titioner, and by another who was its vice president and managing director, to an assessor of the city of Boston, as to the value of that petitioner's real estate, rightly was excluded. It does not appear that these officers were authorized by the corporation to speak for it on that subject, or that such statements were within the scope of their official duty." Brackett v. Com. (1916) 223 Mass. 119, 111 N. E. 1036, Ann. Cas. 1918B, 863.

The owner's valuation for assessment has been admitted as a declaration or admission against interest. Shoemaker Co. v. Munsey (1911) 37 App. D. C. 95; Southern R. Co. v. Tharp (1898) 104 Ga. 560, 30 S. E. 795; Western & A. R. Co. v. Tate (1907) 129 Ga. 526, 59 S. E. 266; St. Louis, O. H. & C. R. Co. v. Fowler (1898) 142 Mo. 670, 44 S. W. 771.

In an action to fix the value of real property between landlord and tenant, the affidavit of value of the landlord's agent in listing the property for taxation some two years before was held admissible as a declaration against interest. Shoemaker Co. v. Munsey (D. C.) supra.

In an action for damages in firing timber by sparks, it was held that the return of a taxpayer, as contained in the tax receiver's digest, may be considered by the jury on the issue of the value of the property therein included, as an admission. Western & A. R. Co. v. Tate (Ga.) supra.

The value of land as set down in his tax list by a tenant in common is evidence in eminent domain proceedings against him, and also against his cotenant, when they had stipulated that they were cotenants and that one half of the damages was to be assessed to each. St. Louis, O. H. & C. R. Co. v. Fowler (Mo.) supra.

So, the assessed valuation of personal property based on the owner's sworn valuation is admissible as an admission; not, however, conclusive as to value. Daniels v. Fowler (1898) 123 N. C. 35, 31 S. E. 598.

The owner's valuation for assessment has also been admitted in contradiction of his testimony. Gayle v. Court of County Comrs. (1908) 155

Ala. 204, 46 So. 261; Southern R. Co. v. Tharp (1898) 104 Ga. 560, 30 S. E. 795; Indiana Union Traction Co. v. Benadum (1908) 42 Ind. App. 121, 83 N. E. 261; Louisville & N. R. Co. v. White Villa Club (1913) 155 Ky. 452, 159 S. W. 983 (obiter).

After the decision in Cincinnati, H. & I. R. Co. v. McDougal (1886) 108 Ind. 179, 8 N. E. 571, infra, III. b, the statute was changed (1891) so as to require the owner to state the value of his personal property for taxation, and such list was held admissible as contradicting the owner on the question of value. Indiana Union Traction Co. v. Benadum (1908) 42 Ind. App. 121, 83 N. E. 261, an action for injury to a racing mare while being loaded on defendant's car for shipment. The court points out that the above change in the statute was evidently overlooked by the court in German Mut. Ins. Co. v. Nieweddle (1894) 11 Ind. App. 624, 39 N. E. 534, where it was held that a personalproperty tax list sworn to by the owner is not admissible to contradict him as to the value of stock, in an action on a fire insurance policy on the stock.

In a condemnation proceeding the court said and held: "There is conflict upon affidavits filed as to what the omitted testimony in fact was; but, accepting the petitioner's version as entirely correct, it could, in no view of the case, have been material. Henry, one of the defendants, testified that he swore his property before the assessor at much less than he valued it before the commissioners. As to the estimate for taxation, unfortunately too common a course. but one which could have no weight in determining the value of the property in question, incompetent in fact for that purpose, though perhaps admissible to tend to contradict his testimony in chief; if any stress was given that, there should have been none, as the evidence was entirely irrelevant, basing as it does the claim for compensation mainly upon the fact of special injury to respondent's present business." Virginia & T. R. Co. v. Henry (1873) 8 Nev. 165.

b. Cases excluding the evidence. In some cases it has been held that the owner's valuation was not evidence of value. Burdick v. Valerius (1912) 172 Ill. App. 267; Bartlesville Interuban R. Co. v. Quaid (1915) 51 Okla. 166, L.R.A.1918A, 653, 151 Pac. 891. In an action for damaging an automobile, it was held not error to exclude a personal property tax schedule purporting to have been made out by the plaintiff. Burdick v. Valerius (Ill.) supra.

