Volume 54 — Michigan Reports

<p>Sale of personalty — Transfer of title.</p> <p>1. Tlie presumption that title does not pass upon a sale so long as anything remains to be done to determine the sum to be paid, is not conclusive, but may be overcome by such facts and circumstances as indicate a contrary intent in the parties, and the intent is a question of fact and not of law.</p> <p>2. Where money has been paid upon a sale of personalty that has been set apart for the purchaser by examination and estimate of its quantity, the fact that it must be further inspected in order to determine how much remains to be paid, is not inconsistent with the purpose that the title should pass upon the partial payment.</p> <p>3. Title may pass without delivery, if the property sold is sufficiently identified and even if something remains to be done to fit it for delivery.</p> <p>4. The delivery made upon the sale of goods is sufficient, if it is all that the contract of sale contemplated.</p>

<p>Error to the Superior Court of Grand Rapids. (Parrish, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>Error to Montcalm. (V. H. Smith, J.)</p> <p>Replevin. Plaintiff brings error.</p>

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

<p>Perjury by an accused person testifying in Ms own behalf — Certiorari as to plea of guilty — Suspended sentence.</p> <p>1. Where an information alleges that the respondent appeared as a witness “on Ids own behalf ” no other statement that he had been allowed to testify “ at his own request ” (How. Stat. § 7544) is necessary.</p> <p>2. False swearing in one’s own defense, if it amounts to perjury, is not excused by the fact that it may have been made immaterial by other testimony whereby the witness’had already convicted himself.</p> <p>3. A circuit judge’s return to a writ of certiorari issued to ascertain whether or not a plea of guilty was voluntary is conclusive as to the fact, of which the judge is required to satisfy himself by private examination.</p> <p>4. Where an affidavit for a certiorari to determine whether a plea of guilty was voluntary set forth that the prosecuting attorney had procured it by holding out hopes of leniency, the judge, in making return to the writ, properly attached the prosecuting attorney’s affidavit that he had in no way approached the accused.</p> <p>5. The pardoning power in Michigan belongs to the Governor alone; no judge can exercise it by indefinitely suspending the sentence ofia convicted criminal. And the presentation to a judge of any petition for such suspension is a grave impropriety.</p> <p>6. Judgment on a plea of guilty should be set aside if the plea was made in consequence.of any intimation from the judge that the sentence would be more severe in case of conviction upon a trial. And it should be set aside, even if the intimation was hot by way of threat, but the punishment was severe. It need not be, however, if the judge, in answer to importunities, has only shown a disposition to inflict a milder punishment on confession of guilt, and has done so. But n» such intimation, however guarded, is proper.</p> <p>7. A prisoner who lets his plea of guilty stand after a full examination by the judge as to whether it was voluntary, and a frank assurance from him that he must inflict some punishment by way of example, cannot complain that his plea was obtained by raising false hopes of leniency.</p>

<p>Appeal from Washtenaw. (Joslyn, J.)</p> <p>Bill to establish lien. Defendant appeals.</p>

<p>Nonsuit — Set-off.</p> <p>Whether nonsuit can be taken after set-off has been pleaded and defendant has claimed judgment for a balance — Q. Order permitting it affirmed by equal division.</p>

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

<p>Cloud on title to joint interest — Statute of Frauds.</p> <p>A defaulting officer quitclaimed to one of the sureties on his official bond the entire title to lands in which another person had a joint interest with himself, the grantee assuring him that his conveyance carried his own title only and that the interests of other persons could be arranged afterwards. Held, that the owner of the joint interest could compel the grantee, by bill in equity, to convey to him his interest; and that the grantee could not plead the Statute of Frauds.</p>

<p>Appeal from Tuscola. (Wixson, J.)</p> <p>Foreclosure bill. Complainant appeals.</p>

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

<p>Lease — Action for rent — Parties—Evidence of lease.</p> <p>1. In an action for tlie use and occupation of premises under the lease of a right of way it is no defense that other persons also had a right of way if the right was in neither case exclusive; nor would such other persons be necessary parties to the action.</p> <p>2. In an action for rent of a right of way over land to which defendant claimed equitable title, it is proper to show that defendant had told one of his own tenants that he had the right to use the premises for passage; and if the purpose of such evidence is merely to show that defendant used the premises and obtained the right to use them from the plaintiff, it is immaterial whether the lease was or was not in writing, and the testimony is not open to the objection that the lease itself is the best evidence.</p>

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

<p>Deed — Construction of descriptive clauses.</p> <p>1. A description in a deed which gives a part of the boundary as'" thepce running to the rear of the said ” land, does not necessarily mean that the granted parcel is bounded by the rear line of the land referred to, but may simply indicate the direction of the boundary, as if the word “ towards ” were used instead of “ to.”</p> <p>. 2. Every word in a deed must, if possible, be given effect and harmonized with all the rest.</p> <p>3. Rules of construction are only for reaching the probable intent of the instrument construed, and are necessarily flexible.</p> <p>4. The statement of quantity in the descriptive clause of a deed may properly bo taken as controlling where the circumstances show that it is the particular least likely to be wrong, and where the description is ambiguous or indefinite in respect to fixed lines and monuments.</p> <p>5. Negotiations for a sale of laud, including a bond for its transfer, are merged in the deed thereof; and while the bond cannot contradict the deed it is proper to resort to it for an explanation of ambiguities therein.</p> <p>6. In ejectment for land which defendant claims was not included in the deed under which plaintiff's title is asserted, the plaintiff, if the deed is ambiguous, can show such conjoint acts of the parties thereto as tend to show their understanding of the location of the boundary and that stakes placed by them were so placed to define it.</p> <p>7. Declarations by an original grantee before parting with his title may be shown in an action of ejectment brought by parties claiming under him, if adverse to the claims made by them.</p> <p>8. Plaintiff in ejectment is entitled to a judgment for so much of the land as he shows title to, even though a larger quantity is in dispute.</p>

