Volume 48 — Michigan Reports

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

<p>Appeal from Superior Court of Detroit.</p> <p>Bill for accounting. Complainant appeals.</p>

<p> Assignee of non-negotiable paper bound by prior equities. </p> <p>The assignee of a non-negotiable chose in action takes it subject to antecedent equities, and the right to sue upon it in his own name makes no difference.</p> <p>'The rule that a bona fide holder of negotiable paper is not affected by prior equities of which he has no notice does not apply if he receives the paper from the original payee by assignment or sale instead of indorsement; he thus obtains no title superior to that o£ the payee. in whose name only he can sue*- and. the maker is therefore not precluded from asserting equities that would have been valid as against, the payee.</p>

<p>Water rights — Maintenance of dams by grantees of water-power — Obstrmation of flow, and, extravagant use.</p> <p>3 a 1864 a riparian proprietor, upon the Thornapple river, built a brush dam across the river whereby the water was forced through a certain canal, and then sold the right to take through the canal water sufficient for four runs of stone in a flouring mill. By moans of the power thus obtained a mill-below the dam has ever since been operated. In the conveyance the whole quantity of water in the river was estimated as sufficient for sixteen runs of ¡jtone. Subsequently a sale was made to others óf the right to draw from the canal sufficient to operate three runs of stone; and a mill was erected above-the other to be operated by the power purchased. ’ Under each grant the grantee was under obligation to bear his just proportion of the-expense of keeping the dam in repair.</p> <p>In 1877 the proprietor of the lower mill filed his hill against the proprietors of the upper mill, claiming that the defendants by certain obstructions in the canal, some of which were put in “soon after” the grant in 1864, were preventing the flow to him of the full quantity of water to which he was entitled, and were also depriving him of his just quantity by extravagant use, and that they neglected and refused to bear their proportion of the cost of repairs, though he at all times bore and paid his proportion, which was one-fourth of the-cost; and praying for an injunction to restrain the defendants from continuing such obstructions, and from such extravagant use of water, etc.</p> <p>Upon this bill and upon the evidence in support of the same the court made a decree reciting that complainant was entitled to the first right in the use of the water to the extent of sufficient for four runs of stone; that his just proportion of the cost of keeping up the dam was one-fourth; that the flow of water in the canal to complainant’s mill was improperly obstructed, and that defendants had wrongfully drawn away and diverted water from him; and perpetually enjoining defendants from interrupting or interfering with the flow of water to complainant’s mill sufficient for four runs of mill-stones, and from interrupting or interfering with the first right to the use of said supply of water by complainant at all times, and from placing obstructions in the canal or maintaining any already there whereby the supply of water to complainant’s mill would be wholly or partially interfered with.</p> <p>Held, that this decree was erroneous.</p> <p>The just proportion which complainant should bear of the cost of repairs would be the proportion which the water to which he was-entitled bore to the whole quantity in the river if all was used. There was evidence in the case that the water in the river was sufficient, not for sixteen runs of stone, but for ten only; and complainant’s proportion would, therefore, be two-fifths of all if all the water was used. But it appearing that use was made of the water by complainant and defendants only, and that the dam was kept up only for their use, and their rights in the water were respectively as four to three: Reld, that the cost of maintaining the dam should, as. between them, be borne in this proportion.</p> <p>The decree was erroneous for indefiniteness as to the obstruction to be removed, and also because apparently it included obstructions that had existed, for many years before the suit was instituted, and which, if unwarranted, should long ago have been complained of.</p> <p>The decree was erroneous also, because it assumed that complainant’s right to a certain proportion of the water was absolute and unconditional; whereas it was a right dependent on his doing his share towards keeping the dam in repair.</p> <p>Held fw'ther, that considering the nature of the structure to be maintained, the liability to perpetual controversies concerning the performance by the parties respectively of their duties in regard to it, and concerning the use or waste of water by them, and the necessity that would exist that the court, if it assumed jurisdiction and awarded an injunction, should have perpetual oversight in respect to the conduct enjoined, the case was not a proper one for equitable jurisdiction, and that complainant should find his remedy at law.</p>

<p>Closing saloons on legal holidays — Certiora/ri—Stay of execution.</p> <p>Tlie statute closing all “saloons” on “legal liolidays” is meant to prevent the sale of liquors on liolidays in any place of resort for refreshments. Act 267 of 1879.</p> <p>A complaint for a violation of the statute which requires saloons to he kept closed on legal holidays is sufficiently precise if it avers that respondent kept a saloon; that he kept it open on the holiday named, and that he then and there sold spirituous and intoxicating or malt liquors.</p> <p>Errors in proceedings removed on certioran'i from before a justice cannot be made out if they do not appear by the justice’s return.</p> <p>While the repeal of a statute generally ends all criminal proceedings under it, it does not do so in cases which have been put in judgment and in which the judgment has been transferred by certiorari to a higher court and affirmed.</p> <p>Where the judgment in criminal proceedings before a justice is affirmed on ceriioi'añ the only judgment is that of the justice; and the stay of proceedings by reason of the writ of eerMora/H only postpones its enforcement for the period between suing out the writ and the return to the circuit of the order of the Supreme Court affirming the judgment.</p> <p>The punishment of an offence under an old statute is not inconsistent with a new law which repeals acts inconsistent with said statute, but which applies only to future cases, and to those in substantially the same way.</p> <p>On ccrtirrari no errors are considered that were not made a ground for allowing the writ.</p> <p>A stay of execution does not affect the judgment, but only the time of its enforcement.</p>

<p>Error to Mecosta.</p> <p>Information for arson. Respondent brir 6s error.</p>

<p>.Jury must regard instructions as to the law — Assault by shooting— Uncontrollable anger does not excuse violence.</p> <p>In Michigan a trial court must instruct the jury as to the law in criminal as well as in civil cases, and it is the jury’s duty to accept the ruling.</p> <p>It is an assault upon a person to intentionally shoot him with a pistol loaded with ball.</p> <p>Uncontrollable anger and excitement do not excuse the commission of desperate acts of violence, whatever the provocation, and render them less liable to punishment.</p>

<p>Error to Bay.</p> <p>Information for larceny from tbe person. Respondent brings error.</p>

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

<p>Obtaining indorsement by false pretenses — Weight of evidence — New tried for unjust verdict — Review of evidence by appellate court — Intent shown by previous acts — Amendment of information by assistant prosecuting attorney.</p> <p>The weight of conflicting evidence is for the jury in criminal as well as in civil cases.</p> <p>If a trial court thinks that á verdict is not in accordance with' the evidence, and does injustice, it can correct the jury’s error hy granting a new trial.</p> <p>The Supreme Court cannot review the evidence in a criminal case for the purpose of correcting an error of the jury. It can only interpose-when there is a total want of evidence on some essential point, and then only to correct the error of law committed by the trial court in not instructing the jury that the evidence would not warrant a conviction.</p> <p>Comp. L. § 7890, in punishing the crime of obtaining an indorsement by false pretenses, imposes the penalty on public grounds; and the fact that the indorser knew the indorsement was to be dishonestly used cannot release the respondent.</p> <p>When it becomes necessary in a criminal prosecution to show a particular inteut in order to establish the offense charged, proof of previous acts of the same kind is admissible for that purpose.</p> <p>In a prosecution for obtaining an indorsement on the false pretense that the proceeds of the paper were to be paid to a specified person it was Tield allowable to show that respondent had previously obtained from the indorser sums which he claimed were to be paid and afterwards said had been paid to the same person, when in fact they had not been. Such evidence tends to show a systematic scheme for obtaining money on false pretenses.</p> <p>Where an indorsement was obtained by false pretenses resting on positive statements to which surrounding facts gave color, it could not be charged, as matter of law, that no offense had been committed in obtaining it, on the ground either that the pretenses were such as would not impose on persons of ordinary prudence or that other considerations, known to the respondent, aided them.</p> <p>An assistant prosecuting attorney has power in the necessary absence of his superior and with permission of the court to make such amendments to an information as are authorized by statute.</p>

<p>Assistant police justice — Depositions— Verdict of orime — Stenographer’s note& of testimony — Requests for instructions — Conviction of one of several joint wrong-doers — Larceny—Accessories.</p> <p>The Police Court Act of Grand Rapids provides that in case of the “absence, inability or disability” of the police judge the assistant justice may act in his place. Held, that where a complaint was made before the judge and the depositions of witnesses were taken before the assistant, and the judge afterwards certified that defendants waived further examination and committed them for trial, the proceeding might be sustained, especially as a commitment may be made where-examination is waived.</p> <p>Witnesses in civil cases are not required by any constitutional rule to be produced in open court, and in equity the prevailing practice is-against it, depositions being taken when witnesses cannot be present. But the Constitution does not permit this to be done in criminal cases.</p> <p>A verdict in a criminal case cannot properly rest on a mere preponderance of conflicting evidence, but should be based on proof that leaves no reasonable doubt of guilt.</p> <p>The testimony of a witness in the trial of a criminal case, may be reproduced, if necessary, upon a later trial, if the witness has meanwhile-died; but it must be placed before the jury as nearly as possible as the witness would have placed it.</p> <p>Stenographer’s minutes of former testimony cannot be received to supply the testimony of an absent witness if they are not shown to be correct.</p> <p>The refusal of specific requests to charge is not error if the charge given; brings out the same points clearly and definitely.</p> <p>Where defendants in a criminal case are charged as joint wrong-doers, the jury must be cautioned that the conviction of one is not to be considered in dealing with the other.</p> <p>Where more than one person is concerned in the original guilty purpose of committing larceny from the person, all who are present, aiding and abetting, are principals. But one who afterwards receives the stolen property without being in anywise concerned in the original purpose, is guilty of the larceny alone.</p>

