Volume 53 — Michigan Reports

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

<p> Costs on affirmance upon cross-appeals. </p> <p>Where cross-appeals were taken from a decree for an accounting, and the decree was affirmed, the party who printed the record was allowed to recover as costs one-half his taxable disbursements after deducting one-half the taxable disbursements of the other party.</p>

<p> Jurisdiction pending appeal from order of commitment. </p> <p>Pending an appeal from an order committing the defendant in a divorce suit for contempt in refusing to pay alimony, the trial court has sufficient jurisdiction over the parties to make a farther order of the same kind, upon defendant’s subsequent refusal to pay alimony that accrued after the appeal was taken.</p>

<p>Wills — Survivorship—Construction of bequest.</p> <p>1. A woman willed her property to her four children equally and added that if either died before she did, her estate should be “ divided among the survivors or their legal representatives, share and share alike.” Oge of the four did die before the testator, leaving two children. Held, that they were entitled to the share of their mother.</p> <p>2. Language creating rights should be construed according to its ordinary and commonly-accepted meaning if used by persons who are unacquainted with any different technical significance which it may have in law.</p> <p>3. Such a construction of a will is favored in law as conforms the distribution thereunder, as nearly as the language will permit, to the general rule of inheritance, and regards equities rather than technicalities.</p> <p>4. Devisees who have kept their interest in the testator’s personalty but have conveyed away their rights in the real estate, retain sufficient interest to entitle them to appeal from a construction of a will which disposes of both kinds of property.</p>

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

<p>Error to Barry. (Hooker, J.)</p> <p>Replevin. Plaintiff brings error.</p>

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

<p>Elections — Adjournment to different polling place — Quo warranto</p> <p>The adjournment of an election in good faith from one polling-place to another is at most an irregularity, unless it prevents persons from voting or prejudices the rights of candidates; and such an irregularity will not sustain proceedings in the nature of quo warranto against the successful candidate, in the absence of any showing that if the change had not been made the result would have been different.</p>

<p>Error to Bay. (Green, J.)</p> <p>Ejectment. Plaintiffs bring error.</p>

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

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

<p>Appeal from Kalamazoo. (Mills, J.)</p> <p>Bill for divorce. Complainant appeals.</p>

<p>Error to Tuscola. (Wixson, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>Trial by jury — Jury commission.</p> <p>1. The constitutional right of trial by jury is not infringed by How. Stat. §§ 7633 — 80 which authorize jurors to be drawn by a board of jury commissioners appointed by the Governor. Nor are the principles of local self-government which underlie the Constitution.</p> <p>3. Jurors must be electors and live in the vicinage; but the Legislature can prescribe other qualifications and change the mode of choosing tliem, aud tlie officer by whom and the lists from which they are chosen.</p> <p>8. It seems that a challenge to the array will lie on the action of jury commissioners wherever at common law it would lie to the action of the sheriff or his subordinates in selecting or summoning the jury.</p> <p>4. The administration of criminal law concerns the State and not merely localities; and the selection of jurors in criminal cases is a duty that is not necessarily of a local administrative character. It may be done by officers authorized by the Legislature and appointed by the Governor; and the Legislature may require the county in which, such officers act to pay their expenses.</p>

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

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

<p>Exceptions from G ratiot. (Hart, J.)</p> <p>Information for assault.</p>

<p>Estoppel — Taxation of railway operating in other States.</p> <p>1. One is estopped from denying the truth of his own statements if his denial would mislead and prejudice another who has acted in reliance thereon; but the State, in collecting its revenue, cannot apply the rule of estoppel to citizens who have not fully reported the necessary data for assessing them, unless the citizens are acting in fraud and evasion of the law. The State seeks only to take a just propor- ■ tion from every citizen, and not to take advantage of the mistakes of tax-payers to make them pay more.</p> <p>2. The General Railroad Law of Michigan made roads that lay partly within and partly without the State, taxable on so much of their gross receipts as corresponded to the ratio of their local to their entire length. A local company was consolidated with a foreign one that controlled a number of other consolidated roads and several leased lines besides, but the corporation reported its receipts in gross, without discriminating between its own roads and those that were leased, and was assessed accordingly, as if it constituted a single line. Reid (1) that it was not estopped by its report from disputing the legality of the assessment; the proper course was for the Commissioner of Railroads to require more definite information from it as a basis of assessment; (2) the foreign corporation was not taxable upon its entire system, but only upon the Michigan road which had been consolidated therewith.</p> <p>3. Before the Michigan Tax Law of 1882 was adopted, railroad companies that had been organized under the State laws and whose roads lay wholly within or partly without the State, were taxable upon a basis fixed for Michigan roads by the General Railroad Law of 1873. And roads were permitted to consolidate with one another. Reid, however, that if the company with which consolidation had been effected was a foreign one the consolidated company could not be taxed as if its roads constituted a single line that ran partly without the State but derived its powers from the State law.</p> <p>4. Judicial action cannot be based on a postulate that in itself is a contradiction of terms.</p> <p>5. A corporation cannot be created by the joint act of several states unless by compact or treaty.</p> <p><6. Every railroad corporation has its existence and domicil within the territory of the sovereignty which creates it; and when two or more corporations created in different sovereignties are consolidated into one, the component parts bring to the new organization the powers and privileges possessed by each, however different, and the consolidated company exercises in' each jurisdiction only those powers that the constituent part formerly exercised there. And where roads lying in different states are consolidated, the Legislature of each State continues to legislate as before in respect to so much of the road as has always been within its jurisdiction, and cannot follow the consolidated company outside of tlie State. But the consolidated com. pany stands, in each state, in the place of the corporation to whose rights it succeeded there.</p>

<p>Error to Moutealm. (Y. H. Smith, J.)</p> <p>Appeal from allowance by probate commissioners. The claimant brings error.</p>

<p> Verbal warranty of note. </p> <p>1. A third person’s statement that a note offered by a purchaser is as good as money or as good as gold, is not a guaranty of its collection; and if the vendor finds it worthless, he is not bound to take measures to enforce it against the maker before proceeding against the person who answered for it.</p> <p>2. Parties may bind themselves by whatever contracts they please, if legal and feasible; one may therefore verbally answer for a note offered by another, as being as good as the money.</p>

<p>Case made from the Superior Court of Grand Eapids. (Parrish, J.)</p> <p>Case. Plaintiff brings error.</p>

<p>Error to Wayne. (Jennison, J.)</p> <p>Appeal in probate. Contestant brings error.</p>

