erence, the village council had jurisdiction to pass an ordinance suppressing all saloons in the village, and that such ordinance was not an improper interference with the state's police

power.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 7-12; Dec. Dig. § 10.*] Certiorari to Circuit Court, Wayne County; Patrick J. M. Hally, Judge.

Certiorari, on the relation of the Village of Grosse Pointe Shores, to review an order granting mandamus in favor of Edmund C. Vernier against the Village Council to compel the issue of a liquor license. Judgment reversed.

Argued before MOORE, C. J., and STEERE, MCALVAY, BROOKE, STONE, OSTRANDER, and BIRD, JJ.

William M. Mertz, of Detroit (Charles D. Joslyn, of Detroit, of counsel), for appellant. Edwin Henderson, of Detroit, for appellee.

STONE, J. This is certiorari brought by the village council of Grosse Pointe Shores to review the action of the circuit court of Wayne county in granting a mandamus in favor of relator against said village council. The sole question involved is the validity of an ordinance adopted by the village council on April 12, 1912, suppressing all saloons in said village. On the same date the relator below made application for a license to carry on the sale of spirituous and intoxicating liquors in said village. On April 29th the council rejected said application. Whereupon the relator applied to the circuit court for the county of Wayne for a writ of mandamus to compel the respondent to grant the relator a license. After due hearing in the premises, the writ was granted.

The said village was organized under Act No. 278 of the Acts of 1909. In pursuance of that act, it adopted a charter, which contained the following provision: Chapter 26, § 2: "The common council shall have power to pass such ordinances in relation to the following subjects as it may deem proper: (1) To regulate trade, occupations and amusements within its boundaries, including the sale of intoxicating liquors and the number of licenses to be issued therefor; and to suppress saloons for the sale of spirituous and intoxicating liquors." The validity of this ordinance is attacked upon the ground that its enactment involved the exercise of the police power of the state; that the Legislature has delegated this power to the electors of the village; that the electors of the village could not redelegate the power to the village council; that consequently the charter provision delegating the right to suppress saloons to the village council is void, and as a necessary sequence that the ordinance is void. Article 5, § 1, of the Constitution of Michigan, provides: "Legislative power is vested in a senate and house of representatives."

Article 8, 20, of the Constitution, provides: "The Legislature shall provide by a general law for the incorporation of cities, and by a general law for the incorporation of villages. * * 99 Section 21 of the same article is as follows: "Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter, and, through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this state." In 1909, by Act No. 278, the Legislature enacted the following provision: "Sec. 24. Each village may in its charter provide: (a) for the regulation of trade, occupations and amusements within its boundaries, including ber of licenses to be issued therefor, but no the sale of intoxicating liquors and the numcharter shall permit the sale of such liquors in any county where such sale is prohibited by operation of the general local option law of the state, but may suppress saloons for the sale of spirituous and intoxicating liquors." Section 25 of said act is as follows: "Each village may adopt as its charter or any part of the same, any chapter, act or section of the statutes of this state in force at the time of such adoption and not inconsistent with the provisions of this act, which relates to the powers or government of villages generally, either by reciting the same in such charter or by appropriate reference thereto."

The court below held (a) that Act No. 278 of the Acts of 1909 gives the power of suppressing saloons to the village, and not to the common council; (b) that the electors having such power cannot delegate it to their council. In other words, the circuit court held that the suppressing of saloons must be by the charter itself, and not by ordinance of the council. This decision necessarily goes to the extent of invalidating the charter provision above quoted.

It is the contention of the relator that if the power is given by section 24, subd. “a,” above quoted, to suppress saloons for the sale of spirituous and intoxicating liquors, that power can only be exercised by the electors of the village enacting such a measure in the charter in the manner provided by law, viz., "submission to and the approval of the same by a majority vote of the electors; and that such power cannot be redelegated to the village council." It is the claim of the village that the general legislative policy of the state for many years has been to lodge the power of suppression by local police regulations in the local legislative body, to wit, the common council.

