Volume 70 — Michigan Reports

(Arnold, J.) Assumpsit on fire insurance policy. Defendant brings error. The facts are stated in the opinion and head-note.

(Montgomery, J.) Kespondent was convicted of unlawfully holding himself out to practice medicine, etc., and fined five dollars and costs of prosecution, and the judgment was affirmed. The facts, and points of counsel, are stated in the opinion.

<p>Appeal from Clinton, (Newton, J., presiding.)</p> <p>Judgment creditor’s bill.</p> <p>The facts are stated in the opinion.'</p>

Certiorari. The order of the circuit judge dissolving an attachment is affirmed. The facts are stated in the opinion.

<p>Fraudulent conveyances — Attachment — Non-resident defendant — Filing declaration,</p> <p>1. Only a judgment creditor can maintain a bill to set aside the debtor’s deed because fraudulent as to creditors.</p> <p>2. Proceedings in an attachment suit against a non-resident defendant who does not appear may be attacked collaterally. Granger v. Judge of Superior Court, 44 Mich. 384; King v. Harrington, 14 Id. 532; Millar v. Babcock, 29 Id. 526.</p> <p>3. Filing a declaration in an attachment suit prior to filing proof of publication, where the defendant is a non-resident and does not appear, renders the judgment taken in such suit void. Steere v, Vanderberg, 67 Mich. 539.</p> <p>[The points involved in the case, as decided, are so fully discussed, and the authorities cited so conclusive, that a summary of the briefs of counsel is omitted. — Reporter.]</p>

<p>Error to Manistee. (Judkins, J.)</p> <p>Assumpsit on a “ Paisley-shawl Note.” Plaintiffs bring error.</p> <p>The-facts are stated in the opinion.</p>

<p>Husband and wife — Divorce.—Collusion.</p> <p>1. How. Stat. § 6232, is based upon public policy, which forbids the annulment of the marriage contract by the agreement of the parties.</p> <p>2. An agreement by a wife to accept $500 in satisfaction of all her claims, as wife or widow, in her husband’s property, which are released to the husband, coupled with her agreement that, in case he institutes proceedings to obtain a divorce, she will put him to no additional costs, and make no claim for alimony, but support herself without expense to him after the execution of such agreement, is collusive, and a fraud upon the court in which such proceedings are thereafter commenced.</p>

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

<p>Highways — Encroachment—User—Evidence,</p> <p>A. This is an action of trespass for the alleged unlawful destruction of plaintiff’s fence by a highway commissioner, who claimed that it was an encroachment upon a public highway, and the Court hold that the defendants’ testimony tended to show the existence of such highway by user.</p> <p>;2. The absence from the proper township records of an order of the commissioners laying out a highway in accordance with a survey found in the records, purporting to be a copy of the field-notes of the survey of said road, is cogent proof of a negative character that the road has not been laid out.</p> <p>U. Highways by user are based upon the implied dedication of the land by the owner; and, where there is nothing to indicate a contrary intention, the presumption is that the owner intended .to dedicate the land to the full legal width (Bumpus v. Miller, 4 Mich. 159), which contrary intention is indicated by the owner’s ■placing fences or other means within the statutory width during the time the statute is running, in which case the public is only entitled to claim the part which it has been permitted to use.1</p>

(Reilly, J.) Action on the case to recover the amount of a judgment against the city on account of a defective sidewalk of adjacent land-owner. Plaintiff brings error. The facts are stated in the opinion.

<p>Trespass to the person — Ravishment—Evidence.</p> <p>1. In an action for trespass to the person of the plaintiff, the defendant being charged in the declaration with an assault and battery, accompanied with very aggravated circumstances of ravishment, resulting in pregnancy, etc., it is not necessary for the plaintiff to show that the assault was committed with such force and violence as to constitute the crime of rape, nor need she establish any fact in her case by more than a preponderance of the evidence • to enable her to recover.</p> <p>2. Under the testimony presented in the bill of exceptions, the charge of the court is held to have been fully warranted.</p> <p>[The points of counsel are stated in the opinion.— Reporter.]</p>

Mandamus. Eelator applies for a mandamus to compel respondent to vacate an order setting aside an execution and vacating a sale made thereunder. The facts are stated in the opinion.

