Volume 31 — Michigan Reports

<p>Confession; Insanity; Immaterial rulings: Record: Evidence. Where on a trial for an assault with intent to commit murder, in reply to evidence of a confession by tbe defendant, made some time after the alleged offense, that he had committed the offense charged, an effort has been, made in order to avoid the force of such confession to show that defendant was insane when he made it, though not when the offense was committed, upon a record which states simply that there was evidence that he was insane some thirty-six or forty-eight hours after the time of such confession, and other evidence that he was never insane, from which record, as a whole, the implication is clear that there was no evidence of his insanity at the time of the confession, the rulings of the trial court on the question of such insanity, and the burden of proof and the nature of the evidence on that subject, are immaterial and can not be assigned for error.</p> <p>Charge to the jury: Alibi: Evidence. Whether the charge to the jury in this case is open to the objection that it in effect instructed the jury that the defense of an alibi must be proved conclusively or beyond a doubt: — Qucere f</p> <p>Criminal trials: Ei'roneous rulings: Practice. In a criminal case it is not a sufficient answer to an alleged error in the charge to the jury, to say that the record discloses a probability that the defendant was not injured hy the erroneous charge, but it must appear beyond any .reasonable doubt that he could not have been so injured.</p> <p>Criminal trials: Alibi: Neglect to interpose defense on preliminary examination. Whether the neglect of a prisoner to interpose his defense of an alibi before the examining magistrate should be allowed under any circumstances to be commented upon against him on the trial and to be considered by the j ury :— Queer ef</p> <p>Criminal trials : Rulings of court in presence of jury: Instructions: Practice. The remarks of the court in the presence of the jury in overruling an objection interposed by a prisoner’s counsel, to comments adverse to the prisoner, made by the counsel for the prosecution in his closing argument to the jury, upon the fact that the prisoner failed to interpose his defense of an alibi on his examination before the magistrate, are to be treated and considered on error precisely as if addressed to the jury and embodied in the charge.</p> <p>AIM: Neglect to malee defense before examining magistrate : Instructions to the jury. A ruling that “it is the duty of a respondent when he has a good defense in the nature of an alibi, to interpose that defense at the earliest moment possible; and a respondent should offer his defense of an alibi before the examining magistrate, with a view to saving himself anxiety and trouble, and the people the great expense of a trial,” is held to be erroneous, especially in the absence of any showing that the witnesses sworn on the trial on that subject were present or attainable at tbe examination.</p>

<p>Application for Mandamus.</p>

*This was an action brought by Sackett against Hunt in a justice’s court, tbe plaintiff declaring upon all the common counts in assumpsit. The case was appealed to the circuit court and tried before a jury, tbe plaintiff recovering a judgment for one hundred and fifty dollars damages, and tbe costs of suit. Tbe case is brought here by writ of error and bill of exceptions.

Appeal in Chancery from Kalamazoo Circuit. * This was a bill in the nature of an information, by Byron D. Ball, the Attorney General, in behalf of the people, on the relation of Edward A. Bissell, a tax-payer of Richland, in. the county of Kalamazoo, against the township treasurer and the supervisor of said township, and the trustees of the First Presbyterian society of Richland, to restrain and enjoin said treasurer and his successors from paying the: sum of two hundred and…

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

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

Kane sned Chester and Maria Ashley before a justice, and garnished Watson. Judgment passed against the principal defendants by default, but in the garnishee proceedings the justice rendered judgment for the garnishee defendant, and Kane appealed to the circuit. In the circuit Kane recovered judgment against the garnishee defendant, who thereupon brought error.

<p>Sales: Agency : Ratification: Attachment: Bond to release property. Where suit is brought for the purchase price of certain chattels and an attachment is levied on the same property claimed to have been sold to defendants, the giving of a bond to release the property from'the writ is not a recognition of it as theirs, and can have no force as a ratification of an unauthorized purchase by another.</p> <p>Contract construed: Agency: Purchases on credit. A contract to receive from 'another within a given time a certain maximum amount of staves of certain kinds and sizes, at a specified profit beyond what they cost him, and to pay, as fast as he renders statements of purchases, a sum large enough to make him good, reserving commissions until the final delivery, is held not to he a contract of agency such as to authorize him to hind his consignees by a purchase on credit.</p> <p>Judgment: Findings: Purchases on credit: Agency. Findings in such a case, that the staves were sold on defendants’ credit, that their agent knew purchases were sometimes made by their contractee without paying for them in full, and that he sometimes advanced money to the latter without waiting for statements, and that the buying of staves is usually carried on partly on credit, in the absence of any finding that defendants or their agent had knowledge of any purchases in their name or on their credit, or that there had ever been any interviews or transactions with plaintiif, are not incompatible with the judgment rendered for the defendants.</p>

<p>Payment: Purchase price: Assignment: Evidence: Charge to the jury. In a suit for the purchase price named in an assignment of an interest in a partnership, where the disputed question is whether the price was not paid at the time of the transfer, and where the assignment itself throws no light on it except by the recital that ** the party of the first part for and in consideration of the sum of two hundred and forty dollars, agrees to and does hereby sell, assign,” etc., a charge which instructs the jury in substance that the writing was the only evidence to be considered, and that from the writing the law implied a promise to pay the consideration named, is erroneous; the-question was one for parol proof, and the writing, standing alone, was entitled to be construed rather as a recital of payment than as a promise for future-payment. /</p>

<p>Ghancenj appeals: Notice of appeal: Exchanging briefs: Waiver: Motion to dismiss. When the counsel for the respective parties have prepared and printed briefs, which they have exchanged before a motion to dismiss the appeal is made, this will operate as a waiver of the written notice of appeal.</p> <p>Appeal bond: Motion to dismiss: Amended bond. Where an appeal bond in a chancery cause is defective, it is competent to permit an amended bond to be filed; and an appeal will not be dismissed for defects in the appeal bond where an amended bond is tendered.</p>

<p>Appeal from Wayne Circuit in proceedings to enforce a mechanic’s lien.</p>

<p>Corporations: Directors: Reports: Individual liability: Debts. Liabilities of a company which may give causes of action against it and result in judgments, hut which do not constitute present debts, are not within the statute {Comp. D.t 1857, § 1821) making the directors of manufacturing companies, on their neglect or refusal to file the reports, etc., required by the statute, individually liable for all debts of the corporation contracted during the period of such neglect or refusal.</p> <p>Corporations: Dividends: Prefaced stock: Public policy: Contracts. An agreement by a corporation to pay annual dividends to preferred stockholders, without reference to its ability to pay them from earnings, is opposed to public policy and void.</p> <p>Contracts: Construction. A contract will not he so construed as to subject it to this principle where any other construction is reasonable.</p> <p>Preferred stock: Certificates: . Guaranty of dividends: Earninqs. An endorsement on certificates of preferred shares in a corporation, issued by order of ithe directors, as follows: “five per cent, semi-annual dividend guaranteed from Sept. 1, 1872,” signed by the treasurer, is not to be understood as a guaranty that the corporation will pay dividends at all events, hut only a guaranty to pay dividends to the holders of the certificates in preference to others, when the earnings of the corporation will warrant it.</p> <p>Dividends: Definition: Guaranty. A dividend, in the common understanding of the term, when applied to something to be paid by corporations not insolvent, or in contemplation of dissolution, means a sum which the corporation sets apart from its profits to be divided among its members, and so the word must he understood in such a guaranty.</p> <p>Corporations: Preferred stock: Directors: Autlm'ity: Ratification. The holder of such preferred stock is held not entitled to recover back, as money received to his use, the money paid to the company for the stock, on the ground of want of authority iu the directors without the previous assent of the stockholders to issue such certificates, where it appeared that such stock had beeu distinctly recognized at the meetings of the corporation without any question of its validity having been raised.</p>

Appeal-in Chancery from Ottawa Circuit. * The bill in this case was in the nature of a bill of interpleader.

