Volume 52 — Michigan Reports

<p> Debtor’s absolute control of eaxrppt property. </p> <p>1. A debtor can do what he pleases with any of his property that is exempt from execution, and his disposition of it cannot subject it to execution or affect the exemption.</p> <p>3. The purchaser of goods exempt from execution obtains a title which overrides the lien of any subsequent attachment levy, and indeed of any previous levy unless it be for unpaid purchase money; and the title cannot be destroyed by subsequent admissions or acts of the debtor.</p>

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

<p>Error to Kalamazoo. (Mills, J.)</p> <p>Creditor’s bill, etc. Complainant appeals.</p>

<p>Error to Ingham. (Gridley, J.)</p> <p>Case. Plaintiff brings error.</p>

<p>Mandamus — Settlement of accounts between townships.</p> <p>1. Mandamus was granted to compel a board oí supervisors to jirovide for the payment of a balance credited upon the books of the county to a certain township which belonged, with another, to a county set off from the first, the credit having been made in pursuance of a mutual arrangement between the townships and the county indebted.</p> <p>2. Local equities between newly organized townships set oil from the same county should be speedily adjusted and with due respect to the deliberate settlements of the various local authorities.</p> <p>3. Record issues should be set forth as they stand, in showing cause in cases involving a settlement of public accounts between townships and counties.</p>

<p>Wills — Construction—Intm'est of unborn child.</p> <p>1. A will giving to the testator’s wile all his real estate, lands, tenements, etc., together with all his chattels, personal moneys, credits, etc., that shall remain alter discharging his legal debts; to have and hold the same in sole possession and to enjoy the sole use and benefit thereof during the term of the legatee’s natural life; provided, that any heir afterwards born shall receive out of such property or out of its proceeds or annual income all needful and proper support, maintenance and education during minoi'ity, and shall at age receive half the property, or the whole, if the legatee named be dead, is held, (1) to dispose of the entire estate, 3'eal and personal, without leaving any portion to be dealt with under the Statute of Descents or of Distribution; (2) to bestow it absolutely upon the wife and expected children.</p> <p>2. A child unborn at its parent’s death is a competent legatee under the parent’s will, and its interest under the will vests at the testator’s death, possession only being postponed. How. St. §§ 5529, 5546.</p>

<p>Appeal from Saginaw. (Gage, J.)</p> <p>Foreclosure bill. Defendant Mary appeals.</p>

<p>Homicide — Oondction of less offence than is chcovged.</p> <p>1. A statutory information for murder will not sustain a conviction for a mere assault, especially if it does not set out a murder by assault.</p> <p>2. A criminal assault resulting in death is either murder or manslaughter in Michigan.</p> <p>3. There can be no conviction of a lighter offense than is charged in the information unless it is one that is included in that which is charged.</p>

<p>Judgments — Sufficiency of declaration — Objections to testimony — Action on recognizance of special bail — Files of original case in evidence — Amendment of a sheriff’s retu/m.</p> <p>1. A judgment mil not generally be disturbed for technical defects in a declaration that is sufficient to sustain it and has not been demurred to.</p> <p>2. Tlie objection that testimony is “inadmissible under the pleadings” is too indefinite to aid an appellate court; the reasons for it should be clearly stated and the attention of the trial judge particularly directed thereto.</p> <p>3. In an action upon a recognizance of special bail, the omission to allege in the declaration that a fi. fa. has been issued and returned unsatisfied, will not, it seems, defeat a judgment if the objection has not been seasonably interposed.</p> <p>4. The files and record in a case are admissible in a suit upon a recognizance of special "bail taken therein.</p> <p>5. It seems to be within the discretion of a judge in trying an action upon a recognizance of special bail, to permit the sheriff to amend his return to a capias in the original suit, by adding the date.</p>

<p>Appeal from Mackinac. (Steere, J.)</p> <p>Injunction bills to restrain sales for taxes. Complainants appeal.</p>

<p>Error to Charlevoix. (Ramsdell, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>Appeal from Barry. (Hooker, J.)</p> <p>Injunction bill. Defendant appeals.</p>

<p>Error to St. Olair. (Harris, J.)</p> <p>Proceedings to recover possession of land. Complainant brings error.</p>

<p>BcdVwwy negligence — Ice a/nd snow alongside track.</p> <p>A railroad company is not negligent in omitting to clear snow and ice from the ground alongside its track even in the neighborhood of depot platforms ; and a brakeman who is injured in consequence of slipping on it has no remedy against the company. 1.</p> <p>A sudden call to supper, addressed by a conductor to a brakeman, is not such an improper or negligent command that the brakeman can recover for any injury sustained in hastily obeying it.</p> <p>Whoever hires out for any service takes the risks of it.</p>

<p>Contract of employment — Wages.</p> <p>1. The directors of a boom company passed a resolution that the laboring men signing contracts to remain through the season have a bonus of' fifteen per cent, at the end of it. Held, that this did not restrict the power of the president and superintendent of the company to ‘ hire other persons than the class of laborers referred to, on the same terms, especially if the persons hired knew nothing of the resolution.</p> <p>2. A letter from the superintendent of a boom company to its president, stating the terms upon which he had hired an employee, is admissible in evidence for the latter in a suit by him against the company for his wages, even though it was obtained by the defendant for its own information.</p>

<p>Error to Muskegon. (Russell, J.)</p> <p>Cask. Defendant brings error.</p>

(Montgomery, J.) Trespass. Defendant brings error. The action was brought under How. St. § 1372 to recover a penalty for maintaining certain alleged encroachments in a highway, the “ encroachment ” being in fact three rail fences running quite across the road. This fact appeared from the notice to remove them, served by the commissioner of highways upon the defendant.

<p>Bill to set aside judgment — Jurisdiction—Depositions.</p> <p>1. A bill will lie to set aside a judgment for having been obtained by fraud between the judgment debtor and defendant, even though it has already been made the foundation in another state, of a,suit in which defendant has attached the judgment debtor’s property there. And complainant need not himself have obtained a judgment against the debtor as a foundation for the suit to set the judgment aside.</p> <p>2. Depositions to which valid objection has been made in a chancery suit will not be considered on appeal even though a motion to suppress them was not acted on.</p>

<p>Omnibus exceptions&emdash; Withholding commissions&emdash;Duress.</p> <p>1. X general exception “ to the charge of the court as given and to each and every part thereof ” is not definite enough; the errors objected to must be specifically brought to the attention of the trial judge before the verdict is rendered so that he can have an opportunity to correct them.</p> <p>2. In an action by a borrower to recover from a loan agent the amount of commissions which the latter had withheld on delivering the money, the plaintiff was entitled to show how defendant obtained the receipt which he gave for the money, and that he gave it under protest.</p> <p>8. A receipt or acknowledgment of payment is not conclusive evidence of the fact.</p> <p>4. A borrower went to a loan agent of an insurance company for money but afterwards negotiated the loan himself, dealing with the company personally and by letter. The money went to him through the hands of the loan agent, who insisted on retaining part of it for his services, and compelled the borrower to give a receipt showing a settlement in full. Held, that in a'suit by the borrower against the loan agent for the amount withheld, it was proper to introduce the letters and to show what passed between the parties when the receipt was extorted.</p>

<p>Attachment — Defective service not cured by new writ.</p> <p>1. Attachment proceedings before a justice of the peace are special and statutory, and will not support a lien unless all the provisions of the statute as to the levy and execution of the writ are strictly observed.</p> <p>2. Eacts cannot be considered established by the finding of a jury, if the1 finding was based on improper testimony and an erroneous charge.</p> <p>3. After trespass has been brought for the seizure of goods under an attachment which was not properly served, the defect in service cannot be cured, for the purposes of the action in trespass, by taking out a new attachment.</p>

<p>Error to Kalamazoo. (Mills, J.)</p> <p>Appeal from probate. Contestants bring error.</p>

