Volume 71 — Michigan Reports

<p>Error to Eaton. (Hooker, J.)</p> <p>Trover. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

Mandamus. .Relator applies for mandamus to compel respondents to obey Act No. 2G2, Laws of 1887, providing for reporting mortgages for assessment purposes. Tbe facts are stated in tbe opinion of Sherwood, O. J.

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

Mandamus. Belator applies for mandamus to compel respondent to entertain a complaint for a violation of section 31 of the liquor law of 1887. The facts are stated in the opinion.

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

<p>.Error to Wayne. (Gartner, J.)</p> <p>Debt for rent on sealed lease. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Arenac. (Green, J.)</p> <p>Case lor flooding plaintiffs land. Defendant brings error.</p> <p>Tbe facts are stated in tbe opinion.</p>

<p>Appeal from Lenawee. (Watts, J.)</p> <p>Bill filed for purposes stated in head-note. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

(Smith, J.) Bill to reform a mortgage so as to coyer the Avhole land intended to be mortgaged. Defendant Daniells appeals. The facts are stated in the opinion.

<p>Error to Wayne. (Gartner, J.)</p> <p>Negligence case. Defendant brings error.</p> <p>Tbe facts are stated in tbe opinion.</p>

(Newton, J.) Bill to restrain the sale of school-district property. Complainant appeals. The facts are stated in the opinion.

(Hosmer, J.) Information-in tbe nature of a bill in equity to restrain tbe city of Detroit from discontinuing tbe Central public market in that city. Complainant appeals. Tbe facts are stated in tbe opinion.

<p>Statute of frauds — Agreement for payment of commission on sale of real estate — Evidence—Corporation officers — Testimony as to facts equally within knowledge of deceased person.</p> <p>1. Agreements for the payment of commissions on the sale of real estate do not come within any provision of the statute of frauds.</p> <p>2. While the testimony of the officers of a corporation as to their personal dealings with a deceased defendant in creating a contract for the sale of real estate on commission may be objectionable as calling for matters equally within his knowledge, such objection cannot apply to all of the services rendered in making such sale.</p> <p>3. In such a case the testimony of persons who dealt with and were introduced by the corporation agents to the deceased, who recognized in then- presence the employment claimed by the corporation, is admissible in support of such claim.</p>

<p>Trover and conversion — Measure of damages — Set-off—Lien—Equity..</p> <p>1. A defendant in a trover suit cannot set off against the value of the property he has wrongfully converted a debt due him from the plaintiff, to secure which he has a lien on the same property which is only enforcible in equity.</p> <p>2. In an accounting in chancery, in order that the whole controversy may be settled and adjusted, equity will sometimes permit a judgment, though obtained in an áction for a wrong, to. , be .made an item, in favor of the party ■ holding it, in the . account to be taken.</p> <p>' [See foot-note to opinion for authorities cited,— Reporter. |</p>

(O’Hara, J.) Assumpsit on land contract to recover purchase price on tender of deed, etc. Defendant brings error. The facts are stated in the opinion.

<p>Equity — Bill of review — Ladies.</p> <p>1. A bill in the nature of a bill of review, not verified or accom panied by any sworn showing, should be dismissed by the court.</p> <p>2. Under the rules, a bill of review should be filed within the time allowed for axrpealing, unless on newly-discovered evidence, or when there has been some reason that is satisfactory for the delay.</p>

Mandamus. Relators apply for mandamus to compel the payment of' interest on paving orders. The facts are stated in the. opinion.

<p>Executors and administrators — Will—Sale of real estate to pay debts and legacies — Order of sale — Equity jurisdiction.</p> <p>1. Under How. Stat. § 6037, lands remaining in the hands of heirs or devisees must be sold to pay debts or legacies before resorting to those sold by them to third parties, and equity has jurisdiction to restrain the sale by executors of such lands in any other order.</p> <p>2. Under the facts stated in the opinion, the jurisdiction of equity having attached to enjoin the attempted sale, the court may take sufficient cognizance of the whole matter to declare for what specific purpose a sale may be ordered.</p>

(Gridley, J.) Bill to enjoin the flooding of land by the maintenance of a dam at an unlawful height. Complainants appeal. The facts are stated in the opinion.

<p>•Appeal from Presque Me. (Emerick, J.)</p> <p>Bill for specific performance of contract. Complainant-appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Shiawassee. (Newton, J.)</p> <p>Appeal from order awarding surplus on foreclosure sale.</p> <p>The facts are stated in the' opinion.</p>

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

<p>Infants — Testamentary guardians — Residence—Parent and child— Conflict of laws — Comity of states.</p> <p>1. Courts have a general superintending power over all infants, and the primary .guardianship of the parent over his child lasts no longer than he is found to be competent, and 'discharges his-duty, which nature has laid upon him, ■ properly; and when he fails to do this, the proper court may interfere, and charge-another with such performance.</p> <p>2. Primarily, the court is the guardian of all orphan children, and •will give the proper directions as to their care and support until such time as a guardian shall be appointed; and it is then its duty to see to it that the duties of the trust are properly discharged.</p> <p>2. Guardians for infants may be appointed by the last will of the parent instead of by the court, in which case the court will recognize their authority and their control of the ward so long as'it is right and proper, and for the best interest of the ward.</p> <p>4. The powers of a testamentary guardian are the same as are those of a guardian appointed by the court, and are allowed to be exercised or withheld for the same reasons.</p> <p>5. Who shall or shall not be appointed guardian is within the discretion of the court. Relatives of the infant are usually selected, and those nearest of kin are usually preferred when otherwise competent, and as between those entitled the controlling question to be determined in making the selection is, and always should be, what will be for the best interest of the ward under all the circumstances?</p> <p>6. In this case it is held that under the agreement made by the father of the infant with his wife’s mother, on the request of his wife, and pursuant to which the child was brought from Washington to Port Huron, the last-named city became the child’s residence, which was not changed by the agreement afterwards signed in Washington under duress; and that by virtue of then- letters of guardianship the respondents have also the lawful custody of the child, the right to which the testamentary guardians never had, except that which comity gave them, and which can never be properly enforced in this State, under the circumstances appearing in this case.</p>

