Volume 32 — Michigan Reports

<p>Criminal law: Jury trial: Right to give general verdict. The right of trial by jury, being secured by constitutional provisions, cannot be substantially changed in its character by legislative enactment; and one of its substantial elements is the right of the jury in criminal cases to give a general verdict on the merits.</p> <p>Criminal law: Jury trial: General verdict: Insanity: Special finding. And while it would not be competent for a jury to withhold a verdict of not guilty on a reasonable doubt of insanity, though they were unable tó find specially, as required by the statute (Laxos of 1878, Act No. 168), that the prisoner was insane, yet where they agree that the prisoner was insane, and that he would have been guilty if not so, they are at liberty, if they choose, to find that fact specially; and such a verdict, when rendered, will not be treated as unauthorized.</p> <p>Statute construed: Insane persons: Restraint of liberty: Recovery: Proceedings for release. The statute (Laws of 1873, Act No. 168) providing for the confinement in the insane hospital of the state prison of such persons as are acquitted of murder and other high crimes on the ground of insanity, until discharged by the governor on receiving the certificate of the circuit judge of the circuit where the trial was had and the medical superintendent of the state insane asylum, upon an examination made by them after having been summoned for that purpose by the prison inspectors, that the prisoner is no longer insane, fails to furnish adequate means for the enforcement of the remedy provided against the restraint being continued beyond the necessity which alone can justify it, and is objectionable on that ground.</p> <p>Constitutional law: Personal liberty: Due process of law. This statute is moreover held to be in plain violation of the constitutional safeguard against restraints of personal liberty without due process of law; the proceedings contemplated by it are not only inquisitorial and ex parte, but they cannot be set in motion except at the will of the prison inspectors, so that practically the liberty of the person confined is left to depend upon the uncontrolled pleasure of the inspectors.</p>

<p>Possession of land: Appeal: Bond to secure rent: Destitution of premises. It is no defense to a recovery on a bond to secure rent, given on an appeal in proceedings under the statute to obtain possession of lands, that the obligee in such bond had never obtained restitution of the premises under the judgment in his favor, where he was prevented by order of the court, on motion of the principal obligor in such bond, from getting possession until after the expiration of the term for which he held the premises from his lessor and until after his right to possession had terminated; this case and Delashman v. Berry, 22 Mich., 516, distinguished.</p> <p>Decisions: Construction: Implied limitations. The language of a decision, is to be construed not as a statement of abstract propositions without limitation, but in connection with the particular facts of the case and the specific matters had in view when the language was used; and when applied to an essentially different state of facts, is to be understood as subject by implication to many limitations and restrictions not expressly stated.</p>

<p>Mortgages: Release: Corporation: Receiver: Evidence: Secretary. Amere return or order of a circuit court commissioner to whom it had been referred to appoint a receiver of the company, stating the appointment and his action thereon, without any showing of confirmation, is not sufficient evidence that the assets were in the hands of a receiver, to be entitled to-any consideration as invalidating a release executed by the secretary, of a mortgage which had previously been satisfied.</p> <p>Release of mortgage: Corporation: Secretary: Official character. A release* of a mortgage to a corporation which hacl "been previously paid, executed by the last secretary of the company, who is not shown to have resigned or lost his official character, is held to have been lawfully executed; mere lapse of time would not destroy his official character, and he was properly authorized to do the formal act of releasing a satisfied mortgage, and could do it anywhere.</p> <p>Corporations: Receivers. A corporation cannot apply in its corporate capacity and name to be put into the custody of a receiver.</p> <p>Land contract: Time: Delay: Consent: Waiver: Statute of frauds. 'Where a land contract provides for the payment of part of the consideration by conveying other land described free and unincumbered within a year, or-ín lieu thereof eight hundred dollars with interest, the time limited is not so far of the essence of the contract that it may not be waived; and if waived, the right to pay by conveying the land within a reasonable time is within the protection of a court of equity, though not renewed by a written agreement.</p> <p>Contract to convey lands within specified time: Delay: Waiver: Estoppel, And the defendants in this case having- expressly consented to delay in the performance of such a stipulation, and received money in consideration thereof, are held not warranted in resisting performance, which was tendered after only a brief delay, and when there had been no injurious change in values or other circumstances.</p> <p>Contract to convey lands: Title from third person. The tender of a title which satisfied the requirements of the stipulation in other respects would not be objectionable because it comes not directly from the party to the contract, but from a third person.</p>

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

<p>Equity pleading and practice: Specific performance: Contract: Execution: Agent In. a bill for the specific performance of a contract made by an agent it is unnecessary to set l'ortli the manner of its execution or any thing more than the fact of the execution, and the contract must then be proved as a valid one.</p> <p>Contracts: Execution by agent: Proof of authority: Ratification. The absence of proof of written authority to an agent to execute a land contract is unimportant in a case where there is full proof of ratification by both parties, by demand and receipt of payment, and by iiossession and improvement.</p> <p>Specific performance of land contract: Conflicting interests of defendants: Inter-pleader. Where there are conflicting interests set up by the vendee in a land contract and his wife and one to whom such vendee has assigned in trust for creditors, it is competent for the vendor, in his bill for specific performance, to ask to have the respective rights of these conflicting claimants determined, for this is necessary to the determination as to whom conveyances should be made, and on what terms; and the bill in such case, where there is no conflict concerning the complainant’s rights or duties, resembles somewhat a bill of interpleader, and rests on similar equities.</p> <p>Equity pleading and practice: Specific performance: Parties: Appeals: Errors that do not prejudice. To such a bill the beneficiaries under the trust, i. e.y the creditors of the vendee, whether allowable parties or not, are at least not necessary parties; and an objection for the want of such parties loses all force in an appeal (which lies only in favor of persons .aggrieved) from a decree which, so far as such beneficiaries are concerned, directs the property to be conveyed in exact accordance with the claim set up in the appellants’ pleadings.</p> <p>Equity pleading and practice: Appeals: Decree: Errors that do not aggrieve the appellants. The decree in this case is affirmed as not being prejudicial to the rights of the appellants, though it was not as favorable as it ought to have been to another defendant who did not appeal.</p> <p>Land contract: Assignment: I-Xusband■ and wife: Homesteadf After an assignment of a land contract to another in trust for creditors, it is not competent for the wife of the assignor, who had not joined in the assignment, by her arbitrary choice to carve out of parts of several parcels covered by the contract a homestead location, and thereby fix at her own caprice the boundaries of the premises which were to be regarded as not included within the grant.</p>

<p>Error to Van Burén Circuit.</p>

<p>Infancy: QhaUel mortgage: Executory contract: Affirmance. A chattel mortgage given by an infant to secure the payment of money borrowed for a business enterprise is, so far as the right to enforce it by taking possession and making sale is concerned, only an executory contract, and, whether absolutely void or only voidable, cannot be made binding by any act of affirmance while the infancy continues.</p> <p>Infancy: QhaUel mortgage: Disaffirmance: Restoring consideration. A ruling in a replevin suit brought by the infant while yet a minor to recover possession of chattels taken from her by virtue of such a mortgage, that she cannot disaffirm the contract made by the mortgage without first restoring the consideration, is held erroneous.</p> <p>Infancy: Voidable contract: Affirmance: Majority: Estoppel. The ground on' which it is held that one who by means oí a voidable contract made in his infancy has obtained possession of property^which he retains on coming of age may not disaffirm the contract and at the same time retain the benefit derived from it, is, that his conduct after he has reached the ,age of discretion has precluded his relying upon an infant’s privilege, and what he may have done imeviously cannot bind him either by way of contract or of estoppel.</p>

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

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

<p>Transcripts of justice's judgments: Affidavit of •amount due: Execution sales. An affidavit of amount due is requisite to authorize the clerk of the circuit court to enter and docket a transcript of a justice’s judgment; and • a sale of lands upon an execution issued out of the circuit court upon • such a judgment is invalid in the absence of such affidavit.</p> <p>Evidence: Affidavit of amount due: Secondary evidence. Where no showing has been made that such affidavit had been searched for, or Vas lost or destroyed, the admission of evidence by the deputy clerk that an affidavit of amount due wa’s brought to the office after • the transcript of the judgment was left, and that he filed it, but the contents of which he was unable to tell, or who made it, or the title of the case in which it was used, in the absence of any showing what amount the affidavit stated to be due, or whether, it stated any specific amount, is held erroneous and incompetent as proof of the filing of the requisite affidavit.</p> <p>Practice: Assignment of error. Where in ejectment the plaintiff claimed title through such an execution sale and there was no other showing than by such evidence of the filing of an affidavit of the amount due, and on the cause being brought up for review on writ of error, the only assignment of. error was, that the court erred in requiring the jury to find for defendant, the judgment below was affirmed.</p>

Appeal In Chancery from Jaclcson Circuit. This was a bill for partition. The defendants appear from the bill to claim interests which are distinct in separate parcels of the land' of • which partition is sought. The bill also discloses that persons not made parties have like interests jn the-lands with those which the -complainant claims to hold.

