Volume 86 — Michigan Reports

<p>Power of trustees — Principal and agent.* 1</p> <p>1. Where several persons are appointed to execute a power or trust, and no authority is given to a less number than the whole to act, all must join in the execution. Scott v. Society, 1 Doug. 149; Weise v, Rich, 77 Mich. 325.</p> <p>2. Permission by two of three trustees to their co-trustee to extend the term of a lease and collect the rents cannot be construed as giving him authority to purchase a house on the leased premises.</p> <p>[The points of counsel are fully stated in the opinion. —Reporter.]</p>

<p>Error to Clare. (Hart, J.,</p> <p>Proceedings under log-lien law of 1887. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Municipal corporations — Liability for defective sidewalks— Evidence.</p> <p>1. In a negligence case for injuries sustained by reason of a defective sidewalk, it is proper for the plaintiff to produce and identify the defective plank, and to show that it was taken from the walk at the place where the plaintiff claimed to have been injured.</p> <p>2. Plaintiff in this class of cases should be required to show the nature of the defect át the time of and before the accident, and when this is done, and liability is disclosed, it is unnecessary to go further, and if not done it is error to predicate the existence of an actionable defect upon the fact of repairs subsequent to the accident. Iron Works v. Kimball Township, 52 Mich. 146, 149. But where there is abundant proof of the existence of the defect prior to the accident,,, the admission of testimony showing such repairs is error without prejudice.</p> <p>3. Evidence that others had stepped into the same hole in the walk before the time of plaintiff’s injury is competent as bearing upon the existence and character of the defect complained of.</p> <p>4. The statute gives to villages control of sidewalks, of their grade, width, material, and manner of construction. Owners of lots may be required to construct, maintain, and repair sidewalks in the streets adjacent to such lots; and, if an owner fails to construct or repair, the village may do so at his expense, and assess the amount of such expense upon his lot.1</p> <p>5. Land-owners may construct sidewalks in the absence of any direction by the village, subject, however, to such regulations regarding the same as may and should be prescribed by the village; and when so constructed the village must use reasonable care to prevent them from becoming dangerous, and cannot escape liability on the ground that it did not build the walk or direct its construction.2</p> <p>6. The duty imposed upon cities and villages to keep their sidewalks in repair and reasonably safe for travel is an imperative one, and involves the duty of providing all that is necessary to that end, including not only the necessary ordinances regulating their construction, but a “ full complement of officers and employés,” as well as the necessary funds for that purpose.</p> <p>7. On the incorporation of a village, and on assuming control over the corporate territory, it becomes its duty, in view of the statute, to take prompt measures for its observance, to supply the necessary employés, to remedy any existing defects by reason of any disconnected system, to supply the necessary regulations, and to raise the necessary funds; and after having had 15 months within which to do this, and having failed, it cannot be allowed to plead its own negligence to defeat a recovery by a plaintiff who has been injured by reason of a defective walk.</p> <p>[The points of counsel are stated in the opinion, where, and in the foot-notes, reference is had to the authorities. —Reporter.]</p>

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

<p>Writ of error — Final order — Demurrer.</p> <p>An order sustaining a demurrer to a declaration, and directing final judgment for the defendant unless the plaintiff file an amended declaration within 20 days, is not a final order until after the expiration of the time allowed for such amendment.</p>

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

<p>Deed — Delivery to infant.</p> <p>The recording by a father of a warranty deed which he has executed to his minor children, with a reservation of a life-estate in the land for himself and their mother, is as effectual a delivery as could be made, and there could be no stronger evidence of his intention to convey the fee to the grantees.</p>

<p>Sale — Contract—Evidence—Scale-sheets—Set-off,</p> <p>1. Where a logging contract provides that the logs shall be scaled by a competent scaler, to be mutually agreed upon by the parties, and the testimony is conflicting as to the making of such agreement, evidence of other scales is admissible, and may be considered by the jury in case they find that a scaler was not agreed upon.</p> <p>2, A scaler, in reliance upon measurements made by an assistant of the opposite ends of logs on a skid-way, which he called off, as also any apparent defects, measured the ends of the logs next to him; which scale is held to be incompetent evidence, in the absence of proof that the measurements were accurately made by the assistant, and the defects correctly reported.1</p> <p>3. A purchaser of standing timber who had agreed to pay all taxes and assessments imposed upon the land from and after October 7, 1886, until the timber was removed, or until the expiration of the time limited for its removal, assigned the contract, and contracted to cut and deliver the timber to the assignees, who paid the taxes assessed on the land for 1886 and 1887, those for 1887 being paid before they became a lien upon the land, and before the removal of all of the timber or the expiration of the time limited for its removal; which payments are held a proper set-off in a suit by the assignor against the assignees upon the logging contract.</p>

<p>Jury — Impaneling—Challenge to array.</p> <p>1. How. Stat. §§ 7567, 7575, obviously intend—</p> <p>a — That a jury shall be obtained from the whole body of the county.</p> <p>b — That the names of those first placed in the boxes shall be exhausted before returning to the boxes the names of those previously drawn.</p> <p>The first of these requirements is as important as the second, but it was held in People v.' Coffman, 59 Mich. 1, that the failure of a township to return a list of jurors is not a good ground for challenge even in a criminal case.1</p> <p>3. Where in drawing a jury the names returned from a township are exhausted, the clerk should draw the jury for a second term during the same year from the remaining townships; but his failure so to do is not good ground for challenge to the array, as the rights of litigants can be fully protected by challenging the twice-drawn jurors on the ground that they have served as jurors within the previous year. How. Stat. § 7584.</p>

<p>Mortgage foreclosure — Equitable title.</p> <p>A father purchased 240 acres of land, and at his request it was stated in the deed, following the description, that the land was deeded to the father in trust for an infant son, naming him. The father made the down payment, and secured the balance of the purchase price by a mortgage on the land; after which he removed valuable timber, and at the time of the foreclosure of the mortgage was living on the land, of which he had had possession since the purchase. And in affirming an ordinary foreclosure decree, except as modified as to order of sale, the Court hold that no technicalities can be invoked in favor of the minor, who has no interest in the land except as a gift from his father, which must be subordinated to complainant’s lien, which certainly attaches to the premises as a vendor’s lien for the unpaid purchase money.</p>

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

(Edget, J.) Bill for relief from a contract on the ground of nonperformance by the defendant, and for the appointment of a receiver. Complainant appeals. The facts are stated in the opinion.

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

<p>Master and servant — Negligence—Fellow-servants—Directing verdict — Appeal.</p> <p>1. "Where the record does not purport to contain all or substantially all of the testimony taken on the trial, the Court will presume that the evidence introduced was sufficient to sustain the judgment; citing McGraw v. Insurance Go., 54 Mich. 146; Barnes v. Railway Go., Id. 243.</p> <p>2. In this case the plaintiff was a brakeman upon a logging railroad train, and was injured by the falling of a log from the center car of the train, which threw the car from the track. He testified that the falling of the log was the cause of the accident, and that he did not know whether the log was released because one of the stakes loosed or not. And it is held that if such was the case, and if the stake came out because carelessly put in, that carelessness was directly chargeable to plaintiff, who placed most of the logs, or to one of his fellow-trainmen; and that if the log was thrown off by the jolting of the car over the rough road, as claimed, the jolting was, under the testimony, aggravated by the high rate of speed of the train, contrary to the rules of the defendant, of which plaintiff had notice, which negligence was that of plaintiff’s fellow-servants, and chargeable to him; and that a verdict was properly directed for the defendant.</p>

<p>Railroad companies — Accident at crossing — Contributory negligence.</p> <p>A train standing upon a highway, with an engine attached, is of itself notice of danger; and, in the absence of a special assurance on the part of the railroad company to one desiring to cross between two cars, over the couplings, that he may safely do so, so far as any movement of the train is concerned, he assumes all risks incident to such an attempt.</p>

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

(Hosmer, J.) Bill for specific performance of contract for sale of land. Complainant appeals. The facts are stated in the opinion.

<p>Boundaries — Evidence—Deed—Surveys—Adverse possession.</p> <p>1. An objection to a deed on the ground that it purports to convey 43 acres of land, described by metes and bounds, being more than the grantor is shown to have owned at the time of its execution, is untenable, it being admitted that the grantor then owned 40 acres of the land.</p> <p>3. Where in describing land reference is had to a highway as one of the boundaries, the presumption is that the description refers to the highway as it existed upon the ground at the time the deed was executed, and not to the line as shown by the record of its survey in the proper office.</p> <p>3. In such a case the record is admissible, but becomes immaterial in the absence of proof that the road had been opened or was in use on the recorded line at the time the deed was made, or proof that no such highway as is referred to in the deed was then open or in use.</p> <p>4. It is proper for a surveyor who testifies to running out lines for the purpose of settling a disputed boundary to present a plat of his survey, which is admissible in evidence, and, if inaccurate, such fact may be shown by the opposite party, and the -question of its correctness is for the jury.</p> <p>5. Adverse possession is evidenced by the manner of the holding of the occupant, and not by the opinion of the neighborhood. So held, where a boundary line was established by the action of one of the land-owners in erecting a fence where he claimed it should run, which action was concurred in by the other, and adverse possession was thereafter maintained for the statutory period in reliance upon such action, which was sought to be defeated by evidence that it was a matter of common repute in the neighborhood that the fence was not on the true line; the admission of which evidence is held to have been error.</p>

(Daboll, J., presiding.) Bill to restrain the removal of certain mining machinery attached to leased premises. Complainant appeals. The facts are stated in the opinion.

<p>Contract — Logs and logging — Damages.</p> <p>1. Under a log-running contract between a boom company and a contractor, it was the duty of the company to run the logs down to the mouth of a river, emptying into a lake, where they were confined by means of a “ trip boom,” so called, and were.boomed out by the contractor by running a “bag boom,” so called, out into the lake, and opening the trip boom, and running out enough logs to fill the bag boom, which was tied up and towed across the lake, another bag boom being left at the mouth of the river to receive the logs from the trip boom* The contractor claimed that under the term “booming out” all he had to do was to swing the bag boom, open the trip boom, and keep men at the gap to run the logs out of the trip boom and jjack them into the bag boom; while the boom company contended that it was his duty to go up the river far enough to get the logs required to fill the bag boom, and sought to recoup damages for his failure so to do. The meaning of the term “ booming out,” as used in the contract, was left for the ■ jury to determine, who found in favor of the contractor, which finding is held to eliminate that claim of damage from the case, under the testimony.</p> <p>2. Where a boom of logs broke and the logs were scattered in a lake in the fall of the year, and on the refusal of the contractor to pick them up and deliver them to the boom company it gathered uj) a small portion of the logs at an expense of 91 cents per thousand feet above the contract price for their towing and delivery, such excessive cost being caused by the lateness of the season and the inclemency of the weather, and the boom company fails to show any damage growing out of the delay in the delivery of the remainder of the logs, which was made by the contractor the following spring, its action in attempting to gather up the logs cannot be justified, nor can it recoup, as damages, the expense thereby incurred in a suit by the contractor upon the contract.</p>

<p>Appeals from Saginaw. (Gage, J.)</p> <p>Bills to reform deeds. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Certiorari to recorder’s court of Detroit to review proceedings resulting in the conviction of respondent for violating a municipal ordinance prohibiting driving at a greater speed than sis miles an hour. (Chambers, J.)</p> <p>The facts are stated in the -opinion.</p>