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

<p>Negligence of register of deeds — Pleading—Evidence.</p> <p>1. Damages for negligence are recoverable against a register of deeds ■who undertakes to furnish plaintiff a full abstract of the title to lands which the latter desires to purchase if, in consequence of the careless omission therefrom of any mention of a particular incumbrance the purchaser is put to additional expense to perfect his title.</p> <p>2. Record entries in the office of a register of deeds, whether in his own handwriting or not, are competent evidence in an action against him for negligence in failing to give information of the matters of record.</p> <p>3. Anything outside of the facts necessary to state a cause of action is surplusage; the necessary facts, however, must be stated.</p> <p>4. A memorandum upon an abstract of title in the words “ examined to date, Nov. 15, 1875,” and signed by the register of deeds, whether a certificate or not, is admissible as res gestae in an action against the register for negligence in carrying out an agreement to furnish a full abstract.</p> <p>5. The introduction of the words “falsely and fraudulently” as well as the words “carelessly and negligently” is surplusage in a count the gravamen of which is expressed to be negligence merely.</p> <p>6. A count in a declaration must be construed as an entirety in ascertaining what its gravamen is.</p> <p>7. The allegation of a non-feasance instead of a misfeasance marks the difference between an allegation of negligence and one of fraud.</p>

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

<p>Replevin — Demand.</p> <p>Demand is necessary before bringing replevin for an article which defendant has borrowed from one who did not know whose it was and did not claim ownership, but who found it on his premises, where it had been put for safety long before by another stranger to the title who found it exposed near by.</p>

<p>Motion to dismiss appeal.</p>

<p>Appeal from Saginaw. (Gage, J.)</p> <p>Bill to compel delivery of deed. Complainant appeals.</p>

<p> Rescission of land contract. </p> <p>1. A man had a contract from his brother for certain land, the vendor reserving the right to declare it void if aDy payment was a month overdue. The vendee was to pay all taxes. The contract was in duplicate. No one held continuous possession of the land. Only one payment was made on the contract and several years later the vendor, in furnishing a tax-list of his lands, included the property-in question as if it were land upon which it was his duty to pay the taxes, distinguishing it from some other land on which others ought to pay. After the death of both parties both copies of the contract were found among the vendor’s papers, and his administrators filed a claim against the vendee’s estate for the'amount unpaid on the contract. Held, that on the facts above stated they did not make out a case; the facts indicated that the contract had been rescinded.</p> <p>2. A judge’s reasons for an instruction to the jury are immaterial if the instruction is warranted.</p>

<p>Agency — Conversion by sale on execution — Fixtures.</p> <p>1. The general agent and manager of a mining company is presumably empowered to sell its personal property.</p> <p>2. The sale on execution of personal property belonging to a third person amounts to a conversion, whether the officer making sale removes it or not.</p> <p>3. Ordinary movable office furniture and ordinary vehicles are not fixtures, and the question whether personal property in use about a mine can be so regarded, is a question of the intent with which it was attached to the freehold.</p> <p>4. Personal property that can be removed from the land cannot be part of the realty, when the owner does not also own the land.</p>

<p>Action at law on partnership obligation — Proof of set off.</p> <p>1. An obligation legal in form can be sued at law; and a note by one partner to another, even if made to him as a trustee for the firm’s benefit, can be sued at law according to its terms, and the defense that it is a partnership matter must either be made at law or under proceedings brought by defendant in equity to establish it.</p> <p>2. The burden of proving set-offs is always on the defendant who desires to establish them; and it does not fall on plaintiff even where the suit ■is on an obligation that has been received in consideration of tho ■renewal of tho set-offs.</p>

<p>Dismissal of appeal — Settlement of case — Costs.</p> <p>1. Dismissal of an appeal on tlie ground that appellees had had no notice of the settlement of the case, was denied where it appeared that it was settled in. good faith, and that they knew of the proceedings and might have appeared.</p> <p>2. Where a case was imperfectly settled in consequence of the willlul or negligent absence of the appellees, it was remanded for settlement ■subject to a charge against the appellees on final decree of all costs resulting from their neglect to raise objection until after the case aa settled had been printed.</p>

<p> Right to inspect public records. </p> <p>Mandamus lies to compel a county treasurer to permit the inspection of liquor bonds filed in his office.</p>

<p>Misapplication of trust moneys — Recovery by owner.</p> <p>1. One who has left moneys in trust in the hands of a person who has misapplied them, cannot recover them from the latter’s assignee or from a third person unless he can substantially identify them in the hands of the person whom he seeks to charge.</p> <p>2. Money deposited on general account and not left as a special deposit becomes the money of the bank, and the bank is then the depositor’s-debtor for the - amount.</p>

<p>Boundaries — Surveys and re-surveys — Proofs.</p> <p>1. Two official surveys having resulted differently the question in ejectment was the real location of a section line. Held, proper to show that a surveyor who had helped to run the original line, had again run it in laying out village lots, while the corner-post and witness-trees were still standing; and that afterwards a grantee had built a fence along the line so run, and this fence was understood in the neighborhood to indicate that line.</p> <p>2. A re survey was had when the evidences of the original survey had nearly disappeared, and a question afterwards arose as to where the true line was. The boundaries of property conveyed before the resurvey were not to be disturbed. Held, proper to show that lots had been laid out and buildings put up with reference to the line as established by the first survey, and that it had been shown by a recent survey that the line as run by the re-survey would cross lots and bisect buildings.</p> <p>8. Disregard of the evidences furnished by fences, buildings and common repute, as to the true location of a surveyed line would justify granting a new trial in ejectment.</p> <p>4. Old surveyed lines which have become uncertain are not to be superseded by new ones, but are to be ascertained by a re-survev, if rights have become fixed and regulated in reliance upon the common understanding as to where they lie.</p>

