37 Mich.

Volume 37 — Michigan Reports

151 opinions

37 Mich. 1Bradley v. Mann (1877)
 Alteration of Promissory Note. The addition of an interest clause to a promissory note -without the consent of the indorser releases the latter even as against a bona fide holder for value.
37 Mich. 4Bonker v. People (1877)
Solemnisation of Unlawful Marriages — Cumulative Testimony — Guilty Knowledge. The Michigan statute (Comp. L., § 4720) makes it a misdemeanor for one to solemnize a marriage, knowing that he is not lawfully authorized to do so, or that there is a legal impediment thereto. Held to apply t.o- marriages not authorized by law,, as where the girl is under the age of consent. Where a justice joined in marriage a girl who professed to be of the age of consent although she was apparently not, it was held competent to show that his family and her father’s were neighbors and acquaintances, and that at the marriage he did not inquire for her parents, who were not present; these facts tended to show that he knew the marriage was unlawful. The rule requiring the prosecution to call every attainable witness where testimony is needed to disclose any part of the transaction, is to prevent the suppression of evidence, and does not make it always necessary to call all witnesses, particularly where their testimony would be only cumulative, and the offense is not a crime of violence. When guilty knowledge is an ingredient of the offense, there need not usually be direct proof of actual, positive knowledge, but the jury may infer it from suspicious circumstances, such as apparently intentional neglect to make inquiry before engaging in a doubtful transaction. The fact of guilty knowledge should be left to the jury to deter- ' mine from all the circumstances.
37 Mich. 11Allemania Fire Insurance v. Hurd (1877)
Error to Branch. Assumpsit upon an insurance policy. The ease is stated in the opinion.
37 Mich. 14Eggleston v. Boardman (1877)
Attorneys — Measure of Compensation. Attorneys and solicitors must exercise reasonable skill, care, discretion and judgment in the conduct and management of the cases in which they are retained. In fixing the value of an attorney’s services, his professional skill and standing, his experience, the nature and character of the questions raised in the case, and the result must all be considered. The question is, what were the services reasonably worth, and this must be determined from the usual prices charged for similar services. The amount charged by an attorney in a given case is hot admissible in evidence to fix the value of the services rendered in the same case by the attorney for the other parties; nor does the amount paid in a particular case necessarily fix the amount in all like cases. Retainers are universally charged and need not rest upon a special contract; they are recoverable under the common counts without declaring specially. Details are supplied by the bill of particulars. A client is entitled to the personal services of his attorney upon the argument. But the retainer of one member of a firm is a retainer of all, and unless otherwise stipulated, the cause may be argued and conducted by any one of them. And if a client knowingly permits his case to be argued by a person in the service of his attorneys and under their direction, he is presumed to have consented thereto. A charge should be taken altogether, without giving undue weight to any portion of it.
37 Mich. 22Gault v. Van Zile (1877)
Assumpsit on a contract. The parties had signed a land contract November 19, 1813, by which Gault was to sell to Vau Zile some landpu New York and take in part payment therefor several lots in Kalamazoo; each party was to give the other, on April 1, 1814, a warranty deed subject to incumbrances specified; and Gault was to procure the extension for five years of a mortgage then resting on the New York property, or during that time protect Van Zile against any loss or damage…
37 Mich. 25Friend v. Dunks (1877)
Error to Lenawee. Action under tiie Civil Damage law. The facts are in the opinion.
37 Mich. 34Raynor v. Nims (1877)
Trespass. Raynor, having a writ of restitution under a judgment of foreclosure against the premises occupied by Nims, dispossessed the latter by putting him and his family and goods out of doors in cold weather. The jury found that Raynor had no right to the possession of the premises and gave Nims a verdict for two hundred and sixteen dollars and seventy-five cents. Raynor brought error.
37 Mich. 36Jones v. Hobson (1877)
- Assumpsit on a building contract. Plaintiff below recovered on a verdict, and had judgment for the amount, found in his favor less a remitter filed by him as a condition to the denial by the court of a motion made by the: defendant for a new trial. Defendant brought error.
37 Mich. 37Webster v. Gray (1877)
Statute of Frauds — Part Performance. Courts of equity will not enlarge the exceptions to the Statute of Frauds. Redress is not granted on a parol contract, for a part performance capable of full pecuniary measurement. The selection of swamp lands under a parol contract that the party making the selection shall have an interest in them, is not such a part performance as to take the case out of the statute of frauds. The employment is capable of pecuniary measurement. One who has let his legal remedy be outlawed cannot obtain relief in equity.
37 Mich. 40Randall v. Higbee (1877)
 Mortgagees cannot bring Assumpsit. Assumpsit lies only on a claim of ownership. One who has only a mortgage lien on goods cannot bring assumpsit for their value against one who has taken them to satisfy a claim.
37 Mich. 41Proctor v. Houghtaling (1877)
Error to Branch. Trespass on the case for slander. The facts are in the opinion.
37 Mich. 47Knowlton v. Johnson (1877)
Case made after judgment from St. Joseph. Trover eor conversion. The facts are stated in the opinion.
37 Mich. 52Boyd v. Corbitt (1877)
Case made from Kent. Assumpsit on a promissory note payable to the order of G. W. Janes and D. E. Corbitt, and indorsed in blank by them before maturity. Having been transferred, it was again indorsed in blank by its owner, J. W. Martin, and Boyd, the collecting agent, brought suit on it in his own name. Plaintiff recovered and defendant excepted to the rulings and judgment.
37 Mich. 53Harmon v. Dart (1877)
Error to Ingham. Assumpsit. The facts are in the opinion.
37 Mich. 55Wright v. Wright (1877)
 Laches in Asserting Fraud. Relationship may be an excuse for laches in the enforcement of rights. • The representations of one who has been in the actual occupation and cultivation of land, and purports to speak from actual results, so far combine matters of fact with matters of opinion that a purchaser is justified in' placing some reliance on them. A sale of-land was cancelled for fraud, and the decree required it to be reconveyed to the vendor’s administrator. On appeal it was objected in the interest of other defendants that this was unwarranted. 3eld, that a formal objection of this sort should have been' raised on the settlement of the decree below.
37 Mich. 59Baugh ex rel. McGuire v. Baugh (1877)
Bill to set aside a divorce. The bill was filed by the infant children of the parties divorced, appearing by their maternal grandmother as their next friend. Their mother had obtained the divorce for adultery, and the father had married again, and both parents- and the second wife were made defendants. The first wife made no defense, it being set forth that by the collusion of the father and the second wife she had been tricked into obtaining the divorce.
37 Mich. 63Finn v. Haynes (1877)
Case made from Superior Court of Grand Rapids. Trover for conversion. The facts are stated in the opinion.
37 Mich. 65Frost v. Vought (1877)
Error to Clinton. Trespass on the case for damages from breach of promise to marry.
37 Mich. 66In re Corrigan (1877)
 Bight to Hold Office. Where an application for a writ of habeas corpus involved the right of a certain person to act as justice of the peace, the court declined to consider that question except in a proceeding instituted against the person himself.
37 Mich. 67People ex rel. Jochim v. Kennedy (1877)
Error to Marquette. Information in the nature of a Quo Warranto. The .facts are stated.
37 Mich. 68Thorp v. Bateman (1877)
 Support of Infants. Where an infant is taken into a family, it is always the presumption that neither its support nor its services are to he compensated except as the one compensates the other. The breach of an express contract will not sustain an action on. an implied assumpsit.
37 Mich. 70Robson v. Michigan Central Railroad (1877)
Trespass on the case against the company for damages arising from neglect to fulfill its duty as a common carrier in the transportation of certain goods described as “goods and chattels of the plaintiffs.” The court below tried the case without a jury and found that on May 6, 1876, the plaintiffs had taken the goods on a debt from one Benedict, who, on December 25, 1875, had delivered to Messrs.
37 Mich. 72Phelps v. Whitaker (1877)
Error to Washtenaw. Assumpsit. The facts are in the opinion.
37 Mich. 79Bunker v. Paquette (1877)
Replevin for a house seized ou execution by Paquette as sheriff, while Bunker, its owner, was removing it from the lot on which it had been standing to another lot for which he had traded the former. Bunker brought replevin on the ground that the house was exempt from execution as his homestead.
37 Mich. 81Kitchell v. Mudgett (1877)
Bill or foreclosure. The court below decreed that as the defendant, Polly Ann Mudgett, had a mortgage lien prior to that of complainant, and there could be no personal decree against her, she should recover her costs against the complainant, and that beyond this the usual decree of foreclosure should be entered in favor of the complainant, with costs, except that it be so framed as to protect the lien of Polly Ann Mudgett, the prior mortgagee. Complainant appealed.
37 Mich. 87Griffin v. Johnson (1877)
Ejectment. The facts are in the opinion. The statute applicable to the case provides that under a license granted by the Probate Court, upon a petition from an administrator, the latter can mortgage the property of his intestate to pay debts outstanding against the estate (Comp. L., §§ 4625-7).
37 Mich. 93Toll v. Wright (1877)
Trespass quare clausum, removed from justice’s court on a plea of title, and decided against the plaintiff in a finding by the circuit judge without a jury. The facts are in the opinion.
37 Mich. 103Residence Fire Insurance v. Hannawold (1877)
Insurance — Valuation—Vacancy of Premises — Forfeiture of Policy. Application was made for insurance on a house and its contents. The company asked the cost value of the property, and accepted an answer giving an aggregate valuation. Held that it thereby waived a separate valuation of the house. Where a fire insurance policy confines the company’s liability to the actual cash value of the property at the time of. the fire, and the company accepts an aggregate, instead of requiring a detailed valuation, it is presumed to regard itself as sufficiently protected. In an action on a fire insurance policy, the notice attached, to the plea of the general issue referred to the plaintiff’s written application for insurance as a part of the contract of insurance, and alleged that he warranted his answers to the inquiries of the company to be true, and that the company had issued the policy in reliance on his representations. Held, that evidence of his verbal statements as to the value of the property, made at the time of the application, were properly excluded on the ground that the notice referred to the written application and answers. A clause in an insurance policy declared that “if any change should occur affecting the title, condition, or occupancy of the property, whereby the risk will be increased, the same shall immediately be made known to the company,” etc. Held, that in the absence of any condition declaring the vacancy of the premises to be an increase of risk, such an understanding cannot be grounded on this provision. In a suit on an insurance policy, a charge denying the right of recovery if the risk was increased at any time, was heU properly refused as an abstraction not pointing out the matters of increase and not confining the request to the defenses pleaded. In a suit on a fire insurance policy such a defense as that the plaintiff burned his own property must be specially averred, and the burden is on the company to establish it. Clauses of forfeiture ill an insurance policy must be explicit.
37 Mich. 107Hamilton v. Billingsley (1877)
Fraud — Estoppel—Damages. He who claims to have been defrauded must show that he was actually deceived. One who is sued for fraud is estopped from claiming that the plaintiff’s previous knowledge was enough to protect him. B was induced in’ a trade to take two instalments on a bond and mortgage upon which the other parties to the trade-falsely stated that a certain sum was to fall due. In an-action for the fraud, damages were properly allowed him to the amount of the difference between what purported to be,due and what actually was due, with interest. Testimony that H proposed to do business on Sunday, cannot be impeached by showing that his father was a strict observer of the Sabbath.
37 Mich. 111Flint & Pere Marquette Railway Co. v. Weir (1877)
Error to Saginaw. Assumpsit. The facts are in the opinion.
37 Mich. 116Bilz v. Bilz (1877)
 Evidence on Chancery Appeals. All testimony offered in a chancery cause” should be admitted, and if admitted subject to objection, an appeal from the ruling thereon brings up the whole testimony, that the appellate court may pass upon all questions and dispose of the case without sending it back for rehearing.
37 Mich. 118People v. Thompson (1877)
Hiring Incendiaries — Comp. L., § 7557. An information charging the respondent with hiring a certain person named, to burn a certain building, is supported by evidence that he had hired the person named, and another person, jointly.
37 Mich. 120McGoren v. Avery (1877)
Case made after judgment from the Superior Court of Grand Eapids. Assumpsit to recover money paid by mistake and without consideration. The facts are in the opinion.
37 Mich. 123Kaufnan v. Hude (1877)
Case made from Wayne. Assumpsit, the defendant pleading in bar an order made by a court of concurrent jurisdiction in a suit previously brought against the plaintiffs in this, allowing him costs as their garnishee, to an amount equal to the debt which he owed them, and for which this suit is brought.
37 Mich. 124Cook v. Bertram (1877)
New Trial in Ejectment — Comp. L., § 62-M. 'The Michigan statute providing that upon a new trial in ejectment the defendant may show in har of a recovery any matters which, if he were plaintiff, he might show to entitle him to possession (Comp. L., § 6244), applies only where the plaintiff has taken possession hy virtue of his recovery in the former action.
37 Mich. 126Maas v. White (1877)
Assumpsit for damages sustained from the failure of defendant • to fulfill his agreements with plaintiffs. The facts are in the opinion.
37 Mich. 131People ex rel. Hoffman v. Circuit Judge (1877)
New Trial in Ejectment — Comp. L. § 6238, 'The Michigan statute providing for new trials in ejectment (Comp. L. § 6238) applies only where a trial .has been had, and not simply a non-suit. Setting aside a non-suit is discretionary with the court.
37 Mich. 132Cromer v. Platt (1877)
Assumpsit against the endorser of a promissory note. On failure to find the maker, the holders sent to the endorser the following letter: “St. Joseph, Mich., February 4, 1873. Mr. Cromer — Dear Sir: We hold, a note given by Thos. A. Bunbury, dated St. Joseph, July 1st, 1872,-payable seven months after date to your order, for one hundred and fifty dollars with interest at ten per cent.
37 Mich. 139Fitzsimmons v. Chapman (1877)
Trespass on the case for damages arising from the alleged false and fraudulent representations of a party other than the persons benefited. The case was tried before a. jury, who gave damages to the plaintiff, but the court, awarded costs to the defendant, and the plaintiff, excepting thereto, brought up the case on bill of exceptions.
37 Mich. 143Gillett v. Needham (1877)
Case made from St. Joseph. Assumpsit on a' promissory note. The claim was disallowed by the commissioners on an intestate’s estate, and their decision being confirmed by the probate court, an appeal was taken to the circuit, where the court ordered an issue to be made up, and found in favor of the claimant. Judgment was accordingly entered against the appellee, and the cause was brought before the Supreme Court on a case made.
37 Mich. 148Smith v. Fiting (1877)
Appeal from Saginaw. Bill or Foreclosure. The facts are in the opinion.
37 Mich. 152City of Lansing v. Toolan (1877)
Trespass on the case against a municipal corporation for damages from negligence. Plaintiff below obtained judgment on a verdict, and defendant brought up the case on bill of exceptions.
37 Mich. 155Child v. Pierce (1877)
Error to Ingham. Assumpsit. The facts appear iu the opinion.
37 Mich. 158Cowles v. Marble (1877)
Bill to redeem a mortgage in the form of a deed. The case was tried below on pleadings and proofs, and the bill dismissed with costs by the court.
37 Mich. 161Richards v. Fuller (1877)
Assumpsit on a promissory note made by Richards to Warren S. Hale May 6th, 1874, and transferred to defendants in error by endorsement. It was given for part of the purchase price of a lot of logs which Hale himself held under contract from Isaac Stauffer, dated Jan. 5th, 1874, and covering all the cherry, walnut, basswood, white ash and maple timber on all or any of the lands owned by Stauffer in Caledonia township, to be delivered at Caledonia station in lumber.
37 Mich. 164Howe v. Lemon (1877)
Foreclosure, based on a deed absolute with a contract, to reconvey on repayment of advances. The facts are stated, in the opinion.
37 Mich. 166Munch v. Shabel (1877)
Specific Performance of a contract to convey lands. Schmidt, the complainant’s assignor, having a contract right to certain lands, transferred a part of them, Bose Young becoming the holder of his equities therein.
37 Mich. 174Kegel v. Schrenkheisen (1877)
Error to the Superior Court of Detroit. Attachment. The necessary facts are stated in the opinion.
37 Mich. 176Eberstein v. Camp (1877)
Error to Kalamazoo. Replevin. The facts are in the opinion.
37 Mich. 179Hull v. Belknap (1877)
Assumpsit for balance due on a sale, the defense being grounded on a breach of warranty. Plaintiffs below recovered, and defendant brought error.
37 Mich. 184Hanson v. Donkersley (1877)
Assumpsit. The Morgan Iron Company owed Hanson for labor and he consented to extend the time of payment and accepted their note. He afterwards recovered judgment on the note, but as the execution was returned unsatisfied he sued Donkersley as a stockholder under Comp.
37 Mich. 195People ex rel. Chope v. Detroit & Howell Plank Road Co. (1877)
Injunction. The facts are shown in the opinion. The proceeding was by bill in equity in the nature of an information, filed by the prosecuting attorney of the county in which it was instituted, and also signed by the Attorney ■General.
37 Mich. 199Bath v. Caton (1877)
Error to Keweenaw. Trespass guare clausum. The facts are in the opinion.
37 Mich. 205Chicago & Northwestern Railway Co. v. Bayfield (1877)
Trespass on t-he case for damages under Oomp. L., § 2351, for the negligent killing of the plaintiff’s intestate and next of kin. The facts are in the opinion.
37 Mich. 217Breitung v. Lindauer (1877)
Error to Marquette. Assumpsit under Comp. L., § 3858. The facts are in the opinion.
37 Mich. 234Manhard v. Schott (1877)
Error to Marquette. Attachment. The facts are in the opinion.
37 Mich. 236Soper v. Fry (1877)Motion denied
Assignment by Infant — Confession of Judgment does not Bind an Infant Partner. Exceptions to rulings on the admission of evidence can be reviewed on case made as well as on bill of exceptions. An infant cannot in his own name confess judgment. Partners have no implied authority to confess judgment for each other. An infant’s assignment is not void but only voidable, and that only by the infant or some one in his right. Only he who has rights in or to property can lawfully disturb another’s peaceful possession. A judgment confessed by an infant’s partner in the name of the firm is void and will not Support an attachment as against a previous assignee of the goods attached.
37 Mich. 240Cameron v. Merchants' & Manufacturers' Bank (1877)
Assumpsit by the bank against plaintiffs in error as owners and endorsers of two notes pledged without their knowledge by the holder as collateral security for the payment of another note which the bank had discounted for him at the rate of ten per cent, and to which plaintiffs in error were not parties. It was admitted that the bank was a corporation organized under the general banking laws of Michigan, and that it was entitled to recover unless barred by Comp.
37 Mich. 245Campau v. Campau (1877)
Ejectment. The plaintiffs are the heirs of Barnabas Campau, to whom, in common with his brother Joseph, the disputed premises were conveyed in 1845 by their sister Catherine Lafferty. Her deed purported to convey to them all her right, title, etc., in and to lands of which her brother Nicholas died seized, and which she had inherited or become interested in through him.
37 Mich. 248Dubois v. Campau (1877)
 Equitable Belief barred by Laches. The sufficiency of a plea is admitted by replication, and a hearing on the issue thus raised usually ends the case. But- a defendant in a partition suit pleaded adverse possession in bar, on a stipulation that if the. plea was overruled, he might answer. Held, an anomalous stipulation, but in following it the court below treated the hearing as on the sufficiency of the plea, merely, and left the question’ of adverse possession undecided; until this was passed on, however, no court could interfere with the right arising under it. The defendant in ejectment, being the possessor, need not become the moving party, and unless he obtains delay by fraud, is not answerable for disadvantages resulting to plaintiff from any neglect to speed the cause. He is not estopped by such neglect from taking advantage of the statute of limitations against the plaintiff. Courts cannot save perishable testimony if it is not perpetuated. One will not be restrained from relying on a defence simply on the ground that those who could have rebutted it are dead or disqualified from testifiying.
37 Mich. 253Ward v. Ward (1877)
Claim against lístate — Decedent's Statements — Act 155 of 1875. A pledge ceases to be operative when its object is effected, and' the whole beneficial interest in the security pledged then becomes absolute in the equitable owner. The presumption is, in the absence of later evidence, that one intended what his solemn deed naturally imports. One’s conduct, admissions and declarations in his own interest are no more privileged as evidence for his estate after his death than for himself while living; and if the adverse party had not been present or in any way consenting thereto, are inadmissible in defense to a suit by him against the estate. The rule excluding testimony of facts equally within the knowledge of a deceased opponent does not apply where the transaction was between the surviving party on one side and a surviving agent of decedent on the other, and in the presence of other persons but not of the decedent. In a suit against an estate to recover the value of a mortgage which the decedent, by mistake or otherwise, had appropriated and sold without the owner’s consent or ratification, testimony is admissible to show the difference between the amount called for by the mortgage and the sum which the decedent had received for it. The claimant’s right is not limited by the sum asked by another for his property. An exception will not be considered where its ground was not stated nor made reasonably apparent.
37 Mich. 261Ehlers v. Stoeckle (1877)
Hiding Property from, Creditors — Bight to Day in Court. An order finally disposing of one’s property rights in a proceeding to which he is not a party, and in which he has no chance to be heard unless as a witness, is void. Every man is entitled to his day in court before his rights can be finally disposed of; even the legislature cannot divest him of this right. The Michigan statutes (Comp. 1., § 6518; Pub. 1. 1875, Act 193, Sec. 5) contemplate the appointment of a receiver who may directly sue the persons supposed to be covering property for a judgment debtor.
37 Mich. 264Thatcher v. Wardens & Vestrymen of St. Andrew's Church (1877)
Validity of Trust Deed — Delivery—Power of Alienation. The Supreme Court will not on error examine into the sufficiency of the evidence to support the finding of facts in the court below. Delivery of a deed is essential to pass title; its whole object is to indicate the grantor’s intent to give effect to the instrument. The delivery of a deed is not necessarily a transfer of the possession of the instrument to the grantee and an acceptance by him; but it is that act of the grantor, indicated by acts or words or both, whereby his intention to perfect the transaction is shown by a surrender of the instrument to the grantee or to some third person for his use and benefit. Acceptance of a deed maybe after the grantor’s' death where the act of delivery is a continuing one, such as leaving it on deposit to be accepted afterwards if not recalled before. It is sufficient delivery of a deed if the grantor, intending thereby to give it effect, leaves it with the conveyancer to be after-wards delivered; and sufficient acceptance if grantees who knew nothing about it when it was drawn, assent to it after-wards. A trust need not fail for want of express acceptance by the trustee. When a deed of trust gives the trustees power to dispose of the property at their option,the “absolute power of alienation” is not suspended, even if never really exercised. A trust is forever ended upon the execution and delivery by the trustees of a conveyance under the absolute power of alienation. A conveyance under the power of alienation in a trust deed passes a good title to the grantee. If apt words are used, no particular form is needed for the creation of a power of alienation in a deed of trust. Deeds are to be held effectual where their language admits of it under the rules of law applying thereto. In construing deeds words must not be needlessly rejected as of no effect, nor the punctuation be allowed to alter the plain meaning. A deed conveyed certain lands to trustees named in it, and also “all my household goods and personal property,” etc., * * “ to have, hold, use and enjoy the same, and lease, or dispose of the same, or cause the same to he used, and to receive the rents, profits and income thereof, and to use or dispose of the same on trust,” etc., and gave them authority in certain emergencies to temporarily raise money upon the property hy mortgage or otherwise. Held that the power of alienation here given was meant to cover the real as well as the personal property, some of the words being apt if applied to the real estate, and not so if applied to the personalty. The disposition of the fund accumulated under a deed of trust cannot he considered in an action of ejectment, which merely puts in issue the legal title to the property deeded. So long as a title is in trust, the validity of the reversion thereof does not properly come under discussion.
37 Mich. 274Heffron v. Flanigan (1877)
 Priority of Mortgage. Title does not vest till delivery of the deed. The fiction of relation must not be applied to the injury of innocent parties. Delivery of a deed is notice to third parties that until then the grantee has had no such interest in the premises as would enable him to encumber the title to their prejudice. As a rule, if the grantor of lands on taking hack a purchase money mortgage has both conveyances promptly recorded, he does all the law requires of him to protect his rights and will not be ailected by any previous conveyances which, without his knowledge, his grantee, the mortgagor, may have placed on record before obtaining title. A grantee gave back a purchase money mortgage before delivery of the deed. Afterwards, at the time the deed was actually delivered, this grantee mortgaged the premises to a third party in whose presence the delivery was made, and who had no notice of the former mortgage. Meld, that the delivery of the deed in the latter’s presence was notice to him that until then the mortgagor had no title to encumber to his prejudice. The second mortgage was accordingly given precedence of the first.
37 Mich. 279French v. Christy (1877)
Bill to compel the conveyance by defendants to complainant of certain lands which the latter claims to have selected and reserved under a swamp land State road contract, but which the State had patented to defendants’ grantor. The road contracted for was to have been built by July 1, 1867.
37 Mich. 281People ex rel. Dennison v. Circuit Judge (1877)
Mandamus to compel the court below to vacate an order for a new trial in ejectment. The facts are in the opinion.
37 Mich. 286People ex rel. Stinton v. Circuit Judge (1877)
37 Mich. 287People ex rel. Parsons v. Circuit Judge (1877)
Mandamus to vacate an order setting aside a pluries writ of execution. The facts are in the opinion.
37 Mich. 291White v. Smith (1877)
Appeal from Kent. Injunction against building on disputed territory. The facts are in the opinion.
37 Mich. 296City of Marquette v. Cleary (1877)
 Injuries from Improper Construction of Sidewalk. Where the duty to build sidewalks rests on the owner or occupant of the adjacent premises, and the performance of it is in no sense the act of the city, the city cannot be sued for injuries resulting from the plan of constructing a walk; as where a step was left at one end of it.
37 Mich. 299Somerville v. Richards (1877)
False Imprisonment — Physician's Testimony — Error in Allowing Questions must he clearly shown to he Prejudicial — Admission of Evidence for Plaintiff after Defendant rests — Manner of Accused not ■Enough to Justify Arrest. In an action for false imprisonment a physician was asked his opinion of the effect of the arrest upon the plaintiff’s health. It did not appear that he had any information as to what the circumstances, were that attended the arrest. He Id, that the objection to the question, if there was any, was avoided hy a reply limited to the plaintiff’s condition as he had oh-served it before and after the time when the arrest took place. He expressed no opinion upon a hypothetical ease, but only on facts falling under his own observation. One who complains of being prejudiced by the admission of a' mere question, must make a clear showing. The presumption is that the judge’s discretion was fairly exercised. So held where complaint was made that a newspaper article not in proof had been put before the jury by means of questions whose apparent purpose was to ascertain whether the witness had furnished the items of which it was made up; as the article was not given in the record, it does not clearly appear whether too great latitude was allowed or not. The Supreme Court will not review the discretion of the trial court in admitting competent evidence for the plaintiff after the defendant has rested, even though it is not rebutting. The manner and appearance of a person on being accused of crime do not justify his arrest.
37 Mich. 305Mayhue v. Snell (1877)
Receiptor's Possession — Bes Adjudicada. The receiptor’s possession is that of the sheriff. Seizure from the receiptor is seizure from the sheriff. Replevin lies against a sheriff for goods actually held by a receiptor. A sheriff who attempts to sell goods covered by a writ of replevin previously served upon himself or his receiptor, becomes a wrong doer. A sheriff sought to evade a writ of replevin by leaving the goods in the receiptor’s hands while the writ was served on himself, and afterwards selling them. As he was then prevented from delivering them, however, he afterwards, and without farther process, again seized the goods, delivered them, and was again sued in replevin. In the first suit he suffered judgment for acting on void process. In the second the same issue was tried and he recovered. Held, that in the second suit the validity of the process was res adjudicada; that the first judgment could not be collaterally assailed by re-trying that issue, until the errors of the first trial, if there were any, had been corrected by an appellate court; and that in malting the second seizure the sheriff was a trespasser and could confer no right under it.
37 Mich. 308Krone v. Krone (1877)
Error to Huron. Assumpsit. The facts are in the opinion.
37 Mich. 309Cranson v. Smith (1877)
Error to Genesee. Assumpsit. The facts are in the opinion.
37 Mich. 313Stout v. Sawyer (1877)
Mechanic's Lien — Contract to Furnish Water Wheels — Comp, L., § 6789. In Michigan the labor or materials for which a lien is given to mechanics must be furnished for constructing or repairing upon the land against which the lien is to be enforced, and as regards machinery, the mechanic must construct, repair or put it up upon the land. Comp. L., § 6789. Meld not enforceable in favor of parties in another State under a mere contract to furnish machinery, which the purchaser could dispose of as he chose. The contract must relate to, and be performed upon, the land.
