Volume 24 — Michigan Reports

Joseph Strang and George H.' Williamson were charged, on the information of the prosecuting attorney of Hillsdale county, before the circuit court for the county of Hillsdale, with the offense of rape, committed upon Lovisa Towers. Strang was tried separately and convicted; and judgment having been entered on the verdict, the case comes into this court by writ of error.

Appeal in Chancery from Muskegon Circuit. The bill in this cause was filed by Louis Bemeau, in the circuit court for the county of Muskegon in chancery, against Thomas Mills and Henry N. Smith; first, to restrain, the defendant Mills from suing out of the circuit court for the county of Muskegon a writ of possession on a judgment rendered in said court in a suit in ejectment wherein the said Mills was plaintiff, and the complainant was defendant; secondly, to declare a deed…

<p>Mortgage construed: " Outlawing" of mortgage: Forfeiture: Time. A mortgage for two thousand dollars, payable in two years from date, with annual interest, given for part of the purchase price of the property described in it, was in the usual form, except that it contained this clause, yiz: “ The said two thousand dollars being for purchase money of the same, detained by the party of the first part as security for the perfection of the title, to be made good by the party of the second part, to wit: a deed from Rice and wife (if any), or in chancery,’ or his legal representatives, to the party of the first part; also a mortgage, to he discharged from record, made by one Joseph French, July 8, 1841, unless the same shall outlaw prior to the time of payment of this indenture ; all to be arranged and completed on or before two years from this date,, at which time this mortgage shall become due and be paid; but in case the title shall be made good as aforesaid, prior to the 9th day of September, 186T, the party of the second part shall give ninety days notice to the parties of the first part, of the arrangement of said title as aforesaid; the full time not to exceed two years from the date of this instrument:”—</p> <p>Held, That the proper construction of this clause is, that the two thousand dollars was kept back as security for the perfecting of the title in the two par, ticulars mentioned within two .years, and that the stipulation for annual interest was to be operative only after the title had been perfected; and that the term *• outlaw" as here used, referred-to the time when, bylaw, the mortgage would be presumed paid;</p> <p>Keltic furtheri That in the absence of any stipulation in the nature of a forfeiture, the mortgagee’s rights could not be forfeited on failure to comply by the day, if he does so within a reasonable time afterwards.</p> <p>Equity: Pleadings; Averments in HU. • The mortgagee’s right to the money in such case being dependent upon the title being perfected in the two particulars mentioned in the mortgage, a bill to foreclose tbe same should contain distinct averments, in the stating part of the bill, of the performance of these conditions precedent. A bill in tbe ordinary form, as in case of a mortgage for the payment of money unconditionally, except that, in stating the pretenses of defendant to excuse his non-payment, it states that he pretends a non-compliance by complainant with such conditions, and avers that Buch pretense is unfounded, is not sufficient.</p> <p>What not performance of condition precedent. An instrument signed by Bice, in which he disclaimed all right of title or interest in, or to, the premises, and did thereby “relinquish and forever quit-claim all right, title, or interest in, or to, the premises unto whom it may concern,” would be of no service in perfecting the title; and the procuring of such instrument, by the complainant, was not a performance of the condition precedent, as to the Bice title mentioned in said mortgage. #</p> <p>When mortgage presumed paid. A mortgage will be presumed paid after the expiration of twenty years from its maturity.</p> <p>When bill not amended. A bill defective in its averments will not be amended where the case is essentially defective on the proofs, but may be dismissed without prejudice.</p>

<p>Certiorari: General allegation of informalities • Notice. Under a general allegation of informalities, in an affidavit for a writ of certiorari, which, in addition to such general allegation, contains special objections to the proceedings, it cannot be urged as ground of error, in the absence of a special objection on tbis subject, that it does not appear from the return, except inferentially, that proper notices had been posted, when the petition states that due notice was given.</p> <p>No informalities which could he cured by any return or explanation can be relied upon without a special assignment.</p> <p>Delay: When not fatal to proceedings to establish a drain. Where the petition for c&t'ttorari sets up that the application to the commissioner for a drain was made in August, 1869, and the return to the writ does not show whether the application was made in August, 1869, or August, 1870, and no further return was required, and no action was had under the application until May, 1871, and it appears that the present commissioner came into office May 1, 1871, in the absence of any showing that there had been unreasonable delay in his predecessor, such'delay, on his part, under the statute in question (,Sess. L. 1869, pp. 'll, 75), which does not fix any specified time within which the commissioner shall proceed, was not fatal to the proceedings.</p> <p>Plaintiff in certiorari cannot take advantage of errors that cannot injure him. Relief will not be granted to a plaintiff in certiorari unless it appears to the court that the proceedings may, at least, affect him injuriously.</p> <p>The objection, to the proceedings to establish a drain, that the drain described in the proceedings extends beyond the line of the lands described in the original application, will not avail a plaintiff in certiorari whose lands are not beyond such line, where the commissioners to assess damages have found that no damage results to any of the lands by reason of the construction of the drain, and the whole of the drain beyond the line originally projected has been built and paid for, by tbe owners of tbe land it crossed. The plaintiff stands where he would have been without the extension, and has no cause of complaint.</p> <p>The town and the county systems of drainage independent: The act providing for tho former does not repeal that regulating the latter. The town system and the county system of drainage are independent systems, and a change in the regulation of one does not necessarily interfere with the other.</p> <p>Act No.-98, of 1871 U Sess. L., 1871, p. 1Í6), providing for township drain commissioners, and for the repeal of laws inconsistent with it, does not repeal Act No. hS, of 1809 (1 Sess.'Z., 1869, p. 70), regulating the county system of drainage, which is continued in force and amended by Act No. 169, of 1871 (1 Sess. L., 1871, p. 257.)</p>

Appeal in Chancery from Barry Circuit. The bill in this case was filed by Smith Sandford in the circuit court for the county of Barry, in chancery, against Richard T. Flint, Mary J. Griffin, and William H. Jewell, register of deeds for Barry county, for relief against a statutory foreclosure of a mortgage executed by the complainant to the defendant Flint, and by Flint assigned to the defendant Griffin, by whom the mortgage was foreclosed.

This suit was brought by Otto Kornemann and Julius Jungblnth, against William Monaghan, to recover the price of certain goods sold by the former to the latter, through the means of an order taken by a traveling agent of the plaintiffs’, named H. C. Pearl. The trial was by jury, and the verdict and judgment were for the defendant.

<p>Service of process on, foreign, corporations. Service of summons against a foreign corporation, on the secretary, is irregular and unauthorized. The statutes of this state, providing for service of process on various named corporation officers, only apply to our own corporations, and were not designed to reach foreign corporations. Except in cases where special provision has been made otherwise, the remedy, as to foreign corporations, must bo sought as at common law.</p>

Appeal in Chancery from St. Clair Circuit. The bill in this case was filed by Joseph B. Comstock, in the circuit court for the county of St. Clair, in chancery, to foreclose a mortgage given by Alfred Comstock, to the complainant.

