Volume 49 — Michigan Reports

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

<p>Error to Kalamazoo.</p> <p>Trove'R. Plaintiff brings error.</p>

<p>Case made from Kent.</p> <p>Trover. Defendant had judgment below.</p>

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

<p>Sede absolute — Ym'ianae—Fcdse representations as to solvency.</p> <p>Kn arrangement with, a miller to deliver wheat to liim to be paid for on delivery or at any subsequent time when payment shall be demanded, and with an understanding that the miller may use it in his milling business, is a sale absolute if no right is reserved to recall or return it.</p> <p>A declaration on the case charging defendant with having procured plaintiff to sell and deliver goods to him by making false representations as to his own credit, is not supported by evidence that defendant by making false representations of solvency and prompt payment, had obtained an extension of time on a debt already matured.</p>

<p> Bill to reach lands must be based, upon title. </p> <p>A bill in equity to reach lands of which complainant claims to have been defrauded cannot be sustained where complainant does not prove any title. And the defect cannot be cured by proof that defendant, after bidding in the lands at an execution sale against complainant, had verbally agreed to hold them for him, such a parol trust being .void under Comp. L., §§ 4120, 4714.</p>

<p>Obtaining goods on false pretenses — Mechanic's liens.</p> <p>An information for obtaining goods under false pretences, was not sustained where the pretence charged was that respondent owned a house and lot in a certain locality and was building an addition to the house and wished to bqy the articles for use in the building, while the proofs did not show how the pretence operated as a fraud or what good the fact would have done the complaining witness, or that respondent had been given to understand that the question asked him about his building was put for the purpose of learning whether it was safe to trust him.</p> <p>There can be no conviction under the statute against obtaining goods by false pretences unless respondent knows or has reason to believe that his representations are relied on as the grounds of credit.</p> <p>A mechanic’s lien in favor of the vendor of goods cannot be predicated merely on the purchaser’s statement that he has a house and is building an addition to it and wants the goods for that purpose.</p>

<p>Trust in personalty — Oral aeJcnowledgment — Consideration.</p> <p>A trust in personalty need not be in writing.</p> <p>An oral understanding with an absolute grantee that he shall hold the land for the benefit of the grantor and his family, is of no effect even though the grantee repeatedly declares and acknowledges the trust. Nor will he be liable for the mere appropriation of the proceeds of the land if he sells it to a third person. But if after such conversion he declares that he holds the proceeds in trust for the grantor, and by his acts recognizes his duty and their right, it seems that the fact that the land itself, according to his former acknowledgment, was held in trust, will operate as a good consideration to uphold his subsequent declarations and admissions, and will make him a trustee of the proceeds.</p>

<p>Oa/neellation of land warrants — “Assigns.”</p> <p>WLere tne Commissioner of the General Land-Office assumed to cancel a location of lands and tendered back the warrants on which the land had been located, the act of the holder in receiving back the warrants without objection and in using them to locate other lands amounted to such an acquiescence in the cancellation as would preclude him or his assignee from thereafter relying on the original location as a step in the proceedings necessary to entitle them to a certificate of the purchase of the land first selected.</p> <p>Comp. L., | 3991 provides that the “assigns” of any purchaser of United States lands whose purchase has been cancelled on the ground that they were swamp lands can buy them from the State on presenting his certificate of purchase and cancellation before the State has disposed of them. Held that this means only the ‘ ‘ assigns ” of the purchaser’s ownership or supposed ownership in the land itself, and not of a mere interest incident to the option remaining in the purchaser.</p> <p>An assignment requires the existence of some substantial interest to be assigned.</p>

<p>Bmhesdemeni — New trial..</p> <p>A. person was charged with embezzlement to an amount exceeding: $25, but there was no proof that part of the money came to his-hands and the remainder was less than $25. Held that a request for an acquittal was too broad, but that respondent should have had the benefit of the defect in proof under the request, and as a punishment for felony was unwarranted, he was entitled to a new trial.</p>

<p>Alternatwe sentence — Self-defense.</p> <p>A justice’s sentence to pay $40 in twenty-four hours or go to jail for sixty days, is allowable under Act 6 of 1881.</p> <p>One who commits an act of unlawful force and thereby brings on a conflict in which he assaults another, cannot excuse the assault by showing that the person assailed was reputed to be violent and that he acted in self-defence.</p>

<p>Error to Allegan.</p> <p>Proceedings under Act 164 of 1881 for removing school ■director. The director brings error.</p>

<p> Tender of payment. </p> <p>A woman engaged in her ordinary avocations, is not hound to know at all times what is owing her upon a mortgage, and to he ready to determine forthwith, without opportunity for examination and computation, whether she will accept any particular sum offered her; she must have reasonable opportunity to satisfy herself what her.rights are.</p>

<p>Appeal from Oakland.</p> <p>Foreclosure bill. Complainant appeals.</p>

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

<p>Ejectment — Life estate.</p> <p>A widow, whose husband died seized of land, and left neither parents nor children, has a life estate in the land under the Statute of Descents, and is entitled to possession until a superior right is shown; it is not a sufficient reason for disturbing it that there is a possibility that an administrator may be appointed who may be empowered to sell the land to pay creditors of the estate.</p>

<p>Lease — Chattel mortgage security.</p> <p>A clause in a lease, stipulating toy way of securing the payment of rent, that “all goods, wares and merchandise, household furniture, fixtures or other property which are or shall toe placed in or on said premises by them, shall be liable, and this lease shall constitute a lien or mortgage on said property,” does not cover the dwelling house upon the premises.</p> <p>General terms in a clause describing property encumbered thereby are limited to the class of property specified.</p>

<p>Wills~-Gonst7'uction — Sale by ezeoutm's.</p> <p>A will, after making gifts which exhausted the estate, contained the provision “I appoint John Murray and Henry Line as executors to sell and dispose of all my estate, and carry out the provisions of my Iasi will and testament according to the provisions therein named.” It was necessary to sell the real estate to pay the legacies. Held that the executors were not bound to obtain a probate license before selling. ■</p> <p>Wills are usually informal, and the question of construction is not so much what words are actually used as what was intended by them; the law favors testamentary arrangements, and when they contravene no rule of law they should be fairly interpreted and enforced according to then- real intent.</p> <p>A testator’s lawful power to control the disposition of his estate through his executors is not made dependent on probate supervision.</p>

<p>Mining lease — Enforcement of agreement by lessee to comey an interest in the title, when perfected — Lapse of time — Truth of bill in equity— Accounting for rents and profits.</p> <p>An unincorporated joint stock association, formed for mining, took a lease of the mining location under a permit from the War Department, and gave a certain Indian a written agreement declaring that in consideration of his services in hunting ores he was entitled to a specified portion of the company’s interest in the location. This agreement was ratified and confirmed on the hooks of the company, which afterwards passed, with its property, to a corporation organized mainly from the association. An act of Congress recognized the lease hy giving occupants thereunder a right of pre-emption, and the incorporated' company was allowed to enter the land and took a patent thereto. The Indian died, leaving a daughter to whose claims as his heir the attention of the president of the corporation was called, and he promised to settle with her if she had any rights. Offers were afterwards made for her interest, but the corporation finally refused to acknowledge that she had any rights. Meld, that the assignee of the daughter could maintain a bill against the corporation to secure the rights alleged to have been contracted to her father by the original association.</p> <p>Where the officers of an association have given a written agreement whereby the recipient is declared entitled to a specified portion of certain described land held by the association under a lease, and this agreement is ratified and confirmed on the books of the association, the objection that a subsequent verbal agreement to perfect the title and give him the interest, was void under the Statute of Frauds, was considered unimportant where this agreement also was ratified, confirmed and entered on the books, especially as the title was after-wards perfected, which fact, in itself, would have left the original agreement, if valid, sufficient, to assure the same interest.</p> <p>A lease of mining land from the War Department of the United States Government-, purported to give permanent rights, including a right of pre-emption. An act of Congress recognized tile control of the "War Department by providing for its transfer to the Treasury Department, and it also gave to occupants holding under War Department leases a right of pre-emption on certain conditions. Held, that this ratified such lease whether it was originally valid or not, and that one who held an agreement from the lessee entitling him to a specified share of the land when the lessee should obtain title, had a claim which followed the lessee’s purchase, and obtained thereby an equitable title which the legal owner held in trust for him, and which passed by descent and could be transferred by assignment.</p> <p>A written agreement signed by the officers of a mining association and declaring the other party thereto, for his services in hunting ore, entitled to a specified undivided share in certain described lands held by them under a lease, will be sustained as a valid agreement and declaration of trust for the designated interest in the title when that shall have been acquired by the lessee.</p> <p>Lapse of time alone does not necessarily operate as a disseizin in law or in equity.</p> <p>On appeal from the dismissal of a bill on demurrer, the bill will be assumed to be true for the purposes of the hearing, in the absence of any answer.</p> <p>An accounting for past rents and profits may be limited by a shorter period than the claim to the land itself.</p>

<p>Private ways — Petition—Jurors—Venire—Condemnation of la/nd.</p> <p>The objection, in proceedings to lay out a private way that the petition therefor was not sworn to, is waived if the parties proceed to strike a jury without objection.</p> <p>Jurors in proceedings to lay out a private way are not disqualified by having served in previous ineffectual proceedings, taken by the same person, for obtaining another right of way to reach the same lands.</p> <p>A statutory requirement that the venire for a jury in proceedings to lay out a private way shall be returned forthwith is practically met by making it returnable next day an one o’clock.</p> <p>Where a party to condemnation proceedings, instead of striking off a juror says he does not care which name is struck off and that the highway commissioner may strike one off himself, he cannot afterward object to the course taken.</p> <p>■One wbo has already a private right of way is not obliged to wait until bis easement expires before instituting proceedings to obtain a continuance of, or substitute for it, but may move a reasonable time before it expires.</p>

