Volume 51 — Michigan Reports

<p>Error to Osceola. (Judkins, J.)</p> <p>Troyer. Defendants bring error.</p>

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

(Judkins, J.) Assumpsit. Plaintiffs bring error. ‘Adjournment of a cause in justice’s court should be allowed where the affidavit therefor is sufficient: Annin v. Ohase 13 Johns. 462Mercer v. Lowell Bank 29 Mich. 248; it is error for a justice to try a • case without a jury in defendants’ absence and without his ■ consent after a venire is issued: Searing v. Wheedon 8 Johns. 460; McGrcm v. Sturgeon 29 Mich. 429.

■Error to the Superior Court of Detroit. (Chipman J.) Case. Plaintiff brings error. Where the justification of ;a libel is general, its truth must be proved in the sense charged in the declaration: Odger on Libel 169, 170; Townshend on Libel §§ 212, 215, 355, 361-9 ; Whittemore v. Weiss 33 Mich. 348; Bailey v. Kal. Pub.

Joseph. (Pealer, J.) INJUNCTION against obstructing streets. ' Complainants* appeaL Selling a lot as bounded on a street estops the grantor, and those claiming under him, from shutting it up so as to prevent the grantee’s use of it, whether it be a public street or not; the grantee has a right to make use of it “ for his own accommodation; ” there is no question of necessity about it: Smith v. Look 18 Mich. 56; White v. Smith 37 Mich. 291; Karrer y. Berry 44 Mich. 391; Child…

<p> Administration of personal estate of married woman dying intestate. </p> <p>Under tlie Statute of Distributions the husband of a woman who intestate is entitled to one-third of her personalty, or to one-half if she leave but one child or a father, mother, brothers, sisters or their issue. No individual, under any circumstances, takes any larger interest than the husband. Comp. L., § 4877, subd. 7.</p> <p>A husband has a right to be heard in regard to the appointment of an administrator for his wife’s estate if she leaves any personalty, as he-has an interest in the property.</p> <p>Persons interested in the property left by an intestate can always raise-the objection of any want of jurisdiction in the court which issues letters of administration ; but no one can be allowed to intervene-in the affairs of an estate unless he is authorized by law to do so, or is personally interested.</p> <p>Administration, when letters are issued on petition to the court, can only be granted to, or on application by, one or more of the persons specified in Comp. L., §4379, viz., creditors and distributees; and as-between these, only in this order, and under the contingency specified, of their being competent or willing to take the trust.</p> <p>A woman died intestate leaving a husband and four minor children. The husband was a creditor to her estate, and applied for letters of administration, but the probate court issued them to a person who-was neither a creditor nor a distributee, and did so on a petition-filed by the intestate’s brother and setting forth on its face that there were lawful distributees residing in the county and that the petitioner was not interested. Held that the petition negatived the jurisdiction, and that in the absence of reasons for disregarding the petition of the husband, the appointment was void as against him.</p>

<p>Mjeetment for mmigaged premises — Presumption of payment from lapse of time — Time of filing claim for improvements.</p> <p>The statute forbidding ejectment to be brought for mortgaged premises before foreclosure does not apply to mortgages given before its enactment, and under which the purchase made at the foreclosure sale passed the title to the purchaser, even though the foreclosure were ineffectual.</p> <p>A mortgage is not necessarily presumed paid, from lapse of time, if the mortgagee asserted his right to foreclose in due season, and there does not appear to be any adverse holding, under the mortgager; the purchaser must be understood as claiming under the sale ever since it was made.</p> <p>Defendant in ejectment filed a claim for improvements at the proper time but it was informal and insufficient. Two years after the suit was put at issue, but three years before it was brought to trial, he filed a claim that was in due form, and no motion was made to strike it from the files nor did plaintiff object that it was not served on him or brought to his notice. Held that as a motion to amend the first claim should have been allowed, if made, the second claim should have been treated as an amendment and evidence should have been received under it. Van Ben Brooks ®. Oorreon 48 Mich. 285 distinguished.</p>

(Speed, J.) Teovee, Plaintiff brings error. Held: that a certificate of deposit was in effect a promissory note, payable on demand, and due when issued, and that a person who took it nearly three years after it bore date did not ■acquire the rights of a bona fide holder as against the banker who issued it; this decision as to when a certificate becomes ■due has been a sui’prise and…

(Ckipman, J.) Case. Defendants bring error. A promise by a stock-bolder to pay a corporation debt is in every sense a promise to pay the debt of another; the corporation is in law a different person from any of its members: Ua/nson v. Donkersley 37 Mich. 186; Rust v. Bennett 39 Mich. 521;. where one partner makes false statements concerning tke-credit of his own firm, he is not liable unless the statements are in writing signed by him: De Vcmx v. Steinkeller 6 Bing.

<p>Specific performance. — Oha/ractm' of possession.</p> <p>A. man and his wife filed a hill against the wife’s father for the specific performance of an alleged oral agreement by him to convey them, the premises on which they lived when the dwelling house thereon should he ready for occupancy. The father claimed that complainants held as tenants merely. Held that the fact that taxes were assessed against the father was not conclusive evidence against complainants, and that the payment of such taxes by the son-in-law was a significant fact in their favor.</p>

(Stevens, J.) Assumpsit. Defendants bring error. In giving damages for loss of profits caused by the prevention •of the performance of a contract the profits must be ascertained as of the day of the breach of contract by the party ■so preventing its performance: Masterton v. Mayor 7 TTI11 61; Bittenhouse v. Mayor 25 Md. 336; Vischer v. Bail-road Go. 34 G-a. 536; unless the prevention is by the wrongful act of the defendant: Burrell v. AT.

(Speed, J.) Appeal from disallowance of claim against estate. The estate brings error.

<p>Error to Wayne. (Speed, J.)</p> <p>Assumpsit. Defendant brings error.</p>

(Chambers, J.) Assumpsit. Plaintiff brings error. Where a mortgage contains no express covenant for the payment of the amount, and no note or other separate instrument is giren to secure payment, the mortgagee’s remedy is confined to the land mentioned in the mortgage: Coinp. L. § 4207-8; Howe, v. Lemon 37 Mich. 164.

<p> Agreement to eonl/raei. </p> <p>.A written instrument, dated and signed, and in'these terms: “ We agree to sell one million feet of Norway in town 28 N. 8 E., on our lands * * and will make a contract with him, giving him the right to go on said lands and cut and remove said timber on payment for the same. The price of said Norway to be $1.50 per M. hoard measure,” etc., is not a contract hut merely an offer to make one on stated terms, and will not of itself support an action.</p>

<p>Error to Alpena. (Green, J.)</p> <p>Tbovee. Plaintiff brings error.</p>

(Emerick, J.) 'TROVER. Defendants bring error. Formal objections are not considered when raised for the first time in the appellate court: Matson v. Melchor 42 Mich. 479.

(Cage, J.) Assumpsit. Defendant brings error. Notice from the-bhyer to the vendor that the goods are held subject to the latter’s order, is unnecessary if he notifies him that they do not correspond to the contract of sale and that he refuses to take them: Hcurgous v. Stone 1 Seld. 86; Kimball c&g. Mfg. Go. v. Vroma/n 35 Mich. 327; Gri/moldby v. Wells L. B. 10 C. P. 391; Ditoy v. Mouflet 5 II. & N. 233; Gill v. Ka/u/fmcm 16 Kan. 571; Brown v. GorporaUon 35 II. 0. (Q. B.) 509.

<p>.Appeal from Kent. (Montgomery, J.)</p> <p>Divorce bill. Defendant appeals.</p>

<p>Error to Gratiot. (Hart, J.)</p> <p>Assumpsit. Defendant brings error.</p>

(Jennison, J.) Assumpsit. Defendant ITubbard brings error. Signing one’s name on the back of a promissory mote before the payee indorses it does not make one a joint-maker : Clapp> v. Pice 13 Gray 403; Prescott Bank v. Caverly 7 Gray 217; Dubois v. Mason 127 Mass. 37; Rey v. Simpson 22 How. 341; Good v. Martin 95 H. S. 90; Hirschner v. Conklin 40 Conn. 77.

