Volume 15 — Michigan Reports

The information in this case charged plaintiffs in error with haying assaulted, with intent to kill and murder, one Charles Parsons. The information was sworn to before the Clerk who signed his name as follows: “ J. D. Bate-man, Clerk.” A plea of not guilty was entered. The jury brought in a yerdict of guilty, and sentence was passed.

This was a bill for specific performance. The cause was heard on the pleadings and proofs, and the bill was dismissed. The facts of the case, and the allegations in the pleadings, so far as may be necessary to an understanding of the questions decided, are stated in the arguments of the counsel, and the opinion of the Court. The bill alleges that under the contract the complainant took possession, cut and sold timber, and contracted for the sale of more wood and timber.

This was an action of trespass quare clausum, for entering upon the premises of plaintiff and removing certain crops and committing certain other injuries. Defendant plead the general issue, and gave notice of special matter. The cauáe was tried by a jury, and a verdict rendered for defendant. The plaintiff removed the same by writ of error. The facts are stated in the opinion. 1.

Appeal in Chancery from Wayne Circuit. The bill in this cause was filed to set aside a conveyance on the ground of fraud and inadequacy of price. It was dismissed in the court below. The facts are stated in the opinion.

This was an action to recover a penalty for encroaching upon the public highway in the City of Grand Rapids.

The bill in this cause was filed by complainant, through her next friend, against her guardian, Lucius Marvin and other defendants, charging fraud in the sale of certain real estate, and praying that the same might be set aside. The bill also prayed that a certain deed of the premises obtained from her father by the purchaser at a certain guardian sale through fraudulent representations might be set aside, and the title thereto declared to be vested in her.

The bill in this case was filed to' restrain the defendant, as City Collector, from collecting a certain assessment made against the complainants, for the expenses of making certain excavations in Croghan street, in the city of Detroit, preparatory to paving the same, and prayed for an injunction. The complainants were authorized by a city ordinance accepted by them, to construct a railway on Croghan street.

<p>Ti'over: conversion: damages. Whore one co-tenant was "bound to the other by contract, to deliver and divide joint property at a certain place, but appropriated it to his exclusive use, and under circumstances which rendered a division and delivery in the manner agreed upon impracticable: Held, that it amounted to a conversion, and that trover would lie. Held furth&)\ that in the absence of special circumstances requiring a different measure of damages, it was proper to award to the plaintiff the value of the property at the time of conversion, with interest from that 'time. *</p> <p>Amendment of pleadings in the Circuit Court, when discretionamj. On the trial in the Circuit Court, the defendant applied for leave to interpose the defense of the Statute of Limitations, after having plead the general issue. Held, that this was a matter of discretion in the court below, and its denial could not be reviewed by this court.</p>

Case made from Saginaw Circuit. Plaintiff sued defendants for damages arising out of their failure to deliver lumber under a contract. The defense set up was that plaintiff made default himself, and that subsequently a new contract was entered into materially variant from tbe first, -which'had been superseded by the new arrangement. The court below adopted this view and gave judgment for the defendants.

Appeal in Chancery, from St. Clair Circuit. Tbe bill in tbis cause was filed to test the legality of certain proceedings for tbe removal of tbe county seat from St. Clair to Port Huron, and praying for an injunction.

Appeal in Chancery from Lenawee Circuit. This was a bill filed by complainants as heirs at law of Jacob Jackson, deceased, to obtain a re - conveyance of certain premises conveyed by said Jackson, in his life time, to Joseph H. Cleveland, and by him conveyed to other defendants. The bill was dismissed, on the hearing. The facts are stated in the opinion. 1.

This was a hill for specific performance and injunction. Defendants demurred to the bill for want of equity, and on the hearing it was dismissed. The facts are stated in the opinion.

The bill in this cause was filed by an execution creditor, who had purchased lands at sheriff’s %ale, to avoid a deed alleged to have been executed to defraud creditors. A decree was rendered in favor of complainant. The facts are stated in the opinion. The want of the ad damnum clause, in the declaration, did not affect the validity of the judgment, as, if it was a defect, it is cured by judgment under the statute of Jeofails.

