Volume 67 — Michigan Reports

<p>Certiorari — Return—Affidavits—Exhibits1</p> <p>1. Certiorari will not lie to review proceedings for the sale of lands by an executor, on the petition of one who is not shown by the return of the probate judge to have any interest in said lands.</p> <p>2. An affidavit for certiorari cannot be used t j establish a fact not found in the return, from which the Court must obtain the facts in controversy.</p> <p>3. In applications for mandamus and certiorari, all recor’d evidence relied upon should be brought before the Court as exhibits in the shape of certified copies, or authenticated in some way, rather than by bare recitals of its existence in the affidavit or petition. Cronin v. Supervisors of Kalkaska Co., 58 Mich. 448.</p>

(Montgomery, J.) Bill to enjoin the collection of toll by a plank-road company. Defendant appeals from a decree for costs, the main relief asked for being denied. The facts are stated in the opinion. *

<p>Ghattel mortgage — Failure to file — Preferences—Antedating security —Execution of new mortgage in lieu of prior unrecorded mortgage — Agreement not to file — Estoppel in pais — Notice with plea.</p> <p>1, In this case Campbell, O. J., filed an opinion, concurred in by Sherwood, J., favoring a reversal, and holding :</p> <p>a — No one can complain of a failure to file a chattel mortgage for any length of time, unless after its date, or before possession taken under it, the creditor assailing it has dealt with the mortgagor as he would n ot have dealt had the mortgage been recorded» or else has secured some lien on the property. Waite v. Mathews, 50 Mich. 392.</p> <p>b — A debtor may always prefer any of his creditors, so long as it is not done with some unlawful or forbidden purpose. He may pay or secure any creditor in full, and no unpreferred creditor can complain that such preference has been made. Root v. Potter, 59 Mich. 498.</p> <p>c — Antedating will not affect a valid chattel mQrtgage, where done with no wrong purpose.</p> <p>d — A chattel mortgage given to secure an honest debt, in place of former unrecorded mortgages, is not void for that reason.</p> <p>e — Declaring an unrecorded mortgage void as to creditors' merely places the parties in the same position as if it had never existed, and does not create a perpetual inability to give a new security.</p> <p>Champlin, J., filed an opinion concurring in a reversal, and holding! a — The non-filing of a chattel mortgage by agreement with the mortgagor, to enable him to obtain a fictitious credit, renders the mortgage void as to creditors who trusted the mortgagor upon the faith that his property was unincumbered; and when a new mortgage, given in lieu of the unrecorded one, is assailed as fraudulent, and the testimony tends to show that it was given to carry out such fraudulent agreement as to non-filing, the evidence should be submitted to the jury.</p> <p>b — Where a defendant relies upon an estoppel in pais as a. defense to an action, he must give notice thereof under the plea of the general issue. Hinman v. Eakins, 26 Mich. 80 ; Dale v. Turner, 84 Id. 405 ; Whitlemore v. Stephens, 48 Id. 573.</p> <p>Morse, J., filed an opinion concurring in a reversal, and holding:</p> <p>a — A creditor who accepts an antedated mortgage, and claims priority over other creditors by reason of such date, which is referred to in his notice of foreclosure sale, and who at time of sale is notified by the attorney for another creditor that the mortgage is void as to him because of the sale of goods to the • mortgagor by said creditor between said date and the date of filing (said mortgage having been filed at the true date of its execution), to which he makes no answer, but orders the sale to proceed, is estopped, as to such creditor, from asserting that his. mortgage was actually executed at the later date.</p> <p>b — Tais action being trove,-, and the estoppel not having been pleaded, it could not avail on the trial, but, if p'eaded, the action of the circuit judge ,in directing a verdict for the defendant would have been a correct disposition of the case; but as the case was tried, the question of the validity of the mortgage' should have been submitted to the jury.</p>

<p>Assignment for benefit of creditors — Chattel mortgage — Failure to file — Rights of assignee,</p> <p>1. The assignee of an insolvent debtor, in the absence of fraud in fact and of statute regulations, takes only the debtor’s rights, and is affected with claims, liens, and equities existing against the debtor were he asserting claim to the property.</p> <p>2. An assignee for the benefit of creditors is not a purchaser in good faith, and the statute relative to common-law assignments does not place him upon any better footing than the creditors he represents.</p> <p>3. An unfiled mortgage, valid between the parties, is equally valid and effective as against the assignee for the benefit of the creditors of the mortgagor, who became such prior to the date of the mortgage, and have not been led to do or to omit doing anything upon the strength of such non-filing.</p> <p>4. The filing of a chattel mortgage is designed to take the place of the delivery of the property; and the object of the statute requiring such filing is to protect persons dealing upon credit with one who is in possession of personal property as the ostensible owner, upon the reliance of such ownership, from secret conveyances, by which he is enabled to obtain a fictitious credit to which he would not be entitled if the true situation were known.1</p>

(Gage, J.) Bill to enjoin the collection of a special sewer assessment. Defendant corporation appeals. The facts are stated in the opinion.

(Gage, J.) Case, for failure of trustees of school district to require contractor to execute bond required by Act No. 94, Laws of 1883. Plaintiff brings error. The facts are stated in the opinion.

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

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

<p>Injury to possessory rights — Lease—Evidence to show termination.</p> <p>Plaintiff bought certain hotel furniture subject to a lease, of which she took an assignment; after which the furniture was levied upon as the property of the vendor, and plaintiff sued the execution creditor and the officer for injury to her possessory rights, claiming that the lease had been terminated, and on the trial offered to show that one Koehane, who had guaranteed the payment of the rent, notified plaintiff that he desired the lease terminated, to which plaintiff agreed, and informed the lessee of such facts, who said he could not give up the property, because he was in possession under the officer who made said levy.</p> <p>Held, that the proposed testimony was competent, having a tendency to show that the lease was terminated by the consent of the lessee, who did not claim to hold under it, but under the levy, and by request of the guarantor, and that plaintiff was entitled to the possession of the property.</p>

(Parrisb, J.) Case. Plaintiff brings error. The facts are stated in the opinion, and in the former report of the case, found in 63 Mich. 557.

