Volume 57 — Michigan Reports

Error’to Wayne. (Jennison, J.) Case. Defendant brings error. cited as to the obligation of one who is in charge of dangerous machinery to see that it is properly used, Pa/rsons v. Brown 15 Barb. 590; Andre v. Johnson 6 Blackf. 375; Suggs v. Anderson 12 Ga. 461; Cooley on Torts 167; Abt.v. Burgheim 80 111. 92; Ayres v. Birtoh 35 Mich. 501; Green v. Goddard 2 Salk. 641; McCcurty v. Frem.ont 23 Cal. 196; Woodman v. Howell 45 111. 367; People v. Batehelder 27 Cal. 69; Beeoher v.…

. (Gridley, J.) Case. Plaintiff brings error. If a railroad company that is not required to keep a flagman at a crossing does so, notwithstanding, it is liable for the flagman’s negligence: Price on Railroads, 354; Dolan v. Del. db H. C. Go. 71 N. Y. 285; Gasey v. N. Y. Gent. dio. Go. 78 N. Y. 518; St. Louis v. T. É. R. Go. 78 111. 197; P. db Read. R. Go. v. Fillips 88 Penn.

<p>Homestead — Platted lands.</p> <p>1. Platting agricultural lands for partition only, and not for sale or as village lots, will not bring them witbin the constitutional provision which exempts a lot only, with the house upon it, from sale on execution : the owner remains entitled to the exemption of forty acres.</p> <p>2. Homestead laws are to be construed liberally.</p> <p>8. The homestead exemption of forty acres is not affected by the fact that the parcel claimed as exempt was formerly owned in severalty.</p>

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

(Speed, J.) Assumpsit. Defendant brings error. cited as to forfeiture of insurance for failure to state facts material to the risk, Ins. Co. v. Lawrence 2 Pet. 25; Waller v. Nor. Ass. Co. 10 Fed. Pep. 232; Hohrbo,ch v. Germ. F. Ins. Go. 62 N. Y. 47 ; Agl. Ins. Go. v. Montague 38 Mich. 550; Kibbe v. -Hamilton F. Ins. Go. 11 Gray 163; Glay F. db M. Ins. Go. v. Huron Salt dbc. Go. 31 Micit. 346 ; Lasher v. St. Joseph F. db M. Ins. Go. 86 N. Y. 423; Mers v. Franklin Ins.

(Speed, J.) Proceedings in the nature of a creditor’s bill. Defendants appeal.

<p>Fweclomre — Action on residuary legatee’s bond — Irregularities.</p> <p>1.The rule that proceedings at law to enforce payment of a deficiency on foreclosure cannot be taken without leave of the court in which foreclosure was had, does not apply to an action begun by leave of the probate court upon the bond of the mortgager’s residuary legatee; and the omission to obtain leave also from the court in chancery is a mere irregularity that can be waived by defendants.</p> <p>2.Stay of proceedings will not be compelled by mandamus for a mere irregularity in procedure.</p> <p>3.It seems that' where proceedings by foreclosure and for a deficiency thereon are ineffective, an action at law can be instituted for the debt without leave from the court in chancery.</p>

<p>Expenses of justice — Board of jurors — Supervisors’ powers.</p> <p>1. The expenses of administering justice are for the benefit of the State and are charged to the county only by way of properly distributing the burden. Claims for their payment are not under the exclusive control of the supervisors, which extends only to county charges.</p> <p>2. The expense of boarding and lodging jurors in a criminal case must be audited by the county supervisors and paid by the county if the trial judge has exercised his discretion to seclude the jurors during trial and direct that they be lodged and boarded at a particular place.</p> <p>3. A jury, when sworn, is part of the court and cannot be put beyond its supervision.</p>

<p>Partition proceedings — Testimony as to value — Award.</p> <p>1. Commissioners in partition proceedings must apply to the court for any instructions they may need; and if interested parties take part in their deliberations or in the preparation of their report, the report will he set aside.</p> <p>2. Parties interested in partition proceedings may properly he heard by the commissioners, on notice to all concerned, to appear before them at a specified time and place to prove, if they wish, the value of the lands.</p>

(Judkins, J.) Replevin. Defendant brings error. An adjournment by a justice of the peace without authority of the statute acts as a discontinuance of the suit and ousts the jurisdiction of the justice: Grace v. Mitchell 31 Wis. 535; Stadler v. Moors 9 Mich. 269; Brady v. Taber 29 Mich. 199.

<p>Replevin and trover for properly taken on execution — Exemptions—Damages —Assignment of claim to attorney — Judgment in bar.</p> <p>1. The assignment to one’s attorney of his claim for a conversion o£ his property does not bar his right of action thereon.</p> <p>3. In trover against a sheriff for tools of one’s trade seized upon execution, damages are not recoverable for the breaking up of plaintiff’s business -where that results from the award of the property to defendant in an action of replevin therefor.</p> <p>S. Failure to give bond in replevin is no ground for dismissing the suit, which can still be tried on the merits.</p> <p>4. The measure of damages in trover for mortgaged property seized upon execution cannot exceed what the property was worth after deduct, ing the amount of the mortgage at the time of the levy, and allowing interest, where replevin had failed, from the date of the return to defendant.</p> <p>5. A judgment for defendant, in replevin for exempt property taken by him on execution, bars trover against him for its conversion unless after the return of the property and before its sale the claim of exemption is plainly made.</p> <p>6. A sheriff who has had judgment in replevin for goods seized by him under an execution, is not liable for not thereafter setting it aside as exempt, unless requested.</p>

<p>Condemnation of land, for railway mes — Jurisdictional defects — Description of land to be taken — Compensation.</p> <p>1. The statutes of eminent domain must be followed strictly; and in proceedings under them it must appear affirmatively that the course they prescribe has been substantially adhered to.</p> <p>2. An appeal from an order confirming the award of damages in condemnation proceedings brings up the case as it stood before such confirmation, and jurisdictional defects will defeat the proceedings at any stage, whether relied on or not.</p> <p>3. A petition for the condemnation of land for railway purposes is jurisdietionally defective if it only describes the land as a strip 100 feet wide, commencing on the east line of the W. i of the S. W. J of sec. 32, running N. 59° 10' W. across certain designated governmental subdivisions, and lying 50 feet on each side of the centre line of a specified railroad as located by a certain survey and indicated by stakes. And a report by the jury, which describes the land in this way and gives no map and does not name, as far as possible, the owners of land to be condemned, will not sustain an award.</p> <p>4 An award of damages in condemnation proceedings is invalid if, without the consent of the parties, it gives compensation on any but a money basis.</p>

<p>Mandamus — Custody of school funds — Evidence aliunde.</p> <p>1. Mandamus does not He to enforce a contract; as where the relator is a bank seeking to compel the respondent, an officer of a public board, to deposit with it, as required by law, funds to the custody of which it is entitled under a bid made therefor to the board.</p> <p>2. A board of education is entitled to mandamus to compel its treasurer to pay its funds to the proper depositary under the law.</p> <p>3. School moneys are distinguishable on the tax-rolls, and when received by the treasurer of a municipal board of education are at once payable to tbe proper depositary without waiting for the comptroller to formally apportion and separate the various taxes paid by the collector to the treasurer.</p> <p>4 The treasurer of a municipal board of education cannot go back of board records which on their face show valid action, for the purpose of avoiding the performance of his duty to deposit the funds paid to him with the custodian who appears by the records to be entitled to them.</p>

