Volume 41 — Michigan Reports

Motion to dismiss appeal. A motion is now made to dismiss on account of non-payment of the costs then granted. It was shown in answer that the full costs have been tendered with $5 additional, but the moving party claims that he is entitled to more for his trouble in the matter.

Mandamus applied for to compel relator’s reinstatement in the office of alderman from which he had been excluded by action of the common council declaring his opponent elected, and as he claimed without a proper hearing upon the merits.

Mandamus applied for to compel the court to vacate an order denying leave to file an amended declaration on duly suggesting of record the death of a defendant. The relator claimed the declaration should be amended so as to show the change of parties.

Mandamus to compel the Board to audit and allow a certain sum which relator claims to be due him as part of his salary as assistant prosecuting attorney. Relator showed that he was appointed February 25, 1878, under act 28 of 1877; that the salary of his predecessor had been fixed by resolution of the board of auditors at $1,500 a year, but that he had been paid at the rate of only $1,320, and that the board had rejected his claim for the difference.

<p> Irregular plea in chancery. </p> <p>An irregular plea in chancery can be considered on appeal if important to the final disposition of the case; mandamus does not lie to set it aside.</p>

Mandamus to set aside an order granting a new trial which, had previously been denied, in a case where there was great laxity in settling the bill of exceptions.

Mandamus to compel the payment of certain orders granted to the relator’s assignor by the board of supervisors of Benzie county, while sitting at Frankfort, after the county seat had been removed from that place to Benzonia. It appeared that this board had assumed to re-canvass the vote by which the county seat was removed, and had declared the county seat to be at Frankfort.

Ejectment. George Young devised to his daughter,, Mary Tewksbury, wife of Sidney Tewksbury, the s. f of the s. J of the s. f of quarter section, lot number seventeen in the Ten Thousand acre tract in the township of Hamtramck, Wayne county, Michigan, containing fifteen acres of land and bounded westerly by the road running from Detroit to Pontiac, known as the Pontiac turnpike, being 15 rods wide on said turnpike, running back eastwardly of the same width 160 rods, and being…

Assumpsit by Elizabeth Aubrey upon land contracts. The plea was the general issue with notice of a former judgment in bar of recovery. Plaintiff recovered and defendant brings error.

<p>Case made from Saginaw.</p> <p>Assumpsit. Defendant bad judgment below.</p>

<p> Postponement of tax-sale a ground of invalidity. </p> <p>The State cannot be charged, with the amount of tax-bids upon a sale not authorized by law.</p> <p>The Auditor General cannot directly or indirectly postpone tax-sales beyond the date fixed by law.</p> <p>The provisions of the tax law must be strictly construed where a departure from them would prejudice the owner of the property taxed.</p>

<p>Trial by jury — Discretion to vacate a conditional order for new trial upon action tahen amounting to a breach of condition— Removal of causes — Mandamus not a writ of right — Injunction and restraining orders to prevent trials of causes.</p> <p>The right to trial hy jury is waived in civil cases hy neglecting to demand it; and ii the judge orders one for his own satisfaction, it does not concern the parties.</p> <p>Where neither party has demanded a jury, the assignment of the case for a particular day in term is a plain intimation that no jury will be called.</p> <p>The Supreme Court cannot consider matters that were not brought before the court below on a motion for new trial, to show an improper disposition of the motion.</p> <p>Where a new trial is not a matter of right, the judge in granting it may properly impose such a condition as that the parties must waive any supposed right of removal and try the case at the following term.</p> <p>Where a new trial, is granted on conditions, the judgment remains in force subject to the conditions and is not absolutely vacated until they are performed.</p> <p>A plaintiff cannot be deprived of a choice of tribunals given him by law, unless by proceedings in strict accordance with the statutes. A State court cannot refuse to retain jurisdiction of a case that is not properly removed from it.</p> <p>A State court cannot resist the removal of a case to a federal court if it is legally removable thereto.</p> <p>One court cannot enjoin another.</p> <p>The acts of Congress contemplate the issue of ex parte orders from a federal court to restrain the trial in a state court of a cause that is entitled to removal, only when it appears that there is danger of irreparable injury from delay.</p> <p>A United States marshal is not protected in seizing property belonging to one person under a writ directed against others.</p> <p>Trover against persons seizing property under federal process can be brought in a state court, and if any question arises under the laws of the United States the Supreme Court of the United States can review any final decision of the state courts against the defendants.</p> <p>There is no jurisdiction by mandamus to review the discretionary action of inferior courts.</p> <p>Mandamus is not a writ of right, and is not usually allowed to those who have been culpably dilatory or otherwise at fault.</p>

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

<p> Action for separate and distinct liability. </p> <p>An action for a separate liability against a single defendant precludes evidence that he was liable as principal debtor jointly With, another.</p> <p>An unwritten promise to pay another’s debt is void. One cannot, therefore, be sued as guarantor or surety if there is no pretense that he had mado a written agreement.</p> <p>Plaintiffs sued defendant for the price of building materials, claiming that they had engaged to furnish them to a person in his 'employment, but after furnishing -part had delivered the rest to defendant on a new agreement which they had made with him after informing him that they had concluded not to deliver anything more under the first arrangement. Defendant denied making any agreement. Held that the fact of the first agreement did not preclude the existence of another, and that any evidence tending to show a distinct agreement with defendant, should go to the jury.</p>

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

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

<p>Tender discharging lien — Bight to test existence of lien.</p> <p>In a bill to restrain the foreclosure of a mortgage of chattels, complainant relied upon the discharge of the mortgage lien by a tender. The evidence of a valid tender was conflicting, but it was shown that in a subsequent replevin suit between the same parties, involving the right to the same chattels on other grounds, the holder of the mortgage had recovered judgment for the value, taking no account of the mortgage as an existing lien. This showing was held to support the allegation that the lien had been discharged.</p> <p>A previous suit which indirectly affords support to the allegation of a tender may be given in evidence in a chancery suit though not set up or mentioned in the pleadings.</p> <p>A purchaser of mortgaged property has the right before sale to test the existence of the lien by a bill to restrain foreclosure, so that in ease of an adverse decision he can have a chance to pay the amount due and save the property.</p>

Assumpsit on tbe common counts by Pollock against Busch and Lane for logs sold to them, work done for them, and money paid on their account. Defendants pleaded the general issue with notice of set-off. Plaintiff recovered and defendants bring error.

<p>Constitutional law — Titles of statutes — Corporation laws ip, be strictly construed — By-laws—Qualification for membership:</p> <p>Corporation by-laws should apply to all members alike, and special exemptions from their operation cannot make them vaiid if they are not so otherwise.</p> <p>The constitutional provision that “no law shall embrace more than one object which shall be expressed in its title” is violated if an act is amended so as to embrace a purpose outside of its title and inconsistent with provisions remaining unrepealed.</p> <p>Act 356 of 1865 authorizes the formation of corporations exclusively for literary and scientific purposes. Act 18 of 1867 amends it “to include missionary and other benevolent purposes,” but does not change the title nor repeal the inconsistent provision limiting the objects of such corporations to the promotion of literary and scientific pursuits. Held that the law of 1867 is unconstitutional.</p> <p>The laws of Michigan distinguish between religious purposes and those of general benevolence.</p> <p>Whether an incorporation is binding if the principal part of the agreement under which it is framed cannot in law be sustained— Q. Where the articles of a corporation prescribe the conditions of membership, no additional restriction can be imposed by the by-laws without amending the articles.</p> <p>A corporation organized under Act 356 of 1865 cannot have any officers whose authority does not come directly from the choice of the stockholders or through the directors, and the statute does not authorize any delegation of power to any committee except to such as are directors.</p> <p>An incorporation act can never be extended by construction to cases not reasonably within its terms.</p> <p>It is a matter of policy and not of law to determine the powers and conditions of corporate existence, and it requires legislative judgment as to every distinct purpose meant to be provided for.</p> <p>A corporation that had usurped certain franchises, but not in bad faith, was merely ousted therefrom, with a nominal fine and costs.</p>

Trover by Frankel against sheriff Coots for seizing goods assigned to the plaintiff by Benjamin Schlos^.

Case made from Montcalm. Trover by sheriff Briggs for chattels seized and sold by the mortgagees. Plaintiff had judgment below.

<p>Rep levin — Damages.</p> <p>Eeplevin does not lie against one who is not unlawfully detaining the property at the time the affidavit for the writ is sworn to and the writ delivered to the officer. So held where the writ was sworn out and held until defendant could be caught in temporary possession.</p> <p>Damages allowed the defendant in replevin may include the value of the use of the property while it is kept from him by means of the replevin proceeding.</p> <p>One who institutes an unfounded suit in replevin may incur damages as against the defendant, even though the latter does not own the property.</p>

Case made after judgment from Oakland. Ejectment by Dei as administrator of Charles Dei for premises occupied by Eosa Habel and her husband, and claimed by her as her homestead as widow of Charles Dei. Plaintiff had judgment below.

