Volume 33 — Michigan Reports

<p>Highways: Obstructions: Declaration: Special damages, In an action to recover damages suffered from an unlawful obstruction of a highway, no recovery can be had by reason of a third person passing over plaintiff’s land to get around the obstruction, in the absence of a special allegation of such damage or of the averment of facts and circumstances from which such a consequence would naturally result.</p> <p>Highways: Obstructions: Damages: Plaintiff’s own acts. One cannot recover for being compelled by highway obstructions to travel several miles around by another highway, where such obstructions are partly of her own erection and where but for her part therein there would be ample room for passage.</p> <p>Charge to the jury: Exception: Practice. A charge to the jury to which no exception was taken will not be considered on error.</p>

<p>Railroads: Transporting freight: Diligence: Usual and ordinary demands: Extraordinary contingencies. Railroad companies are bound to have all reasonable and necessary facilities and appliances for conducting and carrying on in a prompt, skillful and careful manner the business in which they are engaged, and for transporting without unreasonable delay the usual and ordinary quantity of freight offered them for transportation, or which might reasonably and ordinarily be expected; but they are not bound to be prepared for unusual and extraordinary contingencies, such as the great Chicago Are, which no ordinary prudence or foresight could reasonably foresee or anticipate.</p> <p>Unusual contingencies: Diligence: Despatch: Average time. Where an unusual contingency has arisen which unexpectedly largely increases the business and thereby prevents the handling of freight with the usual promptness and despatch, the criterion of reasonable diligence is not the usual average rate of speed in ordinary times, but the average running time under the extraordinary and unusual circumstances existing at the time.</p> <p>Negligence: Impossibilities. The law is not so absurd as to assume to hold any one responsible upon the ground of negligence for not doing that which it was practically under the circumstances impossible to do.</p> <p>Railroads: Transporting freight: Preferences: Relief goods: Discrimination: Public necessity. Giving preference to relief goods sent to the sufferers by the great Chicago Are was not such a discrimination against shippers of other freight as to make carriers liable as for negligence for not forwarding freight in the order in which it was received. All general rules must yield to a great public necessity.</p> <p>Negligence: Impossibilities. Where the law creates a duty or charge, and the party ¡is .unable to perform it without any default in him, ancl has no remedy over, then the law will in general excuse him.</p> <p>Railroads: Fruit: Freezing: Negligent delay: Proximate cause. The freezing of apples while being transported by a subsequent carrier is not so direct and natural a result of unreasonable delay by the first carrier, as to malee such first carrier liable therefor by reason of such delay.</p> <p>Common carriers: Unreasonable delay: Negligence of subsequent carrier: Proximate cause. Proof of negligent delay by a subsequent carrier, and that without it the injury would have been avoided, is a complete answer to an action seeking to hold the first carrier responsible by reason of its delay for the injury to fruit by freezing while in custody of such subsequent carrier.</p>

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

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

This is an action of trover to recover the value of a. horse, the property of the plaintiff, which was taken and sold by the defendant as marshal of the village of Clayton, to collect money due on a tax levied by the village board on plaintiff’s land. The cause was tried by jury, and verdict and judgment having passed for defendant, the plaintiff brought error.

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

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

This was an action brought by McNeil against the rector and trustees of St. Joseph’s Church of Detroit upon a written contract for doing all the mason work, and furnishing the materials therefor, upon a church building, to recover a balance of the contract price, and for extra work. McNeil recovered judgment and the defendants brought error.

<p>Error to Van Bureo. Circuit.</p>

<p>Assault and battery: Attempt to ravish: Quality of‘evidence: Reasonable doubt. In an action for an assault and battery an averment in one count of an attempt to ravish does not change the nature of the action, nor affect the quality or weight of evidence required to make out a case; and a ruling that should preclude a verdict upon such a charge unless the jury were convinced beyond a reasonable doubt would be error; such a rule of evidence is not applicable to civil controversies.</p> <p>Amount of verdict: Weight of evidence: Questions for jury. A court of review will not consider the amount of the verdict, or the weight of the evidence. The jury will be presumed to have done no legal wrong so long as they acted within their province, and their verdict will not be disturbed, unless the court has committed legal error.</p> <p>Damages: Assault: Aggravation of existing disease. The aggravation of an existing disease or injury by an assault is as reasonable a ground of complaint, and as proper an element to be considered m estimating damages, as the creation of a new one.</p> <p>Evidence: Sickness: Suffering: Complaints: Declarations. The declarations of a sick person made from time to time concerning present sufferings and sensations are admissible to prove the fact of such sufferings and sensations.</p> <p>Witnesses: Bodily ailments: Physicians: Best evidence. Unskilled witnesses are not precluded from testifying to facts that came within their own observation relating to ordinary injuries or sickness of those with whom they have consorted, not involving medical knowledge beyond that of ordinary unprofessional persons, by any rule of evidence requiring such facts to be proved by physicians only, for the reason that theirs is the best evidence.</p> <p>Credibility of witnesses: Question for jury. All considerations concerning the credit due to the witnesses respectively are for the jury only.</p> <p>Evidence: Ostensible purposes. The exclusion of the evidence of the defendant’s wife, offered to prove that she knew and approved of the^professed purpose for which defendant left his own house to go to that -of the plaintiff on the occasion when the grievance complained of is alleged to have occurred, is held not error under the circumstances of this case, there having been no evidence given before to which this would have been responsive, or which it would have tended to disprove. — G-uaves, Oh. J., dissenting.</p> <p>Assault and battery: Attempt to ravish: Damages: Felonious design. The gist of the action being the assault and battery simply, and the matters of aggravation affecting only the amount of damages, any shortcomings in the proof of the felonious design would not preclude a verdict for such damage as was made out to the satisfaction of the jury.</p> <p>Immaterial evidence: Charge to the jury. "Where immaterial evidence has been received without objection, instructions to the jury are not open to complaint on the ground that they precluded the jury from giving proper weight to such evidence, for it is not entitled to be given any weight.</p> <p>Evidence: Plaintiff's bad character; Credibility: Damages. Allowing evidence of plaintiff’s bad character to go to the jury in such an action, as bearing upon her credibility as well as upon the question of her consent to defendant’s acts, and also upon tlie damages, is giving it as wide a scope as the defendant is entitled to ask for it.</p> <p>Exemplary damages: Intentional assault. An intentional assault, whether serious or trivial, must be regarded as willful, and would authorize such damages as in the sound judgment of the jury the character and extent of its atrocity would require; and where the evidence tends to show an indecent, if not a felonious assault, the case is a fit one for exemplary damages.</p> <p>Exemplary damages. The question of the propriety of exemplary damages in cases of willful wrong is no longer an open one in this state.</p> <p>Charge to the jury. Instructions to the jury which are not liable to mislead them as to their powers or duties, will not be reviewed in reference to their spirit or style, as bearing with severity against the party complaining of them.</p>

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

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

Appeal in Chancery from Saginaw Circuit. This was a foreclosure bill; and the appeal is from au order denying a motion to set aside the sale under the decree.

<p>Noreign corporations: Agents: Garnishee proceedings: Disclosure. The general agent in this state of a foreign corporation doing business here, who is authorized to receive service of process on its behalf, has authority under the statute, when he has been served with garnishee process against the company, to make answer or disclosure on behalf of the company.</p> <p>Garnishee proceedings: Disclosure: ¿Foreign corporations: Agent. A foreign corporation against which garnishee process has been served upon its lawfully authorized agent is not to be considered in default for want of an answer after disclosure filed by such agent.</p> <p>Garnishee proceedings: Disclosure: Plaintiff's evidence. The disclosure in garnishee proceedings is to be considered as evidence for the plaintiff, and unless it affirmatively discloses a liability to the principal defendant the plaintiff cannot recover.</p> <p>Special appeal: Reversal: Costs. On judgment of reversal in the circuit on a special appeal from a justice’s judgment against a garnishee, the latter is entitled to costs.</p> <p>Taxation of costs: Writ of error. Questions in reference to the taxation of costs in the court below are not brought up for review by the writ of error.</p>

<p>Contracts: Subscriptions for slock: Parties: Agreement to furnish' slock: Special contract: Money had and received. Wixson, with others, subscribed an agreement circulated by Haywood, whereby such subscribers undertook and agreed with John Sinclair & Co. to take the shares subscribed by them respectively in a petroleum company which the contract stated was being formed by said Sinclair & Co. to develop a part of the ClaiOc farm on Pithole creek and a branch of the same,. Wixson subscribing for one share and paying therefor to Haywood one hundred dollars; this contract was signed only by the subscribers for stock, and no signature was appended on the part of Sinclair & Co. Haywood signed and delivered to Wixson a receipt for the one hundred dollars, which recited that the latter is “entitled to certificate of one share of stock,” etc., “in accordance with the terms of the subscription to which said Wixson’s name is attached.”</p> <p>Held, 1. That Haywood was not liable to Wixson under a siiecial count upon a contract to furnish and deliver to Wixson, in consideration of said subscription and of the payment of the one hundred dollars, the stock called for by the subscription, in the absence of any showing that Ilaywood was a member of the firm of Sinclair & Co., or that any company had in fact been organized by said firm as contemplated by said subscription paper; that the paper signed by Haywood does not promise that a company shall be formed, nor does it make Haywood a party to the undertaking on behalf of Sinclair & Co. in the subscription paper to form one.</p> <p>Held, 2. That the receipt by Haywood of the money paid by Wixson on such subscription, under the circumstan'ces, does not make him liable to Wixson under the general count for money had and received.</p>

This was ejectment brought by Campau against plaintiffs in error. He claimed title under a Detroit city tax lease dated June 16, 1874, and running two years from that date.

