Volume 2 — Douglas's Michigan Reports

Case certified from St. Joseph Circuit Court. Moore was indicted for forgery at the March term, 1843, of the Circuit Court, and, being arrested and brought into court, plead not guilty to the indictment, and entered into a recognizance with one Harlan, as his surety, to appear at the next term of the court and abide the order thereof.

Case reserved from Macomb Circuit Court. The cause came before that court on certiorari to a justice of the peace, before whom the suit was brought by Webster & Carpenter, against Prentiss, to recover damages for his neglect to attend as a witness on the trial, before a justice’s court, of a cause wherein they were plaintiffs, and one Dryer was defendant.

Case certified from Berrien Circuit Court. Debt upon the official bond of A. B. Munger, late sheriff of Berrien county, in the penalty of $20,000, made by Munger and twenty-three others as his sureties, defendants in this suit, and in form joint and several. Plea, non est factum.

Appear from Chancery. (Vide S. C. reported 1 Walk. Ch. R. 206.) The bill in this case was filed by Norris to obtain an admeasurement of water, under a lease executed by him to one A. M. Hurd, and alleged that the defendants were joint owners, by assignment, of the entire leasehold interest.

Case reserved from Oakland Circuit Court. This was an action of assumpsit, founded upon the defendant’s guaranty of the performance, by one Tuel, of his contract to deliver to the plaintiff a specified number of sheep, at a place in Buffalo. The cause having been tried, and a verdict found for tbe plaintiff, the defendant moved in arrest of judgment for the reasons:— 1. That the declaration did not aver that the defendant’s guaranty was in writing. 2.

Case certified from Wayne Circuit Court. This was a proceeding by complaint under the provisions of the “act to provide for the collection of demands against boats and vessels,” S. L. 1839, p. 70.

Case reserved from Wayne Circuit Court. A capias ad respondendum, issued out of Wayne circuit court, in a suit wherein Bronson was plaintiff, and one Camp defendant, returnable at the November term, 1837, of said court, having been returned duly served, Newberry thereupon, on the 20th day of December, in the same year and term, joined Camp in executing a recognizance of special bail, whereby they acknowledged themselves to owe unto Bronson the sum of $3080, to be levied, &c.…

Case reserved from Berrien Circuit Court. Ejectment by Scales against Griffin to recover possession of a certain story and a half wooden dwelling house, 18 by 25 feet, in the village of Niles, together with the lot of ground 63 feet front, by 132 feet in depth, whereon said dwelling house stands. Plea, general issue.

(Vide Walk. Ch. R. 340.) The bill was filed by Rood to restrain a statutory foreclosure, and have the mortgage delivered up and cancelled. The case was in substance as follows: At the November term, 1888, of the Berrien Circuit Court, one Shurte was convicted, on three several indictments for larceriy, and sentenced, on one, to a year’s imprisonment and costs, and on each of the other two, to pay a fine of $500 (in all $1,000) and the costs of prosecution.

Case reserved from Oakland Circuit Court. Assumpsit upon a promissory note made by the defendant, and payable to the plaintiff. On the trial the defendant proved that the note was given for a balance due him on an exchange of horses with the plaintiff; and that the horses were driven up, examined, tried, the terms agreed upon, the exchange consummated, and the note made and delivered, on Sunday.

The proceedings in that court were under the provisions of eh. 1, p. 506 of the Revised Statutes of 1838, entitled “ Of proceedings against debtors by attachment.” The Mayor, &c. were plaintiffs, and Welles and others defendants. The writ of attachment by which the suit was commenced, was issued against the defendants as nonresident debtors, October 4, 1841, and returnable on the 11th of the same month.

Spalding was the plaintiff in the court below, and declared against Prentiss and Frost in an action of covenant broken.

Case reserved from Wayne Circuit Court. This suit was commenced by attachment under R. S. 1838, p. 506, ch, 1, issued June 12, 1843, and returnable at the following November term of the circuit court. The writ was duly returned served; and, at the third term thereafter, the defendant appeared and moved that the same be quashed, and that all the proceedings in the cause be set aside, for sundry alleged irregularities which sufficiently appear in the opinion of the court.