.Informations in the nature of quo warranto. These proceedings are brought to test the right of the members of the boards of water commissioners, and of sewer commissioners, of the city of Detroit, to continue to hold their respective offices after the talcing effect of the act establishing a board of public works; and the questions raised, relate to the validity of said act.

This was an action of assumpsit brought by Samuel B. Harris, in tile circuit court for the county of Houghton, against the Franklin Mining Company, to recover the balance unpaid of the contract- price for his services for the defendants for the period of one year, at the rate of one thousand eight hundred dollars per annum.

Appeal in Chancery from Lapeer Circuit. The bill in this cause was filed by Wesley Truesdail, in the circuit court for the county of Lapeer, in chancery, against Eber B. Ward, Ilalmer H. Emmons, Benjamin F Moore, William Moore, and Allender S. Moore for the specific performance of a contract for the purchase of about twenty-five hundred acres of pine lands.

Appeal in Chancery from Tan Bnren Circuit. This bill was filed by Emory 0. Briggs against Silas Withey, Miles E. Beebe, and Thomas H. Stephenson. Withey alone answered, and the bill was taken as confessed by the other defendants. Proofs were taken, and the cause heard upon pleadings and proofs. The decree was for the full amount claimed.

This was an action of ejectment brought by Thomas B. Irwin in the circuit court for the county of Van Burén against Elay Buell, Dewitt C. Smith, and Jacob Wesler, for a tract of eighty acres of land. The defendants pleaded jointly the general issue, and gave notice of their several occupancy, each claiming compensation for improvements upon the premises occupied by him.

<p>Trover: Right of action assignable:' Charge to the jury. In an action of trover, a charge “that a sale of the plaintiff’s claim for damages by reason of the unlawful talcing and carrying away of the property, would not affect plaintiff’s right to recover,” is erroneous. A right of action in trover is assignable.— Final v. BacTcus, 18 Mich., 218. .</p> <p>Payment of judgment for damages for full value in trover, transfers title to defendant. A defendant in trover, against whom damages are given for the full value of the property converted, gets title to the property by payment of the judgment. And no one has a right to full damages unless he is in such a position that title will thus pass from him at the time of the trial and judgment.</p> <p>Rights of plaintiff in trover who has transferred his title after the conversion. A plaintiff in trover, who has transferred his title after the"conversion, can only recover nominal damages, unless there has been some special damage caused by the taking and detention. » • •</p>

Exceptions certified from tbe Recorder’s Court of tbe city of Detroit. Samuel and Abram Williams were charged, on tbe information of tbe prosecuting attorney of Wayne county, before tbe recorder’s court of tbe city of Detroit, with tbe larceny of two thousand six hundred dollars, the property of Bernard Williams. They were convicted, and a * bill of exceptions was settled and certified to this court before judgment, under tbe statute.

<p>' Supervisor: Assessment for taxation : Excessive tax: Injunction. If tlie supervisor of a township, in making the assessment of property for taxation, shall fraudulently, and with a view to impose upon an individual more than his just proportion of the public burden of taxation, assess the property of such individual above its value, and relatively above the other assessments on his roll, the party aggrieved may have an injunction to restrain the collection of the excessive tax.</p> <p>BUI to restrain collection of excessive tax: Duty of injunction-master: Condition of relief; Decree in such case. A property-owner, seeking to enjoin the collection of taxes on the ground that the amount is excessive, should show by his bill, as near as may be practicable, what amount is just, and what excessive, and he should pay to the proper officer the amount which he concedes to be properly chaigeablc against Kim. In the case of a personal tax, a preliminary injunction should not be awarded in such case, except upon the terms that the whole amount in dispute be paid into court, or proper security given for its ultimate payment if it shall be decreed by the court; and in any other case, the officer allowing an injunction has a discretion to require such security, which it may sometimes be proper he should exercise.</p> <p>He who seeks equity must do equity; and he who seeks to enjoin the collection of an excessive tax, must be required as a condition of relief to pay such amount as is just,</p> <p>Where, therefore, a hill was filed to restrain the collection of an excessive tax, and the court found the tax to be excessive, and thereupon made a decree perpetually enjoining the collection, not only of the amount that was excessive, but of tho whole tax, it was held that the decree was wholly unwarranted, and it was thereupon reversed.</p>

Appeal in Chancery from Branch Circuit. In August, 1868, the circuit court for the county of Branch in chancery, in a suit between Julia M. Chandler and Robert G-. Chandler, rendered a decree dissolving the marriage between the parties, committing the custody of their infant child to the mother, and directing the payment by the father of a weekly allowance for its maintenance. In January, 1871, the defendant, Robert G-.

<p>Divorce: Jurisdiction over marriage relation, A decree of divorce obtained by the husband against the wife, in the state of Indiana, where the testimony shows that the Indiana court had no jurisdiction, and that the divorce was for that reason invalid, does not preclude the wife from procuring a decree of divorce from the husband in this state.</p> <p>If the Indiana divorce had been valid, it does not follow that the courts of this state have no jurisdiction over the marriage relation so far as the wife, residing in this state, is concerned.</p> <p>Jurisdiction in divoi'ce causes. To give the courts of Indiana jurisdiction to grant a decree of divorce the complainant must reside within that state.</p> <p>Where the husband resides in Indiana and the wife resides in Michigan, either state has authority, in respect to the marriage relation, to determine upon its validity or to dissolve it, so far as the party resident within its limits is concerned; and if one proceeds in one state such proceeding is no legal impediment to the other’s taking like steps in the other state, where it is necessary to the protection of any property or other rights.</p> <p>Alimony. A bill for divorce (under Oomp. X., § 8887, Sub. 6) on the ground that the defendant had obtained a divorce from the complainant in the state of Indiana, on appeal by the defendant from the decree below to this court, does not differ as regards the granting of alimony from any other divorce suit.</p>

<p>Boards of highway commissioners: Organization: Certiorari to review proceedings relative to highway encroachments: Service: Meturn. A writ of certiorari to review proceedings before a justice of tbe peace and a jury, under § 1087, Comp. Laws, relative to encroachments on highways, must be directed to the jnstice, — . and if necessary to bring up the final action of the commissioners or the documentary evidence annexed to it, — to them also. The township clerk is not a member of the hoard of commissioners; and a record of their proceedings made up by him; the service, of a writ of certiorari directed to them, upon him, and a return thereto by him, are each without authority of law.</p> <p>A township clerk may certify papers legally in his custody; and when such, papers become properly a part of a return to a writ of certiorari, directed to the commissioners of highways, the commissioners may annex such certified copies and return them, certifying under their signatures, substantially, — “ Our return to the within writ appears by the schedules hereto annexed, certified by our clerk,”</p>

Appeal in Chancery from Bay Circuit. This bill was filed by Elizabeth F. Denison, against Channcey W. Gibson, Sanford M. Green, William C. Green and Elias B. Denison, complainant’s bnsband, to set aside and cancel a mortgage given by her, on ber separate property, to secure the payment of several notes which sbe had signed as surety with the defendants, Green and Denison, and which were given by the latter to defendant Gibson for part of the purchase-price of stock of the…

<p>Appeal iu Chancery from Genesee Circuit.</p>

Exceptions certified from Lapeer Circuit. •The thirteenth, fourteenth and twentieth requests to charge, referred to in the opinion, were as follows, viz: 18.

