Volume 66 — Michigan Reports

(Stickney, J.) Bill filed to declare default of plank-road company, under Act No. 232, Laws of 1875. Defendant appeals from decree overruling demurrer for want of legal authority to file bill. The facts are stated in the opinion.

<p>Chattel mortgage — Right of mortgagee to possession — Sufficiency of declaration for damages from unlawful retention— Non-payment of surplus on sale — Trover.</p> <p>1. A mortgage containing no express promise to pay interest, and specifying no time of payment, either at a future day or on demand, is due as soon as given, tp secure so much of the indebtedness as was due at time of its execution. I/yon v. Ballentine, 63 Mich. 98 (head-note 5).</p> <p>2. Where a chattel mortgage covered all of the existing and future-acquired stock in a lumber yard, and authorized the mortgagee to enter upon the premises where the goods might be, and take possession thereof, and sell and dispose of the same, he may, on default, enter and take possession of the yard and mortgaged property for the purposes of such sale; but he cannot exclude the mortgagor from the yard or office, and when the lumber is sold his right to possession is ended. In such a case the purchasers would have a right to enter and remove the lumber purchased, but this should be done as quickly as possible.</p> <p>3. In such a case a declaration alleging that the mortgagee not only took possession of the mortgaged property, but wrongfully, mal- • ioiously, and to greatly injure the mortgagor, took possession of the yard and stables, and the entire business and premises, contrary to the wish and will of the mortgagor, and excluded him entirely from occupying or using the same to carry on his lawful business, and interrupted and injured said business by putting boards across the entrance to said yard, and inscribing thereon the word “ Closed,” and, by reason of the premises, prevented and interrupted said mortgagor’s business, and prevented him from occupying the yard and carrying on such business, and still continues to hold such possession, — is broad enough to warrant a recovery of damages arising out of the alleged unlawful holding and continued occupancy of the yard and retention of the unsold property.</p> <p>4. A mortgagee is liable to the mortgagor in trover for the surplus arising on the sale of the chattel-mortgaged property on failure to pay over the same, such act amounting to a conversion of the goods sold in excess of the debt.</p>

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

(Tuttle, J.) Bill to redeem from a mortgage. Complainaat appeals from decree dismissing bill. The facts are stated in the dissenting opinion.

<p>Municipal corporations — Grade defined — Construction of grading contract.</p> <p>1. The ordinary meaning of the word “grade” is the amount of difference between the “ grade line ” and a level or horizontal line, and to grade a street is to bring the surface of the street to the - grade line, and includes the necessary excavation and filling to accomplish this result.</p> <p>2. Under the contract in this case (see opinion), the work of removing bridges, platforms, cross-walks, sidewalks, and hitching-posts is all included, by a fair construction of the whole contract, under the specification of “ grading.”</p> <p>3. A grading contract required the street to be graded to its full width, and in doing this the contractor filled in so that the slope of the embankment extended outside of the street lines, and upon private property.</p> <p>Held, that he could not recover for such outside filling, neither he nor the city having any right to deposit earth outside of the lines of the street, without the consent of the owner of the adjoining land, for the purpose of supporting the embankment.</p> <p>4 A grading contract specified the price of excavation and removal of the earth a distance of 500 feet, and for every additional foot the contractor was to receive the. same price, pro rata.</p> <p>Held, that the language was not ambiguous, and that it was error to instruct the jury that a recovery under such pro rata clause was limited to what such removal was reasonably worth.</p> <p>5. A grading contract provided that the stone curb should be laid for a specified price per foot, the stones to be 18 inches in depth, and' to be set in a bed of bank sand and gravel, and to extend 14 inches above the gutter. In order to properly set them, it was necessary to excavate a trench to the required depth, after the surface was brought to the proper grade; and for this excavation the contractor was allowed to recover as excavation under the contract.</p> <p>Held, that the work was included in the bid for furnishing and laying the stone curb as specified.</p>

<p>Municipal corporations — Condemnation proceedings for opening street — Oath to jury — Compensation to railroad company— Contract restricting right of eminent domain.</p> <p>1. In a street-opening case under Act No. 124, Laws of 1883, it is the duty of the court to instruct the jury as to their duties and the law of the case, and the oath provided for by section 7, requiring them “ to faithfully and impartially discharge all such other duties as devolve upon them in the case,” sufficiently includes a determination by them of the necessity of malting the proposed improvement.</p> <p>2. On the former trial of this case witnesses were allowed, against objection, in answer to the question “ what amount of compensation ought to be paid to the appellant,” to fix the same at a given sum, and the jury were instructed that in fixing such compensation they must be governed by the evidence, and not by their own arbitrary opinions, as to what should be awarded. In setting aside the verdict the Court held such testimony clearly incompetent, the amount of such compensation being the very thing which the Constitution refers to the jury, who must mate up their own conclusions from proper data. [See 58 Mich. 643, 647.] On the second trial the same witnesses were asked for their judgment as to the value of the land taken, and the damage to the remainder by such taking, and in the case of the appellant such last damage was confined to the estimated expense of fixing up the approaches to the railroad, and putting the street or crossing in good condition; and the Court held that the appellant’s case was not prejudiced by such answers.</p> <p>3. The laying out and opening of streets by the common council of a city is the exercise of its legislative functions, and any contract made by the city with an individual or corporation, by which it agrees that it will not in the future open or extend a street in any particular place or part of the city, is an abnegation of its legislative powers, unauthorized by its charter, and may be alike destructive of the convenience and prosperity of the municipality, and is void.</p> <p>4. The property of a corporation like that of a railroad company, like other property, is held subject to the necessities of the public, and together with its franchise, when inseparable, may be taken for public use whenever the necessities of the public require it, compensation being made therefor.</p> <p>5. All contracts are subject to the power of eminent domain, wherever the public necessity requires its exercise, and must be regarded as made with reference thereto.</p> <p>6. The compensation to be ma^e to a railroad company for crossing its right of way for street purposes not only includes the use of the land occupied by the street for such crossing, but any extra expense created by the use of the right of way for the street, in the ordinary use of the company’s road, and such other damage as it may sustain for injury to its track, right of way, and franchise. occasioned by the crossing, and which may be properly considered as the natural, necessary, and approximate cause thereof. This rule will not include expenses made necessary in order to comply with the police regulations of the State or municipality, but such damages only as arise in making the structural changes necessary to comply with statutory regulations, and which must necessarily continue in the future operation of the defendant’s road.</p>

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

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

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

<p>Promissory notes — Delivery on condition — Sale by payee — Trover.</p> <p>The payee in a note given on the delivery by him of a deed of land to the maker on condition that, if the maker fails to sell the land to third parties, the title of the payee should be defeated and the note be returned to the maker, has a conditional title to the note, subject to be defeated by the non-sale of the land, and is liable in trover for the value of the note in case he disposes of it and the land is not sold.</p>

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

<p>Corporations — Organized bodies — Re-instatement of members — Mandamus.</p> <p>The only ground on which this Court can interfere with organized bodies by mandamus in aid of a member is that, as corporations, they are subject to our judicial oversight to prevent their depriving members of corporate privileges illegally. Where such bodies are not corporations, or where the question presented does not involve tangible and valuable corporate privileges, we cannot interfere in this way. A person who is wronged, if he has a legal cause of action, may pursue it in the appropriate action for damages against the persons who wrong him, but .mandamus cannot lie.</p>

<p>Error to Wayne. (Speed, J;)</p> <p>Case. Plaintiff brings error.</p> <p>The facts are stated in the opinion filed on former hearing.</p>

<p>Error to Schoolcraft. (Steere, J.)</p> <p>Kespondent was convicted of arson, and brought error.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal law — Statutory burglary — Information.</p> <p>Respondent was informed against for breaking and entering a saloon “not adjoining to or occupied with a dwelling-house.”</p> <p>Held, that the evidence did not support the information, but shows the commission of another offense; hence respondent must be discharged.</p>

(Smith, J.) Respondent was convicted of an assault with intent to do great bodily harm less than the crime of murder. The facts are stated in the opinion.

