In an action on a warranty the evidence of plaintiff as to the form of the warranty was positive, unquestioned, and sufficient, if believed, to make out the warranty. Held, that it was not error to refuse to require a special finding as to warranty and its form.-[ED.

Error to Clinton.

A. Stout, for plaintiff in error.

R. Strickland, for defendant in error.

GRAVES, J. This action was brought by Aldrich to recover damages for breach of warranty of a horse Daniels sold to Aldrich.

The purchase was made in the spring of 1877, and Aldrich claims that Daniels warranted the horse as kind and true, and that he was not so, but was balky. Aldrich recovered $105.

After the purchase Aldrich kept him and worked him until the next winter, but at that time, whilst being used in drawing wood, he balked, and, becoming fractious, threw himself down and broke his neck. There was evidence of his balking the next day after Aldrich got him, and from time to time when put to service down to his death, and these freaks were not confined to any special service or circumstances, but were a common habit. The objection that his behavior at the time he killed was too long himself after the trade, was not well taken. It was the last of a series of vicious actions which began immediately after the purchase, and not an isolated instance, and went to prove, with the other occasions, a fixed vice in the animal at the time of the warranty, and the circuit judge was very careful to instruct the jury that it was only admissible to show his character and disposition at that time.

The evidence that he was in fact a balky horse three years before was also unobjectionable. If balky at that time, it was much more likely that he would prove to be balky afterwards than if he had always been true.

We see nothing incompetent in the hypothetical questions objected to. They contained no assumption not justified by the evidence, and their admission was not error.

It is objected that the judge refused to ask the jury, at defendant's instance, to find specifically and report whether the defendant warranted the horse in question to the plaintiff when he sold him, and if he did, then in what words. The evidence for the plaintiff was positive that the defendant assured him that the horse was a good work horse; that he was true and all right, and true as a dollar, and kind as a

kitten, and was as good a horse as any in the county; and this evidence was not questioned by the defendant, and if credited by the jury it was enough to make out the warranty. The judge submitted it fairly, and the result is conclusive that they believed the evidence. A separate submission of the question would have been an idle ceremony, as there was no room for any inconsistent finding. The other question, if not otherwise objectionable, was immaterial. There was no dispute about the words imputed. The only thing open was, whether they were in fact used, and the jury in effect decided that they were.

There is no error, and the judgment must be affirmed, with costs.

(The other justices concurred.)

LUTHER BEECHER vs. CHARLES A. BARTLETT.

Filed October 28, 1879.

Lessee's agreement with landlord as to furniture, etc., put into a hotel, held, not to bind the property of third persons placed there in ignorance of such agreement, and not subject to its terms.-[ED.

Error to supreme court of Detroit.

Henry M. Cheever, for plaintiff in error.

Moore & Moore, for defendants in error.

CAMPBELL, C. J. Bartlett had four billiard tables belonging to one Foster until paid for, but which Bartlett had a right to keep and use under a contract of sale, to belong to him fully when paid for. These tables were in use in a billiard room in the Biddle House, Detroit, and when taken there by Bartlett it was by arrangement with Gay & Van Norman, who were then lessees of the premises. At the time when Bartlett was put in possession of the billiard room this lease was to run for over four years longer; but, by a new arrangement made during the same year, the lease was terminated and the premises agreed to be surrendered.

By the original lease it was agreed that all additions to the furniture and equipments made by the lessees shall be added to and become a part of the furniture and equipments of the house, and added to the inventory, and at the end of the contract the surplus either way was to be allowed to the proper party.

Beecher had the right at any time to resume possession of the billiard rooms and use them for other purposes. The

tables which were in these rooms at the date of the lease had been taken out and turned over to him, and the lessees proposed to put in more modern and better ones than the old

ones.

By the surrender arrangement the inventory was to be balanced as before arranged, and any disputed property was to remain until the dispute was settled.

Bartlett knew nothing of any of these terms, and Beecher knew nothing of the arrangements made with him. Beecher undertook to hold these tables as belonging to him under the arrangement. Bartlett had paid for the tables and replevied them. Judgment passed for him below, and Beecher brings

error.

The case is too plain for discussion. Whatever agreements or covenants the lessees may have made on their own behalf, they could pass no title and create no lien on the property of third persons. The learning concerning real covenants is

foreign to the controversy.

The judgment must be affirmed, with costs. (The other justices concurred.)

NATHANIEL ROBBINS and others vs. CATHARINE BROOKS.

Filed October 28, 1879.

Joint debtors, sued in the circuit court, cannot set off against the claim sued upon anything but joint demands.-[ED.

