Volume 47 — Michigan Reports

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

<p>Motion to strike tbe case from the docket.</p> <p>Error to Superior Court of Detroit.</p> <p>Case, begun by capias ad respondendum. Plaintiff brings error.</p>

<p>Assault and battery — Consequential injuries — Previous threats.</p> <p>In an action for assault and battery tbe plaintiff averred tbat by reason of tbe battery be was greatly hindered and prevented from doing and performing bis work and business and looking after and attending bis necessary affairs and avocations. Held, tbat this allegation did not justify the reception of evidence that plaintiff, being a farmer, and having hay ungathered at the time of 'the injury, was troubled in getting help to save it and in consequence it was seriously injured.</p> <p>It is not competent as an excuse for a battery to prove that several days before it was committed plaintiff had used insulting language to defendant’s wife, or had threatened the defendant.</p> <p>The court in such a case having properly excluded evidence of previous threats by the plaintiff, permitted the plaintiff to prove the negative— that at the time in question the plaintiff made no threats. Held to be error, and well calculated to prejudice the defence with the jury.</p>

<p> Mortgage on, crop invalid as against grantee without reservation. </p> <p>A transfer of the legal title of land without reservation passes the title to crops growing thereon at the time of such transfer, and a subsequent chattel mortgage of such crops by such grantor, though still remaining in possession, will pass no rights as against one claiming under the grantee in the conveyance of the land.</p>

<p>Appeal from Calhoun.</p> <p>Bill to discharge mortgage. Complainant appeals.</p>

<p> Common use of premises by owners in severalty. </p> <p>W. and I. owned a building in severalty, W. having the north half and L the south. The building had a common entrance and stairway to the second floor, but above the first story a partition wall divided it. W. having leased his portion to I. for a term of years cut doors, for the lessee’s convenience, through the partition and ran a stairway from the second to the third floor on his own premises. The only hall-way on the second floor was on I.’s side. When the lease expired I. plastered up the doors in the partition wall and refused to allow W. to use the hall-way on his side. There was no satisfactory showing that the arrangements made for the lessee’s convenience were intended to survive the lease or that I. had estopped himself from objecting to W.’s use of his part of the premises thereafter. Held, that W. could not claim any easement in I.’s premises after the termination of the lease, and could not maintain an injunction bill to restrain I, from obstructing his use of the hall-way.</p>

<p>Error to Superior Court of Detroit.</p> <p>Trover and trespass de bonis asportaUs. Defendant brings error.</p>

<p>Probate appeals — Letters of administration — Statement of claim — Jwisdietion — Hearsay—Ownership of intestate’s estate — Contradiction of impeaching testimony — Evidence of amount of hay crop — Preswmption of delivei'y of deed.</p> <p>It is suggested that there ought to be some statutory limitation upon the time allowed for taking out letters of administration.</p> <p>On appeal from commissioners on an estate the probate claim need not be put in the form of a declaration; the case cannot be enlarged, and no claim can be heard that was not passed on by the commissioners.</p> <p>The circuit courts have no original jurisdiction over claims against estates.</p> <p>On probate appeals from commissioners on claims against estates, it is the safer practice to confine the jury’s attention to the items on which testimony is offered as they are introduced during the trial, rather than to permit pleadings to be read to them which include items that they cannot properly consider.</p> <p>In prosecuting a claim against the estate of a son for articles converted by him while living on the estate of his father, a daughter of the plaintiff’s intestate after stating that the mother “stayed right there at her own home” was asked “and [the son] took the whole thing and ran it and carried it on?” Held, tfiat this question called for the deductions of an interested witness upon a subordinate issue which belonged to the jury, and that it led too far and its allowance was erroneous.</p> <p>Where individual witnesses, in testifying to the reasons of several joint parties for delaying in (lie presentation of stale claims, speak in 'the plural number, their testimony, so far as it involves merely the knowledge or opinions of others than themselves, is hearsay.’</p> <p>Testimony that the family of an intestate continued to occupy the estate together, and one of the heirs paid the household expenses, does not warrant the submission of the question whether he claimed to own the property.</p> <p>A witness who has denied making a statement properly identified cannot contradict impeaching testimony on this point by showing that he had no such idea as is expressed by such statement.</p> <p>The amount of hay raised on a farm in a given year cannot be proved by showing the average acreage of grass land and its yield in other years.</p> <p>The delivery'of a deed is presumed from its having been executed, acknowledged and recorded and from possession by the grantee or beneficiary under it, unless there are facts against the presumption.</p>

<p>Judicial notice of foreign primate charters — Warner of contract conditions— Proof of corporate character — Powers of foreign corporations — Subscription and agreement for substituted payment — Amendment of declaration by adding special counts.</p> <p>In an action based on a contract made with a corporation chartered in another state, the court cannot take judicial notice of the laws under which the corporation was chartered, and they must be proved and its charier produced before the rights and liabilities of the parties can be determined.</p> <p>Waiver of conditions of a contract is a question for the jury.</p> <p>Failure to prove corporate character may be obviated by proof of .dealings which recognize it, but such proof is not enough where the question is as to the existence of powers and privileges which are not necessarily implied by corporate existence but depend on the franchises actually conferred.</p> <p>A foreign private corporation cannot establish a liability upon any act done by it as a consideration for a benefit to it, if it is an act which domestic corporations cannot do without authority of law (Comp. Laws § 6548) such as its removal from place to place, or the establishment of branches, or the acquisition of real estate, or going into business outside of the scope of its granted powers.</p> <p>In Michigan, courts take judicial notice of all statutes, and when they know under what law a corporation exists, they know its powers and the limitations thereon; but they can know nothing of the purport of a foreign law until it is proven.</p> <p>In an action based on a subscription and an agreement for a substituted payment, the transactions relating thereto and the considaration and agreements for the subscription must be construed together in determining the obligations of the respective parties.</p> <p>A declaration on the common counts can be amended on a new trial by the insertion of special counts.</p>

<p>Appeal from Emmet.</p> <p>Bill to compel conveyance. Complainant appeals from dismissal of bill.</p>

<p>Appeal from Jackson.</p> <p>Injunction. Complainants appeal.</p>

<p>Criminal conversation — Impeaching questions — dates—Husband's right of action — Hxemplwy da/mages — Costs.</p> <p>Impeaching questions as to a conversation with a particular person at a place named cannot be put unless the time and substance of the alleged conversation are also pointed out.</p> <p>Defendant in an- action for criminal conversation introduced testimony to show that plaintiffs wife was subject to fits of stupor and insensibility and was afflicted with hysteria, and showed by experts that persons so troubled were subject to hallucinations and unreliable. Held proper for the plaintiff to show by the evidence of relations and their neighbors that they were well acquainted with his wife and frequently at his house and never saw or heard of her having “unconscious spells.”</p> <p>Where an action is brought for criminal conversation and only one act is charged, the plaintiff is not confined to a specific date, but may show that it was committed at any time within the period of the statute of limitations; and this, too, whether the defendant does or does not rely on an alibi.</p> <p>Exemplary damages for injury to the plaintiff’s feelings are recoverable in an action brought by a husband for criminal conversation with Ms wife; and they need not be susceptible of proof at a money standard, but may be fixed by the jury in view of all the facts.</p> <p>The right of a husband to recover exemplary damages for injury to his feelings because of an act of criminal conversation committed by defendant with Ms wife, grows out of the marital relation and is independent of the wife’s right to recover damages on the same ground in an action brought by herself for the same wrong.</p> <p>No more costs than damages, if the damages do not exceed $50, are recoverable in an action brought by a husband for an assault upon his wife whereby defendant compelled her to an act of criminal conversation. Comp. L., § 7888.</p>

<p>Deed of mw'tgaged lands — Covenant of warranty — Variance.</p> <p>A deed conveying land subject to a mortgage and containing a covenant against all encumbrances except that, conveys only the equity of redemption; and a further covenant of warranty only covers the interest conveyed.</p> <p>Where a declaration for breach of warranty sets forth a deed of the whole title with warranty equally broad, a deed which conveys subject to a mortgage and which covenants against encumbrances except as described, and contains, besides, a covenant of warranty, is materially variant and unless plaintiff obtains leave to amend his declaration is inadmissible as evidence to support it.</p>

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

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

<p>Possession as notice of transfer of land — Recording laws.</p> <p>Possession and occupancy of land by a grantee is not sufficient notice to subsequent purchasers to answer the purpose of recording the deed, if it is not open, manifest, unequivocal and apparently by virtue of the unrecorded conveyance. So held where the grantee was the grantor’s husband and continued to live on the premises with her.</p> <p>The design of the recording laws is to prevent fraud in real estate transactions by securing certainty and publicity in such dealings, and purchasers should have their conveyances seasonably recorded.</p>

<p>Fraudulent marriage — Bights of the wife — Laches.</p> <p>The defendant many years since intermarried with one John Allen supposing him to be a bachelor. A year later he told her he was a widower when married, and had two children in Ireland. At defendant’s suggestion he sent for the children, and they were received and brought up by defendant with her own. Afterwards lands were purchased and conveyed to Allen and the defendant as husband and wife, which under the statutes of the State, if they were husband and wife in fact, made them .joint tenants. Allen, having become embarrassed, his interest in these lands was seized and sold on execution and bid in by a friend at his request but without any promise that Allen might redeem. Allen died, and defendant took out letters of administration and settled his estate. She also procured the purchaser at tlie execution sale to convey to her, on being repaid, the purchase price with interest. The lands were then of little value, but afterwards increased in value largely. Until Allen’s death defendant always supposed she was his lawful wife.</p> <p>Eleven years after defendant procured the last-mentioned conveyance, the two children of Allen, who were brought on from Ireland, filed their bill in equity, setting forth that their mother was living and not divorced from Allen at the time of the marriage with defendant; that defendant was consequently never the lawful wife of Allen; that the procuring by defendant of a conveyance to herself of the land sold on execution was a fraud upon complainants who were the lawful heirs of Allen; that defendant holds the land in constructive trusts for them; and praying that she be decreed to account for rents and profits, and to convey. No excuse for the long delay was offered.</p> <p>Held, that the case was without equity; the deed taken by defendant only placing the title where but for the fraud upon her in the marriage it would have rested.</p> <p>Held, further, that the long and unexplained delay in moving to take advantage of the alleged fraud was of itself conclusive against the relief sought.</p>

<p> Trover by mortgagee. </p> <p>Where chattels owned by one partner but used by the firm without being converted into partnership assets, were mortgaged by the other partner without the owner’s knowledge, and were sold by the mortgagee under the mortgage, a former mortgagee from the owner can maintain trover against the later mortgagee for their conversion.</p>

<p>Answers to special questions — Personal knowledge — Notice of taking testimony — Suit by ma/rried tooman against the grantee of her husband and herself — Refusal of new triad.</p> <p>It is no ground for reversal that the jury returned no answers to special questions as to facts that were purely collateral and were not involved in the real issues.</p> <p>Where a witness in testifying to the best of his knowledge and belief refers to matters which in a previous answer were so stated as to indicate personal knowledge, it is for the jury rather than the court to determine whether he is speaking from personal knowledge.</p> <p>Comp. Laws, § 5894, provides that notice of taking the testimony of a specified witness may be given to the opposite attorney. Held proper that the time allowed under such notice be computed with reference to the distance of the attorney from the place of examination, when he is nearer than the party.</p> <p>Where the time allowed in giving notice of an examination of witnesses barely exceeds that prescribed by statute, the notice is not invalid, though the indulgence of the court may be needed in allowing a party taken by surprise to be required to meet it, especially if it had been left at such an hour that he could not promptly act upon it.</p> <p>Notice of taking a deposition may be left at the residence of the person to be served therewith if he is not to be found in the county. Act 210 of 1879. Held, that any constructive service otherwise made is not good unless seasonably brought home to the proper person, even though, where notice was to be given to an attorney it was served at his office upon his partner.</p> <p>A married woman sued the grantee of property deeded to him by her ' husband and herself, for a part of the consideration which she claimed was to have been paid to her under an agreement among them. Held, that her- testimony concerning the arrangement by which her husband proposed and agreed that she should have a share of the proceeds if she would join in the deed and .convey her dower, was not foreign to the issue and was material in proving the contract on-which she brought her action.</p> <p>The Supreme Court will not consider errors assigned on the refusal of the court below to grant a new trial.</p>

<p>Questions of fact — Possession of lands — Common source of title.</p> <p>"Where no requests for instructions have been submitted and no exception taken to the final result, there can be no question raised as to the sufficiency of the facts to support the judgment, or as to the judge’s conclusion of law.</p> <p>Where special findings are needed to bring the facts on the record, but have not been asked for, the Supreme Court will not review the testimony as a means of ascertaining the facts.</p> <p>It is not open to a defendant to claim that a point essential to the case against him was not made out where he himself supplied the omission in making his defence.</p> <p>Where a case is tried without a jury, it is the-exclusive province of the judge to pass upon the testimony after its admission and make the necessary inferences from it, and his conclusions as to its weight and bearing are not reviewable.</p> <p>Where both parties to a summary proceeding to recover possession of lands trace title to the same person and claim under him, there is sufficient^ privity of estate between them to sustain the proceeding.</p>

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

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

<p> Claim for reward offered for evidence. </p> <p>A bank had a claim against an individual who purported to have conveyed away certain property by a deed dated in 1872. An attorney who had discovered certain facts while prosecuting a claim against the same person, agreed with the bank for $100 to put it in possession of evidence or information which would enable it to collect its claim, and then showed facts indicating that the deed was fictitious. There was evidence tending to show that, by means of his knowledge, the bank obtained payment of its claim through proceedings against the property conveyed. Reid, in an action for the reward, (1) that defendant’s claim that furnishing the means of getting proof was not furnishing evidence, was unreasonable; (2) that the information was of a kind that in the nature of things could not be shown by documents alone; and (3) that it was for the jury to determine how far it was unknown, and whether the evidence established the plaintiff’s demand.</p>

<p>Appeal from Wayne.</p> <p>Bill of foreclosure. Oross-bill to compel discharge of mortgage. Decree granting foreclosure and dismissing cross-bill.</p>

<p> Special questions to the jw'y. </p> <p>Special questions were submitted to a jury bearing upon the liability of defendants as partners. If answered in one way such a liability could not be established. They gave a general verdict for the plaintiffs but returned that they were not able to agree upon any of the special questions. Comp. Laws, § 6026 makes the special findings control the general verdict. Held, that a direction by the court that having found a general verdict they were bound to answer the special questions in harmony with it, and instructing them how to frame such replies, was error, as its effect was that the court and not the jury decided the material issues.</p> <p>Special questions to the jury are to enable the court' to learn what view they take of the material issues and to correct wrong inferences from the facts which they find to exist.</p>

<p>Application of payments — Decree for debt matured, pending foreclosure.</p> <p>A man gave two promissory notes, dated alike and secured by a mortgage, though one of them was also secured by surety. Held, on foreclosure, that the one secured by mortgage only must be first satisfied before the proceeds of a sale of the land could be applied to the payment of the other.</p> <p>"Where a mortgage securing two notes is foreclosed before one of them, has fallen due, its amount may nevertheless be included in the decree, if it falls due before the decree is rendered.</p>

<p>Appeal from Midland.</p> <p>Injunction against waste.</p>

<p>Trover for machinery — Befusal to deliver — Bvictence of convmdkon.</p> <p>A man bought a steam engine and other machinery to put into a mill which he was building, but it was expressly stipulated that title thereto should not pass until it was fully paid for. He afterwards sold the mill to his uncle without having paid for the machinery, and the owner thereof, after demanding it, brought trover for it against the purchaser. It appeared that defendant knew his nephew was embarrassed and had indorsed his paper and took the property to save himself. Held proper, in support of the action, to show that before buying, defendant had a conversation with plaintiff in which he admitted that he knew there was something about the latter’s claim; that his nephew had not paid for the machinery; that defendant had been to see if iffaintiff had any chattel mortgage on it and did not find any; and that when he purchased he had not said anything to his nephew about the matter or asked him if plaintiff was paid, and had not said anything to plaintiff though he had frequent opportunities to do so.</p> <p>Where machinery is sold to be set up in a mill, but with a stipulation that title shall not pass until it is paid for, and without the vendor’s knowledge it is so attached to the realty as to make it, under ordinary circumstances, a fixture, and before it is paid for the property is sold to some person who had sufficient knowledge of the owner’s claim to put him on inquiry, trover will lie for the conversion of the machinery.</p> <p>Where a demand for property is made before bringing trover, and defendant replies that he neither admits nor denies the claim and shall not consent to plaintiff taking away property nor forbid him to do so, there is a sufficient refusal to establish a conversion.</p>

<p> Payment of penalty precludes review on certm'wi. </p> <p>{J&i'tioran'i will not lie to bring up proceedings for the collection of a penalty under a municipal ordinance if tire penalty has been paid.</p>

<p>Appeal from Manistee.</p> <p>•Bill to redeem from foreclosure. Defendant appeals.</p>

<p>Remission of excess in judgment — Action on school-teaching conti'act — Proof ,of teacher’s qualifications — Competency of 'schoolrdistrici officers to contract with'teactws.</p> <p>Where one who has recovered judgment in justice’s court for more than $100 remits the excess to save a reversal and the case is nevertheless appealed, it cannot thereafter be claimed that plaintiff had released so much of the demand in suit as had been remitted.</p> <p>In a suit by a school-teacher on a contract of hire, the plaintiff is not bound to make proferí of her certificate of qualification and it is not error to allow her to give parol proof that she has one.</p> <p>In an action by a school-teacher on a contract of hire it was alleged as. error that the contract was allowed in evidence without proof that those who acted for the school-district in making it were not authorized, and that the court charged that it was valid. Held, that this allegation did not sufficiently present the objection that the officers-of the district were not competent to bind it by a contract extending beyond the current year especially as there was evidence that the officers were in possession and presumptively competent and there was no evidence that they were not authorized to employ teachers.</p> <p>An assignment of error must be supported by an exception.</p>

<p> Injunction to restrain expenditures by municipal counoil foi' public buildings. </p> <p>_A bill will not lie to restrain the common council of a municipal corporation from putting up suitable public buildings for' the purposes of city officers if the provisions of the charter do not prevent it.</p> <p>'The citizens of a municipality cannot confer upon the common council functions not left with them by the charter.</p> <p>■Courts cannot interfere with the discretion of municipal bodies in the expenditure of public funds unless it has been plainly abused and practically exceeded under pretence of keeping within their charter powers.</p> <p>■City charters must be rationally construed as intended to create corporations which shall resemble in their essential character the class into which they are introduced.</p> <p>"The Constitution of Michigan contemplates that the Legislature shall create cities and other municipalities with full powers of beneficial legislation; and when the Legislature prescribes the limit of financial action it must be assumed to permit all reasonable and proper expenditures within those limits.</p> <p>Interference by injunction should not be allowed where the delay may work great damage, without making full provision for redress by an adequate injunction bond.</p>

<p> Trover ly wife for animal seized ly pouncPnaster </p> <p>The statute which empowers a married woman to maintain suit in her own name, for property of her husband which he cannot encumber without her consent, or which is exempt by law from sale on execution or other final process of a court, does not limit her right to cases in which the husband has encumbered the property, or in which it is taken on final process of a court.</p> <p>If therefore a pound-master shall unlawfully seize and convert an exempt animal belonging to the husband, the wife may sue in trover for the value.</p>

<p>Simultaneous writs of summons — Technical irregula/rities — Time of filing declaration — Proof of non-appewi'ance.</p> <p>Where two writs of summons were simultaneously issued in the same case by different officers, the plaintiff in error, in a record that exhibits them only as allied proceedings in one case, cannot claim that they began two distinct suits, if only one was practically instituted. And the defect in procedure is within the statute of amendments. Comp. L. § 6051, subd. 1.</p> <p>Circuit court rule 16 requires that in suits begun by ori^hal writ the declaration shall be filed within twenty days from the return-day of the writ and the defendant shall have ten days thereafter in which to appear. Held,, that where the declaration was not filed till the twenty-first day after the return-day and default was entered on the thirty-first day and a few hours less than ten days, and there was no reason to suppose that there was any intent to appear or that defendant was prejudiced, error would not lie for the defect in practice. Comp. L. § 6051, subd. 13.</p> <p>An entry of default for non-appearance without filing express proof of the failure to appear is not ground for reversal on error, where there has been in fact no appearance and the defendant is not prejudiced. The' omission to file this proof may be cured nunc pro tunc in the lower court.</p>

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

<p>Appeal from Livingstone.</p> <p>Bill to reform deed.</p>

Case made from Jackson. Assumpsit against defendants as sureties for the payment of a debt evidenced by a bond given by them as trustees of the First Methodist Episcopal Church of Jackson. Defendants had given a contract of suretyship to plaintiff’s intestate dated February 1, 1868, and this agreement was twice extended by contracts dated February 1,1873, and July 31, 1879.

