Volume 60 — Michigan Reports

Mandamus. The facts are stated in the opinion. Kespondent excuses himself from enforcing the order made for the payment of costs, on the ground that the statutes providing for condemnation proceedings make no provision for such enforcement. Conceding this fact, yet the court lias power to enforce the order which the statute requires it to make. We have two general statutes giving courts of record power to enforce their orders: How.

(Stickney, J). Case. Defendants bring error. The facts are stated in the opinion. The statute sued upon was intended for the benefit of those” who suffer innocently, and its aid cannot be invoked by any person who sanctioned or authorized the sale or gift of liquor to, or purchased it for the person using same, and whose intoxication has occasioned the injury complained of: Kearney v. Fitzgerald, 43 Iowa, 584-5; Reget v. Bell, 77 Ill. 593.

Exceptions before judgment from Allegan. (Arnold, J.) Malicious trespass. Respondent was convicted. The statute contemplates that the trespass complained of should be malicious : 1 Bishop Crim.

Exceptions before judgment to Isabella. (Hart, J.) Larceny. Respondents were convicted. The facts are stated in the opinion. The People elected to proceed against defendants jointly; if tried separately, in the absence of proof of a conspiracy, statements of one defendant made in the,absence and out of hearing of the other could not be received in evidence: Wharton’s Crim. Ev. § 699 (8th ed.).

Exceptions before judgment from Clinton. (Smith, J.) Respondent was convicted of “having been intoxicated in an assemblage of people, etc.” The facts are stated in the opinion. “No law shall embracé more than one object, which shall be expressed in its title,” Const. Art. 4, § 20, and this provision is mandatory : Cooley’s Const. Lim. §§ 82,150.

(Ramsdell, J.) Assumpsit. Defendants bring error. Defendants first request should have been given to the jury, namely: “If you find from the evidence, that at the time the bargain was made the Northern Manufacturing Company was existing in fact, and doing business as a corporation; and that plaintiff recognized it as such; that the articles of association wore agreed to and signed before the bargain was made, which was made for and on behalf of the corporation, although the…

(Montgomery J.) The facts are stated in the opinion. The opinion of the circuit judge, as to facts, is taken as correct, unless it clearly appears to be erroneous: Griffin v. Nichols, S. & Co., 51 Mich. 575. It is not material that complainant’s wife did not occupy the house. “His homestead is where he lives himself:” Pardo v. Bittorf, 48 Mich. 275; Griffin v. Nichols, S. & Co., 51 Mich. 575.

The facts are stated in the opinion. If defendant Burton had deeded the land to complainant and her husband, the case would have been governed by the law of entireties: Fisher v. Provin, 25 Mich. 347; Ætna Ins. Co. v. Resh, 40 Mich. 241; Manwaring v. Powell, Id. 375, and in equity, a vendor under a land contract is a trustee of the land for the vendee: Wing v. McDowell, Walk. Ch. 175 ; Fitzhugh & Maxwell, 34 Mich. 138.

Mandamus. Delator applied, by petition, for a writ of mandamus to compel the respondent to hold the service of a declaration valid, and vacate his order quashing such service and dismissing the suit commenced thereby, in the Wayne circuit court. The facts, as set up in the petition and not denied by respondent, are as follows: The relator is a resident of Wayne county and had resided therein, continuously, for ten years prior to making the application.

Mandamus. The facts are stated in the opinion. The state is liable the same as any other corporation, or as an individual would be in a commercial transaction, for the negligence of its agents, engaged in authorized business: Cooke v. U. S., 91 U. S. 389, 398; Orleans v. Platt, 99 U. S. 676, 682 ; U. S. v. Bank of Metropolis, 15 Pet. 377.

Clair. (Stevens, J.) The defendant, Richardson, was the beneficiary named in the certificate issued by complainant to one Harry Travel*, deceased, who in his lifetime made an attempted transfer of the same, as stated in the opinion, to her co-defendant, Nairn, the validity of which the beneficiary, Richardson, denies. Complainant filed a bill of interpleader to settle these conflicting claims.

(Emerick, J.) Replevin. Defendant brings error. The facts arc stated in the opinion. The Oconto carried the boiler from Port Huron to Alpena, and on her arrival the captain had a lien for the freight and the right to retain possession of the boiler until the lien was discharged. A lien for freight cannot be lost except by payment or tender, or some act on the part of the party claiming the lien, wraiving such tender. The real issue is, was an actual tender dispensed with ?

