MONTGOMERY, J. This action originated in justice's court. It is sought to subject to process of garnishment money belonging to the principal defendant, John Chapman, which was at the time of the service of the process in the hands of the garnishee defendant, Garner. The facts, as found by the circuit judge, are that the defendant Chapman was arrested by the city marshal for a misdemeanor, and taken to the county jail for detention; that Garner was the jailer in charge; that Chapman was searched by the marshal in the presence of Garner, and $209.41 in money taken, and turned over to Garner for safe-keeping.

The court found that there was no bad faith on the part of Garner or the plaintiff, and found, as matter of law, that the money might be reached by this process. We are unable to agree with this conclusion. It is not pretended that the money taken from Chapman by the officers constituted any evidence against him which could have been used on the trial of the criminal proceedings instituted by his arrest. Indeed, it is quite apparent that it could not have been so used. We think the officer had no authority to take and retain possession of the money. While he had the right to search the prisoner, to see that he had upon his person no instruments which might aid to effect his escape, and also to retain in his custody any evidence which might be used on his trial, the right of seizure does not extend beyond this. 2 Am. & Eng. Enc: Law (2d Ed.), 860, and cases cited. This court has recently had occasion to pass upon the right of search and seizure, and we have held that such right ought not to be extended beyond the necessities of the case. Newberry v. Carpenter, 107 Mich. 567 (31 L. R. A. 163).

The seizure being wrongful, was the money in the hands. of the officer subject to garnishment? On the authority. of Bailey v. Wright, 39 Mich. 96, it is clear that the money could not, after such unauthorized seizure, have been attached by the officer; and we think, on principle, that it should be held exempt from garnishee process. To sustain such proceedings would open the door to such

invasions of the personal security of the individual as cannot receive the sanction of this court. It is true that there was no collusion shown in this case, but in all cases it might be difficult to show actual collusion; and we think the safe rule is that which excludes the possibility, and this rule is supported, as we conceive, by the best-reasoned cases. Robinson v. Howard, 7 Cush. 257; Dahms v. Sears, 13 Or. 47; Richardson v. Anderson, 4 Tex. App. Civ. Cas. 493; Connolly v. Thurber- Whyland Co., 92 Ga. 651; Commercial Exchange Bank v. McLeod, 65 Iowa, 665; Rood, Garnish. § 56; Hill v. Hatch, 99 Tenn. 39.

Plaintiff contends that the case is not presented in shape to admit of consideration of this question. It is true that the proper practice was not observed, as the assignments of error did not accompany the bill of exceptions. But the plaintiff stipulated to the settlement of the bill, and, as the defect is amendable, we do not deem it necessary to remand the record for this purpose. The appellant has also mistaken the practice in another respect. The assignments of error are special, and there were no exceptions to the findings in the court below. Under these circumstances, we cannot consider the case on special assignments of error directed to specific rulings on questions of law. Haines v. Saviers, 93 Mich. 440. We can, however, under an assignment of error alleging that the findings do not support the judgment, consider that question. Trudo v. Anderson, 10 Mich. 357 (81 Am. Dec. 795); Peck v. City Nat. Bank, 51 Mich. 354 (47 Am. Rep. 577). Such assignment may be based upon the record, without any bill of exceptions. Counsel for appellant ask leave to amend the assignments of error, and as we think no surprise will occur, or injustice be done to plaintiff, we will permit it. The appellee will be entitled to the usual motion fee, and the judgment will be reversed, and judgment entered in this court for defendant, with costs of both courts, less the motion fee taxed to appellee.

The other Justices concurred.

DUNN v. MICHIGAN CLUB.

1. CHATTEL MORTGAGES-BOOK ACCOUNTS.

The rule that book accounts are the subject of assignment and
mortgage applies as well to future as to existing accounts.