<p>Equity jurisprudence: Injunction: Village ordinance: ¡Nuisance: ¡Fire limits. A court of equity has no jurisdiction to restrain the threatened violation of a village ordinance, unless the act threatened to he clone would, if carried out, he a nuisance; and the erection of a wooden building within the limits of a city or village is not in and of itself a nuisance, nor does the fact that it is prohibited by ordinance make it such.</p> <p>Villages: Erection of 'wooden building: Injunction. The increased risk of lire and consequent danger to adjoining property from the erection of a wooden building in a thickly settled portion of a Tillage, does not warrant a court of equity in interfering by injunction to restrain the erection.</p> <p>Equity jurisprudence: Violation of ordinance: Eemedy cd law. It cannot be said that there is no adequate remedy at law because the ordinance in question is not sufficiently stringent, since it is competent for the legislature to giye the Tillage ample power to establish fire limits and enforce obedience thereto, and with a proper ordinance, framed with an appropriate penalty for all yiolations, the remedy would be found adequate.</p>

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

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

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

Circuit. This was an action of assumpsit brought by Crowley against Eber B. Ward in justice’s court, and taken by appeal to the circuit. The action was for the value of services performed by plaintiff. The declaration contained a special count and the common counts, but before going to the jury plaintiff withdrew the special count. Plaintiff recovered and defendant brought error. Ward having died, the suit was revived in the name of his executors.

<p>Evidence: Identification. It is not error to permit parol evidence in replevin, for the purpose merely of identifying the transaction, of the fact that the property in question had been taken on an execution, where the contents or validity of the execution is not sought to be shown in that way.</p> <p>Evidence: Judgment: Attachment: Execution, An objection to the introduction in evidence of a justice’s judgment and proceedings in a suit commenced by attachment, which only goes to the validity of the service and return of the writ, is not well taken in a suit in which an execution levy by virtue of such judgment, as well as the attachment levy, is in issue, where the judgment was rendered on an appearance of the parties, and the attachment contained a personal summons clause; for it points only to the irregularity of a step in no way essential to the jurisdiction of the justice to render the judgment.</p> <p>Evidence: Admissions. Admissions of a subsequent purchaser, that he had knowledge of the attachment, are admissible in evidence where it is further shown that he admitted also that he had purchased both after and subject'to the attachment.</p> <p>Evidence: Fraud: Collusion. A statement of the attorney for the defendant in the attachment suit, made at the time the judgment was rendered, that he could defeat the judgment but had made up his mind not to do so, cannot be shown in evidence for the purpose of showing fraud and collusion of the attorney; for by itself it has no such tendency.</p> <p>Replevin: Value: Evidence: Appraisal. The admission in evidence of the appraisal in the suit in replevin to prove value is held not error under the circumstances of this case.</p> <p>Replevin: Lessor: Lessee: Possession: Right of action. Where personal property has been leased, the right to replevy during the lease is with the lessee, and not the lessor; the action of replevin is possessory, and no one not entitled to the possession can maintain it.</p> <p>Replevin: Charge to the jury: Questions of fact. In an action of replevin brought by a subsequent purchaser against one holding on an execution levy by virtue of judgment in attachment, there being evidence tending to show an attachment levy, and that plaintiff bought with notice of the proceedings, it is not error to permit the fact of the attachment, and the question of fraud against creditors, to go to the jury.</p> <p>Evidence: Statements: Heir say. Statements of one’s wife made in his absence cannot be shown as evidence to bind him of the facts so stated. Such statements are hearsay.</p> <p>Charge to the jury: Questions not supported by any evidence. An instruction to the jury, in regard to a billiard table seized on an attachment, that if they found that under the term “billiard table” was ordinarily included the cloth, balls and other things necessary to its use, they might regard them as covered by the inventory on the attachment levy, which only mentioned “one billiard table,” provided they found they were in fact included in the seizure, is misleading and erroneous where there was no evidence tending to show that any property was attached except the disjointed table.</p>

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

This was replevin brought by Sebright to recover a yoke of oxen ancl an ox-yoke. Moore claimed them by virtue of a sale on execution against one Hill, issued upon a judgment in favor of one Cooper. The property was first taken on an attachment, and after judgment, was sold on the execution.

This was an action of replevin brought by Jaraison against Deyoe and Silas Stafford and wife, for an organ. Deyoe had contracted in writing to sell and deliver the organ to Jamison for two hundred and forty dollars, the title to be retained by the vendor until performance. Jamison paid all but thirty dollars and interest, which was represented by his note for that sum given to Deyoe, and then sold and delivered the organ to one Delano.

<p>Exemptions: Purchase price claims: Promissory note: Pt'ansferee: Original consideration. A transferee of a note given for the puirchase price of the property is not entitled to claim that as to his judgment on such note the property, though otherwise exempt, is liable to execution by virtue of the exception in favor of purchase price claims. It is not admissible for the purpose of bringing a case within this exception to trace the original consideration through successive changes and substitutions.</p> <p>Exemptions: Husband and wife: Replevin: Misjoinder. Exemptions from execution being intended for the benefit of the family, a joint replevin suit by husband and wife to preserve this benefit is admissible under our statute, which expressly confers upon the wife the right to sue alone, and does not forbid a joint suit.</p>

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

<p>Equity pleading and practice: Proofs must sustain bill. A complainant in a chancery cause is bound, in order to be entitled to relief,- to prove his case substantially as he alleges it.</p> <p>Divorce: Separation: Desertion. A separation of husband and ‘wife by the latter going to her father’s, to constitute a basis for divorce under our statute upon the ground of desertion, must have commenced at least two years prior to the filing of the hill and continued during the whole period without interruption; and mutual treaties and deliberations within that period with a view to living together again are inconsistent with the kind of desertion the statute has in view as a ground of divorce.</p>

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

<p>Case made from Recorder’s Court of Grand Rapids.</p>

The respondent at chambers, upon the ex parte application of the attorneys of a plaintiff in error who “at the time of serving the writ” of error (Comp. L. 1871, § 7122) had neglected to file a bond to stay or supersede execution, ordered that plaintiff in error have leave to file such bond nunc pro time, and thereby have recalled a previously issued execution.

<p>Seduction: Distinct acts: Election: Evidence. Under an information for seduction the introduction of evidence tending to prove one distinct substantive offense is a sufficient election, without any express announcement to that effect, of such offense as the one upon which alone a conviction will be sought, to preclude the proof of any other substantive offense as the basis of a conviction.</p> <p>Seduction: Evidence: Subsequent acts. Subsequent acts of intercourse cannot be given in evidence, on a trial for seduction, as corroborating testimony, for they have no such tendency.</p> <p>Seduction: Illicit intercourse: Promise: Chastity. Illicit intercourse alone does not constitute seduction, but the complainant must have yielded to some sufficient promise or inducement, and have been thereby drawn aside from the path of virtue she was honestly pursuing at the time.</p> <p>Seduction: Frequent repetitions: Reformation: Evidence. Where it appears that illicit intercourse was had between the parties as opportunity offered, at short intervals, to warrant a conviction of seduction for the second or third or later act there should be clear and satisfactory proof of reformation.</p> <p>Seduction. Where a woman willingly submits to indulge a criminal desire, the fact that a promise of marriage is made as matter of form merely, is not enough of itself to characterize the act as seduction.</p> <p>Seduction: Illicit intercourse: Promise: Chastity. Illicit intercourse in reliance upon a promise made is not alone sufficient to make the act seduction, but the nature of the promise and the previous character of the woman for chastity must be considered.</p> <p>Seduction: Previous seduction: Reformation: Presumption. A woman who has been before seduced and has reformed may be again the subject of seduction; and where a reasonable time elapsed between the different acts, a presumption in favor of reformation may arise; but where the repetitions are frequent and the intervals short, as in this case, no such presumption arises, and the burden of proving reformation is upon the prosecution.</p> <p>Seduction: Previous chastity: Evidence. It is competent on a trial for seduction, for the defense to show that the prosecutrix had, previous to the alleged offense, had illicit connection with another man, the chastity of the female at that time being in all cases involved.</p> <p>Seduction: Evidence: Preliminary examination. It is not competent to show that the complainant, though present, was not sworn and examined before the magistrate on the preliminary examination of the defendant for the offense in question.</p> <p>Seduction: Evidence: Conspiracy. Evidence of a conspiracy between complainant and her father and mother to inveigle the defendant into a marriage with complainant, and failing of this to prosecute him, is admissible on a trial for seduction.</p> <p>Evidence: Experts: Opinions: Physicians: Sexual intercourse. The opinions of medical experts, that sexual intercourse under the circumstances described by the complainant, i. e., in a buggy, was highly improbable, if not impossible, and also as to the pain and suffering the complainant would have experienced had such an act taken place, are held admis sible.</p> <p>Commencement of prosecution: Statute of limitations. The issuing of a warrant in good faith and delivery to an officer to execute, where the defendant was afterwards arrested upon that warrant and bound over for trial, is a sufficient commencement of the prosecution to satisfy the requirement of the statute of limitations.</p> <p>'Waiver: Information: Pleading. The defendant, by pleading to the information, waives all objection on the ground that as but one offense was charged in the warrant no other offense could be set forth in the information.</p>