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

<p>Error to Ionia.</p> <p>Beplevin. Plaintiff brings error.</p>

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

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

<p> Forfeitures. </p> <p>A man made a land-contract- with a bank on which a certain sum was to be paid down, but wishing to obtain an extension of 30 days, he left in the cashier’s hands a note, payable to his- own order, and signed a separate agreement in which the cashier acknowledged that he held the note “as a forfeiture for the performance” of the land contract, and declared that if the said contract was carried out within thirty days the note should be returned; otherwise it should be forfeited. Just before the thirty days expired the purchaser obtained from the bank for a money consideration a second extension, but on the expiration of the first extension the cashier turned the note over to the bank as forfeited. Held that the purchaser could maintain trover for the note against the bank. The condition of forfeiture was discharged by the second extension on a new consideration, and there was nothing left for the agreement, by which the note was held in escrow, to act upon.</p> <p>Conditions of forfeiture, if valid at all, are limited by the strict terms of the contract, and cannot be enlarged under any rule of law.</p>

<p>Appeal from Gratiot.</p> <p>Bill to clear title. Dismissed below. Complainant .appeals.</p>

The affidavit for the writ sets forth as jurisdictional irregularities the fact that (1) as no land was taken from the township of Waterloo, the participation of the township board of that •township invalidated the joint action taken; (2) that no meeting was held by the joint boards to give notice of contemplated alterations in the boundaries of the districts concerned ; (3) that no proof of notice was made to the joint meeting; (4) that the notice actually given covered…

<p>Error to Mecosta.</p> <p>[Replevin. Plaintiff brings error.</p>

<p>City taxes — Council records.</p> <p>The charter of Pontiac requires the votes of all members of the council in relation to any act, proceeding or proposition had at any meeting, to be entered at large upon the minutes, especially where it relates to the assessment or taxation of property. Held, that a city tax, voted without observing this requirement, was invalid ; and that amendatory resolutions adopted by a later council, of which less than a majority of the old council were members, could not make it valid. But state and county taxes are not affected by the illegality, nor does the charter provision apply where the action of the council is formal and compulsory, as where it has to raise a school tax on a vote of the district and has no discretion concerning it.</p> <p>A city treasurer whose duty it is to collect city taxes and to make return to the county treasurer, and who has power to collect unpaid taxes by suit in the name of the city, does not act as a volunteer in paying over the amount of the city tax to the county treasurer even if he has not collected from certain individuals; his payment may be deemed to have been made to their use, and the city can maintain actions against them for the amount of their assessments.</p>

<p>Appeal from 'Wayne.</p> <p>Bill to vacate levy of execution and proceedings taken tbereon. Defendant appeals.</p>

<p>Error to Hillsdale.</p> <p>Information for arson. Respondent brings error.</p>

Information for larceny. Respondent brings error. The information was for the larceny of a gold watch, and chain from the person of a Mrs. Herrick Cornwell ■on the fair ground .at Ann Arbor. The watch was at once forwarded to Detroit in a package addressed to Mrs. Sarah Smith, and was delivered next day by the express company to the 'chief of police. It was meantime called for by Mrs. Sarah Brew, who presented the receipt for it.

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

<p>Mandamus — Order to show cause inconclusive as to remedy — Proceedings injustice’s court to recover possession — Complaint—Return.</p> <p>Mandamus does not lie where the remedy sought is the revision of a final •judgment on matters of record, and where everything necessary to a determination may he returned on writ of error.</p> <p>Whether mandamus is the proper remedy in a case is not determined hy an order to show cause why the writ should not issue. That point may he finally examined and determined at the hearing on the return of the writ, when hoth parties can he heard.</p> <p>A complaint filed with a justice in a proceeding to recover possession of premises, is not jurisdictionally defective in omitting the name of the defendant from the body of the instrument if there is enough in it to supply the name.</p> <p>A justice does not lose jurisdiction of a proceeding to recover possession of land merely because the constable does .not make return to the summons until an hour after the time fixed, if the parties are present and remain in attendance without objection.</p> <p>The remedy for mere formal defects in a complaint before a justice-to recover possession of lands is by motion in the circuit court.</p>

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

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

<p>Bailway injury — Opinion evidence — Fences—Oha/rge.</p> <p>iln an action against a railway company for the negligent killing of a child upon the track, it was held proper for the engineer, when asked why he did not see the child, to testify that the child could not possibly be on the track without his seeing it unless it got on from the ditch on the left-hand side of the engine. This was a matter of knowledge and not of opinion.</p> <p>A witness who swore to having been in the garden of her house which was by the side of a railway track, for several minutes before a train passed, and that she did not hear any whistle blown, was asked whether the whistle could have been blown anywhere near the neighboring station without her hearing it. Held, that this question was properly ruled out; it related to a matter of opinion and common observation and experience upon which the jury could have judged as well as the witness, when she had stated the facts as to distance and the existence of any obstacle.</p> <p>A jury has a right to disregard the positive testimony of a witness if they are satisfied from other evidence that it is erroneous, even though they do not think it intentionally false.</p> <p>In an action against a railway company for the negligent killing of a person on the track, it appeared that strangers were in the cab of the engine with the engineer. Held that when the place has been described to the jury, and the situation of the'several persons, it cannot be said that the engineer might not be permitted to testify that their presence did not interfere with the performance of his duties ; the jury could not judge of this fact as well as the witness.</p> <p>■Where a witness’ opinion would be admissible in support of an action, it would be equally admissible against it if it were the other way.</p> <p>"Where there is no statute requiring a railroad company to fence its track for the prevention of personal injuries, a charge that if a fence would have prevented such injury it was negligent not'to have had it, is all that can be asked in an action therefor against the company.</p> <p>.Instructions to the jury are rendered immaterial where the jury find that the case does not turn upon the matters discussed.</p>

<p>Contracts — Bes gestm — Assignee's ‘right — Employee's admissions — Memoranda, on books of business — Delivery and acceptance of contract —Exclusion of evidence — Facts known to decedent.</p> <p>The assignees of a contract to sell and deliver logs brought suit upon it against the estate of the other party, who had died. They put in evidence a memorandum indicating, as they claimed, that evidence of the fulfillment of the contract existed on decedent’s books. It had no tendency in itself to prove this, but they were also allowed to show, in connection with it, a computation by decedent’s book keeper and certain alleged conversations with him, on which they had relied as inducements in purchasing the claim. Held that this was not properly admissible as res gestee to show the good faith of the assignment, nor as bearing-on the merits.</p> <p>Assignees of a contract can take such rights only as belonged to the assignor. In an action on the contract, therefore, the consideration for the assignment cannot concern the defense, and the introduction of testimony which would suggest superior equities in a bona fide purchaser of the claim, would mislead.</p> <p>A book-keeper’s admissions cannot bind his employer in an action against the latter upon a contract made with plaintiff’s assignor.</p> <p>Where the business books of a decedent are relied on to charge his estate, it seems to be erroneous to admit, apart from its context and as independent evidence for a particular purpose, a memorandum entry which could only be important when incorporated with the accounts of the decedent; and the false impression so produced cannot be supposed to be done away with by the subsequent reception of the books on the part of the defense, even though they show that the entiy had never entered into the accounts or been regarded in the balances.</p> <p>Where a written agreement, drawn to be executed by the party making it and signed by him only, is found among the papers of the other party after the latter’s death, it is presumed to have been delivered; and its retention raises a presumption of acceptance which must be overthrown by proof before it can be avoided.</p> <p>In an action involving a contract alleged to have been made with a deceased person, facts relating to its delivery to a third person before decedent received it, may be shown by tbe testimony of tbe other party, if decedent bad not known them.</p> <p>Where a trial judge, in excluding objectionable testimony, declines to exclude what relates to a certain matter that is involved with the rest, its effect cannot be supposed to have been fully destroyed.</p> <p>It is erroneous to direct the attention of the jury to undisputed facts as if they were doubtful.</p>

<p> Public right of whwfage where streets abut on sPi'ea/ins. </p> <p>A city lias a right to build a wharf for public purposes where any street, which has been duly dedicated to the public abuts upon a navigable stream.</p> <p>It is unimportant to this right whether the law of the State does or does not recognize in the bank owner a title to the land under the water to the middle of the stream.</p>

Assumpsit for the value of medical services rendered by plaintiff to defendant’s grandchild. The case was heard by a referee who found that the plaintiff, who was a physician, had found upon his office slate an unsigned request to call -at a certain house and that, on doing so, he learned that a ■young, son of defendant’s daughter was sick there and needed his professional services.

<p>Variance — Estoppel by res judicata.</p> <p>Where a declaration counts upon a single contract, and the evidence shows that there were two and there is nothing to show that one superseded the other or that they were merged in one, there is a substantial variance, especially if they differed in their terms.</p> <p>Where one party to a contract claims that it has been rescinded and judgment given against the other party upon the quantum meruit, he is estopped, in a later litigation with the same party, from claiming the right to carry out the contract; and the record in the former action is admissible to establish the estoppel.</p>

<p>Ejectment — Plaintiff’s interest as heir — Claim of joint title — Coverture— Statute of limitations — Estoppel.</p> <p>Recovery in ejectment is limited to the interest claimed in the declaration, and cannot cover any interest acquired by plaintiff after the dates set forth therein as those on which he had possession and defendant entered.</p> <p>Where several plaintiffs in ejectment aver a joint title, proof of title in a smaller number is inadmissible. And if one of the plaintiffs has died since beginning suit, and his successors in title or representatives have not been brought in, proof of the joint interest alleged is inadmissible, and there can be no recovery on it.</p> <p>Where plaintiffs in ejectment claim as heirs, they must show that’ their ancestor died seized of the premises.</p> <p>Where a case rests upon several grounds some of which are negatived by the charge or by waiver, and the party presenting them nevertheless recovers, it is unnecessary to consider them in reviewing the-case at the instance of the other party.</p> <p>Plaintiffs in ejectment, claiming as heirs, cannot defeat the plea of adverse possession for the period of the statute of limitations by relying upon a disability which arose before the transmission of the estate from their ancestor and after the statute of limitations began to run.</p> <p>The statute of limitations in ejectment is not arrested by the devolution of the estate.</p> <p>An equitable estoppel can only arise in support of right and justice; and it cannot be sustained if it does not appear that the adverse party was prejudiced by the course relied on to establish it.</p> <p>An estoppel in pais resting upon verbal admissions cannot operate to transfer an interest in land.</p> <p>'The verdict of a jury cannot be revised in a higher court if there is evidence to sustain it.</p> <p>Where ejectment is brought for several parcels of land an instruction to the jury that if they should find that plaintiff’s ancestor had deeded to defendant’s grantor, it would ‘ ‘ end the case, ” is erroneous if they find for defendant upon evidence which does not tend to show that the deed covered all parcels.</p>

<p>Ejectment by heirs of a homestead — Burden of proving title — Tenant-at-will can defend possession against -intruders.</p> <p>Ejectment in Michigan, is a possessory action 'and does not necessarily involve title; the party having the right to present possession is always entitled to recover.</p> <p>A plaintiff in ejectment who shows that he has been in possession claiming title, makes a prima facie case on which he is entitled to judgment unless defendant shows a present right in himself or an outstanding title in some third party on which he is at liberty to rely. But a mere intruder cannot protect his intrusion under an outstanding title in a stranger.</p> <p>The heirs of a man who died in possession of land which he occupied as a homestead can maintain ejectment or trespass against intruders; and the latter cannot impose on them the burden of proving that their ancestor’s title was perfect.</p> <p>An imperfect title, especially if obtained by descent, can be disputed by those, only, who have a better one.</p> <p>A tenant at will can defend his possession against mere intruders; so held of a widow who without objection from the heir at law, continued in possession of land which her husband had occupied as a homestead, and did so after the expiration of the year during which she was entitled to occupy the dwelling-house thereon.</p>

<p>Error to Ingham.</p> <p>Case. Defendant Dayton brings error.</p>

<p>Pine land contract — Assignment as security — Forfeitures—Laches.</p> <p><3. made a contract with H. for two parcels of pine lands and at the same time contracted with F. & A. to sell them lumber from one of the parcels if they would advance him money to make payment. The first contract was not to be assigned without H.’s consent, on pain of forfeiture, but with such consent it was assigned to E. & A., as security, so far as related to the parcel from which their lumber was to be taken. The lumber contract was extended and Gr. sought to sell the lumber from the other parcel, first to E. & A., and after-wards to T & Z.; but an arrangement with T. & Z. was prevented by E. & A., who claimed that their assignment covered both parcels. Shortly afterwards H.’s agent notified G. that the land contract was forfeited, and having done so conveyed one parcel to E. and contracted to sell him the other, for the amount remaining unpaid on E.’s contract. G then filed a bill for specific performance, impleading F. & A. with H., and obtained a decree from which only E. & A. appealed. Held that the rights of F. & A. were confined to the first parcel; that as the forfeiture was evidently declared for the purpose of enabling E. to get the land, and as E. & A. were bound to use their security for G.’s benefit, subject only to their own claim against him, and could not obtain a complete title without leaving him a right of redemption, the decree would not be disturbed.</p> <p>Laches cannot be imputed to one who begins proceedings as soon as he is in legal condition to do so, as where one awaits a discharge in bankruptcy.</p>

<p>Exceptions — Forfeiture of franchises — Railroad companies.</p> <p>An appellant cannot "be deprived oí the benefit of bis exceptions on the-ground that he was not injured by the rulings if it does not clearly appear that he could not have prevailed in any view of his case.</p> <p>The Supreme Court will not usually consider exceptions taken by the-prevailing party.</p> <p>A statute which imposes a forfeiture of franchises for failure to perform-should explicitly fix the time at which the forfeiture may be-enforced.</p> <p>A claim of the forfeiture of a franchise cannot be raised collaterally, but only in a direct proceeding instituted for the purpose.</p> <p>Whether a railroad corporation has finished its road and put it into full operation is a question for the jury.</p>

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

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

<p>Appeal from "Wayne.</p> <p>Bilí, for recovery of costs. Complainant appeals.</p>

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

<p>Homestead exemptions — Partition of homestead by heirs — Trespass.</p> <p>The constitutional provisions which protect homestead rights in Michigan are strictly exemption provisions and give the right only as-against the creditors, and the statutes have not enlarged it.</p> <p>Heirs at law may claim partition of the homestead, but adult heirs-residing away from the homestead cannot disturb an existing possession in the widow while the estate is in process of settlement. If the settlement is unreasonably delayed they may take proceedings-to expedite it; but they can obtain no right to possession of any distinct part until partition is actually made, unless by the occupant’s consent.</p> <p>A widow sued an adult heir at law of her husband for trespass incoming upon the homestead, of which she claimed to be in actual possession, and in harvesting crops. He defended on the ground that she had agreed to a division of the homestead for purposes of cultivation, but she denied having done so. Held that the burden of proof was with defendant and that the case was for the jury on the-point of actual possession.</p>

<p>.Statute of frauds— Verbal agreement to sell lands — Payment, possession and acts of ownership — Pari performance — Specifie performance — F'aud.</p> <p>A verbal agreement to convey land, being void under the statute of frauds, a Bill against a wife to compel a conveyance, even though her husband made the agreement and received the consideration with her full knowledge and consent, cannot be maintained where there is no such part performance as will take the case out of the statute.</p> <p>Payment of consideration for land sold under a verbal agreement will not always take the case out of the statute of frauds ; nor will possession, where the purchaser, as a tenant in common, merely remains in possession. Acts done as an owner and in reliance upon ownership and for which damages will not be adequate compensation are also necessary to entitle a party to the enforcement of. such an agreement.</p> <p>A bill to compel a conveyance under a contract must set up the facts relied upon.to show such part performance as will take the case out of the statute of frauds.</p> <p>Where specific performance cannot be enforced against a person who has verbally agreed to convey lands, the case will not be aided by showing that the land has been fraudulently granted to a third person.</p>

<p>Appeal from Grenessee.</p> <p>Bill to obtain construction of will. Tlie executor appeals.</p>

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

<p>Appeal from Jackson.</p> <p>Bill to set aside deed. Defandants appeal.</p>

<p>Justice’s return to certiora/ñ — Surplusage in verdict</p> <p>A justice’s return that “ the foregoing contains about all the testimony ” will not justify a review oE the evidence by the Supreme Court to see whether it sustained the judgment.</p> <p>A justice’s return to a writ of ceriiora/ri must be taken as conclusive in matters of evidence even as against the affidavit for the writ.</p> <p>Where a purchaser of goods has left them with the vendor and the latter recovers judgment for their value, the force of the verdict is not destroyed by the additional direction that plaintiff deliver them to defendant. This merely states the legal consequence of the judgment and may be rejected as surplusage.</p>

<p>Railway injury to hralceman — Negligence of fellow sei'mnts.</p> <p>A boy about 17 years old was employed as brakeman by the engineer of an ore train. The engineer had power to employ and discharge brakemen and the boy was capable and experienced in the business. The engineer directed the fireman to back the locomotive upon a side track to the train, and told the brakeman to attend a switch. He himself went to attend another switch farther on. While this was being done the bell and whistle of a train on the main track near by were both sounding. The first switch was passed and the engineer was about throwing the second when he .heard an outcry and saw the brakeman under the locomotive. The brakeman died in a few minutes from his injuries, and his administrator sued the railroad company for the injury. It was proved that the brakeman knew the train was about moving back, and that there was room enough for him to perform his duties. Reid that .he needed no farther warning of his danger, and that the accident was due to his own negligence; also, that if the failure to sound the bell and whistle of the locomotive was negligence, it was the fault ■of the fireman, who was a fellow-servant of the brakeman, and for whose negligence towards a fellow-servant the company would not be liable.</p>

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

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

<p>Appeal from St. Clair.</p> <p>Creditor’s bill. Complainant appeals.</p>

<p>Appeal from Kent.</p> <p>Administrator’s bill to compel payment of full value of land fraudulently conveyed by decedent. Complainant appeals.</p>

<p>Error to Ingham.</p> <p>Assumpsit. ' Defendants bring error.</p>

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

<p>Division of townships — Contribution—Railroad aid bonds — Rstoppel by judgment</p> <p>One township is not authorized to bind another which has been set off’ from it in any proceeding upon a cause of action which arose before-the division; and the latter township is not bound if it is not a party to the judgment.</p> <p>A party to a judgment is precluded by it from going behind it to dispute-the grounds on which it was rendered.</p> <p>In any proceeding for contribution between townships, one of which has been set oil from another, the inquiry must always involve the actual existence and binding character of the obligation as existing at the-time of the division.</p> <p>Where railroad aid bonds were voted by a township with a condition; precedent to their delivery that the road should not only be in running order but an equivalent amount of the company’s stock should. be delivered to the township treasurer, and before this was done a new township was set off from the one which voted the bonds, it was held that until this exchange there was no contract relation, with the company, and that even if the bonds had been valid a judgment against the old township for the amount could not bind the-new township.</p>

<p>Certiorari— Voluntary payment of fine — Imprisonment of a woman for violating an o^'dinanee.</p> <p>Certiorari does not lie to set aside tire judgment where a fine imposed has been voluntarily paid by a third person, and the respondent released before the writ was taken out.</p> <p>Where a municipal charter gives a person convicted under an ordinance a remedy by certiorari from the circuit court, or by appeal thereto, the Supreme Court cannot be called upon to review the proceedings by certiorari.</p> <p>Certiorari does not issue from the Supreme Court where any other remedy is adequate. But it may be allowed in cases of want of jurisdiction or of actual imprisonment.</p> <p>It seems that a woman cannot be imprisoned for a mere violation of a municipal ordinance where the offence was not of a criminal nature.</p>

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

<p> Replevin for property talcen on tax levy. </p> <p>The statutory prohibition against bringing replevin for property taken in satisfaction of a tax levy (Comp. L. § 6729) while it does not cover cases in which the tax is manifestly unlawful on its face, or is levied against a stranger to it, cannot be defeated by a mere claim that the tax is invalid, if it is apparently regular.</p> <p>Replevin was brought contrary to the statute (Comp. L. § 6729) for property taken under a tax levy. Held proper, on quashing the writj to give judgment for defendant for the amount of the tax lien.</p> <p>The Supreme Court need not consider the correctness of the reasons where the conclusion below is correct.</p> <p>Where a tax levy inflicts an injury cognizable by law, the injured party must seek redress otherwise than by an action of replevin for. the property taken.</p>

