Volume 80 — Michigan Reports

<p>Principal and surety — Bills and notes — Pleading—Fraud—False representations — Trustees—Banks and banking — Evidence.‡</p> <p>1. A lumbering corporation mortgaged all of its property to secure certain creditors, among whom was a bank of which the mortgagee was president, which had discounted the mortgagor’s notes. Among such notes were two given in renewal of paper made in payment for goods, and which the payees had indorsed in such a manner as to become sureties for the maker, and upon which they had received full payment. The mortgagee disposed of the property, and paid all of the claims in full except said discounted paper, and held the balance for pro rata distribution. Before such partial payment was indorsed, the bank sued the corporation and indorsprs upon the two notes, in which suit the indorsers gave notice that they would show that the credit for the goods sold the corporation was secured through the representations of the president of the bank as to the solvency of the corporation, and that if they would sell the goods the bank would discount the corporation’s notes given therefor, and that the vendors should not be liable on their indorsements of such notes; that at this time the corporation was indebted to the bank, and it was agreed between it and the president of the ■ bank that such representations should be made, when in fact the corporation was insolvent, to the knowledge of said president. The suit was tried, and the bank recovered a judgment for the full amount of the notes, which the Supreme Court reversed, on the ground that the evidence showed that the mortgagee had collected sufficient money to pay all of the secured claims, of which sum enough was held by him in deposit in the bank to pay the notes in suit, and that it was the duty of the bank to make such application. See BanJc v. Qreenbaum, 74 Mich. 157.</p> <p>On a second trial the defendants added to their former notice a copy of the opinion of the Supreme Court, and also gave- notice that they would show that at the time of their indorsement of the notes in suit there was a fraudulent agreement between the bank and the corporation that the latter would turn over all of its property to the bank when asked so to do, or give security thereon, for its indebtedness to the bank, which agreement was concealed'from the defendants, as-also the fact of such indebtedness, a knowledge of either of which facts would have prevented them from taking or indorsing the notes in suit. The president of the bank (mortgagee) testified on such trial positively that the property did not Tealize enough to pay all of the secured debts, and that after paying all of said debts which had priority over said discounted paper he deposited the balance in the bank, and took certificates of deposit in his own name, but deferred applying the pro rata share applicable to the notes in suit until the validity of defendants’ indorsements was determined. The defendants recovered a general verdict, and on a second review of the case it is held that, if the mortgagee’s testimony was true, he was justified in not making- such pro rata distribution. And it is further held that if the defendants are not entitled to be discharged absolutely from all liability by reason of the fraud and deceit set up in their notices, which right it is held they have not maintained by legal and proper testimony, the proper method for them to pursue, if they believe' the trustee has not faithfully executed his trust, is to file a bill in chancery for an accounting, in which suit the whole matter of such execution can be gone into, and the trustee charged with all proper items. The bank can be made a co-defendant, and, upon a proper showing, the further prosecution of this suit can be enjoined until such accounting is completed."</p> <p>2. The following propositions are summarized from the opinion of Chief Justice Cbamplin:</p> <p>a — There is no practice authorizing a defendant to interpose a special notice of defense, setting forth the opinion of the Supreme Court on reversing a judgment recovered by the plaintiff on a former trial.</p> <p>b — Where, in a suit upon two promissory notes against indorsers, a judgment in favor of the plaintiff is reversed on the ground that the record shows that the notes have been paid, a judgment in favor of the defendants on a second trial will stand affirmed, unless the record discloses a different state of facts upon the question of such payment.</p> <p>c — It is not sufficient to show the making of representations .alleged to be false, but their falsity must be proved in order to charge the maker with actionable fraud.</p> <p>d — The* practice is settled in this State, as at common law, that it is not competent to prove distinct facts in defense that have not been made part of the issue as framed. Bourreseau ■v. Evening Journal Co., 63 Mich. 437.</p> <p>So held, where evidence of a different fraud than that set up in defendant’s notice was admitted by the trial court.</p> <p>e — The payees in certain notes sold them to a bank, and ■became sureties for the maker by the manner of their indorsement. At the request of the maker, and by the consent of the •sureties, the notes were renewed, on which renewal notes suit was brought, and the sureties (indorsers) claimed that they were induced to consent to the extension by the fraudulent representations of the holder of the notes as to the solvency of ■the maker, and that their second indorsement was void; and it is held that, if the renewal notes were invalid, the original notes remained in full force, upon which the indorsers were liable, and that their defense, if sustained, only went to a recoupment, under proper pleadings, to the extent of the injury actually suffered by reason of extending the time for payment.</p> <p>/ — Where, in a suit against indorsers their defense is non-liability because of fraud practiced in securing their indorsement, testimony which recognizes such liability, and seeks to establish a discharge by matters ex post facto, is inadmissible.</p> <p>g — Good faith and fair dealing is all that is required of a creditor in his transactions with a debtor who occupies the position of a surety to a contract, and these do not require the ■creditor to inform such surety of other and independent transactions with the principal debtor.</p> <p>h — To hold that, when an indorser of a note applies to have it discounted for his own accommodation, the silence of the bank as to other indebtedness of the maker to the bank, and ■of his assurance that he will give security if required, is a fraud upon the indorser, enabling him to retain the consideration received for the note, and discharge him from liability as indorser, is a doctrine too palpably absurd for serious consideration.</p> <p>i — To hold a bank as trustee, simply because its president and financial manager is a trustee for the benefit of creditors, would operate harshly and unjustly upon the rights of a majority of its stockholders, and make them responsible for acts which neither they nor the board of directors of the bank ever authorized or assented to, and would unjustly condemn them to losses concerning which they have never had a hearing in a court of justice.</p>

