Volume 74 — Michigan Reports

(Smith, J.) Argued January 17, 1889. Decided February 8, 1889. Bill to foreclose two mortgages. Complainant appeals from a decree providing for a sale of only part of the mortgaged premises. The facts are stated in the opinion.

<p>Assignment for benefit of creditors — Effect upon pending suit— Right of plaintiff to proceed to judgment.</p> <p>1. The execution of a common-law assignment for the benefit of creditors is not a bar to an action by a creditor against the assignor. Parsons v. Clark, 59 Mich. 418 (head-note 1).</p> <p>3. An assignment for the benefit of creditors can in no way affect the right of the plaintiff to proceed to judgment, whether the suit is commenced before or after the assignment is made; nor will such right be affected by filing his claim against the defendant under the assignment proceedings.</p>

<p>Payment — Burden of proof — Evidence—Facts equally within knowledge of deceased.</p> <p>1. The burden of showing the alleged payment for goods which are admitted to have been received and accepted, and not paid for at time of delivery, is upon the defendant who asserts such after payment.</p> <p>3. Under the facts of this case, the husband of defendant is held not disqualified to testify to the payment by him to a member of plaintiff’s firm, since deceased, of the account sued upon.</p> <p>3. Where in a suit by a surviving partner the defendant claims to have paid the account sued upon to the deceased partner, and is allowed in support of such claim to make proof of the purchase of a draft by such partner, at about the time of such payment, in the city where defendant resided, payable to the firm, the book from which such partner reported his collections to the firm on his return from his trip, and which did not show the receipt of said payment from defendant, should be received in evidence on rebuttal.</p> <p>[Brief is confined to a discussion of the testimony. No authorities cited. — Reporter.]</p>

<p>Error to Alpena. (Kelley, J.)</p> <p>Case. Defendant brings error.</p> <p>Tbe facts are-stated in the opinion.</p>

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

<p>Certiorari to review transfer of cause.</p>

Exceptions before judgment from Mackinac. (Steere, J.) Eespondent was convicted of selling liquor without having paid tax, etc. The facts are •stated in the opinion.

<p>Criminal law — Indorsement of witnesses upon information — Amendment — Statute of limitations.</p> <p>1. In this case the names of witnesses Jcnoim to the prosecutor at the time of filing the information were allowed to he indorsed after the jury and a witness had been sworn, and the refusal of the court to grant the respondent a continuance on his application is held error, for which the conviction is reversed, and a new trial ordered.</p> <p>2. As to such witnesses as are known to the prosecutor at time of filing the information, the statute is imperative that he shall indorse their names at the time of such filing (How. Stat. § 9549; People v. Hall, 48 Mich. 487); and his failure to do so is not excused by a want of knowledge of their whereabouts, or that their attendance can be secured.</p> <p>8. An amendment of an information charging the larceny of “ one yoke of oxen” by adding “one a red ox of the value of §50, and one a spotted ox of the value of §50,” does not create a new issue upon an entirely different crime, but is a more particular description of the identical property charged to have been stolen.</p> <p>4. Where a complaint for larceny was made more than six years after its alleged commission, and the testimony showed that the respondent left his residence in Michigan immediately after the property was stolen, and was for some time in Canada, and afterwards in California, and also that he was engaged in work in different places in Michigan, in some of which he passed under an assumed name, the question whether there • was any period during the six years when he was not usually' and publicly a resident of this State is properly submitted to the jury.</p>

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

<p>Error to Muskegon.’ (Russell, J.)</p> <p>Replevin. Defendant brings error.</p> <p>The facts-are stated in the opinion.</p>

(Palmer, J.) Bill to declare a lien in favor of complainant against certain pine timber. Complainant appeals from decree dismissing bill as against parties demurring. The facts are stated in the opinion.