This was an action brought by plaintiff to recover of the proprietors of the steamboat “ City of Cleveland ” the value of certain personal property, alleged to have been stolen from her stateroom during a trip from Cleveland to Detroit. It appeared from the evidence that plaintiff took a cabin passage on defendants’ boat from Cleveland to Detroit, and paid her fare.

The bill was filed to restrain the collection of certain taxes, alleged to be illegally assessed against complainants jointly, upon certain lands and personal property in the township and county of Huron, for the year 1862. Upon the filing of the bill the circuit judge granted a temporary injunction, and upon final hearing of the cause, upon pleadings and proofs, made the same perpetual by decree. The facts are stated in the opinion. 1.

Petition for mandamus. This was a petition for an order that respondents show cause why a writ of mandamus should not issue to compel them to register the name of the relator as a legal elector of said township, upon his showing to them, in the manner required by law, his right to such registration.

Quo Warranto. Motion to confirm default. The summons in this case was made returnable on the 23d day of October, 1866, and was served personally on all the defendants and was duly returned before the return day. The clerk did not enter the appearance of the defendants as prescribed by the statute, nor did the Attorney General enter a rule to plead.

Information in the nature of a quo warranto. Held: used and exercised, and. still do hold, use and exercise, without any legal election, appointment, warrant, or authority whatsoever, the office of wardens and vestrymen, to wit, the said Peter E. DeMill and Benjamin Vernor the office of wardens, and the said James V. Campbell, Thomas Radcliff, Allen S. Sweet, Willard Parker, Lorenzo…

<p>Quo warranto; Practice in signing stipulations. The Attorney General having control of the proceedings in quo wan'anto, he alone is authorized to sign stipulations of fact on the part of the people.</p>

Appeal in Chancery from Wayne Circuit. The bill in this cause was filed by complainant for a divorce a mensa et thoro, and for alimony. The cause was heard in the court below on the pleadings and proofs, and the bill was dismissed. The complainant appealed.

The defendant was tried and convicted upon an information for bigamy. The facts and the exceptions to the ruling of the court are stated in the opinion. I. There is but one question for consideration in this case, to wit: Was the said charge of the court a true reflection of the object of Sec. 3223, Comp. Laws, (considered in connection with Secs. 3224 and 3255, Comp. Laws,) as applied to this case?

Case made for review from Wayne Circuit. This was an action of assumpsit, brought by the plaintiff as owner of the schooner Swallow, to recover a balance of freight due upon a cargo of corn carried in plaintiff’s vessel from Chicago to Sarnia, and delivered to defendants as intermediate consignees. The object of the suit was to test the right of an intermediate consignee to deduct shortage, when it does not arise from the fault of the prior carrier.

This case came from the Probate Court into the Circuit Court, by way of an appeal from the decision of commissioners ajipointed to audit claims against the estate of Joseph Campau. The Circuit Court allowed the claim of defendants in error, and the case was removed to this court by writ of error and bill of exceptions. The person and estate of the late Joseph Campau were under a special guardianship on account of his mental incapacity.

Case made from Gratiot Circuit. The case was commenced in a Justice’s court.

Appeal in Chancery from Wayne Circuit. The bill in this case was filed to foreclose a mortgage made by William Sears and wife to James S. and William Libby, and by them assigned to the complainant to secure a debt. The cause was heard on pleadings and proofs, and a decree was entered for the sale of the mortgaged premises in default of the payment of $15,168.25 and costs of suit. The defendant, William S., appealed from said decree. The facts are stated in the opinion.

Case made from Clinton Circuit. This was an action on a promissory note. The defense was the statute of limitations. Judgment was rendered for plaintiff. The facts are stated in the opinion.

