sale. As was said in Muirhead v. Sands, 111 Mich. 487, 495:

"The statute (section 70) in terms 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, and that in such cases the owner of such lands may move the court, at any time within one year after he shall have notice of such sale, to set the same aside."

But this was not the only remedy which the statute gave to the defendants. Under section 98, Act No. 206, Pub. Acts 1893, the auditor general, upon finding that the tax has been paid to the proper officer within the time limited by law for the payment or redemption thereof, is empowered, even after a deed has been executed and delivered, to give to the owner a certificate of error in proper form for record; and the deed, if not recorded, shall be surrendered when the purchase money is refunded, etc. It is evident that it was the intent that this certificate of error should perform some office. It was offered in evidence in the present case, and received by the court. It showed clearly that there was an error in the returning and sale of these lands and in the giving of the deed Under such circumstances, the plaintiff had no right to recover, and the court very properly directed the verdict in favor of the defendants. That judgment must be affirmed, with costs.

The other Justices concurred.

KLUCK v. MURPHY

JUSTICES OF THE PEACE-PRACTICE.

It is not within the power of a justice of the peace to amend his docket after it is once made up and officially signed by him.

Error to Gogebic; Haire, J. Submitted October 5, 1897. Decided December 7, 1897.

Debt by John J. Kluck against Jerry Murphy. From a judgment reversing, on certiorari, the judgment of a justice of the peace, plaintiff brings error. Affirmed.

Julius J. Patek (C. F. Button, of counsel), for appellant.

Buck&Waples, for appellee.

MONTGOMERY, J. This is error to review the decision of the circuit court reversing a judgment of a justice of the peace. The error alleged is that the docket entry of the justice failed to show a declaration by the plaintiff. The defendant did not appear before the justice. The statute (2 How. Stat. § 7053) provides that every justice of the peace shall keep a docket, in which he shall enter a concise statement of the declaration of the plaintiff and the plea of the defendant when the pleadings are oral. The plaintiff contends that the justice's return shows that pleadings were filed. The justice's return contains the statement, "Plaintiff declares on, and offers in evidence, judgment rendered before me," etc. judgment bears the date December 8, 1896. In answer to an order requiring a further return, the justice returned that, when the docket was signed by him, the words (the plaintiff) "declares on and" were not included in the judgment entry. It appears that some time thereafterand whether before or after the notice of certiorari does

The

not appear, as the justice returns that he has no recollection of the wording of his docket entry at the time of the service upon him of certiorari-he inserted these words. It thus appears that the original docket entry, as entered and signed by the justice, omitted any statement whatever as to the pleadings. It is not within the power of the justice to amend his docket after it is once made up and officially signed by him. Foster v. Alden, 21 Mich. 507. Judgment will be affirmed, with costs.

The other Justices concurred.

CALDWELL v. JONES.

HUSBAND AND WIFE-JOINT NOTE-LIABILITY OF WIFE.

A married woman is not liable on a note given by her jointly with her husband for the price of personal property purchased by them jointly.

Error to Grand Traverse; Corbett, J. Submitted October 6, 1897. Decided December 7, 1897.

Assumpsit by Robert Caldwell and William Loudon against Elnora Jones and E. S. Jones upon a promissory note. From a judgment for defendant Elnora Jones on verdict directed by the court, plaintiffs bring error. Affirmed.

Patchin & Crotser, for appellants.

Underwood & Umlor, for appellees.

MONTGOMERY, J. This is an action on a promissory note of $100, payable to E. F. Ferris or order, and signed by the two defendants, who are husband and wife. The

115 Mich.-9.

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evidence offered on the trial by the plaintiffs tends to show that the note was given for a horse sold by Ferris to the defendants jointly, and the question is whether a married woman can make herself liable upon a note given jointly with her husband for the purchase of personal property by the two. The circuit judge directed a verdict in favor of Mrs. Jones.

It is clear that the effect of this undertaking of Mrs. Jones was to make herself liable as a surety for her husband, to the extent at least of one-half the note, if her undertaking is binding. It has been frequently held that the wife cannot become surety for the husband. It has also been held, and is the established doctrine in this State, that the wife is not liable generally for her engagements, nor can she make herself liable, except by contract relating to her separate estate, or by contract by which she acquires separate property. It is not enough, to charge a married woman upon her executory contract, that there is a consideration which would support a promise at the common law, or that the contract indirectly inures to her benefit. Russel v. Savings Bank, 39 Mich. 671 (33 Am. Rep. 444). In Speier v. Opfer, 73 Mich. 35 (16 Am. St. Rep. 556), it was held that a wife could not be held liable upon a joint contract with her husband for improvements made upon property owned by them jointly. The court said, "She [the wife] has no power to contract, except in regard to her separate property." So it was held in Artman v. Ferguson, 73 Mich. 146 (16 Am. St. Rep. 572), that the wife could not be held liable for goods furnished to the husband and wife as partners. The court, speaking by Mr. Justice LONG, said:

"The important and sacred relations between man and wife, which lie at the very foundation of civilized society, are not to be disturbed and destroyed by contentions. which may arise from such a community of property, and a joint power of disposal, and a mutual liability for the contracts and obligations of each other."

See, also, Bassett v. Shepardson, 52 Mich. 3; Curtis v. Crowe, 74 Mich. 99.

The instruction given was proper. Judgment will be affirmed, with costs.

The other Justices concurred.

HAINES v. GIBSON.

1. PRINCIPAL AND SURETY-LOGGING CONTRACT.

One who becomes surety for the performance by a logging contractor of an agreement to cut and haul the marketable timber from specified lands, the owner, under the terms of the contract, having "the right to dictate from time to time what timber is marketable," cannot claim his release on the ground that the owner prevented the contractor from cutting and hauling all the marketable timber.

2. SAME CONSTRUCTION MATERIAL ALTERATION - RELEASE OF SURETY.

*

The contract provided that "all logs shall be put into Pine lake * * on or before the 1st day of April, 1896, and shall be driven to the owner's boom in Lake Superior at the mouth of Pine river." With the owner's consent, the logs were hauled to Ives lake, situated about a quarter of a mile above Pine lake, and connected with it by a stream. Held, that, the contract specifying no route for conveying the logs to Pine lake, and there being no evidence that the route through Ives lake and the connecting stream was not feasible, the arrangement for hauling the logs to Ives lake was not a material alteration of the contract.

3. SAME CONTRACTOR'S AGREEMENT WITH SURETY - WHEN BINDING ON OBLIGEE.

The fact that the contractor failed to keep an agreement made with the sureties on his bond in the absence of the obligee, and without the latter's consent or knowledge, that he would adopt a specified route for hauling the logs, would have no bearing upon the right of the obligee to enforce the bond as against the sureties upon the contractor's default.

4. JUDICIAL NOTICE-CONDITION OF WEATHER.

The court cannot take judicial notice that the weather on the 1st of April in portions of the Northern Peninsula is always such that the lakes and streams are not open for the floating of logs.