<p>Evidence— Unofficial entries in land-books — Or edibility — Emprise—Ejectment.</p> <p>An unofficial book of entries kept in tbe office of a register of deeds and purporting to give descriptions of property, with the names of purchasers, date of sales and manner of payment, is not, of itself, or under any statute, evidence of land title from the United States government.</p> <p>Plaintiff in ejectment stated that he should show title from the government and that his proofs would be mostly documentary. He introduced a record which was not proper evidence, and was received against objection, and on closing sought to show by the admissions of defendant that the latter claimed under a certain person who had been shown at the outset to be the grantee of the purchaser named in the record, and the grantor of the person under whom plaintiff claimed. The court directed a verdict for the plaintiff. Held that the credibility of the evidence of admissions was for the jury, and that the error in admitting the record therefore became material.</p> <p>The practice of introducing evidence of one kind after stating that the party will rely upon a different class of evidence, is condemned as taking the opposite party by surprise.</p> <p>Under Oomp. L. § 6310, plaintiff in ejectment must aver possession as of a date later than that on which his title accrued. Held that there could be no recovery under a declaration averring possession September 11th, where the evidence showed that plaintiff’s deed was dated the 13th. But such a defect can be amended by leave of the court.</p>

<p>Habeas corpus.</p>

<p>Municipal officer — Hebra services — Compensation.</p> <p>A city officer rendered certain services to tlie city which, were not within the scope of his duties. Held that they could not be shown to be gratuitous by evidence that he made no claim for compensation in conversation with third persons who would have no authority to make compensation or fix the amount of it. But his statements to such third persons that he made no claim or that he did not expect or desire pay would have been competent.</p>

<p>Divorce — Wife’s claim for pi'ope/t'iy.</p> <p>A wife appealed from a decree which granted her a divorce but denied her claim for property. It appeared that she had put into-her husband’s business money which she had acquired since their marriage, hut that he had conveyed land to her which was a full-equivalent therefor and of her full share of the property. EM that the decree would not be disturbed.</p>

<p>Appeal from Washtenaw.</p> <p>Bill to remove cloud from title. Complainants appeal.</p>

<p>County tireawi'ar — Collector of liquor tax.</p> <p>A county does not guarantee the integrity of its officers and is not legally hound to answer for their misconduct; as where the county treasurer embezzles or loses funds which, as an agent of the townships and cities of the county, he is required to place to their credit.</p> <p>The Liquor Tax Law (Act 228 of 1875, § 13) requires the county treasurer to place the money collected thereunder to the credit of the contingent fund of the township, village or city from which it was collected. Held that in collecting and accounting for the tax the treasurer is the agent of the municipalities and not of the county; and that his failure to account for it does not warrant a municipality in withholding an equivalent amount from the county taxes.</p> <p>The county, as such, has no right to the liquor tax collected by the county treasurer under Act 228 o£ 1875 ; it belonged to the township, city or village from which it was collected.</p>

<p> Damage ly sparJcsfrom beomotim. </p> <p>Persons who have authorized the use of a locomotive ontheir premises, and have known of its use and acquiesced in it, have no right of action for damage done to their property by fire set by sparks from such locomotive.</p>

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

<p>Municipal corporation — Public markets — Obstruction of streets and sidewalks — Damnum, absque w/jwria — Ma/rkeifees.</p> <p>A city has a right to establish and maintain a public market on premises duly condemned for that purpose, even though it be an incidental consequence that market wagons from which sales are made collect in the neighborhood and to some extent cause the obstruction of the streets. And no private right of action arises against the city for such obstruction especially where it is under police regulation ; and it is proper, for paying the expense of such regulation, to collect fees from those who sell goods from such wagons.</p> <p>No private right of action can arise from an act of legislation or from a failure in duties of a political nature, such as the enforcement of police regulations. Nor can municipal discretion be reviewed by the courts when the right to exercise it is conferred by valid legislation.</p> <p>Where property is condemned for public purposes it will be presumed, in collateral proceedings, that persons affected thereby have been properly compensated in damages, if found entitled thereto. ■</p> <p>City streets are not exclusively for the passage of persons and vehicles, but for all the other purposes to which it is customary to devote them.</p> <p>Every one in locating his business or his residence is presumed to do so* in view of the probability that his interests may be affected by the results which are incidental to the gathering of people in the same-locality for residence and traffic.</p>

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

<p>Pmctice^-Pcview of case tried without jury — Findings of fact — .Mistrial.</p> <p>In a case tried without a jury questions of fact were submitted to the judge and answered by him, and he made findings on some questions of law and exceptions were taken to finding of both classes. But no finding of facts was asked or made under Circuit Court Rule 87. Held that the Supreme Court could not review the case, even upon a record containing the whole testimony, and that as both parties acquiesced in the irregular practice the case would be treated as a mistrial.</p>

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

<p>Townships — Appm'tionment of indebtedness on bonds — Bona fide purchasers.</p> <p>A township issued plahk-road bonds which were invalid. The bonds were negotiated and the township was afterwards divided. Held that the judgment in a subsequent action on the bonds to which the new township was not a party, was not binding on it; and mandamus will not lie to compel the township board of the new township to meet with the township board of the old one, to apportion the indebtedness arising on the bonds. .</p> <p>Purchasers of bonds cannot be considered 5ona fide holders if after their purchase an action is brought upon the bonds and judgment recovered by the payees named in the coupons.</p>

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

<p>Practice — Service on joint defendants — Pule to plead! — Affidavit to sustain motion to StriJce plea from files — Seizure on execution.</p> <p>Declaration in an action on a judgment was served on one of two joint defendants and lie appeared and pleaded. The other was not served, but at the term when the case was to be tried, and before trial, though after some depositions had been taken, he appeared and pleaded also. On plaintiff’s motion, his plea was stricken from the flies. Held error.</p> <p>Any defendant against whom process has issued at common law or in equity has the right to appear without service, and defendants, whether joint or not, may always protect their rights by doing so seasonably.</p> <p>In Michigan the plaintiff in an action against joint defendants is allowed to proceed on service against only one defendant. But process must issue against all, and the intentional omission to serve . either defendant, if seasonably found within the jurisdiction, would be an abuse of the writ. And the judgment, though joint in form, preserves all rights which defendants would have at common law.</p> <p>In suits by declaration against joint defendants the rule to plead must be entered against all; and the filing of declaration, entry of rule to plead and service on any defendant puts the case on the footing of an issue of any other joint process served on a defendant.</p> <p>An affidavit that joint defendants have no joint property within the State is insufficient to sustain a motion to strike from the files a plea entered by one of them who has not been served with the declaration, as it does not negative the possibility that they may have such property when judgment is rendered.</p> <p>The right of seizure on execution is not confined to property within the State at the time of suit or of judgment.</p>

<p>Contract — Novation—Mitigation of damages for breach.</p> <p>A brewer contracted with an ice company for ice at not over two dollars a ton during the season. In May the company refused to furnish ice at that rate any longer, and the brewer arranged with them for a supply at four dollars a ton, but sued them for the breach of the first contract. Meld, that it was for the jury to decide whether the later arrangement was merely a modification of the first contract, as claimed by defendant, or whether plaintiff made it, as he claimed, in pursuance of his duty to use reasonable efforts to mitigate the damages.</p>

Assumpstt on the common counts. The defendant, Mrs. O’Neil, is widow of Oapt. P. H. O’Neil who at the time of his death was indebted to the plaintiff, Mrs. Byan, in the sum of about $900. Before his illness, which lasted for several months, he handed his wife $400 telling her to put it into the bank and saying that Mrs. Byan was coming for a settlement and that it would go towards paying her.

<p> Leoy upon, goods not paid, for by the debtor. </p> <p>Machinery was transferred with a written stipulation that title should not pass until it was paid for and that when all the terms and conditions were fulfilled the vendor would give a hill of sale; that the vendor might resume possession at any time for breach of contract, hut that the purchaser might remove the property, and should insure it and assign the insurance policy to the vendor to secure deferred payments. Held that such transaction was valid and that, until the property was paid for, creditors of the purchaser could not levy thereon.</p>

<p>Malicious prosecution — Probable emse.</p> <p>An action for malicious prosecution cannot be maintained against the complainant in a criminal proceeding for which there was probable cause, no matter how evil or malicious his motives may have been in making complaint. Nor can it be maintained if complainant, after fully and fairly disclosing to the prosecuting officer everything within his knowledge which would tend to cause or to exclude belief in plaintiff’s criminality, left him to determine on his sole responsibility whether the proceeding should be instituted, even though the case were not a proper one for prosecution.</p>

<p>Appeal from Jaclcson.</p> <p>Bill to set aside deed. Complainant .appeals.</p>

<p>Physicians— Value of services — Malpractice.</p> <p>There is no presumption of law as to the value of a surgeon’s services, nor that a jury can ascertain their value without testimony from persons knowing something about it. Nor has a jury a right to reduce the compensation claimed for such services where undisputed testimony shows it' to have been appropriate, and on their own unsupported notions that the treatment adopted should have been different.</p> <p>A jury has no right to ignore testimony that has not been discredited, and form independent conclusions, without testimony, on matters that require proof beyond their conjectures or opinions.</p> <p>The fact that a surgeon changes a course of treatment adopted by another does not in itself show that the former course of treatment was not proper at the time ; nor is the patient’s failure to recover perfect soundness of limb in itself evidence of malpractice, nor is the fact that he survived, although he refused to allow a particular course of treatment, evidence that such course might not have been proper under the circumstances.</p> <p>The jury in an action for the value of surgical services ,has no right to find malpractice without testimony from persons who are qualified to give opinions on the methods of treatment.</p>

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

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

<p>Proceedings to lay out a ditch — Venire to jury — •Oath—Accuracy of descrip tion %n condemnation proceedings.</p> <p>Proceedings to lay out a public ditch are void if the venire for the jury summoned to pass upon its necessity does not give its dimensions or identify its course with some precision.</p> <p>Where the oath administered to the jury in proceedings to lay out a ditch, does not specify the line of the ditch or its dimensions, but refers to it merely as- “Pine Creek Ditch No. 2,” it is insufficient, as it does not apply to a ditch of any specific character and predeter mined location.</p>

<p>Appeal from Lapeer.</p> <p>Bill to clear title. Defendants appeal.</p>

<p>Chattel mortgage — Affidavit of renewal — Computation of time.</p> <p>Where an affidavit for the renewal of a chattel mortgage described the mortgage as filed “with the clerk of the township of Bridgeport in Saginaw county, Michigan,” and the attestation clause was, “Subscribed and sworn to before me this 20th day of August, 1879, at Bridgeport,” it was held, that the venue was sufficiently given.</p> <p>The general rule for computing time, in Michigan, is to treat a day as an entirety, and not regard fractions of a day.</p> <p>The Michigan statute providing that a chattel mortgage shall cease to be valid after the expiration of one year unless, within thirty days next preceding, an affidavit of renewal shall be filed (Comp. L. § 4709;, does not require the hour of filing to be noted, but merely provides that the clerk “shall indorse the time when the same was filed.” Held, that a renewal purporting to have been made on the anniversary of the filing of the mortgage is therefore sufficient.</p>

Bill to foreclose a mortgage given by Harmon Shear to lewis Cass, and assigned by him to Mary C. Canfield. • The other defendants are brought in as subsequent purchasers, and an amended bill was filed charging defendant Alexander T. Campau as personally liable for the amount due on the mortgage, on the ground that he had purchased from Shear subject thereto. The decree held him to be liable, and he appeals.

