Volume 27 — Michigan Reports

<p>Habeas corpus. A writ of habeas corpus will not be granted to review a final judgment in an ordinary criminal cause, for errors which are properly reviewable by writ of error, and where that writ is an adequate remedy.</p>

The petitioner had sued out a writ of attachment and attached certain pictures. The defendant moved for its dissolution before a circuit court commissioner, and it was dissolved. On the hearing before the commissioner the question was raised, who owned the property attached. The plaintiff in attachment claimed the property as his own, and in the petition for a certiorari he insists that he owns it.

<p>Certiorari: School district: Corporate existence: Quo warranto. A certiorari to review proceedings whereby a new school district has been created out of old. districts, must be applied for before the district has been organized and assumed the functions of a, corporation; after that time the proper course is, to take measures to try the legality of its corporate existence by quo warranto, or other direct proceedings against the alleged corporation or its officers.</p>

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

<p>Contracts in restraint of trade : Presumption. Contracts in restraint of trade, which, considered with reference to the situation, business and object of the parties, and in the light of all the surrounding circumstances, appear to have been made for a just and honest purpose and for the protection of legitimate interests, and are reasonable as between the parties, and not specially injurious to the public, will be upheld; and the weight or effect to be given to the surrounding circumstances is not affected by any presumption for or against the validity of the restriction.</p> <p>Consideration. Such contracts, if unobjectionable in other respects, require no greater pecuniary or valuable consideration to support thein than any other contract; and if objectionable in other respects no amount of pecuniary consideration will render them valid.</p> <p>Contracts in restraint of trade; Consideration. When one -who is engaged in any branch of business purchases the business and stock of another engaged in the same branch of business, on the condition that the vendor shall not further carry on this particular branch of business within a reasonable extent of territory, such restraint of trade, being reasonable and fair between the parties, will lie enforced; and the fact that the price paid does not exceed the cost of the goods purchased does not affect the validity of the contract.</p> <p>Contract construed. An agreement made in consideration of such a purchase of the business of sinking drive wells and keeping and selling the materials therefor at Grand Haven, that the vendors would not “keep well-driver’s tools or fixtures, or engage in the business of well-driving,” is construed to impose a restraint upon the carrying on of such business at Grand Haven and within such limits about that city as this business there located would naturally and reasonably embrace, and not such a general and unlimited restraint of trade as to be void; and is.sustained as reasonable, and enforced by injunction.</p> <p>Equity pleading and practice: Injunction; Parties. This sale and agreement having been made by a firm of two persons, one of whom afterwards went into the business alone, and the other as a partner with a third person who is made a defendant, the injunction is limited as to such third person, to prevent him simply from engaging in the business as a partner with either oí tho other defendants, and not to restrain him individually.</p>

<p>Possession of land: Complaint: Surplusage. In summary proceedings under the* statute {Comp. L. 1871, § 6706-28) for the possession of land, a complaint which sets out that the respondent is m possession of the premises, describing-them, and contains the usual allegations of the common printed form, but with the blanks for the names left unfilled, and concludes that the respondent* “therefore, holds said premises unlawfully and against the right of this complainant, and that this complainant is entitled to the possession of the same,” etc., is sufficient; the printed portion, with the unfilled blanks, being treated as if erased, and tbe word “therefore” rejected as surplusage.</p> <p>Possession: Presumption: Notice. The continued possession of a grantor long after the recording of his deed to another, may raise a presumption that, as between himself and his grantee, he has either retained, or since acquired some right to the laud or its possession. This case and Bloomer v. Henderson, S Mich. 395, distinguished.</p> <p>Deed: Bight of possession: Contract to reconvey: Holding over: Tenancy by sufferance. The right of possession transferred to the grantee by a deed absolute on its face is not defeated by a subsequent contract to reconvey in the future upon certain conditions, which is silent upon the subject of possession; and the grantor holding over becomes tenant, either by sufferance or at will, of his grantee.</p> <p>Possession of land: Adverse titles: Evidence. Adverse titles cannot be tried in the summary proceedings provided by statute to recover possession of lands ; but deeds of conveyance may nevertheless become competent evidence in such proceedings.</p> <p>Evidence: Privity: Tenancy by sufferance. An objection to a deed offered in evidence in such proceedings, that it does not tend to show any privity between the parties, is not tenable; privity between the parties is not required to be shown, and in cases of tenancy by sufferance, at any rate, does not exist.</p> <p>Tenancy: Notice. In this case the question whether the tenancy was one at will or by sufferance merely, became immaterial, since both are required to be terminated by the same notice.</p>

<p>False imprisonment: Certiorari: Objections: Practice in supreme court. Where a justice’s judgment in a suit against a justice of the peace for false imprisonment by the issuing of a warrant against the plaintiff, is brought to the circuit by certioraH and there affirmed, only such objections to the validity of the proceedings for the imprisonment, will be considered on error to review the determination of the circuit, as were passed upon in the court below.</p> <p>Üapias: Civil suit: Irregularities: Jurisdiction: Waiver. In the case of a capias in a civil suit, irregularities or errors, however serious, if not jurisdictional, cannot be attacked collaterally; and such irregularities and errors may be waived by a failure to take advantage of them in time, so as not to be open to objection even in a direct proceeding to review the judgment.</p> <p>Whether, in an action for false imprisonment, where the proceedings for the arrest complained of were in fact criminal in character, but were treated by doth parties as civil, the court would be justified in holding the plaintiff to the same rules as if they were civil proceedingsQuaere?</p> <p>Statute construed: Criminal proceedings: Judgment. Proceedings under the statute (Comp L. 1871, § 1998), to enforce a penalty for keeping billiard tables, etc., are criminal in character; the judgment provided for, being both a fine and security for good behavior, etc., for a year, is an entirety,, and no right to prosecute separately for the fine is prescribed; such a judgment is peculiar to criminal remedies and quite foreign to those of a civil nature.</p> <p>Statutes construed: Civil suit: Judgment. Neither section 5268 nor section 6848 of the Compiled Laws of 1871 warrant the recovery of such a judgment in a civil suit.</p> <p>Statutes construed: Justice of the peace: Jurisdiction: Offenses. Justices of the peace have not jurisdiction to try and determine cases under the statute in question {Comp. L. 1871, § 1998); the statute {Comp. L. 1871, § 6525, sub. 8) giving them authority to hear and determine “all other offenses punishable by fine not exceeding one hundred dollars, or punishable by imprisonment in. the county jail not exceeding three months, or punishable by both said fine and imprisonment,” does not include such an offense.</p> <p>Statute construed: Gaming: Complaint: Warrant: Justice of the peace: Examination: Prosecuting attorney. A complaint and warrant based upon this statute are to be construed as preliminary steps in a criminal procedure looking to an examination, as provided by chapter 259 of the Compiled Laws of 1871, and not to a trial before the justice; and the intervention of the prosecuting attorney is not essential to their validity.</p> <p>Complaint construed: Collateral attack: Jurisdiction. The complaint in question in this case, though not full, direct and precise in its statement of facts, cr technically accurate, is held sufficient to give jurisdiction, and therefore not open to objection when attacked collaterally.</p> <p>An allegation in such complaint that the respondent “has incurred a penalty by the violation” of the statute (naming it hy page and section) and that the billiard table was kept in his house, and was resorted to for play with his knowl- ‘ edge and consent, is a statement, by implication, and in argumentative form, that the table was kept in a house “by him actually used or occupied;” and is not open to objection for want of jurisdiction on this ground, in a collateral proceeding.</p>