Case reserved from Wayne Circuit Court. A sufficient statement of the case appears in the opinion of the court delivered by

The cause came into that court on appeal from a justice of the peace. The action was covenant, brought by Anderson, to recover rent due on an agreement under seal, dated ICth June, 1838, whereby he agreed to lease to Logan certain premises for one year from the 1st June following; and Logan agreed to pay him one dollar a week by way of rent.

Assumpsit by the defendants in error against Kinzie, as endorser of a promissory note, made by one Jamison, dated at Chicago, July 22, 1837, and payable to Kinzie’s order, ninety days after date, at the Branch Bank of the Farmers and Mechanics’ Bank, at St. Joseph, Michigan. The declaration averred, in the usual form, the making of the note by Jamison; Kinzie’s endorsement and delivery of it to the plaintiffs below; presentment-for payment; non-payment, and notice thereof.

This was a proceeding under the statute of forcible entry and detain-er, (R. S. 1888, p. 490, ch. 5,†) and the act amendatory thereto, (S. L. 1840, p. 83,) instituted by Beers, to recover possession of certain premises leased by him to Falkner, and which the latter held Over, after the expiration of the term for which they were demised. On complaint filed, a summons was issued and duly served on Falkner, and also a venire, by virtue of which a jury was summoned in the cause.

12, in said township, such sum of money as the district may be entitled to by law, from the common school fund, and from the fund arising from the taxes of the township.

This was an action of assumpsit, brought by the Kalamazoo Mutual Insurance Company, as a corporation, upon the following instrument, executed by the defendants below, and commonly designated as a premium or deposite note : $32.04 Kalamazoo, Aug. 14,1840.

William A. Clark died intestate, leaving a widow, Jacintha, and heirs, and also property both real and personal.

Case reserved from Oakland Circuit Court. Spafford and Tileston obtained a judgment in the circuit court against Beach, on which a Ji. fa. was issued November 14, 1837 ; and, at the May term, 1838, the fi.fa. was returned levied upon real estate of the defendant, which had been advertised for sale, and remained unsold for want of bidders.

- Error, to Calhoun Circuit Court. Assumpsit. Bar-stow was the plaintiff below, and declared against Smith, Lewis and Thornton, as makers of a promissory note for' $1,000, dated April 15, 1841, and payable to him, with interest, on the first day of March, 1842, at the Farmers and Mechanics’ Bank of Michigan. Plea, the general issue.

<p>Upon an appeal from chancery, the jurisdiction of this court is confined to an examination of the errors found in the transcript; and the court cannot assume, as part of the case, facts not appearing in the transcript, though assumed by counsel in the argument, and though, in virtue of a parol admission, they were treated as a part of the case in the court below*</p>

Case reserved from Kalamazoo Circuit Court. This was an action of debt, brought by Willard to recover from Longstreet the penalty of $1000, for which R. S. 1838, p. 324, §5, provides that any sheriff, who sells real estate under execution, without giving notice of the sale in the manner required by the statute, shall be liable.

The object of the bill in this case was to remove a cloud upon the title of premises levied upon by virtue of an execution in favor of Buck, the complainant, against Benjamin Sherman. The cause was heard upon the bill, supplemental bill, answers of the defendants, and replications thereto.

This was a special action on the case brqught by Keyes against John and Francis Stout, before a justice of the peace.

(See Walk. Ch. R. 454.) The bill was filed to' foreclose a mortgage executed by the defendant, Britain, to the Detroit City Bank, June 20, 1839, and by Julius Eldred and others, receivers of the bank, appointed by the court of chancery, assigned to the complainant. Britain plead in bar that the mortgage was delivered to one Cullen Brown as an escrow and was never, in fact, delivered to the mortgagee by his authority.

Case reserved from Oakland Circuit Court. Replevin brought by Rockwell against Hubbell for one yoke of oxen.

Ejectment by Latimer and Randall against Lovelt. The plaintiffs claimed as the grantees of one Hoeg. The only evidence of Hoeg’s title which they adduced on the trial, was a deed of the premises, executed to him by the treasurer of Lenawee county, in consummation of a sale of the same for taxes. It appeared from the recitals in the deed, that the sale was made March 3, 1836, for taxes assessed for the year 1832.