<p>Promissory note: Title: Possession: Production on trial. As a general rule, the possession by the plaintiff, and his production upon the trial, of the promissory note sued upon, is prima facie evidence of his title, or his right to sue upon it; and the plaintiff need not be the real or beneficial owner to entitle him to recover.</p> <p>Presumption. The production of the note upon the trial would, in ordinary cases, raise a presumption that the state of facts which authorizes the plaintiff to prosecute the suit in his name, existed at the time the suit was commenced; but the defendant may rebut this presumption and defeat the action, by showing that the state of facts existing at the time the suit was instituted did not authorize the plaintiff to sue.</p> <p>Promissory note: Evidence. The maker of a promissory note payable to bearer, has a right to show, as against the plaintiff producing the note on trial, that the latter did not obtain the title, or the right by which he seeks to recover, until after the commencement of the suit.</p>

<p>Local municipal officers cannot be selected by any other than local authorities. The functions of the park commissioners of the city of Detroit (See 2 Sess. L. 1871, p. 1822) are local and municipal, and-their selection cannot be properly made without the assent of the local people or authorities. — People v. Hurlbut, supi'a, p. hk.</p> <p>Ratification of action of park commissioners concludes all questions of their authority to act. The board of park commissioners organized under the aforesaid act, and were classified for different terms according to its provisions. They selected a location for a park, and reported the same to the common council, and that body approved the location and adopted the resolutions required by the statute to provide for carrying out the plan. The mayor vetoed these resolutions, and the common council passed them over his veto. The mayor thereupon called a freemen’s meeting to take action upon the question of issuing bonds in accordance with the act of incorporation:—</p> <p>Held, That the ratification, by the common council in this form, of the action of the board, necessarily involves an approval of everything essential to give it validity, including, as a primary clement of regularity j the right of the public agents to assume the agency.</p>

<p>Account between state and county: Hoard of supervisors: Mandamus. When a statement of account between a county and tbe state, showing a debt due to the state, is correctly and regularly made, and the ascertained amount is seasonably certified in due form to the clerk of the county, it is the duty of the ‘ board of supervisors under section 80 of the act of 1869 {Mo. 169), as amended in 18*11 {Mo. 168), at once to make the proper apportionment; and if they shall refuse to do so, they may be compelled by mandamus.</p>

<p>Landlord and tenant: Certiorari: Forcible entry and detainer act. This court will not entertain jurisdiction to review, upon a cominonjlaw certiorari, proceedings by a landlord, under the forcible entry and detainer act, to recover possession from a tenant holding over.</p>

Appeal in Chancery from Manistee Circuit. This was a bill filed November 1, 1869, by J. Lawrence McVickar and Benjamin McVickar, against Delos L. Filer and eighty-eight others. Several of the defendants demurred to the bill. Subsequently on May 4, 1871, on motion of defendants who had demurred, the bill was dismissed for want of prosecution. From this order the complainants appealed.

This was an action of case brought by Loomis against Parmalee and Alfred Bixby, for a breach of a warranty of title to a certain city order, drawn by one Benjamin C. Goodhue, contractor, upon the city clerk of Lansing, and payable to Mr. Parmalee for balance due Goodhue, for grading the streets of that city. The defendants delivered said order to the plaintiff in payment of an assessment against them, which he held for collection as city treasurer.

<p>Statute Construed: Circuit judge forbidden to act as counsel. Tlie statute {Comp, t. § U066) forbids a circuit judge, after baying called another judge to bold tbe court and preside at the trial, from appearing in a criminal prosecution and taking charge of tbe case as tbe assistant of tbe prosecuting attorney.</p> <p>Tbe fact that such judge bad previously sent in bis resignation, which was to take effect five days thereafter, and that be intended to act no more officially, does not affect this question. Tbe statute is imperative, and does not depend at all upon any other circumstance than tbe present possession of tbe office.</p> <p>It cannot be said that this error was one which could not injure tbe prisoner; or that, in legal contemplation,* it could make no difference to him whether he was prosecuted by one counsel or by another. Whatever is forbidden on grounds of public policy, in connection with a trial, tbe party concerned may except to; and tbe correctness of motive, tbe high standing and upright character of tbe officer concerned, cannot be considered on such an exception, and consequently cannot be an answer to it.</p> <p>Büidence; It is error to permit tbe prosecution on a criminal trial, against tbe objection of tbe prisoner, under pretense of refreshing tbe recollection of a witness, to read to him while on tbe stand, and in tbe presence of tbe jury, bis evidence given on a previous occasion, and then to ask him whether, after having heard it read, be recollected certain factB stated in it.</p>

<p>Removal of school-district officers: Statute construed. The statute (Comp. L., § 2377, as amended by Bess. L., 1861, p. 291, § 186), providing for the removal from office, by the township board, of school-district officers, etc., is applicable, so far as it relates to district officers, only to school-districts situated wholly within the limits of a single township; and it gives the power of removal only to the township board of the single township in which the district is situated.</p> <p>An omission, by the legislature cannot be supplied by the court. The omission by the legislature to confer the power upon the joint boards of two or more townships where a district is organized from two or more adjoining townships, whether it occurred through inadvertence or design, is one which this court cannot supply.</p> <p>Certiorari: Joint action of boards of two townships for removal of school-district officer void. Where, the return to a writ of certiorari, issued to bring up for review the proceedings of the boards of two townships sitting together as a single joint board for the removal from office of a director of a school-district embracing a part of each township, purports to be the return of the two boards as a joint board, and discloses that they acted jointly in the hearing and determination of the case, this is sufficient to show that their action was without jurisdiction and void.</p>

<p>Certiorari: Affidavit: Return. Where an affidavit for certioraH complains of rulings of the court, but no return is made except of the record, and the plaintiff in certiorari goes to a hearing upon such return, this court will consider nothing except what the record, thus made up, discloses.</p> <p>Evidence: Recoi'd: Presumptions. The evidence in such case forms no part of the record, and where the judgment recites that the court received the proofs and allegations and considered the arguments of the respective parties, in tbo absence of any return to the contrary, it will be presumed that the proofs were sufficient, both in form and substance.</p> <p>Power of village authorities to open and vacate alleys, etc.: Power of circuit courts to alter or vacate town plats. The power given by the charter of Three Rivers to the village authorities to open and vacate alleys, does not exclude the exercise by the circuit courts of the power conferred upon them by statute to alter or vacate town plats.</p> <p>Petition to vacate {town plats: Ywijication. The petition by which proceedings under said statute are instituted need not be verified by oath.</p> <p>Statute construed: Petition, how signed. Such petition need not be signed by all the persons interested. The amended statute (Sessi L., 1867, p. 259) was intended to authorize any owner to make the application, and any other owner to oppose it.</p>

<p>Error to Van Burén Circuit.</p>

<p>Charter of Bay City: Valuation of property for taxation: Board of review: Extending warrant. The power conferred hy the charter of Bay City, as amended in 1869 (Eo. SOI, § /f£), upon the board of review to examine the assessment roll and review a valuation of property thereon, can only be exercised on the application of a party concerned; and when, upon such application, they have, by a resolution entered on their records, reduced a valuation, such resolution is of the nature of a judicial determination which must stand as final until changed upon a rehearing after reasonable notice,</p> <p>The board of review are not required to base tlieir conclusions upon sworn testimony only; they may act upon their own personal examination, or upon any evidence satisfactory to them. s.</p> <p>A resolution by the common council to extend a warrant for the collection of taxes is a valid execution of the power conferred by'th'e amendment to the charter (§ hS). No formal notification to the officer to whom the warrant is directed is necessary to a valid extension of it.</p>

Goss sued Dart in Ingham circuit upon a judgment rendered in the supreme court of the state of New York, for the county of St. Lawrence, against said Dart, Solomon W. Wright and Alfred Dart. The court below rendered judgment for tlie plaintiff, and the defendant brings the case to this court on writ of error.

