Volume 40 — Michigan Reports

<p>Chancery Procedure — Decree based upon Commissioner’s Report cannot be reviewed unless the report was excepted to before the decree was made — Interest can be implied upon a security, but only at the statutory rate. . .</p> <p>Where a reference has been duly decreed for the purpose of obtaining a basis for a final decree, the commissioner’s report binds the parties, if not excepted to, and the court should decree in accordance with it; and when the report has been confirmed without objection'and followed by a final decree that is allowed to stand, an appellate court cannot review it or re-examine any part of the final decree that rests upon it.</p> <p>Where an interlocutory deei’ee, in ordering a reference, decides the turning point in the case, exceptions to the commissioner’s report are not available to compel the court to re-examine the point decided; the proper remedy is by motion or petition to the court or by resorting to the appellate court.</p> <p>An interlocutory decree, ordering a reference, decided that complainant was entitled to interest and fixed the rate. Held that an omission to except to the commissioner’s report did not preclude the defendant from appealing from the decree on these points.</p> <p>A debtor on certain promissory notes running at ten per cent, and all maturing together, gave his creditor a mortgage deed for a sum less than the amount of the notes. The deed was made eight months after the notes, and did not refer to them or expressly identify the debt, nor did it specify a time for payment nor make any provision for interest. Held that it was due as soon as given, and by implication a security bearing interest from its date, or at least from the maturity of the notes, but as it was a distinct security in itself, interest on it could be implied only at the statutory rate of seven per cent.</p> <p>Interest can be implied at seven per cent., but not at ten.</p> <p>Ten per cent, interest must be stipulated for in writing.</p>

<p>Ejectment among Tenants in Common — Allowance for Improvements.</p> <p>The statute allowing an ejected party pay for his improvements (Act 180 of 1875) does not apply to tenants in common owning undivided interests.</p> <p>The statute protecting improvements made under tax-titles (Comp. I/., §§ 6252-3) did not apply where the entry or holding was not under a tax-title alone. Whether the statute is operative now — Q. A United States patent is the beginning of every absolute legal title to lands in this country.</p> <p>United States land is not subject to taxation, or private transfer or ownership, until entry of purchase, which is completed by the patent.</p> <p>The record of a United States patent in the government office at Washington has the same force as the patent.</p> <p>The validity or operation of a government patent is not impaired by neglecting to record it in the registry of the county where the land lies.</p> <p>A purchaser from one who holds only an undivided interest in patented lands, and who enters as a stranger to the rights of his co-tenants of the other undivided interests, is not estopped from setting up against them an adverse claim that originated before his purchase; such as a tax-title that arose from his grantor’s default.</p> <p>One tenant in common can oust another.</p> <p>Estoppel from purchasing a tax-title lies only against those who ought to have paid the tax or removed the burden.</p> <p>Where evidence tending to invalidate a tax-deed is admitted and goes to the jury without any ruling upon it, the Supreme Court cannot properly consider the alleged defects.</p>

<p>Error to Kalamazoo.</p> <p>Assumpsit. Plaintiff brings error. The necessary facts are in the opinion.</p>

<p>Gift from, Husband to Wife — Change of Possession — Estoppel— Value of Chattels shown in Trover.</p> <p>A man gave a chattel mortgage under which the mortgagee claimed, certain articles which the mortgagor’s wife testified that her husband had given her before its date. Held that her testimony, that her husband gave'her specified articles could not be treated as stating a conclusion of law only, but that it averred the act of giving, and in the absence of qualifying testimony, would justify a finding that a gift was made.</p> <p>In determining whether a gift has been made, the question of change of possession must be considered in connection with the other facts in the case; as where it passes between married persons living together.</p> <p>Open and visible change of possession can hardly be required to establish the fact of a gift from a husband to his wife when they are living together.</p> <p>A wife claimed ownership of a horse as given to her by her husband, and testified that after the gift was made she went to the stable where the horse was kept and gave directions respecting its keeping, and that she afterwards controlled it. Held admissible as res gestee and as tending to show that possession was delivered.</p> <p>Where a woman claims property as a gift from her husband, the only question is whether she establishes her right by a fair preponderance of evidence. But it is proper to consider the circumstances of the relation and the facility with which fraud may be perpetrated under its protection.</p> <p>A wifo who knows that her husband is about to include some of her own property in a chattel mortgage given in part to secure payment for her own board, is estopped from claiming the property as against the mortgage if she neglects to assert her right to it at the time. But evidence that she knew it long after-wards, and when the mortgagee had taken the property, is immaterial.</p> <p>The fact that a husband when perfectly solvent gave expensive presents to his wife does not concern a creditor of his, claiming property adversely to her under a chattel mortgage in which her husband had included it without her knowledge or consent.</p> <p>A wife brought trover for chattels belonging to her but seized under a mortgage given by her husband, and she gave evidence of their value. Held that defendant might meet this, by showing that after seizure he had caused the chattels to be publicly advertised and sold, and that sums were realized much below the value as shown by the plaintiff.</p> <p>In trover by a wife for chattels belonging to her but seized and sold under a mortgage given by her husband, evidence of the prices realized on the sede, which was admissible to rebut the plaintiff’s evidence of value, was excluded, and it was urged that its exclusion did not injure the defendant inasmuch as it could not have been a safe guide to the jury, as bidders must be presumed to have allowed for contingencies of title. Held untenable, as they might also have supposed that plaintiff meant to rely on recovering damages in the action brought by her for conversion.</p>

<p>Pleadings — Averment of Assignee’s Title — Special Counts should he Complete in Themselves — Want of Consideration — Damages for failure to procure Discharge of Mortgage.</p> <p>The record must be assumed to contain all material evidence.</p> <p>Every special count in a declaration must be regarded as setting up a separate claim.</p> <p>A plaintiff declaring specially upon an express contract between third persons alone, must aver his title and tíren make out by evidence the same contract as that set forth in his declaration, and his right and title as alleged.</p> <p>The right to sue upon a contract as assignee must be positively averred, and an allegation of the assignment in the consolidated common counts will not support a recovery upon a special count in which it is not averred. Nor would a mere additional allusion to the assignment in the special count be sufficient.</p> <p>A demurrer to special counts would not admit facts stated only in the consolidated common counts. ,</p> <p>A special count upon a contract is bad on its face if it omits an essential part of the contract.</p> <p>A declaration by the assignee of a contract recited that a third person was indebted $12,000, and that in consideration of his giving his note to defendant for $3,500, secured by a mortgage on his farm, the note and mortgage to be used to raise money to pay off the debt, defendant undertook to pay and discharge the debt, together with the note for $3,500. Held that no consideration was shown for any promise to do more than apply the proceeds as far as they would go to the uses specified.</p> <p>Damages for- failure to perform a contract to procure the discharge of a mortgage cannot be claimed i£ it does not appear that the mortgage was foreclosed or the claimant damnified.</p>

<p>Statute of Frauds — Verbal promise to pay the debt of another— Damages for failing to pay another’s debt.</p> <p>A verbal promise to pay the debt of another is within the statute of frauds and void if made to the creditor; but not if made to the debtor.</p> <p>A man promised certain stockholders to pay the debts of the corporation, in consideration of which they transferred some of their stock to him. They were not liable themselves and were interested only as stockholders. Failing to pay a certain debt he was sued in assumpsit by the creditor upon an assignment of this agreement. Held that the action did not lie, since nothing was assigned but the damages resulting to the stockholders from the non-payment of that one debt, and their interest could not be ascertained in a court of common law, nor severed from the entire transaction.</p> <p>The measure of damages for failure to pay the joint obligations of others, is the whole amount of the debts.</p>

<p> Property levied on to be sold as taken. </p> <p>A sheriff was sued for acts of Ms deputy in enforcing an execution The execution was introduced as part of the plaintiff’s case. Held that the sheriff’s light to show that it issued on a valid judgment followed as of course.</p> <p>An officer has no authority for threshing wheat he has levied upon in the mow, before selling it.</p> <p>An officer who is sued on the ground that he exceeded his authority is not to be presumed to have been justified by extraordinary circumstances, but has the burden of showing the necessity of his action.</p> <p>"Where an officer, by abuse of his authority, renders himself technically liable as trespasser ab initio, and is sued therefor, the jury may nevertheless in their discretion limit the award of damages to the plaintiffs actual injur \</p> <p>If an officer with an executi n mi uses the property levied upon, he is liable -to the execution uobtor therefor, and possibly to the creditor also, if the sale on the execution fails to satisfy the judgment.</p>

<p> Injunction against threatened nuisance. </p> <p>Whether injunction to restrain threatened injury is matter of right — Q.</p> <p>Injunction will not be granted where such relief is disproportionate to the injury.</p> <p>A wooden building encroached six inches on a private alley for more than twenty years. The owner attempted to veneer it with brick, whereby it would encroach three inches more. It did not appear that the encroachment would materially injure the right of way. Held that the adjacent owner was not entitled to remedy by injunction.</p>

<p> Discharge of Mortgage. </p> <p>Where a discharge of mortgage is given on the receipt of less than is due, by reason of an erroneous computation of interest, it is not a matter of course for equity to interfere afterwards to correct the error.</p> <p>Where a circumstance appeared in the case which would render it inequitable for the holder of the mortgage to collect the full amount of interest, a court of equity, irrespective of strict legal rights, will decline to interfere on his behalf.</p>