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

<p>Railroad passenger’s ticJcet — Medical testimony.</p> <p>1. A railway passenger ticket is conclusive evidence, as between tlie passenger and the conductor, of the extent of the passenger’s right to travel. And though if the ticket is apparently good the passenger has a right to rely on it and refuse to leave the train if the conductor requires him to do so as an alternative to paying his fare, the safer way is to pay the fare and afterwards hold the company responsible for the refunding of the money so paid and for compensation for any trouble he may be put to in getting it.</p> <p>2. Medical testimony as to the possible effect on the plaintiff’s health of provoking language or vexatious circumstances is out of place in an action for a tort to which these are merely incidental.</p>

<p> Lien not lost by restatement of account. </p> <p>A lien is not lost by merely re-stating tlie account and deducting certain items.</p>

<p>Liabilities of consolidated railway companies — Injury to employees — Sideiraclcs.</p> <p>1. The “debts, liabilities and duties” of a railroad company, including their liability for injuries, attach to any company in which they are merged by consolidation. How. Stat. § 3344.</p> <p>2. The responsibility of a railroad company to its employees for the condition of its road is less strict than it would be to strangers; and an accident to an employee, involving no liability, might, if it happened to another person cause an actionable injury.</p> <p>3. Railroad employees are presumed to be aware and to take the risk of dangers from such conditions and defects in the construction of a side track as would be open to observation; and they are also expected’ to use reasonable care in examining their surroundings.</p>

<p> Drain taxes. </p> <p>1. The appointment by the judge oí probate, without notice to persons interested, of a special drain commissioner, and the action of such commissioner, without farther authority, in establishing a drain and in levying a tax for its construction, are unconstitutional, null and void. '</p> <p>2. Certiorari lies, it seems, to review drain proceedings that are not merely irregular but are void.</p>

<p>Township bridges — Raising money for repairs — Issue of fact in manda/mm proceedings.</p> <p>1. Act 98 of 1867 in empowering townships to raise money by tax or loan for repairing bridges does not wan'ant resorting to both methods at one time to raise the full amount which both together would produce. And if any voter votes for both modes of levy his ballots neutralize each other.</p> <p>2. The finding of a jury is contradictory and inconclusive where the question submitted involves matter of law as well as of fact, and the findings upon matters of fact show that there was no basis for the-conclusion which they reached upon the whole question.</p> <p>3. Facts set up by respondent in his return to an order to show cause are admitted by the relator if, when an issue is framed, they are not submitted to the jury.</p> <p>4. How. Stat. § 8666, in providing that a peremptory mandamus shall be granted at once where a verdict is found for relator, does not apply if material issues have not been submitted to the jury and found in his favor.</p> <p>5. Mandamus does not lie to compel a township to raise money to pay bonds so long as it is an open question whether the bonds are a legal obligation on the township and whether the relator is a bona fide holder of them, as those are questions for the trial court.</p>

<p>Case made after judgment from Ingham. (Gridley, J.)</p> <p>Assumpsit. Defendant had judgment.</p>

<p>Appeal from Cass.’ (A. J. Smith, J.)</p> <p>Bill to redeem. Defendants bring error.</p>

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

<p> Mandamus to advertise and sell land for taxes, </p> <p>1. Mandamus will lie to compel the recorder of a village to fulfill the duty, imposed upon him by the charter, of advertising and selling lands returned for delinquent paving taxes ; and he cannot refuse to do so on the ground that .he beiieves the action of the council in laying the particular tax to be illegal, especially if the proceedings are sufficiently fair on their face to protect ministeriaTaction, and the work has been done and the tax in a great measure paid in.</p> <p>3. Certiorari does not lie to review the validity of a village paving tax.</p>

<p>Negotiable paper — Ducuranty of coUeetion — Discounts.</p> <p>1. A guaranty of collection indorsed by tbe payees of a note passes the title thereto. i</p> <p>2. Where the face of a note is cut down by way of recoupment the deduction is not to be regarded as a payment, but as so much taken from the face of the note, and a discount is not to be allowed thereon under an agreement for such discount upon sums paid before maturity.</p>

<p>Bunks — Deposits in another’s name.</p> <p>1. A .depositor’s contract with his banker is not materially different from any other contract by which one person becomes bound to take charge of and repay another’s funds:</p> <p>2. A bank will be protected, as against the depositor, in paying out money on such terms as he has authorized.</p> <p>3. A depositor contracting with a bank for the care of his money can control his funds until he has disposed of them, no matter in what name the account is kept, so long as it is understood to be his account and has not been put beyond his control by some act that he cannot revoke. And if the contract is unwritten, its terms and character can be shown by testimony. It is not determined by the bank book, which only shows the state of the funds.</p> <p>i. Placing money or property in another’s name is not in itself an irrevocable gift to him ; much less is an arrangement for convenience between a bank and a depositor whereby the latter deposits his own money in the name of a third person but subject to his own check.</p> <p>5. In every action at law upon a contract the contest must be between the two alleged contracting parties ; a beneficiary’s right to resort to the equitable action for money had and received exists only where the parties to the contract have given him such a right as transfers the fund to his control.</p> <p>6. Where it is proper for a person suing a bank for the amount of a deposit which he made in another’s name but claims as belonging to himself, to prove his title to it, he may properly show everything connected with the origin and history of the deposit, and the other . person’s statements in derogation of his own interest.</p>

<p>Action for seduction — Order of proof — Previous fwmiUm'ities — Neglect to make complaint — Defendant’s wealth and general reputation— Statute of limitations.</p> <p>1. In an action for seduction it is within the discretion of the trial judge to allow the plaintiff, before proving the seduction, to show that there had previously been acts of improper familiarity.</p> <p>2. Plaintiff in an action for seduction claimed as part of her case that she had been gotten with child at a certain time, and that the illicit intercourse was kept up for some time afterwards. Held, that proof was admissible of acts of previous familiarity as bearing upon a previous seduction and as giving probability to her subsequent testimony that intercourse had been continuous.</p> <p>3. An action for seduction will lie where the victim’s will is overcome by the controlling influence of defendant’s, especially if he holds a relation giving him authority over her.</p> <p>4. Whether a case is of rape or of seduction bears upon the victim’s omission to make immediate outcry or complaint, but that fact does not necessarily, as matter of law, discredit the charge in a case of seduction. It is open to comment, however, by counsel and perhaps by the judge.</p> <p>5 When the truth of a charge is investigated in the light of the conduct of parties concerned, the probabilities as to what their behavior would have been if the charge had been true, must be considered.</p> <p>6. A man was sued by his adopted daughter for seduction. Meld, that she could not show, as an independent fact, that he had told her he had concealed a sum of money for her of which he wished her quietly to take possession in case he died before her.</p> <p>7. Conduct which will reasonably and naturally warrant entirely opposite deductions ought not to be shown as bearing upon the guilt of a party.</p> <p>8. Damages for seduction cannot be aggravated by evidence of what the defendant had told his victim he was worth; or by any evidence of his wealth unless perhaps such as is inferable from his general standing in the community.</p> <p>9. Defendant in a civil action for seduction cannot show, by way of defense, that his general reputation for chastity has always been good.</p> <p>10. The practice of asking instructions upon the evidence involving no question of law but relating only to the weight and credibility of the proofs, is discouraged.</p> <p>11. An infant’s right of action for seduction is not barred by the statute of limitations until after she has reached her majority, if the circumstances are such that she has to bring suit in her own name and not by another.</p>

