Volume 55 — Michigan Reports

<p>Lien upon logs — Affidavit.</p> <p>A judgment enforcing a lien upon logs for labor done thereon (How. Stat. §§ 8412-8437) was affirmed by the equal division of the Supreme Court, which did not agree that the- affidavit filed by the claimants was sufficient to sustain the judgment, if not objected to before. The objections considered fatal were that it did not allege that the parties represented by plaintiff had united their claims, or that they had designated plaintiff as their agent or attorney to enforce the lien, or that the respective sums claimed were less than one hundred dollars each, or as to who was the owner of the logs.</p>

<p>Appeal from Ingham. (Gridley, J.)</p> <p>Foreclosure bill. Complainant appeals.</p>

<p>Railroad Companies — Charier obligations — Termini—Quo wa/rranto.</p> <p>1. A chartered railroad company is bound to build its road between the termini named in its charter and then to operate the whole of it.</p> <p>2. It is discretionary with the Supreme Court to grant an application for leave to file an information in the nature sof quo warranto.</p> <p>3. A railroad company chartered by the Legislature is a quasi-public corporation.</p> <p>4. “ A chartered railroad company is responsible for the performance of the duties imposed by its charter, eveu though it has leased its road.</p> <p>5. Leave to file an information in the nature of quo warranto was denied where the respondent was a railroad company, the forfeiture of whose charter would not redress the grievance complained of, which was that its lessee had discontinued part of its route and side-tracked a village which complained of the consequent loss of facilities for transportation.</p>

<p>Brain tax — Bill to vacate assessment — TPreeluMers—Bescription.</p> <p>1. A bill in equity will lie to have the assessment of a township drain tax declared void; and the township treasurer and drain commissioner may properly be made defendants even though the tax has already been returned, as unpaid, to the county treasurer.</p> <p>2. A township drain tax is made a lien upon the land on which it is assessed. (Act 9 of 1882, § 26). And if the tax proceedings are without jurisdiction the lien creates a cloud on the title and a bill in equity will lie to remove it by having the assessment declared void.</p> <p>3. The requirement that a petition for a township drain must be signed by five freeholders residing in the township, is jurisdictional; and if it does not appear to be so signed, a township drain tax based thereon is void.</p> <p>4. No action to lay out a drain can be taken upon a petition which, leaves the drain commissioner to determine distances and directions.</p>

<p>Tt'ustee de son tort — Bill to reach equitable assets — Technical pleading — Preliminarry lien — Laches—Decree not impeachable collaterally— Behewring.</p> <p>1. One who receives the goods of another and disposes of them with the knowledge that the latter is fraudulently seeking to save them from execution, becomes in equity the latter’s trustee and is liable to his creditors to the amount of the goods transferred.</p> <p>2. Where a bill in equity is grounded on fraudulent intent, technical formality in its averments will not be exacted, in the absence of a demurrer, if the complainant’s substantial rights appear and the grounds of equitable relief are stated. Nor will a demurrer make any difference unless it is brought to a hearing or relied on upon the argument.</p> <p>3. A bill in equity averring the return of an execution unsatisfied and the existence of equitable assets fraudulently transferred to a portion of the defendants and sold by them to innocent purchasers, is a sufficient basis for claiming that the proceeds of such sales shall be applied to the payment of the decree. It brings complainant’s case within either of the two classes of relief allowed to judgment creditors; viz.: by bill in aid of execution to set aside fraudulent transfers, or by bill to have the judgment paid from property beyond the reach of execution but equitably applicable to its payment. The lien to be obtained before filing a bill is unnecessary when the property is not in the hands of the fraudulent grantee at the time of filing it.</p> <p>4. Laches is not chargeable for failure to institute proceedings in equity to satisfy a decree from the proceeds of property fraudulently transferred and sold, so long as the proceedings of the transferees are kept secret.</p> <p>5. A decree for alimony by a court with jurisdiction, cannot, if not appealed from, be impeached in a proceeding to reach the proceeds of goods fraudulently transferred by the defendant.</p> <p>6. Rehearing will not lie where nothing is involved but the gains and losses of a venture dependent on fraud.</p> <p>7. A court of review will not consider whether the remedy sought is the best so long as it is admissible.</p>

<p>Railroad injury to brakeman— Unusual risk.</p> <p>Whether a brakeman can recover against the railway company for an injury received in consequence of the conductor’s managing the locomotive in the engineer’s absence — Q. Judgment denying such liability affirmed by equal division.</p>

<p> Pa/i'tnershyp mortgage to secure individual debt. </p> <p>1. An insolvent’s assignee can attack his assignor’s transfers for fraud; and so can a receiver acting in place of an assignee. How. Stat. § 8741.</p> <p>2. A chattel mortgage given without consideration to secure the antecedent individual debt of one of the partners is fraudulent as against creditors of the firm if, at the time it was given, thejivm was insolvent or would become so by such a shrinkage in outstanding accounts as might reasonably be expected.</p>

<p> Garnishment on default of non-resident defendant. </p> <p>1. A judgment by -default against a non-resident defendant will^ entitle the plaintiff to proceed against garnishees indebted to him, even though the notice of the garnishment proceedings was served upon the principal defendant outside of the jurisdiction. How. Stat. §§ 8087, 8106.</p> <p>3. Each state has exclusive jurisdiction over persons and property within its limits, and can subject such property, when owned by nonresidents, to the payment of claims'which the owner owes to its citizens. But if the non-resident is not personally served and does not appear, the jurisdiction is limited to determining the amount of the obligation.</p> <p>3. Whether judgment against a garnishee upon notice served outside the jurisdiction upon a non-resident prinicipal defendant will be valid out of the State — Q.</p> <p>4 An attorney appointed by a foreign corporation to receive service of process in “actions upon any liability or indebtedness incurred or contracted ” by the company (How. Stat. § 3723) is not competent to be served with notice of garnishment proceedings.</p>