Harriet E. Willets brought this action in the court below, against the Continental Life Insurance Company of New York, upon a policy of insurance issued by said company upon the life of her husband, William J. Willets. The opinion contains a sufficient statement of facts as to all the questions decided, except that of the admission of the evidence of Gray.

This action was brought by James Nall, jr., Hubbard N. Duncklee and Jolin H Shepard, for tbe use and benefit of James Nall, jr., against Louis Conrad. The trial was by jury, and the verdict and judgment for tbe plaintiffs. The defendant brings the cause to this court on writ of error.

<p>Equitable estoppel. In an action for damages to land, caused by the setting back of water, by means of a mill-dam, where the evidence discloses simply that the defendant, and his grantor of the mill-site for several years before him, had flowed the land and paid a yearly compensation therefor, in the absence of any showing that the original construction 'of the dam was in reliance upon any license, or that the course of the defendant, or his grantor, was changed, or any expenditure made in reliance upon any conduct or promise of plaintiff, the . doctrine of equitable estoppel does not apply.</p> <p>License defined. A license is a permission to do some act or scries of acts» on the land of the licensor, without having any permanent interest in it. It is founded on personal confidence, and is, therefore, not assignable; it may be in writing dr by parol; it may be without consideration; it is subject to revocation and is not within the statute of frauds.</p> <p>When something beyond a mere temporary use of the land is promised, and the promise is not founded on personal confidence, but has reference to the ownership and occupancy of other lands, and is made to facilitate the use of those lands in a particular manner and for an indefinite period, so that the right to revoke at any time would be inconsistent with the evident purpose of the permission, the interest is something more than a license.</p> <p>Agreement: Sight to fiow lands: Tenancy. An agreement properly evidenced, giving the owner of a mill-site the right, for a stipulated annual compensation, to flow the adjoining lands of another for an indefinite period, by the erection of a dam upon his own premises, creates a tenancy in such lands.</p> <p>Parol agreement: Statute of frauds: Tenancy from year to year: Notice to quit. Such an agreement is within the statute of frauds; but that statute permitting leases for a year to be created by parol, and a parol lease for more than a year, under which the lessee has been put in possession, being good as a lease from year to year until terminated by notice, an action cannot be maintained against one in possession under such au agreement, created by parol, except for the agreed compensation, without notice to quit.</p>

<p>Attorney -at-laxo dealing with those not clients. An attorney-at-law stands on tlio same footing with others, in dealing with persons who are not, and have not been, his clients within such a period as might raise a presumption that he is dealt with as a professional adviser.</p> <p>An attorney, not occupying such a relation, went to complainant, whose property had been sold on execution, so that his right of redemption had expired, and none hut creditors could redeem, and proposed, if complainant would confess judgment in his favor upon a certain alleged claim, that he would redeem the property for complainant’s benefit on reasonable terms of compensation; but complainant refused to do so:-</p> <p>Held, That a subsequent purchase by the attorney of an outstanding judgment and a redemption under it, gaye no rights to complainant in the redeemed property.</p> <p>Husband and wife. A subsequent sale of the redeemed property to the wife of complainant, in consideration of a mortgage given hack in an amount not much exceeding the sum required to redeem and clear the property from encumbrances, upon an agreement to clear the title, enured solely to her benefit, and gave complainant no interest, and no right to complain of non-compliance; and created no duty in regard to any.property not included in that arrangement.</p> <p>Statute of frauds. A verbal promise to advance money, and make purchases therewith for another, and hold and dispose of the property for his benefit, where he furnishes no means, and when nothing is obtained by his aid or from his property, would he (if established, — which is not found to he the case here) void under the statute of frauds.</p> <p>Purchaser under execution: Trustee. Where a debtor is, by carelessness and bad habits, allowing his property to be sold on execution, and does not redeem it, a person who buys it up from the execution creditors docs not become a trustee for his benefit; even where the purchaser gives out that he has benevolent designs in his favor, .where he gets no deductions in price on the idea that ho is such trustee, and where he has not fraudulently intervened to prevent the debtor from getting what he would have obtained without such intervention.</p> <p>Fiduciary relations. Upon the facts in this case, it was found there was no manner of fiduciary relation between complainant and defendants.</p> <p>Rehearing. An application for a rehearing, based upon a showing of facts that were already upon the record, or that would not materially alter or add to the case made on the first hearing, will he denied.</p>

