of the peace are frequently chosen who are not learned in the law, and the proceedings before the justice with a jury in such cases may not always result in justice between the landowner and the city; and the legislature very probably had in mind that on appeal, where the jury were under the control and direction of the circuit court, a more just result might be reached, or where the court on motion for confirmation might set aside the findings for misconduct of the jury, as was held in Depot Co. v. Backus, 92 Mich. 33, 52 N. W. 790.

We are compelled to hold that chapter 25 of the act which provides for taking private property for public use is unconstitutional, and that the court below was not in error in refusing to proceed thereunder. The writ must be denied. The other justices concurred.

ATLANTIC DYNAMITE CO. et al. v. ROPES GOLD & SILVER CO. ISHPEMING NAT. BANK v. JOHNSON et al.

(Supreme Court of Michigan. Jan. 20, 1899.)

MINING-LABORERS' LIENS-PRIORITIES. Under How. Ann. St. § 8408, providing that laborers in mines shall have liens for wages due, which shall take precedence of all other debts, liens, or mortgages, and that such liens may be enforced in the same manner, and under the same limitations and regulations, as are provided for the enforcement of other liens, a labor lien is superior to a mortgage lien although the latter is prior in time.

Appeal from circuit court, Marquette county, in chancery; John W. Stone, Judge.

Action by the Atlantic Dynamite Company and others against the Ropes Gold & Silver Company. From a decree giving preference to the labor liens of Henry Johnson and others over the lien of a mortgage held by the Ishpeming National Bank, the latter appeals. Affirmed.

cess of foreclosure, was filed and allowed. After the allowance of all claims, the defendants Henry Johnson and others filed a petitlon praying that their claims might be decreed a first lien upon the property, and have precedence of the mortgages of the bank. It appears that the mortgages were given for moneys advanced to the Ropes Gold & Silver Company to pay for labor and for merchandise delivered to the laborers of that company under an agreement with the company and the laborers; that all such advances except an open account of $686.27 were made long before the labor was performed for which the claim was allowed. Upon the hearing below the court decreed that the labor claims of Henry Johnson and others should have precedence over the mortgages. The Ishpeming National Bank appeals.

The only question presented is whether the labor claims have such precedence. Section 8408, How. Ann. St., provides: "Every person who shall furnish or perform any labor for any corporation organized for the purpose of mining, smelting or manufacturing iron, copper, silver or any other ores or minerals, in the Upper Peninsula of this state, and every bona fide holder of any draft or order for the payment of money due for any such labor, issued or drawn by an officer, clerk or agent of any such corporation, shall have a lien for the amount due thereon or therefor, upon all the real and personal property of such corporation, lying and being in said Upper Peninsula, which said lien shall take precedence of all other debts, judgments or decrees, liens or mortgages, against such corporation, except liens accruing to this state for taxes, fines or penalties; and every such lien may be proceeded on, enforced and collected out of such real and personal property, or either of the same, in the same manner and under the same regulations, limitations and conditions, as near as may be, as are herein provided for the enforcement and collection

LONG, J. The Atlantic Dynamite Company filed a creditors' bill against the Ropes Gold & Silver Company, a mining corporation, under the laws of this state, and engaged in the mining of gold and silver in the Upper Peninsula. The defendant, the Ropes Gold & Silver Company, answered, admitting the allegations of the bill, and a decree was entered sequestering the property of the corporation to pay its debts, and providing that all persons having claims against it be permitted to file the same with the register of the court, and become parties to the suit. Under the decree, the defendants Henry Johnson and others filed claims for labor, which were allowed as labor claims, amounting to $3,467.58. The claim of the Ishpeming National Bank, amounting to $8,069.20, secured by two mortgages upon the real and personal estate of the Ropes Gold & Silver Company in pro

