Volume 62 — Michigan Reports

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

<p>Directing verdict for defendant — Error, where plaintiff’s case, as made by the evidence of his witnesses, entitles him to legal redress in the aetion brought — Evidence should be submitted to the jury — Whose duty it is to pass upon same — In aetion for alleged fraud on sale of land by defendant — To which he claimed a good title, which he agreed to convey to plaintiff — But gave him a quitclaim deed — Having no title to ten acres of the land — And balance being subject to redemption on statutory foreclosure— And burdened with a texc lien, unprovided for — Rescission of contract or tender of reconveyance not necessary before bringing suit — Nor is recovery barred by plaintiff's having moved onto the land — E>’om which he has not been eviated^-Plaintiff, on his theory, entitled to a good title— And, on failing to get it, can recover difference in value of such a title and the one received.</p> <p>1. Upon a review of the testimony in this case, held, that the court erred iu directing a verdict for the defendant.</p> <p>2. Where a suit is brought for the alleged fraud of the defendant in obtaining plaintiff’s money on the sale of land to which he claimed title, which he agreed to convey, when in fact he had no title at all to ten acres of the land, and the balance was burdened with an equity of redemption and tax lien, which were not provided against by the defendant, who conveyed the land by a quitclaim deed to plaintiff,—</p> <p>Held, that it was not necessary for plaintiff to rescind the bargain or tender a deed of the premises back to the defendant before bring, ing suit, nor is a recovery barred by plaintiff’s moving onto the land soon after his purchase, from which he has not been evicted or disturbed in his possession.</p> <p>Held, further, that plaintiff-was entitled, on his theory, to agood title, and, failing to get it, could recover the difference between the value of the premises with such a title and their worth with the title he received.</p> <p>[Briefs of counsel confined to a discussion of the testimony. — Reporter.]</p>

(Mills, J.) • Bill filed for the specific performance of a parol contract to convey land. Complainants appeal. The facts are stated in the opinion and head-notes.

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

<p>Copa/rinership — Held not proven in this case — See opinion for review of testimony — Resulting trust — Cannot arise where title to land is placed in one party by consent of another, who furnishes the consideration for the purchase — With nothing but a verbal understanding as to how he should hold it — See How. Stat. secs. 5569-71.</p> <p>1. Upon a review of the testimony, the Court find that complainant’s allegation as to the formation of a copartnership is not proven. See opinion for summary of testimony.</p> <p>2. Where, in a suit for an accounting with an alleged copartner, which allegation was not sustained by the proofs, the complainant testified to the purchase of a parcel of land in which he claimed to be interested, but the title was by his consent placed in his alleged copartner, with nothing but a verbal understanding how he should hold it; and the only act done by complainant was the payment of some small sums of money on account of expenses incident to such purchase, which, if made with authority, are recoverable at law:— Held, that no resulting trust could arise in favor of complainant, the same being expressly negatived by How. Stat. secs. 5569, 5571; and that no other trust could' exist without a written agreement.</p>

(Grant, J.)' Bill filed to perpetually enjoin defendants from constructing a railroad over-or across certain streets opposite complainant’s land, and to declare void certain privileges granted ¡by the city of Marquette to the defendant first named, etc. Complainant appeals.

<p>This case is ruled by the preceding one, found on page 29, and the remarks there made apply equally here.</p>

<p>An agreement for sale of fcm'm, which had been subdivided into lots —Signed by land-owner alone — Providing for a cash payment, and balance on or before four years from dale of purchase-price mortgage to be given by vendee— With privilege of paying one thousand dollars or more at any time to apply on mvpa/id principal — In which case vendor was to release lots of equal value — The agreement also providing for valuation of lots by the parties, to be ’marked on plat — Is not a completed contract —But upon its face looks to future action and negotiation between the parties to determine such valuation — Such action is an essential part of the terms and conditions of sale and payment — Promise to do an act in the future — Sufficient consideration, without performance, for an engagement by the other party — Provided such promise will subject the promissor to a charge or obligation not otherwise incurred — The non-performance of which will subject him to an action for damages — Agreement to execute the mortgage hereinbefore referred to — Must be in writing to be valid— Or evidenced by some note or memorandum thereof signed by the proposed mortgagor— Verbal acceptance of written offer to exchange lands— Not enforceable, being required to be in writing under statute of frauds— Contract void under said statute is a mere nudity, and cannot be used for any purpose.</p> <p>1. Defendant agreed in writing to sell to plaintiff his farm for $89,000, payable as follows: $12,000 in cash, and the balance on or before four years from the date of a mortgage to be given as security for such deferred payment, plaintiff to have the privilege of paying $1,000 or more at any time during the four years on account of the unpaid principal. The agreement further stated that the farm had been subdivided into lots; that the parties were to agree to the valuation of each lot, and defendant agreed, on the making of such optional payments, to release lots of equal value to such payments, such agreed valuations to be placed on the plat of said farm.</p> <p>The time for accepting this offer of sale was limited to twenty days, prior to the expiration of which plaintiff verbally accepted the offer and requested defendant to prepare his deed. Defendant answered that the agent of an insurance company which held a mortgage on the land was then absent, and would not return until the following Tuesday, which would prevent his obtaining a discharge of the mortgage until that date; and it being suggested by plaintiff that the twenty days’ option would expire before the date named, defendant said that would make no difference, — that he would carry out the contract even after sixty days.</p> <p>Plaintiff made no tender of the cash payment, or of any deed or mortgage, executed or to be executed, and before the Tuesday arrived, and after the expiration of the twenty days, defendant sold the land to another party.</p> <p>Held, in a suit brought to recover damages for the breach of the alleged contract for sale, that the offer did not constitute a completed contract, but upon its face looked to future action and negotiation between the parties to determine and agree upon the valuation to be placed upon the lots; and that this part of the offer was an essential part of the terms and conditions of sale and payment.</p> <p>2. While it has been held that a mere promise to do an act in the future is a sufficient consideration, even without performance, for an engagement by the other party, the true principle underlying this doctrine is that the promise which forms the consideration will subject the party making it to a charge or obligation which he otherwise would not have incurred, and the non-performance of which will subject him to an action for damages.</p> <p>3. An agreement to execute a mortgage upon real estate is an agreement concerning an interest in lands, which, to be valid, must be in writing, or evidenced by some note or memorandum thereof signed by the promissor.</p> <p>4 Where one party signs a memorandum offering to exchange land which he owns for land owned by another party, such memorandum cannot be made a valid contract by the verbal acceptance and promise of the other party to make such exchange, such verbal promise not being enforceable, being required to be in writing by the statute of frauds.</p> <p>5. A contract void under the statute of frauds is amere nullity, and cannot be used for any purpose whatever.1</p>

<p>Error to Mason. (Judkins, J.)</p> <p>Assumpsit. Defendant brings error;</p> <p>The facts are stated in the opinion and head-notes..</p>

<p>Case — Remote damages — Not the necessary consequence of injury complained ■ of— Cannot be shown under declaration charging such injury as the result of the direct act of the defendant — Highway commissioner — Order for removal of encroachment — Properly served on occupant of land — Bo held where legal title was in wife under unrecorded deed from husband, the occupancy remaining unchanged and husband controlling the la/nd —In suit by wife against highway commissioner for removal of such encroachment — Proceedings under statute against husband for maintaining same, based on such order for removal, a/re admissible as a defense— Legislature might authorize such removal without notice — Commissioner is justified only when encroachment exists — And is liable for trespass if existence of highway is successfully negatived — Law of 1881 (How. Stat. sec. 1871) extends to all public highways, whether actually laid out or such by user — Order for removed — Object of is to define extent of alleged encroachment— When it does this it is sufficient.</p> <p>1. Plaintiff sued defendants in case to recover damages for the alleged wrongful destruction of a fence on her land, and for injuries to growing trees, all caused by the direct acts of defendants. On the trial she was permitted to testify that, by reason of the removal -of the fence, her husband or herself had to stay at home all the time; and at night, if the dog barked, she had to go out herself on account of her husband’s sickness, and had to keep the children out of school, all to prevent injury to the land orchard, and crops by cattle.</p> <p>Held, that these elements of damage were not the necessary consequence of the injury complained of, and that the testimony was inadmissible under the declaration, which counted merely for the destruction of the fence and injury to the trees by the direct acts of defendants.</p> <p>2. Where a husband conveyed the home farm to his wife, the deed not being recorded, and the occupancy remained unchanged, the husband managing the farm the same as he did before such convey anee,, andi among other things built a fence which encroached on the highway; and, failing to remove the same on the order of the commissioner of highways, that officer took such steps as resulted in a judgment under the statute fixing the husband’s liability for the encroachment, the order for removal having been directed to and served upon him, of which facts the wife had full notice:—</p> <p>Held, in a suit brought by the wife to recover damages for the removal of the fence by the commissioner, that the order was properly served on the husband as occupant of the land; and that the proceedings in the suit wherein the husband’s liability for maintaining such encroachment was adjudicated were admissible as evidence in favor of the commissioner in the damage suit brought by the wife.</p> <p>8. The statute (How. Stat. § 1371) purposely names the occwpant of land as the proper person to proceed against for the removal of an encroachment on the adjoining highway. To require such service to be made upon the owner involves an impossibility in many cases where such owners are infants, non-residents, or unknown; and the Legislature wisely regarded the occupier of the inclosure formed by the encroachment as the responsible party, upon whom service should be had.</p> <p>4. It would have been competent for the Legislature to authorize the commissioner of highways to proceed and remove all encroachments upon the highways without any notice to the owner or occupant of adjoining lands; and certainly a law which provides for notice to the occupant cannot be held invalid to protect such officer because it fails to also require service on the owner of such lands.</p> <p>5. A highway commissioner proceeding to remove an encroachment from the highway is justified only in the fact that the highway is encroached upon, and is liable for any trespass he may commit if it proves not to be a highway and an encroachment thereon.</p> <p>6. The provisions of the highway law of 1881 (How. Stat. § 1371) relating to the removal of encroachments extend to all public highways, whether actually laid out or such from user.</p> <p>7. Where the order of a commissioner of highways for the removal of a fence designated the alleged encroachment as “ a strip of land two rods in width, across the land of Frederick Krueger, the south end of private claim. No. 32, which now lies inclosed' by said fence,” and ordered “that such fence be removed, so that the road shall be opened and unobstructed, and of the width originally intended, which shall befourrods,”—</p> <p>Meld, that the object of such order and notice is to point out clearly the extent of the supposed encroachment, by declaring how far the fence lies from where it ought to be (People v. Smith, 42 Mich. 139), and that the order above described does this explicitly.</p>

