Volume 2 — Michigan Reports

Case in Chancery, reserved from Wayne Circuit Court. Gabriel Chene, Senior, of Wayne County, on the 26th day of November, A.. D. 1829, made his will, and soon afterwards died.

Case reserved from Wayne County > Court. Assumpsit for the use and occupation of real estate. The mother of Margaret Uhl, the ward, was married on 4th July, 1843, to Mathias Kemph, who was her second husband, Margaret being her daughter by a former husband. On 14th August, 1844, she acquired by grant, and became seized in fee simple, of the premises for the use and occupation of which the action was brought.

<p>Bill to foreclose a mortgage, executed 1st of ¡March, 1836. The bill stated the condition of the mortgage to be for the payment of $400, as follows: §275 on or before the 1st of May next, and §125 on or before the 1st of May, 1837, with interest from 1st of May, 1836. The condition of the mortgage was, that if H. should pay to J. §400, as stipulated in a certain bond executed by II. to J., dated 15th Dec., 1835, that is to say, the said H. has obligated himself to pay §275 on or before 1st of May, next, and §125 on or before the 1st of May, 1837, with interest from and after the 1st of May next, then the deed to be void. H., by his answer, admitted the execution of the mortgage, but denied that it contained the condition stated in the hill, and then set forth the condition as above stated, and also two bonds, dated 15fch Dec., 1835, each referring to the other, by which it appeared J. agreed to deed to H. a farm for §3,000, to be paid for by H.’s deeding to him certain village lots, and by erecting on one of the village lots a dwelling house, to be finished as J. might direct!* Bor the village lots and house, J. was to pay §2,600; but as the finishing of the house according to J.’s directions, might exceed the estimate, the house was, in that case, to be appraised, if they could not agree upon its value; and the balance remaining due from H., was to be paid by him on or before the 1st day of May, 1837, in work, or otherwise, as the partiesmight agree, and to be secured by II.’s giving a mortgage on the farm. Held, that the reference in the condition of the mortgage to the bond of H., was intended by way of recital, to show that H. had admitted the balance due from him on the land was §400, and that the mortgage was payable in money, and not in work, or otherwise, as the parties might agree. Held, also, that there was no variance between the case made by the bill and •that admitted by the answer.</p>

<p>Where a member of a Mining Company, wlio was also one of the managers of the Company, employed the plaintiff to work for the Company, it is immaterial whether his powers as manager were general, or special and limited; if the plaintiff had no notice at the time of any abridgement of his powers by the articles of co-partnership, every member of the company, in legal contemplation, without any special powers being conferred upon him by the articles of co-partnership, is not only a principal, but a general agent for all the co-partners in the transaction of the company business.</p> <p>A person who was a member of a Mining Company, and who had assigned his stock in the company to a third person, is liable as a co-partner for debts subsequently contracted by the company with a person who had no notice of his withdrawal from the company.</p>

Case reserved from Macomb County Court. The only question was, whether the plaintiffs could sustain an action on a promissory note made by the firm of Eastman, Williams' & Co., against James Williams and Sexton H. Eastman, two of the partners, after the death of a third partner and the allowance of the claims against his estate by the commissioners, without first showing they had exhausted their remedy against the estate of the deceased partner.

Case reserved from Ingham Circuit Court. Replevin. At the October Term of the Circuit Court, iu 1848, defendant made a motion for judgment, as in case of nonsuit, without affidavit or other evidence in support of his motion, on the ground that the case had not been noticed for trial by plaintiff. The motion was granted, and defendant, having elected to take judgment for the value of the property replevied, its value ■and defendant’s damages were assessed by a Jury.

This was an action of assumpsit, brought by the defendant in error, in the Wayne County Court, against the plaintifis in error, and others impleaded with them.

<p>B. convoyed a piece of ground to L., Bishop of the diocese of Detroit, and bis successors in office, in trust for the erection of a church thereon to be used as a place of religious worship, and for the spiritual use, benefit and behoof of the German Roman Catholic Church Congregation, in the city of Detroit, according to the rites and ceremonies of said Roman Catholic Church, and for other trusts therein expressed. The deed also provided that in the event of a vacancy in the office of bishop, happening between the death of Bishop L. and the appointment of his successor, the premises should vest, during such vacancy, in the Archbishop of the Roman Catholic Church of which the diocese should be a suffragan. Trustees of the chinch were afterwards elected under chapter 52, R. S. In a controversy between the officiating priest and the trustees, as to which had the right to rent the slips*</p> <p>.Held: 1st, That under the deed of trust, and the constitution, laws and usages for the government of the Roman Catholic Church, by which the administration of the temporalities of the church is vested in the parish priest, the right to rent the slips belonged to th© .priest and not to the trustees.</p> <p>2d. That the provisions of the statute are not mandatory but permissive, and that no church can became incorporated under it, provided the power conferred by it upon the corporators is, by the constitution, laws and usages of the churches, lodged in another body, but the person or persons and his or their successors, in whom such power is vested by the constitution, laws and usages of the church, may become a body corporate by complying with the twenty-third section of the chapter.</p>

Case reserved from Washtenaw Circuit Court. The only question presented by tbe case was, whether the following instrument, and ten others in all respects similar, except in their amounts and times of payment, were promissory notes, and could be declared on, and given in evidence as such: $60. Plymouth, Jan’y 11,1841. Two years from date, for value received, we or either of ns promise to pay E. Woodruff or bearer, sixty dollars, with use.

