Volume 6 — Michigan Reports

<p>The declarations of a person since deceased, can not "be made evidence on "behalf of his representatives, any more than on his own "behalf while living, for the purpose of showing what were the torms of a parol contract made by him for tho conveyance of lands, and which is sought to be enforced against such representatives.</p> <p>On a bill for the specific performance of a parol contract for the conveyance of lands, the contract must be proved in the clearest manner, and must be substantially the samo set forth in the hill.</p> <p>Accordingly where wife and husband filed their bill on behalf of the wife, alleging a parol agreement on the part of the devisor of defendant to convey certain lands to the wife, and asking its specific performance, but, from the testimony, it appeared that tho agreement was to convey to the husband; — Meld, That the bill must be dismissed, notwithstanding there was evidence in the case that tho husband after-wards directed the conveyance to be made to the wife, and the other party assented to its being so made.</p>

The bill was filed in the court below to redeem certain premises in the city of Detroit from a mortgage.

<p>The Supreme Court has jurisdiction of errors of fact as well as errors of law.</p> <p>The Constitution, in granting to the Supreme Court the power to issue writs of error, and to hear and determine the same, impliedly gives all the common law means of executing that power. If necessary, a venire may be issued for a jury to try in this court the issue joined on assignment of error of fact, or it may be sent to the. proper circuit for trial.</p> <p>The circuit courts have no power, in any case, to issue writs of error.</p> <p>Errors of fact may be assigned in the Supreme Court on the common writ of error.</p> <p>Uncertainty and informality in the assignment of errors are no ground for quashing the. assignment, or for dismissing the writ.</p>

<p>Where labor was performed under a contract with the city of Detroit before tho Revised Charter of 1851 was adopted, and the Common Council, after the Revised Charter took effect, passed a resolution for tho settlement of the contractor’s claim therefor, such resolution does not require the mayor’s approval.</p> <p>Under tho charter of Detroit, claims for the construction of a sewer aro to be paid only from a fund, specially voted and raised for that purpose. While a claim against a sewer fund (which tho city disputes) is pending and unadjusted, tho rights of the claimant can not be affected by a transfer to the sinking fund of the balance standing to the credit of such sewer fund.</p> <p>Whore a claim for extra work and alterations was made against the city of Detroit, by a contractor for the construction of sewers, and suit was brought for the recovery thereof, and the Common Council directed the Oity Attorney to permit judgment to pass therefor, which he did, and there could bo no serious doubt of the legality of the larger portion of the demand, and the question as to the remainder was, at most, one of doubtful construction of the agreement under which the work was done, and the action of the Council appeared to have been taken in good faith; — Held, That there was no just ground for the interference of a court of equity, in behalf of a tax payer, to restrain the collection of the judgment</p> <p>If courts of equity have jurisdiction to interfere, by injunction, to restrain the action of a municipal corporation, on a bill filed by a tax payer on behalf of himself and other tax payers, the circumstances to authorize such interference must be such as to show that the proposed action will be inequitable, and injurious to the public interest.</p>

Tbe action below was for the non-performance, by defendants in error, of an agreement in writing, made August 1st, 1855, of which the following are the material portions: “ Memorandum of Agreement between George Lord & Co., of the first part, and II.

<p>Error to Washtenaw Circuit.</p>

<p>Where one of several assignees of a mortgage dies, his interest in the mortgage, and in the mortgage debt, survives to the others, and his personal representative is not a necessary party to a bill for the foreclosure of the mortgage.</p> <p>One holding the equitable title, 'only, to a mortgage, may foreclose it in chancery.</p> <p>The assignment of a debt secured by mortgage, carries with it, in equity, the mortgage as an incident to the debt, and the assignee may proceed in equity to foreclose it.</p> <p>Where one holding only the equitable title to a mortgage, files his bill to foreclose it, the person holding the legal title should bo made a party.</p> <p>An allegation in a bill for forclosure, by tbe assignee of a bond and mortgage, thafr tbe bond and mortgage were “duly sold, assigned, and set over by the said mort-. gagees” to complainants, and that complainants are “the owners and holders thereof, and entitled to have and receive all moneys due thereon, as by reference to an instrument of assignment under the corporate seal of the said corporation [mort-. gagees], and now in possession of complainants,” will appear — is an allegation of a legal assignment and transfer at law of all the rights of the mortgagees to, the complainants.</p> <p>Where complainant, in a foreclosure suit, dismissed his bill, as against one made a party under the general allegation that he claimed some interest in the premises, as subsequent incumbrancer, or otherwise, the mortgagor, appealing to this court from the decree in the case, can not complain of such dismissal, since it, in no respect, affects his rights.*</p> <p>An allegation in a foreclosure bill that no part of the mortgage debt has been collected or paid, when the bill sets out fully the mortgage, and shows the amount of tho several installments, and when they became due, sufficiently shows the amount due on tho mortgage.</p> <p>Where, after overruling a demurrer in a foreclosure suit, tho bill was taken as confessed by defendant, and the case referred to a commissioner to compute the amount due, tho case heard on tho commissioner’s report, and decree of foreclosure made without notice of hearing to the defendant, who had appeared, but all the other proceedings in the case were regular, and no exception was taken by the defendant to the commissioner’s report, and no application made to the-court below for relief; — 12eld. That the Supreme Court would not, on the ground of want of notice of hearing alone, reverse' the decree of the court below.</p>

