42 Mich.

Volume 42 — Michigan Reports

164 opinions

42 Mich. 1Ortmann v. Sovereign (1879)
Error to Bay. Eeplevin. ' Plaintiffs bring error.
42 Mich. 6Smith v. Lozo (1879)
 Liability for ratification of trespass. One cannot be liable as for the ratification of a tort that was not committed in his interest; so held where suit was brought against the general agent of a sewing machine company for a forcible trespass committed by employees while removing a machine by his direction and in compliance with the orders of the company from the premises of one who held it under a sewing machine lease which had been forfeited. A “sewing machine lease” gave the privilege of purchasing the machine by paying the full amount of the rent at any time during the continuance of the lease, but reserved to the lessor all property in the machine, and the right to control it until the purchase money was paid in full, and also gave him the right to seize it on default in payment. Held that the title continued in the lessor, and that as matter of law he had a right to dispossess the lessee in case of default.
42 Mich. 12Briggs v. Mette (1879)
Error to Wayne. Replevin. Plaintiff brings error.
42 Mich. 15O'Brien v. O'Brien (1879)
 ■Executions on transcripts of justices’ judgments. Execution issuedfrom tho circuit court on a transcript of a justice’s judgment in a suit begun by summons, is invalid if the transcript' was filed in the circuit court before the expiration of the five days allowed by Comp. L., § 5395, before execution may issue. Proceedings in regard to transcripts of justices’ judgments must conform strictly to statute.
42 Mich. 17Dewey v. Ingersoll (1879)
Foreclosure of a mortgage given by Clarissa Ingersoll, dated April 20, 1868, and covering premises a part of which she afterwards sold by warranty deed dated Nov. 26, 1872, to her daughter Agnes Dakin, who is sued as a subsequent encumbrancer, and who filed a separate answer claiming that in September, 1873, without her knowledge or consent, complainants had released from the .mortgage lands worth more than double the amount claimed to be due, and which she insisted should…
42 Mich. 19Michigan Mutual Life Insurance v. Bowes (1879)
Error to Wayne. Assumpsit on insurance policy. Defendant brings error.
42 Mich. 24Hunt v. Chapin (1879)
Tax titles — Presumption of validity of tax. A tax-deed based upon distinct taxes of different years is valid if any one of the sales was valid, whether the others were or not. Where the board of supervisors had ordered certain specified taxes spread upon the rolls, it was held that the fact that others were added would not invalidate the tax without an affirmative show ing that, they were not duly authorized. Comp. R., § 1129. The county clerk is not required to certify to the township treasurer’s return to the county treasurer, but to the proceedings had on extending the time for' collecting taxes,' and to the accuracy of the county treasurer’s transcript to the Auditor General.
42 Mich. 27Watson v. Hinchman (1879)
Certiorari to Circuit Court Commissioner for Wayne county.
42 Mich. 30Iron Cliffs Co. v. Gingrass (1879)
Error to Marquette. Assumpsit. Defendant brings error.
42 Mich. 31Hirth v. Pfeifle (1879)
Waiver by garnishee — Estoppel by garnislvment proceedings. A garnishee cannot waive or admit away the rights of the principal defendant, as by disclosing that the debt was due to some other person. The lawful owner of a claim can only be estopped by garnishment proceedings in which the garnishee has been placed, by regular course of law, in position to bind him. It is no defense to a suit on a joint note that one of the defendants i had been garnished in a former suit as indebted to the husband of the plaintiff in the later one, and had admitted that he was indebted to the husband on the note in suit. Gamishment process cannot reach a joint debt where there is service on only one oí the debtors.
42 Mich. 34Quincy Mining Co. v. Kitts (1879)
Master and servant — Negligence of fellow-employees. A servant cannot recover from his master for an injury received in his service without showing some fault on the part of the master. A servant assumes all the usual risks of his employment including the risk of injury from the carelessness of fellow-servants, provided they have been prudently chosen and not retained in the employer’s service after he has knowledge of their unfitness or negligence. A master cannot, by delegating it to another, relieve himself of the duty of exercising due care in the employment and retention of competent servants; and if he does delegate it to a general manager, foreman or superintendent, he remains responsible. A servant does nob assume the risk of the master’s negligence, or of that of any one to whom the master entrusts his superintending authority. A servant assumes the risk of a fellow-servant’s negligence even though the latter is in a position of greater responsibility or a different line of employment; so long as both are in the same general business, so that the negligence of one may contribute to the danger of the other.
42 Mich. 41Knapp v. Lee (1879)
Suit by foreign executor — Set-off—Judgment in bar. A foreign executor can sue in bis own name on a note belonging to the estate and payable to bearer; and any claim held by the defendant against the estate can be presented as set-off. But if the note were non-negotiable, or payable to order and not ! indorsed, the executor should sue in his official character. Judgment recovered in Michigan by a foreign executor suing in his own name on a note belonging to the estate and payable to bearer, would bar any subsequent proceeding against the defendant, and the executor would be accountable officially in the court which had jurisdiction of the estate.
42 Mich. 44Buhl v. Trowbridge (1879)
Case made from Kent. Assumpsit. Plaintiffs had judgment below.
42 Mich. 46Blanchard v. Brown (1879)
Damages for wrongful attachment — Custody of the property. In a suit for damages from a wrongful attachment, the affidavit for attachment. and the other proceedings are properly put in evidence by the defendant. A writ of attachment is good if the party who sues it out has good reason to believe that a proper cause exists for it; but in proceedings to dissolve it, the existence of reasons for his belief is not necessarily in issue, but the court inquires whether the defendant had actually done as plaintiff believed. In an action for damages from a wrongful attachment, where malice is neither alleged nor shown, it is assumed that there was no wrong in issuing the writ. Attached property is under the ' control of the officer attaching it, and not of the plaintiff in attachment, and the latter is not responsible for its detention after dissolution of the writ; it is for the defendant to see to the enforcement of the order restoring the property.
42 Mich. 49Coe v. Wager (1879)
Voluntary services — Waiving tort — Common interest — Work on shares. Ño one is bound to pay for volunteered services rendered under circumstances which do not fairly indicate an expectation of reward. •.So held where a man living in his father-in-law’s family without paying board sued for work which he did on the latter’s farm. Under a contract by which lessees work a farm on shares, it seems to be their duty to deliver to the lessor his share, and not his duty to parcel their shares out to them. One may waive trover and sue in assumpsit for property which defendant has appropriated, but he must show just what property has been so used. Where parties live in common in expectation of the land of one of them which the others work on shares, the latter cannot recover back from the land owner anything that was meanwhile used in the common interest. Each party would be estopped meanwhile by daily acquiescence from claiming pay for services rendered or articles consumed, and a contract to refund cannot be implied against the distinct understanding on which the parties have acted. If it was understood that property belonging to one of them should go into the common stock, he cannot claim, if anything, more than so much of it as was not consumed with his consent in the common service. Where one who lives in his father-in-law’s family without paying board, works for his father-in-law under circumstances that do not indicate that his services are to be compensated, it is for the jury to determine whether wages are due him.
42 Mich. 53McClung v. McClung (1879)
Kellogg, circuit court commissioner, fixing the amount of real estate to be set apart in satisfaction of a decree for alimony.
42 Mich. 54Woolston v. Smead (1879)
Error to Clinton. Replevin. Plaintiff brings error.
42 Mich. 58Daniells v. Aldrich (1879)
Warranty of a horse — Evidence—Hypothetical questions. In a suit on a warranty of a horse, evidence that two years after he was bought he killed himself in a fit of balking, is not too remote if it is shown that his balking was a common habit extending through the whole time. Evidence may also be given that he was balky three years before the sale. Hypothetical questions are not erroneous if they contain no assumption not justified by the evidence. In a suit on a warranty of a horse, it was shown positively, and was undisputed, that defendant assured plaintiff that the animal was a good work horse; that he was true and all right, and true as a dollar, kind as a kitten, and as good a horse as any in the county. Held that a refusal to require the jury to find specifically and report whether the defendant warranted the horse, and if so, in what words, was not error, as the evidence, if believed, was enough to make out a warranty and there could not have been any finding inconsistent with it.
42 Mich. 60Beecher v. Bartlett (1879)
Error to Superior Court of Detroit. Replevin. Defendant brings error.
42 Mich. 62Robbins v. Brooks (1879)
Set-off of joint demands — Joint debtor on a note. The right of set-off in courts' of law is purely statutory and cannot be enlarged. Joint debtors can set off only joint demands (Comp. L., g 5796, subd. 6) in the circuit courts, though in justice’s courts a demand of the principal debtor alone may possibly be set offi when the other debtor is only a surety. One who has signed a note after it has become operative against the maker, but in order to induce others to take it, must be held as a joint debtor.
42 Mich. 64French v. Canada Southern Railway Co. (1879)
 Stipulation disregarded as'against legal rights of one who was not a party to it. Suit was brought against joint parties, but spmmons was served on only one, who stipulated lor taking a deposition. The other afterwards appeared, and on the trial the deposition was ruled out on his objection that it was taken without his consent and without notice to him. Held that the defendant who stipulated could not bring error, on this ruling.
42 Mich. 65Coon v. Attorney General (1879)
Quo warranto — Legislation affecting judicial office. Act 76 of 1879 purported to establish the police court of Grand Rapids and repealed the act under which the police justice was acting, but continued him in office to the-end of his term under the title of “police judge.” Held that it did not confer a judicial office by legislation, but only abstained from legislating the police justice out of office. "Whether the Supreme Court would require the Attorney General to file' an' information in the nature of quo warranto against his own judgment — Q.- Quo warranto’ proceedings ought generally to be instituted in the circuit court.
42 Mich. 67Maxwell v. Bay City Bridge Co. (1879)
In taxing costs, the. Clerk of the Supreme Court allowed the following items: “ To paid to engineer for preparing draft of map in bill of exceptions......................... $12 00 “To paid for wood-cut in bill of exceptions____ 15 00 The engraving appears in the report of Maxwell v. Bay City Bridge Go., 41 Mich., 458.- The affidavit for the taxation of costs stated that the bill of. costs was correct and that the items of disbursements were “necessary to the proper…
42 Mich. 69Sheahan v. Judge of Wayne Circuit (1879)
Funds of infant litigants — General guardians. A court is bound to guard the interests of infant litigants whether protected by their guardian or not. General guardians do not represent their infant wards in foreclosure proceedings, and the solicitors of the guardians cannot bind the rights of the infants; nor can guardians ad litem, bind the infants except in strict accordance with the rules for their protection. The new security required by Chancery Rule 94 before money belonging to infant litigants can be turned over to general guardians, calis for a responsible showing, and cannot rest on loose verbal statements. Money belonging to infant litigants in foreclosure cannot be ordered paid to the solicitors of their general guardian, as they are strangers to the infants and have no claim on, nor power to represent them. A court should not give up control of a fund belonging to infant litigants without securing the rights of their guardian ad litem or his solicitor.
42 Mich. 71In re McCarthy (1879)
Proceedings to disbar- an attorney, brought by a committee appointed by the Bar Association of Grand Bap-ids. The respondent was charged with having been convicted on an information for obtaining money under false pretenses, to which information he pleaded guilty. It satisfactorily appeared to the court by the record of conviction to be true, and he was accordingly disbarred.
42 Mich. 72Attorney General v. Supervisors of Sanilac County (1879)
Affidavits to show cause — Tax valuation — Equalisation—Supervisors. It seems that affidavits in answer to an order to show cause cannot be assumed to be evasive, and if so in fact, the respondent will be bound by them, according to the interpretation evidently intended. Petitions for the reduction of the valuations of townships cannot be regarded by the supervisors in the assessment of taxes. The equalization of valuations for taxation is a political duty, and the power to equalize is exclusive in 'the supervisors.
42 Mich. 74Markham v. Gehan (1879)
Case made from Kent. Assumpsit and trover appealed from before a justice. The action was brought by Markham against Thomas J. Fitzgerald, a building contractor; -and James Gehan, William Farrell and Denis McCarthy, a building committee who had contracted with him, were brought in as garnishees. . Their disclosure showed that the contract was made with Fitzgerald and J. W. GriswiPld jointly. The garnishees were discharged with a judgment for costs in their favor.
42 Mich. 75Quackenbush v. Henry (1879)
Error to Lapeer. Replevin. Defendants bring error.
42 Mich. 81McLaughlin v. Lange (1879)
Replevin by Emil and Robert Lange, composing the firm of Lange Brothers, against McLaughlin for certain horses, trucks, harness, etc., which .defendant, who was deputy sheriff, held under an execution against their uncle, from whom plaintiffs' claimed to have bought the property. Plaintiffs recovered and defendant brings error.
42 Mich. 82Taylor v. Dansby (1879)
Consideration for a note — Discontinuance for infancy as against a joint defendant does not release surety on'appeal bond. A written agreement to pay all damages arising from a complaint for bastardy and in case of farther trouble from it, and that no farther damage should accrue against the respondent, was held a sufficient consideration for a promissory note. In an action on a note given in consideration of an agreement to secure the respondent in bastardy proceedings from damages arising from the complaint, proof that the injured woman agreed to be satisfied with the arrangement made was no more than proof of its execution, and was held admissible. Where a written agreement is shown as consideration for a note, but not referring to it or indicating what the entire dealings were, evidence of additional consideration is admissible. Where an action on a note is appealed to the circuit court, and the surety on the appeal bond is impleaded as defendant, and the 'defendants stow that one of the original promisors is an infant, the plaintiff can accept the infancy as a fact and discontinue as against him. , One who signs a note with an infant may be held as sole maker after discontinuance as against the infant. Discontinuance may be had in the circuit court in an action brought up on appeal, as well as if begun there; and as it is contemplated by the appeal bond, does not release the surety on that bond.
42 Mich. 86Iron Cliffs Co. v. Buhl (1879)
Sale — Acts of control by purchaser — Delivery—Evidence of usage. A mining company agreed to sell 2000 tons of ore to an iron company and deliver it at a certain point whence it was to be taken by rail to the consignees. The contract quantity was delivered and with more ore of the same kind was deposited In a pile at the point of delivery, but the consignees directed the railroad company to cease forwarding it for a time as they had no room for it. They paid in full for the contract quantity, however, but as they did not finally receive the full amount they sued the railroad company for the amount which it had failed to deliver. Held (1) that by these acts the iron company asserted their understanding that when the ore was delivered in the pile it was under their control, and (2) that they could not sue the mining company for the deficiency. Where ore is piled at the point of delivery in a mass larger than was contracted for, and nothing remains but to take the contract quantity from the pile, it seems that it is a sufficient delivery. Law books cannot be read to the jury to establish local usages of trade that are subject to change.
42 Mich. 90Hoyt Post v. Campau (1879)
. •Appeal from the report of commissioners on the estate of Theodore J. Campau, disallowing a claim brought * by Daniel J. Oampau. Claimant recovered judgment, and the administrators bring error.
42 Mich. 100Fildew v. Besley (1879)
Non-apportionable building contract — Acceptance of performance. One cannot recover for work clone and materials furnished under a non-apportionable contract to put up an addition to a building for a fixed sum, where the house and the addition were burned without the fault of either party before the contract was fully performed, and before any part of the work had been accepted or in any way appropriated by the owner of the main building. Acceptance of work done under a non-apportionable contract to erect an addition to a building, mupt be unequivocal, and cannot be presumed from ordinary acts done as owner of the realty.
42 Mich. 104Hendricks v. Rasson (1879)
Ejectment brought by Hendricks against Frederick Rasson, for premises upon which, as appeared from the evidence, Rasson’s father lived with him in the same house. Defendant had judgment and plaintiff brings error.
42 Mich. 105Willcheck v. Edwards (1879)
Certiorari to drain commissioner.
42 Mich. 107Gies v. Green (1879)
Bill for rehearing, and for vacating a personal decree for a deficiency on foreclosure, and execution and' levy thereon. Defendants appeal.
42 Mich. 108Ritter v. Ritter (1879)
 Release of title fraudulently obtained. A man made a deed, but did not record it or authorize it to be recorded. It was fraudulently put on record, however, and he filed a bill to have it declared void and the interest conveyed by it released. The court below refused a release, but held that he had reserved a life interest to himself which it enjoined defendant from disturbing. Held that he was entitled to a release. If he had delivered the deed, the grantee was the owner in fee simple; if not, she had no interest.
42 Mich. 110Carleton v. Jenness (1879)
 Surviving partner not liable on an unauthorized indorsement in the firm name without ratifying it. A member of a firm that has been dissolved by the death of a partner cannot bind the survivors by indorsing a note in the firm ' name, unless they ratify his act, even though the note may have been given for a debt of the firm. The fact that a man has- recognized a debt as one for which he is responsible, does not establish a right of action against him on a note purporting to bind him but given for the debt without his consent or acquiescence, though it might strengthen proof of his ratification of the note if there were any evidence to show it.
42 Mich. 112Wilson v. Coolidge (1879)
Appeal from Berrien. ’ Bill to set aside an execution. Complainant appeals.
42 Mich. 115Ferguson v. Popp (1879)
Loss of lien by evading tender — Neglect to keep tender good. A mortgagee loses his lien by evading tender of payment. Where a mortgager had made a tender of payment which was not accepted and which he had not kept good, and the mortgagee afterwards tendered a conveyance and demanded payment, it was decreed on foreclosure that the mortgager pay the principal of his debt with simple interest to the time of payment, less the period that intervened between the dates of the tender and of the mortgagee’s subsequent offer to reeonvey; and that the mortgager’s costs of both courts be deducted.
42 Mich. 117McOmber v. Chapman (1879)
Error to Berrien. Assumpsit. Defendant brings error.
42 Mich. 119Brong v. Brown (1879)
Case made from Kent. Trover. Plaintiff had judgment below.
42 Mich. 121Burrowes v. Gibson (1879)
-Appeal from Superior Court of Detroit. Bill to set aside a deed. Complainant appeals.
42 Mich. 126Senegal v. Labadie (1879)
Error to Wayne. Trespass for cutting timber. Plaintiff brings error.