37 Mich. 316Perrin v. Kellogg (1877)
Retrospective Statutes — Additional Bonds in Chancery Appeals — Act 13 of 1877. •Statutes can apply to future transactions only, unless they are expressly given effect on previous transactions, or unless some of their terms cannot he met otherwise. Act 13 of 1877 providing (1) that there shall be notice and a hearing of motions for the approval of appeal bonds in chancery cases; (2) that the circuit judge may order an additional bond on proper showing; and (3) that the Supreme Court or the circuit judge shall have power to order an additional bond, does not give the Supreme Court power to interfere in appeals perfected before the act took effect. The second proviso applies to cases in which the appeal is not yet perfected, and the third to cases at a later stage.
37 Mich. 319Jenne v. Marble (1877)
Error to Ingham. Assumpsit. The facts are in the opinion.
37 Mich. 326Pursel v. Armstrong (1877)
 Transfer in Fraud of Judgment Creditors. Judgment creditors aré entitled in aid of execution to a decree in equity avoiding a deed from their debtor to a third person by which his property is withdrawn to provide for himself and his family.
37 Mich. 332Isle Royale Mining Co. v. Hertin (1877)
 Labor done by Mistake, but in Good Faith, upon Another's Froperty. One is not entitled to compensation for labor expended by mistake, though in good faith, upon the property of another who appropriates the benefit of it, when the identity of the original article is not destroyed nor its value greatly increased. So held where cord wood was cut on the lands of another, hauled to a landing and piled, and was then seized and sold by the owner of the land. The test of a general principle is not its operation in an indi- ■ vidual case, but its general working. Good faith does not excuse a trespasser from payment of damages. He must ascertain his rights, and not invade another’s possession, actual or constructive. A willful trespasser who expends his money or labor on the property of another acquires no rights therein, but the owner may reclaim it so long as its identity is not changed by conversion into some new product. It is equitable doctrine that where labor has been, by mistake and in good faith, expended upon another’s property, thereby converting it into something substantially different, and the value of the original article is insignificant as compared with the value of the new production, title passes to the person whose labor has increased its value, and the original owner can recover the original value. Distinguished from Wetherbee v. Green, 22 Mich., 311, in that the identity of the converted property was not substantially changed, nor its value,greatly increased.
37 Mich. 339Pitcher v. Douglas (1877)
Injunction to restrain the collection ■ of rents and the ■sale or other disposition of property.
37 Mich. 342Frederick v. Marquette, Houghton & Ontonagon Railroad (1877)
 Passenger's Ticket as Evidence of His Bights. As between conductor and passenger, the latter’s ticket is conclusive evidence of the extent of his right to travel, and he must produce it when called on as the evidence of his right to the seat he claims. In determining the duties of conductors and the rights of passengers, the methods generally adopted by common carriers to carry on business successfully, must be regarded. Whether an action for damages for breach of contract might not lie for ejecting a passenger who had paid for a ticket to a certain point but had been given one for a shorter distance —Q. But It must not be based on the conductor’s refusal to respect a correct ticket, if he really respects the ticket presented, for the distance it covers.
37 Mich. 348Smalley v. Lighthall (1877)
Error to Huron. Replevin. The facts are in the opinion.
37 Mich. 351People ex rel. Reeder v. Treasurer of Wexford (1877)
Mandamus to Compel Payment by a Public Officer — Interest. Mandamus proceedings against an official, merely as an official, are not affected by a change of incumbency. The relator in mandamus is not usually granted greater relief than is claimed in his application for the writ. In mandamus to compel a county treasurer to pay money the right to which is disputed, interest is not usually allowed in the absence of a statute or contract relation calling for it.
37 Mich. 354Smith v. Dodge (1877)
Replevin before a Justice — Affidavit for Writ — Oral Pleadings — Form of Verdict — Return need not be awarded if Plaintiff has Possession. The affidavit for a writ of replevin alleged that defendant had the property in his possession “unlawfully from the possession” of the plaintiff. Meld, that the omission of the word “detained” after “unlawfully” was not a fatal defect. Oral pleadings are admissible in replevin before a justice. Where the pleadings before a justice are oral, only matters of substance are regarded, and judgment should not be reversed for objections not made at the trial. Return need not be awarded in replevin where the property has been delivered under the writ to the plaintiff Unless the facts in a replevin suit before a justice require a special finding, a verdict that “this jury finds fór the plaintiff” is sufficient, and judgment must be entered on it.
37 Mich. 357Hobbs v. Solis (1877)
Error to Superior Court of Detroit. Assumpsit. The facts are in the opinion.
37 Mich. 360Mabley v. Kittleberger (1877)
Error to Wayne. Trespass on the case for damages. The facts are in the opinion.
37 Mich. 363King v. Carpenter (1877)
Stipulated Facts on Appeal — Enforcement of Title — Lost Leeds Improperly Eecorded — Comp. L., § 5072. The jurisdiction of the Supreme Court in equity is confined to rehearing the case upon the record below; to pass on new facts would be to exercise original and not appellate jurisdiction, and they cannot be introduced even by stipulation. Ejectment is the only proper remedy where the holder of a legal title seeks to enforce it against one in possession claiming under an invalid title. A strictly legal right to property cannot be enforced at law against a party out of possession. In equity, one can enforce an equitable right to property whether he is in possession or not. Comp. L., § 5072, was meant to enlarge the powers of equity in regard to quieting title, by allowing a decree in favor of a party in possession without the necessity of repeated trials at law. Under the recording laws of Michigan any record title is presumptively better than a title defective of record, and clouds it. ■ If a transfer of title is absolute and unconditional, it is irnma- ■ terial as against claimants who are not bona fide purchasers, whether it is strictly legal or only equitable. A deed of Michigan land, executed and delivered in another state in 1839 and since the amendment that year of the recording laws of Michigan, was held to have conveyed the grantor’s title, though not witnessed nor regularly acknowledged so that its actual record was not valid as a lawful registry. The loss of a deed was after the lapse of nearly forty years considered sufficiently proved by testimony of a second grantee that he believed it to have been among his papers which had been casually destroyed; this grantee being an expert lawyer who had inquired into the title when he purchased, and had presumably retained his title papers.
37 Mich. 370Chapman v. Craig (1877)
 Residuary Legatee can Defend Possession without Proving Payment of Bequests. The grantee of a residuary legatee may defend his title without showing the payment of the antecedent bequests. A residuary legatee of lands holds title subject to the antecedent legacies, and unless the land is taken by the executors for the purposes of administration, may have and defend possession from the time the will is probated. Evidence of the payment of legacies is not confined to the records in the probate court as the best evidence; nor is it usually found there' until the executor’s account is filed. Where the finding was general and did not show that it did not wholly depend upon the wrongful exclusion of certain evidence, the judgment was reversed, although there was other evidence that might have tended to support it.
37 Mich. 372People ex rel. Heath v. Circuit Judge (1877)
Mandamus to compel a court to resume control of a cause after ordering it to be transferred. The facts are in the opinion.
37 Mich. 377People ex rel. Lyon v. Circuit Judge (1877)
Supreme Court — Judgment on Equal Division is Conclusive. An affirmance of judgment by an equal division of tbe final tribunal is as conclusive as any other judgment. When a case is remanded after judgment to tbe trial court without directions, the latter can exercise such powers in respect to tbe execution of judgment as it would have if judgment had been entered by itself; and it has no further discretion.
