Volume 56 — Michigan Reports

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

<p>Appeal from Eaton. (Hooker, J.)</p> <p>Foreclosure bill. Defendant Field appeals.</p>

<p> Negotiability —Promissory notes. </p> <p>An instrument promising to pay a certain sum to order, with interest at seven per cent, if paid when due, and if not, at ten per cent, from date, and agreeing to pay exchange and all expenses of collection, including attorney’s fee, is not a negotiable promissory note</p>

<p>Appeal from Manistee. (Judkins, J.)</p> <p>Bill to establish priority of claim against insolvent. Complainant appeals.</p>

<p> Transfer of personalty in fraud of execution creditors. </p> <p>1. A bill in equity will hardly lie to set aside as fraudulent conveyances of personalty on which complainant has levied attachment and execution. But if it would, it would be demurrable for failing to aver that the goods levied on are the same as those conveyed, and that | complainant has obtained a lien on them.</p> <p>2. Liens obtained on personalty by levy of execution do not in general require the aid of equity to enforce them, and transactions alleged to be fraudulent as against them are properly investigated in courts of law.</p>

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

<p>Case made from Kent. (Montgomery, J.)</p> <p>Assumpsit. Defendant had judgment.</p>

<p>Master and servant— Wages — Reeowpmeni for neglect of duty.</p> <p>1. Notice of recoupment in an action for a balance of salary is insufficient to justify proof of defendant’s neglect of instructions if it only in a general way sets up violations of duty as agent but gives no instances and does not specify the time and place thereof.</p> <p>2. Retention in service is proof of the servant’s right to wages until something is shown to the contrary, and the burden is not on him to prove that he has done everything incumbent on him, but is on the master to prove otherwise.</p> <p>3. An act of misconduct by a servant suing for his wages should ba proved by itself by way of set-off if it is to be relied on for that purpose, and cannot be introduced upon cross-examination.</p>

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

<p>Attorney General — Quo wwrranto proceedings on error.</p> <p>1. The Attorney General is the proper representative of the State in the Supreme Court in proceedings to which the State is a party; and no other attorney appearing without hik consent or approval to represent the public interest, will be recognized.</p> <p>2. Proceedings in the nature of quo warranto were instituted by the prosecuting attorney in the circuit court against an insurance company; and a receiver therefor, appointed by the Commissioner of Insurance in proceedings taken by him to wind up the company, was impleaded as one of the respondents. Judgment was in favor of respondents. Held, that the prosecuting attorney could not, without authority from the Attorney General, remove the case to the Supreme Court on writ of error.</p>

<p>Life insuremee — Suicide.</p> <p>An insurance policy limiting the payment, in cases of insane suicide, to the legal reserve, is valid if not prohibited by law, and if the reserve is ascertainable.</p>

<p>Malicious prosecution — Seasonable came.</p> <p>Defendant had a horse stolen from his pasture. A man of bad reputation, who had served a term in prison and was then under criminal accusation, told a story connecting plaintiff and his son with the larceny. Defendant for some time took no notice of this story, but after three weeks or so went to a Justice and obtained a warrant for plaintiff and his son, on which they were arrested in the night-time, handcuffed and taken to the jail. Defendant with others was with the officer when the arrest was made and the parties taken away. The warrant was obtained without evidence, and the case was continued before the Justice for three weeks, and was then voluntarily aband- . oned. Plaintiff then brought an action for malicious prosecution.</p> <p> Held </p> <p>1. That defendant when he applied to the justice for a warrant was bound to state to the justice any facts tending to detract from the credibility of the charge against the plaintiff, and if his information came from such a source that he gave it little or no credence himself, he should have stated the fact.</p> <p>2. The defendant in thus procuring a warrant "without evidence and accompanying the officer who made the arrest in the night-time, is responsible for the conduct of the officer and those who accompanied him, in what they did with his apparent acquiescence.</p> <p>3. A story of crime which in itself or from its source is so incredible or so untrustworthy that a party does not venture to use it as evidence for others to act upon, will not justify him in acting upon it himself to the serious prejudice of others.</p>

<p> Assessment of guardian on ward’s legaay. </p> <p>The assessment of a guardian upon an undistributed legacy to his minor ward is invalid in Michigan (Act 9 of 1882, sec. 11); and the guardian’s previous acquiescence in the assessment as a member of the Board of Review cannot bind the ward,</p>

<p>Be.issue of patent — Interests under joint conveyance — Action for share of payment.</p> <p>1. Re-issue oí a patent is to cure defects and cannot destroy vested rights; and under a re-issue to other persons than the original patentees purchasers who have notice of previous equities are bound by them.</p> <p>3. A conveyance of a chattel interest to two persons does not necessarily give them equal rights therein, and their actual interests as between themselves may be shown.</p> <p>8. Testimony as to what interest was supposed to be conveyed in a sale is proper to identify the subject of the sale if it does not contradict the writings.</p> <p>4. AH rights under a coal-mining patent were disposed of in fraud of one of the original joint-owners, and he sued for his share of the payment made for a particular territorial right. Held not improper for him to state that he was the inventor, as his patent could not have issued without such showing; nor to show the character and workings of the invention as bearing on its effectiveness in the territory sold; and where defendant had confounded the joint interests and had not kept them separate he could not complain of estimates of value based on the extent of the coal-fields, nor that the court had suggested to the jury a certain proportion, as low as any shown by the testimony, which they might use if they were satisfied with it as indicating the ratio between the entire coal-yield and that of the territory in question.</p> <p>■5. One who sues for his share of a payment can sue as for money had and received if he can show by any evidence how much belongs to him, and notwithstanding the fact that defendant has lumped the whole amount so that there is no direct way of showing it.</p>

<p>Error to Wayne. (Chambers, J.)</p> <p>Debt. Plaintiff brings error.</p>

<p>Zand-contn'aat — Execution—Part performance — Ratification—Recoupment.</p> <p>1. A contract for the purchase of land signed by a son in his father’s name without written authority from, the father, is inoperative and void. How. Stat. § 6181.</p> <p>2. The effect of part performance on a void contract is not to make it enforcible at law, but to raise such equities against whichever party permits the other to rely on it as may justify a court of equity in enforcing it specifically against him.</p> <p>Such might be the case where a contract purchaser of land had stripped it of timber so that the vendor could not be placed in statu quo ante.</p> <p>8. Part performance by a vendee cannot make a contract valid against any vendor as to whom it was executed without his authority, unless there is some distinct act of ratification on his part that would establish a mutuality of obligation between himself and the 'vendee.</p> <p>4. The ratification of a contract by an indorsement of approval upon it, does not bind the party making it or give the adverse party rights so long as it is not delivered or the indorsement is not made on he latter’s duplicate. And the ratification, until then, may be withdrawn, or the indorsement erased.</p> <p>5. Bringing suit at law upon a contract cannot affirm it if void, for there must be a right of action to sue on.</p> <p>6. In an action for an unpaid balance on a land contract it is proper to show by way of recoupment that in consequence of the institution of a suit involving the validity of plaintiff’s title, payments were deferred by mutual agreement, and that meanwhile the timber on the land was so far destroyed by fire as to lessen the value of the land.</p> <p>7. A contract purchaser without a deed is protected by his good faith only so far as he has made payments if meanwhile he has notice of litigation involving the validity of his vendor’s title.</p>

(Newton, J.) Divorce bill. Complainant appeals. The bill alleges and the proofs tend to show that in addition to treating his wife coldly and with extreme stinginess the defendant brutally neglected her while in premature labor and harshly upbraided her for the noise she made while suffering pain during her illness.

