Volume 65 — Michigan Reports

(Pealer, J., presiding). Certiorari to review a judgment for the defendant in proceedings under the bastardy statute. Reversed, and plea in .abatement and replication struck from files, and proceedings restored as they were before such plea was interposed. The facts' are stated in the opinion.

<p>Error to Lapeer. (Stickney, J.)</p> <p>Assumpsit. Defendants bring error.</p> <p>Tbe facts are stated in tbe opinion.</p>

<p>Mandamus to compel respondent to approve a liquor bond.</p> <p>The facts are stated in the opinion.</p>

<p>Error to superior court of Detroit. (Chipman, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are state! in the opinion.</p>

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

(Paddock, J.) Petition to quash proceedings for the appointment of a special commissioner under Act No. 94, Laws of 1885. Proceedings quashed. The facts are stated in the opinion.

<p>Landlord and tenant — Trespass—Forcible ejection from premise, Joint participation by husband and wife — Evidence of disposition of defendant — Measure of damages — Settlement of differences — Consideration—Bights of counsel employed.</p> <p>Defendant and his wife leased a farm to plaintiffs to work on shares, who entered into possession undei the lease. .Defendant became dissatisfied with plaintiffs’ manner of farming, and, pending litigation on the subject, the parties met for the purpose of settling their difficulties. They differ as to the outcome of this meeting, the defendant claiming that a settlement was effected by which the suits were to be discontinued, and the possession of the leased premises was at once to be delivered to him, except the houses, in which plaintiffs were to remain for a fixed time, and that defendant entered upon the farm the following day, and thereafter worked there as occasion required. The plaintiffs deny thfl-t any settlement was made, or that they ever surrendered possession of the land, or saw defendant working thereon until some time after the alleged settlement, when they ordered him to stop such work, soon after which they were forcibly dispossessed by defendant, and brought this suit to recover the consequent damages. They recovered a judgment for $400.</p> <p>1. Morse, J., filed an opinion, concurred in by Campbell, C. J., favoring-a reversal of the judgment on the following grounds:</p> <p>a — The court erred in instructing the jury that in determining whether a settlement was made, as claimed by the defendant, they could inquire into its consideration, the sufficiency of which was not in dispute, if the fact of the settlement was established, no fraud being claimed, or overreaching on the part of defendant.</p> <p>b — Where a party employs two counsel on the trial of a case,, an arrangement by which one examines the witnesses, while the other looks after the legality of the admission or rejection of testimony, is not only desirable, but a matter of right; and such counsel cannot be legally prevented from making objections to-such testimony, and taking exceptions to the rulings of the court-Circuit court rule 63, which provides that one counsel on each side shall examine and cross-examine witnesses, does not apply to such a state of facts. The argument of such objections may be limited to one counsel on a side, in the discretion of the court.</p> <p>c — What defendant’s -wife, who was part owner of the leased premises, did in his presence in ejecting plaintiffs, was admissible-in evidence, but what she did in his absence was not binding on him, unless she was shown to have acted under his counsel or direction.</p> <p>d — While evidence of the temper and disposition of defendant- and his wife, as known to the plaintiffs, was admissible to show the probable effect on their minds of the alleged threats of the defendant and his wife, it was not competent to show special acts-of violence on their part, disconnected from the violence involved in the issue, and it was error to permit plaintiffs’ counsel,. in his opening to the jury, to state that defendant had done personal violence to one of plaintiffs with a knife at one time.</p> <p>e — The charge as to exemplary damages was wrong, for reasons stated in the opinion.</p> <p>/ — It was error to permit plaintiffs to show the purchase of farming implements on the strength of the lease, the declaration authorizing no such claim for damages.</p> <p>2. Champlin, J., filed an opinion in which he concurred in reversing</p> <p>the judgment, and held that the court erred in admitting testimony showing the temper and disposition of defendant.</p> <p>3. Sherwood, J., filed an opinion, concurring in a reversal, and with</p> <p>Chahplin, J., and further holding that the case was not one for exemplary damages, for reasons stated in his opinion.</p>

(Smith, J.) Action by highway commissioner for failure to obey order for removal of alleged encroachment. Plaintiff brings error. The facts are stated in the opinion.

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

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

<p>Justices of the peace — Attachment—Sufficiency of affidavit — Jurisdiction.</p> <p>1. It is essential that it should appear upon the face of an affidavit for an attachment that it is made either by the plaintiff or by some person in his behalf.</p> <p>So held, where the affidavit was made by John Borland, Sr., averring an indebtedness to John Borland, Jr., in whose name the writ was issued, but contained no statement that affiant made it as agent or attorney for plaintiff, or in his behalf.1</p> <p>2. The writ of attachment in justice’s court is not an ordinary process by which suits are commenced, and before it can be issued the required statutory affidavit must be filed with the justice; and said affidavit being essential to confer jurisdiction, if it is-not filed, or if it is defective in matter of substance, and its-defects are not waived by a general appearance, the justice obtains no jurisdiction over the cause, and his acts are coram non judice (overruling Hills v. Moore, 40 Mich 210),</p>

Exceptions before judgment from Kent. (Montgomery* J.) Eespondent was convicted of doing business as a liquor dealer without payment of special tax, etc. The facts are stated in the opinion.

<p>Exceptions before judgment from Kent. (Montgomery, J.)</p> <p>Kespondents were convicted of adultery.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Ionia. (Smith, J.)</p> <p>Information for forgery. Respondent was convicted and sentenced.</p> <p>The facts are stated in the opinion.</p>

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

<p>Taxes — Protest—Voluntary payment.</p> <p>'The payment of a personal property tax assessed under Act No. 153, Laws of 1885, made under protest prior to January 1,1886, without any demand therefor, or threatened or actual levy under section 31 of said act, is a voluntary payment, and a suit for the recovery of the money so paid cannot be maintained.</p>