<p>23roceedings to open streets: Entirety: Notice. Proceedings to condemn private lands for a public highway are to he considered as an entirety; and if as to any of the parties no valid street was laid in consequence of the1 want of proper notice to any of the landv owners, the street cannot he regarded as lawfully established as against those who were properly served, so as to compel them to pay assessments laid upon them for hen-efits from its establishment.</p> <p>Proceedings to open streets: Notice: Personal set'viee: Publication. Whether, where all the land owners are shown to have been personally served, a defect in' the publication of the notice provided for by ’ the charter of Detroit would be fatal to proceedings to open streets through private lands : — Qucere ?</p> <p>Proceedings to open streets: Defect in publication of notice. Where, however, it appears that there was a defect in the publication of such notice, and does not appear that all the land owners were personally served, the proceedings are held invalid, though the party making the objection was himself personally served.</p>

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

<p>Wills: Construction: “Heirs:” Issue. The word “htñrs” is construed to denote issue in a will granting* a residuary devise to the testator’s sister “and her heirs forever; and in failure of heirs all to fall and he "bequeathed to the minor children ” of a deceased brother named, where it appeared that such sister and the testator were both unmarried and lived together with their mother when the will was made and until the testator died, and that he had five brothers and one sister, besides the devisee named, living when the will was made, and also, besides the minor children of the deceased brother named in the will, above twenty nieces and nephews, all of whom survived him; giving this word such a construction makes all parts of the will operative in a mode in perfect harmony with what may be fairly considered as the meaning of the testator.</p> <p>Will construed. The circumstance that the will provided that the sister named as such devisee should support the mother and pay the minor children named fifty dollars within a week after the testator’s death, where she had received a bequest of certain personal estate also, cannot prevail to enlarge the sister’s estate in the realty against the clear purpose of the will.</p> <p>Devise construed: Limitation. Such a devise will not be construed as giving the sister an estate in fee defeasible in the event of failure of heirs or issue during the lives of the minor children mentioned, thereby rendering the limitation over void.</p> <p>Devise: lístate tail: Remainder: Contingent limitation. This devise, considered in the light of the facts of the case and in connection with the other provisions of the will, is construed as designed to grant to the sister named what at common law would be an estate tail, with remainder over to the minor children named, in the event of her dying without issue of her body; and under our statutes (Comp. L. 1871, §§ h070-l), though estates tail are abolished, such a remainder would be valid as a contingent limitation upon a fee, and would vest in possession on the death of the first taker without issue living at the time of such death.</p> <p>Devise: Limitation: Remoteness: Indefinite event: Remainder: Contingency. This limitation over to the minor children named is not open to theobjeotion that it is too remote for the reason alleged, that it contemplates failure of issue as the event at some indefinite future time; hut, on the contrary, the time fixed for the failure of issue of the sister is at her death, and the event contemplated was the death of such sister, the first taker, without children living; and the vesting of the remainder in possession is upon the contingency of the death of the first taker without issue then living, and pending the life of one or more of the children mentioned as second takers.</p> <p>Denise.- Rule against perpetuities. The terms and sense of this devise necessarily excluded all chance of infringement of the rule against perpetuities, and hence it was not subject to valid objection on that score.</p> <p>Identity: Names. In the absence of circumstances to cast doubt upon the fact of identity, the identity of name is enough to raise a presumption of identity of person.</p> <p>Contingent estates: Alienation: Deed of bargain and sale. A future contingent estate is alienable in the same manner as an estate in possession, and may be conveyed by a deed of bargain and sale without covenants.</p>

<p>Statute of exemptions: Blacksmith: Manufacturing wagons, etc., for sale. Whore one whose principal "business is blacksmithing has manufactured, during his leisure hours wagons and whiflle trees, etc., for sale, designing from the proceeds to replenish his stock to enable him to continue his business, and it has been his custom and part of his business to manufacture and sell sucli work, all such manufactured articles, not exceeding* in value the limit fixed hy the statute, are exempt, not only while in the course of construction, hut after their completion and while "being* offered for sale.</p> <p>Statute of exemptions: Articles used to carry on business. It would he too narrow a construction of the statute to confine its operation to sucharti. cles only as are absolutely necessary to he used in carrying on the business in which one is principally engaged.</p> <p>Blacksmithing: Ironing tvood-worh of wagons: Statute of exemptions. Purchasing the wood-work of a wagon in order to iron it off and complete it for the purpose of selling it and thus enabling a blacksmith to profitably employ the time not required for his custom work is not so far foreign to the business of blacksmithing as to exclude such manufactures from the protection of the statute.</p> <p>Statutes of exemptions: Construction. Statutes of exemptions are remedial in their nature, and are to be construed not strictly, but liberally, for the purpose of carrying out the wise and humane objects in view.</p>

Habeas corpus and Certiorari. The prisoner was held by the sheriff of Van Burén county by virtue of his surrender by his special bail in an action commenced by capias by tbe Paw Paw railroad company against said Stephenson, and now pending in tbe Van Burén circuit.

Suit was brought in the Ionia circuit by Albert Yan Vleck against the relators upon the common counts with a promissory note annexed. The plea was the general issue. The cause was duly noticed for inquest under circuit court rule ninety-nine for the November term, 1814. No affidavit of merits was filed. On the first day of term the relators moved, on affidavits showing the absence of material witnesses on their behalf, for a continuance of the cause.

<p>Mistake: Title: Caveat emptor. "Where one -who has "been, made defendant to a foreclosure suit as subsequent purchaser, believing he had title to the premises, has agreed, in consideration of an extension of time for two years, personally to pay the decree, he cannot avoid liability on his undertaking by a showing that his title to the premises had proved defective, and that he had made the agreement upon the belief that his title was good; such a case is a plain one for the application of the rule caveat emptor.</p>

<p>Contracts: Incleftniieness: TJncerlainly. An oral agreement between the owner of lands and another, that the latter was to go on certain lands (one hundred and sixty acres) and improve them and pay the taxes and act as the owner’s agent in regard to other lands, and that the owner at liis option was to pay him for the improvements or to deed him sixty acres of the land in full payment thereof, which fails to fix any time of performance, or the kind or extent of improvements, or when they were to be made, or where, and which designates no parcel of land to be given in payment, nor declares whether it shall or not be improved land, is so indefinite as to be void for uncertainty.</p> <p>Contracts: Uncertainty: Part performance. Whether a contract void under the statute of frauds, but which if in writing would have been valid, is validated by part performance or not, such a contract as the one in question here could not be maintained on any such basis.</p> <p>Contracts: Improvements to lands: Possession. Where under such an arrangement the plaintiff was not put in possession by the owner, but first went upon another farm for a year, and then, without any further arrangement, went on this land, the contract being void áb initio, there is no legal basis for holding that he can be regarded, as ever having had any possession which could be referred to it.</p> <p>Improvements: Common counts: Quantum meruit: Charge to the jury: Contract. In an action to recover on the common counts for improvements made under such an arrangement, a charge to the jury, which, though holding the contract void under the statute of frauds, yet in instructing them on the theory that it might he validated hy part performance, laid before them the original agreement as creating contract relations, and permitted a recovery in precise accordance with its terms, is held erroneous.</p> <p>Instructions to the jury. Charges in this case are held erroneous, as not being sustained by the testimony, but in conflict with it.</p> <p>Landlord and tenant: Impi'ovements: Agreement A tenant cannot recover for repairs made, except upon a distinct agreement, which is required to have like elements of certainty in it as are essential to any other contract of employment.</p>

<p>Special verdicts: Special questions to jury. The power to find special verdicts is not taken away ky the statute authorizing special questions to he submitted to the jury (Comp. L. 1871, § 6026); that statute contemplates the putting of special questions in explanation of a general verdict, hut it in no way destroys the competency of the former practice.</p> <p>Special verdicts: Technical ending: Mnding of facts. The want of the technical conclusion commonly inserted, with an alternative iinding according as the court may determine as to the law, does not affect the force or validity of a special verdict; where the jury find the facts, they find for the party who should prevail on 'those facts, and he is entitled to judgment.</p> <p>Ilepleoin: Possession: Chattel mortgages: Finding of facts. A finding that a plaintifi; in replevin, at the time the defendants took away the property in question, held valid chattel mortgages upon it on which payments were in default, would entitle him to prevail, in the absence of any finding that the defendants stood in any relation to the iDarties to the mortgages, such as qualified them to assail these securities.</p>

