Volume 45 — Michigan Reports

<p>Error to Kalamazoo.</p> <p>Garnishment. The garnishee brings error.</p>

<p> Executors may appeal from refusal of prolate. </p> <p>Executors under a will which gives them exclusive powers and trusts, and provides for unborn heirs, may appeal from its disallowance though all the beneficiaries named in it, and all who would have been interested if the decedent had died intestate, should settle the estate among themselves and oppose the appeal.</p> <p>The reasons of a competent testator concern himself only.</p> <p>A will which provides that “after the death of testator’s daughter, he gives her children and grand-children,” etc., contemplates descendants then unborn who shall be in being at the time of the daughter’s death.</p> <p>Mandamus lies to require a circuit judge to hear an appeal by executors from an order of the probate court disallowing a will.</p>

<p>Builder’s lien — Homestead, exemption.</p> <p>A mechanic’s lien cannot he enforced against lands of which there is no written identification in the agreement for the work.</p> <p>A mortgage given by a married man will not bind the homestead unless it is in writing; nor will a mechanic’s lien, if it does not identify the premises by written description.</p> <p>Charges cannot bo imposed on real estate by oral agreements unless there are distinct and positive provisions enabling it to be done.</p>

<p>Boomage — Charges for log driving — Conditional tender.</p> <p>One who contracts to drive logs to a certain point at a fixed rate is bound to discharge any lien for tolls imposed by river improvement companies.</p> <p>A tender may be coupled with such conditions as the party making it has a right to impose, such as that he shall receive what a payment or tender legally made would entitle him to.,</p> <p>A tender need not be divided to meet separate claims where they are all held by one person. Where more is demanded than is due, the person making the tender cannot be put in the wrong by requiring him at his peril to separate just from unjust charges.</p> <p>Whether a boom company must not tender delivery of logs before being entitled to demand boomage charges thereon — Q,</p> <p>An unambiguous contract cannot be varied in its legal effect by the understanding of the parties at or before its execution; and where the only question is as to its legal meaning, its construction cannot be aided by oral evidence of conversations between the parties.</p>

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

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

<p>Destruction of deed — Suit on bond given for payment of partnership debts.</p> <p>Destruction of an unrecorded deed does not revest title in the grantor, but only deprives the grantee of the means of proving his title.</p> <p>Certain lands belonging to an individual partner were included as assets in the partnership articles, and the firm gave a mortgage on them. The owner drew up a deed conveying an undivided half of them to his partner, but it was not recorded and he afterwards destroyed it and took up the mortgage with partnership notes. When he went out of the firm he took a bond from his partner binding the latter to pay all partnership debts, and gave him clear title to the lands, which the partner bought with the other assets. Held, that by destroying the former deed he would have been estopped from enforcing payment of the notes but for the subsequent conveyance of clear title, after which the notes constituted a liability enforceable by suit on the bond.</p>

<p>Appeal from Cass.</p> <p>Bill to set aside deed. Defendant Reed appeals.</p>

<p>Appeal from Barry.</p> <p>Bill for accounting, and to enforce an equitable lien.</p> <p>Complainant appeals.</p>

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

<p>Foreclosure — Petition to be allowed to answer — Title—Costs.</p> <p>Where a defendant brought in by publication, petitions to be heard, his right to be admitted to answer the complainant’s bill on payment of costs (Comp. L., § 5127) is absolute; his equities cannot be decided on affidavits opposing his petition, or in any way except in a healing on the merits.</p> <p>A foreclosure bill necessarily puts the defendant’s title into the controversy; he can only be impleaded on the ground that he has or claims title. And the foreclosure would fail if one who .claims title should be omitted.</p> <p>Where a complainant in foreclosure is confident that a defendant has no interest, there is nothing to prevent his discharging him from the suit, but so long as he is kept on the record, he has a right to be heard.</p> <p>Charges for the traveling of a party and for sundry expenses cannot be included in the legitimate costs of a suit.</p>

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

<p>Stenographer's salary — Apportionment of liability.</p> <p>The Stenographer’s Act (Oomp. L. p. 1528) contemplates that a person appointed stenographer shall hold his office indefinitely, and independently of the county and the electors; that the appointment may be made for an entire judicial circuit whatever the number of counties it contains; and that it maybe made for a single county when the circuit contains no more. But the entire circuit cannot be compelled to pay the appointee more than the statutory salary of $2000, and this should be apportioned by the circuit judge among the counties composing it. § 5035.</p> <p>The several counties composing a judicial circuit should act affirmatively, through their respective boards of supervisors, as a basis for the appointment of a stenographer for the circuit; otherwise the law authorizing such appointments is not operative in every part of it. Blit, in the absence of evidence to tbe contrary, such, action may be fairly presumed where a stenographer’s commission has been issued.</p> <p>A stenographer appointed for a judicial circuit cannot compel the individual counties composing it to pay him specific sums by way of compensation, without showing that their respective quotas toward his statutory salary amount to those sums.</p>

<p> Liability of carrim's of goods for breakage. </p> <p>A court has no right to instruct a jury, or suggest to them, that servants or agents of a party, who are called as witnesses, have any such interest as affects their testimony.</p> <p>"Where an action for an injury to goods transported by successive carriers is brought against one of them, it is error to charge that if the goods were delivered in good order to the first carrier, it is inferable, in the absence of evidence, that they continued so until received by the defendant.</p> <p>One who sues a common carrier for injury to goods must show affirmatively that defendant received them in good order.</p> <p>A carrier of goods must receive and forward articles on the usual terms and deliver them in the condition in which he received them; he has ordinarily no means of opening packages and examining their contents and has nothing to do with previous dealings with the property by independent carriers.</p> <p>A carrier of goods acts as agent of the consignee in transferring them to another carrier, and not as the latter’s agent.</p> <p>One who claims damages for negligence must prove the negligence; it cannot be presumed.</p> <p>A carrier’s obligation to carry safely what he received safely is independent of the question of negligence; but in the absence of proof that goods were delivered to him, or delivered safely, any presumption that he received them goes behind his duty and enters into the origin of the contract for carriage, since there is nothing for the contract to act on until • the goods come into his charge, and until that is proved, the contract is not.</p>

Bill to compel discharge of mortgage and payment of statutory fine for refusing to discharge it on tender of the amount due. Complainant appeals.

<p>Grantoo-’s continued possession — Tax-titles.</p> <p>A grantor’s continued possession is presumed to be in -subordination to his own conveyance, unless, while he is allowed to remain as apparent owner, third persons have in good faith and relying on appearances, acquired rights under him.</p> <p>Where there is a Iona fide controversy as to a title and one of the claimants is in possession, he owes no duty to the other to keep the taxes paid, and he may therefore strengthen his claim by procuring tax-titles. But if a claimant cannot rely on a title purchased by himself, he cannot make use of one obtained by another.</p> <p>Whether one in possession of land and neglecting to pay the taxes on it can rely on a title derived from a sale for such taxes, for the purpose of defeating a conveyance which he had previously made but has not perfected by delivery of possession — Q.</p> <p>Where the validity of a tax-title held by a stranger to the case, is an incidental question, as where it is relied on in defense to an action of ejectment as paramount title in a third person, it seems that the owner should be impleaded.</p>

<p>Error to Lenawee.</p> <p>Case. Defendant brings error.</p>

<p>Fimsdietion of maritime torts — Forfeiture not triable as a collateral issue— Ferry franchise — Negligent injury.</p> <p>State courts may take jurisdiction of an action for a maritime tort where there is a remedy at common law and the wrong is made actionable by State legislation.</p> <p>Forfeiture of a franchise can only be determined in a direct proceeding, and not as a mere incident of an action in tort for the purpose of showing that the party injured was attempting to exercise rights which he had lost.</p> <p>The franchise of keeping a rope-ferry is property having the valuable incidents of other kinds of property and transferable subject to conditions lawfully imposed and to such governmental control as results from its public nature.</p> <p>It is negligence to disregard a positive regulation that boats moving at pight shall exhibit lights, even though the practice may have been otherwise; and if injury is done, it is for the jury to determine how far it was connected with such negligence.</p> <p>In an action for negligent injury the plaintiff must show that the person injured had exercised due care and had not contributed to the injury; this need not be shown by direct evidence, but may he inferred from the circumstances.</p>

<p>Municipal ordinances — Private actions do not lie for breach of public duties.</p> <p>-An oulmance requiring all persons to keep their sidewalks free from ice '-------------’-----— :-j.....-1 u" imposes a purely public duty, and persons injured by slipping on the ice cannot bring private actions against the owners of the premises.</p> <p>Breaches of public duty must be punished in some form of public prosecution, and not by way of individual recovery of damages; though when the duty imposed is for the protection and benefit of a particular individual or class, as well as for that of the public, there may be an individual right of action for individual injury, as well as a public prosecution.</p> <p>When a municipal charter empowers the common council to regulate the care of sidewalks for the public benefit, and provides that lot owners shall be liable to the city for all damages which the city may be compelled to pay for the default in neglecting to observe such regulations, no action against a lot owner can arise, if at all, until after the city has been held liable in a suit against it.</p>

