Volume 46 — Michigan Reports

<p>Appeal from Monroe.</p> <p>Bill for injunction. Complainant appeals.</p>

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

<p> Settlement of ease after resignation of tiidl judge. </p> <p>Mandamus to settle a case for review will not issue to a judge wlio Las resigned since filing Lis answer to tLe order to sLow cause. Relief sLould Le asked from Lis successor.</p>

Debt on bond. Sarah M. Monroe was assignee of a replevin bond to Jane Sterling, upon which Standish & Freeman were sureties for Heintzman, the plaintiff in replevin.

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

<p>Joint insurance — Description—Title—Inswance by agents.</p> <p>k fire insurance company, on being sued for a loss, cannot defend on the ground tbat the risk was increased by a neighboring dry-house which was not described in the application for insurance, where, in fact, the proof of loss showed its position, and the notice of refusal to pay treated it as included in the policy, but not properly heated, and did not rely upon undue concealment of its proximity.</p> <p>k person applying for insurance on property is not required by law to explain the exact state of the title nor the precise nature of his interest in it, if he is not distinctly required to do so by the company.</p> <p>The custodians of property, such as factors, agents, or consignees, can insure it for the benefit of present owners or notwithstanding changes of ownership.</p> <p>An insurance policy may be taken jointly to secure property owned in severalty.</p> <p>A policy of insurance on property is good for all the owners for whom it is made though they have several as well as joint interests, and when ' it all belongs to the parties insured it makes no necessary difference to the insurer how their interests are apportioned.</p> <p>The Supreme Court cannot on error pass upon a question of fact not submitted to the jury, and not admitted by the opposite party.</p>

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

<p> Right of hom'd of supermen's to reduce salm'y of prosemtmg attorney. </p> <p>Comp. L., § 585 empowered boards of supervisors to fix the compensation of the prosecuting attorney from time to time. Act 154 of 1878’ provided that annual salaries should be fixed by the board on or before the 81st of October, before the officers’ terms began, and should not be changed during the term. Held, that this would not prevent a board which had fixed a salary before Act 154 was passed, from changing it for the second year of the prosecuting attorney’s, term. Such a construction does not make the act retrospective.</p> <p>The act of a board of supervisors in fixing the salary of a prosecuting attorney does not constitute a contract between the latter and the county; and where the Constitution does not prevent, the legislature can authorize the board to change the salary so far as it has not already been earned, even though a part of the official duties are duties to the state.</p>

<p>Error to Tan. Burén.</p> <p>AssuMPsrr. Defendant brings error.</p>

<p>Garnishment — Defective affidavit — Dismissal of proceeding.</p> <p>Where proceedings in garnishment are based upon an affidavit that is jurisdictionally defective, but the garnishee appears and discloses assigned claims in which he has no personal interest, it is within the court’s discretion to dismiss the proceedings on motion made by the garnishee; before judgment is entered in the principal case, especially if the affidavit is not amended after notice to dismiss, and the garnishee’s conduct has not caused prejudice.</p> <p>An affidavit for a writ of garnishment is fatally defective if it does not show the nature of the contract by which the principal defendant is bound or identify it with the cause of action in suit.</p> <p>A garnishee who has only disclosed claims of creditors held under assignment wherein he has no personal interest, can be held only upon the trial of an issue, which is not ripe for trial before judgment in the principal case.</p>

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

<p>Appeal from Washtenaw.</p> <p>Bill to obtain release of deeds. Dismissed on demurrer. Complainant appeals.</p>

<p>Special appeal — Justice’s return — ■ Wairer of defects by going to trial — Affidavit for arrest for trespass on lands.</p> <p>■On. special appeal from a justice errors will not be reviewed that do not involve some decision, either express or implied in the exercise of jurisdiction. Comp. L. § 5482.</p> <p>A justice’s return to a special appeal is assumed to contain all that took place before him; if defective, a farther return should be required, and if a party goes to hearing upon it without objection, he is presumed to liave none.</p> <p>One who joins issue, and goes to hearing on the merits, is generally understood to waive objections to the process which he does not distinctly make known.</p> <p>A person arrested on justice’s warrant, for trespass on land, made ne objection to the sufficiency of the affidavit on which the warrant was issued, nor to the regularity of his arrest, but pleaded the general issue with notice that the land was his own freehold, and went to trial. JBrM, that he could not, on special appeal, object for the first time to the sufficiency of the affidavit, even though no right of arrest could be founded on it.</p> <p>The fact that an affidavit for the arrest of a trespasser on land is defective, does not affect the issue on the merits.</p> <p>An affidavit for the arrest of a trespasser, does not state the necessary facts if it is made by an agent and merely sets forth that his prin- ■ cipal has a good cause of action, as deponent verily believes, against defendant, against whom he applies for process of warrant in behalf of his principal for trespassing on the latter’s lands.</p>

<p>Error to Muskegon.</p> <p>Assumpsit on common and special counts. Plaintiff' brings error.</p>

<p>Evidence of value — Damages for removing timber.</p> <p>Witnesses as to value can base their opinions on actual sales of which they have knowledge, but can hardly be cross-examined as to what they have offered to sell similar property for.</p> <p>In an action for trespass qua/re clausum for entering land and cutting timber it is correct to charge that if the value of the timber cut covered the damage thereby done the land, that should be the basis of the verdict, but if not, it should be the damage done the land by the cutting and removal of the timber.</p> <p>Where a person cuts timber in good faith, believing that he has a right to, the measure of damages is the difference between the values of the land with the timber standing, and with the timber removed; or it is the amount of injury caused by defendant’s going on the land and cutting and removing the timber as a continuous act. And the increased value of the trees, caused by defendant in converting them into logs, should not be included.</p>

<p>Trial — Prejudicing ¡wry— Tacit allowance of irregularities.</p> <p>It is error to permit tbe charge and verdict in an action of trover to be read in the hearing of the jury on the trial of an action of replevin between the same parties as bearing on the subject matter.</p> <p>The omission to rule expressly upon objections to injurious irregularities committed at a trial, will not protect them from review; the judge’s silence may be construed as allowing them against objection.</p>

<p>Guardian,’s sale toithout ward’s authority — claim invalid as to minor heirs— . Statutes — time of taking effect — Costs on reducing decrees.</p> <p>It is fraud in law, whatever the intent, for a guardian to petition in a ward’s name, without the latter’s authority,'for leave to sell lands for the payment of claims against the estate of the ward’s ancestor; and to include an invalid claim; and to represent the sale, when made, as a cash sale, when no cash is paid.</p> <p>Comp. L. § 4887, providing for the termination of guardianship by the marriage of a female ward, was amended by Act 2 of 1877, which provided that the marriage should not affect guardianship so far as property was concerned. Held, that as a law does not take effect until ninety days after the close of the legislative session unless otherwise provided, the amendment did not apply to a case where the ward was married just before the Act passed.</p> <p>A personal claim that has not been allowed against an estate is not valid as against infant heirs.</p> <p>Costs may be allowed complainant on appeal, even though the decree is modified in favor of the appellant, if the latter’s defence shows no willingness to do justice.</p>

<p>Bill to dear title — Possession neaessa/ry.</p> <p>A bill to clear title cannot be maintained if at the time of filing it the complainant is not in actual possession of the premises, and especially if a suit at law is pending to settle the right of possession.</p>

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

<p> Basement for flowage established by prescription. </p> <p>An easement whereby water collecting upon land must be allowed to find an outlet, even though it overflows adjacent land, may be acquired by prescription; and evidence is admissible as to the length of time it has so overflowed without objection from the adjacent proprietor.</p>

<p>' Oral promise to devise real estate.</p> <p>An oral agreement to devise property to a specified person is revocable during the testator’s lifetime, and is not in itself valid if it covers real estate. And -where the devise is not in accordance .with the agreement a payment of money in consideration of such promise is without consideration, and the money may be recovered back by the one who made the payment or by his personal representative.</p>

