spects, the case may be regarded as closely resembling many in which municipal liability has been judicially affirmed. In essentials it belongs to the class of cases where the injury is the result of negligence of municipal agents employed in public work for which the municipality is not at common law liable.

The judgment is reversed, with costs of both courts to defendant. No new trial will be granted.

Carpenter, C. J., and McAlvay, Grant, Blair, Montgomery, Hooker and Moore, JJ., concurred.

The Liability of Cities for the Negligence and misconduct of their officers and agents is discussed in the note to Goddard v. Harpswell, 30 Am. St. Rep. 376; Rhobidas v. Concord, 70 N. H. 90, 85 Am. St. Rep. 604; Williams v. Greenville, 130 N. C. 93, 89 Am. St. Rep. 860. If a city, in the exercise of its police power, employs a person to cut weeds in an alley, it is not answerable for his negligence in operating the mower, whereby a child is injured: McFadden v. Jewell, 119 Iowa, 321, 97 Am. St. Rep. 321.

FOURNIER v. CLUTTON.

[146 Mich. 298, 109 N. W. 425.]

DIVORCE-Assignment of Alimony.-Alimony granted in a suit for divorce is not assignable. (p. 639.)

DIVORCE-Assignment of Alimony-Tender-Waiver of Restoration of Consideration.-If before seeking by suit to set aside an assignment of a decree for alimony, the plaintiff undertakes to make a tender of the consideration received therefor, which the assignee refuses to accept, a more formal tender is excused. (p. 641.)

E. S. Grece, for the complainants.

Jeffries & Williams, for the defendant.

299 CARPENTER, C. J. Complainant Frances L. Fournier is the divorced wife of Charles A. Fitzsimmons. The other complainants are the children of Frances L. Fournier and Charles A. Fitzsimmons. Charles and Frances were divorced May 10, 1895. By this decree it was "Ordered and decreed that the defendant (Charles A. Fitzsimmons) pay to the complainant (Frances L. Fournier) the sum of one thonsand dollars together with the costs to be taxed in said cause, the same being in full of all rights, claims, and demands of

the said complainant upon the said defendant for permanent alimony. . . . . It is further ordered that the complainant have the care, custody, and education of the children, the issue of said marriage, until the further order of this court."

On the twenty-seventh day of May, 1897, complainant sold, assigned and transferred said decree to the first-named defendant for the sum of two hundred dollars. The object of this suit is to set aside said assignment on the ground that a decree for alimony is not assignable. The trial court dismissed said bill. Complainants appeal.

The briefs of counsel and my own research have enabled me to find but two cases touching the question of the assignability of decrees for alimony, viz., In re Robinson, L. R. 27 Ch. D. 160, and Kempster v. Evans, 81 Wis. 247, 51 N. W. 327, 15 L. R. A. 391. Each of these cases holds that such a decree is not assignable. In each of them the alimony assigned was an annuity not yet due. While the circumstance distinguishes these decisions from the case at bar, it cannot be said that the reasoning upon which they rest is altogether inapplicable to this case. The ground of the decision in Re Robinson, (L. R. 27 Ch. D. 160) is found in these words quoted from the opinion: "The very nature of alimony is inconsistent with its being capable of assignment. We are familiar with instances of allowances which are not alienable in the case of men, such as the half-pay of the officers in the army and navy, which are given them in order that they may maintain themselves in a sufficient position in life to enable them to be called out for future service if required. 300 Although alimony is not the same thing, it is governed by the same principle. Alimony is an allowance which, having regard to the means of the husband and wife, the court thinks right to be paid for maintenance from time to time, and the court may alter it or take it away whenever it pleases.'

In Kempster v. Evans, 81 Wis. 247, 51 N. W. 327, 15 L. R. A. 391, it is decided that a decree for alimony is not assignable, because it may be modified or annulled by the court which gave it.

I think our own decisions (see Brownson v. Roy, 133 Mich. 617, 95 N. W. 710, and cases there cited) will prevent our holding, as did the court in Kempster v. Evans, 81 Wis. 247, 51 N. W. 327, 15 L. R. A. 391, that a decree for alimony is not assignable, merely because it may be modified by the court which pronounced it. Can we follow the reasoning of the

The ground

court in Re Robinson, L. R. 27 Ch. D. 160? upon which the court in that case held that an award of alimony was not assignable is, as I understand it, this, viz., that the purpose for which the law gives alimony is to secure the maintenance of the wife. I think this ground is sound and that it is applicable to the case at bar. The reason why

a wife is denied the right to assign an award of alimony intended by the law for her maintenance is not stated, but it is obvious. It is that she may not, by the exercise of that right, frustrate the purpose of the law. That the principal object for which the law awards alimony is the maintenance of the wife, or of the wife and children, is clear. That the recognition of the wife's right to assign that alimony would tend to defeat this object may be easily shown. If the wife has the right to assign her alimony, she may assign it on such terms and conditions as she may make. She may, as in this case, assign a decree for one thousand dollars upon the receipt of two hundred dollars, and thus use it as a means of dissipating her husband's estate without any corresponding benefit to herself or to her children. It is not difficult to imagine instances in which the bulk of the husband's estate might thus be transferred to third persons-possibly to unworthy speculators-and the burden of maintaining 301 his wife and children imposed upon the public. It is apparent that the wife is not the only person interested in the proper application of money decreed as alimony. Her former husband, her children, and the public are also interested (see Ferguson v. Ferguson, 145 Mich. 290, 108 N. W. 682), and their interests would be in constant jeopardy if she could at pleasure assign such decrees. I conclude, therefore, that the law gave complainant Frances L. Fournier no authority to assign her decree for alimony.

