MASTER AND SERVANT-Continued.
track, and should therefore be held to have assumed the inci
dent risks, the fact not being undisputed. Id.
5. The fact that a box drain, which had been constructed to carry
off the water, had frozen up, thus permitting the water to
accumulate and freeze over the rails, cannot be said to have
been the proximate cause of the accident, as distinguishable
from a defective construction of the track, since the adequacy
of the drain in view of probable conditions was one of the
qu stions entering into the determination as to whether a
reasonably safe place had been provided. Id.
6. The duty to furnish a safe place was one that could not be
delegated by the defendant so as to relieve itself from responsi-
bility, and therefore, though it may have been within the
employment of the section men to remove the ice from the
track, they were not fellow-servants of the deceased with
respect to the performance of such duties. Id. 607.
See CONTRIBUTORY NEGLIGENCE (3); LANDLORD AND TENANT
(2).
MENTAL INCOMPETENCY-See INCOMPETENT PERSONS,
MILITIA-See STATE TROOPS.
MINING-See MASTER AND SERVANT (2).
Equity has jurisdiction to correct a mistake in the description
of land in a conveyance, irrespective of the statute of frauds.
Judson v. Miller, 140.
1. Where a mortgage covering several lots provides that the mort-
gagee will release from the lien of the mortgage, without
consideration, a certain number of the lots as fast as sold,
and at such time or times as the mortgagor may request,
the latter is entitled to the release of lots that are within
the terms of the stipulation upon making demand therefor
at any time before foreclosure. Commercial Bank of Iron
Mountain v. Hiller, 118.
2. Under a stipulation in a mortgage that the mortgagee will,
"on demand," release from the lien of the mortgage a cer-
tain number of the lots covered thereby, "upon the pay-
ment" of a specified sum for each lot so to be released, the
same to be applied upon the indebtedness secured, payment
and demand must be concurrent, and the mortgagor, having
made merely the payments that he was bound to make by
the terms of the mortgage, cannot afterwards demand
the release of a proportionate number of lots. Id. 119.
3. One who has purchased land from a claimant under tax deeds
cannot defend a suit to foreclose a purchase-money mort-
gage given by him upon the ground that it was his duty,
as an administrator in possession, to discharge the taxes for
the non-payment of which the deeds were executed, and
that, therefore, he acquired no title and the mortgage could
convey none. Judson v. Miller, 140.
4. One who attacks the validity of a foreclosure sale on the
ground that the lands were sold as one parcel has the burden
of proving that they were not so occupied, unless that fact is
apparent from the description in the mortgage. Gage v. San-
born, 270.
5. A sale to a mortgagee upon statutory foreclosure for an
amount in excess of that legally demandable, but claimed by
him to be due, is not invalid, in the absence of proof that the
surplus was not paid to the officer. Id.
6. The assignment of a mortgage after a sale has been made on
statutory foreclosure, though before the period for redemption
has expired, will not operate to annul the proceedings. Id.
7. A purchaser of land at a sale on mortgage foreclosure ac-
quires an equitable interest in the premises, which he may
convey by quitclaim deed prior to the expiration of the re-
demption period, and which, when so conveyed, will ripen
into a legal title in his grantee, if the land is not redeemed.
Id.
8. A legal title acquired by virtue of a foreclosure sale cannot
be attacked in an action at law on the ground that the party
claiming thereunder acted as agent for one whose duty it was
to pay the mortgage, and that, therefore, the transaction
amounted merely to a redemption. Id.
9. The fact that, in a deed executed as security only, the
grantee assumes and agrees to pay a prior mortgage, will not
necessarily preclude him from acquiring title under a sale on
foreclosure of such mortgage. Id. 271.
10. A trust mortgage recited that the mortgagor, being indebted
to certain persons therein named upon promissory notes,
some of which were indorsed by R., "and to R." upon certain
notes made by the mortgagor to U. and P., "indorsed by R.,
and upon which he is liable as indorser," executed the mort-
gage" for the purpose of securing payment of said debts, and
securing R. against his liability upon said indorsements," and
authorized the trustee, upon default in the payment of said
indebtedness, or if R. should be obliged to pay the notes upon
which he was liable, to foreclose and sell the property,
retaining from the proceeds of such sale "sufficient to pay
said debts and indorsed notes." Held, upon a bill filed by U.
to enforce an alleged interest in the security, that, so far as its
debt was concerned, the mortgage constituted a mere personal
indemnity to R., and that complainant was not a beneficiary
thereunder. Union National Bank v. Rich, 319.