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

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

<p>Libel and slander — Evidence as to character — Animus—Husband'! and wife — Communications during marriage — Effect of subsequent divorce — Practice in circuit courts — Argument of counsel — Mitigation of damages.</p> <p>1. It is not competent for a plaintiff in a slander suit to introduce • evidence of his good character as a part of his main case, even though upon his cross-examination he has been inquired of concerning specific facts which, if true, would tend to weaken it, and lessen his good reputation.</p> <p>2. Where, in a slander suit, the plaintiff testified to a bitter feeling on the part of the defendant towards him growing out of divorce proceedings between plaintiff and his wife (defendant’s daughter), he may be cross-examined on that subject, and as to his alleged threats that he would get back a portion of the money he had been decreed to pay, counsel for defendant claiming that - the slander suit was brought for that purpose, and such cross-examination being competent to show the animus, motive, and bias of the witness.</p> <p>3. A plaintiff cannot be cross-examined as to communications made-by him to his divorced wife during marriage, nor can she testify thereto. Maynard v. Vinton, 59 Mich. 151, 152.</p> <p>4. Where a witness for a defendant in a slander suit was questioned with regard to a conversation with the plaintiff, in ■ which he requested the witness to get the defendant drunk, etc., with the evident intent of proving that the time of getting him drunk related to the then trial, and before the witness answered as to such time counsel for plaintiff requested permission to ask if the conversation referred to the suit on trial, which was refused, and the witness allowed to answer, but failed to connect the conversation with said suit, such refusal was error, which was intensified by permitting defendant’s counsel to comment upon such testimony to the jury.</p> <p>5. In a suit for slander in charging the plaintiff with burning the defendant’s barn, it is competent to show, in mitigation of damages, the threats of the plaintiff to burn it, if communicated to • the defendant before speaking the alleged slanderous words, as tending to show that defendant had good reason to believe the-truth of his accusation.</p> <p>[The points of counsel and authorities cited are stated im the opinion. — Reporter.]</p>

<p>Stock subscription — Liability of signers.</p> <p>The contract in this case (see opinion) is held to be several, and each subscriber liable for the amount of his subscription. No other question is involved.</p>

<p>Highways — Encroachment—Notice denying existence of highway —Plea of title — Costs.</p> <p>The occupant of land charged with an encroachment upon a highway is not called upon to serve upon the commissioner a notice denying the existence of such highway until after he is served with a copy of the commissioner’s order for the removal of the alleged encroachment; and in a suit for such non-removal, in which the fact of such service is put in issue by the evidence, and found against the plaintiff,it is error to exclude defendant’s evidence of title (properly pleaded), and of the non-existence of said highway, because of his failure to serve such notice, and then render judgment against him for costs for failing to show title.</p>

Exceptions before judgment from Branch. (Pealer, J.) Respondent was convicted of keeping his saloon open after the statutory hour. The facts are stated in the opinion.

(Stickney, J.) Respondent was convicted of larceny, and sentenced to State prison for three and one-half years. The fact3 are stated in the opinion.

Mandamus. Eelator applied for mandamus to compel respondent to quash a writ of attachment in a log-lien suit. The facts, and points of counsel passed upon by the Court, are state'” in the opinion.

Mandamus. Relators applied for mandamus to compel respondent to quash a writ of attachment in a log-lien suit. The facts are •substantially stated in the opinion in Paclc, Woods & Co. v. Iosco Circuit Judge, ante, 135.

Mandamus. • Relator applies for mandamus to compel a recount of votes under Act No. 208, Laws of 1887. The facts are stated in. the opinion.

Mandamus. Relator applied for mandamus requiring respondent to vacate an order quashing a civil warrant and dismissing all proceedings thereunder, and to re-instate the case for trial, the defendant having appealed from the justice’s judgment in the case. The facts are stated by the Reporter. The main facts leading up to this case are stated in the -opinion in Superintendents of the Poor v. Nelson, reported in '75 Mich. 154.

