and transferred to the remaining partners his right, title, and interest in all the assets, which included his own note and mortgage. Under the allegations, all title in him passed to complainants, and lodged in them the power to proceed to enforce the collection, as though the mortgage had been given by a stranger to the firm. Partners may deal with each other as individuals, and, when they have so done, a suit at law to enforce the contract is applicable. Carpenter v. Greenop, 74 Mich, 664, 42 N. W. 276; Smith v. Kemp, 92 Mich. 357, 52 N. W. 639. This is a suit in equity, and, if Keys claimed payment, or that under the arrangement it was necessary for a partnership accounting in order to determine the amount due upon his note and mortgage, he could file an answer in the nature of a cross bill. Bane, as a subsequent purchaser or lienholder, has a right to redeem, and is also entitled to have the amount due upon the mortgage determined. The parties are not in a court of law, but in equity, where all their rights can be protected.

2. Under the allegations of the bill, Bane is a subsequent lienholder, and, under the statute, is a proper party defendant. The case of Dickerson v. Uhl, 71 Mich. 398, 39 N. W. 472, has no application, because there the claim of the defendants antedated the mortgage which was in process of foreclosure. In the present case Bane's lien is subsequent in date, and his right of priority must be determined by the fact of actual notice of the existence of the mortgage. The statute providing for foreclosure suits contemplates the settlement of just such suits. The decree is affirmed, and the case remanded, with leave to the defendant to answer in accordance with the rules and practices of the court. The other justices concurred.

SPAULDING et al. v. O'CONNOR et al. (Supreme Court of Michigan. Dec. 13, 1898.) TAXATION-SALE-VACATION-NOTICE-AFFIDAVIT OF PUBLICATION.

1. An affidavit of the publication of an order and petition in a tax-sale proceeding, which does not allege that the order preceded the petition, as required by law, but which has attached to it a single clipping, containing the complete publication in the proper order, is sufficient.

2. An affidavit of publication of an order and petition in a tax-sale proceeding is sufficient, although it merely refers to them as a "notice," when the papers attached clearly show that the statute has been complied with.

3. An entry of a decree in the chancery record is sufficient, although there is no calendar entry and no decree is filed.

4. Under Pub. Acts 1893. p. 389, § 70, providing that no tax sale shall be set aside after confirmation, "except in cases where the taxes were paid or the property was exempt from taxation. In such cases the owner may move the court, within one year after he shall have notice of such sale, to set the same aside,"

-no sale will be set aside for irregularity, even within one year, except in the classes mentioned, although section 73 fixes a period of five years in possession as a period after which no sale can be set aside.

Appeal from circuit court, Monroe county, in chancery; Edward D. Kinne, Judge.

Bill by De Witt C. Spaulding and another against William O'Connor and Roscoe D. Dix, auditor general, to review a tax sale. From a decree setting aside the tax deed, all parties appeal. Reversed.

Keena & Lightner (John H. Goff and Willis Baldwin, of counsel), for complainants. C. H. Rose, for defendants.

HOOKER, J. In 1891, Vahey owned the premises in question, and gave to Spaulding a mortgage upon them. In 1892, Vahey deeded to Bishop, and the land was assessed to him in 1892, and in March of that year he paid the delinquent taxes for 1891. Spaulding foreclosed his mortgage, and received a sheriff's deed in 1894. He ascertained in 1896 that Bishop had not paid the taxes, and that O'Connor claimed to own the land under a tax deed, and he wrote to the auditor general and county treasurer in relation to the same, and paid the amount due for redemption for the year 1893. In May, 1896, Spaulding executed and delivered to Lightner, as security for indebtedness due from him to Keena & Lightner, a warranty deed of the premises.

