Volume 68 — Michigan Reports

(Judkins, J.) Bill filed to dissolve a partnership, and for an accounting, and the specific performance of the partnership agreement as to the conveyance of the joint real estate. Defendant appeals. The facts are stated in the opinion.

<p>Taxes — Ejectment—Evidence—Right to question validity of tax title —Unauthorized levy — Void sale.</p> <p>1. A non-owner, but in peaceable possession, of land, conveyed it by warranty deed, and his grantee succeeded to such possession, and held it at the time of the commencement of an ejectment suit against him by the owner of tax titles, after which defendant’s grantor acquired the original government title.</p> <p>Held, that the defendant could contest the validity of said tax titles.1</p> <p>2. An excess Of $25 in the township tax legally assessable for a given year will invalidate the sale of land upon which any portion of such excess was levied.2</p> <p>3. Taxes assessed to p ly orders drawn by a township clerk for repairing a bridge are illegal, where the record fails to show that any such expenditure was ever authorized by the electors, or township board, or commissioner of highways, or that that officer ever determined that the public interests and convenience required the making of such repairs, or that the bridge ought to be built, or that he ever made a personal examination of the same; it further appearing that he never furnished the clerk with the statutory statement of the amount of orders to be drawn for such purpose.</p>

<p>Appeal from Ottawa. (Arnold, J.)</p> <p>Bill for partnership 'accounting. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Highways — Discontinuance—Jurisdiction of commissioner — Notice of hearing — Adjournment.</p> <p>1. In proceedings for laying out or discontinuing highways, the record must show affirmatively that the requirements óf thestatute have been complied with, and the jurisdiction of the commissioner.</p> <p>2. When the hearing of an application for the discontinuance of a highway was adjourned by the commissioner for twenty days, no action can be legally taken until the adjourned day.</p> <p>S, Ten full days’ notice must be given of the hearing of an application to discontinue a highway.1</p>

(Smith, J.) Bill filed to rectify a deed so as to express the true consideration, and for the discharge of a mortgage. . Defendant appeals irom a decree granting the relief prayed for. The facts are stated in the opinion.

<p>Error to Clinton. (Smith, J.)</p> <p>Debt on judgment. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

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

Clair, (Stevens, J.) Bill filed to foreclose a mortgage, alleged to have been discharged by mistake. Complainant appeals from decree dis- missing bill. The facts are stated in the opinion.

<p>Logs and logging — Negligence—Injury to reparian owner — Evidence-—Land contract — Right of navigation.</p> <p>1. Evidence that a booming company had possession of a river in which its men were running logs, which jammed below the land of a riparian owner, and that the company continued running logs against said jam until it extended and filled the river above said land, where it remained for about one month, is sufficient, if unexplained, to make out a prima facie case of negligence; and it is not necessary for the plaintiff to negative the exercise by the company of reasonable care and dispatch in its work, or to specify in what respect its employés were negligent.</p> <p>2. A vendee in possession of land under a paid-up contract, and entitled to a deed, has a sufficient title to enable him to recover for hay and pasturage lost through the negligent flooding of the-land by a booming company.</p> <p>3. Under a clause in a land contract giving to the vendors one-half of the proceeds of the hay raised upon the land until the purchase price is paid, the vendee must account in money for the value of the share reserved, but the title to the property and right of possession remain in him.</p> <p>4. In a suit to recover the value of hay lost through the negligent - flooding of plaintiff’s land, evidence of the amount cut during the preceding year is admissible to show the capacity of the land for producing hay.</p> <p>6.The destruction of plaintiff’s pasturage by the negligent flooding of his land is prima facie evidence of damage to the amount of its value.</p> <p>6. A log-owner has the right to use a stream in its natural capacity to float his lumber or timber, and is not responsible for any damage incidentally and without his fault arising therefrom. But he has no right to deal with his logs in such a way, by the formation of jams or otherwise, as to cause the water to overflow the adjoining lands more than it would were the logs left to themselves, and allowed to float down naturally and without artificial interference.</p> <p>7. The Muskegon river has a well-defined channel or bed between well-defined banks or sides ; and the low or bottom lands upon the sides of the stream, that are overflowed more or less in times of high water, are not within its boundaries; and the capacity of said stream cannot be increased by artificial means so as to permit the log-owner to use at all times the full volume of water that may flow therein during unusual and brief freshets.</p> <p>8. The public right of navigation is measured by the capacity of the stream for valuable public use in its natural condition, and any attempt to create capacity at other times at the expense of private interests can be justified only on an assessment and payment of compensation.</p>

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

Case made from Calhoun. (Hooker, J.) Trespass for the removal of a dam alleged to be a nuisance. Plaintiff brings error. The facts are stated in the opinion.