<p>Criminal law — Evidence—Sending document to jury-room.</p> <p>The testimony in criminal cases is always to be given in open court, and in the presence of the accused; and the practice of sending papers to the jury-room, even in civil cases, is dangerous, and not often to be resorted to, and in criminal cases never.1</p> <p>So held, where the testimony of a complaining witness taken on the preliminary examination was received in evidence on the trial, against respondent’s objection, and after the jury had retired they requested that it be sent to the jury-room, to which respondent’s counsel objected, and the request was refused, but afterwards, during the absence of said counsel, the request was renewed, and the testimony, to which was attached the complaint and warrant and testimony of another witness, was sent to the jury.</p>

<p>Criminal law — Evidence—Deposition taken on preliminary examination — Death of witness — Return to circuit court— Failure to read testimony to witness.</p> <p>1. The testimony of a witness taken on a preliminary examination in a criminal case is admissible in evidence on the trial on proof of the death of the witness, if otherwise unobjectionable.</p> <p>2. A justice certified that the examination of a witness was taken by him on oath, and sworn to and subscribed by the witness before him, and the deposition, so certified, was returned by him, with the warrant and other papers pertaining to the case, to the clerk of the circuit court.</p> <p>Held, a sufficient compliance with How. Stat. § 9478.1</p> <p>5. It is doubtful if the practice of showing orally upon the trial of a criminal case that the depositions of witnesses taken upon the preliminary examination were not read to them before signing should be permitted, where no objection was made upon such examination, or before pleading in the circuit court; and if such fact should appear, under such circumstances, it would not vitiate the examination, as the law does not in terms require such reading. People v. Gleason, 63 Mich. 626.2</p>

(Green, J.). Respondent was convicted of selling liquor in Bay City without paying the statutory tax. The facts are stated in the opinion.

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

<p>Carriers — Duty and liability — Construction of contract,</p> <p>1. It is well settled that, in the absence of any special agreement or contract as to trains going over connecting lines, it is the duty of the cairier to carry safely to the end of its line, and there deliver to the next carrier in the route beyond, and by so doing the carrier is discharged.</p> <p>2. “ The obligation of the first or any preceding carrier is discharged when he has safely delivered the goods to the next succeeding carrier to whom such delivery is required in order to complete the transportation, without he is bound to carry it to destination.” Railway Co. v. McKenzie, 43 Mich. 609.</p> <p>3. On a review of the facts of this case, the Court held that the contract of the defendant was not for through carriage, and was performed on delivery of the goods at La Otto to the Wabash Railway Ccmpany, with notice that the same were to be delivered on presentation of the bill of lading by the consignee.</p>

<p>Assumpsit — Wawer of tort — Evidence—Impeachment.</p> <p>1. On the trial of an action of asaumpsit involving the examination-of an open account between the parties, the plaintiff‘gave testimony tending to show- that he had placed in defendant’s hands a. stock of liquors and cigars, which defendant had converted to his own use.</p> <p>Held,, that a motion to strike out this testimony on the grounds-that the witness had testified that he never sold the liquor and cigars to the defendant, and that the declaration contained no-waiver of the tort, was properly refused.</p> <p>2. Immaterial matter cannot he introduced into a case for the purpose of impeaching a witness.</p>

<p>Equity — Money decree — Assignment for benefit of creditors — Execution — Fraudulent disposition of assets — Trust.</p> <p>1. Equity has no general jurisdiction to grant money decrees.</p> <p>2. Under our statutes, the whole of a debtor’s estate vests in his assignee under an assignment for the benefit of the debtor’s creditors, and is not subject to seizure by any particular creditor.</p> <p>3. The fact that one man furnishes another with means to start in business, whether for honest or dishonest purposes, does not give the former any legal title in the goods. If funds are so invested, they may create a trust in favor of creditors to that extent, but the goods do not belong to the debtor.</p> <p>4. In this case, on a review of the testimony, the Court held that the jury should not have been charged that there was any case against the defendant to be passed upon by them.</p>

<p>Practice in Supreme Court — Findings of fact — Contract to erect building and secure location of post-office therein — Public policy.</p> <p>1. It is the exclusive province of the trial judge to pass upon the testimony in a non-jury case, and draw the inferences therefrom, and his conclusions as to its weight and bearing are not reviewable in the appellate court.</p> <p>So held, where a circuit judge refused to allow certain findings of fact prop ised by counsel, a review of the evidence disclosing no error in fad in the findings made.</p> <p>2; An agreement for the payment of a certain sum of money on condition that the payee should erect a building at a specified place, near the payor’s property, to be occupied as post-office by a given date, is not void as opposed to public policy, it appearing that the payee used no undue influence in securing the location of said post-office, and was guilty of no corruption or corrupt practice in making such contract.</p>

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

<p>Principal and surety — Lease—Reduction of liability — Joint defendants.</p> <p>1. An agreement under seal, indorsed upon the back of a lease at time of its execution, by which the signer becomes surety for the punctual payment of the rent and performance of the covenants mentioned in the lease by the lessees, and, in case of default on their part, agrees to pay and perform for them, makes him a surety for the lessees, and he may be sued jointly with them for unpaid rent.</p> <p>2. A surety cannot complain of the reduction of the rent reserved in a lease, for the payment of which he is liable, though made without his knowledge ; nor will it release him from his obligation any more than if the amount of such reduction had been indorsed as a payment upon the lease.</p>

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

<p>Taxation — Abstract books — “ Cash value” defined.</p> <p>1. Abstract boots referring to land titles have no intrinsic value, and are not taxable. Dart v. Woodhouse, 40 Mich. 399.</p> <p>2. The constitutional provision requiring assessments to be made on property at its cash value means not only what may be put to valuable uses, but what has a recognizable pecuniary value inherent in itself, and'not enhanced or diminished according to the person who owns or uses it.</p>

<p>Corporations — Contract of partnership — Liability-.</p> <p>1. A corporation, may, in furtherance of the object of its creation, contract with an individual, though the effect of the contract may be to impose upon it the lability of a partner.</p> <p>2. As to third persons, the liability of a partner is frequently ■ imposed, though it was not the intention of the party sought to be charged to become one, and even though a partnership could not have been made.</p> <p>3. In a suit against a corporation and private person, the testimony tended to show that the defendants assumed to form a partner, ship, to whom the plaintiff sold goods, relying upon the liability of both vendees, who had the benefit of the goods, or the proceeds thereof, they being such as both defendants were using in their business, and who once gave their note therefor.</p> <p>Held, sufficient, if established, to render defendants liable, under the authority of Day v. Buggy Co., 57 Mich. 146.</p>

<p>Error to Kalamazoo. (Mills, J.)</p> <p>Case. Defondant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Master and servant — Duty to employe — Dangerous machinery — Negligence — Province of jury.</p> <p>1. The law does not hold persons using machinery to any absolute duty of insuring its safety, but does require some care in introducing untried novelties. That which has been approved as safe by reasonable experience may be presumed safe by those who rely on that experience to justify them in selecting it. But where the result of any defect must be an immediate danger to human life, it devolves on those who expose it to the danger of a new experiment, which turns out badly, to show that they have followed such a course as the understood rules of science or mechanics applicable to such matters rendered safe according to ordinary probabilities.</p> <p>2. There was at least enough in this case to go to the jury on the question whether the new shaper-head was a reasonably safe implement and properly designed, and whether the principle involved in it was not a departure from safe methods as before applied ; and the fact that there may have been some conflict on one or another qu- stion would not allow the trial judge to deprive the jury of the power to determine the conflict.</p>