<p>Estates of deceased persons — Construction of foreign toill — Equitable conversion — Perpetuities.</p> <p>1. Under the provisions of How. Stat. § 5808, providing for granting letters testamentary on the proof of foreign wills, the estate must be disposed of in accordance with the directions contained in the will.</p> <p>2. In administration proceedings under a foreign will admitted to probate in this State, the construction placed upon it by the proper court of the state where the testator resided will be adopted by our courts, unless it can be clearly gathered from its terms that the testator had in mind the laws of this State, or used language necessarily referring and only appropriate to this State.</p> <p>8. Where a will' directs the testator to convert certain real estate in one state into rentable “inside” property in a specified city-in another state, as soon as practicable after the testator’s death, irrespective of all contingencies, an equitable conversion, of said real estate is effected by the terms of the will.</p> <p>4. Double conversion does not differ from single conversion, but the property is treated as if already converted into that species of property into which it is directed to be changed, no-matter whether the steps are more or less numerous.</p> <p>5. The object of How. Stat. § 5531, which prohibits the suspension-of the absolute power of alienation for a longer period than during the continuance of two lives in being at the creation of' the estate, was to prevent the accumulation of large landed, estates to be held in perpetuity, or for a long series of years, and said statute is not violated by the direction in a foreign will, admitted to probate in this State, that Michigan lands shall be sold, and the irrooeeds invested in lands in another state, there to be held for any number of lives,</p>

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

(Judkins, J.) Petition for payment of claim against an insolvent estate. Petitioner appeals. The facts, are stated in the opinion.

<p>Appeal from Bay. (Cobb, J.)</p> <p>Bill to restrain the construction of a street railway. ■Complainants appeal.</p> <p>The facts are stated in the opinion.</p>

(Peck, J.) Foreclosure case. Appeal from order setting aside a sale, and ordering a resale of the mortgaged premises. The facts are stated in the opinion.

<p>Common carriers — Contract—Loss by fire — Delivery of goods to-warehouseman.</p> <p>1. Acquiescence by consignees for a number of years in the delivery of freight by a common carrier to independent warehousemen, from whom they received it, as also notice of its arrival, and to whom they gave the necessary receipts, will relieve the carrier from liability for its safe-keeping upon its delivery to such warehousemen.</p> <p>2. The following general propositions are summarized from the opinion of Mr. Justice Long:</p> <p>a — At common law, a common carrier is responsible on implied contract for all loss of, or injury to, goods received for carriage, unless caused by the act of God or the public enemy or the fault of the owner.</p> <p>b — A common carrier may limit his liability for loss to his own line; citing Railroad Co. v. Bank, 20 Wis. 123; Irwin v. Railroad Co., 59 N. Y. 653; or he may by special contract extend such liability so as to cover a safe delivery at fhe place of destination; citing Railroad Co. v. Pratt, 22 Wall. 124; Noyes v. Railroad Co., 27 Vt. 110.</p> <p>c — In Michigan, in the absence of an express contract, or one fairly inferable from the nature of the business, the known necessities under which it is carried on, and the established, usage on the subject, a common carrier cannot relieve itself from'responsibility as such by depositing the goods in its warehouse at the end of its route; citing Buekley v. Railway Co., 18 Mich. 121; Peige v. Railroad Co., 62 Id. 1.</p> <p>d — U. S. Rev. Stat. § 4282, exempting vessel-owners from liability by reason of loss of or damage to goods by any fire happening to or on board of the vessel, is limited in its application to fires happening on ship-board</p> <p>e — As a general rule, by usage and common custom, railroad carriers may deliver freight at their depots, freight-houses, or stations, and be relieved of the burden of actual delivery at the place of business of the consignee, and of their common-law liabilities as common carriers, by notice to the consignee, and reasonable time thereafter to remove them. Persons delivering them goods to carry are supposed, in the absence of special contract, to understand such usage or custom, and to' contract with reference to it; citing Strong v. Railroad Co., 15 Mich. 306.</p> <p>/ — Before any custom can be admitted into the law, it must appear that the usage has been general and uniform, the custom peaceably acquiesced in, and not subject to contention and dispute, and it must be certain; citing Broom, Leg. Max. (5th Am. ed.) *838.</p>

<p>Easement — Diversion of water — User—Evidence.</p> <p>1. An action for consequential damages sustained by a land-owner by reason of the diversion of water onto his lands by the action of a drain commissioner in opening a tunnel and maintaining it as a public drain, which damage occurred some three years after such opening, cannot be maintained against a contractor who performed such work, no permanent damage being done to the freehold which the discontinuance of such flowage would riot remove.</p> <p>2. The right to discharge a drain upon the lands of another cannot be acquired by 20 years’ user, unless the drain be one and the same, and the use thereof uninterrupted during the whole period (Cotton v. Manufacturing Co., 13 Metc. 429); and the measure of such right is not the dimensions of the drain, but the quantity of water discharged upon said land.</p> <p>3. No one has the right, without redress, to flood the wild lands of another, or to add to the water upon them, because no present special damage can be shown.</p> <p>4. A drain commissioner cannot, under the law, in laying a public drain, empty water upon the lands of another that does’ not belong to him, without providing a proper outlet for its passage from his premises; and if he does so he is responsible for the consequent damages. Cubit v. O’Dett, 51 Mich. 351; Ashley v. Port Huron, 35 Id. 296.</p> <p>5. In a suit involving, as an issue, the consent of a land-owner to the diversion of water upon his lands, he may show all things done by him, or by others in his behalf, by way of protest or remonstrance against such diversion.</p> <p>[The points of counsel are stated in the opinion, where the authorities are discussed. — Reporter.]</p>

