Volume 69 — Michigan Reports

<p>Application for mandamus to compel the payment of- taxes by the Auditor General to a county treasurer.</p> <p>The facts are stated in the opinion.</p>

<p>fraudulent conveyances — Transfer of personalty to wife of debtor— Evidence.</p> <p>1. Upon the facts disclosed in the record, the court is held to have properly directed a verdict in favor of the plaintiffs.</p> <p>3. In a suit involving the title to personal property levied upon by a judgment creditor of the husband ana claimed by his wife, evidence of the situation and surroundings of a farm owned by the wife at the time the husband contracted the debt sought to be collected, and of the part he took in its management, and of his making sales of and dealing with the personal property there, is immaterial.</p>

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

<p>Street-opening ease — Condemnation proceedings — Damages.</p> <p>This case involves some of the same principles discussed in City of Detroit v. Daly, 68 Mich. 503, and the jury is found not to have rendered a fair verdict, nor to have found the necessary elements for correcting it, and the proceedings are quashed.</p>

<p>Attorney and client — Prosecution of suit on shares — Statute of frauds — Action against attorney for costs — Evidence — Charge to jury.</p> <p>1. A verbal agreement by which an attorney contracts to prosecute a claim against an insurance company at his own expense, and, if successful, pay one-half the sum collected to the plaintiff, and, if unsuccessful, pay the costs and receive nothing for his services, and which has been fully performed, is not within the statute of frauds.</p> <p>2. In a suit on such an agreement to recover of the attorney said costs, the plaintiff having testified that the attorney solicited him to make said agreement after he had given up trying to collect the claim, he may be asked on cross-examination if he did not try to get other attorneys to take the case on shares.</p> <p>3. Where in such a case the attorney claimed that after obtaining a judgment against the insurance company at the circuit, which the company proposed to test in the Supreme Court, he had an ■express understanding with his client that if he failed in the Supreme Court he was not to have any fees, nor be liable for any costs, and that he informed his client that he could then discontinue the suit without payment of costs, he may show by the officers of the company their consent to such discontinuance.</p> <p>4. Where a note was placed in the hands of an attorney for collection, and taken from him after he had rendered certain services in the matter, in a suit to recover for the same it is not competent for the defendant to show that the renewal note taken by him had not been paid.</p> <p>5. The requests of the defendant, as set forth in the opinion, were especially applicable to his theory of the case, and should have been given.</p> <p>6. Where counsel has prepared instructions which he desmes given to the jury, and which involve propositions of law governing the case as he understands it, and offers and requests to be heard in their support by reasoning and authority, it is his right to be so heard, in a reasonable manner; but before a refusal can be urged as objectionable, he must have made known to the court his wish to be thus heard.</p> <p>7. A case should be submitted to the jury upon the theory of the defendant as well as that of the plaintiff, if there is any testimony in the case tending to support it.</p>

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

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

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

(Full bench.) Information in the nature of a quo warranto, filed under How. Stat. § 8662 (sec. 2). Relator brings error from judgment dismissing writ. The facts are stated in the opinion.

(Joslin, J.) Bill filed by wife to restrain the sale of real estate claimed by her to satisfy a judgment against her husband. Defendant appeals from a decree granting the relief prayed for. The facts’ are stated in the opinion.

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

<p>Malicious prosecution — False imprisonment — Pleading—Forgery— Sufficiency of warrant.</p> <p>1. Counts for false imprisonment and malicious prosecution may be joined under the practice in this State.</p> <p>2. A count in a declaration for malicious prosecution alleging that • defendant caused the arrest of plaintiff on a warrant charging him with uttering and publishing as true a certain false, forged, and counterfeited promissory note for the payment of money, knowing it to be false, forged, and counterfeited, with intent to defraud and injure the complainant', not only substantially, but technically, describes an offense for which a justice has jurisdiction to hold an examination for commitment for trial at the circuit.</p> <p>3. A count in a declaration for malicious prosecution which states that the plaintiff was not only discharged finally, but duly discharged and fully acquitted, charges, inferentially at least, that the arrest was for examination before a justice of the peace, as there could be no discharge, joined with an acquittal, except upon a hearing upon the charge.</p> <p>4. A declaration charging the defendants with maliciously and falsely, and without probable cause, causing the arrest of the plaintiff for forgery (the offense being properly described), and to be imprisoned for a certain number of days, at the expiration of which time the plaintiff was duly discharged, and fully acquitted of the said supposed offense, counts for malicious prosecution, and not for false imprisonment.</p> <p>5. A warrant charging the defendant with uttering and publishing as true (on a given date) a false, forged, and counterfeited promissory note for the payment of money (fully describing the note), well knowing at the time of such uttering and publishing that the note was false, forged, and counterfeited, sufficiently describes the offense intended to be charged.</p> <p>6. The term forged, in law, indicates a fraudulent purpose in making the paper.</p> <p>7. The Constitution only requires such a description of an offense as fully informs the person charged of what he is called upon to meet, and of the nature of the accusation against him.</p> <p>8. A warrant need only recite the substance of the offense charged, and to require complainants, who are often persons of limited education, and who prefer complaints before justices of the peace who are not lawyers, and not at all acquainted with legal niceties, to do more than to describe the offense with substantial correctness, or to give in the warrant any more information than is needed to inform the defendant of the crime he is charged with, and that it is a crime, would be to make it practically impossible to hold shrewd criminals at all, in many places, and would be of no use to any one.</p> <p>9. A warrant showing that the original complaint was on information and belief, but reciting that upon an examination on oath of the complainants before him it appeared to the justice that the offense had been committed, and that there was just causé to suspect the accused party to be guilty thereof, shows presumptively that a legal and proper showing was made for the issuance of said warrant.</p>

(Chambers, J.) Appeal of John Galloway from final decree overruling his exceptions to the report of the commissioner finding against his claim to the surplus realized on the foreclosure sale in the cause. The facts are stated in the opinion.

