as a feme sole, and also in any action commenced against her before her marriage.2 The judgment commenced in an action. after marriage upon a contract made by her before marriage should be against both husband and wife, unless otherwise provided by statute.3 (3) Lunatics.--A judgment is neither erroneous nor void because rendered against a lunatic.+ (c) PERSONS ACTING IN REPRESENTATIVE CAPACITY—(1) General Rule.--Judgment against a party in one right or capacity is not binding upon him in another right or capacity.5 v. Long, 65 Pa. St. 383. See also Baines v. Burleridge, 15 La. An. 628. See infra, this title, JUDGMENT BY CONFESSION. Ordinarily a married woman can obtain relief in equity against a judgment only by establishing facts that would entitle her to relief independent of the fact of coverture. Green v. Branton, 1 Dev. Eq. (N. Car.) 500; Van Metre v. Wolf, 27 Iowa 342. Compare Bowman v. Kaufman, 30 La. An., pt. 2, 1021; Griffith v. Clarke, 18 Md. 457. 1. Alexander v. Bonton, 55 Cal. 15; Marlow v. Barlew, 53 Cal. 456; Glover v. Moore, 60 Ga. 189; Huff v. Wright, 39 Ga. 41; Jones v. Glass, 48 Iowa 345; Van Metre v. Wolf, 27 Iowa 341; Musgrave v. Musgrave, 54 Ill. 186; Hart v. Grigsby, 14 Bush (Ky.) 542; Goodnow v. Hill, 125 Mass. 587; Labaree v. Colby, 99 Mass. 559; Davis v. National Bank, 5 Neb. 242; Cashman v. Henry, 75 N. Y. 103; Corn Exchange Ins. Co. v. Babcock, 42 N. Y. 613; s. c., I Am. Rep. 601; Charles v. Lowenstein, 26 How. Pr. (N. Y.) 29; Vosburgh v. Brown, 66 Barb. (N. Y.) 421; Foster v. Conger, 61 Barb. (N. Y.) 145; s. C., 42 How. Pr. (N. Y.) 176; Wilson v. Her bert, 41 N. J. L. 456; Wadsworth v. Henderson, 16 Fed. Rep. 447. Where a married woman is personally liable for an anti-nuptial debt, personal judgment may be rendered against her. Travis v. Willis, 55 Miss. 557; Smith v. Beard, 73 Ind. 159. 2. Phillips v. Stewart, 27 Ga. 402; Evans v. Lipscomb, 28 Ga. 71; Sackett v. Wilson, 2 Blackf. (Ind.) 85; Com. v. Phillipsburg, 10 Mass. 78; Roosevelt v. Dale, 2 Cow. (N. Y.) 581; Parker v. Steed, Lea (Tenn.) 206; Cooper v. Hunchin, 4 East 521. And see preceding note. 3. Gray v. Thacker, 4 Ala. 136; McDermott v. French, 15 N. J. Eq. 78; Mallory v. Vanderheyden, 3 Barb. Ch. (N. Y.) 9; s. c., 1 N. Y. 453; Cole v. Seeley, 25 Vt. 220; Platner v. Patchin, 19 Wis. 333. 4. Sacramento V. Savings Bank Spencer, 53 Cal. 737; Foster v. Jones, 23 Ga. 168; Stigers v. Brent, 50 Md. 214; Lamprey v. Nudd, 29 N. H. 299; Johnson v. Pomeroy, 31 Ohio St. 247; Wood v. Bayard, 63 Pa. St. 320; Clarke v. Dunham, 4 Den. (N. Y.) 262. also Fleming v. Seeligson, 57 Tex. 524. The judgment should be against the lunatic, not his guardian. Walker v. Clay, 21 Ala. 797. See The remedy against a judgment improperly rendered against a lunatic is by proceedings in equity. Sternberg v. Schoolcraft, 2 Barb. (N. Y.) 153; Clarke v. Dunham, 4 Den. (N. Y.) 262; Robertson v. Lain, 19 Wend. (N. Y.) 650. See generally INSANITY, vol. 11, p. 127. 