<p>Error to Cass.</p> <p>Foreclosure. Defendant appeals. The facts are in the opinion.</p>

<p>Mandamus to require the county treasurer to pay fees for attendance on jury in a municipal court.</p>

<p>Petition for writ of habeas corpus.</p>

<p> Proceedings by the city to open a private alley. </p> <p>Mandamus will not lie to compel a court to allow proceedings to be instituted by the city to open a private alley for private benefit, where it does not appear that an application to the common council to take such proceedings had been made by responsible and interested parties.</p>

<p>Appeal from Lenawee.</p> <p>Bill to remove cloud on title. Complainant appeals.</p>

<p> Purchaser on foreclosure made trustee for the benefit of a prior grantee whose rights should have been protected. </p> <p>Contracting parties must not act in bad faith to third persons who are in such relations to either as to be affected by their agreement or its consequences.</p> <p>A transaction that is in fraud of one’s rights may be construed in equity so as to be a means of saving and protecting them. Where a conveyance is obtained for fraudulent ends or under oppressive circumstances, the party deriving title is converted into a trustee-, if necessary for administering relief.</p> <p>One who has sold mortgaged land with warranty and has covenanted to pay off the mortgage, cannot make title in himself as against his grantee by allowing foreclosure and redeeming the land.</p> <p>K sold to H a parcel out of a lot which he had mortgaged and then allowed the mortgage to be foreclosed upon the whole lot, and by a collusive arrangement with R in his own interest but in fraud of H’s rights, the lot was bid in by R, who then refused to release to H except upon terms. Held that R should be considered as holding H’s parcel as trustee for H’s benefit, and so far as H was concerned, as K’s mortgagee.</p>

Assumpsit. Maealister recovered against the company in an action for his salary, and the company brings error. The facts are shown.

<p> False Imprisonment in an Insane Asylum. </p> <p>In an action for false imprisonment brought by a patient in an insane asylum against the superintendent, the broadest latitude should be allowed in showing the jury what the patient said and did and how she appeared when there, as facts bearing on the question of her sanity. .</p> <p>A patient who had been placed in an insane asylum as a pauper sued ■ the superintendent for false imprisonment. Held (a) that evidence of what happened to the plaintiff before she was received at the asylum, was inadmissible; so was evidence as to her worldly circumstances and what had been done with her goods; and (&) it was inadmissible to show what the assistants, attendants or other inmates in the asylum had said or done to the plaintiff, unless it was said or done under the superintendent’s directions; or that money sent to the plaintiff had not reached her, unless it is also shown that it came to the defendant or that he was instrumental in depriving her of it.</p> <p>An expert cannot be asked for a conclusion upon facts not stated; as where a physician is asked his opinion as to what produced the condition of a patient as he observed it.</p> <p>In an action for damages for false imprisonment, the plaintiff introduced evidence that she was a physician and offered to show the value of her practice. Held proper cross-examination to ask how she got it, as by advertising, through hand bills, or otherwise.</p> <p>One cannot lawfully be placed or detained in an insane asylum against his will, unless actually insane.</p> <p>The confinement of a person dangerously insane is always justifiable.</p> <p>Officers having quasi judicial powers are not liable for injury resulting from acts done understandingly and in good faith within the limits of an authority expressly granted to them.</p> <p>Whether the superintendent of an asylum is liable for detaining a sane person whom in good faith he believes to be insane — Q: Cooley, J., and Campbell, O. J., holding that he is; Marston and Graves, JJ., that he is not.</p> <p>Whether in doubtful cases an inquisition to determine the insanity of a person is prerequisite to his confinement in an asylum_Q: Cooley, J., and Campbell, C. J., holding that it is; Marston and Graves, JJ., that it is not.</p>

<p>. Certiorari to Cass.</p> <p>The facts sufficiently appear in the opinion.</p>

<p> Waiver of Forfeiture of Insurance. </p> <p>Where a mutual insurance company imposes forfeiture in case a loss occurs while its assessments are still unpaid, but its local agent receives past due assessments with knowledge of a loss and forwards them to the company without notifying them of it, and they receive them and two or three weeks afterward order the loss to be paid when adjusted, they cannot afterward refuse payment on the ground of the delay in paying the assessments, ■since they have waived that by receiving them when over due and ordering payment.</p> <p>A note written by plaintiffs attorney before suit, and expressing the opinion that defendant is not liable, is not admissible in evidence for the defense.</p>

McDonald. The plaintiff in error was named as executor in this instrument, and was designated by the probate court as the representative on the appeal, of all the parties interested.

<p>Delivery and possession — Rescission of sale.</p> <p>Possession by an officer of a company is not the company’s possession unless held for that purpose.</p> <p>A vendor may protect himself by rescission against the fraud of an insolvent purchaser who has not paid and does not mean to pay him.</p> <p>One cannot lawfully mortgage property to which he has no right, and the mortgagee of such property is in no better position than the mortgager.</p> <p>D agreed with M and G to form a corporation, and they united with him in a bill of sale to the corporation of a stock of goods which really belonged to him alone. M and G-, as president and secretary of the company, afterwards mortgaged the stock, and it was seized under the mortgage. D brought trover and swore that he delivered the bill of sale to M to be held conditionally, and not delivered to the company until he was paid. Held (a) that as there could be no delivery in the ordinary sense, the bill of sale could not become operative against the grantors until they had somehow manifested an intent to make it operative; (&) that upon the evidence the ease should have gone to the jury.</p> <p>If the plaintiff’s testimony establishes a case, it cannot be taken from the jury by reason of testimony introduced for the defense.</p>

<p> Opening Highways. </p> <p>Proceedings to lay out and open a highway will be quashed if the record docs not show that legal notices were given.</p>

<p> Bill of Review. </p> <p>An order granting leave to file a bill o£ review cannot be made at chambers or without notice.</p> <p>A bill of review should recite the proceedings in the former case and show that complainant has equities.</p> <p>A bill cannot properly be sustained as a bill of review or a supplemental bill in the nature of a bill of review, which, though filed more than five years after decree, does not show any performance of the decree by the party filing it, or any reason for the long delay, even if equities might at some time have existed^ which, however, does not seem to have been the case here.</p>

<p>Motion for order to show cause why mandamus should not issue to compel the court to set aside an order to hold to bail after special bail had been perfected in an action on the case for fraud.</p>

<p>Kindred of the half blood — Depositions—Proof of relationship.</p> <p>One’s half sister inherits from him equally with a sister of the full blood in lands which he obtained by purchase.</p> <p>A deposition will not be set aside merely for being transmitted in a gummed envelope, if it has not been tampered with.</p> <p>A deposition does not need a separate jurat if the commissioner who took it certifies that the deponent was duly sworn.</p> <p>Interrogatories relating to family relationship, dates of decease, and marriages, may well be answered on the basis of family tradition instead of direct personal knowledge.</p>

<p>Practice — Case referred bach for clearer presentation.</p> <p>In a case involving accounts the parties made frequent references to certain partnership books which were not returned in whole or by sufficient transcript as part of the record. The references were therefore unintelligible, and as the court could not tell whether the case was presented as it had been below, it was referred back to the lower court that the parties might take, proper action to present it clearly.</p>

<p>Certiorari.</p> <p>The facts are in the opinion.</p>

<p>Error to Manistee.</p>

<p>Contract — Part performance — Special declaration.</p> <p>A hotel manager brought suit against the proprietor for preventing the performance of the contract of management by his interference. Held that a letter from the proprietor to a newspaper, avowing the discharge of the table waiters, was relevant evidence.</p> <p>A cause of action under a special contract cannot be so divided that recovery can be had partly on a general count and partly on a special.</p> <p>Where one sues for not being suffered to complete a special contract, he must declare specially and cannot rely on the common counts.</p> <p>One cannot recover under a special count upon a promise which it does not count on.</p>

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

Bill to remove cloud from title. The bill claims that complainant Hammontree has the equitable title to and is in actual possession of the s. e. | of see. 5, town 10 n., range 4 w., in Gratiot county, excepting one acre; that the land was conveyed by the United States to John McCarty in 1856 and in the same year was sold by hfm to John Thorborn for $500, which Thorborn paid, but that by a mistake the deed described it as lying in town 2 west instead of 4; that by various…

<p>Justice’s summons — Reimn—Non-suit—Affidavit for transcript of execution. '</p> <p>The following,return of service of a justice’s summons is prima facie sufficient to give the justice jurisdiction: “I hereby certify that I have personally served the within summons on the within named defendant, by reading the same and by giving a copy, on the 5th day of August, 1874.”</p> <p>A justice’s summons was made returnable at one o’clock in the afternoon. It was read to defendant and a copy given him, which, however, specified one o’clock in the forenoon as the time for appearance. Defendant appeared at one in the morning, got the justice out of bed, and in plaintiff’s absence took a non-suit. But before the real time arrived he saw the original summons, which stated it correctly. Held that the non-suit was void.</p> <p>.Where a justice enters judgment as against Peter Mayo in a suit begun by process against Peter Mayhue, it is competent to amend the error by following the summons, and the defect is not fatal if there is no question of identity and the transcript of execution gives the name correctly.</p> <p>An unsigned affidavit for a transcript of execution is valid if properly sworn to. 1</p>