42 Mich. 128Chandler v. Childs (1879)
Recoupment in actions of tort — Assumpsit on purchaser's representations. Recoupment of damages, may be had in actions of tort. Courts must see that defendants are not prejudiced by plaintiffs’ choice of one form of action rather than another. Where a vendor has been induced by the purchaser’s representations to receive in part payment a mortgage which he afterwards found to be unavailable, it was held that assumpsit would lie upon the purchaser’s representations, as well as an action of tort for fraudulent statements. '
42 Mich. 131Howard v. Bond (1879)
Writ of assistance — Foreclosure absolute. A writ of assistance is proper only where a party concluded by the proceedings refuses to give up possessien on request; and it should not be granted without proper evidence of such refusal after the right of possession is -established. A purchaser on foreclosure cannot demand possession until the commissioner’s report of sale is confirmed. A foreclosure sale cannot be made absolute so long as objections duly taken to the report of the commissioner have not been passed on.
42 Mich. 134Osburn v. Farr (1879)
 Infants sue on their own joint contracts in their own names. In a suit on a joint contract made by an infant and an adult as joint parties, and under which money has been earned, the infant’s father cannot sue with the other contractor in his own name as the. infant’s substitute. An infant’s partnership contract is not void, and in a suit under it upon a completed cause of action for the infant’s benefit, he should be a plaintiff in his own name and not through another.
42 Mich. 135McDonald v. Lewis (1879)
Error to Muskegon. Assumpsit. Defendants bring error.
42 Mich. 138People v. Smith (1879)
Error to Clinton. Trespass. The People bring error.
42 Mich. 141Semon v. People (1879)
Error to Allegan. Bastardy. Defendant brings error.
42 Mich. 142Cummins v. People (1879)
Burglary. Criminal information charging George < Linden, Michael- Moore, William Cummins and John Seipher with breaking into the dwelling house of Anne McFarlin, in the township of Hamtramck, and feloniously taking therefrom a bottle of sherry and a lot of cigars. Cummins was convicted and sentenced to imprisonment in the State Prison for seven years.
42 Mich. 144Printz v. People (1879)
Larceny. Respondent was convicted of the theft of a seal-skin saeque, which the owner testified was worth $125, and was sentenced to the State Prison for five years.
42 Mich. 145Vroman v. Thompson (1879)
 Execution sale on transcript of judgment. An execution sale made upon a transcript of a justice’s judgment is void if the transcript was made within five days after the entry . of judgment.
42 Mich. 146Palmer v. Mason (1879)
Appeal from Saginaw. Bill to quiet title as against attachment proceedings. The bill was dismissed below and complainants appeal.
42 Mich. 154Stuart v. Worden (1879)
Appeal from Newaygo. Foreclosure. Defendant Babcock appeals.
42 Mich. 162Burger v. Limbach (1879)
Error to Wayne. Assumpsit. Defendant brings error.
42 Mich. 165Curtis v. Brownell (1879)
 Mortgage set aside for insanity of mortgager. A mortgage made by a man who had been insane some time before and had periodical recurrences of insanity, and was insane at the time he gave the mortgage, though he had all along managed his own affairs with average correctness and had been treated by his neighbors as competent to do business' even while they considered him of unsound mind, was set aside as being made while non compos mentis, though not so manifestly insane as to make the conduct of the mortgagee fraudulent in making the bargain which it was meant to secure, even though he had been given sufficient warning to put him on his- guard.
42 Mich. 172Pashby v. Mandigo (1879)
Joseph. Bill in aid of execution against certain lands transferred by Archibald to his son Nicholas Mandigo. Complainant Pashby and Archibald Mandigo had been sureties on a note made by the latter’s son Robert who failed. Pashby paid the note and sued his co-surety for contribution, and having recovered against him for half the amount of the liability on the note, levied on -his land which Archibald Mandigo had previously conveyed to Nicholas.
42 Mich. 174Pratt v. Pratt (1879)
Appeal from Benzie. Foreclosure. Bill dismissed. Complainant appeals.
42 Mich. 176Burns v. Berry (1879)
Foreclosure. The bill was dismissed as to defendant Berry, and a decree granted as against the remaining defendants. Complainant appeals.
42 Mich. 181Miles v. Skinner (1879)
Foreclosure. Complainant appeals.
42 Mich. 186Lamore v. Frisbie (1879)
Appeal from Berrien. Injunction to restrain an action of ejectment. Bill dismissed. Complainant appeals.
42 Mich. 191Carpenter v. Graham (1879)
Sale — Transfer of title — Assumpsit on waiver of tort. A quantity of barrels were sold’ from a large stock stored in the warehouse of a bailee who was accustomed to deliver to purchasers upon presentation of a bill of sale. He was notified ot the sale by both parties, and at the request of the purchaser,' to whom a bill of sale had been given, he undertook to keep the barrels safely until called for. But they were not designated, nor separated from the rest, which were of the same size and quality. Held that there was sufficient delivery to pass title, and protect the barrels sold from an execution levy against the vendors, upon the general stock. A purchaser’s delay in removing merchandise from the charge of a bailee in a reasonable time after, constructive delivery, cannot subject the vendor to the risks of storage. Where mortgaged goods have been converted and sold, the mortgagee cdnnot bring assumpsit for the amount received. '
42 Mich. 195Bowe v. Bowe (1879)
Guardianship — Mortgage extorted from ward. Relief may be granted as against a mortgage extorted by a son from his parents by oppressive means and for an inadequate consideration, ■while he was practically in a position of guardianship over them and their property. A son whose parents have turned over their property to him in consideration that he will support them, is in a position of guardianship over them and is bound to take no advantage of them in dealing with them. Where a mortgage 'was cut down on appeal by the mortgager on a bill to set it aside, complainant was granted costs of both courts, and was permitted to apply them, when taxed, as payment on the mortgage.
42 Mich. 198City of Detroit v. Robinson (1879)
Error to Superior Court of Detroit. Assumpsit. Defendant brings error.
42 Mich. 203Fish v. First National Bank (1879)
Indorsement guarantees prior indorsements — Notice of non-payment. An indorser admits that previous indorsements were duly made and warrants the title and genuineness of the paper he transfers; and he is not released if it appears that a previous indorsement is invalid. One who receives negotiable paper need not look beyond the signature of the last indorser if he is satisfied that it is genuine, and ^has no notice of facts that should put him. on inquiry. An indorser denied having received notice of non-payment, but did not attach to the plea an affidavit of denial as required by Comp. L., § 603. There was proof of demand, protest and the mailing of notice, and notarial certificates were duly attached to the protested paper. Held that there was no error in charging that the notice was sufficient.
42 Mich. 206Fraser v. Jennison (1879)
Separate right to peremptory challenges — Opening to the fury— Conclusions of witness — Leading questions — Expert evidence as to testator’s sanity — Physician’s testimony — Drag-net questions —Testimony as to family history not hearsay — Trial of cases should he so managed as to avoid error. Where parties impleaded together appear by the same counsel, and after their right of peremptory challenge is exhausted, other counsel take charge of the case for part of them, the latter have no farther right of challenge. Contestants in a will case offered in their opening to read to the jury a passage from a worji on mental diseases, enumerating certain causes of insanity. Held that the court properly refused to allow it. The question in a will case whether or not the testator was an eccentric man is not objectionable as calling for a conclusion instead of a fact. The contestants of a will put the following questions: “Bid you notice during the spring any weakening of [testator’s] mind?” and “In your opinion, during the spring of 1877, had [testator’s] mind weakened?” Held that these questions were not leading. A trustee named in a will was also a subscribing witness, and testified to its due execution and the testator’s sanity. He was asked on cross-examination as to whether he had proved a claim against the estate, and an offer was made to show that the witness had himself drawn the will, that testator was very old, and that before his will was made he had been prompt to pay his debts. Held proper to exclude the question and the testimony. The witness was not so interested in the will, either as trustee or as claimant, as to affect his testimony, and the evidence could at most raise a mere suspicion that his claim was unfounded or that the testator had become mentally dependent or helpless. If the claim was valid it made no difference whether the will was sustained or not, and if the claim was unfounded it should have been disputed when presented for allowance and when its validity was the question at issue. The fact that a testator had expressed regret that he had made a particular-bequest has no bearing on his mental capacity. ■ The error of admitting a will in evidence without having called a particular subscribing witness out' of several, to prove its due execution, is cured by calling him afterwards and allowing the contestants to cross-examine him. Error will not lie on a direction to counsel not to spend time on certain issues as their opening to the jury would not warrant it, where, though counsel excepted to the ruling, they made- no suggestion at the time that anything had been omitted from the opening, and did not afterwards offer evidence to establish the excluded issues, or necessarily tending to establish them. Expert evidence should be confined within reasonable bounds; and where the contestants of a will had examined five experts to show testator’s mental condition, it was held proper to decline to allow another to be called. The rule excluding a physician’s testimony as to matters learned # while attending a patient (Comp. L., § 5943) may be waived by the patient or by those who represent his interests after his death; and it will not prevent the proponents of a will from showing the testator’s competency by the evidence of his physician. Letters showing friendly relations with a brother are not admissible many years afterward as tending to show that the writer, in not leaving any bequest to the brother’s children, with whom friendly intercourse had not been kept up after the brother’s death, had so lost his natural affection as to indicate insanity; and affectionate letters to and from other relations, equally remote, to whom, however, he had left bequests, though they may not be strictly inadmissible, may be properly excluded. In a will case in which the testator’s sanity is in issue, an omnibus question to an expert, presenting a hypothesis covering many things of which there was neither proof nor offer of proof, including conditions which necessarily indicated insanity as well as facts which might co-exist with a state of mental soundness, and going not only into the history, eccentricities and physical condition of the testator, but into the personal traits of his reía-, tions, is properly excluded as tending to make the jury suppose that each of the enumerated circumstances indicated insanity, and to leave them at discretion to decide whether the will was suitable and proper and satisfied their judgment. Incapacity, either criminal or civil, must for legal purposes be judged of by manifestations in conduct or language; symptoms of insanity which only physicians can perceive and which have no apparent effect upon one’s ability to transact business are not enough to vitiate one’s civil acts. It is intended by the Statute of Wills that every person shall be at liberty, in malting his will, to select the objects of his bounty among his relations at discretion, or to pass them all by if so disposed. A will is not necessarily to be set aside on proof that the testator suffered from a mental disorder when it was executed; it must also bo shown that it affected the provisions of the will. Derangement of the mental faculties ought not to incapacitate one from making his will if it does not make him incapable of acting rationally in the ordinary affairs of life, or manifest itself in the testamentary provisions. A will ought not to be overturned without reasons that are intelligible to the common sense of mankind. Testimony that a witness knows by repute that her father and his brother came to the State together, and that they were the only two brothers of the family that did come to the State, is not objectionable as hearsay. An examiner should avoid an objection to the form of a question by-changing its form, instead of relying upon bringing error on a ruling sustaining the objection. Parties should so manage them cases in the trial courts as fully to develop their merits in order that the verdict and judgment may be final; and in will cases this is particularly important. Where it does not appear that adverse rulings have prevented a party from making a fuE showing of the case, the appeEaté court may decline to disturb the judgment for errors in overruling questions on formal objections, when their exclusion does not appear to have done injury. It is not error to refuse requests for instructions to the jury where the court gives a connected charge that is fair and sufficiently full to present all the important questions of law with which the jury have anything to do, and is likely to guide the jury better than the instructions asked.
