Volume 25 — Michigan Reports

<p>Injuries caused by leaving a dangerous place on private property unguarded. Owners of private property are not responsible for injuries caused by leaving a dangerous place unguarded, where the person injured was not on the premises by permission, or on business, or other lawful occasion, and had no right to be there. „</p>

Clair Circuit. This action was brought by Frank Whipple, in the liaine of the People, against William H. Dunphy, former sheriff, and Daniel H. Cole, Anson S. Welch, and Albert Staley, his sureties, upon the bond of said Dunphy as sheriff, to recover damages for the failure of said Dunphy, while acting as sheriff, to return an execution.

Appeal'in Chancery from Wayne Circuit. This is a foreclosure bill filed by Isaac R. Adams, John 0. Adams, and Mary G-. Hodgkins, adults, and Charles S. Adams, and William M. Adams, minors, against Moses W. Field. The defendant answered, and 'proofs were taken. The contest was over a single disputed payment. The decree below allowed this payment, and the complainants appealed.

<p>Certiorari to the commissioners of highways, John Spinks, township clerk of the township of Cottrellville in the county of St. Clair, and Peter Krieder, justice of the peace, to bring up for review proceedings under sections 1087 and 1089, Compiled Laws, for an alleged encroachment upon a highway by Samuel Roberts.</p>

<p>County drains: Commissioners: Appointment: Intent. Where, in proceedings under the county drain law, the probate court, on the application of the drain commissioner has appointed three commissioners to examine the lands, etc., one of whom was named, in the order making the appointment, William Rad-ford, and it appears that he did not act, but that one Robert Radford, who had not been appointed, acted in his stead, the proceedings are void.</p> <p>It is no answer to this defect that the probate court intended to have appointed Robert Radford, and by mistake called him William. This court cannot go behind the act of the probate court to discover an intent differing from the one expressed. A purpose to make- a certain appointment, which has never been carried out, cannot sustain official action by the person intended.</p>

<p>Depositions: Direct interrogatories: Answer not responsive: Exception: GrossinteiYogatories. Where a witness, examined on deposition, instead of answering direct interrogatories as they are put, replies by introducing new and distinct facts not inquired about, and which favor the party on whose behalf the questions are put, the opposite party, and not merely the party propounding direct questions, may object that the answers are not responsive; as the right of cross-examination on the matter thus improperly brought into the case would be otherwise lost. A party drawing cross-interrogatories in advance cannot be required to anticipate any thing not fairly responsive to the direct interrogatories, and should not be prejudiced by evasions of that nature.</p>

<p>Error to Sfc. Clair Circuit.</p>

<p>Township treasure!': Official bond: Sureties: Liability. Sureties upon the official bond of a township treasurer for his second term of office, who were not upon his bond for. Ms first term, are not liable for the default of their principal during such first term. The official terms are wholly distinct; and the official bond covers only the term, and the official defaults of the treasurer during the term, for which it is given, and the fact that the same person held the office for both terms, does not affect the question.</p>

<p>Bankrupt: Residue of property. A bankrupt has a right to the residue of his property which is left after all debts proved and all expenses of the bankruptcy proceedings are paid in full.</p> <p>Bankruptcy: Trust terminated: Property undisposed of reverts. Where there are no debts proved, and all possible claims have outlawed, and all expenses are paid, the trust is terminated, and all property undisposed of reverts to him or to his estate.</p> <p>Trust: Residue of property: Reconveyance. The interest remaining in property after an express trust has been satisfied, is a legal estate and requires no reconveyance, where there has been no change in the property or the title held in trust.</p>

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

Elmer brought trover against Eifield to recover the value of a cow alleged to have been converted by the latter. The trial was by jury. Upon the trial, the plaintiff, to maintain the issue on his part, was sworn as a witness, and testified that he was the owner of the cow in suit; that she was taken from his possession in the month of October, 1871, and that she was worth fifty-five dollars.

Appeals in Chancery’ from' Ionia Circuit. Esther E. Baker filed her bill against Amos R. Mather, Dennis H. Burns, Horace Roatch, and Henry W. King to foreclose a mortgage made to her by Mather and Burns, dated January 21, 1864, but which was not recorded until March 3, 1869. Roatch and King were made defendants as subsequent purchasers or incumbrancers. King alone answered, and the bill was taken as confessed by the other defendants.

Joseph Campau died seized of a large number of parcels of land of different values, in Wayne county and elsewhere, leaving nine children as equal heirs. The interest of one of these heirs, Theodore J. Campan, in each of four separate city lots in Detroit, was sold on execution, levied, upon such interest in said lots alone, which were only a portion of the lands in said county belonging to such inheritance. The interest in each lot was sold, separately.

