Volume 14 — Michigan Reports

On the 29tli day of May, 1865, plaintiffs sued out of the circuit court for the county of Kent a writ of attachment against the goods and chattels of defendant Luce, and delivered the same to the sheriff, who, by virtue thereof, on the 7th day of June following levied upon certain property of the defendant. The defendant, on the 31st day of July, instituted proceedings before a circuit court commissioner for dissolution of the attachment.

Case made after judgment from Livingston Circuit. The action was trespass, for alleged injuries to certain premises in the village of Howell. The defendant plead the general issue, and gave notice of title in himself, and that the premises were a public square. The facts, so far as they are necessary to an understanding of the legal questions involved in the ease, appear in the opinion.

Ajjpeal by complainant from Kalamazoo Circuit in Chancery. The bill in this cause was brought to set aside an assignment made by David A. McNair to Luther H. Trask and John Dudgeon, two of said defendants, for the benefit of creditors. From the answer it appears that the chief point in dispute was the validity of the assignment.

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

The following facts were set forth in the petition: That the petitioner was a tax payer owning real and personal property in the township of Woodhull in the county of Shiawassee of the value of four thousand dollars; that in August, 1864, the quota of said township under a previous call of the President for volunteers was eleven men; that for the purpose of filling said quota the “ petitioner advanced said township the sum of one hundred and thirty-seven dollars and…

Petition for mandamus. The relator presented his petition, setting forth that he had brought an action of trespass on the case before a Justice of the Peace against Augustus D. Burdeno and Louis Burdeno; that, notice under the statute being given to the Justice, that the title to land would come in question on the trial of said cause, the Justice duly certified the case to the Circuit Court.

This is a ease made, after judgment, in the Saginaw Circuit for review by the Supreme Court. The action was assumpsit brought to recover damages under a contract, by reason of the defendants preventing its fulfillment.

Wreford was convicted in the Recorder’s Court in and for the City of Detroit, under a complaint for violating an ordinance of said city, prohibiting the slaughtering of “ any cattle, sheep, swine or calves in any building or enclosure on either side of Jefferson avenue, Woodward avenue and Fort street west, or within one block of each' of said avenues or streets.” The conviction, as appears by the record, was had upon a stipulation of facts, as follows, to wit: “recorder’s…

Information in the nature of a quo warranto. At the general election held in the fall of 1864, Hon. B. F. Hyde was elected Recorder for the full term of six years, from and after January next ensuing. In the month of July, 1865, the Common Council by a unanimous vote designated Hon. B. F. H. Witherell, Wayne Circuit Judge, to exercise all the powers and duties of said Recorder until said vacancy be filled.

<p>Appeal in Chancery from the Wayne Circuit.</p> <p>The complainants filed their bill, February 15th, 1864, to set aside a certain deed, made by the wife of the defendant, George W. Lewis, of her interest in the estate of her father, the late Joseph Campau, claiming that she was not competent to execute said deed, and that the same was procured by improper influences.</p> <p>The defendant Lewis put in an answer to the merits of the bill. One of the defendants, who was a minor, put in a general answer by her guardian ad litem, and the other defendants suffered the bill to be taken as confessed.</p>

United States Survey. Quarter Posts, effect of as monuments. Held: that the quarter posts were authorized to be set and established by virtue of the land laws, and survey statutes, taken in connection with the instructions of the department at Washington to the surveyors; and that when so set, they constitute established monuments, of boundary; and as such, will govern in preference to the…

Appeal in chancery from Eaton Circuit. The bill in this cause was filed by the complainant, Melissa G. Stiles, against her husband, Elizur Stiles, and Wilbert Stiles, his son by a former marriage, to set aside a certain deed of forty acres of land, executed by the complainant to the said Wilbert, on the ground that the same was obtained by fraud.

Case made from Wayne Circuit. This was an action of ejectment brought by Tregent & Stockwell against A. Whiting for certain premises in Detroit.

Appeal in Chancery from Livingston Circuit. This was a bill of foreclosure, founded on a mortgage, made by Consider Crapo to Hugh Railey, dated February 28th, 1838, and assigned by Railey to Wing, the complainant, May 27th, 1840.

