Volume 7 — Michigan Reports

Question reserved from • St. Clair Circuit in Chancery. Defendant had interposed a plea to the hill of complaint, and the Circuit Judge reserved, for the opinion of this court, the'question whether the matters pleaded constituted in law a bar to the bill of complaint.

The action was originally brought by Tower in Justice’s court, where he recovered judgment, which was removed to the circuit court by certiorari, and there reversed. The allegations of error in the affidavit for certiorari were, first, that the service of the summons on the Railroad Company, in the court below, was irregular and void; second, that the judgment was against the evidence.

Appeal in chancery from Saginaw Circuit, where decree was given for complainant. The pleadings and testimony in the case are so fully stated in the opinion, that it is deemed unnecessary to give any further abstract of them.

Appeal by complainant, from Calhoun Circuit in Chancery. The bill alleges that, on May 3d,' 1836, George Ketch-am, to secure to George Fetterman the purchase price of certain premises in Calhoun county, executed to the latter his bond for $8,000, payable, with interest, in eight equal annual instalments, and secured the same by collateral mortgage on the premises purchased: That Fetterman subsequently became insolvent, and a creditor’s bill was filed against him in the Court…

Appeal in Chancery from Wayne Circuit. '■ The bill alleges that, on November 5th, 1855, John C. Baughman, and John E. King, as principals, and Bela Hubbard, as surety, gave to James L. Lyell a bond in the penal sum of $20,000, conditioned for the payment of $10,000 in one year from the date thereof; that, in order to secure the payment of said bond, Baughman and King gave to Lyell a mortgage on premises described as all that piece or parcel of land situate in Springwells,…

Eowler sued the railroad company before a justice of the peace, and recovered judgment. The defendants removed the cause to the circuit court by certiorari.

Petition for a mandamus. The petition sets up: That, by an act of the Legislature of the state of New York, of April 12th, 1853, the relators were incorporated, and authorized to construct the St. Mary’s Falls Ship Canal, in pursuance of the laws of Congress and of Michigan in that behalf: That, by the act of the Legislature of Michigan of February 5th, 1853, the grant of lands by the national government for the construction of said canal was accepted, and the appointment of…

Case reserved from Jackson Circuit. Blair and Gibson were summoned by plaintiffs as garnishees of one Smith.

Case reserved from Monroe Circuit. Action of replevin to recover possession of a stock of goods. Declaration in the nsnal form, to wMcb the general issue was interposed by the defendant. The case was tried at the 1 February term of said court, 1859, the Hon. B. F. H. Witherell, circuit judge, presiding.

The bill was filed by John P. Cook and Henry Waldron, to restrain the corporate authorities of Hillsdale village from opening a street across their mill lot in said village, and from building a bridge over their mill race on said lot. The lot embraced a single acre, lying partly on each side the line dividing the north and south halves of section twenty-six in said village.

The bill was filed by Myron Gates and his wife, March 29th, 1856, to set aside a note-of $825, given February 20th, 1856,to defendant by complainant Myron, and a mortgage, made by both complainants, to secure said note. These securities the bill alleges, were given for no consideration whatever, and were obtained by fraud, duress and compulsion.

Appeal by defendant Wessel from -the Ingham Circuit in Chancery, where decree was made as prayed in the bill. The evidence in the case was voluminous, but that, together with the pleadings, is sufficiently stated' in the opinion for an •understanding of the legal questions.

George Jerome and Robert P. Toms, brought replevin against Bagg in the court below, for a stock of liquors. Defendant pleaded the general issue, and gave notice in justification that he took the liquors under an execution against one Lewis M. Bayless, whose property he alleged them to he.

D. JB. Duffielcl moved to dismiss the writ of error for want- of prosecution.

Case reserved from St. Clair Circuit. On the fourth day of February, 1859, defendant was indicted in the Circuit Court for the county of… Held: then and there his malice aforethought, did discharge and shoot off, to, against, and upon the said Henry Jones, and that the said William Tyler, with the leaden bullet aforesaid, out of the pistol aforesaid, then and there, by force of the gunpowder aforesaid, by the said William Tyler discharged and shot off as aforesaid, then and…

Case reserved from Wayne Circuit. Replevin for a barrel'of copper, which plaintiff claimed as assignee of the Forest Mining Company. The defendants jxtstified under a judgment rendered against said Mining Company, by a justice of the peace of Detroit, and under execution issued thereon.

The action was originally brought by Wilson against Hosmer & Kerr, in Justices’ court.

The writ was sued out by Holbrook & Bishop as attorneys for Cornelius O’Flynn and Daniel Finn, as plaintiffs in error, returnable April 5th, 1859, and was duly returned. Assignment of errors was filed May 28th, 1859.