<p>Plaintiff in error moved to strike the case from the' docket as improperly noticed for hearing for the reason that it was not in a condition to he noticed.</p> <p>The bill of exceptions was removed from the files for-amendment by order of the court by consent at the October term; and the amendments were not completed and the bill of exceptions had not been returned when the notice off hearing was served.</p> <p>Error to Washtenaw Circuit.</p> <p>The sixth, seventh, eighth, and ninth assignments off error referred to in the opinion were as follows:</p> <p>“6. The said circuit court erred in each of its ruling» and decisions shown by the bill of exceptions in this cause,, rejecting each matter of evidence which was offered to be proved on the part of said Polhemus, and rejected by said circuit court, to which exception was taken on the part of said Polhemus, as shown by the said bill of exceptions,, assigning error on each of said rulings and decisions separately.</p> <p>“ 7. The said circuit court erred in each of its rulings and decisions overruling each of the objections made on the part of said Polhemus to the reception of evidence offered on the part of said bank, which' was received in evidence and excepted to on the part of said Polhemus, as shown by Eaid bill of exceptions.</p> <p>“ 8. The said circuit court erred iu each of its decisions excepted to as shown by said bill of exceptions.</p> <p>“9. The said circuit court erred in giving the judgment shown by the record in this cause.”</p>

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

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

<p>Application for mandamus.</p>

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

<p>Fraudulent sale: Third parlies: Creditors. One who has received goods of B, under a conditional arrangement to bay them of him, bat who is not a creditor of A, or the representative of a creditor, is not in a situation to attack a prior sale of said goods by A to B, as fraudulent against A’s creditors.</p> <p>Trover: Fraudulent sale: Garnishee proceedings: Fes inter alios. In an action of trover, brought by B against C, for the conversion of goods which B had bought of A, and then sold to C on condition that payment should be made on delivery, it is no defense that C has been garnished by A’s creditors, whether the sale from A to B was voidable at the instance of A’s creditors or not; B’a title could not be divested or in any way affected by these garnishee proceedings to which he was not a party.</p>

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

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

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

The relator brought suit in the Wayne circuit against Zina Lloyd, by summons in a plea of “trespass on the Case,” which was duly served. He afterwards declared in an action for breach of covenant.

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

Defendant in error moved to dismiss tbe writ on tbe ground that tbe determination complained of was a summary statutory proceeding, and not according to tbe course of the common law, and that therefore error was not ihé proper remedy. The court beld that error was the proper remedy, and denied the motion.

<p>.Description of property : Chattel mortgage construed. The description of property-in a chattel mortgage, after enumerating certain articles specifically, concludes^ “carpets, bedding, bedroom furniture, and other personal property in and about said house and premises; except herefrom such personal property as in exempt from execution by the laws of the state of Michigan, to wit: stove® in use, family pictures, library and school boohs, clothing, provisions, fuel and sewing machine; also excepting household goods, furniture and utensil® therein, of the value of two hundred and fifty dollars;” the mortgagors had at the time in said house two hundred and fifty dollars worth of goods, furnituro and utensils, besides the enumerated articles and those exempt from execution :—</p> <p>Held, That, construing this mortgage in the light of the facts found, the exception applies to the property described generally, and not to the articles specifically enumerated, and that the specific articles are intended to be mortgaged unconditionally.</p> <p>Finding of facts: Chattel mortgage : Assignment; Mortgage debt: Presumption. A finding of facts which shows that a chattel mortgage was assigned to the plaintiff for a valuable consideration, in the absence of any showing that there was any other instrument to which the mortgage was collateral, will be construed as a finding of an assignment which was effectual to pass the interest of the mortgagee, and is not open to the objection that it fails to show an assignment of the debt, and is therefore insufficient; it will not be presumed in such case that the mortgage was collateral to any other instrument; on the contrary, the presumption is the other way.</p> <p>Whether the assignment of a mortgage collateral to some other instrument by which the debt is witnessed does not convey the mortgage to the assignee, as trustee for the owner of the debt, so as to authorize that trustee to main tain a suit at law for the property or its proceeds: — Queersf</p>

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

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

<p>Dissolution of attachment. In proceedings before a circuit court commissioner under the statute {Comp. L. 1871, §§ 61*28-81) for the dissolution of an attachment issued upon an affidavit that “ the plaintiff has good reason to believe that the defendant has absconded from the state,” etc., a showing that the defendant had not, In fact, absconded, will authorize an order of dissolution, notwithstanding the plaintiff had good reason to believe to the contrary.</p> <p>Dissolution of attachment: Statute construed. The provision of the statute {Comp. L. 1871, § 61*80), that if the commissioner “shall be satisfied that such plaintiff has not a good and legal cause for suing out the writ,” he may order the attachment dissolved, etc., refers to the state of facts made to appear at the hearing before him, and not what appeared to the plaintiff when the affidavit was made; and the “good and legal cause” must he one existing in fact and not merely in the belief of the plaintiff, however well founded that belief may have appeared to him to be.</p>

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

Information in the nature of a quo warranto. An issue having been framed and sent down to the Macomb. circuit for trial, the verdict and proceedings were certified to this court, and came on for hearing at the July term, upon a motion by the relator for judgment upon the verdict.