It is well here to refer to section 2769 of the Compiled Laws of 1897, being what may be termed the "Old Village Law," and to note that the charter of the village of Grosse

Argued before MCALVAY, BROOKE, STONE, OSTRANDER, and BIRD, JJ.

A. A. & H. A. Ellis, of Grand Rapids, for

appellant. Tuttle, McArthur & Dunnebacke, of Lansing, for appellee.

MCALVAY, J. These cases were presented to this court combined in one record and were submitted upon briefs. The first named

is a mandamus proceeding. The second is a case brought here upon writ of error.

[1] It is suggested on the part of both respondent and the defendant in their brief

that no order has been made combining these cases, and that there is no practice warranting such combination. In our opinion the

objection is made too late. The record gave

timely notice that the cases were to be considered together. The attention of the court was not called to the matter by motion or otherwise, and the original files show that stipulations for continuances of the cases, entitled as combined, have been entered into, signed by the attorneys for the respondent and for the defendant.

[2] In this court the only brief printed and filed by the same attorneys is entitled in the same manner. It would appear that the question had been waived. There is but one question presented by the record of these cases before us. This relates to an order made by the court dismissing plaintiff's suit on account of failure on her part to give security for costs, with a judgment for costs against her. This was a final judgment, reviewable upon writ of error.

[3] This court has repeatedly held that, where the remedy by writ of error was adequate, mandamus was not the proper remedy. City of Flint v. Genesee Circuit Judge, 146 Mich. 439, 109 N. W. 769, and cases cited. For a citation of many of these cases, see Olds Motor Works v. Wayne Circuit Judge, 164 Mich, at page 471, 129 N. W. 710. Respondent will recover costs.

This leaves for consideration the errors assigned in the case here for review upon writ of error. This case was commenced in the circuit court for Ingham county by a summons. Defendant's appearance was entered December 27, 1909, and he pleaded the general issue to plaintiff's declaration on the same date, and also made and filed a motion for security for costs. This motion was supported by his own affidavit in the ordinary form, showing that plaintiff was without property of any kind and was a nonresident of Ingham county, and further alleging that her cause of action was without merit, trivial, and vexatious. This was opposed by

her poverty, and charged that, by reason of false statements in an alleged interview made by plaintiff and published in the newspapers that she was blackmailing him, he had rendered it impossible for her to obtain security for costs; that her cause of action was not trivial, as appeared from her declaration therein. She also filed several affidavits

showing her character for virtue, honesty, and integrity. This motion was heard on January 10, 1910, and an order was entered that plaintiff file a bond in the sum of $100 for security for costs within 30 days, or show cause why the same should not be filed, and staying in the meantime all proceedings on the part of the plaintiff. Afterwards, on January 18, 1910, during the above period of 30 days, the defendant, without notice, made a motion "to increase the amount for which

security of costs shall be filed," and to require the plaintiff to furnish security for such increased amount, giving, in addition that the amount asked was not large enough to the reasons relied on in the first motion, and that plaintiff was mentally irresponsible and weak. This motion was supported by a number of affidavits in support of the claimed mental weakness of plaintiff, and an affidavit of defendant showing the probable expense to him of a trial of the cause.

Defendant made no affidavit of merits and

stated no new facts or circumstances upon which said motion was based.

tion

This mo

was opposed by plaintiff upon the ground, among others, that it was unusual and irregular. It came on to be heard and was granted February 7, 1910, by an order setting aside the order of January 10, 1910, and ordered plaintiff to file within 30 days a general security for costs or show cause why such security should not be furnished. The plaintiff did not furnish the bond. Two days after the expiration of the 30 days, plaintiff moved to set aside the order of February 7th, among other grounds setting up the wrongful conduct of defendant already indicated, whereby she was deterred and defeated in her efforts to obtain such security. Pending this motion, on March 14, 1910, defendant moved to dismiss the cause on the ground that plaintiff had not complied with the order of February 7th, and had not filed security for costs or shown sufficient cause therefor. This motion was heard and granted March 21st, and the cause was dismissed. On March 24th the plaintiff moved to vacate this order. This motion was denied March 28, 1910.

