Volume 30 — Michigan Reports

<p>Justice's judgment: Certiorari: Reversal: Practice. . Where a justice’s judgment has been reversed in the circuit on certiorari, and the cause is brought up on error, if any of the objections taken to the proceedings before the justice were such as to warrant the judgment of reversal, the plaintiff in error cannot prevail.</p> <p>Irregularities: Collateral attack: Jurisdiction: Evidence. Mere irregularities or errors will not justify the rejection of a collateral judgment offered in evidence ; but to warrant such rejection the defects must be such as to render the judgment jurisdictionally invalid.</p> <p>Garnishee proceedings: Judgment: Waiver: Jurisdiction. Where, after judgment against the principal defendant, a garnishee defendant, on the return day of the garnishee summons, appears with the plaintiff before the justice and makes and subscribes on the docket a statement that he is indebted in a specified sum to the principal defendant, and authorizes the justice to enter judgment against him, the judgment against such garnishee, entered at once on the footing of such statement, is held not invalid for want of declaration, second process, and proofs; such garnishee defendant, by taking this course, in effect waives declaration, second process and proofs, and precludes himself from asserting in a collateral suit that the judgment is void for want of them.</p> <p>Irregularities: Jurisdiction: Judgment. The fact that the judgment in such case slightly exceeded the sum named in the statement of such garnishee defendant, does not render the judgment void; this is something to be set right on error or appeal, and is not a jurisdictional fault.</p> <p>Execution: Renewal. Under our statute {Comp. L., § 5U10) an execution on a justice’s judgment may be renewed, after having been returned unsatisfied, at any time when a new one could be lawfully issued; and the renewed writ will have the same force for sixty days succeeding the renewal, that a new writ would have.</p>

<p>Fraud: Agency: Sale of lands: Title: Evidence. When fraud is charged on an agent and made to depend on his management of a sale of lands, the condition of the title to the lands, and the agent’s knowledge of its condition, are pertinent subjects of inquiry.</p> <p>Declaration : Variance. Under a count for fraud against the plaintiff alone in such a sale, it is error to allow a recovery for the interest of his brother, from whom he has simply an assignment of the proceeds of sales by such agent.</p> <p>Evidence: Title: Ejectment: Parties: Bes inter alios. An ejectment record in a suit brought by co-heirs of the plaintiff against third parties, and to which the plaintiff was not a party, has no relevancy to prove title in the plaintiff.</p> <p>Evidence: Title: Chancery suit. A chancery record in a suit brought by plaintiff’s ancestor, through whom he claimed title, against third persons, would he relevant, as it established the title of such ancestor as against the defendants-thereto; and the plaintiff, as one of the heirs at law, was entitled to its benefit.</p> <p>Evidence: Chancery record: Attestation. A chancery record from another state,, attested by the clerk and presiding judge in the form required by the act of' congress, is not open to objection for improper attestation because there is-appended an additional clerk’s certificate not inconsistent with the proper one,, but rather corroborative of it; such additional certificate could not vitiate 'the-transcript.</p> <p>Title to lands : Evidence: Abstracts : Stipulation. Mere abstracts of title which are unintelligible vVithout the aid of some proof to explain the meaning of abbreviations and initial letters used in them, introduced in evidence under a stipulation which does not determine what effect shall be given to them, are insufficient of themselves to establish title to lands.</p>

<p>Mortgages: Discharge ; Statutory penalty: Annual interest; Payments : Tender : Computation. Where payments of annual interest upon a mortgage have been received shortly after due, with the understanding between the parties that they should be accepted in full satisfaction of the yearly interest, a subsequent assignee, who purchased after maturity of the mortgage, is held liable to the statutory penalty for refusing to release the mortgage upon a tender of the amount due computed upon that basis, although the tender was insufficient by strict computation, applying^the payments at large.</p>

<p>Auditor General: Refunding tax purchases: Tax titles: Tax purchasers. The auditor general cannót refund any money upon the failure of tax titles except, as some statute requires it; the state does not guarantee tax titles except as statutes may provide for it; and iu all other cases the purchaser must be content with such interests as he gets under his tax purchase.</p> <p>Statute construed : Refunding tax purchases : Judgment annulling •tax title : Ejectment. The act of 1858 (Sess. L. 1858, p. 190, § 103), providing for the refunding of the purchase money and interest in case a tax title had been “annulled pursuant to law,” when a copy of such judgment is presented to the auditor general, does not authorize such repayment in a case where the tax title has merely been introduced in evidence in an ejectment suit and held defective; but the judgment to which it refers is a judgment acting directly upon the title under a proceeding authorized by this statute, analogous to a hill to quiet title; and the system inaugurated by this statute having been held unconstitutional in Waldby v. Callendar, 8 Mich., 430, this section became inoperative.</p> <p>Ejectment: Judgment. A single judgment in ejectment is not necessarily final for any purpose.</p> <p>Statute construed: Refunding tax purchases. Under tbe act of 1868(Sess. L. 186$, p. 196), the purchaser’s right to re-imbursement only arises where either (1) the land was not subject to taxation at all, or (2) the taxes had been actually paid in dae time, or (8) a certificate had been given in due time by the proper officer that no taxes were charged on the land; and does not apply to a case where the land was subject to taxation, and taxes have been actually assessed, even though irregularly and illegally, and no attempt has been made to asccr- * tain and pay them.</p> <p>Local taxing officers: Irregularities: Tax purchasers. Under our statute the state does not assume any responsibility for irregular conduct on the part of the local taxing officers; and the tax purchaser has the same means of ascertaining the legality of the tax, that are possessed by any of the state authorities.</p>

<p>Criminal cases: Sill of exceptions: Evidence. While It is not desirable to introduce all the testimony into a bill of exceptions in a criminal case, it is important to indicate in some way the whole chain of facts which the evidence tends to prove, so that the relations of all the rulings may be fully appreciated.</p> <p>Manslaughter: Murder: Intended injury. The distinction between manslaughter and murder is a vital one, resting chiefly on the greater disregard of human life shown in the higher crime; and in determining whether an unintentional killing is murder or manslaughter the nature and extent of the injury or wrong actually intended must usually be of controlling importance.</p> <p>Murder: Intent. To constitute murder the intent need not be to take the life of the person killed, or even to inflict a personal injury upon him, but it must be equivalent in legal character to a criminal purpose aimed against life; and generally there must be an intent to commit either a specific felony, or at least an act involving all the wickedness of a felony; and if the intent be directly to produce a bodily injury, it must be such an injury as may be expected to involve serious consequences, either periling life or leading to great bodily harm.</p> <p>Murder: Intent: Deadly weapon: Presumption. In general where the assault is not committed with a deadly weapon the intent must be clearly felonious to make the killing constitute murder; and though the presumption arising from the character of the instrument of violence is not conclusive, yet where such weapons are used as do not usually kill, the deadly intent ought to be left in no doubt.</p> <p>Murder: Manslaughter: Intent: Charge to the jury. In this case, where the injury, if inflicted by the defendant, was inflicted either by a blow from the fist or a kick, and where the evidence was not such that the jury could not properly have found a verdict of manslaughter if the question had been left to them, it is held that a charge which instructed them that if the defendant committed the homicide it would be murder, and not manslaughter, unless it was committed under such extreme provocation as is recognized in the authorities as sufficient to reduce intentional and voluntary homicide committed with a deadly weapon to that degree of crime, was erroneous.</p> <p>Homicide: Evidence: Previous relations of prisoner and deceased. The previous relations of the prisoner and the deceased may be shown on a trial for homicide; they may be of more or less importance in explaining conduct and motives.</p> <p>Homicide; Physical strength: Evidence. The physical strength of the respective parties may be shown also, but not by evidence of specific acts, especially where inferences might be drawn unfavorable to the prisoner’s character which would not be relevant to the charge; these inquiries should be general and not leading, and should not, where it can be avoided, introduce irrelevant matter.</p> <p>Homicide: Eye witnesses: Duty of prosecution as to calling witnesses. Incases of homicide, and in other cases where analogous reasons exist, those witnesses who were present at the transaction, or who can give direct evidence on any material branch of it, should always be called by the prosecution, unless, possibly, when too numerous; and the fact that the witness may not be favorable to the prosecution is no excuse for not calling him, though it may authorize the prosecuting attorney when necessary to press him with searching questions*</p> <p>Duties of prosecuting attorney. A public prosecutor is not a plaintiff’s attorney, but a sworn minister of justice, as much, bound to protect tbe innocent as to pursue tbe guilty, and be bas no right to suppress testimony.</p> <p>"Witnesses: Indorsing name on info'mation. Tbe fact that tbe name of a witness is indorsed on the information as one of tbe people’s witnesses does not of itself involve any necessary obligation to do any more than have tbe witness in court ready to be examined.</p>