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

(Judkins, J.) Bill to remove cloud from title, and for an injunction. Defendant appeals. The facts are stated in the opinion.

<p>Appeal from Ingbam. (Smith, J., presiding.)</p> <p>Bill for an accounting, etc. Defendant appeals.</p>

<p>JEgiiity — JReformution of deed.</p> <p>In order to ascertain whether a mistake has been made in describ. ing property in a deed, it is essential to ascertain the intent of the parties — the one in selling, and the other in buying — as to the subject-matter of the sale; and if the deed fails to express that intent, there is a mistake which can be relieved against in equity.</p> <p>So held,, where the parcel of land offered for sale was fenced, and both parties were upon the ground and saw the inclosed land, which was described to the purchaser as two lots, — it having been so described in mortgages which the vendor had purchased, who had afterwards taken a deed containing a like description, — when in fact one-half of one of the lots was owned and occupied by an adjoining proprietor; and it is held that the mistake was mutual, and could be corrected in equity.</p>

<p>Appeal from Allegan. (Arnold, J.)</p> <p>Bill to remove cloud from title. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Mortgage — Indemnity for indorsement.</p> <p>In this case an executor filed a bill for the foreclosure of a mortgage found in the testator’s safe, and which the mortgagor claimed was given as indemnity for the indorsement of a note, which, after several renewals, was paid; and on an examination of the testimony the Court find in favor of the mortgagor’s claim, and affirm the decree dismissing the bill.</p>

<p>Error to superior court of Grand Rapids. (Burlingame, J-.'</p> <p>Negligence case. Defendant brings error.</p> <p>The facts are stated in the former opinion, in 62 Mich. 220.</p>

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

<p>Error to Muskegon. (Dickerman, J.)</p> <p>Assitmpsit. Defendants bring error.</p> <p>The facts are stated in the opinion, and in 68 Mich. 312.</p>

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

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

(Burch, J.) Bill to set aside orders of the probate court allowing the final account of the defendant Hughes as administrator, and for his discharge, and for an accounting with said administrator, and the payment of the balance found due by defendant Houseman, one of his sureties, and defendant Hodenpyl, the executor of the other surety. Complainants and defendant Hughes appeal from decree sustaining demurrers of Houseman and Hodenpyl, and overruling that of defendant Hughes.

Quo warranto. Information in nature of quo warranto to test the legality of the removal of the relator from the office of sheriff by the Governor, and' to oust the respondent, who was under-sheriff, and is acting as sheriff. The facts are stated in the opinion.

<p>Railroad companies — Permitting cattle to run at large — Contributory negligence.</p> <p>This case is ruled by Robinson v. Railroad Co., 79 Mich. 323, where the owner of cattle is held guilty of contributory negligence in turning them loose in a public highway, near a railroad crossing, without a keeper, the road being properly fenced, etc. In this case the cattle entered upon the grounds of the company at a place where it was not required to maintain a fence.</p>

Mandamus. Eelators applied for mandamus to compel the removal of a common-law assignment, and all proceedings thereunder, under How. Stat. §§ 6495-6502, providing for the transfer of causes, etc. The facts are stated, in the opinion.

Mandamus. Relator applied ior mandamus to compel respondent to Issue a warrant on the State treasury for $100, claimed to be due him as “war bounty” under Act No. 23, Laws of 1864. The facts are stated in the opinion.

Contempt proceedings. Relator applied for an order enforcing' an order of this Court directing respondent to allow relator to inspect the records and files in his office. The facts are stated in the opinion.

(Newton, J.) Bill to compel conveyance to complainant of 160 acres of land deeded to defendant by complainant’s husband, who afterwards conveyed it to her. Complainant appeals from decree declaring the latter .deed valid as to the homestead 40 acres, which decree is reversed, and a decree entered in this Court in accordance with the prayer of the bill. The facts are stated in the opinion.

(Canfield, J.) Certiorari to review the judgment of the circuit court of Macomb county, affirming the order of rhe probate court •construing a will. The facts are stated in the opinion.

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

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

<p>Error to Wayne. (Reilly, J.)</p> <p>Garnishment proceedings. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Certiorari to review proceedings for laying out a highway.</p> <p>The facts are stated in the opinion.</p>

(Arnold, J.) Bill to set aside certain foreclosure proceedings by advertisement, and for other relief. Complainants’ appeal from decree dismissing bill. The facts are stated in the opinion.