<p>Declaration on guardian’s bond — Describing defendant "as guarrdian of Lucretia Cummins” — With reference to probate record of bond — In which she was named "Emma Cummins” — Her full Christian name being “ Emma Lucretia” — Held, that the recorded bond was admissible under the declaration — The misnomer being a clerical error amendable as of course on the trial — Circuit judge acting as judge of probate on settlement of guardian’s final account — If guardian and surety take part in proceedings — Without questioning jurisdiction of acting judge — They are estopped from, raising that question in a suit to recover the distributive sha/re of ward — Order of distribution made on such settlement without notice to infant wards — May be confirmed on hearing of order to show cause against such confirmation — Notice of hearing being given to wards by publication — If general guardian appears on such hearing• —And questions jurisdiction of cirr.uit judge, and order of distribution as made without personal notice to wards — And objects to present hearing for want of like notice — Which objections are ignored by the acting judge — As also the special appearance of- theguardian — And a guardian ad litem is appointed for the wards— Who accepts the trust and assents in writing.to the order of distribution — Which is thereupon confirmed by the circuit judge — -From which order the general guardian fails to appeal — Held, that the method of giving such notice was discretionary, and if the circuit judge had authority to act the order of confirmation was valid — That in Absence of a counter showing, the existence of the required jwrisdictional facts must be presumed — And that the action of the judge amounted to a.finding of such facts and of his power to act— W hich decision was final, unless appealed from— Notice — Of application for leave to bring suit on guardian's bond — For sum due ward under order of distribution — Not required to he given to guardian — If granted, the order to sue enables ward to raise question of guardian’s liability in- a court of law — To which suit the guardian becomes a party— Whose liability cannot be .adjudicated on the preliminary application — How. Stat. sec. 6332 — Limiting liability of sureties on guardians' bonds to actions commenced within four years from, discharge of guardian — Hoes not apply to conditional oi'dersfor such discharge — If wa/rd is an infant at time of discharge he may bring suit at any time within four years after attaining his majority. . -.</p> <p>1. In a suit upon a guardian’s bond the declaration described defendant “ as guardian of Lucretia Cummins,” referring, however, to the record of the bond in the probate court. On the trial the bond offered in evidence varied from the one declared upon in stating the ward’s name as Emma, but it appeared that her full name, was Emma Lucretia, and that the bond so offered was the one recorded.</p> <p>Held, that the reference to the probate record was sufficient to identify the bond sued upon, and that the use of the name “ Lucretia" could'be treated as a clerical error, or amended as a matter of course on the trial, and that the objection on account of variance was technical and without merit,</p> <p>2. In a suit against a guardian and her sureties upon her official bond .to recover the distributive share, of one of her wards, it appeared that the orders and proceedings leading to the settlement of the guardian’s account in the probate court were made.by and had before ■ the circuit judge, acting as judge of probate, but nothing appeared to show for what cause or reason he was so acting. It appeared, however, that theguardian and her surety, against'whom judgment was sought, had appeared and taken part in such preliminaryfproceedings without objecting, in any way to the right of the circuit judge to conduct the same.</p> <p>■Held, that they were estopped from raising said question in the collateral .proceeding on the'bond, having voluntarily submitted themselves to the jurisdiction of the court. ’-K</p> <p>3. After the settlement'of a guardian’s final account an order of distri-button was made'among the heirs, three of whom -were‘minors’, but without notice of such proposed action; for which reason an order was afterwards made, reciting the order of distribution, and the objection thereto of the surety on the guardian’s bond for want- of such notice, made on the hearing of an application of the adult ward for leave to sue on such bond to recover her distributive share under said order, and directing that a further hearing should be had in the matter of such distribution. It was further ordered that the infant wards should be notified to appear, and show cause why the first order should not stand, by the publication of a copy of the second order in a daily newspaper once in each day for five days, which was done.</p> <p>The minors did not appear in person, but their general' guardian (appeared specially and‘made the following objections:</p> <p>■ a — The judge of probate was not incapacitated to act, and had .made no order authorizing the circuit judge to act in his stead.'</p> <p>i — The order of distribution was void, and could not be validated by further action.</p> <p>• c — No notice of the present hearing had been served upon the minors or their guardian.</p> <p>'• The circuit judge ignored the objections and the appearance of the guardian, and ordered that a guardian ad litem be appointed for the minors, who accepted the trust, and signified in writing his satisfaction with the order of distribution, which was accordingly, confirmed.</p> <p>No appeal was taken from this order, and after demanding her distributive share thereunder the adult heir applied for leave to bring suit upon the guardian’s bond to recover the same, which was granted by the circuit judge, acting as judge of probate,'and' suit was accordingly commenced against the guardian and her sureties, neither of whom had any notice of such application or appeared at the hearing.</p> <p>On' the trial- the defendants denied the validity of the original order of distribution for want of notice to the minors, or that the same was validated by the subsequent order for a like reason; also' the power of the court to appoint a guardian ad litem, and his authority to bind the minors by assenting to such original order.</p> <p>, Held, that the manner of serving notice of application for distribution, and the length of the notice, were in the discretion of the probate judge under How. Stat. § 6798; and it appearing that the notice given reached the general guardian, who is authorized by statute to appear for the minors, and did appear,—</p> <p>. Held, further, that if the circuit judge had authority to act, the order confirming the order of distribution was valid.</p> <p>Held, further, that in the absence of any showing to the contrary, the existence .of the necessary fact or facts authorizing the circuit judge to act must be presumed; and- that the ignoring by that officer of. the objections .of the. guardian,- which-squarely questioned, such ,,authority, was equivalent to a .finding by him that he ...had jurisdiction, which decision was final, unless appealed from, and cannot be attacked collaterally.</p> <p>4. The statute does not require any notice to be given of the hearing of an application by a ward for leave to bring suit upon a guardian’s bond to recover a sum due under an order of distribution; and if the guardian and his sureties should appear, the. question of their legal liability could not be adjudicated on such hearing. The order to sue only grants the privilege of raising this question in a court of law, and when the suit is instituted the guardian becomes a party thereto, and must be duly notified before his rights can be affected. Richardson v. Oahman, 15 Gray, 57; Richardson a. Eazelton, 101 Mass. 108; How. Stat. § 6381.</p> <p>5. How. Stat. § 6332, limiting the liability of sureties upon guardians’ bonds to actions commenced within four years from the discharge of the guardian, has no application to conditional orders for such, discharge; and if at the time of such discharge the ward is an infant, he may bring such suit at any time within four years after attaining his majority.</p>

<p>How. Stat. sec. 9054 — Only allows for actual attendance by a constable on a trial or examination before a magistrate on the order of such court— Board of supervisors — Allowance of claims by — Duty to allow claimant a hearing upon such proofs as he may desire to offer — And such compensation, whether fixed by law or contract, or resting in its discretion, as he should receive for services rendered — Bound to act fairly, and upon testimony offered, the same as courts and other judicial 'bodies— And to come to a decision upon the merits of each claim — Or, if it is rejected, to distinctly record that fact, and thus enable the claimant to obtain a judicial decision in the premises — Duty of claimant to attend upon session of board and offer his proofs — Board should fix time and place for hearing same — But is not expected to look up witnesses or take proofs on its own motion — Or give notice of the time and place for such hea/ring other than that furnished by its regular proceedings — Of which claimant is bound to take notice — Filing account with clerk will not subject board to mandamus proceedings for failure to pass upon same — But claimant must appear and reguest such action — And offer to prove his account — Affdavit in which claimant swears that the annexed account is just and true, and has never been paid, in whole or in part — Is insufficient to establish its correctness or warrant its allowance.</p> <p>1. Under How. Stat. § 9054, allowing a constable a per diem compensation for attending court on the order of a magistrate, no fees can be charged for constructive attendance, nor for actual unless a trial or examination is being held at the time before such magistrate.</p> <p>2. When claims are presented for allowance to a board of supervisors which have not been liquidated by any authority which concludes that body, it is required to allow the claimant an opportunity to be heard upon such proofs as he may desire to offer in support of his claim, and to allow him such compensation as he should receive therefor, whe'ther fixed by law or contract, or dependent on its own determination. Such board is bound to act fairly, and to give proper effect to all testimony laid before it, in the same .manner as courts and judicial bodies are expected to in the course of justice; and to come to a decision upon the merits of each claim, or distinctly record the fact of its rejection as.not properly admissible, so as to enable the claimant to obtain a judicial decision whether the board is bound to consider such claim.</p> <p>3. It is the duty of a claimant to attend upon the session of the board and offer his proofs in support of his claim, and the board should fix a time and place for hearing the same; but it cannot be expected, on its own motion, to find witnesses or take such proofs, or give notice of the time and place for such hearing other than such as occurs in the course of its proceedings, of which the claimant must take notice.</p> <p>4. A party filing his claim with the county clerk cannot put the board of supervisors in default for not passing upon the same, and obtain a mandamus compelling such action, without appearing before the •board or its committee and requesting such action and offering to submit proof of the correctness of such claim.</p> <p>■a. A constable presented an account for allowance by the board of supervisors, made up of charges for official services claimed to have been rendered in criminal cases, verified by his affidavit, in which he swore that the account “ was just and true, and that the same, or any part thereof, had not been paid.”</p> <p>Held, that such affidavit was insufficient to establish the justness or correctness of the account, or to prove that it was n proper charge to be allowed and paid from the treasury of the county.</p>

