CASE V. BURT. from the first, which had been superseded by the new arrangement. The court below adopted this view and gave judg ment for the defendants. The case was brought into this court for review upon the facts and upon the law, and the court found that there had been no default on the part of the plaintiff, and that no new contract had ever been made. As the case rested mainly upon questions of fact, it has not been thought desirable to report the opinion at length. But one ground whereon defendants relied as proof of a default involved a question of law, and so much of the decision as bears upon this question is therefore appended. Among other things, it was provided by the contract that upon each shipment of lumber defendants were entitled to draw upon plaintiff who was to accept their paper on time not exceeding ten days' sight. Plaintiff resided at Norwalk, Ohio, and the drafts were usually drawn and negotiated at East Saginaw (where defendants did business), to be presented and paid at Norwalk. Lumber having risen in price, and defendants being anxious (as found by the court) to get rid of the contract, determined to manage, if possible, so as to get plaintiff into a default, and procured a protest of a draft, which they thereupon set up, (among other pretexts decided by the court to have been unfounded), as an excuse for declaring the contract forfeited. The questions of law arising out of this transaction are the only ones presented in the case, and so much of the opinion as explains them is subjoined. G. V. N. Lothrop and W. L. Webber, for plaintiff. CAMPBELL J. On the second of November a vessel called the Jesse took on board a cargo of lumber for plaintiff. On the 4th Gilbert, the managing man of the defendants, presented CASE v. BURT. a draft to plaintiff for this cargo, and plaintiff told him to forward it to Norwalk, as he had done the rest. Gilbert said "very well" and deposited it in bank. Herman Gelpeke, who was President of the company, and also an active manager, subsequently, on the same day, directed Gilbert to get the draft from the bank, for the purpose of getting a protest on it. Gilbert did so and procured John J. Wheeler, a notary, to present it to plaintiff that evening after business hours at his hotel. Plaintiff informed the notary that he was not certain as to the correctness of the amount of the draft, and desired to examine the shipping bills, which he could do in the morning, and would then accept the bill if correct. The notary agreed to call again in the morning for that purpose. But that evening Gilbert and Gelpeke went to him, and induced him to protest the draft for non-acceptance, and return it to them. The next day plaintiff was notified that no more lumber would be delivered to him on the contract, and although he made application, none was delivered to him until after November 16th, when defendants allege a new agreement was made, which plaintiff denies. Defendants alleged to plaintiff as a reason for refusal, the non-acceptance of this draft, and the alleged accumulation of lumber on the docks previously, beyond the amount fixed by the contract. It appears that plaintiff neither refused nor intended to refuse acceptance of the draft of November 4th. The notary left him, promising to present the paper the next morning, when plaintiff would have had an opportunity of learning whether the amount was correct. Where a drawee does not refuse, but merely requires time to examine his accounts he is entitled to twenty-four hours. Chitty on Bills, 306, 311. And here, the consent of the notary would preclude a protest until revoked by a new demand, even were there no such rule in existence. The defendants, therefore, in at once refusing to deliver more lumber, themselves broke their contract. THE PEOPLE . THE COUNTY OFFICERS OF ST. CLAIR. [Having examined the various questions of fact, and estimated the damages upon the evidence at $14,888.44, the opinion concludes as follows.] The judgment below must be reversed, and a new judgment entered in this court in favor of plaintiff against defendants for this amount of damages, with costs of both courts. The other Justices concurred. The People ex rel. Anson E. Chadwick v. County Officers of St. Clair. Board of Supervisors: Removal of County Seat: Delegation of authority: Where the Board of Supervisors, by a vote of two-thirds, resolved that the county seat of St. Clair should be removed to Port Huron, provided "suitable guarantees" should be given within ninety days for the erection of county buildings free of cost to the county, but submitted to the popular vote the simple resolution of removal, without including the proviso, that submission was held void, as the statute contemplates that the people and the Supervisors shall vote on precisely the same questions.-L. 1863, p. 30. No subsequent action by less than a two-thirds vote could lawfully modify the first resolution, and accordingly a majority vote referring it to a committee to examine and approve the proposed security, and an approval by such committee before election, could not make the original resolution cease to be conditional. The Board of Supervisors cannot delegate such powers as the law requires to be submitted to their corporate discretion and judgment. Heard November 9th. Decided November 10th. Appeal in Chancery, from St. Clair Circuit. The bill in this cause was filed to test the legality of certain proceedings for the removal of the county seat from St. Clair to Port Huron, and praying for an injunction. The Board of Supervisors of St. Clair County, on the 13th day of October, 1865, passed a resolution providing for the removal of the county seat from St. Clair to Port Huron, subject to the following proviso, to wit: 142 THE PEOPLE v. COUNTY OFFICERS OF ST. CLAIR. that "suitable guarantees should be given for the erection of the necessary buildings for county purposes, free of cost to the county, and that said guarantees should be given within ninety days from the date of this resolution." That on the following day, said board by resolution directed that the question of said removal be submitted to the qualified electors of said county, in the manner provided by law, and which was done. That said board then appointed five of their number as a committee to examine, and, if found satisfactory, to approve the bond required to be given on account of the removal of said county seat. That no further or other action was had or taken by said Board of Supervisors on the subject of said removal, and no provision was made with respect to the guarantees required by the powers of the first named resolution, relative to the nature or sufficiency of such guarantee, or the receipt or approval of the same, if any should be offered, except the resolution last above set forth; but that subsequently a bond was deposited in the clerk's office of said county, with an endorsement of approval by said persons named in said committee. That the question of said removal, but not the proviso, having been voted upon by the electors of said county, the board met, and by resolution declared that the county seat be removed from St. Clair to Port Huron, with the records, property, etc. The bill was demurred to, the demurrer sustained, and the bill dismissed. A. E. Chadwick for complainant. (No brief was furnished the reporter.) Mitchell & Farrand for defendants. 1. The Board of Supervisors have power to desig nate a place to which a county seat shall be removed, THE PEOPLE v. COUNTY OFFICERS OF ST. CLAIR. whenever such removal is proposed by a two-thirds vote of all the members elect, and after a majority of the electors of such county shall have voted in favor of the proposed location, they also have the power to make and establish such county seat at such place. place. Comp. L. § 352; Sess. Laws of 1863, p. 30. In this case a removal was proposed, and a twothirds majority of the members elect designated Port Huron as the place, but with a proviso that suitable guarantees should be given for the erection of the necessary buildings free of cost to the county, and that such guarantees should be given within ninety days. The only question raised by the bill of any importance or seriousness, is, whether the Board of Supervisors had the authority to pass such a resolution; whether the proviso makes it something that they were not authorized to pass. The board had expended all their authority when they by resolution designated the place. The next thing to be done is to obtain a vote by the electors, and the resolution of designation is necessarily a conditional one, that needs confirmation by a vote of the people. The proviso must be regarded as applicable to the removal, or designed so to be after the submission to the electors; and there is no way in which it could become operative until that time, and whether they could make a proviso that would hinder its being removed after such designation and vote, is an objection that can scarcely be made, especially as the proviso has been complied with. To remove the county seat needs a proposal, a resolution of removal passed by two-thirds, and a vote of a majority of the electors, and then the removal. These things have taken place in the only order they could, and all is accomplished except the removal; a large majority having voted for the removal. If the proviso would render nugatory the resolution, |