Volume 72 — Michigan Reports

<p>Toumships — Bond of treasurer — Authority of board to release sureties —Evidence—Bias of juror — Challenge. 1</p> <p>1. In a suit upon a township treasurer’s bond, his books are competent evidence to show his indebtedness to the township.</p> <p>2. A supervisor who took part in a settlement with a township treasurer, and examined his books and vouchers, may testify to the amount found due the township.</p> <p>3. Where on a settlement with a township treasurer the amount due the township, and for which he fails to account, is undisputed, and no well-grounded apprehension exists as to the legal liability of the bondsmen for the debt, the township board has no legal authority to release the principal or his sureties from his or then.- legal obligation to pay the amount to the township.</p> <p>4. A juryman may be asked which side he would be inclined to favor if, at the close of the testimony, it was equally balanced as between the parties, to ascertain his bias, if any exists, to aid counsel in determining as to the exercise of his right to a peremptory challenge. Monaghan v. Ins. Co., 53 Mich. 238.</p>

<p>Benefit associations — Certificate of membership — Beneficiaries—Will.</p> <p>In this case it is held that while, technically speaking, the decedent may not have died seized of the insurance'held by him in the defendant association, his intention was to pass it by his will to plaintiff, as also all of his other property, and the judgment is affirmed.</p>

(Buck, J.) Respondent was convicted of carnally knowing and abusing a girl under the age of 14 years, and sentenced to State prison for 50 years. The facts are stated in the opinion.

<p>Error to Alcona. (Tuttle, J.)</p> <p>Assumpsit for taxes paid under protest. Defendant brings error.</p> <p>Tbe facts are fully stated in tbe opinion.</p>

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

<p>Error to Wayne. (Reilly, J.)</p> <p>Assumpsit. Plaintiffs bring error.</p> <p>Tbe facts are stated in tbe opinion.</p>

<p>Appeal from Saginaw. (Gage, J.)</p> <p>Bill for specific performance of contract. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

(Steere, J.) Bill by adult heirs to have a trust declared in their favor to make them share ratably in an uncompleted homestead entry. Defendants appeal. The facts are stated in the opinion.

<p>Pleading — Notice of recoupment — Gontract.</p> <p>1. A notice of recoupment ought to be as specific as a declaration.</p> <p>2. In this case it is held that no legal contract was made out by defendant, and that there was nothing for the jury to pass on by way of recoupment.</p>

(Gartner, J.) . Judgment creditors’ bill. Defendant appeals from order requiring him to pay over a certain sum of money to the receiver. The facts are stated in the opinion.

<p>Error to Clinton. (Smith, J.)</p> <p>Respondent was convicted of a violation of the liquor-law.</p> <p>The facts are stated in the-opinion.</p>

<p>Equity — New trial at law — Perjury,</p> <p>1. The weight of authority is decidedly against the granting of a. new trial in a court of equity to impeach the testimony of witnesses, or because a party has committed perjury, or even suborned a witness to commit perjury. Gray v. Barton, 62 Mich. 186.</p> <p>2. It is best, as a matter ot public policy, that a judgment obtained' in a court of law should stand, unless it is manifestly against conscience. In that case, or in a case where a perjury of a witness has been fully established by judicial determination, or by written documents, equity may very appropriately deny relief.</p>

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

(Watts, J.) Bill to enforce specific performance of agreement as to testamentary disposition of property. Complainants appeal. Tbe facts are stated in tbe opinion.

(Newton, J.) Bill to set aside deeds and for other relief. Complainant Sager appeals. The facts are stated in the opinion.

(Tuttle, J.) Assumpsit to recover taxes paid under protest. Plaintiffs bring error. The facts are stated in the opinion.

<p>Deed — Mental incompetency of grantor — Duress.</p> <p>The deed sought to be set aside is held to have been procured through threats, in executing which the grantor acted under a species of duress, and the relief prayed for is granted.</p> <p>[Briefs are confined to a discussion of the testimony.— Reporter.]</p>

<p>Taxes — Return of land by treasurer essential to a valid sale—</p> <p> Absence of supervisor’s certificate from, assessment roll, from which leaves appear to have been removed— </p> <p> In absence of proof, no presumption arises that the roll or absent leaves ever contained, certificate. </p> <p>1. A return of land by the town treasurer is essential to a valid sale of said land for taxes.</p> <p>2. Where on the introduction of an assessment roll from which certain leaves appeared to have been removed, the supervisors certificate was found to be wanting, and no proof was made that the roll or the absent leaves ever contained it, no presumption arises of such fact.</p>

<p>Error to Oakland. (Moore, J.)</p> <p>Respondent was convicted of seduction. Reversed. The facts are stated in the opinion.</p>