<p> Garnishment of mortgagees in possession. </p> <p>1. Whether the mortgager or mortgagee of chattels has possession, the property right of the former is only to the residue after payment of the mortgage.</p> <p>2. If the mortgagee of chattels takes possession prematurely he does not thereby become liable for the price as for conversion of the whole, nor will he be answerable for the value of the whole property until he has disposed of it. And even in case of conversion he will be responsible for the balance only, after his own debt is paid.</p> <p>3. A chattel mortgagee’s right of possession becomes absolute upon default and remains so until all of the debt is realized from the property; and if possession is prematurely taken it may be retained subject to the mortgager’s right of redemption on payment of so much as is not realized, or possibly of .reclamation until default.</p> <p>4. The right of a mortgagee of chattels to take possession of them is favored by statute and is unquestionable unless the mortgage contains provisions to the contrary. And the mortgager’s right to retain possession is measured by the mortgage.</p> <p>5. Garnishment process cannot affect the contract rights of mortgagees, and cannot reach goods mortgaged by the principal defendant but in the mortgagee’s possession.</p> <p>6. The right of a mortgager of chattels to redeem can now be levied on or attached, in Michigan; but the levy must not injure the mortgagee’s possessory right, and sale thereon can only be of the general residuary interest.</p> <p>7. The right sometimes reserved to the mortgager of chattels to retain possession and dispose of them in the course of trade is a conditional bailment which will be terminated by any change or enlargement of the reserved privilege without the mortgagee’s consent; or by any diversion of the proceeds of sale from the designated object. The right is not assignable or independent.</p>

<p>Raik'oad fencing — Injuries to Uve stock.</p> <p>A flock of sheep wore killed by a railroad train in tlie neighborhood of a cattle-guard at a highway crossing. There was testimony that the fencing near by was and had long been insufficient, and that the cross-fence was two feet short of the cattle-guard and the cattle-guard was shallow. Held, that in an action against the railway company for damages the case was properly left to the jury.</p>

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

<p>Q uitclaim — After-acquired title — Laches.</p> <p>1. A quitclaim deed can never inure to convey any subsequently acquired title not actually owned in equity when the deed was given. But it will convey land thereafter patented if the grantor has already bought and paid for it and obtained a land-office certificate that passes everything but the formal title.</p> <p>2. Delay of eighteen years in bringing suit to quiet title, when complainant during all that time' has known of the defect in it and how to perfect it, would go far to defeat the proceeding, even if based on equity.</p>

<p>Municipal Contraéis — Bids.</p> <p>Whether, where work to be done under a municipal contract involves! operations the difficulty and cost of which cannot be accurately fore-1 seen, there can be any flexibility in the terms of the contract and any scope for a choice among bids — Q.</p>

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

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

<p>Error to Kent. (Montgomery, J.)</p> <p>Appeal from allowance of claim against estate. The claimant brings error.</p>

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

<p> Accidental injury. </p> <p>A workman caught his sleeve in the exposed cogs of an ordinary planing machine, and hurt his hand. He had run the machine for only a day or two, but he had worked within a few feet of it for two-years and more, and among similar machinery for twenty-five years. Held, that the injury was accidental, and the workman, who must have been familiar with the machine, could not- recover on the ground that his employer was negligent in setting him to work at it without having the cogs covered.</p>

<p>Error to Wa’yne. (Chambers, J.)</p> <p>Trover (with special counts). Plaintiff brings error.</p>

<p>Appeal from Wayne. (Full court.)</p> <p>Foreclosure bill. Complainant appeals.</p>

<p>Replevin for attached goods — Ra/magesfor use.</p> <p>I. One who has a right to use property at will can replevy it from any wrong-doer, as, for example, from a sheriff’s officer who has taken it on an execution issued against another person.</p> <p>3. A deputy-sheriff who has seized goods under an attachment has no right to make use of them while holding them; aud therefore, when he prevails in an action of replevin against him, he has no right to damages for being deprived of their use</p> <p>ff. In replevin for goods wrongfully attached the fact that defendant in attaching them was a wrong-doer in respect to some third person can form no basis for investigation or judgment.</p>

<p>Fraudulent Debtor Aet — Affidavit for wrest — False imprisonment — Fh>idence — Motive—Jurisdiction.</p> <p>1. An affidavit for an arrest under the Fraudulent Debtor Act must show affirmatively that the facts relied on are within affiant’s knowledge.</p> <p>2. The facts that a debtor has admitted that he has sold his stock and refuses to pay more than thirty cents on the dollar, and that the sale was made at less than half the value of the goods, are not in themselves sufficient to warrant his arrest under the Fraudulent Debtor Act.</p> <p>3. Proceedings under the Fraudulent Debtor Act can only be taken before the magistrate who has before him the civil proceeding to which they are collateral.</p> <p>4. All circumstances tending to show the character and motives of persons who have caused an arrest are admissible to show whether their conduct was malicious or not in an action against them for false imprisonment.</p> <p>5. A justice of the peace cannot be both magistrate and counsel ; and in an action against him for false imprisonment his acting in both capacities can be shown not only as evidence of malice but of want of jurisdiction. And in such an action his own entries are not conclusive in his own favor, nor does plaintiff have the burden of proving all papers and proceedings: defendant himself must justify if he relies on authority in an action of trespass.</p>

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

<p>Costs — Judgment against surety.</p> <p>1. Judgment for costs was authorized by How. Stat. § 7663 to be entered against a surety, if entered immediately. Held, in good time, where judgment against the sureties was asked for at the outset, but the clerk in entering a final judgment for the costs of all the courts did not notice that there were sureties and motion was therefore made in the Supreme Court for judgment against them.</p> <p>2. Judgment against sureties for costs must be limited tc the penalty of their bond.</p>

<p>Error to the Recorder’s Court of Detroit. (Swift, J.)</p> <p>•Information for falsely and fraudulently altering railroad tickets.</p>

<p>Exceptions from Saginaw. (Gage, J.)</p> <p>Information for larceny.</p>

<p>Exceptions from Ottawa. (Arnold, J.)</p> <p>Complaint for not keeping saloon closed on Sunday.</p>

<p>Passing counterfeit money — Oha/rge to jury.</p> <p>1. In a prosecution for passing counterfeit money it is relevant to the question of guilty knowledge to show that on the same evening and in the same town there were other instances of the same offense, even though the person guilty of it could only be identified with the respondent in general appearance.</p> <p>2. Where there is evidence in a criminal case tending to support the judge’s version of the facts, and the fair construction of it is not misleading, his direct narration of the facts in his charge, though hardly proper, is not clearly ground for disturbing the judgment</p>

<p>Construction of statutes — Mortgage of subsequently acquired interest — Surplusage.</p> <p>1. The Revised Statutes of 1846 constitute but one act of the Legislature, and all its correlated provisions must be construed together.</p> <p>2. A widow who had a life estate in land of which her'children were residuary devisees, gave a mortgage on the land. One of the children afterward died, so that as the child’s heir she became entitled to a share in fee. Reid, that as long as there were no outside equities, such as may rise with subsequent purchasers, the interest she acquired by inheritance inured in aid of the estate. How. Stat. § 8506.</p> <p>8. How. Stat. § 8506, in declaring that a deed of mortgage shall vest in the grantee all the interest which the’ mortgager had at the time of executing the mortgage, or at amp time thereafter, does not enlarge any estate definitely limited in the mortgage, but as between original parties may bind a subsequently acquired interest.</p> <p>4, The mere addition of the title “guardian” to the name of a mortgager will not of itself invalidate the mortgage where it is manifestly not the purpose in giving it to act as guardian.</p>

