Volume 28 — Michigan Reports

Sager sued Harrison in justice’s court. The cause was tried and submitted, and the justice took five days to consider and then rendered judgment for defendant. Sager appealed to the circuit, where defendant moved to dismiss the appeal for the reason that the justice had lost jurisdiction before he rendered judgment, and that therefore the circuit did not obtain jurisdiction through the appeal.

' Suit was brought by Albert against Sutton before a justice of the peace, and judgment rendered in favor of the plaintiff. The defendant took a special appeal to the circuit, alleging as errors: first, a ruling of the justice in excluding certain evidence offered by the defendant; and, second, the overruling of a motion made by defendant to amend his plea.

<p>Deed: Delivery: Time: Acknowledgment: Presumption. In the absence of any showing to the contrary the time of the delivery of a deed will be presumed to haye been the same as the date of its acknowledgment.</p> <p>t.Contract construed: License: Tirnber: Title. A contract in writing executed by the grantee in a warranty deed and dated the day of the acknowledgment of the deed, which, after reciting the purchase of the land, provides, that “all the sawing pine and whitewood timber that is now upon the above described tracts of land belongs to” the grantor named in such deed, “ who is sole owner thereof,” and that he “has by agreement, thirty months from this date to remove the same,” is something more than a revocable license, and operates to secure to such grantor as against his grantee, and all others having notice thereof, the existing ownership of such of the timber as he should take off in thirty months.</p> <p>Deed: Contract: Construction. Such contract and the deed are to be read and construed' together as parts of a single transaction.</p> <p>Contract construed. Such a contract held, in the absence of any showing that any part of the timber referred to had been cut down, not to be limited in its application to severed timber only, but to include the standing timber.</p> <p>Notice : Evidence. There was sufficient evidence of notice of such contract in this case to warrant the submission of the question to the jury.</p> <p>Replevin: Logs: Detention: Charge to the jury. The record showing that the defendants asserted a right of property and of possession adverse to the plaintiff and inconsistent with his claim, and nothing of a contrary tendency appearing, the charge to the jury, that the detention of the logs was not disputed, is held not to be error.</p>

<p>Dower: Partition-: Sales: Parties. A sale under a decree in partition proceedings to which a married woman was not made a party hut her husband was, will not bar her right of dower; such a sale is analogous to a private sale or alienation by the husband alone. — Campbell J., dissenting.</p> <p>Partition-: Parlies: Dower. Under our statute of partition (Comp. L., § 6266-6352) a wife whose husband is seized of an interest in the lands may be made a party, and if she is not, her inchoate right of dower will not be affected. — Campbell J., dissenting. The court of chancery has power in partition proceedings to guard this inchoate right of dower where the wife is made a party, without departing from its principles.</p> <p>Statute construed. Our statute of partition having been adopted in substance from that of New York, it is presumed to have been so adopted with the construction which had been given to it by the courts of that state, which was in accordance with the principle's above stated.</p>

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

<p>Appeal from justice's courts: Amendments: Pleadinqs : Ad damnum: Jurisdiction. The statute (Comp. L., 5458) allowing amendments to the pleadings, or the filing of new pleadings in the circuit upon an appeal from the justice’s court, does not warrant the introduction of a new cause of action, or such a variation in the plaintiff’s claim as would have ousted the justice of jurisdiction, if made in the court below, as by increasing the ad damnum beyond the limit of his jurisdiction.</p> <p>JCstoppel: Stipulation: Objection : Waiver. But a party who has stipulated for such amendments “as either party may desire,” and made no objection to the declaration as amended, but pleaded to the merits, and after verdict against him, for the first time objects, in order to limit the recovery of costs, that it was not an amendment in the appeal case, but the institution of a new suit, is estopped from raising the point.</p> <p>Appeal bond: Sureties ; Principal: Amendments. The -sureties on tlic appeal bond of the party thus waiving his right to raise this objection, would not be bound by his action, and the point is well taken on their behalf; and the amendment in question operates to discharge them from all liability; for, while their obligation must be understood as contemplating such amendments as the court has power to make irrespective of the stipulations of the parties, it cannot be understood aB making them responsible for such acts of their principal as are not contemplated by the statute, and as could only bind him personally on the principle of estoppel.</p> <p>Statute construed: Costs. The statute (Comp. L., § 7888), providing that in certain actions the plaintiff shall recover no more costs than damages, does not apply to a case tried on appeal; but the costs in such a case are governed by another statute (Com%>. L., § 5669), authorizing the court to award them to either party, as it may deem just and right in view of the particular circumstances of each case.</p> <p>Memedy: Emr: Certiorari: Appeal bond: PHncipal: Sureties. Error, and not certiorari, is the proper remedy to review a joint judgment against a principal and his sureties upon a bond on an appeal of the cause from a justice’s court.</p>

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

<p>Equity jurisprudence: Quieting titles: Possession. The case set out in the bill,, being based on a claim for relief on the ground that the complainant has a complete equity, and that the defendants have set up claims that are subordinate to it and in fraud of it, is one of original equity cognizance, and not one in any way derived from the statute for quieting titles; and the fact that the complainant is out of possession is not important.</p> <p>Resulting trusts. Resulting trusts, even before the statute abolishing them, were not in harmony with our land system; and are not to be extended beyond the line of authority.</p> <p>Intention: Payment. To maintain a resulting trust there must have been an intention to create it; and the proofs should show, beyond any doubt, the actual payment of the consideration by the person seeking to raise the trust, and in his own individual money.</p> <p>Payment: Presumption: Donation: Advancement. Proof of such payment will not alone raise a presumption of such an’intention, where the title is taken in the name of a wife or child, or of one to whom the person paying the purchase money stands in' loco parentis; the presumption in such case being rather that the payment is intended as a donation or advancement.</p> <p>Evidence. The evidence in this case fails to prove an intention on the part of either of the parties to create a resalting trasfc; and does not satisfactorily prove even the payment.</p> <p>Equity jurisprudence. A foreclosure purchaser, under a mortgage given by one who has no title to the lands described, is not entitled to relief against a third person, on the ground that the latter has fraudulently obtained the title to tho land of the actual owner, notwithstanding such owner may have intended, without consideration, to put the title where it would have enured to the benefit of such purchaser, hut was deceived into giving it to such third person.</p>

<p>Certiorari; Want of evidence : Presumption; Return. Where an affidavit for certiorari to review proceedings before a circuit court commissioner to dissolve an attachment, assigns as an error the entire absence of evidence to sustain the ground of attachment set forth, of an intent to dispose of property to defraud creditors, it will not be presumed that there was other evidence than that returned by the commissioner, and if there was in fact other evidence, the proper recourse for the defendant in certiorari is to apply for a further return.</p>

Information in. the nature of quo warranto. In this case, when it was called on for hearing, it was discovered that by a mutual misapprehension of counsel it was not in condition to be heard without first raising and disposing of an issue of fact. Some controversy having-arisen upon tbe formalities of tbe pleadings, the court gave the necessary instructions for forming the issues. The office in dispute was that of supervisor of the township of Rogers, in Presque Isle county.