2. SAME FUTURE ACCOUNTS - FAILURE TO MAKE ENTRY UPON
Books.

A mortgage of all future book accounts covers an unpaid ac-
count subsequently accruing to the mortgagor, whether or
not it is entered upon his books.1

Error to Wayne; Hosmer, J. Submitted October 15, 1897. Decided December 21, 1897.

Garnishment proceedings by Edward J. Dunn against the Michigan Club, as garnishee of Thomas Swan and others. The Union Trust Company intervened as claimant of the fund. From a judgment in favor of claimant on verdict directed by the court, plaintiff brings error. Affirmed.

William B. Jackson, for appellant.

Russel & Campbell, for appellee Union Trust Co.

MONTGOMERY, J. The plaintiff is a judgment creditor of the defendant Swan. On the 21st of February, 1896, he caused a writ of garnishment to issue, directed to the Michigan Club. The defendant Swan was engaged in the business of restaurant keeper and caterer. On the 1st day of May, 1893, he executed a mortgage, now vested in the Union Trust Company, by which he mortgaged all his stock in trade, and also mortgaged and assigned all book accounts, notes, etc., "owned by him, or appearing on the

'The authorities respecting the mortgage or assignment of future accounts or earnings are collected in a note to Sandwich Manfg. Co. v. Robinson, (Iowa) 14 L. R. A. 126.

books of said business now being conducted by him at the place aforesaid, and all future book accounts representing proceeds of sales of goods in mortgagor's stock, and all additions to the same." Prior to the 21st of February, defendant Swan had made a contract with the Michigan Club to provide the annual dinner to be served on the 21st of February. On the day the dinner was served, and before the contract price of $600 was paid, or any bill rendered for the same, or any entry made of the same on the books of Mr. Swan, the writ in this case was served. The trust company has intervened, claiming the account as covered by the mortgage. The circuit judge sustained this claim, and the plaintiff brings error.

It is no longer an open question in this State that accounts are the subject of assignment, and may be mortgaged, and this applies as well to future accounts as to existing accounts. Fuller v. Rhodes, Rhodes, 78 Mich. 36; Preston Nat. Bank v. George T. Smith Middlings Purifier Co., 84 Mich. 364, 102 Mich. 462.

Plaintiff's counsel, however, contends that this account or claim against the Michigan Club was not a book account, within the meaning of the clause of the mortgage above quoted; but we think "book accounts, as used in this connection, must be construed to include all unpaid accounts which are the proper subject of a book entry, as this item certainly was until payment. The fact that the writ was served before the entry of the item on the books does not change its nature.

The judgment will be affirmed.

LONG, C. J., HOOKER and MOORE, JJ.. concurred. GRANT, J., did not sit.

SMITH v. KELLEY, MAUS & CO.

1. CONTRACTS-LETTERS-OFFER AND ACCEPTANCE-VARIANCE. Defendant, by letter of August 19th, offered plaintiff a position as traveling salesman, "at the rate of $150 per month to January 1st." The letter contained the assurance that plaintiff might continue in the employment as long as he could make his services valuable. Plaintiff, by letter of August 20th, accepted the proposition "to enter your employ for the next season." Held, that the acceptance was not at variance with the offer, and that the correspondence showed a contract of employment to January 1st.

2. SAME-NEW PAROL AGREEMENT

EVIDENCE.

The parties, having made such a contract, were at liberty, by mutual consent, to abandon the arrangement, and enter into a different agreement by parol; a fact which either could show to defeat an action on the contract evidenced by the letters.

Error to Kalamazoo; Buck, J. Submitted October 15, 1897. Decided December 21, 1897.

Assumpsit by William Smith against Kelley, Maus & Company, a corporation, for the breach of a contract of employment. From a judgment for plaintiff, defendant brings error. Reversed.

Howard, Roos & Howard, for appellant.

Osborn, Mills & Master, for appellee.

HOOKER, J. The plaintiff and defendant had negotiations regarding the employment of the former by the latter as a commercial traveler. The following letters show the correspondence upon which the plaintiff relies as a contract, and under which he claims that he went to work: