Volume 59 — Michigan Reports

(Steere, J.) Information for murder. Convicted of manslaughter. Respondent appeals. Respondent was informed against at the January, 1885, term of the circuit court for Schoolcraft county for the murder of his wife, Julia Coffman. Upon being arraigned his counsel moved to quash the information because 1. The records or files failed to show such a preliminary examination for said offense as the law provides, or a waiver thereof; and 2.

Mandamus. Relator applied by petition for a writ of mandamus to compel the common council of the village of Homer to approve a liquor dealer’s bond. An order to show cause was granted to which respondent made a return which was demurred to by relator for insufficiency.and for other causes set forth in the demurrer. The remaining facts are stated in the opinions.

(Fallass, J.) Complainant filed bill to perpetually- enjoin the erection and maintenance of a dam upon Muskeg-on river and a decree was granted as prayed for, from which defendants appeal. The facts are stated in the opinion.

<p>Error to Wayne. (Jennison, J.)</p> <p>Action for damages for breach of promise to marry. Judgment for plaintiff. Defendant brings error.</p>

(Chipman, J.) The “ Joseph Campau farm,” so called, was platted in 1866, upon which plat “Joseph Campau avenue” was laid out, running from the rear of said farm to the Detroit river.

<p>Directing verdict — Seasons not material, if no case made — Duty of municipalities to build aross-walhs — Act of 1879 construed."</p> <p>1. The action of the trial court in directing a verdict for defendant will be sustained, irrespective of the soundness of the reasons assigned, where It appears from the record that plaintifE failed to make a case.</p> <p>2. PlaintifE sued defendant under § 1442 How. Stat. (Public Acts 1879, p. 223), for failure to keep a cross-walk in repair, averring its existence, the duty of the city to keep it in repair, its failure so to do, its dangerous condition and the consequent injury to plaintifE. The evidence disclosed that the city had caused an intersecting street to be graded to a cross street, and no further, and had built a sidewalk ending abruptly at the cross street for a lot-owner, in default of his doing so, but had never ordered or constructed a walk across said cross street, which crossing at time of the accident to plaintifE was in its natural condition, or as had been marked or worn by foot travel at that point. At time suit was brought the city was not legally liable for damages resulting from defective sidewalks. Held, that plaintifE could not recover. The statute under which suit is brought does not give a right of action against a municipality for not constructing cross-walks, and imposes no duty upon it to build them, but when once built, the duty to keep in repair arises. The necessity for their construction is to be determined by the local authorities, and not by the court.</p>

<p>Appeal from Kent Circuit. (Montgomery, J.)</p> <p>Bill filed to foreclose a mortgage, and cross bill by second mortgagees.</p>

<p>Error to Marquette., (Grant, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Partition suit — Notice to defendants of commissioner^ meetings — Joint action of commissioners.</p> <p>1. In a suit for partition of lands, under chap. 270 How. Stat., notice to the defendants of the meetings of the commissioners is essential to the validity of their action. The requirement of such notice is always implied, when not expressed in the statute.</p> <p>2. The deliberations of the commissioners should be had together, and all must he present when final action is taken and the report is made and signed, although a majority can sign and acknowledge such report.</p>

Mandamus. Relator applied for an order to show cause why a mandamus should not issue requiring the common council of the city of Kalamazoo to act upon the approval of her bond, as a liquor dealer in said «city, which was granted, to which respondent made answer. The facts are stated in the opinions.

(Montgomery, J.) Complainant filed bill to enforce an alleged trust and a decree was granted in his favor, from which defendant appeals. The facts are stated in the opinion.

(Jennison, J.) The bill was filed to obtain a conveyance of certain real estate alleged to have been obtained by defendant in fraud of complainants’ rights and was dismissed, from which decree complainants appeal. The facts are stated in the opinion.

<p>Inconsistent statutes — When the later repeals the former — Increased penalties.</p> <p>Defendant was convicted of a violation of Act 351, Local Acts of 1879, as amended by Act 419, Local Acts of 1881, entitled: “An act to prevent the sale of unsound meat or provisions in the city of Detroit.” Held, that as the charter of said city, Act 326, Local Acts of 1883, authorized the common council to “prohibit, prevent and suppress the sale of every kind of unsound, putrid and unwholesome meat and provisions ” in said city, with power to impose greater penalties than those prescribed in the former act, it repealed the act of 1879 as inconsistent with said charter. j</p> <p>& Tlie fact that the record fails to disclose whether or not the common council has acted under the power given in said, charter cannot he permitted to influence the above result, the main question being, and to which inquiry must be directed, whether the two acts are inconsistent, and whether the Legislature intended by the subsequent act to repeal the former.</p>

<p>Application for order to show cause why patents should not issue.</p>

<p>Appeal from Ingham. (Gridley, J.)</p> <p>Tlie facts are stated in the opinion.</p>

(Montgomery, J.) Proponents appealed from an order of the circuit court for Kent county reversing the decree of the probate court admitting a will to probate. Tbe facts are sufficiently stated in the opinion.