Appeal in Chancery from Cass Circuit. This was a bill to foreclose a mortgage. The case was heard on the pleadings and proofs, and a decree was made in favor of complainant. The defendants appealed. The objections to the decree are stated in the opinion. The decree is erroneous. 1. Because complainant furnished no affidavit of regularity of proceedings. That there is none returned is certain.

Appeal in Chancery from Yan Burén Circuit. This bill was filed by twenty-nine complainants to restrain the collection of the taxes for the year 1865, levied against them on the assessment roll of the town of Waverly, Yan Burén county. Neither the description nor value of complainant’s real property is set forth in the bill. The illegal taxes alleged were certain taxes assessed to refund bounties, and which were included in the taxes. The bill prayed for an injunction.

This was an action to recover damages for an alleged deceit practiced by plaintiff in error upon defendant in error, in the sale of two patent rights for the making of soap. Judgment was rendered for the plaintiff below. The facts are sufficiently stated in the opinion. The following are the assignments of error, covered by the opinion: 1.

This was an information for an attempt to commit larceny from the person. The plaintiff in error was convicted for an attempt to commit the crime of larceny, and sentenced to be confined at hard labor in the State Prison for three years. It was assigned for error that the prisoner could not be sentenced for a period exceeding two and one-half years. The case turns upon a construction of tbe statute. 1.

This writ was brought to review the proceedings of the Circuit Court for Kent Circuit, in granting an order for the issuing of an execution against an administrator. The facts are stated in the opinion. The following are the errors assigned: 1. For that the said judgment was certified to the Probate Court, under section 2931 of the compiled laws. 2.

•Error to Wayne Circuit. This was an action pf assumpsit, brought by the • plaintiff as first indorsee of two promissory notes ’ against ' the defendant as indorser of the same. The declaration, consisted of the common money counts at length, with a notice subjoined that two promissory notes, of which copies were also subjoined, would be given in evidence for the plaintiff, on the trial, under the money counts.

This was an action of assumpsit brought for the value of a horse. ■ The declaration contained a special count setting forth that in consideration that the plaintiff would Sell* the horse to Daily — one of the defendants below— -that they (the defendants) would deliver their note to plaintiff for the sum of §60, payable in six months; that said horse was delivered to said Daily, but that defendants refused to give their said note or pay for the horse.

This was an action of trespass on the case brought by plaintiff in error for damages, alleged to have been sustained from injuries received by defects in one of the sidewalks of the city of Detroit. The only question involved is whether the circuit judge charged the jury properly, with reference to the rule concerning the negligence which would charge the city for the accident. The facts and charges of the court are stated in the opinion.

<p>Motion to strike from the docket.</p>

<p>Quo Warranto: Pleadings, on suggestion of damages. The statute having established the form of pleadings on a suggestion of damages in quo warranto, the Supreme* Court will not prescribe any other.</p>

Appeal in Chancery from Wayne Circuit. This case was heard on bill and answer. The bill was filed to foreclose a mortgage on certain real estate in Detroit, given to secure the payment of $5,500.

Appeal in Chancery from Lenawee Circuit. This was a hill filed to quiet title to certain lands purchased by complainant at a tax sale. The defendants were in possession under an adverse claim. A demurrer was filed, and the bill was dismissed.

Information in tbe nature of a quo warranto. The information in this cause was filed to test the right of E. V. Cicott to the office of Sheriff for Wayne county; and this motion was made asking this court to send the issues to be tried to another county than Wayne.

Atwood, a Circuit Court Commissioner for Wayne county. This was an application to review proceedings before a Circuit Court Commissioner upon habeas corpus. Moore sued Kehl in an action of trespass before a justice of the peace, and obtained judgment. An execution issued against the body of Kehl, but was returned “ not found.” Afterwards, a second execution was issued upon the same judgment, and upon which the defendant Kehl was arreste and imprisoned in the county jail.

This was an action of trespass on the case brought by plaintiff to recover damages against the Grand Trunk R. W. Co. for being ejected from the cars by one of their conductors. The jury, by direction of the court, rendered a verdict for the defendants, and the case was removed by writ of error. The facts are stated in the opinion. 1.