<p>Error to Bay. (Green, J.)</p> <p>Assumpsit. Defendant brings error.</p>

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

<p>Injury to abutting owners by lawful ditching — Obstruction.</p> <p>1. A commissioner of highways, or an overseer acting under his direction, incurs no liability to abutting owners if, in the proper exercise of his lawful discretion, and for the sole purpose of improving the highway, he runs a ditch in front of their premises which they have to bridge in order to reach the road.</p> <p>2. The injury, if any, which a lawfully constructed ditch occasions an abutting owner, is damnum absque injuria.</p> <p>3. Acts done by authority of a valid statute, and with reasonable care, will not support any liability for resulting damage.</p> <p>4 Abutting owners have the right of access to the highway, and one who has been cut off therefrom by the running of a ditch, or the improvement of the road, may bridge the ditch, or grade the approach to his premises; but in so doing, he must not obstruct the ditch or the way.</p> <p>5. It is “willfully” obstructing a public ditch for one who knows its character to purposely and perversely fill it up in a permanent vray, even though his object is to obtain access from his lands to the highway, and the act is done under a mistaken notion of his rights.</p>

<p> Collection of judgment against township after its subdivision. </p> <p>Mandamus lies to compel a town clerk to issue the proper certificate for the levy of a tax to satisfy a judgment against the township, even, though the cause of action arose in territory that was set off as a new township after it arose and before judgment.</p>

<p>Accounting — Proof of allowances against complainant.</p> <p>1. An administrator brought suit for an accounting, against one who had made sales for his decedent. A note had been taken on one of the sales upon which a certain payment was indorsed. It was found, but only by the aid of a letter written by decedent, that this was really for merchandise turned over to a creditor of his; but as the letter mentioned a smaller sum it was held, that it could not be given effect beyond its terms, and that only the smaller sum could be charged against the estate.</p> <p>3. In a suit for an accounting defendant has the burden of proving what allowances should be made to him.</p>

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

<p>Appeal from Kalamazoo. (Mills, J.)</p> <p>Foreclosure bill. Defendant Harrison appeals.</p>

<p> Innkeeper’s liability for peddler’s pack. </p> <p>1. An innkeeper’s liability for a guest’s baggage is not diminished, but rather increased, by the fact that the guest has got too drunk at his bar to take care of it himself.</p> <p>2. A guest’s obligation to notify the innkeeper if he has property of extraordinary value in his baggage does not attach to a peddler stopping at an inn with his pack, or with the usual appurtenances of his business. So held in the case of a peddler who put up at an inn with a comrade, each having a valise and a small box, their baggage amounting to upwards of $300, and whose goods and valise were taken while in the landlord’s care.</p>

<p>Dissolution of 'attachments — Husband’s interest in wife's land occupied by the family— GertioraH.</p> <p>1. The powers of a circuit judge, in a collateral proceeding before him at chambers to dissolve an attachment, are those only of a circuit court commissioner; and he does not in such a proceeding exercise the full judicial authority of the court.</p> <p>2. A proceeding at chambers to dissolve an attachment is a special and peculiar statutory remedy, and though not to be disfavored or construed with unreasonable strictness, it cannot be extended beyond the statute, and therefore can be resorted to only by a defendant whose interests are invaded. It is not available to creditors or to assignees for their benefit.</p> <p>8. A husband, in joint possession with his wife, of land belonging to her but used as the family homestead, has, as head of the family, such an interest in the land as entitles him to complain of any unlawful interference with it; and if he is defendant in a proceeding in which an attachment has been levied on such land as his own, his interest therein is sufficient to entitle him to move for a dissolution of the attachment.</p> <p>4 Land owned by a wife but occupied not only by herself but by her husband and family as a homestead is in the husband’s tenancy, so long a£ it is so occupied, as distinctly as if leased to him.</p> <p>5. Defendants in an attachment proceeding made a general assignment. The assignees moved to dissolve the atlachment. A similar motion was made by one of the defendants who had an interest in the property. The dissolution was ordered at chambers, and the order was brought up for review on certiorari and sustained as to the defendant. Held, that the writ of cerliorari was not of right under the circumstances; and that though the assignees had no statutory right to move for dissolution, yet the equities were in their favor and no costs would be allowed for or against them.</p> <p>6. The Supreme Court will not review on certiorari the conclusions reached on competent testimony as to whether an attachment should he dissolved.</p>

<p>Foreclosure — Want of consideration — Compromise.</p> <p>1. A man sold a sailor a rotten old boat which was described on the ship-broker’s books as possessing various virtues that it did not have. The sailor and his wife gave back a mortgage on the wife’s house. The boat’s defects were not so apparent but that the sailor used her for a long time in the hope that he could make her do, but she was too unseaworthy, and he suffered great losses. The wife saw the man who Sold the boat and claimed that part of the notes given him ought in, fairness to be given up, and he referred her to his lawyer, but instructed the lawyer not to give them up until she signed a receipt for all claims resulting from the sale. She would not sign at first, and only did so on the lawyer’s assurance that if she did not mean to bring a suit, signing would make no difference to her. Held, that this advice was not true in law as it took account of actions only, and not of defences; the compromise, therefore, could not prevent the sailor and his wife from resisting foreclosure on the grounds of a want of consideration and of fraud.</p> <p>2. One who enters a vessel on a ship-broker’s books as for sale is responsible for the correctness of the data of description there appearing if they were meant to be relied on and were relied on.</p> <p>3. The continuous use which the purchaser of a vessel may be compelled to make of it after discovering defects, does not waive damages to which he is entitled therefor, whatever effect it may have on his right to a rescission.</p>

