Volume 35 — Michigan Reports

<p>Rulings that donotpi'ejudice: Evidence: No tendency to make out a case. Erroneous rulings in giving or refusing instructions to the jury, which do not work any prejudice to the legal rights of the party complaining of them, are immaterial; and if upon the whole case it is plain the evidence had no tendency to make out a cause of action, the judgment against the plaintiff will not be disturbed for any errors in the charge to the jury.1</p> <p>Trover: Title: Agreement to sell: Delivery. A number of farmers having bargained their respective lots of hogs to S at an agreed price, of which a small part was paid down and the balance to be paid on delivery, the farmers to drive the hogs to thf shipping place, where they were to be weighed, paid for, delivered, and the title to pas' to S, and S having contracted to sell to M the whole quantity at a specified price per pound, receiving part payment down and the balance to be payable when the weight should be ascertained and delivery made by the farmers, or in default the payment down to be forfeited, and upon the day fixed for delivery, M being unprepared to make payment, and the hogs being ready for delivery, S sold the hogs the next day to B, who paid for them and drove them away:—</p> <p>Held, That SI could not, upon tender of payment, maintain trover against S and B, nor any other action based on his ownership of the hogs, for the transaction never vested the title in him. 2</p>

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

<p>Promissory notes: Finding of facts: Substantial defects: Special verdict. In an action-upon a promissory note, a finding of facts which deals almost exclusively with a defense set up, and fails to find either the giving of the note in suit by defendant, or that the plaintiffs were holders of it, is fatally defective; the finding being analogous-to a special verdict, it cannot be extended by inference or enlarged by intendment in material matters of substance.1</p> <p>Finding of facts: Failure to make out a case: Special defense. Where on a trial by the court without a jury the finding of facts is insufficient to support a judgment for the plaintiffs, with the defense stricken out entirely, the judgment for the defendant will, not be reversed for any errors in rulings as to the validity of the special defense set up.</p> <p>Promissory notes: Defense: Compromise: F'aud: Finding: Recital of evidence. Where a compromise is set up in defense, and is met with the claim of fraud in the compromise, the fact of a fraud committed against the plaintiffs should he directly found, and not merely a recital of the facts relied upon as tending to prove it.</p>

<p>Contracts: Delivery on rail of vessels: Vessels to be famished by vendees: Reasonable time: Cost of loading. Under a contract to cut during the winter of 1871-2 a quantity of cedar posts and to deliver them on the rail of vessels to be furnished by the vendees, at a specified price, it is held the purchasers were bound to furnish vessels within a reasonable time during the season of 1872; and that where vessels were not furnished * until 1874 the purchasers were not entitled, in the absence of any new arrangement, in an action brought against them to recover the purchase price of the posts received by them, to deduct the cost of taking the posts from the beach, where the vendors had delivered them for shipping, and placing them on the rail of the vessel.</p> <p>Evidence: Practice: The rejection of evidence which was inadmissible at the time it was offered, for want of evidence laying a foundation for it, is not made erroneous by the subsequent introduction of the required evidence, where the rejected evidence is not again offered and ruled out after the foundation has been properly laid.</p> <p>Charge to the jury: Evidence. The fact that the question to which the evidence related, the rejection of whicn is complained of, was submitted to the jury by a charge to which no exception was taken, will not affect the previous ruling rejecting the evidence; for aught that appears, subsequent evidence may have called for such a charge.</p>

<p>Highways: Proceedings to discontinue: Owner of a private way: Interior lot: Notice. The owner of a parcel oí land not fronting upon any highway, and whose only outlet is a private way two rods wide, belonging to him, and extending therefrom to the public highway, is entitled to notice of proceedings to discontinue such public highway, as much as if his whole parcel abutted upon it.1</p>

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

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

<p>Highway Commissioners: Contracts: Bridges: Township meeting: Proceedings: Construction. Where the validity bf a contract with the highway commissioners for the construction of a bridge is brought in question and made to depend, upon the regularity and validity of an electors’ meeting called to vote moneys for the purpose, it is essential there should be proper written evidence on file or of record showing a compliance with the requisite statutory preliminary steps to a legal meeting, and that such a meeting has been held, and the proceedings thereof; but such proceedings should be liberally construed, and all proper intendments made in favor of their regularity ,i</p> <p>jRecord: Parol evidence: Facts omiitedfrom record. Though parol evidence is not admissible to contradict a record, it may be introduced to show facts omitted to be stated of record; and the rights of creditors or third persons cannot be prejudiced by the neglect of the clerk to perform his duty in properly recording actual proceedings.</p> <p>Highway commissioners: Agent: Superintendent. The board of highway commissioners have authority to appoint one of their number agent of the township for the purpose of superintending the work done upon a township bridge, provided that the meeting at which such appointment is made is legally called and held, or that all the board are present and participate in the appointment; and a unanimous vote is not required for this purpose.</p> <p>Corporations: Contracts: Notification: Acceptance of work. There may in certain cases be a ratification by a corporation of an unauthorized contract; but the contract must be one which in the first instance could have been legally entered into by the corporate authorities; and in some cases the acceptance and appropriation of work done for the use and benefit of the corporation under an unauthorized contract may amount to a ratification, where it is done with full knowledge of all the facts.1 2</p> <p>Bridge: Use by citizens in traveling: Notification: Acceptance. The use of abridge by the people of the township, when traveling upon a public highway, cannot be constmied as an act of acceptance of tlie work done in building the bridge; the proper parties to ratify a contract are those only who could in the first instance have lawfully made the contract.3</p> <p>Highway commissioners: Contracts: Ratification: Meeting. The board of highway commissioners may ratify an unauthorized contract for doing work which is within 1 heir general powers to contract to have done, either while the work is in progress or after it is completed, by action at a meeting held pursuant to previous notice, or at a meeting of all the members without notice, and the township will be bound by their action; but the members of the board severally have no such power.</p> <p>Bridges: Repairs: Reconstruction: Highway commissioners: Contract: Agency: Authority: Ratification. The board of highway commissioners having under the statute authority without a vote of the people in certain cases to repair or reconstruct bridges, a person entering into a contract with one of its members, which upon its face appears to be within the authority of the board, has a rightto assume that the contract is, in fact as in appearance, a proper one; and if he goes on and in good faith furnishes material under such contract, he will be entitled to recover therefor in case the commissioner was authorized by the board to make such a contract, or if his action was afterwards ratified by the board.</p>

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

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

<p>Obtaining money by false pretenses: Informations: Reliance on representations. In an information for obtaining money by false pretenses, it is not necessary to allege in express words that the person defrauded relied on the representations made, but this is a necessary implication from the allegation that he was induced by the representations to part with his money.1</p> <p>Charge to thejw'y: Distinct false pretenses: Construction. The information charging several distinct and separate pretenses or representations, instructions to the jury that if they find that any of the pretenses charged were made and were false and fraudulent, and were part of the moving cause which induced complainant to part with his money, and that he would not have parted with it but for such false pretenses, they might find the defendant guilty, are to he construed as assuming that each distinct pretense set up was a valid ground of charge on which, a conviction might rest, if found false and fraudulent and operative in any degree to cause the complainant to part with his money.</p> <p>False pretenses: Location of lots: Fancies, The representation that lots, upon which money is sought to be borrowed by mortgage, are “nicely located,” cannot he made • the subject of criminal prosecution as a false pretense.</p> <p>False pretenses: Value: Mailer of opinion. Representations concerning the value of the lots to he mortgaged cannot he construed as anything beyond mere matter of opinion, and it is not to he supposed the expression would he understood in a sense more absolute.</p>

