Volume 63 — Michigan Reports

(Green, J.) Bill filed for an accounting. Defendant appeals. The facts are stated in the opinion. Where a firm, engaged in lumbering business jointly with appellant, holds title to land in trust for its own and appellant’s benefit, and there has been no accounting, equity has jurisdiction of a bill brought for-an accounting and to wind up the joint transactions: Cochrane v. Adams, 50 Mich. 19; Clarke v. Pierce, 52 Id. 157.

(Gridley, J.) Bill by creditors of assignor under assignment law to set -aside a mortgage. Bill dismissed. The facts are stated in the opinion.

(Smith, J., presiding.) Replevin. Defendant brings error. The-facts are stated in the opinion, and in head-note 1.

(Montgomery, J.) Case. Defendant brings error. The facts are stated in the opinion. An action may be maintained against a physician and surgeon for an injury resulting to his patient, either from gross ignorance and want of skill, or from his negligence in treatment; and the two elements need not concur-. Wood, Master and Servant, 341.

<p>Appeal from Muskegon. (Russell, J.)</p> <p>Bill to set' aside a special street-paving assessment. Complainants appeal.</p> <p>The facts are stated in the opinion.</p> <p>The charter provision requiring the designation of “the district of lands and premises,” etc., is a condition precedent, and as such is mandatory: Hoyt v. East Saginaw, 19 Mich. 45.</p> <p>The council cannot delegate its authority to designate a district to the recorder: Scofield v. Lansing, 17 Mich. 437.</p> <p>Ratification by resolution will not supply the want of action: Williams v. Detroit, 2 Mich. 575.</p> <p>The provision of the charter requiring the valuation of lots to be entered on the roll is mandatory, even when the assessment is by frontage: Steckert v. East Saginaw, 22 Mich. 115.</p> <p>The charter provisions of the two cities are substantially the same: Laws 1861 (E. Saginaw), p. 50; Local Acts 1875 (Muskegon), p. 286.</p> <p>Local assessments for the improvement of streets are made in the exercise of the power of taxation: Williams v. Detroit, 2 Mich. 560; Woodbridge v. Detroit, 8 Id. 274; Motz v. Detroit, 18 Id. 523; Cooley, Const. Lim. 505.</p> <p>“The Legislature shall provide an uniform rule of taxation, except on property paying specific taxes, and taxes shall be levied upon such property as shall be prescribed by law:” Const, art. 14, § 11.</p> <p>“All assessments hereafter authorized shall be on property at its cash value:” Id. art. 14, § 12.</p> <p>The Legislature shall restrict the powers of taxation by cities and villages borrowing money, contracting debts, and loaning their credit: Id. art. 15, § 13.</p> <p>The constitutionality of charter provisions allowing assessments by frontage has been repeatedly “presented and elaborately argued at the bar and by the bench in this Court,” and sustained only by a divided Court: Williams v. Detroit, 2 Mich. 560; Woodbridge v. Detroit, 8 Id. 274; Motz v. Detroit, 18 Id. 495; Sheler v. Detroit, 45 Id. 431.</p> <p>“Unless there is some uniform rule of apportionment the burden is not a tax,” and “taxation according to value is * * * the only admissible method under our constitution:” Hoyt v. East Saginaw, 19 Mich. 48.</p> <p>The assessments constitute a lien upon complainants’ lands, and this cloud complainants are entitled to have removed in this proceeding: Scofield v. Lansing, 17 Mich. 447.</p> <p>The improvement was sufficiently described: Cuming v. Grand Rapids, 46 Mich. 150.</p> <p>The meaning of the word “adjoining” is touching or contiguous, as distinguished from lying near or adjacent: Webst. Diet. Adjacent; Holmes v. Carley, 31 N. Y. 289; In re Ward, 52 Id. 395, 397.</p> <p>. Such property is capable of identification and description, and that is all that is necessary. It is a frequent method of designating districts, and is accurate: In re Ward, 52 N. Y. 395, 397; Kendig v. Knight, 60 Iowa, 29; Beniteau v. Detroit, 41 Mich. 116.</p> <p>If the notice was defective, the defects were waived by the appearance of complainants before the council: Louden v. East Saginaw, 41 Mich. 18; Cooley, Taxation, 267 (note).</p> <p>If there be any defect in this resolution, it is only a defect in form; it has not affected the merits, nor has it injured or prejudiced the rights of* complainants: Albany & Boston Min. Co. v. Auditor General, 37 Mich. 396.</p> <p>The accidental omission of one or more descriptions does not invalidate the roll: Cooley, Taxation, 154.</p> <p>In this case the council saw fit to assess the expense on the property adjoining, according to frontage; this it had a right to do: Charter, § 138; Cooley, Taxation, 459, 461; Williams v. Detroit, 2 Mich. 560, 572; Motz v. Detroit, 18 Id. 495; Sheley v. Detroit, 45 Id. 431; Moale v. Baltimore, 4 Am. & Eng. Corp. Cas. 544, 548; Hoyt v. East Saginaw, 19 Mich. 39.</p> <p>The council had full authority to determine on what basis the assessment should be made, and decided to base it on frontage. Having so decided, the questions of value, shape, and depth became immaterial: Cooley, Taxation, 456 et seq.; Desty, Taxation, 1246-7; Williams v. Detroit, 2 Mich. 560, 572; Motz v. Detroit, 18 Id. 495; Sheley v. Detroit, 45 Id. 431; Moale v. Baltimore, 4 Am. & Eng. Corp. Cas. 544, 548.</p> <p>The improvement is a single one of a portion of the •■street, and it rested with the council to determine the width of the pavement, and to adapt it to the needs of the •street. Only one district was needed: Cuming v. Grand Rapids, 46 Mich. 150; Motz v. Detroit, 18 Id. 538, per Campbell, J.; Fairbanks v. Fitchburg, 132 Mass. 42.</p> <p>The occupation by the railway company is simply a use ■of the street, a bare easement at most, and can by no •stretch of the imagination be brought within the designation of a lot or premises fronting on the street: State v. Register of Deeds of Ramsay Co., 31 Minn. 354; Bridgeport v. New York & N. H. R. R. Co., 36 Conn. 255; Philadelphia v. Philadelphia, W. & B. R. R. Co.,33 Penn. St. 41; Koons v. Lucas, 52 Iowa, 177; Bagg v. Detroit, 5 Mich 336.</p> <p>If the proceedings are so defective as to invalidate the assessment, the common council has authority to order a new assessment for the same purpose: Bagg v. Detroit, 5 Mich. 348, per Campbell, J.; Byram v. Detroit, 50 Id. 56.</p> <p>The right to relief must rest entirely on the alleged ■defects in the proceedings, and is a strictly legal right, which should have been enforced in an action at law: Albany & B. Min. Co. v. Auditor General, 37 Mich. 391; Burt v. Auditor General, 39 Id. 126; Sinclair v. Learned, 51 Id. 335, 347.</p> <p>The work has been completed, and the complainants have received their share of its benefits, and should therefore pay -an equitable portion of the tax. They cannot seek the intervention of equity and at the same time refuse to do ■equity: Merrill v. Humphrey, 24 Mich. 170; Pillsbury v. Humphrey, 26 Id. 245; Albany & B. Min. Co. v. Auditor General, 37 Id. 397; Connors v. Detroit, 41 Id. 128; Sinclair v. Learned, 51 Id. 347; Byram v. Detroit, 50 Id. 56.</p>

<p>Liquor-dealer's bond — Approval of.</p> <p>Where, on application for the approval of a liquor bond, competent witnesses were examined, pro and con, touching the valuation of the property of one of the sureties, which was conflicting as to his pecuniary responsibility, and the town board rejected the bond,—</p> <p>Held, tbat the board having come to a deliberate conclusion on the testimony, mandamus will not lie to disturb the judgment thus exercised.</p>

(Fuller, J.) Bill filed to enjoin the assessment and collection of a tax. General demurrer sustained in court below. The divisiop of the township of Everett and school district No. 3, on the organization of the town of Wilcox, ousted the old board of inspectors from power to fix anj liability on the old district in favor of the new one: Township of Saginaw v. School District, 9 Mich. 541; People v. Ryan, 19 Id. 203.

<p>Error to Kent. ' (Montgomery, J.)</p> <p>Debt on bond. Defendants, except Isaac M. Weston, bring error.</p> <p>The facts are stated in the opinion.</p>

(Jennison, J.) Bill filed to have a deed absolute on its face declared a mortgage, and for foreclosure. Complainants appeal. The facts are stated in the opinions. The question whether the deed was absolute or a mortgage is to be determined by the agreement when it was taken, which could not be changed by any subsequent course of co'nduct short of a new agreement: 1 Jones, Mortgages, § 2?6.

(Howell, J.) Appeal from allowance of claim against an estate. Estate brings error. The facts are stated in the-, opinion.

(Montgomery, J.) Debt on appeal bond. Plaintiff brings error. The facts are stated in the opinion. Whether the non-payment of a judgment against only one of the appellants and in favor of the other is a breach of the condition of the bond, see Seacord v. Morgan, 3 Keyes (N. Y.), 636; Hood v. Mathis, 21 Mo. 308; Lutt v. Sterrett, 26 Kan. 561; Wood v. Orford, 56 Cal. 157.

(Hooker, J.) Assumpsit. Plaintiffs bring error. The facts are stated in the opinion. Forfeitures on technical grounds are not favored. The conditions in an insurance policy are for the benefit of the company, and may be waived by parol, though the policy provides for a written waiver: Ins. Co. v. Norton, 96 U. S. 234; Ins. Co. v. Doster, 106 Id. 30.

<p>Error to Bay. (Green, J.)</p> <p>Assumpsit. Garnishee defendants bring error.</p> <p>The facts are stated in the opinion.</p>

(Hooker, J.) Trover. Plaintiff brings error. The facts are stated in the opinion. Wholly irrelevant matter cannot be drawn out on cross-examination: North v. Metz, 67 Mich. 616.

(Smith, J.) Ejectment. Plaintiff brings error. The facts-are stated in the opinion. The recording of a deed by direction of the grantor is a sufficient delivery to enable the grantee to hold the land as against the grantor: Kerr v. Birnie, 25 Ark. 225; Corley v. Corley, 2 Cold. (Tenn.) 520.

- (Jennison, J.) Case. Defendant brings error. The facts are stated in the opinion. Where a person, by the exercise of ordinary care, might have avoided a danger, and fails to do so, he is guilty of such negligence as will bar a recovery: Williams v. Michigan Cent. R. R. Co., 2 Mich. 259; Lake Shore & M. S. R. R. Co. v. Miller, 25 Id. 274; Michigan Cent. R. R. Co. v. Campau, 35 Id. 468; Le Baron v. Joslin, 41 Id. 313; Billings v. Breinig, 45 Id. 65; Cooley, Torts, 674.

(Hart, J.) Bill filed to set aside a deed for fraud, and cancel notes and mortgage given for purchase price. Complainant appeals. The facts are stated in the opinion.

<p>Pleading — Joinder of counts — Fraud—Notice of</p> <p>1. A count in trover and one in case, for the alleged wrongful taking of personal property by a sheriff for the debt of a third party, can be joined, and it is error for the court to compel an election on the trial.</p> <p>2. Plaintiff sued a sheriff in trover for the alleged wrongful seizure-of a stock of goods under attachments and executions against a former owner, joining a count in case, in which he set forth specifically his ownership, and the denial by the defendant of the-same, coupled with the claim that plaintiff fraudulently claimed such ownership. Defendant justified under the attachments and executions as levied upon the property of the attachment debtor, but gave no notice of fraud.</p> <p>Held, by Sherwood, J., Campbell, C. J., concurring, that all facts constituting the fraud relied upon at the trial should properly have been set forth in the notice, and that, in the absence of any such notice, evidence of such alleged fraud should have been rejected. Chamflin and Morse, JJ., concurred in the result.</p>

(Chipraan, J.) Assumpsit. Plaintiff brings error. The facts ' are stated in the opinion. As between the consignees and the owner of the boat, a delivery to the owners, E. Eobinson & Co., would have been a protection for the vessel against any claim of the consignees: Hentz v. Steamship Idaho, 93 U. S. 575; Walker v. Detroit, G. H. & M. R. R. Co., 49 Mich. 446; Gibbons v. Farwell, 58 Id. 233.

(Emerick, J.) Assumpsit, under How. Stat. § 2035.1 Defendant brings error. The facts are stated in the opinion, and former report of the case, found in 53 Mich. 22.

(Speed, J.) Ejectment. Plaintiff brings error. -The facts are stated in the opinion. Land dedicated as a street does not become such without an acceptance of the dedication, manifested by some act of the public authorities, either formally confirming or accepting such dedication, or by exercising authority over it in some of the ordinary ways of improvement or regulation.

Clair. (Stevens, J.) Appeal from judgment of commissioner in summary proceedings. Case under the statute. Defendant brings error. The facts are stated in the opinion.

