Volume 20 — Michigan Reports

Appeal in Chancery from Muskegon Circuit. This was a bill for a divorce on the alleged adultery of the wife. The answer denied the offense charged; and the defendant demanded a trial of the issue by a jury, which the Court below refused.

Odell recovered a judgment on the 7th of April, 1865, before a Justice of the Peace for tbe County of Calhoun, against Climie, for $275.

Eliza Weinrieh, being imprisoned in the Detroit House of Correction, her attorney petitioned the Circuit Court for the County of Wayne for a habeas corpus to enquire into the cause of her imprisonment. The writ was issued and the return showed that she was in custody by virtue of a commitment under the hand of William Stevenson, a Justice of the Peace for Genesee County, upon a conviction before said.

The Peninsular Railway Company desiring to lay the track of their road across land owned by George Howard and occupied by Benjamin Thompson, lying in the township of Ontwa, in the County of Cass, presented their petition to the Probate Court of Cass County, for the appointment of three Commissioners, under the provisions of § 19 of the “Act to provide for the incorporation of Rail Road Companies,” (as amended, Laws of 1859, p. 559), to determine the necessity of taking the…

This was an action of trespass on the case commenced by a warrant issued by a Justice of the Peace, upon an affidavit of which the following is a copy. “ State of Michigan, Kalamazoo County, ss.

Appeal in Chancery from Washtenaw Circuit. The complainant filed her bill against her husband for a divorce on the ground of cruelty. The defendant answered ; and issue was joined by the filing of a replication, An order was entered closing proofs; and the cause stood for hearing on bill, answer and replication.

Assumpsit upon a special agreement. The plaintiffs, Lydia B. Lee and Helen M. Wilson, declared against Daniel Bolles and Christopher J. Dickerson, “For that whereas, heretofore, to wit: On the 15th day of September, A. D. 1868, at Hillsdale, in said County, by a certain agreement made by, and between the said plaintiffs and the said defendants, which said agreement is in the words and figures following, to wit: ‘ This agreement, made and entered into, this seventh day of…

Case made from Saginaw Circuit. This was an action of assumpsit commenced on the 23d day of December, A. D. 1868, by declaration upon a promissory note. The defendant pleaded in abatement another action pending for the same cause, commenced on the 23d day of March, 1867. The plaintiff replied that the action first commenced had been discontinued on the 17th day of December, 1868.

Oertiorari: To Herman C. Hanse, Esq., a Justice of the Peace for the County of Livingston, to review the proceedings for the opening of Hamburg street in the village of Brighton. The President and Trustees of the village of Brighton, a corporation created by-an act of the Legislature of the State of Michigan, and made subject to Chapter.No. 72 of the Compiled Laws, proceeding under section 27 of said chapter ( Comp.

<p>Practice'in the Circuit Court: Attachment: Dissolution: Powers of Circuit Court Commissioner's. A Circuit Court Commissioner lias no power to dissolve an attachment, under the provisions of the “ act to amend chapter 114, of the Revised Statutes, entitled of proceedings against debtors by attachment,” ( Comp. L. §§ U778-75) upon the application of a defendant who is not entitled to have the property restored to him.</p>

Case made from Ottawa Circuit. This was an action of assumpsit brought for money claimed to have been lent by the plaintiff to the defendant’s wife. The suit was brought in Justice’s Court, and judgment rendered for the plaintiff for twenty-five dollars and costs. From this the defendant appealed to the Circuit Court for the County of Ottawa.

Appeal in Chancery from Van Burén Circuit. The complainant filed his bill to foreclose a mortgage, and alleged that on the sixteenth day of January, 1861, the defendant became indebted to the complainant in the sum of two thousand two hundred and sixty-five dollars and fifty-two cents, payable in three installments yearly thereafter, with annual interest at the rate of ten percent; and that to secure the payment of the same, the defendant assigned to complainant a…

Caspar Pipp, Henry Spitzley, and Joseph Spitzley, brought an action of assumpsit in the Wayne Circuit Court against Albert Reynolds and Andrew Hess, setting forth their cause of action thus: “ For that whereas, heretofore, to wit, on the fourth day of March, A. D. 1868, one Roger Ecklin, was a partner in business with the defendant, Andrew Hess, and doing business with him, said defendant,1 under the firm name of Hess and Ecklin, and while the said Ecklin was so a partner of…

Certiorari: To Tbe Board of Supervisors of tbe County of Ingbam. In 1849, certain Commissioners appointed by the Legislature of 1848, (Laws of 18J¡8, p. %%0), laid out and established a State Road from Marshall, in the County of Calhoun, by the way of Duck Lake and Baton Rapids, (in Baton County), to Lansing, in the County of Ingham. The road passing through the townships of Delhi and Lansing in the last named county.

