Volume 29 — Michigan Reports

<p>Construction of written instruments. In construing a written instrument the whole writing is always to be considered, and the intent will not be defeated by false English or irregular arrangement, unless the defect is so serious as absolutely to preclude the ascertainment of the meaning of the parties through the whole documeut and such extrinsic aids as the law permits.</p> <p>,JDeeds: Grantee: Construction. To constitute a valid conveyance the grant must undoubtedly in some way distinguish the grantee from the rest of the world; but if, upon a view of the whole instrument, he is pointed out, even though the name of baptism is not given at all, the grant will not fail; and it is not indispensable that his name, if given, should be inserted in the premises. Deeds: Grantee. An awkward and unskillful conveyance, which does not name any one as grantee otherwise than in the premises, as follows, viz.: “This indenture, made and agreed to between Jacob Sammons of the first part, and E. H. '* Genereaux of the second part,” etc., but which does expressly name said Sammoufi as grantor, sufficiently points out and identifies Genereaux as the grantee, bo that the instrument, after delivery and entry under it, cannot be held on that ground to be of no effect as a; conveyance.</p>

<p>Exceptions from the Recorder’s Court of Detroit.</p>

<p>Mortgages ; Notes payable at bank; Endorsement: Foreclosure. The assignee of a mortgage given to secure uotes made payable at a bank, who has presented the notes at their maturity, and the mortgage and the assignment thereof, at the bank for payment, which was refused upon an objection that the notes were not endorsed by the payee, is not precluded from foreclosing the mortgage by the fact that the mortgagor had deposited in the bank in his own name the money to pay the notes.</p> <p>Deposit: Payment. Such a deposit with instructions to the officers of the bank to apply it on the notes, which they refused to obey, would not place the money subject to the order or control of the holder of the notes, and therefore would not operate as payment.</p> <p>Note payable at bank: Agency : Payee: Maker: Payment. Making a note payable at a bank doeB not so far make the bank the agent of the payee, as that such a deposit with such instructions will operate as payment so long as the officers of the bank, assuming to act .on behalf of the maker, on demand of payment decline upon an untenable objection to pay over the money, or place it subject to the order or control of the payee.</p> <p>.Mortgages ; Notes payable at bank .* Assignment: Endorsement: Owner : Payment. Where a mortgage given to seenre a note made payable at a bank bas been assigned without the endorsement of the payee upon the note, the officers of the bank holding the money of the mortgagor for,payment of the mortgage are not justified when the note and mortgage and the assignment are presented by the assignee for payment, in declining payment upon the objection that the note is not endorsed by the payee; the formal assignment, duly acknowledged and recorded, would be the best possible evidence of ownership, and the real owner would be entitled to'demand and receive payment, whether the note is’ endorsed or not.</p> <p>Mortgages; Assignee: Foreclosure: Assignment. The assignee of a mortgage is entitled to foreclose in equity on proof of his purchase, without any written assignment. • . •</p> <p>Mortgages: Payment: Refusal. The refusal of the bank, under such circumstances, to make paj'ment on demand, is the refusal of the maker of the note, and the result is no different from what it would be if the latter in person should-make an exhibit of the monejr, but refuse on an untenable ground to pay or tender it.</p>

<p>Conditional sale : Bailment: Removal. A contract for the conditional salo of & piano upon the payment of the purchase price in installments, which provides that the piano shall remain the properly of the vendors until the full amount shall be paid, and tliat it shall in the meantime remain at the residence of the vendee at a place specified unless the written assent of the vendors is given to ‘ move the same, creates a bailment in the vendee: and the condition againat • removal is a valid one. — Come v. Tregent, 11 Mich., 65. ' ''*</p> <p>Replevin: Demand: Tortious taking. The transfer of the property to another city, and there pawning it for money borrowed by the vendee, is a direct violation of his duty as bailee which makes him a wrong-do'er; and the vendors may bring replevin against such pawnee withqut making a previous demand,.. »b his possession originated in a tortious taking. — Trudo v. Anderson, 1(P ffich357.</p>

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

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

<p>Bill to restrain collection of taxes: Legal taxes: Excess. Where a bill to restrain the collection of taxes shows precisely the amount of the excess of the taxes which is claimed to be illegal, and only asks to have the collection of such, excess restrained, the objection that it does not offer to pay the amount of taxes legally chargeable, is without force.</p> <p>School inspectors: Appeals: Bond: Approval. Under the statute {Comp. L.y §§ S7SU-5) providing for appeals from the board of school inspectors to tbe township board, tbe approval of the appeal bond is essential to complete an appeal; and the fact that the bond was presented to tbe clerk of the board of inspectors, who refused to approve it because it was not witnessed, even though tho objection be a frivolous one, made in bad faith and for vexation, will not render the bond sufficient without an approval, since, under the statute, it may be approved also by any justice of the peace of the township.</p> <p>School inspectors: Changing school districts: Interested tribunals. The validity of the action of school inspectors in changing the boundaries of school districts, is not affected by the fact that the inspectors were interested parties aá .tax-payers and residents: the disabling doctrine has no application tp those Administrative acts which are public, and not with or between private parties.</p> <p>School inspectors: Creating or changing school districts: Collateral attach. Th& regularity of the action of school inspectors in creating or changing school districts will not be inquired into in a collateral proceeding: their action is tho exercise of a public discretionary power, which can only be reviewed, if at all,, by some direct appellate process authorized by law and operating upon the proceedings themselves to affirm, reverse or change them.</p> <p>Corporations defacto. The same rule which recognizes the rights of officers defactyapplies to corporations defacto.</p>

<p>City treasurer : Official bond : Sureties. The sureties on the official bond of a city treasurer are liable only for the defaults of their principal during the -torra, for which their bond was given; and where such principal has held the office for preceding terms their liability is to be determined by considering the term for which they were sureties by itself, precisely as if he had succeeded some other person, and then requiring them to account for all the public money that came to his hands during that term;</p> <p>False entries: Forced balance : Sureties. Sums actually paid during one term are not to be disallowed to the sureties for that term because their principal in stating his account at the close of the previous term had credited himself with the same sums by false entries upon his books made to asBisfc in forcing a balance.</p> <p>Principal and agent: Sureties. A defaulting agent cannot make good his default, as between himself and his sureties on the one hand and his principal on the oth'er, by taking the principal’s money for the purpose.</p>

<p>Exceptions from the Recorder’s Court of Detroit.</p>

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

The petitioner having been convicted before a justice of the peace on a criminal prosecution for an assault and battery, appealed to the circuit. Being there convicted the court sentenced him to pay a fine of two hundred dollars, and on failing to pay the fine, to be imprisoned for ■one year. He made default and was imprisoned pursuant to the sentence, and is still in jail under it, although moré than three months have elapsed since his imprisonment began.

<p><Grantor : Possession; Presumptions : Mortgagee in possession. One who remains in possession of lands after having conveyed them to another will be presumed to hold in subordination to his conveyance; and this presumption would bo strengthened instead of weakened by His taking an assignment of a mortgage given to his grantee on a sale by the latter of the premises; and bis rights thereafter would be no greater than those of a mortgagee in possession.</p> <p>Mortgagee in possession : Title : Equity of redemption. The mere assumption of a mortgagee, evidenced by his giving a deed, that he has title in fee, cannot bar the equity of redemption; nor can an occasional occupation under such deed, or any occupation short of a continuous and notorious one adverse to the right to redeem, give it that effect.</p> <p>Mortgagor : Mortgagee ; Possession: Foreclosure. A mortgagor is entitled undér our statutes to recover the possession from his mortgagee at any time before his rights have been foreclosed in some manner.</p>

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

<p>Attempt tojire buildings, etc.: Statute construed. The statute (Comp. L., § 7557) punishing the setting fire to buildings or to any other material with intent to cause any such building to be burnt, or the attempt by any other means to cause any building to be burnt, will not warrant a charge for an attempt based on solicitation alone.</p> <p>Informations : Attempt to fire buildings, etc. The additional allegation in an information charging such an attempt by solicitation, that the defendant also furnished oil and matches to the person solicited to do the firing, does not help to fill up the measure required by the statute, and the charge would be equally as valid without it.</p> <p>Construction of statutes. In construing statutes general terms are subordinated by the sense of preceding and connected particulars; and this rule is especially applicable in the interpretation of statutes defining crimes and regulating their punishment;</p> <p>Statute construed. Applying this rule to the statute in question, it is held to contemplate the employment of some physical means to attempt to cause the building to be burned.</p>

<p>jMortgages : Foreclosure: Defense. The defense set up to the foreclosure bill in this case, that when a subsequent purchaser, one of the defendants, bought a portion of the premises, an arrangement was made between him and the complainant’s assignor that the portion so purchased was to be released from the mortgage upon the payment of certain sums, and which were afterwards paid by the other defendants, is not supported by the proofs.</p> <p>Defense : Anrner: Proofs. It íb essential to such a defense that the agreement be clearly set out, and that the proofs clearly make out such a contract as is legally binding: and where both answer and proofs are vague and uncertain, the defense will fail.</p>

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

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

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

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

<p>Informations: Verification: Waiver. An objection to the verification of an information, not made until after the jury is sworn, comes too late.</p> <p>Complaints: Statements: Bes gestee: Evidence. Immediate complaints made of .a crime of violence are to be regarded as a part of the res gestee ; and the admission of statements of that nature in evidence is not error.</p>

<p>Chancery appeal: Return ; Register. To a chancery appeal tlie register is required to return the entire record, and is not permitted to omit any thing upon-his own determination that it is not material.</p> <p>Mortgages; Installments; Foreclosure; Decree: Payment; Practice. , Each installment of a mortgage payable in. installments is so far separate .from the rest under the statute {Comp. L., § 5157), that a payment before decree in a suit to foreclose'for a single installment, puts an end to the suit; and payment after decree would have the same effect but for the saving clause of the statute.</p> <p>Equity pleading and practice ; Mortgage foreclosures ; Default: Admissions; Installments. The effect of a default iu a suit to foreclose for an installment is only to admit the securities as alleged and the amount then due; and it .cannot operate as an admission in the future of the non-payment of an installment not yet due.</p> <p>Proceeding for further d'ecree : Practice: Notice: Proofs. The proceeding for a further decree upon an additional installment, after payment of a prior decree, is essentially a new suit in all except form; and notice is required to every person whose interests are to he affected as in an original suit; and the rights of the parties can only be determined by proofs as in other cases.</p> <p>Default: Publication; Proofs; Payments. Upon a default by a defendant brought in by publication, cither under an original bill or a petition for " further 'decreo, there can he no decree without proofs; and the complainant should also be sworn as to payments.</p> <p>Death of mortgagor; Revivor ; Absentees. In case of death of the mortgagor after payment of the first decree and before proceedings for further decree on an additional installment, if a bill of revivor is not absolutely essential, ayerinents of equivalent import, by way of the statutory petition, are at least requisite; and absentees must be brought in by publication.--Comp. L§ 510S.</p> <p>Appearance. An appearance to set aside the proceedings for irregularities cannot be treated iu this case as an appearance in the cause. '</p>

Hopkins, justice of the peace.. This was a proceeding to take private property to widen a street in the village of Decatur.

