Volume 36 — Michigan Reports

<p>Land contracts: Conveyance by vendor to third person: Rescission: Consideration paid. Where a party under contract to sell lands to one, conveys the same without his consent to another, the original vendee is clearly entitled to regard his contract as rescinded by his vendor, and is entitled to have restored what he had paid upon the contract, subject to such deductions as equity should require.</p> <p>Money had and received: Equitable action. The action for money had and received is an equitable action and must be subject to equitable principles.</p> <p>Question of fact: Conflict of evidence: Talcing question from jury. In an action by the vendee in a land contract against his vendor, to recover back the purchase money paid, the vendor having conveyed the premises to a third person, where there is a conflict of evidence as to whether this conveyance was by the consent of such vendee, it is error for the court to take the question away from the jury and to direct them to And for the defendant.</p>

<p>Declaration: Charitable society: Benefits: By-laws: Duplicity. In an action against a society for benefits claimed to be due from it under its articles of association and by-laws, a count which combines a cause of action for a monthly allowance based upon one set of regulations with a dis tinct cause of action upon another set of regulations for a round sum claimed to accrue to a retiring member, is held bad on demurrer for duplicity.</p> <p>Declaration: Charitable society: By-laws: Demand: Assumpsit. A count for a recovery from a charitable society, under the by-laws, of an allowance on account of disability caused by injury, which is not supported by any averment of a demand, or of any assumpsit by the company, and which fails to state any facts on which the law might infer a liability in assumpsit, is demurrable; and an allegation that the company became indebted to and promised to pay ifiaintiff a specified sum as a consequence of his withdrawal, as provided by the by-laws, is not a statement of a cause of action.</p> <p>Declaration: Condition precedent: Performance of condition. In a count seeking to recover withdrawal money, which proceeds upon the theory that it is necessary as a condition precedent that a certificate of plaintiff’s medical attendant be presented to the board of trustees and that they should have reasonable opportunity to act upon the case, it is essential that facts be set forth showing that opportunity was actually given the board to act upon the case, or that they refused or neglected to act.</p> <p>Declaration: By-laws of a society. A count which merely refers to certain supposed by-laws as entitling plaintiff to claim a specified sum in a given contingency, and in case of certain steps taken by him, without setting out the by-laws relied upon, or averring the necessary facts to justify the conclusion, is bad on demurrer.</p> <p>Corporations: By-laws: Judicial cognizance: Averment of liability. The court cannot take judicial notice of the by-laws of a corporation, or assume that the company agreed, through a by-law, or otherwise, that upon plaintiff’s disablement and withdrawal he should receive a specified sum of money, but the existence of such by-law or agreement must be averred, together with such facts as are essential to show that the defendant became liable under and by virtue thereof.</p>

<p>Declaration: Special count: Assumpsit: Common counts: Misjoinder. A count the gist of which is that the parties agreed to make a joint purchase of certain land, each to pay one-half the price, and that defendant made the purchase for fifteen hundred dollars but represented to plaintiff that the price paid was two thousand dollars and thereby induced him to pay one thousand dollars instead of seven hundred and fifty dollars as his share, and which seeks to recover back the amount thus procured from the plaintiff in excess of his share of the actual purchase price, with interest thereon, embodies the substance of a good count in assumpsit, and may properly be joined with the common counts.</p> <p>Judgment not supported by evidence: Record: Weight of evidence: Error will not be presumed. An objection that the judgment is not supported by the evidence cannot prevail where the record does not show that all the evidence is reported and where the evidence reported has some tendency to support the finding. The weight of the evidence will not be considered, nor will error be presumed.</p>

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

<p>Dower: Lands conveyed by husband: Provisions for widow in will: Election. A married woman is not; barred of her dower in lands whereof her husband was seized of an estate of inheritance during the marriage, and which he conveyed in his lifetime by deed in which she did not join, by reason of her having accepted the benefit of provisions made for her in the will of her husband; the statute {Comp. L. 1871, § 4286) requiring the widow to make her election between the provisions made for her in the will of her husband and her dower interest “in the lands of her husband,” has reference only to such lands as the husband is seized of at his death.</p>

<p>Rulings on evidence: Jh'inted record: Objections abandoned. Objections to rulings on evidence, relating to a deposition which is not printed in the bill of exceptions, and others which are not noticed in the brief of plaintiffs in error, are not considered.</p> <p>Question of fact: Submission to'the jury: Lack of evidence: Error will not be presumed. "Where one of three partners is defending against a draft, drawn in the firm name by one of his partners to be used to pay the individual debt of the third partner, the submission to the jury of the question whether he did not authorize the giving of the draft, or ratify it afterwards, will not be held to be error where it appears that he was himself questioned as a witness on this subject and answered fully, but none of his evidence is given in the record. Error will not be presumed.</p> <p>Charge to the jury: Special requests. The refusal of special requests to charge is not error where the charge as given is full, clear and explicit ■on the points involved, and as favorable to the party complaining of it as the case would warrant.</p>

<p>Appeal in Chancery from St. Clair Circuit.</p> <p>This is a bill for divorce on the ground of cruelty.</p>

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

Appeal iu Chancery from Wayne Circuit. 1. A conveyance of real estate by deed from a husband to bis wife, though void at law, may he sustained and enforced in equity: Shepard v. Shepard, 7 Johns. Ch., 57; Hunt v. Johnson, 44 N. Y., 27; Sims v. Bicketts, 85 Ind., 181, 192; Dunning ' v. Williams, 26 Conn., 226; Burdeno v. Amperse, 14 Mieh., 96. 2. The record of this deed was notice to defendants: Laws 1883, p. 280; Ferry on Trusts, 196, § 223. 3.

<p>Partnership: New firm: Assuming debt of original firm: Promise to third person. Whei’e the creditor of a firm, holding firm notes, sues a new firm, composed of two members of the original firm and. a third person to whom the third member thereof has sold out his interest under an arrangement that the purchaser should assume his share of the partnership liabilities, basing her right of action on the assumption by tlio new firm of her debt against the old, and a promise to her to pay it, it is error to treat the case as one coming within the principle of cases where a plaintiff counts on a promise made to a third person.</p> <p>Partnership: Dealing with creditors: Notice: Husband and wife. Whatever is done by one member of a partnership in the course of the business, is presumed to be known to the others; and this presumption applies just as strongly to the acts of a partner who is the husband of a creditor of the firm, in his dealings with his wife as such creditor, as to his dealings with any other creditor.</p> <p>Partnership: New member: Assuming debts: Creditors: Accepting new firm as debtor. The new member having covenanted, as between himself and the retiring partner, to pay the latter’s share of the partnership liabilities, and the new firm having made payments on the pla-intilT’s claim, and the retiring x>artner having assigned to xilaintiff all claim he might have against such new member on the agreement between them, and the plaintiff having thoreupon brought this suit against the new firm, these facts, appearing in evidence, would be sufficient to fairly warrant a-jury in finding that plaintiff had accepted the new firm as her debtor in place of the old, and had consented to the substitution which the several partners among themselves had agreed upon.</p>

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

<p>Sureties: Future mercantile engagements: Time: Withdrawal: Discharge. Sureties in a bond given to secure performance by their principal of future mercantile engagements, and in which no period of limitation of liability is fixed, who have notified the obligees that they will no longer be bound for future transactions, are held discharged from liability for transactions thereafter entered upon, where no change in circumstances by the obligees has occurred on the faith of a longer continuance of the suretyship, and they are not prejudiced by such withdrawal.</p>

<p>JPromise to pay Jor goods furnished to another: Original undertaking: Statute of frauds. Defendant having gone to plaintiff and orally stated to him that for such goods as he should thereafter furnish to a third person named he would pay him, it is held that to take the promise out of the statute of frauds and make the defendant legally liable it is essential that plaintiff should thereupon have absolutely discharged such third person from liability, and looked only to defendant for payment; under no circumstances could he hold each liable severally, at his option.</p>

<p>Taxation: Supervisor's certificate: Review: Date: Time: Presumptions. Under a statute allowing three days for review of the assessment roll, where the sessions are not required, to last later in the day than five o’clock in the afternoon, the fact that the supervisor’s certificate to the roll is dated on the last review day, does not necessarily show that it was premature, for it would be competent for him to attach his certificate on that day and after the hour specified; and all reasonable pre. sumptions must be indulged in favor of official regularity.</p> <p>Taxation: Equalization of valuation: Slate tax. The amount of state and county taxes levied in the several townships depending on the equalization of valuation required by the statute to be made by the board of supervisors, it is as important, as between the several townships, that this action should be taken, as is a separate valuation of estates, as between individuals; and failure to comply with this requirement invalidates the tax.</p> <p>Records: Informal action not recorded. The statute requiring the action taken by the supervisors in this regard to be entered upon the records, informal action which is not recorded will not answer the requirement; conjecture is inadmissible where the statute requires a record.</p> <p>Taxation: Slate tax: Amount: Apportionment: Basis of estimate. An objection, that the tax on the face of the roll appears to be excessive, is not considered, in the absence of competent evidence what state tax was apportioned to the township, there being no basis for an estimate.</p>

This is replevin brought by Scriven for some wheat which was growing on premises before owned and then occupied by Moote, when Scriven purchased the premises on a chancery foreclosure sale, through which the latter claims to have derived title to the crop.

