victed criminal and detain him for the period for which he might have been and should have been sentenced. Such a proceeding would fall far short of "due process of law." If this be granted, I fail to see how it can be asserted that the administrative officer may ignore the actual sentence pronounced, and substitute another, which in his opinion (in this particular case in fact) ought to have been imposed.

The prisoner should be discharged..

MCALVAY, J., concurred with MONTGOMERY, J.

PAYMENT v. MURPHY.

TENANCY IN COMMON-ADVERSE POSSESSION.

Where the purchaser of real estate, at a sale under order of the probate court, took immediate and exclusive possession of the entire property, and neither he nor his grantees ever admitted a tenancy in common, but entered and occupied under a deed purporting to convey the entire interest in the property, their occupancy was adverse to the claim of a tenant in common, and, being continued for the statutory period, barred his rights.

Appeal from Wayne; Rohnert, J. Submitted October 6, 1905. (Docket No. 76.) Decided November 7, 1905.

Bill by Ella L. Payment against Simon J. Murphy for a partition of certain real estate. Defendant filed an answer in the nature of a cross-bill to quiet title. From a decree dismissing the bill, and granting the prayer of the cross-bill, complainant appeals. Affirmed.

Galloway & Graham, for complainant.

William H. Wetherbee, for defendant.

HOOKER, J. The premises in controversy consist of a city lot, known as lot 48 of the Riopelle farm, in Detroit, and valuable buildings thereon. They were inherited by the complainant's mother-in-law from her father, at an early day, and through her death wero inherited by her children, the complainant's husband, Richard C. Payment, and his two brothers, Clovis and Alfred. As early as 1862 their father, Michael G. Payment, was their guardian, and on July 21, 1862, he sold the premises, under an order made by the probate court of the county of Chippewa, to Dominique Riopelle, the highest bidder, for $3,200 cash. This sale was duly confirmed, and the guardian conveyed the premises by deed, August 2, 1862. Before this time Richard had reached his majority. Riopelle took immediate possession, and he and those claiming through him have had exclusive possession under claim of title from that time to the time this suit was commenced, at which time Murphy was in possession. He has since died, and the suit is now defended by his executors. There was a continuous possession for 42 years and upwards.

Defendant introduced the record of a quitclaim deed of the premises from Richard G. Payment to Dominique Riopelle, dated and recorded on March 1, 1864. The complainant claims title through a deed from Richard C. Payment, dated May 9, 1900. Richard C. Payment testified that he never executed the alleged deed to Riopelle. Under this state of the title the complainant filed a bill for partition, claiming to be a tenant in common with Murphy. The learned circuit judge found that complainant was not entitled to relief, and, in accordance with the prayer of the cross-bill, made a decree dismissing complainant's bill and quieting defendant's title. The facts justify his action. If it were true that Richard's title was never lawfully conveyed, the oc

cupancy was nevertheless adverse. Riopelle and his grantees never admitted a tenancy in common, and entered and occupied under a conveyance inconsistent with the claim of only a two-thirds interest. Their occupancy being adverse, the statute of limitation has run, as under such a possession it may do, even against common owners of the title. 1 Am. & Eng. Enc. Law (1st Ed.), p. 232; 1 Cyc. p. 1072; Blackwood v. Van Vleit, 30 Mich. 118; Campau v. Dubois, 39 Mich. 274; Sands v. Davis, 40 Mich. 14; Watkins v. Green, 101 Mich. 493; Fuller v. Swensberg, 106 Mich. 317; La Fountain v. Dee, 110 Mich. 347; Weshgyl v. Schick, 113 Mich. 22.

The decree is affirmed, with costs.

MOORE, C. J., and GRANT, BLAIR, and MONTGOMERY, JJ., concurred.