<p> Ttfjectment for lands "bought under an execution. </p> <p>1. A deed in anticipation of insolvency is not void but only voidable; and a judgment creditor wbo seeks, under How. Stat. § 6108, to levy on land which has been so conveyed by the debtor, must strictly comply with that statute; and if before his levy he does not take the steps prescribed therein for ascertaining what interest the debtor . retains in the land, he cannot as a purchaser on execution, maintain ejectment therefor after one year from the execution sale.</p> <p>2. In ejectment by an execution purchaser for land conveyed by the judgment debtor in anticipation of insolvency, the grantee’s wife is not to be impleaded as defendant.</p>

Certiorari. An infant cannot be a bailiff (Oro. Eliz. 637), nor an attorney (Co. Litt. 128 a), nor administrator (Lovelace 161; Godolphin 103), nor judge or juror (Co. Litt. 36), nor burgess or alderman (Rex v. Garter Cowp. 220), nor hold any office of responsibility or trust (Guokson v. Winter 2 Man. & Ry. 313), nor be clerk of a court (Glaridge v. Evelyn 5 B. & Aid. 81), nor serve writs: Tyler v. Tyler 2 Root 519; Harvey v. Hall 22 Yt. 211, and see Edgerton v. Barrett 21…

(Chambers, J.) Bill to compel discharge of mortgage. Defendant appeals. The terms of a mortgage cannot be varied by any verbal understanding between the parties before or at the time of its execution: 1 Jones on Mort. §96; Adair v. Adair 5 'Mich. 209; Sutherland v. Grane Walk.

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

(Chipman, J.) Assumpsit. Plaintiff brings error. When an assignment for the benefit of creditors is legal in the state where it is made, it cannot be impeached elsewhere for non-conformity to law : Bentley v.Whitiemore 19 N. J. Eq. 462 ; Moore v. Bonnell 2 Yroom. 90 ; Burlock v. Taylor 16 Pick. 335 ; Sanderson v. Bradford, 10 N. H. 265 ; Daniels v. Willard 16 Pick. 36 ; Chaffee v. Fourth National Bank 71 Me. 523 ; Ock.erm.an v. Cross 54 N. Y. 29; Bholen v. Cleveland 5 Mason…

Exceptions from Hillsdale. (Howell, J.) Information for forgery. Respondent was convicted below. A valid count will sustain a verdict: People v. McKinney 10 Mich. 54; Shannon v. People 5 Mich. 71 ; and the information will not be quashed though other counts are bad: Com. v. Hawkins 3 Gray 464; it is discretionary to require an election among counts : 1 Archb. Or. Pr.

(Williams, J.) Trespass. Defendant brings error. In trespass the unlawful invasion is the injury and cause of action ; its consequences are merely elements of damage : Bainbridge on Mines (1st Am. ed.) §§ 574, 475; Yedder v. Yedder 1 Den. 257; 3 Suth. Dam. 403; Thompson v. Ellsworth 39 Mich. 724; Derry v. Flitner 118 Mass. 133 ; Welch v. Ware 32 Mich. 80 ; Allison v. Chandler 11 Mich. 542; Dickinson v. Boyle 17 Pick. 78; Cumberland dbc.

<p>Error to Houghton. (Williams, J.)</p> <p>'Garnishment proceeding. Plaintiff brings error.</p>

<p>'Guardianship — Want’s rights — Special questions — Charge to the jury.</p> <p>1. A natural guardian has no power to admit away the rights or the ward whose person is in his custody. So, a mother cannot release her child’s right of action for an injury, by the admission that it had been warned to avoid the danger.</p> <p>3. A right of action is property as much as if it were a corporeal possession; and when it belongs to a minor is protected by law in the same way and with the same securities.</p> <p>A A natural guardian has the custody of the ward’s person only, and cannot be given control of its estate except by judicial proceedings, and after giving security for responsible care.</p> <p>4. One is not entitled as of right to have special questions put if the answers would not be conclusive.</p> <p>6. Refusal of requests for instructions is not error if the charge' covers all that the party requesting them was entitled to ask.</p> <p>•6. In charging a jury it is not error to read to them the language used by the Supreme Court in disposing of the same case on a former trial, if the language read merely lays down a rule of law as applicable to the one case as to the other.</p> <p>7. Damages for a personal injury resulting in the mutilation of a limb may properly take account of the consequent limitations upon the victim’s choice of an occupation, and on his ability to work, and also of the permanent'annoyance likely to be caused by the deformity.</p>

(Grant, J.) Garnishment. The garnishee brings error. A declaration in garnishment must be predicated on the disclosure : Mayna/rds v. Cornwell 3 Mich. 313; and on appeal a disclosure before a justice is evidence against the garnishee(.Newell v. Blavr 7 Mich. 103), whose oral answers are competent evidence against him : Allen v. Hazen 26 Mich. 142;.. a collateral attack upon a judgment for want of authority in the attorney is confined to a case where such want is…

<p>Certiorari.</p> <p>Proceedings to lay out township drain. Respondent brings certiorari.</p>

(Russell, J.) Debt. Plaintiff brings error. Special bail are discharged by anything that affects in any manner the nature and extent of their contract in such manner as might by any reasonable probability increase their risk or liability: Campan v. Seeley 30 Mich. 57; Fish v. BaFbonr 43 Mich. 19; Bosman v. Akeley 39 Mich. 710; Bathbone v. Warren 10 Johns. 587.