<p>Chancery appeal — Gift inter vivos — Delivery and acceptance of— Evidence — Decree—Res judicata.</p> <p>1. Where proofs are taken in open court, either party has forty days from the settlement of the case in which to appeal, provided forty or more days have elapsed since the entry of the decree. Gale v. Gould, 40 Mich. 62.</p> <p>2. Where an administrator was made a party to a bill in chancery in his representative character and as one of the heirs at law of the deceased, and the decree disposed of his rights as administrator and established certain rights in him to .the fund as such heir, from which he gave due notice of appeal, but filed his individual bond, which did'not purport to cover his representative rights,—</p> <p>Held, that no appeal was ever perfected by him as administrator.</p> <p>Held, further, that had he filed the bond in both capacities it would have been sufficient. Warner v. Whittaker, 5 Mich. 241.</p> <p>8. A father, desiring to distribute his property during his life-time, reserving its use to himself, conveyed forty-nine acres of. land to a son, taking back a note for the purchase price, payable to his heirs four years after his decease, with interest payable to himself, but to cease at his death; said note being secured by a mortgage on the land with like conditions as the note as to payment.</p> <p>Held, that the transaction constituted a valid gift inter vivos to the heirs as to the principal sum; that the interest of the donor made it necessary, under the circumstances, for him to retain the actual possession of the note for his own security; and that, by placing the mortgage on record, he had done all he could to make a delivery consistent with his own rights in the paper, and became a trustee for the heirs in the custody of the instrument by implication of law, and they alone could enforce payment of the principal.</p> <p>4. To constitute a valid gift inter vivos there must be a delivery, actual or constructive; but it is not necessary that it be directly to the donee, but such delivery may be to some person for him, as to a trustee; and in all cases the disposition made must be such as will place the jus disponendi beyond the donor's power to recall.</p> <p>6. It requires less positive and unequivocal testimony to establish the-delivery of a gift from a father to his children than between persons not related, and where there is no suggestion of fraud or undue influence very slight evidence will suffice.</p> <p>6. A note payable to “the heirs of Cyrus K. Francis” is payable to his-legal heirs in the popular sense of that term, which refers to a class of persons then in being, who bore that relation to him which would constitute them his legal heirs at his death. Under our .statute, such legal heirs are the children living at the time of' the ancestor’s death, and the issue of any deceased child.</p> <p>7. The acceptance of a gift need not be made immediately, but is sufficient if made before revocation by death or otherwise.</p> <p>8. A father sold a farm, and took a mortgage note for the purchase prihe, payable to his legal heirs, with interest reserved to himself during his life-time, and to cease at his death. One of his sons assigned his interest in the note and mortgage to a third party some years before his father’s death.</p> <p>Eeld, that this was evidence of his acceptance of the gift, which, being made to him jointly with the other heirs, and being beneficial, inured to their benefit.</p> <p>9. A father conveyed a parcel of land to a son, taking back a mortgage note for the purchase price, payable to bis legal heirs,, with interest payable to himself during his life-time. He commenced a foreclosure suit for accrued interest, making the son sole defendant, and secured a decree fixing the amount of interest due on the mortgage, and the amount of principal thereafter to become due, and ordering a sale of the entire premises in default of payment thereof by a fixed date; and, in case of sale, directing the payment of the sum so found due, and the payment into court of the balance of the purchase price. Payment was made of the amount due on the decree, and no sale was ever made thereunder.</p> <p>Eeld, that the object of the bill was to foreclose for non-payment of interest, and that the father could not foreclose for the principal, which could never become due in his life-time; that the proper parties to litigate as to the ownership of this principal sum were not before the court, and that their co-heir could not, by his silence or inaction, admit away their rights; and that, tbe decree was not resjudicata in a suit brought in the interest-of such heirs to settle the right of the father’s estate and their own to the principal of the mortgage.</p>

Case made from Wayne. (Jennison, J.) Claim filed under assignment law. Defendant brings error. The facts are stated in the opinion. It is of no consequence that immaterial facts were improperly found; the judgment must stand: Tower v. Detroit, L. & L. M. R. R. Co., 34 Mich. 328, 337-8; Gillam v. Boynton, 36 Id. 236. Letters patent are prima facie evidence of utility and novelty: Curtis’ Patents, §§ 30,358: Lehnbeuter v. Holthaus, 105 U. S. 94.

(Gridley, J.) Bill filed to enjoin suit for breach of covenants in deed. Complainant appeals. The facts are stated in the opinion. Smith’s knowledge that the title was defective is no defense at law: Rawle, Gov. (4th ed.) 115, 117, 118.

(Hooker, J.) Appeal from order refusing leave to file bill of review. The facts are stated in the opinion. Chancery rule 101 prohibits the bringing of a bill of review after the time for appeal has expired, except on newly-discovered evidence, unless upon reasons satisfactory to the court: Benedict v. Thompson, Walker, Ch. 446. Having no statute on the subject, the usual chancery practice governs, and there is nothing unusual in this case.

<p>Certiorari — Evidence—Appeal.</p> <p>1. The conclusion of a justice of the peace rejecting defendant’s claim of set-off, after hearing testimony in support of and against the same, cannot be reviewed on certiorari.</p> <p>2. In a suit in justice’s court the plaintiff’s claim was proved by entries in his books, which he produced, and swore to posting the charge in the usual course from the day-book into the ledger, but that the original entry was made by an employe, who was not sworn. The defendant removed the judgment by certiorari to the circuit court, alleging that there was no legal evidence in support of plaintiff’s claim, where it was affirmed. The record failed to show that this objection was made before the justice.</p> <p>Held, that the testimony, not being objected to, proved the claim.</p> <p>3. Cases ought not, in fairness, to be brought up on certiorari to review questions of evidence which can be rectified on appeal and the statute does not contemplate reversals of judgments on technicalities when no injustice appears.</p>

(Hart, J.) Bill filed to foreclose a mortgage. Complainant appeals. The facts are stated in the opinion. The filing of the sheriff’s deed in the register’s office was a sufficient compliance with existing statutes: Rev. Stat. 1846; p. 569; C. L. 1857, p. 1365; C. L. 1871, §§ 6920-1; Doyle v. Howard, 16 Mich. 261. Such filing was all the notice required: Thomas, Mortgages, 152; Williamson v. Brown, 15 N. Y. 362, 364; Reed v. Gannon, 50 Id. 345, 349.

(Stickney, J.) Bill filed to reform mortgage taken in agent’s name on sale of property of principal, and declare his ownership of security. Defendants appeal. The facts are stated in the opinion.

(Parrish, J.) Information for manslaughter. Respondent was convicted. The facts are stated in the opinions. Since the decision in People v. Olmstead, 30 Mich. 431, respondent could not be convicted of this offense under the count for statutory manslaughter. Where an examination is waived, the prosecuting attorney, in filing an information, must confine himself to the offense charged in the warrant.

(Grant, J.) Bill filed to remove an assignee, and for other relief. Defendant Nathan Mayer appeals. The facts are stated in the opinion.

<p>Appeal from Ionia. (Smith, J.)</p> <p>Bill in aid of execution. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

(Mills, J.) Ejectment by divorced woman for unássigned dower. Defendants bring error. The facts are .stated in the opinion, and in Rea v. Rea, 53 Mich. 40. Alimony having been granted plaintiff, payable out of defendant’s estate, and made a lien thereon (Rea v Rea, 53 Mich. 40), dower is barred: Tatro v. Tatro, 18 Neb. 395; Stewart v. Stewart, 43 Ga. 294.

(Mills, J.) Assumpsit. Defendant brings error. The-facts are stated in the opinion. Any contract made by a public officer to increase his fees,, and which may lead to a violation of the rights of others, is. void: Greenhood, Pub. Pol. Cont. Eule 285, p. 337, and. cases cited. Any contract for the use of a public office for private gain is void: Id. Eule 279, p. 334, and cases cited.

(Emerick, J.) Assumpsit. Defendant ' brings error. The facts are stated in the opinion. As to recovery of loss of profits as damages in suit for violation of labor contract, see 1 Suth. Dam. 106, 109; McKinnon v. McEwan, 48 Mich. 108; Allis v. McLean, Id. 428; Goodrich v. Hubbard, 51 Id. 68; Aber v. Bratton, 60 Id. 357.

(Smith, J.) Debt on recognizance under fraudulent debtors’ act. Plaintiff brings error. The facts are stated in the opinion. The objections taken are too uncertain and indefinite to avail the defendant: Michigan State Ins. Co. v. Soule, 51 Mich. 313; Jochen v. Tibbetts, 50 Id. 35. All objections which could be waived, and which were omitted in the motion, must be deemed waived: Evanston v. Gunn, 99 U. S. 665.

(Stickney, J.) Bill filed to set aside an assignment of certain mortgages as fraudulent. The facts are stated in the opinion.

Case made from Kent. (Montgomery, J.) Information to test right to office. Relator brings error. The facts are stated in the opinion.