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

* This was an action of assumpsit brought by Francis against Halsted.

<p>Prohibitory liquor law: Attorney fee: Discretionary allowance against county: Supervisors. The attorney fee provided for by the prohibitory liquor law (Comp. L. 1871, § ¡31U1), to be paid by tbe county where the prosecution is had in any township except that in which the prosecuting attorney resides, not being fixed in amount by the statute otherwise than by prescribing a maximum, is left as a discretionary allowance against the county; and the supervisors, and not the person originating the prosecution, nor the justice, have exclusive authority under the constitution (Art. X, § 10) to fix the amount of said fee.</p> <p>Statute construed ; Attorney fee: Taxation of costs. The allowance of this fee-is not intended by the statute to be left as a mere matter of taxation on the part of the justice. The taxation of costs implies an estimate and allowance of items the amounts of which are fixed and certain, or capable of being rendered so by calculation or evidence; and it is ministerial action rather than.' judicial.</p> <p>Prohibitory liquor law: Attorney fee: Amount: Supervisors. This statute is held to contemplate that the amount of the attorney fee was to be in some-manner fixed by the supervisors in advance, as by resolution establishing a rule and fixing amounts.</p> <p>Prohibitory liquor law : Attorney fee; Taxation. A query is suggested whether the result should be different where afee thus taxed without the previous action of the supervisors has actually been collected and paid into the county treasury; also whether it may not have been intended by the statute that provision for fees should be required of the supervisors only when the attorney is employed by some public officer, or when the prosecuting attorney himself takes charge of the case.</p> <p>Mandamus : Prohibitory liquor lav) : Attorney fee ; Supervisors. Mandamus is denied in this case on an application to require the supervisors to audit and allow an attorney fee of ten dollars taxed by the justice but not collected,, where the prosecution was instituted by a private citizen and the attorney was not the prosecuting attorney, and where the supervisors had prescribed no rule in advance, but in acting upon the claim afterwards had allowed the relator two dollars, and refused to allow any more.</p>

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

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

<p>Tenants in common : Use and occupation: Right of each to occupy. A tenant in common of lands cannot recover of bis co-tenant for the use and occupation by the latter of the lands claimed, in common, in the absence of any express promise; the right of each to occupy is one of the legal incidents of such tenancy, and it pervades the whole land; and one is not excluded by the failure of the other to occupy, but whatever he occupies, in such case, is in liis own right, and not under his co-tenant.</p>

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

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

<p>Certiorari to Drain Commissioner of Otiseo.</p>

<p>Ejectment: Legal title: Provision for support: Eight of possession. Where the owner of lands has devised an undivided interest in the same in fee to his wife with a provision that his daughter should have her maintenance out of the same, and the wife subsequently devised the same in fee to other daughters, subject to the support of the daughter first mentioned, the latter takes no legal interest in the land3 or title to the possession; and she cannot maintain ejectment against the grantees of said devisees.</p>

Clair Circuit. Lavigne sued plaintiffs in error in justice’s court, and recovered judgment on Tuesday, June 9, 1874. On Monday the loth day of June, 1874, the defendants in said judgment filed their appeal papers with the justice, who made return to the appeal, showing this fact. Lavigne’s counsel thereupon moved in the circuit to dismiss the appeal on the ground, among other things, that it was not taken within the time required by the statute.

<p>Promissory notes: Endorser before utterance: Payee; Original promisor : Joint maker. One who at the instance of the maker backs a promissory note, payable to the order of a third person, at its inception, and before it has been uttered or any advance made upon it, and before the payee has endorsed the same, becomes, as to the payee who receives it in that shape and advances money upon it, an original promisor, and bound to him as principal and maker.</p> <p>Promissory notes: Endorser before utterance: Payee: Words of negotiability: Distinction. The distinction sought to be drawn by the courts of ISew York in this regard, between notes having words of negotiability and those that have not, is criticised as being incorrect in principle, in that it makes the whole matter turn upon the form of the paper as drawn, and not upon the true legal relations which immediately arise between tbe backer and payee in the condition the note then is; and it is not recognized by the weight of authority outside of that state.</p> <p>Des adjudícala: Deconsideration; Confiding opinions and theories. The question except as affected by this distinction was settled for this state by Wetherwax v. Paine, 2 Mich., 555. That case having been decided over twenty years ago, and having long been cited and understood, abroad as well as here, as settling the rule for this state, and having been, it is fair to presume, so received and acted upon in commercial circles, any serious disturbance of it now would be confusing and mischievous; and the prevalence of conflicting opinions and theories elsewhere, instead of being a reason for re-opening the question here, affords additional ground^against such a course.</p> <p>Questions of commercial law: Dules of decision: Precedents. On a question of commercial law it would he unwise, in the absence of very strong reasons, to follow the not very harmonious course of decisions adopted in a single state, which is wholly at variance with the view generally, if not uniformly, prevailing everywhere else.</p>

* This was an action brought in the Ionia circuit, by the defendants in error, under the name and style of Bates, Gould & Co., against the lumber company, to recover back the consideration paid on. a purchase, or a contract for the purchase of logs, which the plaintiffs claimed to have rescinded on the ground that the logs had not been delivered afloat, according to the contract. The case was tried before the court without a jury.

<p>Purchase of lands: Contract: Ambiguity: Payment of bach taxes. A contract for the purchase of lands, which provides for the payment by the purchaser of a stipulated price, and that he shall also “well and faithfully in due season* payor cause to be paid all taxes and assessments,” etc., “upon the said premises,” etc., is ambiguous as to whether it does not throw upon the purchaser the duty to pay back taxes then known to be a lien upon the lands: the words “all taxes,” etc., “upon the said premises,” being as applicable to taxes then existing, as to future taxes, and the requirement to pay in due season possibly meaning in season to prevent the land being sold for taxes.</p> <p>Contracts: Ambiguity: Conflict of evidence: Bill in equity: Proofs. Where the parol evidence of the understanding of the parties at the time, as to the precise terms of a contract which is worded ambiguously, is conflicting and leaves the matter involved in uncertainty on all sides, the case is one for the application with some strictness of the rule which requires the complainant to prove the case made out by his bill.</p> <p>Equity pleading and practice: Bill of complaint: Proofs: Payment of taxes for another's benefit: Outstanding tax title. A bill which sets out a case of the payment, to save the land from being sold, of a back tax which it was the duty of the defendant to pay under his contract for the eale of the land to complainant, and which asks to have the amount applied as a payment on such contract, is not strictly supported hy proofs that the land was actually sold for the tax and purchased in his own name by another, who paid the purchase money, but orally agreed to hold in trust for the complainant; this was neither a payment by complainant, nor was it made for the benefit of the defendant.</p> <p>Equity pleading and practice: Proofs-. Case made by the bill: Offer to fit the decree to the proofs.. Where at the time of filing the bill, which demanded relief on the ground of the payment of a tax by complainant for defendant’s benefit, there was actually an outstanding title based upon this tax, which the holder at his option might rely upon as cutting off all the rights of defendant in the premises, an offer to give defendant the benefit of such tax purchase, in the ' decree, is but an offer to fit the decree to a case not made by the bill, and will not relieve the complainant from the application of the rule requiring him to prove the case made by his bill.</p>

This was a garnishee proceeding, brought in justice’s eourt by Krupp against Tabor, as a debtor of one Wright, the principal defendant. Judgment passed against the principal defendant, and no appeal was taken. Judgment also passed against the garnishee defendant, who appealed to the circuit, giving the usual bond. In the circuit the cause was referred to a referee, who reported in favor of the plaintiff, and no exceptions were filed to his report.

