Volume 44 — Michigan Reports

Trespass on the case by Stork against Michels for damages resulting from the wrongful levy of an attachment on machinery of the plaintiff, whereby he was prevented from carrying on his business.

<p>Recognition of parol trust in lands — Rights of creditors.</p> <p>Although by statute a parol trust in lands is void, the trustee may recognize it, and other persons, whose equities are not affected thereby, cannot interfere.</p> <p>Lands held in parol trust, by a father for his daughter, were exchanged for others, which he conveyed to his brother, on like trust. Creditors of the father sought to reach it. Held, that the equities of the daughter were equal to those of the creditors, and she would be protected as against their claims.</p> <p>The admission of the trust by the brother, in an answer in chancery, is a sufficient declaration of the trust in writing to answer the requirements of the statute of frauds.</p>

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

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

<p>Contract right to land — Notice.</p> <p>Where parties claim, conflicting descriptions of land under a common source of title, and one liad a contract right and had entered into possession before the other purchased, but received his deed after-wards, he can maintain a bill to enjoin an action of ejectment brought by the other claimant.</p> <p>Immediate possession and constant occupancy by one who holds under a land contract, operate as full notice of his rights under the contract, so far, at least, as concerns enclosed premises.</p> <p>Eights conferred by a land contract cannot, as against one in full possession under it, be affected by errors of description whereby deeds from the same grantor to subsequent purchasers are made to cover portions of the same land.</p> <p>Where a deed is given in pursuance of a land contract, it is presumed to secure and perpetuate all rights conferred by the contract, and an intermediate conflicting deed given by the same grantor has no priority.</p>

<p> Foreclosure for joint and several liability. </p> <p>A bill to foreclose a mortgage given to secure a joint and several ■ note is defective for want of parties if filed against only one of the makers of the note, though the mortgage was given by him only. This is especially so where the mortgage has been assigned and if the defense to the note could only have been enforced by a joint cross-action for damages.</p> <p>Where a debt is made payable after several years, but the interest is payable annually, a bill to foreclose the mortgage which secures it may be properly filed after the expiration of the .year, if interest is in arrears.</p> <p>A promissory note beginning "I promise” but signed by several persons is a joint and several note, and in law may be sued against one or d more of the makers.</p>

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

<p>Appeal from Kent.</p> <p>Bill of interpleader. Complainant appeals.</p>

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

<p>Discretionary costs — Judgment of justice.</p> <p>The statute permitting a judge to give or withhold costs in his discretion on the partial reversal of a ju 'gment, does not apply where the full amount due had been tendered before suit. In such-cases costs accruing after the tender must go to the defendant under Comp. L.</p> <p>§§ 0180-1.</p> <p>It cannot be assumed on error that the jury disregarded the proofs and acted on something else.</p> <p>Comp L. § 5479, forbidding reversal of a justice’s judgment for an improper allowance of fees, does not cover a case expressly governed by a statute regulating costs generally, and where the question is not as to particular allowances which the justice has failed to consider.</p>

<p>Error to Montcalm.</p> <p>Action on bond. Defendants bring error.</p>

<p>Error to Bay.</p> <p>Garnishment. The garnishees bring error.</p>

<p>Sheriff’s bond — Surety’s liability when informal.</p> <p>The sheriff elect entered into a bond, with sureties, which was intended for his official bond as sheriff, and was in all respects correct except that the county was named as obligee therein when the statute required the bond to be given to the people. The board of supervisors approved of the bond as sufficient. Held, that as the statute empowered and required the supervisors to examine and approve the bond and the sureties therein, this approval was final and the bond a valid official bond.</p> <p>As the obligee named in such a bond has no active duty to perform, and no voice in taking or approving of the bond, or in bringing suit upon it, and there is no importance in the people being named as obligee rather than the county, it being important only that some party shall be named as promisee in whose name suits may be brought, the provision for naming the people may be treated as directory merely, and a bond sufficient in substance, which parties have given for the statutory purpose, which has had the statutory approval, and on which the public have reliefd, will be held sufficient to give the intended security.</p>

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

<p>Executors — •Settlement of accounts.</p> <p>The probate court may require executors whose accounts are under investigation, to submit to oral examination under oath by counsel for heirs and legatees of the estate.</p>

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

<p>Ejectment — Adverse possession — Claim by tax title.</p> <p>In ejectment where the plaintiff claims title by adverse possession, it is proper to permit him to show that the land was generally called and spoken of as his in the neighborhood, as this tends to prove the notoriety of his claim of title.</p> <p>When title is claimed by an adverse possession for the statutory period, it should appear that the possession had been actual, continued, visible, notorious, distinct and hostile. And where the circuit judge was requested so to instruct the jury, and refused, but instructed them only that the possession must be actual, continued and visible, held to be error.</p> <p>But a claim under a tax title is necessarily hostile to the owner of the original title.</p>

<p>Appeal from Berrien.</p> <p>Bill for accounting. Complainant appeals.</p>

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

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

<p>License of flowage — Arbitration and award.</p> <p>A written agreement permitting the establishment of a dam, granting a right of flowage, providing for a perpetual use and for the settlement of damages, and containing no clause of forfeiture on default, is not a revocable license, but an absolute sale on time for credit.</p> <p>The president and secretary of a corporation are proper officers to agree for it upon an arbitration.</p> <p>Damages for a right of flowage are a proper subject of statutory arbitration, and the award is binding if it agrees with the express terms of the submission.</p>

<p> Suit on appeal bond. </p> <p>A levy on real estate in case of a return of nulla bona upon an execution from justice’s court is not prerequisite to a suit upon the appeal bond.</p> <p>A justice’s neglect to make return within ten days after an appeal is perfected does not preclude a remedy on the appeal bond; the default in prosecuting the appeal is that of the appellant, and not of the appellee..</p>

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

<p> Married woman’s liability on her husband’s note. </p> <p>A married woman is not liable on a promissory note which she signed with her husband, if no consideration passed to her from the party to whom the note was given. A consideration as between herself and her husband is not enough.</p>

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

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

<p>Error to Gladwin.</p> <p>Information in the nature of quo warranto. Relator brings error in Supreme Court.</p>

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

<p>Arlitraiion and award — Review of arna/rd.</p> <p>Error does not lie on a judgment upon an award rendered by arbitrators under a statutory submission, where the submission is in due form, and the award is one that could have been lawfully made.</p> <p>The statutory remedy against an award is by motion to vacate made at the next term, and the court may vacate it for cause, or order a rehearing, or modify and correct the award in certain cases. Comp. L., §§ 6896, 6899, 6900.</p>

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

<p> Entry of rub to pbad. </p> <p>The rule to plead should be entered before service of a copy of the declaration, but when both acts are done on the same day and within a short time, and the defendant is not misled by the omission to enter the rule until after service, he has no right to have the declaration stricken from the flies.</p>

<p>Execution — Amendment of date.</p> <p>An execution on the judgment in a cause appealed from before a justice was antedated, and a motion to require the sheriff to return it for correction was denied. Mandamus to compel the circuit judge to grant the motion was denied, as in any proceeding against the sureties on the appeal bond the facts could be shown.</p>

<p>Testator’s intent — Gonsii’uetion of devise.</p> <p>A testator’s intent is to be determined from the whole will which is to be given effect as far as it may lawfully be done.</p> <p>A man devised to one of his daughters the s. f of the s. ■§■ of the s. £ of a specified quarter section, and farther described it as containing 15 acres and as being 15 rods wide by 160 long. There was a similar devise to another daughter, and another was to have a strip 12-j. rods wide and containing 12J- acres. There were three remaining daughters who were to receive the residue share and share alilce. The actual quantity in each of the first devises, according to the first clause in the descriptions, would be 80 acres, but if they were construed as giving 30 acres each, there would have been no residue for the last three devises. Held, that they covered only 15 acres.</p> <p>A clause in a will described certain property as “being the same land on which the said Sidney Tewksbury now lives.” It seems that such a description does not necessarily cover the entire tract within the enclosure.</p>

<p>Appeal from St. Joseph.</p> <p>Bill to determine rights under a will. Complainant appeals.</p>

<p> Parol agreement for transfer of land. </p> <p>An unwritten agreement to pay for work by giving a conveyance of land is void under the statute of frauds, and cannot be considered in measuring damages, or for other purposes.</p>

<p>Chattel mortgage — Filing—Assignment by mortgagor.</p> <p>A chattel mortgage not filed is void as against the creditors of the mortgagor by the express terms of the statute, when the mortgagor is left in possession as before giving it. Whether it is not also void as against one to whom the mortgagor has assigned for the benefit of his creditors is left .undecided by tuis case.</p> <p>A mortgagor of goods who had been left in possession, and whose mortgage was not filed, made a general assignment for the benefit of his creditors. The assignee took possession and proceeded to sell the goods in execution of his trust. The mortgagee filed a bill in equity to foreclose. Held, that as the statute declared his mortgage void as against the very parties for whom the assignee was trustee, he had no , standing whatever in equity, and his bill was dismissed. If under any harsh rule of the common law he may have an advantage, he will be left to seek it at law.</p> <p>Wrongful conduct can never be the foundation of an equitable right.</p>

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

<p>Rescinded sale — Evidence of profits — Unprejudieial error.</p> <p>S. sold D. as much timber as D. should take away before a certain date, but before that time sold the land without reservation to M. and agreed to settle with D. who presented a claim for the amount he had paid and for getting out the timber. S. did not pay however,' and D. sued him. Held (1), that the action was not based on the contract of sale, but the later transactions, to which the contract and the deed to M. were mere matters of inducement, and it was for the jury to determine whether D.’s claim was well founded; (2), that it was not material whether or not he had notice of the sale; (8), that as D. recalled the price he had paid and claimed payment for his outlays, he could not show what profits he might have made.</p> <p>Where evidence improperly admitted is evidently not considered by the jury, the error does not require a reversal of judgment.</p>

<p>Mortgage — Record-entry—Mistake—Notice.</p> <p>Under tlie statutes of Michigan a mortgage is considered as recorded when it is filed for record, and the register is required to make an * entry in what is called an entry hook, of the date of reception, tlie names of the mortgagor and mortgagee and the township in which the lands lie.</p> <p>The entry in the entry hook, until the mortgage is copied in full into the record, constitutes the constructive notice to purchasers, and refers them to the mortgage on file for full particulars.</p> <p>In copying a mortgage into the record, the register omitted the name of tlie mortgagee. Held, that this error did not defeat the mortgage as to subsequent purchasers, hut that as the entry hook would supply the name of the mortgagee, that hook and the record hook together gave full information and constituted notice to all parties concerned.</p>