<p>The Court will not set asido a writ of error for want of a proper return, after the lapse of several years, during the most of which time the papers have been in possession of counsel for defendant in error, and joinder in error filed while the counsel had thb return in his hands.</p>

<p>An affidavit stating tliat both, defendants in attachment reside in Hew York, and have not resided in Michigan for three months, will be construed to refer to the defendants, and each of them, and is sufficient.</p> <p>Bince the amendatory act of 1850 (Oorrvp. L. §á04), the deputy county clerk has general authority to perform the duties of his principal. And, therefore, an affidavit for attachment sworn to before him is good, though it does not appear that the clerk was absent at the time.</p> <p>An assignment by the sheriff to the plaintiff of an attachment bond is a thing which the plaintiff may require as a matter of right, and is valid if signed by the sheriff, though not in his name of office.</p> <p>It is no defense to an attachment bond, on which property has been delivered by the sheriff to the bondsmen, that the property did not belong to the defendants in the attachment, or was encumbered. Parties bonding property under the statute, must take it on the statutory conditions.</p>

<p>Case reserved from Wayne Circuit. .</p>

Case reserved from the District Court of the Upper Peninsula for the county of Mackinac. Pero brought action of replevin before a justice of the peace, against Overall, for certain fish nets. Overall justix fied taking the nets by virtue of an execution issued on a judgment rendered by Mr. Geary, another justice, against Pero, in favor of one O’Mally. On the trial, the record of this judgment was offered in evidence by defendant.

Ebenezer Davis and Alonzo W. Davis brought suit against Shaw, declaring in assumpsit on the common counts for work and labor performed, and money paid laid out and expended for him.

<p>Case reserved from Saginaw Circuit. The facts are sufficiently stated in the opinion.</p>

The action was assumpsit, brought by Lester against Sutton, to recover a charge for commissions in purchasing lumber. On the trial, to show that the lumber was not, in fact, purchased on his account, defendant introduced in evidence two letters from plaintiff to Silliman & Has well, dated June 3d and 13th, 1856, the latter purporting to be in.answer to a letter from them to him, of June 9th, 1856.

<p>No agent íot the service of papers can bo recognized' under the rules, unless residing at Detroit or Lansing.</p> <p>When notices are served upon the agent of an attorney, the distance of the attorney’s residence from the place of holding the court will determine the time for which notice must bo given, and not the distance of the agent’s residence from the court.</p>

Appeal in chancery from Wayne Circuit, where the demurrer of Caroline Payne to tbe. bill of complaint was sustained, and tbe bill, as to her, dismissed. The case is sufficiently stated in the opinion.

This action was originally commenced by complaint, under chapter one hundred and fifty of the Compiled Laws, entitled, “ Of proceedings to recover possession of land in certain cases,” before Thomas S. Blackmar, a circuit court commissioner for Wayne county, and against the defendant, as tenant, for holding over the land in question against the covenants of the lease under which he held the same, and after the time for which they were let to him had expired.

On the 25th of April, 1859, Hinchman presented to said commissioner a petition, setting forth that plaintiffs in error had sued out of the circuit court for said county a writ of attachment against the property of himself and one Adams, upon an affidavit which was untrue in certain specified particulars, and that said attachment had been levied upon lands of the petitioner; wherefore he prayed that the plaintiffs therein might be cited to show cause why said attachment…

Parker brought assumpsit in the court below, against plaintiffs in error, declaring upon the common counts, and upon a note for $532,22 made by defendants September 1st, 1856, due, with interest, on demand.

Soon after tbe passage of tbe “Act to provide for tbe Sale of tbe Swamp Lands, and tbe Reclamation thereof, and to secure tbe Pre-emption claims of Settlers thereon,” approved February 4th, 1858, tbe then commissioner of tbe State Land Office issued a circular of directions to persons making application for tbe benefit of tbe act, and giving a construction to its provisions.

<p>Bill by assignee of mortgage to foreclose tbe same. A subsequent encumbrancer made a party defendant, answered, setting up tbe defence of usury. Tbe mortgagee was sworn as a witness, and testified that tbe mortgage was made to bim, and assigned to complainant at tbe request of one of tbe mortgagors, and without any consideration moving from or to bim for tbe mortgage or assignment. — Keld, that this evidence cast upon complainant tbe burden of proof to show a consideration for tbe mortgage, and that, in tbe absence of any further evidence, tbe bill should be dismissed' as to such subsequent encumbrancer.</p>

Niles & Van Anden brought suit in tbe court below, against Rhodes, for the price of a bill of liquors. On the trial, to prove their ' case, they called Charles P. Crosby, who testified as follows: “I am the attorney of Niles & Van Anden, the plaintiffs in this suit. On or about the twentieth day of November, a. d. 1857, I called the [defendant John B. Rhodes, into my office in this city, and called his attention to a bill which I now hold in my hand, and asked him to pay it.