Appeal iu Chancery.from Superior Court of Detroit. This was a bill brought by complainant in the superior court for the city of Detroit to quiet her title to certain lots in the city of Detroit, on the north side of Fort street, known as lots 11 and 12 upon the Military Keserye, so called.

<p>Mandamus: Common council: Public works act. Mandamus is granted to compel the respondents to consider and act upon nominations made by the mayor for their approval under the act to establish a board of public works for the city of Detroit.</p> <p>Municipal self-government. The constitutional right of municipal self-government considered and sustained.</p> <p>Legislative authority: Presumptions: Municipal government. The legislature having an unquestionable right to prescribe the general features of local government in subordination to the constitutional purpose, and the boundary between the domain of state and that of local powers being indistinct,' when legislation is assailed as an infringement upon the right of municipal self-government, not only will the presumption obtain that exists in every case, that the legislature purposed to keep within the limits of their authority, but more than the usual force will be allowed to the legislative judgment as to what is proper and admissible in the particular case.</p> <p>Municipal government: ' Common council. The common council of a city is a distinctive and inseparable feature in municipal government under our existing institutions, and cannot he done away with; nor can it he stripped of its legislative powers.</p> <p>Public works act: Legislative authority ; Constitutional law: Common council. The act in question, in its general purpose, is held not open to the objection that it takes away from the common council its general legislative authority; and it is construed to confer no authority upon the board, to make contracts for public improvements except subject to the approval ’of the common council.</p> <p>Administrative powers : Legislative powers. The fact that the act, in addition to the general duties imposed upon the hoard, which are of a purely administrative character, imposes others which may be called quasi legislative, is not important so long as the general legislative authority of the common council is not interfered with; some authority of a quasi legislative nature is essential to the efficient exercise of even purely administrative powers.</p> <p>-Constitutional law : Legislative authority. A legislative act will not be held unconstitutional because it attempts too much and confers some powers that are inadmissible, provided in the main the powers conferred, be lawful; except where such a law creates a system and the part which is legal cannot stand by itself without the aid of the rest, or is so much affected or disturbed by the rejection of the rest that it could not be supposed the legislature would have adopted it by itself, and then the whole will be rejected because the part cannot be regarded as the expression of the legislative will.</p> <p>Public works act construed. Whether or not there are any parts of the act in question which are unconstitutional, it is held its main features are valid, and its main purpose can be preserved and carried out without the exercise of any of the unusual powers at which objection is specifically directed.</p>

<p>Information in the nature of quo warranto.</p>

The relator, a private citizen, whose only interest in the matter, so far as set forth, consists in convenience of his access to the offices to consult the records, etc., and to procure subpoenas, etc., applied for mandamus to compel the respondent, who has been elected county clerk and register of deeds for Benzie county, to keep his offices at Frankfort, the former county seat, instead of at Benzonia where he has removed them, and where he claims the county seat has been…

<p>'Execution sales: Redemption: Junior purchaser: Ejectment. December 28th 3805, one Drary bought at execution sale Theodore J. Campau’s undivided interest as one of nine tenants in common in certain lands; January 15, 1808, Godfrey, Dean & Co. caused an execution to be levied upon the same interest* and on the sale became purchasers, and on June 29, 3867, a sheriffs deed in due form issued to their assignees, who conveyed to one Butler; no steps ■ were taken within the statutory period to redeem from the Drury sale, but on March 27, 1867, there was deposited with the register of deeds, but by whom is a disputed question, the amount of Drury’s bid and interest, which on the next day was paid by the register to Drury, who endorsed upon his certificate of • sale a receipt of the amount in full of his certificate; in June, 1872, Drury quit-claimed to Theodore J. Campau, and in October, 1872, the sheriff executed a dcéfl to him as Drury’s assignee; Campau and his Co-tenants, treating the Godfrey, Dean & Co. execution saleas ineffectual, proceeded to have partition made- in chancery of their individual interests, whereby the parcel in controversy in this suit was set off to Daniel J. Campau, who occupies byhiá tenant Whiting; Butler brings ejectment to recover the undivided ninth part of the-premises under the title derived from the later sheriff’s sale.</p> <p>Whether these proceedings under the Drury execution operated to defeat the force and effect of the sale and deed under the later execution so as to be a legitimate defense to this action of ejectment: — Qumre? Graves, Ch. J., and Cakybell, J., holding the affirmative, and Cooley, J., with whom Chris» riANCTj J., concurs, holding the negative. V</p> <p>Execution sales: Partition. A partition among tenants in common tó which an execution purchaser of the undivided interest of one of them was hot made a party will not affect the rights of such purchaser: per Cooley, J., Christianity, J., concurring.</p> <p>Redemption. The statutory right of redemption from an execution levy can Only be exercised as against the interests of non-consenting parties, by a strict compliance with the statutory provisions: per Cooley, ¿T., Christiancy, concurring.</p> <p>Execution debtor: Ilegal title: Failure to redeem : ■ Sheriff's deed. The interest ■of an execution debtor in lands levied upon and sold is something more than-a mere right of redemption; he has still the legal title with all the valnablerights and privileges which that includes; and his legal estate is not divested by meré failure to redeem, so long as the sheriff’s sale has not been carried into effect by deed; and for all purposes of a possessory action this naked legal right would be sufficient, and would enable the owner of it to appropriate all the beneficial use of the property, as against every one except the execution purchaser: per Cooley, J\, Christiancy J., concurring*</p> <p>Right to redeem : Execution sale. A mere right to redeem has never, under our statutes, been the subject of an execution sale: per Cooley, ff., Christiancy, J.,' concurring.</p> <p>Execution debtor's interest in lands: Faked legal title. The interest which an execution debtor has in lands sold upon execution, after the right of redemption has expired and before the execution purchaser’s title is perfected by deed, is a leviable one; and an execution sale under a levy upon such an interest, when duly completed by deed, would convey the naked legal title which the prior incomplete sale had not divested: per Cooley, J., Christiancy, J., concurring.</p> <p>Redemption : Faked legal title : Execution sale: Ejectment. It is immaterial whether the transaction in this case between Drury and the register of deeds amounted to redemption or not: if it did, the plaiutiff would have the legal title without any condition or qualification, and if not, he would still have the legal title subject to be defeated when the Drury sale was carried into effect,by the proper sheriff’s deed; either of which would entitle him to recover in ejectment: per Cooley, J., Christiancy, J., concurring.</p> <p>Immaterial Questions. The fact of redemption being immaterial, it is likewise-immaterial whether the money deposited with the register was paid by the execution debtor or not; and the refusal to submit this disputed question of fact to the jury was therefore not error: per Cooley, J., Christiancy, J., con.curring.</p> <p>Execution purchaser: Right to a deed: Waiver. The equitable right which an execution purchaser has to demand and receive a sheriff’s deed after the period fox redemption has expired, is one which may be lost by waiver at any time before the conveyance is actually made: per Cooley, J., Christiancy, J., concurring.</p> <p>Ejectment: - Construction of statutes: Equities. An action of ejectment* which depends upon the construction of statute law is not to be determined, upon the weight of the respective equities of the parties: per Cooley, J., Chbistianoy, J., concurring.</p> <p>Ejectment: Extinguishment of lien: Bights of third persons: Bevival. Where the question is one of legal right, as in ejectment, a third person may take advantage of the extinguishment of a lien or title, though he had no equity to insist upon its being extinguished; and when it is once extinguished, -it cannot be revived to his prejudice: per Cooley, J., Chbistianoy, J., concurring.</p> <p>Execution sales: Bights of purchasers: Common-law definitions and analogies. The precise nature and measure of the interest or rights arising upon the sale of realty on execution, before conveyance, is not to be determined by common-law definitions and analogies, but rather by construction of the statutory- provisions : per Graves, Ch. J.</p> <p>Execution sales. The legitimate effect of the proceedings under the Drnry sale was to vest in Theodore J. Campau, his assignee, aud the holder of his rights, the • full legal title which Campau as jndgment debtor held in the lands when the Drury levy was made, and to cut off all title depending on the later levy and sale, unless the transaction with the register of deeds rendered the deed from • the sheriff on the Drury sale not legally issuable: per Graves, Ch. J.</p> <p>Execution sales: Bedemption: Junior purchaser. Nothing short of a valid redemption would invest the junior purchaser with the right to insist as matter of law as against both the judgment debtor'and the purchaser at the prior sale, that the right of such prior purchaser to a deed from the sheriff was legally extinguished: per Graves, Ch. J.</p> <p>Execution purchaser: Bight to a deed: Bemedy. The right of a purchaser at execution sale to a deed after the expiration of the statutory period for redemption is so complete and fixed as to be cognizable at law and enforcable by mandamus, and not to require a resort to equitable remedies: per Graves; Ch. ¿T.</p> <p>Legal title ; Equitable interest. The right to the legal title, and the right to such deed as legal evidence of that title, are so closely and intimately connected and so near complete legal ownership of the land that the resulting interest or right cannot appropriately be called an equitable one: per Graves, Oh. J.</p> <p>Executiofb sales: Attempted redemption: Estoppel: Bes inter alios.' As between the immediate parties to the transaction whereby Drury received the amount of his bid, the latter might, after having once treated it as redemption, be precluded by circumstances raising an estoppel from afterwards shifting his ground; but as against the holder of the junior right, in whose favor no such estoppel has arisen, it is competent for them by mutual agreement to treat the transaction on one clay as redemption and on the next day as something different: per Graves, Ch. J.</p> <p>Ejectment: Equitable rights. If that transaction could be urged in any shape by the representative of the junior sale, it could only be as presenting considerations of an equitable nature, not available on the trial of the pure legal title in an action of ejectment: per Grayes, Ch. J.</p> <p>Bedemption. That transaction, whatever it majr be called, was one wholly insulated and confined to the immediate parties, and not capable of receiving’aDy impression from the statute from its own inherent force: per'Graves, CH. J.</p> <p>Execution purchaser : Bight to a deed : Extinguishment: Waiver: Question of fact. Even if the right to a deed on the prior purchase could in any way be' extinguished by an act which could only produce that effect by reason of a Waiver of the right,' the question of waiver would be one of fact to bo submitted to the jury: per Graves, Ch. J.</p> <p>Execution sales: Statutory rights. The rights involved in this case are all legal rights, depending upon the statutes and nothing else, and must be considered in that light: per Campbell, J.</p> <p>Execution creditors : Redemption. The right given by the statute to execution creditors to acquire the interest of a prior execution purchaser by payment of tbe amount of the bid and interest after tbe time for redemption has expired, ■would not be open to them after a sale to them upon their execution ; they would then have only the same right to redeem from the prior sale as the execution debtor himself has: per Campbell, J.</p> <p>Execution sales: Junior purchaser. On the expiration of the statutory period without redemption, the Drury title became indefeasible; and the deed thereafter issued on it to his assignee operated to defeat the title under the junior purchase: per Campbell, J.</p> <p>Execution purchaser: Equitable estate: Assignment: Statute of frauds. The interest of an execution purchaser, though not the legal estate, is an equitable estate which onr statute protects by an action of trespass or waste, before deed, and which, after deed, relates back to the sale, for injury to the land; it is an interest capable of assignment, but requiring an assignment to be executed and acknowledged like deeds of land; and it can only, be divested, otherwise than under the statute of redemption, by an instrument conforming to the requirements of the statute of frauds: per Campbell, J.</p> <p>Redemption: Statutory rights. The statutory redemption, being exceptional, cannot be made valid except in conformity to the statute by tbe proper parties and within the statutory period: per Campbell, J.</p> <p>Parol redemption: Intej'est in lands: Transfer : Estoppel: Statute of frauds. The transaction between the register of deeds and Drury, being too late to operate as a parol redemption, could only have force as a contract; and being invalid under the statute of frauds as a transfer or release of an interest in lands, and there being no ground for it to operate as an estoppel, it could hay©, no bearing on tbe case: per Campbell, J.</p> <p>'Execution purchaser : Purchaser under contract. The interest which is obtained by an execution purchase which is not lawfully redeemed, and before deed, is precisely the same that is obtained by a parchase paid for under an executory contract: per Campbell, J.</p> <p>Practice: Divided court: Costs. Where a judgment is affirmed under the statute {Comp. Z.t § b923) by reason of the court being equally divided, costs of the supreme court will not be awarded to the defendant in error.</p>

