9 
 
 M2i'!Xmi^'J!;lim^t 
 
MXBBITT KING, 
 
 Attorney and Counselor 
 
 Corntr Sikte and Tioga Straets, 
 
 ITHACA, N.Y. 
 
Cornell University Library 
 KFM4245.1.C77 
 A digest of the reported casM 
 
Cornell University 
 Library 
 
 The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017907316 
 
A DIGEST 
 
 REPq^TEp; GA^ES 
 
 COKTAINED IN THE 
 
 MICHIGAN REPORTS. 
 
 EMBRACING 
 
 
 Haeeingtox's Chanceey Repoets, - 
 
 1 Vol 
 
 Walkbk's " " 
 
 - 1 " 
 
 Douglass's Michigan " 
 
 2 " 
 
 Michigan Reports, by M4.NXING, - - 
 
 1 " 
 
 " " " GiBBS, - 
 
 3 " 
 
 " " " COOLEY, - 
 
 8 " 
 
 " " Meddatjgh, 
 
 1 " 
 
 PUBLISHED BY THE COMPILER. 
 
 1806. 
 
J, /70 ^^. 
 
 Bntered according to Act of OongrcBB iu the year ISM, by 
 
 TH0MA8 M. COOLBY, 
 
 In the Clerk's Office of the District Court of the United St*tea for the Dittrlct of 
 
 Hichlean. 
 
 Dr. Chase's Bteam Printing House, Ann Arbor. Uioh. 
 
PREFACE 
 
 In preparing the following Digest, brevity and convemenee of use 
 have been kept in view, rather than perfection of arrangement as a 
 mere work of art ; and the object of the compiler will be fully attained 
 if he has succeeded in placing before the Profession of the State a con- 
 venient Index to the books of Reports. 
 
 PLAN OF THE WORK 
 
 In \he arrangement of a Digest of Decisions, it is always found that 
 many things can be properly classed under several heads ; and no work 
 of the kind is complete that does not enable the person consulting it to 
 find at least a reference to them under any one of such heads. This is 
 usually accomplished, either, First, by repetition ; or, Second, by refer- 
 ences under each head to the page or chapter where, under any other 
 head, kindred matter is to be found. The jvrtt method would have 
 made this work too voluminous and CKpensive to warrant its publica- 
 tion at the present time ; and the second is usually found inconvenient 
 and unsatisfactory. In the present publication repetition has generally 
 been avoided ; and instead of the references usually found at the con- 
 clusion of each subject, a very full Tablb op Contbnts is given, which, 
 it is believed, will accomplish the purpose more completely, and prove 
 a saving of time and labor. 
 
 For convenience of reference, the sections of the work are numbered 
 ■consecutively from commencement to conclusion, and a complete table 
 of cases is appended, which will enable the rulings in each to be traced 
 in these pages. 
 
PREFACE. 
 
 THE REPORTS. 
 
 Seventeen volumes of Reports are embraced in this Digest.; all of 
 them official and autlioritative, being prepared by Reporters appointed 
 by the Courts under authority of law. 
 
 Habrington's -Chanceby Repobts embraces the decisions of Chan- 
 cellor Fabnsworth prior to 1842. The decisions for the most part 
 are brief, and many of them, being based upon statutes now repealed, 
 have ceased to be important. Others are still valuable, and are ac- 
 cepted and followed as authority. 
 
 Walker's Chanceby Reports contains the' decisions of Chancbl- 
 LOB Manning from 1843 to 1845, The decisions are clear and concise, 
 and were prepared for the press with a care and pains by the Reporter 
 which have made the volume in many respects a model. 
 
 The foregoing are the only volumes of Chancery Reports ever pub- 
 lished in the State. The Court of Chancery, as a distinct organization, 
 ceased to exist in March, 1847, and the decisions of Chancellor Manning 
 after March, 1845, and of Chancellor Farnsworth for the short period 
 when he held the office in 1846-7, have never been collected or pub- 
 lished. 
 
 Douglass's Michigan Repobts, in two volumes, embrace the deci- 
 sions of the Supreme Court from January 1843 to January 1847. These 
 reports, like Walker's, were prepared with 'great care and skill, and the 
 Reporter's abstracts can always be relied on with confidence. 
 
 Manning's Repobts, in one volume, includes the decisions from 
 January, 1847, to October, 1850. The head notes are concise and reli- 
 able, 
 
 GiBBs's Repobts, three volumes, cover the period from January, 1851 , * 
 to October, 1857. 
 
 Cooley's Repobts, eight volumes, extend from January, 1858, to 
 October, 1864. 
 
 Meddaugh's Repobts, one volume, follows Cooley's. 
 
 The series of " Michigan Repobts " begins with Manning, and now 
 eniLraces thirteen volumes. The fourteenth is in press, and a number 
 of cases to appear in it will be found digested here. 
 
 THE COURTS. 
 
 The Court of Chancery during the period covered by Harrington's and 
 Walker's Reports, was held by a single Judge, whose decisions were sub- 
 ject to review by the Supreme Court, on appeal from his final decree or 
 order. When that Court was abolished, its jurisdiction was transferred 
 to the various Circuit Courts, and is now exercised by them by the same 
 
PREFACE. 
 
 process and through the same forms which were in use in the former 
 Court. No attempt, however, has been made to publish the decisions of 
 the Circuit Judges, and they have not in any manner been preserved to 
 the profession except incidentally as they have passed under review by 
 the Supreme Court. As appeals can only be taken to that Court from 
 final decrees or orders, many matters of Chancery practice are now finally 
 disposed of in the various circuits, and it is quite probable that the prac- 
 tice in difierent parts of the State is not in all respects uniform. 
 
 The jurisdiction of the Supreme Court has always been almost exclu- 
 sively appellate ; but prior to January, 1858, the Judges of that Court 
 were also Circuit Judges ; meeting in banc to review the decisions 
 made by themselves severally at the circuits. Now, the Justices of the 
 Supreme Court, except in the few cases where they may sit as magis- 
 trates, exercise judicial functions only when sitting together in that 
 Court. Tlie State is divided into thirteen circuits, in each of which a 
 Circuit Judge is elected by the people, and the Circuit Courts possess 
 general jurisdiction of all cases, at law and in equity, civil and criminal, 
 except where the statute has specially conferred jurisdiction upon 
 Courts of Probate, Justices of the Peace, and municipal Courts in cities. 
 Their decisions are reviewed by the Supreme Court as follows : 
 
 1. Clianmry Oatea, on the law and the facts, by appeal. 
 
 3. Griminal Cases, on the law, either on exceptions before sentence, 
 or on writ of error after sentence, 
 
 3. OivU Cases at Law, on the law and the facts, or on either alone, 
 upon case made ; or on the law alone upon writ of error. 
 
 4. Special Proceedings, not after the course of the common law, in the 
 Circuit Court, or in any inferior jurisdiction, are reviewed on common 
 law certiorari. 
 
 5. Probate Cases, and Cases before Justices of the Peace, may be brought 
 to the Supreme Court, in some one of the foregoing modes, after having 
 been passed upon by the proper Circuit Court. 
 
 With these explanations — important only to practitioners outside our 
 own State — the work is submitted to the consideration of a generous 
 and indulgent profession. 
 
TABLE OF SUBJECTS. 
 
 [The references are to the Sections of the work.] 
 
 Abandoning child, 804 to 809. 
 Abatement, Plea in, 902, 921, 2562 to 2571. 
 
 Of suit in equity, 1203, 1386, 1387. 
 
 Of nuisance, 862, 863, 884 to 886. 
 Abbreviations, In deed, 1000 ; In tax proceedings, 3080, 3083a. 
 
 Of names in mortgage, 1347 ; In ballot, 1091, 1093. 
 Acceptance, Ofbill,374, #2. 
 
 Of assignment, 221, 222. 
 
 Of guaranty, 1950. 
 Accessories, 809, 920 
 Accomplices, 928, 929. 
 Account by mortgagee, 2360, 2361. 
 Account books, 1828 to 1832. 
 Account stated, 75, 76. 
 Acknowledgment, To revive debt, 2225 to 2230. 
 
 See Admissions. 
 
 Acknowledgment of Deeds, 1 to 14. 
 
 Action, 15 to 77. 
 
 On bond under Boat and Vessel Law, 446 to 448. 
 
 On lost note, 471. 
 
 On breach of promise to marry, 4S2 to 484. 
 
 Against carriers, 485 to 508. 
 
 Against administrators, 1614 
 
 For property of married woman, 2031. 
 
 For injury to wife, 2032. 
 
 For exempt property, 2034. 
 
 For moneys paid for liquors, 2858 to 2860. 
 
 On subscriptions to corporate stock, 64 to 68, 2899, 2900. 
 
 By tenant in common, 30, 2937, 3143, 3143. 
 Adjournment, Of cause by justice, 2166. 
 
 Of Circuit Court, 2638. 
 Administrators, 1590 to 1616. 
 
 Avoiding fraudulent conveyance, 1892. 
 
 Admiralty Courts and Jurisdiction, 78 to 86, 3361. 
 Admissions, 1699 to 1733. 
 
 Of demand in suit, 423 to 436, 2695, T 
 
 In divorce cases, 1051. 
 
TABLE OF SUBJECTS. 
 
 In Chancery, 1471 to 1473. 
 
 To revive debt, 2335 to 2330. 
 
 By partners, 2468, 2470. 
 Adultery, As defence to homicide, 787 to 793. 
 
 See DrvoBCE, 
 Adverse Claimants, Not proper parties to foreclosure, 1279, 1280. 
 
 Adverse Possession, 87 to 95. 
 
 Affidavit, 91 to 95. 
 
 On appeal from Justices Courts, 162 to 165, 
 In attachment cases, 254 to 261. 
 Of merits, 1441,2636. 
 In garnishee suits, 1916. 
 In replevin, 2945, 2946. 
 Counter affidavits, 2767, 2771. 
 Agent, Execution of deed by, 8, 994, 995. 
 Payment of mortgage by, 2394, 
 Notice to, 461, 2059. 
 Appointment by corporation, 725. 
 Affixing seal, 679. 
 Admissions by, 1718, 1719. 
 "Wife agent of husband, 2033. 
 Of attorney, 3773, 2774. 
 Agency of partners, 2453 to,2461, 2488. 
 Bee Prtncipai, and Agbnt. 
 
 Agent of State Prison, 96,3205. 
 Agreements, 664 to 718. 
 
 Between counsel, 1415, 1416. 
 Alienation, Restraints upon, 1023, 3285 to -3288. 
 
 Alimony, 97, 1052 to 1057. 
 
 Alleys, See "Wats. 
 
 Alteration of instruments, 468, 
 
 Alternative contracts, 703. 
 
 Ambiguity in contract, 671, 678, 1001 to 1005, 1740. 
 
 Amendments, 98, 99, 1370 to 1380, 1393 to 1398, 1403 to 1405, 3242, 
 
 3727 to 3739. 
 
 In Supreme Court, 139, 2776 to 3787. 
 
 In attachment cases, 366 to 270. 
 
 Of indictment, 915, 916. 
 
 Of declaration, 2632, 2633. 
 
 Of verdict, 2677. 
 Answer in Chancery, 1336 to 1357, 1392 to 1399, 1468 to 1471. 
 
 Appeal from Chancery, 100 to 156, 1475. 
 Appeal in Forcible Entry, &c., 2617. 
 
 Appeal from Justices' Courts, 157 to 177. 
 
 Appeal from Police Court, 2592, 
 
 Appeal in Probate Cases, 178 to 183, 1612. 
 Appeal from Supervisors, 431, 432. 
 Appeal Bond, See Bond. 
 
 Arbitration and Award, 187 to 206. 
 Agumentum ab inconvenienti, 3306. 
 
 Arrest, 307 to 209, 783, 898. 
 Assaults, 774 to 784, 799, 800. 
 
 Assessments, For municipal purposes, 638 to 630, 3133 to 8134, 
 Of damages, 3701 to 3708. 
 
TABLE OF SUBJECTS. 
 
 A§gignment, In general, 310, 211, 3210. 
 
 For benefit of creditors, 212 to 352. 
 
 Of demand in suit, 1333, 1383 to 1387,3970. 
 
 Of mortgage, 2352 to 3359. 
 
 Of lease, 2212 to 2214, 
 Assignment of Errors, On certiorari, 533, 534. 
 
 In Supreme Court, 2788 to 2797. 
 Assistance, Writ of, 1525 to 1537. 
 Assumpsit, 45 to 76. 
 
 Attacbment, 253 to 307, 543. 
 Attorney, Execution of deed by, 994, 995. 
 
 Attorney§ and Counsellors, 308 to 321, 846. 
 
 Agreements between, 1415, 1416. 
 
 Producing authority, 3817. 
 Attornment, 682, 2315. 
 Authority, Execution of joint, 203, 304. 
 
 To draw bills, 379 to 381, 
 
 To execute deed, 994, 995. 
 
 Of attorney, 2817. 
 See Principal and Agent. 
 Award, 187 to 206. 
 Baggage, Suit for lost, 507, 508. 
 
 Bail, In civil cases, 323, 540. 
 In criminal, 939. 
 
 For costs before justice, 176, 3055. 
 For stay of execution, 2137, 2181, 3183. 
 
 Bailment, 823 to 328, 3206, 3330, 3331. 
 
 Carriers of Goods, 485 to 501. 
 Ballots, 1091 to 1098. 
 
 Bankruptcy, 339 to 381, 2128. 
 Deed by assignee, 1031. 
 Fraudulent grantee becoming bankrupt, 1877. 
 
 Banks and Bankings, 333 to 367. 
 
 Illegal, 887. 
 
 Assignment by bank for benefit of creditors, 315. 
 
 Bastardy, 868 to 372. 
 Bawdy house, 8B0 to 863. 
 Beasts, Stray, 1634. 
 
 Replevin for, 2940. 
 
 Fencing against, 1843 to 1849. 
 Betting and gaming, 3317, 3218. 
 Bigamy, 857 to 859. 
 Bills of Exceptions, 1583, 1583, 1587, 3732 to 2736, 3734, 2811. 
 
 In criminal cases, 936 to 939. 
 
 Bills of Exchange and Promissory Kotes, 378 to438. 
 
 Guaranty of, 1899, 1900. And see Guaranty. 
 
 Acceptance by bank, 333 to 336. 
 
 Payment by, 391 to 395, 428, 2489 to 2493. 
 Bills of Particulars, In civil cases, 3634, 2635. 
 
 In embezzlement, 820, 821. 
 Bills of Sale, 1764 to 1766.- 
 Board of Auditors of Wayne County, 431, 432. 
 Board of County Canvassers, 1088 to 1090. 
 
 Board of Supervisors, 430 to 433. 
 Legislative action, 759, 760. 
 Allowing demands, 645 to 647, 3163. 
 
fkiM 0^ m^ikmB, ix 
 
 Boat and Vessel Law, 434 to 449, 570. • 
 
 Bona Fide Purchasers, 450 to 466, 219, 230, 1155, 1157. 
 Of mortgage, 1243. 
 Of negotiable paper, 383 to 389. 
 Pleao^ 1327, 1328. 
 
 Bond, 468 to 473. 
 
 On appeal from chancery, 122 to 129, 133. 
 
 On probate appeal, 178 to 180. 
 
 In attachment cases, 262 to 264, 306, 307. 
 
 Under Boat and Vessel Law, 446 to 448. 
 
 By guardian of minor, 1967 to 1971. 
 
 Of sheriff, 2975. 2976. 
 
 In replevin, 43, 44, 772, 3957 to 2960. 
 Books of account, 1838 to 1832. 
 Booming companies, 2880 to 2339. 
 Boundary, On navigable waters, 1015, 1016, 3413 to 2415. 
 
 Controlled by monuments, 1009. 
 
 Bounty, 474 to 481. 
 
 Breach of condition, 561 to 563, 3039 to 3041. 
 
 Breach of Promise to Marry, 483 to 484. 
 Bridges, Action for injury to, 26, 27. 
 Builder's lien, 3264 to 2267. 
 Burden of Proof, 581, 1838 to 1840. 
 
 To show fraud, 1864, 1883 to 1889. 
 
 As to title to land sold, 3196 to 3198. 
 
 To show malice, 784. 
 Burglary, 831, 832. 
 By-law of corporation, 727, 728. 
 
 Carriers of Goods, 485 to 501, 703, 1037. 
 
 Carriers of Persons, 502 to 508. 
 
 Case, Action on, 15 to 27. 
 
 Cases agreed upon, 2750 to 2752. 
 
 Cases made, 2732 to 3749. 
 
 Cases reserved, 2871 to 2879. 
 
 Cashier of Bank, Authority of, 333 to 338. 
 
 Cattle, Stray, 1034 ; Replevin for, 3940. 
 
 Fencing against, 1843 to 1849. 
 Certificate, Of marriage, 859. 
 
 Of justice, when evidence, 2159, 3100. 
 
 Certiorari, 509 to 539, 2121. 
 Challenge, To grand jurors, 908, 909. 
 
 To petit jurors, 933 to 937, 3047 to 3653. 
 Champerty, 313. 
 Chancery, See Equity. 
 
 Charge to jurv, 1540 to 1548, 1553 to 1554, 3664 to 2660. 
 Charter, See Cokporations, 719 to 749. 
 Chattel mortgage, 2381 to 2307, 1702, 2936. 
 Check, when not an Assignment, 311. 
 Child abandonment, 804 to 809. 
 Glioses in Action, Transfer of when subject to equities, 383 to 390, 3357 
 
 to 2359. 
 See Bona Fide Pukchaser. 
 Churches and Religious Societies, 2933. 
 
 Bequests to, 3298 to 3301. 
 
 Circuit Court Commissioners, 540 to 543. 
 Proceedings in equity before, 1442 to 1407. 
 
TABLE OF SUBJECTS. 
 
 Circuit Courts, Practice in, 2625 to 2752. 
 
 Questions reserved by, 2871 to 2879. 
 
 Circuit Judges, 544. 
 City of Detroit, 1037 to 1046. 
 See Detroit City. 
 Cloud upon title, 1163 to 1179. 
 Collateral security, 210, 391 to 395, 1958. 
 Collection, Guaranty of, 1953 to 1962,1899, 1900. 
 
 Collision of Vessels, 545 to 547. 
 
 Comity between States, 548 to 550. 
 Commerce, Control of, 591, 1031, 1032. 
 Commission to take Testimony, 2684 to 2693. 
 Commissioner of General Land Office, 2863. 
 Commissioner of Pensions, 2206. 
 Commissioner of State Land Office, 3046. 
 Commissioners of Highways, 27, 3264 to 8269. 
 
 Commissioners of Internal Improvement, 551. 
 Commitment, 899, 900, 2187, 2188. 
 Common Carriers, 485 to 508, 591. 
 
 Common La^r, 552, 553. 
 
 Statutes changing, 8059, 3060. 
 Common Schools, 2963 to 2967. 
 Compensation, For lands taken for Public Use, 1103 to 1105, 3270 to 
 
 3373. 
 Complaint, In bastardy cases, 368. 
 
 In Forcible Entry, &c., 2601 to 2606. 
 
 Under Prohibitory Liquor Law, 2856. 
 Compound Interest, 2074. 
 
 Compromise of Claims, 554 to 559, 3010. 
 
 Conditions, 560 to 568, 687, 3039 to 3042, 
 
 In insurance policy, 2054 to 2062. 
 
 Unauthorized in execution of a power, 2623, 3624. 
 
 Relief against, 1184 to 1186. 
 Conditional Sale, 466. 
 Confession of Judgment, In Justices' Court, 2136, 2173 to 2180. 
 
 In Circuit Court, 2715 to 2717. 
 
 Conflict of Liaws, 569 to 576, 3278. 
 
 Confusion of Goods, 577. 
 Consent, To carnal intercourse, 800. 
 
 Affecting jurisdiction, 3308. 
 
 Waiving errors, 3311. 
 
 Consideration, 578 to 588, 1077, 1912, 2120, 2288, 3210, 2331 to 
 
 2323. 
 
 How averred in pleading, 2562 to 2505. 
 
 Failure of, 1329. 
 
 Want of, as defense to bill to correct mistake, 1154, 1157. 
 Conspiracy, 833 to 843. 
 Constable, Levy and sale by, 2088 to 2091. 
 
 In Detroit, 1043. 
 
 Service of summons by, 2162, 2163, 
 
 Constitutional L,aw, 589 to 663, 3353, 3335, 3336. 
 
 As to Homestead, See Homestead. 
 Construction, of Contracts, 337, 338, 664 to 672, 1740, 3323 to 3328 . 
 
 Of Deeds, 1006 to 1017, 3322 to 3328. 
 
 Of Statutes, 607, 610, 1915, 3048 to 3060. 
 
 OfWills, 3282, 3291. 
 
TABLE OP SUBJECTS. 
 
 Constructive Notice, 450 to 457, 461, 2059, 2428,2439, 
 Contempts by "Witness, 1841,1842. 
 
 Violation of injunction, 1147, 2597. 
 Continuance, by Justice, 2166. 
 
 In Circuit Court, 2638. 
 
 Contracts, 664 to 718, 721 to 724, 1740 
 
 By Detroit City, 1036 to 1039. 
 
 Actionsupon, 37 to 76. 
 
 Reforming, 1149 to 1159. 
 
 Land contracts, 2193 to 2204. 
 See Bailment, Cakribrs of Goods, Damages, Guaranty. 
 Contribution, 1338. 
 Conversion, 30, 31, 3143. 
 Conveyances, 1 to 14, 991 to 1036. 
 
 And see Deeds. 
 Co-partnership, see Partnership. 
 
 Corporations, 719 to 749. 
 
 Amendment of charter, 595, 603, 604, 
 
 Action for subscriptions to stock, 64 to 68. 
 
 Forfeiture, 361, 363, 738 to 743. 
 
 Suit by foreign, 549. 
 
 Creditor's bill against stockholders, 1307 to 1310. 
 
 Coits, 750 to 752, 2730. 
 
 On arbitrations, 201, 202. 
 
 In equity, 1505 to 1513. 
 
 On certiorari, 538. 
 
 On mandamus, 2356. 
 
 In Supreme Court, 2814 to 2816. 
 
 Security for, 176, 3055. 
 Counsel, Eight to, 934, 935. 
 
 Agreements between, 1420, 1431. 
 
 Privileged communications to, 331. 
 Counter afiSdavats, 2767, 3771. 
 Counterfeit money, 868 to 880. 
 
 Counties, 753 to 761. 
 
 Claims against, 645 to 647, 3163. 
 
 Officers of, 754 to 757, 763 to 767. 
 
 Organization of new, 438. 
 County canvassers, 1088 to 1090. 
 
 County Clerk, 93, 762. 
 
 County Courts, 763, 764. 
 
 County Treasurer, 765 to 767. 
 
 Courts of the Vnlted States, 768 to 771, 1983. 
 
 Covenant, 772, 778. 
 
 In deeds, 2198, 2972. 
 Credit, Representations as to, 1905. 
 Creditor's Bills, 1189 to 1310, 1338, 1395 to 1397, 1433, 2978. 
 
 Assignment under, 1853, 1854. 
 
 Criminal L,aw, 774 to 944. 
 
 Justices' jurisdiction, 944, 2187, 3188. 
 Cross Bill, 1316 to 1333, 2002, 2003. 
 Cross Examination, 1677 to 1683. 
 Cul de Sac, 3257 to 3262. 
 Current Funds, 437. 
 
 Curtesy, 945. 
 Curtilage, 831, 1079. 
 
xU TABLE OF SUBJECTS. 
 
 Custom and Usage, 326, 491, 546, 547, 1776, 3190. 
 Cy prea, 3289, 3290. 
 
 946 to 989. 
 "On writ of error, 2813,2813. 
 
 In replevin, 2951 to 2953. 
 
 On replevin bond, 3960, 
 
 In trespass to lands, 3172. 
 
 Miti(?ation of, in Slander, 3987 to 3994. 
 Dams, Flowing Lands by, 18 to 31, 881 to 886. 3304. 
 Date, 678, 997, 3150. 
 Debtor and Creditor, Assignments for Benefit of Creditors, 313 to 358. 
 
 Frauds upon creditors, 1863 to 1894. 
 
 Avoiding fraudulent conveyance, 3178. 
 
 Imprisonment for debt, 2035 to 3041. 
 See Cbbditob's Bills. 
 Deceased Persons, Estates of, 1590 to 1616. 
 Declaration, See Pleadings. 
 
 Declarations, Evidence of, 1699 to 1733, 1746 to 1748, 3833. 
 Decree in Chancery, 1486 to 1504. 
 
 Proof of, 1784. 
 
 Dedication, 990, 3154 to 3157, 3343 to 3356. 
 
 Deed, 991 to 1036, 1821 to 1833, 1775, 1805. 
 
 Of lands sold on execution, 3103, 2103. 
 
 By Land Board in Detroit, 1027, 1933 to 1938. 
 
 Acknowledgment of, 1 to 14. 
 
 By married woman, 4 to 10, 30*0, 3011, 2033: 
 
 By husband to wife, 3012. 
 
 On tax sales, 3112 to 3119. 
 Default, In Justices' Court, 3164. 
 
 Opening, in equity, 1436 to 1441. 
 
 Assessment of damages on, 3701 to 3708. 
 
 At hearing in Supreme Court, 3803. 
 Defeasance, 391, 3313 to 2318. 
 Defendant's Statement, 931 to 935. 
 Delivery, Of deed, 996r to 998, 696. 
 
 Of goods bought, 695, 3204 to 3306. 
 
 Of contract, 1773, 3207. 
 
 Of award, 199,300. 
 Demand, To charge guarantor, 1948, 1949. 
 
 To charge indorser, 399 to 404. 
 
 Before bringing replevin, 2942. 
 
 Of deed under land contract, 3019 to 3031. 
 De minimis lex non curat, 3337. 
 Demurrer, In Chancery, 1358 to 1365, 1403. 
 
 At law, 2589, 2590, 3643, 3643, 3714. 
 Deposit in Court, 1433. 
 Depositions, Evidence by, 3684 to 3698. 
 Deputy County Clerk, 92, 762. 
 Deputy County Treasurer, 766, 
 . Deputy Sheriff, 308, 
 Descent of Property, 1590 to 1616, 3313. 
 Description, Of property in Chattel Mortgage, 3393, 3393. 
 
 Oi lands, 999, 1003 to 1005, 1008 to 1010, 1015 to 1017. 
 
 In tax proceedings, 3080 to 3083. 
 
 Detroit City, 1037 to 1046. 
 
 Metropolitan Police Act, 606, 631 to 633, 640 to 643, 3073. 
 Paving streets, 639, 630. 
 Plan of, 1936, 3347, 3348. 
 Control of streets, 1035, 1937. 
 
TABLE OF SUBJECTS. 
 
 Liability in respect to sewers, 2397 to 2399, 2433 to 2437. 
 
 Assessments for improvements, 3133 to 3134. 
 
 Redemption from tax sales, 3140. 
 Detroit River, Boundary on, 2413, 2414. 
 Detroit Water Commissioners, 1044, 1045. 
 Detroit Young Men's Society, 733, 3084, 3083. 
 Devise, 3276 to 3301. 
 
 Discontinuance, As to part of defendants, 771, 2640, 2641. 
 Discounting Paper,343. 
 Discovery, 1131 to 1183, 1284. 
 Discretion, Judicial, 1.539 to 1543, 1685. 
 Disseisor, 3170 to 3172. 
 Dissolution of Attachments, 294 to 305, 543. 
 Division Fences, 1843 to 1849. * 
 
 Division of Counties, 753 to 758. 
 Division of Townships, 3162. 
 
 Divorce, 1047 to 1059, 649. 
 
 Docket of Justice, 1783, 1787, 1798, 3154 to 3100. 
 
 Domicil, 1060. 
 
 Donatio Causa Mortis, 1061, 1062. 
 
 Dowerj 1063 to 1078, 1619, 1633, 3029. 
 
 Acknowledgment required to bar dower, 5 to 8. 
 
 Draft for Military Duty, 1074. 
 
 Drainage Laws, 1075, 1076. 
 Due Process of Law, 016 to 635. 
 Duplicate Contracts, 706 to 709. 
 Duplicity, 921, 
 
 Duress, 1077, 1078. 
 
 Dwelling House, 831, 1079, 3212. 
 Educational Institutions, Subscriptions to, 585, 715, 716. 
 Appropriations for, 643, 644. 
 
 Ejectment, 1080 to 1087. 
 
 Election, Of remedies, 1115, 1116, 3734, 3933, 3972. 
 Of oflenses, 890, 919. 
 
 Elections, 1088 to 1100. 
 
 Liability of Inspectors for refusing vote, 17,894. 
 Embezzlement, 819 to 830. 
 
 Eminent Domain, 1101 to 1107, 2370, 3353. 
 
 Distinguished from taxation, 3141. 
 Entrance Fee, 175, 1541. 
 Equitable Lien, 3213 to 3215. 
 
 Equities, When chose in action subject to, 383 to 890, 3357 to 2359. 
 See Bona Fide Purchaser. 
 
 Equity, 1108 to 1538, 350 to 360. 
 
 Appeals from 100 to 156. 
 
 Who seeks equity must do equity, 3310. 
 Equity of Redemption, See Mortgage of Lands. 
 
 In chattels, 2305. 
 
 Error, 15-39 to 1589. 
 
 Waiver of, 3234 to 3229, 3311. 
 
 Return to writ, 2764 to 3767. 
 
 Review on case made, 3743 to 3749. 
 Errors, Assignment of, 533, 534, 3788 to 3797. 
 ilscrow, 996. 
 
Xiv TABLE OF SUBJECTS. 
 
 E§tate§ of Deceased Persons, 1590 to 1616, 1892. 
 
 Estoppel, 1617 to 1633, 1283, 1234, 1245, 2395. 
 
 Estrays, 1634. 
 
 Fencing against, 1843 to 1849. 
 Eviction, 2209 to 2211. 
 
 Evidence, 1635 to 1842. 
 
 By deposition, 2684 to 2693. 
 
 Of Justices' judgment, 2159. 
 
 Of grant by Governor and Judges, 1935. 
 
 Before auditors, 2697. 
 
 Of corporations and corporate action, 734, 729 to 732. 
 
 Privileged communications, 321. 
 
 To charge indorser, 397, 398, 417 to 420. 
 
 By answer in Chancery, 1343 to 1355, 1468, 1469. 
 
 Before Master in Chancery, 1465 to 1469. 
 
 Of fraud, 1864, 1882, 1883, 1890. 
 
 Secondary, 1833 to 1837, 3333. 
 Exceptions, In civil cases, 1583, 1583, 1587, 2722 to 2726, 2734. 
 
 Judgment on, 2811. 
 
 In criminal cases, 936 to 939. 
 
 To answer in Chancery, 1401. 
 
 To Master's report, 1455 to 1457, 1467. 
 Executions, See Judgments and Executions. 
 Executors and Administrators, 1590 to 1616, 1738, 1893. 
 Exemptions, Of personal property, 598, 3113 to 3117. 
 
 Of homestead, 1986 to 3009. 
 
 From taxation, 3084 to 8088. 
 Exoneration of Bail, 322. 
 Experts, 1724 to 1735. 
 Exposing Child, 804 to 809. 
 
 Fact and Law, Questions of, 384, 405, 1882, 1888, 3654 to 3668. 
 Falsa Demonstratio, 1003 to 1005. 
 False Imprisonment, 36, 988, 989. 
 False Pretences, 839 to 846. 
 False Representations, 1894 to 1898. 
 Federal Courts, 768 to 771, 1982. 
 Fees of Officers, 308. 
 Feigned Issue, 1476 to 1482. 
 Felony, "What is, 814. 
 
 Arrest for, 209. 
 Feme Covert, See Husband and Wife ; Married Woman. 
 
 Fences, 1848 to 1849, 2896 to 3898. 
 
 Ferries, License for, 1031, 1082. 
 
 Fictions of the Law, 3330. 
 
 Files Lost, 3637. 
 
 Finding of Facts, 3678 to 2683. 
 
 In ejectment, 1086. 
 
 By referee, 2698 to 3700. 
 Finders of Goods, 584, 1914. 
 Fine Money."?, 3133. 
 Fire, Insurance against, 8051 to 3071. 
 Fire Limits, 1034. 
 
 Fixtures, 1850 to 1853. 
 
 Flowing Lands, Action for, 18 to 31. 
 
 Indictment for, 881 to 886. 
 Forcible Entry and Detainer, 3598 to 2618. 
 
TABLE OP SUBJECTS. 
 
 Foreclosure of Mortgage, Inequity, 1373 to 1283, 1287 to 1294, 1383 to 
 1385, 1425, 1498, 1532, 1537, 1538, 2370 to 2376. 
 By advertisement, 1826, 2362 to 2369. 
 Suit by purchaser for waste, 25. 
 
 Foreign Administrator, 1615. 
 
 Foreign Contract, 3199, 3300. 
 
 Foreign Corporations, 549. 
 
 Foreign Interest, 570, 3199, 3300. 
 
 Foreign Judgments, 2139 to 2143. 
 
 Foreign Laws, Proof of, 1799 to 1803. 
 
 Foreign Moneys, 3190. 
 
 Foreign Offenses, 781, 810, 811, 895, 890. 
 
 Foreign Receivers, 1853, 1854. 
 
 Forfeitures, Of Corporate Franchise, 738 to 744, 3530 to 3534. 
 
 Of land contract, 2203. See Specific PBitFOitMANCE. 
 
 Enforcing in equity, 1187, 1188, 3043. 
 Forgery and Counterfeiting, 868 to 880. 
 
 Former Suit, 1855, 1858, 883. 1131 to 1138, 1235, 1226, 2508, 2569. 
 Franchise, See Cobporations ; Fbeiiibs. 
 
 Frauds and Fraudulent Conveyances, 1859 to 1894, 464, 
 
 3040, 2ioo: 
 
 Fraudulent mortgage, 464, 3306, 2307. 
 
 Fraud in marriage, 1058, 1059. 
 
 Upon dower, 1069. 
 
 Fraudulent concealment of action, 1858. 
 
 Fraud in contracts generally, 556, 583, 690, 091. 
 
 In sale of lands by guardians, 1979. 
 
 In assignments, 333 to 247. 
 
 Belief against in equity, 1117, 1119, 1122, 1133 to 1152, 1211, 
 
 1313, 1249. 
 
 Avoiding fraudulent deed, 3177, 3178. 
 Fraudulent Debtor's Act, 895, 2035 to 2041. 
 
 Fraudulent Representations, 1895 to 1898. 
 
 Frauds, Statute of, 1899 to 1914, 1619. 
 
 Declaration on contract within, 2533, 3534. 
 Freight, Lien for, 495 to 497, 
 
 Eecoupment of damages, 500, 501. 
 
 "When earned, 2359, 2260. 
 Gaming, 3217, 3218. 
 
 Garnishees, 1915 to 1924, 3077. 
 
 Appeal in suits against, 160. 
 General Average, 3357, 3858. 
 General Banking Law, 344 to 347. 
 General Issue, 3572 ; Evidence under, 1819, 3573 to 3577. 
 
 General Railroad Law, 67, 68, 2896 to 2900. 
 
 Gift, 1935 to 1938 ; Causa Mortis, 1061, 1063. 
 Gold, Contracts for, 589, 590. 
 Goods, Shipment of. See Carriers of Goods. 
 Goods Sold and Delivered, 688 to 690, 2536. 
 Guaranty of Payment, 3540 to 2543. 
 Government Lands, 2862 to 2870. 
 
 Governor and Judges of ITIicIiigan Territory, 1929 to 
 
 1938, 1775, 2621, 2622. 
 
 Record of Deeds, 2930. 
 Grand Jury, 613, 908 to 911. 
 
XVI TABtil OS* StJBiEOTS. 
 
 Grants, 1939 to 1944. 
 
 Of lands in trust, 252, 2633, 2624. See Trusts and Tkus^ees. 
 
 By GoTernor and Judges, 1027, 1932 to 1938, 2621 to 2624. 
 
 By treaty, 1940 to 1943. Sec Treaty. 
 Grist Mills, 2277 to 2280. 
 
 Oiiaranty, 1945 to 1962, 588, 1807, 1899, 1904. 
 
 That goods shall be accounted for, 3540 to 3543. 
 Guardian ad Litem, 1474. 
 
 Ouardtan and Ward, 1963 to 1981. 
 
 Habeas Corpus, 1982 to 1985. 
 
 Hearsay, 1736 to 1739. 
 
 Highways, 3336 to 3275, 551, 648, 1035. 
 
 Appropriation for plank roads, 2507, 3508, 
 
 Certiorari in cases of, 521, 532, 529. 
 
 Homestead, 1986 to 2009. 
 Homicide, 774 to 795, 78 to 86, 918, 1748. 
 House of Correction, 943. 
 Houses of 111 Fame, 860 to 863. 
 
 Husband and Wife, 2010 to 2034. 
 
 As witnesses, 1664, 1665. 
 
 Admissions by, 1715 to 1717. 
 
 Husband cannot sell dower, 3011. 
 Idem Sonans, 1093, 3331. 
 Identity, Of grantee, 1736, 1737. 
 
 Of suit, 1806. 
 
 Oflands, 1769 to 1772. 
 Illegal Contracts, 680 to 686, 3013, 3314. 
 Illegal Securities, 384, 385. 
 Illegality, Not presumed, 1810, 3309. 
 Impeachment, Of witness, 1686 to 1698, 1463, 3302 to 3804. ■ 
 
 Of government grant, 1166, 1767, 1768. 
 Imprisonment, For debt, 661, 663, 2035 to 2041. 
 
 When not duress, 1077. 
 
 Relief from, see Habeas Corpus, 1982 to 1985. 
 Improvements, Recovery for in ejectment, 1083 to 1087. 
 
 Assessments for, in Detroit, 638 to 630, 3123 to 3134. 
 Incest, 853 to 856. 
 Incumbrances, see 3Iortgage of Chattels ; Mortgage op Lands. 
 
 Covenant against, 2972, 
 
 Lien of mechanic, 2364 to 3367 ; of vendor and vendee, 3313 
 
 to 3315. 
 Indemnity, 710 to 714, 1393, 1394, 3337 to 3330, 3394a. 
 
 Right of officer to, 472, 473. 
 Independent Agreements, 701, 
 Indian Reservation, 1736, 1737. 
 Indian Treaty, 1736, 1737. 
 Indictment, 913 to 920. 
 
 And see Criminal Law. 
 
 Infant, 2042 to 3044. 
 
 Error in decree against, 151, 153, 1474. 
 Inferior Courts, 3135 to 3130, 3143. 
 Informations, 901 to 907. 
 
 And see Criminal Law. 
 Injunctions, 1107, 1134 to 1148, 1285, 1386, 1403 to 1414. 
 
 Against banks, 353 to 360. 
 
 To restrain foreign suit, 550. 
 
 Against municipal corporations, 3398. 
 
f ABLE OP 8UfiJEC*S. XTii 
 
 Injiinotion Bond, 304f) to 2048 
 Inland Navigation, 485. 
 
 Innkeeper, 2049,, 2050. 
 Innocence, Presumption of, 3iJiJl. 
 Insanity, Proof of, 1730 to 1735, 3295. 
 Insolvency, Of corporations, 743, 743. 
 
 As ground of set off, 1230, 1231. 
 
 Insolvent Laws, 593, 1840, 
 Inspectors of Elections, Liability of, 17, 1894. 
 
 Insurance against Fire, 2051 to 2071. 
 
 Intent, Criminal, 783, 801, 803, 806, 843 to 845, 873 to 875. 
 
 Interest, 2073 to S074, 951. 
 
 Foreign, 570 ; Usurious, 3193 to 3300. 
 Interpreter, 11, 2686. 
 
 Intoxicating Drinks, 653 to Ooo, 2854 to 3860. 
 Irregularities, In attaolunent cases, 274 to 276. 
 
 In sale by guardian, 1977 to 1979. 
 
 Laclics in taking advantage of. 1431 to 1433, 3712, 3755 to 2761. 
 
 Waiver of, 2762, 3763, 3335 to 3339. 
 
 What not regarded, 146 to 148, 1544 to 1553. 
 Jail Limits, Bond for, 988, 989. 
 .lettison, 3357, 3358. 
 
 Joinder of Actions, 77 : In Equity, 1309 to 1314. 
 Joint and Several Demands, 43, 44, 469. 
 
 Joint Debtors, 3075 to 3078, 018, 1917. 
 
 Joint Defendants, Discontinuance as to part, 3640, 2641, 771. 
 
 Joint Offenses, 856, 865 to 867, 891. 
 
 Joint Powers, 3633, 2624. 
 
 Joint Stock Companies, 3459 to 3401. 
 
 Joint Wrong Doers, 3093. 
 
 JTudg^e of Probate, 2079 to 2083. 
 
 Judgment Creditor's Bill, 1189 to 1210, 1437, 1459, 1460, 1486, 2978. 
 
 Judgments and Executions, 2083 to 2124, 3714 to 2721. 
 
 In Criminal cases, 884 to 886, 940 to 944. 
 
 Relief against in Equity, 1131 to 1130. 
 
 Amendments of, 98, 99. 
 
 Setting aside, 274 to 376, 380, 381, 314, 1539. 
 
 Proof of, 1791 to 1798 
 
 On probate appeal, 183. 
 
 Agamst surety on appeal from Justice, 177. 
 
 When surety bound by, 3047, 3048. 
 
 Foreign, 2139 to 3143. 
 
 In Justices' Courts, 3149, 3150, 2136, 2173 to 2180, 3181 to 3185.. 
 
 Sale of corporate franchise, 3538 to 2530. 
 
 Conclusiveness of, 3122 to 3134, 2934, 3307, 526, 
 Judicial discretion, 1539 to 1543, 2347. 
 Judicial Immunity, 3334, 
 Judicial Notice, 1812 to 1818. 
 Judicial Power, 540 to 543, 663. 
 Judicial Presumptions, 1801 to 1818. 
 Jurat, 94, 95, 1369. 
 
 Jurisdiction, 3135 to 3147, 150, 168 to 170, 353 to 258, 465 2437 
 2438, 2753, 3308. 
 
 In criminal cases, 899, 900, 940 to 944. 
 In equity, 1117 to 1120, 1253, 1254, 1533 to 1536. 
 Inquiry into, See Habeas CoRPUia. 
 
^Yiii TABLE OP SUBJECTS. 
 
 Jury, 3143, 2144. 
 
 Jury Trial, In Criminal Cases, 613, 614, 986, 987, 933 to 927. 
 In civil cases, 2044 to 2677. 
 
 Justices' Court§, 3145 to 2188. 
 Appeals from, 157 to 177. 
 Certiorari to, 539 to 539. 
 Commitment by, 899, 900, 944. 
 Garnisliee proceedings, 1915 to 1924. 
 Kules as to jurisdiction, 3125 to 2139, 3145 to 2147. 
 
 Justices of the Peace, 651, 2189, 2190. 
 
 Justices of tlie Supreme Court, 3191. 
 
 Ladies and Lapse of Time, 515, 516, 1138, 1431 to 1440, 1522 to 1524, 
 
 2104, 2118, 2119, 3713, 3755 to 2707. •' 
 
 Laches in performing land contract, 3005, 3006, 3015, 3016. 
 Lake Navigation, 485. 
 Lalces, Boundary on, 1016. 
 Land Board, 1775, 1929 to 1938, 2621, 2622, 3920. 
 
 Land Contract, 2192 to 2204, 696, 706 to 709, 1431. 
 When a mortgage, 2313 to 2318. 
 Control of by administrator, 1596 to 1598. 
 Homestead in land contracted for, 2006 to 2009. 
 Specific Performance, 2995 to 3032. 
 
 Land Warrant, 2205, 2206. 
 
 Landlord and Tenant, 970 to 973, 1617, 1618, 2307 to 2318. 
 
 Action for use and occupation, 09 to 72. 
 Lands and Land Titles, Jurisdiction of Equity, 1120, 1103 to 1178 
 Larceny, 810 to 814. 
 Law and Fact, Questions of, 334, 405, 1883, 1883, 2654 to 2C03. 
 
 Wlien jury judges of the law, 2143. 
 Law of the Land, 610 to 025. 
 Laws, Conflict of, 569 to 576. 
 Laws, Foreign, Proof of, 1799 to 1803. 
 
 See Conflict of Laws, 569 to 576. 
 Lease, Declaration on, 2538, 2539. 
 
 See Landlokd and Tenant. 
 Legacies to Religious Societies, 3298 to 3301, 
 Legal Fictions, 3320. 
 Legal Tender Act, 589, 590, 3147. 
 Legislature, Election of Members, 640,1818. 
 
 Delegating legislative power, 008, 609, 
 
 Judicial notice of journals, 1818. 
 
 Control of municipal corporations, 2400. 
 Levy, 3088, 2093, 2284 to 2287. 
 Lewd and Lascivious Cohabitation, 865 to 867. 
 Lex Loci, 569 to 576, 717. ;: ■ 
 
 Libel, 3219 to 2222. 
 
 Library Moneys, 2233, 
 License to Sell Lands, 1599 to 1610. 
 License to Sell Liquors, 053 to 055. 
 Licenses in Detroit, 1031 to 1033. 
 Lien, Of Mechanic, 2204,10 2307. 
 
 Of vendor, 1307, 1308, 3313, 3314. 
 
 Of vendee, 3215. 
 
 Of carrier, 495 to 497. 
 
 Equity cannot create, 1230. 
 
TABLE OF SUBJECTS. 
 
 Limitation of ActioiiiS. 3334 to 3235, C,:ir, to 638, ILW, 1311 to 
 
 1317, 3390, 3396. 
 
 Writs of error, 1580 to 1583. 
 
 Plea of statute of limitations, 3579. 
 Liquidated Damages, 954 to 960. 
 Liquors, Sale of, 617, 653 to 055, 3858 to 3800. 
 
 liog Driving and Booining^ Coinpanie!*, 33.36 to 3330. 
 
 Lost Files, 2637. 
 
 Lost Goods, 584, 1914. 
 
 Lost Instruments, Relief Upon, 471, 1237. 
 
 Machinery, "When Fixtures, 1850 to 1853. 
 
 Malice, 784 to 793. 
 
 ]nandamu§, 2340 to 3350, 3803. 
 Manslaughter, 78 to 86, 774 to 783. 
 Manufacturer, Action liy, where article ordered is not taken, 73, 74, 
 
 953. 
 
 Title to property being manufactured, 700. 
 
 ITIaritime Law, 3357 to 3263. 
 Marriage, Promise of, 482 to 484. 
 
 Proof of, 857 to 859. 
 
 Divorce, 1047 to 1059. 
 Married Woman, Acknowledgment of deed by, 4 to 10. 
 
 AVitness in criminal case, 930. 
 
 Bill in equity by, 1300, 1308. 
 
 May be guardian of minor, 1970,1971, 1980. 
 See Husband and Wu'e. 
 Master and Servant, Liability for Negligence, 3417 to 2427. 
 
 Hiring by the day, 603. 
 Master in Chancery, Proceedings Before, 1442 to 1467. 
 
 Mechanic's Lien, 2264 to 2367. 
 Mental Capacity, 1735, 1730 to 1735, 3205. 
 Merger, Of Mortgage, 1070 to 1073, 2350,2351. 
 
 Of parol in written contracts, 673 to 670. 
 
 Of misdemeanor, 835. 
 
 Of demand in judgment, 3075, 2076. 
 Merits, Affidavit of, 1441, 2030. 
 
 inicliigan Ceiitral Railroad Company,' 3208, 2309, 487 to 
 490, 494. 
 
 Michigan Sonthern Railroad Company, 3270 to 2376, 493, 
 493. 
 
 Millers and Mill Owners, 2277 to 3380. 
 
 Action for flowing lands, 18 to 31. 
 
 Indictment, 881 to 886, 3304. 
 Military Draft, 1074. 
 
 Mingling Poison with Food, &c., 801 to 803. 
 Mining Companies, 66. 
 
 Ministerial Ofllcer, Protection by Process, 3433 to 3338, 2853. 
 Misjoinder, Of complainants, 1272, 1314. 
 
 Of defendants, 1375 to 1279, 1367. 
 Misnomer, 737, 3945. 
 Mistake, Relief Against in Equity, 1153 to 1159. 
 
 In acknowledgment of deed, 2, 
 
 In deed, 1003, 1003, 1005, 3933 to 3934. 
 
 In award, 205, 206, 
 
 In militaiy draft, 1074. 
 
 In statute, 737. 
 
 In printing statute, 3063. 
 
TABLE OF SUBJECTS. 
 
 Of law, 674, 675. 
 
 In legal proceedings, 1352, 3080, 3088. 
 
 In elections. See Elections. 
 Moderator of School District, 15. 
 Money had received, 54 to 63. 
 Moneys, Eoreign, 3190. 
 
 Interest upon, 2072 to 3074, 8039. 
 
 Usury, 3193 to 3200. 
 
 What an officer may receive, 3190. 
 
 llortgage of Chattels^ 3381 to 3307, 574, 575, 3153. 
 
 Fixtures, 1850 to 1852. 
 Mortgage of Corporate Franchise, 733, 3517 to 3519. 
 
 Mortgage of Lands, 3308 to 3396, 3339. 
 
 Dower in mortgaged lands, 1070 to 1072. 
 
 Waste after foreclosure, 35. 
 
 Ejectment under, 1081, 
 
 Affecting Fixtures, 1850 to 1852. 
 
 Purchase subject to, 3313. 
 Multifariousness, 1309 to 1314. 
 
 9Iunlclpal Corporationin, 3397 to 3403; Suits Against, 656, 3403. 
 
 Detroit city, 1037 to 1046. 
 
 Municipal taxation, 633. 
 
 Assessments for improvements, 3133 to 3134. 
 Murder, 774 to 795, 918, 1748. 
 Name, 737, 1091 to 1093, 1247, 3474, 2945. 
 
 Bfavigable Waters, 3404, 3415. 
 
 Action for obstructing, 22, 23. 
 Necessaries, 2043. 
 Ne Exeat, 1388. 
 
 IVegligence, 3416 to 3437. 
 Negotiable Paper, 1934, 1962. 
 
 See Bills op Exchange and Promissoby Notes. 
 New Promise, 3225 to 2228. 
 New Trial, 1235, 1236, 1540, 1588. 
 On quo warranto, 3894, 2895. 
 Next Friend, 1636 to 1638, 2630. 
 Next of Kin, 1590, 1616. 
 Non-Imprisonment Act, 895. 
 Non-Joinder, 1206, 3570, 3571. 
 Non-Resident Debtors, See Attachment. 
 Non-Resident Defendants, 1538 to 1536. 
 Non-Suit, 3667. 
 Notaries Public, 663. 
 
 Notice, 2428, 2439, 1350, See Reookdisg Laws. 
 Of protest, 405 to 430. 
 Of defense, 3583 to 3588. 
 Of hearing .and motions, 3770, 3798 to 3800, 
 To quit, 3301, 3316, 3317, 2600, 
 Of tax sales, 3101, 3103. 
 In attachment cases, 271 to 273. 
 Of trial in appeal cases, 173, 174. 
 To terminate contract, 718. 
 Of proceedings in equity, 1418 to 1431. 1430. 
 Of equities by purchaser, 450 to 466. 
 To guarantor, 1948 to 1950. 
 Of sales on execution, 2089, 3098. 
 Of legal proceedings es.scntial to jurisdiction, 3133, 3335. 
 
TABLE OF SUBJECTS. 
 
 Of chattel mortgage, 3294 to 2300. 
 
 Through title deeds, 3429, 3211. 
 
 Of judgment in Circuit Courts, 3730, 3721. 
 
 Novation, 3430. 
 Nudum Pactum, 3315. 
 
 IVuUaiicc, 881 to 886, 3397, 3431, 3432. 
 
 In street, 3343. 
 
 Enjoining, 1140 to 1143. 
 Oatli, See Affidavit. 
 
 Official, of Sheriff, 2975. 
 Objection to Evidence, 1669 to 1673. 
 Obscene Publications, 864. 
 Obstructing Navigable Waters, 33, 33. 
 Obstructing Streets, 3242, 3257 to 3363. 
 Occupancy essential to Homestead, 1994 to 1997. 
 Occupying Claimants, 1083 to 1087. 
 
 Offlcer, 3433 to 3443 ; De Facto, 736, 757, 3443. 
 
 Arrest by, 783, 898. 
 
 Nonfeasance, 17, 894, 897. 
 
 Injunction against, 1134 to 1139. 
 
 Return to execution, 1193 to 1196,3440. 
 
 Protection by proces.s, 3483 to 2438, 38.53. 
 
 Restrictive .appointment, 1043, 3081. 
 See Quo Warranto. 
 ^ Omnia Rite Acta, 3309. 
 Ontonagon, 2864 to 2870. 
 Opinions of Witnesses, 1734 to 173.1 
 
 Ordinance of 17§7, 3444 to 3450. 
 Parol Agreements, 1899 to 1914. 
 
 Merged in written, 673 to 676. 
 Parol Evidence, 1761 to 1783, 1935. 
 Parties to Suits, At Law, 39 to 44. 
 
 In Chancery, 1255 to 1383. 
 
 As witnesses, 1637 to 1654. 
 
 In specific performance, 3030, 3031. 
 
 Partnerships, 3473 to 2476. 
 Partition, 1180 to 1183, 1398, 1399, 1,533, 
 
 Partner»iliip, 3451 to 2488. 
 
 Submission to arbitration by one, 187, 188. 
 
 Assignment by, 313 ; Offense by, 891. 
 
 Lands owned by, 1026, 3471, 2472. 
 
 Admissions by partners, 1730. 
 
 Insurance by one, 2063 to 3066. 
 Passengers, Carriers of, 502 to 508. 
 Passing Counterfeit Money, 868 to 880. 
 Patent for Lands, 1166, 1767, 1768, 1941 to 1944, 3930. 
 
 Payment, 2489 to 250,-), 698, 099, 2301 to 2303. 
 
 To offlcer, 2190. 
 
 Conditional, 391 to 395, 438, 
 
 Of mortgage, 2390 to 2396. 
 
 Reviving debt by, 2328 to 2280. 
 Peace, Bills of, 1163 to 1179. 
 Penalty, Distinguished from Liquidated Damages, 954 to 960, 
 
 Jurisdiction of equity as to, 1184 to IIBS. 
 Perjury, 847 to 850. 
 
 Charge of, 2232, 2986, 3991. 
 Performance, Specific, 2995 to 3033. 
 
TABLE 01* SUBJECTS. 
 
 Physician, 2500. 
 
 Plank Road Companies, 3507 to 2530, 3274. 
 Suit for subscriptioiLS to slock, 64, 65, 
 
 Pleadings, 3531 to 3501. 
 
 In Justices' Courts, 3151 to 3153. 
 
 On probate appeal, 181, 182. 
 
 Bankruptcy, ^;mjs clarrien, 331. 
 
 Under Boat and Vessel Law, 440 to 447. 
 
 Allegationofdamages, 970, 973, 988, 989. 
 Plea in Equity, 1333 to 1335, 1400 to 1402. 
 Pleadings in Equity, 1237 to 1365. 
 Poison, Mingling with Pood, &c„ 801 to 803. 
 
 Police Court of Detroit, 3592, 2593. 
 Poor, Support of, 3075. 
 
 Possession, Change of, in Sale of Chattels, 1890. 
 Of goods mortgaged, 2282, 2283. 
 
 Possession of Lands, Notice to Purchasers, 450, 3594 to 3590. 
 Proceedings to recover, 2598 to 2618, 542. 
 Injunction will not disturb, 1146, 1147, 3597. 
 
 Powers, 3619 to 2624, 3391. 
 Of attorney, 994, 995. 
 Practice in Chancery, 1366 to 1538. 
 
 Practice in Circuit Courts, 3635 to 3752. 
 
 RemoYal of suits to U. S. Courts, 771. 
 See Attaciement, Cebtioraki, Ekkok, Questions Re- 
 served, Replevin. 
 Practice in Criminal Cases, See Criminal L.vw. 
 Practice in Special Cases ; Attachment, 253 to 307. 
 
 Mandamus, 2253 to 3356, 
 
 Quo Warranto, 3880 to 3895. 
 
 Forcible entry and detainer, 2594 to 2018. 
 
 Replevin, 2935 to 2900, 
 
 Practice in Supreme Court, 2753 to 2817. 
 
 See Appeal from Ciiancbhy, Cbbtiohari, Error, IsJas- 
 DAMus, Questions Reserved, Quo Warranto. 
 Pre-emption, 3803, 3864 to 2870. 
 Presumptions, 1020, 1040, 1801 to 1818. 
 
 Of payment, 3396, 2497, 2498. 
 Principal and Accessory, 930. 
 
 Principal and Agent, 3818 to 2833, 3816 to 3318. 
 Suit on contract made with agent, 2547. 
 See Agent. 
 
 Principal and Surety, 3834, 2844. 
 
 Discharge of surety by giving time to principal, 1951. 
 Privileged Communications, 331. 
 
 Probate Courts, 2845 to 3851. 
 
 Appeals from, 178 to 183. 
 
 Assignment of dower in, 1073. 
 Probate of Will, 3293 to 3297. 
 Probate Sales, 1599 to 1610, 1975 to 1980. 
 
 Process, From U. 8 Courts, 78, 768, 769. 
 
 In Circuit Courts, 2625 to 2629. 
 
 Style of, 657, 3796. 
 
 In Justices' Courts, 2161, 2163, 2171, 2172. 
 , B Protection by, 3433 to 2438, 3852. 
 
TABLE OF SUBJECTS. xxili 
 
 Prochien Ami, 1366, 1367, 2630. 
 
 Profert, 3551. 
 
 Profits Lost, Recoverable as Damages, 966, 967. 
 
 Prohibition, Writ of, 3853. 
 
 Prohibitory Liquor Law», 608, 609, 617, 6.53 to 655, 1711, 38.54 
 to 3800. 
 
 Promise to Marry, 483 to 484. 
 
 Promissory Notes, See Bills op Exciianoe and Peomissort Notes, 
 373 to 478. 
 
 Prosecutinjir Attorney, 3801, 
 Protest, Notice of, 405 to 480, 
 Public Grounds, 3154 to 3157. 
 
 Public Lands, 3863 to 2870, 1767, 1768, 1775, 
 
 State Lands, 3043 to 3046, 
 Public Sewers, 3399, 3433 to 2427, 
 Public Trust, See Powers, 3619 to 3624. 
 Public Use. See Eminent Domain. 
 . Purchasers, Bona Fide, 450 to 460. 
 Quantum Meruit, 49 to 53. 
 
 Questions Reserved, 3871 to 3879. 
 Quieting Title, 1163 to 1179. 
 
 Quo Warranto, 3880 to 3895. 
 Against banks, 361, 363. 
 
 Railroad Corporations, 3896 to 3901. 
 
 Banking by, 723. 
 
 Fencing track, 1848, 1849. 
 Rape, 796 to 800, 
 Ratification, 736, 1913, 1938, 2831 to 3833, 3318, 
 
 Of contract by infant, 2044. 
 
 By partnership, 3460, 2401, 3465, 3466. 
 Reasonable Regulation, 503 to 506. 
 Reasonable Time, 386 to 388, 401 to 404, 3153. 
 Receiver, Foreign, 1853, 1854. 
 
 In Chancery, 1433 to 1434. 
 
 Of stolen goods, 815 to 818. 
 Recitals, 1837, 1823, 1701, 1702, 1704. 
 
 Recognizance, 2902 to 2911. 
 
 Discharge of by arrest, 308. 
 
 On appeal from .Justices' Courts, 166, 107, 177. 
 Recorder's Court of Detroit, 937. 
 
 Recording; Laws, 2913 to 3938. 
 
 Foreign, 573 to .575. 
 
 Proof of records, 1785, 1786, 1789. 
 
 Notice to purchaser of equities, 450 to 401. 
 
 Chattel mortgages, 3394 to 2300, 2920. 
 Records, Proof of, 1783 to 1800. 
 
 Contradicting, 1778 to 1782. 
 
 Recoupment, 3939 to 3931, 53. 
 
 For damages by carriers, 500, 501. 
 Redemption, From execution sales, 2109 to 3113, 
 
 From mortgages, 601, 1300 to 1306, 3383 to 3390. 
 
 By banks, 363 to 367. 
 
 By guardian of minor, 1983. 
 
 From chattel mortgage, 3305, 
 Referees, Trials before, 3698 to 3700. 
 Reform School, 940, 941. 
 
xxiv TABLe ()F SUBJfiCl'S. 
 
 Regents of the University, 3185 to 3189. 
 
 Rehearing, 1514. 
 
 Religious belief of witness, 615. 
 
 Religious Societies, 2933. 
 
 Bequests to, 3398 to 3301. 
 
 Iteinedy, 3933, 3934, 
 
 Election of, 1115, 111(), 3734, 3933, 2972. 
 Removal of County Seat, 761. 
 Rents, When payable, 3318. 
 Repeal of Statutes, 3067 to 3074. 
 
 Replevin, 2935 to 3960. 
 
 Replevin Bond, 43, 44, 773, 29.j7 to 3960. 
 
 Roplication, In Cliaucery, 1438. 
 
 At law, 3591. 
 Reputation, AVlien evidence, 1730 to 1739. 
 
 Impeaclmient by, 1686 to 1689. 
 Rescinding Contracts, 693. 
 Reservation, Of lands by treaty, 1940 to 1943. 
 
 Of questions for Supreme Court, 3871 to 3879. 
 Res gestae, 676, 787 to 793, 817, 818, 1740 to 1751. 
 Res inter alios, 3306, 3305. 
 
 Res Judicata, 3961, 3307. 
 Respondeat Superior, 3417 to 3437, 3317. 
 Restraints upon alienation, 1033, 3385 to 3388. 
 Retrospective Laws, 594, 616, 1034, 1035, 1063, 3063. 
 
 Revised Statutes of 1§46, 2963. 
 Revivor of Suits, In equity, 1386, 1387, 
 
 At law, 3731. 
 Riot, Homicide in preventing, 780. 
 
 Riparian Rights, See Navigable Wateks ; Water Rights. 
 Rivers, As public highways, 3404 to 3415. 
 
 Boundary on, 2413. 
 
 Use of water, 3414. 
 Roads, See Ways, 3336 to 3375. 
 Road Funds, 3375. 
 Rule in Slielly's case, 3384. 
 Sale, Of corporate franchise, 3538 to 3530. 
 
 Of lands of minors, 1975 to 1980. 
 
 Of lands by executors, ifcc, 1599 to 1610, 
 
 For taxes, 3103 to 3111. 
 
 By land contract. See Land Contkact ; Specific Perform- 
 ance. 
 
 On execution, 3090 to 3108. 
 
 Under decree in Cliancery, 1518 to 1534. 
 See Vendor and Pukchaser. 
 Sanity, Evidence as to, 1735 to 1735, 339.'). 
 Satisfaction, Of judgment, 3093, 3093. 
 
 Of mortgage, 3391 to 3396. 
 School Lands, 3043. 
 
 Schools and Scliool Districts, 3963 to 2967, 15. 
 
 Scienter, 1895. 
 
 Seal, Imports consideration, 578. 
 
 Of corporation, 1834. 
 
 To contracts, 679, 
 Secondary Evidence, 1833 to 1837, 3333. 
 Security for Costs, 176, 3167, 3055. 
 Seduction, 581, 683. 
 
TABLE OF SUBJECTS. 
 
 Seizin, Prool' of, 30, 31. 
 Sclf-aefense, 774 to 771i, 7»3. 
 Sentence, 940 to 944. 
 
 Set Off, 3968 to 2973. 
 
 In equity, 1318 to 1330, 318:3. 
 Settlement, Of accounts, 1809. 
 
 Of exceptions, 3725, 2736. 
 
 Of cases made, 3735 to 3737. 
 Sewers, Liability for defects, 2399, 2433, 3427. 
 ShcUy's case, 3384. 
 
 Sheriff, 3973 to 3978, 308. 
 
 Assignment of attachment bond, 306, 307. 
 
 Amendment of return, 370. 
 Signature, 171. 
 
 To written instruments, admission of, 433 to 436, 3695, 3696. 
 
 Slander, 3979 to 2994. 
 Special Verdict, 3668.to 3670. 
 
 .Si»ecific Performance, 399.; to 3032. 
 Specific Taxes, 767, 3121, 3133. 
 
 On Mich. Southern R, R. Co., 3371 to 3376. 
 Spirituous Liquors, 608, 609, 617, 652 to 6.55, 1711, 2854 to 2860. 
 
 Stamp§, 3033, 3034, 593, 594. 
 
 Stare I>ecisi§, 3035, 3036. 
 State Insolvent Laws, 593. 
 
 State Lands, 3043 to 3046. 
 
 State of michigan, 2448, 2449, 3037 to 3042, 
 
 State Pri§on, 96, 3047. 
 
 State Treasurer, Embezzlement by, 819 to 830. 
 
 StAtutes, 3048 to 3074. 
 
 For refunding bounties, 479 to 481. 
 
 For draining lands, 1075, 1076. 
 
 Of other States, proof of, 1799 to 1803. 
 
 Pleading statutes, 1351, 2544 to 2546. 
 
 Action upon, 77. 
 
 Judicial notice of, 1817, 1818, 1803. 
 
 Construction of, 607, 610, 1098, 1915, 3048 to 3060. 
 Statute of Frauds, 1899 to 1914, 1619. 
 
 Declaration on contract within, 2533, 3534. 
 See Specific Pebfoemance, 
 Statute of Limitations, 3324 to 3235. 
 
 And see Limitation of Actions. 
 Stay of Execution, 2084, 2137, 3181, 3183. 
 
 Appeal after stay, 159, 
 Stipulated Damages, 954 to 960, 3033. 
 St. Mary's Falls Ship Canal Co., 634. 
 Stray Beasts, 1634. 
 Streets, See Ways, 3336 to 3375. 
 Sub-letting, 2313 to 2214. ' 
 Subpoena in 'Chancery, 1.388 to 1401; 
 Subrogation, 3184. 
 Subscribing Witness, 1834, 3396. 
 Subscriptions for public purposes, 585, 715, 716. 
 Summary proceedings to recover lands, 3594 to 3618. 
 Summons, From Justice, service of, 3163, 3163. 
 
 In Chancery, 1443 to 1450. 
 
 D 
 
TABLE OF SUBJECTS. 
 
 Sunday, 130, 532, 680, 681. 
 
 Superintendents of Poor, 3075. 
 Supervisor, Replevin for assessment roll, 2935. 
 
 Suit against, 3135, 3136, 
 Supervisors, Board of, 430 to 433, 759, 760, 645 to 647, 3163. 
 Supplemental Bill, 1381 to 1387. 
 Supreme Court, Practice in, 2753 to 2817. 
 
 Questions reserved, 2871 to 2879. 
 Surety, 2834 to 2844. 
 
 On appeal from .Justice, 177. 
 
 For costs, 176, 2167, 3055. 
 
 In injunction bond, 2045 to 2048. 
 
 Relief of in equity, 1127. 
 Surplusage, 3532, 2549, 2550. 
 Surrender, Of lease, 2215. 
 Survey for road, 1783. 
 Survivorship of actions, 42. 
 Swamp lands, 3044 to 3046, 
 Tacking mortgages, 2343. 
 
 Taxation and Tax Sales, 3076 to 3141, 620, 626 to 634, 765. 
 
 Trespass against tax purchaser, 3170, 3171. 
 
 Receipt for taxes as evidence, 1820. 
 
 On mortgaged lands, 2349, 
 Tax-payer, Bill by, 1137 to 1139, 
 Taxes, Specific, 767, 3121, 3122, 
 
 On Michigan Southern R. R. Co., 2271 to 2276. 
 Team, Exemption of, 2113 to 2117. 
 Tenant at Will, 2199 to 2201. 
 Tenant by the Curtesy, 945. 
 
 Tenants in Common, 3142, 3143, 977, 1148, 1180 to 1183. 
 
 Tender, 3144 to 3148, 589, 590, 2382. 
 
 Of deed under land contract, 2194, 2198. 
 
 Territorial Council, 3149. 
 Territory of Michigan, Courts of, 770. 
 Threats, "When Duress, 1078. 
 
 Time, 3150 to 3153. 
 
 Ambiguous, 678, 3150, 
 
 Reasonable time, 386 to 388, 401 to 404, 3153. 
 T^tle, By iudgment, 2085. 
 
 Trial of by justice, 2168, 2169. 
 Torts, Waiver of, 46 to 48. 
 
 Town Plats, 3154 to 3157, 3249 to 3252, 
 Town Sites on Public Lands, 2864 to 2870. 
 
 Townships, 3158 to 3163, 
 
 Notice of special meetings, 3074. 
 Transcript of Judgment, 2186, 2119. 
 
 Appeal after transcript, 161. 
 Treasury Notes, Tender in, 589, 590. 
 
 Treaty, 3164 to 3169. 
 
 Trespass, On lands, 974 to 977, 1843 to 1849, 3170 to 3172.- 
 
 On government lands, 2863. 
 
 To person or personal property, 34 to 36. 
 
 On water front, 2415. 
 Trials, In civil cases, 2644 to 2700. 
 
TABLE OF SUBJECTS. 
 
 In criminal cases, 922 to 935. 
 
 Before Justices, see Justices' CotniTe. 
 Troyer, 28 to 33, 978 to 983, 1836. 
 Trusts and Trustees, 3173 to 3184, 1160 to 1162, 2096, 2097, 2310, 
 
 3311, 3167. See Assignments. 
 Uncertainty, in verdict, 2673 ; In deed, 1001, 1002, 3323. 
 
 In assignment of errors, 2790 ; In award, 195 to 198. 
 Uncurrent Money, Payment in, 2505. 
 Under Sheriff, 2974. 
 
 United States Courts, 768 to 771; Criminal Jurisdiction, 78 to 88. 
 United States Lands, 2862 to 2870, 1767, 1768, 1775. 
 
 University of ^Michigan, 3185 to 3189. 
 
 Usage, 326, 491, 546, .547, 1776, 3190. 
 Use and Occupation, Action for, 69 to 72. 
 User, Proving corporation by, 730 to 732. 
 
 Uses, 3191. 
 
 Usury, 3192 to 3200. 
 
 Payment of by surety, 2842, 2843. 
 Vacating Public Grounds, 1029, 1080. 
 Yalue, Fraud in regard to, 1896 to 1898. 
 
 Variance, 2555 to 2561, 2694, 3201, 3202. 
 
 Vendor and Purchaser, 3203 to 3316, 1899, 1906 to 1908, 
 
 See Contracts ; Damages. 
 Vendor's Lien, 1307, 1308, .3313, 3214. 
 Venue, 22, 829, 1082. 
 Verdict, 2668 to 2677, 
 
 Defects cured by, 2564, 2565, 
 
 Impeaching witness by, 3303, 3303. 
 Vested Rights, 474, 594, 616, 1063. 
 Void and v oidable, see Jurisdiction. 
 
 Void contracts, 87 to 90, 239 to 241, 1884 to 1889, 1912, 2001 tc 
 
 2004. 
 
 Voidable contracts, 1862, 1863. 
 
 Void sale by Sheriff, 2977. 
 Voluntary Conveyance, 1865, 1870, 3210. 
 Votes, See Elections. 
 
 Wager, 3217, 3218, 
 
 W^aiver, 2452, 2611, 2646, 2648, 3319 to 3229. 
 Of laches under land contract, 3005, 3006. 
 Of notice by indorser, 419, 430. 
 Of forfeiture of corporate franchise, 740 to 742. 
 Of right to jury trial, 613. 
 Of errors, 1560, 1561, 3324 to 3329. 
 Of homestead right, 1998 to 3000. 
 Of jurisdictional defects, 2133 to 3135, 168 to 170. 
 
 Warehousemen, 3330, 3231, 323 to 328, 492 to 497. 
 
 W^arrant of Attorney, 3232. 
 
 Warranty, 1713, 3233. 
 Waste, 24, 25. 
 
 "Water Commissioners of Detroit, 1044, 1045. 
 Watercourses, Boundary on, 1015, 1016, 
 Navigable rights, 2404 to 2415. 
 
 "Water Rights, 3234, 3235, 1010, 1011, 1015, 1016. 
 
TABLE OP SUBJECTS. 
 
 'Ways, 3236 to 3275, 551, 648, 1035. 
 
 Certiorari in cases of, 531, 523, 529. 
 
 M^iU, 3276 to 3301, 1741 to 1745. 
 
 Witness, 3303 to 3304. 
 
 Action against, 16, 984. 
 
 Contempts by, 548. 
 
 Religious belief of, 615. 
 
 To deed, 991, 993. 
 
 Privilege of, 929, 1553. 
 Work and Labor, 49 to 53. 
 Writ of Assistance, 1535 to 1527. 
 Writ of Error, 1567 to 1581. 
 
 Return to, 3764 to 3766. 
 Written Instrument, Alteration of, 466. 
 
 Admission of in suit, 433 to 436, 3695, 369S. 
 
DIGEST 
 
 MICHIGAN REPORTS. 
 
 ACKNOWLEDGMENT 0¥ DEEDS. 
 
 1. STo part of the deed. The acknowledgment of an assign- 
 ment of a mortgage is no part of the assignment itself. Livingston v. 
 Jones, Har. Ch., 165. See Douglierty & Bandall, 3 Mich., 581. 
 
 2. Clerical error in. The certificate of acknowledgment at- 
 tached to a deed recited that the grantors came before the ofincer, and 
 acknowledged that they had executed "the foregoing mortgage." Held 
 to be evidently a clerical error, which did not vitiate. Ives v. Kimball, 
 1 Mich., 308. 
 
 3. By agents. Where the execution by one of the parties to an 
 arbitration agreement under the statute was by agent, the certificate of 
 the officer taking the acknowledgment of the agreement, that such party 
 appeared before him by such agent, for that purpose duly appointed, 
 and acknowledged the same, is sufficient evidence of the execution of 
 the agreement, and of the authority of the agent, to authorize the 
 arbitrators to act, and the Circuit Court to render judgment upon their 
 award. Mayor, &e., of Detroit v. JdcJcson, 1 Doug., 106. 
 
 4. By married woman. The acknowledgment of the deed of 
 a married woman is an essential part of the conveyance, without which 
 it would be of no force. And to give the deed validity, the acknowledg- 
 ment must be in compliance with the statute. Dewey v. Oampau, 4 
 Mich., 565. [The deed in quejstion was executed prior to the statute of 
 1855, Oomj). L.,p. 966.]' 
 
 1 1 
 
§ 13 ACKNOWLEDGMENT OF DEEDS. 
 
 5. The act of 1840 (S. L., p. 167) provided that rights of dower should 
 not be conveyed, unless hy deed executed by the wife, and acknowledged 
 by her " on a private examination, separate and apart from her husband, 
 that she executed the deed without fear or compulsion from any one." 
 It was held that a certificate in accordance with the prior law, that the 
 wife acknowledged the execution without any fear of compulsion of her 
 husband, was insufficient to bar dower under this act. Ba/rstow v. Smith, 
 Wal. Ch., 394. 
 
 6. A certificate in accordance with this act, except that it did not 
 state the acknowledgment to have been on a private examination, was 
 held void. Sibley v. Johnson, 1 Mich., 380. 
 
 7. Where the statute required the certificate to show that the wife 
 " acknowledged that she had executed the deed separately and apart 
 from her husband," it was held that a certificate that she " stated " she 
 had executed, &c., was insufiicient. Dewey v. Ganvpau, 4 Mich., 565. 
 
 §. The certificate is also void unless it show that the acknowledg- 
 ment was taken " separately " as well as " apart " from the husband. 
 ItM. 
 
 9. Under the act of 1855, {Comp. L., p. 966) a wife can make a mort- 
 gage of her own estate in the same manner and with the like cfl'ect as it 
 unmarried. And an acknowledgment apart from the husband is not 
 now requisite where a inarried woman conveys or incumbers her own 
 estate. Watson v. Thurber, 11 Mich., 4.J7. 
 
 10- A married woman gave a mortgage of her own lands to secure a 
 debt of her husband. The testimony showed that it was given with 
 reluctance, and after a good deal of persuasion "by her husband, and at 
 first she declined to acknowledge it ; but the officer testified that she 
 finally made an acknowledgment in the usual form, and she afterwards 
 freely admitted its validity to one who had purchased it. On bill filed 
 to foreclose it, she defended on the ground that it was obtained by 
 undue influence or coercion, neld, that the defense was not made out 
 by the evidence. Ibid. 
 
 11. Throng^Ii interpreter. There being no statute author- 
 izing the acknowledgment of a conveyance through a sworn interpreter, 
 where the officer is unacquainted with the grantor's language, it cannot 
 be thus taken. Dewey n. Gampau, 4 Mich., 565. 
 
 12. Out of the State. Where a deed was acknowledged before 
 a commissioner of deeds of this State, appointed for another State, and 
 the certificate of acknowledgment has his signature and seal to it, it is 
 sufficient, notwithstanding the certificate does not state that it was 
 given under his hand and seal. Harrington v. Fish, 10 Mich., 415. 
 
 13. A deed was executed and acknowledged in another State, con- 
 veying land in this State. The certificate of the proper clerk was made 
 
 2 
 
ACTION. § 19 
 
 and attached several years afterwards, certifying that the deed was 
 executed and acknowledged according to the "existing" law of the 
 State. Held a sufficient certificate to entitle the deed to record. Und. 
 See also Deeds. 
 
 14. Before interested officer. An officer cannot take the 
 acknowledgment of a deed to himself. But as under the statute parol 
 trusts in land are void, and there is no resulting trust in favor of one 
 who furnishes the consideration money for a conveyance, it is not a 
 valid objection to an acknowledgment that the officer who took it was 
 the real purchaser, but had the deed made to another person for his use. 
 Oroesbeck d. Sedey, 13 Mich., 329. 
 
 ACTION. 
 
 1. On the Case. 
 
 15. Against scliool officer. Where the moderator of a school 
 district refused to sign a warrant to a rate bill for teacher's wages, and 
 a judgment was afterwards recovered by the teacher against the district 
 for the amount due him, which was paid by a tax on the district, it was 
 held that a tax-payer who was assessed and had paid his part of the tax, 
 could not maintain an action against the moderator to recover what he 
 had paid. WaU v. Eastman, 1 Mich., 368. 
 
 16. Against tvitness. It is no answer to an action for damages, 
 occasioned by defendant's non-attendance as a witness, in obedience to 
 a subpoena, that the Court from which the subpoena issued refused, 
 on motion, to impose a fine upon the defendant for contempt in dis- 
 obeying the subpoena, but accepted his excuse. Prentiss v. Webster, 2 
 Doug., 5. 
 
 17. Inspectors of election act judicially in determining 
 whether a person offering to vote has the requisite qualifications as to 
 color or descent to entitle him to vote as a "white male citizen,'' 
 under the constitution; and they are not liable to an action for improp- 
 erly refusing a vote because the person offering it was partly of African 
 descent. Gordon v. Fa/rra/r, 3 Doug., 411. 
 
 1§. FIOAving lands. See the question discussed whether, 
 where one erects a dam on his own land, which causes the land of 
 another to be flowed, and then conveys the land on which the dam is 
 situated, a suit can be brought against his grantee for the nuisance 
 before he has been served with notice of it, and requested to remove it. 
 GaMweU v. Gale, 11 Mich., 77. 
 
 19. If such notice be necessary, and has once been given by the 
 owner of the land flowed, it will enure for the benefit of his grantee, or 
 of any one claiming title through or under him. Ibid. 
 
27 ACTION. 
 
 20. Where the declaration alleged that the plaintiff was lawfully 
 seized in fee and possessed of the land flowed, it was held that the whole 
 averment was material, and must be proved as laid. Held also, that 
 proof of plaintiff's possession under a claim of title, founded upon a 
 deed not emanating from the source of title, or traced back to a person 
 so claiming, did not raise a legal presumption of seizen in fee in the 
 plaintiff; and, further, that if such possession was evidence of seizen, 
 it was at most but a bare presumption, liable to be overcome by other 
 proof, as of title in a third person. IaiU v. Bwm, 1 Mich., 77. 
 
 21. Suit for flowing land, the declaration alleging seizen and posses- 
 sion in plaintiff. On the trial, the only evidence of title was possession 
 for about one year previous to bringing the action. It further appeared 
 in evidence, that previous to and at the time plaintiff took possession a 
 part of the tract was flowed by defendant. HM, that by reason of 
 defendant's prior possession, by flowing, of that part of the tract covered 
 by water, at the time plaintiff took possession, the latter could not sus- 
 tain his action without showing title in himself to the land flowed, or 
 that he entered and took possession of the tract by color of a paper title. 
 MiUerd v. Beeves, 1 Mich., 107. 
 
 22. Obstructing naTigable waters. An action for obstruct- 
 ing a navigable stream, though local at the common law, is transitory 
 by statute. Oomp. L., § 4344. Bwrna/rd v. Hinckley, 10 Mich., 458. 
 
 23. A county is not liable for the acts of its board of supervisors, in 
 causing a bridge to be erected over navigable waters, through a defect 
 in which an injury occurs to an individual using the stream. The 
 board, in such a case,' is acting in the exercise of its legislative power, 
 and the same rule controls that would control in the case of a bridge 
 erected by authority of the legislature. La/rkin «. Saginwio County, 11 
 Mich., 88. 
 
 24. For waste the proper remedy under our statute is an action 
 on the case. And the action may be maintained by a landlord against 
 the assignee of the lessee. Lee v. Payne, 4 Mich., 106. 
 
 25. A purchaser of lands at a mortgage sale, after his 
 title is perfected by failure of the mortgagor to redeem, may maintain 
 an action on the case, for an injury done to \he estate, maliciously, and 
 with knowledge of his rights, by the cutting and carrying away growing 
 timber, after the purchase and before the time for redemption expired. 
 Stout V. Keyes, 3 Doug., 184. 
 
 26. Injury to bridge. A joint action cannot be brought by 
 the overseers of two adjoining road districts, for an injury caused to a 
 bridge which is partly in each district. Highway Commisdoners v. Stock- 
 man, 5 Mich., 538. 
 
 27. Nor can the commissioners of highways of the township, on the 
 
 4 
 
ACTION. § 35 
 
 refusal of the respective overseers to prosecute, sue under the statute, 
 and recover in one action for the damages sustained by both districts. 
 
 lua. 
 
 2. Tbovbk. 
 
 2§. Trover may be brought by one having the possession of personal 
 property, and a mere stranger cannot question his right. CuUen v. 
 O'Ra/ra, 4 Mich., 133. 
 
 29. In cases vyhere property is wrongfully sold, the owner has his 
 election, to bring replevin, or to recover its value in trover. Eggleston 
 v. Mundy, 4 Mich., 295. , 
 
 30. Conversion. If one tenant in common disposes of property 
 to his own use, this is a conversion which makes him liable to the 
 other. Webb ». Mann, 3 Mich., 139. See ffiqitet «. AUison, 12 Mich., 328. 
 
 31. B., who was entitled to the possession of a certain chattel, re- 
 plevied it of H. On the trial he was nonsuited, and H. took judgment 
 for the value of the property, under the statute. B., still retaining the 
 property he had so replevied, brought trover against H., and recovered 
 the fuU value of the property, instead of damages for its temporary 
 detention. H. paid the judgment, and, claiming the property by virtue 
 of such payment, brought replevin for it against B. Hdd, that if H.'s 
 taking judgment against B. in the original replevin suit, for the value 
 of the property, amounted to a conversion, in paying the judgment in 
 the trover suit, he had only paid for the property he had converted ; 
 and if, on the other hand, the Court erred in giving B. damages for the 
 full value of the property, instead of damages foj its temporary deten- 
 tion, such error could not transfer the title of the property to H. ; and 
 in neither case could he recover. Hoag v. Breman, 3 Mich., 160. 
 
 32. Riglit of property. In trover the right of property is in 
 issue ; and to sustain the action, the plaintiff must prove property in 
 himself, either general or special. Stephenson v. Little, 10 Mich., 433. 
 
 33. Possession is evidence of property, but it does not preclude the 
 defendant from showing property in a third person. And this may be 
 done under the general issue. Ibid. 
 
 3. Tebspass. ^ 
 
 34. Whether trespass can be brought to recover the damages which 
 one has sustained by the unlawful detention of his property, after he 
 has recovered the property in replevin, quere. Delevan v. Bates, 1 
 Mich., 97. 
 
 35. Trespass is the proper action to be brought for an injury to 
 plaintiff's cow, caused by defendant setting his dog upon her. Wood v. 
 LaBue, 9 Mich., 158. 
 
 5 
 
§ 44 ACTION. 
 
 36. False imprisonment. If one is arrested on a void execu- 
 tion, and gives bond for the jail limits, the bond is void; and he cannot, 
 in an action for the imprisonment, recover damages for remaining in 
 the county, according to the terms of the bond. Fi(Mer v. Bowher, 11 
 Mich., 304. 
 
 4. On Contract: Geneeai Kules. 
 
 37. A debt not due when an attachment is sued out, cannot be 
 declared upon in the suit. Galloway v. Holmes, 1 Doug., 330. See also, 
 Hinchman v. Town, 10 Mich., 508 ; Hale v. OTiandUr, 3 Mich., 581. 
 
 38. If goods were sold upon credit, the vendor cannot, before the 
 credit has expired, maintain assumpsit therefor, even though he can 
 prove that the vendee induced him to sell by fraudvilent representations. 
 If he affirms the sale, he must be bound by it in all respects. Galloway 
 V. Holmes, 1 Doug., 330. 
 
 39. The parties to an action upon contract, must be those be- 
 tween whom the contract was made. lAtehfidd v. Garratt, 10 Mich., 
 426. See Township of LaOrange v. Ohapmmi, 11 Mich., 499; Cfilbertv. 
 Eanford, 13 Mich., 40. 
 
 40. Suit for use of anotber. Where suit is brought upon a 
 contract in the name of the promisee, for the use and benefit of another 
 person named, the promisee is the legal plaintiff, and it is not necessary 
 to show on the trial that the contract has been assigned to the person 
 for whose use the suit is brought. Fa/rwdl ». Bewey, 13 Mich., 436. 
 
 41. Suit was brought in the name of parties to a written contract, 
 for the benefit of assignees of such contract, and was sought to be sup- 
 ported by proof of labor done by the assignees in pursuance of an 
 arrangement between them and the contracting party, modifying the 
 terms of the contract, which arrangement was not shown to have been 
 authorized or assented to by the assignors. Held that the action could 
 not be maintained, as the modified contract was not between the parties 
 to the record. IMckjkM, i>. Ga/rratt, 10 Mich., 426. 
 
 42. SiirviTorsliip. A debt due to two or more jointly, after the 
 death of one must be sued in the name of the survivor. TeUer v. Weth- 
 ereU, 9 Mich., 464; Cote v. Dequindre, Wal. Ch., 64. 
 
 >43. A Joint and seTeral demand cannot be treated as the joint 
 obligation of less than all the debtors. Winslow v. Her rick, 9 Mich., 380. 
 
 44. Where, therefore, an action was brought on a replevin bond 
 against all the obligors, two of whom were defaulted, and the plaintiff, 
 instead of proceeding to trial as to the others, discontinued as to them, 
 and took judgment against the two who were defaulted, the judgment 
 was held erroneous. IMd. 
 6 
 
ACTION. § 50 
 
 5. Assumpsit. 
 
 45. The general nature of this action considered. Ward i). War?ier, 
 8 Mich., 508. 
 
 46. Waiving a tort. The owner of land on which a canal was 
 dug, and who appeared to have incurred the major part of the expense 
 of making it, gave notice to other individuals who had contributed to 
 its repair, that they must compensate him for its use at a rate which he 
 specified in his notice; and on their refusal, and continuing its use 
 under a claim of right to do so, he brought action in assumpsit to 
 recover compensation for the use. It was held. 
 
 That the law would not imply a promise to make compensation for 
 the use of the canal before the notice was given, and while it was per- 
 mitted by the plaintiff without objection, and without demand of 
 compensation. 
 
 Nor would the law imply such a promise after the notice, since any 
 implication of a promise was precluded by the denial by defendants of 
 aU right to compensation, and the assertion of an adverse right in them- 
 selves. The adverse entry, if the claim of right was unfounded, was a 
 naked trespass, upon which no duty to compensate would arise which 
 could be converted into a contract. Ibid. 
 
 47. A plaintiff may recover on a declaration for pasturing cows, on 
 proof showing that his land was used by defendant for that purpose. If 
 the use was without the plaintiff's assent, defendant was a trespasser, 
 and plaintiff might either sue him in trespass, or waive the trespass 
 and sue in assumpsit. (MANrmsra, J.) Welch i). Bagg, 12 Mich., 41. 
 
 48. One tenant in common of crops harvested them, but the other 
 drew them off, threshed them, placed them in his granary, and refused 
 to recognize any rights of his co-tenant therein, or to deliver his share. 
 Held, that this amounted to a conversion, but that the excluded tenant 
 might waive the tort and sue in assumpsit. Fiquet ii. Allison, 13 Mich., 
 328. 
 
 49. Ctuantum meruit. Where a party fails to comply substan- 
 tially with an agreement, he cannot sue or recover upon the agreement 
 at aU, unless it is apportionable. But where any thing has been done 
 under such agreement, from which the other party has received sub- 
 stantial benefit, and which he has appropriated, a recovery based upon 
 that benefit may be had on a quantum meruit. The basis of that recov- 
 ery is not the original contract, but a new implied agreement deducible 
 from the delivery and acceptance of some valuable service or thing. 
 AUen V. MeEibUn, 5 Mich., 449. 
 
 50. Where action is brought on a quantum meruit for labor done 
 under a special contract, which has not been substantially performed by 
 the plaintiff on his part, the plaintiff can in no case recover more than 
 
 7 
 
§ 59 ACTION. 
 
 the contract price ; and cannot recover that if his work is not reasonably 
 worth it, or if, by paying it, the rest of the work will cost the defendant 
 more than if the whole had been completed under the contract. Ibid. 
 
 51. The party in default in such case can never gain by his default, 
 and the other party can never be permitted to lose by it. Ibid. 
 
 52. Where in such case the Court excluded evidence offered by 
 defendant to prove that the work was not worth the contract price, and 
 charged the jury that if there had been a partial performance from 
 which defendant had derived benefit, plaintiff was entitled to recover 
 the contract price, deducting any damages which defendant had sus- 
 tained by reason of non-performance, it was held that both the exclusion 
 of evidence and the charge were erroneous. Ibid. 
 
 53. If in such case there are damages growing out of the non-per- 
 formance of the special contract, which do not enter into the contract 
 price, defendant may recoup them when sued upon a quantum meruit. 
 Ibid. 
 
 54. Money taad and received. An action will lie where 
 defendant has in his possession money which in equity and good 
 conscience belongs to the plaintiff; and it is not essential that there 
 should be an express promise to pay, or any privity between the par- 
 ties. Bea/rdslee «. Hoftcm, 3 Mich., 560. 
 
 55. If the facts are such as in a court of equity to entitle the plaintiff 
 to a decree for the money, when that is the specific relief sought, the 
 same state of facts will entitle him to recover at law in an action for 
 money had and received. Moore v. Mandlebaum, 8 Mich., 433. 
 
 56. Accordingly where an agent to sell lands purchased them of 
 his principal, concealing important facts, so that the transaction 
 amounted to a fraud upon the principal, and afterwards sold the land 
 at a higher price, if was held that the principal might recover from him 
 in this action the difference between the price paid by the agent and the 
 price at which the land was sold by him. Ibid. '• 
 
 57. And where an agent collected money for his principal, and the 
 latter afterwards assigned it to the plaintiff, it was held that the plaintiff 
 might recover it in this action after demand. Bea/rddee v. Morton, 8 
 Mich., 560. 
 
 58. Where plaintiffs, as agents, received a draft and forwarded it for 
 collection, not disclosing the agency, and on its being paid at maturity, 
 paid over the amount to defendant, and the draft proved to be a forgery, 
 and plaintiffs were compelled to refund the amount to the drawee, it 
 was held that they were entitled to recover from the defendant. Little 
 B. Derby, 7 Mich., 335. 
 
 59. And it does not vary the ease that plaintiffs, on receiving the 
 draft, advanced to the holder a part of the amount, and gave him a 
 
ACTION. § 67 
 
 certificate agreeing to account for the proceeds, and that defendant 
 bouglit this certificate, having first called upon plaintiffs for information 
 respecting the draft, and been informed that if he bought it the amount 
 would be paid to him if collected, as it probably would be, and that 
 plaintiffs would not have advanced money upon it, if they had not 
 believed it was all right. lUd. 
 
 60. The true ground of recovery in this and all other cases of money 
 paid by mistake is, that the money has been paid without any conside- 
 ration. IMd. 
 
 61. Money collected. A justice of the peace who receives 
 from a constable and applies upon a judgment before him depreciated 
 bank.bills, is liable to the judgment creditor for so much money in an 
 action for money had and received. The creditor is not confined to his 
 remedy upon the bond of the justice. Wdcli ». Frost, 1 Mich., 30. 
 
 62. And he is equally liable though the bills were current when 
 received, and become depreciated in the hands of the justice, after he 
 has tendered them to the creditor. Hmld v. Bennett, 1 Doug., 513. 
 
 63. Where a note is made payable to one man in trust for another, 
 and the payee receives the money upon it, he is liable to the party in 
 interest for the amount, in an action for money had and received. And 
 parol evidence is admissible to show the trust where it does not appear 
 on the face of the note. OatUn, v. Birchard, 13 Mich., 110. See supra, 57. 
 
 64. Subscriptions to corporate stock. Defendant having 
 signed the articles and subscribed for a portion of the capital stock of 
 an association formed under the plank road act of 1851, the 33d section 
 of which provides that the directors may require payment of the sums 
 subscribed to the capital stock, &c., it was held that such signing import- 
 ed a promise to pay the amount subscribed. Dexter and Mason Plank 
 Boad Co. i>. MiUerd, 3 Mich. 91. 
 
 65. The notice which the directors give under said 33d section, that 
 payments are required, must specify the place where the payment should 
 be made. Ibid. 
 
 66. One who, by signing the articles of association, becomes a stock- 
 holder in a company organized under the act to authorize the formation 
 of corporations for mining and manufacturing purposes, approved Feb. 
 5, 1853, and neglects to pay an assessment for the stock subscribed, for 
 sixty days after the same is payable by the call, and due notice thereof, 
 whereupon the stock is sold by the company in pursuance of said act, 
 but an amount less than the assessment realized therefor, is liable to the 
 company for the deficiency. Carson v. Arctic Mining Co., 5 Mich., 388. 
 
 67. A railroad company was formed under the General Eailroad Law, 
 and commissioners appointed to open books for subscriptions to the 
 capital stock. The commissioners, however, never opened any books, 
 
 9 
 
§ 75 ACTION. 
 
 but a subscription paper was circulated by an agent appointed by the 
 directors, on whicli defendant subscribed a sum which he subsequently 
 on several occasions promised to pay. Held that the subscription was 
 not binding. Shurtz v. Sclwolcraft and Three Rivers B. B. Go., 9 Mich., 
 369. 
 
 68. The cormnissioners act as a statutory board, and are alone author- 
 ized to receive subscriptions. They are not required to recognize or 
 protect any subscriptions not under their own auspices, and such sub- 
 scriptions cannot prevent other persons taking the entire amount of 
 stock not subscribed by the articles of association, whenever the com- 
 missioners shall open books. There is, therefore, no consideration for 
 any other subscriptions. lUd. 
 
 69. For use and occwpation an action will lie at the com- 
 mon law. Dwight v. Cutler, 3 Mich., 566. 
 
 70. Where the occupancy of premises by a tenant at will has been 
 beneficial to him, that is a sufficient ground to imply a promise to pay n 
 reasonable sum as a compensation for such occupancy, unless there is 
 something in the circumstances inconsistent with the notion of such a 
 promise, or of an obligation to pay. Ibid. 
 
 71. Defendant took possession of premises by permission, after 
 having made an oral agreement to purchase the same, which the owner 
 failed to carry into efi'ect. It was held that defendant was not liable for 
 use and occupation while the negotiations were pending. lUd. 
 
 72. But held further, that if he remained in possession after all nego- 
 tiation had ceased, and after being notified that he must pay rent if he 
 did so, he would be liable. lUd. 
 
 73. Action by manufacturer— order countermanded. 
 Where an article was ordered of a manufacturer at a specified price, 
 and work was done and materials tised towards its construction, but 
 before it was completed the order was countermanded, and the materials 
 remained in the manufacturer's hands, it was held that the manufacturer 
 could not recover on the common counts the value of such labor and 
 materials, but should sue on the special contract for being prevented 
 from performing it. Hosiner v. Wilson, 7 Mich., 294. 
 
 74. The manufacturer, in such case, is not compelled after the coun- 
 termand to go on and complete the article ordered before he can recover 
 for what he has done, but he may treat the countermand as a prevention 
 of performance on his part, and sue upon the contract upon that ground. 
 Ibid. 
 
 75. Account stated. It is not necessary, in support of an 
 account stated, to show the nature of the original transaction or indebt- 
 edness, or to give the items constituting the account. It is sufficient to 
 
 10 
 
ADMIRALTY COUBTS AND JURISDICTION. g 83 
 
 prove some existing antecedent debt or demand between the parties, 
 respecting whicli a balance was struck. Stevens I'D. Tvller, 4 Mich., 387. 
 
 76. But where there is no acknowledgment of indebtedness, or 
 promise to pay proven, such a count is not sustained. Ibid. 
 
 6. JOINDEE OP ACTIOKS. 
 
 77. An action founded upon a statute cannot be joined with one 
 common law. People «. Judges of Washtenaw Circuit Court, 1 Doug., 43-1 
 
 ADMIRALTY COURTS AND JURISDICTION. 
 
 78. Proce§§. In the absence of a treaty with Great Britain author- 
 izing it, the process of the District Courts of the United States sitting 
 in admiralty cannot be executed in Canadian waters. Tyler i). Peojile, 
 8 Mich., 320. 
 
 79. Crime on bigh §eas. Upon the high seas, every vessel, 
 public or private, is, for jurisdictional purposes, a part of the territory 
 of the nation where it belongs ; and an oflFense committed on board of 
 it is an offense committed against the sovereignty of that nation. Peo- 
 ple V. Tyler, 1 Mich., 161. 
 
 80. On forei§rii waters. But when a private ship enters a 
 foreign jurisdiction, it becomes, vrith all on board, in the absence of 
 treaty stipulations to the contrary, subject to the municipal laws and 
 control of the country it visits. lUd. 
 
 81. Crimes act of Congress of 1857. It does not necessa- 
 rily follow, because this act provides for the punishment of offenses 
 upon bays, creeks, havens and rivers, not within States nor forming a 
 part of the high seas, that the existence of such within the admiralty 
 jurisdiction must be assumed. Ibid. 
 
 82. Said act being amendatory and supplementary to prior acts of 
 identical extent, it is not to be supposed that it was intended to use 
 these terms in different senses at the different periods. And as there 
 were, at the date of the first act, navigable waters open from the ocean, 
 not admitted to have been within the exclusive jurisdiction of any par- 
 ticular State, and as upon the Pacific coast there are stiU some waters 
 of this description, there is no necessity to go beyond our own territory 
 to satisfy the terms of the act. The claim of jurisdiction should not 
 be extended into foreign parts unless such an intention is clearly 
 expressed in the act. lUd. 
 
 83. The jurisdiction of the States lying upon the lakes and their 
 connecting waters extends to the national boundary ; and said Crimes 
 Act, if it extends at all to these waters, can only take effect without the 
 United States, and within British waters. But, as a general rule, the 
 
 11 
 
§ 90 ADVERSE POSSESSION. 
 
 criminal laws of a nation cannot operate beyond ita territorial limits ; 
 and the exceptions to tliis rule are never understood to be included in 
 the general provisions of criminal statutes, but require to be specifically 
 mentioned and defined. Ibid. 
 
 84. The treaty between the United States and Great Britain of 1843, 
 which concedes to the vessels, &c., of both nations a right of passage 
 through the lakes and their connecting waters divided and appropriated 
 by the treaty, does not deprive either of that complete and exclusive 
 jurisdiction over that part of the waters on its side the line which any 
 nation may exercise upon land within its liniits. Ibid. 
 
 §5. Said Crimes Act was not understood or intended by Congress 
 to extend to any waters not essentially maritime. Nor was it intended 
 to go beyond the class of assaults made manslaughter under the former 
 statutes to which it was amendatory and supplementary ; or to do more 
 than provide for the case of death on land resulting from assavdts which 
 were already made punishable when death resulted at the place where 
 the fatal blow was given. Ibid. 
 
 86. And therefore manslaughter, committed by a mortal blow given 
 on the River St. Clair, beyond the boundary line between the United 
 States and Canada, and within a county of that Province, from which 
 blow death ensued on land, is not within the intent and meaning of said 
 act, though the blow was given on an American vessel. Ibid. (See the 
 general subject of admiralty jurisdiction over the lakes and navigable 
 waters connecting them considered, per Ckristianct and Mamjing, JJ.) 
 
 ADVERSE POSSESSION. 
 
 87. At common law where there is an adverse possession, the 
 legal title cannot pass by a conveyance from a person out of possession. 
 Qodfroy v. Disbrow, Wal. Ch., 360. 
 
 88. But such conveyance is not invalid between the grantor and 
 grantee ; and though the latter cannot enforce his rights under it in his 
 own name, he may do so in the name of his grantor ; the latter being 
 estopped from questioning the validity of his own deed. Stockton v. 
 WiUiams, 1 Doug. 546. 
 
 89. A mortgage, where the land is possessed adversely to the 
 mortgagor, is also void at the common law. Httbbard <b. Smith, 2 Mich., 
 307. 
 
 90. But by statute it is now provided that "No grant or convey- 
 ance of lands, or of any interest therein, shall be void for the reason 
 that at the time of the execution thereof such lands shall be in the 
 actual possession of another claiming adversely." Comp. L. § 3736. 
 
 . 13 
 
ALIMONY. 
 
 AFFIDAVIT. 
 
 91. Is a nullity if sworn to before a person not authorized to 
 administer oaths. GreenvauU v. Fa/rmers and Mechanics' Bank, 2 Doug., 
 498. 
 
 92. Under the Revised Statutes of 1838, the clerks of the Circuit 
 Courts had no power to administer oaths in vacation. lUd. But the 
 power is now conferred upon them. Oomp. L., § 4337. And since 1850 
 is possessed by tlieir deputies. Oomp., § 404 ; Dorr v. Cla/rk, 7 Mich., 
 310. 
 
 93. Wot correctly entitled in a cause, cannot be used therein. 
 As where in error it was entitled in the name of two as plaintiffs in 
 error, after one of them, on motion, had been allowed to proceed sever- 
 ally. Whipple V. WiUiams, 1 Mich., 115. Where there are several 
 parties it should be entitled in the names of all. Arnold v. Nye, 11 
 Mich., 456. 
 
 94. Tlie jurat must show that the affidavit was sworn to before 
 the officer signing it. Where it stated that it was "sworn and subscrib- 
 ed," without adding "before me," it was held_to be a nullity. Smart v. 
 Howe, 3 Mich., 590. 
 
 95. But when a complaint showed, in the body of it, that it was 
 sworn to before the proper officer, the words "before me" in the jurat 
 were held unnecessary. Cross v. People, 10 Mich., 34. 
 
 AGENT OF STATE PRISON. 
 
 96. The Statute of 1843 {S. L., p. 130) required the agent of the 
 state prison to give notice in a newspaper for sealed proposals for let- 
 ting the convicts. The agent, without giving such notice, hired convicts 
 to defendant for a term of years. The contract was held to be void ; the 
 mode of letting prescribed by the statute being a limitation on the 
 power itself, and not merely directory to the agent of the prison. 
 AgeM of the State Prison v. Lathrop, 1 Mich., 438. 
 
 ALIMONY. 
 
 97. A Court of Chancery has no jurisdiction of a bill filed for alimony 
 alone. Peltier v. Peltier, Har. Ch., 19. (For alimony in divorce cases, 
 see DrvoBCB.) 
 
 AMENDMENTS. 
 
 98. Of judgment. Ejectment. Plaintiff claimed the premises 
 under an execution sale. To prove a judgment on which execution was 
 
 13 
 
§ 100 APPEAL FROM CHANCERY. 
 
 issued, plaintiff gave in evidence the following journal entry, entitled in 
 the cause : " On hearing counselin this cause, ordered, on motion of plain- 
 tiiis' attorney, judgment for plaintiflFs on demurrer, and that it be 
 referred to the clerk to compute the amount due on the bond mentioned 
 in plaintiffs' declaration ; and the clerk having computed the amount 
 dvie by the condition of said bond at $800, the penalty thereof, to be 
 discharged on the pajrment of $634.11, with costs to be taxed." He also 
 ofTered in evidence the execution issued for the $800 debt, with indorse- 
 ment directing the collection of $624.11 and costs ; also the files In the 
 case, showing a declaration on a money bond in the penalty of $800, . 
 plea thereto, demurrer to the plea, and joinder. Also writ of error 
 brought by defendant in the same case, the return thereto, giving a 
 transcript of what purported to be a, formal judgment record, and the 
 proceedings in the Supreme Court thereon, where the judgment was 
 afSrmed. The Circuit Court rejected this evidence. Held erroneous. 
 Emory v. Whitwdl, 6 Mich., 474. 
 
 99. See the general subject of amendments considered in this case ; 
 the conclusions being substantially the following : 
 
 That where the iiles and records in the case clearly show that the 
 Court intended to render a certain judgment, to which the party was 
 entitled, but the entry actually made was defective, the Court may 
 amend the record to what it should have been at any time thereafter. 
 
 That notice of the application to amend the record is not necessary 
 in such case, because the effect of the record is" not changed by it, and 
 no one's rights are affected. 
 
 But that no actual amendment need be made. The whole record 
 should be read, when brought up collaterally, precisely as if the amend- 
 ments due as a matter of right had been actually made. 
 
 And it seems that, as under our practice, no formal judgment record 
 need be made up except when required by one of the parties, but the 
 judgment is to be evidenced by the files and journal entries, the tran- 
 script sent up in this case in return to the writ of error, showing a 
 formal judgment record, is evidence of the judgment of the Circuit 
 Court. Ibid. 
 
 See further on this subject, under the various titles of CoiniTS aud 
 
 PliACTIOB. 
 
 APPEAL PROM CHANCERY. 
 
 100. The ri gilt of appeal is a statutory right ; and where the 
 party has failed to comply with the provisions of the statute within the 
 time prescribed, the Court will not allow a re-entry of the decree in 
 order to enable him to appeal. Weed v. Lyoii, "Wal. Ch., 77. 
 14 
 
APPEAL FROM CHANCERY. § 111 
 
 S©1. Restrictions. Whether there be any, and if so what, 
 restrictions upon the right to appeal, where default was made in the 
 Court below, qimre. Stevens v. Tovmsend, 1 Doug., 77. 
 
 102. If there are, the Supreme Court will not dismiss an appeal, on 
 motion of the appellees, on the ground that the appellant, having made 
 default in the Court below, has no right of appeal, unless the decree 
 recites all those facts which, by the rules and practice of the Court of 
 Chancery, entitle a party to default his adversary. IMd. 
 
 103. The decree of the Court of Chancery recited that the " cause 
 having been heretofore brought on to be heard and decided, upon the 
 agreement and stipulation of the said Townsend and the complainants, 
 and the answer of said Townsend, and upon exhibits read by stipula- 
 tion and consent, and the said bill having been taken as confessed 
 against [the co-defendants of Townsend], and upon hearing of counsel 
 for the complainants, and no person appearing to argue the said cause 
 on the part of the defendants," &c. Held that it did not show such a 
 default of Townsend, and abandonment of his cause in the Court below, 
 as would deprive him of the right of appeal. Ibid. 
 
 104. Hearing. The statute (R. S. of 1838, p. 380, § 137) was not 
 mandatory, but merely autMrized the Chancellor to sit with the Justices 
 of the Supreme Court, and inform them of the reasons of his decree or 
 order, on the hearing of an appeal therefrom to the Supreme Court. 
 Hid. (For a similar provision — never acted upon — see Comp. L., 
 §■3603.) 
 
 105. What is a final decree ®r erder. An order in a 
 foreclosure suit confirming the report of the appraisal, set off and 
 conveyance of the mortgaged premises, under the appraisal law of 1842, 
 wa.= held to be a final order, from which an appeal would lie to the 
 Supreme Court. Bemdict v. Thompson, 2 Doug., 299. 
 
 106. The decree directing such appraisal might also have been ap- 
 pealed from ; it being & final decree within the statute. Ibid. 
 
 107. An order denying a writ of assistance to the purchaser in a 
 foreclosure suit jnay be appealed from. Balder v. Pierson, 5 llich., 456. 
 
 10§. An order striking a bill from the files is also a. final order from 
 which an appeal lies. Webster v. Ilitelicoel; 11 Mich., 56. 
 
 109. A decree granting a divorce from the bonds of matrimony may 
 be appealed from, notwithstanding by the same decree a reference is 
 ordered on the question of temporary alimony. Shaio v. Shaw, 9 Mich., 
 164. 
 
 110. An appeal will lie from an order setting aside a sale in a fore- 
 closure suit after confirmation of the report of sale ; it being final as to 
 the purchaser. Bullard t. Q-reen, 9 Mich., 222. 
 
 111. It will lie also from an order adjudging a party guilty of a con- 
 
 15 
 
§ 123 APPEAL PROM CHANCERY. 
 
 tempt in violating an injunction, and awarding a sum of money to the 
 opposite party to indemnify Mm for the violation. People v. Simonson, 
 9 Mich., 493. 
 
 118. An order refusing to set aside a decree for irregularity is a final 
 order, and may be appealed from. Micliigan Insurance Go. v. Whittemore, 
 13 Mich., 311. 
 
 113. Wliat is not a flual decree or order. An order 
 setting aside a final decree, tal^n pro eonfesso in a foreclosure suit, and 
 permitting a defendant to defend, unless the complainant should elect to 
 assign to him the decree for a sum named in the order, is not a decree, or 
 firuA order, which can be appealed from. Prentis ». Bice, 2 Doug., 396. 
 
 114. An order denying a motion for the dissolution of a preliminary 
 injunction, heard on answer to a part and demurrer to the residue of the 
 bill, before the time for filing replication had expired, is interlocutory 
 merely, and cannot be appealed from. Wing v. Warner, 3 Doug., 388. 
 
 115. An order denying a motion to stay a sale under a decree of 
 foreclosure, and vacating a temporary order staying the sale until the 
 motion could be heard and disposed of, cannot be appealed from. Bo- 
 rneyn v. Hale, 1 Mich., 93. 
 
 116. Nor can a decree be appealed from which directs a reference to 
 a master or other officer to do what the Court, but for its power to make 
 such reference, would itself have to do before it could decide the case. 
 Ca^weU V. Gomstock, 6 Mich., 391. 
 
 117. Nor a decree which consists in part of a reference to a commis- 
 sioner to talte an accoun); between the parties. Unas v. Sutherland, 9 
 Mich., 148. 
 
 11§. Nor a decretral order allowing a general demurrer to a bill in 
 (Ihanceiy, but not in terms dismissing the bill or awarding costs. 
 Blackwood v. Van Vleet, 10 Mich., 398. 
 
 119. Nor an order overruling a demurrer. Bennett v. NicltoU, 12 
 Mich., 23. 
 
 120. Nor an order opening for review a decree for permanent ali- 
 mony in a divorce case, and ordering a reference to a circuit court 
 commissioner to take, proofs, &c., and to report thereon. Perkins v. 
 Perkins, 10 Mich., 435. 
 
 121. A Avritten claim of appeal is not necessary to be filed. 
 Warner v. Whittaker, 5 Midi., 241. 
 
 122. Appeal bond. The officer who fixes the penalty of the 
 appeal bond, does not acquire exclusive jurisdiction to approve the 
 sureties ; but they may be approved by any officer empowered by law 
 to act in the premises. Emerso?i v. Atwater, 5 Mich., 34. 
 
 123. It is no objection that the bond is approved and filed before the 
 claim of appeal. Hid. 
 
 16 
 
APPEAL FROM CHANCERY. § 134 
 
 124. It is not necessary that the bond should be executed by all the 
 appellants. It is sufficient if it appear to be executed on behalf of all. 
 
 Warner n. Wfdttaker, 5 Mich., 241. 
 
 125. An indorsement upon the bond, signed by the proper officer, in 
 the following words: "I approve of this bond, both in form and sub- 
 stance ;" will be held an approval both of the sureties and of the penal 
 sum ; and is sufficient. Mayna/rd v. Hoakins, 8 Mich., 260. 
 
 126. Where a party against whom costs are awarded in Chancery, 
 appeals to the Supreme Court, the appeal bond covers those costs, as 
 well as the costs of the Supreme Court, in case the decree appealed 
 from is affirmed. Daily v. lAtehfidd, 11 Mich., 497. 
 
 127. The bond only obligates the appellant to the performance of 
 the decree of the Supreme Court in those particulars in which he was 
 individually bound in the decree appealed from. Accordingly, where, 
 after decree for the complainant in a foreclosure suit,, one of the defend- 
 ants, not personally liable on the„ decree,, appealed therefrom, and the 
 decree was affirmed by the Supreme Court, it was held that the appel- 
 lant was not liable for the amount of deficiency after sale had been 
 made on the decree. Eeplmrt ■». Farmers and Meelhanics' Bank, A Mich., 
 602. 
 
 12§. The Supreme Court has no power to require the appellant to 
 give a new or further appeal bond, in addition to the one approved by 
 the circuit court commissioner,, and which is alleged, to be insufficient. 
 J/owe «. OUn, 6 Mich., 338. 
 
 129. The bond should have at least two sureties; but if defective 
 in this or any other respect,, the Supreme Court, ,i£ motion to dismiss is 
 made for this cause, may allow a new bond to be filed. (Comp. Tj., 
 §4543.) Beebee «. Young, 13 Mich., 221., 
 
 130. liVlien appeal to be taken. Where the last of the 
 forty days in which an appeal is allbwed.tobe taken Is Sunday, the ap- 
 peal cannot be taken on tha following; Monday. Drake ». Andreim, 2 
 Mich., 203. 
 
 131. If taken within forty days from, the time the decree is drawn 
 up, and left with the register to be entered, it is in time, though more 
 than forty days from the time when the judge announced orally what 
 the decree would be. Seders v. BoUf&rd, ,9 Mich., 490. 
 
 132. Motions, to. disini§s must be made at the earliest opportu- 
 nity. Tforjifi?" «„ ff^i«i!ofor,,5 Mich.,,241. 
 
 133. On motion to dismiss fOr want of a sufficient bond, affidavits 
 will not be received to enlarge or restrict the officer's certificate of ap 
 proval. Mayna/rd v. Moskins, 8 Mich., 260. 
 
 134. The Court will not dismiss an appeal for a failure of the regis- 
 
 2 17 
 
§ 144 APPEAL FROM CHANCERY. 
 
 ter to make a full return ; but a further return will be ordered. May- 
 na/rd ■». Hoskins, 8 Mich., 81. 
 
 135. Nor will it dismiss for a failure of the register to cause return 
 to be made within the time provided by the statute, if it is actually filed 
 before the motion to dismiss is made. Oarratt v. Litohfidd, 10 Mich., 
 451. 
 
 136. Nor because the return has been made to the wrong clerk's 
 office ; the statute requiring return to be made to the nearest office 
 being directory merely. Beebee v. Toung, 13 Mich., 331. 
 
 ISy. Nor for a failure of the appellant to serve notice of the appeal 
 on co-defendants, as required by Supreme Court rule 14, if the failure 
 is sufficiently excused. Qarratt v. MtchfiUd, 10 Mich., 451. 
 
 138. The appeal wiU not be dismissed on the ground that the order 
 appealed from was a matter of discretion in the Court below. Michigan 
 Insurance Co. v. WhUtemore, 13 Mich., 311. 
 
 139. Amendment of record. The Supreme Court has no 
 power to allow the appellant to supply, by a sworn copy, a paper dis- 
 covered, after the ajjpeal, to have been lost from the files of the Court 
 below. But it seems that the Court below would have power, even after 
 the appeal, to supply the paper, in order to give eflfect to the appeal. 
 Sears v. Sclvwarz, 1 Doug., 504. On the subject of amending records 
 after the cause is removed to a Court of review, see G'Flynn v. Eolmes_, 
 7 Mich., 454; O'Flynn v. Eagle, 8 Mich., 136. 
 
 140. The record returned on appeals should include full copies 
 of all the proceedings in the case ; so that the transcript shall present 
 everything which appeared in the Court below. Wright v. Dudley, 8 
 Mich., 115. 
 
 141. Wliat to be reviewed. Where appeal is taken from 
 a final decree all previous orders connected with the decree, and affect- 
 ing the merits, are open to review. Benedict v. Thompson, 2 Doug., 299. 
 And see Morris v. Morris, 5 Mich., 171. 
 
 142. As where a demurrer was overruled, and the defendant then an- 
 swered and the case was heard on pleadings and proofs, and decree 
 entered for complainant, it was held that an appeal therefrom opened 
 for review the decision on the demurrer. Bennett v. Nichols, 13 Mich., 23. 
 
 143. But where the appeal is from a final order, (as an order confirm- 
 ing an appraisal and set off under a decree in a mortgage case,) the 
 Court is restricted to a review of so much of the proceedings as are 
 connected with the final order. Benedict v. Tlunnpson, 3 Doug., 399. 
 
 144. The Court is confined to an examination of the errors found in 
 the transcript, and cannot assume, as a part of the case, facts not ap- 
 pearing by the transcript, though assumed by the counsel on the 
 
 18 
 
APPEAL FROM CHANCERY. § 153 
 
 argument, and though, in virtue of a parol admission, they were treated 
 as part of the case in the Court helow. Bailey v. DeGraff, 3 Doug., 169. 
 
 145. On the hearing it was claimed that certain evidence returned 
 as a part of the record should he excluded, on the allegation that it was 
 not actually filed in the Court below, and was not considered by that 
 Court in its decision. The evidence consisted of the proof of docu- 
 ments set out in the hill, and appeared to have been regularly taken on 
 proper notice. There being no ground for supposing that the party 
 objecting had been taken by surprise, and the transcript on appeal 
 having been on file for two years, without motion to correct it, it was 
 held that the evidence should not be disregarded. Michigan Insurance 
 Co. V. Brown, 11 Mich., 265. 
 
 146. Error without injury. An appellant cannot ask a 
 reversal of the decree for an error in no way affecting his rights. 
 Martin i>. McBeynolds, 6 Mich., 70 ; Warner v. Whittake/r, 6 Mich., 133 ; 
 Griggs v. Detroit and MUwanikee BaiMay Co., 1(> Mich., 117 ; Michigan 
 Instirance Co. v. Whittemore, 13 Mich., 437. 
 
 -147. A decree made without notice of hearing to a defendant who 
 has appeared in the cause, may be reversed for that reason. Jenny v. 
 O'Mynn, 5 Mich., 315. 
 
 14§. But it will not be reversed for a mere irregularity not affecting 
 injuriously the interests of the appellants. The proper course for a 
 party conceiving himself aggrieved by such irregularity is to apply to 
 the Court of Chancery for relief upon showing that he has or wiU sus- 
 tain injury therefrom ; and if that application is denied, to appeal to 
 the Supreme Court thereafter. Kellogg v. Pwtna/m, 11 Mich., 344. 
 
 149. Defective pleadings. If the allegations in a bill do not 
 entitle complainant to any relief, the bill, on appeal, should be dismissed 
 for that cause, notwithstanding a plea to the bill, on which issue was 
 taken, is found not to be true. Surlbut -o. Britain, 3 Doug., 191. But 
 if the pleadings are good in substance, all matters of mere form are to 
 be disregarded on the appeal. Bye ». Mann, 10 Mich., 391. 
 
 150. Jurisdictional defects. A decree may be reversed on 
 appeal for jurisdictional defects, notwithstanding they are not pointed 
 out on the argument. Smith «. Smith, 13 Mich., 358. 
 
 151. Errors aflVecting infants. "Where errors were commit- 
 ted aflecting injuriously the rights of infants, the decree should be 
 reversed, even though no objection be taken for such errors. Ibid. 
 
 152. As where an order was made against infants based on their 
 admissions, and costs awarded against them improperly. Ibid. 
 
 153. Appeal where witnesses were examined in 
 open court. Where an appeal is taken in such a case, the proper 
 course for the party desiring the testimony to be certified to the Su- 
 
 19 
 
§ 162 APPEAL FROM JUSTICES' COURTS. 
 
 preme Court, under the statute, is to make a case setting it fortli, 
 present it to the Circuit Judge, and procure liis order, fixing the time 
 and place when and where it shall he settled, and for notice to the 
 opposite party that he may attend and propose amendments ; or instead 
 thereof, take other equivalent proceedings. WrigM o. DucOey, 8 
 Mich., 74. 
 
 154. Where no proceedings are taken for the settling of such a case, 
 but the party appellant, without notice to the opposite party, procures 
 and files with the appeal papers a certified copy of the Judge's minutes 
 of the evidence taken on the trial, such copy cannot he treated as a 
 case made under the statute, or considered in the Supreme Court on the 
 hearing. Hid. 
 
 155. Either of the parties has the right to procure such a case to 
 be settled ; and if the appeal is regularly taken, and neither party take 
 steps to have a case made and settled, the cause will stand for hearing 
 without the testimony, and it will then devolve upon the appellant to 
 show that the decree is not warranted by the pleadings ; the presump- 
 tion being that there was evidence below to authorize it. Ibid. 
 
 156. The statute allowing three inonths after trial for the making of 
 such a case, will be construed to allow three months from the time the 
 decree is made. ITM^ 
 
 APPEAL FROM JUSTICES' COURTS. 
 
 157. A Judgment or nonsuit, for failure to appear, could not 
 be appealed from under the statute of 1841, (S. L., p. 107, § 94) which 
 authorized an appeal from, any final judgment. Bowne v. Johnson, 1 
 Doug., 185. . 
 
 15S. A judgment for costs, of less than $4, against the plain- 
 tiff, might be appealed under the statute of 1845, {S. L., p. 98.) WHson 
 v. Dams, 1 Mich., 156. 
 
 159. A party ivho bas stayed execution on a judgment 
 against him, cannot afterwards appeal. People v. Judges of Macomb Cir- 
 cuit Court, 1 Mich., 134. 
 
 160. Garnishee cases being made appealable by the statute, the 
 Circuit Court has jurisdiction to hear and determine the appeal. New- 
 ell V. Blai/r, 7 Mich., 103. 
 
 161. After a transcript of the judgment has been legally 
 filed in the Circuit Court under the statute, it is not in the power of 
 that Court to allow an appeal to be taken, under § 3843 of Comp. Laws. 
 Damson v. EUiott, 9 Mich., 253. 
 
 162. The affidavit for appeal, being required by the statute 
 
 30 
 
APPEAL FROM JUSTICES' COURTS. § 170 
 
 on the ground of public policy, cannot be waived or dispensed with by 
 the appellee. Snwrt ». Mowe, 3 Mich., 590. 
 
 163. "Where a plaintiff appealed, under the statute of 1845, (8. L.,p. 
 98) from a judgment of costs against him, no affidavit was necessary. 
 Wilson ». Bams, 1 Mich., 156. 
 
 164. Where defendant appealed, under said statute, and the affidavit 
 was made by his attorney, and stated that the plaintifif recovered five 
 dollars more than was justly and honestly due him, as the deponent 
 believed from the facts and evidence in the cause, which were fuUy 
 communicated to him, it was held sufficient. AvMin v. Strong, 1 Mich., 
 359. 
 
 165. Where a cause has been tried in Justices' Court on an issue of 
 fact, and an appeal is taken on an affidavit which is general, and relates 
 only to the judgment on the merits, such appeal brings up only this 
 issue of fact for trial ; and the appellate court can take no note of errors 
 in the process, or erroneous decisions of the justice, in proceedings pre- 
 liminary to such issue. If the appellant desire the Circuit Court to 
 review the decisions of the justice, on his objections to process, plead- 
 ings or proceedings anterior to the trial, he must set forth such 
 objections specifically in his affidavit for appeal. CJia/ppee v. Thomas, 5 
 Mich., 53. 
 
 166. Recognizance. Under the statute of 1845, which pro- 
 vided that "if any party shall appeal," "such party, his agent or 
 attorney shall enter into a recognizance," it was held that the appeal 
 might be taken, and the recognizance entered into by the party for 
 whose use the suit was brought. WUson v. Bams, 1 Mich., 156. 
 
 167. Under said statute the recognizance could only be entered into 
 before the justice by whom the cause was tried. Austin u. Strong, 1 
 Mich., 259. 
 
 168. Objections to the jurisdiction over the person are not 
 waived by taking an appeal. SJiaw v. Moser, 3 Mich., 71. 
 
 169. But where one only of two defendants appealed from a judg- 
 ment rendered against them by default, and afterwards both pleaded to 
 the merits and went to trial in the appellate Court, it was held that the 
 objection that the appeal was taken by one only, if otherwise valid, was 
 thereby waived. Ibid. See also. Tower v. Lanib, 6 Mich., 363. 
 
 170. So where in an action for tort damages were claimed beyond 
 the jurisdiction of the justice, and the defendant went to trial upon the 
 merits, and after judgment against him, appealed to the Circuit Court, 
 where trial was also had on the merits, and judgment given against 
 him, it was held that he could not raise the jurisdictional question for 
 the first time in the Supreme Court. W^ v. Scott, 4 Mich., 347; Tow&r 
 V. Lamb, 6 Mich., 363. 
 
 31 
 
§ 181 APPEAL IN PROBATE CASES. 
 
 171. Tlie return to tlie appeal, in wMch the name of the 
 justice only appears in the caption, is sufficiently signed; and the Court 
 can as well take notice that the name there is written by the justice 
 himself, as if it appeared at the end of the return. Brnwrt v. Howe, 3 
 Mich., 590. 
 
 172. Facts coming to the knowledge of the justice after the trial, 
 cannot properly constitute a part of his return, and must be rejected by 
 the appellate Court. Savier v. OKi/pman, 1 Mich., 116. 
 
 173. STotice of trial, under the Revised Statutes of 1846, where 
 the party to be served was not a resident of the county, and appeared 
 in the Court below by agent or attorney, should be served on such 
 agent or attorney. And where there was no agent or attorney in the 
 case, notice must be sent to the party himself by mail, if his residence 
 could be ascertained. OJiamberlain v. O'Keefe, 3 Mich., 357. 
 
 174. Under the statutes in force in 1851, either party might notice 
 an appeal for trial, and proceed to judgment in the same manner as in 
 causes originally commenced in the Circuit Court. Hoyt v. Mapes, 3 
 Mich., 533. 
 
 175. Entrance fee. An appeal may be dismissed by the Cir- 
 cuit Court, on ex parte motion, for want of payment of the entrance fee ; 
 but the better practice is to make an order nisi in the first instance. 
 Glwgee V. 8oldan, 5 Mich., 343. 
 
 176. A surety for costs in the Court below is liable for the 
 costs in the appellate Court. Dunn v. SuUiffe, 1 Mich., 34. 
 
 177. Judgment against surety. The statute— Comp. L., 
 §3866-^authorizing the Court on rendering judgment against the appel- 
 lant, to render it against the surety also, is not unconstitutional. Chap- 
 pee V. Thomas, 5 Mich., 53. 
 
 APPEAL IN PROBATE CASES. 
 
 178. The appeal bond, where one appeals from commission- 
 ers, under § 3936 of Compiled Laws, cannot be given by a stranger. 
 Appeal of Dickinson, 3 Mich., 337. 
 
 179. Although the Judge of Probate, in allowing an appeal and 
 passing upon the sufficiency of the sureties, acts judicially, yet until 
 such bond is filed as the statute requires, no foundation is laid for the 
 exercise of judicial discretion, and his acts are void. Ibid. 
 
 180. The bond on appeal remains filed with the Judge of Probate, 
 but on an authenticated copy the Circuit Court may be moved to dis- 
 miss the appeal, and has authority to do so. Ihid. 
 
 181. Declaration in Circuit Court. Where, on appeal 
 from the decision of commissioners disallowing a claim against the estate 
 
 33 
 
AKBITRATION AND AWARD. § 188 
 
 of a deceased person, declaration is filed in the Circuit Court on sucli 
 claim, but containing, also, a count on an account stated with tlie ad- 
 ministrators as such, such count may be treated as surplusage, and 
 judgment against the claimant will not be reversed because the jurj' 
 failed to pass upon the issue made on such count. Fish v. Morse, 8 
 Mich., 34 
 
 182. Where commissioners have been appointed to examine and 
 adjust claims against the estate of a deceased person, the estate is not 
 bound by an account stated with the administrators. And therefore, in 
 a suit against the estate, a count on such an account stated is bad. 
 Ibid. 
 
 183. Judgment in the Circuit Court should not be rendered in 
 the common law form, but the Court should simply allow or disallow 
 the claiuL LaEoe v. Fredand, 8 Mich., 531. 
 
 APPRAISAL LAW. 
 
 184. The provision of the act of 1841, {8. L. 1841, p. 45, §§ 1, 2,) pro- 
 hibiting the sale of property on execution, unless it would bring two- 
 third? of its value, as appraised by three disinterested freeholders, so far 
 as it applied to the remedy to enforce pre-existing contracts, was uncon- 
 stitutional and void. WUlard ». Longstreet, 2 Doug., 173. 
 
 185. But where an appraisal and sale of real estate was made under 
 the provisions of this act, by virtue of an execution on a judgment upon 
 contract rendered befdre the act took effect, and the plaintiff in the 
 execution participated in the appraisal, and purchased the premises on 
 the sale, at a sum exceeding two-thirds their appraised value : Hdd, 
 that the plaintiff's rights not being affected by the appraisal, the sale 
 was valid, and conveyed a good title. Ibid. 
 
 1§®. The "Act to provide for the transfer of real estate on execution, 
 and for other purposes," approved February 17, 1842, {8. L. 1842, j). 
 135,) did not authorize an appraisal and set off of mortgaged premises 
 in satisfaction of the mortgage, without previous proceedings to fore- 
 close, either in equity or by advertisement. BiLck v. 81ierman, 2 Doug., 
 176. 
 
 ARBITRATION AND AWARD. 
 
 18'?. One partner cannot submit partnership matters to arbitra- 
 tion without a special authority for that purpose from his co-partners. 
 Buchozi i>. Qrandjean, 1 Mich., 367. 
 
 188. A submission being thus entered into without special authority, 
 
 23 
 
§ 195 ARBITRATION AND AWARD. 
 
 and an award made in pursuance of it in favor of tlie partnership, it 
 was held that the other party might defeat a suit on the award by 
 objecting such want of authority. Ibid. 
 
 1§9. A gubmissiou of the subject matter of a suit to arbitration is 
 a discontinuance of the suit. Bunn v. SuUiffe, 1 Mich., 24; Vand&rJwof 
 u. Dean, 1 Mich., 463. And it is a waiver of all irregularities in the suit 
 prior to the submission. 1 Mich., 463. 
 
 190. A submission under the statutes of 1838, was not required to be 
 under seal. Mayor, dc, of Detroit v. Jackson, 1 Doug., 106. 
 
 191. A submission bond with condition that judgment may be ren- 
 dered on the award in a court of record, is valid as a common law bond, 
 where it is evident from the conduct of the parties that they did not 
 intend to make it a statutory arbitration, and they did not pursue the 
 forms requisite for that purpose. Clement v. Comstock, 2 Mich., 359. 
 
 192. The a^vard of arbitrators, under the statute, is an oflacial 
 act, and is itself the evidence and authority, upon which the court may 
 render judgment. Mayor of Detroit v. Jackson, 1 Doug., 106. 
 
 193. A judgment, rendered upon an award, pursuant to the statute, 
 (jB. S. of 1838, 532,) will not be reversed on error, on the ground that 
 it does not appear that an agent, who executed the agreement for sub- 
 mission on behalf of one of the parties, had authority to do so, where 
 the award recites that such party was duly notified of the hearing before 
 the arbitrators, and appeared, and was heard, with his witnesses and 
 counsel, and where, being deemed in Court by the statute, {R. 8. 533, 
 §10,) he allowed the judgment to be entered on the award, without 
 objection on the ground of such agent's want of authority; but the 
 Court will infer from these facts a recognition and adoption, by the 
 party, of the act of his agent, in executing the submission, even where 
 such party is a corporation. Ibid. 
 
 194. A judgment rendered in favor of A. and B. against C, upon the 
 award of arbitrators, on filing the same pursuant to the statute, {R. 8. of 
 1838, 533, § 9,) will not -be reversed on error, on the ground that B.had 
 no claim against C. ; he having joined with A. in executing the submis- 
 sion to arbitration of all matters arising out of a contract between A. 
 and C, for the faithful performance of which contract by A., he was 
 recited, in the submission, to be bound to A. by a separate instrument, 
 and the award having been made in favor of both A. and B. Ibid. 
 
 19.5, Certainty in aivard. "Where the award was that C. and 
 H. should re-deliver to B. all the personal property which they had 
 taken by virtue of two chattel mortgages, (describing said mortgages,) 
 and also by a certain writ of replevin, (specifying it,); held, that as the 
 presumption was, that the mortgages and replevin writ showed what 
 34 
 
AKBITRATION AND AWARD. § 206 
 
 the property was, the award in that respect was sufficiently certain. 
 Olement v. Comstock, 3 Mich., 359. 
 
 196. An award directing the return of property, hut not expressly 
 determining the title to it, or directing releases to he executed, is suf- 
 ficiently certain. Ibid. 
 
 19T. An award in the alternative, (both alternatives being certain,) 
 is not void for uncertainty. Where one of the alternatives is certain, 
 and the other uncertain or impossible to be performed, the award has 
 been held good, for the party could perform its requirements by per- 
 forming that which was certain. IIM. 
 
 19§. Where a submission is general as to all controversies between 
 the parties, the Court will intend, until the contrary appears, that the 
 arbitrators decided all matters in difference. Md. 
 
 199. Delivery of aivard. An award is in time, although not 
 made and ready for delivery until a late hour in the evening of the day 
 limited for its completion. Ibid. 
 
 200. Arbitrators may retain the award in their hands until paid for 
 their services. IMd. 
 
 201. Excesi of authority. Where the arbitrators, without 
 the power being given in the submission, award as to costs, that does 
 not vitiate the entire award, but renders it void for the excess. Ibid. 
 
 202. Cost§. A clause in the submission bond, submitting all con- 
 troversies between the parties, and "all matte(rs relating thereto," 
 would seem to import authority in the arbitrators to award concerning 
 the costs of the arbitration. Ibid. 
 
 203. Arbitrators must all be present at the execution of 
 the award. Daniels v. BipUy, 10 Mich., 337. 
 
 204. Where two of three arbitrators signed an award when the 
 third was not present, and the third signed it afterwards when but one 
 of the other two was present, it was held not a valid award. Ibid. 
 
 205. Mistalce in a'ward. Where arbitrators actually pass- 
 their judgment upon the subject matter submitted to them, strictly in 
 accordance with the Intention of the parties, but the award as written 
 fails to express that judgment, the mistake will be held of a clerical 
 nature ; and a court of equity has the power to correct the same, and 
 decree a specific performance. Buys ii. MerTiwrdt, 3 Mich., 524. 
 