<p>Conditions subsequent— Waiver, by allowing condition to be disrega/rded.</p> <p>Conditions subsequent, tending as they do to destroy estates, are to be strictly construed.</p> <p>A grantor who, without objection, allows the land conveyed to be used in violation of a condition subsequent, by which a forfeiture thereof might be claimed, and permits valuable improvements to be thereafter erected thereon, will be deemed thereby to have waived his right to enforce the condition for such violation.</p> <p>Where a condition in a conveyance evinces no intention of actual or substantial benefit to the grantor, it is merely nominal, within the meaning of Comp. L. § 4113.</p> <p>A condition in a conveyance by which the land is to revert to the grantor, should it ever be used for the purpose of carrying on the sale of intoxicating liquors, cannot be enforced if the grantor permits such use to be continued and valuable improvements to be thereafter erected thereon without objection, or if no substantial injury ’is individually sustained by him in consequence of such use.</p>

<p>State printing contracts — Advertising for bids — Bidders’ bonds.</p> <p>Where the law requires the public printing to be let to the lowest bidder, an advertisement inviting proposals for doing fifty or more kinds of work at rates to be specified for each, but all the proposals of a bidder to be taken together as a single bid, and which gives no basis on which it is to be determined which bid in the aggregate is the lowest, does not accomplish the purpose of the law, and therefore is not in compliance with it.</p> <p>Where the different kinds of work have no necessary connection with each other, guare whether the bids should not be entirely separate. But in this State the Board of State Auditors has undoubtedly considerable discretionary authority in determining how bids for State printing shall be invited, and as there are some conveniences in haying all the work done l)y the same person, it cannot be said as matter of law that they have no right to combine the proposals.</p> <p>The State Board called for proposals for all kinds of printing as one bid, without any estimate of the different kinds of work, and without indicating any basis on which the Board might determine who was lowest bidder. The relator and others sent in bids, and the Board awarded the contract to another than the relator, professing to ascertain which bicl was lowest by taking as a basis the printing for the two preceding years. The relator, on a showing that the public and the bidders had no means of making estimates on such a basis, and no reason to suppose it was to be adopted, and on a claim that its bid on any fair estimate was lowest, and that the letting was void, applied for a mandamus to compel the Board to invite new proposals. On the showing, it appearing that the Board had fol- . lowed the practice of its predecessors — Held: (1) That as there was nothing to impeach the good faith of the Board,, and as there was no reason to believe the difference in favor of relator’s bid, if any, was insignificant, the court on that ground might decline to interfere. (2) That the relator, having participated in the lettings and made no objections until after the Board had announced its decision, was not then in position to dispute, in his own interest, the validity of the previous action. (3) That the court might properly refuse to interfere by mandamus since the effect might be indirectly to annul a contract; and mandamus is not a proper proceeding for that purpose.</p> <p>In receiving proposals for public printing the Board is required by law to take from each bidder a bond with sureties conditioned that if the contract is awarded to him he will enter into it or pay damages. Such a bond should be approved before the biddings, and it is improper for the Board to leave it for consideration afterwards. But the Board having left the bonds without examination until after opening the bids, and the bond of the lowest bidder being defective, held, that it was not the right of other bidders to insist that the Board should not suffer the successful competitor to perfect his bond at that time.</p>

<p> Stenographer’s Salrn'y. </p> <p>Tlie three counties comprising a judicial circuit, through, their board of supervisors, assented to the employment of a stenographer without stipulating as to his compensation, and this under the statute left his salary at $2000. This sum was apportioned among the counties and paid for four years, when one of the counties was detached from the circuit. Held, that the previous assent of the counties to the employment of a stenographer at the statutory salary did not continue to be binding after this change, but that they were entitled to make new arrangements.</p> <p>One of the counties continued without objection for three years to pay its proportion of $2000, but the supervisors then voted to reduce the sum to be paid by them to $600. The stenographer received this without protest for four years, when the supervisors withdrew their assent to the employment and refused to pay longer. Held, that under these circumstances it must be deemed that no arrangement has been made, except so far as one party has paid and the other received money in satisfaction of services previously rendered.</p>

<p>Appeal from Saginaw.</p> <p>Bill filed by wife for separate support. Defendant appeals.</p>

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

<p> Oondemnation proceedings—Juror’s oath. </p> <p>Proceedings to condemn private property will be quashed if the record does not show that the jurors impaneled to determine the necessity for taking the property and the compensation to be paid for it, took, before acting, an oath covering these constitutional duties. They are not required to recite their oath in their report, and such recital is not sufficient proof of it.</p> <p>It seems that it is not enough for jurors in condemnation proceedings to swear that they will “examine and determine the necessity of locating and constructing a ditch described as follows ” etc., as the Constitution requires them to determine the necessity of taking land therefor, and the compensation to be paid for it.</p>

<p>Appeal from Kent.</p> <p>Bill in aid of execution. Complainants appeal.</p>

<p> Breach of condition in lease against re-leasing. </p> <p>The lease of a building excepted all the upper story but the front room, and stipulated that if the tenant re-leased, or assigned the lease, without the landlord’s written consent, the latter might re-enter. Held, that a license from the tenant to a third person to use a single-apartment on the ground floor for thirty days, or even a sub-lease of the apartment for such a period, was not a breach of the condition, and that even if it was, the landlord was bound to show that it was without his written consent before he could recover possession of the premises in summary proceedings.</p>

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

<p>Contradi to deliver hay — Seasonable time,</p> <p>A contract for the sale of hay, dated Sept. 25, stipulated that it was to be delivered in a reasonable time after being pressed. The purchasers did not call for the hay to press it until the 22d of November, when the vendor refused it, and they sued him on the contract. Held, that plaintiff’s delay was unreasonable.</p> <p>Where a written agreement to furnish merchandise does not state when it is to be furnished, evidence of a contemporaneous parol agreement fixing the time is inadmissible.</p>

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

<p>Removal of officers by boa/rd of supervisors — Notice of proceedings — Superintendents of the pom• — Certiorari—Affidavit of merits — Allegations of error.</p> <p>Act 165 of 1877 permits a board of supervisors to remove an officer appointed by it on charges preferred to the Board, or its chairman, and after notice of the hearing and a copy of the charges has been delivered to the officer, and full opportunity has been given him to be heard in his defence. Held, that as to time and notice o£ hearing the board does not act as an ordinary court but as a public board authorized to use their own time and methods, subject only to the condition that no one shall be removed "without charges and reasonable notice, nor without a full opportunity to be heard; and a service on August 7th of a copy of charges and notice of meeting to be held August 18th to investigate them, was held sufficient though made on the authority of two supervisors without a meeting of the Board.</p> <p>It is misfeasance in office for superintendents of the poor to draw orders on the County Treasurer in favor of persons without whoso knowledge they themselves draw the money, and compel the payees to take from themselves at exorbitant prices such goods as they see fit to give them; or to use their official power and the poor fund to coerce the recipients of their favor to vote under their dictation; or not to refund to the treasurer money which has been repaid to them by persons to whom they have afforded temporary relief.</p> <p>A board of supervisors need not meet for the mere purpose of ordering notice to be given of a hearing of charges against officers appointed by them.</p> <p>Certiorari is largely a discretionary writ and should not be allowed to disturb the action of public bodies entrusted with managing local concerns, unless on.grounds indicating that actual wrong has been done.</p> <p>An allegation as error that a motion to quash a complaint was overruled is enough to raise the sufficiency of the charges as laid.</p> <p>An appellate court cannot notice points made on argument but not alleged as error.</p> <p>On certiorari to review the action of a board of supervisors in a matter of such importance as the honest use of public money, the party applying for a review should at least swear to merits.</p>

Assumpsit on the common counts and an account stated to recover back money which plaintiff claims to have paid defendant upon an extortionate charge for his professional services. Defendant brings error.