<p> Sale of good-will&emdash;Injunction against usé of similar business title. </p> <p>1. The “good-will” of a business establishment rests in the probability that its old customers will continue their custom and commend it to ■ others.</p> <p>2. Injunction lies to restrain partners who have sold out their interest in the good-will of a business from carrying on a rival establishment under a name so similar to that of the first as to misleadand draw off business; and the writ lies against all concerned in the new establishment. But it is hardly necessary to interfere with the delivery of mail to the latter beyond requiring them to turn over at once to the, original establishment so much as may have been intended for it.</p>

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

<p>Pleading — Election of counts — Waiver of tort and suit in assumpsit.</p> <p>1. Election between counts need not be required where, in assumpsit for money obtained by defendant through fraud, the common counts are joined to a special count waiving the tort.</p> <p>2. A couut in assumpsit, waiving a tort on which it rests, may properly state the facts which constitute the tort, as they will have to be proved.</p> <p>3. Plaintiff may join all his causes of action in one declaration, if in separate suits he could recover on each in the same form of action and on the same proofs.</p>

<p>Error to Mecosta. (Fuller, J.)</p> <p>Replevin. Plaintiffs bring error.</p>

<p>Appeal from Washtenaw. (Joslyn, J.)</p> <p>Accounting, etc. Defendants appeal.</p>

<p>Error to Macomb. (Stevens, J.)</p> <p>Trover. Plaintiffs bring error.</p>

<p> Affidavit of publication in chancery. </p> <p>An affidavit of publication in chancery must state the facts of inquiry on which it bases the conclusion therein expressed that defendant is absent from the State or concealed within it.</p>

<p> Transfer of causes. </p> <p>A motion for an order to show cause why a case should not be transferred was denied where the circuit judge, in the exercise of his statutory power, had passed upon certain disputed facts.</p>

<p>Error to Oakland. (Stickney, J.)</p> <p>Larceny. Respondent brings error.</p>

<p>Replevin — Election of judgment for value.</p> <p>Election to take judgment for value in replevin before a justice, cannot be exercised, as matter of right, after an adjourned day on which the plaintiff discontinued and defendant did not appear.</p>

<p>Error and certiorari to Ottawa. (Arnold, J.)</p> <p>Complaint for violation of liquor law.</p>

<p>Error to Wayne. (Chambers, J.)</p> <p>Case. Plaintiffs bring error.</p>

<p>Public lands — Map in evidence.</p> <p>1. A map of a government subdivision is inadmissible in evidence without.tlie surveyor's field-notes.</p> <p>2. A certificate by the Commissioner of the State Land Office that “ the annexed is a true and correct copy of ” a specified governmental subdivision “as shown on government plat .on file in this office,” is insufficient to authorize the admission in evidence of a map of the subdivision referred to.</p> <p>8. All subdivision lines of a section of land according to government survey must run straight from a point in one exterior line of the section to the corresponding point in the opposite boundary.</p> <p>4. Ejectment for land described as being in the southeast quarter of a ■ specified section cannot be maintained if the evidence shows that it lies west of a lino drawn north and south through a quarter-post that stands midway of the south section line.</p>

<p>Appeal from Marquette. (Grant, J.)</p> <p>Injunction bill. Complainant appeals.</p>

<p>Error to Marquette. (Grant, J.)</p> <p>Assumpsit. Plaintiffs bring error.</p>

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

<p>Estates of decedents — administrator’s inventory — Personal judgments without notice — Action on administrator’s bond.</p> <p>1. An administrator is not conclusively bound by the inventory he files of the decedent’s estate, but may explain and correct it; he may show, e.g., that property inventoried did not belong to decedent, but to a firm in which he was a member.</p> <p>2. Personal judgments cannot rest on fictions of law nor be pronounced without an opportunity for hearing.</p> <p>3. An administrator is not to be treated as at all times before the court and hound at his peril to know of proceedings affecting him.</p> <p>4. An order that an administrator shall pay the claims against the estate in a given time will not hind him if made as of course on a showing merely that all claims are in and that they amount to less than the estate as appraised: it will at most oblige him in a later proceeding to show cause for not doing so. And on his default an order permitting his bond to be prosecuted determines only the right to sue on it; it does not fix the administrator’s liability.</p> <p>5. One whose claim against an estate has been allowed but has not been paid within the time limited, makes a prima facie case in an action on the administrator’s bond if he shows an inventory of assets exceeding the debts and an order for the payment of the debts; but defendants may rebut this by showing a deficiency of assets.</p>

<p>Statutory actions — Cost of drain proceedings.</p> <p>1. One who relies on a statutory right of action must come within its terms by showing that the facts exist on which the liability arises.</p> <p>3 The cost of drain proceedings can be recovered by the drain commissioner in assumpsit against the petitioners for the drain, if special commissioners shall find that there was no sufficient ground for the petition. How. Stat. § 1697. Held, that where the petition was approved by the special commissioners, but the drain commissioner had surveyed a ditch differing materially from that asked for, there was no ground for the action.</p>

