Volume 1 — Howard's Nisi Prius Reports

Motion to quash writ of garnishment. Declaration filed and Rule entered Dec. 7, 1881. Affidavit in garnishment filed and writ issued Dec. 8, 1881. Declaration served on principal defendant Dec. 9th, at 7.15 o’clock a. m. Writ of garnishment served Dec. 9th, at 8.45 o’clock a. m. Motion to quash writ for the reason that the writ of garnishment was issued before the commencement of the principal action, and for other reasons not taken into consideration in giving the opinion.

Action on the case. Defendant demurred to the plaintiff’s declaration. Defendant owned a building on Jefferson avenue, Detroit. The ground floor was occupied as a store. Dooms on the three upper floors were rented to different roomers. Plaintiff and her husband rented rooms on the second floor. In the rear yard a post was erected near the building. A platform attached to the building extended out to the post.

Bill to enjoin defendants from using an alleged trademark claimed and used by complainant. Heard on pleadings and proofs, and decided at June term, 1879.

Trespass on the case for libel. Motion for security for costs. This was an application for an order requiring plaintiff to file security for costs, based upon an affidavit of merits, and a showing that, after a careful search of the records, etc., it appeared that plaintiff had no property subject to execution.

This cause was tried in Justice’s Court. While the jury were deliberating upon their verdict, they sent the officer in charge for the justice, for the purpose of asking him some questions. The justice went to their room, in the absence of the parties and their counsel, and without their consent in any way given.

Trespass on the case for malicious prosecution and false imprisonment. Plaintiff cited and relied on the ruling in Smith vs. The Tribune Co., and the Court held:

This was an action of trover against two defendants.. AVhile the suit was pending one of the defendants died, and an attempt was made to revive as against the administrators. Motion to dismiss the proceedings against the-administrators.

Demurrer to plea in abatement. Defendant pleaded in abatement that he was not a resident of Kent County, but was decoyed within it by trick and fraud, for the purpose of enabling the officer to serve the summons upon him. Plaintiff demurred.

<p>Capias ad res. — Contract.</p> <p>A Writ of Capias will be quashed op motion where the cause of action is one based upon contract, and not upon tort.</p>

<p>Divorce— Writ of We Exeat.</p> <p>In general the writ- of ne exeat will not be granted, unless in case of equitable debts or claims. The debt must exist at the time, or must be so far matured that present payment can rightfully bo demanded. A claim for temporary alimony, before it is passed upon, is not such a debt or claim as can be made tlie-foundation for the granting of such writ.</p>

<p> Trial upon AJjidaviis. </p> <p>As a general rule, no matters can properly be tried upon mere affidavit, except such as depend upon the discretion of the Court.</p>

The bill in this case was filed for the purpose of obtaining the vacation of a decree obtained by this defendant against this complainant, on the ground that the subpoena was fraudulently served, it being so served as to leave her in ignorance of the pendency of the suit.

Motion to quash, writ of replevin: — For the reason that the writ was not issued at the county seat (Caro), but was signed by a deputy clerk at the village of Vassar. Also, for the further reason that the name of defendant was omitted from the command to summon. . The name was correctly stated in the writ, as the the party defendant to whom security should be given, but in the command to summon no name was inserted in the blank for that purpose.

<p>Copyright — Injunction.</p> <p>On motion to dissdlve injunction, complainant cannot by affidavits rebut the averments in the defendant’s answer relative to complainant’s title.</p> <p>Ii is not now, as it was formerly, necessary for complainant to first obtain the verdict of a jury in his favor touching alleged infringement of copyright. Both the right and the infringement may be adjudicated in a Court of Equity.</p> <p>Equity will not compel a discovery by a defendant when his course will subject him to forfeitures or penalties, unless such forfeitures are raised by the bill; provided the defendant objects by demurrer, or declines in his answer to make such discovery on this ground.</p> <p>Denials merely on information and belief in an answer are not sufficient to entitle defendant to a dissolution of an injunction.</p> <p>Pleadings in equity should be pointed and concise.</p> <p>The time at which, a book is published is not necessarily the time at which it is printed, but the time is optional with the publishers.</p> <p>The compiler of a work may use preceding works upon the subject, where he bestows such mental labor upon what he has taken as to produce an original remit.</p> <p>Boundaries of townships are legitimate subjects of copyright where labor and research are required to ascertain the correct information.</p>

Libelant shipped cargo by the schooner New Hampshire from Presque Isle to Detroit, with instructions to master to sell cargo on arrival at Detroit. The cargo arrived and was sold by the Master Action against vessel to recover the proceeds of the sale.

In this case the libelant sought to testify as to matters equally within the knowledge of the deceased respondent.

Trial, verdict and judgment, Plaintiif is the sister of the wife of Rev. I)r. J. PI. Bayliss. The latter was appointed pastor of the Central M. E. Church, Detroit, in September 1879, and on the 24th day of that month removed with his family from Indianapolis, Indiana, to Detroit. The plaintiff, who resided in Chicago, accompanied Dr. B. and family to Detroit, intending to remain some little time. She brought along a trunk containing valuable clothing and jewelry.

