Volume 87 — Michigan Reports

(Lane, J.) Bill to set aside an exchange of real estate for mortgages for alleged fraud in the transfer. The facts are stated in the opinion.

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

<p>Error to "Wayne. (Brevoort, J.)</p> <p>Assumpsiti Defendant brings error.</p> <p>The facts are stated in the opinions.</p>

<p>Landlord and, tenant — Agreement for a lease — Tenancy at will— Yearly holding — Notice.</p> <p>1. The relation of general tenancy at will cannot be terminated by either party without notice to the other; and the tenant cannot, without justifiable cause, abandon the premises, and treat it as a surrender, without giving the notice required by the statute.</p> <p>2. A tenant at will, until the tenancy is legally terminated by notice, is bound to pay for the use and occupation, and the mere vacating of the premises during the term, or while the tenancy exists, will not exonerate him from such payment.</p> <p>S. Where the purchaser of a stock of goods went into possession of the store building in which they were contained under a verbal agreement with the owner to execute to the purchaser a written lease of the premises for a term of one year, with the privilege of three or five years, at an agreed yearly rental, payable in monthly installments, which lease the .purchaser agreed to accept and enter into, and without any other agreement or understanding occupied the store for two months, and paid the stipulated rent, such action is held to have converted the holding into a tenancy of one year at all events, with an additional term, depending 'upon the election of the lessee, as to which he was a tenant at will from year to year.</p> <p>[The points of counsel are stated in the opinion, where the authorities are discussed.- — Reporter.]</p>

<p>Will — Life-estate— Vested legacy — Condition.</p> <p>1. A wife, after providing a life-support for her husband from the income, and, if necessary, by the use of her entire estate, bequeathed $500 of the residue to his niece, in consideration of her care and assistance towards the testatrix and her husband, to be performed ditring their natural lives; which provision is held not to be in terms a condition, but rather an expression of the reason or inducement for the legacy, which vested on the death of the testatrix, subject to being divested in case the entire estate was required for the husband’s support.</p> <p>2. A wife willed her entire estate to her husband, for and during his natural life-time, to be used by him in defraying his necessary expenses, and provided that, if the income was-insufficient for that purpose, he might use so much of the principal as might be necessary, and that, if; there was any property left after paying said expenses, certain legacies should be paid therefrom, and the remainder, if any, was bequeathed to a daughter. And it is held that the husband did not take the whole estate absolutely at the death of the testatrix:, but a life-support, to be furnished from the income, if sufficient, and, if not, by the use of so much of the principal as might be necessary for that purpose.</p>

<p>Summons — Issue in blank.</p> <p>There is no reason why the mere filling out of a summons by an attorney after it is signed and sealed by the clerk, where no abuse is shown, should vitiate the writ.</p>

<p>Husband and wife — Ownership of wearing apparel.</p> <p>A husband has a sufficient title to the wearing apparel purchased by his wife with his money to enable him to maintain replevin against an officer who seizes it upon a tax warrant in satisfaction of a tax assessed against the wife upon her separate property.</p>

(Moore, J.) Bill to reform a mortgage* and to foreclose the same. Defendant Washington I. Taylor appeals from order overruling demurrer. The facts are stated in the opinion.

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

<p>Appeal from Kent. (Grove, J.)</p> <p>Bill for an accounting, and for a receiver. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

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

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

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

Mandamus. Relator applied for mandamus to compel respondent to proceed ■with the wprk of paving certain streets in 'the city of Grand Rapids. The facts are stated in the opinion,

<p>Married luomen — Promissory note — Separate estate.</p> <p>1. A note given by a husband and wife, for .a loan made and used for his benefit, is void as to the wife, in the absence of representations by her that it is made for hei\ use and benefit.</p> <p>2. The fact that the husband asked for th'e loan as the agent of his wife is immaterial, in view of the fact that the lender knowingly took the note of both, as he will be charged with knowledge of the law voiding such-a note as to the wife unless valid for reasons stated in former head-note.</p>

<p>Contract — Parol evidence — Rescission.</p> <p>1. Where a written memorandum or agreement does not contain the entire contract between the parties,, prior and contemporaneous agreements and conversations may be shown in order to prove what the whole contract was.</p> <p>2. Where a contract not required by the statute of frauds to be in writing to be binding rests partly in writing and partly in parol, the whole is regarded as a parol agreement, and may be proved by oral testimony, and the jury are to determine its terms from the whole testimony. In such a case the writing is competent evidence to prove the terms of the contract, so far as they are expressed therein, and may be regarded as admissions of the facts, and, indeed, the best evidence of the facts, so stated therein.</p> <p>3. In a suit to recover damages for being prevented from performing a contract, it is incumbent upon the plaintiff to make out the contract alleged in his declaration, and the burden is upon him to show performance, or, in default, that the defendant wrongfully prevented such performance.</p> <p>4. Where one party has departed from a special contract for the delivery of specific articles from each to the other, the other party may treat it as rescinded; and if, by the terms of the contract, concurrent acts are to be performed, as to the delivery of property by one party and the payment of the price by the other, if either party refuses performance the other may treat the contract as abandoned, and justify rescission under it.</p>

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

<p>Intoxicating liquors — Givil damage act — Evidence.</p> <p>1. In a suit by a wife against a saloon-keeper and his bondsmen to recover damages sustained by reason of the killing of her husband by an intoxicated person, alleged to have procured his liquor of the defendant saloon-keeper, evidence showing that the slayer of the husband was a person in the habit of becoming intoxicated is admissible for the purpose of showing that the sale of the liquor was unlawful.</p> <p>2. Where the evidence in such a case is contradictory as to which party to the affray was the aggressor, the question should be submitted to the jury.</p> <p>3. It is not for the plaintiff to produce proof, or for the jury to speculate, upon the probabilities whether the intoxication of the husband’s slayer was the natural cause of the killing. The act itself fixes defendant’s liability, if the sale of the liquor was wrongful.'</p>

(Moore, J.) Bill to declare a deed to have been given as security, and for’ other relief. Complainants appeal. The facts are stated in'the opinion.

<p>Master and servant — Injury to employé — Contributory negligence.</p> <p>An employé who, with knowledge of the fractious disposition of a horse', drives him within five feet of a moving locomotive, from which steam is escaping, is guilty of such contributory negligence as will defeat a recovery for injuries sustained by reason of the consequent frightening of the horse.</p>

(Hosmer, J.) Bill to set aside a deed alleged to have been executed to enable complainant to obtain a loan. Defendant appeals. The facts are stated in the opinion.

Mandamus. , Relator applied for mandamus to compel respondent to-enter an order nunc pro tunc. The facts are stated in the opinion.

<p>Slander — Words actionable per se — Professional character,</p> <p>1. Spoken words are defamatory without allegation of special damages when the imputation cast by them on the plaintiff is so injurious that the court will presume without proof that his reputation has thereby been impaired; which presumption will arise when the words are spoken of plaintiff in the way of his profession.</p> <p>2. The words, “You are the dirty sewer through which all the slums of this embezzlement have flowed,” addressed to an attorney at law who is at the time conducting the defense of a client charged with such embezzlement, are actionable per se, if shown by the plaintiff to have been spoken of and concerning him in the way of his profession or employment.</p> <p>[The points of counsel are stated in the opinion, where the authorities are cited. — Reporter].</p>

<p>Corporations — Subscription to stock — Revocation.</p> <p>1. A subscription paper by which the subscribers “promise to pay the trustees of the hotel to be built at St. Joseph [their place of residence] the sums set opposite our names, to be taken as stock, .§35 per share,” is insufficient in and of itself to form a contract.</p> <p>3. Two of said subscribers, upon being presented with a more formal paper, refused to sign it, and repudiated their existing subscription, after which a corporation was organized and the hotel erected with full knowledge of the refusal by said subscribers to pay their subscription, which the corporation sought to recover by suit. On the trial it was shown by parol testimony that the hotel was not such an one as was contemplated by the signers of the original subscription paper, and that it failed to meet in many particulars the representations made to the defendants to obtain their subscription. And it is held that the court properly directed a verdict in defendants’ favor.</p>

<p>Garnishment — Trial of issue — Amount due.</p> <p>1. A disclosure admitting an indebtedness to the principal defendant of §1,717.28, unless the garnishees had become liable to other parties upon certain orders drawn upon them by the principal defendant, aggregating $2,800, is sufficient to enable the plaintiff to demand a trial of the statutory issue thus framed, under How. Stat. § 8068.</p> <p>2. The question in this case is whether the indebtedness referred to in the disclosure was due at the time of the trial; and it is held that under the evidence a verdict was properly directed against the garnishee defendants.</p>

<p>• Sale — Passing of title — Payment.</p> <p>The lessee of a flouring-mill agreed to furnish certain machinery to be used therein during the continuance of the lease, which machinery was. not to be removed if the lessors paid the lessee the purchase price. During the life of the lease the lessee mortgaged the machinery, and after its expiration agreed to apply certain indebtedness due the lessors upon the purchase price of the machinery, and to receive the balance in performance of the non-removal condition in the lease. The lessee executed a bill of sale of the machinery to the lessors, in which he stated that it was free from incumbrance, and the vendees tendered him his past-due note given to a third party, upon which they had indorsed the said balance, in payment thereof, which note the lessee refused to accept, and the mortgagee replevied the machinery from the vendees after a demand and refusal. And it is held that the payment or tender of the balance of the purchase price was a condition precedent to the passing of title, and that the tender of the note was not a performance of said condition, nor binding upon the lessee or his mortgagee, and that a verdict was properly directed in ■ favor of the plaintiff.</p>

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

<p>Appeal from Barry. (Hooker, Jv</p> <p>Bill to set aside a deed because of the mental incompetency of the grantor. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Bailment — IAabilty of bailee — Conversion—Measure of damages —Error without prejudice — Revival of suit by executor.</p> <p>1. A stock-broker who receives a certificate of stock from the owner for safe-keeping, which he fails to deliver on demand, having delivered it to the officers of the corporation without the consent of the owner, who have canceled it, is guilty of its conversion, regardless of his intention in the premises.</p> <p>2. The court instructed the jury that the measure of damages would be the value of the stock when the owner received notice of its conversion, with interest, and all dividends paid on the stock from the time of its delivery to the broker up to the date of said notice, with interest from the dates when they were payable, which instruction was excepted to by the defendant, who contended that plaintiff could only recover the highest price reached by the stock within a reasonable time after plaintiff learned of its conversion, and within which he could go into the market and repurchase it. And it is held that, as the application of the latter rule would not decrease the judgment under the established facts, no error is seen in the case, and the judgment is affirmed.</p> <p>8. Where a non-resident defendant dies after the entry of judgment, and the suit is revived in the name of an executor, who is appointed on the probate of defendant’s will in this State, and removes the judgment by writ-of error to this Court for review, an objection that the executor has no standing in. Court, it not appearing that the testator had any property in this State, is untenable, the question being ruled by In re MeCarty, 81 Mich. 460.</p>

(Hooker, J.) Proceedings to enforce the individual liability of a-stockholder. Defendant brings error. The facts are stated in the opinion.

<p>Bills and notes — Surety—Parol evidence — Consideration.</p> <p>1. A joint maker of a promissory note cannot limit his liability to that of an indorser by parol testimony that he signed as a surety, and that, by an agreement with the agent of the payee who took the note, he was to be released unless notified of its non-payment.</p> <p>2. Where a mortgagor, in order to secure the release ^ of the property and further time, gives the mortgagee his promissory note for the debt, which is signed by a third party at his request before its delivery, there is a sufficient consideration to hold both the maker and the surety.</p>

Mandamus. Relator applied for mandamus to compel the respondent to allow the township of Thomastown a certain credit, and to provide for its payment. The facts are stated in the opinion.

Oertiorari to township board to review proceedings laying ont a highway on an appeal from the highway commissioner. The facts are stated in the opinion.

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

(G-rove, J.) Bill to reform a deed, and enjoin the collection of a judgment recovered in an action for breach of its covenants of title. Complainant appeals. The facts are stated in the opinion.

(Smith, J.) Assumpsit. Defendants bring error. Judgment entered in Supreme Court for a portion of the claim for .which plaintiff had judgment below. The facts are stated in the opinion.

<p>Partnership — Agency—Logging contract — Recoupment.</p> <p>1. A provision, in copartnership articles for the appointment of the-husband of one of the partners as her agent, with like powers as she might exercise were the appointment not made, and that the husband shall devote his time and services to the business of the firm, in lieu of those of his wife, clothes him with the general authority of a partner.</p> <p>2. In the absence of any express agreement, a logging contractor is not liable for costs incurred by the log-owners in defending against an illegal claim of a hen under the log-lien act.</p>

<p>Master and servant — Negligence—Injury to employe — Vice-principal ' —Evidence.</p> <p>1. The question of the negligence of a railroad company in directing, by its assistant road-master, its sectionmen to load steel rails lying along the track onto moving flat-cars, should have been submitted to the jury, under the circumstances of this case.</p> <p>2. It was error to refuse to permit the plaintiff to show how many of the sectionmen thus employed had had no experience in that particular kind of work, the severity of the work, whether any of the men gave out before the accident to plaintiff, whether plaintiff could see the rail before it hit him, and that loading the rails onto moving cars was more dangerous than upon stationary cars.</p>

Rehearing, upon application of plaintiff, of case reported ' in 83 Mich. 165. The facts are stated in the former opinion, which is overruled.

<p>Chattel-mortgaged property — Execution—Replevin—Payment— Appraisals — Evidence.</p> <p>1. Chattel-mortgaged goods were replevied from attaching creditor» by the mortgagees before the completion of an inventory, and on the trial the defendants claimed the right to recover on the-ground that the attachment was made- subject to the mortgages, which were admitted to be valid, and that defendant» had the right to the joint possession' of the goods until the inventory was completed, and also on the ground that the mortgages were being fraudulently used to defeat the claims of other creditors. And it is held that the defenses were-antagonistic, and that evidence of such fraudulent use of the mortgages was properly excluded.</p> <p>2. A question whether or not a demand was made at a stated time for the joint possession of chattel-mortgaged property is not objectionable as calling for the conclusion of the witness-</p> <p>3. Evidence of the disposition made of chattel-mortgaged property; after its replevin by the mortgagee is immaterial to the issue,, the rights of the parties being fixed by the situation at the, time the writ issued; citing Merrill v. Denton, 73 Mich. 628-</p> <p>4. Where after the replevin of a stock of goods from a sheriff; who has seized the same under an^attachment, he levies other attachments upon the goods, the appraisals made in the later suits are admissible as tending to show the value of the goods, in connection with evidence tending to show that there had been no material change in the goods since they were replevied.</p> <p>6. The contention that a sheriff who attaches chattel-mortgaged property cannot be disturbed in his possession by the mortgagee until an inventory is completed, after which he has the right to fix the character of his levy, and whether in opposition or subject to the mortgage, has been settled in the negative in Merrill v. Denton, 78 Mich. 634, 635.</p> <p>6. An instruction that, if a sheriff levied an attachment upon a stock of goods subject to a chattel mortgage, he cannot recover in a replevin suit brought by the mortgagee unless the value of the goods exceeds the amount of the mortgage, is sustained.</p> <p>7. "Where a mortgagee is entitled to the possession of the mortgaged property, as against attaching creditors, at the time he replevies it, the after payment of his mortgage by a second mortgagee will not affect his right to a judgment against the defendants.</p> <p>8. The attachment of chattel-mortgaged property in opposition to the mortgage, and the refusal of the officer to admit the mortgagees to a joint possession, justifies them in demanding possession under the insecurity clause in their mortgage, whether the debt secured thereby is due or not clue.</p> <p>9. Evidence of the estimate of value placed upon a stock of chattel-mortgaged goods by the owner and mortgagor is inadmissible in a suit between the mortgagees and the mortgagor’s attaching creditors.</p>

(Cobb, J.) Attachment under log-lien law of 1887. Defendant log-owners bring error. The facts are stated in the opinion.