<p>Statute of descents: Designated relatives: Preferred classes: Degrees of kindred. Our statute of descents (Comp. L. 1871, § hS09) having classified heirs hy a designation of relationship instead of hy computation of degrees of kinship, it is only when no persons are found answering to the designation that resort is had to the computation; and when under the statute an estate passes to designated relatives, it does so because of the particular relationship, and not because the persons who take are of kin to the intestate within any certain degree measured hy some arbitrary standard or mode of computation.</p> <p>Statutes of descent: Brother's and sisters: Half-blood. When the statute of descents mentions brothers and sisters generally, those of the half-blood are included.</p> <p>Law of descents: Designated classes: Exclusion of the half-blood: Statute construed. The provision of statute (Comp. L. 1871, § hSIS) that “kindred of the half-blood shall inherit equally with those of the whole blood in the same degree, unless the inheritance came to the intestate by descent, devise or gift of some of his ancestors, in which case all those no.t of the blood of such ancestor shall be excluded from such inheritance,” if understood as a qualification of the whole statute of descents, must be applied distributively to each of the designated preferred classes, and as designed to favor the 'whole hlood of the particular class only, and not to pass the inheritance over to a subsequent class so long as any of the preferred class remain; and the half-blood are only excluded when there are others in the same statutory class who are to be preferred by reason of being of the blood of the ancestor from whom the estate came to the intestate.</p> <p>Law of descents; Half-blood; State policy. It has always been the general state policy of Michigan to put the half-blood on a footing of equality in most respects with the whole blood in the law of descents, a discrimination against the half-blood being the exception; and such a discrimination, therefore, is not to be extended by construction beyond the obvious intent.</p> <p>Descent of property: Ancestral estate: Blood of the ancestor'; Bather’s mother Brothers and sisters of the half blood, where an intestate who had inherited his estate from his father left as his nearest surviving kindred his father’s mother and the children of his mother’s second marriage, the brothers and sisters of the half-blood take, rxnder our statute of descents, in preference to the father’s mother, notwithstanding the latter is of the same degree of kinship to the intestate with the former, computed by the rules of the civil law, and is of the blood of the ancestor from whom the estate came to the intestate, while the former are not.</p>

<p>Assault and battery: Damages: Evidence: Profile: Theatrical performers: Values. In an action for damages for an assault ancl "battery evidence of the price plaintiff was paying per week for the board of himself and family, and of the value of the joint services of himself and wife in then-occupation of theatrical performers, and of the proportion which his services were worth, is held not open to the objection that it is not within • the declaration, which, besides setting out various immediate items of injury and suffering and expenses, avers a hindrance in his'affairs and a loss of profits which he would have derived from his occupation and business as a theatrical performer.</p> <p>Torts: Damages: Accuracy: Evidence: Business swroundings. Inability to compute with accuracy the extent of actual pecuniary damage which resulted from the Wrongful act complained of, is no ground for the exclusion of such information as may he had, hut the wrong-doer must bear the risk, if there he any, of not reaching an exact result from a showing of all the circumstances and business surroundings of the person on « whom he has inflicted an injury.</p> <p>Profits: Evidence: Theatrical performers: Joint services: Value. Evidence in such an action of the value of the joint services of plaintiff and his wife, where they were accustomed to engage jointly, could not prejudice the defendant under rulings which limited the recovery to the plaintiff’s own share of the joint earnings.</p> <p>Evidence: Profits: Actual engagements. Evidence of the actual gains and engagements of a plaintiff in actions of tort is admissible as one means of reaching the probable profits and losses.</p> <p>Business: Value: Theatrical performers: Locality. And where one’s business is not local, but extends generally over the country, like that of a theatrical performer, the opinions and proof of value cannot be confined to the locality of the injury, or to any other locality.</p> <p>Assault: Provocation: Evidence: Bes gestee. Evidence of the plaintiff’s acts and purposes in a matter which the defendant has put forward as being the provocation to the assault, and in mitigation of it, is relevant as explaining the surrounding circumstances.</p> <p>Instructions to the jury: Inconsistency. Certain charges complained of as inconsistent and irrelevant are held not to be so.</p> <p>•Charge to the jury: Comments on facts: Abstract propositions of law. Com-' plaint that the court commented upon matters of evidence, and remarked upon their significance, is held to be unfounded. It is proper to direct the minds of the jury to the legal bearing of the facts, and to caution them, if needful, against giving undue importance to unimportant things. Instructions to the jury are not to be confined to the mere laying down of abstract propositions of law.</p> <p>Instructions to the jury: Construction: Particular phrases or sentences. It is not allowable in reviewing instructions to the jury to consider particular sentences or phrases as if they were independent, but they must be construed with their context.</p> <p>Assault and battery: Exemplary damages: Malice. Vindictive or exemplary damages are not improper in a case of willful and malicious assault and battery.</p> <p>Damages: Pecuniary losses: Malice. It is not an open question in this, state, that damages are to be given not only for grievances beyond pecuniary losses, but also in accordance with the malice of the offender.</p> <p>Torts: Excitement: Unreasonable anger: Voluntary intoxication. Ho one can claim exemption from responsibility by reason of excitement when his anger is unreasonable and results from a neglect to use ordinary-self-control. Ho one has the right to allow his temper to become uncontrollable; and this can no more excuse a wrong inflicted than could voluntary intoxication.</p> <p>Torts: Damages: Instructions to the jury .* Discretion: Good sense. Incases like this, where all the surroundings are placed before the jury, and where the damages are so largely discretionary, it is'utterly impossible to fix any very precise rules to guide the jury, beyond, such cautions as may guard them against allowing scope to prejudice and passion; but much must be left to the general sense of jurors, as representing -what may be regarded as the common sense of ordinary men on similar facts.</p>

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

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

<p>Replevin: Jurisdiction: Affidavit Tlie jurisdiction to issue the writ of re-plevin in the circuit court does not depend under our statutes upon the affidavit; blit the statute contemplates the issuing of the writ before any affidavit is made, but provides that it ‘shall not be executed till the affidavit is made and annexed to it.</p> <p>Replevin: Affidavit: Olerical defects: Waiver: Pleading to the merits. Mere clerical defects in an affidavit annexed to a writ of replevin are waived by pleading to the merits.</p>

Brror to Huron Circuit. Defendants in error sued plaintiffs in error in trover for ■certain logs cut on lands formerly belonging to one Kingsley. 'To prove their title they introduced in evidence a written ■contract, whereby Kingsley sold to them all the merchantable pine timber on said lands at a dollar per thousand feet, board measure, to be removed within three years from the ■date of the contract; and also proved title to the lands in Kingsley at the time the contract…