<p>line fence around school house site — A "necessary appendage ” within the meaning of the statute— Where electors direct district board to build such a fence — And board estimates its cost, but takes no further action in the matter — And the director, without the knowledge of his co-members, lets the contract according to such specifications — And after the contractor has his material on the ground, the assessor notifies him that he had better- have an understanding ■with the district board or he may have trouble in getting his pay — But he is not forbidden to build the fence— Which he constructs according to contract— Which fence is not accepted by the board — And acceptance is refused at a speddl meeting of the electors — And the moderator refuses to countersign an order for the contract price — Which is lost, and suit brought against the district — Held, that the director had a right to let the contract in the manner stated — “ Appendages," under the school statutes, includes fuel, fences, and necessary out-houses — Duty of director to provide same not confined to school ' term — They should be on hand when school opens — It then becomes his duty to keep same in repair, as also the school-house — If mandamus was plaintiff’s appropriate remedy, defendant is estopped from raising the objection for the first time in the appellate Court.</p> <p>1. Pending the erection of a school-house, the electors of the district voted to build .a line fence around the school-house site, specifying the plan and manner of its erection, and directed the district board to build the same. The board estimated the cost of the fence, but took no action with reference to letting the contract, or any steps towards its construction; and the moderator and assessor left the board meeting, with the understanding that the board would meet in the near future and let that and other jobs. Soon after this meeting, the director, assuming to act in behalf of the district, contracted for the construction of the fence, according to the specifications adopted by the electors. The other members of the district board were ignorant of this action until after the contractor had procured material and dug the post-holes, when the assessor notified him “ that he had better have an understanding with the school board, or he might not get his pay;” but he was not forbidden to build the fence, which he completed according to agreement. The school board never accepted the fence, and at a special meeting of the electors they refused to accept or pay for it. No school was being taught at the time of the making or completion of the contract.</p> <p>Held, that the fence was a necessary appendage to the school house, and that the director had the right to let the contract for building the same in the manner stated.</p> <p>H. A line fence around a school-house site falls within the same category as a well, wood-house, or privy, and is a necessary appendage to the building. While not an annexation, it ' is certainly accessory thereto.</p> <p>3. The word “ appendage,” as used in our. school statutes, does not méan simply the school apparatus to be used inside of the building, nor is it limited to brooms, pails, cups, etc., but must be construed to include fuel, fences, and necessary out-houses.</p> <p>4. Under How. Stat. § 5073 (subdiv. 6), .the power and duty of tha director to provide the necessary appendages for the school-house is not confined to the actual sessions of the school, as nearly all such appendages ought to be on hand when the school opens, and should be furnished or built beforehand; and it then becomes the duty of the director to keep them, with the building, in good condition and repair during the time school shall be taught therein.</p> <p>5. Where a contractor received an order from the director of a school district in payment for building a school-house fence, which the moderator refused to countersign, and the order was lost, and an action of assumpsit was brought against the district and tried in justice’s and circuit courts without any objection by the defendant that mandamus was the appropriate remedy,—</p> <p>Held, that such claim, even though it might have been a good defense if seasonably made, will not be considered for the first time in the Supreme Court.</p>

<p>'Corporation — Disfranchisement of member — Cannot be for cause or in manner corporation could not have adopted — By-laws—If unreasonable, void —Defamation of member — Must be without reasonable cause to subject alleged defamer to discipline — Cannot deprive member of his rights unless grossly .in fault — Nor can member be called upon to meet vague and uncertain charges — Complaint charging member with defamation without naming injured party — And giving no details of alleged libel — Is insufficient to put alleged defamer on trial — Alternative sentence — Power to impose will not authorize a double one, in absence of special authority —And such a sentence is void — Mandamus proper remedy to reinstate an illegally suspended member.</p> <p>1. No corporation can allow its members to be disfranchised for any cause or in any manner which it could not have adopted itself, and all by-laws must be reasonable, and if not they are void.</p> <p>•2. It is well-settled common law that the mere fact of defamation of a member of a corporation, by a co-member is no cause for discipline unless without any reasonable cause. Any other doctrine would be monstrous, and a corporation in Michigan cannot deprive any member of his rights unless he is himself grossly in fault; neither can a member be called on to meet vague and uncertain charges.</p> <p>•3. A complaint charging a member of a benevolent society with defamation, without naming the injured party, which complaint is entirely general, giving no details of the alleged defamation, is insufficient to put the alleged defamer on trial, being no charge at all.</p> <p>-4. In the absence of direct provisions to the contrary; it is well settled that power to impose an alternative sentence does not authorize a double one, and that any such sentence is void.</p> <p>-'5. Members of a benevolent society incorporated under the laws of Michigan are entitled, in a proper case, to protection in their rights; and where illegally suspended from such membership, mandamus lies for their reinstatement.</p>

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

<p>Township — Cannot he sued outside of home county.</p> <p>A township cannot be sued in any other .county than that of which if forms a part.</p>

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

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

(Hart, J.) Bill filed under How. Stat. § 795, for an accounting and ¡settlement between townships. Complainant appeals from •decree dismissing bill. The facts are stated in the opinion.

(Hart, J.) Bill filed under How. Stat. § 795, for an accounting and settlement between townships. Complainant appeals from decree dismissing bill. The facts are stated in the opinion.

<p>'Tenancy from year to year — Arises where tenant holds over after expiration of year — And landlord accepts rent, at same rate as formerly paid— Without any new agreement for such continued occupancy — Huyser v. Chase, IS Mich. 98, distinguished from case at lar — Not intended in that case to make any innovations upon the law as above staled.</p> <p>1. Where a tenant leased a house and lot by verbal agreement for one-year, at a monthly rental, coupled with an agreement for a second year’s occupancy at an increased rent, and at the expiration of the-first year refused to pay the increased rent and remained in possession for several months, paying at the old rate,—</p> <p>Held, that the holding over and acceptance of rent continued it as-a tenancy from year to year, and that the fact that rent was payable monthly did not change the nature of the tenancy.</p> <p>2. It was not intended in Huyser v. Chase, 13 Mich. 98, to make any innovations upon the law, and it has been held in this State that yearly-holdings continue as tenancies from year to year. Morrill v. Mack-man, 24Mich. 279; Coanv. Mole, 39 Id. 454; Judd v. Fairs, 53Id. 518.</p>

<p>Error to Hillsdale. (Howell, J.)</p> <p>Assumpsit. Defendants bring error.</p> <p>The facts are stated in the head-note.</p>

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

<p>Public officers — Suits against foi- official acts — Musi be brought in county where act complained of was committed — This is the true construction of How. Stat. sec. Tólfi — Clause “which are required by law to be laid in the county where the fact happened” — Applies.alone to persons'who aid and assist such officers.</p> <p>1. Suits against public officers, or any persons specially appointed to execute their official duties, for any act done by them by virtue of their offices (or appointment), must be brought in the county where such act was done, and cannot be prosecuted elsewhere; and this is the true construction of How. Stat. § 7549.</p> <p>2. The qualifying clause in said section, “ which are required by law to be laid in the county where the fact happened,” applies alone to persons who aid and assist such officers.</p>

<p>Contract — For sede of shingles on commission — Sale to be made for best price that could be obtained, — And proceeds sent to consignors in cash — Held not to warrant a sale on credit — Ratification— Where fads on which it is claimed are submitted to a jury— Under proper instructions — Finding conclusive.</p> <p>1. Plaintiffs wrote defendants asking if they could sell a car-load of sixteen inch Star shingles, and, if so, the probable price, and defendants replied that they would sell the shingles for the best price they could, and send plaintiffs the proceeds in cash. The shingles were shipped, and sold by defendants on sixty-day paper, which they discounted, and sent proceeds to plaintiffs, with an account of sale, retaining their commission. Defendants were obliged to pay the note, having indorsed same, and retained the amount so paid from the proceeds of a subsequent consignment of shingles.</p> <p>Held, in a suit brought to recover the value of the shingles, that the contract contained in the letters was one which required defendants to sell the shingles for cash.</p> <p>2. Where the facts upon which a ratification of a sale on credit is claimed are all submitted to the jury under proper instructions, their ■ finding will not be disturbed in the appellate Court.</p>

<p>Error to Lenawee. (Howell, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The fact» are stated in the opinion.</p>

<p>Warranty — Representations made after the sale-and delivery of property-do not amount to — Communications, to be privileged, must be made by-client confidentially to obtain counsel — Submission of disputed question by two parties to mutual friend — Who is an attorney at law — The facts as claimed by each being stated in presence of the other — Falls outsidb " of law of privileged communications — Parol submission to arbitration —Good at common law and not fm-bidden by statute — Where parties resort to same — And decision is made pursuant to such submission — It will be a valid award — Testimony of arbiter as to what was said before him — Competent evidence to prove admissions of the parties — And decision thereon under the submission.</p> <p>1. Plaintiff sued defendant for an alleged breach of warranty on the sale of a horse, but the testimony showed that the representations as to-soundness were made aftdr the sale was complete and the horse deliv. ered to the vendee thereunder, and not to have entered into the consideration for such sale.</p> <p>Held, that the alleged warranty was.not made out.</p> <p>2. A matter of difference between a vendor and vendee was by agreement submitted to a mutual friend, who was an attorney at law, both parties appearing before him, and, in the presence of each other, stating the facts of the case as claimed by them respectively, and he gave an opinion thereon. In a suit involving the matter so submitted the court refused to allow the attorney to testify as to what took place on such submission, holding that the communications were privileged.</p> <p>Held, error; that there can be no privilege where both parties hear the communications and they are not made by a client confidentially to obtain counsel. House v. House, 61 Mich. 69.</p> <p>Held, further, that a parol submission to arbitration is good at common law and not forbidden by any statute, and if the parties resorted to the attorney as a common arbiter, who heard them and made his decision, all of which was done in pursuance of the submission, such decision would be a valid award.</p> <p>Held, further, that the testimony should have been received, whether operating as proof of admissions; or, in case of a submission, to show the decision thereunder.</p>

