Volume 26 — Michigan Reports

<p>Title to lands: Partnership: PiU in equity: Agreement: Proofs. Where lands purchased in the name of one partner, are alleged to have been bought with money advanced by the firm under an express agreement that the firm should own them, a hill filed by another partner to enforce the agreement, cannot he maintained unless such express agreement is made out by proof.</p> <p>Partnership funds: Resulting trust. Complainant cannot, under such allegations, rely on the theory of a resulting trust arising out of a purchase with partnership funds, without any agreement to buy for the joint benefit.</p> <p>The facts in this case did not sustain either an agreement or a purchase in fraud of the partnership.</p> <p>Admissions: Conflicting testimony: Conduct of parties: Inferences. Where there is conflicting testimony as to the admissions of parties, it is safer to trust to the inferences to he drawn from their conduct than to attempt to reconcile such a conflict without regard to their conduct. Their acts clearly shown are more reliable than any recollection of their words.</p> <p>Acquiescence: Evidence: Laches. The acquiescence of complainant in the dealings of defendant under circumstances which required different conduct if the former really claimed any rights in the property in dispute, and his failure to assert any rights until the property had become valuable and circumstances had changed, not only operated as strong proof that his claim was ill-founded, but also showed such laches as would disincline a court of equity to entertain Ms suit.</p>

This cause having been heard on a manuscript record and oral argument, it was ordered, in view of the importance of the questions involved, that the record be printed and the cause be re-argued on printed briefs.

<p>information: Perjury: Bill in equity: Verification. An information for perjury alleged to have been committed in swearing to a bill in equity, which does not «how that the bill is of a character required by law to be verified by oath, is 'insufficient, both at common law and under our statute {Comp. L. 1857, § 5821); a general allegation, that the defendant was “lawfully required to declare and depose,” etc.,, in such case, where the oath is not taken upon the trial of a cause, does not sufficiently show that the oath was either “required, or authorized by law.”</p> <p>Perjury: Information: Materiality. An allegation in such information, as to the materiality of the matter sworn to, that “ it then and there became a material question in said bill of complaint, and in said judicial proceeding, whether,” etc., is wholly insufficient and variant from the truth, where the bill is not one whose allegations can be treated as evidence on the trial of a cause; such an oath could only be required, or become material, upon some motion based upon it, and then its materiality to such motion must be alleged.— People v. Fox, 25 Mich., 492.</p> <p>Information: Defect: Evidence. Where the information in such case, is thus defective, evidence that the bill prayed for an injunction, and that the oath was taken, and intended to be, or was, used on a motion for an injunction, does not help the case; such a defect in the information cannot be cured by .the proofs.</p>

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

<p>Juror: Challenge. It is not error to reject as a juror one who is in the employ of one of the parties.</p> <p>Justice’s courts: Decord: Docket entries. The record of the court of a justice of the peace consists of the entries required by the statute to bo made upon his docket.</p> <p>Justice's docket: Eoidence: Judgment: Attachment: Affidavit: Jurisdiction. The docket of a justice of the peace verified by his own oath is competent evidence “of tlie facts stated in it;” but a docket entry of a judgment in an attachment suit, is not sufficient, in the absence of any proof of the affidavit upon which the writ issued, and which is essential to the jurisdiction to issue the writ at all, to prove a valid judgment.</p> <p>The rejection of such a docket entry on the ground that the facts stated in it are insufficient to give it effect in the ease without accompanying or following it up with proof of the affidavit, is not error.</p> <p>Bill of exceptions: Docket entry : Presumption. Where the bill of exceptions does . not show what the contents actually were, of a docket entry claimed to have been erroneously rejected as evidence, it will be presumed that it contained all the enumerated matters required by the statute, but nothing more; it will, therefore, not be presumed that it contained the affidavit for an attachment, or any statement of it.</p>

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

<p>Official bond: ¡Sureties; Approval: Person acting in antagonistic'interests. Where one of the sureties on an official bond given by a city officer, was also mayor of the city, who had concurrent power with the recorder to approve such bonds, the fact that he was a party to the bond would preclude him from acting officially in regard to it; and his knowledge of a fact tending to ’• invalidate it, could not bind the city. He could not act at the same time in a public and a private capacity, and in antagonistic interests.</p> <p>Municipal recof'ds: Evidence, The records of municipal action by a city council cannot be contradicted or supplemented by parol evidence. Where the law requires such records to be kept, they are the only lawful evidence of the action to which they refer.</p> <p>(My controller': Ordinance: Negotiating city bonds: Liability of sureties on official bond. Where a city controller is required to perform “such duties in relation tq the finances” as “shall be prescribed by ordinance,” an ordinance is valid which empowers him to negotiate and dispose of city bonds; and his sureties are liable on his official bond for any misappropriation by him of the proceeds.</p> <p>City controller: Unauthorized disposal of city bonds. When bonds are in his hands in shape to be negotiated, it is his official duty to keep them safely until authorized to dispose of them, and an unauthorized disposal is a violation of duty for which his bondsmen are liable.</p> <p>Charier of Bay City construed; Condition precedent: Ordinances: Mayor'.; Recorder, In the absence of a clear provision to the contrary, a provision in the charter of Bay City, requiring ordinances and the date of their publication to be recorded, and the record signed by the mayor and recorder, was held not to make such record a condition precedent to the validity and operation of an ordinance regularly adopted by the common council. Every ordinance must necessarily be in writing when acted upon, and an ordinance lawfully adopted cannot be defeated by the omission of such a ministerial duty; for, otherwise either mayor or recorder would be able to control or delay the legislation of the city by his individual action, and would possess a practical veto power not conferred or contemplated by the charter.</p>

<p>Citizenship: Children born abroad of parents born in slavery. One who was born in Canada of parents of African blood born in Virginia and held there as slaves until they emigrated to Canada, does not, by removing to the United States, become a citizen by virtue of the act of congress of April 14,1802 (2 V. 8. Stat. at Large, p. 155, § A), making citizens of the children bom abroad of parents 41 who now are or have been citizens.” Persons held in servitude as slaves were not citizens of the United States.</p> <p>Dred Scott's case. The Dred Scott case commented on and held to have been practically overruled before the adoption of the fourteenth and fifteenth amendments to the constitution.</p> <p>Constitutional law : Citizenship. The fourteenth and fifteenth amendments to the federal constitution do not apply to such a case.</p>

Circuit. A deposition of one Frank P. Davis of Putnam county, Ohio, was taken under a commission directed to “Messrs. Swan & Moore, attorneys at law, of Ottawa, county of Putnam, in the state of Ohio.” The order under which this commission issued, was granted on August 8th, 1871, and the notice of the application therefor was served on July 29th, 1871.

This was an action to recover for legal services rendered between 184=8 or 184=9 and June, 1871. Payments had been received in 1851, 1856, 1860, and 1871. In 1852 or 1853 an account of charges and credits up to that time, was presented to defendant, who made no objection to it, but no balance was struck, and no payment was made thereon.

This was an action brought by plaintiffs in error to recover the price of a mower and reaper. The evidence tended to show a sale by plaintiffs’ agents, by a contract made with two of the defendants. Held: when the claimed contract of purchase was made; nor is it claimed that there is any proof of any previous authority or direction to any one or two members to make the purchase, or that the purchase was subsequently ratified or adopted by the board at any regular meeting.