This was an action of ejectment brought by plaintiff in error against defendants in error. Judgment below passed for defendants, and plaintiff brings error.

<p>Pleadings: Technicalities: Format defects. Extreme niceties and technical exactness in form in the requirements of pleadings are not favored in modern practice.</p> <p>Quo warranto: Replication: Duplicity. The statement in a replication in quo warranto proceedings, of several distinct facts which are all aimed to mafce out the one ultimate fact of a violation of corporate duty, relied upon as a ground of forfeiture of the charter of incorporation, affords no ground for charging the replication with duplicity.</p> <p>Pleadings: Alternative statement: Immaterial averments. The alternative statement in suck pleading that the respondent “did willfully or negligently so manage their affairs that ” etc., is without influence, when the facts set up are sufficient of themselves without aid from any allegation in terms that the corporation acted willfully or negligently.</p> <p>Pleadings: Argumentative averments: Uncertainty: Direct statement of facts. Where the facts relied upon in such pleading as cause of forfeiture are averred directly and positively so that issue in fact might properly be taken upon the averments, the objection that the pleading is argumentative and uncertain will not be sustained.</p> <p>Corporations: Directors: Plank roads: Repair:■ Averment of neglect. The circumstance that the replication, after averring that the respondent company did not keep their plank road in lawful repair, went further and also averred that the directors did not, is of no legal consequence unless it was in such a way the duty of the directors that the company upon information would he responsible for their failure, and if that was the case, then the averment was proper.</p>

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

This was an action of ejectment brought by defendant in error against Palmiter, in which the plaintiff below obtained judgment. The defendant below moved to set. the judgment aside on the ground of want of jurisdiction to try the cause for the reason that it had been transferred to another circuit. This motion being denied, defendant brought error.

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

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

<p>Transcripts of justice's judgments : Affidavits: Amount due: Judgment. Under our statute {Comp. L. 1871, §§ 5882-8), providing for tlie filing in tlie circuit of transcripts of justice’s judgments, upon a showing by affidavit that there are not sufficient goods and chattels liable to execution within the county, belonging to any one liable upon the judgment, to satisfy the same, and making it the duty of the clerk of the circuit court to file such transcripts and docket and enter the judgments, upon the filing of an affidavit of the amount due, it is held that where there has been no substantial delay in preparing and filing the transcript, and the affidavit for the transcript contains a statement of the amount due, the transcript is not void for want of a separate affidavit of amount due, and an execution issued upon the same from the circuit is valid.</p> <p>Justice's judgments: Transcripts: Issue and return of execution; Justice's docket. The issue and return of an execution unsatisfied before the justice is not, under this statute, necessary to authorize .the filing of the transcript; and while the1 fact ought to appear on the justice’s docket, yet,' if he omits it, this will not invalidate the judgment; and his transcript is correct if it corresponds with the docket.</p> <p>Transcripts of justice's judgments : Entering and docketing in the circuit: Ministerial duty: Clerical omission; Execution. Though the statute contemplates that the judgment shall be entered and docketed in a book, the omission of the clerk to perform this ministerial duty will not, under a practice like ours, by which judgments are not liens on lands, but can be enforced only by execution, render void the judgment, which derives its force and validity from the transcript of the justice; and ^ execution will be valid notwithstanding such omission, at least where there are no intervening interests of third persons; and such entry may be rectified.by proper steps so as to relate back to the filing.</p> <p>Execution sales: Detached panels of land: Sales in gross. Where an execution has been levied on a large number of detached parcels of land, the sale of the-whole in one lot for one bid, after an offer in parcels had failed to bring bidders, is not allowable; the owner,cannot thus be deprived of his statutory right to redeem any parcel by itself. The sale of lands on execution is a purely statutory proceeding; and our statute (Comp. L. 1871, § hGSG) is express on this subject, and allows no sale except in parcels ; and this provision is not merely formal, but is a material one.</p>

These cases all stood in the same position. They were noticed for hearing by the plaintiff in error, on the same day that the assignment of errors was filed. Afterwards, and within the time prescribed by supreme court rule 33, defendants in error pleaded in bar- to the writ, and to this plea the plaintiff in error interposed a demurrer. No new notice of hearing was given after this new issue was joined.

<p>Prohibitory liquor law: Penalty: Declaration: Deference to statute. A declaration under the statute {Comp. L. 1871. § to recover a penalty for a violation of the prohibitory liquor law, which only refers generally to the whole statute, and not specifically to the section for a violation of which the action is brought, is insufficient, on demurrer at least, and also, it seems (CooLEy, J., concurring in the result only, and Chbistianot, J., dissenting), even upon an objection taken on that ground to the admission of any evidence uader it on the trial.</p> <p>Statutory penalties: Declaration. More particularity is required in a declaration to recover a statutory penalty than in some other common-law actions in which, general counts are allowed; and, in the absence of any statutory provision to the contrary, it must set out with substantial certainty the facts to bring the defendant within the terms of the statuie, leaving out no element of liability, and misstating none; and it must aver the obligation to have arisen under a statute.</p> <p>Prohibitory liquor law: Penalty: Declaration. The liquor law having gone very far in the form prescribed in removing the requirements of specific averments, the courts will not assume that the door was intended to be opened any wider than the statute allows; and a declaration which is neither a good,common-law declaration, nor sufficient under either the general statute for the recovery of penalties, or the specific provision of this particular act, cannot be sustained.</p> <p>Prohibitory liquor law: Suit for penalty: Declaration: Deference to section of statute. As this statute does not put all sales upon the same footing, but makes a real distinction in the separate sections in the sales which make parties responsible, while it provides the same penalties for all prohibited sales, there is a substantial reason for requiring the declaration to indicate which section the defendant is charged with violating.</p> <p>Declaration: Signature: Public prosecution: Authority: Attorney. A declaration under this statute which contains no signature, either of the prosecuting attorney or of any other attorney, is fatally defective; in the absence of statute no action can be brought on behalf of the public, except by the proper public agent; and while the statute here in question allows suits to be brought before a justice by private complainants, no private attorney can appear, except outside the township where the prosecuting attorney resides; and this provision is not mere matter of form, but is intended, for substantial reasons of public policy, to keep the control of prosecutions on behalf of the public within responsible direction.</p> <p>Declaration: Signature: Attorney: AuthoHty. The declaration has always been required to be signed by some one, in all courts, and this signature is usually the test to determine who appears; and while, under our statutes, in justice’s courts, private parties may appear in person or by attorney, yet, when, the appearance is by attorney, the authority may always be questioned; and in some cases must be shown affirmatively. It can never be unimportant to require that every suit shall appear to have been brought by some one presumed or shown to have authority.</p>

