Volume 77 — Michigan Reports

<p>Appeal from Jackson. (Peck, J.)</p> <p>Bill to foreclose a mortgage. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Contract — Logs and logging.</p> <p>One of several log-owners, having logs to be driven out of a creek into the Muskegon river, was placed in charge of the drive by said owners, as agent, under a written contract giving him power to make assessments on the several owners, as required, to pay the cost of such driving, upon an agreed basis as to mileage and amount of logs. Said contract recited that said log-owners were desirous of having their logs driven into the main Muskegon river before the main spring drive on said river of the present year passed said creek, but contained no definite agreement on the part of said agent to drive the logs out by that time, which he failed to do, and certain of said log-owners notified him not to drive any more logs for them, after which he completed the said drive, and made further assessments, which they refused to pay, and he brought suit therefor.</p> <p>Held, that the time when the logs should be driven out of the creek is plainly limited, namely, before the main spring drive on the Muskegon river in the year the contract was made passed said creek, and that, whether the plaintiff was at fault or not for failing to so drive them out, the defendants had a right to say to him, as their agent, that they did not wish him to drive their logs out of the creek after that time, and that it would require a new contract to authorize him to do so. An examination of the opinion is essential to a full understanding of the case.</p> <p>[The points of counsel are stated in the opinion.— Reporter.]</p>

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

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

<p>Ejectment — Riparian rights — Surveyors.</p> <p>1. Plaintiff brought ejectment to recover part of a lot in the city of Muskegon, running to Muskegon lake, the real controversy being over part of a wharf in the lake entirely outside of the shore. Judgment passed for plaintiff below, and in reviewing the case it is held that there is an entire absence of legal proof of what plaintiff owns, in fact or in theory; that the maps and other testimony give no such means of adjustment as would authorize the Court to deal with the abstract questions presented, nor would it be desirable to do so at all; in view of the clear proof, not in any way controverted, that, as a matter of fact, the possession of defendant has been under an actual, defined occupancy very much longer than would cut off any theoretical rights to the contrary if they existed. This testimony was to the effect that, between 20 and 30 years before suit, a line of piles was driven for the purpose of fixing boundaries, which would exclude from plaintiff’s occupancy all of the disputed territory, which act is held to have been the most unequivocal assertion that could well be made, when followed up by the use of the line as a boundary, of such active and business possession as can be had of land under water.</p> <p>2. The following general propositions are summarized from the opinion of Mr. Justice Campbell:</p> <p>a — No occupancy, in hindrance of free navigation, of the waters of a deep navigable lake, can be lawfully enjoyed.</p> <p>5 — There is no rule of law which will authorize a body of water, merely because it is a theoretical expansion of a river, to be treated as anything but a navigable lake (if so in fact), which would not irat the expansions of the St. Lawrence on a similar footing.</p> <p>a — A river is characterized by its confining channel banks, which give it a substantially single course throughout. . A lake occupies a basin of greater or less depth, and may or may not have a single prevailing direction.</p> <p>d — If this body of water (Muskegon lake) were not navigable, and if all its waters could in any way be apportioned among the riparian proprietors for any lawful purpose, it must be done by some rule of proportion, which probably could only be got at by some partition proceeding, inasmuch as such waters are common for all ordinary uses, unless placed in a different position by the public surveys, as has been done in many instances of small so-called “lakes,” not navigable; citing Clute v. Fisher, 65 Mich. 48, and cases cited. But, as this lake is navigable and large, the riparian rights (which, for all available purposes of a possessory nature, must be confined with reference to the paramount rights of navigation) depend on those principles which apply where immediate dependence on the filum aquae or middle thread is impracticable; citing Rice v. Ruddiman, 10 Mich. 125; Lincoln v. Davis, 53 Id. 375; the chief value of which rights must refer to the access to navigation and use with refex-ence to it of the space near the shore, and not to the area of deep water which cannot be appropriated, as was indicaren m those cases and others elsewhere.</p> <p>e — We have had occasion, in several instances, to point out that a surveyor cannot be allowed, under any circumstances, to fix private rights or lines by any theory of his own. Before his evidence can be received at all, it must be connected with the starting- points and other places or lines called for by the grants under which the parties claim. His dury is neither more nor less than to measure geometrically in accordance with those data, and his science goes no further. It -is not his business to decide questions of law, or to pass upon facts that belong to the tribunal dealing with the decision of facts. His testimony, as a man of science, is never receivable except in connection with the data from which he surveys, and if he runs lines they are of no value unless the data are ■established from which they are run, and those must be distinctly proven, or there, is nothing to enable any one to judge what is the proper result.</p>

<p>Log lien — Judgment—Evidence.</p> <p>1. The log-lien law (Act No. 229) of 1887 does not apply to the case of a contractor for hauling saw-logs who performs no jpersonal labor under the contract.</p> <p>2. Where a contractor takes proceedings under the log-lien law of 1887 against the log-owner, with whom he claims to have made a contract for their hauling, and recovers a verdict for the amount claimed to be due on said contract, the fact that bis non-performance of the labor in person deprives him of a lien under said statute will not affect said verdict; and if the verdict and judgment are in the usual form in assumpsit, and are silent as to such lien, it will be presumed that the jury fai.'ed to find a lien, especially where the record shows that their attention was called to the fact that if a lien was found it should be entered as a part of their verdict.</p> <p>8. Evidence of the .existence of a custom as to what part of a scaler’s charges should be paid by a contractor with the owner for hauling saw-logs is admissible, as also proof of what the custom is, the contract being silent upon the subject.</p>