<p>Husband and wife: Ejectment; Parties. Where husband and wife occupy together, as a homestead, lands claimed to belong to the wife, an action of ejectment against the husband alone, to test the validity of a conveyance to the wife, is a fruitless proceeding; the wife not being a party, no judgment respecting the title could affect her rights; and a judgment against the husband could not be 'the basis for disturbing her possession, or warrant his> expulsion from her. The action should ^be brought against both.</p>

<p>Findings of lazo: Exceptions. Special findings of law filed in a cause tried by a circuit judge without a jury, which are not excepted to, will’not bo considered on error.</p> <p>Imprisonment: Duress: Evidence. To make out the defense of duress of imprisonment, it must appear that the party’s action has been influenced by the restraint; the conclusion of coercion is not a necessary one from the fact of unlawful restraint, and especially not, where the party is suffered to go at large, and has every assurance that the restraint, at most, can only subject him to a little inconvenience.</p> <p>Finding of facts: Duress. A finding of facts which, is not in express terms one of duress, is not in legal effect equivalent thereto, unless the facts set forth are such that a conclusion of duress must inevitably follow; it is not enough that they lead to a strong inference of duress.</p>

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

<p>Mon-joinder of co-contractor: Plea in abatement: Demurrer. Where, to a declaration under the common counts, a plea in abatement is filed, averring that the undertaking declared on, consisted of two contracts, one several, and one made with another party, who should have been joined as co-defendant, a special demurrer to such plea, setting up: 1. That the matter pleaded did not appear on the face of the declaration ; and, 2. That it could be shown in defence on the trial, cannot be sustained.</p> <p>Non-joinder of a co-coatractor is matter of abatement. And a plea must generally set up matters not apparent in the declaration. The instances to the contrary are exceptional.</p> <p>Certiorari: Reversal: Immaterial error. Bat uncler the statutory certiorari on s justice's judgment, there can he no reversal, except for matters affecting the merits; and where, under the declaration in question, the only contract proved was the sole contract of the defendant, the error of the justice in disallowing the plea in abatement becomes immaterial, and the judgment will not he reversed on error on that ground.</p> <p>The judgment in this case was reversed in part, for so much of the amount recovered as was in excess of the sum shown to he due by plaintiff’s own testimony, and affirmed for the remainder.</p>

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

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

<p>Promissory notes: Evidence. In an action upon a promissory note it is not competent to show an oral contemporaneous agreement, to reduce the note from an absolute and specific undertaking according to its terms and legal import, to a defeasible engagement; and an offer to prove that the consideration of the note was the delivery of two policies of insurance and the payment of a loss upon another policy, with interest, and without delay, litigation or expense, and that such policy was only paid at the end of a year, after litigation, and without interest, and that the note was delivered only for this purpose and intent, and not as an absolute unconditional promissory note, amounts to nothing more.</p> <p>Promissory notes: Endorsement:. Title: Waiver. Where the endorsement of a prior holder of the note, was not proved on the trial, but the note was admitted in evidence without objection, and no question was specifically raised below, of the title of the plaintiff, the defendant will not be allowed on error, to raise that question upon the refusal lo charge simply that the evidence was insufficient to entitle the plaintiff to recover; such a course of action amounts to a waiver of all right to controvert the fact of transfer of the note to the plaintiff in regular course.</p>

<p>Case made from Kent Circuit.</p>

<p>Garnishee proceedings: Principal defendant: Service: Jurisdiction. To give jurisdiction for tlie purpose of supporting garnishee proceedings, some sort of service as to the principal defendant, must be made within the county; merely taking out a summons against a non-resident of the state, which- is never served, is not enough.</p>

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

Appeal in Chancery from Wayne Circuit. A demurrer having been interposed to the original bill, was sustained, and an amended bill filed, which was also demurred to, and demurrer sustained, and the bill dismissed. From this decree complainant appealed, and had returned as the record, the amended bill and demurrer to it, but not the original bill.

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

<p>Error to Van Burén Circuit.</p>

<p>Indictment for murder: Vei'dict of manslaughter: Acquittal. A verdict of manslaughter upon an indictment for murder, is an acquittal of the higher crime, and renders all further inquiry in regard to it incompetent.</p> <p>Immaterial points not considered. A ruling upon a question which becomes unimportant by reason of an aequittal of the only crime to which it related, will not be reviewed on error.</p> <p>Homicide: Conspiracy. Where parties combine to commit an offense, and a homicide is committed by a part of them in an attempt to escape, one who did not consent, and was not privy in fact, to the homicide, cannot be held responsible by reason of the original combination.</p> <p>Conspiracy. There can be no responsibility against one who is not himself engaged in the act of his associates, unless it is within the scope of the combination to which he was a party, and thus authorized as his joint act.</p> <p>Evidence. It is admissible, in case of an offense which was the termination of a continuous transaction, to show the entire train of connected facts.</p> <p>Evidence: Dying declarations. It is also proper to admit proof of all the facts and circumstances attendant upon the making of dying declarations, to show , more fully what credit should be given to them; and such dying declarations may properly be received to explain all the circumstances of the crime which led to the death of the declarant; they may cover such facts in relation thereto as the dying person could have testified to as a witness. — Hurd v. People, 25 Mich., U05, approved.</p> <p>Suspicious circumstances and practices connected with the taking of dying declarations will not exclude them, but go to their credibility.</p> <p>A prisoner'has the same right as the prosecution to. rely upon the. dying declarations of the person he is charged with killing.</p> <p>Practice in, criminal cases. Where, in a criminal case, there has been no judgment, a writ of error is unnecessary to bring the rulings to this court for review; the case should come up on the exceptions, under the statute.</p>

<p>Voluntary payment: Legal process. A payment made on the demand of an officer under legal process, is not voluntary, although made before any levy; a party is not bound to await an arrest or seizure, but may assume that the officer will execute the process on which he makes demand. First National Bank v. Watkins, 21 Mich., 483, followed.*</p> <p>Payment on legal process: Protest: Interest: Demand. No protest is necessary in such case to authorize an action to recover back the money illegally demanded; but where payment is made without protest, no interest can be-claimed until after demand, or suit.</p> <p>Supervisor: Tax warrant. A supervisor excuting a tax warrant is held to a knowledge of any illegality manifest on the face of the warrant, and is responsible for his acts under it.</p> <p>Assessment: Drain law: Parcels of land: Description. An assessment under the drain law of I860, requires a definite and clear description of each parcel . to be charged as benefited, whereby it can be well identified. An assessment against a tract of forty or eighty acres, which declares that ten acres of each are benefited, without describing such ten acres, is void, as no land can bo charged or sold which is not benefited, and such a description fails to show the particular land affected.</p>

<p>Judgment: Parties: Jurisdiction. Where it appears by the transcript of a justice’s judgment that the action was brought against two defendants, upon a joint promissory note purporting to be signed by both defendants, but service was had on one only, the process being returned as to the other not found, and that the judgment was rendered against the one served alone, this error is not one going to the jurisdiction, and does not therefore affect the validity of the judgment, when attacked collaterally.</p> <p>Justice's summons: Residence: Long summons; Short summons. Under our statutes {.Oomp. L1857, §§ 36G5, 3668, 8669), a long summons only is authorized where both plaintiff and defendant are residents of the county; and a short summons only is authorized where either party is a non-resident of the county; and objection may he well taken, in the suit itself, to the validity oí an unauthorized summons in this regard.</p> <p>Judgment: Transcript: JuHsdiction: Short summons: Residence: 'Presumption. In an action upon a justice’s judgment, the fact that the transcript of such judgment shows that it was commenced by short summons, and that defendant did not appear, will not, under our statutes, — which do not require the fact of residence to be proved before the justice or entered upon the docket,. —affect the validity of the judgment sued upon, where nothing appears upon such transcript as to the residence of any of the parties; it will not be presumed, in the absence of proof, for the purpose of defeating jurisdiction, that, both parties were residents of the county.</p>