This was trover, brought by defendant in error in justice’s court, and taken by certiorari to the circuit court. The judgment in justice’s court was for the plaintiff, which was affirmed in the circuit, and the defendant brings error. The point raised is sufficiently stated in the opinion. were stopped by the court.

<p>Application for mandamus.</p>

<p>Mortgages: Description of premises: Identification: Evidence. Omitting to name tbe state, county, and township, in the description of premises in a mortgage, will not invalidate the instrument, where other adequate elements of identification exist; and it is not essential that the property should he so described as to identify it without the aid of extrinsic proofs, but it is always competent to connect the written description with the material subject matter by proof of the surrounding circumstances.</p> <p>Description of premises: Identification: Incorrect description. Where there are descriptive signs satisfactorily ascertained which designate the thing meant to be granted, the addition of circumstances or accompaniments which are untrue will not defeat the grant, but they will be rejected.</p> <p>Mortgages: Incorrect description: Foreclosure till: Correct description. Where a mortgage is inaccurate in its description of premises, and has some elements that have to he rejected as surplusage, but the description. is nevertheless sufficient, in the light of the extrinsic facts, to identify the property intended, it is proper in a bin to foreclose the mortgage to describe the property actually mortgaged by a description which, is accurate; and the variance in terms from the description in the mortgage is unimportant.</p> <p>Amendments at the hearing: Foreclosure bill: Subsequent mortgages. The right to grant amendments at the hearing in the court of first resort is ^ much broader than in an appellate court, and is more a question of terms than of power, where the amendment is germane to the controversy and calculated to help to a better or more complete result; and where the complainant in a foreclosure bill held subsequent mortgages not referred to in his bill, and the answer of a defendant brought in as a subsequent incumbrancer referred to such intervening mortgages, and «based asserted equities upon their existence, it is competent to permit complainant to so amend his bill at the hearing as to make it aver the facts as to these mortgages.</p> <p>Equity pleading and practice: Application to talce further proofs: Amendments. Upon an application for further time to take additional testimony upon the subject matter of amendments to the bill and answer made with leave at the hearing, the showing should point out what facts were expected to be proved, so that the court could determine upon their relevancy and importance. And where a party has failed in his showing for time to take proofs out of court, permission to him to take further proof in open court at the hearing, being a provision to that extent in his favor, will authorize no complaint on his part.</p> <p>Mortgages: Second and third mortgagees: Intermediate grant: Subject to first mortgage. The statement in a deed from an intermediate holder of a portion of the premises covered by a mortgage, that the grant is subject to such mortgage, in the absence of any requirement that the grantee assume and pay the same, will not make the mortgage a specific charge upon the portion or interest granted by such deed, so as to influence the equities as between second and third mortgagees upon other portions of the mortgaged premises.</p> <p>Mortgages: Foreclosures: Order of sale: Second and third mortgages. It is a maxim of equity, that where one has a lien on two funds, and another a later lien on one of them, the former is bound to exhaust the singly charged fund before resorting to that which is doubly charged; but this maxim will not aid a third mortgagee of a portion of the premises covered by the first mortgage to drive the first mortgagee to sell first a parcel on which he also holds a second incumbrance and which is not included in the third.</p> <p>Mortgages: Foreclosure: Decree: Order of sale: Subsequent mortgages. Where a portion of the mortgaged premises is covered by a second mortgage held by the complainant, and another x>ortion by a third mortgage held by a defendant, the latter cannof complain that on a bill to foreclose the first mortgage the decree provides for the sale first of the parcel covered by the second mortgage, but requires the sale of that parcel to.be subject to the payment of the second mortgage.</p> <p>Order of sale: Third mortgagee: Second mortgage: Amount. A third incumbrancer who concedes the existence of a second incumbrance is not entitled as matter of right, upon the question of the order of sale upon foreclosure of the first mortgage, as between the parcel covered by his incumbrance and that covered by the second incumbrance, to introduce proofs to show that the amount of the second incumbrance is less than it is represented to be.</p> <p>Foreclosures: lieport of amount due: Decree: Excess: Appeal: t Exceptions. Where the amount due upon a mortgage foreclosure has been found and reported by a commissioner to whom the case was referred for that purpose, and the court in decreeing the amount has acted on such report, a defendant who has taken no exception and made no objection to the report, cannot on appeal assail the decree as being excessive in the matter of the allowance of interest.</p>

<p>Certiorari to Circuit Court Commissioner of Cass County.</p>

The proof of service was amendable after judgment by showing the necessary facts, even without notice: Crawford v. Howard, 30 Me., 423; State v. Clark, 18 Mo., 432; Blaisdell v. Steamboat, 19 Mo., 157; Hitcher v. Beinsky, 42 Mo., 427; ' Webster v. Blount, 39 Id., 500; Whittier v. Vaughn, 27 Me., 301; Foster v. Woodfm, 65 N. C., 29; Mayo v. Whitston, 2 Jones (N. C.~), 231; Jackson v. O. & M. B. B. Co., 15 Ind., 192; Jones v. Lewis, 8 Ind., 7O'; Montgomery v. Brown, 7 111.,…

The lease, although containing several provisions of a very unusual character, was intended to and does convey the undivided one-half of the land itself, and not a mere mining right.

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

If the written contract in question is one voidable by the infant party before his coming of age ( Tyler on Infancy, 67-9; Gaffney v. Say den, 110 Mass., 137; 33 Conn., 201), which was the view the court below took of it, then the plaintiff was entitled to recover by showing his non-age and payment to and receipt by defendant of the four hundred dollars on the contract.

If the defendant received the plaintiff’s money for the insurance and kept it, as he offered to prove, it was a ratification of the contract. The company could not repudiate the contract while retaining its consideration. At any rate the evidence was admissible to go to the jury, as one of a series of facts which (with others the plaintiff had a right to prove) would tend to show a ratification of the insurance contract.

<p>School district order: Used as money: Implied promise: Waiving tort and bringing assumpsit. Where one who has wrongfully procured a school district order, has afterwards used it as money, the law raises an implied promise to pay the amount, and the tort may be waived and assumpsit brought.</p> <p>Agency: Admissions: Evidence. Admissions of an agent, made after the fact, and entirely unconnected with any act of agency, are not evidence of the fact.</p> <p>Agency: Evidence: Clerk: Payment: Authority: Admissions. Proof that a person is clerk for another, does not establish his right to receive for his employer payment of demands not shown to have any connection with the business; and evidence simply that payment was made to such clerk of such demands, is not a sufficient showing of agency to receive the same, to authorize evidence of admissions by such clerk of the payment thereof to him.</p> <p>Interest: Trifling sum. The objection that the judgment embraced more interest than was allowable, is not considered, the difference being so trifling as to be insignificant.</p>

This was an action brought by defendants in error upon an acceptance by plaintiff in error of a draft drawn on him by them. The defense was that the consideration was the unlawful sale of liquors; and a set-off was pleaded of moneys paid by defendant to plaintiffs on previous unlawful sales of liquors.

<p>Plea in abatement; Replevin; XT. & marshal: Execution: Demurrer. A plea in abatement in a replevin suit, that the defendant took the goods as-deputy United States marshal on an execution issued out of the United States circuit court against a third person named, which fails to aver that the execution was issued on any judgment, or that any judgment had been obtained against either the plaintiff in replevin or the defendant in the execution, or that the property had been levied upon as belonging to the defendant in execution, is held bad on demurrer.</p> <p>Execution: Property of stranger: XT. B. courts: Jurisdiction: Judgment. The seizure on execution from a federal court, of property of a stranger to the writ, will not operate to bring the property within the exclusive jurisdiction and control of the United States court, at least not in the-absence of any judgment to support it.</p> <p>Executions : Taking property of third person: Ti'espass: Judgment: Eorum. The taking by virtue of ¿m execution of property not belonging to the-execution debtor, is tortious and a trespass, though the writ be a valid one; and a seizure upon a writ issued without any judgment or order of the court to support it, could have no force in fixing the forum for determining the right of property.</p> <p>Plea in abatement: Jurisdiction. A plea in abatement to the jurisdiction must always show another forum where the rights have already become subject to judicial authority. It must also be certain according to the? most rigid rules of precision.</p>

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

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

argnetl that the evidence relating to the statements of the brothers and sisters of Ira Smith as to whether they had heard from him, was pure hearsay, and that the inquiries should have been made at his last place of residence in California; that the plaintiffs to recover were bound to prove not only possession by their co-tenants, but actual ouster or its equivalent; that a mere denial of plaintiff’s right is not enough, but it must be such as to amount to a disseizin of…

cited: Constitution, Art. XML, § 12, and referred to the several sections of the charter of Bay City hearing upon the question, and argued that the moneys in question are fines: See 2 Born. Die., 526; Webster’s Die.; that the offenses for which they are imposed are violations of penal laws and are many of them crimes under the state laws: Comp.