<p>Justice’s judgment: JDocIcet entry: Evidence: Clerical error: Formal defects. The docket entry of a justice’s judgment, which shows a joint suit, with hut one defendant served, and a judgment for a specified amount against the “ defendant,” sufficiently indicates what judgment the plaintiff was entitled to, in the light of the statute, providing that where only one of two joint debtors is served the judgment shall be in form against them both; and it is permissible to show that this defect was a mere clerical error. Where the record shows clearly the right, adjudicated it cannot he defeated by a merely formal defect.1</p> <p>'¿Evidence: Error will not be premmed. Where a relevant question has "been permitted against a general objection not stating any grounds, and the previous testimony of the witness is not given, it will not be assumed the ruling was error unless the testimony be such as would be" inadmissible from any body and under all circumstances; error will not be presumed.</p> <p>Garnishee proceedings: Disclosure: Building contract: Completion of building. A disclosure in garnishee proceedings showing that the garnishee had a contract with the principal defendants for a house, on which he owed them, or would owe them, a specified sum less any damages he might have against them for non-fulfillment, it is held that upon satisfactory proof of the completion of the contract by the contractors and plaintiffs as their assignees, substantially within the contract period, the plaintiffs were entitled to recover; the garnishee being bound to pay for the house if built properly, it did not concern him, when it was so built, whether it was done by the contractors or by plaintiffs as their assignees.</p>

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

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

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

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

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

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

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

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

<p>Replevin: Contract: Title. One who is under contract to take charge of a stone-yard for a specified time, as superintendent for the owners, to furnish all the moneys required to carry on the business, to pay for the labor and purchase the material, to keep an account of his expenses and sales and receipts, and to report the same when required so to do, and who is to receive in full for all the money, labor and time, so expended in said business, the net profits arising therefrom during the said period, acquires by virtue of his contract no title as against his employers in the articles manufactured or the implements and appurtenances of the yard; and if he violates his agreement and removes said property, against the wishes of his employers, from their yard, they may maintain replevin for the same.</p>

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

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

This was trover for certain timber which tbe plaintiffs, Ayres and others, bad purchased as standing timber of one Kingsley, and which defendants, Haskell and another, had purchased of one who had cut and sold it under an arrangement with Kingsley’s vendee of the land. Kingsley’s sale of the timber was with the privilege of removal within three years, hut this timber was cut by defendant’s vendor long after the expiration of the three years.

The purpose of this application is to require the respondents to audit and allow a bill presented to them by the relators for services performed by one of the city police oificers *in the pursuit and apprehension of a person charged with an offense against the laws of tbe state, committed within the city of East Saginaw.

<p>Charge to thejwnj: General requests: Specific points, Tlie court having properly submitted tbe questions of fact to tbe jury in bis general charge, to which no exception was taken, tbe remark, in response to general requests to charge that plaintiff must prove every material allegation in tbe declaration and that the burden of proof rested on him, etc., “that these requests were law, but that they had no application to the case thathe could perceive,” is held not to be error, there appearing to be no real conflict in the evidence. Such general requests cannot be used as a cover for some pretended omission which is not specifically pointed out.1</p> <p>Choses inaction: Assignment: Absolute transfer. The refusal to charge “that when a</p> <p>chose in action is assigned by parol, it must be shown, in order to enable the assignee to maintain an action upon it, that the original owner surrendered all control over it and made an absolute appropriation of it,” is not error. An assignment may be absolute or qualified, as the parties choose, so long as no one else is injured or defrauded.</p> <p>Requests to charge: Relevancy: Record. The rejection of a request to charge, as being correct, but having nothing to do with the case, will not be held to be error unless its relevancy is made to appear by the record.</p> <p>Further instructions requested by the juiy: Explanations: Presumptions. Forgery of the instrument sued upon being the only really mooted question of fact in the case, the response of the judge to a request from the jury for further instructions, t hat the question for them to consider was whether the signature to the instrument was genuine, and that if genuine, their verdict should be for the plaintiff, and if a forgery, 'for the defendant, will be presumed to have been a satisfactory explanation of the matter on which the jury sought guidance, where the record fails to disclose on what point they desired further instruction.</p>

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

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

<p>Equity jurisprudence: Assignment of land certificate as security: Advances: JEbreclosure, Defendant having assigned certain land certificates, in form absolutely, but in fact as security for debts lie was owing to complainants and for advances to be made, and having afterwards paid up the indebtedness and advances, but desiring further advances, it was arranged he should redeliver the assignments as security for such further advances as complainants should make him, and redelivery thereof being made, further advances were made by complainants on the faith of such security, and settlements were had from time to time and defendant’s due-bill taken, with interest at ten per per cent., for the amount found due:—</p> <p>JB.eld, That a bill in equity will lie on complainants’ behalf for an accounting as to the amount of such advances and for the foreclosure and sale of such securities for the payment of the same, and that the proofs sustain the ease made by the bill.</p>

<p>Evidence: Cross-examination. On cross-examination of a witness wlio lias given evidence making out aprima facie case for tlie plaintiff, it is competent to permit defendant to draw out any facts which would tend to destroy the case thus made out.</p> <p>Questions of fraud: Oi'oss-examination: Participant in the fraud. Great latitude of cross-examination should he allowed in cases involving questions of fraud, especially where one of the parties to the alleged fraudulent transaction is upon the stand.1</p>

This action was brought by defendant in error against Eber B. Ward in his lifetime, and was being tried before the referee at the time of Mr. Ward’s sudden death. The suit was revived against plaintiffs in error, who were appointed special administrators pending the contest over the will of the deceased. After the revivor, the trial proceeded before the referee.

Luther Beecher, having been compelled as a stockholder to pay a judgment obtained against him under the statute, for labor debts of the Detroit Novelty Works, a manufacturing corporation, brought this action against all the other stockholders, under Comp. JO,, § 2852, to recover the ratable amount due to him from them on account of such payment.

Case made from Kent Circuit. The case in the court below was an appeal from the decision of commissioners on claims disallowing the claim presented by plaintiff against the estate of her husband, John Reithmaier, which was contested by defendant as administrator. The cause was tried by the court without a jury, and a special finding made and filed, upon which judgment was rendered in favor of the claimant.

<p>Evidence: Question of fact: Submission to jw'y: Verdict, In an action for services and supplies, written evidence indicating that the services and supplies were for sub-contractors of defendants, is competent as conducing to snow that credit was given to such sub-contractors and not to defendants, but it is not conclusive. The question is one of fact, for the jury to determine upon the whole evidence; and where the matter has been fairly left to the jury and they have found against defendants, the verdict is conclusive.1</p> <p>Evidence: Employment. Evidence that laborers who had before been in the employ of defendant's sub-contractors, afterwards, under an arrangement for transferring to defendants the operations of such sub-contractors, proceeded, under the direction of one having authority from defendants, to perform labor on defendants’ account, certainly tends to prove an employment by defendants as to such later services.</p> <p>Assigmments ofehoses i/n action: Consideration: Right of action. Assignments of choses in action pass the right of action, though made by way of gift, equally as though founded upon a consideration; and the fact that the assignments were made for the purpose only of enabling the assignee to have several like claims adjusted in a single suit, does not impair the validity of the transfers, nor prejudice the debtor.</p>

