489, 1 How. Stat., has a purpose, is plain; but we think it more reasonable to believe that it was intended to require the consent of two-thirds of a full board, than that it was designed to deprive townships, which should be represented by appointive officers, of a voice in the proceedings. It was intended to preclude action by two-thirds of a quorum, or of a board whose numbers had been lessened by vacancies."

It is admitted that, if 2 of the 34 aldermen had been temporarily absent, the ordinance would not have been passed. We cannot see how the fact that 2 of the 34 aldermen elected were permanently absent, instead of being temporarily so, would change the terms of the charter. The language is not ambiguous. The purpose, doubtless, was that, when legislation was proposed the wisdom of which was in so much doubt as to meet with the veto of the mayor, before it could become a law it should receive the vote of two-thirds of all the aldermen, when all the wards of the city were fully represented in the council. The action of the circuit judge is affirmed.

The other Justices concurred.

INDEX.

ACCORD AND SATISFACTION-See SETTLEMENT.

ACCOUNT BOOKS-See EVIDENCE (4).

ACCOUNTING-See APPEAL AND ERROR (5); EXECUTORS AND
ADMINISTRATORS (4, 5); RES JUDICATA (3); TENANCY IN COMMON

(2).

ACCOUNTS, MUTUAL-See STATUTE OF LIMITATIONS (1, 3);
TRIAL (7, 8).

ACTIONS.

1. 3 Comp. Laws, § 10427, conferring a right of action for death
by wrongful act or neglect, and section 10117, providing for
the survival of actions for negligent injuries to the person, do
not give a double remedy for the same wrongful act. Nor is
the remedy under the latter section (the survival act) ex-
cluded by the fact that death ultimately ensued from the in-
jury. On the contrary, such section applies wherever a cause
of action accrued to the deceased in his lifetime; the former
section (the death act), only where the death prevented such
cause of action from vesting,-in other words, where the
death was instantaneous. Dolson v. Lake Shore, etc., R. Co.,
444.

2. Hence, where a decedent survived his injuries for some 12
hours, being conscious a part of the time, the remedy of his
administrator was under the survival act, and not under the
death act. Id.

See ASSUMPSIT; BANKS AND BANKING (2); BILLS AND NOTES
(4); EJECTMENT; GUARDIAN AND WARD; RES JUDICATA;
TAXATION (17, 18); TRESPASS.

ADMISSIONS-See CORPORATIONS (5).

ADVERSE POSSESSION.

A finding by the trial court that plaintiff had exercised acts of
ownership and possession over the land in dispute for more
than 15 years will be treated, in support of the judgment, as
a finding of title by adverse possession, where it is apparent
that it was intended as such finding, and there is evidence to
sustain it. Hart v. Doyle, 258.

See BOUNDARIES; EJECTMENT (2); TAXATION (5); TENANCY IN
COMMON (3); TRESPASS (1).

AFFIDAVITS-See APPEAL AND ERROR (6); CAPIAS.

AGENCY-See PRINCIPAL AND AGENT.

AGRICULTURAL SOCIETIES-See CORPORATIONS (3); TRES-
PASS (4).

ALIMONY-See DIVORCE (2).

AMENDMENTS.

1. On the trial of a case appealed from justice's court, wherein
the summons ran in the name of "J. F., assignee of L. F.," it
was not error to permit plaintiff to amend his declaration by
setting up an assignment of the claim sued on. Farnam v.
Doyle, 696.

2. It was immaterial that the amendment allowed was not re-
duced to writing, the declaration being oral, and the parties
having proceeded as though it were in fact amended. Id.

3. It appearing that the claim was for services rendered by plain-
tiff's assignor, it could not be said that the amendment author-
ized did not aver the assignment of an antecedent debt. Id.
4. The amendment of a declaration on the trial of an appeal from
justice's court, by setting up an assignment of the claim sued
on, does not introduce a new cause of action. Id.

See CONSTITUTIONAL LAW (1-5); CORPORATIONS (6-8).
APPEAL AND ERROR.

1. An objection that there was a variance between the declara-
tion and the proofs, and that a recovery was permitted for a
different defect than that alleged in the declaration, will not
be heard on appeal, where no objection was made to the evi-
dence, and no misunderstanding existed as to the questions
involved. Jarvis v. Flint, etc., R. Co., 61.

2. The punctuation of the stenographer's notes of an instruction
to the jury will not be allowed to alter the plain meaning of
the language employed. Id.

3. A contention that the court erred in permitting the jury to
find that a note sued on had been paid will not be considered,
where a determination of the question involves an extended
computation, which appellant's counsel has not seen fit to
incorporate in his brief. McLeod v. Hunt, 124.

4. An appellant is not entitled to a consideration of alleged
errors first brought to the attention of the court by supple-
mental brief. Hart v. Doyle, 258.

5. Findings of fact by the trial court on an appeal from an ad-
ministrator's accounting are conclusive on the Supreme Court
if there is evidence to support them. Gee v. Hasbrouck, 509.
6. Ex parte affidavits filed with the court at the time of set-
tling a decree cannot be considered on appeal. Aztec Copper
Co. v. Auditor General, 615.

