Volume 58 — Michigan Reports

) Bill to cancel deed. Complainant appeals. As to the conclusiveness of a notary’s certificate upon the fact of signing: Ilouriienne v. Schnoor 33 Mich. 274; Johnson v. Van Velsor 43 Mich. 219; see also Cameron v. Gul-Jdns 44 Mich. 533 ; Camp v. Carpenter 52 Mich. 375 ; Matter of Wool 3G Mich. 299 ; Blair v. Compton 33 Mich. 453 ; for cases in which deeds have been set aside for fraud on the grantor and other reasons see Case v. Case 26 Mich. 492 ; Warteniberg v. Spiegel 3…

(Chambers, J.) Garnishment proceeding. An intervening claimant brings error. Amendments should not be permitted when they would destroy or impair the rights which third persons have acquired without notice: Herm. Executions 56; Davidson v. Gowan 1 Dev. 304; Bank v. Williamson 2 Ired. 147; Williams v. Sharpe 70 N. C. 582; Foster v. Woodjrn 65 N. O. 29; Ohio L. da T. Go. v. Urbana Ins.

(Ohipman, J.) Assumpsit. Plaintiff brings error. Where purchase is of a defined and well known article, the vendor performs his part of the contract by sending that article; and it is the vendee’s concern whether it answers the purpose for which he wanted to use it or not: Ollivant v. Bayley 5 Q. J3. 28S ; Chanter v. Hopkins 4 M. & W. 399, 406 ; Wright v. Hart IS Wend. 449; and where the vendor is only a dealer, and not a manufacturer, he could not be held liable if the…

(Jennison, J.) Assumpsit. Defendants oring error. Assumpsit will not lie unless there is some contract relation express or implied : Woods v. Ayres 39 Mich. 345 ; nor unless there is a request to pay: Child v. Morley 8 Term 610; Stolees v. Lewis 1 Term 20; Raish v. Tatloeh 2 H. Bl. 319 ; Rayes v. Warren 2 Str. 933; Richardson v. Rail 1 Bro. & B. 50; Durnforcl v. Messiter 5 M. & S. 446 ; if one has become a surety of another, and is compelled to pay as such surety, the law…

(Parrish, J.) Case. Plaintiff brings error. In case of a statutory liability for injury, if the negligence of defendant to observe the statute is the prime cause of the accident, the right to recover is not affected by' the contributory negligence of the plaintiff: Flint c& Pere Marquette Ry. Go. v. Lull 28 Mich. 510; Gra/nd Rapids c& Indiana R. R. v. Cameron 45 M. 451; Grand Rapids v. Wyman 46 Mich. 516; Burnham v. Byron Township 46 Mich. 555; Dotton v. Albion 50 Mich. 130.

(Chambers, J.) Ejectment. Plaintiff brings error. State and county tax rolls are invalid if the signatures or copies of them are lacking: Sibley v. Smith 2 Mich. 501; Glark v. Graeie 5 Mich. 151; Golby v. Russell 3 Me. 227; especially as the certificates need not be copied: Txoeed v. Metcalf b Mich. 596.

<p>Appeal from Shiawassee. (Newton, J.)</p> <p>Bill for reconveyance. Complainant appeals. •</p>

<p>Error to Wayne. (Chambers, J.)</p> <p>Appeal from disallowance of will. Contestant brings error.</p>

<p>Tax-sales— Conflicting statutes.</p> <p>1. A sale under section 70 of the General Tax Law (1 How. Stat., p. 1285) for taxes which accrued before the passage of such law, is invalid, because (1) the title of the Act — “ to provide for the assessment of property and levy and collection of taxes thereon” — relates to future proceedings only; and (2) the subsequent Act (No. 11 of 1882) which repeals former laws relating to taxation, leaves them in force for the sale of lands foi taxes already levied.</p> <p>2. A statute cannot bo modified or superseded by one of earlier date, or perhaps by one of the same date which precedes it in the authorized publication of the laws.</p> <p>3. The constitutional provision that the provisions of an act must be covered by its title was mainly to protect the Legislature from passing laws not fully understood.</p>

(Jennison, J.) Assumpsit. Defendants bring error. In issuing successive writs — capias, alias, pluries and testatum capias,— they must correspond with each other in the names of the parties and the cause of action, or they may be set aside as irregular ; the plaintiff indeed may issue one capias after another, without any alias, pluries or testatum clause; but where the regular succession is observed, each subsequent writ should bear teste on the return day of the preceding…

(Arnold, J.) Assumpsit. Defendants bring error. A partner who has gone out of the firm and sold his interest to the new firm, must turn over the entire assets, including all money which he has previously chequed out in the firm name to pay personal debts : Trump v. Baltzell 3 Md. 295; Chandler v. Dorsett Finch 431; Spittal v. Smith Taml. 45 ; there is no occasion for an accounting in equity : Wheeler cited upon the settlement of a partner’s accounts witli the firm, Oven v.…

(Stevens, J.) Scire facias. Defendants bring error. An order pro confesso operates as an admission that complainant may take decree : Griswold, v. Fuller 33 Mich. 271; Hunt v. Wallis 6 Paige 377 ; Stockton v. Williams Har. Oh. 241; Jennison’s Oh. Pr. 277; Chancery Buie 11; Hart v. Lindsay Walk.

(Ramsdell, J.) Trespass. Defendants bring error. Every man is held to intend the natural and necessary consequences of his acts, and in cases of frand this presumption has always been held conclusive: Wait on Fraud, Conv. §§ 7-10, and Kirby v. Ingersoll 1 Doug. (Mich.), 478, 493.

(Montgomery, J.) Appeal from probate. Contestant brings error. cited Bachelder v. Brown 47 Mich. 366; Hatch v. Peugnet 64 Barb. 190 ; where a person makes a will in favor of his priest or religious adviser to the exclusion of the natural objects of his bounty the law presumes undue influence, and to sustain-the will there should be some proof beside the making of it Marx v. MoGlynn 88 N. T. 357; courts sit to enforce what has not inaptly been called a tecbnical morality.

(Fuller, J.) Replevin. Defendant Gunnison brings error. While parol evidence is admissible to show that a particular article is included within the general words of a description (Oomins v. Newton 10 Allen 518; Harding v. Coburn 12 Met. 333; Willey v. Snyder 34 Mich. 60) a mortgage, to be effectual, must point out the subject matter so that a third person by its aid, with such inquiries as the instrument itself suggests, may identify the property covered; and property not…

<p>Appeal from Macomb. (Stevens, J.)</p> <p>Bill to quiet title. Complainant-appeals.</p>

<p>Appeal from Wayne. (Jennison, J.)</p> <p>Proceedings on petition of tlie Receiver of defendant corporation to compel payment of moneys by Charles Bewick, general manager of said corporation. Bewick appeals.</p>

(Chambers, J.) Assumpsit. Plaintiff brings error. A sole owner of a steamer, to whom a policy of insurance thereon is made payable exclusively, is a proper party to sue on the policy in his own name: Wood on Ins. 319 ; 2 Pars. Mar. Ins. 448 ; Motley v. Ins. Co. 29 Me. 337; May on Ins. § 446 ; Barber on Ins. 31; Hopkins v. Ins. Co. 48 Mich. 148 ; Anson v. Ins. Co. 23 Iowa 84; Winchester Ins.

(Hooker, J.) Bill to vacate discharge of mortgage and for foreclosure. Defendant Abiram Holmes appeals. Compounding of interest is illegal: Van Hus am v. Eanouse 13 Mich. 303; Havens v. Jones Jo Mich. 253 ; Hoyle v. Page J1 Mich. 533; equity may give relief where a mortgage has by accident been discharged : Story’s Eq.