<p>Log-lien law — Common-law lien — Waiver—Contracts.</p> <p>1. The language of section 1, Act No. 229, Laws of 1887, giving any person who performs any labor or services in manufactur-' ing lumber a lien thereon for the amount due for such labor or services, is free from ambiguity, and gives such lien to the owner of a saw-mill who manufactures lumber under a sawing contract; and the fact that such mill-owner has a lien at common law is of no consequence in the face of this provision.</p> <p>2. The common-law lien of a mill owner upon lumber manufactured under a sawing contract is waived by the commencement of an attachment suit to enforce the statutory lien given him by Act No. 229, Laws of 1887.</p> <p>3. Kieldsen v. Wilson, 77 Mich. 45, in so far as it holds that Act No. 229, Laws of 1887, does not apply to the case of a contractor who performs no personal labor under the contract, is overruled, and the Court adheres to the rule laid down in Shaw v. Bradley, 59 Mich. 199.</p>

(Lane, J.) Bill to set aside a tax deed issued on a sale for drain taxes. Defendants appeal. The facts are stated in the opinion.

<p>Negligence — Driving in highivciy — Evidence.</p> <p>1. Where the plaintiff’s testimony in a negligence case shows that there was a clear space on a planked drive-way of at least 14 feet outside of that occupied by the plaintiff’s wagon in which the driver of defendant’s team-might have passed, leaving from 6 to 8 feet space between his load and the plaintiff, who was standing beside his wagon with his back towards such open space, — both parties having a right to be in such drive-way,— it is for the jury to say whether such driver exercised ordinary care and prudence in driving within 6 to 12 inches of plaintiff’s wagon, he at the time sitting on his load, consisting of from 4o to 50 bags of clover seed, and the hind wheel of his truck catching plaintiff’s foot and throwing him between the vehicles, and severely injuring both of his legs.</p> <p>2. In such a case the reputation of defendant’s driver as a careful driver is not in issue, and is immaterial. Williams v. Edmunds, 75 Mich. 92.</p> <p>3. It is competent to show that plaintiff was loading his wagon in the customary way in such drive-way, and that defendant’s driver knew what the customary way of loading was there, as affecting the question of his negligence in driving as close as he did to plaintiff’s wagon.</p>

Quo warranto. Proceedings by quo warranto to test the right of the respondent to hold the office of township drain commissioner. Elective term of relator having expired, he recovers a judgment for costs only. The facts are stated in the opinion.

<p> Mandamus. </p> <p>Relators applied for a mandamus to vacate an order requiring a justice of tbe peace to make a return to a writ of certiorari. The facts are stated in the opinion.</p>

(Grant, J.) Bill to restrain the sale of the property of a mining corporation in the Upper Peninsula on an execution in favor of a general creditor, until a judgment for unpaid labor is first satisfied, etc. Defendant Byrnes appeals from a decree granting the relief prayed for. The facts are stated in. the opinion.

<p>Highways — Proceedings for widening.</p> <p>1. Where a land-owner appeared in answer to a notice by the highway commissioner of a meeting to determine the necessity for altering and widening a highway, and objected to the proceed- ' ings on the ground that the application and notice and proof of service were not present, and was informed by the commissioner that they were at his house, and that if desired he would procure them, and his attorney answered that it would not be necessary to do so, — said papers being recorded in the proper record-book, which was present, and said land-owner having seen and inspected the original papers, — their absence will not invalidate the proceedings thereafter taken.</p> <p>2. A highway commissioner is not obliged to enter into expensive litigation to determine whether a land-owner has encroached upon a public highway, as opened and used for many years, and who denies its legal existence, but may take him at his word and condemn his land far highway purposes, and pay him damages and compensation therefor.</p>

(Kiune, J.) Appeal from the probate of two instruments, in form warranty deeds, but claimed by the proponents to be a will. The facts are stated in the opinion.

Case made from Kent. (Burch, J;) Trover. The facts are stated in the opinion, and in the former report of the case in 69-Mich. 560.

<p>Error to Mecosta. (Palmer, J.)</p> <p>Eeplevin. Plaintiff brings error.</p> <p>The facts are stated in the opinion, and in 68 Mich. 165.</p>

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

<p>Mechanics’ lien law — Judgment—Personal liability.</p> <p>In this case, the judgment, so far as it establishes a personal liability against the defendant, is affirmed, but is held void so far as it gives plaintiff a lien under the mechanics’ lien law of 1887, which was held unconstitutional in John Spry Lumber Co. v. Loan & Trust Co., 77 Mich. 199.</p>

<p>Bills and notes — Indorsement — Pleading—Declaration — Notice — Amendment.</p> <p>In this case the indorsements appearing upon the notes received in evidence were not correctly set up in the declaration; and it is held that an amendment should have been allowed in the furtherance of justice, if asked for, which was not done, and the judgment is reversed.</p>

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

<p>Chattel mortgages — Filing—Evidence—Fraudulent conveyances.</p> <p>1. The production of the record-book of chattel mortgages from the-proper office, upon which is found the entry of the filing of a chattel mortgage, as of a given date, in its regular order,, accompanied by the testimony of the clerk that the mortgage was among the files of chattel mortgages in his office until about the time of the trial, when it was delivered to the-attorney of the party producing it, is sufficient evidence of the making of such entry and of the filing of the mortgage at the-date named.</p> <p>2. In a suit between the holder of a chattel mortgage and an attaching creditor of the mortgagor, who attacks the mortgage as fraudulent as to creditors, testimony tending to prove that-the mortgagor entered into a fraudulent arrangement with certain other creditors, with respect to other personal property, is-properly excluded.</p>

<p>Certiorari to Clinton. (Daboll, J.)</p> <p>The nature of the case is stated in the head-note, and the facts in the opinion.</p>

(Newton, J.) The respondent Richfield appealed from proceedings taken to lay out and establish a street in the city of Owosso, and brings certiorari to review such proceedings, which were affirmed on such appeal in the circuit court. The facts are stated in the opinion.

