Volume 50 — Michigan Reports

<p>Contract, express or implied — Claim for services against estate — Decedents declarations.</p> <p>One cannot recover as upon an implied contract where the facts show an express contract. But if while relying upon an express agreement, he also claims that if that should not he shown the facts will imply an understanding and that he will rely on that, he may recover on whichever contract is made out.</p> <p>Where a claim for services is made against an estate and the claimant proves that the intestate has made declarations tending to show that he expected to pay for the services, the defense cannot he allowed to show that he has made declarations of a different character.</p> <p>Declarations of a decedent cannot he shown in resisting a claim against his estate if they are in favor of the party who made them and: adverse to the other.</p>

<p>Error to Branch. (Pealer, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p> Certiorari— Township drain. </p> <p>The Supreme Court will not, on certioi'am, exercise an original jurisdiction for the purpose of curing defects in proceedings for laying out a township drain.</p> <p>Persons aggrieved by proceedings to lay out a township drain should seek redress by appropriate proceedings in the circuit court, whence the appellate jurisdiction of the Supreme Court may be resorted to.</p>

<p>Expenditures for publie buildings— Consent of tax-payers.</p> <p>A city cannot be compelled by the Legislature to bear the whole-expense of county buildings; public burdens must be equitably apportioned. But if the Constitution does not forbid and the Legislature authorizes such action, it is for the city to determine whether it will of itself establish improvements that are not exclusively for its own purposes, and which will accommodate to some extent the larger bodies with which it is identified.</p> <p>A city council, if authorized by statute, can take action involving the expenditure of public money, without the approval of any other body, whether of tax-payers alone or of electors generally; and while it is proper and legal to provide that it may do so with the approval of the tax-payers, such a provision is not required by the Constitution.</p> <p>No constitutional objection to legislation authorizing a city to take upon itself alone the entire expense of a county building can be based on the probability that such action may affect the subsequent removal of the county seat.</p> <p>Under the Constitution a board of supervisors cannot raise more than $1000 annually for constructing or repairing public buildings. Act 35 of 1882, in authorizing the city of Saginaw to erect a county building and in providing that in case of the removal of the county seat the county should repay the amount expended, is defective.</p>

<p>Error to Muskegon. (Bussell, J.)</p> <p>Beplevin. ‘'Plaintiff brings error.</p>

<p>Municipal corporaMons — Reduction of salary.</p> <p>'The charter of Jackson provides that the compensation of the superintendent of public works shall be fixed by the board of public works and approved by the common council. Held, that the council alone could not reduce it.</p>

<p>Memwrrer — Might to accounting — Trusts.</p> <p>General demurrer for want of equity raises only the question whether there is any equity whatever in the bill.</p> <p>The right to an accounting in equity is incident to most trust relations, and is not cut oil by waiver of an answer under oath.</p> <p>C. agreed with B. & A. that the latter should make advances to pay for certain lands and for lumbering them; that title should be taken in their name and they should have a lien for the advances until paid and half the logs and half the profits after payment. O. proceeded to lumber the lands and B. died and was succeeded in the arrangement by his wife to whom A. sold out. Mrs. B. refused to permit O. to do. any more lumbering and made a partnership arrangement with H. under which they lumbered the lands themselves and sold the logs. O. filed a bill against A., Mrs. B. and H. for an accounting and for payment of balances. JSWthat, even though there was not strictly a partnership, B. & A. became O.’s trustees for land and timber, and the bill made out a sufficient case for answer and proofs.</p>

<p>Error to Wayne. (Full bench.)</p> <p>Forcible entry. Defendant brings error.</p>

<p>Certiorari to Alpena. (Hart, J.)</p> <p>Prooeedin&s to remove an administrator. The administrator brings error.</p>

<p>Error to Wayne. (Jennison, J.)</p> <p>Replevin. Defendant brings error.</p>

<p>Error to Saginaw. (Cage, J.)</p> <p>Forcible entry. Defendant brings error.</p> <p>Ejectment. Defendant brings error.</p>

<p>Error to Wayne. (Speed, J.)</p> <p>Appeal from allowance of claim against estate. The appellants bring error.</p>

<p>Ejectment — Estoppel—Affidavit for order of publication.</p> <p>Where a defendant in ejectment obtained possession from the executor of an estate, he is estopped, as against the estate or persons claiming thereunder, from denying their possessory right; and if they rely on the estoppel, and recover possession, defendant has the burden of disproving their title.</p> <p>Whether jurisdiction of foreclosure proceedings is not acquired where the affidavit for the order of publication is sufficient — Q.</p>

<p>Error to Livingston. (Newton, J.)</p> <p>Replevin. Defendant brings error.</p>

(D. C. Grage, J.) Bill to determine the rights of the parties to logs and lumber manufactured under a contract between them, and for an. accounting for the proceeds of sales. Defendants appeal.

<p>Error to Kent. (Montgomery, J.)</p> <p>Assumpsiy. Defendant Hackley brings error.</p>

<p> Highway by user— Construction of statutes. </p> <p>User for ten years will not of itself make a road a public highway if proceedings have not been taken to lay it out or establish it as one. Comp. L. § 1868.</p> <p>Every word in a statute must be presumed, where possible, to have some force and meaning and to have been made use of for some purpose.</p> <p>Comp. L. § 1868 in providing that “all roads not recorded which have been used ten years or more, or which may hereafter be laid out and not recorded, and which shall have been used ten years or more, shall be deemed public highways,” means that where the public authorities have taken proceedings for the establishment of a public way, a party proposing to contest them must do so within a reasonable time.</p>

<p>Divorce — Desertion.</p> <p>A husband who has permitted his wife to engage in business in another locality without making any effort to have her remain with him or to induce her to return to him, but on the other hand has shown himself to be rather glad she has gone, is not entitled to a divorce as for desertion.</p> <p>Mutual wrangling over money matters does not make out a case of extreme cruelty between husband and wife.</p>

<p>Error to Lenawee. (Howell, J.)</p> <p>Assumpsit. Defendants bring error.</p>

<p>Error to Alpena. (Green, J.)</p> <p>Assumpsit. Defendants bring error.</p>

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

<p>Appeal from the Superior Court of Detroit. (Chipman J.)</p> <p>Injunction bill. Defendants appeal.</p>

<p>Contract to put in machinery — Conditions.</p> <p>A proposal to put up certain machinery contained the clause “ No pay until tested and in perfect running order.'” Held that this made it merely an agreement for putting the machinery in position to he tested as a preliminary to the liability to retain or pay for it.</p>

<p>Certiorari to justice of the peace, highway commissioner and clerk of the township of Pulaski in Jackson County.</p>

<p>Error to Genesee. (Stickney, J.)</p> <p>Case. Defendant brings error.</p>

<p>Negligence — Failure to notify employee of unusual risks.</p> <p>The proprietor of a lime-kiln was in the habit of having the stone removed from the base of the kiln, as it was burned, and of pushing the mass, wedged into the crater above, down into the emptied space. When the mass gave way those who were upon it and crowding it down would step back to the margin of the crater to escape going down with it. The proprietor had an inexperienced laborer helping him at this work when an unusually large quantity of burned stone had been removed, and he did not warn him of the danger. When the mass dropped the workman fell with it and was burned to death. Held that his employer was liable for causing his death by negligence.</p>

<p>Error to Oceana. (V. H. Smith, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>Justices cov/rt — Statement of eause of action — Appeal.</p> <p>A statement of a claim that will sustain a recovery before a justice will be sufficient on appeal.</p> <p>Plaintiff in a justice’s court declared on the common counts and filed, as specifying the exact nature of his demand, an instrument which in itself constituted a contract sufficient to sustain an action and on which the transferee could sue. It was in terms payable to bearer, but bore the indorsement “without recourse” signed by the payee. It was understood by both parties as the substance of the declaration, and it fairly imported that the plaintiff was the transferee. There was no demurrer for uncertainty. Held that under the liberal rules for construing pleadings in a justice’s court there was enough to entitle plaintiff to show that he was the lawful transferee and to put the instrument itself in evidence.</p> <p>An instrument consisting of a promise to pay and an added stipulation that the article for which payment is to be made shall remain the payee’s property until the note is paid; that, if there is any default in payment it shall be at his option to take possession of the article or collect the note; and that if he takes possession he shall not be required to refund any money already paid but that it shall be deemed to have been paid for rent of the article, is a contract sufficient to sustain an action, and on which the transferee can sue.</p>

<p>Wife’s separate contracts — Suit impleading Twr husband.</p> <p>A wife can Lire out, with her husband’s consent, and can sue for, recover, and keep her earnings.</p> <p>A woman who is employed, with her husband’s consent, by a firm in which he is interested, and which has full knowledge of her claims-against them for her labor, will not be bound by any settlement therefor, made without her authority, between her husband and the firm.</p> <p>A married woman, in suing a firm in which her husband is a partner, must implead him as defendant, if the partners are not severally liable, in order to maintain her action.</p> <p>Where a wife sues a firm in which her husband is concerned, and impleads him as a defendant, and she calls him as a witness in her own behalf, his consent to her testifying for herself and against him as a defendant, is presumed, if he is present in court and makes no objection.</p>

<p>Error to Shiawassee. (Newton, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>Inheritance — Posthumous children.</p> <p>A man, in contemplation of his marriage, made a will in which he devised half of his property to his intended wife, and the rest to his sister in trust for his father’s family. He died in a little more than a year after his marriage, and twin posthumous children were born and died within a few weeks after his death. Among his assets was a life insurance policy in a mutual benefit association, but the avails of the policy were not subject to administration as part of his general estate, and were not liable for claims of creditors. Held that under the statutes of Descents, Wills and Distributions, which provide for children bom after the malting of a will, the wife was entitled to one-third of the insurance fund in the right of each of the children, and to half the remainder under the will. Comp. L. §§ 4309, 4331, 4346, 4377.</p> <p>The rights of posthumous children in their father’s estate vest immediately, subject to the contingencies of administration.</p>

<p>Certiorari to the Common Council and Recorder.</p>

<p>Error to Kent. (Montgomery, J.)</p> <p>Trover. Defendant brings error.</p>

<p>Appeal from Washtenaw. (Joslin, J.)</p> <p>Divorce bill. Defendant</p>

<p>Bower — Sufficiency of plaintiff’s claim.</p> <p>A claim of dower is prima facie established by evidence that the widow’s husband had possession under a warranty deed and made improvements, claiming ownership; and this evidence of title is sufficient, as against a person showing no better right, without proving the chain of title under which the husband came into possession. But such proof, though irregularly put in, would do no injury.</p>

<p>Error to Ottawa. (Arnold, J.)</p> <p>Assumpsit. Defendant brings error.</p>

(Hooker, J.) Injunction bill, to restrain defendant from proceeding to enforce an attachment lien against a stock of goods which had been assigned to him by his father for the benefit of the latter’s creditors, but which he had himself levied upon as a creditor after holding them for over ten days as assignee and then renouncing the trust without having filed his assignee’s bond.