the case may be: provided, that in the enforcement of any lien provided for in this section, it shall not be necessary to file, prove or produce any written contract relative to the labor on which such lien is based." Laws 1867, Act No. 201. Its language is plain and unambiguous. It provides that such liens (labor liens) shall have "precedence of all other debts, judgments or decrees, liens or mortgages, against such corporation, except liens accruing to this state for taxes, fines and penalties." There can be no question of the legislative intent that labor liens should have precedence. But counsel for the bank contends that the words, "every such lien may be proceeded on, enforced and collected

in the same manner and under the same regulations, limitations and conditions, as near as may be, as are herein provided for the enforcement and collection of other liens on real or personal property, as the case may be," mean that such limitations and condi

tions restrict the other terms employed, so that, unless the labor liens accrue before the mortgage becomes a lien, they are to be postponed to the mortgage; that in such case the mortgage has precedence of the labor lien by becoming a lien before the labor lien attaches. We think the statute not open to this construction. Counsel cites, as sustaining his contention, McLaren v. Byrnes, 80 Mich. 275, 45 N. W. 143, but in that case it expressly appeared that the labor liens had accrued before the levy of the attachment, and therefore the point under discussion here was not involved. It is true that it was said by Mr. Justice Champlin in that case that "the complainant's lien, having accrued before the lien of the attachment, is entitled to priority"; but that is not equivalent to saying that it

further said in that case, "We think this statute is remedial in its character, and entitled to a liberal construction." If we are to construe this statute as contended for by counsel for the bank, we must interpolate into it the words, "except when the mortgage lien first attaches." This evidently was not the intent of the legislature. The statute was upon the statute books at the time the mortgages were given, and entered into the contract between the mortgagors and mortgagees. The mortgagees must be presumed to have known that, when labor liens were filed, such liens would take precedence over the mortgages, and they are presumed to have contracted with this in view. This was mining property at the time the mortgage was taken. In Warren v. Sohn (Ind. Sup.) 13 N. E. 863, the court held a similar statute constitutional, and that such statutory provision in force at the time of the execution of the mortgage entered into and became a part of the contract, and that, where such statutes provide that liens of a certain class shall have priority over all other liens, the mortgagor takes his lien subject to such labor liens as may be afterwards acquired under the statute. In Provident Inst. for Savings v. Jersey City, 113 U. S. 506, 5 Sup. Ct. 612, it was held that a statutory llen for water rent was superior to mortgages executed prior to the attaching of the supply pipes to the mains. It was said in that case: "When the complainant took its mortgages, it knew what the law was. It knew that by the law, if the mortgaged lot should be supplied with Passaic water by the city authorities, the rent of the water, as regulated and exacted by them, would be the first lien on the lot. It chose to take its mortgages subject to this law." See, also, Reynolds v Black (Iowa) 58 N. W. 922; St. Paul Title Insurance & Trust Co. v. Diagonal Coal Co. (Iowa) 64 N. W. 606; Brooks v. Railway Co., 101 U. S. 443,-in which cases the same rule is laid down. This statute was enacted to secure to employés of corporations doing a mining business in the Upper Peninsula an efficient remedy for the collection of their wages; and the rights secured to such labor

ers should not be frittered away by the construction now contended for of this statute. The decree of the court below must be affirmed, with costs in favor of the petitioners for the labor claims. The other justices concurred.

STEYSKAL v. DETROIT JOURNAL CO.

et al. (Supreme Court of Michigan. Jan. 20, 1899.) LIBEL-EVIDENCE-SUFFICIENCY.

A publication charging a jailer with accepting a gold watch from a prisoner as security for five dollars, advanced to pay the prisoner's fine, and that the owner of the watch, which proved to be stolen, a few days later identified it, is not libelous.

Error to circuit court, Wayne county; Joseph W. Donovan, Judge.

Action by Mathias Steyskal against the Detroit Journal Company and others. Judgment for plaintiff for $200, and both parties bring error. Reversed.