 206. It was submitted to arbitrators to determine the value of cer- 
 tain real estate of one of the parties, at which valuation the other party 
 was at his option to purchase the same. The arbitrators, by omitting 
 to take into consideration the value of a water power connected with 
 the property, appraised it at much less than its actual value. For this 
 mistake, the award was set aside. Ibid. 
 
 35 
 
§ 213 ASSIGNMENT. 
 
 ARREST. 
 
 207. A constable did not acquire authority to execute writs directed 
 to the sheriflF, in consequence of being in attendance upon a session of 
 the Circuit Court, in the discharge of his duties under B. S. 1838, p. 66, 
 § 51. People V. Moore, 3 Doug., 1. 
 
 208. A sheriff having no power to constitute a deputy for a particu- 
 lar act, except by warrant In writing, the arrest on a bench warrant of 
 a person indicted and under recognizance to appear, by one having only 
 verbal authority from the sheriff, is Illegal and does not discharge the 
 recognizance. Ibid. 
 
 209. For felony, may be without warrant. Brennan v. People, 10 
 Mich., 169. 
 
 ASSIGNMENT. 
 
 1. In Genebal. 
 
 210. As security — control of assignee. Where a contract 
 Is assigned for the sole purpose of enabling the assignees to collect and 
 apply certain moneys coming due to the assignors thereon, and then to 
 be re -assigned, the assignees are not authorized without the consent of 
 the assignors to assume the performance of the contract, or to change 
 its terms by agreement with the contracting party. Litchfield «. Oarratt, 
 10 Mich., 436. 
 
 211. Check not an assignment. Where one in extremis drew 
 his check upon a bank, with directions to the payee to defray the fune- 
 ral expenses of the drawer from the amount, and pay the balance to his 
 heirs, and the check was not accepted by the bank at the death of the 
 drawer, it was held that it did not operate as an assignment of the fund 
 so as to make the bank liable to the payee. Second NationaZ Bank of 
 Detroit v. Williams, 13 Mich., 383. 
 
 For further decisions, see Action ; Mortgages op Laitds ; Specific 
 Pekfobmance. 
 
 3. For the Benefit of Cbeditoes. 
 
 212. One partner cannot make a general assignment of the 
 partnership effects to a trustee for the benefit of the creditors of the 
 firm, without the knowledge or consent of his co-partner when he is on 
 the spot, and may be consulted. Kirhy v. Ingersoll, Har. Ch., 173. 
 AfiBrmed in 1 Doug., 477. 
 
 213. An assignment void in part Is altogether void. It 
 cannot be sustained in part because of one good trust in it. Kirby v 
 IngersoU, Har. Ch., 173. See also, Pierson v. Manning, 3 Mich., 445. 
 
 26 
 
ASSIGNMENT. § 231 
 
 214. Accordingly, where one partner, without the consent of the 
 other, who was on the spot and might have been consulted, made an 
 assignment of the partnership effects to one of the creditors, for the 
 benefit of the creditors generally, preferring the debt of the assignee, it 
 was held that the assignment was void m toto, and could not be sus- 
 tained to the extent of securing the debt of the assignee. Kirby 11. 
 IngersoU, Har. Ch., 172; 1 Doug., 477. 
 
 215. By a bank. The directors of a bank, with the assent of a 
 majority of the stockholders, made a general assignment of the corpo- 
 rate property for the benefit of creditors, and it was held that such an 
 assignment was valid at the common law. Town i). Bank of Ewer 
 Raisin, 2 Doug., 530; Bank Commissioners v. Bank of Brest, Har. Oh., 
 106. But it seems that without the consent of the stockholders it could 
 not be made. Har. Ch., 106. 
 
 216. IMust l»e of all tlie property. A voluntary assign- 
 ment for the benefit of creditors, purporting to be general, is void if it 
 does not fairly and in good faith assign all of the assignor's property 
 which is liable for the payment of his debts. Smith «. MitclieU, 12 Mich., 
 180. 
 
 217. iSelectiou of assignee. The utmost good faith is required 
 in the selection of the assignee ; and it must be made with reference to 
 the interest of the creditors, rather than that of the debtor. When the 
 assignment is assailed as fraudulent, evidence of a general reputation 
 that the assignee is insolvent is admissible, as well as of any deficiency 
 in age, health, business capacity, or standing. AngeQ, v. Bosenbury, 12 
 Mich., 341. 
 
 218. I*reference8 of one creditor or class of creditors over others, 
 may be made by a debtor in assigning. How v. Oaiwp, Wal. Ch., 427 ; 
 Town V. Bank of Bimr Raisin, 2 Doug., 530. 
 
 219. A bona fide pnrcliaser is not afiected by a secret, frau- 
 dulent intent on the part of the assignor. MolUster v. Loud, 3 Mich., 
 309. And an assignee for the benefit of creditors is such a bona fide 
 purchaser if the assignment contain covenants on his part, and stipula- 
 tions by him beneficial to the creditors. IMd. But see Pierson v. Man- 
 ning, 2 Mich., 445; Flanigan v. Lampmam, 12 Mich., 58. 
 
 220. One who has bought the property of the assignee, and verbally 
 agreed to give his notes therefor on time, but h?.s not yet made any 
 payment or given any notes, when the property is attached, is not en- 
 titled as against the attaching creditor to be considered a bona fide 
 purchaser. Dixon v. HUl, 5 Mich., 404. 
 
 221. Acceptance of the assignment by the assignee dedicates the 
 assigned property to the purposes of the trust, notwithstanding it has 
 been made without the knowledge of the creditors : it cannot afterwards 
 
 27 
 
231 ASSIGNMENT, 
 
 be revoked witliout the express assent of the creditors. 
 Deqwindre, Har. Ch., 347. 
 
 222. But if an attachment is levied upon the property assigned 
 before the acceptance of the trust, the property will be subject to the 
 attachment. Pierson v. Manniny, 3 Mich., 445. 
 
 22S. Delaying creditors. That it hinders, delays or obstructs 
 creditors does not render an assignment void for fraud. To render it 
 so, it must have been made with that intent. HoUister v. Loud, 3 Mich., 
 309. 
 
 224. But if it be so drawn that it must, in its execution, tend to hin- 
 der or delay creditors unprovided for by it, in the collection of their 
 demands, the legal presumption is that it was drawn with that intent. 
 Pierson v. Manning, 3 Mich., 445. 
 
 225. Actnal fraud in the making of an assignment is to be 
 established by proof, like any other fact. And it must be clearly and 
 distinctly made out, and cannot be inferred from circumstances of an 
 equivocal tendency. SbUisfer v. Loud, 3 Mich., 309 ; Bdtdwin v. Buck- 
 Und, 11 Mich., 389. 
 
 226. But the most liberal rules should prevail in the admission of 
 evidence which may tend to prove fraud; as that the assignor still 
 claims and seeks to derive a benefit from the property assigned, to the 
 prejudice of creditors. Vlanigwn «. La/mpman, 13 Mich., 58; Smith d. 
 MitcMl, 13 Mich., 180. 
 
 227. Where it appeared that the assignee, a short time before the 
 assignment, as an inducement to a third person to loan the assignor 
 money, stated that the latter was perfectly good and not owing much, 
 it was held that the setting up by him of a large preferred claim under 
 the assignment, as having been owing to him before such statements 
 were made, was strong evidence of fraud in making the assignment. 
 AngeU i>. Bosenbury, 13 Mich., 341. 
 
 228. Facts tliat do not establisb fraud. The assignor 
 suffering a bill in equity which charges fraud to be taken as confessed, 
 does not establish the fraud as against the assignee, who denies all 
 knowledge of the assignor's fraudulent intent. SoUister v. Loud, 3 
 Mich., 309. 
 
 229. It is no objection to the validity of an assignment that it was 
 made in anticipation, by both parties, of the immediate issuing of 
 attachments against the property of the assignor. Ibid. 
 
 230. Nor that the property exempt from sale on execution was not 
 assigned. Ibid. Even though the exempt property was not specified. 
 Smith V. Mitchell, 13 Mich., 180. 
 
 231. Nor that the assignors were allowed by the assignees to occupy 
 premises conveyed by the assignment during a period when such prop- 
 
 38 
 
ASSIGNMENT. § 341 
 
 erty was not usually rented, tlie assignees in the meantime taking the 
 crops, and expressing their intention to charge the assignors a fair rent. 
 HolMster v. Loud, 2 Mich., 309. See Booth i). McNavr, 14 Mich.^ 
 
 232. If the assignor believes himself solvent, and being pressed by 
 creditors, avows his intention to assign for the purpose of getting time, 
 these are strong evidences of fraud, but subject to explanation. Bald- 
 vyin V. BueUand, 11 Mich., 389 ; Angdl v. BosenJmry, 12 Mich., 241. See 
 Booth ». McNair, 14 Mich. 
 
 233. That the assignment was made by an embarrassed debtor to 
 prevent a sacrifice of his property, does not necessarily render it void. 
 Angdl v. Mosenbury, 12 Mich., 241. 
 
 234. That the assignee is a relative of the assignor, and resides in 
 another town, and that he employs the assignor as his agent in manag- 
 ing the business under the assignment, are not conclusive evidence of 
 fraud in making the assignment. Baldwin v. Bucldand, 11 Mich., 389 
 See as to selecting assignee, Angdl «. Boaenbury, 12 Mich., 241. 
 
 235. The subsequent acts and declarations of the parties may be 
 resorted to for the purpose of showing its fraudulent character. Ibid; 
 Flanigan v. Lampman, 12 Mich., 58.; Smith v. MitcMl, 12 Mich., 180. 
 But the subsequent fraudulent acts of the assignor, unknown to the 
 assignee, cannot change the character of the assignee's title, or make 
 that fraudulent which was originally honest. Baldwin v. Bucldand, 11 
 Mich., 389. 
 
 236. The acts and declarations of the assignor, made after the 
 assignment was signed and delivered, but before the schedules were 
 made out and attached, and while he was engaged in preparing them, 
 are competent evidence to show fraud. Wyckoff v. Ga/rr, 8 Mich., 44. 
 
 237. Rules of construction. Where an honest intent can as 
 fairly.be inferred from the terms of the assignment as a fraudulent one, 
 the Courts are not at liberty to Infer the latter. Nye v. Van Husan, 6 
 Mich., 329. 
 
 23§. But if it contains illegal provisions it is absolutely void; and 
 the statute which, makes fraud a question of fact has no application to 
 the case. Pierson v. Manning, 2 Mich., 445. 
 
 239. "WTien void on its face. A clause authorizing the as- 
 signee to sell the assigned property on credit, renders the assignment 
 void. Sutton v. Ranford, 11 Mich., 513. 
 
 240. So does a clause which provides that the real estate shall not 
 be sold by the assignees until all the personal property and assets shall 
 be exhausted, unless with the consent of the assignor. Pierson ». Man- 
 ning, 2 Mich., 445. 
 
 241. An assignment to be valid' must definitely fix the rights of the 
 parties beneficially interested, leaving nothing subject to the future 
 
 39 
 
349 ASSIGNMENT. 
 
 direction or control of the assignor. If it provides for a part only of the 
 creditors, and contains no provision for the application of the surplus, 
 if any, the assignment is void as to the creditors not provided for, since 
 at law such surplus would revert to the assignor ; and the assignment 
 consequently contains a resulting trust for his benefit before all the 
 creditors are paid. Ibid. 
 
 ^4t2. When not void on its face. It is no objection to an 
 assignment that no time is limited for closing the trust. SoUister v. 
 Loud, 3 Mich., 309. 
 
 243. Nor does a clause that assignees shall proceed to sell the 
 property and to pay the debts within such time as to them shall 
 seem meet, render it void. The trust in such a case is under the control 
 of chancery. Ibid. But see on this point, Sutton v. Hanford, 11 Mich., 
 518. 
 
 244. Nor does a clause reserving to the assignors power to perfect 
 the schedules attached to the assignment impair or restrict the instru- 
 ment itself. Nye «. Yam, Husan, 6 Mich., 339. 
 
 245. Nor is a clause objectionable which authorizes the assignees to 
 sell and dispose of the assigned property, " either at public or private 
 sale, as they in their judgment may deem best, and upon such terms 
 and conditions as they may deem most advisable, and for the best inter- 
 ests of the creditors, converting the same into money." It wiU not be 
 considered as conferring a power to sell upon credit. Ibid. See a sim- 
 ilar decision in Booth v. McNair, 14 Mich. 
 
 24®. Nor does the preference of individual debts in a copartnership 
 assignment, of itself, independent of an actual Intent to defraud, render 
 the assignment void. Nye v. Van Husan, 6 Mich., 839 ; SoUister v. Loud, 
 3 Mich., 445. 
 
 247. A clause in the assignment, by which the assignors nominate 
 and appoint the assignees, "their executors, administrators, or assigns, 
 their or each of their true and lawful attorneys, irrevocable, with full 
 power and authority to do and perform all acts, matters or things which 
 can or may be necessary in the premises, as fully and completely as the 
 said assignor might or could do were these presents not executed ; and 
 attorney one or more under them to make, nominate and appoint, as 
 they may deem necessary, with full power of substitution and revoca- 
 tion," &c., does not confer upon the assignees the power to delegate 
 their trust ; and is proper and unobjectionable. Nye v. Van Susan, 6 
 Mich., 839. 
 
 248. A schedule detailing at large the property conveyed, is not 
 necessary to the validity of an assignment. SoUister v. Loud, 2 Mich., 
 809 ; Nye «. Van Susan, 6 Mich., 839. 
 
 249. The necessity or effect of a schedule, if one is referred to in an- 
 
 80 
 
ATTACHMENT. § 256 
 
 assignment, is to be determined by the intent of the parties as gathered 
 from the whole instrument, and which, when ascertained, is to govern 
 in the construction of assignments as in the case of other written in- 
 struments. Nye V. Van Susan, 6 Mich., 339. 
 
 250. An assignment which clearly manifests an intention on the 
 part of the assignors to transfer all their property to the assignees, and 
 that it shall have immediate operation, will have that effect, though to 
 the general terms describing the property are added the words " as the 
 same is more particularly described in a schedule proposed to be here- 
 after annexed," and which schedule is not annexed. Ibid.. 
 
 251. Compelling execution of tlie trust. Where by an 
 assignment which was executed by the assignee, a time was limited for 
 closing up the trust, and the assignee allowed the time nearly to expire 
 before taking any proceedings for that purpose, it was held that credi- 
 tors need not wait for the expiration of the time before filing a bill to 
 enforce the execution of the trust. Suydam v. Bequindre, Har. Ch., 347. 
 
 252. The fee in 9and§ of the debtor which are covered by the 
 assignment will be conveyed by it without the use of words of inherit- 
 ance. Angdl v. Bosenbury, 12 Mich., 341. 
 
 ATTACHMENT. 
 
 253. The demand must be due upon which an attachment 
 issues, at the time the writ is sued out. The plaintiff" cannot declare 
 for a cause of action which accrued afterwards. OaUmcay v. Holmes, 1 
 Doug., 380 ; Hale v. GJwmMer, 3 Mich., 531. See also, Hinchman -o. 
 Town, 10 Mich., 508. 
 
 234. The aMdavit required by the statute is essential to confer 
 upon the Court jurisdiction of the proceeding. Oreenvavlt ii. Farnura 
 and Mechanics^ Bank, 3 Boug., 498. 
 
 255. Where the affidavit was sworn to before a person not author- 
 ized to administer oaths, it was held that the whole proceedings were 
 void for want of jurisdiction, and that a purchase of lands under them 
 by one who was a party to the proceeding could not be sustained. 
 Ibid. 
 
 256. And where the affidavit was sworn to on a day previous to the 
 issuing of the writ, the proceeding was held to be void ; the statute 
 requiring the affidavit to show that the facts sworn to existed at the 
 time of making application for the writ. Drew v. Dequindre, 3 Doug., 
 93 ; Wilson v. Arnold, 5 Mich., 98 ; Fessmden v. Hill, 6 Mich., 243. And 
 it makes no difference in this respect that the party or his agent making 
 the affidavit resided at a distance from the office of the clerk issuing the 
 
 31 
 
'§ 365 ATTACHMENT. 
 
 writ, and that the afladavit was transmitted to the clerk as soon as prac- 
 ticable by the usual course of mail. WUson v. Arnold, 5 Mich., 98. 
 
 257. So where the writ was issued ten days before the affidavit was 
 made, the proceedings were held void. BucUey v. Loviry, 3 Mich., 418. 
 
 258. The affidavit must state positively, and not on information and 
 belief only, that the defendant is indebted to the plaintiff, and the 
 amount of such indebtedness as near as may be, over and above all legal 
 set offs ; and also that the debt is on contract express or implied, or on 
 judgment. Comp. L., § 4743. If defective in these particulars, the 
 Court does not get jurisdiction. WUson v. Arnold, 5 Mich., 98. And 
 see HaXe v. OTumdler, 3 Mich., 531. 
 
 259. The affidavit is sufficient which states the indebtedness to be 
 uijon express contract, without stating more particularly the nature of 
 the contract. Dreio v. Dequindre, 3 Doug., 93. 
 
 260. The remedy by attachment is not limited to the case of liqui- 
 dated damages. A demand arising ex contractu, the amount of which is 
 capable of ascertainment by some standard referable to the contract 
 itself, sufficiently certain to enable the plaintifif by his affidavit to aver 
 it, in the words of the statute, " as near as may be," or a jury to find it, 
 may be the foundation of this proceeding. Rodofson v. Hatch, 3 Mich.) 
 277. 
 
 261. An affidavit stating that the two defendants " are not residents 
 of the State of Michigan, and have not resided therein for three months 
 immediately preceding the time of making this affidavit, and that [they] 
 reside in the State of New York," sufficiently shows that neither of the 
 defendants has resided in Michigan within three months. Dorr v. 
 Clark, n Mich., 310. 
 
 262. The bond required to be executed by a non-resident plain- 
 tiff, his agent or attorney, by S. L. 1843, p. 118, § 3, might, . when 
 executed by such agent or attorney, be, in form, his personal obligation, 
 and be executed by him in his own name, describing himself as such 
 agent, and not in the name, or on behalf of, his principal. Walhridge 
 V. Spalding, 1 Doug., 451. 
 
 263. Such bond is not vitiated by the omisaon, in the body of it, of 
 the christian name of the principal obligor, he having executed the 
 same by his full name. Ibid. 
 
 261. Where the bond is not in the name of the plaintiff in the 
 attachment, but is the personal obligation of his agent, no power under 
 seal need be shown, authorizing its execution by the agent. lUd. 
 
 265. The proceeding is a speeial one, in which the Court 
 exercises an extraordinarj- jurisdiction under a special statute prescrib-- 
 ing its course, and not under its general powers. It can therefore act 
 only according to the forms of procedure which the statute prescribes 
 32 
 
ATTACHMENT. § 372 
 
 JBucMey v. Loic/ry, 3 Mich., 418 ; 0^-eemauU v. Farmers and Meclumic.t' 
 Bank, 3 Doug., 498 ; Bodofson v. Hatch, 3 Mich., 277. 
 
 266. Ainendincnts of the proceedings might be had under the 
 general statute of amendments in R. S. 1838. Drew v. Dequindre, 2 
 Doug., 93. 
 
 267. Accordingly where the journal entries of the calling and de- 
 fault of the defendant failed to show the special character in which the 
 plaintiflf sued, it was held that, when motion was made by the defend- 
 ant to set aside the proceedings for this cause, the omission might be 
 supplied by amendment if in fact the defendant was properly called. 
 rhid. 
 
 26S. But the making of a new affidavit, when none was made at 
 the issuing of the writ, it is not an amendment which the Court can 
 allow. And though the statute of 1839 (S. L., p. 338) declared that no 
 writ should be quashed "on account of any defect in the affidavit on 
 which the same issued, provided the plaintiff, his agent or attorney, 
 shall, whenever objection shall be made, ffle such affidavit as shall be 
 required by law," it was held that where the original affidavit was void, 
 because sworn to before a person not authorized to administer oaths, 
 this act did not authorize the filing of a new affidavit after judgment 
 and sale of the attached lands. OreenvauU v. Farmers and Mechanics' 
 Bank, 2 Doug., 498. 
 
 269. And even if such new affidavit could be allowed, it could not 
 make valid the title of the purchaser ot the land under the attachment 
 proceeding against one to whom they had been mortgaged by the 
 defendant while the pi'oceeding was pending. Ihid. 
 
 270. The sheriffs return of sale may be amended by leave of the 
 Court. People v. Judges of Calhoun Circuit Court, 1 Doug., 417. The 
 Supreme Court cannot grant leave to make the amendment when ap- 
 plication is made for a mandamus to compel the Circuit Court to set 
 aside the sale for irregularity ; but if, by opposing affidavits, facts are 
 shown which would authorize the amendment by the Circuit Court, the 
 mandamus will be refused. Ibid. 
 
 271. Notice of suit. Where the notice of pendency of suit, in 
 addition to what was required by statute, (R. S. 1838, p. 506,) erroneous- 
 ly stated that the writ was returnable in November next, instead of 
 November instant, it was held that the mistake did not vitiate the pro- 
 ceedings. Drew v. Dequindre, 3 Doug., 93. 
 
 272. Appearance of defendant. Where property is seized, 
 and the writ returned not personally served, the publication of notice 
 as required by the statute is intended as a substitute for personal ser- 
 vice. The defendant has the same time in which to serve notice of 
 retainer, and to plead, after the filing of affidavit of publication, as he 
 
i5 280 ATTACHMENT. 
 
 would have had after a return of the writ personally served. Tlwmp- 
 son V. Thomas, 11 Mich., 374. 
 
 273. In such case the defendant may appear and plead as a matter 
 of right ; and the Court cannot impose terms on his doing so, in cases 
 where terms could not have been imposed if the writ had been person- 
 ally served. Ibid. 
 
 274. Irregularities. The defendant can only move the Court 
 to set aside the proceedings where some defect or irregularity is appa- 
 rent in the writ or affidavit. If he claims that the case is not one 
 authorizing an attachment, he must take proceedings before a circuit 
 court commissioner for its dissolution. Modofson .v Hatch, 3 Mich., 377. 
 
 275. A motion to set aside the proceedings for irregularity, made 
 after defendant has caused his appearance to be entered, is unseason- 
 able. Ihid. And where the defendant goes to trial on the merits, he 
 waives all prior irregularities. GraTie ». Hardy, 1 Mich., 56. 
 
 276. A judgment in attachment suit will not be set aside for irregu- 
 larity, on the motion of a person to whom the property attached had 
 been conveyed by the defendant, after service of the attachment, but 
 who is a stranger to the record. People v. Judges of Callioun Circuit 
 Goti/rt, 1 Doug., 417. 
 
 277. Other creditors filiniar claims. The discontinuance 
 of a suit in attachment by the original plaintiff, did not impair the right 
 of a creditor who, under R. S. of 1838, had previously filed his declara- 
 tion in the cause, to proceed to judgment, nor affect his lien upon the 
 property attached. Ibid. 
 
 278. "Where one creditor only obtained judgment in a suit com- 
 menced by writ of attachment, it was not necessary that the order of 
 sale of the property attached, authorized by the statutes of 1838, p. 511, 
 § 17, should require the money arising from the sale to be paid into 
 Court ; but if it required the same to be paid to the plaintiff, this would 
 not vitiate either the order or the proceedings under it. Ibid. [By the 
 present statutes no provision is made for other creditors filing claims 
 undef the attachment.] 
 
 279. Kecovery not limited to amount sworn to. The 
 plaintiff is not limited in his recovery by the amount sworn to be due 
 in the affidavit on which the attachment was issued, if, by the proof, a 
 greater amount is shown to be due. Pew v. Toare, 13 Mich., 16. 
 
 280. Setting aside a regular Judgment. Where the de- 
 fendant is a non-resident, and had no notice of the proceeding in season 
 to make his defense, and has been guilty of no laches, the Circuit Court 
 may, in the exercise of a sound discretion, set aside the judgment and 
 permit him to plead, even though a term has elapsed. Hurlburt v. Beed, 
 5 Mich., 30. 
 
 34 
 
ATTACHMENT. § 286 
 
 281. And where the defendant on learning of the proceedings had 
 engaged an attorney to defend, but the attorney neglected to do so, and 
 the defendant himself was guilty of no laches ; on aflSdavit showing 
 these facts, and merits, it was held that the judgment and subsequent 
 proceedings thereon should be set aside, and the party let in to defend. 
 Loree v. Beeves, 3 Mich., 133. 
 
 282. Subsequent attacbiiig creditors cannot contest the 
 attachment proceedings in the name of the debtor ; but they may, by 
 bill in chancery, contest the lien on the ground of fraud. Hale v. Chan- 
 dler, 3 Mich., 531. 
 
 283. "Where an attachment creditor took judgment for two demands, 
 one of which was not due when the writ was issued, it was held that 
 the judgment was a fraud upon a subsequent attaching creditor, of 
 whose claim plaintiff was aware, and that the lien of the judgment, so 
 far as it was founded on the demand not due, should be postponed to 
 the lien of the subsequent attaching creditor. IMd. 
 
 284. A. sued out of the Circuit Court an attachment, which was 
 levied upon the property of his debtor. At the time of suing it out only 
 eleven dollars of his demand was due, but he subsequently recovered 
 judgment for the whole amount on the debtor's admission. B. also 
 sued out an attachment against the debtor, which was levied on the 
 same property after that of A., but he recovered judgment first, and 
 caused execution to be levied on the property. B. then filed a bill in 
 chancery to have his lien decreed to have priority over that of A. It 
 was held : 
 
 That complainant by his attachment acquired a hen on the property, 
 subject only to any lien which A. could lawfully hold under the statute, 
 and that this lien of complainant could not be affected by a subsequent 
 recovery of a judgment to which he was not a party. 
 
 That he had a right to show, notwithstanding A.'s judgment, that tW 
 demand for which it was rendered was not due when the attachment 
 was levied. 
 
 That less than a hundred dollars being due A. when his attachment 
 was levied, the Circuit Court had no jurisdiction, and the whole amount 
 of A.'s judgment was postponed to B.'s lien. HiTichman v. Town, 10 
 Mich., 508. 
 
 285. B. included in his judgment a demand which he believed to be 
 due, but which was not so. It was held that he did not, by so including 
 it, debar himself from the right to have his priority protected in equity 
 as to the amount included which actually was due. Ihid. 
 
 286. Held further, that the question of priority between A.'s judg- 
 ment and that portion of B.'s which was not due when his attachment 
 
 35 
 
395 ATTACHMENT. 
 
 was leYied, must be determined by the levy of execution ; and B.'s being 
 first levied, gave him the first lien. Ibid. 
 
 2§7. TUe order for sale of the property attached, under the 
 Revised Statutes of 1838, must have been directed to the sheriff in office 
 and not to his predecessor who served the writ. Crane i>. Ha/rdy, 1 
 Mich., 56. 
 
 38S. Attactament of lands. To an attachment under B. S. 
 1838, the sheriff returned that he had seized certain lands, describing 
 them, in which the defendant had an interest as one of the heirs of A., 
 but did not state the extent of the interest ; and it appeared that the 
 lands were appraised without reference to it. Held sufficient. Drew v. 
 Dequindre, 2 Doug., 93. 
 
 2§9. Trust estates in lands are not liable to execution or attachment. 
 Traalc v. Oreen, 9 Mich., 358; Maynard v. SoskinSyQ Mich., 485; Gor- 
 lum, V. Wing, 10 Mich., 486. And this is so notwithstanding the trust is 
 a resulting one in favor of creditors under the statute — Comp. L., 
 §§ 3637, 2638 — the land having been bought by the debtor in the name 
 of another. 9 Mich., 358 and 485. 
 
 290. The interest of a mortgagee in lands is not subject to attach- 
 ment. CokimMa Bank ®. Jacobs, 10 Mich., 849. 
 
 291. Where lands are conveyed by deed absolute on its face, for the 
 purpose of securing a debt, and a written defeasance Is given back by 
 the grantee, and the deed is recorded but the defeasance is not, such 
 defeasance is not made void by the statute — Comp. L., § 2751 — except 
 as to purchasers for a valuable consideration without actual notice of its 
 existence. An attaching creditor is not such a purchaser, until the 
 property attached has been sold in pursuance of law and purchased in 
 by him. Ibid. 
 
 292. The provision in the attachment law — Comp. L., § 4751 — that 
 " Real estate shall be bound, and the attachment shall be a lien thereon, 
 from the time when it was attached, if a certified copy of the attachment, 
 with a description of such real estate, shall be deposited in the office of 
 the register of deeds'' "within three days after such real estate was 
 attached," only gives the creditor a lien on the debtor's attachable inter- 
 est in the lands, and in no way interferes with the previously acquired 
 rights of third persons. Ibid. 
 
 293. The Mayor's Court of Detroit had no jurisdiction of 
 attachments, under R. 8. of 1838. Wdles v. City of Detroit, 2 Doug., 77. 
 
 294. Dissolution of attachments. A circuit court commis- 
 sioner has power to dissolve an attachment which was levied only on 
 lands. Edgwrton v. Hinohman, 7 Mich., 353. 
 
 295. The only mode by which a defendant in attachment can contest 
 the truth of the facts stated in the affidavit upon which the attachment 
 
 3^) 
 
ATTACHMENT. § 305 
 
 was issued, is byjan application under the statute — Comp. L., p. 1375 — 
 for a dissolution of the attachment. He cannot, by plea in abatement, 
 put the facts stated in the affidavit in issue. Bower v. Town, 13 Mich., 
 330. 
 
 296, Where the defendant has procured a release of the property 
 attached, by executing a bond to the sheriff under the statute, he cannot 
 afterwards apply for a dissolution of the attachment. Paddock o. Mat- 
 thews, 3 Mich., 18. 
 
 297. But appearing and pleading in the case does not preclude him 
 from making such application. Hyde v. Ndson, 11 Mich., 353. 
 
 29S. Where the debtor has assigned the property attached, he can- 
 not take proceedings for the dissolution of the attachment, as he has no 
 claim to have the property restored to him. Chandler v. Nash, 5 Mich., 
 409. 
 
 299. The application for the dissolution of attachment must 
 state the reasons therefor. Osborne v. Bobbins, 10 Mich., 377. 
 
 300. It should show that the defendant's property was attached, and 
 describe the property ; the first because the jurisdiction of the officer is 
 dependent upon it ; tlie second because no order respecting the property 
 can be made unless the property be known ; and because without these 
 there would not be sufficient certainty as to the defendant's property 
 and right. Ibid. 
 
 301. A statement in an application in such a case, that "on said 
 attachment writ some of the goods and chattels of this applicant have 
 been seized," is insufficient. Ibid. 
 
 302. The application must be verified by oath. Ibid. 
 
 303. An application which does not describe the property, and only 
 states that, by virtue of the writ, " property to the value of more than 
 |3,000 was attached, and is now in possession of the sheriff," does not 
 confer jurisdiction upon the circuit court commissioner, and he should 
 dismiss it. Ndson v. Hyde,, 10 Mich., 531. 
 
 304. Evidence on. An attachment having been issued on an 
 affidavit that defendant was about to remove his property from the State 
 with intent to defraud his creditors, defendant took proceedings before 
 a circuit court commissioner for its dissolution. On the hearing, de- 
 fendant testified that when the writ was served he did not know that 
 he was owing any one. This evidence was given with a disclaimer of 
 any intent to raise the question of an indebtedness to the plaintiff in this 
 proceeding. It was held that the evidence was proper, as bearing on 
 the question of fraudulent intent. Hyde o. Ndson, 11 Mich., 353. 
 
 305. On motion for the dissolution of an attachment, evidence that 
 the defendant a short time previous made an arrangement with a person 
 to take his property under a pretended sale, in order to cover the same 
 
 37 
 
§ 313 ATTORNEYS AND COUNSELORS. 
 
 from defendant's creditors, and that the person took possession of it 
 under this arrangement, is material and should be admitted. Pa/rker v. 
 Luce, 14 Mich. 
 
 306. Suit on bond. It is no defense to a suit on an attachment 
 bond, on which property has been delivered by the sheriff to the obli- 
 gors, that the property did not belong to the defendant in the attach- 
 ment, or that it was incumbered. Parties bonding property under the 
 statute, must take it on the statutory conditions. Dorr v. Clark, 7 
 Mich., 310. 
 
 307. An assignment of the bond by the sheriff to the plaintiff, is a 
 thing which the plaintiff may require as a matter of right, and is valid 
 if signed by the sheriff, though not in his name of ofBce. Ibid. 
 
 ATTOKNEYS AND COUNSELORS. 
 
 30§. ^liability for officer's fees. The attorney of record 
 cannot be made personally liable to the clerk of the Court for his fees, 
 for services rendered on behalf of the client in the progress of the cause, 
 unless upon proof of his express promise to pay them, or of some prac- 
 tice or course of dealing between him and the clerk, from which such 
 promise can be implied. Preston «. Preston, 1 Doug., 392. 
 
 309. The Court may remove or suspend an attorney for 
 other causes than those mentioned in the statute, which is not to be 
 construed as restrictive of the general powers of the Court over its 
 officers. Matter of MiUs, 1 Mich., 393. 
 
 310. A charge made against an attorney for the purpose of removing 
 him, that he is of notoriously bad character, not to be believed under 
 oath, and unworthy to practice as an attorney, is too general. Specific 
 acts should be charged, so as to give the respondent an opportunity of 
 answering them. 
 
 311. But a charge that the reputation of an attorney for truth and 
 veracity is so notoriously bad that he is not to be believed under oath, 
 contains good cause for removal and is not too general. Ibid. 
 
 312. Compensation. A county was not liable under the Re- 
 vised Statutes of 1846 to an attorney who, at the request of the Court, 
 defended one charged with crime who was poor and unable to employ 
 counsel. Bacon v. Gounty of Wayne, 1 Mich., 461. Provision was made 
 for compensation afterwards. See Comp. L., p. 1493. 
 
 313. An agreement made between attorney and client, that the 
 former should prosecute an ejectment suit for an interest which the 
 latter claimed in the property — the client to advance the expenses of 
 the suit, and the attorney, in case of failure, to have nothing for his 
 
 38 
 
ATTORNEYS AND COUNSELORS. § 331 
 
 services, but, on recovery, a part of the property or its value in money 
 — is void for champerty. Backus v. Byron, 4 Midi., 535. 
 
 314. IKcmecly of client against. A client whose attorney 
 has neglected his case and sufl'ered judgment to pass against him, but 
 who has himself been guilty of no laches, is not confined to his remedy 
 against the attorney, but the Court in the exercise of its discretion may 
 set aside the judgment and allow him to defend. Loree v. Beeves, 3 
 Mich., 133. 
 
 315. Dealings of attorney and client. It is the policy of 
 the law to scrutinize gifts, conveyances and securities by a client to his 
 attorney pending the relation, especially when connected with the 
 subject matter of litigation ; and it will not permit the relation and the 
 confidence it implies to be turned to the profit of the attorney at the 
 expense of the client. Oray v. Emmons, 7 Mich., 538. 
 
 316. "Where the attorneys of complainants who were assignees of a 
 portion of a chattel mortgage on a stock of goods, with priority of pay- 
 ment, took possession of the mortgaged property, and without authority 
 from complainants, sold more than was sufficient to satisfy their portion 
 of the mortgage, and were sued by the owner of the balance, and 
 recovery had against them : — Held, that the attorneys had no equity 
 against complainants to require to be indemnified for their act in selling 
 the excess. Ihid. 
 
 SIT. Nor does it make any diiference in this respect, that the attor- 
 neys appear to have acted in making such sales on a supposed authority 
 from the owner of the balance of the mortgage; as the law in such 
 case, complainants not being in fault, will leave the misfortune to 
 rest where it has fallen. Ibid. 
 
 31§. Accordingly where, in such case, after suit brought against the 
 attorneys for the value of the goods sold beyond what was sufficient to 
 pay complainant's debt, they obtained from their clients a bond of 
 indemnity against the suit — ^the clients supposing the suit to be brought 
 for the whole value of the goods sold under the mortgage ; — Seld, that 
 the bond was wrongfully obtained, and should be given up to be can- 
 celled. Ibid. 
 
 319. Nor is the right of complainants to this relief alfected Ixy their 
 employing counsel to defend the suit against the attorneys ; they having 
 already given the bond, and there being no evidence that they knew at 
 the time what their rights were. Ibid. 
 
 320. Such bond of indemnity, where the only liability of the attor- 
 neys was for making sale of the excess after satisfying the claim of their 
 clients, is without consideration. Ibid. 
 
 321. Privileged commnnications. A communication made 
 to an attorney, under the impression that the attorney had consented to 
 
 39 
 
328 BAILMENT. 
 
 act as such for the party making it, is privileged ; but it must he made to 
 the attorney as the legal adviser of the party, and for the purpose of 
 obtaining his legal opinion upon some legal right or obligation. Alder- 
 man ». People, 4 Mich., 414. 
 
 BAIL IN CIVIL CASES. 
 
 322. Exoneration. A Circuit Judge has no jurisdiction of pro- 
 ceedings for the commitment of a defendant, in exoneration of special 
 bail, unless copies of the bail piece are presented to him, as the basis of 
 his action, as required by the statute. It is not sufficient that copies of 
 the recognizance of special bail are presented^ instead of the bail piece. 
 EUiott V. Dudley, 8 Mich., 03. i 
 
 BAILMENT. 
 
 323. Whetlier bailment or sale. A warehouseman gave a 
 receipt for wheat delivered in store, stating that the wheat was subject 
 to the order of the person storing it, and deliverable upon the return of 
 the receipt properly indorsed, and payment of charges. The receipt 
 also stated that loss or damage by fire, acts of Providence and heating 
 were at the owner's risk. It was held that the transaction was not a 
 Koie of the wheat to the warehouseman, but a bailment ; notwithstanding 
 a usage, well known to both parties, that the grain so received is to be 
 mixed with other grain of like kind and quality, and that deliveiy of the 
 same identical grain is not made or expected, but only an equal amount 
 of the same kind and quality. Erwin v. Clark, 13 Mich., 10. 
 
 324. The proprietary interest of the owner in the wheat will remain, 
 notwithstanding it be thus mixed ; being converted, however, into a 
 tenancy in common instead of an ownership in severalty. Ibid. 
 
 323. The warehouseman is liable in trover for the value of the wheat 
 if he refuses, on demand, to deliver the requisite quantity. IWd. 
 
 326. Proof of usage cannot be allowed to change a contract, which, 
 by its terms, is plainly one of bailment, into a contract of sale. Ibid. 
 And see Harvey v. Cody, 3 Mich., 431. For further decisions, see Car- 
 iiiERS OF Goods; 3Iakitimb Law. 
 
 327. Title to -wheat consigned. Where wheat is sent for- 
 ward by railroad, mingled in a common mass with other wheat, and 
 made by the receipt deliverable to a consignee named, the legal title to 
 it is in the consignee ; and a sale by the consignor to a third person 
 cannot pass the title without the co-operation of the consignee. Perkins 
 T. Damn, 13 Mich., 81. 
 
 328. The consignor having made a contract of sale, and given to the 
 
 40 
 
BANKS AND BANKING. S S^ 
 
 vendee an order on the consignee for the delivery of the wheat, the 
 order was held to be an undertaking on his part that the consignee 
 should complete the sale hy making delivery ; and the vendee having 
 made an ineflfectual attempt to find the consignee and obtain delivery, 
 and the wheat in the meantime being destroyed by the accidental burn- 
 ing of the warehouse, the consignor was held liable on this undertaking. 
 Ibid. 
 
 BANKRUPTCY. 
 
 329. A discharge in bankruptcy is conclusive on a creditor who 
 unsuccessfully opposed its being granted ; and he cannot afterwards, in 
 a suit brought to recover his debt, show that it was fraudulently ob- 
 tained. Wales V. Lyon, 2 Mich., 376. 
 
 330. "Wher, the defendant, pending a suit against him, applied for 
 and obtained his discharge, but neglected to avail himself of it in the 
 suit, the Court, the neglect being satisfactorily explained, granted a per- 
 petual stay of execution on the judgment rendered in the suit against 
 him. Bostwick v. Dodge, 2 Doug., 3-31. See also Parks v. Qoodwin, 1 
 Mich., 35. 
 
 331. After a joint plea to the merits by two defendants, one was held 
 to be entitled to plead severally, puis darrien, his discharge in bank- 
 ruptcy subsequently obtained. Such plea is an abandonment by him 
 of the joint plea, which afterwards stands as the several plea ot the 
 other defendant. Wheelock v. Rice, 1 Doug., 267. 
 
 BANKS AND BANKING. 
 
 1. General Principles. 
 
 332. Powers of officers. It is fairly within the scope of the 
 powers of the officers of a bank to receive for collection from an in- 
 dorser of a note due to the bank securities which the maker has turned 
 out to him, and to agree to apply the moneys on the note when col- 
 lected. And if they fail to make the application, equity will compel it. 
 Woks v. Bank of Michigan, Har. Ch., 308. 
 
 333. A bill of exchange directed to "J. A. "W., Cashier Farmers and 
 Mechanics' Bank of Michigan," and accepted across the face thereof, 
 "Accepted, J. A. W., Cashier," is drawn upon and accepted by the bank, 
 and not by W. in his individual capacity. Fwrmrs and Meclumics' 
 Bank v. Troy City Bank, 1 Doug., 457. 
 
 334. The extent of the general powers of the cashier of a bank, is a 
 question of law and not of fact ; and a charge is erroneous which refers 
 
 41 
 
§ 344 BANKS AND BANKING. 
 
 it to the jury to detennine whether a cashier, as such, had power to 
 accept certain bills for the bank. Ibid. 
 
 335. The cashier of a bank has no power to accept bills of exchange, 
 on behalf of the bank, for the accommodation, merely, of the drawers ; 
 and the holder, with notice, of bills so accepted, cannot recover against 
 the bank. Ibid. 
 
 336. The general powers of the cashier of a bank being defined and 
 limited by law, persons dealing with the bank are presumed to know 
 their extent. Ibid. 
 
 337. A transfer, by way of security, of a portion of the effects of a 
 bank, for the purpose of enabling it to continue business, is within the 
 power of the directors. Bank Commissioners v. Bank of Brest, Har. Ch., 
 106. 
 
 338. The cashier, in the absence of proof to the contrary, will be 
 presumed to have authority to turn out the notes and assets of the 
 bank in pajrment of its indebtedness. Kimball ii. Cleveland, 4 Mich., 606. 
 
 339. Re§triction on poisver to Iiold lands. Where a 
 bank has power, under its charter, to take and hold lands for the con- 
 venient transaction of its business, and to secure debts, but for no other 
 purpose, it has no right to purchase lands for the purpose of selling 
 them again ; and the Court of Chancery wiU not assist it in enforcing a 
 contract made with that intent. Bank of Michigan v. Niles, Wal. Ch., 99. 
 
 340. Restriction as to interest. A bank may take a mort- 
 gage for a debt due to it, with seven per cent, interest, notwithstanding 
 it is prohibited by its charter, from taking more than six per cent, in 
 advance on its loans and discounts. Bailey v. Murphy, Wal. Ch., 434. 
 
 341. Vnautliorized agencies. The establishment by a bank 
 of an agency for the transaction of banking business at another place 
 than that specified in the charter, is a violation of the charter. Attorney 
 General V. OaUand County Bank, Wal. Ch., 90; People v. Oakland County 
 Bank, 1 Doug., 383. 
 
 342. Banking po'wers, 'what are. The issue of paper, de- 
 signed to circulate, in the form and similitude of bank bills, is an act of 
 banking. People v. Bimr Eaisin and Lake Erie M. B. Co., 13 Mich., 389- 
 
 343. Discounting Paper. The buying of exchange by a bank 
 is, in effect, discounting paper. People v. OaUand County Bank, 1 Doug., 
 282. 
 
 2. The Genbkal Baitking Law of 1837. 
 
 344. The statute'prescribed the mode in which the affairs of associa- 
 tions formed under this law should be wound up in case of insolvency ; 
 and this being designed as a part of the security to the public, was one 
 
 42 
 
BANKS AND BANKING. § 351 
 
 of the conditions upon which they took their corporate powers. Bank 
 CommisHonera v. Bank of Brest, Har. Ch., 106. 
 
 345. So much of the law as authorized the organization of corpora- 
 tions under it, declared unconstitutional, as opposed to that clause of 
 the constitution which provides that " The legislature shall pass no act 
 of incorporation unless with tlie assent of at least two-thirds of each 
 house." Oreen «. Graves, 1 Doug., 351. 
 
 346. By the General Banking Law the directors of a bank were to 
 be individually liable for the payment of the debts in case of its insol- 
 vency. By a prior act banking was made unlawful unless authorized 
 by law, and penalties were imposed for engaging in it. In an action 
 
 /brought against the directors of an association formed under the Gene- 
 ral Banking Law, to charge them with the payment of one of its debts, 
 it was held that the law against illegal banking was not repealed by the 
 General Banking Law, except in favor of incorpwated bamJcs organized 
 under it ; and as by the constitution corporations could not be created 
 under this law, and the banks so organized were illegal, the action 
 against the directors could not be sustained. Brooks i>. Hill, 1 Mich., 118. 
 
