Volume 73 — Michigan Reports

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

<p>Error to Shiawassee. (Newton, J.)</p> <p>Assumpsit for drain taxes. Plaintiff brings error. The facts are stated in the opinion.</p>

Exceptions before judgment from the recorder’s court of 'Detroit. (Swift, J.) Bespondent was convicted of having burglars’ tools in his possession, with intent, etc. The facts are stated in the opinion.

<p>Error to Kent. (Montgomery, J.)</p> <p>Respondent was convicted of manslaughter, and sentenced to State prison for four years.</p> <p>The facts are stated in the opinion.</p>

(Swift, J.) Respondents were convicted of attempting to steal from an office in tbe day-time. The facts are stated in the opinion.

Mandamus. Relator applied for a mandamus to compel respondent to pay over State taxes. The facts are stated in the opinion. 1. The illegality of the charges for losses to the State on the sale of State tax lands and the interest thereon, under the 1869 law, ■will not be questioned; citing Auditor General v. Supervisors, 62 Mich. 579. 2.

<p>Husband and wife — Joint holding of real estate — Contract of married woman.</p> <p>A married woman cannot be held liable upon & joint contract with her husband for improvements upon real property held by them jointly, by entireties.</p> <p>So held, where a husband and wife contracted for the erection of a building upon' land which had been deeded to them jointly.</p>

<p>■Schools and school-districts—Erection of new district—Petition— Notice—Jurisdiction of inspectors.</p> <p>1. The right of a board of school inspectors to set off a new school-district does not depend upon a petition for such action on then- part.</p> <p>2. The requirement of How. Stat. § 5040, that ten full days’ notice he given of a meeting of the board of school inspectors to alter the boundaries of a school-district, is jurisdictional, and where not given the filing of the consent of a majority of the resident tax-payers of the districts affected by the alteration, to the formation of the new district, will not validate such action. School-dist. v. Boards of School Inspectors, 63 Mich. 611.</p> <p>[The points of counsel and authorities are stated in the opinion. — Keporter. ]</p>

•Error to Saginaw. (Cage, J.) Assumpsit. Plaintiff brings error. The facts are stated in the opinion. 1. The court has power to amend any process, pleadings, or proceedings in any action, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment rendered therein; citing How.

(Hosmer, J.) Bill to restrain the board of auditors of Wayne county from purchasing a lot for county purposes. Defendants appeal. The facts .are stated in the opinion.

(Hooker, J., presiding.)- Bill to declare purchase' money, paid for land sold by an executor under a void license, a lien on the land. Complainants appeal. The facts are stated in the opinion. 1.

<p>Error to Kalamazoo. (Buck, J.)</p> <p>Trover. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

(Buck, J.) Asstmpsit. Plaintiff brings error. The facts are stated in the opinion. 1.The letters did not make a bontract, there was no consideration for the settlement, and the agent claimed by defendants to have made it had no authority to, nor did he in fact, make the settlement claimed. 3.

Mandamus. Relator applied for a mandamus to compel respondents to approve a liquor-dealer’s bond. Tbe facts are stated in the opinion. .

(Arnold, J.) * Bill in aid of execution. Complainants appeal. The facts are stated in the ■opinion. 1.

(Gage, J.) Ejectment. Plaintiff brings error. The facts are stated in the opinion. 1.

(Hart, J.) Bill to decree taxes illegal and void, and to restrain their collection. Complainants appeal from decree dismissing bill on demurrer. The facts are stated in the opinion.

(Montgomery, J.) Bill to annul marriage. Defendant appeals. The- facts are stated in the -opinion. 1. Direct evidence of marriage is the testimony of a witness who was present and saw the marriage; citing 1 Bish. Mar. & Div. § 186. .2. The fact of marriage may be proved by the clergyman, or other-official person who solemnized it; but there is no legal necessity for calling such officiating persons, and any' one who was present may be a witness to such fact; citing 1 Bish.

(Brevoort, J.) Assumpsit. Plaintiff brings error. The facts are stated in the opinion. 1.Plaintiff was entitled to enforce the note in her own name, it appearing that it was turned over to her by her brother, who was alone interested in the estate with her; citing Foote v. Foote, 61 Mich. 181, 190, and cases there cited; Needham v. Gillett, 39 Id. 574; Kennedy v. Shaw, 43 Id. 359; Brown v. Forsche, Id. 500; Mitchell v. Mitchell, 68 Id. 108. 1.

(Lane, J., presiding.) Assumpsit. Plaintiffs bring error. The facts are stated in the opinion. 1. The disability to become partners, if any exists, is that of the wife, and not the, husband; therefore if the statute is broad enough, under the construction of this Court in numerous cases, to confer this power upon her, no question can be made as to their power to enter into the copartnership relation. 2.

(Grant, J.) Attachment proceedings under log-lien law of 1887. Defendant brings error. The facts are stated in the opinion.

Mandamus. Relator applied for a mandamus directing respondent to vacate an- order denying motion to quash garnishee proceedings against relator, and to grant the motion. The facts are stated in the opinion.