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

<p>Private action based on public grievance— Variance — Proximate cause.</p> <p>1. Au individual can sue for the special injury resulting to himself from defendants’ neglect to perform a public duty; so held, of an action against a railway company for the personal damage caused by leaving its cars standing across a highway for a longer time than is allowed by statute. How. Stat. g 3823.</p> <p>2. There is no material variance between an allegation of the obstruction of a highway in a specified township and proof that a street in a certain village was obstructed, if it appears that the village was in the township,</p> <p>3. The expense incurred from being detained until it was too late to take a particular train is a proper item of damages in an action for the injury caused by such obstruction of a highway as resulted in such detention.</p>

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

<p>Village representation on ioa/rd of 'supervisors — Legislative power.</p> <p>1. The Mackinac charter (Act 303 of 1875, § 12) is not unconstitutional in making the President of the village ex officio a member of the county board of supervisors.</p> <p>2. The legislative power of the people through their agent, the Legislature, is limited only by the Constitution, which is not a grant of power, but á limitation on its exercise.</p> <p>3. A statute is not unconstitutional unless in plain violation of some provision in the Constitution; and its constitutionality will bfysupported by all possible presumptions not clearly inconsistent with the language and subject-matter.</p>

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

<p>Contempt — Non-payment of alimony.</p> <p>1. Personal demand is pre-requisite to a commitment for contempt in not paying alimony. How. Stat. § 7260.</p> <p>2. An order for the payment of alimony is not such original process as need be served within the territorial limits over which a municipal court has jurisdiction.</p>

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

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

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

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

<p>Error to Superior Comí;'of Detroit. (Chipman, J.)</p> <p>Assumpsit. Defendants bring error.</p>

<p>Mortgage — Rights of execution purchaser — Foreclosure against husband.</p> <p>1. An execution purchaser who buys land subject to a mortgage can have no equities against the mortgage, and it does not concern him how the owner disposes of it.</p> <p>% A married woman can acquire a mortgage against her husband and on his land as freelv as she can take any other existing security; and as it is not her obligation she can foreclose it even though she joined iu it to release her right of dower.</p>

<p>Boundary — Surveyedline—Question for jury. .</p> <p>The true location of a disputed section line is a question of fact for a jury where the evidence of the original surveyor and that of a subsequent one are in conflict.</p>

<p>Specific performance— Uncertainty.</p> <p>1. A bill in equity is no evidence for complainant; and where the case is submitted on bill and answer, and no exceptions are filed to the latter, relief must be based on the admissions in the answer. And if it denies or does not admit any averment that is material to the prayer for relief, the bill must fail.</p> <p>2. Specific performance was asked of a contract to convey a strip of land described as “ four rods wide along the St. Cosme line road, or if necessary to cover a certain ditch or water-course the said strip of land is to be five rods * * * or any other width not to exceed five rods.” The bill staled the amount of land as “five rods wide * * * and of sufficient width to cover a ditch or water-course * * * said strip being about five rods wide and being two and twenty-hundredths acres of land.” The answer denied the statement of acreage. The decree required a conveyance of four rods, “containing two acres and twenty-hundredths of an acre.” Held, that the contract was too uncertain to he enforced without extrinsic evidence, and that the decree, which followed neither contract nor bill, was unwarranted.</p>

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

<p>Partnership — Settlement of balances — Limitation of actions — Pant payment— New promise — Nudum pactum.</p> <p>1. Part payment of a demand, though neither a contract nor in itself a promise, is an acknowledgment of the continued existence of the demand, and waives the right to plead the statute of limitations upon such lapse of time as may have preceded the payment. And it renews from its date whatever right of action existed before.</p> <p>3. A part payment cannot give vitality to a void promise to pay.</p> <p>8. One partner cannot at law sue another after dissolution of the firm, for the amount which would have been due him on an accounting, unless defendant lias expressly promised to pay it. But a payment made after the statute of limitations has run is not such a promise; and a promise then made, though based on a good consideration would be nudum pactum if not in writing.</p>

<p> Mandamus'to recognize official status. </p> <p>Where a municipal charter provided that the supervisor of the city should “with the mayor, represent the city in the county board of supervisors,” mandamus .was granted to compel the board to recognize him. And where it was claimed that the provision was an inadvertence, the fact that for three years the mayor’s predecessors had not gone to law to compel the recognition of their right to sit with the board, was not entitled to much weight as a contemporary construc- » tion of the charter.</p>

Habeas Corpus. The petitioner for the writ was the father of Lucile, who was a child of five or six, and then in the care of her dead mother’s parents. There was ■ a showing that the character and habits of the father unfitted him for the custody of the child, and that the respondent grandparents were able and disposed to bring her up properly.

<p> Mandamus to pay town orders. </p> <p>An order to show cause why a township should not pay a town order is fully met by a return showing that it was fraudulently issued without consideration and without any allowance by the proper authorities.</p>

<p>Stenographers — fees.</p> <p>The statutes relating to stenographers, contemplate that they shall receive annual salaries and are accordingly on duty not only during the sessions of court but at other times, so that a per diem allowance by a board of supervisors, in place of a salary, is unauthorized.</p>

<p>Question for jury — Gift or bequest. .</p> <p>A dying man, wbo owned a couple of notes, gave them to a priest to pay for masses and funeral expenses. He also asked the priest to draw his will, which the priest did, but in doing so he accounted for the notes by describing himself as legatee thereof, and it is said he did so without testator’s direction. The will was void for defective execution. Held, in trover by the administrator against the maker of one of the notes, that it was for the jury to decide whether the transfer of the notes to the priest was meant as a gift or a bequest.</p>

(Pealer, J.) Bill to foreclose: cross-bill for allowance. Culver gave a mortgage to Dennis for $1000, and assigned to him as collateral a mortgage which Sharer had given him. Dennis assigned both to Lewis, and Lewis sought to foreclose against Sharer and Culver. Sharer filed a cross-bill against Lewis and Culver, asking that so much as he claimed to have paid on his mortgage to Culver should be credited thereon. Sharer appeals.

<p>Ante-mortem probate — Notice to widow — Judicial action.</p> <p>1. Mandamus is a proper process for setting a court in motion, but not for reviewing its affirmative judicial action if there is any other effectual remedy.</p> <p>2. A widow’s right to administer upon her husband’s estate or to name a guaidiau for children under fourteen, is substantial and gives her such an interest as would entitle her to notice of any judicial proceedings that may be taken to establish a will which might divest her of it, and which she claims to be invalid.</p> <p>3. Act 25 of 1883 providing for the ante-mortem probate of wills contemplates (he preservation of a widow’s statutory right to administer or to nominate guardians, but as its own enforcement is inconsistent with the maintenance of these rights it is inoperative.</p> <p>4. The action of a court in affirming an order appealed from amounts to an assertion of jurisdiction, and is improper where the court considers the proceeding extra-judicial. So held where the ante-mortem probate of a will was denied and the appellate court affirmed the order on the ground that the statute authorizing it was unconstitutional and conferred no authority. The proceeding should rather have been quashed or dismissed.</p> <p>5. An order denying the probate of a will should not be affirmed without a hearing on the merits.</p> <p>6. Nemo est lucres mentis is a maxim established by statute as well as at common law. A man and his possible heirs cannot be parties in conflicting interest, and it is to litigation between such parties only that judicial power is limited. A statute therefore that provides for the probate of a will before the testator’s death and leaves him at liberty to revoke or alter it, or by removal from the jurisdiction to escape the effect of any action under it, is inoperative and void because it does not provide for any proceedings that can be conclusive or are in any proper sense judicial.</p>

<p>Appeal from the Recorder’s Court of Detroit. (Swift, J.)</p> <p>Proceedings to open and widen a street. Respondents Chaffee appeal.</p>