<p> Railway injury to person crossing track. </p> <p>The wife of a man who was employed by a railroad company in taking her husband his dinner, had occasion to cross half a dozen busy tracks that lay side by side. In stepping out from behind some cars that stood on one of the tracks she was struck and injured by an engine on the next track, that was backing down in front of her and across her path. Held, that whether or not the railway company was negligent in running the engine at a prohibited rate of speed or in failing to ring its bell, the woman was not exercising ordinary care and could not recover for the injury to which she had contributed by her own negligence.</p>

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

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

<p>Lease — Insurance and taxes — Appraisal of improvements — Tenants-in-common — Partition.</p> <p>1. A lease provided that the lessee should keep the property insured and should assign the insurance policy to the lessor. Held, that in equity no formal written assignment was needed, and if there was none the stipulated insurance would be deemed to be held in trust.</p> <p>2. A lessee’s omission to pay a paving assessment could not properly be treated as a breach of his contract, if it arose from a question as to the validity of the assessment, and if he paid it when its validity was settled.</p> <p>3. A lessee of land agreed to put up a building thereon, the value of which was to be appraised at the expiration of the lease, wheD the lessor, after proper notice, could have the building on paying its value, or the lease should be extended. Held, that an appraisal of the building was unnecessary where no notice was given of a purpose to terminate the lease. And an appraisal of the land by mutual consent was equivalent to an agreement that the lease should be continued, and should not be interfered with by partition where the parties to the lease were tenants-in-common.</p> <p>4. A tenant-in-common may enter into such agreements as to estop himself from enforcing his right to a partition of the premises.</p>

<p>Navigable waters — Exclusion of riparian rights — Demurrer.</p> <p>A bill in equity claimed riparian rights upon a bayou and title to the middle of its channel. These facts being admitted by general demurrer, it was held that complainant could maintain his bill for relief against his grantor if the latter asserted title to the bayou, and so obstructed it by filling it with saw-logs as a booming-ground, that the riparian grantee was excluded from it.</p>

<p>Error to Wexford. (Fallass, J.)</p> <p>Trespass. Defendant brings error.</p>

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

<p>Costs — Expenses of taking care of attached goods.</p> <p>1. A re-taxation of costs to include the expense of taking care of property attached in the case was properly denied where the affidavit for taxation did not give the names and identify the services of those whom plaintiff claimed to have paid, nor itemize the expenditures.</p> <p>2. An affidavit for the taxation of costs should itemize them with exactness especially if those to be charged with them are not interested alike.</p> <p>3. Expenses of taking care of goods under attachment are not, it seems, a lien on the property after the goods have been released by a supersedeas bond and the case is ended; and it is doubtful if such expenses are taxable as costs.</p>

<p> Approval of liquor bonds. </p> <p>Mandamus to compel a village board to approve a liquor dealer’s bond will be denied if there is nothing to show that the refusal to approve it was capricious, or to rebut the presumption that the board has fairly-passed upon all the questions which determine the sufficiency of the bond and the reliability of the sureties.</p>

<p>Appeal — Issue of execution — Mandamus</p> <p>1. Mere intention to take an appeal does not preclude the prevailing party from taking out an execution.</p> <p>2. Mandamus does not lie to vacate an order that was not erroneous when made, whatever has taken place since.</p>

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

<p>Res judicata — Reserved points — Special damages — Trespass by throwing dirt on adjoining land.</p> <p>1. A decree in equity sustaining the validity of drain proceedings is conclusive upon that point in an action at law involving the same question.</p> <p>2. Objections to the validity of proceedings involved in a suit cannot be raised in a later case if purposely withheld or reserved in the first one.</p> <p>S. Where special damages are claimed and the case is submitted under such instructions as would require the jury to return a verdict therefor if there were any, a verdict for defendant determines that none were suffered.</p> <p>4. Persons whose duty it is to run a drain must keep within the limits of the land taken for the purpose; if they throw out dirt upon adjacent land, it is a trespass.</p> <p>tf. Costs were denied on granting a new trial where it appeared that much of the litigation had been unnecessary and needlessly expensive, and it was doubtful if substantial injury had been done.</p>

<p>Guardianship — Appeal from discharge of guardian.</p> <p>1. Guardianship cannot be revived after the release of the ward merely to enable a claim that had been previously filed to be prosecuted against the ward’s estate, or to be secured by the guardian’s bond. And the claimant has no such interest in the estate as will entitle him to appeal from the order discharging the guardian.</p> <p>2. Courts cannot create liens, but can only declare and enforce them.</p>

<p>Ejectment between co-tenants — Burden of proving ouster.</p> <p>1. Ouster is a question of fact in an action of ejectment, and the burden of proving it is on the party who alleges it.</p> <p>2. In ejectment between grantees of tenants-in-common defendant claimed title by adverse possession, and asserted that his entry under a warranty deed was an ouster of the co-tenants. There was evidence to show, however, that he only bargained for an undivided interest, and there was nothing to show that the co-tenants knew of his possession or claim of title. Held, for the jury to determine whether he entered claiming title to the whole, and intending to oust his co-tenants.</p> <p>3. Where the parties in ejectment, being co-tenants, rely upon an ouster, and the defendant claims title by adverse possession, the plaintiff has the burden of showing that he was ousted within the period of the statute of limitations, and the defendant of showing that he had ■ousted the adverse claimant so long before that the period of limitation had run since.</p>

<p> Bill rendered no evidence of value. </p> <p>A lawyer sued his client for the balance of his bill, and put in testimony as to the value of his services. Defendant produced a bill rendered. Held proper to charge the jury that defendant had given no evidence of value, and that if they were satisfied with the testimony given they might base their verdict on it.</p>