Mandamus. Kelator applies for mandamus to compel respondent to proceed with the examination of one Lehman, charged with embezzling chattel-mortgaged property. The facts are stated in the opinion.

Habeas corpus proceedings. Petitioner was convicted of adultery, and filed exceptions before judgment, and was admitted to bail, and pending the determination of the case he was arrested and sentenced. The facts are sufficiently stated in the opinion.

<p>Bankruptcy — Composition proceedings — Promissory note given for balance of creditor’s claim — Fraud.</p> <p>A note given by a discharged bankrupt to a creditor for the balance of his claim not satisfied by composition proceedings, to which the creditor assented up; n the agreement that such note should be executed, which constituted its sole consideration, is fraudulent and void.1</p>

) Bill of interpleader. Defendant George W. Child appeals-Decree reversed, and one entered in favor of appellant in accordance with the opinion.

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

Case made from Gratiot. (Hart, J.) Appeal from decree of circuit court on appeal from probate decree for distribution of estate. The facts are stated in the opinion.

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

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

<p>Appeal from Cheboygan. (Eamsdell, J.)</p> <p>Bill filed to restrain the collection of taxes for 1885.</p> <p>The facts are stated in the opinion.</p>

<p>Taxes — Assessment in 1885.</p> <p>This case is ruled by Davenport v. Aud. Gen., ante, 19$, and the decree dismissing complainant’s bill is affirmed.</p>

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

(Look, J.) Bill to quiet title. Complainant appeals from decree dismissing bill. The facts are stated in the opinion, and in 76 Mich. 35.

<p>Partnership — Dissolution—Assumption of firm, debts — Notice to creditors — Principal and surety.</p> <p>1. In the absence of uncontradicted evidence of the fact of notice to creditors, on the dissolution of a firm, that one of the partners has assumed and agreed to pay all of the firm debts, and where such fact must be proved by inferences from other facts proved, the question of such notice should be submitted to the jury in a suit by creditors against the other copartners to recover a debt so assumed, who, looking at all of the facts and circumstances, should say whether the plaintiffs had notice or knowledge of such agreement, and, if so, whether they have so dealt with said partner as to discharge the remaining partners from liab lity.</p> <p>2. The following propositions are summarized from the opinion of Mr. Justice Champlin :</p> <p>a — The simple fact of notice of dissolution of a copartnership does not affect the right of a creditor to proceed against either or all of the partners to collect his debt; but it is notice that each partner is no longer the agent of the others in transacting the firm business.</p> <p>b — On the dissolution of a copartnership, the authority of each copartner to bind the others by any new contract or obligation ceases, and such want of authority is binding upon the creditors of the firm, and others, from the time of notice of such dissolution.</p> <p>c — After the dissolution of a copartnership, each partner is liable for all of the firm debts, the copartners becom ing all principals as joint debtors.</p> <p>d — An agreement by one copartner, on a dissolution, to assume and pay all of the liabilities of the firm, whose assets are transferred to him, places the partners in the relation of principal and surety, as between themselves, and destroys the equitable lien which each has after dissolution upon such assets to the extent of his liability for the debts of the firm, and for his pro rala share of the profits, and capital paid in by him,</p> <p>e — Creditors, on receiving notice of the dissolution of a copartnership and the agreement of one partner to pay the firm debts, arebiundto respect the suretyship relation thus created; and any after dealings with such partner must be had with due regard to the rights of the others as sureties, or they will be discharged.</p> <p>/ — The consideration for the express or implied assent of a creditor toan arrangement by the members of a debtor firm on dissolution, whereby one partner assumes and agrees to pay the firm debts, may be tbs obtaining of an additional security, better terms of payment, negotiable securities which the creditor may use in his business, or any oilier benefit; or it may be a loss of some right or some disadvantage suffered by the surety through the act of the creditor.</p> <p>8. A letter from one copartner to creditors stating that he has purchased the interest of his copartner in the business, and will make some turn enabling him to adjust all matters against the firm satisfactorily, and assuring the creditors that they will be among the first that wilL have prompt attention, but not stating that he has assumed and agreed to pay all of the firm liab lities, does not raise a necessary inference of such an agreement.</p>