<p>Mil in equity: Demurrer: MultifaHousness: Deed: Description: Mistake. Where a father, in making a gratuitous distribution of some of his lands among liis sons, has made a mistake in the description of the land in a deed to one of them, and the grantee in such deed has taken possession and improved the lands intended thereby to be conveyed, and given a mortgage upon the same, and afterwards, on discovery of the mistake m the deed after the father’s death, has procured the other heirs, except one, to convey the lands by proper depcription,. to his wife, for the purpose of defrauding the mortgagee, a bill to foreclose the mortgage, which joins as defendants, the wife of the mor i gago r and the heir whose interest was not conveyed to such wife, and seeks to litigate .their rights to the lands as against the mortgage, setting out all the fads, and prays for a foreclosure of the mortgage and for a correction of the mistake in said deed, is nor. demurrable on the ground of multifariousness in this regard; nor is the complainant required to wait till he has foreclosed the mortgage and become the purchaser, before he can litigate such adverse claims to the land.</p> <p>The decision on this point is, however, expressly confined to the case of an alleged error or mistake in description.</p> <p>Bill in equity: Demurrer: Deed: Consideration. Such a bill is not demurrable for want of equity. It is entirely unimportant whether any consideration was paid to the father for the deed, or whether the conveyance was made in pursuance of a prior agreement; the case stands in this regard, at least so far as the other sons are concerned, who also received a portion of the father's estate at the same time, upon substantially the same principles as if the sons had inherited the whole of the lands so distributed to them and held them as tenants in common, and were undertaking to make amicable partition, and the same mistake had occurred — the portion received by eacb being a consideration for his conveyance to the other.</p> <p>Deed: Mistake: Consideration: Mortgagee: Equity jurisdiction. Where, in a deed given in consideration of love and affection only, a mistake in the description of the premises has occurred, and the grantee, on the faith of such deed, has gone into possession, made improvements and expended money on the lands, a mortgagee of such grantee, who has taken his mortgage in good faith, after such possession and improvements, may maintain a bill for the correction of the mistake against the grantor or his heirs, or purchasers from them without consideration; such mortgagee has the superior equity, as against such grantor and his heirs, and especially as against parties who.have assumed to take a conveyance from them without consideration and for the fraudulent purpose of defeating the mortgage.</p> <p>Deed: Mistake: Good faith. The fact that the mistake was such that it might have been discovered by a careful inspection of the record is, under the circnmstances of this case, immaterial: it does not lie with the grantor, or his heirs, or a purchaser from them without consideration, to insist that the mortgage was not taken in good faith, on this ground, since it does not appear that any of the parties did, in fact, discover it till after the mortgage was given.</p> <p>Deed: Mistake: Collection: Decree. The complainant in this case having no interest in the correction of the deed, except to make the land available for the satisfaction of the mortgage by securing a good title to the purchaser at the foreclosure sale, a decree was entered, requiring the execution and delivery by the adverse claimants, of a release and quit-claim to such purchaser.</p>

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

<p>Garnishee proceedings: Judgment: Service: Default: Recital: ' Under‘Sheriff. In garnishee proceedings the objection to the judgment against the principal defendant, that the order of default purports to be based on a return of service made by the under-sheriff, in his own name, is not well taken: the recital, in such order, was unimportant, since it appears that the return was in fact made in proper torra; but,' if the return had been as indicated by such recital, it would have been good . — Calender v. Olcott. 1 Mich., 344.</p> <p>Declaration.; Service: Copy: Entitling. Nor is tbe objection in such proceedings to such judgment that, in the copy of the declaration served, the name of the county in the entitling was omitted, a valid one: this error in the copy could mislead no one, and the principal defendant himself, does not appear to object to it.</p> <p>Garnishee: Disclosure: Answer: Admissions. The disclosure of a garnishee is the answer of a party, and analogous in its functions to an answer in chancery; It does not stand upon the same footing as the testimony of a witness; whatever is admitted by it may be treated us established.</p> <p>Disclosure of garnishee: Deed: Waiver. Where the disclosure of a garnishee sets forth the giving of a deed, and the consideration for which it was given, any objection to this manner of proving the deed and consideration, is thereby waived.</p> <p>Disclosure: Admission: Warranty deed. The admission in such disclosure, of the giving of a ‘'warranty deed” is construed as admitting a deed with a covenant upon which the grantor would become liable if his grantee was dispossessed under paramount title. — Dwight v. Cutler 3 Mich., 566.</p> <p>Garnishee: Disclosure. A disclosure of a garnishee which sets out the giving of a warranty deed of certain lands, by the garnishee to the principal defendant, for a consideration named, and the dispossession oi the piincipal defendant by legal proceedings under a paramount title, is sufficient to render the garnishee liable for the amount of the consideration money.</p>

<p>Commissioner of the land office: Primary school lands : Mandamus. Where a lot belonging to the primary school lands has been deeded in December, 1800, and has consequently ever since been treated as out of tbe market, the commissioner of the land office will not be compelled by mandamus, upon a show- • ing that such deed is void, and that there is no such society in existence as that named as grantee therein to sell the same now, at the price of an appraisal made July 1, 1650.</p> <p>JStatute construed. The commissioner was authorized, in such a case, if not required, to refuse to make such sale, by the statute {Comp. L. 1857, § 2U58) providing that he may, in his discretion, reserve and withhold from sale such portions of said lands “as in his opinion it may not be advantageous to sell and dispose of, and for so long a time as in his opinion will be beneficial to the several funds affected thereby.”</p> <p>Mandamus: Petition: Demurrer: Admissions. Where the petition for mandamus in such case alleges that the lot in question was subject to entry at a sum specified, on July 1, 1850, a demurrer thereto does not admit, in the absence of any allegation to that effect in the petition, that it was subject to such entry on December 28, 1850, or at any time subsequent to July 1,1850.</p> <p>Mandamus: Petition: Allegations. An allegation in such petition that when the relator applied to purchase the lot on January 28, 1872, the commissioner assigned as the reason of liis refusal, the deed above mentioned, is not equivalent to an allegation that tbe lot was in fact, but for the deed, subject to sale, or that it was subject to sale at the appraisal at the time of the execution of the deed; his omission to assign any other reason is.but circumstantial evidence.</p> <p>Corporation: Mandamus : Admissions. The existence of a corporation capable of taking as grantee in said deed, if denied, would not be tried upon this application for mandamus; and no admission by the respondent of its nonexistence could bind any society, if any did exist, claiming to be the corporation named in the deed.</p>

<p>Declaration: Assignment: Non-negoliable note. A declaration by an assignéo* upon a conditional note not negotiable, need not aver any formal assignment, but is sufficient if it avers the plaintiff to be the owner and holder; a& a parol assignment would be valid at law as it. would be in equity.</p> <p>Conditional note: Election: Notice. Where a person gave his note for a balance of the purchase money of a judgment against other parties, on condition that he might elect to lose what he had already paid in cash, and let the payee retain the judgment, in which case the note was to he null and void:—</p> <p>JETddt That in order to make such election he must give timely notice to the payee before maturity, and that a mere failure to pay the note would not amount to Such an election, and therefore he would continue liable.</p>

<p>Criminal law: Assault with intent to JdlU etc.; Charge to the jury. On a trial for an assault with intent to kill and morder, by discharging a revolver loaded with powder and ball, it is not error to refuse to charge as requested, where, as in this case, tbe charge as given is unobjectionable and tbe evidence does not call for the particular instruction asked, that “the jury must find from the evideuceall the material allegations in the information, such as tbe intent to kill, ■ and the means used sufficient to accomplish It, and that the pistol contained a leaden bullet, as charged; these are material averments, and mast be proved in order to warrant a conviction.” ' »</p> <p>Criminal trial: Prisoner's statement: Cross-examination. Upon cross-examination of‘a prisoner on trial for a crime, upon his statement to the jury; -it is error to allow questions to be put ibat relate to matters outside of that statement, such as whether he had lived or been in a number of places named, and whether at one he had not'been arrested on a charge of murder, and at others, also, been arrested, and at others still been put in jail. — People v. Thomas, 9 Mich., 321.</p> <p>."Error not cured: Instruction to the jury. The error committed in allowing such questions, is not cured by an instruction to the prisoner that he might decline to answer at his option; and especially not, where the asking of the questions is accompanied with the production, in view of the jury, of several letters, in a manner calculated to convey an impression that they contaiu damaging disclosures which the prisoner must either admit or falsify the facts.</p>