<p>Equity — Bill to quiet title — Interest in subject-matter.</p> <p>Complainant filed a bill to remove a cloud from her title to certain land, which she afterwards conveyed by warranty deed, the grantee retaining §50 of the purchase price, to be paid when complainant cleared the title. The defendant answered upon the merits after the deed was recorded, and no question was raised as to the right1 of complainant to prosecute the suit after such conveyance until the hearing, upon which the right of complainant to the relief sought plainly appeared, and a decree was made accordingly; in affirming which it is held that the complainant had not parted with her whole interest in the subject-matter of the suit, and that, the defense being entirely technical, equity is best subserved by such affirmance.</p>

<p>Error to Tuscola. (Beach, J.)</p> <p>Information for larceny.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Kent. (Burch, J.)</p> <p>Information for rape.</p> <p>The facts necessary to a decision of the case are stated in the opinion.</p>

<p>Error to Kalamazoo. (Buck, J.)</p> <p>Debt. Plaintiff brings error.</p> <p>The facts necessary to a decision of the ease are stated in the opinion.</p>

<p>Justice of the peace — Adjournment of cause.</p> <p>After a mutual agreement for the adjournment of a case in justice’s court to a specified day and hour, the plaintiffs’ attorney obtained the consent of the attorneys for defendant by telephone to the extension of the time of adjournment for one day, which fact plaintiffs’ attorney communicated to the justice before the expiration of the hour allowed for the appearance of a defendant, and in the afternoon of the same day a . clerk of the defendant’s attorneys, who had appeared with the defendant when the agreement for the adjournment was first made, appeared before the justice, and stated that the case was •adjourned to the latter date; whereupon the justice changed his minutes of the adjournment accordingly. The same clerk •appeared before the justice on the day and hour to which the ■case was first agreed to be adjourned for the purpose of adjourning it as per the telephonic agreement, and was informed that such adjournment had been made. The plaintiffs appeared pursuant to said adjournment, and the defendant did not •appear, and judgment was rendered.in favor of the plaintiffs, which the circuit judge reversed on special appeal, which latter judgment is reversed, and a trial ordered upon the general •appeal, the Court holding:</p> <p>a — That the justice acted upon the consent of both parties in adjourning the case to the latter date, and would have been justified in so doing had the consent been in writing; citing Parmalee v. Loomis, 24 Mich. 242,.</p> <p>b — That consent given individually by the respective parties to. the justice, and where there is no dispute as to the fact of consent, is as efficacious to waive irregularity as if it were in writing.</p> <p>c — The defendant’s attorneys are not in a situation to question the authority of their clerk to consent to the latter adjournment.</p>

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

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

(Hosmer, J.) Contempt proceedings under How. Stat. chap. 256. Respondent appeals from order adjudging him guilty of contempt, which is modified and affirmed. The facts are stated in the opinion.

(Edget, J.) Bill to compel specific performance of a bond conditioned to convey real estate. Complainant appeals. The facts are stated in the opinion.

(Gage and Edget, JJ.) Bill to declare a deed to have been given as security, and to redeem. Complainant appeals. The facts are stated in the opinion.

<p>Arrest — Breach of the peace — Presence of the officer.</p> <p>1. In general terms, a breach of the peace is a violation of public order, a disturbance of the public tranquillity, by any act or conduct inciting to violence, or tending to provoke or excite others to break the peace. Quinn v. Heisel, 40 Mich. 576; Way’s Case, 41 Id. 299; People v. Bartz, 53 Td. 495; Davis v. Burgess, 54 Id. 514; Robison v. Miner, 68 Id. 549; Ware v. Circuit Judge, 75 Id. 492.</p> <p>2. To be intoxicated and yelling on the public streets of a village, in such a manner as to disturb the good order and tranquillity of the village, is an act of open violence, and a breach of the peace, which, if committed in the presence of an officer, will justify him in arresting the guilty party' without a warrant.</p> <p>3. To authorize an arrest without a warrant, the offense must be committed in the presence of the officer, and the arrest must be made immediately.</p> <p>4. A village marshal is not justified in making an arrest, without a warrant, of a party who has been guilty of a breach of the peace by shouting on the public streets while out of sight of the officer, who acts upon information received from a third person in making the arrest.</p> <p>[The points of counsel are stated in the opinion, where the authorities are cited. — Reporter.]</p>

<p>Criminal law — Liquor traffic — Minor in saloon — Acts of cleric or agent.</p> <p>1. It was evidently the intention of the Legislature, by the provisions of section 14 of Act No. 313, Laws of 1887 (3 How. Stat. § 2283d 7), to make the proprietor or keeper of a saloon liable for the acts of his clerk or agent in permitting any student in attendance at any public or private institution of learning in this State, or any minor, to play at cards, etc., in said saloon; but whether such proprietor or keeper can be made liable in a criminal prosecution for such act committed in his absence is not decided.</p> <p>2. The omission of the words “clerk or agent” from section 15 of Act No. 313, Laws of 1887 (3 How. Stat. § 2283d 8), which makes its unlawful for any person to allow any minor to visit or remain in any room where liquors are sold or kept for sale, unless accompanied by his or her father or other legal guardian, raises the presumption that the Legislature did not intend to make the proprietor of a saloon liable criminally for the act of his clerk or agent in violation of said section, committed in his absence, and without his knowledge or consent.</p> <p>3. Section 24 of Act No. 313, Laws of 1887 (3 Ho.w. Stat. § 2283e 7), making persons engaged in liquor selling, whether as owner or as clerk, agent, servant, or employé, equally liable as principals for any violation of the provisions of the act, and making any principal liable for the acts of his clerk, servant, agent, or employé amounting to such violation, was intended to enlarge the liability of the proprietors of saloons so as to extend it to the acts of servants, clerks, agents, or employés in civil, but not in criminal, actions.</p>