<p>Constitutional law — Grant, amendment, renewal and extension of corporate charters — Titles of statutes — Judicial notice — Confirmation of legislative acts, etc.</p> <p>1. A bill that has not been passed according to the conditions prescribed by the Constitution does not become a law by receiving the Governor’s signature and by publication among the statutes.</p> <p>2. A corporate charter cannot be amended in Michigan except by a two-thirds vote of the Legislature (Const, art. xv. § 8). An act purporting to amend a railway charter was recognized for nearly twenty years as valid, and the Legislature repeatedly based other laws upon it. It was then noticed that the vote on its passage, as recorded in the Legislative Journal, lacked one of the required number. Held, that the Legislature as well as the courts must take notice of what appears in the Journal; and that its subsequent adoption of acts in recognition of the amendment was a sufficient confirmation of that act to cure its. original invalidity if any existed.</p> <p>3. The honor and dignity of the State are under the protection of the courts as well as of the executive and legislative branches; and in matters of discretion the courts must protect it, even as against those departments.</p> <p>4. An act of legislation may be confirmed by the subsequent recognition of it; an express confirmation is unnecessary.</p> <p>5. An act enabling a railway company to take a new name and to extend its road is not an act renewing or extending its charter or creating a new corporation.</p> <p>6. Titles to statutes must embrace only one object. Const, art. iv. § 20. Held, that the title “An act in relation to mortgages against preferred stock in, and the delivery of goods by, railway companies,” is not clearly in violation of this requirement, as the whole act concerns railways.</p> <p>7. Act 96 of 1859 relating to railway companies was not repealed by the implied amendment of the General Railroad Law in Act 53 of 1872, or by its revision (Act 198 of 1873) which acts refer to companies organized under the General Railroad Law.</p> <p>8. An act permitting the creditors of a chartered corporation to enforce their demands by sale of its franchises is remedial only, and does not violate the constitutional prohibition against creating new corporations with the old charter powers.</p>

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

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

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

<p>Garnishment — Delivery of flock of sheep — Costs.</p> <p>1. Delivery of such property as a flock of sheep can only be made by surrendering possession with intent to transfer the title thereto, and by accepting it as owner.</p> <p>2. The purchaser of a flock of sheep cannot be garnished as a debtor of the vendor until the flock has been delivered, unless some payment has been made, or credit given and something passed by way of earnest.</p> <p>3. 'The purchaser of a flock of sheep was garnished as the vendor’s debtor, and in his disclosure stated that on the day the summons was served the sheep were “ delivered ” to him and he helped drive them to the scales. But it also appeared that they were to be paid for by weight and had not been weighed when the summons was served. Held, that there had been no complete delivery and the purchaser was not therefore garnishable.</p> <p>4. A judgment will not be set aside for an erroneous instruction to the jury, if the result could not have been different under a proper instruction.</p> <p>5. Counsel fee as for argument is denied the prevailing party if he neither presents his brief nor serves it on opposite counsel.</p>

<p>Error to Monroe. (Joslyn, J.)</p> <p>Case. Plaintiff brings error.</p>

<p>Appeal from Charlevoix. (Bamsdell, J.)</p> <p>Specific performance. Complainant appeals.</p>

<p>Error to Hillsdale. (Steere, J.)</p> <p>Replevin. Plaintiff brings error.</p>

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

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

<p>Error to Shiawassee. (Newton, J.)</p> <p>Proceedings to recover possession of land. Defendant "brings error.</p>

<p>Appeal from Shiawassee. (Newton, J.)</p> <p>Creditor’s bill. Complainant appeals.</p>

<p> Stipulation to extend time. </p> <p>A stipulation to “ extend” the time for taking testimony was entered into after the time had expired. Held, that the extension agreed on ran from the date of the stipulation and was not merely an “ enlargement” of the time first limited.</p>

<p>Action based on want of professional skill — demurrer.</p> <p>The declaration in an action by a commissioner of highways against the county surveyor for his failure to lay out a quarter section line correctly, is not demurrable on the ground that defendant is sued in his individual character while described in his official.</p>

<p>Agent’s tmihoriiy to receipt — Witness’s credibility.</p> <p>1. Receipting in a firm name but in the form used by agents puts the person making payment on inquiry as to the receiptor’s authority to take it.</p> <p>2. Neither an agent nor a partner has any implied power to apply partnership moneys on private debts; and one who deals with an agent cannot, without the principal’s authority or acquiescence, apply money due to the principal upon a private account with the agent.</p> <p>3. It is improper to put a particular witness into undue prominence by charging the jury to find according to their belief in his evidence, if such a charge tends to ignore important facts in the case.</p>

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

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

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

<p>Explanation of bill of particulars — Election of remedies.</p> <p>1. A plaintiff in replevin was suing the same defendant in assumpsit, and by mistake treated the value of the property replevied as an item of set-off. Held, that in the replevin case he would be properly allowed to show that this was a mistake; and the action in assumpsit would not therefore preclude that in replevin.</p> <p>2. Defendant in replevin claimed to have bought the disputed property, and gave evidence tending to show that plaintiff had admitted his ownership to a third person. Plaintiff claimed to have lent the property to defendant, and denied selling it. Held proper to instruct the jury to consider the statements as to ownership, and the denial of the same, and to determine the ownership from all the testimony,</p>

<p>Contract — Passive prevention of performance.</p> <p>A contract between adjacent owners to build a box drain bound each to build one end, and required the lower proprietor to keep his end of the drain open. Held, that he was liable on this contract if his neglect to open an outlet on his land below the proposed drain, to carry off the water, made it impossible to begin work on the drain itself.</p>

<p> Pa/rtnership books in evidence. </p> <p>A man sued a firm for the price of some produce he had furnished, and the firm defended on the ground that it had only been left for sale with an individual partner as a personal transaction, and that the partner had afterward sold out his interest and this transaction had not entered into the account. Held, that defendant could • be asked whether plaintiff’s account on the firm books showed a credit to him of the amount claimed; and the plaintiff was also entitled to call for the partnership books for evidence as to the account. And the question whether the other members of the firm had assented to the entry of the transaction as partnership business would be for the jury.</p>

<p>Error to "Wayne. (Jennison, J.)</p> <p>Proceedings to recover possession of lands. Plaintiff brings error.</p>

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

<p> Judgment for possession does not neeessa/rily carry crops. </p> <p>A judgment against a tenant for possession, in proceedings before a circuit court commissioner, does not necessarily divest him of his right, under the terms of the lease, to his share of the crops; and if the judgment is not based on a forfeiture lie is at least entitled to his proportion of crops already harvested. „</p>

<p> Adverse title. </p> <p>Where notwithstanding a deed to one person another went into exclusive possession and exercised acts of ownership, and such possession was recognized by all mesne grantees of the first, the occupant’s adverse title is a question for the jury in an action of ejectment against him by one claiming under the deed.</p>

<p>Error to Branch. (Pealer, J.)</p> <p>Proceedings for probate of will. Contestant brings error.</p>

<p> NoUae of foreclosure sale. </p> <p>1. A foreclosure sale is illegal if made without notice to defendants before the date fixed by the decree for the payment, in default of which sale may be made.</p> <p>2. The right of defendant in foreclosure to all the time the decree allows him for making payment, cannot be presumed waived in order to sustain a sale prematurely made without notice to him.</p>