(Cobb, J.) Attachment under log-lien law of 1887. Defendant log-owners bring error. The facts are stated in Federspiel v. Johnstone, ante, 303.

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

<p>label and slander — Words actionable per se — Mitigation of damages — Error without prejudice.</p> <p>1. In a libel suit it appeared that the article complained of was libelous per se, and the malice of the defendant plainly appeared from the face of the publication. And it is held that the failure of the court to instruct the jury to consider, as affecting the question of exemplary damages, the claim of the defendant, supported by his testimony, that he was informed prior to publishing the article that the charges therein made were true, as showing his good faith, was non-prejudicial error; it appearing that the jury were instructed to consider the mitigating circumstances in the case, which were only shown by said testimony.</p> <p>2. A publication alleging that a member of the board of supervisors charged a co-member during a meeting of the board with being a liar, a thief, and a perjurer, and stated that he could prove it, is libelous per se.</p> <p>3. Where actual malice is shown in an action for slander or libel, the jury may always give punitive damages; citing Neivman v. Stein, 75 Mich. 407.</p>

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

<p>Logs and logging — Scale-sheets—Evidence—Mistake—Practice in circuit court.</p> <p>1. Upon proof of the death of a scaler mutually agreed upon by the parties to a logging contract, his scale, if free from fraud or gross mistake, is admissible in evidence in a suit upon the contract, and is binding upon both parties.</p> <p>2. The scale of a deceased scaler mutually agreed upon by the parties to a logging contract is presumed to be correct, fair, and honest, but if evidence is introduced tending to show the contrary, or that there is a gross mistake in the scale, the ' burden is upon the party claiming under it to establish its correctness.</p> <p>3. The term “gross mistake,” as used with reference to a log scale, is a mistake which is clearly shown to have left out some of the logs, or to have increased the scale by a mistake in the tally or in the addition of the amounts on the tally-sheets, or something of that nature, and not an honest error of judgment in the scaler.</p> <p>4. Where the scale of a deceased scaler is received in evidence, it is competent for witnesses who were present when the scale was made to testify to the manner of its making, and. what they did and knew about it, and what the scaler did and said while making it; and the declarations of the scaler against the correctness or honesty of his scale may also be shown.</p> <p>5. Where logs which were not delivered at the time fixed by the contract, because “hung up” by reason of low water, were received the following year without any demur or protest on account of such delay, but payment was refused because the scale was disputed, such non-delivery is not a substantial breach of the contract.</p> <p>6. The discretion of the trial judge in the enforcement of Circuit Court Rule No. 63, which provides that “one counsel only on each side shall examine and cross-examine witnesses,” is held not to have been abused by allowing one of the attorneys for the plaintiffs to continue and complete the examination in chief of a witness after it liad been commenced by the other attorney.1</p> <p>7. Where, after a scaler mutually agreed upon by the parties to a logging contract had scaled a portion of the logs, his place was by agreement filled by another scaler, who scaled all of the logs, evidence of the reputation of the first scaler is immaterial in a suit involving the correctness of the last scale.</p>

<p>Duress — Threats of criminal prosecution — Payment.</p> <p>Where a man 72 years of age is threatened with arrest and imprisonment for an act which he denies committing, but on account of his age and ignorance of the law is so put in fear as to overcome his will, and cause him to pay the money demanded because of a fear that he will be unjustly'imprisoned on the complaint of the person making the threat, and the testimony of witnesses produced by him, such payment is made under duress, and the money may be recovered as paid without consideration.</p>

