Volume 13 — Michigan Reports

Case made after judgment, from Saginaw Circuit. In tho Court below judgment was rendered for the defendant upon the merits. The facts, so far as necessary to an understanding of the legal questions, .are stated in the opinion of the Court.

This was an action of trover brought by Erwin — the plaintiff below — to recover for the conversion of five himclrecl bushels of wheat. Plea, the general issue.

Case made after judgment from' Cass Circuit. This was an action of assumpsit brought to recover damages for not. building a house an>d barn according to contract, and was tried by jury. On the trial, a witness for the plaintiff was asked, “What is the difference between the value of the house as it now is, and as it would iiave been had it boon built according to contract?” The question was objected to as incompetent.

Trover for steam engine, etc. The case was tried by the Court, who found the facts, and rendered judgment upon -the finding for the plaintiffs. The facts are sufficiently stated in the opinion of the Court.

Case made after judgment from St. Joseph Circuit. Assumpsit on a promissory note ■ executed by tbe defendants to tbe plaintiffs. Plea, the general issue With notice of special matter. Trial by jury. On the trial the execution of the note declared upon was admitted.

This was an action of debt on a Justice’s judgment. The plaintiff in error (defendant below,) demurred to the plaintiff’s declaration, and the demurrer was overruled. The defendant (below) then pleaded the general issue, and the cause was tried by the Court without a jury, and judgment rendered for defendant in error, (plaintiff below.) The pleadings and facts are sufficiently stated in - the opinion, of the Court.

Case made after judgment from Washtenaw Circuit. Held: revising so far the. decree of the Probate Court, that the bequests to the Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States, the American Bible Society, the Seaman’s Friend Society, and the Society for the Relief of Widows and Orphans of Deceased Clergymen of the Protestant Episcopal…

This was an action of trover for the conversion of a horse. The declaration was in the usual form. The plea was the general issue with notice of justification under a tax warrant. The. ease was tried by a jury who returned a special verdict, upon which the Court rendered a judgment for the defendant in error, who was the plaintiff below.

This was an action for false imprisonment. Plea, the general issue with notice of matter in justification. The case was tried by a jury, who returned a verdict for the plaintiff and assessed him damages at one dollar.

Error .to Wayne Circuit. The • action was assumpsit, and the case was tried by ■a jury.

This was an appeal to the Circuit Court from the judgment of a Justice of the Peace. In the Circuit, it was referred, and the referee reported, among other things, that this claim had been litigated in a prior suit, before.

The action was debt, upon a judgment rendered in, the State of New York.

In the fall of 1862 the defendant, Dacon, was the owner of a quantity of wheat in store at the warehouse of the Michigan Southern and Northern Indiana Railroad Company, at Hudson station, and for which he held' the receipts of the Railroad .Company, in the following form: “No. 88. not transferable. “ Michigan Southern Hudson Station, Nov. 8, 1862. “ Received, under the conditions and stipulations of this receipt, for account of M. Dacon, 2105 pounds red wheat to be forwarded…

The case was brought to the Circuit by appeal from a Circuit Court Commissioner, before whom proceedings were- commenced, .by defendant in error against the plaintiff in’ error, to recover the… Held: and that the complainant was entitled to claim and have the restitution of the said premises in this suit, and renders .judgment accordingly, with the costs of the suit, against said defendants.

This was an action on the case brought against the defendant, as township supervisor, for refusing to assess upon the taxable property of school district number five, in the township of Almena, the amount of a judgment, which the plaintiff had recovered against said district. The case was tried by the Court, without a jury, and the finding and judgment were as follows: “JFirst.

■ The action was assumpsit for money had and received* to which defendant pleaded the general issue. The facts sufficiently appear in the opinion of the Court.

The plaintiff’s declaration, besides the common money ■counts, contained the following special count: “ For that whereas the plaintiff, at the city of Detroit, in said county of Wayne, and on or about the first day of May, 1860, at the request of said defendant, did make .and enter into an agreement with said defendant for the .hire and renting of his, the said plaintiff’s, said dwelling house, situated on the east half of lot two, on north sido of Woodbridge street, and on…

<p>Fraud in obtaining tax deed —owner of land seeks relief — conveyance decreed. —Defendant having purchased complainant’s land at a tax salo, tho latter, shortly before timo for redemption expired, offered to pay him the amount of his bid, with twenty-five per cent, intorest thereon, for assignment of the certificate of said sale, and defendant promised that ho would send complainant an assignment of said certificate, and acoept the amount of said hid and intorest, within two or three days. Complainant, relying upon the defendant’s promise, permitted the time for redemption to expire, after which defendant obtained a deed from the Auditor General, and upon a tender subsequently made to him, of the amount of his bid, with interest and charges, refused to accept the same, or to execute a deed, of said land to complainant;— Held, That defendant’s conduct, under the circumstances, was a fraud-upon complainant, and that tho latter was entitled to a decree against him for conveyance of said property.</p>