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

<p>Transfer of cause — Disqualification of circuit judge — Certiorari to circuit court commissioner.</p> <p>1. On certiorari to a circuit court commissioner to review proceedings for the transfer of a suit, in the absence of any real conflict in the testimony, the court will apply the law to the testimony without regard to the finding of the commissioner, which must be considered a finding of laio, and not of fact. Fellows v. Canney, 75 Mich. 445.</p> <p>3. In this case it is held that the testimony of the circuit judge fully meets the requirements of the statute, and shows his disqualification to sit, on account of his having been counseled regarding the subject-matter of the suit. See opinion for testimony.</p>

<p>Liquor traffic — Oivil damage act — Action by wife for injury to means of support — Damages—Evidence.</p> <p>1. In a suit by a wife to recover damages to her means of support by the sale of intoxicating liquors to her husband, testimony as to the number of her children is inadmissible. Larzelere v. Kirchgessfier, 73 Mich. 276.</p> <p>2. The loss of the companionship of a sober man, and the shame and disgrace of having a drunken husband, cannot be considered by the jury in a suit by a wife for damage to her means of support by the sale of intoxicating liquors to her husband, as an element of her actual damages, where such conditions existed long prior to and at the time of the alleged sales, and the testimony fails to show that the wife has suffered any mortification or mental anguish on account of any intoxication caused or produced by the sale of liquor to her husband by the defendant, or any other person.</p> <p>8. In such a case it is not error for the circuit judge to read to the jury the statute prohibiting the sale of liquor to an intoxicated person or to an habitual drunkard, it being a ground for exemplary damages.</p> <p>4. Knowledge on the part of a liquor dealer that a drunkard to whom he sells liquor has a wife is as much evidence of a wanton and willful injury to her as if she had actually forbidden such sale.</p>

<p>Error to Kalamazoo. (Buck, J.)</p> <p>Assumpsit. Plaintiff brings error.</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>Pleading — Gommon counts — Contract for sale of wood.</p> <p>1. In a suit for the price of 100 cords of wood, which plaintiff had agreed to cut and deliver to the defendant, a recovery cannot be had under the common counts unless plaintiff has either completed the contract in whole, or in some part which can be separated from the rest, or has delivered wood which defendant has appropriated.</p> <p>3. Where a plaintiff contracted for the delivery of 100 cords of wood upon the scows of the defendant, at a specified price per cord, and claimed that he was to receive full payment when the wood was piled upon the bank, defendant could not bo called upon to pay without measurement, and, in case of it-! refusal to accept or measure the wood, plaintiff’s claim would not be for wood sold and delivered, but for defendant’s refusal to perform a contract that could not be completely performed by plaintiff without further action after such measurement and payment, and the common counts are not suitable in such a case.</p>

<p>Error to Marquette. (Grant, J.)</p> <p>Case. Defendant brings error.</p> <p>Tbe facts are stated in tbe opinion.</p>

<p>Husband and wife — Contract for erection of building on land held jointly — Inability of wife.</p> <p>A wife cannot make a valid contract for the erection of a building upon land owned by herself and husband jointly (Speier v. Opfer, 73 Mich. 35), but is liable for labor done thereon, at her request, after the husband’s death.</p>

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

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

<p>Taxes — Assessment of individual property to copartnership by order of its agent.</p> <p>In tins case a copartnership is held liable for taxes levied upon lands belonging to one member of the firm, which were assessed to the firm by direction of its agent, under the rule laid down in Hill v. Graham, 72 Mich. 659.</p>

<p>Error to Newaygo. (Palmer, J.)</p> <p>Attachment under log-lien law. Defendant company brings error.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Belator applies for a mandamus for the allowance of his statutory fees for reporting mortgages to the assessing officers of Wayne county.

(G-artner, J.) Plaintiff, as executor, appealed to the circuit court from the allowance of his account by the probate court, and the residuary legatee brings error on the findings and allowance of the circuit court.

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

Mandamu.s. Relators apply for mandamus to compel respondent to issue orders to pay damages awarded by a former commissioner in proceedings to lay out a highway. The facts are stated in the opinion.

(Arnold, J.) Appeal by estate from allowance of claim by commissioners in probate court. Claimant brings error. Tbe facts are stated in tbe opinion.

<p>Error to Delta. (Grant, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in tbe opinion.</p>

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

<p>Error to Wayne. (Hosmer, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in tbe opinion.</p>

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

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

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

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

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

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

<p>Sawing contract — Breach.</p> <p>In this case plaintiff failed to prove his readiness or that he offered to commence sawing the timber which he had contracted with defendant to get out and saw, before bringing suit for a breach of such agreement; and it is held that the court should have granted defendant’s request to take the case from the jury. An. examination of the opinion is essential to a full understanding of the case.</p>