(Mills, J.) Assumpsit. Defendants bring error. The facts are stated in the opinion. Proof of usage is admitted either to interpret the meaning of the language of the contract, or to ascertain its nature and extent, when the meaning is equivocal and obscure, or in the absence of expicss stipulations: Cutter v. Powell, 6 T. R. 320; Vallance v. Dewar, 1 Campb. 503; Noble v. Kennoway, 2 Doug. (K. B.) 510; 1 Greenleaf, Ev. § 292.

(Chambers, J.) Bill to enforce the performance of an oral agreement for B, lease. Bill dismissed. Complainant appeals. The facts are stated in the opinion. Where a contract is reduced to writing, all previous parol agreements regarding the same matter are merged in and extinguished by the written one: Street v. Dow, Har. Ch. 427-8; Adair v. Adair, 5 Mich. 210; Savercool v. Farwell, 17 Id. 319; Martin v. Hamlin, 18 Id. 364.

(Jennison, J.) Assumpsit. Plaintiff brings error. The facts are stated in the opinion. Plaintiff’s claim has no legal, moral, or equitable foundation : Thurston v. Percival, 1 Pick. 415. As to recovery under illegal contracts, see Myers v. Meinrath, 101 Mass. 366; Horton v. Buffinton, 105 Id. 399 ; Ladd v. Rogers, 11 Allen, 209; Gregg v. Wyman, 4 Cush. 322; Duffy v. Gorman, 10 Id. 45.

(Jennison, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion. The court erred in permitting the due-bill to be taken to the jury-room: In re Foster’s Will, 34 Mich. 21; Kalamazoo Novelty Manufacturing Co. v, McAlister, 36 Id. 327; Chadwich v. Chadwich, 52 Id. 545. The taking of the due-bill to the jury-room was discretionary with the court: Canning v. Harlan, 50 Mich. 320.

<p>Appointment of guardian — Appeal to circuit court — Certiorari . — Married woman as guardian.</p> <p>1. An appeal lies to the circuit court from the order of the probate court appointing a general guardian for a minor, and on such appeal the circuit judge has the power to vacate such order and make a new appointment; and it is his duty to ascertain, as far as possible, the wishes of the deceased father concerning the custody of the infant, as also all other facts bearing on the selection of a proper custodian. Taff v. Hosmer, 14 Mich. 259.</p> <p>2. No authority is given by statute for an appeal from the action of the circuit court in such cases to the Supreme Court, which can only be reviewed on certiorari, which allows no review of decisions of fact or discretion, unless, perhaps, where there has been no such exercise of the latter as conforms to the rules of law applicable to such cases.</p> <p>3. A married woman is a competent person to be appointed guardian of a minor (Palmer v. Oakley, 2 Doug. 456), and she may become principal in the required statutory bond.1</p> <p>[The opinion is so decisive of the points raised that a summary of the briefs of counsel is omitted. — Reporter.]</p>

<p>Mandamus to compel approval of liquor bond.</p> <p>The facts are stated in the opinion.</p>

. Joseph. (Pealer, J.) Bill to establish title to land and restore deed fraudulently destroyed. Defendants appeal. The facts are stated in the opinion. The conclusions of the trial judge as to the facts will not be disturbed unless he is clearly in error: In re Wool, 36 Mich. 299; Sager v. Tupper, 42 Id. 605; Matteson v. Blackmer, 46 Id. 393; Griffin v. Nichols, 51 Id. 575. Cases of lost ov destroyed deeds are especially within equity jurisdiction: 1 Story, Eq.

(Mills, J.) Assumpsit. Plaintiff brings error. The facts are stated in the opinion. The addition of their official title could not relieve defendants of legal obligation under the lease: Tilden v. Barnard, 43 Mich. 376; DeBian v. Gola, 24 Am. Law Reg. 781, and note. Even if plaintiff had supposed he was contracting with a corporation, when none in fact existed, defendants are liable: 1 Pars.

(Newton, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion. A corporation can only be sued in the jurisdiction of its corporate existence, in the absence of contrary statutory regulations: Detroit F. & M. Ins. Co. v. Saginaw Circuit Judge, 23 Mich. 492; Dewey v. Central Car & Mfg. Co., 42 Id. 399.

(Chipman, J.) Trover. Plaintiff brings error. The facts are stated in the opinion. The duty of a common carrier is to carry the goods safely, and deliver them to the proper party, and he is only excused from so doing by the act of God, or of the public enemy: Ang. Carr. § 67. Conversion consists of any tortious act that deprives the •owner of his goods, wholly or but for a time (3 Cooley’s Bl.

<p>Findings of fact — Practice in Supreme Court,</p> <p>1. Upon the facts found by the circuit judge in this case (see opinion, pp. 352-3), his conclusions of law were well founded, and the judgment is affirmed.</p> <p>2. In reviewing the findings of fact of a circuit judge it is not the province of the appellate court to weigh the testimony given in support of any of such facts, but to determine only whether there was relevant and competent testimony given in the case tending to support such findings.</p>

(Fuller, J.) Appeal from an administrator’s final accounting in probate court. The facts are stated in the opinion.

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

<p>Manumission of minor — Special verdict of jury.</p> <p>In a suit by a father to recover wages due a deceased daughter, the-jury rendered a special verdict showing such wages amounted to $195, of which $122 was paid her before becoming of age, leaving a balance of $78 her due. In answer to a special question,, the jury found that there was a contract between the father and the defendant with relation to the daughter’s wages, but this-finding was opposed to the uncontradicted testimony of the-father, and it clearly appeared that the daughter had been manumitted, She died intestate, and no administration had been ' taken on her estate.</p> <p>Held, that the special verdict was consistent with the fact that the daughter was entitled to receive her wages, and that, if anything was due her at time of her death, it could not be recovered in such action.</p>

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

(Speed, J.) Bill filed to set aside deed and for reconveyance. Bill dismissed on demurrer. The facts are stated in the opinion.

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

(Jennison, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion. As to waiver by defendant of breach of contract (see headnote 1), see Moore v. Detroit Locomotive Works, l4 Mich. 266-7, and cases cited; Bowman v. Teall, 23 Wend. 306.

Habeas corpus to determine the legality of the detention ■of petitioner for violation of an ordinance of the city of ’Grand Rapids.

<p>Consent orders and decrees — Partnership—Agreement for sale not dissolving.</p> <p>1. Orders and decrees made by consent, and with full knowledge of the facts, are binding upon the parties consenting, and cannot be gainsaid so long as they remain in force.</p> <p>So held, where a bill was filed to dissolve a partnership and settle its affairs, and a consent order was made appointing a receiver, in which the names of the members 'composing the firm were set forth, and the defendants afterwards, in their answer, denied that complainant was a member of the firm.</p> <p>2. Where a member of a firm agreed with a clerk in its employ to sell his interest, the clerk to pay for the same in monthly payments, and to remain in the firm’s store and represent such interest, which was to become his on full payment, after which agreement the vendor was held out as a member of the firm in transacting its business,—</p> <p>Held, that such arrangement did not destroy the existing partnership relation. , •</p>

<p>Husband and wife — Separation agreement — Repudiation of.</p> <p>Where a husband purchased a parcel of land with funds claimed by his wife, and she accepted a mortgage on the entire tract for a given sum in full for money so advanced, and afterwards a separation took place, and by agreement a, portion of the farm was conveyed to the wife, with an express agreement for the release of the portion retained by the husband from the mortgage, which she failed to keep, and afterwards sought to foreclose the mortgage on the entire land,—</p> <p>Held, that she was bound to repudiate the separation agreement entirely, if at all, and could not retain the benefits derived thereunder and the mortgage also.</p>