O'Connor refused to accept a tender of $50 for his interest under the tax sale for taxes of 1892, and, the proceedings having been enrolled, Spaulding obtained leave to file a bill of review in January, 1897. With this order this court refused to interfere, and the cause was heard, resulting in a decree setting aside O'Connor's deed, but requiring the payment by 'petitioners to O'Connor of $100 in addition to the amount paid by him for taxes and interest. Both parties have appealed.

In support of the decree, counsel urge that there was a want of jurisdiction in the tax proceeding, and that no decree was filed. The first point is based upon the affidavit of publication, which is as follows: "State of Michigan, County of Monroe--ss.: Fred D. Elmer, being duly sworn, says that he is foreman of the Monroe Commercial, a newspaper published and circulated in said county of Monroe, and that a notice of which the annexed printed notice is a true copy has been duly published in said paper once each week for four successive weeks; and the first publication thereof was on the 5th day of October, A. D. 1894. Fred D. Elmer. Sworn and subscribed to before me, this 2d day of November, A. D. 1894. D. T. Elmer, Notary Public."

Two points are made against it, viz.: That it does not show that copies of the petition and order of hearing were published, but that a notice was published; and that it does not show that the order preceded the petition, as

required by law. An inspection of the original affidavit shows that it has attached to it a single clipping from a newspaper, and nothing else, and that upon this clipping the order and petition are printed in the order specified. The affidavit calls them a notice, which they are, in a sense; but it is also obvious that they are the instruments required by law to be published, and nothing else, and, being upon a single piece of paper, we should do violence to common sense did we not understand the statement that the document was a copy to show that they were published in the order shown by the copy. It is obvious that the "notice attached" is a clipping from the newspaper of one of the publications. It conforms to the statute, and we think the proof of publication should not be held invalid because it calls the copies of the order and petition "a notice," when the papers attached clearly show the statute to be complied with. Garner v. Wallace (Mich.) 76 N. W. 758.

No decree is found upon the files of the court, nor is there a calendar entry of a decree. There is, however, an entry of a decree in the chancery record, with the name of the circuit judge attached, countersigned by the register, with the date of filing appended.

To our minds this is sufficient evidence that a decree was duly made and filed, and its contents are preserved as required by law. It is as convincing evidence of its filing as a calendar entry would be, and better evidence of its contents. We must assume that the register followed the requirements of the law, by entering the decree after it was made, signed, and filed, rather than to conclude that he entered a fictitious decree.

These appear to be the principal questions discussed in the complainants' main brief. A second brief asserts that the property was excessively assessed, and that the tax was $2.24 more than it should have been. This is disputed, but we do not investigate the question, because it was settled by the decree. We are asked to open these proceedings upon the claim that the petition is filed within one year after the complainants received notice of confirmation of the sale. The statute (Pub. Acts 1893, p. 389, § 70) provides that "no sale shall be set aside after confirmation, except in cases where the taxes were paid or the property was exempt from taxation. In such cases the owner may move the court, within one year after he shall have notice of such sale, to set the same aside, and the court may so order upon such terms as may be just." This case is not within the classes mentioned as exceptions to the prohibition, and it is not our province to enlarge the statute.

It is urged that, under the general chancery practice, the court has power to open a decree, upon petition, at any time before enrollment, and to set it aside upon bill of review filed after enrollment. In the case of Benedict v. Auditor General, 104 Mich. 271,

62 N. W. 364, we held that a decree might be opened upon petition in ordinary chancery cases before enrollment, and in that case the decree was set aside in such a proceeding upon the ground that the court did not acquire jurisdiction. Section 70 of the tax law provides that "all sales shall stand confirmed, unless objections are filed within eight days after the time limited for filing the report of sale. The practice with