<p>Costs — When amount paid for transcript of stenographer’s notes is taxable— The general and special statutes construed.</p> <p>1. Section 6515,.How. Stat., makes it the duty of the stenographer in the Kent circuit on the request of the counsel for either party to furnish a transcript of the testimony or proceedings in a case to he paid for by the party so requiring it, which shall be deemed the official record of the court, provided that if the judge shall desire such copy the stenographer shall make and file the same. Seld, in a case where the judge refused to order such transcript but stated that he could not settle a bill of exceptions without it, and the appellant thereupon procured and paid for said transcript at the statutory rate, that the sum so paid should be taxed in favor of the appellant who was successful in the Supreme Court.</p> <p>2. Section 6506, which makes it the duty of stenographers outside of the Wayne, Kent and Saginaw circuits, in case the judge, or the counsel for either party shall desire it, to make a legible transcript of his notes, to be filed by the clerk and preserved as part of the files in the case, subject to the inspection and use of both parties, plainly implies that he must do this without extra charge to or compensation from the parties, and the decision in Bell ¶. Pate, 48 Mich. 640, was specifically put upon that ground, and it was further held that if the stenographer refused to comply with the statute he could be compelled so to do.</p>

<p>Manufacturing corporations — Purpose of incorporation must be clearly stated in articles of association — Information to test legality of organization — Practice—Manufacture of ice for marJcet.</p> <p>1. The articles of association of a corporation organized under Act 41 SessionLawsof 1853 (Section 4004, How. Stat.), entitled “an Act to authorize the formation of corporations for mining, smelting or manufacturing iron, copper, mineral, coal, silver or other ores or minerals, and for other manufacturing purposes,” must state distinctly and definitely the purpose for which the same is formed, and if they fail to state a purpose for which the statute authorizes a corporation to be formed it will not be legally incorporated, and its articles will not warrant the exercise of corporate action. If such a purpose is stated, and the other statutory requirements are complied with, a legal corporation is created with authority to act as such. In •either case the purpose and intent must be ascertained solely from the articles and can not be aided, varied or contradicted by testimony or averments, aliunde the instrument itself. •</p> <p>3. The articles of association of a corporation claiming to be organized under said act, declared that “thepurpose for which said association was formed was to put up, pack and manufacture for market, Detroit river and lake ice and to distribute and sell the same.” Held, that they expressed a purpose such as the statute authorized the formation of corporations to carry on. That it was unnecessary for the articles to state the means or methods of manufacture, nor is the court to presume that the undertaking would be incapable of accomplishment.</p> <p>3, Section 8635, How. Stat., under which the information in this case is filed, only applies to cases where it is claimed that a number of persons assume to act as a corporation, within this State, without legally being incorporated, and such an information may be filed without leave of court.</p> <p>Sections 8646, 8647, How. Stat., authorize the filing of an information by leave of the court in cases where it is claimed that a business is being carried on under the guise of a legal corporate existence, for the purpose of manufacturing, not authorized by the articles of association; but this proceeding not being under these sections, the question whether the respondent is exercising any franchise or privilege not conferred by law calls for no discussion.</p> <p>4. The business of preparing ice in its natural condition for use as an article of consumption, in the manner described in the replication to the first plea in this case, is comprehended in the statute authorizing the formation of corporations for manufacturing purposes.</p>

Error from Barry. (Hooker, J.) Action on the case for denial of alleged right to vote. Judgment for defendants. Plaintiff brings error.

(Jennison, J.) Judgment for defendant. Plaintiff brings error. Action on the case for negligent killing of plaintiff’s son by defendant. The facts are sufficiently stated in the opinion.

<p>Error to Oass. (Smith, J.)</p> <p>Judgment for defendant. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Macomb. (Stevens, J.)</p> <p>Ejectment. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Arenac. (Green, J.)</p> <p>“Attachment under “log lien law.” Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

(Speed, J.) Assumpsit. Defendants Heineman and the Biatzels bring error.

