Volume 79 — Michigan Reports

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

<p>Pleading — Bill of particulars — Negligence—Planle-road companies— Evidence — Delay in bringing suit.</p> <p>1. A bill of particulars is only granted where the pleading is more or less general.</p> <p>So held, in a negligence case, where the declaration averred, that “plaintiff was hurt, bruised, and wounded,” but gave no. description of the place or extent of the injuries, and defendant made a showing of a want of knowledge of the particulars, of the injury, and demanded a bill of particulars, which was. refused on the ground that none was demandable in such actions, which ruling is sustained.</p> <p>2. Under a declaration in a negligence case, containing no more specific averments as to the injury complained of than that “plaintiff was hurt, bruised, and wounded,” evidence of fractures of plaintiff’s shoulder, arm, and hand, and a temporary strain of the hip, not only producing temporary pain, but, as claimed, permanent injury, and some disability, is inadmissible.</p> <p>3. An instruction to a jury in a negligence case that no prejudicial inferences should be drawn from plaintiff’s delay in bringing suit, which was not begun until within a few days of six years after the accident, is erroneous'.</p> <p>4. Under a declaration in a negligence case against a plank (gravel) road company, in which plaintiff avers that the obstruction (a log) which caused the injury complained of was inside of eight feet from the center of the sixteen feet required by law for a roadway, to which fact he also testified on the trial, it is error to allow any recovery on the theory that the log was outside of said roadway.</p> <p>5. In such a case, where the testimony shows that the road-bed at the place where the accident happened was in good condition, except for said obstruction, and that in turning out to pass a team the wheels of plaintiff’s wagon struck the log, and owing to the slippery condition of the road, caused by a light fall of snow, plaintiff was thrown from' his wagon and injured, it is not competent to allow any question of negligence to be based on any testimony concerning the general and permanent condition of the road-bed.</p> <p>6. The statute (How. Stat. §§ 3581, 3594) is express as to the width of the roadway which a plank or gravel road company is bound to keep up, and only requires a wider one where ordered, for special reasons, by the public authorities, under How. Stat. § 3595. The law presumes that 16 feet is wide enough for all usual purposes, and travelers must act on that theory.</p> <p>7. The following general propositions are summarized from the opinion of Mr. Justice Campbell:</p> <p>a — In an action on the case, the injury which is complained of, and for the consequences of which the suit lies, must be charged with reasonable certainty, so that there can be no difficulty in knowing what to meet in the proofs. If no injury is definitely charged, the declaration is demurrable; but where a sufficiently definite showing is made to give a cause of action for direct or consequential damages, no demurrer will lie, and a defendant can only be saved from surprise by confining the recovery to the causes sufficiently described.</p> <p>b — The word “hurt” is so general as to give no information. “Bruised” is more definite, but does not indicate necessarily or generally more than a temporary contusion, which may be on any part of the person, light or severe, but seldom more than temporary in effect. A “wound” is any injury breaking or cutting the skin, and is no more definite than hurt or bruised.</p> <p>c — Whenever the damages sustained do not necessarily arise from the act complained of, and consequently are not implied by law, in order to prevent surprise of the defendant, which otherwise might ensue on the trial, the plaintiff must, in general, state the particular damage which he has sustained, or he will not be permitted to give evidence of it. DeForest v. Leete, 16 Johns. 138, citing 1 Chit. PI. 386 (4th ed. 347); Sedg. Dam. chap. 24. See cases in Jac. & O. Dig. p. 531, §§ 62, 63.</p> <p>d — In actions on the case for injuries sustained by reason of failure to keep a highway in repair, all the damages are special, for the plaintiff has no concern with the condition of the road, except as he suffers personally from it.</p> <p>e — Courts of equity, when dealing with matters of fact not barred by lapse of time, are in the every-day habit of considering delay (in bringing suit) as one of the elements of judgment, and of requiring stronger testimony in stale cases.</p> <p>/ — The whole reason for statutes of limitation is found in the danger of losing testimony, and of finding difficulty in getting at precise facts.</p> <p>[The points of counsel are discussed in the opinion, with citations of authorities. — Reporter.]</p>

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

(Smith, J.) Action by writ of scire facias to revive an execution returned satisfied. Defendants bring error. The facts are stated in the opinion.

(Newton, J., presiding.) Bill to declare a chattel mortgage, executed contemporaneously with an assignment for the benefit of creditors, void as an illegal preference. Complainants appeal from decree dismissing bill. Reversed, and decree entered as prayed for. The facts are stated in the opinion. •

<p>Fraudulent conveyances — Trust—Estoppel,</p> <p>1. In this case the sale under which plaintiff claims, although evidenced by a bill of sale absolute in form, and followed by a delivery of the property, is held not to have been in fact absolute, but to have been made upon a secret trust to pay certain secured creditors, and then reconvey and return to the vendors any property which should remain after such payment; that the intent of the parties in making said conveyance was a question which, under the testimony, was fairly submitted to the jury, whose verdict has settled it in favor of the defendants, who allege said sale to have been made with intent to hinder, delay, and defraud the creditors of plaintiff’s grantors.</p> <p>2. In such a case the fact that a creditor of the grantor hired sawing done at a mill included in said conveyance, with knowledge of the terms of the alleged sale received soon after it was made, which sawing he paid for, — the grantee refusing to apply any part of the paw bill upon the creditor’s debt, — is not such an act as will preclude him from attacking the validity of the sale.</p> <p>3. Mere notice without any action on the part of the creditor, and mere acquiescence by taking no present measures to set aside the conveyance or interfere with the transfer, does not amount to a confirmation. The creditor can be precluded' from assail- • ing the transfer only on the ground of estoppel or agreement. There must have been a benefit conferred upon him, or some disadvantage suffered by the vendee, such as ought to bind the conscience of the creditor, or clothe his act with the character of a contract. Bank v. Davis, 44 N. H. 548; Jenness v. Berry, 17 Id. 549; Knaufh v. Bassett, 34 Barb. 31; Annin v. Annin, 24 N. J. Eq. 184; Hays v. Heidelberg, 9 Penn. St. 203.</p> <p>4. The following propositions are summarized from the opinion of Mr. Justice Champlin:</p> <p>a — The intent of the parties to a conveyance, and its effect upon the grantor’s creditors, form the criterion by which to determine whether the conveyance is fraudulent. Pierce v. Hill, 35 Mich. 199.</p> <p>b — If a conveyance is made with intent to hinder or delay or defraud creditors of the grantor in the collection of their demands, it will be fraudulent as to them. Oleland v. Taylor, 3 Mich. 201; Trask v. Green, 9 Id. 358; Maynard v. Hos-kins, Id. 485; Pierce v. Rehfuss, 35 Id. 53; Allen v. Kinyon, 41 Id. 281.</p>