<p>■Contract: Grading: Orders; Specific fund: New assessment: Gharter of Lansing : Mandamus. Where a contract was made for grading, whereon the contractor was to be paid ninety per cent, on the engineer’s estimates as the work progressed (the remainder being payable on completion and acceptance), and received orders drawing interest accordingly, payable only out of a specific fund, and the assessment made therefor was invalid:—</p> <p>Held, That a new assessment must be made, and that the charter of Lansing contained provision therefor, which could be enforced by mandamus.</p> <p>Estimates : Legislative power: Vested rights : Evidence. Whether the original estimate was conclusive or not, it was not competent for the legislature to enact a statute which should compel the contractor to be bound by a new estimate made without his assent, or to accept less money than he had actually earned. Such new estimate could in no way prejudice his rights, and would not be admissible in evidence for any purpose against him.</p> <p>Practice in supreme court. An issue was granted to ascertain the amount of the work done, leaving the question of the conclusiveness of the first estimate to be determined on final hearing.</p>

<p>/Seduction: Evidence: Reputation. On a trial for seducing and debauching an unmarried woman, evidence of the reputation of the prosecutrix for morality and virtue at the time of the trial is inadmissible, as her reputation at that time would be injuriously affected by the offense itself when made known.</p> <p>Seduction: Evidence: Chastity: Admissions. In such a case evidence of the admission hy the prosecutrix of sexual intercourse with another person than defendant is not admissible as proof of the substantive fact; nor is it admissible to prove that she was not a pure-minded woman, but was inclined to lewdness, when not offered in connection with other proofs of a habit of lewd talk and conversation, and when no proper foundation had been laid for its introduction as impeaching testimony.</p> <p>Privilege of witnesses. A witness put upon the stand in such a case and asked whether he had ever had sexual intercourse with the prosecutrix, has a right to decline to answer; and it is not error for the court to refuse to require him to give the reason for declining, as a valid reason is manifest.</p> <p>Privilege of witnesses. It is not error for the court to refuse to compel a witness in such a case to answer whether he had not had sexual intercourse with the prosecutrix previous to the alleged offense, notwithstanding any prosecution against him for seduction would be barred by the statute of limitations at the time of the trial, in the absence of any showing that he had not already been complained of, and when a prosecution for rape had not yet been barred.</p> <p>Charge to the jury: Evidence. The granting of a request to charge as to the effect of the refusal of witnesses to answer such questions, that “ the case, so far as those questions and answers are concerned, should stand in the minds of the jury as if the questions had not been asked, or the same as if answered in the negative,” though erroneous standing by itself, could work no barm in the absence of any evidence of the fact of such intercourse.</p> <p>Charge to the jury: Error cured. The erroneous impression which this request might have produced, if given alone, is held to have been cured in this case by the clear, full and positive instructions given in the general charge of the court, which laid down the correct rule in this regard.</p> <p>Presumption: Chastity. It is not error to charge in such a case, that the law presumes a woman to be cbaste until the contrary is shown.</p>

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

<p>Contract: Evidence: Damages. In. an action upon a contract to take and keep a yoke of oxen until a specified time, and to return them at the expiration of the term in as good condition as they then were, without charge for keeping, and to pay for any damages they should sustain, evidence that defendant would not have taken the oxen if he had known their condition as to being well broken, and .that one of them had drank.lye the previous spring, in. the absence of any showing that he had been deceived or defrauded, is inadmissible.</p> <p>Evidence. In such action it is not error to exclude testimony of defendant’s servant as to how other oxen that were treated the same, stood the treatment, where it appears from his own testimony that these oxen were beaten by him in a way and under circumstances that would have justified a criminal prosecution.</p> <p>Charge to the jury: Evidence. Instructions to the jury based on the assumption that the injury to the cattle may have occurred from exposure after their return, were uncalled for, in the absence of any showing that the exposure was unusual, or that the injuries were of a nature likely to be caused by it.</p> <p>Damages: Contract. Under such a contract the defendant’s responsibility for injuries is absolute and not dependent on the failure to employ due care and diligence; and in the absence of any evidence of fraud he cannot discharge himself from liability for any injury actually received by the cattle while in his hands, on any claim that they were less serviceable to him than he expected they would be, or that they had been injured before he took them.</p>

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

<p>Burglary: Entry: Transom window: Breaking. An entry into a building by-raising a transom window attached by hinges above and arranged to fall into the frame by its own weight, when the window was shut into the frame so as to require some force to open it, is a sufficient breaking under our statute {Comp. L. 1871, § 7568), punishing the breaking and entering an office, shop, etc., in the night time, etc.</p>

<p>Trover: Transitory action: Timber: Trespasser. Trover is a transitory action; and an action for the conversion of timber is not made local by being brought against the original trespasser who cut the trees.</p> <p>Change of venue : Discretion. A motion to change venue is discretionary and not subject to review on error.</p> <p>Value: Opinion: Diff&'ent markets: Presumption. The value of logs at one place, cannot be proved by the opinion of a witness having no knowledge of values there, and showing no facts from which it could be got at as compared with values elsewhere. Knowledge of one market justifies no presumption of knowledge of others.</p> <p>Conversion : Damages: Value. Defendants who have sold property and are sued for its conversion, are not liable for value beyond wbat it would have been before, or at the time and place of conversion. Value subsequently and elsewhere is not material.</p> <p>Timber: License: Statute of frauds. A parol license to cut timber for a fixed price for stumpage is not invalid, and is not covered by the statute of frauds, either as a sale of an interest in lands, or as a sale of chattels ; and the licensee is protected by it in regard to all trees cut before revocation.</p> <p>Charge to the jury: License. It is error to leave it to a jury to determino whether such a transaction is a license or sale. It can be nothing but a license.</p>

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

Anson Dolph commenced suit by capias in the Wayne circuit against the relator on January 30, 1872. Declaration for false imprisonment was filed, to which the relator pleaded the general issue. The plaintiff, on motion, obtained leave, March 28, 1873, to amend his declaration by adding a count for malicious prosecution, and afterwards, April 8, 1873, amended accordingly.

Application is made for a writ of certiorari to bring up for review the action of respondent in charging back to Midland county certain taxes assessed upon lands included in the land grant to the Flint & Pere Marquette railroad company.

Clair Circuit. This was an action of trespass quare clausum, brought by Haner against Platt before a justice of the peace and certi-fled to the circuit upon notice that the title to land would;, come in question. On .the trial the question appeared to be-, one of disputed boundaries, and parol evidence was admitted against objection, of the description of premises contained in the United States patent of the lands in question.

