Volume 22 — Michigan Reports

This was an action of debt commenced in the name of the People of the State of Michigan before Peter B. Austin, a Justice of the Peace for the County of Wayne, 'against Peter Navarre.

This was an action of trespass guare clausum fregit brought by Asa A. Kennedy, before a Justice of the Peace in the County of Lenawee, against Warren Gilbert.

Appeal in Chancery from Muskegon Circuit. The bill in this ease was filed by John Torrent in the Circuit Court for the County of Muskegon in Chancery, against The Muskegon Booming Company, to remove a cloud upon the title to premises which the complainant alleged to be in his possession, but to which the defendant, as the bill stated, claims a right under a lease executed by a party whose fights had passed to the complainant.

This was an action of replevin brought by Lucina B. Parsons in the Circuit Court for the County of Washtenaw, against Gilbert M. Brown for a quantity of wheat in stacks, which had been sown by defendant upon premises leased by the plaintiff to the defendant, during the term, but harvested after its expiration.

Begole was plaintiff and Oliver W. Hewitt was defendant. The plaintiff declared for the price of a quantity of lumber which had been delivered to one William Bailey, who was then engaged in building a house for the defendant, and for which purpose the lumber so delivered was used.

Appeal in Chancery from St. Clair Circuit. The bill in this cause was filed by William B.. Barron in the Circuit Court for the County of St. Clair in Chancery, against Lucinda A. Bobbins and Levi B. Bobbins, to quiet the title to three hundred and twenty acres of land in St. Clair county.

Clair Circuit. This is an action on the case brought by William A. Beers and others, heirs-at-law of Horace Beers, in the Circuit Court for the County of St. Clair, against Alice M. Beers, the widow of the deceased, and administratrix of his estate.

This was an action of trespass, brought by Sally Ann Hoffman in the Circuit Court for the County of Lapeer, against Stephen Y. Thomas and thirteen others, against all of whom on the trial the jury found a general verdict. A motion having been made for a new trial, the plaintiff below, by leave of tire Court, discontinued as to three of the defendants, and entered judgment against the others; which judgment comes into this Court by writ of error.

Clair Circuit. This action, which was brought by appeal from the judgment of a Circuit Court Commissioner into the Circuit Court for the county of St. Clair, was commenced by complaint under the provision of § 4975 of the Compiled Laws, by Daniel B. Harrington against John M. Hoffman for a forcible entry. Judgment of restitution and for costs was rendered in favor of the complainant by the Commissioner, and, upon appeal, was confirmed -in the Circuit Court.

Appeal in Chancery from St. Clair Circuit. The bill in this cause was filed by John M. Hoffman and Thomas S. Skinner in the Circuit Court for the County of St. Clair in Chancery, against John Beard, James Beard and William H. White, for a partition of premises, alleged in the bill to have been owned in the year 1825 by John Biddle, Oliver W. Miller, Robert Smart and Thomas Scott.

<p>SAME Y. PHILANDER POWERS-SAME y. LUCIAN HOWE-SAME Y. HUGH SWEET-SAME V. PERMELIA TUTTLE-SAME v. GEORGE C. BID WELL-SAME v. EGBERT W. COREY-SAME Y. THOMAS MoCULLOUGH — SAME T. COLUMBUS TUTTLE-SAME Y. HENRY R. TOMLINSON-SAME V. CHARLES m. Walker-same y. Theodore j. wells-same y. Horace d. rood, ET AL. — SAME v. HENRIETTA M. TAYLOR — SAME v. ROBERT KING-SAME Y. CALEB S. HICKS-SAME Y. ALVIN N. HART-SAME V. WILLIAM H. JENNINGS, ET AL. — SAME v. ENOCH J. WHITE et AL. — SAME Y. ALEXANDER MoLENNAN-SAME v. LUCIUS N. WADE-SAME v. GEORGE B. GREGORY-SAME Y. STEPHEN S. HICKS — SAME v. HUBBEL LOOMIS.</p> <p>Bill in equity for a partition: Not proper for the trial of legal titles. In a case where a bill was filed for a partition, and the whole title was purely legal, no obstacle existing to a trial in ejectment, and where, since the bill had been pending, there had been two trials in ejectment, in both of which the verdict was against complainant’s title, the bill in equity was properly dismissed.</p>

<p>Bills of exceptions: Settlings Where, after tlie expiration of the term at which a cause was tried, a time was fixed by consent for settling a bill of exceptions, and the parties appeared at the time appointed, and the bill was settled and comes into this court appended to the record, it will not be stricken out, because there had been-no order made during the trial term for extending the time for settling the exceptions.</p>

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

This cause was heard at the present term of the court and decided, — the court affirming the decree of the court below. (See 81 Mich., ¶. Jj78.)