<p>Motion: Order: Practice in circuit court. An order upon motion will bo presumed to have been made in court and not out of court, although not entered on the daily -journal, where the judge appends to the motion in the motion hook the certificate “ Oh'anted. B. F. G., Circuit Judge." This practice is recognized as having long prevailed at the circuit in regard to motions.</p> <p>Corporations: Service: Statutes construed. The statutes allowing corporations to ho sued within three years after the expiration of their charters and enumerating the officers on whom service may he made, bring them within the same rules that apply to existing corporations in case such officers do not exist or cannot he found, and allow the same proceedings to obtain substituted service. —(Comp. L., 1857, §§ me, 1838.)</p> <p>Substituted service. Where jurisdiction is obtained by substituted, in lieu of actual, service, the statutes must he strictly compiled with or the proceedings cannot be sustained.</p> <p>Where a charter does not require an officer to reside in the county where the corporate business is done, and does require Mm to reside iu the state, an affidavit that none of the officers named in the. statute'on whom service should, be made, reside in the county, will not he sufficient, without further proofs to justify the inference that they cannot ho found in the state.</p> <p>Whether full proof that they are not to be found when a suit is commenced, will justify substituted service without either a reasonable delay, or clear proof that they are not likely to come within the jurisdiction within a reasonable timeQueers ?</p> <p>Proof that S. K. was a former president u and the only president thereof to the knowledge or belief of this deponent,” is no proof that he continued president, unless the deponent further shows that he has adequate knowledge on the subject; unless he was in a situation making it evident that a change in the office would be known to him, such an affidavit is entirely ineffectual.</p> <p>Conveyance: Corporate seal: Acknowledgment. A conveyance sealed by the corporate seal, and signed by the president and cashier, need not, in the absence of any special evidence, be acknowledged on behalf of the corporation by any one but the cashier. The object of the acknowledgment is to ascertain whether it is the act of the corporation, which, where there is nothing to the contrary, must be assumed to be properly manifested by the affixing of the seal by .the officer charged with its custody. Benedict v. Beíitoíi, Walk. Ch. 336, approved.</p>

Appeal in Chancery from Wayne Circuit. The bill in this case was filed by Henry L. Steinbach against Thomas Hill and Delphia S. Hill, for the purpose of rescinding a land contract on the ground of fraud. A decree was made in favor of complainant, andt the defendants appealed.

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

<p>Application, for mandamus.</p>

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

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

<p>Application for writ of prohibition.</p>

<p>Exceptions from Calboun Circuit.</p>

<p>Administrators: Right to possession, etc.', of real estate. The right of an administrator, nnder the statute {Comp. L., § 290U) to the possession of the real estate of his intestate and the rents and profits thereof, pending the settlement of the estate, is pot an estate or right of property.; nor is it an interest which the administrator can dispose of as such. This right is a mere statute power, given for the benefit of creditors and dependent upon the statute.</p> <p>Legislative power: Repeal of statute: Administrators. It is competent for the legislature to take away from the administrator the power of taking or holding the possession, rents, and profits of the real estate of his intestate, by the repeal of the provision of the statute upon which alone the power depended; and this, as well'after as before the administrator had taken possession; and such was the effect of the amendment of said statute in 1871. {Sess. L. 1871, p. 80.)</p> <p>Right of possession'of re'aZ estate of deceased persons. This right of possession is not one of which the probate court lias exclusive jurisdiction, or, since the passage of said amendment, any jurisdiction at all; and it is no defense to an application for a writ of possession nnder the decree in a partition suit.</p> <p>Administrators: Costs. Where, in a partition suit, a petition is filed for a writ of possession under the’ decree, and the persons who are acting as administrators of the common ancestor are made defendants in their individual capacity, and they claim the right to possession, only as such administrators, notwithstanding the repeal of the statute conferring that right, if it appears that they did not take and hold the possession in good faith, or for any legitimate purpose of administration, costs will he awarded against' them individually, and they will not be entitled to charge the same against the estate.</p> <p>Special damages. In this case damages nnder the statute for the vexation and delay of the appeal were awarded to the appellees.</p>

The opinion contains a sufficient statement of facts except as to the questions put to the witnesses, Wilson and Curtenius, which were objected to as leading. Benjamin Wilson testified that he was deputy United States collector, and had been since June 15, ,1869. He was then asked: “Have you paid the firm of Hascall & Bullard any thing for the goyernment on account of any claim belonging to them against the goyernment?