<p>Tea-sale based on mid tax — Damnum absque injwria.</p> <p>A tax sale based upon a void tax does no sucb injury to a mortgagee of land as will sustain an action for damages against the tax collector 'as for making a false return of unpaid taxes ; and in such suit the collector is not estopped by his return from showing that the tax was void.</p>

Proceedings before a circuit court commissioner under the Forcible Entry and Detainer act, to recover possession of lands held by defendants as complainant’s tenants. The notice to quit, given by complainant’s agent, stated that the lease would expire on the first of May. The commissioner gave judgment of restitution, which was reversed on appeal to the circuit court. Complainant brings error.

<p>Assumpsit and covenant — Statute of limitations.</p> <p>Comp. L. § 6194, permits assumpsit to be brought where covenant might be maintained, but § 7148 bars any action in assumpsit after six years. Held that it is the form and not the cause of action which fixes the bar, and the remedy elected is governed by the limitation appropriate to itself.</p> <p>A declaration in assumpsit upon the covenants of a deed cannot be treated as a declaration in covenant.</p>

<p>Supervisors — Certificate of election — Contested office.</p> <p>The board of supervisors cannot go behind the statutory certificate of the election of a specified person as supervisor: and mandumus will lie to compel them to admit the person so declared elected.</p> <p>A board of supervisors has no authority to determine -the right to a seat in the hoard where an election thereto is contested; the question is one for judicial cognizance.</p>

Mandamus to compel respondent to pay to relator the sum of $27.50 alleged to be due and unpaid as part' of his salary as health officer of Cadillac.

Mandamus to require the respondent to entertain relator’s petition for the allowance of the will of Gottlieb Grabo under which relator had interests. Grabo had died in Prussia and the will had already been allowed by the king’s court at Wittenberg. Petitioner asked that an authenticated copy be allowed by respondent under Comp. L. §§ 4342-3, and that notice of the hearing thereof should be given.

, Information for murder. Respondent brings error. Reversed.

<p>Exceptions from Mecosta.</p> <p>Information for assault with intent to kill. Respondent was convicted below. Conviction set aside.</p>

Exceptions before judgment from Berrien. Information under Act 259 of 1881 for selling liquor to drunken persons. Kespondent was convicted below. Conviction set aside.

<p>Stenographer’s notes in evidence — Contents of letters.</p> <p>Where it is sought, for purposes of impeachment, to introduce a long transcript of the stenographer’s notes of testimony given in another court, and it appears that they were taken by different reporters and that one has transcribed the other’s work, but that the transcript has not been compared with the original, there is no error in excluding the transcript from evidence even though the reporter testifies that his own notes are literally correct, and that he knows that his transcript of the other’s is an absolutely correct copy.</p> <p>A witness who testifies that he has made copies of certain letters but has lost or destroyed the copies and that he cannot remember their whole substance but does remember a part, may be permitted to give their contents as far as he can do so. But his inability to remember the whole is a proper subject on which to comment to the jury.</p> <p>The taking of testimony by stenography without afterwards reading it over to the witness, is criticised as an imperfect method.</p>

<p>Closing saloons on Sunday — Intent of dealer.</p> <p>Act 259 of 1881 requiring saloons to be kept closed on Sunday is violated if a saloon is allowed to be open whether for the sale of ’ liquor, for cleaning up, or for any other business purpose; and the question of the proprietor’s intent is immaterial.</p> <p>The jury must accept the law from the court and be governed thereby.</p>

<p>Error to Osceola.</p> <p>Information for adultery. Kespondent was convicted»</p>

<p> Confessions. </p> <p>In a prosecution for an attempt to murder, the respondent’s unsupported confession is not sufficient evidence of the corpas delicti.</p>

<p>Administration — Disclosure of partnership assets by executor — Inspection of business books — Administi'atvr's executor not ex officio vested with administration.</p> <p>Comp. L. § 4408, in providing that any person interested in a decedent’s estate may bring before the judge of probate for examination any one whom he suspects of possessing writings which tend to disclose the interest of the deceased in any property, entitles an administrator de bonis non to cite the executor of a previous administrator, to produce the books of a partnership composed of the deceased and the previous administrator. And the proceeding is not barred by the pendency of a suit in equity for final relief.</p> <p>A probate order under Comp. L. § 4408, requiring the respondent to furnish such information as will enable an administrator to know the condition and resources of his decedent’s estate is merely ancillary to such action as may be had in any court where such information is needed; it is not a proceeding in a final accounting, and maybe issued against strangers to the record.</p> <p>The representative of a deceased executor can be compelled by the probate court to give information to parties in interest, but such inquiries should be so carried on as not to interfere needlessly with the place of custody of business books in daily use, and the right of access to them.</p> <p>The executor of an administrator is not entitled ex officio to succeed his intestate in his trust as administrator, but the trust is committed to an administrator de bonis non. Comp. L. § 4375.</p>

<p>Partnership — Suit for winding up 'business 'not barred by proceedings for discovery.</p> <p>Probate proceedings for discovery do not bar an otherwise proper suit in equity for winding up the concerns of a partnership ; delays caused by them can be allowed for in the progress of the chancery suit.</p>

<p>Error to the Superior Court of Detroit.</p> <p>Case for false imprisonment. Defendants bring error.</p>

<p>Newspaper libel — Privilege—Oppressive acts of judicial funciionmies.</p> <p>In an action for newspaper libel the judge instructed the jury that a. portion of the article complained of was privileged, but permitted them to consider it with the rest in deciding from the general spirit of the article whether that part which was left to their consideration, was malicious. Held error.</p> <p>It is matter of privilege to call public attention to the act of a judicial officer in ordering a person into confinement without a charge against him, or in requiring bail in an amount which, eonsideringthe prisoner’s probable means and position in life, he is unable to. pay; these are violations of the most important guaranties of cinstitutional freedom, and are matters of public concern.</p>

<p>Contract of Service — Eesermtion of right to pay a debtor’s laborers— Substituted liability.</p> <p>Tlie owner of a saw-mill sold it and took the purchaser’s notes. He also agreed with the purchaser to furnish him logs for sawing for which he was to pay a certain sum per thousand which was to be applied on the notes and for mill expenses. The owner had employed a laborer with whom he kept a running account at his store and who went on working for the purchaser on the same terms as before. Held that the agreement for sawing did not make the owner liable to the laborer for his services to the purchaser.</p> <p>A contract for services wherein one party reserves the right to pay the other’s laborers in order to secure himself against the risk of nonperformance does not make the party reserving such a right the employer of the laborers or exonerate the other party from paying them himself. The payments are made by virtue of an agency, and on the employer’s account.</p> <p>A third person can be made liable to a laborer employed by another only by some written agreement making him collaterally responsible, or by some complete and lawful obligation by which for a valuable consideration it was agreed between all parties that his liability should be substituted.</p>

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

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

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

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

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

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

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

Trespass for cutting, carrying away, converting and disposing of certain trees to plaintiff’s damage $250.

<p>Case made from Cass.</p> <p>Assumpsit. Defendant brings error.</p>

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

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

<p>Good faith — Hearsay evidence as to advice of counsel — Yakte not fixed hy settlements with trespassers.</p> <p>In an action for the value of timber taken from land by one who has purchased from the holder of a void tax title, the good faith of the purchaser could not be shown by merely hearsay evidence that before bis purchase the title was investigated by counsel and pronounced good.</p> <p>A person who was sued for the value of timber which he had taken, without right from the lands of the owner could not be allowed to show, as bearing on the value, that the plaintiff had settled with another trespasser for a relatively less sum than he now claims as damages.</p> <p>Where a plaintiff claiming damages for the wrongful removal of timber from land as to a portion of which his ownership was disputed, remitted a portion of the damages claimed, corresponding to the amount taken from the disputed tract, errors committed by the trial court in rulings relating to the true boundary became immaterial.</p>

<p>Railway injury to person on the track — Negligence.</p> <p>A laborer employed by a contractor who had been engaged by a railroad company to lay water-pipes along its right of way, in going home, after his day’s work was done, made his way along the tracks to a point where trains were constantly passing in both directions, and although there was enough room between the tracks, he was run over by one train while apparently trying to avoid another. He was not employed upon the road and might have gone home without going along the track, but his employment enabled him to know the locality, the risk and the need of watchfulness to avoid injury. Held that no action would lie for his death.</p>

<p> Mandamus to provide for payment of ditch orders. </p> <p>A person wlro claimed to be the holder and owner of certain ditch orders asked for a writ of mandamus to compel the board of supervisors to provide for their payment. The board answered that they had no knowledge as to whether the relator was holder and owner of the orders as claimed. Meld that the answer was proper; aud that relator would not be entitled to the writ unless her right to the orders was admitted or proved.</p> <p>Mandamus proceeding's to compel the payment of ditch orders, if begun by a person not entitled thereto, would not bar a subsequent action by the rightful owner, and the title of the relator must therefore be-admitted or proved for respondent’s protection.</p> <p>The county drain law allows the re-assessment of ditch taxes where-they have been set aside. Meld that a purchaser of State lands, who-had had the ditch taxes thereon vacated, would not be granted the-discretionary writ of mandamus to compel the board of supervisors-to provide for the payment of ditch orders in his possession, nor would such writ be granted to a person holding such orders under-him.</p> <p>WTiether the purchasers of State lands on which ditch taxes have been assessed can have such taxes set aside — Q.</p>

<p>Motion for alimony pendente Ute. Submitted and denied June 13.</p> <p>Appeal from the Superior Court of Detroit.</p> <p>Bill for divorce. Defendant appeals.</p>

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

<p>Error to Ottawa,</p> <p>Case. Defendants bring error.</p>

<p>Error to St. Joseph.</p> <p>'Trover. Defendant brings error.</p>

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

<p>Condemnation of sehool-Jiouse site — Mandamus.</p> <p>Mandamus will not lie to compel a circuit, judge to overrule liis finding that the proceedings taken for the condemnation of a site for a school-house were irregular, and to compel him to enter judgment for the amount found due.</p>

Trover. The case was tried by a justice of the peace’ without a jury and in the absence of any showing by defendants was decided in plaintiff’s favor.