.¿Error to Lapeer Circuit. Tomlinson & .Waterbury sued Howard, Pardo & Halstead assumpsit on the common counts. Personal service was had on all the defendants, and they made default. The first •■•default was entered August 37th, 1873, and the default absolute, August 30th, 1872. The reference to assess damages was to the court.

<p>Application for mandamus.</p>

<p>Jh'oMbltory liquor law: Amendments: Tested rights. One who had paid moneys for liquors sold to him in violation of the prohibitory liquor law, as it existed before the amendment of 1871, had a right to recover it back as money paid without consideration, and this right of action was a vested one which subsequent changes in the statute could not affect.</p> <p>Prohibitory liquor law: Moneys paid for liquors: Bight of recovery. The right of recovery under this statute is not limited to the sum paid at any one time*</p>

<p>Contracts: Public policy. An agreement whereby A is to enter into and perform .a contract with the state for the construction of a swamp-land state road, and to give B, who, at the public letting of the work, under the statute, had been the lowest bidder, as a bonus for being allowed to take his place in the contract, a portion of the swamp lands to be secured from the state for the performance of the work, is void as being against public policy.</p> <p>Letting contracts for public work: Collusion: Competition: Combinations. Secret collusive agreements and combinations between proposed bidders to prevent competition at the letting of contracts for public work considered, and the principles upon which they are held void discussed.</p> <p>Statutes construed : Contracts: Public policy. The statutes {Sess. L. 1859, p. 315, § 7: Sess. L. 1868, p. 880), providing that contracts to construct swamp-land state roads shall “in all cases be let to the lowest responsible bidder,” do not admit of the substitution of another person as contractor in place of such bidder; and any contract based upon such illegal substitution is void.</p> <p>Agreement to use influence to get illegal contract with state confirmed. Whether a stipulation in an agreement to use one’s efforts and influence to get a contract with the state confirmed and to use no influence or effort to defeat it would, of itself, render the agreement in which it occurs void: — Qucere?</p> <p>Such a stipulation, however, relating to the consummation and approval of . an illegal contract, cannot be considered unobjectionable in deciding upon the validity of the agreement containing it.</p>

<p>Trover: Bailment: Seasonable care: Conversion: Charge to the jui'y. In an action of trover for the conversion of certain machinery and tools which the defendant leased of the plaintiff and failed to restore at the end of his term, a charge to the jury that a failure on the part of the defendant to keep and care for the goods as a prudent man would of his own, would put an end to the relation of bailor and bailee and render him guilty of the conversion and entitle the-plaintiff to bring trover without any demand, is too broad where the- evidence of want of due care points only to a portion of the property, and as to that, only shows an exposure to possible injury which does not appear to have resulted in fact.</p> <p>Trover: Evidence: Assent: Conversion: Demand. In such a case proof that a mortgagee of the property told the plaintiff none of it must be removed until the mortgage was paid or reduced and the plaintiff replied “all right,11 and that the mortgagee communicated this to the defendant aiid urged him not to let the property go till the mortgage was reduced, is evidence from which assent of the plaintiff to the retention of the properly might have been found; and if he gave such assent he could not hold defendant liable in trover after-wards without first withdrawing the assent and demanding the property.</p> <p>Trover: Offer to deliver: Presumption: Conversion. In tiie absence of evidence of any demand and distinct refusal to deliver up the property, in such case,», notice to the plaintiff that he must remove the property or defendant would charge him rent, is equivalent to an offer to deliver, and rebuts the presumption of conversion; and the fact that such offer was made, not to plaintiff directly, but to another who communicated it to plaintiff, does not lessen its effect. — Campbell,. J., dissenting.</p>

<p>Master and servant: Respondeat superior: Contractor. One who employs another to fill his ice-house by the cord, and obtains license from the municipal authorities to incumber the street for that purpose, cannot shield himself from liability for injuries caused by unlawfully obstructing the street with blocks and fragments of the ice, under an objection that his employe'was a contractor and alone liable. Detroit v, Corey, 9 Mich., 165, cited and held to be decisive of the question.</p>

<p>Promissory notes: Payable in Canada, “in Canada currencyA note made and -endorsed in Michigan and payable in Canada, “ in Canada currency,” is ^payable in money, and is therefore negotiable; such a phrase in a note made here means no more than that it is payable in Canada money at the Canadian standard, as it would have been without such phrase if made and payable there.</p> <p>The use of a superfluous phrase of this kind is too common to indicate or permit any inference that it is to change the natural meaning of the instrument; and this is especially so when such forced construction impairs 'the validity of a contract.</p> <p>Ignorance of the law. Every one is usually bound as if he had a knowledge of the law, whether he has it or not; but there is no rule which conclusively presumes such knowledge as a fact, where that fact is important. Cases referred to expounding the maxim, Ignorantia legis non excusat.</p>

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

Appeal in Chancery from Branch Circuit. This was a bill to foreclose a mortgage giren by Hiram A. Tucker to his parents (the complainants) to furnish them a house and maintenance, and the use of a horse and. buggy, and to perform some other conditions.

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

<p>Partnership: Evidence. The unity of interests in plaintiffs who claim as partners, is not necessarily to be shown by direct proof: it„may bo established by circumstances; and where the circumstances shown have some tendency to prove the fact, and the question has been properly left on the evidence to the-jury, their verdict will not be disturbed on error upon the ground of the insufficiency of the evidence.</p> <p>Evidence: Hearsay: Dicompetency: Irrelevancy. Judgment will not be reversed because hearsay evidence that is not irrelevant has been admitted without objection at the time; by allowing such evidence to be introduced withoat objection a party treats it as competent, and is thereby precluded from raising the qnestion on error.</p>

<p>Equity pleading and practice: Appeal: Notices: S&'Vice. An appeal in chancery in a case where the evidence has been taken in open court will not be dismissed for the reason that the notices of appeal and of settling a case upon the evidence were served upon the appellee in person instead of his solicitor of record» where he is himself a solicitor of the court and has taken part in the management and trial of the cause and made no objection to the service at the time.</p>

<p>Stipulation: Testimony: Cross-examination. Under a stipulation that the “tes* timony ” of a witness who was examined and cross-examined on a former trial, as the same was taken down hy the official stenographer, might be used in evidence, it is error to exclude the cross-examination after having admitted the direct, even though at the request of the party who had conducted such cross-examination.</p> <p>Practice in supreme court: Ert'or: Prejudice. While it is the duty of the party who complains of error to show its existence, it generally devolves upon the other party, on whose motion the error was committed, to show, if he so claims, that the complaining party was not prejudiced by it.</p> <p>Rent: Receipts: Evidence: Relevancy. In an action to recover rent, receipts for rent for certain months preceding those for which recovery is sought, standing by themselves and unconnected with the case by any other evidence, are irrelevant.</p>

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

Appeal in Chancery from Kent Circuit. This is a bill to redeem from a deed given by way of security, and for an accounting as to the amount due. The defendants had been in possession, receiving the rents, and various other dealings and transactions between the parties, claimed to have a bearing upon the accounting, were introduced in evidence.