<p>Levy and sale: Becord of deed: Attachment: Bona fide purchaser. An attachment levied in October, 1840, and sale under it in February, 1842, but the deed, not recorded until 1868, will not prevail against a bona fide purchaser whose deed was recorded in 1843.</p> <p>Begistry laws: Levies: Execution sales. The effect of the various registry laws in regard to levies and execution sales discussed.</p> <p>Sheriff's deed on, execution sale: Purchaser under attachment levy. Until the sheriff's deed is executed, no one holds tile legal position of a "purchaser ” under an attachment levy, within the registry laws. — Columbia Bank ¶. Jacobs, 10 Mich., SU9.</p>

<p>Constitutional law: Private property: Necessity: Water-power manufactories. In proceedings under the statute (Sees. L. 1865, p. 651, and Sees. D. 1867,-p. 193), to obtain water-power to operate a manufactory, the necessity for the taking must, under our constitution (Art, XVIII. § 3), be passed upon; and a finding that the taking is to be for the public use is not sufficient.</p> <p>Costs. The proceedings in the court below having been without jurisdiction, in consequence of a defect in the statute, in not providing that the necessity for the taking shall be passed upon, this court, on vacating and setting them aside, awards the costs of this court alone.</p>

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

<p>Error to Sfc. Clair Circuit,</p>

<p>Equity pleading and practice: Default. A complainant can take no decree where there is a default at the hearing, unless it be such as would be authorized by the state of the pleadings had there been no default.</p> <p>Decree on, bill and answer, without replication or proofs. Where the answer is such that the burden lies upon complainant to. overcome it, and he does not-reply or introduce proofs, he is entitled to no decree as to any matter not admitted.</p> <p>Facts not admitted by answer, considered as denied : Burden of proof. Where an answer does not admit a fact set up in the bill, no denial is necessary; but the failure to admit is equivalent to a denial, and throws upon the complainant the burden of proof.</p> <p>Fractice in case of an omission to reply through inadvertence or mistake. But where the omission to reply was evidently the result of inadvertence and a mistaken view of the practice, the court did not dismiss the bill, but allowed the complainant to reply and introduce proofs, on equitable terms.</p>

<p>Application for mandamus.</p>

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

Hoffman brought bis action of trespass in tbe Wayne circuit court against Sbaw to recover treble damages under chapter 137. Comp.

<p>Bill in equity: General demurrer. A bill is good on general demurrer if it contains any matter entitling complainant to equitable relief.</p> <p>Bill for partition : Needless allegations. A bill for partition, showing that defendant is tenant in common with complainant, and that the latter also bolds a mortgage on the interest of the former, makes out a good cause for partition, which cannot be affected by any further needless allegations of grievances, if they are not inconsistent with the title set up.</p> <p>Partition: Allegations concerning rents and profflts. Allegations concerning receipt of rents and profits by defendant, are not repugnant, and may, under some circumstances, become relevant upon the settlement of partition proceedings.</p>

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

This was an appeal by Ann Bailey, from the order of distribution of the estate of Joseph C. Bailey, deceased,granted by the probate court for Ingham county. On the trial of the appeal in the circuit court, the order of the. probate court was affirmed, and the cause is brought to this court on writ of error.

<p>Certificate of deposit: Promissory, note: Declaration. A certificate of deposit whieh is dated and is in the following form, viz: "H. C. Riggs, Esq., has deposited in this bank five hundred and fifty dollars, payable to the order of Rufus Cate, with interest if left three months, on the return of this certificate," is in legal effect a pro'missory note, within the meaning of the statute (Comp. .L. 1857, % U161) providing for declaring upon bills of exchange and promissory noteB by appending a copy thereof to the money counts.</p> <p>Endorser: Certificate of deposit: Presentment for payment. Where such a certificate has been transferred by the payee and endorsed by him before the expiration of the three months, with a special request not to present it until the expiration of the three months, and the accrued interest at the date of the transfer, was actually paid to him on the transfer, and the purchaser presented it the next day after the expiration of the three months, and the bank has, in the meantime, failed, such payee, in an action against him as endorser thereof, by such purchaser, is not relieved from liability on the ground that the presentment for payment was not in due time.</p> <p>Certificate of deposit; Endorser: Promissory note. The endorser of such a certificate assumes the same liability as the endorser of a promissory note of like tenor.</p> <p>Charge to the jury construed. Where, in response to a request to charge that the plaintiff is not entitled to recover upon said instrument against the defendant as endorser, because the same is not in law a negotiable promissory note, the court charges that the instrument is a promissory note, and that the defendant is liable as endorser upon the same, such charge will be construed to mean only that the defendant was liable as an endorser in the same manner and to the same extent as if tlie instrument had been a promissory note in the ordinary form, endorsed by him, and is not open to the objection that it took the evidence entirely from the jury.</p>

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

<p>Error to Lapeer Circuit. -</p>

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

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

Motion to dismiss writ of error, on the ground that the same was sued out in bad faith and contrary to the stipulation of two of said plaintiffs in error. The writ of error was in the name of Edward Cole,. Luman Jenison, and Hiram Jenison, as plaintiffs in error,, to review a judgment rendered against them as defendants, and in favor of said Thayer, as plaintiff, in the circuit court for the ^county of Ottawa.