<p>Ejectment — Bmnda/ry for twenty years.</p> <p>Ejectment will not lie for land adjoining plaintiff’s premises but on the other side of a fence which for twenty years the adjoining owners and occupants have treated as the boundary between their lots, Oomp L. § 7137.</p>

<p>Error to Lenawee. (ITowell, J.)</p> <p>AssuMpsit. Defendant brings error.</p>

(Hooker, J.) AssuMPSit. Defendant brings error. Recoupment may be bad against an infant suing for the value of his services: Moses v. Stevens 2 Pick. 332; Thomas v. Dike 11 Yt. 273; Howie v. Lincoln 25 Yt. 210; Judkins v. Walicer 17 Me. 38; Vehue v. Pinltham 60. Me. 142.

Joseph. (Pealer, J.) Ejectment. Defendant brings error. Where a deed and defeasance are executed together, they are considered one instrument : Powell on Mortgages 67, and have the effect of a mortgage: Brookway v. Wells 1 Paige 617; Monty ornery v. /Sped 55 Cal. 352.

<p>Recoupment — Separate transactions.</p> <p>Where one makes several distinct purchases' from another by different instruments but at the same time, they will be treated, for purposes of recoupment, as items of one transaction.</p>

<p>Error to Gratiot. (Hart, J.)</p> <p>Trover. Defendant brings error.</p>

<p>Error to Ionia. (Y. H. Smith, J.)</p> <p>GARNISHMENT. Plaintiffs bring error.</p>

). Assumpsit. Defendants bring error. Where time of payment is regulated by the occurrence of a certain event, recovery cannot be had without proof of its occurrence: Breaux v. Lauve 21 La. Ann. 179; Snell v. Cheney 88 Ill. 258 ; Wolf v. Ma/reh 54 Cal. 228 ; Dr alte v. Kill 58 la. 37 ; Wiggins v. Gill 59 Tenn. 140; Beleher v. Loveland 119 Mass. 539; Thompson v. Houston 31 Tex. 610.

<p>Error to Jackson. (Huntington, J.)</p> <p>Tbovbb. Plaintiff brings error.</p>

<p> TamaMon of partnership property. </p> <p>The charter of Saginaw provides for a hoard of review with jurisdiction of appeals from the assessment of city tares, and makes its decision, on such appeals, final. Act 300 of 1875, p. 395. Held, that the question whether an assessment is excessive is not for the courts to try.</p> <p>One is not bound to notice or to appeal from an assessment of personal taxes against him if jurisdiction to assess them did not exist.</p> <p>Personal property belonging to a partnership is assessable in the locality where it is, if the firm has its place of business there.</p>

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

(Stickney, J.) Assumpsit. Defendant brings error. Where one borrows money for the use of another as the latter’s security, the statute of limitations does not run against his claim for reimbursement until he himself has been compelled to pay: Odlim, v. Green-leaf 3 N. H. 210; Ponder v. Garter 12 Ired. 242; Crosby v. Wyatt 23 Me. 156; Thompson v. Stevens 2 N. & McC. 493 ; Sooit v. Nichols 21 Miss. 94; Wesley Church v. Moore lORenn.

<p>Mandamus. Submitted</p>

<p>Title of statute — Enacting dame — Notice of election — Amendments to bills.</p> <p>“An act to amend the charter of the city of Jackson,” changed the office of city attorney from one of appointment to one of election. Held that its title sufficiently complied with the constitutional requirement that the purpose of every act shall be expressed in its title.</p> <p>A statute is not invalidated by the fact that the bill, when introduced, had no enacting clause.</p> <p>Statutory notice of an election was held to be dispensed with, in the particular instance, where the statute was so amended as to require the election of an officer not previously provided for but the amendment went into effect too late to give the statutory notice before the election.</p> <p>Amendments made to a bill after the expiration of the period limited by the Constitution for the introduction of new bills, are not invalid-for that reason if they indicate no purpose to violate the Constitution and do not exceed the proper limits of legislative discretion.</p>

<p>Error to Alpena. (Emerick, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>Error to Alpena. (Emerick, J.)</p> <p>AssnMPsrr. Defendants bring error.</p>

(Full Court.) Assumpsit. Plaintiff brings error. cited in support of the right to recover on the award, as one good at common law, Burnside v. Whitney 21 N. T. 148; Diedrick v. Bichley 2 Hill 271; Wells v. Lain 15 Wend. 99; Cope v. Gilbert 4 Den. 347; French v. Few 20 Barb. 481; Dewy v. Hooper 51 Me. 178; Hamilton v. Hamilton 27 Ill. 159 ; Low v. Nolte 15 Ill. 368; Wems v. Dopier 17 Ill.

<p>. Religious societies — Expulsion from, the church.</p> <p>.A religious society incorporated by voluntary association under Comp. L. ch. 108 is a temporal body and distinct from the church organized from it, with which it has nothing to do except as it provides for its wants.</p> <p>An action in damages for expulsion from the church will not lie against the religious society connected therewith, even though the church he an integral part of the society.</p>

(Grant, J.) Garnishment. Plaintiff brings error. A debtor has the right to prefer one or more of his creditors, and pay them in full to the exclusion of all others: Olorice v. White 2 Pet. 178; Blalcey's Appeal 7 Penn.

<p>Agency— Continuing injury — Imnitations—JFraud.</p> <p>"Whether persons, while acting- in their own interest and making a request exclusively for their own advantage, can he deemed as agents of a third person who would participate in the benefits that would arise from its being granted—</p> <p>An action by a private person as for continuing injury in keeping a railway track in the street near his premises, is subject to the six-year limitation, if defendant relies on permission given longer ago and plaintiff seeks to show by such evidence as remains, that his permission was obtained by fraud.</p> <p>-One who seeks to set aside a transaction for fraud must move promptly; and delay is gross that extends beyond the time necessary to bar an action.</p>

Mandamus. The right of a citizen to inspect the records of a public office in 'which he had an interest, and to take transcripts therefrom if he desired, was long ago settled by judicial decision: King v. Shelley 3 Term 141; People v. GorneTl 47 Barb. 329; Hemes v. White 66 Me. 305.

(Chambers, J.) Bill to set aside conveyances. Complainant appeals. One who recovers in an' action of tort against another for fraudulent conduct is not defendant’s creditor within the meaning of the act invalidating conveyances as against creditors: Mill v. Bowmcm 35 Mich. 191; Bheahamis Case 25 Mich. 145.

<p>Error to "Wayne. (Speed, J.)</p> <p>Trespass. Defendant brings error.</p>

(Full Court.) Proceedings to recover possession. Defendant brings ■error.

<p>Error to Wayne. (Chambers, J.)</p> <p>Proceedings to recover possession of land. Complainant .appeals.</p>

(Chambers, J.) Assumpsit. Defendants bring error. At common law, a married woman conld not be a partner in business with, any one: Glover v. Aleott 11 Mich. 471; Jenne v. Marhle 37 Mich. 323; 2 Bish. Mar. Women § 435; 2 Colly.

(Gridley, J.)' Bill to set aside deed. Complainant appeals. One who is in the relation of equitable guardian to another cannot be a purchaser or a donee of his ward’s property: Olute v. Bcvron 2 Mich. 192; Moore v. Mandle-baum 8 Mich. 433; Tabor v. Mieh. Mutual Life Ins. Co* 42 Mich. 669; Bishop v. Aldriah 48 ~Wis. 619; Adams’ Eq. Jur. 185; Story’s Eq. Jur. 307.