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

<p>Escrow, bailment or agency — Lien on equitable title.</p> <p>1. Delivery of an assignment of a land contract into tlie custody of one of the partners in a firm to which it is assigned can hardly he considered a delivery in escrow, to operate until the assignee shall execute a mortgage back, in a case where both the assignment and the contract have first to be delivered to the other party to the contract in order to obtain from him a deed on which to base the mortgage. If such a delivery be accompanied by a parol agreement as to the terms of the transfer, it cannot, under the Statute of Frauds, be-regarded as a trust, but is rather a bailment or agency.</p> <p>2. A vendor’s right to a lien it not, it seems, confined to the sale of a legal title or of a title in fee, but extends tó equitable titles subject, to the risk that bona fide purchasers from the legal holder may intervene and break it.</p> <p>3. Where the purchase price of one parcel of land is so blended, in a mortgage, with that of another, that it cannot be separated, no lien beyond the mortgage itself can properly be enforced.</p> <p>4. Whether a lien may not continue, if so agreed, where other collaterals are taken — Q.</p> <p>5. O. had 2000 acres of pine land and held a contract from a railroad company for about 5000 more. A certain firm which had contracted for the smaller parcel agreed also to take the contract for the larger, subject to certain sums thereafter to fall due. O. was to give the firm a deed of the smaller parcel and have a lien on the larger for what they owed him on both. The firm were to get a deed of the-larger parcel from the railroad company, and mortgage it, first to the company for what was left unpaid, and next to O. to secure-then- debt to him. This arrangement was oral. The- company, however, refused to give a deed -until the larger parcel was all paid for, and this refusal prevented the fulfillment of the arrangement in its terms. The firm changed, and its successor, after paying the company a sum which the latter insisted on applying in part upon other contracts, became bankrupt, and P., having obtained so much of its assets as concerned the property in the railroad lands, asked the company for a new contract for the larger parcel. The company refused, but agreed to consolidate all contracts in one, which P. took, and under which he made large sales. Everybody had notice of O.’s rights. Held, that as the company had' denied O.’s lien and tried to destroy it, and by compelling the consolidation of the contracts had made it impossible to separate- the payments, and by such consolidation had obtained for the larger parcel enough more than the contract price to render it liable for the money due to O., it must pay him that amount.</p>

<p>Error to Marquette. (Grant, J.)</p> <p>•Case. Plaintiff brings error.</p>

<p> Agency of member of corporation. </p> <p>1. One who assumes to deal with a corporation, through one of its members, and though himself a member, must satisfy himself at his peril that the member through whom he deals has authority to act as agent for the corporation and is acting within the scope of his authority.</p> <p>2. One who deals with another, supposing him to be an agent, is not •protected by the other’s assumption of authority to act.</p> <p>3. A principal is bound by the act of an agent who has only exceeded his authority or has violated special instructions, unless the party with whom he dealt had notice of the want of authority in the particular case.</p> <p>4. A corporator is not charged with constructive notice of corporate acts and may deal with the corporation as a stranger may, if his personal connection with corporate action is not such as to notify him of reasons to the contrary.</p>

<p>Bes judicata — Pao'ties impleaded concluded by decree.</p> <p>If one who is in privity with a complainant, and has precisely the same rights, does not join as complainant, it is proper to implead him as defendant; and if the case is one in which all rights can be adjudicated without a cross-bill, he is concluded by the decree, and cannot begin another suit in his own behalf.</p>

<p>Error to Ingham. (Gridley J.)</p> <p>Trespass. Defendant brings error.</p>

<p>Error to Oakland. (Stickney J.)</p> <p>Assumpsit. Plaintiff brings error.</p>

(Montgomery, J.) Assault and battery. Adams was convicted of assault and battery on a Mrs. Taylor. The record showed that as agent for his mother who owned a building which formerly belonged to the Taylors, but which they had lost on foreclosure, he caused Mrs. Taylor to be removed from it by some employees of his.

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

<p>Error to Muskegon. (Russell, J.)</p> <p>Case. Plaintiff brings error.</p>

<p>Estates of decedents — Partner’s liability for special deposit.</p> <p>1. The estate oí a deceased partner is not liable for the amount of bonds left without his knowledge in the hands of other members of the firm as a special'deposit, when it was no part of the firm’s business to receive such deposits.</p> <p>2. The issue upon presentation of a claim before probate commissioners continues the same on appeal to the circuit court and is governed by such evidences of the claim as were filed with the commissioners.</p> <p>3. Statements made by persons who have been partners but after the firm has dissolved and its debts have been assumed by another member, are immaterial in seeking to show the liability of a non-consenting partner for bonds specially deposited, the firm not having been organized to receive such deposits and getting no profit from them.</p> <p>4. Where a claim against an estate is for a special deposit of a quantity of government and state bonds with a firm of which decedent was a member, testimony is fatally defective, which, while tending to show the deposit of bonds, does not identify their character.</p> <p>5. The fact that a business firm, not organized for banking purposes, was in the habit of receiving an individual’s money and allowing him interest on-it does not tend to show that it was his depositary of securities.</p>

<p>Appeal from St. Clair. (Stevens, J.)</p> <p>Bill for support. Defendant appeals.</p>

<p>Appeal from St. Clair. (Stevens, J.)</p> <p>Bill to redeem and cross-bill to foreclose. 'All parties appeal.</p>

<p>Error to Muskegon. (Bussell, J.)</p> <p>Assumpsit. Defendant brings error.</p>

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

<p> GonVribution from co-indorsws </p> <p>Where one of several indorsers has been held for the full amount of the note, he is entitled to contribution from the rest; and if any of the others have become insolvent or are beyond the reach of process, he is entitled, in equity, to recover from the remainder the proportion they would have to pay of the whole amount if insolvents and nonresidents were excluded.</p>

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

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

<p>Appeal bond in eha/ncery — Suretyship—Tendee•</p> <p>1. The sureties on a chancery appeal bond must pay all costs, including those of the Supreme Court in case of affirmance, but they are not liable upon the bond for any portion of a deficiency left on sale of the appellant’s property to satisfy the decree.</p> <p>2. Tender by defendant of an amount actually due is not an admission of indebtedness to a larger amount claimed by plaintiff.</p>

<p>Accounting — Proceeds of joint business.</p> <p>A "bill for an accounting will lie wherever there are fiduciary relations-between the parties under which the duty to keep and render accounts exists; and one who files such a bill for an accounting for his share of the proceeds of a business carried on upon joint account, is not confined to his remedy at law, whether a partner or not.</p>

<p>Drain taxes — Interpleader.</p> <p>1. A bill of interpleader is not tbe proper proceeding to enable a township treasurer to determine the right to the amount of specific drain . taxes assessed against particular pieces of property and paid under protest, where the several property-owners, on the one hand, claim that the taxes are illegal and should be refunded, and, on the other, those individuals who have received township orders against the specific sums so paid, but whose interests are not themselves conflicting, present their orders to the- township treasurer to be cashed.</p> <p>•3. A bill in chancery will not lie where the amount in controversy is less than $100 ; nor will it where the entire amount is more than that, but has to be disposed of under separate issues no one of which involves so much. '■</p> <p>3. The amount of drain tax collected against any specific parcel of land is a separate fund by itself, and is not to be confounded with any other assessment; the money obtained on one abutment cannot be appropriated on account of any other. And though such taxes are paid into the township treasury they do not become township, moneys.</p>

<p>• Certiorari to circuit judge (Arnold, J.)</p> <p>Motion to dissolve attachment. Dissolution allowed, ¡by the circuit judge.</p>