This was a motion to set aside a writ of error, on the ground that plaintiff in said writ was not such a party to the cause as entitled him to sue out such writ. The facts are fully stated in the opinion.

This was an action of trespass quare elausum fregit, commenced before a Justice of the Peace. The defendant g'ave notice under the statute of title to real estate, and the cause was certified to the Circuit Court. On the trial, the defendants offered in evidence a deed of the premises from the plaintiff to Victoria Burdeno, his wife, to the admission of which the plaintiff objected on account of the relation between the parties.

Case made for review upon the law and the facts from Saginaw Circuit. This was an action of assumpsit brought to recover damages for the failure, by the defendant, to furnish certain lumber for shipment, as fast as the plaintiffs could remove it.

Appeal in Chancery from Kent Circuit. The bill was filed by the complainant in this cause, to foreclose a mortgage executed by one Wenzel Blumrich, (the husband of said Laura Blumrich, and the father of said infant defendant,) in his life-time, to said complainant, and said defendants resist such foreclosure upon the ground that said mortgage was fraudulently obtained and without consideration. The facts sufficiently appear in the opinion.

Appeal in Chancery from Wayne Circuit. The bills in these cases were filed by complainant to enforce certain liens for purchase money under defendants’ contracts, and which were treated in the nature of equitable mortgages. The cases being closely connected in their facts, were considered together. The facts are fully stated in the opinion.

Appeal in Chancery from Jackson Circuit. The bill was filed to set aside a deed executed by the complainant to the defendant, Sarah Young, conveying certain lands, situated in the county of Jackson, on the ground of fraud. The Court below made a decree in favor of the complainant. The facts are stated in the opinion.

The defendant in error sued the plaintiff in error, in the Court below, in assumpsit, to recover the sum of $4,000, which, he claimed to have loaned him.

This was an action on contract brought by plaintiff against defendants, to recover damages for non-delivery of certain personal property. The declaration contained a special count as to the breach, and also the common counts. Defendants plead the general issue with notice of set-off and recoupment. The parties consented to a reference of the cause to Thomas S. Blackmar.

Appeal in Chancery from Washtenaw Circuit. This was a bill to restrain defendant Miller from asserting title to certain lands occupied by complainant, — which he also claimed to own. The facts are fully stated in the opinion.

This was an action for dower, brought by defendant in error. It appeared in evidence that plaintiff, as administratrix of the estate of George B. DeGroff, — her late husband, — sold by order of the Judge of Probate certain real estate of which he died seized.

<p>Judgment. When execution may issue. Where judgment is rendered at or near the close of a term of court, so that there is no time during the same term to move for a new trial or in arrest of judgment, and no such motion is made, the prevailing party is not required to wait until the following term for his execution to issue, hut may have it immediately.</p>

This was an action of assumpsit on the common counts. Defendant plead -the general issue and. gave notice of set-off. The case turns upon the rejection by the Court of a certain set-off offered by the defendant, and which is sufficiently stated by the Court. Judgment was rendered for plaintiff.

This was an action of trespass on the case, based upon a special agreement.

There was hut one error assigned. The nature of the case and the ground of the allegation of error are sufficiently stated in the opinion of the Court.

Defendant in error brought trespass de ionis asportutis, in the court below, against plaintiff in error.

Hanmer sued tbe bank upon an agreement of indemnity signed by H. H. Brown, cashier of tbe bank, and sealed witb tbe corporate seal, and… Held: and instructed the jury in substance that the authority of Brown to bind the bank by the indemnity was, on the evidence, a question of fact for the jury; and that if the jury found that the directors and stockholders had for years permitted the entire control and management of the bank to Brown, and this business had been done by him…

This was an action of ejectment brought by the original plaintiff, Jonathan Eearsley, now deceased, against Jeremiah Ready. The names of the defendants in error were substituted as plaintiffs below, under the statute.

This was an action of replevin, brought by the plaintiff against the defendant, for one horse pony. The plaintiff declared against the defendant for the unlawful detention of the said horse pony; the defendant plead the general issue.