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

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

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

<p>Insurance: Conditions: Waiver: Agent: Application : Policy: Relation. Whether a condition in a policy of insurance, that there shall be no waiver or evasion of any of its terms or conditions, and that no agent or servant of the insurer has any right or power to waive or to dispense with any of the terms or conditions of linsnrance as printed and contained in the application or in the policy, is not ’to be construed as speaking, as regards terms and conditions contained in the policy alone, from the time when the policy is received, instead of being made to operate by relation from the date of the application, where it does not appear that any conditions other than those named in the application were then brought to the knowledge of the applicant: — Queers?</p> <p>Insurance: Statement of incumbrances: Notice _ to agent. An applicant for insurance under a policy requiring the whole amount of incumbrance on the property to be stated, who has in good faith apprised the agent of the insurer of all the facts regarding a mortgage upon which considerable interest had accrued, has a right to assume, where the agent has prepared the application with a statement of the incumbrance at its original amount in round numbers, that such agent has set forth the amount of the mortgage with such accuracy as was by his principal deemed necessary or important.</p> <p>Insurance: Application: Incumbrances: Notice to agent: Estoppel. An insurance company which has issued its policy upon such an application, with full notice of the facts, and received the applicant’s money under circumstances ■leading him to suppose he was receiving in consideration thereof a valid contract of indemnity, is estopped from afterwards repudiating the contract for such an under-statement of the incumbrance.</p> <p>Policy: Condition : Notice : Reasonable time. Under a policy providing that if any proceedings are had, commenced or taken for the sale of the property without the consent of the company the policy shall from thenceforth be void, the failure of the insured to notify the company*of adverse proceedings against him would not alone operate to defeat the policy until after the lapse of a reasonable time for that purpose, and what would be a reasonable time is a question for the jury.</p> <p>iGeneral conditions: Special cases: Proceedings for sale. A provision of a policy which is part of the printed form, designed to be sufficientlj1, general in its conditions to answer in all caseg, cannot be supposed to have had special and exceptional cases particularly in view; and it is at least doubtful whether the condition in question, against proceedings for sale, being part of the general form of policy, was intended to apply at all to adverse proceedings against the insured.</p> <p>Proceedings for sale: Advertisement: Efforts to find purchaser. Whether such a condition, as applied to steps to be taken by tjhe insured himself, would include a mere advertisement or offer to make a sale in the future, or a mere effort to find a purchaser, or would be limited, — the contract being one drawn by the insurer, — strictly to the entering upon the final consummation of a sale:— Quaere?</p> <p>Policy: Condition ; Proceedings for sale: Intent. Where insurance is taken upon such condition on property covered by an overdue mortgage of which the insurer has notice, the mere commencement of adverse foreclosure proceedings will not be held to annul the policy where such an .intent is not most clearly -expressed in the language of the -condition.</p> <p>Policy; Condition construed: Proceedings for sale. Under a policy providing-generally that if any proceedings for sale of the property insured be 44had, commenced or taken ” the policy shall be rendered void, the words of such condition are held satisfied, under the circumstances of this case, when applied to the foreclosure of a mortgage by advertisement, by confining them to the actual offer of the premises for sale at the time specified in the notice.</p>

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

<p>Delivery: Acceptance: Replevin: Demand. Where parties have entered into an oral agreement for the sale of lumber to an amount within the statute of frauds, and the vendor, having placed the lumber on the vendee’s premises, insists that the latter shall take it at his inspection, and the vendee declines to accept it except on a different inspection, the vendor is not entitled to bring replevin for the lumber until after a refusal by the vendee on reasonable demand to permit him to remove ifi; the property having been voluntarily put on the vendee’s premises by the vendor’s procurement and consent, the former cannot be made a wrong-doer in regard to it by simply permitting it to remain there.</p> <p>Replevin: Possession: Demand. Where demand is necessary before bringing replevin, a demand made by the officer after the issuing of the writ and while he has it in his possession ready for service, is insufficient under our statutes, which expressly require an affidavit to be made after the cause of action has accrued.</p> <p>Replevin: Special interest: Demand: Judgment: Damages. Where the proofs in replevin show clearly and without contradiction that the defendant, if in possession, was a possessor without any valuable interest in the property, but yet require judgment in his favor for want of a proper demand, he can recover, under our statute {Comp. D., §§ 615k, 6759), no damages beyond his.special interest, which would be merely nominal; and a judgment for damages for the full value of the property is erroneous.</p>

<p>Superior court of Detroit: Statute construed: 'Special bail: Transfer of causes. Under the act establishing the superior court of Detroit (Laws of 1873, p. 67, § 31) a plaintiff who transferred his cause pending in the Wayne circuit court to the superior court of Detroit, is held to have thereby released the special bail, by recognizance in the usual form, before given to the action in the circuit court.</p> <p>Special bail: Suretyship. The obligations of special bail are in the nature of those of sureties, always and properly recognized as being strictissimi juris, and discharged by any thing which affects in any manner the nature and extent of their contract in such manner as might by any reasonable probability increase their risk or liability.</p> <p>Statute construed: Legislative intent: Attachment lien: Special bail. The fact that the statute makes express provision for preserving the lien of an attachment in cases transferred, and makes none for preserving the obligation of special bail, has some force as indicating an intent that the transfer should operate to discharge such bail, for it is evidence of a legislative opinion that without such express provision the lien of the attachment would not, or at least might not, continue; and from the nature of the case there is quite as strong, if not much stronger ground for supposing that the obligation of bail would not accompany the transfer without a similar express provision.</p> <p>Superior court act: Transfer of causes: Belease of special bail: Legislative intent. But the provision of the statute requiring the defendant, before he can procure a transfer on his application, to give security in the circuit for his entering special bail in the superior court after the transfer, indicates a clear legislative understanding and intent that the obligation of such bail originally given in the circuit Bhould not accompany the transfer to the superior court.</p> <p>Statute construed: Natural meaning of language: Legislative intent. The general provision of the statute that “ any bail that shall originally have been taken shall be discharged,” was intended for all cases transferred, whether on the application of the plaintiff or of the defendant; such is the plain, natural and direct meaning of the language used, and this meaning so far from leading to any thing unreasonable or absurd, — which alone would justify a departure from such meaning, — is entirely harmonious with what otherwise appears to have been the legislative intent.</p>