<p>Fire insurance — Bill to reform policy — Mistake.</p> <p>A bill will lie to reform an insurance policy issued to proteet a mortgagee's interest where, by a mutual mistake, the ñame of the occupant and supposed owner of the premises was inserted as such in the policy, neither party having actual notice or knowledge of an adverse title growing out of .an ext cution. sale, to set aside which a suit was then being prosecuted by such occupant, but the insurance agent being informed that the title to the property was in dispute.</p>

<p>Justices of the peace — Replevin for beasts distrained — Bond— Waiver of objections — Appeal.</p> <p>1. Act No. 188, Laws of 1879 (How. Stat. § 6856), gives jurisdiction to justices of the peace in replevin for beasts distrained.1</p> <p>2. Pleading issuably and going to trial on the merits, after an adverse decision of points raised on special appeal, is a waiver of any objections to the regularity of the proceedings, if the justice had jurisdiction at all.</p> <p>3. Irregularities in giving a replevin bond ought not to affect a judgment after the jury have found for the plaintiff, who is entitled to the possession of the property.</p>

<p>Vexatious appeal — Damages.</p> <p>In this case the judgment is affirmed, with $20 damages for vexatious appeal.</p>

<p>Equity — Bill to enjoin ejectment suit — Infants—Deed—Estoppel,</p> <p>1, On a review of the testimony, the Court affirmed the decree as just between the parties.</p> <p>3. As a general rule, the doctrine of estoppel should not be predicated upon the acts and conduct of an infant. Corey v. Burton, 32 Mich. 32.</p>

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

Exceptions before judgment from Hillsdale. (Howell, J.) Eespondent was convicted of forgery. The facts are stated in the opinion, and in 57 Mich. 69.

(Montgomery, J.) Bill to rescind a contract for an exchange of land. Complainants appeal from decree dismissing bill. The facts are stated in the opinion.

Mandamus. Application for mandamus to restore relator to membership in a benevolent society. The facts are stated in the opinion.

<p>Contract — Duplicate—Evidence—Practice in circuit courts — Striking out testimony previously admitted under objection — Usury.</p> <p>1. A contract purporting to have been executed in duplicate was allowed to be proved by a copy, the loss of the original being admitted ; it appearing that no duplicate was in fact made, and it not appearing that one was intended to be made, and th > party objecting to such secondary evidence not having required it.</p> <p>Held, that an objection to such testimony, because no duplicate was aver made and given to the objecting party, was properly overruled.</p> <p>2. A trial court can take time to consider evidence introduced, and, finding error in its admission, correct it by removing the testimony from the case, and cautioning the jury against giving it any weight or consideration in their deliberations; and it is not the habit of the appellate court, in civil cases, to reverse judgments on this account, unless fully satisfied that prejudicial error has occurred.</p> <p>3, An objection to the admission of a contract in evidence as unconscionable and void upon its face can have no force if it has been voluntarily performed by the objecting party; such objection going to the merits of the case, if such performance is shown to have been forced and under duress.</p> <p>4. The courts in this State can give no relief to one who has freely, and of his own accord,, fulfilled a usurious contract.</p>

<p>Statute of limitations — Aelcnowledgment of indebtedness.</p> <p>A debtor, being applied to to pay an open account which would soon outlaw, asked for four months’ time in which to procure proof of certain alleged offsets, which was granted on her signing on the creditors’ book the following writing, properly dated: “I extend this book-account four months from April 30, 1886.”</p> <p>Held, equivalent to an acknowledgment of the validity of the account, and that it would mature in four months.</p>

<p>Replevin — Description of property — Certiorari.</p> <p>A justice of the peace quashed a writ of replevin, with judgment for a return of the property, described in the writ as “ one sewing-machine and one pool-table,” on the ground that said description was insufficient</p> <p>Held, substantial error, affecting the merits of the case, and reviewable by certiorari, under How. ¡átat. § 7031.</p>

(Mills, J.) Proceedings to recover possession of lands under the forcible detainer act. Plaintiff brings error. The facts are stated in the opinion.

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

<p>Fraudulent conveyances — Evidence—Reference to bank and memorandum books — Husband and wife — Statements of husband —Charge to jury — Directing verdict.</p> <p>1. In a case involving the validity of a mortgage under which plaintiff claimed, and which was assailed as given without consideration, the plaintiff, on cross-examination, was interrogated fully as to what she paid for the mortgage, and the dates and amount of such payments, and the money received by her, and who from, and on redirect her counsel sought to introduce her bank-book for the purpose of showing the receipt by her of the money, and the dates, and also a book containing a statement of the amount of money she had paid, which books were excluded by the court.</p> <p>Held, that both books were admissible for the purpose offered, and should have been received.</p> <p>'2. It does not necessarily follow that vendors who sold and shipped goods to a mortgagor with notice of such incumbrance are precluded from attacking it as given in fraud of their rights, or for the purpose of defrauding them.</p> <p>3. A wife cannot be bound by the unauthorized statement of her husband regarding her separate property; but where she claims title to such property under a contract from him, alleged to be fraudulent as to his creditors, whatever he did or said tending to show such fraudulent character is proper testimony, if brought to the knowledge of the wife.</p> <p>4. The statement by the court, in his charge, that a conversation took place between certain parties, is not error, the fact being undisputed.</p> <p>5. A debtor may always give a bona fide security for any claim against him.</p> <p>■6. It is grave error for the trial court, in his charge to the jury, to say, “I never take a case from the jury unless counsel request it,” and that the court “ will direct a verdict for the defendants if counsel desire it;” the case being one for the jury upon the facts, and the effect of such statement being not far different from directing such verdict.</p>

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

<p>Shipping — Authority of master of vessel — Necessity.-</p> <p>1. A master of a vessel is the agent of the owner, and as such authorized to act in all matters within the scope of his employment; but where the owner is present, or within easy access, such agency as is founded on necessity disappears, and no necessity can be sufficient if the owner be so near that the master is not obliged to act without instructions.</p> <p>2. It is within the ordinary scope Of the employment of the master of a barge navigating the Great Lakes to enter into an agreement for towage of his vessel to the port of its destination; and if the vessel becomes water-logged at sea, or otherwise in extremity or peril, he has authority to and may do whatever in the emergency becomes necessary for the safety and protection of his ship and cargo which a reasonable man would be required • to do under the circumstances.</p> <p>8. The master of a vessel laden with lumber, sunk at the dock and not in a navigable condition, the owner of both vessel and cargo being close at hand and within easy telegraphic communication, has no authority to contract for the towage of the vessel and Cargo to a distant port; such voyage being attended with great peril, and the price agreed to be paid being exorbitant, when compared with the value and price of towage for vessels in a navigable condition.</p>

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

(Mills, J., presiding.) Bill filed to set aside a note and mortgage executed by a married woman to secure her husband’s debt. Defendants Andrews and Kellogg appeal. The facts are stated in the opinion.

<p>Deed — Description—Recording laws — Good-faith purchaser.</p> <p>1. The conveyances under which defendants sought to show title were held void for want of a sufficient and certain description of the premises, and the judgment in favor of plaintiff was affirmed.</p> <p>2. A mortgagee, in order to protect himself in making examination of the records (the land being vacant), need only make search in the records of such conveyances as the mortgagor has given, and those under whom he claimed, and cannot be affected by any adverse claims not appearing in those instruments.</p>

(Mills, J.) Petition by creditor to compel assignees to make proper dividend. Assignees appeal. The facts are stated in the opinion.

(Newton, J.) Assumpsit on appeal-bond given under forcible detainer act. Plaintiff brings error. The facts are stated in the opinion.

<p>Error to Kalamazoo. (Pealer, J., presiding.)</p> <p>Keplevin. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Kalamazoo. (Pealer, J., presiding.)</p> <p>Bill filed by the assignees of an insolvent debtor to foreclose a mortgage assigned to them by the mortgagee on payment of the mortgage debt, for which the debtor was personally liable.</p> <p>Complainants appeal.</p> <p>The facts are stated in the opinion.</p>

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

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

<p>Appeal from. Lapeer. (Stickney, J.)</p> <p>Bill for specific performance of land contract. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Boseommon. (Fallass, J.)</p> <p>Suit in garnishment. Garnishee brings error.</p> <p>The facts are stated in the opinion.</p>

(Speed, J.) [Case tried before Chip-man, J., in superior court of Detroit, and bill of exceptions settled by Speed, J., by virtue of the statute.] Case. Plaintiffs bring error. The facts are stated in the opinion.

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

<p>Foreclosure of mortgage — Report of amount due — Rents and profits.</p> <p>In this case the decree of the court below is affirmed, as also its action in denying motion of defendant to set aside the report of the commissioner of the amount due on the notes and mortgage. For a full understanding of the points involved, see opinion, and report of case in 61 Mich. 85.</p>

<p>Municipal corporations — Negligence—Liability—Defective plan of work.</p> <p>1. Where the plan, adopted by a municipal corporation in constructing a public improvement must necessarily cause an injury to private property equivalent tD some appropriation of the enjoyment thereof to which the owner is entitled, the municipality is liable; but where the fault found is with the wisdom of the measure, or its sufficiency or adaptability to carry out or accomplish the purpose intended, and where its construction according to the plan adopted invades no private rights, the municipality is not liable. Detroit v. Beckman, 34 Mich. 125; Ashley v. Port Huron, 35 Id. 296.</p> <p>2. The declaration in this case is held to state a cause of action, and the demurrer is overruled.</p> <p>3. In the case of Dermot v. Detroit, 4 Mich. 435, it was held that the defendant was not liable, at the suit of a private individual, for damages arising from the insufficiency or defective construction of its public sewers, when such damage resulted directly to the party injured from his use and occupation of the same for his private advantage and convenience; but it was intimated that had the damage happened directly in consequence of defendant’s want of prudence or shill in the construction of its sewers, the case would have merited a very different consideration.</p>

<p>■Common carriers — Bill of lading — Perishable goods — Evidence— Common-law liability.</p> <p>1. In this case, the judgment being affirmed by an equal division of the Court, nothing is decided.</p> <p>U. Morse, J., filed an affirmative opinion, concurred in by Sherwood, J., holding:</p> <p>a — That the shipping receipt of the Chicago & Grand Trunk Railway Company, introduced in evidence, providing that the eggs shipped should be at the owner’s risk, was irrelevant to the case, and’ that defendant must bo held to have received the property as a common carrier, without any limitation or conditions as to its liability, save such as the law creates and imposes.</p> <p>' b — That, on removing the eggs from the car at Buffalo, defendant became liable as a warehouseman, and was bound to exercise common and ordinary prudence in storing them; and that, if the building in which they were stored was not a proper place for such storage in the winter time, the defendant was guilty of negligence, and liable in damages.</p> <p>c — That it was immaterial to the issue to show that railroad companies, both in Buffalo and Michigan, generally have and use warehouses which are not a protection to perishable property against freezing, and they do not undertake to give such protection to property in their warehouses.</p> <p>3. Campbell, O. J., filed an opinion, concurred in by Champlin, J., favoring a reversal, and holding:</p> <p>a — That the way-bill on which the eggs were shipped from Flint provided expressly that they should be at the owner’s risk, and that the terms of a bill of lading may apply all through where taken by separate carriers, and will do so if such was the intention, which is a question for the jury.</p> <p>5 — That it would be an oppressive and unreasonable requirement to compel railroad companies to keep out of use their special cars, or any of them, to wait the convenience or caprice of consignees, and that in this case the delay of the consignee in removing the property .cut off any right of recovery whatever, being not only contributory but decisive, negligence.</p> <p>c — That no authority has been shown requiring defendant to build a warehouse with safeguards against destruction of such very perishable articles by extreme cold, and that the court erroneously refused to allow it to show that the warehouse in question compared favorably with those in general use by ware-housemen, of which courts must be supposed to possess the usual knowledge; and that it cannot be considered wrong for transportation companies to use what is generally considered suitable.</p>

<p>Sheriffs — Neglect to file notice of attachment — Assignment for benefit of creditors — Bond of assignee — Equity of redemption — Charge to jury.</p> <p>1. A sheriff who receives a writ of attachment at one o’clock in the morning, with directions to levy upon real estate known to him, he being then at the county-seat of the county in which the land lies, where he remains long enough to have made such levy and filed the statutory notice, and then goes to a town 22 miles distant for the purpose of attaching personal property, where he levies on said land sometime in the afternoon, prior to which time, and after he leaves the county-seat, the d ebtors execute a mortgage on .the land, which is placed on record, whereby the plaintiff fails to collect anything on the judgment rendered in his favor in said attachment suit, is liable upon his official bond for the damages sustained by the plaintiff through his negligence. 1 »</p> <p>2. An assignment for the benefit of creditors is ineffectual to convey title to the assignee until the bond required by How. Stat. § 8739, is filed with and approved by the clerk of the circuit court. Beard v. Clippert, 63 Mich. 718, 719.</p> <p>3. Creditors have the right to attach the equity of redemption of their debtor in land mortgaged by him; and, in a suit against a sheriff for failing to execute such writ, he cannot defend by showing that the interest of the debtor has been cut off by foreclosure proceedings under said mortgage.</p> <p>4. For a statement of the law regulating the action of a sheriff in serving a writ of attachment, as far as diligence is concerned, see plaintiff’s requests on pages 368-370 of opinion, which the Court hold should have been given to the jury.</p> <p>6. It is mischievous error for the trial judge to give undue prominence to portions of the testimony in a case in his charge to the jury.</p>