(Fuller, J.) Replevin. Defendant brings error. The facts are stated in the opinion. Defendant had a lien on the lumber for his interest in its manufacture unless waived: Comstock v. McCracken, 53 Mich. 123 ; Wait’s Actions and Defences, vol. 3, p. 598, and the question of waiver is one of intent: Hibernia Ins. Co. v. O'Connor, 29 Mich. 241, and should have been submitted to the jury.

(Jennison, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion. Defendant is not liable for the claim sued upon, irrespective of the former judgment against her husband : Newcomb v. Andrews, 41 Mich. 518.

<p>Error to Wayne. (Speed, J.)</p> <p>Debt on appeal bond. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

(Jennison, J.) Beplevin. Defendant brings error. The facts are stated in the opinion. The renewal affidavit is invalid. It was sworn to beforq the township clerk, and that officer has no general power to administer oaths. By How. Stat. § 717, certain officers are required to take the oath of office “before the township clerk or some other officer authorized to administer oaths;” but no general power can arise by implication from this section.

(Grant, J.) Assumpsit. Plaintiff brings error. The facts are stated in the opinion.

(Gridley, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion. There is no pretense of an express contract for the purchase of the timber of plaintiff, and the facts preclude an implied one. Express and implied contracts do not differ in nature, but in the mode of substantiation ; and neither can arise unless the parties sustain contract relations, and are in privity with each other: Woods v. Ayres, 39 Mich. 345.

Russell, J. Case. Plaintiff brings error. The facts are-stated in the opinion. The maxim, sic utere tuo ut alienum non laedas, applies. The plaintiff was not the lessee of the defective walls — had no control over them, or any knowledge of the defect.

(Russell, J.) Assumpsit. Defendant brings error. The •facts are stated in the opinion. Plaintiff sought to recover for the consideration money due upon an alleged parol contract of sale of an alleged equitable interest in lands, a contract notdeclared upon, and void by statute, liad it ever existed : How. Stat. § 6181.

(Gridley, J.) Bill filed for specific performance of contract assigned to .defendant, to whom land is also conveyed. Complainant appeals. The facts are stated in the opinion.

(Montgomery, J.) Complainant filed a bill to establish a vendor’s lien and foreclose the same as a mortgage. Defendant appeals. The facts are stated in the opinion. How. Stat. § 5569, does not apply to this case.

(Smith, J.) Ejectment. Plaintiff's bring error. The facts are stated in the opinion. How. Stat. § 6085, requires, in order to obtain a license for the sale of an infant’s real estate, that a'-petition be filed setting forth the condition of the estate of the ward, and the facts and circumstances on which the petition is founded, tending to show the necessity or expediency of a sale.

(Green, J.) Information for robbery. Convicted of larceny from the person. Respondent brings error. The facts are stated in the opinion. Respondent was tried on an information charging him, under How. Stat. § 9091, with the crime of robbery, and the evidence offered by the people tended to prove that crime, if any. The information was silent as to whether respondent was armed or unarmed. E ow.

Case made from the superior court of Grand Rapids. (Parrish, J.) Case. Plaintiff alleges error. The facts are stated in the opinion. Under the circumstances stated in the declaration it was the duty of plaintiff to make every effort to stop the train, not amounting to wanton recklessness, the purpose being to save life; and it was his duty to signal the train to stop: Eckert v. Long Is.

<p>Error to Kalamazoo. (Mills, J.)</p> <p>Replevin. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

(Jennison, J.) John L. Smith appealed from an order of the probate court of Wayne county, allowing his father’s widow one half of the residue of his personal estate, which order was reversed and the claimant brings error. There are only two points in this case. 1. Whether the sum of $1,000 bequeathed in lieu of dower, is shell an interest in the personal property as debars the widow from the benefits of the statute on her accepting it, and ' 2. Whether the statute [IIow.

(Grant, J.) Trespass. Plaintiff brings error. The fact of the trespass having been proven, plaintiff is entitled to treble damages unless it is made to appear that it was casual and involuntary: How. Stat. § 7957; Clark v. Field, 42 Mich. 342 ; and the trespass, once shown, the burden of proof is on defendant to show that it was casual and involuntary.

(Grant, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion. The promise of defendants, if made, to pay the balance, due plaintiff, was void, not being in writing, as required by How. Stat. § 6185 (second clause), which applied only to promises which are in the nature of guarantees for some other or original or primary obligation to be performed by another: Gibbs v. Blanchard, 15 Mich. 23, 30; Rogers v. Neilson, 14 Wend. 113.