5. Stockton etc. Assoc. v. Chalmers, 75 Cal. 332; s. c., 7 Am. St. Rep. 173; Stoops v. Woods, 45 Cal. 439; Brooking v. Dearmond, 27 Ga. 58; Benz v. Hines, 3 Kan. 386; Marshall v. Rough, 2 Bibb (Ky.) 628; Crenshaw v. Creek, 52 Mo. 101; Lord v. Wilcox, 99 Ind. 491; Elston v. Piggott, 94 Ind. 14; Bartlett v. Kochel, 88 Ind. 425; Unfried v. Heberer, 63 Ind. 67; Moorney v. Maas, 22 Iowa 380; Coonan v. Frizell, 42 Ill. 319; Mansfield v. Hoagland, 46 Ill. 359; Slocomb v. De Lizard, 12 La. An. 355; s. c., 99 Am. Dec. 740; Lander. v. Arno, 65 Me. 26; Parker v. Moore, 59 N. H. 454; Dawson v. Coles, 16 Johns. (N. Y.) 51; Lewis v. Smith, II Barb. (N. Y.) 152; Rathbone v. Hooney, 58 N. Y. 463; Frost v. Koon, 30 N. Y. 428; Landon v. Townshend, 112 N. Y. 93; Eshelman v. Shuman, 13 Pa. St. 561; Jones v. Blake, 2 Hill Ch. (S. Car.) 629; Blakey v. Newby, 6 Munf. (Va.) 64; Leggett v. Great Northern R. Co., 1 Q. B. D. 599. But a judgment against a person who represents himself as well as others may bind him as an individual. Cor (2) Executors and Administrators.-A judgment against a deceased person is binding upon his executor or administrator 2 to the extent to which he succeeds to the property rights of the deceased person. A judgment for or against an executor is conclusive evidence for or against another executor under the same will who has qualified in the same State.3 Creditors and legatees of an estate are bound by a judgment against the administrator. A judgment against an executor or administrator is not binding upon an administrator de bonis non, or an executor or administrator who has qualified in another State,6 or upon heirs or devisees.7 coran v. Chesapeake Canal Co., 94 U. S. 741. See also Denegre v. Denegre, 33 La. An. 689. Appearing in an action as the heir of one will not estop the party to claim the same property as the devisee of another, or as a lien holder. Lord v. Wilcox, 99 Ind. 491; Elliott v. Frakes, 71 Ind. 412. See also Lantz v. Maffett, 102 Ind. 23. But judgment by default of plea against an administrator is a conclusive admission that he has assets and there fore binds him personally. Grace v. Martin, 47 Ala. 135; Rock v. Leighton, 1 Salk. 310; 1 Ld. Raym. 589; Leonard v. Simpson, 2 Bing. N. C. 176; 2 Scott 355 1. Executors and Administrators.— Ladd v. Durkin, 54 Cal. 395; Manigault v. Deas, 1 Bail. Eq. (S. Car.) 283. 2. Wolfinger v. Betz, 66 Iowa 594; Steele v. Lineberger, 59 Pa. St. 308. But administrator and intestate are not in privity in regard to land. Hall v. Armor, 68 Ga. 449. But see Wolfinger v. Betz, 66 Iowa 594. 3. Hill v. Tucker, 13 How. (U. S.) 466. 4. Pickens v. Yarborough, 30 Ala. 408; Castellaw v. Guilmartin, 54 Ga. 299; Stone v. Wood, 16 Ill. 177. Compare Weeks v. Ostrander, 52 N. Y. Super. Ct. 512; s. c., 16 Abb. N. C. (N. Y.) 143; Mauldin v. Gossett, 15 S. Car. 565. It has been held that a judgment in an action between the administrator and heirs is not binding on the legatees. Valsain v. Cloutier, 3 La. 170; s. c., 22 Am. Dec. 179. A judgment against an administrator in favor of a distributee of the estate does not estop other distributees from showing that the first distributee obtained judgment for more than his share. Wright & Phillips, 56 Ala. 69. 5. Hudgens . Cameron, 50 Ala. 379; Thomas v. Sterns, 33 Ala. 137; Graves v. Flowers, 51 Ala. 402; s. c., 23 Am. Rep. 555; Grout v. Chamberlin, 4 Mass. 611; Allen v. Irwin, 1 S. & R. (Pa.) 549; Wenrick v. McMurdo, 5 Rand. (Va.) 51. Compare Latine v. Clements, 3 Kelly (Ga.) 426; Manigault v. Deas, 1 Bai. Eq. (S. Car.) 283; Boykin v. Cook, 61 Ala. 472; Dykes v. Wookhouse, 3 Rand. (Va.) 287; Stacy v. Thrasher, 6 How. (U. S.) 44; Hill v. Tucker, 13 How. (U. S.) 466. A recovery by one suing as administrator without authority is no bar to an action by the rightful administrator. Pond v. Makepeace, 2 Met. (Mass.) 114. 