264, and Turner v. Smith, 90 Mich. 309. In the present case the sentence was imposed under section 7276, 2 How. Stat., which provides:

"If the court shall adjudge the defendant to have been guilty of the misconduct alleged, and that the misconduct was calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of any party in a cause or matter depending in such court, it shall proceed to impose a fine or to imprison him, or both, as the nature of the case shall require.

Section 7277 provides that the court may, in cases where actual loss or injury has been produced to any party by the misconduct alleged, order the defendant to indemnify him, and satisfy his costs and expenses, instead of imposing a fine. Section 7278 provides:

"In all cases other than that specified in the last preceding section, the fine shall not exceed two hundred and fifty dollars, over and above the costs and expenses of the proceedings.

Sections 7279 and 7280 have no reference to the present case; but it is provided by section 7281:

"In all other cases, where no special provision is otherwise made by law, if imprisonment be ordered it shall be for some reasonable time, not exceeding six months, and until the expenses of the proceedings are paid, and also, if a fine be imposed, until such fine be paid; and in the order and process of commitment the duration of such imprisonment shall be expressed."

It appears in this case that the sentence of imprisonment was not imposed as a means of insuring the payment of the fine under the latter part of the clause of section 7281, as it does not provide that the sentence of imprisonment shall terminate upon the payment of the fine; but the defendant was given 15 days to pay the fine, and, if not paid within that time, he should be imprisoned for the period of 30 days. The sentence was void as an alternative one, within the principles stated in the cases above cited and the cases therein referred to.

The case will be remanded, and the court directed to proceed to sentence, as the defendant has not yet served any portion of the sentence of imprisonment imposed or paid the fine.

The other Justices concurred.

MCEACHRAN v. GRAND TRUNK RAILWAY CO.

1. CARRIERS OF FREIGHT PREPAYMENT OF CHARGES-WAIVERBURDEN OF PROOF.

One who relies upon the authority of an employé of a common carrier to waive the right to prepayment of freight charges before delivery of the cars has the burden of showing authority

2. SAME-WHAT CONSTITUTES WAIVER.

A railroad employé does not waive the right of the company to a prepayment of freight charges before delivery of the cars, and to car rental for delay of the consignee, by responding "all right" to a statement by the consignee that he will give a disposal order for the cars, and will send the amount of the freight whenever he gets the expense notices and knows the amount.

Error to Wayne; Lillibridge, J. Submitted November 6, 1897. Decided December 15, 1897.

Trover by William A. McEachran and another against the Grand Trunk Railway Company of Canada. From a judgment for defendant on verdict directed by the court, plaintiffs bring error. Affirmed.

Plaintiffs had purchased in Canada seven car loads of wood, which were shipped to them at Detroit, over the defendant's road. January 28th Mr. McEachran learned that the cars had arrived, and were standing in defendant's yard. He went immediately to one of the offices of

the defendant, but not to the regular freight office where he always paid his freight. He testified that he there "had a conversation or inquiry about the wood with one of the men, whose name he did not know; that he knew him by sight, and had had a very little business at that office before." He left with him a disposal order,—that is, a direction where to deliver the wood, and said he would send the amount of freight charges when he got the expense notices. He ordered four of the cars to be delivered on defendant's own track, known as the "Public Team Track," and three to be sent to the private track of one Koenig. The four were delivered, and no reference is necessary to them. Plaintiffs sent a check for the freight by mail. The check was dated January 29th, but on the envelope in which it was inclosed was the post-office stamp showing that it was received and mailed on January 31st, at noon. It reached defendant on the afternoon of that day. Under the car-service rules of the company, a charge of one dollar per car was made when cars were delayed beyond 48 hours in loading or unloading. Plaintiffs did not pay the freight within 48 hours, and a charge of one dollar per car was made. This plaintiffs refused to pay, and sued defendant in trover for a conversion of the wood. The court directed a verdict for the defendant."

Lehman Bros. and F. J. Riggs, for appellants.

Edwin F. Conely and Orla B. Taylor, for appellee.

GRANT, J. (after stating the facts). At the conclusion of the evidence, plaintiffs' counsel conceded the reasonableness of the car-service rule, but claimed that payment of freight before delivery of the cars had been waived. The question of waiver is therefore the only one before us. Plaintiffs claim that this should have been submitted to the jury. The court held that there was no evidence to show authority in the employé, with whom Mr. McEachran talked, to waive payment.

The right of a common carrier to the prepayment of freight charges before delivery is important. When a party relies upon the authority of an employé of the carrier to waive that right, it is incumbent upon him to show authority. Plaintiffs relied upon an employé whom they did not know, and who was not employed in the office where such business was customarily transacted. If they had met some employé in the yard, they might as well have claimed that he had authority to extend credit by waiving payment. We are not dealing with a case where a party applies to the regular office, and there receives information from one who is apparently in a position to represent the company.

But, under the plaintiffs' own showing, there was no waiver. The conversation relied on to constitute a waiver is thus stated by Mr. McEachran:

"I went there, and said that I had some wood there; and I said that I would give him a disposal order, and I wrote out the disposal order for the seven cars; and I said, 'I will send the amount of freight whenever I get the expense notices, and know the amount of freight.' The disposal order was written in pencil. I kept no copy. I wrote out the order. I handed it to him, and he said, 'All right.""

There is not in this language any promise, express or implied, to waive the rules of the company. Plaintiffs knew that prepayment was required, and that car rental would be charged after 48 hours. They had ample notice and ample opportunity to pay it within that time. Not a word was said about deferring payment. They had the 29th and 30th in which to pay and receive their property. Mr. Parker, the assistant cashier in the freight office, called plaintiffs by telephone on the 29th and 30th, and informed them that the check had not come, and that car rental would be charged on the 31st. There was no agreement that defendant should assume the risk of the mail, or that payment should be made by depositing the check in the mail-box. The reply of the employé, "All

right," meant only this: "I will take your disposal order, and, when the freight charges are paid, will comply with it."

Judgment affirmed.

The other Justices concurred.

SYKES v. CITY SAVINGS BANK.

1. LOANS-HUSBAND AND WIFE.

The rule that, if one gives another money at his request, the law will imply a promise to repay, applies, where there are no circumstances tending to show a different understanding, to a husband who receives money from his wife.

A wife's testimony that moneys advanced by herself to her husband were so advanced upon the "understanding" that she was to be repaid therefor may be treated, in the absence of objection or cross-examination, as though she had testified to an "agreement" to the same effect.

3. GIFT ADVANCES OF MONEY - ANTICIPATED REPAYMENT TOPPEL.

Es

Money advanced by a wife to her husband with the expectation that he should repay it, but without express agreement as to the time of repayment, will not be treated as a gift, unless under circumstances amounting to an estoppel.

4. GARNISHMENT-OWNERSHIP OF FUND-INSTRUCTIONS.

In garnishment against a bank to reach moneys deposited in the name of the debtor's wife, the fact that, the bank having paid the fund to the wife after service of the writ, the loss, in case plaintiff should prevail, would fall upon the bank, and not the wife, is not one that the parties are entitled to have brought to the attention of the jury in the instructions.

115 Mich.-21.