Appeals by defendants from tbe Wayne Circuit in Chancery. The facts in the two cases being substantially the same, and the testimony identical, they were heard and ’’decided together.

Appeal by defendants Lucas Vogel and Merrill H. Shaw from the Wayne Circuit in Chancery, where decree of foreclosure and sale was made as prayed in the bill. The case is sufficiently stated in the opinion.

On the 6th day of March, 1857, Alfred Russell, as attorney for and on behalf of Emiliette Moyer, presented to the Probate Court for the county of Wayne a petition, of which the following is a copy: “County of Wayne, Probate Court: “To the Hon. E. Hawley, Jr. Judge of Probate of the county of Wayne: “ The petition of Emiliette Moyer, of said county, respectfully showeth: That your petitioner is sole surviving daughter, and sole heir-at-law, of William H. Robinson, late of…

Case reserved from Kalamazoo Circuit. The action was debt, brought upon the official bond of Rix, as sheriff of Kalamazoo county, for the use aud benefit of the President, Directors, and Company of the Michigan State Bank. Upon the trial, the following facts were agreed upon between tbe parties.

<p>Error to Lenawee Circuit.</p> <p>The case, so far as passed upon by the , court, is fully stated in the opinion.</p>

The action was replevin, brought by Snook against Robert W. Davis and Thomas Golby, for a quantity of merchandise. The defendants pleaded the general issue. On the trial, the taking of the goods by defendants was admitted.

Appeal by defendant Beckwith from the Wayne Circuit in Chancery.

<p>If the owner of land do such acts as show, unequivocally, an intent to dedicate liis land to the public for a highway, sucli dedication, if properly accepted, will make the land dedicated a public highway, without reference to any xiarticular period of time.</p> <p>In determining whether there lias been a dedication, all the acts of the owner bearing upon the question are to be considered together. One act may be explained or qualified by another.</p> <p>A dedication can not be made without an intent to dedicate, clearly manifested.</p> <p>It is essential to a dedication that it be accepted by the public. In the case of city streots, the acceptance should be manifested by some act of the authorities, either formally confirming the dedication and ordering their opening, or exercising authority over them in some of the ordinary ways of improvement or regulation.</p> <p>The adoption, by the Governor and Judges of the territory of Michigan, of the x>lan of the city of Detroit, in 180T, did not, of itself, malee public highway of that portion of the projected streets which was covered by private claims, and occupied as private property.</p> <p>The power of the Governor and Judges to convey lots in the town of Detroit, was not confined to a conveyance of lots in such forms and dimensions, as they should delineate them upon their xilan. Under the acts of Congress empowering them to adjust claims to lots therein, and give deeds for the same, the claims to be adjusted were such as any person might have, legal or equitable. "When satisfactory proof had been made, they had no right whatever to deprive a claimant of any portion of the land actually belonging to him under the acts of Congress, passed to protect ancient titles and settlements, whether it interfered with any projected plan or not. And no court has a right to go behind their conveyances, so long as they acted within the jurisdiction vested in them by Congross.</p> <p>The adoption by the Governor and Judges of the plan of Detroit was not intended by them to be a final and absolute act, which could not be reviewed or explained. It was liable to modification by interfering claims and reserves; and, when circumstances might render it necessary to adapt the j>lan to these contingencies, they had the power to do so.</p> <p>That portion of Shelby street between Jefferson Avenue and ‘Woodbridge street, as projected on the plan, being at the time of the adoption of the. plan claimed and occupied ns private property, and so continuing to be claimed and occupied thereafter; and the corporate authorities of Detroit having, many years after the adoption of the plan, under their authority to lay out streets through private property, caused a street to be opened along it, but of less width than the street as originally projected, paying the occupants of the land for the strip so taken; —Held, That this was a waiver of any rights of the corporate authorities, if any they had under the plan, to that portion of tho projected street outside the lines of the street so opened.</p>

