Volume 12 — Michigan Reports

<p>Error to Eaton ’ Circuit.- The ease is fully stated in the «opinion.</p>

W. Brewer, a justice of tbe pe.ace. ' The writ of certiorari was allowed upon the affidavit of Theodore Pew, one of the defendants in the justice’s court, alleging as grounds of error,— First, that the said justice erred in overruling the demurrer of said defendants, to plaintiff’s replication, for the following reasons: 1st. Such replication was no wise in answer to, or put in issue, anything alleged or set forth in the said plea in abatement: 2d, The facts in said…

Appeal in Chancery from Branch Circuit. The nature of the bill is sufficiently stated in the opinion. The defendants severally demurred, but their demurrers were overruled; and they then answered, and the case was heard on pleadings and proofs. The Court below made a ■decree against Nichols, as prayed, but dismissed the bill as to Grove, without costs. Nichols appealed to this 'Court.

Motion by C. A. Stacy, for a mandamus, directed to the Circuit Judge of the first Circuit, to compel him to settle and sign a case. It appeared by the affidavits presented, that the case of the relator against Andrew J. Gaumer, was submitted to the Court upon the facts, and that the Judge, on September 23, 1863 (in vacation), delivered to the clerk his decision in writing, in favor of defendant.

The plaintiff in error was informed against for murder, as follows: “State oe Michigan, Kent County, ss.- The Circuit Court for the County of Kent.

Case made after judgment, from Kalamazoo Circuit. The cause was submitted to the Court below upon a stipulation showing the following facts: The defendant was township treasurer of Texas, from April, 1861, to April, 1862, during which period he collected for the township, and was entitled to his legal per centage upon $2,448 20. This sum included two and a half per cent, added by the supervisor for collection expenses.

Suit was brought by Welch against Bagg before a .justice, where he declared in assumpsit, “ for pasturing cows by the plaintiff, for the defendant, in the Detroit Riding Park, so called, in the year 1862; and upon the common counts.” Defendant pleaded the general issue, with notice ■of special defense. The c&use was tried by a jury, who rendered a verdict for plaintiff.

Appeal in chancery from Wayne Circuit. The complainants, by leave of the Court, filed their bill of complaint, setting forth: That on May 23, 1854, the Detroit and Pontiac Railroad Company purchased lots eleven, twelve and thirteen, according to the recorded plat of the Lambert Beaubien farm, of Thomas Firby, for $17,000, and received therefor a deed with covenants against incumbrances and of title; that they paid Firby $1,000 down, and gave him a mortgage for $16,000, the…

Case made after judgment, from Saginaw Circuit. The action was originally commenced before a justice of tbe peace, and plaintiff declared, “for that whereas, tbe plaintiff became and was a proper guest at tbe inn of tbe defendant, kept in tbe city of East Saginaw, Saginaw county, on tbe 21st day of February, 1862, and this plaintiff deposited with defendant, as inn-keeper, bis, plaintiff’s, overcoat, and • a pair of gloves and a fur collar, all of tbe Value of $25; that when…

To show title to the property replevied, the plaintiff produced in evidence a general assignment for the benefit of creditors, and gave evidence on the subject of possession of the chattels mentioned in said assignment, by virtue thereof; aBd rested.

Appeal in Chancery from Genesee Circuit. The bill was filed against Elijah Stanton and Stanton* E. Reed, to foreclose a mortgage given by said Stanton on two parcels of land. The bill was taken as confessed by Stanton. Reed, who was made a party as a subsequent incumbrancer, answered, disclaiming as to one parcel, and claiming the other by a title paramount to the mortgage.

Case made after judgment, from Washtenaw Circuit. The declaration was upon a promissory note, with the common counts.

Henry Waldron, Chauncey W. Ferris and Allen Hammond, brought suit against Underwood in assumpsit, the declaration containing two counts, in substance as follows: First Count: For that, on January 26, 1853, the defendant, the plaintiffs, and certain other persons, were desirous of erecting a college building in or near the village of Hillsdale, for the benefit of themselves severally, and the defendant, in consideration thereof, and for the purpose of effecting said object,…

Appeal by Stephen C. Andrews, from decree made by tbe Wayne Circuit Court in Chancery. The facts, and the-nature of the pleadings, sufficiently appear by the opinion.