<p>Appeal from Mecosta. (Fuller, J.)</p> <p>Bill to enjoin an alleged encroachment on a public street.' Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Mutual benefit associations — Judgment—Beturn of execution unsatisfied — Mandamus—Sequestration—Equity.</p> <p>A beneficiary under a policy or certificate of insurance, issued by a mutual benefit association organized under chapter 118 of How. Stat., recovered a judgment against the corporation, and an execution issued thereon was returned unsatisfied. The judgment creditor thereupon applied for a mandamus requiring the proper officers of the corporation to make an assessment upon the members to pay the judgment.</p> <p>Held, that under How. Stat. § 8153, providing that in such a case the circuit court of the proper county may sequestrate the stock and property of the corporation, and appoint a receiver of the same, no further proceedings at law can be resorted to to enforce collection of the judgment, and that equity alone can furnish the proper remedy, as sequestration can be had in no other court.</p>

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

<p>Sale of lumber — Verbal contract.</p> <p>On a review of the testimony in this case,—</p> <p>Held, that if the minds of the parties did not meet on any material question, the verbal contract for the sale of lumber by plaintiffs to defendant could not be treated as complete, and, while all lumber received must be paid for, lumber not received need not be if not actually purchased.</p> <p>Held, further, that the case illustrates the importance of the statute of frauds in requiring parties to mate and sign written agreements, and, if they see fit to act outside of the statute, it is necessary that everything should be shown to have been completed with a mutual agreement on the whole matter.'</p>

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

<p>Error to superior court of Detroit. (Chipman, J.)</p> <p>Case. Defendants bring error.</p> <p>The facts are. stated in the opinion and head-note.</p>

<p>Mortgage — Record of assignment — References by register on margin.</p> <p>A mortgage was transferred by an assignment indorsed on the back of the mortgage, which was referred to in the assignment as “the within mortgage.” The assignment was properly acknowledged, and recorded in the same volume, but not on the same page, with the mortgage, and the register of deeds made cross-references in the margin of each record, calling attention to each instrument, and clearly connecting the two records.</p> <p>Held, in an action of ejectment involving the validity of a foreclosure of said mortgage by the assignee by advertisement, that, the assignment was legally recorded, and, with the cross-references, had the same effect as if the mortgage had been recorded with it.</p>

(Grant, J.) Bill filed for the appointment of a receiver for an insolvent •corporation, and for other relief. The facts are stated in the opinion.

(Arnold, J.) Oross-bill dismissed and decree below reversed and modified so as to conform to opinion. The facts are fully stated in the opinion.

<p>Petition for leave to file bill of review — Evidence—Laches.</p> <p>After final decree in this case in the Supreme Court, Marland R. Gardner and Eloise A. Dodge, two of the defendants in the original and cross-bills, filed a petition for leave to file a bill in the-nature of a bill of review in the circuit court for the county of Ottawa, in chancery, which was denied, the Court holding the petitioners guilty of inexcusable laches, and that the decree-sought to be modified must stand and be enforced.</p>

(Joslin, J.) Bill for divorce for fraud. Decree overruling general demurrer and remanding case for further proceedings. The facts are stated in the opinion.

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

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

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

<p>Negligence — Injury from, vicious animal — Pleading—Allegations of declaration — Contributory negligence — Evidence,</p> <p>1. In an action on the case for injuries inflicted by a bull owned by the defendant, the owner’s negligence is sufficiently set forth by alleging that he wrongfully and injuriously kept the animal, well knowing that it was used and accustomed to attack and gore, wound, and injure mankind, ana the place of keeping need not be stated ; nor is it usual or customary to negative negligence on. the part of the plaintiff.</p> <p>2. The negligence in such a case consists in keeping such an animal after notice of its dangerous habits; and whoever keeps an animal -accustomed to attack and injure mankind is prima facieliable in an action on the case at the suit of any person injured, without any averment of negligence or default in securing and taking care of the animal.</p> <p>3. If in such a case it is shown, as matter of defense, that 'the plaint - iff willfully provoked the animal, or was grossly negligent in going near it, with knowledge of its vicious habits, he cannot recover.</p> <p>i. In such a case proof that the animal was led by a chain attached’ to a ring in his nose, with a stick attached to keep him away from: the man in charge, if such facts were known to the defendant, is-competent as bearing upon defendant’s knowledge of the viciousness of the animal.</p>

<p>Promissory note payable to bearer — Action by one copartner — Disclaimer of interest — Memorandum of party as evidence.</p> <p>1. A member of a firm brought suit on a note payable to bearer, and indorsed by the payee in blank. On the trial his copartner testified that the note was bought with copartnership goods, which were not charged to the individual account of the plaintiff, but that the witness did not claim any interest in the note at any time.</p> <p>Held, that the court erred in instructing the jury that, if they found the note was owned by the copartnership, plaintiff could not recover.</p> <p>2. On the trial of a suit against an indorser of a promissory note, the parties differed as to the date of notice of dishonor. The defendant was allowed to testify that on receiving the notice he made a memorandum upon the envelope in which it was inclosed of the date of its receipt as postmarked on such envelope, which memorandum was received in evidence, against plaintiff’s objection. The witness had a clear recollection of the date, and did not desire the memorandum to refresh his recollection, nor was it used or offered for that purpose.</p> <p>Held, that the memorandum should not have been received in evidence, being no more admissible to corroborate defendant than his oral statements to the same effect, made to a third party on the day of its date, would have been.</p>

<p>Error to Wayne. (Full bench.)</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

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

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

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

<p>Equity — Divorce—Decree by consent — Alimony.</p> <p>A decree for divorce and alimony entered by the consent of defendant by his solicitor, after issue joined and proofs taken in open court, is binding upon the parties, unless impeached for fraud or mistake.</p>

<p>Bills and notes — Action against all parties liable thereon — Judgment —Indorsement of guaranty.</p> <p>1. Under How. Stat. §§ 7345, 7346, a suit may be brought against all parties to promissorynotes, including guarantors oí payment, on a common-count declaration, with service of a copy of the note and its indorsements; and a.judgment against any of the parties against whom plaintiff could have proceeded separately is authorized by How. Stat. § 7355. It is impossible, therefore, for any party, unless a joint contractor, to complain of failure to take judgment against any other party joined with him in the suit.</p> <p>2. An indorsement of guaranty in blank is a complete act, and, if made by a payee or other party holding title, passes the title with the obligation.</p>

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

<p>Error to Hillsdale. (Joslin, J., presiding.)</p> <p>Assumpsit. Plaintiffs bring error.</p> <p>The facts .are stated in the opinion.</p>

(Stickney, J.) Bill to enjoin the obstruction of an alleged highway. Complainants Hugh Irving and Orrin Poppleton appeal from decree dismissing bill. The facts are stated in the opinion.