Appeals from the decision of the Honorable Daniel Goodwin, District Judge of the Upper Peninsula- On the 20th day of June, a. d. 1857, Henry Selby presented his petition to said district judge, representing that he was equitably and legally entitled to the undivided one-half of lot six in section twenty-five within the limits of the town-site of Ontonagon, of which he was then in the actual occupancy and possession, as tenant in common with James K. Paul; that he acquired…

<p>A mortgage given by an infant feme covert, to socare the debt of her husband, is absolutely void, and not merely voidable.</p> <p>Whore an infant feme covert gave a mortgage to secure the payment of a note against her husband, and a bill in chancery was filed to foreclose it, and a guardian ad litem was appointed for the mortgagor in the forclosuro suit, who accepted the appointment, but neglected to answer, and was defaulted, and decree of foreclosure and sale made on such default, giving the infant no day in court after coming of age, and the infant did not come of age until after the time for appealing from the decree had oxpirod; — Held, That the decree, as against the mortgagor, was absolutely void, and sho might recover possession of the premises in ejectment against persons who derived title through the sale made under the decree.</p>

The bill alleges that complainant is the wife of Benjamin C. Durfee: That on the 14th day of November, 1855, said Benjamin was in partnership in the drug and grocery business, in Detroit, with one Edward J. Moore, under the firm and style of Moore & Durfee; that on that day Moore & Durfee were indebted to defendant as follows: $500 on a promissory note for that amount, dated August 15th, 1855, payable seven months from date, with ten per cent, interest; $500 on a note, dated…

Clair Circuit. The declaration was upon the common counts, with notice attached that, under the same, plaintiff would give in evidence, two certain promissory notes, both of which were payable at N. Reeve’s office in Detroit. On the trial, the notes being offered in evidence, defendants objected that evidence should be given that the notes had been presented for payment at the place specified, and payment demanded.

Hill commenced suit against Fessenden in the District Court of the Upper Peninsula, for the county of Houghton, by attachment. The affidavit for attachment, based upon the non-residence of a defendant, was made February 23d, 1857, and the writ issued thereon bore date two days thereafter.

Hale and Smith brought assumpsit against the Michigan Central Railroad Company, for the value of certain wheat delivered to the Company as common carriers, to be carried by them from Grass Lake to the city of Detroit. Upon the trial, the following facts appeared in evidence: In and prior to November, 1850, defendants (below) were common carriers, incorporated by an act of the Legislature of the State of Michigan, approved March 28th, 1846.

Clair Circuit. Replevin, brought by plaintiffs in error, for saw-logs, claimed by them under a purchase from the Black River Steam Mill Company. On the trial, the parties agreed in writing upon the facts in the case, and submitted the same to the court for its judgment.

<p>In preparing the case for the argument in this Court, on appeal from chancery, the counsel must exercise his own judgment and discretion as to whether he will print the whole evidence, or ftmit the formal, and what he may deem the unimportant, portions. And the Court on taxation of costs will not interfere with . the exercise of this discretion,- unless it clearly appears to have been abused.</p>

The defendants and one Charles Tully were indicted for the murder of Patrick Tully. The indictment contained two counts, charging the crime of murder as at the common law.

Clair Circuit. This was an action of assumpsit, brought by the defendants in error upon a subscription for stock, signed by Coe, in the name of the firm of Coe & Barnard.

Case from Genesee Circuit, filed in this Court by defendant as a case made and settled after judgment against him in the circuit court. The document filed indicated that the ■ circuit judge had disposed of the case upon an admission of facts in writing, by the respective counsel; which admission does not appear to have been signed.

The bill was filed for a divorce on the ground of adultery, ■ -alleged to have been committed by the wife. The answer denied the charge under oath. On the hearing, upon proofs, in ‘the court below, a decree was made in accordance with the prayer of the bill, from which defendant appealed. Temporary ■alimony had been granted, which ceased on entry of decree.

