Volume 9 — Michigan Reports

<p>■Where a tender, sufficient in amount to discharge a mechanic’s lien for the repair of personal [property, was made on condition that the property be delivered up, and the only objection made to the tender was that the amount was insufficient; — iTéi^That the tender was not vitiated by the condition.</p> <p>One who makes a sufficient tender in such case, and then brings replevin for the property, is not obliged, in order to keep the tender good, to bring the money tendered into court. The lien being discharged by the tender, the mechanic can thereafter only roly upon the personal responsibility of his employer.</p>

Assumpsit on a promissory note, of which the follow* ing is a copy: “$549. Sixty days after date for value received, we or either of us jointly promise to pay, to the order of J. S. Nevius, five hundred and forty-nine dollars, payable at the banking office of Wm. J.’ Wells, Grand Rapids. Grand Rapids, May 28, 1857. II S. Watrous, lewis Porter, Surety.” The note was endorsed by Nevius to the plaintiff in May or June, 1858. Porter alone defended.

<p>Under our usury law, tlie borrower who has given an usurious contract has no re*, medy except that given by the statute; namely, a deduction from the contract of the amount payable by its terms over and above tlie principal and legal interest.</p> <p>“Where one who had borrowed considerable sums of money and paid usurious interest thereon, accounted with the lender, and gave him a note endorsed by the defendants for the balance of principal remaining unpaid, with legal interest, and the defendants subsequently took up this note, giving their own in payment therefor; it was held that the defendants were not entitled to a deduction from their note of the amount of usurious interest so paid.</p>

<p>"Where a bill is filed to restrain the foreclosure of a mortgage, which is claimed to have been discharged, the defendant claiming to own the mortgage cannot be called as a witness by the other defendants, since there can be no part of the case in whioh he is not personally interested. '</p> <p>Nor can a defendant be called as a witness to sustain the mortgage when the effect of sustaining it would be to charge the land with the payment of his personal obligation.</p> <p>“Where a note accompanying a mortgage is not produced or accounted for, it must be presumed paid, as against the party setting up the mortgage.</p> <p>A writing was recorded as a separate paper, which referred to w the within mortgage,” but did not in any way describe or identify the mortgage. Such a record is no evidence that the writing recorded was endorsed upon any instrument not recorded with it; as that is an extrinsic fact, not within the purview of the registry laws.</p>

Plaintiff declared against defendant, that tbe latter, being desirous to collect a judgment of against Shadrach and Thomas Gillett, promised plaintiff that if he would undertake to search out property belonging to the Gilletts, upon whi^h a levy could be made, and out of which the whole or any part of the judgment could be collected, he, the defendant, would pay plaintiff one-third the amount so collected, or if in any other manner plaintiff could secure the collection of…

Joseph Circuit in Chancery. The bill was filed to enforce a vendor’s lien for the unpaid purchase money on a sale of lands. The allegations in the bill, and the testimony, are sufficiently shown by the opinion.

Caso made after judgment, from Saginaw Circuit, The action was trover for certain merchandise, which had belonged to the firm of Beach & Richardson. December 5th, 1857, Beach & Richardson, mortgaged this merchandise to Seth C. Beach, to secure the payment, within ninety days, of eleven promissory notes, eight of which were then past due, and the others were to become due within the ninety days.

The bill of complaint set forth substantially the following facts: Thomas F. Knapp, in his life- time, and John Thorn, owned together a certain tract of land in Port Huron, Michigan, the legal title to which was in Thorn. This tract was subdivided and platted, and Thorn had sold several lots before Knapp’s decease, which occurred prior to 1848, but had not accounted for the proceeds.