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

<p>Husband and wife — Contract of wife with solicitors in advance of decree for divorce and alimony — Giving share of alimony to them for their services — Is void as against public policy — Demand not necessary before bringing suit for share retained — Decree for alimony — Vests no absolute right in wife thereto — Publie policy demands permanency of marriage relation — And settlement of differences between husband and wife — Contract tending to prevent, void, f-</p> <p>1. A contract made between a wife and her solicitors in advance of a decree for divorce and allowance of alimony, giving the solicitors one-half of such alimony, is void as against public policy.</p> <p>2. Where suit is brought, by the wife to recover from her solicitors the amount retained by them under such a contract, no demand is necessary before commencing such action.</p> <p>3. A decree for alimony vests no absolute right thereto in the wife. Perkins v. Perkins, 10 Mich. 425.</p> <p>4. Public policy is interested in maintaining the family relation, the interests of .society requiring that such relation be not lightly severed, and that families shall not be broken up for inadequate causes or from unworthy motives ; and where differences have arisen which threaten disruption, public welfare and the good of society demand a reconciliation, if practicable or possible ; and for these reasons, a contract which tends to prevent such a reconciliation is void.</p>

<p>Process — Defective service of, waived by pleading and going to trial on the merits — Agent—Sales by on commission at fixed prices — Evidence admissible to show ratification of sales at reduced prices — Agent claiming authority from principal so to do, which was denied — Minor—Agreement of to sell goods on commission — Suit by to recover such compensation — At tíme of trial of which he was of full age — And had never sought to repudiate the •contract on ground of non-age — But had sought its enforcement, before •and after his majority — Inquiries on such trial, by defendant of plaintiff, whether he ever attempted to vitiate the contract on ground of infancy — Irrelevant, and its exclusion not error.</p> <p>4. By pleading and going to trial on the merits, after an adverse decision of a motion to quash a writ of attachment for defective service, de-: fendant waives such defects, and cannot thereafter object to the manner in which he was brought into court.1</p> <p>2. Plaintiff contracted to sell agricultural implements for defendant at prices and for a commission fixed in the contract. On the trial of a suit brought to recover his commissions on goods sold, plaintiff claimed that, in view of existing competition, defendant authorized him to sell for the best prices he could obtain, and agreed to allow him a pro rata commission, which latter agreement defendant denied.</p> <p>Meld, that testimony tending to show defendant’s ratification of • sales at such reduced prices was admissible.</p> <p>H. Where a minor entered into an agreement to sell goods on commission, and brought suit to recover such compensation before attaining his majority, but was of age at time of trial, and had never sought to repudiate the contract on the ground of non-age, but had sought to enforce it before and after his majority,—</p> <p>. Held, .that defendant’s inquiry of plaintiff whether .he ever attempted to vitiate the contract on the ground of such infancy was-irrelevant, and its exclusion not error.</p> <p>[Brief confined to a.summary of the testimony and errors assigned. No authorities cited. — Reporter.]</p>

(Fuller, J.) Bill filed ¡to enjoin collection of judgment, and for new trial. Bill dismissed and complainant appeals. The facts are stated in the opinion and head-notes..

<p>Error to superior court of Detroit. (Chipman, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion and head-notes.</p>

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

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

<p>Negligence — Of street railway company — Established by proof that snow falling during the winter was thrown up beside track, and packed down, so as to leave a depression at the track, at a street crossing, of from six to ten inches, with a short slops downward — In suit for injuries sustained by ■ upsetting of cutter at such crossing — Testimony as to condition of road may be confined to the immediate vicinity of the accident — Competent to allow eye-witnesses who are familiar with driving to give their opinion concerning safety of crossing — Deala/ration in such a case — Alleging dislocation of plaintiff’s shoulder and consequent suffering, and other invisible and internal ailments — Should not be held to any technicality of construction — Examination of plaintiff by medical witnesses— Who testify for defendant regarding parrticular ailments described in declaration— Physicians present at such examination on behalf of plaintiff — May testify to the particulars in which, in their opinion, defendant’s witnesses failed to make proper or full examination — No opinion can prevail over facts — Opinions of experts admissible concerning the scientific probability of certain consequences from, particular fads — And scientific probability of their concurrence — Neither science nor witnesses infallible — If facts shown to exist to satisfaction of jury, they must act upon them — Contributory negligence — Party, in proper use of highway, who sought to cross railway at said crossing as directly as seemed practicable — The place being one where an impracticable crossing would be an unlawful obstruction of a public way — And it being habitually crossed, although requiring some care in so doing— Whose cutter was overturned to his personal injury — In absence of proof of carelessness on his part, is a question for the jury.</p> <p>1. Where, in a suit against a street railway company for personal injuries caused by the upsetting of a cutter while crossing defendant’s track, the testimony for the plaintiff, if believed, showed that the snow which had fallen during the winter had been thrown up beside the track, and trampled or packed down, so as to leave a depression at the track, at a street crossing, of from sis to ten inches or more, with a short slope downward; and that plaintiff’s husband, who was driving, finding it necessary to cross the track at this point, turned the horse so as to cross it as nearly as he could at right angles, but the sleigh, on making the descent, tipped over to the left and threw plaintiff out, her husband being thrown upon her, dislocating belief t arm,—</p> <p>Heli, that defendant’s negligence was made out, and came within Bowen v. Detroit City By. Co., 54 Mich. 496, and Wallace v. Same, 58 Id. 231.</p> <p>2. In such a case it is not. error to confine the testimony of both parties,. as to tlie condition of the road, to the immediate vicinity of the accident.</p> <p>3. In a suit against a street railway company involving the safety of a street crossing, which it was its duty to prevent being made dangerous for travel, it is competent to allow persons familiar with driving to give their opinion, as eye-witnesses, concerning the safety of such-crossing. (Morse, J., dissenting; see page 229 of opinion.)</p> <p>4. No amount of description can enable a jury to see a place as witnesses saw it, and while they must describe the place as well as they can, it is always competent for those who are familiar with highways, and their use, to give their impressions received at the time concerning the safety or convenience of passage, and other conditions of an analogous nature. They are not strictly scientific questions, and come within familiar principles. Evans v. People, 12 Mich. 27; Beau-Men r. Cicotte, Id. 459; Detroit <9 M. B. B. Co. v. Van Stéinburg, 17 Id. 99; Underwood v. Waldron, 33 Id. 232; Elliott v. Van Burén, Id. 49; Pettibone v. Smith, 37 Id. 579; lluizega v. Cutler <& S. L. Co., 51 Id. 272.</p> <p>5. A declaration for personal injuries sustained by reason of defendant’s-alleged negligence, consisting of the dislocation of plaintiff’s shoulder, and alleging consequent suffering and other invisible and internal ailments, should not be held to any technicality of construction. The injury which is visible and open to common observation may be described and tested easily, and should be described reasonably. But the internal and invisible ailments, which are only inferred from 'scientific deduction, and on which there is always room for some-difference of opinion, cannot be held to so close a rule, and there i-s-no reason why they should be.1</p> <p>6. Where medical witnesses testify on behalf of a defendant, in a suit for injuries sustained, as alleged, through its negligence, to an examination of the person of plaintiff with reference to the particular-ailments named in the declaration,—</p> <p>Held, that physicians who were present at such examination, on behalf of plaintiff, should be allowed to testify to the particulars in which, in their opinion, the defendant’s medical witnesses failed to make proper or full examinations.</p> <p>7. No opinion can prevail over facts. The opinions of experts are admissible concerning the scientific probability of certain consequences from particular facts, and the scientific probability of their concurrence. But neither science nor witnesses can be held infallible; and when facts are shown to the satisfaction of a jury to exist, they must act upon them.</p> <p>8. Where a street railway company allowed the snow which had fallen during the season to be thrown up beside the track, and packed down, so as to leave a depression at the track, at a street crossing, of from six to ten inches or more, with a sharp slope downward; and a party who was in the proper use of the highway sought to cross the railway track at such crossing as directly as seemed practicable, and the cutter was overturned and the occupant injured; and it further appearing that the place was one where an impracticable crossing would have been an unlawful obstruction of a public way, and that it was being crossed habitually, although requiring some care in so doing:—</p> <p>Held, that, in the absence of proof that the injured party acted in a careléss manner in making the crossing, the question of his contributory negligence was for the jury.1</p> <p>[Brief discusses substantially the same propositions as that of Mr. Withey. — Reporter.]</p>

<p>Deed — Execution and delivery of convey" s title to grantee — Which is not divested by redelivery to the grantor to enable him to secure his wife's-signature to the instrument — Which she refuses to sign and destroys— Execution, by an heir, of an instrument admitting the receipt by her of payment for her interest in the estate — Eor which she “ signs off” all her right, title, claim, or demand thereto— Under which purchaser takes possession of land, and holds for years without adverse claim from her or her heirs — Vests an equitable right in the purchaser to iter interest in said land — Entitling him to a decree quieting his title as against her heirs — If he sees fit to file a bill for that purpose.</p> <p>1. Where a grantor executed and delivered a deed of land, and the grantee redelivered it to him to secure the signature of his wife thereto, who refused to sign the same and destroyed the deed,— Held, that the title passed by formal conveyance and delivery, and was not impaired or lessened by the subsequent destruction of ' the deed. Warren v. Tobey, 32 Mich. 45.</p> <p>2. Where one of the heirs of a deceased land-owner executed a paper writing with one witness, in which she admitted payment, “to her full satisfaction, of all her right, title, claim, or demand, in whatever manner or shape, for which she signed off all right, title, claim,. or demand of the estate of said deceased,” and the vendee went into and continued in peaceable possession for many years, she nor her heirs making no claim to the land,—</p> <p>Held, that, while the instrument lacked the legal formalities of a good deed, it was sufficient to give the purchaser an equitable right to the vendor’s interest in the land, and could be considered as a written contract of sale, performed on the part of the purchaser, entitling him to a decree quieting his title as against his vendor’s heirs, if he saw fit to file a bill for that purpose.</p>

