Volume 61 — Michigan Reports

<p>Survey — Location of quarter-line.</p> <p>In this case the survey made by defendant is held incorrect, as shown by the finding of facts. For reasons see opinion.</p>

(Hooker, J.) Bill to rectify decree. Complainants appeal. Reversed, with leave to amend, etc. The facts are stated in the opinion and head-note.

<p>Appeal from Livingston. (Newton, J.)</p> <p>Appeal from order granting injunction.</p> <p>The facts are stated in the opinion.</p>

<p>Railroad condemnation proceedings — Confirmation of report of commissioners, not a matter of right on regular record. — Probate court has power to deny for substantial reasons not shown by record — Same right exists on a/ppeal— Jury — Waiver of under Art. 6, Sec. 27, Const., relates to ordinary trial in cioil cases — Right to, in condemnation proceedings, a substantial one — Ought not to be cut off by technicalities.</p> <p>1. The confirmation of a report of commissioners in railroad condemnation proceedings is not a matter of strict right upon a regular record, and if substantial reasons are shown against it by facts not in such record, the court in'which.the proceedings are had has power to do justice and refuse confirmation, and the same right exists on appeal.</p> <p>2. The constitutional provision providing for waiving a jury unless demanded, relates to the ordinary trial by jury in civil actions: but there are special constitutional provisions requiring juries in condemnation cases to be composed of freeholders of the vicinage, and allowing the Legislature to provide for commissioners instead of such juries; and the demand for such a jury, provided for by the Legislature ou the hearing, is a substantial right, and ought not to be prevented by technicalities.</p> <p>3. Under the circumstances of this case, as shown in the record, it was improper to refuse the demand of respondent for a jury.</p>

<p>Common-law arbitration — Agreement for, with stipulation for judgment on the award, not a discontinuance of a suit involving same subject matter —Nor will it operate to stay proceedings therein — May be used as basis for application for such stay — Cannot be pleaded or shown in bar of the action — Suit for damages for the illegal occupancy of street by railway company, adjoining plaintiff’s land — Subsequent award in condemnation proceedings instituted by railway company, not a bar to such suit — Case distinguished from jl Mich. SSS — Plaintiff’s damages confined to mischief done up to commencement of action — And cost of restoring premises, if damages capable of restoration — In such condemnation case plaintiff might have future damages assessed, but not bound to do so.</p> <p>1. Tlie question of tlie effect of arbitration proceedings upon a pending suit involving the same subject-matter is not a proper issue to be passed upon when the case is upon the general merits, and cannot be pleaded or shown in bar of the action. If available at all, it is by way of abatement of the suit.</p> <p>2. A common-law agreement to arbitrate the subject-matter of a suit, and enter judgment upon the award in the court where such suit is pending, when rendered, does not operate as a discontinuance of such suit, nor as a stay of proceedings therein; but may be used as the basis for an application for such stay.</p> <p>8. Pending the trial of a suit brought by a land-owner against a railway company to recover damages for the illegal occupancy of an adjoining street, the railway company instituted proceedings in the probata court to condemn the 'subject matter of the litigation, and seemed an award by commissioners, and its confirmation. [See Pt Huron & N. W. Ry. Co. v. Callanan, 61 Mich. 12.] On the trial the condemnation proceedings and award were offered and received in evidence on the part of the railway company, and the court instructed the jury that they were a bar to the action, and a verdict was rendered accordingly.</p> <p>Held., that there is no authority for any such doctrine as will give a subsequent suit the effect of abating a prior one, the Court distinguishing tire case at bar from Harlow v. Marquette, H. & O. R. R. Co., 41 Mich. 336, where the plaintiff was held barred because consent had been given to the occupancy complained of, with an understanding that the damages should be adjusted thereafter, and for that reason it was held that the condemnation proceedings should cover them all.</p> <p>Held, further, that in the present action the damages for a rightful appropriation could not be considered; and the recovery was limited to the mischief done up to the time of the suit, and the cost of restoring tile premises, unless the damage was incapable of restoration.</p> <p>XfeM,(/further, that in the probate court proceedings the land-owner might, if he chose, have all former as well as future damages assessed, but he was not bound to do sp.</p>

Clair. (Stevens, J.) Bill filed to set aside an award. Complainant appeals from a decree dismissing bill. The facts are stated in the opinion.

<p>Arbitration agreement — Suit on bond, for payment of award — Agreement and bond, not being executed simultaneously, need not be construed together — ’ Agreement for appraisal on inspection by arbitrators — No occasion for the presence of any one else — Judgment of conclusively presumed correct if honestly exercised — In absence of proof to the contra/ry such exercise presumed — Mistake in compulation of interest — If means of correction are furnished by the record, no ground for reversal of judgment — Falls under statute of amendments.</p> <p>1. The parties to a suit entered into a written agreement for the settlement of the matters of difference, specifying fully the terms and conditions, and providing for an appraisal, by a third party and two other persons to be selected by him, of the value of a pier, the ownership of which was involved in the suit; the report of such appraisers was to be ready for the parties in thirty days from the date of the agreement, which was undated.</p> <p>Provision was also made for the execution of a bond by the plaintiff in the suit within ten days, conditioned for the payment of the award within ninety days after the report of the referees was ready for the parties, which bond was executed June 1, and the award made June 25, as found by the jury.</p> <p>Held, in a suit on the bond, in which the defendant claimed that the appraisal was not made within thirty days from the execution of the agreement, that the papers, not beiDg executed simultaneously, were not required to be construed together.</p> <p>Held, further, that the bond being only given to secure the payment of the award and containing nothing upon its face to show that it referred to the «agreement, and the surety — who was also a party defendant — not being shown to have known of the existence of any such paper or to have supposed that he was stipulating in reference to it, the limitation as to the time for making the award formed no part of the condition of the bond, and the same, having been made strictly within the terms of the bond, was sufficient to fix the liability of the obligors.</p> <p>Meld, further, that the so-called reference was nothing but an agreement for an appraisal by the appraisers on their own inspection ; that there was no occasion for the presence of any one else ; and that it must be conclusively presumed that their judgment, if honest,was correct, and that it was honest if not shown to be otherwise.</p> <p>2. Where in making an award otherwise held legal a mistake of $6.13 was made in computing interest, but the award was for a fixed sum, held, that such error may be corrected from the record itself, and is no ground for reversal, under the statute of amendments.</p>

<p>Injunction — Mandamus to dissolve — Granted only when exigency demands prompt action to prevent mischief.</p> <p>A mandamus to disturb action by a circuit judge in equity can only issue upon some exigency requiring prompt action to prevent mischief; and so long as the law is open, the Court is not called upon to use its extraordinary powers to assist private redress of supposed wrongs.</p>

Mandamus to vacate order setting aside service of sub-, poena arid subsequent proceedings in foreclosure case. .The facts are stated in the opinion and head-notes.

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

<p>Error to Mackinac. (Steere, J.)</p> <p>Ejectment.' Defendants bring error.</p> <p>The facts are stated in the opinion and reporter’s note.</p>

<p>Error to Wayne. (Chambers, J.)</p> <p>Trespass. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Superior Court of Detroit. (Chipman, J.)</p> <p>Injunction bill. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Attorney and client — Privileged communications — Must be made for purpose of obtaining legal advice upon client’s business.</p> <p>Plaintiff and Ms brother employed an attorney at law to draft a power of attorney authorizing their father to indorse certain drafts belonging to them and receive the money thereon. In a suit brought by plaintiff to recover the proceeds'of Ms draft, his brother testified that in a conversation had between them in the presence of said attorney, when the power of attorney was drawn, but in the absence of the father, it was mutually agreed to give to their father the drafts. This plaintiff denied, and the attorney was called as a witness to testify concerning said conversation, but Ms testimony was rejected on the ground that it was a privileged communication.</p> <p>Held, that it falls outside of any known rule, and within Alderman v. People, 4 Mich. 414, Hartford Fire Ins. Co. v. Reynolds, 36 Mich. 502, and whs competent.</p>

<p>Justice’s summons — Authority of person serving under Row. Stat. Sea. 6837, mustie indorsed on writ — Section must he read with Sections'707j-S— Competency of person must he determined by justice, after due investigation made before appointment — Record must show such determination — A showing that a person has no direct interest in result of suit raises inference that he has an indirect interest— Objection to service, supported by affidavit showing incompetency — 1Duty of justice to investigate into truth of charges — If uncontradicted, in absence of such investigation and adverse determination, to be taken as true.</p> <p>1. The authority of the “competent person” authorized to serve a justice’s summons under How. Stat. Sec. 6827,1 must be indorsed on the writ by the justice. Otherwise such service will give the court no jurisdiction.</p> <p>2. How. Stat. Sec. 6827, must be read with sections 7074-70751 of the same chapter, and the justice must determine, after due investigation as to age and other qualifications, the question bf competency, before making the statutory appointment; and his record must show such determination. Rasch v. Moore, 57 Mich. 56-7.</p> <p>8. An insurance company brought suit for an assessment, and the justice appointed one Coleman, its secretary and treasurer, to serve the summons, who made the proper return. On the return-day the defendant appeared specially and objected to the jurisdiction of the court, filing an affidavit showing the official character of Coleman, and that ' he was to receive ten per cent, of the assessment, if collected, for his services. The objection was overruled,'and in his return to a writ of certiorari the justice stated that before issuing the summons Coleman was sworn as to his competency, and said that he was of lawful age, a citizen of the State, and a resident of the city in which the justice resided, and had no direct interest in the result of the suit; that he was at work for plaintiff by the day, for wages, but gave no evidence on the subject o£ his official relation to the company.</p> <p>Held, that this showing, upon its face, did not show Coleman to be a competent person; that his denial of any direct interest in the result of the suit left an inference that he had an indirect one, and that it was the duty of the justice to investigate into the truth of the charges contained in defendant’s affidavit, which, in the absence of contradiction or investigation, and adverse determination, must be taken as true; and that he was ousted of jurisdiction.</p>

<p>Mutual fire insurance company — Organized under chap. 132, How. Stat.— Withdrawal of member and cancellation, of policy on payment of proportion of all existing losses and assessments then levied — Relieved from liability for future assessments to cover losses arising from failure to collect assessments, or from any other cause — Such are not existing losses— Such withdrawal sanctioned by How. Stat. 'sea. 4254 — -If in good faith is not affected by possibility of future deficiencies.</p> <p>1. Where the charter and by-laws of a mutual fire insurance company organized under chapter 132, How. Stat., provided for the withdrawal of a member on surrender of his policy and payment of his proportion of ail assessments to which the company was then liable, and a member paid his proportion of all existing losses and of all assessments then levied, and surrendered his policy,—</p> <p>Held, that losses subsequently sustained from failure to collect, or from any other cause, were not existing losses; that the member was clearly within the language of the charter and by-laws, and not liable for assessments made to cover such subsequent losses. (See opinion for charter and by-law provisions.)</p> <p>2. The withdrawal of a member from a mutual fire insurance company organized under chapter 132, How. Stat., is sanctioned by recognitions in the statute (How. Stat. § 4254), and is an arrangement where- ° by the company discharges a member from his membership relations.</p> <p>While there may be circumstances which, by reason of fraud or serious error, might render such surrender inoperative, if made in good faith the possibility of after deficiencies cannot destroy such surrender.</p>

