Volume 23 — Michigan Reports

<p>Case made after judgment from Wayne Circuit.</p>

<p>Administrator's accounting: Collusive allowance of claim for his own benefit* open to examination in subsequent suit. Upon the trial of an appeal by one of the next of kin and heirs at law of a decedent from an order of the judge of probate, allowing the final account of the administrator of such decedent’s estate, evidence that such administrator purchased claims against the estate he was administering upon, with the assets of such estate, and had them assigned to the widow of the decedent, who was his sister, cannot be excluded on the ground that it impeaches the award of the judge of probate, who, acting as commissioner, had allowed such claims against the estate, in favor of the several claimants, for the benefit of such widow. Such evidence would have tended to show that the administrator acted fraudulently and collusively, in permitting the allowance of the claims in favor of the widow, and he cannot be heard to say that a decision thus obtained is unimpeachable and a shield of defense to him.</p> <p>The right of trial by jm'y. This cause having been on trial by a jury, while the jury were absent deliberating on their verdict, the appellee moved the court to decide the cause without a jury, on the ground that the issues were, by law, properly triable by the court alone. The jury soon coming in, and announcing their inability to agree, the court discharged them, and then decided, against the objection of the appellant, to try the case without a jury, and afterwards, upon the evidence taken before the jury, the parties consenting that the evidence need not be retaken, affirmed the order of the judge of probate. Held* that this was error; the appellant had the right to a trial by jury, and it was the duty of the court to impannel a new jury to try the cause, unless the parties waived it.</p>

Clair Circuit. Seeley brought ejeqtment in the circuit court for the county of St. Clair, and declared as follows: “ Edwin E. Seeley, plaintiff in this suit, by John Atkinson, his attorney, filing this declaration as commencement of suit, complains of Henry Howard, defendant in this suit, in a plea of ejectment. “For that, whereas, the said plaintiff, on the first day of June, in the year one thousand eight hundred and seventy, was possessed of the following real estate and…

The proceedings, except the form of the affidavit for writ of certiorari, and of the return of the justice of the peace to such writ, are sufficiently stated in the opinion.

Clair Circuit. This was an action of ejectment, brought by Boothrovd against Engles.

<p>Error to Wayne Circuit.</p> <p>The opinion contains a sufficient statement of the case.</p> <p>Motion for special damages.</p>

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

<p>/S'ale of leasehold interest for taxes, not breach of tenant's covenant to pay taxes. On the trial of an appeal from a circuit court commissioner, in a proceeding under chapter 150, Compiled Laws, by a landlord to recover possession of certain city lots, from a tenant who had covenanted to pay all taxes except for pavement, on the ground of non-payment of a certain sewer assessment, it appeared that a portion of said assessment had been paid by the tenant, and that the leasehold interest of such tenant, together with buildings erected by the tenant on said lots, had been sold by virtue of > warrant for the collection of the residue of such assessment, for more than sufficient to pay the same, and that the proceeds of such sale were applied to the payment thereof.</p> <p>Held, That there was no breach of the terms of the lease in reference to pay. ment of the taxes. Whether the sale was valid or not, the tax has been paid by taking the property, not of the landlord, but of the tenant, and the effect is precisely the same as if the tenant had taken the money from her pocket and paid the assessment without a sale.</p>

<p>Error to Wayne Circuit.</p> <p>The opinion contains a statement of facts.</p>

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

Nothing need be added to the statement of the case as given in the opinion, except the requests to charge, which, were all refused, and that portion of the charge as given which appears in the record.

<p>Deposition: Objection waived. An objection made before an officer taking a deposition to be read in evidence on the trial of a cause, to certain testimony as incompetent, is waived, unless insisted upon when the deposition is offered in evidence upon the trial.</p> <p>An assignment of error based upon such objection, which had been thus waived, is not well assigned.</p> <p>Indorser may make himself liable though not duly notified. An indorser of a promissory note, who has not been duly notified of the dishonor of the note, so as to become liable upon it, may so act as to waive his defense upon that ground. And when such indorser, with full knowledge that he has been discharged from liability by failure of such notice, states to the holder of such note that he expects to have to pay the note, but requests such holder to try ■ and collect it of the maker, he thereby recognizes his liability to pay the same.</p> <p>Certiorari to justice of the peace: Evidence not to he weighed. Ok certiorari from the circuit court to a justice of the peace, the only question raised hy a general assignment that the justice erred in rendering judgment as he did, is, whether there is any evidence from which the conclusion of the justice may he drawn. The weight of the evidence will not he considered.</p>

<p>Error to Bay Circuit.</p> <p>A sufficient statement'of tbe case appears in the opinion.</p>

Stewart was informed against in the circuit court for the county of Bay, for breaking and entering in the night-time with intent to commit larceny, an office not adjoining to, or occupied with, a dwelling-house, no person lawfully therein being put in fear, and for feloniously stealing, taking, and carrying away from said office, eighteen spoons, one cake basket, six knives, and six forks, of the value of sixty dollars, of the goods and chattels of Henry A. Braddock, then…

<p>Error to Oakland Circuit.</p> <p>Tbe statement of facts in tbe opinion is sufficiently full.</p>

<p>Bond of indemnity; What will satisfy condition of. In an action upon a bond given to one of a firm upon tbe sale of his interest in the copartnership, conditioned for the payment of the debts and liabilities of the firm, and to indemnify the partner so selling therefrom, proof of the payment of debts and Habilites of such firm to the amount of the penalty of the bond, though made by the purchaser of such interest, in conjunction with the other member of such firm, will prevent a recovery.</p>

This was an action of ejectment brought in the circuit court for the county of Wayne, by Crane against Reeder and others. There was judgment for the defendants in the court below, which was brought by plaintiff to this court for review on writ of error, and the judgment below reversed and a new trial awarded at the April term, 1871, of this court (See 22 Mich., S22), but no remittitur had been taken to the court below.

