for them to make one. Winchell v. Corey, 115 Mass. 560. But mere.delay on the part of either in taking steps to recover his property would not be sufficient for the purpose. Winfield v. Dodge, 45 Mich. 355; [S. C. 7 N. W. REP. 906. With the horse and the money respectively in the hands of a party not the owner, a new contract must be made out, as it must have been if there had been no futile attempt to trade whatever.

Possibly there may have been in this case some circumstances to be put to the jury as evidence to show a sale subsequent to the Sunday trade; but the defendant did not go to the jury on any such theory. He treated the case as one of attempted rescission of a contract, and raised the question of unreasonable delay and of improper treatment as barring the right or entitling the defendant to damages. But the judge correctly instructed the jury that there was no contract in the case, and therefore nothing to rescind and nothing to constitute a basis for recoupment. And this instruction rendered wholly immaterial a very large proportion of the evidence and the judge's rulings upon it. The warranty and the breach were of no legal importance what

ever.

The proposition that the parties, being equally in the wrong, will be left by the law where they have voluntarily placed themselves, is sufficiently answered in what is said in the case of Tucker v. Mowry. If plaintiff while the horse was in his hands misused it, or failed to observe any duty implied from his assuming the position of bailee, the defendant will be entitled to his appropriate remedy. But no right of action for such misconduct or neglect could be made use of as a defense to an action for money had and received. damages could not, from their unliquidated nature, be applied by way of setoff; and to recoupment there would be the equally insuperable objection that the damages do not arise out of any contract which the plaintiff is seeking a recovery upon. Ward v. Fellers, 3 Mich. 1; Molby v. Johnson, 17 Mich. 382.

The judgment must be affirmed with costs. (The other justices concurred.)

The

HILL . WEBBER and another.

Filed February 27, 1883.

Where, in an action of replevin, an issue of fact has been joined, but the case has not been noticed for trial, an affidavit and motion for judgment by defendant, as in case of nonsuit, that was not served until three days after the entry thereof in the special motion-book, and without four days' notice to plaintiff thereof, will not entitle the defendant to a judgment.

A valuation of the property and a final judgment do not accompany the granting of a motion for judgment in an action of replevin, as in case of nonsuit, and without a distinct notice to opposite party and a hearing. Such judgment is interlocutory, and merely decides the right of property, and refers the ascertainment of the value to a future inquiry before the court.

Error to Mecosta.

G. K. Grout, for plaintiff and appellant. ants.

William O. Webster, for defend

GRAVES, C. J. This was an action of replevin in which the property was taken on the writ and delivered to the plaintiff. Issue was joined July 23, 1881, and the first regular term thereafter was in October of that year and the next occurred February 7, 1882. Both sides neglected noticing the cause for trial for said terms respectively, and on the fourth day of February, being three days in advance of the opening of said second term, the attorney for defendants filed his affidavit with the clerk for judgment as in case of nonsuit, and at the same time entered the motion in the special motion-book. Subsequently and on February 7th, being the first day of said second term, the attorney for defendant served a copy of his affidavit on the attorney for the plain

tiff, together with a notice that the motion would be heard on February 10th. This service on the seventh of February was the first and only service, and it was made without any extension of time by the court. On the motion being called up at the time specified the plaintiff's attorney objected that it should not be entertained because the affidavit on which it was based was not served until three days after the entry in the special motion-book, and also for the reason that there should have been at least four days' notice.

The court overruled the objection and continued the motion until the thir teenth of March. On being called at that time the attorney for the plaintiff failed to appear and defendant's attorneys consented that it might stand over until the next day, and just before the close of the forenoon session of that day, being the 14th, the motion was again called up and the attorneys for defendants appeared but no one appeared for the plaintiff, and the court immediately granted it. At the same time the attorneys for defendants filed a written waiver of return of the property and submitted proofs of its value and the court instantly rendered judgment in the defendant's favor for the amount. These proceedings occurred without any other notice than the notice of motion served on the seventh of February. March 15, 1882, the judgment by direction of the court was formally entered up in the journal for the assessed value of the property, being $1,327, and the plaintiff brought error. The authority for the proceeding is found in the following provisions: First, a provision in the replevin law in these terms: "After issue joined in any action of replevin, either party may give notice of trial, and if neither party shall have noticed the cause for trial, the defendant may move for judgment as in case of nonsuit, in the same manner as in personal actions,” (Comp. Laws. § 6752;) and, second, a general provision for personal actions in the following words: "When an issue of fact shall be joined in any cause, and the plaintiff shall neglect to bring such issue to trial, according to the course and practice of the court, such court, on the application of the defendant, may give the like judgment for the defendant as in cases of nonsuit, or may, upon just terms, allow a further time for the trial of such issue." Comp. Laws, $ 6036.

