Volume 19 — Michigan Reports

Circuit. This was an action of ejectment. The case was tried without a jury. During the trial, no exceptions whatever were taken, but at the close of the evidence, the defendant below requested the Court to make a special finding upon certain propositions of law, which he stated. The Court, at a subsequent term, declared orally that the plaintiffs should recover, whereupon judgment' was entered in the usual form for the plaintiffs.

<p>Application for Mandamus to the Township Board of the Township of Salem, to issue certain railroad bonds.</p>

This was a action of slander brought by John P. Dale against Frederick Huson, in the Circuit Court for the County of Washtenaw. To the declaration, the defendant pleaded the general issue only; and on the trial offered evidence to rebut the presumption of malice and in mitigation of damages. The evidence was excluded, and after verdict and judgment for the plaintiff, the defendant brought the case into this court by writ of error.

Appeal in Chancery from Saginaw Circuit. The bill in this cause was filed to 'enjoin the collection of an assessment for an improvement oh Genesee street in Bast Saginaw. The greater part of the ’cost of which was assessed upon the property in the vicinity benefitted, in proportion to the benefit. A perpetual injunction was granted in the Court below.

Tbis was an action brought into the Circuit Court for the County of Oakland by general and special appeal from the judgment of James S. Dewey, Esq., one of the Justices of the Peace for that County. The ground of the special appeal was that the Justice, after issue joined and an adjournment, had granted the motion of the plaintiff and ordered a trial of the cause by a jury.

This was an action of slander brought _ by John L. Smith v. Caleb Evarts.

Joseph Circuit. This was an. action of trespass brought by Zebina H. Wallace claiming under a general assignment for the benefit of creditors, from Robert H. Morrison.

Case made from Cass Circuit. This was an. action of Replevin brought by Daniel Wheeler against Perry Wilkins.

Error' to Shiawassee Circuit. This was an action of trespass brought in the Circuit Court for the County of Shiawassee, by James L. Thompson v, Joseph Vanderkarr, for entering upon the land in the possession of the plaintiff and cutting and carrying away a quantity of wheat. ' The plaintiff’s possession had been obtained under written contract for the purchase of the land on which the wheat was growing at the time of the purchase.

This was an action of ejectment brought by Jonas Good-ell v. Simon Labadie and others, who derive title from Alexis Labadie. Both parties claim under one Charles Beaulo; and the questions arising in tlie case in this court, are as to the effect of evidence introduced by the defendants to prove title from Beaulo to Alexis Labadie.

This was an action of assumpsit brought by Edmund Hall v. John McEwen upon a contract to deliver two million feet of pine saw logs, which were to be “of such classes or qualities that with judicious and careful sawing into lumber, they should yield at least twenty per cent ‘ upper ’ qualities.” The contract provided a mode of determining the quality of the logs, m case the defendant was not satisfied, upon delivery, that they would yield twenty per cent-above common; and it…

Appeal in Chancery from Berrien Circuit. In November, 1861, William Shoemaker, executed a mortgage on premises then occupied by him and his family, consisting of his wife and children, as a homestead. His wife did not join in the mortgage. This mortgage was foreclosed and the premises sold„under the decree to Davidson. Gardner, by whom proceedings were commenced to obtain possession of the premises.

<p>Replevin fm'property seized to enforce the collection of a tax. The Statute which provides that no replevin shall lie for any property taken hy virtue of a warrant for the collection of a tax, must be construed to apply only to cases where the property seized is that of the person, or of one in privity with the person, against whom the tax was assessed.</p>

Case made from Van Burén Circuit. This is an action of ejectment, commenced in the Circuit Court for the County of Berrien and transferred to the Circuit Court for the County of Van Burén, in which Jacob Beeson is plaintiff and John Comly and Mary Comly are defendants, to recover a parcel of land of about thirty-eight acres.