(Look, J.) Bill filed to set aside an alleged trust-deed. Defendants appeal from an order granting an injunction and appointing a receiver. The facts are stated in the opinion.

<p>Estates of deceased persons — Commissioners on claims — Appeal by heir from allowance of claim — Appeal bond.</p> <p>1. The statute authorizing heirs to appeal from the allowance of a claim against the estate, where the administrator declines and fails so to do, authorizes tkém to defend the proceedings in the circuit court in the name of the administrator, and to control and manage such defense.</p> <p>2. An indorsement on an appeal bond by the judge of probate, showing that it was filed on the day of the allowance of the appeal, the order for which recites that said bond “ has been read, filed, and duly approved,” shows that an indorsement of such approval on said bond as of a subsequent date is a clerical error.</p> <p>3. A bond given by heirs on. an appeal from the allowance of a claim against an estate, running to the claimant alone, but conditioned “ to pay all damages and costs, as well as intervening damages, to said claimant and to the estate, which may be awarded against them on said appeal,” is sufficient to confer jurisdiction to allow the appeal.</p> <p>4. If a bond given on appeal from probate court is defective, the remedy is not by dismissing the appeal in the first instance absolutely, but conditionally, in case an amended or new bond shall not be filed within a reasonable time to be fixed by the court, under How. ¡3 tat. § 7771.</p> <p>5. In Daniels v. Stevens, 60 Mich. 219, where an appeal was taken by a creditor, whose claim was rejected by the commissioners on claims, it was held that the bond should run to the administrator of fhe estate, he being the “ adverse party,” referred to in How. Stat. § 5908.</p>

<p>Land contract — Forfeiture— Damages.</p> <p>1. It may not be easy to say what damages can be recovered on a land contract terminated by forfeiture, but it is very certain that the vendee has no concern with the compensation paid by the vendor to his own agents for negotiating the sale.</p> <p>2. A notice by the vendor in a land contract of his estimated damages on a forfeiture by the vendee, given pursuant to the contract to enable the vendee to determine whether the items of the claim are just and ought to be acquiesced in, and which was to stand as the acknowledged obligation of the vendee, unless objected to, should specify such items, which (in the absence of other terms in the contract) would be limited to such as could be recovered by suit; and said claim, as presented, in this' case, is shown to include illegal charges, and cannot be recovered upon.</p>

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

<p>Application for mandamus to compel assessment of damages in replevin.</p> <p>The facts are stated in the opinion.</p>

<p>Negligence — Failure to give signals at railway crossing — Contributory negligence — Duty of person about to cross track,</p> <p>1. Under the undisputed evidence'in this case, the plaintiff’s intestate was guilty of contributory negligence, and a verdict was properly directed in favor of the defendant.</p> <p>2. A railroad track is, in itself, a notice and warning of danger, and it is the duty of persons approaching a crossing to look and listen before venturing upon it.</p> <p>3. The doctrine of comparative negligence does not prevail in this State.</p> <p>4. The mere neglect to give signals at a country crossing is not considered such gross negligence as to destroy the ordinary legal effect of contributory negligence upon the plaintiff’s case.</p>

(Smith,J.) Proceedings to review an order of the circuit court dissolving an attachment. Plaintiff brings error. The facts are stated in the opinion

<p>Error to Oakland. (Stickney, J.)</p> <p>Debt for a statutory penalty. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Oakland. (Stickney, J.)</p> <p>Assumpsit. ^ Plaintiff brings error.</p> <p>The facts are stated'in the opinion.</p>

<p>Verbal eontraet — Province of jury — Agreement to procure furniture at dealers'■ rates.</p> <p>1. Where a verbal agreement is sued upon, it is for the jury to find from all of the testimony what tue contract between the parties was.</p> <p>2. In this case it is held that there was testimony from which the jury might find that the furniture purchased by defendant was furnished at dealers’ rates through the aid of the plaintiff, and the facts testified to in that behalf being disputed, it was for the jury to say where the truth lay in that respect.</p>

<p>Chattel mortgage — Purchase subject to lien — Failure to file— Estoppel.</p> <p>1. The purchaser of property subject to the lien of a chattel mortgage, which he expressly assumes and agrees to pay as a part of the purchase price, is estopped from questioning the validity of the mortgage.</p> <p>2. How. Stat. § 6193, does not void a mortgage as to the creditors of, subsequent purchasers of the mortgaged property with knowledge of and subject to the lien of the mortgage, the payment of which they have expressly assumed.</p>

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

<p>Justices of the peace — Pleadings—Amendment of declaration— Assignment of claim — Evidence—Special appeal.</p> <p>1. A justice of the peace has no power to allow any substantial amendments to the declaration after the cause is submitted and taken under advisement.</p> <p>2. Amendments in matters of form or substance in furtherance of justice may be allowed by a justice of the peace at any time , before the final submission of the cause; and whether allowed or not. if they are not such as cause surprise, and, after the evidence is introduced, if the amendment is such as would be allowed as a matter of course, the declaration will be treated as amended.</p> <p>3. A judgment in favor of the assignee of an account is valid, if not appealed from, although proof of the assignment is admitted without an averment of such fact in the declaration. ■</p> <p>4. The rulings of a justice of the peace upon the admissibility of evidence are not subject to review on special appeal. Albert v. Sutton, 28 Mich. 2.</p> <p>5. The allowance by a justice of the peace of an amendment to a declaration after the submission of a cause cannot be reviewed on special appeal.</p>

<p>Practice in circuit courts — Defendant supplying an essential dement to plaintiff’s case — Foreign executor — Fees—Note given by heir to obtain possession of part of estate — Consideration.</p> <p>1. A defendant who supplies by his defense an essential element, which he claims plaintiff failed to put into his case before' rest- ■ ing, cannot be heard to complain on account of such omission.</p> <p>2. Where a foreign executor brings suit upon an agreement made by one of the heirs to pay him a certain sum in lieu of the fees allowed by the laws of the state where he was appointed Upon . that part of the estate turned over to said heir, the precise amount of such statutory fees becomes unimportant, nor can the plaintiff be affected by any contract between the defendant and his co-heirs in reference to the settlement of said estate, of which he had no knowledge.</p> <p>8. The fact that, under an agreement between an heir and his co-heirs, he is entitled to the possession of a certain portion of the estate then in the hands of a foreign executor, will not relieve him from the payment of a note given to the executor for the purpose of securing the payment of his fees attaching to said portion of the estate which is turned over to such heir, the same being taken in good faith by the executor, who, before learning of any intended contest of payment, has distributed the balance of the estate remaining in his hands. Moore v. Locomotive Works, 14 Mich. 274.</p> <p>4. The surrender by a foreign executor to an heir of a portion of the estate, which the executor had a right to hold until the estate was closed, and from which he would have been entitled to deduct his fees, is a sufficient consideration for a promise by the heir to pay the executor an agreed sum in lieu of such fees.</p>

<p>Finding of facts by referee — Lácense to use patent right.</p> <p>1. A referee is not bound to return tbe evidence with his finding of facts in his report, and in the absence of such return, or of a settlement of such evidence in the bill of exceptions, the appellate court cannot ascertain whether such finding is supported by any evidence or not.</p> <p>2. Under the contract in this case, either party had the right to terminate the license granted to defendants by notice, which contract did not contemplate the payment of royalty after such notice, except such as might be due at the time of its service.</p> <p>3. The rights of parties claiming under different patents cannot be litigated in the State courts.</p>

<p>Chattel mortgage — Certified transcript — Evidence.</p> <p>1. How. Stat. § 7504, providing that certified transcripts of papers filed or recorded in a public office shall be evidence in like manner as the originals would be if produced, does not apply in any case where such originals would not prove themselves.1</p> <p>S. It is no part of the duty, and it is not in the power, of a township clerk, to find out whether a paper left with him for filing is genuine, if purporting to be an original, or whether it is in fact an original, and not a copy; and the statute making such filing notice of the paper, such as it is, does not make either the file, or a copy of the file, proof of execution or of genuineness.</p> <p>•3. A certified copy of a chattel mortgage is not competent proof of the execution or genuineness of the instrument.</p>

(Mills, J., presiding.) Bill filed to impeach a decree of divorce for fraud, and to enjoin an ejectment suit for dower, etc. The facts are stated in the opinion.

<p>Street-opening ease — Damages. ,</p>

<p>Street-opening ease — Damages</p>

<p>Appeal from recorder’s court of Detroit. (Swift, J.)</p> <p>Appeal from award of damages in street-opening case.</p> <p>The facts are stated in the opinion.</p>

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

<p>Promissory note of married woman — Consideration—Question of fact.</p> <p>This case is held to have been improperly taken from the jury, who should have passed upon the questions of fact presented by the testimony under proper instructions from the court. The questions of law involved are so blended with the facts as to render an examination of the opinion essential to a correct understanding of the same.</p>

(Joslin, J.) Bill filed for the discharge of a mortgage and to collect the penalty imposed for á non-discharge. Defendant Fleming appeals. The facts are stated in the opinion.

(Howell, J.) Bill filed to have certain assessments for street-paving purposes declared void, and to restrain a sale of property therefor. The facts are stated in the opinion.

(Grant, J.) Bill filed to enjoin interference with complainant’s use of a dam, etc. Defendants appeal. The facts are stated in the opinion.

<p>Contract by correspondence — Acceptance of offer to sell — Pleading..</p> <p>1. Offers for the sale of goods become binding only when the proposition is met with an acceptance corresponding with it entirely and adequately, without qualification or the addition of new. matter.</p> <p>2. An offer by letter for the sale of all of the Hercules powder which-the dealers have in stock, consisting of specified amounts of different grades, at a certain price per pound, with a reservation of 1,500 pounds of no specified grade, to be paid for in cash, or by an indorsed note that the vendors could use as cash, and a letter accepting the powder, less the 1,500 pounds, which is selectéd for the vendors, coupled with an order to ship the goods, and on-receipt of invoice the vendee would forward the indorsed note, do not constitute a binding contract between the parties.</p> <p>3. An offer for the sale of powder, and of caps and fuse to be used herewith, does not become binding upon the vendor by an acceptance of the powder alone.</p> <p>4. A count in a declaration alleging an indebtedness of the defendants in a given sum by reason of the failure of the defendants to ship, furnish, and deliver to plaintiff 7,300 pounds of Hercules powder, before then bought of defendants by plaintiff, is too uncertain and indefinite to sustain a cause of action.</p>

<p>Contract for driving logs — Pleading—Amendment of declaration— Agreement as to payment by owner’s vendee — Evidence— Practice in Supreme Court.</p> <p>1. An amendment of a declaration by substituting “P xO,” the mark • as shown by the testimony upon certain logs, to recover for the driving of which the suit was brought, for “S P,” the mark mentioned in the declaration, is clearly within the statute of amendments, and its allowance within the discretion of the court.</p> <p>2. An arrangement with a contractor for driving logs, made by a purchaser from the owner, by which the vendee is to pay for such driving, and retain the amount of the purchase price, will not make the vendee debtor to the contractor, and discharge the vendor fromhis contract obligations. In such a case, payments or a tender made by the vendee will be for the use and benefit of the vendor, but proof of such tender, coupled with a statement that it was to show that the vendee owed the debt rather than the vendor, is properly excluded.</p> <p>■3. Where a defendant introduces evidence tending to prove his offset and damages it must be presumed, in the absence of a finding of facts, that the court gave it due consideration in arriving at the judgment reached.</p>

Clair. (Stevens, J.) Bill filed to remove a cloud upon complainants’ title, and compel a release by defendant of his claim under a homestead entry. The facts are stated in the opinion.

Joseph. (Pealer, J.) Bill filed by an administrator to recover lands • conveyed in-, fraud of creditors. Defendants Catón and Wolf appeal. The facts are stated in the opinion.

<p>Statute of frauds — Contract for purchase and sale of land — Pleading — Common counts — Evidence—Practice in circuit courts —Charge to jury — Credibility of witnesses.</p> <p>i_ a verbal agreement by which a party turns over to a land dealer a verbal option he has secured for the purchase of certain lands at a fixed price, with estimates of the timber thereon, and agrees-to secure a written refusal in the name of the land dealer, who is to furnish the purchase money and take the deed in his own name, and on the sale of the land divide the profits with said party, is not within the statute of frauds, and, if carried out, said party can recover his share of the profits under a common-count declaration, amplified by a bill of particulars stating said - facts. Carr v. Leavitt, 54 Mich. 540; Pierson v. Spaulding, 61 Id. 90; Nugent v. Teadhout, 67 Id. 571.</p> <p>2. Where the liability of a defendant depends upon his having sold land, the title to which was vested in him under an agreement-to divide the profits arising from said sale with the plaintiff, the deed from the defendant is the best evidence of such liability, and must be produced. Thompson v. Pichards, 14 Mich. 172.</p> <p>3. It is not error for the court to allow plaintiff’s counsel to read authorities, even after he has made his opening argument to the jury, and, while discretionary to allow an argument at that time by defendant’s counsel, such a course is proper if desired.</p> <p>4. The court may always tell the jury for what purpose certain testimony was received, but it is not proper to instruct them what that testimony tends to prove, without in the same connection submitting to them the question of its credibility, of which they are the sole judges.</p>

<p>Error to Washtenaw. (Joslin, J.)</p> <p>Bill in aid of execution. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Lease —Life tenant — Impeachment for waste — Presumption in support of findings of jury.</p> <p>1. Where the record does not purport to set out all of the evidence given on the trial, it will be presumed that evidence was given to support the findings of the jury in answer to special questions submitted to them, and the party propounding same will be bound by their answers.</p> <p>3. Where a son gave his father a lease of certain lands “ to use and control as the father thought proper, for his benefit during his natural life,” both parties remaining in possession, and a building was erected on the land by the joint labor of the son and third parties, with the knowledge of the father, under an agreement with the son that it was to remain a permanent structure for the benefit of the son’s estate, it became a part of the freehold, and could not be removed by the father, or sold, unless he possessed such rights of sale or removal under his lease.</p> <p>S. A lease of land, “ to have and to hold, and to use and control as the lessee thinks proper, for his benefit during his natural life,” gives to the tenant the right to do all those acts which a leasing “ without impeachment for waste ” confers upon a life tenant.</p> <p>4. Tenants for life, not made unimpeachable for waste by the lessor* are liable for both commissive and permissive waste.</p> <p>5. The real intention of the clause, “ without impeachment for waste,” is to enable the tenant to do many things, such as cutting wood, opening new mines, etc., which would otherwise at the common law amount to waste; but these words do not operate as a license to the tenant to destjpy the estate, or to commit malicious waste, such as cutting down fruit-bearing trees, or trees which serve for shade or ornament.</p>

<p>Error to Washtenaw. (Joslin, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion, and in North v. Joslin, 59 Mich. 634.</p>

<p>Evidence — Cross-examination—Comparison of signatures.</p> <p>1. Where, in a suit to recover on certificates of deposit owned by an estate, the bank claimed they had been paid to an indorsee of the administrator, which indorsement the administrator, when sworn as a witness, denied making, and on cross-examination admitted the genuineness of his signature to several other papers shown him, they may be used by the jury for the purpose of comparing said signatures.</p> <p>2. Where, in a suit by an administrator on certificates of deposit claimed to have been paid to his indorsee, he denies such indorsement, or ever having the certificates in his possession, an inventory of the estate, sworn to by him, in which such certificates are referred to, is admissible in evidence to contradict his testimony, and may be used for the purpose of comparing signatures.</p>

(Look, J.) Bill filed to compel the defendant to accept a portion of the purchase price of timber sold complainant, on the ground of mutual mistake in estimates, etc. Defendant appeals. The facts are stated in the opinion.

<p>Trover and conversion — Evidence—Res gestee — Reading testimony of witness residing out of State given on former trial— Impeachment of witness.</p> <p>1. Where the conversion of property is sought to be established by proof of the defendant’s acts, his words accompaning ouch acts are as much a part of the res gestee as his acts, and are admissible in evidence.</p> <p>2. The testimony of a witness taken on the trial of a cause may be read in evidence on a subsequent trial if he is shown to reside beyond the jurisdiction of the court.</p> <p>3. Where a witness, on cross-examination, is questioned in regard to his testimony on a former trial, after which a portion of such testimony is read, it is error to exclude the reading of the balance of the testimony by the opposite counsel.</p>

<p>Appeal from Wayne. (Look, J.)</p> <p>Bill filed to construe a clause in a will. Defendant Speirs appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Contract by correspondence — Statute of frauds — Agreement for sale of real property — Description of premises.</p> <p>1. A complete and binding contract may be created by letters or other writings relating to one connected transaction, if, without the aid of parol testimony, the parties, the subject-matter, and the terms of the contract may be collected.</p> <p>2. Correspondence showing the acceptance of an offer to sell and!. convey the property known as the “Schoolcraft-store Property”' for $2,500, $2,000 in cash on delivery of deed, and two notes: amounting to $500, to be signed by the vendee, and to be payable? from the rents of the property sold, the rent accrued to the date-the deed was to bear to be applied on the notes, — amounts to a complete and binding contract, containing all of the essential terms requisite to comply with How. Stat. § 6181.</p> <p>3. The description of property in correspondence for its purchase and sale as the “Schoolcraft Store,” the vendee having formerly owned the property, and her husband, as her agent, having rented it and collected the rent for the vendor, is sufficient.</p> <p>4. A description in a deed as the “Schoolcraft Store” is a sufficient designation to convey the store and the parcel of land upon which it stood, [it being] known, used, and occupied therewith.</p>

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

<p>Boundary lines — Survey—Ancient fences — Charge to jury.</p> <p>1. A charge to a jury, by which they are given to understand that a disputed question of fact has been established by the proofs, is misleading.</p> <p>2. Ancient fences used by a surveyor in attempting to reproduce an old survey are strong evidence of the location of the original lines, and, if they have stood for 20 or 80 years, should be taken as indicating such lines as against evidence of a survey ignoring such fences, and assuming a starting point at a certain street because agreed upon by surveyors as the true line.</p> <p>3. It will not do to permit boundaries to be disturbed and moved-upon a survey made from an assumed starting point, without some proof of its being a true line located and fixed by the original survey.</p>

(Green, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion, and in the former opinion found in 65 Mich. 688.

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

<p>Pleading — Justice’s court — Notice of recoupment — Account stated.</p> <p>1. The plea (notice) of recoupment Is in the nature of a declaration in a cross-action for damages arising from a breach of the contract, under which the plaintiff's claim for, damages arises, and, while it need not be as formal as a declaration, it must be so specific as to inform the plaintiff of the nature of the damages, and must specify the breaches complained of. Roethlce if. Philip Best Brewing Co., 33 Mich. 341; Bolt v. Friederich, 56 Id. 22.</p> <p>2. While a more liberal rule is applied in testing the sufficiency of pleading in justice’s than in the circuit court, the nature of the claim of the parties litigant must be stated' in such manner as to show a cause of action, and with sufficient certainty to prevent surprise of the other party as to what he will be called upon to meet with his proofs; and the plea (notice) of recoupment comes within this rule. Ritter v. Daniels, 47 Mich. 618.</p> <p>3. “ An account stated means a balance struck between the parties on a settlement; and where a plaintiff is able to show that°the mutual dealings which have occurred between the parties have been adjusted, settled, and a balance struck, the law implies a promise to pay that balance.”</p> <p>4. An account stated need not of necessity be in writing.</p>

<p>Negligence — Defective way across depot grounds — Hole proximate to traveled path — Evidence—Failure of party to produce witness — Comment of counsel.</p> <p>1. It is the duty of a railway company to keep in a reasonably safe condition a recognized way used by the public in going to and from its depot.</p> <p>2. A hole so near a recognized way, used by the public in, going to and from a railroad depot, that a man in the “ordinary aberrations of travel ” might fall into it, should be guarded by the company to prevent such an accident.</p> <p>3. The testimony of a civil engineer in a negligence case that a hole near a traveled way “ was a dangerous place, and needed protection,” falls within the rule laid down in Laughlin v. Railway Co., 62 Mich. 220, and is competent.</p> <p>4. While counsel has the right to make proper comments to the jury upon the absence of a material witness for the opposing party, he cannot call upon the court to instruct the jury that such absence militates against such party.</p>

<p>Intoxicating liqudrs — Right of action in favor of one injured by intoxicated person — Declaration—Contributory negligence— Sale to minor — Constitutional law — Title of act.</p> <p>1. Under the statute giving a right of action to “ every wife, child, parent, guardian, husband, or other person,” injured by an intoxicated person, the words “or other person” were intended to cover all persons so injured.</p> <p>2. The law prohibits the sale of liquor to a minor, without reference to the wishes of his parents ; and proof of his emancipation, or of the wish of the parents that such sale should be made, is no defense in a suit by a stranger to recover damages for injuries sustained by reason of the intoxication of such minor.</p> <p>8. Under a declaration averring the sale of “ spirituous and intoxicating liquors, to wit, whisky,” to a minor, the plaintiff is not confined in his proofs to that particular intoxicant.</p> <p>L The title to Act No. 259, Laws of 1881, “to provide a remedy against persons selling liquor to husbands or children in certain cases,” is not open to objection as embracing more than one object, and the word “children” in said title includes all minors.</p> <p>6. Turning to the right of a highway, by a driver, to avoid a collision with an approaching team driven in a reckless manner, is not contributory negligence on the part of the driver, even though such collision might not have occurred had he not thus turned.</p>

<p>Error to Huron. (Beach, J.)</p> <p>Beplevin. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Kalamazoo. (Mills, J.)</p> <p>Bill filed to abate an illegal nuisance, etc.</p> <p>The facts are stated in the opinion.</p>

<p>Fraud — Pleading—Intent of party malting representations — Evidence.</p> <p>1. It is probably true that, where fraud is not alleged, it cannot be proved, but it is not true that in all cases where fraud is alleged it must be proved.</p> <p>2. In equity an actual design to mislead is not necessary if a party is actually misled by another in a bargain, and there is no reason for a difference in action in such cases between courts of law and courts of equity.</p> <p>3. The doctrine is settled in this State that if there was in fact a misrepresentation, though made innocently, and its deceptive influence was effective, the consequences to the plaintiff being as serious as though it had proceeded from a vicious purpose, he would have a right of action for the damages caused thereby either at law or in equity. Converse v. Blumrich, 14 Mich. 109; Steinbaeh v. Hill, 25 Id. 18; Beebe v. Knapp, 28 Id. 53; Webster v. Bailey, 31 Id. 36; Starkweather v. Benjamin, 32 Id. 305; Baughman v. Gould, 45 Id. 483.</p> <p>4. An averment in a declaration, in an action for misrepresentation as to the value of land, that it was represented as of a certain value, is proved by proof that it was said to be of that value for any purpose.</p> <p>5. Where the representations of value of lands are all in one written paper, and closely connected, and it is impossible to show part without showing all, the paper is admissible as a whole, and cannot be received in evidence in any other way.</p>

<p>Attorney and client — Fees for professional services — Expert testimony — Cross-examination—Striking out testimony in chief — Practice in Supreme Court — Error— Excessive verdict.</p> <p>1. It is not the province of this Court to set aside verdicts upon the ground that they are excessively large or small, that being a discretionary power, residing, under our practice, with the circuit judge.</p> <p>2. The only questions reviewable on writ of error and bill of exceptions are those of law, which have been passed upon by the trial court.</p> <p>3. The fact that an estate has been settled may exist, and not be shown by the proceedings in the probate court; and it-is not necessary to produce such proceedings to prove such fact as a collateral matter.</p> <p>4. It is the duty of an appellant to show error affirmatively and conclusively, and every presumption is in favor of the validity and regularity of the action of the court below, and will be applied in support of the judgment.</p> <p>5. Where the record is contradictory, and by taking a detached portion error might be made to appear, yet if, by taking another portion which contradicts the one first considered, the judgment can be maintained, it is the duty of the Court to give effect to this latter portion instead of oyerturning the judgment.</p> <p>6. The hypothetical question put to the expert witnesses does not, • when rightly construed, and as understood by them, as gathered from their answers (see opinion), call for any opinion upon tnevalue of services other than those pertaining to the practice of law, and giving legal advice.</p> <p>7. It has been settled by this Court that testimony given upon a legitimate cross-examination is treated as evidence in behalf of the party calling the witness. Gampau v. Dewey, 9 Mich. 381, 418; Wilson v. Wager, 36 Id. 458; Sehratz v. Sehratz, 35 Id. 485; . Bennett v. Smith, 40 Id. 211.</p> <p>8. The fact that the answer of a witness to the main question put to-him is stricken out does not authorize the striking out of his-cross-examination if competent and relevant.</p> <p>9. The end and purpose. of testimony in legal proceedings is to-arrive at the truth of the issues between the parties, and the tendency of the courts is to permit the introduction of any testimony which will tend to throw light upon the merits, and aid in a correct solution of said issues.</p> <p>10. It is no reason for rejecting or striking out the cross-examination of a witness (if competent and relevant) that he has not given any testimony in chief, or that his testimony in chief has been stricken out.</p> <p>11. Where testimony is taken by deposition, and the main question put to witness is incompetent, — as where it calls for parol evidence of the contents of a deed, and the witness is cross-examined as to such contents, — it is proper to strike out the question and answer, for the reason that such method of proof is incompetent.</p> <p>12. In a suit for professional services, the testimony of expert witnesses stands upon the same plane as testimony in other cases, and is to be weighed by the jury to aid them in coming to a conclusion as to such valúe, if they are satisfied with such testimony.</p>

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

<p>Error to Alpena. (Emerick, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion in Kelley v. Richardson, 69 Mich. 430.</p>

<p>Error to Shiawassee. (Newton, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are .stated in the opinion found in 64 Mich. 239.</p>

<p>Assault and battery — Parties engaging in fight by agreement— Charge to jury.</p> <p>1. In a civil suit for assault and battery, on the trial of which the defendants’ theory was that the fight was had by mutual agreement of the parties, in the absence of any testimony tending to show that the defendant was guilty of excessive cruelty, or of unnecessary and excessive beating, intending to do the injury complained of, it is error for the court to instruct the jury that they were at liberty^tp so find from the evidence.</p> <p>■¿. Where a father and his two sons were sued civilly for assault and battery, and the evidence showed that the father was not present until the injury complained of was inflicted, and there being no testimony tending to show a previous understanding or concert of action to assault and beat the plaintiff, it is error for the court to submit that question to the jury.</p>

(Montgomery, J., presiding.) Bill filed to set aside a drain tax, and for other purposes. The facts are stated in the-opinion.