<p>Pleading — Declaration—Cause of action— Variance — False pretenses.</p> <p>1. A declaration must be fatally defective that sets up no sufficient cause of action.</p> <p>2. Testimony that is not within the averments of the pleading is objectionable.</p> <p>3. A declaration for false pretenses must show (1) what they were ; (2> that defendants made or authorized them; (3) that they were material; (4) that they were false and fraudulent and deceived plaintiff; (5) what defendants obtained by them. Nothing outside of this belongs to the issue, whatever force it may have as circumstantial evidence. ■»</p>

<p>Attorney General — Irregularities in municipal contracts.</p> <p>The failure of a municipal council to follow strictly the provisions of \ their charter in making a public contract does not warrant the State in interfering by its Attorney General to set aside the contract, if it does not appear that the council acted in bad faith and sought to usurp authority or that any loss to the public or injustice to individuals would result from the arrangement made.</p>

<p>Res judicata — Evidence.</p> <p>The plea of former judgment cannot be sustained if it does not appear that plaintiff in the former suit had a right to bring his suit at the time he brought it, and that it was decided on its merits. And the contrary may be shown in meeting such a plea.</p>

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

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

<p>Affidavit for capias — Title under contract of sale.</p> <p>1. One who pleads the general issue in an action on the case for deceit, and makes no defense to the jurisdiction, can hardly object afterwards to the affidavit for a capias in such proceeding.</p> <p>2. A contract for the sale of timber does not give title thereto, if it provides that, after being fully paid for, all that is not removed within a specified time, or all that is removed before it is fully paid for or consent is indorsed on the contract, shall belong to the vendor.</p>

<p>Fraud by duress — Laches— Waiver — Breach of covenant against incumbrances— Outstanding rights— Costs.</p> <p>1. A grantee’s delay of nearly six years and a half in bringing suit to-have the sale to him rescinded as for duress in compelling him to make the purchase, amounts to gross laches and a waiver of the fraud practiced on complainant, if during that time he has recognized the validity of the purchase by making payments on it, and has treated the property as his own in all respects to the exclusion of defendant, and if meanwhile the testimony of those who knew the facts has been lost by their death.</p> <p>2. The duress, if any, practiced in refusing to carry out one’s agreement after the person to whom it was made has gone so far in reliance on it that he must buy out the other party or suffer serious loss, is a species of fraud, and must be complained of promptly if the latter wishes to rescind the transaction.</p> <p>3. No complaint can be made in equity of siich breaches of the covenants of a deed as incumbrances consisting of leases of which complainant accepts the benefit, or of alleys which were open to observation, and of which he knew when he bought.</p> <p>4. A grantee who claims to have had to buy a title outstanding in third persons who do not appear to have asserted it and whose right is doubtful, can hardly claim rescission on this ground in equity, but must sue on the covenant.</p> <p>5. ' The wife of a defendant in foreclosure is properly made a party because she is interested in the question whether the mortgage was for purchase-money so that its foreclosure would cut off her right of ■dower. But if the subpoena served on her has no underwriting to let her know the purpose of the suit, and if, in consequence, she ■appears and disclaims and replication is filed to her disclaimer, she is •entitled to the costs of a solicitor’s fee on the dismissal of the suit as to her, and if it is not allowed, to a solicitor’s fee on appeal.</p>

<p>Appeal from Ingham. (Gridley, J.)</p> <p>Petition for order on receiver of insolvent estate. The receiver appeals.</p>

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

<p>Libel by a corporation — Publication to agent — Privilege.</p> <p>1. A. railroad company supplied certain of its agents with a tabulated list of employees who had been discharged, stating in parallel columns « the name and occupation of the employee and under the heading “ Why discharged ” the reason. Held, where the reason given was “stealing,” the statement was libelous, and its issue to agents was a publication.</p> <p>2. Corporations, in Michigan, can be sued for libel.</p> <p>3$ The question whether a libel was not privileged cannot properly be raised in an appellate court after it has been excluded below by a ruling that publication has not been shown.</p> <p>4 It is for the court to determine whether the subject matter of a libel and its author’s interest in and relations to it, make it a privileged communication; but it is for the jury to decide as to his good faith, belief in the statement and actual malice.</p> <p>5. Privilege is to be shown in an action for libel as a justification, after publication has been proved.</p>

<p> Consideration for admission of liability. </p> <p>1. One who indorsed the note of his partner and brother-in-law, and afterwards, on condition that this note should be cancelled, indorsed another, and when the last note was about to outlaw joined the maker in admitting liability thereon and promising payment in order to save-a suit, could not claim that such admission and promise were without consideration.</p> <p>2. Where a verdict is directed, the party maintaining it in the appellate-court can rely only on the undisputed testimony.</p>

<p>Error to "Wayne. (Jennison, J.)'</p> <p>Trespass qu. cl. Defendant brings error.</p>

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

<p>Case made after judgment from Berrien. (A. J. Smith, JJ)</p> <p>Ejectment. Defendant had judgment.</p>

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

<p>Cheboygan water commissioners — Sala/ry— Volunta/ry services — Estoppel.</p> <p>1. The Village Incorporation Act, under which Cheboygan is incorporated, provides that officers, with certain exceptions, “ shall receive such compensation, as the council shall prescribe” (How. Stat. § 2825), and it specially authorizes the council to fix the compensation of sewer commissioners and of the fire. department. It also-authorizes the appointment of a board of water commissioners, but says nothing about paying them, nor does the ordinance creating the board. Held, that the water commissioners are not entitled to a salary, nor to payment for any services done in the line of their official duty.</p> <p>2. A village officer cannot recover from the village for voluntary services outside the line of his duties, if rendered on his own responsibility in a case in which he alone would not have been competent to hire their performance.</p> <p>3. One who applies for and receives a warrant upon the treasurer of a municipality for the amount allowed him for services, and thereunder accepts payment, is estopped from making farther claim for the same services or disputing the settlement so made.</p>

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

<p>Promise to pay another’s debt — Beliance on, credit of third persons — Jury'» finding.</p> <p>1. A promise to pay for goods to be supplied to a third person, and bought by him on the promisor’s authority, is not within the Statute of Frauds as a promise to pay another’s debt.</p> <p>3. Taking an order from the purchaser of goods upon a third person who-had authorized their purchase, is not inconsistent with sole reliance on the latter’s credit.</p> <p>3. A jury is not to be instructed to find what the undisputed facts show~ when there are other facts to be considered in connection with them.</p>

