Beecher v. People. This, however, could not affect the rights of lessees of the premises, subsequently placing machinery in the buildings to enable them to carry on the chair manufacturing business. Crippen v. Morrison, 13 Mich. 23. In this case the lessees, after putting in the machinery, purchased the reversion subject to the mortgage. They thereby united the title. to the realty and fixtures in one and the same person. Upon the happening of this event the fixtures at once became subject to the terms of the mortgage, which by its terms had been made broad enough to cover them. As bearing upon this question see Cullwick v. Swindell, 3 L. R. Eq. 249; Frankland et al. v. Moulton, 5 Wis. 1, 6; Preston v. Briggs, 16 Vt. 124. The decree was correct and must be affirmed with costs. ALeys are not primarily designed as streets, but simply as a means of local convenience to a limited neighborhood, and a roof twelve or fifteen feet over and above an alley is not necessarily an obstruction. JONVICTION of obstructing an alley. The opinion states the CON facts. F. A. Baker, for plaintiff in certiorari. W. C. Maybury, city attorney, for defendant. Placing a roof timber above a space in which the public has vested rights is an interference with its easement, even though it does not interfere with ordinary travel. Rex v. Lord Grosvenor, 2 Stark. 448; Queen v. Betts, 16 Q. B. 1022; Rex v. Russell, 6 East, 427; Davis v. Mayor 14 N. Y. 524; Grove v. Fort Wayne, 45 Ind. 429. CAMPBELL, Ch. J. Beecher was complained of for "obstructing and encumbering" an alleged public alley in Detroit "with certain large Beecher v. People. timbers placed above and diagonally across said public space, at the height of fifteen feet or thereabouts above the ground level of said space." The facts found by the Recorder's Court show that Beecher owns the land on either side of this space, from Woodbridge street to Detroit river, and is roofing it over at a height of about fifteen feet. The strip of land in question is sixteen feet wide, and was originally a part of the bed of Detroit river. While in this condition of land covered with water, it was marked, in 1831, on a plat made by the city, which then owned the tract, in the same manner as alleys were generally marked. The space was used by private parties as a passage for water-logs to furnish water to the citizens, and the city pur chased these in 1834. In 1851 the owners of land adjoining on the east (now owned by Beecher) leased the end next to the river, and put in a box drain, at the expense of the city, to drain Woodbridge street and a block adjoining. The same owners, under a contract with the city, the terms of which are not found in full, filled up and planked this space as far as the end of their buildings. The finding concludes as follows: "This space was always considered and treated by the adjoining owners as belonging to the city; it was never assessed as private property; a public sewer was built through it about seven years since, and no objection was made to it by the adjoining owners. When Woodbridge street was paved, the city paid for the paving in front of this space, as being a public alley. The river front of this space was too narrow for large boats to land there and unload freight, but this was occasionally done by small sail boats and scows, and goods and baggage were conveyed from them over the slip without any charge." As to the question of obstruction, the court finds: "All the obstruction, if any, consists of two or three timbers, extending across said space from one side to the other, about twelve or fifteen feet from the ground." Upon this Beecher was adjudged guilty of the obstruction. The object of the power granted to the city to prevent obstructions to various easements of a public character, is not to settle the title, which cannot be tried by a municipal court under city ordi Horn v. People, 26 Mich. 221; Roberts v. Highway Com'rs of Cottrellville, 25 id. 23. nances. Neither can any such interference in a summary proceeding be had except where some way actually used has been interrupted in its user or enjoyment. A theoretical easement not actually used is not within the law. Tillman v. People, 12 Mich. 401; Jackson v. People, 9 id. 111. In the present case the land could not originally have been an alley, because it was covered by open water. Its uses since, appear to have been for the passage under its surface of drains and water pipes, and as a wharf, or an appendage to a wharf. Under the facts found, the use of it as an alley has been for the convenience of adjoining property, and not for any public right of way. In these respects it comes within the principles of Horn v. People and Tillman v. People above cited. It can make no difference that the city may possibly own the fee; neither can the city try as a violation of an ordinance an invasion of its private property. The finding, if otherwise correct, shows no obstruction. Assuming that alleys may under some circumstances involve public easements in the nature of ways, yet their primary purpose, even then, is not to be substitutes for streets, but to serve as means of accommodation to a limited neighborhood for chiefly local convenience, Nothing can be treated as a punishable obstruction that does not