<p>Error to Alpena.</p> <p>Bepleyin. Plaintiff brings error. The facts are stated.</p>

<p> Chattel mortgage void-for uncertainty. </p> <p>A mortgage upon a stated quantity of mixed logs in the drive is void for uncertainty- as against third parties who have acquired rights, if it does not furnish the data for separating the mortgaged logs from the mass.</p>

<p>Measure of damages for defects in machinery bought on contract.</p> <p>The measure of damages for putting up a steam-boiler with such defects as to make it worth less than the contract price, is the difference between its value in its defective condition and its value if completed in compliance with the contract.</p>

<p>Attachment — Ouster of jurisdiction.</p> <p>Dissolution of attachment does not oust jurisdiction if personal service has been had; nor is it ousted by a defective bond or an alternative affidavit.</p>

<p>Bill of particulars — Assumpsit between joint owners — Bes gestes_ Striking out evidence.</p> <p>'There - can be no recovery for items not in the bill of particulars, nor for more than it alleges.</p> <p>A. witness testified that a certain large quantity of logs were in the possession of a party named, but on cross-examination admitted that he had no personal knowledge about more than three or four of the logs. Held that his testimony should have been struck out. <</p> <p>In an action involving the settlement of accounts, figuring done by one of the parties when they were trying to settle may be admissible as res gestea.</p> <p>B and S agreed that S should buy and lumber some pine lands on. 'their joint account. B was to furnish the funds and be repaid out of the proceeds of the sales of the logs, the surplus being equally divided between the two. It was then agreed that B-should take the logs at a certain price and that they should be settled for under the terms of the first contract. Held that, after deducting B’s advances from the value of the logs, the remainder belonged to B and S in equal shares. The share of each being determined, and there being only two persons interested, there is no difficulty in determining the price to be paid, by B to S, and assumpsit lies to recover it.</p>

<p>Set-off of judgment — Expert evidence.</p> <p>B had a contract with M, but sued him on the common counts' before a justice to recover back an overpayment. He did not put the contract in issue, though he gave M credits under it. M filed no set-off, but immediately sued B before another justice for the whole amount of his bill. Held that the judgment in the first suit did not bar the second.</p> <p>A plaintiff cannot fix the amount of a contested bill by giving credit for what he claims it should be.</p> <p>A defendant can withhold his claim of set-off to be litigated in another suit.</p> <p>A judgment recovered before one justice can be ascertained and applied by another in satisfaction of a counter claim recovered before him by the other party.</p> <p>Expert evidence can be rejected where the witness has no personal knowledge of the matter in controversy, and for many years has had no experience of his subject, which has changed meanwhile.</p>

<p> Attorney’s fees secured in offsetting judgments. </p> <p>A judgment assigned by a client to his attorney in compensation for services cannot be set off. Comp. L., § 6125.</p> <p>A bill in equity to obtain an offset of a judgment will not lie, if at all, unless it shows that the amount involved, after satisfying any proper claim of the attorneys, exceeds $100.</p>

<p>Error to Calhoun.</p> <p>' Assumpsit. Plaintiff brings error. The facts are stated.</p>

<p>Error to Wayne.</p> <p>Appeal from commissioners upon an estate. The executor brings error. The facts are in the opinion.</p>

<p>Certiorari.</p> <p>The facts are in the opinion.</p>

<p>Ejectment for easements — Execution to enforce decree for alimony.</p> <p>Ejectment does not lie to recover an incorporeal easement, such as the use of an alley.</p> <p>The recital of an incorporeal right in a judgment of ejectment is nugatory and does not affect its validity.</p> <p>Where individual findings of fact are complete in themselves and stand in lieu of special verdicts, all that are evidently intended as findings of fact will be so treated even if they are classed by mistake with conclusions of law.</p> <p>Alimony may be granted in gross. Act 91 of 1877.</p> <p>An allowance of alimony should be appealed from and not attacked collaterally in resisting ejectment proceedings brought by the wife to obtain possession of lands bid in by her under a sale on the execution issued to enforce the allowance.</p> <p>Execution lies to enforce a decree for alimony.</p> <p>An execution is not void because the order allowing it to issue was made before the enrollment of the decree, if the execution itself did not issue until after enrollment. Chancery Rule 80.</p> <p>Chancery Rule 80 in forbidding proceedings to enforce a decree before its enrollment does not refer to orders of the court, but to proceedings in execution of the decree itself, as by sale; advertising and other preliminaries are allowed in advance of enrollment.</p> <p>The sheriff’s neglect to file the certificate of an execution sale within the statutory period (Comp. L., § 4638) cannot affect the purchaser’s title unless the execution debtor or innocent third parties have been misled by it to their prejudice.</p>

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

<p> Forfeiture of policy for misrepresentation of title. </p> <p>A policy contained a clause of forfeiture for the omission to state any material fact, and made the application of the insured a warranty. Hetcl that it was avoided by the statement of the insured that his title to the property was absolute, when in fact it was held by him and his wife under the same deed.</p> <p>The existence of any substantial incumbrance upon property is a material fact in insurance, whether the statements of the insured are made warranties or not.</p> <p>"Where property is granted to a husband and wife by the same deed, the husband is neither a tenant in common nor an ordinary joint tenant; he has no right to an undivided half of the property, and if he dies his estate goes to his wife by survivorship.</p>

Mandamus to vacate an order made by the probate court without notice, amending a former order. The facts are in the opinion.

<p> Execution for costa on interlocutory order. </p> <p>Execution does not lie to enforce an order imposing costs as a condition to a continuance, when the continuance has been waived.</p>

<p>Risks of employment — Injury to railroad employee.</p> <p>A switchman while standing on the foot-hoard of a tender that was backing on a side-track, let go the hand-rail to shift his lantern from one hand to the other, and was thrown off by a jerk caused by a worn rail left there by his fellow employees, the trackmen. He had full means of knowing the condition of the track, and the custom of the road as to using worn rails for side-tracks. Held that the risk was one of the ordinary risks of his employment, and that he had no ground of recovery.</p>

<p>Error to Kalamazoo.</p> <p>Libel. Plaintiff brings error. The facts are stated.</p>

<p> License fees. </p> <p>.The courts will not review municipal discretion in imposing license fees, where it has not been abused.</p>

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

<p> Plea in abatement must state necessary facts. </p> <p>A plea in abatement must expressly state every fact necessary to support it, and exclude everything that would defeat it if alleged on the other side.</p> <p>Inferences of the pleader are not admitted by demurrer.</p> <p>A plea in abatement to a suit in replevin asserted that defendant had seized and held the goods as deputy sheriff. Demurrer to the plea was overruled, return waived and judgment given for defendant. Held that the plea should have stated facts and not merely matters of conclusion, so that the court could have determined whether the defendant’s seizure and custody were lawful, and what became of the property after it was seized on the writ of replevin, in default of which the demurrer should have been sustained and judgment given that defendant answer over.</p>

<p>Affidavit of publication — Purchase money mortgage does not attach to after-acquired lands.</p> <p>The omission to state in an advertisement of a mortgage sale, that only an undivided, portion will be offered instead of the entire parcel, is not a jurisdictional defect that can be objected to in a collateral proceeding, but an irregularity that should be complained of in the same case.</p> <p>Whether the mode of proving publication in cases of mortgage foreclosure is limited to that prescribed by statute, Comp. L., §§ 5924-7. — Q.</p> <p>The following affidavit of publication in a foreclosure case is held sufficient under Comp. L., § 5927: “ [Title and venue] Lee Gray Hull, a printer in the office of the Constantine Weekly Mercury, a public newspaper printed, published and circulated in the county of St. Joseph and State of Michigan, being duly sworn, says that the annexed notice, chancery order, has been published in said newspaper at least once in each week for six successive weeks; that the first publication of such notice in said newspaper was on the I2th day of December, A. D. 1872, and the last publication of the same was on the 30th day of January, A. D. 1873. [Signature and jurat.] ”</p> <p>Covenants will not be implied in a purchase money mortgage. Comp. L., § 4207.</p> <p>One who gives a purchase money mortgage that includes lands not granted to him, is not estopped as against the grantors and mortgagees from denying that it covers those lands, if he acquire them afterwards.</p> <p>A purchase money mortgage cannot attach to anything which the purchaser did not own at the time of giving it.</p> <p>The fact that one who has purchased undivided shares of certain property, has mortgaged his interest as undivided shares, does not hinder him from afterwards mortgaging the whole property when he has acquired the remaining shares.</p>

<p>Certiorari to the commissioner of highways and to a justice of the peace of the township of Baltimore in Barry county, to bring up proceedings taken by the commissioner before the justice to establish the existence of an encroachment made by Gregory upon a highway.</p>

<p>Error to Montcalm.</p> <p>Action on bond in replevin. Defendant brings error..</p>

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

<p>Annual lease — Tenant at will.</p> <p>A verbal stipulation for rent at a specified annual rate, but without stating for bow long, amounts to a lease for a year only.</p> <p>A tenant bolding over is not a tenant at will unless be bolds over by tbe express or implied consent of bis landlord.</p> <p>A tenant wbo wrongfully holds over his lease does not acquire equities as a tenant at will by any brief delay in proceeding against him, and is not entitled to such, notice to quit as a tenant at will could claim.</p>