<p>• Error to Mecosta. (Fuller, J.)</p> <p>Negligence case. Plaintiff brings error.</p> <p>The facts are stated in the opinion, and in 76 Mich. 282.</p>

<p>Error to Saginaw. (Gage, J.)</p> <p>Trover. Plaintiffs bring error.</p> <p>The facts are stated in the opinion, and summarized as a part of headnote 1.</p>

(Montgomery, J.) Eespondent was convicted of rape, and sentenced to State prison for ten years. The facts are sufficiently stated in the opinion.

(Montgomery, J.) Despondent was convicted of larceny, and sentenced to State prison for three years. The facts' are stated in the opinion.

Exceptions taken before judgment from Jackson. (Gridley, J.) Respondent was convicted of not keeping bis saloon closed on Sunday. The facts are stated in the opinion.

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

<p>Error to Yan Burén. (Mills, J.)</p> <p>Replevin. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Wayne. (Speed, J.)</p> <p>Appeal by executor and residuary legatee from allowance of executor’s annual account. The residuary legatee brings error upon the judgment of the circuit court increasing the allowance for extraordinary services, which judgment is reduced to the sum allowed by the probate court, and, as-modified, affirmed. The facts are stated in the opinion. . .</p>

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

<p>Taxes — Assessment for 1884 — Validating act of 1887.</p> <p>Act No. 17, Laws of 1887, is held to apply to the collection, of taxes assessed for the year 1884 under the 1882 tax law, and to authorize such collection under the provisions of Act No. 153, Laws of 1885.1</p> <p>[The questions involved have been so thoroughly settled by the decisions of the Court that a summary of the briefs of counsel is omitted. — Reporter.]</p>

(Smith, J.) Appeal from an order of distribution recognizing an adopted child of the testator as his heir, which order was affirmed. Order reversed in so far as it decrees distribution to said adopted child, and circuit court directed to decree distribution to the heirs at. law of the testator, and certify the same to the probate court. The facts are stated in the opinion.

<p>Logs and logging — Trespass—Lien for labor — Trover and conver sion — Confusion of property — Right of selection — Evidence.</p> <p>1. A trespasser, however innocent, acquires no property in logs cut from the land of another, nor lien thereon for the value of the labor and expense of such cutting, nor can he recover such value in an action of trover or assumpsit.</p> <p>2. The conversion of trees into saw-logs by a trespasser does not change the title to the property, nor destroy its identity, and his subsequent intermingling of the logs with his own, although innocently done, as was the cutting, cannot change the rights of the owner, who may reclaim from the common mass a quantity equal in amount to the logs cut, and of an average quality.</p> <p>3. If a party cuts from the timber of another, and marks and intermingles them with his own in good faith, believing himself tobe the owner, and tho true owner in reclaiming them takes more than his si rre, or as much or more in quantity, but of a better average qa-titty, he is liable for the excess in an action of trover.</p> <p>4. The owner of standing timber has a right to it as it is, and to keep it uncut if he so desires; and no man can go upon his land and convert such timber into logs, and charge the owner for the labor expended against his will, no matter how innocently the trespass is committed.</p> <p>5. If the owner of standing timber cut into logs by an innocent trespasser sees fit to bring trespass or trover for its value instead of reclaiming his property, he thereby elects to receive a just compensation for said timber.</p> <p>6. Statements made by an agent after the commission of a trespass upon the lands of his principal, whom he had no authority to bind thereby, can have no bearing upon the good faith of the trespasser, especially in the absence of proof that the principal was informed of such statements.</p>

<p>Error to Lenawee. (Howell, J.)</p> <p>Bespondent was convicted of rape, and sentenced to State ' prison for five years.</p> <p>The facts are stated in the opinion.</p>

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

<p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

(Hooker, J.) Bill to enjoin the construction of a township drain. Complainants appeal from a decree dismissing bill on general demurrer. The facts are-stated- in the opinion.

Mandamus. Relator applies for mandamus to cqmpel the hearing of a motion for leave to amend on the merits, and to set aside a former order granting such motion on the payment of $1,000 costs, etc. The facts are stated in the opinion.

(Montgomery, J.) Bill to set aside certain transfers intended to embarrass complainant’s title to land occupied by him. Defendants appeal from decree granting relief prayed for. The facts are stated in the opinion.

<p>Error to Kalkaska. (Fallass, J.)</p> <p>Debt on town treasurer’s bond. Plaintiff brings error!</p> <p>The facts are stated inv the opinion.</p>

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

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

<p>Error to Wexford. (Eallass, J.)</p> <p>Replevin. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

This is an appeal from the report of a jury in railroad condemnation proceedings. The findings were set aside for reasons stated in the opinion, in which the facts are sufficiently stated.

<p>Liquor traffic — Local option law — Synonymous terms — Constitutional law — Title of act.</p> <p>1. To “regulate” and to “prohibit” are not synonymous terms. People v. Qadway, 61 Mich. 285.</p> <p>2. The object of Act No. 197, Laws of 1887, was to prohibit the sale oí the kinds of liquor therein mentioned as a beverage in the counties where a majority of the voters should vote for prohibition, which object is not expressed in a title to regulate the manufacture of such liquors in the several counties of the State.</p> <p>3. In testing acts of the Legislature by the clause of the Constitution requiring their object to be stated in the title, the Court should not, on the one hand, be so hypercritical as to require every matter of detail to be so stated, nor, on the other hand, so liberal as to render the constitutional provision nugatory. But regard should be had to the letter and spirit of the Constitution, the evils it was intended to prevent, the rights it was intended to preserve, and, so regarding it, to test the act which is claimed to be repugnant to this clause candidly and justly, and, if it shall appear that the constitutional provision has been disregarded, to declare the act unconstitutional and void.</p> <p>[The authorities are so fully reviewed in the opinion, as also the points of counsel, that a further statement of same is omitted. — Eeporter. ]</p>

Mandamus. Eelator applies for mandamus to compel respondent to approve of his bond as a retail liquor dealer. The facts are-stated In re Hauck, ante, 396, as also the points of counsel.

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

(Grant, J.) Respondent was convicted of murder, and sentenced to State prison for life. The facts are stated in the opinion.

<p>Exceptions before judgment from Kent. (Montgomery, J.)</p> <p>Respondent was convicted of seduction.</p>

<p>Railroad companies — Constitutional law — Attorney fee of $25 — Neglect to fence right of way.</p> <p>That portion of Act No. 234, Laws of 1885, providing for the recovery of $25 as an attorney fee in case of recovery against a railway company for hilling cattle, is unconstitutional. Wilder v. Railway Co., ante, 382.</p>

<p>Pleading — Amendment of notice of defense.</p> <p>A defendant who applies for leave to add a new notice of defense to his plea after the opening of the trial must show in some way that he is entitled to such favor, and that It can be granted without injustice, and in the absence of such showing it is not error to refuse the application.</p>

<p>Equity — Bill to correct description in deed.</p> <p>In this case complainant is held to be entitled to have his deed corrected in accordance with the bargain made with his grantor, and to be put securely in the enjoyment of the land he purchased, and to be protected against disturbance. The case is one purely of fact.-</p>

<p>Married women — Promissory note — Consideration—Husband and wife — Agency.</p> <p>1. A married woman in this State can make no obligation except on account of her own property, and any one seeking to hold her must make out an affirmative case.</p> <p>2. There can be no presumption of a husband’s authority to act for his wife, and a person seeking to hold her for acts done by another must show affirmatively full authority to bind her.</p> <p>3. The signing of a note by a married woman creates no presumption of consideration, but it must be proved.</p> <p>4. In this case the evidence is held to entirely fail to prove a loan to the appellant, by her understood to be a personal loan, which alone could be a consideration for her personal liability, and that a verdict should have been directed in her favor.</p>

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

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

<p>Arbitration and award — Fraud and mistake — Equity—Waiver of objection to selection of arbitrator — Lease—Submission of rental value of premises.</p> <p>1. Courts favor awards made by tribunals of the parties’ own choosing, and are reluctant to set them aside, and every presumption will be made in favor of their fairness, and the burden of proof is upon the assailing party, which'proof must be clear and strong.</p> <p>2. Under the circumstances of this case, the Court is not prepared to say that the rental value fixed by the arbitrators is any evidence of partiality or of misconduct on their part.</p> <p>3. The commission of an error of law or fact by arbitrators, unless so gross as of itself to furnish clear proof of corruption and fraud, is no ground for setting aside their award.</p> <p>4. The right of the parties to an arbitration to object to the selection of a third arbitrator by lot, if existing, is waived by their proceeding to a hearing with full knowledge of such fact.</p> <p>5. Arbitrators are expected to frame their decisions on broad views of justice, which may sometimes deviate from the strict rules of law.</p>

<p>Negligence — Doctrine of fellow-servant involved — Plaintiff held such by an equal division of the Court.</p> <p>In this case, the judgment being affirmed by an equal division of the Court, nothing is decided.</p>

Mandamus. Relator applies for mandamus to compel respondent to vacate an order revoking its license to do business in this-. State. The facts are stated in the opinion.

<p>Appeal from Van Burén. (Mills, J.)</p> <p>Bill for partnership accounting. Defendants appeal.</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>Appeal from Wayne. (Speed, J.)</p> <p>Bill for specific performance'. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Replevin — Title to lands — Removal of timber — Evidence.</p> <p>1. It is difficult to see how, under the decisions of this Court, a judgment in a personal action can determine the title to lands. Keyser v. Sutherland, 59 Mich. 455.</p> <p>2. In trespass, trover, or replevin for trees severed or coal mined or removed from unoccupied land by a trespasser, or by one not claiming title in good faith, which actions all courts admit the owner of the land may bring to recover the property or its value, the plaintiff may show his title to the land, which may be controverted by the defendant, who may even show title m a stranger; the object of such proof not being to determine who has such legal title, but who is the owner and entitled to the posses"sion of the personal property, which latter question is alone determined by the decision.</p> <p>3. The decision of the court in a replevin suit for logs cut from lands claimed by the plaintiff under tax deeds, that such deeds are invalid, eliminates fi om the case the question of conflicting titles to the lands, and defeats the plaintiff’s recovery, his right to the possession of the logs being dependent upon the validity of his title to the lands from which they were taken.</p> <p>4. Where a plaintiff and defendant are shown to own undivided interests in the loas replevied, the suit cannot be maintained.</p> <p>5. In order to test the accuracy of a scale or estimate of the amount of logs cut from certain lands, made af er the logs had been removed, by a “ stump and top measurement,” so called, other like scales or estimates made by the same scaler on other lands may be shown and compared with the actual scale of the latter logs. *</p>

Mandamus. Eelator applies for mandamus to compel respondent to approve of a liquor-dealer’s bond. The facts are stated in the opinion.

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

<p>Negligence — Injury at railroad crossing — Contributory negligence.</p> <p>In this case the plaintiff’s intestate is found to have been guilty of contributory negligence, and the action of the circuit judge in directing a verdict in favor of defendant is sustained.</p>

