until this is done by special enactment, I do not think it can be done under the power now conferred by the general authority to grade, make, repair, and improve streets. It follows that the city authorities had no right to erect the bridge in the street in question, so as to injure plaintiff in the usual and ordinary enjoyment of his property, and the city is liable to him for the injury for which he has complained in damages.

The testimony which was admitted, relative to the injury by the flow of water upon plaintiff's premises, was not injurious to defendant under the charge of the court, which confined the jury to the sole question of the depreciation caused by the obstruction of the street in front of plaintiff's property. Under the view I have advanced above, of the want of authority in the city to construct the bridge, the rejection of the testimony offered by defendant, above mentioned, was not erroneous. The judgment will be affirmed.

CAMPBELL, J., (concurring.) I agree in the result arrived at by my Brother CHAMPLIN. But I have no doubt the city may build bridges where necessary for a safe passage, subject always to the payment of damages when they injure private property, as was done here.

SHERWOOD, C. J., and MORSE and LONG, JJ., concurred.

HINES v. CITY OF CHARLOTTE.

(Supreme Court of Michigan. November 1, 1888.)

MUNICIPAL CORPORATIONS-LIABILITY-FIRE LIMITS-FAILURE TO ENFORCE ORDINANCE. In the absence of any contractual or statutory liability, a city which has by ordinance established fire limits is not responsible for loss caused by fire originating in a wooden building erected within such limits, in violation of such ordinance, though it had notice that the building was about to be erected, and took no steps to prevent it.

Error to circuit court, Eaton county; FRANK A. HOOKER, Judge. Action on the case, brought by Ermina L. Hines against the city of Charlotte. Defendant obtained judgment on demurrer to the declaration, and plaintiff brings error.

Foote & Shaull, for appellant. Huggett & Smith, for appellee.

LONG, J. This is an action on the case, brought in the circuit court for the county of Eaton. The plaintiff claims in her declaration that the defendant, the city of Charlotte, "on March 29, 1871, was duly authorized and empowered by its charter, said charter being an act of the legislature of the state of Michigan, approved March 29, 1871, among other things, by an action of the common council of said city, a majority of the members-elect concurring, to make all such by-laws and ordinances as it should deem necessary and proper to secure said city and the inhabitants thereof against injury by fire, and to prescribe fire limits within said city of Charlotte; and the said defendant, in pursuance of the power so granted by its charter as aforesaid, did on, to-wit, September 3, 1873, by its common council, a majority of the members-elect concurring, at a regular meeting of said common council, duly make and pass an ordinance entitled 'An ordinance prescribing fire limits on blocks 23 and 24 in the city of Charlotte, therein and thereby prohibiting the erection of any building without party or fire walls of brick or stone, and roof of metal, or slate, or composition, excepting only wooden buildings not more than eight feet square, and not to face upon any street, or less than thirty feet from the line thereof, within the limits in and by said ordinance prescribed; and placing adequate means in the hands of said city, and in the hands of its servants and officers, for the proper enforcement of the provisions thereof, and making it its absolute duty, through its servants and officers, to