<p>Appeal from Calhoun. (Hooker, J.)</p> <p>Bill of foreclosure and cross-bill. Complainant in cross-bill appeals.</p>

<p>Appeal from Ogemaw.' (Green, J.)</p> <p>Bill for specific performance. Complainants appeal.</p>

<p>Act 193 of 1883 — Assignment law.</p> <p>Act 193 of 1883, the purpose of which was to prevent preferences among creditors and to distribute the .debtor’s property equally, is void. It is inoperative in omitting to provide for notice to parties concerned; for any record of the proceedings and review thereof; and for any means of giving effect to its provisions. It is unconstitutional as violating (1) the limitations on judicial power, since it gives a judge at chambers power' which only a court should exercise, in the final disposition of the debtor’s properly; (2) the provision which secures the right of trial by jury, since it looks to a summary disposition of cases which necessarily turn on questions of fact; (3) the prohibition against taking property without “due process of law;” (4) the prohibition against imprisonment for debt, in that it allows a circuit judge to issue the writ of ne exeat at discretion; (5) the prohibition against impairing the obligation of contracts, since it deprives creditors of their remedies. It also attempts to exercise the questionable right of legislating upon the claims of foreign creditors, and to place them on a better footing than domestic ones: and it is as capable of being used to defraud as to protect creditors.</p>

<p>Error to Berrien. (A. J. Smith, J.)</p> <p>Case. Defendants bring error.</p>

<p>Railroad Companies — Condemnation of land — Setting aside report of commissioners — Averaging award, of damages.</p> <p>1. Petitioners for tire condemnation of land for railroad purposes can move tlie probate court to set aside tbe report of the commissioners thereon, if the latter have awarded damages so unreasonable as to indicate prejudice, partiality or a wrong basis of computation.</p> <p>2. The official report of the commissioners appointed by the probate court in proceedings to condemn land for railroad purposes should not ordinarily be outweighed by affidavits as to the value of the land and the damage thereto. Such evidence is, however, admissible on a motion to set aside the report.</p> <p>8. Commissioners in proceedings to condemn land for railway purposes are not like a common law jury, and their individual affidavits are admissible to impeach their finding or to show, like any other fact, the rule of damages on which they proceeded.</p> <p>4 An award of damages in proceedings to condemn land is not invalid for having been reached by averaging the amounts as marked by each commissioner, if the commissioners did not agree beforehand upon this mode of compromise, but merely resorted to it as a proper method of arriving at a just result, after stating to each other the amounts which they had individually fixed.</p> <p>5. The showing upon a motion to set aside an award is ordinarily made by affidavits and counter-affidavits, but it is discretionary with the court to require oral testimony and cross-examination.</p> <p>6. Lands cannot be taken for corporate uses until the necessity for doing so and the compensation have been determined. (Mich. Const. Art. xv. Sec. 9.) And mandamus to set aside an award that had been paid under protest was therefore denied where the land had been actually appropriated, since the allowance of the writ would leave the amount undetermined after the land had been taken.</p>

<p>Judicial notice — Ancient titles in Detroit — Religious corpoi'ation — Sale of church property — Injunction against co-trustees — Party.</p> <p>1. The Supreme Court of Michigan has no judicial knowledge of the contents of Detroit plats or of the location of Detroit lands, except as identified or affected by legislation or other public action.</p> <p>2. No presumption can be indulged against the lawful character of the conveyances of the “Governor and Judges” of Michigan Territory.</p> <p>3. The “ Governor and Judges ” of Michigan Territory had power to change the plan of the City of Detroit so long as they did not interfere with established rights.</p> <p>4. The plan on which Detroit was originally laid out left many triangular parcels of land which the “Governor and Judges” set aside for public purposes to be thereafter declared by the city council. In 1834 the Governor and Judges granted unreservedly to Ste. Anne’s church the use of a particular triangle for religious purposes. In 1837 the city, acting under a power conferred by its charter, exchanged certain lands with the church, and in doing so gave it the triangle. He Id, that whether the city had any title to the triangle at that time or not, it is estopped from denying its conveyance, because in 1842 it was given full legal title to the lands covered by the old plan ; and after the lapse of forty years during which the city made no adverse claim, a quit-claim of the property by the church should be sustained.</p> <p>5. A sale made by a corporation by quit-claim leaves no liability on the corporation in case the title is less than is supposed, and raises no question under the doctrine of ultra vires.</p> <p>6. After a trustee of a religious corporation has concurred in obtaining a license to sell its property he can hardly object to a sale on the ground that the corporation has no right to sell.</p> <p>7. Courts of equity cannot interfere with the action of such officers as a corporation has placed in charge of its affairs unless it exceeds their discretion or amounts to aggravated misconduct equivalent to actual or constructive fraud.</p> <p>8. A trustee cannot get an injunction against his co-trustees on an unsworn bill; and there can be no equity in his favor if he does not do what he can to restrain them speedily.</p> <p>9. In a suit to rescind the deed of a corporation the corporation itself should be complainant or should at least be a party to the record ; otherwise, when the only prayer is for a cancellation of the bargain, it is fatally defective, since that concerns the party injured only and cannot be granted without a re-payment of the money and release of securities, and the giving of proper allowances for what the purchaser may have ventured in reliance on his title.</p>

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

<p>Appeal from Wayne (Speed, J.)</p> <p>Bill of foreclqsure. Complainant appeals.</p>