<p>MU in equity: Equitable relief. A bill in equity, which is demurrable aB to the specific relief prayed, on the ground that the complainant has an adequate remedy at law, hut which also contains a prayer for general relief, will not be dismissed on the hearing for that reason, where the defendant has not demurred, but has answered without claiming the benefit of a demurrer, and both parties have introduced evidence upon the whole merits of the case, provided it states a case proper for any equitable relief, and the evidence supports the case so made.</p> <p>Bill to redeem. A bill in equity which sets forth the facts upon which the equitable right to redeem mortgaged chattels after condition broken and possession taken by the mortgagee depends, and alleges that an amount stated was due on a day stated, and that complainant had offered to pay that amount, although it does not in so many express words offer to pay what may be found to be clue upon the mortgage debt, contains all the substantial requisites of a bill to redeem where the question arises upon a hearing upon the evidence and merits without a demurrer.</p> <p>Bill m equity: Prayer for general relief. Where a bill in equity, which does not make out a case for the specific relief prayed, but is sufficient as a bill to redeem, is not demurred to, the prayer for general relief will be treated as a prayer to be allowed to redeem. — Schwarz v. Scars, Walk. Ch., 170.</p> <p>Bill in equity: Prayer to be allowed to redeem. The substantial meaning of a prayer to bo allowed to redeem, in a bill in equity brought for that purpose, is to be allowed to redeem by paying whatever may be found due upon the mortgage; and it makes no difference iu this regard that it is claimed in the bill that the whole debt has been paid, as this is always open to denial by the answer, and when so denied the question of the amount due is put in issue, and if any thing should be found due, the prayer must still, on the hearing, be construed as one to be allowed to redeem by paying what may thus be found due.</p> <p>Ghattel mortgage: Bill to redeem: Mortgagee in possession. A mortgagor of chattels may maintain a bill in equity to redeem after condition broken and after the mortgagee has taken possession, if brought within a reasonable time.</p> <p>Foreclosure of chattel mortgage. Where a chattel mortgage provides specially how and upon what notice the mortgagee may sell, these express provisions preclude all implications upon the subject, and he cannot cut off tbe equitable right to redeem, if asserted in a reasonable time, by a sale in any other mode, except, perhaps, by sale to a bonafide purchaser vilhout notice of the mortgagor’s equities.</p> <p>Promissory note: Interest: Stipulated damages: Penalty. A provision in a promissory note drawing no interest if paid at maturity, for the payment of interest at ten per cent, from its date, if not paid at maturity, may be enforced where the note was given for property sold on these specific terms.</p> <p>Whether such a provision, in a note given for a precedent debt, would be treated as a penalty rather than stipulated damages for non-payment at the da y: — Qucere?</p> <p>Tender; Award. Where a tender was made upon a mortgage, of an award and a stated amount in money, and the amount in money, through an error in computation of interest, was too small, but the mortgagee supposed it to be correct and refused the tender, not on this ground, but because he claimed that he was not bound to receive the award, the fact of this deficiency in money will not prejudice the mortgagor when the award is held good on a bill to redeem.</p> <p>Award. Where the answer to a bill to redeem on tender of an award as part payment, admits the submission, and that the parties mutually executed bonds to abide the award, and attacks its validity only on the ground that the arbitrators “did not award in accordance with the submission;” and the defendant in his testimony abandons this ground and claims it was invalid, because, after having heard part of the case, the arbitrators adjourned to a specified day or the first intervening rainy day, aud then, without sufficient notice to him, met at an earlier day and made their award; and the evidence shows, not only that he had actual notice of the last meeting, but purposely disregarded it, and secretly undertook to induce one of the arbitrators to withdraw from the arbitration, the award will not, for such reasons, be held invalid.</p> <p>Award: Equitable offset to mortgage. In the case of an award, providing for the payment of money by defendant to complainant, and for tbe delivery by complainant to defendant, at his premises, of thirty-three shoats “ as specified in farm contract, etc.,” it is held, under the circumstances of this case, that the provision for the payment of the money is independent of, and in no way affected by, the clause in reference to the shoats. That clause does not prevent the specific money award from constituting an equitable set-off to the mortgage debt.</p> <p>Award: Equitable offset to mortgage. Upon a bill to redeem mortgaged chattels " where the mortgage debt accrued iu the purchase by complainant, from defendant, of farming implements and a horse and wagon to enable him to carry on a farm he had hired of defendant, and the evidence tended to show an understanding that a claim of complainant’s against defendant for extra work done on the farm, repairs, lumber, etc., and for board of defendant and his family, and taking care of his stock, etc., should be turned on the mortgage debt, and that this claim was submitted to arbitration, the award thereon in complainant’s favor constitutes a valid equitable offset to the mortgage.</p> <p>Bill to redeem: Deem: Mortgaged chattels: Conversion of by mortgagee. A mortgagee of chattels uuder a mortgage containing a special power of sale, having taken possession of the chattels and converted them to his own use without sale, so that they cannot be redeemed in kind, the court holding the mortgagor entitled to redeem on his bill filed for that purpose, entered a personal decree against the mortgagee for the excess of the value of the property over the amount found due on the mortgage.</p>

Appeal in Chancery from Wayne Circuit. This was a bill filed by John V. Brevoort, George H. Prentis, Homer W. Candler, James W. Candler, William R. Candler and Marie D. Lyon, against tbe city of Detroit, Thomas Joyce (city collector), and Hubbard Smith, Calvin A. Cook, and Jesse H. Farwell (contractors), to restrain tbe collection of an assessment against the lands described in tbe bill, for paving Woodbridge street in front of said premises.

Appeal in Chancery from Houghton Circuit. This bill was filed by Charles H. Palmer against William W. Williams, Kaphael Pumpelly, Thomas B. Brooks and John L. Spurr. Tbe defendants answered, and proofs were taken. The decree was for complainant, and tbe defendants Pumpelly, Brooks and Spurr appealed to this court.

Appeal in Chancery from Houghton Circuit. This bill was filed by William W. Williams against John L. Spurr, Thomas B. Brooks, Raphael Pumpelly, William H. Stevens and Charles H. Palmer. The defendants answered, and proofs were taken. On the hearing the bill was dismissed, and the complainant brings the case up by appeal.

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

<p>Motion to open judgment by default: Service: Return: Amendment. Where a motion is made to open a final judgment obtained by default, tlie circuit court has power to allow a sheriff to amend his return of service of a declaration, by showing that a copy of a note appended to the declaration was also appended to the copy which he served.</p> <p>Default: Appearance of defendant: Judgment. An entry of default, and a subsequent order after four days in term to make it absolute, and for a reference to assess the damages, is sufficient to maintain a judgment, without any other entry of appearance of defendant, or any other form of interlocutory judgment.</p> <p>Declaration: Pi'omissory note: Indorsement: Title: Judgment: Reference to the clerk. Where a copy of a note appended to a declaration, under the common counts, was payable to “3f. JL. Sweet &¡ Co.,” and suit was brought by Martin L. Sweet, and no indorsement was set forth on the copy, it was held that such declaration was equivalent to an assertion that he was in a position to sue on it without indorsement, and that, upon default, such title was admitted, unless evidently impossible; and that, in support of the judgment, it might be assumed that he could have shown that he had such right as surviving partner, or as the only person doing business under that name; and therefore a reference to the clerk was proper, as no evidence was needed to prove title aliunde.</p>

Error -to Wayne Circuit. This was an action of ejectment, brought by plaintiffs in error against defendants in error, to recover the undivided third part of lot number ninety-three in section one, of the governor and judges plan of the city of Detroit. Plaintiffs proved title in Dennis Campan long since deceased, to the whole lot, by deed from, the governor and judges to him, dated April 26, 1809.

Appeal in Chancery from. Kent Circuit. This bill was filed by Francis Boxheimer against William S. Gunn, Hiram H. Sutton, Fanny A. Sutton, Levi Harrington and Denslow D. Davie. Gunn alone answered, and the bill was taken as confessed by the other defendants. Proofs were taken and on the hearing a decree was entered granting the relief prayed. The defendant Gunn appealed. •

Appeal in Chancery from Kent Circuit. This bill was filed by Russell Linsley against Robert P. Sinclair, Jane S. Hull and Thomas McConnell. The defendants Hull and Sinclair answered, and the bill was taken as confessed by said McConnell. Proofs were taken, and on the hearing a decree was rendered for complainant, from which defendant Sinclair appeals.