<p>Burglary — Possession of stolen goods.</p> <p>Possession of stolen goods may be shown, in connection with other evidence, upon a prosecution for burglary.</p>

<p>Sale — Transfer of title — Receipt as account stated.</p> <p>1. H and W were employed in a lumber business and W went to Canada for teams. H owned a span of gray mares, which he asked W to bring when he returned. W found the expense of bringing them too great and sold them, but told H, on returning, that he had a team of black ponies that would suit him. He did not say, howiever, that he had traded the grays for the blacks. Held, that without ■some agreement of sale, carried out by payment of price or earnest money or by delivery, there was not enough in the evidence to show a transfer to H of the title to the ponies.</p> <p>2. A receipt which states its purpose to be for a complete settlement, and which covers the whole period of dealing, is equivalent to an account stated; and though it is open to explanation as to errors or omissions, it cannot be treated as if it had not been meant to cover everything.</p>

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

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

<p>Motion for rehearing.</p>

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

<p>Fraud in sale of chattels — Delivery—Mortgage.</p> <p>1. A sale of chattels by a debtor cannot be impeached for want of delivery if they are already under the purchaser’s control, as e. g. where the debtor is the purchaser’s son-in-law and is indebted to him, and the chattels are in a building belonging to the purchaser’s wife and to which he has the key.</p> <p>2. It is error to submit the question whether a bill of sale was meant as a chattel mortgage if there is no evidence tending to show it.</p> <p>3. Fraud is never to be presumed but must be found.</p>

<p>Appeal from Marquette. (Grant, J.)</p> <p>Petition for tax-sale. Defendant appeals.</p>

<p>Appeal from Wayne (Chambers, J.)</p> <p>Petition for tax sale. The State appeals.</p>

<p>Libel — Bill of particulars — Justification—Special questions — Proof of murder — Newspaper privilege — Motive, malice and, good faith.</p> <p>1. A newspaper article, after stating that P. had murdered a certain girl, said she was known as P.'s woman and that he had told an alleged confederate that he need have no fears about her murder and had hired him to steal a sack, which he received [to put her body in] ; that he had furnished a wagon in which to take her body to the river ; that he had intimated to his wife that the girl had been murdered to get rid of her, and that he had confessed adultery to his wife, for which the wife had left him. Held, that these were all libelous charges, for which P. was entitled to damages unless it was proved that he had murdered the girl.</p> <p>■2. Two newspapers accused a man of murder and he sued them separately for libel. The affidavit of a convict that he was present when the murder was committed, was procured for one of the cases, but it conclusively appeared that he was elsewhere at the time sworn to, and the affidavit was not used. Held, that though it might perhaps be admissible in the other case to show defendant's good faith, it could not be used as proof, of the murder.</p> <p>3. The answer of a jury to a special question is of no account if based on testimony improperly received.</p> <p>4. Evidence that one accused of murder was in the neighborhood where it took place at the time it was committed and was in such a situation that he might have committed it is not sufficient to show that he did it if no stronger motive is alleged than that he wished to hide an unlawful intimacy indulged before his marriage and to escape liability on a four-hundred dollar note.</p> <p>5. Newspapers may discuss what relates to the life, habits, comfort, happiness and welfare of the people, and in doing so may state facts, draw inferences therefrom and express views upon the facts. Their deductions, even if false, are not actionable unless they cause special damages, but damage is presumed if they impute the commission of crime.</p> <p>■6. A newspaper statement imputing the commission of crime, but based on facts that have no legal tendency to prove it, is not privileged.</p> <p>7. In an action for libel based on a newspaper article imputing the murder of a girl, defendant sought to justify by proving it. Held, that the plaintiff, on producing evidence that tended to show that the girl was the victim of an abortion procured by some one else, was entitled to have the case submitted on that theory, and it was error to exclude a question put to a competent witness as to whether the facts shown were inconsistent with death by abortion. Held, proper also to cross-examine one who had testified as to the victim’s relations with the plaintiff, upon the impressions witness had received therefrom as to her feelings toward this person thus charged with her murder.</p> <p>8. In an action for newspaper libel questions to the editor as to the purpose of the publication and the publisher’s feelings toward the •libelled person, and as to what the editor, before publishing the libel, had thought of its veracity, were admissible as beating on the questions of damages and the malice or good faith of defendant.</p> <p>9. Where a party has not been limited in his re-examination, the cross-examination thereon may properly be allowed the same latitude.</p> <p>10. In an action for newspaper libel the editor was properly allowed to testify that at' the request of plaintiff’s counsel he had previously published a synopsis of the declaration in a similar suit brought by the same plaintiff against another paper.</p> <p>11. Special questions may properly be submitted to the jury in a libel suit, if the case is a proper' one for the jury, to determine whether defendant acted in good faith and with due care.</p>

<p>Error to Bay. (Green, J.)</p> <p>Trespass. Plaintiff brings error.</p>

<p>Appeal from Wayne. (Jennison, J.)</p> <p>Bill to set aside deed, etc. Complainant appeals.</p>

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

<p>Separation and desertion — Extreme cruelty.</p> <p>1. Separation of married persons differs from desertion of one by the other; desertion, in Michigan, is willful abandonment for two years without cause and against the wish of the person abandoned, and it may even be charged upon the one who stays at home.</p> <p>2. A wife who leaves her husband for cruelty which she reasonably believes makes further residence with him unsafe, is not chargeable with desertion ; but he is.</p> <p>3. It is extreme cruelty for a husband to call a sensitive and refined wife a bitch.</p> <p>4. The Supreme Court will not disturb a decree dismissing a divorce bill unless fully convinced that if it had been in the place of the trial court it must have come to a different conclusion.</p>