<p>Active trusts — .Reversion of beneficial interest to heirs-at-law.</p> <p>1. A deed of trust, in fee simple, for the benefit of the grantor’s wife, required the trustee to pay the rents and profits to the wife, during her life, and permit her, if she chose, to occupy the premises. And on the wife’s death the rents and profits were to be paid to her children until they came of age, when the trustee was to deed the land to them. The wife outlived her children and all her grandchildren but two. Held, that on her death these were entitled to the property as heirs-at-law of the grantor.</p> <p>2. A trust requiring the trustee to manage property and pay rents and profits to the beneficiary unless the latter elects to live on it is an active trust, so long as the beneficiary is out of possession; and whenever that is the case, it does not therefore vest a legal estate in the beneficiary under How. Stat. § 5565, and a mere beneficiary for life cannot, by deeding it, give title to more than an equitable life-interest, if to that.</p>

<p>GwrnisJiment — Disclosure.</p> <p>A garnishee’s disclosure cannot he made less conclusive by allowing a jury, upon the trial of an issue demanded by the garnishee, to consider inconclusive testimony as to what such garnishee had previously said in answer to unauthorized inquiries as to whether he had received possession of the principal defendant’s property before or after the entry of the judgment against him.</p>

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

<p>Equity — Interference with possession.</p> <p>A bill in equity will not lie to restrain one from interfering with complainant’s possession as owner of premises when defendant’s claim is that of a riparian owner; the remedy is at law. And the dismissal of such bill will not prejudice complainant as to any rights that have not been put in issue and adjudicated.</p>

<p>Proof of marriage by reputation — Testimony of parties to divorce suit — Costs.</p> <p>1. A woman, claiming to be married and seeking a divorce cannot be examined as a party except in open court, without defendant’s consent (How. Stat. § 6260), whether she is really his wife or not.</p> <p>2. An intimacy between a man and his housekeeper is not of itself evidence that they are married. And so long as their relations are such that the fact of marriage continues .to be seriously questioned, it cannot be considered as established by reputation.</p> <p>8. In proving marriage, reputation is important only as circumstantial evidence as to whether the parties themselves regarded each other as husband and wife.</p> <p>4. Costs in equity are not of absolute right; and on dismissing a divorce bill filed by a woman who could not prove a marriage, but with whom defendant had lived in intimate relations, both parties were left to pay their own costs.</p>

<p>Fire insurance— Vacant premises.</p> <p>A house occupied by a tenant was insured. The tenant moved out and the landlady at once moved her own things in and began to clean up, meaning to live there herself, but the next day she had to go away for thi’ee days’ absence. While cleaning the house she did not eat or sleep there, and after a few days she went off again on a business-trip. While she was gone the house was burned. Held, that the policy had not become void on the ground that the premises were vacant.</p>

<p> Right to personalty of intestate estate. </p> <p>1. A general administrator is entitled to the possession and control of all . the personalty, including money and securities, of which his intestate died in possession; and this includes property covered by a bill of sale from him, .but never delivered.</p> <p>U. The general administrator only can bring suit for personal property belonging to the estate of his intestate, until the probate court has . determined to whom the title or possession belongs.</p>

<p>Equity — Belief’ against judgment at law.</p> <p>Equity will not relieve against the enforcement of a justice’s judgment from which no appeal was taken, unless the defendant, without his own or his agent’s negligence has been hindered by fraud or accident from availing himself of his defense.</p>

<p>Appeal from Clinton. (Y. II. Smith, J.)</p> <p>Bill in aid of execution. Complainants appeal.</p>

<p>Case made after judgment from Isabella. (Hart, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>No cure, no pay — Patient’s solvency — Statute of limitations — Open account.</p> <p>1. One’s financial condition is irrelevant to tlie question whether he had bargained with a doctor on the “ no cure, no pay ” basis.</p> <p>2. A payment made upon the same day with the last of a series of charges will render the whole account open and mutual, so as to take previous charges out of the statute of limitations.</p> <p>8. A judge’s omission, while calling attention to the conflict in testimony as to a disputed payment, to state what effect the truth’of either statement would have in respect to the operation of the statute of limitations was error warranting reversal, if ho had been properly requested to charge that the items of plaintiff’s claim were barred, unless renewed by the payment.</p>

<p>Error to Berrien. (A. J. Smith, J.)</p> <p>Appeal from commissioners on estate. The estate brings error.</p>

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

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

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

<p>Error to Saginaw. (Grage, J.)</p> <p>Replevin. Plaintiff brings error.</p>

<p>Negligent injury — Declaration—Fellow-servants—Res gestee — Right of administrator to sue.</p> <p>1. A declaration for negligent injury is not demurrable for failing to state that the injured person did not know of the danger, if it does . aver that he was without fault.</p> <p>2. Actio personalis moritur cum persona is not a constitutional maxim; and the Legislature can give the representative of one who has been killed by negligent injury the right to sue therefor.</p> <p>3. A declaration for a negligent injury caused by the caving-in of the surface over a mine will cover a case in which the caving-in was due in part to the insufficiency of lateral supports, and need not be confined to one in which the surface fell in because of the removal of that on which it rested.</p> <p>4 A common workman employed about a mine but not himself a miner, is not a follow-employee of the miners in any such sense that he cannot recover for an injury caused him by the mining operations. And his employer is bound to see that the premises where he works are reasonably safe.</p> <p>5. Where an accident in a mine indicated danger and was followed three days later by another which did fatal injury, the acts and statements of the mine officers meanwhile in relation thereto were continuous parts of the res gestee.</p> <p>6. Iu an action for fatal injury the jury may properly consider how far the victim had knowledge of the danger and how far he relied on the action and the presumed knowledge of his superiors.</p> <p>7. An employee has a right to assume that it is safe to do what he is hired to do unless his knowledge warns him it is not.</p> <p>8. An administrator’s right to sue for a fatal injury to his decedent is sufficiently established as against strangers by the letters of administration granted him by the proper court; and in the case of one who, as decedent’s widow, has been appointed administratrix, the legality of her marriage cannot be questioned in an action by her for an injury to her decedent.</p>

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

<p>Error to Midland. (Hart, J.)</p> <p>Replevin. Plaintiff brings error.</p>

<p> Dower. </p> <p>A dower right cannot be established in land, the deed of which to claimant’s husband was never recorded, and which has passed to subsequent purchasers in good faith.</p>

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

<p>Witness— Wife against husband — Debt to wife — Title—Privileged, communications.</p> <p>1. A wife can testify in an action brought by her assignee against her husband for the non-performance of a contract between them with reference to her separate property. How. Stat. § 7546. And under-such circumstances evidence may be given of communications made in the confidence of the marriage relation.</p> <p>2. A debt from a husband to his wife is her separate property which she can assign, sell, devise or transfer by gift. 3. Title is that which makes the foundation of the ownership of property, real or personal; e. g. title to a debt consists in the facts which, taken together, created the contract relations of the parties thereto.</p> <p>4. No communications passing between husband and wife in the confidence of married life can be given in evidence by either without the other’s consent, unless they relate to the title to separate property in litigation between them.</p>

