Volume 34 — Michigan Reports

Appeal in Chancery from St. Joseph Circuit. Held: from Williams v. Mayor, etc., of Detroit, 2 Mich., 560, down to Youngblood v. Sexton, 32 Mich., 406, that “chancery will not assume jurisdiction to restrain by injunction the collection of an assessment, under a warrant against, and levy upon the goods and chattels of the complainant, but will leave the person to his remedy at law.”…

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

<p>Premium note: Insurance policy: Surrender: Notice: Delivery to a stranger. A surrender of an insurance policy, such as to discharge the insured from liability on a premium note, under an arrangement that upon surrendering the policy the note should be delivered up, must be accomplished by a dealing immediately and directly with the company or its agents; and a delivery to a stranger, with notice to the company, is not enough.</p> <p>Premium note: Suit by foreign corporation: Record: Pi'esumpiions: Plaintiff's course of proof. Where in a suit by a foreign corporation upon a premium note, the plaintiff, as part of its case, introduced evidence of its authority to do business in Michigan, a court of review may legitimately assume, though the record does not otherwise disclose it, that the contract of insurance was made in Michigan.</p> <p>Premium note: Suit by foreign corporation: Evidence: Authority to contract: Presumptions. But where objection taken to the admission in evidence of the note sued upon, on the ground' that there had been no showing that plaintiff was authorized to do business in Barry county, was overruled and no reason given, it will not be presumed against this ruling, in the absence of any thing in the record to show it, that the contract of insurance was made in that county, though the plaintiff’s course of proof indicates it was made in Michigan.</p> <p>Practice: Presumptions. Nothing will be presumed against the correctness of a ruling, which does not appear by the record.</p> <p>Pills of exceptions: Evidence: Misstatements. The statement in the bill of exceptions, that all the evidence is set forth, when it is manifest such is not the fact, is misleading and wrong.</p>

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

This was an action of ejectment. On the trial the following facts were admitted by the counsel for the respective parties, such admissions being recorded by the official stenographer: 1. That the plaintiff claims title in fee to the lot in question ; that possession was withheld by defendants from December 1st, 1874, and that at the commencement of suit defendant Meyers was in possession as a tenant under defendant Taliafero, and that the latter claimed title. %.

<p>Appeal from Probate Court of Newaygo County.</p>

<p>Appeal from Probate Court of Newaygo County.</p>

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

on the subject of the admissibility of photographic copies, cited: Frank v. Chemical Bank, 37 Sup.

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

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

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

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

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

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

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

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

Appeal in Chancery from Superior Court of Detroit. ..This was a bill filed by three members of the defendant association, to enjoin such association from carrying out certain provisions of a new constitution, and of certain bylaws supplementary thereto, adopted by said society after it had been in existence for a considerable period, and which are alleged to be in violation of the statute (S. L. 1871, f. 209) under which the society was incorporated, and to constitute an…

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

This is an action of assumpsit brought by Hope against Crippen for damages for failure to deliver over certain notes alleged to have been received by Crippen from one Griffis to be delivered to Hope, in pursuance of an agreement between the parties.

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

<p>Proceedings on appeal from an assessment of taxes: Review : Writ of error. Proceedings under the statute (& L. 1872, p. 89), on an appeal to the circuit court from an assessment of taxes made by the auditor general, are not judicial in the proper sense of that term, and cannot be reviewed on writ of error.</p>

<p>Error to Ionia Circuit:</p>

This application is made to haye the respondent directed to vacate an order, in an ejectment cause brought by James M. Allen against the relator, denying a motion (1) for leave to move for new trial and (2) for a new trial.

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

<p>Written evidence: Construction■: Question for the court. Where a question, in issue depends upon written correspondence put in evidence, the authenticity and bearing of which is undisputed, it is for the court to* expound it and to instruct the jury directly and distinctly as to its legal effect upon the issue, and not to leave it to the jury to interpret and construe it.</p> <p>Registry law: Purchaser in good faith: Documentary evidence: Charge to the jury. The documentary evidence in this case showing distinctly that the plaintiff was not a purchaser in good faith and for a valuable consideration within the intent and meaning of the registry law, it was error for the court to lead the jury to suppose it was competent for them to find otherwise, instead of declaring to them the necessary legal effect of the unquestioned facts.</p> <p>Registry: Priority of record: Purchaser in good faith: Moral integrity. Whether one claiming protection under the registry law against a prior-unrecorded deed is or is not a purchaser in good faith and for a valuable consideration, does not necessarily involve any question as to his integrity or the merely moral quality of his acts and conduct in obtaining the conveyance.</p> <p>Deeds: Registry: Purchase in good faith: Prior unrecorded deed. A purchase of one not claiming to be present owner and of what is understood not to be an assured title, but merely something that will aid in getting rid of or overcoming any rights others might hold or assert, and which is made without any idea of dealing on the footing of an actual buying, or selling of the land, is not such a purchase in good faith as will prevail over a prior unrecorded deed.</p> <p>Conveyances: Registry: Priority of record. A transfer of lands worth a thousand dollars for a present payment of twenty-five dollars, which was not designed as a sale of the lands, but as a trade for an indefinite amount to be ascertained afterwards and to depend upon the success of the adventure, is not such a dealing as will invest the grantee with a right which by force of the registry law is sufficient to overcome a prior-unrecorded deed.</p>

<p>Written instruments: Construction. Ifc is for the court, and not the jury, to construe and determine the legal effect of written instruments introduced in evidence.</p> <p>Practice: ¡Rulings that do not prejudice. But where the court has left the question of the legal effect of a written instrument to the jury, their verdict will not be disturbed on review where upon a proper construction of the instrument no different verdict could, consistently with the other facts involved and determined by the verdict rendered, have been properly found; such a ruling could not have been prejudicial to the party complaining of it. •</p> <p>Lease: Mortgage: Construction: Wheat crop: Title. An agreement whereby one, in consideration of a promise to pay him four hundred dollars, lets to another a parcel of land for a year, agreeing to prepare the land and sow it to wheat, and authorizing the latter to enter the premises and harvest the same and do all things necessary to secure the crop, is a lease and not a mortgage; and under it the title to the wheat crop in question would be in the lessee, and not subject to attachment against the lessor.</p>

<p>■Street railway: Ordinance: Construction: Repaving: Materials: Repairs. Under an ordinance requiring a street railway company to “keep the surface of tlic street inside the rails and for two feet four inches outside thereof in good order and repair, provided, however, that upon the paved portion of said streets the materials for repaving shall be supplied at the expense of the city,” where the city directs the company to “raise and repair ” that portion of the pavement which is within the rails, at a time when it had become so worn and dilapidated that a reconstruction with new materials was essential, the city is bound to bear the expense of the materials; such repairs amount to repaving within the meaning of the proviso.</p>

<p>Fraudulent procurement of signature to written instrument: Statute construed. The clause of tlie statute (Comp. L. 1871, § 7590) relating to the deceptive obtainment of one’s signature to a written instrument, is not subject to the objection that it is of no legal force or efficacy because it does not contain the word “false,” nor any other term or expression of equivalent import, in the description of the facts to constitute the offense; the first branch of the section which specifies the intent and falsity of the fraud applies to and characterizes the second branch thereof.</p> <p>fraudulent procurement of signature to written instrument: Forgery. It is not essential to the statutory offense of fraudulently obtaining one’s signature to a written instrument that the facts should be sufficient to make out a forgery; the statute refers to forgery only to distinguish the kind of instruments which are the subjects of the offense, i. e., such as if forged would support a charge of forgery.</p> <p>Informations: Variance: Description: Amendments. Where it is claimed on the introduction of the note in evidence, the signature to which is alleged to have been fraudulently obtained, that there is a variance between the note and the description of it in the information, in that the words “North Branch” appended to the date were omitted in the pleading, it is competent to allow an amendment to meet the objection.</p>

<p>Services in aid of prostitution: Brothel: Mistress. A recovery in a court oí ,justice for services performed in aid of prostitution, as mistress of a brothel, etc., is not permissible; such services have no value whatever . in law.</p> <p>Defense based on one's own turpitude: Costs. On reversing the judgment because of the iniquity of the transactions out of which the claim arises, costs will not be awarded to the plaintiff in error for being successful in a defense based on his own turpitude.</p>

<p>Estoppel: Execution sale: Bidding. Attending and bidding at an execution sale, as of tbe property of a third person, will estop such bidder from setting up title in himself to the property sold, as against a purchaser whom he by his acts has induced to believe that he made no claim of title.</p> <p>Evidence: Transcript: Judgment. A transcript from a justice’s docket which is not certified as a transcript may be proved by the oath of the justice; but where neither certified nor otherwise x>roved it is not admissible in evidence to prove the judgment.</p>