(Hooker, J.) Bill for an accounting for money paid on a life-insurance policy. Complainants appeal from decree dismissing bill. The facts are stated in the opinion.

(Reilly, J.) Bill to discharge complainant as indorser of certain notes, and for their cancellation, as far as his liability as indorser is concerned. Complainant appeals from decree dismissing bill on general demurrer. The facts are stated in the opinion.

(Hooker, J.) Certiorari to drain commissioner, from circuit court, to review his proceedings in establishing a drain. The facts are stated in the opinion.

(Dickerman, J.) Case for assault and battery and malicious prosecution. Defendant brings error. The facts are stated in the opinion.

<p>Trespass — Possession of plaintiff — Title—Tax deed — Supervisor’s certificate — Evidence.</p> <p>1. In trespass to lands, where the defense of title is interposed, the plaintiff must either show possession or paramount title in himself.</p> <p>2. Paying taxes upon wild and uninolosed land, and occasionally looking it over, and requesting neighboring residents to report if it was trespassed upon, will not give the party asserting such acts of ownership such a possession as will entitle him to maintain an action of trespass.</p> <p>3. A defendant in a trespass suit who entered into possession under a tax deed, and cleared up and fenced a small portion of the land, and planted a crop, and was in actual possession, claiming under said deed, is in a position to contest the plaintiff’s title, the deed, though conceded to be void, giving him color of title to the whole premises; citing Hoffman v. Harrington, 38 Mich. 93.</p> <p>4. The tax roll returned to the county treasurer is not admissible in evidence to show that the supervisor’s certificate of assessment is defective, such certificate being no part of such tax roll, and not required to be copied therein; citing Boyce v. Sebring, 66 Mich. 215, 216.</p> <p>[The points of counsel are stated in the opinion.— Bbporter.]</p>

<p>Justices of the peace — Service of process — Jurisdiction—Evidence.</p> <p>1. A justice’s judgment was sued over in the circuit court. Upon offering in evidence the docket entries and flies, it appeared that the summons was served by a private person. No indorsement authorizing such service was upon the summons, nor did the docket show that any inquiry had been made by the justice as to the competency of the appointee. The circuit court permitted the justice of the peace who rendered the judgment to supply these omissions by his oral testimony, and to make the necessary indorsement upon the docket. And it is held that such action cannot be defended upon authority or reason.</p> <p>2. The following general propositions are summarized from the opinion of Mr. Justice Grant:</p> <p>a — Proof of service of process to give the court jurisdiction cannot rest in parol.</p> <p>b — Courts have liberally construed the statute of amendments in matters of form, where it is clear that no injustice can be done; but amendments without which the court obtains no jurisdiction to try the case can only be made by the trial court, and upon notice-to the opposite party, who is entitled to make a showing.</p> <p>c — Justices’ courts are courts of limited jurisdiction, having no stated terms; and when a case has been tried, and the record thereof enterpd upon the justice’s docket, his control over it has ended, except to issue execution.</p> <p>d — A justice of the peace cannot supply a jurisdictional fact in 'his return to a writ of certiorari by certifying to its existence, and thus cure the error; citing Noyes v. Hillier, 65 Mich. 36.</p> <p>e — This Court has held that, after a justice of the peace has made his return as an examining magistrate, he cannot procure the signatures of the witnesses who had failed to sign their depositions; citing People v. Chapman, 62 Mich. 280.</p> <p>f — A justice of the peace has no power to amend his judgment record by changing the Christian name of the defendant, although consented to by both parties; citing Foster v. Aldenr 21 Mich. 507.</p> <p>[The points of counsel are stated in the opinion.— Reporter:]</p>

(Burch, J.) Bill to declare the transfer of stock in an association organized under How. Stat. chapter 188, for yachting and hunting purposes, void, and to direct the association to issue a certificate for said stock to complainant, who purchased the same at execution sale, etc. Complainant appeals from decree dismissing his bill. The facts are stated in the opinion.

<p>Replevin — Jurisdiction—Costs—Sale—Fraud—Rescission—Declaration — Evidence—Commercial agencies — Reports.</p> <p>1. A reporter for a commercial agency, having testified to procuring a statement of the financial standing of a merchant, which he reduced to writing, and a copy of which he had in his possession, was asked, to refresh his recollection from the copy, and after stating that he could not remember the figures, but could state what the statement was by reading it, was permitted to read from the copy to the jury; and it is held that the testimony was incompetent, the effect being the same as if the copy had been introduced in evidence; citing Fowler v. Hoffman, 81 Mich. 215; Cameron v. Blackman, 39 Id. 108.1</p> <p>2. A statement in a declaration in replevin, immediately following the description of the property, that it is an invoice of goods sold by the plaintiffs to the defendants’ mortgagor, is mere description, and in no way affects the right of the plaintiffs to proceed as upon a rescission of the sale of the goods' for the alleged fraud of the mortgagor in making the purchase.</p> <p>3. Vendors, on rescinding a sale, brought replevin, and in the affidavit, writ, and declaration alleged the value of the goods to be §115.50, being the price agreed to be paid by the vendee. Goods appraised at §64.70 were seized on the writ, and the only evidence of the value of the goods not found was the aforesaid agreement. Judgment passed for the plaintiffs on the main issue, and it is held that they were entitled to costs under How. Stat. § 8964 (subd. 4), which gives a plaintiff in replevin costs if the circuit court has exclusive or concurrent jurisdiction.</p>

