Volume 104 — Michigan Reports

(Hosmer, J.) Appeal from an order of the probate court granting the petition of a legatee for the payment of a legacy or the removal of the executrix. Petitioner brings error from an order of the circuit court reversing the order of the probate court. The facts are stated in the opinion.

<p>Malicious prosecution — Probable cause — Burden of proof — Instructions to jufy — Embezzlement.</p> <p>1. In an action for malicious prosecution, the burden of proof is upon the plaintiff to show want of probable cause.</p> <p>± A prima facie case may be made by showing plaintiff’s discharge, but it is not conclusive.</p> <p>3. Where there is no dispute as to the facts, want of probable causéis a question of law to be determined by the court.</p> <p>4. Where the evidence as to the facts claimed by the plaintiff to-show want of probable cause is conflicting, it is the duty of' the court to instruct the jury clearly what facts, when established, will justify a finding of want of probable cause, and a, general charge is not sufficient.</p> <p>5. A trusted employé, coming to the conclusion that his services were to be dispensed with before the expiration of the year for which he was hired, discounted a note received from a oustomer, and which he should have deposited to his employers’ credit, at a bank outside of the State, and appropriated a portion of the money in payment of his unearned salary, whereupon his employers caused his arrest on a charge of embezzlement. And in an action for malicious prosecution thereafter instituted by the employé it is held that the court should have instructed the jury that want of probable cause was not established by the evidence, but, on the contrary, that it did establish probable cause.</p> <p>6. The existence of probable cause being thus established, the motives of defendants in causing the arrest of plaintiff are immaterial, and the fact that they offered to refrain from> such prosecution if plaintiff would repay the money he had', misappropriated is not sufficient to establish want of probable-, cause.</p>

(Hosmer, J.) Appeal from an order of the probate court denying the right of the wards of the appellant to share in the distribution of the estate of their granduncle. The guardian brings error from a judgment of the circuit court affirming the order appealed from. The facts are stated in the opinion.

<p>Appeal from St. Joseph. (Loveridge, J.)</p> <p>Bill for specific performance of a land contract. Both parties appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Taxes — Bank stock — Liability of cashier.</p> <p>1. Section 33 of the tax law of 1889, which provides that, upon demand being made by the treasurer upon the cashier of any bank for the payment of any tax assessed upon the shares of its capital stock, it shall be the duty of the cashier to pay said tax, and charge the same against the shares of stock so assessed, imposes upon the cashier an official, and not a personal, obligation.1</p> <p>:2. Upon the making of such demand it becomes the duty of the bank to pay the tax demanded, and, if the performance of said duty is to be enforced by an action at law, the suit should be brought against the bank, and not against the cashier.</p> <p>:S. Whether or not an action at law against the bank is a proper procedure to collect such tax — gucere.2</p>

Rehearing, by order of the court, of mandamus case reported in 90 Mich. 592. The facts are stated in the several opinions.

(Padgham, J., presiding.) Bill to enjoin defendant from maintaining his dam at a -certain height. Complainants appeal. 'The facts are stated in the opinion.

Clair. (Vance, J.) Petition to set aside a sale and deed of certain lands for ■the taxes of 1889. Eespondent Boberts appeals. The facts are stated in the opinion.

<p>Equity pleading — Quieting title — Opening case for further proofs —Tax deed.</p> <p>1. The bill in a suit to quiet title charged that the complainants’’ title was derived under a tax deed issued to them by the Auditor 'General. And it is held that, if the defendants desired to impeach the prima facie valid title set up in the-bill, they should have set forth specifically in their answer-facts which, if proved, would defeat the tax sale.</p> <p>2. Upon the petition of the defendants, which failed to set forth. the facts sought to be proved, the case, which had been submitted, was reopened, and defendants were permitted to introduce proofs to impeach the validity of the tax deed. And. it is held that the practice pursued was so far irregular and unwarranted that the decree granted the defendants ought not. to stand.</p> <p>3. Under the statute in force in 1875 (Acts No. 140 and 197, Laws of 1873) which provided that the judge of probate should receive an annual salary in full for all services rendered, to be-fixed by the board of supervisors at a sum not exceeding SI,500, except in the county of Wayne, where it should be-$2,750, an increase by the board of supervisors of the salary of the judge of probate, which had been fixed at a previous-session of the board, and the including of such increase in the tax levy for said year, will avoid -a tax deed issued upon the sale of land for the taxes assessed thereon for said year.</p>

Error’to Leelanaw. (Ramsdell, J.) Case. Plaintiff brings error from order quashing capias proceedings. The facts are stated in the opinion.

<p>Attachment — Conversion by officer — Fraudulent conveyances.</p> <p>1. A sheriff who sells a portion of a stock of goods which he has seized under a writ of attachment, and permits the plaintiffs, on giving him a bond of indemnity, to remove the remainder of the goods beyond the jurisdiction of the court in which the attachment suit is pending, becomes a trespasser ab initio, and is liable in trover for the conversion of the property.</p> <p>2. The sheriff, being unable to justify under his writ, is not in a position to attack the bona fides of a sale of the goods to the plaintiff by the attachment debtor prior to the levy of the writ.</p>

(Newton, J.) Bill for the specific performance of a land contract;. Complainant appeals. . The facts are stated in the opinion.

(Peck, J.) Bill to reform a deed and mortgage so as to except from their operation a portion .of the land described therein, which had been previously conveyed to a third party, and-to foreclose the reformed mortgage. Complainant appeals- The facts are stated in the opinion.

<p>Error to Genesee. (Newton,, J.)</p> <p>Negligence case. Defendant brings error.</p> <p>'The facts are stated in the opinion.</p>

Motion by the receiver of the defendant bank for leave to apply to the circuit court for Ingham county, in chancery, for a rehearing.- The facts are stated in the opinion, and in 103 Mich. 109.

<p>_Married woman — Liability upon guaranty of note — Principal and agent.</p> <p>-A wife, to whom her husband had assigned a non-negotiable note, at his request, and without consideration, guaranteed the payment of the note to bearer, and delivered it to her husband, to be used by him in the payment of his own debts. The husband discounted the note at a bank, upon the representation that his wife was pecuniarily responsible and that he desired to use the proceeds of the note- for his own purposes. He paid a draft and an account which the bank held against him for collection, and used the remainder of the money, except $100, which he deposited with the bank to his wife’s credit, in the payment of his debts. And it is held in a suit by the bank upon the guaranty of payment that, if any inference of agency could be drawn from the possession of the note by the husband, it was repelled by his proposed application of the proceeds, made known to the bank officers before the discount; and that the bank cannot say that the 'note was discounted for the wife’s benefit.1</p>

<p>Landlord■ and tenant — Eviction—Damages—Evidence.</p> <p>1. In trespass by a lessee for his eviction from the leased premises, the lessor claimed that the lessee had surrendered his lease, which was denied by the lessee. The lessee was permitted to show on the cross-examination of one of the lessor’s witnesses, who had testified to the admission by the lessee of such alleged surrehder, that the witness had received a certain sum from the lessor by reason of his agreement to vacate other lands leased to him, and which, as also the premises leased to the plaintiff, were afterwards sold by the lessor, And it is held that the evidence did not tend to negative the alleged surrender by the plaintiff of the leased premises; that wh'at the lessor paid to the witness in order to effect a sale of his lands was not competent evidence to show what the land was worth to the witness, or what damages the plaintiff had sustained by reason of the eviction; and that it was error to admit the testimony.</p> <p>.2. At the time of his eviction, the lessee had occupied the leased premises,for three years, and had used them for market gardening. The term of the lease was five years. There was no evidence tending to show that the lessee was forced to remain idle for the remainder of the term, but, on the contrary, it ••appeared that he thereafter worked upon his own and other rented land. And it is held that the measure of his damages was the fair average value of the use of the land, less the rent agreed to be paid therefor.</p> <p>.8, Proof of the profits actually realized by the lessee during his three years’ occupancy was competent, as tending to show the value to him of' the leased premises.</p> <p>4. The testimony of the lessee as to the probable yield of his strawberry patch and its probable market value, that he intended to -crop the land with certain crops, and as to what, in his opinion, the value of the crops would be, as also the testimony of others as to what the land planted to garden vegetables would yield, was incompetent, because too specu- . lative.</p>

<p>Sale of land — Agreement to pay incumbrances — Action by grantee for reimbursement.</p> <p>Where, on an exchange of lands, one of the grantors, whose land is mortgaged, agrees to pay a certain portion of the mortgage debt, the remainder of which is assumed by his grantee, it is immaterial, as affecting the liability of the grantor to reimburse the grantee for money by him paid on said mortgage debt in excess of the amount by him assumed, whether or not the grantor agreed to apply a certain fund in partial payment of said debt.</p>

<p>Partnership — Contract by one member of firm — Evidence.</p> <p>-At the time one member of a firm of newspaper publishers made a contract for advertising, nothing was said about the existence of the partnership. And, in a suit by the firm upon the contract, in which the partnership is established, it is held that the plaintiffs need not prove that the defendant understood, when he made the contract, that plaintiffs were partners.</p>

<p>Error to Monroe. (Kinne, J.)</p> <p>Negligence case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Kent. (Grove, J.)</p> <p>Assumpsit. Defendant Webber brings error.</p> <p>The facts are stated in the opinion.</p>

(Lane, J.) Summary proceedings to recover the possession of leased prfemises for non-payment of rent. Complainant brings error. The facts are stated in the opinion.

<p>Malicious prosecution — Probable cause — Question for jury — Damages — Evidence.</p> <p>1. Where, in a suit for malicious prosecution, the facts are undisputed, want of probable cause is purely a question of law? citing Huntington ’v. Gault, 81 Mich. 144, 155.</p> <p>2. In a suit for malicious prosecution in causing plaintiff’s arrest for engaging in the business of selling spirituous and intoxicating liquors without having paid the 8500 tax and posted the reeeipt and notice as required by law, the proof relied, upon to sustain the complaint was that the defendant had sent a third party to the plaintiff to buy whisky, which he did, bringing it to the defendant in a colored bottle furnished for that purpose, and that, on tasting the contents of the bottle the next day, it was found to be whisky. The plaintiff denied selling any whisky to said party, but admitted that he sold him light wine, made from native grapes, and claimed that, while he was not authorized to sell whisky, he had a “ beer license.” .And it is held- that a request on the part of the defendant for an instruction that there was probable cause for making the complaint was properly refused, it being a question for the jury.</p> <p>S, It was competent for the plaintiff under his declaration (which averred that, "by reason of said prosecution, his credit was impaired so that his creditors demanded security for their debts, and he was obliged to mortgage his property to give such security) to show that plaintiff was a merchant; that he bought goods in a certain city; that he was indebted to several parties for goods; that said parties, on hearing of the pendency of the charge, refused him further credit, and required a chattel mortgage, which he was obliged to give in order to avoid being sued.</p>

<p>Appeal from Clinton. (Daboll, J.)</p> <p>Bill to foreclose a mortgage. Complainants appeal»</p> <p>The facts are stated in the opinion.</p>

<p>.Railroad companies — Injury to trespasser — Jumping from train— Proximate cause — Contributory negligence.</p> <p>_A youth 18 years of age, upon, being detected by the conductor of a passenger train upon which he was stealing a ride, refused to pay the required fare, and, upon the conductor’s stating that he would turn him over to an officer at a certain place several stations distapt, jumped from the rear platform of the last car, while the train was running at a high rate of speed, and was killed. And it is held that the statement of the conductor cannot be said to have been the proximate cause of the injury, and, furthermore, that the decedent was guilty of such negligence as would bar a recovery by the administrator of Ms estate for his death.</p>

<p>Chattel mortgage — Affidavit of renewal — False representations of mortgagee — Conditional sale — Replevin.</p> <p>1. A dealer in wagons, carriages,-and agricultural implements mortgaged to the plaintiff, who was cashier of a bank of which the mortgagor was a customer, his entire stock and- all additions thereto, to secure the payment of his present and future obligations to the bank. The bank continued for more tharn two years after the execution of the mortgage to discount, paper for the mortgagor, and furnished him other financial! assistance, when he made an assignment for the benefit off creditors, and the receiver, appointed upon the failure of theassignee to qualify, took possession of the assigned property»,, which was replevied by the mortgagee. And in affirming a. judgment in favor of the plaintiff it is held:</p> <p>a — The defendant cannot object to said recovery on the ground that the mortgage was taken in the individual name of the plaintiff, it appearing that its purpose was fully understood, not only by the mortgagor, but by the creditors, that-all of the business was done through the plaintiff, and that no one has been prejudiced by reason of the mortgage not-running directly to the bank.</p> <p>b — Affidavits of renewal, stating that there was due and, unpaid on the mortgage the sum for which the same was-given, and that the interest of the mortgagee in the chattels-described in the mortgage remained unchanged, were sufficient» it not being necessary to state therein the actual amount off the matured indebtedness at the time the affidavits were-made, so long as the obligations, both matured and unmatured», exceeded that sum.1</p> <p>c — Representations made by the plaintiff, upon inquiry made by other creditors, that the mortgagor was doing a good business, and would be able to meet his obligations, were opinions, merely; and, it not appearing but that such opinions were •given in good faith, the rights of the plaintiff are not affected thereby.</p> <p>'2. After the execution of the mortgage, a carriage company delivered to the mortgagor wagons and carriages under written contracts, by the terms of which the title thereto was to remain in the vendor, and it was urged that the plaintiff had no right to take said property under his writ. And it is held that the right to the possession of said property was at the date of the assignment in the mortgagor; that he cannot be said to have had no interest in said property; that whatever interest he had passed to the plaintiff under the mortgage, and ■whatever payments the mortgagor may have made on the contracts inured to the benefit of the plaintiff; that the receiver took through the mortgagor, and subject to the mortgage, and he cannot be allowed in said suit to represent the carriage company, whose claim is adverse to that of the receiver and the creditors.</p>

<p>Error to Gratiot. (Daboll, J.)</p> <p>Ejectment. Defendant brings error.</p> <p>The facts are stated in the opinion, and in 92 Mich. 136.</p>

<p>Error to Gratiot. (Daboll, J.)</p> <p>Replevin. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

(Moore, J.) Trespass. Defendant Albertson Potter brings error from .a judgment for 'costs in favor of the plaintiff. The facts are stated in the opinion.

(Russell, J.) Trespass. Plaintiff brings error from a judgment in. favor of defendant for costs. The facts are. stated in the opinion.

<p>Appeal from Kent. (Grove, J.)</p> <p>Bill to quiet title. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

(Lane, J.) Appeal from the disallowance of a claim by commissioners. The estate brings error. The facts are stated in the opinion.

(Adsit, J.) Relator applied to the circuit court for mandamus to compel respondent to set aside an order requiring relator to appear before him and submit to an examination concerning his property, and brings certiorari to review order denying the writ. The facts are stated in the opinion.

<p>Error to Alpena. (Kelley, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Principal and agent — Bailment—Trustee—Statute of limitations— Interest.</p> <p>1. On the purchase of a farm, it was agreed between the grantor and grantee that a certain portion of the money which the grantee had secured by mortgaging the farm to a third party • should be retained by the agent who made the loan, and be by him used in paying off a prior mortgage when due, or whenever the mortgagee would receive his money. If any surplus remained, it was to be paid to the grantor to apply upon the purchase price of the farm, upon which the remainder of the loan had been applied. Either party had the right to terminate the agreement at any time. The grantee sold the farm, subject to the mortgages, and it was agreed between him and his grantor and the purchaser, and the clerks of the agent, who still held said deposit, he being absent at the time, and said clerks having sole charge of his business, that the arrangement under which the money was originally deposited should continue in force. And it is held that the clerks had authority to make said agreement.</p> <p>2. One of said clerks, during the absence of the agent, was induced by a brother of the purchaser, whom he falsely personated, to pay the money to said brother. And, in a suit by the purchaser against the agent to recover the money deposited, it is held that the relation between the agent and said purchaser was not that of bailee and bailor, but one of trustee and cestui que trust, and that the payment of the money by mistake to plaintiff’s brother did not discharge the agent from liability.</p> <p>3. The purchaser not being entitled to the money until he had either paid the mortgage or demanded an accounting from the agent, the statute of limitations did not begin to run until the making of such demand.</p> <p>4. The land was purchased with funds belonging to the estate of the plaintiff’s father, and, while the title was taken and held in the name of the plaintiff, his brother was entitled to the use of said money, and was therefore entitled to the use and benefit of the farm, which he received. And it is held that interest upon the money sued for should not be allowed to the plaintiff.</p>

<p>Bills and notes — Joint maker — Suits against joint defendants residing in several counties — Service of process.</p> <p>1. Where a third person not the payee indorses a note prior to its delivery, and before any advances are made thereon, his liability to the person who advances the money is that of a joint maker; citing Rothschild v. Grix, 31 Mich. 150; Herbage v. McEntee, 40 Id. 337; Fay & Co. v. Jenks & Co., 78 Id. 312.</p> <p>2. On its face, such a note imports that, for the purpose of adding to its credit, the indorser at its inception gave his name as promisor of payment, and made himself liable as a joint maker, and, in the absence of controlling facts, the transaction stands as its own interpreter; citing Herbage v. McEnteer 40 Mich. 337.</p> <p>3. Such a case falls within How. Stat. § 7316, which provides that when an action on any contract is brought in the circuit court against two or more joint defendants who are original parties thereto, and not merely indorsers or- guarantors, one or more of which defendants do not reside or are not found in the county where suit is brought, and service of process is had on one or more of the - defendants in said county, or property in his or their possession is attached in said county, the plaintiff may sue out one or more writs of summons, dr other writ whereby such suit was commenced, directed to the sheriff of the county where such unserved defendants may be found, for service upon them, or he may cause a copy of the declaration filed in such cause, with notice of the rule to plead, to be served on such unserved defendants in any other county in this State. 1</p> <p>4. The statute requires that, as a condition precedent to the service in another county of said writ or declaration, proof of the service of the original writ or of said declaration upon one or more of the defendants in the home county shall be filed in the suit, and the absence of such proof is not cured by a return afterwards made showing actual prior service in the home county.</p>

<p>Vicious animals — Evidence—Admissions of employé — lies gestae.</p> <p>In a suit to recover for injuries received by being kicked by a bay mare belonging to the defendant, while plaintiff was inspecting her with a view to her purchase, evidence on the part of the plaintiff that an employé of the defendant, who had charge of the barn in which the injury was received, testified on the trial of the case in justice’s court that there was a bay mare in the barn at the time that was a kicker, is inadmissible.</p>

<p>Mutual benefit associations — Action upon membership contract— Construction of by-laws — Organization of firemen — Retired members of department.</p> <p>1. Where the person designated by a member of a benefit association, pursuant to its by-laws, to receive the death-benefit, for the use of the wife and children of the member, declines to act, suit to recover the death benefit is properly brought by the administrator of the estate of the deceased member.</p> <p>'2. Where a mutual benefit association disclaims all liability upon a membership contract which provides for the payment of the proceeds of a single assessment upon its members, suit is properly instituted to test that question; citing Burland v. Association, 47 Mich. 424; Bates v. Association, 47 Id. 646; Silvers v. Association, 94 Id. 39.</p> <p>•3. The by-laws of a firemen’s benefit association provided that any member who should be retired by the fire commissioners by reason of 25 years' service as a fireman might still continue a member of the association, with all of its rights and benefits, by paying the same dues and assessments as an active member, and that upon the death of any active or retired member, there should be collected from each surviving active or retired member a specified amount for the use of the beneficiary. And it is held that the placing of a member upon .the retired list before the expiration of 25 years’ service, by reason of injuries received in the line of his duty as a fireman incapac- ' itating him for active service, does not terminate his membership in the association.</p>

<p>Error to Kent. (Adsit, J.)</p> <p>Replevin. Defendant brings error.</p> <p>Tbe facts are stated in the opinion, and in 97 Mich. 459.</p>

Mandamus. Belator applied for mandamus to compel respondent to-quash an information against him for adultery. The facts.' are stated in the opinion.

<p>Witnesses — Matters equally within knowledge of decedent — Gift— Consideration.</p> <p>1. On the trial of a suit upon a note assigned to the plaintiff by a daughter of the payee after his death, the daughter, who was a sister of the defendant, was permitted to testify that her father during his last illness gave her the note. And it is held that her testimony was not incompetent under 3 How. Stat. § 7545, which prohibits the “opposite party,” including “the assignors or assignees of the claim,” in a suit prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, from testifying at all to matters which, if true, must have been equally within the knowledge of the decedent.1</p> <p>2. The fact that the donee of the note was a daughter of the donor, and the circumstances under which the note was given to her, supported the transfer, and it was unnecessary to show a further consideration.</p>

<p>Error to Wayne. (Frazer, J.)</p> <p>Garnishment proceedings. Defendant brings error.</p> <p>The facts are stated in the opinion, and in 97 Mich. 414,</p>

(Wilber, J.) Bill to set, aside a deed on the ground of fraud and ■duress, or, if not set aside, to hare it decreed to be a mortgage, and for an accounting. Cofnplainant appeals. The facts are stated in the opinion.

<p>Constitutional law — Class legislation — Building and loan associations — Ultra vires — Premium—Foreclosure of mortgage — Forfeiture of stock — Husband and wife — Tenancy in entirety.</p> <p>1. Act No. 50, Laws of 1887,1 which provides for the incorporation and regulation of building and loan associations, is not unconstitutional as class legislation.2</p> <p>2. Certain provisions of the original act are construed as follows: a — The fact that, on making a loan, the joint obligation of the member to whom the loan is made, and another, who is not a member, is taken, or that the loan is secured by a mortgage executed by a third person, will not open the defense of ultra vires, under section 8, which provides that “no loan shall be made by said corporation except to its own members, nor in any sum in excess of the amount of stock held by such members borrowing.”</p> <p>b — The receipt or retention by the association of a premium out of the loan is not in excess of the'powers of the corporation under section 8, which provides that “the board of directors shall hold such stated meetings as may be provided by the by-laws, at which the money in the treasury, if more than the amount fixed by the by-laws as the full value of a share, shall be offered for loan in open meeting, and the stockholder who shall bid the highest premium for the preference or priority of loan shall be entitled to receive a loan of not more than the amount fixed by the by-laws as the full value of a share of stock (less the premium bid) for each share of stock held by said stockholder.”</p> <p>c — Under section 10, which provides that in the event of the repayment of a loan by a borrower before the expiration of the eighth year after the organization of the association, or the . date of issue of the series of stock in such association on which the loan may have been made, there shall be refunded to such borrower one-eighth of the premium paid for every year of the said eight years then unexpired, a borrower has no right to a deduction on account of premium paid, except in case of a voluntary payment of his debt before maturity.</p> <p>d — Section 9, which provides that, in case of non-payment of installments. or interest and fines by borrowing stockholders for the space of six months, payments of principal and interest and fines, without deducting the premium paid or the interest thereon, may be enforced by proceedings against their securities, according to law, upon the order of the board of directors, was not beyond the power of the Legislature to enact.</p> <p>8. The contention that the premium should have been computed upon the amount of money received, and not on the face of the loan, is untenable, where the borrower understands in advance that the latter mode of computation is to be followed, and accepts the money and executes the securities'after the premium has been so computed, and the amount thereof deducted from the face of the loan.</p> <p>4. A mortgage executed by husband and wife upon land owned by them as tenants in the entirety, to secure a loan made to the'husband alone, is valid.1</p> <p>5. A wife joined with her husband in the execution of a bond given to secure a loan made to him alone. The loan was-further secured by a mortgage upon land owned by both as tenants in the entirety. A bill was filed to foreclose the mortgage, in which the bond was set forth, but a personal decree was asked for as against the husband only. And it is held that the wife was not personally liable on the bond, and that it was competent for the court to enter a personal decree against the husband, without reforming the bond or the pleadings.1</p> <p>6. The bond given by a member of a building and loan association, on making a loan of the association, provided that, in case of default in its conditions, the shares of stock held by the member, which were transferred as collateral to the bond, might be declared forfeited to the association as for non-payment of dues, and should thereupon revert to the association as forfeited stock, and the withdrawal value' thereof, at the option of the association, might be applied to the satisfaction of the indebtedness secured by the bond. And it is held that no formal foreclosure is necessary for the purpose of making such application; that it is contemplated that the payments on the stock, together with its earnings, shall remain in the hands of the association, and be applied, without foreclosure, to the reduction of the claim, — at least, at the option of the association.</p>

<p>Appeal from Wayne. (Lillibridge, J.)</p> <p>Bill to require defendant Sprague to discharge a lis jpendens. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Election of remedies — Trover—Pleading.</p> <p>A debtor secured Ms creditor by a bill of sale. The creditor, in violation of his agreement that in case of the non-payment of the debt he would sell the property at public sale, and, after satisfying his demand, pay the surplus to the debtor, sold the property at private sale, and refused to account for such surplus. The debtor sued the creditor in assumpsit to recover the surplus, and the case was dismissed for the failure of the debtor to give security for costs. The debtor then sued the creditor in trover for the same property. And it is held that the debtor, by suing in assumpsit, elected his remedy; that he thereby elected to treat the title to the property as in the creditor; and that this defense is admissible in the trover suit under the plea of the general issue alone.</p>

Joseph. (Loveridge, J.) Bill to restrain the rebuilding of a bridge in such a way as to prevent the passage of complainant’s boat. Complainant appeals. The facts are stated in the opinion.

<p>Error to Bay. (Maxwell, J.)</p> <p>Assumpsit. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

Joseph. (Yaple, J.) Bill by the heirs of a mortgagor to compel the discharge by the mortgagee of a mortgage claimed to have been paid by the administrator of the estate of the. mortgagor. Defendant appeals. The facts are stated in the opinion.

<p>Appeal from recorder’s court of Detroit. (Chambers, J.)</p> <p>Street-opening proceedings. Respondent appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Sale — Fraud of vendor’s agent — Evidence.</p> <p>1. Where the fact of the giving of an order for goods is not disputed, but the orderer defends upon the ground that he bargained for a smaller quantity of goods than that inserted in the order, which was signed upon the understanding that it was for the lesser quantity, it is competent for the orderer to testify to the conversation had with the agent when the order was taken, for the purpose of ascertaining whether or not the agent deceitfully inserted in the order a larger quantity of goods than that agreed upon.</p> <p>2. A sufficient foundation for the introduction of parol proof of the contents of a letter claimed to have been lost is laid by the testimony of the party to whom the letter was written’ that he is not in the habit of keeping his letters; that he looked in the waste-basket for the letter, but was too late, as it, with other letters, had been destroyed.</p> <p>3. In a suit to recover the purchase price of three great gross papers of pins which the plaintiff claimed to have shipped to the defendant upon his written order, the defendant claimed that the order, as given, was for three gross of pins, but that plaintiff’s agent fraudulently inserted the larger amount. And it is held that it was competent for the defendant to show, in support of his claim, that the order sued upon was grossly disproportionate to the business in which he was engaged; citing Optical Co. v. Treat, 73 Mich. 599.</p>

<p>Deed — Consideration—Parol evidence — Failure of title — Assumpsit —Pleading—Res judicata — Practice in Supreme Court.</p> <p>1. Plaintiff, after cutting and selling a portion of the timber on a parcel of land which he had purchased from the supposed owner, repurchased the land from defendant, who claimed to own the same, and received from him a warranty deed. After-wards a second claimant recovered a judgment against the purchaser of the timber for its value, and the plaintiff reimbursed the purchaser, who had paid the judgment, and then sued the-defendant in assumpsit for the purchase price of the timber, which he claimed was agreed upon at a sum distinct from that agreed to be paid for the land. No reference was made in the deed to said timber. And it is held that, the timber being personal property, the title thereto did not pass by the deed; that some other agreement was necessary for that purpose; and that the plaintiff was not precluded from showing the actual arrangement by the fact that the consideration for both the land and the timber was included in the consideration expressed in the deed.</p> <p>2. It is competent for the plaintiff to recover the purchase price of the timber under a common-count declaration.</p> <p>8. Upon the institution of the suit against the purchaser for the value of the timber, he notified the plaintiff in writing to appear and defend his title, and plaintiff gave the defendant a like notice, to which defendant paid no attention. And it is held that the defendant was tendered his day in court to test the question of his alleged title, in a suit in which it was involved, and, having failed to appear and defend said title, the judgment in that suit concluded him.</p> <p>4. A failure to except to an adverse ruling as to the admissibility of testimony precludes the raising of the question in the appellate court.</p>

Mandamus. Relators applied for mandamus to compel respondent to set aside an order overruling a plea to the jurisdiction of the court. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel the respondent to vacate an order denying its motion for the issuance of an execution against the individual members of a limited partnership association, under How. Stat. § 2366. The facts are stated in the opinion.

<p>Error to Wayne. (Frazer, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Public buildings — Failure to require bond from contractor— Material men.</p> <p>A manufacturer of brick who supplies a contractor, who has agreed to furnish the materials and erect a public building at an agreed price, with the brick used in the building, cannot be classed as a subcontractor, so as to deprive him of the protection of 3 How. Stat. § 8411a, which makes it the duty of public officers to require from a contractor for the erection of a public building a bond for the payment of all labor and material claims.1</p>

<p>Logs and logging — Evidence—Assignment of contract — Pleading— Damages — Quantum meruit.</p> <p>1. In an action to recover the balance claimed to be due upon a contract for sawing hard and soft wood logs, the defendant, in support of his claim that a large amount of the lumber was improperly and defectively manufactured by reason of the sawing of the logs indiscriminately with the same saw, introduced a witness whose testimony was to the effect that, by sawing indiscriminately all of the logs with the same setting of the saw, good lumber could not be manufactured. And it is held that it was proper to show in answer to this, not only that it was possible to make good lumber by this way of sawing, but also that good lumber was made.</p> <p>2. A contractor under a sawing contract, after sawing and piling the lumber within the time limited therefor, and after the lumber had been received and shipped by the contractee, assigned all his right, title, and interest in, to, and under the contract to .third parties, who brought suit to recover the balance due on the contract. The defendant, who sought to recoup damages by reason of the alleged improper manufacture of the lumber, contended that, under the assignment, the plaintiffs could not recover upon a quantum meruit, for the reason that they did not stand in the place of the contractor in all respects, he having only assigned to them his right, title, and interest in, to, and under the contract; that, if they had any right of recovery, it was upon the contract; that, if there was any substantial departure from the contract, no recovery could be had, and hence the plaintiffs must recover the whole amount claimed or nothing. And it is held that, conceding that a recovery could not be had upon a quantum meruit, -there is no difficulty in the plaintiffs’ position jnd their right to recover; that they had a valid assignment of the contract, and all the right, title, and interest which the contractor had therein; that the action was brought upon the contract, upon which, under the charge of the court, the recovery was based; that the contract had been fully performed, except, as claimed by the defendant, the lumber was not properly sawed and piled; and that plaintiffs had all the rights of recovery under the contract that the contractor would have had if no assignment had been made.</p>

<p>Error to Kent. (Grove, J.)</p> <p>Case. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Kent. (Grove, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The-facts are stated in the opinion.</p>

<p>Mechanic’s lien — Service of notice — Acceptance—Estoppel—Unrecorded deed.</p> <p>1. Where a land-owner, prior to the expiration of the time limited by the mechanic’s lien law of 1891 for the service upon him by posting of a copy of a claim of lien, and prior to the expiration of the time within which the claimant could file a new lien, signs an acceptance of service of a copy of such claim in lieu of such posting or other notice, he is estopped from objecting that the statutory service was not made. .</p> <p>2. Where, at the time of filing a bill to enforce a mechanic’s lien, the record title to the land appears to be in the defendant, the lien cannot be defeated by the recording of a deed of the land to the defendant’s wife, which purports to have been executed!, prior to the filing of the bill.</p>

<p>Error to Kent. (Adsit, J.)</p> <p>Assumpsit. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

(Simpson, J.) Petition to set aside a decree for the sale of certain lands in Alcona county for the taxes of 1889. Petitioner •appeals. The facts are stated in the opinion.

<p>Wills — Gharge upon realty — Lapsed legacy.</p> <p>1. A testator gave to his wife the use for her life of all his real and personal estate, and directed that a certain legacy, given to one of his sons as the sum which the testator considered equitably his due for services rendered, should be paid out of the personal estate on hand at the time of the wife’s death. The remainder of the personal property he bequeathed, share and share alike, to all of his children. The personal estate proved insufficient to pay the legacy. And it is held that the legacy was not a charge upon the real estate of the testator, which he specifically devised to the legatee and another son, subject to the payment of other legacies.</p> <p>2. The will provided that one of said legacies should be paid to the legatee in one year after the death of the testator and his wife. The legatee survived her father, but not her mother. And it is held that the legacy did not lapse, but became vested in the legatee upon the death of the testator, and descended to her heirs.</p>

<p>Sale — Breach of warranty — Parol evidence — Waiver—Practice in Supreme Court.</p> <p>1. A contract for the purchase of a windmill contained a warranty as to the manner of its erection and the making of repairs made necessary by defective manufacture. In a suit by the vendor tp recover the purchase price of the mill, the vendee was permitted to introduce evidence of conversations between himself and the vendor’s agent prior to the execution of the contract, tending to prove verbal warranties, and also a circular issued by the vendor in regard to its windmills. And it is held that, the vendor being liable only on the warranty contained in the contract, and no fraud being claimed in its execution, it was error to admit the testimony; citing Nichols, Shepard & Co. v. Crandall, 77 Mich. 401,</p> <p>2. The contract provided for 60 days’ notice by the vendee to the vendor to furnish defective or damaged parts of the windmill. In response to a notice that the mill did not comply with the contract, an agent of the vendor made certain repairs, which, as claimed by the vendor, put the mill in good condition. The notes sued upon were then executed, and no notice of any defect was afterwards given until the notes matured. And it is held that the plaintiff was entitled to • an instruction that if the agent believed the mill was in proper condition to comply with the contract, and so notified the vendee, and left with that understanding, and the vendee, without notifying the vendor, continued to use the mill until the notes, matured, such conduct would be a waiver of any defect in the mill and of the right to reject it; citing Turner v. Machine & Foundry Co., 97 Mich. 166.</p> <p>3. Assignments of error upon the admissibility of testimony will not be considered where no reference is made, either in the assignments or in the brief, to the pages of the record an examination of which is necessary to the investigation of the questions raised.</p>

Mandamus. Relator applied for mandamus to compel respondent to set aside an .order denying a retaxation of costs in an action of ejectment. The facts are stated in the opinion.

<p>Infants — Chattel mortgage — Estoppel.</p> <p>1. A chattel, mortgage given by a minor, whether void or voidable, is not enforcible as against the mortgagor during his minority;1 citing Corey v. Burton, 32 Mich. 30.'</p> <p>2. A minor mortgaged a horse belonging to his father, as also one purchased by himself, to secure the purchase price of the latter horse. Prior to the purchase the father had informed the mortgagee that his son had a horse similar to' the one owned by the mortgagee; that the son wanted to get a team, and would give the mortgagee a good deal for his horse if he would sell it. When the mortgage became due the father refused to surrender his horse, and it was seized under the mortgage, and the father replevied it. And it is held that there is nothing in the evidence to justify a finding that the father is estopped from asserting title to his horse.</p>

(Lillibridge, J.) Bill to restrain defendant from entering into a contract, for the construction of a school-house in the city of Detroit, complainants claiming to be the lowest bidders for such work. Complainants appeal. The facts are stated in the opinion.

<p>Master and servant — Negligence—Defective appliances — Expert testimony — Questions for jury.</p> <p>1. In an action by an employé for injuries received by the breaking of a saw, it is competent for witnesses who are shown to be familiar with such saws, and who have had large experience in their use, and know their strength," and -the force to which they are subjected, to testify that in their judgment the saw in question was suitable and safe for use.</p> <p>■2. The testimony on the part of the defendant tended to show that the plaintiff was not struck by a piece of the saw, as claimed by him, and that the saw, which had been mended, was suitable and safe for the use to 'which it was applied. A-nd it is held that the court properly refused to direct a verdict for the plaintiff, leaving to the jury only the question of damages.</p>

<p>Error to Kent. (Grove, J.)</p> <p>Assumpsit. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

(Kelley, J.) Relator applied to the circuit court for mandamus to compel respondent to execute certain bonds, and brings certiorari to review order denying the writ. The facts are stated in the opinion.

<p>.Railroad companiés — Fires—Contributory negligence — Condition of right of way. • .</p> <p>1. A wooden planing mill and the machinery used therein,' owned by the plaintiff, and standing within about 34 feet of defendant’s side track, were’ destroyed by fire communicated, as claimed by plaintiff, from one of defendant’s engines by reason of the negligence of its employés. The mill was built by plaintiff’s grantors, had a sheet iron roof, and had been idle for about 18 months at the time of the fire. Plaintiff sued to recover the value of the mill and machinery. And it is held that a request of the defendant for an instruction that, in so, constructing or maintaining said mill, the plaintiff was guilty of negligence per se, and could not recover, was properly refused. . . ;</p> <p>% The defendant removed a platform from the side, of the mill, and deposited the planks and timbers of which it was constructed into a ravine on defendant’s right of way, lying between the mill and the side track, and covered said material with sawdust and shavings. The plaintiff notified defendant’s-section foreman of the situation, and the foreman promised to-cover the material with cinders. A short time before the fire-plaintiff visited the mill, and found that the foreman’s promise had not been kept, and that the sawdust and shavings were scattered about on the top of the ground so that there was-danger from fire; and, although it was a dry time, he went away without leaving the mill in charge of any one except his-family, who lived two blocks away, and without notifying the-defendant, or taking any action to protect the property, and did not return again until after the fire. And it is held that-the defendant’s servants were responsible for the condition of the sawdust and shavings; that the plaintiff, when he left, had a right, in view of the promise of the foreman, to presume that the right of way would be put in a safe condition;, and that the court properly refused a request for an instruction that the plaintiff, in thus leaving his property without taking steps for its protection, or notifying the defendant of the-situation, was guilty of contributory negligence.</p>

<p>Habeas corpus proceedings.</p> <p>A writ of habeas corpus was directed to the sheriff of Kent county to inquire into the cause of the imprisonment and detention of petitioner. From the return it appeared that upon ex parte affidavits the judge of the superior court of Grand Rapids made an order that petitioner enter into a recognizance before the judge of the police court, in such sum as said magistrate should require, and with sureties to be approved by him, for the appearance of petitioner at said police court at a certain time to give evidence on the part of the people upon the examination of one Macard, held on a charge of perjury; that, pursuant to such order, ■ and o.n the same day, the police judge entered an order determining the amount of the recognizance, and providing that, in default of giving the same, petitioner be committed to the county jail until •such recognizance should be given, or until the determination of said prosecution, or until discharged. according to law; that petitioner was at once brought before such judge, and, on failure to comply with the 'order, a warrant of •commitment issued forthwith, by virtue of which warrant, and of others since issued in continuation .thereof, and based upon similar proceedings, petitioner had been imprisoned in the county jail for a period of five months.</p> <p>How. Stat. §§ 9472, 9473, 9475, authorize an examining ■magistrate to bind by recognizance all material witnesses against the prisoner to appear and testify, and, if satisfied by due proof that there is good cause to believe that any ¡such witness will not perform the condition of his recognizance unless other security be given, to order the witness to recognize, with] one or more sureties, for his appearance at court, and, on the refusal of any witness so to ■recognize, to commit him to prison, there to remain until he complies with the order or is discharged according to law. These provisions were modified by section 9453, ■which provides that it shall not be necessary in any criminal case for any witness to give bail for his appearance as a witness in such cause unless required to do so by the order of a judge of a court of record or a circuit court commissioner. The proceedings taken in this case were sought to be justified under the foregoing statutory provisions.</p>

<p>Error to Ionia. (Dodds, J., presiding.)</p> <p>Case. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

(Hosmer, J.) Bill to restrain the collection of taxes assessed for the construction of a sidewalk in front of complainant’s premises. Complainant appeals from decree sustaining demurrer. The facts are stated in the opinion.

<p>Confusion of goods — Evidence—Conversion by mortgagee — Estoppel — Pleading—New trial.</p> <p>1. A father moved a stock of goods valued at $1,300, which he claimed to own, to a neighboring city, where his daughter engaged in business. The daughter made large additions to said stock, and about seven months after such removal mortgaged the entire stock to a. firm of whom she had been purchasing goods. The mortgagees seized the goods, and the father sued in trover for their value., - On the trial plaintiff only claimed to recover for the' original stock of goods, but offered no testimony tending to show the amount or value of such portions of the original stock as remained at the time of the foreclosure, or that any of said goods were then on hand, and no attempt was made to show that such proof could not ' be made or that it was difficult to make it. And it is held that the presumption would be that the original stock would be reduced by sales, and that a verdict for the plaintiff for $800 was therefore merely conjectural.</p> <p>2. The original stock of goods was placed in and as a part of the business carried on by the daughter, and the goods were used as a basis for credit, to the knowledge of the father. The clear preponderance of evidence was in favor of the contention of the mortgagees that they had no notice that the father claimed an interest in the mortgaged property. And it is held that the motion, of the defendants for a new trial should have been granted.</p> <p>8. The defendants were entitled to avail themselves of the estoppel on the part of the plaintiff under the plea of the general issue; citing Eureka Iron & Steel Works v. Bresnahan, 66 Mich. 489.</p>

(Simpson, J.) ‘■Respondent was convicted of the crime of forgery, and 'sentenced to imprisonment in the State prison at Jackson for 3 years. The facts are stated in the opinion.

(Burlingame J.) Respondent was convicted of the crime of rape, and sentenced to imprisonment in the State prison at Jackson for 20 years. The facts are stated in the opinion.

Habeas corpus proceedings. Petitioner applied for the writ of habeas corpus to inquire into the cause of his detention in the Detroit House of Correction. The facts are stated in the opinion.

<p>Error to Kent. (Grove, J.)</p> <p>Negligence case. Defendants bring error.</p> <p>The facts are stated in the opinion, and in 97 Mich. 231.</p>

<p>Error to Muskegon. (Bussell, J.)</p> <p>Trover. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Chattel mortgages — Advances—Fraud—Burden of proof.</p> <p>1. Plaintiffs, as mortgagees, replevied the mortgaged property from attaching creditors of. the mortgagor. On the trial the testimony tended to show that the mortgage was given to secure an existing indebtedness and certain advances to be made to-the mortgagor, but these facts did' not appear upon the face of the mortgage. The court instructed the jury that the mortgagees had no right to place on file an instrument which bore upon its face a false statement as to their claim. And it is held that the jury would naturally infer from the language used that the mortgagees had no legal right to incorporate in, their Claim anything more than said existing .indebtedness, and that for this reason it'was error to refuse, on the request of • ■ the mortgagees, to charge further- that if the jury should findi that the mortgagees agreed, at the time they took the mortgage, to make said advances, and that the remainder of the sum secured by 'the mortgage was a valid, existing indebtedness due the mortgagees, the taking of the mortgage for the amount so to be advanced would not affect its validity.</p> <p>:2. In such a case the burden is upon the attaching creditors to show fraud in the transaction between the mortgagor and mortgagees.</p>

<p>Executors and administrators — Assets of estate — Estoppel—Trover.</p> <p>1. An executor has no power, on receiving from one of two residuary legatees a note which in fact belongs to the estate, but which the legatee claims to own as a gift from the testator, to authorize the legatee to collect the note and convert the proceeds to her own use.</p> <p>2. The collection of the note by the legatee in her own right, and the appropriation by her of the moneys collected, amount in law to a conversion, and the executor can maintain trover without demand against the legatee for the conversion of the note.1</p>

<p>Error to Kalamazoo. (Buck, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Wayne. (Donovan, J.)</p> <p>Assumpsit. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Oakland. (Moore, J.)</p> <p>Trespass for obstructing a highway. Defendant brings-error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Alpena. (Kelley, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Macomb. (Eldredge, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are-stated in the opinions.</p>

(Moore, J., presiding.) Plaintiffs instituted contempt proceedings against respondent for unlawful interference with the process and proceedings in an action at law, and bring certiorari to review the order of the court entered therein. The facts are stated in the opinion.

<p>Error to Calhoun. (Smith, J.)</p> <p>Petition for leave to pay a legacy. Petitioner brings •error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Iosco. (Simpson, J.)</p> <p>Negligence case. Defendant brings error.</p> <p>The ■facts are stated in the opinion.</p>

<p>Error to Alpena. (Kelley, J.)</p> <p>Eeplevin. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Practice in Supreme Court — Bes judicata — Corporate stock — Conversion — Damages—Evidence—Instructions to jury.</p> <p>1. If counsel desire a reargument of a question disposed of on a former hearing, they should move for a rehearing, as on a second hearing upon the same state of facts the question so decided is res judicata.</p> <p>2. In trover for a certificate of stock, the plaintiff’s declaration claimed damages for the failure of the defendant to deliver the certificate on demand. The court instructed the jury that if they should find that said demand was made, and that the defendant wrongfully refused to comply with it, but after-wards delivered the certificate to the plaintiff, the plaintiff was entitled to recover as damages the difference between the value of the stock when demanded and its value when delivered. And it is held that the instruction was correct.</p> <p>8. The evidence failed to show that the defendant, in refusing to deliver the certificate when first demanded, did not act in the honest belief that it had been burned with other records and papers belonging to the corporation; but there was testimony in support of plaintiff’s claim that, after the defendant, who was treasurer of the corporation, had found the certificate, he purposely kept it, denied that the plaintiff was entitled to the certificate under his contract with the corporation, which plaintiff claimed to have performed so as to entitle him to said certificate, and refused and neglected to call a meeting of the stockholders to pass upon the question. And it is held that, while the facts last stated, if established, would amount to a conversion, it was error so to instruct the jury as to cause them naturally to infer that the first demand and refusal constituted a conversion, notwithstanding the defendant might then have been acting in entire good faith.</p> <p>4. Upon the organization of a, mining company, an agreement was made between the company and one of its stockholders by which 8,000 shares of stock belonging to the stockholder were placed in the hands of the treasurer of the company, to be delivered to the stockholder when certain explorations, which he agreed to make at his own expense, should bring certain designated results. The stockholder sued the treasurer in trover for the stock, and on the trial was permitted to show the amount of money which he claimed to have expended in his exploratory work, and the amount expended after he had, as he claimed, developed a bed of ore which entitled him to his stock, and which latter expense was incurred under an agreement to mine which he claimed was made between him and the defendant, and in which the company acquiesced. Plaintiff’s counsel, at the close of his testimony in chief, withdrew the evidence as to the first item of expenditure from the consideration of the jury as erroneously admitted, but permitted the other item to remain for their consideration. And it is held that whether it cost plaintiff much or little to develop the mine had no legitimate bearing upon any issue involved in the suit; that the expenditure by plaintiff of such large sums of money as he testified to would naturally prejudice the jury; and that it was error to admit the testimony.</p>

<p>Error to Ionia. (Dodds, J., presiding.)</p> <p>Assumpsit. Defendant brings error..</p> <p>The facts are stated in the opinion.</p>

Mandamus. Eelator applied for mandamus to compel respondent to ■transfer a convict from the State prison to the House of Correction and Eeformatory at Ionia. The facts are stated in the opinions.

Exceptions before judgment from Hillsdale. (Lane, J.) Respondent was convicted of the crime of adultery. The facts are stated in the opinion.

Exceptions before judgment from Allegan. (Padgham, J.) Respondent was convicted of unlawfully engaging in the liquor business. The facts are stated in the •opinion.

Exceptions before judgment from Allegan. (Padgham, J.) Respondent was convicted of the crime of rape. The facts are •stated in the opinion.

(Loveridge, J.) Respondent was convicted of an assault with intent to do great bodily harm less than the crime of murder, and sentenced to imprisonment in the State prison at Jackson for three years. The facts are stated in the opinion.

Mandamus. Kelator applied for mandamus to compel respondents to place his name upon the official ballot in three different columns as candidate for Congressman. The facts are stated in the opinions.

<p>Error to Wayne. (Hosmer, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.'</p>

<p>'Taxes — Equalization—Records of supervisors — Evidence—Apportionment of State tax — Highway assessment.</p> <p>1. If, in equalizing the assessment rolls of the several townships of a county, there was no occasion to add to or deduct from the valuations as assessed, the only requirement of section 993, Comp. Laws 1871, was that there be entered upon the record of the board of supervisors the aggregate valuation of the taxable real and personal property of each township, as determined by the board, and, where such an entry appears, the presumption arises that no such deductions or additions were found necessary or were made; citing Chamberlain v. City of St. Ignace, 92 Mich. 332.</p> <p>2. The presumption in favor of the regularity of the equalization proceedings is not rebutted by showing that, if the State tax were computed upon the basis of the equalization, the tax levied upon the land in dispute would amount to 40 cents, whereas the amount levied was but 21 cents.</p> <p>■3. Section 997, Comp. Laws 1871, provided that the supervisors should ascertain and determine the amount of money to be raised by tax for county purposes, and apportion such amount, and also the amount of State tax required to be raised, among the several townships in the county, in proportion to the valuation of the taxable property therein for one year, as equalized by the board, which determination and apportionment should be entered at large on their records. And it is held that a resolution providing that a specified amount of State and county tax should be assessed on the rolls of the several townships, naming them, and placing opposite the name of each the amount of State and county tax required to be assessed, and giving the total of said taxes respectively, was a sufficient compliance with the statute, it not being shown that the apportionment to the several townships was unequal.</p> <p>4. Under said statute the board was not required to determine the amount of State tax to be raised, but simply to apportion the State tax, in ascertaining the amount of which it had reference to the certificate of the Auditor General showing the amount of State tax apportioned to its county, which certificate was not required to be spread upon the record of the proceedings of the board, and which, in the absence of proof to the contrary, it will be presumed to have followed in making such apportionment.</p> <p>5. In an action of ejectment involving the validity of a tax deed issued on a sale of the land for the taxes of 1872, the record of the highway commissioners showed that it was voted that the highway tax should be assessed at $1 on $100; also that the clerk should make the rolls. The assessment roll was not introduced, but ■ the inference that the assessment was made as a money tax, and not as highway labor, was sought to be drawn from said' record. And it is held that the action of the commissioners was to be evidenced by the roll; that, under the statute then in force, a day’s work was deemed for some purposes the equivalent of $1; that the fact that in giving preliminary instructions to the clerk the commissioners so treated it, instead of using the expression “one day’s labor,” does not create the presumption that their subsequent action in preparing the roll itself was irregular, and that they disregarded the statute; that, if they did, the roll itself would be the best evidence of that fact, and, if it was itself regular, the preliminary instruction would not invalidate it.</p>

<p>Impeachment — Admission of evidence — Discretion of court.</p> <p>Where in an action for malicious prosecution in causing the arrest of the plaintiff for taking possession, without process, of chattel-mortgaged property, the return of which had been adjudged to him in a replevin suit brought by the defendant for his wife, who owned the mortgage, the plaintiff is asked on cross-examination if he did not state to a certain person that he owed the defendant a specified sum on the mortgage, and denies making the statement, and the person referred to testifies in behalf of the defendant that plaintiff made such statement, after which the plaintiff on rebuttal again denies making it, and details fully the conversation which he claims occurred, the admission on surrebuttal of testimony offered by the defendant attacking the reputation of the plaintiff for truth and veracity is within the sound discretion of the court, which cannot be said to be abused by the rejection of the testimony.</p>

<p>Fire insurance — Conditions of policy — Other insurance — Waiver of forfeiture.</p> <p>1. A policy of insurance which, provides that it shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, whether valid or not, is voided by a subsequent insurance in form, even though it may not be¡ binding and enforceable.</p> <p>2. In a suit upon an insurance policy containing such a provision, it appeared that, in the first conversation had by the agent of the defendant with plaintiff’s agent, the defense growing out of a violation of said provisions was clearly foreshadowed, and that afterwards, in a letter acknowledging the receipt from plaintiff’s agent of formal notice of the loss, the general agent. of the defendant clearly indicated that the defendant intended to make said defense. And it is held that the contention of the plaintiff that the defendant waived said condition by inviting proofs of loss in said letter is untenable, it appearing that all that was promised was that, if plaintiff saw fit to furnish such proofs, the defendant would take such action as the facts demanded, but that plaintiff was apprised in the ■ same letter that the loss could not be adjusted for the reason that other insurance, provided against in the policy, existed.</p>

<p>Error to Ionia. (Davis, J.)</p> <p>Eeplevin. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

(Wilber, J.) ' Bill to declare a paving assessment to be null and void, and to remove the cloud created thereby upon the title to-complainants* lands. Defendants appeal. The facts are stated in the opinion.

<p>Error to Ingbam. (Person, J.)</p> <p>Assumpsit. Defendant Stone brings error.</p> <p>The facts are stated in the opinion.</p>

' (Peck, J.) Bill to foreclose a mortgage, and to declare complainant's mortgage a first lien on the property, etc. Complainant appeals. The facts are stated in the opinion.

<p>Error to Ingham. (Person, J.)</p> <p>Case. Plaintiff brings error.</p> <p>The facts are-stated in the opinion.</p>

(Brevoort, J.) Summary proceedings to recover the possession of leased premises. Defendant brings error. The facts are stated in the opinion.

(Cobb, J.) Bill to declare a deed to be a mortgage, and for leave to redeem. Complainant appeals. The facts are stated in the opinion.

(Lane, J.) Bill to establish a lost deed, and to set aside a subsequent deed as a cloud upon complainant’s title. Defendant appeals. The facts are stated in the opinion.

<p>Justices of the peace — Jurisdiction of person — Waiver—Docket entries — Parol evidence — Adjournment—Pleading— Variance — Amendment.</p> <p>1. The presence of the parties to a suit in justice’s court, and their consent to an adjournment, without pleading, cures any defects in the service or return of service of the'summons by which the suit was commenced.</p> <p>2. An entry upon the docket of the justice as to such appearance and consent, being facts occurring in his presence, cannot be contradicted in an action upon the judgment rendered in the case.</p> <p>3. Where, in a suit upon a justice’s judgment, a question of variance between the declaration and the proof as to the date of the original summons arises, and the circuit judge decides that such variance does not exist, the appellate court, if, upon inspection, disagreeing with him, will treat his determination as an amendment, it being apparent that the case proceeded upon the theory that the date was correctly pleaded.</p> <p>4. The failure of a justice of the peace to enter upon his docket the place to which a case is adjourned, pursuant to How. Stat. § 7053, voids a judgment rendered on the adjourned day, it not appearing that the defendant knew where to attend, and the docket entries showing that he was not then present.</p>

<p>Highways— User — Dedication—Instructions to jury.</p> <p>1. User of land as a highway for the statutory period conclusively establishes the dedication of the land for that purpose.</p> <p>2. The rights of the public in a highway which has become such by user are not affected by the listing of the land for taxation to the former owner, and the payment by him of the taxes so assessed.</p> <p>8. It is not error to refuse to instruct the jury as requested where the instruction asked for is not applicable to the evidence in the case.</p>

(Buck, J.) ^Respondent was convicted of the crime of uttering a. forged draft, and sentenced to imprisonment in the State' prison at Jackson for 11 years. The facts are stated in the opinion.

Exceptions before judgment from Montcalm. (Davis, J.) Despondent was convicted of unlawfully engaging in the liquor business. The facts are stated in the opinion.

(Chapin, J.) Respondent was convicted of the offense of receiving stolen property, knowing it to have been stolen, and sentenced to imprisonment in the State prison at Jackson for three years. The facts are stated in the opinion.

<p>Error to Monroe. _(Kinne, J.)</p> <p>Negligence case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

(Carpenter, J.) Certiorari to review proceedings establishing a street through the grounds of the petitioner. Petitioner brings, error. The facts are stated in the opinion.

<p>Error to Kalamazoo. (Back, J.).</p> <p>Negligence case. Defendant brings error.</p> <p>The facts áre stated in the opinions.</p>

(Grove, J.) Relator applied for mandamus to compel respondent to allow her claim for the board of certain witnesses for the people pending the trial of a criminal case. Respondent brings certiorari to review order allowing the writ. The facts are stated in the opinion.

<p>Error to Wayne. (Brevoort, J.)</p> <p>■ Assumpsit. Plaintiff brings error.</p> <p>The facts ■are stated in the opinion.</p>

(Wisner, J.) Relator applied for mandamus to compel respondent to •construct a culvert across its right of way to accommodate • a drain claimed to have been established by relator as •county drain commissioner, and respondent brings certiorari •to review order granting the writ. The facts are stated in the opinion.

<p>Error to Ingham. (Person, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

(Person, J.) Bill to set aside the sale of complainant’s interest in his brother’s estate. Complainant appeals. The facts are stated in the opinion.

<p>Taxes — Conclusiveness of deed — Replevin—Title to land — Possession — Evidence.</p> <p>1. It is not within the power of the Legislature to deny the right to defend against a tax deed by declaring that it shall be conclusive evidence of title in fee in the grantee; citing Taylor v. Deveaux, 100 Mich. 581.</p> <p>2. The doctrine adhered to by the courts of several of the states that, in an action of replevin for logs, evidence on' the part of the defendant that the logs were cut while he was in the bona fide and actual possession of the land from which they were taken, under a claim of title adverse to that of the plaintiff, precludes an investigation of defendant’s title in said suit, has been repudiated in this State; citing Keyser v. Sutherland, 59 Mich. 466; Busch v. Nester, 62 Id. 382, 70 Id. 529; Wilson v. Hoffman, 93 Id. 74,</p> <p>3. A bona fide and actual possession of wild lands is not clearly established by testimony tending to show that the party making such claim occupied a shanty on the land while removing timber therefrom, it not appearing who built the shanty, nor what the purpose was for which it was built, and there being a doubt as to the shanty’s being upon the land from which the timber was removed.</p> <p>4. Testimony by the father of the claimant that he once heard his son say that he calculated to buy an adjoining parcel of land, and make a home of the two parcels, was hearsay, and inadmissible; citing Elliott v. Van Buren, 33 Mich. 49; Insurance Co. v. Crampton, 43 Id. 421.</p>

<p>Res judicata — Second appeal — Contributory negligence.</p> <p>Where, after the reversal of a judgment in a negligence case on the ground of the contributory negligence of the father of the decedent, the case is again tried, and on a second appeal the evidence of such negligence is the same as that given on the former trial, the question will be treated as res judicata.</p>