POWER RIGHTS-See WATERS AND WATERCOURSES (1).

POWERS OF DEPUTY-See ATTACHMENT (3).

PRACTICE.

1. The period of 14 days named by statute for the service on the incompetent of citation "before the time" appointed for the hearing, is to be determined by including the day of hearing and excluding the day of service. In re Miller's Estate, 468. 2. But under Probate Court Rule 5, 14 full days' notice before the day of hearing is required as to the next of kin. Id.

3. The objection cannot be raised in a collateral proceeding, after
appointment of a guardian. Id.

See APPEAL AND ERROR (11); ESTATES OF DECEDENTS (8);
PLEADING (2); TAXATION (9).

PRESCRIPTION-See WATERS AND WATERCOURSES (7, 8).
PRESUMPTIONS-See BILLS AND NOTES (4); CRIMINAL Law (3);
ESTATES OF DECEDENTS (4); MUNICIPAL CORPORATIONS (4).
PRINCIPAL AND AGENT.

Evidence that plaintiff sold to an agent of defendant fishing nets ordered in the name of defendant to be used in a branch of defendant's business in a town separate from the main office; that the agent had been appointed by defendant to conduct his fishing business at the place in question for half the profits, and was to furnish a gasoline tug which should be kept in repair at the expense of the business; that supplies, gasoline and wages should be paid for from the proceeds, the principal to furnish money necessary to run it and allow the agent to check out funds from the bank as such agent, with evidence tending to show notice to defendant of the purchase, warranted judgment for plaintiff against the principal for the price of the nets. R. J. Ederer Co. v. Kavanaugh, 663.

PRINCIPAL AND SURETY.

1. By extending the time for payment the payee of a note releases the surety, guarantor, or indorser who has not consented to the extension. In re Kelley's Estate, 492.

2. Surety and guarantor are similar in that each promises to answer for the debt or default of another, the surety assuming liability as a regular party to the primary undertaking, while the guarantor's liability arises out of an independent collateral agreement by which he undertakes to pay the obligation if the principal fails to respond. Id.

3. To release either, an extension of time must be more than a mere agreement to indulge or forbear, and must have the essentials of a binding contract, must be reasonably definite as to time, must be for a valuable consideration, payment of interest in advance being a sufficient consideration. Id. 493. 4. Though evidence to show the relations of the parties and at

PRINCIPAL AND SURETY-Continued.

tending circumstances is admissible as an aid in interpreting or construing a writing that is doubtful or ambiguous, it is not competent to contradict the plain provisions of an instrument. Id.

5. Makers of a demand note, as collateral to loans or advances made by a bank in which they were interested, continued liable while extensions of time were given by the bank to the corporation, until revocation by act of the guarantors or other act of the parties: the death of one of the guarantors terminated the progressive nature of the indemnity agreement and extensions of time to the principal debtor thereafter released the estate of decedent from liability. Id.

6. Guaranties are of two classes; (1) the consideration being entire, passing wholly at one time, (2) the consideration passing at different times and being separable or divisible: the former are revocable by the guarantor and do not terminate at his death, upon notice of the fact; the latter may be revoked as to subsequent transactions by the guarantor, upon notice to that effect, and are terminated by his death and notice of that event. Id.

7. Delay for about four years after decedent's death in attempting to enforce collection of an indebtedness, guaranteed by a joint note of decedent and others, where the principal debtor was a corporation that was solvent over two years after such death, when it became insolvent, no notice being given to decedent or his estate of default, was laches sufficient to release the liability of the estate of decedent and bar contribution to the joint indemnitors. Id.

See INTOXICATING LIQUORS (1, 2, 4).

PRIOR ACCIDENTS-See EVIDENCE (1).

PRIVILEGED COMMUNICATIONS-See CRIMINAL LAW (6); EvIDENCE (9, 11).

PROBATE APPEALS-See APPEAL AND ERROR (10).

PROBATE COURT RULES-See PRACTICE (2).