<p>Public lands — Surveys—Fractional section — Meander lines — Patent— Description of tract — Bpundary line — Location by agreement.</p> <p>. 1. Fractional sections are caused, in extending the surveys of the public domain, by lakes, or other bodies of water, and streams that are meandered, and Indian or other reservations.</p> <p>2. Section 1 of the act of Congress of date April 24, 1820 (3 U. S-Stat. at Large, 536), applies where a stream of sufficient magnitude to be meandered, under the instructions to the surveyor, runs through a section, thus cutting it into two parcels, both of which are thereby made fractional. If one portion exceeds 160 acres, the Surveyor General divides it up, according to his discretion, under the statute, and instructions issued by the Secretary of the Treasury. He may carve out 160 acres, and divide the balance into lots, “regard being had to convenient forms, and so to avoid the subdivisions of the public domain into ill shaped and unsalable fractions.” If one portion contains less .than 160, the law requires it to be sold as one parcel.</p> <p>3. In granting patents for lands, it is usual ft>r the government to add, immediately after the statement of the number of acres which the tract contains, if it be fractional, these words: “ According to the official plat of the survey of said lands returned to the General Land-office by the Surveyor General,” which language constitutes a part of the description of the premises conveyed, and limits the purchaser to the tract as marked upon said plat.</p> <p>4 The description in a government patent of that portion of a section lying south of a meandered stream, and containing less than 160 acres, as the S. E. fractional ■£ of the section, “ according to the official plat of the survey of said lands returned to the General Land-office by the Surveyor General,” is sufficient in connection with the official plat, and is quite a customary method of description in the General Land-office.</p> <p>5. The facts embraced in the fifteenth, sixteenth, seventeenth, and eighteenth findings of fact (see opinion) are insufficient to establish a boundary line by agreement.</p>

<p>Appeal from Shiawassee. (Newton, J.)</p> <p>Bill to redeem. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Error to superior court of G-rand Rapids. (Burlingame, • J.)</p> <p>Assumpsit, Defendant brings error.</p> <p>The. facts are stated in the opinion.</p>

<p>Taxes — Assessment in alternative — Acquiescence of owner.</p> <p>"Where the property of a corporation was assessed in its name and that of its business manager in the alternative, which tax was paid without objection, and a like assessment was made the following year, and the real estate tax was paid, but the payment of the personal estate tax was refused on the ground that the assessment was illegal, and the property of the corporation was sold to satisfy said latter tax, no one was harmed by such alternative assessment, which was virtually acquiesced in by the payment of the prior year’s tax and the real estate tax for the following year, and the case falls within the curative statute (Act No. 158, Laws of 1885, § 89), and is also ruled by the case of Lumber Co. v. Collins, 66 Mich. 64.</p>

<p>Conditional sale — Stipulation that machine shall work to vendee's satisfaction — Return of property to-vendor — Evidence— Statements of agent — Impeachment.</p> <p>1. In this case it is held that under the agreement for the sale of the machine, as testified to by both parties, it was immaterial whether it worked well or not; that the vendee was to be satisfied with it; and if it did not suit him he had a right to return it, the only question being when such return was to be made, and that this was a question of fact to be found by the jury.</p> <p>2. In a suit by a vendor to recover the price of a machine, statements made by the vendor’s agent, not in his presence, as. to the terms of the sale, which was negotiated by the agent, are inadmissible unless the evidence is offered for purposes of impeachment, in which case the agent’s attention must be directed to such alleged statements when on the stand. #</p>

<p>Statute of limitations — Oommeneement of new suit within one year — Aetion by personal representatives.</p> <p>A new suit, whether brought by the plaintiff or his personal representatives, under How. Stat. § 8723, must be commenced within the statutory year.</p>

<p>Statute of frauds — Contract of sale — Conflict of laws — Delivery and acceptance of goods under verbal order,</p> <p>1. Where goods are shipped from another state into Michigan on a verbal order, the contract is governed by the laws of the place of shipment. Sling v. Fries, 33 Mich. 275.</p> <p>2. A verbal order, followed by the delivery and acceptance of the goods, is enough, under our statute of frauds, to complete the sale.</p>

<p>Appeal from Calhoun. (Hooker, J.)</p> <p>Bill of interpleader. Defendant Ellis appeals.</p> <p>The facts are stated in the opinion.</p>

(Newton, J.) Bill to foreclose a lien claimed by reason of the redemption of mortgaged premises. Complainant, and defendants McBride and Storrs, appeal. Decree affirmed except as to-interest allowed complainant, which is to date from filing of opinion. The facts are stated in the opinion, and in 48 Mich.. 387; 61 Id. 437.