This was an action of assumpsjt brought to obtain compensation for the use of certain range lights placed on the St. Clair flats by defendant in error to aid vessels in navigating the channel. The declaration was on the common counts. Defendant plead the general issue.The facts, together with the exceptions taken to the rulings of the court below, are stated in the opinion.

<p>Affidavit: when the wards “before me" necessary in jurat. Where an affidavit is used before the officer who administers it, the omission in the jurat of the words “before me” will not vitiate it.</p> <p>Circuit Cowrt Commissioner: Fraudulent debtor's act: PHma facie case. An application to a commissioner under the fraudulent debtor’s act must make out facts amounting to a prima facie case of fraud.</p>

The Commissioners of said township made an order discontinuing a portion of the Monroe and Pontiac Territorial Road, running through the village of Wayne. And this writ was brought to review their proceedings. 1. Admitting that all the proceedings are valid in form, we insist that Highway Commissioners have no power to discontinue a territorial road.

Information in the nature of a quo warranto. The defendant demurred for the reason, first: that the information did not state the time when the alleged usurpation commenced, or for what period it continued, and, second: that certain blank spaces in the information rendered it uncertain and obscure. 1.

This was an action of assumpsit. After issue joined, the cause was referred by stipulation to a referee; and who found for the plaintiff. A bill of exceptions was signed, and exceptions were taken to the referee’s report. Both were overruled by the Circuit Court and the report was confirmed. The cause was removed to this court by writ of error. 1.

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

Appeal in Chancery from Wayne Circuit. The bill in this cause was filed to impeach and set aside a decree rendered by the Circuit Court for the county of Wayne, April 24th, 1854, in a cause wherein James A. Van Dyke — since deceased, and whose representatives are the principal defendants in this cause — was complainant, and the complainants in this cause were defendants.

Appeal in Chancery from Saginaw Circuit. This was a bill for specific performance. The case was heard in the court below on original and cross bill, answer and proofs. A decree was rendered for complainant in accordance with the prayer of the bill. The facts are stated in the opinion. 1.

This was an action of ejectment brought by defendant in error to recover dower in lands conveyed by her husband during their marriage. Judgment was rendered for plaintiff below. The facts and rulings of the Circuit Judge are stated in the opinion. 1.

The defendant, John Pitcher, was tried and convicted upon an information for receiving and concealing stolen ■property. The fact of the larceny was proved by Arnold P. Graves, from whom the property was stolen. The testimony of David O. Newman, an accomplice, was introduced on the part of the people. This witness testified that he and Samuel Reed stole the property in question, and carried-it in the night time to the house of the defendant, who received and concealed it.

The defendant was convicted of larceny and sentenced to state prison. The decision of the questions involved turns upon the charges of the court below, which, with the facts, are stated in the opinion. 1. No credit should be given to any witness (much less to a witness standing in the position of accomplice, as McEvoy did in this case,) who has committed willful and corrupt perjury in the very testimony, which is relied on to convict the defendant.

Appeal in Chancery from Wayne Circuit. This was a bill for partition of the real estate of the late Joseph Campau, deceased. A receiver was asked for, and the bill also prayed that the administrators of said Campau be enjoined from interfering with the estate; they having acquiesced in the action of several of the heirs attempting to dispose of it among themselves, in fraud of complainant, and having yielded possession.

In the matter of Samuel W. Jackson on petition of George W. Bissell and John Hosmer, guardians, for a writ of habeas corpus against Samuel S. Taff.

K. Gillett, a Circuit Court Commissioner of Wayne county. This writ was sued out for the purpose of reviewing the proceedings of the Commissioner on a motion to dissolve an attachment. The facts are stated in the opinion. 1. This court will examine into the evidence on certiorari to “determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved.” — 9 Mich. Ill; 10 Id. 9; 11 Id. 353. 2.

