in the charter of the city of Ironwood to indicate that the Legislature understood that it was departing from this policy, or that it was conferring authority to buy public property subject to a mortgage lien of a quarter of a million of dollars. Did the Legislature intend to authorize the city to purchase a large and valuable plant subject to such an indebtedness, secured by a mortgage which might be foreclosed, and all the property taken from it by the decree of the court? He who invokes such a power must be able to point to the clear and unmistakable language of the statute conferring it. Municipal corporations possess no such power by implication. Is it not clear that the Legislature, by this act, authorized, not the purchase of an equity of redemption, but the purchase of all the property, real or personal, of these private companies? In the case of Mayor v. Gill, 31 Md. 375, the mayor and council sought to avoid a similar restriction in the charter of Baltimore by pledging certain railroad stocks, with the agreement that the pledgee should look, for the repayment of the money, exclusively to the stock pledged, and that in no event was the city to be liable or responsible for the return or payment of any part thereof, even though the stock pledged should prove insufficient. It was held that the restrictive provision of the charter could not be thus evaded. See, also, the authorities there cited. In Litchfield v. Ballou, 114 U. S. 190, the complainant sought to recover of the city of Litchfield moneys which it had realized upon void bonds, upon the ground that the city had received the benefit of the money. The constitution of the state of Illinois provided that no county, city, etc., should be allowed to become indebted in any manner for an indebtedness exceeding 5 per cent. on the value of the taxable property therein. While the facts of that case are not similar to those in this, yet the following language seems applicable: "It [the city] shall not become indebted; shall not incur any pecuniary liability. It shall not do this in any manner, neither by bonds, nor notes, nor by express or implied promises. Nor shall it be done for any purpose, no matter how urgent, how useful, how unanimous the wish. There stands the existing indebtedness to a given amount in relation to the sources of payment as an impassable obstacle to the creation of any further debt, in any manner or for any purpose whatever. If this prohibition is worth anything, it is as effectual against the implied as the express promise, and is as binding in a court of chancery as a court of law." See, also, Appeal of City of Erie, 91 Penn. St. 398. Obviously, the city of Ironwood will have no way to protect the property thus purchased except by payment of the lien thereon. It is immaterial whether or not the water-works companies are dissolved by the arrangement, or that they cannot transfer their corporate existence, under the authority of Railroad Co. v. Railroad Commissioners, 112 U. S. 609. Their continuance as corporations will be of no benefit to the bondholders, as it does not appear that there is any personal liability on the part of the stockholders. All their tangible property or the equity of redemption therein is transferred, assigned, and sold under this agreement. It is all covered by this mortgage. The city must pay the mortgage, or lose all the benefits to be derived from the purchase. It is expected and understood that it will pay it and the interest on it. Such was the evident intention of all parties. We therefore have reached the following conclusions: 1. The charter does not authorize the purchase of this property subject to the mortgage. 2. Municipal corporations cannot avoid restrictions upon the amount of indebtedness they may incur by buying property for public purposes subject to liens. Other important questions are raised in the case, which we need not discuss or determine, since this disposes of the case. The judgment of the circuit court must be reversed, and the writ of mandamus denied. The other Justices concurred. 99 461 105 331 SAMUEL KRAUSE, ADMINISTRATOR, ETC., V. THE EQUITABLE Life insurance-Evidence—Matters within knowledge of decedent 1. An insurance solicitor who has contracted with the general agent of a life insurance company to devote his entire time to the work of procuring applications for insurance, which, with the advance premiums, he is to forward to the agent or the company, and who is to receive as his compensation a brokerage on the premiums of such risks as, in the opinion of the president of the company, he has been instrumental in securing, is disqualified, under 3 How. Stat. § 7545, from testifying in behalf of the company, in a suit brought to recover insurance so solicited, to matters which, if true, must have been equally within the knowledge of the assured.1 'As bearing upon the construction of that portion of 3 How. Stat. 7545, which provides that, when any suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person against a corporation or its assigns, no person who is or has been an officer or agent of any such corporation shall be allowed to testify at all in relation to matters which, if true, must have been equally within the knowledge of such deceased person, see: Singer Manufacturing Co. v. Benjamin, 55 Mich. 330, 