<p>Inducing wife to lea/oe husband — Letters between husband and wife to show affection.</p> <p>A father and mother were sued by their son-in-law for enticing their daughter from him and alienating ■ her affections. The evidence showed that the marriage of the young people was clandestine; that the antecedents of the man had not been reputable; that at the time of the marriage it was agreed that it should be kept secret, and the wife remain with her parents for a year, but the husband soon disclosed it; that the parents were greatly agitated and excited when they were made acquainted with the facts, and the father threatened violence if the daughter was taken away at once, but said that, after a week’s delay, if she saw fit to go, no obstacle should be interposed; that before the week expired she expressed dislike and repug-. nance to the husband, and determined to stay with her parents; and there was no evidence of compulsion or solicitation, or of utterances by the parents which the conduct of the son-in-law did not merit. Held, that upon this evidence the court might well instruct the jury that there was no case for their consideration.</p> <p>The plaintiff, without having given evidence tending to show that the parents had improperly interfered with his family concerns, was allowed, under objection, to put in evidence his wife’s letters to show her affection for him. Held, that until there was evidence of misconduct on the part of the parents the state of the daughter’s affections was immaterial; that the objection to the letters was, therefore, valid at the time, and as it was not obviated by any subsequent showing against the parents, the judgment rendered in favor of the plaintiff should be reversed upon that objection.</p>

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

<p>Agreements referring to void eont/raets — Bmdenee.</p> <p>■ A verbal agreement is valid so far as it hhs been carried out, even though, when made, it referred for its terms to another contract not then signed and not, in fact, signed aftewards, and therefore, invalid. Nor can such an agreement be so revoked as to undo what has been earned under it.</p> <p>Where a parol agreement adopts as a standard a proposed contract not then in writing, the fact that the latter was never executed does not make it inadmissible to show, by reference, what the terms of the agreement were.</p> <p>A logging contract with, the owners of certain pine lands provided that they were to sell the other parties, on certain terms, all the white pine the latter should cut from the lands before a certain date. The-signing of the contract was delayed, but meanwhile the parties made a verbal agreement that the purchasers should proceed with their lumbering. The original contract was not signed after all, and the owners of the laud replevied the logs which the other parties had got out and forwarded to buyers, whereupon the purchasers sued for damages. Held, that the plaintiffs were entitled to all the interests which they had earned under their parol agreement so far as-they had executed it, whether it made them agents or equitable owners, and that they could recover their agreed compensation, or the money had and received by defendants to their use, or such damages as might appear, according to the nature of the agreement;, the case was one for the jury.</p>

<p>Mnality of orders — Temporary alimony — Committal for contempt — Wife’s separate property.</p> <p>An allowance of temporary alimony to maintain a wife while prosecuting a suit for divorce and to enable her to obtain counsel, can only be granted where it is made to appear, by the bill of complaint or by petition, that the wife has no separate property of her own, and that the husband has property.</p> <p>The presumption that a wife has no separate property cannot be entertained in Michigan.</p> <p>An order for temporary alimony is not appealable.</p> <p>An order committing a defendant for contempt in refusing to pay temporary alimony is appealable.</p>

<p>Specific performance — Agreement with party not holding full title.</p> <p>A father verbally gave his son a tract of land and put him in possession, and the son made improvements on it, and grew a crop of wheat. A person seeking to buy the land bargained with the son, whose rights he knew, but failing to agree with him, closed a contract with the father which it was agreed should be kept from the son’s knowledge. The father afterwards refused to give a deed except subject to his son’s claim for the wheat crop, and the purchaser filed a bill against him for'specific performance. Held, that the bill was properly dismissed. The son was not a party and could not be bound by a decree. Complainant knew the father could not sell such interests as the son owned, and having no equities could not ask a court of equity to create complications in the title, but should be left to seek a remedy at law.</p>

<p>Bill in aid of execution must be filed before sale — Pwi'chasers on execution not proper complainants.</p> <p>A. bill in aid of execution must be filed before the sale of the premises thereon.</p> <p>A bill to set aside a conveyance made in fraud of creditors is aimed at defendant’s legal title to the premises as against his creditors, and not merely at his equitable interest therein.</p> <p>An execution creditor, after buying in the property, filed a bill to set aside a conveyance which the debtor had made to his wife before the date of the judgment, and of which the complainant had full knowledge. Held, that the bill should have been filed before the sale.</p> <p>Purchasers at an execution sale of the defendant’s interests, have no equity to file a bill to set aside a conveyance in fraud of creditors made by him before the date of the judgment.</p>

<p>Violation of municipal ordinance — Appeals—Statute of amendments.</p> <p>Where a city charter authorizes a city to prosecute civil suits iu its own name, for the violation of city ordinances, a criminal prosecution before a justice for the violation of an ordinance, cannot, on appeal, he transformed into a civil suit, nor can the original criminal sentence he affirmed on the civil side of the appellate court.</p> <p>A change of style in appealing a criminal prosecution so that the case on appeal shall appear to he a civil suit, introduces a fatal contradiction of the record, and the defect cannot he cured hy the statute of amendments.</p>

<p>Fraudulent purchase — Suirender of purchaser's note — Proof of complicity— Estoppel from repudiating title— Waiver by delay.</p> <p>Under a declaration charging in one count that defendant has defrauded plaintiff of a horse, and in another, that he has wrongfully converted it, testimony of fraudulent purchase and conversion is available for-both counts.</p> <p>One is not estopped from repudiating the title of a defendant whom he charges with having obtained the property from him by false pretenses.</p> <p>Where a purchaser commits a fraud in giving his note in payment, the defrauded party is not bound to surrender the note before suing him for the fraud if the note is the defendant’s personal, unsecured obligation, and is needed as evidence of the fraud.</p> <p>Delay in suing for fraud does not of itself necessarily bar the suit, if it does not come within the statute of limitations.</p> <p>Waiver, by delay, of the right to sue is a question of fact and not of law in all controversies that are not within the statute of limitations.</p> <p>Complicity in fraud with joint defendants against whom there is direct evidence, is provable by showing that all the defendants have been engaged together in similar transactions and that the act was done under a general agency for the particular defendant, who had previously proposed to participate with the others in a series of frauds of the same character.</p> <p>A particular fraud cannot be proved by presumption alone; but where the fraudulent act is shown to have been committed by one or more persons, presumption is admissible to show the complicity of others who have authorized or procured its commission.</p>

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

<p>Error to Ingham.</p> <p>Case for libel. Plaintiff brings error.</p>

<p>Error to Kent.</p> <p>Proceedings under Comp. L. ch. 211 to recover possession of lands. Defendant brings error.</p>

<p> Fraud in exchange of real estate. </p> <p>A bill was filed to set aside an exchange of real estate for fraud in representing defendant’s lot to be unencumbered, and the main defence was that complainant’s land was also encumbered. Defendant had sold the land obtained on the trade to a purchaser who had connived in the fraud. It appeared that the encumbrance on complainant’s land was a mortgage which covered some adjacent property, and that the latter had been sold subject to the entire mortgage; and it was not shown that this mortgage had been concealed. Held, proper to rescind the bargain, and that, under the prayer for cancellation and general relief, it was proper to decree that conveyances be made to restore the title.</p>

<p> Warranty of merchandise. </p> <p>Suit was brought on a note given for a reaper, which the vendor had warranted to do first-class work. The warranty purported to bind the purchaser to give reasonable notice of .defects to the vendor or his agent, and provided that if the latter did not remedy the difficulty the machine was “to be returned ” and replaced, or the money or note refunded. It was not signed, however, by the purchaser, and was silent as to the manner and place of delivery in case the machine should be returned. The vendor and his agent lived at different places. Held, that the court could not say at which place the machine must be returned, and that when the purchaser had given notice of defects to»the vendor or his agent, it was the latter’s duty to remedy them or furnish a perfect machine, and if he claimed that it was all it had been represented to be, the case should have been submitted to the jury on that issue, irrespective of the purchaser’s failure to deliver the machine again to the vendor.</p>

<p>Trespass for sheriff’s entry — Trover for comersion by levy.</p> <p>Trespass will not lie for a sheriff’s entry to make a levy if a judgment in trover has already been recovered against him for the conversion of the property taken thereon.</p> <p>A sheriff’s entry to make a levy is justified by his process though the levy is wrongful; and the execution debtor, in bringing trover for the property seized, elects to sever the seizure from the act of entry, and cannot thereafter bring trespass for the latter.</p>

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

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

Ejectment by Horr against Bennett for part of a tract granted by the United States to James Biley, in 1819, but not traced from Mm to either party, The case involves the same title that was disputed in Gamble v. Horr JO Mich. 561, where the substantial facts were that Horr, being the assignee of a mortgage given by Gamble upon the premises in suit, foreclosed it and became their owner when the period of redemption expired, and then sought to eject the heirs of the mortgager…

<p>School-districts — Recognition of equitable clawns — Issue of bonds — Rescission of corporate acts.</p> <p>A school district in its annual meeting may lawfully recognize and pay equitable claims even though they are not strictly legal demands against it.</p> <p>A vote to issue school-district bonds in settlement of a demand, if in .excess of the limit fixed by law, may be sustained up to the legal limit.</p> <p>A corporate act which can only be taken by a two-thirds vote, cannot be rescinded by a bare majority.</p>

<p>Liquor taco not payable in notes — No local option.</p> <p>The note of a liquor-dealer, payable on time, cannot be received in satisfaction of the liquor tax imposed by Acts 228 of 1875 and 197 of 1877, and if taken in payment thereof, is void as in violation of public policy.</p> <p>The tax imposed upon liquor dealers in Michigan, is not a mere debt but a condition precedent to making sales, and a liability which county-officers must enforce by summary collection to be made by continuous renewal of warrants, if necessary, and, in case of non-payment, by criminal prosecution.</p> <p>The liquor tax in Michigan was not imposed for the primary purpose-of increasing municipal revenues, but to restrain the sale of a dangerous commodity, and confine it to the hands of responsible parties-who can make good such claims as are laid on them.</p> <p>A community cannot determine for itself, in Michigan, whether the liquor tax shall be collected; the duty of the county officers to make collection is absolute.</p>

<p>Express Companies — Negligence in delivery — Costs for prolixity.</p> <p>A concert singer contracted with certain persons to give a concert at a certain point, and the latter expressly stipulated that she should furnish them the posters announcing it, not later than the 21st inst. The posters were printed in another town, and were delivered to the express company on the evening of the 20th to be forwarded. The person in charge of the express office was told that the forwarders wanted the package to go on “No. 5,” in order to make connection, as they wanted the package and did not want it to be delayed. Nothing was said about its contents or purpose or any necessity for its delivery next day, nor was any departure from the usual course of business asked for. The package was sent by train No. 5, but owing to the running arrangements it did not reach its destination until the evening of the 21st, and could not be delivered until the next day. The parties who had contracted for the concert accordingly cancelled the arrangement, and the concert singer, claiming to be injured in consequence, sued the express company for negligence in not making seasonable carriage and delivery of the package. Reid, that the action could not lie.</p> <p>Half the cost of printing the record was denied the prevailing party on account of its needless prolixity. Sup. Ct. Rule 59.</p>