<p>Error to Kalamazoo. (Hawes, J.)</p> <p>Assault with intent to kill and murder. Respondent brings error.</p>

(Bussell, J.) Larceny from a dwelling in the day time. In response’ to a writ of certiorari from the Supreme Court, the trial judge returns that the information on which respondent was arraigned was distinctly read to him by the prosecuting attorney, and on being ashed by the court whether he was. guilty or not guilty, he stated that he was guilty and desired to have that plea entered.

<p>Certiorari to Ionia. (Y. EL Smith, J.J</p>

<p> Waiver of vrregula/rity by pleading not guilty. </p> <p>Pleading to a complaint presented in justice’s court waives the irregularity of omitting to issue a subpoena before serving the warrant.</p>

<p>Pra/ud — Remote evidence — Prejudicial insti’uetions.</p> <p>In an action for fraud in selling plaintiff a second for a first mortgage, it is admissible to show that at the time of making the mortgage defendant said he did not want it to contain an exception in the covenant against encumbrances, as it might prejudice its sale.</p> <p>In an action for fraud in selling a second mortgage for a first, it was objected that testimony was too remote which showed that defendant, in giving the mortgage, had said he wanted it to trade, and could not do so if there was anything to show a prior mortgage. Defendant’s counsel said the testimony was that the buyer of the mortgage had sought defendant, and not defendant him. Held, prejudicial to defendant for the court to add in the hearing of the jury: “Yes, but he might have been lying in wait. If it had contained a covenant against incumbrances, and was a true statement of the situation of the property, it would itself have given the lie to the statement he is claimed to have made.”</p> <p>Judges must take great care to say nothing in the hearing of jurors while a case is progressing, which can possibly be construed to the prejudice of either party.</p>

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

<p>Mandamus — Payment of interest on school orders.</p> <p>Mandamus to compel a school district assessor to pay a school order was allowed where the Court was satisfied there was no valid defense.</p> <p>Interest from the time of demand maybe allowed in granting mandamus for the payment of a school order when it is such a settled demand as would sustain a recovery of interest at law.</p>

<p> Oonclumeness of findings of fact. </p> <p>.A finding of fact in a case at law tried without a jury, is conclusive where there is any evidence to found it upon, even though the evidence is conflicting.</p>

(Chipman, J.) • Assumpsit. Defendants bring error. Suit on a note deposited with a trustee must be brought in the trustee’s name: Hill on Trusts 503.

(Montgomery, J.) Case. Defendant brings error. The measure of damages for false and fraudulent representations of value is the difference between that stated and the true value: Page v. Parker 43 N. EL 363; Stiles v. White 11 Met. 356; Hamilton v. Billmgsley 37 Mich. 107; Page v. Wells id. 415.

(Chambers, J.) Assumpsit. Plaintiff brings error. Assumpsit will not lie for injury to security: Randall v. Higbee 37 Mich. 41; a bill of sale may be a pledge or mortgage and is so if the goods are merely security for repayment: MoMillan v.. La/rned 41 Mich. 523; Fuller v. Parrish 3 Mich. 211.

<p>University lands — Issue of patents.</p> <p>Mandamus to the Secretary of State will not lie to compel him to issue patents to State lands; that is the duty of the Governor. Comp. L. § '3824</p>

<p>Error to Mecosta. (Russell, J.)</p> <p>LarceNT. Respondent was convicted.</p>

<p>Constable acting outside of bailiwick — Arrests on suspicion — Homicide in resisting unlawful a/rrest — Outla/wry of prosecution — Amicus cwiw.</p> <p>A constable is not vested with official character when acting in a county to which he does not belong.</p> <p>An arrest cannot be made without a warrant on causeless suspicion, and in the absence of actual belief of guilt, based on actual facts that create probable cause.</p> <p>One who kills an actual felon in trying to arrest him, without knowing or believing him to be guilty, commits murder, especially if the person attempting to make the arrest is not an officer.</p> <p>A constable acting outside of his county and in company with a private citizen, sought to find out who had committed certain burglaries, by stationing themselves at a certain point and stopping passers-by. One man as to whom there was no probable cause for suspicion, would not he stopped ; and in escaping he fired on them, killing the private citizen. Held, that in trying him as for murder proof of the burglaries was inadmissible. And the case should have been put to the jury on the hypothesis that it was one of justifiable homicide.</p> <p>Voluntary homicide is no more than manslaughter if provoked by unlawful violence and by a display of deadly weapons, designed to compel submission to an unlawful arrest.</p> <p>One who was guilty of manslaughter but convicted of murder should he discharged, on vacating the judgment against him, if the right to pi'osecute him for manslaughter was outlawed when the proceedings for murder were taken.</p> <p>Where the Attorney General appears for the People in a criminal case, and confesses error, the Supreme Court can pay no attention to suggestions from others in respect to the case.</p>

<p>Exceptions before judgment from the Recorder’s Court of Detroit. (Swift, J.)</p> <p>KeepiNG a gaming room. Respondent was convicted..</p>

<p>Error to Washtenaw. (Joslin, J.)</p> <p>LaRoeNY. Respondent was convicted.</p>

(Montgomery, J.) Debt on bond. Plaintiff brings error. Execution for debt cannot issue on a decree until it is enrolled: JBrown v. Haff 5 Paige 235 ; Gleason v. Bisby 1 Clarke Cli. 551; and alimony is not a debt: Lyon v. Lyon 21 Conn. 185 ; but the writ of ne exeat is issuable: Chancery Pule IT Oadwell v. Ramdall 36 Mich. 251; and a proper occasion is an application for alimony: 2 Story’s Eq. Jur. §§ 1469,1871; 2 Bish.

<p>Error to Ottawa. (Arnold, J.)</p> <p>Foeoible detainer. Defendant brings error.</p> <p>As to the insufficiency of the complaint for want of essential facts: Bryan v. Smith 10 Mich. 229; Allen v. Carpenter 15 Mich. 32.</p>

<p>Error to Wayne. (Chambers, J.)</p> <p>Appeal from probate order disallowing will. Proponent ¡brings error.</p>

<p>Appeal from Cass. (A. J. Smith, J.)</p> <p>Bill to cancel assignment of mortgage and compel its-transfer to complainant. Defendants appeal.</p> <p>A gift of a mortgage is-void as against creditors. Fellows v. Smith 40 Mich. 689; a gift of personal property generally requires delivery, and when perfected is irrevocable except as against creditors:. Oreen v. Langdon 28 Mich. 225; Wilson v. Carpenter IT Wis. 512; Byars v. Spencer 101 Ill. 429: 40 Am. 212; but the mere execution of a deed or gift, if not delivered, will' not transfer title: Ma/rtvn v. Ramsey 5 Humph. 349;. Payne v. Powell 5 Bush 248; unless the donor’s intention to transfer it is established: FlUs v. Seoor 31 Mich. 185.</p> <p>Manual delivery of a note to a donee of it is unnecessary to the transfer of title: Whitcomb v. Whitney 24 Mich. 490; Grangiac v. Arden 10 Johns. 293; Ma/rtin v. Frost 75 N. T. 134; Perry on Trusts § 98.</p>

(Newton, J.) AssuMpstt. Defendant brings error. Promissory notes are valid though made to raise money to carry on illegal business: Bottomley v. Goldsmith 36 Mich. 28 ; Webber v. Donnelly 33 Mich. 471; Smith v. Barstow 2 Doug.

(Gridley, J.) Case. .Defendant brings error. A trainman’s announcement of a station does not amount to an invitation to aligbt from tbe train: Bridges v. N. L. R. W. Co. L. E. 6 Q. B. 377: 7 IÍ. L. 213; Weller v. R. W. Co. L. E. 9 C. P. 126 ; Cookie v. L. & 8.

Clair. (Stevens, J.) Bill to quiet title. Defendant appeals. A court of chancery will not try titles to land: Dwcmx v. Detroit Har.