(Jennison, J.) Appeal from order adjudging a debtor guilty of contempt in not assigning to a receiver.- The facts are stated in the opinion.

<p>Fire insurance — Condition of title — Equitable ownership — Additional insurance by mortgagee — Forfeiture of policy.</p> <p>1. An axiplicant for insurance is not required to show the exact condition of his title unless requested to do so (Castner v. Farmers’ Mut. Fire Ins. Co., 46 Mich. 15), and equitable ownership will support a recital of ownership (Farmers’ Mut. Fire Ins. Co. v. Fogelman, 85 Mich. 481.)</p> <p>2. The failure by an applicant for fire insurance to mention incumbrances, if not inquired about, the application being oral and no deceit being practiced, is immaterial. O’Brien v. Ohio Ins. Co., 52 Mich. 181.</p> <p>3. As the loss of mortgaged insured property diminishes the mortgagor’s means of payment, it cannot be said that a mortgage lessens the insurable interest, unless there is a stipulation to the contrary, or some very peculiar state of things.</p> <p>4. A clause avoiding a fire-insurance policy if the assured obtains further insurance without the written consent of the company cannot prevent a mortgagee from insuring his own risk,</p> <p>5. Subsequent insurance by a mortgagee cannot be treated as further insurance which will vitiate a policy in favor of the mortgagor, whose application gave notice oí such mortgage, and of the right of the mortgagee to secure further insurance.</p>

<p>Village orders — Purchaser — Mandamus — Issues of fact — Special questions.</p> <p>1. Warrants or orders drawn by. a village on its treasurer are not negotiable instruments, and the purchaser takes the same sub' ject to all existing equities between the payee and the village, or between the payee and any other person, without reference to the good faith of such purchaser.</p> <p>2. Whether How. Stat. ? 7606, as amended by Act. No. 15, Laws of 1885, providing for the submission of special questions to a jury, applies to the trial of an issue of fact framed in the Supreme Court in a mandamus case, and sent down to the circuit for trial, is doubtful. The circuit judge cannot restrict the scope of the inquiry ordered, and it is not certain that he can enlarge it.</p> <p>3. The refusal to submit to a jury special questions, none of which are material to the issue in such a sense that their determination by the jury would, either one way or the other, serve any useful or important purpose in arriving at a decision of the issue submitted to them, is at the most error without prejudice.1</p> <p>4. In this case a mandamus is granted, not as a matter of right, but because the respondent seems willing to pay the amount found due by the jury on the orders.</p>

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

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

) . Bill for a partnership accounting. Defendant appeals from a decree granting the relief prayed for; The facts are stated in the dissenting opinion, and in the eases referred to in the headnote.

<p>Trespass — Counsel participating in criminal case based on same facts— Waiver of objections — Evidence—Cross-examination.</p> <p>1. Where after the selection of a jury in a civil suit an objection was made to any further proceedings in the case for the reason that the attorney for the plaintiff had been engaged as assistant prosecutor in a criminal prosecution against the same defendants growing out of the same state of facts as those relied on for a recovery in the civil suit, no objection having been made to said attorney’s appearing up to that time,—</p> <p>Held, that if, when the defendants pleaded to the declaration filed by said attorney, he had taken part in said criminal prosecution, such plea was a waiver of any objection to his commencing said civil suit; and, if they learned of his connection with the criminal prosecution after the civil suit was commenced, it was their duty to make their objection at once.</p> <p>2. Defendant was sued in trespass for leading a party of “ strikers ’’ onto plaintiff’s premises, and interfering with his business there carried on, and a witness was allowed to testify to what defendant said at a meeting of the •' strikers ” on the evening before the commission of the alleged trespass, and to be fully cross-examined by defendant’s counsel, who sought to go further, and show on such cross-examination what defendant said to the men at a meeting held on the forenoon of the same day.</p> <p>Held, that an objection to the proposed cross-examination as calling for a statement of the defendant to be used as evidence in his own favor, and as being no part of the cross-examination, was well taken1.</p> <p>3 No man has a right to enter upon the premises of another for the purpose of inducing persons in his employ to leave their employment to the injury of the employer, for the purpose of securing higher wages, or working less hours for the same pay, or for any other reason, and by so doing he becomes a trespasser.</p>

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

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

<p>IAbel and slander — Privileged communications — Malice—Burden of proof — Evidence.</p> <p>Plaintiff sued defendant for an alleged libel, and the trial court held the communication charged as libelous to be privileged, and that the plaintiff, in order to recover, must prove that it was published with express malice, upon Which point he held there was an entire absence of evidence, and directed a verdict for the defendant.</p> <p>Champlin, J., filed an opinion, concurred in by Sherwood, J., holding that the communication was privileged, but favoring a reversal on the ground that there was evidence from which the jury would have been justified in finding express malice in such publication.</p> <p>Campbell, O. J., concurred in a reversal, because not satisfied that the libel was privileged.</p> <p>Morse, J., concurred in a reversal.</p>

<p>Appeal from Berrien. (Smith, J.)</p> <p>Bill filed to foreclose a mortgage. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Capias ad respondendtim — Sufficiency of affidavit — Arrest of defendant — Erroneous statement as to residence in affidavit — Action against sheriff for neglect of duty — Evidence.</p> <p>1. The affidavit for capias set forth in the opinion is held sufficient to authorize the issuance of the writ, the falsity of the representations being positively stated as of the Icnoivledge of the affiant, and in this respect being distinguishable from Sheridan v. Briggs, 53 Mich. 571.</p> <p>2. An affidavit to hold to bail need not be entitled in the cause for the commencement of which it is th&foundation.</p> <p>3. A defendant in a suit commenced by capias ad respondendum, by plaintiffs residing out of this State, can only be arrested in the county where he is a resident.</p> <p>4. An affidavit to hold to bail in a capias suit brought by non-resident plaintiffs described the defendant as “ of the city of Niles ” his residence being in the county of Cass, where the suit was commenced. On the trial the plaintiffs were not permitted to show the fact of such residence, the court holding that the affidavit showed the defendant to bo a resident of Berrien county, in which the city of Niles is located.</p> <p>Held, that the recital in the affidavit was not such an averment of residence as precluded the plaintiffs from showing defendant’s actual residence.</p> <p>5. On the trial of a suit against a sheriff for negligence in not arresting a defendant on a capias, who was charged with obtaining a bill of merchandise by means of false representations as to his financial standing, it is competent to show what said defendant said in regard to his circumstances at the time he purchased the goods.</p> <p>6. In such a case the sheriff returned to the capias that, after diligent search and inquiry, he was unable to find the defendant in his county, and on the trial plaintiffs offered to show that the defendant was actually taken into custody by the under-sheriff, who allowed him to escape, which testimony was objected to as contradicting the sheriff’s return, and excluded.</p> <p>Held, that the testimony was competent, and should have been admitted.</p> <p>7. In such a case plaintiffs’ book-keeper, having testified to the sale-of the goods to the defendant in the capias suit, stated on cross-examination that defendant was arrested in a prior suit in justice’s court for the same cause of action, but the case was not tried.</p> <p>Held, that the testimony regarding said justice’s court suit, should have been stricken out on motion of plaintiffs’ attorney.</p>

<p>Appeal from Macomb. (Hooker, J., presiding.)</p> <p>Bill for specific performance of contract.</p> <p>The facts are stated in the opinion.</p>

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

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

<p>Taxation — Apportionment of State and county taxes — Equalization by board of supervisors — Certificate of chairman — Excessive levy — Presumption of legality of tax — Constitutional law — Title of act.</p> <p>1. The provisions of How. Sfcafc. § 1031, requiring the board of supervisors to ascertain and determine the amount of money to be raised by tax for county purposes, and apportion this, and the amount of State tax required to be raised, among the several townships in the county, in proportion to the equalized valuation of the taxable property therein, are mandatory, and such determination and apportionment must be entered at large upon their records.1</p> <p>2. In making such record it is not necessary that the word “apportion ” be used, or any particular form adopted; but it is sufficient if it appears that the just share of the amount to be raised for State and county purposes is distributed among the several townships</p> <p>3. Where the proper committee reported the amount necessary to be raised for county expenses, stating the amount needed for different objects, which report was adopted by the board of supervisors, and afterwards certain salaries were raised, and the increase added to the aggregate amount reported by the committee,—</p> <p>Held, not-to affect the validity of the tax.</p> <p>4. The certificate of equalization by the chairman of the board is no part of the assessment roll, and need not be copied into the tax roll delivered to the treasurer.1</p> <p>5. Where a committee equalized the several assessment rolls of the county, and made a report of their action to the board of supervisors, which was adopted,—</p> <p>Held, that this made the action of the committee that of the board, and was sufficient under the statute.</p> <p>6. The record of a board of supervisors of its action in equalizing the several assessment rolls of the townships consisted of a tabular statement embracing all of the townships in the county, and giving under the headings “Real as assessed,” “Personal,” “As equalized,” “Added to,” and “Deducted from,” the valuation of the real estate as assessed, and of the personal property as assessed, followed by the aggregate of both plus the amount added or minus the sum deducted, as the case might be, followed by the amount of such additions or deductions, all under the appropriate headings.</p> <p>Held, that there was no ambiguity in the record, which was sufficiently definite for all purposes.</p> <p>7. How. Stat. § 1027, contemplates that the additions or deductions made by the board of supervisors in equalizing the assessment rolls of the townships will be added to or deducted from the aggregate valuation of all of the taxable property in the township.</p> <p>8. The decision in Bobbins v. Barron, 33 Mich. 134, is approved.</p> <p>-9. The title to Act No. 106, Laws of 1861, namely, “An act to provide for a State Board of Equalization,” covers a section providing for the equalization of the assessment rolls of the several townships by the board of supervisors of the respective counties preparatory to action by such State Board of Equalization.</p> <p>10. Where the board of supervisors equalized the assessment rolls of the several townships at their June session, preparatory to the meeting of the State Board of Equalization, as provided in How. Stat. § 324,—</p> <p>Held, that a failure to go through with the formality of another equalization in October was not fatal to a tax deed issued on a sale for taxes delinquent for that year; citing Silsbee v. Stoekle, 44 Mich. 565, approvingly.</p> <p>11. The ground upon which excessive tax levies are' held to invalidate a tax deed is that they are unauthorized, and that the officer has no jurisdiction to make the same; and where such a levy is made upon the taxable property contained in the whole roll, the entire roll is invalidated.</p> <p>So held, where an excess of $3.01 of two-mill tax was levied upon the property of a township.</p> <p>12. Where the record of the board of supervisors showed that $150 was authorized to be raised for township purposes, but the sum of $310.97 was levied, as appeared by the supervisor’s warrant,—</p> <p>Held, that, in order to overthrow the statutory presumption in favor of the legality of the tax, the party claiming the contrary must introduce the township records to show that the amount levied for township purposes was unauthorized,</p> <p>13. Where the only evidence of the apportionment of the State tax among the several townships in a county was the including by the clerk of a certain sum for that purpose in his certificate to the supervisor, under How. Stat. § 1032,—</p> <p>Held, insufficient, and that a tax deed issued on a sale of land for such tax was void.</p>

<p>Partnership — Mortgage of lands Toy survivor — Equity—Deposition.</p> <p>1. In this case a mortgage executed by a surviving partner on lands conveyed to the copartners jointly is held invalid as to the heirs of the deceased copartner, for reasons stated in the opinion.</p> <p>2. As against the heirs of a deceased copartner, the survivor has no right to dispose of or incumber the interest of the deceased in copartnership lands for his individual debts, or for any purpose other than their disposition, by sale or otherwise, to close up the partnership business and pay partnership debts.</p> <p>3. How. Stat. § 7475, authorizing the faking of depositions in Canada and the United States on a notice provided for in the • statute of which said section forms a part, applies to suits in chancery.</p>

<p>Equity — Fraud—Rescission of contract — Vendor’s lien.</p> <p>1. A person who has been defrauded must act promptly, and, if he would repudiate the contract complained of, must do nothing in affirmance of it after ascertaining the facts; nor can he repudiate it, and retain the fruits or benefits of the transaction.</p> <p>2. It is an established doctrine that a court of equity will not rescind a contract on the ground of fraud, when the party asking the relief is not able to put those against whom it is sought into the same situation in which they stood when the contract was entered into.</p> <p>2. Bringing suit by a grantor to recover the unpaid purchase money on a sale of lands alleged to have been secured through fraud is an affirmation of the contract of sale, and prevents its subsequent repudiation on such ground; and in any case the return of the money received is a condition precedent to such repudiation.</p> <p>4. On the facts stated in the opinion the complainant is held to have affirmed the contract of sale, but to be entitled to enforce a vendor’s lien for the unpaid purchase money, his bill stating a case upon which such relief can be based.</p>

<p>Statutes — Confirmation of title — Correction of deeds.</p> <p>1. Act No. 197, Laws of 1883, grants privileges, and not rights, and it was lawful for the Legislature to lay down any conditions deemed proper; and unless a party seeking to avail himself of its provisions presented his claims and proofs within six months - after the act went into effect, such application was too late,</p> <p>2. Where the land purchased by an applicant for relief under said act was misdescribed in his deed, which error was corrected by direction of the grantor,—</p> <p>Held, that unless such correction was made and the execution of the deed reacknowledged in time to save the title under the statute, it would not be sufficient to save the statutory privilege.</p> <p>8. A correction which would change a void deed into a good one could only be made by conforming to the statute of frauds.</p> <p>4. “On or about” March 8 is just as consistent with a day or two after as before.</p>

<p>Appeal from superior court of Detroit. (Chipman, J.)</p> <p>Judgment creditor’s bill, and in aid of execution.</p> <p>The facts are stated in the opinion.</p>

