ground that the village had estopped itself from withholding payment from the holder of the warrant, and must look to the bond given by the American Contracting Company, Limited, for reimbursement. He also held that the warrant was in the nature of commercial paper.

Rowland M. Connor, for appellant.

Orla B. Taylor, for appellee.

MONTGOMERY, J. (after stating the facts). Mr. Justice Field, in Wall v. County of Monroe, 103 U. S., at page 77, in speaking of warrants in every way similar to the one under consideration, said:

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"They are orders upon the treasurer of the county to pay out of its funds for county purposes not otherwise appropriated the amounts specified. They establish prima facie the validity of the claims allowed and authorize their payment. But they have no other effect. The warrants being in form negotiable are transferable by delivery so far as to authorize the holder to demand payment of them and to maintain in his own name an action upon them. But they are not negotiable instruments in the sense of the law merchant, so that, when held by a bona fide purchaser, evidence of their invalidity or defenses available against the original payee would be excluded. The transferee takes them subject to all legal and equitable defenses which existed to them in the hands of such payee."

Numerous cases have been decided in harmony with, this holding, including a decision in point by this court. See Miner v. Vedder, 66 Mich. 101. See, also, School District Township of Newton v. Lombard, 2 Dill. (U. S.) 493.

Relator's counsel does not insist that this paper is negotiable within the law merchant, but claims that the village is now estopped, after renewing the paper in the hands of the bank, from refusing payment; that the village has elected to rely upon the bond both by the original issue of the order and by its repeated renewal. We do not con

sider this position tenable. It is true the village council is by section 2872, 1 Comp. Laws, given power to borrow money in anticipation of the collection of special assessments actually made, not in excess of the assessment; but not only is this order in excess of the unused portion of the assessment, but the transaction was in no sense a borrowing of money. The issue of the first order was an attempt to advance the paper of the village to a contractor to whom no money was at the time due. Had it brought suit upon this order, the court could not have entertained the contention that the village had borrowed money. The village had no power to lend its credit. As we have seen, had the bank undertaken to enforce the original order, it would have had to meet the same defenses which would have been open as against the payee. No new consideration has passed either from the bank or Rorison, and the rights of neither are greater than they would have been under the original warrant.

The order is reversed, with costs.

MOORE, C. J., and CARPENTER, MCALVAY, and OSTRANDER, JJ., concurred.

TROMBLY v. KLERSY.1

1. GIFTS-DELIVERY-NECESSITY.

Where the payee of a note after it was executed told the maker that he need only pay the interest, and the debt would be canceled by will at the payee's death, but retained possession of the note, there was no such delivery a's to constitute a gift of the note by the payee to the maker.

2. CONTRACTS-CONSIDERATION.

An agreement by the payee of a note after it was executed to cancel the same at his death, by will, upon the regular payment of interest by the maker, was without consideration and void.

Error to Wayne; Rohnert, J.

Submitted June 13, 1905. (Docket No. 4.) Decided July 21, 1905.

Assumpsit by Robert Trombly, guardian of the person and estate of Joseph Buhler, an incompetent, against Andrew Klersy on a promissory note. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error. Affirmed.

This suit is based upon a promissory note dated February 3, 1900, for $1,000, made by defendant, and payable to the order of Joseph Buhler, an incompetent person, of whose person and estate the plaintiff was duly appointed guardian. With the plea, notice was given that said note was given by Joseph Buhler to defendant upon condition that defendant "pay to said Buhler interest upon said principal sum for and during the natural life of said Joseph Buhler at the rate of five per cent. per annum, and that he (said Joseph Buhler) had canceled said principal indebtedness, as evidenced by said note, by testamentary bequest in his (said Joseph Buhler's) last will."

The note was a renewal of one for the same amount ex'Rehearing denied December 30, 1905.

ecuted in 1894.

Defendant admitted the receipt of the money and the payment of interest. Defendant testified that in December, 1896, he had a conversation with Mr. and Mrs. Buhler, in which they said that after their death everything would be free and clear, and that all he had to do was to pay the interest; that the debt was to be canceled by will as was also another indebtedness of $12,000 from the defendant to Mr. Buhler, secured by mortgages, but that nothing of that kind was said when he borrowed the money. One witness (a Mrs. Rommeck) testified that after Mrs. Buhler's death Mr. Buhler said to the witness "that everything Mr. Klersy owed him-the whole thing -he should pay the interest on it now, because he had to live on the interest, but after his death everything should be his;" that Mr. Buhler made a will with such a provision in it, and that she was present at the time. The scrivener who drew the will testified that the will then drawn did not contain such a provision, and that that will was not now in existence. There is no evidence of the execution of another will.

The court directed a verdict for the plaintiff on the ground that there was no evidence of a gift.

William Look, for appellant.

De Forest Paine, for appellee.

GRANT, J. (after stating the facts). The instruction was correct. Mr. Buhler retained the possession of the note, and the record is barren of any evidence tending to show that he delivered it to the defendant, or to any one for him. The delivery essential to constitute a gift was therefore wanting. If it be insisted that there was an agreement to cancel the note at his death by will, upon the regular payment of interest, such an agreement was without consideration and void. The same defense was made by this same defendant in a suit to foreclose the mortgages, and the same testimony introduced to defeat the suit; and we held that there was no gift, and no con

sideration for any promise to cancel the debt. 139 Mich. 209.

We find no error in the rulings of the court in excluding testimony.

Judgment affirmed.

CARPENTER, MCALVAY, MONTGOMERY, and OSTRANDER, JJ., concurred.

KATZINSKI v. GRAND TRUNK RAILWAY CO.

1. RAILROADS-YARD-DUTY TO FENCE.
The law does not require a railroad company to fence its yard.
2. SAME-INJURIES TO TRESPASSER-WARNING NOTICE.
Where a railroad company has posted warning notices along
its yard limits notifying all persons to keep off the tracks, it
is not liable to a child for injuries which it receives by going on
a track filled with cars liable to be moved at any time, on
mere proof that children are in the habit of playing on or
near the tracks.

Error to Wayne; Frazer, J. Submitted June 14, 1905. (Docket No. 8.) Decided July 21, 1905.

Case by Martha Katzinski, by her next friend, against the Grand Trunk Railway Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. Affirmed.

Warsaw Place is a short street, with one end leading into St. Aubin avenue, and extending to the railroad yard of the defendant. In the yard at this point were four