BRAZEL v. THOMPSON SMITH'S SONS.1

1. CONTRACTS-CONSIDERATION-PATENT-ROYALTIES. Where two Federal courts of equal rank and jurisdiction have rendered conflicting decrees with reference to the validity of a patent, the patent and the decree sustaining it afford a sufficient consideration for a subsequent contract for royalties en. tered into by the parties with full knowledge of the decree holding the patent invalid.

2. SAME-ROYALTIES-QUESTION FOR JURY.

Where, in an action for royalties on a patented article, plaintiff admitted that, after a decree holding the patent invalid, there was a serious dispute as to the terms of the contract, but did not admit that defendant had withdrawn from the contract prior to the making of certain sales for which roy'Rehearing denied January 23, 1906.

alties were claimed, as defendant testified, it was proper to leave the question to the jury and to charge that if defendant notified plaintiff, as claimed, that he would not longer recognize the patent or the contract before the sales in question, plaintiff could not recover royalties thereon.

3. LIMITATION OF ACTIONS-ACCOUNT-ACTION ON-ITEMS. Where, in an action for royalties, there is evidence that certain charges are items of an open running account on which payments have been made within six years prior to the commencement of the suit, there is no error in refusing to charge that the items arising more than six years prior to the suit are barred.

Error to Cheboygan; Emerick, J., presiding. Submitted October 10, 1905. (Docket No. 28.) Decided November 7, 1905.

Assumpsit by Peter B. Brazel against Thompson Smith's Sons for royalties on a certain patent. There was judgment for plaintiff, and defendant brings error. Affirmed.

Frost & Sprague, for appellant.

C. S. Reilley, for appellee.

BLAIR, J. On May 13, 1884, a patent bearing that date was issued by the government of the United States to the plaintiff, covering certain improvements in snow plows. On March 2, 1885, plaintiff and defendant entered into a contract, whereby the defendant was granted the right to manufacture and sell snow plows covered by the patent in the territory embraced in the States of Michigan and Wisconsin, for a period of 10 years, in consideration of which, the defendant agreed to pay the plaintiff a royalty of $30 upon every machine sold within that territory, and a royalty of $40 upon each machine sold outside of that territory. On December 14, 1894, this contract, under which defendant had manufactured and sold snow plows up to that time, was extended by an indorsement upon the original contract-"to the limit of said within patent, and to include the whole of the United States ex

cept Minnesota," etc. It having been brought to the attention of plaintiff that machines were being manufactured and sold which infringed his patent, the plaintiff brought suit to restrain the alleged infringement of said patents in the United States circuit court for the western district of Wisconsin. This case having been heard upon pleadings and proofs, a decree was entered by the court on the 25th day of October, 1898, whereby the plaintiff's patents were held invalid, and his suit dismissed (Brazel v. Supply Co., 89 Fed. 584). After the decision annulling plaintiff's patents, the defendant continued to manufacture and sell the snow plows, and to pay plaintiff the same royalty as before, at least up to August, 1901. Upon this latter date the parties had a discussion of the effect of the decision of the Federal court in Wisconsin, and defendant claims that an agreement was then made, whereby the defendant was to pay plaintiff $15 per plow for all plows manufactured and sold. The plaintiff, however, contends that such was not the agreement, but that $15 was to be received as a royalty only in case 100 township plows were sold, which, not having been accomplished, he was entitled to the original price agreed upon of $30.

In December, 1903, the parties having disagreed as to the terms of the agreement under which they were operating, and being unable to arrive at a satisfactory settlement, the plaintiff brought this action. The plaintiff's claim, as finally presented to the jury, was made up of the following eight items:

"1. Balance per defendant's statement, $88.25.

"2. Commission on plow sold at Manistique, $25.

"3. Royalty on 34 plows sold outside of Michigan and Wisconsin previous to December 14, 1894, at $10 each, $340.

"4. Royalty on plows sold in Minnesota after December 4, 1894, 12 plows, at $10 each, $120.

"5. Amount charged to Brazel on caulk sharpener account, $338.77.

"6. 135 plows, royalty allowed at $15, which should have been $30 each, $2,025.