<p>Guardian and ward — Payments by executor before time limited An will — Inability on guardian’s bond'.</p> <p>A guardian is not liable upon his bond for payments made to him by an executor before the time limited in the will for the payment of a legacy therein bequeathed to the ward, he having no right to receive the money.</p> <p>So held, where a father bequeathed the residue of his estate to his daughter, to be paid to her on her arriving at the age of 18 years, or at the time of her marriage, if at an earlier date, provided anything remained after payment for her care and tuition, and prior to the appointment of her uncle as her guardian the executor paid him for expenses incurred in such care and education, and after his appointment settled with him, and paid him a balance his due on account of such expenditures, and on his failure to inventory such money as a part of the ward’s estate suit was brought upon his bond; and such payments are held to have been properly made by the executor, and that the guardian is not liable therefor.</p> <p>[The points of counsel are stated in the opinion.— Esportee.]</p>

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

(OTIara, J.) Appeal by administrator from order of probate court allowing claim against estate of deceased. The facts are stated in the opinion.

<p>Habeas corpus proceedings.</p> <p>Petitioner was convicted of larceny in justice’s court, .and sentenced to Beform School until 17 years of age. The facts are stated in tlie opinion.</p>

(Emerick, J.) Bill to confirm complainant’s title to certain pine timber. Defendant appeals. The facts are stated in the opinion.

Exceptions from superior court of Grand Rapids.. (Burlingame, J.) Information for selling liquor without paying tax.. The facts are stated in the opinion.

<p>Criminal law — Lotteries—“Playing policy.”</p> <p>I. A lottery is a scheme by which a result is reached by some action or means taken, and in which result man’s choice or will has no part, nor can human reason, foresight, sagacity, or design enable him to know or determine such result until the same has been accomplished</p> <p>3. Upon the facts stated in the opinion, the respondent is held guilty of setting up and promoting a lottery for money, contrary to How. Stat. § 9331.</p>

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

<p>Constitutional law — Elections—Statute for recount of votes — Peti tion of contestant — Laches.</p> <p>1. Act No. 293, Laws of 1887, providing for a recount of ballots on the petition of a candidate who intends to contest the election, while not in conflict with the Constitution, is too defective to be carried into execution unless by common consent, in this: a — No provision is made for the appointment of a time when the board of examiners will be appointed, or for notice to the-successful candidate to appear and take part in the formation of the board.</p> <p>b — There is no provision for a case where the examiners-appointed refuse to serve, nor any requiring them to take an oath before proceeding to the discharge of their duties.</p> <p>e — The act should require the inspectors intrusted with the key and -election seal, as well as the clerk, to appear before the-board of examiners.</p> <p>2. A petition to the judge of probate by a candidate desiring a recount under Act No. 293, Laws of 1887, must show who the-board of canvassers have decided is elected to the office, in order that notice of the contest may be given to him.</p> <p>3. A citizen of a county is not necessarily an elector, but an ! elector must necessarily be a citizen of a county in which he resides.</p> <p>4. It is a primary rule of elections that the ballots cast by the voters constitute the best, and are the primary, evidence of the intention and choice of the voters.</p> <p>5. When it is made to appear that, as between the identical ballots themselves, one candidate for a particular office has more ballots than another, such ballots are controlling,, and a mere-count determines the result; but, in order to have this effect it must be shown that the ballots have been duly preserved in the manner provided by the statute, and protected from any unauthorized intermeddling or tampering.</p>

Mandamus. Application for mandamus to compel respondent to vacate an order setting aside an execution levy. The facts are stated in the opinion.

<p>Error to Wayne. (Hosmer, J.)</p> <p>Claim under assignment law.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Application for mandamus to compel respondent to proceed with- a preliminary examination. The facts are stated in the opinion.

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

<p>Trial — Opening and closing .case to jury — Statements of counsel— Promissory notes — Consideration—Compounding felony— Evidence.</p> <p>1. Counsel have the right, both in opening the case to the jury, before the testimony to support their case is offered, and when closing the argument, after the testimony is in, to state to the jury that they claim the law to be thus and so, and that they shall request the court to so instruct them, and that they will adduce such and such testimony to support their claim under the law in the first instance, or at .the close to state that the evidence in the case, under the law as they shall claim 'it to be, establishes their right to a verdict.</p> <p>2. It is not competent for a witness to state his understanding of a given transaction.</p> <p>3. Where the maker of a note was held for trial on a charge of obtaining the loan for which the note was given by false pretenses, and upon the trial of a suit upon a note given in , exchange therefor the defense was that it was given in consideration of the surrender of the first note, and upon the promise of the payee not to appear in the criminal case, a paper filed in said criminal case by the prosecuting attorney, giving as a reason-for not filing an information the absence of sufficient evidence to insure a conviction, is inadmissible as evidence for the plaintiff, without any explanation by the officer signing the same.</p> <p>4. A promissory note given in consideration of an agreement on the part of the payee that he will obstruct the course of public justice, or suppress proceedings under a criminal complaint, cannot be collected or enforced by such payee.</p>