In Bartlesville Interurban R. Co. v. Quaid (Okla.) supra, it was held that "assessors' lists are not admissible as admissions against interest as to value. of property listed for assessment, where the issue as to value is raised in a civil action between the owner and parties other than the state." The court said: "The stress of the law is laid upon listing, and not on valuation, by the owner; and the fixing of the valuation is the duty of the assessor. It is the duty of the assessor to require the owner to make a statement to him of the value, but the assessor may not place the value on the lists at the amount stated by the owner; and it is often the common experience of the citizen that his opinion as to the value differs greatly from that of the assessor, but the opinion of the assessor in this particular prevails to the taxpayer's discomfort. Such lists are competent as a solemn declaration, under oath, as to whether certain property was listed, or was claimed by the taxpayer; but to admit said lists as an admission against the owner as to value of property listed would be to admit irrelevant evidence, for the reason that the statement when signed was made for the purpose of listing the property, and not for the purpose of fixing the value of the property."

And the owner's valuation, in rendering property for assessment, has been held not admissible as evidence of value where the law does not require him to value it. United States v. Goodloe (1920) 204 Ala. 484, 86 So. 546; San José & A. R. Co. v. Mayne (1890) 83 Cal. 566, 23 Pac. 522; Martin v. New York & N. E. R. Co. (1892) 62 Conn. 331, 25 Atl. 239; Cincinnati, 17 A.L.R.-12.

H. & I. R. Co. v. McDougall (1886) 108 Ind. 179, 8 N. E. 571. See also Wray v. Knoxville, L. F. & J. R. Co. (1904) 113 Tenn. 544, 82 S. W. 471.

A tax list is "not competent, either for or against the lister, as original, substantive evidence, to establish the value of a particular article of property for purposes other than taxation. This is especially so in a case where it is sought to arrive at the value of one article, by proving the value of others with which that in question was listed." Cincinnati, H. & I. R. Co. v. McDougall (1886) 108 Ind. 179, 8 N. E. 571.

In Putnam v. White (1920) Ala. App., 88 So. 355, an action for damages for setting fire whereby the plaintiff's barn, etc., was burned, the court said: "The evidence showed that the barn was burned on the 4th of March, 1918; that it, together with other buildings, was on a 60-acre tract of land owned by plaintiff. There was clearly no error in sustaining plaintiff's objection to the question on cross-examination, 'Whether he assessed the place for taxation for the year 1917, and for what sum.' This was not the proper way to prove the market value of the farm at the time it was burned, or at any other time." (The court does not say that the owner was not required to value the property for assessment, but it seems that he was not so required, as it was of the same year (1917) to which the decision in the Goodloe case related.)

IV. Complaints to assessing authorities.

That an owner said to the assessor that the appraised value was more. than the property was worth is admissible in eminent domain proceedings a year later as an admission against himself. Patch v. Boston (1888) 146 Mass. 52, 14 N. E. 770, 772.

See also Gossage v. Philadelphia, B. & W. R. Co. (1905) 101 Md. 698, 61 S. W. 692, supra, II. c.

So is a pencil memorandum of value, handed by the owner to an assessor, admissible in eminent domain proceedings. Manning v. Lowell (1899) 173 Mass. 100, 53 N. E. 160.

An unsworn statement of an owner made to the appeal tax court was held admissible in an eminent domain proceeding, in Baltimore V. Himmel (1919) 135 Md. 65, 107 Atl. 522.

V. Special statutes. Although the statute makes a tax assessment evidence of value, the court held it error to admit it where, in condemnation proceedings, a part of two lots was taken, saying: "Ordinarily, the assessment offered should be limited to the particular property involved in the proceeding; for, when two or more pieces are combined, there is no certain means of knowledge affording ground for a just and fair apportionment, unless the land is all of the same quality and appears to have been valued by the acre or the lot." Gauley & E. R. Co. v. Conley (1919) 84 W. Va. 489, 7 A.L.R. 157, 100 S. E. 290.