<p>Petition for a bill of review: Technical irregularities: Foxessive amount: Remission. A petition for a bill of review, filed after a long delay, will be governed by equitable considerations, and will not be allowed for technical irregularities where it appears that the petitioner has not been really damnified; and where the only tenable ground of relief is, that the decree was excessive in amount, a remission of the excess will justify the court in refusing the petition.</p> <p>Petition for bill of review: Fh'rors open. A petition for leave to file a bill of review, it seems, is not governed by the same considerations as a bill of review, in reference to the opening of all errors whether specified or not.</p> <p>Service: Subpoena: Return: Presumptions: Discretion. The certificate of service of subpoena on a day prior to the date of its issue is held to be a manifest clerical error; a subpoena not being required to be served any particular time before the return day, but service on its return day being good, it is fairly presumable from such a return as is here in question, Hhafc it was served during its life and not at an impossible day; and tbis being subsequently shown to have been the fact, such a slip in the return would give but slight support to an appeal to the discretion of court.1</p> <p>Mortgages: Guaranty of collection: Foreclosure: Parties. A guaranty of collection of a debt secured by mortgage creates no obligation on the part of the guarantor to pay until after foreclosure decree and a failure to obtain payment out of the mortgaged premises and out of other property of the principal; and such guarantor ought not to be made a party defendant to the foreclosure suit.2</p> <p>Guarantors of collection: Fbreclosure: Personal decree. Where guarantors of collection have been made defendants to a foreclosure suit and have made no objection, they being the only ones who could raise the point, it may be a contingent decree against them would be permissible; but this could not operate to preclude them from a hearing before execution against them, and an absolute personal decree against them for the deficiency, in the first instance, is unwarranted.</p> <p>Foreclosures: Proceeding fo' execution for deficiency: Guarantors of collection. The proceeding for execution for the deficiency in foreclosure cases, under our statutes, is essentially new and supplementary, and not a mere continuation of the foreclosure; and any dealing between the creditor and principal debtor substantially changing their contract relations would release guarantors of collection, if it happened at any time before their liability is finally settled, and would be a defense to the proceeding for execution.</p> <p>Equity jurisprudence: Fbreclosures: Personal decree: Collateral obligations. Tinder the original equitable jurisdiction there was no power to make personal decree against even the mortgagor himself, but this is a statutory innovation, as is also the enforcement in the foreclosure suit of collateral obligations of third persons; and the juris- . diction by the statute over this latter class of persons is permissive only, and not obligatory, and will not be enforced to their prejudice.</p> <p>Guarantors of collection: Personal decree: Bill of review. Guarantors of collection of the mortgage debt, against whom an absolute personal decree for the deficiency has been granted in the first instance, are not in default in not asking a bill of review so long as tbe proper proceedings to fix them finally are yet uncommenced.</p> <p>Practice in appellate court: Discretion. A court of review is hound on appeal to exercise its own discretion upon the matters brought before it; and it would be a misuse of discretion to refuse to correct an evil where no one has or can lawfully act in reliance upon it.</p> <p>Discontinuance: Rescission: Reinstating cause. Parties as to whom the bill has been dismissed by complainant after decree, can only.be brought back by the usual process; and an order rescinding the discontinuance could not bring them in and hold them bound by tbe previous decree and proceedings.3</p>

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

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

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

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

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

<p>Mistake: Fraud: Proofs. In this case, which is a bill by a married woman to cancel a mortgage which she had joined with her husband in executing, and which covered a house and lot belonging to her and occupied as a homestead, and also to set aside proceedings which had been taken to foreclose the same by advertisement, on the ground of mistake and fraud in the execution of the mortgage, it is held that the proofs failed to make out either branch of the complainant’s case.</p> <p>Mortgages: Married women: Separate property: Joinder of husband. The joining of the husband in the execution of a mortgage given by the wife upon property to which she has the title, cannot detract from the validity of the instrument as against her, she having authority under the statute to mortgage her own property as though she were sole; and any irregularity or defects in the execution or acknowledgement on his part cannot impair the security.1</p> <p>Husband and wife: Principal and surety: Delay. The fact that tlie mortgage in question, was given to secure a debt of the husband upon which the wife was liable only as surety, and that the mortgagee voluntarily granted indulgence to the husband, would not operate to release the wife, in the absence of any showing that the mortgagee had in any way agreed or bound himself to give further time.</p>

<p>Assessments for sew\^ sewers, levied according to the superficial area of lots, witliout regard to actual or probable benefits, are unlawful; and though the legislature has authority to prescribe the rule for apportioning benefits in levying such assessments, the rule adopted must at least be one which it is legally pos- . sible may be just and equal as between the parties assessed.</p> <p>Assessments: Superficial area. A statute authorizing an assessment according to the superficial area upon such lots as the common council shall determine are increased in market value by the improvement, whether contiguous or not, whether directly benefited or not, or whether city lots or out lots, is held unconstitutional and void.</p> <p>Special assessments: Benefits: Burdens, The principle upon which alone special assessments can be sustained is, that those who enjoy the benefits shall equally bear the burden.1</p> <p>^•Taxation: Opportunity io be head'd. Parties whose property is to “be taken by summary tax proceedings are entitled as of right to he heard at some stage of the proceedings before the tax becomes an established charge against them or their property. 2</p> <p>Equity pleading and practice: Dili to enjoin a tax: Cloud upon title to lands. A hill to enjoin the collection of a tax which by statute is made a lien upon lands, is sustained as a proper one to remove a cloud upon the title to lands.3</p> <p>Parties: Objection: Amendment. The city marshal alone having been made defendant to such a hill to enjoin the collection of a city sewer tax, it was held the city was a necessary party; but this objection not having been seasonably made, it was obviated by * amendment at the hearing.</p>

<p>Error to Oakland Circuit.</p> <p>This was ejectment brought by plaintiff in error. The judgment below was for defendant.</p>

<p>Sales: Transfer of title: JZcecuiory agreement: Delivery. An executory agreement to sell agrowing crop of wheat for one hundred bushels of oats is held not to have constituted a completed sale and transfer of title of the wheat, so long as the oats remained undelivered and mingled with other oats of the purchaser of the wheat, under an arrangement that they should be stored by him for a time and be measured out and delivered in the future, or should be drawn to market and sold and the proceeds paid over to the vendor of the wheat.1</p>

<p>Attachment: Bond to release property: Defects in affidavit for attachment: Waiver. It is not open to parties when sued upon a bond given by them at the instance of a defendant in an attachment causo to release the goods seized upon the writ, to object that the affidavit for the writ was defective, where the defendant in attachment, though personally served, has failed to question the sufficiency of such affidavit in the attachment cause and has suffered judgment to pass against him, and where the defendants in the suit upon the bond have by stipulation therein expressly stated that the attachment was commenced in due form of law.</p> <p>Transfer of causes: Jurisdiction over the person: Stipulation: Absent defendants not brought in. The transfer from the Kent circuit court to the superior court of Grand Rapids, of a cause brought against the principal and two sureties on a bond* by stipulation between the attorneys for the plaintiff and for one of the sureties and the other surety in person, the prin cipal not having been served, and not appearing in the cause, is held sufficient to give the latter court jurisdiction of the parties thus brought before it. The actual parties before the court have the exclusive right to be heard in regard to steps concerning the place of trial, and this right cannot be prejudiced by the non-assent of absent defendants who have not in any way been brought into court.1</p> <p>Joint debtors: Statute construed: Joint and several obligations. The statute concerning joint debtors applies to all joint undertakings or liabilities, and covers an obligation which is joint and several.</p> <p>Attachment: Release of property seized: Bond: Alternative condition: Payment of judgment. Under our statute (Comp. L. 1871, § 6U10) a defendant in attachment who seeks a release of his property may at his option give bond, either for payment of the judgment which may be recovered against him, or for the production of the property to. satisfy such judgment; and where a bond has been given conditioned for the production of the property or in default thereof ibr payment of the judgment, the obligors, having failed after proper demand to produce the property, are liable on the other alternative to pay the amount of the judgment, and not simply the appraised value of the goods seized on the writ and released by the bond.2</p>

Appeal in Chancery from Kent Circuit. This is an appeal from an order adjudging defendant Innes guilty of contempt for disobedience of a decree requiring him to execute, acknowledge, and deliver to complainant a deed of the premises in suit.