<p>Constitutional law — Jury commission — Suspended sentences.</p> <p>1. Juiy commissioners appointed by the Governor under How. Stat. §§ 7623-30, are not judicial officers in the sense of the constitutional requirement (Art. xv, § 14) that “judicial officers of cities and villages shall be elected;’’ and they are not county appointees.</p> <p>2. Choosing jurymen is a matter of statutory regulation ; and any mode of choosing them is constitutional that obtains good and lawful men of defendant's vicinage from the body of the county.</p> <p>3. Suspending sentence for a reasonable time is discretionary with the judge if good cause is shown for doing so; but an indefinite suspension lasting for about nine months is unreasonable though it is not necessarily ground for setting aside the conviction.</p>

<p>Exceptions before judgment from Kent. (Montgomery, J.)</p> <p>Complaint for unlawful sale of liquor.</p>

<p>Jurors — Inspection of loous — Striking out testimony — Personal injury,</p> <p>1. Howell’s Stat. § 7584® in providing that it shall be a ground for challenge if a juror has already served in the same court within a year, excludes one who has served as talesman in a street opening case.</p> <p>2. Testimony will not be struck out on the technical objection that the question was leading if this objection was not made when the question was asked.</p> <p>8. Where testimony was admitted on condition of supplying certain proofs, and on failure to supply such proofs no motion was made to strike it out, it was held no error to let it stand.</p> <p>4. It is discretionary with a judge in an action for sidewalk injury to order the jury to inspect the place where the injury occurred; and it was held no abuse of discretion to allow them to do so six months after the injury took place.</p> <p>5. In an action’for personal injury it is competent to show in rebuttal that after the alleged injury the plaintiff was not an able-bodied man; and it is not proper to limit the witness to showing that he had no defect before the injury.</p>

<p>Error to Muskegon. (Russell, J.)</p> <p>Case. Defendants bring error.</p>

<p>Error to Kalamazoo. (Arnold, J.)</p> <p>Case. Defendant brings error.</p>

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

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

<p>Joint defendants — Judgment moated as to one — Trover on award.</p> <p>1. A judgment against two persons was, as to one of them, set aside on his motion, and in subsequent proceedings under the same declaration both defendants pleaded. Held, that as neither relied upon the former judgment as a bar, error could not be assigned on the assumption that it'had remained in force against either.</p> <p>2. An order vacating a judgment as to one of two defendants cannot, in a subsequent suit against them both for the same cause of action, be treated as merging the whole claim in a judgment against the other defendant, if court, counsel and parties have meanwhile dealt with the judgment as wholly set aside.</p> <p>3. An award stating that the right of possession and ownership 'of certain property is in a specified party is conclusive upon those questions; and in an action of trover based on the award there is no prejudicial error in refusing to charge that plaintiff can only recover on the strength of the award and not of his previous ownership. And while evidence of such ownership is immaterial its admission cannot prejudice defendant.</p> <p>4. In trover based on an award, there is no error in refusing to charge that plaintiff cannot recover more than the penalty of the submission bond, the action not being for that purpose.</p> <p>5. A replevin suit was begun by partners, and after the partnership was dissolved, but before the settlement, the matter in dispute was submitted to arbitration by one of the partners in the firm name. The other did not repudiate this action but merely said that he was not to be held liable under it. Held, that this was not enough to release him in an action of trover based on the award.</p>

<p>Timer and assumpsit on an awa/rd — Vacated judgment.</p> <p>Where trover and assumpsit were both brought on the same award, a showing- in the latter case that a judgment stipulated in the former, but afterwards vacated, had covered all damages claimed in both cases, and had been discharged by the imprisonment of the defendant in trover, was properly excluded as immaterial, not only because the judgment had been vacated, but because an imprisonment based) in part upon a claim in contract would be unlawful and could have no effect.</p>

<p>Error to Allegan. (Arnold, J.)</p> <p>Assumrsit. Defendant brings error.</p>

<p>Appeal from Kalamazoo. (Mills, J.)</p> <p>Bill to cancel mortgage. Complainants appeal.</p>

<p>Error to Tuscola. (Wixson, J.)</p> <p>Case. Defendant brings error.</p>

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

<p>Investment of ward’s moneys — Repudiation of gum'dian’s investment — Election of remedies — >Subrogation—Estoppel—Reformation of deed.</p> <p>1. Wlien a guardian, without an order of the probate court, invests the proceeds of his ward’s property in lands, for their benefit, the cestuis que trustent, on reaching their majority, can repudiate the investment and hold him or his estate for the moneys invested, or they can follow the moneys into the lands purchased, and claim the lands as against any subsequent purchaser who had notice that they were purchased with trust-money. But they cannot do both, and the election of either remedy precludes the other.</p> <p>2. A trustee who has wrongfully invested the moneys of his ward for the latter’s benefit, and whose act in doing so has been repudiated by the ward, cannot, on satisfying his ward’s claims against him for the money, be subrogated to the latter’s equities and enforce the trust for his own benefit. Neither can his heirs do so on satisfying such a claim against his estate.</p> <p>3. A ward who has repudiated an unauthorized investment of his moneys in land and has enforced his claim against his guardian for the money, cannot set up any legal or equitable claim to the land nor transfer title thereto. Nor can he ask to have the deed reformed, or empower any one else to do so.</p> <p>4 Estoppel by an election between remedies extends beyond the immediate parties thereto, and binds all who claim under them or are in privity with them.</p> <p>5. One who shows no rights under a deed has no equity ta have it reformed.</p>

<p>Equity — Enforcement of Contract — Abandonment of rights.</p> <p>A woman, was indebted upon a promissory note signed by berself and another person jointly. Her creditor began suit upon it, but she secured its payment by giving him a contract whereby he was 'to have the use of certain farm property, in which she had a life-interest, until the reasonable rents thereof should pay the debt. He however went on with his suit without the knowledge of the defendants, and took judgment. He leased the farm on shares, but his tenant finally left, selling to the woman his interest in the crops -then growing. The creditor then levied execution on the property of the joint maker, but the latter obtained a decree forever staying collection. In this proceeding the woman was not made a party, and was therefore not bound by it. The creditor in answering it stated that he had abandoned all his rights, under the contract, to the woman, and that she had continued to occupy the farm, but he afterward filed a bill against her for the enforcement of the contract. Held, that having abandoned his rights therein, his bill would not lie.</p>

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

<p>Appeal from Washtenaw. (Joslyn, J.)</p> <p>Specific performance. Defendants appeal.</p>

<p>Executor’s account — Cost of monument.</p> <p>An executor who had in good faith advanced money from the funds of the estate in order to enable the widow to put up a suitable monument, should have been allowed the amount on settling his accounts.</p>

Case made after judgment from. Washtenaw. (Joslyn, J.) Appeal from probate order disallowing the account of executrix. The estate had judgment below. Affirmed.