Case reserved from Livingston County Court. Attachment. The affidavit of the plaintiff, on which the attachment issued, stated that defendant was indebted to him in the sum of $237, and that defendant was not a resident of the State. The writ was issued on 10th of April,. 1849, and was made returnable on the 23d of the same month. Under it, real estate appraised at $10,000, was attached.

<p>Section 14 of the general plank road law, approved March 13fch, 1848, provides among other things, that “ whenever any plank road company may wish to use any part oí a public highway or street, for the construction of their plank road over the some, such company ehall apply to the supervisor and commissioners of highways of the township, or common council of any incorporated city, or the president and trustees of auy incorporated village, as the case may be, in which said highway or street is situated, for the purchase or release of the same; and it shall be the duty of such supervisor and commissioners, or common council of any incorporated city, or the president and trustees of any incorporated village, as the case may be, to examine, at the expense of the company, so much of auy such highway or street as may be wanted as aforesaid, by such company; and if in the opinion of a majority of such supervisor and commissioners, or common council of any incorporated city, or the president and trustees of any incorporated village, as the case may be, the public interest would not be prejudiced by granting the application of such company, said supervisor and commissioners, or a majority of them, or common council of any incorporated city, or the president and trustees of any incorporated village, as the case may be, may in writing, signed by them, grant to such company aright to enter upon, take, and use such highway or street, for the purpose of the construction, maintenance, and use of a plank road thereon, under the provisions of the charter of such company; and upon filing such grant in the office of the township clerk of such township, the said company may at once enter upon, take, and use such highway or street, for all the purposes aforesaid/» Sec. ' ‘</p> <p>See. 4 of tlie act of incorporation of the defendants, (Sess. L. 1848, 882,) provides that as soon as said company shall be duly organized, the directors may enter upon, and take possession of so much of the Fort Gratiot road, so called, as lies between the city of Detroit and township of Erin, in Macomb county, and proceed to construct and maintain thereon a plank road.</p> <p>Sec. (J of said act of incorporation provides that the provisions of the general plank road law first named, shall be deemed a part of the said act of incorporation. Held, that section 14 of said general law is restricted by the said act of incorporation of the defendants, and that by their charter the defendants may use that part of said Fort Gratiot road specified in section 4 of their charter, without any grant or release from the supervisor and commissioners of the township through which that part of said Fort Gratiot road runs; and that the words “public highways,” as used in section 14 of the general Jaw, are restricted in such a manner by the act of incorporation of the defendants, as not to include highways distinguished from other highways by having been constructed by the general government.</p> <p>It is a cardinal rule in the construction of statutes, that effect is to be given, if possible, to every clause and sentence, and it is the duty of Courts, so far as practicable, to reconcile the different provisions of a statute so as to make the whole of it consistent and harmonious; and where this is impossible, to give effect to what was manifestly the intention of the Legislature.</p>

The bill in this case was filed by the complainants to foreclose a certain mortgage, and is in the usual form, setting out and alleging the execution and delivery by Davis, one of the defendants, of four notes and a bond for the payment of some $2,100; also the execution and delivery of a certain mortgage, as security for the payment thereof, by both defendants, &e. The complainants further allege, that fifteen hundred dolíais of the amount specified, was to secure a debt…

<p>Error to Wayne Circuit Court.</p>

This was an action of trover, brought by the defendant in error against the plaintiff in error, in the Lenawee County Court, to recover the value of a quantity of wheat. The cause was tried in that Court without a jury, and a judgment rendered in favor of the defendant therein, for his costs of suit.

Appeal by complainant from a decree of the Court of Chancery dismissing his bill. The principal question in the case was one of fact, regarding the design and object of a deed executed by complainant to defendant, on which there was conflicting testimony, and a number of witnesses had been examined by each party.

Case reserved from Jackson Circuit Court. Tbe declaration which was in debt, contained four counts.

This was an action brought by the plaintiffs in error, to recover of the defendant in error a penalty, under Chapter 41, R. S., for selling spirituous liquor contrary to law. The only question in the cause was, whether the action was properly brought in the name of the plaintiffs in error.

Case reserved from Washtenaw Circuit Court in Equity. A motion was made to dissolve an injunction on affidavits, instead of on answer. The motion was opposed on the ground that the injunction could not be dissolved on affidavits; and by request of counsel, the question raised by the objection was reserved for the opinion of this Court.

Mosher, the defendant in error, sued Daniels, the plaintiff in error, in . 1845, before a justice of the peace in the county of Jackson. The declaration was in assumpsit, and the first count was upon a contract entered into between the parties in 1843, by which Mosher agreed to clear twenty acres of land for Daniels, in a particular manner, and with-' in a certain time; in consideration of which, Daniels was to pay Mosher one hundred dollars.

