Volume 21 — Michigan Reports

Thirkell against Aaron Fisher, Elam Fisher, John II. Griffith, and William F. Kier, for an injury to the plaintiff occasioned by an opening in the sidewalk in front of premises in the City of Detroit alleged to be owned by the defendants, Aaron and Elam Fisher, and to be in the occupancy of the defendants, Griffith and Kier. The questions to be reviewed arise upon the charge of the Circuit Judge as to the liability of the several defendants.

This was an action of ejectment brought by Walter Crane in the Circuit Court for the county of Wayne against Edwin Reeder and Eliza Reeder, devisees under the will of Edwin Reeder, deceased, who devised to them, in common with others, a large tract of land, which includes the locus in quo. The facts, as developed on the trial, are substantially as follows: In 1799, John Harvey was a resident of Detroit.

This was an action on tbe case brought in the Circuit Court for the county of Wayne, by William Blackeby and Hannah Blackeby, against the city qf Detroit, for an injury to Mrs. Blackeby, occasioned by a defective crosswalk. The defendant pleaded the general issue.

This case was brought into the Circuit Court for the County of Kalamazoo, by the appeal of Mary Kempsey •from the judgment of the Probate Court of that county, allowing the will of Thomas Patterson. The issue formed in the Circuit Court was tried by a jury, who rendered a verdict for the proponents. The questions for review in this Court arise upon the rulings of the Circuit Judge on the admission and rejection of evidence as to the testamentary capacity of the testator.

This was an action of trespass brought in tbe Circuit Court for tbe County of Wayne, by George Hoffman against William Shaw, in which the plaintiff declared: “Eor that whereas said plaintiff, to wit, on the 11th day of July, 1868, at the 'city of Detroit, being tben and there in tbe quiet, lawful, and peaceable possession of certain lands and premises; said lands being described as the rear end or portion of lot thirty-three, section seven, of tbe Governor and Judges’ plan…

D. D. Hughes moves to dismiss the appeal, because: 1. That the appeal bond filed in this cause by the said complainant and appellant is not given in any sum or amount fixed or directed by a Judge of the Circuit Court, or by a Circuit Court Commissioner. 2. That the appeal bond filed in said cause has but ■one surety.

Motion to dismiss an appeal. The appeal in this case was taken from the judgment ■of the Circuit Court for the County of Manistee, under the act of 1864 (No. 591), to provide for the collection of .demands against water craft. § 36 provides for an appeal by any' party who may think himself aggrieved, and enacts •that the claim of appeal shall be filed with the clerk within ten days after the making of the decree or judgment appealed from, and the appellant shall, within five…

This was an action of assumpsit, brought by Silas Halloway in the Circuit Court for the County of Lenawee, upon a promissory note made by William S. Sammons; the principal defense to which was that the note was not stamped as required by the revenue laws of the United States. The plaintiff below had a verdict and judgment, and the defendant brings error.

This was au action of assumpsit brought by John McDonough and Chauncey Andrews, in the Circuit Court for the County of Hillsdale, against the Michigan Southern and Northern Indiana Bailroad Company for damages sustained by the plaintiffs for the non-performance of a contract to carry live stock from Hillsdale, Osseo and Coldwater, to Detroit.

Appeal in Chancery from Bay Circuit. This was a petition filed in the Circuit Court for the county of Bay in Chancery, in each of the above entitled cases, by Daniel Burns, to set aside the sales of the premises described in the mortgages, which the bills were filed in the Court below to foreclose. The Circuit Judge denied the prayer of the petition; from which decision Burns appeals to this Court.

This Avas an action on the case brought by Amelia .Berger in the Circuit Court for the County of Wayne against John, C. Jacobs for an assault and battery committed by the defendant upon the person of the plaintiff, who was, at the time the cause of action arose, and so continued to be up to the time of the commencement of the action, a married woman. The defendant pleaded the general issue.

Exceptions certified from the Recorder’s Court of the city of Detroit. Virginia Doyle was charged on the information before the Recorder’s Court of the city of Detroit, with the offense of mingling poison (arsenic) with port wine, on the 23 d day of February, A. D. 1870, with intent to kill one Catherine DeBaptiste. She was convicted, and a bill of exceptions settled and certified to this Court, under the statute.

This was a petition filed in the Probate Court for the County of Clinton, under the provisions of act No. 53 of Laws of 1867, by Florilla Andrews, to ascertain, by the determination of that Court, who are the legal heirs of John W. Ryan, and who are entitled to the lands of which the said John W. Ryan died seized, he dying without issue, and being, at the time of his death, unmarried and a minor, under seventeen .years of age.

Applicatiou for mandamus: By Nelson B. Jones to compel tbe Commissioner of tbe State Land Office to issue a certificate for the purchase of lot 5, block 245, in the city of Lansing, of which the relator claims to be the purchaser on the 28th of October, 1869, at a sale of Primary School lands forfeited for nonpayment of interest.