<p>Error to Wayne. (Jennison, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Wayne. (Jeunison, J.)</p> <p>Replevin. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Attachment suit — Defective hand — Amendment of officer's return — Justice’s return to special appeal.</p> <p>1. The statute permits a new bond to be given in attachment suits, where the one filed is found to be defective: Secs. 7770-1 How. Stat.</p> <p>2 A justice of the peace has power under the statute of amendments, to permit an officer 1o amend his return to a writ of attachment, by showing when it was in fact made, and the writ and return filed with the justice. In a case where the defendant cannot be found, and only appears by an attorney, specially, to object to the jurisdiction of the court, notice of a motion to so amend cannot be given. An attorney so appearing is not entitled to such notice.</p> <p>8. On special appeal from justice’s'court, the return of the justice upon all questions properly raised by the appeal, must be taken as true.</p>

<p>Costs — Recovery of.</p> <p>The second subdivision of sec. 8964, How. Stat., giving costs to a plaintiff in an action where the right to overflow or do any other injury to land, is put in issue by the pleadings, applies to the facts in this case, as stated in the opinion.</p>

<p>Error to Mecosta. (Fuller; J.)</p> <p>Replevin. Plain tiff brings error.</p>

<p>Error to Muskegon. (Russell, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Agency — Fixed compensation excludes opinions of witnesses as to proper commission — Becla/ration—Statute of frauds — Revocation of agency.</p> <p>1. Where the fact of an alleged agency is in dispute and the testimony on both sides shows that if such relation existed, the agent’s compensation was a fixed sum, and the agency limited to the sale of specified property, the opinions of witnesses as to what commission and compensation would be proper, in such a case, to allow a land broker, are irrelevant, and as such testimony showed that the price the agent claims he was to receive was very much in excess of any usual commission, such price must be based on an express contract for the breach of which damages could not be recovered under the common counts.</p> <p>2. An agreement to pay compensation to an agent for the sale of personal property, graduated by the price obtained from a third person, on such sale, is not an agreement for the sale of chattels and need not be in writing.</p> <p>8. Such an employment could be revoked and the revocation could not be complained of, unless colorable and unfair, and unless the new bargain made by the principal came within the same substantial terms which would have entitled the agent to compensation under the old agreement. Even then the remedy would not be on a quantum meruit for services, whatever it might be as to expenditures made in the service.</p>

<p>Error to Mecosta. (Fuller, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Newaygo. (Fuller, J.)</p> <p>Trover for value of pine saw logs. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Kent. (Montgomery, J.)</p> <p>Bill to enjoin statutory foreclosure of mortgage. Defendants appeal.</p>

Mandamus. Relator applied for a writ of mandamus to compel respondent, one of the circuit judges of Wayne county, to vacate an order made in the chancery court restraining relator from trying an attachment suit, pending in the Superior Court of Detroit, in favor of an alleged creditor of relators, and commenced prior to relators’ assignment of its property, for the benefit of its creditors, under the statute. The facts are sufficiently stated in the opinion.

<p>Error to Genesee. (Newton, J.)</p> <p>Trespass. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p> Fraudulent mortgages. </p> <p>On an examination of the testimony the Court held the mortgage fraudulent and reversed the decree of the Superior Court.</p>

<p>Error to Macomb. (Stevens, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Manistee. (Judkins, J.)</p> <p>Bill to redeem pledge.</p> <p>Complainant appeals.</p>

<p>Order of publication — Appearance of defendant — Opening deceive — Petition for same, should be accompanied by proposed answer — Laches.</p> <p>1. The publication of an order for the appearance of a non-resident defendant, is rendered unnecessary by his appearance, by solicitoi, after the order is granted.</p> <p>2. A pro-confesso decree will not be set aside for a confessed, technical irregularity in the prior.proceedings, unless the application is made at the first opportunity.</p> <p>3. A defendant cannot claim a re-opening of such a case as a matter of right, when he files his petition long after the time for an appeal has expired, without exhibiting his proposed answer or offering any excuse for such delay.</p>

<p>Common counts,recovery for part performance of special contract may be had under — Defendant may recoup damages for non-performance — When contract price, measure of value — Evidence—If letters a/re . received on examination-in-chief, answers should be admitted on cross-examination— When contents of letter may be shown — Irrelevant testimony —Charge to jury.</p> <p>1. Where a plaintiff has delivered a portion of the articles agreed to be furnished to a defendant, under a written contract, at a price specified therein, and makes default in its further performance, he may recover the value of the articles so delivered, under a common-count declaration, subject to recoupment by defendant of the damages sustained by reason of such non-performance.</p> <p><3. In such a case, proof of the contract, and delivery of the articles charged for, makes plaintiffs’ case, and the contract price of the articles so delivered must be regarded as their value, until the contrary appears.</p> <p>5. Where letters, constituting part of a contract made between the parties to a suit, are introduced in evidence on the examination-in-chief of one of the plaintiffs, it is error to reject the answers to said letters, offered by defendant on the cross-examination of such witness. The proper order of proofs requires the admission of said answers when so offered, and the defendant should not he compelled to introduce them at a time when, under the rules, he must make the witness his own, and thereby be precluded from questioning any facts contained in such testimony, if untrue.</p> <p>4. Mere proof of the writing of a letter, the receipt of which is denied by the parties to whom written, is insufficient to allow parol testimony of its contents to he given.</p> <p>6. Under the contract in this case [see opinion] proof of how long the season lasted for making cutters in 1884 was inadmissible, it appearing that the contract was to he completed during that year without any other qualification as to time of delivery of cutter woods.</p> <p>6. Testimony showing the kind and character of cutter woods sold to other parties than defendant in 1884, also the manner of doing business prior to making said contract, between plaintiffs and defendant, was irrelevant and immaterial. The rights and duties of the parties in relation to the cutter woods in suit, were governed by said contract, and the testimony as to workmanship and material should have1 been confined to those specific articles.</p> <p>7. Where a written contract consists of the correspondence between the parties, which is undisputed, the trial court should instruct the jury what such contract contains, and give them its legal construction and allow the jury to apply the law, as thus given, to the facts in the case.</p> <p>8. The second and fourth requests of defendant’s counsel should have-been given to the jury. [See opinion for requests.]</p>

