fendant to guaranty the payment of debts contracted by Mr. Raynor, Jr., from time to time. Such a rule has often been stated by eminent jurists. 12 East, 227; Cremer v. Higginson, 1 Mason, 336, Fed. Cas. No. 3,383; Russell v. Clarke's Ex'rs, 7 Cranch, 69. On the other hand, there are authorities countenancing the doctrine that a liberal construction is to be given in such cases in favor of a person claiming rights under such a guaranty, and holding it to be the duty of the guarantor to limit his guaranty expressly to a single dealing if he would avoid a further responsibility. Thus, in the case of Merle v. Wells, 2 Camp. 413, where Lord Ellenborough says: 'If a party means to be a surety only for a single dealing, he should take care to do so.' Probably the better rule of construction would be that ap plied to other contracts,-to give the instrument that effect which shall best accord with the intention of the parties as manifested by the terms of the guaranty, taken in connection with the subject-matter to which it relates, neither enlarging the words beyond their natural import in favor of the creditor, nor restricting them in aid of the surety." This is the rule laid down in 1 Brandt, Sur. § 156, in which it is said: "The true rule for construing guaranties is to give effect to the intention of the parties as expressed in the instrument read in the light of the surrounding circumstances." Willes, J., in Heffield v. Meadows, L. R. 4 C. P. 595, in deciding whether a guaranty was continuing or not, said: "It is obvious that we cannot decide that question upon the mere construction of the document itself without looking at the surrounding circumstances to see what was the subject-matter which the parties had in their contemplation when the guaranty was given. It is proper to ascertain that for the purpose of seeing what the parties were dealing about; not for the purpose of altering the terms of the guaranty by word of mouth passing at the time, but as part of the conduct of the parties, in order to determine what was the scope and object of the intended guaranty. Having done that, it will be proper to turn to the language of the guaranty to see if that language is capable of being construed so as to carry into effect that which appears to have been really the intention of both parties." In Pipe Co. v. Ganser, 58 Mich. 385, 25 N. W. 377, the plaintiff claimed that the bond sued upon contained a continuing guaranty. The rule laid down in Brandt on Suretyship was applied. It was said that "showing the circumstances under which the contract is made, and the subject-matter to which it relates, does no more than aid the court and jury to better understand the true sense in which the words are used and understood by the parties." See, also, Bell v. Bruen, 1 How. 187; Sewing-Machine Co. v. Winchel, 107 Ind. 260, 7 S. E. 881; Bank v. Kingman, 16 Gray, 473. In the light of this rule, what construction is to be placed upon this bond? It is admitted that notice of revocation would not affect the liability of the obligors upon previous discounts. The bond itself recites that the "obligors are stockholders and interested in the business of the Detroit Motor Company"; that "for the successful and more advantageous management of the trade and business of said corporation, it is necessary from time to time to borrow money to the amount of $30,000"; that "the secretary has, by resolution of the board of directors thereof, been, and is hereby, duly authorized to make or indorse negotiable paper of or for such corporation for such loans, from time to time, during the next ensuing twelve months, as he may find necessary to carry on the business of said corporation, not exceeding in the aggregate $30,000.” It also recites that the "obligors have consented, and do hereby consent, to become security, jointly and severally, for the payment of such indebtedness in accordance with the terms of the negotiable paper issued or to be is sued and discounted as aforesaid." It thus appears from the bond that the Detroit Motor Company was without cash capital to operate its business; that the obligors on the bond were its stockholders and directors and interested in the successful management of the business. They recognized the necessity of borrowing money to carry on the business. They made a forecast of the needs of the business for the ensuing year. and concluded that it would require $30,000, and took this method of borrowing the amount decided upon; and the bond contemplated that the business should be carried on during that 12 months without interruption. This was evidently the construction put upon it by all the parties, as shown by their previous dealings under other and similar bonds. It is conceded by counsel for defendants that the obligors might, doubtless, have made themselves liable, as claimed by the bank, had the bank parted with any valuable consideration; but the contention is that when the bond was given no consideration passed, that the fact that the bank had previously discounted paper of the company does not affect the question, that a past-due consideration will not support a present agreement. It is not the mere fact that the bank had discounted paper of the company, which it still held at the time this third bond was given, but the fact that the bank held the second bond as security for the paper which it had previously discounted, and then held, and refused to continue, the loan unless a new bond was given. Undoubtedly, payment of the paper would have been required had not the new bond been given. This was not only a contract between the company and the bank, but also a