This was an action on the case brought by George T. Davis against the ■ Detroit and Milwaukee Railroad Company, for injuries received by him while in the employ of the defendants as “head yardsman” at Detroit, alleged to be occasioned by the incompetency and carelessness of one Joseph Harris, an engine driver, also in the employ of defendants, and Avhose business it was to run a “ pony engine” used for training cars, at the depot in Detroit.

Motion to dismiss a case made from the Oakland Circuit. O. F. Wisner moves to dismiss the cause for want of jurisdiction on the^ground: 1. It purports to be a case made after judgment, for review upon the facts, and the record shows that the case was made since the statute was passed, taking from this Court the right to review upon the facts. 2. No exceptions to the finding of law of the Court below appear from the record to have been taken.

Motion to dismiss a writ of error. The writ of error issued to the Circuit Court of Ionia, to bring up the record of the proceedings in that Court, by which John Hicks and Joshua Hicks were discharged by habeas corptis from arrest on a capias issued in a civil action.

Fisher was charged on the information of the Prosecuting Attorney of the County of Kalamazoo, with the larceny of a heifer, “ of the goods, chattels and property of A. B. Dorrance.” On the trial Dorrance testified “that he had a light red heifer, which he turned into the road, and shortly afterwards missed her. That he bought the heifer and paid for it.

<p>Action: Liability of Townships. Townships are under no legal obligation to keep in repair bridges and culverts within their limits; and therefore they are not liable under the act of 1861, (So. 197, P. U07) for damages occasioned by neglect to keep such bridges and culverts in repair. — Martin v. Highway Commissioners of Sües, k Mich., 557, cited and approved.</p> <p>Construction of statutes. In the construction of statutes the intention of the Legislature is undoubtedly the end to be sought; but such construction should not be repugnant to the clear meaning of the words.</p>

<p>Error to Jackson Circuit.</p> <p>Action on the' case. Eaton, the defendant below, being in the occupancy of premises belonging to Winnie, under circumstances which show his occupancy to be that of a licensee, merely, used the premises to pasture upon them a flock of sheep affected with an infectious disease; which, by means of this use of the premises, was communicated to the sheep of Winnie, who moved in immediately after the sheep of Eaton had been taken away. For the damages, suffered by Winnie, resulting from the infection thus communicated to his sheep, he brings this action against Eaton. Evidence was offered on the trial to show that Eaton knew ■of the disease and the danger of and mode of communicating infection from it; and that Winnie was ignorant in these respects. ■' •5</p> <p>The questions to be reviewed in this Court were raised in the Court below upon the admissibility of evidence, and also by exceptions to the charge of the Court.</p> <p>The defendant requested the Circuit Judge to charge the jury:</p> <p>1. That the plaintiff cannot recover on the third count, for the reason that the acts alleged as willful or negligent were lawful acts on the part of the defendant.</p> <p>2. That the defendant had the right to put on the premises sheep that had the disease known as the scab.</p> <p>3. That if the sheep of the plaintiff took the scab by reason of the infection remaining after the occupation by defendant, this would not make the defendant liable.</p> <p>5. That plaintiff had no right to rely on the statement of Baton that a frost would kill the scab, but knowing the facts himself, was himself bound to care for his own sheep and see that they were not infected.</p> <p>6. That said statement of Eaton furnishes no excuse to the plaintiff for not seeing that his sheep were cared for and the disease prevented.</p> <p>7. That Winnie, knowing that the farm had been occupied by sheep having had the scab, it was his duty to take means to prevent his sheep from taking the disease, and any statement made by Baton furnishes no excuse.</p> <p>8. That if Winnie took no means to prevent the disease, he was himself guilty of negligence.</p> <p>The Circuit Judge refused to charge as firstly, secondly and thirdly as above requested; and also refused to charge as fifthly, sixthly, seventhly and eighthly above requested; but did charge the jury in reference thereto, that if the defendant negligently and knowingly put diseased sheep on the premises, knowing that the disease was contagious, and that the plaintiff’s sheep would thereby be injured, he would be liable if plaintiff’s sheep were thereby infected; that if the plaintiff was guilty of negligence in trusting to what Eaton said about the disease being cured by the frost, or if he was negligent in putting his sheep on the place after he had knowledge of defendant’s sheep being diseased, then the defendant would not be liable on that count; that if the complainant was himself negligent, or lacked due care in placing the sheep on the place, or in other words, if the plaintiff through negligence contributed to the injury he cannot recover.</p> <p>The defendant excepted to the charges, and the aforesaid refusals. The jury, rendered a verdict for the plaintiff; and the judgment entered thereon comes into this Court by writ of error.</p>