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

<p>Trust to seenre payment — Bight of benefida/ries to information — Personal benefits — ■ Waiver — Supplemenia/ry orders.</p> <p>1. The transfer by a debtor to a creditor of the title, possession and control of the debtor’s property, whereby the transferee receives advantages in the exclusion of other creditors, furnishes a valuable consideration for the reduction of the debt and the release of personal liability.</p> <p>2. Beneficiaries under a trust have the right at all times to be kept informed by the trustees as to its management.</p> <p>3. Under a bill for an.accounting by trustees any testimony that throws light on their management of' the trust bears directly on the performance of their duty to keep the beneficiaries informed; and proof of misconduct and misappropriation by them is admissible whether anticipated and charged in the bill or not.</p> <p>4. Strict performance of trust duties may be waived; but such waiver in the past and in the case of completed transactions will not justify or excuse subsequent laxity that has not been authorized or approved.</p> <p>5. A discretion confided to trustees jointly cannot be independently exercised by one of them so as to ignore another even with the consent of others who, with him, would constitute a majority.</p> <p>6. Trustees must not receive from their employment personal benefits that are not provided for in the trust; as e. g. by receiving special compensation for supervising transactions connected with the business confided to them, but unauthorized by the trust.</p> <p>7. Where a case remains in court upon equities reserved and for future supervision, orders subsequent to the decree can be macle as circumstances require.</p> <p>8. An insolvent firm made an absolute warranty deed of its business and other property to its principal creditor. The latter conveyed it in trust to certain persons to be managed for his sole benefit, and empowered them to carry on the business, buy property, borrow money, sell lands and personalty and exercise other powers not inherent in mortgage relations. But at the same time the creditor and the trustees together executed a declaration of trust in favor of the firm, whereby, after the trust should be satisfied, the remainder of the property was to be conveyed, to it. Held that as between these parties this arrangement established a trust, and not merely a mortgage, relation, and that it placed the creditor under fiduciary obligations to the debtor.</p>

<p>Insurance — Payment of premium note — -Bmdenae—Laches.</p> <p>1. Where an insured person gives a premium note in payment of his policy he is bound to attend to its payment himself at maturity and is not excused by the non-presentation of the note especially if it specified no place of payment.</p> <p>2. The presumption that a note which specifies no place of payment is to be paid at the residence of the person liable upon it, is one that applies to indorsers.</p> <p>3. The conditions prescribed by an insurance policy as to the payment of a premium note cannot be waived by an insurance agent if the policy expressly stipulates that they shall not be.</p> <p>4. In an action on an insurance policy plaintiff sought to meet the defence that the premium note had never been paid by showing that the agent of the insurance company had told him the company had given him, the agent, credit for the note. The plaintiff’s further offer to show that he understood this to mean that the agent had paid the note was properly excluded as mere inference; and the agent’s statement to that effect, if made after the fact, would have been mere hearsay.</p> <p>5. A provision in the policy of a domestic insurance company that omission to sue for twelve months after a loss should be conclusive against the validity of the claim is not suspended for the period occupied in attempting to sue in foreign jurisdictions.</p>

<p>Error to Newaygo. (Fuller, J.)</p> <p>Oase. Defendant brings error.</p>

<p>Na/mgable streams — Obstructions by boom companies.</p> <p>A boom company is liable in damages for needlessly or wilfully obstructing a navigable stream to the hindrance and consequent injury of persons driving their own logs.</p>

<p>Justice’s cou/rt — asswnvpsit.</p> <p>A declaration in justice’s court set forth that by false warranty of a horse defendant had obtained plaintiff's note for it, and that on discovery of the fraud plaintiff had rescinded the sale, tendered back the horse and demanded the note, hut defendant had refused to surrender it, to plaintiff’s damage, its amount. Held that this may he sustained as a declaration in assumpsit. •</p>

<p>I/ihd — Evidence as to illicit intercowrse — Photographic fac similes — DeniaZ of guilt — Motive—Legal malice — Special verdict — Conduct of counsel.</p> <p>1. A physician accused of illicit intercourse with a patient sued his detainer for libel. Held, that he could show the patient’s physical condition as bearing on the probability of the charge. But in contradicting the patient’s testimony that she was weak and sick at home, the defence were properly confined to that issue, and it was not error to exclude their testimony as to her mode of employment there and her visiting elsewhere.</p> <p>2. Photographic copies of handwriting are inadmissible as evidence of existing documents if the originals can be had.</p> <p>3. Testimony that on a certain occasion a person had not denied guilt is-properly excluded if evidence is admitted of all that was said and done, and the inferences are left to the jury.</p> <p>4. In an action for newspaper libel, the motive of a subordinate in publishing the article complained of is irrelevant if not communicated to his principal, the defendant, .and if a showing has been made of everything that passed between principal and subordinate before publication. And where the defendant besides testifying that he had no ill-will toward plaintiff and did not know him, and that he had put implicit confidence in his subordinate, had also been allowed to-show all that took place before the publication, and th'e information on which he acted, there was no material error in excluding a question as to whether he had any purpose to injure plaintiff in assenting to the publication especially where it was put by his own counsel in 1 cross-examining him when called by the plaintiff to show his control of the paper.</p> <p>5. The willful publication of injurious statements involves the design to produce whatever injury must necessarily follow ; and when done purposely, knowingly and for no good purpose or justifiable end, it is malicious in tlie sight of the law even if done without any actual personal ill-will.</p> <p>6. A general verdict was given for the plaintiff in a libel suit based on the republication of statements already published in Canada, and affecting the reputation of plaintiff who was a professor in the University of Michigan. The jury were then asked specially whether the publication had been made because the charges had been published generally in Canadian papers, injuriously affecting, in plaintiff’s opinion, the best interests of the University and for the purpose of calling attention thereto as a matter of public duty and in order that there might be a public investigation by the regents of the University. The jury answered, as to previous publication, “We say, not generally to his knowledge, the evidence only going to show he had seen the two Tilsonburg papers ” — and as to the purpose of the republication they answered negatively. They afterwards answered the whole question in the negative. Held, that the answers were legally identical.</p> <p>7. Where a jury answered a special question by saying they had no means of knowing, and that they did not know from the evidence, and afterwards answered simply that they did not know, and court and counsel treated the' answer as a negative, it was so treated in the appellate court.</p> <p>8. The power of the Supreme Court to review the action in a circuit court on the trial is derived entirely from the statute and common-law practice on bills of exceptions ; and if the action of the circuit court has not been excepted to the Supreme Court capnot review it.</p> <p>9. Where the course of counsel in addressing the jury has not been excepted to and ruled on, the Supreme Court can not review it even though recited in the bill of exceptions.</p> <p>10. A false and injurious publication made in a public journal “for sensation and increase of circulation ” is, in a legal sense, malicious.</p> <p>11. A jury was instructed that their answers to special questions must conform to their general verdict or they would overrule it. Hdd, that if this was misleading as giving the general verdict precedence it was too late to object to it after the jury had retired and when the judge could not correct it.</p> <p>12. Rehearing will not be granted on the ground that a son of the judge who wrote the opinion belonged to a firm who were attorneys of record for one of the parties when the suit was brought, especially if the firm did not manage the case and did not appear in the appellate court.</p>

<p>Application for writs of mandamus and prohibition.</p>

<p> Qonaludveness of return of service. </p> <p>The return, by an officer, of service of process is conclusive, in any collateral proceeding, upon tbe parties to tbe suit in which the process issued.</p>

<p>Error to Tuscola. (Wixson J.)</p> <p>Ejectment. Defendants bring error.</p>

<p>Personal taxes — Recovery of tax paid under protest — payment by assignee.</p> <p>1. Payment of a personal tax Í3 not voluntary -when made under protest, and for tlie purpose of avoiding tlie immediate seizure of goods to satisfy it.</p> <p>2. The General Tax Law (1 How. St. p. 1277, sec. 42) in providing for a written protest upon payment of a tax, refers only to taxes on real property.</p> <p>3. Goods assigned for the benefit of creditors are exempt from levy to satisfy a personal tax during the ten days allowed to the assignees for filing their bond. Act 198 of 1879, sec. 1.</p> <p>4. Where an insolvent firm has assigned, its stock for the benefit of creditors, a personal tax against the firm cannot be satisfied from the stock in the hands of the assignee upon any other terms than any other claim; and if the assignee pays the tax under protest in order to avoid seizure of the stock, he can bring suit against the officer collecting it, to recover it back, so long as it remains in the officer’s hands.</p> <p>5. The Charter of Detroit in providing that- city taxes shall be liens upon the property assessed, until paid (Act 486 of 1869: Charter ch. v. sec. 22, subd. 64) did not mean that the lien should attach to personal property.</p>