42 Mich. 239Hudson v. Judge of Superior Court (1879)
Writ oe Prohibition.
42 Mich. 249Dennis v. Circuit Judge (1879)
Mandamus to vacate an order directing a special administrator to pay into the circuit court money withdrawn therefrom by his predecessor under an order improvidently granted.
42 Mich. 255Stuart v. People (1879)
Error to Superior Court of Grand Rapids. Burglary. Plaintiff in error was found guilty below.
42 Mich. 262Maillet v. People (1879)
Rape — Evidence of compulsion — Disclosures—Error to be affirmatively shown in criminal cases — Unwarranted requests for instructions. In a prosecution for rape the complaining witness may show that the accused is her father and a man of great strength, and had been abusive .to his family and often beaten his wife, and that at the time of the outrage he was in liquor and she in great fear. In a prosecution for rape, a question to the complaining witness as to whether she had told the priest or any one else of the outrage, is not objectionable. Whether it would be error to allow the prosecutrix on a charge of rape to state what she had told to others about the affair when she first disclosed it — Q. Error must be affirmatively made out in criminal as well as civil eases; it cannot be based on a misapplication of the judge’s remarks that would exclude evidence that they were not intended to affect, particularly if the ambiguity is the fault of counsel in not making their offer of proof explicit. Where respondent’s requests to charge are inconsistent with the theory of the prosecution and the evidence which supports it, and are based on a different hypothesis unsupported by evidence, they are properly refused. In a rape case an instruction that the time at which the victim made complaint of the outrage is a relevant circumstance “as tending ■to prove the truth of the charge, for the reason that it is natural for the woman ravished to make complaint as soon as possible,” is not open to the objection that it makes the time of complaint a circumstance to corroborate the accusation but not to weigh against it.
42 Mich. 267People v. Knapp (1879)
Adultery — Cross-examination of partieeps criminis and of defendant — Presence of officer in jury-room. Where the partieeps criminis■ in adultery testified to the offense, and on cross-examination denied having had a certain obscene conversation with a man named, or having criminal intercourse with another specified person, it was held that though the questions might be asked her, other witnesses could not be called to prove her denial false. A prosecution for adultery is not like a case of seduction, in which the previous chastity of the woman is necessarily in issue. In a prosecution for adultery the defendant was asked on cross-examination whether his wife had not made a complaint against the other party for the alleged offense, and he replied that he had heard so. Held that this answer should not have been received in evidence. Comp. L., § 7693, which forbids any prosecution for adultery except on complaint of the husband or wife, contemplates that the wife may proceed^without her husband’s consent. A verdict in a criminal case may be set aside and a new trial granted if the officer who attended the jury remained in the jury-room during their deliberations. It is against public policy to allow the deliberations of a petit jury to be reported.
42 Mich. 272Reed v. Baker (1879)
Appeal from the Superior Court of Detroit. Proceedings in the nature of a judgment creditor’s bill. Defendant appeals.
42 Mich. 275Fraser v. Estate of Fraser (1879)
Error to Wayne. Appeal from an allowance by commmissioners on an estate. The claimant recovered on appeal, and the special administrators assign error.
42 Mich. 283Folkerts v. Power (1879)
Injunction against the city treasurer of Alpena to restrain bim from collecting certain school taxes averred to have been improperly assessed. Defendant appeals.
42 Mich. 289Farmers' Mutual Fire Insurance v. Gargett (1879)
Error to Gratiot. Assumpsit. Defendant brings error.
42 Mich. 296Larkin v. Mitchell & Rowland Lumber Co. (1879)
 Action for merchandise forwarded in excess of order and destroyed by accident. Where dealings between parties consist of separate and distinct transactions, they cannot be referred to as establishing a usage that will govern another independent transaction between them, especially if the latter was carried on under express terms in writing. Error will not lie on rulings not excepted to, or if excepted to, on which error was not assigned. Where a motion to strike out testimony is so broad as to cover lawful evidence also, it is properly denied. It is not material error to strike out evidence if the court afterwards * correctly directs a verdict. A lumber dealer gave an order for a lot of shingles and a larger quantity was forwarded to him than the amount called for. He received and held the excess subject to the consignor’s order; advanced the freight charges and notified the consignor, and immediately afterwards they were destroyed by fire without his fault. Held that assumpsit would not lie for their value. Where several car-loads of shingles of the same quality were forwarded to a dealer in excess of his order, and he took a quantity out of one of the cars to fill the order, it is immaterial from what car he took the necessary quantity. Where an order for merchandise was largely exceeded, and the consignee received the excess to be sold or held subject to the consignor’s order, and advanced the freight in good faith and for the consignor’s benefit, he could recover the amount so advanced in assumpsit against the consignor as for money paid to his use.
42 Mich. 304Mickle v. Maxfield (1879)
Bill of review — Practice. The enrollment of chancery proceedings is not invalidated by omitting bills of costs not theretofore taxed; such bills can be after-wards included among the enrolled papers. Enforcement of a decree can be demanded only by those to whom it gives affirmative relief; on appeal they are the parties provided for by the appeal bond, and on a bill of-review they cannot object that the decree was not performed. A mere subsequent encumbrancer cannot, on appeal from a decree on a bill of review, raise a question as to the security to be given on obtaining leave to file the bill, nor object that it was not given earlier. Where a foreclosure decree provides for the sale of land, there is no personal liability to be enforced against defendant until after it is sold and a deficiency reported. Where a mortgage or other security is set forth and referred to in a bill in chancery, and made a ground of relief, it becomes a necessary part of the record, and if not denied in the answer it needs no formal proof. Chancery Rule 56. A foreclosure decree cannot be rendered without producing the securities or giving adequate reasons why they cannot be produced. A bul of review lies where a foreclosure decree has been made contrary to the terms of the mortgage, and an application for the correction of the error, made within a reasonable time, has been refused. Subsequent encumbrancers take subject to' any explicit provisions of a mortgage as to the order in which the property shall be sold, and that without reference to the considerations on which such preferences were agreed on. Where a bill of review is filed there is no practice which authorizes rights which accrued after the the decree, to be introduced into the controversy except by some affirmative pleading in the shape of an original or supplemental bill bringing the new parties into court. When a defendant in chancery is once lawfully impleaded, he cannot, by disposing of his interests, step out of the position of defendant, but he continues, usually for the purposes of the suit, to represent his original interests. Where a defendant in foreclosure retains part of the property in suit, and is responsible on his covenants for other portions, he is interested in having the mortgage foreclosed according to its terms, and if it is not, he is a proper complainant in a bill to review the decree. One who files a bill of review does not thereby lose any rights that he would have had on a rehearing; the only distinction is that a rehearing precedes and a bill of review follows enrollment. Neither remedy can be had without leave. Costs are properly imposed against a subsequent encumbrancer who defends against a bill of review filed by a principal defendant, and maintains the supplemental litigation in opposition to the terms of a mortgage binding his lands.
42 Mich. 314Lyle v. Palmer (1879)
Fixtures — Machinery. Machinery specially adapted for use in connection with the realty, and put up for use and actually used on it and owned in common with the realty, is a fixture, however the parties may regard it. So held where the machinery of a woolen factory, propelled by a water-wheel with shaft and belting, had been included as personal property in a mortgage of the land on which it was placed. Where the deed of a homestead mentions the house separately, it still remains part of the freehold. A mortgager of chattels cannot contest the mortgage for the failure to file it, nor can his trustee. Purchasers on a foreclosure of a chattel mortgage have the rights of mortgagees in possession, and cannot be sued in trover by any one who is precluded from attacking the mortgage or who shows no right to contest the possession.