<p>Equity pleading and practice: Proofs: Case made by the bill. No relief can. be granted in equity on evidence establishing a case not made by the bill.</p> <p>Fraud: Estoppel: Laches. Where a party has consented that the legal title to lands should by an absolute conveyance be passed, over to another, or discovers that another has fraudulently obtained the legal title and put it in the market, he cannot stand by and see third parties acquire rights upon such apparent legal title and afterwards ask for relief which is purely equitable.</p>

<p>Equity jurisprudence: Mistake: Proofs. It is essential to the granting of relief in equity on the ground, of mistake, that it should he made to appear that there was an error on both sides, and the mistake alleged must he admitted or distinctly proved.</p>

<p>Statutory recovery for tax-liens: Subsequent tax sales. It is a complete defense to a claim for a recovery under tlie statute (Comp. L. 1871, § 1131) as for a lien for taxes, that the right of the claimant has been extinguished by subsequent tax sales.</p> <p>Tax-titles: Township and school taxes: Board of supervisors. A tax deed given upon a sale which included township and school taxes is not rendered invalid by a showing that the board of supervisors did not direct any taxes for township o-r school purposes to he assessed in the township for that year.</p>

<p>Appeals in Chancery from- Kalamazoo Circuit; bill and cross bill.</p>

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

<p>JPire insurance: Contribution: Averaging the loss: Subsisting policy. In. a contest as to the adjustment of the proportion of a loss hy lire, under a policy providing for averaging the loss, which one of several insurers of a firm should bear, a policy in another company, taken in the individual name of one of the partners prior to the formation of the partnership, and never assigned to the firm, though hy the terms of the partnership agreement all insurance was to he, hut which was shown to have been treated and dealt with, both hy said firm and hy the company issuing it, as a subsisting policy in full force in favor of the firm, is held to he entitled to he drawn into the adjustment and to he chargeable with its proportion of the loss, and to that extent to reduce the amount recoverable upon the policy in suit.</p>

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

<p>Error to Superior Court of Grand Bapids.</p>

<p>Log-Men law construed: Personal judgment. The log-lien law (Sess. L. 1878, p. 466) is a very crude and imperfect statute, and, if practicable at all as a law, can only be safely applied to the simplest cases. It contemplates, proceedings in the nature of a suit in rem to enforce a lien, and not one for the recovery of personal damages; and a personal judgment is not authorized.</p> <p>Construction of statutes. This statute, being one conferring a new right to be enforced by a summary remedy, is to be construed strictly, and all material preliminaries to the right of suit must be complied with, and the record must show it.</p> <p>Declaration: Allegation of notice: Service by mail. An allegation, in the declaration under this statute, that the plaintiffs, on a day named, “caused to be mailed to each of said defendants a notice of the filing of said petition or statement, as required by the act aforesaid,” is n'ot an explicit statement of the service of such notice “by depositing the same in the postoffice, directed to the owner of the logs or timber, his agent or attorney, at his or their place of residence, and paying the full postage thereon,” which is the mode of service by mail expressly sjiecified by the statute.</p> <p>Declaration: Allegation of notice: Denial on oath: Admission. The provision of the statute that the plaintiff; shall allege the filing of the application or petition for a lien, and that all allegations relating thereto shall be taken to be true unless expressly denied under oath in the answer, does not operate to require a denial of notice on oath in order to put the plaintiff to proof of such notice as the statute specifies.</p> <p>Service of notice by mail: Evidence. An offer to prove that the plaintiffs on a day named caused to be mailed to each of the defendants a notice in the words and figures following, etc., is not an offer to show such service by mail as the statute requires, in that it does not include a proposal to show that the notice was directed to each defendant at his place of residence, or that full postage, or any postage, was paid; and such defect in the proof of service is fatal.</p> <p>Service by mail. It is a general rule that when service is sought to be made by mail it should appear that the conditions on which the validity of such service must depend had existence, otherwise the evidence must be deemed insufficient to establish the fact of service.</p>

<p>Application for Mandamus.</p>

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

<p>Finding of fads: Joint defendants: Separate liability. Where the finding of facts in a suit against two defendants fails to show any joint tuadertaking or liability of both, but rather shows a separate liability of one defendant only, it will not support a judgment against both defendants.</p>

This was replevin brought by Todd against Blaisdell, for a yoke of oxen and an ox yoke.

This was an action brought by Burt for services as an attorney, commenced before a justice, and taken by appeal to the circuit. The judgment below was in favor of defendant, and the plaintiff brings error.

This was an action upon a guaranty of collection, executed by Eeed and endorsed on two promissory notes of one Homer Cole, payable to the order of one Bixby. Gage, haying become holder of the notes, sued Cole in justice’s court, and took a transcript to the circuit, and there had execution issued, which was returned nulla Iona. He thereupon brought this action against Eeed on his guaranty.

Case made from Wayne Circuit. This was trover. The plaintiff described himself in his declaration as Adam E. Bloom, assignee of Meyer & Fleischman, and counted upon a conversion of certain goods described. On the trial ho offered to prove the assignment to him by an instrument in writing, and facts tending to show the conversion of the goods by defendant after the delivery and acceptance of the assignment.

This writ was sued out to review the action of tho court below in declining on motion to vacate a judgment docketed in the circuit upon a transcript filed therein of a justice’s judgment. The grounds of the motion, were, (1) that the affidavit for the transcript was not signed; and (2) that the justice’s judgment was Yoid for want of proof of authority of the plaintiff’s attorney, the defendant having failed to appear. — See Comp. L. 1871, § 5305.

<p>Equity pleading and practice: Case made by the pleadings. The rule that the court is to adjudge according to the case shown and issues raised by the pleadings is applied in this case.</p> <p>Fraudulent conveyances: Homestead. The conveyance by a debtor of land which is exempt as a homestead from any coercive proceedings by his creditors, cannot operate to defraud his creditors, and is not within the statutory regulation which makes a debtor’s disposal of property with intent to defraud creditors voidable at the instance of the creditors, Herschfeldt v. George, 6 Mich., 466, is modified and limited.</p> <p>Equity jurisprudence: Sureties: Security: Subrogation: Contribution: Parties. Where after judgment and execution levy against sureties upon a bond, two of the sureties pay the judgment in full, but the levy against their co-surety is retained for their benefit, they may join in a bill hi aid of the execution to remove conveyances made by such co-surety in fraud of such execution levy, to the end that it may be made available to them by way of subrogation to enforce contribution; though their claims for contribution are several, yet the levy being neither divisible nor apportionable, the relief sought, so far as it turns on the subjection and enforcement of this lien, is necessarily joint.</p> <p>Equity jurisprudence: Itemedy at law. The objection that the case is prop» erly cognizable at law, and not in equity, is held not well founded»</p> <p>Cosureties: Payment: Preserving the debt: Contribution: Security: Subrogation. The payment of the judgment in such case hy the two sureties, with the intent to avail themselves by way of subrogation of the lien of the execution against their co-surety to enforce contribution, would not operate in equity to annihilate the debt or destroy the force of the levy as between them and such co-surety; but a court of equity will keep the debt alive and preserve the security of the levy to the extent of the lawful claim for contribution as against the co-surety, and will enforce the right of subrogation.</p> <p>Fraudulent conveyance: Homestead: Decree. Where a conveyance of land which embraces an undefined homestead interest and something besides, is assailed in equity as fraudulent as against creditors, the decree set- . ting it aside as to so much as is not exempt as a homestead, should provide for an admeasurement and setting off of the homestead according to the situation and value at the date of such conveyance.</p>

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

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

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

This was an action of trespass on the case brought by plaintiff in. error against defendants in error for injuries to the walls of her brick building, caused by water flowing from defendants’ roof against it. The trial was by jury, and the verdict for defendants.