The petition of the relator sets forth the incorporation of the society under the act to provide for the incorporation of mechanics’ associations, approved February 17,1857 {Comp. Laws, cli. 62); that he became a member of it and a shareholder of its stock in the manner provided by its laws, and that he had derived from such membership great advantages and profits.

This was an action brought in the name of The People, by the authority of the Supervisor of Albion,’before a justice of the peace, against Charles T. Parker, under the act of 1861, “relative to obstructions and encroachments of highways” (Laws of 1861, p. 158), to recover the penalty prescribed by that act for an encroachment upon a highway; the alleged encroachment consisting of a fence which the defendant insisted was erected before the highway was laid out.

This was an action of assumpsit brought by Adelbert F. Parsons in the Circuit Court for the county of Livingston against Alexander L. Hunter, upon a promissory note for two hundred dollars, with interest at ten per cent., payable to J. C. Fitzgerald or bearer, on or before the first day of September, 1869, a copy of which was appended to the plaintiff’s declaration.

<p>Assessments for public improvements: Recoi'ding vote: Description of improvement: Equitable estoppel: Interest of alderman; Dowers and duties of commissioners : Charter of East Saginaw. A statute, — charter of East Saginaw, La/ws of 1859, p. 911, — which requires that the vote of a city council, in certain cases, shall be entered at large on their minutes, is designed to accomplish an important public purpose; it cannot be regarded as immaterial, nor its observance dispensed with. The record of a vote that it “ was adopted unanimously on call,” — the names of those voting no otherwise appearing than by the statement of those present at the opening of the session, is not a compliance with the statute. Neither the spirit nor the purpose of the act can be satisfied without entries on the minutes showing who voted on each resolution embraced within the terms of the act, and how the vote of each, was cast; in other words, the ayes acd noes on each resolution must be entered at large on the minutes.</p> <p>Petitioners to a city council for a public improvement will be presumed to intend that the work shall be done under the city charter; and, -while they will be estopped in equity to deny the power to grant their petition, —Motz v. Detroit, 18 Mich., 595, — yet, they will not he estopped to object that the proceedings upon their petition have been conducted in disregard of the law.</p> <p>Knowledge, presumptive or actual, of the progress of a work of ptiblic improvement in a city will not estop a party from complaining of illegalities in the proceedings by which the work was authorized; and, in the absence of any evidence of previous knowledge on his part of the unlawful action, he will be in time with his protest when proceedings are instituted to deprive him of his rights.</p> <p>The vote of an alderman of a city council for a public improvement, for which he as an individual was a petitioner, is not void.</p> <p>The statute, — charter of East Saginaw, Laws of 1859, p. 901, — which requires the resolution of a city council, ordering a public improvement, to “describe the contemplated improvement,” Is substantially complied, with when-the order for the paving of a street described the improvement as “ the paving of a street with the Nicholson pavement;” and this description will include, for the purpose contemplated by the act, such incidental work as the removal of the earth for paying and the setting of curb-stones.</p> <p>The power conferred by the charter of East Saginaw upon the common council. — Laws of 1859, § 38, p. 1011, — when they shall have ordered any public improvement of “designating and directing three resident freeholders * * to make an assessment upon all the owners, etc., of the amount</p> <p>of expense in proportion, as nearly as may be, to the advantage which each shall be deemed to acquire by making of such improvements,” does not authorize the common council to give directions to the commissioners which shall govern them in making the assessment. It is the judgment of the commissioners, and not of the common council which is to determine this.</p> <p>The provision of the charter of East Saginaw, as amended in. 1861, — Laws of 1861. %50, p. 50, — which requires commissioners who are appointed to assess, the expenses of public improvements to “ make out an assessment roll on which shall be entered the names of the persons assessed, the value of the property for which they are assessed, the amount assessed,” etc., must be regarded as mandatory, and an assessment roll .which omits to state the value of the property assessed cannot be sustained.</p>

• This was au action of trespass, quare clausum fregit, brought by Asa A. Kennedy in the Circuit Court for the eounty of Lenawee, against Warren Gilbert. The alleged trespass consisted in turning thirty-two head of cattle of the defendant’s upon premises known as the Pitcher farm, and in the occupancy of Kennedy.