<p>Leases — Circuit Court Rule 79 — Res judicata.</p> <p>Under Circuit Court Eule 79, if one who is sued for rent, omits in pleading to deny on oath the execution of the lease, he cannot make any defense inconsistent with its execution.</p> <p>An adjudication is conclusive in respect to (1) the subject matter of the litigation, and (2) the point of fact or law or both necessarily settled in determining the issue on the subject matter.</p> <p>The subject matter of a litigation is the right which one party claims as against the other, and on which he demands the judgment of the court.</p> <p>Adjudications upon the subject matter of a suit are conclusive wherever any question respecting it arises afterwards in a collateral suit, and in any new suit in which the pleadings put any part of it in issue; and this is so whether the adjudication was obtained on default, or whether all possible questions wore raised on the trial, or whether it was correct in fact or law.</p> <p>The execution and delivery of a lease may be made by the pleadings a distinct issue from the right to rent; as where the omission to deny it on oath admits the fact for the purposes of the case.</p> <p>■\yhere the execution and delivery of a lease are disputed in a suit for rent, the determination of the issue concludes the parties in any subsequent litigation involving the right to rent under the same lease.</p> <p>Where the execution of a paper is admitted by failure to deny it on oath, -it is expressly left outside the issue, and not being part of the subject matter of the suit, can be put in issue in other litigation on the same paper.</p> <p>A defense cannot be withheld to be used in the retrial of a dispute respecting the same subject matter, when a single suit could end the whole controversy^ Viví*</p> <p>One who is sued in respect to one subject matter is not precluded in any after litigation involving the same questions, though relating to a different subject matter, from introducing defenses not used in the former suit.</p> <p>Where the execution of a paper is admitted for the purposes of the case by omitting to deny it on oath, a special finding that it had been executed would be surplusage, and a finding that it had not been, would be struck out as outside the issue.</p> <p>It cannot be assumed, in order to support a judgment, that facts existed contradicting the record.</p>

Foreclosure. Complainants appeal from an order discharging a deficiency on foreclosure sale, and declaring the decree of foreclosure satisfied.

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

Assumpsit by Glenn against Yyne for tbe price of a quantity of lumber. Defendant pleaded tbe general issue with notice of set-off and recoupment, and as tbe case involved accounts it was referred.

<p>Appeal from the Superior Court of Detroit.</p> <p>Bill to restrain an assessment. Complainant appeals.</p>

<p>Business entries in evidence — Variance—Leading questions.</p> <p>A claim based upon defendant’s alleged original liability as principal debtor mil not sustain a recovery against him as guarantor.</p> <p>Entries against a particular person on tbe plaintiff’s business boobs are not conclusive evidence that some other person is not liable for the amounts charged, and they may be explained or contradicted by parol testimony.</p> <p>The objection that questions were leading cannot be noticed in the Supreme Court if not brought upon the record; nor in general, if it is on the record.</p>

<p>Promissory note — Copy attached to declaration — Severance.</p> <p>Endorsements for collection give no title to the collecting agent as against the owner of the note, and' the latter in suing on it 'by-copy may strike them out, together with the endorsements back to him.</p> <p>A man and his wife were sued jointly on a note. The wife had signed as surety and as to her the. statute of limitations had run, and the judge directed judgment in her favor for her costs and against her husband for the amount found due, with costs; he also ordered a severance of the parties on the record before judgment and the entry of separate judgments. Held that as this accomplished substantial justice without circuity, error would not lie on the ground that where two or more are sued jointly there should be a discontinuance against those not liable and an amendment to the declaration before any recovery could be had against the rest.</p> <p>The provision in Comp. L., §§ 5776-8, authorizing the maker, indorser, acceptor and guarantor of a note to be sued together, and judgment against any one or more of them, does not contemplate severance in the case of persons purporting to be joint makers and sued as such.</p> <p>Comp L., § 7162, allows judgment to be given against such defendants on a joint contract as remain liable while others are released by the statute of limitations, but does not apply to a case where one of the parties sued had never been bound at all.</p>

<p>Proceedings in equity to resist the levy of an excessive tax.</p> <p>The charter of Detroit (ch. 8, § 2) empowers the common council to make an annual assessment of one per cent, on all taxable city property for certain purposes. Held that a higher assessment is void as to the excess.</p> <p>Where a complainant seeking to restrain the sale of his land for taxes, denies the validity of a particular tax without giving a reason for contesting it, he ought in his bill to offer to pay it.</p> <p>Where the limit of a legal assessment on one’s property is fixed and ascertainable, one who resorts to equity to restrain the sale of his land for a tax of which he does not dispute the legality of certain items, cannot object to the whole tax on the ground that there is no provision for distinguishing between what is legal and what is not, but must offer to pay what might have been legally assessed.</p> <p>One who seeks to restrain the enforcement of an excessive tax without tendering what he ought equitably to pay, is liable for costs; but if he concedes a certain amount to be legal and offers to pay it, his bill ought not to be dismissed, as he has a right to the judgment of the court as to the remainder of the tax.</p>

Assumpsit by the Grover & Baker Sewing Machine Company on a policy issued by the Watertown Eire Insurance Company to A. P. Colby upon a dwelling 'house and its contents, and immediately after the loss ¡of the property assigned by Colby to James L. Dobbins. ¡The insurance was made payable to Charles Jagger, a ¡mortgagee of the realty, as his interest might appear. ¡The policy was dated Aug. 20, 1873, and was to run three years; the property was destroyed by fire, Dee. 14,…

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

<p>[Bill and cboss-bild.]</p> <p>Procurement of assignment of mortgage — Cross-bill.</p> <p>It is not fraud for one who has bought subject to a mortgage to induce a friend to purchase the mortgage. It makes no difference to the mortgager whether one person or another owns it, and it does not change his relations with the owner of the land or the mortgage creditor. Nor does it affect the right of foreclosure.</p> <p>A cross-bill cannot be maintained if the defense to the original bill fails, where both are based on the same facts.</p>

<p>Logging contracts — Construction.</p> <p>A contractor agreed to haul logs at his own expense of teams, etc. Held that in an action by him on the quantum meruit, defendants could not recover for outlays in repairing roads and sleighs, where it was not shown that plaintiff had requested it.</p> <p>A logging contract provided for hauling and delivering all the logs cut and skidded on certain land at a stipulated rate per thousand ‘ according to the scale of B, who had' scaled about a million feet of said logs and is expected to scale the remainder, Held that the contract did not cover any logs to be cut and skidded after its date, and could not be made to do so by parol evidence.</p>

<p>Findings — sufficiency of evidence.</p> <p>Whore the Supreme Court is of opinion that on the various points covered hy a judge’s finding there was evidence upon which he might have reached his conclusions, the judgment based upon it is affirmed.</p>

<p>Certiorari to B. P. Shepard, Circuit Court Commissioner of Hillsdale county.</p>

<p>Certiorari to justice of the peace.</p>

<p>Appeal from St. Joseph.</p> <p>Bill to cancel a lease. Defendants appeal.</p>

<p> Mandamus to private corporation to pay dividends. </p>

<p>Bastardy — Variance—Judgment as to maintenance.</p> <p>In bastardy proceedings it is error to admit evidence that the offense was committed at a time and place other than those specified in the complaint.</p> <p>Comp. L., § 1979, provides that the amount of a judgment in bastardy proceedings on the part of the woman should be paid to her or to the county superintendent of the poor, or to both in specified proportions. Held that the omission to direct that the mother shall provide some part of the child’s maintenance is not error, where the judgment provides to what extent the father shall assist her.</p>

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

<p>Circuit Court Commissioners — Dissolution of attachment on lands and restoration of property.</p> <p>A circuit court commissioner can dissolve an attachment on lands. One who petitions for the dissolution of an attachment on lands need not set up his right to restoration of the property.</p> <p>A levy of an attachment on land does not dispossess the owner.</p>

<p>Exceptions to Monroe.</p> <p>Trespass. Plaintiff brings error.</p>

<p>Elections — Deputy sheriff may conduct drawing of lots — Demurrer —Pleading over — Costs.</p> <p>In case of a tie vote for county clerk lots may be drawn for the office before the sheriff' (Comp. L., § 137); held that in'case of his inability, the deputy-sheriff may perform this duty.</p> <p>An election was determined by lot, the vote being tied. Quo warT ranto proceedings were instituted for the office. The plea set up an equality of votes, and being demurred to, this fact was admitted. Held that on overruling the demurrer,’ the relator could not be allowed to plead the invalidity of votes east for respondent.</p> <p>Where opposing counsel had appeared for argument and the moving party asked for a continuance, a counsel fee as for a hearing at that term was included in the costs imposed on final judgment against him.</p>

Injunction. The bill alleges that before the organization of the complainant county which was effected by act 345 of 1871, portions of its territory belonged to the counties of Midland and Mecosta, and that since its organization these counties claim that it is indebted to them in large sums which joint resolution No. 35 of 1877 directed the Auditor General to charge against Clare county and to credit to the others in the amount of $8,185.32 to Midland and $5,386.99 to…

<p>Foreclosure — Notice of latent equities — Interlocutory rulings — Costs.</p> <p>A deed conveyed land to three partners in the proportion of an undivided half to one and an undivided fourth to each of the others, and added, “this being the proportional undivided interest of each of the above partners in the lumber firm and lands of Milo A. Skinner & Co..” The first named grantee mortgaged his undivided half. Held that the deed did not necessarily import notice of the rights and interests of others in the portion mortgaged.</p> <p>The policy of the recording laws requires that where grantees seek to protect latent equities in property deeded to them, the deed must contain an intelligible hint that there are equities which a conveyance of the legal title will not impugn.</p> <p>Where a defendant has answered after his plea and demurrer have been overruled, the Supreme Court will not review the interlocutory proceeding of overruling them, for the sake of passing upon a trifling question of costs.</p>

<p>Error to Eaton.</p>

Assumpsit by the bank against Watson A. Sibley, impleaded with William Glue and Alpheus G. Smith upon the following note: “ 500.00. Muskegon, Mich., Mar. 20, 76. Ninety days after date, we promise to pay to the order of George S. Goodale, Cashier, Five Hundred Dollars, at Muskegon National Bank, Muskegon, Mich., for value received, with interest after due at ten per cent, per annum.

<p>Appeal- from Muskegon.</p> <p>Foreclosure. Defendant Erwin appeals.</p>

<p>Error to Kent.</p> <p>Trover for conversion. Plaintiff brings error.</p>

<p>Lease — Fraudulent representations by tenant — No interference with possession of land by preliminary injunction.</p> <p>Neglect to cultivate a vineyard on a farm-' will not sustain a bill to cancel a lease on the ground that the lessee had obtained it by the fraudulent representation that he was a skillful farmer in all branches of husbandry.</p> <p>Courts of equity cannot condemn a man unheard or transfer the possession of property prima facie his from him to another on the latter’s ex parte claim to it.</p> <p>Possession of lands cannot be disturbed or given to a receiver by a preliminary injunction, and appeal would lie as from a final order from such a premature adjudication of the merits, since it entails a surrender of rights or the expense of a preliminary appeal.</p> <p>A bill was filed to cancel a lease as obtained by fraudulent representations. The fraud was denied and the injury alleged was not irreparable, as the lease provided for its termination by notice so that the lessor had a -remedy at law for damages. Held that an ex parte injunction restoring possession to the lessor pending suit was improvidentiy granted.</p>

<p>Appeal from Lapeer.</p> <p>Bill to cancel mortgage. Defendant appeals.</p>

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

<p>Cancellation of securities given without consideration — Costs.</p> <p>A promise to pay is not binding ii made without consideration.</p> <p>A advanced money to his son B who was to support him and his wile for life for the use of it. B' died and A of his own motion went to live with a grandson, C, .who took care of him at his own request and not at that of B’s executors or for their benefit. But C procured from them notes and a mortgage which he claims were given to pay him for keeping the old people. A had no personal claim against the executors and never proved his claim against the estate or assigned it to C, and it was neither paid nor suspended. Held that the securities did not represent a debt and should be given up and cancelled, and a perpetual injunction was granted against their enforcement.</p> <p>Costs are not granted as against a merely nominal party. So held as to a sheriff who had been made a defendant to a bill to cancel securities, on the ground that he was the officer to conduct a mortgage sale.</p> <p>The division of costs between prevailing parties does not concern the party against whom they are awarded.</p>

<p>Vendor’s lien — Secret trust in granted land.</p> <p>The lien of a vendor of land for the purchase money does not attach unless the land is actually sold for an agreed consideration payable in any case and as the purchase price.</p> <p>A vendor’s lien can exist only as collateral to a debt created simultaneously with the sale, and a part of it.</p> <p>An absolute gift of land made subject to a parol trust in the grantor’s favor, has the effect of an unconditional gift, the trust being void.</p> <p>In Michigan no secret trust arises by implication in favor of one who makes a voluntary conveyance of land, or procures one to be made to another.</p>

Mandamus. Enright & Spencer made a partnership note payable to Ellison or order and Freeman wrote his name on the back. Ellison sued Enright, Spencer and Freeman in assumpsit on the common counts, serving a copy of the note with his declaration. Enright and Spencer were defaulted and a reference was made to the clerk to assess damages on an interlocutory judgment against them.

<p>Removal of property in fraud of creditors — Attorney General not a proper relator in private matters.</p> <p>Comp. L., § 7190, making it a misdemeanor to remove, convey or dispose oí one’s property for the purpose of defeating a levy on it, makes the receiver of the property as guilty as tlio person transferring it, and applies only to property that can be removed and concealed, and not to real estate.</p> <p>The Attorney General is not a proper relator in proceedings before a justice for the examination of a person accused of a crime that does not affect the public interests.</p>

<p> Bonds do not operate retrospectively to bind sureties. </p> <p>An antedated bond does not bind the sureties for the period preceding the date of its delivery if its language is not retrospective.</p> <p>A surety is not presumed to have meant to become answerable for acts committed before ho signed the obligation.</p>

Assumpsit on common and special counts by Sophronia Brigham against John N. Gott. The declaration recited that Gott was an attorney whom the plaintiff had employed to invest $1,700 for her by way of loan at ten per cent, interest, “the said sum of money to be well and sufficiently secured, plaintiff to be properly and duly advised in regard thereto for her protection in the premises, until ” it be repaid her.

<p>Assignments of error — Contract—Evidence—Instructions.</p> <p>An assignment oí error to the effect that judgment ought to have been given for plaintiff in error is a mere generality without force.</p> <p>Where a witness in an action on contract has been examined as to defendant’s declarations, it is proper to cross-examine as to farther statements made by him and bearing on the same subject.</p> <p>No notice will be taken of an assignment of error that is too general to connect it with any exception.</p> <p>A sewing machine company sued for the price of a machine. Defendant claimed that the sale was conditional on plaintiff’s making it run. Held that evidence was admissible to show that persons sent by plaintiff’s agent to make it work, did not succeed.</p> <p>The court cannot confine evidence to the plaintiff’s theory and exclude everything that favors the theory of defendant's case.</p> <p>In an action for the price of a sewing machine, evidence as to the extent t.o which the machine had been damaged by defendant, or as to the financial irresponsibility of the agent who sold it, is not material. Evidence to show that after the defendant had returned the machine to plaintiff’s office, he had not ordered it to be brought back again, and that after it had been brought back, he had not refused to deliver it to plaintiff, was held admissible.</p> <p>A charge should be considered as a whole and not by separate propositions.</p> <p>A general exception to a whole charge, covering correct and incorrect propositions together, cannot be sustained.</p>

Assumpsit by Sanford & Peck for an unpaid balance of money received by Hopkins & Perry on sales of lumber furnished' by plaintiffs, and which plaintiffs claim should have been paid over to them under the following contract: Memorandum of agreement made this day, by and between S. R. Sanford and S. B. Peck, of Muskegon, Michigan, and John W. Hopkins & Co., of Ferrysburg, Michigan, being the providing of pine saw logs, to the amount of not less than four million feet, board…

<p>Error in justice’s judgment — Burden of showing bona fide reception of note.</p> <p>Where a justice’s rulings have been objected to, but his judgment affirmed at the circuit, it is enough to assign the rendition of judgment as error; if the rulings were all passed on, the enumeration of them is surplusage, as a review of the judgment must bring them under examination.</p> <p>Erooí of execution and indorsement mabs a prima facie case; but defendant may then show the invalidity of the note in the hands of the payee without first proving that the holder had notice of the defects; and the burden of proving that it was received from the indorser in good faith, for value, and before maturity, then rests on the- plaintiff.</p>

<p>Error to Berrien.</p> <p>Action under the civil damage law. Defendant brings error.</p>

<p> Order to produce papers needed by the defense. </p> <p>In a suit by a foreign insurance company upon the bond of an agent, it was held proper to order the company to produce, as necessary to the defense, certain alleged contracts between itself and other companies for which defendant was also agent, and which were also parties to the bond and apparently privies to all dealings to which it related, by which contracts it was claimed that these companies constituted an underwriters’ agency together, whereby a separate accounting would presumably be affected; and the fact that plaintiff did not admit the existence of the contracts is not of itself a reason for refusing the order if the petitioner gave some evidence that they existed.</p>

<p>Entry of judgment on transcript — Error—Certiorari.</p> <p>Entry of judgment on a transcript from a justice is not reviewable-on writ of error: nor is the denial of a motion to vacate sucb judgment. If such proceedings are reviewable at all, it is bycertiorari.</p>

<p>Appeal from Livingston.</p> <p>Foreclosure. Defendant Fargo appeals.</p>

<p>Assignment — Acceptance through agent.</p> <p>A store-keeper in Western Michigan executed an assignment for the benefit' of creditors to a member of a Detroit firm to which he was indebted, the latter having previously agreed to settle up his business for him in case he had to suspend. The storekeeper delivered the assignment to an agent of the firm, who left him in possession, notified his principals by telegraph, and took the assignment to Detroit where he delivered it next day to the partner named as assignee, who was out of town when he arrived, but who on returning and receiving it, immediately indorsed his acceptance and set out to take possession. But on tho day when the assignment was executed, after the agent had left the place, an attachment was levied on the debtor’s goods by another creditor. In view of the previous understanding and the representative character of the agent, it was held that tho assignment, being unconditional, took effect as soon as the agent started for Detroit and it was beyond the assignor’s control, and that it was sufficiently perfected by acceptance and delivery to defeat -the levy.</p> <p>A schedule need not be attached to an assignment for the benefit of creditors in order to pass the property.</p>