<p>Application for Mandamus.</p>

<p>Wills: Bequest: High school; Uncertainty. A bequest in a will to a village, of “fifteen thousand dollars to he used m the erection of a school building to be used as a high school and to be suitable for that purpose,” is not void for uncertainty or indefiniteness.</p> <p>State policy: Inference: Legislative act. The special enabling act, passed by the legislature of 1873, in reference to this specific bequest, negatives any inference of the existence of a general state policy opposed to all connection between village government and school administration which is applicable to this specific case.</p> <p>Cities and villages: Capacity to ialce personal property: Trust It is the gen- . eral doctrine in this country that cities and villages may take personal property in trust for all purposes in keeping with or in furtherance of the real and final objects meant to be accomplished by their creation; and this rule must be recognized as operating without exception, unless some plain regulation or condition exists to exclude it.</p> <p>Municipal corporations: Morality and knowledge: Education. These municipal bodies being political organisms contrived and instituted for the better government and happiness of society, and dependent upon, and intended to promote, “morality and knowledge,” it cannot be urged on general principles that education is something so distinct and foreign as. to forbid all connection.</p> <p>Villages: Capacity to take bequests. The objection of incapacity of the village to take the bequest in question is held not well taken.</p> <p>Villages: Bower to administer trust: Suit at law to obtain possession of the fund: Immaterial questions. Whether or not there be a present lack of power in the village to fitly administer the trust, is immaterial in a suit at law to obtain possession of the fund, since if when the fund is reduced to ppssession further power is needed to enable the village to carry out the will of the testator, it is entirely competent for the legislature to grant it.</p> <p>Executor's bond: Residuary legatee: Action on the bond: Suit for a legacy: Irrelevant objections. An action upon a bond given under the statute {Comp. L. 1871, § It366), where the executor is also residuary legatee under the will, conditioned for the payment of the debts and legacies, where the breach assigned is the non-payment of a legacy, is not an action upon the bequest itself, nor specifically and strictly for the legacy; and the objection to such an action, that a suit at law cannot be maintained in this state for a legacy, if correct as an abstract proposition, has no relevancy to the case.</p> <p>Residuary legatee's bond: Preliminary order: Record: Waiver: Estoppel. An objection that the bond in question was given without any specific jirelimmary order of the probate court to allow a residuary legatee’s bond, but under an order for tlie ordinary bond of an executor, is not borne out by the record, which shows‘that the order made simply exacted a bond in a penal sum mentioned, with sufficient sureties, “as required by the statute in such case made and provided,” and was applicable, therefore, to either kind of bond; and the objection is not sustained where it appears that the bond in suit was given and received in compliance with such order.</p> <p>Pleading: Declaration: Technical omissions: Demurrer: Objection to evidence. Whether or not the rules of good pleading require the declaration on such a bond to aver the granting of an order of the probate court giving permission to sue on the bond, the omission of it is not available by way of objection to the proof of such permission; the defect, if such it be, is a purely technical and formal one, and can only be taken advantage of by demurrer.</p> <p>Evidence: ' Variance: Village: Corporation: Common council. Where the bequest was to the “corporation of the village,” etc., the order granting permission to sue was to the “common council of the village,” etc., and the declaration bn the bond was “for the use and benefit of the village,” etc., an objection to the admission in evidence of the order, on the ground of variance, is not sustained; the common council of the village is, for the imrpose in question, identical with the village, or the corporation of the village.</p> <p>Residuary legatee's bond: Payment of legacies: Probate order: Condition precedent. The statutory bond provided for where the executor is also residuary legatee, being an express undertaking under the statute to pay the legacies, it is not necessary, as a condition precedent to a suit upon it, that the probate court make an order for their payment.</p>

<p>Evidence: Promissory notes: Inference. It was competent in an action upon a promissory note made payable to Jane Lewis, to call defendant on rebuttal as a witness to identify an entry in his book, relating to a Jane Lewis note, which entry was made anterior to the existence of the note in suit, for the purpose of raising an inference that the testimony of defendant’s witnesses in regard to a Jane Lewis note did not apply to the note in suit.</p> <p>Evidence: Ch'oss-examination. The plaintiff having for this purpose called the defendant as a witness, simply to identify such entry and to show that it was in his own handwriting, it was not error to decline to permit his own counsel against objection to ask him on cross-examination questions relating to other distinct points involved in the case.</p> <p>Due-bill: Title: Parties. In an action upon a due-bill, brought in plaintiff’s own right, and for'his own use and benefit, where it distinctly appears from his own testimony, and the fact is not disputed, that the due-bill belongs, and always has, not to him, but to his wife, and was given for her money, the plaintiff is not entitled to recover.</p> <p>Due-bill: Title: Judgment: Estoppel: Wife: Oionership: Witness. The judgment in such a case in favor of the plaintiff would be no bar to the right of the wife, the real owner, to recover; and the fact that she was called as a witness in her husband’s behalf in his suit on the due-bill, would not estop her from afterwards suing in her own name on the same demand, at least where, as here, she had testified that she was still the owner.</p> <p>Charge to the juryWeight of evidence: Questions of fad. A refusal to instruct the jury, on request, that if they found certain statements to have been made they would tend very strongly to prove that the plaintiff had no just or legal claim against the defendant, and the giving in lieu thereof a charge, that the jury should give such weight to the testimony as they thought it entitled to, is not error; what certain statements tend to prove, and the weight to he given them, are proper questions for the jury; and for the court to instruct them as to the weight or importance to attach to any particular part of the testimony, is to usurp the proper province of the jury.</p>

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

<p>Appearance bail: Default: Liability of bail: Sail to the action. Bail to the sheriff was originally designed to temporarily liberate the defendant from close custody, and to place means in the sheriff’s hands to insure the defendant’s appearance to answer at the return of the writ, without which the action could not regularly proceed; and the undertaking of such hail was quite different from that of hail to the action.</p> <p>Bail: Failure of defendant to appear: ¡Practice. According to the original X>ractice, if the defendant failed to appear after the return day of the writ, the suit was at a stand and the plaintiff was remitted to either one of two courses: he might either proceed against the sheriff, and leave him to proceed against the hail he had taken, or he might take an assignment of the hond given to the sheriff, and prosecute upon that.</p> <p>Civil suits commenced by arrest and bail: Appearance bail: ¡Proceeding to judgment in principal suit: Waiver: Statutes construed: Circuit court rule SO: Practical construction. The statutory provisions of this state on the subject of hail in civil cases are considered and analyzed, and while it is thought that, were the question a new one, the prosecution of the principal suit to final judgment without regard to hail or to procuring that appearance spoken of in the statute and referred to in the hond, and which the whole theory of practice in civil cases commenced by arrest and hail contemplates, ought, under such provisions, to operate as a complete waiver of all right to turn hack and prosecute the hail, yet it is held that by practical construction, for nearly forty years, of these provisions, in connection with and as sanctioned by circuit court rule 20, it has come to he established that the plaintiff may if he choose abide bjr the hail to the sheriff, and go on with his action to final judgment, and afterwards, if needful, may recur to the hond to the sheriff as he might have done when the default happened.</p> <p>Bail to the sheriff: Money liability: Surrender of principal: ¡Execution against the body. Under this construction, however, the original neglect will not hind the appearance hail absolutely to respond in money, and preclude them entirely from surrendering their principal in their own exoneration; hut their right to surrender continues to run with the right of the xffain-tiff to insist on their continued liability for the defendant’s appearance, and does not terminate until in regular course an execution against the defendant’s body has failed.</p> <p>¡Exoneration of bail: Order of discharge: Bailpiece: Questions of fact In a reyiew on certiorari of proceedings for the exoneration of bail, an objection by the plaintiff that only one copy of the bailpiece was produced before the commissioner, and that his order of discharge was not endorsed on a second copy, if of any importance in any view, will not he considered on a record which is obscure as to the fact assumed by the objection, and where the objecting party has not deemed it of sufficient importance to require a further and more accurate return as to such fact.</p> <p>Exoneration of bail: Chamber business: Circuit court commissioner: Jurisdiction. Exoneration of bail has always been considered within the range of chamber business; and is therefore within the jurisdiction of a circuit court commissioner, under our constitution (Art. VI, § 16) limiting liis judicial functions to the exercise of such powers as a circuit judge may exercise at chambers.</p>

<p>Deposits: Banks: Money: Title. Money deposited in a bank otherwise than as a special deposit becomes the property of the banker, and he becomes the debtor of the depositor.</p> <p>Public treasurers: Deposits. Under the common law there seems to be nothing which distinguishes public treasurers and depositaries in this regard from any other financial managers.</p> <p>Public officers: Deposits: Ownership: Responsibility: Bailee: Guarantor. If an officer is required or authorized by law to make deposits in any particular place or with any particular person, he is usually,: if not universally, protected from any further responsibility, so long as he leaves it there, and is not a guarantor of the safety of the deposit; and the ownership and liability appear to be co-extensive.</p> <p>Statutes construed: State funds: County funds. The statutes of this state and of the territory have generally distinguished between the state and county funds, providing specifically for the deposit or preservation of the former, and leaving the latter to be dealt with and accounted for differently.</p> <p>County treasurers: Debtors: Bailees: Absolute liability. Under the provisions of our statutes county treasurers become responsible as debtors, at all events, and not as bailees merely, for the county funds that come Into their hands; and their liability is absolute and not affected by unavoidable loss or accident.</p> <p>Officers: Bonds: Official duty. An officer cannot reasonably be compelled to give a bond going beyond his official duties, as a condition of being allowed to hold his office, but the bond ought imoperly to be regarded as the measure of official duty.</p> <p>Legislative construction: County treasurers. Although a legislative construction is not authority for the past, yet the act of 1874 (Laws of 187h, Yol. 2, p. 8), providing for the deposit of Wayne county funds, and forbidding their loan or deposit except under conditions specified, and postponing its operation until the next official term of the county treasurer, indicates what has been the general understanding on this subject.</p> <p>County funds: County treasurer: Depositary: Payment. One who has borrowed county funds and repaid them to the treasurer cannot afterwards be held liable to the county for them; as the treasurer is the only legal custodian of county funds, no one can be required to do more than put them in his hands.</p> <p>County funds: Money had and received: Case: Bill in equity: Moneys dishonestly borrowed of treasurer. If one who has with a dishonest understanding received money from a county treasurer knowing it to be county funds required to be officially accounted for and restored, can be made liable at all to the county therefor, it must be by an action on the case, or a bill in equity, and not an action for money had and received; and the action would be based then, not on the source or identity of the particular fund which had been used, but would depend rather upon the state of the accounts; and the wrong is much in the nature of a voluntary transfer of property in fraud of creditors.</p> <p>County funds: Mights of the county: Fi'easurer's bond. And it is questionable licw fax the county conld he regarded as directly damnified, even in such case, if the treasurer’s sureties are responsible, or damnified beyond the deficiency in their ability.</p>

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

Case made from St. Joseph Circuit. This cause was brought into the circuit by an appeal from an order of the probate court denying the application of said Daniel Clark to have the surplus money belonging to the estate of Dolphus 0. Clark, deceased, applied to the payment of a mortgage given by the deceased, and resting upon lands which have descended to said Daniel Clark, as heir at law of said deceased.