<p>Suits on official bonds — Pleadings.</p> <p>In an action at law, tried without a jury, it is for the trial judge, and not for the appellate court, to hear argument as to the force of the evidence and as to inferences and presumptions, and to draw therefrom and state the necessary conclusions of fact.</p> <p>In an action by a public officer upon a bond running to him in his official character, the objection that it is not enough to designate the plaintiff by his official title alone, but that his individual name should be given, is one that must be taken before pleading to the merits, and cannot be raised for the first time in the appellate court.</p> <p>Pleading in the name of a public office without adding the name of the officer, if a defect, is amendable.</p> <p>Where a statute designates a public officer as the obligee in a bond required from another officer for the public security, he becomes the proper person to bring suit on the bond in the absence of statutory provisions.</p> <p>All public officers, even if not expressly authorized by statute, have a capacity to sue commensurate with their public trusts and duties.</p> <p>A city treasurer’s bond to the county treasurer, after stating the duty covered by the obligation, added the words, “reference being had to the warrant of the supervisor of said township attached, or to be attached, to the assessment roll of the year 1872.” This clause was in excess of the statutory terms of the bond. Reid, that it was surplusage and a nullity, and that the absence of a warrant could not make the bond inapplicable to moneys actually received on the roll.</p> <p>A city treasurer who has given bond to the county treasurer on being notified of the amount of state and county taxes apportioned to his district, is bound in the absence of protest from taxpayers, to pay over to him what he has received in payment of such taxes, even though the authority for their collection was irregular and informal.</p> <p>Sureties on a bond given by a city or county treasurer are not liable in an action thereon for moneys not collected, or moneys lawfully accounted for.</p>

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

<p>“ Orders ” in payment for labor — Accommodation paper — Payment in paper.</p> <p>A mercantile firm delivered goods to the laborers of a mining corporation upon orders drawn in the following form: “ [Date and number]. Due John Dacey, Sr., for labor, from the Marquette & Pacific Rolling Mill Company, four dollars, in goods, at the store of E. H. Mead & Co. $4.00. W. W. Wheaton, Treasurer, by O. S. W. Rice:” and on delivery of goods to the amount so called for, the firm stamped each order “paid.” It was apparently understood that the firm should receive and honor the orders of the corporation, and that the latter should settle with it every month and pay the amount of the orders taken by it. The firm became insolvent and had among its assets a large number of these orders, on which suits were brought as for labor debts, and for the use of the persons to whom the orders were drawn, against one of the stockholders of the corporation. Held, . that these actions would not lie; that the orders could not be treated as having been merely assigned to the firm by those in whose favor they were drawn; and that the use of the words “for labor” in the orders was simply to indicate the nature of'the service for which they were given, and not to keep them alive as against stockholders.</p> <p>A corporation organized for mining purposes would have no authority to issue accommodation paper and deliver it to strangers.</p> <p>Where a corporation gives its paper to a firm which holds 'orders issued by it, payable in goods, and there is no evidence that the paper was given or received in payment of the orders, the transfer of the paper must be held to be no payment.</p> <p>Paper given to be applied upon a debt cannot be considered as accommodation paper.</p>

<p>Appeal from Marquette.</p> <p>Foreclosure. Defendant Parks appeals.</p>

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

<p>Suit by township treasurer for unpaid tax — Certificate to tam-roll, etc. — Ta/xation of business stock.</p> <p>Debt or indebitatus assumpsit is tbe proper form of tbe action which a township treasurer may bring in the name of the township, for the amount of taxes assessed against an individual: the counts of the declaration should briefly explain the subject matter of the debt, though a special declaration is not needed. By Graves, J.</p> <p>Comp. L. § 1016 provides that where a personal tax is returned for nonpayment, the township treasurer may sue for it, and proof of the tax-roll and warrant shall prima facie attest the legality of the assess-meat. Held, that a certificate that “ the foregoing is a true transcript of the tax-roll * * aud the warrant thereto attached,” did not cover a return endorsed upon the transcript, and that the whole document should have been excluded on objection if the offer was made as a unit and embraced the tax-roll, warrant and return together. By Graves, J.</p> <p>A township treasurer cannot sue for the amount of a tax after his war-warrant for collecting it has expired, and his warrant cannot be extended beyond the next annual session of the board of supervisors. By Graves, J.</p> <p>Where the stock of a firm of lumber dealers is sold at their general place of business, but is sawed and shipped elsewhere, it is taxable at the general'place of business, and not in the township where it is manufactured.</p>

<p>Appeal from Genesee.</p> <p>Divorce. Bill dismissed. Complainant appeals*</p>

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

Trover by Sarah A. Holmes, against Rice and Dayton for the conversion' of a fanning mill. Defendants pleaded in justification a judgment in favor of Rice against Lorenzo Holmes, the plaintiff’s husband, and a seizure of the property by Dayton, as constable, to satisfy the execution.

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

<p>Appeal from Ingham.</p> <p>Bill in aid of execution. Dismissed. Complainant appeals.</p>

<p>Divorce — Extreme cruelty — Execution for temporary alimony not issuable.</p> <p>A wife went to the house of her parents to be confined, and did so against the objection of her husband who, however, was living with his own parents, and whose household arrangements were not therefore interfered with. When she was confined site sent word to him, but he did not go to see her at first, and when he did go in reply to a reproachful letter from her, he told her he had received a letter from her full of lies, and had come to warn her that if she was not back before the issue of the next week’s paper he should advertise her; he also intimated that the child was her father’s and not his own, saying that if it had been, it would have been born at home,' but now it had been delivered where it belonged. Said, a case of extreme and wanton cruelty entitling the wife to a divorce.</p> <p>Execution cannot be awarded under Act 44 of 1877, to enforce the collection of temporary alimony,</p>

<p>Certiorari to bring up proceedings for laying out a ditch across the premises of the petitioner, under the County Drain Law, Comp. L. ch. 4T.</p>

<p> Right of action for deceit not assignable. </p> <p>A right of action either at law or in equity is not assignable if it does not, directly or indirectly, involve a right of property.</p> <p>In Michigan equity will not enforce an assignee’s claim of a right to sue for a fraud to his assignor if that is the sole ground of the action.</p> <p>A right of action in trespass on the case for damages from deceit is not assignable.</p> <p>A new trial is not granted on reversal where the count of the delaration on which the verdict rests presents no cause of action, even though the plaintiff might have recovered on some other count.</p>

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

<p> Mandamus to ■issue certificates of election. </p> <p>Mandamus to compel a county clerk to issue a certificate of election to a person shown by the returns to have been legally elected, was denied when it would not have given substantial relief, and the question might be raised again in an issue as to the accuracy of the returns or by proceedings in the nature of quo wm’ranto.</p>

<p>Constitutional construction — “Extinguishment” of debt.</p> <p>The Michigan Constitution provides that certain revenues shall he applied to paying the interest upon educational funds and the interest and principal of the State debt “until the extinguishment of the State debt ” when they shall constitute a part of the Primary School Interest Eund (Art. xiv., § 1). Held that for the purposes of the requirement, the debt is to be considered “extinguished” when there is money enough in the State treasury, not subject to other claims, to pay it, even though it has not matured and has not been actually paid.</p>

<p>Commitment to Ionia Reformatory — Repeals by implication.</p> <p>Persons convicted under Comp. L., ch. 53, cannot be sentenced from another county to the State Reformatory at Ionia as provided by act 110 of 1879, § 12, as chapter 53 permits their discharge on obtaining sureties, and this right would be practically destroyed if they were removed from the county.</p> <p>Repeals by implication are not favored.</p>

Replevin by Catherine Ryan against Preston for nine stacks of wheat. Catherine Ryan had lent money to Margaret Tobin for which she took the latter’s note secured by mortgage on a farm which was 'also covered by a prior mortgage securing a debt of her husband’s to another person. Suit was brought on the Ryan note and on the same day a bill was filed to foreclose the earlier mortgage. A few days later Mrs. Tobin deeded the land to her husband, who died shortly afterward.