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

<p>Bill in equity: Parol trusts in lands: Equitable interests: Deed by way of security. The bill in this case is held not open to the construction that it makes out only a case of a parol trust in lands; its allegations, though not as explicit as they might have been, are sufficient to make out a case for equitable relief against a deed given as security.</p> <p>Real estate: Equitable interests: Muniments of title : Evidence. To establish, an equitable right in lands, in opposition to the muniments of title, the parol evidence of the understanding of the parties ought to be very clear and distinct, and should leave no doubt regarding the precise terms of the agreement; and the evidence in this case was not of that character.</p> <p>Chancery cases : Costs: Estates of deceased person: Expenses of administration. Costs in chancery cases are, by the statute {Comp. L. 1871, § 7886), subject, except in a few specified cases, to the discretion of the court; and in this case, which was a bill to establish an equitable title in lands belonging to the estate of a deceased person, and which appears to have been prosecuted in good faith, the taxable costs are decreed to be a charge upón the estate, as a part of the necessary expenses in the administration of the estate, though the relief prayed by the bill was denied.</p>

<p>jBvldence: Lost deed. It is competent and relevant evidence for the purpose of proving the existence and loss of a deed in the chain of title, to show that one who had been register of deeds, and had to do with making an abstract of titles to lands in the county, and had made a list or abstract of unrecorded deeds, of which a large number had accumulated in the register’s office, had seen among these unrecorded deeds such an one as was claimed to have been lost.</p> <p>1evidence: Memora ; Witness repeating contents. A witness who has produced and identified a memorandum which is itself admissible evidence, maybe permitted to testify from it, and such testimony is not open to the objection that the memorandum itself should be read to the jury, where the witness merely repeats its contents; it is not material that counsel should read it, rather than the witness.</p> <p>Lost instrument: Proof of contents: Subscribing witness. It is not necessary to call a subscribing witness to prove the execution and contents of a lost deed.</p> <p>Charge to the jury construed. The charge to the jury in this case is held not open to the objection that it took the case on the facts from the jury, by the statement that there was sufficient proof before them to establish the title of the property in the plaintiff; the fair import of this remark, construed in the light of the whole charge and of the circumstances, is, that there was pertinent evidence before them to be considered, which was uncontradicted and its credit unassailed, sufficient to warrant them in finding the title in plaintiff. — Graym, Ch. J., dissenting.</p>

<p>Zosi instrument: 'Copy: Secondary evidence: Weight of evidence, A copy of what is said to be a copy of an original, with which it was never compared, and from which it is not shown to have been taken, can have no claims of itself to admission as secondary evidence; but when a witness testifies from recollection that it is a copy, it should be received, its weight being left to the jury.</p> <p>Zost instrument: Copy: Secondary evidence: Pi'oof of contents: Error cured. Where, however, such a copy, thus verified, has been erroneously rejected, the error will be cured by allowing the same witness who verified such copy to testify from recollection to the contents of the original, where he was able to state it fully and almost in the very language of such rejected copy.</p> <p>Chattel mortgage: Provision for insurance: Amount due. The word “due” in a stipulation contained in a chattel mortgage, providing for insurance for the mortgagee’s benefit, in a sum equal to the full amount due on the mortgage,, is construed to be synonymous with “ owing,” and to contemplate insurance to the extent of the amount remaining unpaid.</p> <p>Chattel mortgage: Stipulation for insurance: Breach: Insurance by mortgagor. The procuring of insurance by the mortgagee, after default hy the mortgagor under such a stipulation, does not satisfy the stipulation, or so ennre to the-benefit of the mortgagor as to cure or discharge the breach on his part.</p> <p>Special questions to jury: Practice. It is not error to decline to propound to the* jury special questions, which either have no evidence to warrant them, or relate to points not in dispute or to facts which were in no way conclusive;: good praotice requires that the questions put should be few and simple, pertinent and material to the issue, and such as the jury would be compelled by th& evidence to pass upon*</p> <p>Practice: Charge to the jury: Requests. The rejection of the whole of a long list of requests to charge is not error, where the court in a connected charge of his own covers the whole case and lays down the law correctly, and responds to all of such requests which are relevant or are based on any evidence.</p> <p>Replevin: Special interests: Chattel mortgage: Lien for amount to become due. In replevin by a mortgagee, under a mortgage not yet ail due, a ruling that if there was no continuing breach of the mortgage at the time suit was brought, defendant would be entitled to recover the full value of the property, is erroneous under our statute {Comp. L. 1871y § 6754), requiring a special finding in case it appears that either party has only a lien upon, or special property or part ownership in the chattels, and that such judgment shall be rendered as shall be right between the parlies; such a ruling leaves out of consideration, the rights of the mortgagee, on account of the amount still to become due on his mortgage.</p> <p>Newspapers; Stipulation to give space to another: Construction: Ridicule proprietor. Any stipulation by the conductor of a paper to give space to another must be understood to be subject to the implied condition that the space should not be employed to subject the conductor himself'to ridicule and disgrace; the use should be such as, considering the position of the party agreeing to allow it, could be fairly regarded as embraced by the understanding.</p> <p>Newspapers: Stipulation not to publish matter detrimental to another, Ms business or reputation: Construction: Uncertainty: Chattel mortgage: Rower of sale. A stipulation, secured by chattel mortgage on a newspaper establishment, not to use the columns of the paper, or permit them to be used, to publish matter detrimental to the mortgagee, his reputation or business, which is unlimited in point of time, and designed to accompany the property into the hands of whomsoever may become purchasers, is held to be too vague, uncertain, and indefinite to constitute the basis of a mortgage lien enforceable by power of sale; effect can be given to it only on a construction, which would render it intolerable, and presumably not within the contemplation of the parties.</p> <p>Chattel mortgage: Printing material: New material: Commingling: Accession. New printing material, purchased after the giving of a chattel mortgage on the establishment, to supply the wear, decay and destruction of old, and which has been so commingled with the old as not to be readily distinguished, would be included in the mortgage, and become a part of the mortgaged property by accession; but if so kept separate as to be readily distinguishable, it would not be thus included.</p>

This writ was brought for a review of proceedings had before the commissioner, on an application for the dissolution of an attachment issued out of the circuit court for Benzie county, on behalf of Goodrich and another, against the lands and tenements, goods and chattels of Patterson.

<p>Mortgages: Statutory foreclosures: Extension of time: Sale superseded. Where a mortgage has been foreclosed by advertisement, and the premises bid in by the mortgagee, but before the redemption ran out an arrangement has been made between him and the mortgagor to extend the time, and payments have ‘been made and accepted on the strength of it, the foreclosure sale and deed are thereby superseded and rendered abortive.</p> <p>Mortgages: Tender: Condition: Discharge of lien. Where, upon a statutory foreclosure sale, the mortgagee has become the purchaser, and, after having made such subsequent arrangements with the mortgagor as superseded the foreclosure sale, has quit-claimed the land and assigned the mortgage to another, a tender of the amount due by the mortgagor to such assignee, which was made conditional on the latter’s quit-claiming the lands, is not such an unconditional tender as would discharge the lien of the mortgage; the requirement of the quit-claim deed was an inadmissible condition, and exceeded the terms proper for a tender under the circumstances.</p> <p>Mortgages: Tender: Demand of deed: Inconsistent objections. The reply made-at the time to such tender and demand, that the land was worth more money and was not for sale, is not so inconsistent with the objection that the tender was inoperative because accompanied with a demand for conveyance of the land as a condition of the tender, as to preclude the urging of such objection in a chancery suit brought for the foreclosure of the mortgage.</p>