<p>Ejectment: ‘Finding of facts: Mortgagee: Foreclosure: Entry, where in ejectment it is found as a fact that the plaintiff's ancestor entered into possession of the premises “"both as mortgagee and purchaser,” under-proceedings to foreclose a mortgage held by him, the finding is not necessarily inconsistent. The mortgagee could enter as purchaser, and if his foreclosure proved defective it would not affect the validity of his mortgage, and he could claim all the rights of a mortgagee in possession under his mortgage. .</p> <p>Mortgagee in'possession: Ejectment. A mortgagee in possession under a mortgage executed prior to the act of 1813, inhibiting actions of ejectment by mortgagees before their title has become absolute upon foreclosure, can maintain ejectment to recover possession of the mortgaged premises.</p> <p>Special findings: Evidence, where there is evidence tending to sustain special findings of fact a court of review is not at liberty to examine into the evidence to lest the correctness of these findings.</p>

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

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

<p>Error to ’Waslitenaw Circuit.</p>

<p>Evidence: General objections: Xndefiniieness. In an action of debt upon a bond, objections to the admission of tbe bond in evidence on the ground that the declaration did not state a cause of action against both obligors, and that the evidence was inadmissible under the declaration, are held to be too general and indeühite to distinguish any point for consideration.</p> <p>Evidence: Objections: Declaration: Bond: Assignment of breaches. Objections in such action to the admission of such evidence, which complain of the mode in which the breach of the bond is assigned in the declaration, are held not well taken where such assignment is in the terms of the condition of the bond itself; if insufficient when thus assigned, advantage should be taken of it by demurrer.</p> <p>Pleadings: Objections to evidence. Objections to the form of pleadings, raised by way of objections to the admission of evidence, are not favored.</p> <p>Bond: Evidence: Objections. In an action upon a bond to indemnify an executor for paying over, at the request of the principal obligor on such bond, to the latter, a bequest in his hands belonging to a legatee who was a debtor of such obligor, an objection to the admission of the bond in evidence, that the bond itself manifests on its face that it was given for an unlawful use of a trust fund, and hence was void, is held not well taken.</p> <p>Payment: Bond of indemnity. Payment of the bequest to the legatee, partly in cash and partly by note, is a sufficient payment, if received as such by the legatee, to give rise to a right of action on the bond of indemnity; the payment of the amount was the essence of the matter, and not the nature of that given and received in payment.</p> <p>Trials by ihs court: General finding: Exceptions: "Weight of evidence. Where a cause is tried by the court without a jury, and no special finding made, the general finding is in substance the same as a general verdict; and objections based upon the effect which ought to have been given by the court on the trial to certain evidence, will not be considered on error where no exception has been taken to the finding.</p> <p>Bond: Joint defendants: Offset: Baymeitt. • In an action against two obli-gors on a bond, claims of one of the defendants alone against the plaintiff, which accrued after the bond, and were not made operative as payments upon it, cannot be made available as offsets to the claim on the bond.</p>

This writ was sought to review proceedings of the highway commissioners to lay out a road on tbe town line between tlie townships of Sumpter and Van Burén, in Wayne county. To lay out the proposed highway, lands of the relator were required to be taken, and he was awarded damages for the taking.

Case made from Recorder’s Court of Grand Rapids. This record purports to be a case made after judgment, but there is no certificate of the clerk of the court below authenticating the case filed here. The counsel for the respective parties have attempted to cure this by stipulation.

Appeal in Chancery from Calhoun Circuit. The defendants having elected after this cause was at issue, to have the witnesses examined in open court, and having given the requisite notice therefor, the complainants procured an order at chambers that instead of the trial in open court the proofs should be taken before a commissioner. Proofs were so taken and the case proceeded to final decree, and -was then appealed to this court. — See 27 Mich., 4.

<p>Appeal iu Chancery from St. Joseph Circuit.</p>

<p>Exclusion of evidence: Custom: Charge to the jury: Error cured. A ruling excluding as immaterial, evidence offered to x>rove a custom, if erroneous, is held cured by a charge to the jury recognizing a general custom of the character sought to be proved, under limitations as favorable to the party comjjlaining of the ruling as he was entitled to claim.</p> <p>Reasonable expenditures for family: Income: Property. In determining what is a reasonable expenditure of money for one’s family, the income, or the capacity to earn or produce one, is fully as important a subject of inquiry as the amount of property x>ossessed.</p> <p>Husband and wife: Wife's purchases: Reasonable expenditures: Evidence: Style of living: Associates. In an action involving the right and authority of a married woman to bind her husband by purchases made in his name without his knowledge or express assent, evidence of the style of living and expenditure in the circle to which he introduces her, and where he expects her to find her intimates and associates, is pertinent.</p> <p>Married women: Goods purchased on husband's credit: Necessaries. A husband who suitably supplies his wife with necessaries, or with the money to purchase them, will not be held liable, on the basis of a presumption of authority or of an implied agency, for goods purchased by her on his credit, without his knowledge or consent, of one with whom he had had no previous dealings, though the goods be of the quality of “necessaries.”</p> <p>Goods sold to wife on credit of husband: Necessity. A tradesman supplies goods to the wife at his peril when the husband is guilty of no neglect of duty in the premises, and when, consequently, there can be no necessity for her purchasing on his credit at all.</p> <p>Husband and wife: Wife's purchases: Evidence. In an action to recover of the husband for goods sold on his credit -to the wife, evidence that she made other purchases in his name of other dealers at about the same time is immaterial; hut its admission could not have injured the plaintiffs •where, upon the whole evidence, it is apparent they were not entitled to recover.</p>

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

<p>Estates of deceased persons: Extension of time to settle estates: Debts: lien on realty: limitation. The time within which an administrator is required to close np the estate under our statutes cannot he extended beyoncl the period of four and a half years, during which period the creditors have a lien upon the realty belonging* to the estate; and the provisions ol' the statute in this regard operate in efi’ect as a limitation of this lien.</p> <p>Estates of deceased persons: limitation of time for admi/nistraiion: Opening estates once closed: Lands. The obvious intent of the statutory provisions in this regard was the speedy settlement of estates; and it is not allowable under such statutes to permit an estate to be opened after it has been closed nearly eight years, upon sthe hearsay averment that the public records show that a person bearing the same name which the deceased did had once owned lands in some other part of the state, which lands were then in the possession of and claimed by third parties.</p> <p>Estates of deceased persons: Probate court: Sale of lands: Debts barred, After the lapse of the period beyond which the probate court is not authorized to extend the time for the payment of the debts and the settlement of the estate, that court has no longer any authority to license the sale of lands belonging to the estate, for the payment of the debts which have been proved against it, and which by the statutes have in the meantime become barred.</p> <p>Statute construed: Estates of deceased persons: Claims: Limitation: Personal ... liability of administrator. The statute {Comp. L. 2871, §§ 4462, 4463), providing for notice to the creditors of the time appointed or limited for the payment of the debts, and giving the creditor two years after the time limited, or if the notice is given after such time, two years after such notice, to demand payment, or have his claim barred, was not designed to enlarge or extend the time in which claims should remain valid against the estate; but its object and intent is to fix a limitation upon the personal liability of the executor or administrator provided for by the previous section.</p>