<p>A township board has no power to review the proceedings of the commissioners of highways, in laying out and establishing a road, except on an appeal to them under the statute; nor to review the proceedings of the appraisers, except so far as to see that they are not void for want of jurisdiction. Mere irregularities which would not render the proceedings abse* lutely void, questions involving the merits of the controversy before the commissioners or appraisers, and fraud or misconduct in the parties or officers, cannot be inquired iuto by the township board upon an application for an order on the treasurer for the amount of damages assessed.</p> <p>Section % chapter 25, R. S., 133, makes it the duty of the township clerk, on receiving an order from the commissioners of highways laying out a road, forthwith to post a copy of such order on the outer door of the house or building where the township meeting it? usually held, or if there be no such house or building, then in one of the most public places in the township. "Where it appeared a copy of the order was posted up on an inside door of a tavern, which was one of the two places in the township at which the township* meetingwas held alternately, it was held,.</p> <p>1st. That there was no house or building within the contemplation of the statute, where the township meeting was usually held.</p> <p>2d. That the Court would'presumo, in the absence of any showing to the contrary, that the tavern whero the notice was posted, was one of the most public places in the township.</p> <p>A township is not liable for interest on damages appraised for laying out a highway.</p> <p>■On a motion for a peremptory mandamus, the Court will not allow the relator to amend his order on the respondent to show cause, where it is too broad and asks more than he is entitled to, so as to include that only to which he is entitled.</p> <p>An order to show causo why a peremptory mandamus should not issue, has in this Court been uniformly substituted for an alternative mandamus.</p> <p>An alternative mandamus is answered by a return, which is in the nature, and perforins tho duty of a plea; whilo the ordor to show cause, like all other orders of a similar character, is answered by affidavits.</p>

Clair; In Chancery. The bill in this case was filed to set aside a conveyance of premises bought by the appellant at tax sales, and to compel the conveyance thereof to the complainants.

Motion to dismiss an appeal from tho Oakland Circuit Court, in Chancery, because the same was not taken within the forty days prescribed by statute.

<p>Case reserved from Wayne Circuit Court in Chancery. The facte appear in the opinion of the Court.</p>

Clair; In Chancery. Bill for specific performance. On the second day of April, 1827, Thomas S. Knapp purchased of one Henry Jermain, by warranty deed,' a tract of land containing fifty-three acres at the confluence of the Black and St. Clair rivers; being the same premises that were claimed by said Jermain as husband to Mary Racine Jermain, sole heir at law of John Baptiste Racine, deceased, whose claim to the premises had been proved before the board of United States Land…

Case reserved from Oakland Circuit Court. Tbe ease was made by tbe parties with a view of settling their legal and equitable rights to the premises in dispute, and at their request reserved by the Circuit Court.

<p>Error to Lenawee Circuit Court, into which Court the cause had been brought by certiorari from the County Court. The facts are fully stated in the opinion.</p>

<p>The grantor of lands has a lien upon the estate sold, for the purchase money; hut this lien is waived where the note or obligation of a third person is taken of the vendee for the purchase money.</p> <p>The presumption in such case is that the note or obligation was taken in payment of the consideration money, and ¿ot as security for it, and the grantor’s lien is consequently discharged.</p> <p>This lien of the grantor exists, generally speaking, and the burthen of proof is on the purchaser to establish that in the particular case it has been intentionally displaced by consent of parties.</p> <p>A grantor who has received the note of a third person upon the representations of the purchaser that the note is good, which turn out afterwards to bo false, and who retains the note until it is outlawed without offering to restore it to the purchaser, cannot ask the aid of a Court of Equity to cancel the sale.</p> <p>It is incumbent upon the party alleging fraudin such a case, to institute proceedings to cancel the sale on discovering the fraud, and not to wait until the purchaser has made large outlays in improvements on the lands so purchased.</p>

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

Case reserved from Wayne County Court. An action of assumpsit was brought by the plaintiffs in this case, in the County Court, on a promissory note, signed by the defendants, in their partnership name of “Clark & Co.” Both of the defendants appeared, and pleaded severally the general issue, and also severally gave notice, &e., of the rendition of a judgment in the Court of Common Pleas, of Cuyahoga County, Ohio, against defendant Brown, on the same note, &c. By a written…

This is an action brought hy the plaintiff against the defendants, in the Wayne County Court, to recover the value of certain horses killed by a locomotive and train of cars on the Railroad.

<p>Appeal fi’om Wayne Circuit Court in, Chancery.</p>

Wales in March, 1849, sued Lyon in the County Court iu debt. The declaration is on a chattel mortgage executed hy the defendant on the 29th day of February, 1840, to secure the payment of $10,000 and interest hy instalments, as follows: $1,000 and interest on the 1st day of September, 1840; $1,000 and interest on the 1st day of March, 1841; $2,000 and interest on the 1st day of March, 1842; $2,000 and • interest on the 1st days of March, 1843, 1844 and 1845.

