Volume 81 — Michigan Reports

(Buck, J.) Replevin. Plaintiff brings error. The facts are stated in the opinion. 1. It is only where one person delivers to another an animal to be kept or cared for that he has a lien for such keeping or care; citing How. Stat. § 8399. 2. The testimony, as to the reputation of the breed of horses to which the stallion in question belonged, was hearsay.

<p>Mortgage foreclosure — Settlement—Evidence.</p> <p>This case involves the question of the alleged settlement of the debts secured by the mortgages sought to be foreclosed. On a review of the testimony it is held that the settlement is not shown. Only questions of fact are involved.</p>

(Gartner, J.) Trover. Plaintiffs bring error. The facts are stated in the opinion. 1. An attorney’s letter, in reply to one addressed to his client, is admissible; citing Ward v. Beecher, 56 Mich. 616. 2. The identity of words in a written communication is for the jury who may be aided by parol evidence of the facts connected with the giving of the paper; citing Paine v. Ringold, 43 Mich. 341. 3.

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

Exceptions before judgment from Jackson. (Peck, J.) Respondent was convicted of manslaughter. The facts are stated in the opinion. 1. The amendment to the information introduced a new element, and possibly exposed respondent to a conviction not possible under the original information; citing People v. Adams, 52 Mich. 24. 2. The letter written to respondent’s father was not admissible.

<p>Error to recorder’s court of Detroit. (Gartner, J., (presiding.)</p> <p>Kespondent was convicted of uttering a forged deed, and sentenced to State prison for a term of 14 years, under Act No. 228, Laws of 1889, which sentence was set aside for the reason that said act had not taken effect at the time of the commission of the offense. He was resentenced to State prison for ten years, under How. Stat. § 9214, which last sentence is affirmed. The facts are stated in the opinion.</p>

<p>Process — Right of coroner to serve.</p> <p>The right of a coroner to serve process, under How. Stat. § 606, is now confined to cases where the sheriff is himself a party, or is directly interested in the suit.</p>

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

(Hooker, J.) Proceedings for punishment of fraudulent debtor under How. Stat. chapter 304. Plaintiffs bring error. The facts are stated in the opinion. 1. A plea in bar waives any objection to the jurisdiction of the court, which is affirmed by such plea; citing Webb v. Mann, 3 Mich. 139; Ins. Co. v. Curtis, 32 Id. 402; and where, after pleading in abatement, the defendant pleads in bar, he waives his first plea; citing Burnham v. Webster, 5 Mass. 266-268. 2.

<p>Fraudulent debtor — Proceedings for punishment of — Interest of justice of the peace — Plea in abatement — Waiver.</p> <p>This case is ruled by Clark v. Mikesell, ante, 45, in which, on demurrer, the plea in abatement was held sufficient to oust the justice of jurisdiction.</p>

<p>Nuisance — Abatement of in equity.</p> <p>A fence erected maliciously, and with no other purpose than to shut out the light and air from a neighbor’s windows, is a. nuisance; citing Burke v. Smith, 69 Mich. 380.</p> <p>[Counsel cited no authorities, except Bitrke v. Smith, 69 Mich. 380. — Reporter.]</p>

(Judkins, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion. contended as stated in the opinion, citing no authorities. cited the authorities cited in the opinion.

(Edget, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion. 1. The plaintiff cannot recover unless he shows that the company-had parted with its interest by indorsement; citing Meacher v. Fort, 3 Hill (N. C.), 227; and plaintiff must prove the indorse-' ment and the authority to indorse; citing Spicer v. Smith, 23 Mich. 96. 2. The first indorsement is wholly ineffectual to enable plaintiff. to recover.

(Edgefc, J.) Assumpsit. Defendant brings error. The' facts are stated in the opinion. 1.

(Palmer, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion, and in 74 Mich. 374. contended for the doctrine stated in the opinion.

Clair. (Canfield, J.) Debt on administratrix bond. Defendant Miller, a surety, brings error. The facts are stated in the opinion. 1. Plaintiffs, having procured an order limiting the time for the payment of debts, must be held bound thereby, and to have full notice thereof in all essentials as to the remedy, and as to the operation of the statute of limitations, and they are hound precisely as if the administratrix had procured the order, and given notice under How.