<p>What not a dam within Comp. L. $5790. Evidence that the defendant injured a structure of plank built in the bank of a river, in a place where the said bank had been carried away by former freshets or inundations, and not erected across the channel of the river, in the absence of proof that such injury drew off the water contained in any mili-pond, etc., will not support a conviction upon a complaint based upon § 5790 Comp. Laws. Such structure is not a dam within the meaning of said statute.</p> <p>Had such structure constituted one of the wings of a dam or anything built into the bank by way of anchoring, protecting, or extending the dam, it might be regarded as a part of the dam itself; but not so of an independent structure built to support a break in the bank, and only accomplishing the same purpose which was answered by the bank in its natural condition.</p> <p>Practice in the supreme court on criminal exceptions: Nolle proseguí. Where a defendant was entitled to an acquittal on the ground that the facts in evidence, if they made out any offense at all, did not tend to establish the one charged, this court, when the cause is brought here on exceptions, will not order a new trial, but will direct a nolle prosequi to be entered.</p>

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

<p>Contract of sale not ordinarily avoided fw depi'eciaiion of value on the purchase. A contract of sale cannot usually be avoided for an undervaluation, or because a party in bargaining has sought to abate and depreciate the price by the common bantering between buyer and seller. Where parties stand on an equal footing, the expression of opinions as to yalue will not usually be considered so material that misstatements will amount to fraud.</p> <p>Concealment of material facts, coupled with misrepresentations that prevent investigation,, fraudulent. But where the purchaser, residing near land in Michigan, had fall knowledge of its situation and valúe, and the owner, residing in Eastern Pennsylvania, had no adequate knowledge on the subject, and the former procured letters of recommendation from persons in the confidence of the latter, and obtained a contract of sale at much less than the value of the land, by deceiving him as to the yalue, and by representations that were designed to prevent, and did prevent, any such delay as would have enabled him to inform himself correctly, the agreement was held voidable for fraud, and the court refused to enforce it.</p> <p>Where one induces another to abstain from seeking information, even mere concealment of material facts may become fraudulent, and a party is held strictly accountable for all of his representations under such circumstances.</p> <p>Deceit: Fraud. Relief will not be refused to the vendor in such a case, merely because a sharp business man might not have been deceived. Where a person intending to commit a fraud practices such arts as are designed to overreach the person he deals with, and the latter, without fault or unreasonable neglect, is actually defrauded, redress will not be denied to the party injured.</p>

<p>Unjust compromise when not to be set aside; Refusal to pay without litigation ordinarily not legal fraud or duress. A person knowing the facts of his case, and having means of reflection and consultation with his friends, cannot be relieved against the consequences of Ms own want of firmness in yielding to the arrogant claims and threats of civil litigation from an adverse party, and submitting to an unjust compromise. There is no legal fraud or duress in ordinary cases in refusing to pay or settle without litigation, and every one is expected to use reasonable firmness in claiming his rights.</p> <p>No fiduciary relation between insurance adjuster and insured, ordinarily: Fraud. An insurance adjuster, who disputed the claims of a person insured, and occupied a hostile position throughout the negotiations, and gave his opinions falsely concerning the leghl rights of the parties, on questions of law, and on facts, where the assured had the same knowledge or means of knowledge with himself, cannot be regarded as occupying any fiduciary relation which would entitle the assured to rely upon his representations; and a settlement hastily made with him under such circumstances and under a threat that payment would not be made without suit, will not be set aside for fraud. The insured was hound to inform himself of his rights before acting and to stand upon them, and failing to do so, is himself responsible for the loss.</p> <p>Costs denied: Scandalous matter in answer. The answer made certain suggestions intimating that the fire, under wMch the loss happened, was caused by the fraud of complainant; and the adjusting agent, who suggested it, repeated the same insinuations in Ms testimony, without the least foundation in fact.</p> <p>Held, — That the introduction of such scandalous matter should be punished hy withholding costs from the defendant, although prevailing in the suit.</p>

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

Case made after judgment from Washtenaw Circuit. This was an action of replevin, commenced in a justice’s court by Cook against Bassett, to recover possession of a cow. Bassett interposed a plea in abatement, the substance of which is given in the opinion. This plea was demurred to and the demurrer sustained. The defendant thereupon pleaded the general issue, with notice, and the cause proceeded to trial, which resulted in a judgment in favor of the plaintiff.

Exceptions certified from St. Clair Circuit. The defendant was charged with the abdnction of Mary L. Cottrell, a female under sixteen years of age, for the purpose: 1. Of marriage; 2. of concubinage; 3.- of prostitution; each purpose being alleged in a separate count. The plea was not guilty, and the verdict was guilty as charged in the second count.

<p>Error to Bay Circuit.</p> <p>Tbe facts are fully stated in tbe opinion.</p>

<p>Appeal in Chancery from "Wayne Circuit.</p> <p>The opinion contains a sufficient statement of the nature of the pleadings and of the facts proven.</p>

<p>Error to Bay Circuit.</p> <p>The nature of the case and the facts are sufficiently stated in the opinion.</p>

Appeal in Chancery from Wayne Circuit. The bill avers in substance : 1. That on May 24, 1836, Antoine Dequindre, then owner of the Dequindre farm, and tbe Detroit and Pontiac railroad entered into the agreement in writing, set out as Schedule A (a copy of which appears in the opinion). 2. That on April 2, 1836, said railroad company had acquired from the owners of the Witherell farm a right of way, fifty feet wide, along the westerly line of said farm. 3.

<p>Parol trusts in personal property. To establish a trust in personal property upon parol evidence, especially after the lapse of considerable time, the evidence must be very clear and satisfactory, and find some support in the surrounding circumstances and in the subsequent conduct of the parties.</p> <p>What not sufficient proof of such trust. Where a wife undertakes to establish such a trust in her husband, for her use and benefit, by transfer from her father of his personal property, — especially when such alleged trustee, although a defendant in such suit, is the main witness for the complainant, — and the evidence discloses that for some time prior to such transfer he hadacted as agent for complainant’s said father, in the management of such personal property; that there was nothing in the externals of the new arrangement which was inconsistent with a continuance of the same relation; that after such transfer was made, said alleged trustee gave back a receipt, wherein he undertakes to account to complainant’s said father, his administrator or assigns, for the mortgages assigned, whenever called upon, and .subsequently returned and delivered to said father portions of said property to the value of five thousand dollars, and to the wife of said father, other portions; that upon the death of said father, intestate, he procured himself to be appointed administrator upon the estate, and inventoried the property in question, as pertaining to such estate; that he never mentioned the existence of such trust to his said wife until after he had ascertained, nearly three years after such transfer, that the widow of said deceased was entitled of right to a portion of said property, and to dispose of it by will, and that said widow had so disposed of the same to the other defendants.</p> <p>Held, — That such evidence is insufficient to sustain the alleged trust.</p>