(Brevoort, J.) Negligence case. Plaintiff brings error. The facts are stated in the opinion. 1. Facts as to the establishment of contributory negligence should go to the jury; citing Smith v. Car Works, 60 Mich. 508; Manning v. Railroad Co., 59 Id. 259; Staa.1 v. Railroad Co., 57 Id. 239; Guggenheim v. Railway Co., Id. 488, 494; Klanowski v. Railway Co., Id. 525; Geveke v. Railroad Co., Id. 589; HasSemyer v. Railroad Co., 48 Id. 207; Teipel v. Hilsendegen, 44 Id. 461. 2.

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

(Stickney, J.) Bill to restrain diversion of water-course. Defendant-appeals. The facts are stated in the opinion, 1. The proofs clearly establish that the stream in question was a. water-course, even across defendant’s lands, and that, whether that is true or not, it certainly had become a water-course when it reached the highway, and before it passed onto complainants’' lands. 2.

<p>Error to Wayne. (Reilly, J.)</p> <p>Proceedings under mechanic’s lien law. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Relator applies for mandamus to compel respondent to levy a tax for an amount due the State from said county. The facts are stated in the opinion.

(Beach, J.) Bill to enforce specific performance .of parol contract for sale of land. Complainant appeals from decree dismissing bill. The facts are stated in the opinion. .1.

<p>Practice in circuit courts — Reference—Bill of exceptions — Findings of referee — Partnership.</p> <p>1. On a reference under the statute, the case on its return is to be treated in all respects as though the trial was had before and the facts found by the court, and the bill of exceptions settled and signed by the referee performs the same office as one settled and signed by the circuit judge, on a trial before him. Altman v. Wheeler, 18 Mich. 243.</p> <p>2. Where on the hearing of exceptions to a referee’s report it appeared that no opportunity had been given to the parties to settle bill of exceptions, and that, while the facts had been found, the conclusions of law had not been stated separately, the court properly ordered a re-reference to correct these omissions.</p> <p>3. It is always competent for the court, in furtherance of justice, to refer the report back to the referee, to make such corrections, and supply such inadvertent omissions, as may be made from the report itself, even where no exceptions are taken. Bryant v. Hendee, 40 Mich. 543.</p> <p>4. Upon the coming in of the referee’s report after a bill of exceptions has been settled, .and the findings of fact and law by the referee, either party may file exceptions to the report, and the case may be brought on for hearing in the circuit court, which is to determine the questions raised under the objections and upon the bill of exceptions.</p> <p>5. A referee’s report will not be set aside, and a new trial ordered, •on the ground that the finding of facts is contrary to the weight of evidence, the report as to facts found being conclusive.</p> <p>6. Proceedings before the referee are to be considered substantially as before the court; and on a re-reference for the purpose of settling a bill of exceptions, and announcing his conclusions of fact and law already found, he would have the same right to refuse to receive further testimony as the circuit judge if the proceedings were being conducted before him. The referee has some discretion in such proceedings, and such discretionary matters are only reviewable when such acts amount to abuse of discretion.</p> <p>7. The fact that the owners of ferry-boats run them as joint property, pay the expenses out of the earnings, and divide the profits according to such ownership, but have no partnership name, and do not understand, as between themselves, that they are partners, will not make them such, whatever their relations may be as to third parties.</p> <p>[The positions of counsel are fully stated in the opinion. — Reporter.]</p>

(Gartner, J.) Assumpsit. Defendants bring error. The facts are stated in the opinion. 1. There was no consideration for the promise. It was Newlove’s duty to the firm to attend to the outside and traveling business. 2. A person for whose benefit a promise is made cannot maintain an action for its enforcement if it is void as between the promisor and promisee because of want of or failure of consideration.

(Aldrich, J.) Proceedings to establish a lien for labor upon certain shingles. Owners of shingles bring error. The facts are stated in the opinion.

<p>Railroad companies — Condemnation proceedings — Petition—Verdict —Defective plat — Description of lands.</p> <p>1. The question whether there is any sufficient cause for resorting to condemnation proceedings is preliminary in its character, and should be settled in some separate way in advance. It involves both fact and law. >'</p> <p>H. The proper description should be petitioned for, and left to the jury free from any questions except as to necessity of condemnation and value.</p> <p>3. The failure of a plat to conform to the statutory requirements as a good one for all purposes does not prevent it from being the proper legal definition of lands by act of the parties for many, if not for most, purposes.</p> <p>4. While a blank form for a verdict in condemnation proceedings which can be filled just as easily in one way as the other is not objectionable, it is error to allow the petitioner to practically draw up the desired verdict and deliver it to the jury under the sanction of the court.</p>

(Hosmer, J.) Guardian's final account. Guardian appealed to circuit court from allowance of probate court, where the amount found due the ward's estate was increased. The facts are stated in the opinion.

Information in the nature of a quo warranto to test the title of respondent to the office of superintendent of the poor for Wayne county. Eespondent demurs to information. The facts are stated in the opinion.

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

Mandamus. Eelator applied for mandamus to compel respondent, as financial secretary of the Laboring Men's Building & Sayings Association, to transfer to relator certain shares of stock in said association bid off by him at an execution sale. The facts are stated in the opinion.

Mandamus. Delators applied for mandamus to compel investigation by respondents of certain returns of the election of aider-men in the city of Detroit. The facts are stated in the opinion.

Mandamus. Eelators apply for a mandamus requiring respondents to vacate an order discharging a suit and setting aside the judgment taken therein. The facts are stated in the op inion.

