Volume 18 — Michigan Reports

This was an action to recover certain money collected by defendant for plaintiff on account of bounty money received by the former, for the enlistment of the latter’s son in the army. Judgment was rendered in favor of defendant below. The facts are stated in the opinion.

Appeal in Chancery from Muskegon Circuit. The bill in this cause was filed by complainants to restrain Samuel D. Eldred, one of the defendants, from proceeding under the Forcible Entry and Detainer act to remove them from certain premises, and to compel him to release his claim of title to the same. Eldred filed his cross-bill, setting up his title to the same. Proofs were taken in both cases, and the cases were heard together.

Circuit. This was an action of assumpsit brought on book account in a Justice’s Court. The case was appealed to the Circuit Court, where the matter in issue was referred to a referee, who found for the plaintiff below; allowing him interest on certain items of account. The report was excepted to by defendant. Some of the exceptions were sustained, and judgment was rendered in favor of plaintiff for a reduced amount.

Appeal in Chancery, from Wayne Circuit. The bill in this case was filed to set aside a sheriff’s deed of certain real estate executed to two of defendants as void, and as constituting a cloud upon complainants title.

Case made from St. Joseph Circuit. “ This was an action for money had and received. The facts are stated in the opinion. Judgment was rendered for plaintiff below.

This was an action to recover the balance of the purchase price of certain pork sold by plaintiff to defendant. The defence claimed that the pork was purchased to be used as food, and that the plaintiff so understood it, and that it proved unfit for such purpose. On the trial they asked the Court to charge the jury that if the facts were as claimed, that there was an implied warranty that the .pork was sound, and fit for the purpose of food; but which was refused.

Appeal in Chancery from St. Joseph Circuit. The bill in this cause was filed to enjoin the defendant perpetually from closing up ;a certain street fronting complainant’s premises. The facts are stated in the opinion. The prayer of the bill was -granted. 1. This case comes under the well recognized head of equity jurisdiction.

This was an action of Trover brought to recover damages for the conversion of certain shares of stock. Judgment was^ rendered in favor of the defendant below. The facts are stated in the opinion. 1.

This was a proceeding under the “Forcible Entry and Detainer Act,” to recover the possession of certain premises purchased under a written agreement, and upon which default had been made. The plaintiff gave no notice to quit under the statute. The facts are stated in the opinion. Judgment was rendered for defendant. The only question in this case is, whether the Court erred in deciding that notice to quit was necessary.

This was an action of debt founded upon a judgment. The case was referred to referees who filed their report. The case was submitted to the court on exceptions, filed by defendant in error. The exceptions were sustained, the report was set aside, and a judgment rendered for plaintiff below.

Appeal in Chancery, from Washtenaw Circuit.' This was a motion to dismiss the appeal in said cause, for want of prosecution. The appeal was taken June 13, 1865. The usual bond was filed on the 10th day of August following, and a transcript of the record was filed in this court on the 6th day of October, 1868.

This was an action of Eepleyin to recover the possession of certain personal property. After filing a declaration in the causó, and after several continuances and notices of trial, the plaintiff below entered the default of defendant for want of a plea, and subsequently moved to strike the case from the docket for the same reason. The Court below ruled that both parties having treated the cause as at issue, it was too late for the plaintiff to deny the fact.

This was an action of ejectment- to - recover the possession of certain premises in Bay county. . The decision of the case turns upon the validity of a certain deed introduced in evidence by the plaintiff, and which was excluded by the court belo\y for the reason that the officer who took the acknowledgment did not subscribe the same.' A verdict was found for the defendant.

The plaintiff in error was tried and convicted in the court below for tbe murder of his son James Dixon. On the trial, the prosecution offered as a witness one Henry S. Dean, who testified that he was a Justice of the Peace; that he knew Harriet Dixon — claimed to be the wife of defendant; that he married her in 1857 or 1858 to a man by the name of Phelps or Phillips; that he was a tall slim man with sharp features and black hair.

Case made from Bay Circuit. This was an action of debt brought by the plaintiff upon a certain bond executed by the defendants to the sheriff of said county, to prevent the removal of certain goods seized under attachment proceedings against William A. Cook, Charles M. Smith, and George H. Rozet. The declaration set forth the attachment proceedings, the execution of the bond, and the judgment.

Mandamus to tbe supervisors of tbe townships of Porter and Calvin, in Cass County, to levy a tax for certain county bonds received by them.