(Chambers, J.) Assumpsit. Plaintiff brings error. The facts are stated in the opinion. It is onl/y where the law imposes a duty, or an obligation upon a party, that he is relieved from such duty or obligation by the act of God; but where a party, by Ms own contract, engages to do an act, the performance is not excused by an inevitable accident, or other contingency, not within the control of the party making the contract.

(Green, J.) Ejectment. Defendant brings error. Plaintiffs were not entitled to two judgments, and having elected to take one for possession of the premises, must stand by it: Rawson v. Parsons, 6 Mich. 401; Bertram v. Cook, 44 Mich. 397. “ A writ of error is in the nature as well of a certiorari to remove a record from an inferior to a superior court, as of the commission to the judges of the superior court to examine the record and affirm or’ reverse the judgment according…

(Gridley, J.) Bill filed to restrain waste. Defendant adjudged guilty of contempt in violating injunction and appealed from such decree. The facts are stated in the opinion.

(Ohipman, J.) Libel. Plaintiff brings error. The facts are-stated in the opinion. Defendant, under the testimony, was responsible for the publication and for its results, if libelous: Clifford v. Cochrane, 10 Ill. App. Ct. 570; and words, not actionable in themselves, may become so if spoken of one engaged in a particular calling or profession : Id. 574.

(Chipman, J.) Case. Plaintiff brings error. The declaration is in the usual form of declarations against physicians and surgeons: Elwell’s Malpractice, 125; McLellan’s Civil Malpractice, 135.

(Jennison, J.) Assumpsit. Defendants bring error. The facts are stated in the opinion. The court permitted a copy of the declaration to be filed in the circuit, not as a new or amended pleading, but as a copy of the paper claimed to have been lost. This amounted to permitting the plaintiff to amend the justice’s return and was error. The evidence to prove the copy was insufficient.

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

<p>Money paid for another’s use — Action for — Statute of limitations — Statute of frauds — Borrowed money— When payable on demand.</p> <p>1. Where no special time is fixed for the payment of borrowed money, the loan is impliedly payable on demand.</p> <p>2. On a review of the facts in this ca'se, the Court finds that the note* upon which plaintiff claims was never a legal liability of the defendant.</p>

(Emerick, J.) Information to determine the title of respondent to the ■office of Mayor of Alpena. Eel at or brings error. The facts are stated in the ■opinion.

(Emerick, J.) Assumpsit. Plaintiff brings error. The fact* are stated in the opinion. He to whom an account is rendered is bound, within a reasonable time, to examine it and object if its correctness is disputed, and by failing so to do he will be bound by the account stated : Lockwood v. Thorne, 11 N. Y. 170 ; Avery v. Leach, 9 Hun, (N. Y.) 106 ; White v. Campbell, 25 Mich. 469 and cases cited.

(Emerick, J.) Assumpsit on appeal bond. Plaintiff brings error. The facts are stated in the opinion. The case should have been submitted to the jury: Woodin v. Durfee, 46 Mich. 424 ; Cahill's Appeal, 48 Mich. 617; Duncan Heirs v. U. S. 7 Peters, 449. From the undisputed facts plaintiff was entitled to a verdict.

(Smith, J.) Case. Defendant brings error. The facts are stated in the opinion. Contended that there must be a limit to the weight of loads, for the safe and secure passage of which over country highways, a township must provide; that it is unreasonable to require such municipality to construct its bridges in a manner to guard against unknown and unforeseen emergencies, which would be impracticable: Wingate, Maxim 161, 300; 3 Shars. Bl. 144; Medina v. Perkins, 48 Mich. 67.

Mandamus, to compel respondent to dismiss an appeal from commissioners on claims, because bond was given to administrator and not to relators, as heirs at law of deceased, they having assumed the burden of resisting the claim. The facts are stated in the opinion.

(Smith, J.) Trespass. Defendants bring error. The facts are stated in the opinion. “ Intention is generally proved by circumstances, because usually there is no other mode of proof.

Information in nature of a quo warranto, to try the title of the respondent to the office of member of the board of education of Union school district of Bay City. The facts are stated in the opinion.

Mandamus. The facts are stated in the opinion. A statute which has been law in Michigan forty years is presumably constitutional from long practice and acquiescence: Stuart v. Laird, 1 Cranch, 299 ; and this Court, in supporting similar legislation, has often laid stress on the fact that such legislation antedated our present constitution, and was not intended to be repealed by it: Daniels v. People, 6 Mich. 388; Rowe v. Rowe, 28 Mich. 357.

<p>Replevin — Justice’s jurisdiction — Prevailing defendant may recover judgment for value of property, up to five hundred dollar's — Plea in abatement.</p> <p>1. A defendant who prevails in replevin, before a justice, may recover the value of the property replevied, not exceeding five hundred dollars; and the justice has jurisdiction to render a judgment accordingly.</p> <p>2. A plea in abatement is not necessary to destroy the jurisdiction of a justice depending on the amount in controversy, if shown on the trial to be excessive.</p> <p>3. The jurisdiction of a justice, in replevin, attaches according to.the claim in the affidavit; and, having attached, continues to judgment, at least up to five hundred dollars.</p>

(Joslin, J.) Complainant appeals. The facts are stated in the opinion. Complainant claims the right to use this alley, through the provisions of the Caroline Buchoz mortgage. This mortgage was foreclosed, and the south eight feet of the mortgaged premises, and the right of way to the barn, were sold and conveyed to complainant. The evidence shows that the alley in question was the way provided by Buchoz, under the provisions of this mortgage.

(Mills, J.) Complainants appeal. The facts are stated in the opinion and summarized in the head note. Complainant Bush,by the payments made on the mortgages, being interested as a bondholder and stockholder of the cor■poration, was subrogated to the rights of the mortgagees to the amounts of such payments; Jones on Mortgages, vol. 1, §§ 87^-885.

(Gage, J.) Appeal from judgment in favor of claimant against estate. Tbe facts are stated in the opinion and foot notes, and in former reports of same case found in 49 Mich. 104, and 53 Mich. 287.

(Mills, J.) Information for murder. Convicted. The facts are stated in the opinions. ' The examination made by Dr. Andrews was insufficient to base an opinion on as to the cause of death. He stated no facts on which to base it, but does show that he had no knowledge on the subject. His opinion was a mere guess: Grand Rapids & Ind. R. R. Co. v. Huntley, 38 Mich. 542-3.

(Montgomery, J.) Complainant appeals from decree dismissing bill. The facts are stated in the opinion and head note. The statute of limitations does not apply to the case at bar. The contract, the mortgage, and the tax receipts are securities for the same debt; and, taken together, bring the transaction down to the time of commencing suit. Prior to Act No. 204, Pub.

(Wixson, J.) Ejectment. Plaintiff brings error. Thé facts are stated in the opinion. The affidavit was insufficient to give the commissioner jurisdiction to make the order of appearance. The statute (C. L. 1871, § 5116; How.

(Bussell, J.) Trover. Plaintiff brings error. The facts are stated in the opinion. The mortgage was properly executed by the proper officers, which execution was authorized by the board of directors; and a formal resolution was unnecessaryJones on Chat. Mortgages, § 51. A seal was also unnecessary: 1 Potter on Corp. § 37, citing 2 Kent’s Com.

(Russell, J.) Replevin. Plaintiff brings error. The facts are stated in the opinion. The action is in rem, and the contract note was offered in evidence for the purpose of showing that the title remained in the vendors. This is competent: Ingersoll v. Barnes, 47 Mich. 104. On payment of the purchase price by plaintiff, who was only a surety, he was subrogated to the rights of the vendor's : West Michigan Savings Bank v. Howard, 52 Mich. 424.

(Emerick, J.) Replevin. Defendants bring error. The facts are stated in the opinion. Inquiry must be made where information is likely to be obtained: Hosley v. Holmes, 27 Mich. 427; Shotwell v. Harrison, 30 Mich. 179.

(Emerick, J.) Replevin. Defendant brings error. The facts are stated in the opinion.

(Smith, J.) Case. Defendant brings error. The facts are stated in the opinion. A declaration for negligent injury must aver thefaot and manner of negligence, and plaintiff should be confined to what is set forth in his declaration. Reason and good sense, as well as law, compel the plaintiff by his declaration in these cases to inform the defendant and court what the complaint is; and he must not only show that the defendant has been negligent, but in what respect.