<p>Appeal from "Wayne.</p> <p>Bill for divorce. Complainant appeals.</p>

<p>Appeal from Wayne.</p> <p>Bill for divorce. Defendant appeals.</p>

<p>Appeal from Macomb.</p> <p>Bill of foreclosure.</p>

<p>Oontin/uous guaranty — Notice to gua/rantor — Guaranty for future purchases — Acceptance.</p> <p>A guaranty of payment for goods to be sold “from time to time” to an amount not exceeding a specified sum, is continuous until the sums remaining unpaid reach the designated limit, even though the aggregate of purchases far exceeds it. It would be different if the guaranty contemplated a single transaction.</p> <p>Where a guaranty of payment is absolute in its terms and waives notice of times or amounts of sales or of defaults or delays in payment, the guarantor is not entitled to notice of its acceptance.</p> <p>An absolute guaranty of payment for future purchases binds neither party until it has been acted on, and until then it may be withdrawn, or delivery of goods may be refused even though verbally promised.</p> <p>Making sales in reliance on a guaranty of payment, amounts to an acceptance of it.</p>

<p>Complaint for forcible detainer — Complainant’s interest — Widow ma/y proceed without waiting for assignment of dower — Waiver of notice to quit — Bepedls.</p> <p>A complaint under the Forcible Entry and Detainer Act alleged that complainant was the landlord of the premises described, and respondent the tenant thereof; that respondent holds said premises unlawfully and against the right of said complainant, who is entitled to the possession of them in her own right and as guardian of the minor heirs of a designated person. Held, sufficient.</p> <p>The Forcible Entry and Detainer Act does not contemplate summary proceedings to recover the possession of land unless the demandants represent the entire interest.</p> <p>In Michigan a widow may bring ejectment for her undivided interest without waiting to have her dower assigned her. She has a present possessory claim capable of enforcement.</p> <p>Tenants in common of the whole estate can join in summary proceedings to recover its possession.</p> <p>An intestate’s widow and the heirs at law represent the whole possessory estate, and where the widow has the right of possession in behalf of the heirs, and thus represents the whole title, she can bring summary proceedings to recover its possession without waiting for the assignment of her dower to her.</p> <p>Proceedings under the Forcible Entry and Detainer Act may be brought against one who is in possession either as a contract purchaser, or as a lessee, and who being in default, is a tenant at will and liable to be ousted on notice.</p> <p>A tenant at will can waive notice to quit.</p> <p>Where a sufficient notice to quit has been given and the tenant has promised to leave at a fixed date, a repetition of the demand does not impair the efEect of the original notice.</p> <p>Where a statutory provision was repeated without change in what purported to be an amendatory act and the latter was afterward repealed, the original provision was repealed also.</p>

<p>Assignments for benefit of creditors — Omission of assignee to file bond — Act 198 of 1879 — Attachments.</p> <p>Where an assignee for the benefit of creditors has assumed the trust, his omission to file a bond ■within ten days for its faithful execution, as required by Act 198 of 1879, does not render the assignment absolutely void, but only voidable, and creditors may proceed by bill in equity for the enforcement of the trust.</p> <p>Rights acquired by attachment are inchoate until judgment and levy of execution.</p>

<p>Misdescription in deeds — Identification of premises by parol evidence— Absence of findings — Mistrial—Assessment of damages.</p> <p>A conveyance is not invalidated by tlie fact that the plat of land referred to in the description is not recorded or that so much of the description as refers to the plat is incorrect; the land may be identified by pai'ol evidence.</p> <p>A deed described the land conveyed as lot 77 of the original plat of the village as recorded. The original plat only contained twenty-nine lots, and another plat, which was not so executed as to entitle it to record, incorrectly designated the land referred to as lot 78. Still another plat, which was not recorded, contained the lot, and it was shown that it had been hold, taxed and dealt with for more than twenty-five years as lot 77. Held that the error in description did not invalidate the conveyance.</p> <p>Judgment cannot be rendered on an alleged state of facts which has not been found, nor be given for damages if there is no finding of damage set forth in the record.</p> <p>Where findings, in favor of the plaintiff on all points presented could not have established his right to a judgment, the case cannot be treated as one of mistrial for refusal to find on some of them.</p> <p>The Supreme Court cannot in a case at law proceed to ascertain and assess the damages involved, no matter how well established may be their measure.</p>

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

<p> Misdescription in mortgage aided by possession. </p> <p>Where land has been occupied for many years under a series of grants containing an erroneous call in the description, but is fully capable of identification and actually identified, a mortgage of it as a homestead by the same description duly executed by husband and wife, is not void, but may be corrected like any other conveyance having the same description, and will not be postponed to an attachment or exe-, cution levy made upon the same title.</p>

Assumpsit brought by Winifred Sheridan against her- . brother James Martin for a certain sum of money alleged by the declaration to have been placed by her in the. hands-of her mother, Ellen Martin, for safe-keeping, and to be-returned on request, but which said Ellen Martin deposited in the Eirst National Bank of Marshall, whereupon James-Martin drew it while she was sick, on pretence of being her guardian, and appropriated it to his own use.

<p>Error to Houghton.</p> <p>Assumpsit for the price of goods sold by Heuer & Brockschmidt to Edwards. Defendant brings error.</p>

<p>Liquor-seller’s bond — Justification of sureties — Approval by council.</p> <p>A liquor dealer’s bond, where the penalty has by mistake been left in blank, will be held valid at the lowest statutory penalty when the sureties have justified at that sum in accordance with the statute requiring the justification to conform to the penalty.</p> <p>Such a bond in Bay City cannot be enforced until approved by the common council; and the report of a committee approving it will not be sufficient unless the report is adopted by the council.</p>

Replevin for goods which plaintiff claims to have placed in defendant’s hands under a contract, and which defendant mortgaged to one Forrest. Plaintiff brings error.

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

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

<p>Motion for leave to file a substituted return.</p> <p>Appeal from Berrien.</p> <p>Specific performance. Defendants appeal.</p>

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

<p>Nepamig streets — Legality of paving assessments — Notice to bidders for pa/aing contract — Documentary proofs — Deficiency in record.</p> <p>Under tlie paving system followed in Detroit, the contractor is not an indispensable party to a suit against the city to enjoin the enforcement of an assessment.</p> <p>The city of Detroit has authority to repave streets at the expense of the adjacent property, where there is a necessity for repaving, and the method of procedure is the same as in other paving. No contract for paving can be made until the common council has referred the matter to the Board of Public Works, and received from that board the reports and information provided for in the Public Works Act, as decided in Butler v. Detroit, 43 Mich. 553. But an assessment will not be held void when this has been done substantially in accordance with the purposes of that act.</p> <p>Notices to bidders must contain the substantial requisites of specifications, so that bidders can from such notices obtain the information necessary to enable them to prepare their bids.</p> <p>Where the determination of the legality of paving assessments depends on documents, the court will not pass upon it without full proof of the documents themselves. It will not accept the inferences and conclusions of parties or counsel, hut will construe them for itself. Am. Ins. do. v. Heed, 40 Mich. 622, followed.</p> <p>WRere a cause was heard on pleadings and stipulations which did not set out in terms documents necessary to be considered, the decree was vacated and the cause remanded for such further proceedings as should remedy the deficiencies.</p>

Proceedings by township board to remove school director. The order of removal was reversed on certiorari and the board brings error.