<p>Statute of frauds — Verbal promise to pay the debt of another,</p> <p>A verbal promise by a mortgagee to pay a debt due a creditor of a mortgagor, in consideration of which the creditor agreed to and did refrain from attaching property belonging to the mortgagor not covered by the mortgage, and which property was afterwards converted to his own use by the mortgagee, is void under the statute of frauds.</p> <p>[The points of counsel, and the authorities relied upon, are so fully discussed in the opinion, that their restatement is omitted. — Reporter.]</p>

<p>Error to Oakland. (Moore, J.)</p> <p>Assumpsit on “Red Lyon Wheat Note.” Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Wayne. (Gartner, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>Tbe facts are stated in tbe opinion.</p>

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

<p>Taxes — Assessment—Personal property — Logs in transit.</p> <p>1. An assessment made on property which is not believed to be, and is not in fact, assessable, cannot be valid.</p> <p>So held, where a supervisor assessed logs in his township to the owners, who resided in another county, although he had information which satisfied him (as was the fact) that the logs were in transit, and by statute assessable at their place of destination.</p> <p>2. Inasmuch as the assessment of personal property creates a personal judgment against the owner, which may be satisfied out of his other property, such a proceeding must be founded on a clear right 'to render it.</p> <p>8. The statute does not contemplate that the owner of saw-logs,, who may be a non-resident of the State as well as of the county or township, must appear in all parts of the State where his logs may be in transit, at the day when their liability to assessment is supposed to accrue in each township.</p> <p>4. While, under certain circumstances, a party may be called on for sworn information, yet this is only to inform the conscience of the taxing officers, who, if satisfied concerning the facts, have no need of further information, and when so satisfied they cannot properly make an assessment against the facts.</p>

<p> Mandamus. </p> <p>Relators apply for mandamus to compel respondent to approve a liquor bond. The facts are stated in the opinion.</p>

<p>Township drains — Irregularities in proceedings for constructing— Estoppel — Assessment of benefits — Notice.</p> <p>1. Land-owners who petition for the construction of a drain, and release the right of way over their lands, and assent to all the proceedings in laying out, establishing, and constructing it, are estopped from complaining of any irregularities in such proceedings.</p> <p>2. The failure of a drain commissioner to give notice of the time and place for a review of his assessments of benefits, which were made without any notice to those interested some two or three months after the contracts for the construction of the drain were let, and without the knowledge or assent of certain complaining land-owners, will render such assessments void as to them.</p>

<p>Pleading — Assumpsit—Debt—Statute of limitations — Notice—Bills and notes — ■Release of prior indorser — Joint debtors — Discharge in bankruptcy — New promise.</p> <p>1. Where an action was commenced on a judgment by a summons in assumpsit, but the declaration was in debt, and the defendant gave notice that the cause of action did not accrue within ten years, within which time the suit was commenced, the variance is of no consequence.</p> <p>2. An endorser of a note who signs Ms name below that of the payee, to whose order it is drawn, is liable as a subsequent and not joint indorser, and is released by the release of the payee without Ms consent.</p> <p>8. Nothing amounts to a new promise to avoid a discharge in bankruptcy that is not intended distmctly as a recognition and renewal of the debt as bmding. Craig v, Seitz, 63 Mich. 727.</p>

<p>Replevin — Joint judgment for defendants — Fraudulent purchase— Evidence.</p> <p>1. A joint judgment in replevin for the value of the property, in favor of defendants who are not shown to have a joint interest therein, cannot be sustained.</p> <p>2. It is not necessary, in order to prove fraudulent purchases, to show the complicity of the vendee’s assignee and his vendee, from whom the goods are replevied, in the original scheme, if one existed, as they may be unable to hold the goods without being guilty of actual dishonesty.</p> <p>S. In this case it is held that the case should have been submitted to the jury on the facts, there being i^ertinent testimony upon the question of fraud, the weight of which was for the jury.</p>

<p>Factors and brokers — Seal estate agent — Sight to commission.</p> <p>Where a plaintiff who sues for commissions for bringing about bargains for the sale of real estate is shown to have done all that he could do in that direction, and that it was defendant’s fault, and not his, that no sale was made, he makes out a good cause •of action.</p>

<p>Contract — Compliance of machine toith terms of sale — Evidence— Charge to jury,</p> <p>1. In a suit upon a contract for the construction of a machine at a stipulated price, which the vendee refused to accept because not answering to the requirements of the contract, evidence by the plaintiff of the cost of the machine is irrelevant, his recovery being limited to the contract price.</p> <p>2. In such a case evidence of the workings of similar machines, but not like the one in suit, and the amount of help required to operate them, is inadmissible, being outside of the issue being tried.</p> <p>3. If the capacity of the machine manufactured upon a contract for a particular purpose is to be tested in establishing a condition precedent to payment, it should comply with the conditions mentioned in the contract.</p> <p>4. An instruction to a jury not based upon any evidence in the-case is erroneous.</p>

<p>Libel and slander — Oliarge of larceny — Malice.</p> <p>1. Words charging another with the crime of larceny are actionable, and if used without warrant the law presumes malice.</p> <p>2. Malice, in a legal sense, means a wrongful act done intentionally, and without just cause or excuse.</p>

<p>Equity — Nuisance—Bill to abate mill-dam — Laches—Estoppel— Damages.</p> <p>1. The removal of a mill-dam so far as it exceeds a proper height, by the decree of the equity court, is not a matter of right, but of equitable discretion, and must depend on the circumstances of the case.</p> <p>3. It is quite possible for land-owners to estop themselves from seeking equitable aid to abate a mill-dam; and when they come into a court of equity for relidf, and are not willing to comply with equitable conditions, it is competent to give them their choice to do justice or get their remedy where they can. A court of equity is not to be made an instrument of wrong.</p> <p>-3. In this case complainant is awarded §1,500 damages as entire compensation for the total injury to him by the continuance of the dam heretofore and hereafter.</p>