 347. The directors and stockholders could neither be held liable for 
 the bills and other indebtedness of the bank, as stockholders and direc- 
 tors of the association, nor as partners. State v. How, 1 Mich., 513. 
 
 3. Proceedings Agadtst Banks foe Insolvency, &c. 
 
 348. Insolvency. For a case where the facts were held to estab- 
 lish a case of insolvency within the meaning of the statute, and for the 
 appointment of a receiver to wind up its affairs, see Bank Commissioners 
 V. Bank of Brest, Har. Ch., 106. 
 
 349. Assignment to avoid tlie statute. Where the direc- 
 tors of a bank made an assignment of its assets for the benefit of 
 creditors, with a view to evade the provisions of statute providing how 
 insolvent banks should be wound up, it was held that such assignment 
 was against the policy of the law, and void ; and the Court of Chancery 
 appointed a receiver. Bank Commissioners v. Bank of Brest, Har. Ch., 
 106. 
 
 350. Jurisdiction of Chancery. 'The jurisdiction of Chan- 
 cery over corporations for the purpose of restraining their operations, 
 or of winding up their concerns, is based upon and controlled by the 
 statutes of the State ; and it will not interfere except when a case is 
 fairly brought within the statute. Attorney General v. Bank of Michi- 
 gan, Har. Ch., 315. See also Attorney General v. OaMand County Bank, 
 Wal. Ch., 90. 
 
 351. Suspension of payments. The fact that a bank, not 
 authorized to do so by statute, has stopped payment, is not of itself 
 
§ 361 BANKS AND BANKING. 
 
 conclusive eyidence of its inability to pay its debts ; but it is prima facie 
 evidence of inability or insolvency, except where the bank is authorized 
 to suspend by statiite. Attorney Creneral v. Bank of Michigan^ Har. Ch., 
 315. See also Bwntim v. Bank of Pontiac, Har. Ch., 116. 
 
 352. Injunction will not be granted in the first instance on an 
 allegation alone that the bank has stopped payment ; but a rule to show 
 cause. If not explained or excused, the Court will be authorized to 
 grant an injunction and appoint a receiver. Hid. 
 
 353. See for a construction of the suspension act of 1841, Attorney 
 Oeneral v. Bank of Michigan, Har. Ch., 315. 
 
 354. See the case of Attorney General v. Oakland County Bank, Wal. 
 Ch., 90, for a statement of the general principles governing the Court in 
 granting and refusing to dissolve injunctions against such corporations, 
 on bill filed for their dissolution and for the forfeiture of charter. 
 
 355. Where the proceeding is against the bank as a failing corpora- 
 tion, its primary object is not for the purpose of dissolving the corpora- 
 tion, but to protect the assets for the benefit of creditora. The dissolu- 
 tion of the corportion is merely incidental. I^ay v. Erie and Kalamaeoo 
 B. B. Bank, Har. Ch., 194. 
 
 356. The Court may, in such a case, dissolve the injunction, discharge 
 the receiver, and jDermit the party to dismiss his bill, when it is satisfied 
 that the interest of all concerned will be best subserved by permitting 
 the corporation to manage its own affairs. Ibid. 
 
 357. It is the duty of the Court to look into the condition of the cor- 
 poration before discharging the receiver, and to make such order, either 
 absolute or conditional, as the case may require. Ibid. 
 
 358. Application for an injunction against the Bank of Pontiac. The 
 bill alleged merely a demand and refusal on the part of the bank to pay 
 its notes. Injunction refused. Barnum v. Bank of Pontiac, Har. Ch., 
 116. 
 
 359. In the act incorporating the Bank of Pontiac, the act of April 
 38, 1833, is referred to and in effect made a part of the charter. That 
 act gives the bank sixty days in which to redeem its notes ; and the 
 farther provision that the act shall not prevent the issuing of an injunc- 
 tion, does not change the law in relation to granting injunctions. Ibid. 
 
 360. An injunction against a bank goes to prevent all action what- 
 ever, and is rather in the nature of a final injunction which is granted 
 at the termination of a cause, than the usual preliminary injunction. 
 Such a case should be made out as would authorize the Court to wind 
 up the concerns of the bank. Ibid. 
 
 361. Forfeiture on quo w^arranto. Where a bank became 
 insolvent and suspended operations in 1840, and did not resume again 
 until 1864, it was held that the State had not, by laches, lost its right to 
 
 44 
 
BANKS AND BANKING. § 365 
 
 insist upon a forfeiture of the corporate rights under tlie statute — Comp. 
 L., § 4854 — for continued insolvency " for one whole year.'' The State 
 shows sufficient diligence — if any is required — if it institutes proceed- 
 ings and claims the forfeiture within a reasonable length of time after 
 the resumption of business, or an attempt to resume, on the part of the 
 corporation. People v. Bank of Pontiae, 12 Mich., 537. 
 
 362. Only fourteen months of the chartered existence of the bank 
 remaining unexpired, when it resumes business after a suspension of 
 twenty-four years, the Court, if it has a discretion so to do under the 
 statute, will not impose a fine instead of adjudging a, forfeiture of the 
 charter. Ibid. 
 
 4. Proceedings to Cause Securities to be Sold foe the Redemp- 
 tion OF Bills. 
 
 363. Evading redemption. Upon the presentation of the 
 circulating notes of a bank for redemption, the mode adopted by the 
 officers was to take up and separate from the rest one at a time, examine 
 it, step back to the table, pick up the requisite amount of coin, and pay 
 over to the bill holder ; and so proceed, redeeming the notes one by one, 
 until the close of banking hours, and then refuse to redeem further for 
 the day. The officers also tendered to the bill holders bags of coin at 
 the sums marked thereon, but on the condition that there should be no 
 recourse to the bank for the correction of errors, if any, ]put only to 
 those from whom the bank received the coin. The bank also refused to 
 employ more than one person to redeem its notes ; and large amounts 
 presented failed of redemption, upon the claim that the bank was 
 unable to make further redemption during banldng hours. Held, that 
 the coui'se of the bank officers was evasive, and tantamount to a refusal 
 to redeem. People v. State Treasurer, 4 Mich., 27. 
 
 364. Action by State Treasurer. The provision in the 
 charter of the Government Stock Bank, that upon filing affidavit of 
 refusal to redeem, &c., with the State Treasurer, he shall thereupon 
 give notice that the notes of said bank will be redeemed at his office, 
 made it the duty of the Treasurer to act at once. He had no right to 
 wait for counter affidavits from the bank, and his doing so might be 
 treated as a refusal on his part to act. Ibid. 
 
 365. On application for a peremptory mandamus, commanding the 
 State Treasurer to pay the relator such sum as he was entitled to, as 
 holder of some of the circulating notes of the Government Stock Bank, 
 out of the avails of the stocks deposited with the State Treasurer, it was 
 not necessary that the affidavits should show that the notes were coun- 
 tersigned as required by law. The averment that they were issued by 
 
 45 
 
§ 373 BILLS OF EXCHANGE. 
 
 the bank, necessarily implied this. People v. State Treasurer, 3 Mich.. 
 544. 
 
 366. Under the charter of said bank, after the stocks deposited with 
 the State Treasurer for securing its circulating notes had been sold for 
 their redemption, it was his duty forthwith to apply the proceeds for 
 that purpose. Ibid. 
 
 367. It did not vary the case that the bank had been declared insol- 
 vent, and a receiver appointed, and a notice published for creditors to 
 present and prove their claims. Circulating notes were to be first paid, 
 and did not require proof Ibid. 
 
 BASTARDY. 
 
 36§. Complaint. In a proceeding to compel the support of a 
 bastard child by its father, no complaint, distinct from the " accusation 
 and examination" of the mother in writing, under oath, is required. 
 And where such accusation and examination appears, preceded by a 
 formal complaint made by another person, the latter may be treated as 
 surplusage. Cross «. People, 10 Mich., 35. 
 
 369. Issue. There is no necessity for a formal issue, but if the de- 
 fendant does not admit the charge, it is to be left to the jury. Ibid. 
 
 370. Order on conviction. An order which, after adjudging 
 defendant to be the father of a bastard child, directs him to pay towards 
 the support of the child a specified sum, "with the assistance of the mother,^' 
 is bad for uncertainty. It should definitely fix the liability of the defen- 
 dant. Ibid. 
 
 371. Costs. A defendant who was found guilty and adjudged to be 
 the father of a bastard child, under the Eevised Statues of 1846, was 
 held not liable for the costs of the proceeding ; the statute being silent 
 on the subject of costs in such a case. Booth v. McQueen, 1 Doug., 41. 
 
 372. Revie-wing- proceedings. Proceedings in the Circuit 
 Court under the Bastardy Act cannot be removed into the Supreme 
 Court by writ of error. Cross «. People, 8 Mich., 113. But njay be, by 
 common law certiorari. Gross v. People, 10 Mich., 35. 
 
 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 373. What is a l>iI5 of exchange. An instrument signed 
 officially by the president and secretary of a corporation, requesting its 
 treasurer to pay to K. or bearer a certain sum of money, is a bill of ex- 
 change drawn by the corporation upon itself. Sase^/ v. White Pigeon 
 Beet Suga/r Company, 1 Doug., 193. 
 46 
 
BILLS OF EXCHANGE. S 383 
 
 374. Acceptance of such a bill is not necessary, the act of draw- 
 ing being deemed an acceptance. lUd. See post 380, 382. 
 
 375. Its legal effect is the same as that of a promissory note ; it 
 imports a promise to pay on demand, and an action may be maintained 
 upon it without proof of a demand of payment upon the treasurer. 
 lUd. 
 
 376. "Wliat i§ a promissory note. An instrument uncondi- 
 tionally promising to pay a specified sum at a certain time, to the payee 
 or bearer, is a promissory note, notwithstanding the consideration upon 
 which it was given is stated in the instrument. Bea/rddee v. Horton, 3 
 Mich., 560. 
 
 377. An instrument by which the makers promise to pay to the 
 order of the payees, at a time and place named, a specific sum of money, 
 with eurrent exchange on New York, is a promissory note, and the in- 
 dorsee may bring suit upon it in his own name. Smith v. Kendall, 9 
 Mich., 341. 
 
 378. What is not. An instrument by which the maker promises 
 to pay to the payee or bearer a certain sum by a time named, but which 
 recites that the payee agrees to receive certain a less sum in satisfaction, 
 if paid on an earlier day named, is not a promissory note. Fralickv. Nor- 
 ton, 3 Mich., 130. 
 
 379. Authority to draw. A letter of credit was given, in the 
 following words : " To enable you to make advances on grain, or other 
 produce, to be consigned to us, or for us, at Oswego, during the ensuing 
 fall, you are at liberty to make drafts on us, in amounts necessary for 
 such operations, on such terms as you can make advantageously for us. 
 Your drafts may be made payable here, or in New York at the Com 
 Exchange Bank." Held to be an unconditional authority to make drafts. 
 Bissdl V. Lewis, 4 Mich., 450. 
 
 380. By the law of New York, whence the letter was sent, and 
 where the drafts were made payable, such a letter is an unconditional 
 acceptance, and should be so construed here. Ihid. 
 
 381. It is not necessary for the payee in such a draft, who has re- 
 ceived it on the credit of the written authority, to show that .the funds 
 raised by it were used for making advances on grain, or other produce, 
 to be consigned to the persons giving the authority. Ihid. 
 
 382. A parol acceptance of a bill is made void by statute. 
 Oomp. L., §1366. A parol agreement by a tax collector, to receive in 
 payment of taxes a draft drawn by his creditor upon himself, is within 
 this statute. Elliott v. Miller, 8 Mich., 133. 
 
 383. "When subject to equities. A person to whom a promis- 
 sory note has been indorsed in payment of a pre-existing debt, is a hold- 
 er for a valuable consideration, and is not aflfected by any equities be- 
 
 47 
 
S 390 BILLS OF EXCHANGE. 
 
 tween the antecedent parties, wliere he has received the note before it 
 came due, without notice of such equities. Boatwick v. Dodge, 1, Doug., 
 413 ; Outhwite v. Porter, 13 Mich. 533 ; overruling in this particular, In- 
 gersonv. StarJaoeather, Wal. Ch., 347. See Baker v. Pierson, 5 Mich., 459. 
 
 384. "Whenever the consideration of negotiable paper is illegal be- 
 tween the original parties, especially if in violation of a positive prohibi- 
 tion of statute, proof of such illegality throws upon the holder the bur- 
 den of proving that he got it bona tide, and gave value for it. Paton v. 
 Gait, 5 Mich., 505. 
 
 3§5. Where, therefore, action was brought by the assignee upon 
 negotiable paper, and defendant showed that the same was given for in- 
 toxicating drinks sold in violation of the Prohibitory Liquor Law of 
 1855, which makes such paper " utterly null and void against all per- 
 sons, in all cases, excepting only as against the holders" " who may 
 have paid therefor a fair price, and received the same upon a valuable 
 and fair consideration, without notice or knowledge of such illegal con- 
 sideration" — such showing by defendant was held to make out a prima 
 facie defense, and that the burden of proof was thereby cast upon the 
 plaintiff, to show those facts which would bring him within this excep- 
 tion of the statute. Ibid. 
 
 386. The English rule, that a negotiable note payable on demand 
 does not become over due by mere lapse of time, has been modified in 
 this country, so that a promissory note thus payable, unless indorsed in 
 a reasonable time, is considered over due and dishonored. Ca/rU v. 
 Brovm, 2 Mich., 401. 
 
 387. What is such reasonaljle time is to be determined by the Court 
 on the facts of each particular case. Ibid. 
 
 388. A negotiable note, bearing date May 25th, was sued by the 
 bearer on the 19th of June following. Held that the note could not be 
 considered over due — no prior demand being shown — before it came to 
 the hands of the bearer. Ibid. 
 
 389. A note payable to order and without contingency, on a day 
 certain, is not the less negotiable because purporting to be according to 
 the condition of a mortgage, when the terms of the mortgage correspond 
 with those expressed in the note. LittUjidd v. Hodge, 6 Mich., 326. See 
 Diiiton V. Ives, 5 Mich., 515. 
 
 390. WTio is holder for value. A tax collector's agent re- 
 ceived from a creditor of the collector a draft on the collector in pay- 
 ment for taxes, and the collector refused to accept and allow it. The 
 agent thereupon paid over the amount of the tax himself It was held 
 that he was holder of the draft for value, and entitled to collect it from 
 the parties. EUiott i>. Miller, 8 Mich., 132. 
 
 48 
 
BILLS OF EXCHANGE. § 399 
 
 391. Received as collateral or conditional payment. 
 
 Where a party receives negotiable paper from liis debtor, with the debt- 
 or's indorsement, as collateral security for his demand, and not as 
 agent merely, it is his duty to present the same for payment when due, 
 and take the proper steps to charge the debtor as indorser ; and failing 
 to do this, he makes the paper his own. Jennison v. Parker, 7 Mich., 
 355. 
 
 392. Where a draft is received as conditional payment, the right of 
 action upon the debt is suspended until the draft is properly presented 
 for payment, and payment refused. Phmnix Inaurcmce Co. «. Alien, 11 
 Mich., 501. 
 
 393. By accepting a draft as conditional payment, the creditor ac- 
 cepts the duty of doing everything with respect thereto, which is neces- 
 sary to fix the liability of the parties. And the onus is upon him to show 
 that he has performed the duty, when he seeks to recover upon the ori- 
 ginal cause of action. Hid. 
 
 394. Where one transfers notes to another for property purchased, 
 on an agreement that if the notes are not collected the purchaser is to 
 make up the deficiency, the purchaser only takes the notes as condition- 
 al payment ; and if not paid at maturity, he is under no obligation to 
 bring suit upon them, but may immediately sue the purchaser for the 
 amount. [Chbistiancy, J.] Dodge v. Stanton, 12 Mich., 408. 
 
 395. The effect of thus receiving notes as conditional payment, is 
 simply to postpone payment of the demand on which they are received 
 until the securities fall due. lUd. 
 
 396. 'Wlien indorser a maUer. Where two persons indorsed 
 a note at its making, and before its delivery to the payee, to enable the 
 maker to purchase with it certain property of the payee, it was held 
 they were to be considered joint original promissors with the maker. 
 Wetlh&rwax v. Paine, 2 Mich., 555. See also, Higgins v. Watson, 1 Mich., 
 428. But see. Tinker v. MoOatdey, 3 Mich., 188, disapproving the last 
 mentioned case. 
 
 397. Indor§er's contract. The indorser of a note for whose 
 benefit it was discounted does not, in consequence of that fact, incur any 
 other liability than that of his indorsement ; and proof of that fact is, 
 therefore, irrelevant in a suit against, him. Newberry i>. Trowbridge, 13 
 Mich., 263. 
 
 398. Proof is also irrelevant that a note in renewal of which the 
 one in suit was given, was purchased of the maker thereof by the in- 
 dorser for less than its face ; as no such evidence could change the na- 
 ture of the Indorser's contract, or excuse a failure to take the necessary 
 steps to charge him upon it. Ibid. 
 
 399. Demand of payment. As against the maker of a promis- 
 
 4 49 
 
§ 406 BILLS OF EXCHANGE. 
 
 sory note, payable at a particular place, the plaintiflF is not required to 
 prove presentment or demand of payment at the place specified. Beeoe 
 V. Pack, 6 Mich., 240. 
 
 400. A witness called to prove the dishonor of a note, who only 
 testifies that he went to find the maker's last place of residence, and that 
 the note was not paid, and that he then protested it, but does not testify 
 concerning his knowledge of the residence, nor whether, if no personal 
 demand was made, there was any valid reason for the omission, does 
 not suflBciently show the dishonor. Neoius v. Bank of Larmngburg, 10 
 Mich., 547. 
 
 401. A draft payable at sight should be presented for payment 
 within a reasonable time ; and a court can not, as a matter of law, say 
 that any delay is reasonable beyond that which is required in the ordi- 
 nary course of business, without special inconvenience to the holder ; 
 or by the"special circumstances of the particular case. PTusnix Insurance 
 Oo. V. AMen, 11 Mich., 501. 
 
 402. A draft drawn at Cincinnati, May 3, 1861, on persons in Chi- 
 cago, payable at sight, was received in Detroit, May 4th, but not trans- 
 mitted for presentment until the 35th of that month. There was a daily 
 mail between Detroit and Chicago, occupying from twelve to fourteen 
 hours in its passage. No evidence was given to explain or excuse the 
 delay in presentment ; and it was held that, without any evidence bear- 
 ing upon the point, it was error to submit to the jury the question 
 whether the draft was presented for payment in a reasonable time. 
 lUd. 
 
 403. It was held further that counsel should not be permitted to 
 read to the jury and comment upon cases found in the books of reports, 
 upon the question, submitted to them as one of fact, whether the draft 
 was presented for payment in a reasonable time. Ibid. 
 
 404. On a subsequent trial of the same case, evidence was given 
 showing that the delay in making presentment was for the purpose of 
 enabling the creditor to correspond with the debtor as to the funds that 
 should be received in payment. But, as neither party could change the 
 character of the bill, which was collectable according to its terms, it was 
 held that the reason assigned was no excuse. PluBnvs Insurance Co. v. 
 Gray, 13 Mich., 191. 
 
 405. A notice of dishonor must contain words directly, or by 
 necessary construction, showing that the note has been presented for 
 payment and payment refused. And its sufficiency is to be determined 
 by the Court as a matter of law. Piatt v. Drake, 1 Doug., 296. 
 
 406. A notice to an indorser that a promissory note " has been pro- 
 tested for non-payment," and that the holders look to him for payment 
 of the same, was held not sufficient, because the statement that the note 
 
 50 
 
BILLS OF EXCHANGE. § 413 
 
 liad been protested referred rather to the^aking, by the notary, of the 
 instrument called a protest, than to the acts which might authorize the 
 protest to be made ; and no protest of a promissory note was necessarj'. 
 find. Affirmed in Newberry v. Trowbridge, 4 Mich., 391. 
 
 407. But a similar notice to the indorser of a foreign bill was held 
 aufflcient. Spies i>. Newberry, 3 Doug., 425. 
 
 408. And where the note was payable in another State, under whose 
 statutes notaries public were authorized to demand payment of promis- 
 sory notes and to protest them for non-payment, it was held that a simi- 
 lar notice was sufficient. Snow v. Perkins, 2 Mich., 338. 
 
 409. The two cases of Piatt v. Drake, and Newberry v. Trowbridge, 
 aupra, doubted, and said to be founded on a misapprehension which led 
 the Court to overlook both commercial usage and statutes which sanc- 
 tioned protests of notes and inland bills. Burkliamv. Trowbridge, 9 Mich., 
 209. See Newberry v. Trowbridge, 18 Mich., 263. 
 
 410. In a notice of dishonor no technical phrases are necessary ; but 
 it is only required that the terms used be such as fairly and naturally 
 lead a mind of ordinary intelligence to the idea that the paper has been 
 presented at maturity and dishonored, and that the party notified is 
 looked to for payment. lUd. 
 
 411. A notice to a party, dated on the day of the maturity of an in- 
 land bill, and stating that the bill was on that day, by the notary public 
 who signed the notice, protested for non-payment, after due demand 
 and refusal, and that the holder looked to the party notified for pay- 
 ment, is sufficient. lUd. 
 
 412. A mistake in describing a promissory note in a notice of pro- 
 test^as where the note was for $300, but was described in the notice as 
 for $175 — does not necessarily yitiate the notice ; the question in such 
 case being whether the indorser was misled by the notice. Siiow v. 
 
 , Perkins, 2 Mich, 238. 
 
 413. The object of the notice is to inform the indorserofthe non^a.y- 
 
 . inent of the note by the maker, and that the indorser is liable for the, 
 payment of it; and a notice which accomplishes this object is sufficient, 
 although it misdescribe the note in some particulars. Ibid. 
 
 414. Notice of dishonor deposited in the post-office where the person 
 to whom it is directed receives his letters is sufficient, if such person 
 does not reside within the place. Neviius v. Bank of Lansingburg, 10 
 Mich., 547, overruling in this particular, Newberry v. Trowbridge, 4 
 Mich., 391. 
 
 415. But if the person to be notified resides in the place, the notice 
 must be personal, or left at his place of abode or business. And where 
 it was deposited in the post-offlce, j)roof that the person received it the 
 
 51 
 
§ 424 BILLS OF EXCHANGE. 
 
 second day after the dishonor, is not sufficient to charge him. Neoiug v. 
 Bank of Lansmgbwgh, 10 Mich., 547. 
 
 416. It is not necessary that a copy of the protest of commercial 
 paper should accompany the notice. Atwater v. Streets, 1 Doug., 455. 
 
 417. Proof to cliarge indor§er. Proof of any one or more 
 of the legal conditions necessary to charge an indorser, has no tendency 
 whatever to prove a compliance with the rest. Cieotte v. Morse, 8 
 Mich., 434 
 
 41§. Proof of notice. Where there is no direct evidence of 
 notice to the indorser, a subsequent' recognition of liability by him is pre- 
 sumptive evidence, in the nature of an implied admission, that notice 
 has been given. But where the plaintifi attempts to prove due notice, 
 and only succeeds in proving one which is defective in form or mode of 
 service, this excludes the presumption of a proper and sufficient no- 
 tice ; and a part payment by the indorser afterwards will not operate as 
 an unqualified acknowledgment of liability, unless it be shown that he 
 knew at the time that the notice was defective. Newberry v. Trowbridge, 
 13 Mich., 363. 
 
 419. W^aiver of notice. An offer by the indorser of a note to 
 pay the sum due thereon in depreciated bank bills, without explanation 
 can be regarded only as an oflFer to compromise ; and cannot operate as 
 a waiver of notice, or as an unqualified acknowledgment of his liability 
 on the note. Ibid. 
 
 420. And the mere fact of part payment of the note by the indorser 
 in depreciated bank bills, will not amount to an unconditional acknow- 
 ledgment of his liability to pay the whole. Ibid. 
 
 421. Suit against remote indorser. Where the holder of a 
 note, striking out intermediate indorsements, declares against a remote 
 indorser as on a contract made directly to himself, he recovers on the 
 contract of the defendant with his immediate indorsee. Kinzie v. Farm- 
 ers and Meehanics' Bank, 3 Doug., 105. 
 
 422. An agent may sue in his own name a note which he holds 
 for collection, and which is payable to bearer or indorsed in blank. 
 BrigMm v. Chirney, 1 Mich., 349. 
 
 423. Admission of execution by not denying. Under 
 the statute, in justices' courts when any written instrument purporting 
 to be executed by one of the parties is declared upon or set off, it may be 
 used in evidence on the trial against such party without proving its exe- 
 cution, unless its execution be denied by oath at the time of declaring, 
 pleading, or giving notice of set off, if such instrument shall be pro- 
 duced and filed with the justice. Oomp. L., §3767. And its execution 
 shall not be denied except under oath as so provided. Oomp. L., §3714. 
 
 424. Under this statute, where plaintiff declares asrainst two or more 
 
 53 
 
BOABD OF SUPERVISORS. § 431 
 
 defendants as makers of a promissory note which is signed with a col- 
 lective name, and which is produced and filed with the justice, the 
 defendants appearing to the action and pleading without oath are to 
 be taken to admit, not only the execution of the note in the abstract, 
 but that it was executed by the parties declared against. Pegg v. Bidle- 
 man, 5 Mich., 26. 
 
 425. "Where a party had failed to deny the execution of a note at the 
 proper time, and moved for leave to amend on a subsequent day, so as to 
 allow him to make the denial, and the justice denied the motion, and re- 
 fused to allow him to show on the trial that he did not sign the note, and 
 rendered judgment against him, the judgment was affirmed. Fish ». 
 HcUe, 4 Mich., 506. 
 
 436. Under rule 79 of the Circuit Courts, a promissory note a copy of 
 which was attached to and served with the declaration, may be read in 
 evidence under the common counts, without prcof of the signature, 
 where its execution is not denied on oath. Hoard v. Little, 7 Mich., 468. 
 
 42T. " Current funds." A note payable in " current funds," 
 in the absence of all evidence showing that anything else is current at 
 the place of payment, must be regarded as payable only in such funds 
 as are current by law. Plmnix Insurance Co. v. Allen, 11 Mich., 501. 
 
 428. Renewal note, when a payment. A note which two 
 parties had indorsed for a third being over due, the holder wrote the in- 
 dorsers requesting a new note in renewal. They sent one accordingly, 
 made and indorsed by the same parties, and requested the return of the 
 old note. No notice was taken of this request, nor were any steps taken 
 to fix the liability of the indorsers on the new note ; but after it fell due 
 suit was brought on the old note, and the new note tendered to the in- 
 dorsers on the trial, who refused to receive it. Held, that the plaintiff, 
 by retaining the new note under the circumst ances had made it his 
 own. SageiJ. Walker, 13 Mich., 325. 
 
 BOARD OF SUPERVISORS. 
 
 430. Record of: Quorum. It is not essential to the record of 
 proceedings of a board of supervisors that it be signed by the clerk or 
 chairman, or show what members composed the board, or that a quorum 
 was present. The presence of a quorum at the transaction of business 
 will be presumed. Lacey v. Davis, 4 Mich., 140. 
 
 431. Appeals from. The constitution having provided that the 
 action of the board, in adjusting county demands, should be subject to 
 no appeal, the Supreme Court cannot revise their action by mandamus, 
 and compel them to allow a demand which they have rejected on the 
 
 53 
 
t? 440 BOAT AND VESSEL LAW. 
 
 ground that the services charged for were not performed. PeapU v. 
 AudUors of Waym, 10 Mich., 307. 
 
 432. But where a demand is by law made a charge against the 
 county, which it is the duty of the supervisors unconditionally to allow, 
 they may be compelled to perform this duty by mandamus. People v. 
 Supervisors of Macomb, 3 Mich., 375; People u. Auditors of Wayne, 13 
 Mich., 383. 
 
 433. BfeAV county. Where a new county is created by setting off 
 for that purpose organized townships from existing counties, the super- 
 visors of these townships are thenceforth supervisors of the new county ; 
 their powers being conferred and duties imposed by the general laws of 
 the State, instead of by the act creating the new county. Carleto-n, 
 People V. 10 Mich., 350. 
 
 BOAT AND VESSEL LAW. 
 
 434. To \rhat cases it applied. Chapter 133 of the Revised 
 Statutes of 1846 — Ch. 149 of Comp. Laws — applied to contracts made 
 and injuries received within the State only, and not to such as had 
 arisen out of the State. Bidwettv. Whittaker, 1 Mich., 469; Tnnwr c. 
 Lewis, 3 Mich., 350. 
 
 435. But no distinction was made by the law between citizens of 
 this State and those of other States having claims. PM. 
 
 436. If the contract was made in another State, though to be per- 
 formed in this State, no lien attached under the law. Turner v. Leims, 
 2 Mich., 350. 
 
 137. A specific lien was given by the law on the boat or vessel, for 
 all such demands as were mentioned in the first section. Bidwell v. 
 Whittaker, 1 Mich., 469. 
 
 43§. For means or supplies furnished, or money advanced, in the 
 building, fitting and furnishing a vessel, the law gave no lien. The 
 lien was restricted to work done and materials furnished. Lamson v. 
 Higgins, 1 Mich., 335. 
 
 439. Under the act of 1839, for the collection of demands against 
 boats and vessels, (<S. L., p. 70) a portion of which was incorporated 
 into said Chapter 133, it was held that no specific lien was given upon 
 the vessel until an actual levy of attachment, and that the remedy by 
 the act was general, and not restricted to causes of action arising within 
 the State. Moses v. Steamboat Missouri, 1 Mich., 507. 
 
 440. The complaint under the act of 1839, should contain 
 every substantial averment which would be necessary in a declaration 
 at conunon law for the same cause of action, and it was governed by 
 
 54 
 
BOAT AND VESSEL LAW. § 447 
 
 the rules which apply to declarations, in respect to joinder and mis- 
 joinder of counts. Ovmers of Ship MUwomhee v. Hale, 1 Doug., 806. 
 
 441. In this case the complaint contained four counts ; two of which 
 were, in substance, that plaintiff shipped on board the vessel, which was 
 employed by the owners as common carriers, a certain quantity of 
 wheat, and, in consideration that the plaintiff promised to pay a certain 
 price for the transportation, the owners of the vessel received the 
 wheat on board, and agreed to proceed directly from the place of ship- 
 ment to the port of destination, and deliver the same in good order, but, 
 on the contrary, the vessel was so carelessly managed, &c., that the 
 wheat was lost, and not delivered. The other two counts set forth a 
 like shipment and undertaking to deliver, &c., pursuing the ordinary 
 route, without unnecessary deviation, &c., and alleged a deviation, 
 during which the ship was assailed by a great storm and wrecked, &c., 
 and the wheat was wet, damaged and spoiled, and wholly lost, &c., 
 and not delivered. Held that all these counts were in assumpsit, and 
 properly joined. Ibid. 
 
 442. In a complaint under said Chapter 133, (149) before an officer 
 authorized to perform the duties of a Judge of the Supreme Court at 
 chambers, it was not necessary to aver that at the time of the applica- 
 tion the vessel was within the county where the application was made. 
 But it was otherwise where the application was made to a Judge of a 
 court of record. Ward v. WUlson, 3 Mich., 1. 
 
 443. It was not necessary in order to confer jurisdiction, to set forth 
 that the services, &c., for which the claim was made, were rendered in 
 this State. Hid. 
 
 444. A description of the vessel as " a vessel navigating the waters 
 of this State," is equivalent to the averment that such vessel is used in 
 navigating, &c. Ibid. 
 
 445. Liien of other cre(Iitor§. Where, under the provisions 
 of said Chapter 122, a vessel was attached at the instance of a creditor, 
 and the notice to creditors to produce their claims was published three 
 months, and at the end of the three months, and before any order of 
 sale, the owner of the vessel procured her discharge by giving the bond 
 required by said chapter; if was held that creditors who had faUed to 
 file their demands with the proper officer within the three months, lost 
 the benefit of the lien given them by section one of said chapter. Wat- 
 kins V. Atkinson, 3 Mich., 151. 
 
 446. Suit on bond. In declaring on a bond executed under 
 § 13 of said chapter, it was not necessary to aver that the plaintiff made 
 the application in writing in manner and form required by g§ 3 and 3. 
 Truesdak v. Sima/rd, 3 Mich., 844. 
 
 447. Nor was it necessary to aver that the vessel released upon tht 
 
 55 
 
§ 456 BONA FIDE PURCHASER. 
 
 execution of the bond was, at the time of its seizure, within the jurisdic- 
 tion of the Court issuing the warrant. Ibid. 
 
 448. It was only necessary for the plaintiff to proye the execution of 
 the bond, and his claim or demand as set out in the declaration, to en- 
 title him prima facie to a recovery. Ibid. 
 
 449. The lanr nnconstitntional. Said chapter 132 is un- 
 constitutional. It conflicts with the provision that no person shall be 
 deprived of property without due process of law. Parsons v. BusaeS, 11 
 Mich., 113. [For enactments adopted since this decision, see Laws of 
 1864, p. 107 ; Laws of 1865, p. 672.] 
 
 BONA FIDE PURCHASER. 
 
 450. Notice by possession. Where the first purchaser of 
 lands is in possession, and the second purchaser is aware of that fact 
 when he purchases, that is sufficient notice to him of the rights of the 
 prior purchaser, and he takes the land subject to all equities existing 
 between his grantor and the first purchaser. Oodfroy v. Diabrow, Wal. 
 Ch., 260. For further decisions on this point, see Possession op Labb. 
 
 451. Orantee of. Although a party may not himself be a bona 
 fide purchaser withou^ notice, yet if his grantor was such a purchaser, 
 the former is entitled to all his rights, and to the protection which the 
 law would give him. Ibid. 
 
 452. But the defense of a bona fide purchaser can only be made by 
 the purchaser himself, or by some one claiming through his purchase. 
 Blcmclmrd v. Tyler, 13 Mich., 339. 
 
 453. Under recording laws. A subsequent purchaser whose 
 deed is first recorded, is presumed to be a bona fide purchaser without 
 notice, until the contrary is made to appear. Godfrey v. Diabrow, Wal. 
 Ch., 360. 
 
 454. Under the recording law of 1819 it was necessary for a party 
 who would avoid the effect of a subsequent conveyance first recorded, 
 to show that the grantee in such conveyance had notice of the prior 
 conveyance when he took his deed, or that he had not paid a valuable 
 consideration. Ibid. 
 
 435. A person who, at the time of receiving a deed from another, 
 knows him to have no title, or has notice of his want of title, cannot be 
 a bona fide purchaser under the recording laws, whether the real owner 
 of the title is known to him or not. Fitzhugh v. Barna/rd, 13 Mich., 104. 
 
 456. Constructive notice. A grantee is chargable with no- 
 tice of whatever appears in the chain of title through which he claims, 
 as weU as with the reasonable inferences therefrom ; as that a mortgage 
 given twenty -four years before has probably been foreclosed. Ibid. 
 56 
 
BONA FIDE PURCHASER. § 464 
 
 457. But in purchasing from one tenant in common, he has a right 
 to suppose the usual relations exist, and is not bound by partnership 
 equities between the tenants aflfecting the land in their hands. Adams v. 
 Bradley, 13 Mich., 346. 
 
 458. Payment after notice. To constitute a bona fide pur- 
 chaser, there must be a want of notice both at the time of the purchase, 
 and at the pajrment of the purchase money. Thomas v. Stone, "Wal. Ch., 
 117 ; Dixon v. HiU, 5 Mich., 404 ; Warmr v. WMUaker, 6 Mich., 133 ; 
 Blanchard v. Tyler, 12 Mich., 339. 
 
 459. Where a debtor had made an assignment of his property, which 
 was Toid on its face as to creditors, and plaintiff had bought the property 
 of the assignee and verbally agreed to pay for it, at certain rates, in his 
 notes on time, but before making any payments or giving any notes, 
 the property was taken on attachment against the fraudulent assignor ; 
 it was held, that the verbal promise to pay was not sufficient to protect 
 the title of the purchaser against the attachment. Dixon v. HiU, 5 Mich., 
 404. See also, Blaneha/rd v. Tyler, 13 Mich., 339. 
 
 460. Where land is purchased on which there is an unrecorded 
 mortgage, of which the purchaser had no notice, but of which he is no- 
 tified before a mortgage given by him for purchase money is paid ; any 
 payment made by him on his own mortgage after such notice, is made 
 in his own wrong, and he is not protected, as to such payment, against 
 the unrecorded mortgage. Wa/rner v. WMUaker, 6 Mich., 133. 
 
 461. IVotice to agent. Where a debtor, owning lands incumbered 
 by mortgages, gave his creditor a deed of the lands, on a parol under- 
 standing that the creditor was to dispose of them for the payment of the 
 mortgages, and of his debt, and account to the debtor for the balance, 
 and the creditor, instead of paying off the mortgages, bought them as 
 agent for, and in the name of, a third person, who claimed not to be 
 aware of this understanding ; held, that the latter was chargeable with 
 notice of the facts of which his agent was cognizant, and took the land 
 subject to the debtor's equities. Emerson v. Atwater, 7 Mich., 13. 
 
 463. Extinguishing equities by foreclosure. Such pur- 
 chaser of the mortgages could not cut off the debtor's equities by selling 
 the land mortgaged, under the power of sale, and bidding it in himself 
 IMd. 
 
 463. An attachment creditor is not a bona fide purchaser 
 within the meaning of the recording laws until the property attached 
 has been sold in pursuance of law, and purchased in by him. GolumMa 
 Bank v. Jacobs, 10 Mich., 349. 
 
 464. Fraudulent mortgage. One who has given a mortgage 
 to be sold for a fraudulent purpose, cannot set up the fraud as a defense 
 
 57 
 
§ 473 BOND. 
 
 to the mortgage in the hands of a bona fide purchaser. Bloomer v. Hen- 
 derson, 8 Mich., 395. 
 
 465. Judicial sale : ivantof jurisdiction. Where a want 
 of jurisdiction appears on the record of a Court of general jurisdiction, 
 the record is a nullity, and no rights can be acquired by purchasers un- 
 der it. WUson v. Arnold, 5 Mich., 98. 
 
 466. Personal property : conditional sale. One in pos- 
 session of personal property, of which he has made a conditional pur- 
 chase, cannot, before the condition has been complied with, sell the 
 property so as to vest the title in a bona flde purchaser. Couse ». 
 Tregent, 11 Mich., 65. 
 
 BOND. 
 
 468. Alteration. Where the penalty of an official bond was re- 
 duced $5,000 by the board having power to fix it, after a part of the 
 sureties had signed it, it was held that it was thereby made void as to 
 the sureties who had signed [it, but that it was valid as to those who 
 signed it afterwards. People v. Brown, 2 Doug., 9. 
 
 469. Wlien joint and several. A bond in these words : 
 " Know all men by these presents, that I, A. B., principal, and C. D.,E. 
 F., and G-. H., sureties, are held," &c., " for the payment of which sum 
 well and truly to be made, we bind ourselves, our heirs, executors and 
 administrators, severaUy, firmly by these presents," is a joint, as well as 
 several bond. Supervisors of St. Joseph v. Goffiiibury, 1 Mich., 355. 
 
 470. "When good at common law. A bond given by the 
 treasurer of a county for the faithful performance of his official duties, 
 to the board of supervisors of the same county, is a good and valid 
 bond, notwithstanding there may be no statute requiring such bond to 
 be given. lUd. 
 
 471. In suit on lost note. The bond to be executed by plain- 
 tiflf to defendants, under R. S. of 1846, Ch., 102, %9,%—Comp. L., §4326— 
 upon bringing an action upon a lost promissory note, should run to all 
 of the defendants, even though some of them have not been served with 
 process. Biggins v. Watson, 1 Mich., 428. 
 
 472. Indemnity : right of ofBcer to. A sherilf before levy- 
 ing a writ of attachment upon property of the title to which there is 
 reasonable doubt, has a right to require a bond of indemnity, and to re- 
 fuse to execute the writ by seizure of such property until the bond is 
 given. Smith v. Oicotte, 11 Mich., 388. 
 
 473. If the sheriff seizes the property on promise of bond of indem- 
 nity by the creditor, which the latter afterwards fails to give, and the 
 
 58 
 
BOUKTT. § 480 
 
 property is then taken away by the adverse claimant, the sheriff 
 may make return to the writ setting forth these facts, and he will be 
 protected. lUd. 
 
 BOUNTY. 
 
 474. Vested right in. Where a bounty offered under a law of 
 the State is actually earned, the reduction of the bounty by a subse- 
 quent amendment of the law, does not deprive the party who has earn- 
 ed it of the full bounty given by the original act. Peoj^e v. State Audit- 
 ors, 9 Mich., 337. 
 
 475. To volunteers: discrimination. Under the act of 
 March 6, 1863 (S. L.. p. 60), authorizing the payment of a State bounty 
 to volunteers in the military service of the United States, when the 
 State authorities had offered a bounty they had no right to discriminate 
 between the various classes of volunteers who came within the terms of 
 the offer. A man drafted for nine months, and then allowed to volun- 
 teer for three years, was entitled to the bounty. People v. Quarterma.^- 
 ter-Generai, 12 Mich., 191. 
 
 476. But the State authorities had the right to discriminate in making 
 the offer. And as the " State Guard," so called, did not come within the 
 terms of the offer actually made, they were not entitled to the bounty. 
 People V. Quartermaster- General, 14 Mich. 
 
 477. Act No. 23 of 1864 (S. L., p. 53) authorizing the payment of 
 bounties to volunteers from this State in the military service of the 
 United States, wa^ designed to distinguish between volunteers under 
 the President's call of October 17, 1863, and those enlisting under the 
 call of February 1, 1864, and to provide a bounty for the latter only. 
 Peo^v. Quartermaster- General, 13 Mich., 247. 
 
 47S. And where one enlisted March 12, 1864, and was credited to a 
 town whose quota under the call of October 17 was not full, he was 
 held not entitled to the bounty under said act. Idid. 
 
 479. Township action legalized. The act of March 7th, 
 1863, " to legalize the action of townships, &c., in raising bounties for 
 volunteers," (S. L., p. 92) extended to and made valid a tax voted at a 
 meeting of the electors of a township held for the purpose of raising 
 bounties, although such meeting was not convened in the manner re- 
 quired by the statutes relative to special township meetings. Crittenden 
 V. Robertson, 13 Mich., 58. 
 
 4§0. The act of 1865 to legalize the action of the several townships, 
 &c., in the county of Jackson in paying bounties to volunteers, and to 
 refund money to pay bounties, (S. L., p. 477), cannot properly be ex- 
 tended to cover any advances of money made by individuals on their 
 
 59 
 
CARRIERS OF GOODS. 
 
 own account, and not on the credit or by the authority of the munici- 
 palities. MiUer v. Oranby, 13 Mich., 540. 
 
 481. Where, by special act, the question is allowed to be submitted 
 to the voters of a township whether a certain class of payments and 
 advances for bounties, &c., shall be refunded, the vote taken is void if 
 it is so broad as to include other advances and claims not embraced by 
 the special act. People v. Township Board of WoodhvM, 14 Mich. 
 
 BREACH OF PROMISE TO MARRY. 
 
 482. Capacity to contract presumed. In an action for 
 breach of promise to marry, it is not necessary for the plaintiff to prove 
 that defendant was of full age when the contract was made. Bimmons v. 
 Simmons, 8 Mich., 318. 
 
 483. Ag;gravating circumstances. In such action it is not 
 error to allow proof that defendant borrowed money of plaintiff, and re- 
 newed his notes therefor immediately before marrying another ; as it is 
 important for the jury to understand as fully as possible the mutual 
 conduct of the parties during the existence of the contract, as well as the 
 causes and circumstances attending the breaking off of the engagement. 
 IMd. 
 
 484. Excuse for bre?cli. Proof of the frequent intermarriage 
 of the ancestors of the parties — who are cousins — and of the evil tendency 
 of the marriage of relations in producing deformed or sickly and imbe- 
 cile children, is incompetent where the contract was iot broken on any 
 such ground. Ibid. 
 
 CARRIERS OP GOODS. 
 
 485. Inland navigation : exemption ft-om liability by 
 act of Congress. The navigation of the great American lakes and 
 their connecting waters, is not " inland navigation" within the meaning 
 of the act of Congress entitled " An act to limit the liability of ship-own- 
 ers, and for other purposes," approved March 3, 1851. And therefore, 
 where goods were intrusted to a common carrier, to be transported from 
 New York to Detroit, by way of Lake Erie and the Detroit Riyer, and 
 while upon the steamboat of the carrier, in the harbor of Buffalo, in the 
 course of transit, were destroyed by fire, without any negligence or fault 
 on the part of the carrier or his agents, the carrier was held not liable 
 to the owner for the loss. American Transportation Co. v. Moore, 5Mich., 
 368. Affirmed by Supreme Court of United States. See 24 Sow., 1. 
 
 486. Limitation of common law liability. Although it 
 
 60 
 
CARRIERS OF GOODS. § 492 
 
 devolves upon a common carrier to show affirmatively the terms of any 
 contract which lessens his common law liability, yet the fact is to be 
 proved like any other, by any pertinent evidence. If in writing, the 
 writing mtist be shown ; but if by parol, there is no rule which requires 
 any different proof from that which would establish any other contract. 
 The jury must be satisfied from the evidence that a certain contract ex- 
 ists; and if satisfied, that is sufficient. Ihid. 
 
 48?'. A common carrier cannot limit his common law liability by a 
 mere notice indorsed ui^on the receipt given the consignor, or otherwise 
 brought to the consignor's notice. The assent of the latter to the limita- 
 tion is necessary, and must be proved by evidence aliunde : it cannot 
 be presumed from the tenns of the receipt alone, or be implied from the 
 posting of notices or the delivery thereof to the consignor. Michigan 
 Oentral B. R. Co. v. Hale, 6 Mich., 243. 
 
 488. A common carrier has no power to restrict, in any way, his 
 common law liability, but is bound to transport the property intrusted 
 to him under this liability, if it be not waived or changed by contract. 
 But he may make any contract with an individual relative to the trans- 
 portation of his property which the latter may deem conducive to his 
 interest, and enter into upon a consideration satisfactory to himself, 
 though a diminution of the carrier's common law liability results there- 
 from. Ibid. 
 
 489. A corporation which is made a common carrier by its charter, 
 and required to " transport merchandise and property without showing 
 partiality or favor," has the same power to contract for a limitation of 
 its liability as any other carrier, and no consideration of public policy is 
 contravened by the exercise of such power. Ibid. This case overrules 
 Michigan Central B. B. Go. v. Ward, 2 Mich., 538. 
 
 490. Carriers seeking to modify their contracts by regulations and 
 customs of their own, must show that both parties acted in reference to 
 them. Moore v. Michigan Oentral B. B. Co., 3 Mich., 23. 
 
 491. Usage defining terms. Where the question between the 
 owner of marble slabs and the carrier is whether they are to be classed 
 as "wrought" or "unwrought" marble, the owner may show what 
 meaning is given to those terms by custom and usage. The custom, in 
 order to bind the carrier, need not be universal, settled or uniform 
 among carriers or dealers, but the generally prevailing usage among 
 them will govern. Bancroft v. Peters, 4 Mich., 619. 
 
 492. liiability for goods in Airarehou§e. A railroad com- 
 pany are not liable as common carriers for property deposited in their 
 warehouse, to await orders from the owner for its transportation. 
 Michigan Southern and Northern Indiana B. B. Co. v. Shurtz., 7 Mich., 
 515. 
 
 61 
 
S 498 CARRIERS OF GOOBS. 
 
 493. And where the company are prohibited by their charter from 
 charging as warehousemen for storage, they are liable for property so 
 deposited as gratuitous bailees only. Ibid. 
 
 494. The Michigan Central Railroad Company, under their charter, 
 are liable only as warehousemen, and not as common carriers, for goods 
 transported by the company, and which have arrived at their place of 
 consignment and been deposited in the company's warehouse according 
 to the usual course of business. Michigan Central B. S. Co. v. Sale, 6 
 Mich., 343, overruling Michigan Central S. B. Co. v. Ward, 3 Mich., 538, 
 which held the company liable as carriers until the consignee had been 
 notified of the receipt of the property, and had had a reasonable time to 
 remove it. 
 
 495. What necessary to give lien for freight. A com- 
 mon carrier is bound to receive and carry goods only when offered for 
 carriage by their owner or authorized agent ; and then only upon pay- 
 ment of freight in advance, if required. If he obtains possession of 
 goods wrongfully, or without the consent of the owner, express or im- 
 plied, and, on demand, refuses to deliver them to the owner, such own- 
 er may bring replevin for the goods, or trover for their value. Fitch » 
 Newber^-y, 1 Doug., 1. 
 
 496. To justify a lien upon goods for their freight, the relation of 
 debtor and creditor must exist between their owner and the carrier, so 
 that an action at law might be maintained for the payment of the debt 
 for which the lien-is claimed. Ibid. 
 
 497. Accordingly where plaintiff had shipped goods by carriers 
 under a spepial contract, and during their transit they came into the 
 possession of other carriers without his assent, and were delivered to 
 the defendants, who were warehousemen, and who advanced charges 
 thereon in igporance of the manner in which the last mentioned carriers 
 had come to possession, it was held that the defendants had no lien on 
 the goods for their advances and charges, and plaintiff was entitled to the 
 possession of the goods without payment thereof Ibid. 
 
 49§. Construction of dray ticket. The agent of the O. & 
 P. Railroad Co., on receipt of goods to be forwarded, gave a dray ticket 
 signed by himself, in the following form : " Pittsburgh, Nov. 1, 1864. 
 To O. & P. R. R. Rec'd of F. Bros, in good order, [certain goods de- 
 scribed] for M. I. M. & Co., Detroit. To Mansfield." A shipping bill 
 was also given at the same time, specifying Mansfield as the place for 
 delivery of the goods. Held, that this dray ticket, standing by itself, 
 was not evidence of an obligation on the part of the railroad company 
 to convey the goods to Detroit, but, under the circumstances, evidenced 
 only an obligation to keep the goods safely, and re-deliver them or ac- 
 count for their value. Fleming v. Milla, 5 Mich.,. 420. 
 62 
 
CARRIERS OF PERSONS. § 506 
 
 499. Departure from contract. Where a transportation 
 company undertook to forward goods from New York to Detroit, " by 
 aail on the lake," all dangers of the lake, &c., to be at the risk of the 
 owner, it was held that the contract was restrictive as to the mode of 
 transportation ; and the company having departed from it, by shipping 
 the goods by steam instead of by sail, and the goods having been lost 
 on the lake, the company were liable to the owners for their value. 
 Merrick xi. Webster, 3 Mich., 368. 
 
 500. Recoupment of damages from freight. Where 
 suit is brought for the recovery of freight, the defendant may recoup by 
 showing damage to the property while being carried. But if he does 
 80, and his damages exceed the amount of the freight, he cannot have 
 judgment against the plaintiff for the balance. Wa/rd v. Fellers, 3 Mich., 
 381. 
 
 501. Where one replevied his goods from a carrier who claimed the 
 right to retain them until the freight was paid, it was held competent 
 for plaintiff to prove damages to them in their transit, and thus reduce 
 the amount of freight actually due, or to show that nothing was due. 
 Bancroft v. Peters, 4 MTch., 619; ' 
 
 CARRIERS OF PERSONS. 
 
 502. Suit against : Payment of fare. In declaring against 
 a common carrier of passengers for a refusal to carry, it is necessary to 
 aver that the plaintiff offered, or was ready and willing, to pay the fare. 
 Day V. Owen, 5 Mich., 520. 
 
 503. Carriers' rules as to accommodation. The right to 
 be earned by a common carrier of passengers, is a right superior to the 
 rules and regulations of the conveyance, and it cannot be affected by 
 them ; but the accommiodation of passengers, while being transported, is 
 subject to such rules and regulations as the carrier may think proper to 
 make, provided they be reasonable. Ibid. 
 
 504. Such rules and regulations must have for their object the 
 accommodation of passengers generally ; and they must be of a perma- 
 nent nature, and not made for a particular occasion or emergency. 
 Ibid. 
 
 505. It is sufficient in pleading to state the rule or regulation ; that 
 plaintiff comes within it, and aver its reasonableness. The facts upon 
 which the party relies to establish its reasonableness, need not be spread 
 upon the record. lUd. 
 
 506. Action against a common carrier of passengers by steamboat 
 for reftsing plaintiff a cabin passage. Notice of defense that, by the 
 
 63 
 
§ 511 CERTIORARI. 
 
 regulations and established course of business of the boat, persons of 
 plaintiff's race are not allowed the use of the cabin as passengers; 
 which regulation and course of business are averred to be reasonable. 
 Demurrer to the notice. Held, that the reasonableness of such a regu- 
 lation was a mixed question of law and fact, to be found by the jury on 
 the trial, under the instructions of the Court ; and could not be deter- 
 mined on demurrer. lUd. 
 
 507. Suit for lost baggage. The plaintiff, intending to take 
 passage on the steamboat of defendants, deposited his trunk on board in 
 the usual place for baggage, but without putting it in charge of any 
 person, or notifying any one employed on the boat of such deposit, or 
 of his intention to take passage ; and while temporarily absent from the 
 boat, she started on her trip, and he was left. The trunk could not 
 afterwards be found. Held, that there was not a constructive delivery 
 and acceptance of the trunk as the baggage of a passenger, by which 
 the defendants could be held chargeable for its loss. Wright v. OaldioeU, 
 3 Mich., 51. 
 
 508. The declaration against the carrier must aver a consideration 
 paid, or agreed to be paid, for the transportation of the trunk and its 
 contents ; and the averment must be supported by proof. Ibid. 
 
 CERTIORARI. 
 
 1. At the Common Law. 
 
 509. 'When it lies. Proceedings were had in the County Court 
 under the Bastardy Act, which were removed to the Supreme Court by 
 writ of certiorari. On motion being made to dismiss the writ, on the 
 ground that, by the statute, the judgments of the County Court might 
 be removed to the Circuit Court by certiorari, it was held that the stat- 
 ute did not apply to this special proceeding ; and there being no other 
 remedy, a certiorari from the Supreme Court would lie at the common 
 law. Perkins v. Superintendents of the Poor of Lcupeer County, 1 Mich., 
 504. See also Warner v. Porter, 2 Doug., 358 ; Gross v. People, 10 Mich., 
 35. 
 
 510. Where proceedings under the statutes of 1838 were had before 
 a justice, to determine whether a mill pond was unhealthy, &c., and the 
 proceeding was only preliminary in its character, to lay the foundation 
 of an action, and the justice did not act judicially in it, it was held that 
 it could not be reviewed on common law certiorari. Root ii. Barnes, 1 
 Mich., 37. 
 
 511. Where in an attachment case the Circuit Court allowed a new 
 affidavit to be made and filed in the place of the original one, which 
 
 64 
 
CERTIORARI. § 517 
 
 was void, and the defendant moved in tlie Supreme Court for a man- 
 damus to correct this action, it was held that he had mistaken his 
 remedy, and that it should be by certiorari. People v. Jiidges of Branch 
 9ircmt Court, 1 Doug., 319. 
 
 511a. Certiorari will lie to review an order of the Circuit Court 
 directing execution to issue on a transcript of a justice's judgment. Je- 
 rome «. Williams, 13 Mich., 521. 
 
 513. 'Sot tin after judgment given. Sixty days having 
 expired after the making of an order by the Probate Court, without 
 appeal being taken therefrom, the .Circuit Court granted a party leave 
 to appeal with the same effect as if it had been done seasonably. Cer- 
 tiorari was sued out to remove to the Supreme Court the order of the 
 Circuit Court allowing this appeal. Held, that until after the adjudica- 
 tion upon the appeal by the Circuit Court, the proceedings could not be 
 reviewed by the Supreme Court ; and the writ was dismissed. -Pahns n. 
 Oampau, 11 Mich., 109. 
 
 513. The writ is not of right, but rests in the sound discre- 
 tion of the Court, to be allowed or not, as may best promote the ends of 
 justice. And the statutory provisions requiring the writ to be issued 
 within two years, and providing for its allowance out of Court, do not 
 take away the discretionary power of the Court. Matter of Lantis, 9 
 Mich., 334 ; Fmrea v. Taylor, 13 Mich., 113. 
 
 514. Where an appeal can be had, by which jurisdictional questions 
 can be brought up, the writ should not be allowed unless circumstances 
 exist which show that a failure of justice will result from denying it. 
 Farrdl v. Taylor, 13 Mich., 113. 
 
 515. Laches in suing out. Where proceedings were had for 
 the draining of swamps, &c., under the act of 1857, and the report of the 
 commissioners was confirmed by the Circuit Court, and eleven months 
 thereafter parties who had appeared in the Circuit Court and opposed 
 the confirmation, sued out a certiorari to remove the proceedings to the 
 Supreme Court, the writ was quashed for the laches of the parties in 
 not suing it out sooner. Matter of Lantis, 9 Mich., 334. 
 
 516. ILaehes in moving to dismiss. An order of the Pro- 
 bate Court requiring an administrator to account, having been brought 
 into the Circuit Court by appeal, and there reversed, and the proceed- 
 ings in the Circuit Court — ^where no issue of fact was joined— being 
 then moved to the Supreme Court by certiorari, that Court refused to 
 consider an objection that this was not a proper case for certiorari, made 
 for the first time in a brief submitted by defendant in error after the 
 hearing on the merits. Matter of Robinson estate, 6 Mich., 137. 
 
 517. Evidence to be returned on. The return to a com- 
 mon law certiorari should set out the evidence upon which the convic- 
 
 5 65 
 
§ 534 CERTIOEARI. 
 
 tion or other judicial act complained of was founded. Jaokson ». People, 
 9 Mich., 111. 
 
 51§. But not to toe 'weigbed. The office of a certiorari is 
 not to review questions of fact, but questions of law. And in exami# 
 ing into the evidence, the appellate Court does so, not to determine 
 whether the probahilities preponderate one way or the other, but simply 
 to determine whether the evidence is such that it wUl justify the find- 
 ing as a legitimate inference from the facts proved, whether that infer- 
 ence would or would not have been drawn by the appellate Court. 
 lUd. See also Higley ». Lant, 3 Mich., 613 ; Hyde v. Ndson, 11^ Mich., 
 353 ; Oieotte v. Morse, S.Mich., 424; Bei-ry v. Loice, 10 Mich., 9. 
 
 519. But tte appellate Court will review the rulings of law upon the 
 admission or exclusion of evidence, or other rulings in the proceedings 
 having a bearing upon the result. Ihid. 
 
 520 Wlio to return the evidence. On certiorari to the 
 Recorder's Court of Detroit, to I'emove the proceedings on conviction 
 for a violation of a city ordinance, it was held that the. evidence was 
 properly returned by the clerk of the Court. Jaclcson v. People, 9 Mich., 
 111. 
 
 521. Fee§ for return. On a certiorari to a township board in 
 a highway case, the township clerk, under Comp. L., § 5643, is entitled 
 to fees, and cannot be compelled to make return until the fees are paid. 
 People v. Township Board of Springwdls, 13 Mich., 346. 
 
 522. Misdirection. Where commissioners of highways laid out 
 and established a road, and an appeal was taken from their decision, 
 which afflnned what the commissioners had done, a certiorari sued out 
 for the purpose of reviewing the decision of the township board, di- 
 rected to the commissioners, instead of to the township board, was dis- 
 missed for the misdirection. Goodrich v. Commissioners of Highways of 
 Lima, 1 Mich., 385. And see French v. Highway Commissioners of 
 Springwdls, 12 Mich., 267. 
 
 3. To County Couiits by Statute. 
 
 523. Where a cause was removed from the County Court to the Cir- 
 cuit Court by certiorari, it was held that neither the Circuit Court, nor 
 the Supreme Court on writ of error, could review the case on conflicting 
 testimony, but for errors of law only. Higley v. Lant, 3 Mich., 613. 
 See Herring v. Hock, 1 Mich., 501, and the criticism thereon in Berry v. 
 Lowe, 10 Mich., 9. 
 
 524. Where the return did not show that the whole of the testimony 
 was returned, it was held that it was to be presiuned that there was evi- 
 
 66 
 
CERTIOKARI. §533 
 
 deuce in the Court below to sustain the iinding. Snow 11. Perkins, 2 
 Mich., 238. 
 
 525. The case having been brought into the County Court by certi- 
 orari to a justice, and afterwards removed by certiorari to tlie Supreine 
 Court, it was held that the plaintilT in error could not assign in the Su- 
 preme Court errors not pointed out in the Court below, and which might 
 perhaps have been there obviated. Lee v. Hardrjmee, 3 Mich,, 77. 
 
 526. A judgment in the County Court rendered upon proofs and a 
 Bubmission of the cause, was a final judgment, though the judge speak 
 of it in his return to the certiorari as a nonsuit. Ibid, 
 
 527. An order dismissing an appeal was such a judgment as might 
 be reviewed by the Circuit Court on certiorari, under the act of 1849. 
 People V. Judge of Wayne Oounty Covri,, 1 Mich., 359. 
 
 528. Under said act of 1849 the Circuit Court, in its discretion, on re- 
 versing a judgment of the County Court, might award anew trial. Her- 
 ring V. Hock, 1 Mich., 501. 
 
 3. To Justices Couets by Statute. 
 
 529. In specia! proceedings. The general statute aHowing 
 this wiit does not apply to the case of a judgment rendered by a justice 
 in a summary proceeding by complaint, under village by-laws, for ne- 
 glect to perform highway labor. Warner v. Porter, 2 Doug., 358, 
 
 530. Where appeal is given. Nor to a case under the Prohi- 
 bitory Liquor Law, where an appeal is the remedy given. Peofie v. Far- 
 well, 4 Mich., 556. 
 
 531. Papers to toe fiied before 'writ issnes.. Before the 
 writ issues the affidavit to procure the allowance thereof, and the allow- 
 ance of the same indorsed thereon, must be filed with, the clerk of the 
 Circuit Court ; and if the writ is issued before such affidavit and allow- 
 ance are filed, the cause will be dismissed for want of juiisdietion. People 
 0. Judges of Oasa Circuit Court, 2 Doug., 116. See Comp. L., §3874. 
 
 532. Service of tlie "writ on Sunday is void under the sta- 
 tute prohibiting labor, &c., on that day. Comp. L., Ch. 44. Anderson 1). 
 Birce, 3 Mich., 280. 
 
 533. Assigmments of error. In an affidavit for a certiorari, 
 errors were alleged : 1st, That the justice erred., in refusing to dismiss 
 the cause for defective service of process. 2d, That the Court erred in 
 rendering judgment in favor of plaintiff against defendant. 3d, That 
 the judgment should have been rendered in favor of defendant. Held 
 that the second and third allegations of error were not sufficiently spe- 
 cific to raise any question on the merits, and must be understood as re- 
 
 67 
 
§ 539 CERTIORABI. 
 
 ferring only to the decision of the justice on the motion to dismiss. 
 Fowler v. Detroit and Milwaukee Baihoay Go., 7 Mich., 79. 
 
 534. An assignment of error, that there was no evidence to sustain 
 the verdict and judgment, is too general to he noticed. [Manotng, J.] 
 Wdch V. Bagg, 12 Mich., 41. 
 
 533. Presnmption in favor of judgment. It vrill he pre- 
 sumed that there was evidence to sustain the finding though none ap- 
 pears, unless the return expressly shows that the whole of the testimony 
 in the case is returned. Gaines v. Belts, 2 Doug., 98. And see Snow «. 
 Perkins, 3 Mich., 338. 
 
 536. Where the justice certified as follows : " I do certify the follow- 
 ing to have been the evidence before me in the above entitled cause :" 
 and the objection taken before him was that certain necessary facts had 
 not been proved, it was held that it must be presumed that the whole 
 evidence was returned. Oicotte v. Morse, 8 Mich., 434. 
 
 537. Facts not to be reviewed. On certiorari, if the error 
 alleged is a total want of evidence to prove some fact necessary to sus- 
 tain the judgment, the Circuit Court should look into the testimony to 
 see whether there was such evidence or not. If there was, it should 
 not weight it, or inquire into its sufficiency ; but affirm the judgment. 
 If the return shows no such evidence, and it appears that all the testi- 
 
 » mony before the justice has been returned, the judgment should be re- 
 versed on the ground that the justice erred, in law, in rendering the 
 judgment he did without such evidence. Berr;/ v. Lowe, 10 Mich., 9. 
 See also Gaines i). Betts, 3 Doug., 98 ; Sigley v. Lant, 3 Mich., 613 ; Oi- 
 cotte V. Morse, 8 Mich., 434 ; Byde v. Ndson, 11 Mich., 353 ; Wdch v. 
 Bagg, 13 Mich., 41. The dictum to the contrary in Elliott «. WMtmore, 
 5 Mich., 532, corrected, 10 Mich., 13. 
 
 535. Costs. Eeplevin in Justice's Court. The Court found a part 
 of the property to be in the plaintifi', and gave him judgment therefor, 
 with costs, and awarded a return of the remainder. On certiorari, the 
 Circuit Court reversed the judgment as to a part of the articles awarded 
 to the plaintifi; and gave judgment therefor to the defendant, and also 
 rendered judgment in favor of the defendant (plaintiff' in error) for his 
 costs before the justice. Held that this judgment for costs, not being an 
 affirmance or reversal of the justice's judgment or any part thereof, was 
 beyond the power of the Circuit Court. Berry v. Lowe, 10 Mich., 9. 
 
 539. Further return In Supreme Court. Where a writ of 
 error brings before the Supreme Court the record of the Circuit Court, 
 in a case brought before that Court by certiorari to a justice, the Su- 
 preme Court has no power to require a further return of the justice to 
 the certiorari. Wight v. Wavner, 1 Doug., 384. 
 
COLLISION OF VESSELS. § 547 
 
 CIRCTJIT COURT COMMISSIONERS. 
 
 540. Power to take bail. Circuit Judges have power, inde- 
 pendent of statutory provisions, to take bail in criminal cases at cham- 
 bers; and the Legislature, under §16 of art. vi. of the constitution, 
 may confer the same power upon circuit court commissioners, even if the 
 power to take bail was a judicial power within the meaning of §1 of the 
 same article, conferring the judicial power of the State upon certain 
 specified Courts. Daniels v. People, 6 Mich., 381. But the power is not 
 a judicial power within the meaning of that clause. Ibid. 
 
 541. — to try tax titles. The provision in the tax law of 1858, 
 which attempts to confer upon circuit court commissioners the power 
 to adjudicate upon tax titles, is unconstitutional and void. WaMby 
 V. Oallendar, 8 Mich., 430. 
 
 542.— to try forcible entries, &c. The statute— Comp. L., 
 Oh. 150 — empowering circuit court commissioners to entertain sum- 
 mary proceedings to recover possession of lands, is not unconstitutional. 
 Streeter v. Paton, 7 Mich., 341. 
 
 543. — to dissolve attachments. The act conferring upon 
 circuit court commissioners the authority to dissolve attachments — 
 OoTn/p. L., p. 1375 — does not give powers beyond those which may be 
 properly exercised by a Circuit Judge at chambers, and therefore is not 
 unconstitutional. Edga/rton v. Hinchman, 7 Mich., 353. 
 
 CIRCUIT JUDGES. 
 
 544. In new circuits. The terms of the Circuit Judges and 
 Regents of the University, elected in the ninth and tenth judicial cir- 
 cuits, under the act of January 39, 1858 (S. L., p. 14), commenced as 
 soon as they had been duly declared elected. People v. Q-arloeh, 5 Mich., 
 284. 
 
 COLLISION OF VESSELS. 
 
 545. In cases of collision, the burden of proof is on the plaintiff, not 
 only to show negligence on the part of defendant, but ordinary care on 
 his own part. Drew v Steamboat Chesapealce, 2 Doug., 33. 
 
 546. A general custom of navigation, like that for vessels to pass 
 each other to the left, may be proved by the testimony of persons skilled 
 in navigation. Ibid. 
 
 547. Such custom is a part of the law of the land ; and a departure 
 from it occasioning collision will render the party liable, unless the other 
 party, by reasonable effort, might have prevented it ; and each party 
 
 69 
 
§ 555 COMPEOMISE OP CLAIMS. 
 
 should act upon the presumption that the other will adhere to the cus- 
 tom. lUd. 
 
 COMITY BETWEEN" STATES. 
 
 548. A party to a suit in another state cannot he com- 
 mitted in this State, for refusing to give his evidence under commission. 
 The statute — Comp. L., §4295 — applies to general witnesses only. Mat- 
 ter of Adams, 7 Mich., 452. [The decision was before parties were made 
 witnesses generally in this State]. 
 
 549. A foreign corporation will not have the aid of our Courts 
 in enforcing a contract entered into in violation of its charter. Orr ». 
 Zac«2/, 3 Doug., 330. 
 
 550. A snit In a court of a sister state, or in one of the Fed- 
 eral Courts, previously commenced, will not be enjoined by the Court 
 of Chancery. GarroU v. Farmers and Meelianics' Bank, Har., Ch. 197. 
 
 COMMISSIONERS OF INTERNAL IMPROVEMENT. 
 
 551. Control of streets. The Commissioners of Internal Im- 
 provement had no right, under the general powers conferred upon 
 them, to appropriate a portion of a street in the city of Detroit for the 
 purpose of the erection of oflBces and other buildings thereon. Cooper 
 V. Alden, Har. Ch., 73. 
 
 COMMON LAW. 
 
 552. In force. The common law is in force in Michigan, except 
 so far as it is repugnant to, or inconsistent with, our constitution and 
 statutes. Stontv. Keyes,'i'Doug., 184. 
 
 553. Questions of right not clearly exceiJted from it must be deter- 
 mined by the common law, modified only by such circumstances as 
 make it inapplicable to our local affairs. Lorman v. Benson, 8 Mich., 18. 
 
 COMPROMISE OF CLAIMS. 
 
 554. l¥I»en Yalid. A bona fide claim, with a color of right, 
 although there be in fact no right, so long as the party asserting it does 
 not know ho has no right, and acts in good faith, is sufficient to sustain 
 a compromise. Gates v. Sladts, 7 Mich., 137. 
 
 555. Defendant charged complainant with intentionally burning his 
 own mill, and claimed payraent for wheat belonging to defendant which 
 was destroyed with the mill, and complainant gave his note and mort- 
 
 70 
 
CONDITIONS. § 561 
 
 gage for the value of tlie wheat. On hill filed by complainant to set 
 aside these securities as obtained through threats, fear and duress, it is 
 not necessary for the Court either to find that complainant burned his 
 mill or to grant the relief asked; for the settlement must stand if there 
 was no fraud or undue advantage taken to bring it about, and defendant 
 had reason to believe the charge, and did not manufacture it to frighten 
 complainant into a settlement. Ibid. 
 
 556. Disafflrinance for fraud. Where a creditor is induced, 
 by the fraudulent representations of his debtor, to compromise, and re- 
 ceives part of his demand, he cannot, on discovery of the fraud, retain 
 the sum paid, and sue in assumpsit for the balance ; but he may retain 
 the paymenl, and maintain an action on the case for damages sustained 
 by the fraud. JofHt v. PHlt, 4 Mich., 508. 
 
 557. Sale of compromise note. Where a party received a 
 note from his debtor, with collateral security, agreeing that, if paid when 
 due, the original debt should be discharged, otherwise of force ; and 
 after^the compromise note became over due, sold and transferred it, with 
 the collaterals and the original debt, it was hold, that he thereby affirmed 
 the compromise, and tliat the purchaser could not claim the amount of the 
 original debt on the ground of forfeiture of the compromise agreement be- 
 fore he piirchased. Hcile i>. Hulmen, 8 Mich., 37. 
 
 558. Andthe collateral security beingthc note of the purchaser, which 
 became due before the compromise note did, and was relied upon by the 
 debtor to pay the compromise note ; it was held that the purchase must 
 be regarded as a payment of the compromise note by the note of the 
 purchaser; and that the purchaser hadno claim, at law or in equity, upon 
 the original debt. Ibid. 
 
 559. Unaccepted offers by way of compromise, whether liberal 
 or not, cannot affect the legal rights of parties. OlmMler e. Allison, 10 
 Mich., 460. 
 
 CONDITIONS. 
 
 560. Xlxtension. Where time has been extended for the perform- 
 ance of conditions, a party seeking to avail himself of the extension must 
 aver a readiness to perform within the time as extended, and notice there- 
 of Troiohridge v. Haiieslon, Wal. Ch., 185. 
 
 561. Condition snlbsequent. A bank being indebted to the 
 State, conveyed to th€ State in satisfaction of such indebtedness certain 
 real and personal property. In the agreement for the conveyance of the 
 property between the bank and the commissioners appointed by the 
 State to settle with the bank, it was declared that the assignment of the 
 property was made upon, and subject to, the express condition, that 
 
 71 
 
CONDITIONS. 
 
 the State should indenmify and save harmless the bank from and against 
 certain claims and liahihties therein mentioned. This was a conveyance 
 upon condition subsequent, and the property would revert to the bank 
 upon failure of the State to perform the condition. Michigan State Bank 
 V. Hastings, 1 Doug., 235, overruling on this point, Hammond v. Michigan 
 State Bank, Wal. Ch., 314. 
 
 562. There could be no breach of the condition until the bank was 
 actually damnified, and an allegation that the State had not paid a bond 
 and mortgage of the bank, which was one of the liabilities mentioned in 
 the condition, but had permitted the same to be foreclosed, and the mort- 
 gaged premises to be sold at a great sacrifice, and that it had refused to 
 pay off and satisfy the balance still due on said bond, for which the bank 
 had been threatened with a suit, would not show such damnification. 
 Ibid. 
 
 563. Treating the condition as a covenant to indemnify, the bank 
 would not, upon an allegation of these facts as a breach of the covenant, 
 be entitled to an equitable lien upon the property for the payment of the 
 liabilities mentioned in the covenant. Ibid. 
 
 564. ACourtof equity would not enforce spectflc performance of the 
 covenant before the bank had been actually damnified ; nor even after- 
 wards, as this could only be done in a proceeding directly against the 
 State, which could not be made defendant to a suit. Ibid. 
 
 565. Quere, whether such a condition could be treated as a covenant 
 to indemnify. lUd. 
 
 566. Acceptance of conditions. After the execution of the 
 agreement between the bank and the commissioners, the State took pos- 
 session of the property conveyed, and exercised acts of ownership over 
 it. The Legislature subsequently passed an act, constituting certain 
 State oflBcers trustees on behalf of the State, to take charge of the pro- 
 perty, empowering them to dispose of it, requiring the proceeds to be 
 paid into the State treasury and used for the redemption of State script, 
 and expressly sanctioning the agreement, except so much thereof as pur- 
 ported to bind the State to indemnify the bank, or to pay or advance 
 money to discharge incumbrances or for any other purposes, which por- 
 tions were thereby expressly rejected. Hdd, that, the State had not 
 the power to hold the property conveyed, and at the same time re- 
 ject the condition upon which the conveyance was made ; and that so 
 much of the act as purported to do so was void. Ibid. 
 
 567. The declaration in the act that the State rejected the condition 
 did not, in itself, constitute a breach. Ibid. 
 
 56§. By acting upon the agreement between the bank and the com- 
 missioners, by exercising acts of ownership over the property conveyed , 
 and also by said legislative act, the State had recognized and affirmed 
 73 
 
CONFLICT OP LAWS. § 574 
 
 the act of the commissioners in making the agreement, whether the com- 
 missioners originally had power to agree to the condition therein con- 
 tained or not. Ihid. 
 
 CONFLICT OF LAWS. 
 
 569. Foreign law presumed like onrs. Where suit is 
 brought upon a foreign contract, and no proof is made in regard to the 
 foreign law, the Court will test the validity of the contract by the laws 
 of this State. Jones v. Paliner, 1 Doug., 379. And see High, Appdlcmi, 
 3 Doug., 515 ; Crane v. B<wdy, 1 Mich., 56. 
 
 570. Interest. But the rates of interest being established by sta- 
 tute in this State, it is not a presumption of law that the rate in a 
 foreign country is the same. Ko presumption can arise that foreign 
 countries have adopted our local statutes. Kermott v. Ayer, 11 Mich., 
 181. See People i). Lambert, 5 Mich., 349. 
 
 571. liex loci of eontraets. The law of the place where a note 
 is made payable determines the time and mode of presentment, and of 
 proceedings on non payment ; but the notice to the indorser must be 
 according to the law of the place where the indorsement was made. 
 Snow 1). Perkins, 2 Mich., 338. See Orr v. Laoey, 2 Doug., 280 ; Collins 
 Iron Co. V. Burkham, 10 Mich., 283. 
 
 5'S'2. Where authority was given in New York for drawing in Illinois 
 bills of exchange payable in New York, it was held that the law of New 
 York controlled the obligations of the persons giving such authority. 
 Bissell 1). Lewis, 4 Mich., 450. 
 
 573. Remedies. A law of New York, which would enable a ven- 
 dor, of whom goods had been purchased fraudulently on credit, to main- 
 tain assumpsit for the price of the goods before the credit had expired, 
 would be a law affecting the remedy only, and would not apply so as to 
 enable the vendor to maintain a similar action in this State for the price 
 of goods sold in New York. QaUoway v. Holmes, 1 Doug., 330. See 
 further as to foreign remedies, GoUins Iron Co. v. Burkham, 10 Mich., 283. 
 
 574. Recording la'ws. Laws for recording chattel mortgages 
 can have no force beyond the jurisdiction of the sovereignty enacting 
 them. The record of a chattel mortgage in Canada is therefore no 
 notice to the creditors of the mortgagor who shall find the property 
 in his possession in Michigan. Montgomery v. Wight, 8 Mich., 143. 
 Where, therefore, a chattel mortgage given by a resident iof Can- 
 ada, was properly put upon record as required by the Canadian law, 
 but the mortgagor was left in possession of the mortgaged property 
 and brought the same into this State, where it was taken and sold on 
 
 73 
 
583 CONSIDERATION. 
 
 execution against the mortgagor, it was lieUl, tliat the title under the 
 execution sale must prevail over that under the mortgage. Ibid. 
 
 575. The statute providing that every mortgage of goods and chat- 
 tels shall be absolutely void as against the creditors of the mortgagor, 
 unless the mortgage shall be filed in the office of the township clerk 
 where the mortgagor resides, is void so far as relates to mortgages on 
 enrolled vessels, because in conflict with the law of Congress relating to 
 mortgages on such vessels. Robiiuon i> Biee, 3 Mich., 235. 
 
 576. Boat and vessel laivs. Proceedings under the boat and 
 vessel law of another State, which allows non-resident creditors no op- 
 portunity of appearing and asserting their claims, can have no extra 
 territorial force, and will not displace a prior lien existing upon a vessel 
 under the laws of this State. Wight v. Maxwell, 4 Mich., 45. 
 
 CONFUSION OF GOODS. 
 
 577, Whether a party guilty of a fraudulent admixture of saw logs 
 owned by himself with those owned by another, so that it is impossible 
 any longer to identify his own, thereby loses all interest in them, and 
 becomes remediless if such other person appropriates the whole mass to 
 his own use, quere. Steplwn^on v. Little^ 10 Mich., 433. 
 
 CONSIDERATION. 
 
 578. A seal imports a consideration ; and it is not necessary either 
 to aver or prove it where the agreement is under seal. Bye v. Mann, 11 
 Mich., 291. 
 
 579. Forbearance of suit. An agreement with defendant to 
 forbear suit against a third person, who was plaintiff's debtor, is a good 
 consideration for defendant's promise -to pay the debt. Bood v. Jones, 1 
 Doug., 188. 
 
 5§0. But the creditor's agreement to forbear seizing certain property 
 on attachment against his debtor, will not support a promise by a third 
 person to pay the debt, if at the time the debtor had no interest in the 
 property. Ilnd. 
 
 581. In a suit on a note given in consideration of such forbearance, 
 the onus is upon defendant to show that the debtor had, at the time, no 
 interest in the property. Ibid. 
 
 582. Compromise. The compromise and settlement of an as- 
 serted claim, involved in legal controversy, be it never so doubtful, 
 constitutes a sufficient consideration for the settlement, and for any 
 obligations given by one party to the other in consummation of it. Van 
 
 74 
 
CONSTITUTIONAL LAW. § 588 
 
 Byhe v. Davis, 3 Micli., 14-1 And see Weed d. l^n-y, Wal. Ch., 501 ; 
 ease, 2 Doug., 344; Oat-es ». Shutts, 7 Mich., 137; SaU v. Holmes, 8 
 Mich., 37. 
 
 583. But where a timid and ignorant man was induced, by threats 
 of a prosecution for slander, to assign a mortgage to another, tlie assign- 
 ment was lield to be without consideration, and a reassignment was 
 decreed. Tccte v. Whitney, Har. Ch., 145. 
 
 584. I^ost good§ found toy two jointly. While plaintifi's 
 tug boat was towing defendant's raft in St. Clair river, the tow-line 
 caught and raised from the river an anchor and chain, which were 
 secured by defendant and brought upon the raft. Held, that the parties 
 were joint finders of the property, and that the interest of the plaintiff 
 was a sufficient consideration for the agreement of the defendant to sell 
 it and divide the proceeds. Oummings v. Stone, 13 Mich., 70. 
 
 585. Stock in educational in§titntions. An incoporated 
 educational institution, upon the strength of subscriptions to its fund, 
 erected buildings and expended a large sum in furtherance of the objects 
 of its contributors ; after which a subscriber gave his note for his sub- 
 scription, and received therefor a certificate, entitling him, his heirs and 
 assigns, to an equal amount of "stock" in the institution, and also to 
 the free tuition forever of one student therein. Hdd, that there 
 was a sufficient consideration for the note. Wesleyan Seminary r. Fislier, 
 4 Mich., 515. See as to subscriptions to such institutions generally, 
 Underwood ii. Waldron, 13 Mich., 73^ 
 
 586. Several considerations. If one of several considera- 
 tions, which are the ground of a promise, is only frivolous and insuffi- 
 cient, but not illegal, and the others are good and sufficient, the former 
 shall be disregarded, and the latter will sustain the promise. Wesleyan 
 Seminary v. Fislier, 4 Mich., 515. 
 
 58'?. In§ufficient consideration. An agreement to pay the 
 assignor's funeral expenses, was held insufficient to support a transfer 
 of property to the amount of over $1,000, as against one to whom the 
 asMgnor owed a debt payable out of such property as he might die the 
 owner of Cicotte ii. Qagnier, 2 Mich., 381. 
 
 588. iSnaranty. It is not essential to the validity of a guaranty 
 that the consideration should be expressed therein ; but the actual con- 
 sideration being averred in the declaration, it may be proved by parol, 
 notwithstanding the guaranty is expressed to be " for value received." 
 Jones v. Palmer, 1 Doug., 379. 
 
 73 
 
§ 595 CONSTITUTIONAL LAW. 
 
 CONSTITUTIONAL LAW. 
 
 1. QirESTioNS TJndeb Constitution oi" the United States. 
 
 5§9. Liegal Tender Act. The act making treasury notes a 
 legal tender in payment of private debts, was within the legitimate 
 powers of Congress, and is valid. VcmHusan v. Kanouse, 13 Mich., 303. 
 
 590. Said act was not designed to confer a personal privilege upon 
 debtors, but was based upon reasons of State policy, which, in the opin- 
 ion of the law-making power, imperatively demanded that treasury 
 notes should be made equal in legal value to coin ; and parties have no 
 right to stipulate that their agreements shall not be governed by it. 
 And therefore, upon a note for the payment of a certain number of dol- 
 lars in gold, judgment cannot be rendered for a greater sum than the 
 amount specified and interest thereon, notwithstanding it is shown that 
 gold commands a premium in treasury notes. Buohegger v. Shidtz, 13 
 Mich., 430. 
 
 591. Commerce. The power of Congress to legislate on the lia- 
 bility of common carriers within the State, discussed. American Trans- 
 portation Co. V. Moore, 5 Mich., 368. 
 
 592. Insolvent laws. Defendant, a citizen of New York, made 
 a note in June, 1858, payable to the order of other citizens at a bank in 
 that State, four months after date. Before maturity the note was in- 
 dorsed, for a valuable consideration, to the plaintiffs, a Massachusetts 
 corporation. In 1859, the defendant, still residing in New York, was 
 discharged under the insolvent laws of that State. Whether this dis" 
 charge is a bar to a suit brought on the note in Michigan by the indor- 
 sees, quere. Brighton Market Bank v. Merrick, 11 Mich., 405. 
 
 593. Stamp act: cnrinif defective stamping^. Where a 
 statute makes a contract void for want of compliance with the require- 
 ments of the stamp law, the right to avoid it for this defect is not property 
 which is protected by constitutional provisions ; and Congress has full 
 power by a subsequent act to waive the penal consequences, and make 
 the contract valid on the proper stamp being affixed. Gibson v. Sibiard' 
 13 Mich., 214. 
 
 594. Retrospective liaws. There is nothing in the National 
 Constitution forbidding Congress from passing retrospective statutes, 
 except when'they are of the class technically known as ex post facto; 
 and Congress may therefore pass them, even though private rights are 
 affected thereby, unless they are invalid for some other reason than 
 their retrospective character. Ibid. 
 
 595. Obligation of Contracts. The charter of a banking 
 corporation is a contract ; and if it contain no reservation of a power to 
 
 76 
 
CONSTITUTIONAL LAW. § 605 
 
 repeal, its repeal is a violation of tlie constitution of the United States. 
 Michigan State Bank v. Hastings, 1 Doug., 325. 
 
 596. Tlie statute requiring a new promise to be in writing, in order 
 to revive a debt barred by tlie statute of limitations, does not violate 
 the obligation of contracts. Joy v. Thompson, 1 Doug., 373. 
 
 597. The provision in the act of 1841, prohibiting the sale of prop- 
 erty on execution, unless it would bring two-thirds its value as ap- 
 praised, was unconstitutional and void as to pre-existing contracts. 
 Willard v. Longstreet, 2 Doug., 173.- 
 
 598. A law increasing exemptions from execution, affects the remedy 
 only, and is not unconstitutional as applied to pre-existing debts. Boek- 
 wdl V. HubbelVs Adm'rs, 3 Doug., 197. 
 
 599. A judgment is not a contract in the constitutional sense. Grane 
 V. Hardy, 1 Mich., 56. 
 
 600. The act of 1843 — Oomp. L., § 4614 — inhibiting actions of eject- 
 ment by mortgagees before foreclosure, is unconstitutional and void as 
 to mortgages previously executed. It does not affect the remedy 
 merely, but takes away the right to the rents and profits, which consti- 
 tute a part of the mortgage security. Mwndy v. Monroe, 1 Mich., 68. 
 And see Stevens v. Brown, Wal. Ch., 41 ; Blackwoodv. Van Vleet, 11 Mich., 
 353. 
 
 601. The law allowing a certain time for redemption after foreclo- 
 sure of a mortgage under the power of sale, is a part of the contract ; 
 and a legislative "act shortening the time, is unconstitutional as to 
 mortgages in existence at the time the act is passed. ' Gargill v. Power, 
 1 Mich., 369. 
 
 602. A law passed in pursuance of the police power of the State, is 
 not unconstitutional because operating to pi-event the performance of a 
 contract previously made. People ». Hawley, 3 Mich., 330. 
 
 603. An act subsequent to the charter of a corporation, and not as- 
 sented to by it, which subjects the corporation to a total forfeiture for 
 that which under the charter was cause for partial forfeiture only, is 
 unconstitutional. Per two of the Judges, People d. Jackson and Michigan 
 Plank Road Co., 9 Mich., 285. 
 
 604. So also if it import a new and additional term into the charter, 
 and impose a forfeiture of the franchise for a violation thereof. Hid. 
 
 3. Q-DBSTiONS Under the Constitution of the State. 
 
 605. Cteneral principle. To authorize a Court to declare a 
 statute unconstitutional, it should be able to point out the discrepancy 
 between the statute and the constitution, and the infraction should be 
 clear and free from reasonable doubt. Tyler «. People, 8 Mich., 320 ; 
 Scott V. Smart's Executors, 1 Mich., 295 ; Peopk v. GaUagher, 4 Mich., 344 ; 
 
 77 
 
§ 614 CONSTITUTIONAL LAW. 
 
 Sears v. CultreU, 5 Mich., 251 ; People v. Blodgett, 13 Micli., 127; People v. 
 Mahaney, 13 Mich., 481. 
 
 606. A statute cannot be declared void on the ground of its violating 
 fundamental principles of repuhlican government, when it does not 
 come in conflict with constitutional provisions. People v. Mahaney, 13 
 Mich., 481 ; People v. Oallaglwr, 4 Mich., 244. But there is no such vio- 
 lation in the case of the Detroit Metropolitan Police Law. People v. 
 Mahaney, 13 Mich., 481. 
 
 6©?. In a case of doubt, every possible presumption, not clearly in- 
 consistent with the language and the subject matter, is to be made in 
 favor of the constitutionality of State legislation. Seat's v. GottreR, 
 5 Mich., 251. 
 
 60§. I>eleg'atiii§r legislative po'WFer. The power of enact- 
 ing general laws cannot be delegated by the legislature, even to the 
 people. People v. Collins, 3 Mich., 343. 
 
 609. The Prohibitory Liquor Law of 1853 provided for its submis- 
 sion to a vote of the electors of the State, to be taken in June of that 
 year. If approved by a majority, the law was to take effect on the first 
 of December following ; but if not, it was to become a law from and 
 after the first day of March, 1870. A majority of the vote cast was in 
 favor of its adoption. Whether this submission of the question .to the 
 people was to be regarded as a delegation of legislative power, and the 
 law inoperative in consequence, quei-e. Ibid. 
 
 61®, SSiiles of coiistrMCtioii. A provision of the constitution 
 contravening the common law is to be strictly construed. This princi- 
 ple applied to the statutes relative to the rights of married women in 
 property. Brown v. Fifield, 4 Mich., 323. 
 
 611. That a law unconstitutional in some of its provisions may be 
 valid as to the remainder, see Smith v. Village of Adrian, 1 Midi., 495; 
 Ames i>. Port Huron Lofj JDricing and Booming Go., 6 Mich., 266, and 11 
 Mich., 139 ; Peojile i\ Mahaney, 13 Mich., 481. 
 
