RIGGS V. BOARD OF EDUCATION OF DETROIT.

The library is a public one, sustained and regulated by a public corporation for city purposes, and the use-if there can be any comparison of such uses-is much more general than the former one could have been. It is emphatically a public use, and one of the few to which special funds are expressly devoted by the constitution of the state.People v. Treasurer of Wayne County, 8 Mich., 392; Wayne County v. Detroit, 17 Mich., 390; People v. Controller of Detroit, 18 Mich., 445. The power to vacate public spaces is very broad, but was not required in this case, as the use is within the dedication.

The action of the council in 1855, acting as a land board, whatever might have been its character, could not have restricted the power given by the charter in this regard. But we can conceive of no way in which that action could become important. Congress gave that body as a land board no legislative powers, and could give them none for the powers of city legislation must come from the state. The act of congress merely transferred to the land board the residuary lands and funds, which had formerly been held by the governor and judges in the same capacity. They could not recall the action of their predecessors, nor meddle with lands they had disposed of. These lands had been dedicated to public uses in 1807, and had been used, and the deficiency that might have existed in the vagueness of the dedication was remedied by the statute of that year, which gave the city a broad discretion, and retained no control in the land board. Thenceforward the public interest was only subject to legislative interference by the city, or by the sovereignty of the territory or state. The action of the land board in 1855 was, therefore, nugatory, and beyond the jurisdiction of that body, and the land remained subject to the legal discretion of the city, to be exercised by its legislation for the public purposes indicated by the act of 1807, or such other purposes as would be lawful and not be repugnant to that act.

RIGGS V. BOARD OF EDUCATION OF DETROIT.

The action complained of is in all respects conformable to law and to the objects of the dedication, and if it should be conceded (which is not to be understood as decided) that complainant has a right to intervene as a lot owner, she must take her property, and any supposed interest it gives her in the triangle, subject to such uses as are lawfully imposed upon it.

It follows that the bill makes out no cause of grievance. The decree must be reversed, and the bill dismissed, with costs of both courts.

The other Justices concurred.

Elias H. Rawson v. Archibald Finlay.

Prastice in circuit court: Pleadings: Questions of title to land: Evidence. Where an action of trespass commenced before a justice of the peace, has been certifled to the circuit under the statute (Comp. L. 1871, § 5330), for the reason that it appeared from plaintiff's evidence that a question of title to land was involved, the fact that the defendant had failed to give notice with his plea, that title would come in question, does not, on the trial in the circuit, operate as an admission of the plaintiff's title, so as to exclude evidence of title in defendant; the case stands in the circuit subject to the same rules of proof and disproof as though it had been originally commenced there. Pleadings: General issue: Evidence: Possessory right. Our statutory general issue, like the plea of not guilty, is a denial of all the material allegations in the declaration, and is sufficient to enable the defendant to contest all such allegations and to put the plaintiff upon the proof of all or any of them; and under it a freehold or mere possessory right in the defendant may be given in evidence.

Error to Kalamazoo Circuit.

Heard May 6. Decided May 13.

O. T. Tuthill and Arthur Brown, for plaintiff in error.

Hawes & Edson, for defendant in error.

RAWSON V. FINLAY.

GRAVES, J.

The

Finlay sued Rawson before a justice of the peace, in trespass, and declared against him for a tortious entry upon certain of his premises described in the declaration, and for taking and carrying away therefrom a parcel of lumber belonging to him. Rawson pleaded the general issue, and gave notice that he should give in evidence that he found the lumber, and requested Finlay to take it away if it belonged to him. No other pleadings were put in. parties proceeded to trial before the justice, and Finlay gave evidence, tending to show that he was the owner of the premises claimed to have been trespassed upon. But Rawson not admitting Finlay's ownership, the justice certified the cause to the circuit court, pursuant to the statute. -Comp. L., § 5330. The cause coming on to be heard in the latter court, Finlay gave evidence tending to show that he drew the lumber in question on the land in controversy, in order to build a house, and that Rawson removed the lumber therefrom to his barn-yard on an adjacent parcel. Finlay gave no other evidence upon the question of title or possession.