See AMENDMENTS; EQUITY PRACTICE (3); INTERPLEADER;
NEW TRIAL; PRACTICE IN CIRCUIT COURT (2, 3); RES
JUDICATA (4).

APPEAL BOND-See PRINCIPAL AND SURETY.

ARREST-See CAPIAS.

ASSIGNMENT OF CLAIM-See AMENDMENTS.

ASSIGNMENT OF MORTGAGE-See PRINCIPAL AND AGENT (1).
ASSIGNMENT OF STOCK-See CORPORATIONS (2); SALE (1).
ASSIGNMENTS FOR BENEFIT OF CREDITORS.

A corporation, heavily indebted, gave mortgages on substan-
tially all of its property to certain creditors, as trustees for
themselves and other named creditors. The trustees at once
filed a bill of foreclosure, and, by consent of the mortgagor, a
receiver was appointed, with authority to continue the busi-
ness. Soon thereafter the trustees organized a new corpora-
tion, which, by authority of the court, purchased from the
receiver all the property of the old corporation. Held, that
the transaction could not be regarded as a common-law
assignment for the benefit of creditors, and therefore void for
preferences, even though the mortgagor consented to the
receivership proceedings at the time of executing the mort-
gages. Longley, Low & Alexander v. Amazon Hosiery Co., 194.
ASSUMPSIT.

1. Defendant took a harvesting machine from plaintiff's local
selling agent in payment of a note given by the agent, defend-
ant having no knowledge of such agency, and thereafter, on
plaintiff's demand, refused to pay for or deliver the machine,
though still having it in his possession. Held, that assump-
sit would not lie to recover the value of the machine, as de-
fendant did not acquire possession through contract with the
plaintiff. McCormick Harvesting-Machine Co. v. Waldo, 135.
2. Where a mortgagee of chattels takes possession of the same
under his mortgage, and refuses to surrender them to the
mortgagor on demand, claiming title under an invalid fore-
closure, the mortgagor may maintain assumpsit for their
value. Castner v. Darby, 241.

3. A declaration in assumpsit for fraudulent representations,
authorized by 3 Comp. Laws, § 10421, need not set up the
statute, though it would be better pleading to do so. Hallett
v. Gordon, 364.

4. Under said statute, assumpsit may be maintained against an
agent for fraudulent representations by which plaintiff was
induced to enter into a contract with the principal. Id.
ASSUMPTION OF RISK-See MASTER AND SERVANT (4, 5); RAIL-
ROADS (2).

ATTORNEY AND CLIENT.

1. Where, in an action on a note, defendant claimed that the
payee had sold the note to an innocent purchaser, and re-
purchased it through plaintiff, as agent, for the purpose of
barring equitable defenses, all of which negotiations had been
conducted by the payee's attorney, it was not error for the
court, on the examination of the attorney as a witness, to in-

128 MICH.-45.

1

ATTORNEY AND CLIENT-Continued.

form counsel that, though the witness would not be compelled
to produce the correspondence between himself and the
payee, his failure so to do might be commented on to the
jury. Battersbee v. Calkins, 569.

2. It cannot be presumed that the general attorney of a railroad
company, having power to adjust and settle claims against it
for personal injuries, has authority, as part of such a settle-
ment, to bind the company by a contract to employ the in-
jured person for life. Nephew v. Michigan Cent. R. Co., 599.
BANKS AND BANKING.

1. Money deposited in a bank is prima facie the property of the
person in whose name the deposit is made, and an adverse
claimant on interpleader must show a clear title thereto.
Detroit Savings Bank v. Haines, 38.

2. The cashier of a bank has presumptive authority to maintain
an action for the collection of its paper. Battersbee v.
Calkins, 569.

BENEFIT SOCIETIES.

1, Where, under the laws of a fraternal beneficiary association, a
sick-benefit fund accumulated by a subordinate lodge is the
property of the latter body, a receiver of the parent organ-
ization is not entitled thereto as against another society to
which the fund has been transferred by the local lodge.
Detroit Savings Bank v. Haines, 38.

2. 2 Comp. Laws, § 7217, defining the term "life-insurance com-
panies," within the meaning of the statutes; and sections
7221, 7522, providing that the first-mentioned section shall
not apply to co-operative and mutual benefit associations,-do
not prevent such an association from being considered as a
life-insurance company, within a general statute relating
to such companies. Citizens' Life-Insurance Co. v. Com'r of
Insurance, 85.

3. 2 Comp. Laws, § 7219, prohibiting life-insurance companies
from discriminating between insurants of the same class as
to rates, dividends, or benefits, or from paying or allowing
any rebate of premium, or other valuable consideration not
specified in the policy, as an inducement to insurance, is
applicable to co-operative and mutual benefit associations
organized under 2 Comp. Laws, § 7497 et seq. Id.

4. Such section (7219) is violated where an insurance company
contracts to pay one of its officers a stated percentage of its
premium receipts, with the understanding that the same
shall be apportioned among certain persons, to be known as a
'Board of Reference," as an inducement to their becoming
policy holders in the company. Id. 86.

5. Under 2 Comp. Laws, § 7517, providing that, on the filing of
the annual statement of a benefit association, if the insurance
commissioner shall find that the association is still organized
and doing business conformably to law, he shall issue his cer-