The complainants, who are incorporated under the general law of 1855 for the incorporation of charitable societies, for the purpose, as set forth in their articles, of assisting persons, and particularly children and orphans suffering from disease, necessity or infirmity, and to that end of' establishing and maintaining hospitals and asylums for their reception, support, care and relief, and schools for the education of poor and destitute children, filed their bill of'…

November 22, 1859, the Common Council of Detroit passed the following resolution: “Be it resolved by the Common Council of the city of Detroit, That it is necessary to make the following described improvement in said city, to wit: To vacate all that portion of the Campus Martius, so called, in said city, in the county of Wayne, and State of Michigan, lying west of Woodward avenue, and between Michigan avenue and Fort street, in said city.

In 1 Mich. 432, will be found the report of a trial of Jackson on an information for the obstruction of the same alley.

Appeal in Chancery from Hillsdale Circuit. Tbe bill was filed December 26, 1857, to foreclose a mortgage given by Samuel Klae, February 27, 1837, payable two months thereafter; and also to redeem from a prior mortgage on the same land, given by Mae to George Ring, under which the defendant Finkler claimed.

<p>The compact’under which Michigan was admitted into the Union exempts from taxes certain military bounty lands, while they continue to he held by the patentees and their heirs, '■'■for the term of three years from'and after the date of the patents” therefor. This language being clear and unambiguous, must be applied precisely according to its tenor, and cannot be held to mean three years from the location of the land.</p> <p>Whore lands thus exempt have been taxed, the Auditor General may reject the on his own motion, and ho may be compelled to do so by mandamus, on of the owner.</p>

Motion by A. JB. Maynard and J. Moore, to dismiss a case made after judgment, from Saginaw Circuit.

<p>A county clerk drew an order on the State Treasurer, payable to the order of the county treasurer, for specific tax moneys belonging to the county. This order was endorsed over by the county treasurer to an attorney appointed by the Board of Supervisors to receive the money, and the attorney presented the same to the Auditor General, and applied for his warrant on the State Treas« urer for the amount. — Reld% that the order was sufficient in form, and substance,</p> <p>The Statute of 1853 ( Oonvp. Z. § 990) is a standing appropriation of one - half the Specific taxes collected from mining companies, to the counties respectively.</p>

The relator set forth in his affidavit, that on January 3, 1859, on the application of one of the commissioners of highways of Lowell, to Robert Hunter, a Justice of the Peace, a jury was summoned on the warrant of said Justice, to determine the necessity of taking certain lands of the relator in that town for a highway, and to assess his damages in oonsequence of such taking: that said jury determined that it was necessary to take such lands, and assessed the relator’s…

Motion to reinstate an appeal in Chancery which had been dismissed at the last term of this court for want of prosecution by the defendants, who were appellants. Affidavits were presented to excuse the default, but the party did not show that he was prepared to proceed to a hearing at this time.

Appeal in chancery from Berrien Circuit. The hill was filed to redeem certain premises alleged to have been conveyed to defendants in mortgage.

On exceptions from the Recorder’s Court of Detroit. The information charged the defendant that he did “in and upon one Margaret Brown, a female child under the age of ten years, to wit, of the age of seven years, unlawfully make an assault, and her the said Margaret Brown beat, wound and ill treat, with intent her the said Margaret Brown, unlawfully, feloniously and carnally to know and abuse.” There was proof that defendant was twice on a bed with the child Margaret Brown,…

Case made after judgment, from Cass Circuit. Ireland, as purchaser of certain lands on a sale of mortgaged premises under the statute, toot proceedings before the Circuit Court Commissioner, to recover possession thereof. The summons issued by the Commissioner was issued January 9, I860, returnable January 12th, and was served January '10th.

LaRue brought trespass against Wood in Justices’ Court, and recovered twenty dollars, the value of a cow. Wood appealed to the Circuit Court, where the cause was tried without a jury, and the Circuit Judge found as follows: “That on or about the fifteenth day of May, 1858, the defendant was the owner and occupant of a farm in the town of Blackman, county of Jackson.