<p>Error to Ingham. (Gridley, J.)</p> <p>Assumpsit. Plaintiff brings error.</p>

<p>Error to Saginaw. (Gage, J.)</p> <p>Murder. Respondent brings error.</p>

<p>Pa/i'tiiion and guardian’s sale — Formal defects — Affidavits.</p> <p>A recital in a decree for partition that a specified party is entitled to share cannot he collaterally attacked even though it be an adjudication that ought properly to have preceded the decree, and though the person named be illegitimate and therefore precluded by statute from claiming any part of the estate.</p> <p>Proceedings for partition need not be held invalid on review merely because the petition therefor was made by an administratrix, as such, so long as it appeared that she had a dower interest and was guardian for minor heira; the misdescription could have been amended at any stage by leave of the judge of probate.</p> <p>8. Want of venue to an affidavit of the servicé of notice is not a fatal defect if the venue is indorsed on the notice and the affidavit is properly entitled and sworn to.</p> <p>4. Partition befpre expiration of a dower interest is not forbidden by How. St. § 5983; that statute only provides for making partition afterwards.</p> <p>5. A description in a deed may be sustained if, with the aid of the usual local inquiries, there would be no difficulty in locating the land.</p> <p>6. A guardian’s oath is not defective for being entitled “In the matter of the estate of Henry McVay et al. minors ” since this identifies the estate, which is the purpose of the title.</p> <p>7. Sufficient publication of notice of a guardian’s sale maybe shown by other evidence than the affidavit thereof, which is for the purpose of a permanent record.</p> <p>8. Want of an affidavit of the posting of notice of a guardian’s sale is not fatal if the fact is shown in the sworn report of the sale and is recited in the order confirming it.</p> <p>9. The probate judge’s approval of the bond given by a guardian before selling his ward’s real estate sufficiently appears by the recital of the fact in the order confirming the sale.</p> <p>10. A guardian’s report of the sale, for a round sum, of two parcels of. land, one belonging to each of two wards, is not necessarily to be construed as showing that both were sold together for one sum orto impeach the judge’s performance of his duty in satisfying himself as to the facts before confirming the sale.</p>

<p> Cloud on title. </p> <p>A decree compelling a release by executors was sustained by a divided court where one of two joint-owners, acting with the other’s verbal authority, had made a contract of sale the terms of which, after various transfers, had been fulfilled, but where the executors and legal representatives of the other joint owner, who had died meanwhile, claimed to retain their decedents’ original interest.</p>

<p>Appeal from Ingham. (Gridley J.)</p> <p>Bill to compel delivery of deed in fee simple. Complainant appeals.</p>

<p> Belief in equity depends on ease made in Mil. </p> <p>Where a purchaser under a second mortgage seeks relief against one who holds under a first mortgage, on the ground that the first was not filed and recorded until after the second, he must establish the case made by his bill or he cannot have relief.</p>

<p>Appeal from St. Clair. (Stevens, J.)</p> <p>Injunction of nuisance. Defendant appeals.</p>

<p>Appeal from the Superior Court of Grand Rapids. (Parrish, J.)</p> <p>Mechanic’s lien. Petitioner appeals.</p>

(Montgomeiy, J.) Injunction bill filed by certain members of the “ Society of the Fourth Reformed Church of Grand Rapids, Michigan,” to restrain the defendants, who are the minister and other members of the consistory of that church, from dissolving the society and diverting its property from the support of public worship according to the doctrines and usages of the Reformed church. Appeal from Ottawa.

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

<p>Breach of promise — Letters in emdence — Bxemplary damages.</p> <p>1. It is not clearly error to permit a father to testify in a breach of promise suit brought by his daughter that after he had given his consent to defendant upon the latter’s telling him that the lady had consented to marry him, the pair conducted themselves towards each other as though they were engaged. This is not to show the mutual promise but to show that defendant trifled with plaintiff’s affections.'</p> <p>2. Surmises and conclusions of witnesses, based on what they have observed of mutual behavior, are not sufficient to prove a promise of marriage; the facts observed should be shown.</p> <p>, 3. Where plaintiff in a breach of promise suit has put her letters to defendant in evidence, defendant may put in evidence the replies.</p> <p>4. In a suit brought by a woman for breach of promise, the plaintiff may show that she has no independent means, and may put in evidence the. letters written by her to defendant before he broke the engagement. And the jury may consider the length of the engagement, and give damages for injury to her feelings or reputation, or any circumstances of indignity.</p>

<p> Sheriff’s fees. </p> <p>1. Supervisors cannot be compelled, in the absence of statutory authority to allow a sheriff ten cents a mile for travel in bringing back goods seized on a search-warrant, where they have already made that allowance for going to the place of service.</p> <p>2. A sheriff is not entitled to payment for merely colorable attendance in court, when he can produce no certificate from the court showing, his attendance, and when he has in fact, been employed elsewhere. But he should be paid for any substantial performance of his duty</p> <p>3. A board of supervisors cannot be restrained in its method of business in the disposition of claims if the claimant has not been deprived, thereby of an opportunity to be heard.</p> <p>4. Where a board of supervisors has permitted the sheriff to draw periodically from the county treasurer the amount of his actual expenses, leaving the rest of his account for future audit, they may properly, upon the final audit, refuse to allow credit for such of the expenses as they find improper, and may deduct the treasurer’s payments to. that extent from what would otherwise be due.</p> <p>5. A board of supervisors cannot delegate the auditing of accounts to the county treasurer.</p>

<p> Sehool-disiricts. </p> <p>Mandamus lies on relation of a school-district assessor to compel the clerk of a township to which the district formerly belonged, to certify to the supervisor of the township to which it now belongs the amount ascertained by the school inspectors as due to the relator's district from what remained of the old district out of which it was erected.</p>

<p>Error to Wayne: (Speed, J.)</p> <p>Appeal from probate. Contestants bring error.</p>

<p>Error to Menominee. (Grant, J.)</p> <p>Replevin. Plaintiff brings error.</p>

<p>Error to Houghton. (Williams, J.)</p> <p>Ejectment. Defendant brings error.</p>

<p>Error to Houghton. (Williams, J.)</p> <p>Case. Defendant brings error.</p>

<p>Notm’y’s certificate — -Bona fide Tiold&r of forged mortgage.</p> <p>1. A notarial certificate is prima facie but not conclusive evidence of tbe authority of the instrument to which it is attached; 'and its force may be rebutted by the testimony of the person who appears to have executed the instrument.</p> <p>2. A forged mortgage cannot be valid even in the hands of a bona fide holder, unless, indeed, the latter came into possession of it under circumstances which establish an equity in his favor against the party apparently liable upon it.</p> <p>3. One who takes a mortgage signed only by a married woman, with knowledge that it does not relate to her separate property, and that its execution is clandestine, can hardly claim any equities against her if the mortgage should turn out to be forged.</p>

<p>Statute of limitations — Oowoersion.</p> <p>The rule that one who has taken part in the conversion of timber may he held as a joint wrong-doer with any one who thereafter does anything in pursuance of such conversion, does not prevent the Statute of Limitations from running in favor of one who took such part without any knowledge that any wrong was intended, and did not participate in subsequent acts of conversion.</p>

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

<p>Error to Wayne. (Chambers, J.)</p> <p>Debt on bond. Defendants bring error.</p>

<p>Lease by a firm — Non-consent of absent partner.</p> <p>An action upon the covenants of a lease which purports to have been given by a firm will not lie against the partners if, after having been left with the lessees’ attorney to be held until an absent partner has approved of it, such approval is not given.</p>