(O’Hara, J.) Ejectment. Defendant brings error. The facts are stated in the opinion. 1. The fact that plaintiff left her home did not deprive the premises of their homestead character so long as the husband chose to occupy them, and he can assert such homestead right; citing Pardo v. Bittorf, 48 Mich. 275; Griffin v. Nichols, 51 Id. 579; Rowe v. Kellogg, 54 Id. 206. 2.

<p>Certiorari to Ionia. (Smith, J.)</p> <p>Plaintiff brings certiorari to review proceedings dissolving an attachment.</p> <p>The facts are stated in the opinion.</p>

<p>Pleading — Statute of limitations — Notice—Bills and notes — Justice’s judgment — Collateral attach— Garnishment — Disclosure by corporation — Transmission of by mail.</p> <p>1. Notice of the statute of limitations must be added to the plea of the general issue to enable the defendant to avail himself of such defense; citing Snyder v. Winsor, 44 Mich. 140; Ripley v. Davis, 15 Id. 75.</p> <p>3. A note payable to the order of “J. Whitworth & Co,” and indorsed in blank in the firm name, may be sued by any holder.</p> <p>3. In a suit against a garnishee defendant the judgment record in the main case cannot be attacked by proof that the principal defendants never appeared, and never consented to an adjournment, which facts are shown by such record, which is regular upon its face, and recites the necessary facts to give the justice jurisdiction over the persons of the principal defendants and the subject-matter of the suit.</p> <p>4. A justice’s docket was offered in evidence, through the justice, in garnishment proceedings, to prove the rendition of a judgment against the principal defendants. Certain erasures appeared in the margin of the docket outside of the ruled lines, but the counsel for the defendant asked the justice no questions in reference to such erasures. The circuit court found that the judgment was valid; and it is held that the question of such erasures could not be inquired into in the appellate court.</p> <p>5. The disclosure of a x'ailroad company in a garnishment proceeding in justice’s court purported to have been made by the assistant treasurer of the company. He testified that he was such officer, and that he made the disclosui-e in behalf of the company, and that he had knowledge of the facts therein stated; and it is held that sufficient authority is shown to make such disclosure.</p> <p>6. A i-ailroad company having its business office in the city of Detroit, and proceeded against as garnishee defendant befox-e a justice of the peace of the city of Grand Rapids, may transmit its sworn disclosure by mail, under Act No. 175, Laws of 1885.</p>

(Peck, J.) Ejectment. Defendant brings error. The facts are stated in the opinion. contended for the doctrine stated in the opinion. 1. Unless the land in question was within the general description owned by defendant, then defendant had no paper title thereto, and his possession, and that of his grantor, was originally a mere trespass.

(Peck, J.) Bill to set aside a deed, and for partition of complainant’s dower interest in the land. Complainant appeals. The facts are stated in the opinion. 1. In civil cases fraud need not be shown by direct proof.

Mandamus. Relators applied for mandamus to vacate an order for the transfer of a cause under How. Stat. §§ 6499-6502. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to determine the constitutionality of Act No. 455, Local Acts of 1889, consolidating the two Saginaws. The facts are stated in the opinion.

Mandamus. Relators applied for mandamus to compel the issuance of an execution upon a justice’s judgment, and the receiving and filing of a chattel mortgage. The facts are stated in the opinion.

(Gartner, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion. 1.

(Buck, J.) Case lor malicious prosecution. Defendant brings error. The facts are stated in the opinion. 1. Defendant’s second request should have been given. If the plaintiff failed to show that there was no probable cause for making the complaint, his action must fail, even if defendant acted maliciously in making it; citing Hamilton v. Smith, 39 Mich. 222; Jacks v. Stimpson, 13 Ill. 703; Israel v. Brooks, 23 Id. 575. 2.