<p>Error to St. Clair. (Stevens, J.)</p> <p>Case. Plaintiff brings errror.</p> <p>The facts are stated in the opinion.</p>

<p>Motion for leave to file a bill of review.</p>

<p>Liquor dealer — Bond to be approved and filed on &>• before May 1 — If seasonably presented for such approval, duty of municipal authorities toad upon it in time to enable obligor to comply with statute — Ordinance suppressing saloons, taking effect May S — Cannot serve as an excuse for non-approval in such a case.</p> <p>On April 12, 1886, relator presented his bond ás a retail liquor dealer, duly executed, to respondent for approval, and the matter was deferred until May 3, 1886, on which day an ordinance of the village, passed April 9, 1886, suppressing saloons, took effect. Respondent refused to approve the bond on May 3, for the sole reason that ' the ordinance forbade the sale of liquor in the village.</p> <p>Held, that as the statute required the relator to file his bond, duly approved, on or before May 1, it was the duty of respondent to act upon it, if seasonably presented, before that date;1 that the ordinance had no force until May 3, hence the respondent could not justify its action thereunder.</p> <p>[Counsel discuss the constitutionality of the law empowering villages to suppress saloons. — Reporter.]</p>

<p>Appeal from Lenawee. (Howell, J.)</p> <p>Bill filed to set aside a deed and mortgage. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

(Newton, J.) Appeal from disallowance of claim by commissioners in-probate court. Claim allowed in circuit court. Defendants bring error. The facts are stated in the-opinion.

<p>Error to Oakland. (Sticlmey, J.)</p> <p>Nape. Respondent brings error.</p> <p>The facts are stated in the opinion and liead-no'</p>

<p>Oriminallaw — Embezzlement—Felonious intent must distinctly appear— Mere failure to pay over money intrusted to respondent for investment— Insufficient to constitute the offense — If an intent .to cheat amd deceive-the owner is not plainly apparent.</p> <p>To constitute the offense of embezzlement it must distinctly appear that the respondent has acted with felonious intent, and' made an intentionally wrong disposal, indicating a design to cheat and deceive the-owner. A mere failure to pay over money intrusted to him as agent for investment is not sufficient if this intent is not plainly apparent. People v. Gotland, 55 Mich. 628.</p>

<p>Criminal law — Assistant prosecuting attorney — Has pouter to sign, verify, ■■ and file inf ormaiion in case of absence; -disability, or sickness of Ms superior officer.</p> <p>Ah assistant prosecuting attorney, who by statute is required to “discharge all the functions and perform all the duties of the office of . prosecuting attorney” in case of the absence, disability, or .sickness of his superior officer, has power to sign, verify, and file an information when the statutory contingency arises.</p>

<p>Error to Wayne. (Chambers, J.)</p> <p>Information for rape. Respondent was convicted.</p> <p>The facts are •stated in the opinions.</p>

Exceptions before judgment from Ionia. (Smith, J.) False pretenses. Respondent was convicted. The facts are stated in the opinion and summarized in head-note 2.

<p>Criminal law — Information for malicious threats — Character of threat should be set forth.</p> <p>1. In an information for a violation of How. Stat. § 9093, the character of the threat complained of should be set forth, so that it may be seen whether or not a substantial threat was really made, and what it was, — whether any particular injury or any particular crime.</p> <p>2. It is not the policy of the law to punish those unsuccessful threats which it is not presumed would terrify ordinary persons excessively; and there is so much opportunity for magnifying or misunderstanding undefined menaces that probably as much mischief would be caused by letting them be prosecuted as by refraining from it.1</p>

<p>Error to Eaton. (Hooker, J.)</p> <p>Information for embezzlement. Respondent was convicted.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Ingham. (Gridley, J.)</p> <p>Assumpsit. Defendants bring error.</p> <p>The facts are stated in the head-note.</p>

<p>Garnishment — Of debt due one of several principal defendants — Not author, ized by How. Stat. sec. 8058 — Prwr to amendment by Act No. 128, Laws of 1885 — Effect of which Gourt decline to discuss— Where principal and ga/rnishee defendants are general partners — And plaintiff is a special partner in the firm — And an accounting is necessary to determine relative rights — Garnishee proceedings will not lie against one general partner in suit by special partner against remaining general partners— Debt, to be subject to garnishment, must be one for which an action at law can be maintained by principal defendant.</p> <p>1. Where in a suit against two defendants an affidavit for garnishment was filed which averred an indebtedness due to one of them, and the garnishee defendant made a motion to quash for that reason, and because the principal defendants and himself were general partners, and said plaintiff was a special partner in said firm, and that in order to ascertain the relative rights of the partners an accounting must be had, and supported such reason by an affidavit of the truth of the facts stated, which were not controverted,—</p> <p>Held, that under How. Stat. § 8058, prior to its amendment by Act No. 128, Laws of 1885, the first reason was sufficient to quash the garnishee proceedings; citing Fordv. Detroit Dry Dock Go., 50 Mich. 358, with approval.</p> <p>Held, further, that if said amendment changed the rule laid down in that case, which question the Court declined to discuss, the second' reason would sustain the action of the circuit court in dismissing' such garnishee proceedings.</p> <p>2. A claim, to be subject to garnishment, must be one for which the principal defendant can maintain an action at law, if due at time of garnishment, or to become due thereafter.</p>

<p>Divorce — Bill for on ground of extreme cruelly — Must specify specific acts —Or no proof adm issible on that branch of the case — Desertion— Held not established (see head-note 2) — Failure to support — See headnote S for facts amounting to.</p> <p>1. Where a bill for divorce on the grouud of extreme cruelty fails to specify any specific acts of cruelty, no proof is admissible on that branch of the case.</p> <p>3. Where a husband and wife left his farm and went to reside with her parents, and three months thereafter separated, but the proof fails to show whether he was driven away or left voluntarily, intending to desert his wife, a case of desertion is not made out.</p> <p>8. Where the proof is ample that a husband was of “sufficient ability” to furnish his wife a suitable maintenance, and that he grossly and wantonly neglected so to do, a decree will be granted the wife for an absolute divorce.</p>

<p>Guardian’s sale — Failure to give statutory bond — Wa/rds may confirm title1 after arriving at full age — Presumed to do so by accepting purchase money which guardian had invested for them — Bill to cancel deed obtained through fraud — See head-note 1 for facts held to warrant such relief.</p> <p>1. Where the land of minors was sold at guardian’s sale without the-guardian being required to give, or giving, the statutory bond, and the purchase money was invested, and paid to the wards after attaining their majority; and some years afterwards, the purchaser, who had been in possession of and improving the land, conveyed' the premises by warranty deed to a third party, who thereafter occupied it as his homestead; and another party, detecting the flaw in the title, applied to the wards to convey to him other lands, and without their knowledge included the land sold by their guardian-' in the deed, whereupon the grantee of the purchaser at the guardian’s sale applied to the heirs, who executed a deed to him confiran atory of the guardian’s deed:—</p> <p>Reid, that he could maintain a suit in equity to remove the cloud caused by the first deed of said minors, on the ground of fraud upon himself, to which they were not conscious parties.</p> <p>Held, further, that the doctrine that a right to set aside a conveyance for fraud is not assignable has no application to such a case.</p> <p>2. Whore a guardian sold and conveyed the land of her wards at guardian’s sale, investing the purchase money for their benefit, which was-paid to them after attaining their majority, and it appeared that she-had failed to give the statutory bond on such sale, the same not having been required by the probate court,—</p> <p>Held, that the title, if defective, was one which the wards could affirm, and that by receiving and retaining the proceeds of the sale-they had presumptively done so.</p>

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

<p>Error to Saginaw. (Gage, J.)</p> <p>Information for murder. Convicted of manslaughter.</p> <p>The facts are stated in the opinion.</p>

<p>Bank check — Indorsed in blank by payee's authorized agent — And delivered, to widow after payeds death — Which ocawrred on evening of day check was received amd indorsed by agent — Payment of by bank on presentment by such agent for widow — Without notice or knowledge of payee’s death— Will be protected in suit a gainst bank by payee's administrator as holder of check — To whom it was delivered by drawer after its receipt by him from the bank on settlement — It having been charged up in his account— Agent's indorsement had like effect as if made by payee — And payment was authorized by apparent condition of the paper — For which payee was responsible — Bank not liable on unaccepted check unless by way of estoppel — Acceptance must be in writing under How. Slat. sec. 1583— Buck paper not assignable under Id. sec. 7344 — Unaccepted check— Payee has no interest in drawer’s funds — Cannot maintain suit thereon against drawee.</p> <p>1. A merchant delivered his check in payment for a bill of goods to the vendor’s agent, who had authority to indorse and use the same for his principal. The agent at once indorsed the check in blank, but did not present it for payment, and on the night of the day he received it his principal died. He delivered the paper to the widow, and five days afterwards, at her request, collected the same, paying her the proceeds, the bank having no notice or knowledge of the death of her husband.</p> <p>The check was charged up in the drawer’s account, and returned to him, and he delivered it to the administrator of the husband’s estate, who sued the, bank, counting specially, in his representative character, as holder of the check, and on the common counts. The trial court directed a verdict for the plaintiff for the face of the check and interest.</p> <p>Held, that the agent’s indorsement had the same effect as if made by the principal, and that the payment was authorized by the apparent condition of the paper, for which the payee was responsible, and was protected.</p> <p>9. A bank is not liable on a check until certified or accepted, in the absence of some recognition by estoppel, which acceptance must be in writing under How. Stat. § 1683; and such a paper is not assignable under How. Stat. § 7344.</p> <p>8. Under the law as settled in this State the payee of an unaccepted check has no interest in the drawer’s funds, and cannot maintain an action against the bank thereon. Qrammelv. Carmer, 55 Mich. 201.</p>