<p> Abatement of mill-dam. </p> <p>An injunction to abate a dam which had existed about thirty years and had been erected under permission to raise the water to a certain height, was denied, where the proofs did not conclusively show that the height agreed upon had been exceeded. But as the case contained facts that might properly be submitted to a jury, the denial was without prejudice to any proceedings at law, or to proceedings in equity if these facts should be found against defendant.</p>

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

<p> Constructive partnership. </p> <p>A partnership cannot be implied, as matter of law, from a business relation, if the parties thereto have not made or intended to make a partnership contract and if they have done nothing to estop them from denying the existence of a partnership.</p> <p>Partnership involves community of interest in some lawful commerce or business for the conduct of which the parties are mutually agents for each other but with general powers within the scope of the business, which powers they can restrict by agreement to the extent of making one the sole agent of the rest and of the business.</p> <p>An arrangement by which one man “hires the use” of another’s building from day to day and opens and keeps it as a hotel, paying the owner daily a sum “ equal to one-third of the gross receipts and gross earnings,” does not of itself constitute them partners.</p> <p>There can be no such thing as a partnership as to third persons when there is none as between the parties themselves, and third persons have not been misled by concealment of facts or by deceptive appearances.</p> <p>The test of partnership, as between the parties themselves, is their intent.</p> <p>Participation in profits does not of itself make one a partner.</p>

Mandamus to require respondent to vacate an injunction whereby the relator was restrained from proceeding with an action.

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

<p>Extension of time for settling case — Signing transcript nunc pro tunc— timéis essential in a contract — Acquiescence in forfeiture — Costs.</p> <p>The Supreme Court will extend the time for settling a ease in which the proofs were taken in open court, if the failure to settle it within the prescribed time could not have been prevented by the appellant.</p> <p>Where return has been made to a chancery appeal, the Supreme Court having obtained jurisdiction, will give opportunity to make good such defects as were not due to appellant’s negligence; and if the transcript has not been signed, it will allow the filing of a certificate from the trial judge that the case was settled and the proofs are correct.</p> <p>A contract for the sale of timbered land required the purchaser to pay current and back taxes, and an instalment of the price, annually, but stipulated against waste. Time was made essential, and the contract was subject to forfeiture on default. The purchaser did not pay the taxes, but within the first year cut a large quantity of pine which he sold, besides selling a parcel of the land on time. The vendors ■ also, within the year, sold their interest to W., who went on the land and began to lumber it without any objection from the original contract purchaser, who did not make any offer of payment, but some time afterwards assigned all his rights to G., who had full knowledge of the facts. G. then filed a bill against W. to restrain him from exercising acts of ownership. Eeld that the bill could not be maintained and that complainant must be held responsible for all the expenses incident to the litigation, including charges to which the suit gave rise against lumber cut by W., who could include such charges in his costs.</p> <p>In Michigan time is not usually so far of the essence of a contract that failure to perform within the time fixed will necessarily forfeit it; but when a vendee fails to perform his obligations relief is not a matter of right and will not be granted if, under all the circumstances, including the conduct of the parties, it does not seem jus.t and reasonable.</p> <p>Equity relieves against forfeiture, when it would be oppressive or fraudulent not to.</p> <p>Contemporary parol agreements cannot be set up in violation of express written contracts.</p>

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

<p>ParinersJdp note after dissolution — Action for debt for which a note was given.</p> <p>A firm dissolved after ordering a lot of merchandise, but it was all forwarded before the assignors knew of the dissolution, and after they learned of it, they took a note, made in the firm name by the remaining .partner, for the amount, due. They afterwards brought suit against both partners on the common counts, and on the note. Held (1), that the retiring partner could not be held upon the note against his objection, as after the dissolution the other could not bind him; but (2) that an action on the common count for ,goods sold and delivered would lie against both for the debt.</p> <p>Where a firm agreed to settle for merchandise with a note, and after dissolution a partnership note is given by the remaining partner, the other can repudiate his liability thereon, and if he is released, the vendor can treat the note as different from that agreed on, and it cannot then be regarded as payment.</p>

<p>Error to Ingham.</p> <p>Appeal from probate. Proponent brings error.</p>

<p>Error to Ingham.</p> <p>Trespass qu. cl. Defendant brings error.</p>

<p> Stipulation by nominal defendant for discontinuance of replevin suit. </p> <p>An officer who has seized goods by virtue of legal process is a merely nominal defendant to an action of replevin for them, and unless the real party in interest has refused to indemnify him cannot prejudice the latter’s rights by stipulating with the plaintiff for the dismissal of the suit without judgment.'</p> <p>A stipulation for the dismissal, without judgment, of a suit in replevin for property taken under a chattel mortgage, leaves the property in the mortgager’s hand, releases the sureties on the replevin bond, and, if the property is beyond reach, leaves the mortgagee without adequate remedy.</p>

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

<p>Foreclosure — Decree stands if defendants do not appeal.</p> <p>A decree in foreclosure cannot be changed in favor of the defendants when they have not appealed.</p>

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

<p>Redemption from foreclosure — Fictitious pu/rehase.</p> <p>The owner of premises twice mortgaged conveyed them subject to the mortgages after the first had been foreclosed. Before the time of redemption had expired the grantee paid the mortgage, and having obtained a quit-claim to his wife from the first mortgagee, claimed that she held in her own right under a foreclosure from which' the property had not been redeemed, and that the second mortgage was cut off. Held, that as her name was only used as a cover where her husband was the real party in interest, and as the transaction was probably understood by the mortgagee as substantially a redemption, no equity was made out in the wife’s favor.</p>

<p> liability for infjv/ry from defective sidewalk. </p> <p>A statutory liability created in derogation of the common law cannot be enlarged by construction.</p> <p>Act 244 of 1879 gives a right of action against municipal corporations for any injury sustained by reason'of defective public highways, streets, bridges, crosswalks and culverts. Held that it does not create a municipal liability for injuries caused by defective sidewalks.</p>

<p>Error to Washtenaw.</p> <p>Appeal from allowance of guardian’s account in the probate court. The guardian brings error.</p>

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

<p>Ejectment — Sufficiency of finding of title.</p> <p>In an action of ejectment a finding tracing title to two persons one of whom conveyed, as sole heir, to the other, is defective if there is no finding that he was sole heir or how he became so.</p> <p>Where an action of ejectment rests on the title obtained under a decree in foreclosure against a man and his wife and the wife remains in possession claiming title in her own right, she should be made a defendant in ejectment and it should be found whether she was so brought into the foreclosure suit as to be bound by the decree therein.</p>

<p>Rehearing denied when the ground is not substantial— Variance.</p> <p>Suit was brought in justice’s court on a note purchased from the payee’s, assignee in bankruptcy. The defendant, on cross-examination of the plaintiff's witness, showed without objection that the payee was “thrown into bankruptcy,” and that the note was purchased from, his assignee. But plaintiff’s introduction of the assignee’s deed to the purchaser was objected to on the ground that the assignee’s title was not proven. The deed, however, recited the grantor’s authority by an order of sale from the bankrupt court. The plaintiff farther put in evidence, against objection, an order by the Register in Bankruptcy reciting the choice of the assignee, ordering a bond and requiring him to signify his acceptance, and the assignee testified that he had no doubt he had filed his bond and acceptance. Held, that the defendant had a right so to call out record evidence of the bankruptcy and the authority for the sale, or to waive it; that the term “thrown into-bankruptcy” implied an adjudication; and that the evidence introduced by the plaintiff against objection was admissible.</p> <p>A party insisting upon strict proof must do so consistently from the first; and if his own showing proves that his demand for something farther cannot be in the interest of justice, it should not be favored.</p> <p>A defendant in justice’s court moved for a nonsuit on the ground of variances between the declaration and the proofs in the matter of the-assignment of the paper sued upon. Held, that an appellate court would not regard other variances to which the justice’s attention tad not been called.</p> <p>The Supreme Court, in reviewing the proceedings of a justice, will disregard mere informalities and technicalities, and will not disturb his judgments upon objections which he was given no opportunity to examine, or which were so blindly stated as not to attract his attention.</p>