<p>Negligence — Demurrer— Work outside of hours of labor.</p> <p>1. Where not demurred to, a declaration for negligent injury must be held sufficient, after verdict, if it stated a cause of action though it did not specify the negligence, and especially if it counted upon other negligence which it did set forth. So held where a workman sued his employer for an injury suffered from the use of defective machinery and did not point out the defect, but also averred as negligence that he had been set’at work that was outside the scope of his employment.</p> <p>2. An employer cannot escape liability for an injury suffered by a laborer while at work for him, on the ground that he was hurt outside of working hours and therefore while not in his employment.</p> <p>■'8. A workman who stays upon his employer’s premises during the noon recess to eat his dinner is not a trespasser; he has implied permission to slay there, and if called on to resume work before the recess has expired it is his duty to do so. And whatever he does under such circumstances is within the scope of his employment, and to that extent not voluntary.</p> <p>4. Whatever a workman does under competent authority for the comfort and convenience of his fellow workmen is presumed to be for his employer’s benefit, and such work is not so foreign to his employment that he would be justified in refusing to do it. So held where a workman was called upou during noon recess to open a ventilator and was severely injured while doing it.</p>

<p>Appeal from St. Joseph. (Pealer, J.)</p> <p>Foreclosure bill. Defendant Anna appeals.</p>

<p>Appeal from Ionia. (V. H. Smith, J.)</p> <p>Bill for accounting.. Complainant appeals.</p>

<p>Appeal from Oakland. (Sticknejr, J.)</p> <p>Bill to set aside deed. Defendant appeals.</p>

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

<p>BUI to compel payment — General demurrer — Parties—Laches—Foreign administration.</p> <p>1. A bill to compel payment of tbe purchase price on a contract of sale is in the nature of a foreclosure bill, and not demurrable as praying a forfeiture, since tbe court bas power to protect all equities when the-rights under the contract are determined, and to order a sale, if necessary, for tbe satisfaction of moneys due.</p> <p>2. A bill to obtain payment for land contracted to be sold is not demurrable generally on tbe ground that complainant does not own tbe title to all the lands, but that part of it is in one of the defendants; if all parties are in court it is enough, and a demurrer admits them to be if so alleged.</p> <p>3. Lapse of time is not ground for demurring to a bill, the object of which is to obtain payment on a land contract; it tells against the purchaser who has failed to demand a conveyance, rather than the seller.</p> <p>4. A bill filed by persons claiming as assignees of foreign executors is not demurrable on the ground that the will was probated in another state, if it appears that letters of administration based on the foreign probate have also been issued in the state where suit is brought.</p> <p>5. General demurrer challenges equities and not faults of pleading.</p> <p>6. It is not ground for general demurrer that a bill does not show that executors, under whom complainant claims, had power to sell, to the exclusion of heirs.</p>

<p> Hfiectment for dower after dvoorce. </p> <p>A wife who has obtained a divorce for adultery can thereafter maintain ejectment for dower in the lands of her husband, whether he be living or dead. How. Stat. § 6246.</p>

<p>Laches — Eeformation of land contract.</p> <p>1. After fifteen years’ delay in seeking relief a contract to sell land was reformed by cutting down the price where the vendor had obtained the signature of an illiterate purchaser to a substituted contract in which the original purchase price was doubled, and had made him believe, when he found it out, that the change was an unsubstantial formality, and had allowed years to pass without calling for payments.</p> <p>2. A defense to a bill in equity fails so far as it depends on any affirmative showing, where the evidence can only be used to establish an entirely different defense from that which the answer outlines.</p> <p>3. Where a case for the correction of a writing depends on parol evidence it is not necessarily established by disproving the defense,though such disproof may aid complainant’s prima facie showing.</p>

<p>Error to Lenawee. (Howell, J.)</p> <p>Trespass. Defendants bring error.</p>

<p>Deed — Condition subsequent.</p> <p>1. A condition defeating'a conveyance if the grantee, his heirs or assigns shall sell or permit the sale of liquor on the premises is valid; and this, too, though the sale of liquor is tolerated by the State.</p> <p>2. Conditions in a deed are void if against public policy; otherwise, though they waive legal rights, they may be enforced subject to the rule that the law favors covenants rather than conditions, and is inclined to a strict construction as against forfeitures. But the construction must not be strained or unreasonable, or one that was plainly not contemplated by the parties. And the party for whose benefit the condition is made waives it by any act which would make its enforcement unjust.</p> <p>8. A condition which forbids the sale of liquor on premises conveyed is not made “merely nominal” (How. Stat § 5562) by the fact that liquor is sold in the neighborhood, or that there is no proof of its sale to the grantor’s servants.</p>

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

<p> Notice of foreclosure sale. </p> <p>A statutory foreclosure sale must not be made for twelve full weeks after the first publication of notice thereof: twelve weekly publications before sale do not of themselves make the sale valid.</p>

<p>Esirays — Replevin—Identity.</p> <p>In replevin for impounded cattle defendant gave' notice that he would show they were running at large on the highway. On the trial he offered to show that they were part of a large herd that were on and off the highway at pleasure, and with only a thirteen-year-old boy to look after them, but he declined to assume the burden of showing that these particular cattle were actually in the highway themselves. Held proper to exclude the evidence offered, and to order a verdict for plaintiff.</p>

<p>Vendor and pu/rchaser — Division of costs of litigation of title — Gormpound interest.</p> <p>1. A contract is valid whereby the vendor and purchaser of land agree that the costs and expenses incurred by the latter in a joint defense against an ejectment suit for the land and in a proceceding to enjoin such suit, should be equally divided and that the latter’s share should be indorsed upon a purchase money mortgage given by him to the vendor.</p> <p>2. Compounding of interest is not authorized by How. Stat. § 1599 for the period during which payment is suspended by litigation to determine title to the land, pending which the rate of interest is reduced by agreement.</p> <p>3. Interest does not run after sufficient tender has been made.</p>

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

<p>Builder’s lien — Municipal contract— Ultra vires.</p> <p>1. Builders’ liens cannot attach to public buildings, unless permitted by statute.</p> <p>2. Where sureties for building contractors assume the contract they can claim nothing under it which the original contractors could not.</p> <p>3. It is not ultra vires for a municipal board, in contracting for a public building, to stipulate that payments were not to be made to the contractors so long as any claims for work or materials stood against them.</p>

<p>Appeal from Calhoun. (Hooker, J.)</p> <p>Rill for accounting. Complainant appeals.</p>

<p>Malicious prosecution — Perjury—Justice’s memoranda of testimony-Weight of evidence — Probable cause — Nolle prosequi — Intent.</p> <p>1. A person against whom criminal proceedings were instituted for perjury alleged to have been committed by him in a case to which he was a party in justice’s court, sued for malicious prosecution. In this suit the justice was produced as a witness for plaintiff and testified that he could not recollect all that was sworn to before him, but had some portion of it minuted down. Held, that he could produce his memoranda, after testifying that they were made at the time the testimony was given, and were correct.</p> <p>But such memoranda are not conclusive as to the facts sworn to, and are entitled to no more weight than the testimony of the witness would have if he were testifying from recollection; the weight of the ■evidence is for the jury, who must also decide whether the memoranda were correctly made and what they tend to prove.</p> <p>2. A trial judge may instruct the jury as to the weight that belongs to different classes of evidence, but not as to that of specific testimony or particular witnesses. Nor can he state whether evidence is sufficient to prove a fact, except where he merely gives a rule of law that fixes what is required.</p> <p>3. The conclusion reached by a justice upon examination in a criminal proceeding as to whether there is prohable cause for commitment, is not final upon that question.</p> <p>4. The journal entry of an order in a criminal proceeding that “the prosecuting attorney filing reasons therefor,” “ he have leave not to file an information ” is conclusive that he has filed reasons and that the prosecution is at an end. He does not have to have leave to file reasons. How. Stat. § 9553.</p> <p>'5. Defendant in an action for malicious prosecution may testify whether, when he made the complaint upon which proceedings were instituted against the plaintiff, he believed it to be true. Such belief, however, is a question for the jury, and defendant’s testimony has no more weight than that of any other witness.</p> <p>6. Plaintiff in an action for malicious prosecution must show that the proceeding on which it was based was begun maliciously and without probable cause; defendant may show the contrary by his own testimony.</p> <p>7. The mere belief of a person making a criminal complaint, that it is true, does not alone justify a prosecution thereunder; it must rest on reasonable grounds and on such facts as would lead a person of ordinary caution to honestly suspect the accused of guilt.</p> <p>8. Where intent or motive is involved in the issue, the rule in Michigan is that the person to whom it is imputed is competent to testify thereon unless his testimony would be excluded by statute or by some principle of evidence.</p>