See BANKS AND BANKING (1, 2); DOWER; DURESS; PRINCIPAL
AND SURETY; SUBROGATION; SUMMARY PROCEEDINGS (1, 2)
MUNICIPAL BOARDS-See PARLIAMENTARY LAW.
1. A cross-walk was constructed on a level with the curb, and to
within 7 to 12 inches thereof, leaving a gutter from 5 to 7
inches deep, with abrupt, vertical sides, between the curb
MUNICIPAL CORPORATIONE-Defective Streets-Continued.
and the walk. Plank covers were provided for this gutter
and for like openings throughout the city, of which there
were a number; but these covers were frequently removed
for the purpose of cleaning the gutters, and in some instances
were not replaced. Held, in an action for personal injuries
sustained by stepping into the open gutter while attempting
to cross the street, that it was for the jury to determine
whether the cross-walk was reasonably safe for travel.
Schrader v. City of Port Huron, 173.
2. A charter provision to the effect that no action shall be sus-
tainable upon any claim against the city unless an itemized
statement thereof, duly verified, shall have first been pre-
sented to the council for allowance, has no application to a
claim for personal injuries resulting from a defective high-
way. Lay v. City of Adrian, 75 Mich. 438, followed. Mackie
v. City of West Bay City, 243.
See CONTRIBUTORY NEGLIGENCE (1, 2).
ORDINANCES: LICENSE FEES.
3. A city charter providing that the common council may re-
quire transient dealers to obtain license before engaging in
business, and may regulate the terms of issuing the same, does
not confer authority to tax the business, but merely to license
it, to the end that it may be regulated. City of Saginaw v.
Circuit Judge, 32.
4. Under a charter authorizing the municipality to license and
regulate the business of transient dealers, an ordinance impos-
ing a license fee upon non-residents of the city only is invalid.
Id.
5. Whether a municipal ordinance which assumes to regulate
the business of transient dealers is not unreasonable in requir-
ing the payment of a license fee of $10 a day, and whether, if
restricted to non-residents of the city, it is not open to the
further objection of being in restraint of trade,-quere. Id.
6. A municipal ordinance is not invalidated because of the failure
of the city clerk to certify thereon, or in the journal of the
council proceedings, the time when such ordinance was pre-
sented to the mayor for his approval, and the time of the
return thereof, as required by 1 How. Stat. § 2532, where the
ordinance was otherwise regularly passed, approved, recorded,
and published. Boehme v. City of Monroe, 401.
7. Under a city charter authorizing the common council to li-
cense and regulate hawkers and peddlers, an ordinance requir-
ing peddlers to take out a license may exempt from its opera-
tion mechanics and farmers engaged in selling their own
products. People v. Sawyer, 428.
8. A municipal ordinance imposing a license fee upon peddlers
will not be held invalid, as contravening the interstate com-
merce provisions of the Federal Constitution (section 8, art.
1), in the case of one who is a resident of this State, and who
does not sell goods in the original package, but from a general
stock kept within the State.
See LICENSE FEES; PEDDLERS.
MUNICIPAL CORPORATIONS - Continued.
PUBLIC IMPROVEMENTS.
9. It is immaterial that a majority of the taxpayers of a munic-
ipality are opposed to the incurring of certain indebtedness,
where the statute provides for the submission of the ques-
tion to the electors, and they have declared themselves in
favor of the proposition. Board of Supervisors v. Wayne
Circuit Judg s, 166.
10. A city charter provided that, when the making of a public
improvement should have been determined upon, the board of
public works should advertise for proposals for furnishing the
mat rial and for the performance of the work. No time was
fixed for which the publication should continue. An im-
provement having been ordered by the council, the board
instructed its clerk to "advertise for proposals " until a certain
date, but the first publication was not made until three days
after such direction had been given. Held, that the board,
by receiving bids at the time specified, would be presumed to
have ratified the action of the clerk, and determined that the
advertisement was for a sufficient period. Duffy v. City of
Saginaw, 335.