Case reserved from Lenawee Circuit Court, in Chancery.- The question presented by the case was whether the act incorporating The Palmyra & Jacksonburg Railroad Company was constitutional, there being, on its final passage in the House of Representatives, but thirty-three members present, thirty of whom voted for the bill and three against it, — the whole number of members elected to the house being fifty, and the constitution providing, “ The Legislature shall pass no act of…

Replevin. On the trial the plaintiff under objection, was permitted to give evidence of the value of the services of his attorney and counsel in attending to the suit, as a part of the damages he had a right to recover under the provision of the statute, by reason of the unlawful detention of the property.

Case reserved from Wayne Circuit Courts in Chancery. The bill in this cause was filed to obtaiu a constructiou of the will of Francis Rivard, deceased. The will was not dated, hut was said to have been executed in 1831. The testator died in 1841, and Ms will was proved in 1842.

This was an application for a peremptory mandamus, to compel the State Treasurer to pay to the relator the sum of $97 and interest; being the amount of a certificate hearing date the 28th day of June, 1851, drawn and signed by D. P. Bushnell, Clerk of the House of Representatives, and countersigned by himself, as Speaker of said House, ■certifying that there was then due the said relator, for services as a member of the Legislature, the said sum of $97.

The complainant and appellee, a judgment creditor of two of the defendants and appellants, O. and J. P. Loud, filed his hill to set aside as fraudulent, a voluntary assignment, purporting to he general, and with preferences, made by the two Louds who were co-partners, to the other defendants and appellants, Johnson and Higby, so far as said assignment operated as a conveyance of real estate in the counties of Jackson and Eaton.

Clair Circuit Court. Au assessment roll was taken by the plaintiffs in error from the possession of the defendant in error, who was supervisor of the township of China, St. Clair county: Plaintiffs in error being highway commissioners of said township, and claiming the right to take and keep the roll until they had completed the assessment of the highway taxes of their township, as it was their duty by law to do.

<p>An administrator cannot become tlic purchaser of the estate or effects of his intestate.</p> <p>The rule that an agent authorized to sell property for the best price, cannot become the purchaser himself, whether the sale be public or private, or the agent purchase in his own name or otherwise, hold to apply to administrators.</p> <p>K. B., administrator, and E. B., administratrix, exe.cuted to E. B., the administrator, a deed of premises owned by the intestate in his lifetime. The deed was declared void, although the sale and conveyance was made 'under an order of the Judge of Probate. Held, also, that in such cases the question, of intent ox fairness could not be considered.</p>

<p>Under section 21, chapter 72, R. S., which requires that in cases of appoals from tho decision of commissioners to examine and adjust claims against deceased porsons, the claimant, before such appeal shall be allowed, shall, giye a bond with sufficient sureties to bo approved by the Judge of Probate and filed in his office, it was held that a bond executed and filed by a stranger conditioned that the appellant should prosecute, &c., was not a compliance with the statute and was insufficient.</p> <p>Although the Judge of Probate in allowing an appeal and passing upon the sufficiency of suroties acts judicially, yet until such bond is filed as tho statute requires, no foundation is laid for the exercise of judicial discretion and his acts are void.</p>

<p>Section 102, chapter 102, K. S. authorizing an examination of parties to suits in County Courts and Justices’ Courts, is only applicable to actions ex contractu and not to actions ex delicto.</p> <p>In an action for false imprisonment, the defendant being called upon to testify, declined answering on the ground that the answer might criminate him, or furnish a link in the chain of evidence which might tend to criminate. The priidlege thus claimed ivas allowed by the Court. In summing up, the plaintiff’s counsel commented upon the refusal of the defendant to testify, as furnishing evidence of his guilt to bo considered by the jury. Whereupon defendant’s counsel asked the Court to restrain the counseZ. The Court declined to interfere, observing “ tbat the refusal of the defendant to answer the question propounded to him on the ground stated, was not evidence against him in the cause, yet that it was impossible to prevent the jury from having the whole case and knowing what was done in. open Court in the course of the trial before them, or to prevent counsel from commenting upon it.” It was held that although the ruling of the Court excluding any inference of guilt from the refusal of the defendant to answer the question was correct, yet that the suggestion made by the Court upon such ruling, in tho hearing of the jury, the effect of which might deprive the defendant of the benefit of the rule, was erroneous.</p>