enforce the provisions thereof; which said ordinance was duly amended on, to-wit, May 6, 1881, and again, on, to-wit, May 7, 1883, said ordinance was duly amended so as to include within its provisions blocks 18, 23, 24, 31, and 32, in the said city, which said ordinance, so amended as last aforesaid, contained all the provisions above recited, and also made it the absolute duty of the fire-warden of said city, and each and every member of the common council thereof, ex officio, in case any person should erect or place, or cause to be erected or placed, any building or parts of a building, contrary to the provisions of said ordinance, to notify said parties forthwith to remove the same, and to enforce all the provisions of said ordinance; and said ordinance further provided that no person should erect any building or part of a building on said blocks 18, 23, 24, 31, and 32, in said city, until he should have filed with the recorder of said city complete plans and specifications of said building or part of a building so proposed to be placed or erected, and until he had obtained from said city recorder a certificate in writing that the common council of said city had approved of said plans and specifications; and before and at the time of the passing of said ordinance by the common council of the said city of Charlotte, on, to-wit, September 3, 1873, aforesaid, and before and at the time of the amendments to said ordinance, as aforesaid, so as to include within its provisions and operation blocks 18, 23, 24, 31, and 32, aforesaid, in said city, said plaintiff owned and occupied as a store, workshop, and dwelling-house a certain building, lawfully constructed and built on lot 13 on block 32 in said city, of great value, to-wit, of the value of $1,600, at the time of the several grievances next mentioned on the part of the said defendant; and the said building so constructed by the said plaintiff on said lot 13 on said block 32 in said city at the time of the several grievances hereinafter next mentioned on the part of the said defendant, then and there being, did contain goods, chattels, tools, furniture, and personal property, then and there belonging to and being the property of the said plaintiff, of great value, towit, of the value of $2,000. Yet the said defendant, well knowing the premises, and while said ordinance and each and every provision thereof was of full force and effect in and over lot 17 and said lot 13, both being situated on said block 32, as well as all of said blocks aforesaid in said city, on, to-wit, April 28, 1884, did receive information, and had written notice, by and through its common council, assembled and being called together in its official capacity, that one Frank Ruggles, of said city, wrongfully intended and proposed the violation of the provisions of said ordinance, in this, to-wit: he proposed and suggested to said common council then and there that he intended and expected to violate said ordinance and the provisions thereof by erecting a wooden building on lot 17 on said block 32 in said city, without filing the plans and specifications thereof with the recorder of said city, in and by the provisions of said ordinance provided as aforesaid, and by the wrongful and illegal construction of said wooden building, which said building, so wrongfully and illegally proposed to be constructed by said Ruggles, being more than 8 feet square, with wooden party or fire walls, and roof of wood, on said lot 17 on said block 32 in said city, and contiguous to the said building of the said plaintiff on lot 13 of said block 32 in said city, as aforesaid. Yet the said defendant did wrongfully and negligently allow and permit the said Frank Ruggles to construct said wooden building, to be used as a workshop, on lot 17 on block 32 in said city, as aforesaid, without filing plans and specifications thereof with the recorder of said city, and without party or fire walls of brick or stone, or roof of metal or slate or composition, and did wrongfully and negligently allow said wooden building, so constructed in violation of said ordinance, to stand and remain unmolested; and the said wooden building, wrongfully constructed and maintained by and with the permission and consent of the said defendant, on, to-wit, the 17th day of October, 1885, and while said ordinance and each and every provision thereof was of full force

and virtue, did catch fire, and by reason of the material used in its construction, and being constructed with walls and roof of wood, as aforesaid, said building, so wrongfully constructed and maintained by and with the knowledge and consent of the said defendant, did communicate fire and flames to the said building of the said plaintiff, on lot 13 of said block 32 in said city, whereby it, together with the said goods, tools, furniture, and personal property of the said plaintiff, then and there so situated and being therein as aforesaid, were utterly and wholly consumed and destroyed, to the damage of the plaintiff," etc. A demurrer was interposed by the defendant, and the court below entered judgment in favor of the defendant. Plaintiff brings the case into this court by writ of error.

The only question arising upon the record is: Does the declaration state a cause of action upon which the plaintiff is entitled to recover? We think not, and that the circuit judge was correct in entering judgment for defendant. Unless there be a valid contract creating, or a statute declaring, the liability, a municipal corporation is not bound to provide for and secure a perfect execution of its by-laws, and it is not responsible in a civil action for the neglect of duty on the part of its officers in respect to their enforcement, though such neglect results in injuries to private persons, which would otherwise not have happened. The grievance alleged in the declaration is that the defendant, having power under its charter to pass ordinances fixing fire limits, and to fix and determine the character of the buildings within such limits, and defendant having by ordinance fixed the same, and determined the character of the buildings to be thereafter erected within such limits, its failure to enforce such ordinances resulted in the destruction of plaintiff's premises by fire. Legislative power, whether held by the law-making authority of the state or by municipal bodies, is, in its nature, governmental and discretionary, and as a general rule a right of action as for a tort will not arise from any exercise of discretion in respect to it, or from failure to exercise such discretion. In the case of Forsyth v. Atlanta, 45 Ga. 152, the city was held not liable for licensing the construction of a wooden building within its fire limits, from the erection of which, as the plaintiff averred, his own building took fire and was burned. Municipal officers are in no such sense municipal agents that their negligence is the neglect of the municipality. It is true, if the act which is done by a municipal corporation would be tortious if done by a natural person, the corporation is held liable for it to the same extent, and for the same reason, that the natural person would have been. Here the complaint is that the defendant neglected and refused to act after having full knowledge that Ruggles proposed to erect a wooden building within the fire limits fixed by the ordinances of the city. The rule is well established, however, not only in this state, but in most of the states, that simply as municipal corporations, apart from any contract theory, no public bodies can be made responsible for official neglect involving no active misfeasance. It is only where corporations have been guilty of some positive mischief produced by active misconduct that they have been held liable, and not from mere non-feasance, or for errors of judgment. Municipal corporations, under their charters and ordinances, do not become insurers of the property within their corporate limits from destruction by reason of the neglect or refusal of their officers and agents to enforce their ordinances. Under the facts stated in the declaration, clearly the plaintiff cannot recover. Village of St. Johns v. McFarlan, 33 Mich. 72. The judgment of the court below must be affirmed, with costs. The other justices concurred.

