Volume 39 — Michigan Reports

<p>Case made after judgment from the Superior Court' of Grand Rapids.</p> <p>Assumpsit. Plaintiffs had judgment below.</p>

<p>Obstruction of street — Injunction.</p> <p>Where an injunction bill avers special injury without explaining what, and the answer traverses the averment, the common formula questioning the bill for want of equity is not enough to raise the point on appeal, that there should have been greater particularity, especially where it is plain that the want of certainty has caused no prejudice.</p> <p>Injunction lies at the suit of a private person to restrain such an appropriation of the site of a street by another person, as leaves no mode of access to complainant’s premises, and otherwise prejudices them.</p> <p>A street that has been established and recognized for more than ten years cannot be shifted unless according to charter and statutory conditions.</p> <p>A defendant to an injunction bill cannot object that the suit was revived against the representatives of his deceased co-defendant, where they themselves have not appealed.</p>

<p> Trover for value of replevied property. </p> <p>Trover lies at the suit of defendants in replevin for the value of property not found on execution issued in their favor for its return. The remedy on the bond is not exclusive.</p>

<p>Boat and vessel law — Bond for restitution.</p> <p>Under the terms of the boat and vessel law (Comp. L., eh. 210) the county clerk’s approval of the bonds offered on obtaining restitution of a vessel seized for debt, is not reviewable by the Circuit Judge upon affidavits contradicting the evidence on which the bonds were approved.</p>

<p> Motion for offset of judgment. </p> <p>Mandamus does not lie to review the discretion of a circuit judge in refusing a motion to allow one judgment to be set off against another.</p>

<p>Exceptions before judgment from Wayne.</p> <p>Embezzlement. Respondent was found guilty.</p>

<p>Error to Superior Court of Detroit.</p> <p>Assumpsit. Defendants bring error.</p>

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

<p>Error to Genesee.</p> <p>Assumpsit. Defendants bring error.</p>

<p>Receiving stolen goods covered by information for la/rceny.</p> <p>Where complaint was made and a warrant issued for larceny and for receiving stolen goods, and the examining magistrate certified that it appeared to him that the said offense so charged was committed -and that there was probable cause to believe the respondent to have been guilty of the commission thereof, it was held sufficient to authorize the prosecuting attorney to file an information charging respondent with a larceny of the property.</p> <p>An examination on a complaint and warrant charging larceny is enough, if the accused is held for trial, to authorize the prosecuting attorney, under Comp. L., § 7935, to add a count for receiving stolen goods. A separate examination on that charge is not necessary.</p> <p>An information does not put the accused on trial for a different offense from that covered by the preliminary examination.</p>

<p>Appeal from Genesee.</p> <p>Bill to set aside mortgage. Defendant appeals.</p>

<p>Mortgage — Undivided parcels.</p> <p>A man mortgaged an undivided two-thirds of certain land without inserting covenants of title or warranty. His wife afterwards .acquired the other undivided third, to which he had no title when he gave the mortgage. Meld, that she could not be made a defendant to a foreclosure bill. The mortgagee’s original rights were not affected, even if the husband furnished the money to pay for the third acquired by her.</p>

Ejectment by Eliza McEarlane for premises to which s’he claimed title, but which had been bequeathed to Clark by George Hebden. The court below found against the plaintiff, and she brings error relying upon alleged .jurisdictional defects in probating the will.

<p>Stockholders — Labor debts.</p> <p>An assistant chief engineer of a railroad company is not a “laborer” within the meaning of the constitutional and statutory provisions making stockholders liable for the labor debts of the corporation.</p>

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

<p>Forfeiture for additional insurance — Waiver.</p> <p>"Where a policy contained a clause of forfeiture for additional insurance, evidence that such insurance was obtained because the insured understood that the original policy was invalid, was held irrelevant in an action on the policy. Breach of a contract is not excused by good faith. But the error of admitting such evidence was held to have been cured by an instruction that the policy was avoided by the additional insurance unless the breach of the condition had been waived.</p> <p>In a suit on an insurance policy it is not error to admit evidence of the basis on which another company from which additional insurance had been obtained, had settled for the loss; such evidence does not prove the extent of the loss as against the defendant company, but shows what has been paid in reduction of its risk.</p> <p>Forfeiture of a policy for additional insurance is waived, where the adjusting agent, with knowledge of such insurance, puts the insured to the expense of making up proofs of loss and requires him from time to time to correct them, without giving him to understand that the company will rely upon the forfeiture.</p> <p>"Whore an insurance policy requires that in making proof of loss the written portion of any policy for additional insurance shall be set forth, the court cannot presume that the statement actually made does not substantially comply with the requirement, if the later policy is not in proof.</p>

<p> Tíme for appealing from decrees entered in vacation. </p> <p>When a decree is entered in vacation, notice must he given to the opposite party under Comp. L., § 1967-8; and the forty days within which an appeal must he taken runs from the date of the notice.</p>

<p>Error to the Recorder’s Court of Detroit.</p> <p>Assault and battery.</p>

<p>Stockholders' liability for labor debts — Act 113 of 1877.</p> <p>Where a stockholder’s liability for a labor debt depended upon his having been a stockholder when the debt accrued, it is enough, in the absence of countervailing testimony, to show that he had admitted being a stockholder before that date, and that the stock book showed no subsequent transfer.</p> <p>If the right to sue a stockholder for a labor debt of his corporation became complete before the passage of Act 113 of 1877, § 35, providing that the corporation might be made a joint defendant, the plaintiff could still proceed at common law under Comp. U., § 2852, against the stockholder alone.</p>

<p> Foreign disabilities from malting contract. </p> <p>An Indiana woman cannot, by pleading disqualification to contract, evade payment oí notes given by her ior goods purchased in Michigan, without showing that the laws of Indiana do so disqualify her. If the notes are authorized by Michigan laws it cannot be presumed that they are void, nor is it conceded that if made in Michigan they would not be governed by the statutes of the State.</p> <p>Judgment cannot be reversed on grounds not based on evidence introduced below.</p>

<p>Appeal from Saginaw.</p> <p>Foreclosure. Defendant Gould appeals from an order allowing defendant Mickles to file a bill of review.</p>

<p>Appeal from Jackson.</p> <p>Divorce. Complainant appeals from an order decreeing him guilty of contempt.</p>

<p>Equitable jurisdiction — Party complainant — Deed by way of security — Possession.</p> <p>The objection that a bill of complaint did not allege that the disputed property was worth $100, and that the court therefore had no jurisdiction, was considered mot where it did allege that the complainant claimed to own it in fee simple, described it as consisting of 360 acres, and stated that defendant had deeded it for the expressed consideration of $15,000.</p> <p>Where one claims that he deeded land in trust to be conveyed as a gift to a person named, and that his grantee deeded it to another, he is a proper complainant to insist that his grantee execute the trust.</p> <p>Mere possession after deeding land is not of necessity notice that the grantor still claims rights in the premises inconsistent with those conveyed.</p> <p>A. deed may be properly taken as security when the amount to be secured is uncertain and depends on future advances.</p>

<p> An award should be signed by the arbitrators together. </p> <p>An award signed by two oí the arbitrators in each other’s presence but not in that of the third, and by the third at a different time and place in the presence of only one of the others, is invalid, will not sustain a judgment, and should be vacated.</p>

<p>Jurisdiction — Joint judgment.</p> <p>Joint judgment may be entered on a joint obligation against parties one of whom is outside of the jurisdiction and cannot therefore be lawfully served. Comp. L., §§ 6116-50.</p>

<p>Sheriff’s deed — Defective recital.</p> <p>A sheriff’s deed on an execution running against two persons is not made fatally defective by the use of the singular number in a recital that under the statutes is not essential to the deed; as by stating that “because sufficient goods and chattels of the said last named person in the said writ could not be found,’’the real estate was seized.</p>

<p> Demurrer for uncertain averments. </p> <p>A bill in equity alleged that a patentee who had sold out his remaining rights to complainant had previously assigned to another person, with whom he is joined as defendant; he had obtained a re-issuo of the patent to this assignee in consideration that the latter would manufacture enough of the patented machines to supply the market, license others to manufacture them, increase and report sales, pay a certain royalty, and prosecute infringers. The bill alleged that the assignee had neglected to, do so; and waiving sworn answer prayed that he account for sales and settlements; that the assignment and re-issue be declared void as to the interests of the patentee and complainant, and that the assignee be ordered to re-assign or assign to complainant, or authorize complainant to prosecute or compromise or settle with infringers. A demurrer to this bill was sustained on the ground that it alleged a vague and contradictory agreement of which specific performance could not be granted, and that the grievances were susceptible of legal remedy.</p> <p>Where answer under oath is waived, no ground of relief can be set up that rests merely on the necessity of a discovery.</p>

Assumpsit on the common counts by David Adler, Henry M. Mendel and Isaac Adler against Edward A. Foster and Oliver 0. Stanchfield.

<p>Error to Calhoun.</p> <p>Proceedings to recover possession of land. Defendant brings error.</p>

Injunction to restrain the collection of a judgment. Complainant alleges that having agreed to take an interest iñ a threshing machine purchased by one Brakefield from the firm of B. F. Dow & Co., he gave his note for $160 to be paid on the original purchase notes which Brakefield had given to Burrall as their agent.