<p>Service — Special appecui'ance — Surely for costs — Gertiorari—.Return.</p> <p>Judgment for a joint conversion cannot be entered against a defendant who had not been served with process.</p> <p>A special appearance for the sole purpose of making an objection is not a submission to jurisdiction.</p> <p>Comp. L., § 6188, providing that final adjournment for costs may be rendered against the surety for costs as well as against his principal, applies to a case where a justice’s judgment for plaintiff is reversed in the circuit on cen'tiora/ri.</p> <p>The return to a writ of certiorari to a justice may properly show whether security for costs was filed in actions by non-residents.</p> <p>Oeriiorari to a justice is in the nature of an appeal so far as to allow the circuit judge to include the surety in the judgment for costs against his principal.</p>

<p>Appeal from Kent.</p> <p>Injunction to restrain action of trespass. Bill dismissed. Complainant appeals.</p>

<p>Liability on insurance agents bond — Premiums uncollected when bond was given — Costs.</p> <p>The bond of an insurance agent who had assumed an indebtedness of a former agent for uncollected premiums, does not cover the debt, but if the agent collects any part of the premiums it covers the amount.</p> <p>An insurance agent’s bond covers moneys collected by him within his district on policies issued independently of him; also, unearned premiums returned by the company on cancelled policies and remitted to the agent to be paid back to the assured.</p> <p>A firm were appointed agents for an insurance company, one of them having previously been the agent, alone. They gave a bond for the faithful performance of their duties, which was conditioned, among other things, for the payment to the company of all moneys, etc. and other property belonging to it. They also gave their firm note for an amount covering a large amount of uncollected premiums due from the former agent. In an action on the bond to recover the amount due on the note, it was held that the firm could not charge their surety by assuming the amount due the company, but that if they collected any part of that amount the bond would cover it.</p> <p>Costs are denied to either party where they would be about the same on both sides and both parties have sued out writs of error and neither has prevailed.</p>

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

<p>Error to Bay.</p> <p>Assumpsit for breach of contract. Plaintiff brings error.</p>

<p> Removal of causes for local prejudice. </p> <p>A showing of local prejudice was made for the removal of a cause from the State to the Federal court, but .it was not presented to the court and action invoked upon it' for more than a year. Held that the paper had become inofficious and would not avail for the purpose.</p> <p>The showing of cause for the transfer of a cause to the Federal court, and the motion upon it, must be substantially contemporaneous.</p>

<p> Construction of devise. </p> <p>A man devised certain real estate to two nephews, to be sold when they became of age, and the proceeds to be equally divided between them, but he also provided that his wife was to have control of the property until they became of age. Held,, that she was to have meanwhile the exclusive and beneficial right of enjoyment.</p> <p>Where a decree construing a will was found to be incorrect, and valid objections to the jurisdiction were made, the Supreme Court on appeal reversed the decree and dismissed the bill with costs of both courts to defendants.</p>

<p>Chattel mortgage — Replevin.</p> <p>B. sold some horses and toolc back a mortgage which he assigned toL., who seized the horses under it and re-assigned to B., who afterwards joined in a note with him for an individual debt, and to' secure it gave another mortgage on the same horses. Afterwards on paying L.’s note when it was past due, B. cut his own name off and assigned the note to P. in order to keep it alive against L., and P.,without B.’s knowledge, assigned it to 0., but paid B. the balance due from L. B. then demanded the horses from L. under the original mortgage, and the officer seizing them took them from0.,who brought trover as for their conversion. Held that on receiving the amount due from L., B. had a right to suppose the transaction with him ended, and that he had a right to foreclose the original mortgage; and that 0., on purchasing the mutilated and past due note without making inquiry of B., could not treat him as estopped to deny the second mortgage as an existing lien, and had no claim on the property.</p> <p>Replevin is the only remedy for getting specific chattels.</p>

Mandamus. The relator recovered judgment in justice’s court against respondent for $248.66. On appeal it was reduced to $104, and costs were given to defendant, whereupon relator moved to vacate the later judgment, as to costs, and on denial of the motion asked for a mandamus to vacate it and enter judgment for relator for his damages and costs.

<p>Horse tn'dde — Breach of warranty — Form of the action.</p> <p>A party who has been induced to exchange a horse for another by means of a false warranty of the horse received, may sue in tort for the deception, and set out in his declaration the false warranty as the means whereby he was injured.</p> <p>The fact that he sets out the warranty in his declaration, and avers its breach, does not make his declaration one in assumpsit, when the essentials of a declaration in case appear.</p>

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

Trespass on the case for damages. Plaintiff brings error. Failure to turn out seasonably to avoid striking a vehicle left standing by the roadside is oprima facie evidence of negligence : Burdick v. Worrall 4 Barb. 596 ; negligence is not a question of law, but is a question of fact for the jury : Chicago & Alt. R. R. v. Pennell 21 Alb. L. J. 214, 1880 ; Southworth v. Old Colony R. R. 105 Mass. 342; Eilert v. Green Bay & Minn. R. Co. 48 Wis. 606.

Mandamus to compel respondent to vacate his order refusing to compel a justice to make return to an appeal taken by relator.

<p> Waiver of defeats in practice by appearance. </p> <p>An appearance for the purpose of objecting to irregularities does n„„ waive them, but if it is for some other purpose, as for obtaining a continuance, it is a waiver, and no objection can afterwards be taken to prior defects even though the motion for which the appearance was made was denied.</p>

<p>Corporate deeds — Bight of action under, execution purchase — Bemonal of timber.</p> <p>Act 89 of 1875, in making valid the conveyances of corporations made in good faith though not according to law, does not make them presumptive evidence of the rightful character of the sale. A deed in proper form and a sale in good faith for value must be clearly proven.</p> <p>Execution purchasers of real estate can sue as if they were absolute owners for any injury done the property (Comp. L. §§ 4657-8) as for timber wrongfully severed from the freehold.</p> <p>Where the same person owns a parcel of land, in part by original title and in part by purchase under an execution, and sues for the removal of timber, he is not bound to show from which portion the timber was taken.</p>

<p>Labor debts — Bill of particulars.</p> <p>A declaration against a stockholder upon a labor claim against the corporation must show the nature of the work and when it was done, to establish the defendant’s liability.</p> <p>A bill of particulars that has been properly demanded is not waived by pleading or noticing the case for trial.</p> <p>Where a plaintiff refuses to comply with a proper demand for a bill of particulars, an objection to his evidence is properly sustained.</p>

<p>Contributory negligenoo — Bparics from locomotke.</p> <p>One who invites another to bring upon his premises for use a dangerous implement, knowing it to be such, will take upon himself the consequences which naturally follow.</p> <p>The owners of a warehouse owned a railroad track running on their own premises near it, and employed a railroad company to send an engine to draw cars over it for their accommodation. The engine threw off sparks badly, and this they observed and complained of, but nevertheless continued to make use of it for a long time. At last the warehouse was set on Are and burned by sparks emitted by it. Held, that the owner had no redress against the railroad company for the burning.</p> <p>It is immaterial that the railroad company, on repeated applications made that it should repair the engine, had promised to do so “sometime,” the use continuing thereafter with the knowledge of the plaintiffs, and on their own application.</p>

<p>Order of pleadings — Demurrer and plea to the merits — Suits against counties.</p> <p>A demurrer and a plea to the general issue are inconsistent, as the first admits what the last denies.</p> <p>A plea to the merits excludes the right to demur and must be withdrawn if the defendant wishes to demur to the same counts.</p> <p>There cannot be issues of fact and of law on the record at the same time.</p> <p>Demurrer should be taken before going to issue on the facts.</p> <p>A plea to the merits filed after demurrer waives, supersedes or overrules it.</p> <p>A bill of particulars is not part of the declaration; though it may have the effect of a pleading in so far as it restricts the proof; its purpose is to secure such information as will enable the parties to make intelligent preparation for trial.</p> <p>Pleadings are not amended by service of a bill of particulars, nor is the issue changed by amending the bill; and a plea or demurrer to it would be anomalous.</p> <p>A declaration on the common counts is not made demurrable by the bill of particulars.</p> <p>A county may be sued by a declaration on the common counts.</p>

<p>Jmtiee's judgment when defendant is in custody — Motion for farther return.</p> <p>Where a justice’s judgment is rendered within the time that would ordinarily be proper, it cannot on appeal be assumed without proof that he has exceeded his jurisdiction by delaying judgment while the defendant was in custody; and if he in fact did so, an order to compel a farther return should be applied for to show it.</p> <p>A justice’s judgment rendered within four days was held sufficiently regular to sustain an appeal where the parties appeared at the hearing by attorney only, and no objection to an adjournment was shown to have been made, and there was nothing to show that defendant was in custody, and that judgment ought therefore to have been rendered at once.</p>

Assumpsit for goods sold and delivered. A suit was brought before a justice and judgment given for defendant for costs, the only defense being that the account was not due. Plaintiffs appealed, but, after the appeal was filed, discontinued their suit and. paid the defendants’ costs, and brought a new suit in the circuit to which defendants pleaded the justice’s judgment in bar.