<p>Settlement — Evidence—Burden of proof.</p> <p>1. It is always competent to show, by any relevant testimony, what’ items enter into a settlement, when one sued for is claimed to be barred by the settlement.</p> <p>2. Receipts in full are not conclusive upon the parties to a settlement. Vyne v. Glenn, 41 Mich. 114 ; McAllister v. Engle, 52 Id. 56.</p> <p>3. Rules of law, as well as those in equity, must be so used and applied as to maintain and protect the rights of parties, and not subvert and destroy them.</p> <p>4 Where a note was given by third parties on a compromise between other parties of pending litigation, the extent of which was afterwards in issue in a suit on another claim claimed not to be covered by such compromise, evidence of what was done with the note, and its present whereabouts, is irrelevant, having no bearing upon the material questions in the case.</p> <p>5. In a case involving the extent of a settlement between two -firms, a receipt in full, given by the plaintiffs to one of the defendant copartners on a settlement of matters arising before he became a member of the defendant company, is incompetent evidence, it not being pretended that it was considered or was present at the settlement in issue.</p> <p>8. A full understanding of the remaining points decided demands an examination of the opinion, to which reference is had.</p>

<p>Negligence — Intoxication of person injured — Preponderance of evidence.</p> <p>1. A man cannot voluntarily place himself in a condition whereby he loses such control of his brain or muscles as a man of ordinary-prudence and caution in the full possession of his faculties would exercise, and thereby contribute to an injury to himself, and then require of one ignorant of his condition recompense therefor.</p> <p>2. Where, on the trial of a suit by a passenger against a railway company for injuries sustained in leaving the train by reason, as alleged, of the negligence of the company in not giving sufficient time for that purpose, the evidence discloses that the plaintiff had drank more or less intoxicating liquor before taking passage, the jury should have been instructed that, if such drinking contributed at all to such injury, the plaintiff could not recover.</p> <p>3. In such a case, in the absence of knowledge on the part of the defendant’s employes of such drinking, they are only bound to use toward the plaintiff the care and prudence that a sober man would require for his safety.</p> <p>4. “ Preponderance of evidence” is correctly defined to be “ such evidence as, when weighed with that which is offered to oppose it, has more convincing power in the minds of the jury. It is not a technical term at all, but means simply that evidence which outweighs that which is offered to oppose it. It does not necessarily mean that a greater number of witnesses shall be produced on the one side or the other, but that, upon the whole evidence, the jury believe the greater probability of the truth to be upon the side of the party having the affirmative of the issue.”</p>

<p>Land contract — Rescission—Recovery of payments and for improvements.</p> <p>'On the rescission by a vendor of a land contract containing no forfeiture clause, the vendee? can recover the payments made thereon, and the reasonable value of his improvements made in good faith while in possession under the contract, less the use of the premises while in such possession. Davis v. Strobridge, 44 Mich. 157.</p>

<p>Cross-action — Set-off—Recoupment—Costs—Res judicata. ■</p> <p>1. A cross-action has always been allowed, both at common law and under the statute, in cases where recoupment may be proper; and where the defendant refuss s to recoup, he may bring his action, and, if he prevails, will be allowed his costs. How. Stat. §§ 6876, 6887, 6889; Ward v. Willson, 3 Mich. 1; Ward v. Fetters, Id. 282; Allen v. McKibbin, 5 Id. 449, 456; Platt v. Brand, 26 Id. 137; Huntoon v. Russell, 41 Id. 316; Chandler v. Childs, 42 Id. 128.</p> <p>2. In case a party neglects to set off a claim when he has an opportunity to do so, he does not thereby preclude himself from recovering his demand, but he will not be allowed any costs in a suit to enforce such claim.</p> <p>3. A plaintiff is not estopped from prosecuting a suit for work and labor by reason of the payment of a judgment recovered against him by defendant, pending such suit, for damages for the improper performance of the work and labor sued for; the claim not being res judicata, in one ease the action sounding in tort, and the other in assumpsit.</p>

<p>Negligence — Measure of damages — Life tables — Present worth of probable contributions.</p> <p>1. In this case the charge of the court on the question of damages is held to have been misleading, for reasons stated in the opinion, and tjhe verdict excessive in any view of the testimony.</p> <p>3. How. Stat. § 3393, authorizes the jury, in ■ cases arising under it, to give such amount of damages as they shall deem fair and just to the persons who may be entitled to the same when recovered; but they are not warranted in giving damages not founded upon the testimony, or beyond the measure of compensation for the injury inflicted, or founded upon their fancy, or based upon visionary estimates of probabilities or chances, and it has been held, with rare exceptions, that they must be confined to those damages which are capable of being measured by a pecuniary standard. Cooper v. Lake Shore & M. S. Ry. Co., 66 Mich. 261.</p>

<p>Statute of frauds — Verbal contract of sale.</p> <p>An executory verbal contract for the purchase of goods falling within the statute of frauds is not validated by a written order for their delivery — afterwards countermanded — not showing what the contract was, nor conveying any Information except by reference to the verbal agreement, and having none of the requisites of a definite agreement. James v. Muir, 33 Mich. 323.</p>

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

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

Mandamus. Delator applies for mandamus to compel tbe payment of moneys claimed to be due it from respondent. Tbe facts are stated in tbe opinion.

<p>Landlord and tenant — Forcible detainer — Tenancy at will.</p> <p>1. Authority from the owner to a tenant to move upon land, with a statement that he could have all the crops he could raise, and could “live there as long as he had a mind to,” creates a tenancy at will between the parties.</p> <p>3. A tenant peaceably in possession, who uses no force and threatens none, but refuses to leave until obliged to by the law, is not guilty of a forcible detainer of the leased premises.</p>

<p>Fraudulent sale — Evidence—Proof of subsequent transactions.</p> <p>1. Fraud is seldom capable of direct proof. It must be established by facts and circumstances taken together, and the natural inferences to be drawn therefrom, which will satisfy the ordinary unbiased man, either as a juror, or outside the jury-box, that it exists.</p> <p>2. Defendants Miner and Agnew, who had been engaged in the mercantile business as copartners in C orunna, removed to Detroit, where they formed a copartnership with one Kirby, and engaged in the retail grocery trade under the firm name of Kirby, Miner & Agnew. The new firm purchased a bill of goods of plaintiffs, and soon thereafter was dissolved by Kirby’s withdrawal; Miner and Agnew assuming the firm debts, who mortgaged the entire stock to one Nichols to secure an alleged indebtedness, $1,700 of which existed before they came to Detroit. On the same day they made an assignment for the benefit of their creditors, and it took all the goods secured since coming to Detroit to pay said $1,700 of the Nichols claim.</p> <p>Held, that it was competent, on the trial of a suit in replevin brought to recover said goods, to show the whole business of Miner and Agnew, as far as it could be done, after they came to Detroit, and up to the t me of the assignment, including the amount of goods purchased on credit, and of whom bought, and whether the vendors had any knowledge of the alleged indebtedness to Nichols; and to follow this line of inquiry by showing what their assets were when they came to Detroit, how much money, if any, they put into the business thereafter, the amount of their sales, and the disposition made of the proceeds, and their assets and liabilities on the day of their failure, — all as tending to show that their business in Detroit was but a scheme to acquire goods with which to liquidate an old debt, even if a valid one, or as rebutting such presumption.</p> <p>3. In such a case, if the goods were bought with the intent never to pay for them, but to swallow them and all their other property by the Nichols mortgage, even though this debt was a valid one, it would be a fraud upon plaintiffs which would avoid the sale, having an equal effect in law (as regards this suit) as if they had made false and fraudulent representations as to their financial standing at the time of such purchase.</p>

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

(Judkins, J.) Certiorari by land-owner to review judgment of township board on appeal from the action of a highway commissioner in laying out a road. Judgment annulled in the circuit court, and township board brings error. The facts are stated in the Opinion.

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

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

<p>Bills and notes — Surety—Extension of time — Pleading—General issue.</p> <p>.In a suit against two joint makers of a promissory note, evidence that one signed as a surety, and of an agreement to the maker .with the other for an extension of the time of payment, without the consent of the surety, is inadmissible under the general issue.1</p>

<p>Fraud — Equity—Sale ofes ate of minors under probate proceedings.-</p> <p>In this case the finding of the circuit judge on the question of fraud, alleged in complainant’s bill, is not disturbed, and the decree is affirmed.</p>

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

<p>State road — Failure to keep in repair — Liability of township — Injury to traveler on Sunday.</p> <p>1. A Stats road, built upon the division line of two townships, and, by a verbal agreement made by the highway commissioners under How. Stat. § 1807, divided and allotted to the several townships to keep in repair, which agreement has been acted upon for more than 20 years, is within the jurisdiction of said townships, each of which is liable for any injury received by travelers, without their fault, in consequence of its neglect to keep the portion allotted to it in good repair.</p> <p>2. A person has the right to travel on a public highway on Sunday for any lawful purpose, and the township charged with the duty of keeping such highway in repair is liable for injuries received under such circumstances, the same as if received on a weekday.</p>

<p>Purchase of goods after death of owner — Executor de son tort — Individual doing business under firm name — Trover.</p> <p>1. On the facts stated in the opinion the judgment below is affirmed, Sherwood, J., holding:</p> <p>a — A purchaser of goods at an auction sale held on the day of the death of the owner, who was doing business under a firm name, but who had no partner, which goods were not set apart nor delivered to the purchaser, who a day or two afterwards purchased other goods from the clerks of said deceased, which were delivered to the vendee, who paid for them by check to the bookkeeper of the deceased, who turned it over to his widow, is liable to the special administrator of the estate of said deceased for the value of said goods, including those held for sale on commission, the owners having proved claims therefor against the estate.</p> <p>b — In the absence of a prohibitive statute, the use of a name or an abbreviation to do business under, other than that of the individual, raises ho necessary presumption that he has a partner, or that such title includes more than one person.</p> <p>2. Champlin and Morse, JJ., concurred in affirming the judgment.</p>

<p>Sawing contract — Damages—Loss of profits.</p> <p>Where the sole claim for damages made by plaintiffs was for the loss of profits under a sawing contract by reason of the failure of the defendant to deliver the logs, a verdict was properly directed for the defendant.1</p>

<p>Boundary line — Acquiescence—Estoppel—Statute of frauds.</p> <p>1. Where parties by mutual agreement, and for that express purpose, meet and fix a boundary line, and thereafter acquiesce in the line so established between them, such line will be considered the true division line, notwithstanding the period of such acquiescence falls short of the time fixed by the statute of limitations for gaining title by adverse possession.* 1 Smith v. Hamilton, 20 Mich. 433; Joyce v. Williams, 26 Id. 332; Stewart v. Carleton, 31 Id. 270; Dupont v. Starring, 42 Id. 492.</p> <p>2. Where, owing to the ambiguity of the description in deeds executed by tenants in common of land on partition, it is necessary to settle the meaning of said deeds as to the location of the division line in court, the owners are authorized to meet and agree where the boundary line should be; and a parol agreement, under such circumstances, will operate as an estoppel, if acquiesced in for years, the enforcement of which will not be prevented by the statute of frauds.</p>

<p>Error to recorder’s court of the city of Detroit. (Swift, J.)</p> <p>Information for robbery.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal law — Impaneling jury — Challenge to array — Documentary evidence — Statements of respondent — Proceedings before coroner's jury — Homidde—Self-defense—Charge to jury.</p> <p>1. An order for the drawing and summoning of a jury according to law, made under How. Stat. § 7578,1 is, in effect, an order that such jurors be drawn from the county at large, as specified and directed by the statute.</p> <p>2. The objection to the jury drawn in People v. Hall, 48 Mich. 487, was that they were neither a jury of the vicinage nor a jury of the county at large, nor one desired by the judge himself for the general purposes of the term, and therefore not sanctioned by law.</p> <p>8. 'i he arbitrary omission of certain townships in drawing and summoning a jury is good ground for quashing the array.</p> <p>4. The burden of proof is on the respondent who challenges the array to show the invalidity of the proceedings by which the jury was obtained, and, in the absence of a contrary showing, it must be presumed that the officers drawing such jury faithfully and correctly performed that duty.</p> <p>6. Where documentary evidence is excluded by the court, or a portion is admitted, and the claim is that the whole should have b°en introduced, such excluded evidence, or the portion not introduced, should be made a. part of the bill of exceptions, to enable the appellate court to judge of its admissibility.</p> <p>6. On the trial of a respondent for homicide, a witness testified to respondent’s reading a newspaper account of the transaction, and to his admitting it to be correct, except in one or two particulars; and the prosecuting attorney was permitted to introduce in evidence a portion of the article, purporting to be a statement of the circumstances of the case as taken from the evidence of the respondent at the coroner’s inquest, against the objection of the respondent that the whole should be introduced, or none.</p> <p>Held, that, if the entire article had not been made a part of the manuscript bill of exceptions, the conviction should be reversed; but as a perusal of it showed that the admission of the excluded portion would have prejudiced the respondent, he cannot complain.</p> <p>7. The proceedings before, and verdict of, a coroner’s jury, including the testimony of a party charged with the homicide, is inadmissible in his behalf on his trial, for the purpose of showing that his testimony agreed on both occasions, and that the coroner’s jury found that the shooting was d me in self-defense.</p> <p>8. The following instructions to the jury, in a homicide case, on the subject of self-defense, are approved by the Court.</p> <p>a — One assailed in his dwelling-house is not obliged to flee therefrom, but is authorizedto repel force by force, and protect himself and house from intrusion; and if in the reasonable exercise of his right of self defense, as appeared to him at the .time, he kills his assailant, the killing will be justifiable homicide.</p> <p>b — The burden of proof is upon the prosecution to satisfy the jury, beyond a reasonable doubt, that the killing was not in self-defense, and that no reasonable belief existed in respondent’s mind at the time that he was in great bodily danger, as the facts and circumstances then appeared to him.</p> <p>9. It is error for the court to instruct the jury what the testimony tends to prove, without in the same connection submitting to them the question of its credibility. Davis v. Gerber, 69 Mich.— (87 N. W. Rep. 284, 285.)</p>