<p>Vendor's lien:' Primary school lands: New certificates: Fraud. A bill to establish and enforce an equitable lien for a portion of the purchase price of certain primary school lands, brought by an intermediate owner of said lands against his vendee, is sustained upon proofs showing that after the original purchase and an assignment of a portion by the original purchaser through mesne conveyances to the complainant, and a sale by complainant of his portion to defendant, with delivery of possession, the defendant, through collusion with the original purchaser, procured new certificates from the state land office to himself and such original purchaser for their respective interest; and that defendant afterwards, upon a settlement witli complainant,, assigned to him all defendant’s interest in these lands as security for payment of the amount due him, though this assignment is repudiated by defendant as having been executed on Sunday and under threats of criminal prosecution.</p>

<p>School districts: Disbursement of school moneys: Assessor: Treasurer: District officers. The disbursement of all school moneys is required by the statute (Comp. D. 1871, §§ 3623, 3612, 3609) to be made by orders drawn on the assessor by the director and countersigned by the moderator; and all moneys belonging to the district in the town treasurer’s hands are required to be paid to the assessor on warrants drawn by the direct- or and countersigned by the moderator. The assessor is made treasurer of the district, and required to hold all district moneys until properly drawn out by warrant. It is made the express duty of the director to draw and sign warrants upon the township treasurer, payable to the assessor, for all moneys raised for district purposes, or apportioned to the district by the township clerk, and present them to the moderator to be signed; and it is made the duty of the moderator to countersign such warrants.</p> <p>Town treasurers: District moneys: Disbursement: Ti'ansfer to assessor: Moderator. District moneys in the hands of the town treasurer are not subject to be applied to any district purpose except through the hands of the assessor. And the duty of suing to thus transfer them into the custody of the assessor if qualified, is laid on the director; and the duty of procuring this transfer within some reasonable time is not discretionary, but absolute. The moderator is bound under ordinary circumstances to countersign all orders of the director for that purpose; and if he refuses in a proper case to do so, mandamus will lie to compel him.</p> <p>School moneys: Warrant: Moderator: Mandamus: Delator. The statute making it the duty of the director to present the warrant to the moderator for signature, he may properly be a relator to obtain it by compulsion of law when refused. He is the proper custodian of the completed warrant, for the purpose of delivery to the assessor.</p> <p>Mandamus: Delator: Assessor. The query is suggested, whether the assessor would not also be a competent relator.</p> <p>Town treasurers: School moneys: Payments: Warrants. The town treasurer has no authority to make payments of district moneys, even to the assessor, except upon the warrant prescribed by stafcuté; and no payment not authorized by warrant is a valid official payment, such as to preclude the district from holding him responsible for moneys lawfully in his hands. Payments made otherwise than in the prescribed mode are made in his own wrong, and cannot diminish the fund for which he is responsible.</p> <p>Double funclio7is: Town treasurer: School moderator: Duty. Bespondent occupying the double position of moderator and town treasurer, is not thereby authorized to set xip his previous illegal disbursements of the district moneys as treasurer as an excuse for not doing his duty as moderator; his double functions will not relieve him in one capacity from doing his duty in another.</p>

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

<p>Rape: Complaints of prosecutrix. On a trial for rape, the admission in evidence of the statement of the sister of the prosecutrix, that the latter made complaint to her the next morning that the prisoner on trial and another person named forced her in her chamber the evening before, is - held not error.</p> <p>Rape: Force: Resistance: Consent. Where on a trial for rape the act of intercourse is admitted, and the vital question is, whether it was by force and against the will of the prosecutrix, the jury must be satisfied beyond a reasonable doubt that she did not yield her consent during any part of the act; and considering the place, time, occasion and surrounding circumstances disclosed by this case, it was important the jury should scrutinize the facts bearing on this point very closely.</p> <p>.Rape: Charge to the jury: yielding: Assent: Resistance. A charge to the jury in a rape case, that if they should find respondent used force, and complainant resisted so far as she was able to under the circumstances, they should find him guilty, even though they found she at last yielded, is held erroneous and misleading; the term “circumstances,” as here used, may have been understood as including weakness of the will; and the term “yielded,” as meaning an assent to the consummation or completion of the act; and if there was a yielding in that sense, there was no case to support a verdict of guilty.</p> <p>f Charge to the jury: Hypothesis not supported by evidence. The evidence on the part of the people being that the prosecutrix never yielded, and that on the part of the accused that she made no resistance, but assented from the beginning, there was no basis for a charge on the hypothesis of her having first made resistance but afterwards yielded.</p>

This action was brought by defendant in error to recover of plaintiff in error, her uncle, the value of her services in doing house work in his family under a verbal arrangement whereby he requested her to do the work and promised her he would pay her for it. No time was fixed and no price agreed upon. The services continued during a period of about seven years, termiaiating September 14, 1869. The suit was brought July 8, 1875.

<p>Equity jurisprudence: Suit to recover moneys wrongfully appropriated: Corporations: Officers. A bill by a corporation against its former officers to recover moneys they are alleged to have wrongfully and fraudulently voted to themselves for services performed as such officers, and a further sum they are alleged to have wrongfully made by the use of the company’s moneys,1 cannot be said to save a multiplicity of suits; it'’might, if sustained, enable complainant to unite in one suit several distinct causes of action against different parties, but uniting them would be as likely to create confusion as to save difficulty. And if the defendants combined in a fraud, they can be sued jointly at law as well as in equity.</p> <p>Corporations: Officers: Accounting: Appropriation of corporate funds: Remedy at law. Though officers of a corporation undoubtedly act in a fiduciary capacity, and may be called to account in equity as trustees, yet when they have ceased to be officers, and the only complaint made against them is of an appropriation of the corporate funds to their own use, and no discovery is sought, the reasons for seeking the aid of equity which commonly exist in cases of breach of trust, are wholly wanting; the courts of law are perfectly adequate to give effectual relief, and they are the most suitable tribunals for the purpose.</p> <p>Accounting. A suit to recover moneys [alleged to have been wrongfully taken, cannot be strictly called a suit for an accounting, any more than can any action for money had and received.</p> <p>Equity jurisprudence: Remedy at law: Questions for jury. The remedy at v law being ample, and the, questions presented eminently proper for a jury to pass upon, no good reason is perceived for the retention of jurisdiction by the court of equity.</p> <p>Demurrer: Amount: Remedy at law. While the failure to show an amount in controversy sufficient to give the court jurisdiction might not render the bill demurrable, yet it might be sufficient reason for the court declining to entertain the case when the remedy at law is entirely adequate.</p>

<p>Appeal in Chancery from Kent Circuit.</p> <p>were stopped by the court.</p>

This suit was brought in justice’s court by defendant in error, as administrator of the estate of William B. Beeson, deceased. The defense having been excluded by the justice, judgment passed for the plaintiff, and defendants removed the cause by certiorari to the circuit, where the judgment of the justice was affirmed. Defendants thereupon brought error.

argued that the tax deeds for 1869 were void, for the reason that a town tax of one thousand dollars was raised, when only the sum. of five hundred dollars was.- authorized to he spread upon the roll foi; the year 1869, as shown hy the records of the township: Case v. Lean, 16 Mich., 12; Lacey v. Lavis, 4 Mich., 140; and that the tax deeds for 1870 and 1871 were void, because the returns of the town treasurers for those years were not signed or sworn to, •as required by the…

<p>Executions: Receiptors: Joint liability: Nonjoinder: Plea in abatement. In an action against one of three receiptors upon a receipt given to an officer for goods he had seized upon executions, and conditioned for a delivery of the goods to the officer on demand or in default thereof to , pay the executions, an objection that the receipt was improperly admitted under the declaration as evidence of a contract with defendant, is held not well taken, where the declaration did not disclose a joint liability and the defendant failed to plead the non-joinder in abatement.</p> <p>Receiptors': Offer to turn out the property: Executions: Return day: Sales. An offer to turn out the property after the return day of the executions, and the refusal of the officer then to accept the same, is no defense to an action on the receipt; as the officer under the statute (Comp. L. 1871, §§ 6424-5) could not sell the property after the return day of the executions, he very properly refused to receive it then.</p> <p>Receiptors: Demand: Officer: Authorized person. A demand made by any other person properly authorized by the officer to make it, would have the same force as a demand by the officer in person, to fix the liability of the receiptor in case of his failure to comply with it.</p> <p>Receiptor: Promise to pay executions: Statute of frauds: Evidence: Charge to the jury. The reply of the receiptor to a demand for the return of the goods for which he receipted, that he would pay up the executions, was admissible in evidence to. show under which clause of the receipt he chose to be bound; and where no recovery was sought or claim, based upon such oral promise alone, it was not error that the^ourt declined to instruct the jury that such oral promise was void under the statute of frauds.</p>

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

<p>Appeal iii Chancery from Eaton Circuit.</p>

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

<p>Case made from Superior Court of Grand Eapids.</p>

This is ejectment by the heirs of John Heffernin for the recovery of the “south equal undivided half” of certain land of which he died seized. The defendants claimed title under a guardian’s sale. The judgment below was for defendants, and plaintiffs brought error. as to the insufficiency of the petition for license to sell, cited: Comp.