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

<p>Fraudulent deed: Levy on growing wop. It is competent for a sheriff who has levied on a growing crop after the land had been conveyed by the execution debtor, and has afterwards taken possession of the harvested crop, to show, in defense to an action of „ replevin brought against him. by the grantee, that the conveyance was fraudulent and void as against the creditor in his execution, and he is not bound first to have the conveyance set aside in a direct proceeding for that purpose.1</p> <p>Debtor and weditor: Fi'auduleni conveyance: Growing wops. A debtor cannot, by a fraudulent sale of the land, deprive a creditor of the right to levy upon the growing crops.</p> <p>Cases distinguished. This case is distinguishable from Jones v. Bryant, 13 ST. H., 53, and Garbutt v. Smith, 40 Barb., 22.</p>

The instrument on which this action was based reads as follows, that portion printed in italics being in writing and the residue printed: “JET.

Appeal in Chancery from Benzie Circuit. This is a bill filed by a married woman to enjoin proceedings to a sale upon a levy of an execution against her husband upon lands belonging to her, -winch they jointly occupy as a home. A general demurrer was interposed to the bill and was sustained by the court below. Complainant appealed.

<p>Divorce: Habitual drunkard. One who has the habit of indulging in intoxicating liquors so finnly fixed that he becomes intoxicated as often as the temptation is presented by his being in the vicinity where liquors are sold, is an habitual drunkard within the meaning of the divorce law.</p>

<p>Villages: Saits: Name: Highway commissioners: Bridge over mill-race: Amendment. A suit on belialf of a village should ordinarily be brought in the corporate name of the village, but it is competent by statute to make exceptions. And’ under a statute mak- ■ ing the president and trustees ex officio commissioners of highways, with the like powers and duties as township commissioners, a suit on behalf of the village against mill-owners, for the expense of constructing a bridge on a street across their mill-race should be brought by them in their name of office as commissioners, and not in their name as a common council; but where suit has been brought in the latter name the misnomer may be cured by amendment.1</p> <p>Charter of Kalamazoo: Bridges over mill-races: Construction: General statutes. The pro-: vision of the charter of Kalamazoo, authorizing the president and trustees to ordain and establish by-laws, etc., for constructing and keeping in repair the public highways, bridges, etc., applies to the highways, bridges, etc., which are to be constructed, and kept in repair by the village itself through the exercise of the taxing power, and not to bridges over mill races, which by general statute it is made the duty of the mill proprietors to construct. Village charters are to be construed as not designed to encroach upon the general law any farther than the plain terms show an intent to do so. 2</p> <p>Highway bridges over milWaces: Mill-owners: Suit by highway commissioners. Under the the statute {Comp. L. 1871, $1809-10) requiring mill-owners to construct on the highway over their mill-races “ a good and sufficient bridge or bridges not less than fourteen feet in width” and empowering the commissioners of highways, in case of their refusal or neglect, to build at their expense such bridge or bridges, the construction by the mill-owners of a suitable bridge fourteen feet in width would be a complete performance of their legaL duty, and the commissioners are only authorized to do at the expense of the mill-owners what is requisite to discharge their unperformed duty: and cannot charge them with the expense of building a bridge thirty feet wide.</p> <p>Highway bridges over mill-races: Races previously dug: Retrospective effect: New remedy. The statute in question applies equally to races cut before it was enacted, and is not thereby given a retrospective operation; for it is the duty of mill-owners to bridge their races where highways cross them, independent of any statute, so that the statute ' imposes no now duty upon them, but only gives an efficient remedy for neglect of a duty before existing; it recognizes an existing duty, and provides how in the future its performance may be compelled.3</p> <p>Evidence: Highway: Race: Survey: Record. Upon the question of the existence and location of the highway at the time and prior to the construction of the race, an early territorial record of the survey of the road maybe admissible in evidence, not as record proof of the establishment of the road, but as a permanent record of the line where the road was, its establishment being shown by other evidence.</p> <p>*Immaterial matters. The road having remained without alteration at the point where the race crossed it, questions of its abandonment and reestablishment, and of Variations in its lines, at other points, would not preclude the right of the public to insist upon the public way at this point, or affect in any manner the duty of the mill-owner to keep the race bridged for public use.</p> <p>Highway bridges over mill-races: Race dug before higlmay existed. If at the time the race was dug there was no traveled road within the limits of the highway crossing where the bridge in question was built, the mill-owners cannot be held under the statute for the cost of building the same.</p>

This is an application to require respondent to allow a writ of scire facias to issue under the statute (Comp. L. 1871, § 6151) against a defendant residing in another county, addressed to the sheriff of such foreign county.

<p>Application for mandamus.</p>

<p>Action on contract: General issue: Execution of contract: Admission. In an action upon a contract, which is set out verbatim in the declaration, and alleged to have been jointly executed, the plea of the general issue, without any affidavit, admits the execution of the contract in manner and form as it is alleged.1</p> <p>Land contract: Option: Election: Taking possession and asserting ownership. Under a contract for the sale of the timber on a parcel of land, separately, at a specified price, and for the refusal of the land for a given, time at a given price, the talcing possession and the exerci.se and assertion of ownership, beyond what relates to the timber, is held to operate as an irrevocable election to retain the land.2</p> <p>Zand contracts: Clear and maa'ketable title: Mortgages paid but not discharged. The existence of mortgages which have been paid hut not discharged of record, will not excuse a vendee in a land contract from accepting a proper deed, on the ground that the title is not such a clear and marketable one as the law requires.</p> <p>Land contracts: Option: Allowance of time: Title: Inquiry. The query is suggested, whether the allowance of time in the contract, for election as to whether the vendee would purchase the land, should not he regarded as designed, as it is certainly adapted, to enable the vendee to inquire concerning such matters relating to the title as were reasonably open to inquiry.</p> <p>^Marketable title: Litigation between thi/rdparties: Assertions. A litigation pending between third parties, in which the lands in question are involved, but which does not attempt to attack the title of the vendor, affords no excuse to the vendee for declining the deed. Titles cannot he encumbered by assertions of third persons, and a litigation purely between, third persons is no more than any other assertion.</p> <p>Land contracts: Vendee in possession: Tender of deed: Reasonable time. Where the vendee retains general control of the land, and makes no attempt to rescind the contract, delay beyond a reasonable time in tendering a conveyance is of no consequence, since time ■under such circumstances does not become essential.</p> <p>(La/nd contracts: Breach by vendee: Measure of damages: Purchase price. In an action by a vendor for failure of his vendee to perform a land contract, the measure of damages, where the vendee has been put in possession and the vendor has tendered a proper deed, is the purchase price provided by the contract to he paid.3</p>

<p>Chattel moi'tgages: Permission to sell. A chattel mortgage of a stock of goods, which is otherwise valid, is not rendered void by a proviso that the mortgagor “shallbe allowed to continue the sale of goods from said store as though this instrument were not made.” This clause, fairly interpreted, simply authorizes sales in the ordinary course of business; and such mortgages have uniformly been held valid in this state.1</p> <p>Chattel mortgages. It cannot be reasonably urged that an instrument in the form of a chattel mortgage, containing the usual power of sale, and ’’’providing for the mortgagees’ taking possession whenever they should think themselves insecure, was not designed to confer any rights upon the mortgagees or to operate as a valid mortgage.</p>

The purpose of this application is to require respondent to set aside an order allowing an amendment to the declaration in a cause pending in said circuit, and to strike the amended declaration from the files. The original declaration sought to charge the railroad company as common carrier for the loss of goods shipped over its line and destroyed by fire while in its depot awaiting delivery to a subsequent ^carrier (see Mich.