<p>Imw'anee — Cancellation of policy — Assessments. „</p> <p>The cancellation of an insurance policy has no effect, in itself, upon a right of action which has previously accrued under the policy.</p> <p>The charter and hy-laws of a mutual fire insurance company provided that when the hoard of directors ordered an assessment the secretary should prepare it and it should he signed hy him and hy a majority of the hoard. Held that an unsigned and uncertified paper containing no headings to explain the figures set down in it, could not he •treated as an official assessment for the purpose of forfeiting the policy of one who had not paid the amount of his assessment until after the expiration of the period fixed hy notice to him. ‘</p>

(Mills, J.) Assumpsit. Plain till brings error. A parol agreement as to the terms on which an insurance policy shall be entered, made by the president, secretary or other general agent of the company, binds the company : Constant v. Insurance Co. 1 Am. J^aw Reg.

<p>Mandamus — Laches.</p> <p>Mandamus was not allowed to enforce the payment of a claim for salary where the relator first elected to sue in assumpsit hut left the action undetermined and, after ten years had passed from the date of his claim, sought his remedy by mandamus from the appellate court.</p>

(Gridley, J.) Case. Defendant brings error. Employers are bound to explain to servants the dangers of using machinery which they do not understand: Strahlendorf v. Rosenthal 30 Wis. 675; McGowan v. La Plata Mining Go. 9 Eed. Rep. 861; Grizzle v. Frost 3 F. & F. 622 ; St Loids (& S. E. Ry. Go. v. Yalirius 56 Ind. 511; Howling v. Girard D. Allen Go. 14 Gent.

(Hooker,'J.) Trespass. Defendants bring error. The action for mesne profits is discussed in 1 Chit. PI.

<p>Personal injuries — Pannages—Evidence.</p> <p>Evidence from competent persons as to the dangerous character of machinery, and the consequences of coming in contact with it, is admissible in an action for injuries caused thereby.</p> <p>In an action by a laborer for personal injuries from machinery, testimony as to his consequent inability to work, the amount of time he lost through sickness, what that time was worth to him, and his reasonable expenses for medical attendance, is admissible as bearing on the amount of damages to which he may be entitled.</p> <p>Damages for personal injury include everything of which the person recovering them has been deprived as a direct and natural consequence of the injury.</p> <p>A youth employed in a saw-mill was injured by the machinery before he had been there long. He had once before been employed in the same mill. Held, that in an action for the injury he could show the changes made in the arrangements of the mill in the interval between his terms of employment as bearing upon his want of familiarity with them when hurt.</p> <p>In an action for a personal injury from mill machinery, the question whether a witness had ever heal’d of such injuries to other persons is improper as calling for hearsay testimony.</p> <p>The age and intelligence of a laborer injured by machinery, and his experience in the use of such machinery, may be considered by the jury in an action by him for the injury.</p>

<p>Biparian rights — Agreements fraudulent against grantee.</p> <p>Riparian riglits, unless expressly limited, extend to the middle of the navigable channel, and cover any shallows or middle ground not shown in the government surveys, but lying between such channel and the shore; and it makes no difference that the deed conveying the premises to which the rights attach describes them according to a city plat instead of the government survey.</p> <p>Private agreements between joint riparian owners, whereby they apportion among themselves the submarine rights in front of their premises, cannot diminish the riparian rights of their grantees, if the lat- , ter have no notice of these agreements.</p> <p>Agreements between joint riparian owners, after making conveyance, cannot affectthe grantee’s rights; and deeds made in pursuance of such agreements would be in fraud of those rights if not made to the grantee, or to those claiming under him.</p>

(Speed, J.) Assumpsit. Defendant brings error. Provisions in articles of association are invalid if not warranted by tbe statute under which the company is organized : Stewart v. Father Matthew Society 41 Mich. 67 ; see Upton v. Tribil-■cock 91 IT. S. 45; Wither v. Stockholders 18 N. B. E. 179 ; Greenwood’s case 3 De G.,. M. & G. 459.

(Green, J.) Assumpsit. Defendants bring error. A creditor wlio receives1 a payment enclosed in a letter which refers to it as “ in settlement of account ” cannot afterward sue for a balance r McDaniels v. Lapham 21 Yt. 222; Me Glynn v. Billings-16 Yt. 329 ; Towslee v. Healey 39 Yt. 523; Gole v. Transportation Go. 26 Yt. 8T; McDaniels v. Bank of Riotland' 29 Yt. 230 ; Preston v. Grant 34 Yt. 201; Potter v. Douglass 44 Conn. 541; Palmerton v. Huxford 4 Den. 166;.

(Green, J.) Assumpsit. Plaintiff brings error. Copies are not admissible in evidence unless proper notice to produce the originals is seasonably given: 1 Green’s Pr. 250; Graham’s Pr. 528; Furguson v. Hemingway 38 Mich. 159; Gorham v. Gale 7 Cow. 739: 17 Am.

(Montgomery, J.) Ejectment. Defendant brings error. A wife’s agreement, on separating from her husband and on adequate -consideration, to give up her dower, is valid: Stephenson v. Osborne 41 Miss. 119; Miner's Appeal 54 Penn. St. 110; Dilunger's Appeal 35 Penn. St. 357; Thomas v. Brown 10 Ohio St. 247; Osgoodv.

<p>Appeal from Ottawa. (Arnold, J.)</p> <p>Bill to quiet title. (Bill and cross-bill.) Linnie S. Soule appeals.</p>

(Stickney, J.) Case. Defendant brings error. A mere reservation of timber without words of limitation and inheritance, reserves only á life estate to the grantor: 2 Waskb. E. P. 641, 646 : 3 id. 371, 435; Shep. Touch. 100; OwrUs v. Gardner 13 Met.. 457; Jamaica Pondv.

<p>Appeal froto. Huron. (Stevens, J.)</p> <p>Fobeolosdbe bill. Defendants appeal.</p> <p>Presumptions are against documentary evidence when"it is withheld: Page v. Stephens 23 Mich. 363 ; Wills •on Circum. Ev. 91; Stark. Ev. 437Life da Fire Ins. (Jo-to. Meeh. F. Ins. Go. 7 Wend. 34; Jachson v. M' Vey 18 . Johns. 332 ; Olifton v. United States^ How. 242; between the parties to a mortgage and their representatives the mortgage is prima facie evidence of the consideration: Webb-v. Faman 3 Mich. 139; Hermann on Estoppel 266.</p> <p>The recital in a mortgage of the amount of •consideration inay be contradicted or explained: l^liart. Ev. §§ 1042-4; Jones Mortg. 384; Bowker v. Johnson 17 Mich. 42; Robinson v. Gromelein 15 Mich. 316 ; Golman v. Post 10 Mich. 422; Ki/mball v. Myers 21 Mich. 276.</p>

' (Stevens, J.) EjbotmeNT. Plaintiff brings error. A sheriff’s deed on statutory foreclosure is invalid if not deposited with the register of deeds within a year from the-date of sale : Doyle v. Howard 16 Mich. 261; and the deed itself is not sufficient evidence of the regularity of the sale without proof that the statute was complied with: Barman-v. Qa/rhartt 10 Mich. 338 ; Hebert v. Bulte 42 Mich. 489 ; a tax is void if not legally assessed: Joyner v. Sch.

Clair. (Stevens, J.) Case. Defendants bring error. Damages for injury to a freehold are recoverable only for the period preceding the action; and if the wrong continues, successive actions may be brought; Cooley on Torts 619; Cumberland Camal Cor. v. Hitchings 65 Me. 140; Hatfield v. Central B. J¿. 33 N. J. L. 251; Savannah Je Ogeeohee Canal Co. v. Bowrguvn 51 Gra. 378; Van Pelt v. Davenport 42 la. 308 ; Ba/re v. Hoffman 79 Penn.

