tiff himself, or his agent or attorney. Nor did it even show that such affidavit was made on plaintiff's behalf."

The trial court refused to give said request, and upon motion of defendant directed a verdict and judgment to be entered for the defendant; and the same were entered accordingly.

The court was of the opinion that the case was governed by the case of Katt v. Swartz, 199 Mich. 51. The plaintiff has brought error.

By appellant's 3d, and also by her 11th assignment of error, the question of the sufficiency of the affidavits in garnishment is squarely raised, and the 16th assignment of error is to the effect that the court erred in directing a verdict for defendant.

In our opinion the affidavits in garnishment were fatally insufficient to confer jurisdiction upon the justice to issue the garnishee summons. The statute quoted requires the affidavit to be made by the plaintiff, his agent or attorney. Here, there was not even a recital of that fact. We think that this is a jurisdictional question.

The rule is well stated in 1 Stevens' Mich. Practice, § 85, where the author says:

"It is settled that if the affidavit fails to comply substantially with the requirements of the statute, the court acquires no jurisdiction and the proceedings are void, unless at least there is a waiver of the defects. A waiver of fatal defects by the garnishee may possibly bind him; but it will not protect him from an action by his creditor, the principal defendant." Citing Weimeister v. Manville, 44 Mich. 408; Conway v. Ionia Circuit Judge, 46 Mich. 28; Ettelsohn v. Insurance Co., 64 Mich. 331.

See, also, Rood on Garnishment, §§ 250, 251, 270, 271.

In Ettelsohn v. Insurance Co., supra, it was said:

"If a creditor seeks to collect his debt under this statute, the reasons are abundant and manifest why he should pursue the statute strictly, and under the most strict construction. The proceeding is founded upon the affidavit required by the statute. If this affidavit is defective, the court acquires no jurisdiction. It is not a case in which jurisdiction can be acquired by voluntary appearance of the parties, or aided by presumptions. Neither can any substantial requirements of the statute be waived in any of the proceedings by the debtor garnished, because others. have an interest in the result quite equal with those of the parties to the suit." Citing in addition to the above cases, Iron Cliffs Co. v. Lahais, 52 Mich. 394.

In the Ettelsohn Case the court was equally divided upon the question of strict construction, but all agreed that the statute should be strictly construed, so as to protect the rights of parties. We think the same rule should be applied as in attachment cases. In Borland v. Kingsbury, 65 Mich. 59, it was held that it was essential that it should appear upon the face of an affidavit for an attachment that it was made either by the plaintiff, or by some person in his behalf. Citing Burnside v. Davis, 65 Mich. 74. See, also, Stringer v. Dean, 61 Mich. 196.

In Wetherwax v. Paine, 2 Mich. 555, the affidavit in garnishment was made by one Bothwell, who described himself as the agent of the plaintiffs, and it was held to be sufficient. In the instant case there was no such recital. See, also, Keister v. Donovan, 173 Mich. 328, at page 334, as to the necessity of observing statutory requirements in such proceedings.

Authorities in other jurisdictions are abundant to the same effect. Wiley v. Aultman & Co., 53 Wis. 560 (11 N. W. 32); Willis v. Lyman, Sears & Co., 22 Tex. 268; Manley v. Headley, 10 Kan. 88; Mohr v. Manufacturing Co., 3 Alberta L. R. 252; Lee v. Sumner, 2 Manitoba L. R. 191.

The last two cited cases were garnishee proceed

ings, and are directly in point, the affidavits having been defective in the same particular as in the instant

case.

We are of the opinion that the court was in error in holding that Katt v. Swartz, supra, was controlling in this case. This court was there dealing with section 9 of chapter 76 of the judicature act (3 Comp. Laws 1915, § 14369), where the money owing was for personal work and labor performed by the principal defendant, or some member of his family, and the distinction between that and other sections, especially section 12, was pointed out, and the mandatory language of section 9 was emphasized. In the instant case there was no claim that the money owing was for personal work and labor, and the affidavits failed to comply with the statute in that regard-a point not distinctly raised in the case. The distinction between the cases will appear upon careful examination.