<p>Gertiora/ri — Brain proceedings — Public notice.</p> <p>1. Certiorari to review the action of a township drain commissioner in laying out a drain and in levying a tax to pay for it, was sustained by the Supreme Court where the plaintiff had seasonably sought the proper remedy at first but had lost it without his fault, and where its allowance would not stay anything but the collection of his share of the tax.</p> <p>2. The return to a writ of certiorari is not necessarily conclusive as to statements in the petition therefor that do not go to the merits but are made merely by way of excuse for delay.</p> <p>8. The argument ab inconvenienti against the allowance of certiorari iu drain proceedings does not go to the jurisdiction.</p> <p>4. Public notice must be given before a contract for making a township drain can be let. How. Stat. § 1708.</p>

<p>Appeal from Livingston. (Newton, J.)</p> <p>Foreclosure bill and cross-bill. The Bank appeals.</p>

<p>Q-arnishment — Assigned claims — Unrecorded, chattel mortgage.</p> <p>1. Only such exceptions can be considered on review as depend on faults in the record.</p> <p>2. It seems that the issue in garnishment can he tried on the same day with the principal suit if the garnishee is willing; and if such trial is had without objection at the time it cannot afterwards be said to have been premature.</p> <p>3. A garnishee cannot be forced to trial within two days from the trial of the principal suit (How. Stat. § 8070); and if the principal defendant appeals, a judgment in garnishment, if rendered, can be stayed until the judgment appealed from is disposed of.</p> <p>4. Garnishment process in circuit court may be based on several non-negotiable contract claims held by assignment, and aggregating enough to bring the principal action within the jurisdiction of the court.</p> <p>5. A chattel mortgage not seasonably filed is absolutely void as against creditors whose rights have intervened between its making and filing.</p> <p>6. Garnishment process will reach assets that are covered by an unrecorded mortgage made before the debt was incurred for which the mortgagee is garnished. And no previous proceedings need be taken to exhaust other remedies.</p>

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

<p>Appeal from St. Joseph. (Pcaler, J.)</p> <p>Creditor’s bill. Complainant appeals.</p>

<p>Appeal from Branch. (Pealer, J.)</p> <p>Bill to correct description in deed. Complainant appeals.</p>

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

<p>Estoppel — Relation—Tax-title—Remedy at law.</p> <p>1. Where both parties to a conveyance of land that is mortgaged suppose that a title in fee is being transferred, though in fact it is not, and the grantor afterwards purchases the land at the foreclosure sale, he is bound in equity to recognize the grantee’s right to a perfected - title. And if he farther becomes a party to an arrangement whereby a third person takes a deed from the grantee and gives back a mortgage that he, the grantor, disposes of for his own purposes, he is then estopped from disputing that his original deed conveyed title and that his foreclosure purchase related back to it.</p> <p>2. Possession of a tax-title does not necessarily prevent one from relying on an equitable title, and compel him to seek a remedy at law: it is when it appears upon his case in equity that he has such remedy, that the court in chancery should remit him to it.</p> <p>3. Whether the record of a tax-title is constructive notice that the holder claims the land on which it rests — Q.</p> <p>4. A remedy at law by an action of ejectment is inadequate where a judgment would still leave complainant’s title clouded.</p>

<p>Railway crossing — Negligent injury — Contributory negligence — Age of pa/rty injured — Experts—Exceptions—Declaration.</p> <p>1. Where a right and duty concur, as where the exercise of the right is contingent on the performance of the duty, the mere failure to discharge the duty is negligence if a third person is injured in consequence.</p> <p>3. It cannot be said as matter of law that a highway crossing is not obstructed by cars when a space of only sixteen feet is left open; it is a question of fact for a jury, depending on the circumstances.</p> <p>track by a road -which crossed the track at an acute angle. A freight train on the track lay, apparently, across the road, but after waiting ten minutes for it to move the travelers came nearer and found that a space of sixteen feet was left open. The cars, however, on both sides projected somewhat over the traveled part of the road, and in avoiding them the man, who was driving, had to turn his horse so as to cross the track at a right angle, hut the horse sheered and the cutter left the planking and was upset and the woman was injured. Held, that it could not be said as matter of law that she was guilty of contributory negligence. 3. A man and his wife riding in a cutter were approaching a railway</p> <p>4. The age of a person injured in crossing a railway track m a cutter driven by another may properly be considered in an action against the company for the injury, as bearing upon the question of contributory negligence.</p> <p>5. The contributory negligence of a person injured in trying to drive across a railway track is not conclusively shown by the fact that others had just crossed it safely; the fact may tend to prove it, but the question is for the jury.</p> <p>6. If an injury results from the neglect of a railroad company to observe the statutory rule that it shall not leave cars standing across a highway more than five minutes at a time, the company is guilty of negligence and liable for the injury if the person who suffered was not in fault.</p> <p>7. One does not lose the benefit of an exception merely because the trial judge has failed to rule definitely upon the objection on which it is based, but has permitted the case to proceed subject to the objection, reserving it for consideration.</p> <p>8. A declaration against a railway company for negligent injury states a good cause of action in alleging that defendant, in placing its cars so as to obstruct a highway crossing and in leaving them there, has so negligently conducted itself as to cause the injury.</p> <p>9. A freight train lay on a siding to await a coming express, and at a point where a highway crossed the siding the train was divided. The cars on both sides of the road somewhat encroached upon the traveled part of the highway, and a person crossing in a cutter was injured because the driver was obliged in consequence to turn sharply so as to avoid the cars, and as the horse then sheered, the cutter struck a rail and was upset. Held (1) that it was proper to show by the testimony of a by-stander that there was room enough on the siding to accommodate the train without encroaching on the highway, —which was not a question for an expert; (2) that the testimony was relevant as rebutting the presumption that the railroad company had done its full duty in putting the cars where they ought to be, since its failure to do so might not be negligence in itself but only under the circumstances of the case.</p> <p>10. A woman sixty-five years old suing for a personal injury disabling her from work was properly allowed to testify that the preceding season she had one day done all the work of feeding fifteen threshers, and before.the injury had done all the cooking for her household, but could not do it since; such evidence was not too remote, nor matter for experts.</p>

<p>Appeal from the Superior Court of Detroit. (Chipman, J.)</p> <p>Bill for accounting. Complainants appeal.</p>

<p>Review upon findings — Foreign law.</p> <p>1. A man was sued in Michigan upon an Illinois note governed by Illinois law, the principal question being whether he was a guarantor or an indorser. The trial court found him an indorser, and no exception was taken to this conclusion as one of law, nor any to show that the evidence of the Illinois law did not sustain it as a conclusion of fact. And there was no special finding as to what the law was, except as to the liability of indorsers. Held, that the finding must be sustained.</p> <p>& The Supreme Court in reviewing cases at law will assume that all conclusions of fact were warranted.</p> <p>3. Questions dependent upon foreign statutes cannot, in cases at law, be presented to the Supreme Court upon proof in that Court as to what the foreign law is, unless the record shows how it was proved below, so that it may be seen whether the lower court erred on the showing made.</p>