(Montgomery, J.) Assumpsit. Defendant brings error. A sheriff’s right to fees is statutory : Campbell v. Gothrcm 56 N. T. 281; and restricted to what the statute allows: Grofut v. Brandt 58 N. Y. 116; services not specifically provided for must be considered paid by the fees allowed for other work: Crocker v. Supervisors 35 Wis. 286; Preston v. Bacon 4 Oonn. 472; compensation for a levy is measured by the sum actually collected: Taylor v. Bcmney 4 Hill 621; Spafford v. Beaoh…

<p>Error to, Kalamazoo. (Mills, J.)</p> <p>EjeotMent. Plaintiff brings error.</p>

(Bussell, J.) Assumpsk. Plaintiff brings error. If a lessee covenants to repair and keep the premises in repair during the term, and redeliver without reservation in his covenant, he is bound to rebuild them if burnt down by accident, negligence or otherwise: Wood’s L. & T. 599 § 373 ; Bullock, v. Dommitt 6 Term 650; Earl of Chesterfield v. Duke of Bolton Comyn 627; Beach v. Crai/n 2 N. Y. 86; Phillips v. Stevens 16 Mass. 238; Pym v. Blackburn 3 Yes.

(Emerick, J.) REPLEVIN. Plaintiff brings error. As between man and wife,, use and possession of property is not evidence of ownership-in the husband: White v. Zcme 10 Mich. 333; Hill v. Chambers 30 Mich. 422; Davis v. Zwmnerman 40 Mich. 24, Possession and use of property and personal control over it are more convincing facts, sometimes, than testimony of interested persons as to ownership : Comstock v. Smith 20 Mich. 344; and may justify a verdict against such testimony:…

(Gage, J.) RbpleviN. Plaintiff brings error. A log-owner’s right to control bis own logs in the stream cannot be interfered with: Atty. Gen.v. Evcurt Booming Co. 34 Mich. 462; as to the liability for labor in running logs under contract, see Johnson v. Cranage 45 Mich. 18 ; Edson v. Cates 44 Mich. 253; a boom company has no authority to interfere with jams of logs not under its control, and not about its booms r Ames v. Port Huron Booming Oo. 11 Mich. 139.

Case made after judgment from Kent. (Montgomery, J.) KepleviN. Defendant bad judgment. Demand is unnecessary before bringing replevin, if defendant claims title : Wells on Replevin § 374; Smith v. McLean 24 la. 322; Seaver v. Dingley 4 Greenl. 306; Homan v. Laboo 1 Neb. 204; Per-kms v. Barnes 3 Nev. 557; Morris on Replevin 78.

<p>Alteration of interest clame in note — Evidence.</p> <p>In an action on a promissory note in which the interest clause had been’ altered by erasing the words “after maturity ” some time after it was given, the question was whether the alteration was made with, the maker’s consent. The payee’s wife testified to being in and out of the room while the maker and the payee were talking about some-notes which the former had given to .the latter, and being asked what was said about their bearing interest, answered “They wore, all to draw interest but the ninety-day note” [which was not the one-in suit.] She was farther asked “What was said by them about your husband’s erasing the word ‘maturity,’ if anything?” and-she answered “Well,-lie said that was to be done. He says ‘The-notes were to draw interest, wasn’t they,’ and he says ‘ Yes, all but the ninety-day note.’ He said that was all right.” On cross-examination she said she did not remember whether she saw any of the notes or saw them signed, or when they were signed or whether the conversation was before or after they were signed. Held that the-evidence did not warrant submitting the case to the jury on the theory that the maker told the payee to alter the note or that he approved of his doing so, after the fact.</p> <p>Agreements for ten per cent, interest must be written. Oomp. L., § 1633. Whether any liability arises from a parol ratification of an oral agreement that the interest clause in a note may be so changed as to ■ lengthen the period for which ten per cent, interest shall be paid -<2-</p> <p>One cannot recover under a declaration in which he claims as indorsee.-of a note bearing ten per cent, interest, if tlie interest clause in the note sued on is invalid.</p> <p>A mere inference that a note sued on is identical with a note referred to by a witness, cannot support a judgment.</p>

<p>Error to Ionia. • (Hart, J.)</p> <p>Murder. Kespondent was convicted.</p> <p>Murder by poison is covered by an information in ordinary form^without stating the means: Templeton v. People 27 Mich. 501; Slate v. Verrill 54 Me. 408; Com. v. Webster 5 Cush. 295 ; People v. Potter 5 Mich. 1; People v. Poe 1 Mich. 451.</p>

<p>Promissory note — Proof of eoxcutionr — Bvidence—Delivery to third person— Remission of excess in judgment after review.</p> <p>In an action on a note the signature thereto proves itself if delivery only is denied by the affidavit filed with the plea.</p> <p>The agent of a manufacturing corporation was one of a firm organized for selling its goods. The firm owed money and the agent furnished it from funds of the corporation, taking as security the note of one of the partners on which the maker’s father was surety. The note was payable to the corporation and was afterwards taken up and another given. In a suit on the last note defendants claimed that it had never been intended tbat it should be delivered to the payee. Held proper to refuse to allow defendants to show that certain members of the firm had, with others, projected a partnership for selling the plaintiff’s goods sometime before the note was given; or to show what funds were in the firm’s hands and that the agent had1 charge of and used them; or what the surety’s intention was, when he signed the first note, as to its delivery; or what property belonging to the firm the corporation had taken possession of on finding that their agent was short in his accounts.</p> <p>Complaint cannot be made of the exclusion of evidence if it is afterwards-admitted.</p> <p>A note that is given to the payee’s agent and is turned over to the payee before it is due and applied by him on an indebtedness of the maker, will sustain a recovery by the payee if he has no knowledge of any arrangement between the. maker and the agent whereby the latter was to keep the note in his own hands and use it in his own business.</p> <p>The amount of a judgment in excess of the ad damnum clause can be remitted even after review.</p>

(Fallass,J.) Bill to set aside mortgage. Complainant appeals. Contracts made-while under imprisonment are closely watched: 1 Story’s-Eq. J ur. § 239 ; Foshay v. Ferguson 5 Hill 158 ; Collins v. Westbury 2 Bay 211; duress depends as well on the state* of mind as on other facts: ITatter v. Greenlee 26 Am. Dec. 314; Broom’s Legal Maxims 277; 1 Selw.

<p> Settlement of mortgage debt. </p> <p>A foreclosure suit depending upon tie question whether or not the mortgage debt had been settled, was determined in complainant’s favor upon evidence that complainant had always claimed it as an exist, ing obligation, and that defendant fully understood that this claim was made; that neither note nor mortgage had been surrendered, and no steps had ever been taken to procure their cancellation or release; that the mortgager had assured complainant that he had fully informed a second mortgagee of the existence of the prior mortgage, and of the reasons why complainant insisted on Ms ríghSi-to hold it; and that defendant had made an agreement with complainant in which he set out the existence of a debt, including the mortgage as securing part of it and as belonging to complainant.</p> <p>The burden of showing that the amount due on a mortgage under foreclosure is less than complainant claims is on the defendant.</p> <p>A. foreclosure decree was given for the amount of a proposed compromise which had never amounted to more than an offer on either side, where the court considered the amount a sufficient approximation to-the debt to fairly represent it at the time the compromise was proposed.</p>

<p>Dem/u/rrer — Accounting between townships — Official laches.</p> <p>Demurrer to a bill in equity does not admit the truth of matters that are not relevant or well-pleaded, nor the correctness of legal inferences, nor unreasonable deductions of facts, nor unreasonable or inequitable meanings or implications.</p> <p>Where accounts between two townships are adjusted by their respective boards, one of the townships, in filing a bill to set aside the settlement, cannot distinguish itself from its board for the purpose of excusing laches, nor can it claim relief on the ground that its own board was inferior in ability or in knowledge of facts material to the settlement.</p> <p>Where unsettled accounts between two townships are adjusted by their boards at a joint meeting, one of the townships cannot afterward maintain a bill against the other to set aside the settlement on the ground that its own board was inferior to the other in ability, experience or knowledge, or that it was misled by the other as to the true financial condition of its own township. And the complaining township cannot distinguish between itself and its board for the purpose of escaping the consequence of the latter’s negligence.</p> <p>Every township board- is presumed competent to attend to the business it has to do, and in that respect to be equal in ability to any other board with which it deals.</p> <p>• The. misrepresentation to a public board of facts which they can ascertain and are bound to know as pertaining- to their own duties, but as to which they neglect to inform themselves, does not furnish any substantial ground for remedial equity. .A court cannot enter upon an original accounting on a bill wliicli is so deficient in equities as to leave an existing settlement in force. .</p>