Mandamus. Relator applies for a mandamus requiring respondent to vacate a verdict and allow a new trial. The facts are stated in the opinion.

<p>Public lands — Surveys—Lost section corners — Relocation.</p> <p>1. In making the government survey the town and range lines are first run. The town lines are run due east and west, and section corner posts are placed, with the appropriate witnesses, at intervals on the line 80 chains apart. Quarter section posts are-also set along the line 40 chains from the section corners.</p> <p>2. The town and range lines of a township are entirely independent of the interior subdivisions, and are made by different surveyors.</p> <p>3. Township lines are required to be straight lines a distance of 480-chains; and when any two known monuments are found to-exist on such line a right line between these monuments represents the location of the town line; and although the section comers on an east and west town line may, through error in the chain-men, be located and placed by the government' survey either ■ east or west of where they should properly have been placed, and must so remain, there is no such liability to-error as to placing them either north or south of the propor place on such line.</p> <p>4. When a section comer on an east and west township line is. lost, the proper method for its relocation would be to run a. straight line from the nearest known monument on the town line on either side of the lost corner or corners, and replace the post, according to the field-notes of the government survey, upon the straight line connecting the two known monuments. Such town line cannot be swerved from a right line by measuring from a known quarter section corner north of the line to-one south of such line, and dividing the distance, as to do so-would make the survey of the township line subordinate to the-survey of the subdivision of the township, when the ’contrary is not only the rule, but the fact.</p> <p>5. If the stakes or monuments placed by the government in making the survey to indicate the section corners and quarter posts can be found, or the places where they were originally placed can be identified, they are to control in all cases. When they cannot be found, or if lost or obliterated, they must be restored upon the best evidence obtainable which tends to-prove where they originally were, and for this purpose surveys are made and the lines retraced as near as possible.</p> <p>6. Where the lost section corners sought to be re-established are-those which were placed when the township was subdivided, they should be placed at the intersection of a north and south line and east and west line surveyed between the nearest knowm government monuments in the respective lines, and lost quarter posts, at equal distances from the section corners.’ How. Stat. § 622.</p> <p>Y. In case of lost 'section corners on town or range lines, the lines should be resurveyed between the nearest known government monuments on either side of the lost corner or corners, and. the section corners relocated on a straight line between such monuments at the distance indicated in the field-notes, and the lost quarter posts at equal distances between the section corners.</p> <p>3S. In all cases the chain used in making the survey must be made to correspond to that used by the government by testing it with distances on the ground between two or more known monuments.</p> <p>The record of the survey authorized by Act No. 149, Laws of 1888, to restore lost corners, etc., is not made even prima facie evidence of the correctness of the work done by the surveyor.</p>

<p>Appeal from Berrien. (O’Hara, J.)</p> <p>Bill for divorce. Complainant appeals.</p> <p>The facts are stated in the opinion»</p>

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

(Peck, J., presiding.) Case. Defendant brings error. The facts .are stated in the opinion. 1. The jury had no right to consider the fact that the plaintiff had children, for the purpose of increasing her damages; citing Bosecrants v. Shoemaker, 60 Mich. 4. 3.

<p>Liquor traffic — Bond of dealer — Defective justification — Liability of surety — Civil damage act — Constitutional law.</p> <p>1. The neglect of the sureties to annex the statutory affidavits to a liquor-dealer’s bond will not relieve them from liability.</p> <p>2. The acceptance by the common council of a liquor-dealer’s bond, unaccompanied by the statutory affidavits of the sureties, may render them liable for neglect of duty, but such neglect will not invalidate the bond.</p> <p>3. The case of Flower v. Withovslcy, 69 Mich. 371, in so far as it affirms the constitutionality of Act No. 259, Laws of 1881, as amended by Act. No. 191, Laws of 1883, is approved.</p> <p>4. In a suit against the sureties upon a liquor-dealer’s bond to recover the amount of a judgment for damages recovered against the principal, the sureties cannot retry the original suit upon the merits. They can only show that the. judgment was not rendered by a court of competent jurisdiction, or that it is void for fraud or collusioh.</p> <p>[Tbe points of counsel are stated in tbe opinion.— Reporter.]</p>

<p>Municipal corporations —By-laws and ordinances — Authority of city — Reasonableness of enactments — Distribution of cards in streets of city.</p> <p>1. An ordinance of the city of Detroit prohibiting the circulation, distribution, or giving away of circulars, hand-bills, or advertising cards of any description, in or upon any of the public streets and alleys of said city, is held not to come within the power granted by its charter, and also to be unreasonable and unwarranted.</p> <p>2. The following propositions are summarized from the opinion of Mr. Justice Long :</p> <p>a — Corporations derive all their power from legislative acts, and can pass no ordinance which conflicts with the terms of the charter.</p> <p>b — Where the Legislature, in terms, confers upon a municipal corporation the power to pass ordinances of a specified and defined character, if the power thus delegated is not in conflict with the Constitution, an ordinance passed pursuant thereto cannot be impeached as invalid because it would have been regarded as unreasonable if it had been passed under the incidental power of the corporation, or under a grant of power general in its nature.</p> <p>e — Where the power to legislate upon a given subject is conferred, but the mode of its exercise is not prescribed, the ordinance passed in pursuance thereof must be a reasonable exercise of the power, or it will be pronounced invalid. 1 Dill. Mun. Corp. § 262.</p> <p>d — The fact that an ordinance covers matters which the city has no power to control is no reason why it should not be enforced as to these which it may control. The unauthorized provisions do not invalidate the whole ordinance, if they can be separated from the rest of the ordinance without so mutilating it as to render it inoperative. Kettering v. Jaclcsonville, 50 111. 89.</p> <p>e — The reasonableness or unreasonableness of an ordinance is not determined by the enormity of some offense it seeks to-prevent and punish, but by its actual operation in all cases that may be brought thereunder.</p> <p>/ — To render ordinances reasonable, they must tend in some degree to the accomplishment of the object for which the corporation was created and its powers conferred.</p> <p>g — Under our Constitution and system of government the object and aim is to leave the subject entire master of his own conduct, except in the points wherein the public good requires some direction or restraint.</p> <p>[The positions of counsel, with citations of authorities, are stated in the opinion. — Beporter.]</p>