<p>Pi'omisso'nj note. Evidenóe. Want of consideration. An action was brought on certain promissory notes. The defendant, under a proper notice, offered to prove that a verbal contract had been made for the exchange of lands, and that defendant, upon assurances that it would be carried out, had sold the land he so purchased; that defendant executed and delivered his deed to the plaintiff who accepted it, and then executed his deed for. the land to be given in exchange, and sent it to his agent with instructions not to deliver the same until the defendant should pay or give his notes for $1000, on the alleged ground that the deed embraced more land than he had understood was to be conveyed, and that this was the value of such excess. The defendant thereupon being obliged to have the land to carry out his own bargain, executed the notes sued upon under protest, and took the deed. The Court below excluded the testimony. Held, to be error, and that such testimony was admissible, as tending to prove want of consideration. There was nothing in such testimony tending to prove a compromise.</p> <p>Equitable tille. Consideration. An equitable title is just as much property as a legal title, and although not in all respects onforcible in a Court of Law, is recognized in all courts as a valid consideration for an agreement.</p> <p>Statute of Frauds. There is nothing in the Statute of Frauds which precludes recovery for the price of land actually conveyed, whether the agreement for the price is written or verbal.</p> <p>Estoppel — Agent. The acts of an agent whose authority is not valid under the Statute of Frauds cannot estop his principal unless actually adopted by him.</p>

Information in the nature of a quo warranto. In this cause certain issues of fact, arising upon the several pleas of the defendant, were referred for trial to the Circuit Court for the County of Macomb. A trial by jury was had in said Circuit Court, and the verdict returned to this Court. The defendant now moved for a new trial of said issues, and for leave to amend the pleadings, upon the grounds stated in the opinion of the Court.

<p>Irregular writ of erro?\ when bar to a party not joining in it. The defendants in error moved to dismiss the writ df error on the ground that the plaintiff in error ought to have joined in a former writ. Heldt that the former writ, being brought by a party who had no right to maintain it, and having been dismissed for that reason, the plaintiff was not bound to join in it, and the same does not bar him.</p> <p>Who is a party? The plaintiff in error appealed from the decree of the Probate Court, establishing the will by which the testator devised his property to his infant son, being the grand-son of the plaintiff; and the proponents of the will having in the Circuit Court joined issue with, and taken a personal judgment against him, affirming the will, with costs; hekl^ that the plaintiff in error was clearly a party to such judgment, and might bring error; and that the writ was therefore regular.</p> <p>Who may contest a will. No one can contest a will which only disposes of property, except the heir at law or next of kin of the testator; but where the will appoints guardians to a minor, any one may oppose it who would be entitled to be heard in opposition to an ordinary application for guardianship.</p> <p>Next of kin interested in guardianship. Probate and Ghanceny Practice. In the absence of statutory regulations concerning the persons entitled to be heard on such applications, resort must be had to the practice in chancery from which our Probate jurisdiction in this class of cases is derived; and as the next of kin were entitled by that practice to be heard, they should be allowed to appear in the Probate Court.</p> <p>But no one has a right to demand an appointment of himself as guardian, except the persons designated by statute, which mentions none but the parents.</p> <p>Who may appeal from Probate. Any one entitled to be heard on such an application, must be regarded as entitled to appeal from an adverse decision.</p>

<p>Contract, discharge of. Defendants being indebted to tbe plaintiff's for goods sold and delivered, had given their acceptances for the same, and failed to pay. The parties thereupon made an agreement by which certain copper was to be transferred by the defendants to the plaintiffs, and the proceeds on sale to the amount of 05743.08 retained by the plaintiffs, and the surplus paid to the defendants and the acceptances delivered up. This arrangement was to be in full satisfaction of the debt, except that in case of future ability the defendants were to pay the further sum of 03,500, which was less than the balance of the original indebtedness. Held) that this was a new contract, by which the original indebtedness was wholly discharged.</p> <p>A recovery cannot be had for a breach of such new contract in an action on the original cause of action.</p> <p>Subsequent ability, evidence of, when relevant. Evidence of subsequent ability could only be relevant under a declaration upon the new contract, and a failure to perform the new contract could not revive the old one.</p> <p>Irrelevant testimony, when cause,foi' reversal of judgment. The admission of irrelevant testimony is a cause for reversing the judgment on a bill of exceptions, whenever its tendency would be to embarrass or mislead the jury.</p> <p>Objection to testimony. Waiver. The objection to irrelevant testimony may be made at any stage of the cause. There can be no waiver which can make it proper to allow a case to be decided on issues not authorized by the pleadings, and the objection is never too late.</p> <p>A motion to exclude from the jury such testimony, contained in a deposition, being overruled, is ground of exception.</p> <p>New trial. A decision overruling a motion for a new trial, cannot be reviewed by this Court. — Cuddy v. Major, 12 Mich. 368.</p>