<p>Ejectment — Pleading—General issue — Adverse possession — Charge to jury.</p> <p>1. In an action of ejectment, title by 1 adverse possession may be shown by tbe defendant under a plea of tfte general issue.</p> <p>2. A circuit judge has a right to presume that an ordinary jury has ordinary intelligence, and that the word “ adverse,” in itself, means “hostile and distinct,” when applied to qualify or define a possession of lands.</p>

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

<p>Justices of the peace — Adjournment of cause — Certiorari—Replevin —Failure of sureties on bond to justify.</p> <p>1. In the absence of a specific allegation in an affidavit for certiorari that no showing was made on oath as a basis for an application for an adjournment in justice’s court, if the return shows that the adjournment Was duly appiied for upon showing made, the presumption is that the showing was legally made, and upon sufficient grounds.</p> <p>2. The three months for which a justice of the peace may adjourn a case date from the ret urn-day of the process by which suit was commenced.</p> <p>3. The failure of the sureties in a replevin bond to justify their pecuniary responsibility in writing indorsed on the bond is not a jurisdictional defect, the statute permitting a new bond to be filed where objection is seasonably made.</p>

<p>Landlord and tenant — Lease.</p> <p>The fair construction of a lease for a term of one year from a given date, with the privilege of longer lease, if both parties are suited, for a term of eight years, reserving the right to sell part or all is that the lease should terminate upon a sale of the premises, or, if of a portion of them, as to the part sold.</p>

<p>Negligence — Injury to infant — Contributory negligence.</p> <p>Í. The right of a child to cross a railroad track is accompanied with the duty to use reasonable and at least ordinary care in so doing, his age, experience, and intelligence being taken into consideration with the other circumstances existing at time of his in. jury; and if, after a proper consideration of these things, the jury shall find that the child had sufficient intelligence — and experience if that shall be found necessary — to know of the danger, of the signals and the warnings against it, and the manner in which an injury might be produced by a failure to pbserve such signals and warnings, they are warranted in considering the question of contributory negligence; and if they find that the accident occurred by reason of the failure of the child to observe such warnings and signals and indications of danger, and of his neglect of the duty thereby imposed upon him to avoid the danger, and injury ensues, his negligence will be such as to prevent a recovery therefor.</p> <p>2. Ordinary care has relation to the situation and condition of the parties, and varies according to the exigencies which require vigilence and attention, and, when contributory negligence is sought to be attributed to a child, he can only be held to that degree of care which may reasonably be expected from one under the same conditions, of the same age, sex, intelligence, and judgment.</p> <p>8. In a suit for injuries to a child by a railroad train, where his contributory negligence is a question for the jury under the evidence, it is the province of the jury to judge of his capacity and ability, and the manner in which he used the same on the occasion when the accident occurred, and whether he was of sufficient age and judgment to have used them otherwise, so as to have avoided the calamity which overtook him.</p> <p>4. Under the testimony in this case, the action of the court in leaving it for the jury to say whether or not the evidence satisfied them that the plaintiff had such judgment and compresión as enabled him to appreciate the danger he incurred, and subject him to the consequences of negligence if he failed to use his reason and senses in seeking to avoid it, is sustained.</p>

<p>Findings of fact — Evidence—Account booTcs,</p> <p>1. The findings of fact made by the trial judge cannot be disturbed if there was any evidence to support them.</p> <p>2. Since the statute has made the parties to a suit competent witnesses, they can testify as well to the keeping of their accounts, and the correctness of their books, as to any other facts, and proof by third parties of their having settled according to such books, and that they were correctly kept, is not essential to their introduction in evidence.</p> <p>3. In a suit to recover the price of merchandise claimed to have been sold to defendant, to whom the credit was given, and by his order delivered to a third party, whom he claimed was the real debtor, the plaintiff’s books are competent evidence to show to whom the goods were charged, and the credit given. Larson v. Jensen, 53 Mich. 427.</p>

<p>Contract — Construction — Sale—Agreement that binder will “ do good work and give satisfaction.”</p> <p>1. A cardinal axiom in the construction of a,written contract is that all of its parts must be examined, and effect given to every word and phrase, if practicable.</p> <p>2. The language used, if unambiguous, must be held to express the intention of the parties.</p> <p>8. It is only where the language employed is not free from doubt or uncertainty that resort may be had to the condition of the parties, the subject-matter of the contract, and the circumstances surrounding the transaction and connected therewith, to aid the court in arriving at the intention.</p> <p>4. The written contract relied upon in this case reads as follows:</p> <p>“ We hereby agree to let Peter Ellis have the sample Plano binder, 1885, at the same price that Mr. Rheam has his for, and the binder is to do good work and give satisfaction; and, if not, the said Ellis is to pay for use of same.”</p> <p>Held, that the agreement that the binder was to do good work and give satisfaction embraced independent conditions, and unless the binder gave satisfaction to Mr. Ellis, as well as doing good work, he was not obliged to keep and pay for the machine.</p> <p>Held, further, that a proper construction of the contract clearly brings it within the first class of such contracts referred to in the case of Wood Reaping, ete., Co. v. Smith, 50 Mich. 565, 569, and is governed by the decision in that case.1</p>

(Stickney, J.) Bill filed for partition of real estate, to dissolve a partnership, and for an accounting. Defendant Daniel W. Mitchell appeals. The facts are stated in the opinion.

<p>Error to Tuscola. (Beach, J.)</p> <p>Assumpsit on railroad aid note. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Motion for retaxation of costs.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Wayne. (Speed, J.)</p> <p>Bill of interpleader. Defendant Alice H. Curtis appeals.</p> <p>The facts are stated in the opinion.</p>

(Newton, J.) Case .for injuries received on account of non-repair of bridge. Defendant brings error. The facts am stated in the opinion.

<p>Sale — Passing of title — Chattel mortgage — Constructive notice— Residence,</p> <p>1. On a sale of $3,000 worth of lumber out of any one of three grades, without further designation, marking, or setting apart, to be loaded on the cars as ordered, the title will not pass until the lumber is so loaded.</p> <p>2. A mortgage of all the lumber now on hand at a certain mill, and in transit, belonging to the mortgagors, being the lumber purchased of the mortgagees, is not constructive notice of a lien upon lumber shipped to the mortgagors by the mortgagees, and by them delivered to a third party, after the execution of the mortgage.</p> <p>3. A man’s residence cannot be in one city, and his family occupy a homestead owned by him in another, where he visits them every two weeks and makes his home.</p> <p>4. Under the evidence in this case, defendant’s testator, Hewitt, is held not to have been guilty of any fraud in obtaining the title and possession of the lumber in suit.</p>

<p>Attachment — Affidavit—Joint defendants — Execution—Delay before levy — Ejectment—Homestead.</p> <p>1. An affidavit lor attachment against two defendants, which avers that said defendants (naming them) are justly indebted to the plaintiff, is sufficient to support evidence of a, joint indebtedness, and is a sufficient compliance with the statute.</p> <p>2. A delay of two months in levying an execution, after legally issuable, is not unreasonable, and will not release an attachment levy.</p> <p>3. An equitable title cannot be set up against the legal title in an action of ejectment.</p> <p>4. Where the owner of two city lots supposed she had erected her dwelling-house upon one of them, as did all parties interested, but the building was found to encroach a few inches upon the other lot, which was sold on an execution against her, her homestead rights will be protected, and to that end the supposed division line will be treated as the true one.</p> <p>5. Where the owner of two city lots forming one enclosure, with no visible line of separation, erected a dwelling-house upon both lots, which she occupied as her homestead, and the entire premises did not exceed in value the sum of $1,500, and were used and occupied as one lot, such homestead must be held as embracing both of the so-called lots.</p>

<p>Appeal from superior court of Detroit. (Chipman, J.)</p> <p>Bill filed to secure the discharge of certain mortgages, and for other purposes. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

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

<p>Appeal from Isabella. (Hart, J.)</p> <p>Foreclosure bill. Complainant appeals.</p> <p>The facts áre stated in the opinion.</p>

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

(Hart, J.) Appeal from the allowance of a claim in the circuit court, which had been rejected in the probate court. The facts are stated in the opinion.

(Grant, J.) Trover for the conversion of a quantity of lean iron ore. Defendant brings error. The facts are stated in the opinion.

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

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

<p>Error to Newsaygo. (Fuller, J.)</p> <p>Case for damage to stock by railway company. Defendant brings error.</p> <p>The facts are stated in tbe opinion*</p>

<p>Appeal from Berrien. (Smith, J.)</p> <p>Bill to quiet title. Complainant and defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Statutes — Construction—Prospective operation — Extension of time for collection of taxes.</p> <p>1. It is a sound rule* of construction that legislation is to have a prospective operation only, except where the contrary intent is expressly declared, or is necessarily to be implied from the terms employed.</p> <p>2. Act No. 8, Laws of 1885, extending the time for the collection of taxes, did not revive a tax warrant which had expired by its own limitation prior to said act taking effect.</p>

<p>Equity — Bill to quiet title — Grant of lands — Aeeeptanee—Trust deed —Reversion—Statute of limitations — Laches.</p> <p>1. Where a bill was filed to quiet the title to lands, and dismissed on • general demurrer, prior to Act No. 260, Laws of 1887, taking effect, the Supreme Court may sustain the bill under said amendatory statute, if it states facts entitling the complainant to equitable relief and is properly filed as a bill to quiet title.</p> <p>2. Where land is conveyed upon trusts, and the grantor absolutely divests himself of his title, without any power of revocation, and 30 years have elapsed, and the rights of third parties have intervened, a bill will not lie to revoke said deed for the alleged non-performance of said trusts.</p> <p>3. The law presumes the acceptance of a beneficial grant by the grantee.</p> <p>4. Statutes of limitation will be applied in equity where they would bar the claim at law.</p> <p>So held, where a bill was filed for a forfeiture of a deed for the non-performance of a condition subsequent more than 25 years after such alleged right accrued, during which time the complainants, and those under whom they claimed, had slept upon their rights.</p>

(Smith, J.) Bill to set aside a foreclosure at law and declare a mortgage fully paid, etc. Defendents appeal. The facts are stated in the opinion.

<p>Contract of employment with traveling salesman — Action against employer for refusal to perform — Evidence—Damages.</p> <p>1. In a suit by a traveling salesman to recover damages for the alleged wrongful refusal of a company to furnish him employment for a fixed period and at a stated salary, according to a contract counted upon, to which declaration the defendant pleaded the general issue only, testimony on the part of the company of representations made by the plaintiff of the amount of goods he could sell is not within the pleadings, and therefore incompetent; and testimony of what other agents of the company had done at other times, and under other circumstances, is immaterial, having no tendency to show what ability the plaintiff possessed in the like direction.</p> <p>2, An instruction to a jury, in a suit for damages for an alleged wrongful discharge from employment, that the plaintiff is bound to use diligence in seeking other work, and performing it if found, in which case it should be deducted from or set off against his claim for damages, sufficiently covers a request for an instruction that if the plaintiff obtained such employment, which he voluntarily relinquished, he can only recover for the time subsequent to securing the same the difference between the two contract rates.</p>

<p>Joint defendants — Appeal—Assignment of judgment in payment of attorney fees.</p> <p>Where appeals were taken by one of two defendants from justice’s judgments, and prosecuted by him to final judgment for costs in the circuit court, his co-defendant r-efusing to join in such appeals or bear a share of the expenses attending the' same, a satisfaction of said judgment by said co-defendant, filed in the case, should be set aside, and such costs retaxed in favor of the active appellant, on his motion, it appearing that prior to such satisfaction he had turned the judgment over to his attorneys in payment of their fees.</p>

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

(Speed, J.) Assumpsit for balance alleged to be due on stock subscription. Plaintiff brings error. The facts are stated in the opinion.

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

<p>Contributory negligence — Directing verdict.</p> <p>This case is ruled by the former opinion, and from the plaintiff’s own. testimony he is held to have no right of recovery, and that a verdict was properly directed for the defendant.</p>

<p>Error to Cass. (Smith, J.)</p> <p>Assumpsit for drain tax paid under protest. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

(Jennison, J.) Case for penalty for illegally passing a toll-gate. Defendant brings error. The facts are stated in the opin'on.

(Joslin, J.) Bill filed to restrain the construction of a drain. Complainants appeal from a decree dismissing the bill on a hearing on a demurrer clause in the answer. The facts are stated in the opinion.

(Kinne, J.) Bill filed to restrain the construction of a drain. Complainants appeal from decree dismissing bill. The facts are stated in the opinion.

<p>Application for mandamus to compel respondent to convene, and authorize the assessment of a drain tax.</p> <p>The facts are stated in the opinion.</p>

<p>Bills and notes — Stipulation for payment of attorney's fees— Negotiability.</p> <p>1. A written promise to pay a certain sum of money at a fixed date, “and attorney’s fees,” is not a promissory note.</p> <p>.2. The certainty requisite to the negotiability of an instrument must continue until the obligation is discharged, and any provision which before that time removes such certainty prevents the instrument being negotiable at all.</p>

(Jennison, J.) Bill by tax payer to restrain payment by county treasurer of money allowed a claimant by the board of supervisors. Complainant appeals from a decree dismissing his bill on general demurrer. The facts are stated in the opinion.

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

<p>Error to Berrien. (Smith* J.)</p> <p>Assumpsit. Defendants bring error.</p> <p>The-facts are stated in the opinion.</p>

<p>' Error to Berrien. (O’Hara, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in this and the former opinion.</p>

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

<p>Contract for furnishing saw-mill with logs — Breach—Loss of profits— Measure of damages.</p> <p>1. In a suit by a mill-owner for the non-delivery of logs under a contract for their manufacture, the measure of damages is the difference between the cost of manufacture and the contract price.</p> <p>2, Where a claim is made for damages arising from a breach of contract, and evidence is offered to show loss of profits which might have been realized from its performance, the question to be determined is whether the damages claimed..are too conjectural, speculative, or contingent to form a safe basis for estimating the damages.</p> <p>.3. Where a contract is executory, and the time for its performance has expired, and the elements out of which the profits were to arise can be ascertained and proved with reasonable certainty, and especially where the compensation is fixed by the contract, there is no reason why the difference between the cost of performance and compensation agreed upon should not be recovered as actual damages suffered by the aggrieved party by its viola, tion, whether they be called gains prevented or loss of profits.</p> <p>4. The declaration in this case is held to state a cause of action.</p>

damus to seat an appointee of the board of supervisors of Wayne county as a county superintendent of the poor. The facts are stated in the opinion.

<p>Sheriff’s fees— “ Committed” and “discharged ” defined — Board of supervisors.</p> <p>1. The terms “ committed ” and “discharged” are words of recognized legal meaning, and refer only to the beginning and end of the term of imprisonment.</p> <p>2. Charges by a sheriff for taking a prisoner to court and returning him to jail do not fall within the statute allowing a fee of 35 cents for every person committed to and discharged from jail.</p> <p>3. The board of supervisors have a considerable discretion in giving pay for services on which the law is silent, which must be exercised by them, and not by this Court, if a proper case in their judgment arises ; bub the specified fees, over which they have no discretion, should nob be made to include anything not fairly within their terms.</p>

<p>Appeal from Cass. (Smith, J.)</p> <p>Bill to set aside a deed.</p> <p>The facts are stated in the opinion.</p>

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

<p>Trespass — Ouster of sublessee — Right of action — Measure of damages —Partnership—Suit by one copartner — Estoppel.</p> <p>1. An action of trespass for the ouster of sublessees from the possession of a mill standing on leased ground by the owners of the freehold, if sustainable at all, belongs to the sublessees.</p> <p>2. Under a declaration claiming damages for the interruption of a lumbering business by a wrongful possession of a saw-mill, if anything is recoverable, it is damages for breaking up or interrupting an active business, and rental value, if allowable at all can only be considered in determining the amount of damages as & possible element, but not as actual damages.</p> <p>3. One partner cannot bring a separate action atlawfor his supposed share of a partnership grievance.</p> <p>-4. While parties may sometimes be bound by what binds their assignors in privity, there is no rule which binds any one by estoppel by the acts and doings of his subsequent grantees.</p>

<p>Mentally incompetent person — Appointment of guardian — Petition —Order of probate court — Special guardian.</p> <p>1. A petition under How. Stat. § 6314, for the appointment of a guardian for an alleged incompetent person, must contain a statement of facts authorizing the appointment, and must show upon its face that it is made by some one of the persons named in the statute, and also inform the court who will be affected by such appointment, which will manifestly include the presumptive heirs at law and distributees.</p> <p>2. A petition which states that it is necessary that a guardian of the person and estate of the alleged incompetent person be appointed, because he is mentally incompetent to have the care and management of his property, raises an issue to be determined by the probate judge, and is not open to the objections discussed In re Brown, 45 Mich. 326, and In re Storich, 64 Id. 685.</p> <p>-8. An order by a judge of probate appointing a guardian for an incompetent person must cover both the person and estate of the ward.</p> <p>4. A decree by the probate court adjudging an "alleged incompetent person to be mentally incompetent to take care of himself and manage his property is essential, and such adjudication should appear of record. North v. Joslin, 59 Mich. 635 (head-note 6).</p> <p>5. The proceeding to appoint a special guardian for an incompetent person is purely ancilliary to the appointment of a general guardian, and if the latter appointment is illegal the other falls with it.</p>

Appealfrom Wayne. (Jennison, J.) Bill filed to construe a will. Francis F. Palms and Michael W. O’Brien, complainants, and all of the defendants appeal from decree holding the will void, etc. The facts are stated in the opinion.

<p>Error to Lenawee. (Howell, J.)</p> <p>Assumpsit-.- Defendant brings error.</p> <p>The fai ts are stated in the opinion.</p>

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

<p>Error to Kent. (Montgomery, J.)</p> <p>Assumpsit. Defendants Lucas and Bennett bring error.</p> <p>The facts are stated in the opinion.</p>

) Bill filed to discharge a mortgage, and for the statutory penalty, etc. Both parties appeal. The facts are stated in the opinion.

<p>Townships — Allotment of town-line highway for purposes of supervision and repair — Contract for building bridge — Authority of commissioner of highways — Ratification.</p> <p>1. Where a township-line road has been allotted, under the statute, between two townships, ea-ih becomes liable to keep its portion in repair, and neither township can legally obligate itself to aid in the erection of a bridge forming a part of that portion of said highway allotted to the other township.</p> <p>2. A township cannot ratify a contract it could not legally enter into in the first instance.</p>

<p>Application for mandamus to set aside attachment proceedings.</p> <p>The facts are stated in the opinion.</p>

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

<p>Error to Wexford. ( Fallass, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts aré sufficiently stated in the opinion.</p>

<p>. Motion for rehearing.</p> <p>The facts are stated in the opinion.</p>

Exceptions before judgment from Allegan. (Arnold, J.) Eespondent was convicted of malicious trespass. The facts are stated in the opinion.

<p>Error to Shiawassee. (Newton, J.)</p> <p>Eespondent was convicted of furnishing spirituous liquor to an intoxicated person.</p> <p>The facts are stated in the opinion.</p>

(Steere, J.) Eespondent was convicted of the offense of resisting an officer, and sentenced to State prison for two years. The facts are stated in the opinion.

Excepiions before judgment from Eaton. (Hooker, J.)> Respondent was convicted of furnishing liquor to minor- The facts are stated in the opinion.

(Swift, J.) Despondent was convicted of stealing from a dwelling-house in the day-time, and sentenced to nine months’ imprisonment. The facts are stated in the opinion.

Clair. (Stevens, J.) Appeal from order convicting appellant of contempt for non-payment of temporary alimony. The facts are stated in the opinion.

(Joslin, J., presiding.) Kespondent was convicted of larceny, as for a third offense,, and sentenced to State prison for ten years. The facts are-stated in the -opinion.

<p>Condemnation proceedings — Detroit city charter — Opening street— Damages — Verdict of jury — Necessity of improvement— Assessment of benefits — Taxing district.</p> <p>1. The provisions of the charter of the city of Detroit authorizing the jury in condemnation cases to give a lumping verdict, deducting from the proper damages the enhanced value by benefits given to the owner’s land not taken, and authorizing the city to determine in advance an assessment district, including the property which it may deem benefited, and providing that any compensation or damages shall be apportioned one-half against the city at large and one-half against the property benefited, are not sufficiently guarded, and as to a part at least are entirely without legal safeguards.</p> <p>2. The Constitution does not allow property to be condemned unless there is a public necessity for it, and this must he a real necessity, without which private citizens cannot be disturbed in the enjoyment of their freeholds in their own way.</p> <p>3. In estimating the necessity for taking private property for public purposes, it can make no difference to the public who owns the land. If it is necessary to take it, that necessity must be as great where it is owned separately as where it is part of a larger property ; in which latter case the public have no right to force its sale for less than its independent value.</p> <p>4. Every valid assessment must be based on some legally ordained basis of apportionment, and not arbitrarily. The charge, whether based on supposed benefits or any other legal burden, must be spread over the taxing district according to some uniformly applied rule, and in such a way as to show a compliance with that rule, whatever it may be.</p> <p>5. There may be a necessity of leaving considerable discretion to the authorities who fix a taxing district, if it can be made to differ from the ordinary municipal subdivisions; but it cannot be such an uncontrolled discretion as to leave no public character whatever to the district, and make a purely private charge under pretense of setting off an assessment district.</p> <p>6.It is elementary that no one can be lawfully made to bear more-than his share of any public burden, and that share must be-assessed by some tangible process of distribution.</p> <p>7. The only theory on which the doctrine of charging the expense of public works on property benefited can be maintained is that if local improvements can be conveniently paid for by local assessments, in this way, in the long run, the general public may be charged for the general result with approximate equality. Any other theory of benefits involves the taking of private property for private use, and is unfair and unauthorized. The whole public, or the allotted district, or both, must pay for all that the public appropriates.</p> <p>8. If one person is charged for more benefit than another, it must be because by the rule of apportionment his share is greater in the assessment; but he can only be obliged to pay his share, and must have the means furnished him by the proceedings of knowing exactly what his share is; and this cannot be done unless there is a separate finding of the value of the property taken and of the enhanced value of all the parcels of property within the district, so that the percentage of each owner can be easily calculated, as in the case of any other tax or assessment.</p> <p>9. There may be cases where the damage to property, by the establishment of a public way, includes more than the mere value of the land taken; but there can be no case where the price paid by the public can lawfully be any less than the value of the property taken.1</p>

<p>JSjectment — Land contract — Statute of limitations — Adverse possession.</p> <p>1. In this case the questions of fact submitted to the jury, and found in favor of the defendant, were passed upon in Coole v. Rounds, 60 Mich. 310, with a like result, and cannot now be held to have been improperly submitted to the jury.</p> <p>3. A land contract giving, if fulfilled, an estate in fee-simple, can never expire by its own limitations except by forfeiture for breach of condition, and the vendor has no right of entry for any other reason.</p> <p>3. An action of ejectment by the vendor in a land contract giving, if fulfilled, an estate in fee-simple, brought more than 30 years after default in the last payment stipulated for therein, during which time there has been an adverse possession, is barred by the statute of limitations.</p>

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

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

<p>Principal and agent — Extent of authority — Duty of party dealing with agent — Application of agents private debt upon account of principal — Ratification—Knowledge of owner of boohs of account as to their contents.</p> <p>1. A person who deals with an agent is bound to inquire into the extent of his authority, ignorance of which is no excuse.</p> <p>2. The authority of an agent to collect money for his principal does not authorize him to receive anything but money in payment from the debtor.</p> <p>3. The carelessness of the principal in reposing confidence in his agent does not make him liable to a third party who, in dealing with such agent, fails to exercise the diligence usual with good business men under the circumstances,</p> <p>4. A party dealing with an agent who has general authority to sell goods or collect debts is bound to know that he has no authority by virtue of his agency to apply or offset his private debt to such third party in payment of the debt of the third party to the principal; and, if this is done, he takes upon himself the burden of showing an express authority in the agent, or ratification by the principal.</p> <p>5. There can be no ratification of the act of an agent without full knowledge of the fads which it is claimed are ratified.</p> <p>■6. Knowledge on the part of a firm of coal dealers that a clerk had for more than seven years been in the habit of applying his rent and other claims due from him to his landlord on account of coal purchased of said firm by the landlord, during which time no objection was made by said firm, amounts to a ratification of . such unauthorized course of dealing.</p> <p>7. A person is presumed to be cognizant of the contents of his books-of account, but the probative force of such presumption may be strong or weak, as the circumstances may show that the party made the original entries, or that they were made by a clerk or book-keeper, and may be entirely overcome and disproved by the positive uncontradicted testimony of the party that the accounts were kept and entries made by such agents, and had never been examined by him, and that he had no knowledge thereof.</p> <p>8. It is generally a question for the jury whether silence affords a reasonable presumption of ratification under the circumstances , of the particular case, and it will depend very much upon the question whether the party dealing with the agent had reason, from the course of previous dealings, or from the circumstances of the case, including the fact that the principal had notice or knowledge of the assumed authority of the agent in the dealings, to suppose that the principal would inform the party if he intended not to ratify the act, and whether his delay and silence, after such notice or knowledge, are or are not a fraud upon the other party.</p>

<p>Fraudulent conveyances — Evidence—Inadequacy of price — Dealings with relatives — Proof of fraud — Bill in aid of execution —Lien of creditor.</p> <p>1. Upon a review of the case, the decree of the circuit judge dismissing complainant’s bill is affirmed.</p> <p>2. The dealings of an insolvent debtor, in property, with his relatives, have no necessary connection with fraudulent transactions; such relationship being a circumstance calling for closer scrutiny of such dealings, and may always be shown in evidence for that purpose.</p> <p>8. Great inadequacy of price is important evidence to show fraud in, the conveyance of property by an insolvent debtor, varying, however, with the circumstances of each case.</p> <p>4. The circumstances should be such, as to amount to clear proof before a party can be held liable for fraud; and the inferences to be drawn therefrom must not only be consistent with the fraud-' ulent acts charged, but inconsistent with the theory of honesty and good faith in the transaction.</p> <p>5. “ Unless the creditor has a certain claim upon the property of the debtor, he has no concern with his frauds.”</p>

<p>Application for mandamus to require respondents to entertain jurisdiction to hold preliminary examinations in criminal prosecutions under the liquor law of 1887.</p> <p>The facts are stated in the</p> <p>opinion.</p>

<p>Constitutional law — Liquor law of 1887 — Extension of power to board of metropolitan police of Detroit — Patrolling suburbs to city.</p> <p>1. The attempted extension of powers to the board of metropolitan police of the city of Detroit by section 38 of Act No. 813, Laws of 188?, to police certain townships in Wayne county for the purpose of enforcing the provisions of said act therein, is illegal.</p> <p>2, The following propositions are summarized from the opinion of Mr. Justice Campbell:</p> <p>a — Act No. 78, Laws of 1865, establishing a police government for the city of Detroit, was considered in People v. Mahaney, 18 Mich. 481, and held sufficient to replace a city marshal by the officers substituted.</p> <p>b — The reference in the title to a police government cannot mean a government in the ordinary sense in which municipal and local governments exist, and the word system would have-been more appropriate, and not misleading.</p> <p>c — Under our system we can have no governments, general or special, that do not immediately represent a popular constituency, and no properly called governmental power can be lodged anywhere else.</p> <p>d — The Legislature has power to confer upon townships, cities, villages, and boards of supervisors local legislative aud admin, istrative powers such as are suited to their condition; but there is no other power mentioned in the Constitution for conferring similar public governing authority elsewhere, and these bodies are all created by popular elections.</p> <p>e — It was held in Attorney General v, Detroit Common Council, 58 Mich. SIS, that the people could not be subjected to any delegated powers of government not exercised by their own representatives.</p> <p>/ — The police board and its appointees or deputies can only be regarded as lawfully exercising ministerial and administrative functions in obedience to the statutes of the State and the ordinances of Detroit, and no more; and under the title of the creative act they are confined, in their legal action, to suab. territorial limits as belong to the city of Detroit, and such as might be allowed to be covered by city appointees if the city itself appointed its own police. Allorv, Wayne Co. Auditors, 43 Mich. 76.</p>

(Jennison, J.) Case for malicious prosecution of an attachment suit. •Defendants bring error. The facts are stated in the opinion.

(Smith, J.) Appeal from an order granting an ex parte injunction, and from an order refusing to dissolve the same. The facts are stated in the opinion.

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

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

(Hooker, J.) Certiorari to review proceedings establishing a drain. Petitioner brings error from order of circuit court affirming such proceedings. The facts are stated in the opinion.

<p>Proceedings for widening street — Condemnation—Award of damages.</p> <p>The award to defendant of the full value of the land taken for street-opening purposes is affirmed. See City of Detroit v. Daly, ante, 503.</p>

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

<p>Subrogation — Loan of money to pay mortgage,</p> <p>One loaning money to a mortgagor to pay the mortgage under an agreement from him to secure the repayment of the loan upon the mortgaged premises, which he fails to do, will be subrogated in equity to the 'rights of the mortgagee to the amount of the money loaned and interest thereon.1</p>

(Ramsdell, J.) Respondent was convicted of rape, and sentenced to State prison for 15 years. The facts are stated in the opinion.

(Newton, J.) Respondent was convicted of resisting an officer in the service of a writ of attachment, and sentenced to nine months’ imprisonment. The facts are stated in the opinion.

<p>Application for mandamus to compel the payment of interest alleged to be due relator on the “ Swamp-Land Fund,” so called.</p> <p>The facts are stated in the opinion.</p>