<p>Log-driving — Hearsay—Bef asalto fulfill — Depositions—Striking out name oj party — Loss from failure to perform.</p> <p>1. In an action on an assigned claim for log-driving, plaintiff sought to show by defendant’s agent that while the drive was in progress the driver had tried to take in the rear; but it appeared that all the witness knew about it was what one of the driver’s workmen had told him. Plaintiff moved to strike out the testimony as hearsay. Held, that it was objectionable in the light of an instruction that the driver should have had a chance to go back and take in the rear after the logs were taken out.</p> <p>2. When one party to a contract has refused to take farther steps in its execution the other need not wait for him to do so, especially if the subject-matter of it is spoiling in consequence of the delay.</p> <p>3. Depositions lawfully taken and filed in an original suit may be used on appeal. How. Stat. § 7472.</p> <p>4. Striking out the name of a co-plaintiff is within the Statute of Amendments (How. Stat. § 7636), if it appears to be improperly in the declaration.</p> <p>5. In an action for services in driving logs the question whether such logs were to be driven as could only be supported by floats is for the ‘ jury in view of the circumstances under which the contract was made. It is also for the jury to say whether they could have been run with extra exertion, or run the next year, and when the defendant should have exerted himself to prevent as much damage as possible. And a charge assuming that defendant was entitled to no allowances for losses in these particulars is misleading.</p> <p>'6. Defendant in an action on a contract is entitled to be allowed all the expense he has incurred and loss he has suffered from plaintiff’s violation of his contract, so far as he can prove them.</p>

(Newton, J.) Appeal from probate. Claimant appeals. The law presumes that when a will is made all prior advancements are considered merged, and the testator nrust be deemed to have graduated the amount of his legacy with reference to prior advances: In re Peacock's Estate L. R. 14 Eq. 236 ; Taylor v. Cartwright 41 L. J. Ch. 529 ; L. R. 14 Eq. 167; Jones v. Richardson 5 Met. 250; Langdon v. Astors 16 N. Y. 9 ; Van PLouten v. Post 33 N. J. Eq. 346; an advancement depends on…

<p>Townships — Injury from defective bridge — Statements as res gestee — Responsiveness.</p> <p>1. IIow. Stat. §§ 8313-14 giving a right of action for a fatal; injury, though in derogation of the common law is a remedial statute and establishes a general rule which applies as well to townships as to other defendants, even though at the time of its adoption townships were not liable for such injuries but became so afterwards</p> <p>3. An injured parson's statement to his physician as to the causo and circumstances of his injury is not admissible as ros gestto if not made until time enough has passed for him to be removed aud to get the doctor. So held in an action against a township for fatal injury caused by a defective bridge.</p> <p>3. The objection that an answer is not responsive is for the party who asks the question to make; he can accept it if he chooses.</p> <p>4. In an action against a township for an injury caused by a warped plank in a bridge a witness who testified that he had crossed the bridge a month before the accident was asked, “Did you notice the planking?” and answered, “When I went across it was all light.” Held, that the answer was not fairly open to the objection that it was irresponsive, or an expression of opinion.</p> <p>5. An answer is not necessarily to be stricken out for uncertainty or ambiguity, but its meaning should be reached by further inquiry.</p> <p>O. In an action-for injury to a person crossing a defective bridge with a team it was error to charge that the fright of the team was no defense unless the jury found it was caused by something else than the defect, for that places the burden upon the defense of proving that it was something else; while in fact it was the plaintiff’s duty to establish his own case and show the affirmative fact, if it existed, that the defect caused the fright.</p>

<p>Error to Saginaw. (Gage, J.)</p> <p>Case. Plaintiffs bring error.</p>

<p>Mortgage — Personal liability of third persons.</p> <p>1. One who takes a deed of mortgaged land will be personally liable on the foreclosure of the mortgage if his deed expressly binds him to pay it; but a covenant to do so cannot be implied by either deed, or mortgage.</p> <p>2. The statutory jurisdiction to enforce the collateral obligations of third persons upon a mortgage foreclosure is permissive and not obligatory and will not be exercised to their prejudice unless they have made it necessary by their own agreements.</p> <p>3. Whether, on mortgage foreclosure, a personal liability can be enforced against one who is not a party to the mortgage but has bought the land subject thereto and without making anything more than a parol agreement with the grantor to pay it — Q.</p>

(Gridley, J.) Assumpsit. Defendant brings error. Authority to collect a debt does not imply authority to release any part of it without payment: Story on Agency §99; Herring v. lloitendorf 74 N. O. 588 ; Melvin v. Lamar Ins. Co. 80 111. 446; Reynolds v. Continental Ins. Co. 36 Mich. 131; or to compromise a mortgage claim: Atlas Min.

<p>Error to Saginaw. (Gage, J.)</p> <p>Case. Plaintiff brings error.</p> <p>cited as to liability, Smith v. Lond. & St. Hath. Hoeh Co. L. R. 3 C. B. 326.</p>

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

<p>Error to Branch. (Pealer, J.)</p> <p>Case. Defendant brings error.</p> <p>As to proximate cause in cases of negligent injury, see M. do St. P. Py. v. Kellogg 94 IT. S. 475 ; Lewis v. F. dé P. M. Py. 54 Mich. 55; Pittsburg dee. Py. Go. v. Stacey 47 Am. Rep. 385; Fowler v. G. do N. W. Py. 17 Am. & Eng. Ry. Cas. 537; L. do Ff. P. P. Go. v. Guthrie 11 id. 478 ; Jackson v. Nash. Ghat, do St. L. Py. 13 Lea 491; Tisdale v. Norton 8 Met. 388; Henry v. St. L. K. C. do N. Py. 76 Mo. 288: 43 Am. Rep. 762.</p>

<p>Error to Branch. (Pealei, J.)</p> <p>Case. Defendant brings error.</p>

(Montgomery, J.) Bill to compel set-off. Defendants appeal. Where one of the parties to counter-claims or judgments is insolvent, and the circumstances are such that a set-off could not be had at law, equity will compel a set-off of one claim against another, or one judgment against another : Simson v. Hart 14 Johns. 62, 74; Blake v. Langdon 19 Yt. 485 ; Lindsay v. Jackson 2 Paige Ch. 581; Pond v. Smith 4 Conn. 297; Storey’s Eq.

<p>Justice's courts — Attachment—Substituted service — Trover for goods taken under void judgment — Partnership liability, in tort.</p> <p>1. Where the circuit judge who signs a bill of exceptions certifies that it contains the substance of all the evidence, the verdict will be presumed to bo warranted by the evidence if it stated that any was introduced tending to prove the material issues.</p> <p>2. Substituted service of a writ of attachment by leaving a copy with defendant’s wife at his last place of residence will not give a justice jurisdiction over his person; and a personal judgment on such service is void.</p> <p>3. Trover will lie for property taken under a void judgment, not only against the constable who seized it, but against the judgment creditors if they took part in the proceedings after judgment. So held, where the creditors were the members of a firm, and one of them received the property, and refused to give it up while the other declined to do anything about it, but referred the owner to his partner.</p> <p>4. Whatever one partner does in the collection of a firm debt is presumptively done with the other’s consent.</p>

<p>Constitutional law — Perpetuity of institutions — Elective franchise — Tests foi' holding office — Delegation of powers.</p> <p>1. The fundamental and necessary characteristics of the various classes of municipal bodies which, administer local government in. Michigan, cannot be changed by legislation from what they were as fixed by usage and recognition when the Constitution was adopted.</p> <p>2. The elective franchise is substantially the -same in all parts of the State and cannot be essentially changed in any locality by legislation to regulate the mode of exercising it.</p> <p>3. Matters of individual conscience, including .opinions on political subjects, cannot affect a citizen in any of liis legal and political rights.</p> <p>4. The ballot is a constitutional method of voting and cannot be changed; and its perpetuation is meant to secure the right to vote without having the voter’s opinion of men or measures inquired into.</p> <p>5. Act 320 of 1885 in providing for the appointment of election inspectors in Detroit by a board appointed by the mayor and council, and consisting of two persons from each of the two leading political parties, is unconstitutional: (1) as making particular political opinions a condition to holding office; (3) for sub-delegating the popular power of choosing officers; (3) for interfering with the municipal right to local self-government.</p> <p>O. The phrase “office or public trust’’ in the constitutional prohibition against tests includes every Important function of government, and covers boards of reglstration.commissioners. And the term “test” does not apply to those special qualifications that are required for particular offices. “</p> <p>7. All officers and functionaries exercising powers .of government and control over political action must derive their powers and office either from the people directly or from the agents or representatives of the people.</p>