<p>Accounting for deficit in public moneys — Agency—Forgery—Alloioance of expenditures by public officers — Intes-est on public accounts— Acquiescence in decree — Printing record.</p> <p>Books and similar exhibits need not be reproduced in the printed record of a ca,se.</p> <p>The Supreme Court declined to allow a chancery cause to go to hearing without printing the entire record, there being no appearance by counsel on one side with whom to agree, subject to the court’s approval, as to- how much ought to be printed.</p> <p>Where a party to an accounting appeals from the decree, claiming that there is an error against him in an amount which he has himself previously reported as due to the other party, he has the burden of showing the error.</p> <p>Where money had been paid out by an officer of the University of Michigan for the benefit of the University in cases in which the Regents could have expressly authorized its expenditure, it was held that they might ratify the act and direct repayment with interest at any rate not exceeding ten per cent., and that where they had made such payment with full knowledge of the facts, their action was final and could not be disturbed. And where there was no fraud or concealment in the presentation to them of the account for interest, it must be conclusively presumed that they acted with full knowledge, as it was their duty to do. But the allowance of interest would not imply a contract to allow it thereafter.</p> <p>Interest cannot exceed seven per cent, in Michigan unless there is a written agreement for a higher rate.</p> <p>The Regents of the University of Michigan appointed a person to assist the director of the chemical laboratory in receiving and keeping account of moneys paid in to that department, and they paid said assistant from the University funds, which embraced, with other resources, the income of the laboratory. Held, that even though the director may have had power to appoint and discharge the assistant, yet if it was not made a part of his duty to keep strict watch and save the University from loss through him, he could not be held accountable for moneys received by him and not paid over, as the assistant was not his agent but was in the employ of the University and answerable to the Regents.</p> <p>A bill for an accounting, brought by the Regents of the University of Michigan against the director of the chemical laboratory and his assistant whose duty it was to pay over to the director the money which he received, though both were responsible to complainant, charged them with a deficit in their accounts, and it was stipulated that each was to be held accountable for so much money as came into his own hands. The .stipulation fixed, also, the amount of the entire deficit. Held, that proof that the assistant had received money would not alone establish liability against his superior, as it would not tend to show that the superior had received the money from the subordinate ; and the burden of proving that he had received it was upon the complainant, and, as between the defendants, it was on the subordinate.</p> <p>On a.bill for an accounting for a deficit the rules applicable to proof in civil cases must be observed, and the receipt of the money by the defendant may be shown by any competent testimony fairly tending to prove it, either alone or in connection with other circumstances.</p> <p>Whether books carelessly kept by assistants Who are not agents are admissible in evidence upon a bill for an accounting against their superior — Q.</p> <p>In a suit for an accounting, defendant was charged with the receipt of money as shown by his signature upon the stubs in certain stub-books. He testified that the signature was not in his handwriting. Held, that this put the stubs in issue as would an affidavit denying the execution of an instrument sued on.</p> <p>The acts, conduct and utterances of an accused party, if of the res gestee, are competent evidence in a civil case as bearing on his culpability.</p> <p>The Regents of the University of Michigan filed a bill against the director of the chemical laboratory and his assistant, an officer appointed by their authority, for an accounting for moneys received in that department and in which there was a deficit. The suit involved the question, as between the defendants, of the genuineness of the initial of the director, used in certain stub-books as a voucher to indicate that the assistant had accounted to him for moneys received. The director claimed that those initials were forged. So held, on appeal, upon comparison of the handwriting of both defendants, and especially of the director, which had changed somewhat, with that of the disputed vouchers ; and in the light, also, of expert testimony and, particularly, of the conduct of the assistant in admitting delinquencies in his accounts of moneys received, when the deficit was first called to his attention, and in borrowing money and mortgaging his property to make them good, and giving security to meet whatever deficits might be discovered.</p> <p>An effort to make a suspected person acknowledge a wrong already committed is not wrong if undue means, fraud, illegal compulsion or duress are not used.</p> <p>Where a defendant in a suit for an accounting denies the genuineness of part of the vouchers produced against him, but does not designate those which are spurious though he has an opportunity to do so, they must all be regarded as prima, facie valid in the absence of other evidence that they are not so.</p> <p>Where a party to an accounting acquiesces in the disallowance of any of his claims and does not complain of it in the appellate court, it may be assumed that he is satisfied with the decree upon them and does not desire to have it reviewed. But the court will also assume that every claim made by the appellant is in issue, and will examine all the evidence for anything that will tend to show whether it ought to be allowed.</p>

<p>Lost property — Finder's right to identification — Reward for its recovery.</p> <p>It is a question of fact and not of law whether the finder of lost property has given fair and reasonable opportunity for its identification before restoring it and whether the claimant should have been given an opportunity to inspect it in order to decide whether it belonged to him. The jury’s attention must be confined to the state of things preceding the beginning of suit.</p> <p>Tn an action against the finder of lost property for its conversion by refus- ■ ing to give it up, the fact that after suit was begun the finder learned that it really belonged to the claimant has no tendency to show that he had fair and reasonable evidence thereof before suit.</p> <p>A right of action against the finder of property for which a reward has been offered is not defeated by neglect to tender the reward.</p> <p>A finder of lost property has no lien upon it as finder after he knows to whom it belongs; but he has a lien upon it for whatever reward may be offered for its recovery.</p> <p>A reward for lost property is not waived by insisting on its identification or any legal advantage connected with the finding.</p>

<p>Contracts binding retiring partners — Orders for merchandise.</p> <p>A retiring partner is bound by all previous contracts made within the line of the business; but after the dissolution of the partnership he is not bound by any new contract made by his former partner.</p> <p>An order for goods does not amount to a contract binding the person who gives it until some act is done on the faith of it by the person to whom it is given, or until it is accepted; and if it is above $50 the acceptance, in Michigan, must be in writing.</p> <p>Where goods are ordered by one member of a firm, and the order has not been accepted, nor the goods shipped until after notice of its dissolution, and the shipment varies from the terms of the order, the retiring partner will not be bound by it.</p> <p>If the conditions of an order given by a firm are waived, after the dissolution of the partnership, by the remaining partner, it will not bind the retiring partner.</p>

<p>Malicious prosecution — Jurisdiction on appeal from a justice — General ad damnum clause.</p> <p>The jurisdiction conferred upon the recorder of Corunna is that of a justice of the peace (Act 265 of 1869), and he therefore cannot entertain an action for malicious prosecution. Act 214 of 1875.</p> <p>A general ad damnum clause at the end of a declaration in justice’s court, will apply to a count for assault and batter}', especially if the other-counts are invalid; and if there were any defect in making it general it would be within the statute of amendments.</p> <p>An appeal by the defendant in a justice’s court from a judgment in an-action which the justice had no right to entertain, does not give the-circuit court jurisdiction to render judgment for the plaintiff.</p>

<p>Error to Kalamazoo.</p> <p>Appeal from an adjudication of incompetency. Petitioners bring error.</p>

<p> Jurisdiction on appeal from justices courts. </p> <p>The Circuit Court obtains no jurisdiction by an appeal from a justice’s^ court, if taken after the statutory period of five days allowed for taking it</p>

<p>Railway companies — Fences.</p> <p>Act 198 of 1873 gives damages against a railway company for cattle killed by reason of the company’s negligence in not keeping up the fences along its track. Held tliatwheie the fences had been accidentally destroyed by fire after the track inspector had made his daily inspection, and the fact was not known until after the injury had been done, the company was not guilty of negligence.</p>

<p> Administrator's mortgage of estate to pay debts. </p> <p>An administrator’s mortgage given upon the estate to raise money to pay its debts, is invalid if the order allowing it and the proceedings thereon do not comply with Comp. L. § 4626, and specify the time for which it may run, and the rate per cent, at which it shall be given; and the good faith of the parties will not save it. Whether the mortgagee could be subrogated to the rights of a prior mortgagee of the same property, for the payment of whose mortgage the administrator was allowed to raise money by giving another mortgage — Q.</p>

<p>Replevin for mortgaged chattels taken on attachment — Return.</p> <p>A chattel mortgage, where possession is not given, is void as against the mortgager’s creditors, if not put on file in the proper office, even, though recorded elsewhere by mistake.</p> <p>An offer to buy up a claim does not estop one from disputing its validity. So held where creditors negotiated for achattel mortgage which was void as to them.</p> <p>Where a chattel mortgage is void as against a creditor levying attachment, it is not material that the mortgagee had taken possession before one of the attachments was levied.</p> <p>A mortgagee of chattels brought replevin against an attaching creditor, and sought to show that the demand in one of the attachment cases, which had passed into judgment, had been paid before judgment. Held,, that if there was no showing of collusion between the attachment creditor and the debtor, this would be an attempt to re-try the question involved in the attachment suit.</p> <p>"Where the indorsement on a writ of attachment shows that it was not levied subject to a mortgage lien, it cannot be contradicted in an action of replevin brought by the mortgagee against the attaching creditor.</p> <p>The question whether an officer has levied upon a complete title or only an encumbered interest is one of intent as to which the officer need make no statement beyond the indorsement on his writ, which is the evidence of his final action, whatever his intent may have been.</p> <p>An officer who levies subject to a mortgage can afterwards change the levy.</p>

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

<p>Error to Midland.</p> <p>Forcible Entry and Detainer. Defendant brings error.</p>

<p>Error to St. Joseph.</p> <p>Replevin. Plaintiff brings error.</p>

<p>Highway commissioners — Mandamus to enforce payment of bridge orders.</p> <p>Highway commissioners have no authority to involve the township in debt, at their discretion, for building bridges.</p> <p>Highway commissioners can only act when authorized ; there is no general presumption that they can bind their township by obligations which they may see fit to issue, and if, in a proceeding to enforce such obligations, there is no finding of their authority to issue them, it must be assumed that none existed.</p> <p>In mandamus proceedings to enforce the payment of money, as in any other, the claimant must make out his own case unless it is admitted expressly or by implication; the burden is'not on the respondent to show that the demand is illegal.</p> <p>The Supreme Court has plenary jurisdiction in mandamus, and will grant relief where a case is made out in part, even if it fails in other respects.</p>