The ground of these applications for judgment as in case of nonsuit is that the plaintiff has unreasonably delayed to bring on a trial and the purpose is either to speed the cause or relieve the defendant by giving him a judgment of the same effect as one upon a nonsuit. But inasmuch as the latter precludes in that case an investigation of the merits, and the mainspring of the proceeding is a supposed equity in favor of the defendant, the remedy has always been subject to very strict practice.

The defendant must not only make out a complete case within the reason on which the application rests and in accordance with the actuating principles, but he must proceed in critical conformity to the rules and practice of the court. Tidd, 822 et seq.; Graham, P. Ch. 15; 1 Burrill, 420.

Now according to the rules of court all special motions except motions for a continuance must be entered in the special motion-book; and the affidavits and other papers on which the motions are founded must be filed at the time of entering the motions, and copies thereof must be served on the attorney of the opposite party on or before the day of entering such motions unless further time is granted. Rules 28, 29.

The defendant's motion for judgment was within these provisions and no other mode existed for bringing it on. No doubt the plaintiff might have waived observance of this requirement, but he did not. It was his right to insist on strict compliance and he did so. He objected that copies of the papers were not served on or before the day of entering the motion and the objection was a valid one.

The attempt to uphold the regularity of the motion on an assumption that the provision fixing the time of service is generally disregarded is entirely

fallacious. A practice so obviously astray from the rule of court could only occur in one case after another as therein consented to, and a course of proceeding which rests in every instance when tolerated on the consent of the parties and not on the authority of law cannot be allowed to govern where such consent is not merely wanting but is expressly withheld. And if it be a fact that the plain requirement of the rule is customarily set aside with the acquiescence of counsel it cannot have any force in a case such as this, where acquiescence is promptly and regularly refused. Another defect though not made a ground of objection is not unworthy of notice. The motion was prematurely launched.

The right to move was considered as arising from the plaintiff's neglect to bring the action to trial at either of the two terms next following the joining of issue, and yet the motion was commenced before the second term had arrived. This was not regular. Jackson v. Vroman, 6 Cow. 392; Griffith v. Miller, 7 Wend. 514.

It may not be amiss to advert to another point. The plaintiff argues that it was not competent to proceed to assess the value and enter judgment for it with no other notice than that given for the motion; but the defendant's reply that no further notice is prescribed, and that in the very nature of the case the inquisition of value and the giving of final judgment belong to the subject-matter of the motion. The provision of the replevin law allowing judgment for the value on the waiver of a return, (Comp. Laws, § 6758.) is supposed by the defendants to support their contention on this subject. But this is a mistake. The provision authorizes an assessment of value on the trial or on the assessment of damages as the case may be. Now where judgment is taken as in case of nonsuit there is no trial. It is the failure to bring on a trial that gives the privilege to take such a judgment. Hence this branch of the provision is plainly inapplicable.

But this position of the defendant is unsound in principle. It was never intended that a valuation and final judgment should accompany the granting a motion for judgment as in case of nonsuit and without any distinct notice and hearing. Such a practice would not accord with the customary methods of the law nor with the ends of justice.

No doubt the statute is open to the construction that the value may be recovered in a judgment as in case of nonsuit; but the construction which will permit it can only apply and operate by requiring that such value shall be ascertained under the same conditions as are necessary for the assessment of damages. This seems to be the real sense of the second branch of the abovementioned provision. The terms are not as clear as they should have been, but the intent is not very obscure. We have not overlooked the defendants' argument that no damages were claimed and hence that there was no possible occasion for an assessment of any, and so, that no future stage could exist for which to notice an assessment of value. This is not very persuasive. If it were sound it would tend to show that in such a case no recovery at all for the value would be practicable, on account of the absence of provisions for an inquisition by due course of law. But obviously the statute refers, not to the act of assessing damages, but to the stage or time for assessing them; and this stage or time must occur whether the defendant makes any claim for damages or not.

It was not supposed the defendant would be bound to insist on damages, nor was it intended that the plaintiff's right to have reasonable time and notice should depend on the defendant's election in that matter. A defendant may refuse to demand damage; but if he does refuse and nevertheless asks a judgment for the value, that value must be assessed, and the assessment must be had as though there were damages to be assessed, and the like notice of the assessment must be given. The judgment to be entered on the motion where the defendant is entitled to the whole value is not a final judgment.

It is interlocutory and merely decides the right, and refers the ascertainment of the value to a future inquiry before the court. It was once necessary in some jurisdictions to have a writ of inquiry awarded, and it may be so still. Under the existing system in this state the law allows the more direct and easy method of an inquisition by the court.

The judgment must be reversed with costs, and the cause remanded for such other and further proceedings as shall be agreeable to law. (The other justices concurred.)

EGGLESTON v. KENT CIRCUIT JUDGE.

Filed February 27, 1883.

Mandamus to compel the court below to allow relator, against whom judgment had been entered upon the findings of a judge that has since gone out of office, to file exceptions thereto,denied, because of the delay and want of diligence on the part of relator.