<p>Diquor traffic — Civil damage law — Injury to widow by death of husband — Evidence—Damages—Qualification of juror.</p> <p>1. Tlie statute giving a right of action to the wife or other person “injured in person or property or means of support by any intoxicated person, or by reason of the intoxication of any person,”' is broad enough to include the widow, who must be considered “a person,” and who is certainly injured in her “means of support” by the death of her husband from intoxication, or by reason of the intoxication of himself or another person.</p> <p>2. Under the statute giving a right of action for injury occasioned by an intoxicated person, it is not for the injured party to produce proof, or for the jury to speculate, upon the probabilities whether the intoxication was the natural cause of the act which caused the death. The act itself fixes the liability for the damage upon the person selling or furnishing the liquor which caused the intoxication.</p> <p>8. In a suit by a widow for damages resulting from the death of' her husband from injuries received at the hands of an intoxicated person, evidence of the habits of the husband as a drinking man previous to the date of his injury is pertinent as bearing upon the question of damages; and proof that he was peaceable and quiet when sober, and noisy and quarrelsome when drunk, is, also admissible, as bearing upon the question of his intoxication at' the time, and whether such intoxication contributed to his injury and death.</p> <p>4. It is error to exclude, as an element in the computation of' damages to be awarded a widow for loss of support by reason of the death of her husband, his life expectancy, and ability . during such period to support his wife.</p> <p>5. No man who is so prejudiced against another or his business that-his prejudice will, of itself, prevent him from doing justice tO' the testimony of the person against whom such prejudice is entertained, ought to sit as a juror in any case where such person is a party, and in which his liberty or property rights are involved.</p>

<p>Logs and logging — Booming companies — Negligence—Evidence—Damages — Interest.</p> <p>1. Under the statute providing for the organization of log-running and booming companies, the corporation has the right on the streams where it can lawfully do business to construct, use, and maintain all necessary booms for that purpose, the location,, extent, manner of construction, and number of which is left h> its own determination, subject to the statutory restriction that,, so far as practicable, they must be constructed and used in such a manner as to allow the free passage of boats, vessels,, crafts, logs, lumber, timber, or other floatables along the stream.</p> <p>2. In a case involving the question of whether a booming company properly managed its business of log driving during a given season, a witness who is shown competent to testify on the subject may aid the jury by giving his opinion whether the-work was properly done or not.</p> <p>3. In a suit against a booming company for obstructing a river, and thereby preventing the plaintiff from puttipg his logs into the river by July 1 of a given year, as he had contracted to do, the manner in which he did his job, or at what time he did it, whether within the contract or not, is no concern of the defendant, and could have no effect, by way of excuso or otherwise, for- any obstruction to the right of passage to plaintiff’s logs down the stream.</p> <p>4. A question giving the contents of a paper which a witness is being interrogated about, and which is not introduced in evidence, is incompetent.</p> <p>5. The requests to charge of defendant, set forth in the opinion, are held to have been properly refused, for reasons therein stated.</p> <p>6. Interest cannot be allowed upon a claim for expenses paid, as claimed, by reason of the wrongful act of the defendant, the existence of which claim is only determinable by the verdict.</p>

Mandamus. Relator applies for mandamus to compel respondent to repair a bridge. The facts are stated in the opinion.

<p>Principal and agent — Railroad companies — Employment of porter by station agent</p> <p>1. In this case plaintiff is held not to have made a case on his own testimony; that the defendant’s station agent had no authority to employ plaintiff, and that its superintendent never assented to such employment.</p> <p>2. It is not for a jury to determine whether the work done by a plaintiff under the orders of a station agent, who had no authority to contract for a railroad company, was beneficial to the company, which, acting through its proper officers, had the right to determine whether or not it wanted the services of a porter at the station.</p>

<p>Logs and logging — Contract—Scale—Evidence—Bills and notes— Principal and surety.</p> <p>1. Where a contract for cutting and manufacturing logs into lumber provides that 'the product only is to be measured “when shipped,” there is no occasion for a “woods scale,” and testimony showing the amount of logs cut is immaterial.</p> <p>2. It was competent for plaintiff to show why the notes for the alleged balance due him from defendant were, for purposes of discount, made nominally by plaintiff to defendant’s order. As between each other it is competent to show who was principal and who was surety.</p> <p>3. It was competent for plaintiff to testify whether the alleged settlement with defendant was final, that point being one on which defendant raised a dispute; and had himself testified.</p>

(Swift, J.) Respondent ivas convicted of malicious injury to a building, and sentenced to State prison for four years. The facts' are stated in the opinion.

(O’Hara, J.) Respondents were convicted of larceny, and on certiorari to tbe circuit court tbe judgment of tbe justice was affirmed. Tbe facts are stated in tbe. opinion.

(Steere, J.) Respondent was informed against for assault with intent to murder, and convicted of assault with intent to do great bodily barm less than murder. The facts are stated in the opinion.

(Hart, J.) Respondent was convicted in justice’s court of an assault, which conviction was affirmed on certiorari at the circuit, and is reversed on error. The facts are stated in the opinion.

(Burlingame, •J.) Respondent was convicted of bigamy, and sentenced to $tate prison for five years. The facts .-are stated in the opinion.

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

<p>Appeal from Wexford. (Aldrich, J.)</p> <p>Bill to redeem. Complainants'appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Taxes — Law of 1885 — Sale for taxes of 188% and 1888 — Validating act of 1887 — Constitutional law.</p> <p>1. The tax law of 1885 was prospective only in its operation, and a sale of land under its provisions for the taxes of 1882 and 1883. is absolutely void.1</p> <p>2. Section 2 of Act No. 17, Laws of 1887, which attempts to validate sales made under the tax law of 1885 for taxes assessed prior to the passage of the act, is unconstitutional.</p> <p>3. It is competent for the Legislature, by a retrospective statute, to ■ ’ cure defects in legal (tax) proceedings where they are in their nature irregularities only, and do not extend to matters of jurisdiction, unless expressly forbidden so to do; but the proposition that the Legislature can make good that which was void when done, is utterly at variance with the fundamental principles of law.2</p>

