Volume 1 — Michigan Nisi Prius Reports

<p>Authorities cited by plaintiff’s Counsel: Const. U. S., Art. 1, Sec. 10; Cooley's Const. Lim. 126; 4 Wheat. 518; Cooley 127; 6 How. 318; 3 Wal. 52; 3 How. 133; 16 How. 369; 18 How. 331; 1 Black 436; 9 Johns. 507; 7 N. H. 35; 2 Gray 1; 32 Barb. 364; Cooley 198; Angel & Ames on Corp. 332; 25 Ill. 148; 31 Pa. St. 175, 185; 32 N. Y. 270; 25 Mo. 40; 7 Iowa 110; 3 Hill 531; 13 Iowa 210; 12 Mich. 138; 43 N. H. 343.</p> <p>Authorities cited by defendant’s Counsel: 2 Cushing 337; 5 Peters 349; 98 Mass. 59; 5 Cowen 538; 7 Cowen 604; 32 N. Y. 271; 27 N. Y 621; 10 Howard 534; 43 Ill. 337; 45 Ill. 90; 46 Ill. 490.</p>

In this action, a bill of complaint was filed by the complainant against the defendant for a divorce, charging her with desertion. The defendant failed to. cause her appearance to be entered within the time prescribed by the rules of Court, whereupon an order taking the bill as confessed was duly entered.

In this case, the defendant made application to the Court, by petition, praying for a further allowance, to enable her to defend the suit, and for an order that the complainant testify orally in Court. The hill in this case, charged the wife with practicing extreme cruelty towards her husband. It was after-wards so amended as to charge adultery.

<p>The sheriff’s return, showing regular service of declaration and notice of rule to plead as commencement of suit, cannot be contradicted for the purpose of invalidating tho proceedings founded thereon} but it may be contradicted to- show excuse for default.</p>

<p>The facts in this ease, appear in the charge of the Court.</p> <p>Authorities cited: 3 Wallace 573; C. L. 329; 17 Mass. 461; 4 Pick 361; 12 Pick 7; 4 Met. 189; 5 Met 73; 6 Met. 506; 3 Cush. 572; 7 Cush. 442; 27 Maine 145; 20 E. L. & E. 319; 1 Ohio State 274; 11 Ohio State 536; 10 Howard U. S. 242; 2 Smith’s L. C. 405, 4 Cowen 454; 3 Mich. 562: 8 Mich. 433; Amer. L. Rev. Oct. 1868, 169; 5 Mich. 73.</p>

<p>Time to plead will not run while an irregular default stands against the defendant.</p>

Judgment was rendered August 20, 1869, by a Justice of the Peace. Affidavit and bond for appeal, filed August 24, 1869. -Justice’s fees paid August 28, 1869, and return made. Motion to dismiss appeal because the costs were not paid within five days after judgment.

<p>Dxfauit For want of disclosure may be entered against a garnishee, on his fallare to appear to a citation to answer special interrogations on exception to disclosure.</p>

Motion to quash a writ of attachment because the affidavit annexed does not state that the amount therein claimed to be due, is due “ over and above all legal set-off. The writ was personally served in Alpena County, and the property bonded.

Isaac A. Brown and William F. Browning brought suit againtt George F. Hollister, in assumpsit. Pendiug the snit, Browning assigned all his interest in ihe subject matter of the suit, to plaintiff Brown. On the first trial the jury disagreed.

<p>The respondent was charged under § 5756, C.-L., with burglary, in breaking and entering the “ store” of one Bartlett, at 242, Main street, Kalamazoo.</p> <p>Immediately west of the building occupied by Bartlett, and separated from it by only a partition wall, is the store building of Johnson & Sheldon. Over Johnson & Sheldon’s store is a room occupied bya Mrs. Paine and family, as a shop and dwelling. To reach this room, is a flight of stairs, from the street, between Bartlett’s and Johnson’s building, at the top of which is a door on the right, entering the second story of Bartlett’s building, and one at the left, entering Mrs. Paine’s room.</p> <p>The language of the statute- under which the respondent was informed against, is as follows: “ Every person who shall break and enter, in the night time, any office, shop, railroad depot, or warehouse, not adjoining to or occupied with a dwelling house” &c., “ shall bé punished, &e.’’</p> <p>The Court was requested, by respondent’s counsel to charge the Jury that “if they should find that a family lived in, and occupied the second story of the store next to and adjoining the one broken into, as their only dwelling, or sleeping apaitment, it is their duty to acquit the respondent.”</p> <p>Many other points were raised on the trial, and the Court was requested, in behalf of the respondent, to charge the Jury cn some fifteen distinct propositions. Some of those weie elementary, and others have been so often passed upon, that it is not thought advisable to insert them here.</p> <p>So much, only, of the charge of the Court as bears upon the request above quoted, is given.</p>

<p>Where, in a suit, in Justice’s Court, brought upon a promissory note, the defendaut seeks to avoid liability, on the ground that such note has been changed to a greater sum, after its execution, he must, at the time of joining issue, deny the execution of the note, on oath.</p>

<p>Pleading to a complaint, after an arrest on a void warrant, is no such waiver of the objection as will confer jurisdiction,</p> <p>'The warrant should be subscribed and sealed.</p>

<p>Notice of a motion to set aside a decree for divorce, aix months after the entry of the same, should be served on the complainant, instead of his solicitor.</p>

Motion to quash information. In this action, the respondent, Isabella Stratton, is charged as an accessory to the crime of rape, alleged to have been committed by Milo Crager, in and upon the person of one Phoeba Manchester, on the 29th day of December, A. D. 1868. The complaint on which the respondent was arrested, charged Crager with the principal offence, and the respondent with being present, abetting and assisting in the commission thereof.