<p>Error to Washtenaw.</p> <p>Motion to dismiss writ of error,</p> <p>Assumpsit on guardian’s bond. Defendant HincMey, impleaded as surety on the bond, brings error.</p>

<p>Deed void as against m’editors — Tend&r.</p> <p>Where a debtor, in anticipation of proceedings against him, made a deed to his brother, the evident purpose of which was to hamper the title, and for which a very small part of the consideration was paid, the deed was held to be invalid as against creditors.</p> <p>A mortgagee of land against which attachment proceedings have been started, is not without notice where his counsel, before advancing the money secured by the mortgage, rfecognized the attachment as a lien to be got rid of in order to clear the title, and caused money to be tendered for that purpose.</p> <p>A tender to satisfy a claim in litigation is not good if made in the street, without any computation or means of • computation that would • not require delay, and on the idea that the claim is in judgment when no judgment has been entered, and when no costs have been or could . regularly have been taxed.</p> <p>A mere offer to pay whatever shall be ascertained to be necessary to discharge a litigated demand, without taken any steps to find out, beyond preparing a receipt in blank purporting to discharge the judgment when, in fact, none has been entered, is no proper tender of payment.</p> <p>The effect of a tender made during suit or before judgment must always depend more or less on the views of the court and rarely affects anything but the liability for costs. It cannot discharge the debt until paid.</p> <p>Whether tender of an amount in litigation can discharge an attachment — Q. And if it could, it would not make valid a transfer of the property attached, if void as against the creditor, or prevent assailing it on execution, exeept as to intervening hona fide purchasers or encumbrancers.</p>

<p>Declarations injustice’s courts — Oonclusmeness of findings of fact.</p> <p>Recovery can be had under the common counts upon an agreement to pay for services in forwarding the sale of one’s land.</p> <p>Declarations in justices’ courts are to be liberally construed.</p> <p>Plaintiff has a right to have the evidence submitted to the jury on his theory of the case.</p>

<p>Construction of wills — Oral evidence — Allowance of counsel fees.</p> <p>A woman devised to lier husband the undivided half of certain descriptions of land, referred to as “containing 240 acres,” and she made the devise subject to a right reserved by her grantor to occupy one-half of the dwelling house thereon. She devised the other undivided half to her children. The descriptions were according to the government subdivisions, but embraced only 140 acres, which was only a part of 240 acres actually granted to her in one compact body, and no other disposition was made of the rest of this grant. The dwelling house was not upon the 140 acres devised. Held, that the testator’s evident intent was to devise the entire 240 acres.</p> <p>Oral evidence is not admissible to explain a testator’s intent except so far as it brings before the court sucb circumstances surrounding the making of the will as may be necessary to an understanding of the terms employed.</p> <p>The allowance of counsel fees, in proceedings to obtain the construction of a will, is for the probate court.</p>

<p> Sunday la/rgains a/re void and not open to ratification. </p> <p>A Sunday horse trade is void and cannot he ratified on week day; and if possession is given the horse can he reclaimed unless a new contract is made with mutual assent.</p>

<p> Absolute transfers mag be shown to be by way of seev/rity. </p> <p>Parol evidence is admissible to explain the true consideration for a contract and apply the instrument to the subject matter.</p> <p>One who has given a written assignment, absolute in form, of a particular payment described in a mortgage, and has also given the accompany, ing note, can nevertheless show by parol that the transfer .was not unqualified but was made as security for repayment of money borrowed from the transferee.</p> <p>The finding of a trial judge, sitting without a jury, is conclusive as to the witness’s credibility and the effect of his evidence.</p>

<p>Collateral questions — Begulwity of divorce proceedings — Affidavits for orders of publication, and of publication of notice.</p> <p>Where the record of a case is questioned collaterally, only such objections can be noticed as affect the jurisdiction to dispose of it.</p> <p>Where a wife, suing for a divorce, swears positively that her husband does not reside in this State but in a specified foreign locality, it is enough to support an order of publication.</p> <p>A divorce granted upon an order of publication, issued by a circuit court commissioner on an affidavit based upon information and belief, was sustained in a collateral proceeding involving the validity of a later marriage and the consequent right to property.</p> <p>It seems that the affidavit for an order of publication in divorce is sufficient if it tends to establish a foundation for the order, and if the officer to whom it is presented finds enough in it to satisfy his judgment; and his decision cannot be set aside, in a collateral proceeding, for defects in the proofs submitted to him therefor.</p> <p>Affidavits of the publication of orders for defendant’s appearance in a divorce proceeding are sufficient to give jurisdiction if they state positively the fact of publication, and if the affiant swears that he is employed in the office of the newspaper in which the order was published and knows well the facts stated in the affidavit. It is unimportant that he does not describe himself as clerk, if it appears that he is entrusted with the duty of making affidavits of publication.</p> <p>Proceedings after a decree of divorce do not touch the right to adjudicate and cannot be reviewed in a collateral proceeding.</p>

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

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

<p>Peweability of testamenta/ry grant — Passage of tiñe. '</p> <p>An instrument purporting to convey land but providing that it shall remain the grantor’s property during Ms life-time and go to the grantee on Ms death, is a mere devise, revocable at will, and passes no title; and the grantor’s promise to pay the grantee to reconvey the land is without any consideration.</p>

<p> Power of indefinite extension destroys negotiability </p> <p>A clause attached to a promissory note and providing that the payee or his assigns may indefinitely extend the time of payment, destroys its negotiability and makes it a simple contract.</p> <p>Where a promissory note has a clause appended giving the payee the power to extend the time of payment indefinitely, the note and the clause must be construed together.</p> <p>In an action between the original parties to a note the circumstances of its (issue are open to explanation.</p> <p>A proviso in a promissory note is not void unless it is illegal or nugatory; and if innocent it does not make the note illegal though it may destroy its negotiability.</p>

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

<p>Error to Bay.</p> <p>Debt on bond. Defendants bring error.</p>

<p> BecewersMp. </p> <p>A receiver cannot be appointed as a preliminary to filing a bill and beginning suit, and without any notice to parties interested in the property placed in his hands.</p>

<p>Error to Macomb.</p> <p>Case. Defendant brings error.</p>

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

<p>Appeal from Saginaw.</p> <p>Bill for accounting and reconveyance.</p>

<p>Liability fcrr rent — Oonsti'vetion of agreement.</p> <p>A three years’ lease of farm lands began in March, 1877, and the rent was to be paid annually, October 15. September 2, 1878, the parties terminated the lease, but it was agreed that the tenant might keep possession until he could harvest his crops; that he was to pay no rent from that date; and that this stipulation was not to affect the rent to become due in October. Held, that this did not bind him to pay the rent for the whole year, but only until September 2, the date of the stipulation.</p> <p>Rent is the consideration for occupancy, and there is no consideration for its payment when the enjoyment of the rented premises ceases.</p> <p>An action for use and occupation will not lie where no actual use exists or is bargained for.</p>

<p>Appeal from Kent.</p> <p>Foreclosure. Defendant Pbebe J. Hogadone appeals.</p>

<p> Claim by a husband against his wife’s estate. </p> <p>A husband assigned to his wife a judgment recovered by him, but after her death he filed a claim against her estate for the money received on it as for money received to his use. It did not appear that she had received it on any trust in his favor, or that she owed him anything. Held, that in respect to this transaction the husband and wife were one in law unless he gave her the money or paid it to her on a part or concurrent consideration. If they were one, an asswnvpit could not arise between them; if the money were' given or paid to her it was hers, unconditionally and there was nothing to support an assumpsit from the wife to the husband.</p>

<p>Appeal from Menominee.</p> <p>Bill to vacate decree or for rebearing. Tbe bill was stricken from tbe files in tbe lower court. Complainant appeals.</p>

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

<p>Trepass for cutting and carrying arnay wheat — Bmdence under general issue — Defendant’s intent.</p> <p>Where trespass for cutting and carrying away wheat is brought by an assignee of the party injured thereby, a plea to the general issue puts every part of the declaration in issue and denies not only the taking but the plaintiff’s ownership at the time of the alleged trespass.</p> <p>A tenant who had sown a crop which would not ripen until after the expiration of his lease, gave a chattel mortgage on it to indemnify a surety upon the bond in a replevin suit brought by him against his landlord. The surety, however, verbally assigned his interest in the mortgage to S. on condition that S. should protect him. The landlord had judgment in the replevin suit and also in his action on the bond, which latter was paid in the tenant’s behalf by E. to whom the tenant afterwards assigned his right to the wheat. The landlord, however, had previously sold it to S. who had cut and removed it, for which E. sued him in trespass. Held, that under the plea of the general issue S, could show the transfer to him of the mortgage interest held by the surety on the replevin bond, and could introduce the mortgage itself; the evidence bore on the tenant’s title to the wheat or the fact of his possession and on the question whether he had not abandoned it to the landlord.</p> <p>The mere intent of a defendant in trespass is not material if his conduct was not actionable.</p>