<p>Case. Defendant brings error.</p> <p>The facts are-. Btated in the opinion.</p>

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

(Montgomery, J.) Bill by surety on administrator’s bond to subject real estate purchased with trust fund to payment of claims paid by surety. Defendant appeals. The facts are stated in the opinion.

(Chipman, J.) Bill filed to set aside deed on ground of fraud in its procurement when complainant was intoxicated Complainant appeals from decree dismissing bill. The facts are stated in the opinion.

<p>Contract for sale of land — Rescission by vendor — Action to recover money paid — Statute of frauds.</p> <p>1, Defendant contracted with plaintiff for the sale of 40 acres of land, the purchase price to be paid in installments, two of which were-paid according to the contract. Just prior to the second payment the defendant deeded the land to a third party, and a few days after the third payment matured plaintiff brought suit to recover the money paid and interest, never having had possession of the land.</p> <p>Held, that, when the defendant deeded away the property-under the circumstances stated, the plaintiff had a right to treat the contract as rescinded, and had no occasion to act in the-premises before the next payment became due. Atkinson v. Scott, 36 Mich. 18.</p> <p>2. In such a case an attempted renewal of the contract by a verbal.</p> <p>agreement to secure a reconveyance of the land to defendant, when he should deed to plaintiff, was of no validity, being within the statute of frauds.</p>

<p>Negligence — Submission to jury — Appeal.</p> <p>Where the only real question open, to consideration is whether there was evidence of negligence to go to the jury, the appellate court cannot weigh testimony or criticise witnesses, and if unable to see that it was not a case for the jury, and that they could not (legally) reach the conclusion they did, it cannot review the action of the circuit judge in refusing to grant a new trial, thus substituting its discretion for his; and there is no more power to-review the damages than the other elements of decision.</p>

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

<p>Life insurance — Forfeiture—Misrepresentation in application— “Medical attendance” defined — Evidence—“Sound health” defined.</p> <p>1. Where in a suit on a life insurance policy the company claimed that certain answers of the assured to questions in her application were untrue, and the testimony of the plaintiff tended to prove that the agent who wrote the insurance called at the plaintiff’s house, and asked a few questions of the assured, and filled in the answers given after the assured had signed such application, and after the agent’s return to his office,—</p> <p>held, that the court erred in instructing the jury that, if they found this claim to be true, the defendant company could not defend on the ground of the falsity of such answers ; that it was a question for the jury whether the assured made the answers as written down by the■ agent, and, if she did, their truth or falsity should have been inquired into ; and the insertion of such answers after she had signed the application would not affect the rights of the beneficiary or the company.</p> <p>2. An applicant for life insurance was required to name the physician who last attended her, and the time of such attendance.</p> <p>Meld, that a mere calling into á doctor’s office for medicine to relieve a temporary indisposition, not serious in its nature, or his calling on the applicant at home for the same purpose, could not be considered “an attendance” within the meaning of this question, but that such attendance must have been for some disease or ailment of importance, and not for an indisposition of a day or so, trivial in its nature, and such as all persons are liable to, who are yet considered to be in sound health generally.</p> <p>3. Where an applicant for life insurance stated that her last sickness was nihe or ten years ago, and the disease typhoid fever, and named the attending physician, and about a year afterwards, on applying for a second policy in the same company, stated that she had never been sick nor had an attending physician, which last answers were false,—</p> <p>Held, in a suit on the policies, that the court should have instructed the jury that the second policy was void, and that the insurance company was not bound to take notice of the answers in the first application, nor estopped from showing the falsity of the later ones.</p> <p>4. “Sound health,” as used with reference to an application for life insurance, means a state of health free from any disease or ailment that affects the general soundness and healthfulness of the system seriously, and not a mere indisposition which does not tend to weaken or undermine the constitution of the assured. The word “serious” is not generally used to signify a dangerous condition, but rather to define a grave, important, or weighty trouble.</p> <p>5. In a suit on a life insurance policy the tenor of the evidence on the part of the defendant was to the effect that the assured was afflicted with.Bright’s or some other incurable disease of the kidneys.</p> <p>Held, that if this were so she had not only a serious, but a dangerous, disease.</p> <p>6. In such a case a physician was asked to give a conversation had by him with the mother of the assured (the beneficiary ip. the policy) as to her daughter’s health, he having already testified to a want of knowledge on the subject, not having examined the girl or conversed with her.</p> <p>Held, that the testimony was incompetent as independent evidence of the girl’s health.</p> <p>7. On a trial of a suit on a life insurance policy the photograph of the deceased was offered to show her “ healthy appearance.”</p> <p>Held, that the testimony was incompetent.</p> <p>8. An applicant for life insurance stated in her application that a physician had treated her some years before for typhoid fever. On the trial of a suit on the policy the physician was sworn as a witness for the company, and asked if such statement was true.</p> <p>Held, that the fact as to treatment or non-treatment for the disease named was not a matter of privilege, and that the court erred in rejecting the proposed testimony. How. Stat. § 7516.</p> <p>9. Where in a suit on a life insurance policy certain answers of the assured were claimed to be false, and the plaintiff claimed that such answers were filled in after the application was signed and the agent taking same had gone to his office,—</p> <p>Held, that evidence tending to show that such answers were incorrectly written in the application was competent.</p> <p>10. In suck a case the testimony of a physician as to what the-assured said to him regarding her having a certain disease, and his conclusion from his conversation with her on the subject that she was not so afflicted, and his statement to that effect in his-written report to the company of such examination, were admissible as proof tending to show her freedom from such disease.</p>

(Jennison, J.) Bill to wind up the affairs of a corporation and distribute its assets. Defendants appeal. The facts are stated in the opinion.