6. Hatchett v. Berney, 65 Ala. 39; Rosenthal v. Renick, 44 Ill. 207; Jackson v. Tiernan, 15 La. 485; Pond v. Makepeace, 2 Met. (Mass.) 114; Talmage v. Chapel, 16 Mass. 71; Low v. Bartlett, 8 Allen (Mass.) 259; Taylor v. Barron, 35 N. H. 484; Latine v. Clements, 3 Kelly (Ga.) 426; Brodie v. Bickley, 2 Rawle (Pa.) 431; Hill v. Tucker, 13 How. (U. S.) 466; McLean v. Meek, 18 How. (U. S.) 16; Stacy v. Thrasher, 6 How. (U. S.) 44. Trustees appointed by a court to receive legacies for minors and an administrator of the same estate qualified in another State are not in privity. Low v. Bartlett, 8 Allen (Mass.) 259; Rosenthal v. Renick, 44 Ill. 202. 7. Scott v. Ware, 64 Ala. 174; Starke v. Wilson, 65 Ala. 576; Lehman v. Bradley, 62 Ala. 31; Teague v. Corbitt, 57 Ala. 529; Combs v. Tarlton, 2 Dana (Ky.) 464; Jones v. Commercial Bank, 78 Ky. 413; McCoy v. Nichols, 4 How. (Miss.) 31; Ford v. Hennessy, 70 Mo. 580; Collinson 7. Owens, 6 G. & J. (Md.) 4; Dale v. Rosevelt, 1 Pai. (N. Y.) 35; Vernon v. Valk, 2 Hill Ch. (S. Car.) 257; Early v. Garland, 13 Gratt. (Va.) 1; Robertson v. Wright, 17 Gratt. (Va.) 534; Alston v. Munford, (3) Trustees.-Ordinarily, a cestui que trust is not bound by a judgment for or against the trustee alone, but in cases where the trustee is authorized by law or the terms of the trust to represent the cestui que trust in the action, the latter is bound by the judgment.2 (d) PERSONS IN OTHER RELATIONS (1) Privity.-Judgments are conclusive upon all persons in privity with the parties thereto, the term privity denoting mutual or successive relationship to the same rights of property.3 1 Brock. (Va.) 266; Garnett v. Macon, 6 Cal. (Va.) 308. Compare Cunningham v. Ashley, 45 Cal. 485; Connolly v. Connolly, 26 Minn. 350. Nor is a judgment against an heir or devisee binding on the executor or administrator: Dorr v. Stockdale, 19 Iowa 269. The heirs are not bound by the allowance of a claim against the estate which is sought to be satisfied out of the real estate. Estate of Hidden, 23 Cal. 362; Beckett v. Selover, 7 Cal. 215; Stone v. Wood, 16 Ill. 177. Compare Speer v. James, 94 N. Car. 417. A judgment against the personal representative has been held prima facie evidence against the real estate. Sargeant v. Ewing, 36 Pa. St. 156; Steele v. Lineberger, 59 Pa. St. 308. Compare Saddler v. Kennedy, 26 W. Va. 636; National Bank v. Good, 21 W. Va. 455. But not conclusive evidence unless the personal representative is himself the heir or devisee. Boykin v. Cook, 61 Ala. 473; Stewart v. Montgomery, 23 Pa. St. 410; Willett v. Malli, 65 Iowa 675. 1. Sprague v. Tyson, 44 Ala. 338; Shay v. McNamara, 54 Cal. 169; Helm v. Hardin, 2 B. Mon. (Ky.) 231; Martin v. Reed, 30 Ind. 218; White v. Haynes, 33 Ind. 540; Clemons v. Elder, 9 Iowa 273; Prewett v. Land, 36 Miss. 495; Harris v. McBane, 66 N. Car. 334; Fish v. Howland, 1 Pai. (N. Y.) 20; Schenck v. Ellingwood, 3 Edw. Ch. (N. Y.) 175; Whelan v. Whelan, 3 Cow. (N. Y.) 537: Campbell v. Johnston, I Sandf. Ch. (N. Y.) 148; Reed v. Reed, 16 N. J. Eq. 248; Dunn v. Seymour, 3 Stockt. (N. J.) 220; Willink v. Morris Canal, 3 Green Ch. (N. J.) 377; Collins v. Lofftus, 10 Leigh (Va.) 5; s. c., 34 Am. Dec. 719; Piatt v. Oliver, 2 McLean (U. S.) 269; Caldwell v. Taggart, 4 Pet. (U. S.) 202. Compare Beals v. Illinois etc. R. Co., 27 Fed. Rep. 721. 