<p>Municipal corporations — Opening streets — Condemnation of land— Abandonment of proceedings — Certiorari.</p> <p>1. Where, under its charter, a city has unlimited power to open streets, if the land to do so is acquired or obtainable, it does not-concern private persons what streets the council open, where the right of way has been obtained. Long v. Battle Creelc, 39 Mich. 323.</p> <p>2. Proceedings were taken by a city to open a street, and the jury awarded $800 damages to a land-owner, which award was confirmed, and not complained of as insufficient. The council authorized a release of the land condemned to the land-owner on her release to the city of the damages awarded, which offer was refused, and the land-owner brought certiorari to set aside the condemnation proceedings for certain alleged irregularities in the preliminary action of the common council, including an alleged failure to hold any preliminary treaty with the plaintiff, who-made this objection before the recorder when the jury was ordered.</p> <p>Meld, that plaintiff cannot, at the same time, insist upon the-street, and that it is not a street. She can object to the unlawful use of her land, but the only legal redress she can get in the certiorari proceeding is the prevention of such unauthorized use, and she cannot set up grievances for her neighbors, nor oppose-a street that does not take her land.</p> <p>Meld, further, that it was competent for the city to take-plaintiff at her word, and abandon the proceedings against her; and it was no more than reasonable to ask her to choose between, such abandonment and the acceptance of damages.</p> <p>Meld, further, that as the city made this offer, which plaintiff' declined to act upon, she has no equitable claim to prosecute her writ, which is based on no merits, and not necessary to her protection.</p>

<p>Replevin for beasts distrained — Assessment of damages.</p> <p>1. The usual judgment in replevin, when not given on a trial on the merits, is merely preliminary to the final determination of damages on the inquest awarded.</p> <p>2. Under How. Stat. § 8375, the defendant, on nonsuit of the plaintiff, who has replevied the distrained property, •, may have an assessment covering every claim arising out of the distress and damages done him by the beasts distrained.</p>

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

<p>IAbel — Innuendo—Pleading—Privileged publications — Notice of justification — Practice in circuit courts.</p> <p>1. The office of an innuendo is to aver the meaning of the language published, and if such meaning is plain no innuendo is needed, as its use can never change the import of the words used, nor add to nor enlarge their sense.</p> <p>■g. Where a newspaper article charged, in substance ', official oppression, and unwarranted abuse of poor men by the officers of the law, in a certain township, giving special instances of such alleged abuse by other officers than the plaintiff, who sued for libel, which general charge was followed by a special instance of abuse by the plaintiff, coupled with a general allegation as to the treatment of ragged and poor men by “ these fellows,”—</p> <p>Held, that the term ‘ ‘fellows ” manifestly included plaintiff,, without the aid of any innuendo.</p> <p>Held, further, that the average reader knew what the article-meant, and the official misconduct therein imputed to plaintiff, and the services of a special pleader were not necessary to explain its meaning to the average citizen out of court; nor was it necessary to inform the court or jury, at the trial, what the publication was about, cr its import in regard to plaintiff’s official action-in said township.</p> <p>S. The office of pleading is to make clear and certain the matters complained of; and when a publication claimed to be libelous has a clear and certain meaning upon its face, there can be no better pleading than to set out the article in terms, and in full when all of it is pertinent to the issue; and the addition of an innuendo, when none is necessary, can add nothing to a clear perception of its meaning, but tends rather to cumber and obscure it.</p> <p>4. A publication charging a deputy-sheriff with arresting and handcuffing men without right, and oppressing the poor and friendless-under color of his office, charges offenses against humanity and decency, which, if not punishable as crimes under the laws of this State, certainly ought to be. It is clearly libelous, and not privileged, and, if untrue, the publisher must respond for the-damages done by 'its publication.</p> <p>5. The reputation of a public officer cannot be damaged or destroyed, by false imputations upon his morality or honesty, without redress; and it serves no useful purpose to the community to falsely blacken the character of a public official, or destroy the confidence of the people in his integrity.</p> <p>6. "Where a publication is plainly libelous upon its face, there is no-sound reason in law why the court should not so decide; but if there is any doubt as to its meaning, so that extrinsic evidence is-needed to determine its character as actionable or non-aciionable, it is the province of the jury, under proper instructions from the-court, to determine its significance.</p> <p>7. While the order of proof on the trial of a case is sometimes discretionary, it is not a safe practice to call upon a court to pass upon a proposed statement of fact which is irrelevant unless shown to-apply to the opposite party, without at least laying a foundation by showing that the witness can answer as to its application.</p> <p>8. A general justification requires the statements to be proved as-alleged in the libel, and not otherwise. Bailey v. Kalamazoo Pub. Co., 40 Mich. 251.</p> <p>9. Plaintiff was a deputy-sheriff, and sued defendant for an alleged libelous article charging general misconduct on the part of the-officers of the township in which plaintiff resided, and connecting him with one specific wrongful act. On the trial the testimony of the author of the article as lo general rumors of official misconduct in said township, but not connected with plaintiff personally, was rejected as immaterial.</p> <p>Held, not error; that, as held in Lewis v. Soule, 3 Mich. 514, general statements of misconduct, not connected with the plaintiff, are not actionable, and that no other rule would be consistent with reason, it being a matter of every-day experience that persons are very apt to use exaggerated language concerning the people of places and neighborhoods which neither they, nor any one else, would regard as-injurious to particular individuals not specified.</p>

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

<p>Error to superior court of Grand Bapids. (Parrish, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to superior court of Detroit. (Chipman, J.)</p> <p>Assumpsit for a deficiency on mortgage foreclosure. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

(Chipman, J.) Action against garnishees for goods alleged to have been purchased in fraud oi creditors. Plaintiff-brings error. The facts are stated in the opinion.

<p>Negligence — Accidental injury.</p> <p>In this case the record is held to show that the injury to the plaintiff, for which he brings suit, wa3 purely accidental, and the judgment in favor of the defendant is affirmed.</p>

(Montgomery, J.) Bill to enjoin tbe collection of a drain tax. Complainants ■appeal. Tbe facts are stated in tbe ■opinion. The township is interested in these drain proceedings: Township of Whiteford v. Probate Judge, 53 Mich. 134; and -should be made a party, for the cloud on complainants’ lands would not be removed by enjoining the action of the treasurer: Thomas v. Gain, 35 Mich. 165.

<p>Sunday contract — Non-joinder of defendant.</p> <p>In this case the judgment below was affirmed. For reasons see opinion.</p>

(Smith, J.) Case for conversion of timber. Defendants James H. and. Thomas P. Flood bring error. The facts are stated in the opinion.

(Smith, J.) Certiorari by defendant from judgment of justice rendered after filing of statutory affidavit for removal of cause. The facts are stated in the opinion.

<p>Error to Delta. (Grant, J.)</p> <p>Information for embezzlement. Respondent convicted.</p> <p>The facts are stated in the opinion. ■</p>

(Chambers, J., presiding.) Information for larceny from the person. Respondent convicted. The facts are stated in the opinion.

(Chambers, J.) Assumpsit. Plaintiff brings error. The facts are stated in the opinion. The recital of a consideration in a deed is merely to give it effect as a conveyance, and for any other purpose parol evidence is resorted to to show the real consideration:- Strohauer v. Voltz, 42 Mich. 447. Such recital is not evidence, in favor of the vendor, of the actual consideration: Mowrey v. Vandling, 9 Mich. 41.