<p>A writ of attachment is not, in contemplation of law, to be considered as returned, until the “ return day ” thereof, notwithstanding its actual return before that time.</p> <p>Though it is the duty of the officer to retain possession of the writ, until the “return day,” yet if he return it, net served, sooner, and the plaintiff, within thirty days after the “return day,” give notice by advertisement, as prescribed by \ *4759, C. In, judgment will not he set aside — all other proceedings being regular — on the ground of such premature return.</p>

<p>Where a note ia made payable oa demand, at a certain place, it i« not necessary to show, in order to entitle the holder to recover, that demand watt made at such placo before suit was brought.</p>

<p>A person who writes his name on the back of a negotiable promissory note, without consideration, before the same is delivered to the payee, is not to be hold as a joint maker.</p>

The Court was in session from the 8th to the 10th of July, 1869 — the term was then adjourned until July 26th. Default éntered July 8th — made absolute, July 14th — Judgment taken, July 26th — motion by defendant entered to set aside the default as irrregular, July 28th — the objection to the default is, that it was made absolute before four days in term had elapsed, after the default.

Motion to set aside an inquest, taken under Rule 99. Affidavits made June 9th, read, showing merits and an-excusefor not filing affidavit of merits before first day of term, which commenced June 7th. Defendant’s attorney, ten days and more before term, sent by-defendant’s clerk, requesting to see defendant at once. The clerk reported the request to come in ten days, and at that time he came, and was too late to make, seasonably, the affidavit of merits.

This was a motion to set aside a judgment entered for the defendant, at the last September term-of this Court. The facts in the case are as follows: Oh' the l-6th day o f April, 1869, the plaintiffs procured to he issued, a writ of replevin, to recover certain property, claimed to he in the possession of the defendant.

Disclosure by garnishee had been filed, but no issue claimed —L. 1861, p. 573, Sec. 12 — and the case had been put on the docket, for trial by jury, called by the plaintiff.

Motion to dissolve an injunction, granted by a Circuit Court Commissioner, for the reason that the affidavit required by the third sub-division of Gh., Rule 112, was made by the complainant.

Demurrer to declaration. In the commencement of the declaration, the defendant is named and described, thus: “ The Methodist Episcopal Church, of East Saginaw, a society for religious purposes, organized under the laws of Michigan.” The sole cause of demurrer, is: “ That the declaration does not contain any allegation that the defendant is a corporation, organized under any particular law of this State, and does not recite the title of the act, or the date of its approval,…

<p>Plea in abatement of former suit, in.same cause, pending. Replication that former suit had been discontinued. Rejoinder denying the discontinuance.</p> <p>This suit was commenced Dec. 28d, 1868, immediately after entering and giving notice of order discontinuing the former action. The rule to discontinue, was on payment of costs, and an offer to pay them accompanied the notice of the order to discontinue. No costs have been taxed and none paid.</p>

Notice of assessment of damages by the Court, for a day in term, after the first. The defendant objects, that the notice for this assessment should be the same as for assessment by the clerk, and that requiring a like notice as of trial, it should have been given fourteen days before, and for the first day of term. C. L., § § 4426, 4347.

This was an action of ejectment, brought to recover the possession of eight and 28-100 acres of land, east of and adjoining sixty acres off from the west side of the S. E. 1-4 of See. 13, Town 6, S. of R 7 W., in the County of Branch. October 1st, 1866, defendant executed and delivered to the plaintiff, a warranty deed of sixty acres of land, off from the west end of the S. E. 1-4 of Sec. 13.

Action in ejectment. In 1839, Thomas. B. Millard received from the United Stales, a patent for the N. E. 1-4- of the N. E. 1-4 of Sec. 35, T. 2 S., R. 14 W., in Van Burén County. In 1837, two years before the date of the patent, Millard executed a warranty deed for the same, including in the conveyance lands in 'Barry County, to H. N. Monroe. The deed was, soon after its execution, recorded in Barry County; but was not recorded in Van Burén County, until 1867.

Plaintiff insists that the sureties were not seasonably excepted to, the exception having been served more than 20 days after the actual return of the writ, though within 20 days after the return day. o endant’s counsel cited, 2 Hill, 357.

The facts in this case may be briefly stated as follows: On $he 31st day oí October, 1868, the defeneants, while sitting and acting as a Board of Registration, at the Dunbar Hotel, in the Third Ward of the City of Saginaw, were applied to by the plaintiff to register his name. The plaintiff claimed the right to register as “ an American citizen of Indian descent,” and was sworn and testified as to his ancestry.

Replevin for span of horses and harness. This cause was tried before the Court without a jury.

The plaintiffs bring this action to recover $300, the balance February 10, 1869, of áccount for vinegar and intoxicating liquors, and for the barrels and kegs containing them.