<p>Contracts involving personal association are not assignable — Waste.</p> <p>K owned certain land and W agreed to work it on shares with him, and stipulated that his wife should cook and wash for K. Becoming tired of the arrangement Mrs. W left, and W afterwards assigned his contract to his father, who notified K that his wife was ready to do his work, and entering upon the land, began to cut and remove timber. At about the same time the owner sold the land and his grantee filed a bill to stay waste and obtained relief. The decree was affirmed. The contract was practically rescinded by W’s action and 'no longer bound K; it contemplated personal association, and was therefore not assignable, and the grantee, on obtaining his deed, was justified in proceeding without delay to restrain waste.</p>

<p>Error to Barry.</p> <p>Beplevin. Defendants bring error.</p>

<p>Final ordet — Foreclosure decree for penal sum in bond.</p> <p>An order denying and dismissing a petition made before mortgage sale for leave to file an answer nunc pro tunc is final and appealable. '</p> <p>A decree on mortgage foreclosure for the face of a bond with interest, when the bond is in double the sum owed, is a fraud on defendant’s rights and entitles him to an injunction against a sale under such decree.</p>

Appeal to tbe Circuit Court from tbe rejection by commissioners in probate of a claim against tbe estate. Claimant brings error.

<p>Error to Superior Court of Detroit.</p> <p>Covenant. Defendant brings error.</p>

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

<p>Memoranda — Mutual partnership credits.</p> <p>When a witness swears that he has a complete recollection of the facts, it makes no difference that the memoranda he uses to refresh his memory are not from his own entries.</p> <p>Judicial notice is taken of the mercantile custom of mutual credits under which business establishments furnish each other’s clerks or customers with goods and charge them to each other. It is within the authority of the managing partner to authorize such dealings, and when so authorized they are binding until notice to the contrary.</p>

<p>Error to Bay.</p> <p>Trespass on the case. Plaintiffs bring error.</p>

<p> Joint judgment cannot be entered on separate contracts. </p> <p>The contracts of the maker of a note and the indorser are several and do not warrant a joint judgment upon lawful service on only one.</p>

<p> Burden of proving payment of a destroyed note. </p> <p>A debtor claimed to have paid a note and then destroyed it. His ‘creditor said he destroyed it without paying. The judge thought the burden of proof, if any, was on the debtor, but charged the jury to determine the question of veracity in view of all the facts. This ruling was approved.</p>

<p>Removal of causes — Mandamus.</p> <p>Whore a cause has been regularly removed and the court from ■which it has been transferred assumes to treat it as still within its jurisdiction, and vacates the order of removal, mandamus lies to compel it to vacate the latter order.</p>

Appeal to the Circuit Court from an order assigning the residue of the estate of Mahala Stoddard, under her will. The appeal was brought by the administrator of her daughter, Clara Belle Stoddard. The order of the probate court was affirmed and the administrator brings error.

<p>Motion for farther return to writ of certiorari.</p>

<p> Incest. </p> <p>Incest requires the assent of both parties; if committed by force, and under Comp. L., § 7529 if committed upon a child less than ten years old, the offense is rape.</p> <p>IFornication differs from rape in that both parties assent.</p>

<p> Injunction not granted to restrain a tax-sale for informalities. </p> <p>The sale of lands for delinquent taxes will not be enjoined in equity merely for the neglect of a municipal board of review to attach their certificate to the tax-roll, and of the' chairman of the board of supervisors to sign the certificate of equalization.</p>

<p>Negotiable instruments — Judgments—Comp* L., § 5778.</p> <p>In suits on bills and notes, judgment is authorized by Comp. L., § 5778 to be taken against one or more of the defendants. This does not apply where the note is signed in the name of a company and the defendants, being sued as co-partners doing business under that name, deny its execution and the partnership, and no evidence is given that some of them are at all connected with the company.</p>

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

<p>Error to Superior Court of Grand Bapids.</p> <p>Assumpsit. Plaintiffs bring error.</p>

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

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

<p> Notice of proceedings to lay out a drain. </p> <p>Proceedings to lay out a drain 'without notice to land-owners along the line of it, or an attempt to obtain from them a conveyance and release of damages, are void, and the commissioner’s report is no evidence of notice.</p> <p>When the right to proceed is wholly statutory,- the statute must be substantially followed.</p> <p>Different proceedings cannot be brought up by the same writ of certiorari.</p>

<p>Appeal from tbe Superior Court of Detroit.</p> <p>Injunction to restrain transfer of securities except to complainants. Bill dismissed. Complainants appeal.</p>

<p>Statute of Frauds — Land contract.</p> <p>A verbal executory agreement to deed land is void under the Statute of Erauds, and a promise made in consideration of it is void for want of consideration.</p> <p>L and N agreed verbally that if N would deed land to L’s son, L would give him his note for a certain sum. N deeded the land but L refused to pay. Held that N could not recover from him, as a verbal land contract is void and furnishes no consideration for a promise, and if any undertaking to pay for the land was implied, the grantee was liable upon it.</p>

<p>Mortgage on lands — Tenants’ buildings.</p> <p>A tenant’s erections are not brought within a subsequent mortgage on the premises by the tenant's neglect to remove them on a renewal of his lease by a new landlord.</p> <p>Where one who has leased land to a firm, buys out the right of one of the partners and afterwards gives a mortgage on the premises, the possession of the new firm is notice to the mortgagee that erections put up by the former firm are not covered by the mortgage, because the other partner’s rights cannot be taken away.</p>

<p>Case made from Kent.</p> <p>Assumpsit on a bond for the performance of an award. Defendant had judgment below.</p>

Assumpsit by Ingersoll and Seagraves against Baker for $192.16, being a balance claimed on an undertaking alleged to have been entered into by Baker to pay them for material contracted for by one Caswell, whom he had employed to do work on a house for him. Plaintiffs recovered below and defendant brings error.

Assumpsit by Mrs. Stevenson against Bobinson and Brooks who were claim agents, for bounty and back-pay due her on behalf of her son and collected by them. The general issue was pleaded with notice of the statute of limitations. Defendants had judgment below and plaintiff brings error.

Trover by Grove & Whitney for the undivided half of a steam 'engine and boiler and some planing mill machinery which had been mortgaged to them and is alleged to have been converted and disposed of by Wise, who had bought at bankrupt sale- the premises on which stood the buildings which contained the machinery described. Wise had previously bought the other half interest. Defendant liad judgment below and plaintiffs bring error.

<p> Ejectment to remove obstructions from a public street. </p> <p>A county cannot bring ejectment to remove obstructions from land dedicated to the public use as a street, but held adversely to the public.</p> <p>The county acquires no beneficial ownership of land dedicated to the public use as a street, and cannot dispose of it or control its use or enter into actual possession of it; and when the easement is ended its light ceases.</p>

Case made from Ionia. Assumpsit. Plaintiffs had judgment below as against Aaron Abbey but not as against the other defendant.

<p>Proceedings to lay out a drain — Notice.</p> <p>Notice of the time and place for the appointment of commissioners for laying out a township drain, and of the time and place of their meeting, and of all suspended or adjourned proceedings, must be given in order that parties interested may be present to scrutinize appointments and protect their own interests; otherwise their proceedings are invalid.</p> <p>The necessity of notice is implied in a statute which provides for taking private property.</p>

<p>Error to Ionia.</p> <p>Assumpsit. Defendant Aniba brings error.</p>

<p>Statute of limitations — Joint promisors.</p> <p>A payment by the estate of a joint and several promisor does not prevent another promisor from taking the benefit of the statute of limitations. Oomp. L., § 7165.</p>

<p>Specific performance — Redemption from foreclosure.</p> <p>Specific performance of a land contract cannot be enforced by the seller unless he puts or offers to put the purchaser in possession.</p> <p>A bill in equity is not needed to enable a mortgager to redeem from a foreclosure sale within the period allowed for redemption.</p>

<p>Attachment — Bond—Damages—Special questions.</p> <p>The bond in attachment covers a reasonable counsel fee for defendant on obtaining a dissolution of the attachment.</p> <p>It is not error to refuse to submit to a jury inconclusive special questions, answers to which would not control a general verdict.</p> <p>It is proper to leave the jury, in view of all the evidence, to estimate the injury and loss to the business of a defendant in attachment during the time that plaintiff was in possession of his place of business.</p> <p>A verdict assessing damages is not to be set aside merely because it does not appear exactly how it was made up.</p>

Case made from Kent. Assumpsit by the administrator of Isaac Leonard’s estate upon two promissory notes signed by defendants. One was dated January 10, 1869, and was for $500, “with interest at the rate of ten per cent annually” payable on or before Oct. 15, 1870; the other was dated Jan. 2, 1869, and was for $200 with interest at the rate of ten per cent per annum payable three months after date.