<p>Error to Shiawassee. (Newton, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>Additional insurance avoids a policy at once, unless consented to: Allemania Ins'urcmce Co. v. Hurd 37 Mich. 13; Western dec. Insurance Co. v. Rilter 10 Mich. 279 ; Security Insv/ra/nce Co. v.Fay 22 Mich. 469 ; New York Central Insurance Co. v. Watson 23 Mich. 487; if void it could only be revived with the consent of the insurer: Sun Insurance Co. v. Ewrle 29’ Mich. 412.</p> <p>An insurance company which has acted with full notice of the facts and received a party’s money under circumstances leading him to suppose he was receiving in consideration thereof a valid contract of indemnity is estopped from repudiating the contract afterwards : Peoria Ins. Co. v. Hall 12 Mich. 213 ; YEtna Ins. Co. v. Olmstead 21 Mich. 253; N. Am. F. Ins. Co. v. Throop 22 Mich. 159; Mich,. St. Ins. Co. v. Lewis 30 Mich. 41; Secu/rity Ins. Co. v. Fay 22 Mich. 467; if the agent knows,, when he issues a policy containing a clause rendering it void in case of other insurance without written consent indorsed thereon, that there is other insurance on the same-property, the policy so issued will not be void, although such' agent makes no indorsement of consent thereon: Sherman v: Madison Mut. Ins. Co. 39 Wis. 104; Roberts v. Contimental Ins. Co. 41 id. 321; N. E. F. ds M. Ins. Co. v: Schettler 38-111. 166; Lycoming Ins. Co. v. Ba/rrimger 73 id. 230; 111. Mut. F. Ins. Go. v. Malloy 50 id. 419; Pitney v. Glens Falls Ins. Co. 65 N. T. 6; Carroll v. Charter Oak Ins. Co. 40 Barb. 292; when the agent fills up the application, knowing or having been properly informed by the applicant of the facts demanded by the questions therein- touching the title, incumbrances, value, etc., mistakes in the application as to such facts are the mistakes of the company,, and do not avoid the policy: Mechler v. Phoenix Ins.. Co. 38 Wis. 665; so is an omission to state a material-fact in the application, of which fact the agent had full knowledge, if such omission was not fraudulent or intentional: Wright v. Hartford F. Ins. Co. 36 Wis. 522;.. a warranty against overvaluation was held to be broken only in case of an intentional overvaluation, in Helbimg v. Svea. Ins. Co. 54 Cal. 156 : 35 Am. Hep. 72; no misrepresentation can be predicated of a fact of which the insurers were fully cognizant: Mukoille v. Adams 19 Fed. Bep. 891;. where one party has by his representations or his conduct, induced the other party to a transaction to give him an. advantage which it would be against equity for him to assert, he would not in a court of justice be permitted to avail himself of that advantage: Plumb v. Cattaraugus Ins. Co. 18 N. Y. 392; Rowley v. Empire Ins. Co. 36 N. Y. 550; Wood-bury 8m. Bk. v. Charter Oak Ins. Go. 31 Conn. 526 ; Combs 'v. Hannibal Ins. Go. 43 Mo. 148; powers of the agent are prima facie, co-extensive with the business intrusted to his care, and will not be narrowed by limitations not communicated to the person with whom he deals : Bebee v. Ins. Co. 25 Conn. 51; Lycoming Ins. Co. v. Schollenberger 44 Penn. St. 259; Bealv. Ins. Co. 16 Wis. 241; Davenport v. Ins. Co. 17" la. 276; an insurance company establishing a local agency, must be held responsible to the parties with whom they transact business, for the acts and declarations of the agent within the scope of his employment, as if they proceeded from the principal: 8av. Bk. dec. Assn v. Charter Oak Ins. Co. 31 Conn. 517; Horwitz v. Ins. Co. 40 Mo. 557; Ayres v. Ins. Co. 17 la. 176 ; Howard Ins. Co. v. Bruner 23 Penn. St. 50.</p>

Case made after judgment from Kent. (Montgomery, J.) Assumpsit. Plaintiff had judgment.

(Howell, J.) Ejectment. Plaintiff brings error. cited as to the admissibility of declarations made by the holder of title: Ohadwick v. Former 69 N. Y. 404; Pitts v. Wilder 1 N. Y. 525 ; Abbott’s Trial Ev. 711 ; Fellows v. Fellows 37 N. H. 75, 84; Adams v. French 2 N. H. 389 ; and as to declarations in explanation of the character of one’s possession: 1 Greenl.

(Stickney, J.) Assumpsit. Defendant brings error. The finding “unknown to the jury” is not a special finding: Cole v. Boyd 47 Mich. 98; Crane v. Reeder 25 Mich. 313 ; Harbaugh v. Cicott 33 Mich. 242; Foster v. Gaffield 34 Mich. 356 ; and justifies a new trial: Darling v. West 51 la. 259.

(Chipman, J.) Case. Defendant brings error. As to municipal liability for injuries caused, by accumulation of snow and ice in the streets : Hubbard v. Concord 35. N. H. 52; Stone v. Hubbardston 100 Mass. 50; Stanton v. Springfield 12 Allen 566; Hall v. Lowell 10 Cush. 260; Hutchins v. Boston 12 Allen 571; Johnson v. Lowell id. 572; Gilbert v. Box-bury 100 Mass. 185, and see Battersby v. New York 7 Daly 16; Stewart v. Woodstock & Huron B. Co. 15 Q. B. (U. C.) 427.

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

Case made after judgment from Oakland. (Stiekney, J.) Replevin. Defendant had. judgment. A stipulation that a purchaser may return merchandise within a certain time amounts to a mere contract for re-purchase: Marsh v. Widcham 14 Johns. 167; and its breach results in no forfeiture of rights: Giddy v. Altman 27 Mich. 210 ; Holmes v. Hall 7 Mich. 66.

(Fuller, J.) Trespass. Defendant brings error. When the purpose for which an easement is granted no longer exists, the easement ■ends: Washb. Easements (2 ed.) 623, §3; verbal permission to lay track on one’s land, is a mere license, revocable at any time : Druse r. Wheeler 22 Mich. 439; Miller r. The Aub. ■<fc Syrao. T. It. 6 Hill 61; Tuggles r. Lesure 24 Pick. 187, and is revpked by conveying the land : Eggleston v. N. M. ■<& Har.

<p>Accidental injury — Negligence—Question of law.</p> <p>A fairly intelligent youth of sixteen had his hand mutilated by the jointer in a planing mill where for two weeks he had been at work. He had had no previous experience with such machinery, but the dangerous nature of the jointer was manifest to anyone who looked at it, and he would not have been hurt if he had not laid his hand, without looking, upon the table in which the jointer operated. Held, that the injury was accidental, and he could not recover for it.</p> <p>2. The question whether there is evidence tending to show negligence is one of law, to be determined from the testimony only. Where the court is in doubt, the case should go to the jury.</p>

<p>Error to Branch. (Pealer, J.)</p> <p>Tboyer. Plaintiff brings error.</p> <p>cited as similar Bcmiels v. Johnson 24 Mich. 430.</p>

<p>Dictated testimony — Corporate obligations — Individual liability.</p> <p>1. The Supreme Court severely censures the practice of putting the statements of counsel into the mouths of witnesses.</p> <p>'2. Where railway directors have collected subscriptions and taken aid notes to be used in building the road and in discharging existing obligations, an individual director cannot apply such funds, collected by himself, to the payment of his own personal share of any obligation made jointly with the rest.</p> <p>'3. A corporate obligation will not sustain an action against an individual.</p> <p>•4. New trial on reversal is ordered pro forma, though the declaration be fatally defective, if error is not assigned on the defect.</p>

(Hart, J.) Foreclosure bill. Complainant appeals. One who owes a mortgage to an estate is not released by payment to one who has purchased the mortgage if he knows that the transfer is invalid : Cullen v. O'Hara 1 Mich. 132 ; Morton v. Preston 18 Mich. 60; Cilleey v. Hamilton 22 Mich. 283; Howard v. Patrióle 38 Mich. 801; also see Cla/rle v. Davis 32 Mich. 151; Barry v. Davis 33 Mich. 515 ; any equities that may exist against an heir cannot prejudice the suit of the…

<p>Foreclosure sale — Claim for surplus.</p> <p>How. Stat. | 8510 provides that on foreclosure sale any claimant to the surplus may file his claim with the officer making sale, and that a reference to a. commissioner to take proofs may be ordered by' the court. Held, that — apart from any question as to the validity of this statute — a petition for such reference is fatally defective if it does ■not establish a prima facie right to a part of the surplus; and it does not do this if it does not show how the parties cited are related to the mortgaged lands. And in the proceedings before the commissioner all parties interested in the equity of redemption must have notice, so that they may produce any defense that they have.</p>

(Gridley, J.) Debt. Defendants bring error. Whether a fiscal officer cannot transfer funds to his successor by certificates of deposit (Eyles v. Ellis 4 Bing. 112; 2 Pars. Cont. 625) which have the same effect, though expressly payable in current funds, as though not made so, if there is no evidence that any medium of payment is meant that is not as good as gold: Phcenix Ins.