PROBATE COURTS-See ESTATES OF DECEDENTS (8, 9); INSANE PERSONS (1); PRACTICE (1, 2); WILLS (2).

PROBATE PRACTICE-See INSANE PERSONS (1); WILLS (1).

PROBATION-See CRIMINAL LAW (12, 13).

PROCESS-See PRACTICE (1).

PROSECUTING ATTORNEY-See PUBLIC OFFICERS.

PUBLIC IMPROVEMENTS-See TAXATION (1-4).

PUBLIC OFFICERS.

1. In a suit to obtain a partnership accounting between two attorneys at law, a clause in the articles of partnership provid

PUBLIC OFFICERS-Continued.

ing for division of the salary of defendant, earned as prose-
cuting attorney, is unenforceable, being contrary to the
policy of the law. Anderson v. Branstrom, 157.

2. The test of the validity of any contract assigning future earn-
ings of a public officer is not whether, if it is faithfully carried
out, the public will be harmed, but whether its tendency will
affect the public. Id.

3. The effect of the void clause in the agreement is to invali-
date the entire contract. Id.

PUBLIC POLICY-See CONTRACTS (3); PUBLIC OFFICERS (3).
PUNISHMENT, CRUEL AND UNUSUAL-See CONSTITUTIONAL
LAW (10).

QUIETING TITLE-See VENDOR AND PURCHASER (2, 3).

RAILROADS.

1. Where defendant's engineer saw plaintiff some distance ahead
walking along a path close beside defendant's tracks, and
proceeded slowly, with his engine under control, and both
hands engaged in operating it and in ringing the bell, so he
could not blow the whistle, and where plaintiff, whose atten-
tion was engaged by another passing train, failed to hear the
bell ring, and stepping upon the track or dangerously near it,
about ten feet in front of the locomotive, was struck before
the engineer could stop, and it appeared that the engine ran
only a few feet after striking plaintiff, who was knocked
down but not crushed, the engineer could not be held guilty
of gross negligence. Berry v. Harbor Springs R. Co., 181.
2. Plaintiff was guilty of contributory negligence as matter of
law. Id.

See CONSTITUTIONAL LAW (1, 2, 4-6); MASTER AND SERVANT
(1, 2).

RATIFICATION-See BANKS AND BANKING (1); CONTRACTS (4).
REAL PROPERTY-See ADVERSE POSSESSION.

RECEIVERS - See BANKS AND BANKING (4); CORPORATIONS (1).
RECORDER'S COURT OF DETROIT-See COURTS.

RECORDS-See TAXATION (6).

RECOUPMENT-See BILLS AND NOTES (8); CUSTOMS AND USAGES

(5).

REDEMPTION-See TAXATION (8, 9).

REFORMATION-See BREACH OF MARRIAGE PROMISE (3).

RELEASE OF SURETY-See PRINCIPAL AND SURETY (1).

REOPENING DITCH-See DRAINS (1).

REPRESENTATIONS AS TO
FRAUDS, STATUTE OF (1).

CREDIT OF ANOTHER - See

REPUGNANT STATUTES-See STATUTES (1).

REPUTATION—See CRIMINAl Law (20, 24).

REQUESTS TO CHARGE-See BILLS AND NOTES (11); HOMICIDE
(4).

RESCISSION-See BILLS AND NOTES (3); CONTRACTS (4); Fraud
(3); SALES (1, 2); VARIANCE (2).

RES GESTÆ-See EVIDENCE (6); MASTER AND SERVANT (15).
RES JUDICATA-See ESTATES OF DECEDENTS (15).

RESTRAINT OF TRADE—See Contracts (1, 3, 5).
RETRACTION-See LIBEL AND SLANDER (2).

REVOCABLE GUARANTIES-See PRINCIPAL AND SURETY (6).
REVOCATION-See PRINCIPAL AND SURETY (5).