<p>What a sale by the acre. Where land is sold by virtue of the acceptance, by the purchaser, of a proposition made to him by the vendor, in writing, naming the nufiiber of acres, and proposing to sell it “ together with the house thereon for the sum of thirty dollars for each acre of land and fifty dollars for the house thereon,” and the aggregate purchase price paid, and secured to be paid, amounts to the same sum which the number of acres named in the proposition would amount to at the price named, with fifty dollars added for the house, it is to be regarded as a sale by the acre.</p> <p>Fraud of agent: Effect of. And where a person, who acted as the agent of his wife, who owned the land, in making such sale and in taking a mortgage for the deferred payments of the purchase price, subsequently became the assignee of said mortgage, and filed a bill to foreclose the same in his own name, he will be treated, as to all equities growing out of fraud or deceit on his part in the making of such sale, directly as the vendor and mortgagee.</p> <p>Fraud in sale of land: Reforming deed: Reduction from purchase price. Where such agent of the vendor, when he made the said proposition to sell, and when the deed was delivered to the purchaser, knew that the land in question contained twenty acres less than the number represented in said proposal, and then had in his possession the minutes of two surveys which showed such deficiency, and also knew that the purchaser of said land supposed, from representations made to him by such agent, that he was purchasing the full number of acres named in said proposal, in thus misrepresenting the quantity, and making the sale for a price corresponding to the larger quantity, he was guilty of a deliberate fraud.</p> <p>And where the deed, conveying the land upon such purchase, contained no covenant of warranty as to quantity, and was surreptitiously altered after drawn, and before execution, without the knowledge of the conveyancer or the purchaser, by the addition of the words, “ said to contain five hundred fourteen and sixty-eight hundredths acres, be the same more or less,” — such purchaser, upon discovering the deficiency, might sustain a bill for reforming said deed or for a deduction from the purchase price.</p> <p>Value of deficiency in land on fraudulent $ale> deducted from purchase-price mortgage on foreclosure. Such deduction will be allowed in favor of the grantees of such purchaser in a suit, for the foreclosure of the mortgage given by such purchaser for a portion of the purchase price of said lands, instituted by such agent of the vendor as assignee and owner of said mortgage.</p> <p>Payment by note: When it detaches from lien of mortgage. Where such purchaser, while said mortgage and the bond to which it was collateral wa£ held by a trustee of said vendor, gave to said trustee his promissory note, for the amount of interest then accrued and in arrear, bearing interest at a higher rate than that provided for by said bond and mortgage, and the course of action of . such trustee indicates clearly the intention to treat such note as payment, — it will have the effect to detach the amount thereof from the Hen of the mortgage.</p> <p>Intention to recave note as payment: What acts proof of • Where such trustee, after having taken such promissory note, took a new note from such purchaser for the interest accrued upon the former note, and receipted that amount of interest upon said former note, and afterwards put said smaller note in judgment, although the same remains unpaid; and where, subsequently and after said : mortgage all became due, such- purchaser entered into a written agreement to pay a higher rate of interest than that borne by said mortgage on all the balance due on said mortgage from the date the same all became due, “the amount to be ascertained to-morrow,” and the account of payments and calculation of interest made in writing, in pursuance of such agreement, credits said larger note as a payment, and the -balance is made out xipon this basis precisely as if the amount had been paid in cash, — these circumstances clearly indicate the intention to treat such note as payment, and to detach, that amount from the Hen of the mortgage.</p> <p>Agreement to pay higher rate of interest: Consideration: Forbearance. Where there has already been forbearance on the part of a mortgage creditor, at the request of the mortgagor, on the faith of a verbal promise to pay a higher rate of interest than that borne by the mortgage, and the mortgagor is anxious for further extension without reference to any particular period, and executes a written agreement to pay such higher rate of interest from the date of the maturity of such mortgage until the principal shall be fully paid •without specifying any time of payment, such prior forbearance is a sufficient consideration for the promise to pay the additional interest up to the date of the agreement; and any forbearance which took place after that on the faith of the agreement is a sufficient consideration for rhe promise to pay such additional interest till fully paid; and as between the mortgagor and the mortgagee or holder of the mortgage, such agreement would be valid and have the same effect as if the original bond and mortgage had provided for such rate of interest after maturity till fully paid.</p> <p>Agreement by mortgagor to pay highei' rate of interest, made after maturity of mortgage, not binding upon those who purchased from him before maturity of , mortgage. But where, at the time such agreement was made, and even before the maturity of the mortgage, the mortgagor had sold out all the land covered by the mortgage, in separate parcels to various persons, as to these purchasers it wag txo more competent for the mortgagor to increase the mortgage debt by any snch agreement than to affect them by an additional, subsequently-executed mortgage for the increased sum, and. such agreement only, binds the mortgagor personally; and the lien of the mortgage upon the lands so sold is only for the amount of the principal, with interest, as provided in the original bond and mortgage. . . • , ></p>

<p>Cross-replevin: Former judgment reversed. In an action of replevin brought by W against B and C, where it appeared that 0 had before replevied the same property from W in a justice’s court, and judgment had been rendered by such j ns tice in favor of W for a return of the property; that after 0 had given notice to the justice of his intention to remove the cause by certiorari to the circuit court, and within four days after the judgment the justice issued his precept for the return of the property to W, which was executed the same day; that on the next day the writ of certiorari for removing the canse to the circuit court, pursuant to the notice before given, was served on the justice; that on the following day B, at the request of C, served upon W a notice of the removal of said cause and a demand for possession of the property, and thereupon obtained peaceable possession thereof and delivered the same to C; and that subsequently, and on the same 'day, while said property continued in the peaceable possession of C, the writ in the present cause was Bued out and the property taken upon it and delivered to W, — it was competent to show that the property originally belonged to C and was taken by W from- his possession in his absence and without his knowledge or consent, and that the judgment in said prior cause had been reversed upon said writ of certiorari.</p> <p>Feplevin: Possession pending suit. Any thing going to show that the plaintiff in replevin had no right to the possession when he commenced his suit is a complete bar to the action. — Pelden v. Daing, 8 Mich.,- 500. By force of the first writ of replevin, C became entitled, as against W, to the possession during the pendency of that suiti and, without questioning the regularity of the precept for return and its execution' after notice of the plaintiff’s intention to remove the canse and before the expiration of five days after judgment, C had the right as against W, during the pendency of the first suit, to retain the' possession which he had peaceably acquired, after completing the remaining steps required by law for the removal of the cause. The completion of the proceedings for said removal suspended the farther operation of the judgment of the justice and left the writ by which the suit was commenced in legal force, and W was no longer in a situation to assert any right to possession by force of said judgment or of the precept for return founded upon it.</p> <p>Fetation: Plea puis darrein continuance, when unnecessary. The first act for the removal of the cause having been performed before the precept for a return was issued, the doctrine of relation afforded protection to C’s possession subsequently acquired, against the pretensions of W, based upon said judgment. Bor that purpose the subsequent steps for the removal of the cause/ as well as the judgment of reversal upon the writ of certiorari, related back to the time of the notice which constituted the first step in the proceedings for such removal; and although said judgment of reversal was rendered after the last continuance of this canse, no plea puis darrein continuance was necessary.</p>