Returns made to the state tax commissioner by a corporation are not evidence of value in eminent domain proceedings, when the statute provides that such return "shall be open only to the inspection of the tax commissioner, his clerks, and assistants, and such other officers of the commonwealth as may have occasion to inspect it for the purpose of assessing or of collecting taxes." Brackett v. Com. (1916) 223 Mass. 119, 111 N. E. 1036, Ann. Cas. 1918B, 863.

In Williams v. Brown (1904) 137 Mich. 569, 100 N. W. 786, it was held that a person may not be asked on cross-examination what value he put on certain mill property in his tax list (he did not own the land), where the statute provided that no tax statement made by a taxpayer "shall be used for any other purpose except the making of an assessment for taxes as herein provided, or for enforcing the provisions of this act."

VI. Texas cases.

It was held in Boyer v. St. Louis, S. F. & T. R. Co. (1903) 97 Tex. 107, 76 S. W. 441, an action for damages for construction of a railroad, that it was error not to permit the owner to state that the valuation on his renditions

of property were put on by the assessor, and not by him, as their only effect was as evidence of an admission. The court said: "As presented, the valuations appeared to be either the acts of the plaintiffs, or those of the assessor acquiesced in by plaintiffs. They were therefore ad

missible."

An owner's valuation in a list for assessment is not evidence of value. Gulf, C. & S. F. R. Co. v. Abney (1888) 3 Tex. App. Civ. Cas. § 414 (condemnation proceeding); McLane v. Paschal (1889) 74 Tex. 20, 11 S. W. 837 (homestead); Ft. Worth & R. G. R. Co. v. Kell (1890) 4 Tex. App. Civ. Cas. 214, 16 S. W. 936 (condemnation proceeding); San Antonio v. Diaz (1901) Tex. Civ. App. 62 S. W. 549 (action for damages for contamination of water). Contra: Burton Lumber Co. v. Houston (1907) 45 Tex. Civ. App. 363, 101 S. W. 822; Hengy v. Missouri, K. & T. R. Co. (1908) Tex. Civ. App. - 109 S. W. 402; Gulf, C. & S. F. R. Co. v. Koch (1912) Tex. Civ. App. - 144 S. W.

1035.

In an action for damages to property by the construction of a tunnel and its approaches, the court said: "The proposition under this assignment is, in substance, that a tax rendition which purports only to give a correct list of property without any statement of value by the party rendering is inadmissible as against such party on the issue of the value of the property. The rendition was made by the general manager of appellant, and, while the valuation of the property is not sworn to by him, there is nothing on the face of the record of said rendition to indicate that the valuation was not made by him, or, if made by the assessor, that he did not acquiesce therein, and . . . it was admissible in evidence as an admission by plaintiff as to the value of the property at the time the rendition was made. Of course such admission was not binding on plaintiff, and could only be admitted as a circumstance tending to show the value of the property." Burton Lumber Co. v. Houston, supra.

The owner's valuation for assessment is admissible in condemnation proceedings as an admission. Hengy v. Missouri, K. & T. R. Co. supra.

In an action for damages for blocking ingress, etc., it was held that the owner's valuation for taxes was admissible as evidence of value and also as an admission against interest. Gulf, C. & S. F. R. Co. v. Koch, supra.

In Crystal City & U. R. Co. v. Isbell (1910) Tex. Civ. App. - 126 S. W. 47, it was held that such valuation, while no criterion of value in condemnation proceedings, is admissible as tending to contradict the owner's evidence.

In an action for damages by fire, it was held (obiter) that the owner, in

Affirmed.

Taking in a partner to a lease violates the covenant against assignment. Roe ex dem. Dingley v. Sales, 1 Maule & S. 297, 105 Eng. Reprint, 111; Emery v. Hill, 67 N. H. 330, 39 Atl. 266; Glendening v. Western U. Teleg. Co. 163 App. Div. 489, 148 N. Y. Supp. 552; Blessing v. Fetters, 40 Cal. App. 471, 181 Pac. 108; Re Georgalas Bros. 245 Fed. 129; 16 R. C. L. § 330.

If the contention of the defendant is sustained, that new partners to the lease may be taken in, there can be no

objection to the withdrawal of old ones. Yet even that is a conveyance of an interest in the lease. Logically viewed, it is a breach of the covenant against assignment.

