Gager v. Babcock 48 N. Y. 160, 161. And when the question of authority concerns the act of a part-owner of a vessel, and the act is one which may be on his individual account, and not on the account of his co-owner, and the transaction does not furnish explanation on its face, it is incumbent on him who alleges that the act was on behalf of both, to show, as matter of fact, that it was 80. Broom's Com. 534, 535.

Now Lester was owner of half of the vessel, not only at the time of the arrest but also for the whole preceding period in which the several claims arose, and had consequently a large and much the largest interest to be protected and fostered. It was quite competent for him to act on his own account when he proceeded to get the vessel liberated. The stipulation or recognizance was made by him as sole principal and by Mitchell as his surety, and the finding is express that the request to the latter to become surety proceeded from Lester and Fuller, and that "Lester signed the said stipulation as principal and as claimant" and that Mitchell "signed and executed as surety." The plain meaning is that Lester was principal and Mitchell his surety.

There is no finding or suggestion that the defendants Chambers were parties to the request made to Mitchell, or that the proceedings were in their behalf, or authorized or desired by them, or that Lester or Fuller assumed to be their agents. Neither is there any finding that Lester assumed to represent or had it in his mind to represent any interest except his own and possibly Fuller's. On the other hand, the stipulation indicates and the finding states that Lester acted "as principal and claimant" and the effect is to raise an inference that he did not act for the defendants Chambers. According to the obvious construction of the finding, Lester, in getting Mitchell to become surety and in doing what was done, did not intend to act and did not assume to act for those parties, and did not intend to get Mitchell and did not assume to get him to be their surety, and

there is no finding of any conduct on the part of the Chambers tending in any manner to indicate their accession to the transaction or submission to liability.

The result is that as to the defendants below, Robert Chambers and Garry Chambers, who alone made defense, and on whose account only the case has come up, the judgment must be reversed, and judgment must be entered in this court on the findings in favor of the said Robert Chambers, as survivor of himself and the said Garry Chambers, and for the costs of both courts.

The other Justices concurred.

THE CITY OF DETROIT, RELATOR V. THE BOARD OF AUDITORS OF WAYNE COUNTY.

Detroit House of Correction-Maintenance of Convicts.

The maintenance of prisoners sentenced by the Recorder of Detroit to the Detroit House of Correction is a proper charge against Wayne county, even though no contract has been made for their support; and the county auditors must audit claims therefor at reasonable rates.

MANDAMUS. Submitted January 23. Granted April 7.

Alfred Russell for relator. Mandamus is the proper mode of compelling the allowance of a claim by the board of supervisors, if the county is liable for it, Bristow v. Supervisors 3 Mich. 475; the House of Correction of Detroit is not subject to the control of the city, Detroit v. Laughna 34 Mich. 402, and as to the county of Wayne it is simply a substitute for the county jail, Elliott v. People 13 Mich. 365; the expense of keeping prisoners in a county jail shall be paid by the county itself, Comp. L. § 2195.

43 MICH.-22.

Cornelius J. Reilly for respondent.

The Legislature cannot create a debt from one person or corporation to another without the consent of the person to be charged with it, Hampshire v. Franklin 16 Mass. 83; Sharpless v. Mayor 21 Penn. St. 165; McCagg v. Mayor 51 Ill. 17; People v. Hurlbut 24 Mich. 44.

MARSTON, C. J. In Wesley v. People and Dupont v. People 37 Mich. 384, it was held that the House of Correction must for certain offenses be treated as if it were the jail of Wayne county, and that the Recorder of the city of Detroit had authority to sentence convicts to the House of Correction, and that no contract was necessary with the county as a condition precedent to such right.

The legislation relating to this subject in no way interferes with the right of the board of auditors of Wayne county to adjust claims against their county, or places that county in this respect upon a footing essentially different from other counties in the State.