<p>Public lands — Swamp-land act — State patent — Navigable waters— Right of hunting and fishing.</p> <p>1. The act of Congress of date September 28, 1850, granting land to the state of Arkansas and otherstates, popularly known as “The Swamp-land Act,” conveyed to the states, respectively, in fee all lands within the purview of the act, and such title in fee became ‘ vested in the state from the date of the act.</p> <p>2. A patent subsequently issued for such land is simply evidence of the grant, and not of the date such grant took effect.</p> <p>3. Reservations for light-house purposes cannot be made by the Commissioner of the General Land-office after the act of September 28, 1850, became a law, from the lands granted by that act.</p> <p>4. Lands lying in the State of Michigan which belonged to the United States at the date o£ the passage of the act of September 28, ■ 1850, and which came within the class of swamp and overflowed lands referred to in that act, became the property of the State of Michigan, and any change in the condition of such lands afterwards from natural causes, whether they become dryer or more overflowed, could not deprive the State of its title to such lands. Consequently, if after such grant the waters of the Great Lakes made, through natural causes, inroads upon portions of such lands, and forced the shore lines inward, the soil under the water remained the property of the State, and subject to its control and disposition. In this respect the State, in virtue of its sovereignty over its domain, is unlike an individual. A grant from the State to an individual of such submerged and overflowed land conveyes the title of such land to such grantee. Especially is this so with respect to the swamp and overflowed lands granted to the State by the act of Congress.</p> <p>6. Where such lands are granted to, and in the hands of, private owners, and have been encroached upon by the navigable waters of the Great Lakes, until such owners construct dykes or levees which prevent, there is an implied license to the public to enter upon and use and navigate such waters, and to exercise all the rights incident to navigation.</p> <p>■6. In this State every person, of whatever rank or station, has an equal right of taking, for his own use, all creatures fit for food that are wild by nature, so long as he does no injury to another’s rights.</p> <p>7. Every person has a right of shooting and capturing wild fowl in any place where he has a right to be, if he does not infringe upon the rights of another having a better right.</p> <p>•8. The owner of the fee of land, whether it be upland or covered with water, has the exclusive right of fowling upon his own land.1</p>

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

Joseph. (Pealer, J.) Bill filed to set aside proceedings establishing a drain, etc. Complainant appeals. The facts are stated in ■the opinion.

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

<p> Principal and agent. </p>

<p>Chattel mortgage — Failure to file — Good, faith of subsequent incumbrancer — Notice,</p> <p>1. This Court has never held that the mere failure of a creditor, at time of taking a mortgage, to inquire of the debtor as to prior (unrecorded) incumbrances or conveyances, will charge such creditor with notice of their existence.</p> <p>So held, where debtors sent for ceitain creditors, whom they had> promised to secure in case of financial embarrassment, at ten o’clock at night, and told them that they were liable to have trouble, and wanted to give them a chattel mortgage on their stock of goods, which was done, and the mortgage recorded early the next morning, soon after which a prior mortgage executed on the same day was recorded, of which the subsequent mortgagees had no knowledge at time of taking their security, but made no inquiry of the mortgagors as to prior incumbrances, their mortgage containing, however, a covenant against such hens.</p> <p>2. Where the fact of a prior conveyance or incumbrance is brought to the knowledge of a subsequent purchaser or incumbrancer, he must be held to take subject thereto, or, when such circumstances are shown to have existed as would put an ordinarily prudent business man upon inquiry, he is charged with notice of sucli facts as upon inquiry he could have ascertained; but where circumstances alone are relied on, with no proof of actual knowledge, they must be of such a character that failure to make the inquiry amounts to bad faith. Larzelere v. Stark-weather, 38 Mich. 96; Sheldon v. Holmes, 58 Id. 138; Oliver v. Sanborn, 60 Id. 346; Ferguson v. Glassford, 68 Id. 36.</p> <p>3. Mere suspicion or supposition by creditors, at time of taking a mortgage upon their debtor’s stock of goods, that he was financially embarrassed, or that he expected attachment suits, will not constitute notice of a prior unrecorded mortgage on said stock, so as to give a right of action to such prior mortgagees.</p>

<p>Certiorari — Affidavit for writ — Railroad condemnation proceedings —Petition—Inability to secure title by purchase— Evidence of value.</p> <p>1. On certiorari no errors are considered which are not made a ground for the allowance of the writ. People v. Hobson, 48 Mich. 30; Witherspoon v. Clegg, 43 Id. 485.</p> <p>2. Questions which do not go to the jurisdiction pf the court to entertain railroad condemnation proceedings, and which can as w<ell be raised on appeal, should not be brought up by certiorari. Dunlap v. Railway Co., 46 Mich. 191; Railroad Co. v. Backus, 48 Id. 683.</p> <p>3. The fact of the inability of the railroad company to acquire title amicably to lands needed for right of way is jurisdictional, and must be alleged, and may be controverted. Railroad Co. v. Sanford, 23 Mich. 418.</p> <p>4. An averment in a petition to condemn land for railroad purposes that the petitioner has not been able to acquire title by agreement with the owner for the purchase of the land, for the reason that'such owner asks what the petitioner considers an unreasonable price, and refuses to accept the reasonable sum offered by the petitioner, is sufficient.' Railroad Co. v. Benham, 28 Mich. 460.</p> <p>5. Where the answer of the respondents to a petition to condemn land for railroad purposes denies that the petitioner had sought in good faith to acquire title by purchase, or that the respondents had demanded an unreasonable price for the land, it is error for the court to exclude testimony offered by the respondents to show the value of the land in support of such denial.</p>