<p>Gontraci — Mvira Services.</p> <p>Assumpsit lies for extra services in running a drive of logs where tlie original contract only bound the plaintiff to run them within a reasonable time and with reference to existing conditions, and the extra services wore such as became necessary and were agreed upon in consequence of the failure of the stream in which they were run.</p>

<p>Street railways — Gleaning snmo from track.</p> <p>1. Where in an action for negligent injury both sides have without objection introduced such testimony as fully explains all facts bearing on the manner and cause of the injury, an- amendment of the declaration should be allowed as a matter of course, if objected to for variance, so long as it is plain that no one could have been surprised by the testimony.</p> <p>3. A declaration in an action against a street railway company for an injury resulting from its neglect to properly clean the snow from its tracks, in consequence of which a horse harnessed to a double, bobsled was thrown down, described the ridges of snow as “along and very near to said street railway track, and between the double tracks thereof,” and stated that as the sleigh struck the ridge between the tracks the horse stepped on the steep and slippery bank piled “along and near said ” track. Held, that this distinguished between the two places; and as a like distinction was kept up in farther recitals, there was no variance arising out of the question whether it was one ridge or the other that caused the injury.</p> <p>3. Any disposition of the snow cleared from a street railway track must be made with due regard to the rights of travel on the highway; and it cannot be charged as matter of law that -the fact that the general level of the road was left above the level of the railway track would not make the disposition of the snow unlawful.</p>

(Chipman J.) Trover. Defendant brings error. In trover, plaintiff cannot recover without proving that the property belonged to him : Cooley on Torts, 442, 446; 2 Greenl. Ev. § 552; nibble v. Lawrenoe 51 Mich. 569 ; 3 Phil. Ev. (C. & H. notes) 534; as to whether the shipper or the consignee should maintain it against the carrier, see Ang. on Carriers, §§ 495, 498 ; Hutchinson on Carriers, §§ 434-5; 2 Eedf.

Mandamus. claimed that Act 179 of 18S5, purported by its title to relate only to official bonds, and could not therefore cover those of an executor: see Underwood v. MeDuffee 15 Mich. 366 ; Shurbun v. Hooper 40 Mich. 505 ; Throopv. La/ngdon id. 6S2; Spencer v. Perry 18 Mich. 399.

Mandamus. Certain portions of the townships of Hamtramck and. Springwells were annexed to the city of Detroit by Act 398 of 1885, approved May 26th and taking immediate effect. At that date there were sundry liquor dealers in the annexed districts whose liquor taxes were then due, but respondent denies that they had yet been paid. Such taxes are required by How.

<p>Special bail— Time — Notaries.</p> <p>'1. If tlie twenty daj'S within which a person arrested on a capias is entitled to file special bail, expire on Sunday, he has the whole of the following day in which to file it.</p> <p>:8. A recognizance of special bail acknowledged before a notary public is void; notaries have no power to take such acknowledgments.</p> <p>.'8. A motion to strike from the files is the proper procedure for getting rid of a document that is a nullity.</p> <p>■4. A default for failing to file special bail may be disregarded if prematurely entered: and if an attempt in good faith to file such bail has been made, but the bail turns out to be a nullity, defendant should be allowed a farther reasonable opportunity to file it and to perfect it if excepted to.</p>

The highway commissioner of Burdell township gave notice that he would receive sealed proposals for the building of a bridge, and several bids were sent in ranging from $387 to $1000. The lowest bidder was not present when the bids were opened, and the commissioner, in announcing that he should award the job to him, added that if he did not give the necessary security he should accept the next higher bid.

(Green, J.) Ejectment. Defendants bring- error. A conveyance absolute on its face with an instrument of even date to reconvey on repayment of the consideration with interest is ¡prima facie a mortgage: Jones on Mortgages, § 244; Taylor v. Weld 5 Mass 109 ; Bailey v. Bayley 5 Gray 505 ; Murphy v. Galley 1 Allen 1Ó7; Acme v. Shears 1 Wend. 433; Fnos v. Sutherland 11 Mich. 539 ; Boach v. Cosine 9 Wend. 227.

<p>Error to Cass. (A. J. Smith, J.)</p> <p>Case. Plaintiff brings error.</p> <p>cited Young v. I). G. H. de M. By. 23 N. W. Pep. 71; Manchester dec. By. Oo. v. Eullarton 14 O. B. (N. S.) 53; Bansom v. St. Paul die. By. Co. 62 Wis. 178; Ilarty v. Bailroad Co. 42 N. Y. 468; Wakefield v. B. B.Co. 37 Yt. 330 ; Penn. By. Oo. v. Barnett 59 Penn. St. 259 ; Penn. By. Co. v. Ogier 35 Penn. St. 71; Kennedy v. Mayor 73 N. Y. 365 ; Polloek v. Eastern B. Co. 124 .Mass. 158; Chicago die. B. B. Co. v. Dunn 52 111. 451; Toledo, Wabash d¡ Western B. B. Co. v. Harmon 47 111. 298 ; 1 Thomp. Neg. 351, 420; Borst v. L. 5. c& M. S. B. B. Co. 4 Hun 347 ; Geveke v. G. B. da Ind. B. B. 57 Midi.</p> <p>cited as to contributory negligence, Penn. B. B. Co. v. Beale 73 Penn. St. 504; Cent. By. v. Feller 84 Penn. St. 226 ; Flemming v. W. P. B. B. 49 Cal. 253; Arts v. C.B.I.da P. By. Co. 34 la. 154; Benton v. C. B. B. 42 la. 192 ; Turner v. Hannibal die. B. B. Co. 74 Mo. 602 ; Penn. By. Co. v. BighterYb N. J. L. 180 ; Moore v. By. Co. 24 N. J. L. 284 \D.L.da IF. By. Go. v. Toffey 38 N. J. L. 525; Beliefontaine By. Co. v. Hunter 33 Ind. 335; Terre Haute die. B. B. Co. v. Clark 73 Inch 16S ; Gorton v. Erie JR. E. 45 N. Y. 660 ; Salter v. U. c& B. B. B. Co. 75 N. Y. 273; Trow v. Vt. Cent. B. B. Go. 24 Yt. 4S7; Butterfield v. IF. B. B. Oor. 10 Allen 532; Wheeloek v. B. c& A. B. B. Go. 105 Mass. 206 ; Fleteher v. A. c& P. B. B. Go. 64 Mo. 484; Powell v. Missouri Paeifie B. B. Go. 76 Mo. 80; Schofield v. G. M. <Ss St. P. B. B. Go. 114 U. S. 615 ; Tucker v Duncan 9 Fed. Rep. 867 ; Holland v. O. M. c& St. P. B. B. Go. 18 Fed. Rep. 243 ; Railroad Go. v. Jones 95 U. S. 439 ; Lewis v. B. c& O. Co. 3S Mel. 588; State v. P. W. & B. B. B. Co. 47 Md. 76 ;L.S.c& M. S. B. B. Go. v. Miller 25 Mich. 290; Williams v. M. O. B. R. 2 Mich. 259 ; M. G. B. B. v. Campau 35 Mich. 468 ; LeBaron v. Joslin 41 Mich. 313; Davis v. Detroit c&e. B. B. Go. 20 Mich. 105 ; Kelly v. Hendrie 26 Mich. 255; D. c& PL By. Go. v. Van Steinburg 17 Mich. 99; Haas v. G. B. c&e. B. B. Go. 47 Mich. 401; Davies v. Mann 10 M. & W. 546 ; Bridge v. Grand c&e. B. B. Co. 3 M. & W. 244 ; Tuff v. Warman 5 O. B. (N. S.) 573; Radley v. London c&e. B. B. L. R. 1 App. Cases 754.</p>

(Bussell, J.) Case. Defendant brings error. The guardian of a minor may make such contracts in respect to his ward aud her estate as he sees fit, and will be personally bound thereby whether they are properly chargable against the estate or not: Mason v. Caldwell 10 111. 196 ; United States v. Bender 5 Cr.