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

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

<p>Bills and notes — Pleading—Assumpsit—Common counts.</p> <p>1. In a suit by the payee in a judgment note, commenced by declaration, to which a copy of the note is annexed, with a notice that it constitutes the plaintiff's sole cause of action, the execution of the note need not be proved unless denied under oath.</p> <p>2. In such a ease the promise is to pay money, and its non-payment constitutes the sole breach, and a recovery may be had under the common counts, under which the contract is admissible in evidence.</p> <p>3. The admission of “for value received” in a judgment note is' prima facie sufficient to show that the promise ' contained in the note had an adequate consideration to support it.</p> <p>4. An instrument in form a promissory note, but which autnorizes a confession of judgment for the amount due thereon, with costs and the usual attorney’s fees, is not a promissory note, under the Michigan decisions; citing Bank v. Purdy, 56 Mich. 6; Altman v. Bittershofer, 68 Id. 287; Altman v. Fowler, 70'Id. 57; Wright v. Traver, 73 Id. 493; Bank v. Wheeler, 75 Id. 546.</p> <p>5. In each of the cases above cited the suit was brought by an indorsee of the instrument, who failed to recover because it was not a promissory note negotiable under the law-merchant, and the declaration failed to allege title in the plaintiff by assignment, the indorsement on the back of the contract being held insufficient to transfer title, or to operate as an assignment of the contract.</p>

<p>Error to Huron. (Beach, J.)</p> <p>Trespass for encroaching on a highway. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

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

<p>Deed — Condition—Breach—Support of parents.</p> <p>A deed from a father and mother to their daughter, containing the following clause immediately after the description of the land, namely: “This deed is given for the full support and care of parties of the first part during their natural life-time. Also said party of the second part shall pay all funeral expenses of parties of the first part,” — is held a conveyance upon condition, which was broken when the grantee abandoned the premises, of which she had taken possession and entered upon the performance of the condition; and that the retention of possession by the parents, and their subsequent conveyance of the land to their son on a similar condition, constituted a sufficient entry for the breach, and terminated the legal right of the daughter under the deed, whose equitable rights are held to have been barred by a settlement made with her parents after such breach.</p>

(Daboll, J.) Bill for specific performance of contract for purchase of land. Defendants- appeal. The facts are stated in the opinion.

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

<p>Transfer of cause — Discretion of commissioner.</p> <p>Where, on an application to a circuit court commissioner for the transfer of a cause on account of the disqualification of the circuit judge, a counter-application is presented asking for such removal, and both are within the statute, it is within the discretion of the commissioner to select the place of removal; and the convenience of the parties and the residence of witnesses are proper matters for his consideration.1</p>

(Hooker, J.) Case. Defendant brings error. The facts are stated in the opinion, and in the former report of .the case, found in 66 Mioh. 303.

<p>Mechanic’s lien — Appeal.</p> <p>The bill in this case was filed to enforce a mechanic’s lien, and the questions raised are questions of fact, and the conclusions of the circuit judge are not disturbed.</p>

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

<p>Error to Kent. (Burch, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion, and in 79 Mich. 236.</p>

<p>Criminal law — Rape—Indecent assault — Evidence,</p> <p>Where a respondent is informed against for the crime of rape, and is also charged in the same information, under Act No. 153, Laws of 1887 (3 How. Stat. §§ 9314b, 9314c), with having committed an indecent assault upon the same female, without committing or intending to commit the first-named crime, his conviction of the latter offense acquits him of the former, and, in the absence of a scintilla of evidence to warrant such conviction, the judgment entered thereon must be reversed, and the respondent discharged.</p>

<p>Appeal from Kent. (Grove, J.)</p> <p>Bill for specific performance of land contract. Complainant appeals.</p> <p>The facts -are stated in the opinion.</p>

<p>Deed — Covenant—Estoppel—Infants—Guardian’s sale — Jurisdiction —Foreclosure of mortgage — Set-off.</p> <p>1. Where, after the conveyance of land with covenants of warranty, it is discovered that minor heirs have an interest in the land adverse to the grantor, which interest is acquired by the grantor at ■ guardian’s sale, the title thus acquired inures to the benefit of his grantee, who can recover nothing more than nominal damages under said covenants.</p> <p>2. Where the probate court acquired jurisdiction to license the sale of real estate by a foreign guardian under How. Stat. § 6067 et seq., it is not perceived how the validity of the sale can be attacked in collateral proceedings by defendants who do not represent the minors, and when no one having a right to represent them is complaining of such sale, or of the proceedings by which it was consummated; citing Marvin v. Schilling, 12 Mich. 860; Griffin v. Johnson, 87 Id. 91; Ells-worth v. Hall, 48 Id. 407; Curtis v. Campbell, 54 Id. 340; Norman v. Olney, 64 Id. 559; Schaale v. Wasey, 70 Id. 414.</p>

<p>iSale — False representations — Principal and agent — Ratification— Assumpsit.</p> <p>1. The doctrine is settled in this State that if there was in fact a misrepresentation, though made innocently, and its deceptive influence was effective, the consequences to the injured party being as serious as though it had proceeded from a vicious purpose, he would have a right of action for the damages caused thereby, either at law or in equity. Holcomb v. Noble, 69 Mich. 896, and cases there cited.</p> <p>2. For the remaining questions ,of law decided, see the former opinion, reported in 78 Mich. 126, and Busch v. Wilcox, 82 Id. 886.</p>

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

(Chambers, J.) Respondents were convicted of a violation of a smoke ordinance of the city of Detroit. The facts are stated in the opinion.

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

<p>Libel and slander — Identity of person — Charge to jury.</p> <p>1. The publication of a statement that the party therein named, giving his street and number has been arrested for theft, is ubelous per se, and, if false, the person thus described is entitled to nominal damages, if no actual damages are proved.</p> <p>2. In such a case it is error to instruct the jury that, if from the evidence they believe another person of the same name was libeled, the plaintiff cannot recover; as under the evidence the article referred to the plaintiff, it describing him both by name and the number of the street where he resided.</p>

<p>Appeal from Clare. (Hart, J.)</p> <p>Bill to quiet title. Both parties appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Principal and agent — False imprisonment.</p> <p>Where, after the payment of a claim under an accident insurance policy, the insured is prosecuted criminally for obtaining the money under false pretenses upon the complaint of the State agent of the company, and upon his discharge sues the company for false imprisonment, and on the trial fails to show that the agent acted as such in making the complaint, or his authority so to act, or the ratification of his act by the company, and the agent testifies that he acted individually in making the complaint, there is no room for inference from the mere fact of agency that the agent represented the company in instituting the criminal proceeding, the burden being upon the plaintiff to show that fact.</p>

(Brevoorfc, J.) Bill to quiet title. Defendants McLeod appeal from an order denying their motion to set aside an order pro confesso. The facts are stated in the opinion.

<p>Garnishment — Glaim by third party — Husband and wife — Agency —Findings of foot.</p> <p>1. Findings of fact cannot be disturbed by the appellate court upon the ground that the weight of the evidence is against them, or because that court would have arrived at a different conclusion in passing upon the testimony. It is sufficient if there is some testimony tending to establish the facts as found.</p> <p>2. In this case it is held that there was some evidence tending to. support the finding that the claimant was the contracting party with the garnishee defendant, instead of her husband, who acted solely as her agent, and that she was entitled to the money due on said contract.</p>

<p>Appeal from Wayne. (Reilly, J.)</p> <p>Judgment creditor’s bill. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Fraud — Evidence—Answer to bill.</p> <p>1. A sworn answer is not conclusive, and, while treated as evidence, is subject to the same rules, as to weight, as any other evidence; citing How v. Camp, Walk. Ch, 427; Roberts v. Miles, 12 Mich. 297, 303.</p> <p>2. A denial of actual intent to defraud will not avoid the consequences of an act which is in effect a fraud.</p>

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

<p>Railroad companies — Construction of side track — Mortgage—After-acquired property — Conversion.</p> <p>Neither the mortgagee of a railroad, nor the purchaser under a foreclosure of the mortgage, acquires any lien upon or title to a side track built by the company upon adjoining land, under an agreement that it is to become the property of the landowner.</p>

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

<p>Appeal from Wavne. (Hosmer, J.)</p> <p>Bill to construe a will. Complainant appeals.</p> <p>The facts are stated in the' opinion.</p>

<p>Official bonds — Defenses.</p> <p>A bond voluntarily executed by a village treasurer upon the order of the village council, which it had the power to make, is not a nullity because the council failed to pass and have recorded formal resolutions requiring and approving the bond, nor can, the principal or sureties urge such neglect as a defense in a suit upon the bond.</p>

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

<p>Municipal corporations — Master and servant — Negligence.</p> <p>A city is not liable for the negligence of a contractor and his men while performing work in which the city is in no way interested, the relation of master and servant not existing between the parties.</p> <p>So held, where by an arrangement with the mayor of a city a contractor engaged in laying water pipe for the city laid such pipe from the street into adjoining college grounds, and the trench was left open and unguarded on said grounds, into which a traveler fell, and sued the city for the injuries sustained.</p>

(Lane, J.) Bill for divorce. Defendant appeals from an order adjudging him guilty of contempt in not paying alimony. The facts are stated in the opinion.

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

<p>Municipal corporations — Defective sidewalk — Contributory negligence.</p> <p>1. This Court has frequently held that knowledge of the existence of a defect is not conclusive evidence of the plaintiff’s negligence.</p> <p>2. It is not necessary, in a suit to recover damages for injuries received by reason of defects in a sidewalk, for the plaintiff to show that the municipality whose . duty it was to keep the walk in repair either constructed it or ordered its construction.1</p>

<p>Appeal ' from Wayne. (Beilly, J.)</p> <p>Bill to set aside a deed. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Torts— Bailment — Sunday contract — Pleading.</p> <p>1. It is the duty of an agister who takes horses for pasture to know their condition as to health; and if he has knowledge of the prevalence of a distemper among them of a contagious character, and fails to inform a customer of the fact, whose horse takes the distemper from contact with the diseased horses, in consequence of which the animal dies, the owner is entitled to recover its value in an action on the case, notwithstanding the contract for such pasturage is void because entered into on Sunday.</p> <p>2. How. Stat. § 2015, avoids Sunday contracts, which cannot be ratified upon a subsequent week-day; citing Adams v. Harnett, 2 Doug. 73; Tualcer v. Moiorey, 12 Mich. 378; Winfield v. Dodge, 45 Id. 355; Brazee v. Bryant, 50 Id. 141; Railroad Co. v. Chappell, 56 Id. 194.</p> <p>3. Declarations in justices’ courts are to be liberally construed, and, though informal, when they fairly apprise the defendant of the claim made against him, may be held sufficient; citing Wilcox v. Railroad Co., 43 Mich. 584; Fletcher v. Bradford, 45 Id. 349.</p> <p>4. A declaration in a plea of trespass on the case, claiming §100 damages, and, while informal, evidently intended by the pleader to claim damages for defendant’s wrongful act in permitting plaintiff’s horse to be turned into a pasture, with knowledge of the existence of disease among the other horses therein, is held a declaration in case, and not assumpsit.</p>

(Lane, J.) Ejectment. Defendant brings error. The facts are stated in the opinion, and in the former reports of the case.