<p>Partition between heirs: Possession: Powei'S of the Court in decreeing equity of partition. In a partition in equity between heirs, it is not necessary that it should appear that the estate had been settled, or delivered over by the Court of Probate.</p> <p>It was not the intention of the statute, in conferring upon administrators the right to take possession of the estate of the deceased for the purpose of collecting rents, etc., to create an intervening estate between that of the ancestor and that of the heir, converting the latter into an estate in expectancy.</p> <p>Heirs have such an estate in possession of the inheritance as will enable them to maintain a bill in equity for a partition, notwithstanding the existence of the power of the administrator to take possessiefe under the statute. — Street&i' v. Patón, 7 Mich., Shi and Marvin v. Schilling, 12 Mich., 812 recognized and approved.</p> <p>When one of several heirs files a bill for a partition against the others, who had attempted a voluntary partition of the whole estate among themselves, excluding complainant, the Court may respect the voluntary partition, so far as it does not prejudice the rights of the complainant.</p> <p>Parties. An objection at the hearing for want of parties will not be allowed, unless the facts which show the objection to be well taken, appear on the record; and an allegation that a sheriff executed a deed purporting to convey certain lands to certain persons, without showing by what authority, shows no interest in the grantees, nor any necessity for making them parties:</p> <p>Nor will an objection that a party was irregularly added in the court below, it appearing that the person so added was a proper party and would be bound by the proceedings.</p>

The opinion having been delivered in this cause, Messrs. J. J. Speed and Theo. Romeyn presented a petition on behalf of Milton H. Butler praying that the cause be remitted to the Court below with leave to the petitioner to apply to be made a party, and that a final decision and decree be deferred until such application could be heard.

This was an action of debt brought by the defendants in error upon a judgment in their favor against the plaintiff in error and Abram V. Berry in the sum of $483 43. Bice pleaded the general issue and gave notice that the judgment had been paid and satisfied in full. The cause was referred to referees, who reported that there was nothing due on the judgment.

This was an action of trespass on the case brought by Michael Sage against Joseph Laurain, Michael Markey and Thomas Sullivan, who were Highway Commissioners of the township of Springwells, for an alleged malicious exercise of their power in causing a petition to be brought before them as such Commissioners for the laying out of a highway and acting upon such petition with the intention of injuring and oppressing the plaintiff.

Appeal in Chancery from Genesee Circuit. Held: if any, as the administrator of David Russell:— That the Blocks so purchased were the first sold by Albert Miller after the execution of the mortgage. And lje claimed that in case the Court shall find that the lien of the mortgage remains, that they should be last resorted to for the payment of the mortgage indebtedness.

<p>Deed delivered in escrow: Violation of condition. A deed deposited in escrow, but delivered without authority by the Depositary to the grantee, who inequitably refuses to perform the condition, will be declared void.</p> <p>Appeal in Ghanceny: Hearing. An appellant in Chancery will not be heard to urge as a ground of reversing the decree, the equities of his co-defendants who have not joined in the appeal, especially when such equities rest upon their alleged ignorance of the fraud of the party who appeals.</p> <p>Practice in Ghancenj: Closing proofs : Necessity of a motion to suppress depositions. No motion is necessary to suppress depositions taken after the closing of proofs, to exclude them from consideration on the hearing.</p>

<p>Evidence: Objections to its admission must be stated. A judgment will not be reversed for rulings upon the admission of evidence which do not affect injuriously the plaintiff in error; nor where the objection as stated ¿s not well founded; other objections, if they exist, will be considered as waive d.</p> <p>Evidence: Whether rebutting or not. When the character of evidence, whether it be rebutting or fnot, depends upon the effect which the jury may give to evidence which it is introduced to rebut, it i*s not error to admit it, even though its tendency as rebutting evidence is doubtful.</p> <p>Tender afta' suit brought. Whether in an action for the breach of a contract, and not for a sum certain, a party may tender damages after the commencement of suit under the statute; (Comp. L. § 4,536), guere. But when the damages found by the jury, upon proper evidence, exceed the amount of the tender, the evidence is immaterial, and, therefore, it is not error to exclude it.</p>