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

<p>Contract construed; Partners: Sale: Security. A contract of sale by one partner to another of his share and interest in the store and business, together with the goods and all accounts and demands due the firm, which provided for the payment by the purchaser, of all debts of the firm, and of the purchase price* one-quarter down and the balance on time, secured by a lien on “said goods,” etc., is construed to contemplate the holding of the entire goods* and not simply the proportion thereof so sold, as security for the performance of the terms of the purchase.</p> <p>Partners: Shares: Presumption. Partners are presumed, in tlic absence of any showing of their respective interests, to be equal partners.</p> <p>Trover: Mitigation. A defendant in trover can not show in mitigation of his unlawful taking of the plaintiff’s property, his own unauthorized and unsanctioned application of the fruits of his tort, upon a naked personal demand of his own against the plaintiff, not in judgment, nor a lien upon, the property converted.</p>

<p>Mortgages: Foreclosure : Redemption: Subsequent mortgagee. A subsequent mortgagee may redeem a prior mortgage which has been foreclosed by advertisement under the statute.</p> <p>Mortgages ; Redemption: Register of deeds. While the register of deeds has no authority under the statute to receive any thing but money in redemption of a foreclosed mortgage, yet when one desiring to redeem goes to the register prepared to pay the money, and offers to pay it, and the register, knowing the amount, but being too busy to count the money, requests him to place the money in a bank and give a check for the amount, and he does so, and the register, after the expiration of the time for redemption, receives for the check a certificate of deposit in his own name for the amount, it can not be said that this is not such a payment of the money to the register as operates under the statute to redeem the mortgage.</p>

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

<p>Highways; User: Statute construed: Dedication. Under the statute {Comp. L. 1857, § 1079) providing that “all roads not recorded, which have been used as . public highways twenty years, or more, and all roads not recorded, which shall hereafter be used ten years or more, shall he deemed public highways,11 etc., the question of dedication is not involved; the right of the owner to dispute the public user is barred, so far as the prospective provisions of the statute are . concerned, after the prescribed period of uninterrupted and undisturbed user, . whatever the actual intention of the owner may have been.</p> <p>Highways: User; Platting lands. The mere making and recording of a plat upon paper by the owner of the land, ignoring the existence of a road in actual-use, is not such an interference with the public user of such road as to affect the limitation prescribed by the statute.</p> <p>Highways: User: Assessing taxes. The fact that the public taxing officers have assessed taxes upon lots according to a plat so covering a road in actual use as that the lots lie partly within and partly without the space covered by the road, does not estop the public or cut off their right to the use of the road; and especially not "where such taxes do not appear to have been assessed prior to the expiration of the statute period making the public right absolute.</p>

<p>Fraud: Misrepresentations: Buying up encumbrances. One who, while holding out inducements to another, whose estate is largely encumbered, that he will furnish means for him to redeem, and thereby prevents him from looking elsewhere, in the meantime purchases such encumbrances himself and cuts off the redemption, is guilty of fraud, and will not be allowed to enforce his advantage. — Laing v. McKee, 18 Mich., 12U, followed and approved.</p> <p>Equity pleading and practice: Bemedy: Specific performance. A bill will not lie in such case to enforce specifically the giving of a loan as proposed, where there was no complete agreement. The remedy is by way of redemption.</p> <p>BU fin equity: Specific performance : Dismissal: Decree modified. A bill should contain allegations of facts and not mere recitals of circumstantial evidence, and should show the theory on which complainant intends to rely. But where a bill making out a strong case of fraud was dismissed as improperly framed for specific performance, the decree below was so modified as to make such dismissal without prejudice.</p>

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

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

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

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

<p>Landloi'd and tenant: Fixtures: Realty: Personalty. A bar, bar fixtures, cupboard, bowling-alley ways and racks, attached by a tenant to a building occupied by him as a saloon under a lease, held to be permanent fixtures, bo annexed to the freehold as to belong to it and become the property of the landlord, and not to be removable by the tenant’s vendees.</p> <p>Landlord and tenant: Fixtures: Personalty: Estoppel: Waiver. The tenant’s sale of these fixtures as personalty and the taking back of a chattel mortgage upon them as such, could not by itself invest him with any new right as against his landlord, or affect the right of the landlord derived from the previous annexation of them to the freehold, in the absence of any showing that the latter in some way waived or relinquished his rights, or assented to the tenant’s dealing with them as things removable.</p>

<p>Error to Van Burén Circuit.</p>

The relator instituted proceedings before a justice of the peace against one Daniel Bassett to recover the statutory-penalty for forcibly and illegally passing one of the tollgates on relator’s road. The cause was tried by a jury and resulted in a verdict and judgment for defendant. From this judgment the relator appealed to the Wayne circuit court.

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

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

Erwin brought suit to recover back money paid by him to Lapham on a subscription, of which the following is a copy: “ Eor and in consideration of the benefits to be received and enjoyed by us, severally, by the construction and operating of a railroad, substantially on the line of the present Holly, Wayne & Monroe railway, as now surveyed and established, and in consideration of the agreement of the Flint & Pere Marquette railway company to complete the said road as early as…

This is an action of trespass brought by Belier against defendants in error, to recover damages for being forcibly, kept out of possession of certain premises belonging to him.. Defendants in error had contracted with him to construct a building upon said premises, and had ceased work, claimr ing that the building was completed. The time limited for performance under the contract had expired some five months before.