<p>Appeal from. Kent.</p> <p>Foreclosure. Defendant Union Iron Works Company appeals.</p>

<p> Damages for conversion by wrongful levy. </p> <p>A sheriff has no right to continue to sell goods on which he has levied, after the execution is satisfied.</p> <p>The rule of damages in trover, in the absence of special facts, is the cash value of the property with interest from the time of the conversion. Evidence of an appraisal made for the plaintiff at what the property would be worth to any one in the business in which ha had been engaged, is inadmissible in the absence of any claim for specific damages.</p> <p>In trover for a wrongful levy, defendant’s motives are immaterial.</p> <p>A conveyance is fraudulent if the grantor meant to hinder or defraud any of his creditors, and a charge conveying the idea that ho. must have meant to defraud all his creditors is misleading.</p>

<p>Materiality of false representations — Presumption of evidence to support a charge.</p> <p>False representations, if not material to the transaction at issue, will not avoid an agreement oven if relied qn, where the person to whom they are made is of ordinary intelligence; whore he is not, the fact should be shown.</p> <p>An order signed by a wife jointly with her husband, directing that a note which belonged to her should bo delivered to certain persons “as collateral security to their account against” the husband, amounts to a recognition or admission by her that the note was to go into their hands to secure payment of the amount owing them by her husband.</p> <p>A charge will be presumed to be supported by the evidence in a case at law, if the record affirmatively shows that. it does not contain the evidence in full.</p>

<p>Error to Cass.</p> <p>Assumrsit. Defendant brings error.</p>

<p>Presumption in favor of judgment — RetvA'n to Certiorari.</p> <p>All reasonable intendments must be made in support of a judgment rendered in the proper tribunal on due service and without defense.</p> <p>The party moving for certiorari must make out a clear case.'</p> <p>If a justice’s return to a writ of certiorari is defectivo, the party moving for it should call the justice’s attention to it by an order for farther return.</p> <p>On certiorari to a justice it cannot be presumed that he did not have evidence on all essential points, unless the evidence is all returned or unless the return affirmatively shows that on some essential point it was lacking.</p>

<p>Specific performance — Mutuality—Land-contract void if not signed by vendor.</p> <p>Specific performance may be refused for want of mutuality in a land contract where it is so drawn as to leave it optional with the grantor to retain or convoy the property.</p> <p>A written agreement for the conveyance of land is void under the statute of frauds if not signed by the party by whom the sale is to be made.</p>

<p>Habeas corpus.</p>

<p>Implied assvmipsit — Burden of proof.</p> <p>Plea ,of the general issue to an implied assumpsit denies the cause of action altogether, and leaves the plaintiff to prove not only-performance, but the understanding on which it was based. It would be different if only payment or other discharge were pleaded.</p>

<p>Chattel mortgage on after-acquired goods — Right of possession— Sale — Demand of payment before replevying the goods.</p> <p>A chattel mortgage on a stock of goods may be made to cover goods afterwards put in to keep up the stock.</p> <p>It is for the jury to determine whether there was confusion of goods in a stock of general merchandise: or whether all the goods in a store wore covered by a chattel mortgage.</p> <p>A chattel mortgage was given April 10, 1876, to secure a note payable in one year, and on April 2, 1877, a note for the amount left unpaid was given and the old note given up. There was conflicting evidence as to whether the mortgage remained in force. Held error to charge that there was no question of its valid existence to April 12, 1877, and that its filing was notice until that time; it was for the jury to determine as to these facts.</p> <p>The assignee of a note replevied a stock of goods said to be mortgaged as security. There was a dispute as to whether the mortgage was then in force. Held error to exclude evidence that before assigning the note, the assignor had, as commercial reporter, reported the stock free from mortgage.</p> <p>A mortgager of chattels has the right to make a general sale of whatever interest he owns.</p> <p>A mortgager of chattels may reserve the right to take possession of them if sold, but the right is optional and the mortgager is not in fault for not delivering the goods if they are not demanded.</p> <p>Replevin rests on the tortious taking or detention, and cannot be brought until after demand made.</p> <p>The mortgagor of chattels has the right of possession until demand is made for them, and must keep them safely until then.</p> <p>A chattel mortgage provided that the mortgagee might take possession in case the property was sold. Held that a demand of payment before the debt was due was not a demand for the goods; especially if made by the assignor of the debt from the vendor of the goods, since both had parted with their interests.</p>

<p>Error to Clinton.</p> <p>Trespass on the case for negligent injury. Defendant brings error.</p>

Assumpsit by Huntoon against Bussell for the amount of a judgment against Bussell in favor of David West and assigned by West to Huntoon.

<p>Case made from Kent.</p> <p>Replevin. Plaintiff recovered below.</p>

<p>Vacating interlocutory orders — Affidavit for attachment.</p> <p>Mandamus is the only adequate remedy to vacate an interlocutory order not touching the merits.</p> <p>• An affidavit that certain named persons, “a copartnership under the firm name of the Lake Huron & Southwestern Railway Company, are indebted” to affiant, etc., imports a joint partnership debt, and will support an attachment against such of thorn as are non-residents.</p>

<p>Private counsel in criminal prosecutions — Evidence of hank entries —Recorder’s Court of Detroit — Transfer of criminal cases to courts of concurrent jurisdiction.</p> <p>Counsel who represent private interests cannot be supposed to be impartial, and therefore cannot be retained to assist in criminal prosecutions growing out of such interests.</p> <p>An assistant prosecuting attorney has no power in the matter of retaining counsel to assist in criminal prosecutions.</p> <p>A court cannot act upon unsworn allegations of the impartiality of counsel retained to assist in a criminal prosecution, if any question is made as to the fact and the defense objects.</p> <p>The pass books and signature book of a savings bank are admissible, with the testimony of bank officers, as original documents and res gestae in showing the existence of deposits.</p> <p>Secondary evidence may be given of entries on the blotter of a bank, where there is no question of genuineness or special necessity for producing the original.</p> <p>Materiality of testimony is a question of law.</p> <p>The charter of Detroit (Act 55 of 1857) in establishing the Kecorder’s Court with exclusive jurisdiction to try crimes committed within the city, and to try such crimes on indictments found in the circuit court for Wayne county, is not unconstitutional.</p> <p>The act establishing the Becorder’s Court of Detroit, having been in existence over twenty years, during which time the validity of the court’s judgments had not been disputed, was held .entitled to such presumptions as long practical construction and acquiescence always create.</p> <p>The original jurisdiction of the circuit courts of Michigan is subject to legislative exceptions: they have jurisdiction when not prohibited. Const., Art. VI., § 8.</p> <p>The constitution does not forbid giving to a municipal court original jurisdiction of crimes committed within the municipality.</p> <p>Municipal courts established by the Legislature under Sec. 1 of Art. VI. of the constitution, need not have both civil and criminal jurisdiction, and may have jurisdiction of the kinds of cases originally triable in the circuit courts, so long as no constitutional authority of the circuit courts is interfered with.</p> <p>In Michigan both civil and criminal cases can be transferred from courts of original to courts of concurrent jurisdiction unless so far advanced as to involve conflict. Change of venue is practically a transfer.</p> <p>At common law criminal indictments were often removed before trial from various jurisdictions into tbe Queen’s Bench, and transferred from one commission to another; in the United States courts they are transferred for trial between the circuit and district courts.</p> <p>A jury for a municipal court may properly be chosen from the municipality instead of the body of the county.</p> <p>History of the Mayor’s and Becorder’s Courts of Detroit reviewed.</p>

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

<p>Suretyship — Locality of principal’s acts.</p> <p>Sureties on the bond of a sewing machine agent are not responsible for his transactions outside of the territory assigned to him by his contract with the company.</p> <p>In an action on the bond of a sewing machine agent it was held that all the papers connected with it and the material circumstances surrounding the parties and which might be supposed to have been contemplated by them, should be considered together in determining the liability upon the bond where the contract secured by it was not otherwise clear.</p>

<p>Error to St. Joseph.</p>

<p>Costs — Reduction of demand by tender.</p> <p>Costs do not go to the defendant where the amount of plaintiff’s recovery has been brought below $100 by tender.</p>

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

<p> Assignor of chose in action not liable for assignee’s tort. </p> <p>In Michigan the assignee of a chose in action can sue it in his own name or in that of his assignor.</p> <p>Permission, by the assignor of a claim to use his name in collecting it gives the assignee no authority to use any but lawful processes.</p> <p>The assignor of a chose in action is not liable for unlawful acts done by the assignee in collecting the demand if the assignor himself had no interest in it and did not direct or countenance them. So held where the assignee, suing in the assignor’s name, improperly began suit by capias, the affidavit for which was made by the assignor’s agent but not in his behalf.</p>

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

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

<p>Error to Genesee.</p> <p>[Replevin. Defendant brings error.</p>

<p>Certiorari to Henry Hoffman, Circuit Court Commissioner for Genesee County. Two cases.</p>

<p>Municipal corporations — Power to offer rewards for convictions.</p> <p>The charter of Detroit (ch. 13, sec. 14) declares. that the common council shall have power by a two-thirds vote to authorize the board of police commissioners to offer a reward for the detection and apprehension of any one found guilty of offenses against the city ordinances, or of high crimes and misdemeanors within the city. Held that in view of this provision the council has no power by a majority vote, and independently of the police commissioners, to authorize the mayor to offer rewards for the conviction of incendiaries.</p>

Bill to discharge tbe lien of a mortgage and compel the payment of the statutory penalty for refusal to discharge it on tender of the amount due.