<p>Appeal from Livingston. (Newton, J.)</p> <p>Bill filed to enforce specific performance of contract. Defendant Horace Hains appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Schools and school-districts — Teacher's contract — Certificate of State Normal School — Estoppel of district.</p> <p>Where a teacher was paid for teaching a portion of the term contracted for, both before and after the filing by her with the proper officers of the certificate issued to her as a graduate of the State Normal School, which she had in„her possession when the contract was made, and so advised the district board, and before the end of her term the school-house burned down, and the district board refused to provide another, although requested so to do by the teacher, who held herself in readiness to complete the term contracted for, and made no effort to secure another school (it being out of the season to obtain the same), or to find other employment, the school-district is estopped from claiming that she was not a qualified teacher when contracted with, and she can recover the same as if she had actually taught until the end of her term.</p>

<p>Equity practice — Cross-bill—Affirmative relief — Dismissal of original bill — Mandamus.</p> <p>1. Chancery rule No. 123, which obviates the necessity of filing a cross-bill, and authorizes a defendant by his answer to present the facts upon which his equity rests, does not relieve him from stating such facts with the same particularity and certainty as if he had resorted to a cross-bill under the former practice, and he must state in his answer a case for equitable relief touching the matter in question in the original bill.</p> <p>2. In our practice a cross-bill is considered as a mere dependence upon the 'original bill, and, when the matter set up is simply a matter of defense, it is disposed of by a dismissal of the original bill.</p> <p>So held, where a defendant in his answer claimed affirmative relief under chancery rule 123, but the allegations were insufficient to form a basis for such relief (the facts set up being admissible, without a cross-bill, to defeat complainant’s alleged title), and after joining issue the complainant entered an order dismissing his bill, which the court refused to vacate, and a mandamus asked for by defendant to compel such action was denied.</p> <p>3. Where a bill is filed by a party in possession of real estate for equitable relief, a cross-bill will not lie for the purpose of obtaining possession, which is the proper object of an action of ejectment.</p>

<p>Mandamus — Schools and school-districts — Employment of teacher not having proper certificate.</p> <p>1. Mandamus is a discretionary writ, and will be allowed only in furtherance of justice and upon a proper case presented. It will not be allowed where it is apparent that it is applied'for to gratify the spite of a private individual, nor where the relator has instigated, authorized, or approved the act complained of.</p> <p>2. The liability of a school-district to pay a teacher for services * 1 actually rendered has been maintained in the following cases: Stoclcdalev. Sehool-dist., 47 Mich. 226; Crane v. Sehool-dist., 61 Id. 299.1</p> <p>3. The general policy of the school law is that schools shall be taught by qualified teachers, but necessities may arise where this cannot be done; and when such necessity arises, the district is ’ authorized to employ a teacher who has not the proper certificate, if the school board are satisfied that he or she is otherwise qualified, and to pay such teacher out of the moneys belonging to the district, except the primary-school money and mill tax, which cannot be applied to that purpose.</p> <p>4. In this case the return (see statement of facts) is held to show such a necessity.</p>

293, Laws of 1887, for a recount of the votes cast for major of the city of Grand Eapids. The facts are stated in the opinion.

<p>Application for mandamus to compel respondent to take jurisdiction of and try cases for a violation of Act No. 129, Laws of 1887, prohibiting the carrying of concealed weapons.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Application for mandamus to compel respondent to try a. case arising under How. Stat. § 2203, for the protection of game.</p> <p>The facts are stated in the opinion.</p>

<p>Intoxicating liquors — Illegal sales by druggist — Information— Constitutional law.</p> <p>1. Section 3 of Act No.' 313, Laws of 1887, in so far as it punishes a druggist for a violation of its provisions by fine and imprisonment, is constitutional, but the provision forfeiting his business for a second offense is unconstitutional. Robison v. Miner, 68 Mich. 549.</p> <p>3. The statute (section 3 of Act No. 313, Laws of 1887), prohibits the sale of liquor by a druggist to any person, to be used as a beverage, and it is unnecessary to aver, in an information for a violation of its provisions, the quantity sold, or whether the sale was at wholesale or retail.</p> <p>3. Under an information charging a druggist with selling liquor at retail without paying a retail dealer’s tax, if it appear on the trial that the sale complained of was at wholesale, and that he had paid the tax imposed .upon such a dealer, he cannot be convicted.</p> <p>4. An information charging a druggist with the sale of whisky at retail, to be used as a beverage,1 without the payment of a retail liquor dealer’s tax, and negativing the making of such sale for any of the purposes permitted to druggists, is not bad for duplicity.</p> <p>■5. If a druggist desires to sell liquor in any other way than that prescribed for druggists, he must comply with the liquor tax law, the same as an ordinary liquor seller; and if he fails so to do, and yet sells liquor as a beverage, he must accept the consequences and penalties of the statute, severe though they may be.</p> <p>The fact whether or not a druggist, prosecuted for selling liquor as a beverage, kept a record of sales, has nothing to do with any of the necessary allegations in a complaint for the offense charged, such record being required for the entry of lawful sales.</p>

<p>Planic-road company — Negligence—Failure to ereet barrier along highway — Contributory negligence — Questions of fact — Evidence.</p> <p>1. The defendant, in accepting its franchise, assumed thp duty of keeping its way in repair, and its charter, when made was subject to all future reasonable and proper police regulations enacted for the protection of the lives and health of the people, and the prevention of injury thereto.</p> <p>3, Direct or c inclusive evidence is never necessary to show the exercise of reasonable care. If the circumstances out of which the injury or act complained of occurred tehd to show such care, the question of its exercise is for the jury, and it mu it be an extraordinary case that will justify the court in taking it from them.</p> <p>3, Upon the facts of this case the degree of care defendant was called upon to observe was snch as to include acts of omission as well as commission, and made preventive action necessary. When the danger is such as to imperil human safety, the care required is such as may be reasonably regarded as'sufflcient to prevent the probability of mischief.</p>