<p>Assault and Battery — Measure of damages when the general issue is pleaded.</p> <p>The plea of the general issue only admits proof denying that any assault was committed.</p> <p>Justification can only be proved when notice of the special matter in defence is annexed to the plea of the general issue</p> <p>But under the general issue defendant may offer proof of all the circumstances in the case, in mitigation of damages.</p> <p>Assault and battery defined. Evidence defined. Nominal damages and exemplary damages distinguished. Preponderance of evidence.</p> <p>Duty of the jury in weighing evidence explained.</p>

<p> Forcible Entry and Detainei'. </p> <p>A party seeking relief by virtue of the proceedings of a court of inferior jurisdiction, must allege in the proceedings facts that show that the court had jurisdiction.</p>

<p> When Demurrer may be Argued. </p> <p>When there is a demurrer to one count and pleas to the others, the demurrer may be heard and disposed of before the trial of the issue of fact, and permission should be given to call it up for argument at any time when the court can hear it.</p>

<p> Goromr’s Fees. </p>

<p> Two Suits for Some Cause of Action. </p> <p>Complainant should elect in which suit he will proceed.</p>

<p> Two Suits for Same Cause of Action. </p> <p>A party may elect which form of action — law or equity — he prefers.</p>

The case having been reversed in the Supreme Court on writ of error brought by defendant, she now sought to tax as an item of costs the sum of $60.60, paid to the stenographer for a copy of the record used in settling the bill of exceptions.

<p> Alimony </p> <p>Attachment may be granted for failure to pay temporary alimony, even though respondent is adjudged a bankrupt, and is ignorant of what his employers will pay him for his services as clerk.</p>

<p> Motion for security for costs denied. </p>

<p>Deposition — Certificate as to Notary’s Official Position.</p> <p>The requirement of Act 210, Session Laws of 1879, that the clerk of the principal court of record should certify to the official position of the Notary of another State or Country before whom a deposition is taken, is matter of substance, and is not waived by failure to give-the notice of objections to matters of form named in Circuit Court Rule No. 51.</p>

<p>Motion to set aside service of civil process.</p>

<p>Chancery Practice — Rule 47.</p> <p>A party who accepts the costs taxed by the court in making an order allowing an order of reference to be entered nunc pro tunc, after the time limited by Chancery Rule 47 has elapsed, thereby waives his. right to complain of such order.</p>

<p>Plea — general issue.</p>

<p>Obstruction of Navigation^-Rights of Boom Companies — Riparian Rights —State Powers Over Water Ways.</p> <p>The Saginaw River is one of those great highways of navigation and commerce upon which the trade and commerce are earned on between the several States.</p> <p>While the State cannot confer the power to entirely obstruct the navigation of this river, it may authorize the construction of bridges which, to some extent interfere with the commerce between the States, suitable arrangements being provided for the safe passage of vessels through them.</p> <p>Rafting logs is not engaging in commerce between the States, though incidentally connected with it.</p> <p>A dock line established under the authority of the State must be presumed to be a reasonable one. But if it interferes only with commerce within the State, the State courts cannot interfere with it.</p>

<p> Lvmited Partnership. </p> <p>One who deals with a partnership with full knowledge of the .contract between the parties, has notice, or deals with reference to that contract.</p>

The complainant, by the advice of a few persons of that class, who hang on the verge of courts of justice; knowing just enough of the forms of law to make their knowledge (?) dangerous, advised complainant to get rid of Maj. Pennimau, her solicitor, so that the collusion desired in the case might be consummated without interruption.

The plaintiff in certiorari, who was also plaintiff below, commenced suit by summons against defendant in justice’s court. The summons was dated and issued June 28, returnable July 1, and was personally served June 29.

On the 6th day of July last the respondent, a justice of the peace of the city of Port Huron, issued a summons in favor of Daniel J. Stewart,’ a non-resident of this county, against this relator, Albert Dota. This summons was returnable July 10, and was duly and personally served. On the return day the parties appeared by attorneys and the cause was adjourned, and afterwards several adjournments were had, and finally it was adjourned from July 25 to August 15.

<p>Habeas Corpus — False Imprisonment.</p> <p>The complaining witness in a criminal case is not liable to an action for false imprisonment at the suit of the accused during the pendency of the prosecution.</p>

On motion for an attachment for contempt. At the time the tug was seized upon the attachment issued in this cause, most of her apparel and furniture was in the hands of one Demass, and was never taken possession of by the marshal.

On exception oí Martin Bogle to clerk’s report classifying claims. The barque was originally attached upon a libel for towage. A number of other libels were filed for tow-age and necessaries, and one for a breach of contract on the part of - the owners of the vessel in failing to deliver a cargo of coal. The barque was sold, and the proceeds paid into court.

On August 14,1883, police officer Dealer went to John T. Ryan’s place of business on Woodbridge street, Detroit, for the purpose of serving a subpoena issued out of the Recorder’s Court, upon one of Ryan’s employees. The officer failed to serve the subpoena, because, as he claimed, Ryan refused him access to the employee, and indulged in threats against the officer.