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

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

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

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

<p>Bounty: Resolutions construed, The resolutions of the common council of Detroit,, of October 1st, 1S64, providing for the payment of three hundred dollars bounty to each person who, since September 21st, 1864, had been, or thereafter should be enlisted and credited to any ward in the city, were not intended for the benefit of the wards of the city, hut of the individual enlisting, and this bounty is in addition to the amount of ward bounty any ward had undertaken, to pay; a contract with any ward, therefore, to fill its quota, would give the contractor no title to tbe city bounty provided by such resolution to be paid to one who had enlisted and been credited to such ward.</p> <p>Evidence: Contract. Evidence on cross-examination of the plaintiff, that he did not know that defendant had obligated himself to fill the ward, and that defendant did not tell plaintiff so, but that defendant had made such a statement in the newspapers in his own defense, is not sufficient proof, standing alone, of the existence of such a contract, to authorize the defendant to rely upon it as a defense.</p> <p>Resolutions construed: Bounty: Furnishing enlisted men. The resolutions aforesaid, when considered together and in the light of the existing legislation (which is referred to in the preamble) and of the surrounding circumstances, cannot be held to have intended to provide the bounty for the benefit of those only who should furnish persons to enlist, so as to preclude the enlisted man from claiming it where he had enlisted of his own free will and had not been “furnished” by any other person. One enlisting of his own motion and without the solicitation of another, may well be said to have “furnished11 himself, within the meaning of said resolutions.</p> <p>Bounty : Assignment: Evidence. The assignment of the certificate of enlistment and the bounty to be paid thereon, in this case, was held not to be conclusive between the parties, but to be open to explanation by oral evidence like a mere receipt.</p> <p>Charge to the jury. No evidence having been given tending to show any defense to the plaintiff’s claim, the jury should have been instructed that if they ' believed the plaintiff’s evidence (which was wholly uncontradicted), they should find a verdict in his favor.</p>

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

<p>Equity pleading and practice: Answer: Implied admissions. Where a bill to set aside a deed of property given in exchange for other property in another state, charges that the defendants had no title to the lands given in exchange therefor, and that the deed in question was procured by false and fraudulent representations that they had a perfect title thereto, and waives an answer under oath, and the answer without oath does not deny that defendants had no title, nor allege title, but relies upon the defense that no representations of title were made, and the whole course of the proceedings has been upon the assumption or implied admission of want of title, the decree of the court below in favor of complainants will not be reversed for a failure to introduce evidence of the negative fact of want of title.</p> <p>Burden of proof: Implied admissions. The effect and bearing upon the question of the burden of proof, of omissions and implied admissions in answers in chancery, considered.</p>

This is-an appeal to the.court below, from .the order of •the probate court, allowing the will of Thomas Patterson. The will was proposed by Nancy McGinnis, James McGinnis, Henry McGinnis, John McGinnis, Sarah Wiswell, Mary A. Payne, named as devisees in the will, and Botman Fitzsimmons, named as executor; and was contested by' Mary Kempsey. The case was tried in the court below by jury, who found for the contestant, arid the proponents bring the case here on writ of error.

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

<p>Forgery: Evidence : Collateral issue. On a trial upon the charge of the forgery by raising it in amount, of a mortgage given on a purchase of land, and of uttering the same as genuine, evidence that the prisoner produced in a chancery cause relating to this mortgage, a quit-claim deed, which he had proposed to give on the sale of the lands but which had been rejected by the purchaser and one with covenants substituted for it, and testified relative to a pen used to write it, and endeavored to account on a comparison of the deed with the mortgage for some suspicious appearances in the writing as to the consideration and sum to be paid by the mortgage, is not so far foreign to the issue at bar as to preclude the prosecution, who have put it in, from showing that, instead of the facts being as the prisoner had explained, the draft of the quitclaim deed had been altered also, as to the consideration, so as to make it correspond with the altered mortgage; such evidence of the falsity of the explanation is both pertinent and material.</p> <p>In such a case it is also competent for the prosecution to show that the sum mentioned as consideration in the mortgage in question, as well as that expressed in the condition, had been altered.</p> <p>Value: Evidence: Offers: Rear say. On the subject of value of land, it is not competent to show generally what a neighbor was offered for adjoining lands; such evidence would be mere hearsay.</p> <p>Forgery: Uttering. The putting of a forged mortgage on record is a sufficient uttering. Collecting money upon it and endorsing the payments is also a sufficient uttering, whether the instrument itself was produced at the time of payment or not.</p> <p>Exceptions: Practice in supreme court. Exceptions to the charges to the jury on the weight to be allowed to the prisoner’s statement on the trial, will not be considered on a record which does not show that the prisoner made any statement.</p>

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

<p>Novation: Abandonment: New arrangement: Promissory note: Consideration. Where, by an arrangement between three, the debt of one to another has been transferred to the third, it is competent for them to make a new arrangement to transfer the debt back to the original debtor; and this may be done as well by an actual and understood abandonment of the first novation -as by an explicit second novation; and a note thereafter given by the original debtor on account of such debt, cannot be said to have been without consideration.</p> <p>Practice in supreme court. On writ of error to review upon exceptions to the' finding, a judgment based on a finding of facts and conclusion of law on a trial by the court without a jury, the weight or sufficiency of the evidence will not be considered; the only inquiry is whether there was any evidence tending to» prove the facts found.</p> <p>Evidence: Consideration. The evidence in this case tended to prove a consideration for the note sued upon, and to support the facts found. — Campbell, J., dissenting.</p>

<p>Staying proceedings in another court. Proceedings in one court should not be stayed on account of a suit pending in another, unless they are identical.</p> <p>Personal action: Proceeding in rem in admiralty. A personal action at law in a state court will not be stayed on account of a proceeding in rem in admiralty.</p> <p>Common-law remedy: Estoppel. The right to have a common-law liability enforced by common-law proceedings is one of which a person cannot lawfully be deprived, unless where he has done something which raises an equity by way of estoppel.</p> <p>Practice: Several suits for same cause of action. Cases cited and questions discussed as to the practice where more than one suit is pending covering the same grounds in whole” or in part.</p>