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

Case made from Barry Circuit. This was an action of replevin, brought by Walrath against Campbell, for one reed organ, certain carpeting, chairs, stoye and pipe, one stand, and one bureau, which the plaintiff had purchased upon a sale made on an execution issued upon a judgment in his favor, against the trustees of First Orthodox Congregational Society, of Middle-ville, Barry county, Michigan. The case was tried before the court without a jury.

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

<p> Equity pleadinq and practice: Gifts to charity: Parties: State interference. </p> <p>The state is not authorized, through its law officer, to bring a suit in equity, adverse to all private parties and interests, to enforce a gift by will to charitable uses, unless the gift be definitely to a charity such as equity recognizes, and definitely to a public charity.</p> <p>The state, no less than other prosecutors, must appear on the face of the record to be entitled to prosecute, or the proceeding must fail in consequence of the irrelation of the plaintiff to the subject of the action.</p> <p>Will construed: Charitable uses: Public interest The will in question in this case directs the setting apart of ten thousand dollars to be expended according to the directions of the executors, “for the establishment of a school at Montrose for the education of children;” and this is held to be so uncertain and indefinite as not to bind the trustees to an application of the fund to public charity, or even, perhaps, to chaiity at all, as recognized in courts of equity, but to clothe them with a discretion broad enough to permit of their applying the fund to a private school, and perhaps even to one not within the class of charities; and therefore no case is presented for state interference.</p> <p>Costs. The taxable costs of both courts in this case are awarded to the defendants, against the state.</p>

<p>Mortgages: Estoppel. A mortgagee of lands, who had persuaded a son of the mortgagor, after the death of the latter, and when the land was of little value, and the son contemplated removal to another region, to remain on the farm and tafee care of it and support the family of his deceased father, upon-a promise that the mortgages should never be enforced against the family, is held estopped thereby, after the lapse of several years, during which such son had cultivated said farm and cared for the family, and the land had grown valuable under his tillage, from taking any steps to foreclose the mortgages.</p>

<p>Infancy : Minor's deed • Disaffirmance : Delay: Statute of limitations. The mere delay or neglect, after majority, of one who, when a minor, has executed a deed of lands,< to make an actual disaffirmance of the deed by entry or conveyance, in the absence of any circumstances of equitable estoppel, will not operate as an affirmance or confirmation of the deed until the time limited by the statute of limitations for bringing an action has elapsed: the question in such case is merely one of the time within which an action may be brought.</p> <p>Evidence: Equitable estoppel. In this case - there was no evidence tending to show any circumstances of equitable estoppel, or to change the question from that of mere delay or lapse of time in disaffirming the deed.</p> <p>Jiñnor's deed: Disaffirmance: Subsequent conveyance: Entry. A conveyance after majority to a third person, and an entry by the grantee under such conveyance, clearly operate as a disaffirmance of the minor’s deed. Equity pleading and practice: Condition of relief. Whether a complainant who holds under such subsequent conveyance, in filing a bill to quiet his title against one who holds under the minor’s deed, should be required as a condition of such relief to refund the consideration paid by the purchaser from the minor for such deed: — Quaere?</p> <p>But in this case the complainant making no objection to the allowance to defendant of the amount of such consideration, and by implication, at least, admitting the justice of such an allowance, it is made a condition to the granting of the relief sought.</p>

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

This was an action upon a policy of insurance against loss by fire, covering a dwelling house and barn and their .contents, brought by Mrs. Horton against the company. She obtained judgment, and the defendant brings error.

<p>Riparian rights: Boundary lines: Thread of the stream. The boundary lines of . water lots fronting upon a river in such a manner that their side lines strike the shore at right angles with the middle thread of the stream, but at a different angle with the shore at that point, extend into the river at right angles with the thread of the stream, without reference to the shape of the shore.— Clark v. Campau, 19 Mich., 828 cited and held decisive of the question.</p> <p>There is no distinction in this regard between streams which are subject to easements of passage and those which are not.</p> <p>Riparian rights: Docking line. The fact that the city authorities, under the charter, have fixed a docking line which is not parallel either with the thread of the stream or with the shore, can have no bearing upon the determination of boundaries.</p> <p>Riparian rights: Open sea: Rivers. Controversies arising concerning riparian rights upon waters having no middle thread properly so-called, like the open sea, or a bay or other similar body of water, when the shore is the only tangible element of computation or measurement, can have no bearing on the case of rivers.</p>

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

<p>Replevin: False representations: Prior incumbrance: Burden of proof: Evidence. Where one who has traded, a pair of colts for a mortgage and a small sum of money, tenders back the mortgage and money, and brings replevin for the colts, claiming that the defendant falsely represented the mortgage to be a first mortgage, and good, it is 'incumbent upon him to show that there was a prior incumbrance on the lands such as to affect the title and impair his security; and the mere proof of a prior mortgage executed by a different person, which had been foreclosed, and a sheriff’s deed executed, in the absence of any showing that such prior mortgagor ever owned the land, or had any connection with the title, is not sufficient; nor did this make out a prima fade case on the point, so as to shift the burden of proof upon the defendant to show that it did not affect the title.</p> <p>False representations: Value; Caveat emjrtor. The representations made as to the mortgage at the time of the trade, so far as they related to its value, are held to be mere expressions of opinion or matter of commendation by the vendor, to which the principle of caveat emptor applies.</p> <p>False representations: Prior mortgage: Fraud. It seems that if the defendant, for the purpose of obtaining the plaintiff’s property for the mortgage, asserted to him, as a fact of which he professed to have knowledge, that there was no prior mortgage upon the land, when he knew or had good reason to believe the contrary, or no good reason to believe Ms assertion to be true, he would be liable as for a fraudulent representation, and the plaintiff might have rescinded the contract and reclaimed his property; and this, without reforenco to the personal responsibility of the mortgagor, or the value of the land.</p> <p>But a representation in reference to a prior mortgage, “that there was none so far as he knew,” is not a distinct representation of the fact one way or the other; and the whole import of it is, that he did not know whether there was a prior mortgage or not, and this was enough to fairly put the plaintiff on inquiry to ascertain the fact for himself.</p> <p>Whether or not, in case of such a representation, the defendant could be held liable, under clear and distinct proof that he in fact did know there was a prior mortgage, he certainly cannot upon proof simply that some one had told defendant he had heard there was a prior mortgage.</p>

<p>Order; Acceptance. The mere writing of the drawee’s name across the face of an order is a sufficient acceptance; and the fact that the words: “Paid on thja order forty dollars” were written across the face of the bill above the signature of the drawee, does not qualify the acceptance or limit it to that sum.</p> <p>Practice in supreme court. On error to review the judgment of the court below holding such an endorsement not an acceptance, except as to the sum of forty dollars paid thereon, where the record fairly imports that the defense was planted on the legal effect of this indorsement, the judgment will not be sustained on the suggestion that the plaintiff gave no evidence that defendants composed the firm named as drawees, or that the endorsement was made by thorn, and that it does not appear that the paper sued upon was filed with the justice before whom the suit was brought; the defendants had a right to waive ail formal proofs, as they seem to have done in this case, if they saw fit so to do.</p>

<p>Garnishee proceedings. Tlie right to hold a garnishee defendant liable depends upon the state of the claim, as one garnishable or not, at the time of the service of the writ of garnishment.</p> <p>Insurance: Garnishment: Might of election: Liability: Statute construed. Under a policy of insurance giving the insurer the right to elect whether to replace the articles lost or damaged, or to take the goods at their appraised value, or to rebuild or repair the building, etc., the insurance company, after loes and while this right of election continued undetermined, is not liable as garnishee of the insured; their liability to pay money to the insured cannot be said to have become absolute and independent of any contingency, as required by the statute, (Comp. L. § 6503, Sub. 3), so long as this right of election remained open.</p>

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

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

<p>Deed: Record: Subscribing witness: Affixing a mark. An objection to the record of a deed that one of the subscribing witnesses has signed by affixing his mark, and that this is not a compliance with the statute regulating the execution of deeds, is not tenable; this objection is well answered by the general statute of construction (Gomp.L,, § 2, Sub. 17), providing that, “in all cases where the written signature of any person is required by law, it shall always be the proper handwriting of such person; or, in case he is unable to write, his proper mark.”</p> <p>Acknowledgment: Certificate. A certificate of acknowledgment which, after naming the grantor, reads, “ to me known to he the same person,” etc., is not open to the objection that it fails to show that the grantor was personally known to the officer.</p> <p>Justice of the peace: Acknowledgment. A justice of the peace of one county has no authority to take an acknowledgment in another county.</p> <p>Deed: Acknowledgment: Statute construed, Where the original deed is produced in evidence and it is a good common-law conveyance, it will operate to prove a transfer of the title as between the parties, and as against all others rightly chargeable with notice, even though the acknowledgment be lacking; the general statute'regulating alienation by deed (Comp. L., ch. 150), clearly implies that the acknowledgment is not one of the constituent parts of the conveyance itself.</p> <p>Record: Defective deed : Notice. The record of a deed with a defective acknowledgment is not evidence of the original instrument, hut under the curative act of 1861 (Sess. L., 1861, p. 1G) snch record operates as a notice of the rights secured by the deed, where the instrument was made in good faith and on valuable consideration, and intended to operate as a conveyance.</p> <p>Repeals by implication. This act of 1861 was not repealed by the act of 1S6T (Sess. L., 1867, p. 189) adding new sections to the general chapter on alienation by deed. Repeals by implication are not favored.</p>

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

<p>Application for mandamus.</p>

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

<p>Informations: Uttering a forged instrument: Specifying the forgery. While, according to the precedents and authorities, it is not absolutely necessary in an information for uttering and publishing as true a forged instrument, etc., to set out particularly in what the forgery consisted, yet it is usual to do go in at least one count, and as an instrument may be forged in a great variety of ways, fairness to the accused would seem to require it, and the practice of omitting such statement is not to be commended.</p> <p>Informations: Variance. But where the prosecutor undertakes to set out in what the forgery consisted, he is bound to state it truly, so as not to mislead, the defendant, and to prove it as stated.</p> <p>Informations: Tittering forged instrument: Allegation of specific forgery : Variance. Th.e information in this case was for uttering, etc. a forged letter of attorney, which is described as purporting to be executed by certain persons named, and to be acknowledged before one Castello, a notary public, etc., and to have his signature attested by certificate of one Smith, clerk of the district court, etc., and it sets forth specifically that the signatures of Castello and Smith were false, forged and counterfeited, but does not allege that the other signatures were forged; and it is held that these allegations must be considered as so far descriptive of the instrument that the prosecutor was bound to prove the forgery of at least one, if not both, of the names alleged to he forged; and a conviction had in the absence of such proof, and upon evidence . only of the forgery of the other signatures, is set aside.</p>

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

<p>Associations: Members: Expulsion: Charges; Misconduct. Under articles of association providing for expelling members guilty of improper conduct calculated to bring tbe society into disrepute, it cannot be said that charges: -first, of receiving of an applicant for admission his proposed initiation fee and failing to pay it over to the society or to return it to the applicant, who had complained thereof to various persons; and, second, of having been entrusted by the secretary with the keys of the society chest to obtain a receipt book therefrom, and of having, at the same time, and without leave, taken from such chest the original roll of the society, and refused to return it, are insufficient.</p> <p>Such proceedings, under articles of association agreed to by all the members, are to be considered without too much regard to any technicalities, and substantial justice is to be kept in view rather than mere form.</p> <p>Articles of association: Committee: Appointment: Presiding officer. Under articles providing for the appointment of a committee of investigation by the presiding officer, without directing how or when, an appointment immediately after the adjournment of the meeting which passed the resolution of reference, by the second vice president, who had presided at that meeting, and a subsequent appointment by tbe first vice president to the places of two who had declined to act, are held under the circumstances of this case not open to objection as to the Bource or time of the appointments.</p> <p> Proceedings to expel: Regularity: Presumption: Routine questions: Review. </p> <p>The relator having been before a committee claiming to be regular, and not shown to he otherwise, should have made his formal objections there; and it will be presumed that if the proceedings before the committee were not according to the usages of the society, they would not have been sanctioned by the society; and at any rate this court is no place to review such routine questions.</p>

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

The relators applied by petition under the act establishing the superior court of Detroit (Sess. L. 1878, Vol. 1, p. 67, § 21), for the removal of a cause pending in the Wayne circuit court, wherein they were plaintiffs, and Archibald Muir, William Livingstone, Jr., Abijab W. Smith, and Alexander Stewart were defendants, from said circuit court to said superior court.