<p>Error to Lake. (Judkins, J.)</p> <p>Negligence case. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

(Dickerman, J.) Bill for specific performance of contract. Complainant appeals frdm decree dismissing bill. The facts are stated in the opinion.

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

Mandamus. Application for mandamus to compel respondent to vacate order for costs, and enter judgment for costs in favor of relator. The facts are stated in the opinion.

<p>Attachment — Default—Judgment—Mandamus.</p> <p>Where judgment is rendered in an attachment suit for want of an appearance and plea, it cannot exceed the sum sworn as due in the affidavit (with interest), and if taken for a greater amount mandamus will lie to compel the granting of a new trial if the plaintiff fails to remit the excess.</p>

<p>Sale — Contract—Lien of vendor — Bill to foreclose.</p> <p>The bill in this case was filed to foreclose the contract set forth in the opinion, as a mortgage and lien upon the property therein described; and it is held that, whether or not the contract can be so regarded, there was no default on the part of the defendant save that which was occasioned by the refusal of the complainant to permit the payment of the purchase price of the property in the manner prescribed by the contract, and the bill is dismissed. The case is one purely of fact.</p>

<p>Appeal from Delta. (Grant, J.)</p> <p>Bill to obtain an accounting. Defendants appeal.</p> <p>The facts are stated in the, opinion.</p>

Clair. (Canfield, J.) Bill to cancel taxes and to enjoin their collection. Complainant appeals from decree sustaining demurrer. The facts are stated in the opinion.

Clair. (Canfield, J.) Bill to cancel taxes and to enjoin their collection-Complainant appeals from decree sustaining demurrer. The facts are stated in the opinion, and in Walsh v. King, ante, 350.

(Dickerman, J.) Proceedings for enforcement of a log lien. Defendant log-owners bring error. The facts are stated in the opinion.

(Dickerman, J.) Proceedings for enforcement of log lien. Defendant log-owners bring error. The facts are stated in Appleman v. Myre, ante, 359.

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

<p>Negligence — Injury to porter at elevator shaft — Fellow-servants.</p> <p>This is a negligence case in which a verdict was directed for the defendant, which action is affirmed, no negligence being shown on defendant’s part.</p>

<p>Principal and agent — Ratification—Estoppel—Charge to jury.</p> <p>X. Where there is testimony tending to support the theory upon which a party has tried his case, it is error to refuse to instruct I the jury upon such theory, unless the instruction asked for is covered by the general charge.</p> <p>2. One cannot be permitted to sit by and see another constantly using his name in the purchase of goods, receive the invoices showing such purchase, give orders for the goods to be taken from the depot and express-office, see the other dealing them off as his own, and then, when called upon for payment by one who has been acting in good faith, repudiate the whole transaction, and deny the agency. Such silence is a ratification of the act of the other, though no authority, express or implied, for the purchase was originally given.</p>

<p>Appeal from Monroe. (Kinne, J.)</p> <p>Foreclosure, case. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Liquor traffic — Civil damage act — Injury to means of support— Damages.</p> <p>1. In a suit by a wife to recover damages sustained by reason of an injury to her husband at the hands of an intoxicated jierson, it is not for her to produce proof, or for the jury to speculate, upon the probabilities whether such intoxication was the natural cause of the act which caused the injury. The act itself fixes the liability for the damage upon the person selling or furnishing the liquor which produced the intoxication. Brockivay v. Patterson, 72 Mich. 122.</p> <p>2. Where a husband has no other means of providing for his family except his wages, an injury which cuts these off is an injury to the wife’s means of support within the meaning of the civil damage act.</p> <p>8. The actual damages resulting from injuries received by a husband at the hands of an intoxicated person, recoverable by the wife, may include the amount due for medical attendance, the value of the wife’s services in nursing the husband, and the loss to her means of support by reason of his diminished ability to labor.</p> <p>4. The fact that a wife has authorized the sale of liquor to her husband will not prevent her recovering damages resulting from injuries received by the husband at the hands of an intoxicated person to whom the dealer receiving such x>er-mission has furnished liquors. Roseerants v. Shoemaker, 60 Mich. 4.</p>

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

Case made from Kent.- (Montgomery, J.) Information in the nature of quo warranto to test the right of respondent to hold the office of prosecuting attorney. The facts are stated in the opinion.

