Volume 17 — Michigan Reports

Defendant was tried and convicted in tbe Recorder’s Court at Detroit, upon an information for murder. Tbe facts are stated in tbe opinion. The defendant was convicted in tbe Recorder’s Court of tbe-city of Detroit, of tbe crime of murder in tbe first degree. Tbe fact of tbe homicide is not denied. The questions raised by tbe bill of exceptions relate to tbe admission of evidence and tbe charge of the court. 1.

Appeal in chancery from Wayne Circuit. This Avas a bill calling for an account betAveen partners. The defendant filed a plea of the statute of limitations. The case Avas heard on pleadings and proofs, and the bill was dismissed. 1.

Appeal in chancery from Ingham Circuit. The bill in this case was filed by nine freeholders of the city of Lansing, to restrain the collection of a tax. The cause was heard in the court below, on demurrer. The bill was dismissed, and complainants have appealed to this court. Defendants assign two special causes of demurrer. First. Complainants’ bill is multifarious.

This was an action of replevin to recover possession of certain personal property levied upon by defendants by virtue of an execution. The jury, in a special'verdict, found the following facts: 1. That prior to and on the 29th day of September, A. D.-1866, one Stewart'McDonald was the owner'of the property described in the plaintiffs declaration, and that the same constituted a part of the household furniture then owned and used by said McDonald. 2.

This was an action of assumpsit on a promissory note. The declaration was on the common counts, with a copy of the note attached. Defendant pleaded the general issue, and gave notice of set-off. On the trial, evidence was admitted, under objection, explaining the nature of the consideration of a certain agreement conditioned to pay partnership debts. Judgment was rendered for defendant. 1.

This was an action of trespass against the defendant, plaintiff in error, for seizing and taking certain goods of the plaintiff, defendant in error.

This Avas an action brought against the defendant as carriers to recover damages for an alleged injury to certain horses Avliile in transit on their road. The plea Avas the general issue.

Case made from St. Joseph Circuit.- Motion for judgment against sureties on appeal bond. Mitchell sued Shuert before a justice, and recovered judgment. Shuert appealed to the Circuit Court, giving the usual appeal bond with sureties. In the Circuit Court Mitchell recovered judgment for a less amount, and, on motion, he then took judgment against the sureties. Mitchell then brought the cáse to this court for review on case made.

Mandamus. This is an application for - a mandamus to compel the Judge of Branch Circuit to vacate an order made and entered -by said Circuit Court February 14, 1868, setting aside the judgment and granting a new trial in the case of John. Shimer v. Allen Turner and Catharine A. Turner, on the ground of newly discovered evidence.

This action was brought to recover from the defendant below, and who was an agent of the American Express Company, the penalty for an alleged violation of the provisions of Act No. 140, Session Laws of 1867, entitled “An act to regulate express companies and their agents, and individuals prosecuting the express business, not incorporated by the State of Michigan.” The cause was tried without a jury, and the court found the following facts: “ That the American Express…

This suit was brought by defendant in error against Butterfield, to recover the sum of $625 and interest thereon, which sum had been paid by said Seligman to said Butter-field, in pursuance of a- special written agreement) and for which Butterfield was to convey an interest in certain lands, but which he failed to perform.

This was an action brought by defendant in error to recover damages from the Detroit and Milwaukee Railroad Company, for injuries received, by being run over by their cars at Holly. A verdict was rendered by the jury for plaintiff below, for $12,000. The case was removed to this court by writ of error and bill of exceptions.

Appeal in Chancery from Clinton Circuit. This was a creditor’s bill filed by complainant ■ against Boyd & Wiggins, and one Hodge, to compel said Hodge to account to complainant for the proceeds of a re-sale of certain real and personal property, which, it is alleged, was fraudulently sold by Boyd & Wiggins to Hodge with intent to defraud their creditors. The bill was taken as confessed by defendants, Boyd & Wiggins, and heard on pleadings alid proofs as to defendant, Hodge.