<p>Highway commissioners: Trees: Removal: Trespass. A highway commissioner who has wantonly sold trees in a highway cannot justify his action, when sued in trespass by the owner, by the statute (Comp. L. 1871, § 1317) authorizing him under certain circumstances to order the removal of trees from the highway.</p> <p>Highways: Shade trees: Obstructions. The policy of our laws favors the planting and preservation of shade trees in the public streets where they do not constitute actual obstructions.</p> <p>Trees:' Highioays: Removal: Adjacent owner. Trees in the highway are the property of the adjacent owner; and if they encroach upou the highway and must be removed, he has a right, and must be afforded reasonable opportunity, to take them as living trees and transplant them • elsewhere.</p> <p>Highway commissioner: Removing trees: Justification. A highway commissioner who acts upon his own judgment in removing* trees, instead of instituting a prosecution, must take such risk as there may be of a jury differing with him in opinion in case he is prosecuted; and he should be prepared to justify his action, not upon his belief merely, but upon the actual fact.</p>

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

This was an action of assumpsit to recover the purchase price of certain goods sold and delivered by plaintiffs to defendant, and upon a promissory note made by A. A. Hough and endorsed by defendant and delivered by the latter' to. plaintiffs as collateral to the payment, of the purchase price of said goods. The plaintiffs failed to protest the note-when it fell due. Defendant recovered judgment below,, and the plaintiffs brought error.

<p>Replevin bond: Transfer of the cause: Sureties. The sureties on. a replevin, bond are not discharged by the transfer of the replevin suit from the Wayne circuit to the superior court of Detroit by virtue of the statute.</p>

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

Voorhees instituted garnishee proceedings in the court below against Sessions to reach moneys in his hands claimed to belong to the principal defendants, Sutherland, Perrin© and Frazell. It appeared from the disclosure that the money sought to be reached had been deposited with Sessions as register in chancery in pursuance of an order of the court by the receiver in a suit instituted to wind up a copartnership before existing between the principal defendants.

<p>Trespass to lands: Constvitctive possession: . Tax-titles held by third persons. In an action of trespass to lands, where the plaintiff is not in actual possession, hut bases his right upon the legal title and the constructive possession claimed to be drawn therefrom, evidence of tax titles held by third persons is admissible, such titles being prima facie paramount, and therefore, unless overcome, defeating plaintiff’s right of action.</p>

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

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

The matter in controversy in this case relates to a claim of the plaintiff in error against the estate of Edwin J. Bryan, deceased, of which defendant in error is administrator. The claim was upon two promissory notes and a small account. The commissioners on claims allowed the amount of one of' the notes and the account, and disallowed the amount 'of the other note.

<p>Promissory notes: Rule 70: Denying execution: Affidavit. An affidavit under rule 79, which, while admitting the signature to the note-declared upon appeared to be defendant’s genuine signature, avers that the same was obtained under circumstances, fully set forth, which would render him not liable thereon, is held sufficient to put the plaintiff to the proof of the execution and delivery of the note sued upon.</p> <p>Fraud: Evidence: Cross-examination. Where the defense of fraud is s,et up, a wide latitude should be allowed upon the cross-examination of a witness who was a participant in the transaction, and much must be left to the discretion of the trial court.</p> <p>Charge to the jury: Construction: Repetitions. The charge to the jury must be considered and construed as a whole, in the same connected way in which it was given, and upon the assumption that the jury did not^overlook any portion, but gave due and equal weight to every part; and where the effect of defendant’s negligence in signing papers has been once clearly and properly stated, it is not necessary to incorporate and repeat that instruction with every other portion of the charge upon which it has any bearing, .unless it is apparent that otherwise the jury might be misled.</p> <p>Promissory notes: Negligence in executing and putting in circulation: Good faith. While there may be cases where one signing and putting in circulation an instrument should be bound by the terms thereof, oven though it turned out different from what he supposed it to be, this rule does not go so far as to require a party signing in good faith what he has heard read, and -what purports to be a power of attorney, contract, deed, mortgage, or similar instrument, to be held liable in case a negotiable note of that date, of which he had no notice or intimation, should have been mysteriously lurking in the depths of the instrument so signed, and should afterwards turn up with his signature attached to it.</p> <p>Promissory notes: Negligence: Charge to the jury. In an action upon a promissory note, where the evidence on plaintiff’s behalf tends to show that defendant knowingly and deliberately signed and delivered the note at the same time that he executed two other papers, and that on defendant’s behalf, that only the two other papers, duplicate agency contracts, were executed or mentioned or read to him, and that there was no talk of a note, and no note shown or signed, there is no basis for presenting to the consideration of the jury the question of the effect of defendant’s negligence in signing and putting in circulation the note in question.</p> <p>Contracts: Negligence in executing: Comparison. Where-a party to an instrument undertakes to read it over in the presence and hearing of the other party thereto, in order that he may understand its contents before signing it, the party reading is both legally and morally bound to read it correctly, and the other interested party has a right to rely upon its being so read, and is not guilty of negligence in signing it without further examination.</p>

Appeal in Chancery from Barry Circuit. This bill was filed to restrain the collection of a tax in the sum of six hundred dollars, assessed as a township tax for the year 1873, in the township of Johnstown, for the-use and benefit of one Henry -Bera, a former treasurer of said township, to reimburse him for moneys he had paid over to the township to make good an amount of township moneys which. he had lost by robbery while he jvas such treasurer.

<p>Concessions on the trial: Admission of rule of law. A concession on the trial that the defendant, a city, is liable for the injury complained of, is but the admission of a rule of law, and the court is not bound to accept and act upon it if satisfied there was in ¿act no right of action.</p> <p>City improvements: Defects in the plan: Legislative action. Where complaint is made that the original plan of a city improvement is so defective as to render the work dangerous when completed, the fault found is with legislative action, and a suit grounded upon it is grounded on a wrong attributable to the legislative body itself.</p> <p>Public improvements: Appropriation of private property: Plan of the work. The distinction in principle is pointed out between the case where the complaint is that the work must necessarily cause an injury to private property equivalent to an appropriation of some enjoyment thereof to which the owner is entitled, and a case where the fault found is with the plan, as not being the most wise and prudent to protect against accidents.</p> <p>Highways: Guarding against clangers: Discretion: Local legislative action: Political question. The extent to which the public authorities shall guard the citizen against dangers when he is making use of a highway or other public convenience is and must be a matter of discretion. The wisdom and propriety of local legislative action cannot be made a judicial question; it is and must be a political question, and can arise only between the legislator and his local constituency.</p>

to the point that the declaration claimed to have been made by Roberts to Wilkinson, as to work enough having been done on the building contract to satisfy the noto, was neither a payment nor release for a consideration, nor did it create an estoppel in pais (for in the latter aspect the question of injury from reliance upon it was expressly taken from the jury), cited: Driskell v. Maher, 31 Mo., 325; Baker v. Briggs, 8 Pick., 122; Harris v. Brooks, 22 Pick., 195; Dewey v.…

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

Appeal in Chancery from Isabella 'Circuit. to the point that the grantor having an equitable or ineboate title when he conveyed, the patent afterwards obtained enured to his grantee in the prior conveyance, though there was no covenant in the deed, cited: Doe v. Wilson, 23 How., 457; Maxwell v. Moore, 22 How., 185; Berthold v. McDonald, Ib., 334; Ward v. Bartholomew, 6 Pick., 409; French v. Spencer, 21 How., 228; Quinney v. Denny, 18 Wis., 485; Crews v. Burnham, 1 Black,…

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

argued, among other things, that- the effect-of the whole charge was to submit the case to the jury upon the basis substantially of an ordinary deposit made • by Mrs. Burrows in her own name and payable to her,. while in legal effect the condition,that thepmoney should; be paid only to the order of Mr. Burrows made-dt payable to the latter, and that his endorsement-of the¡checks, was not a mere mode of withdrawing the -money* but a, part of the very contract of deposit out…

Appeal in Chancery from Lenawee Circuit. argued that the grants to Avery and to .Goulding & Morse are both by their express terms limited to the use of the flouring mill then on the premises, and confer no right to use the water for another and different purpose; that when the words used will admit of one construction which would limit the uso to a particular purpose, and another which would allow the use specified to be merely a measure of the quantity to be used, the…