<p>Appeal from St. Clair.</p> <p>Foreclosure. Defendants appeal.</p>

<p>Error to St. Clair.</p> <p>Ejectment. Plaintiffs bring error.</p>

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

<p>Mandamus — Preliminan'y application to respondent.</p> <p>Mandamus to set aside an order of removal to a federal court was denied without looking into the merits where the record did not show that any application had been made to the respondent to vacate the order.</p>

<p>Appeal from Alpena.</p> <p>Bill to set aside a chattel mortgage.</p>

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

<p> Challenge to the array. </p> <p>A challenge to the array in the Superior Bourt of Detroit was properly overruled where interposed on the grounds (1) that the judge was not present when the names of the jurors were deposited in the jury box and those of former jurors removed; (2) that he did not determine the number to he drawn for the term, but that twenty-four were drawn and he was not present at the drawing; (8) that they were drawn by the sheriff and the minute was kept by the clerk; (4) that the affidavit accompanying the list of 300 jurors filed in the clerk’s office did not show in detail the proceedings taken to select the list, but only alleged that as affiant verily believed it was done in accordance with the statute. So held by equal division of the court.</p>

<p>Appeal from Wayne.</p> <p>Injunction to restrain sale for taxes.</p>

<p>Bill of particulars— Variance from evidence — Amendments.</p> <p>Where a bill of particulars gives the dates of charges, a due-bill of a later date and for a less amount than the aggregate of items, should not be rejected for variance if it tends to prove an indebtedness existing at its date.</p> <p>Single items of evidence cannot be rejected for failing to establish the whole case, but must be received if they contribute to that end; and their sufficiency in connection with the other evidence will be determined on a review of the whole when the case is closed.</p> <p>Where evidence is objected to solely for a formal variance from the bill of particulars, it is better to permit an amendment of the bill than reject the evidence, unless there is reason to believe the defendant will be prejudiced.</p>

<p>Measure of damages — Oomtruelion of agreement.</p> <p>The measure of damages for failure to fulfill a contract to furnish saw-logs cannot be fixed by the loss occasioned to the other party from his own consequent failure to supply lumber therefrom under a contract subsequently made with other persons, the first contract not having been made on the strength of'the second.</p> <p>Damages for non-performance of a contract of supply are such as result directly from the default and may be supposed to have been in contemplation of the parties, but are not such as would be measured only by the possibilities of whatever scheme may have been based on the contract by the party to whom performance was due.</p> <p>In a contract by which one party was to furnish saw-logs to the other, the latter agreed that the former' should not pay more than a fixed amount stumpage on certain lands. Held that this implied that the parties contemplated that the logs were to be obtained from those lands, and that the party who assumed to fix the price of the stump-age claimed the right to dispose of it' and thereby assured to the other party the right to cut on those lands.</p> <p>Where a special agreement by one of the parties to a contract is obscure it may properly be interpreted most strongly against the party making it.</p>

<p>Organization of townships — Collection of taxes.</p> <p>A township is not completely organized for the assessment, levy and collection of taxes until the election of its proper officers; and until then the township from which it is set off may levy and collect the taxes.</p> <p>Assumpsit on the common counts will not lie at the suit of a township to recover from the township from which it has been set off the amount of school and township taxes collected by the latter under an assessment made upon the territory of the former before its township organization was perfected.</p>

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

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

<p>Error to Kalamazoo.</p> <p>Case. Defendant brings error.</p>

<p>Appeal from Wayne.</p> <p>Judgment creditor’s bill. Defendant appeals.</p>

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

<p> Jurisdiction to license administrator's sale. </p> <p>Creditors of a decedent’s estate are not cut off from enforcing their claims so long as no commissioners are appointed upon the estate and no time or place appointed for the allowance of claims.</p> <p>Where a widow, after being made executrix, remarries and an administrator de bonis non is appointed, the interim between her disqualification and the new appointment may be added to the four years and six months allowed by law for the payment of claims against the estate.</p> <p>A probate court does not lose jurisdiction to license the sale of real estate for the payment of debts if the order is made within the period to, which the time may properly be extended, even if the extension is not actually made.</p> <p>It seems that a probate license to sell real estate for the payment of debts will not necessarily be held invalid for having been granted after the period allowed therefor by statute, when inquired into collaterally, as in an action of ejectment against the purchaser.</p>

<p>Railroad land-grants — Passage of title.</p> <p>Congress, by an Act passed June 3, 1856, granted certain lands to tbe State of Michigan to be used solely in aid of tbe construction of railroads. Tbe State, by Act 136 of 1857, set them apart for tbe benefit of certain designated roads on condition that tbe beneficiaries should accept them subject to tbe terms of the Act. Held, in a case in which tbe acceptance was qualified, that tbe company acquired no title, and that a bill would not lie to quiet a title to tbe lands obtained by a levy of execution against tbe beneficiary intended by tbe Statute.</p> <p>Common law rules cannot override statutes.</p> <p>Tbe State, while acting under tbe Constitution, can impose its own conditions on its own grants.</p> <p>Railroad companies which accepted tbe congressional grant of public lands under the provisions of Act 136 of 1857, acquired rights which could not be destroyed except by their own neglect. .</p>

<p> Seem'd of execution sale as notice to subsequent purchaser. </p> <p>Putting the sheriff’s certificate of a sale on execution upon record is constructive notice to subsequent purchasers: Act 123 of 1875.</p> <p>One who bids in lands under an execution therefor becomes a “purchaser ” within the meaning of the registry laws even though he does not yet receive the sheriff’s deed; and if he records his certificate of sale he is entitled to protection against subsequent purchasers until he can receive his deed.</p> <p>Abandonment of a sale on execution because of an error in the notice therefor does not necessarily invalidate a subsequent sale or notice if it does not appear that the execution debtor has been prejudiced.</p> <p>The issue of two executions at once upon the same judgment to the sheriffs of different counties is irregular; but in an action of ejectment for premises sold under one of them, the other not being returned, the sale will not necessarily be held void, nor will the officer’s omission to return a want of personal property be fatal thereto, especially if there is no showing that there was any.</p> <p>A sheriff serving an execution is not bound to search for personal property beyond his own bailiwick.</p> <p>The amount for which property has been sold may be put in evidence as tending to show its value.</p> <p>Where an execution purchaser of land has recorded the certificate of sale in advance of any conveyance from the debtor to other persons, he is presumed, until the contrary appears, to be entitled to recover in an action of ejectment against the latter, who have the burden of proving themselves to be or to derive title from bona fide purchasers.</p>

<p>Appeals from St.Clair.</p> <p>Bills to clear title. Defendant appeals.</p>

<p>Jurisdiction by value — Replevin for fox-stein.</p> <p>Replevin for a fox-skin worth a dollar and a half will not lie in the circuit court.</p>

<p>Salaries — Implied assent — Beeeipt with protest.</p> <p>A probate judge’s silent acceptance of bis salary as reduced by tbe Board of Supervisors from tbe amount previously allowed bim, is an implied assent to tbeir fixing it at tbe lower rate, and precludes bim from claiming more.</p> <p>A protest is ineffective unless made to tbe body having power to act upon tbe subject matter. If a salaried officer protests that tbe amount of salary allowed bim is less than he is entitled to, it is of no effect to make tbe protest to tbe functionary entrusted with tbe mere duty of paying bim if tbe latter has no part in fixing tbe salary, and is under no obligation to report tbe protest to the body which fixes it.</p>

<p>Sale — Misrepresentation of quantity — Recoupment.</p> <p>The right of a purchaser of land, in an action against him for the purchase price, to recoup the excess in price due to the vendor’s misrepresentation of the extent of the property, is the same whether the misrepresentation be willful or innocent.</p> <p>Where the vendor of land, by misrepresenting its extent induces the purchaser to incur a liability for land which the vendor is unable to convey, the effect of the transaction, in the contemplation of the law, is a fraud upon the purchaser, even though both parties acted in good faith.</p> <p>A purchaser’s right on being sued by the vendor, to recoup damages for the latter’s misrepresentation in a sale including both real and personal property, is not affected by the fact that the misrepresentation referred to only one class of property, if the transaction was an entirety, and the consideration was not apportioned.</p>

<p>Libel — Bad moral character — privileged communication.</p> <p>A communication, representing that a certain person was of bad moral character, and wholly unfit to teach and have the care of a district school, was made to a township superintendent, by persons interested in a particular school within his jurisdiction, for the sole purpose of preventing the issue to the person so charged, of a license to teach the school. Held, that it was a privileged communication, and abundantly justified by proof that he was a habitual blasphemer and profane person, and an open violator of the Sabbath.</p> <p>A charge of bad moral character, if made generally, is not fully justified by proof of profanity and Sabbath-breaking.</p> <p>A person is responsible for such meaning of his language as is most natural, and is actually by his own fault, accepted under the particular circumstances. But there is no responsibility for any other meaning than that which is shown to have been intended and actually understood.</p> <p>An action for libel will not lie on a communication relating to personal character, if made in good faith and for an honest purpose by persons concerned, and to the proper person. Nor will it lie when such a communication is untrue, if it is not maliciously made.</p>