<p>Appeal from "Wayne.</p> <p>Bell to quiet title. Defendants appeal.</p>

<p>Municipal liability for defects in bridges — Negligence—Inspection by township officers.</p> <p>¡üncontested facts sliould not be treated as open questions in.requesting charges and giving instructions.</p> <p>A township must receive notice and act through its officers, and must-exercise through them a reasonable supervision over its highways and bridges, watch their condition and see that they are reasonably safe for public travel.</p> <p>Want of knowledge sometimes implies a want of due care; as where-township officers, whose duty it is to keep bridges in a safe condition, do not know of defects which an examination would readily disclose. '</p> <p>Township officers cannot ignore common sense and ordinary experience-in discharging their duties, and neglect to keep in repair a bridge-which is generally suspected to have become weakened from age,, merely because they have had no actual notice of any defect.</p> <p>Township officers are only required to exercise ordinary care and pru1- • dence and reasonable intelligence in performing their duty of supervising the condition of roads and bridges and keeping them in repair; and in determining the standard of diligence required from, them by law it is proper to consider the size of the township, the sparsity of the population, the number and remoteness of the roads- and bridges and the improbability of finding road officers with exceptional qualifications.</p> <p>Act 240 of 1879 makes townships liable for injuries caused by defects in* highways and bridges. Within forty days after the act took effect a man crossing a bridge with some heavy machinery drawn by-horses, was injured in consequence of the interior rottenness of a* beam. Held, that, in an action against the township, the fact that the highway commissioner knew of repairs made the previous yeai- and of the results of inspections then had should be taken into-account, together with the age and appearance of the bridge, as bearing on the question of his duty to inspect after the act toolc effect.</p>

<p>Appeal from Yan Burén.</p> <p>Bill to set aside deeds and mortgages. Complainant appeals.</p>

<p>Appeal from Bay.</p> <p>Bill to enforce trust. Complainant appeals.</p>

<p>Bipm'iam, rights — Interference by motions in the water.</p> <p>The owner of land on a bay shore platted a parcel reserving a strip two rods wide lying between the lots nearest the water and the water-line. She afterwards granted from this parcel a lot which extended back to the boundary of the reserved tract, and described as lot 5. Still later she conveyed to the same purchaser a parcel of land in the rear of this lot and described as “so much of a reserved strip of land on Thunder Bay shore as lies in the rear and adjoining lot number five * * to extend no farther into the bay than six rods from the rear line of said lot * * reserving * * a strip of land two rods wide across said six rods here conveyed, until second parties shall construct a passage way beyond and adjoining said six rods hereby conveyed, two rods wide, and keep it open for the free passage of teams, for the use and benefit of first and second parties at all times.” Some years later the grantor made another plat covering the land reserved in the first plat, and laid out lots extending into the waters of the bay, with a street beyond them, and beyond the street she platted a lot designated as lot 1, which lay wholly under water and extended across the water front of all the other lots including the descriptions conveyed. She then sold lot 1 to another person who made permanent and valuable improvements upon it, part of which extended in front of the first grantee’s property in the shallow waters of the bay. Held, on a bill filed by the first grantee against the second, for the protection of the former’s riparian rights, that notwithstanding the reservation of a strip of land across the premises in the second conveyance, the grantee therein acquired full riparian rights and was entitled to be protected in their enjoyment.</p>

<p> Distribution of decedents estate. </p> <p>Comp. L. § 4309 in providing in subd. 3 for the distribution of the estate of a decedent who ijas left no widow, children or parent, covers personal as well as real property; but subd. 6, which directs what shall be done with an estate of inheritance where the heir dies unmarried, relates to real property only, and is, in effect, another step in the administration of the ancestor’s estate.</p> <p>The Michigan statute of distributions deals only with the particular-estate of the decedent irrespective of its origin or previous ownership; but provisions which relate to the farther disposition of ancestral estates after the death of the heir are mainly to perfect an administration of the ancestor’s estate in real property when it has failed in consequence of the heir’s death.</p> <p>One of the distributees of his father’s estate died a minor, unmarried and intestate. His mother survived him as did other children of his father. Held, that under Comp. L. § 4309 subd. 3 and § 4377 subd. 6 his mother was entitled to share in the personal estate inherited from his father.</p>

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

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

<p>Error to Kalamazoo.</p> <p>Assumpsit. Cross-actions. Defendant Harris brings error.</p>

<p>Removal of causes — Presumption as to legality.</p> <p>Where an application is made to an inferior court to remove a cause into» a court of the United States,,and it does not appear that the bond tendered was such as that court regarded as sufficient, this Court cannot presume on error that the omission to remove the cause was-based on a denial of the legal sufficiency of the ground of removal.</p> <p>Where the record does not show the ground of the action below it must-be presumed on error to have been legal if legality was possible.</p>

<p>Warehouse receipts as security — Seizure by pledgee.</p> <p>A warehouseman having property of his own in store may pass title to it. by the execution and delivery of an ordinary warehouse receipt.</p> <p>He may also pledge it by such a receipt to secure the payment of his own indebtedness. And where the property is wheat, the pledge is not inoperative by reason of the wheat being part of a larger mass and not separated or distinguished when the receipt is given.</p> <p>A warehouse receipt pledged as security for a loan “eighteen thousand bushels of No. 1 white and No. 2 red winter wheat, or an equivalent in ñora.” It was given by millers, who were engaged in manufacturing flour, and who in doing so mixed the white and red wheat. Held, that the receipt was not void for indefiniteness, but the pledgee might take under it an equal proportion of each kind of wheat, or, if the wheat was not on hand, an equivalent in flour. .</p>

<p>Motion to strike out exceptions.</p>

<p>Appeal from íát. Joseph.</p> <p>Petition for dissolution of corporation and appointment iof receiver. Contestants appeal.</p>

<p> Covenants against incumbrances. </p> <p>A deed purporting to convey a lot of land subject to an existing incumbrance of sixteen hundred dollars, contained a covenant whereby the grantor undertook to warrant and defend the land to the grantee, and his assigns, against all persons claiming under the grantors, and also “against all persons whomsoever and all claims whatsoever,” except the said sum of sixteen hundred dollars. Held, that this was a covenant against incumbrances as well as a covenant of warranty.</p> <p>It appearing that the incumbrance was nineteen hundred dollars instead of sixteen hundred, this covenant was immediately broken, and the grantee on making payment could recover the excess in a suit upon it.</p> <p>-TSTo particular form of words is necessary to constitute a covenant. It is a promise, and the question is what it is the parties understood by it.</p> <p>•Several covenants may be embraced in a single sentence or embodied in a single promise.</p> <p>Encumbrances are “claims,” and a covenant against all “claims” must be held to embrace incumbrances.</p>

<p> Indorsee for collection may sue on negotiable pa/per in Ms own name. </p> <p>An agent to whom negotiable paper is indorsed for collection may sue tbereon in bis own name.</p> <p>As tbe indorsement for sucb purpose passes the legal title in trust, the authority to collect is not revoked by tbe death of tbe owner.</p> <p>If tbe evidence respecting tbe agency to collect a note is ambiguous, tbe court cannot pass upon it, but must submit.it to tbe jury.</p>

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

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

<p>Negotiability — Mortgage by trustee to secure performance of trust.</p> <p>A promise to pay ‘ ‘ on or before four years from date * * with interest * * not to be paid annually unless tbe promisor can make it convenient, and other security to be taken in exchange for this note when said [promisor] can realize the same in proper shape from ” [a specified source], is not negotiable and its form is sufficient to put an assignee upon inquiry.</p> <p>Where a creditor causes an arrangement to be made whereby the property of his debtor is conveyed to a trustee to enable him to plat and sell it and out of the proceeds pay off encumbrances and the .creditor’s claim, and the trustee gives the creditor a promise, in the form of a note, to pay the amount of the debt within a certain time, with a stipulation that other security be taken in exchange for the note when he can realize it from the property, and farther secures the payment or performance of these conditions by a mortgage, the creditor has no equity to enforce the security if the trustee did not. abuse his trust and was not negligent and if he could not obtain the means from the property in his charge.</p>

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

<p>Bill in aid — Interferenoe with rights in suit.</p> <p>It is not the practice to file a bill in equity in aid of another bill in the same court.</p> <p>A bill in equity will not lie to obtain merely an injunction and receiver pending another suit covering all rights in the disputed property; interference with such rights can be restrained by some proceeding in the suit pending.</p>

<p>Assignment of intestate’s property to heirs — Assessment of property belonging to estate — Assessor’s and surveyor’s certificates— Return of ddinguent ta/xes.</p> <p>"When all the debts of an intestate have been paid, and the administrator is discharged, the assignment of the property to the heirs and next of kin is a mere formality, which it is the duty of the court to make and which nobody can contest.</p> <p>Slight showing that such an assignment has been made will he.sufficient to support a finding to that effect where it appears that the probate court has proceeded to partition the lands among the heirs.</p> <p>Where the statute — Comp. L. § 976 — permits the property of an estate to he assessed to the heirs or devisees without naming them, an assessment to the estate by name is held to be legally equivalent, and therefore sufficient.</p> <p>Where in an assessor’s certificate the lands are certified to be assessed at the “cash value” instead of the “true cash value” as required by law, but in another part of it the personal property is certified to as assessed at its “true cash value as aforesaid,” the omission of the word “true ” in the first place is held to be a clerical error, and not fatal.</p> <p>Where the certificate required by the statute to be attached to the assessment roll is attached but not signed, the defect is fatal. And there can be no presumption in such a case that there once was a proper certificate duly signed ; as the incomplete certificate negatives this.</p> <p>The fact that a supervisor’s certificate to an assessment- roll is dated before the day of review, when parties have a right to appear and be heard on their assessments, is not important. The date may be an error, and if not, the review may nevertheless have taken place.</p> <p>Where the assessor’s certificate stated that the lands were assessed at “ the cash value thereof, and not at the price it would sell for at forced sale,” when the statute required it to state that the lands were assessed at “ the true cash value thereof and not at the price it would sell for at forced or auction sale,” held, that these variances had an appearance of evasion, as if the certificate was made with mental reservation as to the meaning; and that it would not be sustained.</p> <p>A township treasurer’s return of delinquent taxes is good if in the statutory form, and it will be presumed, if necessary to sustain it, that personal demand was made for-taxes assessed upon residents.</p>

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

<p>Replevin — Judgment on denial of possession</p> <p>Where a defendant in replevin, sets up no right or claim to the property, but denies having been in possession when the writ was issued and served, and defends on that ground, and has verdict in his favor that he did not unlawfully detain, etc., he has no claim to a judgment for the return of the property, or for its value.</p> <p>In an action of replevin the question on the merits was whether plaintiffs or a certain third party had a right to the goods under mortgage held by them respectively. The defendant set up no right to the goods, but denied that they were taken under the writ from his possession, and gave particular and circumstantial evidence that he was not in possession when suit was instituted. The jury returned a verdict that the defendant did not unlawfully detain, etc. Held, that under these circumstances the defendant was entitled to judgment for costs only; and the judge having sent the jury hack to assess the value of the property, and given judgment for the defendant for the amount assessed, such judgment for value was reversed.</p>

<p> Laboi' debts. </p> <p>A stockholder is not liable as for. a labor debt for money due under a-, contract with tbe corporation, whereby the contractor is to carry on certain quarrying operations at bis own expense and for a period of years, in a quarry owned by tbe corporation, and deliver rock to the-corporation at certain rates.</p>

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

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

Mandamus to prohibit respondent from hearing an appeal from the disallowance of a claim against the estate of relator’s decedent.