reference to setting aside such sale shall be the same, so far as applicable, as in the sale in equity on the foreclosure of mortgages: provided, no sale shall be set aside for inadequacy of price except on payment of amount upon such sale with interest and costs, and provided, further, that no sale shall be set aside after confirmation except in cases where the taxes were paid, or the property was exempt from taxation. In such cases the owner of the lands may move the court at any time within one year after he shall have notice of such sale." The practice of setting aside sales upon foreclosure is not a statutory one, but is done in the exercise of a power essentially equitable, inherent in the court of chancery. Its exercise is not limited to cases where there is irregularity, but, where the sale is not void, special circumstances appealing to equitable considerations must exist. Page v. Kress, 80 Mich. 85, 44 N. W. 1052; Mining Co. v. Mason, 145 U. S. 349, 12 Sup. Ct. 887. Not only must there be equitable considerations to move the court, but there must also be an absence of laches. Lyon v. Brunson, 48 Mich. 194, 12 N. W. 32; Goodwin v. Burns, 21 Mich. 211; Bullard v. Green, 10 Mich. 268; Leonard v. Taylor, 12 Mich. 398. And a much stronger case must be made out after confirmation than before it. Bullard v. Green, 10 Mich. 268. It is this practice that the legislature has attempted to deal with in the section quoted, and has limited the power of the court to set aside sales for irregularities, except in two classes of cases, to the period preceding confirmation. This does not necessarily limit the time to eight days after sale, as the confirmation may be deferred. If we hold that a sale may be set aside for irregularities other than the two excepted, upon petition filed after confirmation, we shall have difficulty in finding a purpose for this provision, and in such case it might as well have been omitted from the law. Section 73 is cited as a basis for the claim that the legislature could not have meant to so limit the right to move to set aside the sale by petition, because under that section it fixes a period of five years in possession as a period after which no sale can be set aside by any court; but we are of the opinion that this provision is in effect a statute of limitation, and, after the running of that statute, a possession under a sale upon a void decree protects the occupant. In the Benedict Case, we have recognized that a sale upon proceedings without juris

diction might be set aside upon petition, and by doing so we have necessarily determined that the prohibition in section 70 did not apply to that kind of a case. In that case the sale and all proceedings were absolutely void for want of jurisdiction, and no title could be acquired upon such sale except in cases when a possession of five years would preclude attack upon it, under section 73. It was held by this court in the case of Crawford v. Tuller, 35 Mich. 57, that one who attacks a judicial sale as invalid after strangers have acquired rights under it must do so by some original proceeding, in which an issue can be formed and tried in the ordinary way, and the persons concerned brought in as parties. Under the facts shown in the Benedict Case, the sale and deed were void, and might have been attacked in a suit to remove a cloud or upon ejectment. Perhaps it would have been a more technically correct course had we dismissed the petition in that case as precluded by section 70, leaving the petitioner to proceed in another way to get rid of the cloud upon his title. That course, however, would have left the question undetermined, and, as all of the parties were before the court, there seemed to be no obstacle to a disposition of the case, except a rule of equity practice and a technical and strict construction of section 70. We are of the opinion that a reasonable construction of that section may exclude jurisdictional questions from its terms, as was done in Benedict v. Auditor General, supra. But other defects in the procedure, which are mere irregularities, and therefore do not make the decree void, cannot be excluded, if we give any effect whatever to the statute. We may also be justified in inferring that section 70 was designed, not only to permit the setting aside of sales, to the end that a fairer sale might be made, but that it was intended to relieve a party against any sale in a meritorious case, within its terms; and that the practice by petition might be resorted to before confirmation, in case of a want of jurisdiction to declare the entire proceeding void, cannot be doubted. That being so, we see no reason to deny the remedy after confirmation, upon the ground merely that the procedure is irregular.

Complainant held a mortgage upon these premises from 1891, and obtained title under a sheriff's deed made in 1894, yet the taxes were delinquent from 1892, and he gave himself no concern about taxes until informed of the defendant's deed. It is true that the defendant has acquired title to this land for a nominal sum, and the complainant's interest has been sacrificed, and the sympathies of courts as well as the public go towards the loser in such cases, notwithstanding the fact that inexcusable negligence may alone have made the situation possible, but we are not at liberty to allow such questions to enter into the disposition of causes. The decree of the circuit court is reversed, with costs of both courts. The other justices concurred.