Case reserved from Wayne Circuit Court. This was an action of assumpsit, brought by Atwood against Gillett and Desnoyers, upon the- following instrument: “This may certify that there is due S. F. Atwood on settlement of accounts, thirteen hundred and ten 18-100 dollars.

Hicks, as endorsee, brought assumpsit against Lathrop, as maker, of a promissory note; but omitted to describe the note in the declaration, as containing words of negotiability. Lathrop plead the general issue. The cause was noticed for trial at the May term, 1844, of the circuit court.

Motion, by the defendant, for a new trial, reserved from Berrien circuit court. The facts are fully stated in the opinion.

Case reserved from Wayne District Court. This was: an indictment for obstructing a highway, which-was described as commonly called “ Lane to Burying Ground, or “Street leading to Burying Ground,” leading from Jefferson Avenue in the city of Detroit, and thence passing By a certain place-in said city, usually called the “Old Burying Ground,”' to. tbe Fort Gratiot road, in said city. The cause was tried before the Hon. B. F. H. Withered,.

<p>Decrees and orders, final and interlocutory, defined, and the distinction between them stated and explained.</p> <p>Under R. S. 1838, p. 379, §§ 121, 122, no appeal lies to this court from an order of the Chancellor denying a motion for the dissolution of a preliminary injunction, heard on answer to a part, and demurrer to the residue of the bill, before the time for filing replication had expired; even though the motion was founded, in part, upon want of equity in the bill, and, in denying it, the Chancellor gave his opinion upon the merits of the controversy between the parties; such order being interlocutory merely, and not a decree or final order within the meaning of the statute.*</p>

<p>Motion to dismiss an appeal from chancery. The case sufficiently appears from the opinion of the court.</p>

The bill in this case was filed by Benedict, to foreclose a mortgage executed by Thompson, October 10, 1837. In August, 1842, the chancellor made a decree requiring the mortgaged premises to be appraised, set off, and conveyed to the complainant, by and under direction of a master, pursuant to the appraisal law of February 17, 1842 (S. L. 1842, p. 136).

Case reserved from Michilimacinac Circuit Court. Ejectment. The suit was commenced in July, 1840.

For a report of the case in that court, see Walk. Ch. R. 471. In November, 1838, the complainants recovered a judgment, upon bond and warrant of attorney dated the 27th day of June previous, against Moses B. and William Savage, as partners, for $1852.67 damages, and $21 costs, on which an execution was issued and returned unsatisfied.

B. against whom D. had recovered a judgment in the circuit court, removed the cause into this court by writ of error: soon afterwards he applied for and obtained his discharge under the bankrupt law of 1841, D. proving the judgment as a claim against his estate in bankruptcy.

^/?Jase reserved from the Wayne Circuit Court. This /was an action of trespass for demolishing a dwelling house in the city of Detroit, owned and occupied by tbe plaintiff, Elizabeth Welch.

For a report of the case in that court see Walk. Ch. R. 501, where the pleadings and evidence are given somewhat at length.

<p>In pleading it is not necessary for a party to allege any more than will constitute, prima facie, a sufficient cause of action or defence; all beyond this is surplusage.</p> <p>To an information in the nature of a quo warranto requiring a corporation to answer by what warrant it claimed to have, use and enjoy certain corporate powers, &c-which it was therein alleged to have usurped, a plea setting forth the charter of the corporation, by which the powers claimed were conferred, in presenti, is a primes facie defence; for the commencement of a legal existence being thus shown, it will be presumed that the corporation continued to exist, and to perform its duties, until the contrary is alleged.</p> <p>And where, in addition to this, the plea contained allegations intended to show, either a continued existence of the corporation down to the filing of the information, or that the state was estopped from insisting upon forfeiture of the corporate franchises for causes which arose prior to a certain period, it was held, that these allegations were surplusage, and, on motion, they were ordered tobe stricken, out.</p>

This was a proceeding under the statute of forcible entry and detainer. R. S. 1838, p. 490, Ch. 5. Woodward made complaint before the justices, alledging that, on December 6, 1845, he was the owner, and in the lawful and peaceable possession of a certain warehouse and lot in Tecumseh, and that on that day Latimer and Freese made an unlawful and forcible entry into said ware-house, and detained the same with strong hand from the possession of the complainant.