<p>Sawing contract — Advances—“About” defined — Release of surety.</p> <p>1, It is well settled that, while the term “ about ” a certain amount is hot precise, it does nevertheless indicate an approximation ■ in quantity.</p> <p>So held, where a sawing contract recited that the first parties owned about 4,000,000 feet, board measure, of saw-logs, in certain designated streams, which they agreed to turn over to the second parties to be sawed, with power to sell shipping grades and re-imburse themselves for an advance of §30,000 out of the proceeds, and it is held that the meaning of the contract was that there should be enough logs of proper quality to yield somewhere in the neighborhood of 4,000,000 feet, board measure.</p> <p>3. This case involves the construction of a sawing contract, and the alleged release of one of the defendants from liability thereon, and an examination of the opinion is necessary to a full understanding of the questions decided.</p>

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

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

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

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

<p>Appeal from, probate court of Kent county.</p> <p>Condemnation proceedings. Respondents appeal from award of jury.</p> <p>The facts are stated in the opinion.</p>

(Hooker, J.) Respondent was convicted of embezzlement, and sentenced to State prison for five years. ‘The facts are stated in the opinion.

<p>Appeal from Schoolcraft. (Steere, J.)</p> <p>Foreclosure case. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Ingham. (Peck, J.)</p> <p>Bill to quiet title. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Manistee. (Judkins, J.)</p> <p>Bill for specific performance. Both parties' appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Evidence — Trial—Bill of sale — Security.</p> <p>1. It is always competent to show that any evidence in a cause is given for the first time, when there have been previous trials, or to explain why it is so given, and the reason it was not produced before.</p> <p>2. It does not require the same amount and strictness of proof to declare a mere bill of sale a chattel mortgage or security as it does to determine a deed to be a mortgage.</p> <p>3. An instruction to the jury that it is competent to show that a bill of sale, although conveying an absolute title on its face, may have been given by way of security, and that it is competent to show this by parol testimony, is sufficient in the absence of a request for the further instruction that the burden of proof is on the party making such claim to overcome the contrary presumption arising from the face of the paper.</p> <p>4. This case has been four times determined by a jury of the vicinage in favor of the plaintiffs, and should not be again reversed unless substantial error has been committed, resulting in a miscarriage of justice.</p> <p>5. In all cases where by reason of the death of a party a case must be disposed of upon the testimony of disinterested parties and circumstances, courts should not be too strict in the admission of testimony. Any and all circumstances that have a bearing, however slight, upon the questions at issue, should be permitted to go to the jury for their consideration in arriving at the truth of the disputed matters before them.</p> <p>[The points of counsel are stated in the opinion, and their briefs are mainly confined to a discussion of the testimony. — Reporter.]</p>

Mandamus. Relator applies for mandamus to compel respondent to apportion among the 'several townships for assessment the amount of indebtedness from the county to the State. The facts are stated in the opinion.

<p>Appeal from Eaton. (Hooker, J.)</p> <p>Bill to compel specific performance of an oral agreement to give security, bn exchange of lands. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Certiorari to board of supervisors of Eaton county to review its action in discontinuing a State road.</p> <p>The facts are stated in the opinion.</p>

<p>Evidence — Written contract — Charge to jury.</p> <p>1. Where a father made an oral agreement with his son-in-law for his support, and afterwards his son made a written contract with the son-in-law for such support, in the absence of his father, which contract the father claims not to have authorized, and that it was not in accordance with the terms of the oral agreement, the father may show what the agreement was as he made it, and that it has not been fulfilled by the son-in-law, In a suit with a third person involving the validity of the written contract and its binding effect upon the father.</p> <p>2. Evidence of conversations between two adverse claimants of personal property, having a legitimate bearing upon the title, is held admissible in this case, though had in the absence of the defendant, who claims as vendee of one of such claimants.</p> <p>$. An instruction that the jury are not to be influenced by sympathy for either party in disposing of the case, when asked for, ought to be given in most cases.</p>

<p>Contract — Parol evidence — Trial.</p> <p>1. After the door has been, opened wide by the admission of testimony without objection, there can be no propriety in shutting out the remainder of the testimony resting on the same grounds.</p> <p>2. A verbal contract, made on a verbal understanding that it should conform to the terms of a written paper, does not differ from any other verbal contract, and may be shown to have agreed with the writing or differed from it, according to the facts.</p>

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

Exceptions from Iron. (Grant, J.) Eespondent was convicted of engaging in the business of selling liquors without having paid the tax required by law. The facts are stated in the opinion.