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

<p>Mortgages: Irregular foreclosure: Attorney fee : Tender: Statutory penalty, A mortgagee, after an irregular attempt to foreclose by advertisement, where his notice was imperfect and was withdrawn after a single publication, is not entitled to demand the attorney fee provided for in the mortgage in case of foreclosure; and where he declined a tender of the full amount due because such attorney fee was not paid in addition, and refused to execute a discharge of the mortgage, he was properly held liable to the statutory penalty.</p>

<p>Mortgages: Bond: Due-bill: Substitution: Parol agreement: Proofs. Where, in place of part of a bond secured by mortgage, for the payment of one thousand five hundred dollars in three yearly payments to a third person after the death of the mortgagee, a due-bill of the mortgagor, payable to the mortgagee, at a different date, is substituted by parol arrangement some time after the giving of the mortgage, the lien qf the mortgage will not be held to cover such due-bill, in the absence at least of a clear showing that such was the agreement when the exchange was effected.</p>

<p>Wnion school districts: High schools: Taxation: Instruction: English language. The right of school authorities in union school districts of this state to levy taxes upon the general public for the support of high schools, and by such taxation to make free the instruction of children in other languages than the English, is sustained.</p> <p>School district: Organization: User: Acquiescence: Collateral attack. A school district which has assnmed to possess and exercise all the rights and franchises of a regularly organized corporation for thirteen years, with entire acquiescence of everybody, is not liable to have the regularity of its organization, ©r of the legislation under which it acted, called in question thereafter in a merely private and collateral suit.</p> <p>School districts: Organization: Statute of limitations. Whether or not the statute of limitations {Comp. L.t § $$91) applies in terms to this case, where it is not so much the organization of the school district that is questioned, as its authority to establish a high school and levy taxes therefor, it is strictly applicable in principle.</p> <p>Union school districts : Organization : User: Acquiescence: Presumptions. The organization claimed and asserted by the district being that of a union school district, the presumption of organization arising from its user of corporate powers must be that of such an organization as its user indicates; and whether or not an acquiescence for the statutory period of two years will raise the presumption of regular organization, one of thirteen years certainly will.</p> <p>State policy: Education: Primary schools: Grade of instruction: Classics: Foreign languages. The state policy of Michigan on the subject of education, and of tbe territory before the state was organized, beginning in 1817 and con-tinning down nntil after the adoption of the present constitution, is reviewed and considered, and the conclusion reached that there is nothing, either in our state policy, or in our constitution, or in our laws, restricting the primary school districts of the state in the branches of knowledge which their officers may cause to be taught, or the grade of instruction that may be given, if the voters of the district consent in regular form to bear the expense and raise the taxes for the purpose, or to prevent instruction in the classics and living modern languages in these schools.</p> <p>Superintendent: Appointment: District board. The power to make the appointment of a superintendent of schools in a union school district is one that is incident to the full control which by law the district board has over the schools of the district.</p> <p>Dill to enjoin collection of school taxes: High school: Superintendent. The decree below, dismissing the bill filed in this case to restrain the collection of such portion of the school taxes assessed against the complainants for the year 1872 as have been voted for the support of the high school in the village of Kalamazoo and for the payment of the salary of the superintendent, is affirmed.</p>

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

<p>Error to Van Burén Circuit.</p>

The special finding of the circuit judge, referred to in the opinion was as follows: “In this cause the plaintiff brings ejectment to recover the undivided two-thirds of the northwest quarter of the northwest quarter of section twenty-one, town four south, of range three west, in the county of Jackson, of which undivided two-thirds interest the plaintiff claims to be the owner in fee.

The relator commenced a suit before a justice of the peace, against one Francis W. Fifield, by short summons, and it was not stated in the summons that either 'party was a non-resident of the county. On the return day the justice, on the defendant’s motion, dismissed the suit for want of jurisdiction for this alleged defect in the summons.

The relator is treasurer of the hoard of school inspectors of the township of Hamtramck, in Wayne county, and as. such made a general demand of the respondent, who is township treasurer of said township, for library moneys. in bis hands belonging to tbe township, which was refused. This general demand was then withdrawn, and a specific order was drawn on him by tbe hoard of inspectors for the amount supposed by them to be in respondent’s hands.

Clair Circuit. Cole sued Morrison on the common counts in assumpsit. The cause was tried by the court without a jury, and a special finding was filed.

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

<p>Assignment: Personal decree: Failure of consideration: Refunding purchase price. One who had sold and assigned, as a decree, the personal residue of the decree in a foreclosure suit, after sale of the mortgaged premises for less than the amount adjudged to be due, together with a note secured by the mortgage, but not yet due and not included in the decree, is held not liable to • refund the purchase price received by him, on the ground of a total failure of consideration by reason of such personal decree being invalid for failure of personal service; while such assignment would not transfer any valid decree, because there was none to transfer, it would transfer tlie mortgage debt with authority to enforce it by all appropriate remedies, and also the note; and the failure of consideration, if any, was only partial, and not total. — Christianoy J., dissenting.</p>

<p>Constitutional law: Trial by jury: Criminal cases: Justice's courts. The provision of out constitution (Art. VI. t § 27), preserving the right of trial by jury, does not preclude a trial by the justice without a jury in criminal cases triable before a justice of the peace, where the defendant expressly so elects.</p> <p>Justice's courts: Assault and battery: Jury trial: Election to be tried without a jury: Constitutional law. The trial of a defendant by a justice without a jury, upon a criminal complaint for a simple assault and battery, where the defendant, after having pleaded not guilty, on being asked by the justice if he wished a trial by a jury, declared that he did not, and submitted to a trial without calling for a jury, is held not a violation of the defendant’s constitutional rights.</p> <p>Constitutional law: Jury trial: Implied waiver: Justice's courts. The constitutional provision, it seems, does not authorize any implied waiver of a jury in criminal cases, from the silence of a defendant, or his mere failure to demand a. jury, notwithstanding the statute concerning criminal proceedings before justices (Comp L§ 5580) authorizes the justice to proceed to try the issue and determine the case “if no jury be demanded.”</p>

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

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

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

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

<p>Evidence: Borrowed money: Payment to third person. Ia aa action to recover back money loaned, where the plaintiff’s testimony was that she personally procured-the money from one -to whom it had before been loaned on a promissory note,, and loaned it to defendant, and the defendant’s testimony was that he dealt exclusively with plaintiff’s daughter, from whom he procured said note with plaintiff’s endorsement upon it, and collected the money, under an arrangement with such daughter to borrow the money of her, the exclusion of evidence that defendant had used the fund so received by him for the benefit 1 of such daughter, is held not erroneous.</p> <p>Bequests to charge : Hypothesis: Evidence. A request to charge in such case, -that if the money belonged to plaintiff, but she gave it to defendant to be applied for tbe benefit of her daughter in any way, and it was so applied, the plaintiff could not recover, is held inappropriate to the case, inasmuch as it is based upon an hypothesis which is not supported by the evidence on either side. Bequests to charge: Assumed state of facts. The refusal of a request to charge which is based upon an assumption which'is. repugnant to the grounds taken by either party, as displayed by their proofs, is not error.</p>

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

Plaintiff in error (who was sued in this case in the Wayne circuit) signed with C. H. White, the following note: “$3,000.

Appeals in Chancery from St. Clair Circuit. Three cases between the same parties, and resting upon the same facts, were heard and decided together.

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

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

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

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

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

The connection in which the word occurred in the policy of insurance, upon the construction of which this suit turned, was this: “The said buildings herein insured are more than six [oix] rods from any other buildings,” etc.