•Error to St. Joseph Circuit. „ In view of the importance of the question involved,' the court of its own motion ordered a re-argument of this cause.

<p>Divorce: Residence: Jurisdiction. The courts of a state have no jurisdiction to decree a divorce between parties who. do not reside therein, but have a permanent domicil in another state.</p> <p>Residence: Recitals: Evidence. The recitals in the record of a divorce case, that the parties are residents of the state where the suit was instituted, do not preclude the showing, in another state, where the divorce comes collaterally in question, that the parties never resided in said first mentioned state, and that* the suit was fraudulent and collusive.</p> <p>Constitutional law: Jurisdiction of courts: Judgment. The provision in the constitution of the United States that full faith and credit shall be given in each state to the records and judicial proceedings of every other state, does not preclude an inquiry into the jurisdiction of courts; and if, in fact, the subject matter of a suit was not witbin the jurisdiction of the state, from which the court derives its authority, its judgment is a nullity, and may be so treated everywhere.</p> <p>Divorce. The subject matter of a divorce suit is the bond of matrimony existing between the parties ,* and if the parties have no domicil in the state, a divorce which its courts assume to grant, whether deceived or not as to the fact of residence, is absolutely nugatory.</p>

<p>Sailroads: Collision with wagon: Negligence of driver. In an action against a railroad company, for injuries received by the plaintiff, in a collision between a locomotive and the wagon in which plaintiff was riding, negligence on the part of the person owning and driving the team attached to the wagon, affects the right of the plaintiff to recover, equally with her own negligence.</p> <p>J'Plaintiff's negligence. The plaintiff cannot recover in such action, if her own negligence, directly or proximately, contributed to produce the injury, though the defendant’s negligence may also have concurred in producing the result.</p> <p>■Seasonable care: Situation or condition in life : Charge to the jury. The reasonable care which the plaintiff, and the driver of the team, under the circumstances of this case are required to exercise, is not limited or affected by their "“'situation or condition in life;” neither their station in life nor any personal. ¡peculiarity of either of .them had any thing to do with the question. And a 'charge to the jury that they were required to exercise only such care as “persons of their situation or condition in life ” would ordinarily exercise under like circumstances, is erroneous.</p> <p>Inconsistent instructions to the junj. A charge to the jury, which, as a whole, is inconsistent, and impossible to be reconciled or understood by the jury, is erroneous on this ground.</p> <p>Burden of proof: Negligence of plaintiff. In such an action the burden of proof is upon the plaintiff, to show that she acted with due care, or that her own • negligence did not contribute to the injury, as well as tliafc the defendant was guilty of such negligence; aud a charge to the jury, that “the plaintiff is not hound to prove more than enough to raise a fair presumption of negligence on the part of the defendant, and of resulting injury to herself; and if she does this, she is entitled to recover, unless the defendant produce evidencesufiicicnt to rebut the presumption,” is erroneous.</p> <p>Evidence: Negligence. The evidence in this case tended affirmatively to prove actual and gross negligence on the part of the plaintiff, and the person driving the team after which she was riding, which contributed directly to produce the injury complained of.</p> <p>Failure to use one's senses to avoid threatened danger, is negligence. A. person about to pass a railroad track, is bound to recognize the danger, and to make use of the sense of hearing as well as of sight — and, if either sense cannot be rendered available, the obligation to use the other is the stronger — to ascertain, before attempting to cross, whether a train is in dangerous proximity; and if he neglects to do this, hut ventures blindly upon the track, without any effort to ascertain whether a train is approaching, it must be at Ms own risk; such conduct is, of itself, negligence, and should be so pronounced by the courts as . matter of law.</p> <p>Absence of mind. It is no excuse to a plaintiff seeking to recover for injuries ’ received under such circumstances, that he was absent minded, and did not look to see, or stop to hear, the cars.</p> <p>Seasonable care ; Judicial notice. Courts are hound judicially to know that no care is not due, or reasonable, care; that when no care whatever has been used in approaching a known or threatened danger, and no effort whatever made to ascertain or avoid it, reasonable care has not been exercised, and the party has been guilty of negligence.</p> <p>Judicial knowledge: Laws of nature: Principles af human action: Railroad transportation: Rate of speed: Highway crossings. The laws of nature and' of the human mind, at least such of them as are obvious to the common apprehension of mankind, as well as the more obvious dictates of common, sense, and principles of human action — which are assumed as truths, in any process of reasoning, by the mass of sane minds — constitute a part of the law of the land, and courts are bound judicially to know and apply such laws and principles, accordingly; they are bound to recognize the essential differences in the nature and modes of travel and transportation npon railroads, and ordinary highways, both of which are authorized by law; that greater speed in travel and transportation, is one of the objects of authorizing conveyance by rail; that locomotives and heavy trains cannot be suddenly stopped, or turned out of their course, and that the authority given by law to railroads to cross highways, and fixing no limit to their speed, necessarily gives them the preference at the crossings, otherwise their rate of speed must be so reduced, and the regularity of trains so interrupted, as to defeat the very object and purpose of railroad transportation.</p> <p>Diligence: When a question of law. The question of diligence or reasonable care, is generally one of mixed law and fact, and never exclusively one of fact; juries may act upon the question only where there is some evidence tending to prove it; the relevancy of evidence and its tendency to prove diligence, or whether there he any such evidence, is a question of law; where the facts are found or admitted, if they be such that all reasonable men will be likely to draw from them the same inferences, or where there is no evidence tending to prove diligence, the question is one of law.</p> <p>Railroads: Woodpiles: Obstructing view of track: Highway crossings. Whether the piling of wood, by a railroad company, by the side of its track, adjacent to a road crossing the track, in such manner as to obscure the view of approaching trains, imposes upon the company the duty of greater care or caution, in running their trains, or making use of extra means of notifying those about to cross, when trains are approaching: — Quaere?</p>