<p>Where plaintiff in replevin is nonsuited, tlie defendant, if he, waive a return of the property, is entitled to a judgment for its full value. And in an action upon the replevin bond afterwards, the measure of damages is the amount of the judgment, and the obligors can not show in mitigation of damages that the defendant in replevin was but a part owner of the property.</p> <p>After judgment for the defendant in replevin, an execution was issued, in form in assumpsit, and purporting to be in favor of a plaintiff. It was not amended, but after return unsatisfied, the replevin bond was sued. It was held that this execution could not be considered as in any1 proper sense an execution upon the judgment in replevin; consequently no liability upon the replevin bond was created by its return unsatisfied.</p>

The action was case for damages suffered by the wifa of plaintiff from falling into a ditch or excavation opened on Grand River street, in the city of Detroit. It appears from the evidence 'that Grand River street, at the place in question, was graded to the width of twenty-five feet. The south side of the grade, on the righ^ hand coming into the city of Detroit, was occupied by the plank track of the Detroit & Howell Plank Road Company.

On exceptions from the Recorder’s Court of Detroit, where defendant was informed against for resisting the service, by a constable of Detroit, of a warrant issued for his arrest by a justice of the peace of said city, March 22, 1861, on a charge of assault and battery, and made returnable before the Police Justice. In tho Recorder’s Court the prisoner moved to quash the information, on the ground that the constable had no legal right to serve the warrant.

Tefft, of the first part, and Peter M. McNoah, of the second part, both of the city of Detroit, State of Michigan, Witnesseth: “Whereas, the above parties have, since the second day of July, 1855, been associated as partners in the hardware, tin, stove, and manufacturing business, as per articles of copartnership bearing date as above, to which copartnership said McNoah contributed the sum of three thousand dollars as capital (received from Edward Shepard), and the balance…

<p>As a general rule, a partner can not execute a specialty in the name of the firm,, binding, as such, upon the firm.</p> <p>A bond was declared upon, as the individual bond of two defendants. The bond offered in evidence was signed by one with the name of a copartnership com-' posed of the two, but there was no evidence that it was executed by the one in the presence of the other, or that the other had previously assented to its execution, or subsequently recognized or ratified it as the act or obligation of the firm. Heldi that the action could not be maintained.</p>

The action was against Trowbridge as drawer and endorser, and the Collins Iron Company as acceptor, of a bill of exchange, and the question in the case was as to the sufficiency of the notice to Trowbridge, of which the following is a copy, and which correctly describes the bill. “Cincinnati, October 15, 1858.

Appeal by complainant from the Wayne Circuit in Chancery. Tho bill alleged that, on August 11, 1855, .John A, Baughman was the owner of a tract of land in Spring-wells, conveyed to him by Bela Hubbard, containing about 18 acres, and was about to erect a large and valuable brick house on nine acres thereof described in the bill, and entered into a contract with Stephen S. Barrows for the building of the same, as follows: “ Articles of agreement made this seventeenth day of…

Appeal in Chancery from Washtenaw Circuit. After confirmation of the commissioner’s report of sale in a'foreclosure suit, the Circuit Court in Chancery, on application of one of the defendants, made an order, setting aside the-sale made, and ordering a resale. The purchaser appealed from this order.

<p>The yendee of a steam engine which proved of littlo or no value, defended a suit for the purchase price, claiming that he bought with warranty, and relying upon declarations or statements made by the vendor at the time of the sale to establish the warranty. But it appeared that after the engine had beon thoroughly tested and proved a failure, he had written letters to the vendor from time to time, apologizing for not paying for the engine as he had agreed, and asking further time, in none of which was any allusion made to a warranty, or claim set up to damages. These letters were held to satisfactorily negative the idea that the statements of the vendor at the time of the sale were regarded by the parties as a warranty.</p>

Information in the nature of a quo warranto. Held: at which the relator received the greatest number of votes, and was declared elected. He now claims the office accordingly. u

Appeal in Chancery from. Wayne Circuit, where both the original bill, and the bill in the nature of a bill of supplement and revivor, were dismissed as to all the defendants.