<p>Appeal from Menominee. (Grant, J.)</p>

<p>City charter — Power of common council to contract debts or incur liabilities —Contract construed, and held to fall within the prohibitions of charter, and therefore void — Being void, no recovery ■ can be had for what has been furnished the city under it.</p> <p>1. Where a city charter prohibits the common, council from contracting debts or incurring liabilities exceeding in any one year the revenue for such year, unless authorized by a majority vote of the electors of the city, a contract made by the common council, without such vote, for the use of at least fifty water hydrants, per year, at fifty dollars each, for a term of thirty years, creates a liability against the city to the full extent of the thirty years’ rental, which aggregate liability being in excess of the revenue authorized to be raised in any one year, the contract falls within the language, as well as within the mischief of the prohibition, and is void.</p> <p>2. A city council is only an agency to represent the people of the municipality, and the Legislature having given them what is deemed ample power to raise money, year by year, for the needs of each year, and no more, if they desire to make larger outlays, or to burden the future revenues of the city, it is left to the parties more directly interested to determine how far this shall be done.</p> <p>3. The contract being void, there can be no recovery for what has been furnished under it.</p>

<p>Error to Muskegon. (Bussell, J.)</p> <p>Trover. Defendant brings error.</p> <p>The facts are stated in the opinions.</p>

<p>Appeal from Berrien. (Blackman, J.)</p> <p>Complainant appeals.</p>

<p>Appeal from Newaygo. (Fuller, J.)</p> <p>Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Mecosta. (Fuller, J.)</p> <p>Case. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Action for work and labor, under section 7S17 How. Stat. — Declaration must show residence of plaintiffs in county where suit is brought.</p> <p>In a case brought under sec. 7317 How. Stat. the declaration sufficiently averred the performance of the work and labor sued for, in the county where the suit was commenced, but failed to show that plaintiffs resided in said county. The defendant did not appear.</p> <p>Held, that the defect was jurisdictional and the judgment rendered in said suit, void.</p>

<p>Partnership, as to third parties — Profit sharing.</p> <p>Ill the absence of a partnership in fact, merely sharing in profits does not create one as to third parties who have not been legitimately led to believe that such relation existed: Beecher v. Bush, 45 Mich. 188.</p>

<p>fflvidence — Contrary statements made by witness — Pa/rol proof of contents of lost paper.</p> <p>1. In a suit for work and labor, where the tendency of the testimony of a witness for the defense is to show that the services rendered were worth less than the price claimed therefor, it is competent to show that the witness has made statements tending to show otherwise.</p> <p>2. Where the loss of a petition for the appointment of a guardian was sufficiently proved, evidence of its contents was properly admitted.</p>

<p>Certiorari to city of Saginaw.</p> <p>Proceedings quashed. The facts are stated in the opinion.</p>

<p>Appeal from Van Burén. (Mills, J.)</p>

<p>Error to Superior Court of Detroit. (Chipman, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Wayne. (Speed, J.)</p> <p>Appeal from award of commissioners. Administrator brings error.</p>

<p>Appeal from Oceana. (Russell, J.)</p>

<p>Error to Kent. (Montgomery, J.}</p> <p>Summary proceedings to recover possession of lands. Defendant brings error.</p>

<p> Failure of title to land sought to be subjected to lien of purchase money mortgage. If title afterwards validated, mortgagor cannot collect interest during interim, on mortgage. </p> <p>1. Where, at date oí the execution of a purchase money mortgage, the mortgagee had no title to the land which he assumed to convey to the mortgagor, which land was then wild and uncultivated, but some years afterwards, by act of the Legislature, such pretended title was validated and held to be effectual from the date of the patent issued thereunder.</p> <p>Held, in a suit brought to subject said land to the lien of said mortgage, that interest could only be collected thereon from the date of said patent; it appearing that if the use of the land was of any value to the mortgagor from date of original purchase to that of the patent, it was because of improvements made by him thereon.</p> <p>2. A complainant asking the aid of equity should be required to do equity.</p>

<p>Certiorari.</p> <p>Proceedings quashed.</p>

(Chipman, J.) Case. Defendant brings error. The facts are stated in the opinions and points made in brief of defendant’s counsel, and in 55 Mich. 57.