<p>Names : Identity. The nse of different names by a party is immaterial where the question is one of identity merely, and the identity is clearly established.</p> <p>Names: Idem sonans. Whether or not the names “JBoyce” and “Bice" are sufficiently identical in sound to make the rule of idem sonans applicable:— Quaere t</p> <p>Pre-emption laws: Aliens: Declaration of intention. One of foreign birth who is otherwise duly qualified, is entitled under the pre-emption laws, after having in due form declared his intention of becoming a citizen, and before becoming fully naturalized, to file and maintain a pre-emption claim.</p> <p>Settlement: Possession. The settlement upon the land required by the pre-emption laws is that of a qualified person; and the fact that one of foreign birth had been in possession prior to the date of declaring his intention to become a citizen would not preclude him from pre-empting the land of which he continued in possession; and his settlement would be considered as commencing with the date of such declaration of intention.</p> <p>The fact that one who had thus been in possession stated in his claim that he settled and improved the land at the date of his first taking possession, where he has otherwise complied with the law as in case of a settlement made at the date of his becoming qualified by declaring his intention of becoming a citizen, will not invalidate his pre-emption.</p> <p>Res adjudícala ; Land office: Register and receiver. The action of the register and receiver of the United States land office in accepting the proofs furnished by a pre-emptioner as satisfactory, and receiving his money and issuing to him the usual duplicate, is a judicial determination of his rights, which is conclusive in all collateral proceedings.</p> <p>Review : Commissioner of land office: Ex parte proceedings. Whether or not the commissioner of the land office has any authority under the statute to review and reverse the action of the register and receiver where there is no adverse claim under the pre-emption laws, his action, relied upon in this case, in exercising such right without notice to the party concerned, and thus overturning a formal adjudication without the privilege of a hearing, was contrary to the first principles of right; and moreover it was founded on a mistake of the facts.</p> <p>Equity jurisprudence: Patentee : Trusts. A court of equity may in a proper case adjudge the patentee of lands to hold as trustee for one having greater equities.</p> <p>Laches : Possession. A delay of five years by a party in possession in filing a bill to obtain the legal title will not bar his equity where nothing has been lost by the other party in consequence.</p> <p>This case and Campau v. Van Dyke, 15 Mich., 871, distinguished.</p>

<p>Mortgages: Foreclosure ; Mortgagor's title. Complainant conveyed certain lauds to defendant’s father and took a note and mortgage for a portion of the purchase price; his wife destroyed the mortgage before it had been recorded; defendant’s father conveyed the lands to defendant, and afterwards died; complainant filed his bill to foreclose said destroyed mortgage, and thereupon defendant gave his mortgage upon the same lands to complainant in exchange for said note against his father, and afterwards presented the same against his father’s estate as a claim in his favor, and had it allowed:</p> <p>Held, That in a suit to foreclose the latter mortgage the complainant is not in a position to question the validity of the conveyance to defendant from his father; having parted with his prior unrecorded lien, he must stand upon the new mortgage received in its stead, and whatever defeats his mortgagor’s title defeats also his mortgage lien.</p> <p>Mortgages: Destruction of instrument: Lien: Notice. A purchase price mortgage which was destroyed by the mortgagee’s wife before being recorded, is held to have been a valid and subsisting lien upon the lands as between the parties and all others claiming with notice; the destruction of the paper evidence of it did not annihilate the lien.</p> <p>Evidence ; Release of lien. One holding such a lien might contract to release the lien and hold only the personal security to which it was collateral; and the existence of such an arrangement may be established by circumstantial evidence, but not by vague and careless expressions or dim and shadowy inferences; the evidence on that point in this case was not sufficient.</p> <p>Evidence; Burden of proof. Where, in defense to a foreclosure suit, it is averred that the mortgage was procured by false representations, the burden of proving such representations is on the defendants.</p> <p>False representations; Evidence. The proofs fail to establish the averments in the answer, that the mortgage in question was procured by representations that the prior mortgage (which had been destroyed) was recorded, or that it was still in existence.</p> <p>False representations. The prior mortgage, though destroyed, constituting a valid and subsisting lien upon the lands, a representation that it was still in' existence, made to one who had purchased with notice, would be immaterial.</p> <p>Estoppel : Fraud : Election. Parties who have given a mortgage in exchange for a promissory note against their father, are estopped, after having deliberately presented the note as a claim in their favor against their father’s estate and had it allowed, from defending against the foreclosure of such mortgage upon any assertion that the same was procured by means of any false representations the falsity of which was known to them before prosecuting such claim ; having treated the note as their own, and thus asserted an election to affirm the original exchange, they were not at liberty when called upon to pay the mortgage, to turn round and assert a right to elect again and in a way to stultify their first election.</p>

<p>Registry: Mistake: Constructive notice: Bona fide purchaser. The recording laws cannot be made by equitable construction to embrace cases not within them, or to give constructive notice of things the records do not show; and Where a mistake is made in recording, a subsequent purchaser has a right, in the absence of actual notice of the mistake, to rely on the records as showing the exact facts.</p> <p>Levy: Noticei Mistake: Oral statement: Registry: Bona fide purchaser. Where the recorded notice of a levy, by mistake omits a portion of the premises levied upon, an oral statement simply, by the execution creditor, that Such premises have been levied upon, without any suggestion that a mistake had been made in such notice, will operate only to make it the duty of the person so notified to search the records before purchasing, and if they show a notice of a levy on other lands, but not on those in question, he may rely upon the record as correct rather than such oral statement.</p> <p>Levy : Mistake : Notice. What would be the effect of actual notice that a mistake had been made iu the recorded notice, or of an actual exhibition of the execution with a levy upon the land in question endorsed thereon, is not decided.</p>

<p>Bguity jurisprudence : Specific performance : Mutuality. Equity -will not enforce specific performance of a contract upon one side where the duties to be performed on the other side are such as to be incapable of being specifically enforced.</p> <p>Partnership: Specific performance. An agreement to enter into a partnership which is silent as to the duration of the partnership will not be specifically enforced; since snch a partnership may be dissolved at the will of either partner as soon as it is formed.</p> <p>Specific performance: Personal s7cill and judgment. Courts of equity cannot assume to specifically enforce an agreement to enter a co-partnership, and as a member of the firm to use and exercise personal skill and judgment according to, the shifting needs of property and business from time to time, in the control and management for the firm of the partnership business; and they will not, therefore, enforce the other side of a contract of which such an agreement is the counterpart.</p>

<p>Criminal law : Commitment foi' trial: Holiday: Examination. A commitment for trial is not void where a prisoner was arrested and brought before a magistrate on a valid complaint on the 21st of February, and the examination continued from day to day for Several days, one of which, — -the 22dt — was a legal holiday.</p> <p>Examination: Judicial - proceedings: Adjournmen ts : Records: Irregularities. Proceedings of this nature are not “judicial proceedings” in the technical sense of the term, and when once commenced, on proper complaint and arrest, will not abate before the final disposition by discharge or commitment. The proceedings are not technically records, and do not require technical nicety as to adjournments; and irregularities therein cannot be considered on the subsequent trial of the prisoner on the merits.</p> <p>Informations: Motion to quash : Preliminary examination. A motion to quash an entire information for want of a preliminary examination as to a part only of the counts, cannot he granted. . It should bo confined to counts plainly specified.</p> <p>Informations: Misjoinder of counts: Demurrer: Motion to quash: Practice. A misjoinder of counts is not ground of demurrer, but may be of a motion to quash. Such motion should be granted when otherwise the defense would he subjected to serious danger of surprise or perplexity in preparing for trial. But in cases where all the counts may refer to one transaction, the respondent can be sufficiently protected by confining the proof on the trial to such matters as relate to that, and which he may be expected to be prepared to meet.</p> <p>Motion to quash : Discretion. A motion to quash is usually discretionary, and is not reviewahle when it rests in discretion and not in right.</p> <p>Evidence: CTtancery record: Motive: Burning property to defraud insurers. Where a person was charged with burning property to defraud insurers, evidence of a pending chancery suit concerning the title should not have been introduced to show a motive to defraud, when the time for taking proofs had expired some time before the fire, and the answer denied the equity of the bill. A fortiori, evidence of a suit brought subsequent to the fire was improper.</p> <p>Evidence : Res gestee : Motive. It is not improper, on an indictment for fraudulently burning a barn, without any allegation as to burning its contents, to show what was in it. The whole transaction should be open to the jury,,and the fullness or emptiness of the barn might bear upon the motive to destroy it.</p> <p>Statements : Admission. A statement, made several months after the barn was burnt, that the respondent had a good insurance on his house, and it might go to blazes with the barnt is not an admission that he burned the barn.</p> <p>Evidence: Raise statement: Res gestee. A false statement made by one of the defendants after the fire, to the import that the barn was not insured, is no part of the res gestee, and could not aid in defrauding the insurers, and should not have been received against another defendant.</p> <p>Statements of third persons: Hearsay. Statements of fact given by a third person to a witness are pure hearsay, and inadmissible in evidence.</p> <p>Evidence : Conspiracy: State's evidence: Cross-examination. Where a witness who had turned state’s evidence stated that a dance was got up as a part of the plun for drawing off attention from the proposed fire, evidence that the dance had been arranged before the time when that witness fixed the conspiracy, is legitimate to contradict him; and in this case it was also proper cross-examination of another government witness, who had testified that there was such a dance, and had described what took place at il.</p> <p>•Conspiracy: Circumstantial evidence: Impressions ; Subsequent suspicions. A witness who swore to seeing the three defendants conversing by themselves soon after the fire, should have been allowed to be cross-questioned whether this impressed him at the time, and when he first mentioned it. It is always important to know whether impressions have been .warped or changed by subsequent suspicions, or whether at the time they were such as to strike attention and become accurately fixed in memory. The whole value of circumstantial evidence depends on the truth and accuracy of observation.</p> <p>Witnesses: Procuring testimony; Cross-examination; Bribery;- General statements : Evidence: Statements referring to the case at bar. Evidence that a witness has been active in procuring testimony may be received to impeach him, when he has denied it on cross-examination. — Gearij v. People, 22 ÉJich. R., 220, followed as establishing the same principle as to bias or interest. But evidence of general statements of such a Witness, not made in connection with this casé, that hé tvaS open to bribery, would be collateral and inadmissible. But such statements referring to the case at bar would be material.</p> <p>Witness: Cross-examination: Desertion : Charged with crime. A witness may be asked oñ cross-examination if he has been guilty of desertion, or charged with crime.</p> <p>Evidence: Burning property: Probabilities: Circumstantial evidence. It was erfoi* to exclude testimony for the defense that persons had been, in the habit óf playing cards in the barn with lights; as fire might have taken in (hat Way, and all circumstances bearing on the probabilities were material.</p> <p>Witness : Stale's 'evidence: Privileges ; Waiver ; Confidences: Client and counsel. A person who turns state’s evidence and swears to an offense in which he was a p'arty, thereby waives his privilege against criminating himself in that matter, and' has no right to set it up ds to statements made to his ‘counsel, or to refuse answering himself. The privilege aé to Confidences between client and counsel are for the client’s benefit, and may be waived by the -client, ánd all privileges áre waived by a state’s evidence, in regard tb the facts in controversy. He must disclose fully.</p> <p>Evidence: Answer not responsive: Objections: Depositions. When a witness gives an answer not responsive to a question, but which would haVe been admissible if he had been asked about it, no one can object io it as not responsive but the pdrty questioning. If he is willing to receive it, his adversary cannot have it stricken out. The rule may be different when testimony is taken by deposition, as counsel may in such case lose the opportunity of putting further questions to follow it up. — Gi'eenman v. O' Connor, 25 Mich. JR., SO, distinguished on this ground.</p> <p>Impeachment; Sustaining witness: Cross-examination: Reputation. Where a sustaining witness testifies to the good repute for truth of an impeached witness, he may be asked on cross-examination whether he would believe the latter on oath. The subject of impeaching witnesses discussed, and Mr. Green-leaf's statement as to the American doctrine criticised.</p> <p>Reputation of witness ; Time of trial: Place: Change of domicile. The object of inquiring into reputation for veracity is to ascertain the witness’ standing at the time of trial, and the inquiry should be directed to that time, although it may extend over a reasonable time, and in different places, where there has been a change of domicile.</p> <p>Deformations ; Improper counts : Discontinuance : Acquittal: Practice. Where ah information contained counts not charging all the defendant's jointly, and • counts charging a different offense from that on which they had beeh examined, the court erred in not directing a discontinuance or acquittal on Such Improper counts, and should not have received testimony under them.</p> <p>Charge to the jury : Accomplice: Credibility. A jury cannot be instructed that they are bound to accept and credit testimony of an accomplice, either standing alone or more or less corroborated. It is their province to determine ■whether he is to be credited at all, and if so, to what extent.</p> <p>Credibility of witnesses: Question for the jury. And if they believe a witness has wilfully falsified in any particular they are not required to credit him in other matters, unless convinced that he has, as to such matters, sworn truly. As they know he will not be restrained by his oath, they must judge for themselves how far, if at all, corroboration in some particulars renders it safe to believe him. The court cannot require' them to credit testimony under any circumstances against their own conclusions from it.</p> <p>Criminal trials : Jury: Questions of law : Charge to the jury. The jury are hound to receive the law from the court in criminal as well as civil cases. They are only judges of law and fact in the sense that their verdicts are not always open to correction when they choose to disregard the law. But the power of giving wrong verdicts with impunity does not render such verdicts right.</p> <p>Questions of law : Court: Jury. Certainty in the law, as far as attainable, is necessary for private and public security, and this can only be had by leaving it to the courts to declare the law, and not by leaving it open to the varying opinions of different juries.</p> <p>Charge to the jury: Comments on the facts. Where a charge explicitly and positively informs a jury that they have the exclusive right to determine upon the facts, it will not be held erroneous for such remarks upon facts as are not calculated to mislead them as to their rights and responsibilities.</p> <p>Charge to the jury : Reasonable doubt: Subtleties: Technicalities. Juries are presumed to have common sense enough to need no metaphysical explanations of what will constitute a “reasonable doubt.” It is not desirable in jury trials to introduce such subtleties and technicalities of language as are more likely to confuse than to instruct them.</p>

<p>■Criminal law: Evidence: Statements of co-defendant: Conspiracy. A defendant tried separately may object to any testimony concerning the acts or sayings of another defendant, when there has been no evidence introduced to connect them together in a conspiracy, and no assurance that such proof will be made.</p> <p>Witnesses: State's evidence : Cross-examination : Feeling. It is error to refuse to allow a witness who appears as state’s evidence, to be asked on cross-examination whether he had not said to a person named that he had pleaded guilty, and that he would not go to state’s prison alone. It bore directly on his disposition towards his co-defendants.</p> <p>Witnesses: Bias: Cross-examination : LooMng up testimony. The bias of a witness is always open to full cross-examination, and he may he properly asked as to the interest he has taken in the case and in getting proof.</p> <p>¿Evidence; Written statement; Cross-examination: Impeachment: Credibility. Where such a witness acknowledged that he had made a written statement or narrative, which was shown him, and it was claimed to conflict with his testimony on the stand, and purported to explain how he was induced to testify for the prosecutions the whole paper should have been allowed to be introduced to impeach him, and it was error to require any part of it which was pertinent, to be excluded because it bore upon third persons. The defense were entitled to have his credibility fully tested before the jury, and his ..contradictions and explanations weighed.</p> <p>*Criminal law : Good character. Testimony of good character may always he introduced by a defendant in a criminal trial. — People v. Garbutt,-17 Mich., 26.</p>

<p>Error to Wayne Circuit.</p> <p>This was an action upon a justice’s judgment in favor of plaintiff and against defendant.</p>

When this cause came on to be heard, counsel for plaintiff in error called attention to a stipulation on file signed by the plaintiff in error, and by at least one of the defendants in error, for a dismissal of the writ of error. Counsel for defendants in error, on a showing that he had had no notice of such stipulation, and had noticed the case in good faith and prepared for the hearing, moved for costs.

<p>Injuries to domestic animals : Double damages : Penalty: Mad dogs. The statute {Comp. L. 1871, § 2065) making the owner liable in double damages for the killing, wounding or worrying of domestic animals by a dog, is penal in its consequences, and is not designed for cases where the owner was in no manner in fault; it does not apply to the case of a rabid dog. — Graves, Oh. J., dissenting.</p> <p>Exemplary damages. Damages in excess of the real injury are awarded in some cases because the conduct of the party has been peculiarly malicious, vindictive, or reckless, but are never appropriate to cases where the injury has proceeded from his misfortune rather than from any blamable misfeasance or nonfeasance.</p>

Afterwards, on May 6, 1874, the plaintiffs in error moved in this case and the case next following it, for a .stay of proceedings, upon a showing which is sufficiently ■set forth in the following opinion.