<p>Error to Superior Court of Detroit.</p> <p>cited : Fleetwood v. City of N. Y., 2 Sandf., 485; Forrest v. Mayor of N. Y., 13 Abbott, 352; N. Y. & H. R. R. Co. v. Marsh, 12 N. Y., 308; Lott v. Swezey, 29 Barb., 87; 11 N. Y., 99; Cooley on Taxation, 565-70.</p> <p>cited: Nicodemus v. East Saginaw, 25 Mich., 456; First Nat. Bank, etc., v. Thayer, 21 Mich., 483; 2 Dillon Mun. Corp., 855 and notes; Jenks v. Lima, 17 Ind., 226; Preston v. Boston, 12 Pick., 7; Cook v. Boston, 9 Allen, 393; 13 Gray, 476; Baker v. Cincinnati, 11 Ohio, 534; Taylor v. Board of Healthy, 31 Penn., 73; Green v. School Dist., 57 Penn. St., 423; Cooley on Taxation, 565-70; Atwell v. Zeluff, 26 Mich., 118; McKee v. Campbell, 27 Mich., 497; Loud v. Charleston, 99 Mass., 208; Arnold v. Cambridge, 106 Mass., 352; Hunnewell v. Boston, Ib., 350; Hays v. Hogan, 5 Gal., 241; Falkner v. Hunt, 16 Cal., 167; Guy v. Washburn, 23 Cal., 113; Dillon Mun. Corp., 841 and note.</p>

<p>Criminal complaints: False imprisonment. One who in making a criminal complaint merely states the facts and circumstances to the prosecuting* attorney and swears to the complaint drawn by the latter embodying such facts, is not liable in an action for false imprisonment, though the-facts sworn to fail to make out a criminal offense.</p> <p>Criminal proceedings: Public matters: Private interference: Presumptions. All criminal proceedings being on behalf of the people, there is no legal presumption of any personal interference by private persons beyond what is made to appear.</p> <p>Criminal complaints: Statement of facts: False imprisonment. In criminal proceedings one who simply lays facts before a magistrate and leaves all determination to the unbiased and unsolicited conduct of that officer, is. not liable in trespass for false imprisonment unless he takes some part in furthering the arrest or urging the detention of the accused.</p>

<p>JDjectment: Joint plaintiffs: Undivided interests: Severance: Anomalous proceedings: Objector equally at fault. Where in an action of ejectment brought by two plaintiffs jointly, each claiming an undivided interest, after a trial and judgment in favor of one plaintiff and against the other, the cause had been treated as practically severed into two distinct suits, which were proceeded in separately,- though without any order of severance or change of pleadings, one branch being taken by defendants to the supreme court for review and there affirmed, and afterwards a new trial under the statute procured and a trial and verdict had and judgment rendered and satisfied, an objection interposed by the defendants when the other branch was moved by the plaintiff who on the first trial had been defeated, that there was no proper case before the court for trial, is not sustained where both parties have united in treating the action as divided, and are alike responsible for the anomalous character the proceedings have assumed.</p> <p>JDjectment: Guardian and ward: Guardian's sale: Jjimitations: Burden of proof. In an action of ejectment brought by one who had been under guardianship as a minor to test the validity of a sale by his guardian, the burden of proof upon the question whether the suit was brought within the prescribed time after the majority of the ward for bringing such suit, is upon the plaintiff.</p> <p>Burden of proof: Affirmative. Whenever between parties who are contending in any legal proceeding a particular issue is raised, either by formal pleadings or the regular prosecution of the controversy in matter of fact, he who in substance and effect, whatever the mere form, has the affirmative of that issue, and is in such position that if what is alleged on his side is not maintained his case will consequently fail, must certainly be bound to find evidence to support it, and of course a preponderance, if there be evidence on both sides.</p> <p>Burden of proof: Affirmative: Continuance of infancy. In general the burden of proof lies upon the party who seeks to support his case by a particular fact of which he is supposed to be cognizant; and one of the examples given is, that one who insists upon the continuance of infancy to defeat a new iDromise proved upon him at a given time, must prove that his nonage was still continuing at that time.</p>

to the point that in an action at law upon an award nothing dehors the award itself can be shown as a defense, not even fraud or corruption of the arbitrators, cited: Elmender v. Harris, 5 Wend,, 516; Efner v. Shaw, 2 Wend., 567; Fidler v. Cooper, 19 Wend., 285; Shoeron v. Wood, 5 Hals., 7; Owen v. Boerum, 23 Barb., 187; Shepard v. Briggs, 28 Vt., 81; Mitchel v. Bush, 7 Cow., 185; Harris v. Social M. Co., 8 R. I., 133; Barlow v. Todd, 3 Johns., 366; De Long v. Stanton, 9…

<p>Error to Calhoun óircuit.</p>

<p>Mandamus: Unliquidated demand. Mandamus does not lie to compel a city to pay an unliquidated demand, such as a claim on a quantum meruit for the value to the city of services performed and materials furnished on a contract which was afterwards forfeited.</p> <p>Quantum meruit: Unperformed contract: Measure of damages. The amount saved by the city by letting a new contract to complete the work is not’ the test of the amount equitably due to the prior contractor for work done and materials furnished under a contract he failed to complete.</p>

<p>^Eminent domain: Improvement of navigable rivers: Appointment of commissioners: Final order: Certiorari. In proceedings under the statute to condemn lands for improving the navigation of rivers; the order appointing commissioners to determine the necessity of the taking and to ascertain-the damages, etc., is not interlocutory merely, but is final so far as any action by the court is concerned, and may be reviewed on certiorari.</p> <p>Improvement of navigable rivers: Statute construed: Private ‘streams. The statute in question contemplates the improvement of navigable rivers, and not the creation thereof out of creeks and streams which in their natural state are in no sense navigable; and it is questionable whether it is applicable at all to streams strictly private, as such statixtes are usually not to be enlarged by intendment.</p> <p>.Eminent domain: Petition: Jurisdiction» The petition in such proceedings is jurisdictional, and must set forth all the facts necessary to show that the petitioning corporation is authorized to make the proposed improvement, and has taken all the necessary preliminary stops.</p> <p>■ Eminent domain: Improvement of navigable rivers: Petition: Dams: Consent of $up>ervisors. Such a petition, averring that the stream is a navi* gable one and that the improvements contemplated include three dams, must allege the obtaining of authority from .the board of supervisors to make the same, as they alone under the constitution (Art. XVIII, § 4) ■can authorize the bridging or damming of navigable streams; and the allegation of the procurement of the assent of the governor and attorney general and the approval of the board of control of the St. Mary’s Falls Ship Canal, as required by the statute, does not suffice in this particular, but that requirement is an additional one.</p> <p>Improvement of navigable rivers: Statute construed. There is a fatal defect in the statute under consideration, in that it makes no provision for the appointment of commissioners, and does not prescribe their duties, except by reference to certain sections of the plank road act, which are not broad enough to meet the requirements of this statute.</p> <p>legislation: Adopting by reference sections of another act: Construction. A statute thus adopting by reference parts of another statute must be construed precisely as if such adopted provisions had been embodied in it; and such a reference to a section of another statute cannot broaden or enlarge the scope of the language of such section beyond what it would* import if literally reenacted in the new statute in the place it was designed to fill.</p>

<p>Application, for mandamus.</p>

<p>Injury: Recovery: Lawful acts: Common rights. Injury alone will not support an action on tlie case; there must be a concurrence of injury and wrong; and if tlie act be not unlawful in itself, then unless done in a manner, at a time or under circumstances, which render it wrongful or lacking in due regard for the rights of others, there can be no liability for any injury that may result.</p> <p>Highways: Public use: Restrictions: Inconveniences incident to reasonable use. A highway is a public 'way for the use of the public in general, for passage and traffic, without distinction; and the restrictions upon its use are only such as are calculated to secure to the general public the largest practicable benefit from the enjoyment of the easement, and inconveniences such as are only incident to a reasonable use under impartial regulations are not actionable.</p> <p>Highways: Horses: Superior privilege: Improved methods of locomotion. Persons making use of horses as the means of travel or traffic by the highways have no rights therein superior to those who make use of the ways in other permissible modes; improved methods of locomotion are admissible, and cannot be excluded from existing public roads if not inconsistent with the present methods.</p> <p>Highways: Unsightly objects: Frightening horses of ordinary gentleness. In an action for injuries caused by a horse taking fright on the highway at an engine being propelled by steam, it is error to permit the right of recovery to turn upon whether the engine was calculated to frighten horses of ordinary gentleness; the bringing of an unsightly object into the common highway is not necessarily a wrong because of its tendency to frighten horses, any more than the construction of a bridge over a river is a wrong because of its tendency to delay vessels.</p> <p>Highways: Horses: Steam locomotives: Superior privilege: Negligence. If one in making use of horses as a means of locomotion on the highway is injured by the act or omission of another using a steam locomotive, the question is not one of superior privilege, but whether under all the circumstances there is negligence imputable to some one, and if so, who should be accountable for it.</p> <p>Highways: Engines: Negligence: Reasonable management: Question of fact. The engine as a means of locomotion in the highway is not necessarily a nuisance, and the question whether its use as such has in a particular instance been so negligently managed to the injury of others as to give rise to a right of action, is one of fact for the jury as a question, of reasonable conduct and management on the part of both parties.</p>