<p>Proof of contents of letter — Letter-press copies — Value—Statute of frauds— Sale.</p> <p>1. The contents of a letter can be proved by the recollection of the recipient and by that of others to whom a letter has been shown which is identified as the one in question, if proof is made that diligent search has been made for the letter itself and that it cannot'be found.</p> <p>2. The refusal to admit letter-press copies of letters written by one party to the husband of the other cannot be assumed to be error; and if the hill of exceptions does not show their purport their materiality cannot be determined, even if they would otherwise be admissible, which is questionable.</p> <p>3. One need not be a real-estate dealer to testify as to the value of real estate.</p> <p>4. The Statute of Frauds does not exclude the liability of a purchaser to pay for land purchased where there is no written evidence of such liability.</p> <p>5. Every transfer of land for an equivalent is practically a sale, and money’s worth is as much a valuable consideration as money. The right of dower, however, where lands are exchanged, may possibly be confined to one of the parcels.</p>

<p>Error to Alpena. (Emerick, J.)</p> <p>Trespass. Plaintiff brings errqr.</p>

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

<p>Defense °f possession by contract purchaser — Evidence—Denial of specific performance.</p> <p>A man entered upon land and put up a shanty, claiming the right to do so under a contract of purchase. The owner, however, aided by his wife, tore down the shanty and forcibly ejected the intruder who seems to have used force also in defending his possession, and afterward had the woman and her husband arrested. The woman then sued him for assault and battery, malicious prosecution and false imprisonment. Upon the trial plaintiff offered in evidence a decree refusing to defendant the specific performance of the contract, and it was excluded. It seems that it should have been admitted. But defendant’s right to specific performance could not be litigated in this suit. And the woman could have no greater right as against defendant than her husband could, if the assault had been upon him.</p>

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

<p>Error to Schoolcraft. (Steere, J.)</p> <p>Assumpsit. Plaintiff brings error.</p>

<p>Bailment — Delivery to wrong person.</p> <p>A naked bailee cannot be held answerable for delivering the goods held by him to the wrong person, if the agent of the person properly entitled thereto has given Mm to understand they were for the one to ■whom they were delivered.</p>

<p>Error to Kent. (Montgomery, J.)</p> <p>Assumpsit. Plaintiff brings error.</p>

<p> Mandamus to township treasurer. </p> <p>1. Mandamus to compel a township treasurer to pay a certain sum upon the order of the township board, was withheld where the treasurer set forth in his return to the order to show cause, that the township had by resolution directed him not to pay, and that there were no moneys in his hands with which to pay.</p> <p>2. The return to an order to show cause is taken as true if no issue is made upon it.</p>

<p>Ouardia/n’s accounting — Ward’s board, clothing and services — Interest on ward’s funds— Costs.</p> <p>1. The guardian of an infant ward living in his family can charge her for board and clothing, though she be his niece, and the fact that another member of the family would have boarded her for nothing makes no difference, if the guardian, in the exercise of his best judgment for the ward’s own good, has decided that she had better live in his family.</p> <p>2. A guardian is to be charged legal interest only on funds of his .ward in his keeping, unless there has been an agreement for a higher rate; and the fact that such funds have been lent occasionally at ten per cent, makes no difference where the guardian, though honest, is not accustomed to business and has innocently confused the ward’s funds with his own and kept no accounts.</p> <p>8. An infant ward living in the family of her guardian and cared for as a member of it, is not entitled to pay for household services.</p> <p>4. A guardian must keep an account of receipts and disbursements as such, and if he fails to account for receipts he may properly be charged interest on the funds in his hands. If he is guilty of gross misconduct or fraud in his management interest against him may sometimes be made to run with annual or semi-annual rests. And if he cannot show what amount of interest he has received on the ward’s funds he should be charged with legal interest on them from the time when they ought to have been invested.</p> <p>5. Guardians can reap no personal benefit from the use of the ward’s funds, any more than other trustees.</p> <p>6. The burden of proof that a guardian has received a higher interest than the legal rate, upon his ward’s money, is on those who represent the ward’s interests on an accounting; and they must identify the instances in which such interest has been received.</p> <p>1. Costs of appeals taken by a ward in reference to the guardian’s accounting may be allowed to the guardian from the funds due the ward upon final judgment in favor of the guardian.</p>

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

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

<p>Carriers — Delivery on amlhority of consignee.</p> <p>The consignor of goods by rail cannot sue the carrier for them if the latter delivers them to the wrong person on written authority to do so from the consignee, even though the consignee states that he has no claim on the goods; a fortiori he cannot if he himself has assented to such delivery.</p>

<p>Township drain — Special drain commissioner.</p> <p>A special commissioner to lay out a drain in two counties cannot be appointed ex parte, without notice, and on the same day on which the application for his appointment is filed.</p>

<p>Mortgage on contemplated advances — Strict foreclosure — Costs.</p> <p>1. A mortgage is not fraudulent for including contemplated advances.</p> <p>2. Where the decree on a hill to redeem provided that if redemption were not made within three months, defendant should have strict foreclosure, it was modified on appeal so as to permit defendant to proceed to sale.</p> <p>3. Costs on appeal were withheld where the decree, though affirmed in part, was modified in favor of the appellee.</p>

<p>Replevin — Discontinuance-^Assessment of damages.</p> <p>Where plaintiff in replevin, after appealing from a justice, discontinues on payment of costs (How. Stat. § 7014), defendant can, on proper notice-to plaintiff, waive return and elect to take judgment for value and damages (id. §§ 8346-7), and he may, without any interlocutory judgment, notice the cause in the appellate court for the assessment of damages by a jury (id. § 8348).</p>

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

<p>Juirv — Communication with outsiders — Setting aside verdict — Mandamus for new trial — JEteturn to order.</p> <p>1. Mandamus lies to compel a circuit judge to set aside a verdict and grant a new trial for communicating and drinking with others after being sent out to consider their verdict.</p> <p>2. Ex parte affidavits returned by a circuit judge in response to an order to show cause why he should not grant a motion, will not be received if they were not used on the motion.</p> <p>3. A bill of exceptions in a civil case can include no ruling made after verdict. Taking out a writ of error and filing a stay-bond can not therefore be treated as a voluntary waiver of the right to relief for matters subsequent to the verdict.</p> <p>4. The opinions and discussions of individual jurors cannot be inquired into.</p> <p>5. A trial judge is'incompetent to decide that a verdict was not affected by outside influences to which the jury had been exposed; and if he refuses to set it aside on the ground that it was just, he usurps the functions of the jury. The presumption that the jurors were honest will not save the verdict.</p> <p>6. A verdict is incurably vitiated if evidence of the public sentiment as to the case is allowed to reach the jury.</p> <p>7. An order to show cause does not necessarily imply personal censure of the respondent: the review of judicial action is confined to legal errors, and the action itself is presumably conscientious.</p>

<p>Selling liquor without keeping tax-receipt posted — Pleading.</p> <p>1. Courts take judicial notice of municipalities within their jurisdiction, and the objection that the name of the county has been left out of the venue of a complaint, cannot, if it has any merit at all, be raised for the first time on appeal from a justice, if the complaint states that the offense was committed at a specified place that is in fact within the county.</p> <p>2. A complaint for selling liquor without having the liquor-tax receipt posted in view is sufficiently specific in identifying respondent as a dealer, if it describes him as “ a person then and there engaged in the business of selling and offering and keeping for sale spirituous and intoxicating liquors; ” it need not set forth the specific acts for the purpose of showing him lo be a dealer. But as druggists are not required to keep such receipt posted, it must aver that he is not a druggist selling for chemical, scientific, medicinal or sacramental purposes only; and if it does not so aver it is fatally defective.</p> <p>S. Where a statute creating an office makes an exception to its operation, „ a complaint thereunder must show upon its face that the accused does not fall within the exception.</p>