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

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

<p> Assumpsit on covenant of seizin. </p> <p>1. A declaration on the covenants of a deed, and averring that plaintiff was evicted by the owners of a paramount title, is not supported by proof that the covenant was one of warranty against all persons claiming under the grantor.</p> <p>35. The right of action on a covenant of seizin begins to run as soon as it is broken, and it is broken when made if the grantor has no title-And if the action is assumpsit it is barred in six years from the time the right of action accrued.</p> <p>8., It is presumed in support of a ruling directing a verdict or the rejection of evidence, that the party who had offered the evidence did not suggest on its rejection, that he had any farther proof.</p>

(Steere, J.) Foreclosure bill. Defendants appeal. In execution sales and statutory foreclosures land is sold in parcels, not so much because it thereby brings the highest price, as because each parcel should be redeemable by whoever may become the ■owner within the year allowed for redemption: Ola/rk v. ■Stilson 36 Mich. 485; of the right of the court to direct a sale in either of the two ways there can hardly be much ■question: Penn v. Graig 1 Green Ch. 497; Merwin v. Smith…

<p>Bflectmentfor lands in trustee’s possession — Guardianship.</p> <p>1. Land devised to an infant was left in the possession of a trustee who was. not to surrender it to the devisee until the latter should become of age, and show sufficient capacity to be entrusted with it. How'. Stat. § 5573. The trustee was entitled to possession. Id. § 5565. Held, that the devisee, on reaching majority, could not bring ejectment against a third person until the trustee had either surrendered the possession or transferred the right thereto by an instrument- in writing; the trustee’s acquiescence in the suit is not enough.</p> <p>2. Guardianship of a minor’s person does not carry with it the control or possession of the ward’s real estate.</p>

<p>Amendment of till of particulars — Cross-examination of impeaching witness —Judicial discretion — Comments on excluded testimony.</p> <p>1. A doctor, suing for professional services, filed a bill of particulars including a credit which, if true, made the account an open one and barred the statute of limitations. On a second trial he obtained leave to amend his bill by adding another credit of later date than the last debit item. Held, that leave should not have been granted, and that it was proper to exclude proof of the credit, which could not have had any effect on the statute of limitations.</p> <p>2. Where the defense to a suit on a doctor’s bill is that he was to have no pay if he made no cure, the nature of the disease is an immaterial fact. And the records of defendant’s divorce proceedings are irrelevant to the case and incompetent to prove his moral turpitude.</p> <p><S. Cross-examination of an impeaching witness to show that he is himself disreputable may be restricted in the discretion of the trial judge, and was held to be properly excluded where the otter was to show that he was a procurer and blackmailer.</p> <p>4. Witnesses to character, testifying in rebuttal of impeachment, may properly be limited to the number of impeaching witnesses.</p> <p>5. A trial judge must restrain counsel from commenting on testimony that has been excluded, if objection is made to such comments.</p>

(Parrish, J.) Case. Defendant brings error. One who is about to cross a railroad track must stop and see whether a train is so near as to make the transit dangerous: ■Schaefert v. O. M. da St. P. R. Go. 62 la. 624; Grippan v. JP. x. G. R. Go. 40 N. T. 45; Slcelton v. Railway Company L. R. 2 C. P. 631; Pence v. G. R. I. & P. R. Co. 63 la. 746.

(Joslyn, J.) Ejectment. Plaintiff brings error. Contracts by married women for the purchase of property on credit have been upheld : Tíllmcm v. Shackelton 15 Mich. 447 ; husband and wife may make conveyances of lands directly to each other: Burdeno v. Amperse 14 Mich. 91; a married woman may mortgage her lands for the debt of her husband : Watson v. Thurber 11 Mich. 457 ; or may deed them : Farr v. Sherman 11 Mich. 33; a conveyance by mortgage comes clearly within the power…

<p>Appeal from Genesee. (Newton, J.)</p> <p>Case. Defendant brings error.</p>

(Chambers, J.) Garnishment process. An intervening claimant brings «error.

<p>Appeal from Wayne. (Speed, J.)</p> <p>Divorce bill. Defendant appeals.</p>

<p>Negligence — Spa/rks from steam-thresher.</p> <p>1. Sparks from a steam-tkreslier set fire to some hay stored on the premises. Thé owner of the hay was plowing in the same field, but had made no protest against the use of the thresher. In an action by him for the negligent destruction of the hay, it was held that in the absence of proof that he had any special knowledge of the risk of using such machinery, or of the skill and competency of those who had charge of it, he was entitled to an instruction that if he did not consent to, or participate in what was done, he was not guilty of contributive negligence. '</p> <p>2. In an action for negligent injury to property rightfully stored on another’s premises, it is unimportant that a third person was joint owner of it with the plaintiff, or that defendant was not awax-e of plaintiff’s interest: plaintiff was not bound to give notice of his interest.</p>

<p>Appeal from St. Joseph. (Pealer, J.)</p> <p>Petition for appropriation of income from trust fund. Respondent appeals.</p>

(Mills, J.) Foreclosure bill. Defendant appeals. The presumption from lapse of time that a mortgage has been paid is not conclusive, but may be rebutted by facts, circumstances and admissions: 2 Jones on Mortgages, §§ 1196-7, 1157,1163,1167,1171; Angelí on Limitations, 457-8; Abbott ■ Laches of twenty years in foreclosing must be excused by the bill: McLea/n v. Bcurton Har. Oh. 279; Gampau v. Ohene 1 Mich. 400; Reynolds v. Green 10 Mich. 355.

(Emerick, J.) Assumpsit. Defendant brings error. The rule that a written instrument must be proved by the subscribing witnesses, does not apply where the subscribing witness is beyond seas or out of the jurisdiction. 1 Greenl. Ev. § 572.

<p>Exceptions not relied on — Burden of proof.</p> <p>1. Exceptions appearing in the printed record but found to be stricken out of the bill of exceptions as returned, are presumed not to have been taken, unless it is shown that the return has been tampered with.</p> <p>2. The burden of proving that a timber scale is correct is on the party who furnishes the scaler, if it appears that the latter was without experience; and this is so even though the contract required the' other party to have the scaling done.</p>

(Green, J.) Case. Defendant brings error. It is the .rule of law in this State that as between upper and lower proprietors on streams, each has the right to a fair participation and the reasonable use of the water, and an injury to one which is incident to the reasonable enjoyment of this common right by another is not subject to action; in such case the only foundation for an action is the damage caused by such use of said waters as would be beyond the reasonable use of the…

(Wixson, J.) Bill to clear title. Defendant appeals. Possession should be protected against all who have no better title: Covert v. Morrison 49 Mich. 133; this is so where the title of an adverse claimant is a mere pretense: Hanold v. Bacon 33 Mich. 1; Richardson v. Tolman 44 Mich. 379 ; Austin v. Bean 40 Mich. 386; a patent relates back to the date of entry and perfects the title of the person then entitled: Fisher v. Ilallock 50 Mich. 463 ; Johnson v. Ballou 28 Mich. 379 ;…

(Smith, J.) Assumpsit. Plaintiff brings error. Lands obtained by the foreclosure of mortgages in the hands of an administrator are considered personal assets: How. Stat. §§ 5880-3; Al-bright v. Gobb 30 Mich. 360; Little v. Lesia 5 Mich. 119 JZ/wnzie v. Wixom 39 Mich. 386; and the administrator is liable for claims against the estate: How. Stat. § 5929 ; Palms' Appeal 44 Mich. 637; Winegar v. Newland id. 370 ; Hoffman v. Beard 32 Mich. 222; Basom v. Ta/ulor 39 Mich. 687.