<p>Nominal damages — Removal of property by one who has equitable title — Evidence as to contract without plea puis darrein.</p> <p>"Where the plaintiff introduces a contract as a necessary part of his case, the defendant can show when and how it was performed, even though performance had not been pleaded puis darrein continuance.</p> <p>Proceedings in chancery resulting in a decree for specific performance can be shown in an action at law to meet evidence of a contract.</p> <p>"When timbered land is subject to a contract of sale which provides that no trees shall be cut until full payment is made, the equitable right to the timber is nevertheless in the purchaser and becomes a legal right when he has made or tendered full performance, even if he or some other person has wrongfully cut the timber meanwhile.</p> <p>Only nominal damages lie on a merely technical right of action.</p> <p>A case will not be remanded where the only error is the failure to award nominal damages, and where a judgment for such damages would not carry costs.</p> <p>Trover will not lie for logs wrongfully cut and sold by a purchaser of land before he had made full payment, if he makes or tenders payment before suit is brought.</p>

<p>Statute of limitations — Joint promisors — Costs.</p> <p>One joint maker of a note shall not lose the benefit of the statute of limitations by reason of payments made by another. Comp. L., § 7164.</p> <p>Unexplained indorsements and indorsements written by or for the payee are not sufficient proof of payment to take a case out of the statute of limitations. Comp. L., § 7165.</p> <p>The admissions of one joint maker are not evidence against another. Costs are not awarded on affirmance where the record was corrected after the removal of the ease.</p>

<p>Error to Berrien..</p> <p>Larceny. The facts are in the opinion.</p>

Assumpsit on a bond. This action' was brought by the school district upon the bond of certain contractors and their sureties. Defendants bring error.

<p> Evidence of a log scale. </p> <p>A witness can testify to facts though not qualified to give an opinion as an expert. An unprofessional log-sealer, therefore, can testify to his own scale. The weight of his evidence is settled by the jury.</p> <p>"Where the vendor and purchaser of logs have agreed in writing to scale them jointly, the joint scale binds both; and if, without bad faith, logs scaled by one party in the other’s absence, become mingled with the rest, the loss of the original joint sea]^ cannot make a third person’s scale of the whole drive, evidence of the quantity or quality of that part of it which had been scaled jointly.</p>

<p>Referee’8 findings — New trial.</p> <p>A referee Is bound to decide according to the weight of evidence.</p> <p>A finding that does not decide everything submitted for decision, cannot stand.</p> <p>A finding is incomplete that does not state a distinct conclusion or at least set forth sufficient facts to lead to one by inevitable inference.</p> <p>Where a finding substantially decided that a claim was established, but left it doubtful whether or not it had been satisfied, it was held there had been a mistrial, and the case was remanded to to be tried over</p>

<p>Partnership promise to pay a third person’s debt — Accommodation endorsements — Declarations and admissions of partners.</p> <p>A partner is not bound by an accommodation endorsement made in the name of his firm, but without his assent.</p> <p>A partner’s declarationsJ cannot bind his associates in concerns foreign to the partnership, nor can his admissions bring such matters within the scope of the business.</p> <p>A note was given by a debtor to an execution creditor to obtain a release from a levy, and was endorsed in the name of a firm by one of the partners. There • was no showing that the firm received any consideration, or that one of the partners consented to the endorsement. Held that it must be presumed that it was purely an accommodation endorsement, and that the creditor, who of course was not a bona fide holder, was privy to all the facts.</p> <p>Where the authority of a partner to speak for his associates is not shown, his statements, so far as concerns them, are mere hearsay.</p>

<p>Appeal from Marquette.</p> <p>Foreclosure. Complainant appeals from an order denying the appointment of a receiver of the mortgaged property.</p>

<p>Appeal from Manistee.</p> <p>Bill to establish a trust estate. Complainant appeals.</p>

<p>Appeal from Kent.</p> <p>Foreclosure. The facts are in the opinion.</p>

Mandamus. Application for mandamus to compel payment of a warrant issued by the Auditor General in favor of Houghton county, which the State Treasurer refused to pay. The application showed that the warrant had been issued for a larger sum than is now claimed by the county to be really due, by a mistake of computation.

<p>Motion to remand for further return.</p>

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

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

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

Assumpsit on two promissory notes made by McKenzie December 16, 1870, and transferred by successive endorsements to Boylan. The statute of limitations and other defenses were pleaded, but the court, sitting without a jury, found in plaintiff’s favor for the amount of the notes. Defendant brings error.

<p>Error to Van Burén.</p> <p>Summary proceedings to recover possession of lands under Comp. L., § 6706, subd. 1. Plaintiff brings error.</p>

<p> Receivers cannot be garnished without leave. </p> <p>The receiver’s custody is that of the court which appointed him.</p> <p>A receiver cannot be sued or garnished without leave of the court which appointed him.</p>

<p> Suit to recover back compulsory payments. </p> <p>Payment made under stress of a legal process is compulsory, and if unlawfully exacted, the person making it can sue to recover it hack.</p> <p>Mandamus to compel payment to a contractor from a special assess*ment, was denied where the assessment had been adjudged invalid in a suit brought by a tax payer to recover back what he had paid.</p>

<p> Endorsement of notes. </p> <p>An endorser before utterance is a joint maker.</p>

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

<p> Surviving partners. </p> <p>A firm is dissolved by the death of a .partner.</p> <p>A surviving partner cannot bind co-survivors by signing the firm name without their express authority or ratification.</p>

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

<p>Error to St. Clair.</p> <p>Assumpsit. Defendants Stewart and Ames bring error.</p>

<p>Mandamus.</p> <p>The facts are in the opinion.</p>

<p>Appeal from Berrien.</p> <p>Specific performance. Defendant appeals.</p>

<p> Specific performance. </p> <p>Stipulations not actually made and to which the parties might not have assented, cannot be imported into a contract, however equitable they may be. '</p> <p>"Where a demand for specific performance has once been made and refused, it is not necessary to repeat it under similar circumstances before sueing to compel it.</p> <p>A decree in chancery is no bar to a suit that does not involve the same questions, even though they might have been brought into the first case by a cross-bill, but were not.</p> <p>Specific performance will not be refused as inequitable because of the fluctuation of values, where the court has no means of knowing what bearing the terms of the contract had on the negotiations of the parties.</p>

<p> Delivery of deed. </p> <p>A grantor who had executed to his son a deed of land which the latter occupied, promised to record and send it to him, but kept it in his possession unrecorded till his own death, nearly four years later. The evidence was conflicting as to whether he really meant to record it or not. Held, by a majority of the court that it fell short of showing a delivery.</p>

<p>Tax unlawfully exacted recovered back — Interest.</p> <p>Assumpsit lies to recover back an unlawful tax exacted under color of existing process and paid with protest.</p> <p>A municipality cannot escape liability for the amount of a tax illegally exacted, on the ground that the money was not to be used for municipal purposes.</p> <p>A tax roll is invalid for want of a return or certificate showing upon what basis the assessment was made.</p> <p>Interest will be allowed against a municipality on the recovery back of money illegally exacted as a tax and paid under protest.</p>

<p>JSguilies of a mortgagee without notice of a prior mortgage — Joint title of husband and wife.</p> <p>Where a man buys mortgaged land and retains from the purchase pnce the amount of the mortgage, the land becomes in his hands as between himself, his vendor, and the mortgagee, a fund for the satisfaction of the mortgage.</p> <p>A second mortgagee can take up the first mortgage, tack it to his own and foreclose for both.</p> <p>M took a mortgage on lands which the mortgagor afterwards sold subject to it to P, who reserved from the purchase price sufficient to pay it. Unknown to both P and M, there was a prior mortgage to W on the same land. When this came to the knowledge of P and M, P gave M to understand he would pay it off. Notwithstanding this, he allowed W to foreclose, and bought the land at the foreclosure sale. Held that this foreclosure did not extinguish the lien of M’s mortgage, and he was entitled to have the land decreed to be chargeable with the amount.</p> <p>Whatever -would defeat a husband’s title under a grant made to himself and his wife jointly, would defeat hers also, as they take by entireties. Comp. L., § 4112.</p>

<p>Brokerage — Commissions from both sides.</p> <p>The same agent was retained by different persons on commission to negotiate sales or exchanges of their property, and he brought about an exchange between two of them, neither knowing that he was acting for the other. Held contrary to public policy to allow him a right of action against both to recover his commissions, even though he had acted in good faith.</p> <p>A man placed certain property in the hands of agents.for sale or exchange for farm property at his option, and agreed to render all the assistance he could in making such sale or exchange. Held that the contract conferred authority to negotiate, and did not constitute the agents mere middlemen to bring the parties together.</p>