Appeal in Chancery from Kent Circuit. This was a bill to enforce the specific performance of a certain contract for the exchange of land. The bill was heard in the court below on pleadings and proofs, and dismissed. The facts are stated in the opinion.

This was an appeal by Merchant M. Goodrich, executor of H. W. Goodrich, deceased, from the decision of commissioners allowing a claim in favor of tbe administrator of C. W. Goodrich, Jr. deceased.

This was an action brought to recover damages from the Great Western Railway Co., for the loss of certain flour destroyed by fire on the 26th day of April, 1866, while in their depot at Detroit. The following is a copy of the declaration: “State or Michigan, Wayne County.

Clair Circuit. This was an action to recover possession of certain lands in St. Clair County. The defendant below claimed title to the land described in the plaintiff’s declaration, by virtue of several tax deeds and a sheriff’s deed. He also claimed compensation for buildings and improvements made by him, having been in possession of the premises for six years and more, prior to the commencement of this suit.

This was an action of ejectment to recover 20 Ty=0 acres upon Private Claim 61, in town 3 south, range 11 east, being Ecorse, Wayne County; and one half acre nearly adjoining. Both parcels lie east of the north branch of the Ecorse river, and between the river and the northern line of town 3. The claim seems never to have been paténted to any person by the U. S. Government.

This^ was an action of replevin for six oxen. The writ and the declaration described them as six oxen.” The defendant demurred to the declaration, on the the ground that the description was insufficient. The Court overruled the demurrer, and gave judgment for the plaintiff. ' ' • • The description of the property replevied was insufficient in both the writ and declaration.

Clair Circuit. This was an action of assumpsit brought to recover the value of alleged services rendered the Grand Trunk Railway Company by one of its agents. Upon the trial, the plaintiff was sworn as a witness, and testified as follows: I entered the service of defendant in May, 1856. In the latter part of 1859 or early part of 1860, I came to the Port Huron station. I continued in employ of defendant from May, 1856, to October 31st, 1862. I was station agent at Port Huron.

This was an action of trover brought to recover damages for an alleged conversion of special property in the steam-tug Union. Upon the trial, the plaintiff offered in evidence certain letters and telegrams, of which the following are material portions: “Bat City, February 86, 1866. Messrs. D. A. Van Varkenbtjrg & Son : G-ents — I wish to know if you would charter your tug Union for the coming season.

This was an appeal from the allowance of commissioners on claims upon the estate of decedent. In the Circuit Court no declaration was filed, or new issue formed. The claim, as presented to the commissioners, as shown, by their report, was for the sum of $1,400, or thereabouts, balance due on account, and the judgment in the court below, upon the verdict of the jury, was for $2,800.

<p>Appeal from Muskegon Circuit, in Chancery.</p> <p>Motion for writ of assistance.</p>

Appeal in Chancery, from Chippewa Circuit. The bill in this case was filed in the Circuit Court for the county of Chippewa, in Chancery, to restrain ■ the defendants from committing a trespass on the property of complainant by removing a dock, warehouse and certain sunken cribs, intended as the support of a dock in St. Mary’s river, at the village of Sault Ste Marie.

Clair Circuit. This was an action of ejectment. The defendant having claimed compensation for improvements under the statute —2 Comp. A. § § 4P93 to 6 — sought to defeat plaintiff’s title by proving title in himself; first, by deed made on a sale under execution; and, second, under several deeds from the Auditor General, for delinquent taxes.

Tbis was an action of trover to recover the value of certain logs. The summons erroneously described the plaintiff as Absolem Baxter. In the declaration the true name was given; to wit, Absalom Backus. The default of plaintiff was duly entered by defendant and made absolute, on the ground that no declaration had been filed corresponding with the title of the plaintiff as described in the summons.

This was an action of replevin, brought by the East Saginaw Railway Company against the City Tax Collector for certain property levied upon for the non-payment of taxes. A verdict was rendered for plaintiff below. The facts are stated in the opinion. This is an action of replevin in the cepit, brought for the recovery of one pair of mares, mentioned in the declaration. The action cannot be maintained unless the property was unlawfully taken.

Erx’or to Lenawee Cix’cuit. This was an action of trover for an alleged conversion of certain fux-s. The case was referx’ed by consent. The referee reported against the plaixitiff below. Certain exceptions were takexx to the report of the referee and the action of the court, all of which, with'the errors assigned, are stated in the opinion. 1. There is in fact no special assignment of errors in this case as required by the rule. — Supreme Court Rules, No. 12; 7 Mich. 871/.