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

<p>Justices of the peace — Message sent to jury by justice— Verdict— Certiorari.</p> <p>1. Where, after a jury has been sent out, the officer in charge-informed the justice that they desired to know if a certain judgment introduced in evidence should be considered by them, to which inquiry the justice answered, through the officer, that he had been ordered to discharge the judgment,—</p> <p>Held, error to send such message.</p> <p>2. Where a jury returned into court and announced their verdict, which, not being satisfactory to either party, was by consent set aside, and, by request of the parties, the justice remained with, the jury while further considering the case and agreeing on a. verdict,—</p> <p>Held, that the parties, by such action, constituted a tribunal of their own to determine what verdict should be rendered, and that on its rendition the justice had jurisdiction to render judgment thereon, and that certiorari will not lie -to correct the same,. if erroneous.</p>

<p>Trespass — Property in ice — Riparian ownership — Right of flowage.</p> <p>1. Plaintiff was the owner of a parcel of land, subject to a right of flowage to a sufficient extent to raise a specified head of water for milling purposes by damming a small stream running through said land, and had been accustomed to harvest the ice forming over said flowed land, and dispose of the same for her •own benefit. Defendants leased the right to cut and remove such ice from the owners of such right of flowage, and íd the winter of 1884 and 1885 cut and removed a portion of the ice, for which alleged trespass plaintiff brought suit. The cutting and gathering of the ice in no manner tended to injure the water-power rights of defendants’ lessors.</p> <p>Held, that the ice belonged to plaintiff, who could recover damages for its removal.</p> <p>2. The owner of land covered by water is ordinarily the sole owner of ice formed upon such water ; and this ownership is not confined to ponds entirely on his land, but his riparian ownership of the bed of a stream will carry with it the right to the ice forming upon the surface of such stream, as far as such riparian right extends.1</p> <p>'3. A grant of “ a right of flowage to raise the water in the flume at the mill 10 feet head ” does not vest in the grantee any right in the land flowed, or in the water itself, but a mere right to raise the water to a certain head at the flume, and thereby overflow the land.</p> <p>4. In the case of Higgins v. Kusterer, 41 Mich. 318, it was decided that, where the owner of the freehold upon wnich the ice had gathered chose to sell it by itself, it ought, for good reasons, some of which are stated in the opinion, to be classed as personalty. The ownership of the ice was held to be in the “ possessor of the water,” but such possession was derived solely from his ownership of the soil under the water, and said term, as used, means the owner of the water.</p>

<p>Partnership — Sale of interest to copartner — Retention of title until full payment — Assignment for benefit of creditors.</p> <p>.1. One of two copartners agreed with, the other (a corporation) to purchase its interest in the joint property and business at a fixed price, payable in installments, the vendor to retain its title and ownership of the partnership assets, as its interests might from time to time appear, until full payment of the purchase price, and the vendee to have the sole management of the business. No mention was made of after-acquired stock or property in the agreement. The vendor assigned the contract, and soon after the vendee made a general assignment for the benefit of his creditors, and the assignee took possession of the assigned property and converted it into money by virtue of such assignment. After the purchase, and up to date of assignment, the vendee had exclusive control of the business, buying new goods and incurring new debts to quite an amount. The assignee of the ■contract demanded the property of the vendee’s assignee, and, upon his refusal to deliver same, brought assumpsit for its value, waiving the tort. At this time the vendee was indebted on the contract for a large portion of the original purchase price.</p> <p>Held, that the plaintiff was entitled to a judgment for the amount of goods on hand at time of assignment, and the fixtures, that were a part of the stock at date of the contract of sale, and to that portion of the assignee’s collections arising from the proceeds of the sale of goods forming a portion of the stock in hand at date of said contract.</p> <p>Held, further, that filing such contract in the proper office could not enlarge the scope of the agreement regarding the title, nor could it be considered as creating a lien or mortgage upon goods bought after the date of the contract of sale.</p> <p>:2. How. Stat. § 8749, giving the equity court supervisory power over all matters, questions, and disputes arising under an assignment by a debtor of his property for the benefit of his creditors, does not vest exclusive jurisdiction in that court to try and determine the claims of third persons to the assigned property in the hands of the assignee; but such court may dispose of such claims, where the parties are willing and voluntarily subject themselves to its jurisdiction. But the right to bring an action against the .assignee for property wrongfully taken or converted must exist and remain in the law court, where a jury can be impaneled, if desired, to determine the merits of the controversy.</p> <p>3. The rule of law that permits a vendor to retain the title to goods' bargained by him, and placed apparently in the exclusive possession, control, and ownership of the vendee, until the whole purchase price is paid, without notice to parties dealing with such vendee, is, at best, a harsh one, and should not be enforced except in cases where the agreement to so hold the title is positive and unambiguous.</p>

<p>Equity — Plea in bar — Bes judicata.</p> <p>1. Complainant filed a bill for a partnership accounting, to which defendant interposed a plea of a former suit and ad j udication for the same subject-matter between the same parties, and attached copies of the pleadings in the former case showing such identity. The truth of the plea was not put in issue, but an argument was had on the pleadings. The decree in the former case purported to be made upon a hearing upon pleadings and proofs to be taken in open court, and dismissed the complainant’s bill upon his consent, as therein stated, and without any saving clause or words qualifying its effect.</p> <p>Held, that the decree appears to have been made upon the merits, and is a bar to further proceedings in the second suit.</p> <p>2. The effect of a voluntary dismissal of a complainant’s bill is the same as an adverse one, if made upon the hearing, when the merits are involved.</p>

<p>Bequests to charge — Province of jury — Sufficiency of instructions.</p> <p>1. Where questions of fact arefairly submitted to a jury, the verdict must stand in the absence of erroneous rulings in admitting or rejecting testimony, or errors in the charge of the court.</p> <p>2. Where the court charges the jury on his own motion, and without reference to the requests presented by counsel, isolated sentences cannot be considered apart from their context, nor is it expected that each clause and sentence shall be correct to an absolute certainty; but the charge is to be taken as a whole, without any undue weight being given to any portion of it. Lake Superior Iron Co. v. Erickson, 39 Mich. 499; Burdick v. Michael, 32 Id. 247; Anderson v. Walter, 34 Id. 119; Greenlee v. Lowing, 35 Id. 66 ; Eggleston v. Boardman, 37 Id. 21.</p> <p>3. The multiplicity of points and requests in a cause, when the issues are not complicated, is of injurious tendency, and is calculated to confuse both courts and juries in the administration of justice; and, if the court instructs the jury upon all the essential features of the case, that is sufficient. Kimball & Austin Manf’g Co. v. Vroman, 35 Mich. 332; Eraser v. Jennison, 42 Id. 236.1</p>

(Gridley, J.) Claimants filed claim for moneys received by guardian on sale of real estate, against the estate of the surety on guardian’s bond. The facts are stated in the opinion.