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

<p>Condemnation of lands — Jurors—Appeals.</p> <p>In proceedings to condemn lands for a railroad right of way, mortgagees of the land must be defendants; and a discontinuance as to them without adjudicating on their rights is fatal to the proceedings.</p> <p>One who has given his note to a railroad company to aid in the construction of its road is disqualified as a juror in proceedings to condemn land for its right of way; and the disqualification cannot be removed by stipulation between the parties.</p> <p>It is against the policy of the law to let an interested person sit as judge or juror.</p> <p>A person whose rights are affected by the result of proceedings to condemn land can appeal, even though they had been discontinued as to him; so held of a mortgagee.</p> <p>A stipulation fixing damages is not a judicial proceeding but an agreement between the parties.</p>

<p>Title under a forgery — Purchasers in good faith — Establishment of trust in lands held by others.</p> <p>Good faith does not give one who holds under a forged title any rights against the person whose name has been forged, or his heirs.</p> <p>A bona fide purchaser under a patent from the State is entitled to protection.</p> <p>One who knew of a dispute as to the genuineness of an assignment of a land certificate, but who bought under a patent taken out by the holder of the certificate, was held not to be a purchaser in good faith without notice.</p> <p>A bill to establish a trust in lands wrongfully patented waa maintained with costs of both courts against the patentee and defendants claiming under him with notice, but dismissed as to purchasers in good faith with costs to them.</p> <p>Where advances made by parties who have no equities, are counterbalanced by profits received, they will not be considered.</p>

<p>Appeal from Kent.</p> <p>Bill to remove cloud from title and cross-bill to restrain the sale of the land.</p>

<p>Payment of taxes — Marshal’s fees.</p> <p>The jurisdiction of equity, where the title or enjoyment of real estate is involved, depends on the value of the land and not merely the amount of the claim asserted against it.</p> <p>Tax laws are presumed to operate only prospectively unless they plainly express a different intent.</p> <p>An amendment to the tax law allowing sale to be made to pay the marshal’s fees will not apply to assessments made before the passage of the law, unless plainly so intended.</p> <p>Vhere a tax payment is expressly made to satisfy a particular assessment, the collector, if he receives it, must apply the money to the purpose specified and no other.</p>

<p> Salaries of public officers. </p> <p>A legally elected officer, duly qualified and standing ready, to perform. the duties of his office, is entitled to the salary, if it has not been paid, even though debarred from the performance of his duties by an intruder acting in good faith,</p>

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

<p> Licensing the sale of liquor. </p> <p>The removal of the constitutional prohibition against licensing the sale of liquor,’does not authorize a town council to license drinking saloons under a municipal charter granted before the con- ’ stitutional amendment.</p> <p>A statute cannot be enlarged merely by a change in the constitution.</p>

Replevin by Haire to recover possession of certain horses and oxen detained by Bonn and Buehannan, who had been employed to carry out a logging contract. Defendants bring error.

<p> Damages for entry and ouster. </p> <p>Where a plaintiff makes out a prima facie case of entry and ouster and there is evidence that the defendant had previously parted with his interest in the premises, there is enough as between the parties to go to the jury.</p> <p>Damages for entry and ouster include all legal injury caused by retaining possession against right.</p> <p>In trespass for damages caused by excluding plaintiff from the use of a lumbering shanty conveniently situated for his lumbering operations, the increase of expense necessarily caused him by such exclusion can be shown.</p>

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

<p>Error to Huron.</p>

<p>Possession under claim of title — Tax-deeds.</p> <p>A decree quieting title was granted upon a showing that complainant had been in undisturbed possession for more than twenty years before the action under claim of title based upon sales for taxes; and this without reference to the validity of the tax-deeds.</p>

<p> Consideration for a lease. </p> <p>In assumpsit the consideration of the contract is always open to inquiry.</p> <p>When premises are rented with the distinct understanding that they are in good condition, that becomes part of the consideration.</p> <p>Where the consideration of a lease fails, the lessee is justified in leaving and in refusing to pay farther rent.</p> <p>A lessor who exacts covenants that the lessee has reoeived tho premises in good condition, and will so keep and return them, cannot, in assumpsit for unpaid rent, deny that their condition was a consideration for the lease.</p>

Case made from Kent. Replevin by Parish against Morey for a stallion bought by him from one Butler who obtained it from Parish by fraud and force. The court below tried the case without a jury and found that Parish had agreed to sell the horse to Butler for $275.

<p>Contributory negligence — Master and servant — Risles of employment.</p> <p>An employer who introduces improved and complex machinery must take such corresponding precautions to keep his employees from harm in using it as are customary with prudent men.</p> <p>An employer must furnish a suitable place in which his servant, with due care, may do his work without exposure to dangers that are not usual to his occupation as ordinarily performed.</p> <p>An employee assumes the risks of his employment when, the machinery used is not defective and the usual means are adopted to guard against accidents. But if he voluntarily remains in service in spite of any deficiencies in either respect, and without any promise by the master to correct them, he is without remedy for any injury he may suffer in consequence. The master is guilty of negligence, and the servant of contributory negligence.</p> <p>An employee is not bound, before beginning work, to familiarize himself with tho condition of all the machinery he may come in contact with. It is enough if he knows his own work and the risks directly connected with it.</p> <p>If a servant shows that he has been injured in consequence of an unusual risk due to his master’s negligence, the master has the burden of showing that the servant knew of the increased danger.</p> <p>When the fact of contributory negligence depends on the credibility of witnesses or upon inferences in which intelligent persons may honestly differ, it is a question for the jury.</p> <p>Contributory negligence presumes a careless act or omission.</p> <p>The age, intelligence and experience of one who has suffered from an injury help determine whether he has been guilty of contributory negligence.</p> <p>A workman employed in a saw mill to carry slabs from the gang plank, while pulling backwards at one that was too heavy for one man to carry, slipped on some wet bark and fell against certain cog-wheels that caught his pantaloons and injured him. He had not been warned and did not know that the wheels were uncovered. Held that the question whether he was guilty of contributory negligence ought to have been left to the jury.</p>

<p>Conflict of jurisdiction — Exemptions in banJcruptcy.</p> <p>The bankruptcy court has exclusive jurisdiction of suits to determine an assignee’s right to property, where the right is disputed under the exemption clause of the bankrupt law (Bev. Stat. U. S., § 5045). This is so, at least, where a selection or valuation is necessary for setting apart the exempted property.</p> <p>An assignee in bankruptcy, like a sheriff levying execution, is entitled to at least temporary control of exempted property until it can be set apart from the rest.</p> <p>When an assignee in bankruptcy has sold property, his authority as assignee ceases, and his neglect to deliver it is a personal breach of duty, not official.</p> <p>Where no recovery can be had under the bill of particulars, a new trial is not granted on reversal.</p>

<p>Ultra vires — Ratification.</p> <p>A municipal corporation cannot ratify an act 'which it would have been positively unlawful for it to do. But this rule cannot affect proceedings to recover back money or property obtained by an act done ultra vires.</p> <p>Highway commissioners cannot bind their township by a partial payment for work which the township could not have authorized; such as the digging of a sewer within another jurisdiction.</p> <p>The recovery of money obtained through a transgression of power does not affirm, but denies the existence of the power.</p> <p>An act that might originally have been so done as to be binding, may be so ratified or assumed as to bind the immediate parties.</p>

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

<p>County treasurer — Security for moneys not paid over.</p> <p>A county may take security from an ex-treasurer for moneys received by him and not accounted for; and may take it in the name of a trustee.</p> <p>The doctrine of general assignments has no bearing on an instrument that is meant only to secure a single debt on specific property.</p> <p>A debtor may always give a bona fide security for any claim against him.</p> <p>Fraud is a question of fact and not of law where there Is no statute to the contrary, and where an honest construction is admissible.</p> <p>A trustee for the benefit of creditors can sell on credit with the assignor’s consent, so long as no creditor has obtained a lien on the property.</p> <p>The county treasurer’s books are presumed to show the amount due from the treasurer to the county.</p> <p>A power of sale is no necessary part of a mortgage, and a defect in it does not affect the validity of the mortgage.</p> <p>If a power of sale is carried out by a shorter notice than the statute authorizes to bar the equity of redemption, the only consequence might be the continuance of a right to redeem until foreclosure by lapse of time or in equity.</p> <p>A debtor conveyed certain lands to a trustee to bo sold for the payment of debts and the deed provided that the surplus and all unsold lands be returned to him after deducting costs and expenses. Held that it was properly treated as a mortgage.</p>

<p>Appeal from Washtenaw.</p> <p>Bill to set aside a deed. Complainant appeals.</p>

<p>Appeal from Kent.</p> <p>Bill for a partnership accounting. Defendants appeal.</p>