<p>Appeal from St. Joseph.</p> <p>Bill for accounting for trust funds. Complainant appeals.</p>

<p>Vendor's lien — Mortgage on breeding ma/re.</p> <p>The reason for a ruling is not important in the review of a case, if the result is correct.</p> <p>The lien on property retained by the vendor covers all its natural incidents and accessories unless circumstances show a different intent.</p> <p>Where one buys a mare on credit and gives a chattel mortgage on her for the entire purchase price, and she is afterwards found to be with foal which is not weaned before the credit expires, he is not entitled to keep the colt if he makes default in payment and the mare is taken on the mortgage.</p>

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

<p>JDrains — Notice—Appointment of commissioners.</p> <p>Proceedings to lay out a ditch are fatally defective if there is no affirmative showing that notice was given of the application to the probate court for the appointment of commissioners to assess damages, and of their appointment.</p>

<p>Motion for mandamus, quo warranto or certiorari, to determine relator’s right to a seat in the Common Council of Detroit, claimed by respondent Simpson, whose claim was supported by the Council.</p>

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

<p> Bwrden of proving grcmtor’s incompetency. </p> <p>On a bill to set aside a deed for the grantor’s incompetency, the burden of proving incompetency is upon the complainant, whose case fails if the evidence is so evenly balanced as to leave the question in doubt.</p>

Appeal by Alex. T. Campau, an heir of Theo. J. Campau, from a probate order allowing a claim against the estate. Claimant had judgment. Appellant brings error.

<p>Appeal from Kent.</p> <p>Bill to enjoin collection of special assessment. Complainant appeals.</p>

<p> Intrusion upon case of confinement. </p> <p>Where a physician takes an unprofessional unmarried man with him toatienda ease of confinement, and no real necessity exists for the latter’s assistance, both are liable in damages; and it makes no difference that the patient or husband supposed at the time that the intruder was a medical man, and therefore submitted without objection to his presence.</p> <p>Damages may lie for an injury done, when its full extent is discovered,, though long after the act from which it springs.</p> <p>A physician took an unprofessional friend with him liim to attend a case of confinement when there was no emergency requiring the latter’s presence. The physician told the patient’s husband that he had brought a friend with him to help him carry his things, and he was accordingly admitted. The patient, on afterwards discovering the facts, sued both in damages. 2eld, that the plaintiff and her husband had a right to presume that the outsider was a medical associate; that in obtaining admission without disclosing his true character, the defendants were guilty of deceit; that plaintiff had a right to testify that she had supposed he was a physician or medical student, and also to give evidence of whatever may have been said at, the time tending to support such supposition. It was also admissible to ask a competent witness as to the custom among physicians, in regard to calling assistance in these cases.</p> <p>A witness cannot be asked what he stated in an affidavit, but the affidavit itself must be produced.</p>

<p>Accounting — Becord—transcripts from books— Voluntary Compromise.</p> <p>Transcripts from partnership books and not the books themselves should be returned to the Supreme Court on an appeal from a decree on an accounting, unless there is something in the appearance of the books which is necessary to consider on questions of fraud or forgery, or some special difficulty. Otherwise parties ought not to be deprived of the custody of their books.</p> <p>Where a partner had turned over to the firm certain securities to be used in paying for property purchased by them, and the firm credited him with them and guaranteed them to the party to whom they were given, and when a deficiency afterwards arose the partner who had been credited took back the title to a part of the mortgaged premises, it was to that extent proper to charge back the securities to him.</p> <p>A fair compromise deliberately made by partners in settling their accounts ought not to be disturbed on a bill for an accounting, if the parties had had full opportunity to inform themselves and complainant does not show that there were false charges or omissions of specific credits.</p>

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

Complaint against defendant, as supervisor, for refusing and neglecting to ascertain the number of dogs in his township liable to taxation, and to make a duplicate list of their owners showing the number of dogs kept by each and the amount for which he was to be taxed therefor. Defendant brings error.

<p>Bastardy — complaint—demurren' to specific cha/rges — Jury cannot pass on sufficiency of complaint — Impeachment of witness.</p> <p>A complaint for bastardy made March. 20, 1880, and alleging existing pregnancy, is not invalidated by complainant’s uncertainty whether it was caused September 15, October 1 or October 15,1879, it appearing also that the child was born June 26, 1880'.</p> <p>A complaint for bastardy may properly be read at the trial, especially whore complainant and defendant are thoroughly examined and cross-examined, and the complainant’s examination covers everything which the complainant set forth.</p> <p>A witness cannot be impeached by contradiction on collateral matters.</p> <p>A jury cannot pass on objections to the sufficiency of a complaint for bastardy nor decide whether evidence has been improperly received under it.</p> <p>Objections to specific, charges in a complaint for bastardy as irrelevant and unsustained by proof, siiould be specifically made, and not raised by a general objection that the court should have charged the jury that the complaint must set forth the time and place of the offence and the allegation must accord with the law of nature and that proofs must be confined to the eomplaiuo.</p>

Mandamus to vacate order' of removal. Tlie respondent made an order staying tlie further prosecution in the circuit court of a suit brought by relators against Salmon S. Mathews and others, and removing the cause to the circuit court of the United States for the eastern district of Michigan. Delators ask for a mandanvios to vacate the order.

<p>Condemnation of lands — Commissioners of appraised — Cm'tiora/ri.</p> <p>Jurisdiction, to appoint commissioners of appraisal in proceedings to condemn land cannot be conferred by notice served only on a person wlio is in no way connected with the owner of tlie premises and bas only gone on them to receive service by collusion with, those interested in the condemnation.</p> <p>Certiorarri will lie to review proceedings to condemn land when void for want of jurisdiction; though it should not be favored where any other remedy is adequate.</p> <p>A writ of certiorari in oases involving interference with important works ought not to be allowed unless applied for as soon as practicable; and if granted after the expiration of the twenty days allowed for an appeal in proceedings to condemn land, will not be sustained unless the delay in suing it out is satisfactorily explained.</p>

Assumpsit. The declaration is as follows: In the Cwouit Court for the Cownty of Wayne: The People of the State of Michigan, by Otto… Held: were sold by the former company at an aggregate discount of $185,459.34; that none of such bonds were sold for more than their par value, and that no taxes have been paid to the State of Michigan on account of the amount of such discount, since the decree in the suit between the State and the Michigan Southern and Northern Indiana…

<p>Municipal corporations — Approved of resolutions passed by common council —Absence of mayor,.</p> <p>The charter of Detroit provides that resolutions of the common council shall he presented by the city clerk to the mayor for approval, and that if they are not approved or vetoed before the next meeting of the council they shall take effect without his signature. Held, that the mayor has the full period between the presentation of the resolution by the clerk and the next regular meeting thereafter, in which to act; and that his powers are not affected by the action of the clerk in withholding the resolution until a regular meeting has intervened.</p> <p>The charter of Detroit invests the president of the common council with the powers of the mayor in case the latter is unable to perform his duties by reason of absence from the city. Held, that advantage cannot be taken of his temporary absence to approve a resolution of the council if he is not disabled from returning in time to act upon it himself before the next regular meeting.</p>

<p>Ih'over for unlawful leroy — Justification—Custody of property — Exemption, from execution.</p> <p>A deputy sheriff having levied upon wheat in the mow, threshed and removed it before selling it, and in an action of trespass on the case for unlawful seizure and sale sought to justify by showing that when he had levied on a former crop under the same judgment, the defendant had removed it in the night. But as it appeared on cross-examination that it was removed by the holder of a chattel mortgage thereon it was held that the justification, if it was one, failed and that the evidence should have been stricken out.</p> <p>Placing a keeper in charge of property under levy is a sufficient precaution for its protection unless violence is apprehended.</p> <p>Seed wheat being necessary to the business of wheat farming is material which, within the limits defined by Comp. L., § 6101, is exempted from execution against the farmer.</p>

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

<p>Error to Shiawassee.</p> <p>Information for adultery. Respondent brings error.</p>