<p> Affidavit of amount due. </p> <p>An affidavit of the amount due when suit is brought is of no force if made several days before suit is begun.</p> <p>When a plaintiff rests his case upon a void affidavit of the amount due, he cannot after the defendant rests, prove his account in the ordinary way unless the court, in its discretion, permits him to do so. He is only entitled of right to give rebutting evidence so far as by evidence in chief he has made any case.</p>

<p>Official bond — Suretyship. ■</p> <p>Sureties are not liable on an official bond signed by them alone, and without their knowledge or consent accepted without the signature of a principal who is named upon its face as the primary debtor. And the burden of proving their consent to its being so accepted is on those who try to enforce it.</p> <p>A township treasurer should be a party to his own official bond.</p> <p>A surety can insist that he will not be bound except upon his own terms and his obligation cannot fairly be extended beyond the scope of his written contract, as under the Michigan statute of frauds his agreement must be in writing.</p>

<p> Case made. </p> <p>A case made must present a finding oí facts and'should point out as clearly as a bill of exceptions the errors relied on for a reversal.</p> <p>The facts cannot be reviewed on a case made except where it is claimed that the finding of the court below was not warranted by the evidence.</p> <p>The Supreme Court is not authorized to draw conclusions of fact in cases at law.</p> <p>' Costs were not awarded where a case made was not fully presented and was sent back for a finding of facts.</p>

<p> Creditors’ bill. </p> <p>William Bailey held his brother Samuel’s note and transferred it to Bunce in a trade, signing himself as joint maker. He after-wards bargained with Samuel for 80 acres of land on which Samuel lived with his wife Hannah, and offered him 320 acres of other jand and a reduction of $500 from the note to Bunce. Hannah consented to the sale only on condition that part of the 320 acres be conveyed to her, and supposing it was done she exchanged her share for 63 acres bought of an outsider. The joint note having been put in judgment against Samuel alone, Bunce filed a creditor’s bill to reach the 53 acres on the theory that Samuel had paid for it and had it conveyed to his wife to secure it. It appeared that William Bailey was the real party in interest in the bill, and sought through Bunce to enforce the collection of the remainder of the old joint note against the land which he had formerly agreed should be conveyed to Hannah. Held that the bill was based on no greater equity than if William were assignee of the judgment and actual complainant, in which case he could not assail Hannah .Bailey’s' title for fraud after being a party to the understanding out of which it arose. The bill was accordingly dismissed.</p>

<p> Entitling amendatory laws. </p> <p>An act purporting by its title to revise certain enumerated sections of an act entitled, etc., and to add several new sections, contained a section not mentioned in the title but corresponding to a section in the revised act. The Constitution requires the purpose of every statute to be expressed in its title. Held that the practice of amending by reference to sections instead of by reference to subjects or the entire statute is not a satisfactory compliance with the constitutional requirement, but that where the amendment is plain and can be carried out, it may be held valid even though the section numbers of the original act and of the amendment are in confusion.</p>

<p> Appeals from probate. </p> <p>Probate proceedings to determine the status of a will, whether in the probate or the circuit court, are summary and statutory, and are not to be regarded as contentious litigation between parties.</p> <p>All appeals from the probate of the same will are directed to the sole issue of its validity, and therefore belong together and are indivisible.. Appellants are all bound alike by the rulings in the probate proceedings.</p>

<p>Error to Eaton.</p> <p>Selling liquor to minors.</p>

<p>Certiorari to Frank D. M. Davis, circuit court commissioner for Ionia county.</p>

<p>Error to Lenawee.</p> <p>Burglary. Despondent was sentenced to confinement at hard labor for two years in the House of Correction at Detroit.</p>

<p>Adultery — Proof of legal marriage.</p> <p>In a prosecution for adultery it is not enough to show the prior marriage of the accused to a woman under the legal age, without showing that she acquiesced in the marriage on arriving at the age of consent and before the offense.</p>

<p>Error to Superior Court of Grand Bapids.</p> <p>Burglary. Despondent was convicted as charged.</p>

<p> Affirmance of decree for weight of evidence. </p> <p>A decree is affirmed where no sufficient reason is seen to disturb the conclusion of the court below upon the preponderance of testimony.</p>

<p> Slander. </p> <p>The rule that the use of slanderous words must be proved as alleged in the declaration does not exclude proof of other words not changing their effect.</p> <p>The rule that repetitions of a slander may be proved to show malice does not limit the evidence to verbatim' repetitions, but allows proof of substantially similar slanders likely to make the same impression on the community.</p> <p>Where error was assigned on the admission of documentary evidence that was proper when introduced, it was not held error that it was left standing after the abandonment of a count had made it immaterial, especially as it had not been read to the jury and no motion had been made to strike it out.</p> <p>Improper reasons for the admission of testimony do not make its admission erroneous if it was admissible at all.</p> <p>In an action for slander there is no error in refusing to admit a neighbor’s testimony that he never heard it.</p> <p>The pecuniary standing of the defendant in a civil action for slander may be shown to prove the influence his word would have in the community; but the jury must be cautioned against allowing such evidence to carry too much weight or in itself to swell the amount of damages.</p>

<p>Error to Montcalm.</p> <p>Trespass on the case. Plaintiffs bring error.</p>

<p> Appeal from commissioners. </p> <p>A claim for money due upon a decedent’s mitten agreement can properly be submitted to tbe commissioners upon his estate, and if disallowed the only remedy is by appeal from them; a bill in chancery is not a proper proceeding.</p>

<p> Stay of proceedings on judgment. </p> <p>An appeal from a justice was dismissed for being taken too late. A special appeal was then allowed on a showing that the judgment had been fraudulently antedated, and as it appeared on this appeal that the judgment itself was void for being entered more than four days after the hearing, a perpetual stay of proceedings was granted. Approved.</p>

Injunction to restrain defendant, wbo had obtained a divorce, from disposing of his real estate. Defendant appeals from an order adjudging him guilty of contempt in not paying temporary alimony.

<p>Error to St. Joseph.</p> <p>Malicious prosecution. Defendants bring error.</p>

<p> Bill in equity to vacate a land-patent. </p> <p>A patent from the State if issued prematurely or on mistake of fact, is only voidable, and conveys a legal title which will support ejectment. But a bill in equity and not an action of ejectment lies to overcome it.</p>

<p>Homicide — Proximate cause of death — Killing in defense of chastity — Threats—Mistake of law does not excuse homicide.</p> <p>Where a fatal wound has been given it is no defense that death, when it took place, was precipitated by medical treatment.</p> <p>'Homicide in defense of a woman’s chastity, is not justified by a belief that the deceased had been using fraudulent, but not forcible means, as by administering drugs, to effect a seduction not accomplished at the time of the killing.</p> <p>Tacts which the respondent in a case of homicide did not know until afterwards are not admissible to justify the killing; but they may be admissible to strengthen other evidence tending to show that it was done in defense of life or person.</p> <p>'Threats will not excuse a homicide where the respondent could not reasonably have supposed that the killing was necessary to prevent forcible felony.</p> <p>A mistake of law as to one’s right to take life will not justify or excuse homicide.</p>

<p>Error to Saginaw.</p> <p>Information for rape. Eespondent was convicted of an assault with intent to commit rape.</p>

<p> Endangering the lives of railway employees. </p> <p>Shooting at a brakeman is cognizable by the general criminal law, and is not within the provision of the general railroad law to punish acts willfully endangering the lives of railway employees or travelers.</p>

<p> Forfeited recognisances. </p> <p>There is no substantial variance between a declaration charging respondent with having “feloniously and burglariously broken and entered” and a recognizance reciting that he “did break and enter.”</p> <p>A recognizance requiring the accused to appear from day to day for examination and not depart the court without leave, is enough to bind him to remain in attendance during the whole examination whether continued from day to day or adjourned over to any time and place within the jurisdiction of the magistrate to specify.</p> <p>A minute made by the police justice upon the files of a case, stating the non-appearance of .the accused and the forfeiture of his recognizance, and ordering his re-arrest, is sufficient evidence of his default in an action on the recognizance, even though the clerk had neglected to transfer it to the record of the court.</p> <p>Secondary evidence of original entries on the files of a police court is admissible if the loss of the files is properly accounted for.</p>

<p>Error to Superior Court of Detroit.</p> <p>Assumpsit. Defendants bring error.</p>

<p>Action for deceit — Replevin—Witness' credibility — Error.</p> <p>Jj bought land from E, gave his note and a mortgage on it, and after improving it had the sale canceled and his mortgage discharged. But while the mortgage to E was yet unrecorded he had mortgaged the land again to a third person without the knowledge of E who recovered damages against him for deceit in asserting that he had not encumbered it. Held that it was not error to admit in evidence the record of the first mortgage, nor to show the value of the improvements, the changes made by L, and the condition of the premises when re-conveyed.</p> <p>One who testifies that he does not know a witness’ reputation for truth and veracity may, if he was called to support him, be asked if he has ever .heard it questioned.</p> <p>Replevin for property transferred under false representations does not necessarily bar an action for damages from the deceit.</p> <p>One cannot complain of errors which do not prejudice him.</p>

<p>Error to Superior Court of Detroit.</p> <p>Ejectment. Defendants, bring error.</p>

<p>Bond — Surety’s liability when principal does not sign.</p> <p>The sole liability of sureties upon a bond which names their principal as an obligor, but which he has not signed, cannot be established without positive proof that they delivered the bond to be operative against themselves alone.</p>

<p>Certiorari to James B. Wilson, Circuit Court Commissioner of Kent county.</p>

<p>Bill of particulars — Bales on commission.</p> <p>In an action on the common counts a bill of particulars as full as the accounts customarily rendered among merchants when they have previously sent invoices is sufficient if not objected to, or if no farther bill is called for.</p> <p>A count for money had and received includes any dealings whereby money due to plaintiff came into defendant’s hands as factor, from sales on commission.</p> <p>Where a bill of particulars in an action on the common counts states the dates and amounts of the several sales and deliveries to the defendant of merchandise to be sold on commission, it is sufficient to indicate the transactions from which arose the claim for money had and received; the claim on account stated, if growing out of these dealings, is governed by the same rule.</p>

<p> Penalty for not obeying mandamus. </p> <p>The flue provided by Comp. L., § 7110, for not obeying a mandamus cannot be imposed for failure merely to make return to an order to show cause.</p>