<p>Error to Ingham. (G-ridley, J.)</p> <p>Case. Defendants Ira C. and Warren L. Bristol bring ■error.</p> <p>The facts are stated in the opinion.</p>

<p>Quitclaim deed — After-acquired title — Land patent — Taxes—Assessment roll — Municipal corporations — Authority of council to direct taxation — Construction of charter.</p> <p>1, “A quitclaim deed can never inure to convey any subsequently acquired title which was not actually owned in equity at the time of the deed.” Frost v. Missionary Society, 56 Mich. 69,</p> <p>So held, in a case where a plaintiff in ejectment sought to trace his title through a patent issued to three patentees as assignees of the original certificate of purchase, and a quitclaim deed from one of the patentees, executed after the issuance of the certificate and prior to the date of the patent, the date of the assignment of the certificate not being shown; it being held that such deed was immaterial, in the absence of proof that it was executed after such assignment.</p> <p>2. A supervisor certified that he had estimated the real estate listed on his roll at what he believed to be its “ true value.”</p> <p>Held, that the certificate was defective in omitting the word “cash” between the words “true” and “value.” Diekison v. Reynolds, 48 Mich. 159.</p> <p>3. A city charter required the common council to determine by resolution the amount necessary to be raised by tax for city purposes, to be denominated the “ contingent fund,” and also the amount necessary to be raised for the payment of the city debt, and interest thereon, to be denominated the “ interest fund." The council adopted a resolution directing that a gross sum be raised by taxation “ as a contingent fund to defray the current expenses of the city, as well as to pay the interest of her water bonds for one year.”</p> <p>Held, that the resolution containing the statutory designation lies at the foundation of the authority for the common council to impose the tax, which provision is for the protection of the individual against excessive levies, as well as to enable creditors and citizens to see that the payment of the public debt and the interest thereon is provided for; and that the failure of the council to observe the requirement of the charter rendered a tax deed issued on a sale of land for such taxes void. Hoyt v. East Saginaw, 19 Mich. 44.</p> <p>4. A city charter required the common council to apportion the amount voted to be raised for city taxes among the several wards, according to their respective valuation as equalized by the board of supervisors of the county, and the recorder was required to notify each supervisor of the amount apportioned to his ward, who was required to levy the same. The council, by resolution, instructed the several supervisors, with the assistance of the recorder, to make such apportionment.</p> <p>Held, that the action of the council in making such apportionment was a step required by the statute for the regular and orderly progress of the work of assessing the tax, aud was purely ministerial; that the data for such apportionment being absolutely fixed by the board of supervisors when they equalized the rolls, the act of apportionment required of the council is simply a mathematical calculation, which may as well be done by a clerk or other party designated as by the council, and, if so done, can be no more objectionable than the extension of the tax by a clerk of the supervisor.</p> <p>Held, further, that the apportionment by the council, and certification by the recorder, is merely a method by which the amount to be levied is brought to the knowledge of the supervisor, and were not intended for the protection of the citizen, or to prevent a sacrifice of his property. If the correct amount is assessed, no one will he injuriously affected, and, in order to invalidate the tax for non-compliance with a directory requirement,'it must be shown that injury has resulted to the person assessed in, consequence thereof.</p> <p>5. A city charter made it the duty of the common council to determine the amount necessary to be raised in each ward for highway purposes, and the council, by resolution, directed that the highway tax to be raised on the total assessment of the real and personal property in a specified ward should be one-fourth of one per cent.</p> <p>Held, that the council was required to determine the amount necessary to be raised, and not -that it was necessary to raise a certain sum, for highway purposes; and that the action of the council sufficiently determined such amount by designating it as a fixed percentage on the taxable property in the ward.</p> <p>6. Where a city charter required the council to determine the amount necessary to be raised for city purposes, to be denominated the “contingent fund," and the amount necessary to be raised for the payment of the city debt and the interest thereon, to be denominated the “ interest fund,” and the council resolved that a certain sum be raised for the purpose of defraying the expenses of the city for one year,—</p> <p>Held, that the whole sum raised must b.e held, on the face of the record, to be for the “ contingent fund,” and that the failure to raise any money for the “ interest fund " would not invalidate the tax raised.</p> <p>Held, further, that should it be made to appear that a part of the sum named was in fact raised for the payment of the city debt and interest thereon, the levy would be illegal for reasons stated in head-note 3.</p> <p>7. Statutes fixing a time for the doing of an act are directory, where the time is not fixed for the purpose of giving a party a hearing, or for some other purpose important to him.</p> <p>So held, where a city charter required the common council to determine the amount necessary to be raised for highway tax on or before the first day of June in each year, the matter being left in the discretion of the council, and no hearing being contemplated with reference to the amount to be raised; and that the council did not lose jurisdiction by not acting within the prescribed time.</p> <p>8. A city charter made it the duty of the common council to determine by resolution the amount necessary to be raised by tax for city purposes other than highway purposes, which were otherwise provided for.</p> <p>Held, that a resolution “that the amount to be levied by taxation for the present year be $80,000” was a sufficient compliance with the charter as to,the determination of the.amount to be raised.</p> <p>9. Where an assessment roll was objected to for want of a statutory certificate, and it was claimed that the appearance of the roll showed that there had been one or more leaves detached,—</p> <p>Held, that a question of fact was presented as to whether the roll was in the plight it was when returned to the county treasurer, and whether when delivered to the supervisor it was properly certified.</p>

(Russell, J.) Replevin. Defendant brings error. The facts are stated in the opinion, and in the former report of same case, found in 60 Mich. 339.

<p>Sale of corporate stock — Fraud—Evidence—Submission to jury.</p> <p>In this case the Court held that no question of law is involved, and that there was testimony sufficient to warrant the submission of the case to the jury.</p>

Mandamus to set aside rejection by Auditor General of taxes assessed on railroad lands. The facts are stated in the opinion.