<p>The information in this case charges “ that on the 25th day of December, A. D. 1868, at the village of Dowagiac, in the county of Cass, Clement Pray did falsely and feloniously pretend to Charles A. Thompson, of the firm of Thompson & Son, that J. Wilford Thompson was in the habit of giving him, the said Clement Pray, credit at the store of said Charles A. Thompson <fc Son, by means of which said false pretenses the said Clement Pray did then and there designedly and feloniously.obtain from the said store of Charles A. Thompson & Son one shirt, of the value of two dollars and fifty cents, of the goods, chattels, and property of them, the said Charles A. Thompson & Son, with intent the said Charles A. Thompson & Son then and there to cheat and defraud.”</p> <p>The information concludes with the usual special averment, negativing the pretenses.</p> <p>The respondent demurs to the information, on the ground that it does not charge any legal offense; and on argument, assigns as cause of demurrer the following:</p> <p>1. That the pretense that J. Wilford Thompson was in the habit of giving respondent credit at the store of Charles A. Thompson & Son was not, if true, any reason why he should have further credit, and constituted no basis of credit; but, on the contrary, unless accompanied — as it was not — by the averment that he had justified such credits by\payment at maturity, was a good reason why he should not have further credit.</p> <p>2. That pretenses of the falsity of which, if they be false, the complainant has the means at hand of detecting are not within the purview of the statute; and the complainant, Thompson, had such means in his account books, which would show whether: respondent had any account or credit in or on them.</p> <p>3. It is not shown in the information -that said J. Wilford Thompson had any connection, as clerk, partner, or otherwise, with the said store oí Charles A. Thompson & Son.</p> <p>4. The pretense i charged was one which was not only not calculated to deceive a man of any degree of caution or sagacity into giving a credit to the respondent, or into selling him the goods on credit, but was directly calculated to induce and prompt said Charles A. Thompson to inquire, and ascertian from his books, and from the respondent himself, whether the pretense was true, and whether he had paid for any goods he had theretofore bought on credit; in other rvords, was directly calculated to put said Thompson on inquiry, and nothing more.</p> <p>5. It is not averred that the respondent requested any credit .of said Thompson & Son; nor does it appear that the credit, was not given voluntarily and without regard to the pretense.</p> <p>6. As it is material to prove that the said Thompson believed and relied upon the pretense, it is necessary that that fact be expressly averred in the information, which is not done.</p>

In this case a motion was made for a continuance until the next term of the court.

<p>When, in an affidavit, it is necessary to swear to tho advice of counsel, the statement that the-person making the same has “ fully and fairly stated all the fads he expects to prove in said cause” is insufficient.</p>

This case comes up from Justice’s Court on a writ of ccrtioran'i. Harris, the plaintiff in the Court below, brought suit on an instrument of which the following is a copy: “ $58 50.

<p>Motion to allow nn appeal from Justice's Cotirt after five days from rendition of judgment will be denied unless itnppeartliattho party applying for tbe order wus prevented from taking bis appeal sooner by circumstances not under bis control.</p>

<p>The respondent in this case is charged with the murder of Joshua Platt. The homicide is admitted; defense, insanity.</p>

<p>Notiob of trial of an appealed case should not be disregarded, notwithstanding the bond for auch appeal is defective.</p>

Suit commenced by declaration in assumpsit, on common counts, to which was attached a copy of note, with the usual notice to the defendants that the original would be offered in evidence thereinunder on the trial. Declaration and copy of note personally served on both defendants. Copy of note as follows: “ $865 51.

<p>Motion for-stay of proceedings pending tire question of one-of several defendants discharge as a bankrupt.</p>

• The defendant was garnisheed by one Worden, ás the plaintiff’s debtor prior to the commencement of this suit, and that, proceeding was pending when this suit was instituted.

<p>D. cut posts on State lands and piled them there. While he was so engaged R. bought the land, and he afterwards replevied the staves cut before as well as after the purchase. Held, - he. had no title to those cut prior to his purchase. D.’s possession conclusively admitted by bringing replevin. Such possession evidence of title against a 1 persons except the true owner. No confusion of goods. Hule of damages.</p>

<p>The principal defendant, within fbur months after the service of the writ of garnishment, was . declared a h.uikruptonhisown petition. ü&W, that the appointment of an assignee should be presumed. Held, alse, that such bankruptcy dissolved the power of garnishment.</p>

Motion to set aside judgment on default for irregularity. Declaration and notice of rule to plead in clue form served, but rule to plead defective — the word “Society” in the name of plaintiff, and name of defendant Aiken, in the title of the suit, omitted. After the judgment was entered and execution issued — about the 9th of June inst. — defendant requested delay and promised to pay the debt on the 26th, of June. The request was acceded to.

<p>Ip a plaintiff die between the trial by the Court and judgment, and the judgment is entered of the actual date when rendered, it is not void. Suit by the personal representatives of the deceased plaintiff mq.y be brought on it, ,an’d it wiU be held as conclusive as though it had been entered, nunc pro tunc, as of the date of the trial.</p>

<p>As the true cause of action is required to be stated in the affidavit to hold to bail onacapia% the ac eliani is only a formal part of the writ.</p> <p>A capias returnable out of term is irregular, and will uot be amended.</p> <p>If a ortpias, in a case not arising upon contract, is executed before an order is indorsed fixing the sum in which the defendant may be let to bail, it will be set aside.</p>

On the evening of the 4th of June, A. D. 1868, the brig City of Erie on entering the port of Manistee, in tow of the tug American Eagle, broke and entered the boom of the corn-complainant, situated on the south bank of Manistee river, carrying away a portion of the piles and lumber of the boom, whereby a portion of the logs stored therein escaped and were lost, etc. The plaintiff claims that through the misconduct, negligence and want of skill and attention on the part of…

<p>A physician is not a warrantor or insurer of a case. His only contract is to treat the case with reasonable diligence and skill.</p> <p>One who professes to adhere to a particular school of practice must come up, at least, to its average standard, and must be judged by its tests and in the light of the present.</p> <p>A greater degree of care, in respect to human life, is required than in relation to property.</p>

The respondent was charged in the information with “obtaining from John Betgir fifty dollars lawful money,’’by certain false representations, &c., under Act No. 164, S. L. 1867. The proof showed that the property actually obtained from the prosecutor by respondent, was a check of that amount drawn by an officer of a corporation upon a bank in Houghton county.