The action was replevin, by Hinsdale against Hickey and Bigelow, who justified under an execution against Hinsdale, by virtue of which Hickey, acting as constable, and by direction of Bigelow, levied on the property replevied, which consisted mainly of household furniture. The execution was issued upon a judgment in favor of McBride, Robinson and Hoover, against Hinsdale as garnishee of Samuel Chamberlain, rendered March 1, 1858, for^$249 58.

Appeal' by defendants from Saginaw Circuit in Chancery. The facts necessary to an understanding of the legal questions are sufficiently stated in the opinion.

<p>Common law eertioraH where there is a statutory remedy. — The allowanoe of a writ of certiorari by a proper officer, to remove proceedings into the Supreme Oourfc, is not conclusive upon that Court, and the writ may be dismissed if impro’vidently issued.</p> <p>The power of the Supreme Court to review the decisions of inferior tribunals on certiorari, is one to be sparingly [exercised in cases where ¡other adequate remedies can be bad; and where a decision can bo taken up by appeal, and on that appeal the jurisdictional questions, as well as those arising on the merits, can be fully disposed of, a certiorari should not be allowed, unless circumstances exist which show that a failure of justice will result from denying it.</p> <p>"Where, therefore, 'summary proceedings were had under the statute to recover possession of lands, and judgment rendered for the complainant; and the defendant, instead of appealing to the Circuit Court, procured the allowance of a common law certiorari removing the proceedings to the Supreme Court; and it appeared that the defendant had no claim to any equitable consideration from the Court, it was held that, although the Court had power to review the proceedings in this mode, yet, under these circumstances, the writ should be dismissed, with costs, as improvidently issued.</p>

The bill was filed by Orrin P. Ramsdell against Alexander Eaton, Louisa P. Eaton and Moses B. Hess, to foreclose a mortgage signed by “Alexander Eaton, Juniorf and Louisa P. Eaton, his wife, and given to “ O. P. Rams-dell,” upon premises described as “The east twenty feet of the west half of lot twelve in block eighteen; that is to say, commencing sixty feet from the north-east corner of lot twelve on Plank Road street, thence northerly sixty feet to the line between lots…

The only error assigned was, that the finding of facts by the Circuit Judge did not sustain the judgment. The following was the finding: “ Case ■ under Chapter 141 of Compiled Laws, entitled ‘ Of proceedings against Garnishees.’ “ On the 4th day of September, 1862, the said Richard D. Sprague commenced suit by summons, against one Parker A. Sprague, before ffm.

The plaintiffs in error insured DeGraff “ against loss or damage by fire to the amount of $1,500, as follows: $500 on dry goods contained in the wood building occupied by assured; $200 on groceries; $100 on hardware; •$100 on boots and shoes; $50 [on crockery; $50 on hats and caps; all contained in the wood store on south side of Main street, village of Palmyra; $500'on dwelling house.” The policy provided that if the premises “shall be used for the purpose of carrying on…

“The Regents of the University of Michigan,” a body politic and corporate, existing under the laws of Michigan, plaintiffs in this suit, by Levi Bishop, them attorney, complain of the “Detroit Young Men’s Society,” a corporation also existing under the laws of Michigan, defendant in this suit, which has been duly summoned to answer the said plaintiffs, of a plea of trespass on the case, upon promises.

These premises were sold in 1854 for delinquent State and county taxes of 1853, and bid in by the State, and were subsequently re-sold by the State in 1855 to the plaintiff, and a deed given therefor April 17, 1856. Under this deed, which was recorded in the office of the register of deeds April 24, 1856, the plaintiff claimed title. The suit was commenced more than two years after the recording of the deed.

<p>When a case is made for review on the facts, all the evidence must he returned»</p>

The motion was made for the purpose of settling doubts which existed as to the rights of the primary school fund in the proceeds and value of swamp lands, donated to the State by act of Congress of September 28, 1850, and those subsequently sold or appropriated for roads under the legislation referred to by the Court.