42 Mich. 318Kellogg v. Secord (1879)
Trover by Secord against Kellogg & Baker for the conversion of about 200 bushels of wheat which had been levied upon while in his possession by virtue of an execution against Harley Woodward, and sold to defendants subject to a chattel mortgage in favor of plaintiff. The mortgage was filed in a town where the parties did not live.
42 Mich. 320Hiscock v. Norton (1879)
Appeal from Jackson. Bill to set aside a deed or to enforce an equitable lien on the land granted. Defendant Chilson appeals.
42 Mich. 327Burke v. Wilber (1879)
Secondary evidence — Statute of frauds — Declaration. The objection that documentary rights have been shown by secondary evidence, cannot be reserved for the appellate court if no objection was made to its admission until the point was raised on a request to charge after the evidence was closed. The Statute of Frauds does not require a vendee’s agreement to pay the purchase money for land, to be written to enable him to contract to sell the land again. It is therefore of no consequence, so far as such a contract is concerned, whether the vendee could have enforced his rights in the land as against his vendor, or not; and the vendee’s grantee is not concerned in dealings between the vendee and his vendor as to what the former shall receive out of any money to be paid for the land. A declaration cannot be objected to in the appellate court for insufficiency if it was not demurred to, and if it set forth the facts intelligibly and the proofs made out a sufficient case and furnished ample material for amending it to satisfy the technical rules of pleading.
42 Mich. 329Moynahan v. Hanaford (1879)
Error to the Superior Court of Detroit. Assumpsit. Defendant Hanaford brings error.
42 Mich. 332Doyle v. Mizner (1879)
Estoppel by recognition of corporate character — Acknowledgment . of articles of association — Certified copies in evidence — Chattel mortgage by grantees of property conditionally transferred and not held in good faith. The rule that one who recognizes an association as a corporation by dealing with it as such, is estopped from disputing its incorporation, originates in equitable principles and rests on the ground that the act of recognition creates relations and encourages conduct which there may be difficulty in undoing. But it does not apply where no new rights have intervened and the recognition has itself been brought about by fraudulent dealing carried on for the purpose of entrapping a party into the act from which the recognition is inferred. All private corporations must be organized under general laws and can be valid only when strictly conforming to all the conditions imposed on their completion. Articles of association of a private corporation are invalid if not acknowledged, and are not' entitled to be filed in the Secretary of State’s office. The certificate of the Secretary of State to a legal conclusion is of no validity as evidence. His duty in certifying to copies of instruments on file in his office is purely ministerial, and he must certify to a copy of the entire document. A mere certificate' that a paper required to be acknowledged, is accompanied by an acknowledgment in the usual form, is of no effect. A bill of sale is invalid unless delivered; and where the same persons are grantors and represent the grantees, there must be distinct evidence that the bill was meant to be operative, and the signature is not enough to show this. Under such a transfer no new rights can arise as between the parties, on which to found an estoppel. A resolution passed by two directors of a corporation in the absence of a third not sufficiently notified, will not authorize the execution of a mortgage whereby the latter’s property is taken from his possession. Where the only authority for mortgaging corporate property was a resolution passed by a majority of the directors, providing for a general mortgage, and that actually given was not general but was given to secure a particular debt, it could not be' sustained in the hands of the original holder, and without any extension of time or other circumstance making out a case of a mortgage in good faith entitled to protection. D joined in articles of association with M and G, and gave them a bill of sale of certain property, which was not to take effect until the issue of stock by the new corporation. The legal preliminaries to incorporation were not completed, but M and G, who were a majority of the directors, I) being the other, mortgaged the property in his absence, and K, the holder of the mortgage, took possession of it. D brought trover against them. Held (1) that there was no incorporation; (2) that as between the parties to the transfer'there was no estoppel by dealing in a corporate character with one another, as they were bound to know that there was no legal incorporation, and if they did not, a mistake of law on that point would exonerate one party as well as the other; (3) that in testifying as to how he came to take the mortgage, ,K could not repeat the statements made to him by his co-dcfendants, as to their previous dealings with D, as they were hearsay and not needed to describe the res gestea; (4) that the admission of testimony of a sale under the mortgage, if erroneous, was cured by an instruction that the measure of damages, if any, would be the value of what was taken with interest from the time of taking it, less the actual amount of the mortgage.
42 Mich. 342Clark v. Field (1880)
Error to Wayne. Trespass. Defendant brings error.
42 Mich. 346Bennett v. Beam (1880)
Breach of promise — Damages for seduction — Tender of performance after beginning of suit. A declaration for breach, of promise averred a promise to marry plaintiff (1) on request; (2) within a reasonable time; and (3) generally. Held that evidence was admissible to prove a promise to marry when certain buggies were finished, at all events where this promise was only a part of what had passed 'between the parties, on -which the suit was based. Where a promise is made to be performed when certain work.is completed, but no time is stated for its completion, the law implies a reasonable time. In a breach of promise suit brought by a woman, evidence of the effect of the alleged refusal to marry, upon her mind and feelings is admissible as bearing on the question of damages. So is evidence of defendant’s financial standing, as it is presumed that in contracting marriage property considerations are not ignored. But in an action for the breach of an ordinary contract, such evidence is inadmissible, as it cannot affect damages. In an action for breach of promise brought by a woman, the fact that she was seduced by defendant under a promise of marriage should have great weight in fixing damages. Courts will rarely interfere with any damages which a jury may give on account of seduction. In a suit brought by a woman for breach of promise, evidence of interviews between her father and the defendant in her absence is properly excluded; but where on cross-examination of the plaintiff evidence of an interview between the plaintiff and her counsel was called out, it was held proper to refuse to strike out testimony referring to an bffor of settlement made by ¿the defendant’s brother. In an action by a woman for breach of promise, it is inadmissible for the mitigation of damages to cross-examine the plaintiff as to whether she is then willing to marry the defendant, or to examine the defendant as to whether ho had not notified plaintiff’s counsel after the action was begun, that he was then ready to perform his agreement to marry.
42 Mich. 353Sperry v. Estate of Moore (1880)
Error to Wayne. Appeal from the disallowance of a claim by commissioners on claims. The claim was also rejected in the court below, and claimant brings error.
42 Mich. 362Arno v. Wayne Circuit Judge (1880)
Attorney’s authority — Notice of retainer — Act 113 of 1877. Act 113 of 1877 provides that suits for labor debts may be brought against a corporation and individual stockholders jointly. Such a suit being brought, the corporation counsel gave the plaintiff’s attorneys verbal notice of retainer, but certain attorneys retained by the stockholders, without giving any notice of retainer at all, pleaded in abatement in the name of the corporation before the corporation counsel had pleaded. The latter afterward pleaded the general issue. Plaintiff’s attorneys paid no attention to the plea of abatement, and were defaulted. Mandamus was granted to vacate the default and strike the plea in abatement from the flies. Act 113 of '1877 is severely criticised for limiting to two years the period within which suit may be brought against a stockholder of a manufacturing corporation for a labor debt. It seems that where counsel appear in the name of a party by whom they have not been retained, and put in a plea different from one that is afterward entered by counsel duly authorized, the opposite party is entitled to relief against their acts.
42 Mich. 377Russell v. Phelps (1880)
Error to tbe Superior Court of Detroit. Trespass on the case. Defendant brings error.
42 Mich. 389Morrison v. Berry (1880)
Error to St. Joseph. Trover. Defendants bring error.
42 Mich. 399Dewey v. Central Car & Manufacturing Co. (1880)
Error to Superior Court of Detroit. Assumpsit. Plaintiff brings error.
42 Mich. 404Eberts v. Eberts (1880)
. Appeal from Wayne. Bill to obtain a judicial construction of a will. The case is stated in the dissenting opinion of Mr. Justice Graves. Complainants appeal.
42 Mich. 412Rynearson v. Fredenburg (1880)
Assumpsit on a bond. Declaration was filed under the statute, setting forth the conditions of the bond and assigning a breach according to the facts. Plaintiff' recovered judgment, and the defendant brings error.
42 Mich. 417Burhans v. Mitchell (1880)
Foreclosure. The bill sets forth that the mortgage was given to one Baker by the defendant Mitchell to secure four notes payable at intervals; that Baker assigned the last two payments and part of the second to Mary L. Kelley, who assigned the same amount to the complainant; that Baker assigned the remainder of the second payment to defendant Shaw, who assigned it to defendant Crawford and turned over to him the note therefor and the mortgage; that complainant has been…
42 Mich. 422People ex rel. Ayres v. Board of State Auditors (1880)
Mandamus to require the Board of State Auditors toj take action under Act 168 of 1879. This motion was. .first submitted October 28, 1879, and on November 30 the Supreme Court ordered that W. S. George & Co., State printers, should be included a® respondents and required to show cause why the writ should not issue.
42 Mich. 436Attorney General v. Hanchett (1880)
Quo Warranto. Motion for entry of judgment of ouster.