<p>Error to .Wexford.</p> <p>Assault and battery. Respondent brings error.</p>

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

<p>Appeal from Washtenaw.</p> <p>Injunction. Bill dismissed.</p>

<p>Equity pleadings — Bill to compel assignment of lease — Pa/rties.</p> <p>Two of the three directors of a corporation allowed a mining lease thereto to be forfeited, and then took another for their own benefit. Two of the stockholders filed a bill against the two directors and the corporation to compel the directors to assign the lease to the corporation.</p> <p>Eeld, on demurrer that the remaining stockholders should have been brought in as complainants and the lessor as a joint defendant.</p> <p>Where a bill is filed by stockholders to compel the assignment to the corporation of a lease which had never belonged to it, all the stockholders should be made complainants because the corporation may elect to waive its right to the lease as well as to demand it, and the election cannot be made unless all the stockholders are joined.</p> <p>Where a bill is filed by stockholders for the benefit of the corporation the bill should state any reasons that exist for omitting to join all the stockholders as complainants in the bill.</p> <p>A bill to compel lessees to assign their lease should bring in the lessor as joint defendant as it is to be presumed that the landlord is interested in being heard as to who shall be his tenant.</p>

<p>Municipal corporations — Payment of school district debts after other districts have been made up from its territory.</p> <p>Where a school-district has been subdivided and other districts set off, the debts of the original district cannot be parcelled out among all by a proceeding in the courts so as to give creditors a remedy against any but the1 original debtors: Maltz v. Board of Education 41 Mich. 547.</p> <p>A municipal corporation remains liable upon a debt wbicb it bas created, notwithstanding a subsequent change in its corporate limits. If contribution is required from territory set ofE from it, tbe corporation must obtain it, and not tbe creditors, unless otherwise provided.</p> <p>Mandamus lies to compel a school-district to pay orders issued by it, even though the district has since been subdivided, where statutory provision for distributing the original liability has not been carried out.</p> <p>It is suggested that statutes passed to enable the debt of a municipal corporation to be distributed on the subdivision of the corporation, should provide that a failure to assign its share to each subdivision at the time appointed by the statute, shall not impair the right to do so afterward, and that full provision should be made for that purpose; if this is not done further legislation may be required.</p> <p>Interest upon orders issued by a school-district is denied on granting a mandamus to compel their payment if no authority has been given to impose it.</p> <p>Costs on granting a mandamus to compel the payment of orders issued by a school-district were denied where the case involved new questions.</p>

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

<p>Appeal from Superior Court of Detroit.</p> <p>Bill of interpleader. Defendant Atkinson appeals.</p>

<p> Accounting for bans made by a mid, corporation. </p> <p>A corporation organized under a void law cannot enforce a mortgage made to it; but if not organized for an unlawful purpose a receiver for it can demand in equity an accounting for the debt purporting to be secured thereby. Such accounting should be with interest after allowing all payments made upon the loan.</p> <p>The Supreme Court may permit a bill of foreclosure, filed to enforce void securities, to be so amended, after the hearing, as to ask for an accounting for the debt.</p> <p>A borrower, after making payments to a receiver appointed for his creditor in proceedings to which he was not a party, cannot afterwards, in proceedings against himself for the enforcement of his debt, question the validity of the appointment.</p>

<p> Administrator cannot recover consideration for deed to insane decedent. </p> <p>A deed left unconditionally witli a third person for the use of a grantee who is not under guardianship, and received by the grantee under circumstances indicating acceptance, is sufficiently delivered, and conveys title even although the grantee be of unsound mind.</p> <p>Transactions that are neither void nor necessarily binding must stand until they are regularly assailed by some one whose position or interests warrant him in assailing them.</p> <p>An administrator cannot waive a conveyance made to his decedent, either directly or indirectly; and if it is not avoided by the heirs who have the title by descent, he cannot sue the grantor to recover the consideration as if the transaction had been void. And if any of the heirs have reconveyed their interest to the grantor, the administrator is not concerned with the fairness of the latter’s dealings towards them, but it is for the heirs to seek redress on their own complaint.</p> <p>Whether an attempt to recovór the consideration paid by a decedent for a conveyance of land does not demand a resort to equity where all persons interested may be made parties and all rights and liabilities safely adjusted — Q.</p>

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

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

<p>Appeal from Washtenaw.</p> <p>Bill to reform deed. Defendant appeals.</p>

<p>Appeal from "Wayne.</p> <p>Bill to declare a deed to bave been given as security. Defendant appeals.</p>

<p> Mandamus to compel service of vsarrcmt for perjury. </p> <p>In mandamus cases the party interested is permitted to he heard in resisting the application.</p> <p>Prosecuting attorneys have no discretion allowed them to stop all criminal prosecutions instituted before justices of the peace ; but a justice ought seldom to hold a respondent to bail, or convict him on trial, when the prosecuting attorney advises him in good faith that no crime is made out.</p> <p>A. justice of the peace may properly take the advice of the prosecuting attorney before issuing a warrant, and refuse it even when the accuser can make a prima facie showing’of a technical offense, if the prosecuting attorney thinks that the ease would fail on full hearing, or that the criminal intent was so far wanting that the cause of justice would not be advanced by the prosecution.</p> <p>A prosecuting attorney can in nowise control the action of the sheriff when a writ has been placed for execution in the latter’s hands ; the sheriff may take his advice if doubtful as to his duty ; but is not relieved from responsibility if he fails in his duty in following it.</p> <p>A wilfully false oath in a judicial proceeding is not perjury, even if it states material facts, unless the oath itself is material to the proceeding.</p> <p>The answer of a corporation to a bill in equity is not required to be sworn to, but is attested by the corporate seal. If a discovery is sought, individual corporators may be sworn, but they must be named as defendants in the bill.</p> <p>Where a bill in equity, not seeking discovery, is filed against a corporation, the general manager, if not himself made a defendant, need not swear to the answer ; and if he does so in a case where his oath could not. affect the issue or strengthen the answer, his oath, if false, will not sustain a complaint for perjury.</p> <p>A person arrested on a defective complaint issued by a justice, is entitled to his discharge ; and the chance that it may be supplemented by facts not yet shown to the justice, will not justify a mandamus compelling the sheriff to serve it where it will be necessary to take the respondent several hundred miles for his examination.</p>

<p>Appeal from Waslitenaw.</p> <p>Bill in aid of execution. Defendant appeals.</p>

<p>Appeal from Marquette.</p> <p>Injunction to restrain tax sale. Dismissed on demurrer, but without prejudice.</p>

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

<p>Extension of ditch, — Estoppel by acquiescence.</p> <p>Objections to calling a jury in proceedings to extend a ditch are rendered immaterial by the abandonment of the purpose to extend it across the lands of those who refuse to release damages.</p> <p>One who has consented to the extension of a ditch which does not cross his land, and has promised to dig his part and tried to let a job therefor, cannot, after partial construction thereof and consequent benefit to himself, complain of being assessed for it.</p>

<p>Logging contract — Scale—Expense of scaling— Usage — Dwress.</p> <p>Where a lumberman, in contracting with his jobber for getting out logs, agrees to divide the expense of scaling them and the scaler stipulates that the jobber shall board him, the cost of boarding him is an item of the expense to be divided, and the lumberman is liable for half of it and cannot show that it is the custom of jobbers to board their scalers at their own expense. But if the scaler does not stipulate for his board the lumberman is not liable^ and the transaction is between the jobber and scaler ajone.</p> <p>A contract for getting out logs to be scaled “in accordance with the standard rules or scales in general use” on the stream, is governed by . the scale in use at the time of scaling.</p> <p>Duress exists where one is induced, by another’s unlawful act, to make a contract or perform some act under circumstances which prevent his exercising free will. It is either of the person or the goods of the party constrained.</p> <p>Duress of the person is by imprisonment, threats or an exhibition of apparently irresistible force.</p> <p>Duress of goods may exist when one is compelled to submit to an illegal exaction in order to obtain them from one who has them but refuses to surrender them unless the exaction is endured.</p> <p>There is no duress where the act threatened is nothing which the party has not a legal right to perform.</p> <p>Refusal, on demand, to pay a debt that is due, thereby forcing the creditor to receipt in full for only a partial payment, does not constitute duress if the debtor has done nothing unlawful to cause the financial embarassment which compelled him to submit to the extortion.</p> <p>A receipt obtained by improper means and assuming to discharge any indebtedness not honestly in dispute between the parties and known by the debtor to be owing, is to that extent without consideration and ineffectual.</p>

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

Assumpsit for a claim of contribution under the doctrine of general average. The action was brought by Coyne, as assignee of the owner of the vessel. Backus had a lot of lumber on board, part of which had been thrown off to keep the vessel from foundering.