This is an action of trespass brought by Isaac Applebone, a minor, by his next friend, Isaac Levi, against Samuel Swift and Henry Swift, to recover damages for personal injuries received by plaintiff from the dogs of defendants. The declaration contains three counts, the first and third of which are founded upon the common-law liability for such injuries, and the second is based upon the statute (§ 16J¡5, Comp.

The judgment in the justice’s court was for plaintiff, which was reversed by the circuit court. The ■facts upon which the questions decided arise are sufficiently set forth in the opinion.

<p>Application for mandamus.</p> <p>The facts are fully set forth in the opinion.</p>

This was an action of trespass brought by Hiram Arnold, against Nelson B. Nye, John C. Mead, Reuben Boss, George M. Osborn, John N. Gott, Amos C. Blodgett, 'John S. Henderson, Jonathan Sprague, and William A. Moore, for taking and carrying away certain goods and chattels belonging to said plaintiff.

This was an action of trespass brought by William BL H. Smith and Eugene Smith, against Edward Webster and Benjamin E. Courter, in the circuit court for Jackson county, for entering upon plaintiffs’ lands in Saginaw county, and cutting, and carrying away hemlock and pine-trees. The judgment below was for defendants, and plaintiffs-bring the case, to this court by writ of error.

Exceptions certified from the Recorder’s Court of the city of Detroit. The defendant was charged with the larceny from the Lake Shore & Michigan. Southern Kailway Company of three pairs of Arctic overshoes, seven pairs of boys’ boots, twenty-one shoe-brushes, one counter-brush, two pairs of gaiters and one box of hats.

This was an action of assumpsit, brought by Frederick Haskell and John Barker, against Daniel F. Hunter, Wilson Homer, Noah Hitchcock, Milton W. Taylor and Thomas Hubbard, to recover damages for breach of a contract on the part of the defendants to sell and deliver to the plaintiffs, at the Michigan Central Railroad dock at; Chicago, Illinois, at the opening of navigation, in 1864, or soon thereafter, one hundred and fifty thousand feet of first and second clear pine…

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

Appeal in Chancery from Eaton Circuit. This was a foreclosure bill filed by Hiram Sibley against Jennie Baker, Alonzo Baker, Nelson G-. Isbell and O. E Winchester, trustee for the Winchester Repeating Arms Company. The facts are sufficiently set forth in the opinion.

Appeal in Chancery from Kent Circuit. This is a bill filed by Charles W. Taylor against Francis D. Boardman, Barzillai Boardman and William B. Led-yard, to quiet title to certain real estate described therein. The complainant claimed title under a sale upon an execution issued on a judgment against the defendant, Francis D. Boardman.

<p>Appeal in Chancery from Kent Circuit.</p> <p>The nature of the case and the facts' are sufficiently stated in the opinion.</p>

Appeal in Chancery from Van Burén Circuit. This was a bill filed by Henry S. Sanford of the state of Connecticut against Joseph H. Nyman, and Julia M. Nyman, his wife.

Appeal in Chancery from Yan Burén Circuit. This was a bill filed by Franklin M. Moore, George Foote and George F. Bagley, copartners under the name and style of Moore, Foote & Co., against Samuel B. Cheeseman and Catharine Cheeseman.

Case made after judgment from Berrien Circuit. •This was an action of replevin, brought by Howerter against Kelly, to recover a horse and harness. The writ was dated September 30, 1869, and was tested in the name of Charles Hpson, circuit judge of tbe 15th judicial circuit.

<p>Stipulation in quo warranto proceedings must be signed by the attorney general. - No stipulation can be regarded in a proceeding in the nature of a quo warranto, unless signed by the attorney general. — People v. Pratt, 15 Mich., 18U> affirmed. A relator can take nothing by reason of any statement of facts which has not been found by the jury or admitted by the attorney general, as well as by the respondent.</p> <p>Admissions in respondent's plea. The admissions in a respondent’s [plea are conclusive against him, and if they show him not entitled to-office, will maintain a judgment of ouster against him; but no judgment can be rendered for the relator thereon, if there has been no trial or finding upon facts.</p> <p>Majority of votes cast, necessamj to an election. No one is “elected” at a popular election unless there are more ballots cast for him than for any other person, whether there is or is not, in fact, any such other person in existence who can take the office. A minority candidate can never be allowed to maintain his title.</p>