The relators were convicted, in the Calhoun circuit, of arson, and sentenced. They thereupon sued out a writ of error to bring said cause up for review, and tendered to the respondent a bill of exceptions for settlement, and the latter declined to incorporate into the bill certain proceedings and motions in the cause, on the ground that they were no proper or legal part of a bill of exceptions.

Defendant in error brought suit in the name of O. B. Abbott, against plaintiff in error, before a justice of the peace, upon a promissory note made by Fewlass, payable to O. B. Abbott or bearer. Objection was taken by the defendant that the plaintiff was not named, or properly named, in the process and proceedings, but was overruled, and judgment rendered for plaintiff.

<p>Railroads: Corporations: Organization: Irregularities. A subscriber to the capital stock of a railroad company cannot set up in defense to an action upon his subscription, any mere irregularity in the organization of the company, provided it he a corporation de facto, proceeding without interference of the state authorities in the construction and completion and maintaiuance of its road.</p> <p>Railroads: Organization: Subscription: Irregularities: Corporation defacto: Affidavit, It is no defense to such an action by such a corporation, that the affidavit of amount subscribed, etc., annexed to the articles of association filed in the office of the secretary of state, was made by three only of the nine directors, in accordance with the original statute (Sees. L. 1855, p. 158), instead of by at least one-half the directors, as required by the amended statute (Sess. L. 1867, p. 90), where, as soon as this defect was discovered, a second affidavit of five of the directors, in proper form, was attached to the articles, stating that the former affidavit was made by too small a number through inadvertence.— Swartwout v. Mich. Air Line R. R. Co., 24 Mich., 389, cited and held decisive of the question.</p> <p>Subscription to stock: Defense: Amount: Implied condition. A subscriber for stock, when sued on his subscription, may show in defense the failure of the corporation to obtain the requisite amount of capital stock; for his subscription is upon the implied condition that the aggregate amount required by the statute shall be subscribed.</p> <p>Evidence: Subscription booJcs: Official registers. The subscription books opened and kept by the commissioners are in the nature of official registers, and are competent evidence to prove how much per mile had been subscribed to the capital stock.</p> <p>Statute construed: Extra territorial operation: Consolidation: Subscription to stock: Amount. In case of the consolidation of a Michigan company with an Indiana company, the objection is not- open to a subscriber to the former company when sued upon his subscription by the consolidated company, that it is not alleged or proved that the statutory amount per mile had been subscribed for the entire road, as well that in Indiana as that in Michigan, where it clearly appears that the requisite amount per mile of the road in Michigan had been subscribed; this requirement of our statute has exclusive reference to corporations created here for the construction of roads within onr own borders, and was not intended to have any extraterritorial operation.</p> <p>Assignments of error: Practice. Objections to the regularity of the calls for assessments which have no assignments of error to rest upon are not considered.</p>

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

<p>Evidence; Draft; Acceptance: Signature. In an action upon an accepted draft ill a justice’s court, it is error to admit in evidence the draft declared upon, against objection, without proof of the signature, where the paper has not been filed with the justice as required by the statute (Comp. L. § 5310).</p> <p>Deturn construed: Allegation: Proofs. The only reference in the record to the filing of the draft with tbe justice being incorporated in what is given in the return of the justice as the declaration in the cause, the statement of the fact there is construed as being an allegation merely in the declaration, which is of no force as proof of the fact; and in the absence of any verification of this allegation by the return, or of any evidence upon the subject, the record fails to show that the draft was in fact filed with the justice.</p> <p>Evidence: Consideration. In such an action it is competent for the defendant to show that at the time the draft was drawn he was not indebted to the drawer, as it tends to show want of consideration, and that the acceptance was a mero accommodation acceptance.</p>

<p>Masonic societies: Chapters : Corporations: Merger. A masonic lodge which, was in existence before the organization funder the statute (Comp.L., ch. 118)y of a corporation of the same name, and which had never by any action authorized or recognized the corporation as formed in the same behalf, and where each had been distinct in meetings, officers, property and other incidents,, and not even identical in membership, is held not merged in the corporation.</p> <p>Membership : Identity. An absolute identity of membership would not of itself lead to such merger.</p> <p>Corporations: Legislative power: Corporators : Merger. The legislature has no authority, and the statute in question does not attempt it, to compel any person or society to become incorporated without its assent. Nor can any one become a member of any private corporation without taking some steps; for that purpose, or any existing association become absorbed or merged in any new corporation, so* as to relinquish its former condition, without some action fully authorizing such a result.</p> <p>Corporations: Membership: Associations: Assent: Merger. The membership of a corporation cannot be increased by joint accessions without some action denoting unanimous consent; and one member of an unincorporated association cannot be made a corporator in a different association or corporation by the action of other members not within the terms of their original compact; and a portion of the members of a masonic chapter therefore cannot, without unanimous consent, or some action of the chapter, or provision of their articles, authorizing it, organize a corporation under the statute which shall swallow up the chapter and thereby acquire title to its property.</p> <p>Cm'povaiion: Merger: Acquiescence: Estoppel: Ratification. Nor could acquiescence in the claims of the corporation that it was identical with the chapter, in the absence of any circumstances creating an estoppel, operate to extinguish the separate existence of the latter: and nothing short of a complete cessation of its action would tend to prove acquiescence in a corporate merger, and any acquiescence by the chapter or its officers would not bind the members except to the same extent as their actual agreement for the same purpose, would bind them. An act cannot be ratified by those who could not authorize it.</p> <p>Parties: Death of plaintiffs: Action surviving. Where the cause of action survives, the exclusion of evidence on the trial, that some of the plaintiffs have died since the suit was brought, is not error: this is not a question that can enter into the merits of the trial or interfere with its progress where it does not abate the suit or change the issues.</p>