(Burch, J.) Petition for appointment of administrator. Contestant brings error from judgment affirming order of probate court. The' facts are stated in the opinion.

<p>Certiorari to review proceedings resulting in an order declaring petitioner’s appointment as guardian of an</p> <p>alleged incompetent person void.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Eelator applied for mandamus to compel respondent to approve a plat of certain land, and to vacate the approval ■of a plat of adjoining lands. The facts are stated in the •opinion.

(Grove, J.) Bill to foreclose a mortgage. Defendants Heth and Laura A. Clay appeal from a conditional order for resale. Order modified by eliminating conditions, and affirmed. The facts are stated in the opinion, and in head-note 2.

Mandamus. Relator applied for mandamus to compel the drawing of an order in his favor for salary as an alderman of the Fifth ward of Bay City. The facts are sufficiently stated in the opinion.

Mandamus. Relator applied for order to show cause why mandamus should not issue to compel respondent to allow him to file an answer to the petition of the Auditor General for sale of delinquent tax lands. The facts are sufficiently stated in the opinion.

<p>Appeal from Mackinac. (Steere, J.)</p> <p>Bill to foreclose a mortgage. Defendant Mary E. Franks appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Quitclaim deed — Failure of title — Parol evidence.</p> <p>A quitclaim deed conveys only the grantor’s interest,1 and the grantee cannot change its terms by proof of a contemporaneous verbal agreement by which the grantor was to refund a proportionate share of the purchase price in case of the failure of the title to ten acres of the land then in dispute, and which afterwards failed.</p>

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

(Newton, J.) Respondent was convicted of burglary, and sentenced to the State House of Correction and Reformatory at Ionia for five years. The facts are stated in the opinion. •

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

<p>Error to G-ogebie. (Daboll, J., presiding.')</p> <p>Assumpsit. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

(Hosmer, J.) The administrator brings error from the judgment of the circuit court allowing a claim against the estate on appeal. The facts are stated in the opinion.

(Buck, J.) Respondents were convicted of burglary, and sentenced to the State House of Correction and Reformatory at Ionia. The facts are stated in the opinion.

Exceptions before judgment from Ingham. (Peck, J.) Respondent was informed against for an assault with intent to do great bodily harm less than the crime of murder, and was convicted of a simple assault. The facts are stated in the opinion, and in foot-notes. ■

Exceptions before judgment from Ionia. (Smith, J.) Eespondent was convicted of a violation of the pharmacy law. The facts are stated in the opinion.

Certiorari in aid of writ of error to Allegan. (Arnold, •J.) ■Respondent was convicted of receiving stolen property, etc., and sentenced to State prison. The facts are stated in the opinion and foot-note.

Exceptions before judgment from Wayne. (Hosmer, J.) Bespondent was convicted of engaging in the business of selling liquors without having paid the tax required by Act No. 313, Laws of 1887. Conviction reversed, and new trial ordered. The facts are stated in the opinion.

Exceptions before judgment from Wayne. (Reilly, J.) Respondent was convicted of murder in the first degree. The facts are stated in the opinion.

Information in tbe nature of a quo warranto to test the title of respondent to the office of chief of police of West Bay City. The facts are stated in the opinion.

(Reilly, J.) Bill to construe a will. The defendant Emily D. R. Stebbins appeals. The facts are stated in the opinion. Hoyt Post, for complainant, G. I. Walker, for defendant American Missionary Association, and Walker & Walker, for defendant Harper Hospital, unite in one brief, and contend for the doctrine of the opinion.

<p>Voluntary associations — Action—Parties—Pleading.</p> <p>1. The main question in this ease is whether, under the general laws governing the Ancient Order of Foresters, the trustees for the subsidiary high court are authorized to maintain an action for money claimed to be in an ex-treasurer’s hands, without showing his refusal to pay over the same on presentation to-him of an order therefor pursuant to the laws of the society; which question is decided in the negative, the only evidence of a refusal to pay pursuant to any authority being his refusal to mate such payment to the secretary of the subsidiary high court, who demanded such payment pursuant to a resolution of the executive council, but presented no order as required by the laws of the society, and the evidence failing to show that the subsidiary high court authorized the bringing of such suit.</p> <p>2. The appellate court will regard an amendment to a declaration as having been made after judgment which might have been made before on motion, under the authority of I-Iow. Stat. § 7636.</p> <p>So held, where the trustees of an unincorporated benevolent society, in a suit against the’treasurer intended to be brought in their repi'esentative capacity, inserted in a common-count declaration after their names the words, “trustees, for the use and benefit of” the society, naming it, and in the several counts the promises of the defendant were averred to have been made to plaintiffs. Error was assigned upon the refusal of the court to exclude all of the plaintiffs’ testimony on the ground that the added words were merely descriptive, and that the suit was therefore prosecuted in plaintiffs’ individual capacity; which assignment is held untenable, the objection being one which could have been obviated by amendment by inserting the word “as” before the word “trustees,” and by corresponding amendments in the counts of the declaration.</p> <p>'8. No member or number of members of an unincorporated society can maintain a suit for its benefit to enforce a contract made in its name or for its benefit, or for property belonging to the society, unless there is some warrant or authority for such action on their part in the organization of the society, and the terms and conditions of the agreement by which its members are united.</p>

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

<p>Error to Ingham. (Peck, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion, and in a former opinion, reported in 75 Mich. 414.</p>