This cause was tried by the court without a jury and the following special finding was filed, viz: “ From the evidence and admissions of the parties, I find the following facts: “That on the 6th day of November, 1868, the defendant executed and delivered to the plaintiff a mortgage upon real estate to secure the payment of the principal sum of three hundred dollars, with interest at the rate of ten per cent, per annum, payable annually, the principal payable on the 1st day…

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

<p>Specific performance: Forfeiture: Timber: Parol arrangement. Where specific performance of aland contract is resisted on the ground of forfeiture by the vendees’ talcing off timber in violation of the contract, and the fact is admitted, but is sought to be justified by a parol agreement that they might cut and remove the timber in consideration of hastening the time of payment, a very clear showing is required, where the contract is a very valuable one to the vendees and its value lies mainly in the timber.</p> <p>Land contracts: Parol agreement that vendees may remove timber: License: Revocation. A parol agreement between vendor and vendees in a land contract, that the latter might remove the timber in violation of the terms of the contract, is but a mere license, so long as it remains unperformed, which is revoked by the vendor’s sale of his contract to one ignorant of it.1</p> <p>Land contracts: Forfeiture: Tender of purchase price: Costs. Where after forfeiture of a land contract, and pending proceedings by the vendor to regain possession, the vendees without much delay tender payment of the purchase price and the cost of the proceedings already taken, the vendor should accept the same; but the tender should not be confined to such costs only as were taxable in the proceedings, but should be sufficient to make the vendor whole for his expenditures.</p> <p>Specific performance: Assignment by vendor: Parties: posts. Where the original vendor has assigned the contract subject to the vendees’ rights, and is made a party defendant to a bill for specific performance, and has answered disclaiming any interest, costs-should not be awarded against him.</p>

This was ejectment brought by plaintiff in error against ^defendant in error. The cause was tried by the court without a jury, and a special finding was made and filed. The judgment below was in favor of the defendant.

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

<p>Chattel mwtgages: Registry. A chattel mortgage which had been properly filed as to a portion of the property covered by it, would not be rendered inoperative as to such property by the fact that it was not properly filed as to other distinct chattels described in it and situated elsewhere. A conveyance or incumbrance may be bad as to a part of the property which is the subject of it, and good as to the residue.</p> <p>•Chattel mortgages: Registry: Partntp'sTwp. A partnership chattel mortgage, made in the firm name, signed by the resident partner alone (the other partner residing in another state) and covering only firm property, which was filed in the office of the clerk of the township where the resident partner resided and where the seat or abiding place of the firm was located, is held valid and operative under the statute {Comp. L. 1871, g 006) as to property described in it and situate in another township and county.1</p> <p>Chattel mortgages: Registry: Partnership: Residence. A partnership having a definite local abiding place may be said to reside there for the purposes of determining the proper place under the statute for filing a chattel mortgage given by the firm in the firm name, and which is strictly a partnership encumbrance.</p> <p>Attachment: Affidavit: Time. Where an affidavit for a writ of attachment was made the same day that the writ issued, and speaks of being annexed to the writ, it will be presumed that the writ did not pass from the clerk’s hands until the affidavit was made, and it is of no consequence whether or not the writ was filled out before tbe making of the affidavit. Whfere two acts are done at the same time, that will take effect first which ought in strictness to have been done first in order to give it effect.2</p> <p>Attachment: Service on one of two defendants: Premature return. Service having been made upon one of two joint debtors of a writ of attachment on which their joint property had been seized, and jurisdiction thereby obtained, it is not a valid ground of objection to tbe introduction in evidence of tbe attachment proceedings, judgment, execution and levy, that the writ of attachment was prematurely returned as to the other joint debtor, who was not served.</p> <p>Attachment: Joint defendants: Joint property seized: Service on one. Where in attachment against two joint debtors their joint property is seized and service is made upon one, it is not necessary, under the statute {Comp. L. 1871, $ 6U18-U), to proceed by publication against the other.</p> <p>Attachment proceedings: Joint defendants: Service on one: Misnomer. The record of a judgment in attachment against a firm, where partnership property was attached and one partner served, ought not to he rejected as evidence on the objection that the first name of the partner not served was different from that given to him in the writ.</p> <p>Evidence: Attachment proceedings: Record: Levy: Logs: Lumber. The record oi attachment proceedings upon which a defense in replevin is based cannot be excluded on tbe objection that the attachment of logs will nob justify the taking of lumber or the execution, there being no dispute that the lumber was made from the logs; and even if this were ‘^disputed, it would he the subject of extrinsic evidence and would not appear on tbe face of tbe record and would tberefore be no ground for excluding tbe record.</p> <p>Immaterial evidence: Errors that do not prejudice. The admission of immaterial evidence that could not have prejudiced the party complaining of it, is not ground for reversing a judgment.</p>

Appeal in Chancery from Kent Circuit. The complainant, the Grand Rapids, Newaygo & Lake *Shore Railroad Company, was organized in September, 1869, under the general railroad act, to build a road from Grand Rapids to Newaygo, and to some point beyond in Oceana or Mason county, and built its road in and near Grand Rapids in 1871 and 1872.

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

<p>Appeal in Chancery from Yan Burén Circuit.</p>

<p>Municipal corporations: Sewers: Flooding premises: Trespass. A city is held liable for an injury to plaintiff’s house resulting from, the cutting of a sewer by the city authorities in such a manner as to cause the collection of large quantities of water which otherwise would not have flowed there, and which were thereby thrown upon his premises. Such an invasion of another’s premises is a trespass as much as would be the sending of people there with picks and spades to cut a street through them.1</p> <p>Incidental injuries: Legislative action: Direct injury: Trespass. The distinction is stated • between incidental injuries resulting from imperfect legislative action and direct injury accomplished by a corporate act which is in the nature of a trespass.</p>

<p>Debtor and creditor: Collateral security: Ibrfeüwres. A creditor holding his debtor’s note, and the notes of third persons as collateral security, under an arrangement that if the debt were not paid at a specified time the collateral notes should become his absolutely, having sued the principal note, recovered judgment and collected the full amount thereof, and having, pending the suit, sold the collateral notes and failed to account in any way for the proceeds or to credit the amount upon the judgment, is held liable to the debtor for the amount received on the sale of such collaterals.1</p> <p>Dealings between borrowers and lenders. The law scrutinizes closely dealings between borrowers and lenders, and refuses to enforce them where they are unjust and unconscionable.</p>

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

<p>Title to office: Verdict: Judgment. In this case, which is a proceeding to determine the title to the office of supervisor, the only questions raised being questions of fact, which have all been found for the relator, judgment of ouster is granted, with costs.</p>

<p>Banks: CopaAiners: Estoppel: Bepresentalions: Circulars. In an action to charge defendants as copartners, with the indebtedness of a hanking institution, it is error to hold the defendants estopped from showing that in fact they were not partners, by reason of their having silently allowed the proprietor of the hank to represent them íd printed notices as directors; such representations could not reasonably have misled any one into believing defendants were partners, or into trusting the bank on that basis; the most any one could insist upon would he, that he had a right to regard the representations as true, and treating them as true, they do not suggest the existence •of a partnership. 1</p>