In this cause the writ of attachment was- issued and the proper affidavit was made and attached thereto, Oct. 15, 1669 the writ being made returnable on Tuesday, the 2d day of Nov., 1869. The writ was returned and filed with the clerk by the Dept. Sheriff, Oct. 18, 1869.

Original suit commenced by declaration. Judgment against the defendants in the main action by default. Before default entered, the principal defendants filed a bond in pursuance of the provisions of Act 175, Sets. L. 1867, p. 228, conditioned to pay any judgment that might be obtained against them in the action. The proceedings of garnishment were thereby discontinued.

Demurrer to Declaration. It appears by tbe declaration, that on the 22d day of Sept., 1866, the defendant insured Lewis Zagelmyer against loss by fire, to the amount of $500, on a building in the city Saginaw.

<p>A. suet B. in the Circuit Court, and also sues out garnishee process therein, and garnishees O. Subsequently thereto, but prior to the hearing of the garnishee suit, C< sues A. in Justice’s Court, and declares against him in assumpsit. A. pleads the “ general issue” and gives notice of set-off. C. proves his claim and A. proves hiB set-off to a larger amount, and claims judgement for the balance. <J, thereupon gives in evidence the pendency of the garnishee suit against him asa bar to A’s claim, and insists no judgement should be' rendered against him for the excess. The Justice gave judgement in favor of A. for the balance of his set-off. C. thereupon sues out a writ of certiorari to remove the •ause to the Circuit Court.</p> <p>JBeld, that there was bo error, and that the judgment should be affirmed.</p>

This was a bill for divorce, filed by the complainant against the defendant, who was claimed to be a non resident, and who was not served with process. An order had been made in the case by a Circuit Court Commissioner, on affidavit, showing the residence of the defendant in another State, requiring him to appear and answer the bill within two months from the date of th¡e order.

<p>Alimony — practice or rule in allowance of.</p>

Motion to quash a wrii of certiorari. The writ in this case was issued on the 28th day of February, 1870, returnable on the 5th day of March following. After the writ was issued, the attorney for the plaintiff in error, J. V. Rogers, so changed the writ as to make it returnable March 1st. In support of the motion, the affidavit of the justice was submitted, setting forth that the change referred to was made after the service oí the writ upon him.

<p>The facts sufficiently appear in the charge.</p>

Suit was brought upon two promisory notes, 6ne drawing interest at seven per cent, and the other at ten. At the time of assessment by the clerk, Mareh 31st, 1870, for judgment, there was due upon the ten per cent, note, with accrued interest, $262.78 ; on the seven per cent, note $197.28, making $460.06, for which judgment was asked. What rate of interest shall the judgment bear ?

This was an action for damages occasioned by an injury received by plaintiff, Elizabeth Barrick, who is the wife of plaitiff, Martin Barrick, by falling into a large hole through the sidewalk, on one of the streets of the city of Detroit. It was claimed by plaintiffs that the injury caused a miscarriage within three months after the fall occurred.

Plaintiff brings ejectment to recover the N. E. fractional quarter of section 6, in township 11 north, of range 14 west; and to prove his title introduced in evidence a patent from the United States to Ignatius Taylor, and also a waraDtee deed from Taylor to himself The defendant read in evidence a deed from the Auditor General to himself, dated- December 29th, 1862, for the taxes of 1860.

Exceptions to Commissioner’s report. This case was originally heard beiore Judge Green, in 1807, upon pleadings and proofs, and a decree made by which it was referred to a Commissioner to take a mutual account between the parties who were co-partners, and directing the basis upon which the accounts should be taken, and especially how much; and the value of defendant’s services over one half (if any) of the whole time.

This was a prosecution for bastardy, under the Statute. After the testimony of prosecution was closed, the defendant was offered to be sworn as a witness on his own behalf.

T. J. Ramsdell, for defendant, moved to quash the iniorma tion : 1. Because the case in which the perjury is alleged to have been committed has not yet been tried, and therefore the materiality of the testimony has not been determined by that Court. ‘2. The information does not set forth the pleadings in the .case in which the perjury is charged so that this Court can determine its materiality.

Assumpsit on note for $800, dated January 30th, 1866, payable in one year from date, with interest at 10 per cent., purporting to have been signed by the defendants individually. Interest endorsed thereon as paid June 30th, 1867, 1868 and 1869, in three endorsements. Declaration, with copy of note and endorsements, and notice of rule to plead, personally served on each of defendants, March 14th, 1870.

This was an action of replevin, brought by plaintiff against defendant for a number of young cattle. The plaintiff, by written agreement, dated March 26, 1866, leased her farm in Fabius township to the defendant, for the term of one year, commencing on the first day of April, 1866, and was to receive from defendant, two-thirds of all graiu, hay, and other produce raised on the farm.

The applicant tiled a petition to vacate a portion of a street in the village of Leeland. in which he claimed to own all the land in the blocks each side of that, portion of the street to be ' vacated. Miller owned land adjoining the street in the next block. Applicant claimed that inasmuch as he owned all the land immediately adjoining that portion of the street to be vacated, the defendant had no right to resist the application.

