Volume 38 — Michigan Reports

<p>Ercmdnlent Representations — Conditional Relief — Interest Tinder Decree.</p> <p>Fraud lies in a representation made with the knowledge that it is received in a sense that makes it deceptive.</p> <p>Equity takes cognizance o£ cases in which a party is deceived as to material things by means well fitted to cause the deception, and which the party using them had good reason to know actually caused it.</p> <p>Parol misrepresentations are not so merged in written ones as to be , excluded from evidence in an action for fraud.</p> <p>Pacts on which defendants propose to rely should be set up in the answer.</p> <p>Where complainants have acquiesced in a decree from which defendants have appealed, the Supreme Court on affirming it cannot enlarge the relief granted them.</p> <p>A decree ordering a reference to ascertain amounts due defendant and granting relief on condition of their repayment, should fix the time within which repayment is to be made after confirmation of the report on the reference; and farther provide that in case of default the bill be dismissed.</p> <p>Where a report on an order of reference must be confirmed before a decree can be carried into effect, interest runs from the date of confirmation.</p> <p>Where relief is conditioned on repayment of moneys, and complainants do not make default, they recover costs of both courts, which can be held back from the amounts ascertained to be payable; if they do make default, defendants recover the costs and have execution for the collection.</p>

<p>Motion to dismiss writ of error.</p>

Libel. Reilly sued Scripps, who was the principal proprietor of a newspaper called The Evening News, for publishing therein a scurrilous article purporting to give the substance of a bill of complaint filed against a third party and seriously implicating Reilly. He recovered a verdict of $4,500 damages, but judgment was reversed by the Supreme Court (Scripps v. Reilly, 35 Mich., 371) and a new trial ordered.

Injunction to prevent the removal of machinery claimed as fixtures 'subject to a mortgage. • The facts are in the opinion.

<p>Administrator’a Inability — Survivor Entitled to Partnership Assets.</p> <p>A surviving partner is entitled to use the real estate of the partnership as firm assets so far as it is needed to settle the affairs of the firm, and decedent’s heirs hold the legal estate only as trustees for the equitable purposes of the firm.</p> <p>An administrator cannot be held liable for not receiving and accounting for funds arising from the sale of his intestate’s partnership interest in real estate, when the whole • property was needed to satisfy the debts of the firm, and the sale was made to the surviving partner in order to transfer to him the legal title to be used in settling the business.</p>

<p>Appeal from Washtenaw, the case having been transferred from Keweenaw.</p> <p>Injunction. The writ was denied and complainant appealed. The facts are in the opinion.</p>

<p>Error to Marquette.</p> <p>Assumpsit. The facts are in the opinion.</p>

<p>Railroad in the Public Street — Damages to Abutting Owner not Owning Soil in the Street.</p> <p>A street railway track may be lawfully authorized in a city street without compensating adjacent owners. But a railroad cannot.</p> <p>Where a railroad has been built in a city street without compensating such abutting owners as own the soil of the street, these owners have a right of action for any consequent injury to their freehold, such as injury to its market and rental value, and annoyances to business or family occupation.</p> <p>The general principles on which to assess the damages resulting to a freehold from the operation of a railroad on the adjacent highway, arc the same as if no highway had previously existed; and its existence would only be a c..cumstanee tending to diminish the recovery.</p> <p>An abutting owner who does not own the soil in the street cannot recover for any injury to his freehold resulting from the presence of a railroad track in the street, but only for such damages as he can prove arising from such misconduct of the company as constitutes a nuisance, such as leaving cars standing for an unreasonable time in front of his premises, unnecessary noises, and running trains at unwarrantable speed. In so far as the proper operation of the road diminishes the value of his estate it is damnum absque injuria and such decrease in value cannot be an element in the computation of his damages.</p> <p>That which is permitted by competent authority is not a nuisance. A deed of land lying east of a certain street and explicitly described as bounded by the east line of the street conveys no title to the soil in the street.</p>

<p> Revivor of Partition Proceedings. </p> <p>Parties purchasing titles under judicial sales get only that which can be lawfully sold.</p> <p>When partition proceedings are directed against several distinct parcels of land, each is subject to partition by itself.</p> <p>A decree of partition cannot be opened to change results without also setting aside the titles obtained under it.</p> <p>Parties cannot claim under a decree of partition and at the same time seek to avoid or open it.</p> <p>Ejectment for distinct parcels of land must be brought against each separate holding.</p> <p>Where the interests of complainants are several and not joint they must be severally enforced.</p> <p>Where a bill for partition is held to make out no case for relief, the Supreme Court will not consider questions of title involved in it.</p> <p>Where the grantees of partitioned hold separate and undivided interests and the partition proceedings were not defective as to the parties, they cannot have the proceedings revived for the purpose of barring of their rights persons who had not been made parties, so as to prevent them from asserting their legal rights by bringing ejectment.</p>

<p>Appeal from Grand Traverse.</p> <p>Injunction to restrain a private nuisance. Defendant appeals. The facts are in the opinion.</p>

<p> Indemnity Bond to Secure Future Advances. </p> <p>A joint and several bond under seal to refund at a given time future advances expressed to be for the benefit of one of the obligors, is void on its face as against the other for want of consideration,</p> <p>An extension of credit will uphold a contract óf suretyship.</p> <p>The payment of money by a surety for his principal’s benefit raises an implied promise against the principal to refund on demand, and giving credit for it is equivalent to an extension of credit.</p> <p>A creditor is not precluded from recovering against his debtor’s surety if he does not know of any confidential relation between the two and has no reason to believe the debtor was guilty of fraud or improper concealment as against the surety.</p> <p>The rule that a party cannot testify to matters equally within the knowledge of a deceased opponent does not apply when the action is against a surety on the decedent’s bond.</p> <p>Where the identity of an official bond was fully made out by a certified copy, and it was shown to be the only bond executed between the parties, it was considered sufficiently established as a basis of liability on an indemnity bond based on it.</p> <p>A judgment for the United States on an official bond is prima facie evidence of liability on a bond of indemnity given to the surety; but as a treasury balance establishes such liability if not objected to (Kev. Stat. U. S., Sec. 886) the introduction of the judgment is probably superfluous.</p> <p>In a suit on an indemnity bond, evidence may be given of interviews between the parties thereto concerning their respective interests, whether before or after its date.</p> <p>In an action on an indemnity bond that does not fully describe the bond secured, it is no variance that the latter contains the name of a surety not mentioned in the former.</p>

<p>Breach of Warranty — Constructive Eviction.</p> <p>A declaration in covenant for breach of warranty alleged that by due process of -law the plaintiff had been ejected bv a person lawfully entitled to the premises. Held unsupported by evidence that he had recovered a verdict in ejectment fixing the value of the premises and improvements, and had elected to abandon the premises and taken judgment for their value.</p>

<p> Fixtures brought within a Mortgage, </p> <p>A mortgage included with the real estate the manufacturing establishment and buildings for the purpose to be erected thereon. The lessees of the factory, after putting in machinery, purchased the reversion of the land on which it stood, subject to the mortgage. Held that they united the title to the realty and fixtures in one person and the fixtures became subject to the mortgage.</p>

<p> Costs against the State. </p> <p>The State is not liable for costs in penal suits brought by supervisors for obstructing highways.</p>

<p>A person for whose sole benefit an undivided interest in fee is held by another in trust absolute appearing on the conveyance is a freeholder. — Per Curiam.</p>

Bill to vacate a deed and mortgage and compel the release of certain lands. Complainants appealed. The facts are in the opinion.

<p>Construction of a Paving Contract — Contracts ultra vires.</p> <p>Where an offer was made to lay paving specified in an official advertisement, and a contract resulted authorizing the municipality to withhold enough to pay a certain royalty upon the pavement used, the advertisement, contract and previous correspondence showing what the parties understood the amount to bo withheld would be, were held admissible in an action on the contract.</p> <p>The charter of Detroit requires that proposals for public work shall be advertised for, and the contract let to the lowest bidder. I-Ield that if the construction of the contract were questioned, the advertisement and bid would be admissible in evidence.'</p> <p>Where a city charter forbids the execution of public works except under contract with the iowest bidder, there can be no recovery as upon an implied contract for work done for the city’s benefit but not actually contracted for.</p> <p>A promise will not be implied as against a municipal corporation where it can not contract expressly.</p>

<p>Murder — Evidence of Married Persons against each other as to Crimes Committed after Separation — Res Gestee — Reasonable Doubt — New Trial — Complicity.</p> <p>A woman was on trial for a murder committed in an attack by herself and others upon her husband and some associates. The husband and wife had been living apart in great hostility, and divorce proceedings were pending. Meld that the husband could testify to the facts of the murder; they had not come to his knowledge in the confidence of the marriage relation.</p> <p>Evidence cannot be excluded for proving a distinct offense as well as the one on trial.</p> <p>Three persons were attacked at once. One was killed outright, another was pursued, and all were fired at. The whole transaction lasted about two minutes. Meld that in a trial for the murder it was competent to give evidence of the whole transaction as an entirety, including what happened after the killing as well as before.</p> <p>Where there is a plain conflict of testimony and one side or the other must be believed without qualification, there is no room for a “reasonable doubt” and an error in defining it to the jury is immaterial.</p> <p>New trial will not be granted for wrong instruction to the jury upon an abstract point not called for by the case and wholly ineffective.</p> <p>Going armed and with a hostile purpose in the company of others and engaging with apparent unity of feeling and action in a homicidal affray, tends to show complicity with the rest.</p>

<p>Error to Kent.</p> <p>Assumpsit. The facts are in the opinion.</p>

<p>Error to Kalamazoo.</p> <p>Assumpsit on a covenant of warranty. The facts are in the opinion.</p>

Trover against the sheriff for conversion by means of an unlawful seizure. Defendant below brings error. The facts are in the opinion.

<p>Application for leave to file an information in the nature of a quo warranto.</p>

<p>Larceny — Intent Negatived by Drunkenness.</p> <p>Larceny involves a felonious intent, and if one who takes property is too drunk to have any intent, he is not guilty o£ it.</p> <p>There is a tendency to prove one guilty o£ larceny in evidence that he was found with another’s money; that he had a chance to steal it, and that the owner at once accused him of doing so; that he lied about the manner in which he obtained it; that when accused he claimed it as his own, but afterwards admitted it to be the other man’s, and said that the latter had intrusted it with him for safety; and that he had been seen acting as if trying to pick the other’s pocket.</p>

<p>Notice to produce Originals — Agency.</p> <p>Evidence of the contents of a letter sent to the opposing party or his agent cannot be given unless notice has been served upon him to produce it.</p> <p>An agent to make an offer is also agent to receive the reply.</p> <p>One who relies upon a special contract must make at least a prima facie showing that the minds of the parties met.</p>

<p>Appeal from Eaton.</p> <p>Bill to correct and foreclose a mortgage. Complainant appealed. The facts are in the opinion.</p>

<p>Appeal from Bay.</p> <p>Bill for partnership accounting. Defendant appealed.</p>

<p> Deputation of Authority to Serve Simmons. </p> <p>In endorsing upon a summons a deputation of authority to serve it, the justice need not certify that the person authorized is of age and not interested in the suit. It is not presumed that he selects an incompetent person,</p>

<p>Homestead — Husband and Wife as Tenants in Common.</p> <p>A homestead can be claimed in lands held in joint tenancy.</p> <p>A homestead can be owned and occupied by husband and wife as tenants in common.</p> <p>The word “ owner ” within the meaning of the homestead exemption law, and even in the case of certain criminal offenses, includes all who have a claim or interest in the property, even though it is an undivided interest, or falls far short of absolute ownership in fee.</p> <p>An allegation that complainants are owners in fee of certain described premises, that there is a building situated on the land, and that they have their residence in it and occupy it as a homestead, sufficiently alleges that there is a “dwelling” on the premises.</p> <p>In a bill to set aside an execution as levied upon a homestead, an allegation “ that the whole value of said premises over and above the amount of two mortgages prior in date to the date of the record of the levy of the execution * * * does not exceed the sum of $1,500” was considered sufficient on a general demurrer, though it would have been better to set forth tho mortgages in detail.</p>

<p>Contract — Prevention of Performance — Damages.</p> <p>Inability to perform a contract does not release a party to it from liis obligation if he was disabled by his own default.</p> <p>Where one contracts to advance capital, his default in doing so is not excused by the occurrence of a financial panic.</p> <p>Where one of the parties to a contract is bound to furnish money needed to carry it out, his default in so doing amounts to a prevention of performance.</p> <p>Where one contracting party can show that the other prevented his performance of the contract, it is to be taken as prima facie true that he would have accomplished it if he had not been stopped.</p> <p>Where parties make a contract whereby one is to enter land in the name of the others and they are to advance money to pay his expenses, on repayment of which they are to deed him a proportion of the land, it is held to be a joint adventure, and the parties do not stand in the relation of principal and agent, master and servant, or vendor and purchaser.</p> <p>A contract was made by which A was to locate and enter pine lands in the name of B and 0 to an amount not exceeding 10,000 acres, they to pay his expenses and to convey to him an undivided fifth of all the land located. Before 10,000 acres had been 'entered the panic of 1873 took place and they became unable to furnish money. Held that a proper measure of the damages sustained by A was the value of one-fifth of so much of the 10,000 acres as had not been located, at the governmental selling price of $2.50 an acre, less the fair expense of locating, with interest from the time when all farther steps to obtain land ceased.</p> <p>A contract provision that one of several joint owners of land should have a commission on sales which he effected, means sales of which he was the procuring cause, since he could not complete a sale ■without the concurrence of the others.</p> <p>The allowance of damages under the name of interest is not material error.</p> <p>Interest is allowable as damages for the non-payment of commissions when they are earned.</p> <p>The question, “What did he say to that?” being asked on cross-examination, it was held that the answer, “I could not say what he replied to it; it appeared to be all satisfactory and he assented to it,” was irresponsive and should have been struck out for introducing an inference of the witness.</p> <p>Evidence of what was said by a third person in reply to one of the parties to the case in transacting the business involved in it, is not hearsay.</p>

<p>Error to Lenawee.</p> <p>Ejectment. The facts are in the opinion.</p>

<p> Usury shown in a suit not strictly on the contract. </p> <p>The defense of usury is'personal and may be waived.</p> <p>One who voluntarily pays usury cannot recover it bach.</p> <p>If a new security is made to include a sum for unlawful unpaid interest, it is so far without consideration and liable to abatement.</p> <p>If a mortgagee of chattels seizes them without having previously brought a personal action upon the debt secured, and replevin is brought to recover them, the plaintiff in replevin can show how much has been paid upon the debt.</p> <p>Comp. E., § 1633, declares that usury shall not avoid a contract, but that in an action on the contract judgment may be recovered for the umount due exclusive of the usury. Held that this does not confine the question of usury to actions strictly on the contract; the defense may be interposed as against new paper substituted for old and made to include usury; and in an action of replevin for goods seized by a creditor under a chattel mortgage made to secure a usurious demand, the question can be raised by way of showing the entire transaction.</p>

<p>Act 411 of 1867 — Joinder in demurrer — Special incorporation.</p> <p>The constitutional limitation upon the creation of corporations except by general laws does not apply to incorporation acts to enable operations to be carried on in specific localities that cannot be carried on any where else.</p> <p>Where an information in the nature of a quo warranto is filed under Comp. L., § 7074, and charges individuals with the wrongful assumption of corporate powers, a joinder in demurrer to a plea of incorporation, leaves the legal incorporation of the defendants the only question in issue. But where it is filed under § 7085 and is aimed at corporate delinquencies, it admits the corporate existence, and the corporation is duly made a party, and under the admission made by the demurrer, it must be deemed to be lawfully incorporated unless there are reasons to the contrary connected with the act of incorporation.</p> <p>Act ill of 1867, for the incorporation of slack water navigation companies in the counties of St. Joseph, Cass, Berrien and Cheboygan, is not invalidated by Art. XV., § 1 of the State constitution,, which prohibits the creation of corporations except by general laws.</p>

<p> Circuit Court Commissioner acting as Judge of Probate. </p> <p>A guardian may be appointed for a minor without notice, and if notice is given for a certain day, an appointment made on a previous day is not invalid.</p> <p>Vacancies in the office of judge of probate are to be filled by the Governor’s appointment (Const., Art. VI., § 11). A circuit court commissioner was authorized by the Revised Statutes of 1816 (Ch. 91, § 16) to act as judge of probate while the vacancy lasted. Held that the statute did not conflict with the constitution, and that it applied also to cases in which the judge was temporarily disqualified by interest, relationship, sickness or absence.</p>

<p> Condemnation of land for private ways. </p> <p>Ten days’ notice must be given before proceedings can be had to condemn land for a private way.</p> <p>Property cannot be condemned for a private way as a mere convenience, but only when there is no other access to the petitioner’s land, and when condemned, its use must be limited by absolute necessity and confined to the petitioner and the owner.</p> <p>Comp. L., ch. 31, for laying out private ways, is defective in not providing for juries.</p> <p>A commissioner of highways has no authority to determine the facts contained in his return; they must be shown to have been proven before a jury.</p>

Criminal information for statutory offenses. Saunders was convicted of breaking and entering by night a court room not connected with a dwelling and feloniously taking therefrom certain recognizances described as contracts in force and public records.