RIGHT OF CONTRACT-See CONSTITUTIONAL LAW (6).
RIPARIAN RIGHTS-See WATERS AND WATERCOURSES (6-8).
RIVERS-See WATERS AND WATERCOURSES (1).

SALARY-See PUBLIC OFFICERS.

SALES.

1. Where defendant executed an order in duplicate for a set of
books, and caused to be inserted on the part retained by him
a condition that the books should be delivered in nine months,
also, after the expiration of that time, ordering other books
from plaintiff and signing an agreement to pay installments
upon both orders, he could not rescind for failure upon plain-
tiff's part to deliver the set within the nine months. Wood
v. Rooks, 270.

2. He waived any failure of performance, so as to lose his right
to rescind, by accepting and retaining a part of the first
order after the time limited by the duplicate contract. Id.
3. Where a mare purchased by plaintiff was represented to be
with foal, and sound, and where testimony tended to estab-
lish defendant's claim that her condition could not be ascer-
tained, but her history justified the representations, only
proof of an express warranty of her condition would sustain
a recovery for damages because she was not actually with
foal. Littlejohn v. Sample, 419.

4. And where the court, in his instructions to the jury, left it to
be inferred that if the jury believed a representation as to
the mare's condition was made they might find that defend-
ant warranted her to be with foal, as distinguished from
fraud and deceit, plaintiff could recover damage for its
breach, and further charged the jury that if a representation
as to her condition was made and was false, but defendant
acted in good faith, having reasonable ground to believe that
the statement was true, in such event plaintiff could not re-

SALES-Continued.

cover; there was reversible error for attempting to distin-
guish between a false warranty and a false representation,
both of which are governed by the rule of good faith as set
forth in the latter part of the court's charge. Id. 420.

5. Plaintiff's damage could not be increased under a declaration
alleging general damages, because he claimed to have wanted
mares for breeding purposes; his purpose was immaterial.
Id.

6. In an action for breach of a contract, defendant was not en-
titled to show, as an excuse for not shipping goods ordered,
pursuant to agreement, that plaintiff had neglected or re-
fused to pay an old account, as tending to prove a fraudulent
attempt to secure the goods without any intention to pay for
them, where its refusal to perform was not based on such a
reason and no testimony excluded had any tendency to show
that such was the true reason for refusing to perform.
Frohlich v. Independent Glass Co., 428.

7. Prejudicial error did not appear from the charge of the
court to the effect that plaintiff was not required, in mitiga-
tion of damages, to buy of any manufacturer not known to
him in the ordinary course of his business, under undisputed
testimony that there was only one concern of sufficient
capacity that would fill his order at the time, and he pur-
chased the goods of it. Id.

See FRAUD (1); FRAUDS, STATUTE OF (2); PRINCIPAL AND
AGENT; VARIANCE (1, 2).

SALT INSPECTION-See INJUNCTION.

SAVING QUESTIONS FOR REVIEW-See APPEAL AND ERROR
(1, 3); CRIMINAL LAW (27).

SEDUCTION-See BREACH OF MARRIAGE PROMISE (1, 3).
SCHOOLS AND SCHOOL DISTRICTS.

Under Act No. 281, Local Acts 1899, incorporating the schools
of Muskegon and conferring on its board of trustees the same
powers as are granted to school districts by section 4717, 2
Comp. Laws, as amended by Act No. 12, Pub. Acts 1911 (4 How.
Stat. [2d Ed.] § 9932), also conferring power to raise money,
purchase sites, erect school buildings and furnish or improve
them, respondent, the secretary of the board, should have
been compelled by mandamus from the circuit court to sign
and issue bonds that had been authorized by the board and
voted upon by the electors of the district pursuant to law;
and it is held, that the charter provisions authorizing the rais-
ing of money by taxation for the construction of buildings
(§§ 19, 23, 24, 26) are consistent with the power to issue bonds
under the general law. Public Schools of Muskegon v. Smith,
570.

SELF-DEFENSE-See HOMICIDE (1, 6).

SENTENCE-See CRIMINAL LAW (1, 11, 12).