<p>Foreclosure: Parties: Subsequent purchasers: Muliifariousness. A foreclosure bill which makes certain parties defendants as subsequent purchasers or incumbrancers is not multifarious because it alleges that such defendants claim some adverse interest.</p> <p>Foreclosure: Parties: Subsequent purchasers: Adverse title. A title which is adverse and paramount to that of both mortgagor and mortgagee cannot be litigated in a foreclosure suit; but the question whether an asserted claim is such an adverse one as to come within this rule, depends not upon what is set up in the answer in regard to it, but rather upon what the bill charges and the proofs show to be its real character.</p> <p>Mortgage foreclosures: Subsequent purchaser: Releases obtained to cure defects: Adverse title: Decree. Where a subsequent purchaser of the mortgaged premises from the mortgagor, has, in order merely to perfect his title of record, procured quit-claim deeds from the mortgagor’s grantors under such circumstances as would render it fraudulent for him to set up such conveyances as a title adverse and paramount to that of the mortgagor, the mortgagee, under proper allegations in his foreclosure bill, may have such alleged adverse title declared null and void.</p> <p>Conveyances: Delivery of possession: Estoppel: 'Releases obtained to cure defects. Parties who have obtained'possession of lands from'their grantor cannot afterwards repudiate his title, and all releases thereafter procured by them to cure defects in the title of such grantor must be held to have been obtained in support of, and not for the destruction of such title.</p>

<p>School districts: Assessor: Money had and received: Official bonds. Art action for money had and received will lie in favor of a school district to recover district moneys'1 received by its assessor and which after expiration of his office he refuses on demand to pay over to his successor, and an action upon the assessor’s bond is not the exclusive remedy; the bond is required as additional security, but it does not supersede the officer’s individual responsibility.</p> <p>School districts: Assessors: Accounting to successor: Notice of election and qualification. An assessor cannot lawfully withhold the district funds in his hands when the same are properly demanded by his successor, a fortnight after the latter has been regulary elected and has accepted, and qualified, upon any claim that he is entitled to be first personally notified officially of such election and acceptance; he is chargeable with notice of these facts without any personal certification thereof.</p> <p>Referees: Report: Rinding of facts. The finding of facts in a referee’s report is not open to review upon exceptions where the proceeding is not so shaped as to raise the question whether any specific finding is unsupported by any evidence.</p> <p>Report of referee: Omission: Practice. Where it is claimed there has been • any improper omission in the report of a referee the remedy is to procure a further finding, and not to seek to raise the question by exception to the report*</p> <p>Sill of particulars: Evidence. Where suit is "brought against an official treasurer for a balance claimed to be in his hands, and the bill of par-* ticulars enumerates a number of items as claimed to have been received by defendánt, and then states that the ¡Specific demand sought to be recovered is a specified balance with interest, it is not error to permit plaintiff to question defendant as to sums received by him differing from those specified in the bill, where it is clear that no one is misled by it; the real purpose of a bill of particulars is to avoid a surprise at the trial by the bringing forward of unexpected claims.</p> <p>Official treasurer: Accounting: Regularity of proceedings to raise the public moneys. An official treasurer cannot defend an action to make him turn over to his successor the funds in his official custody, upon any questions of the regularity of the proceedings whereby the funds came into his possession.</p> <p>Evidence: Moneys paid out on written orders. Where it is claimed money has been paid out on written orders, the orders themselves are the best evidence, and if accessible, the first medium of proof; and the exclusion of parol evidence of such payment, in the absence of any showing that the orders were not producible, is not error.</p>

Clair Circuit. Counsel for defendant in error, when this cause was called,, objected to its being beard, upon tbe ground that no copy of the assignment of errors had been served on them, they being the attorneys for the defendant in error in the court below.

<p>JEstates of deceased persons: Residuary legatees: Executors: Bonds. The relative rights, duties and obligations of ordinary executors and of those •who are residuary legatees and have hied a bond merely to pay the debts and legacies, are considered..</p> <p>Estates of deceased persons: Residuary legatee's bond: Assets: MistaJce: Equity jurisprudence. i It is not admissible that one who has given the bond usually required of a-residuary, legatee (to pay the debts and legacies) and taken the estate and enjoyed it with all the rights of absolute owner, should be allowed, when called upon to pay the legacies, to refuse-on the ground that the estate turned out not to be so valuable as he had supposed, and to be released from his bond on surrendering up the assets to be administered in the usual way.</p> <p>Residuary legatee''s bond: Administration. And it is nothing to the point that the estate has thus far been honestly and economically administered, and that therefore the legatees have lost nothing; nor does it aid the-matter as to those who stand out, that the majority of the legatees assent.</p> <p>Residuary legatees bond: Debts and legacies: Sufficiency of assets. A residuary legatee’s bond is holden for payment of the debts and legacies at all events, and the sufficiency of the assets is one of the risks the residuary legatee voluntarily assumes when he elects to give such bond instead of the-ordinary executor’s bond; and equity cannot relieve him from that risk. The giving of such bond conclusively admits assets.</p> <p>JPraetice: Injunction bill: Bond to pay judgment: Decree. Where complainants in an injunction bill have been required to hie a bond to pay the judgment which they sought to stay, in case they should fail to invalidate it the hnal decree dismissing the bill may properly require payment of the judgment.</p>

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

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

<p>Case made from St. Clair Circuit.</p>

<p>Error to Wayne Circuit.</p> <p>as to the protection afforded the officer by a writ fair on its face, cited: O. L. 1871, §§ 7680, 8000, 8003; Dwinnels v. Boynton, 3 Allen, 310; Savacool v. Boughton, 5 Wend., 171; Beatty v. Perkins, 6 Ib., 385; Ortman v. Greenman, 4 Mich., 293; People v. Rix, 6 Ib., 144; Shipman v. Clark, 4 Denio, 446; Hallet v. Byrt, Carthews, 380; Foster v. Pettibone, 20 Barb., 350; Cook v. Hopper, 23 Mich., 511.</p>

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

<p>Replevin: Defense: Attachment proceedings: Contract rights. In an action of replevin against a constable to recover property lie had seized upon an attachment against a third person, the exclusion of a defense based upon contract rights to the property in the plaintiff in attachment, is held not error where no such rights were set up when the demand was made before the replevin suit was brought, and it does not fairly appear that the officer was instructed to hold on the footing of such rights, and where the contract set up gave the right of possession to another.</p> <p>Attachment: Modes of service: Statute construed. The statute as to service of writs of attachment from justice’s courts contemplates personal service if defendant can be found in the county, and if not, then, as the next best mode, the leaving of certified copies at his last place of residence in the county, and finally, as a last alternative, service upon the person found in possession of the property; and the officer is bound to use diligence to secure the best service, and may not adopt an inferior one until, after reasonable diligence running through the time given for it, all superior modes are found impracticable.</p> <p>Attachment: Return of service Personal service: Service by copy: Service on agent. And when the constable’s return shows that the only service made was by leaving the-papers with the person found in possession of the property, and that such service was made at a time when there was still another day left within which the personal service, or service by leaving a copy at the last place of residence, etc., was available, the justice acquires no jurisdiction to proceed with the case.</p> <p>Attachment: Service: Return: Amendment: Offer. And an offer to amend such return by parol evidence that the writ was not in fact handed back into the justice’s office by the constable until its return day, and that in the interval between such service as he did make and the return day he was unable to find the defendant, if competent, does not go far enough to cure the defect, in the absence of any proposal to show also that he acted under the writ in the meantime, and sought and was unable to find the defendant or his last place of residence in the county.</p> <p>Service: Return. In all cases the return of service should inform the court that lawful service has been made.</p> <p>Bes inter alios. It is not for a defendant in replevin to object that the plaintiff (acquired title from a third perssn through an abuse of confidential relations, so long as the person said to be thus defrauded is satisfied and makes no complaint.</p> <p>Attorneys: Dealings with client. There is no law in this state to prevent an attorney from buying a chattel of one person and then suing another in replevin to obtain possession of it.</p>