<p>Error to Saginaw.</p> <p>Ejectment. The facts are in the opinion.</p>

<p>Fraudulent conveyances — Indebtedness of husband to wife.</p> <p>A bill in aid of execution for partnership debts was levied on lands supposed to belong to one of the firm, but standing in his wife’s name. Held a valid defense that the husband had conveyed them to his wife.in payment for loans made by her to him, and not necessarily discredited by the non-existence of any written evidence of the debt, or of any obligation to repay it.</p>

<p>Public records — Administrator’s sale of homestead.</p> <p>Secondary evidence may be given of the contents of eourt records that have been lost or destroyed.</p> <p>The statute for restoring lost records (Comp. L., §§ 6055-9) does not exclude secondary evidence of their contents, especially where the restoration is difficult.</p> <p>The homestead exemption is not an exemption of the fee, but only of the land so long as it is occupied as a homestead; the land is assets when needed for the payment of demands against the estate.</p> <p>Where land that is subject to a homestead right is sold to pay charges against the estate and brings no more- than is needed for that purpose, it is not a fatal defect in the proceedings that on receiving license to sell, the administrator gave no bond to account for surplus moneys.</p> <p>It seems that the proviso in Comp. L., § 4596, that an administrator’s sale of real estate shall not be avoided if it appears, among other things, that he gave a bond “in case a bond was required” means in case the judge of probate required it; this, however, is not decided.</p> <p>A widow bought lands sold by her husband’s administrator for the payment of debts, and afterwards sold and left it. Held that after the children became of age no one could raise the question of homestead against the validity of the administrator’s sale.</p>

<p>Appeal from Cass.</p> <p>Bill to set aside deeds. Defendants appeal.</p>

<p> Breach of promise. </p> <p>Breach of promise must be sued for in assumpsit before a justice of the peace if the damages are below $100.</p> <p>Costs go to the defendant when judgment for breach of promise does not exceed $100.</p>

<p> Payment of township ditch orders. </p> <p>Ditch orders are not general township charges and can be paid only out of the particular assessment on the credit of which they were drawn, and which constitutes a separate fund by itself. Comp. Ii., § 1795.</p>

<p> Mandamus to issue an order to stay waste denied. </p> <p>An order to stay waste is discretionary and will not be compelled by mandamus.</p> <p>If one who is entitled to an order to stay waste does not seek it in an affirmative suit at law or in equity, he has no remedy for its refusal.</p>

<p>Act 186 of 1877.</p> <p>Act 186 of 1877 amending Comp, h., § 7270, as to assignees of insolvents is restricted by its title to assignees under Comp. L., Ch. 234.</p>

<p> Non-ownership of note. </p> <p>Non-ownership of a note at the time suit was brought on it is a fuli defense and can be shown under the general issue.</p>

<p>Certiorari to highway commissioner and township clerk.</p> <p>The fact is stated.</p>

<p>Prosecuting counsel — Information for murder under Comp. L., § 7916.</p> <p>The prosecuting attorney may employ, counsel by leave of the court to assist in a prosecution, and the counsel’s servioes would be a proper charge against the county.</p> <p>It is error to exclude evidence that counsel assisting in a prosecution were employed by the complaining witness or by private parties, even though the prosecuting attorney consented or requested that they should act.</p> <p>One cannot be compelled to go to trial on an information untE he has had an examination or waived it.</p> <p>An information charging “that William Sneed, late of the town of Antwerp in the county of Yan Burén and State of Michigan, heretofore, to-wit: on the 13th day of June in the year one thousand eight hundred and seventy-six, at the township of Porter in said Yan Burén county, feloniously, willfuEy and of his malice aforethought, did kEl and murder one Lafayette Love, contrary to the form of the statute” etc., was held, under Comp. L., § 7916, sufficient to charge murder in the first degree.</p>

<p> A wife can be preferred to other creditors. </p> <p>A husband who is indebted to his wife may prefer her to other creditors, and can transfer his property to her to apply on the debt even if it defeats the collection of other debts.</p> <p>The use of property for the payment of a debt is lawful even though intended to cut off the redress of all other creditors.</p> <p>A sale not made in payment of a debt is void as against creditors if made to delay or defraud them and to enable the debtor to put his property in a shape in which they cannot reach it; sales on long time or for assets not readily convertible nor subject to levy may be of this class.</p>

<p>Error to Kalamazoo.</p> <p>Assumpsit. The facts are in the opinion.</p>

<p>Error to Wayne.</p> <p>Trespass. Defendants bring error. The facts are stated.</p>

<p> .Challenges to the array. </p> <p>Challenges to the array must he in writing.</p>

<p> Homicide in self-defense. </p> <p>A conviction of manslaughter disposes of all exceptions that relate only to a charge of murder.</p> <p>It is the right and duty of one who is assailed and put in personal peril to protect himself without leaving it to others to protect him to their own risk.</p> <p>A man was attacked after dark upon his own premises, where his wife and family were, by a powerful and violent man who was in liquor, and in self-defense killed him. Held that if he believed with reason that it was necessary to kill his assailant for the protection of his own life, or to save himself from great bodily ■ harm, it was an excusable homicide, and that he was under no obligation to flee, nor to call for the interference of bystanders.</p> <p>One who has killed an assailant in self-defense and is tried for the homicide, may show by others that the conduct of the deceased at the time of the killing had been so violent as to alarm them; and he can also show the behavior of the deceased on the way to the commission of the homicide.</p>

<p>Error to Genesee.</p> <p>Assumpsit. Defendant brings error.</p>

<p>Execution against the body — Insufficient return.</p> <p>Recognizance of bail cannot be sued on upon the return of an execution against the body merely as “unsatisfied;” it must show that defendant could not be found within the county. Comp. L., § 5763.</p>

<p>Error to Wayne.</p> <p>Ejectment. Defendant brings error.</p>

<p> Validity of township organization. </p> <p>If a petition for the organization of a township is regular on its face, and is presented with due notice and in compliance with all legal requirements, the action of the board of supervisors upon it is political and final.</p> <p>An information in the nature of a quo warranto involved the legality of the organization of a township. The plea alleged its organization after due preliminaries. The replication denied the legality of the proceedings on the ground that the petition for its organization was not signed by the required number of freeholders. Held that if the objection relied upon was that those who did sign were not freeholders, it should have been distinctly set forth in the replication, and permission was given to amend it.</p>

<p>Certiorari to Becorder’s Court of Detroit.</p>

<p>Error to Washtenaw.</p> <p>Trespass on the case. Defendant brings error.</p>

<p>Error to Saginaw.</p> <p>Trespass on the case. Defendant brings error.</p>

<p>Recovery upon verbal assignment — “Negotiable” paper.</p> <p>One' who holds by verbal assignment a promissory note made payable to order and not endorsed, cannot recover upon it in his own name.</p> <p>The term “negotiable,” as commonly applied to paper, is a term of classification, and does not necessarily imply anything more than that the paper has the negotiable quality; it includes notes drawn to order and not endorsed.</p>

<p>Certiorari — Costa—Service of attachment.</p> <p>Certiorari issues from the Supreme Court only where that process is necessary to prevent a failure of justice.</p> <p>Costs are not allowed one who has obtained from the Supreme Court a writ of certiorari without showing that he did not have notice of the proceedings removed in time to avail himself of other remedies.</p> <p>A return of a writ-of attachment not served must show that a copy has been left at defendants’ last place of residence in the county, or that there was no such last place of residence.</p>

<p>Certiorari — Costs—Service of attachment.</p> <p>A judgment in attachment is void on its face if it does not show that the writ was served as required by Comp. L., § 5276.</p> <p>Costs are denied a party prevailing on certiorari from the Supreme Court to a justice, if no reason appears for taking that course instead of seeking the appropriate remedy in the justice’s or circuit court.</p>

<p>Error to Yan Burén.</p> <p>Trover. Defendant brings error.</p>

<p> County treasurer’s salary. </p> <p>A board of supervisors can include in the compensation of the county treasurer the amount received for office charges or payments under the tax-laws.</p>

<p> Capias to be returned the first day of term. </p> <p>A capias must be made returnable on the first day of term.</p>

<p>Motion for leave to apply for new trial.</p>

<p> Service of process. </p> <p>Service of process by merely laying it on the body of a man too sick to understand it, is invalid.</p>

<p>Habeas corpus.</p>

<p>Case made after judgment from the Superior court of Detroit.</p>

<p>Replevin — Evidence of value — Costs.</p> <p>Mandamus lies to compel a justice who has dismissed a writ of replevin to receive evidence of the value of the property if return is waived.</p> <p>Costs were denied for want of notice as against a justice to whom mandamus was issued requiring him to receive evidence of value after he had dismissed a writ of replevin.</p>

<p>Error to Saginaw.</p> <p>Assumpsit. Plaintiff brings error.</p>

<p>Error to Ingham.</p> <p>Trespass on the case. Plaintiff brings error.</p>

<p>Execution sale — Notice—Deed—Adverse possession.</p> <p>Conversation between an attachment debtor and his grantee, tending to show that the deed, which was dated some time before the levy of the attachment, was not delivered until after, is admissible in evidence in an action of ejectment against a later grantee.</p> <p>Parol evidence is admissible to show the true date of the delivery of a deed.</p> <p>The sheriffs certificate of sale and deed are the execution purchaser’s evidence of title.</p> <p>Want of notice of a sheriffs sale may impose a liability on the sheriff, but does not invalidate the title of an innocent purchaser under it.</p> <p>There can. be no adverse possession against one whose legal title or right of entry is incomplete.</p> <p>An execution purchaser’s legal title or right of possession is not perfected until the time for redemption from the sheriff’s sale is over, and he has obtained his deed from the sheriff.</p>

<p>Action brought by an indorser as payee — Agent's authority to make , drafts — Estoppel.</p> <p>An agent’s authority to make drafts cannot be proved by his own statements.</p> <p>Where a variance in the middle initial of the maker of a draft could not have prejudiced any one, it will not be noticed.</p> <p>Suit was brought by an indorser against the makers of a draft purporting to be drawn by an agent, and it was shown that the drawer had previously made a similar draft to the order of the same person, and it had been paid. Held proper to show what the drawer had said in the former ease as to his authority to draw, for the purpose of showing that he assumed to act in the same capacity in both cases, since his conduct in the earlier case gave color to his assumption of authority in the later.</p> <p>In assumpsit by the indorser of a draft against the makers, the plaintiff, though declaring as payee, has a right to show that as an indorser he had paid the draft after receiving notice of its dishonor.</p> <p>Where the proceeds of a draft made without authority in the name of another are received by the latter with full knowledge of the transaction, he must be held to have adopted the act of the original maker and to be liable upon the draft.</p>