<p>Appeal from Kalamazoo. (Mills, J.)</p> <p>Bill to remove cloud from title. Complainant appeals.</p>

<p>Justices’ courts — Unauthorized appearance.</p> <p>If a justice, whether properly or not, has erased his docket entry of the appearance of a defendant, he ought not to proceed in the case without giving notice of his purpose to the defendant,, or the attorney who had assumed to appear for him.</p> <p>Costs were withheld upon the affirmance oí a judgment reversing the action of a justice in proceeding ex parte in a case in which he would have had a right to proceed if he had not previously erased his entry of defendant’s appearance.</p>

(Newton, J.) Malioious peoseoution. Plaintiffs bring error. The omission to aver in the declaration the termination of the malicious' attachment suit, is cured by verdict: Feazle v. Simpson 2 111. 30; Nolle v. Thompson 3 Mete. (Ky.) 121; Rea v. Lewis Minor (Ala.) 382; Spaids v. Barrett 57 Ill. 289: 11 Am. Hep. 10; 3 Steph. Nisi Prius 2279; Skinner v. Gunton 1 Saund. 228; Young v. Gregorie 3 Call 391; Wine v. Ware 1 Siderfin 15.

<p>Error to Saginaw. (Gage, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>Appeal from Marquette. (Grant, J.)</p> <p>Specific PERFORMANCE. Defendant appeals.</p>

(A. J. Smith, J.) Assumpsit. Plaintiff brings error.' An insurance policy is not made void by the fact that the property is already insured, if the earlier insurance is invalidated by the latter v Watertown Ins. Go. v. Sewing Machine Go. 41 Mich. 137; and the insurer has the burden of showing that the earlier' policy remains in force: HopMns Mfg. Go. v. Aurora Ins.

<p> Actions for injuries to highways and bridges. </p> <p>Plea of the general issue is proper where the claim made is not well founded in fact; and after a verdict of no cause of action, for want of authority in the plaintiff to bring the suit, the defendant is not estopped from insisting upon such want of authority as a defense.</p> <p>The Legislature has power to direct what officer shall bring any class of public actions, and what shall he done with sums collected therein.</p> <p>Actions for injuries to highways and bridges cannot he brought by the township in which they are situated, but must be brought by the overseer of highways, or, if he is disqualified from suing, by the commissioner of highways. Acts 242 and 248 of 1881. And injuries to highways in different districts cannot he joined in one action.</p>

<p>Pa/riies — Agreements for ten per cent, interest— Commissions fot' making' collections— Vexatious appeals.</p> <p>An appellate court will not feel bound to consider whether it was technically proper to implead a particular defendant, if the written stipulations of the parties and their mode of conducting the litigation have been such as to practically waive the point, and no demurrer has been interposed.</p> <p>Agreements to pay ten per cent, interest are invalid in Michigan, unless in writing.</p> <p>In an accounting between the parties to a joint enterprise, a claim by one against the other for commissions for making collections in the-joint business is properly disallowed, if there was no express agreement therefor.</p> <p>An allowance made by a commissioner, in proceedings for an account- ' ing, cannot be raised by an appellate court in favor of a party not appealing.</p> <p>An agreement between the parties to a logging contract to share the expenses equally, covers not only the cost of property purchased for camp purposes, but also necessary payments of interest on such purchases.</p> <p>Damages for vexatious appeals are not given unless the appeal is-groundless or oppressive, or there is clear proof of intentional wrong on the part of the party taking it.</p> <p>Courts will incline to charitable views in construing parol contracts and ascertaining therefrom the motives and intention of the parties, where the proofs rest upon imperfect recollection, and there is opportunity for misunderstanding.</p>

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

<p>Error to Eaton. (Hooker, J.)</p> <p>TitovER. Plaintiff brings error."</p>

(Newton, J.) Case. Defendant brings error. Where a train was left on the highway, with scarcely room for a vehicle to pass, and a team became frightened thereby, the railway company was held liable: Ogle v. Phila., Wil. <& Balt. JR. JR. 3 Houst. 267; Great Western JR. JR. Go. v. JDeoatwr 33 Ill. 381.

<p>Error to Yan Burén. (Mills, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>Error to Muslcegon. (Russell, J.)</p> <p>Garnishment. The garnishee brings error.</p> <p>A gamisbee can be charged only for such property as is liable to execution: Drake on Attachments (6th ed.) §§ 463, 480; Ciarlo v. Av-erill 31 Yt. 512; Wimterfield v. Mil. do St. P. Py. Co. 29 Wis. 589; if he allows judgment to be entered against him for exempt property, it will not protect him: Loch v. Johnson, 36 Me. 464; Pierce v. Chic. d¿ N. W. Py. 36 Wis. 283; if a garnishee has a valid lien on the defendant’s property in his possession the creditor cannot take it: Drake on Attachments § 533; Nathan v. dies 5 Taunt. 558; Kirhman -y, Hamilion 9 Mart. (O. S.) 297; Nolen v. Crooh 5 Humph. 312; Smith v. Clarice 9 la. 24Í.</p>

(Speed, J.) Assumpsit. Plaintiff brings error. “ Family” means a collective body of persons living together within the cur-tilage : Wilson v. Ooohran 81 Tex. 677; Spencer v. Spencer 11 Paige 159 ; natural affection is a sufficient basis for an insurable interest in another’s life: Phoenix Mut. L. Ins. Go. v. Bailey 13 Wall. 616; Loomis v. Eagle L, <& H. Ins.

(Russell, J.) Assumpsit. Defendants bring error. Receipt of goods is different from acceptance (Benj. Sales § 703) winch must be proved by unequivocal acts of the buyer: Knight v. Ma/nn 118 Mass. 143; 2 Addison on Confc. § 1218; acceptance and appropriation do not waive damages for breach of contract of sale: Trowbridge v. Barrett 30 Wis. 661; Allen v. MoKibbvn 5 Mich. 449 5 Henkel v. Welsh 41 Mich. 664; Hall v. Belknap 37 Mich. 179.

<p> Holding court elsewhere than at county seat. </p> <p>The Constitution of Michigan forbids the removal of a county seat without a popular vote. Held, that a statute authorizing terms of the circuit court for Ingham county to be held at Lansing, the State capital, instead of at Mason, the county seat, both places being within the county, is not unconstitutional on the ground that it takes the clerk of the circuit court away from the county seat, where his office is established, since the same Constitution made the clerk of the circuit court the clerk also of the Supreme Court, which sits at the capRgl, and the circuit court itself has been given exceptional statutory powers as a forum for litigation to which the State is a party.</p> <p>The Legislature, in empowering circuit judges to fix the time for holding terms of court, does not divest itself of power to change the times so fixed.</p> <p>There is nothing in the history of county institutions in England, nor in the course of Michigan legislation since the Ordinance of 178'!', to establish so uniform a system with regard to the place of holding the circuit court for the county that holding it elsewhere than at the county seat should be in itself, and apart from any constitutional provision, a violation of constitutional principles.</p> <p>Under the Michigan system, the sheriff and the county clerk are officers of the circuit court for the county while it is iu session, and during that period are subject to the direction of the circuit judge in all matters pertaining to the administration of justice.</p>

<p> fforecloswre cannot precede maturity of debt. </p> <p>A. foreclosure bill will not lie until the debt secured by the mortgage under foreclosure falls due.</p>