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

<p>Bailroad company: Subscriptions; Begularity of organization. In an action by a railroad company against a corporator for an unpaid balance of his subscription, questions of the regularity merely, of the organization of the company cannot be raised where it appears that it is a corporation de facto, proceeding in the performance of corporate functions, holding meetings, raising and expending money, and constructing its road without any interference of the state authorities, and that the public are dealing with it on the supposition that it is a corporation.</p> <p>Organization of corporation: Begularity of proceedings. In the case of a company organized under a special charter, proof of the charter and of user under it is sufficient to establish a- prima facie right in the plaintiff to sue; and this prima facie caso an individual could not dispute in an action where the question comes up collaterally, and whore the state, as the party chiefly concerned, cannot be heard by its. counsel; and the ruling should be the same where an attempt has been made to organize a corporation under a general law, and the question is one of exact regularity and strict compliance with the law.</p> <p>Corporation de facto: Estoppel. In the case of the associates in a corporation de facto, and those who have had dealings with it, there is a mutual estoppel resting upon broad grounds of right, justice and equity, which prevents the former from denying, and the latter from disputing, the incorporation.</p> <p>Subscriptions to stock: Conditions-precedent. A railroad company, although a corporation de facto and entitled as such to maintain actions, cannot recover upon subscriptions to its stock, without showing performance of all those acts which are made by the statute conditions precedent.</p> <p>Constitutional laxo: Title of statute. The amendatory act of 1861 {Sess. L., 1861, p. 101, § 66) to the general railroad law, is not unconstitutional for the reason that its object is not sufficiently expressed in the title. Although the title is not as specific as might be desirable, it cannot be said that it does not express the object of the law.</p> <p>Constitutional law: Amendments by implication. A statute which purports to add a new section to a prior statute may, by implication, amend other sections of the original act without violating Art. 17., § 35 of our constitution, requiring the sections amended to be rc-enacted and published at length.</p> <p>Construction of statute: Bailx'oads: Divisions for construction: Sxibscriptions to stock. A statute is to be so construed, if possible, as to give effect to all its provisions, and to make them all harmonious. A railroad company is authorized by the general law as amended by the act of 1861, to proceed in the construction of a division of its line of not less than fifteen consecutive miles, and to collect the subscriptions made along the same, so soon as the requisite six thousand dollars per mile is obtained of subscriptions which are assessable for the construction of such division, and officers are duly chosen and tbo division designated.</p> <p>Statute constx'ued: Municipal aid to railroads. Such municipal aid as should be voted was intended by said act to be reckoned as a part of the six thousand dollars per mile; and the fact that such aid lias since been held void by this court cannot affect the construction of that act.</p> <p>Subscriptions to stock of railroad: Assessments: Divisions for construction. For the purposes of an assessment upon subscriptions to the stock of a railroad company, cither the road must be regarded as an entirety or the separate division set apart for construction must be considered and proceeded with by itself as a whole.</p> <p>An action for an assessment upon such subscription cannot be maintained without proof that the necessary subscriptions had been obtained between the two termini, or within the required distance from them, of the division designated and set apart.</p> <p>Designation of division of railroad for construction: Commissioners: Directors. The board of directors, and not the commissioners designated to receive sub-' scriptions to stock, are the proper authority to set apart a division of a railroad for construction; but the fact that the commissioners assumed to take such action, which was merely void, is of no consequence when the proper proceedings are afterwards taken by the directors.</p> <p>Action for assessment upon subscription to stock • Defense. It is no defense to an action for an assessment upon subscriptions to stock, that stock has been awarded by the commissioners to persons whose names were not on the stock book, or to those who had not actually paid in the required five per cent, on subscribing; one who has received what he subscribed for, cannot complain of an award to those who could not have compelled it.</p> <p>Consolidation: Matter in abatement: Plea. It does not defeat such an action, that pending it the plaintiff consolidated with another company. The oause of action did not die but passed to the new company, and this objection, if valid in any form, should be considered matter in abatement merely, and should have been pleaded accordingly.</p> <p>Contract against public policy. An arrangement, between the officers of a railroad company and a portion of its subscribers, that if the town in which they reside voted a certain amount of municipal aid, such subscribers upon paying a certain percentage of their subscription should be released from the balance, being one in effect to release a portion of the subscriptions without authority of law, is void.</p> <p>Conditional subscription: Condition construed. A subscription to stock of a railroad, made upon condition “that the line of the road shall be located and built within one mile of the post-office, in the village of Three Rivers,” is assessable when the road is finally located within one mile thereof, although, not yet constructed.</p> <p>Charge to the jury: Statute construed. It is no violation of the statute (1 Sees. L1869, p. 113), requiring the whole charge to the jury, to be in writing, that the judge read to the jury, without making it a part of his written charge, a section of the general railroad law of the state. The party is as fully protected as if the section of the statute had been copied into the charge.</p>

<p>Mandamus: Judgment: Compromise and payment: Motion to stay proceedings. Where the court below has denied a motion, founded on affidavits, to stay proceedings on a judgment, on the ground that it had been compromised and paid, and tho compromise and payment is denied by the plaintiff, this court will not grant a mandamus to compel a stay of proceedings.</p> <p>Compromise and payment: Affidavit. Where an alleged compromise and payment are contested, a question is raised upon the rights of the parties which cannot properly be tried upon affidavits.</p> <p>Discretion: Affidavit. Generally no matter can properly be tried upon mere affidavit, except such as depends upon the discretion of the court; 'and in such case this court cannot control that discretion.</p>

This was a petition by the railroad company to acquire the right of way for railroad purposes over the lands of Ary Van Driele and others. This petition did not state that there was any necessity for taking the property for public use. A jury was demanded, and twelve jurors having been summoned and impanneled, the matter was tried before them.

<p>Assault with intent to murder: Intent: Verdict. An indictment, charging a respondent with an assault with intent to “murder,” is not made out without proof of such an intent as would have made the killing murder, if death had followed. A verdict that the respondent was guilty of an “ assault with intent to kill,” amounts to no more than a finding that he was guilty of a mere assault, which is a misdemeanor, and not a felony.</p> <p>Assault with intent to kill. There is no statutory offense in this state consisting of an assault with “intent to kill.” And as all killing is not felonious or malicious, or even unlawful, such an intent will not necessarily involve guilt or malice, so as to make the killing murder. There is no such qualified assault at common law, differing in any way from a simple assault.</p> <p>Statute consinied: Excess of judgment in criminal cases; ImpHsonment. The statute, which provides that a criminal judgment of fine or imprisonment in excess of what is allowed by law shall only be reversed “in respect to the unlawful excess” (Sess. L1867, p. 228), docs not apply to cases where a party is sentenced to imprisonment in the state prison, for an offense only punishable by imprisonment in the county jail. There is such a difference in these kinds of imprisonment, that one cannot in any case be substituted for the-other; and an appellate court cannot know what term would have been given,, had the court below understood the respondent could only be imprisoned in the county jail. In such a case the erroneous judgment must be reversed, entirely.</p>

<p>Sale of exempt chattels: "Written consent of wife. Under tlie statutes of Michigan, a sale by the husband, of a personal chattel, exempt by law from execution, without the written consent of the wife, is valid. Defendant in error brought replevin to recover a cow sold by her husband, the cow being exempt from sale under execution. On the trial, the court below refused to admit evidence offered by defendant to ehow, that she was present at the sale, and assented to the same:—</p> <p>Held, That this was error, as a written consent on her part was unnecessary. —Dann v. Cudney. 13 Mich.. 239.</p>

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

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

<p>Sunday: Rescission of Contract. The rescission of a contract requiring certain formules to be gone through with by the party making the same is as much a matter of business as that of making the contract itself; and therefore if done on Sunday it is illegal and void.</p>

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

Appeal in Chancery from Kalamazoo Circuit. The bill in this cause was filed by Frederick W. Daniels against Sidney Johnson and Washington Pitcher, for the purpose of haying a deed with a contract to reconyey declared to be a mortgage. The case was heard on pleadings and proofs. A decree was rendered in favor of defendants, from which the complainant appealed.