<p>Error to Kalamazoo.</p> <p>Appeal from allowance of the account of the executrix. Contestant brings error.</p>

<p>River improvement companies — Tolls.</p> <p>"The statutory authority conferred by Comp. L..ch. 85 upon the Board of Control of St. Mary’s Falls Ship Canal to fix the rates of toll to be charged by river improvement companies is not open to review except by the action of the Board itself.</p> <p>The rates of toll as fixed by the Board of Control for River Improvement Companies cannot be reviewed by the courts in an actiorPto recover the amount of the toll in a particular case; and such an action cannot therefore be resisted on the ground that the tolls are excessive or that the Board was imposed upon in fixing them.</p>

<p> Equitable estoppels. </p> <p>Estoppels in pais are called equitable because they arise on facts that make their application just, and not because they are in any way limited to cases in equity; they are just as applicable in courts of common law.</p> <p>A bill in equity will not lie to enjoin actions at law on the ground merely that the defence relied on is an equitable estoppel; tha defense will be as perfect at law.</p>

<p>Error to Wayue.</p> <p>Garnishment. Plaintiffs bring error.</p>

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

Clair. Ejectment. Defendant brings error. The premises- were conveyed by defendant’s mother to plaintiff’s husband August 14, 1872, under the following description: “All that certain piece or parcel of land situate and being in the city of Port Huron, county of St. Clair, and State of Michigan, and more particularly known and described as follows, to wit: Commencing on the northerly bank of Indian Creek, so called, with its intersection with the easterly side of Water…

Clair. Bill for specific performance, and to vacate a deed executed by defendant Grummett and wife to defendant Noble, and require said Noble to quit-claim the premises to Grummett. Defendant Noble appeals.

<p>Mandamus — Answer to order to show cause — Accounts between county and, townships set off from it.</p> <p>A township which had been set oil from a county, and which had a balance to its credit on the books of the county treasurer, sought by mandamus to compel the county board of supervisors to provide for its payment. The board answered, admitting that the balance stood ■on the books, but denying liability on the grounds that neither the claim nor the books were correct; that the county had not received all the taxes returned from the township as delinquent; that a large ■amount of taxes had been charged back; and that a large amount was perpetually enjoined and never collected by a sale of the lands, ■and these had never been adjusted between the county and township. But the answer contained no statement of definite items reducing the balances, though the means of doing so, if they existed at all, were accessible to the board. Held that this answer showed no cause against the writ, and as the balance was admitted, the township might have taken the answer as a practical admission, because as against the county, the books were presumably correct and the board had the burden of showing that they were incorrect.</p> <p>‘Comp. L. ch. 226 provides that in mandamus proceedings there may be a trial of certain issues of fact in the county where the facts arose, in the same way as in an action on the case for false returns. Held that this relates to cases where a writ of mandamus has been first issued and a return made under which issues of fact or law are framed, — a practice which is not customary in the Supreme Court of Michigan.</p> <p>The prerogative writ of mandamus is meant to be a speedy and summary remedy whose chief value would be destroyed by the delays and complications of special pleadings, authorized under the practice of alternative or double writs.</p> <p>Mandamus proceedings in Michigan are begun by an order to show cause, and such issues of fact as are introduced by or under the return are disposed of specifically, not by sending down the entire case on the record but in the same way as are particular issues sent down in chancery cases to he passed on.</p> <p>Where the Auditor General, as such, pays money into the hands of a county treasurer as county money, the county must be regarded, as against all others than the treasurer, as having received it; and the treasurer is liable on his bond for his own defaults.</p> <p>df a county remains liable for a balance to a township that has been set off from it, its act in compromising with a defaulting treasurer cannot be treated as an act of agency on behalf of the township and will not relieve it of any share of its liability.</p>

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

<p>Equity — Matters previous to decree — Bate of foreclosure sale.</p> <p>Matters disposed of without objection before the decree in foreclosure cannot be litigated upon an appeal therefrom, or upon a motion to dismiss such appeal, if the defendants were properly brought in and answered. The proper remedy after decree is by bill of review.</p> <p>A foreclosure sale cannot be allowed to take place within less than a year from the time when all defendants have been properly brought in.</p>

<p>Drains — Description of land taken for drains.</p> <p>The description, of land to be taken for public purposes should be made as definite as would be necessary lor a deed, at every stage oí the proceeding at which it has to be set forth.</p> <p>{Proceedings to condemn land for a drain are void if the description in the preliminary application therefor gives only the line of the drain without stating its proposed width.</p>

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

<p>Trespass — Plea in abatement — Ya/ricmce.</p> <p>A plea in abatement to an action of trespass brought in the name of one-plaintiff is bad in merely stating that said plaintiff “ before and at the time of the commencement of the suit” was part owner of the premises with another person specified. It should show that some one besides plaintiff had an interest at the time of the trespass.</p> <p>Whether a plea in abatement to an action of trespass brought before a justice raises a question of title which cannot properly be entertained without the filing of the bond required by Comp. L. § 5827 is unimportant if the plea is bad in itself.</p> <p>If a plea in abatement was .bad defendant is not prejudiced by overruling the objection that it ought to have been disposed of before going into the merits.</p> <p>Under a declaration in trespass alleging that defendant, with cattle, to-wit: horses, hogs and 'oxen trod down, trampled upon and destroyed the grass, corn, etc., of plaintiff and other injuries to him then and there did to his damage, etc, it is not error to admit evidence that part of the damage was done by defendant’s cows, as the gist of the action is the forcible entry, and no precise certainty is requisite; nor • is it error to admit evidence, under the allegation of other injuries, that corn cut from the stalks and apples fallen to the ground were destroyed.</p> <p>In an action between adjacent owners for trespass by cattle the plaintiff cannot recover if the responsibility for the support of the line fence has been divided under Comp. L. § 769, and the cattle entered in consequence of his failure to keep up his share; but defendant has the burden of proving that such division was made.</p>

<p>Insurance — Promise to renew policy — Plea—Penial of execution.</p> <p>An insurance company that has ceased to do business is not liable on a policy which persons who have ceased to he its agents have promised to renew. But if the person to whom the promise is made did not know of the revocation of their authority, he may, perhaps, have a cause of action against them.</p> <p>“Where a declaration upon an insurance policy which plaintiff alleges has been renewed, does not purport to set up a written renewal, the plea of the general issue is sufficient</p> <p>Denial of the execution of an instrument cannot be required if the instrument is not set up in the declaration.</p>

<p>Appeal from the Superior Court of Detroit.</p> <p>Bill for divorce. Defendant appeals.</p>

<p>Townships — Brain taxes — Agency of officers.</p> <p>Townships are not accountable for the moneys levied for drain taxes. Act 140 of 1875.</p> <p>The laying out of drains is not a township matter, but is a neighborhood concern; the taxes levied for that purpose are local assessments; the township treasurer in collecting them, and the township hoard of drain commissioners, in drawing orders on the fund, are not acting as agents of the township, nor does the township board exercise an independent discretion in drawing the orders; it acts on the determination of the local drain commissioner and is not obliged to look beyond his report for its authority.</p> <p>A township is not responsible for the defaults and misconduct of its drain commissioner in the performance of his statutory duties.</p>

<p>Partner's right to accounting — When barrred.</p> <p>A. partner’s right to an accounting is not barred in six years where the-partnership articles are under seal and contain covenants. No claim, under such articles would be barred in that time unless raised in an. action of assumpsit.</p> <p>The statute of limitations, if it runs at all against a partner’s right to an' accounting, is barred by dealings in 0e shape of a showing of balances.</p> <p>Where partnership articles provided that the partnership should expire by limitation, but the business was allowed to run on until a later date when a new firm was formed, leaving out one of the original' partners, and bringing in another, it was held that the partner who. was dropped had a right to an accounting from the members of the: new firm.</p>

<p> Affidavit of non-execution. </p> <p>The execution of a partnership note must he proved where only one off the defendants appears, and after pleading and in the course of tha trial, files with plaintiff's consent and the court’s leave, a sufficient affidavit of its non-execution, so far as he is concerned. Circuit Court Rule 79.</p> <p>An affidavit of the non-execution of a partnership note is sufficient,' when filed by. one of the partners, if it shows that deponent did not sign, execute or deliver it, or expressly or impliedly authorize, direct, empower or consent to its execution, signature or delivery by any other person, and that if signed, executed or delivered by the firm, it was done by another co-partner without deponent’s authority, knowledge or consent, against the express agreement on which the partnership was created, for purposes outside of partnership matters, and without any authority in behalf of the partnership.</p>

<p>Seduction — Presumption as to chastity.</p> <p>■Where a prosecution for seduction is instituted after a long period during which acts of intercourse have taken place from time to time, the prosecution must show that immediately before the act complained of the complainant was chaste and virtuous; no legal presumption of her reformation can arise from the mere fact that several months have passed without intercourse, especially if there was ■no opportunity for it.</p> <p>The previous chastity of the prosecutrix in a seduction case is presumed if there is no evidence against it.</p>

<p>Certiorari to the Superior Court of Grand Rapids.</p> <p>Bastardy proceedings. Respondent was convicted.</p>