(Brevoort, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion. 1. On the facts of this case no action will lie; citing Allen v. Allen, 60 Mich. 635; Robinson v. McAfee, 59 Id. 375; Mason v. Dunbar, 43 Id. 407; Coe v. Wager, 42 Id. 49; Neeley v. Rich, 7 Bradw. 116; Harris v. Currier, 44 Vfc. 468; Prickett v. Prickett, 20 N. J. Eq. 478, and cases cited in Am. Digest, 1887, 957. 2.

<p>■Constitutional law — Corporations—Continuation of existence beyond period of thirty years — Quo warranto.</p> <p>1. The constitutionality of enactments passed by the Legislature has been called in question in many cases in this State by information in the nature of quo warranto filed by the Attorney General. People v. Maynard, 15 Mich. 463; Attorney General v. Amos, 60 Id. 373; People v. Plank-road Co., 9 Id. 385; Attorney General v. Holihan, 39 Id. 116.</p> <p>3. Act No. 16, Laws of 1883, as amended by Act No. 37, Laws of 1887, authorizes mining and manufacturing corporations organized after the passage of said acts, but not for the full constitutional period of 30 years, to renew their corporate existence for the remainder of said term, but said statute does not apply to corporations whose period of existence is fixed by their articles of association at 30 years, they being excluded from its terms, not by its language, but by the Oonstitution, which limits their creation to a period of time not longer than 30-years.</p> <p>8. The design of the framers of the Constitution was to place all purely private corporations on an equal footing, and to fix a limit of time, beyond which they should not continue to exist. This design would be frustrated if authority could be given them to perpetuate their existence by a resolution of their stockholders, or any other device.</p> <p>4. The following propositions are summarized from the opinion of Mr. Justice Ceahplin:</p> <p>a — The Constitution is the supreme law, and to its behests-the courts, the Legislature, and the people must bow.</p> <p>6 — An unconstitutional statute is one only in form, and lacks the force of law, and is of no more saving effect to justify action under it than if it harl never been enacted.</p> <p>c — No corporation in this State can exist unless it be created by law, and every corporation, when called upon by the people to show by what authority it exercises the franchises and privileges of a corporation, must show a valid enactment of the Legislature for its authority.</p> <p>d — The people have a deep and vested interest in maintaining all the constitutional limitations upon the exercise of legislative powers. Allen v. McKeen, 1 Sum. 314.</p> <p>e — Article 19, § 9, of the Constitution, forbidding the extension by the Legislature of the existence of mining companies in the Upper Peninsula, relates to corporations in that section of the State organized under special charters, and whose term of existence was limited to 30 years, and was not intended to-apply to corporations thereafter formed under general laws.</p> <p>/ — The power to extend corporate existence beyond the time limited by charter, either before or after the limitation has-expired, is possessed by the Legislature as a prerogative of sovereignty, and is not conferred by constitutional provisions. Such power may be exercised at the pleasure of the Legislarture, if there is no express denial, or denial by necessary implication by other limitations placed upon legislative power, contained in the Constitution.</p> <p>g — As grants of power to the Legislature may be found from implications arising from express grants, so limitations upon legislative power may be found from implications arising from express limitations in the Constitution.</p> <p>h — It may be laid down as a postulate that what the Legislature is prohibited from doing by special enactment it has no-authority to authorize to be done under a general law.</p> <p>i — Unless restricted by the Constitution, the Legislature has the undoubted right to grant such special acts of incorporation as it sees fit; and where the Constitution reserves the power of repeal, alteration, and amendment, it may make such amendments as it deems advisable, which do not affect vested rights.</p> <p>j — The general law under which corporations are formed, together with the articles of association adopted in pursuance thereof, sometimes called “ constating instruments,” constitute the charter of the corporation.</p>

<p>Error to Berrien. (O’Hara, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

(Reilly» J.) Assumpsit.' Plaintiffs bring error. The facts are stated in tbe opinion. 1. That the case falls within How. Stat. § 8723; citing McOmber v. Chapman, 43 Mich. 117; Pattridge v. Lott, 15 Id. 252; Coffin v. Cottle, 16 Pick. 385; Foote v. Pfeiffer, 70 Mich. 531. 2. An action is duly commenced, within the meaning of How.