<p>Deed — Delivery—Recording—Dire insurance — Insurable interest.</p> <p>1. Recording a deed raises a presumption of delivery to the grantee, which may be rebutted by proof of a contrary intent on the part of the party responsible for such recording; citing Stevens v. Castel, 63 Mich. 111.</p> <p>2. The homestead right of a husband (if any) in buildings which he has insured before conveying the land on which they stand to his wife is not an insurable interest within the meaning of the charter of an insurance company, which provides that the interest of the assured at time of a loss must be that of owner or mortgagee.</p>

Mandamus. Relator applied for mandamus to compel respondent to issue a patent to him for 80 acres of swamp land. The facts are stated in the dpinion.

(Peck, J., presiding.) Bill to enjoin the construction and operation of a street railway. Complainants appeal. The facts are stated in the opinion.

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

<p>Railroad companies — Accident at crossing — Gross negligence— Infants — Imputed negligence.</p> <p>In this case the finding of the jury that the defendant was guilty of gross negligence in the management of certain detached freight-cars, to the injury of the plaintiff, who had not arrived at the age of accountability, is held to have been warranted by the evidence and circumstances surrounding the case, as set forth in the opinion.</p> <p>[The points of counsel are fully discussed in the opinion. — Reporter. ]</p>

Rehearing, on application of defendant, of case reported in 84 Mich. 161. The facts are stated in the former opinion, which is affirmed.

<p>Appeal from Saginaw. (Gage, J.)</p> <p>Bill to restrain the collection of a special assessment. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Master and servant — Negligence—Defective appliances.</p> <p>Plaintiff, while pulling down an iron door, which was moved by means of a chain running over pulleys, and fastened to the top of the door, a weight being attached to the other end of the chain, was injured by its falling upon him. The chain broke, and on inspection it was found to have been connected together at one point with coils or strands of wire, which had broken or pulled apart. Plaintiff was unaware of the existence of this wire connection, and one of his fellow-servants, who had been in defendant’s employ for eight years, testified to his want of such knowledge, and that he had . never known of any repairs or inspection of the chain. And it is held that plaintiff made a sufficient showing to go to the jury, the case being ruled by Weiden v. Electric Light Co., 73 Mich. 268; Johnson v. Spear, 76 Id. 139; Van Dusen v. Letellier, 78 Id. 492; Morton v. Railroad Co., 81 Id. 423.</p>

<p>Taxes — Validity—Burden of proof — Certification to board of supervisors — Record of township board.</p> <p>1. Where a tax is directed to be raised by the board of supervisors under section 24 of the tax law of 1885, which is not certified to the board by the township clerk pursuant to the provisions of said act, the burden is upon the tax-payer to show that such tax was not originally authorized to be raised by competent authority; citing Robbins v. Barron, 33 Mich. 124; Upton v. Kennedy, 36 Id. 215; Boyce v. Sebring, 66 Id. 218.</p> <p>2. The record of the proceedings of a township board at a special meeting showed that only one justice was present, and failed to show that notice was given to the other justice. It appeared that $1,000 was voted to be raised for township expenses, $1,000 as a special tax for’ bridge purposes, and $1,000 to pay indebtedness, but the record failed to show the neglect or refusal of the electors to vote taxes for such purposes. And it is held that the taxes are invalid under the decisions in Beaver Creels v. Hastings, 52 Mich. 528; Harding v. Bader, 75 Id. 316; Cambie v. Auditor General, 78 Id. 302; Manufacturing Co. v. Bchtinaw, 81 Id. 416.</p> <p>3. The exemption of four surveyed townships in a school-district from a general school tax levied upon the remaining territory is fatal to the validity of the tax levy, the law under which' the district was organized requiring that all taxes should be spread upon all of the taxable property of the district.</p>

<p> .Habeas corpus. </p>

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

(Hart, J.) Trover. Plaintiff brings error. The facts are stated in the opinion, and in the former report of the case, found in 66 Mich. 343.