TIONS WITNESSES-COMPETENCY.

1. In a prosecution for stealing a thoroughbred Cotswold ram, kept for breeding purposes, questions as to the "value of that kind of a ram" at the place and time of the alleged theft, and as to the "value of full-blooded Cotswold rams," are not objectionable in form, as calling for his value as mutton.

2. A butcher, who bought sheep, cattle, and hogs, and a stock buyer, who bought sheep on speculation, are competent to testify to the value of a ram for breeding purposes.

Appeal from district court, Linn county; H. M. Remley, Judge.

Defendants were indicted, tried, and convicted of the crime of stealing two hogs, one sheep, and one ram, and from the sentence imposed they appeal. Reversed.

John M. Hughes, for appellants. Milton Remley, Atty. Gen., and J. M. Grimm, Co. Atty., for the State.

DEEMER, C. J. The state offered evidence to show that the ram was a fullblooded Cotswold, worth in the market at Cedar Rapids $30, and he was bought and used by the prosecuting witness for breeding purposes. Defendants produced witnesses to show the value of the animal, and to one of them propounded the following questions: "Did you know the market value of that kind of a ram in and about Cedar Rapids about the 15th day of December, 1897?" To this an objection was sustained. He was then asked: "Do you know the value of full-blooded Cotswold rams?" An objection to this question was also sustained. Questions of similar import were propounded to other witnesses, and objections thereto were sustained, the court evidently being of the opinion that the questions called for the value of the animal as mutton. It is evident that the questions which we have set out do not call for that kind of a an answer. One witness stated that he was a butcher, and that he was in the business of buying sheep, cattle, and hogs. Another said that he was a stock buyer, and knew the market value of sheep, as he bought them in a speculative way. He was then asked if he knew the market value of the ram, and the court refused to allow him to answer. It is manifest that these rulings were erroneous. And, as the value of the property was a material ingredient of the offense, the errors were highly prejudicial. The judgment is reversed.

WILLIAM DEERING & CO. v. BEATTY et al.

(Supreme Court of Iowa. Dec. 15, 1898.) SELLING AGENCY-EXCLUSIVENESS-APPEAL-UNNECESSARY ABSTRACT-COSTS.

1. An agreement to appoint a firm as agent "for receiving, keeping, and selling in their behalf" the first party's harvesting machinery

and parts and binding twine, "on commission, for the following territory only, J. county, for the entire season of 1891," with a power of revocation reserved, does not confer an exclusive selling agency.

2. Where an amendment to an abstract covered 45 pages, setting out questions and answers, and the conclusion was reached on the appellant's abstract alone, the appellee, though successful, will be taxed with all but three pages of such unnecessary abstract.

Appeal from district court, Jefferson county; M. A. Roberts, Judge.

In December, 1890, the plaintiff and defendant companies entered into a written contract for the sale by defendant, on commission, of the plaintiff's harvesters, binders, etc., for the year 1891, in Jefferson county; and in May, 1891, the parties made another written contract for the sale to defendant of binding twine to be delivered on or before June 1, 1891. In pursuance of these agreements the plaintiff furnished to defendant machines, twine, and repairs, for which it claims, as due it, the sum of $1,788.10, and it asks an accounting and judgment. The defendant admits the making of the contracts, but denies the accounting as made by plaintiff. The defendant, by way of counterclaim, shows that after the making of the agreement, in December, 1890, and in pursuance of it, it entered upon its duty as agent for plaintiff in Jefferson county, purchased and received from plaintiff large amounts of goods and wares, specified in the contract, and proceeded at great expense to advertise the same in the markets of said county, and before its customers therein, and that it worked up a good market and a large demand for said goods by its labor and the expenditure of money, and would have sold large quantities of the goods, and made large profits and gains thereby; that in the midst of the season of 1891 the plaintiff, in violation of the duty it owed defendant, entered the county of Jefferson, and willfully and maliciously cut the prices of its own goods and wares, which were in the hands of the defendant, and offered to and did sell the same to defendant's customers below the retail prices, and thereby prevented defendant from making sales, by which defendant was prevented from making profits and gains in the sum of $1,000, for which amount judgment is asked. By an amendment to the answer, it is averred that the written contract of December, 1890, does not express the intention of the parties, and that in its making the parties intended and understood that the contract should be for the appointment of defendant as the sole and exclusive agent for plaintiff in Jefferson county for the year 1891; and a reformation of the contract is asked, to conform to such intention of the parties. Issue is taken upon the averments as to a counterclaim and for reformation of the contract. The cause proceeded to trial as an equitable one, and the court denied defendant's counterclaim, and any rule by way of reforming the contract, and gave the judgment for plaintiff, from which the defendant appealed. Affirmed.