<p>Lumber contract — Multiplicity of suits.</p> <p>Í. Where several liens are asserted, and each rests on its own facts and none are c'omplicated with the rights of third persons, and the only-question in common is the validity of the law under which they ai-e made, they cannot properly be disposed of in one litigation upon a bill in equity that is not a bill of peace or a bill'to prevent multiplicity of actions.</p> <p>2. A. lumberman obtained* the right to cut a lot of timber and run it to mill, and at the same time he contracted to deliver it to a certain lumber company. The owner of the timber, however, was to retain his title until it was paid for. The lumberman afterward surrendered his interest in his contract to the owner. The lumber company had overpaid the former, and on its refusing to advance" the necessary sum to finish the job, the latter abandoned it and sold the logs to a third person. The river-drivers also claimed liens on the logs for their labor, and several attachments were levied. The lumber company then filed a bill to enjoin any interference with their possession. Held that the case did not fall within the jurisdiction of equity. The questions raised by the conflicting claims of title were purely legal, and so with the labor liens, which did not depend upon the rights of the original owner nor on any equities that might exist between him and the company. Meld also that the owner of the logs was entitled to have his claim for stumpage paid by the company, and if the company had overpaid the original contractor, its loss cannot be charged to the owner, whose conduct in ordering payments by the company to be made to the lumberman did not make him a‘ principal in the latter’s contract.</p> <p>3. A defense to a- bill in equity need not be noticed on appeal if the particular defendant who made it did not appeal.</p>

'Error to Genesee. (Newton, J.) Case. Defendant' brings error. It- is a. well settled 'principle in pleadings that defects in substance are fatal, and •cannot be cured by pleading over; the material facts must •be alleged : 1 Chit.

(Speed, J.) Proceedings to recover possession. Defendant brings error.. If there is any doubt as to-the intent of the parties, or as to the construction of the lease, the tenant is entitled to the benefit of every doubt, and the construction of every doubtful clause must be in his favor:: 4 Kent’s Com. 132; much more will this doctrine hold true, where the penalty for unlawful holding over is highly penal Hlinglev.

(Cage, J.) Dbbt. Defendants bring error. An affidavit to hold to bail is sufficient if it clearly discloses a case of assault and battery and alleges damages : Wilcox v. Ismon 34 Mich. 268 ; proceeding in the original suit is equivalent to an entry of default on a bail bond ; Huguet v. Ballet 1 Cai. 55 ; Prior m. Bod/rie 49 Mich. 200; Beecker v. Simmons Y Johns. 119.

(Chipman, J.) Assumpsit. Plaintiff brings error. When a party signs articles of association, as the holder of a certain number of shares, representing a certain figure, a liability is thereby created on his part to take and pay them for the amount called for by such articles : Thompson’s Liability of Stockholders §§ 105, 125; Boone’s Law of Corporations § 119 ; Angel & Ames on Corporations § 519 and notes ; Morowitz’ Private Corporations § 271; Dexter & Mason, Pile Pd Go. v.…

, (Wixson, J.) Trover. Defendant brings error. Where there is no wrongful purpose or wrongful negligence in the defendant compensation for the real injury done is the purpose of all remedies, and a plaintiff, by choice of actions, ought not to be enabled to increase his recovery beyond just compensation : Forsyth v. Wells 41 Penn. St. 291; Single v. Schneider 30 Wis. 570 ; Hungerfordv.

Clair. (Stevens,'J.) Trespass qu. cl. Defendant brings error. The usual order in marshaling boundaries is (1) natural boundaries ; (2) artificial marks; (3) adjacent boundaries; (4) course and distance ; but when it is plain that there is a mistake, or uncertainty, an inferior rule of location may control a higher: Fulwood v. Graham 1 Rich.

(Fuller, J.) Bill for partnership accounting. Complainant appeals.

(Wixson, J.) Injunction bill. .Complainant appeals. Equity will relieve one wbo bas made a contract under a material mistake of fact: 1 Story’s Eq. §§ 140, 141; Kerr on Mistake 405-6; even if caused by another’s misleading statements: Converse v. Blumrich 14 Mich. 110; it is said that a bare mistake of law furnishes no ground for relief : 1 Story’s Eq. §§ 137-8; Jacobs v. Morange 47 N. Y. 57; but this is disputed : see Stone v. Godfrey 5 DeG.

(Russell, J.) Replevin. Defendant brings error. How. Stat. § 6203 avoids every conveyance made to defraud creditors: this statute is general and. applies to not only present but future creditors as well, and it does not in any sense limit the application of the fraudulent intent to any particular creditor: Herschfeldt v. George 6 Mich. 456; Baggv.

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

(Chambers, J.) Appeal from disallowance of claim against estate. Claimant’s executor brings error.

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

(Judkins, J.) Injunction bill. Complainant appeals. Conditions against the sale of liquor will be enforced in equity : Plumb v. Tubbs 41 N. Y. 442. Courts will not enforce any agreement of which the object is to create a monopoly in any business : Mitehel v. Reynolds 1 P. A¥ms. 190; Wright v. Ryder 36 Cal. 342 ; Oregon Steam Wav. Go. v. Hale 1 Wash. 283 ; St. Josef h db Denver City R. Go. v. Ryan 11 Kan. 602: 15 Am. Rep. 357; Williamson v. G. R. 1.

(Stiekney, J.) Bill to correct deed, etc. Defendant Isaac appeals. Estates tail are abolished in Michigan, by 1. Held: that if consistent with the general scope of the will, the word “heirs” must be construed as a word of limitation, enlarging the life estate to a defeasible estate in fee simple: Carter v. Reddish 32 Ohio St. 1; see also Wilson v. Wilson 32 Barb. 328 ; Sherma/n v. Sherma/n 3 Barb. 385 ; Barnes v. Hathaway 66 Barb. 453 ; Brant v.…

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

Case made from Wexford. (Fallass, J.) Debt. Plaintiff brings error. cited Wilkinson v. Nichols 43 Mich. 354.

Mandamus. Debts due a firm continue subject to garnishment «ven though in the principal action a verdict is taken against only part of the firm: Ga/y v. Johnson 32 N. H. 167 ; see Whittemore v. Elliott 7 Hun 518; Inbusch v. FarwellA Black 566. •claimed the garnishees should be discharged: Markham v. Gehan 42 Mich. 74; Ford v. Dry Dock Go. 50' Mich. 358 ; in a garnishee case the affidavit becomes the, declaration, and is in trover for the conversion óf property and in…

<p> Taxation of logs in camp. </p> <p>Logs in camp are taxable wbere the camp is, if there is an office there and buildings for transacting the local business, receiving funds and . making returns to headquarters. .lHow. Stat., p. 1367, § H, subd. 1.</p>

(Fallass, J.) Bill to set aside levies. Defendants appeal. By the execution and delivery of an assignment, the relation of trustee and cestui que trust, is constituted at once without any express assent of the creditors, and cannot afterward be revoked, except upon the dissent of creditors: Suydam v. Degui/ndre Har.