 612. Grand iTiiry. Keeping a house of ill-fame was a criminal 
 offense within the meaning of the clause in the State constitution of 
 1835, which declared that "No person shovdd be held to answer for a 
 criminal offense, unless on presentment of a grand jury, except," &c. 
 Slaughter v People, 2 Doug., 334. 
 
 613. .^os'y triaJ. A person charged in the Recorder's Court of 
 Detroit with an offense against the general laws of .the State, cannot 
 waive his right to a trial by jury. People v. Smith, 9 Mich., 193. 
 
 614. Confronling ■4vilnessc§. A certificate of marriage, 
 signed only by the minister or ofllcialing olflcer, or the reci)rd thereof, 
 cannot avail as evidence of the marriage in criminal pi'oceedings, where 
 
 78 
 
CONSTITUTIONAL LAW. § 622 
 
 the defendant is entitled to bo confronted with, the witnesses against 
 him. People v. Lambert, 5 Mich., 349. 
 
 615. KcIigiouK belief of 'witMesse§. Under the constitution 
 and statutes of the State, a pai-ty has no right to question a witness 
 with respect to the hellef of tlie latter in a Supreme Being, or to former 
 statements in reference to such belief. And if such questions are put 
 and answered, the witness cannot be impeached by proof of fonncr in- 
 consistent statements which he denies having made. People v. Jenness, 
 5 Mich., 305. 
 
 616. Due process of laTV. A statute which merely gives a 
 new remedy, where none existed before, is not objectionable as depriv- 
 ing a party of vested rights. WIdpple v. Farrar, 3 Sfliil., 436. 
 
 617. The "search and seizui-e clause'' in the Prohibitory Liquor 
 Law of 1855, gave no opportunity to the party accused to defend his 
 property ; required no notice to him, and provided no means by which 
 he was to be informed when, where and before whom the search war- 
 rant was to be returned. It was therefore unconstitutional. Hibbard v. 
 People, 4 Mich., 135. 
 
 618. The joint debtor act, authorizing judgment in form to be en- 
 tered against all, though only one has been served with process, is 
 not unconstitutional. Brooks «. Mclntyre, 4 Mich., 316. 
 
 619. Nor is the provision in the Justices Act of 1855 — Comp. L. 
 § 3866 — authorizing the Circuit Court, on rendering judgment against 
 an appellant, to render it against the surety in the appeal also. Ohap- 
 pee V. Tho?naa, 5 Mich., 53. 
 
 620. The provision in the tax law of 1853, that "In case any per- 
 son shall refuse or neglect to pay the tax imposed on him, the treasurer 
 shall levy the same by distress and sale of the goods and chattels of said 
 person, or of any goods and chattels in his possession," "and no claim 
 of property to be made thereto by any other person shall be available 
 to prevent a sale," but giving the owner of any property "Which might 
 be thus seized and sold to pay the tax of another, a remedy against the 
 person taxed — hold not unconstitutional. Sears v. GoUrell, 5 Mich., 251. 
 
 621. The words " due process of law," as used in § 32, Art. vi. of the 
 constitution, mean the law of the land; by which is to be understood laws 
 which are general In their operation, and not special acts of legislation 
 passed to affect the rights of particular individuals against their will, 
 and in a way in which the same rights of other persons are not affected 
 by existing laws. Ibid. See this case commented on in 8 Mich., 297, 
 333, and also in the two cases next referred to. 
 
 622. The provision in the constitution that "No person shall be 
 deprived of life, liberty or property without due process of law," as 
 applied to proceedings of a judicial character, was intended to secure to 
 
 79 
 
CONSTITUTIONAL LAW. 
 
 thlfe citizen the rigM to a trial, according to the forms of law, of the 
 questions of his liability and responsihility before his person or his 
 property shall he condemned. Parsons v. Bussdl, 11 Mich., 113 ; Ames 
 ». Port Huron Log Driving and Booming Co., 11 Mich., 139. 
 
 623. The trial must be by an impartial tribunal, and judgment must 
 precede the deprivation of property. Ibid. 
 
 624. Under the Boat and Vessel Law — Comp. L., ch. 149 — a vessel 
 might be seized and sold upon the mere assertion of a debt or demand, 
 without any proof to substantiate the claim being made before a judicial 
 tribunal, and without any judgment or decree of any such tribunal allow- 
 ing the sale. It jg threfore in conflict with the provision of the consti- 
 tution above qu(TOa, and void. Pa/rsons v. Bussdl, 11 Mich., 113. 
 
 625. The statute of 1855 for the forming of rafting companies — 
 Comp. L., Ch. 66 — in so far as it undertakes to authorize the companies 
 formed under it, without any necessity arising from the obstruction of 
 their own business, to assume the control and management of the logs 
 of unconsenting parties which are being floated on public waters, and 
 to enforce compensation against the logs for thus controlling and man- 
 aging them, is unconstitutional. 
 
 (a.) It allows persons thus organizing to assume a police power over 
 the waters used, and thus to exercise a public office without either an 
 election or any appointment. 
 
 (J.) And it deprives persons of their property without due process of 
 law, since under the statute the corporation and its agents must of ne- 
 cessity determine when the emergency has arisen which justifies assum- 
 ing control, and they must also assess their own charges, and sell the 
 property to pay them. Ames v. Port Huron Log Drimng and Booming 
 Co., 11 Mich., 139. 
 
 626. Tax deeds evidence of title. It is competent for the 
 Legislature to make a tax deed prima facie evidence of the regularity of 
 the proceedings, and of title in the purchaser. Oroesbeckv. Sedey, 18 
 Mich. 339. 
 
 627. The provision in the tax law of 1858, that a tax deed two 
 years recorded shall be conclusive, fell with the clause which author- 
 ized proceedings befo're a circuit court commissioner to test the validity 
 of tax titles. {WaMbyv. OoMendar, 8 Mich., iSO.) Quinlonv. Sogers, 12 
 Mich., 168. See post 637, 638. 
 
 62§. Uniform taxation. Sec. 11, Art xiv. of the Constitution, 
 requiring the legislature to provide an uniform system of taxation, was 
 not operative until some new rule in conformity with such requirement 
 was provided by the legislature : and it did not therefore affect assess- 
 ments made before the establishment of the new rule contemplated 
 thereby. Williams v. Mayor, &c., of Detroit, 2 Mich., 560. 
 80 
 
CONSTITUTIONAL LAW. § 636 
 
 629. The provisions in the Detroit city charter, authorizing the com- 
 mon council to proyide funds for defraying the expenses of paving 
 streets, by assessment upon the owners and occupants of adjoining lots, 
 held constitutional. Hid. 
 
 630. The amended charter provides that the common council may 
 cause the streets to he graded and paved, and assess the vrhole expense 
 of such grading and paving in front of any particular lot, to the center 
 of the street, upon such lot, and makes such assessment a lien upon the 
 premises until paid, and also a personal charge against the owner, and 
 authorizes a warrant for distress and sale of his goods for the same. 
 "Whether this provision is constitutional and valid, quere. Woodbridge v. 
 aUy of Detroit, 8 Mich., 374. 
 
 631. Taxation of cities by state agencies. There is no- 
 thing in the maximum that " taxation and representation go together," 
 which can preclude the State legislature from establishing in a city a 
 metropolitan police board, with power to estimate the police expenses, 
 and compelling the city authorities to raise by taxation the amount so 
 estimated. Every city is represented in the State legislature ; and it is 
 for that body to determine how much power shall be conferred by the 
 municipal charters which it grants. People v. Mdhaney, 13 Mich., 481. 
 
 633. Restrictions upon municipal taxation. A law au- 
 thorizing municipal taxation for police expenses, to the extent only of 
 the actual estimated expenses, imposes restriction upon taxation within 
 the meaning of §13, art. xv. of the constitution. Hid. 
 
 633. Stating object of tax. An act which provides for levy- 
 ing a tax' to meet the expense of the police system of a city, as estimat- 
 ed by the police board, sufficiently states the tax and the object to 
 which it is to be appUed, within §14 of art. xiv. of the constitution. 
 Ibid. 
 
 634. Remitting taxes. The act of Feb. 13, 1853, authorizing 
 the commissioners for the - construction of the St. Mary's Falls Ship 
 Canal, to stipulate on behalf of the State, in the contract for such con- 
 struction, that any taxes to be assessed on the lands donated for that 
 purpose should be remitted to the contractors for a period of five years, 
 except as to any portion of such lands sooner sold, and the contracts 
 made by the commissioners in pursuance of such act, are constitutional. 
 People v. Auditor- Oeiural, 7 Mich., 84. 
 
 635. I^imitation laws. The legislature has general power to 
 pass limitation laws, prescribing the time within which parties shall 
 assert their rights by suit ; but this power is not so unlimited as to en- 
 able it, under the form of a limitation law, to take away all remedy, 
 Priix 9). SopJcin, 13 Mich., 318. 
 
 636. A legislative act retrospective in its operation, and cutting off 
 
 6 81 
 
CONSTITUTIONAL LAW. 
 
 all remedy for the lapse of time occurring before it became a law, would 
 violate the constitutional provision against depriving a person of pro- 
 perty without due process of law ; and would therefore be void. lUd. 
 
 637. The statute of 1858 (S. L., p. 193, §135), which undertakes to 
 make deeds given by the Auditor-General of lands bid off by the State 
 and remaining undisposed of for five years, conclusive evidence of an 
 absolute title in fee simple in the grantee, even against the original own- 
 er who has remained in undisturbed possession of the lands, is not 
 valid as an act of limitation. Oroeaheokv. Sedey, 13 Mich., 329. 
 
 638. One who is in the actual or constructive possession of property 
 cannot be compelled to take measures against an opposing claimant ; 
 and a statute depriving him of his rights for a failure to do so is in no 
 sense a limitation law, but an .unlawful confiscation. lUd. 
 
 639. Elections : presence of voters at their places of 
 residence. The provision in the State constitution (Art. vil, §1.), 
 that "No citizen or inhabitant shall be an elector, or entitled to vote at 
 any election, unless he has resided in the township or ward in which 
 he offers to vote ten days next preceding such election," was designed 
 and has the effect to require that each elector shall cast his ballot in the 
 township or ward of his residence. And the Military Suffrage Bill of 
 February 5, 1864 (S. L., p. 40), which authorized polls to be opened 
 and ballots cast out of the State, was unconstitutional, as in conflict with 
 this provision. People v. Bhdgett, 13 Mich., 137. 
 
 640. Election of members of leg-islature. Each house is 
 the sole judge of the election and qualification of its members (Art iv. 
 §9) ; and an act cannot be declared invalid on the ground that a portion 
 of the majority Voting in its favor in one house were erroneously de- 
 cided by that house to be elected, and that excluding their votes the act 
 was not adopted by the proper majority. People v. MaJumey, 13 Mich., 
 481. 
 
 641. Title of legislative act. The Detroit Metropolitan Police 
 Act (S. L., 1865, p. 99) has for its single object the establishment of a 
 police government for that city ; and this object is fairly indicated by 
 its title ; and it is not, therefore, in conflict with §30 of Art. iv. of the 
 constitution. BM. 
 
 642. Anjendatory statutes. A statute having amendatory 
 effect by implication, and repealing inconsistent acts, is not in conflict 
 with §35 art. 4 of the Constitution, because not re.enacting and publish- 
 ing at length the acts so altered and amended by implication. BM. 
 
 643. Appropriations for educational purposes. The 
 act of 1857 setting apart seventy -five per cent, of the proceeds of swamp 
 lands for the primary school fund, does not constitute such an appro- 
 priation of the lands to educational purposes as to place them, under 
 
CONSTITUTIONAL LAW. § 650 
 
 §3 Art. xiii. of the constitution, beyond legislative control. People v. 
 Auditor- Oeneral, 12 Mick, 171. 
 
 644. The subsequent acts, reducing the proportion thus set apart, 
 and appropriating lands to the con-struction of roads, were therefore not 
 invalid. Ihid. 
 
 645. Adjusting claims agatii§t counties. The provision of 
 the Constitution (Art. x. §10) that " The board of supervisors, or, in 
 the county of Wayne, the board of county auditors, shall have the ex- 
 clusive power to prescribe and fix the compensation for all services ren- 
 dered for, and to adjust all claims against, their respective counties, and 
 the sum so fixed or defined shall be subject to no appeal," does not em- 
 brace those cases where charges are laid upon counties by law simply 
 as a fair way of apportioning the public expenses, and where no benefit 
 accrues to them in their corporate capacity. People v. Auditors of 
 Wayne, 13 Mich., 333. 
 
 646. Where the statute has, in such cases, pointed out any other 
 mode of adjusting or regulating compensation, than by the county 
 boards, the latter have no power of review, but must allow and pay the 
 demands as thus adjusted or regulated. Ibid. 
 
 647. It is competent for the legislature to provide, as they have 
 done (Laws of 1863, p. 333), that the salary of the clerk of the Police 
 Court of Detroit shall be prescribed by the common council of Detroit, 
 notwithstanding it is payable by the county of Wayne ; and the board 
 of county auditors of Wayne have no power to reduce the salary after 
 the common council has fixed it. Ibid. See supra, 431, 433. 
 
 648. liaying out roads. Sec. 3, Art xviii. of the Constitution 
 provides that when private property is taken for the use and benefit of 
 the public, the necessity of using such property, &c., and the just com- 
 pensation to be made therefor, except, &c., shall be ascertained by a 
 jury. As the laws then in force relative to laying out roads were in- 
 consistent with this provision, it was held that, until new laws were 
 passed there was no authority for laying out roads. People ». KimbaU, 
 4 Mich., 95. 
 
 649. Divorce. The legislature being prohibited from granting 
 divorces — Const. Art. iv., §36 — it was held that a legislative enactment 
 authorizing a court to grant a divorce for a cause not sufficient by the 
 general laws, was void, as conflicting with this provision. Teft v. Teft, 
 3 Mich., 67. 
 
 650. Legislative authority to sell lands. A special law, 
 authorizing a plank road company to mortgage its road, is not in con- 
 flict with the constitutional provision inhibiting the legislature from au- 
 thorizing the sale of any real estate of any person by private or special 
 law. Joy 1!. Jackson and Michigan Plank Road Co., 11 Mich., 155. 
 
§ 658 CONSTITUTIONAL LAW. 
 
 651. Judicial officer removing from district. Sec. 23, 
 Art. vi. of the constitution providing that whenever by a change in the 
 boundaries of a tovynship a justice of the peace shall be placed without 
 the same, he shall be deemed to have vacated his office, it was held that 
 it was not competent for the legislature to provide, in organizing a city 
 from portions of two townships, that the justices of the peace previous- 
 ly elected in the townships, but residing within the limits of the new city, 
 should remain in office until the expiration of the term for which they 
 were elected. People v. Geddes, 3 Mich., 70. 
 
 652. Prohibiting sale of liquors. In the exercise of its 
 police powers, a State may prohibit, under penalties, the exercise of any 
 trade or employment which is found to be hazardous or injurious to its 
 citizens, without providing compensation to those upon whom the pro- 
 hibition operates. People v. Hawley, 3 Mich., 330 ; People t). OaMagh&r, 4 
 Mich., 244. 
 
 653. Eiicense to sell liquors. Act No. 178 of 1851, which pro- 
 hibited, under a penalty, the sale or giving away of spirituous liquors by 
 any person, until he should have given the bond therein provided for, 
 and upon which a right of action was given to any person injured by 
 any such sale, &c., or by or in consequence of the intoxication of any 
 person occasioned by the liquor so sold, &c., was not void as in eftect 
 authorizing the grant of a license to sell, and thus conflicting with 
 § 47, Art. iv. of the constitution. Langley v. BrgeTisinger, 3 Mich., 341. 
 
 654. See the question discussed, whether the authority to sell under 
 the Prohibitory Liquor Law of 1853 was to be regarded as a license to 
 sell. People v. Collins, 3 Mich., 343. 
 
 655. The permission to sell for certain purposes under the Prohibi- 
 tory Liquor Law of 1855 is not in conffict with said § 47 of Art. iv 
 People V. GaUagher, 4 Mich., 244. 
 
 656. Suits against municipal corporations. Under § 18, 
 Art. vi. of the constitution, the legislature may lawfully exempt muni- 
 cipal corporations from the jurisdiction of justices of the peace. Boot v. 
 Mayor, dc, of Ann Arbor, 3 Mich., 433. 
 
 657. Process. Sec. 35 of Art. vi., which provides that " The style 
 of all process shall be ' in the name of the people of the State of Michi- 
 gan,' " applies only to process issued by Courts or judicial officers, and 
 would not include the supervisor's warrant appended to the tax roLL 
 Tweed i) Metcalf, 4 Mich., 579 ; Wisner ■». Bavenport, 5 Mich., 501. 
 
 65§. Creneral banking law. So much of the General Bank- 
 ing Law of 1837 as purported to confer corporate rights upon the asso- 
 ciations organized under it, was in violation of § 3, Art, xii. of the con- 
 stitution of 1835, which declared that " The legislature shall pass no act 
 84 
 
CONTEACTS. § 668 
 
 of incorporation unless with tlie assent of at least two-thirds of each 
 house." Green v. Oraves, 1 Doug., 351. 
 
 659. Two-tliirds majority. The word " house '' in said sec- 
 tion meant the members present, doing business — there being a quorum 
 — and not a majority of all the members elected. SoutJiworth v. Pal- 
 myra and JacksonburoTi JSailroad Co., 3 Mich., 387. 
 
 660. Pay of speaker of the House. Under §§15 and 17 of 
 Art. iv. the Speaker of the House of Kepresentatives cannot, as speaker, 
 receive any compensation or mileage beyond what he receives as a re- 
 presentative. People ». Whittemore, 3 Mich., 306. 
 
 661. Iinprisonmeiit for debt. Sec. 3633 of Comp. Laws, au- 
 thorizing the issuing of a warrant in an action on contract, on the ground 
 soldy of the non-residence of defendant, is in violation of §33 of Art. vi., 
 forbidding imprisonment for debt, except, &c. Clwppee «. Thomas, 5 
 Mich., 58. 
 
 662. Imprisonment on an execution in replevin would not fall with- 
 in the prohibition. Fuller v. Boioker, 11 Mich., 304. 
 
 663. .Intlicial power. The constitution having vested the 
 whole judicial power of the State in certain specified Courts and officers, 
 and provided for the election of all judicial officers by the people, the 
 legislature cannot confer any portion of such judicial power upon any 
 officer not elective, and not so specified. And therefore the act of Feb. 
 14, 1853, " to provide for the discharge of certain duties required to be 
 performed by circuit court commissioners," in so far as it undertakes to 
 confer judicial powers upon notaries public in certain cases, is uncon- 
 stitutional. Chandler v. Nash, 5 Mich., 409. See, also, CmcuiT Couet 
 
 COMMISSIOISEIIS. 
 
 CONTRACTS. 
 
 664. Construction. The intention of the parties, as expressed 
 in their contracts, is to govern in the construction of them. Branson v. 
 Oreen, Wal. Ch., 56. And the object of interpretation is to ascerta 
 this intention. Norris v. Shoiberman, 3 Doug., 16. 
 
 665. The intention is to be regarded, rather than the language em- 
 ployed to express it. Bird ii. MamUton, "Wal. Ch., 361. 
 
 666. Several contracts, executed by the parties at the same time, 
 and relating to the same matter, are to be construed together. Branson 
 V. Oreen, "Wal. Ch., 56 ; Norris v. HOI, 1 Mich., 303. 
 
 667. "Where one writing refers to another, the intention of the par- 
 ties is to be gathered from the two, construed together. ■ Branson is. 
 Oreen, Wal. Ch., 56. 
 
 668. "Where one contract grows out of another, to which it refers, 
 
 85 
 
§ 677 CONTRACTS. 
 
 and both are in writing, the first may be looked into to ascertain the 
 intention of the parties in tte latter, if it is not clearly expressed there- 
 in. Ibid. 
 
 669. The whole instrument is to be construed together ; and a con- 
 struction of a detached part without reference to the rest, is erroneous. 
 Norris v. Showerman, Wal. Ch., 206, and 3 Doug., 16. Bird v. Sam/H- 
 ton, Wal. Ch., 361 ; Paddack v. Pa/rdee, 1 Mich., 421. 
 
 67©. An agreement by the lessee in a memorandum signed by him at 
 the foot of the lease, constitutes a part of the lease. Norris v. Shower- 
 man, Wal. Ch., 206. 
 
 671. Particular words and phrases unguardedly used, when the in- 
 tention of the parties is apparent from the whole instrument, and is 
 not repugnant to any rule of law, will be controlled by it, though such 
 words and phrases seem to indicate a different intention. Bird v. Ham- 
 ilton, Wal. Ch., 361. 
 
 672. The situation of the parties, and the subject matter of the trans- 
 action, may be taken into consideration in construing their contract. 
 Paddack ii. Pardee, 1 Mich., 421 ; Norris ». Showerman, 2 Doug., 16. 
 See Pacey i>. Otis, 11 Mich., 213. 
 
 673. Parol agreements merged. It is a general rule that a 
 contract cannot rest partlyin writing and partly in parol. When a con- 
 tract is reduced to writing, all previous parol agreements relating to the 
 same matter are merged in the written contract. Street ii. Bow, Har. 
 Ch., 427. 
 
 674. When parties have deliberately and understandingly executed 
 an instrument in writing, they cannot afterwards be permitted to insist 
 that it does not express their real intentions, but, that a different thing 
 was designed. It is conclusively presumed that their whole engage- 
 
 - ment, and the extent and manner of their undertaking, were reduced to 
 writing ; and no evidence is permitted tending to vary or contradict the 
 terms of the contract, or to substitute a new and different contract for 
 it. Adair v. Adair, 5 Mich., 204. See, also, Schwarz v. WendeU, Wal. 
 Ch., 267 ; Jones v. Phelps, 5 Mich., 218. 
 
 675. And this is so, even though the parties may have mistaken the 
 legal intent of the contract. Holmes v. Hall, 8 Mich., 66. 
 
 676. But where there was a want of certainty in a written instru- 
 ment, and it was not clear from its terms whether the undertaking of 
 defendants was to the plaintiffs or to third persons named, parol 
 evidence of the circumstances attending the making of it was held ad- 
 missible, not to contradict the written instrument, but to aid the Court 
 in giving a true construction to it. Fa^y v. Otis, 11 Mich., 213. See 
 Bowe V. Wright, 12 Mich., 289. 
 
 677. A§seiit necessar}". Where defendant gave plaintiff his 
 
CONTRACTS. § 684 
 
 check for $300 for a watch worth $15, but the whole transaction was 
 in mere frolic and banter, the one party not expecting to buy the watch 
 nor the other to sell it, it was held that no recovery could be had upon 
 the check, notwithstanding defendant had retained the watch, and did 
 not offer to return it until the trial. KeOer n. Holderman, 11 Mich., 348. 
 
 678. Ambiguous time. A promissory note, dated July 20, was 
 by its terms payable " One year, August 15th, after date." Sdd, that 
 it was payable one year from the 15th day of August after its date. 
 Washington County Bank v. Jerome, 8 Mich., 490. 
 
 679. Unnecessary seal. "Where agents executing an instru- 
 ment on behalf of a corporation sign their own names and affix their 
 own seals, such seals are merely nugatory, and the instrument is to be 
 regarded as the simple contract of the corporation. Regents of the, Uni- 
 •oersUy v. Detroit Toung MerCs Society, 13 Mich., 138. See, also. Sweet- 
 ur V. Mead, 5 Mich., 107. 
 
 680. Sunday contracts. A note given for the difference in the 
 value of horses exchanged on Sunday, held void under the statutes of 
 1838, which prohibited " any manner of labor, business or work " on 
 that day, except only works of necessity and charity. Adams ». Hamdl, 
 3 Doug., 73. 
 
 681. A sale made on Sunday is void under the statute — Oomp. L,, 
 §1574 — and the vendor may, on a subsequent day, tender back the pur- 
 chase price, and recover his property by replevin if it is not restored on 
 demand. Tucker i). Moiorey, 12 Mich., 378. 
 
 682. Against public policy. A contract by which a tenant is 
 induced to desert his landlord, is corrupt and void ; and the person to 
 whom the tenant has attorned cannot maintain an action upon it. 
 Byrne V. Beeson, 1 Doug., 179. 
 
 683. Against positive laAV. A bank having authority under 
 its charter to hold such real estate only as was required for its accomo- 
 dation in relation to the convenient transaction of its business, or such 
 as might have been bona fide mortgaged to it by way of security, or 
 conveyed to it in satisfactron of its debts previously contracted in the 
 course of its dealings, or purchased at sales upon judgments which 
 might have been obtained for such debts, was held to have no right to 
 purchase lands for the purpose of selling them again ; and the Courts 
 would not aid either party to enforce a contract for that purpose against 
 the other. Bank of Michigan' v. Niles, 1 Doug., 401, andWal. Ch., 99. 
 See, also. Smith i>. Barstow, 2 Doug., 155 ; Hurlbut v. Britain, 2 Doug., 
 191 ; Orr «. Lacey, 2 Doug., 230. 
 
 684. A subsequent contract, unconnected with the illegality, and for 
 a new consideration, is valid and will be enforced, although it may have 
 grown out of the illegal transaction, and the party to whom the pro- 
 
 87 
 
693 CONTRACTS. 
 
 mise was made may have had a knowledge of it. Smith v. Barstow, 2 
 Doug., 155. 
 
 685. Where a contract in violation of law has been carried into effect, 
 the law will not aid either party to undo what has been done, and to 
 divest a title that has passed. Bagg i). Jerome, 7 Mich., 145. 
 
 686. A judgment in favor of a bank organized under the unconsti- 
 tutional General Banking Law, cannot support a promissory note given 
 by the defendants, in part payment of the judgment, to one who had 
 been appointed receiver of the bank. The illegality in the original 
 transaction affects the new note. Comstoek ®. Draper, 1 Mich., 481. 
 
 687. Conditional. A promise upon a condition to be performed 
 by the other party, is a valid contract when the condition is performed. 
 It is then clothed with a valid consideration which relates back to the 
 promise, and it then becomes valid as an express promise. People v. 
 Taylor, 3 Mich., 350. 
 
 688. Express and implied. Where there is an express con- 
 tract none can be implied. If, therefore, a party defrauded by an ex- 
 press contract rescinds it, he cannot set up an implied contract and 
 sue the other party thereon. Galloway v. Holmes, 1 Doug., 330. 
 
 689. As, where goods are purchased on credit by fraud, the vendor 
 cannot, before the credit has expired, bring suit in assumpsit for goods 
 sold. Ibid. 
 
 690. Fraud does not render a contract void, but only voidable at 
 the option of the defrauded party. If he elects to aflBrm it, he is bound 
 by it in all respects. If a vendor having a right to rescind the contract 
 of sale for fraud, brings indebtitatus assumpsit for the price of the goods, 
 he thereby afSrms the contract. Ibid. See, also, JeweU v. Petit, 4 Mich., 
 508. 
 
 . 691. If the party defrauded disaffirm the contract, he must do so 
 
 altogether, and as soon as the fraud is discovered. He cannot adopt 
 
 the part which is for his own Interest, and disaffirm as to the residue. 
 
 Jmett V. Petit, 4 Mich., 508. 
 
 » 
 692. Rescinding for defects. Manufacturers who had agreed 
 
 to make and forward to a customer fifty sets of castings, according to 
 a pattern and size ordered, to be forwarded from time to time as finish- 
 ed, sent forward fifteen sets, which the purchaser alleged were defec- 
 tive and refused to retain. On being notified, the manufacturers offered 
 to make good the defects without expense to the purchaser, but to this 
 offer the purchaser made no answer, and when the balance of the cast- 
 ings came, without examining whether they were defective, returned 
 the whole to the manufacturers. It was lidd that the manufacturers 
 were entitled to a reasonable time to fulfill the contract after being no- 
 tified of the defects ; and that they might recover, according to the 
 
CONTRACTS. § 699 
 
 contract price, for such of the castings forwarded as were not defective. 
 Davis V. Downs, 4 Mich., 530. 
 
 693. Hiring- by the day. Under an ordinary hiring by the 
 day, the party cannot be required to prolong his service in order to 
 complete any particular piece of work upon which he may happen to 
 be employed. Wyngert «. Norton, 4 Mich., 386. 
 
 694. Agreement not to §ue. "Where a creditor agrees with 
 his debtor that he wiU never, or not for a specified time, pursue against 
 him any or all of the remedies which the law gives for the enforcement 
 of a particular demand, the agreement is not collateral to the original 
 contract of indebtment, giving merely a claim for damages in case of 
 its breach, but it operates directly upon the original contract, and may 
 be pleaded in bar of suit. Robinson i>. Godfrey, 2 Mich., 408 ; Morgan 1>. 
 Butterfidd, 3 Mich., 615. For construction of a special agreement not 
 to sue, see Kent v. May, 18 Mich., 38. 
 
 695. Part delivery. Although a contract for the sale and de- 
 livery of goods be entire, and the vendor deliver a part only, yet if the 
 vendee retain such part, the vendor may recover its value in an action 
 for goods sold and delivered. Gkirk v. Moore, 3 Mich., 55. 
 
 696. Xiand purchase — delivery of deed. A purchaser gave 
 his bond and mortgage for the purchase price, and received from attor- 
 neys who were acting for both parties a receipt therefor, stating that 
 the attorneys were to hold the same without attempting their enforce- 
 ment until conveyances of the property purchased were made. It was 
 held that the vendors had performed on their part when they had exe- 
 cuted the conveyances, and left them with the attorneys. VanDyke v. 
 Dams, 3 Mich., 144. 
 
 697. Land clearing. In a contract for clearing land, one party 
 was to chop all the timber suitable for rail cuts into rails, and all the 
 other timber and brush, except some trees to be left for shade, he was 
 to cut and bum. He cut a portion of this last timber into fire wood, and 
 sold it — no objection thei^o appearing to have been made by the other 
 party. Held, that the law would not imply a promise to pay for the 
 wood so cut and sold. Daniels v. Mosher, 3 Mich., 183. 
 
 69§. Payment in board. By the terms of a hotel lease, the rent 
 was made payable in monthly instalments, and the lessor agreed to take 
 one half the same " in board as the same falls due." Held, that it was 
 not optional with the lessee to pay in money or board, but that he was 
 under the same obligation to pay the board, if demanded, as the lessor 
 to receive it. Evans v. Norris, 6 Mich., 369. 
 
 699. The lessee was under no obligation to call upon the lessor, and 
 demand that boarders be sent, but the lessor was bound to call for 
 
§ 705 CONTRACTS. 
 
 the board witMn the tenn, and substantially as the same fell due. 
 Ibid. 
 
 700. Title to property wbicta is being mauufactared. 
 
 Plaintiflf had a contract with a firm engaged in sawing lumber, by which 
 they were to receive certain saw logs belonging to him, manufacture the 
 same into lumber, ship the lumber to parties to whom the same had 
 been contracted, receive payment therefor, and pay over a certain pro- 
 portion, retaining the balance for their services ; and the contract pro- 
 vided that the logs and lumber were at all times to be the property of 
 the plaintiff until he had received the amount so to be paid him. Hdd, 
 that the logs were not subject to levy on execution against the firm. 
 Baaaett v. Sathcmay, 6 Mich., 397. 
 
 701. Independent agreement§. For a contract in which the 
 agreements by a purchaser to take up two incumbrances were held not 
 to be so connected that the necessity of paying a larger sum than was 
 anticipated for one would excuse taking up the other, see Kibbee v. 
 Thompson, 6 Mich., 410. 
 
 702. Transporting goods. Persons who were not common 
 carriers made a contract to take the staves of defendant at a certain point, 
 and deliver and pile them at a certain other point, at prices fixed upon. 
 There was nothing in the contract to show that they were to be com- 
 pensated for any risks in transporting them, and as they did not 
 expressly assume all risks, it was held, that they were only bound to 
 ordinary care and diligence, and could not be held to have agreed to 
 deliver the whole quantity of staves at all events, and to be paid noth- 
 ing if the staves were lost without their fault. Shaw v. Dmis, 7 Mich., 
 318. 
 
 703. Alternative contract. Plaintiff made a parol contract 
 with L. to make certain improvements on the land of the latter, for 
 which he was to be paid in case L. returned from California, where he 
 was going, but if L. did not return plaintiff was to have the land. L. 
 died in California, and it was held that plai^jff had no claim against 
 the estate, but must look to the land as his pay. LaRoe v. Boeser, 8 
 Mich., 537. 
 
 704. Contract to find property to levy on. A contract 
 by which plaintiff undertakes to find property upon which defendant 
 can levy to satisfy a judgment held by him, in consideration of one-third 
 the amount collected on the judgment, is not a transfer to the plaintiff 
 of any present interest in the judgment, and does not give him the con- 
 trol of its collection. Hickey «. Baird, 9 Mich., 33. 
 
 705. Plaintiff pointed out property to be levied upon, and the same 
 was levied upon accordingly. Subsequently defendant discharged the 
 judgment on receiving a conveyance of lands which proved of no value. 
 
CONTBACTS. § 713 
 
 Plaintifr then sued, claiming to recover one-third the amount of the 
 judgment, but it was held that he was entitled to recover only one-third 
 what the property levied upon was worth. Ibid. 
 
 706. Duplicates. Where a contract is executed in duplicate, 
 each of the duplicates is to be treated as an original. Ora/ne v. Partland, 
 9 Mich., 493. 
 
 707. "Where parties intend to make a contract in duplicate, so that 
 each shall have in his possession the evidence of his rights and of the 
 obligations of the other, the contract is not complete and duly executed 
 until duplicates at least substantially alike are executed and delivered. 
 Ibid. 
 
 708. "Where one without written authority from the owner drew 
 contracts for the sale of a parcel of land, both of which were signed by 
 the purchaser, and one of them delivered to him, but they differed in 
 the following particulars: that in the one delivered to the purchaser 
 both the agent and the owner were named as parties of the first part, 
 but it was signed by the agent alone in his own name ; and in the one 
 retained by the agent the owner alone was named as the party of the 
 first part, and his name was signed thereto by the agent ; it was held 
 that the contract was not complete so that the purchaser could be sued 
 on the one retained by the agent for the purchase money. Ibid. 
 
 TOO. The acceptance by the owner of the instrument retained by the 
 agent, and the signing his own name thereto, without the assent or 
 knowledge of the purchaser, will not make it binding upon the latter. 
 To make an act amount to a ratification in such a case, the two instru- 
 ments must be capable of ratification by the same act. Ibid. 
 
 710. Indemnity or payment. One member of a firm cove- 
 nanted with the other to pay the debts of the firm, and save the other 
 harmless therefrom. Such a covenant is not one of indemnity merely, 
 but an omission to pay the creditors as their demands fell due would 
 constitute a breach of it. Bye d. Mann, 10 Mich., 291. See also Whed- 
 ocJc V. Bice, 1 Doug., 267, fjad Smith v. Bwrstow, 2 Doug., 155. 
 
 711. An agreement given by principals to their sureties, by which, 
 reciting that in order to save harmless their sureties, they agree to pay 
 the demand secured within thirty days after it comes due, is not one of 
 indemnity merely, and the sureties have a right of action upon it on the 
 failure of their principals to make the payment. HaU i). Nash, 10 Mich., 
 303. 
 
 712. In such action the sureties may recover the amount of the 
 demand whether they have paid it or not. Ibid. 
 
 713. "Where such an agreement is secured by mortgage, and suit is 
 brought to foreclose the same before payment by the sureties, quere 
 whether the Court will in any case see to the application of the money 
 
 91 
 
§ 718 CONTRACTS. 
 
 by the sureties. There is no occasion to do so where it appears that 
 subsequent to the commencement of the suit the complainants have 
 paid the demand secured. Ibid. 
 
 714. One member of a co-partnership sold his interest to his co-part- 
 ner and a third party, who verbally agreed " to see that all the debts of 
 the old firm were paid, and that he, the retiring partner, should not 
 be called upon for any of those debts." HM to be a mere contract of 
 indemnity, upon which the party's remedy was at law. Hdd also, that 
 the agreement was not within the statute of frauds, and the actual sur- 
 render of the party's interest in the firm was a suflicient consideration 
 to support it. Bonehright v. Pease, 3 Mich., 318. 
 
 715. Sutoscriptions lor public purposes. Where a sub- 
 scription is made to raise a fund for educational purposes, and something 
 is done, or some liability or duty assumed in reliance thereon, in order 
 to carry out the object, the promise by the subscription is binding, and 
 may be enforced, though no pecuniary advantage is to result to the 
 promisors. Underwood ». WaXdron, 13 Mich., 73. See also WesUyan 
 Seminary i) FisTier, 4 Mich., 515. 
 
 TIC. But where, by its charter, a college was located at Spring Ar- 
 bor, and a subscription was entered into for the purpose of erecting a 
 college building therefor at Hillsdale, and it did not appear that it was 
 designed as an inducement to the college to endeavor to obtain legisla- 
 tive authority to remove to Hillsdale, and it could not be lawfully 
 removed without such authority, it was held that the subscription was 
 invalid. TTriderwood v. Waldron, 13 Mich., 73. 
 
 717. SjOcality of contract. A bargain was made in New 
 York for liquors which had been sent to Michigan, the purchaser to pay 
 freight and be allowed "outage." The purchaser examined the liquors 
 in Michigan, and took them ; and it was held that the contract was to 
 be regarded as made in, and subject to the laws of Miphigan. Myers v. 
 Oa/rr, 13 Mich., 73. 
 
 718. Teriiimating fty notice. A attract by which parties 
 undertake to pay for the care and board of a lunatic so long as he shall 
 remain in the asylum, and to remove him therefrom whenever his room 
 shall be required for preferred patients, is not terminated by a notice 
 that the parties will no longer be responsible for his care and board. 
 To relieve themselves from liability, they must remove him from the 
 asylum. Wetmore ii. Aldrich, 10 Mich., 515. 
 
 93 
 
CORPORATIONS. § 724 
 
 CORPORATIONS. 
 
 719. Their powers. Corporations liave such powers and ca- 
 pacities as are given to them, and none other; and every abuse of such 
 powers is a violation of the law of their heing, and a forfeiture of their 
 franchise. Attorney General v .Oaldand County Bank, Wal. Ch., 90; 
 PeopU V. OaJd'and County Bank, 1 Doug., 283. And see Orr n. Lacey, 2 
 Doug., 230 ; PeopU v. Eimr Raisin and Lake Erie B. R. Co., 12 Mich., 
 389. 
 
 720. 9.iOcatioii. Accordingly where a hank was located by its 
 charter at Pontiac, and it established an agency at Detroit, where the 
 cashier resided, and deposit^were received, drafts bought and sold, bills 
 discounted, and the bills of the bank put in circulation at such agency, 
 it was held that the establishment of such agency was a violation of the 
 charter. Attorney General v. Oakland County Bank, Wal. Ch., 90 ; Peo- 
 ple V. Oakland County Baiik, 1 Doug., 282. See also Underwood v. 
 
 Waldron, 12 Mich., 73. But it seems that a bank may lawfully have an 
 agency to redeem its bills at a place other than that at which it is 
 located by its charter. 1 Doug., 282. 
 
 721. Contracts in violation of tUe charter are void. 
 Orr V. Lacey, 2 Doug., 230 ; Bank of Michigan o. Mies, 1 Doug., 401 ; 
 Surlbut V. Britain, 2 Doug., 191 ; Smith i). Ba/rstow, 2 Doug., 155. Held, 
 therefore, that where a bank on discounting a bill of exchange cor- 
 ruptly received greater interest than it was authorized by its charter 
 to receive, the bill was void. Orr v. Lacey, 3 Doug., 230. 
 
 722. Where by its charter a corporation is confined to one kind of 
 business, it cannot lawfully engage in enterprises foreign to that busi- 
 ness. A railroad company whose purposes are strictly confined to the 
 completion and maintaining of a railroad, cannot lawfully engage in 
 banking. People v. River Raisin and Lake Erie R. R. Co., 13 Mich., 389. 
 
 723. Po-wer to purchase lands. A corporation having 
 power to purchase and hold real estate for the purpose of their incorpo- 
 ration, entered into an executory contract of purchase, by which they 
 were to make payment at any time within one hundred years, paying 
 taxes and interest in the meantime; and no right to possession was 
 given until payment was made. The Courts must infer, until the con- 
 trary is alleged and proved, that the purchase is for the legitimate use 
 of the corporation. Regents of University -b. Detroit Tourm Men^s Society, 
 13 Mich., 138. 
 
 724. The seal of a corporation aflSxed to a written instrument, is 
 prima facie evidence that it was affixed by proper authority ; and the 
 contrary must be shown by the objecting party. Benedict v. Benton, 
 Wal. Ch., 836. 
 
 93 
 
§ 731 CORPORATIONS. 
 
 . 725. Appointment of agent. A corporation may appoint an 
 agent by parol. The authority of an agent may be inferred from the 
 adoption or recognition of his acts by the corporation, and the acts so 
 recognized or adopted will bind the corporation. City of Detroit v. 
 Jackson, 1 Doug., 106. 
 
 yao. Acts of officers. A corporation is bound by the acts of its 
 oflicers de facto ; and it need not be shown that they were regularly 
 elected in order to render their acts binding. CdkiU v. Kalamazoo Mu- 
 tual Insurance Co., 3 Doug., 124. 
 
 TSy. Power to make by-Ian^s. Where the charter empow- 
 ers the president and directors to make by-laws, the president and a 
 majority of the directors may make them. And an allegation that they 
 were made by the president and directors, is supported by proof that 
 they were made by the president and such majority. Ibid. 
 
 728. A by-law making the whole amount of the premium note to a 
 mutual insurance company collectable on default in paying an assess- 
 ment thereon within thirty days — the money to be paid into the treas- 
 ury of the company to meet past and future losses — ^held a lawful by-law. 
 lUd. 
 
 729. Proof of corporation. On plea of the general issue to 
 an action by a corporation, the corporation must prove its corporate 
 existence as though nvl tid corporation were pleaded. Farmers and 
 Meelianici Bank v. Troy City Bank, 1 Doug., 457. But it is now pro- 
 vided by statute, that it shall not be necessary for any corporation 
 plaintiff, created by or under any statute of this State, to prove on the 
 trial its corporate existence, unless the defendant shall have pleaded in 
 abatement, or given notice imder his plea to the action, that plaintiff is 
 not a corporation ; and shall thereto have annexed an affidavit of the 
 truth of the plea or notice. Comp. L., § 4838 ; ^mitli v. Village of Adrian, 
 1 Mich., 495. 
 
 730. Production of the charter, and proof of acts of user under it, 
 were sufficient to establish the corporate existence, where the charter 
 conferred powers in present! and unconditionally. It was not necessary 
 to make proof of the organization under the charter. CaJiiU v. Kalama- 
 zoo Mutual Insurance Co., 2 Doug., 124. See also Way v. Billings, 2 
 Mich., 397. 
 
 731. Written applications to an incorporated insurance company for 
 policies, the policies issued thereon, and the official bonds of the officers 
 of the company are admissible to prove user. And it would seem that 
 one who effects an insurance with an incorporated company, by the 
 terms of whose charter he, by so doing, becomes a member of the 
 corporate body, and on receiving his policy gives a premium note in 
 consideration therefor, payable to the company by its corporate name, 
 
 94 
 
CORPORATIONS. § 740 
 
 is estopped from denying tlie corporate existence of the company in ap 
 action on the note. Ibid. 
 
 732. The transactions and acts of a corporation may be proved by 
 entries in its books. People v. OaMand County Bank, 1 Doug., 283. 
 
 733. mortgage of franchises. The power of corporations, 
 independent of statutory provisions, to mortgage their franchises con- 
 sidered. Joy D. Jackson and Micldgan Flank Moad Co., 11 Mich., 155. 
 
 734. Certificate of stock promising payment. A cer- 
 tificate of stock issued by a corporation in the ordinary form, except 
 that it contained a promise on the part of the corporation to pay inter- 
 est thereon until the happening of a specified event, constitutes the 
 person to whom it is issued a stockholder and member in the company. 
 MeLaugMin v. Detroit and MUwcmkee Railway Co., 8 Mich., 100. 
 
 735. Power of corporation over members. The cor- 
 poration cannot, by a vote of the stockholders, without the individual 
 assent of the holder, oblige him to receive their bond instead of money 
 for interest upon such certificate. Ibid. 
 
 736. Ratification of acts of officers. Such a, certificate 
 issued by the officers of the corporation is ratified by a resolution of the 
 stockholders at a regular meeting, for the payment of interest thereon 
 in their bonds. Ibid. 
 
 737. Slisnomer in repealing statute. An act repealing the 
 charter of the " Bank of Oakland County,'' cannot be construed to be a 
 repeal of the charter of "The President, Directors and Company of the 
 Oakland County Bank." It is not necessary that a repealing act 
 should correspond exactly, in naming the corporation, with the act of 
 incorporation which it is meant to repeal; but there must be such a 
 correspondence as will leave no doubt of the intention of the legislature. 
 Prople V. Oakland County Bank, 1 Doug., 283. 
 
 738. Forfeiture. If a corporation has forfeited its rights by 
 misfeasance, such forfeiture must be shown by the pleadings ; it is not 
 to be presumed ; the legal presumption is against it. Attorney General 
 V. Bank of Michigan, Har. Ch., 315. 
 