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

<p>Eitoi* to Kalamazoo Circuit.</p>

<p>Certiorari to Judge of Probate of Mecosta County.</p>

This was an antion brought by Irwin against Wright, upon an instrument of the following tenor, executed by Wright, viz.: “For value received I promise to pay to the Northern Central Michigan Railroad Company or hearer, the sum of fifteen hundred dollars, to be paid twenty per cent, a month, from the first day of July, 1871, towards the right of way and .grading of said railroad from Jonesville to the city of Lansing.” The points raised and the facts on which they are based'…

<p>Declaration: Pleading to the merits: Foi'mal defects: Waiver. A defendant who has neglected to demur, and has pleaded to the merits, cannot afterwards turn his adversary out of court od the trial, on account of formal defects in the declaration.1</p> <p>Guaranty of collection: Inability to collect of principal debtors: Condition precedent. In an action upon a guaranty of collection of the note of third persons, it is incumbent on the plaintiff to show, as an indispensable preliminary to his right of action, his inability, after reasonable diligence, to collect the note of the makers; and where ther^ are several such principal debtors, this condition must be made out as to each and all of them.</p> <p>Guaranty of collection*. Inability to collect of principal debtors: Diligence: Evidence. Proof of a prosecution seasonably commenced against principal debtors, and diligently and in good faith carried on against all to final judgment and execution, without avail, is sufficient, under all the authorities, to establish the right of the creditor to demand payment of a guarantor of collection.</p> <p>Declaration: Proofs. Where a declaration upon a guaranty of collection avers the guarantor’s liability to have been fixed by the prosecution of all the principal debtors to judgment and execution, without obtaining satisfaction, the plaintiff is bound to maintain this allegation by proofs of the facts alleged.2</p> <p>Evidence: Record: Proceedings of court: Transcript. The query is suggested, whether where the record of proceedings in one court have been introduced in evidence and made a part of proceedings in another court, the authentication of the record of the latter court, as including the transcript of the proceedings in the former, can have the effect to so engraft such introduced transcript upon the record, as to make it a component part thereof.</p> <p>Declaration: Guaranty of collection: Unsuccessful prosecution of pri/ncipal: Evidence. Where a declaration upon a guaranty of collection is framed on the basis of a diligent and unsuccessful prosecution of all the principal debtors to judgment and execution, the record of a prosecution against such principal debtors, which, as to two of them, shows no more than *the institution of a suit which after being put at issue was stayed until further order of the court on a motion based upon a showing that such defendants had been adjudicated bankrupts upon a creditor’s petition, and in which no further steps appear ever to have been taken, is insufficient to establish a right of recovery 3</p>

Appeal in Chancery from Branch Circuit. This appeal is from a decree fixing the amount to be paid as compensation for certain alleged breaches of the following bond: “Know all men by these presents, that I, Hiram A. Tucker, of Coldwater, of Branch county, Michigan, am held and firmly bound unto Augustus P. Tucker and Seraphina A, Tucker of the same place, in the sum of five thousand dollars, to be paid to the said Augustus P. Tucker and Seraphina A. Tucker, their executors,…

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

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

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

*This is an action upon a fire insurance policy issued by plaintiff in error to defendants in error on their stock of goods.

<p>TollBridge: Navigable stream: Assent of supervisors: Limited period: Tolls. The assent of the supervisors of the county being essential to the right to construct or maintain a toll-bridge over a navigable stream, and such board being also the competent authority to fix the rate of tolls, a corporation organized to build a toll-bridge over such a stream, which, has obtained, assent by resolution of the board of supervisors “to erect, rebuild, repair and keep up and use, for its sole use and profit, a toll-bridge,” etc., “ for the term of twenty years,” the tolls being fixed by the board at the same time, has no authority after the expiration of the twenty years to enforce the payment of tolls, notwithstanding the corporation was organized for the period of thirty years, for the purpose of building this bridge, in pursuance of a statute authorizing it.1</p> <p>Corporate franchises: Forfeiture: Collateral attach: Expiration of right to tahe tolls. The forfeiture of a corporate franchise cannot be collaterally taken advantage of in a private aetion; but one sued for bridge tolls by a corporation may defend on the ground that the period of assent by the supervisors to the exercise by the corporation of the franchise of taking tolls has expired; for this is not a question of corporate existence. The franchise to be a corporation may continue to exist though any particular franchise annexed to it may have been surrendered or forfeited,2</p> <p>Taking tolls: Corporate franchise: Expiration of right to take tolls. The franchise of taking tolls being distinct from the corporate franchise, and deriving its existence by grant, not directly from the state, but from the local board, the estate of the corporation in it ceases with the expiration of the period to which it was expressly limited by the grant, and the failure of the state to institute peoceedings to dissolve the corporation, can have no force to continue this franchise or to restore it to life.3</p> <p>Waiver. A waiver cannot renew an estate which has expired by limitation.4</p>

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

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

<p>^Contracts: Payments by note: Balance: Default. Under a contract to sell and deliver “afloat in Flat river in time for the main drive in the spring of 1875 ” all the merchantable pine logs that could be cut from the timber standing on a specified parcel of land at a given price per thousand, which provided for payment in cash to be made at stated periods, and for payment of the balance in bank notes, payable in equal payments in two, four and six months, the vendees are held not to be in default for failure to deliver their notes in payment of the balance provided to be paid by notes, before the logs for which such payment is demanded are put afloat, though they are cut and scaled upon the land. They were not called upon to give notes until a balance could be found beyond the cash advances, and this balance could not be calculated on any logs not set afloat,1</p>

This is an action of trover brought by plaintiffs in error to recover the value of twenty acres of growing wheat. They purchased the growing crop of one Alfred Hyland, who was a tenant of the defendant. The crop was growing upon the premises leased by Hyland of defendant. The*lease was a written one and covered a term of fivet years from April 1, 1869, at an annual rent of five hundred dollars, payable at the end of each year.

Appeal in Chancery from Mecosta Circuit. The premises involved in this controversy are a hotel and grounds, known as the Mason House property, at Big Rapids, Michigan.

This was a garnishee proceeding, in which it was sought to hold Danaher as garnishee of one John B. Lozo, by reason of his taking and holding a stock of goods by virtue of a chattel mortgage given to him by Lozo. The circumstances under which the mortgage was given, and the grounds upon which it was assailed, are sufficiently stated in the opinion.

Case made from Wayne Circuit. In this case an affidavit of merits was filed to prevent an inquest, and it was held insufficient and an inquest was taken.

*The plaintiffs in error are the heirs at law of Justin Wait, deceased, and the administrator of his estate; and defendant in error is administrator of the estate of Julia Wait, the wife of said Justin Wait. The facts are sufficiently stated in the opinion.

This was replevin, brought by Packer to recover a horse, which Ostrander, as deputy sheriff, bad levied upon and taken by virtue of a writ of attachment against Packer. The horse was claimed by Packer to be exempt' from execution, and it was shown that he was engaged in a business which required the use of a team.