(Gartner, J.) Assumpsit. . Defendant brings error. The facts are stated in the opinion. 1. The value of the services of counsel under circumstances of general similarity to those under which the services in suit were rendered may be shown; citing Rogers, Exp. Test. § 159; Thompson v. Boyle, 85 Penn. St. 477; Ottawa University v. Parkinson, 14 Kan. 160. 2.

(Reilly, J.) Appeal from order of distribution of personal estate. The facts are stated in the opinion. 1. The word “children” in wills and statutes has often been held to mean the same as issue, and to include grandchildren; citing 1 Bouv. Law Die. and cases cited. 2. “Children” held to be synonymous with “issue” very often; citing Barnes v. Huson, 60 Barb. 608; Proivitt v. Rodman, 37 N. Y. 42; Royle v. Hamilton, 4 Ves. Jr. 437; 2 Eedf.

<p>Appeal from Mdnroe. (Joslin, J.)</p> <p>Bill to foreclose a mortgage. Defendant Tennyson appeals.</p> <p>The facts are stated in the opinion.</p>

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

<p>Motion for retaxation of costs.</p> <p>Taxed bill of costs allotred to stand, except as to two items stricken out. Tbe facts are stated in tbe opinion.</p>

<p>Mortgage — Amount due — Tender.</p> <p>This case involves questions of fact purely, the issue being whether a mortgage sought to be foreclosed has been paid or a tender made of the balance due.</p>

(Grant, J.) Debt on replevin bond. Defendants bring error. The facts are stated in the opinion. 1.In support of the right of the defendants to show that the plaint- . iffs had no interest, or at most hut a part interest, in the property at the time the replevin suit was commenced, and that they had no right of possession, except on account of their having replevied it and given bond, and, further, that the defendants, or some of them, had, at the time of the commencement of…

<p>Occupancy of premises — Bents and profits — Improvements—Interest on interest.</p> <p>1. “Where a possession has been taken under color of right, and honestly, it is not by any means settled that in a court of equity the tenant shall account for actual or possible rents and profits on the footing of a wrong-doer; and while improvements are not generally required to be paid for otherwise, it is very common to allow them to be deducted from rents and profits, as far as these suffice. Qraydon v. Church, 7 Mich. 36.</p> <p>So held, where redemption was decreed as against a party in possession under an irregular statutory foreclosure, which he supposed to be regular, and under which title he had made improvements and paid taxes on the land, which taxes were allowed to him on the accounting, but he was charged with rents and profits.</p> <p>2. An allowance of interest on installments of interest maturing on notes, and not shown by the record to have been payable simultaneously with the principal, where the mortgage covenanted for such payment, and the statute allowed it, is sustained; and the fact that the notes were dated and executed in another state will not affect the right to recover such interest.</p>

(Smith, J.) Certiorari to review proceedings resulting in the dissolution of an attachment. The facts are stated in the opinion. 1.

(Montgomery, J.) Appeal from order of probate court dismissing petition of devisee. The facts are stated in the opinion.

(Peck, J.) Bill to set aside transfer of securities. Complainant appeals from decree dismissing bill. The facts are stated in the opinion.

<p>Certiorari to probate court of Lenawee county to review proceedings in appointing a guardian for an alleged incompetent person.</p> <p>The facts are stated in the opinion.</p>

<p>Negligence — Pleading—Damages—Master and servant — Independent contractor — Nuisance.</p> <p>1. If the plaintiff in a negligence case frames his declaration on the theory that the particular ailment complained of was produced by the act alleged, and was the direct result of it, and produces his proofs upon that theory, and the same are repugnant to the theory of an aggravation of an existing infirmity, the defendant is entitled to have the plaintiff confined in his recovery to the scope of his allegation and proof. Thurstin v. Luee, 61 Mich. 392.</p> <p>2. Whether the relation of principal and agent or of master and servant exists in any given case is, under proper instructions, a question of fact for the jury.</p> <p>8. As between the proprietor of a building and the builder, the contract is the best evidence whether the relation between them is that of principal and agent or master and servant.</p> <p>4. In this case it is held that the law imposed upon the defendant, when it exercised its lawful right of constructing a rolling-mill upon its premises adjoining a public highway, the duty towards the general public, having a right of passing along or lawfully being in that-high way, to so erect said building as to render it reasonably safe, and sufficiently strong, not only to resist the strain upon the supporting timbers of the roof, but strong enough to support the roof, at all seasons, in all ordinary weather, and also under such extraordinary occurrences as were likely to arise in that locality, based upon past experience; which duty it could not avoid by employing an independent contractor to furnish the material and perform the work.</p> <p>5. The exercise of reasonable care in the creation or maintenance of a nuisance can never be absolute defense to an action for an injury occasioned thereby.</p> <p>6. Where questions asked expert witnesses are not objectionable in themselves, if, after the testimony is all in, any of them are based upon facts not supported by the testimony, the attention of the court should be called to such question and the point not so supported, with a request to exclude the answer based upon such testimony, and the ruling upon such request will present a question for review in the Supreme Court.</p>

<p>Error to Van Burén. (Buck, J.)</p> <p>Case for slander. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Emmet. (Ramsdell, J.)</p> <p>Bills to foreclose mortgage. Complainant Mrs. Wendell appeals from decrees dismissing ber bill, and granting relief in second case.</p> <p>Tbe facts are stated in tbe opinion.</p>

<p>Contract — Partial performance — Severance—Evidence.</p> <p>Plaintiff sued to recover 8100, which, he claimed to have paid . defendant as a consideration for' his agreement to produce certain documentary testimony on the trial of an ejectment suit, which defendant failed to produce, and the main controversy was whether the agreement was entire or severable. An examination of the opinion is essential to a correct understanding of the points decided.</p>

(Palmer, J.) Replevin. Plaintiff brings error.- Tbe facts are stated in tbe opinion. 1.