Mandamus to Circuit Judge of Branch County. This was an application to compel the Circuit Judge to set aside a judgment rendered against Wallace W. Barrett, because of an illegal notice of trial. The facts are stated in the opinion. 1. It is error to try a cause without it is first duly noticed for trial. ■ — • 2 Comp. L. § 4,847; Chamberlain v. O’Keef, 2 Mich. 867; Small v. Adriclc, 5 Wend. 187; Knapp v. Mead, 2 Johns. Gas.

Appeal in chancery from Wayne Circuit. The bill in this case is filed to foreclose two mortgages: given repectively by Amariah Rawson and William E. Warner, to George W. Gilbert. To the foreclosure of the latter mortgage, defendant Morton offered no defence; but be claimed a right to the property covered by the Rawson mortgage superior to that of the complainants.

The defendant, in the court below, was tried and convicted upon an information charging him with larceny of a horse. The errors assigned, and the facts bearing upon them, are stated in the opinion. 1. Defendant, in. court below, was tried in Macomb Circuit, for larceny of a horse.

This was an action of assumpsit, brought to recover damages for an alleged breach of a contract to purchase certain shares of stock. The declaration contained special counts, and the .common counts. Judgment was rendered for plaintiff. The facts are stated in the opinion. The court erred in fixing the measure of damages in his instructions to the jury. The plaintiff below could only recover at all upon one of three hypotheses of fact, viz: First.

This was an- action of replevin. The property was delivered by the sheriff to the plaintiff below. The jury rendered a verdict for plaintiff for $10.00; but there was no assessment of the value of the property, either by the court or jury. Judgment was thereupon entered for plaintiff, with costs. 1.

Appeal in Chancery from Calhoun Circuit. The bill was filed to compel the defendant to convey to complainant certain fractional lots in the village of Albion, included in an agreement of purchase, but omitted by the defendant in his conveyances; such omission being at the time unknown to the complainant, he supposing ' they were embraced in the conveyances. The premises were described in the bill as the “ Knapp House property,” and known as such.

This was an, action to recover damages for not conveying certain real estate according to the terms of ■ a certain contract.

The defendant was tried and convicted for the homicide of one Elias Cowles.

Appeal in Chancery, from Barry Circuit. The bill in this cause was filed to obtain a'decree annulling a marriage on the ground of fraud. The cause was heard on pleadings, and proofs, and a decree granted as prayed for. The facts are stated in the opinion.

<p>Appeal in Chancery from Wayne Circuit.</p>

This was an action of ejectment, brought to recover the possession of certain premises situated in the city of Marshall. The -plaintiff claimed, by virtue of a sheriff’s deed, based upon a judgment recovered against the Calhoun County Bank. The defendant relied upon an alleged outstanding title of the receiver of the bank. Judgment was rendered in favor of defendant. The facts are stated in the opinion.

This was an action brought to recover a certain sum of money alleged t9 have' been promised to plaintiff by defendant. The plaintiff declared specially, and on the common counts. On the trial, plaintiff testified “that in 1866, he and defendant were engaged in buying wool in Holly; that in July of that year a man calling himself Walker, came to Holly for the purpose of buying wool, and made arrangements with the defendants to purchase wool for him.

Appeal in Chancery, from Oakland Circuit. Held: in some of the cases, that it was necessary to allege, and to show fraudulent representations; but the more recent cases follow the case of Hill v. Buckley, holding that when a misrepresentation was made as to quantity, though innocently, the vendee is entitled to relief by way of an abatement, or a recovery of the consideration,…

•This was an action, of ejectment''for a strip of land, part of lot .No. 8, in the city of Ann Arbor. The entire lot belonged to Edward Munday in 1834, who, July 18, 1842, conveyed to Mulford and Peter Martin a portion of the same, commencing on Main street at the northeast corner of said lot, and running on Main street 21 feet south, thence west to the alley in the rear of said lot, thence north to the north line of said lot, and thence east to the place of beginning.

Appeal in Chancery, from Jackson Circuit. Motion to dismiss. Complainant obtained a divorce in the court below, and defendant, in October last, took an appeal. The return should have been filed before the last January term, but it was not so filed. A motion was then made to dismiss, but was not granted. The motion was renewed at the present term, but failed because the notice of the motion was one day too short.