<p>Contract — Construction—Evidence—Reasonable time.</p> <p>1. Proof of so much of the surrounding circumstances under which a written contract was made as is necessary to enable the court to properly construe it is always admissible.</p> <p>2. In this case the plaintiffs contracted in writing with defendants to insert four pages of illustrations and prices of defendants’ goods in an edition of plaintiffs’ catalogue of American manufactured goods, to be circulated by plaintiffs’ correspondents in foreign countries. Defendants agreed to furnish electrotypes and copy for the four pages, but m time was fixed within which this was to be done. The contract was made January 28, 1886, and the catalogue was published January 1, 1887, without defendants’ advertisements, which they had been notified must be furnished by November 1, 1886, or the catalogue would be published without them. The trial judge found from the evidence that this was not a reasonable time under the circumstances of the case, and that the publication was premature, and that plaintiffs must be regarded as having abandoned their claim under the contract; which findings are held to have been fully justified.</p>

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

<p>Constitutional law — Introduction of bill into Legislature — Report of substitute — Legislative journals — Evidence.</p> <p>1. Article 4, section 28, of the Constitution, which provides that “no new bill shall be introduced into either House of the Legislature after the first fifty days of a session shall have expired,” is violated by the reporting of a new bill after said fifty days as a substitute for a pending bill introduced within the constitutional period, the subject-matter of which has no connection with the subject-matter of the new bill.</p> <p>So held, where the original hill provided for the discontinuance of a certain portion of a State road in a specified county, and the substitute provided for the construction and maintenance of stone, gravel, macadamized, and dirt roads in another county, and to raise money by the issuing of bonds for that purpose, the object of each bill being set forth in the title.</p> <p>2. Testimony of members of the Legislature is inadmissible to show the proceedings in that body, and to prove the contents of the body of a bill as introduced. Attorney General v. Rice, 64 Mich. 386 (head-note 6).</p> <p>3, The following propositions are summarized from the opinion of Mr. Justice Morse:</p> <p>a — If the constitutional provision limiting the introduction of bills to the first fifty days of the session is in the way of legislation, and the people desire that new bills may be introduced at a later period, there is a constitutional way to remove the inhibition. But it is the duty of the courts until then to see that it is obeyed.</p> <p>6 — We have the right, as heretofore held, to examine the journals of the Legislature for certain purposes, and, while the presumption is strong that that body has not violated the Constitution, still, if the proof furnished by the journals is clear that an act was not constitutionally passed, it is the duty of the courts to so declare, and to hold it void. Green v. Graves, 1 Doug. 351; People v. Supervisor, 16 Mich. 254; Attorney General v. Rice, 64 Id. 385; People v. McElroy, 72 Id, 446.</p> <p>e — The Court will take judicial notice that territory specifically described and located in the county of Midland does not include any part of the county of Saginaw.</p> <p>d — In Attorney General v. Rice, 64 Mich. 385, the change was only in the name of the township to be organized, and the title as introduced and as passed gave no hint but what the territory in the body of the bill was the same, which fact was presumed in favor of constitutional action by the Legislature, which had power to increase or dimmish the territory included in the bill by amendment.</p> <p>e — We did not intend by what was said in People v. McElroy, 72 Mich. 446, in relation to the form or status of the title at the time of the introduction of a bill, or while it was pending, being immaterial, to hold that the language of the title could not be inquired into and used in an investigation of this kind. It is a part of the journals, and can be used to support or rebut a presumption of the correctness of legislative action, and, where the words of a title as introduced are clear and specific, such title becomes of great importance in determining whether the mandate of the Constitution has been obeyed or its requirements followed in the passage of the act.</p>

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

<p>Ejectment — Prior possession — Intruder—Judgment—Landlord and tenant — Surrender of premises.</p> <p>1. A plaintiff having no title whatever to land, into the possession of which he entered in good faith, under a claim of title which proved valueless, can maintain ejectment against a person who has obtained possession through an agreement with plaintiff’s tenant at will, said person showing no right, title, or interest in the land, except a claim, merely asserted, but not proved, of being the original owner of the land. Bertram v. Cook, 82 Mich. 521; Cook v. Bertram, 87 Id. 125; Bertram v. Cook, 44 Id. 897; Morse v. Byam, 55 Id. 594; Fuller v. Sweet, 80 Id. 241.</p> <p>2. The law is well settled that the possession of land is sufficient to authorize a recovery in an action of ejectment against a more intruder; and, in the absence of proof of a paper title on either side, the presumption of title is in favor of the first possessor. Davis v. Easley, 18 III. 192; Brooks v. Bruyn, 18 Id. 541; Hubbard v. Little, 9 Cush. 475; Jones v. Easley, 58 Ga. 454; Christy v. Scott, 14 How. 283; Burt v. Panjaud, 99 U. S. 180;, Whitney v. Wright, 15 Wend. 171; Thompson v. Burhans, 79 N. Y. 93; Kinney -v. JSarrett, 46 Mich. 87.</p> <p>3. The presumption arising from proof of prior possession of a party, in an action of ejectment against a mere intruder, is that such party was seised in fee, and is prima facie evidence of such fact.</p> <p>4. Kent may be reserved in services as well as in money, and in a tenancy at will must be such as accrues from day to day. So held, where a party was let into possession of land under an agreement to keep off trespassers for its use, which he did, and thereby incurred some litigation, and it is held that a tenancy at will was thereby created.</p> <p>5. If a tenant at will vacates the premises, which he may do at any time, it will be treated as a surrender to the landlord; or, if he abandons them, it will be presumed that he abandoned, the possession to the landlord. Warner v. Page, 4 Vt. 291.</p> <p>6. A tenant at will cannot surrender his possession to strangers seas to give them any greater rights than he possesses, nor do anything to impair his landlord’s right to the possession of the premises.</p>

<p>Error to Eaton. (Hooker, J.)</p> <p>Proceedings for an alleged obstruction of a street. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Eelator applied for mandamus directing the respondent, as Auditor General, to cancel certain drain taxes, claimed to be an illegal charge upon its land. The facts are stated in the opinion.

Error tp Kalamazoo. (Buck, J.) Despondent was convicted of keeping a house of ill fame, and sentenced to two years’ imprisonment in the Detroit House of Correction. The facts are stated in the opinion.

<p>Divorce— Cruelty.</p> <p>In this case the decree below, dismissing complainant’s .bill, is reversed, and a decree entered for absolute divorce as prayed. Questions of fact alone are involved.</p>

<p>Statute of frauds — Verbal representation as to persons composing partnership.</p> <p>A representation that a certain person is a member of a specified firm, by means of which the party to whom the assurance was made was induced to sell the firm goods, which were not paid for, does not fall within How. Stat. § 6188, requiring favorable representations or assurances concerning the character, credit, ability, trade, or dealing of any other person to be in writing in order to be actionable. Hess v. Culver, 77 Mich. 598,</p>

(Peck, J.) Bill to enjoin suit at law brought for the 'collection of certain railroad bond coupons. Complainant appeals. The facts are stated in the opinion.