<p>New trial — Settlement of exceptions — Costs.</p> <p>Act 8 of 1879 allowing the successor of the trial judge to settle a bill of exceptions on the stenographer’s minutes, does not authorize the vacation of an order for new trial made when there was an absolute right to it.</p> <p>Where a new trial has been allowed to one who has an absolute right to it, he cannot be compelled to settle a bill of exceptions as for the former trial.</p> <p>Costs of hearing were not allowed in full where the court after ordering a case to stand for argument, decided that the right to a new trial had been absolute and that the settlement of a bill of exceptions ought not to have been required.</p>

Joseph. Assumpsit by Schermerhorn against Conner on a promissory note signed by Frank and Nathan Hatehell, and indorsed by Conner with a guaranty of payment in these words: “When all legal means to collect the within note against Frank and Nathan Hatehell shall have been used, if said note cannot be collected then, I agree to make the sum good to J. W. Schermerhorn. M. W. Conner.” Defendant recovered and plaintiff brings error.

<p>Error to Bay.</p> <p>Garnishment. Plaintiffs bring error.</p>

<p>Insurance — Installment notes — Revival of void policy — Revocation by Commissioner of Insurance of authority to do business.</p> <p>An insurance company cannot recover against a policy-holder on an installment note oí which the installments are to be paid in advance, where the policy stipulates that so long as an installment remains due and unpaid, the policy shall be null and void as to any losses occurring during the period of default in payment.</p> <p>A written application for insurance, the policy issued thereon, and the note given by the assured in payment, are parts of the samo transaction and should be construed together in determining the rights of the parties.</p> <p>The charter of a non-mutual insurance company is not binding on the assured unless the contract of insurance provides that it shall be.</p> <p>Where a policy of insuranco provides that in ease of default in paying in advance the annual installments of a note given for the whole premium, the policy shall bo null and void until payment is made, the insurance is not to be construed as for a term of years, but as an annual insurance renewable every year for a period not exceeding such term.</p> <p>Bisk is essential to the right to recover premiums.</p> <p>In case of loss under an absolute insurance for a term of years, the company need not return anything as “unearned premium,” and may recover on an unpaid note given for the premium. But where the insurance is on the installment plan and the policy is to be void so long as there is any default in the advance payment of an installment, it can not recover on a note given for successive installments of the premium.</p> <p>A contract made void on the occurrence of a specified contingency, may sometimes by agreement be revived by the occurrence of another contingency or by the subsequent conduct of the parties.</p> <p>Where the Commissioner of Insurance has revoked the authority of a foreign insurance company to do business within the State, it cannot thereafter recover on installment notes upon which, by the terms of its policies, payments fall due in advance.</p>

Complaint for violation of city ordinance against keeping saloons open after nine o’clock in the evening. Defendant was convicted and alleges error.

<p> Waiver of objection to irregular affidavit of debt. </p> <p>Where a defendant, without being misled, allows an irregular affidavit of indebtedness, involving no question of jurisdiction, to be introduced without objection, he' cannot, after the proofs are closed, object for the first time that it proves nothing, even if it would have been error to receive it in his absence or against seasonable objection.</p>

<p>Mailing deposition — Misstatement of venue.</p> <p>Conclusions of fact upon evidence in law cases are not reviewable.</p> <p>Where a deposition was properly enclosed and directed, and in due course reached the Justice to whom it was to be addressed as required by stipulation, and there was no pretense that it had been tampered with, an objection that there was no evidence that the document had been directed and deposited in the post-office by the commissioner who had taken it, in compliance with the stipulation, has no force, if prejudicial error in directing and mailing' it is not affirmatively shown.</p> <p>A wrong venue left by clerical error at the top of a deposition that otherwise fully explained itself so that the mistake could not mislead, is not ground for excluding the deposition.</p>

The commissioners refused to allow a claim against the estate for money paid to Mrs. Smith under the will of her husband Aratus Smith, whose executor claims that it was paid under a mistaken construction of the will, the essential provisions of which were as follows: “I, Aratus Smith, * * * do make, publish and declare this my last will and testament in manner following, that is to say: Having by contract before marriage given and secured to my beloved wife, Anna Malvina…

<p>Construction of charter — Paving street railway trade.</p> <p>The requirement in the charter of’ a street railway company that it should “keep the surface of the street inside the rails and for two feet four inches outside thereof in good order and repair” was construed to mean the full width of 2 feet á inches on each side of the track.</p> <p>A city is not bound by official neglect in enforcing its ordinances.</p>

<p> Costs. </p> <p>Act 30 of 1879 reducing the register’s fees on appeals does not apply to a case where the fees had been earned before the act went into effect.</p> <p>The Supreme Court will not usually review matters of fact bearing on the taxation of costs,- on affidavits. '</p>

<p>Motion for an order to show cause.</p>

<p>Receiver — Interlocutory order.</p> <p>An order appointing a receiver to take possession of securities claimed by a trustee, but the right to which is disputed, is interlocutory and not appealable.</p> <p>Insolvency of a trustee or receiver may be sufficient reason for •superseding him.</p>

<p>Railroads — Right of way over public lands after entry of homesteader — Relation from patent to. date of entry — Pay for improvements.</p> <p>The rule that a court of equity is not the proper tribunal for determining- the title to lands applies only where the legal remedy is plain and adequate; which is not the case if in the suit at law the title comes only incidentally under examination, and a decision for one party leaves an apparent title of record in the other.</p> <p>Any grant by the United States must be inoperative as against another which by construction of law antedates it.</p> <p>Railways, though not strictly “highways,” like plank and macadamized roads, are highways within the meaning of U. S. Rev. Stat., § 2477. which grants the right of way for the construction of highways across the public lands.</p> <p>A homestead entry vests no title, but gives a right of possession which may bo' perfected by continued occupancy and improvement; and if not so perfected, reverts to the government.</p> <p>One who has perfected his homestead entry is entitled to a patent which relates back to the time when the entry was made, and takes date with it.</p> <p>Under U. S. Rev. Stat., § 2477, granting to highways the right of way across the public lands, a patent is not necessary; the offer and its acceptance by the construction of the road are equivalent to a grant that is good as against the government, and also as against a subsequent patentee, unless the latter’s patent antedates the grant by relation, or unless his equities preclude the acquisition of adverse rights.</p> <p>The doctrine of relation is remedial, and its use is to prevent wrongs and punish trespasses; but it can never .be so applied as to make wrong that which was innocent when done, or to divest rights acquired since the time from which the relation dates.</p> <p>Whether a homesteader’s inchoate title is such an interest as can be appropriated under the General Railroad Law by adversary proceeding — Q.</p> <p>The construction of its road by a railway company under a public act granting the right of way across the public lands would be both a sufficient and an equitable consideration for the right of way.</p> <p>A right of way perfected by a railway company under TT. S.. Kev. Stat. § 2477, cannot be defeated by mere relation back from a homesteader’s subsequent patent to the time of his antecedent entry on the land.</p> <p>A homesteader is entitled to compensation for improvements made on land over which a railroad company has afterwards obtained the right of way.</p>

<p>Fatal negligence — Verdict and proof must conform to declaration— Concessions bind counsel — Composite charges.</p> <p>A declaration for negligent injury must aver the fact and the manner of negligence: and plaintiff should be confined to what is set forth in his deelaiation.</p> <p>Counsel’s contradiction of the record is of no force.</p> <p>Defendant’s counsel was shown by the record to have told the jury that in a certain contingency they should find for plaintiff. Held that he could not afterwards take any ground inconsistent , with the concession, or claim to be injured by rulings in accord with it.</p> <p>Charges made up of selections from'the requests of both parties, supplemented by general judicial observations, are disapproved .as incoherent, obscure, and sometimes ambiguous.</p> <p>In charging the jury in an action for fatal negligence, it is improper for the judge to abandon the grounds relied on in the declaration and direct their attention to other considerations as tending to support the action.</p>

Bill to establish complainant’s title to an insurance policy and to enjoin the company from paying it to its joint defendant. Complainant appeals.