<p>Case made from Wayne.</p> <p>Case. Defendant bad judgment.</p>

<p>.Jurisdiction concerning right of way — License—Special appeal — Amendment of declaration on appeal.</p> <p>Under the statutes of this State a justice of the peace has no jurisdiction of an action for the disturbance of a right of way.</p> <p>An agreement in writing hut not sealed whereby one for a consideration agrees to permit another to pass over the usual road or place for hauling over his premises either creates an easement or is a license merely. If it creates an easement, an action will not lie in justice’s court for interrupting the passage ; if it is a license merely, it is revoked by the interruption.</p> <p>■Objections to the jurisdiction in justice’s court may he taken to the circuit court by special appeal.</p> <p>"Where the plaintiff declares in justice’s court for a cause of action 'of which the justice has no jurisdiction, no amendment of the declaration in the" circuit court on appeal can save the case.</p>

<p>Appeal from St. Joseph.</p> <p>Bill to enforce payment from an estate under a contract-with decedent.</p>

<p>Setoff injustice's covH — Jurisdiction on appeal.</p> <p>The jurisdiction of the circuit court upon an appeal from a justice, is merely appellate and will not admit of enlarging the claim of either party, as that would be to make the jurisdiction original to the extent of the excess.</p> <p>Comp. L. § 5822 provides that where a defendant in justice’s court has a set-off exceeding $800, defendant shall have judgment for costs and enough shall be applied on plaintiff’s claim to satisfy it, or a judgment of discontinuance shall be entered. Held, that an appellate court can render no other judgment than the justice could have given.</p>

<p>Error to St. Joseph.</p> <p>Appeal from allowance of claim against estate. Contestants bring error.</p>

<p>Certiorari to town board.</p>

<p>Township school directors — Expenditures.</p> <p>A township school director has authority, in the exercise of a sound discretion, to buy new seats for a school house under a resolution, adopted at the annual meeting of the school district, “that the-school board fix the school house ready for the winter term.”</p> <p>Act 164 of 1881 in authorizing the removal of a school district officer for illegally using or disposing of any of the public moneys entrusted to his care, does not cover a charge of conspiring with a woman-moderator to hire her husband as teacher and pay him more than was-necessary to obtain a good teacher.</p>

<p>Chattel mortgage — Possession of subsequent purchaser — Settlement of case.</p> <p>A chattel mortgagee cannot be deprived, of possession by subsequent purchasers without tender or payment.</p> <p>This Court will not treat a case as settled and arranged when no motion 'is made to dismiss, and where the fact of settlement is disputed.</p>

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

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

Assumpsit upon an agreement whereby plaintiff was to furnish a quantity of railroad ties, mark them and deliver them at certain points, and defendant was to give up a certain promissory note given by plaintiff to one Atherton and assigned by him to defendant for collection. Plaintiff brings error.

<p>Appeal from Berrien.</p> <p>Foreclosure. Petition to set aside sale. Complainants appeal from the order granting the petition.</p>

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

<p>Exceptions before judgment from the Superior Court of Grand Rapids.</p> <p>Complaint for violating saloon ordinance. Respondent, was convicted.</p>

<p>Appeal from Yan Burén.</p> <p>Creditor’s bill. Defendants appeal.</p>

<p>Appeal from Calhoun.</p> <p>Creditor’s bill. Defendants Harriet and Mary appeal.</p>

<p> Costs on affirmance by equal division. </p> <p>Costs may be denied on affirmance, by the equal division of the court, of a judgm&nt in a complicated case.</p>

<p>Railroad injuiies — Child, MUed on railroad — Contributory negligerwe — Sex.</p> <p>Tlie question of negligence, where there is any evidence fairly tending" to prove it, is for the jury.</p> <p>Decedent was seen about to cross a railway track in a village, at a time when a train was approaching from one direction, and one backing towards her from the other direction. She was soon after found, dead outside the street limits on railroad grounds, having been run over by the backing train. Held, that her being found where she was, outside the street limits, did not of itself make out against her a case of contributory negligence.</p> <p>In judging of negligence all the circumstances are to be taken into the account, and among others the age and sex of the person injured, so-far as these are important.</p> <p>But it cannot be laid down as a rule of law that a less degree of care is-required in a woman than in a man; and an instruction to that effect is erroneous. The rule of reasonable care and prudence knows-nothing of sex.</p>

<p>Exclusion of testimony known equally to decedent — Indemnification..</p> <p>In a foreclosure proceeding by tbe executors of the mortgagee the testimony of tbe defendant mortgager is inadmissible under Act 155 of 1875 which prohibits a party from testifying to facts known equally to a deceased opponent.</p> <p>"Where the notes secured by a mortgage were missing and a foreclosure decree was allowed upon the theory that they were still in existence, ^ complainant was required to indemnify defendant against their enforcement in case they reappeared in the hands of strangers.</p>

<p>Indebitatus assumpsit — Mutual settlements — 'Private account books.</p> <p>Where parties have agreed to run their logs in a common mass and to supply each his share of. the expense thereof for the joint benefit., and one of them fails to do so and the other supplies the deficiency, the latter may perhaps have a right of action against him for damages, of which the cost of the extra labor supplied by him may be the criterion, but he has no right of action against him on the common counts so long as there was no agreement that he should make good the deficiency and so long as the cost of the extra.labor remains unliquidated.</p> <p>Where parties meet to adjust their mutual accounts in a settlement that shall cover all claims, and one of them withdraws, while some accounts remain unsettled, and refuses to go farther, the whole settlefnent is defeated and an action on the common counts will not lie to recover upon such items as had been agreed to.</p> <p>A bill of particulars cannot be tendered competent evidence by the introduction of private account books to sustain its charges.</p>

<p>Construction of contract — “More or less” — Written evidence of oral contract — Ambiguous requests to cha/rge — Notice of re-sale — Recoupment— Set off.</p> <p>A contract for a specified quantity, more err less, is valid where the parties-understand that a reasonable deviation from the amount stated shall not defeat the contract. Neld, that 473,000 feet of lumber was-enough to satisfy a call for 500,000, more or less, especially where the purchaser took away part of the mass and paid for what he removed.</p> <p>Where one of the parties to an oral agreement puts it in writing and the-other party refuses to sign it and denies its accuracy, the former cannot use it as evidence of the actual agreement in an action thereon.</p> <p>A contract provided that payment should be made 'in Canada currency or its equivalent in United States money. Neld, that in an action on the contract there was no ground for an exception to the court’s refusal to direct the jury to allow nothing for the difference in the-currencies where there was, in fact, no difference between them.</p> <p>Ambiguous requests to charge, if liable to mislead, are properly rejected.</p> <p>Where a contract purchaser did not take the goods and the vendor re-sold them and sued on the contract, held that a refusal to charge “that plaintiff had no right to sell without notice to defendant ” was not error, as it was not clear whether the party requesting the charge-meant notice of re-sale or of the intention to re-sell.</p> <p>It seems that notice of re-sale is unnecessary where a contract purchaser-refuses to receive the goods and the contract is silent on the subject, and the purchaser’s liability on the contract is not fixed by the price obtained on the re-sale.</p> <p>Recoupment of damages cannot rest on the breach of any other contract, than that in suit.</p> <p>Set-off is inadmissible in an action brought for the recovery of unliquidated damages on the breach of a special agreement.</p>

Trover'by Mrs. Stansell for chattels taken by Leavitt on a mortgage against the Warrens who had obtained the chattels from the Stansells under an arrangement, the nature of which is one of the questions in the case. The court below directed a verdict for defendant and. plaintiff brings error.

<p>Appeal from St. Joseph.</p> <p>Bill for accounting.</p>

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

<p>Error to Saginaw.</p> <p>Appeal from the disallowance of a claim against an estate. The claimant brings error.</p>

<p>Appeal from Superior Court of Detroit.</p> <p>Bill for accounting. Defendants appeal.</p>

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

Appeal by an heir at law from an order of the probate ■court confirming an administrator’s sale. The appellant brings the case up on certiorari.