Varley v. Coppard, L. R. 7 C. P. 505, 26 L. T. N. S. 882, 20 Week. Rep. 972; Langton v. Henson, 92 L. T. N. S. 805; Loveless v. Fitzgerald, 42 Can. S. C. 254, 2 B. R. C. 809, 17 Ont. L. Rep. 254; Tober v. Collins, 130 Ill. App. 333.

Mr. George W. Cook, for defendant in error:

The sale of a two-thirds interest in

the business of Ische Brothers to Elwyn Pond did not violate the covenant in the lease against assigning or transferring the lease, or subletting the premises or any part thereof.

24 Cyc. 969; McAdam, Land. & T. § 141; Underhill, Land. & T. § 627; Taylor, Land. & T. § 426; Livingston v. Stickles, 7 Hill, 253; Jackson ex dem. Stevens v. Silvernail, 15 Johns. 278; Riggs v. Pursell, 66 N. Y. 193; Roosevelt v. Hopkins, 33 N. Y. 81; Hargrave v. King, 40 N. C. (5 Ired. Eq.) 430, 8 Mor. Min. Rep. 408; Boyd v. Fraternity Hall Asso. 16 Ill. App. 574; Maloney v. Smith, 16 Ala. App. 595, 80 So. 169; Schroeder v. King, 38 Conn. 78; Presby v. Benjamin, 169 N. Y. 377, 57 L.R.A. 317, 62 N. E. 430; Randol v. Scott, 110 Cal. 595, 42 Pac. 976; Spangler v. Spangler, 11 Cal. App. 321, 104 Pac. 995; Swartz v. Bixler, 261 Pa. 282, 104 Atl. 591; White v. Huber Drug Co. 190 Mich. 212, 157 N. W. 60.

Steere, Ch. J., delivered the opinion of the court:

Plaintiff instituted summary proceedings before a circuit court com

the same "to be occupied for a general shoe store" at a rental of "$1,000 each year, payable monthly in advance," and in case the provided privilege of release for five years more is exercised the rental is specified as "the sum of $6,000 payable $1,200 each year, payable monthly in advance." The lessees are required to keep the premises in repair, etc. The instrument also provides: "Said parties of the second part further covenant that they will not assign or transfer this lease or sublet said premises, or any part thereof, without the written assent of the parties of the first part.

It further contains the customary provision, that in case rent is not paid when due, or "if default shall be made in any of the covenants herein contained, then it shall be lawful for said party of the first part, her certain attorney, heirs, representatives, and assigns, to re

cover possession of certain leasehold premises known as No. 527 South Saginaw street in the city of Flint. The case was retried on appeal to the circuit court of Genesee county before the court without a jury on stipulated facts, and judgment rendered for defendant.

So far as material to the question raised, it was shown that prior to January 6, 1920, plaintiff was owner by assignment from the lessor of a written lease given by Sarah E. Burr, of Flint, to Charles E. Ische and Will Ische, dated January 10, 1911, running for five years, with the privilege of renewal for an additional five years from January 10, 1916. They were partners when the lease was made and thereafter in possession of the leased premises, operating a shoe store under the firm name of Ische Brothers. lease runs to "Ische Brothers, Will C. Ische, and Charles E. Ische, copartners." The property leased is described as "the first floor and north half of the basement of store building at No. 527 South Saginaw street, second ward of Flint,"

The

ises, and the said parties of the second part, and each and every other occupant to remove and put out."

On January 6, 1920, the Ische Brothers sold to defendant, Elwyn Pond, a two-thirds interest in their stock of goods, for which a bill of sale was given, and took him into partnership with them. By the papers which they executed the shoe business was to be continued under the firm name of Ische Brothers at 527 South Saginaw street for a term of one year and four days, Pond to act as manager, for which he was to draw $25 per week, and the Ische Brothers were to "act only in an advisory capacity" in the management of the business. No mention was made of the lease in the papers which they executed between them.

On learning of the agreement between Ische Brothers and defendant Pond plaintiff gave notice of forfeiture of the lease "for breach of the covenant against subletting and assigning," and demanded possession of the premises from the three partners. On their failing to surrender possession the summary pro