<p>Evidence: Objections: Practice. Where incompetent evidence lias been rejected upon an objection that it was immaterial and irrelevant, the judgment will not he reversed on this ground unless it appears that the ruling worked legal prejudice to the party offering the evidence.</p>

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

<p>Equity jurisprudence: Payment by one for lands conveyed to another; Vendor's lien. Under a bill claiming rights in lands by virtue of the complainant’s having located them with land warrants owned by himsolf, in the name of the defendant, without the knowledge of the latter, and when he was an infant and living with complainant as a member of his family, as a recompense for the services he was expected to perform before arriving at his majority, a decree for the complainant cannot be sustained upon the theory that the transaction constituted a sale of the lands by complainant to defendant for the-consideration of services to be performed by the latter while he remained, a minor, whereby, upon default of the defendant, an equitable lien could accrue to the complainant for the value of the warrants, etc.; the theory of a vendor’s-lieu is inconsistent with the case made by the bill.</p> <p>Purchaser; Vendor's lien. A person cannot become a purchaser by a transaction of which he is wholly ignorant; nor can there be, as against him, a vendor’s lien for a purchase price which he never agreed to pay.</p> <p>Equitable mortgage. Neither can the transaction set up in the bill be regarded as constituting an equitable mortgage of the lands by complainant to defendant to secure the latter a compensation for services to be performed by him; it does not appear that any such bargain was made, or that defendant ever agreed to perform any services, or to receive payment for his services in lands.</p> <p>Delivery: Agency. The transaction in this case being a purchase from the United States by the complainant in the defendant’s name, a delivery of the certificate of location to complainant for defendant is in law equivalent to a delivery to defendant in person ; and the fact that complainant never delivered it to the defendant would be unimportant.</p> <p>Resulting trusts : Statute construed. The case made by this bill comes directly within our statute {Comp. L., § U120) abolishing resulting trusts where a grant is made to one person and the consideration paid by another, and yeBting the title in the person named as alienee in the conveyance.</p>

<p>Mortgages: Deceit: Future credit: Consideration. A mortgage given by the mortgagor on the understanding that he should have a future credit, and which the agent of the mortgagee who took it knew would not have been given except upon that understanding, cannot be enforced for a different purpose; and where no future credit is given and no advances made, it will be held to be without consideration.</p> <p>Deceit: Impression: Literal meaning. Wo one can evade the force of the impression which he knows another received from his words and conduct, and which he meant him to receive, by resorting to the literal meaning of his language alone. Every one is responsible for the belief he intentionally creates, whether by words or otherwise, and will be precluded from profiting by any unconscionable use of an obligation which has been thus wrongfully obtained.</p>

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

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

<p>Insurance: Agent: Delivery: Policy: Renewal receipt; Countersigning. When the agent of an insurance company has delivered a policy or a renewal receipt with his name written upon it and as a completed instrument, neither he nor the company can afterwards object that it was not countersigned by him.</p> <p>Names: Identity. The fact that one who has contracted in the name of O’Con-nor calls herself Connor, is immaterial where she is known by both names and the identity is clearly made out.</p> <p>Evidence: Proofs of loss : Time: Formal inaccuracies: Waiver. In an action npon an insurance policy where it appears that the proofs of loss were furnished a few days too late and were formally inaccurate, it is competent to show that they were received by the agent and transmitted to the company, and that neither made any objection to the form or substance, or to the time of presentation of such proofs, and that the agent went on to repair the loss to another building insured by the same policy and damaged by the same fire, and that the company allowed his expenditures; this would tend to prove a waiver of the irregularities.</p> <p>Waiver: Intent: Inference. The question of waiver is one of intent, and is-a proper subject of inference from surrounding circumstances.</p> <p>Waiver : Formal proofs; Notice of loss. The waiver of strict formal proofs is a waiver also of all precedent requirements, such as the giving to the company immediate notice of the fire.</p>

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

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

<p>Error to Superior Court of Detroit.</p>

Case made from Kent Circuit. This was a summary proceeding for the possession of land. The case was brought before a circuit court commissioner and taken by appeal to the circuit court. The circuit judge tried it without a jury, and filed a special finding, giving judgment for the complainants.

<p>Statute construed: Married women: Parties: Wife's torts. Under our statute {Comp. L. §§ 6129, 7S82) the husband is no longer responsible, in person or property, for the torts of the wife, so that there would seem to be no reason for joining him as a defendant; yet it is assumed, in these very statutes, that he is still a proper party, and whether a necessary one- or not, he is at least not an improper party.</p> <p>Evidence: Slander: Admission: Supposition. In an action for slander it is competent to prove an admission by the defendant, that she supposed she had repeated the story; though it was only her supposition, it tended to prove the fact.</p> <p>Slander: Chastity: Declaration: Special damages: Evidence. Under our statute (Comp. L. § 6176) making the imputation of want of chastity in a female actionable per se, it is competent in an action for such a slander, without any averment of special damages, to prove that in consequence of the slander the plaintiff was excluded from the society in which she formerly moved, and waiaffected in mind and health.</p> <p>Evidence. Where a witness for the plaintiff in slander has testified to the speaking of the words by the defendant, and on cross-exaraiDation has stated that she had previously heard the same story from others, it is competent on reexamination to ascertain from whom she had heard it: the extent and prevalence of the story was a proper subject of inquiry; and the plaintiff had a right, if she could, to trace it back to the defendant.</p> <p>Slander: Evidence: Infants: Detraction and apology: Accord and satisfaction. The exclusion of evidence that, pending a former case between the same parties and relating to the same subject matter, and on the trial thereof, an understanding was come to between the parties whereby it was agreed that the two defendants should go upon the stand and under oath disclaim all belief in the reports, and that this should be considered a satisfaction of the plaintiff’s cause of action and the suit should be discontinued, and that this understanding was carried out, in a case where the plaintiff was an infant and brought the suit by her ' next friend, is held not to be error: it was neither admissible in mitigation of damages, as a retraction and apology, nor as proving an accord and satisfaction.</p> <p>Infants: Next friend. An infant is not bound by any attempted relinquishment of her rights by her next friend.</p> <p>Slander: Belief: Damages: Question of fact: Presumptions. The circulation of vile, defamatory and slanderous language concerning another, and especially concerning the chastity of a woman, is not wholly excused by a protest, at the time, of disbelief, or by a showing that those who heard the slander did not believe it to be true; such conduct is actionable; and the question of the extent of the responsibility is one for tbe jury, and not to be solved by any presumptions of harmlessness.</p> <p>Charge to the jury: Slander. The instructions to the jury in this case are held not to be open to objection as assuming facts which were not proved, in speaking of the plaintiff as a sensitive girl who had suffered in consequence of the slander, and in calling attention to the relative situation of the parties, etc.</p> <p>Slanderi Malice: Question of fact. It is not error to submit to the jury the question whether there was actual malice in the utterance of slander where the evidence is sufficient to warrant a finding that due caution has not been observed by the defendant, and that she has assisted considerably in spreading the injurious report, even though no actual design to injure is shown.</p>

<p>Exceptions from Recorder’s Court of Detroit.</p>

<p>Examinations preliminary to the issue of warrants. The object of the oral examination of the complainant and such witnesses as he may produce, required by the statute {Comp. L. § 78UH) before issuing a warrant, is to enable the justice to determine from it whether there is sufficient ground for issuing a war- • rant to require the accused to submit to an examination; and certainly no stronger evidence could be required for issuing the warrant for arrest, than would be for holding the accused for trial after the arrest.</p> <p>Complaint: Preliminary examination of .complainant. Whether where the complaint for arrest is in due form and sufficient on its face to give jurisdiction, it is competent to go behind it to show that no oral examination was had upon oath of the complainant before issuing the warrant: — Quaere ? *</p> <p>Jurisdiction to issue warrants. But where a complaint for assault with intent to ravish, etc., Is thus regular on its face, a showing merely that the warrant was issued upon such complaint and an oral examination of the complainant alone, and that he testified only from knowledge and information derived from his daughter, the victim of the alleged offense, is not sufficient to show that the , justice acted without jurisdiction in issuing his warrant.</p> <p>Evidence: Complaints: Bes gestee. Complaints and statements made to her father by the victim of such an offense immediately after the injury and in reference to it, as well as her appearance at the time, would be admissible evidence for the prosecution even upon a trial, and such evidence, together with other surrounding circumstances, might, in some cases at least, be sufficient to justify the issuing of a warrant without waiting to take the testimony of the daughter herself.</p> <p>Warrant: Jurisdiction ; Justice of the peace: Weight of evidence. Where there is admissible evidence tending to show the probable guilt of the accused, the jurisdiction of the justice to issue a warrant of arrest will not be reviewed upon the weight of the evidence; that is a question for the justice alone, and n if it satisfies him and he issues the warrant his decision is conclusive.</p> <p>Warrant: Arrest. Whether the issuing of a warrant and the arrest of the accused upon it are in all cases a necessary pre-requisite to a valid examination upon the charge of an offense not cognizable for trial by a justice of the peace; or whether it answers any other purpose than that of enforcing attendance of the prisoner and preventing his escape: — Quceref</p> <p>Complaint: Arrest. A complaint, however, is a necessary pre-requisite.</p> <p>Arrest: Warrant. And in cases of offenses triable before a justice a warrant is necessary under our statute {Comp. L. § 5529), providing that the accused is to he tried for the “charge stated in the warrant.”</p> <p>Assault with intent to ravish, etc.: Felony, The offense charged in this case, which was an assault with an intent to commit a rape, is a felony, and not triable by a justice of the peace.</p> <p>Charge to the jury : Besistance : Presumptions. The charge to the jury in this case, in reference to the age, physical development and knowledge of the victim of the alleged offense, and the bearing of these facts upon the question of her resistance, is held not to have been prejudicial to the defendant. There is no conclusive presumption as one of law, that a girl nearly fourteen years old would understand the nature and consequences of the act in question; and upon the question of resistance, and the extent of the effort to resist, it is proper for the jury to consider the age, strength and capacity, mental and physical, of the person, as these facts appear in the evidence.</p>

<p>Equity pleading and practice: Closing proofs: Stipulation: Order extending time. A stipulation in a chancery canse to take proofs before a named justice of the peace, commencing on a certain day and continuing from day to day till completed, does not take the case out of the rules as to closing the proofs by common order, where the usual order to take proofs within sixty days had been entered before the stipulation, and the time had afterwards been regularly extended by further order; if such stipulation could he understood by itself as an indefinite extension of time, it was superseded in this regard by the subsequent order for a limited extension.</p> <p>Bill in equity; Quieting titles : Accounting: Partition: Demuirer. The bill in this case, brought by heirs to remove a cloud cast upon their title by the frauds of their mother and another, by means of an unauthorized administration upon the estate of their father, and which prays for an accounting, and also for a partition, though inartificially drawn, is held good on demurrer.</p> <p>Fraud : Parties : Notice. Under a bill to remove a cloud from the title for the frauds of one who held a title apparently good of record, the decree below, as against a subsequent mortgagee, who is joined as a defendant, but is neither alleged nor proved to have had notice of the fraud, is not sustained.</p> <p>Quieting titles: Deed: Estoppel. Under such a bill, where, subsequent to the fraud, the title to one parcel had passed out of the defendant and by mesne conveyances through one of the complainants and back again to the defendant, such complainant is held estopped by his deed from asserting title to this parcel.</p> <p>Bill in equity: Quieting (Ules: Fi'aud. As against defendants to such a bill who are alleged to hold interests in the present title, averments that they purchased from their co-defendant, whose fraud is complained of, and that the title conveyed to them was void for defects apparent upon its face, would be sufficient ; but a mere averment tbat such defendants have acquired interests and liens which are fraudulent and void against complainants, without showing that they derived title through such co-defendant, in the absence of any allegation of distinct facts invalidating the rights which they assert, upon which they •could take issue, will not support a decree upon confession.</p> <p>Administrators : Accounting: Estoppel. Defendants who have asáumed without authority to administer an estate, and claim to have administered fully, are estopped, when called upon, either in the probate court or in a court of equity, for an accounting, from denying their representative character, or their liability to account accordingly.</p> <p>Accounting: Reference: Pi'oduction of witnessesThe decree below was erroneous in restricting the production of witnesses on the reference for an accounting, to the complainants and the infant defendant, to the exclusion of those who had suffered the bill to be taken as confessed; those whose fraudulent administration was complained of should have had leave to produce their evidence on the accounting, notwithstanding their default íd answering.</p> <p>Infants : Guardian ad litem. The appointment as guardian ad litem for an infant defendant whose interests are identical with the complainants, of his co-defendant, who is charged in the bill with defrauding him in common with the complainants, is a perversion of the whole purpose of requiring such guardianship.</p>