<p>Res adjudícala: Same cause of action: Contract: Damages. Where a party has sued and recovered upon a contract for the purchase price of certain staves contracted to he sold and delivered hy him to the defendant, the failure on the trial to prove the delivery of a certain lot embraced within the contract, hy reason of the absence or drunkenness of a witness, and the withdrawal of that item in his claim, will not authorize him afterwards to bring another suit for the same; this item, was not a distinct cause of action, and the former judgment was a final determination of the damages he was entitled to recover under the contract.1</p> <p>Splitting up causes of action. The principle which prevents the splitting up of causes of action, and forbids double vexation for the same thing, is a rule of justice, and not to be classed among technicalities. It was intended to suppress serious grievances. 2</p>

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

<p>Default: Proof of service. Before default can be regularly taken against a party, there must be positive and sufficient evidence in court of due service, and no substantial defect in that respect can be cured by subsequent knowledge of the facts.1</p> <p>Default: Admission of service: Proof of signature. An endorsement upon the process, of a written acknowledgment of service purporting to be signed by the party, is not sufficient, standing alone, without proof of the authenticity of such endorsement and signature, to authorize the entry of default for want of appearance.</p> <p>*Garnishee precept: Service. Whether or not it is necessary under the statute that a garnishee precept should be served by some officer commissioned to serve process, or by some person deputed to make the particular service, it is at least better and safer to entrust service to such persons than to others.2</p> <p>Garnishee proceedings: Costs. In garnishee proceedings, where the garnishee makes no active opposition, and allows the case to go on by suffering default, it is not the design of the law to inflict any costs against him up to the judgment.</p>

Appeal in Chancery from Superior Court of Detroit. This is a hill to set aside a deed to the defendants from the complainant and her husband, which complainant charges was obtained by defendant Wool by fraud and deception, while acting as complainant’s attorney, employed to draw up and look after the proper execution of a deed of the premises to complainant from her husband.

<p>Wills: Probale: Title of beneficiwi'y: Relation. The probate of a will affirms the title of a beneficiary under it from, the time of the testator’s death; and it relates back so as to make valid whatever had been previously done which under the will after probate the beneficiary could lawfully have done.1</p> <p>Wills: Life estate: Limitation over: Power of disposal. The query is suggested, whether a will whereby the testator gives to his wife all his estate “ during her natural life, for her use,” but after her death gives to ^others “ what may be left” of his estate after her death, conveys to the wife a life estate only in the property, or whether it does not rather confer upon her full powers of final disposal, and confine the limitation over to such as she may see fit to leave undisposed of at her death.2</p> <p>Mortgages: Life estate: Right of disposal. A person holding a life estate in securities has authority to convert them into money when that is the proper proceeding in order to obtain the income and protect the property from loss 5 and even a sale of a particular security may be entirely admissible where the bulk of the estate is preserved intact; and all that can be required is, that the estate shall be so managed as to preserve the aggregate from diminution.</p> <p>Mortgages: Assignment: Life interest. The validity of an assignment of a mortgage is not impaired by a showing merely that the interest of the assignor was but a life estate, where it is not made to appear that the transfer operated to diminish the bulk of the estate at the death of the life tenant.</p> <p>Wills: Life estate: Limitation over: Personal representatives: Creditors: Assignment. Under a will giving the testator’s wife a life estate in all his property and providing for a limitation over to others after her death, it is no concern of the personal representatives, in the absence of creditors, what use the wife makes of the property in her lifetime; that is a matter between her and those entitled to take after her; and if the estate is wasted by her they have their proper remedy.3</p>

<p>Grading streets: Soil removed: Sale by the oily: Defense. In an action by a city to recover the agreed price for a quantity of dirt sold and delivered under an express contract made by its street commissioner with the defendant, it is not competent as a defense to show simply that the dirt was taken from a street in the city, and that the lot owners along the street had not consented to, or had any thing to do with the removal or sale of the same; the soil removed not being of any special or peculiar value, and the same having been taken, used and disposed of by the city, in the process of grading and paviug the street, without objection, it may fairly be x>resumed that the adjoining proprietors took no interest whatever in the disposition that was being made of it, and made no claim either for the soil or for its proceeds.</p> <p>Grading streets: Removal of soil: Sales by city: Adjoining proprietors. It may be questionable whether, even if the adjoining proprietors had forbid the sale, it would have been any defense to the action by the city to recover the contract price agreed to be paid to it on the sale and delivery of the dirt, where it has been taken indiscriminately along the line of the street, so that the several owners would have been unable to trace that portion of the soil taken from in front of their respective lots so as to maintain an action against the defendant either for the identical soil taken or its value.</p> <p>'Grading streets: Soil removed: Rights of city: Sales. If in grading one of its streets it becomes necessary to remove some of the soil, the city lias an undoubted right to use the same in grading that or any other of its streets; and in case it does not desire it for that purpose, and the owner of the property from in front of which, the soil is taken does not desire to make use of it, the city has a clear right to remove it, and may, in so doing, sell or dispose of it in any proper manner.</p>

<p>Arbitration: Award: Agddent: Mistake: * Bill to correct: Validity of award: Res adjudi~ cata. The parties having submitted to abitration their partnership difficulties, each depositing his note with the arbitrators, under an arrangement that the arbitrators were to endorse down the note of the one they found to be debtor to the amount of their award against him and deliver the same to the other party, and this having been done and suit brought on such note, and the debtor having thereupon filed a hill to have the award corrected hy giving him credit for an item which by accident or mistake was not brought to the attention of the arbitrators, and obtained a decree, the suit on the note being stayed in the meantime, it was held that upon the suit on the note being again moved, the debtor could not set up tbe defense that the award was not valid; a party who has got relief on one basis, will not be permitted to litigate the matter oyer again on another basis, on the suggestion that he has a defense which he did not see fit to rely on before.1</p>

<p>Assignment of mortgage• Power of attorney: Claim for breach of covenant An assignment of a mortgage which appoints the assignee attorney, with full authority in his assignor’s name or otherwise to have, use and take all lawful ways and means for the recovery of the money due thereon, transfers to the assignee all collateral rights of the assignor, including a claim against the latter’s assignor for breach of the covenant that lie had lawful authority to transfer.1</p> <p>Mwtgages: Assignment: Covenant of right and authority to sell: Breach: Proceedings to foreclose: Evidence. Where the holder of a mortgage, after having secretly released a considerable portion of the lands, assigns the mortgage, covenanting that he has “ good right and lawful authority to grant, bargain and sell ” the same, it is competent, in an action on this covenant, to introduce in evidence proceedings to foreclose the mortgage, which showed decree and sale of the unreleased lands leaving a deficiency, and an execution for such deficiency, returned unsatisfied, in order to prove that legal proceedings for the collection of the demand had been taken and had proved ineffectual.2</p> <p>Mortgages: Assignment: Covenant of authority to sell: Secret release in part. The plain meaning of the covenant, in an assignment of mortgage, that the assignor has good right and lawful authority to grant, bargain and sell the same, is, that bebas authority to convey it as a valid existing lien on the land according to its terms \ and this covenant is broken where the validity and force of the mortgage at the time had been destroyed or impaired by a previous release, secretly given, of much of the security.</p> <p>Contracts: Breach: Good faith: Defense. It is no defense against an action for a breach of a contract that the defendant acted in good faith in making the contract.3</p>

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

<p>Chancery appeals: Defense as to co-defendant who has not appealed. A defendant appealing alone cannot have a decree reversed upon errors relating to a defense which, concerned a co-defendant only, who has not seen fit to appeal.1</p> <p>Mortgage: Demands payable in Canada: Premium on gold: Amount. A mortgage given in Michigan in settlement of a debt due and payable in Canada is not rendered invalid by the fact that in fixing the amount thereof the current premiums on gold were allowed upon the amount of the Canadian debt, the current money of Canada being at the time on a gold basis.2</p> <p>Written instruments: Parol evidence. The parties having reduced their agreement to writing and made the debt payable in fixed sums in American currency, it was not competent to show in defense to a demand for payment according to the terms of the agreement, that there was a parol understanding that the debtor was to have the benefit of any future decline in gold; and, moreover, the evidence in this case did not establish such an understanding.3</p>