<p>Error to Kalamazoo Circuit.</p> <p>This was an action brought by George H. Gale against the village of Kalamazoo, for a breach of contract in refusing to exercise the legislative powers of the village to carry out an agreement, of which the following is a copy, viz:</p> <p>“George H. Gale, of the village and county of Kalamazoo and state of Michigan, hereby stipulates, agrees and obligates himself, his heirs and legal representatives, to the president and trustees of the village of Kalamazoo, in said county and state, to erect, build and finish on village lots number four and five, on the corner of Burdick and Eleanor streets, in said village, according to the plan herewith attached and marked ‘A,’ a commodious market house, to be denominated the ‘Kalamazoo Public Market,’ and to be used for the purpose of vending meat, fish, poultry, game, fruit, vegetables, eggs and butter; said market-house to be so arranged with convenient stalls and fixtures that the same may be used at all seasons of the year, and with convenient approaches to the same for wagons, carts, drays and other vehicles; said market-house to be completed, and ready for occupancy and use by the first day of January, A. D. 1868, and to cost, including the ground to be occupied for the same, a sum not less than eight thousand dollars.</p> <p>“Immediately after said market-house is completed and ready for its occupants, the said George H. Gale hereby stipulates and agrees to place the same in the care and under the control of the president and trustees of the village of Kalamazoo and their successors in office, for the term of ten years, who shall control and rent the stalls in said market-house from year to year, or such other time as may be agreed upon, and for' sucb sums of money and to such persons as may be agreed upon by said president and trustees and said George H. Gale or his legal representatives, and on receipt of the rent it shall be paid to said George H. Gale, his heirs or assigns, quart er-annually, and as the same may be received from the occupants of the stalls in said market-house.</p> <p>“And it is further agreed between said parties, that the said George H. Gale, his heirs or legal representatives, shall keep said market-house and its approaches in good repair at his own cost, charge and expense, during the continuance of this contract; and it is further agreed between said parties that after the expiration of said term of ten years, or before, by consent of the parties hereto, this contract may be continued in force for the same or any other definite period of time; and when this contract shall be ended and, of no further binding force between said parties, the said president and trustees, and their successors in office hereby reserve to themselves the right at all times in the future thereafter to go upon said premises and inspect the same, and control the same so , far as it may concern the cleanliness of said market-house as affecting the health of said village.</p> <p>“ In consideration of the foregoing stipulation and agreement on the part of the said George H. Gale, the said presidént and trustees of the village of Kalamazoo hereby bind and obligate themselves and their successors in office, to have said market-house attended to, and supervised, by a competent manager or clerk, to be by them appointed, whose business, among other duties, it shall be to require the observance of all ordinances or by-laws adopted by said president and trustees, for the purpose of properly regulating said market-house and the vending of meats, fish, poultry, game, fruit, vegetables, eggs and butter, within the corporate limits of said village; and all the expenses of said manager or clerk shall be paid by the said Gale.</p> <p>“The said president and trustees do further agree that during the continuance of this contract there shall be no other public market-house in said village, provided said market-house shall prove large enough to accommodate the public for the purposes aforesaid; and the said president and trustees do further agree that the sale of all the articles above specified within the corporate limits of said village shall be confined to said market-house, or on the ground specified in section 11 of the by-law relating to public markets, during market hours.</p> <p>“The said president and trustees, for themselves and their successors in office, do further agree that at the expiration of this contract they will surrender possession of said market-house to said George H. Gale, his heirs, assigns or legal representatives.</p> <p>“ And it is further agreed that this contract shall not be binding upon said president and trustees of said village, until said market-house is fully completed and accepted by said president and trustees, and when so accepted it is also agreed that none of its provisions are to be construed so as to create any liability to the said George H. Gale, his heirs or assigns, on the part of said president and trustees of the village of Kalamazoo or their successors in office, for any damage that may at any time occur to said public market-house by fire or other elements.”</p> <p>This contract was executed by the plaintiff personally, and on behalf of the village by the president and trustees of the village. The averments of the declaration are sufficiently stated in the opinion. The defendant demurred to the declaration, alleging the following causes of demurrer, viz: 1. That it appears in and by said declaration that the' contract therein set out was not executed by said defendant, but by certain individuals, whose names are thereto attached. 2. That said defendant had no legal power to execute such a contract as is therein set forth. 3. That it does not appear, in and by said declaration, that said contract therein set forth was ever authorized, or entered into, or executed by the president and trustees of said village of Kalamazoo, or that said president and trustees ever accepted said market-house, or assumed the control thereof. 4. That it does not appear, in, and by, said declaration, that said by-laws therein set forth, or any of them, were of any valid or binding-force. 5. That said by-laws, even if valid, would not give the plaintiff any grounds for a private or civil action against the defendant.</p> <p>This demurrer was sustained, and judgment was rendered for the defendant. The plaintiff brings the cause to this court by writ of error.</p>

Appeal in Chancery from Washtenaw Circuit. This was a hill filed by George 0.

<p>Re» judicata. Generally courts of equity will not assume jurisdiction to retry cases which have already heen disposed of in the courts of law, upon the very point made by the bill.</p> <p>Jurisdiction of courts of equity to grant new trials. The jurisdiction to grant new trials in actions at law iB exercised by courts of equity only when the judgment recovered is against conscience, and when the applicant had no opportunity to make defense, or was prevented from so doing by accident, or by the fraud or improper conduct of the opposite party, and without fault on his own part. Equity will never interfere where a party, under no disability, has neglected to make his defense at law.</p>

<p>Construction of exemption laxo, The law exempting property from execution, being remedial and resting upon a wise policy, should, as far as practicable, be construed beneficially for the debtor.</p> <p>It is not necessary, however, to the validity of proceedings in one county to subject to execution running therein, any property of the debtor there found, which belongs to a class or species exempt by law to a specified amount or value, that the whole property of the debtor, of the same class, situated in any other county or counties in the state, shall be inventoried and appraised, and the portion to be left to the debtor out of the mass selected by the latter or by the officer.</p> <p>A construction of the statute which should require this to be done, would produce great inconvenience, would tend to embarrass the course of justice and would serve to defeat necessary legal remedies.</p>

<p>Error to Ottawa Circuit.</p> <p>This was an action of assumpsit, brought by Leonard against G-oodsell. The judgment below was in fayor of the plaintiff, and the defendant brings the cause to this court by writ of error.</p>

<p>Appeal in Chancery from Eaton Circuit.</p>

This suit was brought by William E. Near against Alexander Mitchell. Judgment was rendered in the court below for defendant, and plaintiff brings the cause to this court on writ of error.

The relator was prosecuting attorney, and the respondent the county clerk of St. Clair county. The facts are sufficiently set forth in the opinion.

<p>Bills to quiet title: Comp. L., § $U90¡ construed. Under the statute {Comp. L., % 3!t90)i which provides that “any person, having the actual possession and legal or equitable title to lands, may institute a suit in chancery against any other person setting up a claim thereto in opposition to the title claimed by the .complainant,’5 etc., the complainant is not bound to show by his bill that the claim set up by the defendant is one which would be prima facie good at law.</p> <p>In such a bill it is not necessary to set forth the ground upon which the defendant asserts the validity of his title, as this cannot be presumed to be known to the complainant. It would, therefore, be unjust to require him to set it forth and then to state the facts which would negative its validity.</p>

Appeal in chancery from Bay Circuit. Tbis bill was filed by Jonathan Whiting, Hiram Wood, George B. Powell, Charles D. Middlebrook and James Remington, against Isaac H. Hill, Stacey B. Hill and Melbourne S. Hale. The case is fully stated in the opinion.