<p>Libel and slander — Privilege—Publication of notice of desertion by wife.</p> <p>1. A notice by a husband that his wife has deserted him in his sickness contains libelous matter per se.</p> <p>2. A qualified privilege exists in cases' where some commi nication is necessary and proper in the protection of a person’s interest, but this privilege may be lost if the extent of its publication be excessive.</p> <p>3. It is only when a husband has permitted his wife to trade upon his credit that notice to tradesmen is necessary to protect his interests, and in such a case a notice to the public not to give her credit upon his account is justifiable, and to that extent privileged; but the insertion in the notice of words defamatory of the wife are not justifiable, and are evidence of malice.</p> <p>4. The following rule applies to communications or publications which are upon proper occasions qualifiedly privileged, namely: that if the matter charged as libelous is false, and the publication malicious, it is not privileged.</p> <p>5. We are not prepared to decide that a married woman in this State may not maintain an action for libel against her husband.</p> <p>6. Where a father-in-law caused to be published a false and defamatory notice concerning his daughter-in-law, and paid for such publication, it is no defense in an action by her for libel that the husband indicted and signed the libel, and directed the defendant to publish it.</p>

<p>Error to Macomb. (Canfield, J.)</p> <p>Assumpsit. Defendant Hiram M. Cade brings error.</p> <p>The facts are stated in the opinion.</p>

(Hosmer, J.) Assumpsit. Defendant brings error. The facts are stated in tbe opinion. 1. Cocher having no express authority in the premises, nor entitled, to exercise it by virtue of his position, it seems to me very plain that his authority, as between the plaintiff and defendant, cannot extend beyond that theretofore exercised by him. citing Whart. Agency, § 127. 1.

<p>Writ of error — Service of process — Withdrawal of writ from cleric’s office before return-day.</p> <p>1. The province of a writ of error is to bring up for review final judgments and determinations, and not decisions or discretion-; ary orders made pending litigation.</p> <p>2. A writ obtained from the clerk’s office after its return, and before the return-day, is not absolutely void, and if the court could, by a previous order, permit it to be taken from the files for service, which would be a matter in his discretion, he could, in virtue of the exercise of the same discretion, approve the act by ordering the service to stand, and the return to be filed as of the date of service.</p>

(Palmer, J.) Replevin. Plaintiff brings error. The facts are stated in the opinion. 1. The listing and valuation which appear upon the document designated as the “assessment roll” are in the nature of a judgment; citing Aldrich v. Aldrich, 8 Mete. 102; and the tax roll with the warrant annexed is analogous to an execution, and constitutes the only authority of the officer to proceed and collect the taxes; citing Blackwell, Tax Titles, 167; Cooley, Tax’n, 424. 2.

<p>Deed — Identity of parties — Submission to jury.</p> <p>The question involved in this case was one of fact, as to who was the grantee named and intended in the patent under which both parties claim title, and the court submitted the facts to the jury to find which Indian woman made the selection, and for whom the patent issued was intended, who found for the defendants, as it is held they were fully warranted in doing under the testimony.</p>

(Reilly, J.) Trover. Plaintiff brings error. The facts are stated in the opinion. 1. A corporation that at its inception purchased property in good faith for a valuable consideration without notice is not chargeable with knowledge of an incumbrance known only to the seller, whose position as seller would be unchanged even if he became an incorporator. 2.

<p>Deed — Description—Reference to defective plat — Recording laws— Good-faith purchaser — Notice.</p> <p>1. A sale by the proprietor, of land according to a plat which is defective under the statute authorizing the recording of town plats, is good and effectual to convey land embraced in such plat.</p> <p>Ü. Where a land-owner platted a designated parcel of land into lots and blocks, bounded by streets and avenues, the lots being numbered progressively, beginning with the number 1 in each block, but by an oversight the blocks were not designated, either by number or otherwise, and the plat was recorded in the proper office, and on the same day he executed a warranty deed to a purchaser of a parcel of land described as being in the designated government description, and as block No. 6 on said recorded plat, said deed was effectual to convey the block known and called block six, and parol testimony is admissable to identify said block six upon the plat and upon the ground, and a subsequent purchaser, who procured an abstract of title disclosing such conveyance, is bound to inquire as to its extent, and where the grantee claims the particular parcel called for in her deed was located.</p> <p>8. The following propositions are summarized from the opinion of Mr. Justice Champlin :</p> <p>a — “Constructive notice is a legal inference from established facts, and, when the facts are not controverted, the question is one for the court.” Glaflin v. Lenheim, 66 N. Y. 306.</p> <p>b — It is the duty of a purchaser of real estate to investigate the title of his vendor, and to take notice of any adverse rights or equities of third persons which he has the means of discerning, and as to which he is put on inquiry. If he makes all the inquiry which due diligence requires, and still fails to discover the outstanding right, he is excused, but, if he fails to use due diligence, he is chargeable, as matter of law, with notice of facts which the inquiry would have disclosed.</p> <p>c — There are cases where a subsequent purchaser has a right to rely upon the face of the record, and is not bound 'to make inquiry outside of what the records disclose. Such are errors in recording when the record contains a wrong description of the land conveyed, or a wrong name of the grantor, or a wrong amount as secured in a mortgage. But the rule does not extend to imperfect or indefinite descriptions in the premises conveyed. The question in such cases is whether the record contains sufficient to apprise a party that some right or title is claimed or attempted to be conveyed in the premises, and, if it does, the purchaser is bound to use reasonable diligence to ascertain what it is that is so claimed or attempted to be conveyed.</p> <p>[The points of counsel are stated in the opinion.— Reporter.]</p>