Ejectment by Dexter as heir-at-law of a former owner of the land, against Cranston who claimed title under a guardian’s sale. Defendant had judgment and plaintiff brings error.

<p>Bridging navigable streams — Estoppel.</p> <p>Boards of supervisors have jurisdiction to act upon petitions for leave to bridge navigable streams only -when the petitions answer the requirements of Comp. L., §§ 487-9.</p> <p>A petition for leave to bridge a navigable stream must specify the proposed location of the bridge with reasonable precision; this may depend largely on the extent of the commercial interests that may be involved in. the location, and the convenience ol the public; greater particularity would be needed if the bridge is to be built where there is a town than where there is not. The petition must also describe the bridge with particularity; as by indicating the location of the draws.</p> <p>The statutory authority conferred upon boards of supervisors to regulate tho bridging of navigable streams is a trust that must be executed by themselves; they cannot delegate it to others, especially to parties concerned in any details requiring the exorcise of their judgment, such as the location or character of the bridge.</p> <p>That part of a river bottom that would lie between the boundaries of a riparian owner if extended to the middle of the stream, belongs to the riparian owner.</p> <p>The consent of a riparian owner to the building of a bridge on his premises amounts to a license, which is. revocable, and is revoked by conveyance of the property.</p> <p>Where a licensee to use land has made costly improvements in reliance on tho license, it seems that he should have adequate protection against its revocation.</p> <p>A question not raised by the record and without any finding of facts to support it, cannot be considered in the Supreme Court.</p> <p>The doctrine of estoppel rests on the making of direct or indirect assertions, promises or assurances by one party on which another has acted under such circumstances that he would be seriously prejudiced if the assertions were allowed to be disproved, or the promises or assurances withdrawn; but it should bo applied only where the facts calling for it are unquestionable and tho wrong to be prevented is undoubted.</p> <p>The application of the doctrine of estoppel is a mixed question of law and fact, and in cases of jury trial must be submitted to tho jury with proper instructions, and the conclusion from the evidence must be drawn by the jury and not by tho court.</p> <p>A mere statement of evidence without a finding of facts cannot enable a court to determine whether the doctrine of estoppel should or should not be applied; nor present any question to an appellate court when the trial court has not declared its opinion.</p> <p>The appropriation of plaintiff’s land in the bed of a stream to support the pier of a bridge is not an injury for which recovery can be had under a declaration complaining of the bridge only as a hindrance to the profitable use of plaintiff’s dock and warehouse.</p>

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

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

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

<p>Affidavit of non-execution — Sill-book entries.</p> <p>An affidavit of non-execution filed with the plea leaves the plaintiff the burden of showing that the paper was signed by the defendant as alleged in the declaration.</p> <p>Entries in the bill-book of a bank are admissible to fix the original dates of an altered bill of exchange only in connection, with testimony tending to show that they were accurately made from the original or from a correct memorandum of it.</p> <p>All the testimony of a' witness should be taken together in determining whether it fairly tends to establish facts entitling documentary evidence to be admitted; and it is for the court and not the jury to decide whether it does so.</p> <p>Where testimony fairly tends to show facts entitling documents to be admitted in evidence, the Supreme Court will not review the conclusion of the trial judge as to its weight.</p> <p>Evidence tending to prove facts not in question is inadmissible.</p> <p>Where a bank entry is incorrect on its face in ono particular, the fact is entitled to be considered as bearing on its acouracy in other respects.</p>

Replevin by plaintiffs in error against Brock as sheriff, for a quantity of hoops attached by him as the property of George Weatherby, who had previously given plaintiffs- an instrument in the form of a bill of sale embracing the property attached. The. court below directed a verdict for defendant and plaintiffs bring error.

Bill to revive suit and enforce decree for the benefit of an assignee of notes, mortgage and decree. # Defendant McClintock appeals.

<p>Error to Bay.</p> <p>Replevin. Plaintiffs bring error.</p>

Appeals from Bay. Bills to set aside conveyances. The cases were heard below on bill and demurrer and decrees entered dismissing the bills. Complainants appeal.

<p> Husband’s liability for work to be done on the wife’s sole property. </p> <p>Where a hush and contracted on his own responsibility for work to be done on his wife’s house, and the other party to the contract, knowing it to be hers and that she was consulted and gave directions as to the work, dealt with the husband as sole contractor and not as her agent, ho could not recover against the wife for the work.</p>

Clair. Eeplevin by. Larned for' a span of horses which he claimed to have bought of William Eobinson and which McMillan, as deputy sheriff, levied on under execution in favor of McMorran against Eobinson, and later in the same day under another execution against both Eobinson and Larned.

<p>Findings — Variance between findings and declaration.</p> <p>Endings of fact which though defective were not prejudicial to the complaining party, and which he did not ask to have amended under Circuit Court Kule 88, are not considered on error.</p> <p>Where no basis is shown for a judgment for plaintiff, if there has been no mis-trial defendant must have judgment; and it is immaterial whether the reason assigned for it is correct or not.</p> <p>A declaration based upon an assignment of choses in action alleged to have been made by certain specified persons as co-owners, does not support a claim of title based on a finding that the assignment was made by one of them in tho name of a firm composed of both, after the other had withdrawn from the partnership.</p>

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

<p>Appeal from Jackson.</p> <p>Foreclosure. Defendants appeal.</p>

<p>Appeal from Eaton.</p> <p>Foreclosure. Defendants appeal.</p>

<p>Error to Wayne.</p> <p>Appeal from probate order admitting the -will of James Abbott to probate. Contestants bring error.</p>

<p>Error to Eaton.</p> <p>Assumpsit. Plaintiff brings, error.</p>

Mandamus to compel the respondent to pay a proportion of the orders of a school district of which it was formerly a part.

<p> Mandamus to aldermen. </p> <p>Mandamus does not lie to compel aldermen to attend meetings of the common council, and to perform their general official duties regularly.</p>

Mandamus. Relator had judgment in a case tried by-respondent. After the case had gone to judgment, the judge discovered as he supposed, that he was sufficiently interested in the matters involved, to bring him within the statutory prohibition against the trial of a case by an interested person, and he accordingly vacated the judgment and ordered a new trial. Relator moves for an order to respondent to show cause why he should not be compelled to vacate this order.

Mrs. McDowd appealed from the order of a circuit court commissioner to the circuit court, and as the circuit judge fixed the security for costs required of the defendant, who is a non-resident, at only $25, she asks a mandamus to compel him to require full security.

<p>Construction of mils — Perpetuities.</p> <p>The interpretation and legal consequences of a will are the only matters that can cofne in question after it has been duly admitted to probate.</p> <p>Courts cannot inquire into the propriety of any disposition which a testator sees fit to make of his property by a legally executed will so long as it is not unlawful; nor can they adopt astute constructions to defeat provisions claimed to be unjust.</p> <p>A devise of stores attached to the freehold and forming a part of realty also belonging to the testator, covers the ground on which they stand.</p> <p>Accumulations under a will, of the income of personal property for any number of lives in being and for twenty-one years longer, are not forbidden in Michigan; nor are provisions restraining the alienation of personalty for such period.</p> <p>The application of rules against perpetuities depends on whether the interest devised is vested or not.</p> <p>If an estate is actually vested by a will, subject only to certain trusts, the character of the trusts cannot concern those heirs at law who are not legatees.</p> <p>Substance rather than form must be regarded in construing wills; and all intendments must be made to prevent a partial intestacy.</p> <p>Wills should bo construed if possible in favor of vesting interests; and future interests should be treated as vested where there is any present interest in the income of the property.</p> <p>A devise to the minor children of a specified person or to the survivors of them, of the net accumulations of a mixed fund of realty and personalty to be paid to them annually after the youngest reáchod majority until a certain date, the entire ostato being held in trust till then for the purpose of freeing it from an encumbrance, and to be then turned over to the devisees as tenants in common, was held to create a present vested estate in the legatees; to contemplate survivorship at the testatrix’s death, and not that the last survivor should take the whole estate to the exclusion of the descendants of the other legatees; and in effect to give to the same devisees the entire present and future beneficial estate subject to certain distinct and independent trusts for retaining the income during their minority and for finally freeing the estate, which were also for their benefit.</p> <p>Where a trust under a will clearly designates the interests to be enjoyed and the persons who are to enjoy them,, the expiration of the purposes of thd trust gives such a legal character to these interests that no conveyance from the trustees is necessary to pass them.</p> <p>Where a will creates vested interests subject to trusts that might otherwise suspend the power of alienation beyond two lives in being, the trusts would simply be void encumbrances and the estate would be left clear.</p> <p>An estate subject to a long lease is nevertheless a present estate in possession, though there be neither direct occupation nor receipt of profits.</p> <p>A lease provided for its.own renewal in case the appraised value of buildings erected by the lessee should not be paid at its expiration. 'Held thpt a provision in a devise covering this and other property, real and personal, by which a certain sum was to be annually set aside from the income of the whole to constitute a sinking fund to pay for the buildings, was not in violation of the statute against accumulations.</p> <p>A lease for years does not contravene the statutes against perpetuities; nor do such trusts as may be necessary to save estates from being sacrificed to pay encumbrances and preserve land as such for devisees.</p> <p>A will devised a mixed fund of realty and personalty to certain minors, but provided that a certain sum should be annually set aside from the income arising therefrom, to free the realty devised from a lease which after testatrix’s death had eighteen years yet to run, and would then have to be renewed for forty years unless the appraised value of improvements placed upon it by the lessee should be paid. The rest of the net income of the property was to be held in trust for the minors until the youngest should become of age. The will was held valid and not in violation of the statutes against perpetuities.</p> <p>Comp. L., 4104-6 forbids accumulations of rents and profits “for a longer period than during the minority of the persons intended to be benefited thereby.” Held that this language is not inconsistent with a provision for accumulating until the youngest of several minors becomes of ago.</p> <p>The statute forbiddiug the accumulation of rents and profits is simply to prevent tying up real estate for purposes of accumulation during extended periods so that its continued rental might keep the property entire and undisposed of, and build up a considerable fund in connection with a landed estate.</p> <p>Where trustees designated by a will for any beneficial trust purpose are not required to hold any estate beyond one for a term of years, they take no greater absolute estate than is co-extensive with the trust; aud as to so much of the estate as is not needed to carry out a valid trust, their authority is no more than a power and does not prevent a devolution of the estate. Comp. L., §§ 4127-8.</p> <p>In Michigan a trust imposed by will for raising money out of the rents and profits to pay off encumbrances on an estate devised to minors, is valid, and the trustee can be relieved from it only by the action of all the beneficiaries after they become of age: the charge cannot be apportioned by undivided shares.</p> <p>Courts are bound to consider the interests of infant legatees in an appeal from a construction of the will whether the infants have appealed or not.</p> <p>Whatever a testator might lawfully have done himself he can leave to bo done by trustees.</p> <p>In Michigan there is no authority for charging an estate with the expenses, beyond taxable costs, of an appeal in equity by heirs at law from the construction of a will.</p>