<p>Error to Mecosta. (Fuller, J.)</p> <p>Embezzlement. Respondent brings error.</p>

<p>Landlord and tenant — Damage to tenants occupancy.</p> <p>A tenant gave Ms landlord a written license to occupy as much of the premises as should bo reasonably necessary in putting up an elevator. Held, that in suing the landlord for exceeding his privileges, the tenant could not show that the space to be occupied by Mm was marked out upon the floor; the license controlled, and the necessary space was a question for the jury.</p> <p>In an action for damages brought by a tenant against his landlord, a declaration charging the latter with acts which hindered plaintiff’s business will justify evidence that the conduct alleged caused him a loss of profits.</p> <p>An objection to the form of a question, merely, cannot be raised for the first time on review.</p> <p>The owner of a building, after renting a portion of it, put in an elevator, and in so doing interfered with his tenant’s occupation, for which the tenant sued him in damages. Held, that the tenant could show that he was injured also by operations, in connection with the work, in other parts of the building than that which he occupied.</p> <p>The parties to a lease do not, as matter of law, continue subject to its terms, where the tenant, against the landlord’s will, holds over and continues in possession, and seeks to bind the landlord by provisions of the lease which have become inapplicable in consequence of changes in the premises.</p>

<p>Error to the Superior Court of Detroit. (Chipman, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>Error to the Superior Court of Detroit. (Chipman, J.)</p> <p>Assumpsit. Plaintiff brings error.</p>

<p>Excktsion of facts equally hnown to decedents — Evidence of fraud — Prejudicial error — Execution of lease — Adx&rse possession.</p> <p>Plaintiff in ejectment sought to estop defendant by showing that defendant had taken a lease of the premises from the administrators of the former owner, who were also the owner’s heirs and through whom plaintiff claimed a portion of his interest. Defendant offered to show that the character of the alleged lease had been misrepresented to him, but this was ruled out as a fact equally within the knowledge of the administrators, who were dead. Held, that the objection, if good at all, was valid only so far as plaintiff’s interest was derived through the administrators and from their decedent.</p> <p>Fraud is not to be lightly inferred but must be clearly proved; and the party affected by it must complain promptly when the facts come to his knowledge.</p> <p>A verdict ought to be set aside which holds a lease to be void on the lessee’s claim that he signed it supposing it to be something else, and which, in so holding, ignores the testimony of the subscribing witnesses and the fact that after the lessee discovered the alleged mistake he made no protest for sixteen years.</p> <p>It is not prejudicial error to exclude testimony which, in itself, is so vague, inconclusive and insufficient that a verdict which should be based upon it would have to be set aside.</p> <p>Adverse possession does not have to be based on color of title, and it may become perfect even though the possessor originally had no shadow of title. ' But it must plainly appear, in such a case, that the real owner has been given a cause of action; and if the possession began in subordination to his right, he is entitled to assume that his right is continuously admitted until he finds that it is disputed, or that the possessor has renounced the title under which he entered; and until then the owner cannot be prejudiced by not bringing suit.</p> <p>Possession, when taken wrongfully, should put the real owner on his guard; but when held in apparent subordination to the owner’s rights, and without his knowledge that it is in opposition to them, it cannot be considered adverse.</p> <p>Claim of title in fee is rendered immaterial by accepting a lease from an adverse claimant.</p>

<p>Deed to man and wife does not convey an estate in common — Oonst/niction of teems of a deed.</p> <p>A deed to a man and his wife, “their heirs and assigns,” conveys an estate that is neither a tenancy in common nor a joint tenancy, hut one under which both parties are seized of the entirety and the survivor takes the whole. During their joint lives neither can so alien the property as to bind the other, nor does the husband’s attainder affect the wife’s right. FTor is the estate affected by the statute of partition.</p> <p>Whether a conveyance to a bona fide purchaser would not be good when received from the survivor of two persons who, in the deed to themselves, had been named and described as husband and wife, and who had been publicly married and lived in that relation, and had accepted the deed in that character — Q.</p> <p>The estate conveyed by a deed describing the grantees as husband and wife cannot, under the statute of frauds, be shown by oral evidence to be an estate in common.</p> <p>The terms of a deed must he given their legal effect, which the parties or their privies cannot contradict hy parol evidence in any collateral matter ; this applies to the grantee’s name, which is part of the deed, and to the interest conveyed, which, in a deed to several persons, is the same to each if not otherwise designated.</p> <p>One who claims under a deed confirms all its provisions and cannot establish his claim by adopting those provisions, only, which are in his favor, while he repudiates or contradicts others that are repugnant thereto.</p> <p>A divorced woman who had children, married a man who, as it after- , ward appeared, had another wife living from whom he was not divorced. They lived together as man and wife and were so regarded by the public. Property belonging to an infant was sold to them under an order of the Court of Chancery which named the man and recited that he and “his wife ” had offered a certain sum for the property and farther directed that the infant’s guardian execute a conveyance to him and ‘ ‘his wife. ” A deed was executed accordingly in which the grantees were named and the woman’s name followed by the words “his wife.” The woman died and the man conveyed away the entire property. Held that the woman’s children by her first husband could not contradict the legal operation of the guardian’s deed, by parol evidence that their mother was not the lawful wife of her second husband and that the deed therefore conveyed an estate in common in which they had a right of inheritance. Whether such a showing would not also be excluded by the operation of the chancery order as a judicial act — Q. t</p>

<p>Error to Cass. (A. J. Smith, J.)</p> <p>Ejectment. Plaintiffs bring error.</p>

<p>Sidewalk injury — Notice of defects to municipal authorities</p> <p>A woman, was injured by stumbling in a gap in the cross-walk while running for a neighbor, by night, in a case of sudden illness ; and she brought suit against the municipality for damages. The walk had been out of order before and planks had occasionally been missing as if tom up in contempt of its dilapidated condition. The place was within sight of the street commissioner’s residence. Meld that there were facts to go to the jury on the question whether the municipal government did not have notice of the condition of the walk in time to repair it before the accident.</p> <p>Notice of the unsafe condition of a public highway need not be express, to make the municipal government liable for accidents resulting therefrom; it may be presumed from the existence of facts with which ignorance is incompatible -unless failure to exercise reasonable official care is assumed.</p> <p>Municipal liability for injuries arising from defects in the public ways is the same, so far as concerns innocent persons, whether the condition of the way is due to wear and decay or to the misconduct of individuals in tearing it up ; the obligation to repair speedily is the same.</p>

<p>Error to the Superior Court of Detroit. (Chipman, J.)</p> <p>Cask. Defendant brings error.</p>

<p>Error to Lenawee. (Howell, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>Beplevin — Judgment as incase ofnm-suM — Notice of assessment of vakie.</p> <p>A defendant asking for judgment as in case of non-suit must make out a complete case within the reason on which his application rests and in strict conformity to the rules and practice of the court.</p> <p>General disregard of a particular rule of court hy consent, acquiescence, or waiver will not excuse such disregard in a particular case where the adverse party insists upon his rights under the rule.</p> <p>A motion for judgment as in case of non-suit on plaintiff’s neglect to bring on the cause at either of the first two terms following joinder of issue, is premature if made before the second term has opened.</p> <p>An assessment of value in replevin, and final judgment thereon, cannot accompany the allowance of a motion for judgment as in case of non-suit, without any notice and hearing beyond that given for the motion.</p> <p>An assessment of value in replevin is authorized on the trial or on the assessment of damages (Comp. L. § 6758). Beld, that this refers to the stage of the case at which damages are assessed, and not to the act of assessing them ; and that defendant’s omission to claim damages does not dispense with the necessity of assessing the value, or of the notice of assessment in any case in which he demands judgment for value. '</p> <p>Judgment for value in replevin is not final, but interlocutory, and only decides the right, while the ascertainment of the value is referred to a farther inquiry by the court.</p>

<p>Lerne to file exceptions to special findings — Laches.</p> <p>Mandamus to compel a court to allow the filing of exceptions to special findings, was denied where no motion for leave to do so had been made until nearly two years after the findings had been filed and judgment rendered thereon, and the judge who had heard the case and entered judgment had gone out of office,</p>

<p>Error to Kent. (Montgomery, J.)</p> <p>Case. Defendant brings error.</p>

<p>Assignment for benefit of creditors — Mcceptions.</p> <p>Where an assignment for the benefit of creditors limits the transfer to property “ which might be reached or recovered by any of the creditors of the ” assignee, it sufficiently excludes such property as would be exempt by law.</p> <p>A bill filed by one who has made an assignment for the benefit of creditors and asking that the assignment should be so corrected as to secure to complainant his rights and exemptions in the property assigned, should specify the rights of exemption relied on, or present a statement of facts showing what they are and to what they apply.</p> <p>A bill which seeks relief on the mistaken assumption of a fact which does not exist, but which is the only ground relied on, should be dismissed without prejudice.</p>

Case made after judgment from Oass. (A. J. Smith, J.Y Trespass. Plaintiff made and recorded a plat of lands on which he caused certain streets to be represented. One of the streets he opéned, but he continued to occupy a portion of the space designated for the others, kept it within his own enclosure, and used it for farming purposes.

<p> Power of attorney. </p> <p>A power of attorney to sell “ three certain lots of land in the village of Pentwater in said county of Oceana, belonging to me ” was held sufficiently precise to support sales from three tracts, two of forty acres each, and one of eighty, lying within an unincorporated settlement called the village of Pentwater, and all belonging to the person who gave the power, who could not repudiate this construction after taking the benefit of the sales. And any ambiguity which might arise from the previous platting of one of the tracts into smaller lots, would be iatent'.merely and might be removed by parol evidence.</p>

<p> Execution against swety on agrpeul bond. </p> <p>Until taxation of costs an execution does not become “legally issuable” witbin tbe meaning of Comp. L., § 5462, which forbids a levy on the property of the surety on the appeal bond unless the execution is issued within thirty days from the time when it shall be “legally issuable.”</p>

<p>Limorce — Affirnumce.</p> <p>Where a decree oí divorce granted to the wife rests wholly on the testimony, an appellate court ought not to reverse it unless convinced that it must have reached a different conclusion'if it had been in the place of the lower court and had its opportunities for deciding correctly.</p>

<p>Negligence — Fatal injury from mining blast — Accident on private iJm'oughfa/re — Due precautions — Secondary causes.</p> <p>A hoy was struck on the head by a stone thrown in a mining blast. Held, that in an action for the injury it was not clearly error to allow the testimony of witnesses that they had not heard any warning before the blast was fired, even though there was positive testimony that such warning had been given.</p> <p>In an action for injury from a mining blast the questions, whether any notice was given before the blast was fired, and if so, whether it was sufficient, are questions of fact; and if there is any conflict in the evidence it must go to the jury.</p> <p>The errors of a jury in passing upon facts are not open to review in the Supreme Court; the remedy therefo*> if any, is by motion in the trial court for a new trial or to set aside the verdict.</p> <p>An injury from a mining blast to a person passing along a thoroughfare on the premises of the mining company is not excused by the fact that the road is not a public highway, if the company had opened it for the convenience of all persons who had occasion to use it.</p> <p>A mutual understanding between adjoining mining companies that each, in blasting, may throw rock upon the other’s premises will be no defense to an action for injury to a person rightfully on such premises.</p> <p>Error cannot be based upon the legal positions taken in the arguments of counsel unless the trial court adopted them.</p> <p>In an action for negligent injury resulting from the lack of due precau-; Lions in the conduct of one’s business, defendant cannot be permit- ] ted to answer that the profits on the business are not sufficient to warrant taking them. And the question as to the necessity for the ' precautions is for the jury. So held where it was a question whether in blasting in an open mine, the pit ought not to be covered before firing the blast.</p> <p>Where, in an action for fatal injury, it becomes a question whether death resulted from the injury or from some disease with which it had become involved, the party causing the injury cannot escape full liability without showing that death must have resulted if the injury had not been done.</p>