This was au action of assumpsit, upon a policy of insurance, brought by George B. Throop, in the Circuit Court for the County of Lenawee, against the North American Eire Insurance Company, of the city of New York.

Case made from St. Clair Circuit. This is an action of covenant brought by Simeon Hovey in the Circuit Court for the County of St. Clair against Earned Smith.

This was an action of' assumpsit brought by Colin Campbell, Thomas Linn and Robert Hosie in tbe Circuit Court for the county of Wayne against Mary White. The plaintiffs declared upon the common counts; and the defendant pleaded the general issue and gave notice of the statute of limitations.

Motion, to dismiss a writ of error. The plaintiff in error was one of the heirs-at-law and legatees of John W. Labar, deceased, of whose will the defendant in error was executor. From the order of the judge of probate allowing the account of the executor-, the plaintiff appealed to the Circuit Court for the County of Kalamazoo; where, on motion of the executor, the appeal was dismissed. Upon which the appellant sues out- a writ of error from this court.

Motion to dismiss an appeal. A bill was filed in tbe Circuit Court for the County of St. Joseph in Chancery, by Charles H. Barry, executor of John-, S. Bari’y, against John K. Briggs, setting forth the existence for many years of a partnership between John S. Barry and the defendant, which had been dissolved by the death of Barry, and praying for an account of all partnership dealings and transactions; that the defendant might be enjoined from collecting any debts or money,…

This was' an action for slander brought by John C. Forshee in the Circuit Court for the County of Washtenaw, against Addison Osborn. Upon the rulings of the. circuit judge on the trial the plaintiff recovered a verdict and judgment; which the defendant brings into this court by writ of error.

<p>Bguity: Sill to enforce a verbal agreement for a lien. A bill in equity, to enforce a verbal agreement for lion upon real estate, will not be sustained in a case where the terms of the agreement are not sufficiently clear and specific to enable the court to give effect to the understanding of the parties. See Mbwrey v. Vandling, 9 Mich., S9.</p> <p>Practice in chancery: Notice by solicitors: Suppressing depositions. A notice of a proceeding in a suit in chancery, not signed by the solicitor, nor by his authority, nor emanating from his office, may be disregarded; and testimony-taken under such a notice may properly be suppressed.</p>

<p>Charge of the court: Act of 1869. A charge to a jury will not be reviewed on error unless excepted to. In this respect the act of 1869 (No. 67), to establish the practice in charging juries, has made no change. See Hunter v. Parsons, supra¡ p. 96.</p> <p>Cross-examination: Interest: Credibility. When a witness, on cross-examination, denies having made statements which disclose an interest in the result of the trial, it is competent to show that such statements were actually made. That Interest in the result of a trial may affect the credibility of a witness, — See Crippen v. The People, 8 Mich., in; JBeaulieu v. Gicotte, 12 Mich., ISO; and Patten v. The People, 18 Mich., Slh.</p>

<p>Error to Eaton circuit.</p>

<p>Error to the Recorder’s Court of Detroit.</p>

Exceptions certified from the Recorder’s Court of Detroit. Michael Nolan, William Rogers and Peter Nicaise were charged on the information of the prosecuting attorney of the county of Wayne, that they “on the 17th day of May, in the year of our Lord one thousand eight' hundred and seventy, at the said city of Detroit, at about the hour of eleven o’clock in the night time of the same day, with force and arms, the store and shop not adjoining to or occupied with a dwelling…

This was an action of ejectment brought by George H. Russell in the Cix’cuit Court for the County of Barry, against James Á. Sweezey. Both parties claim under Hosea B. Huston, who purchased the land of the United States government in 1839. Under the charge of the court the jury found a verdict for the defendant; and the judgment entered thereon comes into this court by writ of error.