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

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

<p>Void assessment — Assumpsit to recover bach amount of tax.</p> <p>1. Assumpsit lies to recover back money paid into a township treasury in satisfaction of taxes illegally assessed and collected.</p> <p>2. A township’s liability to refund the amount of an illegal tax collected by the township treasurer is fixed by proof that he took the money in his official capacity.</p> <p>8. A tax is illegal if the supervisor’s certificate to the assessment roll fails to state that the valuation of the property assessed was “not at the price it would sell for at a forced or auction sale.”</p>

<p> Ownership of drafts indorsed for collection. </p> <p>A firm had been in the habit of indorsing in blank such drafts or cheques as were drawn to its order and depositing them in a local bank as so much money subject to be drawn on. One of the firm left a bank cheque so indorsed at the bank without any instructions, and the bank forwarded it for collection to another on which it made, at the same time, a large draft of currency for the depositor’s benefit. The second bank sent the deposited draft on for collection, when the first suspended and the depositor telegraphed to stop payment, which was done. The draft was then returned to the second bank which refused, on demand, to surrender it to the depositor and he brought trover for it. Held, that defendants were entitled to regard the paper as that of the bank which had sent it to them for collection, and that the action would not lie.</p>

<p>Contract — Question for jury.</p> <p>The existence and terms of a contract which rests, if it exists at all, upon actions and oral communications, are for a jury to determine.</p>

<p>Appeal from Alpena. (Ernerick, J.)</p> <p>Creditor’s bill. Defendants Churchill, Prentiss, Reid and Billings appeal.</p>

<p>Action on replevin bond — Mortgage antedating levy — Finding of ownership —Deductions—Purchasers in good faith.</p> <p>1. A mortgage on a stock of goods need not be filed to establish its priority over levies subsequently made, if the mortgage was given to secure the negotiable notes of a purchaser who was not the execution defendant nor a creditor of his, and did not claim in hostility to the owner of the mortgage.</p> <p>2. Where one in good faith buys a mortgage on goods without notice of prior levies thereon, his rights under it cannot be affected by the fraud of his assignee or notice thereto.</p> <p>3. A finding in a replevin suit of general ownership in a specified person is only to determine rights between the parties to that suit, and is not so conclusive in a subsequent suit on the replevin bond as to establish his right to mortgage the property, especially if the mortgage postdated ownership.</p> <p>4. In an action on a replevin bond a surety thereon who has become owner of a judgment under which a valid levy was made, is entitled to have the amount of the judgment deducted from the value of the replevied property if the claim was not presented with those on which the lien was grounded. So, also, property owned by the principal in the bond may be deducted, though included in the lien, if it had not belonged to the execution defendant and had gone to a bona fide holder.</p> <p>5. In an action on a replevin bond it cannot be shown that property already adjudged to belong to the principal in the bond was really only held by him to sell on commission.</p>

<p>Conviction of prime not charged — Peremptory challenges.</p> <p>1. The respondent named in an information can be tried only for the crime charged therein; and if convicted of any other he is acquitted of the crime charged and cannot again be tried on the same information.</p> <p>2. The number of peremptory challenges to which an accused person is entitled depends in Michigan upon the statute relating to the crime with which he is charged.</p>

<p>Impeachment by former deposition-- Cross-examination — Burglary.</p> <p>1. A deposition taken upon the preliminary examination of a person charged with crime is admissible on the trial to discredit the witness who made it, if the witness’ testimony be not consistent therewith; and the witness heed not have been cross-examined on the facts stated in the deposition.</p> <p>2. A conviction for statutory burglary from a store is unwarranted by testimony which identifies neither place, person nor property, and which purports to describe talk to which the witness paid little attention “about somebody’s getting in, and he taking the stuff out after they hauded it out to him.” Nor is it justified by testimony that defendant had complained that he had not been given “ a square whack at the Fremont deal ” when there was no proof that the deal was a burglary or that any burglary had been committed at Fremont.</p>

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

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

<p>Certiorari to Justice of the Peace.</p>

<p>Draw-bridge — Personal injury — Fitness of bridge-tender.</p> <p>1. The weight of relevant evidence-is for the jury.</p> <p>2. A case can only be taken from the jury when there is an entire want of evidence upon some material point in it.</p> <p>3. An incorporated draw-bridge company that collects toll, and has the exclusive management of the bridge, is liable for any injury that may result from its neglect to furnish reasonable safeguards to persons lawfully on the bridge when the draw is open, and who are themselves exercising ordinary care and prudence.</p> <p>4. *The nature of a personal injury in respect to being permanent or temporary, may be shown under the general issue in an action of case therefor.</p> <p>5. One who sued a draw-bridge company for the injury caused him by falling in the night into the gap while the draw was open, and who alleged that defendant negligently left it so without any protection against the opening, is entitled to show the situation and circumstances at the time of the accident, including the number of men in charge of the bridge, and the fact that during the month when it happened there was no bar or gate, or anything put up by the company when the draw was open.</p> <p>6. In an action against a bridge company for an injury caused by leaving the draw open, the plaintiff averred that defendant had employed an incompetent person and put him in charge of the bridge and the draw. Held proper to show that the person who employed the bridge tender had known, before he did so, that the latter had been deranged; and that conversations held by the employer with other persons, from which this fact appeared, were relevant for that purpose.</p> <p>7. Suit was brought against a bridge company by a man who fell into the draw in the night. Held proper to show that a bull’s-eye head-light, so placed as to illuminate the toll-house, did not shine so as to show the opening when the bridge was drawn; also, that while expert testimony as to how it should have been placed to do so, Was not admissible, its reception was harmless error.</p>

<p>Right of way — Forfeiture for non-performance of condition subsequent— Parol license superseded by written contract.</p> <p>. The provisions of a deed must be construed together and effect given, if possible, to every clause so that its intent may be deduced from, the whole instrument.</p> <p>3. A grantof who seeks the forfeiture of the grant for non-performance of a condition subsequent must stand on his strict legal rights; any ambiguity in his deed or defect in testimony will be taken most-strongly against himself.</p> <p>3. A deed of a right of way to a railroad company on condition that the company lay a side-track-in some convenient place to be chosen by the grantor, on his premises, within a specified time, or in default, forfeit the grant, is construed to mean that the period within which the track must be laid shall' not begin to run until the grantor liasdesignated the place for it.</p> <p>4. An agreement for a railroad right of way cannot rest partly in writing and partly in parol, and if so made the written contract supersedes-the oral.</p> <p>5. One who has received, kept and acted on a deed is estopped from claiming that it is not such a deed as should have been given.</p>