<p> Assignment of right of action in trespass. </p> <p>The law will not aid wrong-doers to adjust equities among themselves, nor alleviate their hardships growing out of their trespasses upon the rights of others.</p> <p>One of the parties to a joint trespass is not entitled, by satisfying the claims of the injured person, to take from him an assignment of his right of action for the injury and sue his associates for damages in full, either in his own name or in that of his assignor.</p>

<p> Notice of substitution of attorney. </p> <p>Notice of the substitution of an attorney must be duly served upon the opposite attorney before any other proceedings can be tahen by the attorney who has been substituted.</p>

<p>Error to Kalamazoo.</p> <p>Assumpsit. Defendant brings error.</p>

<p>Injuries by dogs — Comp. L., § 2065.</p> <p>The Michigan statute (Comp. L., § 2065) giving a right of action for certain injuries done by dogs, does not supersede common law actions.</p> <p>A man was traveling the public highway in a sulky, driving with one hand, and with the other leading a mare that was followed by its colt. A dog rushed out of a house by the roadside and bit the colt, which jumped toward the sulky, put one leg through a wheel, and upset it, whereby the man was injured. Comp. L., § 2065 gives a right of action and double damages where a dog assaults or bites or otherwise injures any person while traveling the highway. Held that whether under this statute the man , could have recovered at all for his personal injury, he could not do so without distinctly averring that the injury was caused by the dog and setting it forth as a cause of action under the statute, and without such claim in his declaration, evidence of his personal injury is inadmissible.</p>

<p> Notice of proceedings to open township ditch. </p> <p>On certiorari to bring up proceedings to open a ditch, the drain commissioner must set forth what notice was given, and how and when it was served. His return that he gave the notice required by statute is not enough.</p>

<p> Order to produce books of business. </p> <p>Mandamus lies to vacate an order of discovery compelling the production and . deposit of a party’s business books, if not properly granted.</p> <p>An order of discovery compelling a party to produce and deposit his business books ought not to be granted if it does not clearly appear that necessary information cannot be otherwise obtained, as by subpoena duces tecum.</p>

<p>Error to Ingham.</p> <p>Ejectment. Plaintiff brings error.</p>

<p>Municipal contracts — Agency—Conversion.</p> <p>A paving company receiving pay for both work and materials furnished by itself, is not a municipal agent, but an independent contractor.</p> <p>Recovery cannot be had on a claim against the city of Detroit unless it has been first presented to the common council for audit and allowance as required by the city charter (ch. i, see. 25).</p> <p>A paving company that had forfeited its contract left a quantity of sand in the street which it had agreed to pave, and another contractor used the sand in finishing the job. The company sued the city in assumpsit, resting on the tortious conversion of the sand. Held that the company should have removed the sand, and as it neither did so nor made any demand for it, neither the city nor the later contractor committed any tort in removing it; that it was therefore not converted unless the city sold it; and if the city did not sell the sand, it was not answerable for the use made of it by the contractor, as he was not a municipal agent.</p>

Trover by Rogers against the plaintiffs in error for the seizure and conversion of a quantity of lumber and logs. Rogers was assignee for the benefit of the creditors of the Hubbardston Lumber Company, to which corporation the property had belonged, and the defendants claimed it under an attachment sued out by part of them as creditors of the company. Defendants bring error.

<p>Replevin — Assessment of damages — Comp. L., § 67S4.</p> <p>'The Michigan statute (Comp. L., § 6754) provides that in replevin the fact that either party has only a special property in the goods, may he proved on the trial, or on the assessment of value, or on the assessment of damages. Held that this is meant to permit proof on the trial, if a jury trial is had; or on assessment of value when demurrer is interposed; or on assessment of damages in case of judgment by default. But it does not authorize a second jury to be impaneled to assess damages after the case has been tried on the merits.</p>

<p>Error to Lapeer.</p> <p>Trover. Defendant brings error.</p>

<p>Error to Ingham.</p> <p>Assumpsit on the covenants of a deed. Plaintiff brings error.</p>

<p> Surviving partners. </p> <p>A surviving partner cannot, without express authority, bind co-survivors by a time note in the firm name, even for an indebtedness that occurred before the firm was dissolved by the death of one of its members.</p> <p>Where, after the death of a partner, one of his survivors has taken no part with the rest in carrying on partnership business, he is not bound by any implication that they constitute a new firm.</p> <p>Where an erroneous judgment is entire as against all the defendants, it must be reversed as to all.</p>

<p>Error to Kent.</p> <p>Ejectment. Defendants bring error.</p>

<p>Mortgage — Properly sold out of its order.</p> <p>One who accepts a conveyance subject to the payment of a mortgage becomes personally liable for its payment.</p> <p>A wife is not liable upon the covenants in her husband’s deed.</p> <p>C gave E a warranty deed of a farm subject to a certain mortgage. Another mortgage given to secure a debt of C’s covered the farm and some of Mrs. C’s property, and this mortgage was not excepted from the warranty. Upon the foreclosure of the last-mentioned mortgage, Mrs. C’s property was bid off first and bought in by E. She filed a bill to set aside the foreclosure. Held that as to her own lands she was entitled to the rights of a surety, and could insist that the farm be sold first; that her release of dower rights in the farm gave her the right to insist that E protect her by paying off the mortgage first named; that as between herself and him the foreclosure sale was wrongful, and F acquired no rights by it except the right to the mortgage; that as he had bought the farm from which the mortgage ought to have been satisfied, it should be deemed a satisfaction of the mortgage if it was sufficient; and as the farm was really sufficient to meet both mortgages, the foreclosure deed was set aside.</p>

<p>Stoppage in transitu — Local delivery.</p> <p>Vendors may rescind a sale procured by fraud.</p> <p>Goods are in transitu when in the hands of a carrier for local delivery.</p>

Case made from Kent. Assumpsit. Plaintiff recovered in justice’s court on a promissory note, and defendant appealed to the circuit court, which tried the case without a jury, excluded defendant’s set-off, and found for the plaintiff for the whole amount of his claim.

<p>Infant’s rights — Correction of deed.</p> <p>No decree can be made against an infant without full proofs, and no one can give away or lose an infant’s rights.</p> <p>Correction of a deed cannot be obtained without showing that complainant holds under it.</p>

<p>Error to St. Clair.</p> <p>Assumpsit. Defendant brings error.</p>

<p>Error to Barry.</p> <p>Trespass on the case. Plaintiff brings error.</p>

<p>Error to St. Clair.</p> <p>The case comes to the Supreme Court on exceptions taken by the executor of the will of Daniel Stewart, to the finding of the circuit court on an appeal from probate.</p>

<p>Information in the nature of quo warranto. Judgment was entered for respondents, and relator brings error.</p>

<p> Discontinuance as to joint obligor. </p> <p>Circuit.Court Rule 71, permitting a plaintiff to discontinue as to one or more defendants, is meant to allow a recovery against the rest where the action might properly have been confined to them in the first place. It does not transform a purely joint obligation into a several, nor apply to cases appealed from a justice’s court.</p> <p>A discontinuance as to one of several joint defendants on an exclusively joint obligation is a discontinuance as to all.</p>

<p>Error to Wayne.</p> <p>Assumpsit. Defendant brings error.</p>

<p>Admission of evidence — Verdict under duress — Sealed verdicts — Testamentary incapacity — Intoxication—Wife’s influence.</p> <p>Killings on the admission or rejection of evidence must be based entirely on its legal quality.</p> <p>A jury after being out for one day, sent word to the judge that they could not agree. The judge sent back word that he did not believe it yet and added the suggestion that they had better agree that night, as he was going away and should not be back until the second day after and they might not get discharged until he returned. The verdict was returned within an hour afterwards. Held that it must be set aside as obtained by duress.</p> <p>Testimony as to the .views of individual jurors is against public policy.</p> <p>Leave to find a sealed verdict should be granted where there is likely to be prolonged delay after agreement before the verdict can be received.</p> <p>Intoxication of the testator does not of itself avoid his will if it does not prevent him from knowing what he is about.</p> <p>The presumption from keeping a will uneancelled is that its execution was not procured against the testator’s will or against his intelligent consent, whether fraud, undue influence or the testator’s intoxication is alleged against it.</p> <p>The effect of intoxication upon testamentary capacity is not a question for experts, but depends on common observation and the facts of the particular case.</p> <p>Where intoxication is alleged as a ground of testamentary incapacity, testimony must be confined to the time involved in the transaction.</p> <p>Where a will is contested on the ground that it was procured by the undue influence of the testator’s wife, his general condition and surroundings and his relations with her may be properly shown, but only for such a period as can reasonably be regarded as bearing on the aet of disposing of his property; and recent facts are more trustworthy than those that are long past.</p> <p>Ancient scandals concerning a husband’s relations with his wife before their marriage are irrelevant to the question of her undue influence as a wife in the making of his will.</p> <p>A testator is not unduly influenced by his wife unless she defrauds ' him or exercises such mastery over his will as deprives him of free agency; she has a right to exert any wifely influence over him.</p> <p>Every one has a right to make his will as he chooses.</p> <p>If a finding that a will is invalid is based on anything but a eonseientiohs conviction of actual incapacity, shown by the testimony, it is a disgraceful outrage on justice, and a plain violation of the oath under which it is asserted.</p> <p>Where wills are contested on the ground of testamentary incapacity, courts must exclude all evidence that is merely calculated to rouse prejudice without throwing light on capacity.</p>