<p>This was an action brought by the plaintiff in the Wayne County Court, upon a bond executed by the defendants under the provisions contained in chapter 122, title 24 of the Revised Statutes of 1846, and entitled, “ Of proceedings for the collection of demands against ships) boats and other vessels.”</p> <p>. The hody of the'declaration is in these words: “For that whereas, the said defendants heretofore, to wit: on the 19th day of October,. 1850, by their certain bond or writing obligatory sealed with their seals, the date whereof is a certain day and year therein expressed, to wit: the day and year aforesaid, acknowledged themselves to be held and firmly bound to the plaintiff in the sum of two thousand two hundred and fifty dollars, to he paid to the plaintiff; which said writing obligatory was and is subject to a certain condition thereunder written, wherein after reciting to the effect following, to wit: that whereas, on complaint made in writing on oath by the said Wesley Traesdale, on the 19th day of October, 1850, to E. Smith Lee, County Judge of the-county of Wayne, setting forth that he had a claim against the steamboat Empire State, amounting to the sum of $1,124 80, he, the said Judge, on that issued his warrant to the sheriff of the county of Wayne, , commanding him to attach, seize and safely keep .said steamboat, her tackle, apparel and furniture to answer said complaint; by virtue whereof the said sheriff had seized and taken the said steamboat: it was conditioned, that if the said obligors should pay all such claims and demands as had been exhibited to said Judge, which should .be established to have been subsisting liens upon said steamboat, pursuant to the provisions of chapter 122, of the Revised Statutes of the State of Michigan of 1846, at the time of the exhibiting the same respectively, then the said obligation to be void, otherwise to be of full force, as by said writing obligatory and the condition thereof will more fully appear.</p> <p>“And the plaintiff in fact saith that he has a demand upon and against the steamboat Empire State, for timber and lumber and other materials furnished for and in and about the construction of said steamboat, and that said demand amounted, on said 19th day of October, 1850, to eleven hundred and twenty-four dollars and eighty cents, and was a valid and subsisting claim and lien on said boat, under and according to the provisions of chapter 122 of the Revised Statutes of-Michigan of 1846,, at the time of the exhibition of the said complaint, to wit: on the day and year last aforesaid; which said demand is the same claim and demand which was exhibited to said E. S. Lee, Judge as aforesaid, and which is mentioned in said bond, and that the said steamboat Empire State, at the time when the said claim or demand was so exhibited to the said E. Smith Lee, Judge as aforesaid, to wit: on the said 19th day of October, 1850, was a boat or vessel used in navigating the waters of the State of Michigan, and that the said claim or demand and all the items thereof were debts contracted by Augustus Walker, the owner of said boat or vessel, and on account of timber and lumber and other materials furnished for and used in and about the construction, building and equipment of said boat or vessel, previous to the time when said claim was exhibited to said Judge as aforesaid. And the saidplairicffi damns, &c.</p> <p>“ Yet the said jdaintiff in fact saith, that the defendants have not paid, <fec. By means of which, <fec.” (Concluding in the usual form.)</p> <p>The defendants demurred, assigning for cause:</p> <p>1st. That the declaration does not show that the plaintiff ever -made the- application in writing, in manner and form as required by sections two and three of chapter 122 of the Revised Statutes.</p> <p>2d. That it does not appear that the said steamboat was within the jurisdiction of this Court, to wit: in the county of Wayne, when the application was made to E. Smith Lee, County Judge.</p> <p>The plaintiff joined in demurrer, and the County. Judge reserved the questions arising on the demurrer for the opinion of this Court.</p>

<p>In an information in the nature of a quo warranto, charging the defendant with usurping an office, and requiring him to show his right thereto, and containing, in addition to the usuot averments, an allegation that the relator hy virtue and warrant of due and regular election is in law and in right entitled, to have, hold and exercise said office, it is not necessary for the relator to set forth his title to the office.</p>

<p>In order that a lien may attach trader the provisions of Chapter T2S, R. S., of proceedings for the collection of demands against ships, boats, and vessels, for the breach of a contract of affreightment,'the contract must arise in this State. The lien does not attach, where there is a breach of a contract, which although to be performed within this State, was made in another State.</p>

<p>£q trover against a sheriff, by parties claiming the proporfcy levied on, by virtue of a chattel mortgage, a judgment in favor of the party for whom the sheriff levied on the property claimed, must be alleged in pleading, and proved, to authorize the introduction of proof showing the chattel mortgage fraudulent.</p> <p>Xn such case although the question of fraud was litigated in the Court below, yet as the notico appended to the plea did not aver a judgment, it will not be presumed one was proved.</p>

<p>In' appeal cases, where a party to bo served with a notice is not a resident of the County, and appeared on the trial below, by agent or attorney, service of the notice should be on such , agent or attorney. Where there is no agent or attorney in the case, notice should be sont by mail to the party himself, if his residence can be ascertained.</p>

The plaintiff brought his action in the Court below, upon an award of arbitrators.

<p>Where m employee is exorcising a distinct and independent employment, and is not under the immediate control, direction, or supervision of the employer, the latter is not responsible-for the negligence or carelessness of the employee.</p> <p>Thus, where a public licensed drayman was employed to haul a quantity of salt from a war©' house, and deliver at the store of the employer at so much per barrel, and while in the act of delivering the salt, one of the barrels, through the carelessness of tbe drayman, rolled against and injured a person passing on the side-walk, it was held the employer was not ' liable for the injury.</p>

<p>In the absence of any statutory provisions as to judgment records, the files and journal entries of the Court are to be taken and deemed a substitute "for the record, and are competent evidence to provea judgment, notonly in the same, but all other Courts of this State.</p> <p>Plaintiff brought an action against a sheriff for taking certain personal property, which on. final hearing was determined against plaintiff. After the sheriff had sold the property, plaintiff brought his action to recover the same, against the purchaser at the sheriff’s sale#</p> <p>Held, that the suit against the sheriff was a bar to the action against the purchaser.</p>