<p>Exceptions before judgment from Kalamazoo. (Buck, J.)</p> <p>Respondent was convicted of forgery.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Washtenaw. (Einne, J.)</p> <p>Foreclosure of mortgage. Complainant appeals from decree dismissing bill.</p> <p>The facts are stated in the opinion.</p>

<p>Assignment for benefit of creditors — Trust fund — Equity.</p> <p>1. The assignee, under our voluntary assignment law, gets no better or greater title to ’the property coming into his hands by virtue of the assignment than the assignor had before the assignment was made; and a receiver has no better or greater rights in the property than the assignee would have had if he had qualified under the trust to him in the assignment. Farrington v. Sexton, 43 Mich. 454; Lentz v. Railway Co., 53 Id. 444; Byles v. Kellogg, 67 Id. 318.</p> <p>2. Where a corporation purchased land subject to the payment of a mortgage, which payment was a condition precedent to the vesting of title under said purchase, after which it conveyed the land by warranty deed, subject to said mortgage, which the grantee agreed to pay as a part of the purchase price, and to that end gave a note to the grantor for the amount, of the mortgage debt, and received an agreement for its payment by the grantor, which note was sold by the president of the grantor and the proceeds used in the business, but the mortgage was not paid, after which the grantor made an assignment for the benefit of its creditors, and on the failure of the assignee to qualify a receiver was appointed, the proper equity court will order the payment of said mortgage by the receiver on the petition of 'the grantee, of whom such payment has been demanded.</p> <p>[The points and authorities of counsel are stated and discussed in the opinion. — Reporter.]</p>

Mandamus. Relator applies for mandamus to compel respondent to allow an information in the nature of a quo warranto to be filed in the circuit court for Ottawa county. The-facts are stated in the opinion.

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

<p>Replevin — Log lien — Service of process — Return of officer — Constitutional law — Illegal taxation of attorney fee invalidates judgment only in that amount — Justices of the peace —Effect of failure to wait one hour after return-hour for appearance of defendant — Docket entries — Log-lien law of 1887 — Affidavit for attachment under— Irregularities in execution under.</p> <p>Í. Where a purchaser of standing timber, the title to which was retained by the land-owner until the purchase price was paid, sold the logs to a corporation, which acquired all of his interest in the same before the logs were attached at the suit of his workmen under the log-lien law, and notice was served on the corporation, but not upon the land-owner, who had not then been paid for the timber, and, after making suck payment, the corporation replevied the logs from the sheriff, the failure to serve notice upon the land-owner will not defeat such lien proceedings in the replevin suit.</p> <p>2. A return of service of process upon “ Charles C. Comstock, as president of the Grand Rapids Chair Company [a corporation], who is the owner of said goods and chattels described in within writ,” sufficiently shows a service upon the corporation, to which the word “who” may be treated as relating, and not to Comstock.</p> <p>8. Act No. 147, Laws of 18S7, which provides for the taxation of a §5 attorney fee in favor of the plaintiff in a suit to recover for personal services, as a part of his costs, is unconstitutional and void. Wilder v. Railway Co., 70 Mich. 382 (head-note 3).</p> <p>4. The illegal taxation of an attorney fee in a log-lien suit, under Act No. 147, Laws of 18S7, will not invalidate the judgment, nor interfere with the lien, except in so far as the illegal excess of costs may reduce it in amount.</p> <p>5. An affidavit for an attachment under the log-lien law (Act No. 229) of 1887 need not state who is the owner of the logs upon which a lien is claimed. Babcock v. Cook, 55 Mich. 7; Shaw v. Bradley, 59 Id. 199; Reilly v. Stephenson, 62 Id. 509, 515.</p> <p>6. It was not decided in Mudge v. Yaples, 58 Mich. 307, Post v. Harper, 61 Id. 434, Noyes v. Hillier, 65 Id. 636, or Wedel v. Green, 70 Id. 642, that the failure of a justice of the peace to wait one hour after the return-hour of process for the appearance of the defendant would void a judgment in favor of the plaintiff where sufficient service had been made or notice given, and the docket showed due appearance by the plaintiff.</p> <p>7. In Bossence v. Jones, 46 Mich. 492, which was a direct proceeding to review a judgment, it was held that a justice of the peace must wait one hour for the appearance of the defendant after the time fixed for hearing, in all cases in which the plaintiff was allowed that time by statute. But it had been held in Smith v. Brown, 34 Mich. 455, that, as there was no statutory requirement for such waiting, a failure to do so was at most but an irregularity, and not open to collateral attack.</p> <p>8. Where due service of attachments in 19 log-lien suits against the same debtor and logs was made upon the debtor, who appeared at the return-hour, — which was the same in each case, — and joined issue in each suit, and the log-owner did not appear, although duly served with notice of such attachments, the failure of the justice to wait one hour after the return-hour before proceeding in said suits will not invalidate the judgments rendered therein, in a replevin suit by the log-owner against the sheriff who had levied upon the logs under executions issued on said judgments.</p> <p>S. An attachment issued by a justice of the peace in a “log-lien suit” brought under Act No. 229, Laws of 1887, may be served by the sheriff of the county where the attachment is issued upon the log-owner in any county in the State, and where such log-owner is a corporation, service upon its president is sufficient notice to the corporation.</p> <p>10. An affidavit under the “log-lien law” of 1887 which alleges that the labor was performed in “cutting, skidding, hauling, chopping, sawing, swamping, loading, and falling the logs (timber) upon which a lien is claimed, is sufficient; “chopping” being included n “cutting,” and “loading” being a necessary part of “hauling,” and “swamping” belonging to the work of “skidding” said logs.</p> <p>11. An affidavit in a “log-lien suit” under Act No. 339, Laws of 1887, which fails to state by whom the labor was performed for which the recovery is sought, is defective; but such defect will not invalidate a judgment for a return of the logs in favor of the sheriff, who had also levied upon them under executions issued upon judgments in favor of several other lien-holders, whose affidavits were not so defective, but it will reduce the amount of his lien in the amount of the judgment in the case where the affidavit is so defective.</p> <p>12. We are not prepared to hold that the failure of a justice of the peace to note on his docket the time of issuing an execution, and to whom delivered, or the fact that it was issued, will vitiate an execution actually and properly issued by the justice, and delivered to the sheriff.</p> <p>13. After the levy of an execution issued upon a judgment in a. log-lien suit brought under Act No. 229, Laws of 1887, upon the-logs, and the posting of notices of sale, the officer holds the-property under such levy, and not under the prior attachment.</p> <p>14. An execution issued under the log-lien law of 1887, and delivered to the same officer who served the writ of attachment, which recites the fact of the rendition of the judgment, and that it is. for work and labor performed upon “ a certain lot of red and white oak saw-logs, as mentioned in plaintiff’s declaration,” and commanding the officer to levy the damages, etc., of the goods and chattels of the debtor, naming him, “namely, the above-described logs,” sufficiently points out to the officer the logs held under the attachment levy.</p> <p>15. Where in such a case the officer levied said execution upon the identical logs he had attached in said log-lien suit, and was proceeding to a sale to satisfy said judgment when the owner of the logs replevied them, the omission from the execution of a command to make such sale is an irregularity which cannot, be taken advantage of in said replevin suit</p>

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

<p>Construction of will — Distribution of assets.</p> <p>A will devising the testator’s estate to her son, and to five grandchildren, naming them, to be divided as follows: One third to the son, and two thirds to the said grandchildren, is construed as giving to each grandchild one fifth of the two thirds so devised to them.</p> <p>[The points of counsel are stated in the opinion. — Reporter.]</p>

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

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

(Gage, J.) Bill to enforce an alleged lien upon shingles manufactured from logs sold by complainants to the appellants' vendor, retaining the title to both logs and shingles until purchase price was paid. Defendants Eastman, Eastman, and Hempy appeal from order appointing a receiver, etc. The facts are stated in the opinion.

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

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

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

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

<p>Certiorari to Lake circuit judge.</p> <p>The facts are stated in the opinion.</p>

(Grant, J., presiding.) Proceedings under mechanics’ lien law of 1887. Plaintiff brings error from judgment holding the law unconstitutional. The facts are stated in the opinion.

Mandamus, Relator applies for mandamus to compel respondents to allow Mm to sit with them as a member of the board of’ supervisors. The facts are stated in the opinion.

Mandamus. The facts are stated by the Beporter as a preface to the opinion.

<p>Appeal from Huron. (Beach, J.)</p> <p>Bill to foreclose a mortgage.</p> <p>The facts are stated in the opinion.</p>

<p>Chattel mortgages — Ownership of mortgaged property — EvidenceTrover — Charge to jury.</p> <p>1. A mortgagee of chattels may maintain trover against any person wrongfully interfering with his right to their possession, even before condition broken. Grove v. Wise, 39 Mich. 163; Harvey v. McAdams, 32 Id. 473.</p> <p>2. The questions involved in this case are so intimately connected with the facts, as stated in the opinion, that an examination of the opinion is essential to their correct understanding, and it is not deemed desirable to embody them in head-notes.</p> <p>[The points of counsel are stated in the opinion.— Reporter.]</p>

Mandamus. Relator applies for mandamus to compel respondent to assess certain taxes. The facts are stated in the opinion.

Mandamus. Relator applies for mandamus to compel respondent to vacate an order allowing an amended declaration to be filed. The facts are stated in the opinion.

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

<p>Chattel mortgages — Assignment of — Affidavit for renewal.</p> <p>1. An affidavit of renewal of a chattel mortgage upon a stock of lumber and other material kept for sale in connection therewith, including all other lumber, stock, or material of every kind which the mortgagors might thereafter add to said business, which states that the mortgagee’s interest in the chattels described in the mortgage remains unchanged, and is hereby renewed for the amount claimed to be due upon the mortgage, is sufficient to continue the mortgage in force as to such after-acquired property.</p> <p>2. Where a chattel mortgage had been assigned as collateral security, but was surrendered by the assignee to the mortgagee before he brought suit for an alleged illegal attachment of the property, said assignee assenting to such suit and accepting other securities in lieu of the mortgage, but not formally re-assigning the same, the defendant cannot complain that his interests, if he has any, were affected by such assignment.</p> <p>[ The points of counsel are fully stated in the opinion. —Reporter.]</p>

Mandamus. Belator applies for mandamus to compel respondents to-audit and allow his bill for justice’s fees in a criminal prosecution. The facts are stated in the opinion.

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

(Canfield, J.) Bill to set aside a deed and for a reconveyance of the property. Complainant appeals from decree dismissing bill. The facts are stated in the opinion.

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

<p>Treatment— Trust-deed — Mortgage by construction— Tt'ustee — Can exercise powers granted only in behalf of beneficiary — Foreclosure by advertisement — Must conform to statutes.</p> <p>1. The owner of 160 acres of land in Huron county, Michigan, before his patent was issued, conveyed the land to one Beeson, and to his heirs and assigns, describing him as trustee, and, after reciting grantor's indebtedness upon a note, authorized the trustee, in case it was not paid, on the application of the payee, or bearer, to enter upon the land and as the attorney of the grantor, or in - his own name, to sell and dispose of the land, in-whole or in part, at-public auction, for the best price it would bring in cash, ten days’ public notice having been given of the time and place of such sale, by advertisement in one of the public newspapers printed in the city of Detroit. Provision was made for the payment of the note and expenses of the proceedings, and for payment of the balance realized on such sale to the grantor, his heirs, etc. The trustee was to convey without personal covenants, so as to be a perpetual bar in law and equity, and on payment of the note was to reconvey to the grantor, who was to pay taxes. The land was wild and unoccupied until 1876, when the trustee conveyed 80 acres to one Grimley, by full warranty deed, who went into possession, under it. In 1880 the grantee, purporting to act as trustee, executed a deed to one Van Dyke of the 160 acres, reciting the trust-deed and that he had caused the sheriff of Wayne county to expose the land for sale at auction, who struck it off to Yan Dyke for a stated sum, as the highest bidder, and that, as such trustee, he conveyed to Yan Dyke the property which the grantor had in the land at date of said trust-deed. The deed to Yan Dyke contained no recitals of the time or place of sale, was not signed by the sheriff, and was absolute in form, with no period of redemption. Yan Dyke afterwards conveyed to Grimley. An action of ejectment was brought by some of the heirs of the grantor against Grimley, and, in reversing a judgment in his favor, the Court hoi.</p> <p>a — The instrument given to Jacob Beeson was a mortgage, and its power of sale, which, did not conform to our statutes, could not authorize the equity of redemption to be cut off by anything short of a sale in equity, .or one in all respects conforming to the statutes. Comstock v. Howard, Walk. Ch. 111.</p> <p>b — There is nothing in this mortgage repugnant to the foreclosure statute, except as permissive, and it would by its terms allow a proper advertisement in Huron county, with the additional advertisement in Wayne county, as no place of sale is made imperative.</p> <p>c — When Grimley bought of Beeson, in 1876, this instrument was on record, and was Beeson’s only source of title, if he had any. It only allowed him to enter, not merely on default, but on the demand of the owner of the note. It gave him no personal interest, and no power to convey without demand of the creditor to foreclose, and foreclosure. His warranty deed was void, as against said grantor and his heirs, and conveyed no legal title whatever.</p> <p>d — The only color of title Grimley has was derived under Van Dyke’s deed, whose title amounts to nothing. As a foreclosure, it is on its face imperfect, because it does not purport to be made under the statute. It therefore did not cut off the redemption, and, under our statutes, gave no right of entry. How. Stat. § 7817.</p> <p>e — Beeson was not interested in his own right. No power was given to him to do any act under the mortgage except when requested by the owner of the note, which was outlawed in 1865, and there is no testimony indicating where it is, or that it exists at all. The attempted foreclosure in 1880 was more than 20 years after the note became due, and does not purport, and is not shown, to have been called for by the holder of the note, which by that lapse of time is beyond the presumable, if not the possible, faculty of aiding or justifying resort to the mortgage.</p> <p>/ — As Beeson never was a trustee to receive payment of the note, but only held title to the mortgage subject to the holder’s order, a sale by him, not authorized by the creditor, could not pass the mortgage to Grimley, even if he held all the land mortgaged. But the mortgage sale of the 160 acres was made in one parcel, for one sum, and Grimley purchased only 80 acres. It would be impossible to hold him an assignee of the mortgage, had Beeson purported to act in accordance with the terms of the trust.</p> <p>g — There is nothing in the defense which in any way interferes with plaintiffs’ right to recover. What rights Grimley. may have in the improvements are not involved in the present record.</p> <p>2. The following general propositions are summarized from the opinion of Mr. Justice Campbell:</p> <p>a — Our statutes may, perhaps, authorize a power of sale in a mortgage, although in some respects variant, to be carried into effect by such notices and proceedings, and subject to such conditions, as are required by law.</p> <p>b — The introduction of powers of sale into mortgages was, as is well known, a device to escape redemption; but in this country, from the beginning, the legislatures have stepped in, and so regulated the sales as to give them proper publicity, and usually made them subject to some reasonable redemption.</p> <p>c — As in all other cases of remedy by act of the party, it has been held that every essential provision of law shall be complied with in executing a mortgage power of sale, and so appear. Parties may add to these conditions, but cannot dispense with them, and the case of a trust may add to, but it cannot take away from, them.</p> <p>d — Where the trust appears on the face of a deed, it is notice to every one of the trustee’s character and duties; and it is declared by statute that every deed in violation of such a trust shall be held absolutely void. How. Stat. § 5593.</p> <p>e — Even under the old law a right of entry by a mortgagee must be exercised within 20 years. Albright v. Cobb, 34 Mich. 316.</p> <p>/ — A mortgagee’s possession not obtained by license of the mortgagor is tortious, and he may be ejected. Newton v. McKay, 80 Mich. 380, and notes.</p> <p>g — In ejectment, where the trial is by jury, no judgment against their verdict can be entered in the Supreme Court.</p>

<p>Equity practice — Foreclosure—Application for rehearing — Laches.</p> <p>In this case a rehearing is held properly denied, and that no relief can be granted now which would not be practically allowing two applications for a rehearing, — one granted and not acted on, and another a substantial repetition of it, — without a willingness to comply with the practice, and after a longer delay than would support an appeal.</p>

<p>Principal and agent — Execution of sealed bond — May be ratified by parol — Question of fact for jury.</p> <p>1. The execution by a traveling salesman of a non-resi,dent firm of a bond of indemnity, under seal, in the name of the firm, in an attachment suit brought to collect a debt due the firm and contracted in the ordinary course of their business, although without express authority under seal, may be ratified by parol, which ratification may be shown by facts and circumstances; and the question of such ratification is for the jury, when there is testimony tending to show it, and inferences to be drawn from such testimony.</p> <p>2. The Court does not depart from Fox v. Norton, 9 Mich. 207, but distinguishes that case from the one at bar in that in that case the execution of the bond by Gilbert & Co., as sureties, was not within the scope of their business, and to bind the partner who did not execute the instrument, in the absence of authority under seal, some previous assent or subsequent ratification as the act or obligation of the firm was requisite to be shown.</p>

(Hooker, J.) Bills for an accounting, and to discharge a mortgage claimed to have been paid. Defendants Post appeal from' a decree granting the relief prayed for. The facts are stated in the opinion.

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

<p>Leases — Executors and trustees — Liability as lessors.</p> <p>1. It may well be doubted whether a declaration in a suit against executors and trustees in their official character, for damages arising by reason of alleged leakage from the roof of a store leased by them to plaintiff, can be amended on the trial by striking out the word “ executors,” and leaving defendants charged as trustees.</p> <p>-2. There is- no legal theory on which either executors or trustees can presumably bind their estate by a five-years’ lease, or by verbal representations concerning the condition of the estate, resulting in unliquidated damages to a large amount.</p> <p>-3. The precise character of the powers granted by the will to executors and trustees cannot be shown by parol.</p> <p>4. An action cannot be made out against executors and trustees, as such, for damages arising by reason of alleged leakage from the roof of a store leased by them to the plaintiff, without proof of the precise character of the powers granted to them by the will of the testator.</p>

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

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

(Hooker, J.) Respondent was convicted of engaging in the business of selling intoxicating liquors, without having executed the required bond. The facts are stated in the opinion.

<p>Criminal laxo — Abduction—Constitutional law — Title of act — Adoption of minor children.</p> <p>1. Act No. 26, Laws of 1861 (being chapter 242 of Howell’s Statutes), which provides for the adoption of minor children, is plainly in violation of the constitutional provision that the object of an act shall be expressed in its title.</p> <p>2. How. Stat. § 9099, does not cover .a case where the person charged to have been abducted (a girl about fourteen years'of age), went from this State to Chicago, freely, and out of her natural love for her mother, she having been adopted under the law of Michigan some six years before, since which she had lived with her foster parents; it mot appearing that any fraud or duress was used, nor any flattery, allurements, or promises, even, employed, to get the girl away from them, beyond the mere asking if she wanted to go.</p>

(Grant, J.) Bill to enforce specific performance of a contract for sale of pine timber. Defendants appeal from a decree providing for forfeiture and annulment of contract without foreclosure. The facts are stated in the opinion.

<p>Taxes — Assessment roll — Intentional omission of taxable property— Special questions to jury.</p> <p>1. The intentional omission from the assessment roll of taxable personal property, the owners of which are known to the assessing officer, will entitle an individual tax-payer to relief from the excessive amount of his tax.</p> <p>So held, where by an agreement between the supervisor and members of the board of review of a township, salt, lumber, and logs, valued at §800,000, and liable to assessment in said township, were not listed for taxation or assessment, and a taxpayer paid her taxes under protest, and brought suit for the recovery of the money; and a judgment in her favor is affirmed.</p> <p>B Only inquiry as to facts material to the issue should be submitted to the jury, and questions which merely inquire whether a witness testified to certain things are irrelevant.</p> <p>B. Where the illegalties in a tax assessment are such that it is impossible to ferret out the legal from the illegal taxes which the tax-payer should pay, the general rule, requiring him to show the excess of taxes over those which he would have been obliged to pay had he been legally and properly assessed, does not apply.</p>

(Grant, J.) Bill to enforce specific performance of an agreement to execute a mining lease. Complainants appeal from decree dismissing bill. The facts are stated in the opinion.

<p>Promissory note — Ownership of — Burden of proof — Charge to jury,</p> <p>1. Where, in a suit upon a note delivered to the secretary of an insurance company as security for a loan made by him, the question of fact to be determined by the jury is whether the money loaned belonged to the secretary or to the company, they can determine such issue without any special instructions as to the law of ownership, or as to what would constitute an ownership of the note either in the secretary or in the insurance company.</p> <p>2. While the unexplained possession of a note, indorsed in blank, is presumptive evidence of ownership and sufficient to warrant a recovery in a suit by the holder thereon, the introduction of evidence tending to show that the note belongs to an insurance company of which the holder is the secretary and treasurer, and ex officio the proper custodian of the note if it belongs to the company, will destroy such presumption, and cast the burden upon the holder to show his ownership. Bank v. Seymour, 64 Mich. 59.</p>

<p>Written contract — Contemporaneous parol agreement not admissible to vary — Breach of warranty — Recoupment.</p> <p>The general rule is that parol contemporaneous agreements cannot be admitted to contradict or to vary the terms of a- written instrument.</p> <p>So held, where, on the purchase of a steam threshing-machine and engine, a written warranty was given by the vendor, and, in a suit to recover the purchase price, the vendee was allowed to prove a prior verbal warranty as to the power of the engine to run a specified separator which was not contained in the written warranty; the admission of which evidence. is held erroneous.</p>

Clair. (Canfield, J.) Defendant was convicted of a violation of a sidewalk ordinance, and fined $25 and costs, and in default of payment sentenced to 30 days’ imprisonment, which conviction was set aside on certiorari to the circuit court, which judgment is affirmed. The facts are stated in the opinion.

<p>Appeal from St. Joseph. (Loveridge, J.)</p> <p>Bill to enjoin the diversion of a water-course. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

(Buck, J.) Bill to set aside a partnership settlement, and for an accounting. Defendants appeal from order overruling demurrer. The facts are stated in the ouinion.

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

(Reilly, J.) Bill for divorce. Defendant appeals from an order adjudging him guilty of contempt for failure to pay temporary alimony. The facts are stated in the opinion.

(Reilly, J.) Bill filed to impeach the transfer of certain property Df the insolvent debtor to defendant, and for appointment of receiver. Defendant appeals from an order appointing receiver. The facts are stated in the opinion.

<p>Appeal bond — Liability of surety.</p> <p>In this case judgment was rendered at the circuit against an appellant from justice’s court, and his surety, for §25.01 damages, with costs to be taxed, which were taxed at §50.35. The penalty of the appeal bond was §50.00, and the judgment, being otherwise upheld in the Supreme Court, is reversed as to the surety, and one entered limiting the recovery against him to §50.00, and with this modification the judgment is affirmed.</p>

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

<p>Promissory note — Fraitdulent inception — Good-faith purchaser-Burden of proof.</p> <p>1. When in a suit upon a promissory note, by an alleged innocent holder, the defendant gives evidence, which is not disputed, that the note was given in an illegal transaction, void as-between the original parties on the ground of public policy, it is not error for the court to instruct the jury that the evidence-shows a fraudulent transaction as to the original consideration, and that the burden of proof is upon the plaintiff to show by a preponderance of evidence that he is a purchaser in good faith. Mace v. Kennedy, 68 Mich. 389 (head-note 5).</p> <p>2. The rule is well settled that when there is nothing upon the face of a note to cast suspicion upon its character it can only be impeached, in the hands of a holder, for value, by evidence that he took it under, circumstances which rendered him guilty of bad faith. The circumstances surrounding each particular transaction, however, may be taken into consideration in determining this question, and, frequently, direct and positive proof may not be obtainable to show such bad faith.</p> <p>3. In a suit upon a so-called “ Red Lyon Wheat ” note, the defendant may introduce in evidence the bond received by him as a part of the transaction in which the note was given, the two papers being construed together as showing the true nature of the contract. McNamara v. Gargett, 68 Mich. 454 (head-note 1).</p>

<p>Replevin for beasts tdistrained — May be brought under general statute if defendant acted in bad faith — Division fences.</p> <p>1. No person has a right to distrain cattle lawfully upon adjoining land which have escaped therefrom in consequence of his own neglect to maintain his part of the division fences; and the owner of such cattle, if distrained, may replevy them under the general statute.</p> <p>2. How. Stat. chapter 289, relative to distraining and replevying heasts, was intended to provide a summary remedy for any person injured in land by certain enumerated beasts trespassing thereon; and when a party has in good faith taken cattle damage-feasant, thereunder, and the owner desires to bring replevin to test the legality of such taking, he must proceed under the special provisions of said chapter. Johnson v. Wing, 3 Mich. 163; Hamlin v. Mack, 33 Id. 103; Campau v. Konan, 39 Id. 362.</p> <p>[The points of counsel are fully stated in the opinion. —Reporter.]</p>

(Grove, J.) Appeal from an order of the circuit court, on appeal from the probate court, dismissing a petition for appointment of administrator. The facts are stated in the opinion.

<p>Principal and agent — Declaration—Inconsistent causes of action— Verbal promise to pay debt of another.</p> <p>1. An agreement by which a party is to loan out to borrowers money furnished by another party, at an agreed rate of interest, he to collect and account for all over one per cent., which he is to retain as his compensation, constitutes him an agent coupled with an interest, and he is bound to discharge his duties with fidelity and good faith towards his principal.</p> <p>2, An agreement by an agent to stand as security for all loss the principal might sustain on loans made by the agent, by reason of insufficient security or defect of title, is held not to apply to prior loans, nor is evidence of such an agreement admissible in a suit against the agent unless specially counted upon.</p> <p>8. No recovery can be had upon the common counts in assumpsit for property received by an agent, without authority, in payment of the amount due the principal upon a mortgage, the principal not having ratified such unauthorized act of the ■ agent, nor released the' mortgagor from his obligation in reliance upon the agent’s liability or obligation to pay to the principal the avails or value of said property.</p> <p>4. A declaration in a suit by a principal against an agent averring the duty of the agent to pay to the principal certain moneys and property received by him upon a mortgage belonging to the principal, and sufficient in amount to pay the same in full, and also counting upon the promise of the agent that, if the principal would make a sale of the mortgaged premises under a decree before then taken on a foreclosure of the mortgage, he would pay him any deficiency arising on such sale, sets forth two inconsistent causes of action.</p> <p>5. A verbal promise by an agent to pay the principal any deficiency which might arise upon a sale under a foreclosure decree, if the principal would make such sale, is void under the statute of frauds, the principal being the owner of the decree, and the agent being under no prior legal obligation to pay the mortgage debt</p> <p>6. “In many cases the test whether a promise is or is not within the statute of frauds is to be found in the fact that the'original debtor does or does not remain liable on his undertaking. If he is discharged by a new arrangement, made on a sufficient consideration, with a third party, this third party may be held on his promise, though not in writing; but if the original debtor remains liable, and the promise of the third party is only collateral to his, it will, in strictness, be nothing more than a promise to answer for the other’s debt. But where the third party is himself to receive the benefit for which his promise is exchanged, it is not usually material whether the original debtor- remains liable or not.” Calkins v. Chandler, 36 Mich. 324 This principle, applied to this case, shows very clearly that the defendant is not liable under his promise to pay the deficiency on the foreclosure sale.</p>

<p>Chattel mortgage — Attachment of property in defiance of — Replevin by mortgagee — Good faith of parties to mortgage material — Evidence—Mortgage to secure future advances— Charge to jury.</p> <p>1. Upon the trial of issues involving fraud, a pretty large latitude of inquiry is permitted; and all facts and circumstances tending to throw light upon the transaction between the parties alleged to have been implicated are allowed to be given in evidence.</p> <p>So held, where a mortgagor conveyed to the mortgagee, after an attachment of the mortgaged property by his creditor, and its replevin by the mortgagee, his interest in 480 acres of land which he held under a contract of purchase, and was credited in account with the amount he had paid on the contract and for taxes, after which the mortgagee paid the balance of the contract price and secured the title contracted for, and it was claimed on the trial of the replevin suit that the value of the land was largely in excess of the sum paid, and the amount credited by the mortgagee in reduction of the indebtedness secured by the mortgage, in support of which claim defendant was allowed to prove what the mortgagor claimed the land was worth, and its actual value, which are held proper subjects of inquiry as affecting the question of the intent of the parties,</p> <p>2. A provision in a chattel mortgage allowing the mortgagor to retain possession until the debt is due is for his benefit, and may be waived by him at any time. Ganong v. Green, 71 Mich. 1.</p> <p>3. The waiver by a mortgagor of his right to the possession of the property until the maturity of the mortgage debt, and his consent that the mortgagee may take immediate possession, cannot affect the rights of an attaching creditor, who, if he regards the mortgage as valid, should levy subject to the rights of the mortgagee, and if he claims it void as to creditors, and succeeds in showing such fact, the agreement as to possession will not affect that question.</p> <p>4. A mortgage given in good faith to secure future advances agreed to be made by the mortgagee, as well as present indebtedness, is valid.</p> <p>5. An instruction to a jury in a case involving questions of law and fact that there is no law involved in the case that amounts to any thing is erroneous.</p> <p>6. An instruction that the jury should find which side is in the right is too general, as it allows them to enter the domain of morals, and measure the liability of the parties by the individual notions of the jurors as to whether the conduct of the parties was right or wrong,</p> <p>7. An instruction which leaves the jury judges of the law as well as of the facts, and allows them to render a verdict based upon their abstract notions of what is right between man and man, is erroneous. Lumber Co. v. Gray, 73 Mich. 356.</p>

(Peck, J.) Bill filed to obtain construction of a will. Complainant appeals. Decree dismissing bill set aside, and decree entered in accordance with opinion, in which the facts are stated.

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

<p>Negligence — Master and servant — Risks assumed by servant.</p> <p>In this case the direction of a verdict for the defendant on the ground that it appeared from the evidence that, whatever risks there were in regard to the employment, they were not concealed, but were open and visible, and known to the deceased, who must be deemed to have accepted and continued in the employment with reference to the same, is held fully justified. Swoboda v. Ward, 40 Mich. 423; Balle v. Leather Co., 73 Id. 158; Kean v. Rolling Mills, 66 Id. 277; Melzer v. Car Co., 76 Id. 94.</p>

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

<p>Insurance policy — Forfeiture clause — Estoppel—Application for insurance — Evidence.</p> <p>Where an insurance agent who had authority to make and deliver policies of insurance without referring the applications to the company, prior to such delivery, agreed with an applicant that she might incumber the property in a given amount, and that he would indorse such agreement upon the application, and there is nothing in the policy limiting the power of the agent to make such an agreement, the company is estopped from claiming any forfeiture by reason of such additional incumbrance.</p>

<p> Mandamus. </p> <p>Relator applies for mandamus to compel respondent to-draw his warrant on the State treasury to pay relator’s claim for burial expenses, etc., as allowed by the circuit court, under the statute. The facts are stated in the-opinion.</p>

(Brevoort, J.) Respondent was convicted of larceny, and sentenced to 18 months* imprisonment. The facts are stated in the opinion.

<p>Criminal law — Improper statements to jury — Evidence.</p> <p>L A statement by the prosecuting' attorney, 'in opening the trial of a criminal case, that one reason why he Vas more prejudiced against the respondent is because he has committed perjury in another court, for the purpose of assisting one of his fellow prisoners, and its indorsement by the court’s statement, in answer to an objection by respondent’s counsel, that “ I must say that considerable of that has come under my own notice,” are too. plainly illegal to need comment, and entitle the respondent to a new trial.</p>

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

<p>Error to Wayne. (Gartner, J.)</p> <p>Eespondent was convicted of burglary and sentenced to State prison for six years.</p> <p>The facts are stated in the opinion.</p>

<p>Equity — Pleading—Multifariousness—Demurrer—Trusts—Settlement of estate in probate court.</p> <p>1. Where one of two beneficiaries under a trust in their favor in a will refuses to join as a complainant in a bill to enforce the trust, such beneficiary is properly and necessarily made a party defendant.</p> <p>2. Where the only living beneficiaries of a trust are of full age, and capable of settling with the trustee, or among themselves, without the intervention of the probate court, a bill to close said trust, and compel a conveyance by the trustee to the beneficiaries of the land devised to him in trust for them, filed seventeen years after the death of the testatrix, need not show that her estate has been settled in the probate court.</p> <p>8. This case is supplemental to Weaver v. Van Akin, 71 Mich. 69; the bill being filed to enforce a trust in favor of the complainant and defendant Van Akin, and for an accounting by the trustee, Hadley; and the Court hold that the bill makes a case for equitable relief, and affirm the decree below overruling the demurrer of the defendant.</p>

<p>Fraudulent representations — In pari delieto — Statute of frauds.</p> <p>1. While a man is, for public reasons, held responsible for his conduct, although ignorant of law, there is no conclusive presumption that he actually knows the law. Black v. Ward, 27 Mich. 191; Stanton v. Hart, Id. 539.</p> <p>2. Where a man is defrauded, as often happens, by the misrepresentation of some one who assumes knowledge, and where, under the circumstances, he is actually deceived, and not consciously wrong, the fact that the transaction is against public policy in law will not necessarily compel the victim to submit to the fraud of the actual villain.</p> <p>B. The only rigid rule forbidding relief is where parties are in equal guilt. While the law does not draw fine distinctions in ascertaining equality of wrong, it recognizes the fact that one party to such an arrangement is not necessarily an equal party in guilt, or consciously guilty at all, and will not deny relief to an injured party against the one who is really the deceiver, and who commits fraud by means of his persuasive or other influence over his victim.</p> <p>4. How. Stat. § 6188, requiring representations in writing to susstain an action upon favorable assurances concerning the character, conduct, ability, trade, or dealings of another person, was intended to reach cases where the plaintiff has dealt with and given credit to the person favorably.mentioned, and done so on the faith of the assurances. Nor can the statute apply to conspiracies or frauds, where the representation is made to enable the party making it to profit by it.</p> <p>6. In this case, if the testimony is true, defendant, by false and fraudulent pretenses, and without any consideration at all, got from plaintiff notes which he had to pay, and divided the plunder between himself and his confederates. Upon the facts, if believed, the cause of action was complete, and the case should have gone to the jury.</p>

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

Mandamus. Relator applies for mandamus to compel respondents to re-instate his son in the public schools. The facts are stated in the opinion.

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

Habeas corpus proceedings. Prisoner applied for his discharge from State prison on the ground that, if any part of his imprisonment was valid, the time allowed by law for holding him had expired. The facts are stated in the opinion.

Mandamus. Relator applies for mandamus to compel the circuit judge to vacate an order striking from the files a bill- of exceptions heretofore signed and filed, and for other relief. The facts are stated in the opinion.

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

(Gartner, J.) Bill to enjoin defendants from selling stock in a manufacturing coi’poration, held by them as security. Defendants appeal from decree directing retransfer of stock to complainant, and that defendants pay a balance of $35,219.25 found due complainant. The facts are stated in the opinion.

(Smith, J.) Bill to remove cloud from title. Complainant appeals from decree dismissing bill. The facts are stated in the opinion.

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

<p>Sale to creditor — Attachment in defiance of — Replevin—Intent— Question for jury.</p> <p>This case involves the alleged fraudulent sale of property to pay a debt, and is held to have been fairly submitted to the jury. No evidence was given on the part of the defendant disputing the fact of the indebtedness of the vendor to the plaintiff, the only contention being that this fact was open to suspicion from the testimony of the plaintiff himself, and because a note was not given up, or canceled, at the time of the sale, which it is held were proper matters for the jury to pass upon.</p>