<p>Constitutional law — Title to statutes — Object to be expressed therein — Amendatory act — If of section homing but one object, title sufficient if it purports to amend such section — When object stated in title is to amend sections of an existing act, and the amendments relate to such object and arre germane to the general object of the act, the title is sufficiently explicit —Later statute — Repeals inconsistent provisions of existing law and those covered by subsequent act — Legislature—Pending bill may be perfected by a substitute, introduced after the expiration of the legislative fifty days, if purpose is the same as that of original bill — Act 898, local acts of 1885 —Validity of sections 9 and 10 — If invalid, remainder of act not affected by such invalidity.</p> <p>1. Where a section of an act of the legislature providing a charter for a city is confie ed solely to prescribing its territorial boundaries, an amendatory act entitled “an act to amend said section,” etc., but not more particularly specifying its object, which was to alter such boundaries, is not repugnant to Sec. 20, Art. 4 of the constitution. Such title necessarily imports that the boundaries of the municipality are to be changed by the amendment, and such object is sufficiently expressed in the title of the amendatory act. (See note.)'</p> <p>2. Where the object stated in the title to an act of the legislature is to amend certain sections of an existing act, and to add new sections-thereto, and the provisions of the amendatory sections relate to such object, and are germane to the general object of the act, and appropriate to effectuate the same, — such act is not in conflict with Sec. 20' of Art. 4 of the constitution. (See note.)</p> <p>Note. — For a full discussion of this section, see Attorney General v. Weimer, 59 Mich. 580; Callaghan v. Chipman, Id. 610; People v. Beadle, 60 Id. 22</p> <p>3. An existing law, in so far as its provisions are inconsistent with or covered by a subsequent act of the legislature on the same subject, is repealed by the later act. People v. Bussell, 59 Mich. 104.</p> <p>4. The introduction of a substitute for a pending bill aftw the expiration of the fifty days limited by Sec. 28, Art. 4 of the constitution for the introduction of new bills, is not in conflict with such constitutional provision, if the provisions of the substitute are in harmony with the objects and purposes of the original bill as expressed in its title.</p> <p>■5. A pending bill may be perfected in any manner consistent with the original object as expressed in the title, by amendment, or by a substitute therefor if the substitute is for the same purpose as the original bill, and not for another or different purpose.</p> <p>■6. Whether sections 9 and 10 of Act 398 of the Local Acts of 1885, amending the Detroit City Charter, are valid, the court declined to decide, the question not being necessarily raised by the record; but if invalid, they do not impair the validity of the remaining portion of the act, which is capable of enforcement if these sections were stricken out.</p>

(Chipman, J.) Ejectment. Plaintiff brings error. The defendant claimed title to the land in dispute under a guardian’s deed, of date December 9, 1850, executed upon a sale made by virtue of a license granted by the probate •court of Wayne county, October 8, 1850.

(Smith, J.) Assumpsit. Plaintiff brings error. The facts -are stated in the opinion and head notes. An unnamed principal may take the benefit of a contract executed by an agent in his own name': Hubbert v. Borden, 6 Wharton’s Penn. 79 ; Violett v. Powell, 10 B. Mon. 347; Brooks v. Minturn, 1 Cal. 481; Cothay v. Fennell, 10 B. & C. 671; Byington v. Simpson, 134 Mass. 169; Wharton on Ev. §§ 950 — 1, and note 5 ; Phillips on Ev.

<p>Mortgage — Negotiable paper — If obtained for a valuable consideration, before matwrity and in good faith, mortgage security is protected equally with the note — Execution levy— When deemed abandoned.</p> <p>It has always been the law in Michigan that a person obtaining negotiable paper for a valuable consideration, and before maturity, is protected in its acquisition, unless obtained in bad faith; and, if secured by a mortgage, the mortgage is protected equally with the note.</p>

Clair. (Stevens, J.) Ejectment. Defendant brings error. The facts are stated in the opinion. Under How.

Clair. (Stevens, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion. If the warranty constituted a part of the contract, it was necessary to put the defendant in a position where he could enforce its provisions. This was not done, and plaintiffs action must fail: Sherwood v. Hecox, 35 Mich. 202; Kimball & A. Manufacturing Co. v. Vroman, Id. 330.

(Wixson, J.) Trespass. Plaintiff brings error. The facts are stated in the opinion.

. Error to Sanilac. (Wixson, J.) Ejectment. Plaintiff brings error. The facts, are stated in the opinion and head note. How. Held: when the statuté was the same as now, “that the right to dower, until legally assigned, was a right in action only ” : Rayner v. Lee, 20 Mich. 384 ; Comp. Laws, 1857, § 4555.