<p>Will — Construction—Lapsed legacies — Residuary clause.</p> <p>1. Our statutes do not save legacies from lapsing if the lagatee dies. before the testator, except as provided by How. Stat. § 5812, which does not make the legacy become a part of the deceased legatee’s estate, but simply gives it to his or her issue as direct beneficiaries.</p> <p>2. The law in regard to lapsed legacies of personalty has always treated them as part of the general body of the estate, so that they pass to the residuary legatees.</p> <p>3. A will dividing the residue of the testator’s estate into seven parts, and devising one-seventh to a father and mother, and then- son, “in equal shares to each of them,” though somewhat ambiguous, is construed, in view of other provisions of the will as to such residue, to give the seventh to the collective legatees.</p> <p>4. Where a testator bequeathed one-seventh of the residue of his estate to a legatee after deducting therefrom the absolute legacy, which was valued at §6,000 for that purpose by the testator, the only way to get at such deduction is to include §6,000 with the balance of the body of the estate not sx^ecially bequeathed, and divide the aggregate into sevenths, and, if one-seventh exceeds §6,000, the legatee will be entitled to the difference, and, if not, the remainder, after leaving out the §6,000, would belong to the other residuary legatees.</p> <p>5. Under our statutes, as well as under the general policy of the law, no part of a testator’s estate should be treated as intestate-if it can be reasonably avoided.</p>

Mandamus. Eelators apply for mandamus to dismiss attachment proceedings for a defect in the affidavit. The facts are .stated in the opinion

Mandamus. Relator applies for mandamus to vacate an order sustaming a challenge to tbe array, and discharging the-jury, etc. The facts are stated in the opinion.

(Newton, J.) Information for obtaining two promissory notes by ■means of false pretenses. Respondent was convicted. The facts are stated ■in the opinion.

‘ (Steere, J.) Respondent was convicted of an assault with intent to do great bodily harm less than the crime of murder, and sentenced to State prison for two years. The facts are stated in the opinion.

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

(Hart, J.) Respondent was convicted of an assault with intent to commit the crime of rape. The facts are stated in the opinion,

<p>■Criminal law — Information for larceny — Preliminary examination —Warrant—Amendment.</p> <p>.After the examination of a respondent on a charge of larceny, a variance between the complaint and warrant in stating the name of the owner of the property, he being described as Allen Brieker in the complaint, and as Allen Brinker in the warrant, is properly corrected by the justice by amending the warrant to correspond with the complaint and the testimony given on the examination; and, if such amendment is not made, the circuit court may make it under How. Stat. § 9537.</p>

Exceptions from Wayne. (Brevoort, J.) Respondent was convicted of the larceny of a sewing-machine. The facts are stated in the opinion.

<p>Error to recorder’s court of Detroit. (Swift, J.)</p> <p>Bespondent was convicted of receiving stolen property.</p> <p>The facts are stated in the opinion.</p>

<p>Certiorari to a police justice of Detroit, to review a ■conyiction under the game law.</p> <p>The facts are stated in the opinion.</p>

Exceptions from Kent. (Montgomery, J.) Eespondent was tried and convicted in the police court, of Grand Eapids of failing to keep his saloon closed on Sunday, as required by the liquor law of 1887, and appealed to the circuit, where he was again convicted. The facts are'stated in the opinion.

<p>Criminal law — Information for resisting an officer.</p> <p>An information for resisting an officer while attempting to preserve the peace, which fails to inform the respondent of the acts or facts constituting the offense, or of the acts of the officer which the respondent obstructed, or in what manner the resistance was made, charges no offense</p>

Exceptions from Tuscola. (Beach, J.). Respondent was convicted of obtaining goods by false pretenses. The facts are stated in the opinion.

<p>Liquor traffic — Sale to minor — Charge to jury.</p> <p>Where in a prosecution for 'selling liquor to a minor the undisputed and only evidence showed such sale in the respondent’s presence, and in such a manner as to make his ignorance of it impossible, unless he lacked some of his senses, or was willfully ignorant, an instruction to the jury that such ignorance would make no difference, and that he would be liable at all events, could have no bearing or effect, there being no pretense of such ignorance.</p>

<p>Logs and logging — Contract—Construction of term “mill tally”— Evidence — Custom and usage.</p> <p>In this case it is held that in view of the fact that there are times and places that lead to different usages in economizing lumber, the old processes being more wasteful than the new, and what was once not worth saving being now frequently of commercial value, grades being multiplied and subdivided, and sawing closer, there was no objection to receiving testimony as to the construction placed upon the term “ mill tally;” and the witnesses whom the jury followed having testified that it included all that was saved and set apart as proper to be classed as lumber, including “mill culls,” which testimony is in harmony with the apparent meaning of the term, and warrants the conclusion reached by the jury, the judgment is affirmed.</p>

<p>Executors and administrators — Bond—Distribution of estate — Liability of surety — Leave to sue — Amendment of record in Supreme Court.</p> <p>1. An order of distribution alone cannot discharge executors until the estate is distributed.</p> <p>2. It is a dangerous and incorrect doctrine that executors can discharge themselves of then- official responsibility without doing some act to change the character of then holding, and place the fund safely where it ought to be.</p> <p>3. Where executors, after an order for distribution, make a wrongful conversion of the propex-ty to the use of one of them, it is a clear breach of duty, for which action will lie on then bond.</p> <p>á. Where leave was granted to an administrator appointed on the removal of the executors, who had failed to comply with the order of distribution, and had converted the property to the use of one of them, for leave to sue on then bond, which suit was prosecuted to judgment in the name of the judge of probate for the use of a contingent residuary legatee, who had no definite interest, the record was amended in the Supreme Cotut so as to show the administrator as the party in interest, he being entitled to take the fund, and see to its proper investment.</p>

