Volume 75 — Michigan Reports

<p>Contract for payment of sum on determination or settlement of suit to test validity of patent — Construction—Failure of title — Evidence of settlement.1</p> <p>The contract sued upon is construed to provide for the payment of the sum stipulated for therein, in case of the settlement of the pending^ suit for the infringement of the patent assigned to defendants’ intestate, regardless of whether the condition of the title to said patent would permit of a successful prosecution of said suit to decree or not, and, the jury having found the fact of such settlement upon sufficient evidence, the judgment below is affirmed.</p>

<p>Appeal from Tuscola. (Beach, J.)</p> <p>Bill for an accounting and other relief.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal law — Statements of respondent — Seasonable doubt — Circumstantial evidence — Charge to jury.</p> <p>1. Prejudicial statements or admissions made by a prisoner at a time and under circumstances well calculated to disturb his judgment and prudent action, and to unduly excite his fears, even if innocent, which conditions are the natural effect of the course pursued by the officers in charge, are not admissible as evidence against him.</p> <p>2. Held, that respondent’s first, second, and third requests should have been given, for reasons stated in the opinion.</p> <p>3. On the trial of a respondent for murder, it is competent for the people to show where he went after he had testified before the coroner’s jury, and before his arrest.</p> <p>4. In the absence of direct proof of the cause of death in a homicide case, if such fact can be accounted for upon any reasonable theory other than that of the respondent’s guilt, the jury should acquit.</p>

<p>Error to Houghton. (Williams, J.)</p> <p>Debt on recognizance in bastardy case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Trespass — Notice of title — Highways—Discontinuance— Certiorari— Appeal to township hoard — Jurisdiction—Damages to land-oioner.</p> <p>1. A notice of title in an action of trespass to lands in justice’s courtf which states that the land on which the injuries complained of' were committed was a legal highway, and that defendant in removing the fence of the plaintiff was acting as highway commissioner under the statute, but which does not describe'ali of the land claimed to have been trespassed upon, is sufficient to apprise the plaintiff of the nature of the defense, and under-which all pertinent testimony may be admitted.</p> <p>2. Void proceedings by a commissioner discontinuing a highway are not a bar to regular ones taken to widen it to the statutory width; which latter action is not premature by reason of the pendency of certiorari proceedings, in which the invalidity of such discontinuance proceedings ii established.</p> <p>8. An appeal to the township board from proceedings to lay out or alter a highway is a waiver of such defects and irregularities as do not show a want of jurisdiction or that the proceedings were void.1</p> <p>4. Damages to the value of the land for farming purposes, taken by a commissioner of highways in laying out or altering a highway, must be allowed to the owner before the public can acquire any rights or interest in the property condemned.</p>

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

(Aldrich, J.) Bill to foreclose a mortgage. Decree against defendant Keith reversed, aud modified as to-defendant Crisman, and one entered in the Supreme Court against both of said defendants in accordance with the opinion, in which the facts are stated.

Clair. (Canfield, J.) Bill to set aside a deed for fraud and undue influence. Complainants appeal from decree dismissing bill. The facts are stated in tbe opinion.

<p>Intoxicating liquors — Action by wife for injuries resulting from sale — Evidence—Witness—Impeachment.</p> <p>1, It has not yet been determined in this State that one who sells or gives liquor lawfully to an adult person is responsible for his death or for injuries infl cted on account of his intoxication; and in all cases before this Court, where a recovery has been asked for under the statute, the sale was in violation of the statute.</p> <p>2. A court or jury would not be justified in finding a defendant liable for damages for the consequences of a sale of liquor upon a given day solely upon the testimony o£ a witness who testifies that he thinks he and the deceased did not go into the defendant’s saloon on the day named, or get any liquor there, and that he was mistaken in his contrary statement made before the trial, or on a previous trial.</p> <p>8. A plaintiff cannot ask for a verdict upon the uncorroborated evidence of a witness whom he has himself impeached.</p>

(Joslin, J.) Bill to restore into validity a discharged mortgage, on the ground that the discharge was procured by fraud. Complainants appeal from decree dismissing bill.. The facts are stated in the opinion.

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

<p>Negligence — Careless driving — Master and servant — Evidence—Gen. eral reputation — Charge to jury — Contributory negligence.</p> <p>1. In a suit for damages for injuries claimed to have been received by reason of the careless and reckless driving of defendant’s servant, his condition as to being drunk or sober at or about the time of the accident is a proper subject of inquiry.</p> <p>2. In such a case the general character of the servant for sobriety is • not in issue, and cannot be shown any more than his general character and. reputation as a careful driver.</p> <p>8. An instruction to a jury in a negligence case that, if the plaintiff was guilty of that negligence without which the accident would not have occurred, she cannot recover, but if the defendant’s servant alone was negligent, and his negligence occasioned the injury, she could recover, is equivalent to an instruction that the plaintiff must show that the soleproximate cause of the accident was the negligence of such servant.</p>

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

<p>Chattel mortgage — Failure to file or renew — Change of possession— Execution — Replevin.</p> <p>1. A debtor mortgaged certain hotel furniture to secure an indorser, who assigned the mortgage to a bank as security for the payment of the notes, which mortgage was filed, but lapsed for want of renewal. The mortgagor leased the furniture, and assigned the lease to the bank, to which the rent was to be paid, and an inventory was taken and delivered to the bank, and it was agreed that the bank should take possession of the property; but none of it was moved, nor was the lessee disturbed in his possession, which he held until a judgment creditor of the owner levied on the furniture, when the bank brought replevin.</p> <p>Held, that there was no such actual and continued change of possession as would dispense with the renewal of the mortgage, or affect that of the lessee, and that the bank could not maintain replevin for tne property.</p> <p>8. Where articles are of that bulky nature that a symbolical delivery only can be made, and they are permitted to remain in a place where the possession may be equivocal, or what could not be said to be an actual possession, all doubts must be solved in favor of the purchaser or creditor, and against a mortgagee who has failed to file or renew his mortgage.1 Anderson v. Brenne man, 44 Mich. 202.</p> <p>3. An officer has the right to take possession of chattel-mortgaged property, and detain the same as against the mortgagee, for the time prescribed by law for bringing it to sale on his execution,2</p>

(O’Hara, J.) Respondent was convicted of assault and battery, and sentenced to 40 days’ imprisonment, and to pay a fine of $75 within said period, or be imprisoned until such fine was paid, not exceeding four months. The facts are stated in the opinion.

<p>Perjury — Bill for divorce — Jurisdiction.</p> <p>1. Perjury is assignable upon an oath, taken to a bill for divorce.</p> <p>2. The residence of one of the parties to a bill for divorce in the county where the suit is brought is essential to granting the relief sought, but the omission of such averment from the bill may be cured by amendment. »</p> <p>3. Where a bill for divorce contained sufficient allegations to give the court jurisdiction and to warrant the relief sought, if true, the fact’that, upon trial of the complainant for pwjuryin swearing to said bill, it appeared that neither party had resided in this State for the statutory year, will not bar a conviction.</p>

<p>Criminal law — Statements of respondent — Charge to jury — Keeping house of ill fame — Evidence—Construction of words.</p> <p>1. A statement made by a prisoner to a sheriff without question or suggestion on his part, and entirely of the prisoner’s own offer, if material, is admissible as evidence on the trial.</p> <p>2. Where, on the trial of a respondent for keeping a house of ill fame, a witness testifies to her calling a certain inmate “a pimp” or “ her pimp,” it is error for the court to determine which language was used, that being a question for the jury.</p> <p>3. Words sometimes acquire a peculiar significance in a particular locality, but the court cannot take judicial notice of such fact.</p> <p>4. Courts will take judicial notice of the ordinary meaning of English words, but not of uncommon or extraordinary meanings applied in isolated cases or in particular localities.</p> <p>5. The word “ pimp ” is not a technical one, nor has it acquired any peculiar or appropriate meaning in the law, and is therefore to be construed and understood according to the common and approved usage of the language. How. Stat. g 2.</p> <p>■6, It is error for the court to point out particular testimony, and instruct the jury that, if they believe it, it is “ pretty strong evidence ” in favor of the guilt of the accused, without cautioning them not to be influenced by such opinion, and instructing them that they are the exclusive judges of the weight of the testimony, and of what lacts it tends to establish.</p> <p>1, The weight to be given, to testimony, and all inferences to be drawn therefrom, is exclusively for the jury; and it is error for the court to weigh the testimony for them, or draw inferences from it.</p> <p>8. The statute punishing the keeper of ahouse of ill fame is designed to prohibit the keeping and maintaining of houses which persons are permitted to frequent for the purpose of unlawful sexual intercourse.</p> <p>9. A single act of lewdness or prostitution will not constitute the offense of “ keeping a house of ill fame;” but, if the place where such act occurs is shown to be such a house, resorted to for such purpose, proof of such single act is sufficient upon this branch of the case.</p>