<p>Delivery of property, when, a consideration, for waiver of damages. The delivery of property, manufactured in pursuance of a contract of manufacture and sale, is a sufficient consideration for an agreement on the part of the person so accepting its delivery, to waive any claim for damages on account of the contract not having been fulfilled within the stipulated time.</p> <p>Delivery and acceptance, when satisfaction of a contract. A delivery and acceptance under an express agreement to waive all claim for damages on account of a breach of the contract as to time, if the manufacturer would deliver the article manufactured under a previous contract, may be considered as in full satisfaction of the contract.</p> <p>The law will not look too closely into such arrangements as the parties themselves choose to consider satisfactory, in the absence of fraud or mistake; but will rather encourage parties to settle their own contracts.</p> <p>Agreement to waive damages, when not a consideration. An agreement to waive a claim for damage, after it has fully accrued, nothing remaining to be done, would be without consideration; but it is not thus where something is still to be done, and is only performed in consideration of such waiver.</p>

This was a common law certiorari to the Recorder’s Court of Detroit, to remove the proceedings connected with the opening and extending of Russell street, in the City of Detroit, to this Court. The folloAving facts were agreed upon, as being the only ones necessary to present the questions to be raised: The plaintiff is one of the heirs of Joseph Campau, deceased; the owners in fee of the property.

<p>Bote made on Sunday. Bona fide holder. A note actually made on Sunday, "but dated on Monday, for tbe purpose of giving it credit, is not necessarily void. The statute has not declared that notes made contrary to the Sunday law, shall be void under all circumstances. Their invalidity is only to be implied from the prohibition of Sunday business, and under such a statute a dona fide holder is protected.</p> <p>And where steps are taken to induce a, belief that a note was not made on Sunday, the party so doing would not be allowed to assert* his own fraud, in his defense. •</p> <p>JForgery. Testimony of experts. The defendant alleged that the note was in fact for, eight dollars, and had been altered to eighty. A witness who had been a conveyancer for twenty-five years testified that the note was genuine. He was then asked, whether, in his opinion the word eight had been altered to eighty since its execution. Held, that this was competent and proper to go to the jury, to aid them in forming their opinion.</p> <p>Comparison of handwritings. Witnesses may be allowed to compare the writing in question with the appeal bond on file in the same case, admitted to be signed by the defendant, or with any other writing legitimately introduced into the case under the issue, in order to judge of the genuineness of the writing to be proved, v This kind of evidence must often bo quite as satisfactory as the very small amount of knowledge of the party’s handwriting, necessary to render a witness competent to testify to his opinion of the genuineness of a signature, in the usual ■jnaimer of giving such opinions.</p> <p>Comparison limited. The rule has been inflexibly settled, that disputed papers, which do not belong in the cause, and are not involved in the issue, cannot have their genuineness made a question of inquiry, and cannot therefore be made a basis of comparison, for either witness or jury. Such comparison as is allowed may • be made by the jury for themselves. But they can better do it, generally, with the aid of experts, than without,</p> <p>The defendant offered to prove that a note to one Gould was signed and given to him by the defendant, and that both this and the one sued upon were executed at his house at about the same time. Held, that this was not admissible, as it raised an issue as to the genuineness of the note to Gould, which was entirely foreign to the issue in the case, and was within the excluding rules above stated.</p> <p>Who is an expert? A witness was offered to prove that Gould’s note was not written with the same ink with the note in suit. He was shown to have been a writing-master and book-keeper of considerable experience, but was rejected because it had not been shown that he was an expert in regard to color. Held, that any experience in using pen and ink would qualify a person of ordinary capacity to form an admissible opinion concerning such identity, although it might be of very small weight in doubtful circumstances. It stands on the same footing with other inquiries concerning handwriting. But as that note was inadmissible, the exclusion of the testimony worked no injury.</p> <p>The holder having purchased the note of a party employed by the original parties to negotiate it, at less than its face, is not the less a dona fide holder, on that account, and is entitled to recover the full amount.</p>