(Kinne, J.) Negligence case. Defendant brings error. The facts are stated in the opinion. 1. Since the statute making all parties witnesses,' either party may compel the opposite party to testify; citing Riopelle v. Doellner, 26 Mich. 102, 105; Montague v. Dougan, 68 Id. 98; but we do not understand that the statute compels either party to attend and be sworn in his own behalf unless he so desires.

(Buck, J.) Bill to set aside partition proceedings in probate court, and lor an accounting and for a partition in chancery. Complainants appeal. The facts are stated in the opinion.

(Reilly, J.) Appeal from disallowance of claim by commissioners on claims. Judgment of circuit court, affirming decision of commissioners, The facts are stated in the opinion. 1. So far as we have been able to find, the only cases where general reputation for solvency has been received were where “ the issue was whether a preferred creditor or a grantor of a debtor had reason to believe him to be insolvent; citing 1 Greenl.

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

Mandamus. Relators applied for mandamus to vacate an order allow-Jng an ex-sheriff fees for personal custody of attached property. The facts are stated in the opinion.

<p>Bills and notes — Sale—Warranty—Good-faith, purchaser.</p> <p>A span of mares were sold at auction under a warranty that they were with foal. The purchaser gave his promissory note in payment, and it was purchased by a person who acted as clerk at the sale, in good faith and before maturity and for value, with knowledge of the warranty, but without notice or knowledge of its breach; and it is held that such breach could not be set up as a defense in a suit by such purchaser on the note.</p>

<p>Practice in circuit court — Agreement of counsel as to objections to class of testimony — Assignments of error.</p> <p>1. When counsel agree that objections made to a certain class of testimony may apply to all such testimony without objecting to each question, which agreement is taken down by the stenographer and embodied in the bill of exceptions, the objections and exceptions will be considered as timely made and taken to all of that class of testimony.</p> <p>2. Questions not raised by assignments of error cannot be considered; citing 1 Jac. & C. Dig. 724, tit. “ Error.”</p>

(Buck, J.) Case for malicious prosecution. Defendant brings error. The facts are stated in the opinion. 1. Under the conceded facts the question of “ probable cause ” was for the court, and a verdict should have been directed for the defendant; citing Bulkeley v. Keteltas, 6 N. Y. 384; Besson v. Southard, 10 Id. 236; Burns v. Erben, 40 Id. 463; Heyne v. Blair, 62 Id. 19; Thaule v. Krekeler, 81 Id. 428. 2.

(O’Hara, J.) Assumpsit. Plaintiff brings error. The facts are stated in the opinion. 1. The hiring of teachers for graded schools is not governed by How.

(Burch, J.) Assumpsit. Plaintiff brings error. The facts are stated in the opinion. 1. The office of a bill of particular's is to inform the opposite party of the causes of action the party giving it intends to rely on at the trial, not specifically set out in the declaration; citing Davis v. Freeman, 10 Mich. 188; Cicotte v. Wayne Co., 44 Id. 173.

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

(Brevoort, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion. contended as stated in the opinion, and his authorities are cited in foot-notes. 1. Assumpsit does not necessarily imply a contract, but may lie-where some duty would justify the court in imputing a promise to perform it; citing Woods v. Ayres, 39 Mich. 345. 2.

Habeas corpus proceeding. Petitioner applied for bis release from State prison because the record of his sentence showed that he had been sentenced for a different offense than that for which he had been tried and convicted. The facts are stated in the opinion.

<p>Justices’ courts — Special appeal — Return—Docket entries — Dismissal of case under mistake of fact — Jurisdiction,</p> <p>1. Where the docket entries returned by a justice of the peace on a special appeal show jurisdiction to render the judgment, his return to the matter set up in the affidavit for such appeal cannot be taken to impeach the docket itself: citing Clark v. Holmes, 1 Doug. 390; Weaver v. Lammon, 62 Mich. 366.</p> <p>3. A justice of the peace, under the supposition that the plaintiffs had not appeared, announced that the case would be dismissed for that reason; but ascertaining within the statutory hour, and before any record had been made or injury resulted to the defendant, that plaintiffs had appeared by counsel, who was then just outside the court-room door, he notified the defendant’s attorney to appear at a given hour the same day. The attorneys for both parties appeared at the hour named, when the defendant’s attorney stated that he appeared specially, and verbally pleaded such dismissal as an abatement of the suit. The justice assumed jurisdiction of the case, heard the plaintiffs’ testimony, and rendered a judgment in their favor, which action is sustained.</p>

Mandamus. Relator applied for mandamus to vacate a portion of an order made by respondents, imposing certain conditions to right to cross street and railroad tracks. The facts are stated in the opinion.