<p>Appeal from the Superior Court of Grand Rapids. (Parrish, J.)</p> <p>Divorce bill. Complainant appeals.</p>

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

<p>Fire insurance — Want of sworn plea — Cross-examination.</p> <p>1. The averment in a declaration on an insurance policy, that it was made and issued to plaintiff as described, is admitted if not denied by affidavit filed with the plea. Circ. Court Rule 79. And in such case questions arising out of an alleged mistake in the name of the insured or relating to the ownership of the policy or the mode of its procurement are not open to consideration.</p> <p>2. Whore in an action on a fire insurance policy the plaintiff has testified as to the condition of her dress and her children’s in escaping from the fire, cross-examination on this point is immaterial unless fraud is charged or the fire was wrongful, Nor can it be made a basis of impeachment.</p> <p>S. Repetitions of questions in different language are properly excluded on cross-examinations after full answers have been given.</p>

(Stickney, J.) Injunction bill to restrain suit in ejectment. Complainant appeals. No one need be made a party to a bill in equity whose interests cannot be affected by the decree : 1 Moulton’s Oh. PI. 98 ; 1 Dan. Ch. PI. 2S4; Powers’ Puterbaugh’s PI. & Pr. 37; Hillman v. Hillman 14 IIow. Pr. 459 ; Nexoboxdd v. Warrin 14 Abb. Pr. 85; Stockxoell v. Wager 30 How.

<p> Injunction. </p> <p>1. A hearing- upon an injunction bill cannot be had after the act has been done -which, it is the sole purpose of the bill to restrain; the remedy for any consequent injury is to be had, if at all, at law.</p> <p>2. Injunction will not lie for the purpose of passing on abstract rights or wrongs apart from some threatened injury to the person seeking relief, nor when such injury is remediable at law.</p>

(Gage, J.) Replevin. Defendants bring error. The legislature of any state has a right to pass laws giving liens on vessel property, and when a state has by its laws given such liens, admiralty courts can enforce them : Desty’s Shipping § 87, n. 11; The General Smith 4 Wh. 444; The Aurora 1 Wh. 96; Peyroux v. Howard 7 Pet. 324; New Jersey S. & Go. v. Merck. Bank 6 How. 390 ; The Lottawanna 21 Wall. 558; The Garland 5 Fed. Rep. 924; The Gxáding Star 18 Fed.

<p> Agent paying individual debt with principal’s money. </p> <p>A woman doing business, with her husband as agent, authorized him to sell certain, notes belonging to her in order to raise money to use in the business. He indorsed the notes as agent, and then sold them to a customer to whom he was individually indebted, and without his wife’s permission ho allowed the purchaser to apply part of the purchase price upon his debt. Held (1) that the indorsement was notice enough to put the purchaser on inquiry as to his authority to make such application; (2) that in an action by the wife against the purchaser to recover back the money so applied, a contract between the husband and the purchaser, with which the wife was not shown to be connected and which provided for the payment of the husband’s debt by allowances in transactions with him in the course of the wife’s business, was wholly irrelevant to the issue. The agent could not charge his wife’s business with this debt without showing her assent to this arrangement, and if he could this application of money was not an allowance within the terms of the contract.</p> <p>The ownership of the notes discounted and the nature and extent of the agent’s authority in discounting it were questions for the jury.</p>

<p>Suit on note — Blankincloi'seinent—Lien.</p> <p>1. An indorsement by the payee in blank does not affect liis right to sue upon a note to his order while it remains in his hands.</p> <p>2. Proceedings taken to establish a lien upon partnership property to satisfy a debt evidenced by their note are immaterial in an action on the note if the lien has not been, enforced or anything realized from it.</p>

<p>Appeal from Montcalm. (V. H. Smith, J.)</p> <p>Divorce bill. Complainant appeals.</p>

(Judkins, J.) Assumpsit. Defendant brings error. An agent is personally liable on a note signed by him unless lie signs as agent: Leadbitter v. Farrow 5 M. & S. 345; Sowerby v. Butcher 2 C. & M. 368; 4 Tyrwli. 320; Byles on Bills (8th ed.) 33; Dicey on Parties 240 ; Williams v. Bobbins 16 Gray ; Dubois v. Carnal Co. 4 Wend. 285 ; Woodbury v. Blair 18 la. 5J2; Bickford v. Ba/nk 42 111. 238 ; Band v. Bale 3 W. Ya. 495 ; Moss v. Livingston 4 Comst. 208 ; Bovey v. Ma-gill 2…

<p>Error to Oceana. (Bussell, J.)</p> <p>Replevin. Defendant brings error.</p>

<p>Error to Leelanaw. (Itamsdell, J.)</p> <p>Case. Defendant brings error.</p>

<p>Assignments f or benefit of creditors — Removal of cause — Municipal court— Receivership — Mandamus.</p> <p>1. Statutory proceedings to take charge of and administer assigned estates are special and peculiar, and not like an ordinary suit in chanceiy. And they are not removable to a court of merely municipal jurisdiction from the court which is designated throughout the statute as \ the proper one to take cognizance of them. How. Stat. ch. 303.</p> <p>2. Municipal courts are created only for the common judicial business of a municipal tribunal.</p> <p>3. Mandamus will not lie, whether an appeal does or not, to review an order for the appointment of a receiver for an assigned estate.</p>

<p>Assignment for benefit of creditors — Final orders — Bemoml of receiver and sale by him.</p> <p>1. Any proceeding however called, whereby private rights are seriously affected or wrongfully divested, is reviewable in some form.</p> <p>2. A receiver of an estate assigned for the benefit of creditors is a trustee, and subject to the general duties requiring impartiality; he cannot collude with any one, or prefer one set of interests to another. And the power to appoint him is subject not only to all rights paramount to the assignment, but to legal conditions.</p> <p>3. Redress against the receiver of an assigned estate for injury to private rights therein must be had by petition in the court appointing him, and not by original bill. But the form of the remedy does not destroy its substance, and the action of the court thereon is reviewable on appeal if the fund in which the complaining party claims an interest is alleged to be liable to such danger as to be within the risks against which the law gives protection.</p> <p>4. The jurisdiction to entertain an appeal is not affected by the question whether or not the charges made turn out on hearing to need redress, or the particular redress asked for,</p> <p>5. The merits of a case cannot be considered on a motion to dismiss an appeal therein.</p> <p>6. An order for the sale of assigned property by a receiver is final and appealable where it provides for an entire disposal of the trust funds, and may affect the claims of creditors and others, and where also it contains special and unusual provisions as to notice of sale, and sale in large lots, and allows to some claimants but denies to others interested certain privileges of buying on credit, and allows sales without mortgage or other property security.</p> <p>7. An appeal in chancery can be dismissed for want of jurisdiction only.</p>

<p>Appeal from Isabella. (Hart, J.)</p> <p>Petition by Auditor General for tax sale. Claimant appeals.</p>

(A. J. Smith, J.) Information for obtaining money by false pretenses. Respondent brings error. Private counsel cannot take part in a criminal prosecution in the interest of his client: Meister v. People 31 Mich. 99; Wellarv. People 30 Mich. 17-24; Sneed v. People 38 Mich. 248; People v. Bemis 51 Mich. 422; Hurd v. People 25 Mich. 406 ; Ulriohv. People 39 Mich. 246 ; People v. Hurst 41 Mich. 328.