This is an action of libel, based upon the following publication in the Detroit Journal: "Joke on Steyskal. Bought a Stolen Watch to Help a Prisoner. Winfred M. Raymond, 24 years of age, who gives his residence as 961 Sixteenth street, was locked up in the Central station this morning, charged with the larceny of a revolver, two watches, and $25.00 in cash, the property of Wm. S. Gill, of 920 Grand River avenue. A few days ago Raymond was arraigned at the early session of the police court, charged with being drunk and disorderly. He was fined $10.00 by Justice Whelan, who told the prisoner he would stand committed to the House of Correction for a period of six months if the fine was not paid. Raymond had $5.00 in cash, and, not liking to spend the holidays at the workhouse, disposed of a gold watch to Turnkey Steyskal at the county jail for the other $5.00, paid his fine, and was released. He then went to Belle River, Canada. Monday morning Mr. Gill reported his loss to the police, and he identified the watch given to Mr. Steyskal as part of the stolen property. An effort was then made to find Raymond, and he was finally located at Belle River. He refused to come back to the States, and extradition papers were secured. In the police court this morning he pleaded not guilty to the charge made against him, and will have his examination next Tuesday." The facts are that Raymond was found guilty of being drunk and disorderly, and fined $10. He had $5 in cash and a gold watch. Plaintiff was the jailer. One Peter Knauss was his deputy. Knauss took the responsibility of discharging Raymond on his promise to pay the other $5, leaving the watch with him as security. Knauss turned the watch over to plaintiff to be kept with other property taken from prisoners. Plaintiff testified that Knauss did not inform him that he held the watch

as security. He also testified that Knauss told him he would pay the fine, and that, when Knauss put the watch in the drawer, he said to plaintiff: "There will be a man here after it. When he comes, call me. The man will be back, and pay his fine, and claim his property." The watch was stolen, and Raymond was arrested for the larceny, and convicted. The court directed a verdict in favor of Palmer and Livingston, and submitted the question as against the defendant Journal to the jury, who found a verdict for plaintiff of $200.

James H. Pound, for plaintiff. Cutcheon & Stellwagen, for defendants.

GRANT, C. J. (after stating the facts). We need consider but one question. The article was not libelous. Plaintiff claims no injury in his business, and the court so instructed the jury. There is no evidence that his reputation was injured. He testified that the following evening, in a restaurant, some half dozen persons jokingly asked him what time it was, and that one of them said to him, "They have your picture in the paper," to which plaintiff testified: "I laughed at him, and he says: 'I feel sorry. That was a bad article.' ." The article charges no criminal or immoral conduct. Construed most strongly, it meant only this: that the prisoner was willing to part with the gold watch to obtain five dollars to pay his fine, and that plaintiff took it to enable him to do so. The court should have directed a verdict for the defendant. Judgment reversed, and no new trial ordered. The other justices concurred.

1. A contract to sell lambs, wherein the buyer agrees not to purchase any lambs in certain counties prior to the agreed date of delivery, is void, under 3 How. Ann. St. § 9354j, making void all contracts containing an agreement to restrict free competition in the production or sale of any commodity produced by agriculture.

2. 3 How. Ann. St. § 9354j, making void all contracts containing an agreement to restrict free competition in the production or sale of any commodity produced by agriculture, is constitutional.

Error to circuit court, Shiawassee county; Stearns F. Smith, Judge.

Action by Washington Bingham and another against William D. Brands and another. A demurrer to the declaration was sustained, and plaintiffs bring error. Affirmed.

Selden S. Miner, for appellants. Albert L. Chandler, for appellees.