<p>Contract: As to equities o?' interests of third persons. Conrad had contracted with. Clemens to sell a tract of land containing a stone quarry, and to convey the same by deed to be executed by himself and other persons within ten days; and Clemens agreed that Conrad might continue to quarry and remove the stone for three months:</p> <p>Held, that in an action by Conrad against Clemens for refusing to allow him to take away the stone so quarried, it was immaterial to enquire why the co-grantors were to sign the deed; and that, as Clemens asserted no equities against any third party, there was no presumption that the co-grantors were interested as joint owners of the stone and therefore ought to have been joined as plaintiffs.</p> <p>Held further¡ That the neglect of Conrad to take away the stone according to the terms of the contract, did not operate as a forfeiture of his property.</p> <p>Evidence: Whether secondary or not. A witness may be asked whether a deed and mortgage had been given: the question not calling for their contents.</p> <p>Evidence: Admissibility of an unstamped agreement. Congress has no power to prescribe rules of evidence to the State Courts; and therefore the act of Congress which declares that certain instruments shall not be received as evidence in any Court, unless stamped as required by the act, is to be understood as applicable only to the Courts of the United States.</p> <p>Witness: Discredited by cross-examination. A witness may be asked on cross-examination whether he has ever been indicted and convicted of a criminal offense. The distinction between the questions — whether he had been indicted for a criminal offense, or whether he had been confined in the State prison, when asked of the witness himself, is unimportant. Wilbur v. Flood 16 Mich., liO cited and approved.</p>

Circuit. This was an action of assumpsit brought by Thomas Ellis against Joseph D. Maxson upon a promissory note; the defense to which, was that the plaintiff had agreed among other things, to cancel and surrender- the npte, in consideration that the defendant would sell and convey to the plaintiff a parcel of land in the State of Illinois.

Eaton, the plaintiff below, recovered a judgment against the Chicago and Milwaukee Salt Company, a corporation organized under the laws of Michigan ( Gomp. Laws, Chap. 68), on which execution was issued and returned unsatisfied.

This was an action of assumpsit upon a promissory note brought by a corporation plaintiff, whose name was stated in the commencement of the declaration to be — “ The West River National Bank of Jamaica, Vermont.” The note declared on was made by E. Thatcher, the defendant below, and was payable to the order of “L. N. Sprague, Ag’fc.” The defendant pleaded the general issue and gave notice that Sprague, the payee named in the note, was the agent of the Jamaica Leather…

One, of the township of Portage, to compel the Supervisor of the Township of Adams to levy certain taxes. In 1863 the School Inspectors of Portage had. organized the entire township into one graded and high school district, and at the annual meeting of the district in that year, a tax of $5,000 and the issue of bonds for a loan of $15,000, for the erection of school buildings, were authorized.

Harris brought an action of assumpsit, against Geiger & Hoyt, in the Wayne Circuit Court for a balance due to Mm under a special contract to serve them as their clerk or agent for one year, at the rate of $1,000 per annum. He commenced services under this contract on the 12th day of September, 1867, and on the 20th of March, following was discharged, as he alleges, without fault on his part.

On the 21st of July, 1869, the Singer Manufacturing Co. caused a capias to be 'issued out of the Circuit Court for the County of Hillsdale against George L. McAllister in an action of trespass on the case, for receiving as the agent of said plaintiffs, and fraudulently converting to his own use one hundred and thirty-eight dollars and ninety-two cents, whiGh came to his possession by. virtue of his employment as. such agent.

This was an action of assumpsit brought by William D. Box against Joseph D. Shipman before a Justice of the Peace for Calhoun County.

This was an action of assumpsit brought by Baber against Casey, before a Justice of the Peace for Saginaw County for the value of several pieces of engine and machinery, which were taken from plaintiff's possession in Saginaw County, the title to which he claimed through a chattel mortgage; and were carried away by the defendant, claiming title by virtue of a judgment and execution sale, under the Water Craft act of 1864, by which the wreck of the tug EL Johnson had been…

Appeal in Chancery from Washtenaw Circuit. Louis R. Buchoz, at a foreclosure sale under a decree in his favor, bid off the mortgaged premises at $2,000. The amount due on the decree, beside interest and costs, was $1,119 25, and the value of the property did not exceed this Bum.

Assumpsit for goods sold and delivered. Plea, general issue, with notice of set off and breach of warranty; and, puis darr. con. a judgment between the same parties in bar.