The Legislature would seem to have the undoubted right to prescribe where parties convicted of crime should be confined. In reference to the Detroit House of Correction it is left optional with the board of supervisors of the several counties except Wayne to enter into contracts for the keeping of certain of their convicts, and upon such contracts being made, prisoners are to be confined in the House of Correction. No such contract is required in the first instance with Wayne county. The statute directs that prisoners shall be sentenced to that institution, and contemplated that the compensation therefor shall be determined, not by a contract, but upon the rendition of the account thereafter. The Superintendent of the House of Correction cannot claim and insist upon any rate of compensation he may deem proper, nor could the board of auditors practically annul the legislation by declining to audit such claims or by auditing them at a sum far below what would be right

and proper. The Legislature has thought proper to create the liability, leaving it with the auditors to fix and adjust the compensation, and this in the light of the contracts made with other counties would seem to be a very simple matter indeed. This places Wayne county substantially on the same footing with other counties in the State, and leaves no room for complaint.

The writ must issue as prayed for.

The other Justices concurred.

FREEMAN GODFREY AND SILAS F. GODFREY V. GEORGE H.
WHITE, AMOS RATHBONE, ALFRED D. RATHBONE ET AL.

Partnership accounting-Disposition of lands-Allowance of compensation to partners and of interest on advances.

Lands that are part of a common partnership stock have in equity the character of personalty; and the legal title thereto is subordinated to the incidents. of partnership funds and accounting. Partnership lands cannot, in Michigan, be distinguished from other assets for purposes of settlement.

Proceedings between partners for an accounting are always for the principal purpose of reaching a statement of money balances and a division of assets as personalty, and being essentially a personal and not a real controversy, may be carried on in courts within whose jurisdiction the parties live and do business, irrespective of the location of the partnership lands.

Partners cannot ordinarily claim allowances for services exceeding those of their associates; but where those who do not expect to be personally charged with the business of the firm perform special services, it is proper to allow them compensation beyond their share of the profits if they had an understanding with the others that they were to be compensated for them.

Failure in duty as a partner may be a ground for dissolving the partnership, but not for a claim by diligent partners for compensation.

An agreement to compensate cannot be implied from the mere fact that services were rendered.

A merchant who for his own purposes sends his customers to another dealer does not thereby acquire any claim on him.

Interest cannot be allowed at ten per cent on an accounting if there has been no written agreement for that rate.

Advances by partners for the benefit of the business do not draw interest unless an intent that they shall do so can be inferred from usage or from circumstances, or unless it is understood by the partners that it shall be allowed.

In a suit for an accounting an allowance was properly made for a reasonable sum paid by complainant to a competent accountant for the purpose of arriving at an adjustment, the services being necessary and of use to all parties and therefore a common charge on them.

Partition may be made by consent; but it is not an incident to a suit for a partnership accounting in which the partners usually have a right to have the assets disposed of. If land belonging to the firm is not disposed of, it must be left as a distinct tenancy in common so that the tenants may have it partitioned in a separate suit.

Partition is a local proceeding, and can only be enforced in a court which has jurisdiction of the territory where the land is. Deponents cannot waive the reading of their depositions before signing them; depositions so signed are inadmissible in evidence. Where all the parties to a partnership accounting appealed and the case was so disposed of that neither prevailed rather than another, the cost of printing the record was apportioned according to the interest of the parties in the firm, and in other respects each party paid his own costs.

Appeal from the Superior Court of Grand Rapids. Submitted February 10 and 11. Decided April 7.

BILL for partnership accounting. Both parties appeal.

A consent decree

Norris & Uhl for complainants. cannot be materially varied without the assent of both parties (2 Dan. Ch. Pr. 1029 n. 10; Leitch v. Cumpston 4 Paige 476; Jenkins v. Eldredge 1 Woodb. & M. 61; Clark v. Hall 7 Paige 382), nor can it be set aside, Harrison v. Rumsey 2 Ves. 488, nor appealed from, 2 Dan. Ch. 1459; Coster v. Clarke 3 Edw. Ch. 405; Atkinson v. Manks 1 Cow. 691; French v. Shotwell 5 Johns. Ch. 564; De Carters v. Lafarge 1 Paige 574; Monell v. Lawrence 12