<p>Error to the Superior Court of Detroit. (Chipman, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Negligence — Over-driving, want of care, and improper treatment of a livery team — Evidence. .</p> <p>1. In a suit for damages for the alleged negligence of defendant in over-driving, and for improper treatment, and want of care, of a span of horses let to him, the testimony tended to show that on the return of the team and huggy both were covered with frozen mud, of which large quantities had been thrown on the top of the huggy. In answer to the question, “ if the horses were driven at an average gait, whether or not the mud would fly on the top of the carriage,” plaintiff was allowed to answer, under objection that the proposed testimony was irrelevant and immaterial, that, “in ordinary going, mud woo’t fly on top of a carriage top.”</p> <p>Held,, that the testimony was relevant as tending to show the rato of speed at which the team had been driven.</p> <p>2. The remaining questions passed upon are so intimately connected with the facts in the case, as detailed in the opinion, that to specify same would he to give a synopsis of the opinion, to which reference is had.</p>

(Mills, J.) Ejectment. Defendant brings error. The facts are stated in the opinion and in the same case as reported in SI Mich. 360.

<p>Assignment for benefit of creditors — Not a bar to action by creditor — Does not prevent the running of the statute of limitations — Assignee has no authority to renew or revive the undischarged portion of a debt, by a partial payment thereo7i — Nor can he bind the assignor by an exp7-ess or implied promise of payment — Circuit Judge, on finding facts, is to di'aw all necessai'y infe7-ences from the evidence — Appellate court cannot dram inferences from facts found.</p> <p>1. The execution of a common law assignment, for the benefit of credit ors, is not a bar to an action by a creditor against the assignor, nor does such assignment operate to prevent the running of the statute of limitations.</p> <p>2. A partial payment by such assignee, upon a debt due from the assignor, which shows upon its face that it is to be applied as a final dividend upon the claim, will not have the effect to save the demand from the operation of the statute of limitations.</p> <p>8. It is the duty of an assignee to pay and discharge the debts of his assignor, so far as he is enabled to do so from the assets, and he has no authority, in virtue of his trust, to renew, revive, or continue in force the undischarged portion thereof, or to bind his assignor by either an express or implied promise of payment.</p> <p>4. When the facts are found by the circuit judge, it is his province to draw all necessary inferences from the evidence, and the appellate court is not at liberty to draw any inference from the facts so found. The fact of a part payment of a debt is merely evidence of a promise to pay the balance, and the inference that such promise was made, or intended, must be found, as a fact, by the jury or the court before whom the trial is had.</p>

(Newton, J.) Defendant sued plaintiff and recovered judgment before a justice of the peace, which was removed, by plaintiff, by certiorari to the Livingston county circuit court where it was reversed. Defendant in certiorari brings error, and judgment of circuit court is reversed and one entered in her favor. The facts are stated in the opinion.

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

<p>Appeal from Bay, (Green, J.)</p> <p>Bill to construe will. Defendant Townsend alone appeals.</p>

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

<p>Laying out highways — Commissioner must meet at place specified in notice to land owner or proceedings will be void.</p> <p>The failure of a Highway Commissioner to meet at the place appointed in his notice to a land owner, to view his premises and ascertain and determine the necessity of laying out a highway, ousts him of jurisdiction of the proceedings. So, field, where the notice designated the dwelling-house, as the place of meeting, and the Commissioner went to the barn, on the same premises, the land owner not being present or assenting to the proceedings taken.</p>

<p>Error to Chippewa. (Steere, J.)</p> <p>The facts and nature of the case are fully stated in the opinions.</p>

<p>Error to Kalamazoo. (Mills, J.)</p> <p>Ejectment. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Newspaper libel — Publisher must defend on same legal ground as private individual — Publication, falsely imputing a crime to a candidate for office, not pi'ivileged, but actionable per se — Law imputes malice— Mitigation of damages — Good Jaith — Dm investigation.</p> <p>!l. The publisher of a newspaper possesses no immunity from liability in publishing a libel, other or different from any other person. The law makes no distinction between him and any private person who may publish an article in a newspaper or other printed form, and if either abuses the right to publish his sentiments on any subject and upon any occasion, he must defend himself upon the same legal ground.</p> <p>2. A publication, in a newspaper, concerning a public officer or a candi- • date for an elective office, which falsely imputes to him 'a crime, is not privileged by the occasion, either absolutely or qualifiedly, but is actionable, per se, the law imputing malice to the publisher or author.</p> <p>3. If the charges are made in an honest belief of their truth, after reasonable and proper investigation, such fact would go to mitigate the damages, and under certain circumstances — such as are alluded to in Bailey v. Kalamazoo Publishing Co. 40 Mich. 251-7 — the jury would be warranted in reducing the damages to a minimum.</p> <p>4. The reasonableness of such investigation is for the jury, under all the circumstances, from which they must decide whether the publication was made in good faith, and with an honest purpose to enlighten the public upon the character and fitness of the candidate for the position he sought.</p>