<p>Bguily pleading and practice: Decree: Enrollment: De-examination: BUI of review. After the enrollment of a decree upon default after appearance, It is subject to be opened for re-examination only on bill of review; and an order setting aside such a decree, and dismissing the bill for a demurrable defect, upon a petition filed in the original cause,, is held irregular and erroneous.</p> <p>Mortgage foreclosure: Lands deeded by way of security. "Whether the statute {Comp. L§ 5152), as to proceedings in chancery to foreclose a mortgage where a judgment at law has been obtained for the money secured by it, applies to the case of a bill to foreclose the defendant’s equity of redemption in lands which had been conveyed to complainants by warranty deed by way of security t — Qucere?</p>

Appeal in Chancery from Lapeer Circuit. This was a bill for divorce brought by the husband, on which a decree for complainant was rendered in the court below. Within a short time after the decree the complainant died, leaving a considerable estate.

*Forbes brought bis action of assumpsit against the company before a justice, and the defendant not appearing on the trial, recovered judgment, which was taken by appeal to the circuit court of Hillsdale county.

<p>Finding of facts: Evidence. The finding of the circuit judge upon the facts, where the case has been tried by the court without a jury, is conclusive where there is any evidence to support it; and the weight of the evidence will not be considered on error.</p> <p>Unrecorded deed: Notice:' Bona fide purchaser. One who has notice of a prior •unrecorded deed is not at liberty to rely, without further inquiry, upon a search of the records, and the fact that no such deed is found recorded; and one who purchases with such notice, and upon such search, is not entitled to be considered a bona fide purchaser. ' Barnard v? Campan, 29 Mich., 162, affords no support to a contrary doctrine.</p>

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

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

<p>Sales: Delivery: Measurement; Separation; Title. An agreement for the sale of two hundred cords of hard wood at a specified price, to he taken out of the first six tiers, and so much as should he required of the seventh tier, of a pile of three hundred and fifty or four hundred cords of hard and soft wood piled together, with the soft wood scattered all through the piles, to he removed by the purchaser, and to he measured as taken and the soft wood thrown out, is held not to constitute a completed sale or to transfer the title to any specific portion of said wood, so as to authorize the vendor to recover the purchase price upon the destruction of the wood hy fire.</p>

<p>Towing logs: Delivery: Negligence: -Charge to the jury. In an action to recover the price of towing under an agreement to tow logs and deliver them at a named mill, whore the defense is set lip that through the negligence of the plaintiffs in fastening a raft outside the mill boom, instead of delivering the same safely within the mill boom, a storm which arose broke up the raft and carried away some of the logs, a charge to the jury that if, when the plaintiffs arrived with the tug and raft, the boom was not in a condition to be entered, and it was apparent that in five or six hours, or some other reasonable time, an entrance would be practicable, it was their duty to remain there for such time, unless, on consultation with those in charge of the boom, their earlier departure was assented to, is held under the circumstances of this case to be erroneous, in that it attributed to the plaintiffs a distinct, separate, and imperative duty, and wholly ignores the existence of any concurrent duty of the defendant or those who were to receive for him.</p> <p>Negligence: Charge to the jury. The fact that in connection with such charge it was suggested by the court that the tug, by waiting, would have been entitled to advance a claim in the nature of demurrage, whether such suggestion be correct or not, could have no effect to cure the error committed in giving the charge, since if the supposed duty to wait rested with imperative force on the plaintiffs, then their violation of that duty rendered them liable, irrespective of the question whether they would or would not, by remaining, have founded a claim in the nature of demurrage.</p> <p>Towing logs: Delivery: Contract construed: Diligence: Concurrent duties of the parties. The very nature of the contract between the parties presupposed at least that due diligence would be exerted to assure and afford accommodations and facilities for depositing the logs inside the boom within a reasonable time, and without unreasonable risks, and imposed the duty on the defendant of furnishing, so far as the weather would fairly permit, such instruments and agencies at the boom, and providing for their use there with such reasonable skill, care, and diligence as would enable the plaintiffs, with equal skill, care, and diligence, to do their part in bringing about the delivery agreed upon.</p> <p>Towing logs: Delivery : Diligence. In the absence of any specific stipulations in the agreement as to the exact course to be taken by the respective parties on the arrival of the raft, or of any showing of usage on the subject, the transaction was necessarily to be explained by attributing to each party just that kind and range of duties rendered appropriate and reasonable by the positions of the parties, the nature of the business, and the special facts.</p>

<p>Drains: Record: Petition: Signers. The record of proceedings to deepen and widen a ditch, where the action is not taken for sanitary reasons only, which does not in any way make it appear that the signers of the application to the drain commissioner were a majority of the resident owners of the lands through or intp which the drain was proposed to be constructed, is fatally defective.</p> <p>Recitals construed. The recital in a subsequent paper presented to the commis. sioner, as a waiver of a jury to assess damages, etc., which is signed by nearly all the same persons who signed the original application, and by some others, that the signers to such waiver are a majority of the resident owners of the property affected by the said drain, does not cure such defect, for other property is usually affected by a drain, besides that into or through which it ex- . tends.</p> <p>Record: Jurisdictional facts: Knowledge of commissioner. If it be admissible at all for the commissioner to act upon his own knowledge of the facts in this regard, it is nevertheless essential that the record should in some manner show that he possessed the requisite knowledge to justify his action.</p> <p>Drains: Record: Jurisdiction. The record of such proceedings must be complete in itself, and all jurisdictional facts must appear on the face of it.</p> <p>Jurisdiction: Assertions of fact: Return to certiorari. Assertions of fact in the return, of the commissioner to a writ of certiorari to bring up such proceedings for review, cannot be made to cure defects in his record.</p> <p>Petition to have ditch cleaned out: Deepening and widening ditches. Proceedings to widen and deepen a ditch are not authorized by a petition to have the ditch cleaned out.</p> <p>Delay. A delay of ten months in suing out certiorari to review such proceedings,, where the plaintiff in certiorari did not participate in the proceedings, and in the absence of any showing that he had knowledge of them, is held not fatal.</p> <p>Constructive notice: Proceedings without jurisdiction. Where such proceedings, are according to law, parties interested are bound by constructive notice of them; but there can be no constructive notice where there is no jurisdiction.</p>

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

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

* The plaintiff below (who is plaintiff in error) brought his action against the school district upon a contract, alleging it to be a contract of the district, of which the following is a copy: “ It is hereby contracted between M. A. Patrick, of district No. 2, fractional, in the township of Cannon, county of Kent, and state of Michigan, and Franklin Everett, a legally qualified teacher in said township, that the said Franklin Everett shall teach the primary school of said…

<p>Case made from Eecorder’s court of Grand Eapids.</p>

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

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

Motion to dismiss case made after judgment. This case was commenced before á justice and carried to the circuit by appeal, where judgment was rendered January 3, 1874.- On June 1, 1874, the circuit judge settled a case.

The purpose of this application is to require the circuit judge to sign a bill of exceptions to bring up for review, on writ of error, proceedings on habeas corpus had before him at chambers.