Appeal in Chancery from Ionia Circuit. The bill in this cause was filed by Honoria Brown in the Circuit Court for the County of Ionia, in Chancery, against John Brown, for a, limited divorce, on the ground that he being of sufficient ability to provide a suitable maintenance for her, — § 3228 Comp. Laws, — grossly, wantonly and cruelly refused and neglected to do so. The defendant answered; a replication was filed and proof taken.

This was an action of ejectment brought by Charles T. Gorham in the Circuit Court for the County of Washtenaw against William H. Arnold, to recover the possession of two hundred acres of land in Washtenaw county.

This was an action of ejectment brought by Jacob Klassner in the Circuit Court for the County of Berrien against Philip Donahue, who died after the commencement of the suit, when Ellen Donahue and Barney Donahue, heirs at-law of Philip, were substituted on the record as defendants. The cause was first tried in the lifetime of Philip, and a verdict was rendered for the plaintiff. A judgment was entered on the verdict, and the plaintiff obtained restitution of the premises.

This was an action of assumpsit brought by Charles A. Conklin in the Circuit Court for the County of Lenawee, against Peter De Tries and Charlotte De Tries upon a promissory note, signed by both defendants.

Appeal in Chancery from Clinton Circuit. ' The bill in this cause was filed by Edward Orr in the Circuit Court for the County of Clinton in Chancery, in aid of an execution issued upon a judgment in favor of the complainant against Jacob E. Shraft,- and levied upon premises the title to which was in Mary Alvira Shraft, the wife of the judgment debtor.

This was an action of assumpsit, brought by appeal from the judgment of a , justice of the peace into the Circuit Court for the County of Kent, wherein Thomas McCarty was plaintiff and John A. Turner defendant. The plaintiff declared for work and labor performed by him for the contractor for street paving in the city of Grand Eapids.

Error 'to Wayne Circuit. This was an action brought by John Stegemann in the Circuit Court for the County of Wayne, against Henry Brushaber and John Brushaber for false imprisonment. The declaration contained the usual count for an assault and battery. The defendants pleaded the general issue.

This was an action on the case brought by Sophara Litogot in the Circuit Court for the County of Wayne, against Andrew Threadgool for the seduction of the plaintiff’s wife. The defendant pleaded the general issue. The cause.was tried by a jury who found a verdict for the plaintiff of five hundred dollars; and the judgment entered thereon, the defendant below brings into this court by writ of error.

This was an action of assumpsit brought by appeal from a justice’s judgment into the Circuit Court for the County of Washtenaw, in a suit between Henry S. Dean and Sedgwick Dean, plaintiffs, and Charles A. Chapin, Charles H. Richmond, and Ebenezer Wells, defendants. The action was for the purchase price of thirty-six oil barrels. The defendants pleaded the general issue, and gave notice of set-off.

<p>Case made: Finding. The Supreme Court has no jurisdiction, on a case made, to review the findings of a Circuit Judge upon the weight of evidence, nor can the parties, by stipulation, confer it.</p>

This was an action of asstmpsit, brought by Edward W. Ladd, in the Circuit Court for the County of Saginaw, against the Methodist Episcopal Church of East Saginaw. The plaintiff declared upon the common counts in assumpsit, serving a bill of particulars, setting forth his demand for labor and materials for slating the spire of defendants’ church.

The plaintiffs below, as administrators of the estate of' Harvey Hamilton, brought their action in the Circuit Court of the County of Kalamazoo against Edward Gilkey, of replevin for a horse, which belonged to their intestate at the time of his death.

<p>Appointment of administrators: Equity jurisdiction. The court of chancery in this state has no power to remove an administrator for an abuse of his trust. Complete jurisdiction over the subject is vested, in the court of probate; and the powers of the court of chancery are limited to some purpose auxiliary to the relief sought in the probate court.</p> <p>Poiuers of administrators: Possession of real estate: Jw'isdiction in equity, The power conferred upon an administrator by the statute (Qomp. L. § 290k) to tafee possession of the real estate of deceased, is not to be exercised unless it is necessary; and if he should exercise it arbitrarily, or oppressively, he may be restrained by the process of the court of chancery.</p>