<p>Abandonment of exceptions — Review of cases tried, without a jury — Affirm> anee of judgment.</p> <p>Exceptions not referred to in the arguments of counsel are presumed to have been abandoned.</p> <p>Where no written finding of facts is ashed fo? or made, the Supreme-Court cannot review the facts or evidence -in a suit at law tried without a jury.</p> <p>Judgment is affirmed where no question is presented which the court can consider.</p>

<p>Appeal from the Superior Court of Detroit.</p> <p>Bill to revive and foreclose a mortgage. Bill dismissed. Complainant appeals.</p>

<p>Statement of exceptions by referee — Presumption of regulcm'ity — Delay in forwarding bank drafts — Findings.</p> <p>Where no exceptions have been settled by a referee himself, the exceptions filed in the circuit court can bring up no questions except such as bear on the legal correctness of the judgment as sustained by the findings. The proceedings before the referee must be presumed regular. Abbott v. Mathews 26 Mich. 176.</p> <p>Bank drafts issued for negotiable purposes are not required to be forwarded at once for acceptance and payment, and delay for a reasonable time will not discharge an endorser, although longer than might be held reasonable in regard to mere private drafts not meant to circulate.</p> <p>Plaintiff, who was a ticket agent of the Michigan Central Railroad but acting on his individual responsibility in this transaction, accepted from various persons sums of money and a bank draft on New York on deposit, with a right in the depositors to recall their money or take tickets for an excursion to the West which was to leave on the 14th of April, 1875, the draft being received on the 9th. On the 14th the parties took their tickets, and plaintiff on the next day in the usual course of business made up his ticket account and' forwarded the draft. The referee held the delay reasonable. Heldr that this finding was not legally erroneous.</p> <p>A finding cannot be disturbed unless in violation of some rule of law..</p>

<p>Homestead — Land unoccupied when attached not exempt.</p> <p>Land under attachment levy cannot be brought within the homestead exemption merely by occupying it before the levy of execution.</p> <p>An attachment lien binds until an execution can be levied.</p> <p>An execution levy relates back to the levy of an attachment so as to hold the interest then owned by the defendant.</p>

<p>Ditches — Xngwies to lands.</p> <p>A man obtained permission from the overseer of highways to clear out a certain ditch “if it would benefit the road.” Seld, that his brother could not maintain an action against the overseer for injuries done his premises by the improvement.</p>

<p>Appeal from Macomb.</p> <p>Bill to enforce execution of a trust.</p>

<p> Damages for obstruction of ditch. </p> <p>Irregularities in tlie proceedings for laying out a public ditch cannot be relied on as a defence in a merely collateral action for obstructing it, if it was laid out by a commissioner and constructed by the parties or with their consent, even though the defects would have been fatal if seasonably objected to by proper persons.</p> <p>If, by common consent, a ditch is dug as a neighborhood drain it ought, to be governed by the rules that apply to other water-courses; and if parties concerned acquiesced, it is unimportant that they did not. originally agree to the exact line of the ditch.</p> <p>A trial court has a right, when adopting the language of the Supreme-Court, to add such consistent explanations as may be proper to adapt it to the facts of the case under consideration.</p> <p>If a person affected by the construction of a ditch did not consent to its being opened, or, if he did consent, but soon after claimed and exercised the right of building a rail fence in it, leaving space for the water to flow beneath, he is not liable for the obstructions of the ditch resulting subsequently from the settling of the fence.</p>

<p> Action for money had to plaintiff’s me. </p> <p>A married, woman having a mortgage upon which there was due principal and interest, gave to her husband the interest which was due and put the mortgage into his hands. The mortgagor exchanged the mortgaged lands for others under an agreement whereby he was to pay off the interest. He deeded the lands, and at the same time paid the grantees the interest on their promise to hand it over to the husband. The grantees, having failed to pay it, held, that the husband might maintain an action against them for money received to his use.</p> <p>'The wife subsequently purchased the lands subject to the mortgage except as to this interest, and then discharged the mortgage of record. Held, that this did not affect the husband’s right of action. -</p>

.Error to Kent. Replevin for a team and harness owned by plaintiff and used by her for the support of her family, but seized on an execution against her during her absence in Canada, where she had gone with intent to take up her residence. Thi& action was brought against the execution purchaser and was referred to a referee who found for defendant. On exceptions to his report, judgment was entered for plaintiff in the circuit court.

<p>Error to Midland.</p> <p>Case. Defendants bring error.</p>

<p>Error to the Superior Court of Grand Rapids.</p> <p>Garnishment.- Defendant brings error.</p>

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

Ejectment for lands conveyed to plaintiff by tbe heirs of one Lorenzo Thomas and claimed by defendant under a tax-deed. Defendant brings error.

<p>Error to Superior Court of Detroit.</p> <p>Assumpsit. Defendants bring error.</p>

<p>Error to Washtenaw.</p> <p>Appeal by an heir from a probate order allowing support to testator’s widow. The widow brings error.</p>

Assumpsit before a justice ou a promissory note. Defendant Foster pleaded the general issue. The suit was adjourned from time to time and when brought to trial defendant filed a plea puis darrein setting forth that she had been garnished in a suit against the plaintiff before another justice. The justice disregarded the plea and gave judgment for plaintiff which, on appeal to the circuit, was affirmed. Defendant brings error.

<p>Appeal from W ayne.</p> <p>Bill to clear title. Defendant appeals.</p>

<p>Acceptance of order drawn on general partner — Theory of action — Parol' change of contracts.</p> <p>Where H. was the general partner in a firm called H. & Co., an order-drawn on H. as “general partner,” and accepted in the firm name,, is to be treated as an order on and acceptance of the firm, and not an individual transaction.</p> <p>When plaintiffs have finished their proof and rested their case on one-theory, they cannot under claim of rebuttal put in a new and different case as a ground of recovery.</p> <p>A written contract cannot be varied by proof of previous verbal arrangements. A fortiori this cannot be done when the writing expressly declares that there are no verbal agreements which apply thereto.</p>

Replevin. Winchester had made a written contract with King to keep him supplied .for two years with a stock of goods which King was to pay him for at an advance of twenty-five per cent, on the invoice price; besides keeping the goods-, insured for Winchester’s benefit.

<p>Appeal from Van Burén.</p> <p>Divorce. Bill and cross-bill. Catherine Hoff appeals.</p>

<p>Jijectment — Claims for improvements — Location by plat — Vence—Acquiescence inpa/rtiiion line.</p> <p>Act 180 of 1875 provides that where claims for improvements are to be filed in actions of ejectment, a copy of the claim must be served on the plaintiff at least “ten days before the first day of the term at which such cause may be tried.” Reid, that this claim must be made before the first term of court after joining issue, and if postponed until a new trial, evidence under such a claim is inadmissible.</p> <p>Streets that have been opened in supposed conformity to a plat, and have heen long acquiesced in, should be accepted as fixed monuments in locating lots or blocks contiguous thereto or fronting thereon.</p> <p>Where parties claim under a common grantor who was in possession when he conveyed, the one who has a conveyance from him can maintain ejectment against the other.</p> <p>A request to charge is properly refused if the charge, as given, correctly presents the matter.</p> <p>A plaintiS in ejectment is not estopped by having put up a fence which he afterwards claims is wrongly located, unless it was built with the deliberate purpose, on both sides, of fixing the boundary, or unless its location is so acquiesced in by the other side as to bind the latter not to dispute the line so drawn.</p>

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

<p>Bankruptcy — Authentication of assignment.</p> <p>An instrument purporting to be a copy of an assignment in bankruptcy from the register to the assignee, purporting to be certified by the register, but not certified by the clerk, and not otherwise identified by acknowledgment or record, is not evidence under § 14 of the Bankrupt Law without further proof.</p>

Assumpsit. Defendants were merchant tailors and filed' a claim of set-off for the price of a suit of clothes furnished by them to a Captain Jones upon a supposition that plaintiff was to pay for them.

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

Assumpsit for labor and materials furnished in repairing a boiler. Defendants filed a claim for recoupment of damages on the ground that soon after the work was done the boiler leaked as badly as ever.

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

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

<p>Error to St. Clair.</p> <p>A-SSUMpsit. Plaintiff brings error.</p>

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

<p>Ejectment — Neglect to pay for improvements after judgment of restitution.</p> <p>In ejectment where defendant claims for the value of improvements, and the value is assessed, if the plaintiff recovers and does not file an election to take the value of the land without the improvements, the usual judgment of restitution should be entered, and then if plaintiff faffs to pay the assessment for improvements within a year, he is deemed to abandon the land to the defendant.</p> <p>Whether there is any constitutional objection to making statutes which give to occupants from whom lands are recovered the value of then improvements, apply to the improvements made before their passage, quaere. There certainly is none where the statute under which suit is brought is the substitute for another which would have allowed the recovery, and which was in force when the improvements were made.</p> <p>If there is any reason why, under the law, a defendant is not entitled to recover the value of his improvements, the plaintiff should make the objection in the circuit court. If in that court an assessment is made in defendant’s favor, and the case is then removed to this court, the assessment will be presumed properly and legally made unless the record shows the contrary,</p>

<p>Appeal from Tan Burén.</p> <p>Foreclosure. Defendants appeal.</p>

<p>Erroi; to Clinton.</p> <p>Proceedings under Comp. L. ch. 211 to recover possession of lands. Complainant brings error.</p>

<p> Approval of administrator’s bond by probate judge. </p> <p>A probate judge cannot arbitrarily reject an administrator’s bond, but he has the right to require the sureties to justify if there is any reasonable doubt of their responsibility; and the Supreme Court will not interfere with such an exercise of discretion unless in a clear case of its abuse.</p>

<p>Taaration — Return of county taxes — Liability of township fm' defamM of town treasurer — Mandamus to enforce collection.</p> <p>A townsMp must make good the defaults of its treasurer in not accounting for the taxes belonging to the county. •</p> <p>A town treasurer is bound to account either in money or in the return of unpaid taxes to the full amount of the tax levy put in his hands for collection.</p> <p>The right of the county to charge such deficiency over to the town is not lost by the failure to have it added to the next year’s taxes; and there is no statute preventing the enforcement of its collection by mar* damns at any time within ten years. The question whether the (cn years’ limitation applies is not raised by this record and not, therefore, considered.</p>

<p>Appeal from Kent.</p> <p>Creditor’s bill. Defendants appeal.</p>

<p>label affecting 1/rañesman — Publication in foreign language — Damages.</p> <p>A newspaper article charging a druggist with, making as well as selling counterfeit Haarlem Oil, and putting it in counterfeit wrappers, is libelous.</p> <p>Proof that purchasers of oil from plaintiff returned it and gave the printed article as a reason for not keeping it, is admissible without calling such persons as witnesses. Reasons given in connection with such return are part of the res gestee, and not to be treated as hearsay.</p> <p>Proof of sales may be made without introducing the books of the business.</p> <p>The presumption is that an article in the Dutch language, printed in a local Dutch newspaper of large circulation, is understood by its readers without an English translation.</p> <p>A declaration averring injury to plaintiff’s business and reputation among bis Holland fellow citizens, does not put plaintiff to proof that tbey are citizens in tbe tecbnical sense. All persons are citizens in tbe ordinary popular sense.</p> <p>It is not erroneous for a court to inform tbe jury in an action of tort wbat amount of damages will cany costs.</p>