42 Mich. 439Cook v. Wiles (1880)
Proceedings to obtain possession of land — Description—Omission to find facts — Interest. In proceedings to obtain possession of land -bought on mortgage foreclosure, it is sufficient to foEow the description in the mortgage, especially if the mortgager himself retains possession. The omission to find the facts and law before giving judgment is not an error of which the party who did not request it can complain. Where a note is made payable several years after date, “with annual interest,” the interest faUs due every year during the period for which the note is to run.
42 Mich. 441Ferguson v. Millikin (1880)
Estoppel — Notice of set-off and recoupment. A plaintiff declaring upon a written obligation which recited a settlement of accounts, gave evidence of its assignment to him, but did not show any consideration therefor. Held'that he could not rely on equities that were not available to his assignor, and that the defendant was not estopped by the recital from contesting the settlement. Estoppels rest on the protection of equities. A joint and several note may be set off against a claim by one of the makers. A notice of set-off in terms as broad as the common money counts in assumpsit, will, if no bill of particulars is called for, cover anything that could be proved as a demand under such counts; such as a joint and several note signed by the plaintiff. A defendant filed two pleas of the general issue, and attached to one a notice of set-off and to the other a notice of recoupment. Meld that the latter was not in the nature of a bill of particulars and did not restrict the notice of set-off.
42 Mich. 444Strohauer v. Voltz (1880)
Error to Tuscola. Assumpsit. Plaintiff brings error.
42 Mich. 449Stirling v. Heintzman (1880)
Partnership — Amendment of pleading by inserting names of partners. A partnership must contain more than one person. Comp. L., § 5307, permits a partnership suit to be instituted in the firm name ii the names of the partners are not known, and allows of amendment at any time before the pleadings are closed, by inserting the names of the partners. Held that this can only apply in cases of actual partnership; and where a writ of replevin was issued in a partnership name, and the amendment showed that there was only one plaintiff, the action failed.
42 Mich. 451Neib v. Hinderer (1880)
Assumpsit by Hinderer and Ghristner, who had constituted the firm of C. Hinderer & Co., for the value of' a bakery, fixtures and stock of groceries which they had sold to Neib. Judgment was rendered for plaintiffs on the report of a referee, and defendant brings error.
42 Mich. 454Widdson v. Gifford (1880)
Certiorari to justice of the peace and commissioner of highways.
42 Mich. 457McCallum v. Township of Bethany (1880)
Supervisor’s certificate to assessment roll — Action for unpaid taxes. Comp. L., § 991, requires a supervisor, on completing an assessment roll, to certify in effect that he ‘has set down all the real estate liable to be taxed according to his best information,’ and that ‘the roll contains a true statement 0/[the aggregate valuation of the taxable personal estate.’ A supervisor omitted the italicised words and certified that he had set down the real estate ‘according to his best [judgment and] information.’ Held that these variations from the authorized form did not invalidate the certificate. Comp. L., § 1014, allows an action to be brought for personal taxes whenever they are returned unpaid by the town treasurer. Held that the treasurer’s warrant for their collection must be exhausted before suit.
42 Mich. 459City of Detroit v. Houghton (1880)
Official bond — Failure of joint action. A joint action on an official bond fails if it appears that any one of the defendants is not liable. A judgment for defendants in a joint action' does not bar another proceeding against a portion of them on the same cause of action.
42 Mich. 461Woodward v. Chester (1880)
Appeal from Allegan. Specific performance. Bill dismissed. Complainant-appeals.
42 Mich. 461Right Worthy Grand Encampment of the Independent Order of Odd Fellows v. First National Bank (1880)
Error to St. Joseph. Assumpsit. Defendant brings error.
42 Mich. 463Steinhauser v. Wayne Circuit Judge (1880)
 Costs on appeal from, a justice’s court. Costs on appeal from a justice can be awarded only by the judge who tried the appeal.
42 Mich. 464Ortmann v. Merchants' Bank (1880)
Motion for judgment for costs against surety.
42 Mich. 464Scrafford v. Supervisors for Gladwin (1880)
Motion for costs.
42 Mich. 465Vanneter v. Crossman (1880)
Eepleyin by Crossman and Whipple for a yoke of oxen belonging to one Watkins and held by Vanneter as constable under writs of attachment against Watkins, taken out first by Crossman and Whipple and afterwards by Mead & Fleming. It appears that the first attachment suit had been discontinued, and it is not shown that Yanneter was notified of that fact when the writ of replevin was taken out against him.
42 Mich. 469Jenness v. Circuit Judge (1880)
Irregularity in legal proceedings — Revivor. ■ An irregularity is such 'a defect in legal proceedings as may be waived; a nullity is one that cannot. The omission of plaintiff’s administrators to revive a suit before taking out an execution after his death, is only an irregularity and may be cured by an order nunc pro tunc.
42 Mich. 473Worth v. McConnell (1880)
Error to Genesee. Assumpsit. Defendants bring error.
42 Mich. 477Matson v. Melchor (1880)
Chancery practice — Bill in aid, of execution — Formal objections— Deposition not affected by deponent’s subsequent death — Admissions made in one suit used in another — Gift from husband to wife in fraud of creditors — Neglect to assert homestead exemption in defense. Eormal objections are not allowed on the hearing of a cause where they could easily have been made before. A deposition filed with a commissioner to take testimony, and recognized in the cause by a stipulation, will not be excluded on the hearing if there was no motion to suppress it, even if the stipulation was not in proper shape. .The death of a party to a suit before it is brought up for hearing does not affect the validity of a deposition taken during his lifetime, nor exclude evidence of his own admissions. Where defendants in chancery had answered in another suit attacking the same transaction, their answer, if meant to be an admission, is admissible as such, though never filed in the suit for which it was drawn. The fraudulent effect of a gift from a man to his wife by which the property is placed beyond the reach of creditors, is not changed by the fact that the wife, while she knew her husband was indebted, did not know that he could not give her his property under the circumstances. Ono who claims as a bona fide purchaser, but who has only given , his notes, must also show that he had made payment thereon before notice of the defect in his grantor’s, title. Where a bill was filed in aid of an execution that was levied on a lot which had been conveyed in fraud of creditors and was oeeu- • pied as a homestead, and the answer did not aver its value to be low enough to bring it within the constitutional exemption, the levy was held legal, and action should have been taken under it to ascertain the homestead right or secure such interest as might remain over in case the value of the property exceeded the amount of the levy. Where a homestead right is not asserted in defense to a bill in aid of execution, and the defendant has died and his children are of full age, there is no obstacle to a sale under the levy.
42 Mich. 482Parks v. Allen (1880)
Bill to compel the release of a mortgage and to obtain th,e statutory penalty for refusing to discharge it on tender of the amount due thereon. Complainant Parks testified that he saw the mortgagee Allen driving past the place where he was at work, and that he called to him to stop and went out to where he was. and asked him if he had the mortgage with him.
42 Mich. 484Witherspoon v. Clegg (1880)
Error to Wayne. Trover. Plaintiff brings error.
42 Mich. 487Zook v. Blough (1880)
Joseph. Attachment. Petition to dissolve the attachment was granted by a circuit court commissioner, whose proceedings were quashed by the court below, and petitioner brings error.
42 Mich. 489Hebert v. Bulte (1880)
Statutory foreclosure — Evidence of regularity. The sheriff’s deed on statutory foreclosure is no evidence that the foreclosure was legal; and the affidavits required by Comp. L., § 6926, are merely to perpetuate evidence of the sale. Foreclosure by advertisement is not a judicial proceeding, but an act of a party, and cannot take place unless the mortgage contains a power of sale.
42 Mich. 492Dupont v. Starring (1880)
Boundaries — Special findings — Objection to special question — Verdict. A boundary line acquiesced in lor fifteen years ought not to be disturbed on a new survey. In a case of a contested boundary between two city lots, the jury were asked to find specially how long the old line fence had stood and been regarded as the boundary line. Held that as the establishment of a line by adverse claim and acquiescence was a subject of dispute, it was to be presumed that the jury supposed the questions contemplated such a state of things, and not merely a case in which no question as to the correctness of the line had ever arisen. Where special questions to the jury do not meet the whole case, the defect must be pointed out when they are submitted, and if it is not, the special findings are not open to minute criticism. A verdict should not bo sustained where, on the whole special finding, it is reasonably certain that it ought not to be.
42 Mich. 495Douglass v. Circuit Judge (1880)
Execution to be levied in default of' bond to stay proceedings— Gapias ad satisfaciendum — Answer to order to show cause. A judgment creditor may proceed to collect Ms judgment notwithstanding the allowance of a writ of error, if Ms opponent has filed no bond to stay the proceedings; and if he does not exhaust tMs remedy he cannot take out a capias ad satisfaeiendumf after three months from the return day of the execution. An answer to an order to show cause is disregarded if only drafted by the attorneys in the case without being submitted to the respondent and approved by him. But the case may be treated as on demurrer to the relator’s showing.
42 Mich. 497McGuffie v. Carter (1880)
 Complainant in statutory proceedings to recover possession of lands must show right to possession. Where proceedings to recover possession of land are brought against a tenant holding over, the latter may show that the complainant had parted with his title before bringing the proceedings, and was no longer entitled to possession. Proceedings to obtain possession of land under Comp. L., ch. 211, cannot be entertained if the complainant does not show himself lawfully entitled to possession.
42 Mich. 501Brown v. Judge of Probate (1880)
Error to Kent. Assumpsit on bond. Defendant Brown brings error.