Mandamus.

Jacob Kleinhaus, for relator. Godwin & Earle, for respondent.

MARSTON, J. This is an application for a mandamus commanding the respondent to enter an order in a certain cause giving the relator leave to file exceptions to the findings of the court therein. It appears that an action was commenced April 26, 1878, by Return Strong against Augustus D. Griswold and relator; that said cause was tried at the October term, 1878, and that on the twenty-ninth day of May, 1880, a written finding of the facts and law was filed by the court, and judgment rendered thereon the same day against the defendants. The relator shows that he had no notice of the filing of such findings or rendition of judgment thereon, until about the eleventh day of April, 1882, and that he thereupon caused a motion to be made asking leave to make and file exceptions, which was denied. The relator also shows that he had made examinations and inquiry and could not learn that any judgment had been entered, there being no calendar entry thereof, and that he was not present in court when said judgment was rendered.

The return shows that the judge of said circuit at the time said cause was tried and judgment rendered, ceased to hold that position on the first day of January, 1882.

We are of opinion that the writ should not issue. In view of the time allowed to elapse after the judgment was rendered, and the change which has taken place in the court, the relator has not made such a showing of diligence on his part as would entitle him to the relief asked for.

It is not often that a cause is permitted to sleep so long without inquiry being made to ascertain its status, and although the relator might not have succeeded in ascertaining the condition of the cause by making inquiry in one direction, still there were other channels open to which he ought to have resorted. The writ must be denied with costs. (The other justices concurred.)

MARSHALL v. BROWN.

Filed February 27, 1883.

It is not a valid objection to the testimony of a medical expert that he has but little knowledge on the subject upon which he is examined except that derived from books, as he is entitled to speak from the accepted facts of medical science.

It is not proper, on cross-examination, to ask a medical expert if he is acquainted with a certain book, and, calling his attention to a certain paragraph, ask a question in the language of the book, and thus indirectly introduce such passage in evidence.

Error to Kent.

J. W. & O. C. Ransom, for plaintiff. Hughes, O'Brien & Smiley, for defendant and appellant.

COOLEY, J. This case comes before us for the second time; the first verdict having been set aside on exceptions and a new trial ordered. See 47 Mich. 576; [S. C. 11 N. W. REP. 392.] On the second trial the plaintiff again recovered. The action is for a negligent injury. The defendant is a druggist of the city of Grand Rapids. The plaintiff called for Epsom salts at his store and a clerk delivered instead suphate of zinc, from the taking of which before she discovered the error, the plaintiff claims to have been seriously and permanently injured. To show the effects of sulphate of zinc on the system experts were called, but they seem to have very little knowledge on the subject beyond that derived from books. Several exceptions were taken to their evidence, which we do not think well founded. They were entitled to speak, as they did, from the accepted fact of medical science.

One error occurred, however, which it is impossible to overlook. It was decided in People v. Hall, 48 Mich. 486, [S. C. 12 N. W. REP. 665,] that it was not competent to read professional books to the jury as evidence. The decision had not been made when this case was tried the second time; if it had been the error now complained of would, probably, not have been committed. On the cross-examination of Dr. Wood, a witness for the defendant, he was asked if he was acquainted with a certain book. He replied that he had heard of it but had not read it. He was then asked whether it was considered good authority, and he said it was. He was then requested to read a certain paragraph during the recess of the court. When the court convened again, he was recalled and counsel reading from the book the paragraph to which his attention had been called, asked him whether there was a case reported of taking sulphate of zinc, followed by vomiting, purging, and death? As this was what the paragraph stated, the evident purpose of the question was to put the passage from the book in this indirect manner before the jury, instead of reading from it directly. The witness demurred to this method of examination, but was required to answer and did so.

The case differs from Finney v. Cotrell, 48 Mich. 584, [S. C. 13 N. W. REP. 174,] where a medical book was produced to contradict a witness who professed to be testifying from it. The verdict must be set aside with costs, and a new trial ordered.

(The other justices concurred.)

RUMNEY V. COVILLE.

Filed February 27, 1883.

In this state, except in the case of the death of one or more of the donees of a power, a power conferred on several must be jointly executed; and when two persons are named in a will as executors "with full power and authority to sell and convey real estate," and one of such persons renounces the trust, the other cannot execute the power, and a contract executed by him alone to sell and convey such real estate is not valid.

Error to superior court of Detroit.

Charles M. Swift, for plaintiff. Hawes & Phelps, for defendants and appellants.

COOLEY, J. This action is upon a promissory note for the sum of $598.25, given by the firm of A. M. Coville & Co., payable to the order of defendant, John Webster, and by him indorsed. The question at issue is, whether this ever became an effective promissory note. The facts bearing upon this question, as they were developed on the trial, are the following: In the year 1875 Martha J. Rumney, of Detroit, died, leaving a last will and testament, whereby.