<p>Divorce for adultery — Testimony of children.</p> <p>In a suit for divorce for alleged adultery, it is improper to call children of the parties of a tender age, to testify to facts tending to show a want of chastity in the defendant.</p> <p>To make such children witnesses is censurable, mot only as it touches them in their natural affections, and tends to demoralize them, but also because their evidence, from their immaturity and liability to misconceive the facts and be tampered with, is unreliable.</p> <p>A divorce refused, where the principal evidence against the defendant was that of two children of the parties, the eldest of whom was but twelve years of age.</p>

<p>Ejectment — Question for the jury.</p> <p>A case of ejectment cannot be taken from the jury where the fact of possession is in question; and where, if there was possession, it was explainable as a tenancy that had not been terminated by notice; or where the defendant denies ever having set up any claim; or where the testimony is such that there is a question as to the extent and shape of the land in dispute.</p>

<p>Order of proof — Map—Evidence ct$ to boundary — Right to bring trespass.</p> <p>The order of introducing proof is not subject to review on error unless the discretion, exercised by the trial judge in controlling it, is plainly-abused.</p> <p>It is not necessarily error for a trial court to permit questions to be asked before facts thereby assumed are in evidence.</p> <p>A map can only be used in evidence in connection with the testimony of a witness to enable the jury to clearly Understand the facts stated.</p> <p>It is not necessary in an action of trespass to produce a map to enable a witness to point out the locality of the offense.</p> <p>Testimony as to boundaries need not be that of a surveyor or expert; the want óf accurate knowledge in the witness would only affect the weight of his testimony.</p> <p>One in possession, under claim and color of title, can maintain an action for cutting timber and removing it from the land.</p> <p>Plaintiff in trespass for cutting and removing timber claimed to have constructive possession under certain probate proceedings; and defendant asked a charge that to entitle him to recover he must show title. Meld, that a charge that "plaintiff’s title, or color of title and posses sion and occupation were sufficient to entitle him to maintain the action ” did not take from the jury the question whether the title was valid or not.</p>

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

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

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

<p>Partnership — Lien of partner as against prior mortgage.</p> <p>E seems that an agreement to carry on business and receive half the profits, does not make one a partner.</p> <p>A partner has a lien on the firm property as against a chattel mortgage given before he joined the firm.</p> <p>Evidence that an arrangement for carrying on business for a share of the profits was entered into under an advertisement for a partner, tends to show a partnership.</p>

<p>Practice by motion — Affidavits—Discharge of garnishee.</p> <p>Affidavits relating to a motion but not regarded by the court in deciding it, are not part of the record and will not he regarded on error from the order made.</p> <p>A garnishee may properly be discharged with his lawful costs if there is undue delay in bringing the principal defendant, and if the maintenance of the proceeding against the garnishee appears to be an abuse of process.</p>

<p> Discharge of joint debtor by acceptance of individual obligation. </p> <p>Merchandise was ordered by the firm of S. & G. and-was sent with drafts for acceptance by,the purchasers. Meanwhile the firm dissolved and G., who continued in business, stated the fact and asked for new drafts. The vendor replied that he wanted the acceptances of both and asked an immediate return of the drafts, as he needed them. G. sent his own acceptance instead, and falsely stated that S. had gone east, but that if the drafts were not satisfactory he would obtain an indorser. The vendor replied that he needed the paper at once and retained it. S. knew of this correspondence and kept control of the merchandise until it was cl >sed. Held, that as the paper of the only debtor supposed to be within reach was forced upon the vendor and no offer was made to return the merchandise and there was no apparent means of enforcing any such acceptance as the contract called for, there was no implication from the correspondence of a discharge of the other debtor, and that if there was, it was made nugatory by the fraud of the purchasers.</p>

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

Bill to enforce a lien on ore, and to enjoin defendant from mingling other ores with that on which the lien was placed, and from selling it. Dismissed on demurrer. Com- ' plainants appeal.

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

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

<p>Appeal from Oakland.</p> <p>Petition for proceedings to ascertain damages for taking land. Respondents Barnes appeal.</p>

<p>Appeal from Wayne.</p> <p>Proceedings under tbe Boat and Yessel Law. Both parties appeal.</p>

<p>Case made from Mecosta.</p> <p>Ejectment. Plaintiff had judgment below.</p>

<p> Criminal conversation—Married parties cannot disprove intercourse. </p> <p>The right to an action for damages for criminal conversation with plaintiff’s wife is not barred by the fact that the act was done by violence, and that a criminal action will lie.</p> <p>In an action for damages for criminal conversation the testimony of the husband and wife is inadmissible to disprove intercourse between themselves for the purpose of raising a presumption against the legitimacy of the wife’s child.</p> <p>A witness may be competent to testify to some facts, and nevertheless be disqualified from testifying in the same case to other facts equally within his knowledge and admissible in evidence.</p> <p>Act 125 of 1861 does not abrogate the common law principle that the testimony of a wife is inadmissible to disprove intercourse with her husband for the purpose of imputing illegitimacy to her children.</p> <p>Legitimacy is presumed, and where there has been opportunity for intercourse between husband and wife within such a period that a child born of the wife may be legitimate, there must be strong evidence to overcome the presumption and disprove the fact of their intercourse.</p>

<p>Appeal from Clinton.</p> <p>Bill of discovery. Defendants appeal.</p>

<p>Bights of assignees of contracts — Partnership—Constructive parties to contract — Becoupment of claims under contract — Log-vunning.</p> <p>Assignees of a contract take it subject to all tbe rights and equities existing between the original parties.</p> <p>A joint and equal interest in an enterprise does not make the holder a partner.</p> <p>Two firms orally agreed to buy and lumber certain lands, one to furnish cash and the other labor. The former, without the latter’s knowledge, took the land contract in their own name, while the latter acted under their oral agreement in the belief that they were partners to the contract. Held, that on a settlement of mutual claims they should be treated as if they were such parties, and that their rights as such would be enforceable in equity.</p> <p>Parties jointly interested with others in the purchase and lumbering of lands, sold to the others their joint interest before the undertaking was completed, and the latter agreed'to pay them certain sums at fixed times, provided these sums did not exceed the investment made by the vendors in the first purchase, the amount of which was unknown at the time of the sale. Held, in an action by the vendors against the purchasers, that the latter were entitled to retain what they had paid beyond their own proportion, and also what the vendors would have been liable for in the joint dealings of the two with third parties, and the purchasers continued liable for after the dissolution of their relations.</p> <p>There can be no presumption that a party will hesitate in the prompt performance of a legal duty.</p> <p>The cost of running the logs of outsiders which have become mingled with a drive cannot be charged against the owners of the logs constituting the original drive; the drivers must look to the owners of the intermingled logs to satisfy their claim therefor.</p>

<p> Liability of sureties on insurance agenVs bond. </p> <p>An insurance agent’s bond was made to cover all liabilities and delinquencies of tbe agent under his existing or any future appointment, and whether as sole agent or a joint agent with others, and notwithstanding changes in the tenor of the agreement or agreements under which he should act. Held, that the sureties were not bound by this for the acts of a cashier appointed by the company to assist the agent, but would be liable for such moneys as came under the control of the agent or of subordinates for whose selection he himself was answerable.</p>

<p>Liquor torn lam — contingent fund — “general election.”</p> <p>The Constitution (Art. xiv. § 14) requires every tax-law to distinctly state the tax and the object to which it should be applied, and declares that it shall not be sufficient to refer to any other law to fix such tax or object. Held that Act 268 of 1879 to “provide for the taxation of the business of manufacturing and selling spirituous and intoxicating, malt, brewed, or fermented liquors ” and to repeal Act 228 of 1875 as amended by Act 197 of 1877, in directing the tax to be placed to the credit of the contingent fund of the township, city or village from which it is collected, and paid over to the proper local officer to be used for the purposes of that fund, is sufficiently specific.</p> <p>The requirement that constitutional amendments must be submitted at the “next general election” after they were proposed, meant the biennial November election for State officers, until 1876 when the requirement was changed to permit submission at both Spring and Rail elections.</p> <p>The Legislature can make its own definitions for statutory purposes, but cannot thereby change a constitutional definition.</p>

<p> Mandamus to account for. liquor taxes. </p> <p>Mandamus lies to compel a county treasurer to pay over to .tlie proper local officers the amount of liquor taxes to which, they are entitled hy the law.</p>

<p>Certificate of purchase of State swamp lands — Taxation.</p> <p>The interest acquired under a certificate of purchase of State swamp lands is part of the purchaser’s individual property, and is subject to the State’s taxing power.</p> <p>Wo property is beyond the reach of the taxing power of the State unless designedly put beyond it by an unequivocal act of the sovereign power.</p> <p>The mere omission to exercise the taxing power in particular instances does not establish an exemption therefrom, but is a mere favor which may be recalled at any time without violating the public faith.</p> <p>The tax laws of Michigan contemplate that the interest held by a purchaser of primary school or swamp lands shall be assessed as personalty, but that the assessment is to be separate from the general valuation of'his personal property and must be made in the township where the land-lies, irrespective of the owner’s residence, and that if the tax cannot be collected by the customary process, his interest in the land shall be forfeited to the State.</p> <p>A contract made by the State cannot be altered by the State except with the consent of the other party; but the State as a sovereign may subject the interest acquired thereby to the taxing and police power, but only as it might so subject to these powers the' interest in any contract between individuals.</p> <p>The State has power to provide methods for collecting its revenues, and so long as they are general and impartial the courts will not be disposed to limit the exercise of the power merely because they seem harsh, unreasonable and arbitrary. • j</p> <p>A purchaser of State swamp lands bought when the conditions entitling him to a deed were that he should pay one-fourth down, and the rest with interest, at any time thereafter. A subsequent statute added the condition to such sales that the taxes should also be paid. The purchaser afterward assigned his certificates of purchase, and the assignee, after paying the rest of the purchase price and the interest, demanded from the Commissioner of the Land Office a certificate entitling him to his deed. The commissioner refused because the taxes had not been paid. Mandamus was granted to compel him- to issue the certificate", but it.was also held, that the State did not release any tax lien on the land by giving a deed, and that this would not govern a case where the certificate of purchase had been issued after the passage of the statute.</p>

<p>Construction of statutes — “Legal holidays” — Liquor tarn-law.</p> <p>Acts relating to the same subject and in pari materia are to be construed • together, and, as the title of an act must express its purpose, the act may be construed in the light of its title if they are not incompatible.</p> <p>Christmas is a “ legal holiday ” within the meaning of Act 267 of 1879 which directs saloons to be closed on legal holidays, Sundays and election days.</p> <p>Payment of a liquor tax for the coming year does not exempt the dealer from the operation of a subsequent law passed during the year forbidding the sale of liquor on specified days.</p> <p>The enactment of a statute taxing the liquor traffic does not prevent the State, in the exercise of its sovereign powers of taxation and police, from passing farther laws affecting the traffic.</p> <p>The sovereign powers of taxation and police may constitutionally be combined in the same statute.</p> <p>The wisdom or policy of a statute is not a question for the courts so long as it is valid.</p>

<p>Error to Superior Court of Grand Rapids.</p> <p>Information for robbery.</p>

Exceptions from Huron. Ealse pretenses. Information against Hugh Oline and Erwin W. Ellis, otherwise known as James II.