<p>Title to land — Pat in, issue where declaration describes land, avers plaintiff's ownership in fee, and defendants give notice of title under statute — Trial in circuit court — Deed to plaintiff, with use of land reserved to grantors for their lives — Coupled toilh proof of plaintiff’s working land on shares under grantors — Defeats his action — On directing verdict for defendants they are entitled to costs — Error to certify that title to land did not come in question.</p> <p>Plaintiff sued defendants in justice’s court, declaring for an alleged injury to lands described in his declaration, in which he averred his ownership in fee, and possession at time of the trespass counted on. The defendants, with their plea of the general issue, gave notice of' title, filing the statutory bond (How. Stat. §§ 6890-2), and the justice certified the case to the circuit court for trial.</p> <p>On the trial the plaintiff testified to his possession and defendants’ entry, and offered in evidence a warranty deed from Isaac Deno and wife to him of the land, in which they reserved its use during their lives. Mrs. Dene was sworn in behalf of plaintiff, and testified “that she lived on the land, and had since she sold it to plaintiff, who worked it on shares, giving her one-half the crops.” After the defendants testified concerning the alleged trespass, the court stopped the trial and directed a verdict of not guilty, with costs in favor of the defendants. Some days afterwards the court certified that the title to land did not come in question upon the trial, and ordered the entry of a judgment for costs in favor of the plaintiff.</p> <p>Held, error. That the title was directly put in issue by the pleadings, and was necessarily brought in issue under the proofs and passed upon by the jury; and that the judge’s certificate must be vacated, and judgment for costs re-entered in favor of,defendants, thestatute being imperative under the circumstances. (See note.)</p>

<p>Taxation — Equalization by board, of supervisors by uniform reduction of one half from, value of property — Or assessment by supervisors on like agreed basis— Will not invalidate tax deed — Township taxes — Failure of town records to show vote by electors or town board of any sum for township purposes renders tax levy therefor invalid — No presumption arises that such vote was taken — Auditing claims by town board for previous year aggregating about the amount levied has no tendency to support the tax.</p> <p>1. Proof of the equalization by the board of supervisors of the assessment rolls of a county, on the basis of a uniform reduction of fifty per cent, from the true value of the property assessed, or of an assessment, by a general understanding among the supervisors, on a like basis, was properly excluded on the trial of an ejectment suit when offered to invalidate a tax deed under which the defendant claimed title. Such equalization or assessment would not injuriously affect the tax,because the proportionate burden would remain the same on all tax-payers.</p> <p>3. Where the records of a township fail to show that any sum was voted 'by the electors or town board for township purposes for a given year, the levy of a tax therefor is illegal, no presumption arising that such vote was had or taken. The fact that during the preceding year the town board audited claims against the township aggregating about the amount levied, has no tendency to support such a levy, and proof of such fact is inadmissible in a suit involving the validity of a tax deed based in part thereon.</p>

<p>Pleading — Recovery on common counts — Oannot be had for breach of contract for the sale of property to be partly paid for in land if contract fails to provide for money payment in default of conveyance of land— Recovery on pari performance of special contract by plaintiff, confined to money due.</p> <p>1. Plaintiff contracted with defendant, in writing, to sell him a stock of hardware, tinners’ tools, and store fixtures for four thousand five hundred dollars, three thousand dollars to be paid by the conveyance to plaintiff of a farm owned by the defendant described in the contract, and the balance in money, all on the completion of an inventory of the goods and other property. The basis of the inventory was not fixed in the contract, nor did it make any provision for a cash payment in default of defendant’s conveying the land.</p> <p>The defendant refused to convey the land, and plaintiff sued in assumpsit, declaring on the common counts alone.</p> <p>Held, that the contract was a special one, not resting on a money price; that the fact that the land was to be conveyed for $3,000 of the inventory price did not indicate that the property inventoried or land was priced at its cash value; that a breach of the contract must be measured in damages by the amount of injury done, which would involve an inquiry into the- actual and not the nominal value of the land, and that such damages were not recoverable under a common-count declaration.</p> <p>2. The authorities which allow suit under the common counts for the amount due on a special contract performed on the plaintiff’s part confine the recovery to money due. Special contracts, with this-single exception, if relied on for- recovery, must be counted upon specially.</p>

<p> Mandamus. </p> <p>The facts are stated in the opinion and head-note.</p>

<p>Attachment suit — By creditors of vendor — Trover by vendee for attached property — Statements of vendor, made after attachment to third party, tending to show fraudulent sale, inadmissible — Testimony concerning extravagance of vendee’s daughter, properly rejected — Requests to charge —Refusal to give in the exact form aslced for,- not error if general charge contains all that is proper and pertinent in them — Request assuming existence of a certain state of facts should seldom be given — And never if there is room for a different finding by the jury — Sale on credit — If honestly made, not illegal because merchant owes debts — Fraud, under the statute, always a question of fact — Not presumed from such credit sales — May be from failure to change possession — Or deviation from ordinary course of business — Action for fraud not assignable — Statute allowing creditors to treat certain dealings as absolutely void, confined to frauds against creditors — Attachment proceedings cannot be regarded as taken in debtor’s behalf — Nor can attaching creditors assume to represent debtor.</p> <p>1. On the trial of an action of trover brought by a vendee against an officer who, at the suit of creditors of the vendor, attached the-goods sold, the proposed testimony of a witness produced by the defendant, as to the actions and statements of the vendor the day after the attachment, was properly rejected by the court. Apart, from its apparent irrelevancy, it was not competent to allow such sale to be affected by the declarations of one of the parties, in derogation of the rights of the other, after the commencement of the attachment suit, and when such declarations were not part of the transaction itself.</p> <p>2. In such a case, testimony concerning the economy or extravagance. of the plaintiff’s daughter, in dress and other expenditures, could have no bearing on the nature or consideration of the purchases, made by her mother, and was properly excluded.</p> <p>3. The trial court is not required to give specific charges in the exact form, asked, if all that is proper and pertinent is contained in the charge actually given; and where a charge requested to be given assumes a certain state of facts as existing, it should seldom be given at all, and never if there is any room for a different finding by- the jury.</p> <p>4. The law does not prohibit honest sales of goods on credit merely because a merchant owes debts. A very large share of business is necessarily transacted in that way, and it has never been supposed that the purchaser could be held responsible for a dishonest purpose of his vendor on that account. The statute in regard to frauds «gainst creditors makes fraud in all cases a question of fact, and has laid down no rules allowing presumptions of fraud from sales ■on credit. Such presumptions may arise from a failure to change possession, and some express deviations from the ordinary course of business, but not from the mere failure to pay cash down.</p> <p>33. An action for fraud is not assignable, and the statute which allows creditors to treat certain dealings as absolutely void confines their redress to frauds aimed against creditors; and attachment proceedings .against a debtor cannot be regarded as taken in his behalf, nor can ,the attaching creditor assume to represent such debtor.</p>

<p>Habeas corpus — Sentence of imprisonment to commence after expiration of prior sentence — Commencement does not depend on action of the law or of any court — But upon determination of prison authorities as to allowance of time for good behavior on first sentence — Is indefinite and uncertain, and cannot be sustained in the absence of statute — Michigan never a common-law colony — English common law, unaffected by statute, adopted , into its jurisprudence — Always the purpose to define the whole ground of criminal law by statute as far as possible — Ho crime punishable except by virtue of a statutory provision— Undefined offenses fixed within named limits, and beyond the unregulated discretion of the courts — Criminal law — Should not be tampered with except by legislation — This must be done by statute under our constitution — Precise purpose designed must be pointed out in title and provisions.</p> <p>1. The petitioner was convicted óf an assault with intent to murder, and' sentenced to twelve years’ imprisonmentin the State prison. At the same term of court lie was sentenced to three years’ imprisonment, for larceny, from and after the expiration of the first sentence. Having saved three years of the first sentence by good conduct, he applies for his discharge, denying the legality of the second sentence under which he is ’imprisoned.</p> <p>Held, that the application is governed by that of Harris Bloom (see 53 Mich. 597); that the second sentence does not depend, as to . its commencement, on the action of the law or of any court, but upon the determination of the prison authorities as to how much, if any, time shall be allowed the petitioner on his first sentence for good conduct, and is therefore uncertain and indefinite, and, in the absence of statute, cannot be upheld.1</p> <p>2. Michigan was never a common-law colony, and it is the English common law, unaffected by statute, which has been recognized as adopted into our jurisprudence. While we have kept in our statute-books a general statute resorting to the common law for all non-enumerated crimes, there has always been a purpose in our legislation to have the whole ground of criminal law defined, as far as possible, by statute; and there is no crime whatever punishable by our laws except by virtue of a statutory provision, the punishment of all undefined offenses being fixed within named limits, and beyond the unregulated discretion of the courts.</p> <p>S. Whatever elasticity there may be in civil matters, it is a safe and necessary rule that criminal law shall, not be tampered with except by legislation, and under our constitution this must be done by statutes clearly pointing out in their titles and provisions the precise purpose designed.</p>

(Russell, J.) Respondent was convicted of failing to keep his saloon closed on Sunday, and brings error. The facts are stated in the opinion and head-note.

(Russell, J.) Respondent was convicted of a failure to keep his saloon closed on Sunday, and brings error. The facts are stated in the opinion, and in head-note 1.

(Montgomery, J.) Case. Defendant brings error. The facts are stated in the opinion and summarized at commencement of head-notes.

(Montgomery, J.) Bill filed to determine complainant’s right to an alleged eonrt-house square. Defendants appeal. Tlie facts are stated in the opinions.’