<p>Jury: Challenges: Statute construed. It is not a good causo of challenge to a juror, under the statute (Sess. L.s 1869. p. 106, § S) authorizing a challenge of any person who ‘'has seived as a juror upon the regular panel, or as a tales-man, in such court, at any time within one year previous to such challenge,” that he had been summoned upon the regular panel for that term, and had already sat on the trial of one cause at the same term; the service as a juror * upon the regular panel, intended by the statute, is for the whole term, and not merely for ono case.</p> <p>Evidence: Cross-examination: Erre/)' cured. On a trial for murder, where the defense set up is that the killing was done in self-defense, the exclusion of questions, on cross-examination of the wimesses for the prosecution, as to statements made by the prisoner soon after the killing, concerning bruises on his person, and how he received them, if erroneous, was cuied by allowing the defense to examine the witnesses fully on their own behalf, and to call out the facts by like questions.</p> <p>Prisoner's statement: Evidence. It is competent for the prosecution, after the defendant has made his statement, to give evidence, within the proper limits of rebutting testimony, to disprove such statement.</p> <p>Evidence: Exception. The question whether there was any evidence tending to establish malice, will not be considered on error, in the absence of any ruling or exception raising the point.</p> <p>Murder \ Self-defense: Intent: Malice. On a trial for murder, where the defense is that the act was committed in self-defense, and ihc purpose to kill is not so much in issue as the necessity of the killing for self-protection, an instruction to the jury, in substance, that the crime was murder, if the defendant had the purpose to take life, without sóme qualification, is erroneous.</p>

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

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

<p>Referee: Exceptions: Report: Conclusions of law: Findings of fact. Objections to the proceedings before a referee, on matters of practice, must be taken by exception, as in trials at the circuit. And after his report is filed, all exceptions not taken before him must be confined to his conclusions of law; his finding of facts being, in snch case, conclusive.</p> <p>Referee: Non-suit. A plaintiff failing to appear on trial before a referee, will he subject to the same proceedings as on a similar failure at the circuit, and judgment as in case of non-suit, will be rendered against him.</p> <p>Report of referee: Exceptions: Irregularities. A party who excepts to the conclusions of law in a report of a referee, and makes no motion to suppress it, waives all objections to irregularities in the reference proceedings.</p> <p>Taxation of costs: Judicial action: Remedy: Writ of error. The taxation of costs is not “judicial action” in the proper sense of the term,but ministerial, and similar in its nature to the action of auditing officers; it may, therefore, be made by the clerk, and cannot be reviewed on error. An appellate court can only review the proceedings of the circuit court as a court, and that conrfc does not act upon costs, unless on some motion or application to correct the taxation already made by Us ministerial officers; and a writ of error would' not be the proper remedy, if any lies, to review such corrective action.</p>

<p>Error to Van Burén Circuit.</p>

The relators, Henry Loh, James H. Loh and Samuel T. Cooley, sued Charles Bassett and Bamlett C. Wright, in-the .Wayne circuit court, -and’ procured a writ of garnishment to be issued against James A. Hinchman and Thomas Hill.

This action was trespass quare clausum, etc., brought by plaintiff in error, for breaking his close and. committing various grievances, and removing certain fences and sheds. Defendants pleaded the general issue and gave notice of license, and also of title in a Baptise church, of which they were trustees, and as such did the acts in question.

<p>Trover : Timber: Title to lands: State swamp lands: State patent: Evi* dence. In an action of trover for tlie conversion of timber, where the question of title to the lands upon which the timber was cut is involved, a patent by tbe governor, under tbe great seal of the state, of state swamp lands, is admissible in evidence to prove title in the patentee, without proof of the title of the state or the authority of the governor to issue the patent.</p> <p>Trover: Right of action: Assignment: Assignee. The right of action for a tort of this description is assignable, under our statute, and enforceable by suit in the name of the assignee. — Final v. Backus, 18 Mich., 218.</p> <p>Evidence: Good faith: Damages. Evidence, in such an action, that the defendant purchased the lands for a consideration of live hundred dollars, ot one who claimed to have a tax-title, before he cut the timber, to show good faith, could serve only to reduce the damages, and is irrelevant in any other view; and where, if admitted, it ought not to have changed the result in this regard, as where punitory damages are not sought or given, its rejection will not be considered on error.</p> <p>Trover: Timber: Measure of damages. In an action of trover against one who • has wrongfully cut pine timber on the lands of tbe plaintiff, and removed- tho logs to his mill for manufacture, the measure of damages is not limited to the value of the logs at the stumps; where the value at the mill to which the defendant has removed them for his own advantage, exceeds such stumpage, that value is the proper measure of damuges.-“Final v. Backus, 18 Mich., 218 ; Symes v. Oliver, 13 Mich., 9.</p>

<p>Contract: Sale: logs : Title: Delivery. A contract which purports to provide for the sale of a certain number of logs, measuring a given number of feet by a scale that had been made and was referred to, and providing for the delivery of the logs at a point named, is not a present sale of a parcel containing a greater number, though less in amount, by reason of a mistake of the scaler; and no title passed in any of the logs before delivery.</p> <p>Logs: Average size. The purchaser could not, therefore, be held to have waived his objections to the failure to furnish logs of a proper average size, by receiving such as were furnished below it, because he could not assume tha't the average might not be made np by the remainder.</p> <p>Sale: Logs: Scale: Vendor: Warranty. A sale according to a scale already made, without any previous employment of the scaler, by the vendee as well as the vendor, implies a warranty by the vendor that the scaler is competent and the scale honestly made, unless it clearly appears that the vendee assumed that risk.</p> <p>Scaler: Mistake. Even where the scaler is agreed upon, the parties are not precluded from showing a mistake of fact in his computations, although in matters purely of judgment, where there is no mistake of fact, he would bind them.</p> <p>Logs: Average size: Agreement to make good deficiency: Consideration. When a purchaser under a contract has a right to decline receiving logs because below the average size to which he is entitled, and is induced to accept them by a promise that the deficiency shall be made good, the promise is not void, but will be supported by the consideration, and it is not necessary that there should haye been any original fraud in the vendor,' to make such new agreement binding.</p> <p>Evidence: Scale of lumber: Variance in measurement: Mistake : Incomyetertcy. Evidence that the variance between a scale of lumber and its final measurement, is too great to be accounted for by any variance of judgment between competent scalers, will justify a finding that there has been either mistake or incompetency in the original scaling.</p>

<p>Equity jurisdiction: Misrepresentations : Fraud: Ignorance. Where one who is applied to as the owner of lands, by one who wishes to purchase, disclaims title and represents another to be the owner, and countenances and encourages a dealing with such other person on the footing of his being the owner, and represents that the latter will convey in accordance with a previous agreement with himself for such sale, whether he was aware of his rights to the land or not, equity will, in the absence of equitable circumstances of a countervailing character, compel a release for the benefit of the party misled; ignorance of his rights, on the part of one thus misleading, will be regarded in such a caso as his own fault or misfortune.</p> <p>Subsequent dealings: Superior equity. Persons dealing subsequently with one who has thus misled another, while the latter is in possession, held not to have acquired a superior equity.</p>