<p>Affidavit for capias: Conversion. An affidavit for a capias ad respondendum which charges clearly enough an unlawful conversion of the property of the plaintiffs, is held sufficient.</p> <p>Appearance bail: Officer making the arrest: Under sheriff: Obligee. Under the statute (Comp. L. 1871, § 6738) requiring bail bonds for appearance to be executed to the officer making the arrest, a bond running to the under sheriff, when that officer made the arrest, is not thereby rendered invalid.</p> <p>Bail pieces: Waiver: Bond. The failure to give bail pieces to the sureties on a bail bond, where they have waived their rights in the matter by not demanding them, will not prejudice the plaintiff in the action, nor invalidate the bond.</p> <p>Bail bonds: Assignment: Seal. An assignment of a bail bond need not be under seal, in the absence of such a statutory requirement.</p> <p>Bail bonds: Assignment: Official character. Such an assignment need not be made in the official character of the officer to whom the bond ran, the official character appearing in the bond itself; any assignment purporting to transfer the bond is sufficient.</p> <p>Appearance bail: Acceptance of plea: Waiver, The acceptance of a plea, and proceeding in the suit, is not a waiver of the right to proceed against the appearance bail.</p> <p>Bail bonds: Measure of damages: Judgment. In an action on a bail bond the judgment in the original suit is admissible in evidence, as fixing the measure of damages.</p> <p>Appearance bail: Sureties: Failure to put in special bail. Sureties on appearance bail become liable on failure to put in special bail to the same extent that sureties on special bail would if special bail had been put in.</p> <p>Appearance bail: Neglect to proceed against the sheriff: Option. Heglect on the part of the plaintiff to proceed against the sheriff or his bail, does not discharge the appearance bail, the plaintiff having the option to proceed against the sheriff or to take an assignment of the bond for appear¿mee.</p>

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

<p>Error to Menominee Circuit.</p> <p>This was an action upon a life insurance policy. Plaintiff recovered judgment below, and defendant brought error.</p>

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

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

<p>Criminal examinations: Resentment by grand jury. The examination of persons charged, with offenses not cognizable by a justice of the peace, was designed to take the place of a presentment by the grand jury, but it was not designed thereby to deprive the accused of any substantial right that existed before.</p> <p>Criminal complaints: Examination: Warrant: Offense charged. In making the complaint and in the examination of witnesses previous to the issuing of the warrant, the proceedings are not only ex parte, but general, and not confined to any particular offense, but the warrant must specify some particular offense, and the proceedings thereafter become specific and limited by the offense charged in the warrant.</p> <p>Warrant: Offense charged: Different degrees: Examination. "Where the offense charged in the warrant includes one or more others of lesser degree, the magistrate should determine which offense, if any, has been committed, to the end that the accused may not be put upon trial for an offense different or greater than that for which he had been examined and held for trial.</p> <p>Criminal examinations: Duties of magistrate: Offense charged. The examining magistrate is not to be required to nicely weigh evidence as a petit jury would, nor to discharge the prisoner where there is a conflict of evidence, or in case of a mere reasonable doubt of his guilt; and his inquiry may extend to all the facts connected with the charge, though they show an offense different or greater than that charged; but if it appear that a higher or different offense has been committed, a new warrant should thereupon be issued charging the proper offense, upon which an examination may be had.</p> <p>Examining magistrate: Offense charged. The magistrate must, however, upon the examination of the whole matter, determine whether an offense has been committed, and he must at the same time specify it, so that it may be seen whether it is an offense bailable by him or not.</p> <p>Criminal examination: Specific offense: Murder: Manslaughter: Information : Motion to quash. "Where upon examination under a warrant charging the offense of murder, the magistrate refused upon request to determine whether the evidence adduced showed probable cause to believe the offense committed was murder or only manslaughter, and his return affirmatively showed such request and refusal, an information for murder having been filed, it was held that a motion to quash on this ground ought to prevail.</p>

to the point that a deed carries all the vendor’s interest, cited: 26 Mich,., 399; that a grant of a reversion carries with it, as an incident thereto, the rent remaining to grow due: 14 Bart., 654; 17 Barb., 155; Bank v. Wise, 3 Watts, 394; Taylor L. & T, §§ 154, 161; 1 Wash, on R. P., 340, §§ 8, 9; that the doctrine of attornment is inconsistent with our institutions, being feudal in origin, and must be confined to cases where its application is a necessity: 1 Foster, 234;…

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

<p>Eminent domain: Condemning lands for mill purposes: Petition. The petition whereby proceedings are instituted to condemn lands for mill purposes under the statute (8. L. 1873, p. 486) should show affirmatively that the proposed dam will not injure any mill or mill site, above or below, on the same stream, this being a limitation expressly fixed by the statute upon the exercise of the right conferred.</p> <p>Eminent domain: Dams: Navigable streams: Authority from supervisors. Petition. The constitution (Art. XVIII., § 4) inhibiting the damming of navigable streams, except by authority of the supervisors, the petition, by which lands are sought to be condemned for the erection of a dam for mill purposes 'should show whether the stream is a navigable one or not, and if navigable, that the requisite permission has been obtained.</p> <p>Proceedings to condemn lands: Petition: Jurisdiction. In such proceedings the petition is jurisdictional and should affirmatively allege every fact necessary to entitle the petitioner to make the desired improvement, and to enable the parties whose rights would be affected thereby to disprove the same.</p>

<p>foreclosures: Production of securities: Loss: Continued efficacy. In a foreclosure suit: tlie production of the securities is necessary to enable the complainant to recover, unless their loss is sufficiently accounted for and clear proof given of their continued efficacy.</p> <p>foreclosures: Lost securities: Long delay. Where a foreclosure bill is brought against an alleged subsequent purchaser, after the death of the mortgagor and nearly twenty years after the maturity of the mortgage, a very satisfactory showing of a continuing obligation is required, in the absence of the securities themselves.</p>

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

<p>Mortgages: Certificate of deposit: Payment: Risk of loss. Complainant negotiated with defendant for a loan of $2,000 to enable him to pay off two mortgages on his farm, one for $600 and one for SI,000, the latter held by one McGinnis, and past due but payment not required for three months to come; defendant was willing to loan the amount only on a first mortgage on the farm, but on applying to his banker for the funds, the banker, though owing him more than the amount, could not well pay the whole sum at once, and it was therefore arranged that one-half should be paid down, and turned over to complainant, out of which the $600 mortgage was to be satisfied; that complainant should give defendant a mortgage on the farm for $2,000, and that the banker should give his certificate of deposit for $1,000 payable to the order of complainant when the McGinnis mortgage should be. discharged; the banker failed before the day at which it was arranged the McGinnis mortgage was to be paid and the certificate became worthless; complainant paid back the thousand dollars received from defendant, with the interest thereon and tendered him the certificate of deposit and required a discharge of his mortgage, which being refused he filed this bill to have the mortgage declared satisfied:—</p> <p>Held, That there being no express agreement that complainant should receive the certificate as payment, and the fair inference from all the facts being that it was only held by him as collateral and not as payment, the loss upon the certificate should be borne by defendant and complainant should have the relief prayed.</p> <p>Evidence: Certificate of deposit: Ownership: Bank accounts. In such case the fact that defendant after the giving of this certificate of deposit settled with the banker on the basis of a credit to the latter for the amount • thereof could have no bearing on the question of-whose risk the certificate was held at, for the banker should, as between him and defendant, be credited with the amount of the certificate while it was outstanding, no matter who owned it.</p> <p>Evidence: Certificate of deposit: Risk of loss. Nor does the fact that complainant attempted to get the money on the certificate before the day fixed tend to show an understanding that he considered the certificate as being held at his risk.</p> <p>Mortgages: Refusing discharge: Statutory penalty: Good faith. There having been an honest difference between the parties regarding their rights, the statutory penalty is not imposed upon defendant for refusing to discharge the mortgage after it had been satisfied.</p>

<p>Declaration: Plea to the merits: Failure to state any cause of action. The objection that the declaration fails to state any cause of action is not waived by pleading to the merits instead of demurring; but the point may be made by an objection to the introduction of any evidence.</p> <p>Pleading: General issue: Waiver: Technical defects: Substantial allegations. While the plea of the general issue waives technical and formal objections to the declaration, it does not waive the essential allegations of a cause of action.</p> <p>Declaration; False representations: Statement of a cause of action. The declaration in this cause, which seeks a recovery of the amount of a note of a third person which it is claimed defendant passed to plaintiff under fraudulent representations as to its value, is held lacking in the substantial matters essential to make out such a cause of action, or any other.</p>

This is an action o£ ejectment, originally brought by Eoswell Barnes against William R. Cobb. The plaintiff having-died after issue joined, leaving Sarah C. Albright his sole heir at law him surviving, the latter was permitted to appear and prosecute the suit. The cause was tried by the court without a jury, and a written finding of facts was made and filed. Judgment was rendered for the defendant, and the plaintiff brought error.