<p> Certiorari. </p> <p>When a writ of certiorari identifies the documents to be returned, the respondent must return them even though no affidavit is appended to the writ.</p>

<p>Appeal from St. Clair.</p> <p>Foreclosure. Defendant appeals.</p>

<p>Challenges to the array — Witness for prosecution.</p> <p>It is no ground of challenge to the array that the jury-lists were not returned until after the time designated by law.</p> <p>A saloonist fired a pistol through his door in trying to keep a disorderly crowd out. His son and another man were the only other persons inside. Held that on his prosecution for assault with intent to murder, the saloonist was entitled to demand that the prosecution, having subpoenaed the stranger who had been inside, should put him on the stand since it was presumable that he could have given important evidence not otherwise obtainable.</p>

<p>Appeal from Clinton.</p> <p>Bill to redeem lands. Defendant’s executors appeal.</p>

<p>Bankruptcy — Extra-territorial seizures.</p> <p>Goods sold and removed before bankruptcy cannot be seized by a United States marshal outside of his own district, for the protection of the rights of the assignee.</p>

<p>Parol evidence to explain agreement — Municipal corporations— Agreement by private citizen to share expense of public improvements.</p> <p>An oral proposition was made to a common council and acted on. Meld that its recital in the council records would not preclude oral testimony as to what it really was, nor of subsequent conversations in regard to it between the man who made it and members of the council.</p> <p>Where a proposition made to a municipal corporation as to matters within the scope of its powers is accepted with modifications which the proponent assents to, he is as much bound by them as if they had been in his original proposition.</p> <p>A private citizen made án oral proposition to the city council to the effect that ‘if the city would build one-half of a good bridge across the river, he would build the other half.’ Meld (a) that this was not varied by his afterwards saying that ‘ he wanted nothing to do with building it himself: he would rather the city would build it and he would pay half;’ (6) that after the bridge had been built without objection, his representatives could not resist a claim against his estate for the payment of his share on the ground that the agreement to build a “good” bridge was too indefinite.</p> <p>Where a citizen offers on certain conditions to open a street across his land for the public use, the acceptance of the offer by the proper authorities is a sufficient 4eelaration of its necessity as a public improvement, if such a declaration is needed.</p> <p>A private owner proposed to the common council to open a public street across his land if the city would help bridge a stream which it would cross. Held that if the charter did not hinder, • the council could accept such a proposition, and that the mere fact that the measure would benefit the lands of the owner made no difference.</p>

<p> Costs cannot exceed damages in action for slander. </p> <p>Ro more costs than damages are recoverable in an action for slander.</p>

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

<p>Error to Superior Court of Detroit.</p> <p>Assumpsit. Plaintiffs bring error.</p>

<p>Assumpsit — Implied contraéis — Constructive or quasi contracts— Set-off — Comp. L., ch. 43.</p> <p>Where it-is understood between the parties to a transfer of partnership interests that rights of action are transferred, and they act accordingly without objection, a third party can hardly dispute the completeness of the assignment where there is no evidence of hostile title.</p> <p>The right of set-off is purely statutory.</p> <p>Assumpsit does not necessarily imply a contract but may lie where some duty would justify the court in imputing a promise to perform it.</p> <p>Assumpsit, under Michigan statutes, may lie on judgments and sealed instruments (Comp. L., § 6194); for penalties and forfeitures (id., § 6841), and at the suit of highway commissioners for money laid out on bridges required to be maintained by private parties.</p> <p>A claim for log-driving under Act 221 of 1863, though it supports an assumpsit, is not based on implied contract.</p> <p>Express and implied contracts do not differ in nature but in the mode of substantiation, and neither can arise unless the parties sustain contract relations and are in “privity” with each other.</p> <p>The privity essential to a contract must proceed from the will of the parties, though there may be privity by operation of law where there is no privity of contract.</p> <p>■Contract relations require that the parties be consenting bargainers personally or by delegation, and must be manifested by some intelligible conduct, act or sign.</p> <p>Ho implied contract or promise rises from a spontaneous service done as an act of kindness and without being asked, or where it is accounted for on more likely grounds than a promise of payment.</p> <p>logs were sold to be taken in the stream, but the vendor insisted that the purchasers gather them in their boom for scaling and the latter assented. Held that the purchasers could not, on so doing, claim a set-off as for services rendered.</p>

Information for murder. Respondent was convicted below and sentenced to sixteen years’ imprisonment at hard labor in the State prison.

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

<p>Error to Berrien.</p> <p>Ejectment. Plaintiffs bring error.</p>

<p> Attachment. </p> <p>An affidavit for attachment is bad if it states only that the affiant believes that the debtor is about to remove his property, and does not state that he has any reason to believe it.</p> <p>An attachment does not bind property sold between its issue and levy.</p> <p>Where one who buys from an attachment debtor after' the attachment is sued out but before it is actually levied, promises that he will pay the attaching creditor’s claim, the promise does not render the property liable to execution even if it places the purchaser under a personal obligation to the debtor; the creditor is a stranger to it and cannot take the property.</p> <p>An obligation not to avoid a valid lien differs from a promise to pay a third person a debt that is entirely unsecured; such a promise is binding only as between the parties to the agreement.</p>

<p>Measure of damages — Judgment on certiorari.</p> <p>A contractor promised to deliver wheat at a certain time, but did not do so, and after repeated subsequent demands and promises was sued. Meld that damages for failure to deliver it were properly fixed by the price at the time he last promised.</p> <p>Where a case is removed from a justice’s court by certiorari, and the circuit court approves the justice’s judgment, the sureties of the plaintiff in certiorari are included in it by entering judgment against all, adding interest to the date thereof, and giving judgment anew for the gross sum.</p>

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

<p>Error to Superior Court of Detroit.</p> <p>Civil action eor libel. Plaintiff brings error.</p>

<p>Ejectment by administrator — Tenant at ' sufferance — Estoppel— Notice to quit.</p> <p>An. administrator can bring ejectment for land which he has acquired by the foreclosure of a mortgage left by bis intestate.</p> <p>A tenant at sufferance is one who entered under lawful title and holds over without right and by reason of his landlord’s laches after the termination of his interest.</p> <p>The notice to quit to which a tenant at sufferance is entitled cannot be claimed by one who has asserted any title that directly or impliedly negatives the right to put an end to his interest.</p>

<p>Revocation of probate — Presentation of foreign probate.</p> <p>Probate courts cannot divest or decide on rights of property vested under proceedings valid on their face.</p> <p>Where the execution of a will has been conclusively established and it has been regularly probated, and a later wiE is afterwards produced which does not revoke the former one in terms, the question of revocation cannot be determined in a mere proceeding for the probate of the later will if there is any room for a dispute as to construction. And if probate is allowed, the former probate should be left to stand for what it is worth, and its effect may be decided elsewhere.</p> <p>Legal proceedings bind only parties and their privies, and though proceedings in rem bind every one, they must have been commenced by some authorized person.</p> <p>The foreign probate of a will cannot be allowed if not presented by an executor or other person interested in the will; and no other person can be “aggrieved” by the decision and therefore entitled under Comp. L., § 5216, to appeal from it.</p>

<p>Appeal from Cass.</p> <p>Bill to set aside foreclosure proceedings, and to redeem. Defendant appeals.</p>

Garnishment. Plaintiffs assign error on a judgment of the circuit court reversing on certiorari the judgment of a justice against the garnishee.

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

<p>Appeal from Berrien.</p> <p>Foreclosure. Defendant appeals.</p>

<p>Mandamus — Garnishee disclosure.</p> <p>Mandamus lies to vacate interlocutory orders requiring a garnishee to surrender to a receiver certain notes left with him for collection by one of the principal defendants, and to pay the receiver all sums actually collected thereon, where the garnishee’s disclosure does not show that the notes actually belonged to the defendants or to either of them.</p> <p>Where a garnishee’s disclosure is not satisfactory, the only authorized course is to proceed under Comp. L., § 6167, to obtain a farther disclosure; otherwise the case must rest on the showing as first made.</p> <p>A disclosure that does not show that a garnishee had or controlled any personal property belonging to the principal defendant, or was indebted to him, will not support a judgment against the garnishee.</p>

<p>Error to Hillsdale.</p> <p>Garnishment. Garnishee defendant brings error.</p>

<p>Conversion — Measure of damages — Entry of final judgment.</p> <p>An agreement was made between A and B by which B was to sow A’s land and harvest and haul to market such part of the produce as A should direct, and as to a crop already planted B agreed to “put the product in market” and was to receive half the proceeds when it should be sold. It was also provided that neither should dispose of undivided common property without the other’s consent. Held that the contract required B to deliver the wheat in market, but did not give him any authority to sell it, and that any attempt to dispose of it by sale or by storing it in a third person’s granary was a conversion. The case was not one of leasing on shares with the rights usually belonging to such an arrangement.</p> <p>In an action for the conversion of certain wheat by one of the parties to a contract under which the proceeds of its sale were to be shared, evidence that the barn containing the rest of the wheat had been burned and the other party had received the insurance would be inadmissible to show an offset or by way of defense.</p> <p>Where one of the parties to a contract converts property the proceeds of which were to have been shared equally with the other, the latter is entitled to recover one-half the market price at the time and place of conversion.</p> <p>Final judgment cannot be entered by the Supreme Court in an action for conversion where there is no means, of knowing how the jury made up their verdict.</p>