<p>Wharves: Highways: Title: Public easement. The wharves in the city of Detroit, whether terminating highways or not, are not highways, but are private property, and where they are owned hy the city, may he leased lilce other corporate property to private lessees. The title is proprietary, and not a public casement.</p> <p>Ordinances: Private property: Wharves. It is not competent for the city to pass ordinances to preserve private property, from encroachment, in the caso of wharves, any more than in the case of other property; that protection must be enforced under the laws of the land, and not by municipal ordinances.</p> <p>Harbormaster: Vessels: Rights of navigation. The harbor master of Detroit cam only be authorized to interfere with vessels when they violate the rights of navigation; and his action must be justified uuder existing facts.</p> <p>Legislation: Discretion of officer: Regulations: Trespass. It is not competent by legislation or ordinance, to make the rights and duties of navigators depend on the will or discretion of any officer. They can only be required to obey such, regulations as are equally binding by law on all persons alike. And an officer who interferes with those who are not, in fact, violating the law, acts at his peril, and is a trespasser.</p> <p>Complaint: Harbor master: Disobedience of order's. A complaint is not valid ‘ which merely shows that a party has refused to obey the orders of a harbor master; it must show such conduct as is a violation of the rights of navigation, and aver such facts as would justify the orders and render disobedience-wrongful.</p> <p>City by-laws: Costs. In this case, costs were awarded against the city, which was held to be the real party in interest on whose behalf the prosecution was-brought.</p>

<p>Replevin* According to the general nature of replevin, tlic state of things existing when the suit is commenced, will ordinarily control the determination; and this rule must always prevail, unless very peculiar and unusual reasons exist to prevent it.</p> <p>Chattel mortgage: Mortgagor's interest: Execution: Levy. The fact that a chattel mortgage is past due and unpaid, when it is not actually foreclosed and the chattels remain in the mortgagor’s possession, does not prevent a levy under the statute (Sees. L. 18&f p. U51), upon the interest of the mortgagor in the chattels mortgaged; the mortgagor has a redeemable interest until actual foreclosure, which is leviable, and the purchaser on the execution sale could acquire the right of the mortgagor by payment or tender before foreclosure.</p> <p>Mortgaged chattels: Execution: Right of possession. The officer levying an execution upon the mortgagor’s interest in mortgaged chattels, has a right to take possession of the chattels from the mortgagor, and to detain them in safe and convenient custody, as against even the mortgagee, for the time prescribed by law ior bringing them to sale on the execution, notwithstanding the mortgage is past due.</p> <p>Chattel mortgage : Mortgagee : Execution: Replevin. A mortgagee of chattels, whose mortgage is past due and unpaid but not foreclosed, cannot maintain, replevin against an officer who has taken the mortgaged chattels on-an execution against the mortgagor, and is proceeding lawfully to the sale of the Same, within the time prescribed by law for bringing them to sale on the execution.</p> <p>Replevin: Sale of goods after taken on the writ. The fact that the mortgagee, after bringing such replevin suit against such officer and the execution creditor and obtaining possession of the chattels upon his writ, has sold the same under the power of sale in his mortgage and that such execution creditor has become the purchaser, at whatever price it may have been, is immaterial and cannot influence the result of the suit.</p> <p>Replevin :• Special propei'ty: Measure of damages: Statute construed. Sucha sale would not convey to the purchaser, or invest him with, the special property acquired by the levy, hut only the separate interest represented by the mortgage; and the rights of the defendants in such replevin suit, resting on the special interest represented by the levy, underwent no change by virtue of such sale; it could not, therefore, affect the measure of damages under our statute regulating the judgment in case of separate interests in replevin cases.</p>

<p>Charter of a vessel: Contract: Evidence. In an action upon an agreement for the charter of a vessel, where it appears that part of the agreement was embodied in a letter written by one of defendants, and addressed to defendants’ firm, which was handed to the master of the vess'el to deliver to those having charge of defendants’ affairs at the port where the vessel was to be loaded, the introduction of such a letter in evidence does not preclude the giving of parol evidence as to particulars of the agreement not included in such letter; the letter in question in this case, though made to further the execution of the agreement, was not prepared as a writing having the assent of the parties as embodying their sense of the terms and extent of the agreement, to he appealed to, in case of misunderstanding, as the final proof of the exact stipulations entered into.</p> <p>Notice: Default. In such an action, where it appears that the master of the vessel notified an agent of defendants, who was present at the shipping port, and had charge of the loading of vessels there for defendants, of the arrival of the vessel, and the arrangement made, that defendants’ business office was about a mile distant, and that the weather and situation of the vessel were such that the master’s presence was required on his vessel, in the absence of any proof that either of defendants was at or near the shipping port, this is á sufficient notification to defendants to put them in default, under the circumstances of this case, for not furnishing a tug to tow the vessel into port, and to tow lighters to the vessel and back, as provided by the agreement.</p> <p>Measure of damages; The measure of damages for failure to furnish a tug to tow the vessel into the port of lading, and to tow lighters to the vessel and back, as agreed by the charter, whereby the plaintiffs were prevented from performing their contract, under the circumstances of this case, was the net profits the plaintiffs might have made if the contract had been performed, and also the actual expenses incurred in their attempts to perform.</p>

<p>Injunction MU: Taxes: Assessment: Irregularities. Where a hill to enjoin, the sale of lands for taxes, sets up that each parcel of the lands was assessed for state, county, town, highway and school taxes, stating in round nnmhers the total sum against each parcel, without distinguishing in any way the different taxes, if the complainants fail to show that all these several taxes were irregularly assessed, their bill will not be sustained.. In this case the complainants having failed to prove the illegality of the state and couuty taxes, or to show payment or tender of the same, fheir bill was properly dismissed; the legal charge will not be enjoined in order to cut off that which may be illegal.</p> <p>Taxes: Certificate: Statute construed. The fact that the clerk of the board of supervisors, in certifying the amount of taxes apportioned to be assessed upon the property of each township, etc., followed the old law which had been repealed, and included only the state and county taxes, instead of including, also, the other taxes, as required by the law then in force, cannot impair the validity of the state and county taxes which were certified; the objection to such certificate that it did not include the other taxes is, in its bearing on the taxes which were certified, a mere formal one, not reaching the merits, and under our statute (Sess. L., 1869, pp. 325, 377, § 163) a tax cannot be held illegal on such a ground.</p> <p>State and county taxes. State and county taxes are wholly distinct in their object, destination and amount from the other taxes; they stand upon their own necessity, and have no such natural or legal connection with the others as to be necessarily involved in the same fate.</p> <p>Bill in equity: Taxes: Non-residents. The naked charge that the lands of non-resident complainants are assessed higher, relatively, than the lands of residents, is not alone sufficient to afford a ground for equitable interference.</p>

<p>Promissory note: Consideration : Patent-right: Evidence: Plea: Fraud : Misrepi'esentation. A note given for an interest in a patent issued by the United States patent office cannot be regarded as without consideration, and evidence of the pecuniary worthlessness of the patent is not admissible under the general issue. Any defense arising out of fraud or misrepresentation must be specially pleaded.</p> <p>Promissory note: Alteration: Surety: Maker. The principal maker of a note is not, injured in any way by having the name of a surety added without his consent, and such addition does not invalidate the note.</p> <p>Promissory note: Maker: Incapacity: Intoxication. Bona Jide purchaser. Where a note is signed by a person who, if intoxicated, was yet aware of what he was doing, and not deceived as to the identity of the paper signed, it is not void, and any defense to it must rest on fraud, and not on absolute incapacity; such a note would be valid in the hands of an honest holder for value.</p> <p>Bona fide purchase)'; Fraud will not be presumed. A person who pays value is to be regarded as a rightful holder, unless he is shown to have had such knowledge as would make him guilty of bad faith; and the facts brought home to him must be such as show the defects of title. Fraud cannot be presumed without proof.</p> <p>Motice that a note was given for a patent-Hglit. Knowledge that a note was given for a patent right is not enough to raise any suspicion of its validity.</p>