<p>Municipal officers — Mandamus to compel payment of salary — Extrarofficial services — Recovery of money paid by mistake — Burden of proving error.</p> <p>Mandamus is the proper remedy to enforce the payment by a municipal corporation of an official salary, the amount of which is fixed.</p> <p>A city officer is entitled to be paid for acts done, under appointment of the common council, outside of his official duty.</p> <p>A common council passed a resolution appointing a committee of its members to act with the city attorney, police justice, and chief of police, to revise the ordinances. The police justice was not, as such, a servant of the council, nor subject to their directions in rendering unofficial' services. Meld, that as he was appointed by a resolution of the council the committee had nothing to do with his employment beyond directing the labor, which, however, would bear on the amount of his services; nor were his duties imposed by the city attorney; he therefore had a right of action against the city for com-, pensation, and it was error to charge that he was entitled thereto if the council accepted and adopted the revision, as if that was a condition of his being paid for his labor. So also with extra-official services in aiding the City to collect money from the county, unless his services were meant to be gratuitous.</p> <p>A municipal officer who claims to recover from the city money which he has paid to it by mistake, has the burden of showing the mistake and the over-payment; but no different weight of evidence is required than in any other civil issue.</p>

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

<p> Promissory note—Construction—Parol evidence. </p> <p>Suit by tbe heirs of tbe payee against the maker upon tbe following paper: “February 18, 1873. For money received I promise to pay Alma A. Chamberlain four hundred and thirty-five dollars out of my estate, if she should outlive me, but if not, to her beirs as she shall direct, without use. [Signed] Lyman Chamberlain.” Held,, that in no event was this note payable except after tbe death of the maker and from bis estate.</p> <p>Parol evidence cannot be received to vary tbe construction of such an instrument. It must be its own interpreter.</p>

<p>Laches — Denial of indorsements — Stale claim.</p> <p>One who waits to enforce a stale claim until long after the death of those who would have known whether anything remained due upon it, is in no position to deny indorsements indicating payments, though made after the mortgagee’s death and before administration was granted on his estate, but while his minor children were in the care of a guardian.</p> <p>The dismissal of a foreclosure bill was affirmed where the mortgage was never recorded, and the mortgagee died twenty-nine years before suit, and no attempt to procure administration on the estate or to enforce the mortgage was made until after the mortgager’s death, and there were indorsements indicating that nearly the whole sum had been paid, and some evidence of a counter claim that would have extinguished the rest of it.</p>

<p>Misnomer — Failure of quit-claim — Homestead interest.</p> <p>Land was bought in 1864 by Robert Scofield, but the grantee, as named in the deed, was Robert J. Scofield, Jr. Robert Scofield had a son named Robert Junior Scofield, who quit-claimed the land in 1874, after the death of his father. The widow of Robert sued the grantee in ejectment for her dower, and defendant’s counsel claimed that defendant held a homestead right and that his wife should have been joined as a party. The jury found for the plaintiff. Held, that this was conclusive as to the question whether defendant’s grantor had any interest to convey, and that no question of homestead could be raised.</p>

<p>Error to Lenawee.</p> <p>Trespass. Defendants bring error.</p>

<p>Appeal from Ingbam.</p> <p>Bill to set aside foreclosure. Complainants appeal.</p>

<p> One cannot take advantage of one’s own wrong </p> <p>Where a wife had obtained a divorce on a sworn bill containing the usual allegation that there was no collusion, a subsequent bill filed by her to set aside the decree on the ground that it was procured by collusion was properly dismissed, in the absence of any showing that she had been defrauded.</p>

<p> Execution sale of undivided interest. </p> <p>An execution sale oí an undivided interest in lands of which the defendant estate owns the complete title, is void; and the defect cannot be cured by Comp. L. § 4596.</p>

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

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

Bill to redeem. The bill claims that in 1863 Martin Mosher bargained with James Sheldon for the purchase of part of the premises, and his son David Mosher bargained with other persons for the remainder; that in 1865 Mosher and Sheldon had a settlement showing that $900 remained unpaid on the first lot; that in 1866 David Mosher and Sheldon died intestate, Mosher’s interest descending to his father, and Sheldon’s to his widow and children; that in 1867 defendant James W.…

<p>GerUorwri — Assignments of error — Fencing railway trade.</p> <p>Special assignments of error are not required in certiorari cases which are removed to the Supreme Court by writ of error, those contained in the affidavit for cerUm'an'i being all that are essential.</p> <p>The statute which requires railroad companies to fence their tracks has no application to station grounds and their.approaches. Flint Fere Marquette Ry. Go. r. Full, 28 Mich. 515.</p> <p>Therefore a railroad company is not liable for the value of a cow killed on one of the approaches to a station, by an engine run without negligence.</p>

<p>Appeal from Wayne.</p> <p>Bill for accounting for moneys received under a trust. Defendants appeal.</p>

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

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

<p>Exceptions from, warranty — Trespass against grantee for destruction of wheat.</p> <p>Where the covenants of warranty in a deed of land are followed by the-clause “except all the wheat on the ground or land as above described ” the deed is not to be construed as reserving the wheat to the grantor, but as excepting it from the warranty.</p> <p>A grantor cannot maintain trespass against his grantee for destroying the-wheat on the land, when the strict construction of the deed is merely to except the wheat from the covenants of warranty, but not to-reserve it.</p>

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

<p>Partnership assets — Survivorship—Claim against estate.</p> <p>The presentation in the probate court of a claim against an estate does not estop the claimant from afterwards suing it in equity as a partnership claim, if its former presentation was not intended as an abandonment of it as such, and if it was expressly rejected on that ground at the respondent’s instance.</p> <p>Partnership property subject to partnership debts vests in the surviving partner; and the heirs of a deceased partner in whose name it was purchased cannot retain it until payment of such debts.</p> <p>Partnership lands are to be equally divided among the survivors and the heirs of a deceased partner when there are no partnership debts to be satisfied.</p> <p>Property purchased with the design that it shall become partnership property, and actually used in accordance with that design, must be regarded as firm assets.</p> <p>Where one partner purchased property for the usé of the firm but in his own name, though with the money of another partner, and the property is actually used as firm assets, the case does not fall within the principle of Comp. Laws § 4120, prohibiting resulting trusts, but must be treated as partnership property.</p>

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

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

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

<p>Error to Cass.</p> <p>Assumpstt. Plaintiff brings error.</p>

<p>Information — Omission of deseri¡ytive averments.</p> <p>An information for the statutory offense of an assault witli intent to rob (Comp. L. § 7525) is not to be held bad, after verdict, for the omission of descriptive averments, if it describes the offense in the words of the statute; nor for the omission of the word “feloniously.”</p> <p>An information for an assault with intent to rob will lie though the person assaulted was not the actual owner of the property. Actual possession or custody is sufficient as against the wrong-doer.</p>

<p>Exceptions from Recorder’s Court of Detroit.</p> <p>Information for larceny. Respondent was convicted below.</p>

<p>Appeal from tbe Superior Court of Detroit.</p> <p>Bill to obtain control of corporation stock. Complainant ■appeals.</p>

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

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

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

<p>Appeal from Superior Court of Detroit.</p> <p>Creditor’s bill. Defendant McKinley appeals.</p>

<p>Error to Ionia.</p> <p>Proceedings under Comp. L. ch. 211 to recover possession of lands. Complainants bring error.</p>

<p> Specific performance. </p> <p>Specific performance of a parol contract will not be granted unless it is substantially the contract set forth in the bill and is clearly proved.</p>

<p>Appeal from Genesee.</p> <p>Foreclosure. Defendant Hollywood appeals.</p>

<p>Village plats — Location of streets — Street commissionm’’s liability for injury by removal of lateral suppm't.</p> <p>Marking out a street on a village plat does not necessarily make the space a public way, unless the public authorities accept it as such.</p> <p>Where a street was marked out on a village plat, but a certain part oí it in its natural condition was incapable of use as a way, and for forty years remained so without any act of the authorities to accept or improve it, and the street commissioner then entered and made excavation that he might use the earth in other parts of the town, and in so doing removed the lateral support for adjacent lands to their injury; held,, that the commissioner was liable for this injury.</p> <p>When one makes an excavation by his neighbor’s land into which the land, from its own weight and of necessity must fall, and does immediately fall, trespass will lie against him therefor.</p>

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

<p>Railway crossings — Oaution hoards — Flagmen.</p> <p>The failure to erect a caution board at railroad crossings as required by the statute does not necessarily make the railroad company responsible for damages occasioned by a collision with one of its trains at the crossing.</p> <p>The caution board is for the purposes of a notification to those who are passing along the road; and where a party is familiar with the crossing, and has frequently been over it, and had it in mind on the occasion in question as he approached it, he cannot be said to have been injured by the failure to set up the caution.</p> <p>The fact that the approach of a railroad to a highway crossing is obscured by embankments, or otherwise, imposes upon travelers by the highway as well as upon the railroad company special care to avoid collisions.</p> <p>A railroad company is not, as matter of law, under obligation to station a flagman at a road crossing in the country because of the approach to it being partially concealed by embankments or otherwise.</p> <p>A team collided with a railway train at a road crossing, and the driver was killed. The railroad and the highway were both below the general surface of the ground, and an approaching train could only be seen occasionally by one driving towards the crossing. The driver was familiar with the crossing, but except that he checked his team for a moment, some four rods from the crossing, he did not appear to have observed any precaution. The engine whistle was duly sounded when the crossing was approached. Held, that the driver of the team was chargeable with negligence directly contributing to the collision, and that no action would lie by his administrator against the railroad company.</p>