This was an action of replevin brought by Jacob L. Ash, in the Circuit Court for the County of Wayne, against Charles Martin, for a yoke of oxen. Ash recovered judgment in the Court below, and Martin now brings the record here by writ of error.

Certiorari: To the Eecorder’s Court for the City of Detroit, to review the proceedings for opening and extending an alley between Lafayette avenue and Howard street, from the west line of the Woodbridge Farm to Twelfth street, in the Ninth Ward of the city of Detroit.

Case made from Wayne Circuit. Emil P. Benoit and George Miller were candidates for office of Treasurer of Wayne County, at the general election held in November, 1866.

This was an action of ejectment brought by Charles Thayer, to recover the southwest quarter of what was formerly known as the public square, in the city of Jackson. The imperfection of the record brought up by the writ of error, — the character and extent of which appear from the opinion of the Court, — makes a full statement of the facts in controversy, on which the errors of the Court below are assigned, impossible.

Motion to dismiss an appeal in Chancery from the Cass Circuit. The bill was filed by Charles.

James Tripp, plaintiff in the Court below declared against Frederick Hasceig, in trover, averring that “on or about the 17th day of June, 1867, at the Township of Brady, County and State aforesaid, the plaintiff was lawfully possessed, as of his own property, of one certain grey mare, about — years old, of the value of two hundred dollars, and was lawfully possessed, as aforesaid, of two yearling colts, of the value of two hundred dollars, and being so possessed of said…

<p>Practice in the Circuit Court: Settling bills of exceptions. A bill of exceptions •will not be stricken out for delay in settling it, when the party presenting it is not responsible for the delay.</p>

During the January Term, 1870, of the Circuit Court for the County of Wayne, — on the 28th of February, — a verdict was rendered, and judgment entered thereon, in favor of the defendant in a suit brought by Jay Olmstead against The ¿Etna Live Stock Fire and Tornado Insurance Company. A bill of exceptions was settled and signed by the Circuit Judge on the 5th of March.

Appeal in Chancery from Wayne Circuit. This was a bill for a divorce filed in the Circuit Court for the County of Wayne, in Chancery, by J. Martin Shoemaker for a divorce from Amelia C. Shoemaker.

Appeal in Chancery from Wayne Circuit Court. The complainant, Dalrymple, and one of the defendants, Sheehan, on the twenty-sixth day of December, 1867, bought of Thomas Reath the .brig Sunbury, used in navigating the northern lakes and rivers, at the agreed price of $8,500. The complainant in his bill avers that it was understood and agreed that he and Sheehan should each pay said Reath for said vessel, the sum of $4,250, and should be equal part owners of said vessel.

Enders was charged on the information of the Prosecuting Attorney for the County of Oakland, that he, said Enders, “on the 10th day of February, 1866, at the town of Groveland, in the County of Oakland, unlawfully, knowingly and designedly did falsely and feloniously pretend to one Frederick Brandt, that certain land which-he, the said Enders, was about to sell to the said Brandt, contained in amount 120 acres, being one 80 acre lot and one 40 acre lot; that there was not…

This was an action on the case brought by Eli B. Anderson, in the Circuit Court for the County of Kalamazoo, against the Michigan Central Railroad Company, for the value of a building, and property therein stored and adjacent, consumed by fire on the night of the 20th of April, A. D., 1866; Anderson claiming that the fire was communicated from sparks and cinders flying from engines passing over the track of the railroad company, and was the result of carelessness and…

James Tripp on the 13th day of December, 1865, conveyed to Frederick Hasceig a farm in Kalamazoo County, on which at the time of the execution.and delivery of the deed there was a field of standing corn; which remained unharvested until the spring following, when the defendant gathered it.