<p>Error to Wayne. (Jennison, J.)</p> <p>Replevin. Plaintiff brings error.</p> <p>The facts are stated in the opinion and head-notes.</p>

<p>Ejectment— Writ of possession — Payment into court of assessed value of buildings and improvements — Under How. Stat. sec. 7839 — Must be made within one yea/r after entry of final judgment for the recovery of the premises — Statutory yea/r does not run pending review of same in Supreme Court.</p> <p>Under How. Stat. § 7839, which provides for the payment into court, in an ejectment suit, of such sum as shall he assessed for buildings and improvements, within one year after rendition of the judgment for the recovery of the premises,—</p> <p>Reid, that the statutory year runs from the time of entering final judgment in the cause, and is suspended pending the removal of the same to the Supreme Court for review.</p>

<p>Error to Muskegon. (Russell, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion and head-note.</p>

<p>Error to Muskegon. (Russell, J.)</p> <p>. Replevin. Defendant brings error.</p> <p>The facts .are stated in the head-note.</p>

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

<p>Justice's judgment — Entry of on docket controls, and cannot be' contradicted as to time of rendition in return to certiorari — No jurisdiction to render after statutory four days — Oertioi’mti—Justice's return will be taken as true as to matters not required to be entered on docket — Docket entities the best evidence of facts required to be so entered.</p> <p>1. Where the docket of a justice of the peace showed that a suit was tried before him on December 10, and that he took until December 15 to render his decision, under How. Stat. § 6945, on which day judgment was rendered against the defendant, who sued out a certiorari to the circuit court, and the justice returned that judgment was really rendered on December IS, and by 'mistake entered on the docket as of December 15,—</p> <p>Held, that the docket entry must control, and cannot be contradicted by the return. Mudge v. Naples, 58 Mich. 310.</p> <p>2. A justice has no jurisdiction to render a judgment in a case after the expiration of four days from its submission to him for final decision. How. Stat. §6945.1 2</p> <p>'3; The return of a justice to a writ of certiorari must be taken as true as to facts and occurrences not required by the statute to be entered upon his docket, and as to such facts the docket entries are the best evidence, and must prevail over his retu n. Galloway v. Corbitt, 53 Mich. 460.</p>

<p>Error to St. Clair. (Stevens, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion and head-note.</p>

<p>Homestead — Held and occupied under unrecorded deed — Conveyance of same by husband’s grantor with his consent indorsed on deed — Haring temporary absence of wife and without her knowledge— Coupled with husband’s abandonment of land — And occupancy for some twelve years of another homestead with his wife — The title to which was taken in her name —She having knowledge of occupancy of former homestead by good-faith holders— Under such second deed from husband's grantor — And never objecting thereto in his life-time — Destroys homestead or dower rights in such land — A person cannot have two homesteads at the same time — Infant son was bound by the acts of his parents.</p> <p>A. married man acquired the title in fee to forty acres of land, which he occupied for about two years as his homestead, clearing from ten to fifteen acres. He never recorded his deed, and after such occupancy his wife went to another portion of the State with his consent, leaving her husband on the farm. During her absence the husband’s grantor, with-his consent indorsed on such unrecorded deed, but without the wife’s knowledge, conveyed the land to a third party, and the title to same finally vested in defendant by several mesne conveyances, all warranties and all duly recorded. The husband left the land about the time of the execution by his grantor of said deed, and lived in another county, with bis wife, for about twelve years on premises purchased by him in her name, consisting of four village lots with a dwelling-house thereon, which they occupied as their homestead. During this time she knew how her husband had disposed of his interest in the former homestead, and that it was occupied by other parties, in good faith, under and through the deed executed with her husband’s consent, and asserted no claim to the land.</p> <p>Held, in an action of ejectment to recover said land, that her rights depended solely on the unrecorded deed to her husband, and that under the statute the defendant’s honest purchase, made under previous bona fide purchasers, left this deed precisely as if it had never existed.</p>

<p>'Statute of frauds — Sale of liquor in this case held, not to fall within — See opinion for facts.</p> <p>Where the owner of a hotel arranged with a tenant to pay for the liquor ■necessary to stock the bar, and to be repaid by a share of the bar receipts, and under such arrangement liquor was sold by plaintiff to the tenant, with the knowledge of the landlord, who agreed to pay for the same, which liquor was used under such arrangement, and ■the landlord’s share of the bar receipts was more than sufficient to ■pay for all advances made to and debts incurred by the tenant under ■such arrangement,—</p> <p>Held, that his promise was not within the statute of frauds, and ■that he was personally liable to the plaintiff thereon.</p>

<p>Replevin — Of logs cut under tax titles — from owner of original title — Can he litigate such title in replevin suit, plaintiff being in adverse possession of the land — Question considered, but not decided — Title to land— May be litigated in certain personal actions — Among which are suits upon covenants of warranty or seizin— Which directly involve state of the title — Trespass—Judgment in not evidence of title — Nor bar to ejectment between same parties for land, — Severance of pa/rt of freehold — Loes not change title as between wrong-doer and owner — If severed portion remains on land — Recovery in ejectment will establish title to it, so as to malee its subsequent removal unlawful — Tax certificate — Loes not give right of entsy on land prior to execution of tax deed — Adverse possession-—A question for theju/ry.</p> <p>Plaintiff cut pine timber from wild land's in Baraga county, under tax deeds, and the logs, with others owned by defendant Nester, were rafted to Marquette. Nester, claiming the original title to. most of the lands, took possession of the logs in dispute, and the same were replevied by plaintiff. On the trial plaintiff introduced testimony tending to show that he was in possession of the lands adversely to Nester, and the court instructed the jury that such possession was adverse and bona fide, and that Nester could not litigate the question of his title to the lands in said suit, it being a personal action, and directed a verdict for the plaintiff'.</p> <p>The Court, without passing upon this question, it not having been argued, left it open for future examination as affecting lands valued chiefly or only for timber, and, in reversing the judgment, Held :—</p> <p>1. That the claim that no case can be tried out of the county, when the title to lands comes in question, cannot be supported when stated so broadly ; that many cases may arise in which the question of title may come up for decision, upon covenants dr contracts, in suits not brought directly to try title or get possession ; among which are suits upon covenants of warranty or seizin, which directly involve the state of the title, and are mere personal actions.</p> <p>2. A judgment in trespass to lands is not a bar to an action of ejectment for the same premises between the same parties. Keyser v. Sutherland, 59 Mich; 455.</p> <p>8. It has not been considered that, as between the original wrong-doer and the true owner of land, the title to what is severed from the freehold is changed by the severance, whatever may be the ease as to strangers. Moores v. Wait, 3 Wend. 104; Morgan ®. Varick, 8 Id. 587.</p> <p>4. Where a part of the freehold has been (wrongfully) severed, but remains on the land, a recovery in ejectment (of the land) will establish title to the severed portion, so as to make its subsequent removal wrongful.</p> <p>5. There has never been any law in this State giving a right of entry on a mere tax certificate before deed.</p> <p>6. In this case the question of the character and good faith of plaintiff’s possession was for the jury.</p> <p>[This case has been again before the Court, and a full argument had, and in advance of the decision a fuller report is now deemed unadvisable. — Reporter.]</p>

<p>Error to Marquette. (Grant, J.)</p> <p>Case. Plaintiff brings error.</p> <p>The facts are stated in the opinion and summarized in head-note.</p>

<p>Error to superior' court of Detroit. (Ohipman, J.)</p> <p>Trespass. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Embezzlement — By clerk or agent of national bank of its funds — Is punish, able in the federal courts — State courts have no jurisdiction to try such offender.</p> <p>The State courts have no jurisdiction of a criminal prosecution against the clerk or agent of a national bank for the larceny and embezzlement of its funds, such offense being punishable in the federal courts under U. S. Revised Statutes, § 5209,and the jurisdiction of the State courts being expressly excluded by U. S. Revised Statutes, § 711.</p>

<p>Inguest— Upon view of dead body of stranger — Duty of circuit judge to allow account for same if satisfied that it is correct— Under How. Stat. secs. 9593-7 — Prima facie case to be made by claimant by affidavit or otherwise — Circuit judge may require such further proofs as he may deem necessary — Arbitrary rejection not permissible — Claim is against the State — Which cannot be sued for it — State Treasurer can only pay after allowance by circuit court — Board of Slate Auditors not authorized to act upon suchclaim — How. Stat. sec. 9593, one of repose — Constitutionality of provision for allowance by county or circuit court never before questioned — Hot now open to assault.</p> <p>1. Mandamus will lie to compel a circuit judge to consider the account of a coroner for fees and expenses incident to an inquest upon the view of the dead body of a stranger,under How. Stat. §§ 9593-7,1 and, if satisfied that the account is correct, indorse his order of allowance thereon. The statute contemplates that a prima facie case shall be made by the claimant, by affidavit or otherwise, of the reasonableness and correctness of the claim presented, and for that purpose the circuit judge may require such further proofs as he may deem necessary; but when such a case is made, and it satisfactorily appears to the court that the account presented is correct, the order for allowance should be made.</p> <p>2. What course might be taken in the event of the refusal of the circuit court to give the order of approval on the merits of the claim is not deemed necessary to decide, but it is suggested that “due process of law ” will in some manner be found available to the claimant before he can be deprived of hisywsZ rights.</p> <p>3. Such a claim is against the State, which body cannot be sued for it, and it is only after the order of allowance has been made by the circuit court that the State Treasurer is permitted to pay such claim.1</p> <p>4. Under article 8, § 4, of the constitution, a Board of State Auditors was created, authorized to examine and adjust all claims against the State not otherwise provided for by general law; but at that time the statutory provision for the allowance of this class of claims existed, and the Board of State Auditors have no jurisdiction over the same.</p> <p>6. The right and duty of the county or circuit court to make the order asked for in this case do not seem to have been questioned until now, and it is too late to urge that it was incompetent for the Legislature to requireáííc/i service of circuit courts. . Such action by the Legislature, followed by long and continued acquiescence by the people and the courts, unless in open and palpable violation of some clearly expressed provision of the constitution, should be allowed to control. Qooda.ll v. Henkel, 60 Mich. 882 (head-note 3).</p>