<p>Special questions to jury: When answers inconsistent with general verdict. As to special questions to the jury, where a verdict is given for the party holding the affirmative of the question at issue, and. the jury in answer to special questions submitted to them negative a fact, or say they are unable to find it, which the party holding the affirmative must establish in order to entitle him to a verdict, or if where a verdict is given for the other party, they find in answer to such questions facts sufficient to establish the issue, then in either case the special finding is inconsistent with the verdict, and will control it.</p> <p>Special questions to jury: Statute construed: What proper questions to be submitted. Proper interrogatories upon particular questions of fact material to the issue, and involving legal consequences which would have a controlling force in reaching a conclusion, should upon request be submitted to the jury; and though the jury cannot be compelled to answer them, a failure to answer or find any affirmative fact essential to sustain the verdict will have the effect to nullify the verdict and result in a mistrial.</p> <p>Blections: Special questions to jury : JZumber of illegal votes. Where in an election, controversy it was conceded the respondent by the official returns had a majority of one, and the relator sought to overcome this by showing that certain votes cast for the respondent were illegal, and, the respondent in turn undertook to show that illegal votes were cast for the relator, it is held the parties had a right to have proper questions, proposed for the purpose of ascertaining whether certain alleged illegal voters voted, for whom they voted, and whether they were legally entitled to vote, submitted to the jury, and that their rejection was error.</p> <p>Elections: Evidence: Appearance of folded ticket: Source of information. The testimony of a witness that two men voted who were not registered, voters, that he saw their ballots as they were handed by the voters to the inspector and that he is confident they were straight democratic tickets, is not within the ruling in 16 Mich., 312, as to testifying from the appearance of a folded ticket, where it does not appear that was his only source of information.</p> <p>Special questions to jury: Admitted fads. The admission of a fact upon the trial does not preclude the opposite party from putting a special question requiring the jury specifically to find the fact.</p> <p>Elections: Special questions to jury: Registry. It being shown that a certain person named, who.was claimed to be an illegal voter, voted at a certain place, it was competent to ask the jury to find specially whether he was duly registered in that ward, since if duly registered he was prima facie entitled to vote.</p> <p>Special questions to jury: Application of legal principles to the evidence. It is not a valid objection to special questions to the jury as to whether a named person was “duly registered,” or was a “legal voter,” and “if not, why not,” that it requires them to pass up>on questions of law; the application of legal pn’inciples to the evidence in the case, and to draw conclusions therefrom, is not beyond the province of the jury.</p> <p>Special questions to jury: Inconclusive inquiries. Questions which are inconclusive, and which, no matter how answered, would not be inconsistent with the verdict, may properly be withheld from the jury</p> <p>Special questions to jury: Policy: Legislative questions. The question of the wisdom or propriety of permitting special questions to be submitted to the jury, is one to be addressed, not to the courts, but to the legislature.</p> <p>Electors: Voting twice: Mistake: Illegal votes. One who has first by mistake voted in the wrong precinct, and upon discovering his mistake has requested and procured the inspectors to withdraw and cancel a ballot such as he asserted he had voted, has no right afterwards to vote again in his proper p>recinct; and his second vote is illegal.</p> <p>Inspectors of election: Canceling ballot. Inspectors of election have no authority, on the assertion of one who claims to have voted by mistake in the wrong p>recinct, to withdraw from the ballot box and destroy a ballot which he identifies as the one, or similar to the one he had voted.</p> <p>Electors: Registry: Presumptions: Residence. The presumption of qualifications as a voter, arising from the registry, covers all the essential requisites to a right to vote, including residence within the ward the necessary time.</p> <p>Residence: Temporary absence: Intention. The temporary absence of a p>erson or his family, though extending over a series of years, does not necessarily, without regard to his intentions, make him lose his residence or depirive him of his rights as an elector.</p> <p>Elections: Jv/i'y trial: Special questions: Eailure to answer: Mistrial. In an election controversy where the issue turned on the question whether illegal votes had been cast, evidence having* been introduced of illegal votes on both sides, the answer of the jury to special questions as to how many illegal votes were cast for each, that they do not know, is inconsistent with their general verdict against the piarty who had received according to the official returns the majority of the votes, and demonstrates that there has been a mistrial.</p>

<p>Equity jurisprudence: Specific performance: Parol contract: Performance. An arrangement between a step-son just come of age and about to leave home and set up for himself, and his step-father, that if the former would stay with the latter aud work the farm aud take care of the family, he should have iu consideration thereof a deed of one-half the farm, which is shown by^the evidence to have been a distinct and definite agreement as to the land and the consideration, and not a mere vague expectation, is sustained and specifically enforced after a substantial performance of the consideration.</p> <p>Evidence: Representatives of deceased person: Matters equally within Jcnoioledge of deceased. The statute which in controversies with the representatives of deceased persons precludes evidence of matters equally within the knowledge of the deceased, does not apply to controversies with third persons acting in their own right as purchasers during the life of the deceased, and not taking by any post mortem estate.</p> <p>Equity pleading and practice: ¡Suit ai laxo: Election: Par. The fact that complainant, after conveyance of the land to a third person, brought attachment and levied on the land for such of his advances and expenditures as were not outlawed, where the attachment has since abated by the death of the defendant therein, will not avail as a bar to his bill, filed to set aside such conveyance on the ground that the grantee therein took as trustee subject to complainant’s beneficial interest, at least not ' where such defense is not clearly and directly set up in the answer.</p>

<p>Corporations: Stockholders: Individual liability: Damages for negligence. The claim of a passenger who has been injured by the negligence of the agents of a corporation carrier, is not one which, after judgment against the company and execution returned unsatisfied, affords a ground of action against the stockholders under our statute. — Comp. L. 1871, §§ 2478-80.</p> <p>Construction of statute. The statute in question is to be construed in accordance with the natural and ordinary sense of the language used.</p> <p>Corporations: Stockholders: Individual liability: Statute construed. It was not the design of this statute to make every judgment against the company, for whatever cause, a ground of action against the stockholder, but the cause of action against the stockholder is made identical with that against the company, and the proceedings against the company, in case it is not dissolved, are mere matters of inducement.</p> <p>Individual liability of stockholder: Judgment against corporation. Where the case is a proper one for sustaining the liability of the stockholder, it seems that the judgment against the corporation, if obtained without fraud or collusion, is conclusive and binding upon the stockholder, as to the fact and the extent of the liability of the company, but the questions whether the cause of action adjudicated was of a nature to involve the stockholder under the statute, and whether the conditions as to ownership of stock, and the fact of such ownership at the times specified, existed, should be considered open.</p> <p>Corporations: Individual liability of stockholder: Statute construed: Debts contracted: Torts. The nature of the demands against the corporation which will support the action against the stockholders, except where dividends are improperly declared or paid, is limited by the statute to claims for labor performed and for debts contracted, and this excludes all others; and no claim founded on pure tort is within the statute.</p> <p>Corporations: Inabilities of stockholders: Debts contracted: Damages'for negligence. The liability of a carrier for an injury to one of its passengers’, caused by the negligence of its agent, though the grievance be one for which the passenger was at liberty to sue either in assumpsit for the breach of the contract to carry safely, or specially on the case upon the negligence of the carrier, is one the real gist of which is the wrongful act of the carrier, and is in its essential ingredients one based upon the tort; and it is not, therefore, within the meaning of the statute in question, a “debt contracted.”</p>

<p>Equity jurisprudence: Bill to quiet title: Judicial sale: Title of complainant. A bill to remove a cloucl from the title to lands, which deduces complainant’s title through a judicial sale, cannot be sustained where the proceedings which were the basis of such sale, and upon which the validity of complainant’s title depends, are shown to be void for jurisdictional defects.</p> <p>Equity jurisprudence: Sale of lands to satisfy debts: Execution: Bevy. Courts of equity have no authority, upon a bill by a judgment creditor alleging that his debtor became vested with the legal title to lands, and that by certain subsequent void proceedings an ostensible but invalid title, which was a mere cover and not a valid interest, had been conferred on third persons named, who in law held only as trustees for such debtor, in the absence of any averment or showing of an execution levy upon the lands in his favor, to decree the sale of such lands for the satisfaction of the judgment.</p> <p>Transfer of legal title: Equitable rights: Equity jurisprudence. While mere equitable rights and titles may in suitable cases be made available by a direct proceeding in equity to satisfy judgments, through a receiver or otherwise, the transfer of the legal title to land, through the immediate power of the court, where no lien has been previously obtained, in order to satisfy judgment creditors, is not an attribute of the traditionary jurisdiction of equity, nor is any such authority conferred by our statutes.</p> <p>Decree: Judicial sales: Notice: Description: Sales by parcels. Under a decree authorizing a sale of lands by a commissioner upon public notice “according to the course and practice” of the court, “in such convenient and reasonable parcels ” as in his opinion should be most conducive to the interest of all the p>arties, a sale upon a notice which fails to give any description of the lands, and by putting up and striking off numerous distinct bodies upon one offer and bid, is unwarranted and illegal.</p>

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

<p>'Jh'ial by court: Special finding: Weight of evidence: Facts found: Judgment. Where a cause is tried by the court without a jury and a special finding filed, the weight of the evidence will not be considered on review, but it being conceded there was evidence lending to prove the facts found, the only question left open in that regard is, whether the facts as found support the judgment.</p> <p>Contracts: Place: Agency: Verbal order: Approval: Goods sold and delivered. Where an agent takes in Michigan a.verbal order for goods and transmits it to his principals in Ohio for approval, and the latter there approve it and consign the goods to a common carrier in Ohio, and the vendee accepts the goods in Michigan, paying the freight, the contract is an Ohio contract, and not a Michigan one; and though the goods be intoxicating liquors, the transaction is not within the Michigan statute.</p> <p>Contracts for sale of goods: Title: Delivery: Common-law rule. At the common law a contract for the sale of goods, where nothing remains to be done by the seller before making delivery, transfers the" right of property, though the price has not been paid, nor the thing sold delivered to the purchaser.</p> <p>Presumptions: Illegality: Contracts: Statutes of another state. Illegality will not be presumed; nor will it be presumed, as against the validity of a contract, and in the absence of proof, that the statutes of another state have provisions similar to those of Michigan, and in derogation of the common law.</p> <p>Sales of goods: Liquors: Statutes of other states: Presumption: Intention. It will not he presumed, in the absence of evidence or finding, that parties making a sale in another state, where it was presumably valid, of liquors to be transported to Michigan, intended thereby to assist the purchaser in violating the Michigan statute.</p>

