purposes. Of course, it cannot be done all at once with voluntary subscriptions. The matter of rest rooms and toilet rooms has been talked over several times, and, as to toilet rooms, that matter was discussed at one of our last meetings, and generally agreed upon that, it being an open building, it would be impractical to put in toilets with the water flushed, but it was talked of putting in a dry closet, which can be made very sanitary and put in very cheaply. It is the intention to continue this work of which the building of this pavilion is but the beginning and the installation of toilet rooms and rest rooms for the accommodation of the people who are obliged to assemble there at this point, and for whose benefit this waiting room was constructed."

There was testimony as follows:

"The object of the association is to improve the conditions in the north end of the city wherever we have an opportunity. I think it was at least partly due to our influence that Elmwood street bridge was placed back in place, and the road fixed in condition and the bridge over. We built the pavilion in Palmer Park, cleared the ground, built a rustic bridge, and cinder path. The purpose of having that building on the corner of the park was as a pavilion for the park and the other as a waiting room.'

On examination by Mr. Wellman, witness stated:

"I have visited parks in other cities. In any parks that I have ever seen, there has been a waiting room of some sort to accommodate the people, for people coming and going. That is a recognized park purpose. * * * The majority of the land in that park is low. There is not much difference between the quantities of high land on the south side and that on the north side of the ravine. In connection with the use of the pavilion during the winter months, we have made arrangements to block McNeil creek up and flood that low ground and make a skating rink for the people, and to take the question up of opening up that pavilion and put in a heating system so that people may go in there and hang up their clothing and put on their skates, etc. That is part of the program

planned by the association for this winter. I think Mr. Draper has the written resolution to that effect. "The resolution was received in evidence."

In Words and Phrases there are several definitions of the words "park" and "public park." One of them reads:

“A park is variously defined to be a pleasure ground in or near a city, set apart for the recreation of the public; a piece of ground inclosed for the purposes of pleasure, exercise, amusement or ornament; a place for the resort of the public for recreation, air and light; a place open for every one. State, ex rel. Attorney General, v. Schweickardt, 109 Mo. 496, 19 S. W. 47, 51 (citing Perrin v. New York Cent. R. Co., 36 N. Y. 120; Price v. Inhabitants of City of Plainfield, 40 N. J. Law [11 Vroom] 613)."

Another definition is:

"In its common and ordinary significance, a public park is an open or inclosed tract of land and adapted for, set apart, maintained at public expense, and devoted to the purposes of pleasure, recreation, ornament, light and air for the inhabitants of the town near or in which it is located." 3 McQuillin, Mun. Corp., pp. 2533, 2534, and cases cited in footnote.

In 28 Cyc. p. 936, it is said:

"Property constituting parks, public squares and commons may, in the absence of express restriction, be used in such manner as will promote the public interest and is not inconsistent with the purpose for which it was intended."

Again:

"A park may be devoted to any use which tends to promote popular enjoyment and recreation, although primarily involving the ideas of open air and space, occupation in part by monuments, statues, museums, galleries of art, free public libraries and other agencies contributing to the aesthetic enjoyment of the people, is not a perversion of the lands from park purposes. These are maintained for the use, convenience and

recreation of persons resorting to and using public parks." 3 Dillon, Mun. Corp. pp. 1749, 1750.

*

*

"Some of the powers of control and regulations for their use held to be reasonable and valid are: Power to lay out pleasure drives around the borders of a public square, authority to erect a building in a park for public purposes, and if a building called a casino so erected is adapted to a public use, the court will not assume that is to be used for private purposes; to erect a dwelling house on park property to be used by the park superintendent and his family as a residence and also for an office by such superintendent and his associates." 3 McQuillin, on Corp. p. 2541.

We think it clear that the use made of the building is a public use, and that such use is not foreign to that of a public park.

The decree is affirmed, with costs.

BROOKE, C. J., and PERSON, KUHN, STONE, OSTRANDER, BIRD, and STEERE, JJ., concurred.

SPROAT v. HALL.

1. LIMITATION OF ACTIONS-NONRESIDENCE-ABSENCE FROM STATE. Plaintiff brought assumpsit on an obligation dated more than ten years previous, and which defendants claimed was barred by the statute of limitations. They were actors whose location frequently changed and who were out of the State, traveling about the country during most of the ten-year period. It was, however, defendants' claim that they maintained their domicile in Detroit, Michigan, during the whole time and that they often returned to their said place of residence, and had no other domicile. Under 3 Comp. Laws, § 9728 (5 How. Stat. [2d Ed.] § 14135),

held, that neither absence from nor residence outside the State would suspend the running of the statute, but that both conditions must concur, and the question of defendants' domicile should have been submitted to the jury, upon proofs having a tendency to sustain the claim of either party.

2. SAME-HOME-TRAVELING.

The profession of an actor who travels from State to State does not preclude him from having a home at a particular place.

3. SAME TRIAL-REFUSING REQUESTS.

Where the trial court refused to charge as requested that the effect of defendants' alleged residence in Michigan during most of the time during which plaintiff claimed he was outside the State would bar the suit, and where the court stated his opinion to be that defendant must have been within the State a consecutive period of six years, after the demand accrued, and the question might perhaps be one of fact, counsel for the defense concurring but saying that the question of residence in Michigan was as he understood it eliminated by the court, he could not be held to have deterred the trial judge from submitting to the jury the issue as to his residence in the State, and, particularly, in view of requests to charge presented by said attorney bearing upon that issue.

Error to Kent; Brown, J. Submitted October 5, 1915. (Docket No. 1.) Decided December 21, 1915.

Assumpsit in justice's court by William J. Sproat against Lou Hall and wife, for an indebtedness evidenced by a writing. Judgment for plaintiff; defendants appealing to the circuit court. Judgment for plaintiff. Defendant Lou Hall brings error. Reversed.

Rodgers & Rodgers, for appellant.

Hall, Gillard & Temple, for appellee.

A verdict for plaintiff was directed by the court, and judgment was entered on the verdict; plaintiff having submitted to nonsuit as to defendant Hilda

Thomas. The suit was begun January 24, 1914, upon a cause of action which, as appears by the pleadings and proofs, accrued to plaintiff January 28, 1903. Defendants gave notice of their reliance upon the statute of limitations. There was written evidence of the debt relied upon by plaintiff, in the form of an I. O. U., which bore the date last above, and which was executed in Chicago, Ill., by defendant Hall. Plaintiff was and is a resident of Grand Rapids, Mich. Defendants, when the demand accrued, were nonresidents of Michigan, and, as has been stated, were absent from the State. They are husband and wife, by profession actors, and during all of the period in question, with rests and vacations, traveled about the country. From the year 1903 until 1910, except perhaps one or two years, they were in Michigan, and in Grand Rapids each year, playing engagements there, to the knowledge of plaintiff, who at some of the times met them, and who could during any of those years have there obtained personal service of process upon them. Defendant Hall offered testimony tending to prove that in the winter of 1904, or the spring of 1905, he established a residence in the city of Detroit, Mich., which for more than nine years he maintained, and had no other residence; that, when occasion permitted, he and his wife returned to and lived in Detroit, where his clothing and such household goods as they possessed were stored and, when they were there, were used. That the debt accrued at the time hereinbefore stated, that no part of it had been paid, that at that time defendants were absent from and resided out of the State, and that defendant had not been within the State, either a period of six years or different periods amounting to six years, since January 28, 1903, were admitted facts.

The trial court instructed the jury, in part, as follows: