Volume 100 — Michigan Reports

(Person, J.) Argued February 2, 1894. Decided April 10, 1894. Certiorari to review - proceedings resulting in the dissolution oí a writ of attachment. The facts are stated in the opinion.

<p>Negligence — Setting fires by steamboats — Insufficient appliances— Interstate commerce — Construction of federal statutes.</p> <p>1. The owner of a steamboat is not under the legal duty to use the most effective means known to prevent the escape of sparks from its smokestack, and, if he uses an appliance or device which experience has shown to be reasonably effective in accomplishing that result, he is not required to use additional appliances or devices, although the danger might thereby be greatly lessened.</p> <p>2. The improper use of proper appliances to prevent the escape of sparks from the smokestack of a steamboat must be distinctly averred in order to be available as a ground of recovery in a suit for the loss of property set on fire, as claimed, by sparks thus emitted,</p> <p>3. Where, in such a suit, the sole theory of the plaintiff is that reasonable care and precaution, under the common law, required the defendant to provide the smokestack of its steamboat with a screen or spark arrester, and that its failure to da so caused the fire complained of, and the theory of the defendant, which is supported by evidence, is that it did provide suitable appliances, in dampers and a flue cap, to prevent the escape of sparks, and that they were as effective as a screen, if not more so, as preventives, it is entitled to an instruction that if the jury find that the steamboat was so equipped that, by closing her dampers and opening the flue cap, no sparks or fire'sufficient to have set the plaintiff’s property on fire could have escaped from said smokestack, the plaintiff cannot recover, even though they find that the dampers were not closed or the flue cap open.</p> <p>4. The effect of such a request, if given, is entirely negatived by the additional instruction that the jury must further find “that the use of ordinary care did not require the defendant, in addition, to have the smokestack of its boat equipped with a. fire screen to prevent the escape of sparks.”</p> <p>5. The act of Congress (IT. S. Rev. Stat. chap. 1, 2, title 12), and the regulations adopted thereunder by the board of supervising inspectors, relating to the equipment of vessels engaged in interstate commerce upon our lakes and rivers, do .not abrogate all the rules of the common law relative to liability for injuries inflicted by the negligence of vessel owners in not supplying their vessels with appliances which common experience has shown to be requisite for the proper protection of persons and property upon shore, and the use of which would not endanger the safety of persons and property on board.</p> <p>6. A spark arrester is not an “instrument, machine, or equipment,” within the meaning of U. S. Rev. Stat. §§ 4400, 4491, which provide that no kind of instrument, machine, or equipment for the better security of life, provided by the act of which said sections are a part, shall be used on any steam vessel navigating any waters of the United States which are common highways of commerce, or open to general or competitive navigation, excepting public vessels of the United States, vessels of other countries, and boats propelled in whole or in part by steam for navigating canals, which shall not first be approved by the board of supervising inspectors, and also by the Secretary of the Treasury</p> <p>7. The first duty of a vessel owner is the protection of those on board, and who are directly under his care, and any device, appliance, or equipment which endangers them cannot be required by law, no matter how great the protection it would furnish to the property on the shore; and when the dangerous character of such devices is in issue, and the evidence is conflicting, the jury should be instructed that if they find the device, upon the use or absence of which an allegation of negligence is based, would be dangerous to the boat and to the property or persons on board, the law does not require its use.</p>

(Gartner, J.) Argued February 13, 1894. Decided April 10, 1894. Petition by Alexander McVittie for his discharge as trustee for defendants under the will „of Gordon Campbell, deceased, and for the settlement of his accounts. Defendants appeal. The facts are stated in the opinion.

<p>Damages — Loss of profits.</p> <p>1. Damages which are purely speculative in character, and dependent on so many contingencies that they cannot be traced with reasonable certainty to the breach of the contract, are not allowable.</p> <p>2. Where the contractee breaks a contract for the performance of work and labor after it has been partly performed by the contractor, and then performs the remainder of the work himself, and reaps the profits which the contractor might have made from a full performance, he cannot escape liability for damages if the contractor can show the profits which he made from the partial performance of the contract, and the benefits received by the contractee from its completion.* 1</p>

(O’Hara, J.) Argued February 13, 1894. Decided April 10, 1894. Bill to declare a mortgage to be a prior lien to an earlier recorded mortgage, executed on the same day, and to foreclose the same. Complainant and defendant Becker appeal. The facts are stated in the opinion.

<p>Husband and wife — Separate maintenance — IAen on lands,</p> <p>1. Section 2 of Act No. 243, Laws of 1889, entitled “An act to provide wives with property and maintenance from their husbands’ estates when neglected or deserted by them,” etc., empowers the. court to grant an injunction restraining the sale of the husband’s property, and provides that notice of such injunction filed with the register of deeds shall operate as an attachment of the property, and that, to enforce its decree, an execution may issue, and be levied upon such real estate; but How. Stat. § 6293, which provides that the payment of the sum fixed by the court for the support of a wife and minor children when deserted by the husband and father may be secured upon real estate, is not expressly repealed by said Act No. 243, and the exercise of the authority thereby conferred is not inconsistent with that conferred by the 1889 act.</p> <p>2. A son induced his wife to join with him in the conveyance to his father, without consideration, of 80 acres of land, after which 40 acres of other land, valued at $2,000, was purchased, subject to a $600 mortgage, and the deed taken in the son’s name. The son and his wife occupied this 40 acres as a homestead up to the time of their separation, after which event the father, who had agreed to pay the $600 mortgage, secured a mortgage for $1,000 from his son on the 40 acres. He then sold the 80 acres, and, having secured an assignment of the $600 mortgage, commenced to foreclose both mortgages. The wife filed a bill under the statute to secure a separate maintenance, and on the hearing it appeared that the 80 acres was conveyed without consideration; that it was not intended as a gift to the father; and that, when the 40 acres was purchased, it was the understanding that it was to be paid for by the father, in consideration in part for the conveyance to him of the 80 acres. And a decree making the sum awarded for the wife’s support a lien upon the 40 acres, with priority over both of the mortgages held by the father, is affirmed.</p>

(Smith, J.) Submitted on briefs February 16, 1894. Decided April 10, 1894. Case. Defendant brings error. The facts are stated in the opinion. contended: 1.

<p>Appeal from Kent. (Adsit, J.) Argued February 14, 1894. Decided April 10, 1894.</p> <p>Bill to dissolve writs of attachment. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Argued March 6, 1894. Denied April 10, 1894. Relator applied for mandamus to compel respondent to vacate an order setting aside an order of distribution of á trust fund. The facts are stated in the opinion, and in 89 Mich. 15, and 97 Id. 502.

<p>Appeal from Kent. (Adpit, J.) Argued March 7, 1894. Decided April 10, 1894.</p> <p>Bill to foreclose a mortgage. Defendants W. Steele Packing & Provision Company and Grand Eapids Savings Bank appeal.</p> <p>The facts are stated in the opinion.</p>

(Adsit, J.) Submitted on briefs March 9, 1894. Decided April 10, 1894. Petition for the amendment of a decree on foreclosure. Defendant Bayne appeals. The facts are stated in the opinion.

<p>Error to Genesee. (Newton, J.) Submitted on briefs March 9, 1894. Decided April 10, 1894.</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

Qertiorari to Wayne. (Hosmer, - J.) Argued April 3, 1894. Decided April 10, 1894. Relator applied to the circuit court for mandamus to compel the payment of his salary as city counselor of Detroit. Respondents bring certiorari to review-order granting the writ. The facts are stated in the opinion.

<p>Contract — Reformation—Bona fide purchaser— Consideration.</p> <p>1. To justify the .reformation of a written contract' upon the ground of'mistake in drafting the same, the alleged mistake must be one of substance and of fact, and not of law, and must be proved by clear and entirely satisfactory evidence, "and not by a mere preponderance, ^and must be mutual and common to both parties to the contract.</p> <p>2. Mortgagees who take an assignment of a contract as collateral security for the mortgage debt, upon which they are to apply whatever amount they are able to collect on the contract, are not purchasers in good faith for value, and have no standing in a court of equity as bona fide purchasers, with a right to be protected as such, in a suit brought against their assignor to reform the contract on the ground of mistake in drafting the same; citing Me&raio v. Solomon, 83 Mich. 449.</p> <p>3. Where, in such a case, the reformation of the contract reduces the amount due the assignor thereon, and it appears that the mortgagees, as a part of the consideration for the assignment, surrendered to the assignor certain notes and mortgages which they held as collateral and additional security for the mortgage debt, they will have the right to demand of the complainants an amount sufficient to meet the balance of their claim, if any, remaining after exhausting their securities aside from the contract, and applying the proceeds on said debt, not exceeding, however, the amount of complainants’ indebtedness on the contract before its reformation.</p>

<p>Error to Shiawassee. (Newton, J.) Argued June 8, 1893, and reargued January 6, 1894. Decided April 17, 1894.</p> <p>Negligence case. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

Belators applied for a writ of prohibition against respondent, restraining any proceedings under Act No. 205, Laws of 1893, in the matter of the estate of their testatrix. Argued January 16 and 17, 1894. Granted April 17, 1894. The facts are stated in the opinion.

<p>Trust — Accounting.</p> <p>An examination of the opinion in connection with the opinion reported in 88 Mich. 43, is essential to a correct understanding of the questions decided.</p>

Mandamus. Argued January 30, 1894. Granted April 17, 1894. Relator applied for mandamus to compel respondent to vacate an order allowing the Rundle-Spence Manufacturing Company and other creditors of the Detroit Plumbers’ Supply Company to intervene, and answer and file a cross-bill resisting the petition of the relator, filed under How.

<p>Error to St. Joseph. (Loveridge, J.) Argued February 2, 1894. Decided April 17, 1894.</p> <p>Respondent was convicted of keeping his saloon open on Sunday.</p> <p>The facts are stated in the opinion.</p>

<p>Appeals from Wayne. (Iiosmer, J.) Argued February 18, 1894. Decided April 17, 1894.</p> <p>Bills to set aside attachments. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from'Grand Traverse. (Ramsdell, J.) Submitted on briefs February 15, 1894. Decided April 17, 1894.</p> <p>Bill to enforce a mechanic’s lien. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

(Brevoort, J.) Argued March 8, 1894. Decided April 17, 1894. Appeal from the disallowance of a claim against the defendant estate. Claimants bring error. The facts are stated in the opinion.

(Gage, J.) Submitted on briefs March 8, 1894. Decided April 17, 1894. Case. Defendant brings error. The facts are stated in the opinion. contended: 1.

<p>Error to Wayne. (Hosmer, J.) Argued March 9, 1894. Decided April 17, 1894.</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>False representations — Materiality—Instructions to jury.</p> <p>Where in a suit brought to recover the purchase price of milk cans sold to the defendants for creamery purposes, with the right to use them in certain designated territory, the defendants claim that they purchased the cans in reliance upon the representations of the plaintiffs that they had a perfect title, and in the belief that defendants would have the exclusive right to the territory, and seek to recoup damages on account of the alleged failure of the title of plaintiffs to the territory, it would not be error for the court to instruct the jury that the representations as to title, if made, were material, and hence the instruction that the jury shall determine whether the representations were deemed by the defendants to be material cannot prejudice the plaintiffs’ rights.</p>

Mandamus. Argued March 6, 1894. Granted May 4, 1894. Relators applied for mandamus to compel respondent to restore an order appointing a receiver for the Owosso & Corunna Street-Railway Company. The facts are stated in the opinion.

Information in tlie nature of quo warranto to test the title to the office of warden of the State House of Correction and Reformatory at Ionia. Argued April 3, 1894. Judgment of ouster entered. May 4, 1894. The facts are stated in the opinion, and in 98 Mich. 96, and 99 Id. 381.

Mandamus. Argued April 10, 1894. Granted May 4, 1894. Relator applied for mandamus to compel respondent to dissolve an injunction. The facts are stated in the opinion.

Mandamus. Argued April 24, 1894. Denied May 4, 1894. Relator applied for mandamus to compel respondent to quash a writ of replevin, and dismiss the proceedings. The facts are stated in the opinion.

(Adsit, J.) Argued April 24, 1894. Decided May 4, 1894. Relator applied to the circuit court of Kent county for mandamus to compel the respondent to set aside an order for an allowance to the widow of Fredn A. Holcomb, deceased, and brings certiorari to review the order denying the writ. The facts are stated in the opinion.

<p>Error to St. Clair. (Vance, J.) Submitted on briefs January 2, 1894. Decided May 18, 1894.</p> <p>Beplevin. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Muskegon. (Dickerman, J.) Submitted on briefs January 3, 1894. Decided May 18, 1894.</p> <p>Garnishment proceedings. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Argued January 18, 1894. Granted May 18, 1894. Relator applied for mandamus to compel respondent to levy a tax sufficient to pay the claim of relator under a contract to furnish a water supply. The facts are stated in the opinion.

(Smith, J.) Argued February 1, 1894. Decided May 18, 1894. Respondent was convicted of assault and battery, and sentenced to pay a fine of $20, or stand committed to the Barry county jail until the fine should be paid, not exceeding 30 days. The facts are stated in the opinion.

<p>Life-insurance — Policy payable to heirs at law of insured — Rights of widow.</p> <p>1. Under the statutes of this State, the widow takes a share of the personal property of her. husband as distributee, and not as dowress, and is an heir as to such property.</p> <p>2. On the death of a member of a mutual benefit or co-operative life-insurance company, who dies intestate,' and whose policy of insurance is made payable to his “heirs at law,” the widow is entitled to share in the proceeds of said policy.</p>

(Reilly, J.) Submitted on briefs February 16, 1894. Decided May 18, 1894. Appeal from an order of the probate court allowing the final account of James H. Menzies, administrator de lonis non of the estate of George Buchan, deceased. The appellant brings error1. The facts are stated in the opinion.

<p>Appeal from Berrien. (O’Hara, J.) Argued February-16, 1894. Decided May 18, 1894.</p> <p>Bill to restrain the -cutting of timber on complainant’s land. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Error to' Jackson. (Peck, J.) Submitted on briefs Jan_ nary 3, 1894. Decided May 18, 1894.</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Deed — Description—Plat—Acceptance of street — Boundaries of lot — Fee of canal bed — Estoppel—Adverse possession.</p> <p>1. When a general description of real estate is given, followed by a more particular description, the latter expresses the intent, and controls; citing Smith v. Strong, 14 Pick. 128; Whiting v. Dewey, 15 Id. 428; Winn v. Cabot, 18 Id. 553; Dana v. Bank, 10 Mete. 250; Howell v. Saule, 5 Mason, 410; Barney v. Miller, 18 Iowa, 466; Jones v. Smith, 73 N. Y. 205; Gano v. Aldridge, 27 Ind. 294; MeFoiven v. Lewis, 26 N. J. Law, 451.</p> <p>2. When reference is made to a map or plat in a deed, such map or plat is considered as incorporated in it as fully and completely as if it were actually delineated in the instrument; citing Wilson v. Hoffman, 70 Mich. 552; Heffelman v. WaterPower Co., 78 Id. 121; Jefferis v. Land Co., 134 U. S. 178; Miller v. Land Co., 44 Kan. 354.</p> <p>3. Though a plat be not signed and acknowledged, so as to effect a statutory dedication of a street marked thereon, yet, the intent being clear, acceptance is implied from user, and improvements paid for by assessments on the land of abutting owners.</p> <p>4. One cannot have the benefit of the adverse possession of land by his predecessors in title where the conveyances under which he claims do not purport to convey the premises so occupied, and where the same are not within the inclosure of those actually conveyed.</p> <p>5. Upon the facts of this case, as stated in the opinion, it is held that it was the intention of the original proprietors of the land of which the premises in dispute form a part, who platted the same, built a dam across the adjacent river, and constructed the canal upo i which said premises abut, to reserve the title to the bed and banks of the canal, the strips of land marked on the plat as “ reserved,” the basin, and chutes as and for their private property, and tbat in the conveyances of adjoining mill lots they conveyed the fee in the lots as platted only, and that the grant of the right to use the water from the canal in connection with said lots was of an easement simply, — a right to the flow of water through flumes constructed for that purpose. An examination of the opin'on is essential to an intelligent .understanding of the questions decided.</p>

(Lane, J.) Argued March 9, 1894. Decided May 18, 1894. Certiorari to review proceedings to clean out a drain. Plaintiff brings error from order dismissing the writ. The facts are stated in the opinion.

Mandamus. Argued April 3, 1894. Denied May 18, 1894. Relators applied for mandamus to compel respondent to vacate an order allowing the amendment of a declaration in an action for malpractice sought to be revived against them, as executors.- The facts are stated in the opinion.

<p>Appeal from Kalamazoo. (Buck, J.) Argued April 4, 1894. Decided May 18, 1894.</p> <p>Bill to foreclose a lien on real .estate. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Replevin — Demand—Joint possession — Parties.</p> <p>1. The failure of a mortgagee, to whom a husband and wife mortgaged, household goods, to make a demand upon the wife for the delivery of the goods before replevying them of the husband upon default, the same being in their joint possession, will not defeat the. action.</p> <p>2. Where, in such a case, the goods are in the exclusive possession of the wife, and replevin is brought against her for the same without demand, she can defeat the action, not because she is entitled to the possession, but because she is not guilty of unlawfully detaining the goods, in which case she will be entitled to a judgment for costs, but not for a return of the property as against the lien of the xffaintiff; citing Darling v. Tegler, 30 Mich. 54; Gidday v. Witherspoon, 35 Id. 368; Sinehman v. DoaJc, 48 Id. 168; S'teere v. Vanderberg, 90 Id. 189.</p>

<p>Error to Kent. (Adsit, J.) Submitted on briefs April 4, 1894. Decided May 18, 1894.</p> <p>Replevin. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Ionia. (Smith, J.) Argued April 4, 1894. Decided May 18, 1894.</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion, and in 91 Mich. 611.</p>

<p>Error to Muskegon. (Dickerman, J.) Argued April 5, 1894. Decided May 18, 1894.</p> <p>Negligence case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

(Grove, J.)' Argued April 5, 1894. Decided May 18, 1894. Proceedings for forcible entry and detainer. Complainant brings error. The facts are stated in the opinion.

(Smith, J., presiding.) Argued April 5, 1894. Decided May 18, 1894. Bill to foreclose a mortgage. Defendants Ingersoll appeal from an order denying their petition for Heave to file a bill of review. The facts ai^e stated in the opinion.

<p>Deed — Bill to set aside conveyance — Fraud—Settlement—Decree.</p> <p>Complainant, a man about 60 years of age, having- separated from his wife, wrote to the defendant, who had lived with complainant for several years prior to attaining his majority, asking him to sell his personal property, and come and live with complainant. Defendant complied with complainant’s request, and complainant conveyed to him by warranty deeds about 300 acres of land, in consideration of his agreement to furnish complainant a life support. Complainant’s daughter, learning of the arrangement, interfered, and insisted that it be set aside. A settlement was made between the parties, by which the defendant deeded to the daughter one-half of the lands, and gave a new agreement, in lieu of the first one, to furnish complainant a life support, after which the daughter conveyed the land deeded to her to her father. The complainant, about 20 months after ■ such settlement, filed a bill to set aside his deeds to defendant, on the ground that they were procured from him while he was in so enfeebled a condition, both physically and mentally, as to make the procuring of them a fraud upon him. And it is held that the proofs fall short of showing that the defendant took any undue advantage of complainant; that complainant’s letters, written at about the time the deeds were executed, are clear and intelligible, and bear no evidence of having been written by.a man of weak mind; and that, aside from this, it appears that the settlement was agreed to by all of the parties, and was deliberately made, and no fraud or overreaching is proved in bringing it about. And the decree below, which denied the main relief prayed for, and decreed that, in lieu of the agreement set forth in the bill, the defendant should pay semi-annually a fixed sum to the complainant during his lifetime, and that the same should be a lien upon the portion of the lands owned by him, is affirmed.</p>

<p>Railroad companies — Injury to employe of shipper — Contributory negligence.</p> <p>The negligence of the plaintiff in remaining in a box car, which he was assisting in loading with seeders or grain drills, for the purpose of supporting the seeders while the car was being pulled out from the spur track, upon which it was standing, to enable the defendant; to place some cars laden with iron on the spur track, and who was injured by reason of the defendant’s kicking the box car back onto the spur track, unattended by a brakeman, it being down grade, and causing it to run against the cars which had been placed on the spur track with such force as to overturn the seeders, and tip them over onto plaintiff, is held not to have been so clear as to have justified the court in taking the case from the jury.</p>

<p>Error to Wayne. (Hosmer, J.) Submitted on briefs April 6, 1894. Decided May 18, 1894.</p> <p>Negligence case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Washtenaw. (Kinne, J.) Argued April 10, 1894. Decided May 18, 1894.</p> <p>Bill for an accounting. Complainant appeals.</p> <p>The facts are stated in the opinion, .and in 91 Mich. 40G.</p>

<p>Chattel mortgage — Contract — Pleading — Amendment — Directing verdict — Waiver.</p> <p>1. Where, on sustaining an objection to the introduction in evidence of a written contract because not specially declared upon, leave is given to the plaintiff to amend the declaration, and the court suggests to the plaintiff that the better way to test the question is to have a verdict directed in favor of the defendant, and then go to the Supreme Court, and the plaintiff acquiesces in the suggestion, and consents that a verdict may be directed against him, he waives his right to amend the declaration, and cannot assign as error the refusal of the court to permit him to do so.</p> <p>2. Where the purchaser of a portion of the property covered by a chattel mortgage agrees in writing with the mortgagee safely to keep and care for the property so purchased until the mortgage debt matures, and then to deliver it to the mortgagee, or pay him a specified sum, if he fails to recover the full amount his due out of the remainder of the property, the plaintiff must specially declare upon the agreement in a suit to recover damages for its breach.</p>

<p>Appeal from Shiawassee. (Newton, J.) Submitted on briefs April 6, 1894. Decided May 18, 1894.</p> <p>Bill to foreclose a mortgage. Defendant Parsons appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Montcalm. (Smith, J.) Argued January 3, 1894, and resubmitted September 25, 1894.' Decided April 17 and November 7, 1894.</p> <p>Assumpsit. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Pleading — Recoupment.</p> <p>No damages can be recouped except such as spring out of the contract upon which suit is brought; citing Molby v. Johnson, 17 Mich. 382.</p>

<p>Practice in Supreme Court — Findings of fact — Exceptions—Motion for new trial — Statutes.</p> <p>1. A party who desires to review a judgment rendered in a case tried before the court without a jury, and to question the conclusions reached by the court upon the facts and law, must have written findings, both of fact and law, and must take his exceptions thereto; citing Haines v. Saviers, 93 Mich. 440.</p> <p>2. Act No. 134, Laws of 1893, which provides “ that in all cases hereafter taken to the Supreme Court on writ of error or appeal, where a motion for a new trial has been previously refused by the trial judge, the party appealing the same may incorporate in the bill of exceptions a record of all proceedings had on said motion for a new trial, including the reasons given by the trial judge in refusing to grant said new trial,” and that “exceptions may be taken and error assigned on the decision of the circuit judge in refusing such motion, and the same shall be reviewed by the Supreme Court,” does not apply where the motion was decided, and writ of error issued, before the act took effect.</p>

<p>Liquor traffic — Sale to husband — Civil action — Damages.</p> <p>Where, in a suit by a wife to recover for injuries to her means of support sustained by reason of the sale of intoxicating liquor to her husband after the defendant had been served with hotice not to sell to him, there is evidence from which it is competent for the jury to find that plaintiff’s husband commenced a protracted, continuous debauch on a given day by drinking at the defendant’s saloon, and that his spree lasted for a given period, and the jury do so find, the defendant is liable for all damages resulting therefrom.</p>

<p>Sale — Passing of title.</p> <p>The owner of a stock of groceries, estimated to be worth from $700 to $800, ¿greed to exchange it for certain city lots, the price of which was fixed at $750. The lot-owner was to assume the payment of debts of the grocer to the amount of $175, and the purchase price of the lots was to be paid by applying on tlie contract for their sale and conveyance the amount of the invoice of the groceries, thereafter to be taken, less the $175, .and the remainder in annual payments of $50 each. A bill of .sale of the groceries was executed and delivered to the lot-.owner, who executed the contract for the sale and conveyance ■ of the lots, which was left with the scrivener at the request .of both parties. The key of the store was delivered to the lot-.owner, and it was agreed that the store should be kept open for business, and that the amount of the sales of groceries ■made without being inventoried should be added to the amount ■of the invoice. The lot-owner took possession of the store, .and commenced doing business. One of the creditors, whose debt had been assumed, demanded payment of the debt, and was informed by the lot-owner that he would pay it, but needed a little time, whereupon the creditor secured a chattel mortgage on the groceries to secure the debt from the original owner, and in the absence of the lot-owner took possession of the store, and afterwards sold the groceries on the mortgage. And in affirming the action of the trial court in directing a verdict in favor of the lot-owner, who sued the creditor in •¿rover for the value of the groceries, it is held:</p> <p>a — That the execution and delivery of the land contract was as complete a payment for the groceries as a money consideration actually paid would have been.</p> <p>b — That, under the undisputed facts of the case, the title had passed when the mortgage was given, as the key to the store had been delivered, and the lot-owner placed in the absolute possession and control of the goods, with the understanding on the part of both parties that the title had passed, and the only remaining act to complete the transaction was to determine by an inventory how much should be indorsed as paid upon the land contract as the value of the goods sold.</p>

<p>Error to Hillsdale. (Lane, J.) Argued April 13, 1894. Decided May 18, 1894.</p> <p>Assumpsit. Plaintiff brings error..</p> <p>The facts are stated in the opinion.</p>

<p>■Chattel mortgage — Usury—Bill to enjoin foreclosure — 'Parties— Teudei• — Decree—Disclaimer—Costs.</p> <p>1. Where mortgagors file a bill to restrain the foreclosure of a chattel mortgage, and for its surrender to them on payment of the sum admitted by the bill to be due thereon, and which the complainants claim to have tendered to the assignee of the mortgage, and the court finds that the mortgage, so far as it had ever been a valid lien, was discharged by the tender, a decree should be made for the surrender of the. mortgage upon payment of the amount of the tender.</p> <p>2. Where a bill is filed by mortgagors to restrain the foreclosure by an assignee of a chattel mortgage which they claim is usurious and fraudulent, and for its surrender and discharge, and the court finds in their favor as to the usurious and fraudulent character of the .mortgage, and the mortgagees, who are joined as co-defendants with the assignee, assert, as does the assignee, that he is a bona fide purchaser of the mortgage and accompanying note, which issue is found against them by the court, the mortgagees cannot escape the payment . of costs upon the ground that they disclaimed any interest in the securities; citing Laprad v. Shenoood, 79 Mich. 523.</p>

<p>Error to Montcalm. (Smith, J.) Submitted on briefs April 13, 1894. Decided May 18, 1894.</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

(Brevoort, J.) Submitted on briefs April 13, 1894. Decided May 18, 1894. Summary proceedings to recover the possession of land. Defendants bring error. The facts are stated in the opinion.

(Dickerman, J.) Submitted on briefs April 4, 1894. Decided May 18, 1894. Petition for sale of lands delinquent for taxes under Act No. 195, Laws of 1889. Defendant appeals. The facts are stated in the opinion.

(Dickerman, J.) Argued October 4, 1893. Decided May 22, 1894. Bill to compel the distribution of the surplus profits of a log-running corporation among its patrons, pursuant to 3 How. Stat. § 3923a. Complainant appeals. The facts are stated in the opinion.

(Beach, J.) Argued January 31, 1894. Decided May 22, 1894. Bill to set aside a chattel mortgage and for the appointment of a receiver. Defendant Messmore appeals. The facts are stated in the opinion.

Appeal front Sanilac. (Beach, J.) Argued January 31, 1894. Decided July 10, 1894. Bill to set aside a chattel mortgage and for the appointment of a receiver. Defendant Joseph H. Dillon appeals. The facts are stated in the opinion, and at page 352, mile.

(Reilly, J.) Argued November 3, 1893. Decided May 22, 1894. Bill for an accounting. Complainants, and defendants George William Moore, McBae, and Greeley appeal. The facts are stated in the opinion, and in 83 Mich. 653.

Mandamus. Argued January 30, 1894. Denied May 22, 1894. Relator applied lor mandamus to compel respondent to vacate an order quashing a writ of attachment. The facts are stated in the opinion.

<p>Error to superior court of Grand Rapids. (Burlingame, J.) Argued January 30 and 31, 1894. Decided May 22, 1894.</p> <p>Negligence' case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Landlord and tenant — Covenants—Constructive eviction — Damages —Evidence.</p> <p>The lessees of an hotel sublet the cigar and news room, with the appurtenances thereto, including the right of entrance to and from the hotel rooms, for the purpose of carrying on the business of cigar selling and news dealing. The lease contained a grant of the entire cigar privilege of the hotel, and a covenant for the peaceable and quiet enjoyment of the demised premises. The cigar room opened into the hotel office, and also onto the main street in front of the hotel. After making the lease a third party succeeded to an interest in the general lease of the hotel, and he and one of the original' lessees thereafter ran the hotel as copartners, and the sublessee attorned to them. The new firm, finding the hotel business unprofitable, abandoned the ground floor, on which the hotel office was located, and used the upstairs portion of the building for sleeping rooms in connection with another hotel. The sublessee thereupon abandoned the premises sublet to him, and brought suit against the firm to recover damages, claiming a constructive eviction, and an implied covenant to maintain the hotel. And in affirming a judgment in favor of the plaintiff, it is held:</p> <p>a — That the claim that the case falls within How. Stat. § ■5655, which provides that “no covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not,” is without force; that there is no obscurity or uncertainly in the terms of the lease, and there can be no doubt that, on the one hand, the plaintiff understood that he was securing the room with the door opening into the hotel office, and was to have the cigar privilege with the door opening into the hotel, nor, on the other hand, that his lessors understood that they were leasing the same thing; and that it is not a case of implied covenant, there being an express covenant for the peaceable and quiet enjoyment of the thing leased.</p> <p>b — That the closing of the hotel was such an interference in the plaintiffs use of the premises as to amount to an eviction.1</p> <p>c — That the defendant who became an assignee of an interest in the original hotel lease, and to whom, plaintiff attorned, and who himself assisted in closing the hotel, thus working an eviction, is liable therefor.</p> <p>d — That the measure of plaintiff’s damages is the actual value of the unexpired term of his lease, less the rent reserved.</p> <p>e — That evidence relative to the falling off in the plaintiff’s' trade by reason of the closing of the hotel was not wholly irrelevant to the question of the value of the use of the premises leased to him.</p>

(Gartner, J., presiding.) Argued February 1, 1894. Decided May 22, 1894. Respondent was convicted of suffering a gaming room and gaming table to be kept'and maintained on premises occupied and controlled by him, and sentenced to imprisonment in the Detroit House of Correction for three months, and to pay a fine of 1500. The facts are stated in the opinion. contended: 1.

(Judkins, J.) Argued February 2, 1894. Decided May 22, 1894. Bill to quiet title claimed under tax deeds. Defendants appeal. The facts are stated in the opinion.

<p>Motion for the entry of a judgment against the surety on the bond given by the defendants on removing the judgment rendered against them in justice’s court by certiorari to the circuit court, or to change the form o'f the judgment entry in the Supreme Court so as to empower the circuit court to enter such a judgment. Submitted April 3, 1894. Denied May 22, 1894. The facts are stated in the opinion, and in 98 Mich. 13.</p>

<p>Assault — Evidence—Instructions to jury.</p> <p>1. In an action against a fanner by a domestic, who had been in his employ, for carnally knowing the plaintiff against her will, the defendant testified on his direct examination that, on numerous occasions when he came home Saturday nights from a neighboring village, he found the plaintiff and a young man with whom she was keeping company, sitting in a hammock. And it is held, that it was permissible for the plaintiff to cross-examine the defendant relative to his staying out late Saturday nights at said village, for the purpose of negativing his opportunity for witnessing alleged familiarities between the parties in the hammock.</p> <p>2. No objection was made to this line of cross-examination until the defendant had testified that he had frequently remained at said village until 12 o’clock at night, and had volunteered the statement that he did not stay later than any other farmer who had business there, whereupon he was asked if there were' many farmers that stayed there as late as 12 o’clock at night, which question was objected to. And it is held that, in view of the voluntary statement of the witness, it was not error to-permit the question to be answered.</p> <p>3. Defendant was asked on cross-examination whether he had any trouble with a certain girl who had worked for him just previous to the time the plaintiff entered his employ, and, after the court had indicated that he would exclude the proposed testimony, the objection to its introduction was withdrawn, and the inquiry allowed to proceed. At its close the defendant was asked if he knew another girl, naming her, and was allowed to answer, under objection, that he did; and, on the objection of his counsel, the court excluded any inquiry as to his relations with this girl. And it is held that the proposed testimony was incompetent, but, in view of the waiver of- the former objection to this line of inquiry, it cannot be said that the mere preliminary question as to whether the defendant was acquainted with the girl, and his affirmative answer, prejudiced his rights.</p> <p>4. The defendant’s counsel, on cross-examination of the plaintiff, emphasized the fact that one Lindsay, an employe of the defendant, slept in a room adjoining the one occupied by the-plaintiff, and plaintiff was permitted to show on the cross-examination of the defendant that, at a previous term of court, the defendant had procured a continuance on an affidavit showing that Lindsay was a material witness, and that defendant expected to prove by him that he slept in said adjoining room during the time of the alleged assault upon the plaintiff, and heard no outcry; that defendant knew the whereabouts of Lindsay, but did not produce him, and had concluded not to call him after having had a conference with him. And it is held that such cross-examination was competent to rebut the-inference which the defendant sought to draw from the failure-of plaintiff to produce Lindsay as a witness in her behalf.</p> <p>5. The defendant's wife, who, for the purpose of giving the jury the impression that the plaintiff was pregnant during the time-she was a member of the defendant’s family, had testified that, during that time, plaintiff had morning sickness, was asked on cross-examination at what stage of pregnancy morning sickness occurs. And it is held that this was competent as affecting the candor and credibility of the witness.</p> <p>6. The weather records, kept at the insane asylum at Kalamazoo-, 12 miles distant from the defendant’s residence, were received1 as rebutting evidence in favor of the plaintiff, the state of the-weather having been made material by the claim on the part of the defendant that it was so hot on the night of the alleged assault that the family was compelled to sleep with the doors and windows open. And it is held that the testimony was admissible, under the rulings in DeArmond v. Neasmith, 32 Mich. 231; People v. Dow, 64 Id. 717.</p> <p>7. The instructions set forth in the opinion, taken as a whole, are-held to have clearly conveyed to the jury the understanding of the court that there could be no recovery unless the intercourse was effected by force and against the will of the-plaintiff, and whether this would or would not technically amount to the crime of rape is unimportant.</p>