<p>Error to Marquette. (Grant, J.)</p> <p>Debt. Defendants bring error.</p>

<p>Error to Marquette. (Grant, J.)</p> <p>Case. Defendants bring error. .</p>

<p>Condemnation proceedings — Challenges to ju/rors — Judicial knowledge— Awa/rd ofjw’y — Admission of evidence — Practice.</p> <p>In reviewing proceedings for tile condemnation of lands, the Supreme Court cannot consider any reasons against the confirmation of the report of the jury except those which were presented to the lower court.</p> <p>In reviewing the action of a court in overruling a challenge to a juror, no reasons for the challenge can he considered except those that were - given at the time it was made; error cannot be brought into the case retrospectively.</p> <p>When a party seeks a ruling on which to base an appeal, if it is wrong, he cannot rely on the judge’s private knowledge of facts, but must bring them into the case in some authoritative and responsible form, so that they may become a part of the record for the purposes of the review.</p> <p>A fund raised in Detroit by general contribution to aid in the building of a railroad to Bustler, Ind., was commonly known as the “Butler bonus. ” But in proceedings to condemn land for a road to be leased to the Butler road a court could hardly take judicial notice of what the Butler bonus was for the purpose of sustaining a challenge to a \ juror on the ground that he had subscribed thereto.</p> <p>A subscriber to a railroad aid fund, who takes no stock in the road, acquires no legal interest in another projected road from the fact merely that it is to be leased to the road which he has aided.</p> <p>A challenge to favor in proceedings to condemn land is properly overruled if the judge knows at the time of nothing which would give the juror a bias; and if the challenger knows of facts which would do so, it is not enough to present them for the first time as a reason for refusing to confirm proceedings which have been long in progress at considerable cost, and in which the juror has taken part without any showing of legal cause against his acting.</p> <p>The award of the jury in proceedings to condemn lands for railroad uses will not be set aside merely because of the admission of testimony that would not have been admissible under strict legal rules, unless it appears to have caused substantial injustice.</p> <p>Where the jury in proceedings to condemn land for a railroad take all measures that they would if they were personally concerned, to acquire a knowledge of the value of the land and of the injury the road is likely to cause it, it is presumable that farther evidence as to the public importance of the work and as to amounts of compensation to other owners will no more influence their judgment than such evidence would if they were merely buying and selling.</p>

<p>Biting dog — Estoppel from denying ownership.</p> <p>In an action for damages from being bitten by a dog an instruction that there was no evidence to show that defendant kept the dog, but that on the contrary it belonged to her husband, or at all events that he was the keeper of it, would preclude any finding that the defendant was the keeper of the dog.</p> <p>A man bitten by a dog asked a woman as to who owned it, and she said it belonged to her. He accordingly sued her. Beld that she would be estopped from denying ownership on the trial if she knew that the inquiry was made for the purpose of finding out who was liable for the injury.</p>

<p>Appeal from Mecosta. (Fuller, J.)</p> <p>Redemption bill. Complainant appeals.</p>

<p>Appeal from Monroe. (Morris, J.)</p> <p>Foreclosure. Defendant appeals.</p>

<p>Error to Ionia. (Russell, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>Error to Ionia. (Y. H. Smith, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>Trover — Sight of possession — Forcing an enhance — Question for court— Oross-excminations.</p> <p>In trover against a sheriffs officer for chattels seized hv him on execution, defendant can show, for the purpose of defeating the action, that plaintiff had no right of possession in his own name.</p> <p>Where the facts are unquestioned from which a rule of law is to he deduced, the judge cannot leave it to the jury to deduce the rule, but must do it himself, and give them positive instructions upon the facts.</p> <p>Where distinct portions of the same building are used for a store and dwelling, the rule that an officer, in serving process, must not force the outer door of respondent’s dwelling applies only to the outer door of that part of the building which is occupied by the family for domestic purposes; and if the building has a common entrance, it applies to the inside door which separates the dwelling from the rest of the interior.</p> <p>A “dwelling house,” when considered in relation to burglary, includes whatever is within the curtilage, if used with it for domestic purposes; and it covers all those buildings the forcible breaking of which for felonious purposes during the hours which peaceable and law abiding persons give up to rest would naturally cause alarm, distress and danger.</p> <p>A householder waives his right to close the outer door against an officer serving process, by allowing him to enter; and if the officer once gains entrance through the outer door without force or fraud the privilege is gone, and he can force any other door open if necessary to make complete service of his process.</p> <p>In trover the nature of plaintiff’s possession can be inquired into on cross-examination of the plaintiff.</p>

<p> Bxoeptions to charge to jury. </p> <p>The accuracy of a charge to the jury must be decided on a consideration of the whole charge and not merely of detached passages or isolated expressions; andan exception to a single remark of the judge, without making an effort to have it corrected or explained, will not be sustained unless the appellate court is satisfied that justice requires it.</p> <p>A jury which had retired, sent in to the judge to ask whether it would be proper to give defendant damages if they should find for the plaintiff. The judge ordered the jury to be brought in, and said; “I simply state to the jury, No, and also state that in the absence of the reporter and counsel I cannot say anything more and do not say anything more.” Defendants’ counsel then appeared, and on hearing the facts excepted to the instruction, but made no request for any other, nor any objection to the form of the proceeding, nor suggested that the jury misunderstood it or that they be recalled or that there was any error. Held that the exception should not be sustained.</p> <p>The mortgagee of chattels took them on writ of replevin, and one of the defendants claimed that some of his separate property was included among them. The judge charged that plaintiff would have no right to take such goods if they had not been intermingled with the rest and if he knew of the separate ownership. The jury afterward asked if they might give costs to defendant in finding for the plaintiff, and he said No. Held that it was not to be presumed that they understood this as overruling his former instructions.</p>

<p> Mamdamue to compel payment». </p> <p>Mandamus lies to compel a township treasurer to pay to relator so much of the money in his hands as is covered by the warrant óf a school director drawn in relator’s favor and in proper form, even though it does not specify a precise sum but is for all such money in his hands as was raised for the purposes of the school district and belonged thereto.</p> <p>The custodian of public funds is bound to make payment on a proper warrant to the extent of the moneys lawfully in his hands, and cannot refuse on the ground that his right to the custody of the remainder is disputed.</p> <p>Mandamus to compel the payment of money may be granted so far as concerns a portion of the demand, while as to the rest the application is dismissed.</p>

<p>Evidence of recognition of prisoner — Hearsay— Uncalled, for statements by witness — Collateral facts — Footprints—Proof of ch,a/raeter.</p> <p>A witness in a criminal case can testify, as introductory to his own investigations, that another witness had recognized the prisoner after the offense was committed; but he cannot state what such witness said as to the respondent’s identity, as this would be hearsay.</p> <p>In a prosecution for burglary a woman who slept in the house where it was committed testified that she saw the burglar plainly enough to recognize him afterwards, and that two days afterward, while with her husband, she saw respondent and told her husband she believed him to be the man. The husband testified that on that occasion she recognized the respondent and added that she recognized him as being the man that was in her bed-room at the time of the burglary; that he told her to be sure, and she said she was sure. Held that the additional statement was hearsay and inadmissible.</p> <p>A witness cannot bring error into a case by volunteering inadmissible testimony that is immediately stricken out by the trial judge.</p> <p>In prosecuting for a particular burglary the people can show facts apparently connected with the act of breaking into other houses at the same time if they tend to show that the several burglaries were parts of one scheme and that the person concerned in the others was therefore guilty of the offense for which the prosecution was instituted; the tendency of the evidence is a question for the jury.</p> <p>A prisoner on trial for crime cannot be required, against objection, to try on a shoe to determine whether tracks found at the scene of the offense were his own; nor if he objects, can he properly be required to measure the shoe after trying it on. But if he tries it on without objection, the ruling that he must measure it is not prejudicial error, as any witness could do it as well as he.</p> <p>A person on trial for crime is entitled in all cases to the benefit of testimony to his good character; but if the evidence of his guilt is convincing beyond reasonable doubt he must be convicted notwithstanding his good reputation.</p>

<p>Exclusion of questions — Motion for new trial — Alibi.</p> <p>Befusal to permit a question is immaterial if a question of the same import is afterward allowed and counsel are permitted to pursue the subject as fully as they see fit.</p> <p>Findings on a motion for a new trial cannot be brought up for review with the rest of the case.</p> <p>In instructing the jury as- to the evidence of an alibi the judge told them that the defense, if made out, was perfect, and was conclusive of respondent’s innocence, and that they must be satisfied of respondent’s guilt by proofs beyond reasonable doubt, but that as the proof of the alibi was in conflict with the direct proof offered by the prosecution, they should weigh the testimony thereof in connection with the other testimony in the case, and consider it as met or explained by that of the defense, and determine whether, in view of all the testimony, the witnesses to hn alibi were mistaken or that they were able to say from the testimony of the prosecution, as explained by that of ¿the defense, that there was no reasonable doubt that respondent was guilty. Eeld that it could not be said that the jury might not have been misled by this charge into thinking that the alibi must be affirmatively shown, and that a reasonable doubt of the prisoner’s presence would not warrant his acquittal.</p> <p>A jury in a criminal case should not be instructed to test the truth of evidence given by the defence by that of the prosecution where it is inconsistent therewith.</p>

<p>Cross-examination-Forged writings.</p> <p>Where a respondent in a criminal case is examined as a witness on his own behalf it is discretionary with the trial judge to allow him to be cross-examined as to criminal proceedings against him.</p> <p>Where the jury, in a prosecution for forgery, have the alleged forgery before them for inspection, together with genuine writings, they are not to rely solely on the testimony of experts, but must use their own judgment in deciding upon the effect of a comparison of the papers as evidence in the case.</p> <p>A finding by a trial judge in overruling a motion for a new trial in. a criminal case can not be made a ground for the review of the case.</p>