<p>The assignor of a note and mortgage covenanted with assignee that in case assignee should fully prosecute the note to judgment and foreclose the mortgage, and should not collect a specified sum, with costs, &c., then the assignor would pay said sum and costs, and if upon execution or foreclosure, the mortgaged land or other real estate should be taken for sale or set off, then the assignor would pay said sum. Held, in a suit upon said covenant, that assignor could not set up in defence a mere irregularity in the foreclosure.</p> <p>The assignee having foreclosed in chancery and taken decree for the sum due, and for execution for any deficiency after sale of mortgaged premises, this was held a sufficient compliance with the condition of the covenant, that the note should be prosecuted to judgment.</p> <p>Before the assignee could sue upon the covenant in the assignment, he must exhaust his remedy against tho mortgagor by issuing execution to the county of his residence.</p>

<p>Appeal from Wayne Circuit .Court, in Cbaneery.</p>

<p>Appeal from the Washtenaw Circuit Court, in Chancery.</p>

Case reserved by the County Judge of Lenawee County, upon motion to set aside a non-suit, and for a new trial. Tliis ease was brought in tbe Lenawee County Court, upon a promissory note given by tbe defendant to tbe Marshall Mutual Insurance Company,, in consideration of Policy No. 641, issued by said company to defendant, dated October 26, 1848.

Clair Circuit. The action was commenced in the St. Clair County Court, June 19th, 1848, upon a promissory note, drawn May 25th, 1848, payable to A. Bean or hearer, on demand. The defendant sought to set off a negotiable note of which he was the bearer,' made by Bean, and also the amount of another note made by another person, hut which the defendant claimed Beau had agreed while he held the note in suit, he would receive and apply upon' the note.

<p>Error will not lio to reverse tho decision of a Court upon a matter within its discretion.</p> <p>Thus, where under the authority of the 76th section of the act to consolidate the laws in relation to County Courts, &c., (Sess. Laws 1849, page 290,) empowering the Circuit Court, in case of certiorari, &c., to affirm, or reverse the judgment of the County Court, in whole or in part, or to give such other judgment as justice shall require, and in its discretion, to remand the cause to the County Court for a new trial, the Circuit Court reversed the judgment of the County Court, remanded the cause and ordered anew trial, it was held upon error brought to reverse so much of the judgment of the Circuit Court as remanded the cause and ordered a new trial, that the Court had discretion as to granting such order, and that their decision could not be reviewed.</p> <p>Plaintiffs below were lessees of defendants below by lease, containing a stipulation for payment of all the rent ($1,200) of the term, iu repairs on the premises. They brought their action in the County Court, against their lessors, (defendants below,) for money, work, labor, repairs, materials, &c., done and furnished for the demised premises, claiming $1,500. The defense set up was a special contract, to-wit: tho lease aforesaid, under which it was claimed the money, work, &c., if any, was paid, furnished, &c. Upon the verdict of the jury, judgment was rendered for the plaintiffs below, for $1,222 61. The Circuit Court reversed the judgment, remanded the cause, and ordered a new trial. This Conrt were of opinion thatif they had powerto review the judgment of the Circuit Court, it should properly bo affirmed.</p>

The defendants in error, in August, 1849, under the boat and vessel law of 1846, attached the steamer Globe, on a claim for materials furnished. The plaintiffs in error paid a portion of the demand, executed a bond for the balance, and the boat was released, with an agreement on the part of the defendants in. error, that they would not attach or molest the boat for the balance of their claim, secured by the bond, until the latter part of September following.

<p>Before the credit of a witness can be impeached by proof of statements elsewhere, relevant to the matter in issue, at variance with Ms testimony, he must be first inquired of, as to such statements, and the time, place, and person involved in the supposed contradiction.*</p> <p>“Where the witness neither admits nor denies having made the statement conflicting with his testimony, on the trial, but merely sayg^he does not recollect having done so, his credit may still be impeached by showing that he did make the conflicting statement.</p> <p>“Where a witness was asked on cross examination, whether wliile ho was in jail, he had not made a certain statement to M. B., and other persons named, to which he replied, that ” he did not recollect having made such a statement to B., or any other person, while in jail;” that “ if he did it was false;” that “ he was very careful what he did say to them in jail;’* It was held competent to prove the making of the statement imputed to witness, to discredit his testimony.</p>

<p>An attachment suit has always been considered in tills State a special proceeding, in which the Court exorcises an extraordinary jurisdiction under a special statute, prescribing its course, and not under its general powers. The Court in such cases can act therefore only under the special powers limited by the statute, and according to 'the forms of procedure it prescribes.</p> <p>The second section of the act of proceedings against debtors by attachment, (R. S.} 1846, p. 514,) requires that before the writ shall be executed, the plaintiff or some person on liis behalf, shall make and annex thereto an affidavit, stating that the defendant therein, is indebted, &c., &c. Section 4 of the same act provides that no writ shall Ic issued under the provisions of the act, unless the amount stated in the affidavit, as duo the plaintiff, over and above set-offs, shall exceed the sum of one hundred dollars: Held, that the two sections are to be taken together as forming one, and that the affidavit required, must be madq^ind exbibitedto the Clerk, before he lias power to issue the writ, and that when made, it must be attacked to the writ before the writ can be executed.</p> <p>"The writ in an attachment case bore date and was sent to the plaintiff ten days before the affidavit, afterwards annexed to the writ, was made: Held, that the writ was void.</p>