<p>Correcting voluntary deed — In passing upon particular equity between husband and wife, general equities and dealings will be considered.</p> <p>1. A voluntary deed cannot be corrected without the consent of all the parties to it.</p> <p>2. It is not the business of a court of equity to burden itself with the hunting out of some particular equity between a husband and wife, whose conduct, on either side, does not show such a case, on the whole, as to warrant equitable interference, for either, in their financial dealings or transactions.</p>

<p>Partnership — Dissolution and accounting — Agreement of one partner to pay balance found due his co-partner — Statute of Limitations — Second accounting after si<a years, and payments on balance found due— Sufficient to keep the old claim aline and make it a legal < foundation for new accounting — Promise in writing not required.</p> <p>On the dissolution of a partnership between plaintiff and defendant an accounting was had, and defendant promised to pay plaintiff the balance his due, with interest. After more than six years, the parties figured up the amount due, with interest, and on this new principal payments were made by defendant, exceeding the original principal and leaving several hundred dollars still due. In a suit brought by plaintiff to recover this balance, to which defendant pleaded the statute of limitations,</p> <p>Held, that the second settlement, after the expiration of the statutory six years, and payments made on the new balance found due, were suflicient to keep the old claim alive so as to make it a legal foundation for the new settlement of account.</p> <p>Held, further, that a written promise of payment was not required, the statute expressly providing that it “ shall not alter, take away or lessen the effect of a payment of any principal or interest made by any person.”</p>

(Smith, J.) Complainant filed a. bill to foreclose a mortgage, which was dismissed on the hearing, which decree was affirmed on appeal. The facts are stated in the opinion.

<p>Contract — Construction of — Facts and circumstances attending its making to be considered — If executory, and ambiguous in its terms, the construction placed upon it by the parties is entitled to great weight — Impossibility of performance— Wa/rranty.</p> <p>1. “ The facts and circumstances attending the making of a contract, are indispensable to its correct construction or interpretation; and if executory, and its terms uncertain or ambiguous, the manner in which the parties have treated it, in carrying it into effect, is entitled to great weight as affording á practical construction which they have placed upon its intent and meaning.”</p> <p>2. “Where no express or implied provision, as to the event of impossibility of performance, can be found in the terms or circumstances of an agreement, it is a general rule of construction, founded on the absolute and unqualified terms of the promise, that the promisor remains responsible for damages, notwithstanding the supervening impossibility.”</p> <p>3. “ It is also a rule of construction, that every word and sentence shall be given effect, where it is possible to do so without destroying the manifest intent of the parties.”</p> <p>4. “ While no particular form of words is required to constitute a warranty, nor is it necessary that the word “warrant” should be used to make such a contract, still it is necessary that such expressions should be used as show the intention of the party to bind himself in a given direction.”</p> <p>5. Applying above rules to the contract'in this case, and the facts and circumstances attending its making, as detailed in the opinion,</p> <p>Held, that the provision in the contract, relating to the sale of the “joists, scantling, small timber and shipping culls,” is entirely independent of the prior clause providing for the sale of “ uppers ” and “common”; that it is a sale of the coarser grades of lumber, manufactured from the same logs from which the “uppers” and “common ” lumber were agreed to be cut, but formed no part of the 2,000,000 feet mentioned in said prior clause.</p> <p>Held, further, that the amount of such higher grades of lumber which defendant contracted to deliver, was measured by the amount which could be cut from “logs then in the pond and from section thirteen,” and that the designation of the quantity of 2,000,000 feet, was a mere statement of opinion and not a warranty.</p>

<p>Appeal from Clinton. (Smith, J.)</p> <p>Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Wayne. (Jennison, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>'The facts are stated in the opinion.</p>

<p>Error to Huron. (Wixson, J.)</p> <p>Assumpsit. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Muskegon. (Bussell, J.)</p> <p>The facts are stated in the opinion.</p>

Mandamus. On August 12, 1885, indictments were presented to the Wayne County Circuit Court, by a grand jury, against two of the aldermen of the city of Detroit, for accepting and soliciting bribes in violation of sections 9211 and 9212, How. Stat.