37 Mich. 380Gibson v. Pelkie (1877)
Error to Mason. Assumpsit. The facts are shown in the opinion.
37 Mich. 382Dorsey v. People (1877)
Detroit Souse of Correction — Comp. L., § 8155. Ho court outside of Wayne county can sentence persons convicted of State prison offenses to tiie Detroit House of Correction until the State prison inspectors have contracted for their confinement and maintenance therein. It is discretionary with the State prison inspectors whether they shall contract with the city of Detroit for the confinement and maintenance of convicts in the Detroit House of Correction as authorized by Comp. L., § 8155.
37 Mich. 384Wesley v. People (1877)
Detroit House of Correction — Comp. L., §§ 8155, 8160. The recorder’s court of Detroit can sentence to the House of Correction convicts that are punishable by imprisonment in the State Prison or in the county jail. Comp. L., § 8160. The Detroit House of Correction is the place of imprisonment for county jail offenses committed in Wayne county, and no such contract is necessary as is required by Comp. L., § 8155 before offenders from other counties can be confined there.
37 Mich. 385Orr v. Keyes (1877)
Trover brought by defendant in error for the conversion of goods belonging to her, but seized by Orr under a claim of right based on the following special agreement: “This memorandum made between Edward Orr, of Detroit, Michigan, and Nellie S. Keyes, of Girard, Michigan, witnesseth. Whereas, George A'.
37 Mich. 388McGregor v. Board of Supervisors (1877)
Certiorari. The facts are in the opinion.
37 Mich. 391Albany & Boston Mining Co. v. Auditor General (1877)
 Injunction to Restrain Tax Sale. Injunction will not lie to perpetually restrain sales for delinquent taxes where no inequality or' injustice is pretended, and relief is asked for mere legal irregularities such as that the assessment roll was not ready for review on the day prescribed hy statute. Equity will not restrain the collection of a tax where it does not appear that the property was exempt from taxation, or that the levy was without legal power, or that the persons imposing it were unauthorized, or that they proceeded fraudulently.
37 Mich. 402Fredenburg v. Turner (1877)
Promise to pay in Labor and Material — Interest—Costs. A promise to pay in sawing and lumber will be apportioned equally if the parties cannot agree and neither has the right to fix the proportion. Where a promise is made to pay in labor and material in annual payments, interest does not begin to run until the year is completed in which any given payment is to be made, and the debtor is in default. Part payment of a debt was to be made in so much sawing annually. Meld, that the payee was in default if he did not produce his lumber to be sawed during the year, and that he could not recover. A decree in favor of complainant being modified in favor of appellant, costs of the court below were awarded to complainant, but appellant recovered costs of the Supreme Court to be offset against complainant’s costs.
37 Mich. 407Peters v. Gallagher (1877)
'Error to Manistee. Assumpsit. The facts are in the opinion.
37 Mich. 412Fletcher v. Carpenter (1877)
Appeal from Ingham. Foreclosure. The facts are in the opinion.
37 Mich. 415Page v. Wells (1877)
Error to Ionia. Assumpsit. The facts are in the opinion.
37 Mich. 422Hogelskamp v. Weeks (1877)
Ejectment, plaintiff claiming title through a government patent and various subsequent conveyances. The patentee had conveyed by warranty deed signed and sealed in the State of New York, before two subscribing witnesses, March 4, 1837, and recorded May 30, 1837, in Allegan county. Upon this deed was endorsed the certificate of acknowledgment of a commissioner of deeds, but the clerk’s certificate attached thereto was not authenticated by a seal.
37 Mich. 429Stall v. Diamond (1877)
Appeal from Assessment of Damages — Mandamus to Vacate Order— Comp. L., § 6431. An appeal lies from a justice of the peace on judgment of non-suit or on any final judgment on issue joined. Comp. L., §■ 5431. It lies, then, when a writ of replevin has heen dismissed for defects in the affidavit for the writ, and judgment has been rendered for damages and costs on waiver of a return. Dismissal of a writ of replevin amounts to judgment of non-suit. On an assessment of damages in replevin there, is always an issue joined, whether expressed in words or not. Error lies rather than mandamus where the error is disclosed on the record, as where the grounds for dismissing an appeal are stated in the order.
37 Mich. 430Burrows v. Keays (1877)
 Trover for Notes detained after being Assigtied under a Canadian Insolvent Law. One who had assigned for the benefit of creditors retained certain promissory notes which the assignment covered, and the assignee brought trover, setting forth these facts but describing the notes only as “ divers promissory notes against sundry persons and in various amounts of great value, to-wit: of the value of four thousand dollars.” On special demurrer for uncertainty this is held to be sufficient. A defendant in trover was convicted on his own admissions of converting certain notes. SeW that he could not afterwards object that the verdict was unwarranted on the ground that the notes may have been worthless; if that was the fact he should have shown it by competent testimony. A voluntary assignment of all one’s estate and effects is sufficient to pass title to the assignee and enable him to enforce it as against the assignor and wrong-doers; and as to them the fact that the assignment was made under a foreign insolvent act makes no difference.
37 Mich. 436Eggeman v. Eggeman (1877)
 Priority of Mortgage. The parties to a mortgage agreed that a new one should he substituted with a clear title. Upoii the same day on which this was done, and without the knowledge of the mortgagees, another mortgage was given to the mortgager’s father-in-law, who had advanced considerable money to the mortgager’s wife without asking repayment. The testimony indicated that the mortgage was made to him without his participation, and with the fraudulent purpose of giving it priority. Meld, that it must' be postponed to the other mortgage, since even if he were an honest mortgagee, his mortgage, if made first, was 011 premises already encumbered, and he had no equities which would make it anything but a second mortgage; and if the original mortgage was exchanged under a false pretense that the title was to be cleared, he was in no position to object to the restoration of the old security in behalf of the original mortgagees.
37 Mich. 440Martin v. O'Conner (1877)
Case made from Kent. Ejectment. The facts are in the opinion.
37 Mich. 443Tower v. Divine (1877)
Appeal from Ionia. Foreclosure. The facts are in the opinion.
37 Mich. 448Ortman v. Shaw (1877)
Error-to Saginaw. Trover. The facts are .in the opinion.
37 Mich. 452Biddle v. Wendell ex rel. Richards (1877)
Action Barred on Administrator's Bond — New Trial. An administrator’s bond has no independent force apart from the administration proceedings, and if a liability is barred which it was meant to secure, action on the bond to enforce that liability is barred also. Where the probate court has neglected to decree payment of debts and distribution of assets four years and a half after issuing letters of administration, in accordance with Comp-L., §§ 4457-8, the right of action on the administrator’s bond begins to run at that time, and in due course is barred by the statute of limitations. Where a case is tried without a jury and comes up without a finding of facts and is reversed upon a point analogous to a. request to charge, a new trial must be ordered.
37 Mich. 455People v. Barkelow (1877)
Exceptions before judgment from Oakland. Criminal information for Conspiracy to cheat and. defraud. The facts are sufficiently shown in the opinion.
37 Mich. 459Freeman v. Ellison (1877)
Error to Marquette. Assumpsit. The facts are in the opinion.