<p>Appeal in Chancery from St. Joseph Circuit.</p>

<p>Appeal front justice's court: Appearance by next friend: Waiter. A cause in which the plaintiff has appeared, by his next friend, having been appealed by the ‘defendant from the judgment of a justice of the peace to the Circuit Court, and no question having been made in the appeal papers, as to the regularity of such appearance, it must by assumed for all further purposes in the appellate court, that the appointment of the next friend, and his appearance before the justice, were regular.</p> <p>Quantum, Meruit: Rescinded contract: Measure of damages. In an action for work and labor upon a quantum, meruit, in a case where there had been a contract which had been broken by the defendant, the measure of damages will be what the services were worth, — not the price named in the contract.</p>

This was an action of debt brought by Eeuben Vanderhoof for the use and benefit -of Heber Walsh, in the Circuit Court for the County of Ottawa, against Peter F. Phansteihl, Jan Trirape, and Patrick Gr.

<p>Contempt: Non-payment of alimony. A party will not he brought into contempt for non-payment of alimony, unless a proper demand of payment and refusal is shown.</p>

This was an action on the case brought by George L. McAllister in the Circuit Court for the County of Hillsdale against Homer E. Josselyn, for false imprisonment and malicious prosecution.

This was an action of replevin,'brought.by George Green, Charles H. Camp and George Brooks, in the Circuit Court for the County of Bay, against George Wetherbee, for one hundred and fifty-eight thousand black ash barrel hoops, alleged to be of the value of eight hundred dollars. The hoops were cut upon a tract of land which Green, one of the plaintiffs, and one Thomas Sumner had owned as tenants in common.

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, for a tract of land known as private claim No. thirty-nine, containing two hundred and eight acres of land. The defendants pleaded the general issue.

Certiorari: To the Township Board of White Lake to review the proceedings for the removal of Levi F. Stock-well from office as moderator of school district No. 4 of the Township of White Lake.

<p>Bill in equity: Lessee in possession: Injunction to prevent irreparable mischief. A bill in equity is not the appropriate remedy to obtain possession of premises from a tenant holding over after the expiration of a lease; nor to try the title to premises which such a tenant sets up to maintain his possession after such expiration: And though a court of equity might, in aid of proceedings-at law-to recover possession, and in a proper case, restrain, by injunction, such a tenant from committing irreparable mischief pending the proceedings; yet, it will not take original jurisdiction for such a purpose.</p>

Appeal in Chancery from Kalamazoo Circuit. The bill in this cause was filed by Charles W. Jones, Ephraim Jones, and John J. Johnson, m the Circuit Court for the County of Kalamazoo in Chancery, against Willard Jones, Gilbert C. Jones, and James Bassett, administrators of the estate of Harvey Jones, deceased, Timothy Smith, Allen Eossman, and Augustus McKinstry, to procure the discharge of record of, a mortgage executed by Ephraim Jones to Harvey Jones, in his lifetime, upon…

<p>Error to St. Joseph Circuit.</p>

This was an application by Peter S. Brinkerhoff, to the Circuit Court for the County of Hillsdale, for a mandamus to compel Timothy E. Dibell, one of the Justices of the peace for Hillsdale county, to return to the said Circuit Court certain proceedings had before him, commenced upon the complaint of Elmira C. Keefer against Brinkerhoff, for holding oyer certain premises leased by Keefer to him, and, as she alleged, contrary to the conditions and coyenants of the lease under…

Appeal in Chancery from Ionia Circuit. The bill in this case was filed by Alanson E. Cornell, in the Circuit Court for the County of Ionia in Chancery, to redeem two parcels of land, which the complainant, on the 5th day of December, 1860, conveyed by a warranty deed to the defendant, Joshua S. Hall; which deed, the complainant avers, was intended as a security for a loan of seven hundred and fifty dollars, at that time paid by Hall to complainant; a part of it being paid in…

This was an action of • trespass on the case brought by David Sweitzer, in the Circuit Court for the County of Wayne, against George Miller, for an assault and battery committed by Miller upon Sweitzer. The defendant pleaded not guilty. On the trial evidence was offered by the plaintiff to show the participation by the defendant’s wife in the acts of violence for which the suit was brought, and of the consequences of such acts.

Certiorari; To George M. Buck, Esquire, Circuit Court ■Commissioner for the County of Kalamazoo, to review proceedings for the dissolution of an attachment.