<p>Inmrmce — Solicitation of policies contrary to lam.</p> <p>In a prosecution for the unlawful solicitation of insurance under Act 148 of 1881, it is not material to the respondent whether the company from which the policy had been taken had ever done business in the State of Michigan.</p> <p>Where there is any evidence whatever tending to sustain a charge made in any of the counts of an information, the Supreme Court will not, on review, attempt to weigh it or to say whether the- jury ought or ought not to have considered it sufficient to sustain the charge.</p> <p>A comparison of evidence by offsetting that which is given for one party against that which is given for his adversary and subtracting one from the other, is weighing the evidence, and is solely for the jury.</p> <p>A court of review ascertains whether there is any evidence to sustain a verdict by examining that which is most favorable for the prosecution and discarding all the rest.</p> <p>An exception to a verdict for want of evidence should be sustained if the appellate court finds that there is a total want of evidence on any essential point.</p> <p>Act 148 of 1881 makes it unlawful for any person as “ agent ” to solicit business in Michigan for an insurance company without obtaining the certificate of authority from the Commissioner of Insurance provided for by Comp. L. § 2987 which makes the term “ agent ” include any acknowledged agent or any other person who shall in any manner aid in transacting the insurance business of any company not incorporated by State law. Held that evidence that one man filled out for another a blank application on which insurance was effected by a policy issued by a company which he assumed to represent, fairly tended to show that he was acting as agent for the company.</p> <p>[n a prosecution for the unlawful solicitation of insurance in a foreign company it seems that it is unnecessary to introduce in evidence the written application for insurance if that is in the possession of the company and beyond the jurisdiction of the court.</p> <p>The prosecution in a criminal case cannot take proofs outside of the State, though the respondent may do so.</p> <p>A trial court, in charging the jury in a criminal case, cannot be limited to a part of the evidence and required to instruct them that if they find the facts to be as stated therein, and that nothing farther was done, they must acquit; the court is entitled to go farther and instruct the jury that if they find the respondent did as the evidence tends to show, he would be guilty.</p> <p>A charge must be examined as a whole; its correctness cannot be tested piecemeal.</p> <p>Act 148 of 1881 punishing the solicitation of fire and inland marine insurance in Michigan by persons who have not obtained authority to do so from the Commissioner of Insurance, applies to the agents of mutual insurance companies organized in other States, as well as to other classes of foreign companies.</p> <p>The public policy of a State in regard to particular matters is deducible from the general course of its legislation relating thereto.</p> <p>Foreign corporations organized to do business not open to citizens generally cannot carry on business in Michigan unless express or implied permission is given them to do so.</p>

<p>Exceptions before judgment from Berrien. (A. J. Smith, J.)</p> <p>Larceny. Respondent was convicted.</p>

<p>Appeal from Montcalm. (Y. H. Smith, J.)</p> <p>Bill to establish a right to timber upon lands held by defendants. Complainant appeals from dismissal.</p>

Mandamus. Belator, being Superintendent of Fisheries for the State of Michigan, was removed from that position by the State Board of Fish Commissioners.

<p> Municipal Salaoies. </p> <p>Merely appropriating, for the payment of a municipal salary, a less amount than had been paid before is not to be construed as fixing ■ the salary at the smaller sum, if the body making the appropriation continues to allow salary bills at the former rate.</p>

<p>Habeas Corpus.</p>

<p> Damages for false rebwrn by sheriff. </p> <p>A declaration claiming damages from the sheriff for the false return of a writ is sufficient after judgment to support a recovery, though the return had been made by deputy.</p> <p>A sheriff is answerable for the fault of his deputy in making an improper return of a writ.</p> <p>Where a litigant is prejudiced by the false return of the sheriff, but discovers the error in time to escape such damages as would arise from proceeding farther, the sheriff cannot be held for the consequences of his going on, unless he assents thereto; and the litigant will be considered as acting in his own wrong.</p>

<p>' Gonsti'uation of lease — Extension.</p> <p>A year's- lease gave the privilege of an extension for three years, if written notice of the intention to continue should he given thirty days before the expiration of the year. EM that the estate created by the lease terminated at the end of the year if the notice was not given as stipulated; and that an additional estate for three years could not, under Comp. L. § 4694, he created by any oral agreements ■ or any waiver of the stipulation, actual or constructive, even though the tenant held over.</p> <p>Belaslvman v. Bet'ry 20 Mich. 292, distinguished, in that the option allowed in that case did not have to be expressed in writing.</p>

<p>Appeal from the Superior Court of Detroit. (Chipman, J.)</p> <p>Injunction bill. Complainant appeals.</p>

<p>Error to Van Buren (Arnold J.)</p> <p>Assumpsit. Defendant appeals.</p>

<p>liability of executor on bond as residuu/ry legatee to pay debts and legacies— Consent of attorney — Production of record proof — Notice of proceedings to settle claims against estates.</p> <p>Where an executor who is also residuary legatee has given bond to pay o t£ie debts and legacies of the testator, he becomes entitled to take, possess and dispose of all the property of the estate at his discretion, and without returning into court any inventory or account whatever ; the debts and legacies become personal liabilities against him Which he and his sureties must pay and discharge even though they exceed the assets.</p> <p>A probate order, providing for the adjustment, by the court, of a claim against a decedent, contained the recital “the attorney for the executor of the last will and testament of said deceased being present in court and consenting thereto.” Reid, insufficient in itself, and without at least identifying the attorney, to give the court jurisdiction.</p> <p>An attorney under mere general retainer cannot bind his client to any particular action by giving an unauthorized consent thereto ; and a - layman, acting as attorney, cannot give consent at all to any action binding his principal, unless he is specifically and formally empowered for the very purpose, and his authority is produced and proved in court.</p> <p>Consent to an order of court takes the place of process to bring the party consenting within the jurisdiction ■ and the record should name the person assuming therein to act for the party, so that the latter may know to whom to look for indemnity in case the appearance in his behalf was unauthorized.</p> <p>An attorney who relies upon record proof to support an assertion must produce the particular record ; it is not enough that he merely produces the file in which he claims it is to he found.</p> <p>An executor under ordinary bonds must defend the estate against claims and can pay none that have not been judicially approved ; he cannot dispense with proof, or bind himself or the estate by admissions. But an executor who has given bond as residuary legatee can settle claims at his discretion ; no one can question his acts but his sureties, nor can they, except when it is sought to charge them personally on his default in making payment.</p> <p>Giving bond as executor and residuary legatee substantially completes administration; and the intervention of the Judge of Probate after-wards, if admissible at all, is never essential unless, perhaps, where the executor disputes a claim.</p> <p>Where an executor, as residuary legatee, has given bond to pay the debts and legacies, no commission need be issued to consider claims against the estate.</p> <p>Notice by publication is insufficient in any except the ordinary proceedings to adjust claims against an estate; if such adjustment is attempted by the probate court after the executor has given bond as residuary-legatee, the notice which, in such cases, is to the executor and his sureties, must be personally served.</p> <p>Settlement of estates is in ordinary cases a proceeding in rem to which in contemplation of law all persons interested are parties ; the estate is the res, and as the successive steps are taken in a limited time, and are presumed to be watched by the parties concerned, notice to them by publication is sufficient. But when the executor, as residuary legatee, has given bond to pay debts and legacies, the proceeding is no longer in rem for the res disappears. When the estate passes from the control of the probate court, a claim then attaches to no specific property, but becomes the personal obligation of the debtor and his sureties alone, and notice of proceedings to enforce it must be served on them personally and on no others, as heirs, beneficiaries and creditors have no interest in it and no right to be heard.</p> <p>Constructive notice of proceedings to enforce personal demands is insufficient.</p>

<p>Appeal from Berrien. (A. J. Smith, J.)</p> <p>Foreclosure bill. Complainant appeals.</p>

<p>Bill for relief against mortgage — Sufficiency of pleading — Parties.</p> <p>Where a bill for relief against a mortgage neither counts upon nor mentions an alleged assignment to the complainant of a right to redeem, such assignment is outside the issue.</p> <p>A firm of brothers were indebted to two other brothers. One of the partners joined with his wife in a mortgage to the other brothers to cover all sums which, the firm then owed or might thereafter owe them. The firm afterwards dissolved, and in the agreement for dissolution the remaining partner bound himself “to vest a mortgage on his interest ” in the property already mortgaged, in the two broth, ers to whom it had been mortgaged “in consideration that they * *' shall fully obligate themselves to secure to ” the retiring partner the performance of this agreement. The remaining partner afterwards quit-claimed the equity of redemption to the mortgaged property to his wife, and she filed a bill against the mortgagee brethren, asking that the mortgage might be discharged, or that the amount due might be ascertained and she allowed to redeem. Reid th&i under the dissolution agreement the mortgagees were trustees of the mortgage for the retiring partner and he should have been made a party defendant to the bill; farther, an accounting should be had with regard to the transactions to which the mortgage directly applied, and another, if necessary to adjust the claims of the cestui que trust.</p>

<p>Appeal from Ingham. (Gridley, J.)</p> <p>Divorce. Cross-bills. The wife appeals.</p>

<p>Assigned claims — Consideration—Assignment of stock assessments</p> <p>In an action by the assignee of a claim for an amount unpaid on a stock assessment, the defendant, if a stockholder in the assigning company, may have a right to know whether or not he is to be sued by a purchaser for value, and he can therefore' show the consideration, of the assignment.</p> <p>Where the amount due on a stock subscription has been regularly called in by assessment, and stands as a liquidated demand on which suit will lie, it seems that the claim can be assigned as well before judgment as afterward, though the assignment, like all assignments of things in action, would be subject to equities and could not deprive the debtor of any stockholder’s rights.</p>

<p>Witnesses — Grounds of objections to questions — Meperrts in handwriting.</p> <p>Reasons for objecting to testimony must be adhered, to on review as they were stated to the trial judge; any other grounds of objection are waived, if they were not stated, and cannot be raised in the appellate court.</p> <p>A witness having testified, on cross-examination, that a chancery bill against him had been sworn to, was farther asked whether it charged him with forgery. It was objected that the bill was the best evidence. Held, that the question was relevant as tending to test the witness’ memory, and as a step toward impeachment; and that in the absence of an objection that the bill ought first to be shown to the witness, the exception might be treated as if that had been done, and the allowance of the question as within the discretion of the trial judge.</p> <p>Whether a witness has been shown to be an expert is for the trial judge to determine.</p> <p>The opinions of a number of business men as to whether the handwriting of a note had been so altered as to raise the amount, was allowed to go to the jury with the remark by the trial judge that if such evidence had been objected to he would have excluded it; that the jury might consider it, but that the witnesses had no better means of knowing when the disputed letter and figures were written than themselves. The record did not show that the witnesses were any better qualified than the jury to judge, on mere inspection, that an alteration had been made. Held, that there was no error in the instruction.</p>

<p>Error to Shiawassee. (Newton, J.)</p> <p>Trespass. Defendant brings error.</p>

<p>Appeal from Shiawassee. (Newton, J.)</p> <p>Foreclosure bill. Defendant Drake appeals.</p>

<p>Appeal from Shiawassee. (Newton, J.)</p> <p>Divorce bill. Defendants appeal.</p>

<p>Appeal from Berrien. (A. J. Smith, J.)</p> <p>Bill to set aside deed. Complainants appeal.</p>

<p>Evidence in suit on bond — .Windings of fact.</p> <p>Evidence of the proceedings against a person arrested as a fraudulent debtor were properly admitted in an action upon the bond given by him in the course of such proceedings.</p> <p>In a case tried by a judge without a jury it is for the trial judge himself and not for the appellate court to decide what conclusions the evidence will warrant.</p> <p>A finding of facts should be obtained as well as the conclusions of law dependent thereon, if a party to an action at law tried without a. jury desires the Supreme Court to review the whole case.</p>