<p>Error to Tan Burén. (Mills, J.)</p> <p>Assumpsit. Plaintiffs bring error.</p>

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

<p>Wills — Construction—Seclusion of heirs.</p> <p>A man after deeding some land to one of his sons in consideration of the latter’s relinquishing all claims of inheritance, made a will in which his wife and another son were the only legatees specifically named. He provided that his wife should have the use of $7000 until this son became of age, when the son was to have $2000 of it. When the mother died the remaing $5000 was to revert to the estate and the son was to share in it “ with the rest of my heirs.” Held that this clause practically revoked the former arrangement by which the other son was excluded from any right of inheritance, and entitled him not only to a share in the $5000 but in any surplus for distribution.</p>

<p>Negligence — Gase and ti’espass for irgury.</p> <p>1. It is gross negligence to drive upon a street railway track in front of an approaching car without looking around until the car runs into one’s vehicle; and it is a wrong not only to the railway company but to persons riding in or waiting for the car, to wilfully obstruct its progress in this way when there is nothing to hinder one from getting off the track.</p> <p>2. In trespass against an employer for an injury caused by the act of his servant, it is for the jury to decide whether the act was wilful or careless; if wilful, the employer would not be answerable.</p>

<p> Composition of crrectitors. </p> <p>A composition of creditors is not effective, under the Bankrupt Act, to discharge any portion of a debt unless. the creditor’s name and address and the amount of his claim were set forth in the statement made by the debtor at the meeting of creditors at which the resolution of composition was adopted, nor unless such resolution was recorded by order of the court which confirmed the composition.</p>

<p>Justices’ courts — Affidamt for appeal.</p> <p>1. An unsigned affidavit for an appeal from a justice’s court is not fatally defective; and if the appellee appears and notices the case for trial the omission of the signature is waived.</p> <p>2. How. St. § 7030 in providing that no appeal from a justice shall he dismissed on the ground of a defective affidavit if the appellant makes a proper one, means affidavits that are fatally defective; any other would be sufficient.</p>

<p>Error to Houghton. (Williams, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>Wvidence of facts known equally to deceased, opponent — Presumption of payment.</p> <p>1. The rule forbidding the survivor of two persons adversely interested to testify to facts known equally to both does not apply where the opposing party has introduced, as admissions, the statements drawn from the survivor in a preliminary proceeding in which he did not have the aid of counsel. In such a case the survivor is entitled to testify fully as to the subject matter of such admissions, and his opponent must be presumed to have waived the benefit of the statutory rule.</p> <p>2. The error of excluding competent-testimony may sometimes be cured by treating it as if it were in evidence.</p> <p>3. A request to charge must be founded upon testimony in the case, or it is not error to refuse it.</p> <p>4. Payment of a demand note is not presumed from the neglect to present it, until time enough has passed to outlaw it.</p> <p>•5. In a proceeding against an estate to recover the amount of a note given by the decedent, 1<he fact that since the date of the note the payee has received from decedent cheques enough to pay it, does not of itself establish the payment of this particular nofp nor does it even place upon the claimant the burden of showing that it was not paid.</p> <p>6. The burden of proving payment of a debt is upon the debtor when in an action to recover upon it the debt has been established by competent evidence.</p> <p>7. In a proceeding' against an estate to recover the face of a note given by decedent it was shown that the maker had directed the cashier of a bank to pay the claimant a certain sum, and had himself given the cashier a cheque to serve as a voucher. Held, that after the payment of the amount had been shown, the cheque was properly excluded as evidence, at least as against the claimant.</p> <p>8. The payee in a cheque is not to he assumed to have received payment thereon if it is not shown to be indorsed; the fact of payment is for a jury.</p>

<p>Error to Yan Burén. (Mills, J.)</p> <p>Beplevin. Defendants bring error.</p>

<p>Error to tlie Superior Court of Detroit. (Chipman. J.)</p> <p>Trespass for assault and battery. Plaintiff brings error.</p>

<p> Bill to arniul mamage. </p> <p>1. How. St. § 6622 in requiring the issues raised, upon a bill to annul a marriage to be tried by jury is not mandatory but secures to either party the right to a jury, unless it is waived. And it will be considered waived if after replication a motion is not made by one party, on notice to the other, for a feigned issue.</p> <p>2. A divorce bill cannot be amended by substituting a prayer that the marriage be annulled. '</p>

<p>Set-off — Discharge from guan'diamhifp.</p> <p>1. A claim for personalty received by plaintiff while acting as defendant’s guardian, but not accounted for by him, is proper set-off in an action on a note, being for goods sold or for money had and received. How. St. § 7865.</p> <p>2. A claim for money had and received cannot be classed as unliquidated damages, as the amount of such a claim is always ascertainable.</p> <p>8. A receipt by a ward for property held by his guardian is no more conclusive than any other receipt, and while it justifies the guardian’s discharge neither the receipt nor the discharge precludes the ward from showing that under a mutual arrangement the guardian has not actually accounted for part of the property.</p> <p>4. Undue haste in the settlement of a guardian’s accounts is not favored.</p>

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

<p>Corporations — Directors—Corporate note — Bona fide holder.</p> <p>1. The ordinary management oí a corporation is under the control of its directors.</p> <p>2. The directors of a corporation in which every stock-holder was a director adopted a rule allowing any stockholder to have its note at any time for the par value of a quarter of his stock. Such a note was duly executed by the treasurer, at the instance of a director, and was made payable to a firm consisting of this director and one other, who together owned nearly all the stock. The note was negotiated and came into the hands of a bona fide holder. Held that the corporation, on being sued by the holder, could not deny its execution or escape liability upon it.</p> <p>3. Negotiable paper of a corporation is valid in the hands of a bona fide holder if it appears, on its face, to have been duly issued by the corporation in conformity to the provisions of its charter. If the corporation has power under any circumstances to issue such paper, a bona fide holder has the right ,to presume that it was issued under the circumstances which gave authority.</p>

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

<p>Appeal from Ionia. (Lovell, J.)</p> <p>Bill to set aside a mortgage. Defendants Rice appeal.</p>

<p>Statute of frauds — Bargain to malee a costly coat</p> <p>1. The Statute of Frauds declares that a contract for the sale of goods for more than fifty dollars shall not be valid unless the purchaser shall accept and receive part of the goods, or shall give something to bind the bargain, or unless some memorandum of the bargain shall be signed by the party to be charged. How. St. § 6186. Held, that this does not cover a tailor’s contract to make a customer a sixty dollar overcoat that has actually been sent to the customer when finished and has been returned by him for alterations after which it has been held subject to his order.</p> <p>2. A jury must find for the plaintiff if his claim is supported by undisputed testimony which they believe.</p> <p>8. A request to charge is properly refused if unsupported by testimony.</p>

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

<p>C&rtiora/ri — Justice’s presence in jwry room.</p> <p>1. Certiorari does not lie for the review of merely technical defects in the proceedings of a justice, unless they go to the foundation of the action; the proper remedy is by appeal, when the case can be re-tried and determined on its merits.</p> <p>2. A justice’s return to a writ of certiorari must be taken as true.</p> <p>.3. A justice of the peace has no right to go alone into the jury room to advise the jury, even at their request, unless the parties or their counsel consent.</p>

<p>Statute of frauds — Agreement for future lease.</p> <p>1. An agreement for a lease may be a different thing from the lease.</p> <p>2. A parol agreement for a year’s lease to begin in the future is valid, and not within the Statute of Frauds as an oral contract for more than a year’s lease.</p>

<p>Oonsbructive maM'irmony — Reputation— Widow’s claim.</p> <p>1. Continued cohabitation as husband and wife establishes the relation without any actual marriage ceremony if the parties are competent to many and consent to take each other as husband and wife.</p> <p>2. Reputation is important as evidence to establish the fact of a marriage, but it cannot disprove an actual marriage. And where there is doubt, the presumption should favor a lawful marriage rather than notorious immorality.</p> <p>3. A man and woman lived together, as if they were husband and wife, for twenty years and had thirteen children. Then they separated and during the man’s life the woman was formally married to another man who lived with her nearly three years and then married another woman while the first was still lining. Held that the first couple were husband and wife, and the following marriage therefore void, so that the last marriage was valid and the woman entitled to claim a widow’s share of her husband’s estate upon his death.</p>