In our opinion the affidavits in garnishment were absolutely void, and conferred no jurisdiction upon the justice, and the subsequent proceedings were nugatory, and constituted no defense to this action. The court erred in receiving the affidavits in evidence, in refusing to charge the jury as requested, and in directing a verdict for the defendant. Whether the assignment of the claim to the plaintiff was valid or not, presented a question of fact which should have been submitted to the jury under proper instructions.

The judgment is reversed and a new trial granted, with costs to the appellant.

BIRD, C. J., and MOORE, STEERE, BROOKE, FELLOWS, and KUHN, JJ., concurred. OSTRANDER, J., did not sit.

FIRST NATIONAL BANK OF BAY CITY v. VANDEN BROOKS.

1. LICENSES-PERMISSIVE USER-DEEDS INCUMBRANCES.

Where a deed conveyed property "subject to present incumbrances," a parol license and permissive use of said premises, held, not to amount to an incumbrance within the meaning of the deed.

2. JOINT STOCK COMPANIES-DISTINCT ENTITY.

Since the law governing corporations is applicable to limited partnerships, a deed to a limited partnership was to a distinct entity.

3. LICENSES-PAROL LICENSE-REVOCATION BY DEED.

The rule that a deed revokes a parol license, held, to apply to a deed to a limited partnership, although the grantor was an officer of the grantee.

Appeal from Bay; Davis, J., presiding. Submitted October 24, 1918. (Docket No. 6.) Decided December 27, 1918. Reargued February 7, 1919. Former opinion affirmed May 29, 1919.

Bill by the First National Bank of Bay City against John C. Vanden Brooks and others to quiet title to land. Defendant Vanden Brooks filed a cross-bill claiming title by adverse possession and prescription. From a decree for plaintiff, defendant Vanden Brooks appeals. Reversed, and decree entered for appellant.

Edward S. Clark, for plaintiff.

Coumans & Gaffney, for appellant.

ON REHEARING.

STONE, J. In the opinion herein (204 Mich. 164, 178) we said:

"Conceding, as we do, the correctness of the position of the plaintiff as to the parol license, and permissive use of the property in the first instance, we

206-Mich.-12.

are constrained to hold that the deed of the premises by Warren in 1891 revoked that license and permissive use, and that the use of the defendant of the stairway and spaces above since that time has been of such a character as to give him a prescriptive right to the easement claimed."

Upon the motion of the plaintiff a rehearing was granted, and the case was referred to a circuit court commissioner of the county of Bay to take and report to this court,

"such further testimony as may be produced by either party, relating to the deed or transfer and control of the property in question by Byron E. Warren, and the Bank Building Company, Limited, and in respect to the nature of defendant's possession, after such conveyance by the said Byron E. Warren; and that such testimony, and any and all exhibits offered, be printed by the plaintiff, as a supplemental record in said case."

Such testimony is before us in the form of a supplemental record and the case has been reargued by counsel. It now appears that the premises were deeded by Byron E. Warren and wife on January 8, 1891, by which deed they "convey and warrant" to the Bank Building Company, Limited, described as a "corporation duly formed and existing under the laws of Michigan," the premises in question. That deed contains this clause: "This conveyance is made subject to present incumbrances on said property." There was one recorded incumbrance, viz., a mortgage of $12,000.

It appears undisputed that the Bank Building Company, Limited, was in fact a partnership association limited, under our statute, which had been formed on January 7, 1891, and its articles of association were duly recorded on the 9th day of January, 1891. By its articles, the capital stock consisted of 250 shares of $100 each. William O. Lewis, Byron E. Warren and Stuart B. Warren were the first managers. Byron E. Warren was first chairman and William O. Lewis was secretary and treasurer.