(Speed, J.) Trespass. Defendant brings error. If the plaintiff recovers judgment upon verdict when the question of title to lands and tenements has been put in issue by the pleadings, or shall have comé in question on the trial of the cause, he shall recover his costs: How. Stat. § 8964 subd. 2; Druse v. Wheeler 22 Mich. 444; Cunning v. Prang 24 Mich. 514.

(Arnold, J.) Assumpsit. Defendant brings error. Recovery may be had on the common counts alone where the declaration counts on an express contract that has been fully performed : MoGraw v. Sturgeon 29 Mich. 426 ; Fuller v. Bice 52 Mich. 436; the common counts are independent of the special coun,t, and evidence of the value of services was admissible under the common counts and the bill of particulars : Hall v. .Woodin 35 Mich. 68; Hart v. Summers 38 Mich. 399; see as to the…

Exceptions before judgment from St. Clair. (Stevens, J.) Criminal information for aiding an escape. Respondent was convicted. Offenses against city ordinances are not criminal: Mixer v. Supervisors 26 Mich. 422; an ordinance without an enacting clause is ineffective: Stevenson v. Bay City 26 Mich. 44.

<p> Change of plea on appeal in criminal cases. </p> <p>1. Plea of guilty may be withdrawn on appeal in Michigan, and the case will be re-tried on its merits.</p> <p>2. Where a criminal proceeding is appealed from justice’s court, the requirement in the appeal-bond that the accused shall prosecute his appeal to effect, contemplates a prosecution in the usual way of trial and verdict.</p> <p>3. How. Stat. § 9558 requiring it to he ascertained whether a plea of guilty is voluntary or not, applies to appealed cases begun on a warrant, as well as to cases on information or indictment.</p>

(Hooker, J.) Larceny. Respondents bring error. Where one parts with his property voluntarily consenting thereto, it cannot be larceny, however fraudulent the means by which it was obtained: Ross v. People 5 Hill 294; 2 East P. C. 668; 1 Whart. Or. L. § 888; 2 Arch. Or.

<p>Error to St Clair. (Stevens, J.)</p> <p>Complaint for keeping house of ill-fame. Respondent brings error.</p>

<p>Preferred Creditors — Burden of proof— Garnishees disclosure.</p> <p>1. Debtors may lawfully prefer any honest creditor by mortgage, or may sell out to him an entire stock of goods to pay the debt.</p> <p>2. Every plaintiff must make put his case by affirmative proof or by legal presumption; and where the jury think the facts shown are as consistent with defendant’s honesty as with his dishonesty, the presumption of honesty is not overcome, and his dishonesty cannot be established.</p> <p>3. A garnishee is plaintiff’s witness so far as his answers are responsive, and though they are not conclusive if met by adequate testimony, they constitute part of the evidence in the case.</p>

(Speed, J.) Bill to set aside attachments. Defendant appeals. JBoese v. King 78 N..

<p>Mandamus — Town order.</p> <p>Mandamus to pay a township order based upon a settlement which, the answer claimed to be wrong, was limited to the amount conceded by the answer to be due, no issue of fact being made; but the allowance of the writ was without prejudice to any action by either party for the correction of the error.</p>

Mandamus. Relator seeks in this proceeding to set aside the action of respondent in vacating, upon motion, a chancery decree entered by him sixteen months before. In answer to the order to show cause, respondent states that he signed the decree, as he supposed, without reading it, and under an impression that it was satisfactory to counsel for all parties.

(Newton, J.) Assumpsit. Defendants bring error. One who takes upon himself the defense of a suit, hires the counsel and has charge of it, is bound by the result' as to such questions as are litigated: JDe Witt v. Prescott 51 Mich. 298 ; but interested persons who are called merely as witnesses are not bound; to have been parties and bound, they must not only have been interested in the matter, and notified of the action, but have had an opportunity to control the defense,…

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

<p>Corporation — Power to confess judgment.</p> <p>The treasurer of a corporation has no power as such to confess judgment for it.</p>

<p>Waiver — Mstoppel by acquiescence.</p> <p>1. The appointment of an administrator upon a woman’s estate is held to-have been acquiesced in by her husband if in a litigation with the administrator he raises no objection to the latter’s authority, when the disposition of such an objection would dispose of the case. And no objection so waived can be afterward raised upon a new trial.</p> <p>3. Dilatory pleas rest on the idea that questions to which they apply should be disposed of early in order to save the expense and delay of a needless trial on the general merits.</p>

<p>Construction of contract — Rights of non-appellants — Interest—Application of payments — Notice. '</p> <p>1. The purposes of the parties to an undertaking in making or changing it, may properly be considered upon its interpretation in equity.</p> <p>2. On appeal in chancery the rights of such defendants as have allowed the bill to be taken as confessed, cannot be considered, except so far as necessary to determine the rights of those who appeared and defended.</p> <p>S'. An interest clause in a bond, provided that “ in case any sum of principal or interest shall not be paid when due, [the obligors shall] pay interest thereon, at the rate of ten per cent, per annum, during all the time the same may remain overdue and unpaid.” Held that this did not authorize the compounding of interest; unpaid principal or interest would draw interest until paid, but without rests.</p> <p>4. The application of payments upon a mortgage will be as justice and equity require, where no agreement controls, or where an agreement is unlaw ful. Scattering payments permitted by the mortgagee should, if not otherwise agreed, be applied (1) to the extinguishment of interest due, (2) to the payment of principal.</p> <p>5. Third persons are not bound to take notice of arrangements to extend times for payment or to exchange securities, and cannot be presumed to have knowledge thereof.</p> <p>6. A person whose agents and representatives are competent, and well informed as to all matters affecting their principal’s interests, cannot plead want of notice of anything which they know.</p>