<p>Error to Kent.</p> <p>Debt. The People bring error.</p>

<p>Railway injuries io employees — Negligence of fellow servants — Ditching of train — Broken track.</p> <p>The fact that the plaintiff in an action for a railway injury was hu. without his own fault or negligence does not of itself entitle 'him to recover, as it must further appear that the defendant is legally chargeable with the injury.</p> <p>A railway company whose track is broken without any fault of its own, is under no obligation to its employees to repair it within any specified time, if it duly warns them so that they shall not be injured in consequence thereof.</p> <p>A railway company is not liable to an employee for an injury caused by ■ the negligence of a fellow-employee; as where the fireman on a freight train was hurt in consequence of the train being ditched through the engineer’s neglect to obey signals which he saw and was bound, by the company’s rules, to observe.</p> <p>A railway company owes a duty to the public to keep its track in safe and suitable condition and ran its trains with regularity and dispatch for the carriage and transportation of passengers and freight. But an employee cannot have a right of action against the company on this obligation.</p>

<p>Appeal from Berrien.</p> <p>Bell for accounting. Complainants appeal.</p>

<p>jDivorce for cruelty — Mwmny,</p> <p>Alimony was denied a wife upon affirming a decree of divorce obtained' by her for cruelty where circumstances appeared to lessen the degree-of Buffering which usually attends such injuries as she received and where it farther appeared that she had already received from her husband an amount'of property not very disproportionate to the amount of alimony which might otherwise have been allowed her.</p>

<p>Promissory note — Judge disqualified by interest as indorsee.</p> <p>Suit upon a promissory note cannot be brought before a justice of the peace to whom it has been indorsed for collection, as he thereby becomes the plaintiff’s agent therefor</p>

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

<p>Habeas corpus.</p>

Mandamus. This is a proceeding by some thirty members of the Old Fire Department to compel that organization to reinstate them to membership on payment of their dues. They claim that their names were dropped from the roll in pursuance of an •amendment to the constitution of the department, adopted May 13, 1863, and claimed by them to be illegal and invalid as having been adopted at a special meeting and without sufficient notice to members.

<p>Appeal from Wayne.</p> <p>Bill to establish trust in lands and compel their conveyance by the trustees. Defendant Twork appeals-</p>

<p>Negligence — Injury from machinery while being tested by the manufacturer.</p> <p>I</p> <p>A third person cannot sue for damages growing out of the mere breach of a contract between others : e. g. the failure to furnish machinery of the strength required by contract does not give the purchaser’s servant a right of action for an injury caused him by a break-down.</p> <p>A manufacturer who, for the purpose of testing machinery which he baa constructed to sell, is in possession of it, owes to every one who may meanwhile be in danger from his handling of it or from its construction, the common-law duty of proper care; the contract being important in this respect only as it evidences the degree of care which he is bound to observe.</p> <p>The manufacturer of an elevator which had been in use two or three days sent an employee, at the purchaser’s request, to see what was the matter with it. After taking the car to an upper floor the latter said to one of the purchasers '“Let us load it up,” and the purchaser accordingly directed a servant to assist in the loading. The elevator fell while being loaded, and the servant was hurt. Held that he had a right of action against the manufacturer, who was in possession by his employee.</p> <p>In an action against a manufacturer of an elevator for an injury received from it while still in his possession, it was objected that the declaration did not sufficiently show that it was in defendant’s possession. It did aver however that plain till went upon it “by command and at the request of said defendant” and the pleading was considered sufficient.</p>

<p>Administrator’s accounting — Partnership</p> <p>The administrator of a deceased partner is responsible for any money wrongly paid out of the funds which have actually been in his hand» officially, and for any allowance voluntarily and freely made by him against the estate without some legal or equitable warrant.</p> <p>A surviving partner cannot claim compensation from the estate of a deceased partner for his personal services in winding up the busines» after the partnership has been dissolved by the latter’s death, unlesa it has been agreed that he shall be compensated.</p> <p>The right and duly to wind up the business of a partnership after it has been dissolved by death is an incident of the partnership and rests with the survivor as a result of survivorship.</p> <p>An administrator cannot retain any profits made out of assets belonging to his decedent’s estate and sold by him, though he may have to account for more than he receives if he sells too low. He must at least account for actual proceeds.</p> <p>In a proceeding by an heir against his father’s administrator for an accounting, an inquiry into the widow’s pecuniary condition at the time of trial is irrelevant and improper, especially if it tends to injure the heir by raising the inference that he has been benefited out of property to which the widow was entitled.</p> <p>An administrator’s right to extra compensation for his services is a question which depends exclusively on the judge’s discretion and cannot be left to a jury.</p> <p>Proceedings to obtain and close an administrator’s account are for the purpose of placing on record an exact showing of the assets which he has had and of their disposal, and the resulting balance; and the charges against him must include such sums as the estate has lost through his misconduct or default.</p> <p>The administrator of a deceased partner in accounting for such assets as consist of the partnership interest, can be charged only with what he actually received or ought to have obtained from the survivor or from- other sources, unless losses occurred through his own fault or connivance. But ho should also be credited with any proper disposal of such assets by return or otherwise. • ,</p> <p>An administrator, in accounting, should give, as far as possible, all the separate items of his disbursements.</p> <p>The party contesting an administrator’s account in the probate court-may do so either by disputing items of disbursements, or by adding charges, or by showing larger assets. And when the case is closed it should show not only the result, but a detailed statement on both sides of the account as settled, and the controversy on appeal will then be confined to such parts as are disputed, with the right to either party to correct errors or omissions. The practice should conform as nearly as possible to the equity practice of pointing out the real issues.</p> <p>New issues framed in the circuit court upon an appeal on an administrator’s accounting, should be framed on the matters in controversy and be as specific as possible. If submitted to a jury a general verdict should not be taken. Findings upon separate questions of fact that are properly framed may be given such legal or equitable force as is proper. The circuit court, when the case is disposed of, must ' have the means of stating the account as it should be finally settled.</p>

<p>¡Enticing away another’s wife— Wife's letters as evidence of affection for her husband! — Criminal conversation — Evidence of man'riage.</p> <p>"One man sued another for enticing his wife away. He showed that he and his wife had been living close by defendant and on the latter’s land, and that he had left his wife there while he went West to seek a location; that he was gone about three months during which time he had letters from his wife, one of which indicated affection for him ; as a later one did not, he returned at once, and after living with his family about a week his wife left him and went home to her father with whom she stayed some time and then went to work at defendant’s ; that she afterwards refused to live with her husband and sued for a divorce. Held, that having shown all this, plaintiff was properly allowed to introduce the letter from his wife to show that at one time since he went away she was affectionately disposed.</p> <p>White v. Ross, 47 Mich. 172, distinguished.</p> <p>A wife’s incapacity at common law to testify in an action brought by her husband for enticing her away is modified by legislation so that where her husband consents to her testifying she may do so; if he does not consent, she cannot testify even in his behalf, though letters written by her may be admissible.</p> <p>In an action by a husband for simply enticing away his wife, plaintiff cannot show that defendant has had illicit intercourse with her.</p> <p>-In a case involving adultery or criminal conversation, the criminal intercourse must be substantially averred and there must be proof of actual marriage. But in an action by a husband for enticing away his wife, evidence of cohabitation and repute and of defendant’s admissions of the fact are enough to establish the marriage relation.</p> <p>'The defendant in an action for enticing away another man’s wife introduced evidence tending to show that she had left her husband of her own accord and because of his cruel treatment, and farther offered to prove expressions used by her to his own wife, while living in his house but in her husband’s absence, concerning the latter’s conduct towards her. Held that the offer was too indefinite and was properly overruled, as it fixed no time and did not show whether the expressions related to good or bad conduct or any^conduct material to the issue. But defendant could introduce as part of the res gestae a letter written by the wife to her parents before she left her husband, in which she represented that he was so unkind to her that she was ‘sick of her home.’</p>

<p>Plea in abatement — Liability for act cf partner or agent — Order of proof— Ratification — General agency.</p> <p>Where no plea in abatement for want of parties is filed to a declaration on the common counts for the price of merchandise sold to a third person, the defendant will be held liable if the purchaser is shown to be either his agent or his partner.</p> <p>fa an action for the price of merchandise sold to a third person it was MIA that the court was not clearly in error in allowing the plaintiff to show all the facts attending the sale, together with the purchaser’s representations as to his authority from defendant, before it was shown that he actually had such authority.</p> <p>Where ratification is relied on, proof of the dealings to be ratified must be given first.</p> <p>A continuing agency is not to be ’presumed from the fact that one has occasionally been temporarily employed for special purposes.</p> <p>Where the bill of particulars is an action for the price of merchandise relies on an actual sale for a specific sum and contains nothing which would justify recovery on a quantum valebai for its conversion, there is no ground of action against defendants for the unauthorized taking of goods belonging to plaintiff but taken away and shipped in defendant’s name and with his privity.</p> <p>Receipt of the proceeds of sales does not tend to show that the vendor is the receiver’s agent; it may be merely a re-pavment of advances, and in an action against the receiver or the vendor’s principal, the plaintiff has the burden of proving the agency.</p> <p>Suspicion will not justify a verdict in the absence of proof.</p>

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

<p>Seduction — Name of plaintiff — Sight of action.</p> <p>In a declaration on the case for damages for seduction there is no-duplicity in charging in. separate counts that defendant had debauched plaintiff and assaulted and .got her with child by force and arms, and that he had enticed her away to make her his mistress or concubine; the latter charge explains how plaintiff came within defendant’s power and does not allege a separate cause of' action but merely matter of aggravation.</p> <p>A girl who had been practically, though not formally, adopted into a family, in pursuance of an understanding that she should be in all things as a daughter, was held to have a right to use the name as-her own in bringing suit against the head of the family. Whether the question of her right to do so could be raised by demurrer — Q..</p> <p>An action for damages for seduction may be brought, in Michigan,, by the girl seduced.</p> <p>Comp. L. §§ 6195-7 permit an action for the seduction of a minor-female to be brought by her father, mother or guardian; if the woman seduced is of age she can authorize her father or any other relation to bring it, in which case the authority must be alleged and proven. In these cases the action is for her own use and benefit and there need be no proof of loss of service, nor of any suffering or injury except to the victim.</p> <p>Where the law empowers a person who has a claim or cause off action, to authorize another to begin and prosecute suit thereon, it, will be for the use and benefit of the person really entitled; the claim or cause of action is not assigned to the plaintiff.</p> <p>It is the policy of legislation in Michigan to permit the real party in> interest to sue in his own name and testify in his own behalf.</p> <p>Assignees in Michigan need not sue in the names of their assignors even in cases where the right of action for a tort is assignable. Nor is it necessary to bring an action in the name of one person for the use and benefit of another.</p>

Bill of foreclosure. Cross-bill to clear title. Complainant in the original bill and defendant in the cross-bill', appeals.