The principal and practically the only question involved is whether the court erred in entertaining and granting the motion of defendant asking for a general security for costs, by the order made February 7, 1910, and in granting the motion to dismiss plaintiff's cause for not complying with such order.

[4] It appears to be well settled upon authority that, to authorize an order requiring new security for costs, it is essential that there shall have been a change in the circumstances of the case, of the parties, or of the surety. The mere fact that the security was insufficient when taken will not authorize an order requiring new security. 11 Cyc. 190; Martin v. Hazard Powder Co., 93 U. S. 302, 23 L. Ed. 885; Jerome v. McCarter, 21 Wall. 17, 22 L. Ed. 515. The application must show that new facts have arisen since the security was given, making additional security necessary. 11 Cyc. 191, and cases cited.

[5] By parity of reasoning, in a case where an application has been made for security for costs and an order granted thereon, and a second application is made pending the time allowed to comply with such order, in the absence of new facts or conditions shown to have arisen, the same rule would apply.

[6] Therefore the application under review in this case was insufficient to warrant the court in granting the order, and the order made under such circumstances is reviewable on the ground that it was granted on an insufficient showing. Nothing appears in this application that was not, or should not have been, within the knowledge of defendant at the time of the first application. The motion of plaintiff to set aside this order granted March 21, 1910, should therefore have been allowed for the reasons stated, and the court was in error in denying such motion.

The judgment of the circuit court against plaintiff, dismissing her cause with costs, is therefore reversed and set aside, and said

cause will be reinstated and proceed to trial.

Plaintiff will recover costs of both courts.

LONGE v. KINNEY et al.

testator's debts, funeral expenses, expense of adopted daughter, conveyed the property to the administration, and the balance to testator's widow by an absolute deed, he was incompetent to testify as against her heirs that such conveyance was in fact in trust to pay testator's debts, and to pay the balance to such adopted daughter.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 576-579; Dec. Dig. § 141.*] 2. TRUSTS (§ 191*) - POWERS OF TRUSTEE

NEW TRUST.

when a trust shall be expressed in the instrument Comp. Laws 1897, § 8849, provides that, creating the estate, every sale or act of the trustees in contravention of the trust shall be void. Held, that where land was conveyed to an executor in trust to sell, and from the proceeds pay testator's debts, funeral expenses, expense of administration, and pay the balance to testator's adopted daughter, the executor had no power to create a new trust by conveying the land to the widow on the same trust, but was only authorized to make an absolute sale of the land.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. § 243; Dec. Dig. § 191.*1

3. TRUSTS (§ 43*) - CREATION-PAROL EVI

DENCE.

that no estate or interest in lands other than Under Comp. Laws 1897, § 9509, providing leases for not over one year or any trust over or concerning lands shall be created, unless by act or operation of law or by deed of conveywhom land had been conveyed in trust to pay ance in writing, etc., where an executor to testator's debts, funeral expenses, and expense of administration, and to pay the balance to his adopted daughter, conveyed the land in fee to testator's widow, an alleged trust could not be imposed on such land by parol proof that the widow at the time of accepting the deed agreed to hold the land on the same trust as the executor.

[Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.*]

4. PAYMENT (8_66*)-CLAIMS-DELAY IN EN

FORCEMENT-PRESUMPTION OF PAYMENT.

Where complainant was more than 21 years of age at the time a claim against her foster mother, if any, arose, but she waited for 21 years after the mother's death before attempting to enforce her rights, such unexplained delay created a presumption of payment.

Cent. Dig. 88 176-188; Dec. Dig. § 66.*]

[Ed. Note.-For other cases, see Payment,

SIGNORS.