Tbis was an action of assumpsit, brought to recover tbe value of services rendered upon a vessel. Held: that the plaintiff’s cause of action or demand, was itself incapable 'of being set-off, and that, therefore, under the statute, such a defense could not be made. The precise question, then, to be determined, is whether the plaintiff’s cause of action is such that it could be the subject of a set-off. — 2 Comp. L. § 4180, subd. 2.

This was an action brought to recover damages for a failure to perform the conditions of a certain contract for the sale of real estate. Judgment was rendered in favor of plaintiff below. The facts are stated in the opinion. 1. The court erred in admitting parol evidence, tending' to show an extension of the time mentioned in the written contract for the payment of the money. — -Comp. Laws, §§ 3177, 3179, and cases hereinafter cited. 2.

Case Made after judgment, from Saginaw Circuit. This was an action of debt upon a bond, with penalty of $6,000, conditioned to pay all the debts of a certain firm. Judgment was rendered for plaintiff. The facts are stated in the opinion. This action is upon a bond in the penal sum of six thousand dollars, given by defendant to plaintiff, without sureties.

Manclmmis to the Board of Education of the City of Detroit. It appeared that in April, 1868, the relator duly and properly applied for the admission of. his child, a mulatto, of more than' one-fourth African blood, into the Duffield Union or Tenth Ward School of the city of Detroit, and was refused.

Appeal in Chancery, from Wayne Circuit. The bill in this cause was filed by complainant below, to obtain a divorce from defendant on the ground of desertion. > The case was heard on the pleadings and proofs, and the bill was dismissed. The facts are stated in the opinion. The complainant seeks a divorce on the ground of desertion by the defendant.

This was au action brought to recover damages of the Great Western Railway Co. for alleged injuries to certain horses while being transported Qver their road.

Case Made from Wayne Circuit. Tbis action was brought to recover damages for a breach of a covenant against incumbrances contained in a deed given by defendant to plaintiff. Judgment was given for the defendant. The facts are stated in the opinion. Courts of equity do not compel persons to perform contracts to which they are not parties, and especially women, to convey their lands to carry out the agreements of their husbands.— Weed v. Terry, 2 Doug. Mich. 844; Story’s Eq.

Mcmcla/nms to B. G. Stimson, Controller of the City of .Detroit.

This was a proceeding under the Water Craft Law (Latos 1864, JP- 107,) against the scow Jack Robinson, for a certain claim for tonnage alleged to constitute a lien against said scow. The claim was demurred to in the court below, but the demurrer was overruled, with leave to answer. The defendant answered — and complainant filed his replication. Judgment was rendered for complainant, jtnd defendant appealed to this court.

Appeal in Chancery from Macomb Circuit. The complainant filed her bill for a divorce, on the ground of cruelty. The Circuit Court, in August, 1867, awarded a limited divorce for one year only, with an allowance, by way of alimony of two hundred and fifty dollars. The defendant appealed.

This is an appeal by James W. Converse, from proceedings on the part of the Grand Rapids and Indiana R. R. Go. to condemn certain lands of his for the use of said road. The material facts are stated in the opinion. 1. The drawing of the jury was by the clerk, in the usual form, in presence of a justice of the peace and the sheriff. It is not required to be in presence of the court.— 1 Comp. Laws, 6J¡.1. 2.

The petition set forth that the present constitution of said state, by Article XIII, section 6, constitutes the Regents of the University of the State of Michigan, the Board of Regents of the University of Michigan; and by section 7 of the same Article, constitutes them a body corporate, known by the name and title of the Regents of the University of Michigan.

The petition set forth, that on the 6th day of December, 1865, the First National Bank of Detroit, commenced suit against George Blumburg, in tbe Circuit Court for the county of Wayne, in an action of assumpsit; that the general issue being pleaded, the cause was referred to a referee for trial, by stipulation of the attorneys, on the 1st of February, 1867; that on the 19th day of .November, 1868, the referee filed his report, in which he found in favor of the plaintiff;…

This case was decided at the January term of 1869, and is reported ante p. IS. An application was now made for a re-hearing or such other relief as might be proper upon a showing substantially as follows: It is claimed that by the decree possession is given of a larger tract than was covered by the contract under which the rights of Samuel D. Eldred accrued.

Appeal in Chancery, from Wayne Circuit. The bill iu. this cause, was filed by fourteen tax payers to restrain the city of Detroit, through its officers, from enforcing an assessment sought to be enforced against their lots fronting on Grand Eiver street, for qiaving the same with “Nicholson Pavement.” The bill set forth that the said lots were unequal in frontage and depth, and that several were irregular and triangular in form, that the street fronting them was of unequal…