interfere with its accustomed uses. It cannot be said that covering it in by a roof is necessarily any obstruction whatever. There are many arcaded sidewalks which are a great convenience to foot passengers, and it can seldom happen that a roof twelve or fifteen feet high, can interfere seriously with any of the ordinary uses of an alley. In the present case the court did not find in fact that there was any obstruction, but decided it as a question of law- which it is not in most cases, if at all. The case of Regina v. Betts, 16 Q. B. 1022, is directly in point; see, also, Clark v. Lake St. Clair, etc., Ice Co., 24 Mich. 508. For these reasons the conviction must be quashed. MARSTON and GRAVES, JJ., concurred. COOLEY, J., did not sit. Covert v. Rogers. COVERT V. ROGERS. (38 Mich. 363.) Assignment for benefit of creditors —by corporation to insolvent stockholder. An insolvent corporation may make an assignment for the benefit of its creditors to one of its stockholders, who is insolvent, and who was the former treasurer, provided it is done in good faith; and evidence of the motives of the directors on that subject is admissible. TR ROVER by the assignee of the Hubbardston Lumber Company, for assigned property attached by defendants as creditors of that company. The opinion states the facts. The plaintiff had judgment below. Wells & Morse and Mitchel & Pratt, for plaintiffs in error. An assignment of the assets of a corporation for the benefit of its creditors to its business manager leaves the control of the property where it has been before, and seems to be meant to delay creditors. Cram v. Mitchel, 1 Sandf. Ch. 255; Currie v. Hart, 2 id. 356; Angell v. Rosenbury, 12 Mich. 253; Hays v. Doane, 11 N. J. Eq. 84. It is a fraud upon the rights of creditors to assign to a known insolvent. Connah v. Sedgwick, 1 Barb. 214; Reed v. Emery, 8 Paige, 418. Lemuel Clute and Blanchard & Bell, for defendant in error. MARSTON, J. It must be considered as settled by the clear and undoubted weight of authority, that an insolvent corporation has the right to make a general assignment of its property for the benefit of its creditors, unless prohibited by its charter or a statute of the State, nor can such an assignment be held void in this State because opposed to the policy of our statutes relating to proceed. ings in chancery against corporations, or providing for their voluntary dissolution. Town v. Bank of River Raisin, 2 Doug. 530; Burrill on Assignments, 602 et seq. [Omitting minor objections.] The validity of this assignment was further questioned for the reason that the assignee was a stockholder and former treasurer of Covert v. Rogers. the company and resigned such position for the express purpose of becoming assignee, and the further reason that he was insolvent. We are of opinion that neither of these grounds, nor both combined, would be sufficient to justify us in holding the assignment absolutely void. In Pope v. Brandon, 2 Stewart (Ala.), 401, it was held that the deed of assignment was not void because the trustee was president of the institution and executed the deed as a grantor. There is nothing incompatible in Rogers' position as a stockholder in the corporation and as an assignee for the benefit of creditors. It is his duty as assignee to proceed and dispose of the property for the benefit of the creditors. The stockholders and creditors are equally interested in having the property disposed of upon the best terms and for the largest amount of cash that can be obtained therefor; by so doing the indebtedness is extinguished or reduced to the benefit of the corporation, and perhaps may relieve the stockholders of their individual liability. Our statutes recognize the propriety of the appointment, as receiver of an insolvent corporation, of any of the directors, trustees or any other officers of the corporation. 2 Comp. L., § 6594. These objections might well be considered by the jury, and might in some cases have a decided influence upon the minds of the jurors in determining the validity and bona fides of the transaction. The court below entertaining this view, very properly and favorably to the defendants, submitted these questions to the jury. It may be manifestly proper in certain cases, owing to the peculiar nature of the business carried on, that the assignment should be made to a person conversant with such business rather than to a stranger, or one unfamiliar with it; that such a person would possess advantages and be likely to make more out of the property than a stranger, or one having no knowledge of such business, would appear reasonable. Nor does it follow, necessarily, that a person who is insolvent would thereby be legally disqualified from accepting the position of assignee; that fact might in no way affect his honesty, business qualifications or eminent fitness in all other respects for the position. As already said such facts were proper for consideration by the jury, but they would not per se render the assignment void. It is also alleged as error that the court permitted evidence of the good motives of the directors in making the assignment to be proven. Corporations act by and through officers, and it would seem clear that creditors might have shown by the directors that their motive |