■Error to Wayne Circuit. to the point that the law would imply a promise to pay for the labor performed by defendant for the plaintiff under the circumstances, cited: Weston v. Davis, 24 Me., 374; Hertzog v. Hertzog, 29 Penn. St., 465; Abbott v. Herman, 7 Greenl., 116; James v. Bixby, 11 Mass., 34; 7 Mich., 301; 8 Mich., 519.

<p>Log-lien law: Special proceedings: Construction: Affidavit. The proceedings tinder the log-lien law (S. L. 1873, p. 436) are special and must conform strictly to the statute; and the affidavit for attachment, therein provided for, is jurisdictional, and if it omits any material allegation which the statute requires, the writ will afford no protection to the officer executing it, and he will be guilty of conversion for seizing property upon it.</p> <p>Log-lien law: Affidavit: Kind of services performed. An affidavit for such writ, which alleges that the plaintiff's performed labor upon the logs sought to be attached, but fails to specify the kind of labor or services performed, or to show that it was labor or services of the specific character prescribed by the statute, is fatally defective.</p> <p>Jurisdictional defects: Appearance and plea to the merits: Waiver. And such a defect is not a mere irregularity that will be waived by the defendants appearing in the suit and pleading to the merits.</p>

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

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

to the point that the performance or completion contemplated by a contract is such only as is required by the true spirit and meaning of the contract and the intention of the parties as therein expressed, cited: 2 Bars.

Exceptions from Recorder’s Court of Detroit. argued that a bigamous marriage is always void; that no man can. lawfully marry when he is already married; that the gist of the offense is the going through the ceremony of marriage and living with the woman as if married when the party is already lawfully married; that the violation of two statutes does not relieve from liability under either; that two wrongs do not make a right; that even where the second marriage is incestuous…

<p>Equity pleading: Allegation of consideration: General demurrer. On general demurrer to a bill in equity, general allegations of matters merely going to make up a completed consideration are good enough, though it is more correct pleading to set them out specifically.</p> <p>Consideration: Release by wife: Dower: Homestead. A release by a wife of a dower and homestead interest is a valuable consideration and sufficient to support a lawful contract.</p> <p>Contracts: Statute of frauds: Performance. A contract to convey a parcel of land to a wife, in consideration of her joining her husband in a deed of a homestead, and thereby releasing her dower and homestead rights, is held taken out of the statute of frauds by performance, when the deed has been fully executed and delivered.</p> <p>Equity pleading: Specific performance: Bona fide purchaser: Demurrer. A bill by the wife for specific performance of such a contract, to which a third person, to whom defendant has conveyed, is made a party, which avers that complainant is in possession, and indirectly that such third person knew her equities, is not open on general demurrer to the objection that it fails to allege that he lacked the qualities of a bona fide purchaser.</p> <p>Specific performance: Bill of complaint: Prayer: Compensation. A bill which prays for specific performance as the primary remedy and for compensation as alternative relief merely, is not subject to the objection that it is filed for compensation only.</p>

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

This was an appeal by Erviu Palmer from the 'decision of the commissionei’s on claims in the matter of the estate of James Lee, deceased, disallowing his claim.

<p>Evidence: TJ. 8. land patent: Transcript of record: Certificate. A transcript of the record of a United States patent of lands, certified by the commissioner of the general land office to be “a true and literal exemplification from the record in this office,” is held to be sufficiently certified under the United States statute (llev. Slat., p. 168, § 891, p. 454, §§ -2469-70) to be admitted in evidence.</p> <p>Evidence: Deeds: Ejectment It is no valid objection to the admission in-evidence of a deed to the plaintiff from one who is shown to have been sole heir of the grantor in a previous deed, in plaintiff’s chain of title, which was defective, that such later deed recited that it was given to-supply the defect in the prior deed, and that such prior deed had not been produced and proved; the recital did not detract from the force of the later deed, and if the prior deed was valid, plaintiff had the title-through it, and if not, then the later deed transferred it.</p>

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

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

<p>■Special findings: General verdict: Inconsistency: Statute construed. Ifc is* only competent, under the statute (Comp. L. § 6026), to render judgment upon special findings of fact, and against the general verdict, upon the ground that they are inconsistent, where it is impossible, though all presumptions be made in favor of harmony, to reconcile the special findings with tiie general one.</p> <p>Special questions to jury: Construction: Controlling general verdict. Special questions to the jury and their answers thereto are to be applied by the record only, and not by explanations outside the record; and such a question and finding, which regarded in the light of the record is meaningless or irrelevant, ought not to control a general verdict.</p> <p>Special findings: Inconsistency: General verdict. Where two special findings are inconsistent with each other, and only one of them is inconsistent with the general verdict, théy neutralize each other and leave the general verdict to stand.</p> <p>Replevin: Special findings: Possession: Detention: General verdict. Where in an action of replevin the jury in response to one special question have answered that the property was not detained or held by defendant when the suit was brought, and to another that he was connected with the detention or possession thereof, it is to be presumed their meaning was, that though defendant did not' personally hold or detain the property,, he was a party in some way to the detention; and so construed, these special findings are not inconsistent with a general verdict for plaintiff.</p>

The proceedings in question were taken to establish a public highway through lands belonging to the plaintiff in this writ.

<p>Chattel mortgages: Registry: Subsequent purchasers or mortgagees in good faith. Tlie statute (Comp, L., § 4706), which makes an unrecorded chattel mortgage void against “subsequent purchasers or mortgagees in good faith,” is intended to protect those only who have acquired rights such as would render them liable to be defrauded but for this protection against instruments of which they had no notice when they obtained their rights.</p> <p>Bona fide purchaser. A purchaser who has paid nothing does not come within this protection, and no one can be protected as a bona fide purchaser except to the extent of his x>ayments made before notice.</p> <p>Chattel mortgages: Legal title: Sales by mortgagee: Accounting for proceeds. A chattel mortgage does not transfer the legal title until after foreclosure or something equivalent thereto, which must usually be by a sale; and the proceeds of sales by the mortgagee are to be treated as moneys collected to apply on the security, and do not belong to the mortgagee beyond the extent of his lawful claim as a creditor.</p> <p>Replevin: Special property: Chattel mortgages: Mortgagee’s interest. Under the statute (Comp. L., § 6764) requiring judgment in replevin to be according to the respective rights and interests of the parties in the property, the exact extent of the subsisting claim of a mortgagee who brings replevin is a legitimate subject of inquiry.</p>

<p>Appeal in Charicery from Newaygo Circuit.</p>

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

<p>Application for mandamus.</p>

<p>Mandamus: Practice. Mandamus is denied where the record fails to show upon what papers the circuit judge based his action which is sought to be reviewed.</p>