<p>Railroad companies — Condemnation proceedings — Right of crossing another road — Petition—Map of proposed route — Determination of State crossing hoard.</p> <p>1. The power to appoint commissioners in railroad condemnation proceedings is conferred by How. Stat. § 3332 (as amended by Act No. 7, Laws of 1887); but the right to exercise it depends upon the existence of certain facts, which must be made to appear by petition to the court empowered to make the appointment.</p> <p>%. An averment in such a petition that it is. necessary for public use to take, for the use of the petitioner’s road, the property and rights described in the petition, to the extent and for the purposes therein stated, is sufficient.</p> <p>"8. Whether the property in. question in this case was necessary to accommodate the spur tracks mentioned, and whether the taking was necessary to develop business along the line of petitioner’s road, were questions to be determined by the board of' directors, and the petition sufficiently alleges that this has been done, and gives the conclusions of said directors.</p> <p>4. Whether or not the necessity and public use required the taking of the property were questions for the commissioners to determine, and they determined that they did after viewing the premises and hearing the testimony, and in such case their determination of these questions will be held final.</p> <p>7). It was unnecessary for it to appear that more was done in the construction of the road than is stated in the petition, before appointing commissioners; and if more is stated than the statute requires, it will be no reason for refusing the appointment, if the statutory requisites appear, and are substantiated before the court making the appointment. The petition -in this case states that the map of the road sought to be constructed, showing the property asked to be condemned, was made and filed in the proper county.</p> <p>73. Upon the map filed by the petitioner, its road at Bast Saginaw appears, with the terminal branches for which condemnation is now sought. They were a part of the proposed road, designated and surveyed with the main line at the same time, and there is no reason why for the purposes of the map they should not be considered a part thereof. As such, they received the certified approval of the board of directors, which should be held sufficient • to give the State board of railroad crossings jurisdiction to act, and to make the proper order in the premises.</p> <p>'7. It was not necessary that it should be found essential to the development of business along the line of the road that spur tracks or branches should be constructed by any other board or tribunal than a majority of the directors, before the State crossing board might act, and this determination is stated in the petition.</p> <p>8. The discontinuance of the proceedings as to the King-street track could not affect the action to be taken as to the other branches.</p> <p>8. The purpose for which the rights are sought to be condemned in this case is held to be a public use.</p> <p>10. Before a railroad company can construct its road it must make a survey of the route and line it desires for that purpose, and' a map thereof, and file the same in the office of the register of deeds as required by statute, and it may then secure the right of way over the surveyed line by private purchase of the' owners, and, if unable to do so, may institute condemnation proceedings for that purpose.</p> <p>11. The map and survey adopted by the board of directors is-intended to and must designate the line of road by which the place of termination is to be reached, and the line or lines-upon which it is proposed to enter such place, and the ground to be occupied for its terminal facilities for the transaction of its business; and the property and franchises of another railroad company, or of any company, like the property of an individual, when condemnation is sought, is subject to the-same proceedings, except that the franchises of the former cannot be seriously impaired, or to the extent of depriving it-of the same.</p> <p>13. The line or lines which the board of directors may adopt for-the road on entering a city or village at the terminal points, when made a part of the original survey and designated upon, the map, become a part of the main line of the road; and when the map and survey have received the approval of the-State crossing board the rights of any other road may be condemned for its crossings, to the extent above stated.</p> <p>13. The case of the construction of a branch or spur, or an extension not included in or with the main line, as a part thereof, after the map and survey have been adopted and approved by the State crossing board, or after the railroad has been completed, is not presented on this record.1</p> <p>[The points of counsel are fully stated in the opinion. —Reporter.]</p>

<p>Certiorari to the State Board of Bailroad Crossings..</p> <p>The facts are stated in the opinion in the former-case.</p>

<p>Assignment for benefit of creditors — Fraud—Preferences—Bill in. equity by creditors.</p> <p>1. How. Stat. § 8744, was intended to give to the creditors of an-insolvent debtor ample relief against the incompetency, neglect,, or fraud of the assignee.</p> <p>2. A creditor may file a bill, under How. Stat. § 8744, to set aside-a chattel mortgage, alleged to have been given in anticipation of an assignment by the mortgagor, and to secure to the mort- ■ gagee a preference, to which transaction the assignee is alleged to have been a party, without obtaining an order from the-court requiring the assignee to institute proceedings to annul, said mortgage.</p>

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

(Williams, J.) Bill to enjoin tbe disturbance of tbe possession of complainant of land claimed by defendants as a public street. Defendants appeal. Tbe facts are stated in tbe opinion.