<p>Mcrrlgages: Foreclosure: Defense: Evidence. The defense set up to the mortgage sought to he foreclosed in this case, to the effect that, notwithstanding a formal assignment in writing by the mortgagee to the complainant, in part payment of his contract for the purchase from her of certain lands, and the express provision in writing in such contract that he should guaranty the payment to her of the mortgage, it was verbally understood between them, as a part of the very transaction for the sale to him of said lands, that the mortgage should nevertheless still remain his property, in consideration of his undertaking to advance an indefinite sum, and to render indefinite future services about the settlement of a law suit of her husband’s relating to these very lands, is held to be opposed to every presumption, inconsistent with all probabilities and unsupported by the evidence.</p> <p>Foreclosure: Defense: Evidence. The further claim of defense, that such mortgagee, after he had made advances and rendered services in pursuance of such verbal arrangement, had an accounting with complainant, to which she assented, and which absorbed the mortgage, except one hundred and six dollars, and that this balance was thereupon tendered her, is held to be not merely not sustained, but to be clearly contradicted by the evidence.</p> <p>Accounting: Assent: Evidence. The refusal to accept a tender of the amount shown by the accounting to be owing to her is the very touchstone to try whether she assented to such accounting; and the unqualified rejection of such a main fact in her favor involved in such assent is inconsistent with the alleged fact of assent.</p> <p>Foreclosure: Mortgage: Transfer: Title: Defense. The fact that a complainant who is seeking to foreclose a mortgage has, pending the suit, borrowed money of a third person on the mortgage on the understanding that she should continue the prosecution of the cause, and in the event of her success should repay the money so borrowed, with interest, would be no defense to the foreclosure.</p> <p>Mortgagor: Payment by another: Equities. A mortgagor who has paid nothing can claim no equities, as against the assignee of the mortgage, by reason of payment made by his grantee of the equity of redemption to the mortgagee, who had, under a pretended claim of right, wrongfully obtained possession of the securities from a bailee of the assignee.</p> <p>Mortgages: Voluntary payment to person not entitled to collect: Notice: JReal owner: Suit pending. Voluntary payment of a mortgage to one not lawfully entitled to collect it, after notice from the real owner not to do so, and after suit brought by such owner to foreclose the mortgage, is no-protection to any one.</p>

<p>Trover: Heifer: Identity: Evidence. In an action of trover for the conversion of a heifer which both parties claimed to have raised, where the question in dispute was one of identity, it is competent to ask a witness who has testified to having "been among plaintiffs’ herd of cattle for two or three years, as to their "being gentle and coming about people; all such other facts and circumstances or characteristics, "besides color, as would tend to throw light on the identity, would he competent evidence.</p> <p>Identity: Evidence. It was not objectionable in such case to permit a witness for defendants, who had testified to having known the animal in question for a long time, to be asked on cross-examination if he had not made statements out of court about liis grandfather’s having hunted for this heifer.</p> <p>Evidence: Impeachment: Identity of questions. It is not competent, for the purpose of impeaching a witness who has denied having stated, in a conversation to which he had testified, that his father and the plaintiff had divided some cattle, to admit evidence of a statement in such conversation that his. father had traded the heifer in question for other cattle;, when an attempt is made to impeach a witness there should be no reasonable doubt that the question asked the impeaching witness is substantially identical with that put to the witness sought to be impeached.</p> <p>Record of the weather: Evidence: Temperature. A record of the weather» kept for a number of years at the state insane asylum, is held competent evidence to prove the temperature of the weather on a given day included in such record.</p>

<p>Portage ship-canal: Right of possession; Tolls. The right of the respondent company, under the legislation of congress and the state legislature in that regard, to the possession of the Portage ship-canal, and to collect the tolls, is considered «and sustained, as against the claim oí' the state as trustee of the United States.</p> <p>Land grants: Reserved right of free passage: Statutes construed. The provision of the act of congress, requiring the canal to he a public highway free of toll for United States vessels, is held not to evince a purpose to create by the act a trust in the possession of the state for the United States; similar provisions for free right of passage in United States land grants for railroads have never been construed as making the roads government roads.</p> <p>Land grant: Legislation construed: Approval of state action. The act of congress of 1866, making a further grant of lands to aid in the construction of said canal, expressly recognizes and impliedly approves the previous action of the state, by declaring the «additional grant to inure to the use and benefit of the respondents, upon whom the state legislation had before conferred the original grant under the specified conditions, absolutely divesting the state of any pecuniary interest or burden.</p> <p>Land grants: Action of congress: JPresumed notice: Authority of state: Choice of agencies. Both these hand gr.ants must be assumed to have been made by congress with a knowledge of the provision of the state constitution inhibiting the state from engaging in any work of internal improvement, as well as to comply with the expressed will of the state as contained in the joint resolution of January 21, I860, asking aid for this work; and the acts of congress confirming these grants must be regarded as intended to leave the state full discretion in the choice of agencies, as had before been done with the railroad grants.</p> <p>JPortage ship-canal: Land grant: Slate legislation: Contract rights: Losses, sion. The action of the state, in conferring this grant upon the respondent company, came clearly within the purview of the acts of congress, and fixed a contract right in the company, with a right of possession.</p> <p>Land grant: Statute construed: Reserved right of purchase: ^Possession. The fact that provision is made for the extinguishment of «any beneficial right by a refunding of the cost and expenses with interest, whatever effect •it might have on the standing of the company, as a trustee or otherwise, after its beneficial interest had been paid for and terminated, could certainly have no force to deprive them of their full possessory rights until such extinguishment.</p>

<p>Leeds: Fraud: Voidable contract: Election of parly defrauded. A conveyance of lands, procured through fraudulent representations of the valuó of a patent-right, taken in part payment therefor, is not void, hut is at most only voidable; and while the grantor, on ascertaining the fraud, might, by talcing the necessary steps, rescind the contract, yet he is not bound to do so, but could elect to treat it as valid.</p> <p>Fraud: Rescinding the contract: Retaining the consideration: Affirmance. One who has been defrauded in the exchange of lands for a patent-right and other property, if, after ascertaining the facts, he chooses to make use of the right conveyed to him, or to retain and use the other property received by him as part of the consideration of his conveyance of the lands, thereby affirms the entire transaction; he. cannot retain what ho had received, and yet treat the agreement as void.</p> <p>Fraud: Rescinding a deed: Inconsistent dealing with the consideration: Laches: Estoppel. One claiming to have been thus defrauded, who had sold such patent-right, and sued his vendee upon a note given as part of the consideration for the conveyance, and collected the same, and had stood by for fifteen years, without objection, and had seen the premises i>ass into the hands of others who had made valuable improvements, is held to have lost by his laches whatever rights he may originally have had to rescind his conveyance for fraud, and to be estopped from setting up any cl'aim to the premises against the present owners.</p> <p>Purchase of lands in possession of third parties: Notice: Equities. One who purchases lands in the actual possession of third parties, with full knowledge of such possession, and of the rights claimed by those in possession, is in no better position to assert equities against them, than his grantor was.</p>

<p>Charge io the jury: Detached sentences: Construction. Detached sentences of a charge to the jury, which are complained of as being inconsistent with and neutralizing instructions given on the request of the party making the objection, are to be construed, as they would be understood by the jury, as qualified by the context and by the whole charge given.</p> <p>Trover: Charge io the jury: Ownership. A charge in trover that if the defendant’s vendor owned the property when he passed it to the defendant the plaintiff cannot recover, is not error where the plaintiff claims through a different chain of title; if the property did not belong to plain tiff he cannot complain of its conversion.</p> <p>Purchaser: Payment: Title. It can make no difference what one paid for property he purchased, in a controversy as to the title between liis ven-dee and one claiming through a different source, so long as he paid his own, and not such other person’s money or other consideration.</p> <p>Dive-stock: Ownership: Eodder. There is no rule of law which gives the ownership of live-stock to the person who owns what they feed on.</p> <p>Owner: Estoppel. An owner of pi’cqmrüy will not be held estopped from asserting his ownership in a case where the evidence fails to show that his silence or coiiduct has misled any one else into any course to his prejudice, or induced him to do what he would not have done if informed of the former’s rights.</p>

<p>Motion for new trial: Quo warranto causes: Belay. A motion for a netr trial in a quo warranto cause should, be made at the same term that the report of the trial is filed, where there is ample time to make it before the close of the term.</p> <p>Attorney and client: Attorney ceasing to act: Stay of proceedings: Statute construed. The statute (Comp. L. 1871, § 5680), providing for*a stay oí iwoceedings m tlie cause, for the appointment by the client of another attorney or solicitor, in case “any attorney or solicitor shall die, be removed or suspended, or cease to act as such,” does not apply to a case ■where a practicing attorney ior any reason declines to go on with a particular case while still continuing in practice, but is intended to provide for those cases only in which the attorney or solicitor, by reason oí death, disability, or other cause, has ceased to practice in the court.</p> <p>Quo warranto causes: Final judgment: Issues of fact: Jury trial: Report of trial: Evidence. It is no valid objection to the entry of final judgment in a quo warranto cause in which an issue of fact has been sent down for trial by jury, that the circuit judge with his report of trial has not certified the evidence on the trial, where this was not required by the order sending the case down for trial. ■ •</p> <p>Verdict: Finding construed: Hank road company: Forfeiture of corporate franchises: Ouster. A verdict finding that the road of a plank road company has been for more than six years in a broken and worn out condition for its entire length, and has been for that time and still continues to be entirely unsafe and in an unsafe condition for vehicles to pass over and upon, is sufficient to warrant a forfeiture of the corporate rights and franchises of the company and to justify a judgment of ouster.</p> <p>Verdict: negligence. An objection to such a verdict, that it fails to find that the road was in such unsafe condition through the neglect or fault of the company, is held to be without force; in view of the time covered by the verdict, negligence is a legal conclusion.</p> <p>Evidence: Verdict. The evidence in the case is held to have been ample to warrant the verdict.</p>

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

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

Mandamus is sought to require the respondent to settle and sign a bill of exceptions in a' cause to which the relator is a party. . It ajipeared that the relator’s counsel prepared .a bill of exceptions, embracing the exceptions which had .been takeh in the cause on relator’s behalf, and submitted the same for settlement.