<p>Error to Oakland. (Stickney, J.)</p> <p>Information for larceny from the person. Respondent brings error.</p>

Exceptions before judgment from Gratiot. (Hart, J.) Information- for larceny. Respondent was convicted. Where an information for larceny contained no allegation of the value of the property an amendment was allowed by the court: People v. Donald 48 Mich. 491; 1 Archb. Or. PI. 100; 1 Bish. Or. Pro. § 611; statutes permitting amendments should have a broad construction: 3 Russ. Crimes 324, 332.

<p>Error to Ottawa. (Arnold, J.)</p> <p>Information for horse-stealing. Respondent brings error.</p>

<p>Error to the Necorder’s Court of Detroit. (Swift, J.)</p> <p>Complaint for keeping saloon open on Sunday, P.p.ftnnn rl - ent brings error.</p>

<p>Error to Eaton. (Hooker, J.)</p> <p>Neplevin. Plaintiff brings error.</p>

(Gridley, J.) Intervening petition. Petitioner appeals. cited Marine Bankv. Fulton 2 Wal. 252, and claimed that it' could be followed into the receiver’s hands : Ni. Louis v. Johnson 5 Dill. 241; Van Alen v. Nat. Bank 52 N. Y. 1; Nat. Bank v. Ins.

<p> Suit by administrator to set aside decedent’s mortgage. </p> <p>An administrator de bonis non cannot bring suit to set aside a mortgage made by his decedent without averring a deficiency of' assets in his hands and in those of his predecessors in the trust, to satisfy the obligations existing against the estate. How. Stat. §§ 5881-5.</p>

<p>Error to Montcalm. (Y. II. Smith, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>A surety is discharged by granting his principal an extension of time: 1 Pars. Ñ. & B. 241; Miller v. Stewart 9 Wheat. 680; Fellows v. Prentiss 3 Den. 512; Brigham v. Went-worth 11 Cush. 123 ; Wilson v. Lloyd L. R. 16 Eq. Cas. 60 ; Ohie v. Spencer 2 Whart. 253 ; Smith v. Shelden 35 Mich. 49; Heffron v. Ilanaford 40 Mich. 307; Ward v. Stout 32 111. 399 ; a sole maker of a note may be a surety: Brandt on Suretyship 825 ; it may be shown by parol that one signed a note as surety: Wilson v. Green 25 Yt. 450 ; Mariners' Banh v. Abbott 28 Me. 280 ; Banh v. Hoge 6 Ohio 17 ; Grafton Banh v. Kent 4 N. II. 221; Harris v. Broohs 21 Pick. 195; Carpenter v. King 9 Met. 511.</p>

<p>Taxation — Injunction against tax sale.</p> <p>1. The tax-law of 1885 (Act 153, sec. 107) in forbidding the injunction of assessment proceedings thereunder does not apply to proceedings for the sale of lands for taxes assessed and levied before the enactment of that law.</p> <p>3. Injunction lies to restrain the sale for taxes of lands illegally assessed; as where the lands belonged to a non-resident and were assessed at three times their value and disproportionately with the lands of residents.</p>

<p>Boundaries — Cloud on title — Adverse possession — Forfeiture.</p> <p>1. The settlement of boundaries that are disputed and difficult of ascertainment is not on that account within the jurisdiction of a court of equity.</p> <p>2. A boundary stated in a deed as “a line forty feet above tbe border of tbe river at high-water mark ” is not ambiguous, and if disputed is to be fixed like any other fact, by testimony and an examination of the ground.</p> <p>3. A cloud upon title cannot be created by the owner of the title and exist by his grant. And rights that may accrue to him from the grant- or’s continued occupancy after deeding tlie property, are not to be enforced in equity if the bill does not aver such possession as by lapse of time or otherwise wouldjegally extinguish defendant’s claim.</p> <p>4. Where a deed contains a covenant to convey certain swamp land when defendant shall have drained it, but does not fix the time within which to do so, neither the grantor nor person claiming under him can take proceedings to forfeit such contract, or compel specific performance until they have put defendants in default after reasonable demand that they shall fulfill the condition.</p>

(Gage, J.) Bill for discovery, etc. Defendants appeal. Stockholders are accountable in equity to creditors of the corporation to the extent of corporate property distributed amongst them that ought to have been applied to the debt: Ang. & Am. Corp. §§ 599-604; Upton v. Trebilcooh 91 U. S. 47 ; Sanger v. Upton id. 60.

(Gage, J.) Case. Defendant brings error. A town is not responsible for injuries caused by defects in a street outside the traveled portion thereof: Perkins v. Fayette 68 Me. 152 ; Kelley v. Fond du Lae 31 Wis. 479 ; Bassett v. St. Joseph 53 Mo. 290; Brown v. Glasgow 57 Mo. 156; there is no common-law liability; Moulton v. Sanford 51 Me. 127; Brooks v. Acton Í17 Mass. 204; nor will the town be liable if the injured person is in any way to blame : Farnum v. Concord 2 N. II.…

<p>Brain taxes — Branches of government— Writ of prohibition.</p> <p>1. How. Stat. § 1730 is invalid in so far as it seeks to authorize the enforcement of a drain tax that is void for want of jurisdiction to levy it, or to impose upon a court such administrative duties as the appointment of surveyors to examine the premises assessed for the purpose of enabling the court to re-levy the tax.</p> <p>3. The Legislature cannot validate acts that are void for jurisdictional defects.</p> <p>8. The three branches of government are to be kept as distinct as possible; and legislation is invalid that attempts to confer on one powers that under the Constitution belong to another.</p> <p>4. Prohibition issues to restrain a court of equity from proceeding with the exercise of power conferred upon it by an invalid act.</p>

(Gage, J.)' Information for burglary. Respondent brings error! Though burglary is an offense that must be committed in the darkness of night (Pish. Stat. Or. § 276; Rose. Crim. Ev. 345; 1 Hale P. C. 560; Rex v. Tandy 1 C. & P. 297; People v. Griffin 19 Oal. 578 ; State v. Bancroft 10 N. H. 105), and the breaking must be done by night, the entire crime is not confined to one night: Tiff. Or. Law 617; 2 Whart. Or.

(Newton, J.) Complaint for selling liquor to habitual drunkard. Respondent brings error. It is discretionary to postpone sentence a reasonable time after conviction: Bisli. Cr. Pro. § 880; People v. Reilly 53 Mich. 262; Weaver v. People 83 Mich. 297.

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

<p>Constitutional law — Oleomargarine—Titles of statutes — Definitions—Judia knowledge.</p> <p>1. Act 186 of 1885 “ to prevent deception in the manufacture and sale of dairy products, and to preserve the public health,” is unconstitutional in going beyond the title (1) by making such manufacture and sale a crime ; (2) by providing that the State shall purchase the manufacturing machinery ; (3) by requiring the Board of State Auditors to allow the sum judicially decreed to be paid for such machinery, and thereby interfering with its constitutional prerogative to pass on any claims against the State.</p> <p>2. The Legislature cannot extend the scope of the title of an act by so defining it in the body of the act as to make it cover more than the natural and proper meaning of the words will warrant.</p> <p>3. Neither court nor Legislature can have judicial knowledge of the merits or defects of oleomargarine so as to be able to declare its hygienic value.</p> <p>4. Whether the use and manufacture of oleomargarine can be prohibited by the Legislature — Q.</p> <p>5. Courts deal with legal questions, and not with abstract principles of public economy.</p>

(Green, J.) Assumpsit. Defendants bring error. Where the time for which a bond is to run is uncertain the courts construe it to be a reasonable time: Crémor v. ILigginson 1 Mas. 335 ; White v. Reed 15 Conn. 457; parol testimony is admissible to apply the instrument to the subject matter: Coleman v. Post 10 Mich. 422; Bennett v. Baidler 16 Mich. 150; Bowlter v. Johnson 17 Mich. 42; Kimiball v. Myers 21 Mich. 276; Ilyler v. Nolan 45 Mich. 357; Lee v. Wisner 38 Mich. 87 ; and…