<p>Accident insurance — Suicide—Insanity.</p> <p>1. Suicide by a person non compos does not come within the forfeiture clause of an accident insurance policy providing that no claim shall be made thereunder when death or injury may have been caused by suicide.</p> <p>2. The following propositions are summarized from the opinion of Mr. Justice Long:</p> <p>a — We are bound in all cases to assume that the jury have done no legal wrong when acting within their province. The credibility of witnesses, the strength of their testimony, its tendency, and the proper weight to be given to it, are matters peculiarly within their province. To take from them this right is but usurping a power not given. Conely v. McDonald, 49 Mich. 158.</p> <p>b — Every person is presumed sane, and the burden is upon the party asserting the contrary to establish insanity.</p> <p>c — Practically, all the cases agree in holding in the language of the supreme court of Massachusetts in Cooper v. Ins. Co., 102 Mass. 227, that there is no substantial difference of signification between the phrases “shall die by his own hand,” “shall commit suicide,” and “shall die by suicide.”</p> <p>d — The rule of construction, though not always recognized by the cases, is that the condition forfeiting a life insurance policy in case of suicide, being in the nature of a penalty or forfeiture, must be strictly construed. Ins. Co. v. Moore, 34 Mich. 45.</p> <p>e — Upon the question of voluntary suicide, intentionally committed by a sane man in the possession of his faculties, knowing how to adopt means to ends, and conscious of the immorality of the act, there is no difference of opinion; and all authorities agree that such self-destruction is within the exemption; and they likewise agree that an accidental death, — as by taking poison by mistake, or shooting one’s self with a pistol, supposing it not to be loaded, or falling from a building, or death happening in any way by the unintended act of the party dying, — is not within the exemption.</p> <p>/ — Insurers may always frame contracts of msurance to suit themselves, and may, if they choose, insert express stipulations to the effect that insanity shall not in any ease prevent avoidance by the suicide of the insured.</p> <p>[The points and authorities of counsel are so fully reviewed in the opinion that their restatement is omitted. — Reporter.]</p>

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

<p>Exceptions from Muskegon. (Dickerman, J.)</p> <p>Respondent was convicted on an information charging him with selling spirituous liquor as a beverage, not being .authorized by the laws of the State to so sell the same, but being engaged in the sale of drugs, etc.</p>

<p> Accounting. </p> <p>This case involves questions of fact purely, growing out of an accounting between the parties.</p>

<p>Error to Kent. (Montgomery, J.)</p> <p>Debt on notary public's bond.</p> <p>The facts are stated in the opinion.</p>