<p>Lumbering contract: Failure of performance: Both parlies in default: Damages: Profits. Under a lumbering contract the vendor, who has come short of complete performance and detained some logs that were ready for delivery, is held not entitled to recover for profits which would have accrued to him had he cut and delivered the contract quantity of logs, upon the claim that he was disabled from getting the full quantity by reason of the purchaser’s failure to advance as he agreed.</p> <p>Lumbering contracts: Plaintiff in default: Logs delivered and appropriated: Measure of recovery. Where under a lumbering contract the purchaser has been in fault in the times and amounts of his advances, but which have nevertheless been received, and the vendor has been in fault in the quantity and quality of the logs delivered, which, however, have been accepted and appropriated by the purchaser, the vendor may recover the value, not exceeding the contract price, of the logs so delivered and accepted and not paid for by the advances, less any damages suffered by the purchaser by reason of the vendor’s default.</p> <p>Quantum valebat: Limit of recovery: Contract price: Value. The limit of recovery in such case could not exceed either the contract price or the true value at the time and place of delivery and acceptance.</p> <p>Quantum valebat: Basis of recovery: Contract. The recovery on the quantum valebat for the value of chattels delivered and accepted in pursuance of a contract which the plaintiff has failed to completely perform on his part, is not based on the contract, but upon the benefit which the defendant has received from the appropriation of the property of the plaintiff.</p> <p>Quantum valebat: Measure of damages: Recoupment. The plaintiff’s recovery in such an action being upon the basis of the true value of the property delivered and accepted, the defendant would not be entitled by way of recoupment to have this value reduced by the excess in value of the contract quality, but would be permitted to set up a counter claim for the difference between the contract price and the market value of the contract quality of the amount so delivered.</p> <p>Quantum valebat: Logs: Sales: Advances: Recoupment: Damages. A vendee in a lumbering contract, who has failed to make advances according to his contract, cannot, when sued by his vendor on the quantum valebat for logs delivered and appropriated, recoup» damages for the nondelivery of logs which by such default the vendor was disabled from delivering.</p> <p>Log contract: Percentage of uppers: Scaler. The contract in question, providing that the logs shall be “No. 1 and 2 in quality and free from defects, and are at least to run twenty-five per cent, into the upper qualities,”" ancl bo “ scaled as fast as banked, by some person to be mutually agreed upon,’* is held not to empower the scaler to go into the percentage and to conclude the parties in that respect by his scale.</p>

argued that the legal title to land cannot .pass by parol under the provisions of our statute: Comp■ L. 1871, § 4692 j that in ejectment the legal title only, and the right of possession under it, is involved, and an equitable title, however clear and indisputable, will not support the action: Tyler on Ejectment, 75; Adams on Ejectment, 32; 2 Greenl. on Ev., § 331; McPherson v. Walters, 16 Ala., 714; Hamlin v. Hamlin, 19 Me., 141; Delaplaine v. Hitchcock, 6 Hill, 14; Whitney…

<p>Error to Saginaw Circuit.</p> <p>on the subject of interest, cited: 1 Am. L. G. (519), 632, et seq.; Van Beuren v. Van Gaasbeck, 4 Cow., 496; Reid v. Renns. Glass factory, 3 Cow., 393; S. C., 5 Cow., 587; Smith v. Velie, 60 N. Y., 106; Wood v. Belden, 59 Barb., 549; Beardslee v. Horton, 3 Mich., 560; Davis v. Horton, 18 Mich., 25; and on the subject of application of payments: 1 Am. L. C. (277-8, 280), 342, notes 1, 2, 3, 344, note 7, et seq.; Mayor v. Patten, 4 Cranch, 317; Otto v. Klauber, 23 Wis., 474.</p> <p>cited on the subject of interest: Reid v. Renns., etc., 3 Cozo., 393, 426; Esterly v. Cole, 3 N. Y., 502; Emerson v. Atwater, 12 Mich., 314; Van Rensselaer v. Jewett, 5 Denio, 135; and as to application of payments: Allen Culver, 3 Denio, 278; Seymour v. Van Slyck, 8 Wend., 403; Stone v. Seymour, 15 Wend., 19; Pattison v. Hull, 9 Cow., 747; Simpson v. Ingraham, 2 B. & C., 65.</p>

<p>Error to Wayne Circuit. ''</p> <p>cited: Fisher v. Boston, 10 Mass., 57; Hafford v. New Bedford, 16 Gray, 297; Jewett v. New Haven, 38 Conn., 368; Walcott v. Inhab. of Swampscott, 1 Allen, 101; Buttrick v. Lowell, 1 Allen, 172; Small v. Danville, 51 Me., 359; Wharton on Negligence, § 191; Shearman & Redfield, on Negligence, 163-6.</p> <p>cited: Johnson v. Municipality, 5 La. An., 100; Highway Comrs. v. Martin, 4 Mich., 557; Detroit v. Corey, 9 Mich., 165; Bailey v. Mayor of N. Y., 3 Hill, 531; Detroit v. Blackeby, 21 Mich., 84; Barton v. Syracuse, 36 N. Y., 54; West v. Brockport, 16 N. Y., 161; Henley v. Mayor, etc., 5 Bing., 91; Mayor of Lynn v. Turner, Cowp., 86; Rochester W. L. Co. v. Rochester, 3 N. Y., 463; Hutson v. Mayor, 9 N. Y., 163; Sheldon v. Kalamazoo, 24 Mich., 383; Park Comrs. v. Com. Council, 28 Mich., 228; Oliver v. Worcester, 102 Mass., 449; Eastman v. Meredith, 36 N. H, 295; Lloyd v. Mayor, 5 N. Y., 369.</p>

Appeal in Chancery from Eaton Circuit. to the point that complainant’s title was such only as the locator, Britton, acquired by his entry and location, and this was an equitable title, cited: 4 Wall., 210; 11 Wheat., 200; 3 How., 441; as to complainant’s right to come into equity for relief: Gomp. L., 1871, § 5072; 1 Doug., 546; 9 Mich., 381; 16 Mich., 135; 13 Peters, 436; 11 Wheat., 380.

Joseph Circuit. to the point that a chattel mortgage, so far as it attempts to subject after-purchased property of the mortgagor, or his assigns, to its operation, is void and creates no lien on such property and gives no authority to the mortgagee to seize and sell the same, and that a mortgage, like a sale, requires a subject in esse and in the power of the mortgagor, cited: 2 Hill on Mart., 887, §§ 16-24; Jones v. Richardson, 10 Met., 481; Edgell v. Hart, 9 N. Y., 217;…

argued that tbe question of time for appearing and pleading is not one of absolute right, but one of convenience to tbe court, and is not in the domain of those powers which the legislature alone can exercise and cannot delegate: Wayman v. Southard, 10 Wheat., 42; that the legislature can confer upon courts the power to prescribe tbeir own rules of practice: Bank v. Halsted, 10 Wheat., 61; Beers v. Houghton, 9 Pet., 329; and that the rule in question comes within this class:…

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

<p>Transportation contracts: Article of merchandise: Measure of damages. The measure of damages for the breach of a contract to transport from one market to another an ordinary article of merchandise always to be found in the market, is the excess in value at the place of destination at the time when by the contract the merchandise should, have arrived there, beyond its value at the place of shipment, with the agreed freight added and such expenses as under the contract the shipper would have incurred in loading and unloading, etc., had the contract been performed.</p> <p>Agreement to carry by vessel: Transportation by rail: Unreasonable expense. On breach of a contract to carry by vessel an ordinary article of merchandise, the shipper will not be justified in procuring shipment by rail if the railroad prices would render it unprofitable. A person has no right to put others to an expense of such a nature as he would not as a reasonable man incur on his own account.</p> <p>Transportation contracts: Duty of shipper: Immediate action: ¡Speculating on future chances. In case of an article of specific utility for preservation» where the circumstances are such as to justify employing any transportation which is accessible, and to render the difference in cost in transportation a proper measure of damages, the shipper is bound to seek other means of carriage immediately at hand, and is not permitted to await his leisure and speculate on future chances by making piecemeal shipments.</p> <p>Evidence: Agency: Steamboat clerk: Statements. The statements of a steamboat clerk, not shown to occupy any position of general agency, are not admissible in evidence to bind the corporation employing him, as to matters not within the scope of his employment.</p> <p>Evidence: Contracts: Inferences: Actual terms. Questions put to provea contract, which call for the inferences of the witness rather than the actual terms of the contract, are improper.</p>

argued that the firm due-bill in Foote’s hands was at most but evidence that he had advanced to the partnership the amount thereof, and his right of recovery thereon would depend upon and be subject to an accounting between him and the firm; and his transfer of the due-bill to his wife, in payment of his antecedent indebtedness to her, would in legal effect operate only as an assignment to her of the firm indebtedness to him, and would give her no greater right as against…

<p>Error to St. Clair Circuit.</p> <p>cited: Nash v. Cutler, 16 Pick., 461; Rowley v. Stray, 32 Mich., 70.</p> <p>cited: Nash v. Cutler, 16 Pick., 461; Sheffield v. Loring, 12 Mass., 490; Runey v. Edmonds, 15 Mass., 291; 18 Cal., 96; 36 Cal., 329.</p>

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

Appeal in Chancery from. Osceola Circuit. argued that the jurisdiction of courts of equity in cases of purpresture and nuisance, though not very frequently exercised, is undisputed: Waterman's Eden on Inj., ch. 11, p. 259; Attorney General v. Cohoes, 6 Paige, 133; High on Inj., § 519; 2 Story JEq., § 924; Angell on W. C., § 565; Attorney General v. Forbes, 2 M. & C., 123; that in cases of public nuisances an information will lie in equity to stop the mischief and restrain…