Appeal by defendant from the Oakland Circuit in chancery. The bill was filed February 14th, 1854, to compel the specific performance of a parol contract for the conveyance of some six or seven acres of land, which, complainant alleges, lie bargained for to give him access to the Saginaw turnpike from a forty acre lot he was about to purchase in the rear.

Smith brought action against Gardner, who was contractor for constructing the Detroit, Monroe & Toledo Railroad, and declared against him, for that he entered upon a certain close and premises of plaintiff, “and proceeded to grade and build the said railroad in, over, and across the same, and thereupon it became, and was, the duty of the defendant to erect and maintain lawful fences in, upon, and across said close and premises, on each side of the line and route of said…

Hull brought action in justices’ court against Joseph Achey and William Lapplar, and declared in trespass as, follows: “ The plaintiff complains of the defendants of a plea of trespass, for that [the defendants, on the first day of December, a. d. 1856, and on divers other days and times be-* tween that day and the commencement of this suit, with force and arms, and contrary to the provisions of chapter 3, of title 111, of the Revised Statutes of this state, enti-* tied “ Of…

On exceptions from the Recorder’s Court of the city of Detroit. The defendant was convicted in the Recorder’s Court, on an information charging him with obstructing a public alley in Detroit.

Petition for habeus corpus. The petition set forth: That petitioner was restrained of his liberty by the sheriff of Wayne county, by virtue of a pretended warrant issued by T. S. Blackmar, circuit court commissioner for Wayne county, authorizing his arrest and imprisonment for refusing to testify as a witness in a cause pending in the Supreme Court of New York, wherein a commission had been issued to T. W. Lockwood and Horace Hunt, Esqs., to take his testimony: That…

The return to the writ of error was filed in this court April 1, 1859, from which it appears that judgment was rendered in the court below, November 26th, 1858, against plaintiff in error. The declaration was in assumpsit on the common counts only, and judgment taken by default. Errors were assigned May 24th, the principal» one being that the damages were assessed in the court below by the clerk, instead of by the court or a jury.

Little declared - against Hoard in the court below as follows: “For that the defendant, on the fifth day of October, A. D. 185Y, was indebted to the plaintiff in the sum of four hundred dollars, for the price and value of goods then sold and delivered by the plaintiff to the defendant, at his request. And in a like sum for the price and value of work then done, and materials for the same, provided by the plaintiff for the defendant, at his request.

Plaintiff in error was arrested and brought before the commissioner, on two separate complaints, under chapter 166 of Compiled Laws, known as the Fraudulent Debtor’s Act, in each of which he was charged by complainants, who had brought 'suit against him in the Wayne Circuit Court, with having fraudulently contracted debts with them, in the state of Massachusetts, and with having afterwards made a fraudulent assignment of his property in Wisconsin, on the pretence of…

Questions reserved from Wayne Circuit, in Chancery. Luther Beecher, filed Ms bill of complaint against Peter Baldy, William Jennison Jr., Edward V. Cicotte, and Francis X. Cicotte, setting forth that Peter Baldy, on the fifteenth day of April, 1858, recovered a judgment against complainant in the Circuit Court for the county of Wayne, for the sum of one thousand dollars and costs, which judgment was recovered upon a debt incurred April 25th, 1857, and is still unpaid: that…

Case made after judgment from Lapeer Circuit. The action was brought upon a judgment, rendered by a justice of the peace of Lapeer county; and upon a trial in said circuit court, judgment was rendered for the defendant in the court below; and the finding of the court upon the trial was, by the stipulation of the parties, turned into a case made, for review.

Joseph Circuit, where action was brought by Shurtz against the railroad company, for the value of certain wheat. The declaration was in substance, as follows: First Count.

<p>Tho courts will not infer a dishonest meaning from a written instrument, whore an honest one is possible, and consistent with tho whole tenor of the instrument.</p> <p>A chattel mortgage of a stock of goods, which leaves the mortgagor in possession» and by inference authorises him to sell in the usual course of business, is good between the parties, and not necessarily fraudulent as to creditors.</p> <p>Being good between tbe parties, sucb a mortgage could not be fraudulent on its face against creditors, since it would not show there were any creditors, or if it it did, it would not appear b\it that they had assented to it, or were them-* solves sufficiently secured.</p> <p>A creditor who does not show that he was such at the time of the giving of such a mortgage, is not in position to attack it as fraudulent, on the ground that it allows the mortgagor to remain in possession and dispose of the mortgaged prop** erty.</p>

The bill was filed by complainants, who composed the firm of John A. C. Gray & Co., against Norman J. Emmons, John H. Van Dyke, and James V. Campbell, to have given up and cancelled an indemnity bond given by complainants to Emmons & Van Dyke, and which the latter, through Campbell as their attorney, were seeking to enforce, by suit at law in the Wayne Circuit Court.