Dalrymple brought assumpsit against Sheehan in the Circuit Court for the County of Wayne, and declared on the common counts for money loaned to defendant, and expended in making repairs upon a vessel jointly owned by them.

Appeal in Chancery from' Saginaw Circuit. Upon a foreclosure sale - in this case the mortgaged premises were bid off by Henry C. Potter for §11,750. The Court refused to confirm the sale and made an order that the premises be again offered for sale, for the minimum sum of §16,000; and if no bidders should offer that sum, that the sale to Potter should stand confirmed. Potter appealed from the order.

Allen, the defendant in error, brought an action of assumpsit against Gooderich before a Justice of the Peace for Oakland County, and recovered a judgment. The case was carried by certiorari to the Circuit Court for the County of Oakland, where the judgment was affirmed. Gooderich., the defendant below, now brings the cause before this Court by writ of error.

Motion by A. II. Wilkinson and Gf. V. W. Lothrop to dismiss the bill of exceptions because not settled until after the expiration of the term at which the trial took place.

Appeal in Chancery from Saginaw Circuit. This was an in] unction bill against the City of Bast Saginaw and Charles V. Deland, City Marshal, to prevent the collection of a tax levied by the municipal authorities upon the real estate of the complainant.

<p>Guardian's sale of real estate: Order of Confirmation: Duty of purchasers. Guardian’s sales made under tlie provisions of Cliap. 102 Comp. Laws are to be conducted in the manner required by the provisions of Chap. 101; and the confirmation of the Probate Court of the Guardian’s report of the sale is necessary to its validity, and to authorize the conveyance by the guardian.</p> <p>A party claiming to be the highest bidder at a guardian’s sale, in order to entitle himself to the rights of a purchaser, must tender payment and performance within a reasonable time.</p> <p>Mandamus: To entitle a party to a mandamus he must show a clear legal right, and that he*has no other adequate remedy. A purchaser at a guardian sale will not be entitled to this writ, to enforce his rights as such, without a clear showing that he has done at the proper time, everything necessary to complete the purchase on his part.</p>

Motion to dismiss an appeal in Chancery. The appeal bond in this ease was approved by S. B. Hayaale, “Kecorder of the City of Corunna and ex officio Circuit Court Commissioner of Shiawassee County.” §§ 9 and 10 of Chap. 6, of the act to incorporate the City of Corunna were cited as conferring on the Recorder, the necessary authority.

Action on tbe case for damages occasioned by tbe expulsion of tbe plaintiff below, from the cars of tbe defendants, at a point between Chatham and Belle River in Canada. Plea, tbe general issue. A verdict was rendered for tbe plaintiff of $3,000; and tbe judgment entered thereon is brought into this court by writ of error. Tbe errors assigned are: 1.

The plaintiff in error was charged upon the information of the Prosecuting Attorney for Kent County, that he “with a certain piece of… Held: feloniously did beat, bruise and wound one John Shine, with intent, in so doing then and thereby feloniously, wilfully, and of his malice aforethought, to kill and murder the said John'Shine, contrary etc. ” And “ that the said John Hanna, and upon one John Shine, in the peace of God and of the People of the State of Michigan then…

Ejectment. The plaintiffs are the heirs at law of Francis P. Browning who died in November 1834; and they bring this action for a tract of land of which their ancestor died seized. The defendant claimed under a sale made by John Clark, the administrator of Browning, in the year 1836. It was not denied that the sale was regular under the general statutes regulating sales by administrators.

Case made from Wayne Circuit. This was an action of trespass brought in Justice’s court for trespass upon land. Plea, with notice that the title to land would come in question, was interposed, and the case certified to the Circuit Court under the statute. The declaration was in the usual form. The issue was tried by the Court without a jury.