<p>'Mortgages: Registry: Notice. The purchaser of a mortgage is held hound hy such notice as the registry afforded of another mortgage of the same date, hut subsequently recorded, of which his vendor had actual knowledge.</p> <p>Mortgages: Simultaneous dates: Priority of acknowledgment: Notice. "Where two mortgages hear even date, it cannot he claimed that the earlier acknowledgment of the one latest recorded would necessarily show it was intended or given as a first security.</p> <p>Simultaneous mortgages: Foreclosure by advertisement: Marshalling assets. A foreclosure hy advertisement of one of two mortgages of even date, and designed to he simultaneous, would not he effectual to settle the relative rights of the foreclosure purchaser and the holder of the other mortgage; and a hill in equity would he necessary to determine such rights and to marshal the assets; and to do this a sale is necessary unless one of the parties shall take up the other’s mortgage.</p> <p>Fquiiy pleading and practice: Simultaneous mortgages: Foreclosure: Ratable application of proceeds. On a hill to determine and protect the rights of complainant under one of two mortgages of even date, which is framed on the theory of priority, hut which sets out the facts-sufficiently, the court, having found the two mortgages to be in law simultaneous, under the general prayer granted a decree for a foreclosure and sale, and a ratable application of the proceeds on the two mortgages, in case there should he insufficient to pay both.</p>

<p>Errors that do not prejudice. A refusal to submit the facts to the jury upon one branch of plaintiff’s claim because of defects in the declaration is held not error of which the plaintiff can complain where it is made to appear by the record that there was a fatal gap in his evidence.</p> <p>Tax± law: County treasurer: Forwarding delinquent tax lists: Extensions: Time. The provision of the tax law {Comp. L. 1871> § 1034) requiring the county treasurer to forward by the first day of March to the auditor general certified lists of lands returned as delinquent for unpaid taxes, which the auditor general is authorized to receive at any time during the month of March, is manifestly intended to serve as a guide in matter of time only in the ordinary cases where no extension of time for the collection of taxes is granted; and the requirement as to time, if in any view mandatory, in case of no extension, does not touch cases where extensions are allowed; and in such cases the county treasurer is only required to forward such lists promptly on receiving the proper returns from the collectors.</p> <p>County treasurers: Official bond: Forwarding'delinquent tax lists: Returns by collectors. In an action to charge the county treasurer on his bond with failure of duty in not forwarding to the auditor general lists of delinquent tax lands, it is incumbent on the plaintiff to show, not merely that returns of such lands were in fact made by the collectors to the ' treasurer, and that no transcripts were received from him by the auditor general up to April 1st, but also that the transcripts were not forwarded within a reasonable time after actual return to the treasurer by the collectors.</p> <p>Official duty: Presumptions: Ffeglect of duty. The law having made the action of the collectors a necessary preliminary to that of the county treasurer, due performance on their part will not be presumed, in the absence of evidence, in order to charge him with having failed to perform duly; the presumption of official regularity applies with equal force to each.</p>

to the point that under the bill of particulars evidence of the loan by plaintiff to defendant of a United States bond was not admissible, cited: Green’s Prac., § 1042 and cases there cited; and upon the irrelevancy of the evidence as to the pecuniary ability of the plaintiff to have made the loans claimed, cited: 1 Greenl. on Ev., § 52; Hilton v. Scarborough, 5 Gray, 422; Wheeler v. Packer, 4 Conn., 102; State v. Penly, 27 Conn., 587.

to the point that it was not competent to set up in defense to . the action a partly performed parol contract to receive payment in land, cited: Browne Stat.

'Appeal in Chancery from Kalamazoo Circuit. to the point that the delivery of the note and mortgage by Tripp to his wife, under the circumstances, constituted an equitable assignment, thereof to her, the note being payable to bearer and passing by mere delivery, and the mortgage being only an incident to the.debt and passing with it, cited: 3 Mich., 587; 13 Mich., 396; Green v. Hart, 1 Johns., 580; Walk.

<p>Negligence: Railroads: Usual manner of running trains. Negligence cannot be presumed, but .must be affirmatively proved; and it cannot be presumptively negligent to run a railroad train in the usual manner, in the absence of proof that such usual manner is in itself improper.</p> <p>Negligence: Question of fad: Weight of evidence. In. an action to recover from a railroad company damages for injuries to horses, claimed to/have arisen from neglect to keep up proper cattle guards, there being some testimony admitted without objection and having some tendency to prove the cattle guard insufficient, the submission of the question to the jury is held not to be error; a court of review will not consider the weight of evidence on writ of error.</p> <p>Charge to the jury: Testimony of single vjitness. The refusal of the trial court upon request to put the case to the jury upon the testimony of a single witness, or to instruct them that if they believe such a witness their verdict should be for a particular party, is not error.</p>

<p>Deeds: Execution in blank: Grantee: Consideration: Description: Agency: Authority. A Wank deed executed in a foreign state, containing no name of grantee, no consideration, and no description of property, and which came in that condition into this state, where the blanks for grantee, price and description of property were filled in by some one not shown to have authority, in writing or otherwise, from the grantor, in the hands of one having notice of the facts, can have no force or validity as a conveyance of title.</p>

<p>Treatment: Purchasers from administrator; Agreement to pay rent to widow: Dower: Terminating tenancy. Purchasers from an administrator having gone into possession under an understanding with the widow of decedent that they should have the occupation and enjoyment, not only in their own right, but also in her right as dowress, rendering to her a reasonable compensation by way of rent, Such: Widow cannot maintain ejectment against them without first terminating the tenancy.</p>

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

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

This was a declaration on common counts with a promissory note appended, signed Danaher & Melendy. The declaration contained no venue. The bill of particulars limited the recovery to the promissory note.

<p>Tax liens: Statute construed: Subsequent tax-title. The statute {Comp, L. 2872, § 2232) authorizing a recovery for the amount paid by the plain, tiff for tax-titles which for certain specified reasons are not valid, and making the same a lien upon the land, does not warrant a judgment declaring the amount so paid by plaintiff a paramount lien to that of a subsequent tax-title held by another upon the same land, which, though invalid as a title, is within the protection of the statute as a lion on the land.</p>

<p>Attachment: Affidavit: Amount due. An affidavit for a writ of attachment, which states positively the amount due over and above all legal set-offs, is not objectionable for want of the qualifying words “as near as may be;” the affiant states the sum as near as may be when he states it exactly.</p> <p>Attachment: Appraisers: Members of defendant's family. It is not open to one whose goods have been taken upon an attachment, to object, when the attachment proceedings come collaterally in question, that the ap. praisers were membex’s of his own family and consequently not disinterested, not freeholders, and were not sworn, where, though personally served and not shown to have been ignorant of the facts, he made no such objection in the attachment suit, the return averring that the appraisers were disinterested freeholders, and duly sworn; the statutory requirement of disinterested freeholders as appraisers is for his protection, and it cannot be presumed members of his family have an interest adverse to his.</p> <p>Attachment: Levy: Endorsement: Appraisal, The fact that no levy is endorsed on an attachment is immaterial where the sheriff’s return upon the writ recites a levy and is accompanied by the appraisal.</p> <p>Trover: Growing crop: Attachment levy: Measure of damages: Evidence. In an action by the sheriff against parties who have converted to their own use a growing crop upon which he had levied an attachment, the judgment in the attachment suit, though rendered after the conversion, is admissible in evidence to show the amount of the plaintiff’s lien.</p> <p>Attachment: Growing crops: Constructive possession: Bond. In case of an attachment of a growing crop, constructive possession is all that is required or contemplated by the statute; and the provision for a bond is applicable and appropriate as a protection against removal when in its ripened condition the crop shall have become fit for removal.</p> <p>■Statute of frauds: Interest in lands: Correct ruling: Immaterial remarles. A parol arrangement, whereby a man who had deeded land to his wife, reserving to himself by written contract the right of possession and to repurchase within five years, bargains to give up his right under such contract, is void under the statute of frauds; and a ruling to that effect is not made erroneous by the judge’s adding incidentally that “if the arrangement amounted to any thing, it would make the wife tenant of the husband, which was impossible,” such further remark being immaterial.</p>

This is trover, brought by Hill, as administrator of the estate of John A. Chambers deceased, against a son of the deceased, for the conversion of certain stock, grain and farming implements which the plaintiff claimed belonged to his intestate, and the son claimed as his own.