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

<p>Error to Marquette. (Grant, J.)</p> <p>Negligence case. Defendant brings error.</p> <p>T,he facts are stated in the opinion.</p>

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

<p>Transfer of causes — Disqualification of circuit fudge — Place of transfer.</p> <p>1. Under How. Stat. § 6499, the residence of the parties or of the-attorneys of record controls as to the place of transfer, and the-number or residence of the witnesses is not considered.</p> <p>2. 'Where the attorney for a party is elected to the office of circuit. judge, and thereby becomes disqualified to try the suit, the client has the light to select any attorney he sees fit in his. stead, after which he may avail himself of his statutory right, to transfer the case.</p> <p>8. How. Stat. § 6499, does not seem to apply to any but the attorneys-of record in the case to be transferred.</p> <p>4. In this case, the commissioner having jurisdiction to act in the-premises, his determination cannot be disturbed on certiorari' on the showing made.1</p>

(Arnold, J.) Action for false imprisonment and assault and battery for making an arrest without process. Plaintiff brings error. The facts are stated in the opinion.

<p>Error to Alpena. (Emerick, J.)</p> <p>Replevin. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

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

<p>Mortgage foreclosure — Parties—Prior liens.</p> <p>, Prior lien-holders, or those claiming under a title paramount to the mortgage, are not proper parties to a suit for its foreclosure, nor can their claims be litigated in such suit.</p>

<p>Case made from Calhoun. (Hooker, J.)</p> <p>Replevin. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Fire insurance — Forfeiture of policy — Additional insurance — Waiver —Authority of agent.</p> <p>1. The former opinion in this case, reported in 65 Mich. 527, is held controlling, as far as the defense of a forfeiture of plaintiff’s policy by taking additional insurance contrary to its conditions is concerned ; but it is further held that the question of the waiver by the defendant of such forfeiture should have been submitted to the jury.</p> <p>"2. It is the duty of the insured to know what his contract of insurance is, and he must be held to a knowledge of the conditions of his policy, as he would be in the case of any other contract or agreement; and the fact of his not having seen the policy will not excuse a want of such knowledge any more than his failure to read it, in the absence of proof of any adequate reason for not seeing it.</p> <p>-3. The fact that an insurance agent had authority, in a certain way and manner, to consent to the taking of additional insurance, and had done so in other cases, will not save a forfeiture incurred by taking such insurance with the consent of the agent in a manner outside of such authority, his right to waive such conditions of the policy not being shown.</p> <p>4. An insurance company will be held to have waived the forfeiture of a policy incurred by taking additional insurance contrary to its conditions, where with full knowledge of the facts showing such forfeiture, which was supposed to have been waived, it fails to notify the insured of an intention to insist on such defense until after its adjuster has examined into the loss, and received from the insured all the information he asked for in relation to its extent and value, taking two days of his time and the services of a man furnished by the insured, and making no point of the taking of such additional insurance as a reason why the insurance should not be paid.</p>

(Mills, J.) Bill in aid of execution, and to reach property not open to execution. Defendant Notley alone appeals. The facts are stated in the opinion.

<p>Chancery appeal bond — Judgment against sureties.</p> <p>1. To authorize the rendition of judgment for costs against a surety in a chancery appeal bond under How. Stat. § 7663; a certified copy of the bond must be made a part of the return, to enable the Court to inspect it on the hearing, and ascertain as to its sufficiency for that purpose.</p> <p>2. Sureties upon a chancery appeal bond are entitled to the earliest action possible after decree made, if the defendant wishes to avail himself of a statutory judgment against them, and avoid the necessity of a suit upon the bond.</p>

<p>Attorney and client — Retainer—Trustees—Witness—Evidence—Testimony as to facts equally udthin knowledge of deceased party.</p> <p>1. A contract made by the trustees of a copartnership with an attorney to prosecute and defend all suits for and against the firm growing out of the business being carried on by said trustees, is held not to cover a suit between the beneficiaries to settle their relative rights, in which the trustees are incidentally involved by reason of their trusteeship.</p> <p>2. Where in a suit against the trustees of a copartnership upon a contract made by their business agent, who was also a member of the firm, the judgment, if one is recovered, must be paid out of the trust estate, the death of such agent renders the testimony of the plaintiff as to the terms of the contract inadmissible under Act Ko. 189, Laws of 1885, said trustees being the representatives of said deceased beneficiary.</p>