This was a case made after judgment to obtain a review of the questions of fact. The case was tried in the Saginaw Circuit Court, and came up for review on the entire evidence. No questions of law were involved.

An information was filed in the Court below, jointly-charging Daniel G. Grimm, (the plaintiff in error), John Clark, Jack Brady, George McManus, and James Johnson, with the offense of burglary; that said Daniel G. Grimm elected to be tried separately, and a separate trial was awarded him; that on the 19th day of January last, this case for the trial of the said Grimm came on to be tried, by a jury; that evidence was introduced on the part of the people, tending to show the…

<p>Error to Oakland Circuit.</p>

This was an appeal from the decree of the Probate Court of Wayne County, admitting to probate the last will and testament of Cyrus W. Jackson, deceased. In accordance with an order of the Circuit Court, the proponents filed a declaration, in which they averred the execution of the will, and that the testator was of sound mind. To this declaration the contestant pleaded the statutory general issue, and also special pleas, denying the soundness of mind of the testator.

The motion for a new trial of the issues of fact in this cause, and for leave to amend the pleadings therein, which was heretofore argued, (seep. 243 ante), was now re-argued upon the affidavits filed for and against the motion, and upon the report of the Cii'Cuit Judge of the Sixth Circuit of the proceedings in the Circuit Court, for the county of Macomb, upon the trial of said issues of fact.

<p>Motion by respondent to strike from the docket, as not properly noticed for hearing.</p>

<p>Reserved cases. Jurisdiction. Tlié Constitution having conferred upon the Supreme Court appellate jurisdiction only, except in certain specified cases of original jurisdiction, the Legislature has no power to authorize the Supreme Court to take cognizance of Reserved Cases.</p>

, The petition of the relator showed that the electors of the township of Blackman in April 1865, at the annual township meeting, voted, by a majority, to refund bounties under the special act for Jackson County. — Sess. L. 1865, 411. And further, that no money had been raised .in the township, previously, which it was generally understood that the town would pay, except the one hundred dollars per man which the law then authorized, and for which bonds were issued.

This was an action of trespass on the case, commenced by writ of attachment. The cause was tried on the 21st day of February, 1865, of the December term, 1864, by the Court, without a jury, and submitted. Before judgment the Court adjourned sine die.

Case made from Macomb Circuit. Plaintiffs sued defendant before a Justice of the Peace to recover the amount due upon a promissory note. The declaration was in assumpsit on the common counts, and to which was attached a copy of the note, being for $192. The defendant confessed judgment thereon, and the same was entered up, and rendered by said justice, through mistake, for $92.09, and interest, instead of $192.09, the true amount.

The original bill was filed for the specific performance of an agreement made May 20th, 1859, between the complainant and the defendant Michael B. Kean, under which it is alleged said Kean built a steamboat called the “Philo Parsons”; for an account of the earnings of said steamboat from the time she came out, in May, 1861; and for a conveyance of one half of said boat to complainant, in fulfillment of said agreement.

The bill in this cause was filed by complainant to redeem certain premises in the village of Niles, Berrien County, from the effect of a certain mortgage, and to charge defendants with certain rents and profits as mortgagees in possession. Decree was rendered for complainant in the Court below, allowing them to redeem, and compelling defendants to ajqriy inpayment of said mortgage the rents received during their occupancy. The facts are fully stated in the opinion.