Rawson then offered to show, among other things, an exclusive and adverse possession in himself for twenty years, and that he was the owner, and that Finlay had never been in possession. The court, upon objection, excluded the evidence and ruled that Rawson, having failed to give notice that title would come in question, thereby admitted title in Finlay, and the jury were instructed that if they found that Rawson entered upon the premises and carried therefrom Finlay's lumber, they should give him a verdict for the value of it. They accordingly returned a verdict in his favor for twenty-nine dollars.

We think the court erred in the view taken of the case, and of the statute. The regulations restricting the defense in special cases originating in justice's courts were not applicable to this cause. When the action went to the

RAWSON V. FINLAY.

circuit court it was because the subject of title which Finlay found it needful to go into to maintain his case could not be tried by the justice, and the very object of the law in consigning the litigation upon such contingency to the tribunal having power to investigate and determine that subject, was to afford opportunity to settle in the latter, under the issue which had been joined, the identical question which had been raised, but could not be tried in the justice's court for lack of power.

The provision would be made nearly, if not quite, meaningless by a construction which would exclude a trial in the circuit court of the question raised by the plaintiff under the issue, and on account of which alone a transfer became imperative. When the cause was removed by reason of the attitude of the plaintiff, and as a consequence of his putting the title in question on his side, it stood in the circuit court, subject to the same rules of proof and disproof as though it had been originally commenced there. Finlay was bound to make out his case by evidence, and Rawson was at liberty to give evidence in defense according to the nature of the issue. It was therefore incumbent upon Finlay to show either an actual possession, or, if the premises were vacant, a legal title with the right of immediate possession, or other facts showing constructive possession; and these facts Rawson was at liberty to controvert by evidence in denial, or by evidence of his own possession, or, if the premises were vacant, by evidence of title and right of possession in himself.

There are, indeed, numerous defenses which have been decided to amount to admissions of the acts of trespass imputed to the defendant and of the possession of the plaintiff, and this, according to the familiar rule of pleading, that all material allegations not denied are admitted; and in all cases within the reason of the rule, the defense would only be admissible when pleaded specially, or, according to our practice, when properly indicated by a special notice. But the plea of not guilty, which has never been considered

RAWSON v. FINLAY.

more comprehensive than our statutory general issue, is construed as a denial of all the material allegations in the declaration, and as sufficient to enable the defendant to contest all such allegations in evidence, and to put the plaintiff upon the proof of all or any of them, and under it a freehold or mere possessory right in the defendant may be given in evidence.-Gould's Plead., § 8, ch. 6, pt. 1; §§ 91, 92, 93, ch. 6, pt. 2; 2 Greenleaf's Ev., § 625; Cooley v. O'Connor, 12 Wall., 391, and authorities cited. See also Kinnie v. Owen, 1 Mich., 249; Young v. Stephens, 9 Mich., 500; Edwards v. Chandler, 14 Mich., 471.

I think the questions of title and possession were open to contest in the circuit court under the issue as it stood. The judgment should be reversed, with costs, and a new trial ordered.

The other Justices concurred.

Elisha Harrington v. Lauren P. Hilliard and another.

Taxes:

Real estate: Vendor: Vendee. Under our statutes, state, county and township taxes upon real estate become a lien upon the land from the first Monday in December of the year in which they are assessed and not before; and as between vendor and purchaser under a warranty deed, the obligation is upon the vendee to pay the taxes for the current year where the conveyance is prior to that date, and upon the vendor where it is subsequent. Real estate: Taxes: Charge upon the owner: Statute construed. The provisions of the statute (Comp. L. 1871, § 1006) making the taxes upon real estate a charge against the person owning the same, on the second Monday of May, of the year in which they are assessed, construed in connection with previous statutes in pari materia and the general nature of our system of imposing and collecting taxes, and held to have been intended only as a cumulative remedy on behalf of the state, and not to make the taxes a charge upon the person or the land prior to the first Monday in December, when, for the first time, they exist as taxes, and the opportunity is offered, or the duty arises, to pay them. This provision does not affect the question of the obligation to pay the taxes as between vendor and purchaser.