<p>Forcible entry and detainer — Appeal-bond—Liability of sureties-,</p> <p>1. How. Stat. § 7080, making the continuance of the liability of a. surety on a bond given on appeal from a justice’s judgment depend upon the issuance of an execution within 80 days after rendition of judgment against the principal in the circuit court, does not apply to appeals from the decisions of justices in forcible entry and detainer cases, but is confined to cases arising under the justices’ act.</p> <p>2. A failure to find the amount of rent due as provided in How. Stat. § 8299, and to state the same in the judgment, will not release any party to the bond given on appeal to the circuit court, such sum con-tituting no part of the judgment, and not beingenforcible against either principal or surety; tbe object of the statute being to ascertain the extent of the defendant’s liability, and furnish record evidence of its discharge by payment, without waiting for suit to be brought on the appeal-bond.</p>

<p>Negligence — Fatal injury to infant at railroad crossing — Contributory negligence — Action for benefit of parents — Evidence— Damages.</p> <p>1. It is gross negligence in a railroad company to back its trains across the main street in a village without a brakeman at the rear end as a lookout, and in readiness, in case of danger, to apply the brakes, and thus prevent collision or accident.</p> <p>2. While the non-employment of a watchman at a street crossing by a railway company may not be imputed as negligence, yet it casts upon the company the duty of observing additional care in operating its trains across the street to prevent accidents.</p> <p>3. On the facts stated in the opinion, plaintiff’s intestate was not a trespasser in attempting to cross defendant’s track, and whether she exercised proper care in so doing was a question for the jury.</p> <p>4. It is a wholesome precaution for persons approaching a railway track to look both ways, and listen for approaching trains, and this is what is generally required; but it is not a rule of universal application. Every case must depend upon its own circumstances, and it would be unreasonable to apply such rule, under all circumstances, without regard to the condition of things at the time. Carver v. Plank Road Company, 61 Mich. 585 (headnote 6); Potter v. F. & P. M. R. R. Co., 62 Id. 22, 23; Guggenheim v. Lake Shore & M. S. Ry. Co., 66 Id. 150,151 (head-notes 4, 5, 10).</p> <p>6. In a suit for damages under How. Stat. § 8314, for the negligent killing of a child by a railway company’s cars, testimony showing the pecuniary circumstances of the parents is admissible.</p> <p>6. Where, in such a case, certain tables, constructed from the official records of the registrar general for England and Wales, known as the “ English Tables,” were received in evidence to show the average duration of life, based upon experience, at certain ages, which showed a less probable duration of life than the American experience, as shown in How. Stat. § 4245,—</p> <p>Held, that the error was not one prejudicial to the defendant.</p> <p>7. In an action brought under How. Stat. § 8314, to recover damages for the negligent killing of a child of 11 years of age, the court instructed the jury that in 'assessing damages they might allow for the value of the services of the deceased to her parents until she arrived at the age of SI years, and might further take into consideration such other pecuniary benefits as the parents might reasonably be expected to realize had she lived for the balance ■ of her probable duration of life, not exceeding theirs; to the latter portion of which charge exception was taken, defendant’s counsel insisting that the damages should be limited to the minority of the child.</p> <p>Held, that the exception was well taken, and that any estimate or value placed upon events so uncertain must be without any satisfactory basis to rest upon.</p> <p>8. In such a case the jury are not warranted in giving damages not founded upon the testimony, or beyond the means of compensation for the injury inflicted ; but they must be confined, with rare exceptions, to those damages which are capable of being measured by a pecuniary standard.</p> <p>9. The rule that in actions brought under How. Stat. § 8314, where the parents are the beneficiaries, if the evidence shows that the deceased had been in the habit of making contributions from his own means to them, their damages might be based and estimated upon such customary contributions, is not applicable in the case of a very young child who has never made any such contributions, and when it is impossible to show that she ever will.</p> <p>10. In this case it is held that the verdict was no larger than was authorized by the statute, nor than the jury might have found under that portion of the charge relating to the services of the deceased during her minority; and, no error appearing to have been committed prejudicial to the defendant,. the judgment for $1,550 is affirmed.</p>

<p>Taxation — Banking corporation.</p> <p>1. A savings bank organized under the general law of this State is not taxable except for real estate under the tax laws of 1882 and 1885,</p> <p>2. Under the tax law of 1882, the shares of stock issued by a bank include in their value all of the property of the bank, including its real estate, the value of which is to be deducted for separate taxation.</p> <p>3. A corporation is always, so far as its property is concerned, a mere trustee for its stockholders, whose interests are in its corporate ' charge.</p> <p>4. The tax law of this State has provided that, except as to real estate, all taxation of bank property shall be against the shareholders, who are the equitable and beneficial owners of all the assets, although in law the corporation is a distinct person; every share representing an aliquot portion of such assets, which in the aggregate are represented by all of such shares.</p>

<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>Mortgage — Subsequent purchaser — Delay of mortgagee — Extension of time — Subrogation—Principal and surety.</p> <p>1, A mortgagor conveyed a portion óf the mortgaged premises, with covenants of warranty and against incumbrances, before the - maturity of the mortgage debt, and after it became due the time for payment was extended for three years, but without consideration. Shortly before the expiration of said extension, the grantee negotiated for the purchase of the mortgage, but by reason of the accumulation of interest was unable to raise the money necessary for that purpose; and the mortgagee commenced foreclosure proceedings at law, which were enjoined at the suit of the purchaser on the ground of the failure of the mortgagee to enforce collection at maturity, the mortgagor having become insolvent during the interim.</p> <p>Held, that the only right of the purchaser, as against the mortgagee, was to redeem and become subrogated to his rights, which right could not be destroyed by any agreement he might make.</p> <p>2. A subsequent purchaser of mortgaged premises does not stand as a mere surety, although a mortgagee cannot knowingly discharge other lands from the mortgage, without, to some extent, risking his own priority, so far as the subsequent purchaser is damnified by losing the benefit of a sale in inverse order.</p> <p>3. A surety is not discharged by an extension of time unless resting in a valid contract.</p>

<p>Error to Wayne. (Jennison, J.)</p> <p>Trial of statutory issue in garnishee suit. Garnishee brings error.</p> <p>The facts are stated in the opinion.</p>

<p>False representations — Statute of frauds.</p> <p>Plaintiff sued defendant for his alleged false representations by which plaintiff was induced to deliver brick to subcontractors to be used in buildings they were erecting for defendant. The representations were to the effect that plaintiff would be safe in delivering the brick, and would get his pay therefor, there being money enough to pay for all material under the control of defendant, which would be first paid for, and plaintiff was directed to send his bill into the architect’s office, and it would be paid by defendant. Plaintiff was aware of the insolvency of the subcontract's, and had stopped delivering brick for that reason, of which facts defendant had notice.</p> <p>Held, that How. Stat. § 61S8, requiring all representations concerning the character, conduct, credit, ability, trade, or dealings of any other person to be in writing in order to support an action thereon, has no application to the case, and that unless there was such an amount of money due or to become due the contractors, and unless defendant’s relations with them were such as to enable him to- control and direct the payment of the money to plaintiff for the brick when delivered, defendant’s representations were fraudulent, the testimony showing that plaintiff relied up m their truth.</p>

<p>Error to Wayne. (Reilly, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion, and in the former report of the case.</p>

<p>Error to Eaton. (Hooker, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion, and in head-note 2.</p>

<p>label and slander — Privileged publications — Candidate for office.</p> <p>1. The language imputed to the defendant, used with the intent and purpose charged in the declaration, must be regarded as libelous upon its face.</p> <p>2. When a man in this country becomes a candidate for an office, elective or appointive, his character for honesty and intergity, and his qualifications and fitness for the position, are put before . the people, and the publication of the truth in regard to such candidate is not libelous, but the publication of falsehood concerning him is wrong, and deserves to be punished.</p>

<p>Error to Ingham. (Howell, J., presiding.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion, and in note, page 315.</p>

<p>Appeal from Kalamazoo. (Mili?, J.)</p> <p>Bill in aid of execution.</p> <p>The facts are stated in the opinion.</p>

(Speed, J.) Petition for payment of claim against estate of deceased person in process of partition. The facts are stated in the opinion.