<p> Replevin for properly seised under federal process. </p> <p>Replevin will lie in a justice’s court to recover property wrongfully seized on federal process by a United States marshal, if its value is below the jurisdictional limit of the federal court and ■ within that of the justice.</p> <p>The value of property as stated in an affidavit for a writ of replevin is presumed to be its true value until otherwise shown in subsequent proceedings.</p> <p>It seems that a plea in abatement to an action of replevin for goods seized on process against a third person is insufficient if it merely alleges that defendant seized them under a certain described execution without also alleging that they were seized as the property of the defendant named therein or as liable to seizure for his debt.</p>

<p>Equity — Delay in asserting rights.</p> <p>A bill was filed to establish a right to profits from a mine and a division of the property, complainant claiming under a lease of an undivided interest in the mining grant, the remaining interest including the reversionary right having long before passed to dofendant. It was held properly dismissed for unconscionable delay, on proof that complainant with full knowledge of what was being done had allowed defendant to expend money and erect costly works in order to develop the mineral resources of the land, without asserting his claim in court for more than twenty years after, defendant had acquired its original interest in the property.</p> <p>Proofs in equity not justified by the bill cannot be regarded.</p>

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

Trover by Richards for a crop of wheat threshed and carried away from land which he had bought from Joseph Hawes, by James Welsh who bid off the wheat for the defendant George W. Welsh at a sale on execution against Thonias Watkins who had sown it on the land under a contract with Hawes for its purchase, but had afterwards on making default in payment surrendered the contract and the land to Hawes. Plaintiff recovered and defendant brings error.-

<p>Error fo Kalamazoo.</p>

<p> Yerme of transitory actions. </p> <p>Transitory actions can be brought in those counties only where the court would be legally entitled to try and decide them on their merits; they cannot be begun in a county where neither party resides, to be thereafter removed to the proper county for trial.</p> <p>Jurisdiction of transitory actions may be questioned and decided on motion based upon affidavits, if the facts are not of record or ■within judicial notice; a plea is not essential, and the party asserting the jurisdiction- can waive a formal issue on the motion.</p> <p>A circuit court has power to-decide on its own jurisdiction subject to review.</p>

<p>Appeal from the Superior Court of Detroit.</p> <p>Foreclosure. Complainant appeals.</p>

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

<p> Forced, plea of guilty will not sustain conviction. </p> <p>One cannot be prosecuted for a crime until he has been subjected. to a preliminary examination by a justice or other lawful officer, or has had an opportunity to be so examined.</p> <p>"When a court gives a prisoner the alternative of either submitting to a severe sentence or withdrawing a plea of not guilty, pleading guilty, paying a heavy fine and estopping himself from bringing error, a plea of guilty so extorted will not sustain a conviction.</p>

<p>Fixtures — Machinery.</p> <p>Machinery was put up in a drill-house on another’s land for the temporary purpose of boring a salt well, and was removable without injuring tho freehold. Held, that it was not a fixture and was not covered by a conveyance of the land.</p> <p>Where machinery has not become a fixture, the purchaser of the land cannot impose terms on its removal by the owner, and if ■ the latter agrees to terms without a consideration he is not bound by them or estopped from claiming title and possession.</p> <p>Where there is no cause of action it is not material whether rulings adverse to the plaintiff were or were not correct.</p>

<p>Municipal corporations — Costs of repairing bridges.</p> <p>The charter of Paw Paw in giving the village control of the building and mending of all bridges within it but making the cost a township charge is inharmonious; unless the township and village authorities unite, the village has exclusive control of the subject and is exclusively liable; and the township authorities cannot enforce the obligation of a citizen of the village to repair a bridge over his mill-race.</p>

Certiorari from the circuit court to a township board. The writ was dismissed for want of jurisdiction. Plaintiff in certiorari brings error.

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

<p>Appeal from Lake.</p> <p>Bill to restrain the sale of land for taxes. Defendant appeals.</p>

<p>Certiorari to commissioner of highways.</p>

<p>Damages for failure to complete performance cannot he offset against recovery by assignee — Estimate of damages inadmissible without showing the elements of which it was made up.</p> <p>The assignee of the right of action on a contract is entitled to recover exactly as the assignor might if no assignment had been made.</p> <p>Where a contractor fails to complete performance within the time fixed, and the work is taken out of his hands, he or his assignee can recover at contract rates for work done and materials furnished, less any damage defendant may have sustained through the contractor’s failure to finish the work.</p> <p>Damages for failure to complete performance under a contract cannot be set off against a recovery by an assignee of the contractor’s right of action for the work actually done, but must be sued for in an action against the contractor himself. And if the assignee sues upon two contracts, an excess of damages on one oannot be set off against his recovery on the other. Damages for failure to carry out a contract cannot be proved by a mere estimate in gross; the elements of the damage must be shown.</p>

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

<p>Certiorari to the board of supervisors.</p>

Mandamus to vacate order of removal to the Superior Court of Detroit. Relator, being a resident of Mt. Clemens, sued Miller, a resident of Detroit, for money had and received, filing his declaration in the Wayne Circuit Court. Miller entered his appearance and at the same time filed a bond for the removal of the case into the Superior Court of Detroit, in accordance with § 21 of Act 59 of 1873.

<p>Certiorari to the circuit court for the county of St. Clair.</p>

<p>Estoppel by acquiescence from disputing findings of fact — Claim against estate for care bestowed on decedent — Delayed administration on estate — interest on claims.</p> <p>Where an administrator excepted to a referee’s finding in favor of a claim against the estate, and afterwards acquiesced in the decision of the circuit judge confirming the finding but overruling the conclusion of law, it was held that on error brought by the claimant he could not contest the findings of fact.</p> <p>A man lived much of his time in his sister’s family where his washing and ironing was done and he was taken care of when sick. He never paid anything, but repeatedly said he would pay for all that was done for him, and it did not appear that no return was expected. Held that his estate was liable on an implied assumpsit for the services done him.</p> <p>Endings of fact are in the nature of special verdicts and are conclusive on the appellate court.</p> <p>Where the brother-in-law of an intestate, believing it to be the wish of all interested, took charge of decedent’s property in order to settle his affairs and bought an outstanding note and mortgage against him which he voluntarily discharged, it was held that he was entitled on a subsequent administration to charge the estate with the amount.</p> <p>Where a claimant against an estate had not only neglected to procure administration but had delayed it, interest was not allowed on his claims as damages for delay in payment.</p>

<p>Special counts in declaration impleading surety — Garnishee’s payment to be applied to the particular demand indicated by him —Entry discharging judgment may be disputed.</p> <p>A declaration against a justice and Ms sureties for money received by him as justice, must set forth the grounds of the specific liability in a special count; and tho general counts added thereto are surplusage.</p> <p>Payment by a garnishee defendant upon a particular demand is in the hands of a justice as payment on that demand only and on no other; and the justice is not liable for the money received to one who holds a judgment against the same garnishee on another demand.</p> <p>The entry of the words “Judgment discharged" written by a justice across the face of a judgment is no more conclusive than a receipt; it is only prima facie evidence of payment and can be proved incorrect.</p>

Assumpsit by Welsh, a New York merchant, for the price of thirty half-barrels of herring sold to Henkel, a merchant at Detroit.