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

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

<p>Fire insurance — Mutual insurance companies — Authority of agent— Estoppel — Damages—Charge to jury.</p> <p>1. Whether How. Stat. § 4247, which limits insurance by mutual fire insurance companies to buildings that constitute detached risks in villages and cities, refers to incorporated or platted villages, is not decided, the Court not being inclined to so limit it; but the question is held unimportant where the application located the building in the “ town of Sumpter, south side of Main street,” and the word “village” was substituted in the policy, issued at the home office, such act estopping the company from denying that the place described is a village because neither platted nor incorporated as such.</p> <p>2. It seems to be settled by the weight of authority that there is no distinction between mutual and stock fire insurance companies as to their responsibility for the acts of their agents in taking applications for insurance.</p> <p>3. A policy-holder in a mutual fire insurance company does not become a member until he receives his policy; and if there is no limitation of tlie agent’s authority brought home to the assured-, he must be considered the agent of the company in receiving the application, and his acts and knowledge are the acts and knowledge of the company.</p> <p>4. In this case it is held that while the court should have limited the plaintiff’s recovery to the actual cash value of the property, that being the limit of the liability of the company under its charter, the omission was error without prejudice, inasmuch as the jury, in answer to special questions, fixed the value of the property at such a sum as prevented them from finding a verdict for less than the insurance and interest.</p>

<p>Logs and logging — Negleet to bréala jams — Statutory remedy — Contract — Abandonment.</p> <p>1. How. Stat. § 2035, which provides for the breaking of jams of logs caused by the failure of log-owners to make adequate provision therefor, and for driving the logs, gives a new remedy, and does not apply to cases where the parties interested have by contract fixed their rights and liabilities.</p> <p>2. A request to charge which assumes that the jury may find that a parol agreement was not made suspending a written contract, when both parties insist that one was made, and the only dispute is as to the place where it was made, and its terms, is objectionable, as is one which only submits to the consideration of the jury the parol agreement claimed by one of the parties.</p> <p>8/ A temporary suspension of work under a contract, for apparently good reasons, and without objection from the party affected thereby, cannot be construed into an abandonment of the contract.</p>

<p>Contract — Hiring— Wages.</p> <p>1. Where a foreman who has been receiving $125 per month for several years is engaged for another year without anything being said as to the wages to be paid, they will be presumed to continue at the old rate.</p> <p>2. The charge in this case, when construed as a whole, is held to fairly submit the question of plaintiff’s alleged hiring, and the date thereof, to the jury.</p>

' (Arnold, J.) Bill to discharge an outlawed mortgage, as a cloud upon complainant's title. Defendant appeals from a decree granting the relief prayed for. The facts are stated in the opinion.

<p>Settlement — Fraud—Rescission,</p> <p>1. It cannot be true, as a legal proposition, that, in every case where there is an honest difference of opinion in reference to the terms of the contract, or where the buyer, in good faith, objects to the quality of goods purchased as not being up to the standard of the contract of purchase, upon adjustment of differences and settlement the seller may, with an intention of instituting a suit upon a claim of being defrauded in the settlement thereafter to be made, proceed to such adjustment, and to a compromise and settlement of the demand, and recover from the purchaser damages for an alleged fraud in the settlement.</p> <p>S. Fraud and overreaching in the compromise and settlement of claims have been regarded as affording grounds for the recovery of damages in actions of trespass on the case: but no court has gone so far as to hold that a settlement voluntarily sought and made, where there has been no concealment of facts and no misrepresentations which have induced a party to enter into the compromise, and where there has been an honest difference of opinion as to the subject-matter compromised, furnishes a ground for such an action.</p>

<p>Practice in circuit court — Impaneling jury — Assault and battery —Evidence—Character.</p> <p>1. The business of courts cannot be delayed to suit the convenience of suitors.</p> <p>So held, where, after the counsel for plaintiff had announced themselves as satisfied with the jury, the defendant’s counsel stated that his client was absent, and that he did not desire to examine or impanel the jury until he arrived, and was directed to proceed with the examination, and the jury was impaneled in the defendant’s absence.</p> <p>2. In a civil suit for assault and battery, the defendant testified that the plaintiff, attacked him with a knife, which he did not identify, but called a witness who was present, who, after testifying that he did not see the knife at the time, but that a few days afterwards he was shown a knife which the defendant claimed was the one used by the plaintiff, was asked “what kind of a knife it was,” and the answer is held properly excluded.</p> <p>8. Where justification, by way of self-defense, is pleaded in a civil suit for assault and battery, it is competent to show the character of the opposite party as being quarrelsome or otherwise, when such fact has been brought to the knowledge of the defendant prior to the assault complained of; citing Galbraith v. Fleming, 60 Mich. 403; but the testimony of a third person to a knowledge of such fact, unless communicated to the defendant before the affray, is irrelevant.</p> <p>4. In a civil suit for assault and battery it became a disputed question of fact whether one of the injuries complained of was inflicted by the defendant, or resulted from the action of the plaintiff after the affray, and it is held error not to submit the question to the jury.</p> <p>[The points of counsel are stated in the.opinion. — Reporter.]</p>