<p>Appeal from Kent.</p> <p>Bill for partnership accounting and for appointment of receiver. Defendant appeals.</p>

<p> Bstoppel from denying power to contract or mime of consideration </p> <p>"Where one who has contracted with a corporation for the exclusive right to manufacture and sell a certain patented article, has received the full "benefit of the contract, he cannot, in an action against him thereon, deny the authority of the corporation to make the contract, especially if the stockholders are satisfied.</p> <p>Where a contract for the exclusive right to sell a patented article on payment of a royalty is made by a person who owns a conflicting patent, and the agreement is made for the express purpose of avoiding any conflict and for dividing the royalty, he cannot, in an action against him on the contract, question the validity of the plaintiffs’ patent.</p>

<p>Error to Mecosta.</p> <p>AssuMPsrr. Plaintiffs bring error.</p>

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

<p>Quit-claim from mortgagee — Pwtial foreclosures.</p> <p>A quit-claim obtained by the mortgager from the mortgagee of premises, for the purpose of perfecting title by redeeming from a sale on partial foreclosure, cannot be construed as discharging the entire mortgage.</p> <p>The practice of foreclosing for small instalments of interest is condemned as oppressive.</p>

<p>Gift of personalty in tnist — Appropriation.</p> <p>Property put by a father in the hands of a third person to be delivered' to his daughter upon his death, is sufficiently appropriated to belong to her after his death occurs.</p> <p>Such a trust concerning personalty does not come within the Statute of Frauds, and need not be shown by writing.</p>

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

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

<p>Excessive judgment — General exceptions.</p> <p>A mere general exception to a judgment cannot properly raise the point' that it exceeds the amount fixed by the bill of particulars; the question should be raised by calling for a special finding and claiming that it does not support the judgment, or by taking a ruling on the point and excepting to it.</p>

<p> Examination as to whether plea of guilty is nolunia/ry. </p> <p>A plea of guilty cannot be supposed to have been made ignorantly or under compulsion where respondent had counsel and first pleaded Not Guilty and after a delay of three weeks came into court and by leave of the court withdrew the plea and pleaded guilty and it affirmatively appeared that the judge made inquiry to satisfy himself that his action expressed his real desire.</p>

<p>Action against special bail — Affidavit.</p> <p>In an action against special bail it is for the court to determine whether the declaration in the original suit set up grounds of action not covered by the affidavit for bail.</p>

<p>Appeal from Genesee.</p> <p>Bill to enjoin ejectment suit.</p>

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

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

<p>Appeal from Kent.</p> <p>Injunction bill.</p>

Case made from Kent. Appeal from a decision of the' probate court denying claimant’s right to share in the effects of the estate. The circuit court affirmed the order.

<p>Appeal from Shiawassee.</p> <p>Bill to revive partition proceedings. Defendants appeal.</p>

<p>Error toMthe Superior Court of Grand Kapids.</p> <p>Trover. Defendant brings error.</p>

<p>.Beceipts — Money paid de son tort — Physician’s testimony — Praud and covin — Confidential advisei- — Trust.</p> <p>A receipt for money paid in the alleged interest of a third party is not evidence as against him.</p> <p>'Where unlawful proceedings are taken to enforce an alleged liability, a third person who knows their character but, on pretence of befriending the party held liable, binds himself to pay money for the latter’s release, pays it in his own wrong and establishes no legitimate claim-for reimbursement.</p> <p>In a chancery case where testimony was taken before a commissioner, an attempt was made to impeach the character of one of the parties,, and a physician testified that he had attended upon a woman who had a private disease and who was said to have been employed in the family of this party. Reid, that this testimony was utterly incompetent, and that in giving it the physician grossly violated the rules of professional ethics and the statute which prohibits physicians from revealing facts concerning their patients; that the commissioner might well have refused to take testimony given in such plain violation of law; and that if it had been called to the attention of the judge he should have stricken it from the record of his own motion and at the cost of the party who took it.</p> <p>The statutory rule prohibiting physicians from disclosing information obtained in attending patients is for the benefit of the patient and not the physician, continues in force indefinitely, and can only be waived by the patient.</p> <p>A sale of land for an exorbitant price may be set aside in equity even' though the purchaser bought with full knowledge of its value, if the-vendor has compelled the sale by taking advantage of the possession' of a fictitious claim against him.</p> <p>One who places himself in the position of confidential adviser of a person who seeks his aid to escape from threatened criminal proceedings, and to settle charges brought against him, is a trustee, and has' the burden of showing good faith in any bargains or transfers which-he may meanwhile make with the iserson who thus relies upon his-advice.</p> <p>■When a man is addicted to a habit which enfeebles his intellect and his power of self-protection, a person who spends day after day in driving hard bargains with him can not obtain their enforcement in equity if he does not make a very clear showing of open dealing.</p> <p>The law must not be so administered as to encourage dishonest people to cultivate the depraved habits and appetites of others for greater facility in overreaching them.</p>

<p>Frauds upon creditors — Domestic transfer — Glia/i’ge to jury.</p> <p>Where the good faith of a transfer from a son to his father is in question in an action of replevin brought by the father to recover the property after it lias been seized on an attachment against the son, it is-not. leading and it is proper to ask a witness who aided in the transfer, whether there was any suggestion by the parties that they Avere seeking to avoid creditors, or anything of that kind; it is also proper to ask the attachment debtor whether any portion of his object in making the transfer was to delay, hinder or defraud creditors.</p> <p>A charge to the jury must be considered as a whole in reviewing the-case, and the jury must' be presumed to have had sufficient intelli. gence to understand the significance and application of the several propositions, and to have regarded them alike in reaching their conclusions.</p>

<p>School districts — Division of territory and, of property.</p> <p>A township board has jurisdiction of appeals from decisions of the board of school inspectors fixing the amount to be paid by an old school district to a new one where the latter comprises part of the same-territory, and the former retains the school property. Comp. L. §§ 3044, 3734.</p> <p>Whether a board of school inspectors is competent to fix the amount to-be paid by a district for school property which it retains when another district is set oil from it, so long as the actual ownership of the property is in doubt — Q.</p>

<p>Qua/rdian’s sale — Petition for license to sell — Signature to report — Construction of judicial opinions.</p> <p>A guardian’s petition to the probate court for license to sell the real estate of his ward is not fatally defective for not being sworn to; and as it is not required by statute to be signed, it is sufficient if it describes the guardian and he presents it in person.</p> <p>Expressions in a judicial opinion have no controlling force where they do not purport to give the views of the court or the settled conviction of the writer, and especially where the subject to which they relate is not material to the decision and is not decided.</p> <p>Probate courts are courts of record and may properly enter upon their records all petitions for license to sell land. Comp. L. § 5193.</p> <p>A guardian’s sale is not invalidated by the fact that the guardian has not signed the report of sale: the defect may be supplied by seasonable amendment under the order of the probate court. Comp. L. § 4633.</p>

Replevin by Mayer & Kirchner for goods sold to the defendant Robert J. King, who did not pay for them, hut mortgaged them to Alexander Toll, from whom they were purchased, subject to Toll’s mortgage, by the defendant Adeline C. Hotchkiss, who was a creditor of King’s, and who afterwards purchased the mortgage for her own protection. Defendants bring error.

<p>Usage — Estoppel by settlement.</p> <p>Where business usage requires an employee to make full showing of his-claims against his employer for the purposes of a complete settlement, his deliberate concealment of a claim estops him from relying upon it afterwards, and the arrangement and comparison of mutual demands must be regarded as a final statement of his claims which it would be a fraud to disturb.</p>

<p>Practice in Supreme Court — Concessions of counsel — Attacking a judgment in replevin in a suit on the forthcoming bond.</p> <p>Where the Supreme Court has based its judgment upon the concessions of counsel it is nevertheless not precluded, on another trial, from questioning the legal soundness of these concessions; it seems, however, that the parties themselves are not at liberty to dispute the ground of the judgment, but must be governed throughout by the rule first laid down.</p> <p>It seemA that when sued on a forthcoming hond the sureties are entitled' to attack the judgment in replevin by showing that they had a special interest in the property (Comp. L. § 6768), as, e. g., that one of them held a chattel mortgage on it which antedated the levy on which the suit was grounded.</p>

<p>Tiial — Charge to the jury — Bias of judge.</p> <p>' An exception to a charge on the ground that the manner in which the judge submitted the case and his comments on the evidence gave undue prominence to whatever would tell in the appellee’s favor, and thereby unfairly prejudiced the appellant’s case, cannot have weight if the bias of the judge is not manifest in the charge so that .there is reason to believe the jury were improperly influenced. And the charge should be considered together, and not merely by detached passages.</p>

<p>Warehouse receipts— Usage — Sale or bailment.</p> <p>A firm of merchant millers received wheat from, farmers and stored it in the mill elevators giving receipts for it in the following form:</p> <p>"No. 96. 820 bus. Orescent Mills.</p> <p>Grand Rapids, Mich. , March 36, 1878. Received of William B. Ledyard by L. Byrne 830 bushels No. 1 wheat at owner’s risk from elements, at 10 cents less Detroit .quotations for same grade when sold to us. Stored for-days.</p> <p>Hibbard & Graff.”</p> <p>Nothing was charged for storage, but the millers used the wheat as they needed it in their manufacture and-its identity was constantly-changing in the elevators. Held, that in the absence of local usage lo the contrary, or of a course of dealing between the parties by which a different effect should be given them, the receipts should be construed as evidence of a bailment instead of a sale.</p> <p>Warehouse receipts for grain received in store must be construed by their terms and by commercial usage. In commerce they would be understood to represent the title to the quantity of grain specified, and changes in bulk caused by delivery and shipments would not affect the title of the holder of receipts, and he could call for his proper quantity so long as so much remained in store. Nor would the consumption of the grain by the warehouse owner make any difference so long as the quantity is kept good. But ií the grain is all consumed by the owner’s express or implied consent, it may fairly be assumed that the owner and.the receiptor have agreed upon a sale to the latter, especially if the receipts imply that the bailment may be converted into a sale at the option of the parties.</p> <p>Where grain is stored under contracts reserving to the owner an option to treat the transaction either as a bailment or as a sale, the fact that he has always chosen to treat it as a sale is net conclusive evidence that any particular storage is to be so regarded until such choice is indicated.</p> <p>Usage cannot change the written stipulations of parties, though it may aid in explaining their terms and perhaps add incidents in respect to vUch they are silent.</p> <p>Usage must be certain, definite, uniform, and notorious to be admissible in evidence.</p>