Appeal in Chancery from the Wayne Circuit. On the fifteenth clay of December, 1858, Ladue executed to the firm of Marvin & Stephens, a mortgage of lands, with condition and 'power of sale as follows: “Provided always, and these presents are upon this, express condition, that if the said party of the first part, shall and does well and truly indemnify and keep harmless the parties of the second part, and their”representatives, of and from all loss, costs or damages of any and…

Mitchell brought suit in trover, to recover the value of certain furniture, which he claimed under a general assignment made to him by Increase A. &. William H. Pendleton, composing the firm of I. A. Pendleton & Son, for the benefit of their creditors, and which defendant Was alleged to have converted to his own use on 24th 'August, 185*1, the date of the assignment. Defendant justified taking the property as constable, by virtue of executions issued against the Pendletons.

The relator, on the thirteenth day of May last, was mustered into the United States service as a volunteer in the fifth Michigan battery, for the full term of three years. Immediately previous to this he had been accepted and mustered in as a ’ substitute for a drafted man from this State, for the term of nine months.

Appeal in Chancery from Ionia Circuit. The bill was filed by Richmond, who was assignee of Rufus K. Barlow, against Robinson and his wife, and said Barlow, to compel the specific performance of the following contract, and a conveyance of the land therein described, by Robinson and wife to complainant. “Articles of agreement made the thirteenth day of March, in the year of our Lord one thousand eight hundred and fifty-eight, between James H. Robinson of the county of I nia,…

<p>Error to Washtenaw Circuit, to which the case had been transferred from Jackson. All the material facts, appear in the opinion.</p>

Appeal in chancery from Lapeer Circuit. The bill was filed for the foreclosure of a mortgage. Birdsall, one of the defendants, answered, denying that there was any thing due on the mortgage when the suit was commenced. The bill was taken as confessed by the other. defendants.

On July 22, 1858, the defendants in error filed then-declaration in said Court, against Roderick M. Chittendon, Hiram R. Johnson and Hiram R. Andrews, upon a bond given by them, conditioned that said Chittendon should, from time to time, account for and pay or cause to be paid to said insurance company, all such moneys as should be by him received for said company, and well and faithfully execute and perform his duties as agent of said company.

The cause, in the Court below, was referred to a referee, who reported the following facts: “That in the month of May or June, 1860, one Charles E. Bresler made a contract with Eugene St. Amour, for the erection by the said St. Amour, for said Bresler, of a block of buildings . on Michigan Avenue, in the city of Detroit.

Appeal in chancery from Oakland Circuit. Hunter, as executor of the last will and testament of Chipman Hopkins, filed his bill against Greenleaf Hopkins, setting forth in substance; That Chipman Hopkins, in October, 1848, was seized of certain lands, which “he on. that day conveyed to his son Greenleaf Hopkins, the defendant, and took back a life lease.

This suit was commenced by attachment by the defendants in error, against Henry Bower, the plaintiff in error. Declaration in assumpsit on promisory notes, with the common counts annexed, was filed, and to this declaration a plea in abatement was interposed. The writ of attachment was issued on the affidavit of one of the plaintiff^ stating, after alleging the indebtedness of the defendant, that the affiant had “ good reason to believe that the said.