332, holding that, in replevin by a corporation for property held by the administrator of a deceased agent, a former agent of the corporation is disqualified from testifying in its behalf to negotiations had by him with the deceased, in behalf of the common employer, relating to the property in dispute. For cases bearing upon the construction of that portion of 3 How. Stat. § 7545, which provides that, when any suit or proceeding is prosecuted or defended by any corporation, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify at all in relation to matters which, if true, must have been equally within the knowledge of a deceased officer 2. Where the general agent of an insurance company, acting for himself, advances to the company the first annual premium, and accepts the note of the assured for the amount as his own, the condition of the policy requiring the premium to be actually paid before the company shall be liable is sufficiently complied with, and the company cannot cancel the policy without notifying the assured, and returning the unearned premium; citing Insurance Co. v. Curtis, 32 Mich. 402. 3. It is held, upon the facts as stated in the opinion, that plaintiff's right to recover upon the original policy issued to the decedent, and claimed to have been delivered to the defendant for the purpose of making the premiums payable quarterly, instead of annually, should have been submitted to the jury. Error to Wayne. (Hosmer, J.) Submitted on briefs February 14, 1894. Decided March 27, 1894. Assumpsit. Plaintiff brings error. Reversed. The facts are stated in the opinion. or agent of the corporation, and not within the knowledge of any surviving officer or agent thereof, see: 1. Rayburn v. Lumber Co., 57 Mich. 273, 275, holding that in a suit against a lumber company to recover for handling logs, in which the corporation defendant seeks to set off rent due on a lease assigned to it by a firm to whose interests it succeeded, the plaintiff cannot testify to the admissions and statements of a deceased officer of the corporation. 2. Lyttle v. Railway Co., 84 Mich. 289, holding that the statute does not apply to the testimony of the plaintiff in a negligence case against a railroad company to an interview with the defendant's yard-master, since deceased, in the presence of the master of the round-house, who survives him. 3. Baumann v. Salt & Lumber Co., 94 Mich. 363, 365, holding that the statute disqualifies a claimant against the estate of an insolvent corporation for money loaned on the credit of its president, since deceased, and claimed to have been received by the corporation, from testifying to a conversation with the president tending to establish the claim. For cases bearing upon the question of the waiver of the provisions of the statute, see Bank v. Butler Estate, 98 Mich. 381, and note; and see Kimball v. Kimball, 16 Mich. 211, 215, holding that the word "equally," as employed in the statute, does not relate to the degree of knowledge possessed by the parties, but is used in the sense of "alike," and precludes the party's evidence where the facts to which he is called were known to both; and Brennan v. Railroad Co., 93 Mich. 156, holding that the statute, in so far as it refers to officers or agents of a corporation, includes only those who are authorized, in the matter with reference to which the testimony is given, to act for the corporation. Edward A. Gott (Alfred Russell, of counsel), for appellant. John Atkinson, for defendant. MCGRATH, C. J. Plaintiff, as administrator of the estate of Benjamin S. Krause, sues upon a policy of insurance issued September 12, 1889. Plaintiff's evidence tended to show that the policy was actually issued; that defendant's solicitor accepted the assured's note at 60 days for the amount of the premium, and receipted for such premium; that the note so accepted was turned over to the general agent of the company, who held it, and paid the full premium to the company; that the note was not paid at maturity; that the assured. then requested the general agent to make the premium payable quarterly, instead of annually, and delivered the policy to such agent for the purpose of the change; that on March 6, 1890, defendant's general agent wrote to a brother of the assured, who was then acting for the assured, as follows: "Your favor of the 5th received. Your demand for the policy, if the full annual premium is paid, is reasonable and right. There has been a misunderstanding in regard to this matter. Will explain briefly. Your brother applied. for a policy with annual payments. The policy was issued and delivered. I paid the full premium to the company, and the agent his commissions, accepting your brother's note. He was unable to pay the full premium, and requested policy changed to quarterly premiums, and promised he would pay the quarterly premiums as they matured. The policy has been at this office ever since, uncalled for. The policy forfeited after his refusal to pay the second quarter. The company is ready to reinstate the policy if health certificate is furnished. Until that is done, we cannot deliver the renewal. The policy is of no value until the second quarterly premium is accepted by the company. As the matter now stands, if your brother refuses to furnish health certificate, we can only demand |