This was an action of assumpsit brought before a justice of the peace, to recover the rent of a store in Bay ■City. Judgment was rendered in favor of plaintiff. The defendant appealed to the circuit court, where the cause was tried by the court, without a jury.

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

The testimony of Sharp, referred to in the opinion, was given under objection, and was to the effect that he was informed and believed that the plaintiff was the Stansbury ■Oyster Co., and did business in that name; that he received the note for collection from one who represented himself to be James E. Stansbury; that he only knew the plaintiff «or the Stansbury Oyster Co. by hearsay.

Appeal in Chancery from Bay Circuit. This bill was filed by Maxwell M. Fisher, David Q. Preston and Elisha G-. Booth against Bernard L. Meister and Rebecca Meister. The defendants answered separately, and proofs were taken. The decree was for complainants, and the defendants appealed.

<p>Liability of municipal corporations for misappropriation of a special fund: Common council the legislative body of city. Where, under the provisions of a city charter a contractor is only payable out of a particular fund, the city will be liable to him if that fund is misappropriated by the common council. — Chaffee v. Granger, 6 Mich., 51.</p> <p>The council is the legislative body of the 'city, and it is acting as such not less when levying a special assessment than when imposing the ordinary taxes.</p>

<p>Officer: Qualifying: .Certificate: Ouster: Judgment: Damages. Where an officer, duly elected, is kopfc out of office by one to whom the returning board has given a certificate of election, he is not at fault for not qualifying before he has obtained judgment of ouster, as such an attempt might be nugatory, in the absence of the documentary title. Ho is, therefore, entitled to recover damages for the whole official term, from the beginning, until he obtains possession of the office.</p> <p>Damages for being kept out of office: Salary: Services of incumbent. He is entitled to recover for that period the entire official salary, without any deduction for the services of the incumbent, or for what he may have earned himself while ousted. An official salary is not made dependent on the amount of work done, and belongs to the office itself, without regard to the personal services of the officer.</p> <p>Measure of damages: Office expenses, etc. How far deductions might be proper for necessary office expenses, and what measure of damages would be proper where specific services are paid for only as they are actually performed, are questions not raised in this case, and not decided.</p>

<p>Constitutional law: Taking of private properly: Necessity. Section 15 of article XT, of the constitution, which provides that “private property shall not be taken for public improvements in cities, etc., without the consent of the owner unless compensation be determined by a jury, etc.,” does not dispense with ascertaining the necessity of such taking, as provided in section 2 of art. XT11I.— Cainpau v. Detroit, 14 Mich., 28S; People v. Brighton, 20 Mich., 69.</p>

<p>Application for mandamus.</p>

<p>Testimony: Presumption as to correctness. Where one of two parties gives an account of transactions between them, which the other, though a witness in a suit relating thereto, does not dispute or offer in any manner or degree to disprove, it is fair to presume that its general correctness was conceded.</p> <p>Tender: Waiver. A party who declares positively, when an offer is made to him by another, to pay him an alleged claim on behalf of a third person, that nothing is due him, and that he will accept no money, thereby excuses any tender, and is not entitled afterwards to object that money was not particularly counted out and presented to him.</p> <p>Charge of court: Misleading jury. When, in such a case, the court charged the jury that if they should find that the party in his attempt to make a tender of the amount alleged to be due, only took out a pocket-book containing one hundred and fifty dollars, being more than the amount claimed, and said he was ready to pay the amount due, this would not constitute a legal tender of the lesser amount, and also that the party was bound to set apart the specific sum he proposed to pay unless he was prevented from doing so, or the tender was waived:—</p> <p>Reid, That while it might be correct as an abstract proposition, yet in view of the denial of any indebtedness, the charge had a tendency to mislead the jury as to the real point in issue, and impress their minds with a belief .that the judge was of the opinion that a tender might be necessary on the facts in proof.</p>

<p>Divorce: Dill: Adultery: Evidence. A decree of divorce on a bill which contains but one charge of adultery sufficiently specific to warrant any evidence on the subject, cannot be sustained on the ground of adultery, in the absence . of auy evidence tending to prove tbe specific charge alleged.</p> <p>Divorce: Extreme cruelty: Personal violence. A decree ot divorce cannot be sustained on the ground of extreme cruelty, upon evidence as to an act of personal violence not set up m the bill, where it appears that such act, if it occurred at all, was committed some months after the bill was filed.</p> <p>Neglecting to look after household affairs, etc. Whether neglectiug to look after her household affairs, leaving the house without cause and remaining absent for a considerable length of time, on the part of the wife, constitutes, in any case, that extreme cruelty which the statute contemplates as a ground of divorceQucere ?</p> <p>But the slight degree of negligence about household affairs, and the very short periods of absence (consisting, for the most part, of brief visits of a few hours to her children by a former marriage, residing in the neighborhood) proved in this case, fall far short of such extreme cruelty.</p> <p>Divorce: Profane, obscene and insuUing language: Extreme cmelly. Profane, obscene and insulting language habitually indulged towards a person of a sensitive nature and refined feelings, may amount to extreme cruelty. — Briggs v. Briggs, 20 MchSU ,* but this, as a general rule, would be more readily recognized, when used by the husband to the wife, than when by the wife to the husband.</p> <p>In this case, however, it does not appear that the complainant was a person of such sensitive nature and refined feelings as would be likely to be affected to the degree of extreme druelty by any such language as the wife is shown to have used.</p> <p>Divorce: Threats to burn complainant's property. A decree of divorce on a bill filed by the husband, cannot'be sustained by proof of threats to bum his property, where the evidence does not indicate that they were made with any real intent to carry them into effect, or that he really believed the defendant had any serious intention of the kind.</p>

<p>Personal property: Contract of sale: Delivery: Title. Under a contract for the sale of personal property not within the statute of frauds, manual delivery of the articles sold is not essential to the passing of the title, unless made so by the understanding of the parties; and their intention is the governing consideration in every case.</p> <p>Lumber: Contract of sale: Inspection: Delivery: Title: Loss. Under a contract for the sale of all the lumber of a certain quality manufactured at a certain mill during a season “to be delivered on rail of vessel when lumber is ready to ship, or when vessel is ready to send for it,” when, at the end of the season, upon notice from the vendor, the vendee has sent an inspector, who, acting for both parties, has inspected the lumber at the mill, which, as fast as it was inspected, has been hauled some forty rods to the dock to be ready for delivery on the vessel, and the vendee has been notified thereof, the title passes and vests in the vendee; so that, upon its destruction by fire without fault, neglect or carelessness on the part of the vendor, the latter is entitled to recover the purchase price.</p>

This ease was tried by the court without a jury, and the following facts were found under circuit court rule No. 87: The plaintiff is a corporation organized for the purpose of transacting the business of banking, under and by virtue of an act of congress, approved June 2, 1864, and has had its bank, or place of business, in the village (now the city) of Marquette, since said plaintiff -was incorporated.