<p>Equity — Specific performance.</p> <p>“In order that a court of equity shall exercise its power to decree a specific execution where there has been a part performance, the contract itself must be clear, certain, and unambiguous in its terms, and must either be admitted by the pleadings, or proved with a reasonable degree of certainty to the satisfaction of the court. If, therefore, upon all the evidence given by both parties, the court is left in doubt as to the entire contract, or even as to any of its material terms, it will not grant the remedy,, although a partial performance of something has been sufficiently proved.”</p>

(Fallass, J.) Bill to restrain the obstruction of the flow of water in Clam river. Complainant appeals. The facts are stated in the opinion.

<p>Error to Antrim. (Eamsdell, J.)</p> <p>Negligence case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

Clair. (Stevens, J.) Bill to declare a deed absolute on its face, a trust deed, •etc. Complainant appeals. The facts are stated in the opinion.

<p>Attorney and client — Agreement as to compensation — Percentage on alimony allowed — Appeal—Record— Unnecessary matter — Costs.</p> <p>1. In this case the agreement of the defendant to allow plaintiff a percentage for his services on the excess over $15,000, awarded to her in a divorce suit, is held to cover $3,000 allowed to pay debts by her incurred.</p> <p>2. In this case it is held that a record of 12 pages would have presented the only point for decision, and the expense of the excess of 93 pages is charged to the plaintiff, the unnecessary matter having been included at his request and against defendant’s objection.</p>

<p>Error to Kent. (Montgomery, J.)</p> <p>Debt on liquor-dealer’s bond.</p> <p>The facts are stated in the opinion.</p>

<p>Fraudulent sale — Rescission—Direction of verdict — Discretion of court as to allowing plaintiff to introduce testimony after case closed.</p> <p>• In this case the direction of a verdict in favor of defendants for want of any evidence tending to show fraud in the purchase of the goods replevied is held to have been warranted, and that the discretion of the court in refusing to open the case and allow plaintiff to introduce proof of defendants’ insolvency at time of such purchase, was properly exercised.</p>

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

(Jennison, J.) Bill of interpleader, and appeal of same complainant from order of probate court directing him, as special administrator, to pay over certain funds to the general administrator» Complainant appeals. The facts are stated in the opinion.

<p>Certiorari to review the proceedings had in the circuit court of Berrien county on a transcript of a justice’s judgment filed and docketed under Act No. 173, Laws of 1885.</p> <p>The facts are stated in the opinion.</p>

<p>Negligence — Dangerous premises — Evidence—Oily ordinance — Submission of case to jury.</p> <p>1. In a suit against a city and one of its citizens for injuries received by falling into a ditch dug by the latter in front of his premises to let the water off his lot while repairing his sidewalk, which repairs had been directed by the city, and which ditch was left open overnight without any warning, the plaintiff may introduce in evidence a city ordinance regulating such excavations, and providing for proper guards against accidents on account of the same, .such evidence tending to show the degree of negligence on the part of the defendants in the case.</p> <p>2. In a negligence case, when the evidence tends to show negligence on the part of the defendant and contributory negligence on the part of the plaintiff, the question cannot be taken from the jury.</p>

<p>Appeal from Van Burén. (Mills, J.)</p> <p>Bill for divorce. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Relator applies for mandamus to compel the entry of final decree in a chancery case. The facts are stated in the opinion.

<p>Bastardy proceedings — Detroit House of Correction — County jail.</p> <p>1. The confinement of a party found to be the father of an illegitimate child in the Detroit House of Correction, until he shall execute the statutory bond for its support, is illegal.</p> <p>2. The following propositions are summarized from the opinion of Mr. Justice Campbell:</p> <p>a — The Detroit House of Correction is a prison for the confinement of persons convicted of offenses, and no one can be confined there except in pursuance of some express statute.</p> <p>b — The only house of detention recognized by our laws is the county jail.</p> <p>c — The bastardy statute does not provide for imprisonment as a punishment, but only as a detention until the person adjudged to be the father shall give the proper bond; and it is subject to the same condition as in civil cases under the non-imprisonment act, so as to put the party on the footing of an imprisoned debtor, entitled to discharge from custody on complying with the insolvent laws.</p>