<p>Election between counts — Sale subject to inspection — Damages.</p> <p>1. Whether it is not an abuse of judicial discretion to allow a plaintiff who has elected to proceed under special counts to change his election and ask for judgment on the common counts — Q. But where, in either case, the plaintiff must rely on the same facts and the ’ defense is the same, the error is unimportant.</p> <p>2. In suing for the price of a quantity of timber shipped to defendants at a distance, and received subject to inspection, it is proper for plaintiff to show, as an element in the case, how much was loaded for shipment, if it appears that some of it was taken hy defendants before inspection and that they used some which did not pass.</p> <p>3. The measure of damages for lumber sold under a contract, subject to inspection, is the contract price for such as passed inspection, and the market value for such as did not but was taken by defendant.</p>

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

<p>Costs on appeal from a justice — Appeal from taxation — Attendance of witnesses.</p> <p>1. The statute permitting a circuit judge to award the costs, on an appeal from a justice, to either party (Plow. St. § 7026), does not apply where the plaintiff has discontinued after the case has been sent back to the circuit for a new trial upon a reversal in defendant’s favor; in such cases defendant is entitled to costs as a matter of right.</p> <p>2. An appellant’s right to costs is fixed by the entry of a judgment for reversal with costs, if his adversary discontinues without taking a new trial.</p> <p>3. Witness fees must be taxed as costs in accordance with the showing made by the statutory affidavit attached to the bill of costs, unless there is a counter showing.</p> <p>4. When an appeal from the taxation of costs by the county clerk is taken to the circuit judge, the'party appealing should specially except in writing to the allowances or disallowances complained of ; and the bill of costs should then go upon those exceptions alone and on the same showing as was made to the clerk.</p>

<p>Ga/rnishment — Joint garnishees — Disclosure.</p> <p>1. Where an agent for the collection of a debt that is secured by mortgage takes possession of the mortgaged property, he cannot be held with the creditor as a joint garnishee in a proceeding in which the debtor is principal defendant.</p> <p>2. Several persons cannot be held as joint garnishees unless the principal defendant is indebted to them jointly; and this is so whether the garnishment proceeding is based upon a debt or upon the possession of property.</p> <p>8. Persons cannot be held as garnishees upon a disclosure which admits neither an indebtedness nor the possession of property belonging to the principal defendant.</p>

<p>Wills — Revocation.</p> <p>“Where the contestant of a will claimed that it had been revoked by a later will which had been destroyed, andI4the proponent sought to show that testator was incompetent to make the second will, the testimony of testator’s physician and of others that testator had said she wanted the first will to stand, is inadmissible upon an issue of competency, and cannot sustain a finding that there was a revoking clause but that testator did not so understand.</p>

<p> Commissions. </p> <p>A claim for commissions on a sale of logs was -based on the following advices from the o-ímer: “I would sell them for $8 or, if yoiq thought necessary, as low even as $7.50. I want you to find a customer for me, and I will feel greatly obliged, besides paying you whatever you ask for your trouble.” The logs were in fact sold to a purchaser designated to the agent by the owner, at prices lower than those stated, and the agent acted in part in the purchaser’s interest. Held that he was not entitled to commissions.</p>

<p>Failure of consideration — Purpose of giving notes.</p> <p>1. B and F were litigating in equity the ownership of certain logs and B filed a separate bill to restrain F from interfering with them. In this latter proceeding a receiver was appointed by consent of the parties, and he, being authorized to sell the logs, delivered them io F and took his notes therefor upon which he afterwards brought suit. The bill in the last mentioned suit was dismissed and the receiver thus became a mere bailee for the party actually entitled to the logs. Held that in the suit by the receiver on the notes F had a right to show that it was understood when they were given that they were to be paid only if the logs should be adjudged not to belong to him, and that as the logs were in fact his, the notes were without consideration.</p> <p>2. Failure of consideration may always be shown in a suit on a contract; and in an action on negotiable paper proof may be made of the purpose for which it was given, or that the purpose does not require the enforcement of payment.</p>

<p>Mutual Aid Society — Action by memb&r.</p> <p>A man belonged to a mutual aid society to which he paid certain moneys which, according to the scheme of the society, were to be paid out again to the various members. Thinking that he had received no consideration for these payments he afterwards brought an action as for money had and received, and sued two of the members jointly with the society. Held that the joint action would not lie; and as the money had been disposed of with plaintiff’s consent the form of action seems inappropriate.</p>

<p>Appeal from Wayne. (Jennison, J.)</p> <p>Bill of review in foreclosure. Defendant Bassett appeals..</p>

<p>Sale — Mistcolce of fact — Rescission.</p> <p>1. A bill of sale of a livery stock included “two two-seated full-top carriages,” but it afterward appeared that one of the carriages which the vendor supposed was a full-top was not so. Held that this mistake of fact could not, in law, relieve him of the obligation to deliver a full-top in its place or account for the value of such a carriage.</p> <p>2. The rule that one cannot rescind a contract in part and affirm it in part does not apply where a purchaser of stock, the items of which are particularly described in the bill of sale, refuses to accept an article which varies from the description, and sues the vendor for failure to fulfill the contract of sale.</p>

<p> Suit on attachment bond injustice’s court. </p> <p>An action of covenant lies in justice’s court on a money bond given to secure tbe payment of $150 or less (How. St. § 6820); and on other bonds if the penalty stated therein and the amount involved by breach thereof do not exceed the sum for which suit may b® brought before a justice.</p>

<p>Collection of taxes — Supervisor’s wrnrant.</p> <p>A township treasurer is not liable in trover, or in any action of tort, for enforcing the collection of an excessive tax, if his warrant therefor from the supervisor is fair on its face.</p>

<p>Error to Muskegon. (Russell, J.)</p> <p>Replevin. Defendant brings error.</p>

<p> Highway taxes. </p> <p>Where a township hoard votes a highway money tax upon the town property in addition to the labor rate the supervisor must levy it upon all the property in the, township, including that of any incorporated village within its boundaries. How. St. ch. 29.</p> <p>2. The right to work out a highway tax in labor is superseded by a vote of the township electors residing outside of an incorporated village that the tax shall be paid in money. But this does not affect the village, whose inhabitants shall then maintain their own roads by a tax on their own property while the people of the rest of the township maintain their roads by a tax on theirs. How. St. §§ 1354,1356.</p> <p>3. Where the township board imposes a highway tax they represent the town meeting in doing so, and are confined to the same subjects of taxation.</p> <p>4. A highway tax cannot be imposed without express warrant of law; and it will be illegal if the mode of levy and collection prescribed by statute is not followed and the tax levied upon the property specified.</p>

<p>Alteration of town bounds — Notice—Map.</p> <p>1. “Notice in writing ” must be posted of any application to a board of supervisors to detach territory from one township and add it to another. How. St. § 487. Held, that such notice may not only be printed, but the names thereto attached, if properly authenticated, may also be printed.</p> <p>2. The map which petitioners for a change in township boundaries are required by How. St. § 486 to furnish to the board of supervisors need not show the full topography of all the townships to be affected; it is enough to give the boundaries and. sections or parts of sections for each, together with the place and course of any natural boundaries, if any, that are to be established as limits.</p> <p>8. Where notices of the hearing of an application to alter township boundaries are shown to have been seasonably given, it is immaterial that an affidavit showing that the notices were posted on different specified days does not. show on which day the first was posted.</p>