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

<p>Case made from Kent. (Montgomery, J.)</p> <p>Assumpsit. Plaintiff assigns error.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Kent. (Montgomery, J.)</p> <p>Bill to abate a private nuisance.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Emmet. (Eamsdell, J.)</p> <p>Bill to enjoin mortgage foreclosure.</p> <p>The facts are stated in the opinion.</p>

<p>Promissory notes — Joint indorsers — Discharge—Judgment,</p> <p>In a suit against two joint indorsers of a promissory note, the court directed a verdict against one, and in favor of the other, and - judgment was rendered accordingly. The plea was joint, and there was no pretense of severance by bankruptcy or other act or thing which could terminate the liability of one and leave the other bound.</p> <p>Held, error, the discharge of one surety being the discharge of both.1</p>

<p>Fraudulent conveyances — Sale conflicting with revenue laws — Submission to jury — Bill of exceptions — Additional stipulation of counsel.</p> <p>1. Counsel cannot, by stipulation, add testimony to a bill of exceptions not embraced therein, nor authenticated by the judge’s signature.</p> <p>2. Plaintiff sued defendants for the alleged unlawful conversion of certain tobacco and unstamped cigars and other property, seized at the suit of a judgment creditor of his vendor ; which sale was attacked as fraudulent in fact as to creditors, and as void in law as to the cigars, being in violation of the United States internal revenue laws, the government not consenting to such sale. The court directed a verdict for the defendants on the last-named ground.</p> <p>Held, that the question of the fraudulent character of the sale should have been submitted to the jury under proper instructions, even though, as to the cigars, it was in violation of the revenue laws (which point is not decided), for the reason that it embraced property not covered by those laws.</p>

<p>Mortgage— Foreclosui e — Ejectment.</p> <p>After the regular foreclosure of a mortgage by advertisement, it cannot be attacked in an action of ejectment, “either as fraudulent in its inception, or on the ground that it had been discharged before foreclosure;” the remedy being in equity. Yale v. Stevenson, 58 Mich. 537.</p>

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

<p>Will — Construction—Creation of life-estate.</p> <p>A testator devised to his daughter certain real estate “ during her natural life-time, and after her death to her heirs and assigns, r fpreverto have and to hold the same to her during her natural life, and afterwards to her heirs and assigns, forever.</p> <p>Held, that she took a life-estate in the land, and no other or greater interest.</p>

<p>Negligence — Impeaching testimony,</p> <p>1. On review of the testimony (see opinion), the Court held that the jury should have been instructed that there was no evidence that the alleged incompetency of defendant’s fireman was the proximate cause of the injury complained of.</p> <p>2. On the trial of a suit against a railroad company for injuries sustained in coupling cars by the alleged failure of defendant’s fireman to obey a signal to “go ahead ” given by the “ helper,” the helper admitted on cross-examination that he was at plaintiff’s house the morning after the accident, and was then asked if he did not tell plaintiff’s wife that he gave said signal, and that the'fireman backed up the engine, and if, in answer to the question by plaintiff or his wife, “who the fireman was,” he did not reply, “ Some damned fool that Smart had put on there recently,” — all of which he denied; whereupon plaintiff’s wife was allowed to testify that such a conversation took place.</p> <p>Held, that what the helper said the morning after the accident was not admissible as an admission binding the defendant, or as evidence of any fact stated in the conversation; and that the court erred in refusing to instruct the jury that the testimony of plaintiff’s wife as to what was said could be considered solely for the purposes of impeachment.</p>

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

<p>Trespass — Evidence—Notice of title — Damages—Vexatious appeal.</p> <p>1. Plaintiff sued defendant in justice’s court in trespass for sawing off about a foot of the upper part of plaintiff’s fence, averring ownership in fee of the land which was described in his declaration, to which defendant pleaded the general issue. No question was made on the trial as to plaintiff’s title, and the proof on his part was very positive that the fence was entirely within the land occupied by him for a period of many years.</p> <p>Held, that .plaintiff’s title was not put in issue, and that testimony showing such possession could not be overthrown by proof of location of boundary line.</p> <p>2. Surveyors have no right to assume to determine lines and landmarks according to their own notions ; and there are few evils more annoying to public or private peace than the intermeddling with land boundaries, and the distui'bance of peaceable possessions.</p> <p>3. In a suit for damages for cutting off a portion of plaintiff’s fence, it was insisted on behalf of the defendant that, if the alleged trespass improved the fence, there was not even a nominal wrong entitling plaintiff to nominal damages.</p> <p>Held, that it was plaintiff’s right to have a fence of such height as he adopted, and it was not the right of defendant to lower it, and that the verdict should have been for the full value of the property destroyed,</p> <p>4. In this case $20 damages were imposed for a vexatious appeal.</p>

<p>Nuisance — Maintenance of mill-dam — Equity.</p> <p>Complainants filed a bill to abate a mill-dam, maintained by defendant on land owned by him, as a nuisance, he having acquired the right of flowage, by express grant, of all the lands overflowed by reason of the dam, except the overflow in times of high water, which then extended beyond his right. The dam had been erected and maintained for more than 60 years, and used for ponding water for running a saw-mill. The case was heard upon pleadings and proofs in the court below, and the relief asked for in the bill granted. The testimony was not returned on appeal.</p> <p>Held, that the bill should have been dismissed, for the reason that the defendant ought to be permitted to hold and enjoy his property until it is taken from him by the verdict of a jury, or some express statutory proceeding warranted by the Constitution of this State, and for the further reason that the rights of the complainants can be adjudicated and enforced at law as well as in equity.</p>

<p>Error to St. Clair. (Stevens, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion, and in the opinion found in 56 Mich. 559.</p>

<p>Error to superior court of Detroit. (Chipman, J.)</p> <p>Ejectment. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Conditional sale — Retention of title as security — Fixtures—Qoodr faith purchaser — Trover and conversion.</p> <p>1. A millwright contracted to build a mill and furnish the necessary machinery for a fixed price, and afterwards purchased the machinery upon a contract, in which it was agreed that the title should not pass out of the vendors until fully paid for, nor should the machinery become a fixture by being annexed in any manner to the realty; and that the vendors should have the right to enter upon the premises upon which it was located, and take possession of the machinery, in case of non-payment. At the time of such sale the vendors had knowledge of the contract of the vendee, and the use to be made of the machinery ; and, on the guaranty that the machinery should be shipped on payment of the down payment agreed to be made by the vendee, such payment was made by the parties for whom he was building the mill, who had no knowledge of the retention by the vendors of the title to the machinery as aforesaid. _</p> <p>Held, in an action of trover by the vendors against the owners of the mill for the value of the machinery, which had been placed in the mill under the contract, that a verdict should have been directed for the defendants, for the reason that the plaintiffs understood when they sold the machinery that it was purchased by the vendee for the purpose of attaching it to the realty of the defendants under a contract which bound him to do so, and with that knowledge obtained $500 of the defendants, and guaranteed the shipment of the machinery for the puroose above stated, without notice to or a knowledge on the part of the defendants that plaintiffs still claimed the title to the machinery,</p> <p>2. Where the undisputed testimony of the plaintiffs in a case establishes a fact affecting their right to recover, it is error to submit such fact to the jury as a question in dispute under the testimony.</p> <p>3. In this State, where the validity of conditional sales of personal property has been recognized, the right of the vendor to follow the property into the hands of third parties, or to sue them for its conversion, depends upon the good faith of the transaction ; and where the purchase is made from the vendee in good faith, and without notice, and under circumstances in which the original vendor must have known or contemplated that the property would be sold by his vendee, and incorporated into or made a part of the freehold, his rights are subservient to those of the innocent purchaser. Knowlton v. Johnson, 37 Mich. 51; Ingersoll v. Barnes, 47 Id. 104.1</p>