42 Mich. 506Turner v. Village of Stanton (1880)
Damages for talcing• land for public street — Waiver—Revocation of license to use land. Everything necessary to support the proceedings of a village board in laying out a street across the land of private' persons ought to appear of record; such as any waiver of damages. 'Where a petitioner for a village street across Ms land verbally stated to the authorities that he claimed no damages, it was merely a . license that would be binding only when they proceeded to take the land, and might be previously revoked by /a written notice. One who petitions for the laying out of a street which woiild cross i Ms land is not thereby precluded from claiming compensation therefor.
42 Mich. 509Corrie v. Corrie (1880)
Certiorari to Wayne Circuit Court.
42 Mich. 511Thorp v. Preston (1880)
Error to the Superior Court of Detroit. Garnishment. The garnishees bring error.
42 Mich. 513Burkle v. Circuit Judge (1880)
Ejectment — Special findings — Pay for improvements. Where special findings in ejectment are inapplicable to the ease, they are nugatory and a general judgment should be entered, whether the findings are stricken from the record or allowed to remain. The statutes allowing for improvements on a recovery in ejectment (Comp. L., § 6252: Act 180 of 1875) can apply only to cases where the plaintiff establishes a title in fee simple.
42 Mich. 516Ryan v. Akeley (1880)
Replevin bond — Evidence to reduce the judgment in the replevin suit. Where property attached was replevied by a third party, and the, defendant in replevin took judgment by default, it was held that as against the plaintiff the judgment showed that the defendant in attachment had a leviable interest that would bind him and his sureties in an action on the replevin bond. Comp. L., § 6766 providing that in an action on the- replevin bond1 the defendants may show that the obligee had only a special property, only applies where the obligee has taken judgment for a return of the property, and sues on the bond to recover its. value; and it cannot apply where the value is not sued for. The plaintiff in replevin suffered judgment by default, and the de*fendant waived return and had his damages assessed. Held that in suing on the replevin bond, the defense could not introduce evidence in reduction of the judgment in replevin, as allowed by Comp. L., § 6766, in cases where judgment had been taken for a return.
42 Mich. 518Sullivan v. Dunham (1880)
 Abandonment of claim wnder land contract. The Statute, of Frauds in providing that a surrender of any interest _ in land must be in writing does not prevent one who has given back a land-contract held by him, in order that the land might-be conveyed to another party, from recovering the consideration for which he gave it up, as by bringing suit he ratifies the conveyance and precludes himself from claiming any interest in the! lands.
42 Mich. 521Grand Lodge of the Independent Order of Odd Fellows v. Morrison (1880)
Error to Ingham. •Assumpsit. Plaintiffs bring error.
42 Mich. 523Day v. Toledo, Canada Southern & Detroit Railway Co. (1880)
Contributory negligence — Injury to brakeman — Liability to employee for negligence of fellow employees. An experienced brakeman was ordered by the conductor to attach a ear loaded with lumber which projected forward and compelled him to stoop in making the coupling. In doing so, he delayed a little and his fingers were caught in the coupling-link and hurt. Held that he could not maintain an action against the railway company, as he fully understood the difficulty to be guarded against, and the conductor was not shown to have been in fault in any way. A brakeman cannot hold the company which employs him responsi- > ble for the failure of fellow-servants to take peculiar precautions.
42 Mich. 526Abels v. Board of Supervisors (1880)
Mandamus.- John C. Shields for the writ.
42 Mich. 528In re Rice (1880)
Habeas corpus.
42 Mich. 532Eddy v. Manshaun (1880)
Pleading injustices’ courts — Entry ofdefenseon docket — Amendments. A plea in a justice’s court is sufficient if it fully apprises the plaintiff as to what the defense is. The requirement that in cases tried before a justice, the plea shall be the general issue in all cases, with notice of any special defense, is mere matter of form and will not invalidate a special defense pleaded alone. A justice should enter an oral defense on his docket, unless it is imperfect in substance, but his failure to do so will not deprive the defendant of his defense. If it is imperfect the defendant should be allowed to amend.
42 Mich. 533Bishop v. Freeman (1880)
 Justices’ jurisdiction in actions on bond. An action of covenant does not lie in Michigan upon a bond that does not contain covenants, when it is given to secure anything but the 'payment of money, or when the amount secured exceeds $150. The statutes of Michigan, like the common law, treat the penalty of a bond given to secure any sum exceeding $150 as the debt | to be sued for in an action of debt on the bond. They require the plaintiff to assign breaches, and allow a recovery of the debt, but permit execution for'only the damages and costs, the judgment standing as security for the satisfaction of farther breaches, for which damages are recoverable on scire facias, the breaches being alleged according to the facts. Comp. L., §§ 6155-61. No covenants that do not appear on the face of the bond can be implied as against the surety. Suit was brought in justice’s court against the surety on a bond drawn in the sum of $2000. The plaintiff declared on the eommoa counts in an action of debt on the bond, assigned breaches and claimed $300 damages. The bond contained no covenants. Held that the action was neither assumpsit nor covenant, but debt on the bond, in which, under the Justices’ Act of Michigan, a justice has no jurisdiction if the sum sued for exceeds $150; that the proceedings were therefore void, and an execution title based on the judgment was illegal and would not justify an entry on the land.
42 Mich. 536Lockwood v. Thunder Bay River Boom Co. (1880)
Action for use and occupation — Waiver of tort and suit in assumpsit — Contract relation — Estoppel—Agency of corporate officers. An action for use and occupation will not lie except where there is an obligation to pay rent by virtue of a contract relation as of landlord and tenant. An adverse relation cannot be turned into a contract relation, either express or implied, unless some duty exists on the part' of the party occupying it, upon which the law permits the fiction of a contract so as to simplify the redress. A contract for use and occupation cannot be made out unless the person charged as tenant has either accepted possession from the landlord, or done some other act in plain recognition of the relationship or which equitably estops him from denying it. A corporation cannot be held to have contracted unless by such agents or officers as have express or implied authority. Individual directors of a corporation cannot bind it. Assumpsit does not lie at common law to recover the value of chat- ■ tels obtained by means of a trespass. Act 165 of 1875 permitting one to waive a trespass on lands and bring assumpsit, only applies to eases where damages have been sustained, and the declaration must show that the damages accrued from the trespass. The action cannot rest upon any theory of a contract, as for use and occupation.
42 Mich. 541Johnson v. Stilson (1880)
Replevin. The writ was issued late at night, and as the justice who issued it objected to the surety offered, the petitioner for the writ promised to produce another next day. The latter appeared and signed the bond, and the justice, understanding him to say that he was worth $200 subject to execution, indorsed his certificate of qualification.
42 Mich. 542Brigham v. Fawcett (1880)
Appeal from Superior Court of Detroit. Bill to set aside a deed. Complainants appeal.
42 Mich. 545Macdonald v. Board of Supervisors (1880)
 Auditing justice’s accounts. The Justices’ Act contemplates that a justice, in rendering his aeeoimt to- the board of supervisors, shall specify the services in detail, so that the board may determine whether the amounts charged corresponded with the statutory fees. The board is not concluded by the account, but may require proof, and examine his docket and files and the roturas made by him, and where they do so, and rojoct claims on the ground that the services were not performed, or that the charges made exceeded those allowed by statute, their action cannot bo disturbed on a roviow of their finding upon tho facts.
42 Mich. 547Dool v. Village of Cassopolis (1880)
Taxation — Notice of Review of Assessment roll. Aa ordinance of Cassopolis imposing a tax on saloon keepers required the assessor to give notice of a review and correction of the assessment roll, which must take place before the collection of the tax. The special assessment roll for the saloon tax was distinct from the general assessment roll of the village, and notice of review was given only for the latter. Held that the want of notice invalidated the saloon tax.'
42 Mich. 549Evening News Ass'n v. Tryon (1880)
Error to Superior Court of Detroit. Trespass on the case for libel. Defendant brings error.
42 Mich. 550Bagley v. Pridgeon (1880)
Jurisdiction of municipal courts in transitory actions should appear in the declaration — Costs on reversal of judgment by default. Under Act 97 of 1879 the jurisdiction of the Superior Court of Detroit is confined in transitory actions “to cases where one of the”' parties lives in Detroit.” Held that a judgment by default fori non-appearance in a suit begun by declaration cannot be sustained where the declaration does not show the residence of either party. Costs are awarded only on error where a judgment by default for defendant’s non-appearance, is reversed.
42 Mich. 553McLaughlin v. Wilks (1880)
Error to Superior Court of Detroit. Assumpsit. Defendant brings error.
42 Mich. 554Webster v. Anderson (1880)
Error to Mecosta. Trover. Defendant brings error.
42 Mich. 556Forrest v. O'Donnell (1880)
Error to Saginaw. Action on bond. Plaintiff brings error.
42 Mich. 561Watson v. Toms (1880)
Attachment — Notice by publication — Amendment of return. Comp. L., § 6414 provides that within thirty days after the return of a writ of attachment, notice by advertisement may be given to absent defendants. Held that the date of the return as indorsed upon the writ and signed by the sheriff may properly be taken as the date from which to compute the time for advertising, though the writ is not actually filed until after notice is given. Where action has to be taken by an attorney on the return of a writ of attachment, it is permissible for the sheriff, after indorsing the return of a writ not personally served, to leave the writ and return with the attorney instead of filing it with the clerk. A sheriff’s return never becomes part of the record until actually on file with the clerk, and he may amend it without leave at any time before filing.