<p>Account stated — Bill of particulars — Interest,</p> <p>An account stated, or a note given for the amount, need not cover all dealings or dealings .on both sides.</p> <p>In an action on a promissory note given for the balance on a struck account, a counter-claim that has not been settled cannot be proved under notice of set-off, without being set out in a bill of particulars.</p> <p>There is nothing to prevent parties to a note from allowing back interest upon the debt at the same rate that would be lawful for the future.</p>

<p>Deed — Reservation—Stipulation for rent.</p> <p>A reservation of “the use and occupancy” of the land during the lifetime of the grantors, followed by an agreement by the grantee ‘to use, occupy and enjoy the'right reserved, and to pay therefor all tases, together with a stipulated rent ’ was construed in accordance with the practical construction shown by the continuous occupancy of the grantee, who had, however, ceased to pay rent, to mean that the use and occupancy were to be made available to the grantors through the use by the grantee, who was to make during the grantors’ lives a stipulated payment which they called rent, but which was really a charge on the land, the failure to pay which would forfeit neither the estate nor the right of possession</p>

<p>Assignee’s responsibility — Privilege of witness — Replevin—Evidence of value.</p> <p>An assignee of goods, bringing replevin against a constable who had levied on them under an execution against the assignor, may be cross-examined as to whether he was' not wholly irresponsible at the time of the assignment, if the purpose is to show that it was a fraud on creditors.</p> <p>A witness has no privilege that excuses him from testifying to relevant facts that show him to be guilty of fraud or dishonesty, if not criminal.</p> <p>Where questions are excepted to on the ground of privilege, the objection cannot be raised for the first time in the Suprome Court that they were not proper cross-examination.</p> <p>In replevin against a constable for goods, the defendant may show their market value by testimony that he had sold them publicly after full notice to those who would be likely to become bidders, and that they brought only certain sums.</p> <p>In replevin against a constable for goods levied on, the question whether defendant was indemnified in making levy, and also, by whom, is irrelevant.</p>

<p>Taxes raised in unorganised counties — Act 178 of 1861.</p> <p>It is contrary to the tax system of Michigan to levy taxes to accumulate funds for the future.</p> <p>It has been the policy of the State to leave the financial arrangements on dividing municipalities chiefly to the business discretion of the administrative authorities rather than to the courts.</p> <p>Whether the proviso in Act 178 of 1861 that local taxes raised in an unorganized county shall be expended within its territory is not sufficiently complied with by expending them for its benefit, as for school, bridge or highway purposes, even though not strictly within its boundaries — Q.</p> <p>Act 178 of 1861 provides that local taxes levied in an unorganized county attached to an organized township shall be expended - -within the limits of the unorganized territory. Held that no provision is made for ascertaining the respective shares of money not so expended, belonging to the -different townships' created out of such territory after it is detached.</p> <p>No form of action is provided for recovering the amount of local taxes levied in an unorganized township and not expended within its limits.</p>

Appeal to the circuit court from the allowance by commissioners in probate of ,$196.88 on a claim by George G. Torrey against the estate of his wife’s sister, Sarah Ann Young, for board, lodging, washing, fuel, light, nursing and other services furnished to her. The circuit judge instructed the jury to find for the estate and disallowed the claim, and the claimant brings error.

<p>Error to Lapeer.</p> <p>Assumpsit. Defendants bring error.</p>

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

<p>Appeal from Berrien.</p> <p>Bill to compel execution op deed. Dismissed. Complainant appeals.</p>

<p>Insurance — Misdescription of risk.</p> <p>An insurance company sued to recover back certain moneys paid on a loss, on the ground of a misdescription of the risk and deceptive proofs of loss. The premises had been held adversely to the insured, who however had recovered against the holder on a first trial in ejectment, but had not taken out a writ of possession.- The application for insurance was verbal and was made by the applicant’s attorney who told the insurance agent of the ejectment suit and its result, and that the defendant had a right to a new trial. The agent filled out the policy, describing the premises as occupied by a tenant. Held that the case should have gone to the jury.</p>

<p>Trespass on the case for malicious prosecution. Defendant brings error.</p>

<p>Constitutional law — Sale of animals found running at large.</p> <p>Testimony is admitted, as tending to establish a case or a defense, and it is therefore no error to charge the jury that it tends to do so.</p> <p>A statute allowing animals running at large in a public highway to be taken by any person and publicly sold by a public officer, and providing that after the expenses of the proceedings and of keeping the animals were paid, the remainder should be paid over to their owner, who should be allowed a certain time within which to redeem them, is to remedy a public grievance and is not unconstitutional as divesting property rights without due process of law.</p>

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

<p>Gase made from Kent.</p> <p>Debt on official bond. Defendant had judgment below.</p>

<p>Appeal from Manistee.</p> <p>Bill to restrain foreclosure and compel discharge of mortgage. Complainants appeal.</p>

Appeal to the Circuit Court from an order of the Probate Court dismissing a petition by Ann J. Kelly, executrix of the will of Lola Reynolds, asking for the assignment to her, as executrix, of one-third of the residue of the estate of decedent’s husband John Reynolds, such' portion of the estate being held by his executor William Reynolds. The Circuit Court affirmed the order, and the petitioner brings up the proceedings by writ of certiorari;

<p>Equitable mortgage — Change of possession — Notice.</p> <p>An instrument securing a single creditor out of several, on property ■which by its terms can be disposed of only to pay the secured debt, is an equitable mortgage and not an assignment for the benefit of creditors and can be avoided only for actual fraud.</p> <p>An immediate and continuous change of possession into the hands of a mortgagee is the best possible notice of his rights as against all others.</p>

Garnishment in justice’s court in which judgment was entered against the garnishee. The case being removed on writ of certiorari to the circuit court, the judgment was affirmed and the garnishee brings error.

<p> Service. </p> <p>The return of service endorsed upon a declaration recited that the sheriff “served the declaration of which the within is a true copy” * * by delivering, etc, “a true copy thereof, and of the foregoing complaint and the notice relating thereto.” Held that the use of the word “-complaint” was an immaterial error and did not affect the showing of due service.</p> <p>The sheriff certified “that on the 9th day of Sept., 1876, he served the declaration of which the within is a copy on John O. Hammond, and on the 11th day of Sept., 1876, he served on the defendant, Erastus L. Hammond, * * by delivering to said defendant,” etc. Held that as the entire return clearly showed that service was made on both defendants, the omission to add the letter s to the word “ defendant ” did not fatally affect it.</p>

<p>Error to Washtenaw.</p> <p>Appeal from the decision of commissioners in probate disallowing claims against Eosier’s estate. An issue in assumpsit was framed and the claimants had judgment. The administratrix of the estate brings error.</p>

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

<p>Pleadings — Sales—Consideration—Waiver.</p> <p>A justice’s return set forth, that “the plaintiff declared ver. lly against said defendants on common counts in assumpsit, and also on breach of a written contract, now on file in court, in all for $300 or under.” Meld a sufficient declaration to warrant the admission of the contract in evidence.</p> <p>Parties made an agreement for the sale of the “stock” of one of them to satisfy a debt. In a suit involving the agreement, evidence was given of the sale of a certain horse under it. Held that the question* “What other property was sold?” was admissible, for it was proper to show the sale of other property that would be included as part of his stock; also that as the notice of sale agreed to by all parties included vehicles, hay, etc., it amounted to a practical contemporaneous construction, and that the evidence therefore could not be limited to live stock.</p> <p>One who entered into an agreement for the sale of property on which he had a lien for the payment of a debt, is not relieved from liability under the agreement by the failure of bidders to comply with the terms of the sale. If bidders were responsible they should be made to pay, and if not, the property should have been immediately put up again to be resold to a responsible bidder, or retained until a different arrangement could be made.</p> <p>Where a debtor and one who holds a mortgage on his property agree with a subsequent mortgagee that it should be put up at auction to satisfy the'latter’s claim, there is sufficient consideration to support the agreement in the necessary waiver of mortgage security.</p>

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

Joseph. Appeal by the widow and heirs at law of John M. Belote from the ruling of the probate court allowing the administrator’s' claim for money paid to the widow to release her dower right to lands sold under a probate license. The circuit court rejected the allowance and claimant brings error. ■

<p>Practice — Foreclosure—Stay of proceedings at law.</p> <p>The pendency of foreclosure proceedings in chancery is no defense upon the merits toan action at law, but as the legal action is forbidden unless the leave of the court of equity is obtained (Comp. L., § 5149) the proper way to take advantage of the pendency of the foreclosure is to move the court before going to trial, for a stay of the legal proceedings.</p> <p>Leave to proceed at' law while foreclosure is pending in chancery ought not to be granted ex parte where defendant is within reach.</p> <p>Whether a complainant in foreclosure should be permitted to proceed at the same time at law is not a question for a jury.</p> <p>Proceeding at l^w without leave while a foreclosure in chancery is pending, is an abuse of practice; but it does not invalidate the judgment, which may be affirmed with costs without prejudice to relief below against the wrongful procedure.</p>

<p>Consideration — Nudum pactum.</p> <p>The firm of A & B, through B, borrowed from Mrs. B and gave notes payable to other persons whom A supposed to be the lenders. Two of these notes were payable to 0. In a suit by-Mrs. B. for the money lent, it was held inadmissible for A to show in defense that he had made an arrangement with C whereby the latter was to look to B for payment of one of the notes, if he, A, would pay the other, and that he did pay it. 0’s promise was nudrnn pactum.</p>

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

<p>Exceptions before judgment from Midland.</p> <p>Murder. Respondent was convicted of manslaughter.</p>

Exceptions before sentence from the Becorder’s Court of Detroit. Conspiracy to defraud by false pretenses. The information charged that Henry W..