<p>Action — Assumpsit—Trover—Sale—Tenancy in common.</p> <p>1. In this case defendants purchased a stock of goods of plaintiff’s husband, who was in exclusive possession, but who was a tenant in common with her, she having purchased from him an interest in the goods designated as §1,000 worth of the entire stock, of which fact the defendant Campbell is found by the jury to have had notice, and on a demand being made by her of defendant Hanlon for her interest he refused to recognize that she had any interest in the goods, whereupon she brought an action of assumpsit, waiving the tort, to recover such interest, and a judgment in her favor is reversed,, on the grounds that the property had not been sold and converted into money, and that the case does not fall within that class where the tort may be waived and assumpsit maintained in case of a" conversion without a sale, for the reason that the relation of the parties, out of which the duty violated grew, had its inception in contract.</p> <p>2. The following general propositions are summarized from the opinion of Mr. Justice Champlin:</p> <p>a — The owner of chattels may sell an undivided interest in them, which may be measured at so many dollars’ worth as well as by any specified fraction of the whole, and the relation thus created will be a common ownership, which, by analogy to such relations in real property, is frequently designated as tenancy in common.</p> <p>b — In such a case no actual delivery is required, and the title passes at the time of the sale, if such is the intent of the parties, either or both of whom may have actual possession of the property, and when one has exclusive possession he is the bailee of his co-owner’s share.</p> <p>c — A sale of an interest in personal property must be supported by a sufficient consideration.</p> <p>d — One tenant in common of a stock'of goods cannot convey away the title to the entire stock, without the consent of his cotenant, which will be implied as to goods retailed out to customers in the ordinary course of business, without objection from and with the knowledge of the cotenant.</p> <p>e — The principle is well settled that a seller of personal property can convey no greater title than he has, and it makes no difference that the purchaser has no notice and is ignorant of the existence of other parties in interest, provided they are not estopped from asserting title by their conduct or laches.</p> <p>/ — Ordinarily, when an owner in common sells the goods, his co-owner may treat such sale as a conversion, and bring trover to recover the value of his share against such vendor; but he is not obliged to do so, but may retain his title in the goods in the hands of the purchaser, and if he converts them he is likewise liable to his (such) co-owner.</p> <p>g — A total destruction of the chattel, or a conversion of the whole to his own use, or something equivalent, such as a total denial of his co-owner’s interest in the property, coupled with total expulsion from possession, will render the owner in possession hable to his co-owner.</p> <p>h — Owing to the right which an owner in common has to the possession of the property so owned, if in its nature indivisible, his mere refusal to yield possession or admit to a joint possession, without denying the interest or ownership of his co-owner, will not constitute a conversion.</p> <p>i — One who buys property must, at his peril, ascertain the ownership; and, if he buys of one having no authority to sell, his taking possession in denial of the owner’s right is a conversion. Cooley, Torts, 528 (*451).</p> <p>[ j — The general rule is that before a party can waive a tort )for the conversion of personal property and bring assumpsit the property in the hands of the tort-feasor must have been sold and converted into money, upon the theory that the money has been received for the plaintiff’s use.</p> <p>7c — There is, however, another class of cases, where the property has been converted but not sold, where the tort may be' waived and assumpsit brought for the value of the goods converted. This class belongs to those relations where a contract may exist and at the same time a duty is superimposed or arises out of the circumstances surrounding or attending the transaction, the violation of which duty would constitute a tort. In such cases the tort may be waived and assumpsit maintained, for the reason that the relation of the parties, out of which the duty violated grew, had its inception in contract.</p> <p>I — When an owner in common of personalty has the exclu. sive possession he is the bailee of his co-owner’s share. In such case there is a contract of bailment between the parties, the law implying a delivery from the nature of the case and the peculiar rights which one owner in common has to such property when reduced to his possession. He takes it and holds it upon the trust and confidence that he will care for it and use it, if he uses it, in an ordinarily careful manner, and will not sell or convert his co-owner’s share to his own use. If he violates this trust and confidence by converting the property to his own use, his co-owner may bring trover for the conversion, or, waiving the tort,' may sue in assumpsit to recover its value. Fiquet v. Allison, 12 Mich. 828.</p> <p>[The points of counsel and authorities cited are stated in the opinion. — Reporter.]</p>

<p>Partnership — Bills and notes — Indorsement after maturity.</p> <p>1. The indorsee of a negotiable promissory note, given by a copartnership to one of its members for a loan made by him to the firm, and purchased in good faith, but after maturity, may maintain a suit thereon against the firm, it not appearing that said partner was in any way a debtor to the firm when the note was transferred, or that there were any equities existing against him which did not exist when the note was made.</p> <p>% The following general propositions are summarized from the opinion of Mr. Justice Campbell: a — While there is a difficulty in a suit at law in the name of a party against himself, yet, if this is the only difficulty, it goes only to the form of the remedy, and not to its existence.</p> <p>6 — There never was any legal or equitable reason why a partner should not have specific dealings with his firm, and unless these dealings, from their nature, are intended to go into the general accounting, and wait for their adjustment till dissolution, they give a right to have a remedy according to their exigency. The only reason why they must, under the old practice, be prosecuted at equity instead of at law, arose from the necessity at law of having plaintiffs capable of suing the defendants. In such a case the failure of a remedy at law justified a resort to equity. But equity could grant relief in such cases, and under our present rules there can be no difficulty at law.</p> <p>c — Where partners have seen fit to deal with each other without reference to the final accounting, the transaction is not subject to the necessity or delay of such an accounting.</p> <p>d — It is elementary doctrine that negotiability does not cease when paper matures. It is only subject to such equities as exist against the paper at the date when it is negotiated, and the equities which affect the indorsee are only such as attach to the note itself, and do not include collateral matters.</p> <p>e — That a partner himself may have a remedy of some kind, where the transaction is such as to be separated from the general partnership accounting, does not seem to be questioned, and the fact, which is referred to in all the books, that an accounting can only be had at the close of the business, indicates as clearly as anything can that either a partner can make no separate contract with his firm at all, or else there must be some means of enforcing it. A contract that cannot be enforced is nugatory.</p>

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

(Beach, J.) Bill to foreclose a mortgage, and to restrain a statutory foreclosure of a prior mortgage. Complainant appeals. The facts are stated in the opinion.