11. Where the common council of a city, pursuant to the charter,
has declared what proportion of the expense of making a
public improvement shall be defrayed by an assessment upon
the lands benefited thereby, and the board of public works has
reported to the council an estimate in detail of the probable
cost and expense of the improvement, a further provision
requiring said board, after the improvement has been com-
pleted, to certify to the council "a detail statement of the cost
of such improvement, showing the amount to be assessed upon
the property benefited," is sufficiently complied with by the
submission of a statement showing the amounts in gross to be
paid by the city and by the property owners, respectively, by
reason of the improvement. Id.
12. A certificate attached to a special assessment roll required to
be made by the board of public works was signed by the presi-
dent and attested by the secretary of the board, they being
authorized thereto by resolution spread upon its records.
Held, the t, even if such a certification were insufficient under
the charter, which provided that the board of public works
shou'd certify to the roll, equity would not, for this reason,
enjoin the collection of the assessment, at the suit of one who
made no objection to the subsequent confirmation of the roll
by the common council, though afforded an opportunity to be
heard thereon. Id.
13. Where under proceedings to pave a street, instituted by a city
incorporated under the general law (1 How. Stat. chap. 80), a
plat and diagram of the proposed improvement has been filed
with the city clerk, in compliance with section 2645, which
includes all the parcels of land abutting on the portion of the
street that is to be paved, and gives the relative location of
each lot or parcel, the lot numbers, the names of the various
plats in cases where the land has been platted, the frontage
and boundary lines of each parcel, and the name of the owner
of each, a resolution of the council designating the district to
be assessed as "all the lots, premises, and parcels of land
MUNICIPAL CORPORATIONS-Public Improvements-Continued.
fronting upon" such portion of the street, "as shown by a
map of the proposed district on file in the office of the city
clerk," sufficiently defines the assessment district. Boehme v.
City of Monroe, 401.
14. 1 How. Stat. § 2643, provides for a board of assessors to levy
special assessments in cities incorporated under the general
law, and, therefore, there is no necessity for the enactment of
an ordinance providing for the creation of such a board, under
section 2427. Id.
15. Where the common council has assumed to appoint assessors
under 1 How. Stat. § 2643, whether or not the persons so
named were officers de jure will not be considered in a suit to
restrain the collection of a special assessment made by them.
Id.
16. The fact that a resolution of the common council, providing
for the submission to the electors of a proposition to bond the
city for the expense of paving a certain portion of a street,
states that the owners of property abutting on such portion
are to pay a specified percentage of the cost of the improve-
ment, will not invalidate the assessment thereafter made, on
the ground that it was left to the people to define the assess-
ment district, where such district was afterwards established
by the council, in accordance with 1 How. Stat. § 2644. Id. 402.
17. A paving assessment which is divided into five annual install-
ments, under 1 How. Stat. § 2658, none of which exceeds 5 per
cent. of the assessed valuation of the property within the
assessment district, is not in violation of section 2699, limiting
the amount to be raised in any one year, in any special assess-
ment district, to 5 per cent. of the assessed valuation of the
property included therein. Id.
18. Under 1 How. Stat. § 2649, requiring the board of assessors to
enter upon a special assessment roll the valuation of each
parcel within the district (as shown by the last preceding
general assessment roll), the valuation of a parcel lying partly
within and partly without the district may be apportioned,
where it was assessed as one tract upon the general roll. Id.
19. A resolution submitting to the electors the question of an issue
of paving bonds provided that a certain percentage of the cost
of the improvement should be paid according to frontage.
The city owned a considerable extent of the frontage, and the
amount apportionable to it by reason of such ownership was
made a general charge, reducing the percentage of the total
cost actually assessed upon private property. All of the bonds
were issued before the roll for the first installment of the
assessment had been prepared, and the greater portion, before
the amount to be specially assessed upon individual property
had been ascertained. Held, that a bill would not lie to re-
strain the city from paying the bonds, on the ground that they
were issued in violation of the vote of the electors. Id.
20. A city charter provided that no contract should be made for
any public work unless approved by the council, and that all
contracts should be let to the lowest responsible bidder. The
board of public works, when the construction of a sewer
should have been ordered, was required to advertise for pro-
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