Quo Warranto. In this cause certain issues of fact, arising upon the several pleas of the defendant, were referred for trial to the Ottawa Circuit. A trial by jury was had, and a verdict rendered for the relator, and which, with the report of the Circuit Judge, were transmitted to this court for final judgment.

Appeal in Chancery from Wayne Circuit. The bill in this cause was filed to compel defendant to issue a certificate to complainant of certain shares of stock. The cause was heard upon pleadings and proofs, and the bill was dismissed. The facts are stated in the opinion. 1.

Mandamws. This was a motion for a further return to the writ.

<p>Mandamus: Regents of the University: Professorship of homeopathy. The legislature having provided for the payment, to the Regents of the University, of a tax of one-twentieth of ft mill on the dollar, upon all the taxable property in the state, “ Provided, That the Regents of the University shall carry into effect the law which provides that there shall always be at least one professor of Homoeopathy in the Department of Medicine, and appoint said professor at the same salary as the other professors in this department.” And the regents having adopted certain resolutions “that there be organized in the Department of Medicine a school to be called the Michigan School of Homoeopathy, to be located at such place (suitable in the opinion of the Board of Regents) other than Ann Arbor, in the State of Michigan, as shall pledge to the Board of Regents by June 20th next, the greatest amount for buildings and endowment of said school,” and appropriating $0,000, besides the salaries of Professors, out of said tax, to be expended in establishing said School of Homoeopathy, and appointing, for the present, one Professor in said school at the same salary as the other Professors, the Auditor General refused to issue his warrant on the State Treasurer for the payment of any of the money raised by said tax, on the ground that the resolution of the Regents did not constitute performance of the condition, upon which the aid was granted to the University; and insisting that the condition required the appointment of such Professor in the existing Medical Department of the University at Ann Arbor, and not elsewhere. On motion for a mandamus to compel him to issue his warrant, the writ was not granted, a majority of the court not assenting to the issuing of the writ.</p>

This was an action of ejectment, brought to recover the possession of certain lands in Hillsdale County. Upon the trial, the plaintiff produced and offered in evidence the record of a certain patent, purporting to be the record of a patent from the Hnited States to Oliver Johnson, conveying “The east half of section thirty, in township five, south of range four, west” — said patent being dated August 10, 1839.

Appeal in Chancery from Kalamazoo Circuit. The bill in this cause was filed by complainant to obtain a divorce from defendant on the ground of desertion. The cause was heard on the pleadings and proofs, and a decree granted in favor of complainant. The facts are stated in the opinion. 1.

Appeal in Chancery from Kalamazoo Circuit. The bill in this case was filed by the complainant to obtain a limited divorce from her husband on the ground of cruelty and neglect to support his family. The bill also prayed for the custody of the children and a sufficient provision for maintenance. The cause was heard on pleadings and proofs and a decree granted as prayed for. The facts are stated in the opinion. 1.

<p>Error to Ingham Circuit.</p> <p>This was an action of ejectment, brought to recover the possession of certain real estate bid in by defendant in error at the annual state tax sale for the non-payment of taxes for the year 1863.</p> <p>The declaration was in the usual form.</p> <p>The case was tried without a jury, and the court found the following facts, to wit:</p> <p>“This was an action of ejectment brought by the plaintiff to recover block £A/ city of Lansing, Michigan, who based his claim to the land, and right to recover, upon a tax deed made by the Auditor General of the State of Michigan to him, for the delinquent taxes for the year 1863; the taxes for the non-payment of which said premises were sold, were as follows:</p> <p>“State tax, $1.33; county tax, $6.93; city tax, $3.42; highway tax, $0.45; school tax, $3.70; bridge tax, $4.56; ward tax, $1.80. Amounting in all to $22tW; which sum, with the addition of $3TVo interest and charges, amounting to $25t3tV; was the sum paid by the plaintiff when he purchased the premises at the annual tax sales, for the purchase of the premises.</p> <p>And further finds that the defendant, in the Fall of 1864, and before the time of redemption had expired, applied to the- office of the Auditor General, at Lansing, to redeem the premises in question by paying the amount for which it had been sold, with interest, which application was in writing, and contained other descriptions of land, at the same time leaving with said Auditor General money to pay the redemptions of all the descriptions, but by mistake at the office of the Auditor General, no redemption certificate for the premises in question was made, which was not discovered until the time for the redemption had expired; that no money was retained by the Auditor General for the redemption of these premises.</p> <p>And the court further finds that the city, highway and school tax were illegally assessed; which fact was admitted by the parties upon the trial of said cause.</p> <p>From the foregoing facts, the court deduces the following conclusions of law:</p> <p>First, That the tax deed from the Auditor General to the plaintiff for the delinquent taxes of 1863 was void, and the defendant entitled to a judgment for the land in question.</p> <p>Second, That the plaintiff is entitled to recover a judgment against the defendant for the sum of $25T3J„, being the whole amount of taxes, interest and costs paid by him for the purchase of said land at the annual tax sale, with interest at the rate of twenty-five per cent, per annum, and that judgment should be entered accordingly.”</p> <p>"Whereupon judgment was entered accordingly.</p>