<p>Voting — where ballot must be cast. — The provision of the Oonstiution (Sec. 1, Art. vii,) “ That no citizen or inhabitant shall be an elector, or entitled to vote at ‘any election, ‘unless he has resided in the township or ward in which he offers to vote, ten days next preceding such election,” was designed, and has the effect to require that each elector shall in person cast his ballot in such township or ward.</p> <p>Soldiers' voting Law. — The act of February 5, 1864, (Latos of 1864, p. 40,) known as the soldiers’ voting law, is in conflict-with said provision of the Constitution, and is, therefore, void.</p> <p>The source and object of a State Constitution, and the proper rules for its construction discussed per Campbell and Cooley J. ‘J.</p> <p>The doctrine laid down in the case of Sears v. Cottrell, 5 Mich., 250, as to the general purposes of a State Constitution, and the extent of legislative powers under it reaffirmed, per Christianoy 3.</p>

Michael commenced proceedings before a Circuit Court Commissioner to recover possession of certain premises.

<p>Sight draft — presentment of — reasonable time for. — A draft, payable at sight, should be presented for payment within a reasonable time; and no delay is reasonable beyond that which may be fairly required in the ordinary course of business without special inconvenience to the holder, or by the special- ' circumstances of the case. —11 Mich., 501.</p> <p>Delay of presentment — excuse for.— "Where a debtor turned out to his creditors a draft payable in “Chicago exchange,” to be collected and applied on his debt, and the creditors received in payment of it, a sight draft on Chicago, payable in “ current funds,” which they neglected to present for payment for twenty-one days, when it might have been presented-within a few hours; — Meld, that said ’delay was unreasonable, and was not excused by the fact that the creditor retained the draft for the purpose of procuring instructions from his debtor as to the funds he should receive in payment.</p>

- The case was an action of debt on a replevin bond; was tried by the Circuit Judge; without a jury, and judgment rendered for the plaintiffs, (defendants in error.)

<p>Declaration on simple contract — statement of consideration. — In declaring upon ar simple contract, except those which import a consideration, the whole con- • sideration should he set forth, so as to show distinctly in what it consists, in order that the Court may judge of its sufficiency to sustain the promise alleged.</p> <p>Defective statement of consideration in a declaration — issue of fact joined. — A statement of consideration in a declaration that is sufficient to sustain a judgment, though so defective as to he fatal to the declaration on demurrer, cannot he taken advantage of upon a trial of an issue of fact.</p> <p>When defective allegation of consideration will sustain a judgment. — An allegation „ of consideration in a declaration, though defective, will he sufficient to sustain a judgment, when, from the issue as actually made, it can fairly he presumed that the evidence necessary to establish a case was given under it.</p> <p>Therefore, where a declaration alleged a sale, and an agreement hy the defendant to deliver goods “for a good and valuable consideration, paid hy the plaintiff to the defendant,” and, upon an issue of fact and trial, judgment was rendered for the plaintiff; — Held, That said allegation of consideration, although it could not have been sustained on demurrer, was sufficient to support the judgment.</p>

<p>'The Stamp Act.— A person being tbe bolder of a draft drawn in August, 1868, made a gift of it, causa mortis, to ber mother, and, after ber death, her administrator, treating the draft as void for want of requisite stamp, brought suit against the drawer for the original consideration. The drawer, defending in the interest of the donee, produced the draft on the trial and placed the requisite stamp upon it in pursuance of the act of Congress of June 30, 1864; — Held, That the 'draft was thereby rondered valid from its date, thus making said gift effective, and that plaintiff could not recover.</p> <p>Right to avoid one’s contract, not property — Stamp Act. — The right to avoid one’s contract because of his own non - compliance with a statutory requirement, cannot be considered as property, and hence said act of Congress permitting a stamp to be affixed to an instrument subsequent to its execution, thereby rendering it valid, is not void as being in conflict with the provision of the constitution which forbids that any person shall be deprived of property, etc. except by due process of law.</p>

<p>Appeal in Chancery — return ¿o.— The statute — Laws of 1858, p. 5 — requiring the return to an appeal in Chancery to be made to the nearest Clerk’s Office, is merely directory; and an appeal will not bo dismissed because the statute • in this respect is not complied with.</p> <p>Chancery appeal bond — power of Court to permit the filing of new one. — A Cham eery appeal bond should have at least two sureties; but if it is filed with only one, or is defective for any other reason, the Court has power under the statute — Compiled Laws, §4542 - 3 — to permit a new hond to he filed, or an amendment of the one already giveD.</p>