<p>Summary proceedings to recocer possession of land — Not available, as against heirs in possession of testator’s land, prior to Act 198, Public Acts 1881 —Nor would action of trespass lie for such holding under How. Stat. %8306 — This section, being penal in its nature, can have no retroactive effect — Demand of possession by purchaser from executors under power of sale in will, made prior to September 10,1881, when act 198 took effect, cannot be made a basis for a recovery under section 8806 — Possession by heirs prior to sale by executors being rightful, a demand for possession by the purah iser icas necessary before right of action would accrue under section 8306 for damages sustained after such sale.</p> <p>May 19, 1877, defendants’ testator died, being the owner of certain real estate, of which defendants, as his widow and heirs, took peaceable possession.</p> <p>March 18, 1880, his executors conveyed the land, under a power of sale contained in the will, to the plaintiff, who demanded possession of defendants on the twenty-sixth day of the same month, which was refused.</p> <p>November 30, 1880, defendants filed a bill to set aside the executors’ deed, the validity of which was affirmed, June 27, 1882, in the case of Tracy v. Murray, reported in 49 Mich. 35.</p> <p>March 27, 1882, plaintiff commenced summary proceedings before ■a commissioner to obtain possession of the land under How. Stat. § 8295, and obtained restitution of the premises, August 1, 1882.</p> <p>December 11, 1883, plaintiff commenced the present action of trespass under How. Stat. § 8306, and recovered a judgment. No notice to quit or demand of possession was given, except as stated.</p> <p>Held, that prior to the passage of Act 198, Session Laws of 1881, extending the remedy by summary proceedings to cases where heirs continue in possession of premises sold for the payment of debts, such proceedings would not lie against defendants, nor would they be liable under How. Stat. § 8306, for damages arising prior to September 10, 1881, when Act 198 took effect; and that section 5306, being penal in its nature, can have no retroactive effect.</p> <p>Held, further, that as defendants were holding possession under a ■claim of right, while the validity of the executors’ deed was an open ■and controverted question, such holding could not, under any circumstances, he made a wrongful one, and subject to penal consequences, by any act of theirs prior to the amendment of 1881 taking effect.</p> <p>I-Ield, further, that the demand of possession of date March 26, 1880, could not be made the basis of a recovery under a statute not then in existence; that there was no forcible entry or detainer of the premises by defendants prior to the sale by the executors, they having a right to use and occupy the land; and as such entry or detainer is not shown by the record after' such sale, a notice to quit, or demand of possession, was necessary before a right of action in trespass would accrue for damages sustained after such sale.</p>

<p>Error to St. Joseph. (Pealer, J.)</p> <p>The facts are stated in the opinion, and in head-note 1.</p>

<p>Error to Tuscola. (Wixson, J.)</p> <p>Attachment. Plaintiff brings error.</p> <p>The facts are stated in the opinion, and in head-note 1.</p>

(Hooker, J.) Bill filed to establish dower in land conveyed in fraud of such right. Defendants appeal. The facts are stated in the opinion.

<p>Error to Cass. (Smith, J.)</p> <p>Trover. Plaintiff brings error.</p> <p>The facts are •stated in the opinion, and in head-note 1.</p>

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

<p>Circuit court attachment — Return of writ without personal service — Premature if made prior to return-day — Judgment not supported, thereby.</p> <p>A circuit court writ of attachment was returned three days before the return-day, without personal service on the defendant, who was published in and a judgment rendered against him.</p> <p>Held, that the return was premature, and the judgment must be reversed.</p>

Exceptions before judgment from Oakland. (Sfcickney, J.) Respondent was' convicted under chapter 51, How. Stat., of being a disorderly person for failing to support his wife. The facts are stated in the opinion.

(Russell, J.) Respondent was convicted of keeping his saloon open on Thanksgiving day, and the conviction was affirmed in the circuit court on certiorari. The facts are stated in the opinion.

Exceptions before judgment from Mecosta. (Fuller, J.) Respondents were convicted of failing to keep their saloon closed on Sunday. The facts are stated in the .opinion, and in. head-note 1.

<p>Criminal law — Larceny—Omission of Christian name of owner of stolen properly from complaint and warrant, an irregularity — May be waived by respondent, and is curable by amendment under How. 8tat. sec. 9537 —In either case complaint sufficient, upon conviction, to support judgment — •Disagreement of jury — Nolle pros, by prosecuting attorney, and discharge of respondent, do not put him in jeopardy.</p> <p>1. The omission in a complaint for larceny in justice’s court, and in the warrant issued thereon, of the Christian name of the owner of the stolen property, is an irregularity which ■ respondent might waive, and which could be cured by amendment under How. Stat. § 9537. In either case the complaint would be sufficient, upon conviction, to support a judgment against the respondent.</p> <p>2. Respondent was tried for larceny in justice’s court and the jury disagreed and were discharged, whereupon the prosecuting attorney nolle prosequied the case, and re-arrested respondent for the same offense, who pleaded ihe former proceedings and discharge in bar.</p> <p>Held, that he had not been placed in jeopardy, and that the action of the prosecuting attorney, if taken in good faith, is not subject to criticism.</p>

<p>Negligence — Of plaintiff held clea/rly established and case properly talcen from the jury — See opinion for discussion of evidence — Duty of same person of mature years to exercise ordinary care, etc.</p> <p>1. Upon a review of the evidence (see opinion), the court held that plaintiff was negligent, and affirmed the action of the court below in taking the case from the jury.</p> <p>2. A person why pays little heed to his surroundings, and goes hither and thither in an absent-minded manner, or thinking only of some particular object and shutting his eyes to everything else, is guilty of an inattention sometimes dangerous to himself and quite as often to his neighbors, and of* a want of that ordinary care which the safety of society .requires all sane persons of mature age to exercise, and for which they are civilly responsible.</p>

<p>Bill in aid of execution — Judgment—Payment and. satisfaction of.</p> <p>In this case the Court find from (he evidence that the judgment upon which complainant bases his claim for relief was paid and satisfied, so far as defendants are concerned, before the filing of complainant’s bill, and reverse the decree in favor of complainant, and one is ordered to be entered vacating the execution levy, as prayed for by defendant Welte in his answer.</p>

<p>Error to Ionia. (Smith, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion, and in head-note 1.</p>

<p>Mandamus to Judge of Washtenaw county to vacate an order dismissing attachment proceedings.</p> <p>The facts are stated in the opinion.</p>

<p>Pensions — Contract for prosecuting claim, for — Compensation limited to ten dollars by act of Congress approved June SO, 1878 — Any excess paid agent may be recovered by pensioner as money received for his use — In suit by agent to recover further extra pay, pensioner may set-off and recover judgment for that already paid, — Evidence of an award by arbitrators in favor of plaintiff, properly excluded — The claim, being illegal under the federal statute, cannot be made the subject of arbitration — Such statute a beneficent one, and should be enforced by the courts for the protection of the soldier and his family.</p> <p>1. Plaintiff agreed with, defendant, some time in the year 1879, to assist him in prosecuting a claim for pension through claim agents at Washington with whom he had business relations, his compensation being left to defendant to fix, who told him to “ go on, and he would pay all expenses, and what was right for plaintiff’s services.” Defendant’s application was allowed, and he paid plaintiff the statutory fee of ten dollars for the Washington claim agents, taking a receipt therefor signed by plaintiff as their agent, who retained the $ 10, applying it, as he claimed, on indebtedness due him from them. Neither plaintiff nor defendant considered the ten dollars as including any compensation to plaintiff. Defendant paid plaintiff $150 for his services under the agreement, and plaintiff, claiming $300, recovered judgment for the remaining $150 in justice’s court, which was reversed on appeal, and a judgment rendered in favor of defendant for the $150 already paid to plaintiff, he claiming to recover said sum under his notice of set-off. No definite proof was made at the circuit of plaintiff’s expenses in prosecuting the pension claim. Evidence offered by plaintiff of an award in his favor by arbitrators of an additional $100 was excluded by the court.</p> <p>Held, that under the federal statutes ten dollars was all that plaintiff was entitled to recover for his services, and that a charge beyond that sum was against public policy, and the excess paid could be recovered by the defendant, as money received for his use by the plaintiff, under his notice of set-off.</p> <p>A On the trial of a suit to recover compensation in excess of that allowed by law for procuring a pension, evidence of an alleged award by arbitrators, to whom the claim was submitted by the parties by parol, was properly rejected by the court. The claim, being illegal under the federal statute, could not lawfully be made the subject of arbitration.</p> <p>3. The federal statute limiting the fee recoverable for obtaining a pension is a beneficent one, intended for the protection of the soldier and his family from unreasonable and unjust exactions on the part of agents who assume .to act in his interest in collecting his pension,’ and should be applied by the courts, when invoked, in such a manner as to afford the protection intended.</p>

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

<p>Motion for rehearing.</p> <p>The facts are stated in the opinion, and in the-report of the main case, found in 60’Mich. 56.</p>

<p>Appeal from Cass.i ' (Smith, J.)</p> <p>Bill filed to foreclose a mortgage. Defendant Burto* Bobbins appeals.</p> <p>The facts are stated in the opinion.</p>

Exceptions before judgment from Oakland. (Stickney, J.) Respondent was convicted under Act 178, Laws of 1S83, •of selling beer within a radius of two miles from the grounds or premises of the Michigan Military Academy, in Oakland •county. The facts are stated in the opinion.

<p>Exceptions — Do not apply to interlocutory proceedings in civil cases — Depositions — Defendant’s witness may be cross-examined for purpose of rebutting defendant’s anticipated case — Laches—Not chargeable to minor for neglecting to bring suit during minority to recover damages for personal injuries inflicted years before suit is brought — But jury should be cautioned to scrutinize the case closely — Proofs cannot be as full and reliable as if made soon after the occurrence — Suit for damages for permanent disability resulting, as alleged, from an assault made years prior to its commencement — Producing immediate and specified injuries and suffering, and confining plaintiff to his bed for several succeeding days — If jury find that he was in school on the days named, he cannot recover — School register showing such attendance not conclusive evidence — Yet if shown to have been made in the ordinary course of duty, in absence of evidence of having been tampered with, is entitled to great weight.</p> <p>1. Where after a ease was called for trial, and during such trial, plaintiff, with the defendant’s assent, was permitted to examine witnesses to ascertain the whereabouts of one of his witnesses who had suddenly absented herself, for the purpose, as alleged, of securing her presence at such trial, which was secured and her testimony taken, and the defendant assigns as error the action of the court in permitting said witnesses to be examined in the manner stated,—</p> <p>Held, that the questions thus presented do not properly come before the Court, as exceptions in civil cases do not apply to interlocutory disputes.</p> <p>2. In taking the deposition of a witness in behalf of the defendant, the plaintiff, on cross-examination, elicited testimony which was offered on the trial in rebuttal of defendant’s case.</p> <p>Neld, that there would be no other way to examine an absent witness, if it could not be done by anticipation, as it would be too late to take his deposition after the trial commenced; and that it was proper to examine such witness fully on all parts of the case, whether rebutting or direct.</p> <p>3. Plaintiff, soon after attaining his majority, sued defendant to recover damages for an assault and battery committed upon him by defendant when plaintiff was twelve years old.</p> <p>Neld, that defendant’s request (see note, page 297) was properly refused; that while it was proper for the court to caution the jury more fully than was done upon the necessity of scrutinizing the case very closely, because from lapse of time the proofs could not be as full or reliable as if made soon after the occurrence, yet the plaintiff, while having the burden of proof 'to establish his case, with all the additional weight which such delay-cast upon him, could not be treated-as at fault for not bringing suit when under disability.</p> <p>4. Plaintiff sued defendant to recover damages for an assault and battery committed upon him some years previous, producing, as alleged, specified injuries at once, and such as led to immediate severe suffering and disability, of which the ultimate mischief complained of was a direct result, and his case, as made out by his witnesses, was confined to such theory, their testimony tending to show that plaintiff was confined to his bed the day after the assault, and for some days thereafter. Defendant produced in evidence certain school rolls showing plaintiff’s presence at school on the day after the injury, and on several days, when he and some of his witnesses testified that he was in bed.</p> <p>Held, that the court should have iustructed the jury that if plaintiff attended school as shown by said rolls he could not recover.</p> <p>Held, further, that while such rolls were not conclusive in themselves as against all other evidence, yet when shown to have been made in the ordinary course of duty, in the absence of any testimony that they had been tampered with, they were entitled to great weight.</p>

<p>School-district board — Contract with teacher — If signed by a majority of the board, is presumptively valid on Us face — And admissible in evidence without further proof — Official character of members signing may be shown by parol — Payment by the assessor, without objection, of orders drawn on him by the director and moderator for salary of teacher— Estops the district from denying validity of contract under which suck services were rendered — Amounts to a ratification of the contract — Direct proceedings by the district board not essential to such ratification — May be shown by acts of recognition or acts inconsistent with Us repudiation— Hazen v. Lerche, 47 Mich. 626, distinguished.</p> <p>l.|Plaintiff entered into a written contract with defendant, in the usual form, to teach its school for twenty weeks. It was signed by the director and moderator unofficially, and by plaintiff as teacher, who taught for ten weeks, and was paid eighty dollars by the assessor, without objection, on orders drawn on that officer in the usual form,and then discharged without cause, as he claims, by the district officers. At the expiration of the term contracted for, plaintiff brought suit on the contract to recover pay for the balance due for twenty weeks’ servibes. On the trial, after testifying to the official character of the parties who signed the contract, it was offered in evidence, and objected to by defendant in the absence of proof that it was authorized by a resolution of the district board, which objection was overruled, the court holding that the contract was prima facie evidence of its due execution by the officers signing same. Plaintiff introduced in evidence his certificate from the proper officer, and made proof tending to show his discharge without canse and his readiness to perform his contract, while defendant introduced testimony tending to show plaintiff’s voluntary abandonment ofjthe school and his unfitness and incompetency as a teacher, which issue was left to the jury, with instructions that a finding for defendant thereon would defeat plaintiff’s recovery, except for the time actually taught. The jury rendered a general verdict for the plaintiff for tha full amount claimed.</p> <p>Held, that it was not imperative that the contract should be signed by all of the district officers, and that a contract signed by a majority of the district board is presumptively valid on its face, and admissible in evidence without further proof.</p> <p>2. It is competent on the trial of a suit founded on a contract with a school district, claimed to have been signed by a- majority of its district board, to show by parol who constituted such board.</p> <p>3. A contract with a legally qualified teacher was signed by the director and moderator, under which he was allowed to teach for ten weeks, and received payments on account of his services from the assessor, without objection on the part of that officer, on orders drawn in the usual manner, when he was discharged by thé.district officers without cause, as found by the jury.</p> <p>Held, in a suit brought by the teacher on the contract to recover pay for the/wK term of service contracted for, that the defendant was estopped by the action of its officers from questioning the validity of the contract, they having fully ratified and confirmed it.</p> <p>Held, further, that such ratification need not be evidenced by a direct proceeding to that end, but may be shown indirectly by acts of recognition or acquiescence, or acts inconsistent with repudiation or disapproval. Scott v. F. M. Church of Jackson, 50 Mich. 532, and cases cited.</p> <p>Held, further, that the drawing and payment of the orders without objection was a sufficient recognition and approval of the contract, which was acted upon by all parties interested until other controversies arose, when it was too late to object to the want of formalities in making and executing the same.</p> <p>4. The case of Hazen v. Lerche, 47 Mich. 626, is distinguished from the one at bar, it being suggested that it might have been decisive if the assessor had refused payment of the first order drawn in favor of plaintiff.</p>

<p>Error to Kent. (Montgomery, J.)</p> <p>Case. Plaintiff brings error.</p> <p>The facts are ¡stated in the head-note.</p>

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

Case made from Cass. (Smith, J.) Ejectment. Plaintiff brings error. The facts ■ are stated in the opinion and head-note.

<p>Error to Wayne. (Jennison, J.)</p> <p>Assumpsit. Defendants bring error.</p> <p>The facts are stated in the opinion, and in head-note 1.</p>

<p>Insurance — Consiruction of policy — Agreement of holder to carry an aggregate insurance equal to four-fifths of the value of the property — And in default to become a co-insurer for deficit — Makes him liable as a co-insurer for the difference between the aggregate insurance on the property and four-fifths of its value — Co-insurers—Are persons issuing policies on the same property — Are never jointly liable — But their proportion of liability depends on amount which each insures.</p> <p>1. Defendant issued a policy for five thousand dollars on plaintiffs’ stock of lumber, conditioned that plaintiffs should carry a total insurance equal to four-fifths of its actual cash value, and on failing so to do should become co-insurers to the extent of the deficit. Plaintiffs made default, and in a suit to recover for a partial loss defendant was held liable as a co-insurer with plaintiffs, up to the amount of its policy, for the amount of such deficit.</p> <p>Held, that plaintiffs were bound either to procure from others, or to carry themselves, insurance aggregating, with that carried by defendant, four-fifths of the value of the insured property.</p> <p>Held, further, that the word “co-insurers,” as used in this clause of the policy, meant fellow-insurers, and was desigbedio place plaintiffs on the same footing with other insurers of the lumber, who contributed ratably in case of loss J^that the diffei*SEBe, .between the actual insurance and four-fifths of the.yafue of‘the lliqjber tj^is the amount insured by pl^inÉffs, and for j^hir.h thewb^eafilh,"in the lan-' guage of the policy, “ co-insurers. Jt*</p> <p>2. All persons issuiag-polibias on the same property are known as co-insurers, andihey are never jointly liable,but their proportion of liability depends on the amount which each insures.</p> <p>[Brief confined to a discussion of the true construction to be given to the policy. No authorities cited. — Reporter.]</p>

(Chambers, J.) Certiorari to review the order of a circuit judge affirming a commissioner’s order dissolving an attachment. Attachment debtor sues out writ. The facts are stated in the opinion, and in head-note 1.

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

<p>Justice’s judgment — Transcript of — Affidavit for under How. Stat. sea. 69j7, must be made by the party in whose favor judgment was rendered, or his attorney — His administrator cannot make same — Nor remove judgment to circuit court by transcript — Authority of such attorney to make said affidavit is revoked by death of client — Act 173, Laws of 1885, authorizes the party, his assignee, or the attorney of eithm' of the parties to make such affidavit — Transcript of judgment for twenty dollars or under, exclusive of costs — May be forwarded by justice homing control of judgment to justice in any other county — And docketed by him, and has same force as if rendered by such last-named justice — Section one of act seems to be incomplete — See note, p. 85j.</p> <p>A justice’s judgment cannot be removed by transcript to the circuit court under How. Stat. § 6947, after the death of the party in whoge favor it was rendered, by his administrator. The affidavit is required to be made by such party or his attorney, is jurisdictional, and cannot be made by the administrator of his estate; nor can it by the attorney who acted for the deceased in obtaining such judgment, for death terminates the relation, and revokes the authority of the attorney.</p>

<p>Error to Genesee. (Newton, J.)</p> <p>Case. Defendants bring error.</p> <p>The facts are stated in the opinion and head-notes.</p>

<p>Error to Bay. (G-reen, J.)</p> <p>Trover. Plaintiff brings error.</p> <p>The facts are stated in the opinion and head-notes.</p>

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

Mandamus to a town treasurer to compel the payment of warrants drawn on him, in favor of the assessor of a school district, by the acting director and moderator. The facts-are stated in the opinion, and in head-note 1.

<p>Case made after judgment from Wayne. (Chambers, 3.)</p> <p>Assumpsit. Defendant assigns error.</p> <p>The facts are stated in the opinion.</p>

<p>Ooniract — With party so drunk as not to know what he is doing — Voidable 1 only — May be ratified when he becomes sober.</p> <p>A contract entered into by a party who is so drunk as not to know what he is doing is voidable only, and may be ratified by him on becoming sober. [See authorities cited in the opinion.]</p>

<p>Negligence — Defective cattle-guard — Province of the jury-to choose between antagonistic testimony.</p> <p>On a review of this case (see opinion), held, that it was one eminently proper to be' submitted to a jury.</p>

<p>Copartners — Individual note of one partner — If discounted for benefit of the • ■ firm — Such partner may secure the indorser by an assignment of firm accounts infirm name — 'Whetherso used is a question f or the jury.</p> <p>A member of a firm, desiring to raise $3,000 for partnership purposes, and having full authority to use all lawful means to that end, induced the defendant to indorse the individual note of such copartner, who, to secure him from loss, assigned to him in the firm name certain accounts and other dioses in action due the copartnership, which was then insolvent. Soon after the other partner, in order to secure and pay plaintiff, a creditor of the firm,"assigned to him in the firm name all of the firm accounts, including those formerly transferred to defendant, all of w.liich were insufficient to pay plaintiff’s demand. Defendant collected $1,723 on the accounts assigned to him, and plaintiff, claiming such assignment to be fraudulent and made to secure a private debt of one copartner, brought suit against defendant to recover the money so collected, as received for the use of plaintiff.</p> <p>Held, that if the money was raised to carry on the firm business, and was so med, the assignment to defendant was valid, and that this is a question for the jury when the testimony is conflicting, as in this case.</p>

(Stevens, J.) Bill filed for an accounting, etc. Complainant appeals. The facts are stated in opinion and summarized in head-note.

<p>Treatment — Judgment for entire premises, where plaintiff establishes title to an undivided interest, will be set aside — Tax titles — Statute of limitations— Ten years' possession protects occupant whether deeds good or bad — Purchasers take no more than deeds give them, if seasonably attacked — But after entering into possession all attacks must by made within statutory period.</p> <p>1. Where in an action of ejectment plaintiff establishes his title to an undioided third of the land, a judgment in his favor for the entire premises cannot be sustained.</p> <p>3. The statute protects parties entering under tax titles, whether good or bad, after ten years’ occupancy.</p> <p>5. Purchasers of tax titles take no more than the deeds give them, provided they are seasonably attacked; but after taking possession under them they have a right to require all such attacks to be made within the statutory period, and there is no reason for importing into the statute a new condition, and for saying that for some infirmities the deeds shall be assailable for a longer period than for others.</p>

(Chipman, J.) Assumpsit. Defendant Callaghan brings error. The facts are stated in the opinion and summarized in the head-notes.

<p>Error to Wayne. (Speed, J.)</p> <p>Replevin. Defendant brings error.</p> <p>Tbe facts are stated in the opinion.</p>

(Smith, J.) Action on replevin bond. Defendants bring error. The facts are stated in the opinion and summarized in head-note 1.

Case made from Eaton. (Hooker, J.) Action on bond. Defendants bring error. The facts are stated in the opinion and summarized in headnote.

<p>Married woman — May contract for medical attendance when deserted by her husband — And is liable to suit therefor — Such services are in 1cm “ necessaries,” the same as food and clothing' — Statutes of Michigan have always made liberal provisions to enable deserted wives to act for themselves — And since they have been given control of their own rights, they have had general power to contract concerning their own property— And to sue for all causes of action — And are liable for their torts — Husband who deserts his family, doing nothing for their support — Will be regarded as refusing to perform his wife’s contracts for necessa/ries within the meaning of How. Stat. sec. 6298 — Physician and Burgeon — Where maltreatment is claimed of a fractured limb — Jury cannot be allowed to• determine the question by an inspection of the limb — Trial court is justified in refusing such inspection, even if requested by the injured party.</p> <p>1. Where a physician treated a married woman, whose husband had deserted her, professionally, and the evidence of contract relations between the parties was sufficient, but her legal capacity to contract for such services was denied,—</p> <p>Held, that no sensible line can be drawn between such a contract and one for food and clothing, and that the same was binding upon her.</p> <p>3. The statutes of Michigan, prior to the enlargement by legislation of the business rights of married women, contained liberal provisions to enable them, when deserted by their husbands, to act for themselves;-and since their rights have been put under their own control-they have had general power to contract concerning their own property, and have been authorized to sue singly for all causes of action, and made liable to suit for their torts (Campbell v. White, 22 Mich. 178; Paul v. Roberts, 50 Id. 611); and while not possessing general power to-mate agreements of all kinds, they must necessarily be able to make-contracts concerning what it is essential to their safety and security to procure.</p> <p>3. It is not going out of the way to regard a husband who deserts his ' family, and does nothing for their support, as refusing to perform the contracts of his wife for necessaries, within the meaning of How. Stat. § 6298.</p> <p>4. It is not competent to allow a jury to determine for itself whether a physician’s course in the treatment of a fractured limb has been proper or improper, and the trial court is'fully justified in refusing to permit the jury to inspect the limb for that purpose, even when-.such inspection is asked for by the injured party.</p>

<p>Error to "Wayne. (Jennison, J.)</p> <p>Replevin. Defendants bring error.</p> <p>'The facts are stated in the opinion.</p>

<p>Error to Livingston. (Joslin, J.)</p> <p>Trover for attached property. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Shiawassee. (Newton, J.)</p> <p>Bill to set aside deed and assignment of mortgage as fraudulent. Defendants appeal.</p>

<p>Practice — Failure of plaintiff to make a case — Jury should he instructed to find for defendant.</p> <p>Where upon the undisputed testimony the plaintiff fails to make a case, the court should direct a verdict for the defendant.</p>

<p>Arrest for misdemeanor must be by warrant issued on a complaint duly made — Or by an officer or bystander who witnesses the offense — False imprisonment — Measure of damages — See page Jf53 of opinion for statement of the law regulating same — Actual and exemplary damages.</p> <p> (See head-note 3.) </p> <p>1. No arrest can be made in this State for a misdemeanor unless by warrant upon complaint duly made, or by an officer or bystander who actually sees the offense which constitutes the misdemeanor.</p> <p>2. Eor a statement of the law regulating the measure of damages in an action for false imprisonment, see page 453 of opinion.</p> <p>3. Actual damages are those which the injured party is entitled to recover for wrongs received and injuries done when none were intended; but in cases where the injuries are inflicted intentionally, or occur through carelessness or negligence amounting to a wrong so reckless and wanton as to be without palliation or excuse, further damages are frequently and properly given, and have been variously designated as “exemplary,” “punitory,” “vindictive,” “compensatory,” or “added” damages. The important question always is, in every case, was the character of the wrong suffered, or injury sustained, such as may be lawfully atoned for or compensated in money.</p>

<p>Contract for manufacture and sale of lumber — At an agreed price per thousand feet — If inspector is agreed on, delivery of the lumber on the dock ready for shipment passes title to vendee — Written contract — Containing uncertain clause capable of being made certain by parol evidence — If its terms do not prohibit meaning claimed by respective parties — Subsequent conversations between them admissible to explain its intended bearing on contract — If such clause was added to the contract, after its execution by defendant, by plaintiff — Whose authority is denied by defendant — Evidence of subsequent conversations between the parties regarding such disputed clause — -Held admissible, as tending to show settlement and interpretation of the question — And ratification by defendant of plaintiff’s act —Suit for price of lumber sold and delivered by plaintiff to defendant— In which the lumber is attached as the property of defendant — And plaintiff indemnifies the officer and sells the lumber — Amount realised will be treated as a partial payment on plaintiff's claim.</p> <p>1. Plaintiff agreed to manufacture and deliver on the dock, from logs owned by him, a quantity of pine lumber, at an agreed price per thousand feet, payable as follows: Cost of freighting logs to mill on the first of each month, as logs were delivered; saw bill as lumber was sawed and delivered on the dock at Tawas, Michigan; and the balance at ninety days from date of shipment of said lumber, which was to be manufactured according to defendant’s directions, and cut in dimensions to suit its trade at Cleveland, Ohio. An inspector was agreed upon to measure the lumber.</p> <p>Held, that the piling on the dock was intended by both parties as a. delivery of the lumber to the defendant, who could thereafter ship it without reference to plaintiff. Sandler v. Bresnaham, 54 Mich. 343.</p> <p>3. Where a written contract contains an uncertain clause capable of being made certain by parol evidence, and its terms do not prohibit the meaning claimed by the respective parties, evidence of subsequent conversations between them is admissible to explain Us intended, bearing upon the contract.</p> <p>3. Where, after the execution of a written contract by one party, the other interlined an additional agreement to be performed by the party so signing, and in a suit involving the rights of the parties under the contract evidence is offered of subsequent conversations and agreements between them regarding said disputed clause,—</p> <p>Held, that such evidence was admissible, as tending to show a final settlement and interpretation by the parties of an open and disputed question, not settled in the contract as originally executed by the defendant, the question of the authority to make the change, and of its subsequent ratification by the defendant, being in issue.</p> <p>4. A plaintiff brought suit for the price agreed to be paid by the defendant for lumber to be manufactured and delivered at an agreed price per thousand feet, and attached a quantity of such lumber, the title to which he claimed had passed to defendant by such delivery. After such seizure plaintiff indemnified the sheriff, and sold the lumber at less than the contract price.</p> <p>Held, that the amount realized on such sale must be treated as a partial payment in reduction of plaintiff’s claim.</p>

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

<p>Legacy — Extension of time of payment by adult legatee — Releases sureties of residua/ry legatee, unless made with, their consent — Such, extension by infant legatee will not have like effect, unless ratified after attaining his majority —Evidence—Of age by church record of baptism, — If received without objection, cannot be assailed as incompetentin appellate court — Identity of pa/rtiesmust be shown — And this is a question for the jury — Such record, wJien admissible, is evidence of date of baptism, but not of birth — If infant legatee retains note, received in payment of legacy, after arriving at full age — And in suit on residuary legatee’s bond his sureties' claim to be ■ released thereby — Real question is as to ratification by infant of original arrangement — Such ratification will relate back to time note was taken and discharge sureties — Ratification always a question of intent — If no express ratification of infant’s act is shown — Or act done in reliance upon or in affirmation of the contract for extension — Relay in enforcing claim against sureties on bond will not amount to such ratification, if no elements of estoppel intervene — Executed contract — Confirmation of — Question as to what acts will amount to, one of intention — And should be submitted to the jury.</p> <p>1. An extension of the time for the payment of a matured legacy, hy a legatee oí full age, by accepting the note of the executor therefor payable at a future date, releases the sureties on the bond of a residuary legatee, unless such extension is granted with their consent. Such action by an infant legatee is not binding on him, and will not release such sureties, unless ratified hy him after arriving at/«¿¿age.</p> <p>S. Where a church record was offered and received in evidence, without objection, for'the purpose of establishing the age of a party, objections to its competency, made for the first time in the appellate court, will not be considered. Tn such a case proof of the identity of the parties is essential, and it is error to refuse to submit that question to the jury.</p> <p>8. A church record of baptism, when admissible in evidence, is evidence of the date of the baptism, but not of the birth, of the party baptized, though stated therein.</p> <p>4. Where an infant legatee accepts the note of the executor in payment of a legacy then due and payable, thereby extending the time for payment, and holds the note after attaining her majority,—</p> <p>Held, in a suit brought' on the residuary legatee’s bond, in which the sureties claimed to be released from liability by such extension, that the real question was as to the ratification by the infant of the arrangement by which the note was given after she arrived at full age, which ratification, if made, would relate back to the date of the giving of the note, and so affect the undertaking of the sureties as to discharge them from liability.</p> <p>6. Ratification always resolves itself into a question of intent, and where no express ratification is shown of the action of an infant legatee in extending the time for the payment ot a matured legacy, and no act done in reliance upon or in affirmance of the contract by which such extension was made, mere delay in enforcing the infant’s claim against the sureties on the residuary legatee’s bond cannot be construed into such ratification, where no elements of estoppel intervene, especially where the infant receives no new consideration nor retains any arising out of the original transaction.</p> <p>6. While it has been held that in order to confirm an executed contract it is only necessary to show a distinct acknowledgment or act indicating an intention to be bound thereby, and that if an infant, after attaining his majority, continues to occupy a position only explicable on the supposition that he intends to stand by such a contract he will be considered as having ratified the same, still the question as to what acts will or will not amount to a confirmation is one of intention, proper to be submitted to and determined by a jury under proper instructions from the court.</p>

<p>Affidavit for attachment — Must state nature of contract on which debt is claimed to be due — Omission fatal to jurisdiction of the court.</p> <p>An affidavit in attachment must state the character of the contract on which the debt sued for is claimed to be due, — whether express or implied. This is a statutory requirement, is jurisdictional, and its omission is fatal to the attachment proceedings.</p>

(Hooker, J.)' Bill filed to compel conveyance of defendant’s apparent title to land. Defendants Case appeal. The facts are stated in the opinion.

<p>Motion for retaxation of costs.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Alpena. (Emerick, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts am stated in the opinion.</p>

<p>Bond — Discharge of principal by payment or satisfaction of debt releases sureties — Boiden.ee of such payment or satisfaction, admissible in suit on bond against surety .alone — Andthat such suit is being prosecuted in the interest of the principal — In such suit, where declaration is against surety as such — Plaintiff cannot show on rebuttal that surety was in fact the real principal and party in interest— Without amending his declaration so as to cover such alleged change — Parol evidence — Inadmissible, in any case, to change the relative character of parties to a bond.</p> <p>1. In a suit by a sheriff on an indemnity bond against a surety alone, the defendant offered to show that his principals had paid the plaintiff the amount due him on the obligation, and- arranged with him not to join them as co-defendants in said suit, but to prosecute same against the defendant to reimburse them for the money thus paid.</p> <p>Held, that the evidence was admissible as tending to sustain the clnim of defendant that, the principals being discharged by such agreement and payment, the defendant was also released from liability on the bond.</p> <p>2. Where the obligee in a suit on an indemnity bond declares in the usual form against a surety, without in any way averring that he is sued in any other capacity than as such surety, it is not competent in any ■ case for the plaintiff, on rebuttal, to shift his claim and, without ameuding his declaration, show that the defendant was really the principal aud party in interest in the transaction and bond.</p> <p>8. Parol evidence is inadmissible, in any case, to change the relative charneler of the parties to a bond; so held in a suit where it was sought to be shown that the principals named therein really signed as sureties.</p> <p>4. The rule that parol evidence cannot be given to contradict or vary the terms of a written instrument should he rigidly enforced in the case of bonds, if at all.</p>

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

<p>Certiorari to highway commissioner to review proceedings in laying out a highway.</p> <p>The facts are stated in the opinion.</p>

(Hooker, J.) Bill filed to compel conveyance of right to use an invention. Defendants appeal. The facts are stated in the opinion.

<p>Taxes — Assessment roll — Supervisor’s certificate — Omission of clause, “and not at thepriaeit would sell for at forced or auction sale” — A fatal defeat, invalidating levy and sale by town treasurer — Which cannotbelegalized by subsequent curative legislation— Vested rights having attached.</p> <p>1. The omission, from a supervisor’s certificate of assessment of the clause, “ and not at the price it would sell for at forced or auction sale,” invalidates the proceedings taken by the town treasurer under his warrant for the forced collection oE the taxes levied.</p> <p>2. Where under such a defective roll the treasurer sold personal property to satisfy a tax assessed thereon, and after such sale, and the commencement of a suit by the owner of the property against the township to recover the money realized on such sale, the Legislature passed an act legalizing said assessment roll, and the acts of the town treasurer thereunder,—</p> <p>Held, that the rights of the parties had become vested prior to such curative legislation, and were not affected thereby.</p> <p>[Cite authorities referred to-in opinion. — Reporter.]</p>

<p>Ejectment — Parties— Where homestead character and occupancy of premises unquestioned— Wife a necessary party — Her nonjoinder a fatal omission — Attachment lien — Does not attach to land until copy of writ is deposited in office of register of deeds — Pursuant to How. Stat. sec. 7995— Until such lien is secured, in- absence of personal service of writ or voluntary appearance of defendants — A judgment in the attachment suit is unauthorized — Lien not defeated by subsequent occupancy of land as a homestead — Levy of attachment on land formerly occupied as a homestead — During the absence of the owners therefrom — They may resume possession, before a copy of the writ is deposited with the register of deeds —And, as no lien has attached, may claim their homestead exemptions.</p> <p>1. In an ejectment suit, where the homestead character and occupancy of the premises is unquestioned, the wife is a necessary party, and> her non-joinder is fatal to the proceeding.</p> <p>2. The deposit in the office of the register of deeds of the proper county of a certified copy of a writ of attachment,with a description of the-land levied upon, pursuant to How. Stat. § 7995,, is a condition precedent to the establishment of a lien under such seizure; and until such lien is secured a judgment is unauthorized in the suit, in the-absence of personal service of the writ or the voluntary appearance-of the defendants.</p> <p>3. An attachment lien will not be defeated by the subsequent occupancy of the land as a homestead, although no provision be made for ascertaining the homestead right until an execution is sued out. Avery v. Stephens, 48 Mich. 246.</p> <p>4. Where, during the absence of a husband and wife from their homestead, an attachment was levied thereon, and the owners resumed1 possession before the deposit in the office of the register of deeds of the certified copy of the writ and description of the attached property required by How. Stat. § 7995,—</p> <p>Held, that there was no existing lien on the land, and therefore nothing to prevent such homestead occupancy and exemption claim thereunder.</p> <p>[Briefs of counsel contain a full discussion of the question of abandonment of a homestead, and of other points not decided by the Court. — Beporter.]</p>

<p>Chattel mortgage — Given to secure partnership debt — Will not lose priority, by failure of mortgagee to renew same, over second, mortgage — Given on dissolution of firm to retiring partner, for individual debt, by partner who succeeds to assets and assumes liabilities of the firm — Stipulation in mortgage that it is given subject to prior mortgage — Benders filing and renewal unnecessary to maintain such priority— Which can never be affected except by agreement of the parties — Or payment of first mortgage — Such stipulation runs with the mortgage — Is intended to tales the place of filing, as between parties bound thereby when made — Or who-become subsequently interested in the mortgaged property — Briggs v. Mette, 42 Mich. 12, distinguished, from case at bar.</p> <p>Unos and Peter Flory mortgaged certain partnership property to-defendant to secure the purchase money, and soon afterwards Unos gave defendant a second mortgage on other firm property to secure a partnership debt, which second mortgage was kept alive by proper-renewals. On April 1, 1881, the firm was dissolved, Peter Flory taking the joint property and assuming the firm debts: and on Nov. 28, 1882, he mortgaged to defendant the property covered by the two-prior mortgages, for $500, being the sum due thereon, which mortgage was intended as additional security therefor. This mortgage was never renewed, but all three were filed in the proper office. December 1, 1882, Peter mortgaged the same property to Enos to secure a note due him, which mortgage was duly filed and thereafter renewed, and in which the mortgagor covenanted that the property was free from all incumbrances, except the $500 mortgage held by the defendant. In April, 1884, defendant sold the property upon his last two mortgages, and applied the proceeds in payment of his debt." Nov. 24, 1884, Enos assigned his mortgage to plaintiff, without consideration, who brought this suit, claiming priority for said mortgage on account of defendant’s failure to renew his $500 mortgage. Upon this state of facts the Court held:</p> <p>1. A second mortgagee whose mortgage was taken subject to a prior mortgage duly filed, given to secure a debt of a firm of which he was then a member, cannot claim priority for a mortgage executed to him by the other copartner by reason of the non-renewal of the prior mortgage. No such advantage was ever intended by the statute, under such circumstances, its object being to prevent, not facilitate, fraud.</p> <p>2. Where a mortgage contains a clause showing that it is made subject to a prior one, filing is unnecessary to maintain such priority, which can never be secured for the second mortgage, as against the first, except by the agreement of the parties. Such a stipulation runs with the mortgage; is binding upon the parties, and continues during the life of the security; and it is intended to take the place of the statutory filing, as between all parties bound thereby when it is made, or who become subsequently interested in it or the mortgaged property.</p> <p>3. The Court distinguishes the case of Briggs v. Mette, 42 Mich. 12, from the one at bar. (See opinion pp. 527-8.)</p>

<p>Negligence — Duty of city in regard to streets, and its statutory liability, discussed — Proof of oral instructions to street commissioner at open session of council inadmissible — Municipal corporation may ratify unauthorized acts and contracts of its agents and officers — If it might legally'have authorized them, in first instance — Mcccept where mode of contracting operates as a limitation upon power to contract.</p> <p>1. Upon the testimony in this case (see opinion, and particularly pages-534- 5), it was error for the circuit judge to refuse to give defendant’s fourth, seventh, and ninth requests to the jury. (See opinion, pp. 535- 6, for requests.)</p> <p>2. Where the charter of a city required the hoard of public works to keep a record of its proceedings, evidence of oralinstructions in open session to the street commissioner, regarding the construction of a drain claimed by the plaintiff to have been improperly built, and which were not recorded, is inadmissible.</p> <p>3. A municipal corporation may ratify the unauthorized acts and contracts of its agents and officers which the corporation might legally have authorized in thejw’si instance, subject to exception where the mode of contracting operates as a limitation upon the power to contract.</p>

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

<p>Error to Mecosta. (Fuller, J.)</p> <p>Assumpsit. Defendants bring error.</p> <p>The facts are stated in the opinion and summarized in head-note 1.</p>

<p>Trespass — Declaration containing no distinct allegation of title — And describe ing close as forty acres of land — Question of possession only involved— Evidence that acts complained of were committed by defendant as path-master — In plowing and scraping on side of highway adjoining plaintiff’s land — Fmx purpose of .repairing the road — Benders it doubtful if plaintiff is entitled to recover on his own showing — White land, as described, technically covers to center of highway — Good, pleading requires declaration, to locate the alleged trespass in the highway— Whether such location does not render it necessary for him to show the acts unlawful, Query — His possession being subject to public easement — Defendant had the right to show that he was acting officially— Which was a good defense and, as the case stood, entitled him, to a verdict.</p> <p>1. Plaintiff sued defendant in justice’s court for an alleged trespass on forty acres of land specifically described in bis declaration, which contained no distinct allegation of title. Defendant pleaded the general issue, and on thejtrial was allowed to give notice that the alleged! trespass was. committed by him as path-master of the district in which the land was situated. On the trial in the circuit court defendant, was confined to his plea of the general issue, and it appeared from the testimony that the acts complained of consisted in plowing and! scraping on the side of the road next to plaintiff’s land for the purpose of putting the highway in better repair for travel. The circuit judge ruled that this defense could not be entertained under the pleadings, and directed a verdict for nominal damages in favor of the plaintiff.</p> <p>Held, error; that it is doubtful if, under his declaration and the evidence introduced under it, plaintiff was entitled to recover on his own showing; that while his land, as described, technically embraced the part of the highway where the excavations were made, good pleading required that the declaration should advise defendant that the trespass complained of was in a public highway, instead of alleging generally the destruction of corn and grass upon a certain government description, leading naturally to the conclusion that it. was committed upon the inclosed and cultivated land of the plaintiff.1</p> <p>Held, further, that when plaintiff’s evidence located the acts complained of in the highway, the query arises if it was not necessary for him to go further and show that the acts were unlawful, his possession, as shown, being subject to the public easement.</p> <p>Held,, further, that in any event defendant had the right to make the defense he did, which was a good one, and that, as the case stood, the verdict should have been for the defendant.</p> <p>2. Where in an action for trespass to lands the declaration contains no distinct allegation of title in the plaintiff, the possession only is in issue. Vandoozer v. Dayton, 45 Mich. 250.</p>

<p>Appeal from St. Clair. (Stevens, J.)</p> <p>Bill for divorce. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Contract for sale of stock of goods — Sufficiently identifies property by reference to an incoice of same — Giving date when.taken and place of deposit —And describing store in which goods are kepi — With stipulation that additions to the stock since the invoice are covered by purchase — Ordinarily, a sale of all the goods in a specified store is a sufficient description — Purchase price and terms of payment — Sufficiently fixed by providing for deducting from amount of invoice and additions to stock —Cash on hand at time of sale — And sum due vendee and his brother from vendor, estimated at $12,000, to be ascertained definitely in thirty days if possible — Balance to be paid in specified sums at expiration of fixed periods — Vigilant creditors — May secure payment of just debt, though aware that such action may deprive other creditors of their full demands — Bvidence—Of all that was said and done between parties —At and before alleged fraudulent sale — Admissible to establish or rebut charge of fraud — Object is not to vary terms of written contract — But to show good faith of transaction — Delivery of goods sold— By vendor and vendee joining in telegram and letter to clerks in charge of vendor’s store — Notifying them, of sale — And directing them to open new cash account — And secure transfer to vendee of lease of store and of policies of insurance on goods — All of which was done — Coupled with delivery of store hey to vendee — Sufficient under statute of frauds — Burden oñ attaching creditor to show sale fraudulent — If delivery not shown, sale conclusively void, as to creditors, unless shown to have been made in good faith and without intent to defraud them— Vendor may state whether sale was absolute — And if there were any reservations outside of it— And either pa/rty may testify as to his intent in entering into the contract —Assignment for benefit of creditors — Attachment made on afternoon of day of assignment, but after assignee had tabeen possession of a portion of assigned property, is void — In such a case fractions of a day will be counted — Assignee bias the right to recover all of the assigned property which any creditor might reacbi — Chancery court of proper county has supervisory control of assignment and matters relating thereto— With power to direct suits for recovery of all property claimed by third persons —If trust has not failed, receiver succeeds to powers of assignee— Creditors cannot sue in either case.</p> <p>1. Plaintiff purchased of his brother certain personal property, described in the contract as the vendor’s entire stock in trade, including all store furniture and fixtures, and notes and accounts belonging to said trade, and all the property in said store — locating it geographically — belonging to the vendee or connected with said trade, excepting that portion reserved to the vendor in an invoice of a certain date, deposited in the safe in said store. The sale was to take effect as of the opening of business on the morning of the day it was made, and the cash then on hand was reserved from the sale. The purchase price was fixed, and its payment provided for, as follows:</p> <p>a — Plaintiff was to be charge’d with the amount of the invoice, less the excepted articles; also with all additions to the stock, at cost prices, and with the expenses of conducting the business since the date of the invoice.</p> <p>b — Prom this aggregate sum was to be deducted the cash on hand on opening the new business, and the amount due plaintiff and his brother from the vendor, estimated at $12,000, which was to be definitely ascertained within the next thirty days, if possible.</p> <p>c — The balance found due the vendor was to be paid in cash, in specified payments as to amount and time; and plaintiff agreed to pay the amount found to be due his brother from the vendor within five years from the date of the contract, which was signed by the three brothers, each of whom released to the others all claims for debts, dues, etc.</p> <p>Creditors of the vendor attached the goods, and in a suit involving the validity of the sale the contract was objected to as void as to creditors in that it transferred an uncertain amount of property for an uncertain consideration, and tied up the property, and the payment therefor, in a manner necessarily to hinder and delay other creditors in the collection of their debts.</p> <p>Held, that the contract was not open to the objections urged against it; that it is sufficiently definite as to the property sold, referring to an invoice identified as to date and place where deposited, and that it can be readily ascertained what goods have been added to the invoiced stock since its date.</p> <p>Held, further, that a sale of all the goods and fixtures in the store, without specifying or enumerating them, would be definite enough ordinarily; and in this case the reservations and exceptions made from the stock, and the notes and accounts excepted, can be ascertained by reference to the invoice.</p> <p>Held, further, that the consideration agreed tp be paid forthe goods and the terms of payment were not uncertain, and that to require, in such a case, that a complete inventory be made, and a computation of the exact amount due from the vendor to his brothers, before a valid sale of the goods could be made as payment of such indebtedness, would be adding to the requirements of the statute.</p> <p>2. A creditor, seeking the payment of a just debt from a debtor known to be in failing circumstances, has a right to secure his pay, even though aware that the consequences of such payment would leave other creditors minus their full demands.</p> <p>‘¿. In a suit between a vendee of a stock of goods and attaching creditors of the vendor, all that was said and done between the parties at and before the making of the agreement is competent evidence, not only to show fraud, but to rebut it, its object not being to vary or alter the terms of the written contract for such sale, but to show the good faith of the transaction.</p> <p>4. Where, on the execution of a contract for the sale of a stock of goods, the vendor and vendee joined in a telegram and letter to the clerks in charge of the store and business, notifying them of the sale and directing them to close up the cash account as of the previous evening, and secure a transfer of the lease of the store and policies of insurance on the goods to the vendee on receipt of such letter, which instructions were obeyi d; and the vendor, at the same time, delivered to the vendee the key of the store, who thereafter carried on said business until the property was seized by attaching creditors of the vendor,— *</p> <p>Held, in a suit against the attaching officer to recover said property, that the telegram and letter, and the action of the clerks in pursuance of the instructions therein contained, were competent and material evidence as bearing upon the question of the delivery of the goods, it being denied by the defendant as having taken place at time of the seizure under the writs of attachment.</p> <p>Held, further, that upon the facts stated there was a sufficient delivery and transfer of the possession of the property sold to meet the requirements of the statute of frauds, and that in such a case the burden of proving the sale fraudulent is upon the attaching creditors.</p> <p>5. Where á sale of personal property is assailed' as fraudulent by attaching creditors, it is competent for the vendor to state whether the contract (a written one) was an absolute sale, and whether there were any reservations outside of it; and the vendee may testify whether he had anything in view except an honest purchase of the goods.</p> <p>In such cases the parties may testify as to their intent in entering into the contract. Hyde v. Nelson, 11 Mich. 358; Brown v. Blanchard, 89 Id. 790; Bedford v. Penny, 58 Id. 424-5.</p> <p>6. The vendor of a stock of goods made a general statutory assignment of all of his property on the morning of the day succeeding such sale, and the assignee took possession of a portion of the assigned property, but not of that covered by such sale, it having been delivered to the vendee on the previous day. .On the afternoon of the day the assignment was made creditors of the vendor attached the stock of goods then in the possession of the vendee, and some days afterwards a bill was filed to enforce the trust under the assignment— the assignee having failed to give the required bond — and a receiver was appointed. The vendee and attaching creditors were made parties in the chancery suit, and the receiver was directed to execute the trust created by the assignment, and in his discretion to commence a replevin suit against the vendee for the goods sold him.</p> <p>Held, in a replevin suit brought by the vendee against the attaching officer, that the attachment levies were void, and that if the sale was fraudulent as to creditors the. assignee or receiver was the only person to bring suit for the goods, or who could move to set aside the sale.</p> <p>7. It is always admissible, in a case involving adverse claims to the possession of property under legal proceedings, to show that one of the parties moved at a certain hour of the day before action was taken by the other.</p> <p>8. An assignment, under How. Stat. § 8741, confers upon the assignee the right to recover all property which may be reached or recovered by any creditor of the assignor, and the circuit court in chancery for the proper county has supervisory control of all matters and disputes arising out of or under the assignment, and the power to make orders for the recovery of all property claimed by third persons; and where the trust has not failed, a receiver takes the place and succeeds to the powers of the assignee, and in either case creditors cannot sue. Barnum Wire Works v. Speed, 59 Mich. 278-9; Root v. Potter, Id. 499-504.</p> <p>[Counsel discuss the other questions covered by the opinion, but cite no further authorities. — Reporter.]</p>

<p>Error to Mecosta. (Fuller, J.)</p> <p>Replevin. Plaintiffs bring error.</p> <p>The facts are stated in the opinion and head-notes.</p>

<p>Highways — How. Stat. secs. 1365-6 — Providing for widening or fencing highways along a river bank — When reduced to less than 50 feet in width by washing away of bank or other canses — Apply to plank-road company— Organized under charter and plank-road laws of 1848 — Sections cited only cover highways originally 50 feet wide at point to be protected — And which have become reduced below that width, etc. — Statute penal as to toll-roads, and cannot be extended by construction beyond plain meaning of its terms — Legislative intent is to characterize as unsafe for travel highways along river bank where, worked part is less than 35 feet wide — See How. Stat. sec. 1366— Which it is proper to consider in connection with Act 344, Laws of 1879 (repealed, and its main provisions re-enacted, by Act 364, Laws of 1887) — Providing for collection-of damages sustained by reason of defective highways — Defeats in construction,as well as through failure to repair, are covered by this act — And unless highway is kept in reasonably safe condition for travel by day and night — Action lies under said act for injuries resulting from such unsafe condition — Negligence— Plank-road company — Guilty, on state of facts setforth in head-note 5, of neglect of statutory duty and that imposed by its relations to the public— And liable in suit by wife for death of husband who drove off the embankment, in absence of contributory negligence on his part — Nor general statement of rule governing action of trial court in negligence cases, see page 593-3 of opinion, and authorities cited — Each case depends upon its own facts and circumstances — Difficulty not in the rule, but in its application to particular cose — Proper, in cases of doubt, to submit evidence to jury under proper caution and instructions — Its sufficiency and weight are questions exclusively for jury — Oase can be taken from them only in absence of any legal evidence which, if believed, will establish, plaintiff’s case.</p> <p>1. How. Stat. §§ 1365-6 (§§ 1-2, Chap. "5, Act 243, Laws of 1881), making it the duty of the highway commissioner to widen, or protect by fencing, any highway passing along the bank of any river, lake, or water-course which shall become reduced to a width of less than fifty feet by the washing away of the bank, or from any other cause, apply to a corporation, organized under a charter and the general plank-road act of 1848, which has constructed a toll-road on an existing highway and is operating the same.</p> <p>2. How. Stat. § 1365 (see head-note 1), only applies by its terms to such public highways as were originally 50 feet or more in width, where they .pass along a river bank, etc., and have become reduced lo less ■than that width by the falling or washing away of the bank, or from other causes. The statute is penal, so far as it affects toll-roads, and cannot be extended by construction beyond the plain meaning of its terms.</p> <p>3. The Legislature intended to characterize as unsafe for travel public highways along the banks of lakes, rivers, and other water-courses, in which the worked part was less than 35 feet in width (How. Stat. § 1366); and it is proper to consider this section in connection with Act 244, Laws of 1879, providing “ for the collection of damages sustained by reason of defective public highways.” (How. Stat. § 1442, et seq.)</p> <p>4. The defects in highways covered by Act 244, Laws of 1879, extend to defects in construction, as well as through omission to repair, and neglect to keep in a condition reasonably safe and fit for travel by day and by night; and unless the highway is so kept, it constitutes a defect for which, if injury results, an action will lie under the act cited.</p> <p>5. Defendant is a corporation organized under a charter and the general plank-road act of 1848. Its road was constructed on an existing highway leading from Detroit to Saline, passing near the river Rouge, at which point the road bed is 24 feet wide, with a ditch and fence on the left, and on the right a grass plat of four or five feet in width, and then a precipitous bank to the river below, distant from the center of the road from 60 to 75 feet. The road at this point is of the same width it has been for many years, and no change has occurred since defendant’s control under its charter, which requires it to construct, maintain, and keep its roadway 16 feet in width, in good Tepair and fit for travel, but nowhere relieves defendant from protecting the traveling public against obvious dangers from such embankment.</p> <p>Held, in an action for damages for the death of plaintiff’s husband, who drove off said embankment and was drowned, that,on the undisputed facts as above stated, defendant had neglected a duty imposed alike by statute and by its relations to the public, and that if the jury found that her husband’s death was the direct consequence of such neglect of duty, and not contributed to by his own act, carelessness, or omission to exercise due care, their verdict should be for the plaintiff.</p> <p>15. The general rule governing the action of the trial court in actions for negligence has been well stated in Metropolitan Ry. Co. v. Jackson, 3 L. R. App. Cases, 193, and in Ryder v. Wombwell, L. R. 4 Exch. 38 (see page 592 of opinion); but each case must depend upon its own facts and circumstances, and nothing but general principles can be laid down by the Court. The difficulty is not in the rule, but in its application to the particular case. In all cases of doubt, the proper method is to submit the evidence to the jury, under proper caution and instructions, to determine whether, from the facts found, negligence ought to be inferred. In determining the preliminary question of law, it is not the province of the court to pass upon the weight of the evidence, for its sufficiency and weight, and the effect to be given thereto, are questions exclusively for the jury; and it is only where there is no legal evidence which, if believed, will establish a fact material to plaintiff’s case,that the trial judge can take the case from, the jury.</p>

(Jennison, J.) Bill filed to remove cloud from title. Defendant the Lion Brewing Company alone appeals. The facts are stated in the opinion and head-notes.