<p>Street Railways — Diligence in clearing tracks of snow.</p> <p>1. A street railway company is bound to exercise such care and diligence in clearing its track of snow as not to interfere needlessly with the safety and convenience of persons lawfully using the street; and if an extraordinary snow-fall takes place it must make extraordinary efforts to dispose of it. '</p> <p>2. In an action for an injury caused by obstructions which in the first instance are lawfully in the street, but which defendant is bound to remove as speedily as possible, it is not necessary to allege that they were left there for an unreasonable time; the offense of leaving them there relates back so that it becomes unlawful from the beginning and the time necessary for their removal is matter of justification and defense.</p>

<p>County clerk, — State road commissioners — Road tahxes.</p> <p>1. Certiorari to review an allowance against a county may be sued out by tbe clerk of the board of supervisors, and it is assumed that in doing so he has the authority of the board if it does not repudiate his action. And it is unimportant that he sues it out as county clerk.</p> <p>2. Special commissioners, named by statute, to lay out State roads are not county officers though required, for purposes of record, to render an account of their proceedings to the board of supervisors.</p> <p>3. Moneys raised by road-district taxes as a special fund established by legislation for the construction of State roads are not county moneys though placed in the county treasurer’s hands for safe-keeping.</p>

<p>Fraud — General verdict — Fraudulent Chattel Mortgage.</p> <p>1. In trover for goods which plaintiff had sold in reliance on false representations, and defendant had seized upon a chattel mortgage given-him for the purpose of defrauding plaintiff, a general verdict in plaintiff’s favor covers the questions of defendant’s participation in or knowledge of the fraud, if those questions were submitted to the .iury-</p> <p>2. It is too late to object for the first time in the appellate court, that the-jury had taken to their room a memorandum made by counsel.</p> <p>3. A chattel mortgage is invalid if instead of being taken as security it was taken to prevent the vendor of the mortgaged goods from-recovering them or their value.</p>

<p>Appeal from Macomb. (Stevens, J.)</p> <p>Bill to set aside deeds and clear title. Cross-bill to set aside mortgage. Almon D. Jenney appeals.</p>

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

<p>Injunction against ejectment suit — Notice by occupancy</p> <p>1. A man agreed with his son that the son should have a certain piece of property by way of advancement from his estate, and the son took possession of it accordingly. The father executed a deed with the avowed purpose of delivering it to the son, but it was lost. The father however referred to the advancement in his will and so recognized it. Ejectment was brought for this land by one who, without consideration, had obtained from another of the testator’s children a deed of whatever interest the latter had in the land. Held, that the son who had occupied and improved it could maintain a bill to enjoin the action, and to clear and confirm his title. His possession and continued occupancy were sufficient notice of his claim, and his case was barred neither by the Statute of Limitations nor by laches.</p> <p>2. A decree in chancery will not be disturbed for errors in the admission of evidence if there was enough, aside from the testimony complained of, to support the findings on which the decree is based.</p> <p>3. Record evidence of title is not absolutely necessary in a court of chancery, to sustain a bill to enjoin a proceeding in ejectment.</p>

<p>Contracts — Mutuality—Personal liability.</p> <p>1. Courts are not to make contracts between parties but are to enforce them.</p> <p>2. Contracts cannot arise where there is no mutuality; and certainly not where one person not only had no intention of binding himself, but was not even supposed by the other to be making himself personally liable.</p> <p>8. A tramp was run over by a locomotive in a railway yard. A surgeon being summoned tohelp'Jhim, telephoned the railway superintendent and asked if he should do so. The superintendent answered, yes. Nothing was said about pay, and in fact the superintendent had no authority to bind the railway company to pay for surgical aid. Held, that there was no contract upon which he was personally liable for it.</p>

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

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

<p>Error to Macomb. (Stevens, J.)</p> <p>Assumpsit. Plaintiff brings error.</p>

<p>Suit on residuary legatee's bond — Mortgage on decedent’s estate — Interest on specific bequests.</p> <p>1. The residuary legatee, in a proceeding against him by a general legatee upon his bond, has a right to examine the plaintiff fully as to what the latter has received from the testator’s estate.</p> <p>2. If a mortgage upon the estate of a testator is a bona fide indebtedness which the residuary legatee is bound to pay, it cannot be deducted from the amount of a general legacy.</p> <p>3. Interest upon specific bequests runs from the testator’s death; but in the case of general legacies it does not run until the expiration of a year from that time, — or in states where the law or the probate judge allows a year for paying debts and legacies, not until a year has passed since letters testamentary were granted; or, in the case of a residuary legatee, a year from the date of filing his bond.</p> <p>4. Administration is closed on the approval and filing of an executor’s bond as residuary legatee.</p>

<p>Certiorari to township drain commissioners.</p>

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

<p>Appeal from Kent. (Montgomery, J.)</p> <p>Foreclosure bill: petition to set aside sale. Complainant appeals.</p>