<p>Appeal from Kent.</p> <p>Bill to set aside a deed. Defendants appeal.</p>

<p> Auditing of costs of the Police Court of Grand Rapids. </p> <p>The act establishing a police court for Grand Rapids makes it discretionary -with the police justice to require security for costs from the complaining witness in ail cases. Held that this cannot be limited to eases arising under the city charter and ordinances; and to .the extent of making the power discretionary supersedes Comp. L., § 7488 as to offenses, generally; and that the auditing o£ costs by the board of supervisors cannot depend upon the way this discretion is exercised.</p> <p>The court judicially notices that a board of supervisors does not meet monthly.</p> <p>The general law requires the expense of enforcing the criminal statutes of the State to be borne by the counties.</p> <p>Where the jurisdiction of the police justice of a city is made concurrent with that of justices of the peace, the costs of the police court, unless otherwise provided by the act creating it, become at once a proper charge against the eounty in cases where sentence is suspended or the accused is found not guilty, or discharged for want of prosecution.</p> <p>Under the Grand Rapids police court act, costs that have been taxed and for which judgment has been rendered, do not become a proper charge against the county until an effort to collect them has been made by the police justice and failed.</p> <p>The police justice of Grand Rapids has jurisdiction of proceedings against disorderly persons under the general law. The county is properly chargeable with the expenses of such proceedings, but not with the expenses of such as are brought under the city charter and ordinances.</p> <p>The charter of Grand Rapids makes the expenses of enforcing the oriminal laws of the State in certain cases a charge against the eounty, provided that all persons arrested without process by police constables or the city marshal, be prosecuted under city ordinances unless otherwise directed by the prosecuting attorney. Held that where parties are thus arrested without process, the costs in all eases that might have been prosecuted under the ordinance cannot be made a charge against the eounty, whatever the procedure, unless the prosecuting attorney directed it to be taken under the State laws.</p> <p>The trial fee of one dollar allowed to a police justice may be charged in all cases, however short the trial, but not where the ease was dismissed or a .nolle prosequi entered.</p>

<p> Abatement of nuisance by destruction of property. </p> <p>A court is not obliged to order the destruction of property which it has decreed to be a nuisance.</p> <p>Comp. L., § 1702, permits the destruction of certain nuisances by the board of health of the township. § 1710 provides who shall constitute the board in a city. Held that where the city charter provides for the board, these provisions cannot apply. Property cannot be destroyed for the abatement of a nuisance until its destruction is lawfully ascertained to be necessary therefor, and then only so far as is determined to be necessary.</p> <p>An information charging that a dam creates a nuisance must be precise in its allegations and clear in its statements of consequences, to justify destroying the dam to remove the nuisance.</p>

<p>Reopening proofs — Extreme cruelty — Alimony.</p> <p>Where there is nothing to hinder a party from taking his proofs within the time allowed by rules of practice, and from cross-examining the witnesses of his opponent, and he neglects to do so, he cannot get leave afterwards to bring in contradictory testimony without a strong showing that justice requires it, and that he has not been so far at fault as to have forfeited his claim to favor.</p> <p>A court is not bound to extend favors to those who disregard its authority.</p> <p>It is often proper to open proofs generally and allow farther testimony to be taken on both sides, but was seldom allowed under the old practice, and is matter of discretion.</p> <p>It was the English chancery practice to close proofs before either party could know what had been sworn to, and after publication they were rarely opened to admit contradictory evidence.</p> <p>Proofs are not usually withheld on one side of a chancery cause, until they are concluded- on the other.</p> <p>A complainant may have special equities making it proper to reopen, proofs for his benefit without allowing- defendant to put in farther testimony.</p> <p>Defendant in a divorce suit vexatiously refused to pay alimony and withheld means that he was bound to give complainant for expediting her cause. Meanwhile ho took no proofs himself until after the time allowed by rule had expired, and then, while still in contempt by his refusal to pay alimony, asked leave to introduce proofs. Held that permission was properly refused.</p> <p>It may be supposed that licentious persons of opposite sexes, consorting together and holding loose views of the marriage relation, commit such offenses as they have opportunity to commit.</p> <p>It is extreme cruelty to a wife for her husband openly to consort ■with and express his preference for loose females.</p> <p>The allowance of alimony in gross instead of by periodical payments is approved in cases where the husband would be likely to vexatiously delay or withhold payments.</p> <p>Damages were imposed in a divorce suit in lieu of interest and allowances to the wife, for vexatiously delaying her and for her expenses in carrying on her suit.</p>

<p>Trusts — Accepted by proceeding thereunder — Not disturbed by appointment of administrator — Assignment of notes by operation of trust.</p> <p>A trust is sufficiently accepted by proceeding to execute it.</p> <p>A declaration of trust operates to assign to the trustee the notes from which the trust fund is to be raised, even if not indorsed to him.</p> <p>A trust, and not a mere agency, was held to be created by an instrument executed and delivered to a brother, and entrusting a certain specified fund in cash and notes to his “good faith and sound judgment * * to use and expend the same so far as may be necessary for the comfortable support ” of the party executing the trust and of his sister, during the remainder of their lives, the surplus, if any, to be divided among his heirs according to directions. Held also that this trust remained in force so long as one of the beneficiaries was entitled to support, and was not revoked by the death of the maker of the trust.</p>

Assumpsit by tbe executrix and executor of tbe will of William H. Hooper, for an amount found by the commissioners on Hooper’s estate to be due from Sherbun to tbe estate. Defendant brings error.

<p>Decree in equity in bar of defences at law — Foreclosure made absolute by dismissal of bill to redeem.</p> <p>The unqualified dismissal of a bill on the merits generally estops the complainant from introducing- matters involved thereby, in any other litigation on the same subject matter.</p> <p>A dismissal of a bill to redeem from foreclosure makes the foreclosure absolute and bars the mortgager’s rights.</p> <p>Every one must vindicate his rights in due season and in proper order.</p> <p>A defendant in ejectment cannot go behind or call in question an absolute decree of foreclosure against him, to introduce defenses that were open to him, if at all, in the proceedings in equity, but which he did not then rely on.</p>

<p>Error, fo Superior Court of Detroit.</p> <p>Trespass. Defendants bring error.</p>

<p>Appeal from Ingham;</p> <p>Bill to quiet title. Defendants appeal.</p>

<p> Attorney’s fees in mortgages. </p> <p>The provision for an attorney’s fee in a mortgage cannot be enforced upon a statutory foreclosure unless an actual sale is made, if at all.</p> <p>Printer’s fees cannot be charged on statutory foreclosure if the advertisement is withheld from publication and payment is tendered on the mortgage meanwhile.</p> <p>A provision for an attorney’s fee in a promissory note is void.</p> <p>A stipulation in a contract for grossly excessive damages is void. Parties cannot by stipulation avoid that principle of law and public policy which aims to limit compensation for injuries to a just amount and no more.</p> <p>Parties can carry out any agreement they please that does not affect the rights of others or of the public, but cannot expect it to be enforced, if unconscionable.</p> <p>The penalty for refusing to discharge a mortgage is imposed only for a wrongful refusal, and not for one made in good faith by advice of counsel and under a mistake as to one’s legal rights. Costs were not allowed where the question was novel, and the losing party acted in good faith on advice of counsel and under a mistake as to his legal rights.</p>

Defendant in error moved for a retaxation of costs, because tbe clerk had refused to reduce tbe allowance for printing tbe record, and for tbe return, she claiming that it was needlessly prolix, and that no allowance should be made for matters introduced beyond, wbat was reasonably necessary. Eeliance was bad on Eule 59 of this court.

<p>Motions for rehearing.</p>

<p>Motion to dismiss appeal.</p>

<p>Motion to dismiss appeal.</p>

<p>Forcible entry and detainer — Appeals—Comp. L., § 6718.</p> <p>Appeals from proceedings under the Forcible Entry and Detainer act (Comp. L., ch. 211) are allowable in the same manner as from judgments of justices of the peace.</p> <p>The. circuit court has jurisdiction to extend the time for appeals from proceedings under the Forcible Entry and Detainer act, on good cause shown; such as being prevented by severe sickness from taking the appeal.</p> <p>Discretion to allow appeals of forcible entry and detainer proceedings, if jurisdictional, is not reviewable. .</p>

<p>Appeal from Montcalm.</p> <p>Foreclosure. Complainants appeal.</p>

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

<p>Error to Eaton.</p> <p>Beplevin. Plaintiff brings error.</p>

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

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

<p>School moneys — A school district may be sued for money had and received.</p> <p>The assessor of a school district is the lawful treasurer and depositary of school district funds, and all moneys must pass through his hands and be paid out by him on proper orders.</p> <p>A town treasurer can pay school moneys only to the school district assessor, and then only on the warrant of the proper district officers.</p> <p>Mandamus for the payment of money can issue at the instance of one municipal corporation against another only when there are statutory or legal relations between them to authorize it, and the obligation to pay has been legally liquidated.</p> <p>An action for money had and received is the only proceeding by which to liquidate a demand against a municipal corporation for money belonging to the plaintiff and wrongfully in its possession.</p> <p>One school district that has wrongfully received money belonging to another cannot, in an action by the latter to recover it, requiro any strict proof of the regularity of the proceedings authorizing it to be collected.</p>

<p> Indorsement of note payable to order. </p> <p>The payee of a note drawn to order becomes an indorser by signing his name on the back of it, and unless he adds apt words to create a different relation, is not chargeable otherwise. And until he indorses the note, no third person can become an indorser.</p> <p>Wetherwax v. Paine, 2 Mich., 555, and Rothschild v. Grix, 31 Mich., 150, distinguished, in that those who signed on the back of the notes were strangers to them.</p> <p>Neglect to protest a note and give notice to an indorser is conclusively presumed to injure him.</p> <p>Indorsemeit by the payee at the time the note is signed, in order to enable the maker to negotiate it, does not enlarge the indorsser’s liability or create any new relation between him and third parties who may afterwards become holders.</p>