This was an action of assumpsit brought by Warren H. Corning in the Circuit Court for the County of Cass, against Garrett Stansell. The plaintiff declared on the common counts in assumpsit, appending to his declaration copies of two drafts drawn by Corning & Co. upon the defendant.

This was an action upon a policy of insurance, brought in the Circuit Court for the County of Wayne, by Jay Olmstead, against the ¿Etna Live Stock, Eire and Tornado Insurance Company. The plaintiff declared specially upon the policy, and averred the loss in the usual form. The defendant pleaded the general issue, and gave- notice that it would prove that a wai’ranty in the application, as ’ to incumbrances, was false.

Case made from Wayne Circuit. This was an action of assumpsit, brought by Nathaniel W. Brooks, in the Circuit Court for the County of Wayne, against George Hargreaves and Samuel Hargreaves. The plaintiff declared upon the common counts, and gave notice that he would offer in evidence under the common counts, an instrument of which the following is a copy, viz:— “$588.00.

Appeal in Chancery from Washtenaw Circuit. Horace T. LeBaron filed his bill in the Circuit Court for the County of WashtenaAV in Chancery, against Cornelius Shepherd, to quiet his title to certain lands in Washtenaw County, of which he claimed to be in possession.

Appeal' in Chancery from Lenawee Circuit. William E. Kimball filed his bill in the Circuit Court for the County of Lenawee in Chancery, to compel Nathan S. Myers to deliver up to be canceled a certain mortgage,, executed by one George Morton and wife upon premises,. the title to which the complainant claims under Morton; the complainant alleging, as the ground of the relief sought, that the indebtedness which the mortgage was given to secure had been discharged.

This was an action of ejectment brought by Ezra C. Seaman in tbe Circuit Court for tbe County of Wayne, against John Olee, for the recovery of the possession of a parcel of land, which the plaintiff claimed by his declaration to own in fee.

This was an action of assumpsit, brought by George E. Shortridge, Thomas Rutherford, and Charles W. Short-ridge in the Circuit Court for the County of Oakland, against John Minock and Robert Hadden. The plaintiffs declared upon the common counts and appended to their declaration copies of three promissory notes, all hearing date on the same day; and gave notice that they would give the notes in evidence under their declaration. The defendants pleaded the general issue.

This was an action of trespass quare clausum, brought by John R. Baker before a Justice of the Peace for Van Burén County, against James B. Johnston, the locus in quo being described as block number six, in the village of Lawrence, in Van Burén County.

Clair Circuit. This was an action of assumpsit brought by John Atkinson in the Circuit Court for the County of St.- Clair against John Allen, to recover damages for the breach of a contract to sell and convey a lot of land. The cause was tried before the Circuit Judge, Avhose findings of facts and conclusions of law are set forth in the record.

This was an action of assumpsit, brought by Hannah Mason, as the administratrix of Charles Mason, in the Circuit Court for the County of Branch, against Storrs H. Moulton. The plaintiff declared upon the common counts, to which the defendant pleaded the general issue, and gaye notice of a set off; and by mutual consent the cause was referred to David Thompson, Esq., to examine and report thereon.

The action was ejectment. It had been tried twice. On the first trial Riopelle obtained a verdict and judgment. This was brought by Gilman, by writ of error, to 'this Court, where the judgment was reversed, and a new trial ordered. On the second trial verdict and judgment passed for Gilman. Riopelle then made application under the provisions of § 4589 of the Compiled Laws, on payment of costs, for an order vacating the judgment and granting a new trial.

This was an action of assumpsit brought by Catherine Hannin in tbe Circuit Court for tbe County of Van Burén, against Henry Hammond, to recover damages for tbe breach of a contract to sell and convey to tbe plaintiff a parcel of land.

This was an action on the case brought by David M. Austin in the Circuit Court for the County of Saginaw, agaiust the Bay City & East Saginaw Railroad Company. The plaintiff set forth in his declaration the corporate character of the defendant; the location of its road, its duty under the statute to erect and maintain fences along the sides of its road, and the neglect of this duty, in consequence of which, a horse of the plaintiff’s, straying upon the road, was killed.

<p>Practice in the Supreme Court: Alimony. Alimony is not a matter of course in the Supreme Court. When the wife was complainant below, and she appeals, there must be a satisfactory showing of the reasonableness and good faith of the appeal, and that the granting of alimony will be necessary to prevent a failure of justice, and the wife from suffering, to justify its allowance.</p>

This cause was brought into the Circuit Court for the County of Kalamazoo by appeal from the judgment of a Justice of the Peace, in an action in which Walter S. Huntington was plaintiff, and John W. Burson defendant.

Appeal in Oban eery from Lenawee Circuit. Tbe complainant filed bis bill in tbe Circuit Court for tbe county of Lenawee in Chancery, for a partition of a farm of which bis father died seized, having tbe equitable but not tbe legal title, leaving a widow and eight children.