<p>Board of supervisors — Authority to lay out or discontinue State roads — Damages to land-owner — Eminent domain.</p> <p>1. In this case the proceedings of the board of supervisors of Eaton county, discontinuing a portion of a State road, are quashed,, for reasons stated in the opinion.</p> <p>2. The following propositions relating to the power of the board of' supervisors to lay out or discontinue State roads, and the manner of its exercise, are 'summarized from the opinion of Mr. Justice Chahplin:</p> <p>a — A board of supervisors have jurisdiction under How. Stat. § 497, to discontinue a State road without the presentation of' the petitions provided for by How. Stat. § 498 {People v. Supervisors, 20 Mich. 101), and when set in motion by such petitions their insufficiency is an irregularity, not going to the jurisdiction, but which will be considered on certiorari as affecting the validity of the proceedings in the particular case as injuriously affecting the rights of the petitioners for the writ.</p> <p>b — The board of supervisors have not absolute and unlimited power to discontinue State roads. It is only when they deem it for the interest of the public that they are authorized so to do; and it must appear in some form in the record of their proceedings that then- action is based upon what they deem for the interest of the public; and this fact cannot be gathered from the result of such action, when they are set in motion by the petition of interested parties.</p> <p>c — When the exercise of authority is limited by statute, and it affects the rights of individuals by divesting them of property or valuable rights, the record of the proceedings must show that the act by which this is done is within the limits of the power conferred.</p> <p>d — How. Stat. § 501, requiring every order, resolution, and determination of a board of supervisors, made in pursuance of the act authorizing them to discontinue State roads, to be recorded in the records of‘the board, and to be signed by the chairman and clerk of such board, is mandatory, and was enacted for the protection of both public interests and private rights; and in the absence of such authenticated record the presumption that public officers perform their duty cannot sustain the action taken, whatever it may be.</p> <p>e — It is not conceded that the action of the board of supervisors in laying out or discontinuing a State road is so purely of a legislative character as to dispense with the safeguards of the Constitution for" the protection of private rights, nor with notice to parties directly interested and affected by the, proceedings, required to bring such proceedings within the requirements of due process of law.</p> <p>/ — ■When the right of eminent domain is exercised by any other authority than highway commissioners in laying out or discontinuing highways, the constitutional requirement of a jury is retained.</p> <p>gf — At time of filing the opinion in this case there is no law by which a party aggrieved can have his damages and compensation ascertained by a jury when the board of supervisors lay out or discontinue a State road, Act No. 179, Laws of 1887, not providing for a constitutional jury of twelve.1</p> <p>[ The points of counsel are fully stated in opinion. — Beporter.]</p>

<p>Criminal law — Conduct of prosecutor — Argument—Opening Of case.</p> <p>1. In this case it is held that it is apparent from the whole record that the trial was had under circumstances very hostile to fair procedure, and that the jury had laid before'them in a very offensive way considerations having no proper bearing on the issue which they had to try, and the conviction is set aside and a new trial granted.</p> <p>2. The following general propositions are summarized from the opinion of Mr. Justice Campbell :</p> <p>a — It would not be conducive to justice, or at all practicable, to interrupt criminal trials to examine into charges of alleged improper conduct of the prosecuting officer and others, out of court, in furnishing refreshments to members of the jury, or conversing in them presence, with a view to the discharge of the jury if the charges are sustained.</p> <p>b — Thel-e is great impropriety in a prosecuting officer consorting with jurors, and ottering them entertainment of any sort.</p> <p>c — The most dangerous form of influence is that which brings jurors and parties or counsel into familiar intercourse, which Otters opportunity for insidious and indirect means of persuasion and conciliation, which operates sometimes unconsciously, but none the less forcibly; and if the court is satisfied that enough has happened to involve serious risk of undue bias, especially in cases where feeling is easily excited and prejudice aroused, the verdict should be set aside.</p> <p>d — Under our laws it is settled that the public is as much interested as the defense in having no person unjustly condemned.</p> <p>e — It is not legally presumed that a prosecuting officer will pursue a prisoner whom he believes to be innocent, or resort to any means to deprive any one of his legal fights, or to suggest false charges, or use improper testimony against him.</p> <p>/ — It has been held from time immemorial that the trial court itself is bound to see and provide affirmatively that no injustice is done the prisoner by the improper course of a prosecutor; and when this goes so far that the right to a fair trial is evidently infringed, this Court will correct the wrong.</p> <p>• g — Under our practice the argument of the case belongs to the close of the testimony, and not to the opening, and must be based on what actually appears in proof.</p> <p>h — The only legitimate purpose of an opening is so to explain to the jmy the nature and elements of the issue they are to try, that they may understand the bearing of the testimony which is thereafter put in, and any misrepresentation of what is covered by such issue has a tendency to prevent them from giving to the testimony, when put in, a proper comprehension of its bearings, or of its real force.</p>

<p>Chattel mortgages — Description—Crowing crops — Renewal affidavit — Subsequent purchasers or incumbraneers.</p> <p>1. A mortgage of “20 acres of wheat now sown and growing on the ground, and stOl to be sown, on the 20 acres, this present season of 1886,” on a specified farm, is not void for uncertainty, but plainly indicates by its terms that it was intended to cover the first 20 acres of wheat which the mortgagor should sow on said farm, and that the 20 acres had not all been sown at the time of the execution of the mortgage; and it is the duty of a subsequent purchaser or incumbrancer to inquire and ascertain what portion of the 20 acres had been sown before purchasing.</p> <p>2. The “subsequent purchasers and mortgagees in good faith,’’ referred to in How. Stat. § 6196, are those who become so after the expiration of one year from the filing of the mortgage, and before its renewal.</p> <p>8. While the filing of a chattel mortgage ceases to be constructive notice at the expiration of one year, its renewal preserves its lien as to all persons except those acquiring liens, and purchasers or mortgagees, in good faith, in the interim, with the like force and effect as if renewed prior to the expiration of said year.</p> <p>4. The case of Briggs v. Mette, 43 Mich. 13, in so far as it conflicts with Wetherell v. Spencer, 3 Id. 133, is overruled.</p>

<p>Mortgage — Execution and delivery with conditions in blank — Parol authority to mortgagee to insert terms.</p> <p>Complainant filed a bill to foreclose a mortgage, executed in blank as to conditions of payment, which blanks were filled in after delivery by direction of the mortgagor, as alleged. The court below dismissed the bill on the grounds that the authority was not shown by a preponderance of proof, and that parol authority would not be sufficient for that purpose; which decree is affirmed on the first ground stated, with an intimation that, under our statute and the weight of authority, the second ground is also tenable.</p>