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

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

<p>Chattel mortgage: Replevin: Mortgagor's wife: Demand. One holding* a mortgage of a span of horses remaining in use on the farm of the mortgagor’s wife where they both reside together, cannot, on breach of condition of the mortgage, bring replevin againstjtlie wife alone, without first making a demand of her.</p> <p>Lawful possession: Replevin: Wrong-doer: Affirmative action. The horses in question being lawfully on the farm, and so in the wife’s possession, she cannot be charged as a wrong-doer in relation to them until 'she has taken some affirmative action; and the absconding of her husband, leaving the horses on the farm, could not of itself make her a wrong-door.</p> <p>Evidence: Statements of defendant's husband. In an action against the wife alone, evidence of statements or acts by her husband in other cases, not shown to have been made or done in her presence or with her knowledge, is entirely incompetent.</p>

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

Danaher had a contract to construct a portion of the Flint & Pere Marquette Railway, and sub-let a portion of the work to Fahy & Dye. This action was brought to charge Danaher with payment of certain indebtedness to G-arlock incurred by Fahy & Dye for the board of their laborers. The evidence showed, among other things, the payment by Danaher’s agent of a previous board bill upon the order of Fahy & Dye. The plaintiff recovered judgment, and defendant brings error.

<p>SHmlnal law: Suspended sentence: Sentence by another judge. Where, upon a plea of guilty to a charge of malicious injury to a dwelling, sentence has been suspended by the trial judge until the next term, and the prisoner let to go on his own recognizance in a merely nominal sum, and the subsequent term has passed without any further steps being taken, it is not competent for another judge, holding the court temporarily, to sentence such offender to ¡imprisonment in the state prison; such action is to be considered not merely as supplying the trial judge’s omissions, but as practically overruling his decision.</p>

Appeal in Chancery from Wayne Circuit. This was an appeal from the order of confirmation of a sale on a foreclosure decree. The bill was filed July 8, 1874, but no subpoena was issued till January 10, 1875.. Defendants entered their appearance and filed an answer. The cause was heard on pleadings and proofs June 15, 1875, and a decree rendered authorizing a sale at any time after-July 18, 1875. Sale was made under this decree July 29, 1875.

Clair Circuit. Wright was tried on a charge of assault with intent to murder one Woodward, alias Wagner, at Port Huron. The jury, having received the charge of the court, retired in charge of an officer, and shortly afterwards returned into court for further instruction as to whether the prisoner could be convicted under the information of assault and battery merely.

Clair Circuit. This was a suit on a promissory note for one hundred and fifty dollars. The execution of the note was denied on oath. The note, when produced, was payable four months After date, and purported to be executed by Jourden by his mark and attested by one Terney. Plaintiffs introduced evidence tending to prove the execution by defendant of the identical instrument produced; and they were admitted to be bona fide purchasers.

Appeal in Chancery from St. Clair Circuit. The respondent was appointed receiver in a cause jading in said circuit court in chancery, wherein one Goulden was complainant and said company and others were defendants. The order appointing him receiver was afterwards held by the supreme court (31 Mich., 456) to be unauthorized and without jurisdiction, and was vacated by mandamus.

Appeal in Chancery from St. Clair Circuit. This was a bill for divorce, upon which a decree was granted as prayed, and an appeal taken. The subpoena was personally served. The bill was taken as confessed on October 7, 1875, the order pro confesso being based upon an affidavit of regularity made and sworn to on that day, and merely stating generally that all the proceedings to take the bill as confessed had been regular and according to the rules and practice of the court.

This was an action upon a promissory note made by Clark & Kirchmaier and endorsed by Beclcel Bros. & Simpson. The suit was commenced by declaration against the members of both firms. Service was made at Detroit on Moses Beclcel on May 5, 1875, and was accepted on the same day by said Beckel for his brother and Simpson.

This action was brought by Lott for an assault and battery and false imprisonment.

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

<p>Partnership: Dissolution: Evidence: Notice. In.au action to charge two defendants as partners with the payment of plaintiff's services in running a shingle mill previously oivned hy both as a firm, but then belonging to one only, reports of a scaler employed by plaintiff, Avherein the mill is described by the name of the one defendant alone, and AVhich Avere made for the purpose of enabling the plaintiff to settle Avith the boom company for boom charges, are held admissible in evidence as tending someAvhat to shOAV notice to plaintiff that the mill business Ayas being-carried on on such defendant’s individual account, and not, as formerly, by the firm.</p>

This was an action of replevin brought by defendant in error against Haynes, wlio as sheriff bad levied upon the joroperty in question as that of Levi L. Phillips.

<p>Swamp-land road contracts: Reservation: Statute construed. It is against the policy of the law to permit the question whether specific lands are reserved or not under the statute (Comp. L. 1871, § 8959) providing for the reservation of lands selected by state road contractors, to be left open to private arrangement or to parol evidence.</p> <p>State roads: Board of control: Extension of contracts: Time specified. The board of control, however, are given by the statute broad powers for extending the time for completing any contract, and as the statute expressly provides for the reservation of lands-selected by such contractors to apply on their contracts “during the full time specified in said contract for the completion thereof,” any extension lawfully authorized by the board would become the “time specified,” and the reserve would continue during that period.</p> <p>Slate roads: Contracts: Time specified. But the time “specified in the contract ” cannot be made to include any period not within the original contract or some authorized extension.</p> <p>Hoards: Joint action: Votes: Qreating a term: Affirmative action. The action of a hoard of several persons must he determined hy their votes, as evidenced hy their record; their action separately amounts to nothing; and their joint action must be evidenced in some way as the action of a lawful majority; and it requires affirmative action to create a term of “time specified.”</p> <p>Swamp-land road contract: Reservation: Renewal: Vested rights. During any interval that may elapse between the expiration of the original time specified in the contract and any subsequent renewal or extension thereof» there would exist no valid reservation in favor of the contractor; and where during such interval the lands have been lawfully patented to others, the board of control cannot, by afterwards renewing the contract, take away the rights thus vested in such patentees, although such renewal would bind the state to pay for the work.</p>

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

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

<p>General contracts in restraint of trade: Construction:' Limitation. 'While there are cases where a contract in restraint of trade, general in its terms as to the place or extent of territory over which it should, extend, may, in the light of all the surrounding circumstances, he so construed that effect can he given to it, yet it is not always easy or safe to thus construe and then enforce such a contract; especially where there is no certainty that the contract as thus construed and limited was the one the parties had in mind and intended to provide for in their agreement.</p> <p>Uquity jurisprudence: Injunction: Uncertainty: Indefiniteness. An agreement to “never tow vessels in competition” with complainants, or either of them, is too uncertain and indefinite to he enforced hy injunction, since every case of alleged violation would involve the consideration of the ques-</p> <p>‘ tions of fact, depending on the peculiar circumstances of each case, whether there was in fact any competition, whether complainants at the time were furnishing sufficient facilities, and what ought to he considered sufficient facilities.</p>

This was ejectment brought by Blackwood, who claimed title by virtue of a mortgage dated May 27, 1837, given by one Miller, then owner of the land, to one Adee.

This is an. application to require' respondents to pay over certain moneys collected in the village under the liquor tax law. The assessment was made by the township instead of the village authorities, and the taxes have been paid over to the township by the parties assessed.

Appeal in. Chancery from Manistee Circuit. This was a foreclosure bill. The mortgage was given by the members of the firm of Tyson, Sweet & Co., to complainant, as trustee, to secure the paymeut of several creditors of said firm. Decree pro confesso was rendered. The sale was made in two parcels, and the property struck off and deeds made to complainant as trustee, one parcel at $70,000 and the other at $90,000.