<p>Where an injury is dono lo a public bridge, not within tho limits of any designated highway dihtrict, an action for such injury should bo brought In tho name of tho Highway Coinmibsiouers — otherwise if the injury or interruption hud occurred to the laud upon which a highway runs. In such case an action for privute damages can only be maintained by the owner oí the fee, or by persons sustaining a particular injury; and tho only remedy the public hus, in case of such interruption, is by indictment, summary abatement, or peualty.</p> <p>The State Legislature has full power to authorize the construction of a bridgo over a navigable htream; and when such bridgo is built as required by the Act, no one has a right to complain of it on the ground of more inconvenience; and tho exercise of this power cannot be questioned except by a puramount law of Congress. The ordinance of1787 does not affect the question.</p> <p>Persons running boats upon a navigable river, ovur which a bridgo is built in pursuance of law, are responsible for, injuries done to the bridgo through tlu-ir negligence of the management of such boats; and tho timo tor a party to exercise cavo and skill Is before he puts himself in tho very road of casualty.</p> <p>Negligence a mixed question of law and fact.</p> <p>"Vigilence and skill in tho running of bouts should be increased in proportion to the difficulties in navigating in particular localities.</p> <p>Rule of damages.</p>

<p>The facts in this case sufficiently appear in the opinion.</p>

<p>By statute, “ the court in which the trial of any indictment shall bo had, may, at the same term, or at the'nexf term thereafter, on motion in writing of the defendant, grant a new trial for any cause which, by law, a new trial may be granted, or when it shall appear to the Court that justice has not been done, and on such terms or conditions as the Court shall directand a Court cannot, by passing sentence, a proceeding wholly in invzium, so far as the respondent is concerned, deprive him of his right under this statute, of coming into Court and moving for a now trial and presenting and urging his reasons therefor, at any time before the end of the term next succeeding the term at which the respondent was convicted.</p> <p>The actual presence of a defendant in Court is not necessary in order that his motion for a new trial may be entertained.</p> <p>Cumulative evidence is sueli as tends to prove the same fact which was before attempted to bo proved. Evidence offered not of the same fact, but of a different fact with the same logical bearing, held not to be cumulative.</p> <p>A new trial will sometimes be granted on cumulative evidonce if such evidence will make a doubtful case clear.</p> <p>A person is not qualified to sit as a juror, in the Circuit Court, unless his name appear on the assessment roll for the same year. The provision of the statute is iuexoiable and cannot, in a criminal case, bo ignored by the people or waived by the defendant.</p>

This was an action upon a promissory note for one hundred and fifty dollars, made b'y the defendant, payable to O Simpson order, six months after date, dated April 14, 1869, and endorsed by the payer. Plea the general issue. The defence was that the note was a forgery. The defendant is a German, residing in the town of Ridge-way, speaking the English language imperfectly, and not able to read it.

<p>Millmorb had suits pending in different courts, on call about the same time. His presence at both places appeared necessary. On motion, held that the cause last noticed for trial should be continued.</p>

The bill in this case sets forth the following facts : That in May, 1868, defendants Kellogg and Richardson were engaged, in the city of Detroit, in selling a certain patented invention, known as “ Staples’ Automatic Clothes Washer and Boiler,” claiming to be the owners of the same for the State of Michigan; that they applied to complainant to purchase the right representing the invention to be a new and valuable one; that relying on these statements, complainants did…

Motion by plaintiff for leave to amend declaration. This action was commenced by filing of Narr., and entry of rule to plead in Wayne Circuit, August, 1868. The plea was the general issue. Upon the trial, the jury rendered a verdict for the plaintiff in the sum of $ 3000. The defendants alleged .error, and on the argument in the Supreme Court the judgment below was reversed, and a new trial ordered.

<p>A city order upon its own treasurer'and payable out of a special and designated fund, is not a negotiable promissory note or bill of exchange.</p> <p>Under the Charter of the City of Lansing, an order drawn by the clerk of said City upon its treasurer, payable out of a specific fund^which was to be created by assessment upon a portion only of the houses and lands of the City, designated as being benefited by the improvement in payment of which the order was given, does not create an indebtedness against such City,</p>

, Motion by defendant’s attorney to strike cause from the calendar for the term, for want of proper notice of trial. The action was assumpsit, and the plaintiff’s attorney made affidavit that he deposited the notice of trial in the post office at Centreville, addressed to defendant’s attorney at Three Rivers, on Saturday, the 7th day of May, 1870, the notice being for the 24th of May, the first day of the term.

This was an action of trespass on the case, in which the plaintiff recovered judgment on the trial before the justice, from which judgment the defendant appealed. The subject matter in issue, was certain personal property originally belonging to the husband of the plaintiff, or to her and her husband, which the defendant was alleged to have taken and appropriated.

<p>The statutes, S. L. 1867,251, requires “not less than thirty nor more than sixty day’s notice” to be given of the time and place of - selling animals distrained for running at large contrary to law. Notice was posted June 26th; sale to take place July 25th. Held, The notice was insufficient.</p>

<p>An affidavit is an oath, in writing, sworn before and attested by one who has authority to ad - minister the same. Hence, if the jurat is not signed, that which purports to be an affidavit is a mere nullity.</p> <p>An appeal from a Justice's Court, made upon an affidavit which is general, relating only to the judgment on the merits, brings up only the questions of fact involved in the controversy.</p> <p>On an appeal, objection cannot be taken, to process, pleadings, or other proceedings before the Justice, unless such objection was raised before tbe Justice, and his decision was rendered thereon.</p> <p>If no motion is made in the Justice’s Court in relation to the alleged defective process plea lings, or proceedings, certiorari is the only remedy by which a party can, in the Circuit Court, avail himself of the objection.</p>

<p>A bill alleging two grounds for divorce— adultery and habitual drunkenness — is not, for that reason, defective for nraUifariousness.</p>

Motion to quash a writ of replevin, and to set aside the proceedings thereunder. The writ in this case was issued April 6th, and made returnable May 3d, 1870 — being the first Tuesday in May. Held: in continuance of the present term, on the 13th day of May, after the other eases should be disposed of.