<p>Ejectment: Adverse possession: Assessing taxes: Evidence. In an action of ejectment, where the defense is long continued adverse possession, the fact that the land was assessed to plaintiffs’ ancestor, from whom they derived title, at a time when he had been dead for more than thirty years and when defendant's ancestor was paying the taxes, can have no bearing upon the character of the possession, in the absence of any showing that the person in possession had any thing to do with having it so assessed.</p> <p>Special questions to jury : Statute construed. The questions to be separately submitted to the jury under the statute (Comp. L. 1871, § 6026), are required to be “particular questions of fact” and such as involve legal consequences and have some controlling force in reaching a conclusion; and a question so general as the inquiry, “By what acts did Joseph Campau claim to hold possession adversely to the plaintiff?” may well be declined.</p> <p>Tenants in common: Adverse possession; Presumptions. Whether a ruling that occupation by one tenant in common, giving leases and receiving rents, for more than twenty years, with the knowledge of his co-tenant, without actual acknowledgment of the latter’s rights, and without any claim by such co-tenant for a share of the rents and profits, will bar a recovery in ejectment by tbe latter, is erroneous: — Quaere?—Campbell, J., with whom Graves, J. concurs, holding that upon such facts the inference or presumption of title is one of law; and Christianct, Ch. J., with whom Coolet J. concurs, holding it to he one of fact for the jury.</p> <p>Adverse possession: Evidence: Inferences : Errors that do not prejudice. But in this case, where such occupation was clearly shown, and there was no evidence tending to show that the possession was other than adverse, the jury would not have been warranted in drawing any other conclusion than that it was adverse; and the ruling in question did not prejudice the plaintiff in error, since under any charge the court could have given on the legal questions, the verdict should have been the same.</p>

<p>Evidence: Statements: Counterfeit money: Identity: Genuineness. Tbe statements of persons not witnesses, through whose hands a treasury note has passed, are not admissible in evidence, either for purposes of identification, or to prove the note counterfeit, in a suit brought by one who has taken such note, to recover its value.</p> <p>Evidence. Tbe production of a genuine bill by the defendant on a former trial before a justice of the peace, but not as a witness, in the absence of any showing of admissions or statements in regard to it, was immaterial, and evidence of it should uot have been admitted.</p> <p>Evidence : Statements not denied. The statement of a fact by one of the parties, in the presence of the other, and not denied, is admissible as evidence of the fact so stated.</p> <p>Admissions. Where counsel, to avoid the necessity of having a witness called, admit what he would testify to, they will not be permitted to rely on refined distinctions which could have been obviated by a fuller examination.</p> <p>Evidence: Experts: Bankers: Counterfeit money. Bankers are competent to testify as to the genuineness of a treasury note.</p> <p>Counterfeit money: Diligence : Delay ; Fraud. The taker of counterfeit coin, or paper money which has been made legal tender by law, must use due diligence to ascertain its character and to notify the giver, to entitle him to recover its value.</p> <p>Any unnecessary delay beyond such reasonable time as would enable the taker to inform himself as to its genuineness, operates as a fraud on the giver, and prevents a recovery.</p> <p>Negotiable paper: Genuineness: Coin: Legal tender notes : Payment. Whether the rule that a party passing negotiable paper warrants its genuineness, is applicable to payments made in coin or legal-tender notes: — Quaere?</p>

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

<p>Finding of facts: Special verdict: Practice: Evidence. Tbe finding of facts, in a case tried by the court without a jury, is to be treated asa special verdict; and where no exceptions have been taken to the evidence introduced, the-finding is conclusive, if there is any evidence tending lo sustain it.</p> <p>Evidence; Finding of facts. The evidence considered, and held not to sustain , the finding that the defendants gave the note sued upon as consideration for the sale to them by the plaintiff of a note of like amount ho held against one Haney; but its tendency was rather to show that by the arrangement between the parties, defendants were not to pay their note unless Haney would consent to pay them, or allow them the amount upon a debt they owed him,, without suit or trouble, nor unless the Haney note should turn out to be as good to them as money.</p>

Defendants in error sued plaintiff in error in justice’s court.

<p>Certiorari: Motion to dismiss: Practice. The question whether a case is a proper one for the writ of certiorari is one that relates to the merits, and will not be entertained on a motion to dismiss the writ in advance of the hearing.</p> <p>Certiorari; Discretion. Where a writ of certiorari has been granted by a competent officer, upon a sufficient application, the supreme court will not review his discretion in granting it, on a motion to dismiss.</p> <p>Certiorari: Double application. Whether an application pending and undetermined, to a circuit judge of the county where the proceedings were taken, for a writ of certiorari to review proceedings before a circuit court commissioner on a writ of habeas corpus, would render a like application lo a justice of the supreme court nugatory: — Qucere?</p> <p>But where upon tbe showing it is clear that the commissioner had not in fact rendered his decision when the first application was made, the supremo court will not dismiss its writ.</p> <p>Custody of children: Discretion: Interested parties. In a controversy between parents for the custody of their children, the children are interested as deeply as the parents, and the court will not take any step within its discretion which might prejudice them, even in case of misconduct on the part of the con- ' ■ tending parents.</p> <p>Circuit court commissioners: Judicial powers: Babeas corpus : Custody of children. Circuit court commissioners have no power under our constitution (Art VI., §§ 1, 16) to adjudicate, under the writ of habeas corpus, upon the right to the custody of children; such a power properly pertains to courts, and cannot be conferred upon an officer to be exercised in a summary proceeding out of court.</p> <p>Statute construed: Babeas- corpus: Circuit court commissioners: Chamber powers. Construing together the provisions of the constitution and the statute authorizing commissioners to issue the writ of habeas corpus, it is held that the statute must be understood as excepting from their jurisdiction all cases in which the relief sought is such as cannot, consistently with legal principles, be afforded by an order made by a judge at chambers.</p>