<p><Challenge of jurors — statute in relation to — when error in decision open to review.— The distinction between challenges of jurors for cause and for favor is practically abolished by the statute, (Comp. L., §4400,) all challenges being now for cause, and to be tried in the same manner; and when there is no dispute about the facts upon which a challenge is based, the ^ decision of the question is purely one of law, and open to review on exceptions.</p> <p>Challenge in criminal cases — doubts of impartiality. — In a criminal case, upon the challenge of a juror, if the examination leaves a reasonable doubt of his impartiality, the defendant should have the benefit of the doubt, and the juror bo excluded.</p> <p>Jurors presumed qualified. — A person callod as a juror is.presumed to be qualified and impartial, and the party challenging assumes the burden of proving the contrary, and does not relieve himself of that burden until .he has made out a prima facie case, or, in criminal cases, such a case as leaves the juror’s impartiality in reasonable doubt.</p> <p>•Opinion as cause of challenge. — The law does not require a juror to be entirely unimpressed with any opinion as to the guilt or innocence of the person on trial, but simply that he shall not have an opinion of such fixed and definite character as to leave a bias on his mind that will preclude his giving duo weight)to the presumption of innocence.</p> <p>Whore, in a criminal case, a juror, being examined as to his competency, said, “I have formed a partial opinion as to the guilt or innocence of the prisoner, from rumors heard in the streets, but not a positive opinion;” — Held, That .such statement did not establish the juror’s incompetency.</p>

Motion by tbe relator in an information in tbe nature of a quo warranto, to dismiss the same. The facts upon which the motipn was based are stated in the opinion of the Court.

<p>Services rendered for counties within meaning of the constitution. — The provision of the constitution (Art. 10, Sec. 10,) that “the Board of Supervisors, or, in the County of Wayne, tho Board of County Auditors, shall have tho exclusivo power to prescribe and fix the compensation for all services rendered for, and to adjust all claims against, their respective counties, and the sum so fixed or defined shall be subject to no appeal,” does not embrace those cases where charges have been laid on counties simply as a fair way of apportioning the public debt, Jand^ where no benefit accrues to them in their corporate capacity.</p> <p>Where the law has, in such cases, pointed out any other mode of adjustment or regulation of salaries or compensation, than that by the County Boards, tho latter have no right to review, but must allow and pay them as thus adjusted.</p> <p>Clerk of Police Court of Detroit — his services not rendered for the county. — Tho services of the clerk of the Police Court of the City of Detroit are not . “ services rendered for Wayne County” within tho meaning oX Section 10, Article 10 of the constitution, and, therefore, the provision of the statute, (Laws of 1863, p. 332,) empowering the Common Council to prescribe the salary of such clerk, is not in conflict with said section of the constitution, and is* valid.</p>

Information in the nature of a quo warranto. This case was one of several in which, the defendant’s default having been entered, and more than four days thereafter having expired, the counsel for the relators moved for judgment in favor, of their right to the respective offices.

, The action was trover for the conversion of a horse. Plea, the general issue with notice of special matter. The facts sufficiently appear in, the opinion.

The Commissioners of Highways for the Township of Springwells having. ordered the laying out of a certain ■highway through the property of the relator, which order, on appeal to the Township Board, was affirmed, the relator sought by a writ of certiorari to bring the matter before this Court for review.

<p>Motion for mandamus.</p> <p>The facts are stated in the opinion.</p>

<p>Chancery orders — what errors in, cannot he waived. — An order in Chancery will be reversed, on appeal, by this Court, for errors which affect prejudicially the rights of infants, or go to the jurisdiction of the Court to make the order, even though no objection be made by tho parties to the order for such errors. They cannot be waived by the consent of parties.</p> <p>Application for surplus money after mortgage sale — who entitled to notice. — Where an application is made for the surplus money after satisfaction of a decree of foreclosure, all the parties to the foreclosure suit are entitled to notice, in order that they may appear and contest the right of the applicant, and assert their own; and an order for payment of such money, without notice to the parties, or an appearance by them, is erroneous, and will be reversed.</p> <p>The surplus money remaining in Court, upon a sale under a decree of foreclosure, after satisfying the decree, is personal* estate; and if the owner of the equity of redemption dies subsequent to the sale, his personal representatives should be made parties to a petition for such surplus.</p> <p>Surplus money —who not entitled to. — Where the mortgagee of lands had obtainod a decree of foreclosure, by virtue of which the property had been sold, and, being also a judgment creditor of the mortgagor, had an execution levy on the mortgaged premises —to which, however, the mortgagor had no title at the time of the levy — it was held, that he was not entitled to an order for the surplus money remaining in Court after satisfaction of the decree, even though the mortgagor, during Jthe pendency of the foreclosure suit, to which he was a party, and prior to the decree and sale therounder, had become, the owner of the equity of redemption.</p> <p>Dfants — Chancery order on admission of invalid. — A Chancery order granted on the admission of infants is erroneous, and will be reversed, on the ground that infants are incompetent to make such admission binding upon their rights.</p> <p>Costs —when should not be awarded against infants. — In a Chancery order affecU ing the rights of infants, where, to hind them, it was necessary to procure such order, and where nothing more has been done by them, or on their behalf, than to present to the Court such facts as show their rights in the-matter, costs should not he awarded against them.</p>