<p>Taxes — Levy by Officer.</p> <p>A tax roll fair on its face is a perfect protection to the officer in making a levy to collect taxes, although the particular tax for which the levy may he made is void.</p>

<p>Justice — Jurisdiction.</p> <p>A justice of the peace has no jurisdiction to try a case against a municipal corporation.</p>

<p>Lfew Tax Law — Tax Levy.</p> <p>The new tax law having made provision for hearing objections to taxes, an injunction ought not to be allowed to restrain their collection.</p> <p>A tax levied under a law that is repealed or void because unconstitutional, is not a cloud upon a title, which will give a court of equity jurisdiction to set it aside.</p>

The respondent was taken and committed upon a body execution issued by a Justice of the Peace. The execution was after the form prescribed in Tiffany’s Justice Guide. It failed to state the kind of action in which the judgment was rendered ; whether it was in an action of trespass, trover, replevin, or assumpsit. It failed to'show that the action in which the judgment was rendered, was one in which a body execution could be issued.

<p>Bedó/raMon — Service—Statute of Limitations.</p> <p>A suit commenced by declaration is not commenced so as to bar a claim accruing more than six years before tbe service of tbe declaration.</p>

<p>Divorce — Presence of Complainant at the Hearing.</p>

<p> Seemiiy for Costs. </p> <p>Where a case has been to the Supreme Court, and that Court’s opinion is strongly suggestive that plaintiff cannot make out such a case as will be sustained by the Supreme Court, plaintiff ought to be required, to give security for costs.</p>

<p>Probate Practice — Appointment of Administrator.</p> <p>Application by the widow or next of kin for letters of administration after the lapse of thirty days from the death of decedent, stands on the same footing as similar applications by creditors of the estate.</p>

On or about the 20th day of November, 1882, a decree for deficiency on mortgage foreclosure was entered in this cause. No appeal was taken from said decree. On February 15th, 1883, a writ of fi. fa. was issued in said cause, directed to the Sheriff of Wayne County.

Plaintiff is a hydropathic physician, and attended defendant’s wife during her last illness. Dr. Brown an allopathic physician, and Dr. Walker, a homeopathic physician, had previously attended her without benefitting her. Plaintiff sues for the value of his services. Defendant sets up in defence malpractice.

In the Court below the summons was against Bockheim and Co. The constable’s return shows service on the “defendant.” The plaintiff declared against “defendant.” During the trial plaintiff’s attorney moved to amend by inserting the name of John Bockheim alone. This was allowed and defendant excepted.

Plaintiff kept a livery stable in Detroit. Defendant hired a horse of plaintiff on Sunday. Plaintiff testified that defendant said that he was going to a funeral. Defendant testified that he hired the horse till 6 p.m., and that the funeral was but incidentally involved in the transaction. Defendant took a ride up to Grosse Pointe. On his return, while the lady with him was driving, the horse stepped through a defective bridgeway, and received injuries which caused its death.

Oliver Lane was charged with forgery alleged to have been committed at Rondeau, in the Province of Ontario. Alexander B. Baxter, of Chatham, Ontario, made complaint on information and belief, before D. J. Davidson, U. S. Extradition Commissioner, at Detroit. Lane was arrested and brought before him and he committed him to the custody of the U. S. Marshal to await the order of the Secretary of State.

In 1881 the complainant obtained a divorce from her husband on the ground of extreme cruelty. (47 Mich. 518.) The wife was decreed the custody of the children. The husband refusing to deliver them up, the wife attempted to gain possession by means of a writ of habeas corpus.

The plaintiff was assessor of a school district in the town of Bloomfield. In the spring of 1882, a teacher was employed in such district, by the district board, before the teacher had obtained his certificate from the school inspectors or examiners. After the school term closed an order was drawn on the plaintiff for the teacher’s salary. This order plaintiff refused to honor, giving as a reason that the teacher had not a certificate.

In this cause the bill was filed January 25, 1881. Decree of divorce was granted September 14,- 1881, on pro confesso, after publication of order for defendant’s-appearance, which order was made on the basis of an affidavit in which defendant’s non-residence was alleged on affiant’s information and belief, but he named in his affidavit the sources of his information. On March 13, 1882, complainant married.

George petitioned the Wayne Circuit for release on wilt of habeas corpus. He had been arrested on a writ of capias ad res., issued in and of the Superior Court, the Judge of that court — Cochrane—having endorsed on said writ an order to hold defendant George to bail. C L. 1871, secs. 5786 and 5787. Afterwards Judge Cochrane over-ruled a motion to admit George to common bail.

Execution being issued under a judgment in attachment proceedings against defendant, the sheriff levied upon and sold thereunder a large amount of personal property and returned the fi. fa. wholly satisfied. Subsequently George W. Radford, ■ defendant’s general assignee, obtained in the Superior Court a judgment in an action of trover against Walter H. Coots, the sheriff, for the value of the property so levied upon and sold. The Supreme Court affirmed this judgment.