<p>Will — Trust—Liability of executor — Accounting.</p> <p>A husband willed all of his property to his wife, to he managed and controlled by her to the best of her judgment and ability, during her widowhood, for the benefit of their minor children. The will further provided that, if the widow should remarry, it was the will of the testator that she should thereafter take nothing by the will, but that the residue of the estate should be sold or otherwise disposed of, and the proceeds applied by her co-executor for the use and benefit of the children on their or the survivor of them arriving at full age. The widow received all of the estate, and after paying the debts and funeral expenses, and erecting a monument to her husband, invested $5,000 of the .residue of $7,000 in real estate, which investment proved unfortunate, and nearly the entire amount was lost. About three years after the death of her husband the widow remarried. The children, who were respectively about 5 and 7 years of age when their father died, were properly supported and educated by their mother, and largely at her expense. After attaining their majority they filed a bill for an accounting against their mother and the executor. The bill was dismissed as to the executor, and a decree entered against the mother for $2,500, from which decree complainants, alone, appealed. And, on affirming the decree, it is held:</p> <p>a — That, whatever may have been the moral obligation of the executor to accept the trust set forth in the will, and look after the interests of the children, there was no legal duty imposed upon him, and he could only be held in so far as he received and misappropriated the funds.</p> <p>b — That there was no obligation, either moral or legal, resting upon the executor, to assume the responsibility of the execution of the trust until after the widow’s remarriage, and he could not be held liable for any misappropriation of the funds by her prior to that event; nor was he compelled, upon her remarriage, to demand from her the administration of the trust.</p> <p>e — That it is manifest from the evidence that the children were well treated and cared for by their mother, and it would be inequitable to deprive her of a reasonable allowance for that purpose; that during her widowhood, the income from the estate being insufficient, she possessed the right, under the will, to encroach upon the principal; that it is evident that she had no comprehension of business affairs, and did not appreciate the necessity of keeping strict account of her receipts and expenditures; that, while it is unfortunate that the surrogate court failed to call her to an accounting, no evidence of bad faith, or any disposition on her part to defraud the children, is found, and the Court are not disposed to modify the decree of the court below.</p>

<p>Error to Lenawee. (Lane, J.) Submitted, on briefs April 8, 1894. Decided May 22, 1894.</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Divorce — Pleading—Collusion.</p> <p>1. "Where a bill for divorce charges both extreme cruelty and adultery, collusion cannot be inferred from the filing of a stipulation striking the latter charge therefrom.</p> <p>2. While, as held in Ayres v. Circuit Judge, 90 Mich. 380, the requirement of 3 How. Stat. § 6232, that the oath to a bill for divorce shall negative the existence of any collusion whatever between the complainant and the defendant in x-elation to the application for divorce, is mandatory, and its absence cannot be waived by any act of the defendant, still, where the jurat states that “there is no agreement or understanding” between the parties in relation to the application for a divorce, the defendant should not be permitted to object for the first time in the Supreme Court that the oath is not in strict conformity with the statute, she having appeared, answered, contested the case, and filed a petition to set aside the decree appealed fx'om.</p>

(Daboll, J.) Argued, April 10 and 11, 1894. Decided May 22, 1894. Bill to enjoin the diversion of a water-course. Defendants appeal. The facts are stated in the •opinion.

(O’Hara, J.) Argued April 10, 1894. Decided May 22, 1894. Summary proceedings to recover the possession of land. Complainant brings error. The facts are stated in the opinion.

<p>Malicious prosecution — Legal advice — Justification—Complaint by agent — Liability of principal.</p> <p>1. Where, in an action for malicious prosecution, the evidence is conflicting as to whether the defendant made a full and fail-statement to the magistrate who issued the warrant of all of the facts within his knowledge tending to cause or to exclude belief in plaintiff’s guilt, the question whether he made such a disclosure should be submitted to the jury.1</p> <p>2. Where in an action for malicious prosecution against a railroad company and one of its employés for the arrest of the plaintiff, on the complaint of such émployé, for the alleged larceny of property belonging to the company, there is no evidence showing or tending to show that the employe was instructed by any officer or employe of the company to make the complaint, or that he was acting in the line of his duty to the company in making it, a verdict is properly directed in favor of the company; citing Travis v. Insurance Go., 86 Mich. 288.</p>

Mandamus. Argued April 24, 1894. Granted May 22, 1894. Helators applied for mandamus to compel respondent to set aside an order quashing contempt proceedings, and to proceed with the hearing of the question of contempt. The facts are stated in the opinion.

<p>Bills and notes — Consideration—Public policy — Bona fide holder— Burden of proof.</p> <p>1. A promissory note given without consideration, and upon the threat of the payee to prevent the allowance by the city council of the claim of the maker for paving a street, is absolutely void in the hands of the original payee.</p> <p>2. Where, in a. suit by an indorsee, it conclusively appears that the note upon which the suit is brought was given without consideration, and that the transaction upon which it was based was contrary to public policy, the burden of proof is upon the plaintiff to show that he is a bona fide holder, and that he purchased the note without knowledge of the corrupt and illegal character of the transaction; citing Tilden v. Barnard, 43 Mich. 376; Goodrich v. McDonald, 77 Id. 486; Banh v. Dill, 84 Id. 549; Horrigan v Wyman, 90 Id. 121.1</p>

<p>Error to Allegan. (Padgham, J.) Submitted on briefs April 27, 1804. Decided May 22, 1894.</p> <p>Replevin. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

(Hosmer, J.) Submitted on briefs April, 27, 1894. Decided May 22, 1894. Petition that the receivers of an insolvent corporation be directed to pay to the petitioner the amount of a decree in his favor as a preferred claim, under Act No. 94, Laws of 1887. Petitioner appeals. The facts are stated in the opinion.

Mandamus. Argued February 20, 1894. Granted May 22, 1894. Relator applied for mandamus to Compel the respondent board to reconvene, and recanvass the votes bast upon the question of the adoption of a proposed amendment to the Constitution relative to the salary of the Attorney General. The facts are stated in the opinion.

<p>Taxes — Payment under protest — Recovery.</p> <p>1. Under section 42 of the tax law of 1891, which provides that any person may pay any tax, whether levied on personal or real property, under protest, to the township treasurer, specifying at the time, in writing signed by him, the grounds of such protest, and may within 30 days, and not afterwards, sue the township for the amount paid, and recover if the tax is shown to be illegal for the reasons specified in such protest, a right of recovery exists only where the tax itself is shown to be illegal.1</p> <p>2. A township treasurer made a formal levy upon a quantity of saw-logs owned by a lumber company, and stored in its booms in a lake, to satisfy taxes assessed against its president upon his individual personal property. The treasurer advertised the logs for sale, and before there had been any removal or threatened removal of the logs, and two days before the day fixed for the sale, the company paid the taxes under protest. It did not attack the legality of the taxes themselves, but insisted that the logs seized were cut from its lands, and did not, either at the time of assessment or seizure, belong to the person against whom the taxes were assessed. The company sued the township to recover the taxes so paid, and in reversing a judgment in its favor, and entering a final judgment in favor of the defendant, it is held:</p> <p>a — That the case is not within the statute authorizing the payment of taxes under protest, and that plaintiff’s right of recovery must be determined by common-law rules, under which, in no case, could the defendant be held for more than the amount of the taxes actually received.</p> <p>b — That the treasurer’s warrant did not command or authorize him to satisfy the taxes from the plaintiff’s property, and that in making the levy he acted without color of authority; that plaintiff had not only an ample remedy against the officer, but could maintain replevin against the purchaser at the sale, if one should be made; and that under such circumstances the payment to the treasurer was voluntary.</p>

(Haire, J.) Argued April 10, 3894. Decided May 23, 1894. Bill to foreclose certain mortgages, for an accounting, and the appointment of a receiver. Defendants appeal. The facts are stated in the opinion.

<p>Appéal from Kent. (Grove, J.) Argued November 1, 1893. Decided May 23, 1894.</p> <p>Bill to enforce a mechanic’s lien. Defendants Norris and Shepard appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Carriers of passengers — -Failure to stop at station — Just and legal excuse — Penalty.</p> <p>1. Where in a suit against a railroad company to recover the penalty imposed by How. Stat. § 3324, for failing to,deliver the plaintiff, who was a passenger on one of its west-bound trains, at a regular passenger station, it appears that the snow was badly drifted just west of the station; that notice of this fact had been given to the conductor, coupled with a caution against the same; that a freight train was following close behind the passenger train; that it was night; and that the engineer and conductor, in the exercise of their honest judgment, thought it safer and better to stop where they did, about three-quarters of a mile beyond the station, than in front of the station, and that they would stall the train if they stopped at the station, — a just and legal excuse is shown for the violation of the statute.1</p> <p>2. The following propositions are summarized from the opinion of Mr. Justice Hooker:</p> <p>a — The responsibilities upon those having charge of a railroad train are heavy, and they must of necessity act upon their judgment, which is usually better than that of courts or juries.</p> <p>b — It should not be the policy of the law to encourage carelessness upon the part of train men or companies, and, where an honest judgment is exercised in an emergency reasonably justifying it, the convenience of the passenger must yield.</p> <p>c — Stopping a passenger train before reaching a station, and upon a bridge or elevated track, on- a dark and stormy night, to permit men who had been drinking to get oil', might be a hazardous experiment, under decisions of this Court, especially when the attention of a part of the train-men might be required to guard against an approaching freight train, which in turn might be compelled to stop in a less favorable place, thereby endangering travel and traffic upon the road.</p>

Exceptions before judgment from Midland. (Hart, J.) Argued April 25, 1894. Decided June 2, 1894. Bespondent was convicted of the crime of embezzlement. The facts are stated in the opinion.

(Newton, J.) Submitted on briefs April 25, 1894. Decided June 2, 1894. Respondent was convicted of the crime of manslaughter, and sentenced to imprisonment in the State House of Correction and Reformatory at Ionia for nine years. The facts are stated in the opinion.

(Chambers, J.) Submitted on briefs April 25, 1894. Decided June 2, 1894. Respondent was convicted of murder in the first degree,, and sentenced to imprisonment in the State prison for life. The facts are stated in the opinion.

Exceptions before judgment from Marquette. (Stone,' J.) Submitted on briefs April 25, 1894. Decided June 2, 1894. Eespondent was convicted of keeping his saloon open after hours. The facts are stated in the opinion.

Exceptions before judgment from Hillsdale. (Lane, J.) Submitted on briefs April 25, 1894. Decided June 2, 1894. Respondent was convicted of a violation of the local option law. The facts are stated in the opinion.

Error'to Houghton. (Hubbell, J.) Submitted on briefs April 26, 1894. Decided June 2, 1894. Eespondent was convicted of an assault with intent to ■do great bodily harm, less than the crime of murder, and sentenced to imprisonment in the Marquette prison for 5 years. The facts are stated in the opinion.

<p>Appeal from Wayne. (Reilly, J.) Argued April 26, 1894. Decided June 2, 1894.</p> <p>Bill to quiet title. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Washtenaw. (Kinne, J.) Submitted on briefs January 19, 1894. Decided June 2, 1894.</p> <p>Negligence case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Eatou. (Smith, J.) Submitted on briefs March ' 8, 1894. Decided June 2, 1894.</p> <p>Replevin. Plaintiffs bring erior.</p> <p>The facts are stated in the opinions.</p>

<p>Fraudulent conveyances — Evidence—Conduct of counsel,</p> <p>1. Plaintiff brought trover against the defendant, as sheriff, for a stock of goods, which defendant had attached, after their sale and delivery to the plaintiff, at the suit of the vendor’s creditors. On the trial the defendant introduced testimony tending to show that the vendor was intoxicated at the time the stock was gone over and the sale concluded; that he took but little part in the matter; and that after the levy of the attachment, and the commencement of the trover suit, he selected his exemptions, and they were set aside to him by the defendant. And it is held:</p> <p>a — That there was no sufficient evidence to go to the jury as to a fraud upon the vendor, even though that could have been made available as a defense; that, as between the vendor and the plaintiff, the latter was the owner of the goods, and the only defense available was that the sale was made with intent to defraud creditors; but that the testimony as to the vendor’s condition was admissible as bearing upon the question of notice to the purchaser. /</p> <p>b — That the testimony as to the selection of the exemptions was clearly inadmissible; it appearing that the transaction occurred several days after the sale, and after the attachment; that the vendor made no claim to the goods, but, after the levy of the attachment, the defendant sought him out, and informed him that the stock was being seized as his property, and that under the statute he was entitled to his exemptions, and that, if he did not select them, it was the defendant’s duty to do so for him; that thereupon the vendor selected the goods, and they were turned over to him by the defendant; and that whatever was done, was done at the instance of the defendant.</p> <p>2. A request by the plaintiff for an instruction that if the jury should find that the purpose of-the vendor in making the sale was to raise money to pay his creditors, and not to defraud them, the plaintiff was entitled to a verdict, should have been granted, there being evidence tending to support that theory.</p> <p>3. The burden of proof of fraud was upon defendant, and plaintiff was not called upon to anticipate such defense, and call all of his witnesses in the first instance; and it was improper for the defendant’s counsel, on opening his case to the jury, to state that certain witnesses were, and had been during the proceedings, that afternoon, in the court-room, and had not been called by the plaintiff.</p> <p>4. The suit having been commenced on the day of the attachment, before an inventory had been made, and before the exemptions were selected by the vendor and set aside to him, plaintiff’s contention that, in any event, he was entitled to a verdict for their value, is untenable, as he must rely upon a conversion as of the date when his suit was launched.</p>

<p>Malicious prosecution — Termination of criminal proceeding — Probable cause — Evidence—Advice of prosecuting attorney.</p> <p>1. The defendant in a suit for malicious prosecution assigned as error the failure of the plaintiff to show a determination of the criminal case, for the reason that a writ of mandamus requiring its reinstatement after the information had been quashed had not been formally served on the circuit judge when the prosecuting attorney entered a nolle prosequi. And it is held that the plaintiff was in no way responsible for the non-service of the writ; that he could not compel the prosecuting attorney to file it, and if that officer saw fit to waive its service, and enter the nolle prosequi, after obtaining leave of the court, the case could not again be revived.</p> <p>2. The supervisor of a township was arrested on the charge of having willfully neglected to require from a resident tax-payer a statement of his taxable property, and after the determination of the case he sued the complaining witness for malicious prosecution. The only witness, aside from the plaintiff, who positively knew whether the plaintiff had endeavored to procure such a statement, was the tax-payer himself, and he testified that he had no recollection of having had any conversation with the defendant, prior to the arrest of the plaintiff, relative to plaintiff’s having left a statement with him to make out, and that he did not think that he had such a conversation. The defendant offered testimony tending to show that the tax-payer had stated to one Knowles that he was not required by plaintiff to furnish the statement. And it is held that it was at least a question for the jury as to whether the defendant was justified in making the complaint without making inquiry, direct, of the- only person other than the plaintiff who was cognizant of the facts.</p> <p>3. The defendant testified that he talked with the tax-payer upon the subject, and was informed that the plaintiff did not ask for any statement of the tax-payer’s taxable property, and that he communicated this fact to the prosecuting attorney. And it is held that, if this was true, it was the most important fact which was stated to the prosecuting attorney to form a. basis for his judgment; that, the tax-payer having testified that, according to his recollection, he never made any such statement to the defendant prior to .the arrest of the plaintiff, it would follow, if the jury accepted this testimony, that the defendant did not fairly disclose the facts, and only the facts, within his knowledge, to the prosecuting attorney, and that it was a question for the jury as to whether he did or did not. 1</p>

<p>Appeal from Wayne. (Hosmer, J.) . Argued April 6, 1894. Decided June 2, 1894.</p> <p>Bill for partition. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Ogemaw. (Simpson; J.) Argued April 11,. 1894. Decided June 2, 1894.</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

(Daboll, J.) Submitted on briefs April 11, 1894. Decided June 2, 1894. Bill to restrain defendant from interfering with complainant's fence, trees, and sidewalk. Complainant appeals from a decree dismissing his bill. The facts are stated in the opinion.