<p> Condemnation of sites for seliool-Tiouses. </p> <p>Proceedings to condemn land for a school-liouse site will be quashed if there is no lawful designation thereof shown by the records.'</p> <p>The School Law (Act 164 of 1881) permits land to be condemned for school purposes only when a site has been lawfully determined, and it confines the power of the township inspectors to determine the site to cases where the inhabitants themselves cannot do it. And it seems that more than one site cannot be designated except by the inhabitants.</p> <p>The justice to whom a petition for the condemnation of land for a school-house site is presented, is not empowered to hear evidence or pass on any of the merits.</p> <p>Where proceeding’s to condemn land for a school-house site are brought before a jury, proof of a legal selection of the site must be made to them, and without it they cannot find it to be necessary to condemn it.</p>

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

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

<p>Forcible entry and (Mainer — Bights of defendant.</p> <p>Summary proceedings to recover possession of land will not lie against the holder of a tax-title antedating the mortgage under which complainant claims as foreclosure purchaser; and there is no rule of law •to prevent the holder of the tax-title from fortifying it, if he can, by-purchasing other and earlier titles and incumbrances.</p>

<p>Appeal from the Superior Court of Grand Rapids.</p> <p>Bill for injunction. Complainant appeals.</p>

<p>Haikoay companies — Injury to bmlceman received outside of the line of his duty..</p> <p>In an action by a brakeman against tbe railway company for an injury received while doing dangerous work for which he had not been hired, he can show what he said on being ordered to perform it, and that he protested against the requirement.</p> <p>A party can always show by his own testimony that he did not enter into an agreement relied on against him, or voluntarily enter upon the performance of work which had been imposed upon him, but for which he had not been engaged; and he may show this by testimony of what he said at the time he was directed to do such work.</p> <p>In an action by a brakeman against his employer for injuries received while engaged in more dangerous work, which he had been required to do, it is proper to allow a competent witness to show what the actual duties of a brakeman were in practice, in order to find how the additional duties differed therefrom. But where the witness himself was hired as train baggageman, and, like plaintiff, had been ordered to take part in the extra work, a question as to whether, in his opinion, the order called him out of the line of his-duty, was immaterial.</p> <p>Where a railway employee is injured while in the performance of work to which he was wrongfully assigned and which he had never agreed' to do, he is entitled to recover damages from the railroad company.</p> <p>■Where a brakeman, on going into the employment of a railroad company, signs a contract binding him to obey all orders, rules, and regulations, but in which the general language applies equally to alt classes of employees, the agreement to obey all orders must be construed to apply to all which are issued to him in the line of duty in which he is employed; and it does not empower the company to assign him to other duties wholly disconnected therewith and differing therefrom. And while the clause binding him to use care and caution applies to anything he may undertake to do, it is for the jury to decide whether he has violated it.</p>

<p>Appeal from Wayne.</p> <p>Bill to compel surrender of insurance policy. Defendants appeal.</p>

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

<p>Horsestealing — Penalty.</p> <p>"Whether an information for horse-stealing should not expressly refer to Act 102 of 1877 to justify the infliction of the special penalty authorized by that statute, quaere. But the statute itself, as it imposes a heavier punishment for horse-stealing than the laws allow for manslaughter is an outrage on justice and ought to be repealed.</p>

<p>Appeal from Berrien.</p> <p>Bill to enjoin proceedings in ejectment, and to nullify decree of foreclosure. Defendants appeal.</p>

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

<p>Divorce — Ill-treatment—Conduct after fling MU.</p> <p>Ill-treatment soon after marriage, if followed, by a peaceable and on the-whole harmonious life for many years, can be given little weight in a suit for divorce for cruelty.</p> <p>Expressions used by the defendant in divorce after the bill is filed are-not entitled to consideration.</p>

<p> Costs of investigation of cha/rges against prosecuting attorneys. </p> <p>A county is liable for tbe costs of judicial proceedings only when expressly made so by the Constitution or by statute, or when the costs are incurred in some suit or proceeding instituted or defended for or on behalf of the county itself by some county officer duly empowered or by some agent duly authorized.</p> <p>An investigation of charges against a prosecuting attorney under Act 243 of 1879 is not a criminal proceeding in any such sense as to make the costs thereof a charge upon the county in which it is conducted; nor is the prosecuting attorney so exclusively a county officer as to render it proper that the county rather than the State should pay them.</p> <p>It is suggested that payment of the costs of investigations of charges against county and township officers should be provided for by legislation. n</p>

<p>Lease — Condition of re-eniry.</p> <p>'A three years’ lease of a farm stipulated that if the land were sold fora, certain sum the tenant should immediately surrender possession on being reimbursed for his labor and crops ; it farther provided that if the landlord did not return to his farm to occupy it himself the tenant was to have the privilege of continuing to farm the premises, as heretofore. Held, that in summary proceedings to recover possession for violation of the provisions of the lease the return of the-landlord was properly treated as on the same footing as a sale to a third person, and that on coming in at the end of the second year-after three months’ notice, and offering to pay for labor and crops,, the landlord had a right to resume possession.</p>

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

Mandamus to require the circuit judge to vacate an order Ye-instating an appeal from the judgment of a justice after it had been dismissed.

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

<p>Appeal from St. Joseph.</p> <p>Bill to correct description in mortgage and to foreclose. Defendant Packard appeals.</p>

<p>Error to Branch.</p> <p>Complaint for violation of city ordinance. Bespondent brings error.</p>

<p>Errorto Kalamazoo.</p> <p>Assumpsit. Plaintiffs bring error.</p>

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

<p>Bond for support — Breach of condition — Damages.</p> <p>Breach of the condition of a bond given by a son to support his parents during their natural lives entities the parents to foreclose the mortgage securing the bond, but does not necessarily entitle them to the full penalty of the bond as damages, especially if the condition has been satisfactorily carried out for some years, and no evidence . is given of the actual injury resulting from the breach.</p>

<p>Jfijectment — Disposition of case piecemeal — Defects in title me matter of law..</p> <p>A plaintiff in ejectment, claiming under an assignee in bankruptcy, gave-such proofs of title as he chose. Defendant, claiming as bona fide purchaser by a later deed from the alleged bankrupt, and also as a holder of tax titles, proved his purchase and his occupancy in-good faith. Before attempting to show that the tax titles were-invalid plaintiff requested the court to pass upon his own proofs of' title, and the court instructed the jury that he had made no case. Held bad practice to pass on plaintiff’s case by itself after defendant’s proofs were in, but as plaintiff had asked the court to do so,, he could not complain.</p> <p>A judge in charging the jury that plaintiff in ejectment has not made-out a case is not bound to point out the particular defects in his title, as the jury are not concerned therewith.</p>

Habeas corpus. The petitioner Lee asks to be discharged from the custody of the Sheriff of Wayne County in which he is detained under a warrant of commitment issued by Circuit Court Commissioner Charles Flowers in proceedings against Lee as a fraudulent debtor.

<p>Trustee for file benefit of creditors — Preferred debts — Husband a/nd wife— Interest — Bale of mortgage.</p> <p>A wife who had property independently of her husband, and whose husband was in debt to her, took, in her own name, a bond and mortgage for which her own and a portion of her husband’s property, including their homestead, were exchanged. They then took up a residence upon some city property belonging to the husband. A creditor who had a judgment against the husband afterwards •filed a creditor’s bill against him, and the receiver appointed in that proceeding brought suit to have the judgment and costs satisfied out ■of the bond and mortgage, and impleaded the husband and wife, the person to whom their property had been conveyed, a subsequent assignee of the bond and mortgage, who took them as security for a loan to the husband and wife, and the agent of this assignee who was also attorney for the husband and wife. Held (1) that the wife in taking the entire securities in her own name made herself trustee, for the benefit of her husband and his creditors, of all the fund except so much as represented her own land; (2) that she could not •charge the fund for dower and homestead interests, for her answer neither claimed dower nor showed that she was to have an increased interest in consideration of relinquishing it, nor was there any proof ■of any agreement that she should be paid for joining in the deed of the homestead; (3) that the wife’s claims, being for the purchase price of her separate property, and for a preferred debt, took precedence over the receiver’s claim upon the fund, but should be postponed to the claim of the person to whom she and her husband had assigned the mortgage as security for a loan.</p> <p>Interest was not allowed a claimant against a fund where the fund really consisted of property of which the claimant was in possession and enjoyment, and where, as against other claimants, the allowance would be inequitable as lessening their chance of payment.</p> <p>■Claims against a fund represented by a bond and mortgage are likely to be better protected by foreclosing against the mortgaged property than by merely selling the mortgage.</p>

Motion to vacate decree of divorce and remand for new trial on the ground that before the time for settling the case had expired the official term of the trial judge ended. Submitted April 4. Denied April 5. Appeal from Monroe. Bill for divorce. Defendant appeals.

<p>Trover by bona fide purchaser — Confusion of goods.</p> <p>An owner of pine lands, in contracting the pine to a shingle manufacturer, retained the title thereto until it should he fully paid for, and also reserved the fight to seize the shingles manufactured from it if the manufacturer failed to perform the conditions of his contract. The manufacturer mingled these shingles with others, and with the knowledge of his vendor’s agent, treated them all as his own property and sold them to bona fide purchasers. There was evidence '.tending to show that in buying the latter relied on this apparently ■exclusive ownership. Held, that they could maintain trover against •the owner of the pine if he seized any shingles sold to them which had not been manufactured from his. own timber.</p>