<p>Taxation of raihoay compcmies running parity in ofh&r States — Consolidation — Tbi'eign companies.</p> <p>The Michigan Southern Railway Company was established by the State of Michigan under a special charter which defined the basis on which it was to be taxed. The State afterwards authorized it to consolidate with the Northern Indiana Railroad Company, with no change in the basis of taxation, and a general railroad law was passed at about the same time. This law, and various similar acts afterwards passed, provided that companies within the State might consolidate with companies in other States, and that every corporation formed under the law should be taxed at a certain rate. The Michigan Southern and Northern Indiana Company meanwhile became part of the Lake Shore and Michigan Southern Railway Company under consolidation ■ agreements with corporations in other States through which the route of the consolidated company lies and in which its business is done. A writ of mandamus sought for by the State Treasurer to compel the Auditor General to assess the company under the general law was denied; it is not a corporation formed under that law, and taxes are properly assessed upon the basis fixed by the original special charter.</p> <p>A State cannot tax the whole track and equipments, the gross earnings, or the entire capital stock of a road which lies partly without its boundaries, and is partly operated in other States. It can only tax that part of the road property which lies within its jurisdiction, or the proportion of stock representing that part of the road.</p> <p>A tax upon the gross earnings of a railway company whose road is partly outside of the jurisdiction, is illegal, not only because of the want of jurisdiction, but because it is not levied upon a rule of equality with corporations whose business is wholly in the State.</p> <p>The State has the same power to authorize several existing corporations to associate themselves together and organize themselves into a new corporation, as it has to incorporate individuals.</p> <p>A corporation is a creature of the sovereign will, and when created by one sovereignty it can operate within another’s limits only by the latter’s express permission, or by permission implied from principles of comity, but such permission does not make it any the less a foreign corporation. =</p>

<p>Appeal from Wayne.</p> <p>Bill for divorce. Defendant appeals.</p>

<p>Appeal fromBay,</p> <p>Bill to set aside tax sales and vacate sewer assessment. Defendants appeal.</p>

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

<p>Replevin— Value — Jurisdiction determined by damages.</p> <p>G. in working for E. used his oxen which became injured, and E.’s agent agreed that G. might buy another yoke which E. should pay for, but G. should keep if on the final settlement the balance in Ms favor should be enough to pay for them. No settlement was made and • E.’s agent had charged G. $125 for damages to cattle and for their use. G. sold the oxen to W. who sued E. for them in replevin. Held, that the question whether the oxen were worth the amount charged for them was inadmissible because there was no proof that G. had ever agreed to pay for their use or for the damage, and that he could not be liable for their use without such agreement and! could only be held for the damage in an action in tort.</p> <p>The value of property is not in issue in a replevin suit therefor except for the purposes of an assessment of value in defendant’s favor.</p> <p>In suing out a writ of replevin for property for which plaintiff had recently paid more than $100 and which defendant had taken from, his possession without his consent, the plaintiff may properly regard his cause of action as within the jurisdiction of the circuit court.</p> <p>It is not so much the value of the property in litigation as the damages-involved which affects the jurisdiction.</p>

<p>Appeal from Lenawee.</p> <p>Bill in aid of execution. Both parties appeal.</p>

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

<p>Payment of taxes by mortgagee — Bidding in mortgaged property at tax sale — Tax purchase by agents.</p> <p>On foreclosure for non-payment of taxes as they fell due the mortgagee claimed to recover as taxes paid by himself, certain sums paid by his agent in bidding in tbe property at tax sales. Held, that such payments were not, in contemplation of law, payments of the taxes, and could not be included.</p> <p>When a fnortgagee instead of paying taxes due, purchases the land at a tax sale, the mortgager can treat the purchase as a payment and compel the cancellation of the tax certificate or deed on refunding the ampunt paid, with interest. But it cannot against his will be held a payment in his behalf.</p> <p>Neither party to a mortgage can cut off the other’s interest by bidding in the premises at a tax sale, if the other objects thereto.</p> <p>A tax purchase by an agent in his own name but with his principal’s money does not support a resulting trust in his principal’s favor.</p>

<p>Appeal from Saginaw.</p> <p>Bill to enjoin tax sale and vacate assessment. Complainant appeals.</p>

<p>Error to Saginaw.</p> <p>Trespass on the ease. Plaintiff brings error.</p>

<p> Release of mortgage try eestuis que trustent. </p> <p>A mortgage to secure the payment of certain judgments was given to a trustee for the benefit of different judgment creditors, each of whom already held separate mortgages on other property securing the same judgments. The holder of an interest in parcels covered by all these mortgages negotiated for a release and obtained one which purported to discharge from the earlier mortgage only, but which , was evidently understood by all parties to release from the later one also. The creditors afterwards obtained an assignment from the trustee and sought to foreclose. Held, that a release by the eestuis que trustent was good in equity and discharged the later mortgage; that their bill should be dismissed, and that a cross-bill was not necessary for establishing a defence thereto.</p>

Exceptions before judgment from St. Joseph. Information for conspiracy to obtain money by false pretences. Respondent was found' guilty.

<p>Iryjv/ry to ripa/rian properly by proximity of bridge — Estoppel from claiming damages — Effect of legalizing statute vpon existing right of action.</p> <p>A dock owner whose property is injured by the proximity of a bridge, is not estopped from claiming damages by the mere fact that his grantor had petitioned for the bridge, if the bridge company’s action was not determined by the acts of the grantor.</p> <p>The testimony of a witness as produced on direct and cross examination must be taken altogether. ■</p> <p>An estoppel is not established if the evidence fails as to any essential element of it, but if there is more than a scintilla of evidence to establish it, the court will not inquire into its weight.</p> <p>Where the Legislature legalizes rates of toll fixed by a board of supervisors for the use of a bridge previously erected without authority of law, the action of the two bodies precludes any question of the legality of the bridge thereafter.</p> <p>An existing claim for damages arising from the establishment of an unauthorized bridge is not cut off by the action of the Legislature and the supervisors in merely recognizing the bridge as lawful, though no such claim can arise after their action.</p> <p>Statutes do not operate retrospectively unless their language clearly shows that the Legislature meant them to.</p> <p>The State cannot interfere with a riparian’s profitable enjoyment of the shore without compensating him.</p> <p>Whether the State can so legalize a bridge as to cut off pre-existing claims for injuries resulting from its maintenance — Q.</p> <p>In an action for damages to a dock-owner resulting from the construction of a bridge near by which tended to prevent vessels from stopping at the dock, it is admissible for the plaintiff, after showing such interference, to give a general estimate of the annual damage caused him thereby; the defence can cross-examine him as to the particulars upon which the estimate was formed, and the weight of the evidence is for the jury, who should take it in connection with other facts in evidence.</p> <p>In an action for actual damages the defendant’s good faith has no bearing.</p> <p>In an action for damages to property caused by neighboring structures, the fact that plaintiff has offered to lease part of the property to defendant has no proper bearing in the case.</p>

<p>Appeal from Gladwin.</p> <p>Specific performance Complainant appeals.</p>

<p>Error to Hillsdale.</p> <p>Appeal from allowance of claim by commissioners on an estate. Tbe executors bring error.</p>

<p>Error to Livingston.</p> <p>Proceedings under Comp. L. ch. 211 for recovery of land. Complainant brings error.</p>

<p> Damages to mill-owner from delaying logs. </p> <p>Damages for injury to a mill-owner by hindering him in June from getting logs down stream to supply bis mill, include also the resulting injury of keeping his mill idle during later months.</p>

<p>, Promise without consideration to be responsible fen' title.</p> <p>A town treasurer sold a pump on a tax levy and the purchaser sold it to-third parties who claim that the treasurer promised verbally, and without receiving any consideration, to be responsible for the title. field, that the promise was a collateral undertaking involving no liability until the failure of the latter contract, under which a warranty of title was implied by rules of law.</p>

<p>Appeal from Lapeer.</p> <p>Bill to prevent collection of deficiency on foreclosure. Defendants appeal.</p>

<p>Appeal from Kent.</p> <p>Bren of injunction to restrain obstruction of alley. Defendants appeal.</p>

Assumpsit. Plaintiff recovered judgment before a justice for $40.29 damages and $10 costs; on an appeal taken by tbe defendant he again obtained a verdict and bis damages were assessed at $50, but defendant was given costs. Plaintiff brings error.