42 Mich. 563Jeffery v. Hursh (1880)
Ejectment — Grantee’s right of action under a deed absolute. A deed absolute gives the grantee the right of possession and will sustain ejectment, even, though it was meant as a mortgage, if nothing appears to show that intent.
42 Mich. 565Engle v. Campbell (1880)
Error to Huron. Assumpsit. Plaintiffs bring error.
42 Mich. 567Mink v. Morrison (1880)
Error to Huron. Assumpsit. Plaintiff brings error.
42 Mich. 569Weimer v. Porter (1880)
Error to Clinton. Ejectment. Plaintiffs bring error.
42 Mich. 571Griffin v. Fulton Iron & Engine Works (1880)
Assumpsit on common and special counts for the price and value of certain iron columns furnished by the Iron & Engine Works to Catharine Griffin for the construction of the Griffin Market. Defendant pleaded the general issue with notice of recoupment for non-performance of the contract, and sought to introduce in evidence certain plans and specifications for the building, claiming that they had been used by one Wayne in making estimates on the work to be furnished.
42 Mich. 573Just v. Township of Wise (1880)
Mandamus to compel payment of township orders — Adoption of signature — Affixing a mark. Mandamus lies, not assumpsit, to compel a township board to pay a valid order given by the highway commissioners on the township treasurer. No question can arise in the Supreme Court upon a point of law not passed upon in the finding of the court below. A township clerk has no authority by virtue of his office to sign the names of highway commissioners to an order on a township treasurer. An order on a township treasurer to pay for labor is incomplete without a certificate that the labor is performed, and the actual signature of the highway commissioners to the certificate, where that is indorsed upon the order, is sufficient to adopt as signatures their names attached to the order, though attached thereto by some one else. A mark attached to a signature is evidence of the intention to adopt it; but this may also be done by any other act expressed clearly. Where one who cannot write, directs another person to sign for him and the latter signs in his presence, the signature is binding whether the former does or does not attach his mark.
42 Mich. 577Fletcher v. Moore (1880)
Escrow — Conditional sale of land. Where the only allegation of error is that the facts do not support the judgment, the Supreme Court mil not entertain the objection that there is no regular finding. A doecl was deposited in escrow witli a written agreement by the grantor that the sale might be abandoned ii the title to be conveyed should not be found by the depositary to be a full title in fee simple and free from all encumbrances. Held that this paper referred to the title as it stood when the arrangement ’in escrow was made, and did not bind the grantee to accept any future rectification.
42 Mich. 580Cressinger v. Dessenburg (1880)
Delivery of Mortgage — Witnesses. A mortgage left with a third party to be delivered when a prior mortgage had been discharged and other conditions performed, was assigned by the mortgagee named in it, to the depositary, before they had been fulfilled. It was. afterward assigned to another party before it fell due, and the assignee sought to foreclose it. Meld that there had been no delivery. There is no injustice in declining -to give controlling force to the testimony of a witness as against his positive assertions and acts to the contrary, whereby he claims to have deceived1 another.
42 Mich. 584Cooper v. City of Detroit (1880)
Appeal from Wayne. Injunction. Dismissed. Complainants appeal.
42 Mich. 591Gunzberg v. Kent Circuit Judge (1880)
42 Mich. 592Ruberts v. Hathaway (1880)
Justice’s courts — Absence of justice at time for opening court. Where, on the adjourned day of a cause, a justice was absent half an hour over time in the performance of official duties not pertaining to his judicial office, and on his return, upon defendant’s refusal to appear, adjourned the cause in his absence and gave him notice of the adjournment, and on the nest adjourned day gave judgment against him in his absence, it was held that the judgment must be reversed.
42 Mich. 593Vliet v. Westenhaver (1880)
Justice’s Court — Jurisdiction—Notice to defendant. A justice acquires jurisdiction when proper service is made or defendant appears. But the fact of actual notice without any appearance will not give it, and is no reason for refusing or dismissing a writ of certiorari to bring up the proceedings.
42 Mich. 594Steele v. Thompson (1880)
Error to Oakland. Trespass on the case. Defendant brings error.
42 Mich. 597King v. Hubbell (1880)
Replevin by Hubbell for goods seized by King under a writ of attachment. Hubbell claimed them under a chattel mortgage given him by his son two days before the attachment issued, to secure him for indorsements and for the purchase price of a quantity of railroad stock which he had shortly before sold his son at par. The goods constituted the latter’s stock in trade. Plaintiff recovered and defendant brings error.
42 Mich. 605Sager v. Tupper (1880)
Foreclosure. ' Complainant states that the mortgage was given by defendants Nelson and Lorena J. Tupper to secure two promissory notes made by Nelson and Edwin H. Tupper, one for $1100 and the other for $400.
42 Mich. 609Twogood v. Hoyt (1880)
Error to Calhoun. Ejectment. Plaintiff brings error.
42 Mich. 614McKay v. Kilburn (1880)
Estoppel by judgment — Creditor’s right to intervene for fraud. A judgment in replevin against an officer holding goods-under an attachment, does not estop the same or prevent any other officer from levying execution on the same goods in a different suit brought by another creditor of the party against whom the attachment was issued, where such creditor had had no interest in the replevin suit nor right to intervene therein. Nor would ■ it be conclusive of the title as against a purchaser at the execution sale. A sheriff in mating levy and sale merely exercises a power in the interest of a party whose writ is delivered to him for execution; and a purchaser-at the execution sale does not stand in the sheriff’s right, but is the privy of the party under whose execution the sale was made. Fraud in a sale by a debtor is a matter as to which only attaching creditors have any legal interest in the trial of it in a replevin suit by the purchaser against an officer holding under the attachment, even though the latter had collusively suffered judgment: and no other creditors could have their rights conclusively determined by the result of such a suit.
42 Mich. 619Blanchard v. Powers (1880)
Tax-titles — Impeachment of supervisor’s certificate of valuation. The validity of a tax-title, especially if it be of long standing, cannot be impeached in an action of ejectment against the holder by parol evidence to show the falsity of the supervisor’s certificate of valuation attached to the assessment roll. The absolute illegality of a tax may be shown in proceedings to enforce it, and it cannot be cured by proof that if the valuation had been correct, the tax would have been legal. A supervisor’s official certificate of valuation is legal evidence in Michigan in collateral proceedings involving the validity of the tax, and cannot be contradicted by parol evidence. It is the policy of the law in Michigan that after the holder of a tax-title has recorded it and held possession for many years, the holder of the original title cannot .question the tax-title in collateral proceedings as in an action of ejectment.
42 Mich. 625Gott v. Judge of Superior Court (1880)
Election between counts of declaration — New trial. A party who has been compelled to elect between the common and special counts of his declaration, is at liberty, on a new trial, to proceed upon the other counts. A new trial is a rehearing of the cause before another jury, but with as little prejudice to either party as if it had never been heard before. A ruling requiring a party to elect between the counts of his declaration, and the practice thereon, would not bind the judge upon a new trial of the ease if brought to trial in the same shape as before.
42 Mich. 628Benjamin v. Manistee River Improvement Co. (1880)
River improvement companies — Tolls for use of navigable streams— “ Channel” — Free navigation. The navigable waters of the United States, though forever free, are nevertheless subject to State control and regulation and may.be-improved by the States or bridged or dammed under their legislation. “Eree navigation” is not necessarily the unobstructed navigation ot a stream in its natural condition. The policy of Michigan is against the improvement of highways for trade and commerce by taxation of the people. ■ Tolls for the navigation of an improved stream are not taxes, duties- or imposts on the use of the stream, but are tolls for the enjoyment of improvements by which it has acquired a new value and. increased navigability. Comp. L., eh. 85, in authorizing corporations formed for improving the navigation of rivers, to charge tolls for the use of the improved stream, is not in violation of the provisions of the Ordinance' of 1787 or of the State Constitution, securing free navigation. In proceedings by quo warranto against a corporation authorized by law to deepen the channel of a river, it pleaded that it had' removed obstructions by cutting channels through jams, and by confining the water at various points. Held on demurrer that it could not be said as matter of law that this was not an exercise of the power given to deepen the channel. The channel of a stream is the bed over which its waters run, or the passage way between banks through which they flow. Pixing the amount of tolls is not a judicial act, but is only prescribing in advance a law for the government of those who may be brought within its provisions; and a hearing for the purpose of fixing tolls is not a judicial hearing of which all parties that .may be interested are entitled to receive notice. . D Comp. L., § 2730, requires a river improvement corporation to file with the Board of Control an annual affidavit of a director as to the probable amount of traffic through the improved portions- of the river during the year, and that he had made due inquiry from lumbermen and otherwise; but it does not give the affidavit any peculiar force as evidence and leaves the board to choose its own methods of getting information, and the Board can .avail itself of the personal observation of its members if it sees fit to do so. Administrative questions are not in their nature judicial and are not subject to review. 'The Board of Control of St. Mary’s Palls Ship Canal has exclusive and discretionary authority under Comp. L., eh. 85, to determine the plan of river improvements, and on evidence satisfactory to itself decide when tolls may be properly levied, and grade and change them thereafter.