This was ail action of replevin brought in tbe court below, by Daniel W. Hollister against Josbua R. G-iddings, for a horse. On the trial, it appeared that Hollister was tbe owner of the liorse, and that Giddings took it by virtue of an execution issued by one Chatfield, a justice of tbe peace, upon a judgment in favor of one Mary E. Clarke, against William Retan, wbicli Hollister bad stayed. The questions raised relate to tbe validity of this judgment and execution.

<p>Justice .of the peace: Appeal from criminal conviction; Recognizance: Bond. The statute (Sess. Z., 1861, p. 80) requires a party desiring to appeal from a conviction, before a justice of the peace, of a criminal offense, to enter into a recognizance to the people of the state, in a sum not less than fifty nor more than five hundred dollars, with one or more sufficient sureties. A bond is an instrument so essentially different from á recognizance that an offer hy a party desiring to appeal under said statute, of a bond, in whatever amount, with sureties however good, would not impose upon the justice the duty to receive or notice it. •</p> <p>But where a justice before whom a party has been convicted of an assault is sued for damages for refusing to accept an instrument tendered to him by the party so convicted, for the purpose of making an appeal, and for directing the officer holding the commitment to take Mm to prison, and such suit is brought to this court on error, and the instrument so tendered is spoken of in the record as a bond, and the respective attorneys in their examination of witnesses called it a bond, and such instrument appears to have been introduced in evidence against objections on other grounds, but no objection was made that it was a bond and not a recognizance, this court will assume tbat it was a recognizance in due form.</p> <p>Justice of the peace: Recognizance; Bail: Sureties. Where a party, convicted of an offense before a justice, tenders to the justice, for, the purpose of making an appeal, a recognizance in the highest sum fixed by the statute, there is no occasion for the justice to fix the amount thereof; but he might, on examination of the sureties, reject them for insufficiency.</p> <p>Raise imprisonment: Recognizance: Inability of justice of the peace. If, however, the justice refuses to accept a recognizance for such appeal, tendered within twenty minutes after the sentence was pronounced, or to have any thing to do with it or the sureties, not because it is not in due form, or for a sufficient amount, nor because of the insufficiency of the sureties, hut simply on the ground that it is too late to appeal at all, and directs the officer to imprison the party, he will be liable for the imprisonment as clearly as if he had placed the party in prison without the interventiou of the officer. An appeal perfected hy the actual giving of proper hail, terminates the jurisdiction of the justice, both of the subject matter and the person, and Ms mittimus will no longer protect him.</p> <p>Mistake: Damages. If the justice, in so doiug, acted merely under a mistake as to his legal duly and without malice or corruption, the party injured is entitled to recover only his actual damages.</p>

<p>Trespass: Damages: Ice-house. Damages for the value of an ice-house for the season, according to its capacity for storing ice, are not improper, where it has been destroyed by wilful trespass so as to lose the season's use. As it can only he filled at one part of the yoar, its value cannot be estimated in the same way as that of'premiscs available at all times alike.</p> <p>Highways: Obstintctions: Eye-witness: Evidence. Whether an erection actually obstructs passage on a way, is a question properly put to eye-witnesses familiar with the road, and-cannot be determined in all cases by any mere description by metes and bounds, without a personal knowledge of the effect on the convenience of travel.</p> <p>Public nuisance: Highways: Abating obstructions: Necessity. A public nuisance cannot be lawfully abated by a private person unless he has suffered some Special damage not common to others. And a person obstructed in his use of a highway, and having occasion to use it, cannot interfere with any erection nnlesB in case of necessity, and then only to the extent of that necessity. All needless violence is unlawful.</p> <p>Highways: Encroachments: Nuisance: Question of fact: Public convenience. An encroachment on a way is not necessarily a legal nuisance. An owner of the soil may use it in any way which does not interfere with the public convenience, and every nuisance is a question of fact.</p> <p>Encroachments: Proceedings to remove: Forcible entry. An encroachment which is not a nuisance can only he properly tried by legal proceedings on the part of the public authorities. And they have no right to make public entry where the right is in dispute. — Sheldon v. Kalamazoo, supra, cited and applied.</p>

The relator brought ejectment in the Wayne circuit court against Edwin Reeder and Eliza Reeder. He claimed under a deed from the state upon a purchase of the lands as escheated lands. On the trial the defendants introduced a large amount of evidence to show that in the sale and conveyance of the lands by the state board of escheats to the plaintiíf, a fraud was committed upon the state.

<p>Alleys: Title of abutters: Public rights: Title to gravel. In an action for the value of certain gravel taken by defendant, partly from plaintiff’s lot in the city of Grand Rapids, and • partly from an adjoining alley between its center and the side adjoining the lot, it will be presumed, in the absence of any showing to the contrary, that the plaintiff’s ownership extended to the center of the alloy, subject only to the public right in the same as a highway,, and for other public purposes; and that she was therefore owner of, and entitled to, the gravel to the center of the alley, with the right to take and remove the same to a depth which should not exceed the grade of the alley which might he adopted by the city authorities.</p> <p>Ch'ading alleys : Removing the soil to Jill up streets. Whether this right, is subject to tbe right of the city authorities to use any portion of the soil or gravel for the purpose of filling up any part of the alley within the block, to bring the alley to such grade as they should adopt: — Qucej'e?</p> <p>But the public authorities would have no right, as against the plaintiff, to remove such gravel entirely from the alley to fill up streets elsewhere in the . city.</p> <p>Permission of common council to grade alleys: Removing soil to fill up streets. Whether permission given by tbe common council of a city to owners of lots .on one side of an alley, to grade tbe alley at their own expense and under their own management, would give suclr owners all the rights to the use of the soil on the opposite side of the alley, that the city would have possessed had the grading been done by the public authorities: — (¿uccre?</p> <p>Such permission would not give the right to a contractor employed by such lot owners, as against the plaintiff, who owns a lot on the opposite side of the alley,' under pretense of grading the alley, to take the gravel adjoining plaintiff’s lot, without her consent, and carry it off to fill up a street elsewhere, under a contract which he had with the city.</p> <p>Consent: License: Removing soil from alley. Consent, on the part of the plaintiff, simply to the grading of the alley by such lot owners without charge upon her, without some proof of usage or custom to control or explain the meaning of this license and iii the absence of any evidence that she, upon being called upon for that purpose, had refused to assign or altow him any convenient placo to deposit snch gravel, would not authorize such contractor to carry it off beyond the alley and sell it for his own profit, leaving the alley itself ungraded.</p> <p>Costs: Sight to injure lands. The plaintiff is entitled to costs under the statute {Comp. X., § 5597, Sub. 2) giving costs to a plaintiff recovering judgment in any action wherein a right “ to any easement in any land, or to overflow the same, or to do any other injury thereto ” shall “ come in question on the trial of the cause.” The right would be no less clear under the same section as amended in 1S71. — Sess. X. 7577, p. 192.</p>