<p> Recalling jury after its discharge. </p> <p>A jury, after being discharged, was called back to answer some special questions that had been submitted to them but were not answered when they gave their general verdict. Some of the jurors had reached the street. The answers were consistent with the general verdict and made no change .in the judgment. Held that in the absence of any objection to the general verdict, there was no prejudicial error.</p>

<p>Trespass — Actual and constructive possession.</p> <p>If no one holds actual possession, the owner of the title has constructiva possession.</p> <p>Trespass can be brought only by one in actual or constructive possession.</p> <p>There cannot be constructive possession of lands of which third parties are in actual adverse possession.</p>

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

<p> Discharge of debtor by receiving accepted draft on a third person and neglecting to notify the debtor of its non-payment. </p> <p>A debtor is not released by the fact that his creditor knows that a third person has engaged to pay the debt, unless the creditor has accepted such third person as debtor in his place.</p> <p>A boom company ran logs for B under a contract. B sold the logs and the purchaser agreed to pay for running them, of which fact the company was informed. They drew on B, however, for part payment, and ho returned the draft with directions to draw on the purchaser, which they did, making the draft of the same date and amount, and payable at the same time. The purchaser accepted, the draft, which fell due and was protested without notice to B, who did not know of its non-payment until some time afterwards when the purchaser had failed, and he was for the first time called on to pay it. Held that the accepted draft must be regarded as having been received as conditional payment, and that the company made it their own by failing to notify B of its dishonor. Held that this point was sufficiently raised by an exception to a charge that the drawing and acceptance of the draft would not discharge B unless it was agreed that it should discharge him, or that the draft be taken as payment on the account, since an agreement was not necessary, as the company made the draft their own by neglecting to notify B of its dishonor.</p>

<p>Case made after judgment from the Superior Court of Grand Eapids.</p> <p>Assumpsit. Plaintiff had judgment below.</p>

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

<p>Error to the Superior Court of Detroit.</p> <p>Assumpsit on a promissory note made by Thomas Hurst and endorsed by James T. Hurst. Defendants bring error.</p>

Trespass by Heisel against Quinn for an assault and battery. Quinn claimed to be a policeman of Grand Rapids, . and gave evidence to show that the alleged assault consisted in forcibly arresting Heisel under a city ordinance, for disorderly conduct towards a number of laborers who were laying side track in front of his house.

<p> Fixtures do not revest after severance. </p> <p>A gang edger in a saw-mill was held to he a trade fixture which a tenant who put it in might remove during the term of his lease, hut not afterwards against the landlord’s consent; and if he left it in the mill and the landlord detached it, the tenant did not for that reason recover title to it as a personal chattel.</p>

<p> Boards of supervisors cannot regulate judicial salaries. </p> <p>The schedule to the constitution was meant to provide for temporary purposes only, and its provisions cannot be given permanent effect where any other interpretation is reasonable.</p> <p>Probate judges are not county but State officers, and are not subject to the control of any authority inferior to the Legislature.</p> <p>Power delegated to an agent to “fix and determine” a matter over which he has no original power outside of the agency, is ex-; pended when he has once acted.</p> <p>A board of supervisors oannot, under the constitution, control .the salaries of probate judges, either on its own behalf or generally; it has at most the delegated, but questionable power of fixing the salary once, and cannot change it, if at all, until directed to do so by the Legislature.</p> <p>An official salary may be deemed to bind the parties paying and receiving it if no other compensation is provided by law, and the officer accepts it as fixed and goes into office on those terms; but this presumption does not arise where the salary has been ■ cut down after the officer’s election.</p>

<p>Certiorari to drain commissioner.</p>

Joseph. Trespass on the case for damages by Frazier against Mizner “for that whereas the said defendant, to wit: on the 24th day of May, A. D. 1877, with force and arms, to-wit: at the village of Centreville in said county of ■St. Joseph, drove a certain horse to-wit: one horse and sulky in which he, the said defendant, was then and there driving in and along the coursing track of the St. Joseph county fair grounds, with great force and violence upon and against a certain…

<p> Continuity of adverse possession. </p> <p>Adverse possession is not broken by negotiating with other claimants if there is no waiver or non-claim on the occupant’s part.Attempts to buy off outstanding claims do not necessarEy admit their validity.</p>

Bill to set aside a deed and for a reconveyance. ■Complainant claimed that being old and infirm and •desiring to make his property available for his support, he had conveyed a farm to William West, from whom he received in return a life lease of it on which full payment was acknowledged; that the consideration for the conveyance was that West should take him into his own family and maintain, him for the rest of,his life and pay the taxes on his farm; that he relied on West’s…

<p>Appeal from Kalamazoo.</p> <p>Biel to set aside deeds and compel release of title. Defendant appeals.</p>

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

<p>Chattel mortgages — Default—Tender—Measure of damages for sale of more than was necessary to malee good an instalment due on a chattel mortgage.</p> <p>Upon default in payment of an instalment of a debt secured by chattel mortgage, tho mortgagee can take possession of all tho mortgaged property and soil enough to make the amount due with interest and costs; but whore tho property consists of several articles, no more can bo sold than is necessary to make good tho instalment then due.</p> <p>A mortgager oí chattels or claimants under him, such as his creditors or assignee, have the right to redeem the proporty by paying the debt when due and before sale.</p> <p>A chattel mortgage is only a security.</p> <p>Title to mortgaged chattels does not become absolute in the mortgagee upon default in payment of the debt secured.</p> <p>A tender is not good if made upon an impossible condition or one which the person making it had no right to impose.</p> <p>It seems that the mortgager of chattels has the right on tendering payment to demand possession of them if still held by the mortgagee; but the mortgagee would be entitled to a reasonable time in which to comply.</p> <p>_ A mortgagee of chattels on default in an instalment due seized and sold the whole property mortgaged in good faith for the extinguishment of the entire debt, part of which was not yet due. The property was divisible, and only enough should have been sold to make good the instalment due and costs. Held, to avoid circuity of action, the measure of damages for the wrongful conversion should be the value of the property less the amount of the debt secured by it, and any special damages. If the seizure and sale had been by a third person, however, the application of the proceeds by him to the payment of a debt of the mortgager, could not be shown to reduce damages.</p>

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

<p>Evidence in mitigation of damages in action on replevin bond— Adjudication in bankruptcy between attachment and execution.</p> <p>A sheriff is not damnified by proceedings against him in replevin for property in which he holds no special interest.</p> <p>A sheriff suing on a replevin bond is equitably entitled to not more-than will indemnify him.</p> <p>An attachment is dissolved by an adjudication and assignment in 'bankruptcy within four months of its issue.</p> <p>A sheriff has no special interest in attached property as against the debtor’s assignee in bankruptcy appointed before execution issued in the attachment case, and as between him and the assignee, he should surrender possession, to the latter.</p> <p>Under Comp. L., §• 6766, which permits defendants in a suit on a replevin bond to show in mitigation of damages the extent, of plaintiff’s special interest, it is held admissible, in an action by a sheriff on a bond conditioned for the return of property which he had held under attachments, to show that the attachment debtor had been adjudged bankrupt and an assignee had boon appointed for him, before execution had issued in the attachment cases. Such evidence does not dispute, but admits the debtor’s title, and the sureties are not therefore estopped from giving it.</p> <p>Sureties in a suit on a replevin bond conditioned to return property that had been held by the sheriff under attachment, may show in mitigation of damages that the demand on which the attachment was taken out, had been afterwards paid.</p> <p>Sureties on a replevin bond are not parties to the action in replevin and have no control over it.</p> <p>Defendants in a suit brought by the sheriff on a replevin bond may show that after the property had been taken from him he had ' seized and sold pax-t of it on other writs.</p> <p>Whether a sheriff, after attaching property whose owner was. adjudged bankrupt before execution issued, could then seize it on other writs, is a question between him and tho attaching creditors and assignee in bankruptcy.</p>

<p> Stipulations of counsel as to legal effect of contracts. </p> <p>The Supreme Court cannot undertake to construe an insurance policy or other contract upon mere stipulations of counsel as to its legal effect.</p>

<p>Tax roll as evidence — Comp. L., § 1016 — Valuation of property— Estoppel by acquiescence.</p> <p>A tax roll is only prima facie and not conclusive evidence of the validity of the assessments. Comp. L., § 1016.</p> <p>The levy of a municipal tax exceeding the aggregate amount limited by the charter for a single year, is illegal and cannot be sustained.</p> <p>Assessments upon any thing but the true cash value of property are illegal and in violation of the assessor’s official oath.</p> <p>Acquiescence in an assessment and payment of the tax estops the tax-payer from afterwards complaining of it, but payment of an illegal tax, if refused, cannot be enforced.</p>

<p> Commitment to the Reform School. </p> <p>A justice committed an offender to the Reform School until he should be twenty-one, and the judge of probate approved the commitment. The extreme limit allowed by law is the age of eighteen, and the justice altered the commitment accordingly; and the amended process, which was not approved, remained the only •warrant for detaining the prisoner. Held that it was void and the prisoner must be discharged.</p>

<p>New trial — Act No. 8 of 1870.</p> <p>The right to a new trial arises whenever a judge dies before a bill of exceptions can be settled. Act No. 8 of 1879 authorizing the bill to be settled from the stenographer’s minutes, did not divest this right, at least if it was asserted before the act was passed.</p>