<p>Constitutional law: Homestead. Our constitution exempts a homestead only as an entirety, and not a part of, or an undivided interest in a homestead.</p> <p>Homestead: Undivided half: Upper story of building. Whether, under the statute {Comp. D., §§ 6187-6U5), there is any practical mode, without further legislation, of working out and securing any homestead in au undivided half, at least where the claim of homestead is set up to the upper story only, of a building owned in common with another: — Queers?</p> <p>Ejectment: Homestead: Conveyance: Evidence. In ejectment, where a homestead right is set up in defense to a mortgage foreclosure title, evidence of tho conveyance of the property by the defendants to a third person after the time when they claim their homestead right attached, is admissible; such conveyance had a direct and very substantial bearing upon the question of their homestead rights.</p> <p>Mortgages: Purchase money : Parties ; Wife; Homestead. A mortgage for purchase money is a valid security, even against a homestead, though not signed by the wife.</p> <p>Foreclosure: Parties: Wife: Purchase money mortgage. The wife of the mortgagor is not a necessary party to a bill to foreclose a purchase money mortgage given by the husband alone at the time of his purchase, notwithstanding she claims a homestead right in the premises.</p> <p>Undivided half: Warranty deed: Presumptions. Where the owner of an undivided half of premises buys the other half, giving back a purchase money mortgage, not executed by his wife, upon the whole premises, and then with his wife conveys by warranty deed an undivided half, in general terms, to a third person, in an action of ejectment brought by the purchaser at foreclosure sale on said mortgage, against the mortgagor and his wife, who claim a homestead right, it will be presumed, in the absence of any evidence on the subject, that the half conveyed to such third person was that having the better title and tho least liable to encumbrance, rather than the half wherein a purchase money lien had. precedence of all hom'estead rights of the grantors.</p> <p>Homestead : Defense: Durden of proof. Where the claim of homestead is setup in defense to an action of ejectment in a case where the plaintiff’s right of recovery is clear, aside from the question of a homestead, the burden of proving the facts necessary to establish the homestead right is upon the defendants.</p> <p>Homestead; Mortgages: Husband arid wife : Parties. A mortgage executed by the husband alone upon a homestead is void, not only as to the wife, but also as to the husband.</p> <p>Homestead: Mortgages: Parties: Husband and wife. A homestead mortgage which is void in its inception by reason of its not being executed by the mortgagor's wife, will not be made valid by a subsequent conveyance by the mortgagor and wife to a third person, though the property should cease to be a homestead.</p>

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

<p>Appeal in Chancery from St. Joseph circuit.</p>

<p>Evidence : Corporations; Statements of directors ; Sales. Statements of individual directors out of session, and not accompanying any official act, and statements made by them in debate while in session, are notgcompetent to prove a completed contract between their corporation and an®individual for the sale of stock by the latter to the former.</p> <p>Corporations: Directors : Besolutions: Sales. The adoption by the board of directors of a resolution that the corporation J¡do purchase of an individual whatever stock the latter holds, at what it had cost him, which does not fix the price, or the time or manner of payment, without^any further action or dealing with such individual on the footing of a trade, does not constitute such an overtnre for a purchase as will authorize the proposed vendor upon a tender of his stock to the corporation, to recover the price as on a completed sale.</p>

<p>Insurance: Silver forks and spoons: Plate. Silver forks and tea and table spoons are not included in the term. “plate" so as to be excluded from a policy of insurance by a clause excluding “money, bullion, jewels, plate and watches ” unless particularly specified.</p> <p>Insurance: Proofs of loss: Fraud: Mistake: Good faith. Where one who has with full knowledge made a claim under oath for a loss which has not been sustained, and presented it for payment, proposes to show that this was done without any intent to defraud the party from whom payment was sought, the evidence offered for the purpose must have a clear tendency to show good faith.</p> <p>Proofs of loss: Directions of agent of insurers: Evidence. And one who has. thus included in proofs of loss under an insurance policy property he had shipped away and which he knew had not been destroyed, does not excuse the act by showing that the proofs were made out by the agent of the insurer, who directed him to put into the proofs all he had, as there was a deduction to be made by the company any way, and that on his suggesting that he wished to correct the proofs, that he had articles not mentioned in them which he wished to mention, such agent had replied, “It will be ‘time when you make the deduction to fix that all right;11 such evidence, in the absence of any showing that the agent knew any such property had been sent away, has no tendency to prove that he directed the insured to put the same into the proofs.</p> <p>Proof8 of loss: False statement: Directions of agent of insurers: Good faith.. Whether or not the fact that the agent of the insurer directed the insured to, include in the proofs articles which had not been destroyed wonld under any circnmstances excuse the insured for so doing, it certainly would not in a case-where the showing was not clear that he followed such advice innocently and without intent to defraud.</p>

<p>Application for mandamus.</p>

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

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

<p>Set-off: Parties. There can be no set-off between claims where the debtor on one side is not the creditor on the other side, nominally or really.</p> <p>Set-off: Mortgages: Parties: Husband and wife. A claim against a complainant by a married woman defendant for a liability as surety with other persons, belonging to the married woman and others, cannot be set-off against a mortgage given by her husband and herself to secure a debt of the husband on his property.</p> <p>Equity jurisprudence: Vague equities: Recognized rules. Courts of equity have no power to enforce any vague equities which involve no rights or interests protected by the recognized rules of justice.</p> <p>Set-off: Equity jurisprudence. Upon ordinary debts the rules of set-off are alike, both, at law and in equity.</p>

<p>Application for mandamus.</p>

<p>Promissory notes: Payee: Indorsement. Where the maker has procured one who was second indorser upon a note about to mature, to indorse another note intended to be used in renewal, upon a promise that he would at once procure the indorsement as first indorser, of the payee to whose order the note was payable and who had not at the time indorsed the same, and that he would not make use of the same without first procuring such indorsement, one who takes the note of the maker while it is in that condition and carries it in the same shape until due cannot hold such indorser.</p> <p>Promissory notes: Indorser: Indorsee. No one can sustain the character or relation oi indorser to a note except there be some one in being possessing the correlative relation or character of indorsee.</p> <p>Promissory notes: Bona Jide purchaser. One who takes a note in that shape is not entitled to be considered a bona fide purchaser, but takes it subject to the equities growing out of the condition upon which such indorsement was procured as between such indorser and the maker.</p> <p>Promissory notes: Indorsement. The procurement of the indorsement of the payee after the note fell due and after steps had been taken to charge such other indo.rser, was of no legal avail to affect the liability of the latter.</p>

<p>Fraudulent sales : Value: Evidence: Bes gestee: Probabilities. Where an action is brought for fraud in misrepresenting the character and value of a note and mortgage, which were received in exchange for personal property, it is admissible to prove the value of the chattels, both to show the extent of the fraud, and as part of the res gestee, to throw light on the probabilities of the whole transaction.</p> <p>Evidence: Values: Opinions: Farmers. Opinions as to the value of land may be given by farmers, though not residents of the immediate vicinity, if they have examined it and made the usual inquiries to inform themselves.</p> <p>Variance: Objection; Bequest to charge: Practice. Where a defendant does not object to variance in plaintiff’s proof until he has completed his own testimony, and the case has been summed up, and then for the first time requests a charge upon it, the objection will not be sustained where the whole transactions have been sworn to by the parties themselvés, and it is clear the defendant has not been misled or injured by the variance. — -McECardy v. Wadsworth. 8 Mich., 81*9.</p> <p>False representations: Fraud: Knowledge of the. falsify of the representations. A man is liable for false ■ representations made intentionally to induce, and which do induce action in reliance upon them; and it is fraud if he believes, or has reason to believe them false, whether he knows them to be false or not].</p>

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

Appeal in Chancery from Saginaw Circuit. This was a foreclosure bill which was filed March 1,1870. The subpoena was returned personally served on the defendant, March 12, 1870. The defendant did not appear. Complainant’s solicitor having died, another was substituted as his solicitor.