<p>Error to Wayne-Circuit.</p>

<p>Assignment for the "benefit of creditors : insolvency of assignee. — 'In making a general assignment for the benefit of oreditors, the utmost good faith is required of the debtor in selecting his assignee. The selection must be made with reference to the interest of creditors, rather than that of the debtor. Hence, if the assignee be so deficient in age, health, business capacity or standing, pecuniary responsibility or character for integrity, that a prudent man, honestly looking to the interest of the creditors alone, would not be likely to select him as a proper person for the performance of the trust, then his selection will furnish an inference, more or less strong, according to the circumstances, that the assignor was aotuated by some other motive than a desire to promote the interest of creditors.</p> <p>When a general assignment for the benefit of oreditors is assailed as fraudulent, evidence of a general reputation that the assignee is insolvent is admissible, not only as tending to prove insolvency in fact, but also because, if the assignor has knowingly assigned to a person having the reputation of insolvency, this fact would have a tendency to show that the assignment was made for the purpose of inducing creditors to compromise, even though the assignor believed him solvent in fact. ’</p> <p>Witness giving reasons for his attention to the facts to which he testifies.— A witness called to impeach such an assignment, testified that the assignor and assignee had requested him to assist in bringing about a compromiso with the creditors, and had showed him notes upon which the assignee made a claim under the assignment. Being shown notes which had been produced on this trial as the same, he pointed out some differences in appearance, and stated that ho gave particular attention to the notes first mentioned, as to their appearance, the ink, &c. Held that he might then be asked to state any reason or circumstance which induoed him to do so.</p> <p>Proof of record without giving copy. — The deposition of a register of deeds to the oontents of deeds recorded in his office, without giving copies thereof, is inad' missible. And when the purpose for which it is offered is collateral to the issue, the rule is the same as in other cases.</p> <p>Presumption as to objection to incompetent interrogatories having been waived. — Incompetent testimony having been taken on interrogatories and cross interrogatories under a commission, and the Court below having overruled objections thereto, the case was brought up for review on exceptions. On error, it was olaimed by the party who had offered the evidence, that error could not be presumed, and as the record did not show how the interrogatories were settled, it must be presumed that objection was - waived, and the putting of u. cross interrogatory which called for and elicited evidence of the same nature was a waiver of any objections to the evidence brought out by the direct interrogatory. But it was held — nothing appearing to the contrary — that it must be presumed the interrogatories were settled in the usual way, under the statute and rules; and in such case the party may make objection to the • competency of the evidence for the first time at the trial. Comp. Laws, §§ 4257, 4248.</p> <p>Request for instructions to the jury how construed. — On error the Supreme Court must construe a request for instructions to the jury as it must have been understood by the Court and jury had it been given. It must therefore be construed in reference to the evidence in the case upon the subject to which it alludes.</p> <p>Assignment for benefit of creditors; badges of fraud. — Where it appears that the assignee, a short time before the assignment, as an inducement for a third person to loan the assignor money, stated that the latter was perfectly good, and not owing much, the setting up by him of a large preferred claim under the assignment, as having been owing to him before such statements were made, is strong evidence of fraud in the assignment.</p> <p>Assignment by one who is solvent, or believes himself to be so. — -The mere fact of the solvency or insolvency of one who has made a general assignment, or his belief in the one or the other, does not necessarily render the assignment void. Without any fraudulent intent in either case it would be valid, and with a fraudulent intent it would be void in both cases alike.</p> <p>Assignment to prevent sacrifice of property. — The fact that a general assignment is made by an embarassed debtor, whether solvent or insolvent, to prevent a sacrifice of his property, does not necessarily, of itself, render the assignment void. If the sacrifice is sought to be avoided for the sole purpose of giving creditors the benefit of the property, which in case of a sacrifice they would not be likely to obtain to the same extent, then, whether solvent or.insolvent this is an honest purpose, and should not invalidate the assignment. But if the sacrifice is sought to be avoided for the purpose of enabling the assignor to reap a greater benefit, by securing a larger surplus, or retaining the control or use of the property, or in any other way, or for the purpose of compelling a compromise, then the purpose is fraudulent, and the assignment is void.</p> <p>Deed in trust may convey a fee without the word “heirs” — In a conveyance in trust for the sale of land and for the payment of debts from che proceeds, the word “heirs” is not necessary to convey a foe. The trustee must be held to take an estate as large as may be necessary for the purposes of bis trust» whether the conveyance contain words of inheritance or not.</p>

<p>Practice: Writ of error after two years. — A. motion to dismiss is the proper form of objection tó n writ of error in the Supreme Court supposed to be barred by lapse of time. The plaintiff in error may show himself, by affidavit, to comowithin the exceptions of the statute ; and if that fact is disputed, the Court, may resort to such measures as may he found most suitable to have the, question settled.</p>

Appeal in chancery from Shiawassee Circuit. The facts, so far as they bear upon tbe legal questions* are stated in the opinion.

Case agreed upon by the parties, in the Wayne Circuit, as follows: This is an action of assumpsit. The plaintiffs declare upon the common counts, and claim the sum of $5,000. The defendant pleads the general issue. The facts of the matter in controversy are the following. In August, 1860, the plaintiffs entered into a contract with the defendant to do all the paving of the city for that year. The plaintiffs performed the contract in a satisfactory manner.

The action was replevin. Defendant claimed the property under an instrument in the following form: “ James G-.