<p>Constitutional law — Title of act — Repealing clause — Mutual insurance companies — Cancellation of policy — Assessment—Costs.</p> <p>1. A statute is not void for duplicity of title and objects where the title, after stating the object, does no more than add a notice of a repealing clause, which repeal would be effected by implication by the enactment of the law itself.</p> <p>2. A policy-holder in a mutual fire insurance company, at the time of paying an assessment, surrendered his policy to the collecting agent under an unauthorized agreement by the agent that it should be canceled. The agent forwarded the policy to the secretary of the company, who indorsed thereon “ Canceled March 19, 1884.” At this time the company was liable for losses not included in said assessment, and for other liabilities, and made a second assessment to cover the same, in which the canceled policy was included, and the holder made a payment on account of such assessment, which, with the prior payment, more than paid all of his liabilities to the company up to the time of such cancellation. .The canceled policy was never returned to the policy-holder by the officers of the company, or by the receiver appointed after such cancellation, nor was he informed that the policy was not considered as canceled, and he treated it as of no further value.</p> <p>Held, that the payments so made should discharge the policyholder from any further liability, and that he could not be made liable on an assessment made by the receiver under a statute requiring it to be made on the “ members and persons insured.”</p> <p>■3. The receiver of a mutual fire insurance company brought suit in the circuit court on an assessment of $20, and recovered judgment for that sum, with costs.</p> <p>Held, that costs should have been given to the defendant, under How. Stat. § 8964, subd. 5.</p>

(Howell, J., presiding.) Ejectment. Defendant brings error. The facts are stated in the opinion. It cannot be claimed that a general manager of a railroad, any more than any other employé, can admit away the title of his principal to land or other property: 'Michigan Paneling, etc., Co. v. Pars ell, 38 Mich. 475; Bond v- Pontiac, Oxford & Port Austin R. R. Co,, 62 Id. 643.

<p>Negligence — Custom—Directing verdict — Contributory negligence.</p> <p>In this case it is held that upon the testimony a verdict should have been directed for the defendant, and that the deceased was guilty of such negligence as would preclude a recovery, and that the defendant’s duty towards him was measured by its duty towards men skilled in the work undertaken by him, and in the attempted performance of which he met his death. An examination of the opinion is essential to a correct understanding of the case.</p>

(Jennison, J.) Assumpsit. Plaintiffs bring error on judgment in their favor for a portion of their claim. The facts are stated in the opinion.

Exceptions before judgment from the superior court of Grand Eapids. (Parrish, J.) Information for manslaughter. Bespondent convicted. The facts are stated in the opinion.

Case made from Kent. (Montgomery, J.) Case, for obstructing a natural water-course. Plaintiff .assjgns error. The facts are stated in the opinions.

<p>Error to Muskegon. (Russell, J.)</p> <p>Trover for chattel-mortgaged property. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Muskegon. (Russell, J.)</p> <p>Injunction bill, and for other relief.</p> <p>The facts are stated in the opinion.</p>

<p>Trover and conversion — Demand—Delay for obtaining advice.</p> <p>1. An administrator who takes possession of personal property claimed by the decedent, with knowledge of an adverse claim by a third party to its ownership, has a reasonable time in which to take counsel and ascertain his legal rights in the premises, without subjecting himself to a suit for its conversion.</p> <p>2. Taking possession of personal property by an administrator, pending an injunction suit commenced by the decedent to restrain a claimant from taking such possession, will not necessarily constitute a conversion of the property, but it must further appear that he either disposed of the property, or intended to deprive such claimant of the same.</p>

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

<p>Injury from vicious dog — “Keeper” defined.</p> <p>One who treats a dog as living at his house, and undertakes to control his actions, is his keeper, within the meaning of How. Stat. § 2119, and liable for injuries inflicted on travelers; and this is so whether such keeping was by arrangement with the real owner, or by the wrongful harboring of the animal.</p>

(Joslin, J.) Bill for an accounting, and for other relief. The facts are stated in the opinion, . so far as material to the decision.

<p>Drain tax — Payment under protest — Gertiorari.</p> <p>After payment of a drain tax under protest, and commencement of suit to recover back the money, certiorari will not lie to review the proceedings of the drain commissioner.</p>

<p>Petition for appointment of administrator — Jurisdiction—Report of commissioners on claims — Promissory note — Alteration — Part payment.</p> <p>1. A petition for the appointment of an administrator alleging that the' petitioner is a creditor of the deceased is sufficient.1</p> <p>2. The action of the probate court in appointing an administrator, where it has jurisdiction, is not open to collateral attack, but should be appealed from if not satisfactory.</p> <p>3. On an appeal by heirs from the allowance of a claim against the estate, they cannot object to a premature return by the commissioners, on-claims, which could damnify no one but a creditor who had no opportunity to present his claim.</p> <p>4. Where a debtor and creditor had an accounting, on which a balance was struck, and. secured by the debtor’s note, which all parties supposed was correctly dated, but which by mistake was antedated one year, which error was corrected by the ■ payee, with no fraudulent intent, after which the payor made two payments on. the note,—</p> <p>Held, that such payments removed the presumptive effect of the alteration.</p> <p>5. In pkobate court no obligation but that of the deceased can be established-against his estate.</p> <p>So held, where the note of the deceased was signed by his wife as.surety; such fact not discharging him from liability.</p>

<p>Highways — Certiorari—Appeal to township hoard.</p> <p>1. It is contrary to the settled policy of the State, and to the practice-of this Court, to interfere without necessity with the local administration of the State.</p> <p>2. To entitle a petitioner to a writ of certiorari to revie tv proceedings-for laying out a highway, it must appear that he has been prevented from resorting to his statutory appeal without his fault, or his case must present strong equities to dispense with it; and, where practicable, the petition should be verified by the oath of the party himself.1</p> <p>8. A copy of the petition on which a writ of certiorari is allowed should be served with the writ.</p>

(Jennison, J.) Assumpsit. Defendant brings error. ' The facts are stated in the opinion, and in the former reports of the case.

<p>Logs and logging — Lien jor damage to land — Owner—Replevin— Ai bitration.</p> <p>Plaintiff replevied certain logs which were left by a river drive on defendant’s land, without any steps being taken to arbitrate defendant’s damages under Act No. 142, Laws of 1886, and defendant was awarded damages, and a lien therefor was found in his favor. The plaintiff raised the question of the constitutionality of the provisions of the act providing for arbitration proceedings to fix amount of damages.</p> <p>Held, that the lien made put and found by the jury could not he destroyed by the provision for arbitration proceedings, so long as no arbitration was attempted, and that the constitutional question was out of the case.</p>

(Jennison, J.) Assumpsit for penalties for collecting illegal toll. Plaintiff brings error. Tbe facts are stated in tbe opinion.