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

The petition alleges that the National Life Insurance Company is a corporation incorporated under the laws of the state of Illinois, having its principal office at Chicago; that previous to February 2, 1871, it complied with all the laws of the state of Michigan prescribing the terms and conditions upon which foreign insurance companies are permitted to transact the business of life insurance within said state, and that a license to do business within the state was issued to…

<p>Railroads: Livestock: Common carriers. Railroad companies are not, by the common law, common carriers of live stock, and can only make themselves common carriers of that species of property by assuming to convey it as common carriers. — S. & H. I. R. R. Co. v. McDonough, 21 Mich., 165.</p> <p>Pleading: Declaration: Common carriers: Live stock. Under a declaration in case, which alleges, as a cause of action, tlie violation by a railroad company, of the duties of a common carrier in its transportation of live stock for the plaintiff, and which charges the defendant as common carrier only, proof that the company possesses the character of common carrier of live stock, is essential.</p> <p>Evidence: Common carriers: Variance. Evidence that a railroad company had carried, and still offered to carry, live stock for hire, for all who desired, on terms, as to duties, liabilities, and relations, not recognized by the law of common carriers, but in some respects variant, and in others repugnant thereto, does not tend to prove that such company is a common carrier of live stock.</p> <p>One who has never assumed or offered to carry chattels of a certain class, except upon special terms exempting him from all the important duties and liabilities of a common carrier, cannot be classed among common carriers of property of that kind, or be made amenable in the character of a common carrier as to such property.</p>

The petition of the relator sets forth that James Flanigan and George Norton enlisted, and were mustered, into the military service of the United States, as privates, on the 20th day of March, 1865, and after the passage of an act of the legislature, approved February 4th, 1865, providing for the payment of bounties to volunteers, entitled “An act to provide for the payment of bounties to volunteers in the military and naval forces of the United States,” and that said…

This was a suit in attachment, brought by Walsh against Daniel T. Wells and Edward 0. French. The writ was not personally served. A notice in attachment was published -for six consecutive weeks, commencing June 27th, 1871, and affidavit of such publication filed in said cause on the 12th day of September, 1871.

Joseph Circuit. Frederick W. Cole, a minor, by liis guardian, Edwin EL Lothrop, presented a claim against the estate of Norman A. Cole, deceased, to the commissioners to receive, examine and adjust claims against said estate, which.was disallowed by them, whereupon he appealed the matter to the circuit court for St. Joseph county. Pending said appeal, said appellant came of age, and thenceforth prosecuted said suit in his own name.

Appeal in Chancery from Ionia Circuit. This was a bill filed by Jane Fisher, to quiet title to the lands described therein.