Mandamus. Relator applies for mandamus to compel the granting of a second trial in ejectment. The facts are stated in the opinion.

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

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

<p>Error to St. Joseph. (Pealer, J.)</p> <p>Case. ' Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

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

<p>School-district order — Validity of — Remedy,</p> <p>There is no reason why a school-district should be put to the expense of a suit by reason of the refusal of the assessor to pay a school order, mandamus being the proper remedy.</p>

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

<p>Fraudulent conveyances — Equity pleading — Witnesses—Evidence.</p> <p>1. An answer by the grantee in an alleged fraudulent conveyance to a creditors’ bill, in which he contents himself with saying that the conveyance, if any was made, was made in good faith and for a valuable consideration, is not only without point, but it asserts no rights whatever in the grantee, and is a circumstance of some meaning.</p> <p>2. It seems a little incongruous to claim that a party who puts a defendant on the stand for the express purpose of showing his fraud, thereby gives him credit for honesty. This same claim was set up in Roberts v. Miles, 12 Mich. 297, where it was held that, whatever risks may be run in doing so, testimony is to be judged according to its merits, and creates no estoppel.</p> <p>3. While fraud is not to be assumed without proof, it is nevertheless oftener shown by circumstances than in any other way. When things appear that are contrary to the ordinary ways of honest husiness men, and call for explanations which might be, but are not, given, it is no violent inference to conclude that there is something wrong; and where this occurs repeatedly, and is the general characteristic of the conduct and statements of the parties, it is their own fault if they are held to the consequences.</p> <p>4. It is held upon, a review of the record that the transaction complained of in this case was not only meant to avoid payment of a claim which had no defense, but that there was no genuine sale to defendant Timothy W. Jackson; and the conveyance to him is declared void as against complainant’s levy and judgment, who is entitled to a receiver, if he chooses ‘to have one, and to have the usual assignment to him under the practice in judgment creditors’ bills, and to pursue the usual remedies in such cases.</p>

<p>Appeal from Sanilac. (Beach, J.)</p> <p>Bill to compel discharge of real-estate mortgage. Complainants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Fire insurance — Pleading—Proofs of loss — Waiver.</p> <p>1. Under a declaration in an insurance case alleging that proofs of loss were forwarded to the Chicago office of the company, evidence that they were sent to its Providence office is inadmissible without an amendment, in which case the defendant is entitled to a continuance to enable it to produce witnesses from the Providence office, if desired; nor will the failure of the company to produce such proofs, on due notice, warrant the admission of such evidence, the company claiming that it never received the proofs, and therefore could not produce them.</p> <p>3. Notice from an insurance company to a policy-holder that it did not propose to adjust or pay his loss, because it believed he had set fire to the building, will excuse him from making such proofs of loss before bringing suit; and evidence of such facts rebuts any idea of waiver of the limitation in the policy as to bringing suit.</p> <p>B. Where, almost immediately after a fire, the assured was notified that the company claimed that he set fire to the building, and that no insurance would be paid for this reason, the fact that this was not one of the reasons assigned by the manager of the company for rejecting proofs of loss will not preclude the company from asserting it as a defense under a proper plea and notice.</p>

<p>Flea in abatement — Partnership—Set-off—Exelusion of witnesses from, court-room — Remarks of counsel to jury.</p> <p>1. A plea in abatement averring that the parties were copartners at the time the cause of action counted upon arose, but which fails to aver that it grew out of partnership accounts, is too-uncertain to stand as a good plea.</p> <p>2. Where plaintiff’s claim, as sworn to by him, is in dispute, except as to certain enumerated items, and the defendant claims certain items as set-off, it is error for the court to direct a verdict in favor of the plaintiff.</p> <p>3. The question of the jjreponderance of evidence is for the jury.</p> <p>4. It is a matter generally within the discretion of the court to exclude witnesses; but, when such discretion is exercised, it should not be in a manner prejudicial to either side of the controversy, and all witnesses should be excluded who are to be called to a given point, whether for the plaintiff or defendant; but a party to the suit cannot be so excluded.</p>

<p>Negligence — Evidence.</p> <p>A party-will not be permitted to put a fact in issue by his pleading, testify to it, and then reply to his opponent, who seeks to rebut it, that it is immaterial. State v. Sargent, 32 Me. 429; E/ildéburn v. Curran, 65 Penn. St. 59.</p> <p>So held, in a negligence case, where the plaintiff alleged in his'declaration that he was in the performance of his duty, in oiling a buzz-saw, when injured, and on the trial testified that in a conversation with the foreman of the mill he told him to go and oil the saw, and the foreman testified that the plaintiff was under his instructions, without which he had nothing to do with the saw, which, under a rule of the mill, should not be oiled when in motion, and, was then asked by the defendant’s counsel if he had the conversation testified to by plaintiff, which proposed testimony was excluded, as immaterial, on ■ plaintiff’s objection, which ruling is held erroneous.</p>

<p>Corporations — Service of process.</p> <p>Since the passage of Act No. 242, Laws of 1887, service of process may be made upon the proper officers of a corporation in the county where the plaintiff resides, although its business office ' is located in another county; the Legislature intending to place corporations upon the same footing as individuals as regards service of process against them.</p>

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

(Reilly, J.) Appeal from allowance to guardian for maintenance, etc,, of an insane person. The facts are stated in the opinion.

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

(Dickerman, J.) Attachment proceedings under labor-lien law. Defendant shingle owners bring error. The facts are ' stated in the opinion.

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

<p>Appeal from Shiawassee. (Newton, J.)</p> <p>Bill for an accounting, etc. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Payment of judgment — Reversal on error — Recovery of amount paid.</p> <p>Money paid upon a judgment, under threat of execution levy,- which is afterwards reversed on error, is recoverable back from the party receiving it and appropriating it to his own use.</p> <p>So held, where a judgment was obtained on a guardian’s bond, and the attorney who represented the judge of probate in the suit, before the removal of the judgment to the Supreme Court, went to the surety on the bond, and threatened to levy on his property unless the surety paid a debt due on the purchase of a piano by the attorney, as he claimed for the ward, but which sale was made to him absolutely; whereupon the surety paid the debt, and gave the attorney his note for the balance of the judgment, which the attorney discounted on his personal account, and which the surety paid, and on the reversal of the judgment sued the attorney to recover back the money paid.</p>

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

Mandamus. Belator applied for mandamus to compel tbe vacation of an order granting a new trial. The facts are stated in the opinion.

<p>Error to Houghton. (Williams, J.j</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Fire insurance — Authority of agent — Restrictions in policy— Estoppel.</p> <p>1. A restriction in an insurance policy upon an agent’s authority cannot be construed to refer to his acts or knowledge prior to the delivery of the policy.</p> <p>3. Where an insurance agent, authorized to solicit applications and deliver policies, which applications contain no restriction upon his authority as agent, is informed by an applicant that the property proposed to be insured has been sold on a land contract, and that the insurance is designed for the protection of both vendor and vendee, and fails to state such facts in the application, which he prepares, and the policy is issued and delivered to the assured as sole owner, pursuant to the application, the agent acts as agent for the company in taking such application, and his information is deemed that of the company, which cannot avoid the policy under a forfeiture clause to become operative in case of erroneous representations by the-assured, or a failure to make known any fact pertaining to the risk. Ins. Co. v. Olmstead, 21 Mich. 246, 252; Ins. Co. v. Throop, 22 Id. 159, 160; Kitchen v. Ins. Co., 57 Id. 144, 145; Brown v. Ins. Co., 65 Id. 306; Baker v. Ins. Co., 70 Id. 199; Temmink v. Ins. Co., 72 Id. 388; Copeland v. Ins. Co., 77 Id. 554.</p>

<p>Findings of fact — Contract—Construction—Power of attorney.</p> <p>1. The findings of fact by the court below are conclusive in this Court, and will not be reviewed except to determine whether there is any evidence to support them.</p> <p>'2. When parties have reduced their contract to writing, courts will construe it according to the intention therein expressed, when that intention is clear upon its face. Only in cases of ambiguity in the terms of written contracts will courts resort to extraneous evidence to determine the intention of the parties.</p> <p>3. A power of attorney, coupled with an interest, cannot be revoked without payment of the compensation agreed upon.</p>

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

<p>Replevin — Waiver of return by defendants — Judgment for value.</p> <p>Where a plaintiff uses a writ of replevin to obtain possession of property, to which he fails to establish his right of possession or title, the defendant, upon showing his ownership of the property, has his election to take a return, or waive it and take a judgment for the value of the property taken.</p> <p>So held, where, under a writ of replevin from justice’s court, the officer seised goods similar in character and description to those described in his writ, but not the identical goods mentioned in the writ, and in the bill of sale under which plaintiff claimed, which latter goods plaintiff had demanded of defendant, who had refused to surrender them to plaintiff; and it is. held that if the wrong property was taken it was plaintiff’s-fault, it being his duty to point out the property to the officer,, and to know, when it was turned over to him, whether it was the property which he was seeking to gain possession of.</p>

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

<p>Error to Wayne. (G-artner, J.)</p> <p>Assumpsit. Defendant Thomas 0. Bullock brings error.</p> <p>The facts are stated in the opinion.</p>

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

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

<p>Appeal from Wayne. (Reilly, J.)</p> <p>Bill for partnership accounting, injunction, etc.</p>

<p>Townships — Authority to issue bonds — Bona fide holder — Estoppel, of township — Ratification of void act.</p> <p>1. Neither the townships of this State nor their officers have any power to borrow money, or to issue bonds, except as that power is conferred by the Legislature.</p> <p>So held, where a township board took up township orders, payable on presentation, and issued in lieu thereof a seven-year bond, drawing ten per cent, interest, which action was not authorized by any existing statute.</p> <p>2. Where a township bond does not show, upon its face, any authority upon the part of the township to issue it, the doctrine of bona fide holder does not apply, but the holder takes it subject to the defense of entire illegality.</p> <p>3. A municipal corporation cannot ratify or be estopped by an act void in its inception, and wholly ultra vires. Commissioners v. Van Busan, 40 Mich. 429.</p> <p>4. The following propositions are summarized from the opinion of Mr. Justice Grant:</p> <p>a — Corporate powers involving the imposing of public burdens must be strictly construed. 1 Dill. Mun. Cor. §§ 507-509; Starin v. Town of Genoa, 23 N. Y. 439; Police Jury v. Britton, 15 Wall. 566; Game v. City of Clarksville, 5 Dill. 165.</p> <p>b — Courts have held that when the power is shown in a municipal corporation to issue bonds, but there are irregularities in their execution, such corporation may be estopped to deny that the power was properly executed. Rogers v. Burlington, 3 Wall. 654.</p>

<p>Error to superior court of Grand Rapids. (Burlingame, J.)</p> <p>Ejectment. Plaintiffs bring error.</p> <p>The facts are stated in the opinion. ' .</p>

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

Mandamus. Relator applied for mandamus to compel the filing of articles of association under Act No. 187, Laws of 1875. The facts are stated in the opinion.

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

<p>Practice in circuit courts — Instruction as to amount of recovery— Justice's judgment — Appeal—Evidence.</p> <p>1. Where upon the testimony in a case, if the plaintiff is entitled to recover at all, the amount of such recovery is a sum certain, it is not error for the court to so instruct the jury.</p> <p>2. A justice’s judgment which is appealed from is not evidence of what the plaintiff claims on the trial of the appeal.</p> <p>[No authorities cited by counsel. — Reporter.]</p>

<p>Criminal law — Carrying concealed weapons — Exception in enacting clause of statute — Pleading and, proof.</p> <p>In a prosecution for a violation of Act No. 129, Laws of 1887, prohibiting the carrying of concealed weapons by any person “except officers of the peace and night-watches,” it is necessary to negative the exception in the pleading, and by proof on the trial, to warrant a conviction. People v. Telford, 56 Mich. 541; People v. Phippin, 70 Id. 6.</p>

•Error to Van Burén. (Buck, J.) Respondents were convicted of burglary on their plea of guilty, and sentenced to State prison for the term of three years and six months, and remanded to jail to await the execution of such sentence; after which they broke jail, and were recaptured, whereupon the sentence was vacated and a heavier one imposed, which is set aside, and the original one stands in full force.

Habeas corpus. Petitioner was convicted of burglary in the Van Burén circuit, and-sentenced to State prison for seven years. The facts are stated in the opinion.