<p>Contracts: Place: Sales: Liquors; Prohibitory liquor law. A contract made in another state for the sale of liquors to he delivered in Michigan, sticli as would he valid at common law, and which is not shown to he invalid where made, cannot he held void hy virtue of the prohibitory liquor law of Michigan.</p> <p>Prohibitory liquor-law: Money paid for unlawful purchases: JSei-off: Money had and received. A claim for money paid for unlawful xmrckases of liquors sold in violation of the prohibitory liquor law, may be set off against any lawful demands sued by the vendors. The statute providing that money so paid shall be deemed to have been received without consideration, and may be recovered’ back, the liability for the same is thereby put on the same footing as for any other money had and received.</p> <p>Recoupment: Notice: Indefiniteness. A notice of recoupment averring damages for breach of plaintiff’s contract which- does not x>oint out in what respect the contract had been broken to defendant’s injury,, is held toe indefinite to allege errors upon.</p>

<p>Landlord and tenant; Occupancy by arrangement with tenant. One who merely makes an arrangement- to, and does occupy jointly with another who has been left in possession of premises originally taken by virtue of a lease to him and another, does not thereby, in the absence of any dealing with the original lessor, become tenant to such lessor.</p> <p>Agreement for joint occupancy: Contract construed: Rent: Use and occupation: Assignment. S, in x>ossession of a store by virtue of a lease to himself and another, made an agreement with C, to permit C to occupy the store .jointly with S, in consideration of C’s furnishing and keeping up a stock of goods to belong exclusively to C, which both were to manufacture and sell, and paying to S as compensation for his services half the net profits:—</p> <p>Held, That this agreement did not obligate C to pay rent except infer, entially as a part of a joint occupancy and as expenses of business; that the remedy for a breach on C’s part was an action for damages, and not one for use and occupation; that it made no promise to pay rent to S; and that S could not assign any claim under it for rent or for use and occupation, or for any thing not distinct and severable.</p>

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

This was an action for libel brought by Weiss against Whittemore & Stephens.

Appeal in Chancery from Berrien Circuit. The bill sets forth that one John T. Edwards on April 23, 1866, conveyed to one Orrin Goodrich a piece of land in Berrien county, Michigan, described as follows: Commencing twenty rods south of the northwest corner of the southwest quarter of the southwest quarter of section thirty, •in town four south, of range eighteen west, thence south twenty rods, thence east eighty rods, thence north twenty rods and thence west eighty rods to…

<p>Criminal law: Preliminary examinations: Specific finding: Statute construed. Under our statutes it is not requisite that an examining* magistrate should make and return or keep any record of a specific finding* as to the commission of the offense charged, or as to there being probable cause to believe the accused committed it, but if he either let him to bail or commit him for want of bail or because the offense is not bailable by a justice, and certify and return all the examinations and recognizance, that is^ all the statutes contemplate as essential as the basis for filing an information.</p> <p>Criminal complaints: Offenses not cognizable by a justice. A complaint for the arrest of one charged with an offense not cognizable by a justice is not required to set forth with precision and in formal and distinct terms the exact criminal act to be inquired into and prosecuted; the complaint is not designed to fix and control the after proceedings as to the title of the offense or the date of it; but it is the examination on oath which immediately follows, and is required as a consequence of the complaint, that is to guide the magistrate in deciding whether a warrant ought to issue, and if so, for what.</p> <p>Informations: Preliminary examination: Offense charged. It is not competent to charge in an information an offense for which no preliminary examination has been had or waived; and to determine whether such an examination was had as to any specific offense charged in the information, recourse can be had only to the examinations returned and filed by the magistrate.</p> <p>Criminal complaints: Examination: Rape: Tíme. A complaint and examination which, though informal and inartificial, contains the substance of a charge upon oath that the accused committed the crime of rape on complainant,» at a placed named, on or about January 4, 1873, and also between January 20, 1873, and September 30, 1874, is sufficient to authorize the magistrate, and to make it his duty, to issue a warrant for the arrest of the accused.</p> <p>Rape: Preliminary examination: Time of alleged offense. And upon the arrest of one thus accused, it is competent and the duty of the magistrate to inquire, on the preliminary examination of the prisoner, in regard to the commission of the offense on any particular occasion between January 20, 1873, and September 30, 1871.</p> <p>Preliminary examinations: Trials: Criminal pleadings: Precision. A preliminary examination before a justice is in no proper sense a trial, and the rules and principles which govern in respect to the frame and construction of criminal pleadings, the scope and import of trial issues, and the relevancy of evidence thereto, are not applicable to such proceedings.</p> <p>Preliminary examinations: Identification of offense: Time: Informations. Where the depositions taken on the preliminary examination specify and identify by a number of coincident facts and circumstances a particular offense which the complainant states she thinks was in May, 1874, this will justify an information charging the offense as of May 5, 1874, and a conviction based upon evidence tending to prove the identical offense thus identified and singled out.</p> <p>Informations: Time: Variance. Time is not an ingredient of a criminal offense in any such sense as to make it necessary to charge it precisely according to the truth; but the information or indictment may state one time and the proof show a different one without involving an objectionable variance.</p> <p>Rape: Resistance: Pear. The submission to the jury in a trial for rape of the question whether the accused put the prosecutrix in such fear as to preclude her from offering resistance, is held not error.</p> <p>Practice: Exceptions. The practice of taking general and obscure exceptions at the moment, in order to cover the case and enable counsel on subsequent critical examination to raise points which have never been suggested at all to the mind of the trial judge, is objectionable on many grounds, and is contrary to the theory upon which points are allowed to be.raised by exceptions.</p> <p>Rape: Resistance: Threats: Pear. Evidence given in explanation of delay on the part of the prosecutrix in making complaints, that she, being a young girl, and living in defendant’s family, was afraid to go away for fear he would bring her back and treat her worse than ever, and that he threatened to kill her if she exposed him, is not open to the objection that it tends only to show the fear of a future possible or threatened danger, and not one presently impending.</p> <p>Rape: Delay in making complaint: Res gestee: Credibility. Delay in making complaint is not a fact belonging to the res geslce> but is only material as bearing upon the credibility of the prosecutrix; and the credibility of her testimony, like that of other witnesses, is a matter for the consideration only of the jury.</p> <p>Allegation of error: Record. An allegation of error will not prevail unless the record as made up affirmatively shows that the error alleged was in fact committed.</p> <p>Practice: Charge to the jury: Allegation of error: Record: Presumptions. Where complaint is made of a charge to the jury, in reference to a claim that the credibility of the prosecutrix as a witness was destroyed by her denial on cross-examination of having given certain testimony before the examining magistrate, which suggested that the deposition taken before the magistrate might not contain the exact words of the witness, but the bill of exceptions does not set forth the deposition or the cross-examination, nor show that the deposition contained in fact what the witness denied, it will not be presumed in support of the allegation of error that there was a material variance between the deposition and the testimony such as to involve a substantial contradiction under oath.</p> <p>Charge to the jury: Rape: Character of prosecutrix. A proposition in a charge to the jury in a rape case, that it made no difference what the complaining witness did before or since the act if the defendant committed the crime as alleged, is construed, in connection with the rest of the charge, which explicitly submitted to the jury the question of the credibility of the prosecutrix and the reasonableness and probability of her testimony, to mean no more than that if the imputed fact was committed it was equally a rape whether the character of the prosecutrix was good or bad, and so construed is held not to be error.</p>

This was an action to recover part of the purchase price of logs alleged to have been sold and delivered by Holiday to Wilkinson. It appeared that defendant bargained with plaintiff for the purchase of one hundred and thirty-seven white ash logs then lying in the south branch -of Bad river, and paid him fifty dollars towards the purchase price.

<p>Evidence: Account stated. Evidence tending to show that the parties met and settled up, and that a balance was struck and agreed upon, is admissible to prove an account stated, and is sufficient to authorize the submission of the question as one of fact to the jury.</p> <p>Account stated: Evidence. £he admission in evidence iii an action upon an account stated, of an account between the parties tending to show dealings between them, is not error where the other evidence tends to show that such dealings had been examined and a balance agreed upon; moreover the account thus admitted in evidence in this casé could not have prejudiced‘the defendant.</p> <p>Accowni stated: Nature of original transaction. In an action'upon an account stated. only, the nature of the original transaction outof which the acknowledgment of indebtedness grew is immaterial</p> <p>Rule of evidence applied alike to both parties.- Onei at whose instance the issue has been confined to a single question cannot complain if the same rule of evidence which he has caused to be applied to his adversary is by the court afterwards applied to him' likewise.</p>

<p>Mortgages: Right of possession at common law.t A mortgage in common-law form, executed prior to the statute which deprived mortgagees of the right of possession, gave the mortgagee or liis assigns the right to go into the enjoyment of the lands and hold them until redeemed.</p> <p>Mortgages: Right of redemption: Laches. Where no steps have been taken to redeem such a mortgage for nearly forty years after its maturity, and more than thirty after an open attempt to foreclose, it will require a very strong showing to authorize a bill to redeem.</p> <p>Mortgages: Right to redeem: Right of possession. The right to redeem from such a mortgage, if outstanding, could not affect the right of possession, and could only be asserted by bill.</p> <p>Irregular foreclosure: Purchaser: Right of possession. The purchaser at an irregular foreclosure obtains all the rights of the mortgagee, including, m case the mortgage was made prior to 1813, the right of possession.</p> <p>Mortgages: Power of sale: Statutory provisions: Sales. The statutory provisions for foreclosure -are to be treated as a x>art of every mortgage with a power of sale executed under the statute; and the sale under the power is a distinct exercise of authority under the terms of the contract; and while it may not be effectual to bar redemption unless in, accordance with the statute, it conveys the title of the mortgagee, and that of the mortgagor subject to his redemption right.</p> <p>Statutory foreclosures: Officer: Deed: Statute of 1833. The officer who conducts a statutory foreclosure sale merely stands in the shoes of the mortgagee and represents both parties; and under the statute of 1833 the power of sale continued in force as a personal power, until completed by deed, in the person who’ acted when the property was struck off, passing in case of his death to his representatives, and not to any official successor; and where the sale was made by the sheriff he might at the proper time lawfully execute the deed, though his term of office had in the meantime expired.</p>