<p>Appeal in Chancery from Van Burén Circuit.</p>

<p>Highways: Return of commissioners: Notice : Proof of service. In proceedings to lay out a highway, the return of the highway commissioners, that they proceeded to lay out the road in question, “after due notice given according to law,” is not sufficient proof of service of the statutory notice; in such proceedings jurisdictional facts must he distinctly shown.</p> <p>Highways: Record: Defect: •Amendment: Affidavit: Notice: Service. Whether or not such a defect in the proceedings could be cured by an affidavit subsequently made, of the facts,‘showing that notice was duly given by one : of the commissioners, and that at the time of acting they had proof of that fact before them: — Queers?</p> <p>Highways : Defective record: Amendments: Affidavit: Proof of service. * But an affidavit of the fact of serving the notice, which does not show that any proof of the service was before them at the time of acting, and from which it appears, inferentially at least, that no proof thereof was made at the time other than the mere oral statement of the commissioner who. made the service, will not euro the defect in the proceedings.</p> <p>Jurisdiction: Notices: Service: Oral statements: Legal evidence. Jurisdiction to lake from a private owner the possession of his lands can never be allowed to rest upon any such dangerous basis as a mere oral statement of the fact of service; and the fact that one of the commissioners had personal knowledge that the notice was given does not help the matter, as his oral • statement could not be taken as proof by the others, nor would it be evidence to other persons interested, who arc entitled to have the facts placed upon record.</p> <p>Statutory notices: Process : Proof of service. The statutory notice in these * proceedings is in the nature of process, and it is indispensable that there be legal evidence that it has been given.</p>

<p>Remedy: Administratm's: Removal: Error. Proceedings before tbe probate coart for the removal of an administrator are not according to tbe course of the common law; and their nature is not altered when the cause is removed by appeal to the circuit court; and a writ of error does not lie to review' them.</p>

The declaration was as follows: “For that, whereas, 'the plaintiff herein was for a long space of time, to wit: from the year 1866 to the year 1869, the general agent for the state of Michigan for the sale of the Knabe piano, and also for the sale of the Steinway-piano, which latter is sometimes called the ‘King,’ and is-also sometimes called the ‘ King of Pianos,’ and had the-sole and exclusive right of sale of both of said pianos for the city of Detroit, in the county and…

This was an action of trover brought by Johnson against Ballou for certain pine saw-logs. The logs in question were cut partly on section one, in town fourteen north, of range three east, and partly on section seventeen, in town fourteen north, of range four east. The questions raised relate to the title to these sections. The cause was tried by á jury, who found a general verdict for the plaintiff, assessing his damages at two thousand two hundred and -sixty-nine dollars.

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

Appeal in Chancery from Wayne Circuit. This was a bill to foreclose a mortgage given by McReynolds and wife on May 26th, 1851, to Van Dyke & Emmons, and afterwards, by mesne assignments, transferred to complainant. The defense was that defendant had transferred to Van Dyke, in his lifetime, a mortgage from Rollin C. Smith to apply in payment of so much of the mortgage in question, and had otherwise paid the residue.

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

<p>Bin in equity construed. The bill in this case is construed to be one for redemption from certain mortgage foreclosures.</p> <p>Proofs: Allegations. A complainant can claim nothing upon the proofs, beyond what his hill of complaint warrants.</p> <p>Mortgages; Bill to redeem: Title. One who shows no subsisting legal or equitable right in the property, nor any lien or charge upon it, cannot maintain a bill to redeem a mortgage.</p> <p>Levy : Execution.; Lien: Title. The mere levy of an execution npon lands to which the judgment debtor never had any title, and in which he never held any leviable interest, does not constitute any lien or charge npon the landB, or invest the execution creditor with any right or title on which to found a suit for the redemption of a mortgage upon the same.</p> <p>Sill to redeem : Immaterial averments. Transactions between the parties with reference to a sale by the defendant to the complainant, of a mortgage interest, cannot have any force as the foundation for a bill to redeem from the mortgage.</p> <p>MU to redeem: Specific performance. This case has not been so constituted, or so proceeded in, as to warrant the consideration of facts tending to prove a verbal agreement by defendant to transfer the mortgage in question to the eomplainant, as facts belonging to a suit to compel specific performance of such agreement.</p>

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

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

Appeal in Chancery from Kalamazoo Circuit. This was a bill to set aside a deed executed by complainant and his wife, one of the defendants, to the other defendant, George W. Mundy, and a deed from Mundy to the wife, on the ground that the complainant was intoxicated when it was executed; that when intoxicated he was of weak mind and much under the influence and control of his wife] that she and the other defendant, taking advantage of this, fraudulently combined to procure…

These were proceedings under the statute to condemn lands for the use of a railroad.

<p>Married women: Personal liability : Separate property: Statute construed: Contracts: Surety for husband. Under our statute (Comp. L., p. 1478) whatever contracts a married woman may lawfully make, may be made “with the like effect as if she were unmarried;” but she has no general capacity to contract, and can only make such contracts as relate to her own property; she cannot become personally liable except on account of her own matters; and cannot enter into an undertaking jointly with her husband merely as his surety; and she can never be held without affirmative proof that the contract is her own, and within her powers.</p> <p>Married women: Statute construed: Separate property: Intent: Consideration. To sustain a contract made by a married woman, it must appear to have been made with the intent to bind her sole property as well as upon a consideration that would sustain it for that purpose.</p> <p>Agreement: Consideration: Wife's promise. Whether or not an agreement to abstain from prosecuting an estate is such an agreement on behalf of the separate property of one married woman out of several heirs as would support her promise to pay the whole: — Qucere?</p> <p>Evidence: Agreement to abstain from prosecuting: Wife's separate estate. But where the only showing of any agreement to abstain from prosecuting the estate, is not of an agreement made with such married woman herself or with any one on her behalf, but consisted simply of assurances to ber husband that unless sbe signed a joint note with him for his debt, proceedings would be taken against the estate of her father, which was claimed to be held as surety for the debt, it fails to make out any agreement on behalf of her separate property.</p> <p>Promissory notes: Liability of married women. The proposition “that any married woman who joins in a promissory note with her husband for the absolute payment of money does by that act in all cases create a charge upon such separate property as she may own, and that the charge thus created may be enforced by a legal action and collected by execution upon the judgment as it could formerly be enforced by decree in equity,” considered, and held to be unsound.</p> <p>Equitable doctrine of charges on wife's separate property: Action at law under the statute. The old doctrine of enforcing in equity the contracts of a married woman as charges upon her equitable interests in property held to her separate use, considered and held to rest upon her disability to bind herself in personam, or to transfer or charge a legal estate by her sole act or agreement, and not to be applicable to cases at law arising under our statutes which have removed the very disabilities on which the doctrine was originally founded; and any attempt to engraft the old rules of equity upon the new system can only lead to confusion and mischief.</p>