<p>Guaranty, when continuing. — TIio following was lield not to be a continuing guaranty, but to be limited to a single purchase or transaction: “St. Joseph, Sept. 18th, 1858. Joseph G-ard, Dear Sir: If you will let the bearer have what leather he wants, and charge the same to himself, I will see that you have your pay in a reasonable length of time. J. E. Stevens."</p> <p>Guaranty : application of payments. — Held further, that the first moneys after-wards received by the creditor on the debtor’s general account, should be applied in payment of the leather sold on the guaranty.</p> <p>Practice : Oases made. — Where a case is made after judgment in the Circuit Court for a review on both the law and the facts, it is presumed to contain, all of the evidence, unless there is something on the face of the case itself indicating • the contrary.</p>

<p>Appeal in chancery from St. Clair Circuit. The facts are stated in the opinion.</p>

<p>Practice: trial in Circuit Court after reference to an auditor. — Where a cause haa been referred by the Circuit Court to an auditor, under §4107 of the Compiled Laws, depositions which have been taken by the auditor, and returned into Court with his report, but not attached to or forming a part of it, can not be used as evidence on the trial of the cause in the Circuit Court.</p>

<p>Motion to dismiss an appeal in chancery from the Wayne Circuit.</p>

Appeal in chancery from Wayne Circuit. The bill was to foreclose a mortgage executed by two of the defendants to complainant, to secure the payment of a bond for $2500.

Appeal in chancery from Saginaw Circuit. The principal question in this case was disposed of by a decision of this Court reported in V Mich. 12. By the decree then entered, the case was ordered to be referred to a circuit court commissioner for the county of Saginaw, to take and state an account between tbe parties on a basis then settled.

Case made after judgment, from Livingston Circuit. The facts, so far as necessary to an understanding of the legal questions, are stated in the opinion.

■ Defendants were prosecuted in the Recorder’s Court under a city ordinance, for obstructing tbe Port Gratiot Road by a toll bouse and toll gate.

<p>Appeal in chancery from Shiawassee Circuit. The facts, are stated in the opinion.</p>

<p>Fraudulent grantee to hold in trust for person [cgwilcibly entitled, — Two tenants in. common agreed to hold separate parcels of their land in severalty, hut no releases were executed. Each afterwards sold his parcel, giving a deed of the whole interest as if ho had thad a release from his co-tenant, A grantee of •one of them sold, .taking back a mortgage for the purchase price, and the other, ¡.byi-an understanding with the mortgagor, gave a deed to the mort■gagor’s brother, with the ineention thereby to perfect the title conveyed by his co-tenant. A small consideration was paid for this deed, which, however, -the grantor did not demand. Proceedings being taken to foreclose the mort•gage, this deed was set up as a defense to one half its amount, on the ground •of failure of consideration. It was held, that the grantee in the deed, under the circumstances, took it as a trustee, and the deed must be regarded as a 'mere release of the grantor’s interest, in pursuance of the original understanding between the co-tenants.</p> <p>Forties to foreclosure suit. — The grantee in this deed was held to bo a proper party to a suit to foreclose the mortgage, in order that he {might be deoreed to make his deed properly operative as a release.</p> <p>Title to land: the deeds presumed to show its actual state. — A partnership of three persons owned lands, which, however, had been conveyed to the throe without any reference in the deed to the partnership. It .was held that a mortgage given by one of the three on an undivided one - third of the land, to one who had no notice that it was partnership property, was not affected by the partnership equities. Such mortgagee had a right to assume that the common possession of the three was under and in accordance with the record title, and not under some other and parol arrangement,</p> <p>Foreclosure suit: multiplicity of issues. — Three persons who had held land in partnership sold it, and gave separate conveyances to the purchaser, who, in pursuance of an arrangement to that effect, gave back a mortgage for the purchase price to one of them. The purchaser afterwards bought up a mortgage given by one, on an undivided one{-third of the land, and sought to make a set off of this in a suit to foreclose his own mortgage. But the set off was refused, the Court holding that claims under this mortgage could bo better litigated in a separate suit; and the foreclosure ‘decree was so framed as to leave this prior mortgage untouched.</p> <p>Forties to suit in equity: cestui que trust. — In a suit by a trustee to reduce the trust fund into his possession, the cestui que trust need not be made a party. Sill v. Ketcham, Har. Ch, 423; Morey v. Forsyth, "Wal. Ch. 465; Martin v, McKeynolds, 6 Mich. 70.</p>

Case made after judgment from Livingston Circuit. On April 10th, 1860, plaintiff entered into a contract with defendant to sell him a certain parcel of land for the sum of $2,100, $100 of which was to be paid down, $100 with interest on the whole February 10, 1861, and the balance in five equal annual payments, with annual interest.