Appeal in Chancery from Kent Circuit. This bill was filed to enjoin the defendairts from excavating upon their own premises and establishing a reservoir of water there, because, as was claimed, it would result in cutting off and diverting from its natural course, a subterranean stream or water course that issued from the ground in a perennial spring upon complainants’ adjoining premises, where the latter had long used . it in their brewery, in the manufacture of malt liquors.

<p>Statute construed: Rape: Force. Under our statute (Comp. L., 1857, § 5780), force is an essential element of tlie crime of rape; and tlie force contemplated is something more than -that which is always essential to the act of sexual intercourse itself, when performed with the assent of the woman.</p> <p>Charge to the jury: Rape: Force. In a trial for rape, a charge to the jury, that, if the defendant procured the consent of the woman by means of false and fraudulent representations made for that purpose, that, as a part of his medical treatment of her, it was necessary for her to have carnal connection with him, and she believing and relying upon such representations, gave her consent, and had connection with him, he was guilty, is erroneous, for the reason that it leaves out and wholly ignores all idea of force as a necessary clement of the crime.</p> <p>Statute construed: Rape: Force. The force contemplated by the statute is not confined to the positive exertion of actual physical force in the act of compelling submission of the female to the sexual connection, but includes, also, any force or violence threatened, as the result of non-compliance, and for the purpose of preventing resistance, or extorting consent, and sufficient to create a real apprehension of dangerous consequences or great bodily harm, or in any manner to overpower the mind of the victim so that she dare not resist.</p>

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

<p>Partition: Tenant in common: Purchaser. A tenant in common whose interest becomes severed by partition, is a “purchaser’ of the interests of his co-tenants in the lands set apart to Mm.</p> <p>'JExecution: Levy: Defect. A levy made daring the life of a judgment debtor, cannot be cured, by proceedings after his death, of any radical defect.</p> <p>Notice of levy: Sale of lands not described. The notice of levy filed by a sheriff in the registry, is a solemn official declaration which will not permit him — as against a purchaser from the debtor — to make a valid sale of any lands not described therein-</p> <p>Levies and sales: Statutes construed. The law of levies and sales considered, and the statutes referred to.</p>

<p>Personal property : Trespasser: Assumpsit; Implied promise. Assumpsit will not lie for tbe value of personal property, against a trespasser who has wrongfully taken, and still retains, the same in his possession. The law will not imply a promise when the circumstances repel all implication of a promise in fact.</p> <p>When the trespasser has sold or disposed of the property, and received money or money’s worth for it, the owner may waive the tort, and affirm, the sale, as made on his behalf, and recover the proceeds in an action of assumpsit.</p>

Exceptions from the Recorder’s Court of the city of Detroit.

<p>Covenant against incumbrances: Subsequent vendee: Money had, and, received. Where an original vendor covenanted against incumbrances, and paid to his vendee the money, expressly to take up an outstanding mortgage, such vendee became bound to apply it in favor of his own subsequent vendees who took with similar covenants, and is liable to refund-the money paid by one of them to redeem it. His receipt of the money, under those conditions, made him a trustee for their benefit, and an action for money had and received, lies against him in favor of his vendee who advanced the money to protect the title.</p>

Bishop sued Homer B. and Alanson K. Josselyn upon the common counts in assumpsit. The plea was the general issue with notice of set-off. The trial was by jury. The evidence on plaintiff’s behalf tended to show that plaintiff sold and delivered to defendants ten gross of sewing-machine attachments.

Appeal in Chancery from Kent Circuit. This bill was filed by Cyrus Jones, Lawrence E. Prindle, and The First Society of Spiritualists of Grand Rapids, Michigan, against Thankful B. Jones, to obtain a construction of the last will and testament of Ira Jones, deceased. The cause was heard on pleadings without proofs.