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

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

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

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

<p>Deed: Evidence: Alteration: Erasure. It is not competent to exclude a deed as evidence upon the ground that a portion of it uppc..rs to have been •written over an erasure; the appearance of the instrument is a fact to be considered by the jury in connection with the explanatory evidence as to the erasure and interlineation, in determining whether the instrument itself is genuine.</p> <p>Estate of deceased person: Claimant: Deed: Erasure: Burden of proof. Where a claimant against the estate of a decedent relies, as the basis of his recovery, upon a clause in a deed, which is claimed to have been written over an erasure, the burden of proving the genuineness of such clause is upon him; and in such case there is no presumption of law that the clause in question was seasonably or unseasonably made, which can change this burden of proof, but the question is one of fact, bound up in the issue, and to be judged of by the jury on the evidence.</p> <p>Charge to the jury: Written instrument: Alteration. A charge to the jury, which, after stating that every alteration on the face of a written instrument detracts from its credit and renders it suspicious when the truth of the alteration is attacked, concludes that, *'it the plaintiff has failed to explain this appearance in the deed to the satisfaction of the jury, so as to remove the suspicion, they are to take this into consideration as evidence tending to show that the deed in its present form is not genuine,11 is erroneous.</p> <p>Charge to the jury. A charge to the jury which is ambiguous and inconsistent, is erroneous.</p> <p>Deed : Alteration; Delivery. The question of the genuineness of such an alteration in a deed is a distinct and separate one from that of the acceptance of the deed as an instrument of conveyance.</p> <p>Estate of deceased person : Deed: Ddivery: Estoppel. The estate of a deceased person is precluded, by circumstances which have worked an estoppel against the decedent himself in his lifetime, from denying the delivery and acceptance of a deed of conveyance.</p> <p>Deed: Delivery: Acceptance: Estoppel. Where the grantee named in a conveyance, has bargained for the property and paid something down towards the purchase, and has executed a mortgage for a part of the purchase price, with covenants of warranty, and delivered the same to the scriveners who held the deed, and has taken and held possession for some time of the lands conveyed, he is estopped to deny a delivery and acceptance of the deed.</p> <p>•Covenant to pay mortgage : Personal disability of mortgagor* One who has purchased lands, and, as part of the purchase price, has covenanted to pay a mortgage given by his grantor, cannot avoid his liability on such covenant by Bhowing that the mortgage was not enforceable against such grantor, by reason of a personal disability to execute a valid and binding mortgage.</p> <p>Probate court: Claims against estates : Issue on appeal: Pleadings. There are no technical rales regulating the form for exhibiting claims in the probate court, or for framing issues for their trial on appeal; substance is more regarded than form, and the simpler the statement the better, if sufficient to apprise the court and parties interested, of the real claim; where, Therefore, the petition in the probate court for the allowance of a claim against an estate, and that which stands as the declaration in framing the issue on appeal, clearly point to the same transaction and demand, the objection that they do not set forth the same identical cause of action, is untenable.</p> <p>Pleadings: Evidence. It is not essential that either of these papers should assert that the evidence of the claim was in writing; and the want of such a statement in the petition to the probate court would not exclude the written evidence; nor would the failure to give such evidence in that court be taken as proof that the litigation in the two courts was upon different claims.</p> <p>Evidence: Deed. The failure to introduce in evidence in the probate court, a deed which, when afterwards introduced on the trial of the appeal in the circuit court, was attacked as having been altered since its execution, would have a bearing upon the question of its genuineness.</p> <p>«Objection: Exception: Assignment of error. An objection to the admission of evidence, which fails to state any ground for the objection, and where the bill of exceptions does not disclose either that it was ruled upon, or that the ruling, if made, was excepted to, will not support an assignment of error.</p> <p>Covenant to pay a mortgage: Subsequent value of land: Evidence. The right to recover upon a covenant by the grantee in a deed, to pay a mortgage given by his grantor, is not affected by the subsequent value of the land, or by the fact that an oil well upon the land was afterwards abandoned as unprofitable; evidence of these facts would be irrelevant, and should be excluded, in an action to establish a claim against the estate of such grantee.</p>

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

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

<p>Circuit judge: Counsel: Transfer of causes: Statute construed. The statute {Corny. £., 1857, § SUf) providing for the transfer of a suit to another circuit whenever the judge in which it is pending “has heretofore been consulted or employed as counsel in the subject matter to be litigated in said suit,” is not limited to the cases alone of consultation or employment before the passage of the statute; this language refers to the time of the application for transfer, and not to the time of the passage of the act.</p> <p>Legislative intent; Rules of construction. The primary object of all interpretation of statutes is to ascertain the real intent of the legislature; and while this intent must be inferred from the language used, it is not the meaning of the particular words only in the abstract, or their strictly grammatical construction alone, that is to govern, but they are to be applied to the subject matter and general scope and purpose of the whole act, and to be considered with some reference to the evil sought to be remedied, and in the light of other statutes in pari materia, as well as the principles of the common law.</p> <p>Transfer of causes: Circuit court commissioner: Jurisdiction. The circuit court commissioner of the county where the suit is pending has authority to make the order of transfer under said statute; although his powers are restricted to those which a circuit judge may exercise at chambers, the fact that the circuit judge of his county is disqualified to act in the matter does not necessarily deprive him of the jurisdiction; the power of that particular judge to act is not the final criterion, especially where the statute gives the power to the circuit judge of an adjoining county.</p>

This was an action of assumpsit, for labor performed, and money bad and received. A large portion of the money claimed, bad been paid over to defendant while be was still liable as surety upou two promissory notes of tbe plaintiff. This money the defendant afterwards applied in payment of the notes; and be testified that it was agreed between himself and the plaintiff, that it should be applied in that way.

<p>Assignment: Suisequent agreement. An assignment which contemplates simply the selling of the assigned property forthwilh hy the assignees, and the application of the proceeds to the payment of debts of the assignors for which the assignees were liable as endorsers, and the retttrn of the surplus, if any, is subverted and superseded hy subsequent arrangements which embrace a continuation of the business of the assignors hy the use of the assigned property, together with, advances to be made by the assignees, with the aid of both parties to the assignment, as well as a third person; such new arrangements cannot be treated as mere aids to the execution of the original assignment; they are not merely subsidiary, but fundamental and repugnant.</p> <p>Bill in equity: Proofs. Where a bill in equity, in its statement of oral agreements which are essential to the relief sought, is indefinite and ambiguous, and the proofs are loose and incongruous, and fail to sustain, by a preponderance of evidence, the substance of the case stated, no relief can be granted.</p> <p>Praud: Diligence ; Waiver. Parties who have been defrauded must use diligence to obtain redress within some reasonable time after discovering it; and are barred by such subsequent dealings as indicate a waiver of their right to complain.</p> <p>Pi'aud: Compromises: Waiver. Where, after discovering that they had been defrauded, complainants made two distinct compromises with defendants, and received from them securities for the amount agreed on, — although compelled to consent by a strong pressure of pecuniary difficulty, — they thereby waived their right to complain of the original fraud. Fraud may be waived and condoned, and a defrauded party must act consistently in refusing acquiescence, in order to keep his claim in force.</p>

<p>Application for mandamus.</p>

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

<p>Certiorari to Cephas B. Dresser, a justice of the peace of Hillsdale county.</p>

<p>Partners: Firm assets: Individual property. Where one partner sells out his interest in a firm to a third person and takes securities for the price, they form no part of the firm assets, but are his private property, in which his former copartner has no concern, and upon or over which he has no lien or control.</p> <p>Partnership: Bill in equity: Parties. Such former copartner may file a hill to wind up the concern and have its assets applied to the payment of its debts, hut in order to do so he must bring in as defendants the persons owning the interest of the retiring partner, who hold their purchase subject to the partnership accounting.</p> <p>Partnership: Bill in equity: Contribution. A bill filed against tbe retiring partner to obtain contributions towards joint debts, and which is not framed as a bill against all persons Interested, nor for tbe purpose of winding up tbe business, cannot be maintained without showing the specific liabilities for which contribution is sought.</p> <p>Bill in equity: Partners. Whether a bill can be filed by a partner for such a limited purpose: — Quare?</p>