<p>Error to Berrien. (A. J. Smith, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>Special findings — Time for entry of judgment — Joint panties.</p> <p>A special finding by a trial judge must consist of something more than an informal statement made up of facts, items of evidence, offers of proof, rulings on objections and an opinion on the result. Such a document cannot be made the basis of a judgment.</p> <p>Judgment on a special finding filed in vacation in a civil case, must be entered as of the last day of the preceding term, or it will be irregular. Comp. L. § 4966.</p> <p>A judgment against the plaintiff in replevin, for value, cannot be entered in favor of several defendants jointly, where some of them are not found to have been interested.</p>

<p>Error to Saginaw. (C. H. Gage, J.)</p> <p>AssuMPsrr. Plaintiff brings error.</p>

<p>Special findings — Legal rulings.</p> <p>Error cannot be assigned upon the incorrectness of findings of fact in a case at law; the facts cannot be reviewed.</p> <p>A party to a case tried by a judge without a jury is not damnified by the rulings of the judge upon separate questions of law if the findings of fact do not entitle the party to relief.</p> <p>'Where the moderator and assessor of a school district are sued upon an order signed by them, a finding that it was signed on a false and fraudulent statement that the school director approved and would sign it, and on condition that it should be of no force unless he did' sign it, and the farther finding that there was no purpose to contract, except for the district, defeats an action thereon in the absence of’ any showing of subsequent action creating contract relations, or of any action by defendants, taken with a knowledge of the facts and! estopping them personally.</p> <p>The Supreme Court cannpt change a finding of fact.</p>

<p>Appeal from Shiawassee. (Newton, J.)</p> <p>Bill to clear title. Defendants appeal.</p>

<p>Error to Van Buren. (Hawes, J.)</p> <p>Trover. Defendant brings error.</p>

<p>Error to Wayne. (Speed, J.)</p> <p>Case. Plaintiff brings error.</p>

<p>Error to Wayne. (Chambers, J.)</p> <p>Assumpsit. Plaintiff brings error.</p>

<p>Certiorari to Daniel Sheehan, justice of the peace. Proceedings quashed.</p>

<p>Certiorari. "Writ quashed.</p>

<p> Release pending appeal in summa/ry proceedings to recover possession. </p> <p>Where a landlord, recovers possession from his tenant in summary proceedings, and pending appeal by the tenant the term claimed by him expires, and the landlord immediately lets the premises to tenant’s wife, the appellant cannot plead this as a fact puis darrein amounting to surrender by himself and acceptance by the landlord and precluding judgment for the landlord on the appeal.</p> <p>Complainant in summary proceedings to recover possession of land from i tenant who is found to have been wrongfully holding over when ' the proceeding was begun, is entitled to judgment for restitution and to damages and costs; and if, pending appeal by the tenant, the term claimed by him expires, and the landlord regains possession, the landlord’s right to recover damages and costs upon affirmance of the judgment in his favor is not thereby lost, even though he no longer requires process to restore him to possession.</p>

<p>Undue influence— Grantor's competency— Costs.</p> <p>Undue influence is not necessarily to be presumed Iroiu the fact that a man, when in a dying condition, made a deed of land to be immediately transferred to a woman who had been regularly married to him and had lived-with him for many years as his wife, and who, unless provided for by him, would have been left without proper support.</p> <p>A decree dividing costs between the parties was not disturbed on affirmance where the prevailing party did not also appeal.</p>

<p>Declaration — Additional count on appeal — Attorney’s fee in mortgage — &w>'plus on foreclosure,</p> <p>Where, on appeal from justice’s court, the plaintiff is allowed to amend his declaration by adding thereto a count which tenders no new issue, and which is not then objected to, no error is committed to defendant’s prejudice.</p> <p>A mortgagee bid off the premises on foreclosure at a figure exceeding the amount of the debt, costs, taxes and insurance, by about $40. The mortgage provided for an attorney’s fee of $50. Held, that the mortgagee was bound to pay over the surplus of $40 to the sheriff, for the benefit of the owner of the equity of redemption, and that if he did not do so, the latter could sue him as for money had and received to his use.</p> <p>A mortgagee who, on foreclosure, bids off the premises at a sum exceeding the debt and legal charges, is estopped, at least in the absence of evidence, from claiming that he did not have to bid the surplus sum to obtain the land, and he cannot repudiate that part of his bid as fictitious. Nor can he deny that he is liable for the surplus to the owner of the equity of redemption, on the ground that he has not paid it over to thé sheriff for the latter’s benefit.</p>

<p> Execution sák of premises including an unselected homestead. </p> <p>Execution was levied upon land in which, the debtor did not designate ' his homestead. He afterward sold a portion of it, and this same parcel was afterward sold to satisfy the execution, and was bid in by the creditor. Ejectment by the execution purchaser was resisted by the debtor’s grantee on the ground that the officer levying execution had not set off the homestead. Eeld, that the plaintiff in ejectment might show that the debtor; after selling what he had of the premises levied upon, had mortgaged the rest, and had referred to it in the mortgage as “ that portion occupied by me as a homestead.”</p> <p>Where an owner of land exceeding in value the statutory homestead does not select his homestead, and, without the concurrence of his wife, deeds enough of the land to encroach upon his homestead right, and the parcel deeded is afterward sold under an execution previously levied upon the whole land, his own grantee cannot resist an action of ejectment, brought by the execution purchaser, on the ground that the execution sale covered premises belonging to the homestead, or that the deed to himself was not signed by his grantor’s wife.</p> <p>A grantee cannot set up and rely upon a homestead right which his grantor had not made specific for his own benefit.</p> <p>The right of a wife and children to question a deed of the homestead will not be affected by the result of a suit in ejectment in which the wife is not made a party nor the children represented. .</p>

<p>Appeal from Ingham. (Gridley, J.)</p> <p>Redemption bill. Defendant appeals.</p>

<p>Error to Lenawee. (Steere, J.)</p> <p>Trespass. Defendants bring error.</p>

<p>Oonfraet of employment — Damages— Want of diligence — Estoppel.</p> <p>A contract of employment as traveling salesman for one year witli a monthly allowance for traveling expenses and a yearly salary to be raised or lowered from a fixed snm according as sales exceeded or fell below a certain amount, was held to be sufficiently made out from correspondence in which the plaintiff was engaged on a two months’ trial, to be employed for a year, if satisfactory, on the terms stated, —and from other correspondence, in wb i ch, before the period of probation expired, he desired immediate employment, his letter being-acknowledged by a clerk of the other party in the latter’s name, and he being subsequently recognized and dealt with in various letters, as employed on the terms mentioned. ' ~</p> <p>One who is under a contract of employment for a year and whose engagement is practically terminated by his employer within that , period is entitled to such damages as will make him good for the loss of his situation, if he has fully performed his obligation and stands ready to continue to do so.</p> <p>In an action upon a contract of employment as a salesman at an annual salary of $800 upon an estimate of $15,000 worth of goods sold, it is error, in charging the jury, to assume without evidence, that it was expected that the annual sales would reach $15,000, the parties themselves having practically construed the contract by making and receiving payments in the ratio of these sums on the amount of actual sales.</p> <p>Where a salesman receives a fixed sum for traveling expenses, and a salary dependent upon the amount of his sales, it is admissible, in an action upon his contract of employment, to show his lack of diligence in reduction or bar of damages.</p> <p>Expressions of confidence in an employee, based on his own reports, may be shown in an action by him upon his contract of employment, but they do not estop the employer from showing his default, or explaining what he did or neglected.</p>

(Mills, J.) Bill to establish lien. The bill alleges that one Augustus D. Griswold and wife gave a warranty deed of the premises in suit to the defendant James G. Boyes, who then entered into and still holds peaceable possession, and who, to secure a portion of the purchase price, gave Griswold three notes, secured by a mortgage which Griswold assigned to George Jerome, who, in turn, assigned it to complainant.

<p>Levy of execution — Oppressive acts of sheriff’s deputy.</p> <p>A sheriff's officer must so execute writs intrusted to him as to do as little needless mischief to respondent debtors as possible; and where it is' important to the debtor’s business to have the benefit of his exemp-' tions, the officer is bound to act promptly in setting them off to him.</p> <p>In levying execution an officer has no right to seize and hold the whole of a debtor’s property to satisfy a debt, which, even if all exemptions were allowed, would be more than secured by the remainder; and if' he thereby preclude the debtor from engaging in his customary business, and even from keeping house, his action is oppressive and unjustifiable.</p> <p>It seems that on execution defendant should lose no rights by failing to demand, the return of goods taken by an officer, if the officer makes . such a demand impracticable by absenting himself.</p>

<p>Garnislment — Strict construction — DM to joint defendants.</p> <p>Garnishees cannot be held in a suit against joint defendants if their disclosure shows an indebtedness to only a part of the defendants.</p> <p>Garnishment proceedings are purely statutory, and cannot be extended by construction.</p> <p>Relief cannot be given on review to a party who does not complain of a judgment against him.</p> <p>The garnishment law does not contemplate proceedings to determine the relative rights of several joint defendants where some of them might be entitled to contribution from the others for an excess of property taken beyond their shares.</p>

<p>Error to "Wayne. (Jennison, J.)</p> <p>Trover. Plaintiff brings error.</p>

<p>Error to Wayne. (Chambers, J.)</p> <p>Replevin. Defendant brings error.</p>

<p>GarnüMient— Estoppel — Instn'uetiom.</p> <p>The respondent in a criminal case deposited with his lawyer some money belonging to Ms employer, to secure bail. The lawyer turned the money over to the bondsman, and the latter, being afterward garnished by creditors of the respondent, paid out the money to satisfy their claims though he had known, when garnished, that it was the money of the employer. Held that he should have so disclosed, and that in a suit against him by the employer, as for money had to plaintiff’s use, he could not set up the application of the money in payment of the claims of the creditors.</p> <p>An instruction will not be deemed erroneous in the absence from the record of a material exhibit on which it is based.</p>

<p>Justice's jurisdiction — Trespass-Obstruction of easement|.</p> <p>Trespass quare clausum, consisting in allowing logs to accumulate upon the premises of another in consequence of the closing up of a navigable stream, upon which they were floating, is not an action for the obstruction of a public easement within the meaning' of Comp. L. § 5250, and is cognizable by a justice of the peace.</p> <p>Recovery at law cannot be grounded upon a fact not counted upon as a ground of recovery in the declaration.</p>

<p>Bjeclimnt — Presumption of unbroken title — Notice to quit</p> <p>A plaintiff in ejectment who shows title running back for a long time through aseries of conveyances from persons in possession as owners, is presumed to hold by direct chain of title from the government unless defendants claim under some one who is in a position to disturb that presumption.</p> <p>A tenant in possession who has attorned to a stranger to the title is not entitled to notice to quit.</p> <p>A purchaser on foreclosure ousted a tenant, after the foreclosure became absolute, but took an attornment and afterward allowed the tenant to attorn to a person who claimed title under a tax-lease. Meanwhile the former owner had obtained a decree on a bill to redeem, and the purchaser had released to her. Held that the tenant and the person to whom the second attornment had been made, became trespassers.</p>