<p>Partners : Individual account: Partnership liability". Where two firms have dealt ■with each other, and each firm has dealt with the members of the other, under an understanding and agreement of the firms and all the members, that the individual account of any partner with the other firm should he- considered*, and treated as matter of firm account against his firm, and dealings and settlements have from time to time been made on this basis, the balance found on such a settlement, made in good faith on the strength and in pursuance of such antecedent agreement and practice, is held to be a legitimate demand as between the parties, on behalf of the creditor firm against the other, ‘for which an action will lie.</p> <p>Contracts: Partners. Where no rule of law or policy stands in the way, and the-parties labor under no disability, their right to bind themselves by such an agreement is held to be complete.</p> <p>Statute of frauds: Promise to answer debt of another: Original transactions. Such an understanding is not within the provision of the statute of frauds as to promises by one party to answer for the debt of another; purchases and sales made in strict pursuance and on the faith of such an agreement are entitled to be considered as original transactions on the part of the members of the firm charged. • **</p>

<p>Mechanics' lien cases: Appeals: Practice in supreme court: Verdict of jury. The supreme court has no jurisdiction to review proceedings to enforce a mechanic’s lien under the statute (Comp. L. 1871, ch. 215) except hy virtue of the special act (Lazos of 1873, p. 119) conferring such jurisdiction; and as that act specifically provides only for appeals to be takemin the same manner as in ordinary chancery cases, and enacts that the powers and duties of the appellate court in relation thereto, “shall be the same as are now provided by law in relation to appeals in ordinary chancery cases,” it thereby excludes any other mode- of review, or rule or course of proceeding on appeal; and the finding of a jury, therefore, in such proceedings, instead of being considered decisive and controlling, as at common law, must be regarded as a mere provisional and assistant inquisition, analogous to a verdict on a feigned issue in a chancery cause.</p> <p>Appeals in lien cases: Practice * Rulings on the trial. In an appeal of this kind, where the proofs are such that the court does not feel the need of the aid of the finding of the jury, but is enabled to turn away from such finding and form a decided opinion for itself, the points made on the rulings at the jury trial, and in charging the jury, etc., will not be considered/'</p> <p>Mechanics' liens: Contract relations: Evidence. By this lien law the prescribed contract relation is made a ^ecessary prerequisite, and in proceedings under it to enforce a lien the existence aad terms of the contract upon which the alleged lien is based must be distinctly and affirmatively proved.</p> <p>Married women: Mechanics'liens : Contract relations: Husband and wife. In proceedings to establish such a lien upon the lands of a married woman, by virtue of an alleged implied contract, evidence showing that, at the time the materials for which the lien is sought were furnished, the respondent was living with her husband in the building for the repairing of which the materials were procured, and that the latter, without authority to bind his wife, purchased such materials in his own name and on his own credit, and was individually interested in having the repairs made, not only falls short of establishing any contraer relation with respondent, but clearly excludes the existence of such relation.</p> <p>Proceedings to enforce mechanics' liens: Petition: Respondent's title. In setting up the title of the respondent to the lands in the petition in such proceedings, it should be made to appear that the respondent had some interest in the lands at the time the materials were furnished, or when the certificate was filed, and it is not sufficient to set forth only the state of the title at the point of time when the petition is filed.</p> <p>Proceedings to establish mechanic's liens: Decree. The final decree in such proceedings, sustaining the lien, ought expressly to adjudge the existence of contract relations between the parties, and the establishment of the alleged lien upon the described property.</p> <p>Mechanics' liens ; Statute construed: Practice. Notwithstanding this statute discloses an intent that proceedings under it should be prosecuted in a manner to exempt them from technical refinement, yét, as the remedy looks to a somewhat summary subjection of real property under loose verbal arrangements, and to the passage and founding of titles to land as the result of compulsory proceoclings, all matters of substance, and every step in any way essential to the security of rights and titles, and the preclusion of future strife and contention, ought to be strictly insisted upon.</p>

Appeal in Chancery from Kent Circuit. * This case was heard in the Kent circuit upon demurrer to the bill; and the demurrer was sustained, and the bill dismissed. The complainant appeals. The bill purports to be one to remove a cloud from plaintiff’s title to a piece of land containing two and twelve-one hundredths acres, and asts a decree for a release.

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

<p>Partners : Contribution : Remedy at law; Accounting in equity. The remedy at law for contribution between two partners after dissolution is admissible; and where there have been no such dealings with assets, and no such private relations with the firm, as to make a settlement difficult, there would be, no occasion, under our statutes making discovery obtainable at law by the examination of parties as witnesses, for an accounting in equity.</p> <p>Partners: Contribution: Money demand : Remedy at law. Where there are no assets remaining after payment of the debts, the liability of one partner for moneys advanced to him by the other partner beyond his share of the debts after dissolution, is a simple money demand, which could be settled without any legal obstacle in an ordinary action at law.</p> <p>Estates of deceased persons: Claims: Commissioners: Partners ! 'Contribution. Under our statute concerning the proof of claims against deceased persons, permitting any purely pecuniary claim, involving no com'plications between more than two contending interests, to be established before the commissioners on claims, such a demand of the surviving partner for contribution would be provable against the estate of his deceased partner, and a resort to equity would not be necessary.</p> <p>Estates of deceased persons: Partners: Claim for contribution. Proof by tbe surviving partner that be bad furnished more than bis share of capital, that tbe capital was all absorbed, leaving large debts and no assets, and that he bad paid debts at the request of the deceased, would authorize a recovery against tbe estate of the deceased partner for contribution; and the refusal of requests to charge which based a right of recovery on such proof, is held eSror.</p> <p>Irrelevant instructions to the jury. Instructions given to the jury in this case, • concerning the prior rights of partnership creditors against partnership funds, are held to be foreign to any thing disclosed by the record which could affect the plaintiff’s rights or the defendant’s liability in this proceeding.</p> <p>Estates of deceased persons : Evidence: Matters equally within the knowledge of the deceased. Evidence as to what occurred at a time when the deceased was absent, such as the forwarding of property from Michigan, destined for his use, when he was in Texas, and as to the value of-the property and transportation, and as to matters which it is not made to appear were specially or at all known to the deceased, is not excluded by the statute {Comp. L., 1871, § 5968,) relating to evidence of matters equally within the knowledge of the deceased.</p>

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

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

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

<p>Error to Van Burén Circuit.</p>

<p>Contracts for sale of lands: Possessory rights: Injuries to the freehold. A contract purchaser of lauds who has acquired no possessory rights cannot, at least before he has fulfilled all the conditions of his contract, ancl become absolutely entitled to a conveyance, maintain an action foi* injuries to the freehold; but such right of action belongs to the legal owner of the land.</p> <p>Peed: delation: Transfer of right of action. Where such contract purchaser has brought his action for a trespass upon the lands, a deed subsequently executed by his vendor upon an anticipated payment, cannot operate by way of relation to the date of the contract, so as to transfer to such purchaser, for the purpose of saving his suit, the right of action for such trespass which when the suit was brought belonged to the vendor.</p>

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

<p>School district: Management of suits: Assessor: District board. Our statute {Comp. L., 1871, § 3613) having confided the management of suits brought against a school district to the assessor when no other direction has been given by the voters in district meeting, the moderator and director, though constituting a majority of the district board, have no authority to take the defense of a suit from the assessor; the control of suits is not among the powers or duties confided by the statutes to the- district board.</p> <p>The suggestion that the action of the assessor in this case was such as to be evidence of an adverse interest is disregarded; such a suggestion might be made in any case where the assessor had refused to yield his legal authority to another.</p> <p>School districts: Appeal: Director: Dismissal: Costs. A jnflgment for costs against the district on the dismissal of an appeal taken in the name of the district by the director, without the authority or assent of the assessor, on the ground that the district had not appealed, is held to be erroneous.</p> <p>School districts : Writ of error: Assessor: Costs. Costs are not awarded against the school district in this court, on a writ of error brought without authority of the assessor, to review such dismissal.</p>

A bridge was destroyed, and certain persons of the town petitioned the respondents, who were the highway commissioners, to rebuild the bridge. A majority of the commissioners examined the matter and concluded to rebuild, and. took the preliminary steps to cause a contract to be let at a public bidding. Two only of the commissioners attended at the bidding.