<p>Partnership — Contribution — Amount of recovery — Joint wrongdoers — Judgment—Evidence—Dormant partner — Patent— Jurisdiction of State courts.</p> <p>1. The rule that no contribution can be claimed as between joint wrong-doers is inapplicable to partners, in the general form in which it is stated.</p> <p>2. The claim of a partner to contribution, in respect of a partnership transaction, cannot be defeated on the ground of illegality, unless the partnership is itself an illegal one, or unless the act relied on as the basis of the claim is not only illegal, but was committed by the partner seeking contribution when he knew or ought to have known of its illegality.</p> <p>3. The rule seems to be well settled that where the money sued for was paid pursuant to a judgment recovered by a third person against the plaintiff, such judgment is competent evidence against the defendant of the fact of the judgment and of the amount paid.</p> <p>4. In a suit for contribution by members of a firm against a member who was joined with them as defendants in a suit for a wrong for which the firm was primarily liable, but who was not served with process, being out of the jurisdiction of the court, but who was notified of the pendency of the suit by the defendants who did appear and defend, and refused to join in such defense, although a member of the firm at the time the wrong was committed, the judgment recovered is conclusive evidence against said defendant, both as to damages and costs.</p> <p>5. A dormant partner may be joined as a party in a suit by or against the firm at the option of the plaintiffs.</p> <p>6. Where two copartners paid a judgment recovered in an action of tort for which the firm was primarily liable, • the liability of a third member, against whom judgment is recovered in a suit for contribution, is measured by his interest in the firm business, and the profits resulting therefrom.</p> <p>7. The question of an invention, and its alleged use, and what is covered by it, may be litigated in the State courts, so long as the question of the validity of the patent or its infringement is not in issue. Nichols, Shepard & Co. v. Marsh, 61 Mich. 509; Manfg. Co. v. Iron-works, 63 Id. 195; Carver v. Bement, 69 Id. 149.</p>

<p>Replevin — Insufficient bond — Liability of coroner — Evidence—Exempt property.</p> <p>1. In a suit against a coroner for his failure to require a new bond in a replevin suit for attached property, on exceptions being taken to the one first given, he may defend by showing that the property was exempt from attachment.</p> <p>2. The instructions to the jury on. the question of exemption are held warranted by the testimony and statements of counsel.</p>

<p>Chattel mortgages — After-acquired property — Husband and wife— Evidence.</p> <p>1. The testimony of a wife as to matters of which she has no knowledge except as informed by her husband is incompetent.</p> <p>2. In this case, after the purchase by a husband of a saw-mill plant and other property, and. the execution by him of a real-estate mortgage to secure the purchase price, his wife joined with him in a chattel mortgage, as collateral security for a portion of the same debt, 'upon the lumber and other stock, worked and unworked, in the lumber-yard carried on in connection with said mill, which business was operated in the wife’s name, but managed by the husband, up to a certain date, when she transferred whatever interest she had to her husband, after which the mortgage was duly renewed. A creditor, who had sold lumber to the husband after such renewal, attached the lumber in the yard which had been purchased since the transfer by the wife, claiming that prior to that time she was the sole owner of the business, and that the execution of the chattel mortgage by the husband was formal, while the mortgagee claimed the reverse to be true, and sued the sheriff in trover for the attached property, claiming to hold' the same under a clause in the chattel mortgage extending its lien to all lumber, stock, or material of every kind which the mortgagors might add to said business, which business was fully identified and located, and was the same hereinbefore referred to. The circuit judge instructed the jury that said clause was valid as between the parties, but, as to lumber purchased by the husband after the transfer to him by his wife, it gave the mortgagee no superior rights to the attaching creditor, if they found that prior to such transfer the business and property belonged to her, of which fact the mortgagee had knowledge.</p> <p>The jury found a verdict for the defendant, and in reversing the judgment the Court hold that it was immaterial what financial relations existed between the mortgagors; that, if the wife’s signature was merely formal, it was of no consequence, and, if she had any interest in the business or mortgaged property, it was immaterial, as both executed the mortgage, and so long as it was unpaid, and they carried on the business, it made no difference to plaintiff in what name it was conducted; that the clause was valid and effectual as between the parties, and where such an agreement is written into the mortgage plain and specific, and there is no question but that the property sought to be held is within the description given, there is no reason why it should not be valid aá to third persons.</p>

<p>Equity — Reference—Hearing in open court — Discretion of circuit judge — Bill to annul forged deeds.</p> <p>1. Where the proofs in a chancery suit are taken in open court, and the only question in the case is brought to the attention of the court, a reference as to a defendant who is brought in by publication is unnecessary.</p> <p>2. The discretion exercised by a oireuit judge in granting or refusing interlocutory applications in a chancery suit will not be reviewed unless clearly abused.</p> <p>8. The decree in this case is held fully supported by the testimony, and is affirmed.</p>

<p>Error to superior court of Grand Rapids. (Burlingame, J.)</p> <p>Ejectment. Plaintiffs bring error.</p> <p>Tbe facts are stated in tbe opinion, and in 61 Mich. 144.</p>

<p>Error to superior court of Grand Rapids. (Burlingame, J.)</p> <p>Ejectment. Plaintiff brings error.</p> <p>The facts are stated in the opinion, and in Sheldon v. City of Grand Rapids, ante, 508, and in 61 Mich. 144.</p>

<p>Error to Berrien. (O’Hara, J.)</p> <p>Ejectment. Plaintiff brings error.</p> <p>The facts are stated in tbe opinion.</p>

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

<p>Contract of sale — Fraud—Rescission—Reasonable time.</p> <p>1. The rule that certain acts shall be performed in a reasonable time requires that the party should exercise such reasonable diligence as under all then and subsequently existing circumstances might be fairly expected. Clark v. Mowyer, 5 Mich. 472; Stange v. Wilson, 17 Id. 347; Grant v. Bank, 35 Id. 515.</p> <p>2. To entitle a party to rescind a contract on the ground of fraud or false representations he must act promptly after he has discovered the fraud or falsity of the representations; but he is entitled to a reasonable time to investigate and ascertain whether the representations made are true.</p> <p>3. When the facts are undisputed, what is a reasonable time is a question of law; but when they are controverted, or where motives of a party are involved, it is a proper question for a jury.</p> <p>4., In this case it is held that defendant’s first four requests.to charge should have been given, and that the court erred in taking the case from the jury.</p>