<p>Error to Jackson. (Gridley, J.)</p> <p>Ejectment. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Jackson. (Gridley, J.)</p> <p>Ejectment. Defendants bring error.</p> <p>The facts are stated-in the opinion in Burrall v. Bender, 61 Mich. 608.</p>

<p>Agency — Purchase by husband of a mortgage for his wife — And employment of solicitor to foreclose same — Ratified, by wife’s bringing suit for breach of covenant in assignment — And putting foreclosure proceedings in evidence in such suit — Such acts and ratification have no tendency to establish a general agency — Authority to compromise a claim — Not impliedfrom authority to collect it and receive payment — A solicitor employed to foreclose a mortgage — Has no power, in the absence of special authority, to compromise complainant’s claim — For breach of a covenant of her assignor that a certain sum'was due on the mortgage — Even though retained to prosecute a suit for such breach — Payments on non-negoiiable securities to alleged agent — Person making, acts at his peril if papers not produced by such agent— Unless he can show actual payment to the principal — Or special authority of agent to receive the money — Husband an incompetent witness, under How. Stat. sec. 7546, to prove his right to compromise claim of wife — Which settlement she repudiates — Damages —Measure of in suit for breach of covenant of assignor of mortgage that nothing had been paid thereon — It appearing that the debt had been paid — Is the value of the mortgage and note at time of purchase if nothing had been paid thereon — If maker irresponsible and security valueless, assignee not damnified — Burden of proof on assignee, in such a case, to show such value — Assignee has the option to sue on warranty — Or ■may recover purchase money on the ground of total failure of consideration.</p> <p>1. Plaintiff’s husband purchased a mortgage of defendant, assuming to> act as her agent in so doing, paying the consideration money. He demanded payment of the mortgage debt, and on refusal instituted foreclosure proceedings, employing a solicitor for that purpose; in which suit the bill was dismissed, on proof that the mortgage debt was paid prior to such purchase. He acted with the solicitor in compromising the claim of the wife for damages on account of the breach of the covenant of the assignor that a certain sum was due on the mortgage, and receipted to him, in his wife’s name, as agent, for the money paid on such settlement. No special authority was shown from the wife to her husband or to her solicitor to compromise or settle said claim, nor was there any evidence to show her knowledge ■of such settlement or that she received the money paid thereon.</p> <p>She afterwards brought suit against the assignor on said covenant, and he set up as a defense the aforesaid settlement,and introduced evidence >f the foregoing facts as tending to show that the husband was the general agent of his wife in making such compromise. On the trial the foreclosure proceedings were put in evidence by the plaintiff to show the breach of defendant’s covenant.</p> <p>Held, that by bringing suit on said covenant, and introducing the foreclosure proceedings in support of her claim for damages for its breach, the wife ratified her husband’s purchase of the mortgage and the proceedings to foreclose the same; but that these acts, standing by themselves, had no tendency to establish the general agency claimed, but affected the purchase and attempted collection of the mortgage alone.</p> <p>2. Authority to compromise and settle a demand cannot be implied from authority to collect and receive payment of the same.</p> <p>8. A solicitor was employed to foreclose a mortgage, and prosecuted the suit to final decree. He afterwards assumed to compromise the claim of the complainant under an assignment of the mortgage, for a breach of a covenant therein contained.</p> <p>Held, that such claim was collateral to and independent of the foreclosure suit, and had he been retained to prosecute a suit for such breach he could not, in the absence of-special authority, settle the demand for less than the amount due and payable thereon.</p> <p>4. The rule is well settled that when a person makes payments upon nonnegotiable securities to a person assuming to act as agent, he should see to it that the securities are in the possession of such alleged agent; otherwise he may be compelled to pay the money over again, unless able to show its actual payment to the principal, or the special authority of the agent to receive payment.</p> <p>5. In a suit by a married woman against an assignor of a mortgage, purchased for her by her husband as agent, for breach of covenant, the defendant sought to show a settlement of the demand with such agent, and that he was her general agent, and offered the husband as a witness for that purpose, his wife not consenting to his being sworn.</p> <p>Held, that he was an incompetent witness under How. Stat. § 7546.</p> <p>6. In a suit on a covenant by the assignor of a mortgage that nothing had been paid thereon, it appearing that the mortgage debt had been paid at date of the assignment, the measure of damages is the value of the note and mortgage at time of purchase if nothing had been paid thereon; and if it appears that the maker was irresponsible and the security valueless, plaintiff cannot be held to be damnified by such bread). In such a case the burden of proof is on the plaintiff to show such value.</p> <p>7. Where an assignor covenants that a certain sum is due on a mortgage sold by him, and it appears that the mortgage debt was fully paid at time of such assignment, the assignee has the option to sue upon the warranty, in which action he can recover his actual damages, which are measured by the real value of the security purchased if nothing had been paid theieon, or he can sue to recover back the money paid, on the ground of a total failure of consideration.</p>

<p>under facts stated, in head-note 1 — Application for insurance — Stating that insured property is mortgaged — And right of mortgagee to secure insurance in his favor for stated sum, — Sufficient notice to enable insuranee company to protect itself — And full compliance by mortgagor with the spirit of clause avoiding policy in case of double insurance — If morigagee secures insurance in his favor' in names of mortgagors — Who are joint owners of property — One of whom, is ignorant of such fact — And insures her interest the following day, giving notice in her application of mortgagee's rights as above stated — Held, not other insurance within forfeibure clause of her policy — Such forfeiture clause may be waived'by insurer — If policy avoided by reason of existing insurance not assented to by insurance company — Hew contract, based on valid consideration, is required to revive it — Or such conduct as misleads the assured to his prejudice — And operates as an estoppel on company — In such a case the risk never attached — And the premium paid, in absence of fraud, belongs to policy-holder— Which the company has no right to retain — If, after a loss occurs, company receives notice of existing insurance, which wa/rrants repudiation of liability — And takes steps looking towards adjustment of loss — Inconsistent with non-recognition of such liability — And puts assured to inconvenience and expense infurnishing information as bads for such proposed adjustment — Jury authorized to find waiver of forfeiture by company. Hire Insurance — Evidence—Of statements of alleged agent, properly rejected</p> <p>1. August 5, 1880, plaintiff and her grandson mortgaged certain lands. owned by them jointly, to secure a debt of the grandson. The mortgage contained the usual insurance clause, and on September 9, 1880, the dwelling-house on said land was insured for $3,000, in favor of the mortgagee, in the Watertown Insurance Company, but without the knowledge of plaintiff, who on the next day insured her interest in the building with defendant for $8,000. In her application she referred to the mortgage, and stated that the mortgagee had the right to effect insurance in the sum of $3,000 in his favor on the property on which she sought insurance. On May 33, 1881, the dwelling-house was destroyed by fire. Defendant was duly notified of the loss, and took steps looking to its adjustment inconsistent with the repudiation of its liability as insurer on account of the prior insurance; but afterwards refused to pay said loss, on the ground that the policy in favor of the mortgagee was “double" insurance, avoiding that of plaintiff under a clause providing that the existence or after placing of any other contract of insurance, without defendant’s consent indorsed on the policy, should render the same void.</p> <p>In a suit to recover such loss defendant sought to prove by the agent who issued the first policy conversations with the mortgagee’s attorney and an alleged agent of plaintiff, showing her consent to the prior insurance. No claim was made that either knew that such prior policy had been issued until after the fire, nor was the evidence sufficient to establish the agency claimed.</p> <p>Held, that the evidence was properly rejected, it being very remote, and, if admissible, established nothing more than the mortgage provided for.</p> <p>3. Where a policy of insurance provided that the existence or after acquiring of any other contract of insurance, without the consent of the company issuing such policy, should render it void, and it appears that the written application for such policy contained a notice that the insured property was mortgaged, and of the right of the mortgagee to secure insurance in his favor for $3,000,'which had been placed prior to such application, but of which fact the applicant was ignorant,—</p> <p>Held, that the application gave all the explanation necessary to protect the rights of the second insurer, and of the mortgagor in case the mortgagee should procure the insurance provided for in his mortgage; and that such statement was a full compliance by the mortgagor with the spirit of such non-insurance clause.</p> <p>8. A mortgagee obtained insurance in favor of his mortgage interest, without the knowledge of one of the mortgagors, who was a joint owner of the property, and who on the next day insured her interest in the dwelling-house on the joint land in another company, being still ignorant of the prior insurance. The building was destroyed by fire, and in a suit by her to recover her insurance the company defended under a clause avoiding the policy in case of existing or after-acquired insurance unless its consent was indorsed on such policy.</p> <p>Held,that the assured did not make any other contract of insurance, and that the defense was not maintainable.</p> <p>4. A clause of forfeiture in an insurance policy, on account of existing or after-acquired insurance in another company unless consent thereto is indorsed on such policy, muy be waived by the insurer.</p> <p>5. If an insurance policy becomes void by reason of existing insurance without the consent of the later insurer, nothing short of a new contract based on a valid consideration, or such conduct as, by misleading the assured to his prejudice, would operate as an estoppel, can revive the policy. (New York Cent. Ins. Co. v. Watson, 23 Mich. 486.) In such a case the risk never attached, and the premium paid, in the absence of fraud, belongs to the person paying the same, and the insurance company would have no right to retain it.</p> <p>6. Where an insurance company was informed, immediately after a fire, of prior insurance, which might authorize it to repudiate its liability under its policy, but after receiving such information took steps towards the adjustment of the loss only consistent with a recognition of its continued liability therefor, and put the assured to inconvenience and expense in furnishing information as the basis for such proposed adjustment,—</p> <p>. Held, that if the policy had been forfeited by reason of such existing insurance, the jury were justified in finding that the forfeiture had been waived.</p>