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

<p>Case made before judgment from the Superior Court of Detroit.</p> <p>Trespass on the case. Plaintiff brings error.</p>

<p>Assignability of lease on shares — Forfeiture of personal lease.</p> <p>A lease upon shares is a personal contract and not assignable where the amount of rent received must depend on the character and skill of the lessee, or where it gives the lessee the use of the lessor’s tools on condition that they may be properly kept.</p> <p>A personal lease is forfeited by an assignment and attempt to give the assignee possession, and the lessor may take immediate steps to recover the premises.</p>

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

<p>Error to Macomb.</p> <p>Trespass on the case. . Plaintiff brings error.</p>

<p> 'Remorad of school director by township board. </p> <p>Proceedings by a township board to remove a school director cannot properly be taken until the action of the proper authorities has been invoked by complaint of some definite violation of duty, (Comp. Laws, § 3695); but where the plaintiff admits the charges set up against him and expressly desires the board to act on them without farther delay, he cannot afterwards complain that they did so.</p> <p>The action of a town board in removing a school director is final unless speedily brought up for review.</p> <p>The wilful refusal of a school director to sign a contract made with a teacher, or to accept and file it, or draw orders for the teacher’s pay while it is pending, and his obstinate neglect to furnish necessary ■ school-house supplies, may he taken into account in proceedings for his removal.</p>

<p>Justices’ cow'ts — OeHified tianscript — Identity of defendant.</p> <p>A properly certified transcript of a justice’s judgment rendered in another State on personal service and appearance, is sufficient evidence of the justice’s jurisdiction. Oomp. Laws § 5988.</p> <p>The identity of a person sued on a transcript of a foreign judgment may he presumed if his full name is identical with that of the party against whom it was recovered.</p>

<p>Judgment against sweties on appeal bond — Winding on settlement of guardian’s account — Debts of ward to guardian — Debts for necessaries— Domestic relationship.</p> <p>On appeal from probate proceedings for tbe settlement of a guardian’s account tbe sureties on tbe appeal bond cannot be included in the judgment.</p> <p>Tbe conclusions of tbe circuit court upon an appeal from probate proceedings for tbe settlement of a guardian’s account, should take tbe shape of an order showing what is allowed and what is not, and providing that it be certified to tbe courts below.</p> <p>If a guardian can include in tbe final settlement of bis account a debt to him incurred by bis ward before tbe guardianship began, be cannot do so where tbe debt bad become barred by tbe statute of limitations-before that period.</p> <p>Where an uncle furnishes board and clothing to a minor nephew whoafterwards becomes bis ward, tbe liability therefor is a debt for necessaries and does not properly spring from tbe relation of guardian and ward.</p> <p>Evidence that a minor was an admitted member of tbe same family asoné who was afterwards made bis guardian, and was provided for as-such during a period for which tbe guardian afterwards sought to-charge him for board and clothing, is admissible in a proceeding for tbe settlement of tbe guardian’s accounts.</p>

<p>Appeal from Wayne.</p> <p>Bill to quiet title. Defendant appeals.</p>

<p>Error to Mason.</p> <p>• Assumpsit. Defendant brings error.</p>

<p>Wills — Issue on probate — Testamentary capacity.</p> <p>In proceedings for the probate of a will the only main issue is whether or not the paper propounded is a will, and if there are also minor issues they belong to the same inquiry and cannot be presented separately.</p> <p>A petition for the prohate of a will need not allege testamentary capacity; it is necessarily in issue.</p>

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

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

<p>Appeal from Marquette.</p> <p>Bill to set aside a levy. Defendants appeal.</p>

<p> Qertiora/ri to bi'ing up proceedings to lay out ditch. </p> <p>A writ of certiorari to review proceedings for laying out a ditch was sued out eight months after the work had been finished and when the only assessments in arrears were those for which the petitioner was liable. The work had continued more than a year and was to be paid for in three annual assessments. Held, that the fact that he was out of the county when he heard the ditches were finished was not in itself a sufficient excuse for his delay in suing out the writ, and] that certiorari was not the proper remedy to enforce whatever rights he might have.</p> <p>Certiorari to review proceedings to carry out public improvements should not be granted after any considerable delay in suing out the writ, unless the court is satisfied that the delay is not due to the petitioner’s neglect.</p>

Trover, begun by capias ad respondend/wm sued out by Elizabeth Hilsendegen against Marx, upon an affidavit setting forth that affiant’s son having enlisted during the war,, became entitled to a bounty, and that he died and affiantapplied for its payment through Eugene Eecht; that the bounty was paid to Marx upon a government certificate to which he had obtained affiant’s signature, and that Marx fraudulently retained the money; that affiant had not learned that the money had…

<p>Mandamus to set aside a sale, levy, execution and judgement based upon a transcript of a judgment by a justice.</p>

<p>Error to the Superior Court of Detroit.</p> <p>Case for libel. Plaintiff brings error.</p>

Bill to compel widow and heirs to indemnify the administrator for paying a claim against the estate. Dismissed on demurrer.

<p>Tenant in common — Partition—Lessee’s interest — Homestead exemption— Peed covers buildings — Validity of judgment put in evidence.</p> <p>A court’s conclusion of fact in favor of the validity of a judgment introduced in evidence, cannot be reviewed if there are no facts or exceptions which would raise a doubt on the subject.</p> <p>Buildings are presumed to go with the land in the absence of proof to the contrary.</p> <p>A tenant in common cannot have, as such, any peculiar interest in any specific portion of the entire tract held in common; and his possession is subject to the incidents of partition whatever the portion that may be thereby set off to him.</p> <p>Whatever a tenant in common takes by partition he takes practically as a purchaser from the aggregate tenancies.</p> <p>A son who goes upon his fatlier’s land with the father’s consent, and occupies a building already there, but who takes and holds possession under no claim of enjoyment that would create a homestead interest, and after his father’s death pays rent to the representative of the estate, is merely a lessee, so far as his exclusive possession is concerned.</p> <p>A lessee can convey his interest as such without his wife’s consent.</p> <p>The homestead exemption from execution is an exemption of an entirety, though a homestead may also be claimed in lands held in joint tenancy and not exceeding the homestead limitation in quantity.</p>

<p>Moi'tgage — Proof of delivery — Loan agent — Bonus on loan — Notice of prior lien — Land-poor—Affirmance of decree in doubtful cases.</p> <p>Where a mortgager testifies in general terms that he game the mortgage at a specified time, and is not questioned as to the particulars of delivery, this testimony must be regarded as showing delivery at that time.</p> <p>A complainant in foreclosure desired to show that the mortgage held by him was delivered and recorded before another one of previous date held by a person who had died before the suit was begun; and he sought to show it by the testimony of a witness who claimed the decedent had told him his mortgage was neither acknowledged nor delivered until the other was put on record. The witness had lived five or six miles from decedent, and was not shown to have been his confidant. Complainant had a mortgage on the lands of the witness. Held a suspicious circumstance that he had never mentioned his conversation with decedent in the latter’s lifetime, nor until after complainant’s suit had been pending seven years, and until complainant had called upon him, just before he was sworn, to know if he was possessed of valuable information.</p> <p>Where a son acts for his father in procuring a mortgage, undertakes the whole negotiation, decides upon the security, satisfies himself as to the title, attends to the execution of the papers, receives the money from his father and pays it over to the mortgager, — in short does every thing an agent could do, and his father accepts the benefits of the transaction, he may properly be regarded as his father’s agent in spite of his testimony to the contrary, especially if he admits being his agent just before and just after these acts; it is idle under such circumstances for him to claim to have been agent for the person giving the mortgage.</p> <p>Extortion of a honua from the borrower of money is too common a procedure on the part of the lender’s agent, to be very significant for the purpose of showing that he was the borrower’s agent rather than, the lender’s.</p> <p>The fact that the value of land is not enough to secure two loans is significant, but not conclusive, evidence that the second mortgagee had notice of the prior lien.</p> <p>“Land-poor” is understood to mean that one has a great deal of unproductive land, and perhaps that he has to borrow money to pay taxes. But a man land-poor may still be responsible.</p> <p>A decree may be affirmed where the appellate court is not satisfied that the trial judge was in error in his findings as to the preponderance of testimony. v</p>