<p> Replevin for meat seized by an inspector. ' </p> <p>Neither the constitutionality of a statute authorizing an inspector to seize and condemn meat in the public market, nor the justification of such a seizure, can be considered in an action of replevin brought by the owner of meat that has been taken by an inspector, if there is no evidence of inspection and condemnation beyond the fact that a person, known to the owner as the inspector, marked the meat and took it away.</p>

<p>Highway injury — Building material in street.</p> <p>The statute that makes a municipality liable for ah injury that is-due to a street’s being out of repair (Act 244 of 1879), applies only where the want of repair is the immediate cause of the injury; and it is not putting a highway out of repair to let things stand in it for a time that form no .part of it. So held where a horse was frightened at the sight of a boulder that had been dug out of the road-bed and left between the gutter and the traveled part of the way until it could be removed by a person who had asked for and obtained it for building purposes.</p>

<p>Insurance— Overvaluation — Mtoppel Try proofs of loss.</p> <p>1. Overvaluation, of property in applying for insurance thereon can hardly become material where the insurance contract provides that the amount to which the insured shall be entitled in case of loss, shall not exceed three-fourths of its actual value at the time of loss.</p> <p>g. An insured person is not estopped by his proofs of loss from showing losses not mentioned therein unless the insurer, by relying on the proofs, has been plaped in such a position that the admission of the farther showing would be inequitable.</p>

<p>.Error to Shiawassee. (V. H. Smith, J.)</p> <p>■Case. Defendant brings error.</p>

<p> Township organization. </p> <p>1. Such townships as are to be organized into counties in Michigan must correspond in territorial extent to the original government survey unless the Legislature otherwise provides; and if it does, the question of their extent is left tó the electors residing in the counties affected.</p> <p>2. The powers of a board of supervisors are sucli only as the Legislature confers, except that it has the constitutional power to organize townships; but it must do this under legislative'restrictions.</p> <p>3. Legislative power is limited only by the Federal and State constitutions; and though the Legislature can confer local legislative powers upon a board of supervisors, it can also suspend their exercise or revoke them entirely, even in the matter of laying off new townships from the territory of old ones. And this, may result from a necessary inconsistency between the action of the Legislature and that of the board.</p> <p>4. Act 394 of 1879 discontinuing the township of Sherman, which was composed of four cornering sections taken from four cornering townships in Wexford county, was enough to invalidate the contemporaneous action of the board of supervisors in establishing the township of Concord, to consist in part of the former township of Sherman.</p> <p>5. The State cannot be estopped by long acquiescence in the action of a board of supervisors establishing a township, no matter how regular such action, if in the original instance the board did not have the power to establish the particular township.</p>

<p>False imprisonment — Presumption of regularity.</p> <p>1. The presumption that official action is regular applies to magistrates’ courts.</p> <p>3. An arrest upon a justice’s warrant delivered by the plaintiff or com plaining witness in the case to a constable for service, will not sus. tain an action against such plaintiff or complainant for false imprisonment where there is no showing that he acted maliciously or •directed the arrest, or was present when it was made, and where no •question was raised as to his good faith or the jurisdiction of the justice.</p>

<p>Written contract — Proof of additional consideration.</p> <p>It is proper to show, in defense to an action for the price of a machine which has been ordered under the terms of a written instrument by which defendant agreed to pay a specified consideration and which provided for a test, that it was understood when the order was given, and was part of the consideration, that plaintiff should furnish a man to set up the machine, and that it was his usage to do so.</p>

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

<p>Garnishment — Right of possession — Question of title.</p> <p>1. A charge that has no testimony to support the theory on which it is ’ based is error.</p> <p>2. In a proceeding against a garnishee to whom a chattel mortgage had been given before he was put in possession of the property, questions as to the validity of the mortgage were of no consequence so long as there was no showing that he took possession by virtue of it.</p> <p>3. Where a garnishee has no possession when garnished, and the title to the property has to be litigated to show the plaintiff’s interest, the property]cannot b,e followed into the hands of .strangers nor its proceeds into the garnishee’s.</p> <p>4. Garnishment proceedings are statutory, subject to strict construction and not entitled to special favor,'and no presumption can be raised in support of plaintiff’s claim; and this is especially so where the object sought is within the scope of equity jurisdiction.</p>

<p>Tenancy at will — Finding of facts — Conditions precedent and covenants— Notice to quit.</p> <p>1. A finding of fact is conclusive if there is evidence in the case tending to sustain it in its entirety; and if there is an absolute want of evidence to sustain any material part of the finding, it is, to that extent,, of no force. .</p> <p>2. A mere agreement by a tenant from month to month to pay rent in-advance is a personal covenant, and not a condition precedent to the right of possession, especially if in practice the rent is not always collected in advance; nor can it be construed as a series of successive agreements made at the beginning of each month, for a month’s-tenancy.</p> <p>3. Where a lease provides for monthly payments, but does not fix the-time for payment, rent is not due till the end of the month; but it is competent to agree that it shall be paid in advance and to make such payment a condition to the vesting of any estate in the tenant.</p> <p>4. No particular form of words is necessary, in a lease from month to-month, to constitute a condition precedent to the vesting of the tenant’s estate, but unless the mutual intention that it shall be a condition appears from the langage or circumstances, it will be treated only as a covenant.</p> <p>5. A tenancy from month to month without other limitation, and determinable at the choice of either party to the lease, is a tenancy at will, and so is a holding over pending negotiations for a renewal of the-lease; and the tenant is entitled to notice to quit even if he holds ‘over without paying. How. Stat. § 5774.</p> <p>6. The common-law definition of a tenancy at will prevails in Michigan in the absence of a statutory definition.</p>

<p>Error to Kent. (Montgomery, J.)</p> <p>Assumpsit. Defendants bring error.</p>

<p> Purchase by guardian in ward’s interest. </p> <p>Land belonging to an estate was sold by the executors to the guardian to pay debts. The transaction was in good faith on both sides, and full consideration was paid. The guardian afterwards sold to others who knew nothing of the guardianship and had no notice of it from the record of title. Held, that How. Stat. § 6042, which avoids any sale to a guardian unless for the ward’s benefit, would not warrant a ward in bringing ejectment against the purchasers, who were not bound to look beyond the registry of deeds to ascertain their grantor’s title.</p>