<p>Promissory notes: MaJcer: Deposit: Holder: Payment. Where the maker of a promissory note about to mature, and payable at another bank, entrusts the money with which to pay it to his owu hankers, who give him credit on their books for the amount, and, sending to the holder of the note for it, receive the note endorsed to their order for collection for such holder; and soon after the note falls duo said bankers fail, with the deposit still standing in such maker’s name on their books, and the note in their possession, uncancclled and among their collection paper, and without haying remitted to the holder, it is held that the note is not thereby paid.</p> <p>Promissory notes: Deposit: Agency*. Where the maker, whose duty it is to see that a promissory note is paid at maturity, instead of attending to it himself, entrusts the money to his hankers to do it for him, he thereby makes them his agents: and, if they fail to carry out his instructions, he cannot saddle the loss upon the holder of the note, who has simply sent the note forward endorsed for collection, and for whom such, bankers have performed no act of agency in the premises.</p> <p>Promissory notes : Endorsement for collection. Endorsement of a note for collection for the holder passes no title to the indorsee on his own account. Promissory notes: Deposit: Agency: Payment. How far the owner would have been bound had the bankers, having the note for collection and the money of the maker to pay it with, under such circumstances cancelled the note, or changed the credit on their books from the maker to the owner:— Quaere?</p>

<p>Trial by the court: Findings of fact: Special verdict: Partial findings: Judgment. Where a cause is tried by the court without a jury, and the facts are found specially, the proceeding is analogous to that for a special verdict of a jury, and these findings of fact by the court are, in their form, when properly constructed, and in their nature and operation, substantially a special verdict; and where.a part of the facts necessary to support the judgment are found in answer'to specific requests, but as to certain facts essential to the judgment, and required to be found, there is no finding, the judgment cannot he sustained.</p> <p>Trial ly the court: Case made: Answers to specific questions of fact : Findings of fact: Practice. Upon a record in the general form of a case made after judgment, on a trial by the court without a jury, which contains only the pleadings and evidence, and the answers of the circuit judge to such special requests as were propounded by the respective parties, and the general judgment, without any general finding of facts, these answers of the judge must bo considered as decisions upon the specific matters of fact covered by the particular questions; but this mode of finding facts is unauthorized and irregular, and the practice is criticised.</p> <p>Record: Partial finding of facts: Mistrial: Review. Where, npon a record thus made up, these specific requests and answers cover only part of the facts proved by the evidence, and upon a portion of the facts essential to the judgment there is no finding, the case is not in a shape for review but will he sent back to be retried, the prior proceedings being treated as a mistrial.</p> <p>Replevin: Judgment: Return of properly: Value: Flection: Record. In an action of replevin it is essential to a judgment for the defendant for the value of the property, that the record should affirmatively and ^distinctly show the election to take the value instead of a return of the property; the statute docs not intend that a matter of such importance should be left to inference.</p> <p>Mistrial: Setting aside judgment: Costs. The judgment in this case having been set aside on the ground of a mistrial, no costs arc awarded to either party.</p>

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

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

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

* Keith, the defendant in error, presented his claim of one thousand, dollars against the estate of deceased, before the commissioners appointed by the probate court to take proof of claims against the estate; and the commissioners having disallowed the claim, he appealed to the circuit court, where an issue was formed under the direction of the court, and the case was tried before a jury, who found a verdict in favor of Keith for the amount of his claim, upon which judgment…

<p>Appeal in Chancery from S't. Joseph Circuit.</p>

<p>Corporate wrongs: Joint injury: Remedy: Parties: Stockholders. The legal redress for a corporate wrong which constitutes a joint injury to all the stockholders should be at the instance of the corporation, which represents all for •the purposes of legal remedy; and a stockholder is not entitled to bring suit in his own name for the damage done to him individually, at least not without a showing that the corporate authorities have refused after proper application to act.</p> <p>Conspiracy to destroy corporate franchises: Corporate wrong: Remedy : Parties. A conspiracy with a portion of the directors of a printing and publishing corporation to suspend and destroy the business and franchises of the company, whereby the board of directors of such corporation are induced to suspend the publication of their daily and weekly newspapers for the benefit of a rival establishment, is a corporate wrong, for which the proper remedy is a.suit brought in the corporate name;</p>

<p>Bill to quiet title: Ouster: Possession: Evidence. Under a bill to remove a cloud upon complainant’s title to a strip of land about which a controversy has arisen, growing out of a dispute as to the boundary between adjacent parcels, proof of the assertion by the defendant of ownership over the tract in question, by various acts not acquiesced in by complainant, is insufficient, where it appears defendant has not fenced it separately, nor defined his own exact boundary by any very clear lines, to establish such, a complete ouster as will preclude the relief sought, for want of possession.</p> <p>Boundary line: Fence: Acquiescence: Mistalce: Deed: Estoppel. Where a fence has been treated and acquiesced in as the correct boundary line between adjacent owners for fifteen years, the boundary ought not to be disturbed, even if there were some variance from the true line; but where such fence was the line actually agreed upon, and a deed giving distances had been accepted under assurances that it did not vary such boundary line, the grantor in such deed, and all claiming nnder him, except an honest purchaser without notice, would be estopped from setting up any different boundary.</p> <p>Evidence: Boundaries: Surveyors: Experts: Opinions: Questions of fact. The question of the location of a section line or a starting point is one of fact for the jury, and not one of theory, to be determined finally upon the opinion • of surveyors as experts.</p> <p>Boundary lines: Evidence: Opinions: Surveyors. In this case the only evidence of the location of a section line, which is made a starting point in the description of premises in a deed, is the opinion of a surveyor, based on his examination of records, deeds and abstracts and other documents from which he protracted his maps and plans, and not upon any data made known by testimony in the cause; it would be clearly inadmissible to disturb a tangible •and established boundary on any such evidence.</p>

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

<p>Justice's courts : Objection against long summons: Joining issue: Waiver. The objection that plaintiff in an action brought in justice’s court hacl improperly sued by a long summons is one that is waived by joining issue.</p> <p>Detention of property: Measure of damages: Value of its use. The measure of damages for the detention of property is the value of its use.</p> <p>Trespass: Declaration: Detention: Damages. Where a declaration in trespass for taking and detaining a scow expressly avers the detention for a considerable period, it cannot be said that damages for such detention are not allowable.</p>

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

<p>Contracts: Declaration: Contract price: Evidence: Value. Under a count upon a special contract as performed, which seeks to recover the contract price, evidence of the cost or value of the work contracted to be performed, is inadmissible ; and evidence that the cost exceeded the contract price is not perti' nont to corroborate the claim of the plaintiff, that by the contract he was himself to be the judge of the sufficiency of the work, as against an anticipated defense that the work was not done according to contract. ’</p> <p>Errors that do not prejudice: Second: Evidence. And with a record which discloses that under such pleadings and upon such proofs a verdict has been rendered for the plaintiff for the full contract price for work which it was shown proved substantially worthless, there is no room for saying that the jury could not have been misled, and that the error was therefore without injury.</p> <p>Contracts: Terms: Evidence. In an action upon an oral contract, where the parties differ as to the kind of a structure the contract called for, evidence that it would be impossible to build a more substantial structure at the place where this was built, for the contract price agreed upon, has no legitimate bearing upon the issue.</p> <p>Evidence: Contracts. Where, however, in such an action the parties are thus distinctly at issue upon the terms of the contract, evidence that the cost of performance of such a contract as the defendant set up would be greatly in excess of the contract price, would, it seems, have some bearing upon the probability of bis (being in error upon the facts; cases may be conceived in which such evidence might be very forcible, — much more so than it possibly could he in this case.</p>