<p>Case made from Bay.</p> <p>Assumpsit. Defendants bring error.</p>

<p>Appeal from Kent.</p> <p>Injunction bill.</p>

<p>Probate law — Administrator’s account — Appeal from allowance removable on writ of error — Foreign probate — Admission of evidence— Exclusion of testimony Ictwwn equally to deceased party — Discretionary allowance.</p> <p>On appeal from the allowance of an administrator’s account, the account itself and the exceptions filed' thereto are a sufficient presentation of the issue, and the administrator need not file a declaration.</p> <p>A residuary legatee under a will probated elsewhere need not have it • probated in Michigan to entitle him to appeal from the allowance of an administrator’s account by a Michigan court of probate.</p> <p>The probate of a will in another State is sufficient to entitle a devisee to be hoard in Michigan in any administration proceedings which are essentially in rem and without parties.</p> <p>Administration and legal execution cannot be had in Michigan under wills probated elsewhere, until they are probated in Michigan also.</p> <p>Where a proceeding in the probate court involves common-law questions and stands in the place of a suit at law, it takes the form of a common-law action, on appeal to the circuit court, and there it is proper and not unusual to provide for making up -a common-law issue which will be removable to the Supreme Court on exceptions by writ of error. But the case is not necessarily to be treated in the 'circuit precisely as an action at law would be, as, for example, where questions are involved which ought not to go to a jury.</p> <p>An appeal from the allowance of an administrator’s account, or from his final accounting, is removable on writ of error and exceptions.</p> <p>Appeals from interlocutory probate orders cannot take the form of a common-law action, nor can proceedings for the removal of an administrator or the appointment of a guardian.</p> <p>All questions in probate proceedings that are reviewable by the Supreme Court- are removable thereto on writ of error, there being no provision for appealing such proceedings to that court, as in chancery.</p> <p>On error the Supreme Court reviews the action of the court below on questions of law only, but examines its conclusions on questions of fact for the purpose of determining such questions of law as arise on them.</p> <p>Judgment in a case tried without a jury will not be reversed merely for the admission of improper evidence, unless -it is clear that it affected the judge’s conclusions.</p> <p>In cases tried without a jury greater strictness in the application of the rules of evidence is required where testimony has been rejected than where it has been admitted, especially if it was oral and its exact bearing and extent and not be understood from the record.</p> <p>The statutory rule that in a suit to which the heir, personal representative, etc., of a decedent is a party, the opposite party cannot testify to matters equally known to the decedent (Act 155 of 1875), does not apply to a case where the beneficiary under the will of the heir is the party on one side and the administrators of the estate, on the other.</p> <p>The conclusions of a trial judge upon a question of fact must stand where the record does not show them to be manifestly wrong and so opposed to other findings as to be erroneous in law.</p> <p>Special allowances to administrators for their services are within the discretion of the probate judge, and of the circuit judge, on appeal, and cannot be overruled by the Supreme Court if there were facts which fairly called for the exercise of the discretion.</p>

<p> Partnership liability on paper as between firms of the same name. </p> <p>A firm of three partners, engaged in running a particular mill, temporarily arranged to take in another partner and run an additional mill as another firm. Both firms, however, had the same name and used the same letter heads upon which the names of all four partners were' printed, hut the business of the two mills was kept distinct. The second mill kept no bank account but borrowed from the first when necessary, and kept its account with it. One of the original partners made a note in the firm name and discounted if and in an action upon it by the bank which advanced money on it the jury found' that the bank in making the loan relied exclusively upon the credit of the original partners. It was not claimed that the money was borrowed or used for the benefit of the later firm. Held, that the additional partner could not be held liable upon it.</p>

<p>Ohattel mm'tgage on stock of goods — Agency to buy stock — Assent of partner —Partnership business — Special questions.</p> <p>An insolvent debtor made a chattel mortgage on his stock of goods to a particular firm of creditors who did business in another town, and recorded the mortgage without their request or knowledge. One of the firm, however, took nominal control of the business, putting their sign over his door and starting a bank account in the firm name, but leaving him to cany on the store as their agent, with the caution not to get it in debt. The agent carried on the business for over four years and made purchases on credit, and one from whom he had so purchased afterwards brought suit against the firm for the purchase price of goods. Seld, that very slight circumstances of knowledge or assent on the part of the other partner ought to be enough to make the firm responsible for acts done by the agent while keeping up the stock in the usual way.</p> <p>Where one member of a firm has taken a chattel mortgage on a stock of goods to secure a debt to the firm, he has authority, as partner, 'to take goods in payment of the debt and to create an agency for selling them by putting them in tbe mortgager’s charge, and if he thinks that keeping up the stock is the best way to sell the goods to advantage, slight evidence of his partner’s assent is enough to make the firm responsible for the agent’s acts in purchasing goods for that purpose. And secret instructions to the agent will not enable them to escape responsibility for acts which, in the usual course of the business, the public would have a right to understand were authorized.</p> <p>Where a firm doing business in one place take charge, under a chattel mortgage, of the business of an insolvent debtor in another place and leave him to carry it on in their name, it is not negligence for others to sell to the agent on the responsibility of the firm without inquiring into the agent’s authority; the firm must take the risks of the arrangement, which is of a questionable nature.</p> <p>The question whether the carrying on of a specified business is within the scope of a partnership .is a question of law rather than of fact.</p> <p>It is not error to reject a special question to the .jury where it involves law rather than fact and is covered by instructions.</p> <p>Inconclusive special questions to a jury may be rejected.</p>

<p>Appeal from Baraga.</p> <p>Foreclosure. Defendant Edwards appeals.</p>

<p>Action for purchase price of personalty — Assumption of defence — Bevocation of license.</p> <p>Where the vendee of personal property retains and converts it to his own use he may resist a suit for the purchase price on the ground that his vendor had no title, if the claimant himself, to save a multiplicity of suits, has assumed the defence under an arrangement that the vendee shall pay him for the property if the defence prevails.</p> <p>An oral permission by the owner of land to cut timber thereon is a mere license and is revoked by the death of the licensor.</p> <p>Where the claimant of personalty sold by another assumes the defence Of an action for the purchase price brought by the vendor against the vendee on the understanding that if the defence prevails the vendee will pay the claimant instead of the vendor, the judgment concludes the claimant’s rights as between vendor and vendee.</p>

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

<p>Exceptions before judgment from the Recorder’s Court of Detroit.</p> <p>Information for murder. Respondent was convicted.</p>

<p>Murder by poison — Degree of murder — Order of proof — Malice—Drawing jury — Witnesses—Separate examination — Credibility—Conviction of felony — Beading books to jury — Expert evidence.</p> <p>Murder by poisoning is murder in the first degree and a jury should be so charged where the information does not state its degree, or the mode of its commission.</p> <p>Where a jury does not find that a crime is in the first degree it is error for the judge to punish it as if it were.</p> <p>In prosecutions for homicide the corpus delicti must be shown first, so far as the testimony can be separately given, and especially so far as can be shown from post mortem examinations.</p> <p>In a prosecution for murder proof of malice alone has no tendency to prove that death was caused by crime, until the fact of death by criminal means has been shown, proof of malice may then become relevant to show a motive.</p> <p>The Jury Act of 1877 (Act 125 of 1877) requires the names of jurors to be drawn in turn from separate parcels containing names from each precinct in the county. There is also provision for ordering tales-men to be drawn from a single township where the emergencies of the term do not leave time for summoning them from the county at large. But a jury drawn three weeks before trial for a particular case of homicide is illegal if taken from only part of the townships in the county and those not adjoining the county-seat nor including the locality of the offense.</p> <p>Respondent’s request, in a case of homicide, that the witnesses may be examined separately and not in one another’s presence, should be granted, if seasonably made.</p> <p>In a criminal prosecution the names of witnesses cannot, against objection, be added to the information without a showing that they were not known earlier and in time to give defendant notice in season to anticipate their presence before trial.</p> <p>It is error, in trying a criminal case, to exclude questions as to the conduct of the prosecution in seeking to induce the witness to suppress testimony or volunteer improper testimony.</p> <p>Experts cannot be examined upon theories that are contrary to the uncontradicted facts of the case.</p> <p>¡Ho inference can be drawn against a respondent from the refusal of a witness to answer questions for fear of criminating himself.</p> <p>Former convictions of felony may be shown as bearing on the credit of a witness.</p> <p>Expert testimony is legally admissible on the ground, only, that ordinary jurymen have no such special knowledge as will enable them to understand the facts shown, without interpretation; it must therefore be given by living witnesses who can be cross-examined; and the reading of scientific books to the jury, as evidence in itself, is error.</p>

<p>Embezzlement — Allegation of value — Banlc-paper—Time of offence.</p> <p>An information for the embezzlement or statutory larceny of “ money ” is defective for not stating its value if the money embezzled consisted of checks and certificates of deposit. But the defect is open to amendment.</p> <p>There is no legal presumption, for the purposes of a criminal prosecution, that bank notes, checks, bills of exchange and other securities for money are worth the sums which they represent, or any sum.</p> <p>Comp. L. § 7811 provides that in a prosecution for embezzlement evidence may be given of “ any such embezzlement committed within six months next after the time stated in the indictment.” Held, that under this statute an information for embezzlement cannot be sustained by evidence of acts committed before the time stated.</p>

<p> Respondent’s presence in court. </p> <p>After the regular conviction of a person charged with crime he can no longer insist on being personally present in court for farther proceedings, such as the disposition of a motion for a new trial.</p>

<p>Error to the Superior Court of Grand Rapids.</p> <p>Information for obstructing an officer. Respondent was-convicted and brings error.</p>