<p>Township drain commissioner: Appeals: Statute construed. Under the statute (Comp. L. 1871, § 1798) providing for an appeal to a justice of the peace from the action of the township drain commissioner, it is not every act or omission of the commissioner from which an appeal can he taken.</p> <p>Certiorari: Township drain commissioner: Appeal: Jurisdiction. On certiorari to review proceedings on such appeal, the record not identifying any act of the commissioner as appealable, except it be action of which the finding of the jury is by the statute (& L. 1875, p. 270, § 1782) made prima facie evidence, and the appeal having been taken more than a month after the action of the jury, the time fixed by the statute within which an appeal may be taken being ten days only, it was held the appeal was without jurisdiction.</p> <p>Township drain commissioner: Jury: Appeal: Time. The action of the commissioner upon the application to establish a drain being required under the statute to be taken before he issues a venire, an appeal complaining of the action of the commissioner in locating and establishing the drain, and which is not taken within ten days after the finding of the jury, must identify some subsequent action of the commissioner to which the appeal is applicable.</p> <p>Unauthorized appeal: Affirmance: Certiorari: Errors that do not prejudice. The appeal being unauthorized, and the action had by virtue of it being nugatory, the judgment of affirmance of the original proceedings, which had by lapse of time become under the statute final and unappealable, could work no injury to the appellants, and will not be disturbed on certiorari on their behalf.</p>

The statutory trespass which authorizes treble damages involves willful, wanton or evil intent, and the simple act of cutting timber on another’s land, without reference to the intent, does not present a case for imposing the penalty of trebling the actual damage done: Wallace v. Finch, 24 Mich., 255; Bussell v. Myers, 32 Mich., 522.

<p>Contracts: Construction: Conditions precedent: Performance. Sureties on a. ne exeat bond in a divorce suit having, after decree grantingalimony and continuing the ne exeat in force, and after their principal had committed, a breach of the bond and suit had been brought on the same, entered into a contract with the complainant in the-divorce- suit, whereby they undertook, in case they should obtain leave to and should surrender their principal in their discharge as sureties, and should thereupon be discharged, and further, in case su*ch principal should not perform such decree and should be committed for contempt or for * want of bail, in consideration that the suit on the* bond should be- discontinued, and. which ifc was declared, should be done on such surrender, to pay all the costs and fees of the jailer for the custody and keeping of said principal, and in case the principal should not eventually, and before being discharged, pay or perform the decree in the divorce suit, or satisfactorily secure the same, then to pay said complainant the amount for which they were sureties in the bond, it was held that the obtainment of the discharge of the sureties from liability on the bond, and the capture and ¡surrender of their principal, and the discontinuance of the suit on the bond, and the enforcement of the decree against said principal if practicable, were conditions precedent to any. liability on the part of said •sureties to pay said complainant any thing upon said contract; and that a finding of facts which negatives performance of these several conditions precedent, is conclusive against any right of action in favor of said complainant on said contract.</p>

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

<p>Certiorari to Circuit Court Commissioner of Ottawa County.</p> <p>cited: Comp. L. 1871, §§ 5596, 6428; Drake on Attachment, § 411; Bower v. Towne, 12 Mich., 233; Arnold v. Nye, 11 Mich., 456; Whipple v. Williams, 1 Mich., 115.</p>

<p>Promissory notes: Illegal consideration: Presumptions. In an action upon a note, given for a premium upon a policy of insurance, which, is paya ble generally, and makes no mention of the place where made, it appearing that the plaintiff is a foreign corporation, it will not be presumed, in the absence of any thing showing where the policy for which the note was given was issued, that it was a Michigan policy, and was issued, and the note given for it, in violation of the laws of the state applicable to foreign insurance companies doing business here.</p>

Joseph Circuit. as to the irrelevancy of the Inquiry whether Reed regarded himself as liable, argued that the opinion of the party as to his liability was not evidence of any fact in the case relevant or material to the issue; and that it was not a question of science or skill, or of the kind admitting of the opinion of experts: 1 Greenl. Ev., § 440.

This was assumpsit upon a promissory note; plea the general issue, with notice of special matters of defense. Proceedings were stayed for a considerable time, and when that stay was removed and the cause set down for trial, the defendant filed a plea of payment, in the form of a plea puis darrein continuance, to which no demurrer or replication was filed.

<p>Application for mandamus.</p>

<p>Application for mandamus.</p>

upon the question of the admissibility in evidence of the contract between defendant and Johnson & Co., cited: People v. Jenness, 5 Mich., 307; People v. Doyle, 21 Mich., 221; Clark v. Me Or aw, 14 Mich., 139; Stephen's Dig. of Fv., 14; 1 Greenl.

<p>Foreclosure sale: Order setting aside sale: Appeal: Interested party. A complainant who has purchased at foreclosure sale and afterwards conveyed to a third party, would be injuriously affected by an order setting aside the sale under which he acquired the title which he afterwards parted with, and has an interest in the matter sufficient to support an appeal.</p> <p>.Setting aside foreclosure sale: Third party interested: Notice. On a motion to set aside a foreclosure sale, when it appears that third parties have acquired rights in the premises under the sale sought to be set aside, no further proceedings should be taken until they have notice and an opportunity to be heard.</p>

<p>Fraud: Indivisible cause of action: Settlement. A fraud cannot be separated! into two causes of action, and one settled for and the other left openr it is and must be an entirety. And a demand for the fraudulently selling by defendants to the plaintiff of property not their own, which has been paid for partly in plaintiff's own money and partly with obligations-of another, the transaction being a single one, cannot be split up and the fraud settled.for so far as it applied to the cash purchase, and the* controversy left open as to the residue.</p> <p>Settlement: Fraud: Charge to the jury.- And where a settlement is admitted, the controversy being whether it was a full accord and satisfaction or confined to the portion of the property for which plaintiff paid in his own money, and there being no evidence that it was expressly agreed to leave some portion of the controversy outside the settlement, a charge that if there was a full accord and satisfaction of plaintiff’s individual claim, or if he released any claim or demand he had in his-individual name, there could be no recovery, is held not error.</p>

<p>Foreclosures: Deficiency: Proceedings at law: Leave of court. Under the* statute {Comp. L. 1871, § 8149) leave of the court where the foreclosure-was had, is essential to justify proceedings at law to recover a deficiency on a mortgage foreclosure in chancery.</p> <p>Personal decree: Seiwice: Appearance: Publication. A personal decree*» cannot lawfully he rendered against a defendant brought in by publication, but who has not been served with process or appeared in the cause.</p> <p>Foreclosure sales: Deficiency: Interference to prevent fair sale: Fsioppel. The interference by parties interested in a chancery foreclosure sale to» prevent a fair and usual sale to the highest bidder, as by making arrangements with persons who intended to bid at the sale to protect their interests, whereby they were deterred from bidding, is enough of itself to» estop them from claiming a deficiency on the sale, which they have been the means of creating; and their action at law for an alleged deficiency so created will be enjoined in equity.</p>

cited: Campbell v. Charter Oak Ins. Co., 10 Allen. 213; FF. Y. Centml Ins. Co. v. Watson, 23 Mich., 486; Security Ins. Co. v. Fay, 22 Mich., 467. He argued that the failure to furnish proofs of loss within the time prescribed, and the violation of the provision as to the property becoming vacant or unoccupied, were complete defenses unless there had been a waiver by conduct which had misled plaintifl to her prejudice. 1.

Appeal in Chancery from Kent Circuit. to the point that it was proper for the court to make computation of the amount due, cited: Ireland v. Woolnian, 15 Mich., 253; that a decree for the whole amount due was proper: Comp. L. 1871, §§ 5147, 5157-9; Adams v. Brown, 7 Cush., 220; Whitney v. Kichelberger, 16 la., 422; Lyman v. Sale, 2 Johns.