(Mills, J.) Kespondent was convicted in the recorder’s court of furnishing intoxicating liquor to a minor, and sentenced to the State house of correction at Ionia, which judgment was affirmed on certiorari in the circuit court. The facts are stated in the opinion.

Exceptions before judgment from Livingston. (Newton, J.) Respondent was convicted of resisting an officer. The facts are stated in the opinion.

(Howell, J.) Information for receiving stolen property, etc. Kespondent was convicted on his plea of guilty. The facts are stated in the opinion.

(Swift, J.) Respondent was convicted of selling beer of her own manufacture, at retail, without paying a tax as a retail or wholesale and retail dealer. The facts are stated in the opinion.

<p>Statute of frauds — Representations as to value of corporate stock— Evidence.</p> <p>1. How. Stat. § 6188, requiring representations concerning the character, etc., of any other person to be in writing, does not apply to representations made by a stockholder in a manufacturing company on the sale of his stock as to its value, though such representations applied as well to the property of the corporation ashis own.</p> <p>2. The price brought by the real estate of a manufacturing corporation on a foreclosure sale, a year after it had suspended business, is no evidence of its value three years before, when the business was in full operation.</p>

Joseph. (Pealer, J.) Bill to foreclose a mortgage. Complainant appeals from decree dismissing bill. The facts are stated in the opinion.

(Speed, J.) Bill to enforce trusts under assignment by appointment of receiver, etc., and petition by mortgagee for payment of her mortgage. Appeal by receiver from order directing payment of mortgage debt. The facts are stated in the opinion.

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

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

<p>Insurance — Surrender of policy to agent — Action to recover pre- * miums.</p> <p>An insurance company which takes up a policy on the ground that it was issued without an examination of the insured by a physician, and whose agent promised the beneficiary, who had paid all premiums and assessments in good faith up to that date, and who was in no way responsible for such non-examination, to repay the moneys paid or return the policy, is liable in assumpsit for the same to such beneficiary on failure to perform said agreement.</p>

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

<p>Criminal law — Burglary—Evidence—Exclusion of witness from court-room.</p> <p>1. On the trial of a respondent for burglary, the prosecution was permitted to prove t>iat he was seen about a week before the commission of the crime in company with a party who was after-wards convicted of the same offense, and with whom he roomed before and after the burglary, and in whose company he was last seen on the evening of its commission.</p> <p>Held, that the evidence was properly admitted.</p> <p>3. The exclusion of a witness for the people from the court-room during the examination of other witnesses is a matter entirely within the discretion of the court.</p> <p>3. The testimony of an officer who arrested a respondent charged with burglary as to what occurred at the time, and of the resistance of the respondent, held properly admitted on the trial of the case.</p>

Exceptions before judgment from Ottawa. (Arnold, J.) Respondent was convicted of unlawful fishing in Grand river. The facts are stated in the opinion.

<p>Error to Ionia. (Smith, J.)</p> <p>Respondent was convicted of criminal libel.</p> <p>The facts are stated in the opinion.</p>

(Speed, J.) Judgment of the circuit court, disallowing charge by executor for money advanced by a husband to pay his wife’s funeral expenses, affirmed. The facts are stated in the opinion.

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

<p>Landlord and tenant — Neglect of lessor to observe covenant to repair —Abandonment of premises — Suspension of rent — Damages.</p> <p>1. The neglect of the lessor of a water-power saw-mill to keep the flumes in repair pursuant to the covenants in the lease, by reason of which neglect the mill is rendered useless to the lessees, justifies them in abandoning the leased premises, and bars the after recovery of rent.</p> <p>2. In such a case it is not the duty of the lessees to make the necessary repairs, and they have the right to recover of the lessor the damages resulting from his failure so to do, which are measured by the difference in the value of the use of the mill if the repairs had been seasonably made, and such value without such repairs.</p>

<p>Impaneling jury — Rejection of disqualified jurors by court — Peremp- • tory challenge.</p> <p>1. A circuit judge has authority, at any time before the jury is sworn, to excuse any person from the panel who is disqualified to sit as a juror.</p> <p>So held, where after a plaintiff has exhausted his peremptory challenges a member of the panel informed the court that he did not think he had sufficient knowledge of the English language to qualify him to sit as a juror, and requested to be excused, and after examination by the court and counsel he was excused, against the objection of plaintiff’s counsel.</p> <p>2. Peremptory challenges are given in civil cases, by the statute as a matter of favor, and are exercised in the rejection of qualified jurors.</p>

<p>Error to Marquette. (Grant, J.)</p> <p>Assumpsit. Defendant bring error.</p> <p>The facts are stated in the opinion, and in 64 Mich. 220.</p>