<p>Pocket-picking — Prisoner’s conversation in evidence — Bes gestee — Absent witness — Becommendation to mercy — Verdict.</p> <p>Picking a pocket or appropriating a dropped pocket-book needs no description in an information for larceny different from that employed in other cases of stealing.</p> <p>The admission of evidence of a conversation between a policeman and a prisoner is not prejudicial on the ground that the latter was influenced, if he made no confession.</p> <p>On the trial of a youth for the larceny of a pocket-book the fact that an officer had seen the prisoner’s father search him immediately after the theft and take from him what seemed to be a gold piece and put it into his own pocket, was a part of the res gestee; and the prosecution was not bound to call the father as a witness, as it was not claimed that he knew anything more about the transaction than the finding, and as he was actively aiding the defense, his position in regard to the facts was not such as to make him a necessary witness for the prosecution to protect defendant against a false accusation.</p> <p>The efforts made to secure an absent witness, or the reason why his deposition was not obtained, should be shown to warrant reproducing his testimony on a former trial.</p> <p>In a prosecution for stealing a dropped pocket-book at a saloon, the exclusion of testimony as to what the complaining witness had done, at another saloon, in dropping his pocket-book and charging theft, was not improper: such inquiries would be allowable on cross-examination of the complaining witness himself.</p> <p>A verdict of guilty with recommendation to mercy does not violate public policy or entitle respondent to a new trial.</p> <p>A delay of seven hours in agreeing to a verdict is not uncommon, nor are recommendations to mercy, especially with young offenders, and they do not indicate that the verdict was obtained by improper means.</p> <p>It cannot be assumed that a jury found a false verdict and compromised against conscience.</p>

<p>False pretenses— Qlaim of being a ‘ ‘ storekeeper. ”</p> <p>Act 218 of 1879 provides for the punishment of any person who “with intent to defraud or cheat another shall designedly by color of any false token or writing, or by any other false pretense ” obtain signatures to a written instrument. Held that the statute does not attempt to enumerate the false pretenses in particular terms, so that the term “ any other false pretense ” is not limited to a particular kind of pretense, and the rule of construction that general terms must be con- ■ strued as of the same tenor as preceding particular terms, previously, enumerated, has no application.</p> <p>The false pretense of being a storekeeper, if used successfully for the purpose of obtaining credit, will sustain a conviction under Act 218 of 1879 which provides for the punishment of persons who, with intent to defraud, obtain money from others by false pretenses.</p>

<p>Error to Recorder’s Court of Detroit.</p> <p>Information for attempt to commit burglary.</p>

<p> Meamination as to plea of guilty. </p> <p>Judgment on a plea of guilty was reversed and the prisoner discharged, where the record showed that the information was sworn to and the accused was arraigned, pleaded guilty, and was sentenced on the same day, and did not show anything from which it could he inferred that hé was examined under Act 99 of 1875 as to whether his plea of guilty was voluntary.</p>

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

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

<p>Societies for unlawful purposes ca/nnot sue as corporations — Security for costs.</p> <p>Corporations cannot exist except by force of express law.</p> <p>A society that cannot be incorporated because organized to resist tbe enforcement of laws, cannot sue in its society name for tbe collection of a debt.</p> <p>Judgment will not be rendered in the Supreme Court against a security for costs where judgment for the plaintiff below has been reversed and the case sent back for new trial, and it is not shown that the security was required, and there is nothing on the face of the bond to show that it was approved.</p>

<p>Certiorari to Joseph Then, a Circuit Court Commissioner for Allegan county.</p>

<p> Damages for collision on highway. </p> <p>In an action for damages from defendant’s careless driving it is not admissible on cross-examination of tbe plaintiff to ask bim as to bis own' babits of running borses on tbe highway, or of being intoxicated while driving, if it is not pretended that be was indulging either of tbe babits at tbe time of tbe injury.</p>

<p>Error to Allegan.</p> <p>Assumpsit. Defendant Chamberlain brings error.</p>

Bill for accounting : to compel a conveyance of tbe premises to complainant; to compel the delivery of certain bonds to complainant; and to enjoin defendant from suing in ejectment for the premises referred to in the bill. Complainant appeals.

<p>Insurance — Revivor of policy — Payment by note — Benewal receipts — Surprise as ground of equity.</p> <p>A life insurance agent by false representations that a policy had become forfeited, and by great urgency, persuaded the insured, who was too feeble to withstand his arguments, and whom he would allow no time for consultation, to give up his policy which was for the benefit of his wife, and accept instead a policy, for its surrender value. The wife was not consulted as if she had any rights, and the husband died soon afterwards. Held, that a bill seasonably brought by the wife to compel the re-establishment of the policy, should be sustained.</p> <p>The acceptance of a note for the amount of premium due on a life insurance policy and the giving of a renewal receipt by the company, amount to a payment of the premium.</p> <p>The doctrine which makes parties bear the consequences of mistakes of law is often hard and can only be maintained on grounds of general policy. It is not so universal as to exclude relief in some instances where mistake is only one element and is combined with the fraud or misconduct of the other party.</p> <p>Equity often gives relief where one has been surprised into doing what it is inequitable to hold him to, where fact and law are blended, or whore the mistake of law is so combined with other things that it cannot reasonably be regarded as a deliberate blunder.</p> <p>A delay of less than two months in filing a-bill to obtain the re-establishmcnt of an insurance policy, the surrender of which had been procured by fraud was not such delay as to preclude relief, the insured having died meanwhile, and the beneficiary being his wife, and no injury being caused to the company.</p>

<p> Replevin in State Court against United States Ma/rshal. </p> <p>Replevin, will lie in a State court against a United States Marshal to recover goods seized by Mm bn final process issued from a federal court, where the goods belong to some other person than the defendant named in the writ.</p>

<p> Title to crops on land fraudulently ti’amsferred. </p> <p>A judgment creditor is entitled to crops grown upon the land of his debtor after it has been transferred in fraud of his rights, so far at least as the fraudulent grantor retains an interest in them by an understand- . ing with the grantee; and where there is reason to suppose there is such collusion all doubts should be solved in the creditor’s favor.</p> <p>■Considerable latitude is allowed in the introduction of evidence tending to show fraud.</p>

<p>Good faith of execution purchase — Enforcement of parol contract for land.</p> <p>A purchaser on execution who knows that land which he buys was subject to a contract of sale before judgment was rendered is not a iona fide purchaser as against the contract purchaser.</p> <p>A parol contract was made for the sale of land and was carried out by giving a deed which was ineffectual for misdescription. The land was afterwards levied upon and sold on execution, and the contract purchaser filed a bill to enjoin an action of ejectment by the execution purchaser, to correct the mistake in the deed, and to have the deed on execution set aside as clouding his title. Eeld, that to entitle complainant to enforce the parol contract as against the owner of the legal title he must show (1) a contract, the terms of which are clear and complete, so that no reasonable doubt can exist inspecting its enforcement according to the understanding of the parties, if enforcement seems equitable; (2) such acts of part performance, as according to equitable principles, will justify its enforcement, notwithstanding the failure to comply with the statute of frauds in making it; (3) the payment of the purchase price.</p>

<p>Post dated drafts — Agent's authority to draw unusual negotiable paper— Bills of exchange — Bv/rden of proving execution— Notice of equities — Local usage.</p> <p>Where defendant in an action on a hill of exchange drawn by his agent, pleads the general issue, and files with it an affidavit denying the execution of the bill, the plaintiff has the burden of proving that it was-drawn with competent authority.</p> <p>The authority of an agent in charge of an iron mine to draw post-dated bills of exchange on his principal was not presumed from his having-done so before without objection, where there was nothing to show that the party relying on his authority knew the fact, and a long interval had passed since it occurred, and the mine had meanwhile become prosperous and better supplied with ready money, and where in the former case the bills were drawn on time and were post-dated only long enough to give the drawee the benefit of the full period of discount after receiving them, while in the latter they were made payable at sight, and post-dated several weeks for the agent’s private advantage.</p> <p>Where knowledge of circumstances that would excite suspicion in the mind of a prudent man on becoming the transferee of negotiable paper is not enough to affect the paper in his hands with pre-existing equities, he must have had actual notice of such equities, or, at least, knowledge of such facts and circumstances as would have made his-taking the paper with the intention of enforcing it an act of bad faith.</p> <p>Parties discounting paper drawn by an agent upon his principal, are bound to act in the light of all facts within their knowledge bearing on his authority, and cannot disregard any fact which might lead a prudent man to suspect that the agent is acting in fraud of his principal.</p> <p>Local usage can affect the general rules of mercantile and banking law only to a very limited extent, and under circumstances in which the usage must be considered as made by a party a part of his contract.</p> <p>A post-dated draft purporting to be payable at sight, is, for all the legal purposes of presentment, demand, protest and payment a draft payable so long after date ; but that authority to make time paper shall be held to cover post-dated paper, their legal effect must not only be the same, but all their incidents so far identical, that both may fairly be supposed to have been in mind when the authority was given.</p> <p>Authority to an agent to give unusual business paper is not to be construed on technical reasoning but on the actual intent.</p> <p>A post-dated bill of exchange differs from a bill made payable a corresponding period after it is drawn, in that the time bill may be sent forward meanwhile for acceptance, while the post-dated bill cannot, and the drawee cannot retain funds to meet it before its date as against other bills previously falling due.</p> <p>An agent’s authority to draw bills of exchange payable on time or at sight, does not include authority to draw post-dated bills.</p>

<p>Taxation — Assessment on false mluation.</p> <p>Failure to perform a public duty can constitute an individual wrong only when some person can sliow that in the public duty was also involved a duty tp himself as an individual, and that he has suffered a special and peculiar injury by reason of its non-performance.</p> <p>The failure to list property for taxation -in accordance with law cannot constitute a wrong to an individual unless he can show that his indi- . vidual assessments are thereby made a larger proportion of the aggregate taxable property than they should have been. The collection of the tax levy may be restrained in such a case so far as it is excessive.</p> <p>'The wrong involved in an assessment of taxes by a supervisor on a false valuation is a public wrong and should be redressed by public prosecution.</p> <p>Action lies to recover back moneys paid under tax proceedings that on their face are fatally defective.</p> <p>A tax assessment is in the nature of a judgment, and cannot be assailed for fraud or irregularity in a suit against an officer who enforces it under process which on its face is valid.</p> <p>It seems that an individual taxpayer has no right of action against a supervisor for assessing property on a false valuation except on the ground of fraud or malice.</p>

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

<p>Claims against estates — Liability of executor — Intent no ground of equitable jurisdiction.</p> <p>A. father obtained the allowance of a claim against his son’s estate, but the son’s widow, who was his executrix, refused to pay it, and conveyed away the property out of which it should have been satisfied, and the estate remained unsettled. Held, that his remedy was not in equity, but, if not lost by neglect, was in the probate court, where in spite of the conveyances the land was liable in due course of administration and for a limited period, to the claims of creditors, and after the arrival of the time of payment the executor was liable personally or on his bond.</p> <p>Where a claimant against an estate neglects to take advantage of the means provided by statute for satisfying his claim, he has no remedy at law or in equity.</p> <p>Intent does not bring a case within equitable jurisdiction if the act to which it attaches does not supply an equitable cause of action.</p>