<p>Indorser's liability — proof that note was discounted for his benefit not admissible.— The indorser of a promissory note, for whose benefit the note is discounted, does not thereby incur any other liability than that of his indorsement; and, therefore, in an action by the assignees of a bank against the indorsers of a note, it was held not competent to show that a note, in renewal of which the one in suit was made, was discounted by the bank for the benefit of one of the indorsers, and that the money was paid to him.</p> <p>Held, also, in such case, that it was not competent for the plaintiffs to show that the note, in renewal of which the one in suit was given, was purchased of the maker thereof by one of the indorsers for a sum less than its face, as such evidence could have no tendency to fix the legal liability of the indorser to pay the note.</p> <p>Receiver's sale of note — what was said to be due not evidence. — In a suit upon a promissory note purchased at a receiver’s sale, evidence by defendant, to show what was stated to be- due on it at the time of such sale, is not admissible.</p> <p>Sale of note pending suit — set off. — Where, in a suit by the assignees of a bank, against the indorsers of a promissory note past due when assigned, the note, pending suit, became the property of another, it was held that the suit did not thereby abate, but might be prosecuted for the benefit of such purchaser, and that the note was subject to any set off which could have been made against it in an action by the bank itself.</p> <p>Set off by defendant of individual claim after death of co-defendant. — And where in such case, pending suit, one of the defendants died, and the survivor held a certificate signed by one of the plaintiffs as acting assignee of the bank, certifying that he had deposited a certain sum with tho assignees, and that the same. constituted a claim in liis favor against the assets of the bank, it was held that the amount due on such certificates was proper matter of set off in favor of such defendant.</p> <p>Indorser — 'tender by¡ in depreciated bank bills —its effect. —& tender by the indorsor of a note, of the sum due thereon in depreciated bank bills, without explanation, is, in legal effect, an offer of compromise, and not of paymont, and cannot operate as a waiver of notice, or an unqualified acknowledgment of liability by him.</p> <p>Indorser — part payment by, in depreciated bank bills — its effect. — The mere fact of part payment of a promissory note by an indorser in depreciated bank bills, will not have the effect of an unconditional acknowledgment of liability to pay the whole.</p> <p>Indorser — when his knowledge of defective notice must be shown. — Nor will proof of part payment by an indorser,|in any case, have such effect, where it appears that the notice of protest was insufficient to bind him, without further showing that, at the time of such payment, the indorser had' knowledge that due notico had not been given.</p>

Assumpsit. In addition to tlie common counts, tbe declaration contained a special count, setting- forth a deposit with the defendant below of $600 by one John B. Simson, a check drawn by him in favor of the plaintiff - upon the defendant for that amount, and that said check was an assignment of said sum to the plaintiff, the consequent liability of the defendant,, its promise to pay and a breach thereof. Trial by jury.

Ejectment. The case was tried by the Court, without ■ a jury, and judgment rendered for the plaintiff. Defend'ant brought error. Tbe finding by tbe Court was as follows: ' Tbe land in controversy is tbe undivided third of tbe west half of tbe south-east quarter of section seven, in town six, north of range eleven west. From tbe testimony in this case, I find tbe facts to be: AS TO GOVERNMENT TITLE. ‘ 1.

Appeal in Chancery from Washtenaw Circuit. By tbe decree of the Court below, thé bill of complaint was dismissed. The facts are stated in tbe opinion.

<p>Limitation laws. — The Legislature has general power to pass limitation laws* prescribing the time within which parties shalL assert their rights by suit * but this power is not so unlimited as to enable it, under the form of a limitation law, to take away all remedy.</p> <p>Retrospective laws — when invalid'. — A legislative act, retrospectivo in its operation* and cutting off all remedy for the lapse of time occurring before it became a law, would violate the constitutional provision against depriving a person of property without due process of law, and, therefore, could not be sustained.</p> <p>;Statute does not affect rights until operative as a law. t~ A statute passed to take effect at a future day is to be understood as speaking from the time it goes into operation, and not from the time of its passage. The intervening period , is allowed to enable the public to become acquainted with its provisions; but until it becomes operative as a law, they are not compelled to govern their-actions by it.</p> <p>Where, therefore, by the law, as -it stood on the 31st day of December, 1863, a person had sixteen years in which to bring suit for the recovery of a parcel of land claimed by her, and Act 35To. 227 of 1863, (Laws of 1863, p. 388,) if applied to the case, would have the effect, the moment it became operative, to cut off all remedy, it was held not to apply to such case.</p>