<p>Appeal from Shiawassee. (Newton, J.)</p> <p>Bill to set aside drain tax. Complainants appeal. •</p> <p>The facts are stated in the opinion.</p>

(Joslin, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion. On the question of taking a case from the jury, counsel cite following authorities: Teipel v. Hilsendegen, 44 Mich. 461; Peterson v. Anderson, Id. 441; Demill v. Moffat, 45 Id. 412; Woodin v. Durfee, 46 Id. 427; Marcott v. M., H. & O. R. R. Co., 47 Id. 1; Somers v. Losey, 48 Id. 294; Winchester v. King, Id. 281.

Case made from Monroe. (Joslin, J.) Action for failure to require bond under Act-94, Laws of 1888. Defendant brings error. The facts are stated in the opinion.

Appeals from St. Clair. (Stickney, J., presiding.) Bills filed to set aside assessments. Complainants appeal. The facts are stated in the opinions.

<p>Error to Kent. (Montgomery, J.)</p> <p>Replevin. Plaintiffs bring error.</p> <p>The facts ;are stated in the opinion.</p>

(Bamsdell, J.) Bill by administrator to set aside decedent’s deed as fraudulent as to creditors. Complainant appeals. The facts are stated in the opinion.

<p>Error to superior court of Grand Rapids. (Parrish, J.)</p> <p>Case. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

(Jennisou, J.) Creditors’ bill. Complainants appeal from decree dismissing bill. The facts are stated in the opinion. As to invalidity of mortgage for failure to place on record, see Kohl v. Lynn, 34 Mich. 360; Fearey v. Cummings, 41 Id. 376; Talcott v. Crippen, 52 Id. 633. As to construction of How. Stat. § 6193, making unrecorded mortgage void, etc., see Cooper v. Brock, 41 Mich. 488.

<p>Constitutional law — Object and title of.aet.</p> <p>Act No. 175, Laws of 1888, providing for “the incorporation of merchants’ mutual insurance companies, and to regulate the business of insurance by merchants’ and manufacturers’ mutual insurance companies,” is unconstitutional, the title exisressing two objects and the act embracing two subjects, which defects are fatal to the whole act.</p> <p>[The point decided has been so often passed upon, and so exhaustively discussed in former opinions, that a summary of the briefs of counsel is omitted. — Eepoeteb.]</p>

Mandamus. Application to compel circuit judge to vacate order dismissing an appeal in proceedings had before him to dissolve an attachment. The facts are stated in the opinion.

(Joslin, J., presiding.) Bill to set aside conveyance as.fraudulent as to creditors» Defendants appeal. Tho facts are.stated in tbe opinion.

<p>Highways — Location and width of.</p> <p>1. How. Stat. § 1315, was not intended to abrogate any public highway which had become such by use, but simply declares that, where such highways are situated on section or quarter-section 'lines, their center line shall be such section or quarter-section lines.</p> <p>2. Where the location of a highway by user was in dispute, one party claiming that the center line as used was identical with the quarter line, and the other that such quarter line was a considerable distance east of such traveled track,—</p> <p>Held, that if the first claim was correct the limits • of such highway would be two rods on each side of the quarter line, but, if the second claim was correct, the highway boundary would be two rods from the center of the traveled track, unless controlled by such facts as would show that private owners had obtained a prescriptive right against the public, so as to reduce the width of the'road to less than four rods, and the court should have left it for the jury to find where the highway by user was.</p>

<p>Error to Muskegon. (Bussell, J.)</p> <p>B,eplevin. .Plaintiff- brings error.</p> <p>The facts p,re stated in the opinion.</p>

(Russell, J.) Trover. Plaintiff brings error. The facts are stated in the opinion. The force of a grant of administration is confined to the jurisdiction granting it: Vickery v. Beir, 16 Mich. 50; Sheldon v. Rice Estate, 30 Id. 296; Thayer v. Lane, Walker, Ch. 200; Apperson v. Bolton, 29 Ark. 418; Story, Confl. Laws, § 512.

<p>Appeal from superior court of Grand Rapids. (Parrish, J.)</p> <p>Bill filed to set aside a mortgage. Defendant Norton B. Holmes appeals.</p> <p>The facts are stated in the opinion.</p>

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

(Beach, J.) Summary proceeding to recover possession of leased premises. Defendant brings error. The facts are stated in the opinion.

<p>Certiorari to highway commissioner.</p> <p>The-, facts are stated in the opinion.</p>

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

<p>Certiorari to boards of school inspectors.</p> <p>Proceedings-quashed. The facts are stated in the opinion.</p>

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

(Grant, J.) Trespass to the person. Defendant Ingalls brings error. The facts are stated in the opinion. The assumption that Ingalls’ liability was coextensive with that of his co-defendant was erroneous: Demick v. Chapman, 11 Johns. 132; Higby v. Williams, 16 Id. 215; Guille v. Swan, 19 Id. 381; Welsh v. Cochran, 63 N. Y. 184; Moore v. Sanborne, 2 Mich. 529.

<p>Error to Delta. (Grant, J.)</p> <p>Debt. Defendants bring error.</p> <p>The facts are. stated in the opinion.</p>

Exceptions before judgment from recorder’s court of the city of Detroit. (Swift, J.) Information for robbery. Respondent was convicted. The facts are stated in the opinion.

<p>Replevin — Possession by defendant — Execution—Lien of officer.</p> <p>1. A constable levied an execution on a quantity of household goods in a boarding-house, leaving them in charge of a custodian, and indorsed the levy on his writ. The wife of the judgment debtor, claiming as owner, demanded the goods, and on refusal replevied the same. On the trial the questions of ownership and possession were litigated, and at its close the court directed a verdict for the defendants for the amount of the execution on the ground that the constable nor judgment creditor had no such possession as would make it necessary to bring replevin.</p> <p>Held, that the question of possession should have been left to-the jury under a proper charge as to what would be necessary to authorize the issuing of the writ, and constitute an unlawful detention of the property.</p> <p>2. Where, in replevin against an officer for goods seized on execution, no such possession is shown by the defendant as is necessary to sustain the writ, the officer can claim no lien by virtue of his levy.</p> <p>8. It is not always necessary that goods levied upon should be removed in order to constitute such possession as will be deemed a sufficient conversion to sustain replevin. Hatch v. Fowler, 28 Mich. 205; Quackenbush v. Henry, 42 Id. 75.</p> <p>4. In replevin from an officer who has seized the property under an execution, the extent and validity of his lien, as also the amount of his damages, are matters for the jirry, and the court cannot direct a verdict for a sum certain.</p>

<p>Fire insurance — Agreement for arbitration — Waiver—Bar.</p> <p>.1. An insurance policy provided for an arbitration, on the written request of either party, in case of differences concerning the amount of any loss sustained by the assured, the award not to decide the liability of the company. It further provided that no suit should be sustainable against the company for the recovery of any claim under the policy until such award was made, which policy was declared to be made and accepted in reference to such terms and conditions. A loss occurred, and, after some five months’ fruitless negotiations for its adjustment, the assured brought suit on the policy, no arbitration having been requested by either party.</p> <p>Held, that the provisions mpst he read together, and that arbitration became necessary only on the written request of one of the parties, which request was optional, and, not being made, the right to arbitration was waived by both parties, and the suit was properly brought.</p> <p>Held, further, that the agreement to arbitrate was a common-law one, revocable at the pleasure of either party, which revocation would not invalidate the policy; and that the commencement of suit by the assured amounted to such revocation.</p> <p>2. An agreement to arbitrate will not bar an action based upon the same grievance. Callanan v. Port Huron & N. W. Ry. Co., 61 Mich. 15.</p>