<p>Definition, ’''•Currency''' Where a certificate of deposit, "by its terms, was made payable “in currency,” it was held, prima facie, tornean money current by law, or paper equivalent in value circulating in the business community at par.</p> <p>Witness, when an expert. Where a witness — a banker in Detroit — was asked what kind of money a certificate of deposit (issued in Chicago) was payable in, without referring to any local custom or usage, or introducing evidence as to his knowledge of the laws of Illinois relating to the question; held, that the question was one purely of law.</p> <p>Justice's Court, effect of money paid in. Where in a suit upon a note before a Justice, defendant paid money thereon in open court; held, that the effect upon the rights of the parties was the same as when paid into a court of record under the practice there prevailing. Held further, that no rule or order is necessary when it is paid at the time of, or prior to the plea. If after plea, a motion should probably be made for leave.</p>

Bridget Bennet brought an action of replevin in the Ottawa Circuit against Levi Shackelton and Alfred Cain, for a dun horse and other property. In October, 1837, the action was tried, resulted in favor of defendants, and judgment for the return of the property was given.

The nature of the case, and all the facts necessary to an understanding of the questions of law involved, fully appear in the opinion of the Court.

<p>Estoppel by contract. Where a party received money of a person who was in the lawful possession thereof, and interested therein, and expressly agreed to deposit it to his credit, he is estopped by his contract, in a suit for its recovery brought by said person, from setting up the rights of any third person, or raising any question of partnership.</p> <p>Charge of Court, when not cause for reversing judgment. When the charge of the Court had no relevancy to the case, or could in no way prejudice the rights of a defendant, judgment will not be reversed, whether the charge was erroneous or not.</p>

This was a bill to quiet title. The facts are as follows : Certain persons in the township of Springwells, Wayne County, during the year 1864, paid money for various purposes to fill the quota of soldiers to be raised in that town. The money was paid for substitutes, recruits, &c., as each person saw fit, to avoid a draft, and without any pledge or promise of any kind for repayment.

<p>Constitutional law. Meaning of the phrase “white male citizen..'''' All persons in whom white blood so far preponderates that they have less than one-fourth of African blood, are within the meaning of that clause of the Constitution of Michigan which limits the elective franchise to “white male citizens”; and no other persons of African descent can be so regarded.</p>

<p>Constitutional Law. Criminal recognizance. Whether the statute of 1861, p. 136, permitting the entering up of judgment summarily, and without suit or notice, upon a criminal recognizance, two days after forfeiture is entered of record, unless cause to the contrary he shown, is constitutional, guere? the Court being equally divided.</p>

The complainant filed his bill in the Court bélow, praying for the appointment of a Receiver, and for other substantial relief. After answer, and before the cause was at issue by replication, a motion was made by the complainant for the appointment of a Receiver, according to the prayer of the bill; and the Court made an order accordingly. From this order an appeal was taken to this Court.

<p>Alimony and expenses. When sufficiency of bill will not be considered on motion. la an application for alimony and expenses, made by a wife who is complainant and appellant, this Court will not decide upon the sufficiency of the bill, when the parties have taken testimony in the cause and gone to hearing upon proofs, instead of demurring.</p> <p>Practice where expenses are allotted. In this case the appeal having been taken by complainant, and the court leaving granted an order that defendant advance the expense of printing, but it being claimed that much irrelevant matter had been introduced, it was also ordered that complainant execute security to refund the same, or such part as might be thereafter decreed to be refunded.</p>

<p>Ti'espass upon lands; pleading and evidence. Where an action is brought for trespass upon lands in a certain township, if the plaintiff declares generally without giving a particular description of the lands, and the defendant pleads title in himself, he will make out a defense by proof of ownership in himself of any parcel of land in the township mentioned in the declaration.</p> <p>Under the common law pleadings, if the defendant pleaded liberum tenemenium, the plaintiff could, by a new assignment, describe his land by metes and bounds, and this amounted in effect to a new declaration. Under our practice which admits of no pleading subsequent to the defendant’s plea and notice, the plaintiff can give no evidence which, at common law, required a new assignment to support it.</p> <p>Ownership of land, what prima fade evidence of. Proof of possession of land, together with a claim of title under a deed purporting to convey it, is prima fade evidence of title as against one who shows no right in himself.</p>