Leggett & McKemey, for appellant. Raney & Simmons, for appellee.

GRANGER, J. 1. Appellant presents two questions for consideration: First, does the written contract by its terms grant to defendant the exclusive agency or right to sell plaintiff's machinery in Jefferson county? and, second, if it does not, is there evidence on which the contract should be reformed so as to grant such a right? We first consider the legal effect of the contract on its face, and the following are the provisions of it that we think material for the purpose: "Fairfield, Iowa, December 13, 1890. Memorandum of an agreement between William Deering & Company, a corporation, of Chicago, Illinois, and Beatty & Company, of Fairfield, county of Jefferson, and state of Iowa: (1) Said William Deering & Company have appointed Beatty & Company agent hereunder, and for receiving, keeping, and selling in their behalf their harvesters, binders, reapers, mowers, twine, extra parts, trucks, bundle carriers, flax carriers, and other attachments, on commission, for the following territory only, Jefferson county, for the entire season of 1891. (2) Said agent agrees to perform all the duties of such agency with prompt business diligence and due care and skill. This agency may at any time be determined by said William Deering & Company without liability for damages, and they may at once take possession of the goods or property unsold, and of everything in the hands of the said agent in any way relating to the business." The contract contains numerous other provisions relating to the method and details of carrying the contract into effect, but we see nothing to aid in the solution of the question before us. The conclusion on this branch of the case is not doubtful. The contract contains no words of an exclusive tenor. It simply gives a right to sell on commission in Jefferson county for the entire season of 1891, with a subsequent provision for a revocation of the agency by the plaintiff at any time. The character of appellant's argument leads us to think there is no serious contention over this proposition. The next question is one of fact, and one of greater doubt. From our separate readings of the record, there is no difference of conclusion on this branch of the case, and it is in harmony with that of the district court. Much reliance is placed on former contracts and dealings of the parties of the same character to show the intent in making the contract in question, but there is nothing in it, with the other facts disclosed by the evidence, to overcome the conclusive language of the contract itself. Less than the substance of all the evidence would not show on what our conclusion is based, and we cannot and need not set it out.

2. There is a motion to tax to appellee the costs of an amendment to the abstract, and the motion is, in the main, well taken. The amendment consists of 45 pages, much of which is by question and answer, and unneces

sarily so, which is proven by the fact that we reach our conclusion alone on the record as disclosed by appellant's abstract. Of course, we realize that parties cannot know in advance how the record may be regarded, and that in its preparation they must be guided by what reasonably appears to be necessary to a proper presentation of the case; and by that rule we must determine such questions as the one before us. Guided by that rule, we think three pages are all that was necessary by way of an amendment, and the costs of appellee's abstract in excess of that amount will be paid by appellee. The judgment is affirmed.

STATE v. GOERING.