Mandamus is sought to require the respondent to accept moneys tendered him for .redemption of lands sold for taxes. The amount tendered was the sum for which the lands were sold, with interest at the rate of twenty-five per cent., in accordance with the provisions of the tax law, as amended by the act of 1875 (Laws of 1875, Act No. 17) ; but the treasurer declined to receive it, on the ground that the act, as it stood before the amendment (Clomp.

Tyson was arrested on a capias in a civil action, issued upon an affidavit charging him simply with a breach of a promise to marry. An order to hold to bail was indorsed 031 the capias. He gaye bail 'and was released, but was afterwards surrendered in exoneration of bis bail, and at the time of making this application was in custody of the sheriff by virtue of such capias. The respondent was heard on the merits upon the motion for the writ.

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

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

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

<p>School inspectors: Appeal to town board: Waiver: Certiorari. Parties appealing tinder tlie statute from the action of school inspectors in arranging school-districts, to the town hoard, thereby waive those questions which require judicial review and submit themselves to the discretion of that body; and a certiorari to the town board does not open for review the doings of the inspectors.</p> <p>Discretionary administration: Town board: School inspectors. It was never intended that a court should exercise any of these powers of discretion- / ary administration; and where, on such an appeal, the town board acted within its jurisdiction, its discretion cannot be reviewed by the courts; and if it did not, and its acts were void, then under the statute the action of the inspectors, after ten days, is equally intact and beyond disturbance. v</p> <p>School inspectors:. Town board: Appeals. Where, however, the town board, acting without authority, reverses the action of the inspectors, their doings may be overturned; but an order of the board affirming the action of the inspectors, whether properly or improperly, only leaves such action where it would have been without such interference.</p>

<p>Declaration: Contract: Statute of frauds: Evidence. Under a declaration counting upon a contract not to be performed within a year from the time it was made, it is incumbent on the plaintiff, under the statute of frauds, to show'that the contract, or a memorandum thereof, was reduced to writing aiid signed by or on behalf of the defendants.</p> <p>Statute of frauds: Memorandum: Terms of the contract. And a memorandum, to comply with the. statute, where the contract is not written out, must embrace all the substantial terms of the contract (except the consideration), and cannot be aided by parol evidence when essentially defective.</p> <p>Statute of frauds: Memorandum: Telegram: Contract. A telegram to “ come on at once at salary of two thousand, conditional only upon satisfactory discharge of business,” lacks some of the essential terms of a contract, in that it fixes no time for the continuance of the employment, and does not even name the employment itself.</p> <p>Salary: Construction: Time of employment. The use of the word “salary” in a sense evidently implying a year’s compensation, cannot be said to indicate an intent to fix the time of employment at a single year rather than at a term of years; and the one is just as consistent with wliat appears in the writing in question, as the other.</p>

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

Appeal in Chancery from Washtenaw Circuit. This is a bill to have certain premises, occupied for fifteen years past by complainant, and embraced within the limits of a street as laid out on a recorded plat of the village of Manchester, decreed to be free and clear of all incumbrance by reason of said platted street, for want of acceptance by the public of the offer of dedication tendered by such plat; and to restrain the corporate authorities of the village from opening any…

<p>Appeal from Eecordor’s Court of Detroit.</p>

<p>Certiorari to.Jolm M. Stacj, a justice of tbe peace of the city of Ionia.</p>

<p>Appeal in Chancery from Bay circuit.</p>

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

<p>¿Lssumpsit: Common counts; Money paid to defendant's use: Evidence; Duty of defendant to pay: Contract under seal. An action of assumpsit on the common money counts ■will lie to recover the amount of a tax paid "by the plaintiff for the use of .the defendant, notwithstanding the duty of the defendant to pay the tax arose upon his contract unclqr seal for the sale of the land to the plaintiff. The action -is not "based upon the contract, which is matter of evidence only; and the duty of defendant to pay may "be established "by a contract under seal* as well as "by[any other.</p> <p>Cases distinguished. This case is distinguished from Butterfield v. Seligman, 17 Mich., 95, and Gooding v. Ilingston, 20 Mich., 439.</p>

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

<p>JE/jectment: Statute of limitations. A ruling in ejectment, that the plaintiff •was barred by the act of limitation of 1868, is erroneous in a case -where his right of action accrued before that ¿ict took effect, and where by the law then in force the right of action was not barred when the -suit was brought; the plaintiff’s right depended on the law in force when his right of action accrued.</p>

This' was an action of trover brought by defendant in error against plaintiffs in error, for the contents of a certain box, claimed by her to have been delivered with other goods to the defendants below as Warehousemen, and which, when the other goods were restored to her, was missing. The canse was tried by jury, and verdict rendered for the plaintiff. The defendants thereupon brought error.

<p>Certiorari to Highway Commissioners of Taylor.</p>

<p>Special appeal: Xrregularilies: Remedy: Certiorari: Jurisdictional defects. Mere irregularities iu the proceedings before the justice cannot be considered on special appeal, but if a party wishes to plant himself upon those, he must resort to his writ of certiorari; questions of jurisdiction, however, are open to him on special appeal.</p> <p>Affidavit for civil warrant: Authority of co-plaintiff: Co-tenants: ¡Presumptions. Authority to make an affidavit for a civil warrant, in a suit commenced before a justice for the wrongful conversion of goods belonging to the plaintiffs, will be presumed where the affidavit is made by one of two plaintiffs who were co-tenants of the property converted.</p> <p>Affidavit for civil warrant: Conversion: Bailee: Consent An affidavit which shows that defendant has taken the property of the plaintiffs from the possession of their bailee and converted it to his own use, is sufficient to authorize a justice to issue a civil warrant ; it is not necessary in such affidavit to negative any possible defense, such, for instance, as the consent of the bailee, if that would constitute a defense.</p> <p>Justice’s courts: Adjournments: Special appeal: ¡Return: ¡Record: ¡Presumptions. An objection, on special appeal, to adjournments by the justice, as having been ordered without any showing, and therefore without authority of law, has no foundation to rest upon in the record where the justice’s return, though showing the adjournments, does not show that they were made without the proper application and evidence; on sucha • return the adjournments will be presumed to have been properly made.</p>

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

This was an action of ejectment brought by Torrans against Hicks. The judgment below was in favor of defendant, and plaintiff brought error.

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

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

This was an action brought by defendants in error upon tlio common counts for goods sold and delivered, and for work and labor done and materials furnished.

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

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

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

<p>Contracts: Steamboat engine: Suitable apparatus or contrivance: Cluieh-coup-lings: Question of fact. Whether, under a contract to build and set up a steamboat engine, which only requires the builder generally to provide suitable apparatus or contrivances, he is at fault for not using clutch-couplings, or any other particular device, in connection with the shaft to prevent its binding, depends on whether such device had become generally known and used, as more appropriate and efficacious than others; and this would be for the jury to determine from evidence concerning such knowledge and usage.</p> <p>Evidence: Experts: Contracts: Interpretation. To permit an expert to be asked whether, under such a contract, containing no language on this point requiring a direct interpretation by an expert, it was the duty of the builders to put in clutch-couplings, is to allow him to give an opinion covering matter entirely beyond the functions of a witness, and is error.</p> <p>Evidence: Negligence: Question of fad: Experts: Opinions. The course which the owner of the steamer ought, as a prudent man, to take as to laying up for examination and repairs on discovering defects in the engine which had been put into her under such a contract, may depend largely upon circumstances, and is not a question of science calling for the opinion of an expert.</p> <p>Evidence. The government inspector’s certificate is not competent evidence upon the question whether a steamboat engine is properly constructed in accordance with the terms of the manufacturer’s contract.</p> <p>Evidence: Steamboat,.shaft: fettling by the stern: Experts. It being, claimed here that the length of the shaft settled the boat by the stern, and caused the journals to heat and bind, it was. error to exclude the- question, put to an expert, whether the boat settled more than it ought to, or than was usual.</p> <p>3lanufadurevs: Steamboat engines: Presumptions: Ordinary conditions: XTsual precautions. 'Builders of engines for steamers must be presumed to understand tiio ordinary conditions attending the running of steamers! and those which must be provided for in setting engines. Tf settling by the stern is common and likely, the engines and shaft'must be so placed and adjusted as to receive no needless disturbance from it; and it would be negligence to disregard the usual and reasonable precautions against mischief from it.</p>

The finding of facts and conclusions of law in this caso were substantially as follows: “John G-.