William Cheever, administrator of the estate of Ebenezer Arnold, deceased, applied for an appeal from the decision of the Commissioners appointed to examine and adjust claims against said estate, in allowing a claim of William Stevens, and in such application alleged the following grounds or reasons for appeal: First, “ The Commissioners allowed to said Stevens a sum much larger than the amount equitably due to him from said:' deceased.’’ Second, “ The said Commissioners did…

The respondent is charged with adultery. Her counsel ask the Court to instruct the Jury that it devolves upon the People to show a legal marriage between respondent and complaining witness.

The defendant hy his attorney, within two days after verdict entered in the Special Motion Book, in due form, a motion for' a new trial, as required by rule 29; and on the same day filed an affidavit on which the same was in part founded, and served a copy thereof on the plaintiff’s attorney as required by rule 28.

Motion to quash a writ of replevin and set aside the proceedings. The writ was tested November 3d, 1869, and made returnable the first Tuesday in January, 1870. ' The regular term of the Circuit Court commenced the fourth Tuesday in November, so that not only a regular term, but also the first Tuesday in December (a return day,) intervened between the teste and return of the writ, which was’ the ground upon which this motion to quash ^vas made.

This action was trespass de bonis asjiorlatis, commenced before a Justice of the Peace, for the unlawful taking and selling of a buggy. The case was appealed to the Wayne Circuit Court, and tried by a jury. On the trial of said cause the counsel for plaintiff gaveevidence . tending to prove that one Augustus Schuferdt, by the direction of the defendant, took and sold the buggy in question against the will of the plaintiff.

Suit was brought to recover the purchase or contract price of a certain tract of land, supposed to be valuable for mining purposes, in Keweenaw County. Trial, by a jury, was had at the March term, 1870, and a verdict rendered in favor of the plaintiff, for the full contract price, $20,500.00, with interest, and amounting to $27.675.00.

<p>Boiible costs, under our statutes mean common costs and one-half added thereto.</p> <p>Where, under $ 3736,2 Comp. Laws, the plaintiff woe entitled to doub le costs, and the taxing officer had actually doubled the common costs, a retaxation was ordered to be made as above, on the same basis as specified in £ 5605,2 Comp. Laws.</p>

Motion tor perpetual stay of execution as against a certain lot claimed as a homestead, which has been levied on and advertised for sale. In 1866 the defendant purchased a lot in the village of Portsmouth, and resided on it, with his family, until some time in 1867, when the house thereon was destroyed by fire.

Motion in behalf of the defendant to suppress depositions taken under a commission, on formal objections. A witness was asked, in cross interrogatories, whether he had any interest in the assets of the Gore Bank, Canada, and in regard to sundry other things which his deposition shows must have transpired under his observation.

This cause, on appeal from a Justice’s Court, had been noticed for trial at a previous term, and was now noticed a second time for trial, eight days before term.

Information for burglary. On the informátion being read to the respondent, his counsel objected to his being required to plead, because there is no return of the examining magistrate showing, and it does not otherwise appear, that he has had or waived an examination.

Information for obtaining money by false pretences. Motion to arrest judgment. The information states that the respondent, at the time and place stated, “falsely and feloniously pretended to Geo.

<p>Motion to dismiss appeal, by C. Joslin, Esq., in behalf of Abraham Shear, the Claimant and Appellee.</p>

Case made upon agreement of parties, under § 3^21 of the G. Tj., as follows: The above named defendant is a municipal corporation existing under the laws of this State.

This cause was tried before the Court and Júry. The plaintiff declared against the defendants as guarantors Of a written contract.

The regular term of court commenced May 2d. stipulated, at the tirpe of the informal call of the calendar, that the cause should pot be placed on the call-board before the 17th day of May. The cause was not reached on the 17th, and counsel for the respective parties further stipulated that the, same should not be placed on call until a subsequent day in the term — on which subsequent day the trial was had, and judgmer^ rendered for the plaintiff.

<p>A new trial on the ground of newly discovered evidence, will not be granted upon evidence which may possibly influence a Court or Jury to render a different verdict. The true eviten an is, would the legitimate logical effect of the newly discovered fact be to reverse the former verdict?</p>

<p>1. Error in a decree can not be notice on a motion to set aside a foreclosure sale.</p> <p>2. A notice dated and first published December 12,1867, for sale under decree January 18, 1868, is not sufficient, according to the common practice of the Court.</p> <p>8. The land having been “ struck off” to a bidder, and the bidder and Commissioner having separated without any notice that the sale would be reopened at a subsequent hour on any contingency, the notice of sale was spent, and a postponement for a week, on such bidder refusing to pay, by inserting notice of such postponement in the newspaper in which th original notice was published — irregular.</p> <p>4. But objection for such irregular notice will be waived if not made promptly after the irregularity is known.</p>

This is an action of trespass, brought to recover damages for tearing down and removing a certain fence on the northerly side of Black River, in Stockton’s west addition to the City of Flint.

<p>A-Motion to set aside levy, notioe of sale and execution and for a perpetual stay of execution.</p>

Certirari to Justice’s Court. The suit below was in replevin commenced by the defendant in error, by writ issued Dec. 2d, 1869, and made returnable Dec. 14th. The bond given by the plaintiff below, under § 3695, C. L., was the penal sum of $50 Gnly, and not $100.