<p>Fraudulent conveyances — Deed from husband to wife.</p> <p>In this case a deed executed by a husband to his wife when the grantor was dangerously ill, and which on its face was but the quitclaim of a future interest, to which it has not yet attached in possession, and which was by the understanding of both parties kept from record until the grantor’s insolvency became not only public, but pressing, is held void, not only as a voluntary deed, and therefore legally fraudulent against creditors when made, but because of its treatment by both parties since, whereby creditors had no warning of its character, and were not intended to have any.</p>

<p>Witt — Agreement to make particular disposition — Written contract— Parol evidence — Part performance — Fraud.</p> <p>1. It is entirely competent for a person to make a valid agreement binding himself to make a particular disposition of his prop, erty by his last will and testament. Carmichael v. Carmichaels 72 Mich. 76 (head-note 1).</p> <p>2. Where pursuant to an oral agreement a will and contract were executed, which did not contain all of the arrangements of the parties, the whole agreement may be put in evidence, and the parties are not confined to the writings which form only a part of it.</p> <p>3. Where in consideration of the devise of certain real and personal property the devisee entered into a contract conditioned for the support of the devisor during his life-time, and entered upon its performance, and without default on his part the devisor attempted to cancel the will, and conveyed the land to a third party, in whose hands both papers had been deposited for safe-keeping, and received from him a mortgage conditioned . for his support during life, said deed and mortgage are in fraud of the just rights of the devisee, he having acquired rights in the land which cannot be taken away from him by any act of the devisor, and which will at the death of the devisor entitle the devisee to the land by a specific performance of the contract if he continues to perform his said agreement, or tenders a willingness so to do, and which is prevented only by the refusal of the devisor to accept such performance.</p>

<p>Bills and notes — Stipulation for payment of attorney fees — Condition — Negotiability of paper.</p> <p>1. An agreement for the payment of 5100 at a given date, with 6 per cent, interest, and also 10 per cent, attorney fees, is in effect an agreement to pay 16 per cent, interest, and the provision as to the payment of attorney fees is void. Bulloek v. Taylor, 89 Mich. 137; Altman v. Fowler, 70 Id. 57.</p> <p>2. A statement in a promissory note of the property for which it was given, standing alone, will not destroy its negotiability; but the addition of a condition that, if not paid when due, the property named shall belong to the payee, converts the instrument into a contract.</p> <p>[The points of counsel are stated in the opinion.— Beforter.]</p>

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

<p>Justices of the peace — Service of summons — Party attending courtr</p> <p>Service of summons from justice’s court, made upon a party to a suit while attending as a witness upon the trial in a county other than that in which he resides, is irregular, and a judgment rendered therein, in the absence of a voluntary appearance by the defendant, will be set aside on certiorari in the Supreme Court. Mitchell v. Circuit Judge, 53 Mich. 541.</p>

(Moore, J., presiding.) Bills for specific performance. Defendant Sylyenas A-Taft appeals. Tbe facts are stated in tbe opinion, and in tbe case of Taft v. Taft, 59 Mich.. 185. 1.

Quo warranto. Information in the nature of a quo warranto filed by the Attorney General to test the right of respondent to a seat on the board of supervisors of Muskegon county. The facts are stated in the opinion.

(Burlingame, J.) Bill to enjoin deposit of earth on complainant’s lots as incident to grading street. Defendants appeal. The facts are stated in the opinion.

<p>Motion on part of plaintiffs for retaxation of costs.</p> <p>The facts are stated in the opinion.</p>

(Newton, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion. 1.If a person, with full knowledge of all of the facts, pays over money to another, he cannot recover it back.

(Newton, J.) Bill to enjoin defendants from engaging in the hardware business. The facts are stated in the opinion. 1. The court will look no further than to see that the restraint of trade is reasonable and consistent with the law, and that there is a legal consideration to support the contract; citing Pierce v. Puller, 8 Mass. 233; Pike v. Thomas, 7 Am.

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

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

(Montgomery, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion. 1.