<p>Error to Kalamazoo.</p> <p>Trespass on the cáse. Defendant brings error.</p>

<p>Note — Denial of execution — Consideration.</p> <p>Eefusal of leave to deny the execution of a note on affidavit after appeal from a justice, is discretionary and not reviewable.</p> <p>Evidence to impeach the execution of a note is inadmissible if it has not been denied by affidavit attached to the plea.</p> <p>Where the execution of a corporate note is admitted, evidence in defense to show that it was given to satisfy a claim against another is inadmissible to show want of consideration; it would only show that the consideration was another’s liability, and defendant’s right to assume the liability cannot be questioned if execution has been admitted.</p> <p>Evidence that a note was given for another’s debt is not enough to place on the holder the burden of proving that he paid value for it.</p>

<p> Assignment does not cover goods if title has not passed. </p> <p>Goods were forwarded for acceptance if satisfactory, but acceptance and payment was unreasonably delayed and the consignee meanwhile assigned. Held that title had not passed and the goods were not covered by the assignment.</p>

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

<p>Laying out a out de sao as a public highway — damages.</p> <p>A private way cannot be converted into a public highway without compensation to the owner of the lands over which it runs.</p> <p>A private way across private property can be closed by the owner of the land; and the fact that after proceedings to lay out such a road as a public highway had been quashed, the owner still left it open and in public use, cannot be used to reduce his damages on later proceedings to open it to the public.</p> <p>A road that can be advantageously used by the public only by trespassing on private property, is not properly a public highway.</p>

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

<p>Statute of limitations — Surety.</p> <p>As between a debtor and Ms surety it does not concern the creditor whether money paid Mm belongs to one or the other.</p> <p>Where a debtor and Ms surety go to the creditor together for the express purpose of maMng a payment and for that alone, and both apparently cooperate in the transaction though the debtor alone handles the money, the creditor has a right to consider it a joint payment binding the surety under the statute of limitations, unless the surety notifies Mm that it is not so.</p>

<p>Appeal from Berrien.</p> <p>Foreclosure. Complainant and Jarvis appeal from an order setting aside sale.</p>

<p>Lease — Wa%ver of conditions — Re-entry,</p> <p>A lease of wine and billiard-rooms provided for re-entry in case of non-performance of any of the covenants at any of the times mentioned for the performance thereof. There were conditions against encumbering furniture or violating the law and ordinances relating to the business. Held that as these conditions were continuous in their nature, any breach of them would be a breach at the time mentioned for their performance; and would be a cause of forfeiture.</p> <p>Continuing conditions in a lease are not necessarily waived by receipt of rent after they have been violated; the lessor can exercise forbearance in furtherance of his own interests and those of the tenant.</p> <p>A lease of a billiard-room provided that in case of the violation of conditions, the lessor might re-enter, have again, retain, re-possess, etc. Held that absolute notice to quit and demand of possession, made at such a time and place that if complied with possession would be at once secured, was a sufficient re-entry.</p>

<p>Land-contract — Default—Waiver—Notice to tenant at will.</p> <p>A contractor who has not fulfilled his own obligations cannot complain of the default of the other party.</p> <p>A contract provided that the vendee of a house should pay a certain sum on taking possession, when completed, on or before a certain date. Held, that payment in advance and taking possession while the house was still unfinished did not waive the vendor’s obligation to finish it.</p> <p>Evidence that it was understood between the parties to a contract for the sale of a house, that taking possession in advance of the time fixed for doing so would not affect their rights and liabilities under the contract, was held admissible to show that the vendee did not thereby waive the vendor’s obligation to complete it.</p> <p>Where a house was sold under a contract and the vendee waived the contract right to its completion by a certain date, and was allowed to take possession in advance, it was held that the contract had been varied, and that the vendee did not hold under its conditions, but under the subsequent provisions, and was therefore a tenant at will, and entitled under Comp. L., § 4304, to three months’ notice to quit.</p>

<p>Error to Van Burén.</p> <p>Appeal from so much of an order of the probate court as disallowed certain items in the account of appellant acting as administrator. The widow and heirs of the intestate brings error.</p>

<p>Error to Superior Court of Grand Bapids.</p> <p>Trespass on the case for false representations. Plaintiff brings error.</p>

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

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

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

<p> Injury from being run against by a wagon. </p> <p>No action lies against a man for injuries from being run against by Ms wagon driven by Ms son, where there is nothing to indicate that the son was acting for his father or was under Ms control.</p>

<p>Arbitration and award — Reference.</p> <p>An award will not sustain a judgment if not acknowledged (Comp. L., § 6891) and if it does not in all respects conform to the statute.</p> <p>Where an award does not conform to the statute, it is enforceable if at all, by bill or action as a cause of action, and not as a substitute for a verdict.</p> <p>A reference will not sustain a judgment unless it conforms to the statute.</p> <p>A reference must be conducted like a trial by a court, and contemplates the introduction of testimony with rulings and findings of fact and law subject to revision for errors.</p> <p>An agreement entitled in one suit by which another in a different court between the same parties was to be discontinued on the appointment of arbitrators to settle both, was held not void, but extra-judicial.</p>

Assumpsit by Theodore H. Hinchman and others against Charles A. Watson, William D. Wait and Thomas G. Sutherland, co-partners. The declaration was filed Feb. 10, 1879. Watson pleaded the general issue with notice of set off, March 1st. Wait did not appear, and his default was entered and made absolute March 13th.

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

<p>Dismissal of bill on demurrer — Right to redeem from prior mortgage — Costs.</p> <p>Where issue is joined on demurrer, complainant is nevertheless entitled to put in his proofs and have the case come up on the facts.</p> <p>A bill should not be dismissed on demurrer unless the defects are not amendable or the complainant declines to amend.</p> <p>'A second mortgagee is entitled to redeem from a prior mortgage and have the benefit of an assignment of the mortgage.</p> <p>Where one who seeks to enforce a right to redeem from a prior mortgage, omits to keep good his tender in his hill, the omission, as in cases of specific performance, only raises ta question of costs.</p> <p>Where a second mortgagee, on seeking to redeem from a prior mortgage tendered the proper amount on demanding an assignment of the mortgage, and renewed the tender when the senior mortgagee began foreclosure proceedings, it was held that he was not justly chargeable with costs for omitting to keep good the tender in a bill to enforce his right to redeem.</p>

Mandamus to set aside a capias on the ground that it was not made returnable on the first day of the term, which was the 6th of October, 1879. The writ directed the sheriff to bring the relator before the circuit court, etc., “on the seventh day of October, A. D. 1879, that being the first day of the next succeeding term,” etc.

<p>Mandamus to compel register to record deed held in escrow.</p> <p>Mandamus does not lie at the suit of a grantee to compel a register of deeds to record a deed delivered to Mm in escrow and withheld hy the grantor’s order.</p> <p>A grantee should establish Ms right to a deed held in escrow by a hill in equity or other proper proceeding against the grantor.</p> <p>Belief cannot he given as against the interests of any person not made a party to the proceeding and duly notified.</p>

<p>Administrator’s Sale of Intestate’s Lands — Plats.</p> <p>An administrator cannot make a public plat of his intestate’s lands under a probate license to sell them.</p> <p>An administrator’s sale of lands not platted may be made, with the probate court’s approval, by boundaries running with the centers of streets and conforming to streets and alleys to be opened by public authority, as far as they can be ascertained.</p>

<p>Mandamus to compel the settlement of a bill of exceptions.</p>

<p>Mandamus to vacate judgment.</p>

<p> Amendments to Pleadings. </p> <p>' The discretion of a trial judge in refusing to allow amendments to pleadings, will not be reviewed if it is not abused.</p>

<p>Mandamus to compel the Attorney General to file an information in the nature of quo ivarranto against a railway corporation.</p>

<p>Appeal from Lapeer.</p> <p>Bill to quiet title and set aside .a mortgage. Defendants appeal.</p>

<p>Libel — Good faith — Physician’s testimony — Exemplary damages.</p> <p>It is the right and duty of newspapers to discuss measures relating to the health, welfare, comfort and happiness of the people. But this will not justify libelous statements.</p> <p>Where exemplary damages are sought for libel, defendant may introduce circumstances tending to show that he acted in good faith and with all proper precautions, and had good cause to-believe that the statement complained of was true.</p> <p>Where an alleged libelous article is one of a series relating to a matter of public concern, defendant may introduce them all to show good faith on his part.</p> <p>A newspaper charged a city physician with causing death by the careless use of the trocar in vaccination after its use had been forbidden by the board of health. Held that in an action for libel the defendant might show that plaintiff had, in his presence, justified its use.</p> <p>Physicians’ testimony as to the condition of sick persons is admissible where no confidential relations are violated in giving it.</p> <p>The statute excluding the testimony of physicians as to facts learned in attendance upon their patients is merely to prevent the abuse of the confidential relation between a physician and his patient and is for the latter’s protection. Comp. L., § 5913.</p>

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