<p> New trial in criminal cases. </p> <p>If a criminal case is taken up on exceptions before sentence, and there is doubt as to the force of the evidence, the accused is not necessarily discharged, but the case may be remanded for new trial.</p>

<p>Appeal from Wayne.</p> <p>Mechanics’ lien. The petition for the enforcement of the lien was dismissed, and the petitioners appealed.</p>

<p>Agency — Proof.</p> <p>Where an alleged liability is based on papers, and there is no attempt to show that they were executed by the person against whom it is asserted, there can be no recovery against him on a theory of agency, the dealings having all been had with another and on the latter’s credit.</p>

<p> Attachment —Non-residence. </p> <p>One who stays most of his time in this State, but claims that his home is in another State from which he came, and where his wife lives, and who frequently visits and lives with her, is a non-resident subject to attachment.</p>

<p>Error to Lapeer.</p> <p>Assumpsit. Defendants bring error.</p>

<p> Parol evidence inadmissible to impeach an indorsement. </p> <p>An indorser cannot defend on evidence of an oral agreement made at the same time as the indorsement, introduced to change its legal import and convert it into an imdertaking resting on outside conditions.</p> <p>Parol evidence is admissible as to the consideration of an indorsement, or to show that it was obtained by fraud or merely to facilitate collection, or had been fraudulently perverted.</p>

<p>Evidence of facts known, to deceased opponent — Comp. L., §5955— Estoppel in pais.</p> <p>A corporation is distinct from the corporators, and in a suit brought by the estáte of a deceased person against a private .corporation the corporators are not precluded from testifying to matters equally known to deceased.</p> <p>Where an estoppel in pais is relied on, the facts that support it must be clearly made out. ■</p>

Bill and Cross-bill to remove cloud from title. Decree was granted in favor of the complainant in the original bill, and the cross-bill was dismissed. Devinney, being defendant in the original bill and complainant in the cross-bill, appealed.

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

<p>Insurance — Installment notes.</p> <p>A note cannot be enforced that is payable by installments in advance and is given for the premium on an insurance policy that is to be wholly void during any period of default in payment, but revives on payment of the installment.</p>

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

<p>Railroad companies — Contributory negligence.</p> <p>Recovery cannot be had for the fatal negligence of a railway company, when the deceased, who was familiar with the locality and knew that trains passed frequently and that they ran irregularly, stood on the track at nightfall, stupided and confused with liquor, before the approaching headlight of a slowly-moving locomotive.</p>

Goods were taken from Parsell under a writ of replevin that did not describe them, the only description being in the affidavit annexed. The writ was accordingly quashed as void, and Parsell waived return and asked an assessment of damages, which was refused for want of jurisdiction, the writ being void. He applied for mandamus to compel an assessment.

<p>Error to Superior Court of Detroit.</p> <p>Assumpsit. Plaintiff brings error. •</p>

<p>Exceptions certified before sentence from the Recorder’s Court of Detroit.</p> <p>Receiving stolen goods. Defendant was found guilty.</p>

<p>Error to Saginaw.</p> <p>Murder. Eespondent was found guilty and sentenced to solitary confinement in tbe State Prison for life, at bard labor.</p>

<p>Corporations — Labor debts — Extension of time.</p> <p>The constitutionality of statutes -will not be passed upon where the case can be determined without doing- so. "</p> <p>A finding that a defendant is not a stockholder within the meaning of Comp. L., § 2852, defeats an action under that statute against him for labor debts of the corporation.</p> <p>Extension of time on orders issued by a corporation to laborers defeats an action on them under Comp. L., § 2852 against stockholders.-</p>

<p>Commissioner of highways — Bids for public work.</p> <p>All persons contracting with a public officer for public work are bound to take notice of the provisions of the statute under which the work is let.</p> <p>A de facto commissioner of highways let a job without requiring the bidders to offer security at the time of letting, and without finishing the contract then or adjourning the proceedings to some stated day. The successful bidder seme days afterwards refused to sign the contract, and the commissioner, without acting publicly, gave the job to the next higher bidder. Held that the proceedings did not conform to the statute, and that the township treasurer could not be compelled to. pay the order issued by the commissioner to the contractor.</p> <p>Mandamus was granted to compel payment of a proper order made upon the township treasurer by a commissioner of highways who was performing the duties of his office though he had not filed an official bond.</p> <p>Costs were denied on refusing a writ of mandamus where the application covered two distinct cases in one of which the writ was granted.</p>

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

<p>Laches — Irregularities in chancery subpoena.</p> <p>After the lapse of nearly a year from entry of a decree after an order pro confesso on personal service, advantage cannot be taken of such defects as that the subpoena served was signed by the deputy register in his own name; that it described the complainant as “Nelson Creveling of Minnie J. Boudman,” while the decree was in favor of “Nelson Creveling, guardian of Minnie J. Boudman;” and that the copy of the subpoena served was not subscribed by the complainant or his solicitor or by the officer making service.</p>

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

<p>Service — Plea to the merits.</p> <p>A defendant appeared and pleaded to the merits. The constable then amended his return so as to show that the service was had. Defendant did not ask leave to withdraw his plea, hut moved to dismiss, and his motion was properly denied, as his pleading to the merits raised an issue and made the question o£ service of-no importance.</p>

Joseph county. • Appeal from an order of the probate court appointing Daniel Gillett administrator of the estate of Harriet L. Bradley. Decedent’s sole property was a mortgage made to her by her brother Thaddeus Wilson, to secure his note for money lent to him by her.

<p>Appeal from Kent.</p> <p>Bill for appointment of receiver. Dismissed. Complainant appeals.</p>

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

<p> Discharge of covenant in a lease. </p> <p>A covenant in the lease of a wooden building, binding the landlord to rebuild in case it bums, is released by the passage of a valid municipal ordinance forbidding the erection of wooden buildings.</p>

<p>Appeal from Kent.</p> <p>Foreclosure. Complainant appeals.</p>

<p>Error to Clinton.</p> <p>Assumpsit on bond. Plaintiff brings error.</p>

Assumpsit on special and common counts on appeal from a justice in an action brought by Mrs. Lee against Briggs upon a bond made by Harry T. Howe, with Briggs as surety, conditioned for the annual payment to Mrs. Lee of $50 during her life time, and providing that if Howe should fail in making payment at the time stipulated she should give notice to Briggs within five days afterwards, but that if she did not give him notice he should be released from payment,' though only…

<p>Corporations — Liability of stockholders to “ laborers."</p> <p>An agreement actually carried out is none the less a contract because the parties differed as to its terms when they tried to state them in writing, and carried it out without doing so.</p> <p>The constitutional liability of stockholders for labor debts of the corporation can only be enforced'in equity, if it can be enforced at all without legislation.</p> <p>Stockholders are only collaterally, not primarily, liable for labor debts of the corporation.</p> <p>The conditions of the statute that makes stockholders liable for labor debts of the corporation must be fully complied with, and they restrict recovery to the amount of stock owned: courts cannot enlarge a surety’s liability beyond the plain terms of his suretyship.</p> <p>A contractor for preparing and completing the road-bed of a railroad is not a “laborer” within the meaning of the provisions which make stockholders liable for labor debts.</p>

<p>Error to Superior Court of Detroit.</p> <p>Ejectment. Defendants bring error.</p>

<p>Error to Superior Court of Detroit.</p> <p>Trespass on the case. Defendant brings error.</p>

<p>Plaintiff in attachment cannot maintain replevin — liehearing—Assignment of errors — Estoppel.</p> <p>An officer has no authority to deliver property which he has attached to the plaintiff in attachment while the suit is still pending; and the plaintiff cannot maintain replevin for it.</p> <p>A ease must be reheard, if at all, on the record, and not on affidavits explaining the facts.</p> <p>When an attachment proceeding has gone down, the officer still holds the property until notified, or until he learns that the suit is discontinued.'</p> <p>An exception to a charge may be supported in the Supreme Court by the assignment of any reasons which the record will justify, whether'ithey were stated in the court below or not.</p> <p>The assertion of a valid ground of defense does not preclude reliance on a different one that is equally valid and is consistent with it.</p>

<p>Trust for the benefit of an heir — Bill to quiet title.</p> <p>The probate court may be required to make partition of lands devised by a will dividing the real estate among the heirs; but the partition ■ does not change the nature of the title to each share.</p> <p>Executors have authority under an active trust imposed on them by a will, to sell the share of land falling to an heir, control and invest the proceeds, and use them.-for the support of the heir.</p> <p>One who has bought land from an executor empowered by the will to sell it for the heir’s benefit, can maintain a bill to quiet his title as against one who has purchased the same land at a sale on execution running against the heir; and the sheriff is a necessary defendant, in order to prevent the execution of his deed.</p>

<p>Injunction bond — Liability of surety’s estate.</p> <p>A bond for an injunction is a joint contract that after a surety’s death will support a claim against his estate as if it were joint and several. Comp. L., § 4438.</p> <p>A joint debtor cannot be compelled to wholly reimburse another who has paid the joint debt, unless ns between themselves the latter is surety.</p>

<p>Appeal from the Superior Court of Detroit.</p> <p>Bill to redeem mortgaged premises. Defendant Elsie A. Booth appeals.</p>

<p>Error to Shiawassee.</p> <p>• Trespass for fishing in plaintiff’s lake. Defendant brings error.</p>