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

<p>Garnishee proceedings: Service of process: Compulsory novation. It is essential in order to bind the creditor whose claim is sought to be appropriated by means of garnishee proceedings, that there be service of process or its equivalent, and he will not be bound by an independent and spontaneous submission of his rights by his debtor. The intervention of the law according to its own substantial appointments can alone initiate compulsory novation.</p> <p>Vicarious service of process: Special relation to party. And where the service must be vicarious and it can lawfully be made only on some one standing in a special relation to the party sought to be served, the existence of such special relation is just as indispensable as, in ordinary cases, is the identity of the person served, with the defendant.</p> <p>Garnishee proceedings: Service of process: Waiver: Principal defendant. The bringing the right into the custody of the law by the application of process against some one competent to receive service, cannot be waived by the intended garnishee as against the principal defendant, and so as to bind him.</p> <p>Acceptance of service: Agency: Proof of service. An endorsement of acceptance of service on behalf of a foreign corporation by parties who therein describe themselves as agents of the corporation, has no legal force by itself as evidence of the fact of such agency, or as proof of such service as the law contemplates._</p> <p>Garnishee process: Justice's courts: Service: Acceptance: County. Service of garnishee process from justice’s courts cannot under the statute (Comp. L. 1872, § 6463) be made beyond the county; and an acceptance of service which shows that it was made outside the county thereby shows that it was made where the process had no legal force.</p> <p>Jurisdiction over persons: Exceptional methods: Vicarious service. All exceptional methods of obtaining jurisdiction over persons, natural or artificial, not found within the state, must be confined to the cases and exercised in the way precisely indicated by the statute.</p>

This action was brought by the bank in its own name upon a promissory note held by it as collateral security, and at the request of the owner thereof. The cause was tried by the court without a jury, and judgment was rendered for the plaintiff. Defendants bring error.

<p>Mortgages: Fraud: Deceit: Husband and wife. Where a husband, after soliciting and obtaining the consent of his wife to the mortgaging of her property to secure the purchase price of goods then, presently to be sold and delivered to him, presented to her, though without any false representations, and procured her to execute a mortgage covering also an old indebtedness of his, of which she was not informed, in addition to such purchase price, the mortgage was held void as to the prior indebtedness for the fraud, but valid as to the residue thereof.</p> <p>Fquity pleading and practice: Foreclosure bill: Installments: Decree. Upon a bill filed to foreclose a mortgage payable in installments at a time when only one installment had become duo and remained unpaid, and which seeks a foreclosure for that payment only, a decree covering in addition thereto other installments not yet duo when the bill was filed, is unwarranted.</p> <p>Fraud: Innocent parties: Superior equities: Drior indebtedness. One who has innocently received from a husband, to secure the purchase price of goods then presently sold and delivered to him, and also a prior indebtedness of his, a mortgage executed by his wife upon her own property, which, as to such prior indebtedness, was a fraud upon her, cannot claim to have equities superior to hers so long as the avoiding of the mortgage to the extent of such old indebtedness will not place him in any worse position than he originally occupied.</p>

<p>Certiorari to Circuit Judge of Monroe Circuit.</p>

<p>IFiZZs; Husband and wife: Attorney: Confidential relations: Jfi’aud. A wife being* desirous of devising her property so that her husband should have the benefit of it but his creditors should not deprive him of her bounty, and having consulted an attorney in the matter, and at his suggestion having devised the property in absolute terms to the attorney and another, on an oral understanding that they should hold the same for her husband’s use, the facts being undisputed and the attorney admitting the whole case and signifying his readiness to perform on his part, the trust was enforced in equity against the other devisee.</p> <p>Evidence: Equity jurisprudence: Jft'aud. The circumstance that the husband was the medium of his wife’s communications with the attorney, and that the only positive and distinct evidence of her intent to bestow the property on her husband consists of his statements at the time and of his testimony in the cause, is not an insuperable obstacle to the granting of relief, where many surrounding circumstances and facts that are undisputed corroborate, and none are in conflict with it.</p> <p>Attorney and client: Abuse of confidence: Fi'aud. An attorney thus advising the devise of property to himself on the pretense that he would only make use of it for another, but intending nevertheless to appropriate it to his own rise, would be guilty of a gross fraud and breach of confidence; and it would be equally a fraud if, having given the advice honestly, he should afterwards conclude dishonestly to keep the property.</p> <p>Hraud: Attorney: Associate. And the party who, under such attorney’s advice, was associated with him as trusted; would be in like position, and it would be a fraud in him to appropriate that which only by the attorney’s advice, given for another person’s benefit, is brought within his reach.</p> <p>Lands purchased by one and conveyed to another: Ti'usts. One who has voluntarily purchased lands and caused the title to be vested in another who retains them, is precluded by the statute (Comp. L.) §§ 4120-1)^ in the absence of fraud or mistake, from all relief, either at law or in equity.</p>

<p>Railroad: Voluntary subscriptions: Completion of the road. Where a party promises to contribute in aid of a proposed railroad, it would be implied as a condition, in the absence of express conditions, that the road should be constructed and operated; and upon this being done within a reasonable time, where no time was fixed, the promise would become operative and binding, and the party making it could not thereafter repudiate it.</p> <p>Promises in aid of proposed railroad: Company organized. The fact that a company was organized to build the road, at the time the promise was made, or that even in the absence of such a promise the road would have been built, would not defeat the promise.</p> <p>Railroads: Voluntary subscriptions: Conditional promises: Completion of road: Condition performed. Where such a promise is made to some one necessarily connected with or interested in the work being done, for the benefit of the company that has begun, or is about to undertake the work, then, upon completion of the work, or upon the performance of the conditions upon which the promise was made, the liability of the promisor becomes complete; there are also cases where expense is incurred or an obligation created under the promise, where a like liability would follow.</p> <p>Conditional promises: Performance of condition: Reliance on the promises. In all such cases the fair inference is, that the work was done or the expense or liability incurred in reliance upon the subscription or jjromise.</p> <p>Voluntary subscriptions: Interest. An allowance of interest on such a subscription from the date of the completion of the road, where the promise was to pay one year after its completion, and nothing is expressed about interest, is error.</p> <p>Conditional promise: Uncertain event: Interest: Demand: Suit brought. An agreement to pay within one year from the happening of an uncertain event ought not to bear interest, in the absence of any express promise to pay interest, until after demand, or where no demand was made* until suit brought.</p>

<p>Purchaser under decree: Risk of decree being set aside: Bona fide purchaser. A purchaser under a decree must ascertain at his peril whether the decree was warranted or not; and though the time for appealing l'rom the decree had expired when he purchased, he cannot claim immunity as a bona fide purchaser, from the effects of a subsequent order without notice to him, setting the decree aside as unwarrantably entered.</p> <p>Specific performance: Oral contract: Delay: Showing of excuse. Where a bill is brought against heirs of an estate for the specific performance of an oral contract made with their ancestor thirty years before, the delay must be excused by a very satisfactory showing of facts.</p> <p>Specific performance: Oral contract: Admissions: Announcement of intention not to perform. Admissions by the alleged vendor, of an agreement to convey, coupled with an asserted intention not to convey because of an act of waste committed by the vendee, are not very satisfactory evidence of the contract; and such an announcement of his intention not to fulfill the contract makes more culpable the laches of a long delay by the vendee in bringing his action.</p> <p>Contract to purchase lands: Evidence: Possession: Wild land: Disposses_ sion. Work done in raising crops on wild land partially brought under imperfect cultivation is not very conclusive as evidence of possession under a contract of purchase, especially not where it is shown that the party was once dispossessed of his occupation and a part of his crop appropriated by the alleged vendor.</p> <p>Laches. One whose claims as purchaser have been thus by actual dispossession distinctly denied must move promptly in the assertion of any rights he claims thereafter.</p> <p>Specific performance: Contract. It is essential to the granting of relief by specific performance that the contract he clearly and satisfactorily established.</p>

Clair Circuit. Tlie instrument sued upon in this case reads as follows: “ $100 St. Clair, Mich., Oct. 10, 1871. “For value received I promise to pay the Michigan Midland Railroad Company, its successors or assigns, the sum of one hundred dollars, sixty days after said railroad is open for traffic from St. Clair to Ridgeway Station. (Signed) “T. W. Bacon.”