<p>Partnership — Dissolution—Aceeptanee of note in payment of firm debt — Suit upon contract — Effect of prior action upon void guaranty.</p> <p>1. After the dissolution of a copartnership, one partner has no right to take a note in his own name, and intended for his individual use, in settlement of a claim due the firm.</p> <p>2. Plaintiffs, as subcontractors, sued defendant to recover for labor alleged to have been performed for him, and on the trial it appeared that they had brought suit for the same demand against the other party to the main contract, upon a guaranty of payment, which was held void.</p> <p>Held, immaterial, and no defense to the present suit.</p>

<p>Logs and logging — ‘Injury to riparian proprietors — Negligence.</p> <p>1. In a suit to recover damages for flooding plaintiff’s land by tbe use of a dam in driving logs, it appeared that during tbe years covered by the declaration other parties than the defendant had made like use of other dams owned by them on the same stream and its tributaries, and the testimony failed to distinguish the-several floods; but defendant’s testimony tended to show the number of floods raised by defendant, and the season of the year when so raised.</p> <p>B'eld, that defendant was not liable for damages caused by the floods raised by other parties, but that the testimony as to the number of floods raised by the defendant, and the season of the year when raised, afforded some data from which the jury could estimate the damage caused by defendant's floods.</p> <p>2. Persons putting logs into a navigable stream, or causing the same-to be done, are liable to riparian proprietors for injury to their lands and crops caused by log jams raising the water to such an extent as to overflow said lands.</p> <p>8. A corporation formed for the purpose of running and driving logs cannot be held liable for injury to riparian proprietors, caused by log jams, unless, by the exercise of due care, the formation of such jams could have been prevented ; but, it being its duty to exercise due diligence in running logs, and in breaking jams-formed by natural causes, it is liable for such damages as may arise from unnecessary or unreasonable delay in removing such jams.</p> <p>4. If a log-driving company, with knowledge of the existence of logjams, and its inability to remove same, adds to the jam by running logs onto such jam, and thereby injures land-owners, it is-liable for the damages caused by such action.</p>

<p>Equity — Decree—Effect of appeal.</p> <p>1. On the perfection of a chancery appeal, all proceedings in the lower court, except taxation of costs, are stayed by How. Stat. § 6739, and any proceeding in that court thereafter, not allowed by the appellate court, is null and void; nor can the decree be-used as evidence in another suit.</p> <p>g. A decree in equity cannot be proved without the rest of there cord.</p> <p>3. "While an appeal is pending on the merits, the case stands for rehearing in the appellate court, the same as if no final decision had been made ; which Court can make its own decree, or adopt or modify the decree below; and, whether affirmed or not, the whole case stands open until the appeal is disposed of.</p>

<p>Execution — Fees of constable — Contract void as against public policy.</p> <p>An agreement between a constable and judgment creditor, for the payment of a sum in excess of the statutory fees allowed for serving an execution, is void an against public policy; nor can such officer evade the statute by recovering on a quantum meruit. Willemin v. Bateson, 63 Mich. 309.</p>

<p>Mortgage forelosure — Effect of death of mortgagor before sale — See head-notes.</p> <p>1. The judgment below being affirmed by an equal division of the Court, nothing is decided.</p> <p>2. Campbell', C. J., filed an affirmative opinion, concurred in by Sherwood, J., holding that a commissioner’s deed executed on a foreclosure sale after the death of the mortgagor, who was a party to the suit, and left minor children surviving her, cannot be attacked in an ejectment suit founded on the title thus obtained.</p> <p>8. Champlin, J., filed an opinion, concurred in by Morse, J., favoring a reversal, on the ground that the effect of the death of the mortgagor was to render all subsequent action in the foreclosure case nugatory.</p>

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

<p>Appeal from superior court of Grand Rapids. (Parrish, J.)</p> <p>Bill for a divorce and an accounting.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from superior court of G-rand Rapids. (Parrish, J.)</p>

fJennison, J.) Appeal from tbe allowance of a claim in the circuit court, which bad been rejected in the probate court. The facts are stated in the opinion.

<p>Bills and notes — Parol evidence — Accommodation indorsers — Contribution.</p> <p>1. It is a general rule, to which, there are several well-recognized exceptions, that extrinsic evidence is not admissible to contradict or vary the legal effect of a negotiable promissory note.</p> <p>2. Where there are several indorsers of a bill or note, the legal effect of their successive indorsements is to make them liable to each other in the order of time in which they sign their names; but this legal effect may be rebutted by parol proof that all the indorsers were accommodation indorsers, and, by agreement among themselves, co-sureties.</p>

(Parrish, J.) Bill to prevent defendant from laying or keeping water-pipes in the city of Grand Rapids. The facts are-stated in the opinion.

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

<p>Error to Wayne. (Jennison, J.)</p> <p>Claims against estate of deceased person.</p> <p>The facts are stated in the opinion.</p>

<p>Replevin — Appraisal—Value of property — Waiver of return.</p> <p>1. The appraisal in a replevin suit is prima facie evidence of the value of the property, but to have that effect it must be offered in evidence.</p> <p>3. It is error to render a judgment for the value of the property in favor of a defendant in replevin who has only a special interest therein- by virtue of its seizure on legal process.</p>

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

<p>Landlord and tenant — Agreement by landlord to pay costs of appeal from judgment evicting tenant — Evidence—Discontinuance of writ of error — Res judicata.</p> <p>1. A tenant appealed from a circuit court commissioner’s judgment evicting him from the leased premises, which was affirmed, and, after a recovery by the appellee upon the appeal bond, the tenant sued the landlord for damages, declaring on a special promise to pay the costs and expenses and damages to which the tenant might be subjected, which promise induced1 him to take the appeal. On the trial the commissioner testified that at time of making the alleged promise he advised the landlord that he would be liable to the tenant if finally evicted, but the court refused to allow him to be cross-examined as to the nature of the supposed liability which induced him to express such an opinion.</p> <p>Held, that a full examination into the circumstances should have been allowed on such cross-examination.</p> <p>2. In such a case the result of the original judgment was restitution and easts, and the bond on appeal was only for payment of rent and costs; and, unless the landlord requested the tenant to defend the suit on the bond, the charge for counsel fees and costs in that suit was not a proper element of damages to be considered by the jury in said suit against the landlord.</p> <p>8. Discontinuing a writ of error does not vacate the judgment, and, in the absence of some agreement vacating it, it remains a lawful adjudication, the payment or settlement of which does not impair its judicial force.</p>

<p>Trespass — Boundary—Location of line by agreement — Adverse possession.</p> <p>1. A land-owner who locates a division fence beyond the line established by a survey claimed by him as establishing the true line is prima facie a trespasser.</p> <p>3. An arrangement between land-owners as to the location of a division line, less than 15 years old, to be binding, must have been made with the understanding that it should be so regarded.</p> <p>8. An understanding between land-owners that a fence is laid provisionally, and is not to supplant the- true line, may prevent such location becoming conclusive for more than 15 years; and such a location by agreement need not continue for that length of time to bar a change.</p> <p>4. Adverse possession for 15 years is a statutory bar, and needs no agreement; and actual knowlege of such adverse holding is not required when the circumstances are such that the contiguous holder ought to have such knowledge.</p>