Mandamus. The facts are stated in the opinion. Cited the sections of the statute referred to in the opinion in support of action of superintendent of public instruction. Title to office will not be tried on an application for mandamus : Mead v. Treasurer of Ingham Co., 36 Mich. 416. ; The action of the treasurer is based on the prior action of the clerk, who must make the apportionment before the treasurer can know to whom, and what amounts, he is to pay.

Case made before judgment from Clare. (Hart, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion. This is a case made before judgment, and was certified to this Court under circuit court rule 84, but the required statement of errors was not filed.' No exception was taken to the order of the circuit judge directing judgment for the plaintiff, nor is any error assigned thereon.

(Smith, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion. While it is true that the-knowledge of the agent is treated in many cases as that of the principal, and this rule has been frequently applied in actions on insurance policies (Peoria M. &. F. Ins. Co. v. Hall, 12 Mich. 213 ; Ætna Live Stock F. & T. Co. v. Olmstead, 21 Id. 246; Security Ins.

(Gfridley, J.) Replevin. Plaintiff brings error. The facts are stated in the opinion.

Clair. (Stevens, J.) Assumpsit. Defendant brings error. The facts-are st’ated in the opinion and head notes. The notes sued upon are not negotiable instruments: Lamb v. Story, 45 Mich. 490; Cayuga County National Bank of Auburn v. Purdy, 56 Id. 6. The plaintiff cannot abandon the notes and sue upon the original purchase price, because,, 1. It does not insist upon such recovery. 2.

(Smith, J.) Appeal from Probate Court by Executrix. The facts are stated in the opinion. The amount of the statutory exemptions was fixed at $500, and an action of assumpsit for money had and received lay the moment the assignee sold the stock of goods.

(Montgomery, J.) Bill for partition of personal property. Defendant appeals.. The facts are stated in the opinion.

<p>Appeal by defendant from the Superior Court of Grand Eapids. (Parrish, J.)</p> <p>The facts are stated in the opinion, and in head note 1.</p>

Clair. (Stevens, J.) Attachment. Defendants bring error. The facts are stated in the opinion. All of the proceedings in the case on the part of the sheriff were taken on January 18, the date the writ was issued. The appraisal of the attached property was made that day, as appears by his return, and on the same day he made his return that he was unable to find the defendants.

(Gage, J.) Appeal from the disallowance by the probate court of Genesee county, of plaintiffs claim against the estate of John B. Passmore. Claimant brings error. The-facts are stated in the opinion. The declarations of a debtor (living or dead) in his own behalf are hearsay and incompetent evidence: 1 Greenl.

(Parrish, J.) Bill for accounting, etc. Defendants appeal from, decree overruling demurrer. The facts are stated in the opinion. (See 60 Mich. 485.) “ The jurisdiction exercised by courts of equity over the dealings of persons standing in certain fiduciary relations has always been regarded as one of a most salutary description. * * , * The courts have always been careful' not to fetter this useful jurisdiction by defining the exact limits of its exercise.

<p>Life insurance money — Payment from of note signed by husband and wife— Given for money received by husband and his family, when thei/r needs were pressing — iff paid by wife after husband’s death, without undue influence, such payment voluntary.</p> <p>Complainant and her husband executed a note to defendant Hollister, to secure money due the latter, and money thereafter to be advanced by him for the benefit of her husband and their family, and it was understood and intended by her and her husband (who was then sick) that the note was to be paid from the insurance money she would receive on her husband’s death. After his death she paid the note from such money without undue influence from, any one, and afterward knew of, and acquiesced in, the allowance of her claim against her husband’s estate for the money so paid.</p> <p>Held, that such payment must be held a voluntary one on her part, and her bill filed to recover the money from said Hollister is dismissed, with costs.</p>

(Speed, J.) Appeal from order dismissing petition of creditor for removal of receiver and for other relief.

(Chipman, J.) Case. Plaintiff brings error. The facts are stated in the opinion. It is well settled that a master is not responsible for injuries when the risk is open and voluntarily assumed: Cooley on Torts, p. 551.

(Grant, J.) Assumpsit to recover taxes paid under protest. Plaintiff brings error. The facts are stated in the opinion and head notes.

