not be necessary at this day to enter upon a discussion in denial of the right of the government to take from either individuals or corporations any property which they may rightfully have acquired. In the most arbitrary times such an act was recognized as pure tyranny, and it has been forbidden in England ever since Magna Charta, and in this country always. It is immaterial in what way the property was lawfully acquired; whether by labor in the ordinary vocations of life, by gift or descent, or by making profitable use of a franchise granted by the State: it is enough that it has become private property, and it is then protected by the "law of the land." Even municipal corporations, though their charters are in no sense contracts, are protected by the Constitution in the property they rightfully acquire for local purposes, and the State cannot despoil them of it. Terrett v. Taylor 9 Cr. 43; Pawlet v. Clark 9 Cr. 292; State v. Haben 22 Wis. 660; People v. Common Council 28 Mich. 228.

We have said nothing of those cases in which charters have been amended by limiting the tolls that may be taken, as it is conceded by relator that that is not what has been attempted in this case. It was a part of the original contract that the tolls should not be reduced by the State until the annual returns should realize to the stockholders ten per centum annually on their investment, and it is not claimed that that limit has been reached. What the State claims a right to do is to deprive the respondent of the privilege any longer to take tolls for travel and traffic on two miles and a half of its road. If it may do this in respect to one part of the road, it may in respect to any other part. If it may exclude the respondent from Detroit, it may from Howell also, or from any township on the line, and a single section of a statute may annihilate the property of respondent altogether. A statute which could have this effect would not be a statute to amend franchises, but a statute to confiscate property; it would not be a statute of regulation, but of spoliation.

It may be that what the Legislature of 1879 proposed to accomplish would in itself work no hardship to respondent, and would be highly desirable to the city; but the principle violated is the fundamental principle that underlies all property; and the first successful inroad upon it that obtains judicial sanction may be a precedent that shall let in innumerable evils. Courts must look beyond the particular case to the governing principle, and be governed by that, regardless of temporary and special inconveniences. But even such inconveniences must be trivial, since the power to appropriate private property to public uses is always ample and always at command.

It results, from what has above been said, that the mandamus must be denied.

The other Justices concurred.

EDWARD H. CHOPE, RELATOR V. DETROIT AND HOWELL PLANK ROAD COMPANY.

INFORMATION in the nature of quo warranto. Submitted January 20. Denied April 7.

F. A. Baker and E. F. Conely for relator.

C. A. Kent and G. V. N. Lothrop for respondent.

COOLEY, J. This is an application for leave to file an information in the nature of a quo warranto, to inquire by what right the respondent claims to have, hold and exercise the privilege to exact, demand and collect tolls of persons passing over any of the paved portion of Grand River avenue within the limits of the city of De

troit. The questions involved have been fully considered in the case of the City of Detroit v. The D. & H. Plank Road Co. just decided, and to which we refer. The conclusions there reached lead to a denial of the application.

The other Justices concurred.

43 150 f152 260C

WILLIAM MITCHELL V. ROBERT CHAMBERS, WARREN FULLER
AND THOMAS G. LESTER, SURVIVORS OF GARRY CHAMBERS.
Bail for release of vessel-Power of ship's husband to bind co-

owners.

Any written agreement that constitutes part of the bargain by which title has been acquired may properly be put in evidence where the purchase is to be shown.

Non-joinder of proper co-defendants must be taken advantage of by plea in abatement and does not continue open to objection till the submission of the case.

A general count for money paid is sufficient in an action by a bondsman to recover back money paid for the benefit of his principal; and if the action is brought on both general and special counts, any objections based on the latter are immaterial. Findings are not open to dispute; but additional facts cannot be presumed, and must be regarded as not having occurred. Proceedings in another court when introduced collaterally, cannot be questioned for error or irregularities where no jurisdictional defect is alleged against them.

Part-owners of a vessel are by construction of law, parties to any proceedings in rem against her, and are entitled to intervene actively and contest its liability, the extent of the claims against it, and the validity of its seizure and detention.