Motion to dismiss certiorari on the grounds: 1. Held: at which the moderator of said district acted as chairman (and setting forth a transcript of the proceedings had at said meeting which resulted in the election of said Peters, by a unanimous vote, as director, to fill the vacancy created by the removal of said Crawford therefrom); that said Peters filed his acceptance in writing of…

<p>Covenant of warranty: Estoppel. A warranty deed from a patentee of the United Stales, dated and purporting to be executed long before the issuing of the patent, operates by way of estoppel as against the grantor in such deed, and all persons afterwards claiming title through him, to transmit the title to the grantee therein.</p> <p>Clerk's certificate of official capacity, etc.: Judicial notice. A clerk’s certificate, attached to a deed executed and acknowledged in Franklin county, Massachusetts, as to the official capacity of the Justice of the peace, who took the acknowledgment, etc., which describes the certifying officer, as clerk of the judicial courts of the commonwealth of Massachusetts, for the county of Franklin, and which ip signed hy the clerk, and sealed with the seal of the Supreme Judicial Court of said commonwealth, is a sufficient compliance with the statutes of this state. (§ 2729, Comp. Land Laws of 1861, p. 17, § 5.) This court will take judicial notice that the Supreme Court of Massachusetts is a court of record.</p> <p>Evidence of marriage, legitimacy and sole heirship. In support of a deed, which purports to be {executed by a widow as such, and by a son as sole heir of a deceased, who was the last prior owner of the lands described therein, depositions, taken by stipulation, of said widow, who speaks of said deceased as her late husband, and states that she knew him in his lifetime; that he died Oct. 35, 1866; that he left a widow and one child; that she is his widow, and that the other grantor in said deed is his son and his only child; and of the son, and his wife, and others who appear toffiavebeen neighbors, and to have known the family well, all to the same effect, in the absence of any opposing testimony, and when the death of the ancestor is clearly shown, and no question of identity is raised, are ample, original and sufficiently direct evidence of the marriage of the widow with said deceased, and of the legitimacy and sole heirship of the son.</p> <p>Title by priority of record: Purchase in good faith, and payment of a valuable consideration, both essential. A defendant’s title, resting on 'priority of record of a second deed, will prevail against that of a plaintiff who claims through a prior unrecorded deed from the same original grantor, if any one of the subse.. qaent mesne purchasers through whom such defendant derives title, purchased in good faith, and for a valuable consideration, without notice of said prior unrecorded deed. — Camp. L., § 27IS. But both a purchase in good faith, and the payment of a valuable consideration, are essential; and these are in their nature separate and distinct questions.</p> <p>Presumption of payment of valuable consideration for quit-claim deed. Where it does not expressly appear, from the record in this court, whether certain quitclaim deeds, introduced in evidence on the trial, purported on their face to have been given for a valuable consideration, but it seems to have been assumed by the counsel, in their mode of examination, arguments and requests to charge, and by the court below, in the charges given, as quit-claim deeds ordinarily' and almost universally do express such consideration, this court will presume that such is the fact.</p> <p>Burden of proof of payment of valuable consideration. The burden of proof is upon the defendant, who claims title by virtue of priority of record, against a prior but unrecorded deed, to show affirmatively the payment of a valuable consideration, and that by some other evidence than the mere recital of it in the deed.</p> <p>Campbell, Ch. J., dissenting and maintaining that a recorded deed is prima facie evidence, as against an unrecorded one, of everything necessary to give it validity.</p> <p>Burden of proof of purchase in good faith. The good faith of the purchase is only required to be shown by the purchaser by proof of the record, on which he had a right to rely if he had no notice of the prior deed from any other source ; and if he had such notice, this is an affirmative fact to be proven by the party claiming under the prior unrecorded deed.</p> <p>Record of certified copy of the record of a deed not evidence. The record in one county of a certified copy, from the register of deeds of another county, of the record in such other county, is not admissible in evidence.</p>