<p>Justices of the peace — Jurisdiction — Double damages — Special appeal.</p> <p>1. Plaintiff sued defendant in justice’s court for negligently setting a fire which spread to plaintiff’s premises, damaging him $100, and claimed in his declaration double damages under How. Stat. § 9402. The jury found in his favor, and assessed his actual damages at $100, which sum on his motion was doubled by the justice, against defendant’s objection that the jurisdiction of the cdurt was limited by statute to $100, and that that was the sum claimed in the ad damnum, clause of the declaration.</p> <p>Held, that the ad damnum clause, which claimed $100 damages, with the light to double same, was sufficient; and that the $100 added by the justice was in the nature of a penalty, and might be added to the actual damages in the same manner as costs, by consent or on motion of plaintiff.</p> <p>2. A question affecting the jurisdiction of a justice of the peace to render a judgment may as well be raised by special appeal as in any other manner.</p>

(Green, J.) Bill to set aside a mortgage. Defendant appeals from decree granting relief prayed for. The facts are fully stated in the opinions.

(Gage, J.) Bill filed to restrain defendants from interfering with complainants’ alleged riparian rights in a bayou adjoining their land. Defendants appeal. The facts are stated in the opinion.

Moslin, J.) Bill to compel defendants to lower a mill-dam, and to enjoin them from increasing its height, etc. Complainants, appeal from a decree awarding them compensation for the damage caused by the increased flowage of their lands. Amount of compensation increased, and decree entered accordingly. The facts are stated in the opinion.

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

(Smith, J.) Bill to set aside a deed of certain real estate for fraud. Complainant and defendants Scott both appeal from decree in favor of complainant. The facts are stated in the opinion.

<p>Municipal corporations — Construction of cross-walks — Discretion of authorities — Injury to infant.</p> <p>1. Village authorities have a perfect right, in the use of their discretion, which courts cannot review, to determine how their crosswalks shall be laid, and how access shall be obtained between, the foot-walk and the wagon-way. The practice is general, if not universal, of having a sharp fall at the curb along the line of the sidewalk space which defines the division between sidewalls and street, and we know of no authority which prevents such a step from being made and maintained. Williams v. City of Grand Rapids, 59 Mich. 51.</p> <p>2. In making walks and connections, the authorities, who are always supposed to use common judgment and fidelity, may generally be relied on to do what seems reasonably safe and cautious for people of all ages. But they may also fáirly assume that parents will use such caution in taking young children along the highways as will guard them against such dangers as are not improbable.</p>

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

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

(Jennison, J.) Claim filed against estate of deceased person. Allowed in probate and circuit courts, and judgment reversed on error brought by heir, who appealed to circuit court on refusal of administrator. The facts are stated in the opinion.

(Hooker, J.) Claim filed against estate of deceased person. Disallowed in probate and circuit courts, and claimants bring error. The facts are stated in the opinion.

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

<p>Attachment — Implied assumpsit — Embezzlement—Affidavit of publication — Judgment.</p> <p>1. An affiant in an affidavit of publication of an attachment notioe described himself as printer, etc., but did not directly aver such fact.</p> <p>Held, that the recital was equivalent to such an allegation.</p> <p>2. A suit in attachment lies upon the implied assumpsit arising out of the embezzlement by a clerk of the money of his employer, such a case falling within the language of the attachment act.</p> <p>3. Where a judgment taken on default recites a finding by the court of the amount due, on proofs taken in open court, a report of the clerk of such amount is surplusage.</p>

Mandamus to compel respondent to levy tax to pay orders drawn by drain commissioner. The facts are stated in the opinion.

<p>Error to Macomb. (Stevens, J.)</p> <p>Trespass. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Accident insurance — Death by design — Construction of policy — Stipulation as to proof required.</p> <p>1. Plaintiff sued defendant, as beneficiary, on an accident insurance policy issued to ber son, which provided—</p> <p>a — “That no claim shall be made under the policy when the death or injury may have happened in consequence of voluntary exposure to unnecessary danger, or while the insured was, or in consequence of his having been, under the influence of intoxicating drinks, or while engaged in or in consequence of any unlawful act.”</p> <p>b — “ That this insurance Shall not be held to extend to disappearances, nor to any case of death or personal injury, unless the claimant under this policy shall establish, by direct and positiveproof, that said death or personal injury was cau-ed by external violence and accidental means, and was not the result of design, either on the part of the insured or of any other person.”</p> <p>At the time the policy was written the insured was a minor, and a deserter from the United States army, and was shot and killed by a deputy-sheriff in a house of ill fame, where the officer went to arrest him, without a warrant, assuming to act under the instructions of the under-sheriff, who had seen a telegram from the captain of the company to which the insured belonged, describing him and stating that he was a deserter. The defendant sought to avoid a recovery on the grounds—</p> <p>a — That the insured was killed while seeking to avoid capture as such deserter.</p> <p>b — That he was intoxicated at time he received the injury causing death.</p> <p>c — That his death happened in consequence of his voluntary exposure to unnecessary danger, and of his unlawful act, inlhac he was such deserter, and was shot and killed by an officer while seeking to avoid capture, etc.</p> <p>d — That he was shot and killed while engaged in an unlawful act, and in consequence thereof, in that he pointed a pistol at the officer in a threatening manner, and was shot and killed by such officer in self-defense.</p> <p>The testimony was conflicting as to the circumstances of the killing, that of the defendant tending to show that the officer knew the insured, and demanded his surrender as a deserter, and shot him in self-defense, while that of the plaintiff tended to show that the shooting was reckless, and that the officer did not know the deceased, nor that he had shot him until after the killing. The circuit judge directed a verdict for the defendant, holding that the firing of the pistol was not accidental, but designed by the officer, and that the policy was not intended to insure against murder or willful killing of any kind, but against ordinary accidental means alone.</p> <p>Held, that the case should have been submitted to the jury; that the design mentioned in the policy must be considered a design on the part of the officer to MU the insured, and if sueh design did not exist when he fired the shot, or if he did not know that the man he was shooting at was the insured, there is nothing in the record to prevent a recovery by the plaintiff.</p> <p>3. A clause in an accident insurance policy requiring direet and positive proof that the death or injury insured against was caused by external violence and accidental means, and was not the result of design, either on the part of the insured or any other person, cannot be allowed to govern the courts, which will not permit the course of justice, upon trials before them, to be stipulated or contracted in such manner as to defeat the ends to be subserved by such trials. Parties may contract in relation to a condition precedent before bringing suit, or in relation to anything going to the remedy, but not to the right of recovery itself.</p> <p>8. When a stipulation or exception to a policy of insurance, emanating from the insurers, is capable of two meanings, the one is to be adopted most favorable to the insured. May, Ins. §§ 174,175 ; Wood, Ins. (3d ed.) §§ 60, 63 ; Allen v. St. Louis Insurance Go., 85 N. Y, 473.</p>