<p>Deed — Delivery in escroto — Evidence.</p> <p>1. Complainant filed a bill to compel the delivery to her of a deed executed to her by her father shortly before his death, and delivered to the defendant, to be delivered to complainant at the death of her mother, which had since occurred. And it is held that if the deed was in fact delivered to the defendant by the grantor before his death, to be thereafter delivered to complainant, this would constitute a good delivery; citing Thatcher v. St. Andrew's Uhurch, 37 Mich. 264, and cases cited.</p> <p>2. The statements of the father, made in the absence of the defendant, that the deed was delivered to the defendant by him upon the condition stated, being admissions made by a party with whom the defendant was in privity, and relating to a fact provable by parol, were competent evidence.</p>

<p>Error to Muskegon. (Dickerman, J.) Argued April 12, 1894. Decided June 2, 1894.</p> <p>Replevin. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Taxes — Validity of deed — Subpoena— Jurisdiction— Conclusiveness of deed.</p> <p>Plaintiff brought ejectment, basing his right to recover upon a tax deed,for the year 1887. The defendants are husband and wife, and resided upon the land, which was owned by the wife, but assessed to the husband, upon whom alone the subpoena, issued upon the filing of the Auditor General’s petition, was served. The wife did not appear. And it is held’:</p> <p>a — -That the court obtained no jurisdiction as to the wife, and the deed is therefore void as against her; citing Fowler v. Campbell, ante, 398.</p> <p>b — That the Legislature has attempted to have questions in regard to the validity of taxes settled before sale, by an adjudication in a judicial proceeding, and that the first requisite is jurisdiction of the person to be bound by the decree.</p> <p>c — That section 67 of the tax law of 1889 (3 How. Stat. § 1170g6), which provides that the deeds issued by the Auditor General “shall convey an absolute title to the land sold, and be conclusive evidence of title in fee in the grantee, subject, however, to all taxes assessed and levied on such land subsequent to the taxes for which the same was bid off, and the deed shall so state,” of necessity determines the nature of the title conveyed by a valid sale and deed, and that it is not within the power of the Legislature to deny the right to defend title against a tax deed.1</p>

(Frazer, J.) Argued April 11 and 12, 1894. Decided June 2, 1894. Proceedings to enforce a lien under the water-craft statute. The intervening defendant brings error. The facts are stated in the .opinion.

<p>Appeal from Clinton. (Daboll, J.) Argued April 27,. 1894. Decided June 2, 1894.</p> <p>Bill to restrain the construction of a drain. Complainant appeals.</p> <p>The facts are stated in the-opinion.</p>

<p>Railroad companies — Killing stock — Depot grounds.</p> <p>1. A railroad company is not required to make a formal separation or dedication of its station grounds, nor to put up notices of their limits, especially in a new and unsettled country.</p> <p>2, Station grounds cannot be limited to the territory within the switches, and at least as much of the main line and grounds outside of the switches as is in actual use for reaching the side tracks within the switches is a part of the station grounds, to which the statutory requirement to fence does not apply. 1</p>

<p>Error to Marquette. (Stone, J.) Argued May 1 and 2, 1894. Decided June 2, 1894.</p> <p>Ejectment. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Argued May 1, 1894. Granted June 2, 1894. Eelators applied for mandamus to compel respondent to dissolve an injunction. The facts are stated in the opinion.

<p>Assignment for benefit of creditors — Preferences — Validity of mortgages.</p> <p>1. Where attaching creditors seek to show that instruments executed by their debtor to secure other creditors legally transfer an absolute title in trust for their benefit, they must build up an assignment valid upon its face to convey the absolute title to the trustee, before they can demolish it for its preference of said particular creditors.1</p> <p>2. The character of such an instrument cannot depend upon what the trustee does after he takes possession of the property. If he does things which the instrument gives him no authority to do, it will be at his perfil, but the rights of creditors cannot be lost by' his notion of his powers.</p> <p>,3.‘ The law does not require a debtor to make an assignment for the benefit of creditors. He may compel each creditor to collect his debt by process of law. He may use his property in the payment of preferred debts, either by its sale and the application of the proceeds to such payment, or by selling the property directly to the creditor in extinguishment of the debt, in whole or in part. He may mortgage, pledge, or otherwise secure the creditor. But he must not assign to a trustee for the benefit of creditors unless he assigns all of his property, and he must not in such case prefer creditors, and, if he does, his attempt will be a failure, regardless of his intentions.</p> <p>4. A school furniture company, having lost its entire plant by fire, conveyed its real estate and mortgaged its personal property and choses in action, including its claims for insurance, in trust, to secure certain of its creditors. The deed contained no defeasance, but required the grantee to take possession of the property and receive the rents; to sell the same, in bulk or in parcels, in such manner and at such times, for cash, as would enable him to realize the most money therefor; to pay the taxes, and keep the property insured; and from the proceeds of such sales, and the proceeds of the mortgaged assets, to pay, first, his expenses as trustee, and a reasonable compensation for his services, and, with the remainder, to pay in full the secured claims,’ if the fund should be sufficient for that purpose, and, if not, to pay the same pro rata, and return the surplus, if any, to the corporation. The trustee accepted the trust, and, after entering upon its performance, the property was attached by certain unsecured creditors, who, in a suit brought by the trustee to foreclose both instruments as mortgages, defended upon the ground that they attempted to transfer the absolute title to all of the corporate property, in trust for the payment of the claims of certain preferred creditors, and were therefore void under the assignment statute. And it is held that, as between the parties, the deed was a mortgage; that the corporation could pay the indebtedness, . and compel a reconveyance, and, if it did not, any attempt by the trustee to sell and convey the land would be futile, without foreclosure, which a court of equity might properly decree in a suit between the parties. And it is further held that the instrument does not convey an absolute title as against creditors, and that there is nothing to prevent creditors from reaching the equity of redemption.</p> <p>5, The chattel mortgage was to be void upon the payment by the mortgagor, within 10 days from its date, of the mortgage debts. The mortgagee was authorized to take possession of the property on the execution and delivery of the mortgage, and was given power to collect, settle, or compromise, by suit or otherwise, all of the demands and choses in action, capable of collection, covered by the mortgage; to insure such of the property as he might deem wise; to gather together the property, and realize the most possible out of that portion saved from the fire, and to expend such sums as might be necessary for its care and preservation, including its repair and putting it in condition for sale. And it is held that none of these-things made the title absolute in the mortgagee, which seems-to be involved in an assignment for the benefit of creditors.</p>

<p>Error to Ingham. (Person, J.) Argued January 5, 1894. Decided June 16, 1894.</p> <p>Replevin. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>