On exceptions from tbe Recorder’s Conrt of the city of Detroit. The prisoner was tried at the December term of said court, on an information for assault with intent to murder one McDonald. Several witnesses were examined, as well for the Government as for the prisoner, whose testimony established the following facts: The prisoner and McDonald are both sailors, and met for the first time on the dock, where then’ respective vessels were lying, on the night of the assault.

<p>In computing time on notices of hearing, the day on which the notice is served is to be excluded, and the first day of term included.</p> <p>An intervening Sunday is not to be excluded in such computation.</p>

<p>Where, after judgment in the circuit court, a party caused a case to be made and settled for review in this Court, but neglected for more than two years to cause the same to be certified to this Court by the clerk, — Held, That, by analogy to the statute limiting the time for bringing writs of error to two years, the case must be deemed to have been abandoned, and will be dismissed — at least unless the delay is sufficiently accounted for.</p>

Charles D. Gibson, William II. Mason, and Amasa Mason, brought replevin against Gray in the court below, for a quan-. tity of wheat. Gray pleaded the general issue, and gave no-, tice under that plea that the wheat was the property of one-Ells, and that he took the same as sheriff of the county of Wayne, by virtue of certain attachments issued to him against the property of Ells.

<p>Negotiable paper is not liable to be readied by garnishee process against the maker before maturity.</p> <p>A note payable to order, and without contingency, on a day certain, is not the less negotiable because purporting to bo according to the condition of a mortgage, when the terms of the mortgage correspond with those expressed in the note.</p>

<p>The Supreme Court lias no power to require an appellant in chancery to give a new or farther appeal bond, in addition to the one approved by the circuit court commissioner, and which is alleged to be insufficient.</p>

Wallace and Edwin W. Wallace, partners under the name of D. D. Wallace & Co. A copy of the assignment, which constitutes a part of the bill of exceptions, is given below.

The action was assumpsit, by Edivards against Sanborn, The declaration contained two counts, the first of which alleged that on July 21st, 1855, plaintiff bought of defendant a circular saw mill at the price of $435, to bo paid for as follows $233 in plaintiff’s note at six months from August 15th, 1855, with interest; $202 in cash, August 15th, 1855, which was paid when due; and in consideration thereof defendant promised to, ship the said saw mill from Sandy Hill, New…

<p>Where plaintiff, in his declaration in justice's court, claims damages beyond the jurisdiction 'of the court, but the defendant pleads to the merits, and, after trial and judgment against him, appeals to the county court, where the cause is again tried on the merits, he can not afterwards take advantage of the excessive claim on writ of error in this court.</p> <p>Where process in trespass was taken from a justice against three, but discontinuance entered as to one, and declaration against the others claimed damages beyond the jurisdiction of the court, but defendants joined issue upon it, and judgment was rendered by the justice against both, and one defendant appealed to the county court, where the others both appeared, and trial was had, and judgment again rendered on the merits against the two who wore convicted before the justice,— Held, That on error to this court, by the defendant who appealed, he could not object either to the judgment of the justice, or to the joining of the other defendants in the proceedings of the county court.</p>

Joseph Circuit in Chancery. The bill of complaint avers: That one Job Tyler, in 1841 or 1842, in consideration of love and affection, gave his son, De Witt C. Tyler, in fee, certain premises described therein: That pursuant to said gift, De Witt went into possession of the premises, and made large improvements thereon, and finally died in possession thereof in the year 1850, leaving the complainants his widow and heir - at-law: That Job Tyler is since deceased: That said Job…

The action was by Norris, the lessor, against Evans, the lessee, upon a lease of the Western Hotel, in Ypsilanti.

<p>When a treaty Las been made by tbe proper federal authority, and ratified, it becomes the law of tbe land, and no courts have tbe power to question, or in any manner look into, the powers or rights recognized by it in tbe nation or tribe with whom it was made.</p> <p>By a treaty made in 1807 between tbe United States and the Chippewa, Ottawa, Pottawatomie and "Wyandotte tribes of Indians, certain lands near Detroit, among others, were reserved to these tribes. The treaty did not show on its face what tribe was in tbe occupancy of these lands. By another treaty with the Potfcawatomics in 1827, these lands, therein stated to have been before “reserved to the use of the said tribe,” were ceded to the United States. — Held, That this treaty having recognized the right to this reserve to have been in the Pottawatomies, the courts are bound so to regard it, and must consider the treaty of 1827 as extinguishing the reserve.</p>

Plaintiff in error brought trespass in the court below, against defendants, for the taking and carrying away of certain household furniture and other personal property. On the trial, plaintiff proved the taking and carrying away of the property, in March, 1857, from the house occupied by him. He then proved its value, and rested his case.