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

<p>Replevin — Insufficiency of sureties on bond to officer — Judgment of return — Liability of sheriff or coroner on official bond.</p> <p>1. A coroner replevied certain property from a deputy-sheriff, taking</p> <p>a bond with irresponsible sureties, who were not freeholders, and delivered the property to the plaintiff. The defendant excepted to the sureties, who failed to justify, and the plaintiff failed to execute a new bond with sureties who could justify, and a judgment of discontinuance and for a return of the property was rendered in favor of the defendant, upon which the usual execution was issued, and returned unsatisfied, the property having been removed from the State by the plaintiff in replevin.</p> <p>Held, that on the rendition of the judgment it was the duty of the plaintiff in replevin to return the property to the defendant, and, failing so to do, that of the coroner to see that it was so returned; and on his failure to make such return within a reasonable time he became liable on his official bond for such default, and an action on said bond could be at once maintained by the defendant against both the coroner and his sureties.</p> <p>2. The sheriff, on seizing property in a replevin suit, is not author-</p> <p>ized or directed by the statute to deliver the property to the plaintiff until he furnishes such officer with a bond with sureties of undoubted sufficiency, and his approval of such sureties, after they have been excepted to, is of little consequence. He accepts them at his peril, under such circumstances, unless directed to do so by the court or the defendant.</p>

<p>Practice in circuit courts — Conduct of counsel on argument — Sale— Fraud — Requests to charge.</p> <p>1. Counsel, in their argument to the jury, must be permitted to state such inferences of faot as they in good faith draw from all the circumstances of the case, and what would very likely follow should such inferences prove correct,</p> <p>2. The appellate court will not review exceptions taken for the first time in that court to statements made by counsel in their arguments to the jury.</p> <p>3. On a review of the testimony, the Court held that the finding of the jury as to the person to whom plaintiff gave credit for the goods sold could not be disturbed, no errors of law having intervened.</p> <p>4. Where in a suit to recover for goods sold and delivered the main point in dispute was as to the person to whom the credit was given, there being no allegation of fraud in the pleadings, nor was the question involved in the testimony any further than included in the failure to pay plaintiff’s claim,—</p> <p>Held, that special questions involving fraud and deception on the part of plaintiff in rendering its account were properly refused.</p> <p>5. Requests asking the court to give its view as to the weight which should be given to certain portions of the testimony in a case, held properly refused.</p>

<p>Error to Newaygo. (Fuller, J.)</p> <p>Trover. Defendants bring error.</p> <p>Tbe facts are stated in tbe opinion.</p>

<p>Railroad companies — Penalty for failure to carry passenger — Signaling train at way-station.</p> <p>Where a railway company sold a passenger a ticket from a regular station to & flag-station, and return, on which the passenger was carried to the flag-station, and on the return of the train no stop was made at the flag-station, where the passenger was waiting for the return trip, and claimed to have given the customary signal,—</p> <p>Held, that the company was liable to the penalty imposed by How. Stat. § 3324, if the train-men saw the signal,-and willfully ran by the station.</p>

<p>Appeal from Wayne. (Howell, J. presiding.)</p> <p>Bill to enforce trust under assignment. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

(Joslin, J.) Claim filed against estate of deceased person. Allowed in probate and circuit courts, and judgment affirmed on error brought by the administrator. The facts are stated in the opinion.

<p>Mortgagee in possession — Bights and liability of — Parol contract regarding real estate — Equity.</p> <p>1. A mortgagee cannot demand or enforce possession of the mortgaged premises, but, if the mortgagor or owner of tne fee chooses to put him in, the tenancy is at least good as a tenancy at will, and cannot be destroyed without notice.</p> <p>2. A parol contract under which both parties have gone into definite possession of distinct parcels of land is good in equity, and the parties will be protected in it.</p> <p>3. A mortgagee in possession, in the absence of express agreement as to the conditions of the tenancy, is liable for the annual rental of the land.</p>

<p>Appeal from Berrien. (Smith, J.)</p> <p>Bill to foreclose two mortgages. Both parties appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Kalamazoo. (Mills, J.)</p> <p>Bill filed by creditors of assignor to set aside mortgages, etc. Complainants appeal from decree dismissing bill.</p> <p>mortgages being held valid.</p>

(Joslin, J.) Bill for an accounting, and to declare land previously-deeded and mortgage assigned to be assets, to be disposed of for the payment of debts, etc. Defendants appeal. The facts are stated in the opinion.

(Speed, J.) Bill for divorce on the ground of cruelty. Defendant-appeals from decree for separation for two years. The facts are stated in. the opinion.

<p>Error to Marquette. (Grant, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>Tbe facts are stated in the opinion.</p>

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

Certiorari from Supreme Court to justice of the peace to review judgment in log-lien suit. Judgment set aside. The facts are stated in the opinion.

<p> Highway by user. </p> <p>A highway by user includes only so much land as is used for that purpose, and it cannot be extended upon adjacent lands, against the consent of the owner, except under proper condemnation proceedings instituted for that purpose.1</p>

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

<p>Fraudulent conveyances — Evidence.</p> <p>"Where, in a suit to reach securities alleged to have been transferred in fraud of creditors, the testimony of both defendants show that it was made for a valuable consideration, and this is not contradicted, fraud will not be inferred from suspicious circumstances surrounding the transaction.</p>

<p>Negligence — Master and servant — Evidence—Injury to infant.</p> <p>1. On the trial of a suit to recover damages for injuries sustained by a boy while operating a machine in defendants’ factory, plaintiff was permitted to testify that such emplyment “made him dizzy,” and to prove by another boy, who took the machine after plaintiff’s injury, that the same effect was produced on him. The declaration did not set forth any such complaint, nor suggest it as the producing cause of the accident.</p> <p>Held, that the court erred in the admission of the testimony.</p> <p>2. If in such a case it appears that the machine was a perilous one, and that, in view of such fact, the boy was too young to understand its dangerous character, or appreciate the danger to him in operating it, defendants would not be shielded from liability by proof that proper instructions were given to the plaintiff so that he understood the use of the machine; but if, on the contrary, the boy was of that age and maturity of judgment that he fully understood and realized the danger to which he was exposed, of which he was fully informed, and instructed in the use of the machine so as to avoid being injured,' and the defendants kept it in proper repair and fit for use, they would not be liable; and these were questions for the jury.</p>