<p>Error to Lenawee, (Howell, J.)</p> <p>Assumpsit. G-arnishee defendant brings error.</p> <p>The facts are stated in the opinion, and in head-note 2.</p>

<p>Appeal from Ionia. (Smith, J.)</p> <p>Bill filed for appointment of receiver of assigned property. •Complainants appeal.</p>

<p>Marine insurance — Company only bound where agent has real or apparent authority — Which is limited by written commission — Courts will take judicial notice that November risks are greater than those taken in June —Insurance of yacht in tow — Cannot be construed as falling under description of cargo.</p> <p>1. An agent can only bind bis principal where he has either real or apparent authority.</p> <p>So held, where insurance agents held their authority under a writ-' ten commission, which gave them no power to issue policies except such as were signed by the president and secretary, and under the rules and regulations of the company, and subject to its instructions.</p> <p>2. Courts will take judicial cognizance that insurance risks in November are greater than those in June.</p> <p>8. Defendant’s local agents took a blank certificate for insuring cargoes, and erased the words “under deck, onboard the,” and inserted “the steam-yacht ‘The Vane,’ towed behind the steam-barge ‘R. G. Ingersoll,”’ which they assumed to insure under and subject to the conditions of an “open policy” of defendant, headed “Inland Open Cargo,” and which was not applicable by its terms to hull insurance.</p> <p>Meld, that there is no rule of construction that could include a yacht in tow under the description of cargo, and, if insured at all, it must have been without any limitations, and no agent can be presumed to have authority to make such insurance, if he should attempt it; that the certificate undertakes to bring under the policy something entirely foreign to its provisions, and cannot be sustained.</p>

(Gridley, J.) Appeal from order adjudging defendant guilty of contempt for non-payment of temporary alimony. The facts are stated in the opinion.

<p>Motion for rehearing — Denied where all points raised were presented and considered on original argument — Specific performance — Of verbal contract involving a continuous right — Decree should direct execution of necessary paper to secure it.</p> <p>1. A rehearing will not he granted on the ground of general and particular misapprehension of the record, and of the rights of the parties, where all the points raised were presented and considered on the original hearing.</p> <p>2. Every decree for the specific performance of a verbal contract involving a continuous right necessarily involves the execution of such a document or voucher as will secure it.</p>

(Tuttle, J.) Bill filed to secure a conveyance of certain land. De- . fendant James W. Heather appeals. The facts are stated in the opinion.

(Green, J.) Bill filed to dissolve a partnership and for an accounting. Complainant appeals. The facts are stated in the opinion and head-note.

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

<p>Statute of frauds — Verbal promise for debt of another — Held within the statute.</p> <p>On a review of the record in this case, held, that the claim of plaintiff as assumed by his counsel, and. which is really broader than the record warrants, is that of a verbal promise for the debt of another person, on which there is nothing indicated to remove it from the operation of the statute of frauds; and that the decision of the-court below that there could be no recovery is right.1</p>

respondent in the matter of the removal of the county-seat of Charlevoix county from East Jordan to Boyne City. The facts are stated in the opinion.

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

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

<p>Bequests to charge — Stating the law correctly — And in such clear and comprehensive manner as to be most easily understood — Should be given as presented — Unless general charge contains as clear a statement of the law —Most desirable for the consideration of the jury — Mistake of law — By payee in signing as maker on sale of note — Supposing his legal liability the same as if he indorsed the paper — No defense to suit on note — Introduction in evidence of note fair on its face — Makes prima facie case— Which must be overthrown by preponderance of evidence — Sale of note by payee — Who signs his name below that of payor — In suit by purchaser against him as maker, in absence of fraud or mistake, parol evidence inadmissible to show that he was to be liable as indorser — Buie different where paper is not full and complete on its face, leaving real intention of parties in doubt.</p> <p>1. Where for want of time the trial judge is not able to prepare and give, in his general charge, that clear and succinct statement of the law most desirable for the consideration of the jury, requests to charge which state the law correctly, and in such clear, terse, and comprehensive manner as to be most easily understood by the jury, should be given in the language in which they áre presented.</p> <p>3. Where the payee in a note sold it before maturity for a valuable consideration, and at the request of the purchaser signed his name below that of the payor,—</p> <p>Held, in a suit on the note, in which he claimed to have signed as an indorser, and supposed his legal liability would be thus measured, that such mistake was one of law, and no defense to the action.</p> <p>3. In a suit on a promissory note, fair on its face, the introduction in evidence of the note makes out a prima facie case for the plaintiff, to overcome which the burden of proof is on the defendant, who must establish his defense by a preponderance of evidence.</p> <p>4. The payee in a promissory note sold it before maturity for a valuable consideration, and at the request of the purchaser signed his name below that of the payor, thereby making it on its face a joint and several note, and in a suit thereon by the purchaser sought to show by parol testimony that it was agreed that his liability should be that of an indorser.</p> <p>Held, that the note being full and complete upon its face, and no fraud or mistake being imputed, it could not be changed ór modified by parol evidence.1</p> <p>5. When a promissory note is indorsed in blank, or the parties’ names are so placed upon the instrument, or the contract is so ambiguous upon its face, as to leave the real intention of the parties in doubt, resort may be had to parol testimony, and to all the circumstances surrounding the transactions of the parties having any bearing upon the subject, to establish the true relation of the parties to the note, and to each other.</p> <p>[The main point decided is so fully fortified by authorities cited in the opinion, p 479, that the briefs of counsel are omitted. — Reporter.]</p>

(Fuller, J'.') Bill for an accounting. Dismissed on general demurrer. Complainant appeals. The facts are stated in the opinion, and in head-note 1..

<p>Homicide — Proof of threats by respondent — Offered prior to evidence of homicide — Held properly admitted in this case — Where respondent is prejudiced by admission of testimony out of its order, discretion of trial _ judge will be regarded as abused — Service of warrant by tinder and deputy sheriff — Immaterial which officer holds the process — Which ' imposes on both the duty to arrest the respondent — And on Kim submission to such arrest — Information—Indorsement of names of witnesses on —Not always possible for prosecution to know, in advance of trial, names of rebutting witnesses, or those needed on the main case-^Some discretion must be allowed to tríal judge in allowing names to be indorsed— Insanity— Law correctly laid down in charge — See pages 498-j of opinion.</p> <p>1. On the trial of a respondent for murder, evidence of his threats made just prior to the killing was offered before proof of the homicide, and objected to on that ground.</p> <p>Held, that the testimony was competent, the objection going to the order, and not to the materiality, of the proof, and that the discretion exercised by the trial judge in receiving it was not error.</p> <p>Held, further, that in cases where justice demands a different course to be taken, and the respondent has been prejudiced by not adhering to the general rule, the discretion will be regarded as abused, and courts of last resort will correct such error.</p> <p>2. An under-sheriff, assisted by a deputy-sheriff, attempted to arrest a party on a criminal warrant at the time in the possession of the deputy, but both were acting in concert in its attempted execution, during which the party shot and killed the under-sheriff. On his trial for the homicide the warrant was offered in evidence, and objected to on the ground that it was held by the deputy-sheriff at the time of the shooting.</p> <p>Held, that it was immaterial which officer had possession of the warrant, which imposed on the deceased the duty to arrest the respondent, and upon him submission to the arrest.</p> <p>3. It is not always possible for the prosecution to know in advance what witnesses it may be necessary for the people to call when the trial commences, on rebuttal, or even in making out the main case, and there must necessarily be some discretion allowed to the trial judge upon this subject, that the ends of justice may be subserved.</p> <p>4. On a review of the charge of the court regarding the alleged insanity of a respondent on trial for murder (see pages 493-4 of opinion),— Held, that the views are in accordance with the doctrine held by the Court in Roberts v. People, 19 Mich. 401; Welch v. Ware, 32 Id. 77; People ». Finley, 38 Id. 484; People n. Mortimer, 48 Id. 37.</p>

(Gridley, J.) Respondent was convicted of violating the conditions of his pardon, under which he had been released from State prison. The facts are stated in the opinion.

<p>Act No. 145, Laws of 1881, known as the log lien law, constitutional— Statute declares the lien and forms a part of contract between log-owner amd contractor — Claim of workmen similar .to seamen’s wages — Owner of timbeo’presumed to know the law — Can so frame his contract as to protect the laborer by providing for payment of his wages in contract— Proceedings in rem — Notice of time and place of condemnation essential' to their validity — Legislature prescribes what notice shall be — Owner must have oppoi’tuniiy to contest validity of lien, and amount due— Affidavit for attachment under lien law — Sufficient if it states everything required by the statute — Failure to give reasonable notice to log-owner will not avoid thewrit — No valid judgment can be rendered against, logs — Service on April 22 — Of writ returnable April 28 — Reid sufficient.</p> <p>1. Act No. 145, Public Acts of 1881, giving a lien for labor performed in cutting and skidding logs by a laborer for a contractor, as against, the owner of the logs, between whom and the laborer there is noprivity of contract, as also the provisions for its enforcement, are not unconstitutional. The statute declares the lien, and, although there-is no direct privity of contract between the laborer and the owner of the logs, yet the law enters into and forms a part of the contract between the owner and contractor.1</p> <p>2. The labor of workmen in cutting, skidding, hauling, banking, and running saw-logs is of a similar character to that of seamen, enhancing the value of the forest product, and, by transporting it to a place of manufacture, makes that both valuable and available which with" out such labor would remain comparatively worthless. The owner of standing pine, when he makes a contract for lumbering, understands ^perfectly well that this labor must be performed, and that the law gives the laborer a lien upon the logs as security for his reasonable reward for his services; and he can so frame his contract as to protect the laborer of his contractor, and preserve his logs from liens, by providing in such contract for the payment of the men employed by the contractor.</p> <p>8. It is essential to the validity of proceedings in rem that notice shall be given of the lime and place of condemnation . What this notice shall be the Legislature must prescribe, but an opportunity must be given to the owner of the property to appear and contest the validity of the lien, and the amount due.</p> <p>4 An affidavit for attachment under Act No. 145, Laws of 1881, which states everything required to be stated by the statute to authorize the issuing of the writ, is sufficient, the form of the affidavit being prescribed by statute.1</p> <p>5. A failure to give a reasonable notice to the owner of the logs will not render the writ of attachment void,, but no valid judgment could be rendered against them, and they would not be affected thereby.</p> <p>6. Where a writ of attachment was issued to enforce a lien for labor on saw-logs on April 20, returnable April 28, and served on the owner of the logs on April 22, who appeared specially on the return-day to object to the jurisdiction of the justice,—</p> <p>, Held, that the notice was sufficient.</p>

(Mills, J.) Supplemental bill to restrain the collection of a judgment at law, and compel the owner to set off the same against the-amount claimed by complainants on a partnership accounting. The facts are stated in the opinion.