<p>Taxes — Assessment—Judicial character of supervisor's duties— Board of review.</p> <p>1. A supervisor, when acting as assessor, is a quasi judicial officer, and in the exercise of his judicial duties he cannot be held liable in a suit at law foir errors he may have made, but the injured party must resort to some direct proceeding for their correction.</p> <p>g. A supervisor is not bound to taka the statements of any person as to the ownership of land, nor as to the person to whom it should be assessed, but may exercise his best judgment in determining these questions.</p> <p>So held, where, in consideration of aid furnished by a township towards the construction of a bridge, the bridge company agreed to permit all tax-payers of the township to cross free of toll. A resident of an adjoining township contracted with a land-owner in the first-named township for the purchase of two acres of wild swamp land, on which he paid the taxes for one year, and passed over the bridge free, after which the supervisor refused to assess the two acres to him, on the ground that he believed that the contract was made for the purpose of securing1 free passage; and it is held that the case was one calling for the exercise of the judgment and discretion of the supervisor, in which the law wisely protects him.</p> <p>3. A person who c]aims that a supervisor has wrongfully refused to assess land to him, which he claims to own, and fails to present the matter to the board of review for correction, cannot maintain a suit against the supervisor for such refusal, even if he could otherwise maintain his suit.</p>

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

(Gartner, J.) Case. Plaintiff brings error. The facts are stated in the opinion. 1. We did not offer to have plaintiff “testify at all,” but that the stenographer should testify as to plaintiff’s evidence given on the former trial. If the testimony of the deceased defendant had been also given, how could it have been said that the dead man was testifying?

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

(Moore, J., presiding.) Case. Defendant brings error. The facts-are stated in the opinion. contended as stated in the opinion. 1. The only objection made to the testimony of plaintiff to the conversation had with his wife before marriage was that it was incompetent. There certainly could be no better evidence of what Mrs. Carter said about staying at defendant’s after her marriage to plaintiff than that of one who hoard her say it.

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

<p>Negligence — Injury at railroad crossing — Contributory negligence.</p> <p>In this case it is held that the plaintiff was guilty of contributory negligence in attempting to cross a railroad track without looking to see if a train was approaching, his opportunities for seeing the train being- as good as those of witnesses who saw plaintiff drive upon the track, when the train was approaching, as if it were not coming.</p>

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

<p>Fraudulent conveyances — Sale—Ghange of possession — Burden of proof — Husband and wife.</p> <p>1. How. Stat. § 6190, making a sale of personal property fraudulent as to creditors where possession is retained by the vendor, unless shown by the purchaser to have been made in good faith and with a contrary intent, is construed as follows:1</p> <p>a — The question of a change of possession must in all cases be considered in connection with the other facts in the case. The situation of the parties, and their relation to each other, the kind of property, and its susceptibility of an actual change of possession, must all be considered, and that must be done which will indicate such a change; and, where this is not the case, the burden of proof is upon the purchaser to show that the sale was made in' good faith, and without any intent to defraud creditors, from which burden the wife or husband who is a purchaser from the other is not exempt.</p> <p>b — It is not enough that the purchase was made for a valuable consideration, and with intent to pass the title absolutely; but the retention of possession is conclusive evidence of fraud, unless the purchaser also makes it appear that the sale was made without any intent to defraud creditors.</p> <p>c — A fraudulent intent on the part of the -seller, although not participated in by the buyer, will avoid the sale as to creditors, such participation being only necessary where a sale followed by an actual change of possession is attacked as fraudulent as to creditors.</p> <p>2. Where a sale of personal property, followed by an actual change of possession, is attacked as fraudulent as to creditors, the burden of proof is upon the attacking party to establish such fact.</p>

(Chambers, J.) Respondent was convicted of violating an ordinance .regulating the removal of garbage in the city of Detroit. The facts are stated in the opinion. 1. To be valid, an ordinance or by-law must be strictly within the authority conferred by the charter: citing Mayor v. Rood, Hill & D. 146; and it must be reasonable; citing 1 Dill. Mun.

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

(Dickerman, J.) Replevin. Defendant brings error. The-facts are stated in the opinion. cited no authorities. 1.

(O’Hara, J.) Asmmpsit. Defendant brings error. The facts are stated in the opinion. 1. The grant is joint, as are the covenants, and the entire premises are described in the deed. The word “we” is used to make a joint covenant of warranty. There can be no mistake that the intention was to have it apply to the entire premises, and that each signer should be in like manner bound. Any other construction would take from the covenant its natural meaning. 2.

(Buck, J.) Bill to restrain the cutting and removal of timber and the commission of waste. Defendant appeals. The facts are stated in the opinion.

(Hart, J.) Bill to restrain defendant district from exercising juris•diction over certain territory formerly belonging to complainant, and for an accounting. All parties appeal from a decree granting the injunctive relief prayed for, but •denying an accounting. The facts are stated in the opinion.

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

<p>Mortgage — Assignment of rents and profits — Trustees—Public policy —Interest.</p> <p>1. A mortgagor desired to plat the mortgaged premises, and to arrange for the release of the lots and blocks as sold. The mortgagee held two past-due mortgages upon improved city property belonging to the mortgagor, containing the usual insurance and tax clauses. He agreed to receive, at any time within three years, payments to apply on the third mortgage, and to release the lots and blocks in the order in which they should be sold In consideration of this agreement the mortgagor assigned to a trustee the rents and income of the premises covered by the other mortgages, “ until the interest and taxes now due, and that shall have accrued, upon the mortgages and lands,” were paid: provided, said mortgages were not sooner paid, in which case the agreement was to terminate. The trustee was to apply the rents to the payment of taxes and insurance on the mortgaged premises, to the payment of interest on the mortgages, and on a mortgage on a farm held by another mortgagee, in the order stated. The trustee collected and applied the rents for about four years, but at no time had enough money to pay the taxes and accrued interest. During this time the mortgages on the platted property and on the farm were paid by the mortgagor, who sought to revoke the assignment, and forbad.e the trustee from taking further action thereunder, contending that the assignment was confined to interest and taxes due when it was made, which had been paid; that, if this is not the true constructiou, then, by the payment of the other mortgages, the agreement became applicable to the mortgages on the property, the rent and income from which is to be applied upon said mortgages, and is therefore against public policy; and that the foreclosure suit annuls the agreement; all of which propositions are held untenable by the Court.</p> <p>2. After the maturity of the principal, interest cannot be compounded under How. íátat. § 1599.</p>

<p>JAquor traffic — Payment of tax before approval of bond — Right of recovery from township.</p> <p>A liquor tax, paid before the approval of the required bond, cannot be recovered back from the township receiving it. So held, where before such approval the payor commenced business, which was abandoned after a conviction for a violation of the law, and five years afterwards suit was brought against the townshipto recover thetax received from the county treasurer.</p>

(Peek, J.) Case. Defendant brings error. The facts are stated in the opinion. contended for the doctrine stated in the opinion. 1. The damages which plaintiff seeks to recover under his declaration are mainly consequential.

(Peck, J.) Case. Plaintiff brings error. The facts are stated in the opinion. 1. The right to eject a passenger from a train depends upon How. Stat. S 3370. He may be lawfully expelled for a refusal t > pay his fare, or to obey such regulations as may be established for the convenience and safety of the passengers. 2.

(Hosmer, J.) Bill to set aside -a deed and for injunctive relief. Complainants appeal. The facts are .stated in the opinion.

Mandamus. Relators applied for mandamus to set aside an order adjudging them guilty of contempt in a garnishment proceeding. The facts are stated in the opinion.

Respondents applied for an order for an amended return, and for an injunction restraining the railroad company from using the land pending the proceedings. The facts are stated in the opinion.

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

<p>Criminal law — Indorsement of names of witnesses upon information — Evidence—Statements of respondent — Duress.</p> <p>1. Where, after the commencement of the trial of a criminal case, the prosecuting attorney stated to the court that he had just learned of two miterial witnesses whose names were not indorsed on the information, and the respondent’s counsel thereupon waived any further showing, the indorsement of such nanus is not error.</p> <p>2. The right of a respondent, under How. Stat. § 9549, to have the names of witnesses known to the prosecuting attorney indorsed on the information before the trial, is a substantial one, which courts cannot ignore; nor will the carelessness or neglect of the prosecuting officer warrant the court in permitting such indorsement on the trial. People v. Price, 74 Mich. 37 (head-notes 1, 2).</p> <p>3. Where, the question whether alleged statements of a respondent to an officer were freely and voluntarily made is fainy submitted to the jury as an issue of fact, evidence of such statements is competent; but the jury should be instructed to first determine such preliminary issue, and, if they find that the statements were made under compulsion or duress, not to c onsider them in arriving at a verdict. People v. Barker, 60 Mich. 279 (head-note 10).</p> <p>4 Where a female witness who was employed to obtain testimony against a respondent charged with the larceny of money, because of the influence she was supposed to have over him, testified to his promise to make her a loan, which he after-wards informed her he could not d>, he may testify to his relations with the witness, and if about that time he had not proposed marriage to her, such fact being for the consideration of the jury in determining the question of his innocence.</p> <p>[The points of counsel are discussed in the opinion. — • Reporter.]</p>

(Burch, J.) Bill to declare municipal bonds issued for railroad purposes null and void, and to enjoin their negotiation. Defendant Schlich appeals. The facts are stated in the opinion. 1.

(Grove, J.) Petition for removal of assignee under Act No. 215, Laws of 1889. Assignee appeals from order of removal. The facts are stated in the opinion.

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

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

Mandamus. Relator applied for mandamus to strike from the files an amendment to a chancery bill allowed by respondent. The facts are stated in the opinion.

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

<p>Bills and notes — Good-faith holder — Evidence—Bohemian oat note.</p> <p>Plaintiff purchased a “Bohemian oat note” before maturity, and at a reasonable discount. He testified that at the time of the purchase he had heard that the payee was dealing in Bohemian oats, but had never bought any himself; that he knew nothing of the scheme or plan of their sale, nor what the note was given for. There was no evidence that such scheme or plan of sale had become public at time of such purchase. And it is held that plaintiff was entitled to recover if the jury believed his testimony.</p> <p>[The claims of counsel, and authorities relied on, ai’e stated and cited in the opinion. — Reporter.]</p>

<p>Highways — Proceedings to establish — Notice.</p> <p>Ten full days’ notice must be given of the bearing of an application to lay out a highway. How. Stat. § 1298; People v. Commissioner, 38 Mich. 247; Price v. Stagray, 68 Id. 17; Dixon v. Commissioner, 75 Id. 225.</p>

Case made from Kalkaska. (Aldrich, J.) Case submitted without suit. Defendants assign error. The facts are stated in the opinion. 1. It is the hiring of a place of storage that is made a ground for taxation; citing Hood v. Judkins, 61 Mich. 580; Huckins v. Boston, 4 Cush. 543; Loud v. Charlestown, 103 Mass. 278; Campbell v. Machias, 33 Me. 419; Desmond v. Machias Port, 48 Id. 478; Lee v. Templeton, 6 Gray, 579.

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

Case made from Jackson. (Peck, J.) Appeal from order of circuit court affirming order of probate court denying petition for appointment of administrator. The facts are stated in the opinion.

(Buck, J.) Summary proceedings to recover possession of laud. Defendant brings error. The facts are stated in the opinion. citing the authorities therein cited. 1. A party in possession under a land contract containing no provisions. relating to the right of possession, who holds over after forfeiture, with the assent of the vendor, is a tenant at will, and entitled to notice to quit.

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

Clair. (Canfield, J.) Garnishment proceedings. Plaintiff brings error. The facts are stated in the opinion. contended as stated in the opinion, citing no authorities. 1. When the disclosure showed that a third party, claiming to be the owner, had presented the note for payment, it was the duty of plaintiff to interplead said claimant; citing Act No. 176, Laws of 1885; Kennedy v. McLellan, 76 Mich. 598 (head-note 5). 2.

(Peck, J.) Case for malicious prosecution and malicious abuse of process. The facts are stated in the opinion. 1. The pretended claim for services in getting a wife for Antcliff was illegal and void, and an action could not be maintained on it, even if there had been a contract for such services. Defendants knew this, or should have known it; hence there was want of probable cause for bringing and maintaining the suit; citing Eastin v. Bank, 66 Cal. 123. 2.

(O’Hara, J.) Bill to declare dower in land alleged to have been conveyed in contemplation of marriage, and in fraud of complainant’s rights in case of such marriage. The facts are stated in the opinions. 1. A controversy over the delivery of a deed involves the intention of the grantor, and all testimony bearing upon that question should be admitted; citing Pangborn v. Ins. Co., 62 Mich. 642. 2.

<p>False imprisonment — Burden of proof — Evidence—Damages.</p> <p>1. In an action for false imprisonment, the mere fact that the plaintiff has been imprisoned is sufficient, standing alone, to raise the presumption that the imprisonment was illegal; but if the plaintiff shows that such imprisonment was caused by a complaint made by the defendant before a magistrate, the issuance of a warrant thereon, and a trial and conviction under it, and that the chief damages resulted from plaintiff’s imprisonment upon such conviction, the burden is upon him to show that the complaint was invalid.</p> <p>2. It is immaterial, in an action for false imprisonment, whether the plaintiff had money with which he might have paid a flue, and escaped the imprisonment complained of. If wrongfully convicted, such facts could have no bearing on his rights, or the amount of damages he would he entitled to recover.</p> <p>[The points of counsel are stated in tbe opinion.— Reporter.]</p>

<p>Agreement with debtor to pay Claim — Privity of contract.</p> <p>Creditors cannot recover upon an agreement made by a third person with the debtor to pay their claims, to which they are not parties, and which has not been assigned to them.</p>

(Lane, J.) Bill to set aside a statutory foreclosure. Defendants appeal. The facts are stated in the opinion. 1.

(Hosmer, J.) Assumpsit on a benefit certificate. Defendant brings error. The facts are stated in the opinion. 1. Plaintiff could not raise the question of privilege. She occupies no different position than if she were a creditor having a beneficial interest in the life insured.

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

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

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

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

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

(Hosmer, J.) Bill to set aside tax titles on land claimed by defendant, as exempt from taxation. Defendant appeals. The facts are stated in the opinion.

(O’Hara, J.) Respondent was convicted of the crime of rape, and sentenced to State prison for 14 years. The facts are stated in the opinion.

(Gage, J.) Respondent was convicted of larceny, and sentenced to State prison for two years. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to set aside the service of a declaration and notice of rule to plead, for the reason that the statute does not authorize the commencement of suits by declaration against municipal corporations. The facts are stated in the opinion.

Case made from Kent. (Grove, J.) Appeal from order of circuit court affirming order of the probate court denying probate of a will. The .facts are stated in the opinion.

<p>Contempt proceedings — Jurisdiction of court — Order of imprisonment.</p> <p>How. Stat. chap. 256, providing for “ proceedings as for contempts to enforce civil remedies, and to protect the rights of parties in civil actions,” is construed as follows:</p> <p>a — Such proceedings cannot be instituted on the petition of a party upon whom process has not been served, and who has not appeared and submitted himself to the jurisdiction of the court.</p> <p>b — Such proceedings may be prosecuted although no party is aggrieved by the misconduct for which the attachment is issued, and, like proceedings as for criminal contempts, may be instituted by the court upon its own motion, and without the intervention of the party to the pending suit; citing Langdon v. Wayne Circuit Judges, 76 Mich. 358.</p> <p>a — A failure to file interrogatories, as required by How. Stat. § 7275, and to allow the party proceeded against an opportunity to produce his witnesses, is an irregularity calling for a reversal of the final order adjudging him guilty of the contempt charged.</p> <p>d — Imprisonment can only be ordered, under How. Stat. §§ 7279, 7280, until the fine is paid or the act or duty imposed performed.</p>

