the case was tried, gives him full authority to settle the same at any time thereafter at his discretion, and the fact that the time limited in the order of extension has expired owing to a misunderstanding of the date by appellant will not deprive the judge of jurisdiction to settle the bill at the term following the date originally fixed.

Application for mandamus.

1

CAHILL, J. The question in this case involves a construction of circuit court rules 85 and 86, relating to the settlement of bills of exceptions. On the 9th day of July, 1890, the plaintiff recovered a verdict in the Saginaw circuit against the Liverpool & London & Globe Insurance Company for $951.29. On the same day an order was made in the case extending the time to July 24, 1890, for either party to move for judgment on the verdict, or for a new trial, or to settle a bill of exceptions. On the 24th of July, a motion by defendant for a new trial was heard, and overruled, and a judgment entered on the verdict. On the same day an order was entered extending the time to settle a bill of exceptions to and including the 1st day of October following. The June term of court, at which the case was tried, was extended from time to time until September 30, 1890. Court convened for the October term on the 6th, and on that day defendant's counsel presented a bill of exceptions for settlement. Plaintiff's counsel objected to a settlement of the bill, on the ground that the time within which to settle it had expired October 1st. It was claimed by defendant's counsel that the bill had been prepared and ready for settlement before the 1st of October, but had not been presented for settlement before, because they had understood that the time had been extended to the first day of the October term, instead of the 1st day of October. The circuit judge returns that this claim of defendant's counsel was not questioned, and, believing it to have been made in good faith,

he decided to and did make another order extending the time 20 days within which to settle the bill of exceptions. This is the order complained of, and we are asked to require the circuit judge to vacate it. We have declined to do so. Circuit rule 85 provides that a bill of exceptions shall, when prepared, be noticed for settlement during the term at which the trial was had, unless the court or circuit judge shall otherwise order. In this case the court did otherwise order. Rule 86 provides: "At or before the time specified for settling such bill of exceptions, the party alleging such exceptions shall serve a copy thereof on the opposite party, who may propose amendments thereto in writing, and the same shall thereupon, or at such other time as he shall appoint, be settled by the judge according to the facts, and signed by him," etc. It was claimed by relator that, as the order of July 24th did not extend the time for settling the bill into the next term, the court had no jurisdiction to again extend the time, and that the case of White v. Campbell, 25 Mich. 463, did not apply. We do not consider the particular language used by the court in the case just referred to as indicating that special stress was laid upon the fact that the first extension of time had been into the succeeding term. There is nothing in the rule or practice to indicate that that fact was important. That happened to be the time to which the time had been extended in that case. The doc-❘

when the court had, during the term at which the case was tried, regularly extended the time for settling a bill of exceptions, the judge had full authority to settle the same at any time thereafter, at his discretion. The fact that the time limited in a previous order had expired does not deprive the court of jurisdiction. The same rule had been adopted, although not so clearly stated, in the earlier case of People v. Littlejohn, 11 Mich. 60. Those cases must rule this one, and the mandamus will be denied.

1. The drain law of 1869, (Acts. Mich. 1869, No. 39,) provided that when the costs of a drain, as apportioned by the highway commissioners, were not paid they should be certified to the supervisor, who was required to enter them upon his tax-roll, to be levied and collected in the same manner as other taxes, and paid by the treasurer upon the order of the highway commissioners to the persons entitled to receive them. The general tax law (How. St. Mich. $$ 1058-1111) provides that the township treasurer shall submit a statement of deliquent taxes, with a description of the premises, to the county treasurer, who shall credit the township therewith, and then forward a transcript thereof to the auditor general to be credited to the county. If it is discovered that any of these taxes are defective they pervisors shall order a reassessment. Section shall be charged back to the county, and the su1112 provides that, if such taxes cannot be properly reassessed upon the same lands, they shall be reassessed upon the taxable property of the township, as may appear equitable. Held that, where drain taxes so charged back were illegally as sessed, the general property of the township did not originally belong to the general town. may be reassessed therefor, although such taxes

ship funds.

2. In 1850 the township officers listed and assessed for taxation a piece of state land, which was not taxable, and in due course the same was returned to the auditor general for delinquent taxes. In 1887, the auditor general charged back the same with compound interest to the county. Held, that there is no outlawry as between the state and the county, or the county and the township, and such amount should be assessed against the taxable property of the township.

Mandamus.

S. S. Miner, for appellant. Hugh McCurdy, for appellee.

MORSE, J. This case differs in some respects from that of Mason v. Supervisor, ante, 727. There are two items in controversy: First. An item of drain taxes in relation to a township drain. There was returned in 1871 for the taxes of 1870 and in 1872 for the taxes of 1871, among other delinquent lands by the township treasurer to the county treasurer, certain lands for delinquent or uncollected township ditch taxes. These taxes amounted to $521.27. These lands were returned by the county treasurer to the auditor general, and, upon his books, the amount of the taxes cred