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

<p>Railroads: Walking on the track: Injury: Contributory negligence. A. person who when walking along the railroad track, at a place where there were five parallel tracks side by side, on which trains passed backward and forward every few minutes, and where he had no lawful right to be, stepped from one track to avoid a passing train, upon another track on which an engine was approaching from behind him, in plain sight, and proceeded on his way without looking about him and was run over and killed, is held to have been guilty of contributory negligence such as to preclude a.reeovery by his representatives for the injury.1</p>

Case made from Cass Circuit. This was an action to recover back a tax of one dollar and fifty cents, levied by the village on the national bank stock of the plaintiff, who was a resident of another township in Cass county. The tax was paid under protest to save plaintiff’s property from sale on a seizure by the village marshal by virtue of process to enforce the payment of such tax. Judgment passed for defendant, and the plaintiff brings the case up for review.

<p>Mortgages: Equitable assignment of the debt. An equitable assignee of a debt secured by mortgage is entitled to have the mortgage follow the debt.</p> <p>Deed as security: Tt'msfer of the debt. Where one who holds a deed of lands as security for the payment of a note, transfers the note, he retains no further interest in the lands beyond the naked trust, which is subservient to the debt; and such transfer being to a national bank, the latter, if it could lawfully take such a security, would become in legal effect mortgagee, and if not, then the deed would cease to be operativa or any purpose, and the grantee would be bound to reconvey when required.</p> <p>freed as security: Transfer of the debt: Mortgage received as collateral: Title: Foreclosure: Parties. Where one who had received a deed as security for the payment of a note» had transferred the note, and had subsequently received delivery of a note and mortgage running to the owners of the equity of redemption under such security deed, as collateral to the debt secured by such deed, he has not such an interest or title as authorizes his bringing a bill to foreclose the mortgage in his own name and on his own behalf and without making the holder of the original demand a party.</p> <p>Mnclosure: Interloper: Parly complainant. The complainant in this case is held to have presented himself by his bill as an interloper, who sues for what does not belong to him, without even impleading the real owner.</p> <p>Practice: Fights of third, parlies: Title. The original demand having been transferred to a national bank, the question, whether the bank could *lawfully take the collateral security, will not be determined in this case, to which the bank is not made a party.</p>

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

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

<p>Evidence: Matters equally within knowledge of deceased: Lost letters. Parol evidence from the party as to the contents of letters which passed between him and the decedent, and which have been lost or destroyed, is within the provision of the statute excluding evidence of a party in certain cases as to matters equally within the knowledge of a deceased party.1</p> <p>Statute construed: Matters equally within the knowledge of deceased. The statute as amended in 1875 (Laws of 1875, p. 184) applies to a contest over a claim against the estate of a deceased person, between the claimant and the heirs of the decedent.</p> <p>Evidence: Cross-examination: Motion to strike out. The fact that it first came out on cross-examination that evidence which had been given without objection on the direct examination was objectionable as being within the mischief of said statute, and that evidence open to the same objection was drawn out on the cross-examination, cannot preclude the party Hhus drawing it out on cross-examination from moving to strike it all out; evidence given on cross-examination is to be regarded as testimony on the part of the party calling the witness and not of the party cross-examining,2</p>

<p>Practice in probate court: Guardian ad litem: Appeal. Where upon a hearing on an administrator’s account, the probate judge had of his own motion appointed a guardian ad litem for minor heirs of an age to be competent to nominate their own guardian, it was held no appeal would lie, the action being merely collateral and interlocutory.1</p> <p>Guardian ad litem: Administration account: Appeal. Upon an appeal from the action of the probate court on the administration account, the circuit court would have authority, if deemed necessary, to appoint a new guardian ad Mem.</p>

<p>Perjury: Information: False swearing: Criminal examination. An information for perjury, which alleges that the offense was committed on the examination of a person named, at a court held by a justice of the peace named, at a place and on a day specified, the said person being charged before such court, on respondent’s complaint on behalf of the people, with the offense of forgery, and that such examination came on to be heard in due form of law and was then and there heard and tried, and that the respondent then and there appeared as a witness on behalf of the people, and was sworn touching the matter in controversy, etc., is held sufficient to identify the court and the occasion as constituting such a tribunal and hearing as would render false swearing perjury within the statute. — Comp. L., § 7918.</p> <p>Perjury: Information: Issues: Materiality. Under the modern rules of pleading, allegations of materiality of the false testimony to the issue on trial, in an information for perjury are sufficient, and the issues themselves need not to be set out at length.1</p> <p>*Perjury: Information: Materiality to the issue. An allegation in such an information “that it then and there, upon said examination, became a material question whether” certain matters of fact set forth were true,*with the averment that the respondent swore to them as being true, and that they were false, and the necessary averments which render false swearing perjury, is held a sufficient averment of materiality to the issue, and not to be ambiguous.</p> <p>Perjury: Information: Materiality. The fact that a portion of the matters of fact set forth as falsely sworn to appears not to have been material, will not vitiate the remainder, even if it could be assumed, where all the facts are not spread out, that that which appeared to be immaterial was so in fact.</p>

<p>Application for mandamus.</p>

This application seeks to have respondent set aside a judgment of non-suit entered in a cause pending in the Wayne circuit wherein relator was plaintiff and Joseph Yan Baalen and another were defendants. It appeared that a previous non-suit had been entered in the cause, and upon a motion to set the same aside it was ordered that it be set aside upon the payment of five dollars attorney fee as costs of the motion.

<p>Practice: Pule to plead: Defects: Default: Statute of amendments. Where suit was commenced by declaration, and the rule to plead as entered was by clerical mistake made a ten day rule, but the notice of the rule, endorsed on the declaration served, was, that the rule to plead was one of twenty days, it was held that a default entered more than twenty days after service and return, was good; the defect could have worked no prejudice to the defendants and is such an one as is cured by the statute of amendments.1</p>

<p>Assault and battery: Resistance: Self-protection. Where one who had leased a shop to another went into the shop to prevent the carrying off by other parties of some iron he had sold to his lessee, but the title to which he was to retain until it was paid for, and which had not then been done, and such lessee assaulted him. at once upon his entering, and he in resistance to this assault struck his assailant a blow, his liability in trespass would depend on whether the force employed by him in resisting the assault upon him was greater than was necessary to his own protection.1</p> <p>Assault: Protection of property: Repelling an assault. If the iron in the shop belonged to the defendant, he clearly had a right to take possession of it to prevent its being taken away unlawfully; and the arrangement between the parties in reference to the title to the iron had a material bearing upon the damages for which the defendant should be held liable for his assault, as tending in some degree to excuse, if not to justify him in his endeavor to prevent the iron being taken away.</p> <p>Assault: Ti'cspass: Protection of property: Officer: Writ. The fact that an officer was present with a writ of replevin for this very iron, could not make defendant a trespasser in entering the shop to look after it, nor render him liable to be put out by force, unless he should refuse to leave on request.</p> <p>Assault: Mrst assailant: Resistance: Excessive force: Burden of proof . One who makes the first assault, if not justified in the law in making it, has the burden of proving, in his action for an assault made upon him in resistance, that the force employed by the defendant in resisting and defending his person was excessive.</p>

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

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

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

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

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

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