<p>Meetings of School Inspectors: Notice: ^Adjom'nment. Ten days notice of the meetings of tlie Boards of School Inspectors must be given: (§2,554 Comp. L., amended by § Id, Laws of 1867, p. 75-5), and the notice must state the object of the meeting. No business inconsistent with the notice is lawful.</p> <p>Whether any adjournment is lawful except from day to day to conclude current business, quen/.</p>

<p>School Inspectors: Power to change School House sites : Notice: Notice of a meeting of the Board of School Inspectors to change a school house site is necessary. {Passage v. School Inspectors of Williamstown, supra p. 3S0.)</p> <p>The power of School Inspectors to change a school house site, upon the written request of a majority of qualified voters of the district, is limited to cases where the site has been fixed by the School Inspectors because the inhabitants were unable to agree upon a site.</p>

Case made from Kalamazoo County. This was an action brought into the Circuit Court for the County of Kalamazoo by appeal from the decision of the Commissioners appointed by the Probate Court for that county, to receive, examine and adjust all claims and damages against the estate of James F. Thompson deceased.

^Error to Wayne Circuit. This is an action on the case commenced by Augustus W. Newell against The Great Western Railway Company of Canada, in the Circuit Court for the County of Wayne, to recover damages for his eviction from the cars of the defendants, in Canada.

This cause was brought into the Circuit Court for the County of Kalamazoo by special appeal from the judgment of a Justice of the Peace.

John Napman was charged before the Recorder’s Court of the City of Detroit on the complaint of Patrick Keenan “that at the City of Detroit, aforesaid, on the seventeenth day of April, A. D. one thousand eight hundred and sixty-eight, within the corporate limits of said city, one John Napman, a duly licensed omnibus agent, on the arrival of railroad ears in the city of Detroit, did then and there unlawfully and wilfully approach within twenty feet of the depot, when said cars…

Ejectment: brought in tbe Circuit Court for tbe County of Wayne, by Edmund Hall, now defendant in error, against James W. Clark, now plaintiff in error.

Redfield, the plaintiff below, brought an action of assumpsit against the City of Detroit, for services rendered as the agent of the City, in receiving certain bounty bonds from the Treasurer of Wayne County, issued under the act of February 4, 1865, entitled “An act to provide for the payment of bounties to volunteers in the military and naval service of the United States, ” {Laws of 1865 p. 29.) and for performing the duties required by the act.

Mandamus. On the 27th day of April, 1869, the relator moved in this Court that the respondent be ordered to show cause why a peremptory mandamus should not issue to compel him to pay a State bounty of $100 to the relator, and offered the following affidavit: “State of Michigan, County of Wayne.

Mandamus: Oliver L. Spaulding, Secretary of .State, makes application for a writ of mandamus, to compel the State Insurance Company to submit their affairs to an examination, as provided by §26 of the act relative to the organization and powers of-fire and marine insurance companies transacting business within the State, approved April 3, 1869. Laws of 1869 p. 280.

Information: presented to the Circuit Court for the county of Calhoun by the prosecuting attorney of that county, charging M. Henry Roberts, the plaintiff in error, with an assault upon Charles E. Greble with intent to commit the crime of murder. The defendant was convicted on the trial and the case now comes before this Court upon the bill of exceptions settled and signed by the Circuit Judge.

This was an action of assumpsit upon a policy of insurance. Tire declaration purports to set out the contract according to its legal effect, and one of its averments is in the words following: “And it was further provided that if said policy was made and issued upon or referred to an application, survey, plan or description of the property therein insured, sucli application, survey, plan or description, should be considered a part of said contract and a warranty by the…

Case made from Wayne Circuit. This is an action of assumpsit upon a policy of insurance, issued by The Albany City Insurance Co. on the twenty-seventh day of April, in the year one thousand eight hundred and sixty-eight, upon the schooner Stanley L. Noble, to run from said date to the thirtieth day of November, then next, in the sum of two thousand dollars. The plaintiffs 'aver a total loss within the period for which the vessel was insured.