Mandamus. Eelator applied for mandamus to compel respondent to quash a writ of attachment. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel respondent to admit him to bail. The facts are sufficiently stated in the opinion.

(Stone, J.) Bill to determine boundary line between adjoining riparian proprietors. Complainant appeals. The facts are stated in the. opinion.

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

<p>Statute of frauds — Contract for sale of goods — Part delivery.</p> <p>Plaintiffs sued defendant for the breach of an agreement, which was reduced to writing but not signed, under which defendant agreed to sell and deliver, and plaintiffs to receive and pay for, 5 car-loads of -wood- at a stated price per cord. Defendant further agreed to sell and deliver to plaintiffs as much more of the same kind of wood as they should order at the same price. After delivering eight car-loads further delivery was refused, and plaintiffs are held not entitled to recover.</p>

(Beach, J.) Bill to enjoin the removal of milling machinery, and to declare an equitable lien. Defendant Dutton appeals. The facts are stated in the opinion.

<p>Constitutional law — Eminent domain — Cemeteries.</p> <p>Act No. 219, Laws of 1875 (How. Stat. §§ 4778-4787), which provides for the condemnation of land by corporations organized under Act No. 12, Laws of 1869 (How.. Stat. §§ 4763-4777), to establish and maintain rural cemeteries, and by the board of health of any township, or the common council, board of health, or board of trustees of any city or village, is unconstitutional.</p>

<p>Replevin — Bond—Sale—Good-faith purchaser.</p> <p>1. The Michigan replevin statute expressly provides for a return of the property to the defendant if he so elect, and the bond also expressly provides for a return of the property. These provisions of the law were idle if it were the intention to give to the plaintiff the absolute right to a disposal of the property.</p> <p>2. Although the property is delivered to the plaintiff, it still remains in the custody of the law, and, if a judgment for its return pass in favor of the defendant, he may recover it by execution if found within the jurisdiction of the court, and, if not, by replevin, and it is immaterial whether the defendant purchased it in good faith or not.</p> <p>So held, where a plaintiff, who had replevied property in justice’s court, sold it in another county, and on the refusal of the defendant to deliver the property to the defendant, who had recovered a judgment for its return, he brought replevin to recover possession.</p> <p>3. The language used in Cary v. Hewitt, 26 Mich. 236, must be construed in reference to the facts, which were entirely different from those in this case, and the statement that the bond “in a special sense” becomes a substitute for the goods is very far from saying that the title had passed to the plaintiff.</p>

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

<p>Replevin — Res judicata — Good-faith purchaser,</p> <p>1. A purchaser from the defendant in a replevin suit, to whom the property has been returned by virtue of a judgment in his favor for such return, is bound by a final judgment in favor of the plaintiff.</p> <p>So held, where two chattel mortgages, were- delivered to am agent for foreclosure, to whom the mortgagor surrendered the-property, and then repossessed himself of it. The agent replevied it in his own name, and completed the foreclosure-by a sale of the property to the mortgagee, after which the-mortgagor recovered a judgment for its return, which was-complied with. The mortgagor then sold the property to a-, third person, who was sued by the mortgagee in trover after the agent had recovered a final judgment in the replevin suit, determining the validity of the chattel mortgages, and thevendee sought to retry said question, which he is held estopped from doing by said judgment.</p> <p>2. Possession is not conclusive evidence of title, and an unauthorized sale of personal property does not prejudice the owner,, unless he has done some act which is calculated to mislead, the purchaser. The mortgagor had no title when he sold the-property, and it is immaterial whether his vendee purchased in good faith or not. His only remedy is against the mortgagor under the implied warranty of title which accompanies, a sale of personal property.1</p>

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

<p>Master and servant — Incompetent fellow-servant — Question for jury.</p> <p>1. A master is liable for injuries to servants that spring from such negligent acts of fellow-servants as are due to their incompetency; citing Hilts v. Railway, 55 Mich. 487; and where in a negligence case there is evidence tending to show such incompetenoy, the question should be submitted to the jury.</p> <p>3. The following general propositions are summarized from the opinion of Mr. Justice McGrath:</p> <p>a — Employers may be negligent in the selection of servants as well as in their retention; citing Hilts v. Railway, 55 Mich. 437; Mining Co. v. Kitts, 42 Id. 34; Smith v. Potter, 46 Id. 258.</p> <p>5 — In the absence of any evidence as to the exercise of care in his selection, proof that a servant who has been in the service but two or three weeks was incompetent when employed need not be supplemented by proof of the master’s knowledge of his incompetency.</p> <p>c — Where a servant competent at the time of his employment becomes incompetent, or indulges in a habit which renders him incompetent during its indulgence, notice of such incoinpetency or habit must be brought home to the master, or it must be so notorious as to. .charge the master with knowledge; but when the incompetency existed at the time of the employment, proof of notice to the master is unnecessary.</p>

(Daboll, J., presiding.) Bill for an injunction. Defendants appeal from decree adjudging- them guilty of contempt. The facts are stated in the opinion.

<p>Application by plaintiff for rehearing of case reported in 86 Mich. 199.</p> <p>The facts are stated in the opinion.</p>

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

<p>Partnership — Assignment for benefit of creditors — Death of party' —Revival of suit — Res judicata — Evidence— Attachment.</p> <p>1. An assignment by one partner of his property for the benefit of his creditors, which does not purport to convey the partnership property, gives the assignee no title to said property or right to its possession,</p> <p>2. Where, in a suit involving the question of the existence of a partnership between the defendants, one dies, and the suit is revived and prosecuted against the surviving defendant alone, a judgment establishing the existence of the partnership is not binding upon-the administrators of the deceased defendant.</p> <p>8. Third persons who deal with parties who represent themselves as partners in a business are entitled to have the property used in that business applied to the payment of their debts in preference to the individual debts of such parties.</p> <p>4. One partner cannot avoid liability for the firm debts by proof that he was induced to enter into the partnership relation by the false statements of his copartner as to the value of the firm property.</p> <p>5. One partner cannot avoid liability in a suit brought against the firm, which he defends as survivor, by showing that he disclaimed all interest in the property, and assented to its assignment by his copartner as his individual property for the benefit of Ms creditors; and the same rule obtains where such partnership exists as to third persons, although not in fact as between the parties themselves.</p> <p>6. Where, after the commencement of a suit against two partners, one of them dies, the suit is properly revived and prosecuted to judgment against the surviving defendant, the administrator of the deceased defendant not being a necessary party. How. Stat. § 7401.</p> <p>7. The presentation of a claim against a partnership for allowance against the estate of one of the partners, who has died since the commencement of a suit against the firm for its collection, will not operate as an abandonment of the suit. Manning v. Williams, 2 Mich. 105.</p> <p>8. A diligent creditor, who has secured a lien by instituting proper legal proceedings, is not deprived of it by the death of one of his debtors, if the suit is revived and prosecuted to judgment in the manner provided by law.</p> <p>9. All of the acts of a surviving partner, and the result of suits brought by or against him as a survivor, are binding upon the representatives of the deceased partner, so long as they are conducted in good faith.</p>

<p>Error to Jackson. (Peck, J.)</p> <p>Negligence case. Plaintiff brings error.</p> <p>The facts are stated in the opinions.</p>

<p>Board of supervisors — Salary of sheriff.</p> <p>A board of supervisors has no power to allow the sheriff an annual salary for services “as jailer,” including those for which the statute has provided fixed fees.</p>

<p>Mutual benefit associations — Rejection of claim — Bar to action at law.</p> <p>A provision in the laws of a mutual benefit association that the decision of a tribunal created by the constitution to pass upon death claims shall' be final, and bar any suit at law or in equity therefor, is sustained, as within the ruling in Van Poucke v. Society, 63 Mich. 378,</p>

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

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