<p>Equity — Foreclosure of mortgage — Confirmation of sale — Appeal— Bill of revieio.'</p> <p>1. ’Where the confirmation of a foreclosure sale is objected to as effected secretly, and without notice to the defendant or his solicitors, and it appears that the defendant had such notice, it was his duty to inform his solicitors.</p> <p>2. On appeal from the confirmation of a foreclosure sale, the bill cannot be attacked, nor the decree reviewed, if the court had jurisdiction of the subject-matter and the defendant.</p> <p>3. An. objection to the confirmation of a foreclosure sale on the ground that the premises were bid in by the complainant at a great sacrifice, is overruled in the absence of a showing that if a new sale was ordered a larger or even as large a price could be obtained.</p> <p>4. The refusal of the circuit judge to grant leave to file a bill of review in this case is held to have been within Ms discretion, fairly exercised.</p>

<p>Board of supervisors — Public buildings — Bond to secure payment of laborers and material-men — Failure of committee to require — Liability for neglect — Subcontractor.</p> <p>1. A subcontractor is not one of the persons sought to be protected by Act No. 94, Laws of 1883, requiring a bond by contractors securing the payment of claims for labor and materials furnished in the erection of public buildings.</p> <p>So held, where plaintiff contracted in writing with the. original contractor to furnish cut stone for a court-house, according to the plans and specifications, which were jnade a part of the original contract, which provided that neither the building committee nor the county should be held liable for material furnished or labor performed in and about its performance.</p> <p>2. A resolution by a board of supervisors to save a building committee appointed to superintend the construction of a court-house harmless from all suits growing out of the erection of said court-house will not create a right of action against the board of supervisors for the failure of the committee to require the contractor to execute the bond required by Act No. 94, Laws of 1888, for the payment by the contractor for labor and materials furnished in the erection of said building.</p> <p>[The positions of counsel are stated in the opinion.— Reporter.]</p>

<p>Exceptions from Berrien. (O’Hara, J.)</p> <p>Respondent was convicted of selling liquor to a minor.</p> <p>The facts are stated in the opinion.</p>

<p>Building contract — Non-completion—Measure of damages.</p> <p>In a suit by a contractor upon a non-apportionable building contract not fully performed, tbe measure of damages is what the building is reasonably worth in the condition in which it is turned over to the defendant, not exceeding the contract price, less the reasonable cost of completing it in accordance with the contract. Allen v. McKibbin, 5 Mich. 449; Wild&y v. School-dist., 25 Id. 426.</p>

<p>Error to St. Joseph. (Loveridge, J.)</p> <p>Replevin.' Plaintiffs bring, error.</p> <p>The facts are stated in the opinion.</p>

(Reilly, J.) Claimant filed a claim for money had and received by the deceased in his life-time upon the sale of lands in which claimant had one-third interest, the title to which the decedent held in trust for him. The claim was disallowed by the commissioners on claims, whose decision was affirmed in the circuit court, and claimant brings error. The facts are stated in the opinion.

Mandamus. Relator applies for mandamus to compel respondents to maintain and operate a bridge. The facts are stated in the opinion.

<p>Contract — Logs and logging — Pleading—Notice of recoupment— Damages — Charge to jury.</p> <p>1. Where a contract w'ovides for the delivery, upon the oars, of all of the merchantable white pine on certain descriptions of land that the owner should deem fit for a specified market, and for the delivery of the remainder of the timber at the owner’s mill, it is his duty to designate in some propier manner the first class of logs, and if he gives a general description, and leaves the particular designation to the judgment of the contractors or their foreman, or the scaler agreed upon by the parties, which, is fairly and honestly exercised, he is bound' thereby.</p> <p>2. A notice of recoupment which alleges that, by reason of the plaintiffs’ failure to deliver logs in sufficient quantities to keep the defendant’s mill constantly supplied for sawing purposes, defendant was compelled to shut down said mill a large number of times, and keep a large number of men idle, whereby he was prevented from putting his lumber on the market, and from filling his orders and performing his contracts, and lost great gains and profits, states defendant’s claim for damages-in no other than the most speculative way, and fails to present a fact to be tried as to damages.</p> <p>8. In such a case it is not error for the court to exclude from the consideration of the jury the alleged loss of profits, and to instruct them that if defendant had men permanently employed, and was obliged to and did pay them while thus compelled to remain idle, the amount paid would be a legitimate item of damage ; but that the employés who worked by the day, and who were not paid for such lost time, he could not charge for. Allis v. McLean, 48 Mich. 438,</p> <p>4. The provision in the contract in this case for “ keeping logs of particular lengths by themselves,” as delivered on the skids at the mill, is construed to mean that the logs to be used for bill stuff should be kept separate from the other shorter logs.</p> <p>5. In a case involving an alleged double payment to a witness for work, which he denied, an expression by the court in his charge to the jury of doubt as to the honesty of the witness in receiving such double pay is held prejudicial error.</p> <p>6. Where the testimony as to a given fact is direct and positive on both sides, and plainly irreconcilable, it is the province of the jury to determine which party is right, and it is error for the court to instruct them that there is an entire misapprehension between the parties upon the disputed question.</p>

<p>Principal and agent — Statements of agent — Evidence—Trover—Damages — Pleading—Statute of limitations — Burden of proof.</p> <p>1. Where the acts of an agent bind the principal, his declarations and admissions, respecting the same subject-matter, made at the same time, and constituting a part of the res gestoe, are also binding.</p> <p>So held, in a suit to recover the value of timber cut by defendant’s contractor on land not belonging to the defendant, avIio received the proceeds of the trespass, which \A-as casual and involuntary.</p> <p>2. Where, in a suit to recover for timber cut from plaintiff’s land by defendant’s contractor, the defendant denies the trespass, and gives notice of the statute of limitations, testimony of a third party showing a settlement by defendant with him for a trespass committed on his land at the same time as the one charged by plaintiffs, and by the same contractor, which cutting extended onto plaintiff’s land, is admissible as tending to establish plaintiff’s claim, and as showing that it was not barred by the statute of limitations.</p> <p>S. Under a plea of the statute of limitations the burden is upon the plaintiff to show the commencement of suit within the statutory period.</p> <p>4. Where, in trover to recover the value of logs cut from plaintiff’s lands, it appears that the trespass was neither willful nor negligent, the measure of damages is the value of the timber on the land.1 Ayres v. Hubbard, 57 Mich. 322.</p>