Appeal in Chancery from Kalamazoo Circuit. The bill in this cause was filed to enjoin the Board of School Inspectors of the Township of Oshtemo, Kalamazoo County, from proceeding to dissolve, reorganize or .alter School District No. 13 in said county; and also to account for certain taxes collected. The cause was heard upon stipulation, and a perpetual injunction was granted. The legislature has the power to organize school districts, either by special or general law.

Suit in this- case was commenced by attachment. The ivrit omitted to state the year of the return day. A motion to set aside the writ for said cause was denied, and judgment was rendered in favor of plaintiff. The writ of attachment by which the suit Avas commenced is void for Avant of a proper return day. It is returnable on the second day of April; not specifying any year.

<p>Circuit Courts: Vacation of judgment. The power of the Circuit Court to set aside a judgment, is not confined in its exorcise to the same term at which the judgment was rendered — 12 Mich. UU9 — and where it possesses such power it is usually a discretionary one and can not be reviewed.</p> <p>Circuit Courts: Writ of possession wrongfully issued. Where the Circuit Court set aside a judgment, and writ of possession issued thereon under which certain premises had been seized, held^ that it was authorized also to restore the possession of the premises so seized.</p> <p>It is a sound rule of practice that, when the process of a court has caused an abuse, and no innocent party has obtained rights under it, the court, in setting aside the process, may restore what it has wrongfully seized.</p>

Appeal in Chancery from Sanilac Circuit. The bill in this case was filed to quiet the title of the complainant to., certain real estate in Sanilac county, the title to which was derived through an administrator’s sale. The case was heard on pleadings and proofs, and a decree granted in favor of complainant.

Appeal iu Chancery from Wayne Circuit. The bill in this case was filed against the City of Detroit, E. N. Lacroix, its special collector, and Smith, Cook & Co., a firm of paving contractors, to enjoin the collection of a paving tax upon the premises of complainant, situate on Woodbridge street, in the City of Detroit, assessed in 18G7, to defray the cost of paving in front of said lot with the “Nicholson Pavement,” so called. ■ Tbe bill charges that the “Nicholson Pavement”…

Mandamus. This was an application to compel the Auditor General to execute deeds for certain swamp lands.

The defendant in error, Mizner, sued the plaintiff in error upon a bond given by him on appeal from a commissioner awarding restitution of certain premises for the nonpayment of rent. The declaration alleges a holding by Monnier from Mizner, under successive demises, on all of which rent was due, (the first lease commencing January 1, 1866, and the last May 1, 1867,) and that the commissioner found that all the rent was due to that date.

This was an action by plaintiff to recover a sum of money paid by him as surety upon a note. The declaration contained a special count and the common counts. The defendant pleaded the general issue and gave notice of special matter. A verdict was rendered for the defendant. The facts are stated in the opinion. 1.

This was an action brought by the defendants in error to recover damages for a breach of special contract.

Case made from Allegan Circuit. This was an action brought to recover the possession of 50,000 feet of lumber, claimed to be the property of plaintiff, and unlawfully detained by defendant. The declaration was in the usual form, and the plea was the general issue. Judgment was rendered in favor of plaintiff. The case turns upon the construction of a certain contract, and which is fully set forth in the opinion.