<p>Settlement: Jumping accounts: Receipt. A settlement between parties by “jumping accounts,” and receipting accordingly, does not of itself and without evidence that such was the intent, include items for money afterwards paid by one on account of claims against them jointly, notwithstanding such claims originally accrued before the settlement.</p> <p>Statute of frauds. Whether, under the statute of frauds, the contract required to be in writing is not to be treated as one entire contract, so that all the stipulations of both parties are required to be in writing:— Quaeref</p> <p>Statute of frauds: Consideration: Executory promises. Our statute {Comp. Z., § U702) dispensing with the necessity of expressing in any contract required to be in writing the consideration thereof, and permitting proof of such consideration by any other legal evidence, it seems would not apply to a case where the consideration consisted of counter promises or executory stipulations to be performed more than a year after the making of the contract.</p> <p>Statute of frauds: Consideration : Performance on one side. The doctrine that a parol contract capable of performance on one side within the year, especially where performed on that side within the year, is not within the statute of frauds, notwithstanding the other party was not to perform within a year, is criticised.</p> <p>Statute of frauds : Contract performed on one side: Common counts. But where the contract has been executed by one party and the other has received the consideration and its benefit, the former can maintain an action against the latter for the benefit thus conferred, and accepted and appropriated; not, however, upon the contract, but upon the appropriate common counts in assumpsit.</p> <p>Contracts: Statute of frauds / Agreement to be performed at end of three years. A contract that, in consideration that the plaintiff would procure the defendant to be admitted as a partner in a joint'venture with one-fourth interest therein, and in the business to be carried on and the profits to he made by it, the latter would, at the end of three years, pay whatever the business, as then developed, would show the said one-fourth was fairly worth when the contract was entered into, is within the statute of frauds, and no action can be maintained upon it unless made in writing.</p> <p>Statute of frauds : Evidence : Contract: Value: Consideration received. In an action upon the common counts to recover back the value of the consideration paid and received and appropriated upon such a contract void under the statute of frauds, the contract may be referred to for the purpose of showing the equitable circumstances under which the consideration was received, to reduce the value; but it cannot be made use of by the plaintiff to aid him in recovering beyond the real value of such consideration.</p> <p>Associations: Incorporation: Evidence. In such an action upon such a contract it would he unnecessary to show that the company engaged in suclijoint venture was an incorporated one; an association or company and the members thereof as such, may acquire and hold property rights without incorporation.</p> <p>Associations: Articles: Incorporation: Corporations de facto: Estoppel. Whether the filing of articles of association with the secretary of state is a necessary prerequisite to the existence of a manufacturing company under our statute; and whether the want of such filing before commencing business is not an objection which can only be raised on behalf of the state; and whether a member participating in the formation and in the business of a company which is a corporation de facto is not estopped from denying its incorporation : — Quaere?</p> <p>Manufacturing companies: Incorporation: Partnership. Persons associating themselves together under articles to purchase property and to carry on a manufacturing business, if their organization be so defective as to come short of creating a corporation within the statute, become in legal effect partners; and their rights, as members of the company, to the property acquired by the company, will be recognized and protected.</p>

<p>Error to Superior Court of Detroit.</p>

<p>Bankruptcy : Assignees' sale : Tr'over : State courts ; Jurisdiction. A purchaser at a sale of a bankrupt’s effects, made by the assignees, may bring trover la the state court on a refusal by the assignees to make delivery, in a case where the bankrupt court has not heen invoked in the matter and has taken no action towards setting aside the sale.</p> <p>Officer of court: Receiver : Assignee in bankruptcy : Sales : Trover. An officer of court having authority to make a sale, a receiver or assignee in bankruptcy, for instance, is liable in trover, if he actually makes a sale and subsequently refuses to deliver the property sold.</p> <p>Assignees'sales: Bankruptcy court: Jurisdiction : State courts. Assuming that the bankruptcy court has power to set aside sales by assignees, an application to that court for that purpose, or an order setting aside the sale, would he a complete defense to snch action of trover.</p> <p>Evidence: Explanations : Leading questions. A party who, on a second trial, has testified as a witness to a fact in his favor, which, it is shown on cross-examination, he did not mention while a witness on the first trial, has a right in explanation to give the reason, on redirect examination, for his failure to testify to such fact on the former trial, and perhaps to state any fact which would support and verify his explanation; but leading questions on the subject are objectionable.</p> <p>Auction sales: Bids : Mistake; Evidence : Bystander. In such an action where the defense is that the assignees misunderstood the price claimed to have been hid at a sale by them at public auction, evidence of a bystander who bid on the same property and other of the same kind, as to his understanding of the price bid by the plaintiff and by witness himself, is competent.</p> <p>Assignees in bankruptcy: Auctioneers; Agency: Auction sales. Assignees in bankrnplcy who have employed an auctioneer to make sale of the assets of the estate and have put him in charge, must he understood as authorizing him to speak for them; and when he accepts a hid and knocks down the property a bargain is closed.</p> <p>Auction sales: Assignees in bankruptcy : Inattention: Mistake. Where, at such a sale, the bids are /understood by the bystanders and by the auctioneer when he accepts them, the fact that the assignees are present and through inattention misapprehend them, does not render the sale ineffectual, and is no excuse for refusing to carry it out.</p>

Appeal in Chancery from Muskegon Circuit. This bill was brought by Andrew Olson and the creditors of the firm of Olson & Jones, to compel the defendánt to pay suoli creditors the amount of their claims, and to have the same decreed to be an equitable lien upon certain property purchased by the defendant of said Olson and formerly belonging to Olson & Jones, and to enjoin the defendant from conveying or incumbering the property.

<p>Assignments for benefit of creditors : Assignees: Reasonable diligence: Culpable negligence. The assignees of a failing debtor, under an assignment for the benefit of creditors, are bound to use reasonable diligence in attending to and closing up the trust; and they are liable for any damage resulting from culpable negligence.</p> <p>Assignees; Assignor : Fraud: Collusion. Such assignees may entrust the chief control of the business to the assignor, where it is done without fraud or collusion, under the honest belief that such is the best course to get the "value of the assets.</p> <p>Culpable delay: Payments: Interest. Under the circumstances of this case, where most of the property was sold and most of the assets realized In not much more than a year, and the whole, with a few exceptions, in a little over two years, it is held there was no culpable delay; and for any mere delay in payment, interest is in law regarded aB a sufficient compensation.</p> <p>Assignee»: Creditors: Equities. A creditor having knowledge of the assignment, who has failed to call the attention of the assignees to his rights, or to object to their course, has no peculiar equities to complain of their action in treating his claim as uupreferred, where they have acted honestly upon information, that the claim had been placed in the list of preferred debts by mistake.</p> <p>Assignees: Lands misappropriated : Value: Auction biddings. Where certain lands, in which an undivided half interest belonged to the trust under the assignmeut, have been put up at auction after full notice, and the assignor9 in order to have the whole sold, has purchased upon his individual uote the other undivided half, and the lands, after being bid off at the auction sale, have been conveyed to unpreferred creditors, in consideration of their releasing their debts, and the assignees charge themselves with the half of the purchase hid, their action will uot be held culpable, in the absence of any showing of the real value of the lands, or that there was improper management, upon mere inferences to be drawn from a comparison of the amount of the auction price with that of the assignor’s note, given for the other half, or with that of the debts released; the assignees could only be justly charged with the real valne of the lands, and this will not be presumed, without evidence, to have exceeded the auction biddings.</p> <p>Assignees: Storing goods : Insurance: Negligence. The storing of the unsold remnant of goods in a warehouse without insurance, awaiting an advantageous sale, is held, under the circumstances of this case, not culpable negligence, such as to justify charging the assignees with the value of such goods upon their destruction by fire.</p>

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

<p>(Jase made: Practice; Evidence. On case made after judgment on a trial and findings by the court, where it appears that evidence bearing on the turning point of the merits, and adapted to influence the findings in respect to a vital part, was improperly admitted against objection, the judgment will be reversed and a new trial ordered.</p> <p>Case made : Practice: Questions of fact. The office of a case made under our statute is no broader than that of a writ of error and bill of exceptions; , and it cannot be made available to secure a review of questions of fact.</p> <p>Case made: Practice; Evidence: Finding of facts. Objections that there, was no evidence tending to support certain specified findings will not authorize .ft review on case made of the conclusions of fact of the trial court upon ambiguous and conflicting oral testimony.</p> <p>finding of facts: Declaration. A statement in the finding of facts that the declaration averred the defendants to be a foreign corporation has no legal importance, and an exception to it as untrue raises no question of-law; the pleading cannot he changed by thus imputing to it something it has not.</p> <p>finding of facts: Incorporation : Immaterial matter. Under a declaration charging the defendants as a foreign company doing business in this state, without averring whether they were incorporated or not, where the making of the contract counted upon, and the fact that they were a foreign company doing business here, are in effect admitted on the trial, and the right to recover is in no way made to hinge at all upon the fact of incorporation, a finding that the defendants were a foreign corporation, thongh unsupported by any evidence, is immaterial.</p> <p>Practice: formal proofs : Waiver: Concessions. 'Where parties have seeu fit. to waive formal proofs, and to confine the controversy to the vital points in the case, and this course has been fairly pursued through the whole trial, objections which do not go clearly beyond the scope of such concessions and waiver, will not be considered.</p>

<p>Piparían rights : Use of water : Priority of appropriation. As between riparian proprietors, priority of appropriation of the waters of a running stream which is common to all for the driving of machinery, gives one no superior right unless it has been continued for such a period of time, and under such circumstances as would be requisite to establish rights by prescription.</p> <p>Piparían proprietors: Use of the water: Diversion, The question as between such proprietors, of the wrongful detention of the flowing waters, to the prejudice and injury of proprietors below, is essentially different from that of the diversion of the stream from its natural course so ás to turn it away from the lower proprietor, or from that of an interference by a stranger in any way to diminish the water: for these acts are wholly wrongful.</p> <p>Piparían proprietors: Reasonable use: Common rights. Such proprietors have an equal right to the use of the water, and the right of each qualifies that of all the others ; the question as between them is whether the use made of the water by one is reasonable and consistent with a correspondent use by the rest. A fair participation and a reasonable use by each is what the law seeks to protect, and an injury that is incidental to a reasonable enjoyment of the common right can demand no redress.</p> <p>Common right: Reasonable use: General usage: Evidence. ’The general usage of the country in similar cases is competent evidence of what is a reasonable and proper use of a common right.</p>