<p>Police court of Grand Rapids — Collection of costs.</p> <p>A servant, agent or attorney cannot enforce in his own name the rights of his principal or master.</p> <p>Respondents in mandamus proceedings are entitled to insist that' they shall not he drawn into litigation by any one who cannot properly be relator, nor deprived of the responsibility of an actual proper party to the record.</p> <p>The police justice of Grand Bapids has no authority to proceed against the supervisors of Kent county by mandamus to compel them to audit and allow to the city the fees charged by the Police Act upon the county in cases tried before him.</p> <p>The collection of municipal demands against other corporations is civil and not criminal business, and properly belongs to the city attorney and counselor and not to the police justice.</p> <p>The Police Act of Grand Bapids requires the police justice to collect the costs imposed by him upon individuals, but not such costs as are payable by the county to the city under the act.</p>

<p>Foreclosure — Trusts—Purchase of claims — Marshaling assets— Rehearings— Usury.</p> <p>A trustee to whom certaiu mortgage securities had been assigned made a declaration of trust to a certain bank setting forth that he held them primarily to secure the indebtedness of the cestui , que trust to the bank. Held that this did not of itself preclude the bank from purchasing other claims against the cestui que trust whether secured upon the same property or not.</p> <p>A mortgage on lands given to secure notes that have been allowed, to run after maturity, may be foreclosed at any time within the period of the limitation of actions for the recovery of real estate.</p> <p>Where dealings between the parties to a note would be admissible as against a defendant collaterally interested with the maker, to show non-payment, it seems that the maker’s admissions would bo.</p> <p>The doctrine of marshaling assets must not be applied to the mortgagee’s injury; its purpose is to protect as far as possible later interests.</p> <p>A junior incumbrancer joined as defendant in foreclosure and claiming the benefit of the doctrine of marshaling assets, should allege and establish such facts as would entitle him thereto.</p> <p>It is the practice in Michigan on foreclosure to allow a reasonable time for payment, definitely fixed by the decree.</p> <p>Where a banking institution had power to lend deposits on the public stock of the State or the United States on bond and mortgage or “upon any other securities which should be deemed by the board of directors ample,” it was held that it was not limited to the first mentioned securities, but could discount commercial paper.</p> <p>Where one banking institution is organized as successor of another whose securities are .assigned to it in writing, it can enforce their payment as against parties liable thereon, even though the assignor might have rights which it did not consider of enough importance to ask the court to protect.</p> <p>A rehearing for evidence which the petitioner could not produce upon the first trial is not granted if it does not appear that testimony which is not merely cumulative and could not with reasonable diligence be procured in season, has been discovered since the decision of the case, which if introduced, might in the court’s opinion change the result to petitioner’s advantage.</p> <p>On petition for a new trial for additional evidence, the physical and pecuniary condition of the petitioner are properly considered in determining whether reasonable diligence had been shown in trying to obtain it for the first trial; so also is the knowledge of the party as to the essential facts of the case and the difficulty of establishing them by competent testimony.</p> <p>Where outstanding creditors are not made parties to a foreclosure against property by which their own claims are secured, they are not concluded by the decree and have their proper remedy.</p> <p>Behearing on foreclosure will not be granted on the ground that notes secured by the mortgage were void for usury in the state where they were given. This is so at least where the notes are apparently good.</p> <p>Intention to violate the law will not be presumed.</p> <p>Behearing for new evidence will not be granted where the petitioner had an intimation that it might have been obtained and did not compel its production.</p> <p>Whether notes given elsewhere to be paid in Michigan may not bear such interest as is allowed by the laws of Michigan — Q.</p> <p>Parties pending suit may malte any agreement with each other that does not on careful scrutiny or other evidence appear to injure the legal or equitable rights of others or contravene the law; a plaintiff may purchase his peace or agree as to the disposition , he will malte of the judgment he recovers.</p> <p>An agreement between a complainant and defendant in foreclosure by which the former is to bid in the premises and convey them to the latter for the amount of his claim does not preclude any other person interested from paying the decree and defeating the arrangement.</p> <p>An appeal by one defendant in foreclosure does not benefit another, nor does his failure to appeal prevent another from appealing.</p>

<p>Bill to quiet title — Quit claim of “remaining interest.”</p> <p>It is not a matter of course to deny relief in equity when a suit at law is pending, if the decision at law cannot cover the whole controversy.</p> <p>One who has a right to file a bill to quiet title may properly include parcels of land contracted to others and in their possession.</p> <p>A bill to quiet title will lie even when an action of ejectment is pending. against part of the land, if judgment for defendant therein would still leave the title in dispute.</p> <p>A cloud rests on title so long as it is questionable if defendant’s title is not prima facie better than complainant’s.</p> <p>It is only a presumption that the date of acknowledgment, if later than that of the deed, is also the true date of delivery; it may be overcome by proof.</p> <p>It is presumed that the parties to a deed understand that delivery is essential to an operative conveyance.</p> <p>Where a grantee died between the dates of the deed and its acknowledgment, it was presumed that the deed had been delivered in his lifetime.</p> <p>Where a deed describes lands by metes and bounds or otherwise, aud purports to convey it, the grantee,- if a purchaser for value without actual or constructive notice of previous conveyances, is ' entitled to claim what is described.</p> <p>A deed of the grantor’s “now remaining” interest in certain lands does not defeat a prior unrecorded conveyance, because it is not a second conveyance of anything previously conveyed; the deeds may stand together.</p>

<p>Municipal courts — Act 49 of 1875.</p> <p>The municipal courts provided for in see. 1 of art. vi. of the Constitution, were intonded for the benefit of tho cities in which they should be established, and are limited in their jurisdiction; it was not the purpose to give thorn a jurisdiction co-extensivo with tiio county or materially affect tho jurisdiction of the circuit courts.</p> <p>Tho Constitution contemplates that each judicial circuit should embrace at least one county and that there should not be more than one circuit court, nor a circuit court and a county court besides, in any one county.</p> <p>Act 49 of 1875 is unconstitutional in so far as it gives to the Superior Court of Grand Rapids jurisdiction of transitory actions on servieo upon any defendant wiLhin the city, whether any of the parties reside there or not.</p> <p>Municipal courts, though not inferior tribunals, are limited in their jurisdiction by the residence of partios; and their jurisdiction should be shown on the record, though their judgments and decrees are binding until reversed even if it is not shown.</p> <p>Ono who pleads the general issuo submits to the jurisdiction and is bound by the judgment of the court; after going to trial on the merits, lie cannot in tho appellate court first raise the question of jurisdiction.</p>

<p>Incorporation of military companies — Act 40 of 1877.</p> <p>Act 40 of 1877 authorizing the incorporation of military companies does not permit a minority of a company to he incorporated: and it is defective in its provisions as to the necessary proceedings to effect incorporation.</p> <p>Laws for the voluntary organization of private corporations cannot he so construed as to include among thoso who are allowed to he incorporated any who are not plainly made competent.</p>

<p>Declarations of ownership — Estoppel.</p> <p>Declarations as to ownership by a party in possession are to bo received in disparagement of title; not in support of it, unless as res peste to make out an adverse holding.</p> <p>An agent’s possession of chattels cannot empower him to admit away his principal’s title, notwithstanding the rulo that his deelations within the scope of his agency and in connection with some transaction as agent, are receivable as res gestee.</p> <p>Special questions to the jury may properly be rejected by the court where answers to them would be inconclusive and not .necessarily inconsistent with a general verdict either way.</p> <p>One who is silent when he ought to speak cannot speak when he ought to be silent.</p> <p>An agent’s casually speaking of a certain machine belonging to the corporation for which he acted, as “my machine,” in the hearing of the president of the corporation and in conversation with a person who was not dealing with the property or proposing to do so, and who was not shown to have relied upon any such expression of ownership, did not estop the corporation from afterwards asserting title to the machine in an action of replevin against a sheriff who took it on an execution against the agent. Levy of execution can never of itself place title in the judgment debtor by estoppel or otherwise.</p>

<p>“Insanity” not a termo de la toy — “Emotional” insariity — “Experts” — Reasonable doubt.</p> <p>A “reasonable doubt” is not a mere imaginary, captious or possible doubt, but a fair doubt based on reason and common sense, and growing out of the testimony in the case ; it is such, a doubt as will leave one’s mind, after a careful examination of all the evidence, in such a condition that he cannot say he has an abiding conviction to a moral certainty, of the defendant’s guilt.</p> <p>Every one who is compos mentis or a free agent is legally responsible ; every one who is non compos mentis or has not control of his mind, is irresponsible.</p> <p>One who indulges that convenient form of insanity which lasts just long enough to enable him to commit an act of violence is as responsible for his condition as a drunken man.</p> <p>Moral insanity does not necessarily require the evidence of experts.</p> <p>Evidence tending to show respondent’s insanity does not throw upon the prosecution the burden of overbalancing it if it does not raise a reasonable doubt.</p> <p>A charge must be construed as an entirety.</p> <p>The Supreme Court is not disposed to criticise the omission to give requests for instructions which tend to distract the jury by calling special attention tp metaphysical subtleties or particular testimony.</p> <p>A jury has a right to consider any testimony that has been allowed to go before it, and to draw natural inferences from it.</p> <p>It is better to avoid directing the jury’s attention to specific bits of evidence or to particular witnesses, unless necessary.</p>