<p>An indictment under Section 20, Chapter 154, R. S., 1846, for aiding in the concealment of any articles, money, goods, or property, knowing the same to be stolen, is supported by</p> <p>, proof of acts of the aider, which will assist the principal felon in converting it to the use of the thief, or which will aid him in preventing its recovery by the owner, and it is not necessary to prove that the property was actually hidden or secreted anywhere.</p> <p>The statute of this State in relation to receivers, &c., of stolen property, has enlarged the common law offense of receiving stolen property, knowing the same to be stolen, by making persons who shall aid the principal felon in the concealment ©f the property, equally guilty with him who receives such property.</p> <p>■Where the charge of the Court contains an abstract proposition of law, having no particular reference to the evidence submitted, it will be presumed, although the language is general, that the jury properly applied it to the case before them.</p>

<p>Complainants, as executors, filed a bill to foreclose a mortgage to their testator, describing themselves at the commencement of the bill, as executors of the last will and testament of the testator, and nowhere setting out his death, or their representative character, and making no allusion to the probate of the will: Held, that the bill showed no right of action in the complainants, on which to base a decree.</p> <p>In an action by executors, it is not competent for the plaintiffs or complainants to prove their office by general reputation. • '</p>

Case reserved, from Oakland Circuit, on motion for a new trial. Action, trespass quare clauswn fregit; the alleged trespasses consisted in running the cars of the Detroit and Pontiac Railroad Company, &c., over the plaintiffs close, by defendants.

Case reserved, from the Circuit Court for the county of Branch. This was an action of replevin, originally brought in the Branch County Court, by the defendants in error, against the plaintiff in error.

' Case reserved from Wayne Circuit. About tbe 10tR May, 1850, tlie Husband of one Anna GoooH, owned and occupied a dwelling House, on a farm in Plymouth, Wayne county, on wHicH He and His wife Had resided from tHe time of tHeir marriage in 1847, to tHe day above named; on wHicH day, GoocH sold and conveyed the farm to Plumsted, one of defendants, but the wife did not join in the conveyance, or in any way release her right in the premises, or consent to the conveyance.

The bill in this cause was filed in aid of an execution at law, in which the complainant states that on the 8th day of August, 1850, he recovered in the Genesee Comity Court, a judgment against defendant, Joseph S. Farnham, for 8525 21, damages and costs; that the same was rendered on two certain promissory notes, &c.; and that on the 4th day of September, thereafter, an execution was issued and delivered to the sheriff, who, for want of goods and chattels, levied the same…

Case from tbe Wayne Circuit. • This was an action brought in the Wayne Circuit Court to recover $1600 on a policy of insurance made by defendants on one-third of a mill at Ann Arbor. Held: that on the'foregoing facts, it did not appear that the pending litigation was a -fact' so material to the risk, that its non-communication by the plaintiff would vitiate the policy, to which the defendants excepted, and the Court gave judgment for the plaintiff.

<p>Case reserved from Calhoun’Circuit Court.</p>

Case reserved from Wayne Circuit. This was an action of debt brought on the following bond : Know all men by these presents, that I, Benjamin B. KercbevaJ, of the town of Detroit, in the County of Wayne, and State of Michigan, am held and firmly hound unto the President, Directors, and Company of the Farmers and Mechanics Bank of Michigan, in the penal sum of' six thousand dollars, to he paid to the said President, Directors, and Company of said Bank, or to their assigns or…

<p>The common law rule that those rivers only aro subject to the servitude of the public interests which are of public or common use, for carriage of boats and lighters, and for transportation of property, has been enlarged in this country, and in nearly all the States has been extended, so as to be adapted to the necessities of trade and commerce, and to embrace rivers upon which, in their natural state, there is capacity for valuable floatage, irrespective of the fact of actual public use, or the extent of such use. The fact that u> floatable stream has not been used by the public, or has only been used by persons following a particular occupation, docs not deprive such stream of its public character. Although in some of the States usage and custom have been regarded as the foundation of this public right in fresh rivers, in the new States of the Union, from necessity and the nature of tilings, such cannot he the foundation of the public right.</p> <p>The true test in determining the right of public use in fresh water streams, as public highways, is whether a stream is inherently and in its nature, capable of being used for the purposes of commerce for the floating of vessels, boats, rafts or logs. Where a stream possesses such a character the easement exists, leaving to the owners of the bed all other modes of use not inconsistent with it.</p> <p>The Ordinance of 1787 iu declaring “that the navigable waters leading into the Mississippi and St. Lawrence, shall be common highways, and forever free,” supercedes the common law doctrine of the necessity of usage or custom to establish a public right, even if that rule would otherwise prevail in the region over which this Ordinance was designed to extend.</p> <p>It is not necessary that a stream should be susceptible of navigation by boats, to render it a public highway. The servitude of public interest depends rather upon the purpose for which the public requires the use of its streams, than any particular mode of use.</p> <p>The public right of use in streams is not affected by the fact that they have not a capacity for floatage, in their natural and ordinary stage, at all seasons of the year. It is a valuable and not a continual capacity of use, which determines the right.</p> <p>To render an employer responsible for the fault or negligence of his employee, the injury complained of must arise in the course of the execution of some service lawful in itself hut negligently or unskillfully performed: for the wanton violation of law by a servant,although occupied about the business of his employer, such servant is alone responsible.</p> <p>An employer made a bargain with his employee to cut all the logs the employer had on certain land, and to deliver them to the employer at a place named, the employer having no interest in the running of the logs, until they reached the point of delivery, nor to render any assistance, pecuniary or otherwise, in the cutting or running of the logs: Held, that the relation of master and servant did not exist, and that the employee alone was liable for any injury occasioned to others by his conduct in performing Ms contract.</p>