LONG, J. This suit was commenced by filing the following declaration: "For that whereas, heretofore, to wit, on the 3d day of May, in the year of our Lord one thousand

eight hundred and ninety-seven, said plaintiffs and said defendants entered into the following contract, to wit: "This agreement, made in duplicate, this third day of May, in the year of our Lord one thousand eight hundred and ninety-seven, by and between William D. Brands and Robert Thompson, parties of the first part, and Clare S. Bingham and Washington Bingham, parties of the second part, as follows, witnesseth: That the said parties of the first part hereby agree to sell and deliver to second parties what stockmen call good feeding lambs, to be delivered to second parties as follows: 1,000 lambs to be delivered any time during the first week in September, 1897, and 1,000 lambs to be delivered at any time during the last week in October, 1897, at the stock yards at Kirby, in Shiawassee county, Michigan, and the price and quality is to be as follows: No lambs are to weigh less than fifty pounds, no buck lambs, and no culling of lots, except to take out the bucks or the lambs; all to be delivered, with the exception of buck lambs, as they are purchased from the farmers, and all to be Michigan wooled lambs; and price to be paid is four and one-fourth cents per pound for each lamb so sold of the 2,000 lambs. And second parties agree to buy of first parties 2,000 lambs at the time, place, price, and quality above stated, and to pay therefor the sum of four and one-fourth cents per pound when delivered, and second parties agree, in consideration of the above agreements of the first parties, not to buy, nor offer to buy, any Michigan feeding lambs, of the kind or quality herein mentioned, in Genesee or Shiawassee counties at any time before the first day of November, 1897; and second parties also agree that they will not buy, nor offer to buy, any lambs to be fattened by the seller nor themselves during the winter of 1897 and 1898, in lots of less than 200 lambs.' And whereas, said plaintiffs, relying upon said contract, did all things that were necessary for them to do, as in said contract mentioned. and on the first day of September were ready, willing, and desirous of taking said 1,000 lambs as required and specified in said contract, yet said defendants, desiring to injure said plaintiffs, neglected and refused to deliver to said plaintiffs said lambs as required in said contract, and still refuse and neglect to deliver said lambs as in said contract specified, except 647, which have been delivered by said defendants to said plaintiffs as specified in said contract, leaving a balance of 353 lambs, which were to be delivered by said defendants to said plaintiffs at the stock yards at Kirby, in Shiawassee county, as specified in said contract, which said defendants refused and neglected to deliver as specified in said contract, and still refuse and neglect to deliver said lambs to said plaintiffs, as required in said contract." The defendants interposed the following demurrer: "In this cause the defendants say that the declaration of the plaintiffs is not sufficient in

law; that the contract set forth in said declaration, upon which a recovery is sought, is made void by the statutes of this state, in that, among other things, it attempts to enhance, control, and regulate the market price of sheep, and to prevent and restrict free competition in the production and sale of sheep in Shiawassee and Genesee counties, contrary to public policy and the laws of this state. Said declaration avers no consideration for the contract or promise alleged therein to have been violated." The court below sustained the demurrer, and plaintiffs bring error.

It is evident that no principle of the common law is violated by this contract. It has been repeatedly held that contracts not to carry on specific trade or business in a town or county are valid. Thompson v. Andrus, 73 Mich. 551, 41 N. W. 683. We think, however, that the contract is in violation of section 9354j, 3 How. Ann. St., which provides: "All contracts, agreements, understandings, and combinations made, entered into, or knowingly assented to by and between parties capable of making a contract or agreement, which would be valid at law or in equity, the purpose or object or intent of which shall be to limit, control, or in any manner restrict or regulate the amount of production or the quantity of any article or commodity to be raised or produced by mining, manufacture agriculture, or any other branch of business or labor, or to enhance, control, or regulate the market price thereof, or in any manner to prevent or restrict free competition in the production or sale of any such article or commodity, shall be utterly illegal and void." By the terms of this contract, the defendants were restrained from purchasing lambs in Genesee and Shiawassee counties. The contract had the effect to restrict free competition in those counties, and falls within the very terms of the statute. It is evident that the legislature, in the passage of this act, had the object in view to prevent the making of contracts which before had been recognized by the courts as valid at the common law. Many contracts, even in restraint of trade, when limited to certain territory, had been upheld. The test as to what constituted reasonableness in such contracts was stated by Tindal, C. J., in Horner v. Graves, 7 Bing. 735, as follows: "I do not see how a better test can be applied to the question whether the agreement is reasonable or not than by considering whether the restraint is such only as affords a fair protection to the interest of the party in favor of whom it is given, and not so large as to interfere with the interest of the public. Whatever restraint is larger than the necessary protection of the party can be of no benefit to either of the parties. It can only be oppressive, and, if oppressive, it is, in the eye of the law, unreasonable. Whatever is injurious to the interest of the public is void on the ground of public policy." Examples of contracts which have stood this