The action^ wa§ trespass. On March 3, 1860, the following order was entered: “This cause having been tried and submitted to the court, and the court having duly considered the same, now here finds the defendant guilty of the trespass alleged in the plaintiff’s declaration, and assesses the plaintiff’s damages at the sum of eight hundred and seventy dollars.

Ely, Edward Brown and William II. McConnell, brought suit against Alpheus G. Smith, Daniel McConnell and William H. McConnell, on the common money counts, under which he recovered judgment upon the following instrument; “$193.98. New York, July 13, 1858.

Appeal in Chancery from Washtenaw Circuit. Complainant, as administrator of Richard Shear, filed his bill in Chancery to compel the specific performance, by defendant Dexter, of a contract by which he agreed to convey'to one Waldo, certain lauds in said county, which contract had been assigned to Shear in his life time. The heirs of Shear were not made parties, and complainant by his bill claimed to be entitled, as administrator, to the contract, and to the premises under it.

The time for making return to the writ of error in this case having expired, and no return having been made, A. Blair, now moved to docket and dismiss the case.

On October 19, 1858, Davison recovered a judgment against Elliott before a justice of the peace of Ingham county, and after execution returned unsatisfied, filed a transcript of the same in the Circuit Court, May 20, 1859, and took execution thereon. July 19, 1859, on application of defendant, the Circuit Court made an order that defendant be allowed to appeal, from said judgment, and an appeal was taken accordingly.

The facts in the case are for the most part fully stated in the opinion.

<p>'Where plaintiff in error failed to give notice of suing out tlio writ of error, but served assignment of errors, anil defendant in error a year and a half thereafterjnovod to dismiss the writ for want of notice of its being issued, it was held be was too late to take advantage of the omission.</p>

Case made after judgment from Lapeer Circuit. The action was ejectment, brought by Patrick Ryan, to recover the northwest quarter of the northeast quarter of section twelve, in town seven north of range ten east, which he claimed under a deed from Thomas Ryan, which is sufficiently set forth in the opinion. Thomas Ryan died before the suit was brought, and the sole question involved in the suit was whether the land above described was conveyed by the deed.

Moors brought replevin before a justice of the peace, against Stadler, for a quantity of brick. The justice rendered judgment in her favor, and Stadler removed the case by certiorari to the Circuit Court, where the judgment of the justice was affirmed. Stadler then brought error.

<p>trader the General Railroad Law of 1835, a railroad company was organized, witl^ articles of association, which fixed the amount of capital stock, and named commissioners to open books for subscriptions to the stock. The commissioners, however, never opened such books, but a subscription paper was circulated by an agent' appointed by the directors, and the plaintiff in error subscribed a sum thereon, which ho subsequently, on several occasions, promised to pay. Held, that the subscription thus made was not binding.</p> <p>The commissioners act as a statutory board, and derive their powers from the law and not from the corporation. Ño one else was. authorized to receive subscriptions, and the commissioners were not required to recognize or protect any stock not subscribed for on their own list. The subscription in question not being under their auspices, is not binding on them, and could not prevent other parties from taking the entire amount not subscribed by the original articles, whenever the commissioners should see fit j to proceed and perform their duty. There was therefore no consideration for Che promise of the subscribers.</p> <p>Under the General Railroad Law of 1855, no levy of assessments could be made until the whole amount of the capital stock specified in the articles was subscribed.</p>

Hydliff, an infant, brought suit by his next friend against Squier, and declared for work and labor.

The bill was filed for the purpose of obtaining a new trial in a suit at law, in which judgment had been rendered against complainant.

Information in the nature of a quo warranto. The following is the information: “State of Michigan, Supreme Court. Jackson county, ss. Held: and should be published at least two weeks consecutively next preceding the day of such meeting : That at the meeting so called, the stockholders present should elect not less than three nor more than five directors; and they the said directors should proceed forthwith to elect from their own number, a president, treasurer and…

On exceptions from Genesee Circuit. The defendant being on trial for larceny, May 16, 1861, after the evidence had closed on the part of the prosecution, offered himself as a witness on Ms own behalf, to be sworn and to testify in the same manner as other witnesses. The Circuit Judge ruled that he was not entitled to be sworn, and to testify as a witness on his own behalf, and rejected him as such. The case now comes before the court on exception to this ruling.