<p>Libel. Privileged communications. Pleadings and practice. Where in an action for libel tbe alleged communication was privileged, it was held that it was part of plaintiff’s case to prove tbe falsity of tbe communication, as well as tbe malicious intent; and that as tbe proof of tbe truth of tbe allegations was only tbe contradiction of such case as plaintiff was bound to establish, defendant was entitled to give proof of their truth under the general issue, without special notice.</p> <p>Where the libel charged is not privileged, the plaintiff is not bound to prove its falsity; and the justification of it by defendant as true, not being a denial of any thing incumbent upon plaintiff to prove, must be pleaded or noticed specially.</p> <p>Agent Objection to evidence. A witness having testified, without objection, to certain acts as agent of a company, proceeded to state his authority as such, to' which a general objection was made. Held, that if his action was accepted and followed by the company, it could make no difference whether he had any original authority or not.</p> <p>Libel, embezzlement The letter sued upon in this cause contained the following language: “It is wondered at how he can live in more than ordinary style, as he does, while having merely the honorable receipts of his agency to live upon.” It had also charged him with vexatious acts, and”charging unusual rates.</p> <p>The Court charged the jury that if they inferred from the language of the letter, that it intended a charge of embezzlement, they would be warranted in so finding. Held, that the language did not necessarily imply a charge of embezzlement or larceny, but that, if the jury could infer such a charge from the letter, it was properly submitted to them.</p>

<p>Assignment of executory contract, effect of. . Agent, duty in letting contract. Fidelity required. Certain bonds, executed by the F. & P. M. Railroad Company, were delivered to certain trustees, to be used in the construction and equipment of the Company’s road. A portion of them were delivered by the trustees to the defendant, then President of the Company, with the expectation that he would deliver them to certain contractors with whom he made a contract on behalf of the Company for the construction of the road. The defendant still retained them after the election of his successor, and suit was brought to compel him to deliver them up. Defendant claimed that he had, directly after the contract was made, become the assignee of a part of the contract, and was now entitled to retain these bonds on account of such interest in them, and on the ground that his copartners were indebted to him.</p> <p>It appeared from the evidence that the defendant, the Secretary, and another Director had been appointed a committee by the Company to let a contract for building and equipping the road. This committee entered into a preliminary contract with a certain party, and on the same day that party assigned to the defendant and the Secretary three-eighths of said agreement and four-tenths of a contract to be thereafter entered into; also providing that they should be at three-eighths the expense of negotiating the bonds of the Company, which were to be received by the contractor.</p> <p>Afterwards the contract was executed, and three-eighths assigned to said defendant and the Secretary. The Board of Directors afterwards approved of the contract, hut there was no evidence that they had any knowledge of the interest of the defendant or the Secretary in the same. In a suit by complainant against defendant, to compel the delivering up of said bonds, it was held:</p> <p>1. Had the contract been valid and binding on the Company, and had the assignment been valid as to the contractor, still the assignment of this executory contract, yet wholly unperformed, and made without the knowledge of the Company, could not create a contract relation between the defendant and the Company, or give him any right to retain the bonds, or interfere in respect to them between the Company and the contractor.</p> <p>% If anything was due from the Company to the contractor, the Company would not, by reason of this assignment, become the debtors of the defendant; and for whatever claim he might have under the assignment, he must look to the assignor.</p> <p>3. But under the facts as disclosed by the record, the transaction under which the defendant claims is clearly fraudulent and void, as against the complainant. It was his duty, (with the others appointed as a committee,) in letting the contract to use his best efforts and judgment to secure the best terms he could for the Company; butinjoiningwiththe contractor in taking this very contract, which they were employed to let, it became their interest to let the contract for the highest price.</p> <p>4. In the assignment of the preliminary contract, the letting of the contract by the Company to the assignor was stated as the sole consideration of the assignment. This is a void and illegal consideration.</p> <p>5. The principle of law, applicable to such a contract, renders it immaterial under the circumstances of this case, whether there has been any fraud in fact, or any injury to the Company. “Fidelity in the agent is what is aimed at, and as a means of securing it, the law will not permit the agent to place himself in a situation in which he may be tempted by his own private interest to disregard that of his principal.” — 11 Mich. 222.</p>

This was an action of assumpsit, brought in the Court below against the defendants as common carriers, upon a special contract for the transportation of a lot of beef cattle from Toledo to Buffalo, on their way to the market at Albany or New York. The evidence showed that the defendants were several Railroad Companies, owning severally different portions of the continuous line of transportation from Toledo to Buffalo.