<p> Services in aid of prosecuting dttormy. </p> <p>In an action against a prosecuting attorney for legal services rendered by plaintiff as Ms assistant, proof that defendant promised to tell the supervisors that the bill was right, and ought to be paid, is no evidence of a recognition of personal liability, or of the actual rendering of the services.</p> <p>A general delegation of his powers by a prosecuting attorney is against public policy, and is illegal; and it can furnish no basis which a court will recognize for any action by the person to whom the powers were delegated for personal compensation for his services.</p> <p>A prosecuting attorney is vested with a personal discretion as a minister of justice and not as a mere legal attorney, and he must act impartially, as well in refraining from prosecuting as in prosecuting. He must guard the real interests of public justice in behalf of all concerned, and he must not become entangled with private interests or. grievances in any way connected with charges of crime.</p> <p>A prosecuting attorney may, perhaps, employ assistants in ways not involving his official discretion or responsibility, but this discretion can only be delegated on special grounds, where an assistant has been provided for by law. *</p>

(Newton, J.) Assumpsit. Defendant brings error. cited as a similar case indicating that the city was primarily liable, Oity of Gli/n-ton v. Gownty of Clmion (la.) 16 N. W. Eep. 87.

(Newton, J.) Assumpsit. Defendant brings error. If one is so imbecile as .to be incapable of understanding what he is contracting for, but receives benefit from the contract, he will be liable upon it if the other party-acted in good faith, having no knowledge of his condition and taking no advantage of him : 2 Kent’s Com. 451; Mutual Life Lns.

<p>Married, woman’s absolute property — Record of assignment of mortgage — * Notice, to purchaser of mortgager’s interest, of assignment by mortgagee.</p> <p>WEere a man and wife unite in conveying property and the grantee' gives hack to each an individual mortgage thereon, the wife becomes absolute owner of her mortgage in her own right, and can dispose of it as she pleases and as if she were single.</p> <p>Comp. L. § 4335, providing that recording the assignment of a men-gage shall not be such notice of the assignment as to invalidate payments made by the mortgager to the mortgagee, applies where the payment, though not actually made by the mortgager, is so made as to release him from liability, as by an arrangement between all parties that he should deed the land to the person making the-payment.</p> <p>Where it is understood between a mortgager and mortgagees that the-mortgager shall convey to such person as one of the mortgagees shall designate, an assignment by the other mortgagee will not affect a purchaser who, in good faith, takes conveyance from the mortgager, without notice or knowledge of such assignment; the assignee' is subject to the same equities as the assignor, and if the assignor afterwards gives a discharge of the mortgage to the purchaser the latter is entitled to regard it as a regular and valid release thereof.</p>

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

<p>Maritime contracts of employment — Dischm'ge of employee.</p> <p>State courts have jurisdiction at common law over actions on contracts-for tlie employment by a vessel-owner of a captain or master for his vessel.</p> <p>A vessel-captain can maintain assumpsit on common and special counts against his employer, the owner of the vessel, for a breach of the contract of employment by discharging him before the expiration of the period for which he was hired.</p> <p>The words “I am very sorry to have to ask you to resign your position,” in a letter from an employer to his employee are properly construed as a peremptory discharge.</p> <p>Proof of the actual fitness of an employee who has been discharged is proper in an action by him on the contract of employment.</p> <p>A vessel-captain who has been peremptorily discharged by the owner of the vessel for unfitness, is not bound to offer to resume command before leaving and beginning suit against the owner on the contract of employment between them. He owes defendant no further duty than to use reasonable diligence to obtain other employment.</p> <p>Employers cannot assume to be final judges in their own behalf of the propriety of dismissing their employees during their term of employment, unless they also take the responsibility which attaches to dismissals without actual cause.</p>

* (Chipman, J.) Injunction bill to restrain enforcement of execution. Complainant appeals.

<p>Motion for order to show cause.</p>

<p>Exceptions before judgment from Oakland. (Stickney, J.)</p> <p>LaeoeNY. Respondent was convicted.</p>

<p>Habeas corpus and certiorari.</p>

(Newton, J.) TboyeR. Defendant brings error. A tax collector need not loot behind his process for authority to issue the same; Foster v. Wiley 27 Mich. 244; Savacool v. Boughton 5 Wend. 170; Parker v. WaT/rod 16 Wend. 614; Fulton v. Heaton 1 Barb. 652; Cornell v. Barnes 1 Hill 35.

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

(Fuller, J.) AssoMPSrr. Defendant brings error. In an action on a note the fact that it was void in its inception maybe shown under the general issue (1 Oh.

<p>Error to Huron. (Wixson, J.)</p> <p>Assumpsit. Plaintiff brings error.</p>

<p>Agent's e% post facto admissions to strangers — Resgestm.</p> <p>An agent’s talk with strangers concerning past transactions of his employer is not res gestse either in point of time or in relation to parties, and, being of no account as proof, cannot affect his principal’s rights under a contract on which the transactions were based.</p>

(Gage, J.) TboveR. Defendant brings error. Plaintiff in trover - must rely on the strength of his own title and not on the weakness of defendant’sDavidson v. Waldrmi 81 Ill. 120 Mulligan v. Bailey 28 Ga. 507; and if he has no title he must be non-suited: Baines v. Perryman 29 Ga. 529; and plaintiff must have a right of immediate possession {Ayres-v. French 41 Conn. 142; Wmship v. Neale 10 Gray 382; Clark v. Draper 19 N. H. 419) existing when the action is-brought: Jones v.…

(Gage, J.) MbohaNig’s lien. Petitioners appeal. The action on a mechanic’s lien is purely statutory, and in enforcing the lien the statute must be strictly followed: Willard v. Magoon 30 Mich. 276; Wagar v. Briscoe 38 Mich. 592; Glarh v. Raymond 26 Mich. 415 ; the action is not personal, for a personal judgment against any one, but is an action quasi in rein : Act 258 of 1879 § 13 ; Houck on Liens, sec. 47; the demurrer in this case goes to the whole action, and is overruled…

(Hooker, J.) Bill to remove cloud from title. Defendant appeals Tbe owner of a homestead can dispose of it even as against creditors: Rhead v. Hounson 46 Midi. 244; and if, while living with his wife upon a farm which includes it, he sells the whole without the concurrence of his wife, the deed would be void so far as the homestead itself is concerned,'and with no more notice to the purchaser than the fact that it was the home and dwelling place of the family : Dye v. Mann…

(Grant, J.) 1NJUNCTION bill. Defendant appeals. If two proprietors ver' bally settle by implied agreement among themselves tbe dividing line of their respective lands and for some time act-accordingly, neither can depart from the arrangement: O'Donnell v. Kelsey 10 N. 3T. 419; especially if they took-such reasonable measures to ascertain and establish the line between their lots that prudent persons would do : Smith v. Hamilton 20 Mich. 433 ; Kellogg v. Smith 7 Gush. 379.

(Jennison, J.) Assumpsit. Plaintiff brings error. A'parol assignment of an account is good: Draper v. Fletcher 26 Micb. 154; Hooker■ v. Eagle .Bank 30 N. Y. 83; tbe common counts are sufficient to sustain a suit in justice’s court on an assigned account: Kelly v. Waters 31 Micb. 404; Snell v. Gregory 37 Mich. 500; and pleadings in justices’ courts are to be liberally construed: Wilcox v. Tol. cited Kelly v. Waters 31 Mich. 404; Gregory v. Snell 31 Mich. 500; Sojoer v. Mills…

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

(Stickney, •!.) Assumpsit. Plaintiff brings error. cited as to acceptance of a draft offered in full payment, Mg Glynn v. Billings 16 Yt. 329 and Davenport v. Wheeler 7 Cow. 231. cited in support of the' admission of testimony as to the scope of plaintiff’s business, Wilbur v. Flood 16 Mich. 43; Starkie’s Ey.