The plaintiff in error was charged upon the information of the Prosecuting Attorney of Calhoun County that he, “on the 18th day of December, in the year one thousand eight hundred and sixty-seven, at the township of Sheridan, in the county of Calhoun aforesaid, did falsely take upon himself to act as.Moderator, and in the office of Moderator of 'School District No. One of said township of Sheridan, said office of Moderator being an office and place of authority, contrary to…

Clair Circuit. This was an action on the case brought by William X. Beers and others in the Circuit Court for the County of St. Clair, against Alice M. Beers for waste, alleged in the plaintiffs’ declaration to have been committed in taking down and carrying away a steam flouring mill situated upon the premises, the title to which- the plaintiffs held as reversioners in fee after the termination of the life estate of the defendant; which life estate she derived from her…

Appeal in Chancery from Calhoun Circuit. This was a proceeding in the Circuit Court for the County of Calhoun in Chancery in a cause wherein David Verplank was complainant, and Harvey B. Hall was defendant, to punish the defendant for the alleged violation of an injunction.

Appeal in Chancery from Clinton Circuit. Bela W. Ormsby filed his bill in the Circuit Court for the County of Clinton in Chancery, against Watson J. Barr, to restrain Barr from proceeding to foreclose a mortgage, executed by one Albright to Barr, upon premises, the title to which the complainant claims to have derived from Albright; and praying also that the mortgage may be decreed to be satisfied, and discharged of record.

Case made from St. Joseph Circuit. This was an action of assumpsit brought by the First National Bank of Sturgis in the Circuit Court for the County of St. Joseph, against William M. Watkins.

Appeal in Chancery from Livingston Circuit. The complainant filed his bill in the Circuit Court for the County'of Livingston in Chancery to compel the performance by the defendant, Loree, of a parol contract to sell to the complainant a parcel of land, which, subsequently to the alleged contract, Loree had conveyed to the defendant Green. The cause was heard upon pleadings and proofs; the Circuit Judge decreed a specific performance; and the defendants appeal to this Court.

Appeal in Chancery from Sfc. Clair Circuit. The complainant filed his bill in the Circuit Court for the County of St. Clair in Chancery, against the defendant, as Treasurer of the town of China, to restrain the collection of a tax levied by the Board of Drain Commissioners for that county, upon the property of the complainant, for the construction of a ditch under proceedings alleged to be in pursuance of Act No. 216 of the Laws of 1861, and the acts amendatory thereto.

This was an action on the case brought by John Kilgore in the Circuit Court for the County of Kalamazoo, against Caroline A. Hascall, for damages resulting from the erection by defendant of a dam across the stream called “ Big Portage,” below and down the said stream or water course, and below the premises of said plaintiff, and thereby obstructing the natural flow of said stream of water, and preventing the said stream from running through the said premises of the plaintiff…

. This case comes into this Court to review the decision of the Circuit Court in rejecting evidence offered to prove that the record of a judgment entered upon the docket of a Justice of the Peace had been amended after judgment, and execution issued upon it, by altering the name of William T. Johnson to Warren T. Johnson; which last was the true name of the party, and the amendment was made by his consent; he and the plaintiff being present when the amendment was made.

Circuit. Parsons was charged on the complaint of 'William E. O’Rourke, before a Justice of the Peace, with haying committed the crime of adultery with one Sarah M. O’Rourke, she then being the lawful wife of the complainant. Subsequently the Prosecuting Attorney for Branch County filed an information against Parsons for tbe same offense, on which he was arraigned and pleaded not guilty.

This was an action of debt brought by Ezra Berry, Executor of George A. Kellogg, in the Circuit Court for the County of Branch against William K. Delashman, Franklin L. Warren, and Tbomas J. Bridge upon a bond executed by Delashman as principal and the other two defendants as sureties.

Appeal in Chancery from Genesee Circuit. The bill in this case was filed in the Circuit Court for the County of Genesee in Chancery, to foreclose a mortgage given, by -the defendant Avery to Payne, to secure the payment of the purchase price of the property described in the mortgage.

This was an action of assumpsit, brought by Theodore H. Hinchman, John M. Hinchman and Ford D. O. Hinchman against John A. Barns and Henry A. Bury. Tbe latter was not served with process. Tbe plaintiffs declared against tbe two defendants as partners. Barns defended on tbe ground that be was a special, and not a general, partner of Bury.

This was an action of assumpsit brought by Selah Dustin, in the Circuit Court for the County of Wayne, against Asa D. Dickinson and Lothrop S. Hodges.

Appeal in Chancery from Washtenaw Circuit. The bill in this cause was filed by Jonathan D. Fosdick, in the Circuit Court for the County of Washtenaw in Chancery, on the first day of July, 1869, against Caleb Yan Husan, to redeem, after a foreclosure by advertisement and sale, a mortgage made by complainant to defendant, May 13, 1846. The foreclosure sale was made June 12, 1869.

The action was brought upon a policy of insurance issued in this state by a duly authorized agent of the company, and was commenced by service of process upon an agent of the company duly authorized under the provisions of Section 23 of the Laws of 1869 (p. 243) to receive such service.