<p>Homicide: Hear of great bodily haim: Excusable homicide: Provocation: Manslaughter. Where one, who has just been assaulted and set upon by another, is immediately followed up, in a threatening manner, by the person committing Buch assault, with the intention of scaring or frightening him, into his own house, and through one of the rooms, in the presence of his family, and there shoots and kills such intruder, the killing, if done under the belief, with good reason, that it was necessary to shoot the assailant to save his own life, or to protect himself from danger of great bodily harm, is excusable homicide; and if done under a less degree of fear, and in the excitement and confusion caused by the threatened repetition of the attack, and if, but for this provocation, the shooting would not have occurred, the crime does not exceed manslaughter.</p> <p>Cooling time. Where the whole transaction, in such case, from the first attack out-of-doors to the final shooting in the house, is, in its nature, a single transaction, occupying altogether less than fifteen minutes, it is not proper to treat it as two distinct and separate transactions, with an interval, for the purpose of raising the question of a cooling time.</p> <p>Malice. The fact that, between the first attack and the final shooting, the person who did the killing, armed himself, when taken in connection with what preceded and what followed in this case, had no tendency to show malice.</p> <p>Criminal law: Prosecution should put in evidence of the whole res gestae. The prosecution can never, in a criminal case, properly claim a conviction upon evidence which, expressly or by implication, shows hut a part of the res gestae, or whole transaction, if it appears that the evidence of the rest of the transaction is attainable; and, as a general rule, all tbe witnesses present at the transaction, that are attainable, unless it appears that tbe testimony of those not callea would be merely cumulative, should be called for tbe prosecution before the prisoner is put to his defense.</p> <p>Murder: Statements of deceased- made in extremis: On a trial for murder, tlie statements of the deceased, made after the shooting, and while he was under the apprehension and belief of speedy death, and relating to an important part of the transaction connected with the shooting, are competent evidence.</p> <p>Evidence: Statements of deceased. It is competent to show that the deceased, after the shooting, and while he believed he was going to die, had an interview with the defendant, at which the shooting was talked over, and then and there acknowledged that he was to blame, and asked defendant to forgive him.</p> <p>Error cured. The error committed in excluding this proposed evidence was cured, in this case, by permitting the witness by whom it was proposed to show this fact, to state what was actually said on the occasion alluded to.</p> <p>Murder trial: Evidence: Temper and disposition of deceased,. It was competent in this case to show, that the deceased was a man of high temper and quarrelsome disposition, and known by the defendant to be so at the time of the shooting.</p> <p>Threatened assault: Homicide: Fear: Apparent danger. One who is threatened with immediate attack by an assailant, is authorized to act, and his actions are to be judged, in the light of the circumstances as they appeared to him at the time; and if the assailant follows him up in a threatening manner for the purpose of frightening him, and so as to make him believe that a violent attack is imminent, it is immaterial whether a forcible attack was actually intended or not.</p>

<p>Building contract construed. Under a contract for the construction of a school building, which provides that the work shall he “ executed in the best and most workman-like manner, and agreeably to such directions as may he given from time to time” by the architect, or his assistant [the local superintendent of the work, employed by the district], “and to his full and entire satisfaction, without reference thereon to any other personthat all claims for alterations or extras were to be judged of, determined, and adjusted “ solely by the super intendent,” and that payment should be made on the certificate of the archi - tect, or superintendent, partly on monthly estimates, from time to time, and the balance on completion of the building; whatever passed under the inspection of the superintendent as the work progressed, and was in good faith approved by him, expressly or by implication, was not open to objection on the part of the district afterwards; and the certificate of the architect was not a condition precedent to the right of the contractor to recover for the work so approved.</p> <p>Contract: Performance: Variances. Variances from such a contract which have been treated at the time as immaterial by both parties will not afterwards be held to be departures from the contract; and wliat was regarded at the time as substantial compliance with its terms, constitutes a performance in law. #</p> <p>Building contract: Departures: Recoupment. Intentional departures from such contract, made without the consent, express or implied, of the district officers, architect, or superintendent, and in disregard of their directions, would not bar a recovery for other portions of the work which were duly approved,* but the district would have a right to insist on the proper changes in the work to make it conform to the contract, and to recover any damages sustained by the failure.</p> <p>Building: Acceptance: Taking possession: Payments: Waiver. The mere fact of taking possession and occupying the building by the district for their schools, after the time when, by the contract, it was to be completed, would not of itself constitute an acceptance which should bar any claim on the part of the district to insiBt upon a rectification of any faults, or the payment of any damages they may have suffered by the failure in strict compliance; but. the fact of making payments afterwards without objection, the manner of taking possession, and whether with or without objection to any variation, would have an important bearing on the question of fact, whether any rights were intentionally waived, or whether there was a purpose to accept the building as completed in substantial compliance with the contract.</p> <p>Contract not performed: Recovery on common counts: Recoupment. As to the right of a party in general to recover upon the common counts, subject to a recoupment of damages, where he has not complied strictly with his contract, Allen v. McKibbin, 5 Mich., M9, is referred to, and approved.</p>

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

<p>Unconscionable bargain • Husband and wife : Fraud: Duress: Evidence. TJpon a bill by a wife to set aside an unconscionable arrangement between berself and her husband, procured by the coercion of the latter, the same full and positive showing of actual fraud or duress is not required, as against a stranger. Any undue advantage gained by the use of the marital relation, is a legal fraud on the wife, which courts of equity will not allow to stand to ber prejudice.</p>

Appeal in Chancery from Wayne Circuit. This bill was filed by Joseph Lucking and James Patton, against William B. Wesson, Alfred Goodman, and Ulenna Goodman.