<p>Proceedings to disbar an attorney.</p>

<p>Exceptions from Kent Circuit.</p> <p>cited: 2 Hast P. U., 555; Bex v. Williams, 1 O. & K., 195; Arclib. Or. Pr. & PI. (notes'), p. 361-2 (2).</p> <p>cited: 2 Bish. Grim. L., 829; and cases cited; Lealce v. The State, 10 Humph., 479.</p>

<p>Curtilage: Dwelling house: Barn: Separated by public highway. A bam situated fifteen rods from the dwelling house, with a public highway passing between them, and a yard between the barn and the highway, is held not to be within the curtilage of such dwelling house.</p>

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

<p>Evidence; Pleadings: Defense: Decree in another suit: Res adjudicaia. In an action to recover damages for the breach of a contract whereby defendant agreed to allow and permit plaintiff to make, construct and use a certain improvement in artificial gums and palates in his profession of dentistry, the breach alleged being the suing out of an injunction, the decree in the injunction suit would not be admissible in evidence as a bar to the present suit where the same was not set up or relied upon in the pleadings.</p> <p>Pendency of another suit: Plea in abatement. The pendency of another suit involving the same matters, if relied upon at all, must be pleaded in abatement; and it is not a bar.</p> <p>Contracts: Permission to use patented improvement: Injunction. The suing-out and service of an injunction is held to be a breach of a contract to> allow the plaintiff to make use of a patented improvement.</p> <p>■Injunction: Irregular service: Subpoena: Violation of contract Though one-who is served with an injunction and is not served with subpoena may-doubtless have the injunction set aside for irregularity, and might pos sibly under some circumstances be justified in disregarding it altogether, yet where one having a contract permitting him to use a patented improvement is served with injunction at the suit of his grantor, he has a right to treat it as a public and formal declaration on the part of such* grantor not to abide by his contract, and is under no obligation, when the necessary steps are not taken to bring him before the equity court in the injunction suit, to present himself there to get rid of the writ of injunction.</p> <p>Contracts: Preach: Injunction: Irregular sei'vice. It does not lie with the party who has caused an injunction to issue in violation of his contract» when sued for a breach of the contract, to say that the other party might have been relieved from the injunction in the injunction suit by-producing and proving his contract.</p>

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

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

<p>Error to Superior Court of Grand Bapids.</p> <p>cited: 1 ■ Pars, on Cont., 368; i Fast, 462; 1 Penn., 382; 3 Penn., 282 ; 5 Bawle, 68; 11 Mich., 219; FT Mich., 355 ; 4 Am., 296»</p> <p>cited: King v. Upton, 4 Oreenl., 387; Filing v. Vanderlyn, 4 Johns., 237.</p>

on the point that Kellogg could not hind defendant hy the certificate admitted in evidence, cited: Peek v. Detroit Novelty Works, 29 Mich., 313; National Bank v. Norton, 1 Sill, 579; Junction P. P. Co. v. Peeve, 15 Ind., 236; Ang. & Ames on Corp., § 277; Neale v. Burton, 4 Bing., 148; and on the point as to permitting the jury to take to the jury-room the hook: 1 Green Pr., 267; 1 Burr.

<p>Justice's courts: Joint parties: Appeals. Ifc is competent for one of several plaintiffs or defendants to carry a case heard before a justice of the peace to the circuit court on appeal, and the refusal of his co-parties to unite with him in an appeal cannot preclude him from taking it on his own behalf.</p>

<p>¡furors’fees: Superior court of Grand Rapids: Kent county. Tlie county of Kent is held to be liable under the statute for the fees of jurors in the superior court of Grand. Rapids.</p> <p>»Legislative authority: Jurors’ fees. It was competent for the legislature to require the county of Kent to pay the fees of jurors in said court.</p> <p>Constitutional law: Municipal courts. The legislature had authority under the constitution to establish said superior court. The constitution (Art. VI., § 1) plainly reserves to the legislature the power to carve out of the judicial power vested in the other courts named such authority as it would be proper to confer upon city courts, and to create such courts for its exercise.</p> <p>Municipal courts: Jurisdiction. It is for the legislature to determine the extent of the authority to be given municipal courts, subject to the restriction that it must not exceed that which can properly pertain to a municipal court. It was not the intention of the constitution that every municipal court should possess both civil and criminal jurisdiction.</p>

Application, for Mandamus. This is an application to require respondent to vacate an order granted by him, vacating an order of the circuit court commissioner, holding to bail one Hervey S. Dale upon a capias ad respondendum, wherein relator was plaintiff.

argued that the city was not liable on an implied assumpsit created in this manner; that the contract providing expressly that the city should not he liable for any portion of the special assessments until the same should have been paid into the city treasury and that the contractor should depend entirely upon the special assessments, and the charter providing that no such public work should he paid for or contracted to he paid for except out of the proceeds of the tax or…

Appeal in Chancery from Ingham Circuit. as to the-claim that the bond and mortgage were void because executed-under duress, argued that it clearly appears from the evidence-that defendant was under a legal arrest, and was guilty of the-crime charged in the complaint, and that legal imprisonment by order of law is not duress by imprisonment: Bouvier Law Die., 513; 1 Bars, on Cont., 319; Bood v. Winslow, 2 Doug., 68; Beclc v. McAlpine, 3 Caines, 166; Watlcins v. Baird, 6…

There can he no doubt that the plaintiff had originally a lien upon these logs which was not lost by the surrender of a portion of them: Comp. L. 1871, § 2788. Held: with reference to statutory liens, that if before the lien becomes duly fixed as prescribed by law, another person obtains title to the property, the lien is thereby defeated as to that particular property.

<p>Appeal in Chancery from Kalamazoo Circuit.</p> <p>cited: Kerr on Beceivers, 1, 86, 41-3, 46, 47, 49, and cases cited; Kdwards on Beceivers, 83-55, 60, 351; Berney v. Sewell, 1 J, & W., 648; Sturch v. Young, 5 Beav., 557; Ackland v. Graverner, 31 Beav.,. 484; Silver v. Bishop, 3 Swan, 115, n; High on Beceivers, §§ 640, 658; Williams v. Bobinson, 16 Conn., 524; Beverly v. Brooke,, 4 Gratt., 209; Oortleyen v. Hathaway, 3 Stock., 39; Beid v. Middleton, T. B., 255; Aberdeen v. Chitty, 3 Y. & O., 379; Meaden v. Sealey, 6 Harr. Gh.,620; Holmes v. Bell, 2 Beav., 298; Bayne v. Atterbury, Harr. Ch., 414; 4 Kent Com., 152; Beade v. Hamlin, Bhill. Kg., 128; Brown v. Chase, Walk. Ch., 43; Noyes Bich, 52 Me., 115; State v. Northern By. Co., 18' Md., 193; Henshaw v. Wells, 9 Humph., 567; Bank of Ogdensburg v. Arnold, 5 Baige, 38; Syracuse City Bank v. Tallman, 31 Barb., 201; Bost v. Dorr, 4 Kdw. Ch., 412; Hyman v. Kelly, 1 Nev., 187; Sea Ins. Co. v. Stebbins, 8 Baige, 565; Howell v. Bipley, 10 Baige, 43; Astor v. Turner, 11 Baige, 436; Shotwell v. Smith, 3 Kdw. Ch., 588; Lofslcy v. Manjer, 3 Sandf. Ch., 69; Quincy v. Cheeseman,. 4 Id., 381; Kinch v. Houghton, 19 Wis., 149.</p> <p>cited: Comp. L., § 6263; Mundy v. Monroe, 1 Mich., 68; Baker v. Bierson, 5 Mich., 456; Caruthers v. Humphrey, 12 Mich., 270; Crippen v. Morrison, 13‘ Mich., 23; Ladue v. B. & M. B. B. Co., 13 Mich., 380; Newton v. Sly, 15 Mich., 891; Hogsett v: Kllis, 17 Mich., 351; 1 Hilliard on Mort., 199; Zeiter v. Bowman, 6 Barb., 133; Weidner v. Koster,. 2 Benn., 23; Myers v. White, 1 Bawle, 355; Syracuse, etc., v„ Tallman, 81 Barb., 201.</p>

<p>Case made from Superior Court of Grand Eapids.</p> <p>cited: Comp. L., § 4706; Tannahillv. Tuttle, 3 Mich., 105; People v. Bristol, 35 Mich., 28; Montgomery v. Wight, 8 Mich., 149; Thompson v. Van Vechten; 5 Abb. Pr., 437; Worthington v. Hanna, 23 Mich., 531; Leland v. Collver, 34 Mich., 418; Eggleston v. Mundy, 4 Mich., 297.</p> <p>cited: Hamilton v. Bogers, 8 Md., 301; Otis v. Sill, 8 Barb., 102; Bowan v. Sharp's Bifle Manf. Co., 29 Conn., 2S2; 33 Conn., 577; 13 Mete., 17;. 2 Story, 630; Leland v. Collver, 34 Mich., 418; Fowler v. Hoffman,¶31 Mich., 215; Holly v. Brown, 14 Conn., 254.</p>

<p>Error to Kent Circuit.</p> <p>cited: Story on Part., §§ 37, 53-61; Leggett v. Hyde, 58 N. 7., 275; Hinman v. Littell, 23 Mich., 484; Ex parte.Hamper, 17 Ves., 404; Ex parte Bowlandson, 1 Bose, 91.</p> <p>cited: Pipp v. Heynolds, 20 Mielh., 88; Turner v. McCarthy, 22 Mich., 265; Story on Part., §§ 30, 32, 34, 36, 41-9; Chase v. Barrett, 4 Paige, 149; Manhattan, etc., Co. v. Sears, 45 JT. T., 797.</p>