<p>Certiorari to Highway Commissioners, etc.</p>

<p>Foreclosure: Defence: Fraud: Evidence. In this case, which was a bill to foreclose as a mortgage, a deed and bond claimed to have been given by way of security for an indebtedness, and to which the defense was set up that the deed was obtained by fraud, and that the bond produced was a different one from that which the parties actually executed, it was held that the evidence did not sustain this defense.</p> <p>Deed: Delivery: Escrow: Presumption. A delivery of a deed to a third person for the benefit of the grantee, in the absence of any thing conveying a different intent, is as much a delivery as if made to the grantee himself; and when papers show upon their face that they are intended to take effect and operate from their execution, it will not be presumed that their delivery to a third person to be afterwards delivered to the parties, was merely as an escrow,-and that they were not to take effect until such subsequent delivery.</p> <p>Agreement construed: Delivery. An agreement that a deed given as security, and a bond intended to show the purpose of the deed and the nature of the transaction, should be left with a third person until a time specified, and then to be delivered to the parties, unless within the time they were called for by both parties together, can not be said to he unconscionable if construed according to its purpose and intent; and such an agreement shows at least that no control of the papers or right to recall them was retained by the grantors,</p> <p>A provision in such a bond that in case of payment of the indebtedness secured by the deed, the grantee named in the deed was to deed the property back, is inconsistent with an intent that the deed was to have no effect until after such subsequent delivery.</p> <p>Dona fide purchaser: Notice. A purchaser who has notice that another has claims upon the property, and that certain unrecorded papers relating thereto have been executed, but who, without seeing those papers, or inquiring into the nature of such claims, sees fit to buy upon the assumption that they relate only to a mortgage of record in favor of the same person, is not entitled to be protected as a bona fide purchaser, against such claims.</p>

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

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

<p>Mortgages payable in instalments. Where several distinct payments are secured hy one mortgage, no one of them has any preference oyer the rest in consequence of its falling due sooner, hut all have equal claims to he paid ratahly out of the land.</p> <p>Mortgages payable in instalments: Foreclosure by advertisement. Under our statute {Comp. L., § 6918), a mortgage payable in instalments stands upon the same basis as to foreclosure, as if each instalment were secured by a separate and independent mortgage, neither having priority over any others; and a foreclosure under the power of sale, for an instalment simply, is entirely unsuited to the enforcement of the respective liens, or the adjustment of the respective interests.</p> <p>Foreclosure by advertisement for an instalment. Such a sale, expressly made subject to the subsequent instalments, will leave such instalments a lien on the land as against both the mortgagor and the purchaser at the sale. Such a sale, not made subject to the subsequent instalments, will bar only the equity of redemption of the mortgagor and subsequent purchasers and incumbrancers, and will not cut off the other instalments; and a subsequent foreclosure for another instalment would do nothing towards an adjustment of the respective interests of the parties; if each hid off the whole land, neither would become owner of any particular part thereof, or of any definite undivided interest therein, hut each would still have a lien, which, though foreclosed as to those holding subordinate rights, would remain, as to the other, a mere lien,* neither could redeem from the other, and neither would gain or lose precedence or position hy the foreclosure sale.</p> <p>Practice in supreme court; Costs. In this case, the decree below having been modified on appeal* each party being held to have been in error from the beginning, no costs were awarded to either party.</p>

<p>Practice in supreme court. It is incumbent upon a plaintiff in error, in order to reverse tbe judgment against Mm below, to show both that the rulings complained of are erroneous, and that he was prejudiced thereby.</p> <p>Prover: Peed: Reservation: Logs: Removal. One who bases his right to recover in trover for a quantity of logs, upon an exception and reservation to himself in his conveyance of the land on which the logs were cut, of an undivided one-half of the pine timber with the right to enter and take it away before 1868, cannot recover without proof that the logs were taken away by him before the time limited. ■ ■</p> <p>Practice in supreme court: Errors that do not prejudice. And wherein such a case there was no such proof, and the ruling and charge of the circuit judge was equivalent to a direction to find for the defendant upon other grounds, the judgment of tbe court below will not be reversed on error at the instance of the plaintiff, whether the rulings complained of were correct or not; for, on the-whole case it appears that he was not entitled to a verdict in any event, and therefore the rulings to which he excepted did not prejudice him.</p>

<p>Evidence: Attorney's minutes. The minutes of an attorney in a cause, taken on the trial, when properly identified and their correctness proved, may be read in evidence to show, for the purpose of impeaching certain witnesses on a second trial, what they had testified to on a former trial.</p> <p>Sunday: Taking prisoner to jail: Hiring horse: Contract. Taking a prisoner to jail on Sunday, under legal process, is a work of necessity; and hiring a horse for that purpose is not an illegal contract under the statute.</p> <p>Trover: Hired Horse: Driving in excess of the contract. One who hires ahorse for a specified journey, and drives it beyond what his contract contemplated, takes upon himself all the consequences of such additional driving, and if the horse dies while being so driven, he is liable in trover for its value.</p>

The work for which the lien was sought to be enforced in this case, was dredging out a slip for a wharf or dock, and throwing the excavated dirt within the line of the proposed wharf, and scraping the same back and leveling it off.

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

<p>Assault and battery: Declaration: Damages. A permanent bodily infirmity, caused or aggravated by an assault and battery, is properly provable under a declaration averring sickness and pain to have been caused by the assault, and needs no other or fuller averment. It can not be regarded as foreign to those averments.</p> <p>Evidence: Statements of present feelings and sufferings.' Statements of a suffering person concerning present feelings and sufferings, and not relations of past sufferings, are admissible in evidence. Such physical conditions as are not open to the sight or senses of others, cannot well be proved in any other way.— Hyatt v. Adams, 16 Hich.y 200, referred to and followed.</p> <p>Evidence: Cross-examination: Discretion. Where a physician, called by the plain" tiff for the single purpose of describing his wound, which he had dressed, and who had been busy on the part of the defense, had been allowed, on cross-examination, to give full testimony concerning tbe physical and mental condition of plaintiff during his illness, was asked further, on cross-examination, the question: “What appeared to be the condition of his mind as to clearness and sprightliness during the time you attended him?” it was held its rejection was not an abuse of discretion.</p> <p>Evidence: Subsequent desire to settle: Malice: Matter ex post facto. Proof of a subsequent desire to settle is not relevant upon tbe question of original- liability, and does not disprove malice at the time of the assault.</p> <p>Assault: Damages: Injured feelings: Mental anxiety: Provocation: Aggravated damages. A ruling that plaintiff could recover no damages-for injured feelings or mental anxiety, if the assault was made on provocation, is not one which defendant could object to.</p> <p>Charge to the jury: Justification: Error that does not prejudice. Where there was no evidence tending in any way to prove justification, it was improper to give any charge on the subject; but this was not an error against defendant.</p> <p>Contradictory witnesses: Charge to the jury. When witnesses are contradictory, it is proper to caution the jury concerning the care to be used in considering tbe testimony.</p>