Proceedings having been had in Jackson county, under “An Act to provide for the draining of swamps, marshes and other lowlands,” approved February 17, 1857 (Comp, L. p. 444) the report of the commissioners was filed in the Circuit Court, and by that court confirmed September 26, 1859.

Ebenezer Bishop, of the township of Munday, in the county of Genesee, in the said State, being duly sworn, deposes and says, that the Flint and Fentonville Plank Road Company is an existing corporation, and which was formed and organized under and by virtue of an act of the Legislature of the State of Michigan, entitled “An Act to incorporate the Flint and Fentonville Plank Road Company,” approved April 3, 1848, and which company was established under and by virtue of said…

Rogers brought ejectment against Amberg, to recover land described as the west half of the southwest fractional quarter of section twenty - eight, in town one south of range twelve east, containing fifty acres more or less* in the county of Wayne and State of Michigan.

<p>Bill in Chancery, The defendant answered fully, and also claimed by his answer the benefit of a demurrer. Replication was filed, and the cause went to a hearing under an order for the talcing of proofs in open court. At the hearing, the Circuit Judge refused to hear evidence, and dismissed the bill for .want of equity. On appeal, this Court, without considering the sufficiency of the case made by the bill, reversed the decree, and remanded the cause.</p> <p>The right of appeal in chancery is an absolute one, and where an issue of fact is joined, either party has the right to introduce evidence, so that if the court whore tbo cause is pending, or the appellate court, should regard the bill as presenting a case proper for hearing, a decree may be passed upon the merits</p>

Appeal in Chancery from Wayne Circuit. On the 17th day of September, 1858, Charles Dwyer, the husband of the defendant Harriet Dwyer, entered into an agreement with Albert Craue, the complainant, for the purchase of a certain lot in the city of Detroit, Dwyer was to pay for the lot |500 in small installments, running through a period of several years, and upon the full payment of the purchase money, Crane agreed to make him a warranty deed of the lot.

The action was for slander. In the declaration the defendant was in substance charged with having published that the plaintiff, who is a married man, was the father of a negro or colored child, and had committed adultery. Plea, the general issue.

<p>If the Statute of Uses was ever in. force in Michigan, it was repealed by the aot of September 16, 1810, repealing the acts of Parliament, &c.; from which date until March 1, 1847, when the Revised Statutes of 1846 took effect, no statute involving the principle of the Statute of Uses was in force here.</p> <p>A resulting trust in real estate, existing as such prior to the Statutes of 1846, is not subject to attachment or execution.</p> <p>Such a trust is not executed by the Statutes of 1846.</p> <p>Where, since the Statutes of 1846, land is purchased by one in the name of another, no trust results to the purchaser, and the trust in favor of creditors can not be enforced by levy and sale on execution.</p> <p>The statute which subjects to execution “lands fraudulently conveyed with intent to defeat, delay or defraud creditors,” does not reach the case of lands bought by the debtor, but conveyed directly to a third person instead of the debtor.</p> <p>Where an attachment was served on an equitable interest in lands not subject to attachment, and the defendant was not served with the writ, and did not appear in the suit, it was 7ield[.that the attachment creditor could not, by virtue of any judgment and execution in that suit, acquire any lien on the land which, equity could enforce in his favor.</p>

Bonesteel brought an action of covenant against Albert Todd and John S. Jacox, to recover the rent reserved by a lease bearing date May 1, 1852. Todd alone was served with process. He pleaded the general issue, and gave notice, among- other things, of a former suit in bar, upon the same lease, in the Supreme Court of New York, in which judgment was rendered in form against Todd and Jacox jointly, on May 25, 1855, after personal service upon Jacox alone.