<p>Detroit City Marshal — His term of office. — The term of the office of Marshal for tho City of Detroit as fixed by Sec. 13, ch. 2, of tho Amended Charter, (.Laws of 1861, p. 181-2) is two years, and this term is not abridged or affected by the provision of Sec. 2 of the same chapter.</p> <p>Appointment to office —when removal of incumbent. — Under said Amended Charter, S, was appointed by the Common Council of the City to the office of Marshal for one year, and gave a bond in which bis appointment for that time ‘was recited. At the expiration of the year, the Council, without his consent, or in terms, removing him, appointed another to tho office, who entered upon and performed its duties. In an action brought by S. to recover his salary as Marshal for the second year: Held, That by virtue of his appointment, S. was entitled to hold the office for two years, and to receive the salary for the full term; that tho recital in said bond of an appointment for one year was surplusage, and the bond was valid for the full term; and that the appointment of another to the office was not equivalent to a removal of S. and did not divest him of the office.</p>

<p>jReceiving stolen goods — Evidence.—Where one was charged with receiving stolen goods, knowing them to have been stolen, and a witness testified that ho was present at an interview between the prisoner and her brother a few days prior to her arrest: Held, that what was said by the brother at that interview about sending the goods in question to the house of defendant, was proper , evidence as tending to show the circumstances under which she received, them.</p> <p>Offence of receiving stolen goods — possession of the goods, no evidence of guilt— Possession of stolen goods is no evidence of the guilt of the person charged with receiving them, knowing them..to have been stolen, and the circumstances, arrangement or understanding, under which the goods were received, may he shown as affecting the question of guilty knowledge.</p> <p>Statement of Prisoner. — ‘Where a defendant made a statement under the Act of 1803, and the Judge charged the jury that “he did not think such statement would warrant them in setting aside unimpeached sworn evidence.” Heldy. that such charge was erroneous, and that if the jury believed such statement to be true against sworn evidenoe to the contrary, there is no arbitrary rule of law to prevent them from acting upon such belief.</p>

Appeal in Chancery from St. Clair Circuit: The bill was brought to enforce an alleged forfeiture under a contract, and to cancel a deed claimed to have been improperly obtained. By the decree of the Court below, the deed was declared to be wholly inoperative and void. The defendant appealed. The facts are sufficiently stated in the opinion.

<p>Error to the Recorder’s Court of Detroit.</p>

<p>Deeds of Governor and Judges —Recording laws. — Conveyances of land from the United States, whether directly through the President, or indirectly as through the Governor and JudgoB of Michigan, do not come within the purview of the recording laws, except where the terms employed specially include them; and there is nothing in the laws now or heretofore existing in this State that will render a deed from the Governor and Judges void in favor of a subsequent purchaser, from the same source, without notice whose deed was first upon record.</p> <p>Bill to quiet-title.--A. bill to quiet title will bo entertained on behalf of the legal owner when he is not in a position to force the adverse claimant into a Court of law to test, its validity; but when each party claims the legal title, and a Court of law is already possessed of thecaSe, and it is not alleged that either fraud, accident or mistake hag intervened to prevent the possessor establishing his title at law, equity will not interfere.</p> <p>Proof of case not stated in the pleadings. — Where the complainant in a bill to quiet title to lands set up the legaj. title as being in himself, but the evidence taken in the cause showed it to be in the adverse claimant, and also showed :a complete equitable title to the land in the complainant, it was held, that mo relief could be gvanied, as the case shown by the evidence differed from that stated in the bill.</p> <p>Held also, that estoppels, where they form the foundation of the relief asked, and are relied upon to defoát a legal title, cannot be proved, unless alleged. Cicotte v. Gagnier, 2 Mich. 3S9.</p> <p>Partnership — lands received by, in payment of debts — Lands conveyed to the members of a partnership in satisfaction of a partnership debt, are to be regarded, for all purposes of arranging balances between the partners, paying debts, and closing the partnership business, as personal property. And where one of the partners afterwards exchanged a lot so received, for another, giving a deed in his own name alone, and the lot received in exchange was sold by him, and the proceeds received by the partnership'; — Held, That the Court would presume knowledge on the part of all the partners of such exchange, and that the receipt by the partnership of the proceeds of the lot sold, estopped the heirs of the partners not joining in such, deed from after-wards setting up a claim to the lot first named.</p>

Appeal in chancery from Wayne Circuit. The facts, so far as they are necessary to an understanding .of the legal questions involved in the case, will be found stated in the opinion.

Appeal in Chancery from Berrien Circuit. The complainant filed his bill on the lVth day of August, 1868, to foreclose a mortgage bearing date September 8, 1856, made by John S. Ingersoll, one of the defendants, and Arnold P. Lane, (since deceased) to the complainant, to secure the payment of $110. The mortgage was duly recorded.

Case made after judgment from Ionia Circuit. Judgment of the Court below was for the defendant. The facts are sufficiently stated in the opinion.