<p>Lis pendens — Transfer from one suit to another — Abandonment of suit— Notice by possession.</p> <p>1. A notice lis pendens affects tliose only who afterwards and pending suit seek to obtain interests, as purchasers or incumbrancers, in the property it refers to; and one who has begun suit to establish an equitable lien thereon upon the basis of previous dealings with defendant does not himself become thereby a purchaser or incumbrancer within the protection of the recording laws as against any rights acquired before the notice is filed.</p> <p>2. A notice lis pendens is ineffective as against a mortgagee whose mortgage antedated the notice though it was not recorded until after the notice was filed.</p> <p>8. The operation of a lis pendens as notice lasts, if the suit is not abandoned, until it is' closed by final decree, provided it is prosecuted with reasonable diligence and in good faith; otherwise a purchaser who has no actual notice is not affected by it.</p> <p>4 The purpose of a notice lis pendens is to prevent defendant from so alienating the property in dispute as to affect complainant’s rights and to bind it wherever it may be when decree is entered.</p> <p>5. A suit is abandoned if before its completion another seeking the same relief is instituted and carried to decree in its place; and the effect of a lis pendens filed on the institution of the first suit is not transferred to the other. -</p> <p>6. The possession and use of land by a firm is not notice to purchasers that the land is partnership assets where the record title shows that the partners are tenants-in-common owning undivided half interests therein. It is consistent with individual ownership as tenants-in-common, and will not even put purchasers upon inquiry.</p> <p>?. A decree dismissing a bill of complaint can only be made by the court; it cannot be entered as of course upon default in making answer.</p>

<p>Error to Wayne. (Full Court.)</p> <p>Assumpsit. Defendant brings error.</p>

(Arnold, J.) Assumpsit. Defendant brings error. A partner who has contributed funds which another should have contributed can bring assumpsit for them before the partnership affairs are settled: Kinney v. Robison 52 Mich. 392; Wright v. Eastman 44 Me. 220; Williams v. Henshaw 11 Pick. 84; Oollamer v. Foster 26 Yt. 758 ; 1 Pars. Cont. (5th ed.) 164.

<p>Creditor’s bill — Accounting—Jurisdiction as to lands.</p> <p>1. A judgment creditor’s bill alleging the issue of execution and its return unsatisfied and the disposal of a large part of defendants’ goods, may properly call for an accounting for the money received therefor, and is maintainable, it seems, though it asks that encumbrances be set aside without establishing the existence of a lien on the property.</p> <p>2. A bill in aid of execution cannot affect lands in other counties than that in which it is filed. How. Stat. § 6612.</p> <p>3. The dismissal of a judgment creditor’s bill may be without prejudice where the sole ground of dismissal is that lands sought to be reached by it were beyond the jurisdiction of the court.</p>

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

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

(Parrish, J.) Injunction bill. Defendants appeal. as to the right of a taxpayer to file the bill in this case, cited Curteni/us v. Hoyt 37 Mich. 583 ; Callam v. City of Saginaw 50 Mich. 7 ; Dill. Hun. Corp. §§ 914, 921; High on Inj. (2d ed.) §§1298-1300; Crompton v. Zabriskie 101II. S. 601. and Blair, Kingsley & Kleinhans for defendant Electric Light Company.

<p>Good faith of purchaser — Becital of facts in request to charge — Knowledge and fraudulent intent — Abuses of trial,</p> <p>1. Where the good faith of one who buys a stock of goods is in question in a contest between himself and an officer who has taken them under an attachment, the purchaser may properly testify that lie bought them in good faith for what he considered a full consideration and with no other purpose than to get the stock at a fair price.</p> <p>2. A request to charge which begins with a recital of facts as undisputed and closes with several propositions which the court is expected to charge “ upon these undisputed facts” must be considered a single request; and if any part of the statement of facts is incorrect the whole request must fail and the judge is right in refusing to give it. Nor can he declare a given state of facts as to which there is 'any contest without usurping the province of the jury.</p> <p>3.Actual participation by a purchaser in the fraudulent intent with which one makes a sale to defraud his creditors -is not a necessary condition to its avoidance; if'the purchaser is not a creditor it is enough that ho knows what would put a prudent man upon inquiry as to the motive of the sale.</p> <p>4.Where counsel, in summing up, appeal to a jury’s prejudice against non-residents and make injurious remarks not justified by evidence, and exception is taken to this conduct, it is error if the trial judge omits to stop it and counteract its effect. So held where counsel said that attaching creditors adversely interested were hogs and wanted to gobble up all the property.</p>

<p> Execution for deficiency on foreclosure. </p> <p>A foreclosure decree fixes the amount due on the obligation and security, and is a final adjudication on that point; and no objections can be made to the issue of execution for a deficiency unless they arose after confirmation of the foreclosure sale and recognize the decree and go to its discharge.</p>

<p>Error to Emmet. (Ramsdell, J.)</p> <p>Ejectment. Defendant brings error.</p>

<p>License by minor to remove Umber — Trespass.</p> <p>A minor son, occupying land as tenant-in-common with. his mother and sister, has no right in himself, without their authority, to give, sell or otherwise transfer the timber on the land to a stranger or assent to his entry on the land to remove it. And for such entry the tenants-in-common can maintain trespass.</p>

<p>Conflagrations — Negligence—Expert evidence— Voluntary risks.</p> <p>1. In an action for negligent injury caused by a fire the fire marshal’s opinion as to its cause is inadmissible; it is not a question for expert testimony. Nor can he testify to what he heard said next day at the scene of the fire; such things are not resgestse.</p> <p>2. Putting ashes into a wooden barrel in violation of a municipal ordinance is not negligence per se; it is a question of fact whether it is negligent in a particular case.</p> <p>3. Municipal ordinances are general and impose duties which in particular cases may not be important; their purpose is public and their violation is to be redressed by legal penalties.</p> <p>4 One who voluntarily exposes himself to evident risks caused by another’s negligence cannot recover against the latter for bodily injuries resulting from such exposure even though the exposure was for the purpose of saving property or the life of an animal.</p>

<p>Appeal from Ingbam. (G-ridley, J.)</p> <p>Specific performance. Defendant appeals.</p>

(Jennison, J.) Bill to compel opening of highway. Defendant Campau appeals.

<p>Mandamus — Documentary evidence.</p> <p>1. A relator or respondent who relies on official records to establish his right must produce such records or certified copies thereof with his petition or answer; it is not enough to refer to the originals.</p> <p>2. Costs of the motion were allowed respondent where relator had leave to withdraw his petition in order to attach to it the record evidence on which his claim was based.</p>

<p> Gross-replevin, </p> <p>A motion to quash the writ of replevin in a cross-suit is not the proper procedure for getting rid of the cross-action. The second proceeding may be shown in bar of the first, or the defendant in the cross-writ can plead in abatement if he wishes to raise the question at the outset.</p>

<p>Small-pox — Expense of nursing.</p> <p>The authority of a township board of health to guard against small-pox (How. Stat. § 1647), extends to making contracts for the nursing of patients and to destroying infected clothing, And when they have allowed the accounts for such services rendered and property destroyed, the Board of Supervisors must pass such accounts, and can be compelled by mandamus to do so; they cannot refuse on the ground that the patients were themselves able to pay, or that sundry tax-payers considered the charges extortionate.</p>

<p>Substitution of attorneys — Waiver of error.</p> <p>1. A client is always entitled to be heard as to his representation before the court; and a change therein, made ex parte by one or all of the counsel, is a nullity if made without the client’s concurrence or consent.</p> <p>2. A client has a right to waive errors and exceptions and the right to move for a new trial, and will be bound by such waiver unless it is made invalid by some cause pertaining to the client; it cannot be sot aside by any one else.</p>

(Stickney, J.) Case. Defendant brings error. claimed that defendant was not obliged to use extraordinary efforts to make the needed .repairs in the night-time, and there was therefore no question of negligence to submit to the jury: Robinson v. Grand Trunk Ry. Go. 32 Mich. 322; Grand Rapids do Ind. R. R. v. Monroe 47 Mich. 152; Toledo, Ganada Southern & Detroit Ry. v. Eder 45 Mich. 329 ; Stephenson v. Grand Tnmk Ry.