<p>Certiorari.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Alpena. (Emeriek, J.)</p> <p>Information for larceny. Convicted.</p> <p>The facts are stated in the opinion.</p> <p>The respondent was informed against for the larceny of seventy-six dollars, in money, and the bill of exceptions contains the following statement:</p> <p>“During the argument of Mr. Dafoe (the Prosecuting Attorney), the following occurred:</p> <p>Me. Sleator. — I object to the prosecutor’s statement in •-■relation to the assault upon Waltonbury, and also to his statement, some time ago, that he knew that the defendant was the man who took the money, and I take an exception.</p> <p>The Court. — This remark of the prosecutor about the assault upon Waltonbury being an outrageous one, is entirely unwarranted by the evidence.</p> <p>Mr. Sleator. — May I ask the court to allow the stenographer to take the remark down ‘ that he knew the defendant was guilty or the man that took the money.’</p> <p>The Court. — He may take it down.”</p>

<p>Error to Marquette. (Grant, J.)</p> <p>Information for robbery.</p> <p>The facts are stated in the opinion.</p>

<p>Saloons — Open on legal holiday — Statute construed — Discretion of court in imposing sentence, should always be exercised.</p> <p>1. The rule, as laid down by the Supreme Court of Michigan, is, that, “the person who engages in the business of carrying on a liquor saloon must, at his peril, see that no necessity exists for keeping the same open [on days prohibited by the statute] by carrying on any other business therein which would require the doors to be open, or for persons to enter therein People v. Waldvogel, 49 Mich. 337; People v. Blake, 52 Mich. 566; People v. Roby, Ib. 577.</p> <p>3. It was therefore error for the court to instruct the jury, on the trial of a respondent charged with keeping his saloon open on the fourth day of July, that, if they found that “the saloon was opened for any purpose whatever ” they should convict. The construction given to the rule was too broad aud would prevent the keeper from entering or leaving the saloon for any purpose, and this was not intended.</p> <p>3. How. Stat. § 96031 vests a discretion in the court to fine or imprison a respondent under section 33752 How. Stat., and the court should always exercise its discretion in sentencing respondents.</p>

<p>Error to Genesee. (Newton, J.)</p> <p>Arson. Respondent brings error.</p>

<p>Larceny — Evidence to establish — Apparent means of livelihood, — Negativo testimony.</p> <p>Respondent was convicted of the larceny of $25 in a saloon, and on the trial the keeper of the saloon, a witness for the people, was asked “ whether respondent, at time of the larceny, had any apparent means of livelihood ” and answered that “ he could not swear that he did not have any.” The bartender, who was also a witness, in answer to the question “ of what he knew about respondent’s having money on the day before the larceny ” answered, “ I could not swear that he did not have any.” Both witnesses were acquainted with the respondent who was no stranger to the saloon.</p> <p>Held, that the answers could have done no harm, but that the court is not prepared to say that the questions were improper.</p> <p>That while ignorance of means does not prove they do not exist, yet appearances are usually of some value in determining whether a person has any honest means of support. That the statute, like the common law, includes among disorderly persons those who have no visible calling or means of support, and while something more may be necessary to convict them, so long as they behave themselves, yet the use of the word “visible” indicates that appearances must to vsome extent be relied on, and that “ apparent ” and “ visible ” are words of similar meaning.</p>

Clair. (Stevens, J.) The people sued out a writ of error to review the order of a circuit judge discharging an escaped prisoner from the House of Correction and Reformatory at Ionia, who had been re-arrested for the purpose of being returned to the prison to serve out his un expired sentence. The facts are stated in the opinion.

(Mills, J.) The people bring error to review the order of the circuit judge discharging a prisoner in habeas corpus proceedings. The facts are stated in the opinion.

(Mills, J.) Respondent was convicted of failing to keep his saloon closed, after nine o’clock at night, and brought error. The facts are stated in the opinion.

<p>Saloon open on Sunday — Olerk of police court cannot take complaint or issue warrant.</p> <p>1. The clerk of the police court of Grand Rapids, has no power to take a complaint and issue a warrant for keeping a saloon open on Sunday nor can such power be conferred upon that officer by statute.</p> <p>2. Such a prosecution cpuld only be had in some court of competent jurisdiction, authorized by the Constitution, and the taking of the complaint, examination of witnesses and determination therefrom whether or not the offense charged has been committed, preliminary to issuing a warrant, involve judicial action, which can only he taken by such court.</p>