<p>Foreclosure of mortgage — Discharge—Forgery.</p> <p>In this case, on a review of the testimony, the agreement produced-by the defendants, purporting to be signed by the mortgagee, and which is claimed to discharge the mortgage sought to be fore* closed, is found to be genuine, and the decree below dismissing complainant’s bill and decreeing affirmative relief to defendants. is affirmed. No questions of law are involved.</p>

(Grant, J.) Information in the nature of a quo warranto to test the title of school-district officers. Respondents bring error. The facts are stated in the opinion.

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

(Palmer, J.) Case for support of pauper claimed to have been illegally brought into this State, etc. Plaintiff brings error. The facts are stated in the opinion.

(Judkins, J., presiding.) Order of probate court, affirmed in circuit court, denying petition of residuary legatee for appointment of an administrator to complete the administration of an estate, reversed, and circuit court directed to enter the order prayed for, and certify same to probate court. Th^ facts are stated in the opinion.

<p>Appeal from Ottawa. (Dickerman, «L, presiding.)</p> <p>Bills to foreclose two mortgages. Defendant Carpenter appeals.</p> <p>The facts are stated in the opinion.</p>

(Burlingame, J.) Bill to cancel a tax-deed on payment of purchase money,, etc. Decree reversed, and one entered directing the cancellation of the deed upon payment of the amount paid upon the sale, with interest, and in default said deed to stand confirmed. The facts are stated in the opinion.

(Reilly, J.) Replevin for leather claimed to have been fraudulently purchased. Defendants bring error. The facts are stated in the opinion.

<p>Principal and agent — Evidence—Ratification—'Bill of exceptions.</p> <p>3. In a suit involving the liability of the defendants for goods ordered by an alleged, agent, orders drawn on other parties, and not in issue in said suit, nor shown to have been filled, nor recognized or paid by the defendants, are inadmissible to prove such agency.</p> <p>2. The statements of an alleged agent as to his agency, made in a • matter not connected with his principal, have no tendency to prove such agency.</p> <p>5. A bill of exceptions constructed in a connected narrative form, giving the testimony of each witness, and closing with the statement “and thereupon the defendants rested their case,” will be presumed to contain all of the evidence bearing on the questions raised, Hitchcock v. Burgett, 38 Mich. 501,</p> <p>4. An agent, in order to ratify the unauthorized act of another agent, must have general power to perform the act which he ratifies, and both must be agents of the same principal, and the agent whose act is in question must have professed to act as the agent of such common principal.</p> <p>5. An unauthorized act of a stranger may be ratified by the party for whom he assumes to act, but not by his general agent, unless the power of appointing agents has been delegated to such agent.</p>

(Smith, J.) Bill to foreclose a mortgage claimed to be void on account -of infancy of mortgagor at date of its execution, etc. Defendant Palmer appeals. The facts are stated in the opinion.

<p>Pleading — Declaration—Executory consideration — Mutual promises —Damages—Common counts.</p> <p>1. Where the consideration of a contract is executory, the plaintiff is required to state it in his declaration with a greater degree of certainty and minuteness than in the case of an executed one, to enable the court to judge whether the performance alleged is sufficient; and in the case of mutual promises made upon the strength of concurrent considerations, such promises must be alleged to have been concurrent or obligatory upon both parties at the same time.</p> <p>2. Damages for the non-performance of an unrescinded contract, not conditioned for the payment of money, — the undertakings of plaintiff not being fully performed, and his damages arising from his not being permitted to perform them, — cannot be recovered upon the common counts by averring performance.</p>

<p>Certiorari to judge of Branch circuit to review an order refusing to dissolve an attachment.</p> <p>The-facts are stated in the opinion.</p>

<p>Certiorari to the highway commissioner of the township of Port Huron to review his proceedings in laying out a highway.</p> <p>The facts are stated in the opinion.</p>

<p>Municipal corporations — Neglect of council to approve liquor bonds —Liability of city.</p> <p>A city is not liable for the willful refusal of its common council to approve of a liquor bond pursuant to the statute of this State.</p>

<p>Error to Kalamazoo. (Buck, J.)</p> <p>Case for refusal to approve of a liquor bond. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

(Beach, J.) Bill to foreclose a mortgage. Complainants appeal from decree dismissing the bill. The facts are stated in the opinion.

(Beach, J.) Bill to qiiiet title. Defendant appeals from decree granting relief prayed for. The facts are stated in the opinion.

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

Mandamus to compel the board of supervisors of Wayne county to take action under Act No. 62, Laws of 1889. The facts are stated in the opinion.

<p>Error to Alpena. [Kelley, J.)</p> <p>Case for libel. Plaintiff brings error.</p> <p>The facts are sufficiently stated in the opinion.</p>

Mandamus to require respondent to set aside a decree in a chancery suit, tried by jury under the provisions of Act No. 267, Laws of 1887, and to hear it in the usual manner. The facts are stated in the opinion.

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

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

<p>Vendor and vendee — Retention of title as security — Confirmation of sale — Garnishment—Negotiable paper.</p> <p>i. A vendor who retains the title on a sale of personal property until paid for makes such sale absolute by electing to take judgment against his vendee for the unpaid purchase money.</p> <p>3. A justice of the peace is not authorized to. render judgment in a garnishee suit, based solely upon an answer admitting an indebtedness upon a note overdue at time of garnishment, and which third parties claim to be bona-fide purchasers of, before maturity and for value.</p>

<p>Deed — Reservation—Description,</p> <p>The opinion in this case involves questions of fact purely.</p>

<p>Replevin — Affidavit—Failure of affiant to sign — New bond — Waiver —Bill of sale by married woman.</p> <p>1. An affidavit in replevin, describing the plaintiff as affiant, and to which the usual jurat, signed by the justice in his official character, is attached, is not fatally defective because not signed by such affiant.</p> <p>2. A defendant in replevin waives the statutory provision for judgment in his favor, on failure of the plaintiff to forthwith file a new bond where the original one is'defective, by going to tidal on the merits without raising such objection.</p> <p>3. Where a married woman included in a bill of sale of property belonging to her husband certain of her own property, under the mistaken idea of thus protecting it from her husband’s creditors, which fact was known to the vendee, who paid no consideration for said property, she can recover the same, after demand and refusal, in an action of replevin.</p>

<p>Contract — Submission to jury.</p> <p>Held, that the controversy in this case resolved itself into a question of veracity and the weight the jury should give to the conflicting testimony, and that the questions of fact were submitted to the jury, who were correctly instructed as to the law.</p>

<p>Appeal from Wayne. (Hosmer, J.)</p> <p>Bill filed to correct the description in a deed. Defendant appeals.</p> <p>The facts are stated in the-opinion.</p>

<p>Pleading — Declaration—Action by executors,</p> <p>In a suit by executors, the declaration must aver the promise to have been made to their testator in his life-time to admit proof of that fact. Barnum v. Stone, 27 Mich. 332.</p>

<p>Error to Allegan. (Arnold, J.)</p> <p>Ejectment. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

(O’Hara, J.) Case for fraud and deceit in inducing plaintiff to purchase a note. Plaintiff brings error. The facts are stated in the opinion.

■ Error to St. Clair. (Canfield, J.) Case for injuries to property by reason of non-repair of a township bridge. Defendant brings error. The facts are stated in the opinion.

<p>Settlement — Fraud or mistake— Unconscionable advantage — Evidence —Deposition—Gopy of bill of sale.</p> <p>1. A copy of a bill of sale attached to a deposition by the commissioner, pursuant to an interrogatory calling for the production of the original and the attachment of said copy, is competent evidence without the production of the original paper.</p> <p>2. Courts cannot disturb a compromise between parties, unless upon satisfactory evidence of mistake or fraud, or of an unconscionable advantage taken by one over the other.</p>

<p>Trespass — Removal of timber — Possession—Burden of proof — Dam ages — Evidence.</p> <p>1. To maintain trespass, the plaintiff must have either actual or cm. structive possession of the land, and constructive possession cannot exist where there is an actual adverse possession. Buggies v. Sands, 40 Mich. 561.</p> <p>3. Trespass, under the statute, may be brought by the land-owner, regardless of the question of possession.</p> <p>3. In an action of trespass against one in possession, the burden of proof is upon the plaintiff to show t tie to the land trespassed upon.</p> <p>4. The measure of damages in a statutory action of trespass is the value of the timber if standing, and the d minished value of the estate by reason of its removal. Sheets v. Starrett, 57 Mich. 354.</p> <p>5. The price at which timber cut by a trespasser sold, less the cost of cutting and marketing it, is sc me evidence of its value, though not conclusive.</p>

<p>Application for mandamus to compel respondent to grant a new trial.</p> <p>The facts are stated in the opinion.</p>

(Smith, J.) Assumpsit by the receiver of a mutual fire insurance company to recover an assessment. Defendant brings error. The facts are stated in the opinion.

(Smith, J.) Claim filed against estate of deceased person, and allowed in part in probate and circuit courts. Claimant brings error. The facts are stated in the opinion.

<p>Action for slandei — Evidence—Damages—Malice.</p> <p>1. In an action for slander, the burden is upon the plaintiff to prove the utterance of the slanderous words substantially as charged in the declaration, but this rule does not exclude proof of the balance of the conversation.</p> <p>So held, where the words spoken imputed a want of chastity to the plaintiff, and were claimed by defendant to have been spoken of and concerning her sister in an altercation with plaintiff and her mother,1</p> <p>2. The jury in a slander .suit may consider in mitigation of damages evidence showing that the plaintiff provoked the defendant to utter the words charged as slanderous.</p> <p>3. In actions for slander, where the words are not actionable per se, the plaintiff must allege and prove that he has sustained some damages of & pecuniary nature, but, if actionable in themselves, no special damages need be alleged or proved, and the jury may give such damages as shall compensate the plaintiff for the wrong and injury done, the amount depending upon the circumstances of each case.</p> <p>4. Under an allegation, in a declaration for slander, “ that the said plaintiff is greatly injured in her good name, fame, credit, and reputation.” punitive or exemplary damages2 maybe awarded, if express or tvanion malice is shown, and in case of actual malice the jury may always give such damages.3</p>

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

<p>Transfer of land for purpose of sale and distribution of proceeds— Evidence — Deed—Consideration—Pleading—Money had and received.</p> <p>Under the facts in this case (see opinion) it is held:</p> <p>1. That the consideration of a deed may be shown by parol.</p> <p>2. That an action will lie for money had and received by a grantee on the sale of land conveyed to him under a, parol trust to make such sale, and distribute the proceeds among the grantors.1</p>

<p>Equity — Appeal—Hearing in Supreme Court.</p> <p>Where the testimony in a chancery suit is taken in open court, and no case has been settled under the statute, it must stand for hear, ing on appeal upon the pleadings, orders, files, and decree alone, and it will be presumed that there was evidence in the lower court to sustain the decree as made.</p>

<p>Appeal from Wayne. (Gartner, J.)</p> <p>Bill to protect a homestead. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Wayne. (Hosmer, J.)</p> <p>Appeal by executor from settlement of final account.</p> <p>The facts are stated in the opinion.</p>

<p>Sheriff — Indemnity bond — Levy on exempt property.</p> <p>1. A sheriff cannot demand indemnity for levying on exempt property, and is bound to know what his duty is in regard to any claim of exemption by the judgment debtor.1</p> <p>3. A bond reciting a levy on property claimed by other persons than the execution defendant, and conditioned to indemnify the officer for taking and selling goods and chattels which he or his assistant “shall judge to belong to the said adverse parties,” is not ambiguous, and cannot be applied to anything beyond its terms.</p>

(Gartner, J.) Bill filed by husband to set aside deed to his wife as obtained by undue influence. Complainant appeals from decree dismissing the bill. The facts are stated in the opinion.

<p>Error to Wayne. (Beilly, J.)</p> <p>Debt on judgment. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

(Lane, J.) Case for injuries received by reason of defects in bridge. Defendant brings error. The facts are stated in the opinion.

<p>Certiorari to thé circuit court commissioner of Muskegon county to review proceedings for transfer of suit.</p> <p>The facts are stated in the opinion.</p>

<p>Assumpsit — Promissory note— Consideration — Executory promise— Evidence. ,</p> <p>1. A promise by a third party to pay the balance due on certain promissory notes must be based upon a sufficient consideration, which need not be expressed in the writing, but may be proved by any other legal evidence.</p> <p>2. The admission of a valuable consideration in an agreement does not deprive the promisor of the right to prove what the consideration actually was.</p> <p>3. Where the consideration for an agreement sued upon is the executory promise of the plaintiffs, they cannot recover without showing performance on their part.</p> <p>4. In a suit on an agreement to pay the balance due on certain promissory notes, not exceeding a fixed sum, evidence of the failure of the plaintiffs to endeavor to collect the amount due by suit against the payor, before calling upon the defendant for payment, which oral agreement defendant testified was a part of the consideration for his agreement, is admissible, and does not tend to vary defendant’s agreement.</p>

(Gartner, J., presiding.) Proceedings to open a street. Proceedings affirmed, except as to three parcels, for which nominal damages were allowed, and as to these a new appraisement is ordered. The facts are stated in the opinion.

<p>Negligence — Pleading—Concurring negligent acts — Use of cars by street railway company — Evidence—Statements as to cause of accident — Reputation of horse as unsafe.</p> <p>1. Where, in an action for negligence, the accident and resulting injury are alleged as having been caused by several concurring negligent acts and omissions of the defendant, each element of negligence must be proved to warrant a recovery.</p> <p>2. A street railway company is not required to furnish its road with new cars, nor is it liable for using- old ones, but, in either case, must keep them in good repair, and fit for use, so as not to endanger the safety of passengers.</p> <p>3. Evidence of general knowledge and rumor among the employés of a street railway company that a car had been on the road ever since it was built is hearsay and irrelevant in a suit for injuries received Oy a passenger.</p> <p>4. Proof of the general reputation of a horse, driven before a streetcar, among the drivers and employés of the company, as unsafe and unreliable, is admissible as tending to show the negligence of the company in providing such an animal, and using it after the company knew or should have known the unfitness of the horse for the work.</p> <p>5. In a suit against a street railway company for injuries received ' by a passenger, the testimony of a witness to a conversation between the driver and the superintendent, after the accident, in which the driver stated that he had reported the car as having a bad brake, etc., is inadmissible to bind the company with notice of the defect claimed.</p>

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

<p>Criminal law — Breach of the peace — XJse of insulting language in dwelling-house, in presence of occupants — Mandamus.</p> <p>1. The use of foul, abusive, and insulting language in a dwelling-house, in the presence of the occupants, unaccompanied by threats, and causing no expectation or fear of personal violence, is not a breach of the peace within the common-law definition of that term.</p> <p>2. Mandamus will not lie to compel a circuit judge to try an information for an alleged “ breach of the peace,” charged to have been committed by the use of foul, abusive, and insulting language in a dwelling-house, in the presence of the occupants, but accompanied with no threat, and causing no expectation or fear of personal violence.</p> <p>8, The following propositions are summarized from the opinion of Mr. Justice Campbell:</p> <p>a — No principle is more universally settled than that which deprives all courts of power to infer, from their judicial ideas of policy, crimes not defined by statute or by common-law precedents.</p> <p>b — Nothing can be a crime until it has been recognized as such by the law of the land.</p> <p>e — It is a fixed rule that an act must he left to civil remedies, unless it has been recognized as so dangerous to the public as to need repression or punishment as a wrong to the body politic.</p> <p>d — One of the primary objects of the creation of the offices of conservators and justices of the peace was to prevent breaches of the peace, by putting persons under bonds for keeping the peace, or for their good behavior, which includes breaches of the peace, and more.</p> <p>e — It has always been held, and very wisely, that personal injuries purposely inflicted have a direct tendency to disturb the public tranquillity; but there are very few cases where what is essentially a private, and not a public, grievance has been adopted into the list of crimes.</p> <p>4, Mrs Justice Long, in a concurring opinion, concurred in by Champlin and Morse, JJ., says: “It is true that indictments will not lie for private wrongs not directly affecting the public: but, where the conduct and language of the individual is such that its natural and necessary tendency is to incite others to open violence, a,nd provoke assaults, such conduct and language ought to constitute a public offense,” for which some mode of punishment should be provided by the Legislature.</p> <p>5. Chief Justice Sherwood, in a dissenting opinion, says: “ I can never consent to the doctrine that the public peace, which the law secures to the citizen of this State, does not include and secure the tranquillity of the home against invasion by the lawless and violent; and it should be held that, among the most important duties courts and conservators of the peace have to perform is to be vigilant in protecting the quiet and sanctity of the home.”</p>

(Pack, J.) Case for injuries received by reason of a defective crosswalk. Defendant brings error. The facts are stated in the opinion.

(Gartner, J., presiding.) Information for robbery, being armed with a dangerous weapon. Eespondent was convicted, and sentenced to 25 years’imprisonment in the State prison at Jackson. The facts are stated in the opinion.

<p>Municipal corporations — Ordinances and by-laws — Police regulation — Restraint of trade — License fee.</p> <p>1. The law will not allow the right of property or business to be invaded under the guise of a police regulation for the benefit of the public health or good order, when it is manifest that such is not the object or purpose of the enactment or by-law. Austin v. Murray, 16 Pick. 126.</p> <p>2. Where, under its charter, a village has the right to exact a license fee as compensation for the expense of the supervision of a lawful business or trade carried on therein, the exaction of a fee of $10 per month is excessive and unreasonable, and therefore void.</p> <p>3. An ordinance of a village requiring the payment of a license fee of $10 per month for the privilege of selling fresh meat on the village streets, in less quant.ties than one-quarter of the slaughtered animal, is in restraint of trade, and not within the legislative power of the village to enact.</p>

<p>Appeal from Gratiot. (Haft, J.)</p> <p>Bill for specific performance of contract. Complainant, appeals from decree dismissing bill.</p> <p>The' facts are stated in the opinion.</p>

(Newton, J.) Action on a judgment, and for board of the judgment debtor while imprisoned on a body execution. Plaintiff brings error. The facts are stated in the opinion.

<p>Bills and notes — Agreement held not a promissory note — Warranty —Evidence.</p> <p>1. An agreement to pay a fixed sum of money at a certain date, with 7 per cent, interest from date, and 8 per cent, interest after maturity, and 5 per cent, attorney’s fees, without relief from homestead valuation or appraisement laws, to which is added a waiver by the makers and indorsers of presentment for payment, protest, and notice of protest and non-payment, with right to extend the time of payment, is not a promissory note.</p> <p>2. Where the testimony in a suit to recover the price of a machine tended to show that it was bought upon trial, and the defense set up was its failure to fill the warranty under which it was sold, testimony in support of such defense is admissible as against the vendors, or third parties to whom they had transferred a nonnegotiable agreement for the payment of a part of the purchase price of the machine.</p> <p>3. In a suit involving an alleged breach of warranty of a threshing separator, evidence of witnesses who were unacquainted with said machine, and had never seen it work, that separators made and sold by the same manufacturers, and of the same pat ern and size as the one in question, worked well and gave good satisfaction, is inadmissible, having no tendency to show that the machine in controversy was properly constructed and did its work well.</p>

(Reilly, J.) Case for injuries alleged to have been received through the-negligence of the defendant. Plaintiff brings error. The facts are stated in the opinion.

(Grove, J.; Action to recover for personal labor against a stockholder in a manufacturing corporation. Plaintiff brings error. The facts are stated in the opinion and Reporter’s; note.

(Beach, J.) Case for injuries received from a vicious bull. Defendants-bring error. The facts are stated in the opinion.

(Reilly, J.) Trespass for non-removal of encroachment on highway. Defendant brings error. The facts are stated in the opinion.

<p>Justices of the peace — Appeal—Action against indorser — Return— Jurisdiction.</p> <p>1, Where the return, of a justice in an appeal case fails to show any jurisdiction over the defendant, or to set out a cause of action, the defendant, who did not plead below, is not bound to plead or make any defense at the circuit, and any judgment rendered against him is fatally defective on error, if not void on its face.</p> <p>Ho held, where a justice’s return to an appeal from a judgment against an indorser undertook to set out a declaration containing no reference to any note on file, nor averment of service of notice of dishonor, and contained no recital of service of process, or of appearance or of default of the defendant, and was not accompanied by any summons or proof of service of summons, or evidence or copy of any note filed with the justice.</p> <p>,3. A defendant, when appealing, has a right to rely upon the justice’s return as made, and a change therein which vitally alters the situation of the parties cannot be made, except upon a proper application and showing, and an opportunity to be heard on the motion.</p>

<p>Corporations — Organization of company in another state — Authority of directors — Services of officers.</p> <p>1. In the absence of showing any such power, it cannot be presumed that a Michigan manufacturing company has corporate authority, or that its directors have implied authority, to organize companies in other states, and subject its home stockholders to liability for assessments and losses in such enterprises; and certainly individual directors, not acting in any formal way, have no power to employ agents for any such purpose, or to stipulate expressly or impliedly for their compensation.</p> <p>2. There is no implied power in corporate officers, not having special authority, to bind the company for the services of an employé. Kalamazoo Novelty Mfg. Co. v. McAlister, 36 Mich. 329.</p> <p>3. While it is competent for a corporation to employ and pay a director or officer for special work, presumptively services rendered by a director for the general benefit are gratuitous, without some preliminary arrangement under which he acts.</p>

(Hosmer, J.) Petition for maintenance and support. Complainant appeals from a decree allowing her two dollars per week. The facts are stated in the opinion.

<p>Municipal corporations — Public markets — Ordinances and by-laws.</p> <p>1. A city has no right, and the city (of Detroit) has never been empowered, to shut out the producers of fresh provisions and similar farm and garden articles from having convenient access to consumers.</p> <p>2. The amendment to section 11 of chapter 66 of the ordinances of the city of Detroit, adopted April 5, 1889, prohibiting sales of any articles on the Central market except from stalls or stands leased or occupied by the sellers, and confining farmers and gardeners with their vehicles to the Cass and hay markets, is void.</p> <p>8. The charter of the city of Detroit confers full authority upon the common council to pass and enforce ordinances to prohibit and prevent incumbering of streets, and obstructions to public travel over the streets and public places in the city, by vehicles or otherwise, outside of the market limits.</p>

<p>Constitutional law — Justices of the peace — Municipal courts— Jurisdiction.</p> <p>It is competent for the Legislature to vest in the police court of a city exclusive jurisdiction to hear, try, and determine all criminal cases triable by a justice of the peace, where the offense charged wps committed within the corporate limits of the city.1</p>

(Case tried before Judge Chipman, of the superior court, and bill of exceptions settled by Judge Hosmer, of the Wayne circuit court.) Case. Plaintiff brings error. The facts are stated in the opinion.

(Swift, J.) Information for conspiracy to obtain money by means of false pretenses. Eespondents were convicted and sentenced to imprisonment in the Detroit House of Correction for two years. The facts are stated in the opinion.

Exceptions before judgment from Berrien. (O’Hara, J.) Information for tbe illegal sale of liquor by a druggist. The facts are stated in the opinion.

Exceptions before judgment from Mason. (Judkins, J.) Information for forgery. Respondent was convicted. The facts are stated in the opinion.

(Smith, J.) Bill filed for the cancellation and removal from record of a deed. Decree reversed, and one entered granting relief prayed for. The facts are stated in the opinion.

(Brevoort, J.) Defendant was prosecuted for the violation of a village ordinance, and acquitted. Acquittal held a bar to any process of review. The facts are stated in-the opinion.

(William Look, one of the judges of the Wayne circuit court, presiding at the request of Recorder Swift.) Respondent was convicted, on his plea of guilty, in the recorder’s court of the city of Detroit, under an ordinance of said city, of keeping a house of ill fame, and sentenced to pay a fine of $500forthwith, and, in default thereof, to be committed to the Detroit House of Correction until payment of said fine, not exceeding six months, which sentence was affirmed in the…

(Reilly, J.) Case for injury by reason of defective street. Defendant brings error. The facts are stated in the opinion*

(Steere, J.) Defendant was convicted as a disorderly person under a city ordinance for keeping a bawdy-house, and sentenced to pay a fine of $100. The facts are stated in the opinion.