<p>Error to Washtenaw Circuit.</p> <p>This was au action of assumpsit, brought by Horace Carpenter against John O’Hara and Daniel O’Hara.</p> <p>The case is fully stated in the opinion.</p>

<p>Inquest of damages under general railroad law : Verdict must be unanimous. The verdict of a jury of inquest, under the general railroad law, must be unanimous, and a verdict signed by less than all is a nullity.</p> <p>"What requisite in petitions in such proceedings: Each parcel of land must be described: Inability to agree with owner. Under the statute, as amended, the petition need not show an intention to build the entire road, if a division of fifteen miles has been lawfully designated; but in such case it must appear in the petition affirmatively that such division has been lawfully made in. such manner as to conform to the statute.</p> <p>When the land of several persons is sought to be appropriated, each parcel must be distinctly described, and the purposes for which it is wanted, and reasons why it is necessary to proceed under the statute to take it must be given. Parcels may not all be needed for the same purpose, and the same reasons for proceeding adversely may not exist in all cases.</p> <p>The fact of inability to agree with tho owner is jurisdictional, and may be controverted like any other fact.</p> <p>General finding of single sum for-land of several owners, invalid. Bach owner has a right to have a finding as to the value of his land and the necessity of taking it; and a general finding, giving a single sum for taking the land of several owners, is invalid.</p> <p>Practice in supreme court: Petition too defective to maintain proceedings. A petition not distinguishing the lands of several owners, nor showing the cause of proceeding against each, is too defective to maintain proceedings, and when a verdict under it is set aside the case cannot be referred back to a new jury, but the parties must proceed by a new application.</p>

<p>Error to Kent Circuit'.</p> <p>Tbis action was brought by Stanton A. Irish and Henry M. Euller, against William T. Powers, Martin L. Sweet, James M. Barnett, William Harrison, John W. Squires, Julius Berkey, William A. Berkey, John B. Moon, John Mangold, Charles C. Comstock, Reuben Wheeler, Richard E. Butterwortb, George M. Huntley, John E. Earle and Justus E. Earle.</p> <p>The nature of the action is sufficiently stated in the opinion.</p> <p>Hpon tbe trial the counsel for the plaintiffs, to maintain and prove the issue on their part, gave evidence, under objection, tending to show that the extra labor and expense of boring lumber and preparing tbe rafts mentioned in the declaration at the mill of said plaintiffs, in Greenville, Montcalm county, Michigan, in the year 1867, in order to prepare said rafts properly to pass the shute in the dam at Grand Rapids, Michigan, was the sum of fifty dollars; and that in the year 1868, the extra labor and expense of preparing the rafts mentioned in said declaration at Greenville aforesaid, to pass the shute in the dam at Grand Rapids aforesaid, was the sum of seventy-five dollai's.</p> <p>And the counsel for said plaintiffs, to maintain and prove the said issue on their part, offered to prove that the price of clear stuff lumber in Chicago, Illinois, declined from forty-six dollars per thousand at the middle of April, 1867, to thirty-six dollars at the middle of June, 1867, and that common lumber declined within the same time from four to five dollars per thousand; that from the twentieth of April to the twentieth of May in the same year, clear stuff lumber declined from six to eight dollars per thousand, and within the same time common lumber declined four to five dollars per thousand; and also that during the same interval in the year 1868, clear stuff lumber declined at said city of Chicago from four to six dollars per thousand feet, and common lumber from two to three dollars per thousand feet. To the admission of the matters so offered in evidence, the said defendants, by their counsel, objected, because the same were immaterial and irrelevant, and also for the reason that such evidence was too remote, indefinite and uncertain, to constitute any basis or rule of damages in said cause. The circuit judge overruled the objection and admitted thé evidence and the counsel for defendants excepted. The said plaintiffs offered no evidence whatever of the value of said lumber at the time and place of detention. ■ The counsel for the plaintiffs here rested.</p> <p>It was then admitted by said plaintiffs, that in the year 1853, Eliphalet H. Turner was the owner of the lands upon which said dam abuts on the west side of Grand river, and also of lands both above and below said dam, and that William T. Powers, one of said defendants, is now, and at the time of the erection of said dam was, the owner of the same lands by title from said Turner.</p> <p>And the counsel for said defendants, to maintain and prove the said issue on their part, offered -in evidence the record of the board of supervisors of the county of Kent, made June 18th, in the year 1853, which record is in the words and figures following, to wit:</p> <p>“On motion, the petition of .Eliphalet H. Turner for leave to construct a dam across Grand river in the city of Grand Rapids, was called up, of which the following is a copy, to wit:</p> <p> ‘“To the Board of Supervisors of the County of Kent: </p> <p>“ ‘ The petition of the undersigned, a resident of the city of Grand Rapids, represents that he is the owner of an undivided half of the land lying on the right bank of Grand river, from the bridge in the city of Grand Rapids aforesaid, for one half of a mile, and he says that he is desirous of constructing a dam across said river at the city of Grand Rapids aforesaid, abutting the same upon the abutment erected at the expense of the state near the canal guard-lock on the left bank of the river, and abutting on the right bank thereof, near the residence of Silas Hall; said dam to be for hydraulic purposes, to be made of stone and timber seven and one-half feet high. It is proposed to construct an apron or shute over said dam for the passage of rafts over the same, to be of such dimensions and of such material and description as your honorable board shall think fit and proper to answer the purpose aforesaid.</p> <p>(Signed) “ ‘ Elipiialet H. Turner.’</p> <p>“The report of the committee on the foregoing petition being called up, on motion the same was adopted, to wit:</p> <p>“ ‘ Your committee on dams, appointed by your board, on the petition of E. H. Turner for the privilege of constructing a dam- across the Grand river, commencing at, or near, the waste or bulkhead of the canal on the east side of the river, and thence west across said river at a point on the west side of the river opposite the house of Silas Hall, the majority of the committee are in favor of granting the prayer of the petition, and that a committee of three be appointed to consist of the following members: Messrs. Wilson, Dockeray and Hooker, for the purpose of making such restrictions as are made by the laws in relation to the powers granted to the board of supervisors by the laws of 1851,- giving to the board powers for the construction of bridges and dams to certain persons or corporations under certain regulations.’ ”</p> <p>The counsel for said defendants also offered in evidence that portion of the record of said board of supervisors, of date February 27, 1855, which is in the words and figures following, to wit:</p> <p>“Mr. Bailey offered the following resolution, which was adopted:</p> <p>“ ‘Resolved by this board, That the prosecuting attorney be requested to examine. the records kept by the clerk, and report to this board whether, in his opinion, the board of supervisors of the county of Kent have by any act or resolution of theirs, at any previous session, established any point or points, on which to abut a dam across Grand river, in the city of Grand Rapids.’</p> <p>“ The prosecuting attorney, John T. Holmes, Esq., being present, reported in obedience to said resolution substantially, verbally, legally and orally as follows, to wit: That he had examined into the matter and had found that the action at a previous session of the board had sufficiently designated a point at which a dam might be erected across said river, in said city; which report was supposed to be accepted, no one making any objection to the same.”</p> <p>They also offered in evidence that portion of the record of said board of supervisors, of date March 1, 1855, which is in the words and figures following, to wit:</p> <p>“The committee on dams made the following report:</p> <p>“‘The committee on dams having had under their consideration the subject-matter in relation to the application of Eliphalet H. Turner, for the construction of a dam across Grand river, report that,</p> <p>“ ‘ Whereas, It does not appear on the records that proper notices were given of the application of Eliphalet H. Turner, for leave - to - construct ,a dam across Grand river, according to the resolution of said board, of date June 18, 1853, granting, amongst other things, the petition of said E. H. Turner, nor does it appear by said record that due notices of said application were posted, and it appearing, by the affidavits of E. BT. Turner and S. W. Turner, that said application has been duly made, published and posted; therefore,</p> <p>“ ‘Resolved, That the clerk of said county be, and hereby is, instructed to file said affidavits, and that E. H. Turner has complied with the requirements of the statute in such case made and provided, prior to the passage of said resolution, of date June 18, 1853, as aforesaid.’</p> <p>“The report of the committee was received, and, two-thirds of all the members voting in favor thereof, the same was adopted.</p> <p>“A true copy, as this day passed, March 1, 1855.</p> <p>[Signed] “Orlando J. Odell,</p> <p>“ Chairman Board of Supervisors.”</p> <p>The counsel for said plaintiffs objected to the introduction of said evidence, on the ground that the same was immaterial and irrelevant to the issue in said cause. The circuit judge ruled that said evidence was immaterial and irrelevant to the issue, and rejected the same; to which the said counsel for the defendants excepted.</p> <p>The said defendants requested the court to charge the jury:—</p> <p>1. That if the building of said dam across Grand river, without the proper authority of the board of supervisors, was an unlawful act, the want of such authority must be shown by the plaintiffs.</p> <p>A That if the building of the dam in question was not unlawful, the plaintiffs can only recoyer upon showing gross negligence on the part of the defendants.</p> <p>3. That the falling of the price of lumber in Chicago aforesaid, during the alleged delays to the plaintiffs’ rafts, constitutes no basis of damages in this cause; but the damages must be confined to the actual loss and expense resulting directly and naturally from the act'of the defendants.</p> <p>These requests were refused; and the counsel for defendants excepted. But the court did charge said jury, that if the defendants claim as a defense in this suit, that the dam in question was constructed by them by lawful authority,. it was incumbent on them to show such lawful authority, and it was not necessary on the part of the plaintiffs to show the contrary. To this charge the said defendants excepted.</p> <p>The yerdict was for the plaintiffs, and judgment was entered accordingly. The defendants, William T. Powers, William Harrison and John Mangold brought the cause to this court on writ of error.</p>