<p>Error to Washtenaw. (Joslyn, J.)</p> <p>Assumpsit. Defendant brings error.</p>

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

<p>Trover for property sold on execution — Consolidated causes of action— Bes judicata — Swtplus after execution sale.</p> <p>1. Successive conversions by unlawful sales on execution need, not be consolidated in one action based on the original levy, but may be sued for separately.</p> <p>2. Where the same transaction is involved in two cases the mere verdict of the jury in one of them, cannot be shown in the other for the purpose of fixing the quality of the transaction. But the record in the former may operate as a bar in the latter.</p> <p>8. Sales and similar dispositions of property in prejudice of creditors may nevertheless be valid as between the parties thereto; and when the creditor is satisfied by a sale of such property on execution, any surplus belongs to the vendee.</p>

<p>Intoxicating liquors — Saloon licenses — Local regulation.</p> <p>1. The charter of Lansing, which was adopted while it was still unconstitutional to license the sale of liquor, classifies all persons who sell by the glass beverages that are usually sold in a saloon as saloon-keepers, and requires them to take out a license, but adds a proviso that the act shall not be construed as licensing the sale of intoxicating liquors. Held-, that an ordinance which exacted payment of $100 “for each saloon license ” was nevertheless valid, as a saloon is not necessarily or exclusively a place for liquor selling. And the imposition of a heavy fee maybe proper where the saloon-keeper is placed under no restrictions as to the stock he deals in.</p> <p>2. Where the power to fix a license fee is given by a law to a municipal council, its discretion in fixing the amount is not reviewable by the courts.</p> <p>3. The enactment of a liquor-tax law does not estop the State from empowering municipal councils to further regulate the local sale of , liquor by requiring saloon-keepers to take out licenses.</p>

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

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

<p> Governor’s power to remove State officers. </p> <p>1. An information in quo warranto proceedings charged official misconduct and neglect of duty. The plea denied the charge. A replication was filed which merely reiterated the charges contained in the information, without specifying the acts of neglect and misconduct relied upon. It seems that such a replication is open to demurrer.</p> <p>2. How. Slat. § 651, permitting the Governor to remove any State or county officer except the State treasurer and judges, is void, because at the time it was adopted the Governor had no judicial power under the Constitution.</p> <p>3. An unconstitutional statute does not become valid by the amendment of the Constitution.</p> <p>4. Constitutional provisions must be construed with reference to each other when relating to the same subject matter.</p> <p>5. The Governor’s power of removal (Mich. Const, art. xii. § 8) can only be exercised for the specific causes mentioned in the Constitution, and upon charges which shall specify the particular acts or neglect relied on to make out the cause alleged; and the respondent must have notice of these charges and specific allegation^ and reasonable notice of a time and place when and where he will have an opportunity for a hearing thereon, upon which he may produce proofs. And the Governor has judicial power to examine into and pass upon these charges.</p>

<p>Partnership accounting — Interest.</p> <p>1. On appeal from a decree for an accounting the appellant’s objections only will be considered.</p> <p>2. Any reasonable expense incurred, by either member of a firm, with or without the consent of the rest, in the legitimate prosecution of the partnership business, and for the benefit of the parties, should be allowed upon a partnership accounting. So held of the expense of exploring premises leased to the firm for mining.</p> <p>3. Interest does not run on an unsettled or unliquidated account unless there is au express or clearly implied agreement that it shall do so.</p> <p>4. Interest is not allowed in a partnership accounting upon moneys owing between the firm and either of the partners, or between each other, in partnership transactions before dissolution, unless by virtue of some understanding or usage, or some equity implying an agreement to pay it.</p>

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

<p>Promise to pay for goods supplied to (mother.</p> <p>1. A promise to pay for such goods as may be furnished to a third person is an original and not a collateral promise, is based on a sufficient consideration, and is not within the Statute of Frauds as a promise to pay the debt or default of another; it need not therefore be in writing.</p> <p>2. Where testimony, though inconsistent, has some tendency in places to sustain the declaration, its weight and effect are for the jury alone.</p> <p>3. Action lies on a promise to pay for goods to be furnished to another if credit therefor was given to the person promising and not at all to the person receiving the goods.</p> <p>4. Charging goods to the person receiving them is not conclusive evidence that the vendor relied upon him to pay for them and not upon some other person who had promised to do so ; especially, if the form of the entry is “John Doe, by order of Richard Roe.”</p>

<p>Error to Midland. (Gfridley, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>Error to Kalamazoo. (Mills, J.)</p> <p>Appeal from probate. ■ Proponent brings error.</p>

<p>Error to Calhoun. (Hooker, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>Municipal corporations — Obtaining land for street uses.</p> <p>The charter of Saginaw provides that when it becomes necessary to take private property for a street the council shall first treat with the owner before taking steps to condemn it. Held, that this requirement is jurisdictional; and that merely receiving a proposal from the owner and tabling.it is insufficient; acceptance or a counter proposal is necessary.</p>

<p>Replevin of merchandise before delivery — Rsioppel.</p> <p>1. A merchant supposing that an insolvent customer to whom he had forwarded goods had received and appropriated them, made an affidavit as a creditor under the assignment. But the goods had not been received. Held, that the affidavit did not estop him from replevying them from the carrier.</p> <p>2. Title by sale never passes absolutely and for all purposes on delivery without payment, except in sales on credit.</p> <p>3. One who makes a cash sale subject to acceptance can replevy the goods from a common carrier, or from any one, unless it be a bona fide purchaser, so long as the buyer has neither accepted nor paid for them, or received them, or had the right to compel delivery. And if payment was due at once the mere acquisition of possession by himself or his assignee could not cut off the vendor’s right.</p> <p>4. An assignee of an insolvent cannot claim anything to which his assignor had no right, and is not by virtue of the assignment, a bona fide purchaser of goods which the insolvent could not rightfully have claimed.</p>

<p>Appeal from Marquette. (Grant, J.)</p> <p>Bill to enforce lien. Defendant appeals.</p>