<p>Case made after judgment, from Tuscola Circuit. The facts are stated in the opinion.</p>

Joseph Circuit. The Bank of Lansingburgh sued Ives on three ¡promissory notes, dated August 12, 1857, for' $1,066.66 each, payable respectively in three, four and five years from date, with ten per cent annual interest, all given by A. F. Bell, payable to the order of Ives, and by him indorsed. Two of these notes were past due, and four years interest on the other, when suit was brought.

Joseph Circuit. The action was brought for a refusal to deliver thirty-three hogs, bought by defendants in error of plaintiffs in error, and to be delivered at Three Rivers. Ten dollars of the price was paid down, and the balance was' to be paid on delivery. The evidence showed that the price that was to be paid for the hogs was $8 per hundred, live weight, and that this was the market value at the time of the refusal to deliver.

<p>Evidence: admissibility of declarations. — Replevin for certain barrels of apples. Defendant claimed a part of them. It became a question whether these could be distinguished from the rest; and the question of title was also material. On the trial, the defendant, being a witness, was asked whether, at the time the writ was served, his agent pointed out to the officer tho apples he claimed to have bought for defendant; [to which question he replied; “He did: he pointed out two rows, and said, ‘these are the apples which [defendant] purchased yesterday.’” Held, that both question and answer were competent, nob to establish defendant’s title, hut as tending to show whether there was such a confusion of goods that the officer was justifiable in taking possession of more apples than belonged to the plaintiffs.</p> <p>Juror disqualified: objection made too late. — "Where a party is informed during the progress of the trial that a juror is disqualified, but he omits to object until after, verdict, on tho ground that evidence of the disqualification is, not sooner accessible, he will be beld bound by the verdict. Bourke v. James, 4 Mich. 886.</p> <p>Verdict: putting informal finding into sJiape. — Juries rarely give very formal verdicts; and inquiries of tho jurors in Court, and amendments for the purpose of putting in due form what tho jury mean by their finding, are unobjectionable.</p> <p>Party not injured can not complain of error. — A plaintiff in replevin can not complain that the Court awarded nominal damages to him when the jury gave none *, the error, if any, being in Ms favor.</p>

The action below was replevin by Mowrey against the plaintiffs in error, for a horse which had been sold by him to one of them on Sunday. The rulings of the Court below sufficiently appear by the opinion.

<p>Prohibitory Liquor Law: sti.it to recover money paid for liquors. — The statute — Comp. L. §1662 — authorizing moneys paid for liquors to be recovered back, is aimed at sales in the ordinary sense of the term, where the title passes from one owner to a new and different one; and not to releases on the dissolution of a partnership.</p> <p>It was accordingly held, that where one partner purchased of his co-partner the interest of the latter in the partnership stock, he could not, under the statute, recover back the money paid for such interest.</p> <p>Although the Prohibitory Liquor Law avoids all contracts the consideration of which, in whole or in part, consists of liquors sold in violation of the statute, yet if a purchase includes other articles besides liquors, and has been paid for, the statute does not authorize a recovery by the purchaser beyond the amount actually paid for the liquors.</p>

This cause having heretofore been dismissed as not brought in time [ante p. 268], a motion was now made to reinstate the same, on affidavits stating facts to excuse the delay.

Information in tbe nature of a quo warranto. The case was brought to a hearing on demurrer to the replication, and the pleadings are sufficiently stated in the opinion.

Appeal in chancery from Kent Circuit. The defendant Taylor petitioned the Court below to set aside a sale which had been made under á decree in chancery in a foreclosure case. The case was heard on the petition, and on affidavits and counter affidavits, the result of which is’ stated in the opinion. The Court below denied the prayer of the petition, and Taylor appealed.

<p>Error to the Recorder’s Court of Detroit, where plaintiff in error was convicted on a prosecution for obstructing a public alley. The facts sufficiently appear by the opinion.</p>

Case made after judgment, from Jackson Circuit. The case was brought into the Circuit Court by appeal from au order of the Probate Court disallowing a claim presented by tbe plaintiff against the estate of said Stanton for the amount of three promissory notes transferred by said Stanton to the claimant, and which the latter had failed to collect.