2. Lindsey v. Stevens, 5 Dana (Ky.) 104; Whitford v. Crooks, 54 Mich. 261; Johnson v. Robertson, 31 Md. 476; New Jersey etc. Co. v. Ames, 1 Beasl. Ch. (N. J.) 507; Peterson v. Lathrop, 34 Pa. St. 223; Keely v. Weir, 38 Fed. Rep. 291; Calhoun v. Dunning, 4 Dall. (Pa.) 120; Corcoran v. Chesapeake Canal Co., 94 U. S. 741. A judgment against an assignee under an assignment for the benefit of creditors is binding against the creditors unless avoided for fraud or collusion. Field v. Flanders, 40 Ill. 470; Kerr v. Blodgett, 48 N. Y. 62. The equitable owner of a chose in action is bound by a judgment in an action prosecuted in the name of the owner of the legal title. Rogers v. Haines, 3 Greenl. (Me.) 362; Boynton v. Willard, 10 Pick. (Mass.) 166; Curtis v. Cisna, 1 Ohio 432. A decree of foreclosure against a mortgagee binds his cestuis que trustent. Johnson v. Robertson, 31 Md. 476; Willink v. Morris Canal Co., 3 Green's Ch. (N. J.) 377; Van Vechten v. Terry, 2 Johns. Ch. (N. Y.) 197. Compare Martin v. Reed, 30 Ind. 218; Henley v. Stone, 3 Beav. 355; Thomas v. Dunning, 5 De G. & Sm. 618. Where by statute the assignee of a chose in action must sue thereon in his own name, a judgment for or against him is binding on an assignor who retains some interest in the chose in ac tion. Wetmore v. San Francisco, 44 Cal. 294; Cottle v. Cole, 20 Iowa 481; Wilson v. Clark, 11 Ind. 385; Castner 7. Sumner, 2 Minn. 44; Williams v. Norton, 3 Kan. 224; Allen v. Brown, 44 N. Y. 228; Sheridan v. Mayor etc. of N. Y., 68 N. Y. 30; Curtis v. Mohr, 18 Wis. 615; Boynton v. Willard, 10 Pick. (Mass.) 166; Rogers v. Haines, 3 Greenl. (Me.) 362; Curtis v. Cessna, I Ohio 432. 3. Greenl. Ev., § 189; Bloodgood v. Grasey, 31 Ala. 575; Ladd v. Durkin, 54 Cal. 395; Shay v. McNamara, 54 Cal. 169; Webster v. Adams, 58 Me. 317; Campbell v. Hall, 16 N. Ÿ. 575; (2) Principal and Agent.-A principal is not bound by a judgment in an action conducted by the agent in his own name and for his own benefit.1 (3) Assignees and Vendees.-Assignees and vendees of property are bound by and may take advantage of prior judgments for or against their assignors and vendors.2 (4) Bailor and Bailee.-A judgment for or against a bailor is conclusive upon the bailee.3 the bailee.3 A recovery and satisfaction by either bailor or bailee is a bar to a subsequent action by the other; but a recovery and satisfaction by the bailee has been held not to bar an antecedent action by the bailor. Judgment against a bailee is not a bar to an action by the bailor against the Hair v. Wood, 58 Tex. 77; Wood v. "But it should be noticed that the ground of privity is property and not personal relation. To make a man a privy to an action he must have acquired an interest in the subject matter of the action either by inheritance, succession or purchase from a party subsequently to the action." Big. on Estop. (4th ed.) 135; Scates v. King, 110 Ill. 456; Dooley v. Patter, 140 Mass. 49; Coles v. Allen, 64 Ala. 98; Chester v. Bakersfield Assoc.. 64 Cal. 42; Bryan v. Malloy, 90 N. Car. 508; Zoeller v. Riley, 100 N. Y. 102. Assignees, Vendees, etc.