CHADWICK V. BUTLER. The second was erroneous. It assumed that an agreement to deliver on notice given at a time agreed upon, was the same as an agreement to deliver at such indefinite time as should be reasonable under the circumstances. The third would have been proper enough had there been any evidence in the case to base it upon; but we find none. It was not shown that any purpose the plaintiffs might have had as to marketing or making use of the wool was communicated to defendant. The fourth was erroneous for the same reason as the first. If the contract was as defendant states it, notice to deliver was essential. The fifth was correct if the contract declared upon was found established by the evidence. The sixth was erroneous. The plaintiffs, if entitled to recover at all, were entitled to the value at the time when delivery should have been made; but on what theory defendant could have been held responsible for the price at any prior time, when defendant was in no default for failure to deliver, we are unable to perceive. A vendor cannot be supposed to undertake that the goods he sells shall not depreciate in value before they are called for. The plaintiffs seem to have claimed that they were entitled to recover the highest market value between the time of the purchase and the time of bringing suit, and they were allowed to give some evidence on that theory. This was clearly wrong in going back of any default on the part of defendant, as already shown. But had they confined their questions to the time between the demand and the commencement of suit, there is no general rule that would entitle them to the recovery they claimed. A party's right of recovery must be deemed fixed at some time, and he cannot wait for an indefinite period and speculate upon the changes in the market while taking upon himself none of the risks of decline. This would put him in a better position than if he had the property in possession; for then, if he would realize upon it, he must CHADWICK v. BUTLER. select a particular time for making sale, and accept the price at that time; while under the rule relied upon he may have the highest price for a series of years by simply postponing the bringing of suit. No general rule can do exact justice in all cases of failure to deliver property on demand to the party entitled, but a recovery which, at the time of the demand and refusal, would have enabled the party to purchase other property of the like kind and of equal value at the same place, is, in the absence of special circumstances, as nearly just as any the law can provide for.-Bates v. Stansell, 19 Mich., 91. The judgment must be reversed, with costs, and a new trial ordered. The other Justices concurred. Thaddeus H. Rowe v. Amelia J. Rowe. Certiorari: Motion to dismiss: Practice. The question whether a case is a proper one for the writ of certiorari is one that relates to the merits, and will not be entertained on a motion to dismiss the writ in advance of the hearing. Certiorari: Discretion. Where a writ of certiorari has been granted by a competent officer, upon a sufficient application, the supreme court will not review his discretion in granting it, on a motion to dismiss. Certiorari: Double application. Whether an application pending and undetermined, to a circuit judge of the county where the proceedings were taken, for a writ of certiorari to review proceedings before a circuit court commissioner on a writ of habeas corpus, would render a like application to a justice of the supreme court nugatory :- Quære? But where upon the showing it is clear that the commissioner had not in fact rendered his decision when the first application was made, the supreme court will not dismiss its writ. Custody of children: Discretion: Interested parties. In a controversy between parents for the custody of their children, the children are interested as deeply as the parents, and the court will not take any step within its discretion which might prejudice them, even in case of misconduct on the part of the contending parents. 28 МІСН. -45. court. ROWE v. ROWE. Circuit court commissioners: Judicial powers: Habeas corpus: Custody of children. Circuit court commissioners have no power under our constitution (Art. VI., §§ 1, 16) to adjudicate, under the writ of habeas corpus, upon the right to the custody of children; such a power properly pertains to courts, and cannot be conferred upon an officer to be exercised in a summary proceeding out of Statute construed: Habeas corpus: Circuit court commissioners: Chamber powers. Construing together the provisions of the constitution and the statute authorizing commissioners to issue the writ of habeas corpus, it is held that the statute must be understood as excepting from their jurisdiction all cases in which the relief sought is such as cannot, consistently with legal principles, be afforded by an order made by a judge at chambers. Heard October 31. Decided November 5. Certiorari to Rufus H. Grosvenor, circuit court commissioner of Kalamazooo county. May & Buck, for defendant in certiorari, moved to dismiss the writ. H. F. Severens, contra. PER CURIAM. A motion is made to dismiss the writ of certiorari on two grounds: first, because the case is not a proper one for that writ; and second, because it was improvidently granted. The first point relates to the merits, and should be considered when the case is argued, and not on this motion. The second is the only one proper to be discussed now; and the ground of objection is that the application for the allowance of the writ was made to a justice of this court and granted, while a similar application was pending and undetermined before the circuit judge of the county, where the proceedings removed by the writ were taken. Where a writ has been granted by a competent officer, upon a sufficient application, we could not review his discretion in granting it, and the only question must be whether the conduct of the party has been such as to preclude him from any right to retain his writ. We are not prepared to say that a double application would be so irreg ROWE v. ROWE. ular that the second must be regarded as nugatory. It must be treated in this court as a matter which would be addressed to our discretion, and the court would be bound to take such action as would work no injustice, and not to dismiss a writ granted by a competent person, unless the plaintiff has so acted as to justify such a measure. In the present case, therefore, we should, if we had doubts on the fact as to when the commissioner's judgment was rendered, regard the plaintiff as abundantly justified in making the second application, because there was at least a conflict upon the point, whether the commissioner had really made his decision when the first application was made. If he had not, then that proceeding was premature, and would have rendered the allowance of the writ irregular. We think the showing before us is conclusive that the judgment had not then been rendered, and that the application on which the writ was granted was the only one properly and lawfully made. The action of the plaintiff in such a dilemma was entirely proper, whatever might have been the ultimate determination of the disputed fact. It is proper to remark further, that in a case like the present, where the custody of children is involved, we should feel bound to look to them as interested quite as deeply as either of their contending parents, and should not be disposed, even in case of misconduct, to take any step within our discretion which might prejudice them. The motion is denied with costs. The case was afterwards heard upon the merits. Arthur Brown, and H. F. Severens, for plaintiff in certiorari, were stopped by the court. May & Buck, for defendant in certiorari. COOLEY, J. The principal question in this case concerns the power ROWE v. Rowe. of a circuit court commissioner on habeas corpus to adjudicate on the right to the custody of children as between the parents. The constitution vests "the judicial power" in one supreme court, in circuit courts, in probate courts, and in justices of the peace, but allows municipal courts to be established in cities.-Art. VI., § 1. It also declares that "The legislature may provide by law for the election of one or more persons in each organized county, who may be vested with judicial powers not exceeding those of a circuit judge at chambers."-Art. VI., § 16. It is under this last section that the power in question is supposed to be authorized. We have already, in several cases, had occasion to consider these sections of the constitution, and to pass upon powers assumed to be exercised under them. In Daniels v. People, 6 Mich., 381, it was held that circuit court commissioners might take bail in criminal cases, and in Edgarton v. Hinchman, 7 Mich., 352, their authority to dissolve attachments was sustained. But in neither of these proceedings does the officer render any final adjudication on the rights of parties, but his action is entirely collateral to the principal proceeding, and is one of those steps in the cause which may as properly be taken at chambers as in court. In Streeter v. Paton, 7 Mich., 341, the power of commissioners to try complaints for the recovery of possession of lands was sustained, mainly on the ground that it was exercised under statutes in force before the constitution was adopted, and which it was not believed were intended to be abrogated by it. On the other hand, in Waldby v. Callendar, 8 Mich., 430, approved in Case v. Dean, 16 Mich., 12, it was held incompetent to confer upon these officers the authority to adjudicate upon the validity of titles asserted in lands. The decision was placed distinctly upon the ground that this was a judicial power which only a court could properly exercise. |