Suit on a note. The defendant had filed with his plea an affidavit denying his signature, &c. Sworn before a notary public,. The jurat was under the notary’s hand, but not under seal. contended that § 461, G. L., required there should be a seal to the jurat or it was not evidence.

The prisoner being on trial for larceny, the prosecution.call ed E. F. Howe as a witness. objected to his being sworn, beca úse his name was not endorsed, with the other witnesses, upon the information. In the case of the People vs. Van Buren no names of witnesses were endorsed, and Smith, the defendant’s attorney, was also heard.

• This cause being regularly on the calendar at each of two preceding terms, was continued by consent of parties “ without terms.” The plaintiff recovered, and included in his bill of costs five dollars term fee for each of the terms at which the case was continued. The Clerk, on motion of defendant, disallowed and struck out the term fees. Plaintiff now moves for a re-taxation.

<p>The summons In a writ of replevin “to appear before the undersigned, a Justice of the Peace of Buchanan, in said county, at my office,” 1b sufficiently certain.</p>

<p>This case was commenced in vacation, proofs taken and argument had at Chambers.</p>

<p>A contract cannot by assignment be divided so as to give separate liens or causes of action.</p> <p>An assignment, ‘ For a valuable consideration to me paid by Edmund Fitzgerald, I hereby assign the above contract, and all payments and claims due thereon, to him, his heirs and assigns” — is an assignment of the whole contract, and the assignor cannot in his own name enforce a lien for any balance afterwards becoming due, at least until after reassignment.</p> <p>A contract with A, BandO, described to he “trustees,” but who promise and sign without the addition of “ trustees,” Ac., is a personal contract, and does not create a lien upon the property of the society of which they are trustees, hut is personal only.</p>

John W. Labar died July 5th, 1859. His will was admitted to probate, duly- proved and allowed September 15th, 1859. One of the provisions of the will reads as follows : “ I give and bequeath to my son Alanson, and to each of his four children, Humphrey, Alice, Emory and Edith, ten dollars.” October 4th, 1859, letters testamentary were issued to S. B. Nichols, one of the executors named in the will.

<p>For motion, Gashill & Greer.</p>

<p>I this causo a judgment having been rendered iu favor of the plaintiff, against the defendant, before a justice of the peace, the defendant within five days after the rendition thereof, made and filed with the justice his affidavit for an appeal therefrom to the Circuit Court, and also a bond with surities, ap_ proved by the said justice, and at the same time paid to the justice the costs taxed in favor of the plaintiff and included in the judgment. As ho was about leaving the office the justice iiot formed the defendant that he had still to pay him one dollar for making his return. The defendant then offered to the justice a. five dollar bill, but he not being able to change it remarked to the defendant. “ Never mind, you can hand*it in to me at any time,” or used words to that effect, and the defendant left without paying the dollar.</p> <p>A few weeks after, the defendant not having paid the justice the dollar for making his retdrn, the justice on demand of the plaintiff issued execution on the judgment, and delivered the same to an officer for collection.</p> <p>The defendant on learning of this, at once called with his attorney upon the justice and finding he had made no return on the appeal, tendered him the dollar for his fee and demanded that he should recall the execution and make out his return to the Circuit Court, which the justice declined to do/ The de fendant thereupon, on affidavit of himself and his attorney set. ting forth the above facts, made application to the Circuit Court for an order on the justice to make return on the appeal. The Court at first made an order requiring the justice to make return or show cause, and the justice showing cause in answer thereto, set up in his justification for not making return on the appeal that the appellant had not within five days after the rendition of the judgment paid him the fee of one dollar for making his return, The facts as set forth by the defendant were substantially admitted, the justice only insisting that no particular time was specified or agreed upon at the time within which the dollar was to be paid, and claiming..that the five days having elapsed, after the judgment, without payment of said fee, that therefore the defendant had failed to perfect his appeal. The defendant on this showing now applied for a peremptory order on the justice to make return.</p>

<p>Certiorari to a Justice of a Peace and Sheriff.</p> <p>Briiningstool and Bullock were arrested on a charge of assault and battery, and brought before a Justice of the Peace. The respondents plead “ not guilty,” and not demanding a jury, the Justice proceeded to hear the case. The respondents were convicted, and sentenced to “ pay a fine of fifty dollars and costs, or in ease of failure to pay said fine and costs, to be imprisoned in the County jail ninety days each, and the fine not being paid, they were committed. The Sheriff’s return shows that he holds the petitioners by virtue of the Justice’s warrant of commitment; and the Justice’s return shows the iiicts above stated.</p>

This was an action brought under chapter fifty-second of the Compiled Laws, in reference to intoxicating drinks. The case was tried before a justice of tho peace, by an attorney (not the Prosecuting Attorney) employed by the prosecutrix Mary Taylor. Judgment was rendered for defendant, and an appeal was taken to this Court, by the People.