The defendant in error sued the Railroad Company to recover damages caused by an alleged unreasonable delay on the transportation of cattle, received by them at Toledo, to be transferred to Cleveland; 'and destined to New York. The -jury rendered a verdict for plaintiff for $555. The cattle were received on the 12th of February.

This was an action of trover against the plaintiff in error to recover the value of certain goods described in the declaration. On thev trial, the testimony of the plaintiff tended to prove that on the 9th day of January, 1867, he p\irchased the goods in question of Black & Alexander; that they were taken from his possession by. the defendant; and that the value of the goods thus taken was as alleged.

This was an action of assumpsit to recover damages for a breach of contract to deliver lumber. The declaration set forth two different contracts. The common counts were also added. The defendant pleaded the general issue, and gave notice of recoupment.

This was a motion to strike out the bill of exceptions, and to dismiss the writ of error. It appeared that, on the 5th day of September, 1867, the defendant in error, Eogers, recovered a judgment against plaintiffs in error for the sum of $1,548.75 and costs, in the Bay County Circuit: Judge Walker presiding at the trial.

This was an action to recover the value of services as an attorney. The declaration was upon the common counts. The bill of particulars showed services to the amount of $2,650. The case was tried by the court without a jury, and judgment rendered for plaintiff in the sum of $355. It appeared, on the.trial, that plaintiff had rendered a bill to defendant, purporting to cover all charges, amounting to $355; also that defendant had refused to pay the same.

Case made from Bay Circuit. This was an action of replevin, brought to recover possession of certain dental instruments, which, had been levied upon by an execution under a judgment for the purchase price thereof. Judgment was rendered for plaintiff. The facts are stated in the opinion. 1, Exemption statutes should be liberally expounded to effect the humane object in view.— 25 Wend. 370; 34 Barb. 364; 10 Mich. 538, 546; 24 Conn. 338.

The petition.set forth the following facts: Parkhnrst, through one Shwimrn as his agent, on the first day of June, 1868, applied at the State Land Office to the Deputy Commissioner to purchase certain State swamp lands which he particularly described, and which, under the law, were subject to private entry or sale to any person applying at $1.25 per acre.

This was an action of assumpsit, brought to recover the value of certain iron work made under a contract. The declaration was upon the common counts. Judgment was-rendered for plaintiff. In the course of the plaintiff’s evidence, it appeared that said work was done under a special contract in writing, signed by both parties, and which was introduced.

This was an action of assumpsit, brought to recover the value -of the rent of certain property, and also the amount due upon several judgments. The declaration contained the common counts and several special counts. The facts are stated in the opinion. Judgment was rendered for the defendant. 1. There was no misjoinder of counts in the declaration.

Case made after judgment from Wayne Circuit. This was an action of debt brought by the plaintiffs against the defendant upon a judgment. The declaration consisted of six counts upon the judgment on which suit was brought. The pleá was the general issue, with a notice thereunto annexed, that the causes of action alleged in the plaintiff’s declaration, and neithef of them, accrued to the plaintiffs within ten years next before the commencement of this suit.

Appeal in Chancery from Saginaw Circuit. This was a foreclosure suit, and a decree having been rendered, the property of Little, sworn to be of, the value of $20,000 or $25,000, was sold and bid in by Henry C. Potter for $11,750.

The Commissioner dissolved an attachment on several grounds, and this proceeding was to review his action. The facts are stated in the opinion.

This was an action of assumpsit, brought by the County of Wayne to recover certain fmes collected in the Central Police Station Court of the City of Detroit.

This was an action of assumpsit brought to recover damages for the breach of a contract.

Appeal in Chancery from Wayne Circuit. The bill in this cause was filed to enjoin defendant from disturbing complainant’s possession of certain premises by virtue of certain proceedings at law which defendant had instituted. An ex parte injunction was granted by a Circuit Court Commissioner on the affidavit of complainant. The defendant entered a motion in the Circuit Court to dissolve the same.