This suit was commenced by a writ of attachment, to which was annexed the affidavit of the plaintiff, as follows: State of Michigan, County of Calhoun, ss. Sarah J. Barker, plaintiff in the writ hereunto annexed, being duly sworn, deposes and says, that James G-.

This was an action of special assumpsit brought by Thomas P. Eldridge, against Solomon B. Bliss.

This was an action of assumpsit brought hy James W. Sheldon against Marvin Hannahs and George Hannahs, upon a certificate of deposit of which the following is a copy: No. 1223 — State or Michigan, Hannahs’ Exchange Bank, Albion, Eeb. 2d, 1859. Mrs. Jennett Failing has deposited in this Bank three hundred and four 75-100 dollars, subject to the order of herself on return of this certificate, in current bank notes, interest ten per cent. M* Hannahs & Son. $304 75-100.

The Fulton Iron and Engine Works commenced an action in the Circuit Court, for the County of Ionia, by the issuing of a capias ad res. against Louis Hicks, John Hicks and Joshua Hicks, upon which the Circuit Court Commissioner of that county endorsed an order to hold John Hicks and Joshua Hicks to bail. This order was made upon the following affidavit: “State oe Michigan, County op Ionia, ss.

<p>Certiorari: To C. E. McAlester, Esquire, Circuit Court Commissioner for the County of Genesee, to review proceedings before him for the dissolution of an attachment.</p>

On the 29th day of May 1866, George A. Kellogg, the intestate of the defendant in error, commenced proceedings before the Circuit Court Commissioner of the county of Branch to obtain possession of premises, which on the 24th day of May, 1865, he had leased to William N. Delashman “ for the term of one year-, with the privilege of having the same three years at the same rent, and at the option of the lessee, for the annual rent of four hundred dollars; payable…

Appeal in Chancery from Wayne Circuit. The bill in this cause was filed in the Circuit Court for the County of Wayne, in Chancery, by Seth Case, against Samuel E. Peters.

Case made from Bay Circuit. This was an action of replevin, brought in the Circuit Court for the County of Bay, by Dexter A. Ballou, against Michael W. O’Brien,' John L. Walsh and Daniel Burns, for the recovery of the possession of a lot of pine logs, being about six hundred in number, which were then lying in Culver Creek, and in or near the Kawkawlin river, in Bay County, and were alleged to have been cut on the east half of the south-east quarter of section sixteen,…

This was an action of trespass brought by Chas. A. Lorman against Edward Chope, Frederick L. Seitz, Henry Seitz and Michael Staueh, for entering upon the premises of the plaintiff and cutting and carrying away a thousand tons of ice.

Certiorari: To Edward Minock, Esquire, Circuit Court Commissioner, for the County of Wayne, to review proceedings against Ellen Mack, as the garnishee of William B. Mack.

Joseph J. Pefctinger was convicted in the Circuit Court for the County of Oakland, upon the information of the Prosecuting Attorney of that county, charging him with the obstruction of a highway. The record is brought into this Court by writ of error.

This case came into the Circuit Court for the County of Lenawee, by appeal from the disallowance by commissioners, appointed by the Probate Court of that county, of a claim presented by Medora E. Smith, against the estate of Addison J. Comstock, deceased, arising upon a mortgage executed by the deceased and Darius C. Jackson, on the 25th day of January, 1866, then of the village of Oil Springs, in the Province of Canada, conditioned for the payment “ of two thousand dollars…

Estes, Commissioner appointed under the act of 1867 (No. Jfll, p. 964-), appropriating certain nonresident highway taxes for the improvement of certain State roads, and providing for the construction and improvement thereof, to compel John Denahy, Treasurer of the township of Elk Rapids, to pay to the relator, certain moneys in the possession of Denahy, and which the relator claims, were appropriated to the improvement of the Traverse Bay and Houghton Lake State Road, — one…

This was an action of assumpsit brought by Olive McDowell, against Albert Weston, before a Justice of the Peace, in which the plaintiff declared in the words following: “ The plaintiff declares against defendant for goods, wares and merchandise, sold and delivered; cash lent; and work and labor done, — all within the last six years, to the amount of ($300 ) three hundred dollars.” The defendant not appearing, a plea of general issue was entered in his behalf by the Justice,…

Bidwell Chapman and George P. Chapman brought an action of assumpsit in the Circuit Court for the County of Bay, against the “Keystone Lumber and Salt Manufacturing Company,” declaring specially: “ For that whereas the said defendant, to wit: on the first day of April, 1868, caused to be put a large quantity of logs, to wit, ten thousand logs into the Rifle River, the same being a navigable river in said county, for the purpose of floating the same to the place of…

Appeal in Chancery from Oakland Circuit. John W. Phillips filed his bill in the Circuit Court for the County of Oakland in Chancery, to obtain the specific performance of a contract, by which George Jacob Stauch agreed to convey to him, a farm in Oakland County, of about ninety-two acres; on which, at the time of the contract, Stauch was residing with his family. The facts of the controversy were settled by stipulation, as follow: “First.