Judgments against a vessel on a claim against her, and against her managing owner and the surety upon a recognizance for her release from detention, are part of a general adjudication of the liability.

The several part-owners of a vessel are usually co-tenants, not partners, and will not be regarded as partners unless it distinctly appears that they are so.

A vessel-master has no authority as such to find bail for the ship in behalf of the owners.

The ship's husband cannot bind co-owners by obtaining bail to release the vessel from seizure on civil process if the co-owners themselves were not personally liable and neither authorized him to obtain it or acquiesced, and if there was no such emergency as would call for the assumption of personal responsibility. The assent of vessel-owners to the acts of the ship's husband cannot be implied from their silence except as to such acts as are fairly appropriate to occasions with which he is usually allowed to deal.

Co-owners of a vessel are not personally liable on claims incurred by it before they acquired their interest.

The necessity for obtaining the release of a vessel from seizure does not necessarily imply that the release was obtained on such conditions as to bind owners personally.

It seems that a ship's husband is not warranted in assuming extraordinary powers without obtaining authority from the owners if they can be readily communicated with, as by telegraph. One who consents to become surety for a party in a legal proceeding must see to it that he acts on the request of the party himself or his attorney or agent duly authorized to represent him in that respect.

The interest of the managing owner of a vessel entitles him to act for himself in obtaining bail for its release from detention, and the bail cannot hold co-owners personally liable for the security without showing that they were parties to the transaction.

Case made after judgment from Bay. Submitted January 22. Decided April 7.

ASSUMPSIT. Plaintiff brings error.

Holmes, Collins & Stoddard for plaintiff in error. Joint owners of a vessel are partners as to its earnings while run upon their joint account, Muldon v. Whitlock 1 Cow. 290; King v. Lowry 20 Barb. 582; Williams v. Lawrence 47 N. Y. 462; Abbott on Shipping 111, 115; the managing owner of a vessel can obtain bail for her release from seizure, and his co-owners will be liable to the bail, Bangs v. Lowber 2 Cliff. 157; Burns v. Parish 3 B. Mon. 8; Hikes v. Crawford 4 Bush 19; Elmendorph v. Tappan 5 Johns. 176; Purviance v. Sutherland 2 Ohio St.

478; Weaver v. Tapscott 9 Leigh 424; Hamilton v. Johnston 82 Ill. 40.

Hatch & Cooley for defendants Chambers, as to the admissibility of a contract for bail made by the managing owner of a vessel to free it from detention, as evidence to bind co-owners, cited Pipp v. Reynolds 20 Mich. 88; Turner v. M'Carthy 22 Mich. 265; Halsted v. Francis 31 Mich. 113; Hurd v. Brown 37 Mich. 484; Hayes v. Knox 41 Mich. 529; a surety for one partner to secure the payment of a firm debt has no redress against the other partners, Tom v. Goodrich 2 Johns. 213; Walden v. Sherburne 15 Johns. 409; Krafts v. Creighton 3 Rich. 273; Knox v. Devens 5 Mas. 380; Sluby v. Champlin 4 Johns. 460; a joint owner of a vessel is not a partner with other owners thereof, Sheehan v. Dalrymple 19 Mich. 239.

GRAVES, J.

Mitchell having paid certain executions from the District Court of the United States for the eastern district of Michigan, issued on a recovery in admiralty upon a stipulation in the nature of a recognizance in which he had joined as surety for the release of a vessel under seizure for previous supplies. repairs and wages, sued Lester, Fuller and the two CL. *bers, as respective part-owners of the vessel, for what he had expended as so much money paid to their use. No defense was made except on the part of Chambers and Chambers. They pleaded the general issue, and denied on oath that they had anything to do with the giving of the stipulation or recognizance. The learned circuit judge heard the cause upon the facts, and made a special finding and awarded judgment thereon in favor of Mitchell. The contending defendants proceeded to bring up the controversy for review upon several points of law by means of a case, but before the record was made up and signed, one of them, Mr. Garry Chambers, died. His death was suggested and the case was then completed and certified, and is now before us. The findings are as follows: