Volume 11 — Michigan Reports

Appeal in Chancery from Saginaw Circuit. Bill for specific performance.

<p>Ia an action for slander, for words actionable in themselves, where general damages only are claimed, the defendant is not entitled to show in mitigation of damages under the general issue, that “during the six years prior to the suit inveterate feelings of hostility had existed between the plaintiff and the defendant, and that the plaintiff had taken every opportunity to irritate th® defendant.”</p> <p>In an action for slander in charging plaintiff with perjury, evidence is not admissible on behalf of defendant, that on an occasion not appearing to have any connection with the matter in controversy, the plaintiff called him a liar and a perjured wretch. 3ffor where general damages only are alleged is evidence admissible in mitigation of damages that plaintiff has stated that the slander complained of did him no damage.</p>

The bill was filed against John Brown and Emma his wife, Uzziel Dunham and Walter C. Skiff, to foreclose a mortgage given January 21, 1855, by Brown and wife to Enoch James, to secure the payment of $13,000 in three payments, at three, four and five years respectively, with interest, for which notes were given. This mortgage was upon lot 39 in section number Y of the Governor and Judges’ plan of the city of Detroit, and was assigned to complainant January 19, 1858.

Case made from Oakland Circuit. Farr brought ejectment against Shermanj to recover lands which she had owned prior to 1855, and which, by deed bearing date in June of that year, she had conveyed to one Parish, through whom Farr claimed title. The defendant at the date of this deed was the wife of Samuel Sherman, since deceased, to whom she was married in 1843, and who did not consent to or have knowledge of this deed to Parish.

Appeal in Chancery from Sanilac Circuit. This case was once before in the Supreme Court, and is reported in 9 Mich. 465.

The case was submitted in the Court below on the following stipulation as the sole evidence: “ The People v. Thomas Chilvers.

The bill of complaint set forth: That on November 19, 1860, Hernán C. Palmer filed his bill against the defendants to foreclose a mortgage given by them: that defendants appeared, and no further proceedings were had prior to December 29, 1860, when said Palmer died, and Phebe A. Palmer was, in February following, appointed administratrix on his estate: that an order was made by said Court July 24, 1861, substituting said administratrix as complain, ant in the case, with…

Appeal in Chancery from Livingston Circuit. Sellers filed his bill to foreclose a mortgage given to him by Samuel and Sarah Burley for money loaned. Bots-ford was made a defendant as subsequent purchaser. The ■defendants set up the defense of usury. It appeared in evidence that Botsford purchased the mortgaged premises •of the mortgagors, subject to the mortgage, and agreed to pay it up.

<p>No written request for a finding by tbe Circuit Judge is necessary, except where a party desires a detailed finding on the facts of the case, as well as on the-law points.</p> <p>Nor is the right to except for supposed errors of decision affected by the absence-of a written finding by the Circuit Judge.</p> <p>Where time has been allowed for preparing and settling exceptions, and it has expired without action, the Circuit Judge has power to make a further order for that purpose.</p> <p>Such further order having been made by the Circuit Judge, he can not afterwards disregard it, and refuse to settle the exceptions because not presented for the purpose within the time first allowed.</p>

Clair Circuit in Chancery. The' bill was filed by the Attorney General to enjoin proceedings which were being taken under resolutions passed by the Board of Supervisors of said county at their October meeting, 1861, by a two-thirds vote of the Supervisors present, the first of which was that it was expedient to remove the county seat of said county from the city of St, Clair to the city of Port' Huron; the second, that the question of such removal should be submitted to the…

<p>One in possession of personal property of which he has made a conditional purchase, can not before the condition has been complied with sell the property so as to vest the title in a bona fide purchaser.</p>

The declaration and the objections nátde to a recovery under-it are sufficiently stated in the opinion. After the evidence was in, the Circuit Judge charged the jury as follows: “It is a rule of law that a mere assertion' of value made by the seller, when no warranty is intended, is no ground of relief to a purchaser, because-the assertion is a matter of opinion- which does not imply knowledge, and in which men differ.

<p>The Court is not bound to follow as precedents adjudications outside the State-* except the adjudications of the Federal Courts on questions arising under the Constitution and laws of the Federal Government — any further than they appear to the Court to be warranted by the fundamental principles of the common law.</p> <p>The question discussed whether, where one erects a dam on his own land, whioh causes the land of another to be flowed, and then conveys the land on which the dam is situated, a suit can be brought against his grantee for the nuisance before he has been served with notice of it and requested to remove it,</p> <p>if such notice be necessary, and has once been given by the owner of the land flowed, it will enure for the benefit of his grantee, or of any one claiming title under or through the person giving the notice.</p> <p>That which in a replication would not be a departure in pleading, may be given in evidence in reply to a defense under the general issue.</p> <p>Where a notice from plaintiff’s grantor was sufficient to entitle him to maintain the action, and such notice was proved, and the Court erroneously charged that the notice must be given by the plaintiff or by some one authorized by him! it was held that to entitle the plaintiff to take advantage of the erroneous ruling it was not necessary that the attention of the Court should be specially called to the evidence of notice at the time of the charge.</p>

The action was brought by Larkin and Sumner against the county of Saginaw and one Hughes, for obstructing the navigation of Tittibawassee River, by the improper construction of a bridge across the same.

The suit was commenced in the Court below against Bliss by the filing and service of declaration. The declara,-, tion contained the common counts only, appended to whioh was the following notice: “To the within named defendant: Take notice that on the trial of this canse a certain note of whioh the following is a copy, will be given in evidence, under the money counts of the within declaration, according to the statute. J. G-.

<p>One whose property had been wrongfully'taken from him, replevied it, but being nonsuited in the replevin suit, defendant had judgment against him for the value of the property. He then sued in trespass for the taking of the property, and it was held that he was entitled to recover in this suit not only damages for the detention of the property while defendant held it, but also its value as assessed in favor of defendant in the replevin suit.</p>

Plaintiff in error was. proceeded against by information for an alleged nuisance caused by obstructing the waters of the St. Joseph River, by a dam in the township of Fayette in Hillsdale county, thereby causing stagnant water, noisome and unwholesome stenches, and producing sickness and disease in the vicinity.

Board of Canvassers of Kent County to certify to the election of the relator as Circuit Court Commissioner for such county at the annual election held in October, 1862.

Plaintiffs in error brought action upon a bond given by defendants in error for the release of the steamer Illinois, which had been seized under the Boat and Vessel Law, so called (chapter 149 of Compiled Laws), on a warrant issued by T. S. Blackmar, a Circuit Court Commissioner of Wayne county. The bond was conditioned for the payment to plaintiffs in error of the sum of $761 96, the amount of their claim for which the boat was seized.

<p>Error to St. Clair Circuit. The case is sufficiently -stated in the opinion of Justice Campbell.</p>

Appeal in Chancery from. Jackson Circuit. The Jackson and Michigan Plank Road Company was incorporated April 3, 1848, for the purpose of constructing a plank road from Jackson to Michigan, now Lansiüg. On September 1, 1851, this company, for the purpose of providing means for the construction and completion of their road, buildings and equipments, in pursuance of an act of the Legislature supplementary to their act of incorporation, approved April 3, 1851, and which had been…

Appeal in Chancery from Calhoun Circuit. Complainant filed her bill to redeem from a chattel mortgage a quantity of wheat, which she had mortgaged while growing, and which at the time of filing the bill had been harvested and stacked upon her premises.

The defendants in error brought suit in the Court below-to recover the amount of two promissory notes, upon one of' which no question arises. The other was for £190 9s. lid., given and made payable in Canada West, and due‘in August 1856.

Hatch, as agent for one McCormick, took from the possession of Squires certain personal property which was described in a chattel mortgage executed by him to McCormick. Squires replevied the property, and the principal question in the replevin suit was as to the validity of this mortgage, the consideration of which was a reaper and mower purchased of McCormick, and which was alleged to be worthless.

<p>The Act of Congress of March 1, 1847, “ to establish a land office in. the northern, part , of Michigan,” &c., (9 Stat. at Large, 146) does not authorize by pre-emption or otherwise, the sale by the United States of any lands which, on survey, might fall within section sixteen.</p> <p>A judgment will not be reversed for the .admission of evidence from which no injury could result to the plaintiff in error.</p>

Case made after judgment from Cass Circuit. The declaration contained the common counts only; among them one for goods sold and delivered, and one for labor. There was appended to it a notice that a note, a copy of which was subjoined, would he given in evidence on the trial under the money counts. Defendants appeared, in the case by attorney, but did not plead, and their default for want of plea was entered.

<p>The statute which provides, that in any “action” brought on negotiable paper given on an usurious consideration, if the plaintiff became a bona fide purchaser of the paper before it became due, then, unless it appear that he had notice of the usury when he bought, he shall be entitled to recover, is to be construed as embracing suits in chancery as well as actions at law.</p> <p>Heard January 12th. Bedded April 21th.</p>

Case made after judgment from Wayne Circuit, where-Merrill brought action against Hartwell on a guaranty in a hill of sale of land warrants in the following words:- “ Guaranteed in all respects.” Merrill located the warrant in question in 1854, hut had received no patent when, in 1862, he was notified by the Register and Receiver of the-land Office that the warrant was cancelled by the Commissioner of Pensions, and the entry therefore suspended.

<p>Error to St. Clair Circuit. The case is fully stated in the opinion.</p>

The action was brought by Bowker against Sylvester P. May and his attorneys, for false imprisonment in causing Bowker to be arrested on a capias ad satisfaciendum issued upon a judgment rendered in said Circuit Court, in favor of May against Bowker, in an action of replevin. The first count of the declaration was in the ordinary ■ form, averring no special damage.

The errors alleged in this Court were the admission in evidence of the depositions of Thomas & Boun, taken on commission, and the reception of parol evidence to show that the contract of defendants by the written instrument was with plaintiffs, and not with Seymour & Sleight, who are mentioned in it.

<p>Defendant promised a debtor of plaintiff to pay the debt on condition that the debtor would deliver defendant a certain cow. The promise was communicated to plaintiff, but without stating the condition. The cow was not delivered, but it was held that the failure to perform the condition would not discharge the promise to the plaintiff.</p> <p>iBut the plaintiff not having discharged the debtor, and the promise not being upon any consideration moving from the plaintiff, and not in writing, is void by the Statute of Frauds.</p>

The relators, Alder-t Plugger, W. J. Mulder, M. D. Howard, Homer Schaddelee, Jan Trimpe, W. K. Fliestra, H. D. Post, P. F. Pfaustiebl, Charles J. Pfaff and John Roost,, set forth in their application: That in pursuance of “An act to authorize the township of Holland and other townships in the counties of Ottawa and Allegan, to make loans and levy taxes for the improvement of the harbor at the mouth, of North Black River in Ottawa County,” approved February 8, 1858,…

Ejectment for certain lots and blocks in Bay City, described in the declaration as being in that part of the village of Bay City which was formeriy part of the village of Portsmouth, according to the plat of said village of Portsmouth. On the trial, it was admitted that Joseph E. Marsac, purchased of the United States fraction number two, and Gardner D. Williams fraction number three, of section twenty-eight, town 14 north of range 5 east.

Action by Holderman against Keller upon a check for $300, drawn by Keller upon a banker at Niles, and not honored. The cause was tried without a jury, and the Circuit Judge found as facts, that the check was given for an old silver watch, worth about $15, which Keller took and kept till the day' of trial, when he offered to return it 'to the plaintiff, who refused to receive it.

<p>Chattel interests in lands are to he sold on execution as personal estate.</p> <p>A sale on execution of an estate for years in lands, made in accordance with the statutory provisions for the sale of real estate, is void.</p>

Appeal in Chancery from Lenawee Circuit. Blackwood, who was assignee of a mortgage given in 1837 by one Miller, and to foreclose which he had brought suit in equity, filed his bill in this cause, setting forth that defendant was in possession of the lands mortgaged, claiming title thereto under deeds from the Auditor General given on sales for delinquent taxes of 1849 and 1854, and that he threatened to commit waste thereon by cutting off the timber.

<p>In a contest between two mortgagees as to the priority of their respective liens, the mortgagor being personally liable for both the mortgage debts, is disinterested, and might be a witness under Chancery Rule 55 prior to the act of 1861, making parties to suits competent witnesses generally.</p> <p>Notice of a prior incumbrance to charge a subsequent incumbrancer or purchaser need not come from a party in interest.</p> <p>Suoh notice of prior, rights or equities as men usually act upon in the ordinary affairs of Ufe, is all that can be .required to charge a purchaser. If it is sufficient to direct the attention of the purchaser to such prior rights or equities, and to enable him to ascertain their nature by inquiry, he should bo held bound by it.</p>

<p>A bill filed to quiet complainant’s title to lands, which makes persons defendants-whose claims to the laud are in no way connected, is multifarious.</p>

The bill was filed against Henry H. Brown as mortgagor, and Kirkland' C. Barker and John Windiate as subsequent purchasers or incumbrancers, to foreclose a mortgage given November 29th, 184V, by Brown to complainants, and conditioned for the payment by him of “all-sums now due or hereafter to become due,” but without specifying any amount.

Thompson sued out au attachment against the property ■of Thomas, returnable September 2d, 1862, upon which land was attached. Personal service not being obtained, a notice to the defendant was published, and affidavit of publication filed November 6th, 1862. On the same day the appearance of the defendant was entered by the plaintiff in the common rule book, and declaration filed.

<p>An act of carnal intercourse with an unmarried -¡woman, to which her assent was-obtained by a promise of marriage made at the time, and to which without such promise she would not have yielded, constitutes the offense of seduction under the statute.</p> <p>Accordingly where a woman was seduced in 1860, on a promise of marriage, and the intercourse was afterwards broken off, but was renewed again on the promise of marriage being renewed, and only in consequence of such promise; it was held that a prosecution might be commenced for the seduction at any time within one year from such last intercourse.</p>

<p>The veVdict of a jury on an issue out of chancery has no binding force, and a new trial will be ordered upon much slighter grounds than in an ordinary action at law. Per Campbell J.; Martin Oh. J. concurring.</p> <p>And the Court may entirely disregard the verdict and make a decree against [it, notwithstanding it satisfies the Judge who tried the cause.,</p> <p>An issue awarded at tlie.hearing in chancery to be tried by jury, must be con» fined not only to facts put in issue by the pleadings, but to facts concerning which some testimony has already been introduced and read at the hearing, Per Campbell J.; “Martin Oh. J. concurring.</p> <p>Where, therefore, the pleadings in chancery put in issue adultery committed by one of the parties in April, May and June, 1858, but no testimony was taken tending to show its commission in April, and at the hearing issues were framed for trial by juiy covering the months named, and also December and January preceding, such issues, so far as they related to the months of December, January and April, were irregular, and a general verdict of guilty rendered thereon must be disregarded. Her Campbell J.; Martin Oh. J. concurring.</p> <p>Christianoy J. concurred in holding the issues- irregular so far as they related to time not covered by the pleadings; but as no evidence was given on the trial of transactions outside the pleadings, he was of opinion that the verdict should not be disregarded because of the issue being too broad.</p> <p>Where in a case in chancery several issues are framed for trial by jury, each issue must be passed upon by the jury separately. Per Campbell J.-; Martin Oh. J. concurring.</p> <p>Evidence having been given to establish the fact of adultery at a time named, the alleged pariiceps criminis was called to disprove it, and denied its commission. He was asked on cross-examination if he had not stated, the year before ,the alleged offense, that he had had illicit intercourse with the party charged. It was held that the inquiry did not relate to any matter in issue, and that it was error to allow the question to be put.</p> <p>Where a witness has been thus questioned about immaterial matters, he can not be impeached by proof of contradictory statements in regard to them.</p> <p>A deposition taken in chancery cannot be read on the trial of issues by a jury, where the witness is personally present at the trial.</p>

Habeas Corpus, directed to Randolph Strickland, Draft Commissioner for the county of Clinton. From the return and the admissions of the parties the following facts were made to- appear, upon which the relator moved this Court for his discharge. On August 9th, 1862, the Adjutant General of the United States issued General Orders No. 99, as follows: “ Regulations for the enrollment and draft of three hundred thousand militia.

<p>Whether the State can lawfully provide for the punishment in Michigan of persons who having committed a larceny in a foreign country bring the stolen property into the State, quere: the Court being equally divided on the question.</p> <p>If the statute for that purpose — Comp. L. §5797 — is valid, whether an information under it is sufficient which charges the defendant in the ordinary form with a larceny committed in this State, quere: the Court being equally divided on the question.</p> <p>Where an examination has been had before a magistrate on a criminal charge* and the accused is discharged, an information can not afterwards be filed against him for the same offense.</p> <p>If an information is filed after examination and discharge, the defendant may prove those facts in bar of the prosecution, under the plea of not guilty.</p> <p>Under the act of March 11, 1861, the wife of a defendant in a criminal prosecution may be examined as a witness on behalf of a co-defendant of her husband.</p> <p>An objection to a question that it is leading must be taken before the question is answered. Per Manning J.</p> <p>A judgment can "be reversed only for errors appearing on the face of the record. Where a question put to a witness is objected to, the reason for the objection must "be stated, and must appear by the bill of exceptions, or it can not be presumed on error that it was erroneously overruled. Per Manning J.</p> <p>The question “ Will you state whether or not in your judgment the samples now-shown to you are off the pieces that were stolen,” is not objectionable as being leading. Per Manning J.</p> <p>Where this question is put to a witness shown to have been acquainted with the piece stolen, it is not objectionable on the- ground that the witness has not been shown to be an expert. Per Manning J.</p>

The bill was filed to foreclose a mortgage. The defendants answered, setting up payment and other defenses. On May 23, 1862, the cause was brought, to a hearing, and the Court made an interlocutory decree, adjudging the whole amount of the mortgage to be owing to complainant, as claimed by his bill, and referring the cause to a Circuit Court Commissioner to report the amount.

<p>The ordinance of the city of Detroit prohibiting the keeping of stalls for the sale of fresh meats outside of the public markets, without license from the mayor» and requiring the payment of a license fee of five dollars, is a valid ordinance.</p> <p>Such license fee is not a tax, but a reasonable compensation which the city demands from thoso who will not sell in the public markets, for the additional labor of its officers, and expense thereby imposed.</p>

B. Porter, Esq., Circuit Court Commissioner for Wayne county, who had made an order dissolving an attachment issued in Hyde’s favor against Nelson, from the Wayne Circuit Court.

Appeal in Chancery from St. Clair Circuit. Complainant filed her bill against Henry Wilcox and Asa D. Dickinson, for the specific performance of a contract made by said Henry Wilcox, to sell and convey to Frederick McKee, complainant’s husband, a city lot in Port Huron. The contract was made January 3, 1856, and was for a consideration of $800, of which $200 was to be paid down and [the ballance in three annual payments.

Quo warranto. The following are the admitted facts in this case: At an election held ha the city of Detroit on the first Tuesday after the first Monday in November, 1862, Michael Hayes and George Bates were opposing candidates for the office of Overseer of Highways in and for the first ward of the city.

Ejectment by Storrs H. Moulton, administrator de bonis non of the estate of Freeman Moulton, deceased. The cause was tried by the Circuit Judge without a jury, and the following is his finding: “This was an action of ejectment, brought by the plaintiff to recover possession of the south half of the south-west quarter of sec. 28, T. 4 south, range 5 east, excepting ten acres on the west side sold to Michael McEnneay.

In July, 1858, tbe plaintiff in error sued out of the Circuit Court for the county of Wayne an attachment against the property of Charles Taylor, on an indebtedness of some six hundred dollars, and delivered the same to a deputy of the defendant, who was then Sheriff of said county, for service.

Appeal in Chancery from Oakland Circuit. The original' bill was filed by Baldwin, to quiet his title to certain real estate which he had purchased of Albert F. Draper, who claimed the same under a general assignment made to him in October, 1857, by James A. Weeks, for the benefit of his creditors.

Motion on behalf of Daniel J. Campau and Francis Palms, two of the defendants to a suit pending in the Circuit Court for the county of Wayne in Chancery, for a writ of prohibition, to be directed to said Court. The petition therefor had attached to it a copy of the bill in that cause, from which the following facts appear: The complainants are children and presumptive heirs at law of Joseph Campau, who is upwards of 94 years old.

Plaintiffs in error brought suit against Moses Merick and Eldridge G. Merick, as makers of the following note: “$562 50. Oswego, June 30th, 1858. Four months after date we promise to pay to the order of J. H. Mack & Co., at the Lake Ontario Bank, five hundred and sixty-two [dollars, value received.

The action was brought by Brady upon a policy of insurance for $2,000, issued January 1, 1856, for one year, and renewed annually thereafter, the last renewal being January 1, 1861. The policy covered a three-story wood warehouse owned by Brady, in the city of Detroit.

J. Hollister, for the appellants, had been served with notice of a motion to be made on the first day of th© term to dismiss the case. The motion was not called up on that day, and he was ready to oppose the motion now, and asked costs of the motion if the appellee did not call it up.

Appeal in Chancery from Ingham Circuit. The bill was filed to foreclose a mortgage given by said Louisa Thurber on her sole property, to secure a debt of Caleb Thurber, ber husband. The mortgage bore date January 6, ÍSS?, and its acknowledgment was taken by John Marble, a justice of the peace, who certified that she' acknowledged separate and apart from her husband, that she had executed it freely, and without fear or compulsion of any one.

<p>Error to Kalamazoo Circuit. The case is sufficiently-stated in the opinion of Justice Christiancy.</p>

<p>A promise in writing to pay the debt of another is not valid unless it show the whole terms of the contract: no resort can he had to parol evidence to add to them.</p> <p>A verbal promise to pay tho debt of another being: void under the Statute of Frauds, is not a valid consideration for a subsequent promise in writing.</p>

On case made from Cass Circuit. The plaintiffs in this suit filed their bill in Chancery'against Litchfield to obtain the specific performance of a contract. A decree Laving been made in accordance with the prayer oí the bill, and awarding costs against Litchfield, he appealed therefrom to the Supreme Court, and gave the bond provided for by § 3597 of the Compiled Laws.

<p>On case made from Cass Circuit. The case is sufficiently stated in the opinion.</p>

<p>Error to Wayne Circuit. Tbe case is sufficiently stated in tbe opinion.</p>

Sutton brought action against defendants in error for certain property covered by a general assignment made to him by the firm of J. C. Satterthwaite & Co., for the benefit of their creditors. Defendants. held the property under executions against the assignors, and they claimed the assignment to be fraudulent, for the reason, among others, that it allowed a sale of the assigned property on credit.

<p>Error to Kent Circuit. The case is stated in the, opinion.</p>

Case made, from Macomb Circuit. Littell brought suit against defendants to recover moneys which he had paid on a judgment, rendered upon a promissory note, given by defendant Fitch, in the name of S. A. Fitch & Co., a copartnership, composed of the defendants, and signed by Little as surety.

<p>Appeal in Chancery from. Wayne Circuit. The facts sufficiently appear by the opinion.</p>

Appeal in chancery from Branch Circuit. The bill was filed to compel a release by defendant of a piortion of a village lot in Coldwater, which had been conveyed by complainant to defendant’s grantor.

<p>Error to Wayne Circuit. The case is fully stated in the opinion.</p>

Case made from Lapeer Circuit. The action was ejectment. The land in controversy was shown to have been patented by Prentice Williams; and the plaintiff then offered in evidence the record of a deed jn the office of the Register of Deeds of Lapeer county, which pm-ported to have been executed by Prentice Williams to John B. Cady, June 15th, 1838, and to convey said premises, but defective because witnessed by one person only.

<p>Appeal in chancery from Berrien Circuit. The case is stated in the opinion.</p>

off the roof, and committing other injuries by which it was rendered untenantable. The case was once before in the Supreme Court, and a full statement of the pleadings will be found in 10 Mich. Rep. 460. The prior judgment having been reversed, the following proceedings took place on the new trial.