<p>Mortgages: Assignee: Negotiable paper: Bona fide holder. An assignee of a mortgage given to secure the'payment of a negotiable note is held entitled to the same protection that he would have as assignee of the note without the mortgage.</p> <p>.Promissory notes: Payable on or before a specified time: Due: Bona fide purchaser. A note which is payable “on or before three years from date” is not due until the three years has expired; and a purchaser for value within that-time is entitled to the same protection as if the note were made payable three years from date.</p> <p>.Negotiable paper: Bona fide purchaser: Bad faith of payee. It cannot render a purchase of negotiable paper suspicious that the payee has an interest in getting it oil his hands; this fact would not necessarily be known to the purchaser, or influence in any manner his action; and in determining whether a purchaser is entitled to be considered a bona fide holder, it is his bona fides, and not that of the payee, that is in question.</p> <p>Negotiable paper: Bona fide purchaser: Agent for collection. The fact that the purchaser of negotiable paper, resident in‘a distant part of the state, employs to collect the same a person who is also agent for the payee, is not very significant as indicating want of good faith in the purchase.</p>

<p>Notice: Evidence: Weight: Tendency: Question for jury. Where it is st, material question whether a party had notice of a certain fact, it is not proper, where there is a contest upon the facts, for the court to charge that there was no evidence tending to show such notice, except in a case free from doubt. Ordinarily not only the weight but the tendency of the evidence, when once introduced, becomes a question for the jury, who are to examine it and give it such effect in the light of all the facts as they think it fairly entitled to.</p> <p>Record: Absence of evidence: Bill of exceptions. Where the bill of exceptions does not purport to give all the evidence in the case, although it states that the substance of the entire testimony on the part of the plaintiff is given, it would hardly be safe to hold there was no evidence tending to show a particular fact and on that basis to overturn the ruling of the trial court refusing to so charge.</p> <p>Weight of evidence: Credibility: Question for jury. There being evidence of a witness fairly tending to show that he notified the party of the fact, of which it is claimed there was no evidence of notice, it will not be held the court erred in refusing to charge there was no evidence of such notice, notwithstanding the cross-examination of the witness who testified to it may have shaken his testimony; the proper effect to be given to his entire testimony as a whole was for the jury, and not for the court, to determine.</p>

<p>Mandamus: Doubtful rights. Mandamus will not issue to enforce any doubtful right.</p> <p>Mandamus: Warrants for county buildings: Vote of people. Under the statute {Comp. L. 1871, § 477) it . requires a popular vote to authorize the borrowing or raising by tax for building purposes in any one year by a county, of a sum. exceeding one thousand dollars; and mandamus is refused to compel provision to be made by taxation tofpay warrants amounting to twenty.six hundred and forty dollars, purporting to have been issued by a board of supervisors for county building purposes between June, 1874, and January, 1875, where the [question of raising or borrowing this money has never been submitted to a vote of the people, the relator having notice of the invalidity of the warrants.</p> <p>Removal of county seat: Resignation of place. Proceedings 'to remove a county seat, which fail to designate the place to which the proposed’ removal is to be made, are held invalid.</p> <p>Mandamus: Supervisors' warrants: Existence of county. On this application for mandamus to compel the raising a tax to pay warrants purporting to be issued by a board of supervisors, the question of the validity of the proceedings to organize the county, not being essential to the decision of the case, is not determined.</p>

<p>Guaranty: Condition: Performance: Construction. A guaranty of payment of notes of third persons, to be paid out of the proceeds of a stock of goods belonging to the makers of the notes and on which the guarantor had a mortgage, the stock of goods then being held on a writ of replevin by an outside party, and the guaranty being conditioned to become operative only in the event of the guarantor getting possession of the goods under his mortgage, is held not effectual to make the guarantor liable in case of his failure to get possession of the goods, notwithstanding out of the litigation for possession of the goods he received some portion of the proc'eeds of the goods, but less than enough to satisfy his mortgage.</p> <p>Guaranty: Condition: Construction. Tlie condition in the guaranty, that it should, become operative only in the event of the guarantor getting possession of the goods on his mortgage, would not be answered by the guarantor’s merely getting payment of his mortgage debt; the natural and obvious sense of the words of the condition import something more than this, and there is nothing to warrant a departure from that sense in construing the guaranty.</p>

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

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

Appeal iu Chancery from Calhoun Circuit. A court of equity, in order to ascertain and carry out the intention of parties to a particular transaction, will look at their situation and the whole transaction between them: Frink ■ v. Cole, 10 III., 339.

<p>Homestead: Exemption: Construction. Provisions exempting a homestead from execution are to be liberally construed, especially where the exemption is restricted within limits so very moderate as those which are prescribed in this state; and an intention to modify this right to the prejudice of the debtor, by a statute having other purposes for its object, is not lightly to be inferred.</p> <p>Homestead* JWarm: Extension of village limits. An extension of village limits so as to, include a farm occupied as a homestead and within the constitutional exemption- as to size and value, will nob operate to reduce or diminish the right of exemption to the equivalent of a town lot according to the recorded plat, where the property is still occupied as a homestead and cultivated as a farm.</p>

<p>Equity pleading and practice: Sworn answer: Affirmative defense. While an answer called for on oath is to .be received as true so far as it is responsive to the averments of the bill, affirmative matters of defense which are thus set up must be proved.</p> <p>Foreclosw'es: Payment to adverse claimant: Evidence: Matters equally within knowledge of deceased. Where in defense to a foreclosure bill the existence of paramount outstanding titles to a portion of the lands against which the mortgagee had covenanted by warranty deed of the X^remises to the mortgagor, is set up, and the payment by the mortgagor to an adverse claimant of a sum which the mortgagee consented should be applied on the mortgage, evidence by the mortgagor, after the death of the mortgagee, of admissions by the latter of the defects in his title and of his consent to application on the mortgage of an amount paid by the mortgagor to an adverse claimant, is held inadmissible under the statute (Comp. L. 1871, § 5968) as relating to matters which in his lifetime was equally within the knowledge of the mortgagee, and properly disregarded by the court below.</p> <p>Foreclosures: Payment to third party: Consent of mortgagee. The sum thus paid out by the mortgagor having been paid in settlement of a dispute growing out of the cutting of timber by a third party on the mortgaged lands, which settlement left a large amount of timber in the mortgagor’s hands ready for working up, and the fact that this was cut without expense to him having been taken into account in the settlement, in the absence of evidence of any understanding with the mortgagee that this payment should be applied on the mortgage, or of any reason which, in law or in morals, should require him to consent thereto, the court will not assume that he so agreed, nor compel the application of such payment on the mortgage.</p> <p>Foreclosures: Amount: Defense: Proofs. The defense that a parcel claimed to have been twice described in the deed of conveyance from the mortgagee to the mortgagor, was twice taken into account in fixing' upon the amount of the mortgage, cannot prevail in the absence of proof of the fact.</p>

This suit was brought by plaintiffs in error in justice’s court, where they obtained judgment, and the school district took an appeal to the circuit. The cause in the circuit was tried by the court without a jury and the following special finding filed, viz.: “This cause was tried before the court without,a jury, and the following facts are found and conclusions of law deduced therefrom: “First.

<p>Jtcrisdiction: Return: Amendment: Discontinuance. The query is suggested, whether it is competent under any circumstances to amend a return on which jurisdiction over property depends, after the suit has been discontinued.</p> <p>Return: Amendment: Rfotice. A return cannot he amended in matters affecting the jurisdiction without notice to the parties to he affected hy it,.</p> <p>Officer: Misconduct: Return: Ex parte amendment. An officer who is sued for misconduct in office cannot, pending* the trial, manufacture evidence for himself by an ex parte amendment of his return covering the official action which is the basis of the suit against him.</p> <p>Attachment: Levy: Partnership property: Individual interest. There is * no room for a presumption that a levy of an attachment running against the goods and chattels of one member of a firm, upon specific partnership property, item by item, the appraisal being made in like manner, is</p> <p>• a levy upon the partnership interest only of the defendant in the writ. Attachment: Partnership property: Individual interest: Specific chattels. A</p> <p>levy on the interest of a partner, if it can be made at all under an at- ‘ tachment, cannot be made on specific chattels. Such a levy is a trespass. Attachment: Individual interest: Mrm property: Joint action. The unlawful levy of an attachment against one member of a firm on specific chat- ' tels of the firm is injurious to both partners, and may therefore be the subject of a joint action and give rise to a joint judgment, where the injury is tangible and the property disturbed or destroyed.</p> <p>Damages: Destruction of business. And damages in such case for the de- . struction of the business are allowable.</p>