Appeal in Chancery from Livingston Circuit. The hill in this cause was filed by John Rayner, in the Circuit Court for the County of Livingston, in Chancery, against Frederick J. Lee, to quiet the complainant’s title to Lot 54, on Crane & Brooks’ plat of the village of Howell, and to compel a release of the defendant’s pretended title.

Case made from the Recorder’s Court of Grand Rapids. This was an action of assumpsit brought in the Recorder’s Court for the city of Grand Rapids, by Samuel M. Turner, against the city of Grand Rapids.

Appeal in Chancery from Wayne Circuit. The bill in this cause was filed in the Circuit Court for the county of Wayne in Chancery, by Ralph 0.

This was au action brought in the Circuit Court for the County of Kalamazoo, by Charles D. Van Vechten and Morgan L. Fitch, against Cecil D. Grimes and Francis Coleman, in which the plaintiffs declared on the common counts in assumpsit.

This was an action of debt brought in the Circuit Court for the County of Oakland, upon a recognizance taken by a Justice of the Peace, for the appearance at a future day for further examination of one John Tompkins, charged with larceny.

This was an action of asmmpsit brought in the Circuit 'Court for the County of Monroe, by Maurice R. Stettheimer and others against Solomon Meverñeld and Henry Wolf, in which the plaintiffs below recovered a judgment. The assignments of error were of a general character; or, so far as they were specific, they were not sustained by the facts appearing on the record.

This was an action on the case brought by W. Ward Wheeler, in the Circuit Court for the County of Wayne, against the Great Western Railway of Canada, for neglecting to deliver two casks of zinc, received by the railway company at Suspension Bridge to be conveyed to the plaintiff at Detroit. The plea was the general issue.

This was an action of trover brought by Pomeroy in the Circuit Court for the County Washtenaw for the value of a pair of horses delivered by him to Wait, in exchange for a promissory note, of which the following is a copy: $200.00. Township op Sharon, Oct. 12, 1868. One year after date, I promise to pay W. D. Munn or bearer, two hundred dollars, for value received, with ten per cent, interest. No. 113. CONBAD HISELSOHWEBDT.

Appeal in Chancery from Allegan Circuit. The bill in this cause was filed in the Circuit Court for the County of Allegan in Chancery, by Wilson C. Ed-sell, Daniel M. Hall, Lenora Foster, Franklin Chadsey, Willard Higgins, and James Monteith, against Emory 0.

Case made from Macomb Circuit. Ejectment: Eor a strip of land lying along the east and west quarter line on section ten, in town five north, of ranee twelve east. The title to the east half of the north west quarter was vested in the plaintiff, Smith; and to the east half of the south west quarter in the defendant, Hamilton; the question in controversy being the true location of the boundary line between the parties.

This was an action of assumpsit brought by James Hingston, in the Circuit Court, for the County of Saginaw against Jasper K. Gooding. The plaintiff declared upon the common counts in asstimpsit, including »the count upon an account stated: and on the trial offered in evidence an exemplification of a judgment rendered in the Court of Queen’s Bench, Toronto, Upper Canada, against the defendant, and in favor of the plaintiff and one William McBain.

Case made from Oakland Circuit. Mrs. Angeolina Wisner, executrix of Moses Wisner deceased, presented to the Probate Court of Oakland County for allowance a claim for the payment of the sum of $3151, 73, to discharge a mortgage made by the deceased and resting on his homestead at the time of his death.

49, of 1864, entitled “ an act to authorize the several townships in the counties of Livingston, Oakland, Washtenaw and Wayne, to pledge their credit, and the County of Livingston to raise by tax a loan of money to aid in the construction of a railroad from some point near the city of Detroit to Howell, in the County of Livingston.” An issue of fact, raised by the answer of the defendant, was directed by the Court to be tried in the Circuit Court for the County of Washtenaw,…