<p>Error to Mason.</p> <p>Action on recognizance. Plaintiff brings error.</p>

<p>Pleadings in justices court — Extortion by duress of imprisonment.</p> <p>A declaration claiming to recover back as damages money which defendant had caused to be extorted from plaintiff by duress of imprisonment on criminal process procured by him for that purpose, states a lawful ground of action with sufficient precision, if not demurred to, to be sustained in justices’ courts.</p> <p>No one may derive personal profit from a crime even if he be specially injured by it; and if any one does so, he will be answerable for the profits received, even though he has allowed them to go to another.</p> <p>Formal defects in the proceedings in justices’ courts will be overlooked if no objection is made to them until evidence is offered.</p>

<p>Accounting by swviving partners — Discount and interest charges — Review of appellees objections.</p> <p>A decree against surviving partners for an accounting for assets of which, they had jointly taken possession, should be against them jointly for the whole amount, and not severally for the sums into which they divided it between themselves.</p> <p>Discount and interest charges are inseparably connected with the principal sum, and properly allowed on an accounting against surviving partners in connection with charges for moneys borrowed by the deceased member of the firm.</p> <p>Where objections to a decree for an accounting relate to details of practice, and were not raised in the lower court, and are urged by a party who has taken no appeal, they will not be noticed in the appellate court.</p> <p>Parties who have not appealed cannot ask a modification of the decree in their favor; though if the appellants have opened the accounting generally and obtained a change in their favor, the appellate court will consider the objections of the appellees to the decree.</p>

<p> Foreclosure for portion of consideration withheld to perfect title. </p> <p>The grantee of land was allowed to withhold part of the consideration for a specified time in order to take up an outstanding title, and to secure the money withheld, he gave a mortgage. Held that it was no defense to its foreclosure that to perfect his title he had paid the amount withheld to a person who claimed to have obtained a quitclaim of the outstanding title, when it was neither averred in the answer nor shown by the proofs that the latter claim was valid or truthful.</p>

<p>Question for the jwry — Scintilla of emdence.</p> <p>A scintilla of evidence gives the case to the jury.</p>

<p> No consideration for agent’s agreement for his own benefit. </p> <p>An agreement made by an agent entirely on his principal’s behalf, but wholly for his own benefit, is without consideration, and will not sustain an action by the agent in his own name.</p>

<p>Judgment by default after short notice of rule to plead — Waiver of defects by silence — Establishment of rights by laches — Costs on mandamus.</p> <p>A judgment by default is not absolutely void for want of sufficient notice of the rule to plead, where process has been personally served; and if the party suffering judgment neglects to seek relief against it on error, until the other party would have lost his remedy by lapse of time, he cannot then have it vacated by mandamus.</p> <p>Defects in notice are waived if no seasonable complaint is made where the party notified has already been regularly served and suit is fairly progressing.</p> <p>Costs were not awarded on the denial of a writ of mandamus against an inferior court where the proceeding was brought at the respondent’s request.</p> <p>'The special statutory methods of obtaining jurisdiction where actual notice is not given, stand entirely on their own regularity, and if not regular, proceedings based on them are nullities. But where personal service has been had, farther proceedings are not necessarily fatally ■defective for all purposes, especially if rights based on them are allowed to become established by lapse of time without resorting to common law remedies to set such proceedings aside.</p>

<p>Corporate rights — Review on certwrwri.</p> <p>The corporate existence of a company and its right to exercise corporate franchises cannot properly be passed on by the inferior tribunals for assessing damagés in condemning lands and cannot therefore be considered on certiorari to review their action.</p>

<p>Mandamus to require respondent to imprison a person convicted under the Bastardy Act on complaint of the relator.</p>

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

<p>Injunction against closing thoroughfare — Allegation of ownership.</p> <p>An injunction bill was filed to restrain certain defendants from closing up premises which complainants claimed the right tjp use as a street. The bill alleged, in substance, that, in September, 1859, one R., who is also made defendant, being the owner and actual possessor.of certain land, conveyed it to complainant, bounding it as on the south side of G- street, which did not reach the land conveyed, but which R. expressed the intention of opening through the premises after-wards obstructed by defendants; that complainants had bought Telying on such .extension, and said R. had aided in preparing the premises for a highway; that defendants hold land on the north side of these premises under a inortgage from R., dated in December, 1859, and recognizing the proposed extension of G street; and that they had erected a small brick office which stands partly on the premises, and for the removal of which complainants ask. Held, that the bill sufficiently alleges the ownership of R. and the source of the other defendants’ title, to be sustained at least unless specially demurred to; and that a court of equity could require the destruction or removal of the building under the circumstances, there being no adequate remedy at law.</p>

<p>Estoppel from contesting landlord’s title — Judgment for value.</p> <p>A tenant’s rights rest upon corresponding rights in his landlord, and so long as he claims the former he cannot dispute the latter.</p> <p>A defendant in ejectment who has obtained possession by collusion with plaintiff’s tenant, is estopped for purposes of recovering possession from disputing the plaintiff's title; but the estoppel is not equivalent to an'admission of his title in fee.</p> <p>A tenant is estopped from disputing his landlord’s title so long only as the lease continues or he holds over. After he surrenders possession he is as free to set up an independent claim to the property as any other person;.and any one who comes into possession by the tenant’s consent is no farther estopped than he is.</p> <p>A plaintiff in ejectment who has estopped defendant from disputing his present right of possession, but has not established title, cannot take judgment for the value of the premises.</p> <p>A party must stand by the judgment he has elected to take.</p> <p>Judgment.in ejectment for possession cannot be rendered in favor of a plaintiff who has filed his election to take judgment for value, when he is not entitled to the latter but would be entitled to possession.</p>

<p>Appeal from Macomb.</p> <p>Bill for accounting, etc. Bill dismissed below on demurrer. Complainants appeal.</p>

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

<p> Garnishment on transarvpt of judgment. </p> <p>Act 356 of 1879, allowing process in garnishment to be issued after judgment “in all personal actions arising upon contract, expressed or implied, brought in the several circuit courts or municipal courts of civil jurisdiction,” and on “any judgment or decree rendered in any of the several courts hereinbefore mentioned,” is meant only to cover cases in which the process could not have been issued before judgment, and does not apply to justices’ courts but only to courts whose jurisdiction is similar to that of circuit courts.</p> <p>A transcript of a justice’s judgment filed in the circuit court, is not a judgment rendered in the circuit court.</p>

<p>Garnishment — Affidavit—Particularity of averments.</p> <p>Under Act 256 of 1879, an affidavit for a writ of garnishment must state whether the principal suit is on an express, or an implied, contract, and must distinctly cdnnoct the garnish'ee’s indebtedness sworn to with a suit or contract.</p> <p>An affidavit for a writ of garnishment is defective if based upon the-apprehension of any other person than the actual affiant.</p> <p>Act 256 of 1879 does not authorize the writ of garnishment to issue in suits begun by declaration.</p> <p>Garnishment is a harsh and peculiar remedy and ought not to be resorted to Without sufficient reason; and when the affidavit upon which the writ is taken out'is defective no presumption can arise in its favor.</p>

<p> Assignment of railroad stock subscriptions after consolidation—Proof of corporate acts—Declaration on assigned claim. </p> <p>In an action brought by the assignee of a subscription for railroad stock, to recover the amount of the subscription, the declaration alleged the consolidation of the company in which the stock was taken, and the plaintiff sought to introduce in evidence the articles of the original and the consolidated companies. Held, that the objection that they were “incompetent, irrelevant and immaterial ” was not sufficiently specific.</p> <p>Evidence of a stockholders’ meeting to ratify a consolidation agreement is properly objected fa> if no proof has been offered of legal notice of such meeting of stockholders.</p> <p>A plaintiff, who declares upon an assignment of his claim to him by a consolidated railroad company, must fail if he does not show that the statutory conditions to consolidation were substantially observed.</p> <p>One who declares upon a claim held under an assignment from a consolidated company cannot recover on proof merely that it was assigned by one of the constituent companies to his assignor.</p> <p>Whether subscriptions to the stock of one railroad company are assignable by another company into which it has been merged by consolidation—Q.</p>

<p> Claim for expenditures by a son for Ms futlwr. </p> <p>Where a son living in his father’s family expends money at his father’s request, and with his knowledge and assent, in building a house for his father, the father is liable to the son for the amount so expended unless there has been a different understanding between them; and it is for a jury to decide whether there was or nothin view of all the circumstances.</p>

<p>Error — Order for dissolution of attachment.</p> <p>Proceedings to dissolve an attachment are collateral to the main suit,- and a commissioner’s order dissolving it is interlocutory only, releasing the property from the lien of the writ; it is not a judgment, nor is an order of the court affirming it on certiorari.</p> <p>Error does not lie on the affirmance by the circuit court of a commissioner’s order dissolving an attachment; the order only determines the right to the lien, and a writ of error based upon it would not affect the judgment actually given on the merits.</p>

<p> Suit for taxes payable by township into county treasury. </p> <p>A county cannot sue a township at common law for the amount of taxes which the township treasurer should have paid into the county treasury, but has embezzled. But it has a statutory right of action upon the township treasurer’s bond, or it can enforce by mandamus against the township authorities its statutory right to have the amount of taxes re-assessed against the township. Oomp. L. § 1105. And the failure of the suit on the bond does not bar the remedy against the township itself.</p>

<p>Insurance — Loss payable to moi'tgagee — Limitation of time for suing on policy — Suit by administrator of insured.</p> <p>Where a loss under an insurance policy is made payable to a mortgagee, as his mortgage interest may appear, the death of the insured cannot make the policy void under the provision that it shall become so if any change takes place in title or possession. Whether it would have that effect in any case — Q.</p> <p>Where proofs of loss under an insurance policy are received within a reasonable time before the expiration of the period fixed by the policy for bringing suit against it, the company cannot cut off the right to sue by withholding its decision upon the proofs until that period has expired, even though the time allowed for examining the proofs would have consumed it.</p> <p>A claim under a fire insurance policy does not mature until the company has decided whether it will exercise the right to rebuild, if such a right is reserved.</p> <p>Whether the right of action on an insurance policy can be limited to a shorter period than is prescribed by the statute of limitations — Q.</p> <p>Whether a mortgagee’s rights in insured property belonging to a deceased person can be impaired by delay in appointing an administrator, and in furnishing proofs of Joss — Q.</p> <p>An administrator can sue on an insurance policy for the use and benefit of a mortgagee to whom the loss is made payable.,</p>

<p>Error to’ Wayne.</p> <p>Trover. Defendants bring error.</p>

<p> Negotiability of note qualified by proviso. </p> <p>A promise to pay for goods wliicli contains a provision leaving it optional with the payee to reclaim the goods if they are not paid for by a day certain is assignable after maturity as a chose in action, and may be sued upon without being indorsed by the assignor.</p>

Assumpsit by Mary E. Eggemann to recover a balance of the consideration for certain lands sold by her to Michael Martz who held two mortgages upon it which he was to discharge as part of the consideration. There were also part-paid certificates of the sale of the land by the State to a previous owner, the payment of which was to be completed.