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

<p>Contract — Parties—Substitution—Consideration—Extension of time.</p> <p>A logging contractor having failed in the full performance of his contract, by mutual agreement all claim for damages was waived, and the time of performance extended into another winter, the land-owners reserving the right to fix the time of removal of the timber on one of the sections designated in the contract. After this, and before the contractor had commenced work under the new agreement, third persons were induced to take it off his hands, and he was released upon their agreement to perform his agreements, which action is held to amount to a new contract with them, based upon the terms of the old contracts, and for which there was a sufficient consideration.</p>

<p>Landlord and tenant — Lease—Breach of covenant.</p> <p>The lease in this case is construed as only giving the lessor the right of re-entry, and possession of the stock and farming tools and utensils rented with the farm, in case the lessee failed to work the farm in a good and workman-like manner, and not to authorize the seizure of the crops for such breach.</p>

<p>Replevin — Manner of return — Judgment.</p> <p>This is an action of replevin for saw-logs, a portion of which were-cut from lands owned by the defendants, and upon which they placed their mark, but made no claim to the remainder of the logs, and exercised no acts of ownership over them; and it is-held that the only question to be submitted to the jury was-the amount of the logs taken belonging to the defendants, and their value, they having waived a return. •</p>

<p>Married woman — Bond—Evidence—Matters equally within knowledge of deceased person.</p> <p>1. A married woman is liable upon a joint and several bond, signed by herself and husband, given as security for money borrowed by her, and used in building a house upon her land.</p> <p>2. This Court has gone no further than to hold that it is not sufficient to warrant a recovery against the wife upon the joint obligation of herself and husband to simply show that the materials for which the obligation was given went to improve her separate property; citing Emery v. Lord, 26 Mich. 431.</p> <p>8. The testimony of a daughter of a claimant against th'e estate of a deceased person, as to admissions made by the deceased, is not incompetent under How. Stat. § 7545, prohibiting the •opposite party from testifying to matters which, if true, must have been equally within the knowledge of the deceased.</p>

<p>Chattel mortgages — Bill of sale intended as security — Consideration-—Execution—Beplevin—Waiver of return — Judgment.</p> <p>1. Where a bill of sale (intended as security) is given for a specified consideration, and nothing appears upon its face to indicate that it is intended to secure any other or greater sum, the creditors of the mortgagor (vendor) are entitled to treat it as. valid only to the amount specified; citing Jones, Chat. Mortg. § 79; Jones, Mortg. § 357.</p> <p>So held, where, in replevin by a vendee claiming under such a bill of sale from the sheriff, who had levied upon the property at the suit of a creditor of the vendor, the court instructed the jury that the bill of sale was given to secure an indebtedness of §3,000, being the named consideration, while the undisputed testimony showed that it was given to secure advances then made to the amount of §7,000.</p> <p>2. An assertion of a mortgage lien, after the payment of the-mortgage debt, is a fraud upon the creditors of the mortgagor, who may levy upon the property, and the mortgagees cannot maintain replevin against the officer.</p> <p>8. In replevin the appraised value of the property is not conclusive, and is accepted only in the absence of more satisfactory evidence; but the Court will conclude, from the failure of the plaintiffs to contest such valuation, that they are satisfied with it.</p> <p>4. In replevin from a sheriff of property seized on execution, he may elect to waive a return, and may take judgment for the amount of his lien, which is established by the judgment. The acceptance of a verdict for the value of the lien, and causing judgment to be entered thereon, is sufficient evidence of such election.</p> <p>5. The Court distinguished this case from Frederick v. Circuit Judge, 52 Mich. 529. In that case the sheriff held the goods under an attachment, and at the time of the trial of the replevin suit no judgment had been rendered in the attachment suit.</p> <p>[The points of counsel are stated in the opinion. — Reporter.]</p>

(Williams, J.) Information in the nature of a quo warranto to test the title of respondents to the office of trustees of a religious society. Delator brings error. The facts are stated in the opinion.

<p>Error to Wayne. (Brevoort, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion, and. in 73 Mich. 297.</p>

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

(Peck, J.) Respondent moved for a continuance of the case, as per agreement with the Attorney General. The facts are stated in the opinion.

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

'Mandamus. Relator applied for mandamus to dismiss an appeal from the allowance of a claim by commissioners on claims in probate court. The facts are stated in the opinion.

(Williams, J.) Bill to declare a resulting trust in land, and for a conveyance, etc. Defendant appeals from a decree granting the relief prayed for. The facts are stated in the opinion.