<p>Agreement to pay debt in gold, illegal. — The law of Congress making treasury notes a legal tender in payment of private debts, was not designed to confer a personal privilege upon debtors, but is based upon principles of State policy; and an agreoment between parties waiving its provisions, and requiring a debt to bo paid in gold, is illegal and cannot be sustained.</p> <p>Where, therefore, a person gave his note in 1862 for the sum of $800, providing that $500 of it should be paid in gold; and in a suit subsequently brought upon it, the plaintiff was permitted to show that gold was worth a premium of fifty per cent, in treasury notes, and judgment was rendered for an amount computed on that basis; it was held, that such judgment was erroneous, and should have been simply for $800 and interest.</p>

Quo warranto. The following are the admitted facts in this case: At the general election held in November, 1864, the respondent and one Francis Darrow were opposing can-dictates for the office of Judge of Probate for the County of Oakland. The inhabitants of the township of Pontiac, in said county, held the township .polls at that election in the city of Pontiac, and there voted.

<p>Rape, — what constitutes. — 0araal knowledge of the person of a female over ten years of age, unaccompanied with any circumstance of force or fraud, does not constitute the crime of rape, either at common law or under the statutes of this State.</p> <p>Where, therefore, a man had criminal connection with a woman of mature years, of good size and strength, but who was shown by the testimony to be in a state of dementia — not idiotic, but .approaching towards it; and it appeared, that no fraud or force was used by him. Held, That such act did not constitute the crime of rape.</p>

<p>-Report of referee —error in its conclusions of law — how advantage can be taken of.— Sec. 6 of the Referee Act, (Laws of 1861, p. 157,) is to be understood as providing simply that the report of the referee, when not excepted to, shall stand as the finding or determination of the Court in term time for the purpose of authorizing the party in whose favor it is made to take judgment upon it as of course.</p> <p>And, in such case, where the report is not excepted to, this Court, on error brought, will not set aside the judgment, as in the case of a judgment on special verdict, on the ground that the finding does not contain the facts and circumstances necessary to sustain the conclusions of law, but ^uch question can only be raised by excepting to the referee’s report, in accord* , anee with Sec. 7 of said act.</p>

Tbe defendants were tried and convicted on an- information, of wbicb tbe following is a copy: Charles M. Walker, Prosecuting Attorney for the county of Lapeer aforesaid, for and in behalf of The People of the State of Michigan, comes into said Court in the December term thereof, * A. D. 1860, and gives it here to understand and be informed that heretofore, to-wit, on the 6th day of November, 1860, at North Branch, in said county, one Abraham Moyer appeared before David C.…

Appeal in Chancery from Kent Circuit. The complainant in this case filed his bill to procure a decree annulling his marriage with defendant, upon the ground of fraud in the marriage contract. The bill set forth his marriage with the defendant on the 24th day of May, 1841; that they lived together in that relation until the month of January, 1862, and that there were eight children issue of said marriage, seven of whom were still living.

The return to the writ showed the following facts: On ..the 9th day of September, 1864, application having-been made by seven freeholders of the town of Springwells for a highway in said town, the commissioners of highways proceeded to view the premises described in said application, and ordered and determined' in favor of laying out such highway.

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

<p>.Judicial notice. — Courts are bound, judicially, to take notice of what the law is, and to enable them to determine whether all tho constitutional requisites to the validity of a statute have been complied with, it is their right, as well as duty, to take notice of tho journals of tho Legislature.</p> <p>ijBut, although the Courts are bound to take judicial notice of legislative action, so far as it affects tho validity of statutes, they have no such power as respects the facts attending the election of the several members of tho Legislature, even after such facts have been spread upon tho legislative journals.</p> <p>*Constitutional law — each house exclusive judge of election qf its own members,— The constitution (Sec. 9, Art. 4,) providing that “each house shall judge of the qualifications, elections and returns of its members,” confers upon each house powers of a judicial nature, in the exercise of which its decision is conclusive, and not subject to review by-the Courts.</p> <p>■“Therefore an act of tho Legislature cannot be declared void because a portion of the members voting for it, and whose votes were necessary to its passage, were not legally elected, and wero retained in their seats by a decision opposed to the constitution.'</p> <p>Constitutional lato — Legislative acts, their title. — Tho provision of tlio constitution 1 (Sec. 20, Art. 4,) that “no law shall embrace more than one object, which, shall bo expressed in its title,” was designed to prevent, 1st, the joining in the same bill subjects diverse in their natures, and having no necessary connection; and, 2d, the insertion of clauses in a bill of which the title-gives no intimation,</p> <p>Detroit Police Act — The Police Act for the City of Detroit (Laws 1865, p. 99> has for its object tho singlo purpose 'of establishing a police government for that city, and this object is fairly indicated by its title. It is, therefore, not in conflict with the provision of the constitution above quoted.</p> <p>Constitutional law — Legislative acts amending''prior acts by implication. — A law which does not assumo, in terms, to revise, altor, or amend any prior act, or section of an act, but by various transfers of duties has an amendatory effect by implication, although it expressly repeals all inconsistent acts, does not conflict with Sec. 25 of Art 4, of the constitution.</p> <p>It is not the meaning of this provision of the -constitution that upon tho passage of each new law, all prior laws which it may modify by implication shall be re-enacted, and published at length as modified.</p> <p>Constitutional law — Limitation upon taxation in cities and, villages, — The provisions , of sections 22 and 82 of said Police Act, which make it the duty of the Board of Police to proparo and submit to the City Controllor, on or before tho first of Kay in each year, an estimato, in detail, of the cost and expense of maintaining tho police department, and require the Common Council of the city to raise the same by tax, are restrictive of the power of taxation within the meaning of Sec. 13, Art. 15, of the constitution.</p> <p>The constitution has not prescribed the character of the restriction which shall be imposed in such cases, and an act which limits the power of taxation as in this act, is as much a restriction as if it confined the power to a certain per centage upon taxable property, or proportioned to the number of inhabitants in the city.</p> <p>Nor are sections 22 and'32 of said act subject to the objection of not distinctly stating the tax and the object to which it is to be applied, within tho meaning of Sec. 14 of Art. 14, of tho constitution.</p> <p>Constitutional law — violation of fundamental principles in legislation — Legislation, ' in violation of sound political principles, but which does not infringe tho constitution, cannot be declared void on that ground.</p> <p>Said Police Act having abolished the office of City Marshal, tho Legislature after-wards, at the same session, passed another act amending the charter of the city of Detroit, in respect to the number of jurors to bo summoned for the purpose of opening, closing and altering streets, using tho language : “ to bo summoned by the 'Marshal.” Held, that said act did not have the effect to \continue said office.</p>