<p>Abatement of nuisance — Basement stairway on street.</p> <p>1. A basement staircase opening in a sidewalk is not per se a nuisance; and permission from the municipal council to make one would itself rebut any presumption that it was.</p> <p>3. A municipal council can institute proceedings for the abatement of a sidewalk opening as a public nuisance, but it cannot decide that it is so, as that is a question to be tried on proper accusation in court, the maintenance of a nuisance being a public ofEense.</p> <p>3. Revocation of a license to appropriate part of a street to private use does not immediately make the licensee a wrong-doer.</p> <p>4. Injunction lies to restrain a city from destroying a structure as a nuisance before it has been condemned as illegal.</p>

<p>Error to Kalamazoo. (Mills, J.)</p> <p>■ Trover. Defendants bring error.</p>

<p>Appeal from Ingham. (Gridley, J.)</p> <p>Replevin. Defendant brings error.</p>

<p>Certiorari — Question of easts.</p> <p>1. Certiorari was improvidently allowed to review the finding of a circuit court commissioner upon an objection to a small excess in the allowance of costs.</p> <p>2. A circuit court commissioner’s findings ought not to be in all respects reversed on certiorari upon objections that only concern the allowance of costs.</p>

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

<p>Payment — Evidence of breach of warranty.</p> <p>1. A vendor cannot dispute that he ha§ received the assignment of a . mortgage in payment where the facts are that he himself proposed to accept it as such, and has referred to it in the negotiations as payment, reserving only the right to satisfy himself as to the value of the security ; has had a reasonable time and opportunity for making such examination; and has finally notified the purchaser that he must make up any deficiency.</p> <p>2. Evidence of a breach of the warranty of securities received in payment is inadmissible in an action of assumpsit as for the amount to • be paid.</p>

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

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

<p>Error to Wayne. (Jennison, J.)</p> <p>Proceedings to recover possession. Complainants bring error.</p>

<p>Sale of goods — Inadequacy of Price — Concealment,</p> <p>Concealment of a sale of goods from creditors is not necessarily a badge of fraud, especially if necessary to prevent sacrifices; neither is a sale of selected goods at a discount of thirty-five per cent, if neither vendor nor purchaser supposes the concern to be insolvent, and the only purpose is to raise money to meet pressing demands.</p>

<p>Appeal from Wayne. (Chambers, J.)</p> <p>Accounting. Complainant appeals.</p>

<p>Striking plea from, fies — Common law privileges of persons charged with cñme — Autrefois acquit — Discharge of jury.</p> <p>1. The purpose of a plea is to tender an issue upon some fact not already in the case that proof may be taken in respect to it if the issue is accepted. But if the fact is in the case, and especially if it is so conclusively established by the record that no contrary averment would be admissible, a plea setting up the fact would be idle, and, instead of demurring to it, a motion should be made to strike it from the flies.</p> <p>2. Constitutional provisions must he interpreted with reference to the times and circumstances under which the constitution was formed, and the general spirit of the times and the sentiments prevailing among the people.</p> <p>3. It is contrary to the spirit of the Michigan Constitution of 1850 to narrow the common-law privileges of accused persons.</p> <p>4 The constitutional provision that “ no person, after acquittal upon the merits, shall be tried for the same offense,” (Mich. Const, art. vi, §29,) was in enlargement of the common-law privileges of accused persons, which did not extend to making a trial upon an insufficient charge a bar to a subsequent trial upon an accusation made in due form. It has no application to a case in which the jury have disagreed, and have been dischai'ged from farther consideration thereof.</p> <p>5. The discharge of a jury, upon their reporting that they cannot agree, implies that the judge assents to their conclusion that they are unable to agree, and that he decides it to be necessary to discharge them without a verdict. And this decision is conclusive. But such a discharge is no bar to a new trial.</p>

<p>Horse stealing — Statutory penalty — Plea of guilty.</p> <p>1. A plea of guilty to a charge of the larceny of several articles as one act and for a use to which all were to he put, is an admission of the larceny of all of them.</p> <p>2. A conviction for horse-stealing will not warrant the special statutory penalty for that oilense if the information does not refer to the statute imposing it; and if inflicted the judgment must he reversed as to the excess.</p>

<p>Error to Ionia. (V. EL. Smith, J.)</p> <p>Assault with intent to murder.</p>

<p>Exceptions before judgment from tbe Recorder’s Court of Detroit. (Swift, J.)</p> <p>Breach of the peace.</p>

<p>Slander — Nonsuit—Affidavits to hold to bail — Bill of particulars, m</p> <p>Nonsuit cannot be ordered for failure to file a bill of particulars in an action for slander if the action was begun by affidavits to hold to bail, in which the facts were fully set out; no more can be done than to limit the plaintiff to tlie cases set out in the affidavits.</p>

<p>Error to Ionia. (Y. H. Smith, J.)</p> <p>Appeal in probate. Plaintiff brings error.</p>

<p>Appeal from Washtenaw. (Joslyn, J.)</p> <p>Creditor’s bill. Defendant appeals.</p>

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

<p>Agency — Special instructions — Requests to charge.</p> <p>1. A book-keeper who bad some discretion in small sales was directed to collect a balance due upon a particular sale or to get the goods. Held, that this did not give him such standing as an agent that his employer would be bound by his neglect to warn a third person, to whom the purchaser sold the goods, that there was an unpaid claim upon them.</p> <p>2. Requests to charge are properly refused where there is no sufficient testimony on which to base them.</p>

<p>Case made from Kent. (Montgomery, J.)</p> <p>Proceedings to recover possession.. Complainant had judgment.</p>

<p>Divorce — Costs on appeal.</p> <p>The dismissal of a divorce hill filed by the wife and alleging cruelty was affirmed where both parties were apparently to blame and there was no reason why they should not be reconciled; but the affirmance was not only without costs as against the complainant appellant, but an allowance to her solicitor for expenses in the Supreme Court was decreed.</p>

<p>Forgery of mortgage — Acknowledgment and attestation — Proof of contents of document — Fkidence—Information.</p> <p>1. Forgery may bé committed with respect to a mortgage; and for the-purpose of a prosecution the acknowledgment may be treated as part of the instrument, though neither an acknowledgment nor witnesses are needed to make'the mortgage binding as security.</p> <p>2; The forgery and uttering of a bond or note and of the mortgage which secures it are connected transactions and can be joined in the same information.</p> <p>3. On a prosecution for the forgery of a mortgage with the purpose of' defrauding, everything tending to explain the fraud and its extent and character can be shown, such as matters relating to the ownership and value of the premises which the mortgage purported to cover. And respondent’s representation to the persons defrauded that he was the owner of the mortgaged property, together with the preparation of the papers, their retention for signature, and their return signed, constitute a sufficient chain of facts to prove forgery as well as uttering.</p> <p>4 In prosecuting for the forgery of an instrument it may be shown by the person named as taking the acknowledgment that he did not sign-the paper; and the same may be shown by the person purporting to be a subscribing witness even though he be not named in the-information.</p> <p>5. A contract is complete as such without subscribing witnesses, and in setting out its purport in an information the names of witnesses need; not be given.</p> <p>6. A witness who has sufficiently explained his failure to preserve a document may properly be allowed to state its contents.</p> <p>7. Where the genuineness of an instrument is contested, the sheriff’s testimony that he is unable to find or hear of any such person as purports to have witnessed it, is admissible as tending to show that the attestation was fictitious; the extent of the sheriff’s search and opportunities affects the weight of his testimony, but not its competency.</p>