<p>Error to Oakland Circuit.</p>

The action was ejectment, originally brought by the defendants in error, in the county of Genesee; from which the venue was removed to Saginaw, by an order made April 29, 1859, on motion of plaintiffs, and on cause shown by affidavit.

Daniel Peck, by his last will, after making various bequests, gave the residue of his estate in certain proportions to the plaintiffs in error. The probate of this will, so far as the residuary clauses were concerned, was contested by the heirs at law, but the Probate Court sustained all the bequests.

<p>¿Under the charter of the Michigan Southern Railroad Company — which subjects the company to an annual tax of three - fourths of one per cent upon its capital stock paid in, including the $500,000 purchase money, and also upon all loans made to the company for the purpose of constructing their road, or pur. •chasing, constructing, chartering, or hiring of steamboats authorized by the charter — the company can not claim exemption from taxation on sums of money paid out for commissions and other expenses attending the sale of its bonds and the obtaining .of loans.</p> <p>.Nor can the company claim exemption from taxation upon any sum of money borrowed by it, and afterwards loaned upon worthless securities, whereby it became lost to the company.</p> <p>Whether a deduction from the taxable amount should be made of bonds of the company which were loaned, and for which worthless securities were subsequently taken in payment, quera: the Court being equally divided on the question.</p> <p>Whether the amount of the bonds of the company issued for loans, is to be taken as the amount of its loans, for the purposes of taxation, within the meaning of the law, or whether from this amount should be deducted the discount allowed on the sale of its bonds, quere: the Court being equally divided on the question.</p> <p>No deduction should be made for the 3000 shares of capital stock alleged by the company to have been distributed as a bonus among the original stockholders without any consideration being received therefor, the allegation not being sustained by the proof in the case.</p> <p>The act authorizing the consolidation of said company with the Northern Indiana Railroad Company provides that said corporation shall continue subject to the same rate of tax as though such consolidation should not take place; and the amount of its capital and loans thereafter, upon which such taxation should he paid, should be such portion of its capital and loans as is actually employed in the State of Michigan. It was held that the act of consolidation was not designed to change the principle of taxation fixed by the original charter of the Michigan Company, but that all the stock and loans formerly taxable were to continuo taxable without diminution by losses or unproductiveness.</p> <p>No deduction can therefore be made from the amount taxable, for the cost of steamboats destroyed by accident, or lying idle within the limits of another State and taxable there. The term “actually employed in the State of Michigan” in the act of consolidation, has no reference to the actual use of the property purchased by the company, but is merely designed to distinguish the Michigan investment from the Indiana investment.</p>

<p>After the death of one of two parties, a suit upon a cause of action which survives must be brought in the name of the survivor. If brought in the names of both, judgment rendered thereon will be reversed on error.</p> <p>Nor can the judgment be sustained by showing that the deceased partner left a son surviving him, of the same name, who was living when the suit was commenced and judgment rendered.</p>

Complainant filed Ms bill against Roswell Reed, Calvin P. Austin, William Warner, Frederick S. Ayers and Charles G. Learned, setting forth, That on March 5, 1855, William A. Howard, who was then owner of certain tracts of land, known as the Port Austin property, containing about nine thousand acres, gave a mortgage thereof to Almet Reed, to secure the payment of $15,000, with interest, which mortgage was assigned to Roswell Reed, December 4, 1855.

The bill was filed, to subject certain lands to the payment of a judgment, rendered in November, 1857, in favor of complainant, against the defendant Thomas J. Hoskins, The bill alleges that the lands were bought by said Thomas J. Hoskins, with his own money, who caused them to be conveyed by the seller to his wife Martha L. Hoskins, for the fraudulent purpose of keeping them, beyond the reach of his creditors.