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

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

Case made from the Recorder’s Court of Bast Saginaw. This is an action of assumpsit, to recover from the city the sum of eighty-five dollars and one cent, paid by tbe plaintiff, to tbe city marshal, upon a special assessment for the improvement of Genesee street. It was admitted that the tax was illegal.

<p>Error to ‘Bay Circuit.</p>

Wayne Circuit. It appeared that judgment was rendered April 19, 1871, during tbe March term; that the time to settle a bill of exceptions in tbe case, ivas regularly extended by orders, from time to time, until about July 1, 1871, into tbe May term; that from that time until February 5,1872, no order to extend the time was granted, but that, on that day, an order was entered upon an ex parte application of plaintiff in error, extending tbe time ten days; that within those…

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

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

Appeal in Chancery from Manistee Circuit. Motion to dismiss the appeal, on the ground that the order appealed from, is not a final one.

<p>Exceptions from Branch Circuit.</p>

<p>Criminal law : Examination: Motion to quash. Where one, upon being arraigned upon an information, moves to quash, on the ground that he has never been examined, or waived it, and no evidence taken upon examination, has been certified or returned to the derkj it is error to permit the filing then, as such evidence, of minutes purporting to have been taken by the examining magistrate on an examination of the defendant, but which were not signed by the witnesses; this defect in the supposed depositions is an essential one, and the information should be quashed.. * .</p>

<p>Burning property with intent to injure insurers. On the trial of one accused of burning property with intent to injure insurers, if a contract between the owner of the property burned and the insurance company, is proved, which is valid between the parties, the company would be injured by the burning, and the accused would be liable if he committed the act, whether he himself had ever dealt with the corporation or not. If there is property insured, and an insurer subject to be injured, the statute will apply to any intentional destruction of it in fraud of such insurer.</p> <p>Insurance companies: Corporate existence: Statute construed. The failure of an insurance company, otherwise duly incorporated, to file a certified copy of its articles of association, etc., with the county clerk, as required by the statute CSess. L. 1859, p. 1088, § 9), cannot be set up by private persons to avoid corporate contracts; this provision was not designed in any way to affect the validity of contracts, but simply to facilitate the means of proving the corporate existence.</p> <p>Corporations: Agents. Corporations may appoint agents by parol. — Detroit v. Jackson, 1 Doug. Mich., 106.</p> <p>OMcers de facto. Persons in the actual and unobstructed exercise of office, must be held to be legal officers, except in proceedings where their official character is the issue to be tried as against themselves; the title to office can never be tried collaterally. — Cahill v. Kalamazoo Mut. Ins. Co., 2 Doug., 12k; Druse v. Wheeler, 22 Mich., kS9.</p> <p>Peremptory challenges. It is not error to allow a prosecuting attorney, after having accepted the jury as first made up, and after one of them has been challenged peremptorily by the defendant, and another has been drawn in his place, to challenge peremptorily one of those originally drawn; the right to interpose a peremptory challenge is not lost until the jury are sworn. — Hunter v. Parsons, 22 Mich., 96.</p> <p>Defective record: Discretion. A conviction for burning insured property with intent to injure the insurers, will not be set aside because a witness for the. prosecution was allowed, after the defendant’s case was closed, to answer a question bearing upon the value of the property insured, where the record does-not show that it was not in rebuttal of evidence in defense, or that it was-beyond the legitimate discretion of the court.</p> <p>Error not presumed. Assignments of error based upon rulings permitting questions tobe answered against objection, will not be considered where the record does not disclose the answers given, or that they were prejudicial to the plaintiff in error; it will not be presumed, in such case, that the questions were answered in any particular way, or that the plaintiff in error was prejudiced.</p>

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

<p>Sheriff: Statute construed: Justice's summons. The statute {Comp. L., 1857, § l$l) prohibiting any sheriff from drawing up, or filling up, any writ, etc., for any party, is applicable to the case of the alteration, by a sheriff, by the authority of the justice, of the teste and the return day of a justice’s summons; such alteration being forbidden and illegal, renders the summons void.</p> <p>Justice's summons: Alteration of teste and return day. • Any alteration of the date and return day of a justice’s summons, not made by the justice himself, or by another in his presence and under Ms direction, renders the summons void.</p>

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

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

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

Appeal in Chancery from Kent Circuit. Application for leave to file a bill of review. This was a bill filed by Charles W. Taylor against Francis D. Boardman, Barzillai Boardman, and William B. Ledyard, to quiet title to certain real estate described therein. The comixlainant.claimed title under a sale upon an execution, issued on a judgment against the defendant, Francis D. Boardman.