<p>Error to Iosco. (Tuttle, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion in Nurney v. Fireman’s Fund Insurance Company, 63 Mich. 633.</p>

<p>Master and servant — Liability for negligence — Evidence of gentleness of horse.</p> <p>1. In a suit for damages for injuries sustained by the alleged frightening of plaintiff’s horse while driving across a bridge by the act of defendant, plaintiff was asked if he ever met any other object on the bridge, with the horse, such as usually scare horses, and, further, what objects he had before met on the bridge while driving the horse.</p> <p>Held, that the evidence was admissible, as the answers, if responsive, would tend to show the character of the animal for gentleness, and the plaintiff's knowledge concerning it.</p> <p>2. On the undisputed facts in this case (see opinion, pp. 642, 643) the court should have directed a verdict for the defendant.</p> <p>3. The liability of the master does not reach wrongs caused by carelessness of servants in work not directed by the master, as business of a third party, or of the servant himself, or of the master which he did not expressly or impliedly direct him to perform.</p> <p>In other words, the responsibility of the master grows out of, is measured by, and begins and ends with, his control of the servant.</p>

(Newton, J.) Bill filed to enjoin interference with railway crossing. Defendants appeal. The facts are stated in the opinion.

(Bussell, J.) Trespass. Defendant brings error. Tbe facts are stated in tbe opinion. The public never accepted the two rods as a way: People v. Jones, 6 Mich. 176, 184; Tillman v. People, 12 Id. 401, 407; Baker v. Johnston, 21 Id. 319, 340, 344; Wayne Co. v. Miller, 31 Id. 447. A right to an incorporeal hereditament can only be conveyed by deed: Thompson v. Gregory, 4 Johns. 81; Russell v. Scott, 9 Cow. 279; Pitkin v. L. I. R. R. Co., 2 Barb. Ch. 221.

<p>Capias — Appearance bail — Suit on bond — Return of ca. sa.</p> <p>' Where a plaintiff, on failure of a defendant to put in special bail, proceeds to judgment without taking an assignment of the appearance bail bond,—</p> <p>Held, that the appearance bail continued liable in the same manner as special bail, and are entitled, in a suit on the bond, to the same defenses as special bail, and that, until the return of an execution against the body of the defendant “not found,” suit will not lie against the appearance bail. Wilcox v. Ismon, 34 Mich. 268 ; How. Stat. § 7332.</p>

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

(Grant, J.) Bill to declare -the validity of a swamp-land certificate issued under How. Stab. § 5397, and for other purposes. Complainants appeal. The facts are stated in the opinion. Quimby obtained a vested interest under the certificate: Cooley, Const. Lim. 353, 357, 359. It is a part of the “ law of the land ” that a man’s rights shall be heard and determined before they are divested: How.

<p>Principal and surety — Conditional signing of bond — Estoppel — Qualification of surety.</p> <p>Where a surety executed an attachment bond with the defendant, to whom he delivered it, on condition that a specified co-surety should sign with him, but the names of the sureties were not inserted in the bond, nor was there anything on its face to apprise the plaintiff, his attorney, or the sheriff of such condition, of which they were not informed by the defendant, who secured another co-surety than the one agreed upon,—</p> <p>Held, that the surety made the defendant his agent to see that the bond was properly executed, and was estopped by his act.1</p> <p>Held, further, that said surety could not defend in a suit on the bond on the ground that the co-surety obtained by the defendant was not a freeholder, the statute which requires that qualification being for the protection of the sheriff, and not the co-surety.</p> <p>1See Hessell v. Johnson, 63 Mich. 623.</p>

Mandamus to compel a probate judge to vacate an order made under How. Stat. § 3340, continuing a railway company in possession pending condemnation proceedings, etc. The facts are stated in the opinion.

<p>Batiks and banking — Protest of draft — Return of dishonored paper —Custom or usage.</p> <p>A Michigan merchant bought a Chicago draft of his home bankers, payable to his order, and indorsed and mailed same to a New York creditor to apply, if collected, on his account. The creditor sent the draft to Chicago, where it was presented and protested, and four days afterwards the draft and notices of protest reached the creditor, who mailed notice to the debtor, and telegraphed to know why the draft was dishonored, who answered by wire to return the draft and he would send a new one.</p> <p>Five days after its receipt the creditor returned the draft, which reached the debtor by due course of mail, but after the failure of the bankers. In his letter the creditor requested the debtor to give him credit for the draft, and remit a new one.</p> <p>Held, in a suit by the creditor on his account, with a special ■count upon the indorsement of the protested draft, that the draft had been properly dealt with by the creditor, and that the protest and notices were sent in due time ; that, while the creditor was a collecting agent, he was something more, holding the draft collaterally to his account, and if the debtor wished to get back his paper he had the right to do so by paying the debt, but not ■otherwise..</p> <p>Held, further, that evidence of a custom of New York wholesale houses of returning dishonored drafts to their debtors, if admissible, was for the jury; but—</p> <p>Held, further, that the law of negotiable paper has never been allowed to be changed by local customs even more general than the one contended for, unless possibly when the paper was purely local, and it is difficult to see how New York business usages could apply to such a draft as the one in suit.</p>

(Hooker, J.) Action of forcible entry. Complainant brings error. The facts are stated in the opinion. The evidence of a forcible entry was sufficient for the consideration of the jury: Davis v. Ingersoll, 2 Doug. 372; Harrington v. Scott, 1 Mich. 17; Seitz v. Miles, 16 Id. 456; Shaw v. Hoffman, 25 Id. 168, 169; Willard v. Warren, 17 Wend. 257.

(Grant, J.) Case. Plaintiff brings error. The facts are stated in the opinion. The signing of the release was procured through a misstatement that it was a receipt, when it was more, and amounted to a fraud upon plaintiff, who waived no rights by signing it: O’Donnell v. Segar, 25 Mich. 367; Mich. Cent. R. R. Co. v. Dunham, 30. Id. 128; Match v. Hunt, 38 Id. 1, 6, 7; Berry v. Whitney, 40 Id. 65; Lewis v. Gamage, 1 Pick. 347, 351.