<p>Appeal in Chancery from Midland Circuit.</p> <p>The opinion contains a statement of the case.</p>

<p>Appeal in Chancery from Wayne Circuit.</p> <p>This suit was brought by William Gilbert against Delos Showerman, Henry E. Champion and William E. Newkirk.</p> <p>The facts are fully stated in the opinion.</p>

The case is fully stated in the opinion. The affidavit annexed to the plea which is referred to in the opinion, was as follows, viz:— “James J. McCormick, the defendant in this suit, being duly sworn, deposes and says, that he never in fact executed the instrument in writing mentioned in the plaintiff's declaration, but the facts with relation to the execution thereof are as follows: That about the day of the date of said instrument in writing, Robert McKinney, the principal…

This was an action of trover, brought by Eli G. Bennett against James H. Green, to recover tbe value of certain wood and timber.

<p>Application for mandamus.</p> <p>A ■ sufficient statement of the case is given in the opinion.</p>

<p>Partnership: Authorizing another to represent himself as a partner. Where two persons authorize a third to represent and hold himself out as a partner with them, and in pursuance thereof he does so, this is as much their holding themselves out as such partners as if the same representations had been made by them in person.</p> <p>Instructions to the jury. Where, in an action against W, S and H, for goods sold and delivered, in which it was sought to charge S & H as partners of W, the court, upon being requested to charge that “ if the jury believe that under the arrangement between W and S & H, S & H had a right to any profits which might accrue in the business, they were partners even if there had been an express understanding that they should not be partners,” stated to the jury as follows, viz: “ That is abstractly true if they were to divide the profits. That is one of the marks by which you would tell whether they were partners,”— this left it for the jury to determine, as matter of fact, whether, by the understanding and agreement of the three, S & H were to share in the profits. Such charge, with the qualification added, is not open to the objection that it left it to the jury to find upon a question of law, viz: Whether, under all the circumstances of the case, S & H had a right to such profits.</p>

<p>Whal will revive forfeited policy of inswance: Estoppel. Where a policy of insurance lias become void by violation of one of its conditions, it cannot be revived by any thing short of a new contract, or such conduct as, by misleading the insured to his prejudice, operates as an estoppel. Mere knowledge of the violation without other action of the insurance company is of no account. —Western Mass. Insurance Go. v. Biker, 10 Mich., 279 ; Security Insurance Go. v. Fay, 22 Mich., IS7.</p> <p>Evidence; Admission. Where a party, in proving his loss under a policy, discloses the fact of the existence of another policy, obtained in violation of the conditions of the former, such statement is an admission that dispenses with any other proof against him of such further insurance.</p>

<p>Costs: Judgment: Certificate of judge under Comp. L., % 5636. When a judgment of the circuit court has been rendered in favor of the plaintiff for less than one hundred dollars, with costs to the defendant, a certificate of the circuit judge, who held said court, and who rendered said judgment, made after judgment, and entitled and filed in the cause, “that upon the trial of said cause the claim of the plaintiff, as established, exceeded the sum of two hundred dollars and the same was reduced by set-off to the sum for which judgment was rendered,” and directing “ that an entry that such fact appeared be made in the minutes of said court of said trial,” will not impeach or effect the judgment for costs, on writ of error.</p> <p>Comp. Z., % 5636, construed: When entry anil certificate to he made. The statute {Comp. Z., § 5636) authorizing the juclge holding the court, on the application of either party, either before or after verdict rendered, if upon the trial the plaintiff’s claim shall be reduced by set-off, or any other fact shall appear which will entitle either party to costs or double ■ costs, to cause an entry to be made in the minutes of the court specifying that such fact appeared, and providing that “no evidence shall be received by any taxing officer of such matter other than a certified copy of such minutes, or the certificate of the judge who tried the cause, ” does not authorize the granting of such certificate after judgment, so as to apply to, and afl'ect, the judgment, which itself determines which party is to recover costs.</p> <p>In the cases to which this statute applies, the entry is needed to show which party is to recover costs or double costs in order that the judgment may be put in proper form, and furnishes the information for constructing the jirdgment, and must, therefore, precede the judgment; and any entry or certificate framed on this statute, could have no influence on a judgment theretofore regularly rendered.</p>

<p>Service of process on domestic corporation. A corporation created by, and located in, this state can be sued only in tbe county where it is located, unless service of process is made personally on some one of tbe officers indicated by law as the proper persons to represent it for that purpose. There can be no substituted service (under Comp. X., § fi8S6) for want of finding such officers, except in the home county.</p>

One William Burnham brought repleviu against the relator, in the circuit court for the county of Washtenaw. The writ having been served and the property delivered to the plaintiff, the service was, on motion of the defendant, set aside after the return day named in the writ.

<p>Bahlroad aid by towns ami counties: Taxation: Bonds. The municipal corporations of this state have no authority in return for, or upon the basis of, the incidental benefits anticipated, to exercise the power of taxation in aid of private corporations building, or proposing to build, railroads to be owned and controlled by their corporators; and bonds issued by way of such aid, being incipient steps leading to taxation, are unauthorized.</p> <p>The taxing power of the state has certain definite limits, one of which is that the tax must be for a public purpose; and within the meaning of these ■words as employed to measure the authority of the state to demand and enforce the contributions of its citizens, a railroad in the hands of a private corporation is no ipore a public purpose than a manufactory, a newspaper establishment or any other means for the carrying on by individuals of a business which, while private in its nature, nevertheless supplies a public need.</p> <p>The legislature therefore, can neither compel the taxation of municipalities in aid of railroad companies, nor empower them in order to give such aid to tax themselves or to contract indebtedness which must be paid by taxation. —People v. Salem, SO Mich., U5S.</p> <p>Due process of law. To take a man’s property from him, under pretense of taxation, for a purpose for which taxation is not admissible, is an unlawful confiscation and not due process of law; and is therefore forbidden by Art. VI., § 82, of our constitution.</p> <p>Municipal votes. The power to impose such taxation could not come from, nor be aided by, the municipal votes. The legislature has exactly the same power to • impose the taxation without the assent of the municipalities, that it has to permit it with their assent; and the permission granted to the municipalities to vote upon the question was matter of favor and not of right.</p> <p>Appoi'tionmeut of the burden of taxation. There is no mode in which aid to a railroad running through many municipalities can be given by the taxation of all, consistently with any recognized theory of taxation, without an apportionment of the burden by some rule, or upon some basis, among them all; and this would be impossible under a system by which one township might tax itself ten per cent, of its valuation, another equally benefited by the same object refuse to pay but one, and the third decline altogether to bear any share of the common burden.</p> <p>Constitutional construction. The state is precluded from loaning the public credit to private corporations, and from imposing taxation upon its citizens or any portion thereof in. aid of the construction of railroads, by Art. XIV., §§ 7, 8 and 9, of our constitution. What the state cannot do in this regard directly, it cannot require its townships, cities and villages to do for it.</p> <p>Constitutions are to be construed as the people construed them in their adoption, if possible; and the public history of the times should be consulted, and should have weight in arriving at that construction.</p> <p>Mandamus. When a municipality, under our railroad aid law («S'. L. 1869, p. 89), has issued, and deposited, bonds in aid of a railroad with the state treasurer, who, on demand therefor, has declined to deliver the same to the proper authorities of such muuicipality, a writ of mandamus will be granted to •compel such delivery.</p> <p>Practice in supreme court: Costs. Where, in such case, there is nothing to indicate that the state treasurer, in. awaiting the order of the court before delivering up the bonds as requested, was not acting in good faith under an honest misapprehension of his duty, the writ will issue without costs.</p>

This suit was brought in the court below by Milo H. Hopper, against Addison P. Cook, Harvey Ransom and Christopher J. Dickerson, and was tried by a jury. The trial resulted in a verdict for the plaintiff, upon which judgment was rendered. The defendants bring the cause to this court by writ of error.

This was a petition by the railroad company, against Orsamus B. Clark, to acquire title to certain lands.

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

<p>Error to St. Joseph Circuit.</p> <p>The facts are fully stated in the opinion.</p>

The petition set up what it alleged to bo tlie facts in the case, and prayed for a mandamus to compel the respondent to set aside a judgment rendered upon a trial by the court without a jury, iu the. Wayne circuit court, in favor of Patrick Fitzsimons and another against the relator, and to enter upon the records an order in said cause for the trial thereof by jury.

Appeal in Chancery from Muskegon Circuit Motion for leave to file a hill of review. The. opinion contains a full statement of the case. For prior proceedings in these cases, see 18 Mich., 12, 195 and 490.

Appeal in Chancery from Kent Circuit. Motion to dismiss the appeal on the ground tbat the decree appealed from was not a final decree.

Appeal in Chancery from Wayne Circuit. The common council of the city of Detroit filed their hill in the circuit court for the county of Wayne, in chancery, against the Board of Public Works of the city of Detroit, Henry H. LeBoy, William Purcell, Deodatus C. Whitwood and Julius Stoll, to determine the validity of the act of the legislature, under which the corporation defendant derived its powers, and the individual defendants their offices as members of the board.