<p>Fraud — Enforcement of Equitable lien.</p> <p>One who complains of fraud need only set forth in his bill the sub"stance of the transaction and the result; evidence that the mode of consummating the fraud varied in some respects from the manner charged is no reason for denying relief.</p> <p>One who fraudulently and with no purpose of fulfillment procures a conveyance in consideration of an agreement to obtain a conveyance of other lands to the grantor, and then retains title and possession, may be compelled in equity to pay the value of the premises as if on a completed sale to him.</p> <p>The existence of a legal remedy will not prevent resort to equity to have the agreed consideration or the value of premises out of which the complainant has been cheated, declared an equitable lien on the lands.</p>

<p>Ownership of water is an interest in realty — Injunction to restrain its diversion.</p> <p>Reservations in a deed are to be construed as having the force which the deed evidently meant they should have.</p> <p>The ownership of water cannot be confined to a mere right in the nature of a license, and is not dependent on lands to which it may be appurtenant; it is as well recognized a title or interest in realty as land itself, and uses by which it is limited to special places and specified purposes are exceptional.</p> <p>When land is conveyed with a reservation'of the right to divert a stream so that it shall flow out of the premises, and the use of the water is afterwards granted to subsequent grantees of property on the borders of the stream, to be used in the due enjoyment of j the property but to be returned to the channel above the point of diversion, neither they nor their successors can collect the water for any purposes aside from those connected with their riparian rights above that point,</p> <p>injunction lies to restrain the collection and diversion of the water of a stream by an upper riparian owner limited to its use for certain purposes and required to return it to its channel.</p>

<p>Physicians — Liability for injuries from want of skill — Expert testimony.</p> <p>In an action against a surgeon for want of skill, defendant claimed that plaintiff at a certain time had thrown off his splints and walked on crutches. Plaintiff being asked if he had not caused one of the hospital nurses to write to that effect to a specified person, said ho did not remember, field proper for the purpose of identifying the writer to ask him farther whether he had not afterwards caused the person said to have been addressed to write to the'nurse.</p> <p>In an action for injury from a surgeon’s negligence, it is proper for the defense to show that it resulted from plaintiff’s imprudence in throwing off his splints and going on crutches, but that fact cannot be shown by the statements of one who had no personal knowledge of it.</p> <p>In an action for injury resulting from a surgeon’s’ unskillfulness in treating a dislocation as a fracture, it was shown that if his diagnosis was correct, a grating sound would have been heard on manipulation of the limb. Held that evidence could be given of remarks made by bystanders at the time of the examination tending to show that they heard such a sound.</p> <p>Counsel who see fit on cross-examining a defendant to bring out evidence of purely collateral matters not in the case, are bound by his answers, which are conclusive.</p> <p>A physician cannot be asked his opinion as to the cause of an injury, judging merely from the condition in which he found the patient, and .without any knowledge as to how it took place.</p> <p>An expert cannot give an opinion based on his personal examination unless the facts on which the opinion is founded are all stated; and it must be limited to these facts and exclude all others, even though there are -others within his knowledge.</p> <p>A bill of exceptions that gives the name of each witness and states that “being duly sworn, he testified -in substance as follows,” closing the statement of his testimony with the words “and the testimony being here closed,” is presumed to contain all the evidence bearing on the questions raised.</p> <p>If a family doctor or railway surgeon on leaving town recommends, in case of need, some other physician, who is not however in any sense in his employment, it does not make him liable for injuries resulting from the lattor’s want of skill in case he should be employed.</p> <p>A physician must exerciso reasonable skill, taking into account the advancement of professional learning, but a charge that he must exercise such skill as is ordinarily exercised by educated physicians, without farther defining it, is incorrect.</p>

Eoreclosure. Stewart, being indebted to Higman, gave him a mortgage on his farm and also assigned to him as farther security, a mortgage that had been given to himself on certain mill property already subject to two mortgages and an execution sale. Higman after-wards took an assignment of the certificate of execution sale, and as there was no redemption he received a sheriff’s deed of the property.

<p>Appeal from the Superior Court of Grand Rapids.</p> <p>Injunction to restrain suit on replevin bond. Defendants appeal.</p>

<p>Error to St. Clair.</p> <p>Assumpsit under special counts against the sureties on an official bond. Defendants bring error.</p>

<p>Error to Allegan.</p> <p>Trespass on the case. Defendant brings error.</p>

<p>Insurance — Waiver of objection that the policy was prematurely delivered — Avoidance of insurance for misstatement of interest— One cannot insure who has no insurable interest.</p> <p>■Where an insurance agent with, no authority to give credit had delivered a policy before the premium was paid, but had accounted to the company for the premium, it was held that it was too late to object to the credit.</p> <p>An insurance policy containing a clause of avoidance for misrepresenting the interest of the insured covered an organ claimed by him but actually held under a contract of purchase, paid in part but providing that title should not pass until it was fully paid. His equitable interest in the organ was insured for more than its value. Held that the omission to state the facts as to the actual ownership invalidated this part of the insurance.</p> <p>One cannot insure property if he has no insurable interest in it; and insurance taken in good faith on goods belonging to the wife of the insured is void, even though the company had full knowledge of the facts of ownership;' the doctrine of waiver cannot apply.</p> <p>In Michigan a man has no control over his wife’s property.</p>

<p>Appeal from Clinton.</p> <p>Bill to compel the conveyance oe title. Defendant Droste appeals.</p>

<p>Partition — Final order — Costs.</p> <p>A decree determining the legal estate of parties in lands is final and appealable ; it is too late to examine the merits of the case on an appeal from any subsequent order made for the purpose of enforcing it.</p> <p>Costs and charges of partition proceedings should be apportioned against the defendants in the decree. Comp L., § 6333.</p>

<p> Notice of appeal from highway commissioner. </p> <p>Proceedings of a township board reversing an order extending a highway were quashed for want of a proper showing of notice of an appeal from the order.</p> <p>Notice of an appeal to the township board from an order extending a highway is needful to confer jurisdiction to proceed, and cannot therefore be shown by a mere recital in the final order of the board to the effect that due notice had been given.</p> <p>A township board on an appeal from a highway commissioner cannot go beyond the grounds of the appeal and pass on other matters.</p>

<p>Error to Calhoun.</p> <p>Assumpsit. Defendant brings error.</p>

Assumpsit on a logging contract with a plea puis dar-, rein that plaintiffs had assigned their claim after the referee had filed his report. Plaintiffs recovered and defendant brings error.

<p> Assignment of Chattel Mortgage. </p> <p>Where a chattel mortgage that is given for a fixed sum but really to secure future advances, of which none are made, is assigned in good faith and for value to one who supposes it to be given for an actual indebtedness, the assignee obtains no greater rights than the mortgagee had, unless it is given to secure negotiable paper, when, if the assignment is made before maturity, he holds the paper and the mortgage discharged of pre-existing equities.</p>

<p>Error fo Mason.</p> <p>Replevin. Defendant brings error.</p>

<p>Appeal from Saginaw.</p> <p>Bill to set aside conveyance.</p> <p>Complainant appeals.</p>

Bill for discovery and accounting; for the appointment of a receiver to supersede trustees, and the execution of the trust by the court. Complainants appeal.

<p>Error to St. Clair.</p> <p>Assumpsit on special and common counts. Plaintiffs bring error.</p>

<p>Error to Wayne.</p> <p>Replevin. Plaintiff brings error.</p>

<p>Error to Osceola.</p> <p>Bill to quiet title. Defendant appeals.</p>

<p>Knowledge or negligence necessary to commission of misdemeanor —Comp. L., § 7990.</p> <p>Comp. L., § 7990 makes it a misdemeanor for any one to sot fire to “woods, prairies or grounds not his own property” or to negligently let fire pass from his own premises to the injury of another’s property; and any one convicted of such offense may be held liable in double damages to the person injured. Held that where stubble had been fired by a hired servant without his master’s knowledge, and neighboring property was thereby injured, neither the servant nor his master, to whom no neglect had been imputed in employing him, came within the terms of the statute.</p>

<p>Appeal from Ottawa.</p> <p>Bill por partnership accounting and for specific performance.</p> <p>Complainant appeals.</p>

<p>Error to Genesee.</p> <p>Berlevin. Plaintiff brings error.</p>

<p>Judgment should show data for computing interest — Mis-trial,</p> <p>Where a judgment was made to cover interest and there were no data to show how much was due, the finding was treated on error as amounting to a mis-triai.</p>

<p>Error to Berrien.</p> <p>Declaration on a bond. Defendants bring error.</p>

<p>Error to Muskegon.</p> <p>Assumpsit on contract. Defendants bring error.</p>

<p> Appeals from commissioners in probate are always at issue. </p> <p>Appeals from commissioners in probate are always at issue, and if noticed for trial in due time must be placed on the docket, even though no plea had been filed when notice was given.</p> <p>An order that an issue be framed on an appeal from commissioners in probate need not delay proceedings to a trial.'</p>

<p> Adjournment of township hoard.' </p> <p>A township board sitting to hear an appeal from the action of a highway commissioner in laying out a road has power to adjourn for any reasonable cause to a specified day.</p>

<p>Error to Wayne.</p> <p>Trespass on the case under the Civil Damage Law. Plaintiff brings error.</p>

Information for grand larceny to which respondent pleaded in abatement that he was guilty of “petit larceny” only, and was convicted accordingly, and sentenced to confinement at hard labor for ten months in the Detroit House of Correction.