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

<p>Constitutional law — Agricultural societies — Limitation of duration —Non-user—Officers—Sale of property.</p> <p>1. Section 10, Art. 15, of the Constitution, which provides that “no corporation, except for municipal purposes, or for the construction of railroads, plank-roads, and canals, shall be created for a longer time than thirty years,” does not apply to county agricultural societies organized under How. Stat. §§ 2303-2812.</p> <p>2. The evident intent of section 10, Art. 15, of the Constitution, limiting the life of certain corporations to thirty years, was to prevent the perpetuation of corporate power and corporate wealth so as to place it practically beyond the reach of the people or the Legislature; and it was intended to apply to corporations of a private character, organized for profit and the accumulation of wealth, and not to those which were publie in their character, and designed solely for the purpose of education and improvement.</p> <p>8. The doctrine of non-user cannot apply to a county agricultural society whose lessee has held annual fairs, and carried out all of the purposes of the organization, which has been kept up, and whose directors and officer’s have continued to perform their duties.</p> <p>4. In the absence of an election, the directors and officers of a county agricultural society organized under How. Stat. §§ 2303-2312, hold over.</p> <p>5. The president and secretary of a county agricultural society, organized under How. Stat. §§ 2303-2312, are ex offieio directors, and entitled to vote on all matters the same as those who are specifically called “ directors.”</p> <p>6. Act No. 378, Local Acts of 1885, authorizing the Kent County Agricultural Society to dispose of its grounds and invest the proceeds, is a valid enactment.</p>

<p>Railroad companies — Injury at crossing — Contributory negligence.</p> <p>1. In this case the plaintiff is held to have been guilty of contributory negligence in attempting to cross a railroad track at a crossing so obstructed by intervening objects that he could not see a train approaching from one direction until he was within 20 or 25 feet of the crossing, and then only for a few rods up the track, without first stopping his team, and taking some precaution to see if a train, which he knew was about due, was approaching.</p> <p>2. The following principles have been settled in this State as to the degree of care which a person must exercise in approaching and passing over a railroad track where it intersects a highway:</p> <p>~a — He is bound to recognize the danger, and make use of the sense of hearing and sight to ascertain, before attempting to cross, whether a train is in dangerous proximity. If he neglects to do this, and ventures blindly upon the track, it must be at his own risk; and such conduct should be pronounced negligence by the courts, as matter of law; citing Railroad Co. v. Miller, 25 Mich. 274.</p> <p>b — A person familiar with a railroad crossing, having been frequently over it, arid knowing its location, when approaching it is under the highest possible obligation to observe such precautions as are needful to avoid a collision, and a failux’e so to do is contributory negligence that will pi-event a recovery for damages, if any accrue; citing Haas v. Railroad Co., 47 Mich. 401.</p> <p>c — If a person approaches a railway crossing without reasonable caution and care, particularly when a fast train is due and approaching, and by reason thereof his team becomes unmanageable, goes upon the track, and injury results, there is such contributory negligence as will prevent a recovery; citing Rhoades v. Railway Co., 58 Mich. 263.</p>

(Gage, J.) Case. Defendant brings error. The facts are stated in the opinion. 1. Where an injury to person or property results from the act of a domestic animal, an action will not lie against the owner except on proof of the vicious nature or habit of the animal, and knowledge on the part of the owner; citing Cooley, Torts, 343, 344; Brooks v. Taylor, 65 Mich. 208; Knowles v. Mulder’ 74 Id. 202. 2.

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

(Smith, J.) Case for injuries from defective sidewalk. Defendant brings error. The facts are stated in the opinion. 1.