test may be found in Mitchel v. Reynolds, 1 P. Wms. 181; Gale v. Reed, 8 East, 80; Sternberg v. O'Brien, 48 N. J. Eq. 370, 22 Atl. 348; Martin v. Murphy, 129 Ind. 464, 28 N. E. 1118. The rule at the present time in England and in some of the states of the Union seems to be that such contracts are valid, provided they fulfill the test laid down by Tindal, C. J., in Horner v. Graves.

It was to meet decisions of this character that the act in question was passed, the legislature evidently regarding all combinations of this character as inimical to the public welfare, and contrary to public policy. Contracts or agreements made with intent to limit, control, or in any manner to restrict or regulate the amount of production or the quantity of any article or commodity to be raised or produced by mining, manufacture, agriculture, or any other branch of business or labor, or to enhance, control, or regulate the market price thereof, or to prevent or restrict free competition in the production or sale of any such article or commodity, are made invalid by the act, except such contracts as are recognized at common law and in equity for the good will of a trade or business. These last-named contracts are, by a later clause in the section, left to stand upon the same terms and within the same limitations as recognized by common law and in equity. Mr. Justice Howe, in Kellogg v. Larkin, 3 Pin. 136, speaking upon the question of public policy, says: "As a general rule. the immediate representatives of the people in legislature assembled would seem to be the fairest exponents of what public policy requires, as being most familiar with the habits and fashions of the day, and with the actual condition of commerce and trade, their consequent wants and weaknesses; and a Legislative enactment would seem to be the least objectionable form of exposition." We find nothing in this statute beyond the power of the legislature to enact, and its effect should not be frittered away by construction. The court below very properly sustained the demurrer. The judgment must be affirmed. The other justices concurred.

In re BATCHELOR'S ESTATE. (Supreme Court of Michigan. Jan. 20, 1899.) WILLS-ANNUITY-CONSTRUCTION.

Where a will bequeathed an annuity, to be paid in stated installments until the estate was closed, and provided that, if the estate was insufficient to pay testator's debts and all legacies in full, then certain legacies, of which the annuity was one, should be paid first, and certain others thereafter pro rata, the annual allowance must be paid until the estate has been completely settled. and not merely until the executors, by reason of having paid testator's debts and the expenses of his last illness, are in a position to pay legacies.

Error to circuit court, Saginaw county; Eugene Wilber, Judge.

Judicial accounting of Edward W. Harris,

executor of the estate of Jacob F. Batchelor, deceased. From a decree allowing the account, Henry A. Batchelor, a legatee, brings error. Affirmed.

Humphrey & Grant, for appellant. Benton Hanchett, for estate.