contract between the sureties themselves, who were stockholders and interested in the continuance of the business. It was a contract, under the findings of the court below, in which the entire consideration of $30,000 passed at the time of the acceptance of the bond and the surrender of the former bond; and, under well-settled rules, could not have been revoked by the obligors, In and consequently was not revoked by the death of Mr. Jones. That finding by the court has been fully set out. It is supported by the facts and circumstances surrounding the case. It was the interest of all the parties that this business should continue for the entire time fixed by the bond, and it was not contemplated that any one of the obligors might give notice and terminate the arrangement made with the bank to discount and renew paper. It is the general rule that when the engagement of a surety is a contract, and not a bare authority, it is not usually revoked by his death, and his estate remains liable the same as he would have been had he lived. Whether one undertakes for himself or others future transactions, the contingency that death may remove him before the obligation can be fulfilled must be regarded to be in the contemplation of the parties, and that the obligation will be unaffected by that event. Brandt, Sur. § 133; Green v. Young, 8 Greenl. 14; White's Ex'rs v. Com., 39 Pa. St. 167. Bank v. Gay, 57 Conn. 224, 17 Atl. 555, which counsel for defendants cite, it appeared that the bond, by its terms, did not provide for carrying on the business for a definite time, and it expressly provided for revocation on notice by any one of the obligors at any time. In Gay v. Ward, 67 Conn. 147, 34 Atl. 1025,-a suit for contribution on the same bond as in the former case,-the court held that it was a continuing guaranty, which covered all renewals, substitutions, and extensions made while the contract was in force. In discussing the question of revocation, the court held that, unless its terms forbade it, the contract of continuing guaranty might be revoked on notice to the guarantee. The court also held that the bond was revocable, for the reason that it contained a specific reservation to the sureties that they might cancel their liability by giving notice, and that the death of any one of the sureties, so far as his estate was concerned, operated the same as notice provided for in the bond itself; but the court added: "The question whether the guaranty will be revoked by notice or death when, by the terms of the guaranty, the guarantor could not, in life, have revoked the guaranty, is not before us, and we express no opinion upon this point." It is evident, therefore, that these cases have no weight in determining the question here involved. The court below very properly held that from the terms of the bond and the surrounding circumstances the bond was not revoked by the death of Mr. Jones. It stood as a continuing guaranty for one year from its execution and delivery, and the bank had the right to discount and renew paper for the company up to the time of its expiration; and the sureties on the bond, including the estate of Mr. Jones, must be held liable therefor. 2. The other claim is on the $5,000 note indorsed by Mr. Jones and others. The defense to this note is based upon the grounds: First, that it was the duty of the bank, in order to hold the indorsers upon it, to present it for payment within a reasonable time, which time would be much shorter than that which actually elapsed before the presentment, and that that delay was such laches as to discharge the indorsers; second, that the indorsers are discharged because the bank did not notify them of the failure of the Detroit Motor Company to pay, and that no notice was given to them of the demands made verbally upon the company in the spring of 1893, or of the demand by letter on June 16, 1893. Upon the first point, counsel for the bank contends that the note was a continuing security upon which the indorsers remained liable until presentment, however long the time which might elapse before it was presented, in view of the fact that the court below found it to be a permanent loan. Exception was taken by defendants' counsel to this finding, and it is now claimed that there was no evidence to sustain such finding. The testimony is returned in the bill of exceptions. The findings show that the note was given January 15, 1891; that no demand of payment was made, or notice of such demand given, until July 24, 1893. We find no testimony in the record which warranted the finding that this was regarded as a permanent loan. Mr. Elwood T. Hance, one of the indorsers on the note, and one of the directors of the Detroit Motor Company, was called as a witness for the plaintiff, and testified on cross-examination that, if the note had been presented in 1891, it would have been paid; that the financial difficulty came upon the company in the latter part of 1892. The note must, therefore, be treated as an ordinary demand note, and the rights of the parties settled by the rules applicable thereto. The cases are at variance upon this rule. The court of appeals of New York held in Merritt v. Todd, 23 N. Y. 28, that a promissory note payable on demand, with interest, is a continuing security, and that an indorser remains liable until an actual demand; that the holder is not chargeable with neglect in omitting to make a demand within any particular time. This case has since been criticised, not only by other courts, but by that court; and in Parker v. Stroud, 98 N. Y. 385, that court said: "Since the case of Merritt v. Todd, no determination contrary