<p>Bill in aid of execution — Bight of granice — Extinguishment of parol interest — Conveyance to wife to cancel debt — Suppression of deed — Levy on'lands — Estoppel—Priority of record.</p> <p>"WLere a hill in aid of execution is filed to reach land which has been previously conveyed without fraudulent intent, the grantee’s right must be determined by the original nature of the transactions, and cannot be made to depend on later dealings with other lands which are not involved in the litigation.</p> <p>An interest that rests in parol may be extinguished by parol.</p> <p>A purchaser of land was in debt to his wife to an amount exceeding the purchase money, and as she desired security, he returned his deed to the grantor and had another executed directly to her. She afterward wished to buy the land outright, and gave up to her husband the evidences of his debt. Sold, that as between them the transaction could be upheld as a sale; the cancelling of the debt was a complete payment of consideration.</p> <p>'One who has deliberately obtained an apparently legal transfer of land with intent to have the legal title placed in some one else, and that for good reasons, and without fraud or deceit being practiced on him, cannot afterwards assail the transfer by parol evidence and show a former deed to himself which he had suppressed, without recording, in order to have the land reconveycd.</p> <p>Judgment creditors levying upon land that has been previously conveyed in good faith on both sides, obtain by their levy no better title than is held by the debtor.</p> <p>'Title to land cannot pass by a mere estoppel shown by parol; neither can an apparent title be assailed by the parol evidence of one who has caused its transfer.</p> <p>'The presumption in favor of one who holds the earliest recorded title, cannot be destroyed without proof of an earlier right based on superior equities.</p>

Clair. Trespass on tbe case for damages from false warranty. • The counts of plaintiff’s declaration were as follows: For that whereas, the said plaintiff heretofore, to-wit: on the 20th day of May, in the year 1880, at St. Clair, in said county of St. Clair, at the special instance and request of the said defendant, bargained with the said defendant to exchange with the said defendant a certain yacht called the “Phaon,” with small boat and furniture complete, of the said…

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

<p>Jwrors— Ohallenge— Qualifications — Newspaper libels — Justification—Headlines — Repetition—Printer's errors — Physicians.</p> <p>Overruling a challenge for cause and compelling the party to resort to a peremptory challenge does not prejudice him where he still has a right of peremptory challenge which he does not use.</p> <p>Where a juror challenged for opinion shows by his answers that he has no definite recollections there is no apparent ground for holding him disqualified.</p> <p>In a criminal prosecution for libel the truth alone, if not published with good motives and for justifiable ends, is not always a complete defence.</p> <p>In a civil action for libel no damages are recoverable for a libel that contains no falsehoods.</p> <p>Where a declaration for a libel published in a daily newspaper, does not aver its publication in the weekly edition, an offer to prove the circulation of the weekly is properly rejected until proof is made that it was published in that edition.</p> <p>In an action for newspaper libel an offer was made to show that the declaration was afterward published with head notes referring to plaintiff’s attorney but not to the plaintiff. Held proper to exclude proof of the head notes.</p> <p>Eepetition of a newspaper libel may be shown by proving the publication of the declaration containing the libelous articles in full.</p> <p>Hi a civil action for newspaper libel, the defendant, wlio was publisher of the paper, was properly allowed to state, on cross-examination, that the article complained of was not written by him.</p> <p>A civil action for newspaper libel was,, based on the publication of an article shown by defendant to have been handed to him for publication by plaintiff himself, but which was illegibly written, and was not published as written; there was no showing that it had been intentionally altered nor any plain proof of negligence; and it was also shown by defendant that plaintiff had said he would be satisfied if it could be corrected and put in the weekly edition. Plaintiff did not deny this and was not examined as to the article, and there was ' no testimony indicating what words were changed. Held that the article could not go to the jury as a basis of damages.</p> <p>A printer’s mistakes made without wrongful intent in printing a self-laudatory article furnished for publication by the subject of it, cannot be held a malicious libel.</p> <p>A physician has no right to publish matters of professional confidence without the approbation of the person concerned; it is a breach of professional duty deserving censure.</p> <p>In a civil action for libel based on a newspaper squib making game of the plaintiff, it is competent for the defendant to show how far the facts alleged or any part of them were true, and how far their truth would leave any cause of action remaining. It is also admissible to show under what circumstances the article was prepared and published.</p> <p>"Where an action of libel is based on a newspaper squib, and there is evidence tending to show that it arose out of a mutual banter, and that defendant told plaintiff he was going to publish it and that plaintiff assented, it is for the jury to find under proper instructions whether the article is really libelous even though it would be if unexplained.</p> <p>Whére a physician complaining of a libel claims that it injures his medical character, evidence as to his medical standing becomes relevant.</p>

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

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

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

<p>Replevin by trustee in banhruptcy — Oral evidence.</p> <p>A trustee in bankruptcy can maintain replevin for property belonging to> the bankrupt but held by one who claims under a contract purchaser who has not fulfilled the terms of the contract.</p> <p>Oral evidence is admissible, if no objection is made, to show that plaintiff in replevin is trustee in bankruptcy of the owner of the property, and that his previous right as assignee of the owner is not cut off by the decree in bankruptcy so far as relates to the right to maintain the action.</p>

Clair. Replevin by Farrington, wbo was trustee in bankruptcy for Roe Stephens, against Coats, wbo bad purchased a Standard organ at a sale on execution against tbe said Stephens. Tbe organ bad been sold by Stephens in 1876 to Anna M. Keery, but by tbe terms of tbe sale she was not to acquire title until it bad been fully paid for.

<p>Error to St. Clair.</p> <p>Appeal from tbe allowance of a claim by commissioners on the estate. The administrator brings error.</p>

<p>Justices’ com'ts — Suit Try municipality — Qertiora/ri—Official title.</p> <p>A justice of the peace can hear a suit brought by a municipal corporation.</p> <p>The objection that the evidence introduced in support of a claim is not the best evidence cannot be raised for the first time in the Supreme Court.</p> <p>On certiorari all objections that are not to the merits must be disregarded. Comp. L. § 5477.</p> <p>Omission to sue a municipal officer by his official title is not a substantial objection if his liability is shown.</p>

Bill of interpleader filed to determine the right to a fund of $2000, being the amount due from the complainant association upon the death of John Priest, a member thereof.

<p>Case made from Kent.</p> <p>Trespass qu. cl. Defendant had judgment.</p>

Information for nuisance. Tbe court below adjudged that defendants be fined and that the cause of the nuisance be removed.

<p>Railway stations — Rights of expeetm'ating passengers-</p> <p>Í Railway passengers are entitled to remain in tlie waiting room at a station ' as long as they have occasion to do so, and commit no offense against the good order of the place and reasonable regulations made to govern it; they are not bound to leave on being ordered out by the keeper for any such indecorum as spitting on, the flooi^Jand the refusal to go on being ordered will not excuse the commission of an: assault and battery upon them to compel them to.</p> <p>A railway station keeper assaulted a passenger for not leaving the waiting room when ordered, the passenger having enraged him by spitting on the floor. Held, that in defending an action for the assault and battery a question as to the plaintiffs smoking was irrelevant, where his smoking had not been objected to.</p>

Exceptions before judgment from the DecordePs Court of Detroit. Information for an attempt to commit larceny from the person. Despondent was convicted below. '

<p>Exceptions before judgment from Calhoun.</p> <p>Information for enticing away a female. Bespondent, was found guilty below.</p>

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

Assumpsit on the common money counts by Rothfuss against Schmemann for money had and received as Roth-fuss’ agent in making collection on a mortgage which he had negotiated for Rothfuss, and for moneys advanced by Roth-fuss to carry on its foreclosure. There was testimony tending to show that Schmemann had deceived Rothfuss as to payments made and that Rothfuss had directed him to foreclose upon his representations that the interest had not been paid when in fact it had been.