<p>Plaintiff commenced attachment suit against defendant and attached certain property which defendant claimed was owned and occupied by him as a homestead.</p> <p>Defendant moved to have the property released, on the ground that the projieity was a homestaed, and filed affidavits to that eflect, upon which the motion was based.</p> <p>Drake on Attachments, 417; 7 Michigan 507; 3 Wisconsin 756; 14 Wisconsin 576; 6 Michigan 468.</p> <p>Drake on Attachment 416; 11 Michigan 858; 6 Michigan 468.</p>

<p>In a prosecution for murder, it devolve upou the People to establish not only the fact of the killing, but that such killing was malicious.</p> <p>Malice may be said to be the spirit desiring harm or misfortune to another, without just</p> <p>The doflnitiou of murder, under our statute, remains tho same as at common, law.</p> <p>Tho corpus delicti must bo established by clear and uneqivocul proof, and this must be done by direct evidence when it can be made; or, when direct evidence cannot be made, then by circumstances of equal power.</p> <p>If circumst-mtial evidenco satisfios tho mind, then it is equal to positive evidence, because it produces the same effect.</p> <p>To warrant a verdict of guilty, the jury must find that tho theory of tho guilt of the prisoner flows naturally from the facts proved, and from all of the facts, and must be consistent with all such facts, and utterly inconsistent with any other theory.</p> <p>5© rendor any fact or circumstunce alleged by the prosecution, or attempted to he proven, f any value in establishing the guilt of the defendant, such fact or circumstance roust, not only be proven beyond all reasonable doubt, but it must be such a fact as is consistent with the guilt of tho defendant and inconsistent with his innocence.</p> <p>If the light drawn from any given fact, taken in connection with all the facts upon which it has a bearing, contributes no more to sustain tho theory ot guilt than of innocence •such fact should be rejected.</p> <p>So uncertain and unsatisfactory are our conclusions drawn from moral phenomena, that in. matters of great importance, especially such as involve the life or liberty of the citizen, w© should only give effect to such conclusions as are corroborative of other facts and circumstances.</p> <p>The rule to bo applied in weighing testimony, discussed. Also, the weight to be given to tho statement of the accu6t d.</p> <p>The reasonable operation of evidence of the previous good character of the accused, is to create a presumption that the party was not likely to have committed the act imputed to him; and inasmuch as it is the duty of the jury to find beyond a reasonable doubt, the guilt of the respondent before they should convict, it is immaterial whether such doubt is induced by want of testimony, or by the introduction of auy evidence, whether of good character or any other fact or tacts which the Court permits to go to ¿he jury.</p> <p>Reasonable certainty of the respondent’s guilt, is vhat the law requires to justify u conrlc tion — that degree of certainty upon which the jury would return to net in their own gravo and important coucorus.</p>

<p>By the provisions of nil© 79 the plaintiff is nót required to make proof of the execution of certain instruments or of the’ hand-writing of the defendant, unless the defendant or some one in his behalf shall file and serve a copy pf an affidavit denying the Bame. It is a substantial and sufficient compliance with this rule if the defendant file and serve a copy of an affidavit which, though not positively denying the execution of the instrument, sets up facta-which if true, necessarily carries the same conviction to the mind as s would a positive and unequivocal denial.</p> <p>Where a person is induced, through fraud, to sign an1 entirely different instrument from what ho intended, such instrument is to be treated as a foro-ed instrument,and as creating no liability upon the signer.</p> <p>If A sign a bond undertaking to discharge certain duties, or in case of default, to pay a certain sum of money, and subsequently so much of the paper.as contains the conditions on which the money is to be paid is detached, without the knowledge or’ consent of the obligor, so as to make his undertaking to pay money to appear to be absolute, this i« such an alteration as^amounts to a forgery, and oo recovery can' be had upon such promise, even by a bona fide holder.</p>

The facts in the case, briefly stated, are as follows: Bill for foreclosure filed July 26, 1861. Answer of all the defendant’s filed prior to January 1st, 1862. Replication filed March 5, 1862. June 25, 1862, order entered closing proofs, on motion’of defendant’s Solicitor. Though the order of 'closing proofs does not appear ever to have been opened, some testimony was taken afterwards, and filed in tbe cause.

Case Submitted on demurrer to bill, October 10th, 1870. The hill states that one Joseph Mitchell, in his life-time was seized of the S. E. quarter of N. E. quarter of Sec. 80, T. 2 N., R. 13 E. On the 31st of May, 1836, he made a will by which he bequeathed this land to his wife Emily, as follows: “ I give and bequeathe to my beloved wife, Emily Mitchell, and her heirs if any there be, at my decease,” the land described.

Action of replevin brought before and appealed from a Justice of the peace. The affidavit, writ and declaration are in the usual form and the action is not brought in pursuance of the Statute entitled, “ Of Distraining Beasts.”

<p>. A. defendant appealed from a Justice’s Court and succeeded iu the Circuit. Held, that he has «right to tax as part of his coste, both the amount paid tho Justice on the appeal and those coste he would have recovered had he succeeded in the Court below.</p>

<p>The Circuit Court in Chancery will i»t®xt*rcáae3mmttction m those cswos in which an adequate remedy existe in the Probate Court.</p>

Certiorari from the judgment of a justice of the peace. The declaration is on the common counts in asssumpsit. Plea, general issue, with notice of set off, and that defendant had beeen discharged from his indebtedness by a decree in bankruptcy. The only evidence offered by the plaintiff to prove his account was the deposition of the plaintiff taken before a justice in Ohio.

This was a suit commenced by attachment, the writ personally served, narr. filed, default entered, and the same made absolute at the- present term of the Court, with order for assessment of damages.

The defendant moved that the case be stricken from the calendar of cases for trial, and that the same be dismissed for reasons following: The plaintiff’s attorney insists contra, that the proceedings by defendant’s attorney are irregular, and not in conformity to the statute referred to, and did not operate as a stay of proceedings,, alleging, 1, That there was no legal service of notice of trial. 2, That there was no note of issue filed. 3, That there had been no county fee…

<p>Where an appeal was attempted to be taken from the judgment of a justice of t.he peace, and it appeared on inspection of the return that the jurat to the affidavit was not signed, Held on motion, that the appeal should be dismissed* Held, also, on application for an order for an appeal in such case, that the same eho'úld be allowed, in- pursuanco with the provisions of § 3842, C. L.</p>