Error to Berrien.

Clapp & Fyfe, for plaintiffs in error.

N. A. Hamilton, for defendant in error.

CAMPBELL, C. J. Mrs. Brooks sued Robbins & Nickerson as joint makers of a promissory note made payable to the order of Alfred Osborne, indorsed by Osborne to Hopkins & Jackson, and by them to her. The chief defence relied on was a set-off belonging to Robbins against Hopkins & Jackson. It was claimed this set-off was acquired in season to attach against the note, and also that Robbins being principal, and Nickerson surety, the claim, although a sole claim in favor of Robbins, was available for the benefit of both defendants.

A minor question was raised that Nickerson signed the note after it had become operative against Robbins, and that his liability did not rest on any consideration. But it appeared that he signed it in order that Hopkins & Jackson

might be induced to take it, and this would preclude any such question.

Under statutes regulating proceedings before justices of the peace there is a provision which might favor the set-off if this suit had been brought before a justice, but we have no such statute which applies anywhere else. The general set-off law does not allow joint debtors to use any but joint demands by way of set-off. Comp. L. 5796, subd. 6. The right of set-off in courts of law is purely statutory, and we cannot enlarge it beyond what the statutes allow.

The court below so held, rightly. The judgment must be affirmed, with costs.

(The other justices concurred.)

JOSEPH M. FRENCH VS. CANADA SOUTHERN RAILWAY COMPANY.

Filed October 28, 1879.

In an action against two defendants service was made on one, and by stipulation with plaintiff a deposition on behalf of such defendant was taken. Subsequently the other defendant appeared, and upon his objection the deposition, when offered, was rejected. Held, that the rejection would not avail the defendant, on whose behalf it was taken, as error. -[ED.

Error to Wayne.

William B. Jackson, for plaintiff in error.

Frank H. Culver, for defendant in error.

COOLEY, J. The railway company, in August, 1876, brought suit against Joseph M. French and Lewis B. Lent, in justice's court, on a liability asserted against the two jointly. The summons was served on French only. The case was adjourned from time to time, until September 15, 1876, when Lent also appeared, by attorney, and all the parties, without objection, proceeded to trial on the merits.

On the trial, after the plaintiff had rested his case, the defendant French offered in evidence a deposition taken under a stipulation between himself and the plaintiff before Lent had appeared in the cause. The defendant Lent objected to its reception, on the ground that it was taken without his consent, and without notice to him. On this objection the deposition was ruled out.

The plaintiff had judgment in the cause, which the defendant French removed to the circuit court on certiorari, where it was affirmed. It is now here on a writ of error, and the sole error assigned is the rejection of this deposition.

v2—17 (no. ii)

(257)

From the foregoing it will be seen that the error, if any, was not committed on the motion or in the interest of the plaintiff. The plaintiff stipulated that the deposition might be taken, and made no objection to its being read. The plaintiff is therefore in no fault whatever; but if the deposition was not admissible under the objection of defendant Lent, we are unable to perceive that French is in position to complain of any one. The plaintiff kept faith under the stipulation; Lent only asserted his legal rights, and the justice only accorded them. The fault, if any, must therefore be with French himself, who should have been prepared for objections from Lent, if in fact Lent and himself did not harmonize in their defence.

The judgment must be affirmed, with costs. (The other justices concurred.)

IN THE MATTER OF THE APPLICATION OF PERRY COON FOR
A MANDAMUS TO COMPEL THE ATTORNEY GENERAL
TO FILE AN INFORMATION IN THE NATURE
OF QUO WARRANTO.

The legislature, in the act establishing or organizing the police court of Grand Rapids, did not, in providing that the then police justice should act as judge of such police court until the expiration of his term, create a new office and legislate him into it, but simply continued his old office with modifications. Informations should, except in exceptional cases, be instituted in the circuit court.-[ED.

F. A. Maynard, for defendant.

Otto Kirchner, Attorney General, for respondent.

PER CURIAM. The object of this application is to require the attorney general to file an information in this court to inquire into the right of John M. Harris to hold the office and perform the duties of police judge of the city of Grand Rapids. It seems that Harris was chosen police justice of Grand Rapids for the term of four years from the sixth day of April, 1878; that in 1879 an act was passed to take effect May 13, 1879, purporting "to establish and organize a municipal court in the city of Grand Rapids, to be known and called the police court of Grand Rapids," one of the provisions of which purported to continue the police justice in office until the expiration of the time for which he was elected, but under the title of police judge. He was then made judge