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

<p> Bishop not liable for payment of priests salary. </p> <p>A bishop is not liable for the salary of a priest whom he has engaged; they are fellow servants of the church for which the bishop acts merely as a superior agent, and not as a principal.</p>

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

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

<p>Mre insurance — Statement of interest — Assignment without consideration.</p> <p>A fire insurance policy stipulated that it should be void il tbe interest of tbe assured were other than “tbe entire, unconditional, free and unencumbered ownership.” Tbe applicant for insurance bad only an undivided half interest in tbe property, having transferred tbe other half to bis son, who had mortgaged it to his mother, and afterward assigned it for tbe benefit of creditors. Tbe applicant went to tbe assignee and to tbe mortgagee, to obtain their interests, and they told him verbally that be could have them, and upon these assurances be had tbe property insured. Seld that, as no consideration appeared for tbe transfer of then interests, tbe policy was void.</p>

<p>Error tó Superior Court of Grand Bapids.</p> <p>Assumpsit. Plaintiff brings error.</p>

<p>Eemwrrer — Injury by overflow — Estimate of damage — Obstructing ditches.</p> <p>A demurrer on technical grounds does not affect the sufficiency of a declaration in matters of substance.</p> <p>A declaration in case before a justice for overflowing defendant’s land, sufficiently sets forth the cause of action in alleging that defendant dammed or caused to be dammed a ditch which plaintiff had used,as a matter of right for more than twenty years and was situated on a road laid 'out by the commissioners of highways, and that by the obstruction of the ditch the plaintiff had suffered damage as specified.</p> <p>The opinions and estimates of eye witnesses acquainted with the premises and the surroundings are admissible to show the extent of damage done by overflowing land.</p> <p>A man was sued for overflowing plaintiff’s land by obstructing a ditch. His wife and child were the persons who filled it up, but when the plaintiff cut trenches to let off the water, defendant himself filled them up again, threatened those who were sent to re-open them and asserted his purpose not to let the main ditch be cleared for less than $1500; there was some evidence also that he knew where his wife was when she was' at work. Held, that the jury were justified in finding him responsible for the mischief.</p>

<p>Insurance of gbrcmger — Defence based on public policy.</p> <p>An insurance policy issued for the benefit of a person who is neither an heir nor a relation of the assured, and whose interest is not promoted by the latter’s continuing alive is in the nature of a wager policy, and void as against the public interests.</p> <p>A party to a contract deliberately made, without fraud or deceit is in no position to defend against it on grounds of public policy, but the defence is allowed in the public interest.</p>

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

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

<p>Damages for conversion of logs — Title to personalty.</p> <p>The measure of damages in trover for the conversion of logs purchased in good faith from willful trespassers who have put them afloat, is their value when first'taken under defendant’s control.</p> <p>The purchaser of personalty runs the risk of the title, and if he buys from one who cannot give title he must suffer the loss and look to his vendor.</p>

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

<p>Execration for deficiency on f oreáosme — Practice—Retainer does not extend beyond decree — Costs.</p> <p>Execution for deficiency can issue against the defendant in foreclosure only on a sworn petition or application m writing, reciting tlie facts which give the right to it, and praying the court to direct its issue.</p> <p>An application for the issue of an execution for deficiency on foreclosure must be served, wherever practicable, on the defendant against whom the relief is sought, and notice must be given him of the time when the application will be presented; if personal service cannot be had, the court may direct substituted service on a showing of the facts.</p> <p>Retainer of a solicitor is not presumed to cover proceedings taken subsequent to the decree and for its enforcement.</p> <p>A defendant in foreclosure against whom execution is sought for a deficiency can resist the application only on grounds that are not inconsistent with the decree and such as usually operate in its discharge.</p> <p>An answer to an application for an execution for deficiency on foreclosure must state the grounds of objection thereto, and must be sworn to and placed on file.</p> <p>If an answer to an application for an execution for deficiency on foreclosure presents matter of discharge, complainant may take issue on it, and in proper cases the court may order a reference to take proofs.</p> <p>A decree in foreclosure adjudging defendant personally liable for a deficiency, taken together with the report of the deficiency, make out a vrima facie case against him; and on resisting an application for an execution against him he has the burden of showing matter in discharge of the decree.</p> <p>Where both parties in a chancery proceeding mistook the practice, and there were no special equities in defendant’s favor, he was allowed, on reversal, to recover the costs of printing the record and his brief in the Supreme Court, but in other respects each party was left to pay his own costs.</p>

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

<p>Appeal from the Superior Court of Grand Rapids.</p> <p>Rill in aid of execution. Defendants appeal.</p>

<p>Wills — Dismissal of appeal from 'probate — -fiew issues — Oertioran'i.</p> <p>New issues need not be framed in the circuit court in will cases.</p> <p>Dismissal of an appeal from the probate of a will is a final judgment which remands the proceedings to the probate court, and which cannot be set aside if not complained of within the two years allow-ed for removing proceedings to the Supreme Court on error or certiorari.</p> <p>Costs may be granted against a circuit judge on allowing a writ of mandamus to compel him to vacate an illegal order.</p>

<p>Street ca/i's — Contributory negligence — Accident to passenger.</p> <p>It is contributory negligence for a passenger of ordinary common sense to sit on tlic driving-bar of a street car even at tbe driver’s invitation if there is room for him inside the car.</p> <p>Courts must take judicial notice of what everybody knows with regard to the incidents of railway travel.</p> <p>In an action for an injury caused by falling off the front rail of a street car, and being run over, the defendant’s testimony, which was not contradicted, showed that the driver made every effort to rescue the plaintiff as he fell, and stopped his ear as soon as he could. Held that so far as running over him was concerned there was no question of negligence, on defendant’s part, to go to the jury.</p>

Case. The declaration is bere given. In tlie Oireuit Court for the County of Ma/rquette : Dennis Smith, by Geo.

<p>Appeal from Wayne.</p> <p>Petition to set aside a divorce. Petitioner appeals. Order ■dismissing petition</p>

<p>Injury from, defect in highway — Municipal negligence.</p> <p>A city under the statute of 1879, (Gen. Laws, p. 228), is liable to a party who is injured by reason of a defect in one of its streets along which he is passing : Burnham v. Byron, post, p. 555.</p> <p>In an action for such an injury it is not proper evidence on the part of the defence that persons living in the immediate vicinity had not noticed the defect, which had existed for several days.</p> <p>The plaintiff was permitted to show, as bearing on the question of municipal negligence, that similar defects had often been suffered to continue for a considerable time without attention. Held,, no error.</p>

<p> Alteration by ex parte proceedings of decree for specific p&tfoi'mamce. </p> <p>An action at law does not lie for damages resulting from the neglect to obey a decree requiring the specific performance of a contract, where the decree itself was unwarranted, as where it has been changed on an ear parte application and without notice to the defendant.</p>