<p>Infants not personally liable for deficiency on foreclosure of mortgage made by guardian — Equity practice — Supplemental bill — Amendments—Costs.</p> <p>An infant cannot be personally liable on a bond made by another as guardian.</p> <p>Complainant in foreclosure is a stranger to any agreement binding an infant defendant to the' other defendants, or to any settlement of accounts between them, and cannot sue upon such an ' agreement or settlement in order to obtain a personal decree against the infant for a deficiency.</p> <p>It is irregular practice for a guardian ad litem of an infant defendant in foreclosure to join in an answer with other defendants.</p> <p>Tacts of which complainant has learned since filing his bill, but which occurred before, are not matter for a supplemental bill but for an amendment.</p> <p>The guardian or attorney of an infant defendant in foreclosure has no implied power to stipulate for the introduction of evidence of facts occurring since the filing of the bill.</p> <p>A stipulation in a foreclosure proceeding for the introduction of evidence of facts that have occurred since the filing of the bill, is inoperative if it does not state what kind of facts are to be given in evidence.</p> <p>An infant’s guax-dian cannot bind the ward for a loan, nor make him liable jointly with any one else who is to have part of the money borrowed.</p> <p>A minor ward’s estate cannot be made security for debts contracted by the guardian, if the money was not advanced to the minor’s account; and the creditor would have to see to the apportionment of the loan before he could look to the minor’s estate for any part of his advances.</p> <p>Courts of equity cannot create contracts any more than courts of law. ></p> <p>A decree of foreclosure against an infant’s land on a mortgage made to her guardian, expressly reserved the equity concerning her ■ personal liability for future disposal, and the infant did not appeal. Held that the reservation left the last decree as a final decree on that equity and involved the whole record, and that on prevailing on an appeal from the final decree the infant was entitled to all costs and not merely to those accruing after the sale on the foreclosure decree.</p>

Mandamus. Bolator claims that on the 3d of May, 1875, he was elected for four years a member of the board of education of Port Huron by a resolution of the common council; that on August 5th, 1878, the council adopted a resolution removing him and several others from their positions as school inspectors, and that the board has since refused to recognize him as a member.

<p>Error to Superior Court of Detroit.</p> <p>Trespass on the case for libel. Plaintiff brings error.</p>

<p>Appeal from Saginaw.</p> <p>Judgment creditors’ bills. Complainants appeal.</p>

<p>Agent cannot malte promissory note for corporation without authority — Notes made by the agent payable to himself — Partnership. liability cannot be shown under a declaration upon notes in a corporate name — Cross-examination.</p> <p>A general agent, without being specially empowered so to do, has no authority to make promissory notes in the name of his principal.</p> <p>A Michigan mine belonged to a corporation whose financial office was in New York. The general agent in Michigan was accustomed to indorse the company’s paper for collection or discount, and to draw on the treasurer in New York for the current needs of the corporation, and his drafts were duly paid. Meld that this could, not imply authority in the agent to make promissory notes in the name oí the corporation.</p> <p>A. general agent in Michigan and a financial officer in New York were the only stockholders having beneficial interests in their corporation. The agent made promissory notes in the corporate name. In a suit to collect them the holder claimed that the corporation had had no meetings for several years; that the agent in Michigan had managed the business exclusively there, and that-he and the officer in New York, who acted as president and treasurer, had conducted affairs as if they were partners, and ought therefore to be held as having fully authorized each other to exercise all powers that partners might exercise. Held that as it did not appear that plaintiff was influenced by the neglect to observe the formalities of a corporation, and as there was no pretense that he had dealt with them as partners, but the notes declared on purported to be corporation notes, the facts stated were immaterial, and plaintiff must make out a case on grounds which would establish a corporate, not a partnership, .liability.</p> <p>Where an agent makes negotiable paper in the name of his principal, payable to himself, the fact that thus on the face of the paper, he appears to be acting in two capacities, one of which may be antagonistic to the other, imposes upon the party taking the paper the obligation of special care in inquiring into its authority.</p> <p>It is competent for a corporation to show, in making defense to paper issued in its name' but alleged to be unauthorized, that immediately on its existence becoming known, its validity was formally repudiated.</p> <p>The mere act of conferring an authority that may be properly delegated does not constitute such negligence as to make one innocent party who confers such power responsible for a loss caused to another by the agent’s dishonesty; nor can he be responsible if the other party has been negligent.</p> <p>In-an action on promissory notes made by an agent, the principal question related to the agent’s authority, but the plaintiff, who called him as a witness, did not examine' him as to his signature to the notes and did not introduce the notes until after he was examined. Held proper, notwithstanding, so to cross-examine him as to bring out the whole truth.</p> <p>The defense cannot be compelled to give credit to plaintiff’s witness as its own in order to obtain the explanation of facts constituting plaintiff’s case, where the plaintiff has omitted part of them in examining him; but is entitled to cross-examine him as to all the facts where the whole transaction is at issue.</p> <p>It is proper on cross-examination of a party to ask whether he had not admitted fraud in the transaction at issue, as the question bears directly upon the trustworthiness of his evidence.</p>

Schermerhorn against the estate of Frederick Basom, for services in taking care of -her mother, Mrs. Basom. The claimant recovered judgment and the administrator of the estate brought error.

<p>Appeal from Kent.'</p> <p>Foreclosure. Complainant appeals.</p>

<p>Error to Superior Court of Detroit.</p> <p>Assumpsit upon a promissory note against'the Hamtramck Iron Works as principal and Anna E. Russel as indorser. Mrs. Russel brings error.</p>

<p>Appeal from the award of commissioners and order of confirmation on the petition of the Chicago & Northeastern Bailroad Company to the Circuit Court for Ingham County for the appointment of commissioners to determine the necessity of taking a specified parcel of land for the use of the company, and the damages to be allowed the persons interested in the land. The claimants of the land appeal from the award and order of confirmation.</p>

Case made from Ionia. Assumpsit on special and common counts by Frances E. Basom, as assignee of the distributive shares of certain heirs of Timothy DeGraw, against the administrators of his estate, to recover the amounts adjudged by the probate court as due to the distributees.

<p>Appeal from Cass.</p> <p>Foreclosure. Bill dismissed. Complainant appeals.</p>

<p>Error to Wayne.</p> <p>Trover against a garnishee. Plaintiff brings error.</p>

<p>Stipulation — Order of confirmation not appealable — Repeal of general incorporation law — Contracts with corporations — Corporations can bring suit within three years after expiration of franchises — Act á3 of 1875 — Canal and harbor improvement companies.</p> <p>.A stipulation that final decree shall be entered on the report of a special commissioner, for the amount found due by' him, and that it shall not be appealed from, is conclusive on the parties and takes the controversy out of court for all purposes except the entry of the decree: and the court cannot require the delay of an order nisi for the confirmation of the report, nor allow exceptions to it.</p> <p>Appeal does not lie from an order confirming the report of a special commissioner on a reference to ascertain the amount due between parties.</p> <p>The repeal of a general incorporation law authorizing the formation of corporations for definite periods, does not necessarily shorten the corporate existence or destroy all corporate franchises.</p> <p>Contracts made with a corporation created by a special charter for a specified term of years rest on the implied condition that the corporate existence would last as long as the charter declared; and the purpose of granting three years for closing up their affairs (Comp. L., § 3435) was not to limit, but to enlarge the corporate privileges so that they might continue business throughout the whole charter period.</p> <p>A corporation in Michigan can begin legal proceedings in its own name at any time within three years after the expiration of its franchises (Comp. L., § 3435), and can continue them to a close unless superseded by trustees or receivers.</p> <p>Act 43 of 1875 repealing the Act for the formation of Canal and Harbor companies (Comp. L., eh. 84) provides that they shall “continue to have legal existence for the purpose of closing up their business only in accordance with the provisions ” of Comp. L., ch. 130. ' Held that under Comp. L., § 6623, this reference to chapter 130 is too indefinite to cut off their right to the enforcement of a decree in their favor, even though the proceeding is continued beyond the.period of three years from the expiration of their corporate franchises allowed all corporations for closing up their affairs.</p>

<p>Demurrer — Enforcement of guaranty,</p> <p>A court cannot render final judgment on the whole record upon demurrer to certain counts in the declaration, while an issue of fact is pending on other counts.</p> <p>A declaration on a guaranty of the collection of a note is demurrable if it does not state that legal proceedings have been taken to enforce collection without effect.</p> <p>A guarantor of the collection of a note cannot be sued until' legal proceedings to enforce its collection have been taken against the maker of the note without effect.</p>

Case made from Ionia. • Appeal from the award of Commissioners on the estate of Nancy Jane Simpson, allowing a claim against the estate for an unpaid balance due for lands bought by her of the claimant. The Circuit Court confirmed the award.