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

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

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

<p>Exceptions from Lapeer circuit.</p>

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

<p>Promissory notes; Consideration ; Judgments: Subscriptions. In an action upon a promissory note given in satisfaction of a judgment upon a subscription to the capital stock of a corporation, evidence as to the misfortunes or bad man- ■ agement of the corporation is irrelevant.</p> <p>Subscriptions to capital stock; Judgment ; Bes adjudicata. The judgment upon the subscription so long as it remained in force would be a conclusive adjudidication upon any defense to the validity of the subscription.</p>

<p>Charter of Lansing: Grading contract: Re-assessment. The authority of the common council of Lansing under the revised charter (Laws of 1869, Vol. 111., page 1859, § 27) to levy a second assessment, upon the setting aside of the original assessment as invalid, to pay valid claims under a grading contract, is sustained; and the proviso in such charter, that nothing therein shall be construed to repeal or in any manner interfere with the provisions of a special act (Laws of 1867, Vol. 1L, p. 680), providing for a reassessment upon the basis of a new survey and estimate to be made of the amount of work done under such grading contract, does not affect this authority as to obligations arising out of said contract which had become fixed before such special act was passed, and to which therefore it could have no application.</p>

<p>Mortgages: Possession; Permission. Permission to the mortgagee to take possession of the mortgaged premises, given by the mortgagor’s administrator after he had parted with the title, is of no more force than if given by a stranger.</p> <p>Mortgages: Ejectment: Bight of possession. Under our statute (Comp. L. 1871, § 6268), forbidding ejectment suits by mortgagees before foreclosure, the possession of a mortgagee who goes in without the permission of the mortgagor, though peaceably taken, cannot be upheld; this was in effect decided by Mundy v. Monroe, 1 Mich., 68.</p> <p>Mortgages : Possession: Permission. Whether, in case a mortgagor puts a mortgagee in possession, or gives Mm permission to enter, any inference would arise that the license is given with a view of making the possession subservient to the purposes of the mortgageQueerer</p>

<p>Error to Saginaw Circuit.</p> <p>Plaintiff in error was convicted of burglary, and sentenced.</p>

<p>Alcoholic liquors: Appointment of inspector: Mandamus. The appointment of an inspector under the liquor inspection law {Gomp, L., 1871, § 1550), is held to be preliminary to possible criminal proceedings and to have no practical office, if indeed any at all, except to that end; and as no provision is made under it for summoning a jury and having a trial in the probate court, the law in its main purpose is -wholly ineffectual. Mandamus will not be granted to require such appointment.</p>

This application is to compel the respondent to strike from the files of a cause pending in his court an amended ■declaration.

<p>Mandamus: Supervisors: County treasurer: Tax sales. Mandamus is granted, to compel the supervisors to spread upon tlie tax rolls of tbeir county a sum lost by the state in consequence of the failure of the county treasurer to account for moneys received at a tax sale conducted by him.</p> <p>Statute construed: Defaults of county treasurer : Liability of county. The statute (Comp. L.y 1857, § 924) is very broad, and seems to be intended to coyer all possible losses that may arise from the county treasurer’s default under the tax law.</p> <p>County treasurer: Tax sales: Slate agent: Official duties. The county treasurer in conducting tax sales is not acting as agent of the state in such a sense as to put his action in this regard outside his official duties as treasurer, and thereby make the loss by Ms default in accounting for the moneys received' by him on such sales that of the state, and so not chargeable to the county-under said statute.</p> <p>County treasurer : Tax sales: Official duty: Bond to state: Official bond. The provision of the statute (Comp. L. 1857■> § 877) that the county treasurer shall give a bond to the auditor general conditioned for the accounting for money-received at tax sales, construed in connection with the statute (Comp. L. 1857, § 878) prescribing the requirements of the county treasurer’s bond, is held, notwithstanding the provision of the statute (Comp. L. 1857, § 878)t authorizing the employment by the auditor general in behalf of the state of some other person, in case the county treasurer neglects or refuses to give the bond-required by the previous section, to make tax sales, to impose the duty as an official duty upon the county treasurer to make such sales, and his bond to the auditor general is held to be an official bond, and only cumulative security to the state for the proper performance of such duty.</p> <p>County treasurer: Defaults: Responsibility of county; State policy. The provision making the county; responsible to the state for the defaults of its financial officer, was incorporated as part of a general system, into the Revised' Statutes of 18h6, under which the townships were subjected to a like responsibility for the collection of county and state taxes by their treasurers, though such treasurers were required to give security to the county in addition to their official bonds.</p> <p>County treasurer: Tax sales: Bond to the state. Tbe state, by taking a bond from tbe county treasurer under tbe statute {Comp. L. 1857, § 877), does not confine itself to tbe remedy upon that bond in case of delinquency; the state, in tbe provision it makes for such cases, does pot stand in tbe position of an adversary party to tbe county, but has tbe interests of its municipal subdivisions as much in view as its own; and tbe providing of further security to tbe county, is a sufficient reason for tbe requirement of such additional bond.</p> <p>'County treasurer; Tax sales: Additional security: State policy. The precaution of additional security to that of tbe official bond of tbe collecting officer may justly be attributed to a prudent and proper regard to tbe protection of tbe interests of tax payers against duplicate exactions for tbe same demands, rather than a purpose to protect its own interests, which are amply protected by tbe right to levy taxes until all its needs are supplied.</p> <p>Laches. Tbe state is held to have lost nothing by laches; tbe rule laid down in Detroit v. Weber, 26 Mich., 28k, as between tbe city and tbe sureties on an official bond, is held applicable as between tbe state and one of its municipal subdivisions.</p> <p>•Supervisors: Assessing taxes: Mandamus; Alternative remedy. Tbe board of supervisors having adjourned before being served with the writ requiring them to spread tbe sum involved in this controversy upon the tax rolls, tbe court declines to compel them to come together again in order that tbe amount may be made by tax the present year; the alternative remedy open to the state, to charge tbe amount over to tbe county and cause it to be collected another year, is deemed preferable.</p>

<p>Certiorari to Justice of the Peace.</p> <p>These four eases were argued together.</p>

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

<p>Warrant: Complaint: Examination of complainant: Jurisdiction. Whether under the statute (Comp. L. 1871, § 7826) a magistrate, as between him and the accused, has any right to issue a warrant upon a formal sworn complaint, without first making an examination of the complainant, reducing it to writing, and causing the same to be subscribed, and whether a warrant thus issued would confer any rightful jurisdiction to proceed against the defendant:— Queere ?</p> <p>Malicious prosecution : Want of jurisdiction: Warrant. But where the want of jurisdiction does not appear upon the face of the warrant, and is only made to appear by evidence aliunde, the party arrested and prosecuted may, when he has been acquitted, maintain an action for malicious prosecution, upon a showing that it was malicious, and in the absence of proof of probable cause, or that the defendant acted in good faith..</p> <p>Malicious prosecution; Want of jurisdiction. Whether where a total want of jurisdiction appears upon the face of the warrant, the proceeding can be made the basis of an action for malicious prosecution: — Quaere?</p>

* This was an action of assumpsit brought by Griswold against Lawrence in the Lapeer circuit, upon a note of which tbe following is a copy: “Marathon, Sept. 8, 1871. “ $130. Three months after date, for value received, and in consideration of a policy of insurance on the life of D. G-.

Appeal in Chancery from Kent Circuit. This was a bill to remove an invalid tax title as a cloud upon complainants’ title to certain lands. Defendant interposed a demurrer, which was sustained, and the bill dismissed. Complainant appealed.