This was an action of assumpsit, brought by plaintiffs to recover of defendant, who was a stockholder by purchase, the balance of certain assessments claimed by said plaintiffs after the sale, on default, of defendant’s stock. The cause was tried without a jury, on the following stipulation : “In Circuit Court for the County of Wayne, State of Michigan. The Merrimac Mining Company of Lake Superior’, Plaintiffs, v. George F. Bagley, Defendant.

This was an action of replevin. The facts were as follows:— September 30th, 1865, the firm of Holly Bros, executed a chattel mortgage to plaintiff (Martz) for $2,400. Holly Bros, having subsequently sold out to S. B. Holly, one of the Bros., he — March 7th, 1866 — mortgaged again to Martz for $1,000 ; possession under both mortgages remaining in mortgagors.

The bill was filed in 1852 for the foreclosure of a mortgage, and the defendant proceeded against by advertisement, as a non-resident. The bill was taken as confessed, decree rendered, and the land sold to complainant in 1854. In 1857, more than three years after the sale, defendant Welling apjfiied to the court to have the decree opened, that he might make defense by answer.

<p>Highway Commissioners. Notices how served: Return of service. The statute, L. 1861, p. 256, requires that when application is made to the commissioners of highways for the vacation of a highway, a written notice must he given, stating the object of the application, describing the premises and designating the time and place of meeting of the Board. This notice is required to he served on the owners or occupants of lands through which the road passes, either personally, or by copy left at the residence of such owner or occupant, and by posting in three public places in the township.</p> <p>The return of service in this case recited that it was served u upon each of the persons living upon and interested in said road therein described,1 and also that the commissioners posted three notices as required by law."</p> <p>Held, that this proof was insufficient; that to comply with the statute, it should appear upon what particular persons the notice was served, and whether served personally, or by copy left at the residence.</p> <p>Held, also, that the return should show the particular places where the notices were posted, since it is the duty of the Board not to proceed without being satisfied on this point.</p> <p>Such notice being a necessary pre-requisite to the exercise of jurisdiction, the order of the commissioners was quashed.</p>

<p>Case made for review from St. Clair Circuit.</p> <p>Ejectment.</p> <p>Tbe facts are stated in the opinion.</p>

<p>Mental weaJcness> &c., when general allegations sufficient. General allegations of weakness of intellect in the grantor of a deed, sought to be set aside as obtained by fraud and undue influence, and also of his having indulged in the use of intoxicating liquors, to the extent of producing mental incapacity, and of the undue influence charged to have been employed, are sufficient, especially when the defendant has taken issue on the facts and gone to a hearing upon the evidence.</p> <p>In cases of this kind it is very difficult to set forth specially, or to describe all the particular facts, and the various means used for obtaining the deed, even when all the facts and means are known.</p> <p>A person whose senses are blunted, who is absent-minded, inattentive, and in general “childish,” and also under the influence of liquor; but whom the court could not pronounce incapable of doing an act, as to the effect of which he was fully and fairly informed, was held to have been the subject of fraud and undue' influence in the execution of a deed, prepared by and executed to his son, in whom he implicitly confided; the contents and effect of such deed not having been fully and fairly explained to him.</p> <p>Duty of persons in confidential relations. Those standing in a confidential relation to a person of feeble intellect are under a clear legal and moral duty, if not to call to his attention all the considerations and details which bear upon the propriety of the transaction, at least to avoid any effort to prevent such considerations from occurring to, or having their due weight upon his mind.</p> <p>Deed to person in confidential relation: Court must be satisfied of its fairness. Where one occupying a confidential relation to a person of weak intellect, and in whom he places confidence, takes a benefit under a deed prepared by himself, it is the duty of courts to refuse judicial sanction to such an instrument, until fully satisfied of the fairness of the transaction, and that the instrument is the intelligent act of the person executing it.</p>