<p>Bills and notes — Execution by maker — Evidence—Cross-examination — Expert testimony — Genuineness of signature — Bona fide holders — Principal and agent — Fraud— Ratification.</p> <p>1. Where the execution of a note is denied by the defendant, and the agent who claims to have taken it for the plaintiff swears that he was present and saw the defendant sign it, he may be cross-examined fully as to all that took place at the time of such alleged signing.</p> <p>2. Where an agent for a harvester company went with a debtor of - his to the house of a party who had given said debtor a note for “ Bohemian oats,” and by agreement between the three the Bohemian-oat note was surrendered, and a note for the same amount given by the payor to the harvester company upon one of its printed blanks, purporting to be for a machine sold to the payor, and in a suit by the company upon the note the agent testifies to its execution, and on his cross-examination denies having any knowledge of the consideration for Hie note in place of which it was taken until after such exchange, he may be asked if he has not stated out of court that he had such knowledge, and if he denies making such statements the defendant may prove, them as a part of his defense.</p> <p>8. In a suit upon a note, the execution of which is denied by the defendant, he may show by the cross-examination of an agent who claims to have taken it for the plaintiff, and who swears to its execution by defendant, as affecting the credibility of the witness, the negotiation by him prior to the date of the note in suit of another forged note purporting to be signed by the defendant, which testimony is also admissible as tending to show that the witness obtained the note in suit fraudulently. Stubly v. Beachboard, 68 Mich. 402 (head-note 5).</p> <p>4. Where expert witnesses testify, entirely from comparison, to the genuineness of a disputed signature, it is competent on cross-examination, for the purpose of testing the value of their testimony, to show them other signatures properly in evidence, pm-porting to be made by the same person, and by their comparison of the same to show that they differ radically in their views of the similarity of letters, and that they might be easily mistaken in their assumptions from such a comparison; and the fact that the witnesses do not know whether the latter signatures were made by one man or two but adds to the value of the test.</p> <p>5. A principal cannot ratify the fraud of an agent by accepting a note which is the fruit of such fraud, and suing upon it, and at the same time claim to be a good-faith holder of the note because the agent failed to acquaint him with the circumstances under which he procured it when he sent it to the plaintiff, who was led to suppose that he had taken it in the ordinary course of his agency.</p>

<p>Taxes — Law of 1885 — Sale of lands assessed prior to passage of act — Constitutional law.</p> <p>This case is ruled by Humphrey v. Auditor General, 70 Mich. 293, and Hall v. Perry, 73 Id. 202, in which it is held that sales-for delinquent taxes assessed under the 1882 tax law could not-be made under the law of 1885, which was prospective only in. its operation.</p>

<p>Municipal corporations — Neglect of officers — Liability—Fire limits></p> <p>Municipal corporations, under their charters and ordinances, do not become insurers of the property within their corporate limits-from destruction by reason of the neglect or refusal of their officers and agents to enforce their ordinances.1</p> <p>So held, where the common council of a city established fire limits, and by ordinance prohibited the erection of wooden buildings therein, and was sued for damages sustained by reason of the burning of a wooden building erected within said, limits with the full knowledge of the city authorities.</p>

<p>Liquor traffic — Sale to minor — Action by parent — Damages—Jury— Challenge for cause.</p> <p>1. In a suit involving the alleged illegal sale of liquor, a juror is-subj'ect to challenge for cause who ‘swears on his voir dire that he has a prejudice against the sale of liquor.</p> <p>2. One who believes that “a minor is as able to buy a glass of' beer as a man of forty,” and confesses in the jury-box that he is not in favor of enforcing the law prohibiting such first-named sale, is not a proper juror in a case involving the alleged violation of said law, although upon inquiry by the-court he states that he thinks he can render a .verdict in accordance with the law and evidence.</p> <p>3. The peremptory challenge of a juror, after a challenge for cause-has been erroneously overruled, will not cure the error where it appears that the party so challenging exhausted his peremptory challenges, as he may have been thereby obliged to. retain a juror whom he would otherwise have excused.</p> <p>4. Fairness to parties litigant demands that the jury should be free-from bias and prejudice in all cases, and that they enter upon the trial with a single desire and purpose of doing equal' and exact justice between the parties, and that according to, the law and the evidence -given them in open court; and when, a juror confesses himself prejudiced against the enforcement of the law or against the party, he is not a fair juror, and should not be permitted to sit in judgment upon the rights of' others who are seeking redress under and according to law. Monaghan v. Ins. Co., 53 Mich. 246.</p> <p>5. A sale of liquor to a minor under the age of 18 years gives a right of action for damages under Act No. 92, Laws of 1877, which cannot be lessened by the fact of sales by others to the-minor, and proof of such sales is inadmissible in such a case.</p> <p>6. In a suit under Act No. 92, Laws of 1877, to recover damages-for the sale of liquor to a minor under the age of 18 years, proof of such sale entitles the plaintiff to $50 actual damages at least, and to such exemplary damages as the jury see fit to-award under all of the circumstances of the case, not exceeding the amount claimed in the declaration.</p>

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

<p>Fraud — Charge to jury.</p> <p>The language used in that portion of the charge of the court quoted in the opinion is held to have been misleading, and to have given the jury the impression that the language of the request repeated in the charge was adopted by the court, and that they were instructed that everything should be so clear and conclusive as to leave no rational doubt in their minds as to the existence of the fraud charged.</p>

<p>Mortgage — Assignment of interest therein — Priority of claims.</p> <p>In this case it is held, .upon the facts stated in the opinion, that ' an assignee of a §4,800 interest in a mortgage is entitled to have said claim first satisfied, on foreclosure, as between the assignor and assignee.</p> <p>[Brief confined to a discussion of the testimony. — Reporter.]</p>