<p>'Taxation of costs — On appeal from clerk’s taxation — Circuit cowl should retax if action of clerk is found defective.</p> <p>•On appeal from the clerk’s taxation of costs in the circuit court, the case should not be remanded to that officer for retaxation, but the costs should be retaxed by the court if • the clerk’s action is defective.</p>

Mandamus to vacate an order punishing relators for contempt, and to restrain further steps to enforce an injunction granted against'them. The facts are stated in the opinion, and summarized in head-note 3.

<p>Assumpsit — On, promise of debtor to pay balance due on judgment, in consideration of stay of execution, by agreement with plaintiff — A former execution having been returned by mistake as satisfied — And the return homing been set aside on motion, and an amended one ordered but not in fact made — Both parties believing that payment could be enforced by execution — And acting on that assumption with equal means of knowledge — Such forbearance was a sufficient consideration for the promise —Plaintiff could not be deprived of his debt by misconduct or omission of officer.</p> <p>Plaintiff recovered a judgment against defendant and another, on which an alias execution was issued, and by mistake returned satisfied-, which return was set aside on motion, and the proper amendment ordered, but not in fact made by the sheriff.</p> <p>Immediately after this, defendant paid two hundred dollars on the judgment, and, in consideration of the plaintiff’s agreement to forbear the issuance of an execution for two weeks, agreed to pay the balance at the expiration of that time, which he failed to do.</p> <p>Held, in a suit on such agreement to recover such balance,- that plaintiff could not be deprived of his debt by the misconduct or omission of the sheriff; that defendant’s promise was to pay a just debt, which both parties thought, and probably correctly, could be enforced by execution, and acted on that assumption with equal means of knowledge; and that there was a sufficient consideration for said promise, which, if valid, could not be avoided by the subsequent action or inaction of anybody.</p>

<p>Contract~-To find purchaser of land — For all agent could gel above fixed price — Action on common counts for such excess — With bill of particulars fixing claim accordingly — Judgment for such excess and interest affirmed — One who determines action of purchaser secures the purchase —This can be done by representations of fact — And by reasoning and persuasion — Charge to jury in such a case — That the question was whether the solicitations and representations of agent in regard to the land determined action of purchaser — Held sufficient.</p> <p>Defendant agreed to give to plaintiff all lie could get over $100,000, if he could find a purchaser for a tract of land owned by defendant, and with which plaintiff was well acquainted from, former examinations. A sale was made through plaintiff’s intervention for $105,000, and plaintiff sued defendant on a common-count- declaration, containing a count for commissions earned in selling lands for defendant, accompanied with a bill of particulars claiming as due plaintiff $5,000 for his services. 1</p> <p>Held, that any one who determines the ’ action of a purchaser secures the purchase, and this can be done both by representations of fact and by reasoning and persuasion-, and that an instruction to the jury, that the question for their consideration was whether the solicitations and representations of plaintiff in regard to the land determined 'the purchasers ‘whether they would purchase or not, was sufficient.</p>

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

(Grant, J.) Bill to restrain collection of taxes. Defendants appeal. The facts are stated in the opinion, and in head-note 1.

<p>Error to Kent. (Judkin’s, J., presiding.)</p> <p>' . Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Township treasurer — Settlement with township — Suit to recover an alleged balance in his hands — Special finding of jury that settlement was had with town board each year during his term — And that balance found due on last settlement was paid to his successor — In absence of error of law, judgment for defendant affirmed.</p> <p>Where, in a suit by a township against an ex-treasurer to recover an alleged balance of township money in his hands, the jury found specially that the defendant settled with the township board each year during the time he was treasurer, and that on the last settlement a balance of $724.68 was found due the township, which he paid over to his successor in office,—</p> <p>Held, that it is not the province of the Court to consider th & facts further than becomes necessary to ascertain whether or not the law was correctly applied, and, it appearing that the rulings of the circuit judge could not have prejudiced the rights of the plaintiff, the judgment in favor of the defendant was affirmed.</p>

<p>Railway company — Property of subject to condemnation for public use — On making due compensation — lo an extentnot essential to the enjoymentof its franchises — Provision of How. Slat. sec. S350 — As ameiidcd'by Act BUh Laws of 1883 — Making company .whose road is crossed by another company liable for any of the expense of making such crossing — Is unconstitutional — Provision for keeping crossing in repair only justified by the necessities of the case — And should be limited to cost if crossing had not been made — Where manner of proposed crossing is unknown — Commissioners may assess damages on basis of a crossing on, above, or below grade — And should allow any additional expense or other injury occasioned by such crossing as a natural, necessary,.or approximate result— Bona fide attempt to purchase rights sought to be condemned — Must precede condemnation proceedings — And must be alleged in petition— Which must describe fully such rights. ■</p> <p>1. The property of a railroad company may be taken for public use whenever the necessities of the public require it, to an extent not absolutely necessary to successfully carry out the object' and purposes of the franchises granted to the company, and which are in their nature public; and the land occupied by-the company as ils-right of way may be taken by the State under its power of eminent domain, to the same extent as that of a private citizen, for either the use of another railway company or for a public highway, subject to the constitutional provision for due compensation, to be fixed by condemnation proceedings where necessary. Grand Rapids, JV. & L. 8. R. R. Co. •. G. R. & I. R. R. Co., 35 Mich. 273, and cases cited.</p> <p>8L How. Stat. § 3350, as amended by Act 174, Laws of 1883, in «o far as it provides for the payment by the railroad company whose road is crossed of any part of the expense of making such crossing, is unconstitutional.1</p> <p>1 The further provision that such company shall bear a proportion of the expense of keeping the crossing in repair is only justified by the necessities of the case growing out of the connecting of the two tracks, and should be limited, as near as may be, to what would have beén necessary to keep tbe track of the company whose line is thus ; crossed in repair at the crossing if the same had not been made;'and • this rule should be observed whether the crossing is made on, above, or . below grade. . ¡</p> <p>8. In fixing the compensation to be paid a railroad company whose track ' is crossed, the jury or commissioners, in case the manner of'the pro-' posed crossing is unknown, may assess the damages on the basis' of either of the three modes which may be adopted in making such crossing; and any additional expense created in the ordinary use of such road, or any other injury or damage to the company’s track, right of way, or franchise, occasioned by such crossing, and which may properly be considered as the natural, necessary, and approximate cause thereof, should be allowed the respondent.</p> <p>4. A bona fide efiort to agree for the purchase of any real estate, property, or franchise required by a railroad company for the purpose of its incorporation is a condition precedent to condemnation proceedings to acquire the same, and must be alleged in the petition filed for that purpose. . '</p> <p>5. A railroad company has a right to secure a crossing for its road-bed and cars over the track and right of way of another, and to make the necessary connection for that purpose, and it may also secure the right to cross another railroad with side tracks, and the use of its right of way for the location of switches, provided such use is not inconsistent with the enjoyment by the other company of its franchise; but in condemnation proceedings to acquire such rights, the petition must describe fully the rights sought to be condemned, and a petition’ which seeks for the condemnation of the title to the land covered by. the right of way is fatally defective.</p>

<p>Appeal from decree of probate court of Livingston county condemning right of way for a railroad.</p> <p>The facts are stated in the opinion in preceding case.</p>

Mandamus to'compel a county to apportion a sum, claimed to be due the State, among the several townships. The facts are stated in the opinion.

(Gage, J.) Bill filed for an' accounting by an alleged trustee, and to carry out the trust. Defendants appeal. The facts are stated in the opinion and head-notes.

<p>Error to St. Joseph. (Pealer, J.)</p> <p>Ejectment. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

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

<p>Buildings permanently annexed to freehold — Regarded as real estate— Representation of absolute ownership of — Affirms like title to land— Special notice of defense — Party confined to proof of fraud alleged— Title in fee — Not vested in a grantee in possession of ■land under a deed to be delivered on performance of an unperformed condition— Parol proof of contents of paper — Admissible on refusal of party to produce original after due notice.</p> <p>1. Buildings permanently annexed to the freehold are regarded as real estate, and an affirmative answer by an applicant for insurance on such, a building to the question in the application, “Have you the fee simple title?” constituted a warranty that he held a like title to the land on which the building was situated.</p> <p>2. Under the rules of this Court the defendant must confine his proof to the fraud or falsehood alleged in his special notice of defense.</p> <p>3. Proof that a party in the possession of land held the same under a deed to be delivered on the performance of a condition, coupled with evidence of its non-performance and of non-delivery, is sufficient to ' establish a breach of the grantee’s covenant that he held the title to the land in fee simple.1</p> <p>4. Parol proof of the contents of a paper in the possession of the adverse party who has been duly notified to produce the same on the trial, and fails so to do, is admissible.</p> <p>5. In an action on a policy of insurance by the insured, where the question of his title to the land on which the building was situated is in issue, the nature of plaintiff’s possession may be shown on his cross-examination</p> <p>O. A controversy over the delivery of a deed involves the intention of the grantor, and all [competent~\ testimony bearing on that question should be admitted.</p>

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