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

<p>Contract construed: Grading: Embankment: Excavation: Measurement. The contract in this case, for grading and preparing for ties the bed of a railroad, is held to contemplate, as a general rule, that the road-bed will be an embankment made by earth thrown up trom ditches on either side ; bat that the “cuttings on the line of the road” referred to, are not these ditches, but the cuitings necessary in places where the natural surface was higher than the level of the road, and to be brought to grade, required to be cut down ; and that all earth thrown into embankments, whether taken from the ditches or from cuttings on the line, should be measured in the embankment, and not as excavation, according to the space it occupied before removed, and that all the earth thrown into spoil banks was to be measured as excavation; and a ruling-that the contractors were to be allowed for all shrinkage of the earth, arising from its beiug thrown into embankments, and measuring less there than it did where it was taken from, is held erroneous.</p> <p>Grading: Embankment: Evidence. A great fire having swept over the line of the road, after the survey and before the contract was made, .and burned away the soil so that it required more earth by way of fills and embankment than was shown by the profile and table of cuts and fills, made by the engineer before the fire, it was not error to permit the jury to take this fact into account in determining the amount of work done under the contract.</p> <p>Contract construed. A provision of the contract that the contractors shall “proceed with such diligence and with such force of laborers as the executive committee of said company may direct, to perform the work,” etc., is held to be subordinate to, and qualified by the provision directly following it, requiring the work to be completed by a day named, and to be intended to enable the company to compel completion by the day specified. ■</p> <p>Contracts: Breaches: Default inpayment: Abandonment: Damages. Continued and repeated defaults in payment according to the previsions of the contract, are held to have justified the contractors in abandoning the work before its completion; and to entitle them to recover a6 damages what the* uncompleted portion of the work would amount to, at the contract price, beyond the cost to them of completing it.</p> <p>Delay: Default: Extra compensation: Increased cost of worTc. But failure to pay monthly, as agreed, would not of itself, and in the absence of any showing that any delay was authorized by the company, entitle the contractors to recover extra compensation for the labor performed, on account of the delay occasioned by such default in payment, and lhe consequent increased cost of the work.</p> <p>Agency: Authority: Directions. Where, however, such delay was occasioned by a decrease of the force of men employed, at the request of the treasurer of the company, who was one of the committee that had executed the contract on its behalf, and the only one of them who had given any personal attention to the work or directi >ds to the contractors, and upon his statement that the company were unable to collect money fast enough to pay according to 1he contract, the . contractors would have a right to assume, in the absence of any notice to the contrary, that he was authorized to give such directions, and they were justified in acting accordingly.</p>

<p>Information in the nature of a quo warranto.</p>

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

Proceedings on habeas corpus. The return of Miron Bunnell, sheriff of Bay county, to the writ of habeas corpus, sets forth that the prisoner was held in custody by virtue of a commitment issued by Russell D. Black, justice of the peace for Tuscola county, in an action of debt, brought and prosecuted in the name of the people on the complaint of Benjamin A. Wood, “for the third offense for selling spirituous or intoxicating liquors,” etc., in violation of section three of the…

Proceedings on habeas corpus. The return to the writ sets up that the prisoner was convicted before a justice of the peace of Manistee county, under a complaint and declaration for a third conviction of selling and keeping for sale spirituous or intoxicating liquors in violation of the prohibitory liquor law, and was sentenced to forfeit and pay the sum of one hundred dollars and costs of suit (taxed at four dollars and fifty cents) and to be imprisoned in the Detroit House…

<p>Articles of partnership: Partners: Infants. Articles of partnership purporting to he between the complainant on the one part and defendant and a minor brother on the other, but which were executed only by the two, are held not to have made the minor brother a partner.</p> <p>Partners: Settlement: Laches. A settlement between partners, which does not appear to have been unfair, will not be disturbed at the instance of one who has not within a reasonable time repudiated its terms nor taken any steps to rescind it.</p> <p>Contribution: Partnership debts: Concurrent remedies : Remedy in equity. A suit for contribution lies as well in equity as at law, and the remedies are at least concurrent; but a suit at law will not lie to enforce contributions towards partnership debts not yet paid; and where a settlement is sought which will embrace the whole debts, paid and unpaid, a bill in equity is the appropriate remedy.</p> <p>Bill in equity: Suit at law : Election of. remedies: Equitable remedy. A law suit pending and not determined is not a bar to a suit in equity upon the same subject; but at a proper stage the court in equity will, if the interests of justice require it, compel an election of remedies; but even then the selection of the equitable remedy is always admissible.</p> <p>Arbitration: Agreement; Judgment. An agreement to submit to arbitration, which contains no covenant or agreement not to sue, or that the award shall be made the foundation of a judgment, is but a common-law arbitration, and enforceable only by action.</p> <p>Agreement to arbitrate : Specific performance: Arbitrators : Suits in court. A mere agreement to arbitrate does not preclude a resort to a court of justice; and it cannot be pleaded in bar. Such agreements will not be specifically enforced, nor will the arbitrators be compelled to act.</p> <p>Award: Statutory arbitration. What force should be given to an award actually made under such an agreement and not impeached for fraud or any other infirmity; and whether a statutory agreement, before the arbitrators have acted, stands on any different basis : — Qucere ?</p> <p>Partners: Contribution: Intoxicating liquors: Prohibitory liquor law. Where articles of partnership contemplate the sale of liquors, and the stock on dissolution contained them, and on settlement one partner has been charged the price of them, and has been authorized to pay certain debts incurred in their purchase, the other partner, when sued for contribution, cannot set up the liquor law in defense of the items paid for such debts.</p> <p>Prohibitory liquor law : Buyer and seller: Estoppel: Agency: Partners. That statute does not go far enough to avoid all dealings not immediately between buyer and seller, or prevent such dealings from being included within grounds of estoppel and agency; and one who has authorized another to pay money on his behalf cannot recall the agency or repudiate the payment after the agent has performed his instructions.</p> <p>Partners : Division of assets: Accounts : Contribution. Where, on a division of partnership assets, one partner has taken certain accounts at their face and been charged with them as moneys he could collect, it is not error, on a subsequent accounting between the partners in equity, to allow such partner for money paid by the debtors during the partnership to the brother of the other partner, and who represented him in the business, which was not credited on the books, and which to that extent reduced the real amount of such accounts below what they appeared to be, and what they were taken at.</p>

<p>Mortgages : Agreement: Discharge : Payment: Charge to the jury. In a suit to recover back moneys deposited under an agreement that they were to be returned upon the discharge of two certain mortgages, a charge to the jury which permitted recovery on proof of payment of the mortgages, notwithstanding one of them was not discharged when the suit was brought, is error; payment cannot be treated as synonymous with discharge in such a contract.</p> <p>Delation, In such a suit the doctrine of relation will not be applied to permit a discharge obtained after the suit was brought, to be referred to the payment which was made before, so as to save the right of action; this doctrine is one for the advancement of justice, and cannot be made use of to put one in default and justify his being mulcted in damages and costs for not doing what at the time he was under no legal obligation to do.</p> <p>Charge to the jury : Inferences: Parties : Failure to testify. The charge in this case is held not open to objection for permitting the jury to draw unfavorable inferences against the defendant from his failure to testify as a witness in explanation of material transactions if they believed them to be within his knowledge.</p>

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

<p>Application for mandamus.</p>

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

<p>Opening streets: Special proceedings: Statute must be followed strictly. Proceedings whereby private property Is taken against the will of the owner, for the purpose of opening a street, being special and adverse, must comply strictly with every provision of the law which is not so purely formal as in no way to bear upon the protection or rights of the parties to be affected.</p> <p>Taking private property: Apportioning public burdens: Assessments. And since by the same course of proceedings the value of the land is determined, and the cost of the improvement is levied against the parties to he charged, the inquiry involves not only those principles governing the taking of private property for public use, but also those bearing on assessments to apportion public burdens.</p> <p>Charter of Grand Rapids; Opening streets: Setting aside report of jury: New jury : Defects in original proceedings. The charter of Grand Rapids provides that in proceedings to open streets, the setting aside of the report of a jury by order of the court, shall not make it necessary to begin back anew, and. allows a new jury to be called on application, without any new notice, either of such application or of the original resolution of the common council; and it follows, therefore, that the consequences of any legal error before the appointment of the first jury attaches to and affects all subsequent steps in the proceeding.</p> <p>Opening streets : Recorder's court of Gi'and Rapids; Jurisdiction : Notice: Proof of service. Under the course of procedure marked out by the charter of Grand Rapids for opening streets, the recorder’s court gets no jurisdiction to act in the absence of legal proof of legal notice to the parties entitled to be heard.</p> <p>Personal notice : Advertised notice. The personal notice, which is required to he served by the marshal, is distinct from the advertised notice, required to he given by the common council, and not by the marshal.</p> <p>Advertised notice : Choice of papers: Common council. The choice of the daily papers in which the resolution is to be published must be made by those who are appointed to give that notice, viz.: the common council.</p> <p>Common council; Written resolution. A common council can act only by written resolution.</p> <p>Notice : Service: Time: Return. The return of the marshal being required to he made at least six days before the day appointed for the hearing, no notice which is required to be included in such return will be valid if made later than six clear days before the day of hearing.</p> <p>Opening streets: Necessity of the improvement: Jury : Common council: Petitioners. In proceedings of this nature the fact of the public necessity of the proposed improvement must be found, and not simply the fact that the particular land is necessary to the carrying out of the proposed improvement; and under our constitution the determination of this necessity must he made by the jury; the action of the common council, in passing upon the policy of opening a street over private property which they cannot obtain without adverse proceedings, is not judicial action, or final; but they stand rather in the position of mere petitioners, and the decision rests with the jury, and not with the city.</p> <p>Constitutional law : Legislative power : Opening streets : Public necessity : Jury : Oath: Due process of law. Heder a constitutional provision so imperative as ours no legislation can be maintained -which does not plainly require this question to be left to tbe jury; tbeir finding, without such requirement, is extrajudicial and not within their oaths, the oath being the measure and limit of their legal action; and property taken under legislation which does not provide expressly for every constitutional safeguard framed to govern such action, cannot be said to be taken by due process of law.</p> <p>Opening streets: Necessity of the improvement: Statutory requirement. A doubt is suggested, whether the provision in the legislation in question in this case, simply leaviug it to the jury to determine “the fiecessity for using the property intended to be taken for such improvement,” does not most naturally convey the idea that they are not to pass upon the necesssity of the improvement itself, and especially in view of the fact that the oath prescribed is not specific, but merely swears the jury generally to “discharge the duties imposed on them by this title,” and is not in any way calculated to help them in ascertaining their duties; Christiancy, J., however, holding that the statute, being as clear and express in its requirement in this regard as the constitutional provision itself, is not open to any imputation of ambiguity in that respect.</p> <p>Special tax : Designating tax distnet. Where the tax is not general, the proper, if not the necessary course, is to define the taxing district in advance; but where, as in this case, such a course could not be resorted to in harmony with the general purposes of the statute, without placing the assessment of damages and of benefits in different hands, to be managed separately, it would not be practicable to adopt it.</p> <p>Charter construed: Resident freeholders : Disinterested jury. Where a charter provides, in case of proceedings to open streets, that the excess, if any, of damages over the benefits, shall be laid on the whole city, and requires the jury to be freeholders resident within the city, the jury cannot be declared legally disinterested, as each freeholder has a direct interest in having the assessment so laid as not to fall on the city at large, since he thereby avoids charging his own land.</p>

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

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

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