QUINNIN v. BROWN et al.

(Supreme Court of Michigan. November 1, 1888.)

MORTGAGES-FORECLOSURE-MARSHALING ASSETS.

One of two joint mortgagors of an $8,000 mortgage, who sells land to the mortgagee, and takes in payment an assignment of a $1,800 interest in the mortgagebond, is entitled, on foreclosure, to have his interest in the mortgage first satisfied. Appeals from circuit court, Shiawassee county, in chancery; NEWTON, Judge.

Bill brought by Mary E. Quinnin against Samuel J. Brown, Alexander Quinnin, Mary E. Wilson, IIenry C. Wilson, William F. Atkinson, and James J. Atkinson, to foreclose a mortgage owned, in separate interests, by herself and defendant Brown. From a decree ordering foreclosure, and directing that the claims of complainant and defendant Brown be paid pro rata, both complainant and defendant Brown appeal.

A. L. Chandler, (John D. Conley, of counsel,) for complainant, cited Cooper v. Ulmann, Walk. Ch. 251; Bryant v. Damon, 6 Gray, 564; Salzman v. His Creditor, 2 Rob. (La.) 241; Bank v. Bank, 9 Wend. 410; Van Rensselaer v. Stafford, 1 Hopk. Ch. 641; Barkdull v. Herwig, 30 La. Ann. 618; Wood v. Callaghan, 61 Mich. 413, 28 N. W. Rep. 162; Hanford v. Robertson, 47 Mich. 100, 10 N. W. Rep. 125.

Alex. D. Fowler, for defendant Brown.

SHERWOOD, C. J. The complainant, who is the wife of the defendant Alexander Quinnin, files her bill of complaint in this cause to foreclose a mortgage executed by herself and her husband, on the 14th day of January, 1886, to Samuel J. Brown, upon the Central Hotel property, at Corunna, in the county of Shiawassee, to secure the sum of $8,800; she having on the 6th day of September, 1886, received an assignment of a $4,800 interest therein from said Brown. The mortgage was given to secure a bond, which the complainant and her husband had signed. Defendant Brown is the owner of the balance of the mortgage not assigned to complainant by him. "The defendant Mary E. Wilson is a subsequent purchaser of the property, and who assumed the payment of the mortgage as part of the purchase price." The defendant Henry C. Wilson is an occupant of the mortgaged property, and husband of Mary E. Wilson. The Atkinsons are execution creditors of Henry C. Wilson, and claim under a levy upon the property mortgaged. Defendant Brown appeared in the cause, and answered complainant's bill. The Atkinsons appeared and made formal answer, claiming therein to be subsequent incumbrancers. The bill was taken as confessed by the other defendants. A bill of sale was given of the furniture in the hotel at the same time the mortgage was made, as additional security for the money secured by the mortgage, not exceeding $3,000. On the 1st day of January, 1887, some interest and $500 principal became due, and no part of which has been paid. On the 4th day of March, 1887, the whole amount of the mortgage was declared due by Mr. Brown, which might be done under the terms of the mortgage. The testimony tends to show the property cannot be sold in parcels. The bill was filed on the 6th day of April, 1887. In addition to the usual prayer of a bill in foreclosure cases, the complainant asks in this case that by reason of her marriage her signature to the bond be decreed a nullity, and she be released from all personal liability thereon. The complainant also asks that she be paid her $4,800 out of the proceeds of the sale of the mortgaged property, before any payment shall be made to the defendant Brown. It appears from the record that in November, 1885, defendant Alexander Quinnin bought by contract 39 acres of land, known as part of the Wilson farm, near Corunna, of defendant