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

<p>Joint indictment — Individual plea — Proof.</p> <p>Where two are jointly indicted, and one on tlie trial of the two admits his own guilt, the admission has no force as evidence against his co-defendant.</p> <p>Two men were jointly indicted and tried for a burglary. The theory of the prosecution was that one of them broke and entered the building while the other was present aiding and abetting. The one supposed to have broken and entered admitted his guilt on the trial. Held, that it was still necessary to give evidence as to the other which should cover the whole case.'</p>

<p>Error to Saginaw.</p> <p>Information for robbery. Respondent brings error.</p>

<p>Examination and re-examination of witnesses — Responsive answers.</p> <p>A proper question to a witness cannot be made improper by the statement of irresponsive and objectionable matter in reply.</p> <p>In an action on an oral contract it is proper for plaintiff to show whether the other party thereto, in a conversation had at the time it was made, said anything as to his general manner of dealing with other people.</p> <p>Where defendant by cross-examination draws out a partial statement of facts only, the plaintiffs counsel may re-examine as to the same subject-matter for the purpose of making the facts clear and obtaining such as are material.</p>

<p>Mandamus — Breach of contract of mutual insw'ance.</p> <p>Mandamus proceedings do not adjudicate rights, but are a mode of enforcing existing rights or compelling the performance of acknowledged duty.</p> <p>The award of mandamus concludes nothing, and cannot be pleaded in bar; and its denial will not sustain error.</p> <p>If a mutual benefit association fails to pay the amount due upon the death of a member whom it has agreed to insure to the extent of a certain sum for each certificate in force, the remedy is by an action for breach of contract, especially if the liability is disputed; and not by mandamus to compel the company to assess its members in order to make up the amount due.</p> <p>A private corporation cannot, by entering into a peculiar form of contract, avoid an action at law for its breach, or give an appellate court original jurisdiction for the 'collection thereunder of money demands against it; nor will its insolvency, or the fact that it cannot meet such demands until it has raised the necessary funds, confer such jurisdiction.</p>

Case made from Kent. Case, begun by capias ad, respondendum, plaintiff setting forth in her affidavit that her father, whose name was Snell, had died when she was five years old; that her mother had re-married and died; that her stepfather, who was poor, had cared for her until she was twelve, when she was taken by defendant and his wife to live with them; that defendant was represented to be a wealthy and honest farmer, with no children; that at his request and with the…

<p>Corporations — Assessments on members — Mandamus.</p> <p>A society organized under a Michigan incorporation act cannot subject itself or its members to the jurisdiction of an authority existing outside of the State and beyond the control of the Michigan laws.</p> <p>A grand lodge of the Ancient Order of United Workmen, incorporated under Comp. Laws ch. 94, cannot compel its members to pay assessments made under the orders of a supreme lodge incorporated under the laws of Kentucky and not subject to Michigan courts. Nor can it suspend members from their privileges as such for refusing to pay such an assessment.</p> <p>Mandamus is a discretionary writ and will not usually lie to settle the controversies of private corporations where the facts are not important on public grounds, or would not justify the interference of the court if corporate authority did not exist.</p> <p>Redress for injuries received from private corporations organized for joint or partnership undertakings, should be sought at common law, not through mandcmus proceedings.</p>

<p>Lease — Abandonment of family — Execution.</p> <p>Where the assignee of an invalid lease has abandoned his family, and a new lease is given to his wife, running in his name but signed by the wife by attaching her mark to his name, he is not bound by her act and does not become a party to the lease; and if she and her minor children farm the land she is entitled to the crops and they cannot be taken upon an execution against the husband.</p> <p>The wife is the head of the family when the husband abandons it.</p>

<p>Error to Alpena.</p> <p>.Assumpstt. Defendants bring error.</p>

<p>Error to Yan Burén.</p> <p>Appeal from probate. Contestant brings error.</p>

<p>Certiorari to Wayne Circuit Court.</p> <p>Appeal from tlie denial by the probate court of leave to the administrator to sell real estate. The order of the probate court was reversed, and certain heirs bring up the proceedings by certiorari.</p>

<p>Insmance — Instalment notes — Default in payments.</p> <p>An insurance policy purporting to be for five years stipulated that the company might at any time cancel it on returning the unexpired premium pro rata, and permitting the assured to have it cancelled on paying the customary short rate for the period expired; it also provided that in case of loss the company might deduct any note or instalment thereof given as a consideration for the policy. An instalment note given on the policy provided that in case of the non-payment of any instalment at maturity, the policy should be void until revived, and the whole amount of instalments remaining unpaid on said policy should be considered earned. Reid, that these provisions distinguished the policy from one under which there was no absolute insurance for the whole period for which it was taken.</p>

<p>Appeal from Marquette.</p> <p>Bill for specific performance. Defendant Conrad appeals.</p>

Appeal to tbe Supreme Court from tbe appraisal and report of a jury in proceedings to condemn lands, and from tbe order confirming them. Respondents appeal.

<p>Appeal from "Wayne.</p> <p>Foreclosure. Defendant Mary appeals.</p>

<p>Laying out highway — Desoi'iption—Notice.</p> <p>An order of a highway commissioner to lay out a highway beginning at a certain point- “running nearly in a northwesterly direction near where the travel is now seeking to get the best route ” to another specific,point, is void for the uncertainty in the description.</p> <p>The proceedings in laying out a highway cannot be sustained unless it appears that the statutory notice of the proceedings was given.</p>

<p>Bailway passengers — Negligence—Jumping from train.</p> <p>It is negligence for a passenger to leap from a moving train for the mere-purpose of getting, off at a station where the train should stop, hut does not do so, even though he takes that course in order to save-others distress on account of his absence.</p> <p>It is not necessarily negligence to take a choice of risks or to do, without freedom of choice, an act involving danger; hut it is negligence to-risk life or limb merely to escape inconvenience or mental vexation.</p> <p>One cannot recover damages for a personal injury tó which he contrib- . uted by his own negligence.</p>

<p>Filial piety — Buppm't of aged pan'ent.</p> <p>A person took a conveyance of land from Ms mother in consideration of which he was to support her for the rest of her life. But he shifted the burden upon a debtor whose mortgage he held, bargaining to allow Mm upon it a dollar a week, which was to be increased to a reasonable compensation when she became more infirm, as she did two years later. The mortgage was to secure about $700, due in four years. For seven years the creditor endorsed $50 a year upon the mortgage ; for the next four years, $75 ; and for the next three, $100. It was shown that after the mother became infirm, from tM'ee to five dollars a week wonld have been a reasonable compensation for her board and care, and after she left the debtor’s house her son in fact paid three dollars a week therefor. Held, that a bill to foreclose the mortgage should be dismissed, and the mortgage discharged as fully paid.</p>

<p> Sheriff’s authority to employ watchman cmd rent office. </p> <p>4 sheriff as such has no authority to employ watchmen for the jail or to rent an office for himself at the expense of the county.</p> <p>A sheriff without first obtaining the authority of the supervisors for the purpose, employed a night watchman for the jail and boarded him at the jail while he was so employed. The board of supervisors paid the watchman, and the sheriff then presented a bill against the county for boarding him. This bill the board refused to allow. Held, that the subject, under the Constitution of the State, was exclusively under the control of the board, and mandamus would not lie to compel the allowance.</p> <p>Tlie sheriff also hired an office for himself, claiming that the one provided by the county was wholly insufficient and unsuitable, and also that his action was sanctioned by a committee of the board of supervisors. The board refused to allow his bill for the rent. Held, that the judiciary has no authority to supervise and control the action of the board in respect to such bill.</p>

<p>Habeas Corpus.</p>

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

<p>Contract — Duress—Novation—Consideration.</p> <p>Defendants were large brewers, and bad a contract witb an ice company to supply tbem witb ice during tbe season of 1880 at one dollar seventy-five cents a ton, or two dollars if tbe crop was short. Tbe contract was made in November, 1879. Tbe following winter was so mild tbat tbe ice crop was a failure. In May defendants were notified by tbe ice company tbat no more ice would be furnished tbem under tbe contract. Defendants bad then on band a considerable amount of beer tbat would be spoiled without ice, and under stress of the circumstances they made a new arrangement witb tbe ice company, and agreed to pay $3.50 per ton for tbe ice. At this rate ice was received and paid for afterwards» A note given foil ice at this rate in October being sued, defendants disputed its validity, claiming tbat it was obtained without consideration and under duress.</p> <p>Held, 1. Tbat it wag-entirely competent for tbe parties to enter into the new arrangement if they saw fit,. Moore v. Detroit Locomotive Works 14 Mich*266.</p> <p>2. Tbat tbe note was not without consideration, being given for ice received.</p> <p>3. That tbe refusal of tbe ice company to perform its contract, and tbe exaction of a higher price, was not legal duress. HaeMey v. Headley 45 Mich. 509.</p>

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

Case made from Kent. Assumpsit, begun before a justice, on an undertaking by Kennedy to become surety for costs in behalf of Asa Finch in a suit brought by Finch against Brion. Plaintiff recovered before the justice, but on appeal judgment was given for defendant.

<p> QerMora/rir— Objections to evidence. </p> <p>On error bringing up a judgment affirmed on certwra/ri, only such* grounds can be'considered as are alleged in tbe affidavit for aeriiora/i'i.</p> <p>Trivial questions relating to the admission of evidence before a justice-should not have weight on certiorari.</p>

Assumpsit by Cummin, as administrator of the estate of . Alexander Cummin, against Wilcox, who had purchased goods of decedent. There had been mutual dealings between decedent arid Wilcox, and after trie allowance of an offset to tbe latter, there was proved to be a balance due from him for which the suit was begun. Plaintiff recovered in justice’s court, and defendant had judgment in the circuit court on appeal. Plaintiff brings error.