<p> Waiver of tort and suit in assumpsit. </p> <p>Assumpsit does not lie for the value of goods taken and used but not disposed of by defendant for money or money’s worth; but the owner can bring trespass for the taking or trover for the goods.</p>

<p> Notice of appeal from commissioners on an estate. </p> <p>A probate judge can direct how service of notice of an appeal from commissioners on an estate shall bo served upon a corporation; and may name the officer, agent, etc., on whom it shall be made.</p> <p>An appeal in chancery will not necessarily be dismissed for want of notice of the appeal itself; the notice is merely to enable the appellee to prepare for the appeal, and he is entitled to notice of hearing besides.</p>

<p> Recovery of funds deposited by an agent and appropriated by the depositary to pay the agent’s personal debt. </p> <p>Where an agent or trustee has deposited money belonging to his principal or beneficiary in a bank to which he is himself indebted, and the bank, without his authority and in ignorance of the true ownership of the fund, has applied it on the debt, the owner is not debarred from recovering it from the bank if it can be identified.</p>

<p>Conflict of laws — Sala/ries of city officers.</p> <p>A new law cannot be controlled by an old one unless that intent is plainly expressed.</p> <p>The charter of Detroit by a provision made in 1871 forbids the reduction of the salary of any city officer during his term. Act • 302 of 1S73, creating a Board of Public Works, provided that “ each member of the board shall receive such salary per annum as the Common Council may from time to time establish.” Held that the provision in the charter had never applied to any public board and could not restrict later legislation containing independent provisions concerning salaries; and that under the act of 1873 the council could reduce the salary of a member of the Board of Public Works during his term of office.</p>

<p>Municipal corporations — Printing village ordinances — Legal folio.</p> <p>Contracts cannot arise from the action of one party alone where the other has no power to prevent his action.</p> <p>A village newspaper cannot recover for printing the local ordinances unless the printing was ordered by the legislative body of the village.</p> <p>The time during which a publication of village ordinances must be continued cannot be fixed by any mere ministerial officer, without express authority, but must be fixed by the legislative body of the village, which would also have authority to designate the paper in which the publication must be made.</p> <p>A legal folio is one hundred words. Comp. L., § 7459.</p>

<p>Supervisors — Vacation of State road — Certiorari.</p> <p>If on presentation of a proper petition to vacate a portion of a State road, the board of supervisors acquire jurisdiction to act, and do not in their final determination of the case exceed their jurisdiction, defects in their intermediate proceedings will not invalidate their conclusion or make it subject to review on certiorari.</p> <p>The action oí a hoard of supervisors in ordering a portion of a State road to he vacated is legislative in its character and not subject to the same rules as judicial proceedings.</p> <p>Where the facts set forth in a petition to vacate a portion of a State road fairly tend to show that the public would be benefited thereby, a finding by the board of supervisors that they were sufficient cannot be questioned.</p>

<p>Case made from Kent.</p> <p>Forcible entry and detainer. Complainant had judgment below.</p>

<p>Mis-trial — Defective finding.</p> <p>In a suit on a guaranty of collection, a finding that shows an apparent exhaustion of legal remedies, but does not describe or identify the note or show that the plaintiff is still holder, amounts to a mis-trial.</p>

<p>Demurrer — Waiver of formal defects in declaration by introducing testimony.</p> <p>Yerbal demurrers in the circuit court are unauthorized.</p> <p>-Defendant waives formal defects in a declaration by putting in testimony.</p> <p>Where the proof is not given in the record, it must be assumed to be sufficient to support the verdict.</p>

<p>Error to Kent.</p>

<p>Board of supervisors — Allowance of claims — Ex parte affidavits.</p> <p>A board of supervisors in. acting on a claim, may receive ex parte affidavits in support of it, if they see fit; but they are entitled to legal evidence if they chooso to requiro it.</p> <p>A sheriff has no legal right to traveling fees on writs which were never served, though the board of supervisors may allow for services performed (Oomp. L., § 7481); but their refusal to do so is final. Const., Art. x, § 10.</p>

<p> Notice must be given of proceedings to run a drain. </p> <p>Proceedings to lay out a drain are quashed for want of evidence-that statutory notice was given to the parties concerned.</p>

<p>Error to Huron.</p> <p>Assumpsit. Plaintiff brings error.</p>

<p>Foreclosure — Notice of hearing — Interest—Rehearing.</p> <p>Where defendants in foreclosure neglect to appear after due service, the complainant can proceed ea! parte without noticing the case for hearing or placing it on the term calendar.</p> <p>Interest at the contract rate is allowed in Michigan as well after as before the maturity of the debt.</p> <p>Comp. L., § 6087, permitting interest upon judgments applies also to decrees.</p> <p>A motion for rehearing that has been delayed until after the time allowed for taking an appeal has expired, is too late if the laches is not excused.</p>

<p>Error to Genesee.</p> <p>Assumpsit. Plaintiff brings error.</p>

<p>Execution — Exemptions—Appraisal—Waiver—Eemand before bringing replevin. ■</p> <p>A boarding house keeper is entitled to the same exemption of household furniture as any other person, even though it had been procured to carry on his business and he had abandoned it.</p> <p>An officer levying execution is required by statute to appraise the goods and set aside so much as is exempt; it is not necessary that when levy is made the execution debtor should assert a claim to property as exempt.</p> <p>An execution debtor does not waive tho right'to bring replevin for goods improperly seized, by having receipted for them to the officer and agreed to deliver them at a specified time or pay the judgment.</p> <p>Surrendering possession of goods when they are levied on, is compulsory, and not a surrender of any right.</p> <p>The appraisal of goods which ah officer levying execution is required . to make, must be made where the goods are found; they cannot be removed for the purpose, when the appraisal can be made as well where they are.</p> <p>Demand is not necessary before bringing replevin against an officer whoso seizure of goods is an abuse of his authority.</p>

<p>Case made from Kent.</p> <p>Trespass on the case. Plaintiff had judgment below.</p>

<p>Case made from Kent.</p> <p>Replevin. Defendant had judgment below.</p>

Assumpsit by Muirhead against James and Ziba Dewey, co-partners as James Dewey & Son, on an agreement made by them to pay Muirhead, who was clerk for Justice Potter, to collect for them a judgment theretofore rendered before the justice, in favor of Dewey, Middle-worth & Co. and against James Mackey. Defendants had judgment below and plaintiff brings error.

<p> Bona fide holding of paper transferred in fraud of one’s partner. </p> <p>A transferee of paper given to an individual partner for partnership property, and transferred by him in satisfaction of his individual debt and in fraud of the other partner’s rights, cannot be deprived of his right as lona fide holder except on evidence of his participation in the fraud or other misconduct of the partner who transferred to him.</p>

<p>Mechanics’ lien — Levy on the ground of fraud against creditors — ■ Financial reputation — Creditor’s bill.</p> <p>A mechanic’s lien is terminable on redemption, and therefore gives no fixed right of possession for any particular period and does not concern third persons if not asserted by the parties.</p> <p>A mechanic’s lien does not preclude the general owner from replevying the goods as against a stranger.</p> <p>The Supreme Court will not weigh testimony whore there were facts for the jury.</p> <p>A levy on goods sold to a third person is not maintainable on the ground of fraud by the vendor as against his creditors, unless it is shown that the execution creditor had a claim when the sale was made and that the sale was fraudulent as against that claim.</p> <p>General reputation as to financial standing cannot prove fraud.</p> <p>Piling a creditor’s bill does not prove its contents against the defendant.</p>

<p>Assignment of partnership claim — Set off.</p> <p>Where an assignment of a partnership claim was made by an agent of the firm with the consent of one of the partners, to apply on a demand against the agent and the consenting partner, it was held that the objection that the assignment was invalid for want of the assent of all the partners, only went to the sufficiency of the consideration as between the partnership and the assignees, and could only be raised by the partners themselves.</p> <p>An assignment in the name of a firm cannot be contested by third persons without showing that the partners did not acquiesce in it.</p> <p>An assigned claim cannot be offset by a demand that had not matured at the time the assignment was made.</p>

Trover for the conversion ' of billiard tables seized under a county treasurer’s warrant for the collection of the liquor tax imposed by Act 228 of 1875.