<p>Municipal corporations — Public improvements — Contract—Fraud— Equity — Acceptance of work — Discretion of officers.</p> <p>■ 1. Where a city, acting through its authorized agents, lets a contract for a public improvement for a grossly extravagant price, or permits fictitious items to be included in the sum to collect which an assessment is levied, a fraud is perpetrated upon the property-owners, which may call upon a court of equity to interfere and vacate the assessments, or reduce the amount which the complainants should pay; citing In re Livingston, 131 N. Y. 94.</p> <p>2. This Court has' never interfered with the discretion of the authorized agents of municipalities in the exercise of the powers granted by the Legislature, except when there was a want of jurisdiction in the proceedings.</p> <p>3. It is no defense to the enforcement of an assessment for a public improvement that the work and material were not such as the contract called for; citing Motz v. Detroit, 18 Mich. 515; Cooley, Tax’n, 671.</p>

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

<p>Fire insurance — Facts not establishing contract.</p> <p>A manufacturing firm applied verbally to an insurance broker for insurance, who had a conversation with an attorney engaged in making collections for an insurance company, but who was not its agent or authorized to make contracts of insurance, about insuring the applicants’ property. The attorney took a memorandum of the proposed risk in pencil, as he obtained it from the broker, and either gave it or showed it to the secretary and agent of the company at its office, after which he wrote to the broker, inclosing an application partially filled out, and which contained a blank space in which to state the day from which the applicants desired the policy to run. He signed the name of the secretary to this letter, in which it was stated that the application could not be completed or policy sent for want of knowledge of the applicants’ names, and the broker was requested to complete the application, and return it, and the policy would be sent. The broker sent the application to the applicants, who filled it out, excepting as to the date from which the policy was to run, and it was returned to the company by the broker, and upon examination by the secretary was marked as rejected. Two or three days after-wards the property was destroyed by fire, and in a suit to recover the insurance it is held:</p> <p>a — That the sending and retention of the application did not constitute a contract of insurance.</p> <p>b — That the contention of the applicants that the letter containing the application was a proposition from the company to insure, which was accepted by the applicants by filling out and returning the application, is untenable.</p> <p>c — That the applicants could not have been compelled,to pay the premium until the delivery of the policy, and had not become members of the company.</p>

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

<p>Behearing, upon application of complainant, of case reported in 84 Mich. 185.</p>

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

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

<p>Fraudulent conveyances — Chattel mortgage — Evidence—Conversion —Measure of damages.</p> <p>1. Parties who take security from insolvents, or from persons who are indebted to others, must act in good faith, and in such a manner as not unnecessarily to hinder, delay, or deceive other creditors; and taking a mortgage for an amount in excess of the debt or of the assumed liability is a badge of fraud, and is a fraud in law if the purpose is to protect the mortgagor’s interest from other creditors; citing King v. Hiibbell, 43 Mich. 597.</p> <p>3. The honesty of one of two mortgagees will not save the mortgage, if there was any fraud or wrong in the other; citing Adams v. Niemann, 46 Mich. 135.</p> <p>3. Parol testimony is admissible to show to whom a deed or mortgage ran, and, if material, in whose custody the instruments were placed; citing Clemens v. Conrad, 19 Mich. 170.</p> <p>4. The measure of damages in a trover suit brought by a mortgagee against an attaching creditor is the market value of the property at time of its seizure, not exceeding, however, the amount of the mortgage lien.</p> <p>5. Invoices of goods show their cost, rather than value, and are not the best evidence of the market value of the goods.</p> <p>6. In this case it is held that the market value of a general stock of drugs is the cost of replacing it with a like stock at the time of its seizure, and not what it could be sold for as a whole to an occasional purchaser, who would buy only because he saw a large margin in the purchase.</p> <p>7. A witness who testifies that he has been in the drug business for a number of years, -and is very familiar with a stock of drugs, which he assisted in inventorying at time of their purchase, and is acquainted with the value of such goods, is competent to testify as to their- market value.</p>

<p>Eehearing, upon application of defendants, of casa reported in 84 Mich. 54.</p>

<p>Partnership — Profit-sharing—Construction of contract.</p> <p>1. While an agreement to share in the profits of a venture will not constitute a partnership as between the parties if contrary to their intention that there should be no such relation, it is strong evidence of the intent, and sufficient, where there is a community of interests and capital, to establish such relation, unless rebutted by satisfactory evidence.</p> <p>2. An agreement by which one of the parties is to furnish money for the purchase of a certain tract of timbered land and of certain standing timber, and the other is to manufacture the timber into lumber and shingles, and, after the sale of the land and manufactured products, the proceeds remaining, after payment of the expense of manufacture and sale and the repayment of the money so advanced with interest, are to be equally divided between the parties, constitutes them copartners in the special venture.</p>

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

<p>Written instrument — Materiality of alteration — Agency—Bond.</p> <p>1. A material alteration, made by the agent of one of the contracting parties without express or 'impliéd authority, will not avoid the contract; citing 1 Amer. & Eng. Cyc. Law, 505.</p> <p>2. The insertion in the formal part of a bond, the penalty and conditions of which are fixed by its terms, of a promise to pay ten per cent, attorney’s fees in case of suit on the bond, is an immaterial alteration, such promise being no part of the penalty, nor affecting the judgment to be rendered in case of suit, nor the amount of damages to be assessed.</p>

Error, to Wayne. (Brevoort, J.) Appeal from the disallowance of a claim by the commissioners on claims. Plaintiff brings error. The facts are stated in the opinion.

<p>Appeal from Kent. (Grove, J.)</p> <p>Bill to foreclose a mortgage. Defendant appeals.</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>

(Chambers, J.) Defendants were convicted of a violation of an ordinance of the city of Detroit providing a uniform weight of a loaf of bread. The facts are stated in the opinion.

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

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

<p>Municipal corporations — Defective bridge — Liability—Notice— Evidence.</p> <p>1. In a negligence case for injuries sustained by reason of the breaking of a bridge, statements of the overseer of highways at the time of the accident, made some 18 months thereafter, that “he had not regarded the bridge as safe,” are inadmissible, under the rule laid down in Stebbins v. Township of Keene, 55 Mich. 552.</p> <p>:2. While the age of a bridge may suggest probable infirmity, and impose the duty of inspection upon a township, and its condition may be such as to charge the township with knowledge, yet it cannot be charged with knowledge or notice in the absence of anything suggestive of weakness, and in spite of the lack of knowledge of or notice to either its agents or the general public of such weakness, while at the same time positive acts on the part of the township are shown indicating proper care and careful inspection.</p>

<p>Railroad companies — Liability for loss by fire — Evidence— Improved appliances.</p> <p>1. Testimony cannot be said to be undisputed, when inconsistent, with some established fact in the case, or one regarding which testimony has been admitted.</p> <p>So held, where in a negligence case against a railroad company to recover the value of buildings destroyed by fire, alleged to have been caused by sparks thrown from defendant’s engine, the uncontradicted testimony on the part of the defendant tended to show that the machinery, smoke-stack,, and fire-box of the engine were in good order, and properly managed, and of the most approved kind, and that the engineer and fireman were competent and skillful; which facts it was claimed by the defendant should have been treated as. established, and a verdict directed in its favor. And it is held that the court very properly declined to take the case from '■ the jury, or to pass upon the conclusiveness of the testimony-' offered by the defendant.</p> <p>3. How. Stat. § 3378, making railroad companies liable for all loss or damage to property by fire originating from its engines, unless proof is made to the satisfaction of the jury that the machinery, smoke-stack, or fire-boxes of such engines were in good order and properly managed, contemplates the communication of fire, and consequent loss and damage, notwithstanding the exercise of prudence and care in the selection of appliances and in the management and operation of trains; and it. fixes the standard of condition and management, but does not attempt to establish a standard of kind or quality of appliances.</p> <p>3. Before a railroad company can be made liable by reason of its failure to adopt other appliances, they must be shown to have been well and popularly known, and their efficiency must., have been demonstrated by actual use.</p> <p>4. Where, in a suit against a railroad company .to recover the-value of buildings destroyed by fire communicated from its engine, it appears that the buildings were insured, and that the loss has been paid to the plaintiff, evidence of the amount paid is immaterial; the question being ruled by Perrott v. Shearer, 17 Mich. 48, 55.</p> <p>5. It must be conceded that in operating a railroad it becomes necessary, at times, to make time between given points, and the running of a freight train at the rate of 40 miles an hour for this purpose is not in itself negligence.</p> <p>6. In this case the following instructions should have been given to the jury, and their refusal was error:</p> <p>“ a — You are to consider that the necessity of running railroad cars with regularity and uniformity is not a matter of convenience merely, but the business cannot be done at all unless calculations are made upon the movements of trains. The risks attendant upon a disturbance of that regularity are risks of human life, and not mere business delays, and it would be in the highest degree dangerous to make the movements of the cars vary with the wind and weather.</p> <p>“5 — The engineer and fireman, in managing the train, are at liberty, and it is, their duty, to run their train as nearly on time as possible;, and in case of a way freight, whose length of stops at the stations is necessarily irregular, they are not to be considered negligent by reason of using natural and reasonable means to make time.”</p> <p>[The points of counsel are fully stated in the opinion. —Reporter.]</p>

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

<p>Partnership — Accommodation indorsement— Verdict.</p> <p>The question involved in this case is the liability of one of three partners upon an accommodation indorsement of a note in the firm name, made by another partner with the knowledge of the third. It was shown that other like indorsements had been made for the same maker, and that he had made and also indorsed paper for the accommodation of the firm, for the purpose of showing the knowledge or assent of the third partner ¿to the indorsement in question. The jury, in answer to special ■ questions, found a want of such knowledge or assent on his part, and answered that they were unable to find whether he authorized his partners to sign the firm name as accommoda■tion indorsers to promissory notes for third parties, although ■instructed that they might infer such fact from the facts •shown, and rendered a general verdict for the plaintiff.</p> <p>1. Mr. Justice Long filed an opinion, concurred in by Morse, J., holding:</p> <p>a — As a general rule, if a party takes negotiable paper Indorsed by one partner in the firm name, knowing that it was indorsed mei'ely as a surety, he does so at his peril, and cannot charge the members of the firm who did not assent to the transaction.</p> <p>6 — The possession of the note by the maker after such indorsement is sufficient to charge a bank which discounts it with notice that it is an accommodation indorsement, and the payment of the avails to the maker is evidence that the transaction was purely in his interest.</p> <p>c — In such a case a legal presumption arises against the assent of all of the partners to such use of the firm name, and the burden of proving it is cast upon.the bank, which assent may be shown by the circumstances of the case.</p> <p>d — In this case, the jury having been directed that they could infer such consent from the facts shown, and not having done so, there is nothing upon which the general verdict can rest, and it amounts to a mistrial.</p> <p>e — It is error for the court to direct the jury that their answers to special questions must agree with their general verdict.</p> <p>2. Champlin, G. J., and McGrath, J., concurred in a reversal, on the ground that the appellant, William H. Barnes, is not liable under the facts proven, and that the judgment should have been in his favor.</p>

<p>Error to Cass. (O’Hara, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Chattel mortgage — Failure to file — Rights of subsequent mortgagee —Payment.</p> <p>1. A creditor who has the right to secure a lien by legal process superior to that of a chattel mortgage then on file, because his debt was contracted while the mortgage was withheld from record, may obtain a like lien by the execution to him by the debtor of a chattel mortgage to secure the same indebtedness after the filing of the first mortgage.</p> <p>2. A note and mortgage given for an existing indebtedness will be presumed to have been taken as security, and not as payment, in the absence of a contrary showing.</p> <p>[The points of counsel are fully stated in the opinion, where the authorities are reviewed. — Beporter.]</p>