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

<p>Error to Montcalm.1</p> <p>Replevin. Plaintiff brings error.</p>

<p>Joint makers of-notes — Waiver of statute of limitations — Suit on the note by one joint maker against the other — Judgment on certioraoi.</p> <p>A joint maker of a note, who takes it up after maturity, can sue the other-joint maker as for money paid to the latter’s use, and if his declaration covers the case, it is immaterial that he also declares specially on the note. ^</p> <p>A surety on a joint note, whose liability is barred by the statute of limitations, can waive his privilege if he chooses and take up the note and enforce it against his principal, if the latter has kept it alive against himself.</p> <p>The Supreme Court can render the proper judgment in a case brought to the circuit court on certiorari and taken up on error; but if the plaintiff in error has received too favorable a judgment below, and the other party does not complain, it can only affirm the judgment though it may give costs to the defendant in error.</p>

<p>Case made from Osceola.</p>

<p>Logging contract — Evidence of loom-scale.</p> <p>Where there are conflicting versions of an agreement, it is for the jury to find which is true, and nothing can be shut out on the assumption that one is correct rather than the other.</p> <p>A logging contract was rescinded by mutual agreement, but the party who did the lumbering afterwards sued for a balance due him, and the defendant claimed as a set-off the sum of $500, which he said plaintiff was to pay as part of the rescission, Held, that in submitting the matter the judge was warranted in assuming that this item was in dispute.</p> <p>In a suit for compensation for getting out logs the scale by which to determine the quantity of feet' got out was disputed, and it was shown that certain purchasers had received the logs from the boom company, and paid according to the boom scale, with the apparent acquiescence of the parties. Evidence to show what the boom scale was, was ruled out on the ground that the witness under examination, who was secretary of the boom company, did not make it. Held erroneous, as the material question was whether or not it was the boom company’s scale, and it was for the jury to determine, after finding whether the parties had agreed that the purchasers should be guided by it in receiving the logs and in making payments in their interest.</p>

<p> Bjeetment by. devisee before probate. </p> <p>The fact that a will has not yet been proved does not prevent a devisee of lands or a party claiming under him from bringing ejectment.</p> <p>The Michigan statutes of descents applies only to property which is not devised.</p> <p>A devisee may take his estate as of the death of the testator, except so far as otherwise provided by statute.</p> <p>Probate of a will for all purposes relating to the existence and transfer of title, relates back to the death of the testator.</p> <p>The plaintiff in ejectment is not bound, under forms of pleading used in Michigan, to aver the character of his title, except as to its extent.</p>

<p>Error to Kalamazoo.</p> <p>Debt on judgment. Defendant brings error.</p>

<p>Measurement of lumber — Hearsay—Interest as damages — Referee’s rern't.</p> <p>A contract for sawing lumber provided for its measurement as the work advanced. In an action on the contract, proof was offered of a meas- ' urementmade more than a year afterwards. Held, admissible, in the absence of any explanation in the record, as strict compliance with the terms of the contract might have been impossible or been waived. Measurement by either party or by both would have been admissible and proper to guard against mistakes or fraud, and if measurement was not made on delivery it might be made aFterwards.</p> <p>In an action on a contract for sawing logs testimony that a witness had heard something going to affect the correctness of plaintiffs’ scale from certain specified persons, is not hearsay.</p> <p>Evidence that might have been proper must be presumed so, where the record shows nothing to the contrary.</p> <p>In an action to recover charges for sawing logs defendant claimed an offset of the damages resulting to him from delay in doing the work, and was allowed the interest on the value of the logs for the period of delay. Held, that although he was not entitled to interest, the damages might very justly be measured by the rate of interest if the market value of the logs had not changed, and the award was sustained.</p> <p>A referee’s conclusions are presumed to have been warranted by the proofs if the bill of exceptions does not contain all the evidence.</p> <p>An article that has a market value is presumably salable.</p>

<p>ffijectment — ffiqnitable defenses to action at law,</p> <p>A guardian suing in ejectment for the benefit of wards claiming by descent makes & prima facie case by proving paper title to the ward’s ancestor, descent to the ward, and the plaintiff’s title as guardian to sue for possession.</p> <p>The common law rule excluding all defenses in ejectment that are not legal has been abrogated in many parts of the United States, but the federal courts recognize it and it remains in force in Michigan.</p> <p>A defendant in ejectment cannot interpose to the action at law the merely equitable defense that the plaintiff’s title was fraudulently obtained, especially where he himself has only an equitable claim under a contract giving no right to the possession.</p> <p>A deed collusively given in execution of a land' contract, possession of which was surreptitiously obtained in the absence of the party holding it, is not absolutely void in law as for fraud, as it passes the legal title to the grantee named, and the contract purchaser cannot cause it to enurelto himself except by showing his equitable right and title as against the grantee; and this showing cannot be made in an action of ejectment.</p>

<p>Action fen’ negligent ingury — Prima facie showing.</p> <p>The gravamen of an action for damages for negligent injury is that plaintiff has been damnified by the wrongful and negligent conduct of defendant without having contributed thereto by his own negligence, and as the absence of contributory negligence is part of his case, he should show that he acted with duo care. But it is enough if he merely puts in evidence the facts and circumstances attending the injury: and if these show negligent conduct in the defendant from which the injury followed as a direct and proximate consequence, and do not show contributory negligence, a prima facie case is established.</p> <p>In an action for negligent injury, if the proofs are such that reasonable minds may differ as to the fact of contributory negligence, the case should go to the' jury; its absence need not be conclusively shown.</p> <p>A case can be taken from the jury on the facts only when it is susceptible of but one just opinion.</p>

<p>Public officer — Contempts—JReview of order refusing to inflict penalty — Original jurisdiction.</p> <p>An order refusing a petition for the punishment of a sheriff for contempt in omitting the performance of his duty is not reviewable by the Supreme Court on certiorari.</p> <p>A judgment subjecting a respondent in mandamus proceedings to liability to pay money or stand imprisoned for contempt in neglecting to obey the writ, is as final as any other money or final judgment and is reviewable.</p> <p>The Supreme Court has power to review in some way all final judgments.</p> <p>The provision protecting a respondent in mandamus from all farther liability on paying a fine imposed for neglect to obey the writ (Comp. L. § 7111) does not apply if an order to pay such' fine has been denied; and the refusal of the order is not prima facie evidence .that he has not made himself liable for the results of his omission.</p> <p>Private remedies for the omission of an officer to execute legal process are not lost by the failure of statutory proceedings against him for contempt; and as the denial of the latter remedy is not a final judgment and appellate jurisdiction is not given in such cases, it would be original action for the Supreme Court to review it, whether the amount of damages could or could not be fixed with certainty.</p> <p>Damages for a sheriff’s omission to serve process are in their nature unliquidated.</p> <p>It would be original action for the Supreme Court to review the action of a lower court in fixing the elements of a recovery of damages if judicial discretion in doing so is necessary, and has not been exercised.</p>

<p>Dedication of land to the public — Acceptance—Ejectment—Election to take judgment for value.</p> <p>A dedication of land to the public may be made out without any public record of it; the failure to record is important, only as it concerns the naked legal title which the record would have vested in the designated parties in trust for the purposes intended.</p> <p>A common law dedication of lands to the public must be accepted witliiu a reasonable time or the offer will be considered withdrawn.</p> <p>The owners of village property platted it, and marked a square on the plat as a “public square,” and in an accompanying description declared it to be “designed for buildings for public uses.” The square was subdivided by streets, and no public use was ever made of two of the subdivisions, though the public authorities once assumed to convey-the land included in the square to private persons “for the uses and purposes for which said square and grounds were conveyed to said county;” they also reserved the right to erect a court house on a specified parcel. Held, that the reservation tended to negative the intention to use the rest of the land for public purposes; and that the clause in the deed recognizing the purpose of the offer of dedication, was not an acceptance of such offer.</p> <p>The institution of a suit by public authorities for the possession of land which had been offered for public uses, was not an acceptance of the dedication.</p> <p>A county cannot bring ejectment for land which the owners had offered to dedicate for public uses nearly fifty years before, if it has never accepted the offer, and has no intention of using it for public .purposes.</p> <p>Where a grantee’s right to a parcel of land is confined to the use of it for a specific purpose, he cannot, on bringing ejectment for it, elect to abandon his claim and take the value of the land.</p> <p>A donee has no right as against the donor to sell for one purpose what ■ was given him for another.</p>

<p>Mandamus to vacate injunction to restrain use of road-bed try raikeay company — Identity of corporations — Final order in equity — Transmutation of debiofs assets — Jurisdiction in mandamus.</p> <p>A firm of loggers agreed to build a tram railway and contracted with the corporation controlling it to carry their lumber at certain rates. The corporation afterward assigned, and its assets went into the hands of one of the parties with whom the agreement to build was made, and through him became the property of a railway company in which he was a principal stockholder. This company refused to fulfill the agreement for transportation, and the loggers sued out a preliminary injunction restraining it from running over so much of-the road as they ha'd built except on condition of carrying their lumber at the rates agreed on. Held, that the agreement was no more than an ordinary executory contract, was not enforcible in equity, and gave complainants no more control than other contractors over the road-bed; that the preliminary injunction was a final order and void, and that mandamus would lie to set it aside.</p> <p>The transfer of the assets of one corporation to another does not establish any legal identity between them.</p> <p>A judgment creditor only can inquire into the transmutation of his debt- or’s assets; and then he can only reach assets equitably belonging to his debtor.</p> <p>Any decree or order divesting possession or rights on a preliminary inquiry is illegal and void; and when made in equity is a final order and appealable, though an appeal is not necessary to rescind it.</p> <p>Mandamus is a prerogative writ designed to afford a summary and specific remedy where the party applying for it would otherwise be subjected to serious injustice.</p> <p>The jurisdiction of the Supreme Court in mandamus cases is not statutory but plenary. The Constitution gives it supervision over all inferior tribunals and enjoins tbc abolition as far as possible of the distinction between, legal and equitable jurisdictions. The writ may therefore issue even where other remedies exist, if they are not sufficiently, speedy to prevent material injury.</p> <p>The fact that there is a specific remedy in equity does not necessarily oust the jurisdiction of a common law court, but only appeals to its discretion, which may be exercised' where the circumstances call for prompt interference by the courls.</p> <p>Mandamus lies to vacate an illegal injunction where the party affected thereby would otherwise have to submit to serious injury, or to the risk of proceedings for contempt in disregarding it.</p>

Exceptions before judgment from tbe Superior Court of Grand Rapids. Information for breaking and entering a store not adjoining a dwelling. Respondent was found guilty.