37 Mich. 464Wicks v. Ross (1877)
Error to Wayne. Trespass on the case. The facts are in the opinion.
37 Mich. 468Aldrich v. Smith (1877)
 Alteration oj Promissory Note. A note was indorsed by the payee and by another person. £The-maker, in good faith, but without the knowledge or consent of the indorsers, inserted the name of the secondjindorser as a payee in the body of the note, and discounted it. HeW that the alteration released both indorsers.
37 Mich. 472Comfort v. Stockbridge (1877)Motion denied
Certiorari. Motion to dismiss writ.
37 Mich. 473People ex rel. Warner v. Randall (1877)
Mandamus to Proceed on an Order of Reference in Foreclosure — Act 96 of 1877. Mandamus lies to compel a circuit court commissioner to proceed' on an order of reference tendered to him for execution in a foreclosure case. A reference to ascertain the amount due under a mortgage, or any other interlocutory reference in a case not instituted for an accounting, is not within Act 96 of 1877 requiring references for accounting in chancery causes to he made to the circuit court commissioner who has been designated as injunction master.
37 Mich. 474People ex rel. Christopher v. Circuit Judge (1877)
Mandamus to vacate an order dismissing an appeal. The facts are shown in the opinion.
37 Mich. 476Fredenburg v. Lyon Lake M. E. Church (1877)
Assumpsit by the church as a corporation against its treasurer, Eredenburg, to recover moneys which it was alleged he had received and not accounted for. He' pleaded set-off and gave notice that he would show that the church never had a corporate existence, and could not sue as a corporation. Plaintiff recovered and defendant brought, error.
37 Mich. 479Locke v. Leonard Silk Co. (1877)
Justices' Courts — Continuances—Endorsement for Collection — Evidence of Incorporation. It is not the practice in justices’ courts for the parties to be ready to join issue and proceed at once to trial on the return day of the summons. The showing for a continuance in a justices’ court need not be as complete upon the return day of summons as would be required later in the case. It is error for a justice to refuse an adjournment on a return day of summons upon a sworn showing that defendant is too unwell to attend to business or leave his house. Endorsement for collection does not transfer title to the note and its proceeds. The fact of the corporate existence of a plaintiff company may be found from the testimony of a witness that he could swear, and did swear, from information derived from plaintiffs in doing business for them, and from an examination of what purported to be their articles of incorporation, that it was an incorporated company under the laws of another State.
37 Mich. 481Barrows v. Cushway (1877)
Error- to Mason. Action on a 'bond brought by plaintiffs in error as co-partners, against Guskway as principal and Gardner as surety for the faithful performance of the following contract: “Office of Thomas Barrows & Oo., Chicago, 111., Oct. 11, 1873. In consideration of Thomas Barrows & Oo. making consignment of Victor sewing machines to me, in such quantities and at such times as they may elect,' to be sold on their account at the regular retail prices.
37 Mich. 484Hurd v. Brown (1877)
Replevin. The facts are in the opinion. The court below instructed the jury that the legal effect of the instrument recited in the opinion was that of a security simply, and being a mortgage or mere security, the plaintiff could not recover in replevin for the goods it covered unless he had put it on record, or the sheriff knew of it.
37 Mich. 487Price v. Haynes (1877)
Case made from Kent. Replevin for goods seized by the defendant as sheriff. The goods were covered by an assignment of which the granting and descriptive parts are recited in the opinion. The court below tried the ease without a jury, and gave judgment for plaintiff for six cents damages and costs.
37 Mich. 490Stroh v. Hinchman (1877)
Error to Superior Court of Detroit. Assumpsit. The facts are in the opinion.
37 Mich. 500Snell v. Gregory (1877)
Error to Huron. Assumpsit. The facts are in the opinion.
37 Mich. 502Michael v. Tuttle (1877)
Error to Lapeer. Assumpsit. The facts are in the opinion.
37 Mich. 504Wells v. Hollenbeck (1877)
 Trespass as between Co-tenants. One cannot bring trespass against a co-tenant for a partial injury to the common property. Under an arrangement for raising a single crop on shares, the possession of the premises is held by the owner of the land, either alone, or in common with the party who sowed the seed.
37 Mich. 506Overall v. Bezeau (1877)
Error to Mackinac. Assumpsit. The facts are in the opinion.
37 Mich. 509Sherman v. Palmer (1877)
Error to "Wayne. Assumpsit. Action on a judgment. The facts are in the opinion.
37 Mich. 512Buchoz v. Pray (1877)
Oasis when Both Sides are in Error — Mandamus. Mandamus lies to compel the commissioners on an estate to return evidence into the probate court where the law requires it. Costs on mandamus to a tribunal usually stand against the party benefited by its action. ' The commissioners on an estate refused a claimant a finding to-which he was entitled, by which the evidence would be returned into the probate court, and also disallowed his claim. On appeal, the circuit court set aside the disallowance, but erroneously allowed the claim contingently, and the Supreme Court reversed its judgment. Meld, that as the original error was not the claimant’s and as the responsibility for subsequent errors was about equal, no costs would be allowed to either party.
37 Mich. 515Byrnes v. People (1877)
Error to Superior Court of Grand Rapids. Burclary. Criminal information under Comp. L., § 7563. The facts are in the opinion.
37 Mich. 518Lewis v. People (1877)
Error to Hillsdale. Seduction. The facts are in the opinion.
37 Mich. 523Van Alstine v. People (1877)
Error to Lenawee. Complaint for violation of village ordinance against fast driving. The facts are in the opinion.
37 Mich. 526Scotten v. Sutter (1877)
Assumpsit on common and special counts, by Sutter ■ Brothers, cigar manufacturers, who claimed that Scotten, Lovett & Co. had bargained with them for 10,000 “Banger” cigars at $25 per thousand, and 5000 “Hiawathas” at $50 per thousand, part of which they afterwards refused to accept and pay for.
37 Mich. 533Detroit & Milwaukee Railroad v. Brown (1877)
Notice of Occupancy — Injunction to Restrain Proceedings in Ejectment. Occupancy of premises by a railroad in course of construction is constructive notice of the company’s rights therein. A railroad company contracted for certain lands, and under the conditions of the contract proceeded to lay its track across . them, receiving at length a deed from the only owner of whose rights it had notice. Meanwhile the same land had been set oif by deed of partition to a party who held some unrecorded claim to an undivided interest in the premises, and this party afterwards quit-claimed the land by a deed referring to the company’s occupancy. Held that an injunction would lie to restrain proceedings in ejectment brought against the company by the holder of the quit-claim.
37 Mich. 535Haifley v. Haynes (1877)
Error to Kent. Replevin. The facts are in the opinion.
37 Mich. 539McAuliffe v. Mann (1877)
Error to Saginaw. Replevin. The facts are in the opinion.
37 Mich. 542People ex rel. Meister v. Anshei Chesed Hebrew Congregation (1877)
Mandamus. The facts are sufficiently shown in the opinion.
37 Mich. 544Cole v. People (1877)
Criminal Information for breaking and entering in tlie night time a store not connected with a dwelling, with intent to steal. The facts are in the opinion.
37 Mich. 549Smith v. Rich (1877)
Error to Ionia. Trespass. The facts sufficiently appear in the opinion.