<p>Highway tax — Manner of assessment.</p> <p>1. Where a supervisor, levied a money tax of half of one per cent, on the faith of the alleged action of the highway commissioner, the only evidence of which was a record, signed by the town clerk alone, showing a meeting of the supervisor, clerk, and commissioner, at which the commissioner made a motion that a tax of one-half day’s labor be assessed on each $100 valuation for highway purposes, which was carried, and no other business transacted,—</p> <p>Held, that such recorded action was not warranted by any statutory provision, and that, if it means anything, it means that a majority of the officers present adopted the resolution, and not that the commissioner did so by himself.</p> <p>Held, further, that the record is of no value, the law imposing no duty upon the clerk to record any such action.</p> <p>'2. A highway commissioner, in assessing highway taxes, does so by separate highway lists for the several districts, prepared by himself, as provided in How. Stat. §§ 1328-1332, which lists he delivers to the several overseers, and no such tax can be levied by or under the direction of the commissioner by parol.</p> <p>Held, further, that the only way in which the amendment of 1882 (Laws of 1882, Act 10) can be made sensible is to consider it as authorizing the supervisor to spread upon the town tax roll, in money, the taxes assessed by the commissioner in his lists, which assessment said act requires him to make, and is the only action anywhere mentioned on his behalf for that purpose.1</p> <p>8. It is unlawful to raise highway taxes for the remote future, where-the roads and the necessities therefor are both contingent.</p> <p>So held, where lands situate in what had been set apart as a road district, but containing no inhabitants nor overseer, nor actual or contemplated highways, were charged with highway taxes assumed to be assessed by the commissioner of highways-on a labor basis, distinguishing this case from Sawyer-Goodman Co. v. Crystal Falls, 56 Mich. 597 (head-note 2), and Peninsula Iron, etc., Co. v. Crystal Falls, 60 Id. 512 (head-note 9).</p> <p>4. It is the policy of our law to raise taxes no faster than they are-likely to be needed. It is not only important to avoid useless burdens, but the practice leads to carelessness in handling funds, and to complications when changes are to be made in districts and other territorial divisions. All reasonable presumptions may be made in favor of the necessities of a new region, but no presumption can stand when overthrown by facts.</p>

(Hooker, J.) Bill to vacate a discharge of a mortgage and for foreclosure of mortgage. Defendants appeal. The facts are stated in the opin.on, and in same case reported in 58 Mich.. 138.

(Gridley, J.) Bill to enforce tbe specific performance of a laud contract. Complainant appeals. The facts are stated in the opinion. The contract was clear and certain, deliberately made, and, no fraud being shown, the decree asked for should be granted us a matter of course: Rogers v. Odell, 36 Mich. 411; Murphy v. Stever, 47 Id. 522. Failure to include in the contract the agreement to pay the “boot” money is immaterial.

<p>Constitutional law — Title of act — Railroad companies — Serii e of process — Station agent defined — Certiorari.</p> <p>1. An act of the Legislature purported by its title to provide for the talcing of private property for public use, and for the opening, etc., of streets and'alleys, in a certain city.</p> <p>Held, that, taken as a whole, the title was meant to be confined to the talcing of lands for the designated city ways, which, although differing in some respects, have always been included together in framing city charters, and that the title did not embrace a double object.</p> <p>2. Under How. Stat. § 8147, as amended by Act 207, Laws of 1885, authorizing the service of papers on the station or ticket agent of a railroad company, a return of service on Wm. H. Knight, its commercial agent, does not show a sufficient service.</p> <p>8. A station agent means the agent locally in charge of the station or depot, and generally it is not at the end of the road, but at some intermediate place, although there may, no doubt, be such an agent at the terminus ; but the name cannot apply presumptively, if at all, to any but one who has general charge at the place where he acts, and there is nothing in the name “commercial agent’’which necessarily indicates local authority or functions.</p> <p>4. The jurisdiction of the Supreme Court by certiorari is constitutional, and not subject to revocation; but it is not usual to review by this writ what can be as well done on appeal.</p>

<p>Execution — Duty of officer — Assignment for benefit of creditors —Bond of assignee — Remedy of creditors if bond not filed.</p> <p>1. Plaintiffs delivered a writ of attachment to a sheriff for execution, who demanded and received a satisfactory bond of indemnity, and placed the writ in the hands of a deputy for service. Plaintiffs pointed out to the deputy the goods which they desired attached, the same being in the store of the attachment debtors, which was locked, and the officer was refused admission. He made no effort to levy the writ, and returned that he was unable to find any property whereon to levy. Plaintiffs paid his fees, and brought suit for damages. On the trial the sheriff offered in •evidence an assignment by the attachment debtors of all of their property, dated December 11, 1884, but made no proof of the execution of the bond required by the assignment statute. The writ of attachment was delivered to the sheriff December 19, 1884, returnable January 5, 1885, and was returned as aforesaid on January 13,1885.</p> <p>Held, that the assignee had until December SI, 1884, to file •said bond, and, failing to do so, no title passed under the assignment.</p> <p>Held, further, that it was the duty of the sheriff to have made a levy after the expiration of the statutory ten days for filing the bond, and that it was incumbent on him, when sued for failure to do so, to show, by satisfactory evidence, that the property on which he was directed to levy did not belong to the attachment debtors, or either of them.</p> <p>S. It is incumbent on an officer who séeks to excuse his failure to attach property by showing that the debtor had made a general assignment prior to the issuance of the writ, to produce the statutory bond which the assignee is required to execute and file, and, on failing to do so, the production of the. files in the assignment matter; showing the absence of such bond, while unnecessary, places the question beyond dispute.</p> <p>3. After the expiration of the ten days in which an assignee is required to file his bond under How. Stat. § 8739, a creditor may proceed upon the equity side of the court, for the enforcement of the trust through the intervention of a receiver, or, if no other creditor invokes the aid of the equity court, he may proceed to enforce Ms claim by attachment against the assigned property,, the same as if the attempted assignment had not been made.</p>

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

<p>Supersedeas bond — Service of writ of error on clerk.</p> <p>1. Where, on taking out a writ of error, a bond for stay of execution was executed, but never legally filed with the clerk of the circuit court where the judgment was rendered, and the writ of error never served on that officer, but dismissed for want of return, and a second writ issued,—</p> <p>Held, that the bond was inoperative, and suit could not be maintained thereon.</p> <p>2. Until a writ of error is served on the clerk of the court whose judgment is appealed from, there is nothing to stay execution nor for the statutory bond to operate on.</p> <p>S. How. Stat. § 8681, only provides for filing a supersedeas bond when the writ of error is filed with the clerk of the court in which the judgment was rendered; and while, possibly, the clerk might, on receiving the writ, file such a bond previously left with him for that purpose, he could not do so otherwise.</p>

<p>Discharge in bankruptcy — New promise — Pleading.</p> <p>1. A discharge in bankruptcy is conclusive of the non-liability of the debtor, and, while operative, a perfect defense to a suit on a debt barred thereby. Benedict v. Smith, 48 Mich. 593.</p> <p>2. None but an express promise to pay, made after the discharge of a bankrupt, can be relied upon, or, if reliance is placed on an acknowledgment, it must be so far unqualified as to necessarily authorize the implication of the promise to pay, and no other.</p> <p>3. While the effect of a discharge in bankruptcy is to suspend the right of action against the debtor, the debt remains, and the moral obligation to pay it forms a sufficient consideration for the promise to make such payment, which promise need not be in writing.</p> <p>4. In a suit in assumpsit upon a judgment rendered against a bankrupt prior to his discharge, the plaintiff need not count specially upon the after-promise to pay the debt, nor prove same as a part of his case on the trial, but may show such promise to rebut the defense of such discharge, if made by the defendant.</p>

<p>Infants — Disaffirmance of deed — Evidence.</p> <p>jt A land-owner conveyed a parcel of land during her minority, and‘ after arriving at full age deeded the same land to another person.</p> <p>Held, a disaffirmance of her first deed, and that the second' grantee could maintain ejectment for the premises.</p> <p>2. On the testimony in this case (see opinion, pp. 732-731),—</p> <p>Held, that the minority of defendants’ grantor at time she conveyed to them the premises in dispute is so fully established as-not to be open to question.</p>

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