<p>Public land entries — Minimum price — Private sale.</p> <p>1. It is the general policy of the Michigan land laws that there shall he no private sales of State lands until they shall have been offered at public sale.</p> <p>2. Act 197 of 1883, in fixing the minimum price for certain lands, does not authorize their sale, but merely prohibits sales below that price, and-it presumptively means that a higher price may in some cases be demanded.</p> <p>3. Lands left undisposed of after public sale, cannot be entered at the State Land-office until.the Land Commissioner has had an opportunity to receive and enter the returns from the public sales, and to fix a minimum price and the time for future entries. And the previous deposit'of money, which the Commissioner has no right to receive officially, cannot give the depositor precedence as a purchaser.</p> <p>4. Whether the precedence of one person over another in a simultaneous scramble to enter land at the Land-office, can he determined by the fact that his application is first in the hands of the official conducting the sale — Q.</p> <p>■5. Costs on refusing mandamus were denied where the rights of intervenors could not be passed upon.</p>

<p>Appeal from Alpena. (Emerick, J.)</p> <p>Bill of interpleader. Defendant Commissioner of State Land-office appeals.</p>

<p>Bobbery — Evidence—Theory of ease — Credibility—Charge.</p> <p>1. A person who had been throwing dice with two or three others was shortly after robbed by two of them, and on the prosecution for the-robbery the identity of one of the offenders was the main question. jReid’, that a policeman who had seen the group throwing dice, and had testified that he thought one of them was the respondent, might properly be asked if there was then any doubt in his mind that the man he had seen was respondent.</p> <p>2. In a case of robbery where there was a question of identity as between-two persons, it was proper for a witness to testify that on the day after it was committed the victim had pointed out to him the respondent, and had told him, though not in respondent’s presence, that he was one of the persons who robbed him; such a statement is not-evidence of respondent’s guilt, but it shows that the victim’s belief in respondent’s identity was continuous.</p> <p>8. Where a p'erson accused of a crime committed on his own premises takes the witness stand, it is proper to examine into his conduct in connection with the accusation, and ask him whether he helped the officers investigate.</p> <p>4. Neither judge nor jury is strictly confined to the theory of either the prosecution or the defense in a criminal case if other theories are consistent with the facts. And a casual suggestion in the charge, involving a different theory and implying the possible guilt of some other person is not clearly prejudicial to respondent, and ought not to be made the subject of an exception unless objection is made to it at once so that the judge can correct it if he sees fit.</p> <p>5. The credibility of a witness who has turned State’s evidence is for the jury like that of any other witness and they cannot be instructed that it is worthless.</p> <p>6. Instructions respecting the credibility of a witness are not matter of right if they involve no question of law. And it is not necessarily an abuse of discretion to direct attention, in the case of one witness, to facts that would detract from his credibility, and not to do so in the case of another.</p> <p>7. A judge is not obliged, in charging a jury, to comment on facts at all; but may, if he chooses, confine himself strictly to laying down such rules of law as must guide their action.</p>

<p>Opening to jury — Relevancy of evidence in murder cases — Refusal to answer — Order of evidence — Arrest without warrant, for larceny.</p> <p>1. The interruption of an opponent’s opening to the jury to raise questions of its competency, or the restriction of such an opening by the court, is unjustifiable unless in very clear cases of abuse; and any question raised upon it should be disposed of summarily and without argument.</p> <p>2. It is not error, in a prosecution for murder, to receive testimony from which the suspicion might arise that respondent had also been guilty of larceny, if such testimony is relevant to the charge of murder.</p> <p>3. Upon a prosecution fora murder commiited with a gun, a witness-with whom respondent was familiar, ,was shown the gun-case that belonged to the gun used, and was asked if that was respondent’s-gun-case. He said he did not know; he had never seen it at respondent’s house, or in his possession, but he had seen a case that looked like it lying around a good while at the place where he himself worked, and that he had not known what became of it or whose it was until a few weeks before, when a certain person turned up. The person referred to testified that he was familiar with that kind of gun, and was allowed to explain its workings to tlie jury. The respondent himself said on cross-examination that he had had the gun and case about two months, and that they had been handed to him, 'but he refused to tell by whom. Held, that it could not be said that these facts were clearly irrelevant to the charge of murder.</p> <p>4. A prosecuting officer ought not to allude, before the jury, to the fact that respondent has put himself upon his privilege and declined to answer a question, even though it concerned a collateral inquiry of questionable relevancy; but such a remark is not sufficient ground for disturbing a verdict against respondent.</p> <p>5. It is within a trial court’s discretion, even in a murder case, to admit evidence out of its strict order.</p> <p>6. It was shown in a murder case that the victim had fired three shots after his assailant had fired at him. Respondent claimed that his victim had fired first, and showed that four barrels of the latter’s pistol had been lately discharged. The prosecution then showed, as if in rebuttal, that three had been discharged more recently than the remaining' one. Held, that though the prosecution had covered the ground, and the evidence was not rebutting, it was within the discretion of the judge to receive it.</p> <p>7. Whether taking merchandise away from the door of a store clandestinely, is not a larceny from the store itself, and therefore a compound larceny under How. Stat. § 9137 — Q.</p> <p>8. The right to arrest without a warrant remains, in Michigan, in a case of larceny which would be felonious at common law.</p> <p>9. Where the evidence of a larceny would in itself be sufficient for conviction, the plea that the act was done for fun, and while the person doing it was drunk, is not enough to protect him from arrest.</p>

<p>Adultery — Withdrawal of complaint.</p> <p>A prosecution, for adultery should he discontinued where the only person competent to make complaint asks leave to withdraw it. How. Stat. | 9279.</p>

<p>Appeal from Baraga. (Williams, J.)</p> <p>Foreclosure bill. Defendant Buppe appeals.</p>

<p>Error to Cheboygan. (Kamsdell, J.)</p> <p>Case. Defendants bring error.</p>

<p>Appeal from Kalamazoo. (Mills, J.)</p> <p>Bill to clear title. Defendant appeals.</p>

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

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

<p>Quo warranto — Ecclesiastical offices.</p> <p>The office of deacon is ecclesiastical, not statutory, and is controlled by the unincorporated membership of areligious association the decision of whose tribunals upon the election thereto is final. And the fact that the deacons are authorized by statute to be ex-officio trustees of the church on its civil incorporation makes no difference.</p>