Brown. Quinnin's interest in this land was $550. He also owned a lot in Detroit, worth $300. Mrs. Quinnin, the complainant, was the owner of a piece of land in Detroit, which was held by one Grant, under contract for its purchase. This parcel Mrs. Quinnin bought of Mrs. Brown, with the contract of Grant outstanding, and which called for the payment of $2,300 as the purchase price. Mrs. Quinnin's interest on January 14, 1886, was considered worth $1,850. She also owned besides a lot on Fourteenth avenue in Detroit, worth $950. She also had personal property worth $250. So that Mrs. Quinnin's separate estate held in her own right on the 14th of January, 1886, amounted to over $3,000. She also owned, with her husband, a mortgage on lands in Oakland county, for $950; her interest therein being joint with that of her husband. This mortgage was called the "La More Mortgage." The defendant Brown lived in Detroit, and was engaged in the real-estate business and agency. C. D. Smith owned the Central Hotel at Corunna, and had placed it in Brown's hands, to be sold at this time. About the 14th of January, after some weeks of negotiating, Brown succeeded in bringing about a trade. By the arrangement Brown was to buy the hotel property and its furniture for the sum of $13,500, and pay mainly for it in city property that Brown then had in Detroit. This was done. Then Brown sold the hotel and furniture to the Quinnins, who gave property therefor to the amount of $4,700, and were to give a mortgage for the remaining $8,800. The property the Quinnins let Brown have, which was taken by the latter for $4,700, was, first, Mrs. Quinnin's interest in the Grant contract, $1,850; second, her lot on Fourteenth street in Detroit, $950; and her personal property, $200. This was all Mrs. Quinnin's sole property. Mr. Quinnin furnished his lot in Detroit at $300, and his interest in the contract for the 23 acres of land, $550: and Mr. and Mrs. Quinnin put in also the La More mortgage, then claimed to be worth $850. The deed of the hotel property was made directly from Smith to the Quinnins,-to Alexander Quinnin and Mary E. Quinnin, his wife, or the survivor; but the bill of sale was given from Smith to Brown. Smith was paid by Brown, and the Quinnins had nothing to do with Smith. The bond and mortgage given by the Quinnins secured the payment of the said $8,800, and is signed by both of them; the mortgage containing the following clauses. "And when the sum of $3,000 shall have been paid on this mortgage, said Brown agrees to execute a bill of sale to said parties of the first part of all the furniture, effects, etc., contained and described in the bill of sale," that had on that day been given by Smith to Brown. Also that should any proceeding be taken to foreclose the mortgage, either in law or chancery, or in any other manner provided by law, the Quinnins should pay $100 as a reasonable solicitor or attorney fee therefor, in addition to all other legal ex

penses.

It is claimed by counsel for complainant that the bond was void as against Mrs. Quinnin; that by the means used, and the disposition made of her property, the laws for the protection of married women have been completely ignored, and that her separate property had gone beyond her control. In the view we take of the case, those questions do not necessarily arise, and will not therefore be considered.

The trade completed as above stated, the Quinnins went into the hotel, and commenced business. In April following, engineered by Mr. Brown, another arrangement was entered into regarding the mortgaged property, which resulted in the Quinnins selling the hotel and furniture to parties who were introduced by Mr. Brown into the business, and whose names were Wilson. Mrs. Wilson became the purchaser, at the sum of $14,600, in payment of a part of which she assumed the payment of the $8,800 mortgage. Of this consideration the Quinnins received the Wheeler farm, consisting of about 79 acres, subject to a mortgage of $3,500, which was deeded to Mr. Quinnin, and the La More mortgage was returned to him and his wife, by Mr. Brown dev.40N.w.no.4-22