<p>Embezzlement — Jurisdiction of police court.</p> <p>The embezzlement of county funds by a city collector is cognizable by the police justice of Detroit as an offense within his general criminal jurisdiction.</p>

<p>Error to Wayne.</p> <p>Bill to set aside a deed. Complainant appeals.</p>

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

<p> Credit given after transfer of property was recorded. </p> <p>The rights of a grantee cannot be prejudiced by representations made by the grantor or third parties, to which the grantee was not privy.</p> <p>The record of a deed is notice to all who deal with the grantor that in giving him credit they must not look to the property conveyed to satisfy the debt.</p> <p>Credit was given a firm in reliance on representations as to the wealth of one of the partners, part of whose property had, however, been transferred to his wife by a deed that was placed-on record before the credit was given. S,eld that a bill in aid of execution to set aside the deed as a fraudulent transfer would not lie, at least as against the wife, who neither made nor was privy to the representations, and was not alleged to have done or omitted any act so as to mislead complainant. ,</p>

<p> Trespass for removal of building. </p> <p>An owner of land cannot bring trespass against persons who have been in actual, entire and undisturbed possession, for removing a building from it.</p>

<p> Sale on credit without transfer of title. </p> <p>A payment in good faith is needed to complete a bona fide purchase.</p> <p>B, who knew that an execution was out against H, bought a buggy from him. H had driven into town with the buggy drawn by a span of horses which he fastened to a water trough without unhitching. B went over to him and bargained for the buggy, and it was agreed that H should have credit for it on the books of B’s firm, and might have it to go home with. B then went to his store and directed the clerk to give H credit, which was done by an entry on the day-book. H was not present and did not see or know of the entry. Meanwhile H went to a law-office, and the sheriff found the team and levied on the buggy. There was no bill, itemized account, receipt, acceptance, earnest money, note, memorandum or any writing signed by either party. The buggy was never in B’s actual or constructive possession. Held that the whole transaction was executory and no title passed. It was a sale on credit to be settled on balancing accounts, and as the purchaser knew of the execution, was presumably fraudulent.</p>

<p>Attachment — Amended return.</p> <p>A writ of attachment was returned before the return, day without, personal service. Held that a' farther return could not be made' without leave of court.</p>

<p>Error to Ingham.</p> <p>Debt on bond. Defendant brings error.</p>

<p>Error to Ottawa.</p> <p>Assumpsit.- Defendant brings error.</p>

<p>Partnership through receipt of profits — Duration.</p> <p>An agreement binding one party to get out lumber for the other during a specified season, the latter receiving a fixed proportion of the net profits of the job above expenses, does not constitute the parties partners, if at all, except for the season specified; even though the agreement was made some time before.</p>

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

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

<p>Error to Muskegon.</p> <p>Trover. Plaintiffs bring error.</p>

Assumpsit by James and James J. Eeid, constituting the firm of James Eeid & Co., importers of liquors in New York city, to recover the amount of a promissory note for $188.43, dated at Detroit, Oct. 12,1871, payable four months after at Detroit, and signed with the name of William Monaghan. Plaintiffs recovered and defendant brings error.

<p>Replevin — Description—Judgment for return.</p> <p>One cannot complain of an error in Ms favor.</p> <p>The description “two yearlings, red and wMte in color," is sufficient in a writ of replevin.</p> <p>Judgment may be given for the return of property instead of for its value, if, when the verdict is rendered, no one is present for the party entitled to it, and no evidence of value is produced.</p>

<p> Lien not discharged if refusal of tender is reasonable. </p> <p>There is no equity in seeking to avoid both lien and debt.</p> <p>If the refusal to accept a tender is not absolute or unreasonable, it does not necessarily discharge a security.</p> <p>A tender made without notice at an unfit place may be properly declined until the creditor can have reasonable time to examine the account.</p> <p>There can bo no waiver without knowledge of the defect waived.</p> <p>A tender, partly in bank notes, was abruptly made upon the street to the owner of some overdue mortgages, who was known to be sick and nearly blind, and who declined to transact the business until the next morning. The next morning he offered to receive the money, but reliance was then had on the tender, and it was not paid. Held that the tender did not discharge the lien of the mortgage, and being in bank notes could not be insisted on if rejected for that reason.</p> <p>Equity will not aid an unconseientious technical defense beyond the precise limit of defendant’s right.</p>

Information in. the nature of quo warranto, alleging that Langdon was an intruder into the office of chief clerk in the assessor’s office of Detroit, to' which the relator Throop had been appointed by the common council January 22, 1879.

<p>Error to Jackson.</p> <p>Assumpsit. Plaintiffs bring error.</p>

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

<p> Replevin against assignee. </p> <p>Beplevin will lie against the assignee of property, even though he allows it to remain in the assignor’s hands, unless he clearly makes known that he does not claim it.</p>

<p> Fixtures. </p> <p>There is no universal abstract test to determine whether an article is a fixture; it must usually depend on the express or implied understanding of the parties concerned. •</p> <p>The mode either of annexation or of use is not always conclusive as to whether an article is a fixture.</p> <p>A planing machine, weighing three tons, introduced through the doorway and fastened to the floor by cleats, bolts, screws and rivets, but removable without injury to the building, was mortgaged as a chattel after a mortgage had been given on the premises, describing them as land without mentioning buildings or referring to its uses. There was nothing which necessarily showed that the mortgagee of the realty had been induced to rely upon the machine as security. Held that the presumption was that it remained a chattel.</p>

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

Trespass on the case by Nowlin, who declares that Snow represented to him that he wished to sell or exchange certain real estate in Kansas worth certain specified sums, and that Nowlin, relying on his representations exchanged for it some land in Dearborn, Wayne county, Michigan, Snow agreeing to assume a certain mortgage, pay back-taxes on the Kansas lands, and also to pay Nowlin $1,200; he farther alleges that Show’s representations as to the value and local advantages of…

<p>Appeal from Isabella.</p> <p>Bill to set aside deed and for specific performance. Complainant appeals.</p>

. Trover by Neal for the conversion of a yoke of oxen which he claimed to have bought from the owner, but which were taken by Fordyce as sheriff under a chattel mortgage made before he bought them. Defendant brings error.

<p> Confession under duress. </p> <p>A confession was obtained from a weak minded person under arrest for crime, by telling Mm that the best thing he could do was to own up, giving Mm drink, and taking Mm in irons to a lawyer’s office where he was interrogated with bolted doors and in the presence of those who were hostile to Mm, and where his answers were taken down in writing and sworn to. Held that the confession was not voluntary and could not be used against him.</p>

<p>Exceptions before judgment to the Recorder’s Court of the city of Detroit.</p> <p>Larceny. The facts are stated.</p>

<p>Exceptions certified before sentence from the Becorder’s Court of the city of Detroit.</p> <p>Burglary. The facts are given.</p>

Motion to dismiss appeal. Mary McCombs, the complainant, moved to dismiss the appeal of the two defendants, Merryhew and Sally Chilson, on the ground that the order appealed from was interlocutory, inasmuch as it was merely for the appointment of a receiver.

<p>Marshalling assets — Notice of foreclosure — Right of redemption barred by laches — Wife can buy in her husband's property after foreclosure upon it is made absolute.</p> <p>The grantee of a parcel of mortgaged land is entitled to have the', rest of the land sold to satisfy the mortgage before resort is had to his.</p> <p>The general rule for notices in Michigan excludes the day from which they begin to run and includes that of performanpe.</p> <p>Only twelve weeks interval can be required between the publication of notice of foreclosure sale and the sale itself.</p> <p>A wife cannot become indebted to her husband’s creditor by merely joining in her husband’s bond or mortgage to him.</p> <p>The right of a second mortgagee to redeem from the foreclosure of the prior mortgage, is barred if he allows the foreclosure to become absolute.</p> <p>A mortgager’s wife who has joined in the mortgage to release her dower, loses her original right by foreclosure, and has as good a right as any one to buy in the property from the foreclosure purchaser after the foreclosure becomes absolute.</p>

Mandamus to compel the Superior Court of Detroit to vacate an order overruling a motion for the relator’s discharge from arrest. The facts are in the opinion.

<p>Error to Washtenaw and Certiorari to Circuit Judge-for Washtenaw County.</p>

Bill for settlement of partnership affairs. Defendant appeals from an order directing the receiver appointed to conduct the business, to pay over certain sums to the. parties on application at stated times.

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

<p>Certiorari — Estoppel from, attaching drain commissioner’s proceedings.</p> <p>Certiorari is a discretionary writ and should not be allowed where the equities are against it.</p> <p>A wife joining with her husband in attacking proceedings for laying out a ditch can stand in no better position than he in the Supreme Court.</p> <p>One who knows of all the proceedings of a drain commissioner in relocating a ditch, and who takes the contract to dig it and digs part of it, cannot afterwards attack the proceedings.</p>

<p> Parol promise to pay another’s debt. </p> <p>A mere verbal promise to pay another’s debt, without any understanding with the. latter nor any independent contract Tor the promissor’s account, the original debt being kept alive, is void under the statute of. frauds.</p>