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

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

<p>Sills of exceptions: Notes of the whole trial. Tlie practice of incorporating into a bill of exceptions the notes of the trial literally, without reference to whether they have any bearing on the law questions raised, is criticised.</p> <p>Assignment of errors: Exceptions. An assignment of error, not supported by any exception, will not prevail.</p> <p>Assumpsit: General issue: Evidence. Defenses to an action of assumpsit, going to the existence of any promise having legal force, are admissible under the general issue.</p> <p>Evidence: Promissory notes: Illegal consideration: Fraud: Extortion. Where the defense is made to a suit upon a promissory note, that it was given in compromise of a criminal complaint against the maker’s son-in-law and was procured through the entreaties of the daughter, whose fears had been played upon by the plaintiff with that purpose, it is competent to show what she stated to her father to induce him to give the note, as this was a part of the res gestee.</p> <p>Evidence: Objections. An objection to the inquiry put to defendant as a witness by his own counsel, as to what, if any thing, induced him to sign the note in suit, no ground of objection being given, is held not well taken, the inquiry being under the circumstances of no importance.</p> <p>Evidence: Immaterial inquiries. The exclusion of evidence in relation to previous dealings between plaintiff and defendant’s son-in-law, not connected with the transactions out of which the consideration for the note in suit was claimed on the one side to have grown, nor with the criminal prosecution, to compromise which the other side asserted the note was given, is held not to be error.</p> <p>Assignment of errors: Record. Allegations of error which the record as returned does not support, will not prevail.</p> <p>Evidence: Motives: Facts. The exclusion of the inquiry, put to the plaintiff as a witness by his own counsel, whether the settlement in which he received the note in suit, was made with a view on his part of compounding any felony or settling any criminal offense, or only for tho purpose of securing his just debt, is held, under the circumstances of this case, all the surrounding facts having been proved, not to be error.</p> <p>Promissory notes: Consideration: Suppression of criminal proceedings. A promissory note given in consideration of the suppression of proceedings* under a criminal complaint, is void in the hands of the promisee who was a party to the illegality, and he cannot enforce collection of it.</p> <p>Contracts: Illegality of consideration: Complete defense: Restitution. Illegality of consideration is a complete defense to the entire contract, though the consideration he in part valid; and it is admitted as a defense, not to heneñt the defendant, hut to protect courts of justice from being** made instruments to compel the execution of a contrivance to violate' the law; nor . will it he made a condition that restitution he made to the plaintiff of that part of the consideration which is legal; hut the law leaves the parties where hy their willful violation of it they have-voluntarily placed themselves.</p>

<p>Application for mandamus.</p> <p>This is an ajoplication to require respondents to cause an order to be drawn on the treasurer of their county in favor of the relator for the sum of three thousand two hundred and seventy-five dollars and five cents, .on account of an allowance made by them of the claim of Barry county for the expenses of the trial of George Vanderpool for the murder of Herbert Field in Manistee county, which trial was held in Barry county under an order for a change of venue. The bill presented to the supervisors of Manistee county for</p> <p>their action was as follows:</p> <p>For summoning 124 jurors.............................. $186 00</p> <p>For mileage and daily attendance of jurors and talesmen. 1,988 20</p> <p>For balance of board bill of jury............ 94 50</p> <p>For procuring witnesses for respondent by order of court 400 00</p> <p>For subpoenaing witnesses for people................... 132 33</p> <p>For attendance of officers on court and jury............ 438 50</p> <p>For ice used during trial........... 5 25</p> <p>For stationery and blanks used in said trial. ......... 5 00</p> <p>For boarding Geo. Yanderpool while in Barry Co. jail. 79 50</p> <p>For medical services for Geo. Yanderpool while in jail. 15 00</p> <p>For boarding wife of Geo. Yanderpool in jail while he</p> <p>was sick.............................................. 13 50</p> <p>Total..........,................................... $3,357 78</p> <p>Several of those items had been presented to and allowed by the supervisors of Barry county before their payment by that county.</p> <p>A conference Avas had between representatives of the two counties and it was arranged to have the claim allowed at the sum of throe thousand two hundred and seventy-five dollars and five cents; and the supervisors of Manistee county at the October session, 1872, accepted and adopted a report of their committee that the claim be allowed at that sum and an order be draAvn for the same; and at a special meeting in May, 1873, authority to draw such an order, with interest from January 1, 1872, was giAren to their chairman and clerk. This order, however, not being drawn, in October, 1874, the supervisors of Manistee county rescinded the alloAvance of the claim, and aftenvards wholly repudiated and rejected the claim. Demand for such order having been thereafter made and refused, this application is made for mandamus to compel it.</p>

Appeal in Chancory from Clinton Circuit. This cause coming on to be heard'on appeal at the October term, 1875, of the supreme court, it appeared that the testimony was taken in open court, and that what was returned aud treated as the evidence in the cause was but a copy of the stenographer’s transcript of his notes of the evidence, which was merely filed in the cause and had been sent up with the return without being in any way authenticated as a case settled as required by…

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

<p>False imprisonment: Evidence: Malice: Motives. In an action for false imprisonment, wliere the plaintiff has introduced evidence to show that defendant caused the arrest complained of at the instance of a third person to get plaintiff out of the way so that he could not testify as a witness in a suit then pending, defendant may give evidence as to conversations with such third person as to the arrest, tending to show that he was not induced to make the arrest for any such purpose.</p> <p>Exemplary damages: Evidence. Where exemplary damages are claimed and are admissible it becomes a material question whether the defendant acted prudently, wisely, or in good faith, and for this purpose the information on which he acted, whether true or false, is original and material evidence.</p> <p>False imprisonment: Criminal complaints: Sources of information. The information which, if believed, will justify making a criminal complaint, must be of such character and obtained from such sources that business men generally, of ordinary care, prudence and discretion, would act upon it under similar circumstances; and whether the facts of a case bring it within this rule, is a question for the jury.</p> <p>False imprisonment: Advice of counsel: Attorney. The advice of one not an attorney, but who sometimes advises his neighbors for pay, is not admissible in evidence as advice of counsel in an action for false imprisonment.</p> <p>False imprisonment: Evidence: Probable cause: Exemplary damages: Actual damages. In an action for false imprisonment, in procuring plaintiff’s arrest upon a criminal complaint and warrant which charged no offense known to the law, the question whether the defendant has reasonable or probable cause for making the complaint is wholly immaterial, except'as it affects the recovery of exemplary damages; his good faith coulfl not prevent the recovery of the actual damages plaintiff suffered.</p>

<p>Executors: Submitting a demand against the estate to litigation jointly xvith a demand against another. An executor or administrator cannot bind the estate by an arrangement with one having a demand against it and also one against a third party, to submit the question of liability and the amount thereof on both demands directly to the circuit court in a single suit.</p> <p>Estates of deceased persons:* Claim for services: Evidence. Where a claimant seeking to recover from an estate for services rendered the deceased in his lifetime has been cross-examined as to whether he had any arrangement as to price with the deceased, with inquiries so framed as to draw out the particulars of the contract of hiring, the party making such inquiries may not afterwards have the evidence stricken out as not responsive m that particular.</p> <p>'■Contracts: Reference to other instruments: Distinct agreements: Construction. The fact that an agreement between parties mentions another agreement between one of them and a third person, and uses the same language in part, quoting so much as was pertinent, does not necessitate their being read together if not so intended, and where each stands on its own basis and is capable of being construed and enforced independently.</p> <p>.Evidence: Employes: Silence: Admission: Failure to deny. The silence of an employe when his employer stated to a fellow employe in his presence that the former was to have a dollar a day and the latter should have the same, ought not to be treated as an admission of the truth of such statement, in his suit for wages, at least not in the absence of any showing that he in fact heard it, or that it was made in such a way as to call upon him to deny it if untrue; and the rejection of evidence of such statement is not error.</p> <p>Evidence: Conversations. The exclusion of parts of conversations between the parties, which are connected in sense with other parts thereof which were admitted and are pertinent to the subject matter in controversy, is held error.</p>

<p>Banks; President: Agency: Authority. It is doubtful whether a genera authority in the president of a hank to make discounts could empower him to make an arrangement under which the bank would surrender securities on receiving others which it was at, the same time agreed should- be mere nullities so far as the sureties were concerned.</p> <p>Guaranty: Bank president: Agency: Individual contract. A guaranty against loss or liability for signing as sureties, given hy a hank president in his own name and without authority from the directors, to those whom he had solicited thus to sign a note given to the hank to retire a prior note held hy it against their principal, is held to he the individual contract of the president, and not binding upon the bank.</p> <p>Guaranty: Banks; Sureties: General banking law. Such a guaranty, if made by the hank and binding upon it, would he a bar to any suit hy the hank against the sureties; and it is doubtful whether under the general hanking law a national hank could give such a guaranty in a case where the effect would he to make the paper discounted the paper of one party only, secured hy mortgage on real estate.</p> <p>Guaranty: Statute of frauds: Written instrument: Parol evidence. A guaranty to sureties against loss or liability is within the statute of frauds as an undertaking to answer for the debt or default of another; and when made in writing in the name of one party and purporting on its face to hind no other, can no more he shown by parol to he in fact the undertaking of a different party, than could such a liability be originally created by parol.</p>

<p>Certiorari: Parties. Certiorari to review proceedings to remove an encroachment upon an asserted highway, will not be dismissed on the ground that the plaintiff in the writ does not appear by the record tech, nically and formally as an original party, when it is apparent he has rights which were affected by the proceedings, and. that he was treated and recognized throughout as a substantial party.</p> <p>Highways: Encroachments: Existence of highways. In proceedings under the statute to remove encroachments and obstructions to highways, it is not competent to make trial of the question of the existence of the asserted highway; if its existence is seriously questioned, that must be settled m some other way.</p>