Case made from Kent Circuit. The showing of authority to receive payment in this case was that Mr. Clay was employed by one claiming to be plaintiffs’ agent, assisted in the trial, and received of plaintiffs partial compensation therefor.

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

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

<p>Service qf process: Exceptional provisions : Statute construed. All exceptional modes of obtaining jurisdiction over persons, natural or artificial, not found within the state, must be confined to the cases and exercised in the manner precisely indicated by the statute.</p> <p>■Justice's courts: Process: Service: Foreign county. Under our justice’s act process from a justice’s court in civil cases is not authorized to run into another county, or to be served beyond the bailiwick.</p> <p>Foreign insurance companies: Statutes construed: Service of process: Justice's courts: Jurisdiction. Our statute (Comp. 1871, § 1688) concerning the service of process against foreign insurance companies doing business in this state, upon their agent, is held not applicable to process from justice’s courts, but only to that of courts of record; and justices of tbe peace have no jurisdiction over foreign insurance companies, especially since the act of 1878 (Laws of 1878, p. 206), authorizing the service of process in all cases against such companies, by delivery to the state commissioner of insurance, who is required to send duplicates to the company or to its agents within the state; such a provision could not be designed to apply to aDy court proceeding on summary process, as it would allow no time to prepare for defense, or even to appear.</p> <p>Statutes construed: Foreign insurance companies: Process: Service. Whether this act of 1878 entirely supersedes the former law on the subject, or is merely additional, is immaterial, since it applies to all suits brought after its passage, and makes the service on the commissioner permissible, if not imperative.</p>

<p>Declaration: Teme: Curative statute; Technical defects. In an action against a railroad company for damages arising ont of their neglect to fence their railroad where it crossed the plaintiff’s land, the want of venue in the declaration is held cured by the statute (Comp. L. 1871, § 6051), where the in jury complained of was located territorially upon land in the county where the suit was brought. Trial by the court stands in the same equity in this regard as trial by jury.</p> <p>Declaration,: Technical defects : Waiver. Pleading and going to trial precludes parties from setting up merely technical defects, where the declaration contains a good case otherwise.</p> <p>Declaration: Dailroad companies: Corporate character: General averments. A declaration in such an action, which charges the defendants as corporations «« owning, occupying and doing business on and over ” a certain railroad (naming it), “under the laws of the state of Michigan,” is not open to the objection, under the plea of the general issue, that it does not allege defendants to be corporations, or otherwise competent to be sued.</p> <p>Declaration: General allegations: Damages. General allegations of the continuous operation of the road, and the continuous neglect to fence it, and that damages resulted therefrom, are sufficient to authorize a recovery for such natural mischiefs as invariably follow the destruction of fences and exposure of lands, and which cannot easily be itemized.</p> <p>Fencing railroads: Statutory duty: Damages: Declaration: Deference to the statute. It is not requisite that a declaration in such an action should be specially framed upon the statute imposing the duty of fencing railroads, or should refer to it, the duty being imposed by a general statute, and the action being, not one for a penalty, but for damage# resulting from the neglect of a statutory duty.</p> <p>Declaration: Damages: General averments: Special injuries. The general allegation, in such a declaration, of “ damages done to this plaintiff’s stock by defendants’ engines passing over said railroad,” etc., is not sufficiently precise to warrant a recovery for the destruction of a colt run over by a train; this was a specific act, not so necessarily caused by the neglect of fencing that defendants could be expected to meet the charge without having it pointed out directly.</p>

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

Appeal iu Chancery from Wayne Circuit. This was a bill to foreclose a mortgage, dated August ,1, 1852, and executed by defendant Smith, and his wife, to secure his promissory note of even date, for one hundred and fifty-six dollars and twenty-six cents. Defendant Evans subsequently purchased the mortgaged premises, and -while he was owner of the same, paid to the holders of the mortgage the amount due upon it, and took an assignment thereof to himself.

<p>Transfer of causes: Act of 1789: Statute construed: Time of application. Under the act of 1789 a cause cannot be transferred from the state court to the federal court where the application is not made until after appearance and plea to the merits.</p> <p>Transfer of causes: Act of 1867 : Statute construed: Aliens. Under the act of 1867 a cause cannot be so transferred where the controversy is not one between a citizen of this state and a citizen of another state, but between a plaintiff who is a citizen of this state and a defendant who is also such citizen, joined with another who is a resident alien.</p> <p>Transfer of causes. These statutes contemplate a transfer as to all, or not at all, where there is more than one defendant and when the application proceeds from the defense, and do not authorize a division or splitting up of the case through a transfer on the side of the defense.</p> <p>Transfer of causes: Act of I860: Severance. Under the act of 1866 a severance and removal is not authorized unless the suit is such that the controversy may be finally determined in the federal court as to the defendant electing to go there, and that too in the absence of his co-defendant.</p> <p>Transfer of causes: Ejectment: Severance: Application. There are many cases where, under our laws, there is a cause of action against two or more defendants in ejectment, whose relations to each other* and to the subject of the suit, are such that it is not possible to proceed and obtain against one, in the absence of the other, a final and effectual determination of the controversy, and where, too, this condition of things would not appear from the pleadings or the record ; and an applicant for severance and transfer of an ejectment suit must therefore make an affirmative showing that the federal court can finally and effectually determine the controversy as to him without his co-defendant.</p> <p>Ejectment: Joint defendants : Severance. It would be impracticable, in case of an ejectment against the actual occupant and another merely incidental party who has been joined as a defendant under our statute, by reason of his privity in estate with such occupant, to work out any final and effectual determination of the controversy as to such incidental party, by pursuing him separately and alone in a distinct jurisdiction.</p> <p>Ejectment: Judgment: Pleadings. The effect of a judgment in ejectment, under our statute, is different from that of such a judgment at common law, and this difference in many cases would make a severance impracticable; and the pleadings are not required ‘to disclose the conditions and relations which go to make up this distinction; and the pleadings in this case, being in the ordinary general form, would not suffice to show whether the case was one in which a severance was admissible.</p> <p>Transfer of causes: Application: Showing of facts. A showing in an application by one of two defendants for a transfer, merely by the general statement that the suit is one in which there conld' be a final determination of the controversy as far as it concerned such applicant without the presence of his co-defendant, is but the statement of an opinion or legal conclusion ; such application must state the facts constituting a proper basis for the decision of the court.</p>

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

^Exceptions from Houghton Circuit. The communication upon which this prosecution was. based was as follows, viz.: Houghton, Mich., Jan. 17, 1874. “ Mr. Charles Edwards : “You doubtless know that James Allen will commence-prosecution against you in a short time, if the prosecuting attorney does not; that is the reason I am detained here;, he also will commence a suit against you for damages, both of which suits he intends me' for the chief witness, it being well known that my…

This was an action for moneys had and received, brought by defendants in error, who had united in getting up a horse fair association, against plaintiff in error, who had acted as treasurer of the association, to recover moneys received by him as stock subscriptions, entrance and admission fees, and commissions • on pools sold. Plaintiffs recovered, and defendant brought error.

<p>Case made from Shiawassee Circuit.</p> <p>This was an action of trover.</p>

Wellover sued one Emily Piersons before a justice of the peace and garnished George G. Soule. The garnishee summons was dated April 28, 1873, and was served the same day. The return day named in the summons was April 10th, 1873. On May 10th, 1873, the garnishee defendant appeared and answered.