<p>Negligence — Storing stone in highway — Control of horse — Contribuir tory negligence.</p> <p>1. In this case, the judgment being affirmed by an equal division of the Court, nothing is decided.</p> <p>2. Morse, J., filed an affirmative opinion, concurred in by Champlin, J., holding:</p> <p>a — The owner of premises adjoining a highway has no business to fill up any portion of the same with stones, wood-piles, brush-heaps, or any refuse matter from his premises; and the practice of so doing, indulged in by many, has not yet grown into a custom that the law will respect, or use as an excuse for injuries therefrom. He may use portions of the highway, outside of the traveled track, for the temporary storage of materials with which to build fences'or walls; but, even in such cases, more care must be taken to guard against danger to those lawfully using the highway than was taken by the defendant in this case.</p> <p>6 — It cannot be said, as matter of law, that the owner of a horse of a mild disposition, gentle and kind, and used to being driven to water without halter or bridle, loose, in the highway, is guilty of negligence in permitting the animal to be so driven; it being a question for the jury whether, under the circumstances, the horse was so driven prudently and with ordinary care.</p> <p>3. Campbell, C. J., filed an opinion, concurred in by Sherwood, J., favoring a reversal,'and holding:</p> <p>a — It is not safe to turn horses loose into the street at all, and the owner who does this is responsible for what may befall the ' beast.</p> <p>■b — In this case the horse was directly imperiled by the person in charge, and was liable to do as well as to suffer injury.</p>

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

<p>Error to Saginaw. (Gage, J.)</p> <p>Covenant. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Mortgage — Bankruptcy—Assignee’s sale — Purchase by mortgagor.</p> <p>A mortgagor went into voluntary bankruptcy 60 days after executing the mortgage, which was given to secure a bona fide debt. The assignee filed a bill to set aside the mortgage as a fraud upon the creditors, which was dismissed, and after the discharge of the bankrupt he bid in the land at assignee’s sale, subject to the mortgage, and received a deed therefor. In a suit to foreclose the mortgage he set up as a defense his hopeless insolvency at the time of its execution, of which fact the mortgagee had notice, and who for that reason urged the giving of the security, with knowledge that its execution would precipitate proceedings in bankruptcy; and charged that the mortgage was in fraud of the bankrupt act.</p> <p>Held, that the bankrupt obtained the same title to the premises that he held after executing the mortgage, purchasing the equity of redemption cleared of the cloud placed upon it by the bankruptcy proceedings; and that his attempted defense was unconscionable.</p>

<p>Execution — Set-off—Mandamus—Motion.</p> <p>1. Where a sheriff has made a set-off of executions under the statute, and returned the larger one as satisfied, it is not competent for the circuit court on motion to set aside the return, and grant a second execution on the judgment.</p> <p>2. The refusal of a circuit judge to compel a sheriff to make a set-off of executions under How. Stat. § 7709, is not reviewable on mandamus (Wells v. St. Joseph Circuit Judge, 39 Mich. 21); but such refusal will not bar the right to proceed in equity for the same relief (Wells v. Elsam, 40 Mich. 218).</p> <p>3. It is contrary to all right to finally determine legal claims on motion and affidavits. Parlcer v. Judge of Calhoun Circuit, 24 Mich. 408; Brown v. Thompson, 29 Id. 75.</p>

(Smith, J.) Appeal from order directing that claim proved under the assignment law do not share in dividend paid other creditors. The facts are stated in the opinion.

<p>Execution — Exemption—Suits of clothes owned by tailor — Question of law — Undisputed facts,</p> <p>1. Suits of clothing not exceeding $250 in value, made by a tailor in the prosecution of his business, are exempt from execution (Stewart v. Welton, 32 Mich. 56), and may be put to such use as the owner pleases, without affording his creditors any legal ground for complaint.</p> <p>2. Where the facts from which to determine, as a question of law, whether certain property is exempt from execution are undis- ' puted, the question need not be submitted to the jury. Rosenthal v. Scott, 41 Mich. 632; Toledo & A. A. R, R. Co. v. Johnson, 55 Id. 456.</p>

(Jennison, J.) Forcible detainer. Complainants recoverd before commissioner and in circuit court. Defendant Burns brings error. The facts are stated in the opinion.

<p>Sale — Delivery—Payment—Statute of frauds — Bequests to charge.</p> <p>' 1. Plaintiff sued to recover the price of goods alleged to have been sold to defendant on a verbal contract, the amount to be ascertained by deducting ten per cent, from an inventory made at cost by persons agreed upon by the parties. No money was paid, but a portion of the goods were delivered, and the balance held subject to defendant’s order, no time for payment being agreed upon. Upon this theory plaintiff recovered a verdict.</p> <p>Held, that, upon plaintiff’s theory, the case was not affected by the statute of frauds, and that the verdict was conclusive on the question of the making of the contract of sale, in the absence of errors of law.</p> <p>2. A request not pertinent to the facts of the case as developed by the testimony on either side is properly refused, as is one assuming a fact as proved which should be left to the jury.</p>

<p>Constitutional law — Organization of county — Ejectment—Jurisdiction.</p> <p>It is competent for the Legislature, on organizing a new county out of territory belonging to an existing county, to provide for the prosecution of a pending ejectment suit covering land embraced in the new county.</p>

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

<p>Contract for sawing logs — Evidence.</p> <p>1. “ Upon a careful review, we do not think this case, after our previous consideration of it, presents any substantially new questions. ”</p> <p>3. Where certain defects in sawing put the lumber in a lower grade on the market, and reduced its current value, testimony tending to show that a resawing could be had at a moderate price, which would prevent very much of this reduction, is admissible; and, if circumstances made such resawing practicable, the jury might very well have found it should have been had.</p>

<p>Criminal law — Jury—Challenge to the array — Argument of counsel.</p> <p>1. It is good ground of challenge to the array that the sheriff drew the names from the box, instead of the clerk, as required by How. Stat. §7567.</p> <p>2. The statutes which establish the rule for the drawing of jurors leave no discretion in the officers designated to conduct such drawing, but plainly indicate how the proceeding shall be conducted. People v. Hall, 48 Mich. 486.</p> <p>3. The right of a respondent to the aid of counsel in making his defense is as well secured under our laws as his right to be tried by jury, and on a trial for assault with intent to murder the time such counsel should occupy in addressing the jury, within the limits of circuit court rule No. 63, should be left discretionary with the counsel when acting in good faith.</p>

(Parrish, J.) Respondent was convicted of assault with intent to do great bodily harm less than the crime of murder. The facts are stated in the opinion.

<p>Criminal law — Complaint for keeping saloon open on Sunday— Want of knowledge — Jurisdiction.</p> <p>1. A complainant swore positively that the defendant kept his saloon open on Sunday, and the complaint contained the other necessary averments.</p> <p>Held, that the averment was such as would be made by an eye-witness, and could only properly be made by one having knowledge, and was sufficient, if true, to sustain a prosecution, and the police justice had a right to act upon it as true.</p> <p>2, The fault of a complaining witness in not adhering to the truth cannot avoid a warrant, so as to prevent jurisdiction from attaching; which having once attached, and the case being legally at issue for trial, there is nothing left to do but try it on the merits, and it cannot be dismissed or otherwise put out of court on motion of respondent based on an affidavit of a want of knowledge on the part of complainant of the facts sworn to in the complaint.</p>

<p>Error to Manistee. (Judkins, J.)</p> <p>Information for seduction. Respondent was convicted.</p> <p>The facts are stated in the opinion.</p>