Certiorari, brought by Davis, to reverse a judgment which Ingersoll had recovered against him, in proceedings before three justices of the peace of Wayne county, under the statute of forcible entry and detainer, R. S. 1838, p. 490, ch. 5. The cause was argued and determined at the January Term, 1840, of this court.

Certiorari, brought by Caswell, to reverse a judgment which Ward had reco-. vered against him in proceedings before two justices of the peace of St. Clair county, under the statutes of forcible entry and detainer. R, S. 1838, p. 490, ch. 5, and S. L. 1840, p. 83, The cause was argued and determined at the January Term, 1842, of this court.

Certiorari, brought by Royce, to reverse a judgment which Bradburn had recovered against him in proceedings before two justices of the peace of Washtenaw county, under the statutes of forcible entry and detainer. R. S. 1838, p. 490, ch. 5 ; S. L. 1840, p. 83. The cause was heard and determined at the January Term, 1842, oí this court.

Case reserved from Washtenaw Circuit Court. Assumpsit upon a promissory note, made by William R. Thompson and Daniel B. Brown, payable to the order of James Kingsley, the defendant, and by him endorsed to the plaintiffs.

Case reserved from Wayne Circuit Court. This was a special action on the case, brought by Gordon against Farrer and others, inspectors of election for the Second Ward, in the city of Detroit, for refusing to receive the plaintiffs vote, at an election for the purpose of choosinga representative in congress for the first congressional district of Michigan, and certain other officers, held Nov. 4, 1844. — Plea not guilty.

<p>Grand jurors drawn, and appearing upon summons, are presumed to be legally qualified and properly returned, and the circuit court will not interfere to set aside the panel, or any part of it, unless upon cause shown by a person having a right to question its legality.</p> <p>The grand jury is formed under the direction of the court; and a challenge, either to the array or to the poll, can only be made by a person under prosecution, and whose case is about to be br'oiight before the jury.</p> <p>One who makes such challenge must show to the court that he is so under prosecution.</p>

<p>Error to Wayne District Court. The case is fully stated in the opinion.</p>

Case reserved from Wayne Circuit Court. Assumpsit, by Spies, as endorsee, against Newberry, as endorser, of a foreign bill of exchange. Plea, the general issue.

<p>Where an infant prosecutes by prochcin amy, the prochcin amy must be regularly appointed by the court; and if the suit is commenced by declaration, without such appointment, it will be dismissed on motion.</p> <p>The proper practice in our courts, where an infant sues by prochcin amy, indicated.</p>

Ejectment, brought by Thomas Palmer and three others, against Thomas J. Oakley, to recover lot number 6, in section number 4, in the city of Detroit. — Plea the general issue. The cause was tried at the November terra, 1845, of the circuit court, before the Hon. D. Goodwin, Presiding Judge. Both parties derived title from John Palmer, who died seized of the premises in 1S26.

This was an action of ejectment, tried in the Lenawee Circuit Court, at the October Term, 1845, before the Hon. A. Felch, Presiding Judge.- Both parties derived title through one Edward Bissell. Greenvault, the plaintiff, claimed through certain proceedings in attachment, in said Lenawee circuit court, instituted against Bissell, as an absent debtor, by one Caleb N. Ormsby.

Appeal of Rue High from the decree of the Probate Court of Macomb county, admitting to probate a certain instrument hereinafter set forth, as the last will and testament of Nathaniel High, deceased. The instrument was presented for probate by Joseph C. High, the principal legatee therein named. The appellant was the father of the deceased.

The act of the legislative council of the late territory of Michigan, to incorporate “ The President, Directors and Company of the Bank of River Raisin,” took effect on the 29th of June, 1832, and conferred upon the persons who should become stockholders of the bank, corporate capaciiy, with the usual powers incident to banking incorporations.