<p>Error to the Recorder’s Court of Detroit.</p> <p>Information for larceny. Respondent was found guilty.</p>

<p>Exceptions before - judgment from the Recorder’s Court of Detroit.</p> <p>Information for receiving stolen property. Respondent was convicted below.</p>

Exceptions before judgment from Recorder’s Court of Detroit. Information for breaking and entering a store, etc. Respondent was convicted below.

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

<p>Appeal from Kalamazoo.</p> <p>Bill in aid of execution. Dismissed below on proofs. Complainants appeal.</p>

<p>Trover for goods seized on attachment — Charge as to evidence.</p> <p>In trover for goods seized on an attachment the -defense gave evidence as to the state of the debtor’s bank account. Held that on rebuttal the debtor could be asked how much he had checked out of the bank within the period under examination, as it was pertinent to a portion -of his affairs examined into by the defense.</p> <p>It is proper to direct the jury’s attention to important evidence in such terms as to explain the case and aid them to give their attention to essential points, if it is done without misleading them or withdrawing their attention from other important evidence. But when the question is one of fact, and is therefore for the jury alone, it is not error to refuse instructions singling out particular facts, and expressing the opinion that if they should he proved, they would decide the issue.</p> <p>A purchase of goods from a debtor, with the' sole purpose' of obtaining payment of an honest debt, does not make the sale void as to other creditors even though the debtor intended thereby to hinder or defraud them, if the purchaser did not share his fraudulent intent.</p> <p>A sale by a debtor to a creditor in payment of a debt is to be considered as a whole; and if there is a balance due the debtor for which the purchaser gives his notes, it is not for that reason alone to be set aside to that extent in favor of other creditors.</p> <p>An action by vendor for payment is in affirmance of the sale and precludes him from denying it.</p>

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

<p>Mortgage of lands — Inequitable stipulations — Ex pan'te receiverships.</p> <p>Courts of equity cannot appoint receivers except when such appointment is allowed by law (Comp. L. § 5070) and there is no statute authorizing them to malez ex párle orders appointing a receiver to take possession of real estate under foreclosure, even though the parties themselves agree thereto by the terms of the mortgage.</p> <p>Act 62 of 1843 (Comp. L. § 6263) forbids ejectment by a mortgagee before foreclosure absolute. Held,, that .this prevents a mortgagee from obtaining under his mortgage any interest beyond that of a security to be enforced only by a sale on foreclosure, and that it debars him from any right of possession.</p> <p>Any provision in a mortgage of -lands which permits ejectment on a mere default in payment, or allows an ex pa/rte order for a receiver of rents and profits, or destroys in advance the equity of redemption is contrary to equity and a court of chancery will not enforce it.</p>

Ejectment by Weir for premises quit-claimed to him December 21, 1877, by Janet (Young) Hyndmarsli of Glasgow, Scotland, but claimed by defendants under a warranty deed given December 9, 1860, by-Euphemia Young to Benjamin E. Morton, trustee, who conveyed them by warranty deed, July 19, 1866, to the Michigan Stove Works. Euphemia Young was the widow of Hugh Andrew Young and Janet Hyndmarsli was his sister, and both claimed the premises under his will.

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

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

Mandamus to require a circuit court commissioner to issue execution for costs already taxed by him in proceedings under the' Fraudulent Debtor’s Act.

<p>Return?of summons — Computation of time.</p> <p>A justice’s summons returnable not less than two days from its date is defective if made returnable on the second day after it was issued.</p>

<p>Mandamus to vacate an order extending the time for settling a case.</p>

<p>Certiorari to Drain Commissioner and Township Clerk.</p>

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

<p>Judgment creditor’s MU — Transfer of property to wife — Costs on separate appeal — Disposition of claims of third parties.</p> <p>Where a Judgment creditor’s bill is filed to set aside voluntary conveyances made by a man to his wife long before he became indebted to complainant, the latter must show that they were made with intent to defraud either existing or subsequent creditors.</p> <p>Where a man, while solvent, makes provision for his wife that is not extravagant in view of existing circumstances, and does so in good faith and not in anticipation of reverses, it cannot be set aside on a bill in aid of execution for a debt incurred afterwards.</p> <p>Where a Judgment creditor’s bill to set aside a conveyance to a wife impleads as defendant a person holding securities belonging to her but sought by complainant, and he takes a separate appeal from a decree in her favor, costs on affirmance as against him are allowed to the wife.</p> <p>On an appeal from a decree dismissing a Judgment creditor’s bill, the Supreme Court can determine the claims of a person impleaded as holding securities belonging to a principal defendant, but claiming them in complainant’s interest and against the owner’s will and with no lien upon them.</p>

<p>Laying out highway — Appeal to township hoard — Notice.</p> <p>Appealing from the action of highway commissioners to the township board, whose decision is made final by Comp. L. § 1364, isa waiver of previous defects and irregularities.</p> <p>The action of township boards on appeal from .the highway commissioners cannot be sustained if it does not appear that the party injured by it had notice of their meeting, even though the return shows thát it was held at his house.</p> <p>The fact of notice of a meeting of township boards to review the action of highway commissioners, is jurisdictional and must appear of record. ></p>

<p> Injunction bond valid though bill is dismissed. </p> <p>Where an injunction is allowed on condition that the petitioner therefor give the defendants a bond to indemnify them for any damage which the injunction may cause them, the bond remains valid and will sustain a recovery even though the injunction bill is dismissed for want of jurisdiction. ,</p>

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

<p>Presumption of genuineness from due acknowledgment of comeyamce — Forgery — SMdence.</p> <p>A genuine certificate of acknowledgment is presumptive evidence of the genuineness of the document to which it is attached.</p> <p>The acknowledging officer is bound to inform himself of the identity of the parties acknowledging a conveyance.</p> <p>The defense to a foreclosure was that the mortgage was forged. But it appeared that the persons actually and nominally interested as mortgagees were both dead; that the'mortgager and his wife were the only persons living who knew the real facts; that the witnesses to the acknowledgment, one of whom was the acknowledging officer, were reputable and upright men, and that their signatures were genuine; that the signature purporting to be that of the mortgager and alleged to be,forged, resembled that attached by him to his answer in the foreclosure suit, and both were in an easy handwriting unlikely to be feigned; that the defendant had tried to misrepresent the spelling of his name, and his explanation of the circumstances of an alleged payment for the mortgaged land were unsatisfactory and were not corroborated, and his manner as a witness was evasive. Held that in view of the facts and circumstances the defense was not sufficiently made out.</p>

Bill to compel re-assignment of certificates of purchase assigned to defendants, and to restrain them from conveying-the property. The bill alleges that complainants Spoon and Thompson were joint owners of a part-paid certificate of purchase of a lot of primary school lands on which there was considerable pine timber ; that defendant Gilbert applied to ©.

<p>Labor debts — Declaration—A contractor is not a “ laborer,” but a laborer’s team may be — Time-checks in evidence — Nature of defendants liability.</p> <p>In sueing a railroad company for a labor debt under Comp. L., §§ 2393-5, a declaration on the common counts in assumpsit with, mere allusions to the statute and a statement of plaintiff’s title by assignment, is not enough; the existence of the facts upon which the statute bases the right of action must be averred.</p> <p>A statute, even when it is remedial, must be followed with strictness where it gives a remedy against a party who would not otherwise be liable.</p> <p>A statutory right of action against a corporation for labor done and materials furnished follows the assignment of the claim; otherwise it would be determined by the claimant’s death, and perhaps by his insolvency.</p> <p>Contractors and sub-contractors are not “laborers” within the meaning of the statute giving a right of action for labor debts.</p> <p>Under an act giving a right of action for labor debts, a laborer may sue for work done by his team, where no right arises from its service to any other person.</p> <p>Time-checks issued by a sub-contractor to laborers are in the nature of hearsay, and inadmissible against objection in an action for a labor debt.</p> <p>A suit against a railroad corporation for a labor debt is to fix it with a liability resulting from its ownership of the z’oad, and will not admit of the theoz-y that defendant is mez'ely an agent of the owner.</p>

<p>Labor debts — LAmitation of liability — Pleadings.</p> <p>A corporation is not liable for labor to persons hired by a contractor or sub-contractor except so far as it is indebted to the latter.</p> <p>Where a declaration sets forth separate causes of action, one of which is statutory and the other at common law, neither can be established if facts needed to make out either are wanting.</p> <p>An unwritten promise by a railroad corporation to a contractor, to pay the latter’s obligations to his laborers, will not sustain an action.</p> <p>Where a railroad contractor has assigned his contract to the superintendent of the company and the latter has assumed his debts to laborers, the company’s liability, if any, for a labor debt does not rest on Comp. L., §§ 2398-5, but is at common law on a special contract; and the declaration must so aver the cause of action.</p>

<p>Asscmlt with intent to ravish — Evidence—Exemplary damages.</p> <p>The plaintiff in an action for an assault with intent to ravish showed that the outrage was attempted in an upper room of a certain hotel, and that defendant had told her that he was in the habit of going there with women; that the keeper of the house expected him, and that it would be of no use to make any noise. Said that the testimony of another witness that defendant had tried to get her to go with him to the same house and had then told her that he was in the habit of taking girls there, and that all was arranged there, was relevant and admissible as corroborating plaintiff’s story and showing that her danger was real and not feigned.</p> <p>In an action for damages caused by an assault with intent to ravish, the plaintiff’s physician was properly allowed to testify that after the assault he found her in a condition for which he could not account until he heard of the attempted outrage, and that he was satisfied that if the fact was true, it would account for her state.</p> <p>A wrong doer is liable for the natural results of his trespass, and the jury may take into account the disgrace as well as the physical suffering caused by it.</p>