<p>Demurrer — Werner of defects of jurisdiction.</p> <p>1 A demurrer is an appearance and a general demurrer waives objections to jurisdiction of tbe person.</p> <p>2. Defects in jurisdiction of subject matter can not be waived, even where tbe nature of tbe action is local or any element of locality is necessary to tbe jurisdiction.</p> <p>3. Defendant’s objection that tbe court has no authority in tbe particular case must be specifically and seasonably taken if tbe court is one of general jurisdiction; and it is properly taken by a plea to tbe jurisdiction. But if a general demurrer has already been filed this objection is waived and the plea presents an immaterial issue and should be stricken from the files.</p> <p>4. A non-resident waives his exemption from the process of even a local court of general jurisdiction if he does not object seasonably.</p> <p>5. The circuit courts of Michigan are courts of general jurisdiction and can take cognizance of suits on contracts, irrespective of the locality of their origin, provided the parties, by service of process or otherwise, are before them.</p> <p>6. Costs of the issue on an immaterial plea to the jurisdiction and of the Supreme Court on error were exacted upon granting leave to plead to the merits.</p>

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

<p> Town, board meeting. </p> <p>Meetings of a township hoard, unless duly called and notified, are not legal if not attended hy all the members.</p>

<p>Replevin from, sheriff — Mandamus to correct judgment entn'y.</p> <p>1. Where goods held by the sheriff under an attachment or execution are taken from him on writ of replevin a judgment in his favor, before the attachment proceedings are decided, must be for the return of the property and not for the special value of his lien; and if the judgment has been erroneously entered mandamus will lie upon a seasonable application to change the journal entry thereof accordingly, unless such change will prejudice the rights of strangers.</p> <p>3. A judgment, the entiy of which was corrected by mandamus, was ordered to take effect from the date of the correction, so that full opportunity to ask for a review thereof might be saved.</p> <p>8. Costs were not allowed on mandamus where the occasion for its issue was the error of relator’s counsel.</p>

<p>Appeal from Manistee. (Judkins, J.)</p> <p>Bill of foreclosure. Defendant Hannah appeals.</p>

<p>Error to Ottawa. (Arnold, J.)</p> <p>Appeal in probate. Petitioner brings error.</p>

<p>Error to Muskegon. (Russell, J.)</p> <p>Replevin. Defendant brings error.</p>

<p>Brain proceedings — Petition— Oertiorcm.</p> <p>1. A petition to lay out a drain does not give tlie drain commissioner jurisdiction to act if tire description of the proposed drain is so indefinite as to leave it to him to determine the direction it shall take.</p> <p>fi. Certiorari may be resorted to for the review of drain proceedings in cases where the drain commissioner has acted without jurisdiction.</p>

Joseph. (Pealer, J.) Appeal from probate order allowing advances to be made by an executor, from the estate. Petitioners therefor bring error on reversal of the order.

<p>Olaim against estate — testimony as to dealings — jury.</p> <p>1. In prosecuting a claim against an estate for moneys lent to the decedent by claimant, but not in connection with his business, general testimony from his book-keeper that he, the book-keeper, found no such item debited on the cash account, would be irrelevant and could not be admitted in defense to the claim, especially if it did not appear that he would know what amounts were received by his employer; it would also be improper to show by him or others that he or they had been present when claimant and decedent had talked about other claims, and had never heard this one mentioned. Nor would the decedent’s widow be allowed to testify that she did not know of her husband’s borrowing from claimant.</p> <p>3. Jurors cannot ordinarily take books, papers and depositions with them to the jury-room. But the irregularityof permitting it is waived by failing to object thereto.</p> <p>8. A survivor cannot testify adversely as to private dealings with a deceased person, even in rebuttal of another’s testimony as to a conversation between them overheard by the witness.</p>

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

<p>Mortgagee’s lien — Cosí of redemption from prior mortgage — Additional security — Opening case on hea/ring for further proofs.</p> <p>1. The cost to which the assignee of a second mortgage is put to redeem from the foreclosure of the first is a necessary outlay in aid of the assigned security, and the assignee is entitled to hold the assignment as security for it, but not to make it a personal charge against the assignor.</p> <p>2. A court of chancery may sometimes award issues or other modes of inquiry, in order to satisfy its own conscience, where the testimony on well-defined issues is conflicting.</p> <p>8. After the proofs in a chancery cause have been taken, especially if they have been taken in open court, it is not proper upon the hearing to open the case generally for the reception of further proofs, nor to open it at all without special reasons, and then usually for the admission only of formal or documentary evidence, or of testimony that has been overlooked by excusable inadvertence.</p> <p>4. One who has secured another’s debt is entitled to the benefit of any further security which the lien-holder obtains from the debtor ; and if the latter security consists of a chattel mortgage and the lien-holder disposes of the property which it covers, for his own benefit and without the consent of the person giving the first security, the latter is released, to the extent, at least, of the property so disposed of. And its proceeds must be first applied to the satisfaction of the oldest mortgage if the securities have been so confused by the lien-holder as to make it impossible to distinguish between them.</p>

<p>Bank debts — Liability of nonresident stockholders.</p> <p>l. The estate of a non-resident stockholder in a hank may he held ratably liable for debts of the bank that maturgd before the passage of Act 141 of 1877, and to such debts the limitations imposed by that Act as to service within the jurisdiction, cannot apply. And a judgment against the corporation is prima facie evidence of the liability* and the entries on the stock-ledgers are admissible to show that decedent was a stockholder.</p> <p>2. A shareholder in a bank is, as regards creditors, not only a surety for the bank but as one of the associates therein, he is held to have undertaken, by the terms of association, to be bound for the debts Which it contracts. How. St., §8174. And the liability of tli shareholders is commensurate with that of the corporation and extends to costs and interest on judgments.</p> <p>.. 8 A statute giving the creditors of a banking corporation a new remedy against stockholders cannot affect those who took shares in the-corporation before its passage; nor can it, so far as existing claims are concerned, supersede the remedies in force when they arose and in reliance upon which they were contracted.</p>

<p>Exceptions before sentence — Review of evidence.</p> <p>1. The Supreme Court will not, on exceptions before sentence, review the evidence to determine whether it was sufficient to justify conviction, as that is a question for the jury.</p> <p>2. A request, in a criminal case, for an instruction that there is no evidence whatever on some essential part of the case, presents a question of law that is a proper subject of exception.</p>

<p>Exceptions before judgment from the Recorder’s Court of Detroit. (Swift, J.)</p> <p>Information for larceny from the person.</p>

<p>Sunday liquor-selling — Identification—Agency.</p> <p>1. In a prosecution for keeping a saloon open on Sunday, testimony that respondent kept the saloon in question, and that the witness knew him tends to identify the respondent as the proprietor of the saloon.</p> <p>2. Where a saloon-keeper is prosecuted for violating the law which requires all saloons to he closed on Sunday, the respondent’s intent in-allowing his saloon to he open is immaterial, even if the opening was the act of his har-tender and without his knowledge or express authority.</p>

<p>Exceptions before judgment from Macomb. (Stevens, J.)</p> <p>Information for adultery.</p>

<p> New trial. </p> <p>I. The discretion of the circuit court in denying a new trial is not reviewable by the Supreme Court,</p> <p>3. New trial need not be granted on the ground that the jury were not kept in a private place until they rendered then- verdict if in fact they agreed upon it before leaving their room.</p> <p>3. The, verdict of a jury in a criminal case cannot be disturbed on exceptions if the evidence had any tendency to support it and the case was properly presented to the jury on the law.</p>

<p>Exceptions before judgment from Allegan. (Arnold, J.)</p> <p>Complaint for keeping'saloon open, on Sunday.</p>

<p>Exceptions before judgment from Leelanaw. (Ramsdell,. J.)</p> <p>Complaint for selling liquor without having given bond.</p>

<p> Keeping open saloon on a legal holiday. </p> <p>1. A complaint and warrant for selling liquor on a legal holiday were held sufficient where they set forth that on the date specified the respondent, “being then and there a keeper of a saloon in said village and the same being a place where spirituous and malt liquors are sold at retail, and the said 4th of July, A. D, 1882, being a legal holiday, did not keep the said saloon closed, and did then and there on the said 4th day of July, A. D. 1882, a legal holiday, keep the said saloon open for the purpose of selling spirituous and malt liquors at retail therein, the said [respondent] not being then and there a druggist nor a person whose business consists in whole or in part of the sale of drugs and medicines ” etc.</p> <p>2. The presence upon jury of talesmen over sixty years old is not ground for challenge to the array, but will sustain a challenge for cause, as the only persons qualified for talesmen are those who are not exempt from jury duty. How. St. § 7555.</p> <p>8. Upon a prosecution for keeping a saloon open testimony that the saloon was open on a certain day and identifying respondent as ‘ keeper of the saloon and as keeping liquor and being about the building though the bar-tender was in charge, is enough to go to the jury upon the main charge.</p> <p>4. In identifying the proprietor of a saloon it was held proper to ask a witness as to the contents of a license card which he testified he had seen in the saloon.</p>