<p> Finding of fact not reviewable at law. </p> <p>A finding that the facts in proof make out an understanding between parties that a certain transaction shall settle a demand, is a conclusion of fact and not reviewable at law.</p>

<p>Case made from Kent.</p> <p>Assumpsit. Plaintiff had judgment below.</p>

<p>Contract — Acceptance—Terms.</p> <p>An inquiry by one „ party as to how much the other’s firm were paying for stave bolts, and the answer that they would take all he could make and deliver at two dollars a cord, would not constitute a contract without a farther agreement to accept or act on their order, or deliver a stated quantity.</p>

<p>Encroachment on highway — Dedication.</p> <p>The conduct of an abutting owner in consenting to a survey to fix the line of the highway; his promise to remove his fences as encroaching thereon; their subsequent removal by the highway commissioners after notice to him, and his admission that their claim was right, were held, admissible in evidence in an action against the commissioners for removing the fence, as showing a dedication not by parol but by present unequivocal acts.</p>

<p>Garnishment — Discontinuance,</p> <p>Garnishment proceedings are ended by plaintiff’s failure to appear on the return of a summons to the garnishee to show cause why judgment should not be entered against him; and the subsequent appearance of both plaintiff and garnishee cannot affect rights acquired by a third person as assignee of the debtor’s demand against the garnishee, even though the assignment was made on the same day the writ of garnishment issued.</p>

<p>Error to Ionia.</p> <p>Assumpsit. Plaintiff brings error.</p>

<p>Case made from Ionia.</p> <p>Garnishment. Plaintiff brings error.</p>

<p>Tenancy at will — Notice to quit.</p> <p>A divorced wife, who with her husband’s consent, has kept possession of lands to which he holds the legal title, is at least a tenant at will and entitled to notice before she can be disturbed.</p>

<p>Appeal from Calhoun.</p> <p>Bill to set aside the discharge of a mortgage, and for foreclosure and sale. Defendant Stone appeals.</p>

<p>Railway trains — Negligent injivry to passengers — Declaration.</p> <p>Negligence consists in the failure to observe that degree of care which the law requires for the protection of the interests likely to be injuriously affected by the want of it.</p> <p>A declaration for negligent injury must set forth the duty which has been neglected, and aver the neglect, and the case fails if such neglect is not proved.</p> <p>Eailway trains should stand at the stations a reasonable time before their departure, to permit passengers to enter them; usually twenty or thirty minutes is more than can reasonably be demanded; but until it becomes necessary to put them in position to await passengers, there is no negligence in moving them back and forth as the convenience of the company in making up and stationing other trains may require.</p> <p>A railway passenger trying to board the wrong train, fell and was killed in consequence of the sudden movement of the train. Held that there could be no recovery for the passenger’s death as caused by the wrongful act, neglect or default of the railway company, on a declaration alleging it to have been the company’s duty to receive and transport such passenger by that train.</p> <p>A railway company may be liable on proper averments, for damages resulting from misleading announcements whereby passengers are lod to attempt to board the wrong train.</p>

<p>Appeal from Calhoun.</p> <p>Foreclosure. Defendants Kellogg, Stout, Mills and Temple appeal.</p>

<p>Recording laws — Proof of inheritance — Ejectment by holder of tax-title against one who entered by stealth.</p> <p>The registry of a New York deed made in 1838 and attested by only one witness is inadmissible as ovidenee in Michigan, being subject to the recording laws of 1827.</p> <p>Pacts not shown must be taken as not existing.</p> <p>The registry of a quit-claim deed purporting to be from the heirs of a former owner is inadmissible to show title on proof only that they were his children, without showing that they were born in wedlock or that their mother became his wife.</p> <p>The holder of a tax-title whose occupancy consists in making improvements and not in actual residence, can bring ejectment against one who has forcibly entered without right and by stealth.</p>

<p>Commitment for murder — Expert testimony as to pistol shots — Character of the accused — Self-defense—Cooling time.</p> <p>A commitment is not bad if in terms that would bo good in an indictment.</p> <p>The phrase “cause to suspect” instead of “cause to believe” is admissible in a commitment; and it has not been held necessary in practice that the commitment state that the party is to be held “for trial,” as that is taken for granted.</p> <p>In a trial for homicide, where self-defense is the justification, it is proper to show the relative strength and temper of the parties, and such other personal qualities, not capable of any description except by opinion, by witnesses who are familiar with them and capable of judging; and to show also that the accused seemed to be in fear of his assailant, and that the latter was a powerful man of a dangerous temper, who had threatened him.</p> <p>Firing a bullet once into a suit of clothes does not qualify one to testify as an expert as to the effect of a pistol shot upon clothing at a certain distance; the style and calibre of the weapon and the strength of the charge need to be considered, and the witness should know of similar experiments at greater or less distances.</p> <p>In a trial for homicide testimony of the good character of the accused cannot be met by evidence that he had formerly committed an act of violence against another person, at another place, and under different circumstances.</p> <p>Any serious bodily harm, like mayhem, apprehended from a felonious attack, justifies extreme resistance, and the assailed cannot be required to draw very fine distinctions as to the extent of the injuries likely to be inflicted.</p> <p>It is not a presumption that the mere presence of by-standors will prevent an assailant from inflicting extreme injury.</p> <p>It is error to leave a case of homicide to the jury on the theory that the accused had armed himself with the intention of killing the deceased on the first pretext or assault by him, and took advantage of an attack to do so, unless there is testimony legally bearing in that direction.</p> <p>Where, without cooling-time, one shoots a violent assailant and there is nothing to show that his apparent fear of his assailant was a pretext to enable him to commit murder, it is error to mislead the jury with instructions as to cooling-time not warranted by any facts in the case.</p>

<p>Error to Alpena.</p> <p>Information for keeping a house of ill-fame. Defendant appeals.</p>

<p>Accomplice’s testimony — Coercion of wife.</p> <p>An accomplice, whether or not he is joined in the same indictment with the prisoner, or has already been convicted, is a competent witness lor the prosecution provided he is not put on trial at the same time.</p> <p>Where a wife, participating with her husband in a robbery, throttled the victim and told him to keep still, while her husband and a confederate rifled his pockets, the jury would be justified in finding that she did not act under her husband’s coercion but was independently guilty.</p>

<p>Mandamus to executive departments — Recovery of money from the State.</p> <p>Mandamus does not lie to compel the Auditor General to pay over to a county moneys 'which have been withheld from it in the annual settlements, under a mutual mistake of law and by authority of Gomp. L., § 1090, by which the counties were charged with deficiencies on re-sales of State tax bids.</p> <p>The action of the head of an executive department of the State is not judicial and therefore not subject to direct proceedings for review.</p> <p>Whether mandamus lies to interfere with the action of the Auditor General on matters of a purely public and executive nature, where it is not purely mechanical, hut involves the exercise of mixed functions — Q.</p> <p>Where money has gone into the State treasury as part of a general balance rightfully received, and not as a separate and independent item wrongfully received, mandamus will not lie to require its repayment, nor can any suit be maintained for it unless voluntarily allowed within the authority of some proper officer.</p> <p>When a State sues, it is limited in its recovery by any defenses .that might be set up against individual plaintiffs.</p> <p>A State cannot be sued in its own courts without its own consent; nor can any suit that is really against the State be maintained against a State officer.</p> <p>Executive discretion cannot be judicially reviewed; and where the action of any officer to whom the State confides the auditing of claims against it, is anything but ininisterial, it cannot be reviewed.</p> <p>The Supreme Court exercises no control over the Board of State Auditors in their disposition of claims against the State, not provided for by general law.</p> <p>Costs are denied on refusal of a writ of mandamus where the question is new and its settlement important for the general interests.</p>

<p> Alternative sentences. </p> <p>A justice’s sentence “to pay a fine of $30, and in default thereof to go to jail for 30 days,” is bad for ambiguity if it be uncertain whether it orders imprisonment by way of compelling payment of the fine, or imposes an alternative punishment.</p> <p>A sentence imposing imprisonment by way of compelling payment of a- fine is bad is it does not provide that the imprisonment shall have a definite outside limit, and shall end as much earlier as the fine is paid.</p> <p>A justice cannot impose an alternative sentence for assault and battery. Comp. L., § 5566.</p>

<p>Certiorari to Wayne Circuit Court.</p>

Conspiracy. Donnoly was convicted of conspiracy to feloniously steal, take and carry away bank bills of the value of $125, and was sentenced to be confined at hard labor in the county jail for 30 days and pay a fine of .$200 within that time, and in default of payment of the fine within the thirty days, to be confined in the county jail for one year. Defendant brings error.

<p>Plat — Acknowledgment—Notice of conveyance to private persons.</p> <p>A plat of lands belonging to a woman was acknowledged by her husband as owner, and so recorded. The wife afterwards formally acknowledged the plat and the record was altered conformably.' Held, that it did not entitle purchasers to hold the ■ ■ -woman as having conveyed to her husband, or in any responsible way recognized title in him.</p> <p>A recorded plht, under Michigan statutes, is notice only of the platting and consequent dedication to the public of such interests only as the grantor possesses, and is not notice of any conveyance to private parties merely implied upon its face or in tho-acknowledgment.</p> <p>A record is not notice for any purpose not declared by statute.</p> <p>The acknowledgment of a plat is, in Michigan, the essential act of dedication, and without it a plat has no force in itself for any purpose.</p> <p>The registry of a plat or conveyance cannot be altered to conform to a subsequent acknowledgment.</p>

<p>Courts — Service of process — International comity.</p> <p>Service-.of process beyond the jurisdiction of the court which issued it, cannot oblige the party served to appear and defend in that court.</p> <p>The judgment of a Canadian or any foreign court upon service of its process made in- Michigan, is not binding on a defendant who refused to recognize its jurisdiction; and it will not support an action in the State courts.</p>

Replevin by Payment for a- steam engine and boiler which he had turned over to an officer in place of a steam tug which the latter had attached in a suit before a justice brought by McRae, Craig & Co. The engine and boiler were sold on execution to defendants in error. In the replevin suit the following document, marked Exhibit I, was admitted in evidence against the plaintiff’s objection: “McRae, Craig & Co. vs. Richard Payment and Clovis Payment.

<p> Be facto corporations not to he treated as partnerships. </p> <p>Where a body professing to be a corporation has been dealt with expressly as such, those who have so dealt with it cannot question its corporate existence for the purpose of charging its members individually as if they were partners.</p>

Appeal to the Circuit Court from an order of the Probate Court confirming the rejection by commissioners on the estate of John W. Pardee, of a claim of $9578 made on behalf of the estate of Doseph Pardee, by Emily Howard, administratrix, and disputed by Joseph A. Patrick, administrator of the estate of John W. Pardee. The appeal was heard and appellant recovered judgment for $8398.89 and costs, which was set aside.