<p>Stay of execution,— attestation of by the Justice. — The undertaking of one who became surety for a stay of execution in pursuance of the statute, is in the nature of a confession of judgment, and to render the same obligatory upon tho surety, it must bo executed in the presence of the Justice, and bo witnessed by him.</p> <p>¡The subscription by the Justice to an undertaking by a surety, in due form, to stay an execution, approving such surety as stay, is not a sufficient attestation within the meaning of §3804= of the Comp. Laws, and an undertaking so attested is void.</p>

<p>Examination before magistrate, — The provisions of the act of 1859, (Laios of 1859; p. 393,) in reference to the examination before a magistrate of persons charged with offences, were designed, to some extent, to accomplish the purposo of a presentment by a grand jury, but it was not designed that the complaint or warrant before tho magistrate should stand in placo of a formal presentment, nor that, in the Circuit Court, the prosecuting officer should he limited by it in the mode of charging tho offence.</p> <p>Parties jointly examined may be separately informed against — Accomplices as witnesses.— When several persons are joined in a complaint before a magistrate and bound over, the prosecuting officer may file a separate information against each in tho Circuit Court, and the relation of parties so informed against is no other than that of accomplices, and does not disqualify them as witnesses against each other.</p> <p>Evidence —impeachment by proof of character for truth— cross-examination, — Where a witness called for the purpose of impeaching another, testifies to his bad reputation for truth, and upon cross-examination, gives the name of a person he has heard speak against him, tho witness may be required to stato what was said by such person.</p> <p>In nothing may parties bo more easily mistaken than in judging of the general reputation of another for truth, and nothing short of a cross-examination, which compels the impeaching witness to state tho sources of the reports and their nature, will enable the party either to test tho correctness of the impeaching evidence, or to protect the witness who is assailed, if assailed unjustly.</p> <p>Statement by defendant in criminal cases — The purpose of the act permitting defendants in criminal cases to make their statement to the jury, (Laws of 1861, p. 168,) was to give every person placed on trial on a charge of Crimean opportunity to make full explanation to tho jury in respect to tho circumstances given in evidence, which are supposed to havo a bearing against him,, and to make such further statements as ho may deem material.</p> <p>Statement by defendant in criminal cases, aid of counsel in. — Where a person,, being on trial for larceny of a horse, made his statement to the jury, hut omitted to say anything in regard to tho material points in tho case, and hie counsel, without his knowledge, submitted to tho Court, for approval, a suggestion, in writing, to tho prisoner in the following language : “ I call your attention to the subject of the stolen mare, so that you may make a statement in reference to it or not” and tho prosecuting attorney objecting, tho Court refused to permit such suggestion to he made. Held, that tho Court erred in its refusal, and that the suggestion of counsel in tho manner proposed was unobjectionable and should havo been permitted.</p> <p>Held, also, that'this error was not cured by tho permission afterwards given to tho prisoner to go upon the stand and mako a further statement, in which ho said: “I know nothing about the stealing, and had nothing to do with it;” as tho prisoner evidently needed tho aid which counsel proposed to give as much at this time as ho had needed it before, and the ruling of tho Court excluded all such aid.</p>