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

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

<p>Appeal in Chancery from Superior Court of Detroit.</p>

<p>Divorce: Adultery: Evidence. Evidence in general terms as to continuous acts of adultery, which does not place dates or descriptions in such a way as to enable the charges to he identified by time, place or circumstance, will not support a decree for divorce.</p> <p>Divorce: Adultery: Evidence: "Witnesses. It would not be proper to grant a divorce on the ground of adultery, upon the unsupported evidence of one who has sworn to such a shameless course of conduct between defendant and himself as courted no concealment, and must have been observed by others, if true, and whose cross-examination shows him to have been guilty of manifest falsehood under oath in several material particulars, and where the witnesses brought in to corroborate him rather contradict than confirm his testimony.</p> <p>Divorce: Adultery: Evidence. Where a husband first filed a bill for divorce on the ground of cruelty, and afterwards abandoned that ground and by amendment set up adultery, and in his first bill set out as the principal item of cruel treatment the very facts growing out of an attachment between his wife and another of an extreme and discreditable character, upon which, in his amended bill, he based a charge of adultery, and where the proofs showed that he knew of the whole relations between his wife and such other person, and indicated that he probably connived at, and furthered their conduct, a decree should not be granted except upon facts and circumstances pointing very clearly to adultery.</p>

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

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

<p>Practice: Immaterial questions. Where, upon the case as presented on error, the judgment against the plaintiff below must stand if on the main point in the case the defendant prevails, however erroneous the rulings may have been on minor points, the court, having ruled the main point against the plaintiff, declines to consider the other questions raised..</p> <p>Election. A party may not take contradictory positions; and where he has a right to choose one of two modes of redress, and the two are so inconsistent that the assertion of one involves the negation or repudiation of the other, his deliberate and settled choice of one, with knowledge, or the means of knowledge, of such facts as would authorize a resort to each, will preclude him thereafter from going back and electing again.</p> <p>Election: Enticing away and harboring a minor: Assumpsit for wages: Action for the tort. The doctrine of election is applied in this case to preclude one from bringing an action in case for the unlawful enticing away and harboring his minor son, after he had first brought assumpsit for the son’s wages during the same period on the basis of an implied contract, and after a trial, had submitted the case to the jury, and upon their disagreeing, had discontinued the suit.</p> <p>Assumpsit: Implied promise: Wages of a minor: Express agreement. In an action of assumpsit by the parent for the wages 'of a minor son while being wrongfully harbored by one who had enticed him away from his father’s home, in the absence of any evidence or claim that the parties ever actually agreed together at all in regard to the minor’s services, it is impossible to refer the assumpsit to any real agreement of a date later than that of the defendant’s enticement, so as to infer that it rested on a distinct arrangement, which left the original wrong as a ground for a separate suit.</p> <p>Assumpsit: Action of tort: Repugnancy. Such an action of assumpsit necessarily, implied that defendant had the minor’s services during the time with the plaintiff’s assent; and this was absolutely repugnant to the foundation of a suit for the tort, which is, that the minor was drawn away and into defendant’s service against the plaintiff’s assent.</p>

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

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

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

<p>Declaration on insurance policy: Execution admitted: Circuit court rule 79. Where a declaration counts on a policy of insurance, and no affidavit is filed denying its execution, the execution of the policy is thereby under circuit court rule T9 admitted, and no evidence need be introduced to prove it.</p> <p>Insurance policy : Foreign companies: State regulations: Estoppel. In an action upon an insurance policy issued by a foreign company upon property in this state, it is not necessary to prove that the company had authority under our laws to transact business in this state; but the company is estopped to deny its authority, or to defend against its contract upon any such ground.</p> <p>Declaration: Insurance policy: Statement of place of execution : Variance. Under a declaration counting on a policy and stating under a videlicet that it was made in this state, without the usual statement preceding it of the actual place of its execution, proof of a policy made in Illinois is not a fatal variance in a case where it is certain the defendant was not misled or surprised; our rule in regard to declaring on policies was intended to get rid of such refinements in this class of cases.</p> <p>Insurance: Personal contract: Realty: Local laws: Foreign companies. A contract of insurance upon buildings is personal, and not real; and the circumstance that the liability to pay is made to depend upon an event to real property here does not make the contract a Michigan contract, or in any legal sense make this state the place of performance by the insurance company; nor does the fact that the contractee is a Michigan corporation impress upon the contract the quality of locality so as to cause our laws as to business done here by agents of foreign companies to affect it in point of law.</p> <p>Insurance: Foreign companies: State regulations: Contracts made abroad. The statute {Comp. L., 1871, § 1688) regulating the trsnsaction of the business of insurance in this state by the agents of foreign companies, does not assume to forbid the making of contracts of insurance abroad upon property here, nor does it assume to invalidate such contracts, hut applies only to operations within the state.</p> <p>Insurance: Foreign companies: State regulations: Contracts. Whether or not this statute could be construed to operate to render void at the election of insurers such insurances as they may effect here without compliance with its restrictionsQucere ?</p> <p>Declaration: Plaintiff: Use and benefit of another : Surplusage. The use of the phrase “for the use and benefit of” some person named other than the plaintiff, in the commencement of a declaration immediately following the name of the plaintiff, where no assignment is set forth and no allusion made in the body of the declaration to any other interest or title than such as the plaintiff held, has no force to make the issue different from what it would have been if the phrase had been left out.</p> <p>Insurance: Policy: Direction as to payment: Evidence. The occurrence in a policy, of a direction to pay the loss, if any, to some one other than the insured named in it, as his interest may appear, does not necessitate the proof, in an action on the policy by the insured, of any interest owned or held by such person in the insured property.</p> <p>Insurance: Policy: Title of insured: Realty: Contract of sale. Where a policy requires the fact to be stated if the title of the assured is any thing less than a sole, unconditional and entire ownership, and provides that it shall be inoperative if this requirement be not complied with, and the only statement in it of the title is by the word “their” prefixed to the description of the property, proof that the assured had at the time contracted to sell the premises, and that their vendee had paid the entire purchase price, would defeat the policy..</p> <p>Offers to prove: Practice. Where an offer to prove certain matters stated is refused, the case must be considered on error precisely as though the facts proposed to be shown had been established.</p>

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

<p>Indemnity lands: Swamp lands: State patent: Private entry: Public offering : Legislation. A patent based on a sale by private entry at the state land office, conveying “ indemnity lands ” of the state which bad never been offered for sale at public auction is held void; these lands, if not to be considered as included by intendment in the general designation of swamp lands, so as to be subject to the state regulations as to sales of such lands, were not subject to sale at all, for the want of any legislation providing for their sale.</p> <p>Lona fide purchases'. Where one knowingly, and by collusion with the deputy commissioner, has obtained a patent from the state of lands not subject to sale, and on the next day has made sale of them at a distant place to another, who had never seen the lands, but who paid for them almost double their valuation, they being wild and scattered lands, it will require a pretty strong showing to establish the bona jtdes of such a purchase.</p> <p>Information: Tacating a patent: Refunding purchase price: Decree; Script. Under an information to vacate a patent thus obtained, which treats the purchase from the state as made for cash, and asks no relief on any other basis, a decree that the purchase price be refunded in script is unwarranted.</p>