to the principles there laid down has been made in this state, and, although that decision has been somewhat criticised in later cases, it has now been acquiesced in too long as the law of the land to be open to question or dispute." This doctrine has not been followed in other states, and the great weight of authority is that demand notes must be presented for payment within a reasonable time, and, in case of nonpayment, notice must be given as in other cases to indorsers. In Perry v. Green, 19 N. J. Law, 61, the question was squarely presented. The action was upon a promissory note for $200, dated June 2, 1835, payable on demand, with interest. There was no demand of pay ment until March 19, 1839. Plaintiff claimed that it was understood between the parties that it was to be a permanent loan, though there was no time of payment agreed upon except as expressed in the note. The court, in stating the case, said that, if there had been any agreement as to the time when the note should be paid, it could not affect the rights of the indorser unless he was a party to the agreement; and even then it might well be doubted whether parol evidence of any agreement to extend the time of payment, thus altering the force of the written contract, would be admissible. The note was transferred to the plaintiff for money borrowed. Some contention was made that, the note being payable with interest, it was thereby taken out of the rule applicable to commercial paper. It was said that it was a note upon which immediate payment might be demanded; that the indorser contemplated a short credit, and that that was the consideration upon which he agreed to be responsible; that if it was the object of the borrower to effect a permanent loan, and a protracted day of payment was in the contemplation of the parties, a corresponding note would have been drawn; and that the borrower would not have put it in the power of the owner of the note to call upon him immediately for payment. It was held that the demand should have been made earlier, and that the judgment should have been directed for defendant. In Field v. Nickerson, 13 Mass. 131, the note was payable on demand, with interest. It was given for money loaned. The action was against the indorser. No demand was made for eight months, and it was held that it should have been made earlier. The cases of Rice v. Wesson, 11 Metc. (Mass.) 400, Thielman v. Gueble, 32 La. Ann. 260, Turner v. Mining Co., 74 Wis. 355, 43 N. W. 149, are all to the same effect. In the last case the court said: "It has been held in New York, and perhaps elsewhere, that an indorsed promissory note, payable on demand, with interest, is a continuing security on which the indorser will remain liable until an actual demand, and upon which the holder is not chargeable with neglect for omitting to make demand within any particular time. Merritt v. Todd, 23 N. Y. 28. But much of the reasoning in that case seems to have been disapproved by subsequent cases in that court. The case of Merritt v. Todd has been expressly repudiated in Louisiana, where it is held that a demand note must be protested, and notice given within a reasonable time, to hold an indorser; and the fact that the indorsement is for accommodation, and that the note bears interest, makes no difference. This ruling seems to be in harmony with the current of authority in this country, as appears from the valuable notes of Mr. Freeman in 80 Am. Dec. 250-254." The delay in the above case was 10 months. The case was followed and approved in Leonard v. Olson, 99 Iowa, 162, 68 N. W. 677. In Palmer v. Palmer, 36 Mich. 489, the court said, in speaking of demand notes: "If the note had been negotiable, and indorsed over, any long delay to present it would unquestionably have released the indorser. * * It is now well settled that a note payable on demand is payable at once, and without demand, so that the statute runs from its delivery; and this rule has been applied where, from the form of the contract, it is manifest that immediate payment was not expected. Thus, in Norton v. Ellam, 2 Mees. & W. 461, the note called for interest which indicated at least an expectation of some delay." In that case the action was on a note payable 30 days after demand, and it was held that it was barred by the statute, as against the maker, after the lapse of 6 years after the 30 days named in the note. The courts are sometimes embarrassed with the question whether the time when demand is made, under the circumstances of the given case, is a reasonable time. In the present case, however, no such embarrassment arises. The parties all resided in the same city, so that the bank could have presented it at any time to the company, and notified the indorsers; and yet it carried it from January 15, 1891, to July 24, 1893, over 21⁄2 years from its date, before taking any legal steps to demand payment or notify the indorsers. The demand was not made within a reasonable time to hold the indorsers on this paper. We need not, therefore, discuss the question as to the sufficiency of the demand and notice. This item of the claim should not have been allowed by the court below. The judgment of that court must be modified in accordance with these views, and, as modified, will be affirmed. Defendants will recover costs of this court. The other justices concurred. LANDRY v. LANDRY. (Supreme Court of Michigan. Dec. 28, 1898.) ERROR-EVIDENCE-BIAS. Error in excluding a question, irrelevant except to show bias, was harmless, where the bias was otherwise shown. Appeal from circuit court, Saginaw county, in chancery; Byron A. Snow, Judge. Bill by Elizabeth Landry