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

<p>Township tames — Temporary secretary of township hom'd — Presumption that officer had qualified — Warrant for collection — Valuation of property— Correction of assessments — Assessor’s knowledge — Taxation of National Bank stock.</p> <p>An extension of time granted by a township hoard for the collection of is not invalidated hy the fact that in the absence of the township clerk, a justice of the peace, summoned to act as a member of the board, was appointed to act as secretary.</p> <p>Power to appoint a temporary secretary is incidental to corporate meetings; and if he has been entrusted with all the functions of the office his record and doings are valid, and they cannot be invalidated by any presumption that he was not sworn, especially if there was ' nothing requiring it to appear that he was sworn.</p> <p>It cannot be presumed that a defacto official has neglected to make any necessary qualification.</p> <p>A warrant for the collection of taxes is not fatally defective for being addressed to the treasurer of the township of-, if it is properly signed by a supervisor of a specified township, and is annexed to its tax-roll.</p> <p>An objection to the valuation of property as set down on a township tax-roll, on the ground that the figures indicating the amount are wrongly divided by a red line so that it is uncertain what it is, in dollars and cents, is not well taken where it is plain that no attention had been paid to the line, and that the amounts of taxes were all properly carried out between the right lines.</p> <p>If a tax-payer does not have the assessment of his property corrected and perfected when it is in his power to do so, he must be assumed to admit its correctness.</p> <p>A tax assessor cannot be presumed to have personal knowledge of the private affairs of persons assessed unless they choose to furnish it; as, of the amount of debts due by the holder of bank stock subject to taxation.</p> <p>The power of the State to tax national bank stock is derived entirely from the Act of Congress permitting it, and the requirement of the act must be obeyed in good faith. The State tax law is to be construed in connection with the act, in assessing stock.</p> <p>The Michigan tax law enumerates as taxable property all credits in excess of the debts of the persons taxed. Comp. Laws § 969. Held, that It is not necessarily in conflict witli the provision of the Act of Congress that national bank stock shall not be taxed at a greater rate than other moneyed capital in the hands of individuals (Rev. St. II. S. § 5219) even though the latter are taxed for the full value of their bank stock without deducting their indebtedness.</p>

<p> Assumpsit cannot be brought by mortgagee of chattels. </p> <p>A mortgagee of chattels cannot recover in assumpsit for their value if they are converted.</p>

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

<p>Bights of mortgagers under paid-up lease given as additional seewrity — Permission to hold over — ■Application of rental on mortgage debt.</p> <p>Where a paid-up lease for a certain period was given to mortgagees as additional security, and the mortgagees had the option to hold over-on paying a fair rental, the foreclosure of the mortgage would not prevent them from resorting to any additional security they might have, and they would have a right to apply the amount of rent due-from them and unpaid, in satisfaction of their debt; and if the mortgager should assign his claim for rent to a third person, the latter would have no better right than his assignor and could not. recover it until the foreclosure decree is extinguished.</p>

<p>Priority of mortgage — Praud v/pon nm'tgagee,</p> <p>A mortgager and his grantee conspired to cheat the mortgagee thus: The grantee quitclaimed to him in satisfaction of his foreclosure decree and the mortgager then recorded a later mortgage from the grantee to himself before the quitclaim deed could be recorded. Held, that the later mortgage should beset aside and the quitclaim deed permitted to stand.</p>

<p>JPowers of township hoards of health — Injunction against location of burying ground — Pollution of water.</p> <p>'The court of chancery has an undoubted jurisdiction to enjoin the action of township boards of health in establishing burial places, should they proceed to exercise it illegally or improperly to the injury of others.</p> <p>But these boards have large discretionary powers, the exercise of which will not be interfered with until a clear case is made out. It must be intended until the contrary is shown that they are acting in good faith and in the line of their duty.</p> <p>■Complainant sought to enjoin the location of a burying ground near his residence, for the reason, among others, that it would destroy his well. Held, to be a strong circumstance against his application that he had voluntarily bought and located his residence in the immediate vicinity of a burying ground which defendants were merely proposing to enlarge without bringing it nearer.</p> <p>And it appearing further that complainant’s barn yard was nearer the well and more likely to injure it than the burying ground, held, that an injunction should be denied.</p> <p>•Quaere whether there can be any legal ground for complaint for the pollution of subterranean waters when it is caused by a pfoper use, without negligence, of adjacent premises.</p> <p>If there can he any such ground of complaint it can only he when the injury is of a very positive and substantial character.</p>

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

<p> Venue of transitory aeUon against non-resident. </p> <p>Transitory actions upon contracts can be brought again^n-residents of the State in any county where service can be obtained upon them.</p> <p>The Constitution gives jurisdiction to the circuit courts over transitory actions upon contracts, against non-residents of the State ; and this jurisdiction cannot be taken away by any legislation limiting the forum of the action to the county in which the plaintiff resides.</p> <p>The statute (Comp. Laws § 5970) in requiring transitory actions to he tried in the county where one of the parties shall reside at the time of bringing suit, is meant to save resident defendants from vexatious suits in places remote from their homes, and not to protect nonresidents of the State from being sued at all if they cannot be found in the plaintiff’s county.</p>

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

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

<p>Easement not lost by mere neglect to enjoy but by lapse of appw'iencmee— Estoppel.</p> <p>An easement created by grant is not lost by neglect of enjoyment for' twenty years or more, in the absence of any evidence of occupancy adverse to it.</p> <p>"Whether the owner of an easement who has permitted another without objection to make valuable erections which cannot be enjoyed consistent with his use of the easement, is not by his apparent acquiescence estopped from claiming the easement afterwards — •$.</p> <p>An easement to take water on one tenement to be used for operating a mill on another, when created as an easement appurtenant to the mill and not to any described parcel of land, is lost when the mill goes to decay or is destroyed and not rebuilt.</p>

<p>Appeal from Superior Oourt of Detroit.</p> <p>Bill to set aside deed. Defendants appeal.</p>

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

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

<p>Error to Kalamazoo.</p> <p>Assumpsit. ’Defendant brings error.</p>

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

<p>Account stated — Settlement with employee for expenses — Offers of testimony' —.Incompetency of evidence as to private expenditures.</p> <p>A commercial traveler was sued by the firm who employed him as for money which they claimed to have overpaid him in refunding his. traveling expenses, which they were in the habit of doing on reports which he presented, and which, in their declaration, they allege to. have been false. Plaintiffs filed a bill of particulars of the debit items against the defendant, which the latter admitted. Held, that as one of (die plaintiffs admitted that the matter to which defendant’s admission referred had gone into an account stated the plaintiffs were bound by this admission, and, as there was no legal evidence of fraud, the plaintiffs were not entitled to recover on the strength of defendant’s admission of the items set forth.</p> <p>In an action by a firm of merchants against their traveling man to recover money overpaid to him in refunding Ms traveling expenses, the action being based on the theory that he had reported Ms expenses as larger than they actually were, it was not error to exclude evidence of the actual expenses of other traveling men over the same route in the same years, and that they were much less than were charged by defendant. Such matters are res inter alios acta, and if the circumstances are not identical they cannot be relevant.</p> <p>The statement of what it is proposed to show.in making an offer of testimony, is assumed to include all that is meant to be shown in addition to what has been already submitted, and if what is offered, though taken in connection with the evidence previously given, is incompetent to establish the main fact, it is proper to exclude the testimony.</p> <p>An offer of testimony must, in a review of the case, be considered as it was made, and no facts not expressed or clearly implied can be intended.</p> <p>In an action by employers against an employee for money claimed by the plaintiffs to have been paid him on false statements of his account against them, testimony to show that defendant has expended more than Ms salary besides supporting his family, and that he had no other source of revenue, is properly excluded, as there can be no presumption that he has wrongfully obtained so much as was not paid him in wages.</p>

<p>Appeal from Superior Court of Detroit.</p> <p>Bill for accounting for moneys received; for tlie appointment of a receiver, etc. Defendant appeals.</p>

<p>Condemnation for highway — Award of damages — Certiorari.</p> <p>An appeal to tlie township board from the decision of a highway com missioner in awarding damages for property taken for a highway is provided for by Comp. L. § 1264 (Act 216 of 1875); and if the only question is as to the amount of damages, cei'iiorari will not lie to the commissioner to remove the proceedings to the Supreme Court, where no reason is given for not resorting to the remedy by appeal</p>

<p>Appeal from Saginaw.</p> <p>Bill for divorce. Complainant appeals.</p>