, The action was against plaintiffs in error, upon two recognizances.

<p>Appeal by defendants from Kent Circuit in Chancery.</p>

Case reserved from St. Clair Circuit. The action was replevin.

The action was ejectment. With the plea of the general issue, the defendant filed the following notice: “Sir, Talte notice, That the defendant will give in evidence on the trial of this cause, that he has been in actual possession of the premises set forth and described in the plaintiff’s declaration, for six successive years (and more) before the commencement of this suit; claiming title by virtue of a sale made by the treasurer of the county of Branch, for the non-payment…

The Michigan Insurance Company filed their bill of ■complaint against Porter, Henry C., and Fanny Kibbee, Joseph Thompson, and Asa E. and Robert Hart, setting forth: That on the 9th day of June, a. d. 1851, Porter and II.

Appeal in Chancery from Oakland Circuit. Complainant in Ms bill set forth, that the defendants, together with eighty-nine other persons, some of whom are since dead, others removed from the state, and others unknown to complainant, in January, 1852, formed themselves into an association under the General Plank Road Act of 1851, to be known as the Novi and White Lake Plank Road Company, for the purpose of building a certain plank road, and entered into articles, which were…

<p>Where defendant, after plaintiff has closed his case, recalls one of plaintiff’s witnesses and proves by him facts which are material to the defense, and it does not appear that defendant has been surprised or induced to call the witness by statements he had previously made different from the facts to which he has testified, and he was not a witness the defendant was compelled to call, like the subscribing witness to an instrument, defendant has thereby made the witness his own, and it is error in the court to permit him afterwards to impeach such witness.</p> <p>A replication to a notice of special defense, under the old rules, was not necessary where the matters set out in the notice were admissible in evidence under the general issue.</p> <p>Where replevin was brought for the unlawful detention of property at Hampton, in Saginaw county, and defendants justified under attachments issued out of the circuit court for that county, — Held, That plaintiffs were not estopped by this issue from showing that the taking of the property under the attachments was at Hampton, in Bay county.</p> <p>The question of the organization of Bay county having, as before decided by this court, been submitted to a popular vote in the proposed coimty, and defendants claiming that the return of votes did not show the number cast within such limits, and that Bay county never in fact became organized, — Held, That the question of such organization was one of fact for the jury, and an offer of the plaintiffs to show that the attachments were levied in Bay county involved this question, and should have been allowed.</p>

Appeal in Chancery from Wayne Circuit. The bill was filed against Paul J. George, Sally George (his wife), and John George; and sets forth: That on September 1st, 1852, Paul J. George, being indebted to complanant in §1866.61, gave complainant therefor three promissory notes, due in four, six, and seven months from date: That on March 24th, 1853, complainant caused an attachment to be issued from the Circuit Court for the county of Wayne against the property of said Paul, on…

Case reserved from Calhoun Circuit. The action was ejectment for dower.

Defendants in error brought ejectment in the court below, claiming title in fee to the premises in question. On the trial (June 8th, 1858) before the court without a jury, they introduced in evidence a patent of the land from the United States to Reuben Abbott, a deed from Reuben to Samuel W. Abbott, dated February 25th, 1841, a chain of conveyances from the latter to themselves, and jjossession by defendant at the commencement -of suit;- and rested.

On exceptions from the Recorder’s Court of the city of Detroit, where the defendant was tried and convicted on an information charging him with obtaining by false pretences the endorsement of H. Norton Strong to a certain promissory note made by defendant.

Case made after judgment from Kent Circuit. Ejectment brought by plaintiffs, as heirs-at-law of Philip Coon, deceased.

The action was trespass by Rosenbury against Angelí, for breaking and entering the plaintiff’s storehouse in Howell, and taking, carrying away, and converting divers goods, the property of the plaintiff.

Questions reserved from the Wayne Circuit Court in Chancery, as follows: , '“2b the Supreme Court of the State of Michigan: “At the hearing before me, on the 17th day of February, a.d. 1859, of the above named causes (both being ordered to be heard together), the following facts were admitted or proved: “That one Lewis Ives, being the owner of certain lands known as the “Dry Dock property,” executed two mortgages thereon: (1) One to David Moore, for $5,000; (2) One to George…