<p>Appeal from* Clinton. (Smith, J.)</p> <p>Bill for specific performance. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Benefit associations — Knights of Honor — Certificate—Proofs of death — Denial of execution.</p> <p>1, Under the constitutions and regulations of the Knights of Honor, when the supreme lodge signs a benefit certificate, and forwards it to the subordinate lodge, the contract is complete, and it is the duty of the subordinate lodge to deliver it, and it holds it for the member until delivered to him.</p> <p>3. In such a case, if the local lodge assumes the right to retain the certificate because of alleged fraudulent practices and representations of the member at time of becoming such, the beneficiary in a suit to recover the insurance may be excused from producing the certificate on the trial.</p> <p>3. Where, in such a case, there is sufficient testimony to enable the jury to determine what the contract of insurance was, if the certificate contains any special provisions or limitations which do not appear from the constitutions and regulations and other evidence in the case, it is the defendant’s duty to-produce it.</p> <p>4.. Insurance, if it may be so called, in benefit associations, is usually for the benefit of the widow or other person dependent upon the member in his life-time, and where the constitution makes it the duty of the subordinate lodge to report the death of a member to designated officers of the supreme lodge, and to make a report to the state medical examiner of the circumstances of his last illness and death, and to notify the beneficiary that it is unnecessary to employ or pay any person for obtaining payment of the benefit, the intention is manifest, that the officers of the local lodge undertake to make and certify the proofs of death, and to do everything required to place the beneficiary in the possession of the benefit secured by the certificate.</p> <p>5. When, in a suit to recover such benefit, the defendant sets up-the death of the member, and refuses to pay on the ground of fraud practiced in becoming such, it will be presumed that proofs of death were made by the subordinate lodge.</p> <p>6. Where, in such a case, the declaration avers that there was duly prepared a paper, in the usual form, assuring to the member and to the plaintiff the benefit sued for on the death of the member, which averment is not denied by the defendant under circuit court rule 79, the execution of the certificate will be-deemed to be admitted for the purposes of the trial, which admission will support a verdict in favor of the plaintiff, although the certificate is not introduced in evidence.</p>

<p>Drains — Improvement—Assessment of benefits — Lien for amount of tax — Warranty deed — Covenant against incumbrances.</p> <p>1. Drain taxes assessed under the provisions of chapter 40, How. Stat., became a lien as soon as they became a charge on the-land, by the assessment of benefits made by the drain commissioner.</p> <p>2. Under chapter 40, How. Stat., the assessment was made by the-drain commissioner, and the action of the supervisor was merely ministerial, for the purpose of collection; he having no-authority to change or modify such assessment, nor to review it in any manner, but his duty simply being to levy the amount assessed by the drain commissioner upon his tax roll.</p> <p>3. Under the drain law of 1881 (chapter 40, How. Stat.) the mere-delay of the drain commissioner to present the assessment list to the supervisor, or of the supervisor in extending it upon the tax roll, did not invalidate the hen attaching- to the land from the time of the assessment of benefits by the drain commissioner..</p> <p>4. A covenant against incumbrances, made after the assessment of benefits by a drain, commissioner, but before the supervisor has-extended the tax, is broken as soon as made.</p> <p>[The points of counsel are stated in the opinion.— Reporter.]</p>

<p>Bills and notes — Payment—Statute of limitations — Contract of sale — Passing of title.</p> <p>Where the payor in certain notes agreed with the payee to send! him at a designated place certain goods, on which the payee was to pay the freight, and indorse a given sum on the notes, the sale is complete on receipt of the goods, at which date the payor is entitled to have the indorsement made.</p>

<p>Appeal from Kalkaska. (Fallass, J.)</p> <p>Bill in aid of execution. . Defendants appeal.</p> <p>The facts are stated in the-opinion.</p>

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

<p>Sale — Sample—Particular purpose — Latent defects — Return of property — Findings of fact.</p> <p>1. A vendee who discovers a latent defect in an article purchased by sample, and for a particular purpose, known to the vendor, after its delivery, may return it to the vendor.</p> <p>2. The Court reverse the judgment in this case for want of necessary findings of fact, treating it as a mistrial.</p>

(Simpson, J.) Eespondent was convicted of rape. Conviction set aside and respondent discharged. The facts are stated in the opinion.

<p>Life insurance — Application—Agent filling in answers of applicant— Fraud.</p> <p>This is a case involving alleged false answers by an applicant for life insurance to questions regarding past sickness and medical attendance, and it is held that the facts as to what was asked and answered rest in the conflicting proofs, and that the jury must have found that the agent put down answers that the applicant never made, and that she did not know that she was signing any such statements, and the case is held not to differ in principle from Brown v. Ins. Co., 65 Mich. 306, or from other cases involving similar questions, and the judgment, against the defendant is affirmed.</p>

<p>Bills and notes — Notice to indorser — Diligence—Joint maker — Diability of parties to commercial paper.</p> <p>1. The rule requiring an indorser to be promptly notified of the dishonor of a note is one not of form, but of substance. It is a legal condition of the contract that he shall be notified or discharged, unless where reasonable diligence fails to find him, and this rule requires that the person giving the notice shall use such means as are reasonably calculated to find out the indorser’s residence.</p> <p>3. There is no legal presumption that the receiving teller at a bank knows anything about the parties on discounted paper, although he may do so.</p> <p>3. It is the plain and obvious duty of a notary to apply to the officers of his own bank for information as to the residence of an indorser, and if they cannot give it to inquire where it is payable, as well as, in default of both, to seek further, which search, while not required to be unreasonably long where he has no clue, should be real, and not formal.</p> <p>4. A second indorser, by putting his name above that of the payee, who has indorsed the note for the accommodation of the maker, chooses to make himself a joint maker, and disqualifies himself from recourse to the first indorser as hable to him in the order of time.1</p> <p>■6. It was held in Greusel v. Hubbard, 51 Mich. 95, that parties must sue and be sued on negotiable paper in the order in which they have seen fit to sign it.</p> <p>fi. A declaration in a suit under the statute against the indorser as well as the maker, must set forth a paper title accordingly.</p> <p>7. Whether a firm can buy paper on which one of its members' is a joint maker, and sue the other maker and an indorser under the statute in a suit at law, not decided.</p>

Mandamus. Rélator applies for mandamus to compel respondents to register him as a voter' in the Fourth precinct in the Second ward of the city of Detroit. The facts are stated in the opinion.

<p>Adverse possession — Oceupaney of portion of premises claimed.</p> <p>Í. Adverse possession, for the statutory period, of 40 acres of land, under a recorded deed covering the entire 160 acres, will not, of itself, give the occupant title to the land not so actually • occupied.</p> <p>2. In Murray v. Hudson, 65 Mich. 670, it was held that evidence of the adverse use, for the statutory period, of a parcel of land as a wood lot appurtenant to a farm, in the usual and ordinary way pertaining to the ownership of farm lands, was -a good defense as against .one claiming under the original title.</p> <p>[The points of counsel and authorities cited are stated in the opinion. — Reporter.]</p>

(Williams, J.) Bill to enjoin the sale of land for an alleged illegal bridge tax. Complainants appeal. The facts are stated in the opinion.

(Gridley, J.) Bill to set aside mortgages on the ground of the alleged mental incompetency of the mortgagor. Defendant appeals. The facts are stated in the opinion,

<p>Error to Wayne. (Reilly, J.)</p> <p>Assumpsit for rent. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Constitutional law — Legislative journals — Report of substitute aj^er expiration of fifty-day limit — Reading bill by title.</p> <p>1. It was held in Attorney General v. Rice, 64 Mich. 885, that parties could not stipulate or agree, or admit by pleading, that a statute was not properly or constitutionally passed by the Legislature, nor could parol proof be used for that purpose.</p> <p>2. Without determining how far the legislative journals may be used to impeach duly authenticated acts of the Legislature, the courts certainly ought to have the right to open said journals to ascertain whether the fraud or mistake of some clerk or employé of the Legislature, or its committees, has not imposed upon the statute-books a different law from the one actually passed, or to determine whether the requisite number of votes were given under the Constitution to pass a law, when that instrument requires that the ayes and noes shall be entered upon the journals.</p> <p>8. If the object of an act of the Legislature is fully expressed in its title as passed, the form or status of the title during any of the preceding stages of legislation is immaterial.</p> <p>4. A substitute cannot be considered a new bill. Art. 4, § 28, Const.</p> <p>5. The legislative practice of reading a bill twice by its title, and oi»y once at length, has been maintained too long in this State to be now overthrown by the courts.</p> <p>[The points of counsel are stated in the opinion.— Reporter.]</p>

(Hooker, J.) Bill filed for an accounting, etc. Complainant, and all the defendants except the Perrins appeal. Decree entered in this. Court in accordance with opinion, in which the facts are stated.

<p>Constitutional law — Libel—Act of 1885 — Criminal charge— Bastardy — Privilege—Files in civil ease — Evidence— Damages.</p> <p>1. Act No. 233, Laws of 1885, as amended by Act No. 139, Laws-of 1887, limiting the recovery in suits brought for libel in certain cases to actual damages, as defined in said act, is not within the power of constitutional legislation.</p> <p>2. In an action for libel the plaintiff may show that various other persons called his attention to the libelous article.-</p> <p>3. The mischief of a libel consists in the fact that it is actually seen by third persons, and the circulation of a paper is allowed to be shown, as making it probable that the article has been read by several persons.</p> <p>4. There is no rule of law which authorizes any but the parties interested to handle the files or publish the contents of their matters in litigation.</p> <p>5. One of the reasons why parties are privileged from suit for accusations made in them pleadings is that their pleadings are addressed to courts where the facts can be fairly tried, and to no other readers.</p> <p>6. The public have no rights to any information on private suits till they come up for public hearing or action in open court; and, when any publication is made involving such matters, they possess no privilege, and the publication must rest on either non-libelous character or truth to defend it.</p> <p>7. It has been uniformly held that the public press occupies no better ground than private persons publishing the same libelous matter, and, so far as actual circulation of libels is concerned, there can be no question which is more likely to spread them.</p> <p>8. Any one, whether reporter or otherwise, who undertakes to give to the public the contents of a document which speaks for itself, and in which he has no personal concern, is bound, if he would reduce his liability, to use such a degree of care as is reasonably sure to prevent mistake, and to publish nothing not so obtained, which will inure to the injury of another.</p> <p>9. The following propositions are summarized from the opinion of Mr. Justice Campbell:</p> <p>a — When a man is charged with doing what if done by him can be nothing else than a crime, it cannot be said not to involve a criminal charge because other persons might not be so guilty.</p> <p>b — It is the thing charged on the person libeled as done by him, and not by some one else, which makes the libel. It must especially injure him, if believed, among those who know him personally, and ii to them the charge made involves a crime, the degree of which makes it disgraceful, it involves it none the less because the publisher did not so consider it by mistake of fact or law.</p> <p>c — There is no room for holding in a constitutional system that private reputation is any more subject to be removed by statute from full legal protection than life, liberty, or property. It is one of those rights necessary to human society that underlie the whole social scheme of civilization. It is a thing which is more easily injured than restored, and where injury is capable of infinite mischief; and, on the other hand, it is one where the injury is frequently, and perhaps generally, aggravated by malice. The law has therefore always drawn distinctions between intentionally false and wicked assaults on character, and those which were not actually designed to create a false impression, although necessarily tending to injure reputation if false in fact, but it has made both actionable.</p> <p>d — It is not competent for the Legislature to give one class of citizens legal exemption from liability for wrongs not granted to others; and it is not competent to authorize any person, natural or artificial, to do wrong to others without answering fully for the wrong.</p>