<p>Negligence — Highways—Right of cattle to run at large therein— Contributory negligence of owner — Railroad companies— ' Speed of train.</p> <p>1. In turning his cattle at large in the public .highway near- a railroad crossing, without a keeper, the owner is guilty of contributory negligence</p> <p>So held, where the railroad company had complied with the provisions of the statute in regard to fencing its road, and in constructing said crossing with due regard to the safety of persons passing over it, and provided its engines with the proper appliances, and plaintiff’s ox was killed while attempting to cross in front of a train, and because the engineer could not check the speed of the train in time to avoid the accident,' after he saw the danger.</p> <p>2. The following propositions are summarized from the opinion of Mr. Justice Grant:</p> <p>a — By the common law, every person must keep his animals^ upon his own premises. He may use the highway for the purpose of driving them from place to place, but not for a public pasture. He may pasture in the highway opposite his own premises, but not opposite those of others, even though the-cattle are in charge of a keeper. Oampau v. Konan, 39 Mich. 362; Bertwhistle v. Goodrich, 53 Id. 457.</p> <p>b — It was doubted by this Court, in Oampau v. Konan, 39' Mich. 362, whether authority could be conferred upon the board of supervisors to permit beasts to run at large upon public highways; and a similar provision was held unconstitutional in Railroad Co. v. Hunger, 5 Denio, 255.</p> <p>c — A railroad company which has complied with the provisions of the statute in regard to fencing its road, and in constructing highway crossings with due regard to the safety of persons and property passing over them, and has provided its engines with the proper appliances, is entitled to the use of its road for the passage of trains at all times, to increase the speed of its regular trains when behind time, and to run special or wild trains whenever its business requires.</p> <p>d — The business of the country demands of railroads rapid transit, both for persons and property. It has nowhere been held that a speed of even 60 miles an hour is negligence, when a train is running through the country outside of villages and cities, or through a sparsely settled community.</p> <p>e — Railroad companies are not required to slacken the speed of their trains at the numerous highway crossings in the country which they are usually passing every few minutes, nor when cattle are in the highway near the track. Only when the engineer, in the exercise of due care and caution, sees danger, is he required to slacken speed. He is then bound, from regard for the rights of all parties concerned, to take all proper steps to avoid danger. But in such a case his first duty is for the safety of his passengers, and it is held that, when he cannot stop his train before striking the cattle, he is justified in running at a high rate of speed, if in so doing there is less danger of derailing his train, though the result is to render the escape of the cattle more difficult. 1 Thomp. Neg. 506, and cases cited.</p> <p>/ — It has been held that not only has the owner of cattle running at large in the highway no recourse against a railroad company for the loss of his property, but that he is liable for damage resulting to the company or its passengers. Railroad Co. v. Skinner, 19 Penn. St. 303; Bennett v. Railroad Co., 19 "Wis. 148; Railway Co. v. Goss, 17 Id. 433.</p> <p>g — In the case of Railroad Co, v. Ballard, 2 Mete. (Ky.) 177, it was held that a peculiar obligation devolved upon the owner of cattle to keep them off the tracks of railways, and that there could he no recovery unless the conduct of the company was shown to have been reckless, wanton, and willful.</p> <p>h — A man who permits his dumb beasts to roam at large, where it is highly probable, if not inevitable, that they will run into dangerous places, ought to be judged by the same rule as when he places himself in the presence of danger, and thereby suffers injury, which his own prudence might have avoided.</p>

Mandamus. Relators applied for mandamus to vacate an order striking a case from - tbe trial docket. The facts are stated in the opinion.

(Williams, J.) Bill-to annul certain school taxes, and to enjoin their collection, etc. The facts are stated in the opinion.

<p>Appeal from Genesee. (Newton, J.)</p> <p>Bill in" aid of execution. Defendants appeal.</p> <p>'The facts are stated in the opinion.</p>

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

Exceptions before judgment from recorder’s court of Detroit. (Gartner, J., presiding). Respondent was convicted of uttering a forged deed. Conviction affirmed. The facts are stated in the oninion.

Error and certiorari to Bay. Respondents were convicted, upon tbeir plea of guilty, of burglary, and sentenced to 20 years’ imprisonment in State prison. The facts are stated in the opinion, and in head-note 1.

(Chambers, J.) Bespondent was convicted of carnally knowing and abusing a girl under the age of fourteen years, and sentenced to State prison for fifteen years. The facts are stated in the opinion.

<p>Real-estate broker — -Commissions.</p> <p>1. Where, in a suit for commissions oh the sale of real estate, there is some conflict of testimony as to plaintiff’s having any real agency in bringing the vendor and purchaser into relations of dealing, an instruction, in substance, that plaintiff cannot recover unless he procured a customer ready and willing to enter into a contract on the vendor’s terms, whether those which were originally fixed or such as he might find acceptable, is not inapplicable.</p> <p>2. Where in such a case the defendant admits that plaintiff was instrumental in securing an arrangement for the sale of a certain parcel of real estate, but disputes the extent and value of his services, the court is not justified in allowing the jury to find a verdict of no cause of action as to that parcel.</p>

(Hart, J.) Complainant, as guardian of an alleged incompetent person, filed a bill to compel the transfer to him of a mortgage executed to defendant for the use and benefit of the ward. Defendant appeals. The facts are stated in the opinion.

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

Mandamus. Relator applied for mandamus to compel the dissolution of an injunction, etc. - The facts are stated in the opinion.

Mandamus. Delator applied for mandamus to vacate an order granting a widow an allowance under the statute. The facts are stated in the opinion.

<p>Transfer of cause — Substitution of attorney — Mandamus.</p> <p>1. Attorneys have no right to interfere in the conduct or management of a cause, upon a claim of substitution, until notice thereof has been served upon the attorneys of record for the opposite party in a proper manner. Comfort v. Stoclcbridge, 88 Mich. 842.</p> <p>2. Affirmative proof should be made on the hearing of an application for the transfer of a suit, under How. Stat. § 6495, that the judge of the circuit to which the case is transferred is not disqualified to sit under the provisions of said section.</p> <p>3. It was not intended that the statute for the transfer of cases should be used as an instrument of oppression and hardship, or for the express purpose of one party choosing the particular forum in which to carry on his litigation, to the detriment of his opponent.</p> <p>4. Where the proceedings for the transfer of a cause are plainly in fraud of the statute, the judge has discretion and authority to deny the application, which he should exercise when the hardship to the opposing party is apparent.</p> <p>So held, where application was made for the transfer of a suit pending in Alpena county, where most of the witnesses resided, to the county of Saginaw, where the substituted attorneys of record for the applicant resided, who signed the application as such attorneys, but had nothing to do with the aftef proceedings, which were conducted by the original attorney of record, 'in their names, who procured the affidavits in support of the application, which were sworn to six days before said substitution. It further appeared that the cost of taking witnesses to Saginaw county would be expensive and burdensome, while the county-seats of Alcona and Iosco counties were easily accessible from Alpena county by rail; and the proceeding is held to be so plainly in fraud of the statute, and its use so clearly for the purpose of taking the case to Saginaw, that it ought not to be permitted.</p> <p>5. For late cases construing the statute for the transfer of causes, see Stimson v. Shingle Company, 71 Mich. 874; Pack v. Circuit Judge, 74 Id. 28; Curtis v. Wilcox, Id. 69; Fellows v. Canney, 75 Id. 445.</p>

(Palmer, J.) Bill to enjoin a statutory foreclosure, to annul the mortgage and certain tax deeds covering the mortgaged premises, etc. Complainant appeals.