<p>Executors and administrators — Accounting — Conelusiveness of decree — Action on bond.</p> <p>1. On the settlement of an executor’s final account on the merits, the probate court fixed the amount due a legatee, and ordered its payment, from which decree no appeal was taken. Afterwards an application was made by the legatee for leave to sue the executor’s bond, personal notice being given to his surety, who did not appear. Leave was granted and suit brought, and the surety on the trial made an effort to attack the correctness of the decree made on the accounting.</p> <p>Held, that, as nothing appeared in the probate proceedings to put in question the jurisdiction of the probate court to make such decree, it could not be thus collaterally attacked. Clark v. Fredenburg, 48 Mich. 263.1</p> <p>2. Clark v. Fredenburg, 43 Mich. 263, held not to decide that the defendant in a suit on an executor’s bond is precluded, by failing to resist the application to bring such suit, from resorting to any legal defense against the decree of the probate court made on settlement of the executor’s account.</p>

<p>Railroad companies — Liability for labor debts — Order by subcontractor on merchant</p> <p>1. The true intent and meaning of Act No. 100, Laws of 1871 (How. Stat. 3433,3434, 3435), is to protect laborers and persons furnishing material for the construction and repairs of railroads, which protection is limited to the amount due from the railroad company to its contractor at the time the bill of items of the labor and material furnished is furnished to the company.</p> <p>2. The labor covered by the statute applies to manual'labor of persons employed, and does not extend to teams used upon the work, and the material referred to does not include feed furnished such teams, or clothing or board of the laborers so employed.</p> <p>3. To warrant a recovery in a suit based on the statute, the plaintiff must allege and prove that the items of labor for which he claims payment were performed by a laborer employed by a contractor with the company, or by a subcontractor, in constructing or repairing the railroad, and that the bill of items of labor and materials sued for has been furnished to the railroad company, together with the amount claimed, prior to its usual pay-day when such claim shall be due, or, if the contractor was not paid on such pay-day, then prior to the payment then due to the contractor. He must further show that at the time he furnished said bill of items, or at.the pay-day next ensuing, there was an amount due from the company to the contractor, and the amount, and that the claims he seeks to collect are undioputed, and acknowledged to be due from the contractor or subcontractor.</p> <p>4. The claims protected by this statute are assignable, and may be enforced by the assignee in the same manner, and to the same extent, as the assignor could have done.</p> <p>5. A railroad subcontractor gave to men in his employ orders on a merchant for goods to a fixed amount, who delivered the same, the drawer charging the orders directly to the men as so much money paid them.</p> <p>Held, not an assignment of the claim of the men for labor performed for the subcontractor, who treated the orders as payment to the laborer, which, when paid, extinguished the laborer’s claim. Martin v. Michigan & Ohio R. R. Co., 62 Mich. 458.</p>

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

<p>Error to St. Clair. (Stevens, J.)</p> <p>Replevin. Defendant brings error.</p> <p>The facts are stated in the opinion, and in former report of case in 58 Mich. 424.</p>

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

<p>Bills of exchange — Conditional acceptance — Evidence.</p> <p>A contractor gave a draft to a lumber dealer from whom he was purchasing lumber to be used in a house he had contracted to build for the drawee, payable at a given date, which was accepted on condition “that the dwelling shall be completed before this draft is paid.” This was the only reference to the building contract contained in the draft or acceptance.</p> <p>Held, in a suit against the drawee to recover the amount of the draft, that it was competent to read the contract in evidence to explain the “completion” covered by the acceptance.</p>

(Judkins, J.) Bill to enforce mechanic’s lien. Defendants appeal from decree overruling plea to the jurisdiction. The facts are stated in the opinion.

<p>Contract — Stipulated damages — Right of action.</p> <p>Defendants contracted to make certain repairs on vessels owned by plaintiffs by a given date, and on their failure so to do plaintiffs were authorized to deduct from the last payment a certain sum for each day’s default, as liquidated damages. Plaintiffs sued for said damages, declaring on the contract, and averring defendants’ failure to perform same; but the declaration was silent as to any deductions having been made.</p> <p>Held, that plaintiffs’ right to sue for the breach of the contract was altogether independent of the clause in the contract authorizing them to retain and keep back the damages out of the last payment, and that if, upon the trial, it should appear that they had retained such stipulated damages, such fact might be shown in bar of the action. Stillwell v. Temple, 28 Mo. 156.</p>

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

<p>Principal and agent — Authority to give promissory note.</p> <p>A financially embarrassed firm agreed witR four creditors, secured by chattel mortgages on its stock, that one of the copartners, named Carpenter, should assume the management of the business, and conduct it in the name of defendant as trustee, which was done, and the mortgages afterwards paid. After the payment Carpenter continued the business in the name of the trustee, and also dealt in coal, which was purchased in his own name, but the profits realized mingled with the general business, no separate account being kept thereof. In conducting said firm business, Carpenter gave and took notes in the name of the trustee generally, with his knowledge, and gave such notes in settlement for purchases of coal made in Carpenter's name.</p> <p>Held, in a suit on one of said coal notes, that if such ooal transactions were a part of the general business, and Carpenter had authority from the trustee to give notes in his name in payment of goods bought in such business, he had a right to pay for the coal in jthe same manner, and that, in legal éfíect, the debt was that of the trustee, and not of Carpenter.</p>

<p>Error to Eaton. (Hooker, J.)</p> <p>Appeal from settlement of final account of administrator, who brings error.</p> <p>The facts are stated in the ojfinion.</p>

<p>Error to Chippewa. (Steere, J.)</p> <p>Information for murder. Respondent was convicted and sentenced.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Ingham. (G-ridley, J.)</p> <p>Case. Plaintiff brings error.</p> <p>The facts are stated in the opinions.</p>