-Bona fide purchasers without notice are not privies. Hager v. Spect, 52 Cal. 579. A judgment in a suit between an assignee and a third person is not binding on the assignor. McDonald v. Gregory, 41 Iowa 513. A grantee or assignee is not bound by a judgment in relation to the property rendered against the grantor or assignor in proceedings commenced after the conveyance. Marshall v. Crow, 60 Ala. 121; Todd v. Flourway, 56 Ala. 99; Cook v. Parham, 63 Ala. 456; Coler v. Allen, 64 Ala. 98; Winslow v. Grindal, 2 Greenl. (Me.) 64; Powers v. Heath, 20 Mo. 319; Bartero v. Real Estate etc. Bank, 10 Mo. App. 76; Mathes v. Cover, 43 Iowa 512; Weed Sewing Machine Co. v. Baker, 1 McCrary (U. S.) 579. "The rule of privity applies also as well to the judgment itself as a valuable claim as to the subject of the judgment and the issues decided by it." Big. on Estop. (4th ed.), 141; Bank of California v. Shaber, 55 Cal. 322. See also Kidder v. Blaisdell, 45 Me. 461. The rule does not apply to persons who might have claimed through a party to the litigation, but do not. Spencer v. Williams, L. R., 2 P. & D. 230. The foreclosure of a lien is not binding on any other lien holder not made a party to the action. Lyon 7. Sandford, 5 Conn. 544; Brush v. Fowler, 36 Ill. 58; Brainard . Cooper, 10 N. Y. 356; Matter of Smith, 4 Nev. 254. See also Sexton v. Weaver, 141 Mass. 273. 1. Principal and Agent. Lawrence v. Ware, 37 Ala. 553; Pico v. Webster, 12 Cal. 140; Warner v. Comstock, 55 Mich. 616. Unless the principal authorized the bringing of the suit. Nemetty v. Naylor, 100 N. Y. 562. In the absence of fraud or collusion, a judgment against the agent on a cause of action for which the principal is liable is probably conclusive upon the latter. Lyman v. Faris, 53 Iowa 498; Clark v. Wolf, 29 Iowa 197. 2. Adams v. Barnes, 17 Mass. 365. Thus a judgment against a feme sole is conclusive against her future husband with respect to any interest in the estate claimed through her. Hawkins v. Lambert, 18 B. Mon. (Ky.) 99. A judgment against the claimant of property is conclusive against him in a subsequent action for the property against the purchaser at an execution sale. Shirley v. Fearne, 33 Miss. 653. 3. Kent v. Hudson River R. Co., 22 Barb. (N. Y.) 278; Green v. Clarke, 12 N. Y. 343; Calkins v. Allerton, 3 Barb. (N. Y.) 171. Where the bailee delivers the property to a third person whom he believes to be the owner and is sued by the bailor, he may defend by showing a judgment against the bailor and in favor of such third person. Bates v. Stanton, 1 Duer (N. Y.) 79; Burton v. Wilkinson, 18 Vt. 186. 4. Steamboat Farmer v. McCraw, 31 Ala. 659. successful party.1 But judgment against a bailee in an action. defended by the bailor is binding upon the latter.2 (5) Garnisher and Garnishee.-A judgment against a garnishee is a bar to an action against him by the defendant for the amount which the former has been compelled to pay.3 In some States 1. A judgment for plaintiff in replevin was held no bar to an action in trover against him by the master of the defendant in the former action. Alexander v. Taylor, 4 Den. (N. Y.) 302. 2. Tarleton v. Johnson, 25 Ala. 300. 3. Garnishment.