<p>Burglary — Breaking and entering in the night time — When so charged, becomes a necessary element of the crime, to be proved in order to convict —Failure of court toso instruct the jury, error — Larceny from the building, when must be proved — Treatment of witnesses by counsel on trial — Failure to lay before the jury some of the important elements of the crime, fatal to conviction.</p> <p>1. In a case of statutory burglary, where the breaking and entering is charged to have been committed in the night time, such averment became a necessary element of the crime charged without proof of which there could be no conviction, and the failure of the court to so instruct the jury, was a fatal omission.</p> <p>2. Where, in such a case, there was no proof connecting respondent with the breaking and entering, but she was sought to be convicted by proof of having in her possession a portion of the goods charged to have” been stolen from the building broken into, the court should have instructed the jury that in order to convict, they must find that the larceny charged was committed.</p> <p>8. The use of improper and insulting language, to and about witnesses by the counsel on[the trial of a criminal case, is a serious abuse which cannot be tolerated.</p> <p>4. Where, upon the whole record, it is apparent that a criminal case has not been laid before the jury so as to bring out some of the important elements of the crime charged, for consideration, the conviction will be reversed.</p>

<p>Informations in nature of qtw warranto.</p> <p>The facts are stated in the opinions.</p>

<p> Damages for vexatious appeal. </p> <p>Damages, as for vexatious appeal, were awarded on affirmance of a judgment wliere the amount involved was small and theonly substantial points of law in question had already been disposed of on a previous hearing.</p>

<p>Replevin — Fraud—Evidence.</p> <p>The judgment in this case was affirmed, the errors assigned being held trivial and without merit.</p>

<p>Replevin — Bill of sale as security — Demand of possession or payment of debt necessary before bringing suit.</p> <p>Where a bill of sale has been executed as security for existing indebtedness, and to secure future advances and filed in the town clerk’s office, replevin will not lie by the owner of the property, without demand or payment of the debt.</p>

<p>Appeal from St. Joseph. (Pealer, J.)</p> <p>Bill filed to construe a lease. Complainants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Divorce — Habitual drunkenness — Cruelty—Alimony.</p> <p>1. The facts, even if true, that a wife is shown by the testimony not to be of the most refined character and that she has not always been truly iady-like in her behavior, but at times when in anger has been guilty of profanity, and has not remonstrated with her husband as she ought, or rebuked him for using liquor to excess, furnish no adequate excuse for the abuse which he is shown to have heaped upon her in his drunken moods, -which have been too frequent not to be habitual.</p> <p>2. The fact lhat the husband is a good farmer, and kind, when sober, to his family, will not weigh in the scale to balance the admitted fact that he is the opposite when under the influence of liquor, especially when such influence grows stronger day by day.</p> <p>8. Where the testimony shows a defendant to be worth from $10,000 to $15,000, which his wife has helped to accumulate, she having lived a frugal, abstemious life and by her industry and economy saved his earnings; that he has given several thousands of dollars to his children who are all grown up and married, except a daughter aged sixteen years, who is living with her mother, and he admits receiving $600 from his wife soon after their marriage,</p> <p>Held, that the sum of $4,500 awarded to her as permanent alimony was not excessive.</p>

Mandamus to Judge of Superior Court of Detroit to vacate an order, remanding a case to the circuit court of Wayne county. The facts are stated in the opinion.

<p>Error to Kalamazoo. (Mills, J.)</p> <p>Case. The defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Certiorari — Affidavits of third persons no part of return — Prolate court— Jurisdiction to appoint guardians for incompetent persons derived from statute — Petition must le filed in county wheo'e alleged incompetent resides — Written notice must be personally served on such person, and given under order of probate judge — Decree adjudicating incompetency, etc., essential and it should be recorded — Notice, under section 17How. Stat., must be given to relative of poor person sought to be charged with his support.</p> <p>1. Affidavits of third parties, in answer to facts set up in petition for certiorari, cannot be received as a part of the return.</p> <p>2. The probate court derives its jurisdiction to appoint guardians for insane and incompetent persons, entirely from the statutes [How. Slat. §§ 6314, 6315], the provisions of which must be strictly pursued.</p> <p>3. The petition for such appointment can only be filed in the county where the alleged incompetent person resides, and no hearing can be had, or appointment made, except on at least fourteen days’ notice, in writing, to such person of the time and place of such hearing, which notice must be personally served, and this is absolutely essential to give the court jurisdiction.</p> <p>4. It is not enough that such person may have learned of the pendency of the proceeding. The notice must be given under the order of the judge of probate, and in writing.</p> <p>5. A mentally incompetent person cannot consent to any legal proceedings so as to waive any of his legal rights relating thereto; and, if competent, the probate court has no power to appoint a guardian for him or his estate, even if all his relatives and friends should so request, and he desire and consent to such appointment.</p> <p>;6. A decree by the probate court, adjudging an alleged incompetent person to be mentally incompetent to take care of himself and manage his property, is essential, and such adjudication should appear of record.</p> <p>7. Notice to the relative of a poor person, sought to be charged with his support under How. Stat. § 1743, is essential to confer jurisdiction on the circuit court of the proper county to make any order in the premises.</p>