<p>Adultery — Aets of intimacy — Particeps criminis.</p> <p>1. In a prosecution for adultery acts of familiarity committed two years before are too remote to be put in evidence. But acts witbin a short time before and very soon after the act complained of, if establishing a continuous intimacy, may be shown.</p> <p>2. The woman with whom one is charged with committing adultery is a competent witness for the People as well as the respondent, unless she declines to criminate herself.</p> <p>3. It is error to charge that the omission of a person on trial for adultery to summon the other party to the act as a witness, must be taken against him, especially if there is nothing to show that respondent knows the latter’s whereabouts.</p>

<p>Error to Schoolcraft. (Steere, J.)</p> <p>Complaint for violation of liquor law. Respondent brings error.</p>

<p>Error to Wayne. (Jennison, J.)</p> <p>Nape. Respondent brings error.</p>

<p>Certiorari to Wayne. (Jennison, J.)</p> <p>Bastardy. Respondent brings error.</p>

<p>Summons while outside the jurisdiction — Mandamus.</p> <p>1. Mandamus lies to set aside the service of a summons if made upon one who at the time is outside of the jurisdiction in which he lives, and is there for the sole purpose of attending as a necessary witness in other cases.</p> <p>2. Costs are not allowed on issuing mandamus if no intentional wrong on respondent’s part is charged or appears.</p>

<p>Divorce — Estoppel— Extreme cruelty — Dower.</p> <p>1. A party to a divorce suit is not estopped as to the main issue by a decree entered by his own procurement, since collusive divorces are unlawful.</p> <p>2. It is extreme cruelty to turn a wife' and her daughter out of doors without cause, and to make their separation the condition of taking the wife back again.</p> <p>$. A woman who obtains a divorce cannot be deprived, without her consent, of her dower right.</p>

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

<p>Appeal from Lenawee. (Howell, J.)</p> <p>Divorce bill. Complainant appeals.</p>

<p> Assessment of legacies. </p> <p>1. A legatee cannot, in Michigan, be assessed for a legacy not yet due and still in the hands of executors; all undistributed estate must be assessed to the executor. Act 9 of 1889, sec. 11.</p> <p>9. When the assessment of a particular class of property is clearly identified and separable, the question of the liability of such property to the assessment can be raised in an action to recover back the amount of the tax after paying it under protest.</p>

<p>Assault — Reputation—Expert’s fees — Damages.</p> <p>1. Where a person charged with assault has been allowed to show that his reputation is that of a peaceable and law-abiding citizen, he cannot complain that he has not been allowed to prove by his neighbors that it was not that of a man who would be likely to commit such an assault.</p> <p>2. It may be shown on cross-examination of an expert that he was paid $25 for his attendance; but it would also be proper for the court to charge that there was nothing discreditable in the fact.</p> <p>3. A declaration for assault set out circumstances of special injury, but did not claim special damages. The judge charged that exemplary damages might be awarded. Held, that though the phrase was liable to mislead, there was no reason to think the jury were misled where the context of the charge showed that they were not left to give damages at discretion but only in view of the willfulness and malice of defendant’s act, the actual damages from which could not be accurately computed.</p>

<p>Bill to set aside mortgage — Parties.</p> <p>A bill to set aside a mortgage made by a corporation, is demurrable for want of parties if it impleads tbe foreclosure purchaser as defendant and does not implead the corporation.</p>

<p>Garnishment — Disturbance of mortgagees possession.</p> <p>1. The right of a mortgagee of chattels to take them into his own possession is part of his security, and a contract right; and nothing afterwards done by or against the mortgager can affect it.</p> <p>S. The possession of a mortgagee of chattels cannot ordinarily be disturbed by garnishment process for the sake of reaching a surplus after the lien is satisfied ; and the receiver provided for by How. Stat. § 8065 can, at most, exercise no greater power over such chattels than a sheriff could in levying execution.</p> <p>8. A judgment creditor can sell, on execution, the debtor’s interest in chattels mortgaged by him, and can take temporary possession of such chattels for the purpose of a levy, when they are in the mortgagee’s hands. But the levy must be subordinate to the mortgagee’s right, and if sale is made without first paying oif the mortgage, it must be a sale of the goods in gross, subject to the mortgagee’s lien.</p> <p>4. The receiver provided for in garnishment proceedings to take possession of chattels mortgaged by the principal debtor but in the hands of the mortgagee (How. Stat. § 8065} may properly be empowered to examine and inventory the property for the purposes of an intelligent sale; but he must give bond and all his proceedings must be at the experise of the fund realized on the sale, and not at that of the mortgagee. And no sale can be made unless more than the mortgage secures can be realized, and if made at all, it must be a sale in gross, subject to the mortgage lien, and not a sale in parcels.</p>

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

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

<p> Affidavit f,‘or capias ad, respondendum. </p> <p>1. An affidavit for a capias ad respondendum, or for any writ that will deprive one of his liberty, must set forth in detail the facts and circumstances on which it rests, and not merely inferences and conclusions from such facts; and the facts must be within deponent’s personal knowledge.</p> <p>2. An affidavit to hold to bail must be of the same legal quality, as evidence, as would be required at the trial to establish the facts relied on as the ground of arrest.</p> <p>3. Statements in an affidavit for a capias ad respondendum that defendant, when he made certain representations as to his financial condition was not worth enough to pay his debts and was insolvent and held his property subject to mortgages which, as deponent believed, would be the full value of his property, are too indefinite to amount •to legal proof.</p>

<p>Bill to clea/r tide — Yoid sale for special tax.</p> <p>A void conveyance of property to satisfy a special sewer assessment establishes a cloud on title which the owner and occupant of the premises cannot compel the municipality to prosecute at law; and he can maintain a bill to clear title. »</p>