<p>Probate law — Conflict of jurisdiction — Domicil—Foreign administrator cannot assign mortgage on Michigan land.</p> <p>1. The public administrator at St. Louis, Missouri, acting without the authority of a court, took possession of the personal assets of a resident bachelor who died there, leaving heirs in Michigan. Among the assets was a mortgage on Michigan land, which the administrator-sold at considerable loss and which a subsequent holder released. An administrator previously appointed in Michigan proceeded, however, to foreclose the mortgage. Reid, that even if the public administrator had had authority under the laws of Missouri to take possession of the assets, he had none to sell the mortgage.</p> <p>3. While personal property accompanies the person of the owner and is to be disposed of on his death according to the law of his domicil, it may still be necessary to have distinct proceedings in administration if the property is in one jurisdiction and the domicil in another.</p> <p>Ü. Proceedings by a foreign administrator under proper letters of administration cannot be attacked collaterally; but nothing can be presumed in favor of an administration that has not been judicially ordered.</p> <p>4. Comity in the recognition of a foreign' administrator is determinable by statute, or by usage as evidenced by judicial decisions.</p> <p>5. A mortgage in Michigan is a conveyance (How. Stat. § 5689) and cannot be foreclosed under the power of sale until it is recorded (id. §8948); and any assignment of- it for the purpose of foreclosure must also be of record and so must be the assignor’s authority. A foreign administrator cannot therefore assign a mortgage on Michigan land for the purpose of foreclosing it, nor can he discharge it; new letters must be taken out within the State before the mortgage can be foreclosed and the land sold.</p> <p>6. Where a mortgage upon real property in Michigan belongs to a person who dies in another State and whose estate is in course of regular and valid administration under a local administrator in Michigan, no foreign administrator can sell the mortgage claim to strangers; the title thereto is in the local administrator for purposes of administration, and only he can sue on it or assign or discharge it of record.</p>

<p>Error to Saginaw. (Gage, J.)</p> <p>Assault with intent to murder. Respondent brings error.</p>

<p>Error to St. Joseph. (Pealer, J.)</p> <p>Assumpsit. Plaintiff brings error.</p>

<p>Error to Genesee. (Newton, J.)</p> <p>Ejectment. Plaintiffs bring error.</p>

<p>Highways — Closing in town-line road — Public and private roads.</p> <p>1. A bill in equity to establish rights in a roadway will lie against neighbors who seek to enclose it: damages give no adequate redress. And complainant may properly base his right upon a claim of private way as well as of a public way, if the public right turns out to be imperfect.</p> <p>2. A road that has beea used and recognized for twenty-one years and had previously been laid out, surveyed, fenced and worked by the highway commissioners as a town-line road, is properly treated as a public highway even though it has been allowed to grow up in brush outside of the actual roadway.</p> <p>3. A decree recognizing a road as at least a private way when it was really public need not be' disturbed if the parties are satisfied and the public authorities are not parties to the suit, as it cannot destroy any public rights.</p> <p>4. The Constitution of 1850 did not abolish the then existing Highway Law beyond repealing the provisions for assessing damages in taking lands where the owners did not acquiesce.</p>

<p>Error to Manistee. (Barnsdell. J.)</p> <p>Assumpsit. Plaintiff brings error.</p>

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

<p>Corporations — Powers—Set-off—Depositions.</p> <p>1. In an action brought by a corporation called The Harrison Wire Company a claim of set-oil was based on transactions connected with its manufacture of a quantity of wire fencing. ■ Held, that as thpre could be no legal presumption that the corporation was not authorized by its charter to go into any branch of the wire business, the action of its president and secretary was presumptively valid to bind it by such dealings.</p> <p>2. Official statements and business correspondence as to the dealings of a corporation with the party to whom they run are corporate and not private acts, and admissible in proof of such dealings in an action between the parties, if material thereto; and this, though signed only by the name or initials of the secretary of the corporation.</p> <p>3. Money had and received is a proper basis of set-off. So held where plaintiff was to collect royalty on manufactures, the profits of which both parties were to share, and -returned an item of royalty actually collected so that defendant was compelled to advance the amount to the patentee.</p> <p>4. Answers to written interrogatories are properly stricken from a deposition which shows that they were based on hearsay; and where the interrogatories do not hppear, an appellate court cannot assume that they warranted the answers.</p>

<p>Promissory note — Consideration—Side-bar remarles.</p> <p>■Suit by an executor on a promissory note given to the testator. In reply to a question in the opening of the case, plaintiff’s counsel made the side-bar remark that he had an idea the note was given for a previous note given by the maker and found among the testator’s papers. Held, that this remark did not open the case to evidence by the defendant that he paid the previous note, on a claim that such evidence would disprove consideration for the note sued on.</p> <p>It came out on the trial that at some time near the date of the note in suit the testator sent his son to a bank with the maker to obtain for the latter a sum of money, but that they did not go. Held, that this fact did not warrant a presumption that the note in suit was without consideration.1</p>

<p>Chattel mortgage — Removal from files — Adjournments in justices' courts— Mortgage Wen — Res judicata.</p> <p>1. A chattel mortgage cannot be taken from the files in the town clerk’s office: it is part of the public records; a certified copy of it will serve to show the filing, and to use in taking possession of the goods covered by it.</p> <p>3. It is not a legal cause for the adjournment of proceedings in justice’s court, on the return day that the party asking it wants the assistance of counsel.</p> <p>8. A chattel mortgage does not cease to be a lien and the debt it secures is not to be considered paid merely because the mortgager has an offset against his creditor exceeding the debt,</p> <p>4. Agents and principals are not in privity with each other in respect to property rights, and the principal is not concluded in that regard by the judgment in- a suit brought against his agent. Nor does it make any difference that in such suit the piincipal was the agent’s attorney.</p> <p>5. A constable seized a horse under a chattel mortgage but the mortgager recovered it in replevin and then sold it. The mortgagee then brought trover against the purchaser. Held that he was not concluded by the judgment against the constable, even though the latter was his agent and he had acted as attorney for him in the replevin suit.</p>

<p>Trespass — Question of title.</p> <p>Forcible disturbance of peaceable possession is a trespass; and an action therefor involves no question of title.</p>

<p>Error to Mackinac. (Steere, J.)</p> <p>Assumpsit. Defendant brings error.</p>

<p>Common counts — Suit on non-negoiiable note.</p> <p>A non-negotiable promissory note for a valuable consideration may be sued by tlie payee, when absolutely payable, in an action on the common counts. So held of a railroad aid note conditioned on the completion of the road to a certain point.</p>

<p> Embezzlement. </p> <p>Intent to convert funds to one’s own use is a necessary element in embezzlement, and is a question of fact to be decided in view of the circumstances.</p>

<p>Appeal from Marquette. (Grant, J.)</p> <p>Bill to establish and enforce constructive trust. Defendant-appeals.</p>