<p>Error to St. Joseph. (Pealer, J.)</p> <p>Appeal from commissioners on estate. The executors bring error.</p>

(Speed, J.) Bill for accounting, etc. Complainant appeals. The duration of a partnership may be determined by all the facts and circumstances of its formation and the acts of the partners: Lindley on Partnership, 218-220 ; Parsons on Partnership, 415; Story on Part. §§84, 277; in case of a partnership at will, it may be dissolved at any time, but all subsisting engagements must be wound up, and the partnership continues for that purpose.

<p>General demurrer — Encroachment by cornice projecting over boundary— Allegations in bill to abate nuisance• — Irreparable injury — Ejectment.</p> <p>1. A general demurrer to a bill in chancery challenges the equity of the case therein presented, and must be overruled if it sets out any case for equitable relief, however imperfectly.</p> <p>'2. A bill in equity will lie against complainant’s neighbor for building and maintaining a cornice that projects over complainant’s boundary line to the permanent injury and depreciation of his property. And this is so, though a remedy be given by statute (flow. Stat. cli. 273) for the abatement of a private nuisance where the party complaining thereof has recovered therefor in an action on the case.</p> <p>•3. Whether, in a chancery bill to abate a private nuisance, it is necessary to allege that the injury it does exceeds $100; and whether the suit must fail, if it falls below that — Q. But a bill alleging that the injury amounts to $500 is not bad for setting up a standard of damages that might be recovered at law.</p> <p>■4. The “irreparable injury” alleged asa ground of equitable jurisdiction, is not necessarily such injury as cannot be measured by a pecuniary standard.</p> <p>5. Tlie allegation, in a bill to abate the private nuisance of an encroachment on complainant’s premises, that defendant has claimed ownership of a strip thereof, is not such a statement of a dispute about a boundary as would deprive the court of jurisdiction, if the bill states with certainty the actual boundary and complainant’s ownership on one side.</p> <p>6. As between the parties to a bill to abate a nuisance by encroachment, the complainant, being in possession of the invaded premises, cannot bring ejectment; it is for the party maintaining the nuisance to do so if he claims the right to them.</p>

<p>Dissolution of Attachment — Levy of execution.</p> <p>1. It is no bar to the dissolution of an attachment upon property the right to which defendant has not relinquished, that an execution has meanwhile been levied upon it in favor of a third party. Johnson v. DeWitt 36 Mich. 95 overruled.</p> <p>2. The dissolution of a wrongful attachment cannot affect the lien of an execution in favor of a third person upon the same property.</p>

(Gridley, J.) Creditor’s bill. Defendant appeals. Where a bequest to a tenant for life is specific, or the intention that he should enjoy the property in its existing state is apparent, he is entitled to such possession and enjoyment even as against the executor: 2 Wins.

<p>Contract of hire — Statute of frauds — Parties.</p> <p>.1. Where, under a contract for a year’s service the employee has gone on from year to year and at the end of a year is allowed to go on without objection, a presumption arises which will warrant a jury in finding that the parties to' the contract have assented to its continuing in force for another year. And the Statute of Frauds does not apply to defeat it.</p> <p>2. One who has engaged in his own name to furnish his own services and those of his wife can sue on the contract in his own name; as his wife is not a party thereto and her earnings under it belong to her husband, she need not be joined as plaintiff.</p>

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

<p> Official papers. </p> <p>One who is shown to he entitled to the office of supervisor can compel his predecessor to deliver to him the hooks and papers pertaining to the office. How. Stat. § 8539.</p>

<p>Delivery of official papers to successor — Appearance—Certiorari.</p> <p>1. The statutory proceeding for compelling a public officer to surrender the books and papers of his office to his successor (How. Stat. ch. 295) is summary and does not apply for determining the latter’s right to the office, but only for ascertaining whether he has been declared by the proper authority to have been elected or appointed.</p> <p>2. The right to a public office is to be settled by a proceeding in the nature of quo warranto.</p> <p>8. Public proclamation by the inspectors of election, after canvassing the votes, that a specified person has been elected is sufficient prima facie evidence of his right to the books and papers of the office to warrant an order to the former incumbent to show cause why he should not surrender them to his successor.</p> <p>4. Appearance in response to a summons to answer a complaint waives the informality where the proper process should have been an order to show cause.</p> <p>5. Certiorari does not lie to review proceedings under How. Stat. ch. 295, to compel a public officer to surrender the books and papers of the office to his successor, unless a want of jurisdiction appears, or a gross violation of the statute.</p>

Quo warranto. Delator in quo warranto proceedings must state that he is a citizen and eligible to the office lie claims. Reynolds v. State 61 Ind. 392; State v. Rieler 87 Ind. 320 ; State v. Long 91 Ind. 351.

(Hooker, J.) Assumpsit. Plaintiff brings error. claimed that the contract in the case was the individual obligation of the trustees: White v. Skinner 13 Johns. 307; 'Tippets v. Walker 4 Mass. 594; Haverhill Insurance Co. v. Newhall 1 Allen 130; Fiske v. Eldridge 12 Gray 474; Tanner v. Christian 4 El. & Bl. 591; Parker v. Winlow 7 El. & Bl. 942; Sturdivant v. Hull 59 Me. 172; Tannatt v. Rocky Mountain National Bank 1 Col. 278; Powers v. Briggs 79 111. 493.

(Russell, J.) Assumpsit. Defendant brings error. Where the price of merchandise depends on its quantity the measuring of it is presumably a condition precedent to its transfer: Lingham v. Eggleston FI Mich. 324; Hatch v. Fowler 28 Mich. 205 ; Hahn v. Fredericks 30 Midi. 223 ; Wilkinson v. Holiday 33 Midi. 386 ; Grant v. Merchants' Bank 35 Mich. 515 ; Scotten v. Sutter 37 Midi. 526; Carpenter v. Graham 42 Mich. 191; Brewer v. Salt Ass’n 47 Midi. 526 ; Byles v. Colier 54 Mich.…

. (Montgomery, J.) Replevin. Defendants bring error. Creditors have no right to complain of dealings with property which the law does not allow them to apply on their claims : Smith <y. Rumsey 33 Mich. 183; Dart v. Woodhouse 40 Mich. 399 ; Rhead v. Hounson 46 Mich. 247; Anderson, v. Odell 51 Mich. 492.

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

(Chambers, J.) Garnishment proceeding. The garnishee brings error. Garnishment proceedings can be pleaded in abatement of a suit for the debt against the garnishee. JJea?' v. Miichell 23 Mich. 382.

(Russell, J.) Bill to construe will. Defendants appeal. claimed that the provision suspending alienation was void (Coster v. Lorillardli Wend. 265), and also the reservation of land to trustees for annuities: Ilawley v. James 16 Wend. 62.

(ITarfc, J.) Ejectment. Defendants bring error. A wife may mortgage her property to secure her husband’s debt: Watson v. Thurber 11 Mich. 457 ; DeVries v. Conklin 22 Mich. 259 ; and though the husband join in the mortgage, still her separate property will be bound : Frickee v. Donner 35 Mich. 151; lots fenced in one parcel may lie so sold on mortgage foreclosure: 2 Jones on Mortgages, 1618, 1857-8; Germ,an Banlc v. Stump/ 73 Mo. 311; Bamerson v. Marvin 8 Barb. 9 ; Griswold…

(Green, J.) Assumpsit. Defendant brings error. Proceedings for the assessment of a tax which under the law may culminate in the issue of a deed that is prima facie evidence of the regularity of the proceedings, constitute a cloud upon the title to the property, although there may be an illegality in the proceedings appearing upon their face, which will render thorn and the deed to be issued void : Palmer v. Rich 12 Mich. 414; Scofield v. City of Lansing 17 Midi. 437; M. II.…

(A. J. Smith, J.) Replevin. Defendant brings error. A married woman may .acquire property, own and control it, the same as though unmarried: Berger v. Jacobs 21 Mich. 215; it does not become her husband’s by being in his possession : White v. Zone 10 Mich. 333; she may take it from his possession; Starkweather v. Smith 6 Mich. 377; he has no control over it: Agricultural Ins.