This was an action of assumpsit brought against defendant in error — a married woman who was engaged in keeping a boarding house — for certain furniture purchased by her, for said business. Judgment was rendered for plaintiff. The facts are stated in the opinions. 1. The defendant purchased the property in her own name, for herself, and not for her husband, or as his agent. Section 1, of the act of 1855.— Gomp.

This action was brought against plaintiffs in error to recover the value of one sack of wool alleged to have been delivered to them, as carriers, for transportation. Judgment was rendered in the court below for plaintiff (defendant in error).

Quo Warranto. The information in this case was filed by William L. Stoughton, the Attorney General, against the defendant for intruding into and usurping the office of county treasurer of Marquette county.

Proceedings were had in the Recorder’s Court to open a street running through appellant’s premises, and which would leave part of said premises on each side of said street.

Appeal in Chancery, from Oakland Circuit. This was a bill to quiet title. The case was heard on bill, answer and proofs, and a decree rendered for complainant. The facts are stated in the opinion. 1. Where a party represents a prior lien derived from the same source, he and his grantees are proper parties to a foreclosure bill. — Story JSq. PI. §186 and notes; Id. 193 and notes; Mill, on Mort. (3d ed.) p. 159, §70; 11 Wheat. 304, 306; 11 Paige, 28, 29, 39, 40; 3 Johns.

K. Gillett, a Circuit Court Commissioner for Wayne county. Plaintiff in error was found guilty by the Commissioner of fraudulently disposing of his property, against the provisions of the “Fraudulent Debtor Act”/ and this writ was sued out to review the proceedings thereon.

Appeal in Chancery from Muskegon Circuit. This was a bill to enforce the specific performance of a written contract for the sale of land. A cross bill was also filed by defendant, for the purpose of having- the contract cancelled and delivered up. A decree was rendered- in the court below dismissing the bill, and ordering the contract to be cancelled. The facts are stated in the opinion.

' This was an action of trespass,” commenced before a justice of the peace. There was no appearance on the return day, and judgment was rendered for plaintiff for one hundred dollars damages and costs. The case was removed by certiorari to the Circuit Court, on the ground that the summons issued by the j justice of the peace was void, because no United States! revenue stamp was attached thereto. The Circuit Court reversed the judgment of the said justice of the peace.

Appeal in Chancery, from Kalamazoo Circuit. This was a bill to foreclose a mortgage.

Appeal in Chancery from Kent Circuit. Motion to dismiss for want of prosecution. An appeal was taken by a portion of the defendants, and in giving directions to the clerk for making a return, he was, by mistake, ordered only to return so much of the record as embraced the matters in which those defendants were concerned.

Taylor was defendant in a replevin suit before Tripp, who was a justice of the peace in Clinton County. The writ of replevin was not served a sufficient time before the return day, and the justice declined to proceed. The defendant thereupon waived a return' of the replevined property, and asked the justice to proceed to assess its value, which he declined to do.

Appeal in Chancery from Kalamazoo Circuit. This was a bill to foreclose a mortgage given to secure the payment of a note. The defense was a material alteration in the note. A decree was rendered in favor of complainant, and a petition for re-hearing was filed, but denied. The facts are stated in the opinion. 1. The burden of proof rests upon the party who alleges the alteration of a note as a defense.

This was an action of assumpsit, brought by defendant in error to recover damages for the failure on the part of plaintiff in error to transmit a certain telegraph message from Detroit to Baltimore. The charges were, paid to Baltimore, though plaintiff in error’s lines only extended to Philadelphia. The message was correctly sent to Philadelphia, and delivered there to the agent of the Baltimore line. The error occurred between this point and Baltimore.

This Avas an action upon a promissory note. The defendant filed a plea, in substance, that he Avas attending the Circuit Court in a suit wherein he was a party defendant, and while in such attendance that the summons in said suit was served upon him; and that lie claimed exemption from the service of such process during such attendance. Plaintiff demurred to the plea. The demurrer was overruled and the plea sustained.