<p>Certiorari will lie to review order of the Court allowing execution, —Whcro a stay of execution "before a Justice has heen filed in the office of tho County • Clerk, and the Circuit Court, upon .application of tho judgment creditor, grants an order allowing an execution against tho surety, a writ of certiorari will lie to review such, order.</p> <p>Execution cannot issue after statute of limitation has run against the judgment. — Where lapse of time sincó issuing an execution renders it necessary to ap ply to tho court for leave, it cannot properly ho granted where such delay has intervened that no action will lie on tho judgment.</p> <p>One "became surety for stay of execution under the statute of 1846; executions were subsequently issued by the Justice, which, being returned unsatisfied, some years afterwards, a transcript of the judgment was filed in the office of the County Clerk, and an execution issued upon it which was likewiso returned unsatisfied. More than four years after the filing of said transcript, and when more than six years had intervened since the return of the last execution on the stay, the original stay was filed in the office of the County Clerk, and on the application of the judgment creditor, a new execution was ordered against the surety, as well as the judgment debtors; — Held, That such order, in so far as it allowed an execution against tho surety, was erroneous.</p>

<p>Public office —legal right of incumbent cannot be attacked collaterally — proof off user. — The actual legal right of one who is the incumbent of an office cannot be tried in a collateral action between third parties, and in such case the mere proof of user by any one who knows the fact will bosufficient to give full sanction to his acts.</p> <p>Certificate of a Justice to a transcript of judgment' — its effect. — Where a Justice, in pursuance of the statute, (2 Comp. Latos, §3893,) certifies a transcript of a judgment from the docket of a former Justice, which he certifies is in his control, full credit will be given to such certificate, and it will be presumed that the docket is legally in his possession.</p> <p>Evidence — docket entries of a Justice may not' be disproved. — In a suit upon a Justice judgment, the docket entry of the Justice, that the defendant appeared and pleaded in such action, cannot ho disproved.</p>

Appeal in Chancery from Muskegon Circuit. The facts, so far as they are necessary to an under■standing of the legal questions, are stated in the opinion.

<p>Bounties, who entitled to, under the act relating to Jackson County. — The act to ■ legalizo the action of Llie several townships, etc., in the County of Jackson in paying bounties to volunteers, and to refund money to pay bounties (L, of 1865, p. 477,) can not properly be extended to cover any advance of money-made by individuals on their own account, and not on the credit or by the-authority of the municipalities.</p> <p>Township meetings, notice of — A general statute requiring a longer notice for Township meetings ia superseded for the time by a statute fixing a shorter notice for specific meetings for a particular purpose.</p> <p>Injunction to stay tax, toko entitled to, — An individual has no right, as a taxpayer, either in his own name or on behalf of himself and the other taxpayers to; file a bill to enjoin proceedings in advance of the actual levy of . a tax. He cannot eeok redress until his own tax can be ascertained, and ho cannot then proceed in equity except to protect his individual interests from injuries not remedial otherwise.</p> <p>Injunction, the right of a private person to, in redress of a common public grievance.— Privato persons cannot assnmo to themselves tho right to institute proceedings in1 chancery to redress grievances on behalf of the public. They can only proceed where their individual grievances are distinct from those of the public at large, and such as give them a piivate right to redress.</p> <p>'The only cases where individuals can sue on behalf of themselves and others, are where the interests, though numerous, are all separate, individual, and not joint or public interests, identical in character and origin, but all private and independent rights, springing out of the same transactions or fund.</p>

<p>Foreclosure of mortgage by assignee thereof — proof of assignment. —Where in a hill for foreclosure of a mortgage the complainant averred the mortgage to have’ been duly assigned to him, and tho answer of the defendants was silent on tho point, and based the defence solely on tho ground of the infancy of the mortgagor, and thore was no evidence of tho assignment except that contained in the record of a prior cause, which was put in evidence by consent, wherein the former owner of tho mortgage had testified that the mortgage was assigned to tho complainant; the Court held that under «tho circumstances complainant was entitled to the most liberal construction of the,- evidence as to the assignment, and no objection to such evidence having been made for incompetency, it was sufficient to establish the fact of the assignment. .</p> <p>Mortgage by infant — Affirmance. — “Where land is conveyed and a mortgago taken back for the purchase money, the deed and mortgage together constitute but one transaction, and tho titlo only passes by the deed subject to the mortgage. And whore the grantee in such case is an infant, ho may disaffirm tho deed on coming of age, but by retaining tho land he affirms the mortgage.</p> <p>Practice — Production of notes and mortgage in foreclosure suits. — In a suit for tho foreclosure of a mortgage, no decroo should be rendered without the production in court of tho notes and mortgage, as evidence of oomplainant’s. right, or an excuse shown for not doing it.</p> <p>Foreclosure —notes and mortgage not produced — correction after appeal, — "Where on an appeal from, a deoree of foreclosure it appeared that tlio notes and mortgage were not produced and filed in the Court below, this Court, in affirming the decree, ordered that before entering such decree the complainant should produce and file these papers in this Court; or, if they were lost, should satisfactorily account for them by affidavits.</p>