<p>Motion to dismiss appeal.</p> <p>Appeal from Yan Burén. (Mills, ¿T.)</p> <p>Injunction bill. Defendants appeal.</p> <p>For definition of good will, see Morga/n v. Schuyler 79 N. Y. 490; Crutwell v. Lye 17 Yes. 335; Boon v. Moss 70 N. Y. 473; Sander v. Iloffman 64 N. Y. 248 ; Glen & Hall Mfg Co. v. Hall 61 N. Y. 226: it follows the ownership of the business: Pars. Part. 262; and see 3 Kent’s Com. 64; Hammond v. Douglas 5 Yes. 539; Crawshay v. Collins 15 Yes. 224; Featherstonhaugh v. Fenwick 17 Yes. 312; Lewis v. Langdon 7 Sim. 421; Staats v. Howlett 4 Den. 559 ; 2 Lindl. Part. 855; Kellogg v. Totten 16 Abb. Pr. 35 ; Mitchell v. Bead 19 Hun 418 ; Cassidy v. Metcalf 1 Mo. App. 593 ; Davies v. Hadgsan 25 Beav. 177; Chittenden v. Wiibeck 50 Mich. 401; a partner cannot, on retiring from a firm which he went into for a limited time, claim an interest on the good will of the business: Van Dyke v. Jackson 1 E. D. Sm. 419; Austin v. Bays, cited in Lindl. Part. § 864; Dimon v. Hazard 32 N. Y. 65 ; Ilowe v. Laurence :9 Cush. 556; Bullitt v. Chartered Fund 26 Penn. St. 108; Quimlivan v. English 42 Mo. 362; the full abandonment of a trade-mark requires the intent to abandon it: Lemoine v. •Canton 2 E. D. Sm. 343: American Trade-mark Cases 142, Sold v. Ceisendorf Cox’s Manual &c. 367; an acquiescence by the owner of the trade-mark in its use by another, is in the-nature of a revocable license, and confers no rights after the license is withdrawn: Amoskeag Manf. (Jo. v. Spear 2 Sand. 599; an acquiescence in the use of a trade-mark for twenty years by others does not preclude the owner from enforcing1 his sole right: Gillott v. Esterbrook 47 Barb. 455 : 48 N. Y-374; see also, Ta/ylor v. Carpenter, cited in American TradeMark Cas. 32; Filley v. Fassett 44 Mo. 173; Comstock v. White Am. Trade-Mark Cas. 232; Kidd v. Mills Cox’s Manual 437; Austen v. Boys 24 Beav. 503, 2 Lindl. Part. 863; if a name indicating the nature of a machine also defines ownership or possession it may be registered as a trademark and cannot thereafter be used by any other person to> describe articles of the same kind: Messerole v. Tynberg, Am. Trade-Mark Cas. 479; Burnett v. Phalón id. 376;. Newman v. Alvord id. 404: 51 N. Y. 189; McLean v. Fleming Cox’s Manual 326: 96 IT. S. 245; Caswell v. Ba/ois Am. Trade-Mark Cas. 429 ; see also Wolfe v. Goulard id. 226; Merch. Banking Co. v. Merch. Joint Stock Go. 26 Eng. 346; Hirst v. Denham 3 Eng. 833; Witherspoon v. Cwrrie id. 29 ; the following cases, among many others, fully sustain complainant in the use of his trade-mark: Godillot v. Harris 81 N. Y. 263; Coats v. Holbrook Am. TradeMark Cas. 20 ; Barrows v. Knight id. 238; Binninger v. Wattles id. 318; Dixon v. Guggenheim id. 559 ; Morrison v. Salmon id. 643; Halloway v. Halloway id. 662; Davis v. Kendall id. 112; Knott v. Morgan id. 637; Perry v. Truefitt id. 644; Hier v. Abrahams 82 N. Y. 520; Congress Spring Co. v. High Rock Spring Go. 45 N. Y. 291; Colman v. Crump 70 N. Y. 573 ; Holmes v. Holmes 37 Conn. 278 ; Croft v. Day 7 Beav. 84: Am. Trade-Mark Cas. 649 ; Sykes v. Sykes 3 B. & C. 541; Burgess v. Burgess 17 E. L. & Eq. 257 : Am. Trade-Mark Cas. 664; Clark v. Clark 25 Barb. 76 ; Bradley v. Norton 33 Conn. 157 ; Gillott v. Kettle 3 Duer 626; Walton v. Crowley 3 Blatch. 440; Selchow v. Baker 93 N. Y. 60: Carnal Co. v. Clark 13 Wal. 311; Mfg. Co. v. Trainer 101IJ. S. 51; no one can sell his goods as those of another aside from any rights under a trade-mark: Bloss v. Bloomer Am. Trade-Mark Cas. 200 ; Partridge v. Menck id. 72; Williams v. Johnson id. 214; Rodgers v. Nowill id. 660 ; Lee v. Haley Cox’s Manual, 184; Williams v. Johnson id. 85; Shrimpton v. Laight id. 69; Taylor v. Taylor id. 70 ; Knatt v. Morgan id. 26; Glenny v. Smith id. 140; Coffeen v. Burton id. 52; Singer Mfg. Go. v. Beiil id. 409 ; Morgan Saw Co. v. Troxell id. 144; Thorlefs Cattle F'ood Co. v. Morram id. 395; Cooley on Torts 361.</p> <p>A bill of complaint suppressing the real relations between the complainant and defendant should be dismissed : Story’s Eq. PI. §§ 241, 242, 249, 251; Leather Cloth Co. v. Am. Leather Cloth Co. 11 H. L. Cas. 523 ; Booth v. Thompson 49 Mich. 13; Elliott v. Amazon Ins. Co. 49 Mich. 519; Lawton, Mich, being a post town cannot be appropriated as ■a trade-mark: Canal Co. v. Clark 13 Wal. 311; Candee v. Deere 54 111. 439 ; Glendon Iron Co. v. Uhler 15 Penn. St. 461; Weatherspoon v. Currie 3 Moak (Eng.) 29; “ Grain Grader and Seed Separator ” being words descriptive of the ■quality of the machine cannot be appropriated as a trademark : Caswell v. Davis 58 N. Y. 223 ; Taylor v. Gillies -59 N. Y. 333 ; Boget b. Eindleter 1 Eng. 653 ; Cooley on Torts 361; Charvim v. Walker 22 Eng. 524: 5 Ch. Div. 850 ; Mfg. Co. v. Trai/ner 101 II. S. 51,54; Boyal Baki/ng Pow■der Co. v. Sherrell 93 N. Y. Pep. 334; Enoch Morgan Sons c& Co. v. Troxell 89 N. Y. 298; Cape v. Evans 9 Eng. 681; Chronvnslay v. Cohn 39 Cal. 501: Am. Pep. 416; Yarn, Beil v. Prescott 82 N. Y. 630 ; words have their •ordinary meaning: Leoni v. Ta/ylor 20 Mich. 154 \ L. S. <& M. S. B. Go. v. People 46 Mich. 211: 1 Bl. Com. 59; dissolution of a partnership does not deprive a partner of his interest in the good-will of the business or in a trade-mark: Uuwer v. Dannenhoffer 82 N. Y. 501; Hazard v. Cas■well 93 N. Y. 263; Hall v. Burrows 4 De G. J. & S. 150; Bury v. Bedford id. 352 ; Wile oxen v. McCrary 38 N. II. Eq. 461; competition is favored by the courts: Snowden v. Eoah Hopk. Ch. 341; Candee v. Deere 54 111. 439 ; Tab■ouchere v. Dawson 1 Moak 111; partner ssucceed to partnership rights; Hazard v. Caswell 93 N. Y. 262.</p>

(Pealer, J.) Case. Plaintiff brings error. One who sues for negligent injury must state in his declaration the material facts relied on as a cause of action : Batterson v. G. dé G. T. By. Go. 49 Mieh. 184; Addison v. I. 8. dé M. 8. By. Go. 4S Mich. 155; M. II. dé O. B. B. Go. v. Mareott 41 Mich. 435; F. dé P. M. By.

<p> Sale. </p> <p>A lumberman turned over a quantity of logs to a banker, who took them for a firm, giving tbe firm’s paper to the lumberman in payment, but himself keeping tbe title to tbe logs until tbe notes should be met, tbe lumberman having tbe right to deposit tbe notes with the banker, and draw against them. Held, that tbe transaction would warrant a finding that it was a sale from tbe lumberman to tbe banker.</p>

<p>Appeal from Alpena. (Emerick, J.)</p> <p>Bill to compel officials to surrender notes. Complainant appeals.</p>

Exceptions before judgment, from Berrien. (A. J. Smith, J.) Information for murder. Respondent was convicted.