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

<p>Superintendents of the poor; Removal from office: Supervisors. Tlie supervisors have no general authority to remove from office at their discretion superintendents of the poor; the statute (Comp. JO. 1871 § 477, Sub. 14) giving them express authority to remove on the specific grounds of neglect or refusal to report or to give bonds, and no other power of removal being conferred, a general authority to remove will not be implied as a consequence of the power to appoint.</p> <p>Superintendents of the poor: Removals from office. The general statute concerning removals (Comp. JO. 1871, eh. 11) contains no provision applicable to superintendents of the poor. Our state system favors appointments for fixed periods and almost entirely rejects the policy of removals at will, and this rule of action appears to have been observed in the regulations concerning superintendents of the poor.</p> <p>Mandamus: Title to office: Warrants: Officers de facto. On an application for mandamus to require the county treasurer to pay an order drawn by persons claiming to be superintendents of the poor, the legal title of the officers will not be tried; but it appearing on the record that their appointment was unauthorized, mandamus will not be granted unless it appears that notwithstanding the want of title, they have got actual possession and are generally reputed to be- such officers, and are hence officers defacto.</p> <p>Officers: Void appointment: Recognition. The supervisors having acted without authority in making the appointment of new officers to fill a supposed vacancy caused by their attempted removal of existing officers, their immediate recognition of the appointment as one to be respected, cannot be regarded as of any importance; they merely attributed validity to their own invalid act.</p> <p>Officers: Recognition. One of three superintendents having been a party to the controversy out of which resulted the attempted removal by the supervisors of the other two, and the appointment of others in their-places, his recognition of the new appointees as his colleagues or co-superintendents, would be of little force to make out that they were officers de facto.</p> <p>Mandamus: Answer: Officers defacto: Acquiescence. In mandamus cases where the matter is heard on petition and answer, the answer is to he taken as true; and the statement in the answer in this case that the superintendents sought to he illegally removed have retained the files and records of their offices, have constantly denied the right to make the removal, and have continued to act as officers, is conclusive against the claim of the new appointees -that they have acted as such officers with general acquiescence in their right.</p>

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

<p>Wills: Bequest: School district: Library. A bequest to a school district board named, and their successors, in trust to invest at interest and expend the interese annually for purchasing and adding to a school library, such books to be selected as will be suitable for people of all ages and classes in the district, and so used by them under proper rules and regulations as shall best promote the interest of education, general literature and morality, is sustained as a valid bequest.</p> <p>Wills: Beneficiaries: Managers: Trust: School district board. The intended beneficiaries and the managers are persons known to the law as competent to take and use all property destined for the legitimate uses of school districts, when sufficiently designated and granted.</p> <p>LibraHes: School apparatus: Bublic school purposes. Libraries must certainly be considered within the proper range of school apparatus, and the design of this bequest cannot be held to be in conflict with public school purposes.</p> <p>Bequest: Bublic school library: Charities: Definiteness: Discretion: Intent. The bequest is for a purpose coming within the range of charities, but the doctrines applied to imperfectly defined gifts and trusts are not involved; the property, the trusts, the beneficiaries and the trustees or managers, are all definitely specified; the only discretion involved is that of the lawful administrators of the district, and is a corporate discretion; and there is no room for technical criticism upon the question whether the bequest is to the district or to the board; the intent is not obscure.</p> <p>Bublic corporations: Bequests: Acceptance: School district: Library. There is nothing in our laws which cuts off public corporations from accepting benevolent offerings to enable them to extend their usefulness and benefit their people by enlarging their opportunities for culture and refinement without multiplying or increasing their burdens; and a school district may lawfully accept a bequest of a fund to be invested and the interest expended in purchasing and keeping up a district library, and it is legally capable of administering such a trust.</p>

<p>Vondemning lands for railroad purposes: Probate court: Jurisdiction: Notice. The jurisdiction of the probate court in proceedings to condemn lands for railroad purposes, is dependent upon proof of a valid notice to the land owners, and notice mailed to a party whose residence was in fact, and was so alleged in the petition, at Aurora, New York, directed to "him at Batavia, Cayuga county, New York, is void.</p>

to the point that an appeal would not lie from the action of claim commissioners upon contingent claims, cited: 1 Mich., 193; 3 Mich., 163; 20 Mich., 366; 3 Mass., 309; B Mass., 614; 5 Johns., 174; 3 Wend., 494; 4 Bill, 207; 8 Post., 520; and that mandamus was the proper remedy to compel them, if they refused to perform their duty: Moses on Mand., 14; 23 Wend., 456; 35 Barb., 408; 24 N. T., 114; 11 Abbott Pr., 17; 37 Barb., 466. cited: Clark v. Davis, 32 Mich., 159.

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

The assignment by the principal defendant to his mother did not pass to the latter the title to any of his earnings which accrued subsequent to its date.

<p>Finding of facts: Supported by evidence: Weight of evidence. On the question whether a finding of facts is supported by the evidence, the conclusion of the judge is not to be set aside because in the opinion of the court of review he has erred in his judgment on the facts, provided there was some evidence to support it; the weight of the evidence is not to be reconsidered.</p> <p>Promissory notes: Joint makers: Extension: Additional name: Surety. Where one of two joint makers of a promissory note obtains of the payee an extension of the time of payment and procures an additional name to the note, this will not release the other maker, though as between the makers the latter claims to be surety only, the payee having no notice of any such relation.</p>

This was replevin for some wheat which the plaintiff, ^Seybold, claimed by virtue of a purchase of an interest in the growing crop, to be paid for in oats to be delivered at -a future time. The suit was originally brought in justice’s •court, where judgment passed for defendant, and the plaintiff- appealed. In the circuit the plaintiff had judgment, and •defendant brought error and the judgment was reversed and a new trial ordered: see 35 Mich., 169.

<p>Legislative authority: Boundaries of representative districts: Supervisors. The legislature has authority, except as prohibited by the restrictions of the constitution (Art. IV., § 4), to change the boundaries of representative districts, and this power is not lodged exclusively with the supervisors.</p> <p>Bepreseniative districts: Change of boundaries: Constitutional restriction: New enumeration. The constitutional requirement that each apportionment and the division into representative districts, etc., shall remain unaltered until the return of another enumeration (Art. IV., § 4), does not preclude the legislature, at its first session after a new enumeration, from enlarging the boundaries of a city so as to take in territory before belonging to another representative district, though the new apportionment has not yet been actually made.</p> <p>Constitutional law: Titles of statutes: Defining boundaries: Cities. It is competent in an act the title of which expresses the idea of defining and making distinct the boundaries of a city, to provide for enlarging and extending the city limits so as to take in new territory; the word “define,” as applied to territorial limits, in its broadest sense, means something more than to determine boundaries already established; and the constitutional limitation, requiring the'object of the law to be expressed in the title, was not designed to confine the legislature to the use of words in their most restricted sense in the titles of acts.</p>

<p>Bill to quiet title: Possession: Title: Bes adjudioata: Contract for conveyance : Attachments. A person, having conveyed his farm to his wife, the two joined in a mortgage thereof for six thousand dollars running for five years; the wife thereupon gave hack to her husband a contract to reconvey to him on his paying the mortgage in five years, ancl also giving him the right to hold possession during the five years; attachments against the husband were levied upon the farm as real estate; the attachment debtor made assignments of his contract, and quit-claimed the farm to his wife; bankruptcy proceedings were instituted against him, which resulted in an adjudication of bankruptcy; the rights of the attaching creditors, the wife under the quit-claim deed, and the assignees of the contract, came before the bankruptcy court for determination, and it was there held the bankrupt’s rights consisted, first, of a right to have conveyance of the farm provided he paid the mortgage in five years; and second, the right of possession during that term; and the right of the assignee in bankruptcy to the possessory right was sustained as subject to sale absolutely, but the interest in the farm under the stipulation for reconveyance was held to be subject to the attachment levies; the assignee in bankruptcy thereupon sold his interest in the farm and products; judgments were rendered in the attachment causes, executions issued and levied on the farm as real estate, and sales made; the titles of the purchasers at the assignee’s sale and of the bankrupt’s wife having been brought together in complainant, he filed this bill to quiet his title against said attachment and execution levies and sales:—</p> <p>ITeld, That the determination of the bankruptcy court upon the rights of the parties is binding and conclusive upon them; that the evidence is satisfactory as to complainant’s possession and in regard to his ownership of an interest to entitle him to bring this bill; and that if the proceedings in the attachment causes are insufficient in law to bind any interest in the farm, and only give a color of right, and finally prejudice complainant’s title only as they becloud it, their power to so operate ought to be taken away.</p> <p>Right of possession of lands for term of years: Chattel interest: Execution levy. The right to the possession of the farm for the five years under the contract was a chattel interest, and if subject to seizure on attachment, it was as a chattel interest, and not as real estate; and a levy upon the farm as real estate, making no reference to the mere possessory right, would not reach that interest.</p> <p>Contingent right to conveyance: Equitable interest: Levy. The contingent right to a conveyance under the contract was not a legal interest, but a mere equity, and incapable of being held by levy at common law.</p> <p>Contingent right to conveyance: Equitable interest: Execution levy: Subsequent proceedings. If such contingent right was liable to be subjected upon attachment and execution, it could only be done through compliance with the statute (Comp. L. 1871, § 4628) providing for supplementing levies by proceedings to ascertain and determine the interest seized; and assuming the levies were properly shaped to subject such right, it would be indispensable to their continuance in force that proceedings be taken, either before sale or within a year thereafter, to ascertain and determine the interest.</p> <p>Contract for conveyance: Condition: Time: Attachment levies: Sales. The condition on which the right to reconveyance hinged never having been performed, and the time for its performance having expired before the sales on the executions, «the equity of the debtor in the lands was extinguished and no interest or right remained to support the proceedings.</p> <p>Contract to reconvey: Attachment: Offer to perform. The .attachment creditors having purchased in the mortgage, their oiler to surrender it to the mortgagor’s wife, on condition that she would convey the farm as provided in the agreement she had given her husband, could have no force, as they then had no title to such agreement for conveyance, and had no right to call upon her for performance of its covenants.</p>