against James Landry. There was a decree for plaintiff, and defendant appeals. Affirmed. John F. O'Keefe, for appellant. E. L Beach, for appellee. MONTGOMERY, J. The defendant appeals from a decree of divorce, granted on a bill charging extreme cruelty and nonsupport. The solicitor for defendant contends that the proofs wholly failed to sustain either charge. We think the charge of nonsupport is not well sustained, but, as to the charge of cruelty, we have, with some hesitation, reached the conclusion that it is sufficiently sustained Mich.) DETROIT, G. R. & W. R. CO. v. COMMISSIONER OF RAILROADS. to justify the decree. In reaching this result, we take into account the fact that the testimony was taken in open court, and that the circuit judge had better opportunity to judge of the candor of the witnesses than we have. On the cross-examination of a witness for complainant, a question was asked, which had no relevancy, except to show bias of the witness. This was improperly ruled out. While the circuit judge was mistaken as to the practice, we do not think the case should be remanded for new trial because of this error, for the reason that the interest and bias of the witness were otherwise shown, and the defendant has evidently not suffered by the ruling. The decree will be affirmed. The other justices concurred. - JUSTICES OF THE PEACE - JURORS PEREMPTORY CHALLENGES-CERTIORARI-DECISIONS REVIEWABLE. 1. It is error to allow a peremptory challenge in a justice's court, as there is no statute authorizing such a challenge. 2. A question as to whether a justice of the peace erred in allowing a peremptory challenge of a juror may be reviewed by certiorari. 3. A plaintiff in a justice's court has no right to a trial by a jury composed of men selected by a method other than the one prescribed by law. Error to circuit court, Ionia county; Frank D. M. Davis, Judge. Action by Martha Eldridge against Nathan Hubbell in a justice's court. Judgment for plaintiff, and defendant brought certiorari to the circuit court, which reversed the judgment, and plaintiff brings error. Affirmed. Frederick & W. H. Mains, for appellant. F. H. Stowe (M. A. Nichols, of counsel), for appellee. MONTGOMERY, J. This case originated in justice's court. The defendant demanded a jury. The jury was selected in the usual manner, and the jurors selected by the parties summoned. Five of the jurors appeared, and plaintiff challenged one of the original panel peremptorily. The challenge was allowed by the justice, and defendant declined to take any further part in the proceeding. The plaintiff proceeded to judgment. Defendant removed the case to the circuit on certiorari, alleging, as ground of error, that the justice erred in excusing a juror of the regular panel on a peremptory challenge. The circuit court reversed the judgment of the justice, and plaintiff brings the case here for review. Two questions are presented: First, whether it was error to permit a peremptory challenge; and, second, whether certiorari is a proper remedy to review the ruling of the justice. 1. There is no statute authorizing a peremptory challenge of the members of the 631 original panel in justice's court. It is error to allow a peremptory challenge not authorized by statute. In re Convers, 18 Mich. 468. On a trial at circuit, where the record shows that the regular panel is not exhausted, this may be error without prejudice. See Luebe v. Thorpe, 94 Mich. 268, 54 N. W. 41; People v. Fowler, 104 Mich. 449, 62 N. W. 572. But in justice's court the trial should proceed before the jury struck by the parties, unless there be challenge for cause; and we cannot hold that this right is unimportant, in view of the fact that there is no reserve of jurors selected in like manner. 2. We regret to say that under the rule early established a question of this nature may be reviewed by certiorari. Dooley v. Eilbert, 47 Mich. 615, 11 N. W. 408; Boatz v. Berg, 51 Mich. 8, 16 N. W. 184; Gordon v. Sibley, 59 Mich. 250, 26 N. W. 485; Whittle v. Bailes, 65 Mich. 640, 32 N. W. 874; Harris, Certiorari, § 568 et seq. We say we regret the existence of this rule for the reason that we are convinced that the remedy by appeal is ample in all cases where jurisdiction of the cause is obtained by the justice. We have, in numerous cases, pointed out that appeal is the better remedy. But, in the absence of legislative restriction, we can go no further than to require that, if the aggrieved party resorts to certiorari, he make the error to appear affirmatively and clearly. This has been done in this case, unless we are to say that the right to a trial by a jury other than the one to which plaintiff was entitled. and composed of men selected by a different method, is the equivalent of a trial by a lawfully constituted jury. We do not feel justified in so holding. The judgment of the circuit court is affirmed. The other justices concurred. 1. Money received by a railroad company for services in switching is a part of its gross income, on which is estimated the amount of taxes, under Pub. Acts 1897, No. 228. 2. The rent of tracks and terminals is a part of the gross income of a railroad company, on which taxes are estimated, under Pub. Acts 1897, No. 228. 3. Interest received by a railroad company on its loans and deposits is gross income received in carrying on its business, on which taxes are estimated, under Pub. Acts 1897, No. 228. 