<p>Error to Muskegon. (Russell, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p> <p>A dissenting stockholder of one of two consolidating corporations is not bound by a defacto consolidation : Swartwout v. Mich. Air Line R. R. Co., 24 Mich. 389 ; Peninsular Ry. Co. v. Tharp, 28 Mich. 506; Mansfield Coldwater & Lake Mich. R. R. Co. v. Drinker, 30 Mich. 125; Tuttle v. Mich. Air Line R. R. Co., 35 Mich. 247; Rodgers v. Wells, 44 Mich. 411.</p> <p>The assignment, exhibit “ B ”, could not be reformed in a court of law so as to be something which it did not purport to be. On its face it was not the assignment declared upon, and no other was shown. It should not therefore have been admitted in evidence. Comstock made exhibit “ B ” what it was and as it was, and the directors, at the Boston meeting, June 7th, 1878, assumed, not to repudiate, but to confirm what Comstock had done. The resolution adopted at the meeting cannot be construed to be anything but that which by its terms it purports to be. It is not ambiguous. It was wholly incompetent to show the assignment declared upon, and irrélevant — not having been alleged by the declaration : Rodgers v. Wells, 44 Mich. 411.</p> <p>The statute requires separate notices of the meeting of the stockholders of a railroad company to sanction an agreement for consolidation, under Comp. Laws 1871, § 2445 (How. Stat. § 3348); and they should be signed by the respective •secretaries, not jointly, but each his own notice.</p> <p>The date of an instrument is not vital to the contract, nor is fixing the maturity of some liability an essential part thereof; and it may be varied or corrected by parol. The instrument will take effect from the date of its delivery: 1 Greenleaf Ev. (13th ed.) § 285, and notes: Hall v. Cazenove, 4 East. 477; Churchill v. Bailey, 13 Maine, 64; Joseph v. Bigelow, 14 Cush. 82; Lamore v. Frisbie, 42 Mich. 186.</p> <p>On the plainest principles of estoppel, legal and equitable, appellant cannot ask the court to relieve him of" his undertaking, it appearing that he must have been present at the stockholders’ meeting and voted for the consolidation: Swartwout v. Mich. Air Line R. R. Co., 24 Mich. 398; Monroe v. Ft. Wayne, Jackson & Saginaw R. R. Co., 28 Id. 272; Danbury & Norwalk R. R. Co. v. Wilson, 22 Conn. 435; Clark v. Monongahela Nav. Co., 10 Watts, 364; Everhart v. West Chester & Phil. R. R. Co., 28 Penn. St. 339; Greenville & Col. R. R. Co. v. Coleman, 5 Rich. 143.</p>

<p>Taxes — Payment of under protest — Protest does not give cause of action— Illegality of the tax does — Protest determines time from which recovery may be had, and when statutory limitation begins to run— Poes not make payment involuntary when no effort has been made.to collect — Statute permits action to be brought, where payment is voluntary, for causes mentioned in protest.</p> <p>1. Without considering in detail the various irregularities and grounds of illegality stated in the protest under which the taxes were paid by plaintiff (see opinion), the Court held that, under its decisions and the findings of fact in this case, the proceedings are sufficiently regular to sustain the tax.</p> <p>2. It is not the protest that gives a protestant his cause of action to recover taxes thus paid, but the illegality of the tax assessed. The protest determines the time from which the taxes may be recovered, and when the limitation of the statutory right of action begins to- run for causes mentioned in the protest; but it does not make the payment involuntary when there has been no effort to collect, or demand for payment made, but permits the action to be brought, when the payment is voluntary, for the causes mentioned in such protest. [See authorities cited in opinion.]</p>

(Speed, J.) [Replevin. Defendant brings error. The facts are stated in the opinion and head notes. The action of plaintiff and her husband in bringing replevin for the property against the officer and Schroeder, estops her from denying a delivery by defendant: Thompson v. Howard, 31 Mich. 309-12; Nield v. Burton, 49 Mich. 53.

(Jennison, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion. The case should have been taken from the jury. Plaintiff’s services were performed by him as a member of the committee appointed to confer with the bishop, and as one of the active trustees of the corporation; and there is no evidence tending to show that either party expected or intended that he should receive pay : St. Jude's Church v. Van Denberg, 31 Mich. 287.

(Mills, J.) Bill to enforce performance of trust by assignees of insolvent debtors. Complainants appeal. The facts are stated in the opinion. Held: with great uniformity, that the assignors are to close up the estate, and not inyolve it in further complications, and that they cannot continue the business, or otherwise use the assignment, to hinder and delay creditors.

(Russell, J.) Assumpsit. Plaintiff brings error. The facts are stated in the opinion and head note.