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

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

<p>Promissory note: Consideration: Bona Jlde holder : Notice: Evidence. Where the defense of want of consideration, with notice, is set up against one who claims to be a bona Jlde holder of a promissory note, it is not competent, after having shown that the plaintiff, before buying the notes, consulted an attorney on the street as to their being collectable, to show, by an affidavit of such attorney on file, and by the plaintiff’s counsel, the value of the advice so obtained, in order that the jury may infer that the plaintiff contemplated litigation; such evidence is , too remote and ambiguous in regard to the inferences to be rationally drawn from it.</p> <p>Promissory note: Fraudulent alteration: Evidence. Where, in an action upon a promissory note, after a default has been set aside and one trial has resulted in a disagreement of the jury, the defense of fraudulent alteration as to rate of interest, is set up for the first time on the second trial, it is competent to read the affidavit of the defendant upon which the default was opened, and the plea then put in, as having some tendency to show that the new defense was an after-thought and purely fictitious.</p> <p>Bequests to charge: Evidence: Presumption. It will not be presumed for the purpose of holding the rejection of a request to charge to be erroneous, that evidence which the request assumes had been given, but of which the record furnishes no indication, was in fact so given.</p> <p>General exception to entire charge. A single exception to an entire charge composed of distinct propositions, some of which are unobjectionable, cannot be made available to reach those which are objectionable.*</p> <p>Assignment of error must be specific. An assignment of error which points to the whole of such a charge is too general to be considered.</p> <p>Amendments: Terms: Discretion. Where after one trial, the court, in the exercise of its discretion, has permitted the defendant on his own application to amend his plea, and add an affidavit denying the execution of the notes sued upon, on condition that he should stipulate that the amendment should have no other effect than to prevent the recovery of interest between the dato and the maturity of the notes, unless the jury should find that the plaintiff had notice of the forgeries when he purchased, and the defendant has accepted such permission, and complied with the condition without objection, his administrator afterwards prosecuting the suit in his behalf on error, will not be heard to complain of the terms thus imposed.</p>

<p>Summary proceedings for possession of land: Assignee. Under our statute {Comp. L., 1871, ch. 211), providing a summary remedy against persons lidding lands contrary to the conditions or covenants of executory contracts of purchase, an assignee of the vendor may institute the proceedings, as well as the vendor himself.</p> <p>Deed: Title to real estate. An objection to the introduction in evidence in such a case, of a deed from the vendor to the complainant, that it involved the trial of titles to real estate, is not tenable; the validity or sufficiency of the deed may be questioned, it is true, but only as a transfer of the contract, and notas a conveyance of the title.</p> <p>Warranty deed: Contract of purchase: Assignment: Evidence. An absolute warranty deed from the vendor, operates as an assignment of all his rights in the hind described.in the contract, and transfers this remedy to his grantee; such deed is, therefore, competent evidence in a proceeding by the grantee to enforce such remedy.</p>

<p>Chattel mortgage: Pine logs: Mortgagor: Possession: Subsequent purchaser. When the mortgagee of pine logs, which are in the possession of a boom company, neither files his mortgage as required by statute, nor takes any steps to assert or make known his interest in the logs, third parties contracting with the mortgagor, without notice thereof, in consideration of his turning the logs over to them, to extend the time of payment of a debt due them from him, to return the logs to him at the end of such extension, on payment of their claim and interest, and in default of such payment to manufacture enough of the logs into lumber to satisfy the same at fixed rates, to pay certain expenses and reimburse themselves out of the lumber, and finally to return the surplus, if any, to the mortgagor, do not make themselves liable to pay the mortgage by manufacturing the whole of said logs, if insufficient to satisfy their claim in accordance with such agreement.</p> <p>Pine logs: Possession: Boom company: Delivery. The-possession of logs by a boom company for booming purposes only, is that of the owner, and is not in contravention of any right of property, control, or possession in him, but subordinate and subservient to his authority and pnrposc; such custody, therefore, .is no obstacle to such a change of possession or delivery to a purchaser or mortgagee as the nature of the property and its situation permits.</p> <p>Chattel mortgage : Mortgagee: Subsequent purchasers : Consideration. Where the mortgagee has thus allowed the mortgagor to appear to all the world as owner, and suffered the property to remain precisely as though he had no incumbrance upon it, and third parties have in good faith entered into and carried out such a contract with the mortgagor, it cannot be said that the whole consideration thereof was the pre-existing debt alone, and that, therefore, their rights are subservient to the mortgage; whether considered as a sale or security, the consideration was sufficient to impart to the transaction the go.od faith ipade essential by the statute, to give it precedence of the mortgage.</p>

<p>Promissory note : Patent-right; Consideration : Bona fide purchaser. Notice to a proposed purchaser of a promissory note, that it was given for a patent-right, is not enough to put him on inquiry, so as to preclude his becoming a bona fide purchaser. — Miller v. Finley, supra, p. 249.</p> <p>Promissory note: Endorsement without recourse : Bona fide purchaser. The fact : that the vendor of a promissory note endorsed it “without recourse,” has no tendency to show that his vendee, the plaintiff, is not a bona fide purchaser.</p> <p>Bill of exceptions: Evidence; Presumption. It will not he presnmed that there • was no evidence that the plaintiff paid value for the note sued upon, when the bill of exceptions docs not purport to give all the evidence, hut does disclose that the defendant., — impliedly, at least, — conceded such payment, by his course during the trial, and took no exception to the action of the court, in assuming this fact to be admitted.</p> <p>Declaration: Ad damnum clause: Amendment: Discretion. The granting of an amendment to the ad damnum clause of the declaration, to cure a clerical error, during the argument of the cause to the jury, without imposing any terms, when it could not. have prejudiced the defendant on the merits, is but a fair exercise of judicial discretion, which will not be reviewed on error.</p>

Eobert A. Griffin brought replevin against the relators in the Mecosta circuit. The goods described in the writ were seized under the writ, and duly turned over to the plaintiff. The writ was returnable May 2, 1871.

This was a proceeding under chapter 215 of the Compiled■ Laws of 1871, to enforce an alleged lien for materials and' labor, used and expended about the building of a wharf,' etc. The proceedings were carried on in the circuit in-analogy to proceedings in chancery. An order in the form of a decree was entered, sustaining the lien. From this order or decree the respondent took an appeal in' the form of an appeal in chancery.

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

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

<p>Application for mandamus.</p>

<p>Motion for new• trial: Discretion. The granting or refusing of amotion for a new-trial in a civil case, is matter of discretion, and not reviewable as in criminal cases, on writ oí error. — See Hill v. People, 16 Mich. 351.</p> <p>Bill of exceptions : Motion for new trial. The office of a bill of exceptions, in a civil cause, is to bring upon the record the rulings and decisions of the trial court, and it cannot, in such cases, be made to embrace rulings upon new proceedings, taken after the trial is wholly complete and ended, such as a motion for a new trial.</p> <p>Jurors: Alienage: Waiver. In civil causes the proper time to make the necessary inquiries into the qualifications of jurors is before the trial, and not after-wards; and if not made then the objection will be deemed to have been waived. The fact that one of the jurors was an alien, and that this fact was not discovered until after judgment, is not, in a civil cause, as it is in the trial of a felony, ground for reversal of the judgment, on writ of error. This case distinguished from Hill v. People, 16 Mich., 351.</p>

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

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

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

<p>Father and son: Settlement: Administrator: Fraud: Undue advantage. A father’s settlement with his son. for services after he had reached his majority, and the transfer of property made in satisfaction, will not be disturbed in favor of the father's administrator, when there is no proof of fraud or undue advantage.</p> <p>Settlements between father and son. Such settlements are not to be discouraged.</p>

Appeal in Chancery from Branch Circuit. Motion was made on behalf of the appellant, for. a rever» sal of the decree. The showing was, that the testimony on the hearing below, was taken in open court, and that the circuit judge before whom the cause was tried, bad resigned within the time allowed for settling a case to bring up on appeal the-testimony, without settling such case, and that the appeal had been taken without the testimony.