<p>A testator by Hs last will directs bis executors or administrators to sell bis real estate to tbe best advantage, and invest the proceeds. Tbis is a general power in trust, and tbe executors or administrators are authorized to sell and deed such real estate, without a license from the Judge of Probate.</p>

©ase .reserved from the Oakland Circuit. The two plaintiffs were tenants in common of certain premises in Oakland county. One of them conveyed to the defendant, for the use of the Detroit and Pontiac Railroad, the undivided half of the right of way over the common estate. The defendant having entered upon the premises in which such interest had been granted, an action was brought in the name of both tenants, for trespass upon the common close.

<p>Common carriers by railroad are excused from a personal delivery of goods carried by them;* but in lieu of delivery, are required to notify tbe consignee, and tbeir liability as carriers continues until the consignee has bad a reasonable time to remove tbe property.</p> <p>Section 16 of the act to incorporate tbe Michigan Central Raiboad Company, providing that when a certain time has elapsed after notice to consignee of tbe receipt of property, storage-may be charged and that in all cases tbe Company shall be responsible for goods in deposit in any of tbeir depots awaiting delivery, as warehousemen, and not as common carriers, does not exonerate the Company from liability as such carriers, incases where the notice-of receipt of property has not been given the consignee. The language awaiting delivery,” held to apply to the goods, only after the notice given.</p> <p>The charter of the M. C. R. R. is in the nature of a contract between the Company and the State, permanently binding upon each, and the principal engagement on the part of the Company is, that they shall become and continue to remain common carriers. Their liability' as common carriers, consequent upon the contract, and the law appertaining thereto, becomes irrevocably fixed. They cannot alter or modify this liability by any stipulation or contract.</p>

<p>The presentation of a forged draft or order for money, to the person to whom it purports to be directed, for payment thoreof, knowing &c., although payment is refused and the draft returned to the presenter, is an uttering and publishing, within the meaning of section 2, Ch. 155, B. S.</p> <p>The uttering a forged instrument, being punishable by imprisonment in the State Prison, is made a felony by the provisions of Sec. 18, Ch. 161, E. S.</p> <p>A draft made payable to the bearer, no payee being named therein, is nevertheless an order for money, in the meaning of the statute.</p>

Case reserved from Calhoun Circuit. This was a suit against A. H. Paine, M. H. Crane, and D. Peabody, ■on a note in these words: “Fifteen days from date, I promise to pay Martin Wetherwax one hundred and ninety dollars, value rac’d, and use.” Signed, “A. H. Paine.” (Indorsed,) “M. H. Crane, D. Peabody.” Plea, general issue, and notice that the defendant, Paine, had been garnisheed in two suits, before a justice of the peace, in respect to said note by ■creditors of the…

The bill of complaint in this cause was filed against the Mayor, Recorder, Aldermen, and the City Marshal of Detroit, to restrain the collection of an assessment imposed by order of the Mayor, Recorder and Aldermen upon lot 176, on the south side of Attwater street, in said city.

<p>The city charter of Detroit, and the acts amendatory thereto, empower the Common Council to provide for the expenses of paving streets, &e., either by assessment on the owners or occupants of lots on the streets to be paved, or otherwise, as they may direct. The city ordinances adopted in pursuance of such authority, direct such expenses to be raised by assessments upon the owners and occupants of lots, and that the Common Council shall cause an assessment to be made by the city surveyor on the owners or occupants of lots fronting on the street &c., to be paved, and the surveyor is also required to state the names of the owners and occupants so to be assessed, in a written report or assessment roll. Under these provisions of the city charter and ordinances: Held, that an assessment upon “ St. Peters and St. Pauls Cathedral,” the roll neither describing the lots, or naming the owners or occupants, was void.</p> <p>It seems, the provisions of chapter 20, It. S., page 103, exempting from taxation « all houses of public worship,” &c., were not intended to oxempt the lot or ground upon which houses of public worship stand.</p> <p>The exemption in chapter 20, E. S., of houses of public worship from taxation, applies only to taxes imposed under the general system of taxation, adopted for the State, counties, townships, or other municipal corporations, and does not extend to assessments for the expenses of paving streets, imposed upon the owners or occupants of lots.</p> <p>An assessment imposed upon a city lot for paving expenses, held not vitiated, on the objection that the paving was contracted for before the assessment was made.</p>