<p>Practice in the Supreme Court: Hearing in mandamus cases: Effect of return. An applicant for a mandamus, bringing the case to argument upon the respondent’s return to the order to show cause, is entitled to the benefit of all the admissions it contains; but he cannot insist upon facts alleged in the petition or the accompanying affidavits, which are not admitted.</p> <p>State Land Office: Yerbal negotiations for the purchase of land: Payments by drafts received as money by the Commissioner: Who may object. A person applying at the office of the Commissioner of the State Land Office to purchase primary school land, the price of which was four dollars an acre; on account of which, at the time of such application, he paid two dollars an acre; but was told that he could not have a certificate or patent until the full price was paid; has no right to rely on the verbal assurance of the clerk with whom he transacted the business, that his payment would secure to him the lands, if, on notice, he should secure or pay the balance.</p> <p>When two persons are contending for priority as applicants for the purchase of primary school lands at the office of the Commissioner, one has no right to object that the payment made by the other was in a draft on New York, it having been received by the Commissioner as money, and it not appearing that it was of less value than currency.</p>

<p>Charge to Jury. A charge to a jury should be expressed in such terms as will practically answer the object to be attained. It should be as direct, distinct and explicit as the circumstances will permit; faud as far as practicable in popular language; and it will be much less liable to misapprehension, and less difficult of application to the facts, when submitted complete and entire, upon all points requiring notice, than when made to consist of a series of isolated propositions of opposing counsel.</p> <p>Evidence in testamentary cases: Degree of proof: Burden of proof; Quality of proof. There is no special rule as to the amount of proof necessary to establish an affirmative in testamentary cases; a preponderance of proof is required. A request to charge — that if the jury found a fair balance of testimony in favor of the validity of the will they should find for the proponent — was entitled to consideration. It would,if given, have been in effect equivalent to an instruction that they must rest their verdict upon a preponderance of proof. To refuse such a request absolutely, without any instruction upon that point, would leave the jury to imply that they were not authorized to find the will well executed upon a balance of testimony supporting it; and therefore such refusal would he ertor.</p> <p>The burden of establishing the capacity to make a will is upon the proponent; he must ayer it, — Beaubien v. Cicotte, 8 Mich., 5, — and support it in the first instance, by some other evidence than the presumption of soundness of mind which the law concedes to parties to contracts, — Cooley ¿T. in Tajf v. JBosmer, Ik Mich., 81U-5 / — and this burden — of establishing testamentary capacity— remains with the proponent to the end of the trial. He must produce evidence sufficient to outweigh that opposed; the whole of which, whether presumptive or offered by either party, is for the consideration of the jury.</p> <p>A charge to the jury that “ All persons are in law either of sound mind or unsound mind. It the testator was not of sound mind, the law treats him as of unsound mind, and the testator is to he compared with himself and not with others in determining whether he was of sound mind or not; and — 111 That to make the testator competent, he must have sufficient active memory to recollect in his mind, without prompting the elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive tlieir obvious relations to each other, and to he able to form a rational judgment in regard to them, and that it is not sufficient in law that the testator be of memory wbon he makes his will to answer familiar and usual questions:” Meld, — to be unobjectionable, and quite as favorable to testamentary capacity as the passage on that subject in Beaubien v. Cicotte, 12 Mich*, U59, which is approved.</p> <p>Will: Execution: Attestation in testator's presence. The condition and position of the testator when his will is attested, in reference to the act of signing by the witnesses, and their locality when signing must be such that he has knowledge of what is going forward, and is mentally observant of the specific act is progress and,- — unless he is blind, — the signing of the witnesses must occur where the testator, as he is then circumstanced, may see them sign, if he choose to do so.</p>

<p>Forcible ent)y and deiarner: Description of premises. The description of “lands or tenements” required by §§ A,976, h,986 Comp. Laws, (amended Laws. of 1867 pp. 88, 89), providing for summary proceedings for the recovery of the possession of lands, must be sufficiently definite and intelligible to designate and identify the premises intended. The precision required should be measured by rules of pleading, rather than by those which govern contracts.</p>

<p>Appeal in Clianceny : Modification of decree. Where a bill was dismissed without prejudice to complainant’s right to file a new bill based on the facts set up and admitted in defendant’s answer; and it appearing from the proofs as shown by the testimony of defendant, who was sworn as a witness, that a ground for relief existed, which was only contingently admitted in the answer: Held, that the decree dismissing the bill should be so modified as to allow the complainant to amend his bill in accordance with the facts admitted by defendant’s proofs; and that, on such amendment, a decree ior the appropriate relief should be entered.</p>

<p>Case made from Lapeer Circuit.</p>