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

<p>Practice: Order of proof. An - objection which relates to tbe order of proof merely will not be considered on error.</p> <p>Certificate: Construction: Technical objections. It is the policy of the law to uphold certificates when substance is found, and not to suffer conveyances or the proof of them to be defeated by technical or unsubstantial objections.</p> <p>Certificate: Judicial notice: County clerk: Clerk of supreme court: Court of record. In construing a certificate of authenticity of the proof or aclsnowleclgment of a power of attorney, signed by a county clerk of another state, the court will take judicial cognizance for the purpose of sustaining the certificate, that the clerk of a county of a sister state whoso constitution provides that the county clerk shall be also clerk of the supreme court of the county, is the clork of such supreme court, and also that such court is a court of record.</p> <p>Certificate construed: Acknowledgment. Such a certificate which sets forth that the person “whose name is subscribed to the certificate of the proof or acknowledgment of the annexed instrument and thereon written was at the time of taking such proof or acknowledgment a justice of the peace in and for said county, elected, sworn, and duly authorized to take the same,” and certifies to the genuineness of his signature and also that “the annexed instrument is executed according to the laws of this state,” is not open to the objection that it fails to show that the instrument was acknowledged according to the laws of such state; the fair import of such a certificate is that the identical acknowledgment in question was a due or legal one in that state, and that the justice was authorized to make that yery acknowledgment.</p> <p>Registry : Powers of attorney : Statute construed. An objection to the record of a power of attorney to sell lands, that the law did not authorize such an instrument to be recorded “among” the records of deeds, is construed to mean that the law made no provision for the registry of powers in the books of deeds, and is held to be completely answered by the statute (Comp. L., § 4238).</p> <p>Ejectment: Judgment: Special finding; Statute construed. A judgment in an action of ejectment between a single plaintiff and a single defendant, where the defendant had become defaulted and the cause has been tried before the court without a jury, is not invalidated for the want of a finding specifying the estate or right established on the trial by the plaintiff, as required of a jury in certain cases under the statute (Comp. L., § 6231, sub. 7); such a case is not within that provision of the statute.</p> <p>Ejectment: Special finding : Collateral objection. Whether, in a case to which the statute applied, the want of such a special finding would expose the judgment to any collateral objection by the defendant: — Queere? 1</p> <p>Ejectment: Judgment: Description of premises : Collateral attack : Statute of amendments. A judgment entry in an ejectment suit, that the plaintiff “do recover against the said defendant the possession of the premises aforesaid according to the description thereof contained in the said declaration,” etc., though formally inaccurate in omitting to describe the premises except by reference to the declaration, is not so defective as to render the judgment invalid when attacked collaterally; this imperfection is a mere technical irregularity, and the premises being specifically described in tbe declaration and title in fee claimed, the recovery is made certain by the reference to the declaration; and this miscarriage in the entry of the judgment is obviated by tbe statute of amendments (Comp. L., § 6051).</p> <p>Judgment entry. The point that such a judgment entry does not purport to decide that the plaintiff is entitled to the possession, is not well taken.</p> <p>Finding of facts: Possession : Claim of title. A finding in an ejectment suit, simply that the defendant had lived on the premises twenty-seven years, and at all times had sufficient property thereon out of which the taxes might havo been made, in the absence of any finding of a hostile possession, or of any pretense of title on the part of the defendant, is insufficient to overturn a judgment in the case for the plaintiff.</p>

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

<p>Prohibitory liquor law : Liability of seller, to wife, etc.: Statute sustained. The statute (Session L., 1871, Vol. 1, p. 363) giving a right of action to the wife, child, parent, guardian, husband or other person who shall be injured in per- ' son, property, means of support or otherwise, by any intoxicated person, or .by reason of any intoxication, against any person who, by selling or giving away ahy intoxicating liquor, has caused or contributed to the intoxication, is held to be valid.</p> <p>Intoxicating drinks: Master and servant: Private instmctions. One engaged in the sale of intoxicating drinks is responsible under this statute for the acts of his servants in that business, even though in the particular transaction they disobeyed his instructions, in accordance with the general rules governing the relation of master and servant.</p> <p>Prohibitory liquor law ; Peer : Stealing : Conversion: Receiving pay for stolen liquor. But this principle cannot be applied to the case of a person ' who goes without the permission of any one and drinks another’s beer; and the fact that the owner afterwards demanded and received pay for the property, cannot make such owner a wrong-doer in the original trespass on his rights.</p> <p>Peer: Pi'operty: Conversion: Recovery: Settling. The statute law, as well as the common law, recognizes beer as property, and the brewing of beer as a lawful business, and protects this property as it does any other lawful product; and any one who steals it, or converts it to his own nse, is liable for its value, whatever his motive; and if the owner may recover for it, he may settle for it without thereby sanctioning what was originally done with it.</p> <p>Exemplary damages. Exemplary damages should not be awarded under this statute unless the act of giving or selling the intoxicating drinks was wilful, wanton, reckless or otherwise deserving of punishment beyond what the requirement of mere compensation would impose.</p>

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

<p>Promissory notes: Interest: Alteration. Under our statute (Comp. L., § 1632) fixing the rate of interest at seven per cent., but making it lawful for parties to Btipulate in writing for the payment of any rate not exceeding ten per cent, per annum, the rate of interest in a note can only be changed from seven to ten per cent., if at all, by a stipulation in writing.</p> <p>Promissory notes: Pate of interest: Alteration : Avthoriiy. Whether a verbal statement made by the maker to the holder of a promissory note during negotiations after maturity for an extension of time for payment, directing him to “make the note ten per cent.,” imported an authority to actually alter the note as to the rate of interest: — Qucsre?</p> <p>Such a statement, however, very clearly did not import a continuing authority which would justify and make valid an alteration written out by the holdér fieveral months afterwards.</p> <p>Promissory notes: Alteration : Assent. An alteration in a material part by tbo holder of negotiable paper, in the absence and without the knowledge of the maker, ought not to be sustained as lawful, except upon very clear proof that when actually made it had the assent of the party to be charged.</p>

<p>Corporations: Consolidation: Assessments. A company formed by the consolidation of two or more corporations cannot, under the statute (Comp. L. § 2347)r make valid assessments upon subscriptions to the stock of one of the original corporations, before the consolidation papers are filed in. the office of the secretory of state; the statute is the only source of the corporate existence of the consolidated company, and its conditions are imperative.</p>