<p>Fraud — Conspiracy—Pleading—Declaration.</p> <p>1. In an action for fraud, the declaration must definitely and issuably set forth the facts complained of, and relied upon for a recovery.</p> <p>3. In an action against more than one defendant for alleged false statements by which the plaintiff was defrauded, the declaration should aver a .conspiracy, and enumerate the false statements and circumstances relied upon as creating the liability, with particularity; and, if not made by all of the defendants, it should be averred that they all colluded and conspued together in such a manner as to authorize those actually making them to do so, and that they were in furtherance of the common design and fraudulent purpose.</p> <p>3. In an action for false representations or statements, the declaration must aver that the plaintiff believed them to be true, and, so believing, relied upon them, and was thus induced to take the action claimed to have resulted to his damage.</p> <p>[Counsel for defendants contended for the rules stated in the opinion. — Reporter.]</p>

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

<p>Appeal from Wexford. (Fallass, J.)</p> <p>Bill to annul a mortgage. Defendant appeals.</p> <p>Tire facts are stated in the opinion.</p>

<p>Pleading — Bill of particulars — New trial — Inconsistent positions.</p> <p>1. The office of a bill of particulars is to inform, the opposite party of the cause of action to be relied upon, which is not specially set forth in the declaration. Davis v. Freeman, 10 Mich. 188; Nugent v. Teachout, 67 Id. 571; Wright v. Dickinson, Id. 580.</p> <p>2. Parties finding that contracts upon which they have relied for recovery cannot be upheld in the courts are not permitted under the same pleadings and bills of particulars to retry then- case uj>on an entirely different contract, and one entirely contradictory to the one first claimed under, even for the purpose of meeting the opinion of the Court, and squaring their case with it.</p> <p>3. In this case it is held that, if plaintiff can recover at all, he must do so under the contract claimed upon the two former trials.</p>

<p>Contract — Pleading—Denial of execution — Parol evidence— Interpretation.</p> <p>The law of this case is held to have been settled in the former opinion (61 Mich. 454), to which the trial court conformed on. the second trial, and the judgment is affirmed.</p>

<p>Error to Cass. (O’Hara, J.)</p> <p>Ejectment. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

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

<p>Deed — Delivery—Escrow—Husband and wife — Mortgage—Homestead — Land contract — Damages—Charge to jury.</p> <p>1. Whether a deed has been delivered so as to pass title depends-upon the intention of the parties.</p> <p>2. It is ' competent for a grantor to show by parol that a deed which he had executed and acknowledged was not to be-delivered until the happening of certain contingencies, or that it was left in escrow until the happening of some subsequent-event, and a delivery contrary to such an agreement is not-binding upon him.</p> <p>3. A party has the right to have his theory of the case submitted to the jury, if supported by testimony, with proper instructions, in relation to the law in case they find the testimony preponderates in favor of such theory.</p> <p>4. A husband cannot mortgage land for" which he exchanges his-homestead, and which is to be occupied in lieu thereof as a homestead, to secure a loan from a third party with which to-pay the difference agreed to be paid on such exchange, without his wife’s signature to the mortgage.</p> <p>5. The wife’s homestead rights will be protected in whatever form. they may come in question, whether at law or in chancery.</p> <p>6. An instruction that, if a given state of facts is found by the jmy, the plaintiff is entitled to a verdict, but which ignores the theory of the defendant, which his testimony tends to support, and which is a complete defense if accepted by the jury, is erroneous.</p> <p>7. Under a land contract stipulating for a good and sufficient deed' the grantee has a right to a good title, and one not clouded or-incumbered by an outstanding life-estate in a portion of the-land conveyed.</p> <p>8. In Allen v. Atlcinson, 21 Mich. 361, it was held that the vendeehad an undoubted right to a good title, and to a deed with proper covenants; and he had a right also to insist that the title should be a marketable one, not open to reasonable objection.</p> <p>9. The measure of damages for a willful refusal by the defendant to convey land agreed to be received by the plaintiff on an exchange of farms, as part payment for the farm deeded by him to the defendant, is the fair, market value of the defendant’s farm at time of the breach.</p>

<p>Bills and notes — Parol evidence to contradict terms of instrument —Fraud—Want of consideration — Surety.</p> <p>1. Obtaining the signature of a third party to a note under a promise by the payee that the maker should not be liable thereon, which is not kept, is not such a fraud as will nullify the note.</p> <p>2. Parol proof that a maker of a promissory note was induced to sign it by the agreement of the payee that he should not be held liable thereon is inadmissible to vary or contradict the legal effect of the instrument.</p> <p>3. Where, after the execution and delivery of a note, a third party, who had refused to become surety thereon, was induced to sign it as a maker, by the promise of the payee that it should never be used against him, and that his signature was only desired to aid in securing prompt payment by the real payor, who took no part in the transaction, such facts may be proved in a suit by the payee upon the note to show a want of consideration for the promise of such accommodation maker.</p> <p>[The points of counsel are fully stated in the opinion-—Reporter.]</p>

<p>Sale — Passing of title — Submission to jury.</p> <p>"Whether the title to personal property passes or not, where something remains to be done before the exact amount to be paid therefor can be arrived at, depends upon the intention of the parties, and is a proper question for a jury.</p>