<p>County treasurer — Accounting—Estoppel— Compounding felony — Business books in evidence — Receipts.</p> <p>1. Assumpsit on the common counts lies at the suit of a county treasurer against his official predecessor, for the amount of county moneys which the plaintiff has accounted for to the county as received from defendant hut which in fact has not been so received.</p> <p>2. It is not compounding a felony for an official to account for moneys as received from his predecessor, and himself assume their payment upon the latter’s assurance that he will make the amount good if the accounts are incorrect.</p> <p>3. A county treasurer who, in settling with the county, has charged himself with certain nfoney as received from his predecessor, when it has not in fact been received, is not estopped, in suing his predecessor for the amount, from claiming that the latter had not paid it.</p> <p>4. A county treasurer’s entries on his official books of the balances remaining at the end of his term are evidence against him as admissions of the amount which he has paid over to his successor.</p> <p>5. A county treasurer’s books are admissible in evidence in an action involving the amount turned over to his successor, and alterations in the entries cannot be presumed unless they are manifest, nor presumed to be wrongful.</p> <p>6. In an action by a county treasurer against his predecessor for moneys which the latter should have paid over to him, inquiries into plaintiff’s private business or his bank account are impertinent unless there is some offer to show that they bear on the issue whether the money has been paid over.</p> <p>7. Beceipts relied upon by a defendant in assumpsit as covering the money sued for must be produced; or sufficient reason must be given for not producing them, as a foundation for secondary evidence.</p> <p>8. A county treasurer sued his predecessor for moneys which defendant should have paid over but had not, and defendant sought to dispute an entry on his own books which showed the receipt of money from a certain township. Held proper for the court to suggest that ho should have resorted to the township treasurer to show that it was not paid.</p>

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

<p> Incorporation of religious societies. </p> <p>A religious society that in good faith has exercised corporate powers for ten years must he treated as a legal incorporation even though the-proceedings taken to incorporate it were in themselves fatally defective. How. Stat. § 4649.</p>

<p>Error to Van Buren. (Mills, J.)</p> <p>Assumpsit. Defendants bring error.</p>

<p>Judicial knowledge — Flooding lands.</p> <p>1. Courts will take notice of the recital in public statutes of the time when a turnpike was laid out and built by the general government, and of the fact that it afterwards became subject to State authority and went into the charge of the ordinary town officers.</p> <p>2. The maxim “ Sic utere tuo alienum non laedas,” applies to adjoining owners of land, each of whom must respect the valuable rights which accrue to the other from the relative situation of their lands, e. g., in respect to the flow of surface water from one upon the other.</p> <p>3. A rural land owner has no right to put up such artificial barriers as will flood his neighbor’s land with water that would otherwise .escape over his own, for the mere purpose of reclaiming the bed of a pond that has always been on his premises, and of getting rid of the inflow.</p>

<p>Error to Lenawee (Steere, J.)</p> <p>Ejectment. Defendant brings error.</p>

<p> Special drain commissioner. </p> <p>A probate judge’s ex-parte appointment of a special commissioner in proceedings to construct a drain is void where no notice of the petition for such an appointment was given to those who would be taxed for the drain.</p>

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

<p>Appeal from Mecosta. (Fuller, J.)</p> <p>Bill to construe will. Defendants appeal.</p>

<p>Appeal from Muskegon. (Russell, J.)</p> <p>Bill to clear title. Defendants Grustin appeal.</p>

<p>Estoppel from, relying on stipulation — Patent inuring to mortgagee’s benefit.</p> <p>The purchaser of land paid part of the purchase price and for the rest gave notes secured hy a mortgage on the land. Indorsed on the mortgage was a stipulation that it should not be foreclosed until the mortgagee had removed all clouds on the title. The land was part of a railway grant which reverted to the Government and was released by Congress to the State. During his occupancy the purchaser obtained a deed from the railway company to strengthen his title, and when the holders of the mortgage sought to remove the cloud, as they did at the earliest opportunity, he refused to permit them to do so in his-name, and the attempt failed in consequence. Meanwhile, relying on his two deeds and his possession, he took a patent to it himself aspre-emptioner. Held, on a bill to foreclose that he was estopped from relying on the stipulation, as he had tried to prevent its fulfilment; also, that his patent inured to the benefit of the mortgagee, the-more so, as the mortgagee’s deed enabled him to obtain it.</p>

<p>Error to the Superior Court of Grand Rapids. (Parrish, J.)</p> <p>Assumpsit. Plaintiff brings error.</p>

<p>Justice’s courts — Judgment for joint debt — Transcript in evidence — Presumption in favor of certificate — Merger of debt in judgment.</p> <p>1. The judgment to be rendered in justice’s court on a joint debt when only one defendant is served is prescribed by statute, and the use of the word “ defendant” instead of “ defendants ” in rendering judgment is a mere clerical misprision and leaves the judgment if not taken up for review, valid as against the defendant who was served.</p> <p>2. A transcript of a justice’s judgment is admissible as evidence though certified by another justice, if his certificate shows that he had possession of the docket of the justice who rendered the judgment.</p> <p>3. It is presumed that a particular justice of the peace is the one who certified a transcript if his name is signed, as justice, to the certificate.</p> <p>4. A justice’s judgment, though joint in form is not in law a joint obligation binding both defendants alike, if only one was served, and it does not merge the debt so as to preclude suing both over again. The one who was not served is not personally bound, and cannot be until he is sued on the original obligation. The judgment therefore may be sued as an individual obligation against the one who was served and the case may be discontinued as to the other.</p>

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

<p>Partner’s authority to submit to arbitration — Acknowledgment of submission —Arbitrator’s oath.</p> <p>1. A partner can bind his firm by a submission to arbitration if expressly authorized to do so, and an award based on such submission may be good at common law. His authority can be proved if questioned, and an acknowledged power of attorney is unnecessary</p> <p>2. The oath of arbitrators does not have to be in writing.</p> <p>3. Joinder of partners in suing out a writ of error to review the judgment on an award against the firm has the effect of affirming the authority delegated to one partner to submit to arbitration.</p> <p>4. An acknowledgment of voluntary submission to a common-law arbitration is irregular if not made until after the arbitrators have begun their work; but if made before they have finished, it maybe allowed for the purpose of sustaining a statutory judgment on the award. And it is not invalidated by being under oath.</p>