<p>Attorneys: Proceedings to disbar: Evidence. Proceedings to disbar an attorney,, while not strictly a criminal prosecution, are of that nature, and the charges preferred should he clearly supported by the evidence to warrant a conviction.</p>

<p>instates of deceased persons: Claims: Question of fact. In an action against administrators for a claim against an estate, where commissioners on claims have been appointed and have reported, and their report, and the records and files of the probate office, have been destroyed by fire, the question whether the claim was allowed and reported by the commissioners is one of fact to be left to the jury; and where there is evidence that in a possible view of it favored the conclusion that the plaintiff’s claim was so allowed and reported, it is error to direct a verdict for defendants without submitting this question to the jury.</p>

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

<p>Chattel mortgages: Mortgagor's interest: Execution: Possession: Replevin. A mortgagee of chattels cannot maintain replevin against an officer who has taken the goods from the possession of the mortgagor before foreclosure, under an execution against him, notwithstanding the mortgage is past due and unpaid, so long as the officer is proceeding in due course under the statute to a sale of the mortgagor’s interest. — Cary v. Hewitt, 26 Mich., 228.</p> <p>Replevin; Stipulation: Special interest: Admissions. A stipulation in such a suit, that if the court should find the defendant was lawfully entitled to the possession by virtue of the levy, judgment should be rendered for the defendant for a specified sum, is an admission of record that is conclusive and supersedes .all inquiry into the value of the defendant’s interest, and precludes the plaintiff from claiming that defendant’s right was one possessing only a nominal value. .</p> <p>Practice: Errors that worh no prejudice. In such a suit, submitted upon agreed facts and under such a stipulation, the omission of the court below to respond to propositions of law submitted for special findings under rule 87, worked no prejudice to the plaintiff, as upon the facts the right of possession was lawfully in defendant, and consequently under the stipulation no other judgment than that agreed upon could he rendered.</p>

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

Mrs.' Cameron applied in the probate court to be appointed guardian of her minor children, and her application being there denied, she appealed to the circuit. The circuit judge dismissed the appeal for want of jurisdiction because of the insufficiency of the bond, and Mrs. Cameron brought the ease to this court on writ of error.

<p>Title: Possession: Intendments: Laches. Where plaintiffs assail a title which has stood undisputed for half a century, and which was founded originally upon a judicial determination, every reasonable intendment will be made in support of the existing possession.</p> <p>t Laches: Possession : Ejectment: Remedy in equity. So long a delay is not wholly accounted for in this c'ase by showing that plaintiffs could not before have brought ejectment because another had a life estate; for relief might have been sought in equity against the partition deed under which defendants claimed, if any substantial grounds for it existed.</p> <p>Ancient probate proceedings: Presumptions. As strict proof is not required of ancient probate proceedings upon which defendants’ title is based, as if they were recent; and especially not when the proceedings called in question were had at a period in the history of our state whose judicial records are to a considerable extent lost or destroyed, so as to render it impossible in most cases to make a complete exhibit .of all the papers and proceedings.</p> <p>Territorial law construed: Register of probate: Partition. The register of probate in 1S1T had authority under the territorial act of January 9, 1811 (1 Ter. Laws, p. 160), to make partition of real estate among tenants in common.</p> <p>Recital: Deed : Partition : Order : Evidence. The recital of an order made by the register of probato that the administrator make conveyances in partition of the estate, contained in a deed dated in 1SIT, and purporting to be a deed in partition, and to be made in part execution of the order recited, where the deed is in the handwriting of such register, and is subscribed by him as a witness, and the acknowledgment taken by him, and where the record of the proceedings in partition is defective and parts of it lost, is held to be evidence of the granting of such order.</p> <p>Register of probate: Jurisdiction : Partition: Order: Presumptions. Where the register of probate, having jurisdiction under said territorial statute over the settlement of an estate and authority to partition the lands, has granted an order of partition requiring conveyance of a parcel to a party, one claiming under such party will not be required for the purpose of sustaining the jurisdiction of the register to grant such order, to prove that the party had an interest in the lands partitioned; for this would have been matter of evidence upon which the register must have passed affirmatively in making the order in question, and the order itself is the best and the only legitimate evidence that such a right was established.</p> <p>Partition proceedings: Parties: Presumption. It appearing that a party to whom a portion of an estate has been awarded by partition proceedings has accepted the deed and taken the benefit of it, no other evidence that he was properly before the court as a party to the proceeding is necessary.</p> <p>Remedy: Appeal. The proper remedy of any heir in the estate thus partitioned, whose interest was injuriously affected by the adjudication, and who was dissatisfied therewith, was am appeal under the statute.</p>

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

<p>Description: Boundaries: Evidence: Bes gestee: Conversation. In an action of ejectment where the question involved is whether the premises in snit aro included in the description in a certain deed, and the ambiguity does not appear on the face of the deed, but only by evidence, a conversation between the parties to the deed while the deed was being drawn, and in the presence of the scrivener, and in accordance with which an alteration was made in the description, is admissible in evidence as part of the res gesicet tending to identify the boundaries in dispute.</p> <p>Evidence : 'Statements : Boundaries. Evidence that the grantor in such deed, at the time the plaintiff purchased of the grantee therein, pointed out the line, was projjerly admitted, since they were statements made upon the land, by the owner of the land adjoining, in derogation of his own title to extend over the line pointed out.</p> <p>Construction of deed : Boundaries. The construction put upon the description of the premises in the deed, by the court below, is held to be correct; it is the only one suggested that harmonizes the entire deed, and it satisfies the general intent, and the particular calls as near as may be under the circumstances.</p> <p>Public road: Street: Plat: Boundary. The use of the expression “pnblic road” as a boundary in the description in a deed, where the question involved is whether that boundary was intended to be a mere paper street, as laid down on a plat, or an actual highway, known as such, and not by any name appearing on the plat, is construed to indicate the latter rather than the former.</p> <p>Public road: Boundary: Charge to the jury. The instruction to the jury, that whatever public road they found to have been referred to must govern as this boundary, was correct and in harmony with the deed.</p> <p>Boundary: Highway: Center of the road. Where a boundary is expressly made by a public road, it indicates an intent to convey according to the roles governing boundaries on highways, and the construction put upon such a boundary by the court below, that it would carry the title to the center of the road, is not erroneous.</p>