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

<p>Evidence : Express contracts; Prima facie case : Matters not alleged or required to he. A plaintiff is not usually required in the first instance, in order to maintain his part of the issue on a count setting up an express contract, to give express evidence of matters neither alleged, nor required to be alleged in the count.</p> <p>Promissory notes: Makers; Partnership: Declaration. It has never been deemed essential in framing a count by an indorsee upon a promissory note against copartnership makers, to specially allege the capacity of the firm to make notes, or to set forth specially a state of facts which would serve to imply it; it is not necessary for the plaintiff, by any positive averment or by positive proof, to negative a defense which in virtue of a general presumption would be intended not to exist.</p> <p>Partnership: Promissory notes: Presumptions: Burden of proof. When a member of a firm gives a note in the firm name, the presumption is, that it is given for a partnership purpose, and the burden of proof is on the copartnership to show the contrary if they claim such to be the fact.</p> <p>Promissory notes: Partnership: Evidence: Fraud. Where in an action against copartners upon a promissory note signed by the firm name, the plaintiff has shown simply the existence of the firm and who composed it, the making of the note by one of the firm in the firm name, the endorsement by the payee over to the plaintiff, the ownership by the plaintiff and the amount due upon it, it is not competent, upon the assumption that the plaintiffs cause of action is imperatively and irreversibly established, to rule out evidence tending to show that the note was fraudulent in its inception as against the copartncr- * ship, and that the payee not only knew this, but was a party to the fraud:</p> <p>Promissory notes: Fraud: Bona fide holder: Consideration: Presumptions. Where the only proof explaining the character of the plaintiff’s holding of a note, which is shown to be fraudulent in its inception as between the original parties, is, that he is “owner” of it, and that the payee endorsed it over to him before maturity, the inference would be that he gave no value, and was not a bona fide holder; for it must be intended in that state of things that the original party, not being able to sue upon the instrument himself, had turned it over to another to sue upon it for his benefit.</p>

<p>Specific performance: Bill of complaint: Contract: Part performance. Whether the bill in tbós case, for specific performance of an alleged agreement to convey lands, which does not disclose that the agreement was not in writing, could be sustained by proof of a parol contract partly performed: — Quaere?</p> <p>Equity pleading and practice: Specific performance: Averment of agreement. A bill for specific performance must set out a contract which is clear and definite ; and where the contract set up is very vague as to the kind and extent of the improvements which were to constitute the consideration of the promise sought to he enforced, and as to the time within which they were t* be made, no criterion is afforded by which the court can determine when the contract has been performed on the complainant’s part.</p> <p>Specific performance: Proofs: Contract: Family arrangement: Expectations. Where the proofs fall short of making out the contract of which specific performance is sought, or any contract or bargain at all, and at most indicate no more than a vague intention on the part of the defendant, who is complainant’s father, to give the land at some time or other to complainant in fulfillment of one of those family arrangements which are understood to rest on the will of the parties, and where each sees fit to rely on expectations and does not require a binding contract, they fail utterly to make out a case warranting the relief sought.</p>

<p>Equity jurisprudence: Title to lands: Improvements not made in good faith. "Where one after having tried to cheat another out of his estate by dealings behind his back with a third, and having so far succeeded as to get a colorable title, thereupon on the assumption that his inequitable conduct has gained him a position which assures success proceeds, in his own wrong and without misleading conduct by the innocent party, to expend money on the estate according to his own notions, and irrespective of the utility of the mode of expenditures to the true owner, and,then comes into equity to enforce his pretensions and get a ratification of his doings and title, the court will not aid him, on the one hand, by directly giving him the estate, or, on the other, by obliging the innocent object of such inequitable proceedings to pay him, at the peril of yielding the estate to him, any indemnity for his wanton expenditures.</p> <p>Impi'ovements made on lands of another; Wanton expenditures.* But while in such case the equity of the unoffending party should be protected in all its integrity, penalties should not be imposed on tbe offending one; and the latter should be subjected to no greater losses than are fairly and practically incident to the due protection and relief of the former, and such as must be taken as self-inflicted by the wrong-doer.</p>

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

<p>Fi'aud: Proofs. In this case, which is a suit to have a mortgage by complainant to defendant decreed to be given up and cancelled on the ground that it was obtained by fraud, it is held the proofs establish the claim get up by the bill, and that the testimony which the defendant himself gaye tended rather to confirm than to disprove it.</p> <p>Mortgage: Consideration: Fraud. A mortgage to secure defendant on a sale to complainant’s son of his interest in a business they had before carried on together as partners cannot be considered as within the promise the defendant claims complainant had made him on the formation of the firm, that she would secure him against loss by her son in the partnership.</p> <p>Fraud: Fiduciary relations: Abuse of confidence. One who has obtained from a woman who is old and feeble in intellect, and who has put herself into his hands in a transaction which specially concerned his interests, a mortgage as security for the debt of another, without the knowledge of her family, is bound to show in defense of the validity of his mortgage, that she fully understood what she was doing, and was actiDg freely, and that he has not abused the confidence thus reposed in him.</p>

<p>Declaration: Common counts: Assignment: Evidence: Bill of particulars. Ia an action on the common counts to recover the price of fruit trees sold and delivered, the admission of evidence of an assignment of the claim is held not error under a statute which permits an assignee to sue in his own name; all needful notice of the nature of the demand may be obtained by a bill of particulars ; and an amendment to cure the want of averment of an assignment would be matter of course.</p> <p>Delivery: Place: Railroads: Stations: Presumptions: Evidence. It is fairly presumable that articles ordered to be “ sent” will be delivered by a railroad company at their depot, in the absence of any other usage or agreement, and that the vendor will not he required to accompany them and make further delivery; and evidence in this case of a custom of fruit-tree sellers to make delivery at the stations along railroad lines, being in conformity with the legal presumption, could have worked no injury to the defendant.</p> <p>Evidence: Damages: Written order. In a suit for the purchase price of trees sold and delivered under a written order which specifies the number of trees and the prices, the delivery having been proved and the trees shown to be of the quality and kinds ordered, it cannot be objected that there was no evidence authorizing the finding of the amount of damages, where that agrees with the amount of the order.</p>

<p>Application for Mandamus.</p>

<p>Equity jurisprudence: Application of insurance moneys: Mortgages, Where, in pursuance of an oral agreement to secure another for becoming surety for him, one had executed a mortgage to such surety on a house and lot, and had the house insured for the benefit of the mortgagee, and a subsequent purchaser of the premises subject to said mortgage had afterwards wrongfully surrendered such policy and taken out a new one in his own name for the full insurable value of the property, and without any provision for the mortgagee, the decree in a suit in equity brought by such mortgagee against such purchaser and the insurance company, compelling the application of the insurance moneys to the satisfaction of the demand secured by the mortgage, is held to bo correct, and is affirmed.</p> <p>Equity pleading and practice: Parties. To such suit in equity the mortgagor is not a necessary party, though he might doubtless have been joined as a party; and his grantee has no interest in having him made a party, since in no event could he be entitled to any relief against him.</p> <p>Equity pleading and practice: Decree: Application of insurance moneys. The mortgage having been given as security for the mortgagee’s haying signed a note as surety for the mortgagor, the decree compelling the application of such insurance moneys to the payment of the mortgage, should be conditional on the surrender or satisfaction of the note, as well as the release of the mortgage.</p> <p>Equitable maxims. No one shall obtain a benefit by his own fraud and wrong, and he who ignorantly does an injury shall knowingly make reparation, are equitable maxims applicable to this case.</p> <p>Equities. In a contest between one who is seeking to make a gain and one who is struggling to avoid a loss, equity will favor the latter.</p> <p>Stipulation for insurance: Mortgage: Subsequent purchaser: Notice. The stipulation for insurance for the mortgagee’s benefit, being intended to afford security supplementary to and connected with the mortgage, and to keep tbe mortgaged property itself so far intact as a means of security as to perpetuate the safety of the mortgagee’s interest in case the buildings should burn, was in equity a sort of adjunct to the mortgage, and was binding on the mortgagor and all others in his shoes with notice.</p>