<p>Error to Barry. (Hooker, J.)</p> <p>Ejectment. Defendants bring error.</p>

<p>Action on replevin bond — IAcMily of sureties.</p> <p>A statutory replevin bond, though conditioned on the prosecution of the suit to effect and the return of the property in case judgment is rendered for defendant, (Comp. L. § 6735) supports an action only when the writ of return, or other execution issued in defendant’s favor, has been returned unsatisfied (id. § 6764); and the fact that the replevin suit abated does not, under the statute, give the right to sue on the bond, even though the plaintiff retains the property. The surety’s liability is fixed by the statute and cannot be enlarged.</p> <p>The existence of a replevin bond does not preclude the defendant in replevin from resorting to other remedies against the plaintiff, if the latter wrongfully retains the goods taken on the writ.</p>

<p>Error to "Wayne. (Jennison, J.)</p> <p>Trover. Defendants bring error.</p>

<p> Foreclosure of mortgage Try trustee. </p> <p>A woman deeded land to one of her sons and took his bond, drawn to her weak-minded daughter, for the purpose of providing for the latter. It was afterward arranged that the grantee should give his mortgage to another brother to secure the bond. The grantee afterwards sold the land, or the equity of redemption therein, to still another brother, and the holder of the mortgage filed a bill against them to foreclose it. Held that the transaction made complainant a trustee for the benefit of his sister, and that, in a proceeding to foreclose, the holder of the equity of redemption could not claim that in this suit the fund should be secured for the sister’s benefit, or that it should be enjoined from passing into complainant’s control.</p>

<p>Error to Mackinac. (Steere, J.)</p> <p>Assumpsit. Defendants bring error.</p>

<p> Pool-selling not punishable as a lottery. </p> <p>Pool-selling is not punishable as the offence of maintaining “ a lottery for disposing of money,” within the meaning of a municipal ordinance against keeping any “lottery, policy, bucket-shop, board of trade or any other scheme or place for drawing or disposing of money, wheat or other property within the city.”</p>

<p>Error to Muskegon. (Russell, J.)</p> <p>Embezzlement. Respondent was convicted.</p>

<p>Exceptions from the Recorder’s Court of Detroit. (Swift, J.)</p> <p>Larceny from the person.</p>

<p> General verdict and special findings. </p> <p>A man was prosecuted for neglect to support his wife, and a general verdict of guilty was rendered. His counsel submitted a request for a special finding as to whether the prisoner was then and for about four months last past had been well and sufficiently supporting his wife according to his means and each juror answered “Yes.” Held that under the special finding there should have been no judgment on the general verdict, and that the respondent should be discharged.</p>

<p>Exemption of pa/i'tnerslvip property from, execution — Chattel mortgages.</p> <p>Creditors have no rights as against property exempt from execution; and the officer making levy is as much hound to respect such exemption, where the property is that of a partnership, as in other cases.</p> <p>A chattel mortgage, given in good faith, is void for want of immediate possession of the goods only where rights have arisen in consequence, or injury resulted, in the interval before possession is given. Wallen v. Eossman 45 Mich. 333, distinguished.</p>

<p>Appeal from Lenawee. (Steere, J.)</p> <p>Bill to construe will. Claimants appeal.</p>

Cross-appeals from the Superior Court of Detroit. (Chip-man, J.) Bill to close up claims made by defendant against complainant. Both parties appeal.

<p>Mnal orders — Pa/i'tnershvp assets.</p> <p>Any order in equity is final which gives all the relief that is prayed for in the hill.</p> <p>The representative of a deceased partner in a firm of hotel-keepers who have been occupying the hotel under a lease cannot, after the expiration of the lease, restrain the survivor from separating the furniture which belonged to the partnership from the rest of the hotel property on the ground that its value depends upon its being used in connection with the good-will of the property and that such separation would cause irreparable injury to the interest of decedent’s estate in the partnership assets.</p>

<p>Appeal from Wayne. (Chambers, J.)</p> <p>Bill to define interests and for partition. Defendant Langley appeals.</p>

<p>Error to Wayne. (Chambers, J.)</p> <p>Assrauesrr. Defendant brings error.</p>

<p>iSpecific pcrforma/nce — jBedempiumfrom mortgage after foreclosure.</p> <p>A woman of small business experience bought land and gave back a purchase-money mortgage for part of the price. An adverse claim arose and the vendor did not protect her. She did not pay her mortgage when it was due, and the vendor foreclosed, agreeing, however, by parol, that she might make payment afterwards. She was left in possession, cultivating and improving the land. Held that, on her bill for specific performance of the parol agreement, she was entitled, to a decree, which would he the game, in effect, as permitting her to redeem.</p> <p>A complainant is not'necessarily estopped from seeking a relief that is inconsistent with positions theretofore taken, if it is defendant’s fault that he has been practically forced to take them.</p>

<p>Appeal from -Cass. (A. J. Smith, J.)</p> <p>Divorce bill. Complainant appeals.</p>

<p>Error to Oass. (A. J. Smith, J.)</p> <p>Case. Defendant bi’ings error.</p>

<p>Error to Kent. (Montgomery, J.)</p> <p>Appeal from disallowance of claim against estate. Claimant brings error.</p>

<p>Justice’s court — Bight to cvppea/r as attorney — Beoiew on cen'twra/H.</p> <p>On review of a justice’s judgment on certiorari the circuit court is confined to the ground of error set up in the affidavit for the writ of certiorari.</p> <p>One cannot prove his authority to appear as attorney for a party in a suit before a justice by producing a letter from a third person asldng him to appear; nor will the fact that the third person is himself a lawyer he sufficient to give authority if it does not distinctly appear that he is attorney for the party.</p> <p>The right to object to an appearance as attorney in justice’s court for want of authority to do so, is not waived by having demanded a plea before the question of adjournment be considered. On certiorari to a justice, assigning an error of law, the case cannot be disposed of on the merits as it might be on appeal.</p>

<p>Appeals — Secui'ity for costs — Proceedings to abate nuisamces.</p> <p>An appeal in equity cannot be taken to the Supreme Court unless some one appears, on the record, as responsible to the adverse party for costs.</p> <p>The Attorney General has no authority, unless in extraordinary cases, to proceed at his own instance as relator for the State, to sue. a private person by information in chancery to abate a mill-dam on the ground of its being hurtful to health; such a case should be prosecuted, if at all, by the public, and submitted to a jury.</p>

<p>With — ‘Testamentary capacity — Opinion evidence — BUI of exceptions — Costs of record.</p> <p>A probate order adjudging a man “incompetent to have tbe care of bis property” and appointing a guardian for him, is not prima facie evidence that be lacks testamentary capacity; nor does it become so by tbe recital in tbe order that he is insane, if tbe petition for guardianship does not put bis sanity in issue. But such an order may be put in evidence as bearing on his condition.</p> <p>One who has capacity to make a contract is competent to make a will.</p> <p>A non-professional witness, in giving bis opinion as to a person’s sanity, can speak only from personal observation; but bis opinion is not admissible in evidence if be does not, as far as possible, explain to tbe jury the grounds for it.</p> <p>In examining a non-professional witness, as to a person’s capacity to execute a will, it seems to be improper to put a hypothetical question containing a confusing number of elements as to the various items of bis property and tbe members of bis family, and then require tbe witness to arrive at a result by comparing the testator’s appearance and conversation, as he had described it to the jury, with what tlie witness had known of him formerly.</p> <p>Delusions as to “Greenbacks ” or to the effect that one is holding or running for office, or that his wife courted him, or had maltreated him after marriage, do not necessarily render a man incompetent to make a will if they do not influence its provisions.</p> <p>A will is not to be set aside merely because its maker was weak or sometimes foolish or lacked the average mental capacity of his neighbors, or did not dispose of his property as others, who knew nothing of his reasons, might think he ought to have done.</p> <p>The preparation of a bill of exceptions by siynply tacking a heading and a conclusion to the stenographer’s notes of the testimony is rebuked.</p> <p>Where a bill of exceptions was three times as large as it need have been to present all the questions involved and appellant prevailed, he was allowed, in taxing costs, to include only one-third of the expense of the record.</p>

<p>Construction of wills — CMldi'en “surviving” life-estate.</p> <p>A testator gave Ms widow an estate for life in Ms entire property, and added a residuary clause providing that on her decease it should be equally divided between Ms “ surviving children.” Held, that under the rules of construction that have always prevailed in Michigan, the will vested an estate in all the children surviving at his death, and that the heirs-at-law of any child who died before the widow were entitled to the share of their ancestor unless the will indicated otherwise.</p> <p>Terms used in wills are generally to be construed as having the meaning which has become generally accepted, but they are also to be construed in connection with the rest of the will.</p>

<p>Beplevin — Chattels under hire — Special finding.</p> <p>A. special finding involving the conclusion that a certain person is holding chattels under an unexpired lease, is inconsistent with a general verdict for the lessor in an action of replevin brought by him against an officer who has levied on the chattels under an execution against the lessee, as it negatives the plaintiff's possessory right.</p>

<p>Judicial notice — Inchoate title to public lands — Ejectment.</p> <p>Judicial notice may be taken of the general course of business in the Federal land-office, in that a purchase commonly precedes the issue of a patent a good while.</p> <p>A patent to public lands relates back to the time when they were purchased, and gives the patentee title as of that date.</p> <p>Comp. L. § 5952 makes a certificate of the purchase of public land sufficient evidence of the purchaser’s right to the land to entitle him to maintain ejectment for it. Held that where a man gave a deed of bargain and sale, though without covenants, but reciting that he had on the same day, entered the land at the Federal land-office, persons claiming under such deed could maintain ejectment against others to whom he had sold after taking out his patent.</p> <p>A man gave a deed of bargain and sale without covenants but reciting that at its date he had entered the land as described in a certain certificate of purchase. He afterwards obtained a patent. Held that the recitals in the deed and patent were evidence as against all the world that conveyance had been made before the patent issued.</p> <p>The omission of plaintiff in ejectment, until after the case is submitted, to describe his title as required by Comp. L., § 6213, may be amended after judgment; but if he has shown an undoubted title in fee the amendment is merely formal and may still be made when the case on affirmance is remanded for farther proceedings.</p> <p>Costs were withheld on affirmance of a judgment for plaintiff in ejectment where the plaintiff, while proving full title, had omitted to set forth his title in his declaration as required by Comp. L., § 6213.</p>

<p>Specific performance — Pleading—Averments of payment to defendant.</p> <p>A bill for the specific performance of a parol agreement to convey land sufficiently avers payment to the defendant if it avers payment to a third person, under the arrangement, and the proofs show that it was so made by defendant’s direction and for his benefit.</p> <p>The disposition of an appellate court in chancery to be governed by the conclusions of a trial judge who has heard the witnesses examined in open court, is fortified where the record tends to show that the demeanor of the witnesses was of some importance in determining what reliance should be placed upon their'statements.</p>