<p>Seduction? — Action by father — Damages.</p> <p>1. In this case a father recovered a judgment of §20 for the seduction of his minor daughter, which was the exact amount of certain money expenses, and secured a reversal of the judgment for reasons stated in the opinion.</p> <p>2. The following propositions are summarized from the opinion of Mr. Justice Campbell, which was concurred in by Sherwood, C. J.:</p> <p>a — “Seduction” and “debauching” are in civil causes very generally used as substantially similar terms, and we do not think it important which word is used in the pleadings. The statutory and other rules applicable to the action, nominally based on loss of service under the old fictions, are the rules that must govern in all of these cases.</p> <p>5 — Pull liberty of explanation should always be given to witnesses. No one can be expected to remember with literal exactness or entire fullness what he or she has testified years before.</p> <p>c — No question is leading which does not suggest an answer, and that over-technicality in obstructing testimony, by objecting to questions which have no reasonable tendency to do mischief, is not desirable, or calculated to expedite trials or develop truth.</p> <p>d — Our statutes have removed from actions for seduction all the rubbish that disfigured them, from attempting to keep up an idea that their object was to collect damages for loss of service, when in fact that was never any more than a legal fiction.</p> <p>e — The jury could not possibly find a verdict for expenses, actually incurred, and not for other damages, to some extent, at least.</p> <p>/ — No juror should find a verdict that is not based on his own convictions, derived from the whole case.</p> <p>fir — Our statutes (How. Stat. £§ 7779-7781) were passed to do away with the absurd doctrines arising out of the relations of service, and to redress the wrong as it really affects both the character and prospects of the woman, and the peace and comfort of the family. There may be possible cases where the elements of incapacity to labor, and of expenses incurred in treatment, may become considerable elements of damage; but they are usually very small factors in the result.</p> <p>h — In Watson v. Watson, 49 Mich. 540, 53 Id. 168; Dalman v. Koning, 54 Id. 320, and Weiher v. Meyersham, 50 Id. 602,— it was held that a woman when of age, whether of age or not when debauched, could sue in her own name for the injury, and these cases also exploded the doctrine that a woman’s consent to her own dishonor estopped her from recovery.</p> <p>i — Seduction may be accomplished by means of influence and persuasion intended to reach, and actually reaching, the result, which do not necessarily involve either a promise of marriage or pecuniary advantage, and such effectual persuasion which is the active cause of it may be as distinct a grievance as the more venal representations, which appeal to covetousness more than to excited feeling.</p> <p>/ — In the case of Dalman v. Koning, 54 Mich. 320, it was held that, as the unlawful intercourse was the ground of action, the use of force did not negative the legal idea of seduction, and that a recovery could be had for all the wrong and its consequences.</p> <p>h — Six years is the statutory period of limitation in these cases, and is therefore, instead of any shorter period, the period within which facts alleged or proven must be shown.</p> <p>I — Single acts in such affairs seldorn make up alone the real transaction, and all that preceded them in the( mutual relations of the parties is to be considered with them.</p> <p>3. Morse and Long, JJ., concurred in the result, and Champlin, J.,"did not sit.</p>

<p>Error to Lapeer. (Newton, J., presiding.)</p> <p>Ejectment. Plaintiffs bring error.</p> <p>The facts are stated in the • opinion.</p>

(Moore, J.) Case to recover drain taxe's claimed to have been illegally assessed, and paid under protest. Defendant brings error. The facts are stated in the opinion.

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

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

<p>Appeal from Branch. (Loveridge, J.)</p> <p>Bill for divorce. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Relator applied for mandamus to compel respondents to pay certain township and highway orders. The facts are stated in the opinion.

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

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

<p>Bastardy — Jurisdiction of police court of Detroit — Evidence.</p> <p>1. The police court of Detroit has authority to examine a person on the charge of bastardy, and bind him over for trial at the circuit court, under Act No. 161, Laws of 1885.</p> <p>2. In a bastardy case the defendant has a right to show that other men had sexual intercourse with the complainant about the same time the child is claimed to have been begotten, not only by eye-witnesses, but, if he can do so, by the men themselves, and it is gross error for the court to state to the jury his opinion of such witnesses, or that he would instruct the jury to disregard their testimony if offered, the credit to be given them being entirely with the jury.</p>

(Swift, J.) Information for not keeping closed on Sunday a bar where intoxicating liquors are sold. The facts are stated in the opinion.

<p>Criminal law — Justices of the peace — Sentence—State House of Correction.</p> <p>The statutes now in force (July 10, 1888) do not authorize a justice of the peace to sentence a party to the State House of Correction and Reformatory, at Ionia, on conviction of an offense which the justice has jurisdiction to try.</p>

(Arnold, J.) Case. Plaintiff brings error. The facts are stated in the opinion. 1. A view is allowed to enable a jury to understand the evidence, not to make witnesses of themselves; citing Glose v. 8amm, 27 Iowa, 503; Wright v. Carpenter, 49 Cal. 609; Brahlcen v. Railway Co., 29 Minn. 41; Neilson v. Railway Co., 58 Wis. 516. 2.

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

(Montgomery, J.) Case for slander. Defendant brings error. The facts are stated in the opinion. 1.

(Brevoort, J.) Bill by residuary legatee to compel guardian of minor heirs to indorse to her a certificate of deposit. Defendants appeal. The facts are stated in the opinion. 1. The money belongs to Mrs Speirs; citing Jones v. Jones, 25 Mich. 401; Proctor v. Robinson, So Id. 284; Hogan v. Hogan, 44 Id. 147; Norris v. Harris, 15 Oal. 236; Davis v. Mailey, 134 Mass. 588; Dutch Church v. Smocle, 1 N. J. Eq. 148; Kendall v. Kendall, 36 Id. 91; Wead v. Gray, 78 Mo. 59. £.