<p>Claim, against estate — Covenant against mcurnbrainces</p> <p>A claim against an estate cannot be based upon a covenant against present incumbrances in a deed from decedent to claimant’s grantor, if tlie latter lias no.t assigned to claimant the right of action for the breach but has only conveyed the land.</p>

<p> Partnership settlement a question of fact. </p> <p>In assumpsit against former partners for tlae amount found due plaintiff on a partnership settlement, and which defendants had promised to pay him, the facts of settlement and of the joint promise to pay were for the jury.</p>

(Mills, J.) Appeal from probate decree denying a petition for a widow’s allowance from the estate. The estate brings error.

<p> Mwndamm to enforce stipulation to settle ease. </p> <p>Mandamus does not lie to enforce a disputed stipulation to settle a case oven though money has been paid thereunder. The parties to the stipulation are entitled to have the fact as to the settlement tried ou a regular issue before a jury; and if the validity of the stipulation is contested it should be brought into the case by plea and not by motion.</p>

<p>Estates of decedents — Appeal from allowance of claim.</p> <p>An appeal from the allowance by probate commissioners of claims against an estate is a matter of right to those who are interested, and such person may take it if the administrator declines to; and if the probate judge allows an appeal to some one else he thereby passes-upon the fact of the administrator’s refusal.</p>

<p>Ma licious prosecution — Malice—Assault— Unnecessary force— Yaniance.</p> <p>1 B. took the -whifiletrees from C’s wagon and C., who had a wagon stake in his hand, threatened to break his head. S. thereupon had C. arrested for assault and C. sued him for malicious prosecution. The judge charged that while a man had a ri^ht to protect his property he would only be justified in using just force enough to do so; and that while C. might have been justified in taking away the whifiletrees fromB. and using only enough force for that purpose he would not be justified in striking him on the head with a stick ns that would be inflicting punishment. Meld that this was correct and was not objectionable as taking- from the jury the question whether C. was chargeable with using more force than was necessary. And it was proper to instruct the jury that they might make allowance for excitement on the part of S. as bearing on the question whether he acted maliciously in having O. prosecuted.</p> <p>3. A justice’s mistake in filling out a complaint as one for assault and battery when the actual complaint, on which the warrant was issued, was for an assault only, cannot in an action for malicious prosecution prejudice the person making the complaint.</p>

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

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

<p>Error to Newaygo. (Fuller, J.)</p> <p>Eeplevin. Plaintiff brings error.</p>

<p>Error to Oceana. (Russell, J.)</p> <p>Assumpsit. Plaintiff brings error.</p>

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

<p>Homicide — Threats—Evidence of disposition — Gdlibre of weapon^Interference to protect another — Insults.</p> <p>1: In a prosecution for homicide committed in a riotous affray among neighbors and apparently in defense of a brother, all facts leading thereto and connected with it should be admitted, including the conduct of other participants besides respondent, and especially of those who provoked the assault. The dangerous character of the deceased and his disposition when drunk are also material; and so would be the fact that the person in whose behalf respondent interposed was afraid deceased would cut him as he had others.</p> <p>2. If, upon a prosecution for a homicide done in an affray, declarations of malignant purpose are shown that were made by respondent before the killing, his remarks accompanying them should also be received in order to determine whether the threats were not mere brag.</p> <p>S. Where, in a case of killing by pistol shot, it had been shown on post mortem examination that the shot was too large for the pistol respondent claimed to have, it was also necessary to show that the fatal shot came from respondent’s pistol; and when it had been shown that two shots were fired, it was important, independently of any claim that respondent fired both shots, to know who else had pistols.</p> <p>4. A man has a right, in a riotous affray, to interfere for the protection of a brother who is in personal danger whether the brother was blameless or not. And the use of a deadly weapon in such interference does not of itself show malice where neither began the affray and there had been no space for cooling time nor opportunity to withdraw safely.</p> <p>5. A dangerous felony may be forcibly prevented by any one who is not himself in the wrong directly or by complicity.</p> <p>6. Coolness and deliberation cannot be required of those who are concerned in a riotous and exciting affray involving a considerable number of persons; and the absence of these qualities cannot fairly be treated as aggravating the acts of persons not originally in the wrong.</p> <p>7. It is not good law to hold that though insulting language will not justify a dangerous assault, yet if it has provoked one it precludes the person who used it from resisting the assault and deprives others of the right to interfere for his protection.</p>

<p>Exceptions before judgment from Clare. (Hart, J.)</p> <p>Complaint for keeping saloon open after nine o’clock at night.</p>

<p>Error to Schoolcraft. (Steere, J.)</p> <p>Information for forgery. Eespondent brings error.</p>

<p>Error to Oakland. (Stickney J.)</p> <p>Complaint for selling liquor without giving bond. Respondent brings error.</p>

<p>Lease — Novation—Action for me and occupation — Recoupment.</p> <p>1. A tenant who has refused to pay rent until repairs are made, and is-accordingly notified to quit, has a right to regard the lease as ended, and if the landlord then agrees to make the repairs provided the-tenant will stay, the lease is a new one.</p> <p>2. In an action upon the common counts for use and occupation the tenant can, under the general issue, set up a new agreement: and by way of recoupment can, on giving notice, show damage to goods on the premises.</p> <p>3. Use and occupation may he sued for generally or specially without. reference to the form of the lease under which they are enjoyed.</p>

<p>Mortgagee’s good faith — apparent ownership — Damages.</p> <p>1. If a bill of sale of a shingle-mill is taken as security for its owner’s debts but the mill is left in his possession a copy of the bill must be filed at once or the property cannot be protected by it against other creditors of the owner (How. St. §' 6193) whose good faith alone will not protect the unrecorded transfer.</p> <p>2. Where replevin against an officer who had taken the property under , an attachment was brought by a person to whom a bill of sale had been given as security but not put on file, it was held proper for defendant to show that part of the debts on which the attachment issued accrued after the bill was given and in reliance upon the vendor’s continued possession and apparent ownership.</p> <p>3 Where malice is in no way an element in a litigation over the right to personal property the rule of damages, is the same whether the action is of contract or of tort.</p> <p>4 Evidence as to prospective profits is inadmissible to fix the measure of damages in a case where the loss of such profits is involved if it appears that they could not be made except .under the most favorable circumstances, that the chances against them were numerous and that it was doubtful if the business was profitable at all as conducted.</p>

<p>Equity practice — Amendment of Mil at the hearing.</p> <p>1. A judgment creditor’s bill to set aside a deed as in fraud of Ms rigMs under tbe execution did not aver that tbe sheriff bad levied on the land before tbe bill was filed. Tbe bill was not demurred to, however, and testimony was taken on the whole issues. Held proper to allow the bill to be amended on the hearing.</p> <p>2. Costs of the Supreme Court, on affirmance of a decree, are allowed only against the actual appellant, if parties jointly interested with him do not join in the appeal.</p>

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

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

<p> Mandamus moating wder to set aside execution sale. </p> <p>1. Notice of proceedings to set aside an execution sale should be given to the purchaser.</p> <p>2. Mandamus to vacate an order setting aside a sale on an execution that had been levied without waiting for thé enrollment of the decree was denied, even though no notice of the proceedings to set aside the sale had been given to the purchaser, where (1) the dáte of the decree, as shown in the execution, was notice of the fact that the exeration was prematurely issued; and (3) where the motion to set aside was not made until the time to redeem had expired.</p>