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

<p>General assignment for an insolvent corporation — Assignments executed in other States.</p> <p>If an assignment for the benefit of creditors contains a power to sell on credit, it is void as against the garnishment of a judgment recovered by the insolvent, though it may be valid as against the assignor and also as regards creditors and others not seeking to avoid it.</p> <p>An assignment for the benefit of creditors executed in another State but with express reference to Michigan and intended to have its first operation in Michigan, is to be treated, in passing upon its validity, as if originally executed in Michigan.</p> <p>A general assignment by an insolvent corporation was executed by the directors, and next day, by their direction, the president executed another, incorporating the first, in another State where the property was. The assignees accepted and acted upon the trust and no attempt was made to set it aside, but more than a year later the president was directed, at an informal meeting of directors, to execute another assignment, the former being supposed defective. Reid that the last assignment could not be sustained, not being made by direct sanction of the corporation, and the power first delegated to the president being insufficient as it was already exhausted.</p> <p>Whether the president of a corporation has authority to execute a general assignment for the benefit of its creditors. — Q.</p>

<p>Established fact — Passage of title — Modification of contracts — Right of sale— Presumptions of title.</p> <p>Where the testimony on both sides agrees in establishing a right in a party to sell property in dispute, it should not be left to the jury as an open question.</p> <p>An agreement by parties for whom lumber is to be got out, to advance money and supplies to an amount stipulated, to the contractors, gives title to the supplies when furnished, and they belong to the contractors unless that contract is modified to the contrary.</p> <p>A contract is not affected by a subsequent agreement which does not refer to it, and the provisions of which are not so framed as to furnish means for connecting them.</p> <p>An understanding had subsequently with one of two joint contractors that certain property should not pass until paid for, without evidence of the price and terms of payment, and without any evidence of its connection with the lumber contract is not proven in such a manner that it can be applied as a modification of that contract and must be treated as a separate understanding.</p> <p>Where authority is given to a person to sell property for the purpose of raising means to pay debts, the vendee cannot be required to see that the money is properly applied.</p> <p>Abstract presumptions as to title from possession become inapplicable when evidence is introduced of the actual title.</p>

<p>Agreement to pay wages of another’s workmen — Authority to imyrease wages.</p> <p>A firm of lumbermea who had made a logging contract wrote to the jobber with whom it was made that he might say to his men and show them “that we here agree to pay every man in your employ to the last dollar that may be due him, that stays by you until you put in your logs.” Held, that this was a promise made directly to the employees; that the firm made the jobber their agent to bring it to their notice, and that any of the workmen who accepted its terms by serving, unless sooner discharged, until the logs were put in, could maintain an action upon it against tlie firm for so much of their wages as had fallen due before the date of the letter as well as for what fell due after. And after its date the jobber could increase the pay of the workmen, and represented the firm for that purpose.</p>

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

<p>Replevin — ¡Plaintiff’s title — Credibility of witness.</p> <p>Execution was levied on an express package of money sent by the judgment debtor to an agent of his firm to repay advances made by the agent in the interest of his principals. The agent brought replevin against the sheriff. Séld (1) that as between these parties the question of defendant’s right to seize money in the hands of the express company was immaterial; (2) that if the money was mutually meant as payment, plaintiff could recover, but if it was meant to be used by the agent in the principal’s business, he could not; (3) that defendant was not concluded by the concurrent testimony of the consignor and the consignee that it was a payment, but was at liberty to show the contrary if he could. Nor was the jury bound by the plaintiff’s version.</p> <p>It is tbe jury’s duty to judge of tbe credibility of witnesses as well as to form tbeir beliefs from tbe facts and circumstances shown.</p> <p>In replevin it is competent to disprove plaintiff’s title to tbe goods, and one way to do this is to show that some one else owns them.</p> <p>A plaintiff in replevin cannot be allowed to prevail upon a ground which he has virtually repudiated by resorting to that form of action, as by relying on his right as consignee.</p> <p>The wisdom of a verdict is not for the appellate court to consider.</p>

<p>Validity of chattel mortgage — Belay to other creditors.</p> <p>Chattel mortgage security is not invalidated by the mere fact that the creditor knows the debtor is in failing circumstances and that the intended effect of giving the security will be to delay or defeat other creditors in the collection of their dues.</p> <p>Where a chattel mortgage security largely exceeds the debt, the fact may be considered as tending to show that the creditor’s intention, in taking it, is not in good faith to secure himself, but to hinder, delay or defraud other creditors.</p>

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

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

<p>Private alleys — assessment of benefits.</p> <p>Act 201 of 1877 is of doubtful constitutionality in that while its title provides only for taking private property for the public use and benefit, and for the opening of highways, streets and alleys, by the cities and villages of this State, the act itself also authorizes the opening of private roads and alleys. The title would have been sufficient, however, for alleys for the mixed use of the public and private individuals.</p> <p>Whether part of the expense of opening a private road can be assessed in the shape of benefits upon the property taken therefor, when the owners have not petitioned for the road, and do not need it — Q.</p> <p>Whether persons petitioning for a private road through the private property of others who do not desire it, should not pay the entire expense of opening it — Q.</p>

<p> Presumption of payment from lapse of time. </p> <p>Payment of a mortgage debt is not conclusively presumed from the lapse of many years, but there must be decisive proof that it is an existing lien to warrant a decree of foreclosure</p>

<p>Poww to direst a verdict — Assignee’s right to benefit from estoppel — Assignment of the use of premises — Bent—Absence of seal — Notice from possession — Collection of rents under a mortgage.</p> <p>A trial judge can direct a verdict for defendant when the plaintiff offers no evidence to establish a necessary part of his case.</p> <p>The power to direct a verdict for defendant on counsel’s presentation of plaintiff's case must be cautiously exercised; and if the case as stated is sufficient except on some particular point, the judge should always direct attention to the defect so that the omission may be supplied if accidental.</p> <p>An assignee of property rights may have the benefit of an estoppel raised for their protection.</p> <p>An assignment by a wife to her husband'of “all the use” of certain premises leased to other persons, but held in her name, “for his use and benefit,” is not specific enough to give him the right to rents under existing leases.</p> <p>Although a deed is not void for want of a seal (Comp. L., § 6194) the absence of a seal may be significant in determining whether or not an instrument was meant as a conveyance.</p> <p>B and S held mortgages on certain rented premises already heavily encumbered. S obtained an assignment of B’s mortgage, and in order that his own might not be merged, procured a deed of the premises to be made to his wife, intending to collect the rents until a foreclosure of prior mortgages. His wife assigned to him “all the use of ” the premises ‘ ‘ for his use and benefit. ” B, who understood these arrangements, meanwhile procured assignments of the leases and collected the rents himself in advance. S sued him for money had and received to plaintiff’s use. Held, that an "instruction to find for defendant did not prejudice the plaintiff whose right of action arose under the assignment from his wife, and as she did not hold the leases, her right to collect the rents, if she had that right, rested on her ownership of the equity of redemption and on whatever estoppel may have arisen against B; but the word “use” in her assignment was too uncertain to cover rents under leases which she did not hold.</p> <p>B collected in advance rents which he knew S intended to collect, and S sued him for money had and received to plaintiff’s use. Both were mortgagees of the rented property. Held, that defendant was entitled to an instruction that plaintiff’s knowledge of the actual possession by tenants was notice enough to exclude any benefit from the defendant’s neglect to inform plaintiff of the advance payment.</p>

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

<p>Foreclosure — Lapse of time — Bights of subsequent purchasers — Evidence of fictitious date — Variance—Mortgage for indemnity — Condition and consideration.</p> <p>The lapse of less than twenty years before filing the bill does not bar the foreclosure of a mortgage that has been given either for indemnity or for payment.</p> <p>Where a foreclosure bill is filed against subsequent purchasers from a grantee whose deed was not recorded until after the mortgage, complainant is not concerned with the good faith of their grantor and need not investigate the merits of subsequent interests.</p> <p>The holder of a mortgage dated and recorded before a deed of the same property is entitled to treat all subsequent rights as subordinate; and on a bill of foreclosure such rights need not be litigated.</p> <p>The purpose of a mortgage is found in its condition and not in the formal consideration set out in its introductory part.</p> <p>Where a mortgage is given to secure the sureties on an official bond, it is immaterial that a bill to foreclose it does not correctly state the date of the officer’s appointment, if it correctly recites the mortgage and the breach, and the testimony makes out full ground for suit.</p> <p>An exact similarity in the inks used in executing two different instruments dated differently, was treated, in connection with other suspicious facts, as tending to indicate that they were executed at the same time.</p> <p>The only constructive record of a deed is the entry required by Comp. L. § 4227 to show the date at which it was received and its order.</p>

<p>Certiorari to A. T. Call, justice of the peace.</p>