(Hart, J.) Appeal from decree dismissing bill. The facts are stated in the opinion, and in head note 1. A cross-bill should be filed at time of filing answer, and’ before replication thereto: Jennison’s Oh. Rr. 389, 390; and' can be sustained only on matters growing out of the original, bill and embraced in it: Id. 388; Andrews v. Kibbee, 12 Mich. 96-7; Farmers' & Mechanics' Bank v. Bronson, 14 Id. 361, 372; Story’s Eq.

(Emerick, J.) [Replevin. Plaintiff brings error. The facts ■are stated in the opinion.

(Smith, J.) Defendants appeal. The facts are stated in the opinion. One of several creditors may file his bill for payment of his debt, and seek a discovery of assets for this purpose only : Truett v. Wainwright, 4 Gilm. 428; 1 Story Eq. Jur. § 546; Thompson v. Brown, 4 Johns. Ch. 619.

(Wixson, J.) Replevin. Plaintiff brings error. The facts are stated in the opinion and head notes. The owner of timber, even upon condition of removal within a limited time, is entitled to notice to remove before forfeiture: Wood v. Elliott, 51 Mich. 320.

(Fuller, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion. The provision of the statute [How. Stat. § 14J5] requiring a certificate to be attached to a deposition showing the official capacity in which the person acted before whom it was taken,, is directory; and the notarial seal of the officer sufficiently shows his official character : Greenl. Ev. § 5, and cases cited.

(Hart, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion. Under the charge the jury were required to find that plaintiff had expressly given defendant his time to entitle him to his earnings, and this was error.

<p>Homestead — Selection of — Sale of on execution — Law governing fully considered — Price brought at execution sale not conclusive evidence of value— Proof of value of — Limitation of number of witnesses to six, not an abuse of discretion — Statements of counsel to jury.</p> <p>1. The creditor’s right to a satisfaction of his debt by a sale of the debtor’s land never existed in this country or in England, except as given by statute law.</p> <p>.'2. The homestead exemption in this and other states is not in derogation of the common law, but rather the limitation and exclusion pf such exemption; and the rule requiring strict construction has no application to these statutes, as against the debtor, or to the constitutional provision securing to him a homestead.</p> <p>3. The homestead exemption, as established by the constitution and laws of Michigan, is not alone for tire husband and his protection, but for the benefit of the wife and children as well. It is not a privilege, but an absolute right, and was intended to secure against creditors abóme, and, toa certain extent, the means of support, to every family'in the State.</p> <p>•4. Where land claimed hs a homestead is within the constitutional limit as to quantity, and is occupied by the owner, such occwpancy is evidence of an election by such owner of the parcel so occupied, and is a sufficient notice to all of its homestead character, and of his selection and the extent thereof, to enable him to enjoy the fullest protection of the law, which forbids its sale on execution unless its value exceeds fifteen hundred dollars; in which event the creditor, if unable to obtain the debtor’s consent to a division, may apply to the -equity court to secure the same.</p> <p>5. When a debtor has selected his homestead (see note 4), and it is within the constitutional limitation as to quantity, excess of value will not necessitate any other action on his part in case of a levy thereon until the appraisal provided for by How. Stat. § 7728, is made; and in the absence of such appraisal, or a division had under the order or decree of a court of equity, no valid sale of the homestead so selected, or any part thereof, can be made by the sheriff under such levy.</p> <p>6. A homestead once established can never be waived except by abandonment, or alienated except by deed of some kind; but prior to an election and-selection by the owner (see note 4) it may be waived by failure to make such election and selection before sale by the sheriff.</p> <p>7. No waiver of the homestead right by the husband can affect the-wife’s interest therein; nor can such waiver, or an abandonment thereof by one entitled to its enjoyment, affect the interest of any other person equally entitled thereto. ''</p> <p>8. A wife waives nothing by taking a deed from her husband of their homestead without consideration, and such conveyance cannot be considered in fraud of his creditors.</p> <p>9. The price brought by a homestead on execution sale is not conclusive proof of its value.</p> <p>10. Where in an action of ejectment brought on an execution sale of a homestead the only question to be determined by the jury was its value, it was not an abuse of discretion on the part of the court to-limit the number of witnesses on each side to six.</p> <p>[This case was twice argued before the Court upon original and supplemental briefs, and, as the opinion of the Court covers the whole range of the discussion and contains full citations of authorities, an abstract of the briefs of counsel is omitted. — Reporter.]</p>