<p>Mechanic’s lien — Conclusions on testimony taken in open court.</p> <p>In reviewing statutory proceedings in chancery to enforce a mechanic’s lien in which the complainant obtained a verdict, the appellate court will not be disposed to disturb the result where the case depends mainly on the weight of oral testimony, and the testimony is irreconcilably opposed, and the trial court saw the witnesses examined.</p>

<p>Eminent domain — Bights of action — Condemnation of reversionary interests and of intangible rights attaching thereto.</p> <p>A common law right of action is property, and as such is within the rules of constitutional protection.</p> <p>Where land has heen injured by a railroad company that has gone upon it under void condemnation proceedings, the owner’s right to recover damages is unaffected by his having sold it to a third person, for the depreciation would have been taken into account in fixing the price.</p> <p>The general railroad law permits a railroad company to begin new proceedings for the condemnation of land where proceedings already taken have failed. Held, that where the land is meanwhile occupied by a tenant, the landlord’s right of action against the company for injury done to the premises under the void proceedings goes with the land and attaches only to his reversionary interest, and it is condemned and appropriated therewith and disappears when subsequent valid proceedings are taken and compensation made.</p> <p>Condemnation proceedings usually apply to tangible property, but it is no objection to them that intangible rights are necessarily taken if remuneration is made therefor.</p>

<p>Error to Ingham. (G-ridley, J.)</p> <p>Assumpset. Defendant brings error.</p>

<p>Executor*s liability as residuary legatee — Sureties—Scire facias — Special findings — Extension of time for payment of legacies — Joint action for use of parties — Verdict.</p> <p>The objection that instead of a suit on a bond proceedings should have been taken by scire facias on the footing of a former judgment for the penalty of the same bond, is disregarded, on review, if not properly raised by the pleadings.</p> <p>The purpose of having special findings is to know what the rights of the parties are, and to have them spread upon the records.</p> <p>Requests for special findings cannot be refused on the ground that the parties had agreed on the facts in the presence of the jury; the facts must be set forth on the record, and until they are they cannot be regarded as settled.</p> <p>An executor’s bond as residuary legatee ends the ordinary course of administration, and the debts and legacies become personal charges against the executor.</p> <p>The probate court cannot extend the time within which a residuary legatee, who is also executor, is required by the will to pay legacies.</p> <p>A surety upon the bond of an executor who is also residuary legatee, is released by the act of a legatee who, without the sureties’ assent or procurement, accepts the executor’s note for the amount of the legacy after the time limited by the will for paying it has expired.</p> <p>An infant legatee’s acceptance of the executor’s note will not extend the time for payment of the legacy unless the act is somehow ratified after becoming of age; and if by that time the note is past due, its mere retention will not extend the time or give it the character of payment.</p> <p>Where the interests of different persons are not joint, an action for their use and benefit ought not tobe brought for them jointly; and where so brought their interests ought to be kept separate in any verdict for either.</p>

<p>Case made after judgment from Kent. (Montgomery, J.)</p> <p>Case. Defendant had judgment.</p>

<p>Error to Marquette. (Grant, J.)</p> <p>Replevin. Defendant brings error.</p>

<p>Error to St. Clair. (Stevens, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>Appeal from Eaton. (Hooker, J.)</p> <p>Divorce bill. Complainant appeals.</p>

<p>Seplmm — Personal sermee without legy.</p> <p>Where defendant in replevin is personally served but nothing is taken on the writ, the action becomes merely personal; and by appearing and joining issue and allowing the case to be adjourned from time to time without objection, he waives the right to have the writ set aside for defects in the affidavit and bond.</p>

<p>Error to Iosco. (Tuttle, J.)</p> <p>Case. Defendant brings error.</p>

<p>Appeal fromtbe Superior Court of Detroit. (Chipman, J.)</p> <p>Injunction. Complainants appeal.</p>

<p>Might of way— Condemnation proceedings — Damages—Admission of evidence — Conclusions of fact — Averment of title.</p> <p>Where proceedings are taken to condemn a portion of a city lot for a railroad right of way, and the lot is part of a homestead lying on both sides of an alley, the award of damages cannot be confined to the land actually taken, but must cover such actual injury as is done to the entire homestead, including the easement in the alley.</p> <p>Commissioners in proceedings to condemn land for railway uses are judges of the law as well as of the facts.</p> <p>An appeal from the judgment of a probate court in confirming the award . of commissioners in proceedings to condemn land for railway purposes brings before the Supreme Court the entire case as presented to the judge of probate.</p> <p>Proceedings to condemn land for railway iises are special and unlike ordinary trials at law; the inquest may be conducted by commissioners or a jury without the aid of counsel, so that the practice must be simple and a large discretion allowed in admitting or rejecting testimony.</p> <p>Rulings on the admission of testimony in proceedings by commissioners or a jury for the condemnation of lands for railroads, will not be reviewed on appeal to the Supreme Court unless they have done substantial injustice.</p> <p>The finding in proceedings to condemn land that the taking thereof is necessary is conclusive if there is evidence to support it.</p> <p>The award of damages in proceedings to condemn land is conclusive unless'the authorities making it have not misconceived the law and have fully considered all the essential elements of the injury done to the land-holder.</p> <p>The title of a land-holder cannot be litigated in proceedings before commissioners to condemn the land for railway purposes; and his averment, in answer to the petition for the condemnation of a particular lot, that this and certain other specified lots, lying together, constituted his homestead and that he occupied them as such, was held sufficient to raise the question of injury to the contiguous lots.</p>

<p>Executionfor deficiency onforecloswe — Notice—Ladies—Bill of review.</p> <p>Notice of the filing of a petition for an'execution to enforce collection of a deficiency on foreclosure, must be given to the defendant, as if the proceeding were a new suit.</p> <p>Laches in moving to set aside proceedings of which notice should be given cannot be imputed to the moving party if he has not been notified.</p> <p>Proceedings to collect a deficiency on foreclosure are purely statutory, and a petition to set them aside for want of notice is permissible without filing a bill of review.</p>

<p>Error to Kent. (Montgomery, J.)</p> <p>Case. Defendant brings error.</p>

<p>Trover for ore sold from a mine whereon execution rests — Trespass by relator — Waste.</p> <p>Comp. L. §§ 4657-8 allows fifteen months for redeeming from an execution sale of real estate, but permits the execution purchaser to sue for waste committed meanwhile and to recover for property wrong-fully taken therefrom. Execution was levied on a mine, but defendant in possession continued mining during the period allowed for-redemption, and within the first six months sold a quantity of the ore amounting to less than 2000 tons. The execution purchaser, on receiving a deed absolute, brought trover for this ore against the-one who had bought it, and alleged that the execution defendant had taken out 40,000 tons to the injury of the freehold. Held that, this allegation was not sufficient to sustain the action, and that plaintiff could not maintain it without at least alleging and showing that the removal of the specific quantity sued for, constituted such injury; also, that he must somehow connect the purchaser of the ore-with the injury by showing that he had taken part in some act of wrong, or that he was chargeable with notice of facts that would have divested the execution defendant of his prima facie right to-sell.</p> <p>One cannot be made a trespasser by relation, especially if the act supposed to make him so is that of a person who is neither his agent nor under his control.</p> <p>Where execution is levied on a mine the judgment debtor is entitled,’ during the period allowed for redemption, to continue working it in-a reasonable and prudent manner , as measured by the customary working before the execution sale; and he can dispose of the product. But improper, excessive or wasteful mining can be restrained, and the person responsible for it be held liable in damages.</p>

<p>Religious societies — Mortgage of clmrch property by trustees — Ratification— Record proof — .Parol evidence.</p> <p>Comp. L. § 3062 gives church trustees “authority under the direction of the society, to sell and convey, mortgage or lease any real estate belonging to such society” providing “no such sale or conveyance” shall be made unless the assent of two-thirds of those present at any meeting specially called for the purpose should be obtained. Held that this does not require a two-thirds vote as a condition to a mortgage.</p> <p>Comp. L. § 3065 provides that any two of the trustees of a religious society may lawfully call a meeting of the trustees, a majority of whom, When la/mfully convened, can do anything which the trustees are authorized to do. Held that when two out of three trustees have come together without notice to any one else, and unite in executing a mortgage on the church property, they are lawfully convened for that purpose.</p> <p>A religious society that has power to direct its trustees to take action, and can assent thereto by a majority of its members, can ratify action which the trustees have taken without any preliminary direction or assent, and if no rights have intervened such ratification relates to the date of the act.</p> <p>A religious society’s ratification of an act of its trustees need not be by a direct proceeding with an express intent to ratify, but may be effected indirectly .and by acts of recognition or acquiescence, or acts inconsistent with repudiation or disapproval, as by taking advantage of the act, permitting action to be taken on it without objection, or making payments in pursuance of it.</p> <p>A society that is sued upon its own obligations cannot take advantage of its own neglect to keep records, to object that record proof of its proceedings is not produced to establish its liability. The party bringing suit can resort to sucb evidence as is obtainable when the party sued has put it out of his power to produce record evidence.</p> <p>Proof that the action of the trustees of a. religious society in giving a mortgage has been ratified by the society is admissible under a foreclosure bill alleging that the society gave the mortgage.</p> <p>Where the trustees of a religious society have mortgaged its property without signing the mortgage in proper form, parol evidence is admissible to charge the society as the principal in the mortgage.</p>

<p>Error to Wayne. (Full Court.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>Error to Mecosta. (Fuller, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>JPoreclosure by gua/rdian — Mistake in description of land, — Costs.</p> <p>Proof of guardianship is not necessary to authorize the guardian to bring suit to foreclose a mortgage assigned to him by name as guardian.</p> <p>The holder of a second mortgage began a foreclosure suit without making the prior incumbrancer a party. Pending foreclosure the first mortgage was assigned, and the assignee foreclosed at law and bid in the premises. Part of the description was left out of the foreclosure notice and omitted also from the sheriff’s deed by a mistake for which the assignee was not to blame. Afterwards the holder of the second mortgage perfected his foreclosure, and he also bid in the premises. Ko new rights arose meanwhile. Held, on a bill by theassignee, that the statutory foreclosure might be set aside and a new foreclosure allowed in equity.</p> <p>A mortgage for $3000 covering various property contained a stipulation that when $2000 should be paid the mortgagee was to release a certain portion of the premises mortgaged. One thousand dollars was paid and nearly all the rest of the premises was released, but it after-wards became necessary to foreclose. Held that the foreclosure could not be limited to $1000, as the security on the premises that had not been released had not been confined to $2000, nor had the mortgage provided for a release in any case in which it would be necessary to foreclose.</p> <p>Costs on granting a new foreclosure should be given to and not against the opposing party where the occasion for allowing the foreclosure arose out of a mistake in the complainant’s proceedings.</p>

<p>Appeal from Marquette. (Grant, J.)</p> <p>Bill to obtain discharge of mortgage, etc. Defendant appeals.</p>

<p>Error to the Superior Court of Detroit. (Chipman, J.)</p> <p>Case. Defendant Taylor brings error.</p>