<p>Landlord and tenant — Nuisance.</p> <p>A declaration which sets up the construction and continuance of a nuisance by the defendant upon his own land, which the plaintiff went into possession of as a tenant, to the injury of the plaintiff, the existence and cause of which were unknown to the plaintiff, but were known to, and concealed from the plaintiff by, the defendant, discloses a cause of action in tort, resting upon the duty of the defendant to disclose to the plaintiff defects in the (leased) premises amounting to nuisances, known to defendant and concealed from plaintiff, and which were calculated to impair, and which did impair, the health of the plaintiff</p> <p>2. The declaration in this case is held to disclose a cause of action which does not rest upon any covenant, express or implied, of the landlord to repair the premises, nor that they were habitable at the time the lease was made, nor necessarily upon the relation of landlord and tenant, although the lease is set up by way of inducement, to show the right of plaintiff to the possession of the premises, — but one based upon the maxim that eveiy person must so use his own premises as not to injure others, either in person or property, rightfully in the vicinity.</p>

(Grant, J.) Bill to redeem mortgaged premises, and to recover rent® and profits. Defendants Catrina Becker and Eric E. and Ida K. Wickstrom appeal from a decree granting the relief prayed for. The facts are stated in the opinion.

(Buck, J.) Bill to compel defendant to return to complainant certain personal property, or its avails, which he turned over as belonging to the ward,, under an alleged mistake of law. Defendant appeals. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel respondent to levy a certain sum for free text-books. The facts are stated in the opinion.

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

Exceptions before judgment from St. Clair. (Canfield* J.) Respondent was convicted in justice’s court of assault and battery* and in the circuit court on appeal. The facts are stated in the opinion.

<p>Criminal law — Burglary—Larceny—Bar to prosecution.</p> <p>An acquittal under an information charging the respondent with burglary with intent to commit the crime of larceny, is not a bar to a subsequent prosecution for the same larceny, charged to have been actually committed.</p>

<p>Divorce — Desertion.</p> <p>Where, after living peaceably with her husband for 85 years, a wife left her home and went to California to see a married daughter, from whom she had been separated for some years, after which no correspondence passed between the husband and wife, and he, while professing a desire to keep his family together, made no effort to induce his wife to return, his bill for divorce on the ground of desertion is properly dismissed.</p>

(Kelley, J.) Respondent was convicted of incest, and sentenced to State prison for 15 years. The facts are stated in the opinion.

Exceptions before judgment from Alpena. (Kelley, J.) Respondent was convicted of engaging in the business of selling liquors without having paid the tax required by Act No. 313, Laws of 1887. The facts are stated in the opinion.

<p>Exceptions before judgment from Jackson. (Peck, J.)<</p> <p>Eespondent was convicted of larceny.</p> <p>The facts are stated in the opinion.</p>

Exceptions before judgment from superior court of Grand Eapids. (Burlingame, J.) Eespondent was convicted of having kept open, as the agent of Henry Huber, the saloon of his principal on a legal holiday. The facts are stated in the opinion.

<p>Liquor traffic — Keeping saloon open on Sunday — Evidence.</p> <p>The admission of a respondent on trial for failing to keep his saloon closed on Sunday, that he was the keeper of a liquor saloon located in a front room on the first floor of a designated building, is not prima facie evidence that he was the keeper of a like saloon located in a rear room in the second story of the same building, and only connected with the other saloon by an outside stairway from an alley at the side of the building.</p>

Mandamus.' Relator applied for mandamus to compel the respondent to receive the tax of $300 provided for by the liquor law of 1887, and issue a receipt therefor, on the ground that the law of 1889 was unconstitutional. The facts are stated in the opinion.

Exceptions before judgment from superior court of ■Grand Rapids. (Burlingame, J.) Respondent was convicted of keeping his saloon open on Sunday. The facts are stated in the opinion.

Exceptions before judgment from recorder’s court of Detroit. (Chambers, J.) Eespondent was convicted of manslaughter. The facts are stated in the opinion.

Exceptions before judgment from Bay. (Cobb, J.) Respondent was convicted of engaging in the business of a retail liquor dealer without having paid the required tax. The facts are stated in- the opinion.

Exceptions before judgment from Bay. (Cobb, J.) Bespondent was convicted of engaging in the business of a retail liquor dealer without having paid the required tax. The facts are stated in the opinion, and in People v. Bechtel, ante, 623.

(Mills, J.) Respondents were convicted of horse-stealing, and were sentenced to State prison for 7 years, and 6 years and nine months, respectively. The facts are stated in the opinion.

Exceptions before judgment from Berrien. (OTIara, J.) Respondent was convicted of engaging in the business of a liquor dealer without paying the required tax. The facts are stated in the opinion.

<p>Criminal law — Falsely assuming to be an officer — Statute construed„</p> <p>How. Stat. § 9252, does not attempt to punish, any person for falsely assuming to be a justice of the peace, sheriff, deputy-sheriff, coroner, or constable, but for falsely assuming to be, and taking upon himself to act as, such officer.</p>

<p>Liquor traffic — Provision authorizing county treasurer to require new bonds, construed:</p> <p>The specified causes for which new bonds might be required of liquor dealers by county treasurers, namely, “the death, insolvency, or removal of either of the sureties,” were not illegally laid down in the liquor tax law of 1887, but no method was provided of getting at the facts by a hearing before any one; which defect would have been cured by Act No. 213, Laws of 1889, if it had become a law. Robison v. Miner, 68 Mich. 549.</p>

(Simpson, J.) Replevin. Defendant brings error. The facts are stated in tbe opinion. Depew & Rutherford, for appellant, contended for the doctrine stated in the opinion.

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

Mandamus. Bolators applied for mandamus to compel the common council of the city of Detroit to rescind their action in the appointment of their co-respondents as superintendents, etc., of Belle Isle bridge, and to turn over its control to relators. The facts are stated in the opinion.