<p>Principal and surety — Judgment—Evidence.</p> <p>1. A judgment is shown to he authorized when parties appear and submit proper issues which are determined by the verdict, on which judgment is rendered, and a transcript, properly certified, showing these facts, is sufficient evidence in a collateral suit to show a valid judgment.</p> <p>2. As a judgment cannot be attacked collaterally for any mere irregularities, it is only on proceedings in error that all the continuances and other matters of practice in the cause need be mentioned in a transcript.</p> <p>8. An attachment by a sheriff of property not belonging to the debtor, made under color of a writ, and by authority of office claimed under it, is very clearly official action, for which his sureties are liable.</p> <p>á. A judgment against a sheriff for a wrongful levy is prima fade evidence in a suit against his sureties, who were not joined as-defendants in the first suit.</p>

(Brevoort, J.) Bill to restrain collection of a certain village tax claimed to have been illegally levied. Defendants appeal. The facts are stated in the opinion.

<p>Taxes — Assessment on personalty — Action at law.</p> <p>An action for delinquent personal taxes will not lie except against the person assessed.</p>

<p>Infants — Transfer of property — Replevin.</p> <p>An infant cannot be bound by a transfer of Ms property wMch cannot possibly be for his benefit, and an action lies at once, in his name by a next friend, to recover the property from the unauthorized holder.</p>

<p>Highivays — Discontinuance—Notice.</p> <p>1. The only persons who can seek a review of proceedings to discontinue a highway in whole or in part a.re the owners and occupants of land through or adjoining which it is proposed .to discontinue the road, which adjacency is confined to the part discontinued.</p> <p>2. We have always regarded a person as having property adjoining a discontinued highway when, although the body of his land does not touch it, there is no way of access reasonably open to him except by some passage opening into it, when the intermediate passage may be properly regarded as a continuation of his possession. Phillips v. Commissioner, 35 Mich. 15; Goss v. Commissioner, 63 Id. 608. The question must depend on the direct effect of the discontinuance in shutting up the land-owner from the usual necessities of a highway.</p>

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

<p>Appeal from Wayne. (Brevoort, J.)</p> <p>Proceedings under mechanics’ lien law of 1887. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Calboun. (Buck, J., presiding.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in tbe opinion.</p>

<p> Mandamus. </p> <p>Relators apply for a mandamus to compel an accounting. The facts are stated in the opinion.</p>

<p>Fraudulent conveyances — Good-faith mortgagee — Evidence.</p> <p>t. There has never been any such doctrine recognized in this State as would avoid a mortgage given for a past debt against a creditor whose own lien was subsequently acquired. The general subject is fully discussed in Root v. Potter, 59 Mich. 498, where mortgages made in good faith on the eve of an assignment were held not to be in law fraudulent preferences over which the assignment would prevail. The same question of priority of mortgages given for existing debts over subsequent assertions of claims, was disposed of in Root v. Harl, 62 Mich. 420; Krolik v. Root, 68 Id. 562; Caulfield v. Curry, Id. 594. See, also, Walker v. White, 60 Id. 427; Whitfield v. Stiles, 57 Id. 410.</p> <p>2. There is no objection to a competent witness stating the value of a stock of goods and store fixtures if to be sold out at once for cash, or their value to a person going into the business for which they were purchased, and it is for the court to tell the jury how to deal with the different theories.</p>

(Jennison, J.) Replevin. Plaintiff brings error on reversal of a judgment in his favor obtained in justice’s court, and removed on certiorari to the circuit court. The facts are stated in the opinion.

Information in nature of quo warranto, for usurping office of superintendent of the poor of Wayne county. Demurrer to respondent’s plea of title sustained, but without costs, or final judgment on the plea. The facts are stated in the opinion, and in 73 Mich. 234.