<p>Larceny from the person — Resistance of accused when arrested— Assignments of error — Weight of testimony — Reasonable doubt.</p> <p>In a prosecution for larceny of a watch, from a man asleep, there was no fatal error in allowing a witness to testify as to what the sleeper said when he woke up, or what those present said, if the remarks had no tendency to implicate any one.</p> <p>Evidence of the resistance of the accused when arrested is admissible.</p> <p>An assignment of error that is not supported by any exception will not be considered.</p> <p>In a prosecution for larceny from the person, alleged to have been committed in the presence of others, the jury may properly consider the fact that no one saw the accused near the person of the complaining witness.</p> <p>A jury cannot be instructed what weight to give to testimony.</p> <p>A charge that the prisoner’s guilt must be proved to the exclusion of all reasonable doubt, and that he is entitled to acquittal if the testimony can be reconciled with any rational theory, other than his guilt, is as much as he is entitled to.</p> <p>It does not change the nature of larceny from the person that the person plundered was asleep.</p>

<p>False imprisonment — Attachment for contempt — Declaration in justice’s court — Damages for detention from business — Order of testimony.</p> <p>An attachment against the person for contempt, issued by the register of the court on affidavit, but without any order from the court, is invalid and is no justification in an action for false imprisonment.</p> <p>A declaration in justice’s court for false imprisonment averred that plaintiff was “thereby delayed and injured in his business," to wit: at the venue stated. Held sufficient to warrant evidence of damage.</p> <p>Damages for tort may cover all losses to the commencement of suit; and where they are certain to follow and can be fairly estimated, injuries that have not yet accrued may be properly included.</p> <p>All damages arising from one cause of action must be assessed and recovered oncfe for all, and do not renew the cause of action as they mature.</p> <p>It is within the judge’s discretion to allow a witness to be called ■ after he has begun to sum up.</p>

<p>Certiorari to Highway Commissioner.</p>

<p> Trover for attached, goods, by assignee of execution debtor. </p> <p>Where trover is brought for the value of goods seized, and the general issue is pleaded without notice that the seizure would be justified by virtue of judicial proceedings, the defendant cannot introduce evidence to show that he seized them under a writ of attachment.</p> <p>Where an assignee brings trover for the value of goods seized by anybody but an attaching or judgment creditor, the defendant cannot question the validity of the assignment.</p>

<p>Ejectment — Statute of limitations.</p> <p>The plaintiff in ejectment must rely on the sufficiency of Ms own title, and cannot question the defendant’s before maMng a prima facie case of actionable right in Mmself.</p> <p>One cannot recover in ejectment unless at the time of begmning the action, he had a right of possession, and under Rev. Stat. of 1838 such right was barred if entry was not made within twenty years from its origin.</p> <p>tinder the Revised Statutes of 1838 a mortgagee had a right of entry on default in the payment of the mortgage; but if he made no entry, he could have no such possession as would enable him to enter within twenty-five years, or bring an action for the recovery of the land; and an entry without right by a stranger would not enure to Ms benefit so as to enable ' him to make his original entry or bring suit within twenty years from the origin of his right.</p>

Trespass on the case under the Civil Damage Law to recover money paid out for liquors by plaintiff’s husband, and damages to plaintiff. Defendant brings error.

<p>Drain law — Notice—Act 140 of 1875.</p> <p>Proceedings to lay out a ditch, under Act 140 of 1875 cannot be sustained unless the drain commissioner’s return states how, when and on whom notice of the examination upon the application for the drain, was given, and shows affirmatively that it was given to all parties concerned in strict conformity to the act.</p> <p>The five days’ notice of “ examination ” on an application for a township ditch excludes the date of notice and of examination.</p>

<p>Certiorari to drain commissioner and township clerk.</p>

<p> Assignment annuls unaccepted offer of partial payment. </p> <p>Money laid .aside by a banking firm to be returned to a general depositor, but not amounting to the latter’s full credit, is covered by a subsequent general assignment, if not tendered and accepted before the assignment is made; and it is not freed from the assignment by afterwards charging the amount to the depositors and dating the charge as .if made before the assignment.</p> <p>A banking firm, just before it had determined on assigning, and before making up its cash account, marked a package of money with the name of a general depositor and the word “private.” The money did not amount to the depositor’s full credit. On making the assignment the firm asked the assignee to give the package to the depositor, who knew nothing of these facts till afterwards. Held that the money was not thereby delivered and was covered by the assignment.</p> <p>A partial payment or tender is operative only when the creditor consents to receive it.</p> <p>A bank can at any time tender the full balance due to a general depositor, but cannot compel him to receive less.</p> <p>An offer of partial payment can be withdrawn at any time before acceptance, and is withdrawn and annulled by a general assignment.</p>

<p>Error to Ingham.</p> <p>Beplevin. Defendant brings error.</p>

<p>Bona fide purchaser — Cloud on title.</p> <p>A sold land to B, and B sold it to C, but the former deed was not recorded, and A sold it again to D who appears to have had notice of the other conveyances. S, hearing that the land had been abandoned, got an abstract of title which showed the conveyance to 0. He immediately took a quit-claim from D, leased the land, and filed a bill to remove the cloud on his title. Held that he had sufficient notice to put him on inquiry, was there- ■ fore not a bona fide purchaser, and could not maintain his bill.</p> <p>Where a purchaser, out of possession, can resort to ejectment, but instead makes an agreement with a tenant in possession by which the latter takes a lease from him in order to enable him to proceed in chancery and prevent a jury from passing upon the good faith of his purchase, he will not be allowed to maintain a bill to quiet title.</p>

<p>Attachment — Substituted service.</p> <p>Return of substituted service will not give a justice jurisdiction to proceed in attachment if it does not appear that diligent search was made for the defendant until the time allowed by law for mating personal service had expired.</p>

<p>Motion for writ of prohibition.</p>

Assumpsit on covenant of quiet enjoyment in a deed from Yaughn to Matteson, executed June 18, 1853, and purporting to convey certain land in Lapeer county. The declaration averred that defendant, at the delivery of the deed, was not' seized in fee simple of the lands and had no lawful authority to convey them, and that Henry M. Bostwick and Erastus S. Sterling held the paramount title, by virtue of which the plaintiff was afterwards evicted.

<p>Error to Washtenaw.</p> <p>Larceny. Bespondent was convicted.</p>

<p>Witness — Reliance on adversary’s testimony.</p> <p>Where a hill in equity charges on information and belief that a transaction is fraudulent, and the answer directly denies it, the complainant has the burden of showing it to be so by independent evidence.</p> <p>Where complainant makes defendant his sole witness to show fraud on the latter’s part, he cannot discriminate between such testimony as favors his case and such as does not, where it is all equally probable, merely on suspicion that the unfavorable testimony is false.</p>

<p> Warrant for arrest of fraudulent debtor. </p> <p>The affidavit for a warrant under the Non-imprisonment Act must state specific facts positively and not inferentially, on personal knowledge and not on belief; and if the complainant does not know the facts, affidavits must be obtained from those who do.</p> <p>Whex’e the claim for which a warrant under the Non-imprisonment Act is issued, is alleged to be in judgment, the affidavit for the warrant must set forth such a judgment as will authorize the proceeding, as well as such other facts as will convict respondent of such conduct as the statute makes sufficient ground for a warrant. The affidavit should give the date of the judgment, and is fatally defective if it does not show the form of the action in which it was rendered.</p>

<p>Fixtures — Machinery—Mortgages on premises where the land and machinery placed upon it are used by a partnership and held by different titles.</p> <p>A saw-miU and its appointments are prima facie part of the realty and should be so treated if' no agreement, understanding or intent is shown to change their character.</p> <p>Machinery not made expressly for use in the building in which it is placed, but capable of beneficial use if removed or set up in some other building, is personalty or realty according to the intent or understanding fairly dedueible from the circumstances.</p> <p>Where real estate is owned' in undivided interests by the individuals who compose a partnership which has only the use of it, trade fixtures set up by the partners do not become realty, and when their occupation ceases the partners may remove them. They are not covered by mortgages on the premises if their owners did not plainly mean them to be so.</p> <p>Machinery bought as partnership property and constituting part of its stock in business is liable to the payment of partnership debts and subject to the adjustment of balances as between the partners; but if it is annexed by the partners to lands also held as partnership property it may become a part of the realty.</p> <p>Where land and machinery put upon it are held by different titles, and a steam engine is afterwards put in to run the machinery, the engine partakes of the character of the machinery, and does not become part of the realty.</p>

<p>Error to Lenawee.</p> <p>Information for uttering forged contract#</p>

<p>Certiorari — Dissolution of attachment.</p> <p>The Supreme Court is not authorized to review questions of fact on certiorari.</p> <p>In a proceeding to dissolve an attachment, the attaching creditor has the burden of satisfying the circuit court commissioner that the writ was well founded; and when the commissioner has fully passed upon the testimony his decision is not open to review.</p> <p>When an affidavit for certiorari to review the action of a circuit court commissioner in. a proceeding to dissolve an attachment is based on an erroneous finding and not a total want of testimony, and the record shows that no claim was made before the commissioner that there was no testimony in favor of respondent to be considered, it does not present any question of law.</p> <p>In a proceeding to dissolve an attachment, evidence is admissible that the plaintiff in the action had been secured by collaterals, and the defendant can be examined as to his intentions.</p>

<p>Appeal from Lenawee.</p> <p>Bill to set aside deed. Complainants appeal,</p>

<p> Garnishee not liable after assignment of debt. </p> <p>An unaccepted order on a debtor does not create any liability of itself, nor does it change the original liability, and it is a proper auxiliary to aid in an assignment of the debt.</p> <p>A defense in the nature of a former recovery cannot be set up under the general issue alone.</p> <p>' An assignee’s rights cannot be forfeited by a garnishee’s action in the assignee’s wrong.</p> <p>A garnishee whose indebtedness has been assigned before the suit, and who has been notified of the assignment after the suit was begun but before his disclosure, is not liable: and if he admits , an indebtedness without disclosing his knowledge of the assignment, and pays over the money, he cannot defend on the ground of former recovery if sued by the assignee for the debt.</p>