- See generally GARNISHMENT, vol. 8, p. 1242, et seq. The defendant may show that his claim against the garnishee is greater than the amount of the judgment against the latter. Mills v. Stewart, 12 Ala. 90; Ross v. Pitts, 39 Ala. 606; Barton v. Allbright, 29 Ind. 489; Canady v. Detrick, 63 Ind. 485; Greenman v. Fox, 54 Ind. 267; Allen v. Watt, 79 Ill. 284; Wigwall v. Union etc. Co., 37 Iowa 129; Groves v. Brown, 11 Mass. 334; Ladd v. Jacobs, 64 Me. 347; Hirth v. Pfeifle, 42 Mich. 32; Savin v. Bond, 57 Md. 228; Brown v. Dudley, 33 N. II. 511; Baltimore etc. R. Co. v. May, 25 Ohio St. 347; Tams 7. Bullitt, 35 Pa. St. 308; Noble v. Thompson Oil Co., 69 Pa. St. 409; Morgan v. Neville, 74 Pa. St. 52; Robeson v. Carpenter, 7 Mart. (La.), N. S. 30; Baxter v. Vincent, 6 Vt. 614. The garnishee is discharged to the extent of the amount that he has been compelled to pay though the judgment is erroneous; Duncan 7. Ware, 5 Stew. & P. (Ala.) 119; Gunn v. Howell, 35 Ala. 144; Pierce v. Carleton, 12 III. 358; Webster v. Lowell, 2 Allen (Mass.) 123; Dole v. Boutwell, 1 Allen (Mass.) 286; Wise v. Hilton, 4 Greenl. (Me.) 435; Killsa v. Lermond, 6 Greenl. (Me.) 116; Brown v. Dudley, 33 N. H. 511; Lomerson v. Huffman, 4 Zabr. (N. J.) 674; Anderson v. Young, 21 Pa. St. 443; Stearns v. Wrisley, 30 Vt.661; Stevens v. Fisher, 30 Vt. 200. According to Drake, the garnishee to prove his discharge must show: the judgment against himself. Barton v. Smith, 7 Iowa 85; Leonard v. New Bedford etc. Bank, 116 Mass. 210. That the judgment was valid. Loring v. Folger, 7 Gray (Mass.) 505; Matthey v. Wiseman, 18 C. B., N. S. 657. See also Westoby v. Day, 2 El. & B. 605. That payment was not voluntary; and not simulated or contrived. Wetter v. Rucker, Brod. & B. 491. That the court had jurisdiction of the subject matter and the parties. Harmon v. Birchard, 8 Blackf. (Ind.) 418; Richardson v. Hickman, 22 Ind. 244; Robertson v. Roberts, I A. K. Marsh. (Ky.) 247; Ford v. Hurd, 4 Sm. & M. (Miss.) 683. And the garnishee is protected if, having contested the jurisdiction of the court, the decision was against him. Gunn v. Howell, 35 Ala. 144; Wyatt v. Rambo, 29 Ala. 510. That before obtaining execution the plaintiff performed all acts required by law as conditions precedent thereto. Oldham v. Ledbetter, 1 How. (Miss.) 43; Grisson v. Reynolds, 1 How. (Miss.) 570; Myers v. Uhrich, 1 Binn. (Pa.)_25; Moyer v. Lobengier, 4 Watts (Pa.) 390); Drake on Attachment, § 711. The garnishee need not contest the lack of jurisdiction of the defendant when the latter is present; otherwise he must. Wheeler v. Aldrich, 13 Gray (Mass.) 51; Thayer v. Tyler, 10 Gray (Mass.) 164; Morrison v. New Bedford Inst., 7 Gray (Mass.) 269; Pratt v. Cunliff, 9 Allen (Mass.) 90. The garnishee must take advantage of any defects which would render a judgment in the main case void. Laidlaw v. Morrow, 44 Mich. 547; Cota v. Ross, 66 Me. 161; Erwin v. Heath, 50 Miss. 795; Woodfolk v. Whitworth, 5 Coldw. (Tenn.) 561. But he cannot take advantage of mere irregularities. Earl v. Matheney, 60 Ind. 202. A judgment for the garnishee, charged with holding defendant's personal property by a fraudulent transfer, is a bar to an action on the case against him for aiding in the alleged fraudulent transfer. Bunker v. Tufts, 57 Me. 417. The garnishee is bound by the judg ment against him, though he was defaulted. Flanagan v. Cutter, 121 Mass. 96. It seems that a voluntary payment does not discharge the garnishee of his liability to the original defendant. Wetter v. Rucker, 1 Brod. & B. 491; s. c., B. Moore 172; Hebel v. Amazon Ins. Co., 33 Mich. 400; Schindler v. Smith, 18 La. An. 476. See also Hirth v. Pfeifle, 42 Mich. 31. |