(Emeriek, J.) Assumpsit. Plaintiff brings error. Held: Bresler v. Pendell 12 Mich. 224; Gibbs v. Blanch-a/rd 15 Mich. 297; Corl&ins v. Collins 16 Mich. 480 ; Welch v. Marvin 36 Mich. 60; Baker v. Ingersoll 39 Mich. 158 i 41 Mich. 48; Waldo v. Simonson 18 Mich. 349 ; Gower v. Stuart 40 Mich. 747; Sinclair v. Richardson 12 Yt. 33.

(Jennison, J.) Case. Defendant brings error. Testimony that witness ■did not see or hear cannot balance that of another witness that he did: Seibert v. Erie B. Co. 49 Barb. 583; OuThane v. JV. Y. Cent. & H. B. Co. 67 Barb. 562 ; Henze v. St. Louis dc. R. Oo. 71 Mo. 636; the speed of a train is not necessarily an element of negligence: Pierce on. Railroads 354 n. 5 ; Grows v. Maine Gent.

(Speed, J.) Assumpsit. Defendant brings error.. cited as to the obligation upon the assignee of a debt to appear on notice if the debtor is garnished, and be bound by the judgment against the garnishee : Born v. Staaden 24 Ill. 320; Stevens v. Dillman 86 Ill. 233; notice by a surety to his co-surety, of the pendency of suit, estops the latter in a suit for contribution, from claiming that he is not bound by the judgment: Love v. Gibson 2 Fla. 598; Bigelow on Estoppel, 66,…

<p>Condemnation proceedings — Evidence of title — Jwry.</p> <p>1. Where the title to land is involved, a deed that has been executed to a party after he has closed his case is inadmissible to remedy a defect therein.</p> <p>2. In condemnation proceedings for a single purpose all persons who must at any time.be made respondents, should be brought in so as to be heard before the same jury ; the proceeding is indivisible.</p> <p>3. The jury in condemnation proceedings brought by a municipality should be chosen from the body of the county and not iperely from the township or village interested in the condemnation.</p> <p>4. Proceedings by a village to condemn land outside of its jurisdiction are unlawful unless the village charter expressly gives the power to do so: the General Act (124 of 1883) does not permit it.</p>

(Grant, J.) Case. Defendant brings error. Statutes requiring railway tracks to be fenced do not apply to the station grounds : Indiana dee. R. Go. v. Leah 89 Ind. 596; Jeffersonville dee. R. Go. v. Lyon 72 Ind. 107.

<p>Appeal from Marquette. (Grant, J.)</p> <p>Bill to compel conveyance. Complainant appeals.</p>

<p>Appeal from Eaton. (Hooker, J.)</p> <p>Bill to clear title. Complainant appeals.</p>

(Hooker, J.) Case. Defendant brings error. Where an injury to a highway is produced by some sudden and unexpected cause, the corporation is not liable for resulting accidents unless it has reasonable opportunity to repair: Ihibbard v. Concord 35 N. H. 52; Johnson v. Haverhill 35 N. II. 74; Remiav. Rochester 45 N. Y. 135 ; Hume v. New TTork City 47 N. Y. 639 ; Dewey v. Detroit 15 Mich. 307.

<p>Deeds — Priority of record, — Bona fide purchasers.</p> <p>How. Stat. § 5683 makes an unrecorded deed void as against a subse- ■ quent deed taken in good faith and recorded. Whether it would be so where the subsequent deed was a mere quitclaim of such interest as remained in the grantor, and followed sundry mesne conveyances to persons who were affected by notice of the first grantee’s equities —Q. A judgment in ejectment to the contrary was left undisturbed by a divided Court.</p>

(Montgomery, J.) Case. Defendant brings error. Driving .a horse so near a locomotive that the latter can blow steam on one is per se negligence: Jeffersonville R. Co. v. Cold-smith 47 Ind. 43; Louisville ds Washville R. Co. v. Schmidt 81 Ind. 264; S Am. & Eng. R. Gas. 248; for cases of injury to teams at railway crossings where tlie drivers were bound to know the place was dangerous, see III. Cent.

(Joslyn, J.) INJUNCTION bill. Defendant appeals. Corporations and companies organized under the laws of Michigan could be legally taxed as to their business, •and any discrimination in favor of a foreign company, which would give it immunity, would be contrary to public policy : Talcott & Go. v. McCormick 51 Mich. 7 ; Diamond Match Co. v. Powers 51 Mich. 148; Ducat v. Chicago 10 Wall. 410;.

<p>Deed — Delivery to husband of deed to wife.</p> <p>A man deeded to Ms brother under an arrangement that was afterward abandoned, but the grantor obtained a conveyance back to his wife, which was not delivered to her, but to Mm. Held, that her heirs could not claim under such a deed without some evidence that she was a party to the'delivery.</p>

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

(Fuller J.) Assumpsit. Defendant brings error. Liability as a partner arises (1) from being a partner ; (2) from holding one’s self out as a partner or allowing one’s self to be, in such manner as to be estopped from denying it: 1 Colly. Part. 75; Pars.

(Montgomery, J.) Assumpsit. Defendant brings error. If a declaration contains two or more counts, and one of them is bad (out of the case), so that it would not sustain a verdict upon it, and a general verdict is rendered ■on the whole declaration, the verdict is bad, and the defendant may take advantage of it, either by a motion in arrest of judgment or on error: Hopkins v. Beedle 1 Cai. 349; Oheetham v. Tillotson 5 Johns. 430; Backus v. Richardson ■5 Johns. 475 ; Richmond…

<p>Jkplevin by mortgagee for chattels under attachment — Omission to set off exemptions.</p> <p>1. A mortgagee of chattels, like an attaching creditor, has only a lien thereon until sale, but under How. Stat, § 7682 a creditor can levy an attachment on mortgaged property at any time before foreclosure, but only to get control of'the equity of redemption which pertains to the whole and is not apportionable. The levying officer may hold possession long enough to perfect his levy, and in case of'an execution can detain it for the time prescribed for bringing it to sale.</p> <p>2. A mortgagee’s interest in chattels cannot be disturbed by an execution creditor unless the latter pays the mortgagee or tenders payment, which he 'can do at any time before sale.</p> <p>3. The statutory provisions governing a chattel mortgage constitute a part of the mortgage and bind the parties.</p> <p>4. A chattel mortgagee whose claim has not yet fallen due is not entitled to possession of the chattels as against an officer who has levied execution thereon, until the time has passed for making execution sale ; and this is so though the levy and the debt on which it is based be subsequent to the mortgage debt. But the sheriff may, in his discretion, turn the property over to the mortgagee’s custody if the latter demands it for the purpose of making foreclosure sale.</p> <p>5. In replevin by a mortgagee for chattels held under attachment and execution levies, the fact that plaintiff after getting possession, sold the chattels on foreclosure and bid them in himself, is admissible to show that this was his purpose in demanding them.</p> <p>6. A mortgagee of chattels upon which a subsequent execution has been levied is not affected by the levying officer’s oihission to appraise the property and set off to the debtor the amount of his exemption.</p> <p>7. A judgment debtor can waive his exemption, which is a personal privilege.</p>