<p>Mortgages: Power of sale: Statutory requisites: Mistake: Good faith. In executing the power of sale in a mortgage the statutory proceeding must comply substantially with all the conditions set by the legislature, and those who conduct the foreclosure must observe good faith, and pay a proper regard to the interests of all who may be affected by the proceedings; and no defect or misstep in matters of substance will be cured or excused by any proof that it happened by mistake, and was not induced by a bad purpose.</p> <p>Mortgages: Statutory foreclosures: Illegalities: Giving time to redeem. An offer to the mortgagor to give him time within which to redeem from foreclosure sale the whole or part of the premises, cannot avail to correct illegalities, or to preclude the mortgagor from taking advantage of them and demanding to redeem as matter of right; and the limit of time proposed for redemption in this case, being but ten days, was inequitable.</p> <p>Contiguous parcels occupied as one farm: Sales in parcels. The query is suggested, whether where premises are composed of contiguous parcels occupied together as a single farm, a sale in parcels is essential to a valid foreclosure.</p> <p>Statutory foreclosures: Sale in parcels. The sale having been made in parcels, however, if incapable of being sustained as a sale in parcels, it cannot stand as a valid sale in bulk; the sale must be contemplated as it was, rather than as it was not.</p> <p>Statutory foreclosures: Deeds: Sale: Parcels. A deed which represents the sale as one made in bulk for a single bid, is not a proper one where the sale was in fact in separate parcels and for several bids.</p> <p>Foreclosure deed: Acknoiuledgment: Statute construed. Though the statute makes no express requirement that the deed executed and delivered on foreclosure sale shall be acknowledged, or have appended a certificate of acknowledgment, yet in view of the fadt that the statute contemplates that the deed when placed on file shall be complete and in a condition to be recorded, in case redemption is not made, and considering the established practice in that regard, it is deemed essential.</p> <p>Foreclosure deed: Ante-dated: False certificate of acknowledgment. A deed executed and put on file ten months after the sale and falsely ante-dated and acknowledged as of the day of the sale, is not a valid foreclosure deed.</p> <p>.Statutory foreclosures: Two separate deeds: Inconsistent deeds: Ambiguity: Mies. Where on a foreclosure sale made in parcels a deed is made and filed in proper time, but which misrepresents the sale as one made in bulk and for a single bid, and thereupon, after ten1 months, a new deed is executed, properly representing the sale as one made in parcels» but which is antedated and purports to have been acknowledged on the day of the sale, and this, too, is put on file, the proceedings thereby become so duplicated and ambiguous as to be void. Parties are entitled to have the papers on file of themselves identify the sale and convey distinct information, without the aid of extrinsic inquiries, as to the time and manner of the sale and the price or prices bid.</p> <p>■Sale in parcels: Sufficient sold to satisfy mortgage: Further sale void. Where a foreclosure sale is made in x>arcels, when enough ¡parcels have been sold to satisfy the mortgage debt and all costs and expenses, the power of sale is exhausted, and affords no authority to make further sales of the remaining parcels.</p> <p>Irregular statutory foreclosure: Bill to redeem: Decree: Void sale: Sale under decree. On a bill to redeem from an irregular foreclosure, the foreclosure proceedings being found invalid, the decree should provide for redemption from the mortgage as an unforeclosed security, and not from the void sale; and in determining the amount to be paid on such a redemption, it is erroneous to make a rest in computing interest at the date of the sale; and the decree should provide for a sale as on foreclosure to produce satisfaction, in the event of failure to redeem.</p>

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

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

<p>Contract: Construction: Mortgage: Agreement to release in parí. A person holding a mortgage covering two parcels of land having contracted with his mortgagor that as soon as he should receive deeds of the parcels covered hy his mortgage he would convey to the mortgagor’s wife one of said parcels, the mortgagor to retain possession of the other parcel until such time as the mortgagee sells the same, and to pay the mortgagee interest at the rate of ten per cent, on an amount equal to the face of the mortgage, from the time of the conveyance to his wife of the one parcel until the sale by the mortgagee of the other, it is held to be a fair inference from this agreement, that the parties contracted in contemplation that a foreclosure should be had, and that in consideration of the change made in the form of security, the mortgagee was to release from the lien of the mortgage the portion of the land promised to be conveyed to the mortgagor’s wife.</p> <p>Foreclosures; Sale in parcels: Right to redeem: Waiver. The requirement that a foreclosure sale shall be made in parcels is in the interest of parties entitled to redeem, and to protect their right to redeem each parcel separately; but where a party has in advance for a valuable consideration agreed to waive his right to redeem, he cannot object that .the sale was not made in parcels; and this objection cannot be taken by the mortgagee to his own proceedings, where no one else is m position to make it.</p> <p>Mortgages: Contract: Amicable arrangement: Defective foreclosure: Costs of new foreclosure. A mortgagee having entered into such a contract with his mortgagor, if after a defective foreclosure he should deem it important for any purpose of his own to proceed to a new foreclosure for the correction of any error in his own proceedings, he could neither legally nor equitably charge his mortgagor with the expense thereof.</p> <p>Vendor's lien: Judgment: Amount: Execution sale: Release. Where a person claiming to have a vendor’s lien upon lands has mingled his claim for purchase money with a claim for the price of personal property, in a single judgment, in such manner as to render it impossible to determine how much of the judgment represents the price of the land and how much the value of personal property, and under this judgment proceeded to execution levy and sale of the premises in question, his lien as vendor for the unpaid purchase money is lost.</p> <p>Vendor’s lien; Equitable mortgage: Execution sale. A vendor’s lien is in the nature of an equitable mortgage; and under the statute {Gomp. L. 1871, § 4867) the equity of redemption cannot he sold on execution for the satisfaction of the mortgage debt; and an execution sale of the premises upon a judgment for the purchase price would seem to negative the claim of lien.</p> <p>Execution sale: Purchaser’s title. An execution purchaser can obtain no better right than the judgment debtor had at the time of the levy.</p>

Case made from Genesee Circuit. argued that there was no law to restrain or forbid a party from making contracts payable in the future upon the happening of an event; and that a note or pontract may be made payable when a certain event may occur in the future, however remote: Sword v. Keith, 31 Mich., 247; Kim-ball v. Kimball, 16 Mich., 211; Jttson v. Gilbert, 7 Am., 100; Payne v. Gardiner, 29 N Y., 146.

The instrument sued upon contains all the elements of a promissory note and is in legal effect a promissory note payable on demand. It would be overdue after the ¡lapse of a reasonable time; and any person taking it after such reasonable time had elapsed would take it the same as any other overdue paper, subject to the equities between the parties; and the payments and set-offs of defendants should have been allowed. And they cited: 2 Daniels on Keg.

<p>Mandamus: Petition for administration: Probate court: Remedy. Mandamus -will not lie to review the refusal of a probate court to grant letters of administration on an estate of a decedent.</p>

<p>Hearsay evidence: JEx parte presentation: Practice. It appearing feliat hearsay evidence was admitted against objection, and the case not having been argued for defendant in error, the judgment is reversed for the erroneous admission of the hearsay evidence, and the other questions raised are not considered.</p>

to the point that the competency of a witness is a question for the judge, and not for the jury, cited: Harris v. Wilson, 7 Wend,, 67; Commercial Panic v. Hughes, 17 Wend., 94; Coolc v. Mix, 11 Conn., 432; Beynolds v. Lounsbury, 6 Hill, 534; Halcomb v. Halcomb,■ 28 Conn., 177; Beg. v. Hill, 5 Hug. L. & H., 547; Naves v. Williams, 22 Bid., 368; Campbell v. State, 23 Ala., 44; Withauer v. Latham, 12 Conn., 392; Chottau v. Searcy, 8 Ho., 788.