<p>Assessment of tusiness property — Replevin foi' goods taken for taxes.</p> <p>Township taxes assessed on the personal property of a partnership cam only be assessed in the township where the firm has a place of business (Comp. L. § 978) and not where the personal property is manufactured and stored, even though small quantities are occasionally-sold therefrom at that place.</p> <p>The prohibition against bringing replevin for property taken under a tax warrant (Comp. L. § 6729) does not apply where there was no* jurisdiction to levy the tax.</p>

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

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

<p>Beaeiver — Order giving possession.</p> <p>The court of chancery has authority in proper cases to appoint a receiver to take possession of and hold, pending litigation, property, the right to which is contested in that court.</p> <p>A hill was filed hy a corporator to reach property which it alleged had heen fraudulently mortgaged by the directors of the corporation to a trustee for themselves, and the mortgage then foreclosed and the property sold under it, thereby rendering the corporation insolvent. The purchaser was made a party, and was charged with having been cognizant of the frauds. After the bill was filed, motion was made for a receiver, and the defendants consented to the appointment. The purchaser, however, when the receiver undertook to take possession, resisted him. On a motion to put the receiver into possession, the purchaser was heard on affidavits, but his explanations were not satisfactory.</p> <p>Held, that the order of the court of chancery putting the receiver in possession, would not be disturbed.</p>

<p>Mandamus — M'aming issues on the answer.</p> <p>On petition for mandamus to compel the payment of highway orders, the parties should frame their issues on the answer, if it denies the validity of the orders; it is immaterial to reply that in a certain suit the judge had made a finding sustaining the orders, and to rejoin that a full finding- was not requested, and make surrejoinder that it was, and similiter.</p>

Injunction to restrain defendants from interfering with the collection of a judgment recovered by complainant against them, and from prosecuting any suit involving the controversy, except in the Superior Court of Detroit or a court appellate therefrom. Defendants appeal.

<p> Bill to establish unrecorded destroyed, by grantor. </p> <p>A bill may be filed to set up and establish an unrecorded deed -which has; been destroyed by the'grantor therein, notwithstanding there is a. remedy at law; the remedy at law not being lully adequate so long, as the record title is in the grantor.</p>

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

<p>Statutes — Intn’oduetion of bills — Similarity of purpose.</p> <p>By the Constitution no new bill can be introduced after the first fifty days of the session. Within the fifty days a bill was introduced to organize certain territory into the township of Montmorency. After the fifty days the bill was so amended as to convert it into a bill to . organize the same territory into the county of Montmorency, and in that form it was passed. Reid, that the act was not invalid as being in violation of the provision of the Constitution referred to.</p> <p>The general purpose of the bill as introduced was to give to the inhabitants of certain territory the rights of local government; and any amendment, not departing from this general purpose, would be admissible at any time. The amendment made did not depart from it, and was therefore not incompetent.</p> <p>If it were simply a matter of doubt whether the act was passed in disregard of the constitutional provision, the act should be sustained.</p>

<p>Appeal from Saginaw.</p> <p>Specific performance. Complainant'appeals.</p>

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

<p> Oom&rsion by seizure under chattel mortgage. </p> <p>Under a clause in. a chattel mortgage empowering the mortgagee to take possession whenever he should deem himself insecure, he would have good cause for doing so if he had reason to think and did think that he had been overreached in regard to the value of the property; and there would be no conversion in taking it if the mortgagee’s interest exceeded the value, as the mortgager would have no valuable interest.</p> <p>Seizure under an execution cannot aid a seizure under a mortgage if the execution is against a stranger to the mortgager’s interest.</p>

<p>Sale under chattel mortgage — OriteiHon of value.</p> <p>A chattel mortgage provided that goods seized under it should be sold at public auction after notice, and that the power of sale should be limited to so much of the property as the sale should show was needed to pay the debt. The mortgagee, however, retailed part of the goods at private sale. Held, that as he did not observe the method expressly agreed on for liquidating the value of the goods, the mortgager could elect to have the amount to be sold ascertained as in other cases, and in an action on the note secured by the mortgage the jury should have been charged to find the market value of the goods sold at private sale.</p>

<p>Facts to sustain verdict — Stipulation as to findings — Mistrial—Agreed statements of fact — Costs.</p> <p>The Supreme Court cannot decide whether there are facts to support a verdict without having before them all the facts producible by a finding; and they cannot, 'for the purpose of learning all the facts, investigate statements agreed upon by counsel and submitted, in connection with only partial testimony, as the sole basis for a verdict.</p> <p>The proper jurisdiction of the Supreme Court on error cannot be abridged by any stipulation whereby the parties seek to limit the • principle of decision and exclude legal considerations.</p> <p>It is a mistrial where parties submit a case upon a partial showing in connection with an agreed statement of facts, and stipulate that the court shall submit the case upon certain questions only, and that a particular verdict shall be taken if he shall be of a certain specified opinion and shall so charge the jury.</p> <p>Costs are not allowed to either party as against the other where there has been a mistrial resulting from the submission of the case in accordance with their own stipulations.</p>

<p>Discontinuance— Writ of assistance — Entitling,</p> <p>A discontinuance as to a deceased party is needless.</p> <p>Matter set up in defense to a motion for a writ of assistance cannot be received to affect the decree determining the defendants’ rights.</p> <p>Where proceedings by writ of assistance were taken on the foot of a foreclosure decree against a wife, leave being given to discontinue as against the husband, the objection that the papers were wrongly entitled in the names of both defendants was held a mere technicality. especially where it was not clear from the record whether the order of discontinuance had been entered.</p>

<p>Mortgage — Sale of lands — Application of payments in irmerse m'der of alienation.</p> <p>The rule recognized that when lauds subject to a mortgage are alienated by the mortgagor in parcels, they must be applied to the satisfaction, of the mortgage in the inverse order of alienation.</p> <p>When lands which had been thus sold were subject to two mortgages, and the proceeds of the last parcel sold were applied upon the first of the mortgages, and as a part of the same arrangement the mortgagee in the second who was mortgagor in the first and under obligations to pay it, assigned the second to a party who was to hold it for the protection of the fee against another specified claim, but this party afterwards sold it for value to one who took it in good faith: Held, that under the rule above mentioned the mortgage was to be deemed satisfied in the first arrangement; and the second assignment not being with consent of the owner of the fee the assignee took nothing thereby.</p>

<p>Ejectment — Change of title pending suit — Writ of possession — Estoppel by taking leases — Eoreclosure proceedings — Evidences of debt— Notice of sale — Affidavit of publication.</p> <p>Judgment in ejectment rests on the title held at the beginning of the suit; and if, pending suit, the plaintiff mortgages the land, there is nothing to hinder the defendant from buying it on foreclosure, and the title thus obtained will enure to his benefit.</p> <p>Proceedings under a writ of possession cannot strengthen a baseless claim of title.</p> <p>“Where, on the execution of a writ of possession, a defendant in the ejectment suit takes a lease from the plaintiff in order to avoid being put off the land, the act will not permanently estop him from contesting plaintiff’s title in another action of ejectment brought after the expiration of the lease and notice to quit.</p> <p>It is not pre-requisite to foreclosure proceedings that complainant should produce the note secured by the mortgage. But proof must be made of the mortgage and of the power of sale.</p> <p>In foreclosure proceedings proof of the mortgage and of a power of sale in apparent accordance with its terms, raise a presumption that will protect those purchasers whose rights are only assailed in a collateral manner.</p> <p>A foreclosure notice which states that the premises will be sold “or so much thereof as may be necessary,” is in the usual and proper form and is not objectionable as not designating the precise parcels to be sold; and if it describes the land in two government subdivisions it is presumptively desirable to sell them separately, though if they are in one connected estate it may be proper to sell them together and the expression “I will sell” in a notice signed by the mortgagee does not preclude the sheriff from making the sale.</p> <p>An affidavit of publication which states that the newspaper in which the ' notice was published was printed and published weekly and every week and that the publication was for thirteen successive weeks, the first being Nov. 26, 1879, and the last Feb. 18, 1880, is explicit that the notice was published once in each week.</p> <p>It was not unlawful for the attorney of a mortgagee to administer oaths in foreclosure proceedings until the passage of Act 6 of 1877.</p>

<p>Hjectnient — Doctrine of relation — Acquisition of title pending suit.</p> <p>Judgment in .ejectment rests on the title in being at the beginning of the suit.</p> <p>The doctrine of relation cannot be used to pervert justice or extinguish meritorious claims, but only to protect right.</p> <p>A defendant in ejectment against whom judgment was recovered had obtained a quit-claim pending suit from one who held a valid tax-title on the premises. The title had matured before suit was begun. Held, that it did not relate back from his purchase so as to be merged with his claim as it existed at the beginning of the suit, and estop his grantee from contesting a subsequent ejectment suit brought by the plaintiff’s grantee.</p> <p>A defendant in ejectment is not bound to set up an outstanding tax-title in which he has no interest, in defence to the action; and he is at liberty to purchase it pending suit for the purpose of acquiring title.</p>

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

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

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

<p>Error to Van Burén.</p> <p>Assumpsit. Defendant brings error.</p>

<p>Appeal from Eaton.</p> <p>Divorce. Defendant appeals.</p>

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

<p> Conspiracy to prevent suit and obstruct enforcement of judgment. </p> <p>Where the declaration in a civil action for conspiracy does not show the specific means to be used, it must accurately describe the illegal purpose aimed at.</p> <p>It is not an actionable wrong to delay or prevent a trial unless illegal means are used.</p> <p>A declaration for conspiracy must definitely and issuably set forth the facts complained of, so that if they are admitted the court can draw legal conclusions; it is not enough to merely aver that they are unlawful.</p> <p>Proof of an illegal purpose alone is enough to sustain a criminal prosecution for a conspiracy. But a civil action will not lie unless the purpose be so far carried out as to unlawfully damage the plaintiff.</p> <p>In a declaration in case for a conspiracy to prevent the trial of pending suits, it is insufficient to aver merely that by “ divers false pretenses, subtle means and devices ” defendants have “ prevented and defeated the trial of said cause; ” nor is it sufficient to refer to threats, as a means employed, without showing their tenor; a mere averment that they are unlawful is not enough.</p> <p>A declaration in case for conspiracy to prevent the enforcement of a judgment is insufficient in merely alleging that the defendant “did knowingly and willfully and unlawfully oppose and obstruct the said sheriff in attempting to execute said writ,” if the record does not show the manner and circumstances under which he did so; and an allegation of injury which merely declares that defendant “delayed and obstructed plaintiff in the collection of the judgment” and put him to great expense in removing the obstructions is fatally defective in presenting no issuable facts, and is open to the inference that the judgment may have been collected .and is also, consistent with methods of obstruction and delay some of which -would not be actionable. •</p>