<p>Marine insurance — Abandonment—Notice—Acceptance—Liability of insurer.</p> <p>1. An abandonment once made and accepted fixes the rights of the parties, and renders the insurers liable as for a total loss.</p> <p>2. Where, upon receiving notice of the abandonment of a vessel by the owners, the insurers take her in charge, put her in the dry-dock, and cause her to be repaired at an expense exceeding one-half of her value, and do not return, or offer to return, the vessel to the owners, these acts amount to an acceptance, and the title passes to the insurers.</p> <p>3. On receiving notice of abandonment, the insmers have a right to refuse acceptance until they make inquiry into the cause of the accident, and if it was occasioned by any peril not insured against, or by neglect of parties having the vessel in charge for the owners, or because of her unseaworthiness, or of other causes excepted in the policy, their liability will not attach; but they cannot accept the vessel and defer these inquiries until after suit is brought, and then for the first time set up a claim that their acceptance is not conclur-</p> <p>4. A notice that an insured vessel is ashore át a stated place, and that the owners abandon the boat and claim a total loss, with request to the agent to whom the notice is directed to inform the underwriters, is a sufficient notice of abandonment.</p> <p>5. By the well-established principles of marine insurance a deed of abandonment is not essential to the rights of either party, as the title passes, and the property vests in the insurer, immediately on abandonment. No particular form of notice is necessary, and, unless required by the policy, it need not be in writing. Trans. Co. v. Ins. Co., 59 Mich. 228, 229.</p>

<p>Contract — Failure to deliver lumber — Lien—Equity—Damages.</p> <p>This case involves the alleged failure of defendants Leaton and Upton to perform a contract for the manufacture and sale of lumber, which performance was secured by a lien upon the lumber, and 'the Court find such breach, and decree that said defendants shall pay to complainant the difference between the contract price of the lumber sawed and the cost of replacing it. The case is one purely of fact, and reference is had to the opinion for further amplification of the facts.</p>

<p>Sale — Credit—Burden of proof — Evidence—Notice to produce letters.</p> <p>1. "Where the fact of a sale of goods was not disputed, but the controversy was as to its terms, the testimony of the agent who-made the sale that he sold the goods to the defendant for a price named is not incompetent as stating a conclusion of law.</p> <p>2. A notice to produce letters to be used as evidence on a trial, which are in the possession of the client in another state, and to procure which required that they be forwarded by the next mail after the receipt of telegram to mail them, is unreasonably short.</p> <p>3. A question calculated to raise improbabilities in favor of the party asking it is proper.</p> <p>• 4. In a case involving a sale of goods claimed by the defendant to have been made on time, which was denied by the plaintiff, evidence of the financial standing of the defendant at or about the time of the sale is admissible.</p> <p>5. "Where a letter written by the defendant to the plaintiff, and! relating to the subject-matter of the suit, is offered in evidence by the plaintiff, upon which appears an unsigned memorandum not so relating, and not written by the defendant, and the author or purpose of which does not appear, the memorandum is no part of the letter, and immaterial as evidence in the case.</p> <p>6. Where the sale and delivery of goods is undisputed, but the contest is over the terms, the vendor claiming it to have been for cash and the vendee upon credit, proof of such sale and delivery raises a presumption that the sale was for cash, and the burden is upon the vendee to establish the contrary.</p>

<p>Error to St. Joseph. (Loveridge, J.)</p> <p>Assumpsit under How. Stat. § 4225. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Negligence — Railroad companies— Trespassers — Station grounds— Manner of ingress and egress.</p> <p>1. It is impracticable to keep off trespassers from an open railway track, and all who go upon it do so on their own risk of such dangers as are incident directly to such use.</p> <p>2. Under all the decisions made in this State on the subject, a railway company which has provided all reasonable facilities for ingress and egress from its station-houses has done its full duty in that regard, and cannot be bound to suppose that passengers who do not know the way will neglect the means open to their sight, and go off in the darkness somewhere else.</p>

<p>Contract of employment — Discharge of employé — Practice—Cross-examination — Pleading—General issue.</p> <p>1. Facts relating to the matters given in evidence on the direct examination of a witness, and which have an important hearing upon the issue, may be-shown on his cross-examination.</p> <p>2. A defense which is confined to a refutation of the facts stated in the declaration, and necessary to be proved in order to enable the plaintiff to recover, may be made under the general issue.</p>