<p>An appeal to tlie Supreme Court will lie from an order of tlio Circuit Court in Chancery, adjudging a party guilty of a contempt in violating an iojunction, and awarding a sum of money to the opposite party, to indemnify him for the violation</p>

On case made, from Wayne Circuit. The plaintiff declared, for that defendant, on July 2^ 1855, at Detroit, “by a certain agreement or contract, then and there made, between the said plaintiff and defendant, ■among other things agreed, for himself, his heirs, executors ■and administrators, and assigns — for and in consideration of the said plaintiff (among other things) agreeing, at the ■special instance and request of the said defendant, for himself, his heirs, executors and…

<p>Error to Kent Circuit. The case is sufficiently stated in the opinion.</p>

Julius A. Austin, in Ms life time filed Ms bill in Chancery, against Heman M. Perce, John B. Gibb, Administrator of Abby S. Perce, late wife of said Heman, Peter Fralick and Mark Norris, to foreclose a mortgage, given by defendant Perce, June 12, 1847, to one Albert Stephens, to secure the payment of notes to the amount of $550, and which had ■been assigned to Austin.

<p>Plaintiffs brought assumpsit in the state Court against a single defendant, a citizen of another State, who thereupon applied for an order removing the cause to the United States Court. This application being decided in his favor, plaintiffs, before the order was entered, discontinued the action and brought a new suit in the state Court, against the same defendant and another person, a citizen of the same State with themselves, for the same oause of action. When this suit came on for trial, they introduced evidence which related exclusively to dealings with the defendant first sued, and then presented a stipulation entered into with the co-defendant some time before, that the suit be discontinued as to him; and asked leave to discontinue accordingly. The Court allowed the discontinuance, and the cause went to judgment against the defendant first sued.</p> <p> mid, </p> <p>1. The proceedings of the plaintiffs having been manifestly taken with a view to depriving defendant of his legal right to have the cause removed to the United States Court, were a fraud upon him.</p> <p>% That it is not discretionary with the Circuit Courts to allow a discontinuance as to one defendant, when upon no fair hypothesis or reasonable intendment it can be reconciled with justice.</p> <p>5. That if a discontinuance be allowed under such circumstances at the trial, the action of the Court allowing it may be reviewed on exceptions, and the judg-» ment reversed: and in this case it was reversed accordingly.</p>

<p>“Whore bill was filed to foreclose a mortgage given to secure the payment of three notes, and the bill stated that a judgment had been recovered on the first note, which had been nearly paid, but did not show that execution had been issued on the judgment and returned unsatisfied in whole or in part, nor distinctly claim a decree for the amount of the other two notes only, nor waive the right to the mortgage security as to the part of the mortgage debt included in the judgment, it was held^ that the case presented by the bill came directly within the prohibition of the Statute {Comp. L. §3569), and decree rendered therein was reversed on appeal, and the bill dismissed.</p>

<p>Owners in common of land upon wliicli a mill liad been situate (then burned down), tlie power to operate which was obtained by a dam below the premises upon a stream running through them, of which power they were also tenants in common, made partition of their rights, and the mill site was conveyed to one exclusively. Held^ that he thereby became entitled to the water power exclusively, unless a contrary intention clearly appeared from the conveyances.</p> <p>One conveying an easement in water may restrict the use thereof to such purposes as he may specify in tlie grant.</p> <p>A bill was filed to restrain the use of an easement to purposes specified in the grant under which it was claimed. The bill set forth an agreement between the parties, by which defendants were allowed to use the easement for the machinery then in use by them, and alleged a subsequent change in the machinery. The answer (not on oath) alleged that the change was made before the agreement. Replication was filed, but no proofs taken. Held, that the answer in this particular was responsive to the bill, and, as the case stood, complainant could have no relief on this part of the case.</p>

Action was brought in assumpsit, in the name of School District, No. One of the city of Saginaw, against the town•ship of Saginaw, to maintain which evidence was introduced showing that, for the 1856, there was included in the tax roll for said township a mill tax of $474,26, which the warrant annexed to the roll required the treasurer to pay over to the order of the proper school district, officers of the township of Saginaw: that School District No. One of the township of…