<p>Error to Washtenaw Circuit.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Sight <tf possession under contract for sale of land. A contract for the future -salo and conveyance of lands gives no present right of possession to the vendee, without special provisions to that effect.</p> <p>Where by an agreement between the owner of lands and the trustees of a church adjoining, the former agreed, on conveyance to him by the church of both parcels, to re-convey to the trustees certain premises described, to be used for none but specified purposes, and the trustees were to obtain lawful authority before the transaction could be completed, it waB held that until they obtained authority, and conveyed to the other party, he was not required to take any steps on his part for their benefit.</p> <p>What a revocable license. Verbal permission to use a portion of the premises ultimately. to be conveyed to the trustees, for separate hprse-sheds, for the individual convenience of attendants on the church, building them for their own use, was a revocable license, and a resumption of possession, and fencing in the property, allowing a sufficient time, after notice was given, to remove the sheds, was lawful, so as to render the subsequent removal of the fence and sheds a trespass.</p> <p>What not a lease. A license for such a use of the land, for the convenience of persons attending public worship, did not amount to a lease.</p> <p>Official character, how proved. Where the question of official character arises collaterally, parol evidence is admissible to show an actual incumbency de facto.</p> <p>Matters in aggravation of trespass: Malice: Arrest of owner. In actionB of trespass, evidence of malice and attendant circumstances may be given in aggravation of damages; and the rule ia the same where the facts in aggravation might have been made the ground of a separate action. The maliciouB arrest of the owner of land, to keep him out of the way during a trespass on his lands, was proper .to be shown in an action for the trespass.</p> <p>■ Costs in trespass on lands. Costs are given to the prevailing plaintiff in trespass, without reference to the amount of damages recovered, in all cases where the title to land, or any right to any easement therein, or to overflow it, or do any other injury thereto, is put in issue by the pleadings, or brought in question on the trial.</p>

<p>Error to Kalamazoo Circuit.</p> <p>The facts are fully set forth in the opinion.</p>

Appeal in Chancery from Oakland Circuit. The case was heard below on pleadings and proofs, and a decree passed for complainant, from which the defendant appealed. The nature of the pleadings, and the facts established by the proofs, are sufficiently stated in the opinion.

<p>Error to St. Clair Circuit.</p> <p>The opinion contains a full statement of facts.</p>

<p>Waiver of formal protfs of loss under policy of insurance. The formal proofs of loss requires by a policy of insurance may be waived, and when a party acts in accordance with the instructions of an agent who has assumed to make investigations, he cannot be required to do more.</p> <p>•Consent to additional insurance; hy whom to he signed. A policy declared on its face that “If, without written consent hereon, there is any prior or subsequent insurance, this policy shall be void :" — Held, that such consent, in the absence of evidence dispensing with such signature, must be signed by the person whose signature was declared necessary to the validity of the policy and its extensions.</p> <p>Unsigned consent, how made binding: Ratification: Estoppel. An unsigned consent to additional insurance could only be upheld on proof of authority to bind the insurers in that way, or upon such recognition or action by them as to amount to a ratification or estoppel. The action of an agent, neither authorized nor held out as having authority, would not bind them. They are governed by the same laws of agency applicable to any one else.</p> <p>A policy, forfeited by breach of condition, cannot be revived by any act of waiver or estoppel, unless done upon full knowledge of the facts. And to constitute an estoppel there must be such conduct on the part of the insurers as would otherwise operate as a fraud on the other party who has taken some action to his own prejudice in reliance upon it. Where nothing has been done by their authority, express or implied, or where no act has been done by the insured in honest reliance on such waiver, there can be no estoppel.</p> <p>Attempt to defraud by nictating conditions of policy, effect of. Any attempt to defraud the insurers by violating the conditions of the policy, would prevent a recovery.</p>

<p>Application of payments. Payments made from time to time, without application by a debtor who has received a discharge in bankruptcy, upon a running, account for goods sold at different dates, partly before and partly after the granting of the discharge, where the creditor had no notice of the bankruptcy proceedings,, and was not named as a creditor in the bankrupt’s schedules, and wher? the payments made, after the discharge was granted, exceeded in amount the goods purchased after that time, may be applied by the creditor to the items first due in the account.</p> <p>An error resting upon technical hut inequitable grounds must appear clearly on the record. A judgment will, not be reversed to enable a defendant to avail himself of a possible defense which, even if good in law, is without equities, unless the. error clearly appears Horn the record,</p>

<p>Error to Oakland Circuit.</p> <p>A statement of the case appears in the opinion.</p>

<p>Information in the ■ nature of a quo warranto% The nature of the case and the facts sufficiently appear in the opinion.</p>