MONTGOMERY, J. This is an appeal from the final account of the allowance of the executor of the last will and testament of the deceased. The question arises under the seventh clause of the will, which reads as follows: "I give and bequeath to Martha L. Cable, for her support during the settlement of my estate, the sum of one thousand dollars yearly, the same to be paid to her quarterly, until my estate is closed." By other clauses of the will specific bequests had been inade to Miss Cable, consisting of the homestead of the testator, household furniture, etc., a life insurance policy of $3,000, and $10,000 in money, which it was provided should be paid to her as soon as practicable after the decease of the testator. In addition, Miss Cable was made one of the residuary legatees, the appellant being the other. It appears by the finding that on said 3d day of February, 1893, all of the debts, expenses of last sickness, and funeral expenses had been paid, as provided in the first clause of said will; that the devise and bequest of Henry A. Batchelor, provided for in the second clause of the will, had then been paid and transferred; that Martha L. Cable had then received the devises and bequests described in the third, fourth, and sixth clauses of said will, and that she had then received $5,500 of the bequest named in the fifth clause of the will, and that all payments due to her under the seventh clause of the will, up to that date, had been paid to her, and that the bequests named in the eighth clause of the said will had then been paid. It will be seen that the allowance of the account, as stated, works out a great injustice. The efrect is to impose a penalty of $1,000 a year upon the appellant for prosecuting the case against Miss Cable. If, however, the terms of the will are unambiguous, as claimed, we cannot ignore them. It is contended by the appellant that the language of the seventh clause, when construed in connection with another clause of the will, to which reference will be made, should be construed to mean that there should be paid over to Miss Cable the sum of $1,000 per year, until the funeral expenses were paid and the executor was in position to pay over the legacies; and that it should not be so construed as to allow the executor, by mere delay, to enlarge the bequests or continue the allowance, or so as to make it possible to embarrass the executor in the prosecution of claims either against Miss Cable or third parties, to the extent of rendering such efforts more than barren to the estate, even in case of success; and that such a construction is reasonable, in view of the twelfth clause of the will, which reads as

follows: "And, in case my estate is not sufficient to pay the costs, expenses, debts, and legacies aforesaid in full, then, in that case, those mentioned in the first ten sections of this, my last will, shall be paid in full, and the remainder shall be divided among the three (3) societies mentioned in the above eleventh (11th) clause of this, my last will, in proportion to the bequests therein mentioned." The first section of the will includes the bequests for support above quoted. It is therefore urged that the $1,000 per year bequeathed for support must be paid, and the amount thereof determined, before the amount of the bequests to the three societies could be ascertained, and that the annuity could not, therefore, be continued until the estate was closed. We think, however, that the twelfth clause is not inconsistent with the seventh. It would be entirely proper for the probate court to fix a time for distributing and closing the estate, and, upon the basis of that date, the amount of the various legacies could have been determined. In fact, the entire of the specific legacies to Miss Cable were not paid, and the estate was not settled or closed. The seventh clause is unambiguous, and we are constrained to hold that Miss Cable was entitled to the allowance until the final settlement of the estate actually took place or was determined upon. There is no finding of any collusion between the executor and Miss Cable. Appellant relies upon the case of Calkins v. Smith's Estate, 41 Mich. 410, 1 N. W. 1048, but the language of the will under consideration in that case was materially different than the one here considered. In that case the court construed the expression, "before my estate is settled," to mean the time before the funeral expenses, debts, and legacies were paid. If the similar expression in this will were so construed, it would not aid appellant, as the legacies were not all paid. Judgment affirmed. The other justices concurred.

BOWEN et al. v. BROGAN et ux. (Supreme Court of Michigan. Jan. 20, 1899.) LIFE ESTATES-MORTGAGE-DUTY OF LIFE TENANT -ADVERSE POSSESSION-EJECTMENT.

1. A life tenant of mortgaged property cannot, by neglecting to pay the mortgage, and allowing it to be foreclosed, and then purchasing the property at the foreclosure sale, cut off the title of the remainder-men.

2. Ejectment may be maintained against a purchaser in possession under a void or irregular foreclosure of a mortgage.

3. There can be no adverse possession against a remainder-man, by one claiming through a life tenant, during the life of the life tenant.

Error to circuit court, Calhoun county; Clement Smith, Judge.

Ejectment by Edwin Bowen and others against Patrick Brogan and wife. Judgment for defendants, and plaintiff's bring error. Reversed.