<p>Promissory notes; Seaond mortgagee: Payment: Equitable assignment: Subrogation. The maker and endorser of a note secured by a mortgage are not released from their obligation to pay it by the fact that it has been taken up . by the holder of a second mortgage with whom they had no relations. Payment of a first mortgage by a second mortgagee makes him in equity an assignee of such first mortgage, and he may resort to all suitable remedies to enforce payment.</p> <p>Pleadings: Declaration on special contract: Promissory notes. If it can be shown that paper sued upon is not a promissory note, where the declaration treats it as such and is not adapted to the case of any other special contract, the suit will fail.</p> <p>Promissory notes: Time of payment. A promise to pay “on or before” a day named, states the time for payment with sufficient certainty for the purposes of a promissory note. A note so drawn is due on the day named, and not before; the maker may pay it sooner if he chooses, but this would only be a payment in advance of his legal liability.</p>

<p>Plea: General issue: Special notice .* Want of consideration: Prohibitory liquor law. Under our statutory general issue, pleaded to a declaration upon the money counts on an accepted order, it is competent, as it was under nonassumpsit, to show, without giving special notice of such defense, that the instrument sued on was never valid, — as, by evidence that the sole consideration for it was the sale of spirituous and intoxicating liquors, contrary to the laws of Michigan,</p>

<p>Foreclosure: Redemption: Part payments: Affirmance. Part payments made after foreclosure by advertisement, and received with, the clear understanding that the redemption was to be completed by paying the whole sum necessary for that purpose within the year allowed by the statute, are in affirmance, and not in avoidance of the sale, and their acceptance does not operate as a waiver of the foreclosure.</p> <p>Equity jurispi'udence: Relief against inevitable accident; Statutory forfeitures: Foreclosure: Redemption. Though courts of equity have large powers for relief against the consequences of inevitable accident in private dealings, and may doubtless control their own process and decrees to that end, they have no such power to relieve against statutory forfeitures; and they are powerless by their decrees to extend the time for redemption on a statutory foreclosure, where redemption within the time has been prevented by accident and misfortune, or by an unavoidable mental and physical disorder.</p> <p>Statutory foreclosures : Inadequacy of price. Inadequacy of price cannot vitiate a statutory foreclosure sale which is otherwise fair and regular; for the owner of the equity of redemption cannot be prejudiced thereby, since he may always redeem within the year, by refunding the amount paid, with interest at the rate fixed by the statute.</p>

<p>Railroads: Engineer: Disregarding instructions: Injury: Contributory negligence. An engineer, who in running a railroad train is injured while he is disregarding the instructions which the railroad company had issued for his guidance, and is therein guilty of gross negligence contributory to the injury, cannot recover damages of the company.</p> <p>Railroads: Engineer: Misplaced switch: Risks incident to the employment. Whether an accident occasioned by a switch being misplaced, whereby a train is run upon a side track and against cars standing there, is not within the risks assumed by an engineer in entering into the employment of the company to run its engines: — (¿ucere?</p>

<p>Certiorari: School-district: Organization: Assessor: Remedy. CertioraH addressed to the assessor of a school-district is wholly unsuited as a remedy to test the . legal organization and existence of the school-district.</p>

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

<p>Attorneys: Duty to clients: Zand titles. Where a client, seeking to acquire title to land, refused to take up a claim upon it of which his attorney had notified him, and expressed the opinion that the claim referred to was of no consequence, the attorney violated no confidence in baying up the claim in the interest of another party; and the title thus obtained by the latter would not be invalidated by the previous relations of such attorney with the other party.</p> <p>Evidence. A party cannot repudiate part of the evidence given in his own behalf,, and claim benefit from the rest.</p> <p>Ejectment: Defense: Attorney and client: Breach of duty. Whether in an action of ejectment, which turns upon the legal title, it would be available as a defense, if shown, that plaintiff's title was obtained through a violation of duty owed to defendants by one whom they had employed as an attorney to aid them in perfecting their title: — Qucere?</p>

<p>Error to Van Burén Circuit.</p>

<p>Error to Van Burén Circuit.</p>

<p>Construction of statute: Title to land under Comp. Z., §§ 13hh-1353. Whether the title designed to bo vested in a county by the act of 1839 {Comp. Z., 1871, §§ 13lfh-1358) for recording town plats, be a fee simple, or only a conditional fee, or possibly a perpetual easement merely, is not very clear, but the purpose is nevertheless manifest to vest in the county such a title as would, enable the public authorities to devote the lands to all the public uses contemplated, in making the plan, and charge them with corresponding obligations when the title should vest. No title in the nature of private ownership was meant to be given by it. •</p> <p>Town plats : Vesting of title to land thereunder: Acceptance. Whether a plat of land for publicases, made under the act of 1839 {Comp. Z., 1871, §§ 13hU-1353)y is to be regarded as a grant, or as an offer to dedicate, or partakes of the nature of both, some action by competent public authority, by way of acceptance, is necessary before it can have the intended effect of making public highways of the streets-laid out upon it.</p> <p>Streets: Dedication of land: Acceptance. If an offer to dedicate land to public uses is not accepted before any considerable lapse of time, it must be presumed to be withdrawn, unless the circumstances make it a continuous offer.</p> <p>Grant of land: Acceptance: Presumptions: Ways. A grant of land must be accepted before it can take effect, and although acceptance may be presumed when the grant» is beneficial, there can be no conclusive presumption that a grant of land for a public way is so. It may be a burden rather than a benefit.</p> <p>Ways : Acceptance in part of grant of land. Partial acceptance of an offered grant of land for the purposes of a public street, will, with the consent or acquiescence of the donor, establish the street to the extent of public occupation, but no further.</p> <p>Presumption of withdrawal of unaccepted offer of land. An unaccepted offer of land for public uses, unless there are facts equivalent to a continuous renewal of the offer, cannot be considered open after the lapse of time enough to‘bar all actions for the recovery of lands under the statute of limitations.</p>

<p>Error to Van Burén Circuit.</p>

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

This writ was brought to review proceedings under the county drain law to establish a drain called the “ Road Ditch,” in the township of Huron, Wayne county.

The writ is sought in this case to require the respondent to vacate an order appointing a receiver over the Port Huron & Gratiot Railway Company and to dissolve an injunction restraining the majority of the directors of said company from the management and control of the corporate business.

<p>Application' for Mandamus.</p>

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

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

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

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

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

<p>Set-off: Payment: Pue bills payable in chattels: Demand. Plaintiffs’ due bills payable in lumber at their yard are held not admissible, either as set-off or as payment, in an action for the purchase price of lumber bought by defendant on the basis of a cash purchase, and including something additional for delivery at a distance from the yard, where the purchase was made without reference to such due bills, and without notice to the plaintiffs that defendant held them, and before any demand had been made for lumber on them.</p>

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

<p>Application for Mandamus.</p>