<p> Enticement for prostitution. </p> <p>The words “concubinage” and “prostitution” have no common-law , meaning, but in their popular sense cover all cases of lewd intercourse. A com plaint therefore under How. Stat. § 9098 for enticing away girls that are not of consenting age for purposes of marriage, concubinage or prostitution will be sustained where lewd intercourse was the object.</p>

<p>Verification of information — Immediate outcry — Charge to jury.</p> <p>1. Where an information was verified before the clerk of the court the objection that in signing the jurat he did not add his official title is waived if not taken before trial and conviction.</p> <p>2. In a prosecution for robbery the testimony of the complaining witness that he told detectives of it immediately after it took place need not be accompanied by the particulars of his statement.</p> <p>3. If it is claimed that a trial judge, in charging the jury, was mistaken in assuming that certain concessions and admissions had been made, his attention should have been called at the time to his misstatement, for where the record does not show error it cannot be presumed.</p>

<p> Sorse-stealing. </p> <p>A man got a horse belonging to another from the latter’s minor son and claimed to have exchanged another horse for it. On demand he refused to give it up and afterwards secreted it. Held, that as it was found his intention in taking it was felonious he was properly convicted of stealing it.</p>

<p> Joint informations. </p> <p>1. A conviction, is not invalidated by the fact that tbe person convicted, while implicated with others, was allowed to be tried on a separate information, unless the offense charged was one which could not be committed by only one person.</p> <p>2. No one can be convicted, even under a joint information, without proof of his individual guilt.</p>

<p>Error to the Superior Court of Grand Rapids. (Parrish, J.)</p> <p>Information for larceny. Respondent brings error.</p>

<p>Jury — Nwmfier of jurors.</p> <p>The constitutional number of jurors in Michigan is twelve except in courts that are not courts of record. In a court of record a conviction by less than twelve jurors where twelve were demanded, must be quashed.</p>

<p>Error to Ingham. (Gridley, J.)</p> <p>Assumpsit. Defendants bring error.</p>

<p>Architects’ “percentages.”</p> <p>Architects’ usage, especially if unknown to customers, will not entitle them to pay for preliminary sketches and estimates on the preposterous basis of a percentage on their own estimates. Such services, unless volunteered, should be paid for, if at all, according to the time spent upon them or according to such understanding as was had or was fairly implied from circumstances.</p>

<p>Infants — Pa/rtition of lands.</p> <p>1. "Where the interests of infants are involved nothing can be established by admissions or stipulations; proof is necessary.</p> <p>3. Where partition of lands in which an infant has an interest is prayed for, the facts must be inquired into as fully when the infant is complainant as when he is defendant.</p> <p>3. An infant’s guardian filed a bill in his behalf for the partition of land in which he had an interest. Stipulated facts indicated that it would not be for his advantage, and on appeal it was held that as it could not be presumed a more favorable showing could be made by proof the decree should be reversed and the bill dismissed.</p>

<p>Builway injury to child on track — Negligence—Fences.</p> <p>1. It is negligence not to slacken the speed of a train so that it can be stopped if necessary, if the engineer has seen an object on the track, a long way off, and cannot tell what it is.</p> <p>2. A child two and a half years old is no such trespasser in going upon a railroad track as to forfeit redress for being run over and seriously injured by the recklessness or negligence of the engineer. Nor can the child be considered negligent. The question of its parents’ negligence in permitting it to go, is for the jury.</p> <p>■ 3. A railroad company’s neglect to fence its track is for the jury to consider as bearing on its liability for injury done to a child which got upon the track in consequence.</p>

<p>Appeal on certiorari — Conclusiveness of return to certiora/ri — Discretion in practice — Vm'ther return.</p> <p>1. A justice trying a case without a jury does not clearly err in striking out evidence as immaterial if he returns the facts truly for review.</p> <p>2. The Supreme Court will not review mere questions of practice below especially if they do not plainly involve an abuse of discretion.</p> <p>3. The refusal of a trial court to order a farther return to a writ of certiorari issued to a justice is not open to review in the Supreme Court.</p> <p>4. The return to a writ of certiorari is conclusive upon the party who sues out the writ, and he cannot dispute it.</p> <p>•6. - Appeal, rather than certiorari should he resorted to for reviewing cases that stand upon facts.</p>

<p>Internal improvements — Appropriation of swamp lands.</p> <p>1. The constitutional provision forbidding the State to engage in works of internal improvement (Mich. Const, art. xiv., § 9) does not invalidate Act 130 of 1883, in so far as it provides that swamp lands belonging to the State be appropriated to a particular county to aid in improving the channel of a designated stream, reclaiming adjacent lands, and improving their sanitary condition.</p> <p>2. Act 130 of 1883, appropriating lands to pay the expense of an internal improvement, authorized the imposition of a tax in addition. Held, that the tax-provision did not invalidate the appropriation so long as it was not the consideration therefor.</p> <p>3. The principles of local self-government are not infringed by leaving it to a State officer to supervise the appropriation of State lands to a local improvement.</p>

<p> Renewal of partnership notes with corporate paper. </p> <p>1. Corporate notes, given to take up the individual obligations of members of the corporation, are presumptively accommodation notes and ultra vires; and no officer can give them without special authority to do so, and this must be expressly and affirmatively shown to entitle one who takes such notes, to the protection of a bona fide holder.</p> <p>2. A firm was re-organized into a corporation, and assets bought by the firm with the proceeds of partnership notes were transferred to the-corporation. Payments were made on the partnership notes with corporation paper, and the corporation took up one of the partnership notes. Held, that these facts had no tendency to show that the corporation ratified the act of one of its officers in .assuming without authority to take up the partnership paper with renewal notes of the corporation. Nor would they show ratification if there were no other stockholders than the original partners.</p> <p>3. A corporation cannot be sued for the debts of a firm out of which it// has been organized, even though there is no difference in membership. //</p> <p>4. A corporation, sued on renewal notes given to take up individual obligations, can show that it formally repudiated the notes when they came to its knowledge.</p>

<p>Malicious prosecution — Stenographer’s minutes on new trial — Damages— Hearsay — Inadvertent error in charge to jury,</p> <p>1. Stenographer’s minutes of testimony given on a former trial may be admitted even though the deposition of the witness himself has since been taken.</p> <p>2. PiaiDtiff in an action for malicious prosecution showed by way of damages that his arrest had prevented his accepting the invitation of his son, who was employed upon a certain railroad, to go to a specified place and take a situation on the road. This invitation was contained in a letter aud it did not appear that the son.had any authority to promise the situation, so that the letter itself did not tend to show that he could get employment. But as he changed his course of action and suffered inconvenience because of the letter, it was not improper to admit the letter as bearing on the circumstances.</p> <p>3. Evidence of what third persons had told the witness plaintiff had said to them about his purposes, is hearsay, and in an action for malicious prosecution, it is inadmissible, on the part of the defense, to excuse the arrest of the plaintiff.</p> <p>4. One who sued for malicious prosecution showed that defendant had called him meddlesome and troublesome. Defendant’s offer to justify the epithets by showing that plaintiff was reputed to be quarrelsome, meddlesome and vindictive was properly overruled, since the epithets were important only as showing his own feelings.</p> <p>5. An evident inadvertence in a judge’s charge is not ground of error if it could not have misled and was not noticed at the time. So held, where he said that probable cause could not be inferred from malice-when he meant to say the want of it could not.</p>

<p>Malicious prosecution— Conspiracy.</p> <p>Advising persons not to become sureties for one who has been arrested, does not tend to show that those who give such advice have conspired with the person who caused the arrest, and are therefore liable with him to an action for malicious prosecution. Nor does their enmity toward the person arrested, nor their wish to drive him out of town.</p>