<p>Beraiee of summons — Proof of assignment.</p> <p>1. A party to a suit cannot serve the summons therein himself.</p> <p>3. A hill of sale of an account if made, signed and witnessed in another state, is not competent proof of its assignment to a party suing it.</p> <p>3. New trial is not granted on reversal if the lower court has no jurisdiction.</p>

<p>Adverse possession — Delivery of deed.</p> <p>1. A husband cannot hold adversely to his wife premises of which they are in joint occupancy as a family.</p> <p>2. The record of a deed is not conclusive proof of its delivery.</p>

<p>Error to the Superior Court of Detroit. (Chipman, J.)</p> <p>Debt. Defendants bring error. •</p>

<p> Refusal to pay alimony. </p> <p>1. The decision of the trial court as to the amount of temporary alimony to be allowed in a divorce suit should be conclusive unless the discretion of the court in making the allowance has been abused.</p> <p>2. Merely technical irregularities in the proceedings of the complainant in a divorce suit will not excuse non-compliance with an order to pay temporary alimony, or defeat its enforcement.</p> <p>3. The objection that the jurat in the proof of service is defective is one that should be made in the trial court ; otherwise it will not be heard on appeal unless the defect has caused injustice.</p> <p>4. It seems that the injunction prohibiting a defendant in divorce from mortgaging his property, does not restrain him from mortgaging real estate aside from his homestead for the purpose of raising money to pay alimony.</p>

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

<p>Error to Clinton. (Y. H. Smith, J.)</p> <p>Trespass. Plaintiff brings error.</p>

<p> Costs dependent on judgment. </p> <p>Action was brought for a personal assault and the conversion of a buggy, in one count, and judgment being recovered for $75, the court gave costs to defendant on the ground that the recovery for the assault was for less than $50. Held, error, there being no separate finding on the value of the buggy, nor any certainty that it was included in the verdict, or that if it was, the jury considered it worth more than $25.</p>

<p>Error to Manistee. (Judkins, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>Error to Manistee. (Judkins, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p> Sentences to take effect in future. </p> <p>A sentence to a term of confinement to begin after an interval cannot be sustained if it is uncertain and indefinite, and subject to undefined and uncertain contingencies.</p>

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

<p>Error to Alpena. (Emeriek, J.)</p> <p>Case. Plaintiff brings error.</p>

<p>Adverse possession — Estoppel—Bower.</p> <p>1. Adverse possession is held as against one’s grantor by one who has taken a warranty deed of the premises in reliance on the record title and in ignorance of any life-lease outstanding in the grantor.</p> <p>2. Where a grantor on giving a warranty deed, delivers to the grantee an outstanding life-lease held by him, he is estopped from claiming afterward that the deed did not convey the interest held under the lease; and so are all who claim in privity with the grantor.</p> <p>8. No inchoate right of dower attaches to land held by a married couple under a life-lease from the husband’s father, even though the latter has died and his only remaining heir has quitclaimed to the husband.</p>

<p>Estate of decedent — Homestead—Partition— Widow’s right to occupy premises.</p> <p>1. The homestead right does not attach in favor of a widow and children unless the estate is insolvent and in debt; and if it is not, it goes to the heirs at once, subject to the widow’s right of dower.</p> <p>2. Where a decedent’s estate is subject to a homestead right in favor of his widow and minor children, but is indivisible and below the homestead allowance in value, it cannot be sold in partition proceedings.</p> <p>S. The constitutional provisions for the benefit of widows and minor heirs are not supplemented by any statute giving them effect in cases where the estate, while exceeding the homestead exemption in value, is indivisible and cannot be partitioned and the widow herself is the only creditor. And if the heirs are not in occupation and seek partition the administrator may properly take possession and collect rents, and apply them to the payment of the widow’s claim; and if she herself occupies the premises she must account for two-thirds of the rental value, which may also be applied on the debt to her. But she is entitled, as the administrator would be, to the amount of necessary expenditures made by her for repairs, taxes, etc. And in a suit to which she and the heirs are parties, if there are no other creditors, this may be ordered without impleading the administrator.</p> <p>4 A widow’s right to occupy the premises left by her husband continues until her dower is assigned or measures are taken to partition the estate; and it is not affected by the removal of the decedent’s minor heirs by their guardian.</p>

<p>Filing MU begins suit — Death of party — Petition of revivor.</p> <p>1. The rule that a suit ia chaucery begius for most purposes with the filing of the bill, applies where a defendant who has not answered dies, and the suit is revived by petition against his administrator.</p> <p>2. Notices lis pendens and affidavits to bring in absentees may be filed as soon as the bill is filed in the suit to which they are incident.</p> <p>3. The rights of a firm under a mortgage held by it are not affected by the purchase of the equity of redemption by one of the partners for himself.</p>

<p>Pleading — Misjoind&r—Construction of counts — Demurrer—Individual damages.</p> <p>1. A. count charging the entry, on pretext of a license, upon premises not covered by it is a count in trespass, if anything; and if it does not set up any consequential damages it will not sustain a recovery.</p> <p>2. The objection of misjoinder of counts should be disposed of at the outset of the trial and the plaintiff made to elect between them instead ■ of being allowed to go over the whole range of testimony without doing so.</p> <p>8. In an action by a tenant against his landlord a count for occupying more of plaintiff’s space than had been agreed on for making certain improvements, and for interrupting his business longer than was necessary, is hardly a count in assumpsit even though the evidence to sup port it must show a breach of contract; if good at all it is as a count sounding in case.</p> <p>4. A single count can cover but one cause of action.</p> <p>5. In an action by a tenant against his landlord for interference with the former’s possession a count which rests the whole ground of complaint on a continuous right of possession as lessee, and enumerates various acts inconsistent therewith, calls for a showing of such a continuous leasehold right as alleged, as such right is material; the absence of such showing is fatal, and excludes from the case everything that depends on the count.</p> <p>6. In an action for interference with rights, counts are demurrable that do not show the extent of plaintiff’s rights and how they have been impaired; and though in the absence of a demurrer they are not considered fatally defective their effect must be confined to what it would have been if they had been properly framed. This applies to actions ' on the case as well as to those upon contract.</p> <p>7. In an action on the case for the disturbance of rights held under a contract of lease, any one who has rights of possession derived from the lease can sue for their disturbance and recover his actual damages.</p> <p>8. Failure to plead in abatement for non-joinder does not enlarge the personal right of recovery of the party bringing suit.</p>