<p>Bill in equity: Attorney general: County funds. The attorney general cannot sue in equity to compel the recipients of money illegally paid out of the county treasury to refund, or the official agents incriminated to reimburse the county; such a right of action is not a matter of state concern, hut is a mere money demand belonging to the county, for which the ordinary remedy by a common-law action is suitable and ample.</p> <p>■JuHsdiction: Waiver. This objection being one of jurisdiction, is not susceptible of being waived by an omission to insist upon it.</p> <p>Attorney general: Pleading and practice: Relator. Where the attorney- general has a right to intervene to restrain unauthorized corporate action, the regular course is for him to proceed by information rather than by bill in equity; and though a relator be named to supply some one to be subject to costs, still the suit is exclusively that of the official agent, and must be prosecuted by his , sanction, and be guided and controlled by his judgment.</p> <p>4Practice in supreme court. In this case, the court holding that they have'no jurisdiction to entertain the complainant’s appeal, to grant the special relief sought, dismiss the appeal, with costs, without affirming the decree below, ■which was in his favor.</p>

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

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

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

<p>Deed : Bill to set aside: Deceit, A deed in bis own favor, prepared and obtained by a defendant, from complainant, an uncle who had stood in loco parentis, and bad placed great confidence in him, and who was at the time supposed to be hopelessly ill, was set aside, the court being satisfied that it was not understood, when made, to be snch a conveyance, or authorized to be made as such, by complainant.</p> <p>Belay: Desire to avoid family litigation. A delay to file a bill at once, was excused by the circumstances of the case, where complainant had been left in full enjoyment and possession, and treated by defendant as the real owner of the premises, and where the bill was filed shortly after defendant changed his course, and set complainant at defiance. In such cases, a desire to avoid family litigation is not to be disfavored, where no one is misled by it to his prejudice.</p> <p>Stay of proceedings: Rehearing: Pfewly discovered evidence: Cumulative testimony. Proceedings will not be stayed to permit an application for a rehearing on the ground of newly discovered evidence, where the statement of the proposed new evidence is very vague, and indicates nothing more than cumulative testimony upon a subject on which several witnesses were sworn before, and moreover, shows that it cannot be fairly called newly discovered evidence.</p> <p>Application for stay of proceedings to apply for rehearing: Practice. The application in such a case should be upon notice, and there should be a compliance with the conditions usually required to prevent injustice.</p>

<p>Criminal law: Information: Indorsing names of witnesses. On tlie trial of ft criminal cause, it is not error under our statutes providing for the indorsement of names of witnesses upon the information, etc., to permit a witness whose name has not been so indorsed, to be sworn on behalf of the people, upon a showing by the prosecuting attorney that he was not apprised that the person called was a material witness before the trial commenced, or until the very time of calling him to the stand.</p>

<p>Secondary evidence: Copy : Parol testimony. There are no degrees of secondary evidence; and where an original paper is lost, and no counterpart is presumed or required to exist, its tenor may be proved by parol as well as by copy;, but any failure to produce a copy, if it is within the power of the party to produce one which is known to be accurate, may be regarded as bearing upon the* credit to be given to the parol testimony.</p> <p>Lost instrument: Subscribing witness. It is not necessary to produce a subscribing witness to a lost instrument. Such witnesses are not expected to be able in all cases to identify instruments, except such as bear their own genuine signatures, and arc not presumed to know the contents of the papers they attest..</p> <p>Lien: Tender: Security: Debt: Payment. A tender, regularly and lawfully made, discharges a lien, and while the debt is not thereby discharged without payment, yet the security is destroyed at once. And the holder of a security upon which a party authorized makes a tender, is not concerned where or on what terms the person tendering the money obtained it, so long as he could have got payment by accepting the tender.</p> <p>Tender: Agent: Authority. A creditor cannot lawfully refuse a tender by an agent duly authorized, if he has reasonable opportunity to learn his authority.</p> <p>Deposition: Justice of the peace. Where a deposition to be used in a circuit court, is taken in another county under § 5892, C. L. of 1871, it may lawfully betaken before a justice of the peace.</p> <p>Evidence. Where a witness, being asked if be knew the subject matter of the suit, replied by giving a general detail in outline of the facts claimed by the parties, it was held to be no assertion of any of such facts, and therefore not objectionable.</p> <p>Creditor: Debtor: Transfer: Fraud. A creditor partly secured, has no right to complain of the transfer of his debtor’s remaining interest as a fraud against him, unless he has obtaind a lien upon it by due legal process; no one who has not prosecuted his claims, has any legal concern with his debtor’s dealings with property. — Glynn v. Phetteplace, supra, p. 383, approved and followed.</p> <p>Chattel mortgage; Tender: Trover ; Mortgagee. A mortgagee of chattels who sold them before condition broken, was held liable in trover for not restoring them upon a lawful tender of the amount due. Such a sale was unlawful, and could not exonerate the mortgagee from the duty of having the property on hand ready to be returned at that time, and the mortgagor and his vendees were not bound to recognize the sale or to look to any one else unless they choso.</p>

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

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

The agreement declared upon, and referred to in the opinion, is as follows: “Whereas, heretofore to wdt, on or about the 7th day of November, 1867, Jefferds Price sold and delivered two horses to Martin Seiber, of Detroit, for one hundred and ninety-six dollars, and also said Jefferds Price gave to said Seiber, his note of twenty dollars, for which he, said Price, received from said Seiber two promissory notes given by Alexander Eaton, jr., for one hundred dollars each,…

<p>Deed: Proviso: Condition: Timber: Removal. A provision in a full covenant warranty deed that “the saw timber on said land is to be the property of the party-of the first part, if he shall remove the same on or before April tl, 1870,”“ entitles tliQ grantor to the timber if removed before the day named, and gives him the right so to remove it; but so much of such Umber as is not removed within the time specified, is conveyed by such a deed to the grantee.</p> <p>Deed: Timber: Removal: Acts of third party. And the fact that a third person, after the lapse of one winter in which nothing was done towards removing the timber, procured the 'grantor’s interest in-the land to be attached,, and when the latter was about to cut and remove the timber, prevented him from so doing by an order in such attachment suit, to st y waste, if done without any combination, collusion, or concert of action, with the grantee,, would not operate to extend the time for such removal, or in any manner affect-the respective rights of the parties under the deed, whether the attachment suit he rightful or wrongful.</p> <p>Nor could it increase the grantor’s rights under such deed, that he was prevented by pecuniary embarrassments, caused by such seizure of bis property, from obtaining the release thereof by bond within the time limited for such removal; his poverty or inability caused by such an act of a third parly, though wrongful, can no more affect the grantee’s rights under such deed, than if produced. by any other cause.</p> <p>Deed: Timber: Title: Removal. In an action iuvolving the title to the timber under such a deed, after the expiration of the time limited for its removal, the-question whether the grantee had been injured by delay in the removal, is quite-immaterial.</p> <p>Statute construed : Conditions : Forfeiture. The statute {Comp. L. 1811, § MIS), providing that tile breach of conditions which are merely nominal, shall not work a forfeiture, does not apply to such a condition as this, which is one of substantial benefit.</p>