4. In making the compilation of the mileage operated by a railroad company, under Pub. Acts 1897, No. 228, fixing a specific tax computed on all the gross income not exceeding a specified sum per mile of road actually operated within Michigan, tracks over which the company runs its trains, but in conjunction with other companies, should not be included. Original mandamus proceeding by the Detroit, Grand Rapids & Western Railroad Com pany against Sybrant Wesselius, the commissioner of railroads. Denied. Smith, Mims, Hoyt & Erwin, for relator. Fred. A. Maynard, Atty. Gen., for respondent. MONTGOMERY, J. This is an application for mandamus to compel the railroad commissioner to change the assessment made against the relator for the present year. The commissioner's report showed an operation of 451 miles of road, and that its gross income was $1,316,739.50. The respondent required a further report, which was furnished, showing gross receipts for switching of $5,052; rental of approaches, tracks, and terminals, $5,445.12. The report also showed that relator received during the year interest on deposits, $5,052. These three last-named items were not included in the original amount of the gross receipts, and were added to the amount first reported in making the assessments. It further appears that the relator included, in its report of mileage operated, 4.6 miles from Detroit to Delray; 8.4 miles from Detroit to Oak; 1 mile from Lansing to North Lansing; 7.3 miles from Paines, in the county of Saginaw, to the city of Saginaw; 15.5 miles from Grand Rapids to Sparta; and 34.2 miles from Sparta to Sheridan, a total of 71 miles over which relator ran its trains, but as to which road it did not have exclusive control. On the contrary, these lines of road were used by other railroad companies as a part of their several systems. Four questions are presented: First, whether the item for switching is a part of the gross income; second, whether the interest on deposits is to be so treated; third, whether rental for tracks is to be so treated; fourth, whether, in making the compilation, the mileage should be that exclusively operated by the relator, or should include other roads over which it ran any of its trains to the extent so used. 1. The act under which the assessment is made is Act No. 228, Pub. Acts 1897, which provides for a specific tax upon the property and business of railroad companies operating within the state, computed upon all such gross income, not exceeding $2,000 per mile of road actually operated within this state, 22 per cent. of such gross income; on such gross income in excess of $2,000, and not exceeding $4,000, per mile, 34 per cent., etc. Was the sum received for switching a part of the gross income? We think it was. It is claimed by relator that this item, being paid or credited to relator by other railroad companies, and charged to its customers, would be included in the amount reported by such other companies as their gross earnings. There was no direct proof of this before the railroad commissioner, although it was claimed in a letter filed by the president, but we do not well understand how this could be. Certainly, the relator received the amount of $5,000 and upward for services in switch ing. It was certainly a part of its gross income, and if the charges were collected by other railroad companies, and paid over to the relator, it is not quite clear why it should be treated as a part of the gross income of such other company, any more than the freight charges advanced. In relator's petition in this case it is represented that the sum set forth as received for switching was a sum received of its customers, and paid over to other companies, for switching done by such other companies, the relator simply acting as a collecting agent. If the relator had shown this by its report, we should not regard the sum so received as a part of the gross earnings, but we do not so read the report. If any mistake has been made in the report, doubtless the railroad commissioner will permit a correction. 2. We are unable to see why the sum reIceived for rental of tracks and terminals is not a part of the gross income received by relator. 3. The report shows there was received by the relator, interest on loans and deposits, $5,013.90. It is contended that this was not a part of the gross income received in carrying on the business, within the meaning of the statute. We think it is clearly within the language of the statute. 4. The most important question in the case is whether, in computing taxes, tracks over which relator runs its trains, but not exclusively controlled by relator, should be computed as a part of its mileage. The language of the statute is "road actually operated within this state." The contention of relator is that it is immaterial whether this company operates this road exclusively, or whether it is operated in conjunction with other companies. On the other hand, while it is conceded by respondent that the statute does not require that the road should be owned by the company, yet it is contended that it does require that if not owned, but merely operated, it shall be operated exclusively, and not merely in common with other companies. This would be the ordinary meaning of the language; and, looking somewhat to the consequences, it will be seen that, if the relator's contention be allowed, two connecting roads of equal mileage might, by running trains at intervals over the whole length of the two roads by mutual consent, each be said to be operating a road of the entire length, thereby materially reducing the rate of taxation. We think the contention of respondent's counsel should prevail. It follows that the writ will be denied. The other justices concurred. FITZSIMMONS v. BOARD OF CANVASS- A contempt proceeding against a party who disregarded an order of the circuit court after |