37 Mich. 554Marquette, Houghton & Ontonagon Railroad v. Harlow (1877)
Error to Marquette. Assumpsit against the railroad company for use and occupation of land. The facts are in the opinion.
37 Mich. 557Marquette, Houghton & Ontonagon Railroad v. Harlow (1877)
37 Mich. 558City of Detroit v. Detroit City Railway Co. (1877)
Renewal of Corporate Privileges — Acceptance of Charter Conditions. Where the rights granted by a municipality to a corporation have lapsed, the municipality can impose whatever conditions it pleases upon a renewal of them. Where a corporation has no right to act except under the conditions of an ordinance granting permission, its action implies its acceptance of the conditions in full. A municipal ordinance allowed a street railway company to double its track throughout a certain street, but stipulated that it should thereafter bear all the expense of repaving so much of the street as was occupied by its tracks, and should relay its tracks in the middle of the street. Held that the ordinance applied to the whole street, and that if the company availed itself of the permission in part, it accepted the conditions in full, and lost the benefit of former exemptions or privileges that were inconsistent with it.
37 Mich. 563Randall v. Randall (1877)
 'Contract Between Husband and Wife based upon her Relinquishment of Support after Voluntary Separation. Findings are presumed to be warranted by evidence where the record does not affirmatively show that the evidence is all returned. A husband and wife can contract with each other when the contract is not precluded by public policy. It is not the policy of the law to favor the separation of husband and wife with or without divorce. .A contract between husband and wife will not be sustained when likely to favor a separation that has not yet taken place. "When a husband and wife have fully decided to separate, a contract between them that does not spring from fraud or coercion, and contemplates a suitable provision for the wife and children by an equitable division of the property, is maintainable. In an action between a husband and wife on a contract between them, equity will, whenever needful, give effect to provisions in behalf of the wife by adjudging the husband to be her trustee and requiring him to account accordingly. In the enforcement of a wife’s contracts with her husband in regard to her separate estate, it is not necessary in Michigan that she be represented by a trustee. A wife’s release of her dower and homestead interests and her undertaking to support herself, are a valid consideration for a deed from her husband to herself. It is a legal presumption that a wife’s services and the comfort of her society are fully equivalent to any obligations which, the law imposes on her husband because of the marital relation. A wife’s obligation to render family services is co-extensive with her husband’s to support her in the family. A husband’s obligation to support his wife apart from him can only arise from his turning her out of doors or being guilty of such misconduct as would justify her in leaving him. The nominal consideration in a deed from a husband to his wife' was $1,000; the actual consideration was her relinquishment of her right to support. Held, that in the absence of any showing that she was entitled to support apart from him,, this meant support within the family, which is presumed to be compensated by the wife’s services and society, and cannot be accurately estimated in money, and therefore that the nominal consideration is in the nature of stipulated damages,, and is conclusive in an action for a breach of the covenants of the deed.
37 Mich. 575Place v. Brown (1877)
Appeal from. Van Burén. Bill to rescind contract. The facts are in the opinion.
37 Mich. 579Pettibone v. Smith (1877)
 Diverting a Water-course. It is not unlawful to change the course of a stream within the limits of one’s own land, if the stream is returned to its original channel before leaving the land, and its flow is not materially diminished. In an action for diminishing the flow of a stream by diverting its course, the defendant claimed that the diminution was due to a succession of dry seasons. One of his witnesses testified to having known the stream for many years, and lived near it before its course was changed, and to having examined it the preceding fall. Held that he could ask this witness how the flow at that time compared with what it was when he lived there: also, that he could ask a supervisor of the township what effect such seasons as the last four or five would have on such a stream. It is error to submit to a jury a question based on a cause of action not counted on: as where action was brought for diverting a stream of water, and the question was whether defendant had not diminished its flow by using it for his own farming purposes.
37 Mich. 583Curtenius v. Hoyt (1877)
Appeal from Kalamazoo. Injunction. The facts are in the opinion.
37 Mich. 588Rowley v. Grover (1877)
 Bes Adjudicata. Aa adjudication by a bankrupt court in a certain case, that an attachment was a valid lien on such property as was actually levied upon more than four months before the bankruptcy proceedings were bégun, does not fix the identity of the property attached, and in itself is therefore incompetent as evidence to determine the validity of specific attachments.
37 Mich. 590Hall v. Parker (1877)
Error to Calhoun. Assumpsit on bonds for costs. The facts are in the ■opinion.
37 Mich. 595Loomis v. Smith (1877)
Appeal from Calhoun. Bill in aid or Execution. The facts are in the ■opinion.
37 Mich. 596Perrett v. Yarsdorfer (1877)
 The Burden of proving Fraud as a Defense is on the Mortgager. The burden of proving fraud alleged as a defense to a mortgage-is on the mortgager. Where, in order to save costs, a mortgage was released as fosóme land already encumbered to more than its value and? ■ under foreclosure, it can hardly he said that the security of those who claimed subrogation was decreased.
37 Mich. 598Fish v. Adams (1877)
Memoranda in Evidence — Application of Eatjments. A party wlio had sold and delivered wheat to another at the latter’s warehouse, testified that account was kept of the wheat as delivered by means of slips of paper tacked on the spout of the hopper and by entries which he made on a page of his memorandum book; that after delivery of the last load, the purchaser’s warehouse clerk called off the amounts from the slips of paper, and he took them down on the opposite page of his memorandum; and that he and the clerk then compared the two series of entries and found that they agreed, and the clerk receipted for the amount. Held, that such a memorandum could be used in evidence as a contemporaneous record, to the correctness of which both parties assented when made. A payment made on undisputed items cannot be construed as applying to a disputed item in the same bill so as to prevent a recovery. Where a dispute concerned only one item in a sale upon which a payment for other items had been made - exceeding the amount in dispute, a concession by plaintiff’s counsel that the evidence might be confined to the item in question will not authorize the court to ignore the rest of the bill of particulars and charge the jury that no recovery could be had.
37 Mich. 603Hamilton v. Hamilton (1877)
Appeal from St. Joseph. Divorce. The facts are in the opinion.
37 Mich. 609Hartford Fire Ins. v. Davenport (1877)
Insurance — Forfeiture—Parties to action on Policy. Ail insurance policy contained a clause of forfeiture, for vacancy of the premises. The applicant, before taking it, told the insurance agent that he expected to leave his house vacant a year or more, and was informed it would make no difference. During the vacancy the place was burned. Held that the company was not estopped from relying on the clause of forfeiture. The conduct of an insurer, knowing the facts, may be such as to estop him from insisting on the conditions of a policy, or indicate a waiver of them, when it is inconsistent with any intent to rely on them. The acceptance of an insurance policy concludes the bargain with the insurer and excludes any parol promises for the future inconsistent with it. A parol variance from a contract bears no resemblance to a waiver of a condition after it has become binding on the parties. Persons named in an insurance policy as payees to the extent of a partial interest only, such as mortgagees of part of the property insured, are not thereby entitled to sue on the policy. There can be no splitting of causes of action on a single insurance policy. Whoever sues must be able to enforce the whole of it. The person to whom and for whose benefit an insurance policy is issued and in whose name it stands, is its legal owner. An insurance company might be protected in paying to those who are designated as payees in a policy, being mortgagees of part of the property insured, on the ground that they are equitable appointees, but they cannot be treated as trustees for the benefit of the insured.