<p>Pleading — Common counts — Lands sold and conveyed — Statute of frauds.</p> <p>1. It has not generally been understood in Michigan that the common counts, as used in our practice and pleading, include a count for real property sold and conveyed.</p> <p>2. Pleadings in justice’s court have always been liberally construed, and substance rather than form has been regarded in passing upon them.</p> <p>3. The chief object of a declaration is to fairly apprise the opposite party of the cause of action and claim of the plaintiff, and when this is clearly done, and a cause of action is stated, the pleading is sufficient.</p> <p>4. A bill of particulars is explanatory of the declaration, and an amplification of it.</p> <p>5. The indebitatus count includes a count for real property sold, and such count was used to recover the price of an estate sold by the plaintiff to the defendant, as laid down in 1 Chitty, PI. (16th Amer. ed.) 351, 352, 354; and it has been held in many cases that, where the agreement to pay the price of the land was to pay the same in money, such price could be recovered under a general count for lands sold and conveyed (see authorities cited in opinion, p. 575).</p> <p>6. Under a declaration upon all of the common counts in assumpsit, amplified by a bill of part culars claiming, among other things, for the balance of the purchase price of a parcel of land, specifically described, sold by plaintiff to defendant, the plaintiff can proceed on the trial the same as if he had specifically named a count for lands sold and conveyed as one of the common counts, or had counted generally for lands sold and conveyed.</p> <p>7. When some speeifle thing is to be delivered in payment for lands, the agreement to so deliver, and the breach, must be specially pleaded; but when a special contract has been wholly performed by one of the parties, and the other can only perform his part by the payment of money, the money then due can be recovered upon the common counts in assumpsit,</p> <p>8. Where a portion of the purchase price of land conveyed to the vendee consisted of real estate agreed to be conveyed to the vendor, which agreement the vendee refused to perform, but retained the land so conveyed,—</p> <p>Held, that, although the agreement of the vendee was void under the statute of frauds, yet his refusal to perform it had the effect to rescind the contract, and raised an implied promise to pay for what he had received upon it.</p>

<p>Contract for sale of bride — Construction.</p> <p>A contract for the sale of all the brick in a specified kiln, to the amount of about 530,000, for the consideration of $3.75 per thousand, $1,000 payable on delivery of agreement, and the balance, $1.75 per thousand, as brick are delivered, is a contract for the sale of 500,000 brick.</p>

(Arnold, J.) Assumpsit to recover money paid on land contracts. Plaintiff brings error. The facts are stated in the opinion, and in Dickinson v. Wright, 56 Mich. 42.

(Arnold, J.) Assumpsit to recover money paid on land contracts. Defendants bring error. The facts are stated in the opinion.

<p>Schools and school districts — Detaching territory from district— Notice of meeting of inspectors — Consolidation of districts.</p> <p>1, A township board of school inspectors may under one notice, and at one meeting, by separate action, detach lands from separate school districts and attach them to one district.</p> <p>2. Where the action of a board of school inspectors in detaching territory from a cli trict, without the consent of a majority of the resident tax-payers, and attaching it to another district, left land enough in the former for school purposes, they may afterwards consolidate such remaining territory, with the consent of its remaining resident tax-payers, with any other district which gives a like consent.</p>

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

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

<p>Fraud — Replevin—Tender to defendant before suit.</p> <p>A. woman who has been induced through fraud to give a bill of sale of her property, supposing it to be an agreement, and on discovery of the deception practiced brings replevin, and on the trial for the first time ascertains that the defendant has conveyed to her a parcel of land, as he claims, in part payment for the property, and assumed and paid a mortcage thereon in payment of the balance of the purchase price, which claim she denies, and tenders the defendant a deed of the land, and the jury find in her favor on the facts stated,—</p> <p>Held, that upon her theory she was not obliged to reconvey the land nor repay the money before bringing said suit.</p>

<p>Appeal froin Macomb. (Stevens, J.)</p> <p>Bill to foreclose a mortgage.</p> <p>The facts are stated in the opinion.</p>

<p>Mandamus to compel the allowance of an account for serving a requisition.</p> <p>Tbe facts are stated in the opinion.</p>

(Fuller, J.) Bill for divorce and alimony. Defendant appeals from decree granting divorce with $6,000 alimony. The facts are stated in the opinion.

<p>Fraudulent conveyances — Sale—Chattel mortgage — Change of possession — Delivery—Property in hands of third person — Statute of frauds — Warehouseman,</p> <p>1. In the absence of immediate delivery and actual and continued change of possession on an actual sale of personal property, such sale is presumptively fraudulent as to creditors, which presumption becomes absolute, unless the purchaser makes it appear that it was made in good faith, and without any intent to defraud creditors.</p> <p>2. A mortgage, or bill of sale intended as security, of personal property, where there is no immediate d livery and actual and continued change of possession, is absolutely void as to creditors who have obtained liens thereon, or who become such after the giving of the security, unless such conveyance is filed in the proper office, regardless of any question of good faith or honest intent.</p> <p>3. The delivery of personal property required by the statute of frauds must be such as the articles are capable of, and, if in the possession of an agent, he must be notified of the sale, and, unless he consents to act as the agent of the purchaser, the property ought to be actually taken possession of by such vendee (Sheldon v. Warner, 26 Mich. 403; Carpenter v. Graham, 42 Id. 191); but, in case of the agent’s non-consent and retention of possession, he will become the vendee’s agent by operation of law (Hodges v. Hurd, 47 Ill. 363).</p> <p>4. The statement that a sale or the mortgaging of goods in the hands of a third person is good without actual delivery refers to cases where such possession is adverse, so that no better delivery can be made.</p> <p>5. A warehouseman with whom personal property is stored at time of its sale is, in one sense, the vendor’s agent, and to constitute a change of possission he must at least be notified of the sale, and will thereafter hold possession for the purchaser.</p>

<p>Negligence — Duty of railroad company to employés — Plan of bridge —Assumption of risks.</p> <p>1. In this case, upon a review of the testimony (see opinion), the negligence of the plaintiff’s intestate is held by Sherwood and Champlin, JJ., to preclude á recovery, Morse, J., reserving his opinion; but all concur in holding that the negligence of the defendant is not shown by the evidence.</p> <p>2. A railroad company cannot be required to remove a bridge which is without fault in its plan or defect in its structure, while in good repair and safe for the passage of trains, simply because some engineer pronounces it not as good and convenient as some other kind.</p> <p>3. As between it and its employés, it is the duty of a railroad company to provide a reasonably safe track and equipments; but this does not oblige it to make use of the latest improvements, nor to change the structures upon its road so as to conform to the most recent or advanced ideas upon such subjects, nor does “good ' railroading ” require such action.</p> <p>4. While it is the duty of a railroad company to furnish sufficient and safe material, machinery, and other means by which the work of its employés is to be performed, and to keep the same in good repair, and their contract of hiring implies adequate provision against negligence on its part in these respects, the employé assumes all of the risks and perils usually incident to his employment, among which are such as it is his duty to take knowledge of by observation.</p>

Joseph. (Pealer, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion, and in the former report of the case, found in 61 Mich. 90.

Case made from Berrien. (Smith, J.) Assumpsit for taxes claimed to have been illegally assessed. Defendant brings error. The facts are stated in the opinion.

<p>Error to Marquette. (Grant, J.)</p> <p>Assumpsit for rent. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Delta. (G'nnt, J.)</p> <p>Replevin. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

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

<p>Evidence — Copy of contract</p> <p>In the absence of proof of the loss of the original, or its destruction, or that it is not within the jurisdiction of the court, a copy of a land contract offered in evidence is properly excluded.</p>

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

<p>Error to Huron. (Beach, J.)</p> <p>Assumpsit on insurance policy. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>