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

<p>Bills and notes — Consideration—Evidence—Practice in circuit courts —Entry of default — Want of affidavit — Appeal.</p> <p>1. A bargain for the sale of personal property was consummated by the vendor upon.the expectancy that a brother of the vendee would sign his note, given for a part of the purchase price, of which fact the brother had notice, having been asked by the vendee if he would sign the paper, and, while not agreeing to do so, having answered “that he would see about it,” After the note was signed by the vendee, the vendor took it to the brother, and asked him to sign it, saying, “ I suppose your brother spoke to you about this,” and the brother signed the note without making any answer; and it is held that there was a sufficient consideration for such signing, and that it was immaterial as affecting his liability on the note whether he signed it before or after the delivery of the property, and that, if necessary to give effect to his engagement, he will be considered as having placed his name on the note at the time it bears date. Moies v. Bird, 11 Mass. 436, 439; Bobbins v. Brooks, 42 Mich. 62.</p> <p>2. The Court will take judicial notice of the failure of a defendant to plead, and the entry of his default without filing an affidavit showing such failure cannot be taken advantage of on error. Leonard v. Woodward, 34 Mich. 514.</p> <p>8. Eour joint defendants, in a suit upon a promissory note, appeared generally by the same attorneys. Three of the defendants did not plead, and the fourth defended the suit alone. On the trial a judgment was rendered against all of the defendants, the default of one of whom in not pleading, although due for six months at time of trial, had not been entered. No objection was made on account of such non-default until the case was ready to be submitted to the jury; and it is held that such default should have been entered nunc pro tunc, and will be so entered by the appellate court, to save the verdict and judgment, under How. Stat. § 7636.</p> <p>4. The reliance of a .vendor upon the signature of a third party, who signs the vendee’s purchase-price note as a surety or joint maker, and without which signature the vendor would not have parted with his property, is a sufficient consideration for such signing, even if made at the sole request of the vendor.1</p> <p>5. Where in a suit upon a promissory note given by a vendee for the purchase price of the property, and signed by three other defendants as joint makers, one of the questions at issue was whether the signature of one of .said three defendants was obtained prior to the delivery of the note and property, evidence is admissible of what took place between the vendor and vendee at the time the note was made, and of the arrangement as to who should sign it, as bearing upon the probabilities of the transaction.</p>

<p>Case made from. Ottawa. (Arnold, J.)</p> <p>Assumpsit. Plaintiff assigns error.</p> <p>The Jacts are stated in the opinion.</p>

<p>Error to Wayne. (Brevoort, J.)</p> <p>Case for libel. Plaintiff brings error.</p> <p>The facts are stated in the opinion, and in 66 Mich. 307.</p>

Exceptions before judgment from Hillsdale. (Lane, J.) ■ Respondent was convicted of engaging in the business of selling liquor without having complied with the provisions of the law of 1887. The facts are stated in the opinion.

Exceptions before judgment from Gratiot. (Hart, J.) Eespondent was convicted of engaging in the business of selling liquor without having complied with the provisions-of the law of 1887. The facts are stated in the opinion.

Fraudulent conveyances — Bona fide indebtedness. This case involves the question of the validity of a deed as to creditors, and the decree below, declaring that it .stand as security for the amount found due the grantee, is affirmed. Questions of fact are alone involved. Appeal from Ionia. (Smith, J.) Bill in aid of execution. Appeal from decree declaring deed security for sum due the grantee. The facts are stated in the opinion.

<p>Trespass — lAaense to out timber — Revocation—Legal advice.</p> <p>1. A verbal permission by one tenant in common of land to cut timber therefrom is a mere naked, non-assignable license, which is revoked by the licensor forbidding the licensee to cut the timber, or by his executing a quitclaim deed, without reservation, to his co-tenant.</p> <p>2. Where a person deliberately trespasses upon land by cutting timber therefrom, with full knowledge of all of the facts making such acts a trespass, and against the warning of the landowner, he will not be permitted to testify, in a suit for such trespass, to what legal advice he had received, and what his own belief was as to his legal right to enter upon the land.</p>

(Moore, J.) Debt to collect penalty for failure to provide a residence crossing under Act No. 165, Iiaws of 1889. Defend.ant brings error. The facts are stated in the opinion.

(Newton, J.) Respondents were convicted of conspiring to falsely accuse another of crime. The facts are stated in the opinion.

(Buck, J.) Replevin. Defendant brings error. The facts are stated in the opinion, and in the former report •of -the case.

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

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

<p>Error to Monroe. (Kinne, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion of Mr. Justice Morsb, reported in 65 Mich. 31.</p>

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

<p>Appeal from Monroe. (Kinne, J.)</p> <p>Bill to set aside two alleged mortgages, etc. Complainants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Release of dower — Fraudulent procurement of Partition suit.</p> <p>1. In this case a release of dower from a wife to her husband is held to have been secured through an unconscionable arrangement, and is declared void, and the case is remanded, to be treated the same as any other suit brought by a widow to enforce her dower rights in lands owned by her husband at time of his death; and the lower court is directed to proceed in the case in accordance with the course of equity applicable in such cases.</p> <p>H. The following propositions are summarized from the opinion of Mr. Justice Campbell:</p> <p>a — There is no legal objection to a fair and voluntary arrangement between husband and wife, for a fair consideration, to extinguish her right of dower; citing Randall v. Randall, 37 Mich. 563; Rhoades v. Davis, 51 Id. 306.</p> <p>b — If a wife is defrauded, or improperly persuaded into an arrangement for the extinguishment of her dower by any fraud or device of her husband, she is entitled to full and adequate redress; and, if difficulties are raised in securing it, he or his estate — inasmuch as his heirs or devisees cannot be regarded as bona fide purchasers — must bear the risks.</p> <p>c — An arrangement between a husband and wife by which she releases her dower rights in consideration of the conveyanee to her oí a parcel of land, which, whether to be received then or at his death, is of very small value, compared with her prospective dower, at the lowest price put upon her husband’s lands, and which leaves him at liberty to make a will giving her nothing further out of the estate, — she receiving no contract or assurance of receiving anything further, — is unconscionable.</p> <p>d — -No court can set a probated will aside, or change its provisions.</p> <p>e — The circuit court cannot go into a general overhauling of an estate in a partition suit.</p> <p>/ — A partition of dower must be such as to give the widow a clean third for life of all the lands subject to dower, and cannot be mixed up with personal accountings, which, if entered into at all, belonged to the administration, and not to partition, usually, if at all.</p>