<p>Objections to evidence — Charge.</p> <p>Respondent in a criminal prosecution cannot complain of tlie admission for the prosecution of facts which the defence proved at a later stage of the case.</p> <p>The defence in a criminal case cannot insist that the judge shall charge the jury argumentatively or comment on the evidence or point out the weak points in the case for the prosecution so far as they involve questions of fact and not of law. It can only demand that the instructions on the legal points shall be correct, and that the evidence shall not be commented upon or presented in an incorrect or unfair way.</p>

<p>Error to the Recorder’s Court of Detroit.</p> <p>Information for robbery.</p>

<p>Tenants in common — Injunction against alteration of building</p> <p>A widow lmd a dower interest in the west half of a hrick building consisting of four stories and a basement, and standing in a wholesaling neighborhood. The owner of the east half also owned the reversion of her portion. There was no communication between the two parts'below the second story, and there was only one set of staircases, which was on the east side. The owner of the east half proposed to take out the stairway and completely close all communication between the two halves of the building. The widow sought a perpetual injunction against these changes on the ground that she had an easement in the stairway appurtenant to her life estate. Held that the injunction would not lie. The changes tended to increase the value of the building; the stairway was not a way of necessity, nor was it shown tó be intended as a permanent appurtenance to the life estate, and its removal would benefit defendant more than it would injure complainant.</p> <p>A tenant for life is left to make the property available to his profit at his own expense.</p>

<p>Correction of deed, — Inchoate dower rights — Party.</p> <p>The owner of three adjacent lots, one of which was on a corner and each of which was 40 feet wide, had his house partly on the corner lot, leaving 38 feet of it unoccupied. In deeding a parcel on the corner he described it as 40 feet in width, but afterwards claimed that he had only sold 30 feet and filed a bill to have the deed corrected. The grantee did not pretend that he supposed that he was buying any part of his grantor’s house. Held, that in view of the evidence a decree correcting the deed would not be disturbed.</p> <p>The wife of a grantee of land has an inchoate right of-dower which would be affected by a decree correcting the deed, and she may therefore be properly joined as defendant to a bill filed for that purpose.</p>

<p> Affidavit of non-execution. </p> <p>In an action brought before a justice against two persons as partners charging them as makers of a promissory note process was served on only one of the defendants and he filed an affidavit of non-execution reciting that he did not sign the note nor authorize any person-to sign it for him. Held, sufficient.</p> <p>An affidavit of the non-execution of an instrument sued upon should not be construed technically, but should be held sufficient if evidently intended in good faith to meet the plaintiff’s case.</p>

<p>Appeal from Washtenaw.</p> <p>Bill to set aside deeds of land and transfers of personalty. Complainant and defendant Warren Babcock, Sr., appeal.</p>

<p> Evidence of contents of alleged subsequent will. </p> <p>Where a will is contested on the ground that there was a later will, th© existence of which proponents deny, the proponents can hardly object to parol evidence of its contents on the ground that the alleged will itself is the best evidence.</p> <p>Judgments cannot be reversed for errors that have not been excepted to.</p> <p>Evidence of declarations made by a decedent and tending to show a change of mind in regard to the disposal of his property and an actual alteration thereof are admissible, in proceedings to contest his will, to corroborate the testimony of a witness as to the existence and contents of a later will; and the-rejection of such evidence is irreconcilable with the admission of evidence offered by the proponents to disprove such testimony, and is prejudicial to the contestants.</p>

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

<p> Evidence of contract relations and, of account stated. </p> <p>Testimony that pay-rolls are all made out in the name of a person from whom the workmen receive their wages at stated intervals, tends to show contract relations between them.</p> <p>Where a merchant furnishes goods to workmen on orders from their employer and receives his pay from the employer on presentation of the orders, the amount being fixed by the orders and deducted from the wages of the workman, the arrangement is evidence of an account stated. And in an action by the merchant against the employer for the amount due him it is proper to sue as for moneys had and received by defendant to plaintiff’s use.</p> <p>A plaintiff in error cannot complain of a judgment that rests on a charge which favors him too much.</p>

<p>Arrest pending release on bail — Mandamus to vacate capias — Costs.</p> <p>Where appearance bail has been accepted from a person arrested on » criminal warrant issued by a justice, he cannot, pending his release on bail, be arrested on a civil capias for the same matter at the suit of the same complainant.</p> <p>Mandamus lies to vacate the service of a civil capias wrongfully issued.</p> <p>Costs on mandamus to vacate legal process may be allowed against the-person at whose instance it was put in motion.</p>

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

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

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

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

<p>Bill to quiet title — Complainants claim — Special clemurrer.</p> <p>’iyhere complainant in a bill to quiet title shows title in fee from the government and does not seek a relief based on priority, but attacks an adverse claimant, he is not bound to set out the evidences of his own title in his bill.</p> <p>A bill to quiet title must show in some way that defendant is setting up a cloud on the title, and either describe how, or explain why the method cannot bo described.'</p> <p>Under a bill to quiet title no relief can be granted on any ground which is not calculated to becloud the title.</p> <p>A bill to quiet title is specially demurrable if it merely states that the county records indicate that defendant has or appears to have some interest in said land by reason of certain tax titles executed to him by the Auditor General for delinquent taxes of specified years. It should give the date and description of the deeds and show where in the record^ they are recorded and whether defendant, claims all or only part of the land, and whether the interest claimed is entire or undivided. It should also show what defendant has done or failed to do, to complainant’s prejudice, and aver any neglect or refusal on his part to do justice.</p> <p>Where a bill is radically defective for want of definite averments, and is specially demurred .to accordingly, and the complainant does not amend it though he has the means of doing so, he is not in position to maintain his suit, and a decree in his favor may be reversed and his bill dismissed with costs of both courts. A</p>

<p>Appeal from Kent.</p> <p>Bill for accounting. Defendant appeals.</p>

<p>Certiorari to the Recorder’s Court of Detroit.</p>

<p> Replevin does not lie for goods in plaintiff’s possession. </p> <p>Replevin will not lie for property which, when levied upon, was left and has remained in plaintiff’s possession, even though he becamereceiptor for it to defendant.</p>

<p>Common counts — Evidence of agreement — labor contract.</p> <p>A man agreed for himself and his wife to work for specific wages and “good farmer’s living,” as long as the parties were agreed. He became dissatisfied and ceased work, complaining that the “living” was insufficient and unsuitable, and brought an action on the common counts to recover for his services. Held, competent for him to show the agreement, the services and their value, and the quality and amount of the “living.”</p>

Mandamus to compel tbe mayor of Muskegon and certain members of the common council to vacate a resolution whereby relator’s seat in the council had been declared vacant, and to require the respondents to treat relator as entitled to it. The charter of Muskegon provides that “ the common council shall be judges of the election, and the qualification of its own members, and shall have the power to determine contested elections.” Section 33.

<p>Autrefois acquit — Discha/rge of jury without verdict.</p> <p>A plea of former acquittal is prima facie sufficient if it shows that a jury-had been empanelled, and that the prosecution went into proofs by witnesses until they rested their case. This would entitle defendant to a verdict for or against him, and a discharge of the jury without a verdict would discharge the respondent unless there was some overruling necessity, and if there had been, it should be set up by ' replication to the plea.</p>

<p>Arbitration — Estoppel by representations and admissions — Land contract— Statute of frauds.</p> <p>Where an arbitration fails and litigation is begun, the decree therein cannot properly be based upon an award of the arbitrators, made out of time and not relied upon by either party.</p> <p>Arbitration commended as a proper mode of settling a complicated dispute involving inconsistent and diverse claims by both parties against one another.</p> <p>Vhere one of two joint-owners of undivided shares in land, offers, for himself and his co-owner, to sell their interests, and represents them as estimated to cover a specified acreage, and his offer is not accepted, hut an offer made by his co-owner is, his statement as to quantity will not conclusively bind him in a subsequent litigation begun by the purchaser for the partition of the lands, any more than if it had been casually made in oral conversation; and he will not be estopped from denying that his co-owner had the quantity stated, especially if the estimate given by the latter was lower. The purchaser cannot take advantage of the first offer while expressly denying that he claims anything under it.</p> <p>One cannot repudiate a contract and have the benefit of it at the same time; nor can he base an estoppel on the contract as against the other party any more than he can rely upon the promise while withholding the consideration for it.</p> <p>Statements made in a paper proposed as a contract may have weight if intelligently and deliberately made as • admissions of fact, even though the proposition is not accepted, but another contract is made; but if they are made by way of concession and compromise they may be entitled to no weight whatever.</p> <p>A land contract which, though written, does not describe a part of the lands nor point out any method for identifying them, is fatally defective under the Statute of Frauds. So held where a joint owner of .land purported, in selling it, to be acting for himself and his co-owners, but the quantity of land fell short of his representations and a compromise agreement was made which provided that the deficiency might be made up out of lands owned solely by the vendor, but there was nothing relied upon by either party to show what particular parcels could be taken.</p> <p>Where the owner of an undivided share in certain lands professes as agent of his co-owners, to sell their shares together with his own, and in doing so makes certain representations as to the quantity, in reliance upon which the purchasers pay him, he ought not afterward to be allowed to repudiate the representations; and if the quantity of land falls short, the purchaser is entitled to an accounting for moneys received beyond what was required to pay for the quantity actually sold.</p>