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

<p>Referee's report: Exceptions: Findings of fact: Conclusions of law. Where a case -which has heen referred comes up for review upon exceptions to the report of the referee alone, without any bill of exceptions bringing up the proceedings before the referee, his findings of fact are conclusive, and the only points that can be raised relate simply to the correctness of his conclusions of law.</p> <p>Breach of contract: Damages: Findings of fact: Conclusion of law ; General objection. In an action to recover damages for the breach of a building contract, where a referee’s report finds 'as facts the making of a contract which was abandoned and broken, and that damages resulted, the conclusion of liability for an amount stated, in the absence of any exception to any of the items found, is not open to the general objection that it is inconsistent with the findings of fact.</p>

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

<p>Certiorari to Commissioners of Highways of Olive and Robinson.</p>

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

<p>Findings of fact: Conclusions of law : General allegation of error : Practice. Where the only error alleged relates to the conclusions of law from the facts found, if the findings of fact support the judgment rendered, it is unimportant whether the conclusions of law apart from the judgment are correct or not.</p> <p>Mortgaged chattels: Mortgagor's interest: Execution: Levy: Possession. The mortgagor’s interest in mortgaged chattels is subject under our statutes to levy and sale on execution; and the chattels can not lawfully be taken by the mortgagee from the possession of the sheriff while he holds under such a levy and is proceeding to sale.</p> <p>Chattel mortgages: Purchaser of the debt: Equitable title: Mortgagor's interest: Merger. One who purchases a note secured by mortgage and takes no legal transfer by endorsement of the note or by assignment of the mortgage, acquires only an equitable interest; but that interest would enable him to deal with the mortgage for all beneficial purposes; and if he afterwards purchase the mortgagor’s interest subject to a levy, his title becomes complete except as against the levy.</p> <p>Purchase of property subject to a levy: Estoppel: Trespass: Levy: Judgment: Satisfaction. One thus sitnaled, who has purchased subject to a levy, is estopped from denying the levy, and his seizure of the chattels while under the levy is a trespass; and he will not be heard to insist that the judgment was satisfied by a levy which he himself had unlawfully defeated.</p> <p>Execution: Levy defeated: Alias execution; Fraudulent sales. Where" an execution, which had been levied on such chattels and the levy thus unlawfully defeated, has been returned unsatisfied, with a statement of the facts, a further execution may issue; and as against a judgment creditor who is proceeding with diligence, any disposition of property made with a direct design of defeating his remedy is fraudulent and Yoid.</p> <p>Fraudulent grantee: Tortious interference with a levy: Subsequent purchasers. A fraudulent grantee, to whom a judgment debtor has transferred his property subject to a levy, can not put himself in any better position by a tortious interference with that levy; and the property in his hands, or in the hands of any mala fide holder under him, would continue to be held under the character of a disposition in fraud of the judgment creditor.</p>

<p>Exceptions from Wayne Circuit.</p> <p>Motion to place cause on the docket.</p>

The petitioner was tried in the recorder’s court of Detroit for murder, and was acquitted by reason of insanity. The recorder, in pursuance of the statute {Comp. L., § 7957), committed him to the state prison until further order; and he is now confined by virtue of such commitment in the insane asylum attached to the state prison.

<p>Settlement: Objection: Laches; Estoppel. Where one had contracted for a certain per diem allowance to attend to the running of logs for himself and three other parties, each to furnish his share of men and outfit and expenses in proportion to the wood-scale of his logs, and on a final settlement at the close of the work such as had furnished a surplus to be credited for it, and such as were short to be charged the deficiency, a settlement which all parties interested participated in and acted upon except one firm, of which one member was present, will not be disturbed at the instance of such firm unless impeached for fraud or mistake, after they have ■ allowed it to stand beyond the lapse of a reasonable time without objection; they will be held estopped by a much less degree of negligence than would be pardonable where the rights of third parties were not involved.</p>

<p>Public park : Act of congress construed : Exception from grant: Name of building as a designation of the land; City of Detroit: Proprietary rights. ' The triangular piece of ground bounded by State street, Rowland street and Gris-wold street, in the city of Detroit, on wnicb, in 1823, was erected a building known as the court honse, is held to bave been excepted from the grant of property made to the city by the act of congress of August 29, 1842, by the exception therein made of the court house, the name of the building being given as a designation for the land itself; and the city, therefore, though having a power of legislative control and regulation, has no authority over this park as a proprietor.</p> <p>Public park: Bights of the city: Board of education: Landlord and tenant. The relations of the city to the board of education, in reference to the occupation of this Mangle by the latter under the existing legislation in that behalf, is held not to be that of landlord and tenant, such as to empower the city by a notice to quit to terminate such occupancy.</p> <p>Public parks: Dedication : Streets: Inconsistent public uses. This ground having been reserved by the act of congress of 1807, “for public wells and pumps, for markets, for public schools, for houses for the reception of engines or other articles for the extinguishment of fires and for the preservation of the property of the inhabitants, for houses for the meeting of religious, moral, literary or political societies or other useful associations, and generally for such purposes of utility or ornament as the city council of Detroit may at any time by law provide,” etc., proceedings by the common council to open a street through it cannot be sustained as action merely changing the uses of public grounds and devoting that which before was dedicated to public instruction to another public purpose, for this is a change from one of the uses specified in the act, to a public use which is not there enumerated.</p> <p>Cases distinguished. This case is distinguishable from Riggs v. The Board of Education, 27 Mich., 262, and Hinchman v. Detroit, 9 Mich., 103.</p> <p>Construction of statutes : General words: Enumerated particulars : Parks. The general words in said act of congress, “and generally for such purposes of utility or ornament as the city council of Detroit may at any time by law provide,” must be construed as referring to purposes of the same general nature and classification with those specifically enumerated, and cannot be made to embrace those which are so- different as to amount to an annihilation of the very parks which congress by said act sought to establish and perpetuate.</p> <p>Charter of Detroit: Common council: Parks: Streets. Upon the question of the legislative intent by the charter of Detroit to confer upon the common council authority to convert the city parks into streets, the fact that the very section which confers a general authority to lay out and open streets defines its powers in respect to such grounds to be “to make, grade and improve and adorn the public parks, squares, spaces and all grounds in said city belonging to or under the control of the corporation, and to control and regulate the same, consistently with the pmposes and objects thereof,” has a significant bearing, and clearly negatives any inference of such intent from the general authority granted by this section.</p> <p>Parks: Streets. It is not “consistent with the purposes and objects” of such parks that they should be converted into streets, which would terminate their distinct and separate existence.</p> <p>Statute construed : Parks: Public uses : Improvements ; Tenancy : Bights of ■ occupants. The act of 180T, for several of the purposes enumerated, clearly contemplates a dedication to public uses which are to be worked out through corporations or associations of citizens formed for religious, moral, literary or political purposes, and by means of buildings and improvements to be erected or made by an expenditure of their own funds; and it clearly does not contemplate that these corporations are to be all the while mere tenants at will of the city, subject to be dispossessed and to be deprived of the benefit of their expenditures on no more notice than is required by the statute to be given in the case of a tenant at sufferance.</p> <p>Board of education : City of Detroit : Distinct corporations. The board of education of Detroit, though existing for purposes strictly public, is nevertheless a distinct corporation from the city, having its distinct property and funds, and entitled to demand for them the same protection which may be demanded by other corporations or individuals.</p>

Appeal in Chancery from Superior Court of Detroit. This was a bill for an accounting to ascertain the amount equitably due upon a mortgage given by the complainants to the defendant, and, upon payment thereof, for a discharge or cancelmenfc of the mortgage; and it prayed for an injunction against proceedings to foreclose the same.