<p>Judgment in garnishment — Justice's jurisdiction on substituted sendee— Intervenors.</p> <p>A justice cannot give judgment against a garnishee until after he has rendered a valid judgment against the principal defendant in a cause in which he had jurisdiction.</p> <p>A justice acquires no jurisdiction over a defendant who does not appear, where the return to the summons only shows that it was served at his last place of residence upon a specified person described as a person of suitable age and discretion, but not as a member of the family, and does not show that it was served in the presence of some one of the family.</p> <p>The rights of intervenors are in some degree protected in garnishment proceedings in courts of record, but not in justices’ courts; and justices have no discretionary authority to interfere in their behalf.</p> <p>Judgment was rendered against a garnishee by a justice who had never acquired jurisdiction in the principal case, though he had rendered judgment therein, but the garnishee paid the judgment, and being afterwards sued by the assignee of another claim against the principal debtor, interposed her payment of the judgment in garnishment as a defense. Held, that as the judgment in the principal case was void, the defense could not be allowed.</p>

<p>Appeal from the Superior Court of Detroit.</p> <p>Bill for partition. Dismissed on demurrer.</p>

<p>Divorce — Desertion and cruelty.</p> <p>A husband is not entitled, even upon a cross-bill, to a divorce as for desertion where his wife, after refusing for more than two years to leave her parents and live with him finally returned, and her husband lived in the same house with her for years and exacted her services as cook and housekeeper without payment, before filing his bill in answer to one filed by her for cruelty and refusal to continue their marital relations.</p> <p>Extreme cruelty cannot be alleged as a cause for divorce from a wife for conduct which could only be cruelty in wounding the feelings of a faithful husband, where the husband himself is at the same time denying the wife’s right to any consideration.</p>

<p>Proceedings to lay out drain — Return as to notice — Laches.</p> <p>A drain commissioner’s return to a writ by certiorari that he “ gave the notice required by the statutes to the parties interested in said water course ” is insufficient to sustain his proceedings in laying out a ditch.</p> <p>"Where a notice of proceedings to lay out a drain has not been .given in strict compliance with the statute, subsequent proceedings are void as to those who do not waive notice or are otherwise estopped from objecting.</p> <p>■ Whether a year’s delay in making a plat of a proposed ditch to be laid out under proceedings taken by a drain commissioner, would not make subsequent proceedings void for want of jurisdiction — Q.</p> <p>The right to complain of proceedings to lay out a ditch is not lost by delay where the cause of complaint does not develop itself until after the work is done and paid for; as where the opening of a ditch converted a lake bordering on plaintiff’s land into a sickening mud-hole though he had been authoritatively assured that it would not lower the water.</p>

<p> Tm titles. </p> <p>A township tax levy for highway purposes is properly included with the regular highway tax when spread upon the assessment rolls, and need not be placed in the column for township taxes.</p> <p>Where a general levy for highway purposes exceeds five mills per cent, on the township valuation, it will defeat any tax sale made for an aggregate of taxes of which it forms a part.</p> <p>The equalization of assessment rolls by the board of supervisors is not defeated by the fact that the report of equalization was not in writing and that there was no written resolution adopting it.</p> <p>A board of supervisors in equalizing assessment rolls, determines whether the relative valuations of real property are disproportionate, and makes the necessary additions or deductions to or from the whole taxable property of the township.</p> <p>A county tax is not defeated for want of proper action by the board of supervisors in determining the amount of money to be raised, where the record of the clerk of the board shows the acceptance of a report of the finance committee and the adoption of a resolution to raise the sums reported.</p> <p>A township tax exceeding the amount voted by the township may be sustained on the presumption that the township board had exercised its statutory right to increase the amount, if there is no showing to the contrary.</p> <p>Where the validity of a tax in aid of a county agricultural society depended on whether or not a certificate by its officers that the society had raised $100 for the year had been presented to the board of supervisors, and the county clerk could find no such certificate in his office, it was held presumable that the proper certificate had been presented, and that the presumption could not be rebutted by the testimony of a supervisor that he had no recollection whether it had been or not.</p> <p>Omission to equalize the assessment rolls at the October session of the board of supervisors as required by Comp. L. § 993 did not defeat a tax where the same board had already made at its June session the equalization required every fifth year by Comp. L. § 303.</p> <p>A surveyor’s tax included in a levy is presumably lawful, as such a burden upon particular parcels of land is allowed in some cases to meet the cost of their survey. Comp. L. § 595.</p> <p>A tax is invalid if the supervisor’s certificate to the assessment roll, in stating that he has estimated the real estate set down therein at what he believed to be the true cash value thereof, does not add in effect, “and not at the price it would sell for at a forced or auction sale.”</p> <p>The statutory provisions that no sale for delinquent taxes shall be held invalid unless it be made to appear that all legal taxes were paid or tendered, and that all taxes shall be presumed to be legally assessed until the contrary is affirmatively shown (Comp. L. §1129) are unconstitutional so far as they sustain sales for taxes which are in part illegal.</p> <p>It is a presumption of law that the land demanded for a delinquent tax bears some proportion to the sum to be paid, and that if the tax is in part illegal some portion of the land sold to pay it is taken to satisfy an illegal demand.</p> <p>Tax sales are made in Michigan by the county treasurer, but in most cases he is in no way connected with irregularities; where he has received from the Auditor General a list of the lands with the charges upon them and has made the sale and accounted for the moneys to the authorities apparently entitled to them, he cannot be held liable for illegalities not chargeable to himself; and there can especially be no remedy against him where the lands are struck off to the State for want of bidders, for no money passes through his hands on State bids. The remedy, if any, is in following the illegal levy and finding the person, officer or municipality finally appropriating the money thereby obtained.</p> <p>Penalties for the non-payment of taxes within a fixed time cannot lawfully exceed legal interest.</p>

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

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

<p>Taxation — Assessment at cash value — Notice of increased assessment.</p> <p>The constitutional requirement that property shall be assessed at its cash value (Const., Art. xiv § 12) is as much designed for securing against overvaluation as undervaluation.</p> <p>A tax payer’s assessment cannot be raised by a city board of review without such notice to him as will enable him to appear and object to the valuation on which it rests; if raised without such notice he is only liable upon the former assessment, and if he pays the whole under protest he can recover back the excess in an action against the city therefor.</p>

<p>Discontinuance as to joint defendant — Liability of committee managing newspaper — Admissiotis as evidence.</p> <p>Where the attorney for joint defendants has stipulated for a discontinuance as to some of them, the others, having practically acquiesced, cannot urge the non-joinder in bar of farther proceedings.</p> <p>A committee understood to be in charge of a newspaper was sued upon acceptances given in the name of the publishing company by its business manager for goods sold on the credit of the committee. In fixing the liability of the members of the committee, who were shown to have been frequently about the office, and whose meetings appeared to be closely connected with the employment of persons engaged on the paper and with the commencement of its publication, it was held proper to introduce a letter to the plaintiffs from the business manager’s successor assuring them of the responsibility of the gentlemen composing the company, and a document published in the paper itself, purporting to be signed with their names and showing their identity with the management. This evidence, in connection with testimony fairly tending to show that the business manager was not acting for himself, and that it was a duty of the committee to collect and pay over auxiliary funds and to exercise some supervision over the editorial department, made a case for the jury.</p> <p>Admissions of parties may be admissible in evidence as part of the res gestee, even though they cannot bind any one else.</p>

<p>Appeal from Jackson.</p> <p>Bill for an accounting and to set aside a deed. Complainants appeal.</p>

<p>Quo warranto — Demwrrer—Possession of land — Public franchises.</p> <p>An objection of form and not substance should be specially demurred to.</p> <p>An information in the nature of a quo warranto is not demurrable for stating that a municipality “was and now is possessed” of certain promises and that respondents unlawfully hold and exercise the franchises of taking possession of them for a public park. Possession for restricted purposes would not exclude possession as an owner.</p> <p>“Possessed” is a variable term in law; it may imply a temporary interest in lands; or a corporal having; or merely property as owner, in which sense it may be used even though an intruder has excluded the owner for the time; it may also be used when the intruder’s possession is apparently subordinate to that of the general owner. The right of a city to take possession of, and improve as a public park, lands lying outside of its limits, comes only by sovereign grant, and so far as concerns the city is a public franchise.</p> <p>A city may hold and own lands for a public park, and cause them to be improved, not in its public capacity as an agency of the government and subject to State control, but as a corporate individual having private rights which the people have a constitutional right to enjoy undisturbed.</p> <p>A right may be private as belonging to a municipality for the exclusive benefit of its corporators, but public in that individual citizens can have no property in it, and as being a franchise existing only by public and sovereign grant.</p>

<p>Exceptions from Berrien.</p> <p>Information for assault with intent to kill and murder. Respondent was convicted.</p>

<p>Error to Kent.</p> <p>Debt for statutory penalty for neglect to kill a vicious dog. Defendant brings error.</p>

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

<p>Oml damage law — Bight of action.</p> <p>Act 193 of 1877 giving " every wife, child, parent, guardian, husband or other person” a right of action against a liquor seller for injury done the plaintiff by reason of the intoxication of any person, does not give the intoxicated person himself a right of action against the dealer for money stolen from him while drunk.</p> <p>Where a statute, after enumerating specific cases uses a general term to cover others, the latter are understood to be of the same general character, sort or kind with those specified.</p>

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

<p> Agreement to pay proceeds of farm to the mortgagee. </p> <p>A contract reciting that one of the parties holds mortgages on the lands and personalty of the other, in consideration of which the latter assigns to him the net proceeds of the farm, which he promises to apply upon the mortgages, is not itself a chattel mortgage or similar security, and cannot be shown to be by parol evidence; but it can be shown to be fraudulent.</p>

<p>Appeal from Kent.</p> <p>Bill for specific performance. Complainant appeals.</p>

<p>Appeal from Van Burén.</p> <p>Bill for setting aside an award and for an accounting and marshalling of assets. Defendants appeal.</p>

<p>Application of payments — Joinder of partners as complainants in foreclosure — Costs on double appeal.</p> <p>Where a mortgager gave a note for the whole amount of his debt including sums for which he had become indebted before the mortgage was given and which were not secured by it, and the mortgagee applied payments made to him upon the note generally, it was equivalent to an application upon the new and old indebtedness pro rata, and a different application could not be made where it did not satisfactorily appear to have been directed or to have been for the interest of the parties.</p> <p>Partners need not be joined as complainants in the foreclosure of a mortgage given to only one of the firm as trustee for the partnership.</p> <p>Costs may be withheld on affirmance of a decree from which both parties ■have appealed.</p>

<p>Case made after judgment from Wayne.</p> <p>Appeal from commissioners on claims. Claimant had judgment.</p>