<p>Pleas puis darrein — Mispleading—Repleader—Estoppel by adjudication.</p> <p>A plea puis darrein continuance supersedes a previous plea to the genera! issue with notice of set-off, and places the issue entirely upon the new plea.</p> <p>Where suit was brought for a debt, defendant pleaded that the judge in-bankruptcy had given him a certificate that it had been adjudged that he had performed a composition witli his creditors and was entitled to a discharge. Held, that a replication which merely traversed Ihe effect of the adjudication and discharge tendered tin issue that was immaterial and not triable by a jury, and that if plaintiff thought actual performance of the composition was necessary to a defence, he should have demurred to the plea. But where-be made such replication instead, the defendant, if he relied on the certificate to defeat the action, should have demurred to it instead of going to trial on the issue.</p> <p>Repleader is never awarded in favor of the party beginning the mispleading and to whose error the subsequent mispleading is traceable.</p> <p>A plea of estoppel must be properly framed as such, especially in opening and closing, and it must set forth a claim that the plaintiff should-not bo admitted to make use of what the estoppel would exclude. The matter of estoppel alleged must be material and traversable, and if a judicial decision is relied on therefor, it must be so averred; and the decision must have been in a matter coram judiee.</p> <p>A plea of estoppel based on a judicial act which it does not aver as matter of estoppel in itself, but merely introduces as evidence and by way of argument and as a basis for a deduction, presents an issue which is a matter of legal inference only, and not traversable.</p> <p>A judge in bankruptcy has no authority to give a debtor a certificate that he has been adjudged to have performed a composition with his creditors and that the proceedings taken entitle him to a discharge; and such a certificate, if given, could not properly be pleaded as an estoppel against the plaintiff in an action against the debtor for a debt. The debtor is not released from liability unless he actually performs the composition and the question whether he has done so is open to trial, with or without a jury, in any court in which the debt might be sued for.</p> <p>A plea of estoppel puis darrein continuance, however defective in frame and substance, must be entertained if defendant rests his case entirely upon it.</p> <p>A plea of estoppel admits, the cause of action, and if the estoppel fails, judgment follows in due course against the defendant.</p> <p>A petition for the removal of a cause from a State to - a' federal court is not seasonably made if the cause has been pending in the State court for several terms.</p> <p>The^ Statute of Amendments cures technical errors in awarding interlocutory judgment, ordering an assessment of damages and giving final judgment, if on the entire record the result should not be dis- ■ turbed.</p>

<p>Witt* — Construction—Helease of debts of legatees.</p> <p>A will declared that “all the foregoing legacies are intended and5‘ declared to be for the individual estate of the said legatees, exclusive' of any indebtedness to me at this date or others. ” Held that this did not release legatees from any indebtedness .due from them to the-testator, but meant that their legacies should be paid them irrespective of their debts, which might be left to be collected in the ordinary-way.</p> <p>A testator’s intent to forgive a debt due him from a legatee should bet-clear and unambiguous to warrant that construction. -</p>

<p> Certiorari to review condemnation proceedings. </p> <p>A writ of certiorari removing condemnation proceedings to the Supremo Court was not retained by the court where the questions raised were such as could be raised by certiorari or appeal after the inquest of damages, and the retention of the writ was likely to do injury by delaying the proceedings.</p>

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

<p>Evidence — Conversation—Medfcal books.</p> <p>Where during a ride the driver of a horse has a conversation with his companion as to the horse’s appearance and condition, and the conversation tends to show that the driver is exercising due care, it is admissible for that purpose in an action against the driver for injury alleged to have been caused the horse by his ill-usage and neglect.</p> <p>Medical books may be read to a jury, not for the purpose of proving the fact therein stated, but to discredit the testimony of experts who claim to be familiar with them and refer to them as authority.</p>

<p>Certiorari — Buies of evidence in proceedings before supervisors — Affidavit of publication.</p> <p>The return to a writ of certiorari is conclusive as to the facts appearing: therein.</p> <p>In. proceedings before boards of supervisors for organizing new townships, the strict rules of law governing the introduction of evidence-in courts cannot be insisted upon.</p> <p>Comp. L. § 5927 providing that an affidavit by the printer of a newspaper that a specified notice was published therein, shall be prim»• facie evidence of the fact, does not exclude other proof; such as the-affidavit of some other person who knows the fact.</p> <p>The action of a board of supervisors upon evidence tending to show the due publication of a notice of proceedings to organize a township, will not be reviewed by the Supreme Court on certiorari, especially if there is no contradictory showing.</p>

<p>Actions against officers — Discontinuance.</p> <p>•Ctomp. L. § 0971, in providing that where it does not appear, on the trial of an action against an officer for official acts, that the cause of action arose in the county where suit is brought, the jury shall be discharged and judgment of discontinuance entered, applies to actions involving a trespass on land (Comp. L. § 5970), and covers cases where his process was defective; and when process is shown and that defendant assumed to act officially under it, the -objection to the venue may be raised on the trial, and is for the court alone to pass, upon. And the question of the official character of theact is not to be left to the jury.</p>

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

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

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

<p><Contract for delivery — Evidence—Vendor’s rep'esentations — Time—Construction of terms — Quality of material — Exceptions.</p> <p>\k contract was made for the delivery of timber, but after the time had expired the parties disagreed,' and assumpsit was brought for what had been delivered. Plaintiffs claimed that delivery had been post- ■ poned by mutual assent for the convenience of defendants. Meld proper to allow them to give evidence of other operations of defendants which would be accommodated by such postponements.</p> <p>Kn an action for the value of timber delivered under a contract there was no error in excluding testimony that before the contract was made, one of the 'plaintiffs had represented the timber as of specified dimensions, where there was nothing to show that the representation was ■ made to any one interested.</p> <p>\Where suit is brought for the .value of goods delivered under a contract, a charge which ignores the plaintiff’s showing that he had fully performed his obligations, except in certain respects assented to by defendants, and which assumes that he had not made a full performance, is misleading and erroneous.</p> <p>Where plaintiffs suing for the value of goods delivered under a contract show that delivery was made after the stipulated time by defendants’ desire, for defendants’ accommodation, a charge is wrong which requires plaintiffs to prove that they had given a separate consideration for the extension of time.</p> <p>AA contract for the sale of “timber now lying in YanEtten lake,” gave “the privilege of increasing the amount,” and provided that '‘all timber hereafter cut is to scale 12 inches and upwards.” Meld that this final clause did not cover the timber in the lake.</p> <p>3h an action for the value of a quantity of timber sold under a contract, there was no error in requiring the jury to ascertain whether it was of the quality specified iñ the contract, as understood by the pm'ties. Their understanding was material.</p> <p>JSrror cannot be based on an exception so indefinite as not to identify any specific proposition, or point out any distinct instruction.</p>

<p>Garnishment — Premature summons — Payment by gwnishee.</p> <p>A garnishee defendant is properly discharged if it appears that the summons in garnishment was delivered for service before the garnishee had become indebted by the delivery of the goods for which he had-bargained with the principal defendant.</p> <p>When garnishment proceedings are dropped on disclosure and are not-' carried to judgment the garnishee acts at his peril in making pay-ment to the plaintiff.</p>

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

<p>Fire insurance — Forfeiture for vacancy of premises.</p> <p>A fire insurance policy cannot be affected by the subsequent adoption of a provision that insurance shall be forfeited if premises are left vacant.</p> <p>Vacancy of insured premises is not such a change of risk as to forfeit a Are insurance policy thereon, without express agreement.</p> <p>Existing by-laws of a mutual insurance company are properly regarded as entering into contracts of insurance and binding the members where the policy is made subject to them. But a by-law cannot ■destroy a contract in force before its adoption.</p>

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

<p> Unliquidated claims cannot be used as a set-off. </p> <p>An unliquidated claim for rent and horse pasture cannot be set off where the amount has not been agreed upon or means furnished for definitely ascertaining what it should be.</p>

<p>Error to Kalamazoo.'</p> <p>Appeal from the allowance of a claim against the estate of John H. Moss, The administrator brings error.</p>

<p>Appeal from Wayne.</p> <p>Petition for writ of assistance. Defendant Robinson appeals from the, allowance thereof.</p>

<p>Itoery stable Iceepers — injury to horses from negligent keeping.</p> <p>.A livery stable keeper is not an insurer of the safety and care of the horses left in his charge.</p> <p>A horse, left at a livery stable over night, got untied and ate from a convenient hag of corn. In the morning his owner did not water him, hut drove him eighteen miles in the heat, and the horse became injured. Held that the stable keeper could be held responsible in case, only, it was found that he was guilty of negligence and /that the owner of the horse had not contributed to the injury, either in fastening the horse or in improperly driving him.</p> <p>‘When the owner of a horse finds that it has overfed itself at a livery stable, he is hound to resort to such measures as he may, to lessen the injurious results, and if he does so, the stable keeper, if found liable for the injury, will also be liable for the expenses incurred in attempting to lessen it; hut if he does not do so, and so treats the horse as to contribute to or aggravate the injury, the stable keeper will not be liable for so much of the injury as the owner is to blame for. ,</p> <p>An injured party cannot charge the entire damage upon the party inflicting the hurt, if he himself has increased the damage by wilfully or carelessly aggravating the injury.</p>

<p>Negligence — Presim/ption as to due care — Carriage of nitro-glycerine.</p> <p>.A. raSrc-sd company which, undertakes to accommodate another company by switching over its track a car loaded with dangerous merchandise, has a right to assume that the consignor has exercised due care ■ in packing it.</p> <p>A manufacturer of nitro-glycerine contracted with a railroad company for the transportation of a quantity, and the latter requested another railroad company to move the car loaded therewith some distance •over its track. The company so requested sent a switchman to perform the service, and he was killed by the explosion of a can while it was being loaded. The loading was done by employees of the manufacturer, and the switchman had no control or authority over them. He however knew the dangerous character of the work. Held that there was no ground of action against the company which employed the switchman for the fatal injury to him.</p>

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

<p>Construction of wills — Jtesiduarg devise.</p> <p>A man devised certain lands to his wife and in a further provision of his will devised the same lands to his children after the decease of his wife. Another clause devised them to iris wife “ during her natural life.” He then disposed of “all the residue of [his] estate, real, personal and mixed, * * * to have and to hold the same to her use and benefit, during her natural life, and then to be divided equally between [his children] or their heirs.” Held that after the wife’s death whatever remained passed immediately to the children and not-to the wife’s administrator.</p> <p>Where a will disposes of real and personal property in the same terms tlio testator’s language cannot receive one construction for one class • of property and another for the other unless the context requires it to-be differently construed.</p> <p>A will must be construed as a whole and its provisions harmonized to give effect to the testator’s evident intent.</p>

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

Mandamus. From the papers in this case it appears that proceedings were taken for the condemnation of lands in which •relator is concerned, on the application of another railroad company; that the respondent appointed commissioners who met on the 25th day of November, 1881, agreed ■upon and made up their report and filed it with the respond- ■ ent; that at the time of filing the parties were not present by .counsel, but the respondent returns that the court had been •bold…

<p>Exceptions before judgment from Recorder’s Court of' Detroit.</p> <p>Information for burglary. Respondent was convicted</p>