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

<p>Constitutional laio: Mandamus: Jurisdiction of circuit courts. The section of the constitution of tliis state defining* the jurisdiction of the circuit courts {Art. VJ, § 8), which, after conferring upon them ‘‘original jurisdiction in all matters, civil and criminal,” not expressly excepted, or prohibited by law, and “appellate jurisdiction from all inferior courts and tribunals and a supervisory control of the same,” provides that “they shall also have power to issue writs of habeas corpus, mandamus, injunction, quo warrantoy certiorari, and other writs necessary to carry into effect their orders, judgments and decrees, and to give them a general control over inferior courts and tribunals within their respective jurisdictions,” is hold not to give those courts the power to issue the writ of mandamus generally, or in all cases to which it is applicable, but only when “necessary to carry into effect their orders, judgments and decrees, and to give them a general control over inferior courts ahd tribunals,” etc.— Graves, Cir. J., dissenting*.</p>

<p>Finding of facts: Circuit judge: Resignation: Nullity. A. finding of facta made and filed after the judge -who tried the cause had resigned is a nullity.</p> <p>JPractiee: Costs. Whore, however, the plaintiff in error has founded objections upon such findings, and in some respects proceeded as though they were valid, no costs will be allowed in his favor on a reversal upon the ground that the findings are void.</p>

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

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

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

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

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

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

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

<p>Replevin: Abatement: Removal of justice: Replevin bond: Delivery: Detention. Where in consequence of the removal of a justice from the township), a replevin suit commenced before him has abated after the property had been taken upon the writ by the officer, a judgment upon the replevin bond on special findings is not warranted in the absence of any finding that the property had ever been delivered to the plaintiff in replevin, or was detained by him after the abatement of the suit.</p> <p>Replevin: Abatement: Remedy. The remedy of a defendant in replevin who has been thus deprived of his property by a replevin suit which had so abated, is an action of replevin to recover it, or possibly of trover for its value, and not by an action on the replevin bond.</p>

This was trover brought by defendants in error for the conversion of two horses, two log-chains and a set of harness. The plaintiffs below claimed title under chattel mortgages from one 'Melrose, covering the property in question and other property.

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

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

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

Appeal in Chancery from Marquette Circuit. This bill was filed to restrain the collection of the specific tax therein, complained of, and was heard in the court below on demurrer to- the bill, and the demurrer was sustained and the bill dismissed. The complainant appealed.

<p>Probate matters: Appeals: Common-laio judgment: Review: Writ of error. The decision of the circuit court affirming on appeal an order of the probate court, extending a commission on claims and directing the commissioners to hear and adjudicate upon a specified claim, is not a common-law final order or judgment, and cannot be reviewed on writ of error.</p>

The justice’s return to an appeal was taken by the ap-pellee’s attorney and filed, and an ex parte motion at once made, upon the certificate of the clerk that the entry fee had not been paid, and an order nisi granted on the same day that the return was filed, requiring the appellant to pay the entry fee and an attorney fee of fire dollars to the opposite party within fifteen days, or in default thereof that the appeal be dismissed.

Tbe relator claimed to baye been elected supervisor of tbe township of Bingham, in Huron county, and qualified as such and received tbe books and papers belonging to tbe office. One Bamberg also claimed to have been elected supervisor, and he caused a search warrant to be issued by the probate court of Huron county, by virtue of which the books and papers belonging to the office of supervisor were taken from relator by the sheriff and delivered to Bam-berg.

<p>Mill dams: Jflowage: Injunction: Abatement: Allowance of damages. Xu this case, which is an injunction hill, the proofs are held, sufficient to show that defendants’ mill-dam sets hack the water so as to overflow about a quarter of an acre of complainant’s land, thereby injuring him somewhat, and that this infringement was without right, hut they fail to show that the dam causes any general unliealthfulness; yet, under all the circumstances, it is deemed the injury is not serious enough, as compared with the interests which defendants have at stake, to call for redress by injunction, or an abatement of the dam, and complainant is therefore remitted to an allowance by way of damages.</p> <p>Equity jurisprudence: Administration of relief. Strict legal right, in contradistinction to what is equitable, is not a necessary criterion of equitable redress; huta court of equity always aims to sha\De its administration of relief in such way as to avoid oppression or the entailment of consequences of unnecessary rigor.</p>

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

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

<p>Michigan Central Railroad: Charter construed: Goods awaiting delivery: Warehousemen. The Michigan Central Railroad Company, under its charter, is liable as warehouseman only, and not as common carrier, for goods transported over its line to Detroit and there deposited in its warehouse awaiting delivery to an intermediate consignee; this was ruled by G Mich.) 248.</p> <p>Construction of charter: Goods awaiting delivery. In construing the charter in this regard, sections eleven, twelve, fifteen and sixteen must be considered and construed together, and so considered, it is clear no distinction was intended to be made between goods awaiting delivery to a final consignee and those awaiting delivery to an intermediate consignee.</p>

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

<p>Chancery appeals: Practice matters. On chancery appeals rulings oí' the court below in matters of practice which do not affect the merits will not "be reviewed.</p> <p>Equity pleading and practice: Supplemental bill: Demurrer: Hearing on merits. Overruling a demurrer to a hill filed as a supplemental hill, based on the ground that it brought into the case only such facts as should have been the subject of an amendment, is not such error as will reverse a decree after a hearing upon proofs on the merits. Misnaming the hill could not have prejudiced the defendants under such circumstances.</p> <p>Mortgages: Delivery: Evidence. "Where a mortgage has been left with a firm of attorneys acting for both parties, to be delivered only upon the consent of both, and there is a conflict of testimony whether such consent was ever had, the fact that the mortgagee is found in possession of the mortgage and the mortgagor in possession of an instrument executed by the mortgagee to show what the mortgage was given for, where the actual delivery of the latter is fairly proved, is decisive.</p> <p>Mortgages: Fraudulent as against creditors: Objection by mortgagor. It is not a valid objection, coming from the mortgagor, that his mortgage, given for a large nominal sum to secure an endorser for a smaller sum, was given to defraud his creditors; a conveyance fraudulent as to creditors may be perfectly good as between the parties where it is supported by a valid consideration.</p> <p>Mortgages: Foreclosure: Accounting as to partnership dealings: Set-off. On a 1)111 to foreclose a mortgage given to secure for accommodation endorse, ments having no connection with the partnership dealings, an accounting as to partnership matters between the parties is not permissible for the purpose of raising up a counter claim against the mortgage, vrtiere no special equities are set up in the answer or by way of cross-bill entitling defendants to the benefit of this as án equitable set-off.</p>

<p>Land contract: Relation of landlord and tenant: ¿Assignee: JSstoppel. One who enters into possession of land under and by virtue of an agreement which another has made for his benefit with a third who held by assignment of a contract for the purchase of the same from a fourth, which •contemplates the relation of landlord and tenant in case of default, can acquire no greater rights in the premises as against the latter than his contractee had under the contract.</p> <p>Landlord and tenant: Disputing landlord's title: Attornment to stranger: Buying in outstanding title. One who has taken possession under a lease cannot dispute his landlord’s title, or make a valid attornment to a third person, nor during his tenancy can he buy in an outstanding title, without his landlord’s consent; he can do no act inconsistent with, or which could change the relation between himself and his landlord, without first yielding and delivering up to the latter the possession acquired from him.</p> <p>Land contract: Ditty of paying taxes: Tax-titles, where one enters under an arrangement with another who is in possession by virtue of a contract with the owner requiring him to pay all taxes, he can acquire no valid title to the premises as against such owner by virtue of any tax-sales for taxes which under the contract it was the duty of his assignor to pay, but would hold any title thus acquired in trust for such owner.</p>

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

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