<p> Notice of sale of banhrvpt’s real estate by assignee. </p> <p>Notice must be given to adverse claimants before an assignee in bankruptcy can make a valid sale of real property as belonging to the bankrupt’s estate. U. S. Rev. Stat. § 5063.</p> <p>The power of an assignee in bankruptcy to sell and convey the bankrupt’s estate depends wholly upon statute, and a sale in any other manner than as therein prescribed would be a nullity.</p> <p>Whether, under the bankrupt law (U. S. Rev. Stat. § 5057) which requires suits between assignees and adverse claimants to be brought within two years from the time when the cause of action accrued, a person claiming as purchaser at an assignee’s sale can bring such action where the assignee himself has allowed two years to pass without doing so after the adverse claimant’s assertion of title — Q.</p>

<p> Indemnity to deputy for consequences of acts done under specific instructions. </p> <p>Where judgment in trover has been obtained against a deputy marshal for goods which he has taken while acting under specific instructions from the marshal and in reliance on the latter’s verbal promise to indemnify him, he can maintain a bill against the marshal to obtain protection against such judgment by compelling the latter to indemnify or pay him; and if he dies pending suit his administrator can carry the suit to a decree for the protection of the estate.</p> <p>A deputy marshal acting under specific instructions in making a levy cannot be put as between him and his principal on the footing of a joint wrong-doer.</p> <p>A federal court has no jurisdiction to proceed to judgment if plaintiff and all defendants served with process are residents of another state and the only defendant living in the state where suit is brought is not served.</p>

<p>Contract of sale — Stipulation, that goods must be satisfactory— Wa/rramty— Notice of refusal to accept goods sold.</p> <p>A contract for the sale of a machine may be made to include a stipulation that the contract shall be of no effect unless the machine works to the purchaser’s satisfaction.</p> <p>A stipulation in a contract of sale that it shall be of no effect unless the goods are satisfactory is to be construed, according to the circumstances, as reserving to the purchaser the absolute right to reject them without giving any reason, or as binding him to decide on fair and reasonable grounds. In one case his decision cannot be reviewed^ but it can be in the other.</p> <p>Where a contract to buy a harvesting machine rested in an order for it given with great reluctance on the solicitation of the vendor’s agent, a warranty by the vendor and a stipulation exacted by the purchaser that the contract should be of no effect unless the machine worked to his satisfaction, it was held that the purchaser had reserved the" absolute right to reject the machine and that his reasons for doing so could not^be.investigated.</p> <p>A warranty of goods sold is enough to protect a contract purchaser who buys on condition that they prove satisfactory, if the fulfillment of such condition is to be a question for a jury.</p> <p>Where a contract for the sale of a machine includes a provision that " the purchaser shall be allowed-days use to give the machine a fair trial, and if it should not work well immediate notice must be given,” etc., tbe period allowed does not begin to ran until tbe machine is entirely out of the vendor’s possession; the purchaser is entitled to the full period named in which to try it, and if no period is named, to a reasonable time before giving notice; and the requirement of immediate notice must be reasonably construed in view of all the circumstances, such as business engagements, distance and facility of communication.</p> <p>The measure of damages in an action on a contract is affected by the form of the claim asserted.</p>

<p>Appeal from Berrien. (A. J. Smith, J.)</p> <p>Specific performance. Defendants appeal.</p>

<p> Bill to establish title. </p> <p>The officers of an unincorporated mining association gave an Indian, who had aided in locating the mine, a certificate dated in 1846, which entitled him to an interest in the location. 'A corporation was organized from this company and chartered in 1848, and was succeeded in 1849 by another corporation which refused to recognize this claim when presented many years after the Indian’s death, by a person to whom the Indian’s daughter had assigned it. The Indian died about 1862, and the certificate was assigned in 1879. This daughter was the child of the second of three women who had lived with the Indian as his wives after the uncivilized manner of the tribe; and it appeared that when the claim was presented there was living a son of another daughter born to the Indian in his previous relation, though there was no showing that this son was born in wedlock. Eeld that a bill filed by the assignee to enforce the claim should be dismissed.</p> <p>Cooley, J. holding that the assignee had not made out an exclusive title by descent, and that the claim was barred by laches.</p> <p>Graves, C. J. concurring in the result.</p> <p>Campbell, J. dissenting.</p>

<p>Questions of fact — Scintilla, of evidence — Existence of contract — Witness— Recollection refreshed by MU of particula/i's.</p> <p>Where defendant in an action of assumpsit pleads the general issue and gives notice that he will claim recoupment of damages for breach of contract, the pleadings put the existence of the contract in issue; ' and as a verdict for plaintiff in the full amount of damages claimed does not necessarily decide the fact of its existence as against defendant, the appellate court can look into the case to determine whether there was any evidence of it to. go to the jury.</p> <p>One who was sued for workand labor done on his saw-mill claimed recoupment for the breach by plaintiff of an alleged contract of warranty of a certain sawdust elevator to be put into the mill. It appeared that defendant had suggested to plaintiff the use of a Garland chain, and plaintiff had replied that he could put in a bevel gear that would work better; that be proceeded with the manufacture of the shafting, pulleys and gearing and other machinery pertaining to the elevator, but delivered it at his own shop to defendant who put it up himself, though he repeatedly warned plaintiff that if it did not work well plaintiff would be responsible. Held that this did not tend to prove the contract alleged in the claim of recoupment.</p> <p>A plaintiff testifying in his own behalf can refresh his recollection, where he knows the facts, by reading from his bill of particulars when that is a duplicate of the account rendered, and on which he sues, even though it was copied by his clerk from entries in his book as to which he cannot say, without seeing them, whether or not he made them all himself.</p>

<p> Action for seduction by the mctim. </p> <p>Comp. L. §§ 6195-7 are enabling and not restrictive in giving the right to-sue for seduction to representatives of the injured woman ; and they do not deprive her of her right as it existed at the common law, or otherwise, to sue in her own name, and for her own benefit.</p>

<p>Error to Marquette. (G-rant, J.)</p> <p>Ejectment. Plaintiffs bring error.</p>

<p> Widow’s liability for family groceries bought in her husband’s lifetime. </p> <p>A grocer sued a widow for an unpaid balance of an account for family-groceries the items of which were charged in a pass-book marked with the name of her husbaud. The plaintiff introduced testimony tending to show that defendant owned a separate estate; that the goods were procured and sold on her individual.credit, and that she had repeatedly promised payment. Defendant disputed this and the court instructed the jury that if it was so, plaintiff was entitled to recover ; otherwise not. Held that the question involved was a question of fact; that the evidence was relevant, and that defendant could not complain of the instruction.</p>

<p>Appeal from Berrien. (A. J. Smith, J.)</p> <p>Foreclosure bill. Defendant appeals.</p>

<p>Appeal from Genesee. (Newton, J.)</p> <p>Bill to set aside drain commissioner’s proceedings.</p>

<p>Error to Wayne. (Jennison, J.)</p> <p>Assumpsit. Plaintiffs bring error.</p>

<p>Attorney and client — Privileged commimications — Conversations—Claim against a Tmsba/nd’s estate.</p> <p>The rule which excludes evidence as to communications between client and counsel establishes a privilege which belongs to the client and which he may waive ; it does not prevent him from testifying to the counsel’s advice, or the counsel’s corroborating his testimony.</p> <p>A woman basing'a claim against her husband’s estate upon a note given by him can show, as bearing upon the fact that she held it before her husband’s death, that she had tried to sell it during his life-time.</p> <p>A witness who has been allowed to testify as to part of a conversation between himself and a party to the case, should generally be allowed, on re-examination, to give the whole conversation as to the matter in evidence.</p>

<p>Neiospaper libel — Evidence in justification — -Gonvm'sations—Betractions by other papers — Use of the innuendo — Injury to reputation — Expert testimony — Publication of judicial proceedings — Damages.</p> <p>A person charged with seduction sued for libel. Held admissible to show, as bearing upon the probability of an alleged arrangement between him and the girl's mother, that she and her mother were paupers and in extreme poverty and dependence, (i.)</p> <p>Where sworn statements, made before a justice, apparently furnish legal cause for an arrest, but the justice does not issue a warrant, it is proper, in an action for libel based on a report of the facts stated, to ask him why he did not issue it. (ii.)</p> <p>In a trial for libel based on a charge of seduction it was not clearly error to exclude the fact that the girl seduced committed suicide just as the trial was about to take place, and her relations with plaintiff be investigated, (iii.)</p> <p>The substance or effect of a conversation may properly be given in evidence even when the witness cannot remember the exact conversation itself : and the question in how many conversations between the witness and one of the parties a certain subject involved was referred to, is a proper preliminary to an inquiry into the details of the conversations, (iv.)</p> <p>In an action for newspaper libel the editor, on testifying that on hearing that other papers which had published it had retracted he had caused inquiries to be made as to the accuracy of the statements it embodied, should also have been allowed to testify what the result of those inquiries was. (v.)</p> <p>One who sues for libel puts his previous reputation in issue, and defendant can show that even if the charge was false it probably did not injure him. (vi.)</p> <p>The innuendo, in a declaration for libel, is to explain doubtful allusions in the publication complained of, and is needless when the matter published is itself disgraceful, and is in clear and unambiguous terms, (vi.)</p> <p>Where a publication complained of in its entirety as a libel charged the several offenses of seduction, adultery and abortion, which, while distinct in themselves, were parts of a single and continuous transaction, it was held that the plaintiff could not, by so using the innuendo as to confine his cause of action to the charge of abortion alone, limit the defendants’ right to show that plaintiff’s previous reputation was such that nothing in the publication could have injured it. (vi.)</p> <p>If a plaintiff in a libel suit counts upon a publication as an entirety, he cannot, by confining the innuendo to a portion of it only, limit the defendants’ right to justify it as an entirety and show that he had no reputation that would be injured by any part of it. (vi.)</p> <p>In showing that the reputation of the plaintiff in a libel suit was .such that the charge could not have injured him, the defense is properly confined to the testimony of witnesses who could testify that they knew plaintiff’s reputation before the charge was published, (vii.)</p> <p>Reputation is what others hear of one’s character, and any one can testify to reputation who knows what it was at the time in question. But no one can testify whose knowledge is subsequent and consists of what he has been told the reputation was; for this is hearsay, (vii.)</p> <p>A physician testifying as an expert that he has discovered no traces of an abortion in a certain ease, may properly be asked whether such traces would exist under certain circumstances, even though no proof of such circumstances has been made, (viii.)</p> <p>Where statements complained of as libelous were published in several , papers besides the one against which suit was brought, and then retracted, it was error to allow the plaintiff to show that the same correspondent gave the information to all the papers, when he was, in no sense, the general representative of any of them and neither was responsible for what he might do except in so far as it adopted his statements and published them, (ix.)</p> <p>The publication of judicial proceedings is not privileged to the extent of protecting statements made in connection therewith but drawn from other sources and without stating the judicial conclusion. (xj()</p> <p>An absolute charge of crime is not necessarily wanton; and even if not privileged, or if mitigating circumstances are not shown, it does not necessarily carry every element of damages known to the law; as, where the person charged with crime ignores a portion of the charge in basing a libel suit thereon, (xi.)</p>