<p>Error to Cass. (A. J. Smith, J.)</p> <p>Appeal from appointment of guardian. Respondent brings error.</p>

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

(Grant, J.) Assumpsit. Defendants bring error. When one of two inconsistent remedies has been elected the right to pursue the other is lost: Thompson v. Howard 31 Mich. 309 ; Yanneter v. Crossman 42 Mich. 465; Detroit v. Mich. Paving Co. 38 Mich. 361; Field v. Burton 49 Mich. 53; Wilmot v. Richardson 2 Keyes 519 ; Goss v. Mather 2 Lans. 283; Ward v. Day 4 B. & S. 337 ; Smithv.

<p>Appeal from the Superior Court of Detroit. (Chipman, J.)</p> <p>Specific performance. Defendant appeals.</p> <p>cited against the relief prayed, Clinton v. Fly 10 Me. 292; Eastman v. Datchelder 36 N. H. 141; Bethlehem v. Annis 40 N. H. 34; Flanders v. Lamphear 9 N. H. 201; Flood v. Finlay 2 Ball & B. 9.</p>

<p>Replevin — Demand.</p> <p>Demand before bringing replevin is unnecessary tvliere defendant has de liberately obtained tbe goods by a fraudulent promise to pay for them which he did not mean to perform.</p>

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

<p>Garnishment — Disclosure.</p> <p>1. A garnisliee’s disclosure, even if it does not positively confess liability, may establish it when aided by other evidence.</p> <p>2. A garnishee’s statement that he does not know whether he owes the principal defendant or some one else for certain work, and that the defendant told him he only wanted enough money to pay expenses, and that the rest was to go to another person, is not such a disclosure as will sustain a judgment against the garnishee.</p>

(Y. H. Smith, J.) Motion for leave to appeal. The moving party brings error.

(Gage, J.) Assumpsit. Plaintiff brings error. A contract not to be performed within a year is good if only the party whom it is sought to charge signed it: Clason v. Bailey 14 Johns. 488, criticising Lawrenson v. Butler 1 Sell. & Lef. 13 ; Justice v. Lang 42 N. Y. 493 : 52 N. Y. 323 ; 63 N. Y. 633 ; Worrall v. Munn 5 N. Y. 229; Parton v. Crofts 16 C. B. (N. S.) 11; Farwell v. Lowther 18 111. 252 ; Ilodson v. Garter 3 Pinney 213; Cheney v. Cook 7 Wis. 413; Laythoarp v. Bryant…

(Stickney, J.) Bill to reform lease. Complainant appeals. Where suits have been dismissed for laches it is because important witnesses have passed away or innocent third parties have acquired rights: Campan v. VanDyhe 15 Mich. 371; Bus-sell v. Miller 26 Mich. 1; Ilarlow v. Lake Superior Iron Co. 41 Mich. 583; but where defendant is not placed in any different position by lapse of time laches will- not be considered : Allore v. Jewell 94 IT.

(A. J. Smith, J.) Case. Defendant brings error. A railroad company must furnish and keep its track in such condition that it can be safely used by its employees : Chic, da F. W. By. Co. v. Bayfield 37 Mich. 205; Cooley on Torts, 561; Swoboda v. Ward 40 Mich. 420; Snoio v. Bous. B. B. Co. 8 Allen 441: Wood on Master and Servant 695 ; C., M. da St. P. By. Go. v. Boss 112 U. S. 377; Hough v. Bailway Co. 100 IT. S. 219 ; G. db F. W. By.

Exceptions before judgment from Allegan. (Arnold, J.l Manslaughter. Respondent was convicted. Death resulting from an attempted abortion is murder : 2 Bish. Or.

<p>Husband and wife — Title to land — acquieseenee.</p> <p>A man and his wife who had contentedly lived together for more than forty years fell out about the title to some land which the wife’s father had contracted to deed to the husband but had, iu fact, deeded to the wife apparently with the husband’s consent, and which the wife held, at any rate, for twenty years without objection from him. She then sold it and with the proceeds bought other lands the title to which, with his acquiescence, she took in her own name, though the husband claimed to have acquiesced under a misapprehension. Held, that after all this time the Supreme Court would not attempt to interfere with her title, without a clearer showing against it.</p>

(Gridley, J.) Trespass. Defendant brings error. There can be no joint right of action for trespass in the seizure of goods where there is no joint right to them : Warne v. Pose 5 N. J. L. 809; Barry v. Rogers 2 Bibb. 314; Sioeetzer v. Mead 5 Mich. 107; Giovcmni v. First Motional Bank 51 Ala. 177; St. L. R. R. Go. v. Linder 39 111. 433: 1 Suth. on Damages 210, 241; the authorities that sustain joint action in trespass are cases against naked’ trespassers, having no…

(Steere, J.) Replevin. Defendant brings error. cited as bearing on the statute, Putman v. Fife Lake 45 Mich. 134; McCoy v. Anderson 47 Midi. 503; Torrent v. Yager 52 Mich. 500; Monroe v. Greenhoe 54 Mich. 9; Osterhout v. Jones id. 22S; “ storage ” does not mean temporary deposit: Campbell v. Macliias 33 Me. 419; Desmond v. Machias Port 4S Me. 479 ; Lee v. Templeton 6 Gray 579; Ryerson v. Muskegon 57 Mich.

. (Montgomery, J.) Rill to enforce lien. Complainants appeal. A builder’s lien may be-good where title is obtained after the building began : Mountain City Market House v. Kearns 103 Penn. St. 403 ; Bell v. Cooper 26 Miss. 650 ; Rollvnv. Cross 45 N. Y. 766; the lien relates back to delivery of material if notice of the intent to claim it was filed : Dunklee v. Crane 103 Mass. 470 ; Galev.

<p>Error to Schoolcraft. (Steere, J.)</p> <p>Replevin. Defendant brings error.</p>

Case made from Kent. (Montgomery, J.) Claim for mesne profits. Claimant had judgment. The Supreme Court has nothing to review on case made if the record does not show what errors are relied on : McMillan v. Cheese Factory 23 Mich. 544; Wilkinson v. Earl 39 Mich. 626; and if a statement of them was not filed and served as required by Circuit Court Rulo 84 : Tuxbury v. French 39 Mich. 190.

<p>Case made from Kent. (Montgomery, J.)</p> <p>Claim for mesne profits. Defendant had judgment.</p>

Apjoeal from the Superior Court of Grand Rapids. (Parrish, J.) Proceedings to open a street. The Grand Rapids & Indiana E. R. Co. appeals. Negotiations with property owners before taking proceedings to -condemn their land are jurisdictional: O. <& M. L. 8. R. R. Co. v. Sanford 23 Mich. 41S ; M. C. db L. M. R. R. v. Clark 23 Mich. 519; Arnold v. Decatur 29 Mich.

<p>Master and servant — Dismissal for disobedience — Evidence of conversations —Irresponsive testimony.</p> <p>1. The fact of a conversation with a third person in the absence of the opposite parties to a case may be admissible to show the date of a negotiation with them when it would not be to show the terms of the negotiation itself.</p> <p>'2. It is not responsive to a question asking for a conversation held at a specified date, to sfdd statements made by one of the participants to the other at a subsequent date.</p> <p>-3. The omission to strike out irresponsive testimony to which no objection is made andón which no exception is based is not ground for reversal, especially if the court Iras already refused to receive such testimony.</p> <p>■4. An employer has no arbitrary power to dismiss his employee for a disobedience to orders that involves no serious consequences and is not “willful ” in the sense of being perverse, insubordinate or unreasonable; and its reasonableness is for the jury. Nor can disobedience be made a pretext for dismissal apart from the injury it causes. "Whether even a menial or domestic servant can be dismissed for mere harmless disobedience — Q.</p>