<p>Contract — Public policy — Sale of estimates of timber — Commissions —Evidence—Fads equally within knowledge of the deceased — Charge to .jury.</p> <p>1. Li a suit by executors upon a verbal contract claimed to have been made with defendants by their testator, the making- of which is denied, it is the right of the defendants to put before the jury every fact and circumstance having any tendency to show, or raise the presumption or probability, that such contract never existed.</p> <p>2. The question of the ownership of estimates of timber, made by a land-looker for a land-owner, and paid for by the latter, is one' of law.</p> <p>3. Until testimony necessarily shows that a fact must-have been equally within the knowledge of a deceased person, it ought not to be excluded under the statute making such evidence incompetent in certain cases.</p> <p>4. When the omission to make demand for a claim against a debtor may be taken as a circumstance against its existence, depends upon the circumstances of each particular case. Among business men in cities, transacting- large amounts of business, claims are liquidated every few days, and settlements are made-on short time, and the presumption arises much sooner than in the country, where longer credits are usually extended; but in all cases the testimony is competent, and the question is one for the jury.</p> <p>5. It is error for the court in his charge to give a construction to important testimony, or undue prominence to testimony of a very doubtful character, prejudical to the rights of either party.</p>

(Tuttle, J.) Bill to restrain the sale of land for taxes. Defendants all appeal except the Auditor General. The facts are stated in the opinion.

<p>Vicious dog — Injury—Pleading—Declaration.</p> <p>In an action under How. Stat. § 2119, to recover damages for injuries sustained from an assault by a vicious dog, the plaintiff need not aver the knowledge of the owner or keeper that the dog was accustomed to do such damage or mischief.</p>

<p>Mortgages — Defeasible purchase — Redemption—Sale— Contract for repurchase.</p> <p>1. Defeasible purchases are narrowly watched, and courts of equity always favor the right of redemption.</p> <p>2. From the mere fact of an agreement to reconvey, either with or without an advance in price, an absolute conveyance will not be turned into a mortgage.</p> <p>3. Contracts for repurchase, made contemporaneously with conveyances of real estate, absolute in form, are sometimes strong evidence tending to show that the conveyances are intended to be mortgages; but where it appears that the parties really intended an absolute sale, and a contract allowing the vendor to repurchase, such intention must control, and to ascertain the intention of the parties the court will look beyond the writings to the circumstances surrounding the transaction.</p>

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

<p>Fire insurance — Construction of clause voiding policy in case mill should “ cease to be operated.”</p> <p>1. The shutting down of a shingle-mill for 43 days for want of logs which were in transit, and detained by reason of low water, but which were daily expected to arrive, and which began to be delivered the day the mill was burned, will not avoid a policy of insurance providing for such a result in case “the mill shall cease to be operated” without notice to or the consent of the insurance company.</p> <p>2. In such a case it is proper for the plaintiff to show that a planing-mill owned by the insured, and distant from the shingle-mill about 125 feet, and connected with it by cable power which operated both mills, was kept in operation, and that other mills were shut down the same season on account of low water, thus showing that such stoppages were incident to and to be expected in that locality.</p>

<p>Taxes — Assessment of copartnership personalty — Error in name of firm — Logs in transit — Replevin—Charge to jury.</p> <p>1„ The provision of section 5, Act No. 153, Laws of 1S85, that the firm name shall be used in assessing properly owned or occupied -by a copartnership whenever the name of the owner or occupant is required to be entered upon the assessment roll, is directory, and must be construed in connection with section 89 of the same act, which declares that no tax shall be held invalid on account of having been assessed in the name of any other-person than the owner.</p> <p>2. The decision in this case, and in Lumber Co. v. Collins, 66 Mich. 64, and in Dairy Co. v. McKinlay, 70 Id. 574, in so far as the question of the assessment of personal property in a firm name is involved, is based upon the facts appearing in the record, that the assessment was made .and the collection sought to be enforced against the rightful owners, and that the-roll contained sufficient notice to them that their property was assessed, the underlying principle being that a person whose property is liable to assessment for taxes shall not be permitted to evade payment of his just proportion of the public burden by any errors, omissions, or irregularity that do not prejudice his rights.</p> <p>8. A request which asks the court to charge the' jury what the evidence shows is rightly refused.</p> <p>4. The charge of the court on the question of when logs are in transit is held as favorable to the plaintiff, at least, as he had a. right to expect.</p> <p>5. Replevin will not lie for saw-logs seized to satisfy taxes assessed thereon in a township where the logs were hable to assessment, which assessment appears by the roll to be in all respects regular and valid. Hood v. Judkins, 61 Mich. 576 (head-note 5).</p>

<p>Commissions on sale of real estate — Evidence—Charge to jury— Argument of counsel.</p> <p>1. Where there is testimony tending to support the theory upon which a party has tried his case, it is error to refuse to instruct the jury upon such theory, unless the instruction asked for is covered by the general charge.</p> <p>2. Where counsel bases an argument to the jury upon a state of facts unsupported by the testimony, it is error to refuse to instruct the jury that no such facts have been proved, when requested by the opposing- counsel at the close of such argu. ment.</p> <p>3. Where a defendant, sued for commissions claimed by plaintiff as due him on a sale of land, defends on the theory that he has paid the agreed commissions to another real-estate agent, by direction of the plaintiff, and that the two were to make a division of the same, and the second agent testifies that he received the money under such an arrangement, which he has not carried out, he may be asked on cross-examination why he has not paid plaintiff his share of the money.</p> <p>[The positions of counsel are fully stated in the opinion. — Reporter. ]</p>