I am not sure that Act No. 230 of the Public Acts of 1899, which makes awards for permanent alimony enforceable by contempt proceedings, has not some bearing upon the question under discussion. I think that act was passed upon the assumption that such awards were not assignable. If it were not passed upon that assumption, we must impute to the legislature the intention of giving to the assignees of such awards the right to enforce them by contempt proceedings. I find it difficult to believe that the legislature had any such intention.

I do not doubt that the suggestion will occur to many who read this opinion that its effect will be injurious to the interests of the wife where she has a decree against a husband who has no present means of support, but who has such expectations that some speculator will buy her decree and advance money which will relieve her present necessities. To those who think this a legitimate criticism, we suggest that they compare the injury resulting in such instances with the benefits that will result in other instances both to the wife and to the public generally by the denial of her right to assign a decree for alimony. But the proper answer to the suggestion is that it is not a legitimate criticism of the opinion. It assumes that the opinion is based on the ground that it is beneficial to wives generally to be denied the right to assign their alimony. While we believe it is so beneficial, this opinion is not based on that ground. It is based on the ground, as heretofore stated, that the existence of the right to assign frustrates the 302 purpose of the law that alimony shall be used for the maintenance of the wife, or of the wife and children.

It is urged that complainant's bill was properly dismissed on the ground that she was guilty of laches. We think this contention is answered by the case of Ripley v. Selington, 88 Mich. 177, 50 N. W. 143.

It is also claimed that complainant did not tender defendant the two hundred dollars she obtained from him, and that for that reason the decree of the lower court should be affirmed. We are convinced by the testimony that before this bill was filed complainant undertook to make a tender, and that she did not do so because defendant said he would not accept it. This, in our judgment, excused a more formal tender: See Lacy v. Wilson, 24 Mich. 479.

The decree of the circuit court should be reversed, and a decree entered in this court in accordance with the prayer of complainant's bill. Complainant is entitled to costs of both

courts.

McAlvay, Grant, Blair and Moore, JJ., concurred.

Alimony Granted to a Wife in a suit for a divorce is a personal right which is not susceptible of assignment: Lynde v. Lynde, 64 N. J. Eq. 736, 97 Am. St. Rep. 692.

Am. St. Rep., Vol. 117-41

BOYNE CITY, GAYLORD AND ALPENA RAILROAD COMPANY v. ANDERSON.

[146 Mich. 328, 109 N. W. 429.]

EMINENT DOMAIN-Evidence.-If, in proceedings to condemn land for railroad purposes, the land owner expressly disclaims the right to recover damages for increased fire risk, evidence concerning the insurance rate on his buildings is inadmissible. (p. 643.)

EVIDENCE-Phonographs as.-In proceedings to condemn land for railroad purposes, the land owner, after laying the proper foundation, is entitled to operate a phonograph in the presence of the jury to reproduce sounds claimed to have been made by the operation of trains in proximity to his hotel and other premises. (p. 643.)

EMINENT DOMAIN-Appeal-Rulings on Evidence.-Questions raised over the introduction of evidence in condemnation proceedings cannot ordinarily be considered on appeal, though evidence clearly improper might justify a reversal if it appear that it caused a substantial error on the part of the jury. (p. 644.)

EMINENT DOMAIN-Review of Award of Damages.-The amount of damages awarded in condemnation proceedings will not be reviewed by the supreme court on appeal, further than to ascertain that the finding is supported by the evidence. (p. 644.)

EMINENT DOMAIN-Attorney's Fees-Review. The lower court is the final arbiter as to the amount of attorney's fees to be awarded in condemnation proceedings, and that question cannot be reviewed on appeal. (pp. 644, 645.)

J. M. Harris, L. F. Knowles and J. H. Campbell, for the appellant.

H. A. Jersey and G. E. Nichols, for the appellee.

329 BLAIR, J. Petitioner commenced condemnation proceedings in July, 1905, to determine the necessity for laying its tracks upon and along Ray street in Boyne City, opposite respondent's hotel property, and for an appraisement of the damages in consequence thereof. The jury found that it was necessary for petitioner to occupy the street and appraised respondent's damage at the sum of fifteen hundred dollars. The circuit judge confirmed the report of the jury, and petitioner has appealed to this court, specifying the following objections:

"1. Rejection of evidence showing insurance rates on respondent's buildings and upon other buildings in Boyne City. "2. Admitting in evidence the use of the phonograph.

"3. Admitting evidence to show that the petitioner could build its railroad upon another and different line in 330 the