<p>Justice of the peace: Judgment: Jurisdiction: Statute construed,: Sunday. Under our statute {Com/p. L. 1871, § 5880) a judgment of a justice of the peace, in a cause tried by him without a jury, rendered and entered in his docket on the fifth day after the trial, is void, even though the fourth day be Sunday; and is not the subject of a general appeal. — Campbell, J., dissenting.</p> <p>'Construction of statutes adopted from those of other states. This statute having been adopted from the statutes of New York, is held to have been so adopted with the construction put upon it by the courts of that state, which is in accordance with the rule above stated.</p> <p>Jteturn construed: Presumption. The return of the. justice to the appeal,, setting forth that the cause was tried by him without a jury on the 12th, and that he rendered judgment on the 17th, it will not be presumed in support of the judgment, in the absence of any thing showing that to be the fact, that the cause was not finally submitted to him until the 13th.</p>

<p>Water craft: Statute construed: Admiralty jurisdiction. Tlie statute (Comp. Z. 1871, ch. 210) providing for the collection of demands against water craft was intended to give a remedy in all cases coming within its provisions in other particulars, where the vessel at the time was navigating the waters of the state, and where no remedy could he had in admiralty, and is not confined to water craft med or intended to be used exclusively in navigating the waters of this state; and the fact that the vessel was upon a voyage from a port outside the state would be of no importance, except as it bore upon the question of admiralty jurisdiction.</p> <p>Boom : Navigable waters: Nuisance : Floatage of logs: Public use of stream. The fact that a boom, in the Manistee river embraced a portion of the navigable waters capable of being navigated by large vessels, does not necessarily constitute it a nuisance which may be abated by force; in any rules laid down for the public use of such a stream, the necessity and convenience of the float-age of logs, and the need of booming facilities to render that floatage of value, must be considered.</p> <p>Boom t Impediment to navigation : Question of fact. Upon the question whether the boom in this case was an unnecessary impediment to navigation, the circuit judge having examined the question elaborately, and reached the conclusion that it was not, and the evidence on which he acted not being returned, and the question being a complicated one, depending upon the particular facts, ‘and the necessities and conveniences of the respective interests, which the circuit jddge was in a position to consider and compare, and which this court is not, his conclusion is adopted as correct.</p> <p>Boom : Riparian rights; Admiralty jurisdiction. The boom in this case being a structure pertaining to the adjacent land, as much as a wharf or building erected thereon, and assuming that it extended no farther out than the land owner, with due regard to navigation, might properly extend .it, a wrongful injury to it would not be a marine injury, and could not be redressed in a court of admiralty.</p>

<p>Practice in circuit courts: Set-off: Costs. Where the only defense set up to* an action of assumpsit is a settlement, and that subsequently defendant did work for plaintiff to the amount of twenty-one dollars, and the court instructs the jury that if they find the settlement sustained they should throw out all matters upon either side that entered into that settlement, and then find a balance one way or the other as to the items of deal after the settlement, and the jury find a verdict for plaintiff for only twenty-five dollars, it cannot be said that the plaintiff is entitled to full costs on the ground that he established a claim of one hundred dollars which was reduced by set off.</p> <p>Sill of exceptions: Testimony: Presumption. It will not be presumed that the bill of exceptions does not contain all the evidence, where the form and wording of it indicates that the whole testimony of each witness is given verbatim and it concludes with the recital that “ the evidence was here closed.”</p>

<p>Statute construed: Careless use of Jire-ai'ms: Malice. A prosecution under “An act to prevent the careless use of fire-arms ” {Comp. L., § 7550), can not be had, and there can be no lawful conviction under it, where the use is not careless, but intended and malicious.</p> <p>In such prosecutions the absence of malice is a statutory requisite, and no statutory ingredient of any offense can be disregarded. If lacking, the offense cannot exist. — Koster v. People, 8 Mich., k81.</p> <p>Statute construed: Felony: Misdemeanor. The statutory provision (Comp. £., § 7919) that no person shall he acffuittea of a misdemeanor because the proofs show a felony, cannot apply to a statutory offense where the misdemeanor couia not he included in any felony, and where the offense proved would he inconsistent with that charged, instead of being an aggravation of it.</p> <p>Practice in criminal cases: Nolle prosequi. Where the whole facts proved went to negative the offense charged, and there was nothing tending to sustain it, the certificate sent down in answer to the exceptions directed a nolle prosequi.</p>

<p>Identity of person: Family name: Initials: Presumption. It will not be assumed as a legal presumption that where the family name and initials are the same, there is identity of person; and therefore Henry V. Libhart is not entitled to recover in an action upon a judgment in favor of H. V. Libhart, without any proof of his identity with the plaintiff in such judgment, and in the absence of any averment in his declaration that he was known by the latter’ name, or that the judgment was rendered in his favor by that name.</p> <p>Fvidence. The fact that the judgment was received in evidence by consent, does not preclude the defendant from raising this point; for proof of the judgment was only one of the steps necessary to make out a case, and should have been followed up by proof of identity of parties.</p>

This suit was brought by Hersey, assignee of Buck, Holiihan & Co., upon the following contract: “ Agreement between Buck, Holiihan & Co. and The Huron Salt & Lumber Manufacturing Company.

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

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

<p>‘Criminal law: Examination: Defense: Evidence. The fact that a prisoner on trial for a criminal offense gave no evidence on his examination before the magistrate, cannot be shown on his trial as evidence of his guilt, or as ground of an inference or presumption against his innocence; otherwise all benefit of the privilege which the statute expressly gives the prisoner of electing to make or not to make defense on his examination, would in effect be taken away from him.</p> <p>Information. The objection to a count in an information charging an attempt to murder by poison, that it does not set forth the special circumstances of the attempt, is untenable.</p> <p>Evidence. Upon the trial for an attempt to murder by poison, evidence of a prior criminal intimacy between the prisoner and the wife of the Bubject of the alleged attempt, and that she was sought to be used by the prisoner as an instrument in the attempt, is competent as showing the relations between them, and as bearing upon the means and opportunity to commit the offense, •as well as the motive. — Feople -u. Jenness, 5 Mich., S2S, cited and approved.</p>

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

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

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

W. Nelson, circuit court commissioner for Manistee county. No question of the commissioner’s jurisdiction was made in the case.

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

This was an action of trover, brought by Laudahn against plaintiffs in error.

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

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

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