(Supreme Court of Iowa. Dec. 14, 1898.) ASSAULT AND BATTERY-SELF-DEFENSE-CHARGE. 1. Where, on a trial for assault, there was evidence justifying a charge as to self-defense, a charge conveying the idea that one assaulted cannot defend himself unless it reasonably appears that his life is in danger, or that he is likely to suffer great bodily harm, is erroneous, since one assaulted may repel force with force.

2. Where affirmative error appears in a charge, accused is not estopped to urge the objection on appeal by failure to ask a different charge.

Appeal from district court, Marion county; J. D. Gamble, Judge.

Defendant was charged by indictment with the crime of assault with intent to inflict a great bodily injury. From a judgment of conviction, he prosecutes this appeal. Reversed.

Crozier & McCormack, for appellant. Milton Remley, Atty. Gen., and W. C. Kinkead, for the State.

WATERMAN, J. The assault is charged to have been made upon one Lewis Leits. The evidence is not before us. The record we have sets out the indictment and the instructions given the jury, and this statement of facts: "There was evidence on the part of the state tending to prove that the defendant struck and beat one Lewis Leits with a club and whip, the said Lewis Leits being at the time unarmed. On the part of defendant, there was evidence tending to show that the said Lewis Leits assaulted the defendant with a knife in his hand, and that, when said assault was made, the defendant struck him several blows, but with his fists only, and that he did not at any time strike him with anything but his fists." The sole complaint is of the tenth paragraph of the court's charge to the jury, which is as follows: "The defendant pleads not guilty, which plea puts in issue every material fact necessary to support the indictment, and which must be established by the evidence beyond a reasonable doubt. And, for further and additional defense, the defendant claims that, at the time of the altercation with the said Lewis Leits, he was acting in self-defense. It is incum

bent upon the state to prove beyond a reasonable doubt that the defendant at the time did not act in self-defense. It is a law that a person may resist force with force in the defense of his person against one who manifestly intends or endeavors by violence to kill him or inflict upon him great bodily injury, and if a conflict ensues in such a case, and injury follows, such resistance is justifiable. To justify the defendant, however, in thus resisting and inflicting such injuries in selfdefense, he is authorized to use such force, and such force only, as may be necessary, or appear to him, as a reasonably careful, prudent, and cautious man, to be necessary, to protect himself from injury. While the danger must be imminent and perilous, yet it is not necessary that the danger should be ac tual, but it must appear to him, as a reasonably careful, prudent, and cautious man, to be actual, and such as that a reasonably careful, prudent, and cautious man would have good reason to believe that his life was in danger, or that he was about to suffer bodily injury. And, if such be the fact, he would then be authorized, under the law, to make resistance thereto, even though such resistance might result in the death of his assailant, or in his suffering great bodily injury. Where an assault is made, and there is a reasonable opportunity for the assailed party to withdraw and avoid the conflict and the threatened or feared injury, it is his duty to withdraw and avoid the conflict or injury. If he has such reasonable opportunity to withdraw, and fails to do so, then he would not be justified in self-defense in inflicting painful or hurtful wounds upon his assailant. An assailed party is not required to run away or withdraw when an assault is made with such a violence that he cannot safely withdraw, or if it appear to him, as a reasonably careful, prudent, and cautious man, that he could not safely withdraw and avoid the conflict and the injury threatened; but under such circumstances he would be authorized to stand and resist the assault with such force, and only such force, and with such weapons or means, as were necessary therefor, or such as would appear to him as a reasonably careful, prudent, and cautious man, under like circumstances necessary therefor. And in this case, if you find from the evidence that Lewis Leits assaulted the defendant in such a manner and under such circumstances as that the defend ant did believe, or as a reasonably careful, prudent, and cautious man had reason to believe, that he was about to be killed, or to suffer some great bodily injury, and that he could not withdraw and avoid the assault and encounter, then he would be justified in using such force, and such force only, as would enable him to resist the assault, and protect his life, or protect himself from such great bodily injury, and would be authorized, if it were necessary, as hereinbefore defined, to inflict upon the said Lewis