<p>Appeal in chancery from the Wayne Circuit. The facts are stated in the opinion.</p>

June 1st, 1861, George B. Russell made a note for $548.42, payable on the first of September following, to the order of C. I. & E. C. Walker, at the Michigan Insurance Bank, Detroit, with eight per cent interest. This note was indorsed by the Walkers, to plaintiff, who resides in New York city.

Appeal in chancery from Wayne Circuit. The bill was filed to foreclose a mortgage given by Gideon O. Whittemore to complainants. Charles H, Whittemore was made a defendant, among others, as subsequent purchaser. The bill was taken as confessed by all the defendants except said Charles H. Whittemore, who answered, contesting the validity of the mortgage, and the case as to him was heard on pleadings and proofs.

The action was upon a ' promissory note given for standing timber bought by defendant of plaintiff. In defense it was claimed that plaintiff was not the owner of the land on which the timber stood; and to establish this, defendant offered in evidence a deed from Morris Ketcham to Horatio J. Lawrence, of the same lands.

Certain freeholders of Springwells made an application in due form of law for the laying out of a highway in said township, extending from a certain point north of the Detroit & Toledo Railroad southerly across said road and Fort street to the River Rouge.

Charles E. Dewey and Alvin Crossman, suing for the nse and benefit of Terbell, Jennings and Millspaugb, brought suit against the plaintiffs in error in assumpsit.

Appeal in chancery from Wayne Circuit. The bill was filed in 1851, to correct a mistake alleged to have occurred in a deed bearing date December 31, 1816, given .by the Governor and Judges of the territory of Michigan to Benjamin Woodworth. The mistake consisted in describing therein, as the premises granted, a lot which had before been conveyed by the Governor and' Judges, instead of adjoining premises, which it was understood and agreed should be granted by it.

September llth, 1861, Van Renselaer recovered judgment against John L. Whiting and J. Tallman- Whiting, for $2198.83, in an action of assumpsit on the common counts. In December following J. Tallman Whiting made affidavit that he was only justly liable for $798 of the judgment, and explained his failure to make defense in due time; and upon this and others moved that the judgment as to him be vacated.

Hanson brought suit against Oleott, on a promissory note of $85, dated March 28th, 1859, on which several indorsements had been made. Oleott pleaded the general issue, with notice of various items of set off. On the trial in the Circuit Court, June 17, 1863, the •defendant offered evidence of a payment of five dollars, made on the note in November, 1860.

Appeal in chancery from Washtenaw Circuit. The complainant having obtained a divorce from the defendant, with decree for. the payment by him of $1000 alimony, the defendant afterwards filed his petition for a revision and alteration of this decree, giving as a reason why it should he changed, that he was not aware when the decree was rendered that the complainant would also he entitled to dower in his real estate, and that, in view of that right, the sum awarded was…

Joseph A. Moross, Julia Beaubien and Rose J. Moross, presented to the Probate Court for the County of Wayne, for probate and allowance, an instrument dated January 12, 1858, purporting to be the last will and testament of Antoine Beaubien, and attested by Isaac S. Smith, Israel A. Moross and F. Provost as subscribing witnesses.

Information in the nature of a quo warranto. Held: and votes cast to fill the office of city attorney, for the term of two years, commencing, according to the city charter, on the second Tuesday of January, that is to say, the 12th day of January, 1864, this defendant says that there was a general election held on the third day of November, 1863, in said city, to fill the office of…

Information in the nature of a quo warranto. The Attorney General filed his information against the defendants, charging them, with usurping banking franchises. The defendants filed their plea .thereto, claiming to be exercising such franchises by virtue of a charter granted by the territorial council of the territory of Michigan, on March 26th, 1835, under which they organized April 23d, 1835.

Appeal in chancery from Genesee circuit. The original bill was filed by Avery for a partition of certain lands situate in the county of Genesee, of which the bill alleges complainant and defendant are tenants in common, each owning an undivided moiety; that com plainant became such owner and tenant in common by a deed of conveyance from defendant Payne and wife on or about the 19th day of February, 1856; that complainants at the time of such conveyance gave back to Payne a…