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

<p>Mandamus to revive commission on claims — Appeal by executors — Final orders.</p> <p>1. Where a creditor against a decedent’s estate has failed to present his claim to the commissioners thereon while in commission, he is entitled at any time before the estate is closed to have it heard by the probate judge or to have the commission revived, the only discretion in the probate court being to determine whether the court or the commission will hear it, and within what time, inside of three months, it must be heard. And mandamus lies to enforce the right to a hearing.</p> <p>2. The executors of an estate are sufficiently aggrieved by the probate court’s refusal to entertain a claim belonging to the estate which they represent, to be entitled to appeal from such a decision.</p> <p>3. The merits of a claim against an estate are not open upon an application to the probate court for the revivor of a commission to hear it; nor are they upon an application for mandamus to compel such revivor.</p> <p>4 A probate order refusing to revive a commission on claims is final and appealable.</p>

<p>Taxes — Wild Lands — Valuation—Personal, inspection — Uniformity—Highway labor.</p> <p>3. Assessing officers must inform themselves, as far as possible, of tho true cash value of each parcel of land assessed, and must not assess non-residents differently from others. But where the extent and inaccessibility of wild land make personal inspection impossible in the time allowed, it will not be assumed that because the lands were to a great extent valued alike they were assessed unfairly.</p> <p>U. The assessment of highway taxes for roads that are in contemplation but are not yet laid out is not necessarily illegal.</p> <p>3. Whether a supervisor can have a fixed salary in lieu of his regular per diem compensation- — Q. But it is not necessarily unlawful for a town board in fixing the annual tax to appropriate enough to cover his possible expenses.</p>

<p>Claim against municipality — Excessive tax.</p> <p>The charter of Lansing provides that no claim can be prosecuted against ■ the city that has not previously been presented to the common council with an affidavit in support of it. Held, that this applies to a claim against the city to have a tax refunded that has been paid under protest.</p>

<p> Tenant holding over without right. </p> <p>1. Proceedings before a circuit court commissioner to recover premises as from a tenant bolding over, will not lie where complainant himself does not show that he is at the time entitled to possession.</p> <p>2. Where a lease does not provide for re-entry or breach of condition and there is no agreement that a failure to perform shall operate as a forfeiture or termination of the lease, the tenant cannot for such cause be said to “hold over ” contrary to the terms of the lease.</p> <p>3. Assent to the continued occupancy of farming lands upon the same terms as before may fairly be presumed if at the beginning of the planting season the owner silently permits the occupant to continue in possession for some weeks longer and does not enforce a contingent arrangement for the surrender of the premises at that time. And in subsequent proceedings to recover possession as from a tenant holding over, he is estopped from showing that any such arrangement existed.</p> <p>4. Where the record shows that the result could not have been different if excluded testimony had been admitted, or vice versa, no new trial will be ordered on such grounds.</p>

<p>Appeal from Wayne. (Chambers, J.)</p> <p>Bill to set aside judgment, etc. Complainants appeal.</p>

<p>Boidence — Attoi'ney’s correspondence — Terms of contract — Offer—Acts a,nd conduct.</p> <p>1. An attorney’s letter in reply to one addressed to Iris client seems to be admissible, if relevant, when it has been shown that he is attorney and has been put in possession of the letter to which his is an answer.</p> <p>2. The real terms of a contract, if disputed, are properly left to a jury.</p> <p>8. It is not an offer of property to say to another that whatever he takes is at his own peril.</p> <p>4. Where the question before a jury is whether a person is a party to a transaction, and it has to be determined by his acts and conduct, such acts should be considered all together and not separately.</p>

<p>Raih'oadingury to brakeman — Construction of ears — Contributory negligence.</p> <p>A brakeman, whose business it also was to couple cars, had his arm crushed in trying to couple to another car a caboose the drawbar of which was some six inches below that of the other car and of cars generally. The caboose had been in that condition for a month, as the brakeman himself knew, and it had been reported for repairs, but the fact that the drawbars were not on the same level must have been apparent to any one attempting to couple the cars, if he used his eyes. Held, that he could not recover against the railway company.</p>

<p>Common carriers — Injury from being carried past station.</p> <p>A declaration as for injury to plaintiff in being wrongfully put off the train at a place remote from the railway station, will not support a recovery where the proof shows that the injuries suffered, which were very great, were mainly due to the passenger’s being carried by, but finally landed near the station so late that the carriage which had called for him had gone again, the driver supposing that he had not come, and when all places of shelter were closed, and all conveyances gone, it being after midnight, so that he was obliged, while suffering from fever, to walk home three-quarters of a mile in a freezing rain.</p>

<p>Accounting— Commissioner’s report — Interest— Costs.</p> <p>1. The commissioner’s report in a case of accounting is not, like a referee’s finding at law, conclusive as to facts if supported by evidence; the judge himself must on exceptions decide upon the facts according to his own view of the evidence.</p> <p>2. A bank-partner who had put into the concern but a small part of what he had agreed to, and had that on a deposit account which he generally kept overdrawn, was charged interest on monthly balances at two per cent, a month, the charges being entered on his pass-book. He protested against this for more than ten years, but practically acquiesced in it, the interest being, in effect, paid when so charged. Held, that while interest at that rate could not be recovered against him, he could pay it if he saw fit, and after such long practical acquiescence he had no claim to relief.</p> <p>8. Costs were withheld on dismissal of a bill for an accounting where nothing in the nature of a partnership settlement had been had for ten years.</p>

<p>Brain proceedings — Application—Proof of service of citation — Bescription of land — Proceedings of special commission.</p> <p>1. An application for a drain is insufficient which, while it describes the line which it must follow between termini and gives the dimensions of the ditch, does not indicate from which side of the line land must be taken for it.</p> <p>2. A probate judge cannot appoint special drain commissioners without-proof by affidavit that his citation to persons concerned in the proposed drain has been duly served on them.</p> <p>3. A probate order for the establishment of a drain must describe the lands to be affected by the proceedings, or must furnish the special commissioners the means of .ascertaining the various parcels belonging to the respective owners concerned.</p> <p>4. Special commissioners for running a drain cannot properly pass upon the necessity of taking land for it unless, while viewing the premises, they have before them the application for the drain, and minutes of the proceedings of the drain commissioners, including a copy of the application to the probate court for special commissioners, the citation annexed and proof of service thereof and the minutes of the survey signed by the supervisor. How. Stat. § 1700.</p>

<p>New trial— Verdict giving costs.</p> <p>1. New trial will not be granted in tlie Supreme Court unless the protection of substantial rights requires it, if the case is such that on new , ■ trial such damages only as are nominal and will not carry costs can be recovered.</p> <p>2. Where a man suffered serious injury as a remote consequence of being carried by his railway station in the night, the only direct injury being that he was obliged to walk an extra hundred rods, he was still allowed a new trial on reversal of a verdict for the remote • injury, as it could not be said that damages for the direct injury would not carry costs.</p>

<p>Mandamus — Collusiveness of return — Medical services — Board of health.</p> <p>1. Where a mandamus proceeding is left to stand upon the answer to the order to show cause, the answer must be taken as true.</p> <p>2. Mandamus to compel a board of supervisors to allow compensalion for the use of relator’s house for a small-pox patient was refused where the house was already infected before the patient was taken there.</p> <p>8. Where the obligation of a board of supervisors to pay for medical services depends upon the ability of the patient to pay for them himself, such pecuniary ability is a question of fact to be passed on by the supervisors.</p> <p>4. Whether a township board of health can employ one of its own members as physician and fix conclusively the salary to be paid him by the county — Q.</p>