This was an action of trespass brought to recover damages alleged to have been committed by the cattle of defendant upon plaintiff’s premises. Judgment was rendered in favor of plaintiff. The tacts are stated in the opinion. At common law no person is bound to fence against the beast of another.

This was a motion to dismiss the writ in this case, for the reason that the bill of exceptions was signed by the Circuit Judge after he had resigned his office.

Manclcmms to the Board of Registration of the Fourth Ward of the City of Detroit. This was a petition for a mandamus to compel the respondents to meet as a Board of Registration and examine relator under oath, as required by the Registry Act, to hear any testimony that relator might offer as to his right to registration as an elector of said ward, and to register him, if, upon such examination, he was found qualified and entitled to registration.

The plaintiff in error was convicted of the murder of one John Morse. Several exceptions were taken to the rulings of the court, respecting the admission of certain evidence, all of which are stated in the opinion. 1.

Appeal iu Chancery from Ingham Circuit. The bill in this canse was filed to restrain the City of Lansing from collecting a tax for grading a street fronting eomplainan ts’ premises.

Appeal in Chancery from Wayne Circuit. The bill in this cause was filed to enforce the specific performance of a contract for the purchase of certain real estate in the City of Detroit.

Appeal in Chancery from Clinton Circuit. It appeared that Ira Ring, husband of complainant, owned the premises in question, and that he occupied the same as his homestead with the complainant, his wife, till the time of his death; that defendant, Daniel Burt, Della Burt (his wife, and daughter of complainant) and their children also lived with them; that said Ira Ring owned no other lands, and the premises were worth over §1,600.

This was a proceeding under,. the Fraudulent Debtors Act — Gomp.

The legislature of 1867, passed an act- — Sess. L. 1867, vol. 1, p. 168 — which provided that each bank and banking association, organized under the laws of the United States, doing business in the State of Michigan, should pay an annual specific tax, to the state, of one per cent, upon the capital stock paid in of said banks, less the value of the real estate owned by said banks, which should be in lieu of all other taxes upon said banks, or the shares thereof held or owned…

This was an action of covenant brought on a bond, given by defendant Treadway, ■ with sureties, as County Clerk of Oakland County.

This was an action of trespass on the case to recover damages for an alleged malicious prosecution. Judgment was rendered for plaintiff. The facts are stated in the opinion. A discharge or acquittal of a defendant is sufficient to throw upon'the prosecutor the burden of proof of probable cause; but if it appear that his discharge or acquittal arose from otherwise than on the merits, it is insufficient to shift this burden of proof.

This was an action of trespass on the case to recover damages for the sale of unsound fish. The declaration contained a special count alleging a Avarranty of tbe fish. The common counts Avere also added. Judgment was rendered for plaintiff. The facts are stated in the opinion. This was merely a sale of goods, in the ordinary course of business, without express warranty: and no Avarranty in such case is implied.

This was an action of assumpsit brought.to recover the amount due upon a promissory note. The plea was the general issue with notice of set off and tender. Upon the trial, plaintiffs gave in evidence a promissory note dated December 3, 1866, made by defendant for the sum of $400, payable six months after date at the First National Bank of St. Johns, to the order of J. W. Hooker, and indorsed by him; and thereupon rested.

Eitot to Gratiot Circuit. This was an action of assumpsit, to recover damages for tlie broach of an alleged contract for tlie purchase of certain logs. Judgment was rendered for defendants..

Joseph Circuit. McMaken, plaintiff below, sued out a writ of attachment against Cross and McDowell. The affidavit upon which the writ was issued, is in the words following: “STATE OF MICHIGAN ss St. Joseph County.

This was an action of assumpsit upon a promissory note. The pleadings and the facts of the case are stated in the opinion. Judgment was rendered for plaintiff below. 1. The Justice, E. LaKue, before whom the suit was originally commenced, had jurisdiction of the case, and the plaintiffs appeared by their attorneys.

This was an action of debt, brought upon a judgment recovered in the Court of Queen’s Bench, at Toronto, Canada. The plea was the general issue, with notice that defendant would insist that there was no such record as that declared upon.