Habeas Corpus. Respondent appeals. The fact that relator in babeas corpus proceedings is tbe mother of minors detained from her is not conclusive as to her right to their custody; it must further appear that it is for the welfare of the children to have them placed in her charge: Oorrie v. Gorrie 42 Mich. 509; Hurd on Habeas Corpus 462-3; Schouler’s Horn.

<p>Railway grounds — Ingury to person waiting for a passenger.</p> <p>The want of averments necessary to set forth the special grievance reliécf onin a declaration for damages based on personal injury will not be considered for the first time on review if the case was not disposed of on such ground and if court and counsel below had treated the declaration as proper.</p> <p>A man went to the depot to meet his wife, and having occasion to seek a retired spot, no special resort being provided, he stepped off the walk, in the darkness, upon a portion of the depot grounds, and fell into a hole. Held, that he was a customer of the railway company and. not a trespasser, and that' he could maintain an action against the company for the injury he sustained.</p>

<p> Replevin for impounded eattle. </p> <p>Comp. L. ch, 214 permitting replevin to be brought for distrained cattle is meant to provide an action wherein the legality of a distress of stray cattle may be tested.</p> <p>The sums allowed per head for cattle distrained (Comp. L. § 6768) are penalties within the meaning of Comp. L. § 6784 which allows the owner of heasts “impounded in order to recover a penalty ” to bring replevin for them.</p>

<p>Appeal from Branch. (Pealer, J.)</p> <p>Bill to dissolve marriage. Complainant appeals.</p> <p>cited Seiber v. Frice^ 26 Mich. 518; Feller ■v. Green 26 Mich. 70; Frost v. Yought 37 Mich. 65.</p>

<p>Bail/road compames — Killing cattle — Conversion of beef. •</p> <p>Two cows worth $40 each were killed on a railway track, and a heifer was so "badly hurt that the railway company’s agents killed her. The heifer was worth $25 for beef, but the company’s agents refused to-give up the carcass and buried it. The value was not disputed. The owner sued the company in case for negligence and added a special count for the conversion, and recovered $21.22. Held that the recovery must be construed as based on the special count alone and as confined to the value of the heifer as beef.</p>

Exceptions before sentence from Washtenaw. (Joslyn, J.) Complaint for violation of statute requiring saloons to be closed on election days. Respondent was convicted. Where a jury was sworn anew after a peremptory challenge had been allowed and before there had been any presentation of the case, or witnesses sworn, or evidence taken, defendant was not put in jeopardy at the time the first oath was administered to the jury: Stone v. State 2 Scam. 326 ; MoFadden v. Gom. 23 Pa.

Exceptions before sentence from Kalamazoo. (Mills, J.) LaecjeNY. Confessions are not presumed to be voluntary vvben made by a person in jail and when his statement, after being made under pressure, was used by way of confession: Piole v. State 30 Miss. 593; State v. Grant 21 Me. 171; Simon v. State 5 Ela. 285 ; Whaley v: State 11 Ga. 123; State v. Ostrander 18 la. 435; Hudson v. Commonwealth •2 Duv. 531; State v. Peter 14 La.

Clair. (Stevens, J.) Bill to enforce lien. Complainants appeal. Where a mortgage needs to be kept alive to protect the mortgagee’s rights, equity will keep it alive as against the mortgager : Gorm. Mut. L. Ins.

<p>Be-a/rrest on application iy bail — Sheriff’s charges.</p> <p>Comp. L. § 7877 enabling the bail in criminal cases to take out a mitti-mus from a justice for the re-arrest of their principal, is for private purposes, and not public, and maybe served by a private person; the sheriff’s charges for executing such a precept are therefore not a public charge.</p> <p>A bench warrant is sufficient for the re-arrest, on public grounds, of a person on bail.</p>

<p>Appeal from Ottawa. (Arnold, J.)</p> <p>Bill and cross-bill to quiet title. The Insurance Company appeals.</p>

<p>Trusts — Proceedings in equity on death of trustee.</p> <p>'Trusts belong to tbe jurisdiction of equity; and tbe remedies connected therewith are so identified with tbe procedure that no departure from tbe general practice can be bad unless permitted by statute or by rule of court.</p> <p>Oomp. L. cb. 148 in authorizing tbe court of chancery to appoint some person to complete tbe execution of a trust when the original trustee has died, resigned or been removed, does not apply to trusts in personalty but in real estate.</p> <p>A. trustee can be appointed by a court of equity to take tbe place of one who has died without completing the execution of bis trust, or has become incapable of acting. And in proper proceedings instituted in behalf of the trustee or of any one interested in the trust fund, and begun by bill of complaint, with actual or substituted notice to all parties concerned, the court will furnish such aid as from time to time may be needed in the administration of the trust. But these proceedings cannot be taken by petition.</p>

(Grage, J.) Assumpsit. Plaintiff brings error. A married woman’s note for any consideration that does not affect her separate property is void: Ross v. Walker 31 Mich. 120 ; Johnson v. /Sutherland 39 Mich. 580 ; she is not liable on the covenants ■of her husband’s deed : Cawley «¡l Fox 38 Mich. 887; and see West v. Laraway 28 Mich. 466; Haney v. Galloway 48 Mich. 533 ; Benson v. Morgan 50 Mich. 77.

<p>Railways — Injuries to animals on traek — Sufficiency of averments in pleadings — Inadequate force of brakemen — Reckless management.</p> <p>A declaration against a railway company for the killing of animals that ' had got upon the track through the company’s neglect to keep the side fencing in repair, averred that defendant ‘ ‘ so carelessly and negligently ran, conducted and directed the locomotive and train ” that they struck and killed the animals “so being on the railroad as-aforesaid by and through the neglect of the defendant to keep in repair the fences as aforesaid and through the gross neglect and reckless conduct of the servants and employees of defendant on said locomotive in running down said animals,” etc. Held that as it was not claimed on the trial that the averment was so general that no evidence-could he received in support of it, the jury was entitled to consider' any evidence that was admitted without objection and tended to-prove the main allegation; and if sending out a train without enough brakemen to keep it under control had any such tendency, this fact could be relied on as well as reckless conduct in the conductor or engineer at the time of the injury.</p> <p>Sending out a train with so few brakemen that on some grades its speed cannot be checked, cannot be held, as a matter of law, to have no tendency to support an allegation of reckless management; nor can the neglect be held tobe of one degree rather than another; if there are-special circumstances tending to excuse such management, they are for a jury to weigh.</p>

<p> Chattel mortgage to he satisfied hy labor. </p> <p>The buyer of a portable saw-mill gave a series of notes for the unpaid portion of the purchase price and secured them by a chattel mortgage on the mill. He also made a contract with the seller whereby he was to saw for him, and the latter was to be allowed to withhold one-third of the payments due for this work until it should amount to the unpaid 'balance. He did not do so however, and when so-, much sawing had been done that a third of the payments therefor would have completed the payment for the mill, the first note only had been actually paid. As the remaining no tes were not taken up, the-seller demanded the property, and as the buyer refused to give it up he took it on a writ of replevin. EM, that as the seller had not withheld the money to which he was entitled, and it was therefore-never allowed to apply on the mortgage, it did not follow that the-mortgage was extinguished from the fact, merely, that enough sawing had been done to satisfy it.</p>

Error-to Wayne. (Jennison, J.) Eoeoible ENTRY and detainer. Complainant appeals. Where possession has been retaken by force after being-surrendered a complaint in forcible entry and detainer proceedings should allege the force: Latimer v. Woodward 2 Doug. (Mich.) 368 ; Hoffrrwn v. Harrington 22 Mich. 57.

<p>Drain proceedings — Laches.</p> <p>A bill to set aside proceedings to establish a drain, and to enjoin the collection of the drain tax, was properly dismissed where complainant had joined with others in releasing the right of way, had bid off part of the work, had neglected to inform himself as to his interests, and had delayed to file his bill until the whole tax had been collected except his share and that of one other objector.</p>