<p> Jwy's finding in proceedings to lay out a prrimate way. </p> <p>In. proceedings to lay out a private way the jury must find that there is a necessity for it; it is not enough to certify that they “adjudge and determine that a private highway be established.”</p>

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

<p>Parol evidence of levy — Partnership—Replevin.</p> <p>Where defendants in replevin set up that the property was held under levies in favor of specified parties, and parol evidence was given, without objection, of one of the levies, with testimony tending to show that one of the firm, in whose favor it was made was spoken to on the subject and refused to release the levy, it was error, while directing a verdict against the officer who took the property, to charge that in the absence of documentary evidence the firm could not be held, as there was enough to go to the jury on this question.</p>

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

<p>Fraud in exchange of land — Evidence—Gonstruetion of charge.</p> <p>Where a patient sued his doctor for cheating him in an exchange of land, it was held admissible to ’aslt the patient on his examination-in-chief as to what the slate of his health was previous to the bargain, it being claimed that the doctor had represented the land as a healthier location than that where the patient then resided.</p> <p>Where the testimony oí a witness in reference to a particular subject is part of a continuous conversation relating to that matter and to the subject of the litigation, it is not error to admit it, if the conversation is relevant, and a party on whose motion it has been stricken out cannot afterwards complain of its admission.</p> <p>In an action for fraud in substituting one parcel of land for another in an exchange of real property, it is admissible to show that before the exchange defendant had offered to the witness the land which he afterward agreed to let plaintiff have, as this would tend to show that the substitution was not a mere mistake.</p> <p>Portions of a connected charge which covers the whole controversy will not be considered alone for the purpose of bringing error.</p>

<p>Entry of appearance — Dismissal of appeal — Eiror.</p> <p>Motion was made in tlie circuit court to dismiss an appeal from the-judgment of a justice of tlie peace, on the ground that it was not taken in due season, and also that the paper purporting to be a return was not made by the justice for that purpose. On these points there was room for dispute; but as it appeared that the appellees had entered their appearance in the circuit court generally i Held, that the appeal ought not to be dismissed.</p> <p>Error lies on the final disposition of a case in the circuit court on motion to dismiss.</p>

<p>Chattel mortgage — Seitm'e of goods in which third persons home undivided interests — Bmdence of conversations — Sales to several buyers — Instructions.,</p> <p>A married woman sued for the seizure of some goods in which she owned an undivided half interest. Held, that as she had shown a knowledge on the subject, her estimate of the aggregate value of the goods taken was admissible; and as the amount of sales was an element in arriving at the true condition of the stock, it was also proper to allow her to state the value of the goods sold out of the store during her own attendance on the store.</p> <p>In an action by a married woman for the seizure of property mortgaged by her husband and son, but in which she had an undivided interest, evidence of defendant’s conversations with the mortgagers on their own private business, and in plaintiff’s absence, is inadmissible. But evidence bearing on a conversation between defendant and plaintiff concerning the purchase of the property for herself and her husband is competent to show his knowledge of her interest.</p> <p>Where a defendant is cross-examined as to an alleged conversation with plaintiff, and denies the conversation, the questions can do him no harm.</p> <p>Where the record does not give the answers of a party on cross-examination, it cannot be assumed that the questions did any harm.</p> <p>Where mortgaged property is wrongfully seized by the mortgagees and an officer acting in their behalf, all who take part in the trespass are jointly liable for the valúe of the plaintiff’s interest.</p> <p>One who has an undivided interest in a stock of goods seized and sold under a mortgage given by the other owner is damaged by the conversion to the extent of his interest, for he is not bound to take back what is left after the mortgagees have sold as much as they see fit.</p> <p>A sale to two persons is presumed to enure to them equally, in the absence of a showing, and any one who knows of such an interest must know that it can only be transferred by its owner or by some one acting by the owner’s authority.</p> <p>Where an owner of an undivided interest in goods mortgages them, an agreement by the other owner to pay the mortgage, or an actual part payment, will not of itself bring his own interest within the mortgage.</p> <p>¡Specific requests to charge need not be given so long as all the party has a right to ask is covered by the charge.</p> <p>Where the damages by trespass are expressly limited to the actual loss, a reference in the charge to malice is not prejudicial.</p>

<p> Vendor’s lien precedes mechanic’s lien. </p> <p>A vendor’s lien secured by a duly recorded chattel mortgage takes precedence of a mechanic’s lien for repairs subsequently done at the purchaser’s request.</p>

<p>Laches — Disrega/i'd of chancery subpoena — Omission of retw'n day.</p> <p>It is gross laches for a defendant in chancery to disregard the subpoena served on him and permit the proceedings to go to decree merely because the copy served did not give the date of the return day; and a motion made after decree to set aside all proceedings after the issue of subpmna is properly denied.</p>

<p>Trade-name — Injunction to restrain use of name after sale of business.</p> <p>Where a person had established a business in the use of the name “Little Jake ” and afterwards sold the business and stipulated not to make use of it in a rival-business to that of his assignee, but that the latter might have the benefit of its use, held, that there was no reason in public policy why the vendor should not be enjoined from violating his agreement.</p> <p>There is no necessary fraud upon the public in such a contract, and no necessary deception.</p> <p>Others who associate with the vendor in establishing a rival business under the name “Little Jake” may be restrained to the same extent as the vendor himself.</p>

<p>Contracts — Demwrrer for nonjoinder — Sureties for liquidated damages — - Joint and several responsibility.</p> <p>A declaration on a contract is not demurrable for the non-joinder of plaintiff’s sureties where the latter have no such interest in it as. would entitle them to receipt for money due on it to their principal, and are only bound to pay certain liquidated damages on his default.</p> <p>Where a contract describes the parties on one side as principal and sureties and stipulates that the principal shall perform the obligations- and receive the pay while the sureties shall only be liable for liquidated damages on his default, it is, in effect, a severable contract, and the principal sureties need not be joined as plaintiffs in a suit upon it.</p> <p>A contract which is plainly meant to be several is not to be treated as. joint merely because several persons have signed it on one side or the-other.</p>

<p>Error to Yan Burén.</p> <p>Assumpsit. Plaintiff brings error.</p>

<p>Verbal sales — Judgment on certiorari — Becord, on error.</p> <p>There can be no recovery on a vernal sale of goods exceeding $50 in value unless something has been paid or some part of the goods delivered. _ Comp. L. §4699.</p> <p>Where the result in the circuit court on cei'tiorm'i is the same as below, the judgment should be a simple affirmance, with or without costs; it is formal error to render a new judgment for damages and. costs, enforcible by execution from the circuit court.</p> <p>On error bringing up a case affirmed on certiorari to a justice, the case is to be heard on the justice’s return alone; the Supreme Court cannot regard a certificate by the county clerk that part of the judgment was collected by justice’s execution before the decision in the circuit. Questions of payment can arise only when it is sought to enforce the judgment.</p>

<p>Value — Bill of particulars — Gertioran'i—Appeal.</p> <p>Witnesses who employed a farm laborer at or about the time be was working for another person, or who knew the character of his work for those who did so, are competent to give an opinion as to the value of his work.</p> <p>Where suit is brought for the value of labor, and a bill of particulars, filed under a notice of set-off and recoupment, gives no intimation of damages for breach of the contract of hire, evidence of such damages are inadmissible on certiorari.</p> <p>Beversal on certiorari of a judgment for the plaintiff may cut off his remedy, but on appeal he can amend his pleadings and have a new trial.</p>

<p>Appeal from Yan Burén.</p> <p>Bill for partition. Defendants appeal.</p>

<p>Error to Yan Burén.</p> <p>Trespass. Defendant brings error.</p>

Habeas Corpus. The preliminary application for the writ was submitted January 19th, and the following writ was issued: THE WRIT. In the name of the People of the State of Michigan.

<p> Appointment of school teacher. </p> <p>.A school teacher cannot he lawfully employed by two members of the district board without the concurrence of the third, and without convening any meeting of the board.</p>

<p> Ho trial fee injustice’s court where there is no trial. </p> <p>Under the statute of 1881, which gives to a justice of the peace specific fees for various services in criminal cases, and among others gives a definite sum for the trial of a cause, the justice is not entitled to that fee in a case where the accused pleads guilty.</p>

<p>Eape — Evidence as to previous friendly relations.</p> <p>The defendant in a prosecution for rape has a right to show that his previous relations with the complaining party were of a friendly character, even though the testimony has no tendency to show that they were improper or that her general character or reputation was had.</p> <p>A person charged with rape may he convicted of felonious assault.</p>

<p>Statwtoi'y burglary — Entry of store oeewpied as dwelling!</p> <p>The prisoner was charged with, the statutory burglary of breaking and entering' a store not adjoining to or occupied with a dwelling-house, with felonious intent. Under such a charge if it turns out that the store does adjoin or is occupied with a dwelling-house there can be no conviction.</p> <p>The evidence showed that the store was the first story of a building ; that the proprietors were a co-partnership, composed of two persons who leased the building; that one of the partners occupied the upper part of the building as a dwelling-house, and the other partner lodged with him. Held, that the evidence did not support the information. People v. Nolan S3 Mich. 339, distinguished.</p>

<p>Case made from Marquette.</p> <p>Ejectment. Plaintiffs had judgment.</p>

<p>Mandamus to compel re-taxation of costs.</p>

<p>Mutual benefit associations — Insurance.</p>

<p>Motion for rehearing.</p>

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

<p>Private corporations — Enforcement of rules.</p>