<p>Estates of deceased persons — Statute of limitations — “ Mutual and open account current” defined.</p> <p>1. The statute of limitations (How. Stat. § 8717), which excepts certain accounts from its operation, is confined to such as make “a mutual and open account current.” It must be mutual as well as open.</p> <p>2. A “mutual and open account current” means a course of dealing where each party furnishes credit to the other on the reliance that upon settlement the accounts will be allowed, so that one will reduce the balance due on the other. Buswell, Lim. chap. 4, § 5; Kimball v. Kimball, 16 Mich. 218; Campbell v. White, 22 Id. 178; White v. Campbell, 25 Id. 463, and notes; Sperry v. Moore's Estate,' 42 Id. 354.</p>

<p>Appeal from Lenawee. (Loveridge, J., presiding.)</p> <p>Bill to compel the specific performance of a devise of lands. Complainant appeals from decree dismissing her bill.</p> <p>The facts are stated in tbe opinion.</p>

Mandamus. Eelator applied for mandamus to compel respondent to set ‘aside a judgment of nonsuit, etc. The facts are .stated in the opinion.

(Lane, J.) Statutory action for encroachment of fence upon highway. Plaintiff brings error. The facts are stated in the opinion.

<p>Error to Monroe. (Kinne, J.)</p> <p>Negligence case. Defendant brings error.'</p> <p>The facts are stated in the opinion.</p>

<p>Interest — Verbal agreement for reduction of rate.</p> <p>A verbal agreement for a reduction of the rate of interest stipulated for in a written instrument is invalid. Swift v. Barber, 28 Mich. 505.</p>

(Hosmer, J.) Argued January 31, 1890. Bill for correction of description in a land contract, and for execution of deed, etc. Complainant appeals. The facts are stated in the opinion.

<p>•Chattel mortgages — Fraudulent preferences — Bills and notes — Evidence — Garnishment.</p> <p>1. Mortgages executed by a debtor to a trustee for the benefit of certain specified creditors, and which are evidently an assignment of all of his property with intent to prefer the beneficiaries, are void as to the unsem/red creditors. Kendall v. Bishop, 76 Mich. 634.1</p> <p>'2. A payee, while retaining the possession of a note which he has indorsed in blank, has the right to bring suit thereon in his own name. Kerrich v. Stevens, 58 Mich. 297.</p> <p>3. Judgment creditors of the payee in a note, in whom the legal title is vested by a blank indorsement and delivery, and by his agreement to apply its proceeds, when collected, upon the judgment, have the right to allow him to bring suit in his own name on the note.</p> <p>4. A debtor mortgaged all of his property to a trustee for the benefit of certain specified creditors, it being verbally understood that the trustee was to take possession of and sell the property, and distribute the proceeds pro rata among the beneficiaries. After taking possession and commencing such sale, a portion of the property was sold by the trustee to four of the beneficiaries at an appraised value, who gave him their promissory note in payment, payable to his order. Before the execution of this note and the delivery of the property the trustee was garnished at the suit of certain unsemred creditors in the United States court, who recovered a special verdict, reciting the trustee’s possession of the property so sold at the time of the service of the garnishee process, and that it was then the property of the mortgagor and principal defendant. A judgment was entered upon the verdict, ordering the trustee to turn over this property to the United States marshal, and upon his refusal to do so the court ordered an execution to be issued against the trustee’s estate, under the statute. The trustee thereupon indorsed the note received on said sale to the judgment creditors in blank, and delivered it to them, receiving a receipt for the note, which was to apply, when collected, on the judgment; it being agreed that the judgment creditors were to use their utmost endeavors to collect the note, and that proceedings upon the execution should be stayed until all reasonable means for such collection were exhausted. The trustee brought suit on the note in his own name by consent of the judgment creditors, and on the trial the foregoing facts appeared, and a verdict was directed for the defendants, on the ground that the trustee could not collect the note in full from them, and appropriate the proceeds to the payment of the. garnishee judgment; on reversing which it is held that the judgment was in substance one against the identical property sold the defendants, which was not transferred to them until after the writ of garnishment was served, and had, as it were, taken hold of said property, which was a sufficient consideration for the note, and that upon the facts stated a verdict should have been directed for the plaintiff.</p> <p>5. Where certain of the beneficiaries named in a trust mortgage purchased a portion of the mortgaged goods, and gave the trustee their promissory note for the purchase price, they cannot show, as a defense in a suit upon the note, an oral contemporaneous understanding with the trustee that it was anticipated that the remaining goods would produce enough to pay the other beneficiaries in full, and, if so, payment of the note was not to be enforced, but, if there was a deficiency, defendants were to pay enough on the note to enable the trustee to make a pro rata payment to the other beneficiaries.</p>

<p>Appeal from recorder’s court of Detroit. (Chambers, J.)</p> <p>Street-opening case. Respondents appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Railroad companies — Contributory negligence — Directing verdict.</p> <p>The sole question, involved in this case is the correctness of the ruling of the trial court in directing a verdict on the ground that plaintiff was guilty of contributory negligence; and it is held that the inference is conclusive that the exercise of even slight care on .the part of the plaintiff would have enabled him to avoid the accident, and the judgment is affirmed.</p>

<p>Sills and notes — Charge to jury — Evidence.</p> <p>1. It is error to instruct the jury that in case of a recovery it must be for the full amount claimed by the plaintiff, when there is proof of a much smaller consideration for the contract sued upon.</p> <p>2. Proof that a lightning rod was such as was usually made or furnished by a certain person has no tendency to prove that it was put on the defendant’s house by that person or not paid for.</p>

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

Mandamus. Relators apply for mandarmts to compel action under Act No. 449, Local Acts of 1889, providing for the creation of two new wards in the city of Grand Rapids. The facts are stated in the opinion.

Exceptions before judgment from Menominee. (Steere, J.) Respondent was convicted of keeping a house of ill fame. The facts are stated in the opinion.

Mandamus. Relator applies for mandamus to compel the recall of indictment from the. recorder's court of Detroit. The facts are stated in the opinion.

<p>■Contracts — Construction of buildings — Payment—Condition precedent — Certificate of architect — Waiver—Acceptance of benefits.</p> <p>1. Plaintiffs contracted in writing to plaster five houses for the defendant, according to plans and specifications furnished by-designated architects, which were made a part of the contract. Payments were to be made as the wort progressed upon the architects’ certificates, and the balance due was to be paid on the completion of the job, and its acceptance by the architects and owner, upon the certificate of the architects showing such performance and acceptance. Plaintiffs, without procuring any of such certificates, and without their waiver by the defendant, brought suit to recover the balance claimed to be due on the contract, and it is held that his failure to obtain such certificates, and to complete the work to the satisfaction of the architects, is a complete defense to such suit, no fraud on the part of the architects or collusion with the owner being shown.</p> <p>'2. The following propositions are summarized from the opinion of Chief Justice Chahplin:</p> <p>a — Where a party fails to comply substantially with a nonapportionable agreement, he cannot sue or recover upon it at all. But when anything has been done from which the other party has received substantial benefit, a recovery may be had on the quantum meruit, the basis of which is not the original contract, but a new and implied agreement deducible from the delivery and acceptance of some valuable service or thing. Allen v. McKibbin, 5 Mich. 454.</p> <p>b — The principles laid down in Allen v. McKibbin, 5 Mich. 454, do not apply to cases where the parties have by their agreement made some act or fact a condition precedent to payment, unless the other party has waived the condition, which waiver may be express, or implied from facts and circumstances, as where the party relying upon the condition has accepted or appropriated the property or fruits of the labor of the other party.</p> <p>c — When a person contracts with another to erect, or to do some portion of the work in constructing, buildings upon real estate, his taking possession after the contractor has left the premises cannot be construed as an unequivocal acceptance of the work, but the most that can be said is that such act, and all of the circumstances, may be taken into consideration in determining whether there is an implied waiver of a condition precedent to such acceptance.</p> <p>[The points of counsel and authorities will be found in the opinion. — Reporter,.]</p>

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

<p>.Estates of deceased persons — Sale of real estate — License—Evidence —Fraud—Laches—Statute of limitations.</p> <p>1. A husband died in 1851, willing to his wife one-third of his estate for her natural life, and the remainder to his four children. The widow acted as executrix until her marriage, when she resigned, and the administr ition of the estate was completed by her co-executor. In 18)4, one-third of the remaining estate, a sale having been made of certain lands to pay debts, was set off to the widow. In 1855, the executors petitioned for license to sell sufficient of the real estate to pay debts and •expenses of administration. The petition was sufficient to ■confer jurisdiction, and referred to the account of the widow for the care and maintenance of the minor children of the deceased, which was submitted for examination and determination. All of the remaining steps were regular, and the oath, bond, and report of sale of the executors recited the granting of an order or license to sell. Among the bidders at the sale was the widow, to whom six acres of land were sold at its then fair value, and the usual executor’s deed was executed to her, containing the same recitals. She immediately fenced the land, and held exclusive and adverse possession thereof until her death, in 1887.</p> <p>In August, 1856, the executors’ final account was allowed, one item of which was for the payment to the widow of the Account hereinbefore referred to. Partition was then made of the remaining estate among the heirs. In 1860, the widow quitclaimed the six acres to her sister, without consideration, and in 1872 her sister reconveyed it to her by the same kind of a deed, also without consideration.</p> <p>Soon after the widow’s death, two of the heirs, who were • children of the husband by a former wife, quitclaimed an undivided half of their interest in the land, in consideration that the grantee should institute legal proceeding for its recovery; whereupon the second husband, to whom the widow had devised the land, filed a bill to quiet his title. On the hearing of this suit the sale to the widow was attacked as illegal, •because,—</p> <p>a — No license to sell was found in the probate court records.</p> <p>b — The proceedings to sell were fraudulently instituted, and the widow fraudulently concealed her title, and misrepresented the character of her possession.</p> <p>c — At the time of such sale she was guardian of her and the-testator’s minor daughter.</p> <p>The testimony taken on the hearing showed that, during the-years when the estate was being administered, the probate records were carelessly kept, and that the papers relating to-the estate in question were fastened together with ordinary pins, which had often been removed and replaced. A blank space was found in the record book at the place where the order or license to sell, if granted, would naturally have been recorded, large enough for that purpose. Testimony was also-introduced of the statements of the widow to the effect that she was going to use the land as long as she lived, and then it. would go to the heirs. The executors and judge of probate-were all dead at the time of the hearing.</p> <p>In passing upon the case the Court held:</p> <p>a — The recitals in the oath, bond, report of sale, and deed, in the absence of testimony to the contrary, are conclusive-proof of the granting of the order or license to sell.</p> <p>b — -As against the living, proof of fraud must be clear and convincing. But when charges of corrupt, fraudulent, and criminal conduct are made against the dead, who have occupied positions of trust, and whose acts have been authorized and confirmed by a court oí competent jurisdiction, the proof must be so clear and convincing as to satisfy every reasonable-mind.</p> <p>c — The statement in the petition that the executors submitted the account of the widow for the board and maintenance of' the minor children did not void the proceedings, nor is it any evidence of fraud (Norman v. Olney, 64 Mich. 553), but, on the contrary, shows the intention of the executors to submit all matters to the court.</p> <p>d — The statements of the widow, if made, fail to sustain the claim that she concealed the character of her title and possession from the heirs, or that she made any false representations in that regard; and if they rested upon the supposition or belief that somehow, at her death, the land would revert or be given to them, the record fails to show that the widow was. responsible for it.</p> <p>e-No one but the minor daughter, as to whom, alone, the widow held fiduciary relations at time of the sale, can question the deed on the ground that she was then her guardian. Besides, such deeds are not absolutely void, and long acquiescence, with a full knowledge of the situation, amounts to a ratification, and bars the right to recover.</p> <p>/ — How. Stat. § 6074, which bars any action for the recovery of any estate sold by an executor, by any heir or other person claiming under the testator or interstate, unless commenced in five years next after the sale, defeats the claim of the defendants; and this would be true, even if the petition and license had been for a sale to pay for the care and maintenance of the minor children; citing Toll v. Wright, 37 Mich. 93.</p> <p>2. The following propositions are summarized from the opinion of Mr. Justice Grant:</p> <p>a — The recording of an executor’s license to sell real estate is not a prerequisite to the sale, nor is its record at any stage of the proceedings necessary to sustain the jurisdiction of the court.</p> <p>b — -When an executor’s order for the sale of real estate has been lost or destroyed without the fault of those claiming title under the sale, its existence may be shown by any competent testimony.</p> <p>c — Courts have uniformly recognized the fact that the records' in probate courts are often carelessly and imperfectly kept, and have uniformly refused to set aside titles of long standing on account of defects in the record.</p> <p>d — How. Stat. § 6076, makes executor’s deeds prima facie evidence of the regularity of all the anterior proceedings after a possession of ten years thereunder.</p> <p>e — The truth or falsity of the averments in an executor’s petition for license to sell real estate is for the determination of the probate court; and it will be presumed that the judge performed his duty, and after a full hearing determined that there were debts and expenses of administration to pay, and that it was necessary to sell real estate to pay them.</p> <p>/ — The sufficiency of the testimony adduced in probate court, and of which no record is kept, to sustain the order or decree made, will not be determined by other courts, except on appeal.</p>

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

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

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