 739. A cause of forfeiture cannot be taken advantage of collaterally, 
 but only by a direct proceeding for that purpose. CahiU v. Kalamazoo 
 Mutual Insurance Co., 2 Doug., 13 i ; People v. Bank of Pontiac, 13 Mich., 
 527. 
 
 740. Waiver of forfeiture. Unreasonable delay to take ad- 
 vantage of a forfeiture may waive it. And where in a bank charter it 
 was provided that the same should be void unless a certain sum of 
 money was paid in as capital stock within two years from its passage 
 it was held, after a delay of five years from that period, that it was too 
 late to institute proceedings for a forfeiture for omission to comply with 
 
 95 
 
§ 748 CORPORATIONS. 
 
 such provision. Pmjik v. OaUand County Bank, 1 Doug., 283. But see 
 the next case. 
 
 Tdl. "Where a corporation has been guilty of such a breach of the 
 condition of its existence or continuance as to authorize a forfeiture of 
 its charter, it cannot legally atone for such misconduct, and avoid the 
 forfeiture by subsequent good behavior. People v. Bank of Pontiao, 13 
 Mich., 537. 
 
 742, A bank became insolvent and suspended operations in 1840, 
 and did not resume again until 1864. Held that the State had not, by 
 laches, lost the right to insist upon the forfeiture. The State shows 
 sufficient diligence, if any is required, if it institutes proceedings and 
 claims the forfeiture within a reasonable time after a resumption of 
 business, or an attempt to resume, by the bank. Ihid. 
 
 'S'43. Forfeitwre for insolvency. The statute — Comp. L., § 
 4854 — making a year's insolvency a forfeiture, is applicable to corpora- 
 tions chartered before its passage. IMd. 
 
 Vi^. A failure to elect directors annually under the charter, 
 does not, it seems, dissolve the corporation ; but the old directors con- 
 tinue in office until new ones are elected in their stead. Cahill v. Kala- 
 nvmoo Mutual Insurance Go., 8 Doug., 134. 
 
 745. Assigfitment by corporation. Where the directors of 
 an insolvent bank, with the assent of a majority, though without the 
 knowledge of some of the stockholders, assigned all the property to 
 trustees for the payment of the corporate debts, preferring particular 
 creditors, it was held that the assignment was valid at common law. 
 Town V. Bank of Biver Raisin, 2 Doug., 530. 
 
 746. It seems that such an assignment does not operate, per se, 
 as a dissolution of the corporation, or a surrender of its franchises ; 
 and that the power to make it, though not conferred by charter, is inci- ' 
 dent to the general powers conferred upon banking corporations. 
 IMd. 
 
 747. Biisolution in equity. The acts providing for proceed- 
 ings in chancery against corporations, and for the voluntary dissolution 
 of corporations— Laws 1837, p. 306 ; Laws 1839, p. 94 ; Comp. Laws, 
 Ch., 145 and 146— are not in the nature of statutes of bankruptcy ap- 
 plicable to corporations. Ibid. And see. Attorney- General v. Bank of 
 Michigan, Har. Ch., 315 ; Attorney-General v. Oakland County Bank, 
 "Wal. Ch., 90. 
 
 748. The primary object of proceedings in chancery against failing 
 corporations, was held not to bfe for the purpose of dissolving the cor- 
 poration, but to protect the assets for the benefit of creditors. The dis- 
 solution of the corporation is merely incidental. Fay v. Erie and Kola- 
 maaoo Baiiroad Bank, Har. Ch., 194. 
 
 96 
 
COUNTIES. § 755 
 
 749. The jurisdiction of chancery over corporate bodies for the pur- 
 pose of restraining their operations, or of winding up their concerns, is 
 based upon and controlled by the statutes. The Court has no such 
 jurisdiction under its general equity powers ; and it will not interfere 
 except where the case is fairly brought within the scope and object of 
 the statute conferring this special jurisdiction. Attorney- Qe-neral v. Bamk 
 of Michigan, Har. Ch., 315. 
 
 COSTS. 
 
 TSO. Depend upon tlie statute. Costs are not: awarded by 
 the common law, 'but depend entirely upon ' statutory provisions. 
 Where no authority is given by statute, there can be no taxation. 
 Booth «. McQueen, 1 Doug., 41. 
 
 751. 'Wlien plaintiff to pay. A plaintiff who, by his declara- 
 tion in the Circuit Court, claims an amount suflScient to confer jurisdic- 
 tion, but only recovers a sran within the exclusive jurisdiction of a jus- 
 tice of the peace, must pay costs to defendant. Strong n. Daniels, 3 
 Mich., 466. 
 
 752. Against body acting judicially. Application in due 
 form having been made to highway commissioners for laying out a 
 road, and they having made an order for laying out a part of it only, 
 which order, on appeal, was affirmed by the township board, the 
 Supreme Court, on quashing these orders, refused to award costs, as 
 the township board was acting judicially on an application giving the 
 commissioners jurisdiction. J'eople v. Township Board of SpringweUs, 13 
 Mich., 434 
 
 COUNTIES. 
 
 753. Organization of. Fractional townships as surveyed by 
 the United States, are townships within the meaning of the clause in the 
 State constitution which provides that organized counties shall not be 
 reduced to " less than sixteen townships, as surveyed by the United 
 States, unless the act providing therefor be submitted to and ratified 
 by the people of the counties. Mice v. Buddiman, 10 Mich., 135. 
 
 754. Officers of. A county may be created and have existence as 
 such, notwithstanding it has no coimty officers. [Maetin, Ch. J.] 
 Carleton v. People, 10 Mich., 350. 
 
 755. Where a new county is created by setting oflf for that purpose 
 organized townships from existing counties, the supervisors of these 
 townships are thenceforth supervisors of the new county ; their pow- 
 
 7 97 
 
763 COUNTY COURTS. 
 
 ers being conferred and duties imposed by the general laws of the 
 State, instead of by the act creating the new county. [Mabtin & 
 Masning, JJ.] Ibid. 
 
 756. It is not absolutely necessary to the existence of a county board 
 of supervisors that there be a county clerk. If there be none, the board 
 may appoint a person to act as its clerk. [Maktik, Ch., J.] Ibid. 
 
 757. Whether those persons can be de facto county officers who are 
 chosen at an election not authorized by law, quere. Ibid. 
 
 75§. Bay county. Construction of the statute authorizing its for- 
 mation. People i>. Burns, 5 Mich., 114. The question of its organiza- 
 tion having been submitted to a vote of the people, the question whether 
 it was ratified by the proper vote is one of fact. Craig v. Grant, 6 Mich., 
 447- 
 
 759. Liability of. A county is not liable for the acts of its board 
 of supervisors in the exercise of their legislative power. Larkin v. 
 County of Saginaw, 11 Mich., 88. 
 
 760. The action of the board in voting money and providing for the 
 erection of a bridge at the expense of the county is legislative in its 
 character j and though the bridge is erected under a contract with the 
 board, and under the personal supervision of a committee of its mem- 
 bers, the county is not liable for damages resulting to an individual 
 by reason of defects in the plan. Ibid. 
 
 761. Removal of county seat. The law which provides for 
 submitting to the electors of a county, at the township meetings, the 
 question of the removal o€ the county seat — Comp. L., §§351, 352, 
 353— if it can be held applicable to cities at all, is incomplete in not 
 providing for a vote of the electors of such cities as hold charter 
 elections atadiflferent time frtwm the township meetings*. Attorney- Gen- 
 eral V. Supervisors of St. Clair, 11 Mich., 63. [The statute has since been 
 amended. Laws of 1863, p, 30]. 
 
 COUNTY CLERK. 
 
 768. The deputy of the county clerk need not sign writs in 
 the name of the clerk. Where a writ was signed " W. M., deputy 
 clerk, in the absence of the derk ; " it was held suflScient. Oalenda/r v. 
 Oloott, 1 Mich., 344 
 
 COUNTY COURTS. 
 
 763. The County Courts, as they existed in 1848, had jurisdietion of 
 actions of ejectment. Wattles d. Warren, 8 Mich., 77. 
 96 
 
COURTS OF THE UNITED STATES. § 770 
 
 764. See the case of Stewart v. HUl, 1 Mich., 365, for a decision on 
 various points of statutory practice in said Court. Held in the same 
 case, that a defendant who, after arrest, applied for and obtained an ad- 
 journment, was too late to oyect to irregularities in the preliminary 
 proceedings on the adjourned day. 
 
 COUNTY TREASUEER. 
 
 765. Buying at tax 8ale§. If a county treasurer having charge 
 of sales of land for taxes, becomes a purchaser himself, the sale is a 
 nullity ; and he cannot be allowed, under the statute, for improvements 
 made by him on the lands purchased. Olute v. Ba/rron, 3 Mich., 193. 
 
 766. Oath by deputy. The oath required to be taken by the 
 collector of taxes on returning delinquent lands, might, under the Sta- 
 tutes of 1838, have been admiijistered by the deputy county treasurer 
 in the absence of the treasurer. Malony v. MaMr, 1 Mich., 86 ; 3 
 Doug., 433, same case. See also, Comp. L. §879. 
 
 767. Order for specific taxes. A county clerk drew an order 
 on the State Treasurer, payable to the order of the county treasurer, for 
 specific tax moneys due the county. This order was indorsed over by 
 the county treasurer to an attorney appointed by the board of super- 
 visors to receive the money, and the attorney presented it to the Auditor- 
 General and applied for his warrant on the State Treasurer for the 
 amount. Held, that the order was sufficient. People v. Auditor- Oeneral, 
 9 Mich., 141. 
 
 COURTS OF THE UNITED STATES. 
 
 76§. Process from. The Federal Government has authority 
 to regulate and control the execution of process issuing from its own 
 Courts, irrespective of the process acts of the States. Chamberlain v. 
 Lyell, 3 Mich., 448.. 
 
 769. The Proeess Act of Congress of Miy 19, 1838, having been 
 madJe applicable to the States subsequently admitted by the act of 
 Av^st 1, 1843, IS to be construed as adopting such laws of said States 
 on the subject as were m. force at the last mentioned date. GorTiam t, 
 Wing, 10 Mich., 486. 
 
 770. Wlien territorial courts c;eased. The District and 
 Circuit Courts of the territory of Michigan remained unaffected by the 
 organization of the State government until the offices of the Judges were 
 abolished by Congress by the legislation to take effect on the admission 
 of Michigan into the Union. Scott v. Detroit Young Men's Society's 
 lessee, 1 Denig., 119. 
 
 99 
 
§ 776 CRIMINAL LAW. 
 
 771. Transferring suits to. A citizen of another State being 
 sued in the State Court, caused the ease to be transferred to the United 
 States Court. Plaintiff then discontinued, and brought a new suit in the 
 State Court, joining a citizen of the State as co-defendant. Issue was 
 joined, and the case went to trial, and the plaintiff was then allowed 
 to discontinue as to the citizen of the State thus joined, and to pro- 
 ceed and take judgment as to the other. Held, that as the proceedings 
 were a manifest fraud, with a view to deprive the defendant of his 
 right to remove the case to the United States Court, the order allowing 
 the discontinuance was erroneous ; and the judgment was reversed. 
 Ycmkey V. Bichwrdson^ 9 Mich., 539. 
 
 COVENANT. 
 
 772. In replevin bond. It is competent in giving a statutory 
 replevin bond, to add to the condition a covenant of the same tenor, and 
 to bring action upon it in case of a breach. In such an action damages 
 should be recovered instead of the penalty of the bond. Prentiss v. 
 Spalding, 3 Doug., 84 
 
 773. §everal>le covenants. "When the covenants or conditions 
 in a deed are severable, the deed may be good in part and void as to 
 the residue. Kirby v. Ing&rsoll, Har, Ch., 173. 
 
 CRIMINAL LAW. 
 
 1. Offenses Against the Pebson. 
 
 774. Homicide : self-defense. The degree of force, or the 
 means to be employed, in protecting one's person or personal liberty, 
 must depend on circumstances. To justify a person in taking the life 
 of another, it must appear that his safety required him to do so. Peapfe 
 v. Doe, 1 Mich., 451. 
 
 775. The necessity for taking human life need not be one arising out 
 of actual and imminent danger, in order to excuse the slayer ; but he 
 may act upon a belief, arising from appearances which give him reason- 
 able cause for it, that the danger is actual and imminent, although he 
 may turn out to be mistaken. His guilt must depend upon the circum- 
 stances as they appeared to him. Pond v. People, 8 Mich., 150. 
 
 776. Homicide in resisting an assault not made with felonious in- 
 tent, is excusable where the danger to be resisted is to life, or of serious 
 bodily harm of a permanent character, and unavoidable by oth«r means 
 in the power of the slayer so far as he is able to judge at the time. But 
 he is bound, if possible, to get out of his adversary's way, and has no 
 right to stand up and resist if he can safely retreat or escape. Ibid. 
 
 100 
 
CRIMINAL LAW. § 785 
 
 TtY.— <lefen§e of dwelling. A man assaulted in his d-welling 
 is not obliged to retreat, but may use such means as are absolutely 
 necessary to repel the assailant from his house, or prevent his forcible 
 entry even to the taliing of life. Ibid. But a mere trespass wiU not 
 justify a homicide. People v. Horton, 4 Mich., 67. 
 
 77§. — defense of servant. The same circumstances which ex- 
 cuse or justify homicide in defense of one's self, ■will excuse or justify it 
 in defense of his servant. Pond v. People, 8 Mich., 150. 
 
 779. — resisting^ forcible felony. "When a forcible felony is 
 attempted against person or property, the person resisting the attempt 
 is not obliged to retreat, but may pursue his adversary, if necessary, till 
 he finds himself out of danger. But he may not properly take life if 
 the evil may be prevented by other means then within his power. It 
 is immaterial to the justification whether the act was a felony at the 
 common law, or made such by statute. Ibid. 
 
 780. — ^preventing riot. Private persons may forcibly interfere 
 to suppress a riot or resist rioters ; and they may justify homicide in so 
 doing, if they cannot otherwise suppress them, or defend themselves, 
 their families or property. Ibid. 
 
 781.— mortal blow beyond State boundary. Man- 
 slaughter, committed by a mortal blow given on the River St. Clair, 
 beyond the boundary line between the United States and the Province 
 of Canada, and within a county in said Province, from which death 
 ensued within the State, may be constitutionally punished (§ 5944 of 
 Comp. L.,) by the Courts of this State, but is not within the jurisdiction 
 of the United States Courts. Tyler v. People, 8 Mich., S20. See Admib- 
 AiiTT AND Maritime JuBisDicTioiir. 
 
 782. — resisting violent arrest. Where an officer, attempting 
 to make an arrest on reasonable suspicion of felony, is asked for his 
 authority, and says he has a warrant, but refuses to produce it, and 
 makes no explanation whatever, but makes the arrest with circum- 
 stances of violence, and the person arrested resists and kills the officer, 
 he is not guilty of murder in so doing. Drennan v. People, 10 Mich., 169. 
 
 783. — intent to murder. In a prosecution for assault with 
 intent to murder, the actual intent to kiU must be found, and that under 
 circumstances which would make the killing murder. Maker v. People, 
 10 Mich., 212. 
 
 784. — malice. Malice aforethought is as essential an ingredient 
 of the ofiense of murder as the act of killing ; and the presumption of 
 innocence applies equally to both ingredients. Hence the burden of 
 proof as to each rests upon the prosecution. Ibid. 
 
 785. Where deceased had been absent from the neighborhood of the 
 prisoner some eight or ten months preceding the alleged ofi'ense, it was 
 
 101 
 
§ 793 CRIMTISrAL LAW. 
 
 held competent for the prosecution to show the state of feeling between 
 the prisoner and deceased immediately preceding such absence. DiUin 
 V. People, 8 Mich., 357. 
 
 T86. Defendant being charged with the murder of his wife, evidence 
 that before the alleged murder he had been arrested on charge of a 
 crime committed upon her, is competent as tending to show hostile 
 relations existing between them, which would bear upon the question 
 of motive, and tend to prove malice. Washburn i. People, 10 Mich., 373. 
 
 787. — provocation. If a homicide be committed under the fc- 
 fluence of passion, or in heat of blood, produced by an adequate or 
 reasonable provocation, and before a reasonable time has elapsed for 
 the blood to cool and reason to resume its habitual control, and is the 
 result of the temporary excitement by which the control of reason was 
 disturbed, rather "than any wickedness of heart or cruelty or reckless- 
 ness of disposition, the offense is manslaughter only, and not murder. 
 Maker v. People, 10 Mich., 313. 
 
 788. To reduce the offense to this grade, the reason must, at the 
 time of the act, be disturbed or obscured by passion to an extent which 
 might render an ordinary man, of fair average disposition, liable to act 
 rashly, or without due deliberation or reflection, and from passion 
 rather than judgment. Ibid. 
 
 789. Whether the provocation was adequate or reasonable, and 
 whether a reasonable time had elapsed for the passion to cool and rea- 
 son to resume its control, are questions of fact for the jury. Ibid. 
 
 790. Evidence that the prisoner saw the person attacked with the 
 prisoner's wife, under such circumstances as to induce the belief that 
 adultery had been committed ; that he followed them in hot pursuit, 
 and on the way was informed thait they had committed adultery the day 
 before ; that he followed the person into a saloon in a stati of excite- 
 ment, and there attacked him, is proper evidence, as tending to show 
 that the act was committed in consequence of the passion excited by 
 the provocation, and in a state of mind which would have given to the 
 homicide, had death ensued, the character of manslaughter only. Ibid. 
 
 791. It is proper evidence, also, because the facts stated constitute a 
 part of the res gestae. Ibid. See as to res gestae also, People v. Potter, 5 
 Mich., 1. 
 
 792. One who is the mere agent of the husband for the purpose of 
 detecting his wife's adulteiy, cannot justify or excuse the killing of the 
 suspected adulterer by proof of his previous adultery with the employ- 
 er's wife. People v. Horton, 4 Mich., 67. 
 
 793. — degrees of murder. The statute does not change the 
 common law definition of murder, but divides the offense into degrees ; 
 and where it is sought to have the jury convict of murder in the first 
 102 
 
CRIMINAL LAW. § 803 
 
 degree, the burden of proof is upon tlie prosecution to show such facts, 
 in addition to the act of killing, as will make the act murder in the first 
 ■degree. People v. Potter, 5 Mich., 1 ; People v. Scott, 6 Micli., 287. 
 
 794. A verdict of guilty of murder generally, without specifying 
 whether of the first or second degree, is erroneous. Jhtty v. People, 6 
 Mich., 373. 
 
 795. On an indictment. for assault with intent to murder, it is imma- 
 terial whether the murder intended would, if consummated, have heen 
 murder of the first or second degree. People e. Scott, 6 Mich., 387. 
 
 796. Rape. Carnal knowledge of the person of a female over ten 
 _year8 of age, unaccompanied with any circumstance of force or fraud, 
 does not constitute the crime of rape, either at common law or by stat- 
 ute. CrossweR v. People, 13 Mich., 437. 
 
 797. Where therefore a man had carnal connection with a woman 
 over ten years of age, who was a willing participant in the act, it was 
 held not toibe a rape, notwithstanding the testimony showed that she 
 had not at the time an intelligent understanding. Ibid. 
 
 79§. — of child. The carnal knowledge and abuse of a female 
 child under the age of ten years, is rape, both at common law and by 
 statute. People v. McDonaM, 9 Mich., 150; [Crosswdlv. People, 18 Mich., 
 437.] 
 
 799. An indictment charging assault with intent to carnally know 
 and abuse a female child under the age of ten years, charges an assault 
 with intent to commit rape ; and under it the defendant may be found 
 guilty of a simple assault. Ibid. 
 
 800. — consent. A child under ten years of age has no legal ea- 
 ,pacity to give consent to carnal knowledge, and her consent does not 
 waive the assault. Ibid. 
 
 801. mingling poison witb food .: intent. The intent to 
 commit an injury as a means to the accomplishment of another ultimate 
 and main unlawful object, is not, by the existence of such ultimate de- 
 sign, taken out of the operation of the statute. People ». Ca/rmichad, 5 
 Mich., 10 ; People v. Adwards, 5 Mich, 33. 
 
 802. A person who engages in the prosecution of an unlawful de- 
 sign against another, and uses poison to accomplish such design, which, 
 by its natural action, produces a greater injury than he anticipated, is 
 not, by his ignorance of the probable extent of such injury, relieved 
 from criminal responsibility for the act. Ibid. 
 
 803.— injury. Wherever there is a positive physical effect pro- 
 duced, and the poison administered operates to derange the healthy 
 organization of the system, temporarily or permanently, there is an 
 injury which, whenever it is reasonably appreciable, may be regarded 
 as within the statute. Vnd. 
 
 103 
 
§ 811 CRIMIlirAL LAW. 
 
 S04. Exposiuir cbild : allegation of relationsliip, &c. 
 
 An indictment under § 5741 of Comp. Laws, which provides that "If 
 the fether or mother of any child, or any other person to whom any 
 such child shall have been confided, shall expose such child," &c., must 
 allege either that the defendant was the father or mother of the child, 
 or that it has been confided to him; and this allegation must be sus- 
 tained by the proofs Shannon v. People, 5 Mich., 71. 
 
 805. — ^proof of custody. To sustain an allegation that the 
 child was confided to the defendant, it is not necessary to show that it 
 was delivered into his immediate and manual custody ; if it were deliv- 
 ered to some other person employed by him to receive it, and upon the 
 faith of representations made by him to the mother, inducing the belief 
 on her part that it would be under his control and direction, it would 
 be sufficient. lUd. 
 
 §06. — intent. The intent to abandon the child, on the part of the 
 person exposing it, has no reference to the probability or improbability 
 of relief to the child from other hands, and it is wholly independent of 
 any intent to injure. But the exposure and the intent to abandon must 
 both concur to complete the ofiense, and the exposure must be such as 
 may subject the child to the hazard of personal injury. IMd. 
 
 807.^exposMre. If the child be left at such time, in such place,, 
 and under such circumstances, as would rendisr a parent or other person 
 of ordinary prudence and humanity reasondbTy appreJiermve of personal 
 injury to it, then the hazard may be sai'd to exist, and it is an exposure 
 within the statute, and if accompanied with the intent wholly to aban- 
 don, the crime is complete. But if there be no reasonable ground to 
 fear or apprehend such injury, then the exposure does not exist. Hid. 
 
 808.— who may commit the offense. Any one receiving 
 the care and custody of the child from a parent, guardfan or master, 
 even for a temporary purpose, would come within the statute as a 
 party to whom the child was confided. Ibid. 
 
 809. But one not sustaining such a relation to the child, cannot be 
 convicted of the principal ofiense under said section 5741 on proof of 
 facts showing]only that he counselled, aided or abetted the connnission 
 of the offense by others. lUd^. 
 
 3. Offenses Against Pbopehtt. 
 
 810. liarceny : out of the State. Whether the State can 
 lawfully provide for the punishment in Michigan of persons who, hav- 
 ing committed a larceny in a foreign country, bring the stolen property 
 into this State, quere. Mornssey ii. People, 11 Mich. 337. 
 
 811. If the statute for that purpose — Comp. L., § 5797 — is valid, 
 whether an information under it is sufficient which charges the defend- 
 
 104 
 
CRIMINAL LAW. § 81T 
 
 ant in the ordinary form -with a larceny committed in this State, q'uere. 
 Ibid. 
 
 S13.— description of property. In an indictmeDt under the 
 statute of 1840, (p. 43, § 1), which provided for the punishment " of lar- 
 ceny, hy stealing, of the property of another, any hank note, bank hill," 
 &c., it was held that a description of the property stolen as bank notes or 
 bank bills merely, was sufficient. People v. Kent, 1 Doug., 42. See also, 
 Comp. L., §6059. 
 
 813. The word cliattds in such an indictment denotes property and 
 ownership ; and an allegation that bank biUs were the goods and chat- 
 tels of a person named, is a sufficient averment that they were his pro- 
 perty. Ibid. 
 
 814.— is a felony. The statute— Comp. L., § 5954^-which defines 
 the word felony, as used in statutes, to mean an offense for which the 
 offender on conviction shall he liable to be punished by death, or by 
 imprisonment in the State prison, is only a legislative definition of the 
 term as used in those provisions of the statute where neither the par- 
 ticular offense, nor its grade, is otherwise indicated than by the use of 
 this term, and where, therefore, the definition became necessary, as it 
 was not intended to be used in the common law sense. Those acts 
 which were felonies at the common law remain such, notwithstanding 
 this section.jthough the punishment may be less than here mentioned. 
 And therefore larceny, though of property to the value of less than $35, 
 being a felony at common law, is still a felony in this State. Drennan 
 V. People, 10 Mich., 169. 
 
 815, Receiving stolen goods : aiding. The statute — Comp. 
 L., § 5764 — has enlarged the conamon law offense of receiving stolen pro- 
 perty, knowing the same to be stolen, by making persons who shall 
 aid the principal felon in the concealment of the property, equally 
 guilty with him who receives such property. People v. Reynolds, 2 Mich., 
 423. 
 
 816. An indictment under said section, for aiding in the concealment, 
 &c., is supported by proof of acts of the aider, which wiU assist the 
 principal felon in converting it to the use of the thief, or which wlU aid 
 him in preventing its recovery by the owner ; and it is not necessary to 
 prove that the property was actually hidden or secreted anywhere. 
 Ibid. 
 
 817 — res gestae. Where one was charged with having received 
 goods knowing them to he stolen, and a witness testified that he was 
 present at an interview between the prisoner and the alleged thief a 
 few days prior to her arrest ; it was held that what was said by the 
 alleged thief at that interview about sending the goods to the house of 
 the prisoner, where they were afterwards found, was proper evidence 
 
 105 
 
826 CRIMINAL LAW. 
 
 to show the circumstances under which she received them. Du- 
 rant v. People, 13 Mich., 351. 
 
 81S — possession not proof of gnilt. Where one is charged 
 with receiving stolen goods knowing them to be stolen, the mere pos- 
 session of the goods by him, without evidence tending to show guilty 
 knowledge, can have no tendency to establish his guilt, but must be 
 presumed to have been innocent. Ibid. 
 
 S19. Embezzlement by State Treasurer : description. 
 In an information against the State Treasurer under §5771 of Comp. L., 
 it is not necessary to set forth the particular kind'of funds embezzled, or 
 to identify them by specifying the source whence received. People v. 
 McEinney, 10 Mich., 54. 
 
 820. — bill of particulars. It is not erroneous for the Court to 
 refuse to order the prosecution to furnish a bill of particulars under the 
 general charge contained in such an information, where it appears that 
 a preliminary examination has been had, and the prosecuting officer 
 states that he shall confine himself to the same charges as on such -ex- 
 amination. Ibid. 
 
 §21. But such order ought never to be refused where the Court 
 can see any reason to believe the particulars necessary to inform the 
 defendant of the particular transactions intended to be proved against 
 him, so as to enable him to meet them. Ibid. 
 
 §22. — evidence of receipts. The account books kept in the 
 office of defendant during his official term, and purporting to show all 
 liis receipts and disbursements as State Treasurer, are admissible te 
 show that the sums alleged to have been embezzled have not been 
 CBedited to the State ; and this notwitlistanding no part of the book is 
 in his handwriting. Ibid. 
 
 §23. So also are his annual reports as Treasurer, printed by the 
 State printer under his direction. Ibid. 
 
 §24.— treasurer indictable. Said section 5771, which pro- 
 vides for the punishment of " any officer, clerk, or any other person 
 employed in the treasury of this State," who shall commit any fraud or 
 embezzlement therein, includes within the terms used the State Trea- 
 surer. Ibid. 
 
 §25— what is the treasury. The word " treasury " as used in 
 said section, is not to be understood in the sense of locality, as descrip- 
 tive of the particular building within which the Treasurer keeps his 
 principal office or place of official business ; but moneys are to be con- 
 sidered as in the State treasury whenever or wherever they are in 
 the official custody of the Treasurer, or subject to his direction and con- 
 trol. Ibid. 
 
 826. It is sufficient to allege in the information that the money 
 106 
 
CRIMINAL LAW. § 835 
 
 charged to have been embezzled was at the time the property of the 
 State, and in the treasury, or in the official custody or control of the 
 Treasurer, without showing how it got there. Ibid. 
 
 827.— evidence of embezzlement. The omission by the 
 Treasurer to charge himself with the receipt of moneys in the county 
 where his office is required to be kept, or a denial of its receipt there, 
 would be evidence to go to the jury of embezzlement in that county. 
 lUd. 
 
 82§. Any act by the Treasurer, by which money should be abstracted 
 from the treasury, or diverted from the use of the State, with intent to 
 apply or appropriate it to his own use or benefit, would constitute em- 
 bezzlement. Ibid. 
 
 829. — venue. As such an act might be done by the Treasurer 
 without at any time being personally present where the money hap- 
 pened to be, it was held not error for the Court to charge the jury that it 
 was not necessary that the money should have been in the county 
 where the Treasurer's office is required to be kept, to warrant their 
 finding that he embezzled it in that county. I hid. 
 
 830.— wliat is a payment to the State. Where the Trea 
 surer received from a railway company several drafts for a tax due the 
 State, which drafts were payable at different times, it was held that the 
 payment of each of these drafts was a payment of so much into the trea- 
 sury; and it was not necessary that all should be paid before any part 
 could be regarded as in the treasury. lUd. 
 
 831. Burg:Iary •: curtilage. A bam standing eighty feet from 
 a dwelling-house, in a yard or lane with which there was a communica- 
 tion from the house by a pair of bars, was held to be within the curti- 
 lage. PeopU ». Taylar, 2 Mich. 250. 
 
 832.— description. Under the statute— Comp. L., § 5756— which 
 punishes " every person who shall break and enter, in the night time, 
 any office, shop, railroad depot or warehouse, not adjoining to or occu- 
 pied with a dwelling-house, " with intent to commit a felony, an in- 
 formation which fails to describe the building entered as " not adjoin- 
 ing to or occupied with a dwelling-house," is fatally defective. Koster 
 V. People, 8 Mich., 431. 
 
 833. Conspiracy, to cheat of real estate, is indictable, as 
 well as one to cheat of personal property. People v. BicJiards, 1 Mich., 
 216. 
 
 834. The offense consists in the unlawful agreement, and not in the 
 acts which follow it. Ibid. And see. People v. Clark, 10 Mich., 310 ; 
 Alderman v. People, 4 Mich. 414. It is not necessary either to allege or 
 prove any overt act was done in pursuance of the agreement. Ibid.. 
 
 835.— mergred in felony. A conspiracy to commit a felony, 
 
 107 
 
843 CRIMINAL LAW. 
 
 when executed, is merged in tlie felony ; but a conspiracy to commit a 
 misdemeanor is not merged in the misdemeanor. People v. RicTw/rds, 1 
 Mich., 316. 
 
 836, — indictment. In the indictment the agreement or combi- 
 nation must be set out, but the means to be used in executing the con- 
 spiracy need not be set forth unless they are a component part of the 
 offense ; as where the combination and the object to be attained are not 
 in themselves unlawful, but the means to be used, to effect the object, 
 are unlawful. Where the conspiracy is to cheat an individual of his 
 lands and goods, the indictment need not state the means by which it 
 was to be accomplished. Ibid. 
 
 837. If a conspiracy be to commit an offense known as such at the 
 common law, so that by describing it by the term by which it is gen- 
 erally known, the nature of the offense is clearly indicated, then it will 
 only be necessary to use such term in describing the object of the con- 
 spiracy. Alderman V. People, 4 Mich., 414. 
 
 838. If there be a combination to do an act not in itself unlawful, but 
 which it is agreed to accomplish by criminal or unlawful means, those 
 means must be particularly set forth, and be such as constitute an 
 offense, either at common law or by statute. Ibid. But if it be to do 
 an unlawful act, the indictment must set forth the unlawful thing agreed 
 upon, but need not specify the means to be resorted to for the purpose. 
 People 11. GlciA-k, 10 Mich., 310. 
 
 839. — the pretences. Cheating and defrauding are punishable 
 only when effected by false tokens and pretences, and the words of 
 themselves do not import an offense. An indictment for conspiracy to 
 cheat and defraud, must therefore set out the false tokens to be used in 
 effecting the contemplated fraud. Alderman v. People, 4 Mich., 414. 
 
 840. But an allegation that the parties conspired " by divers false 
 pretences, subtle means and devices, to obtain and acquire to themselves, 
 of and from one W. a sum of money, to wit, ten dollars of the moneys of 
 said W., and to cheat and defraud him the said W. thereof, " is suffi- 
 cient. People V. Clark, 10 Mich., 810. 
 
 841. It is not essential to the offense that the cheat designed be by 
 means of a token, writing, or similar device, or even that the means 
 should be of any specific character. The crime may be complete not- 
 withstanding the conspirators leave the particular means by which the 
 fraud is to be accomplished to be determined by circumstances. Ibid. 
 
 842. It is not essential that the pretences by which a fraud is accom- 
 plished be expressed in words. Falsehood when deliberately acted is the 
 same as spoken falsehood. Ibid. 
 
 843. False pretences : intent. The act of procuring, by false- 
 hood, the indorsement of a promissory note, is not, in itself, a false pre- 
 
 108 
 
CRIMINAL LAW. § 850 
 
 tence within the statute, vinless done with intent to defraud. The pro- 
 secution must therefore show something more than the falsehood and 
 procuring the Indorsement therehy, before a conviction can be had. 
 PeopU V. GetcTuM, 6 Mich., 496. 
 
 §44. "Where an intent is made the gist of an offense, that intent 
 should he shown by such evidence as, uncontradicted, will fairly author- 
 ize it to be presumed beyond a reasonable doubt. Ibid. 
 
 845, Defendant was put on trial for false pretences in procuring the 
 indorsement of the prosecutor to a promissory note, by the falsehood 
 that a former note for the same amount, indorsed in like manner, was 
 .destroyed. Held, that evidence offered by the defendant that he was a 
 partner of the prosecutor ; that the latter was bound by agreement to 
 indorse for him t® ian amount considerably larger than the two notes 
 ibut had refused to ^perform the agreement, and that the money obtained 
 on the notes was ased in their business for their joint benefit, was ad- 
 missible, as tending to disprove the presumption of intent to defraud. 
 Ibid. 
 
 §46, Attorney, neglecting to pay over. An indictment 
 against an attorney, for ^collecting and receiving, in the capacity of an 
 attorney at law, moneys belonging to the prosecutor, and neglecting 
 to pay the same to him when demanded, &c., but not distinctly averring 
 ■that the relation of attorney and client existed between the defendant 
 ■and the prosecutor, is insufficient. PeopU i). Try on, 4 Mich.,' 665. 
 
 3. Offenses Against Public Justice. 
 
 §47. Perjury : materiality. The indictment must aver that 
 the false allegation was material to the matter in question, or it 
 must clearly appear by the indictment to have been so from the state- 
 ment alleged to be -false. People D. OoUier, 1 Mich., 137. 
 
 §4§. Where the indictment stated that " it became and was material 
 to ascertain the truth of ihe matters hereinafter alleged to have been 
 ■sworn to" — stating what the defendant swore to — the averment was 
 lield insufficient. Ibid. 
 
 §49. But a general aH«gation of the materiality of the testimony is 
 sufficient ; and it is not neeessaiy to set forth so much of the proceed- 
 ings as win sho.w it to be mateiial. ffoch «. People, 3 Mich., 552. 
 
 -§30. Defendant -was indicted for iaving falsely made oath that one 
 S. •" did feloniously steal, take and carry ja way a rifle, of the value of 
 fifteen dollars, of the property" of defendant. It was objected to the in- 
 dictment that the matters set forth w.ere not facts, but conclusions of 
 law ; but the objection was held not well taken. Ibid. 
 
 109 
 
§ 860 GKI^INAL LAW. 
 
 4. Offenses Against ^m^stity, Morality and DECENcrsr. 
 
 831. Seduction. An act of carnal intercourse with an unmarried 
 woman, to which her assent was obtained by a promise of marriage made 
 at the time, and to which, without such promise, she would not have 
 yielded, constitutes the oflfense of seduction under the statute. People 
 V. Millspaugh, 11 Mich., 278. 
 
 852. Where a woman was seduced on a promise of marriage, and the 
 intercourse was afterwards brokenoff, but was renewed again on the 
 promise of marriage being renewed, and only in consequence of such 
 promise, it was held that a prosecution might be commenced for the se- 
 duction at any time within one year from such last intercourse. Ibid. 
 
 833. Incest : indictment. An information for incest, which 
 charges the crime to have been committed with one H ; " she, the said H., 
 being then and there the daughter" of the accused, is sufficient without 
 also averring, in the words of the statute, that the parties were "within 
 the degrees of consanguinity within which marriages are prohibited," 
 &c. People ». Hicks, 10 Mich., 395. 
 
 ^ 854.— proof of relationship. The defendant's admission that 
 he is the brother of the girl's mother, and his treatment as such by the 
 family, are competent evidence. People v. Jenrwss, 5 Mich., 305. 
 
 855. Incest does not depend upon the legitimacy of the parties, or 
 upon whether they are relatives of the whole or of the half blood. IMd. 
 
 856. — proof of former acts. In case of a crime consisting of 
 illicit sexual intercourse, which can only be committed by the concurrent 
 acts of two persons of opposite sexes, evidence of previous familiarities 
 and acts of intercourse is admissible, as tending to show concert, and a 
 common design of both parties to commit the act charged, and habitu- 
 ally to indulge the criminal desire as opportunity might offer. lUd. 
 
 857. Bigamy: proof of marriage. Where the first mar- 
 riage is alleged to have taken place in another State, proof of a valid 
 marriage according to the laws of that State must be given. And there 
 being evidence that the law of that State on the subject is in statute 
 form, it cannot be presumed, against the innocence of defendant, that 
 the statute is"like our own. People v. Lambert, 5 Mich., 349. 
 
 858. Cohabitation as man and wife, and the acknowledgment of the 
 parties, are not sufficient evidence of the marriage in such case. IWd. 
 
 859. Nor is a certificate of marriage, or the record thereof, compe- 
 tent in a criminal case, where the defendant is entitled to be confronted 
 with the witnesses against him. Ibid. 
 
 860. Baw^dy houses. Keeping a house of ill-feme was a " crim- 
 inal offense " within the meaning of the constitution of 1885, which 
 declared that " no person should be held to answer for a criminal offense 
 
 110 
 
CRIMINAL LAW. § 8715 
 
 unless on presentment of a grand jury, except," &c. ^augMer v. People, 
 2 Doug., 334. 
 
 861. Indictment is the appropriate remedy for this offense, both at 
 the common law and under the statute. Welch v. StowM, 3 Boug., 332- 
 
 S62.— abating:. The common council of Detroit, under the power 
 giren by the charter to prevent and suppress houses of ill-fame, are not 
 authorized, by ordinance and resolution, to require the city marshal to 
 demolish a house occupied as a house of ill-fame, and adjudged by the 
 council to be a common nuisance. Ibid. 
 
 863. Neither have individuals the right to > abate the nuisance by 
 destroying the building. A nuisance is to be abated by the removal of 
 that in which the nuisance consists; which in this case is the use to 
 which the building is put, and not the building.itself. lUd.. 
 
 864. Obscene publications : indictment. In an indict- 
 ment for publishing a bawdy and obscene paper, it is not necessary to 
 get forth the obscene matter on which the people rely for a conviction. 
 People V. Qira/rdin, 1 Mich., 90.' 
 
 865. Lewd and lascivious cohabitation is a joint offense, 
 of which both parties musts; be guilty or neither. Ddany v. People, 10 
 Mich., 241. 
 
 866. And both must be jpined as defendants in the same informa- 
 tion or indictment, unless one of the parties be unknown, or since dead. 
 Ibid. 
 
 867. But though both mast be jointly charged, the triais may be 
 separate ; and one may be convicted and sentenced before the other is 
 tried. Ibid. 
 
 4.-rOKGBRT AND COTINTEBFEITING. 
 
 868. Counterfeiting: coin : indictment. An indictment 
 for knowingly having in possession instruments adapted and designed 
 for making counterfeit eoin, tO'wit, Mexicam dollars, with intent to use 
 the same, need not allege thati the defendant was not employed is the 
 mint of the United States. Savian v. Peop^, 1 Doug., 207. 
 
 869. — States may punisb. The power vested in Congress by 
 the Federal Constitution to provide for the punishment of counterfeit- 
 ing the current coin of the United States, is not exclusive, but may be 
 exercised by the several States concurrently with Congxess. Ibid.^ 
 
 870. An indictment for violating the statute of the State against such 
 counterfeiting, properly charges the offense as committed against the 
 sovereignty of the people of the State. Ibid. 
 
 871. Forgery-y &e. ; uttering. The presentation of a forged 
 draft or order for money, to* the persom to whom it flarports to be 
 directed, for payment thereofj^is an uttering and. publisfiing, notwith^ 
 
 111. 
 
CRIMINAL LAW. 
 
 standing payment is refused, and the draft returned to the presenter. 
 People V. Brigham, 2 Mich., 550. 
 
 872. — money order. A draft made payable to the bearer — no 
 payee being mentioned therein — is .nevertheless an order for money, 
 within the meaning of the statute. Ibid. 
 
 873.— po§$e$$ion of bills with intent, &c. Section 5809 
 of Comp. L., which provides that every person who shall have in his 
 possession a counterfeit bill, with intent to utter or pass the same, or to 
 render the same current as true, knowing the same to be counterfeit 
 shall be punished, &c., embraces two distinct offenses.; one, which con- 
 sists in having in possession a counterfeit bill with intent to utter or 
 ^ass the same as true; the other, in having it in possession, with intent 
 to sell or otherwise dispose of it as a counterfeit bUl, to be rendered cur- 
 rent, or uttered or passed as true. People d. Stewart, 5 Mich,, 243. 
 
 874. On the trial of an indictment for the second of those offenses, 
 evidence of the possession by defendant of -counterfeit bills on other 
 TDanks is inadmissible. Ibid. 
 
 875. The words " as true," as used in said statute in defining the first 
 of said offenses, refer both to "the intent to pass " and to "render the 
 8a:me current ;" and an indictment charging the possession of such bills, 
 "with intent to utter and pass the ^me,'' omitting .the words "as true," 
 is insufficient. People v. Stewart, 4 Mich., 655. 
 
 876. — indictment : setting forth instrument. The act of 
 1855 relating to indictments — Comp. L., § 604S — ob.viates the necessity 
 of setting forth in the indictment a copy of the alleged forged paper or 
 counterfeit bill. Ibid. 
 
 877.— description of genuine bills. It is not essential in 
 an indictment for counterfeiting bank bills, to describe the genuine 
 bills of the bank to which the forged bills are assimulated. Ibid. 
 
 878-— foreign banK. Under the statute — § 5811 of Comp. L.— 
 which provides that "the lawful existence of any bank out of this State 
 shall be presumed upon evidence that such bank is actually engaged in 
 the business of a bank," evidence of general reputation in the community 
 of the existence of a bank in another State, and Idiat its bills pass 
 current in the business transactions of the day, is admissible as tend- 
 ing to show that there was de facto a bank " engaged in the .business of 
 a bank." Jennings i). People, 8 Mich., 81. 
 
 879. Being admissible, its weight is for the jury, who may be satis- 
 fled with it. Ibid. 
 
 880. An averment in the indictment, tlmt the bank whose bills are 
 counterfeited is an incorporated company, in a place and State men- 
 tioned, is equivalent to an averment 'that it Is estaSUslied'in such -State. 
 People V. Stewart, 4 Micfh., 655. 
 
 112 
 
CRIMINAL LAW. 
 
 5. Offenses Agaikst the Public Health. 
 
 881. Bfnisance : ivhat is. A person is not punishable criminally 
 for maintaining a dam whereby no greater nuisance is created, and of 
 no different character, than would have existed without it. Beach v. 
 People, 11 Mich., 106. 
 
 882. On the trial of an indictment for -causing a nuisance by a mill 
 dam, the question whether the stream as dammed is as healthy to the 
 neighborhood as it would be if the mill pond was drawn down, the 
 river channel ditched, the water drained from the low lands, and the 
 whole converted into a beautiful meadow, is not admissible as a test of 
 nuisance. Ibid. 
 
 883. — CTidence of former acquittal. On trial for nuis- 
 ance by keeping up a mill dam, it is competent for defendant to show 
 that the former owners of the mill were indicted for keeping up the 
 same dam, tried and acquitted ; and that the question litigated on the 
 former trial was -Whether 'the dam was a nuisance or not. The acquittal 
 would be evidence that the dam was not a nuisance at that time, 
 though not that it has not since become such. Orippen v. People, 8 
 Mich., 117. 
 
 884.— judgment ; errors in. Verdict of guilty being ren- 
 dered in such case, a judgment or order thereupon entered, that the 
 dam be removed, and that a writ issue to the sheriff for its removal, is 
 such a final judgment or determination as errorwill lie upon. Ibid. 
 
 885. The order of removal cannot precede, but must be exercised at 
 the time of imposing punishment by fine or imprisonment, and form 
 part of the same judgment ; and no such punishment having been 
 imposed, the order to remove the nuisance was erroneous. Ibid. 
 
 886. But the errors assigned inthe case being allTsased on decisions 
 of the Court preceding the judgment, the Supreme Court will look into 
 the errors assigned, and if any of them are sustained, will reverse the 
 judgment on that account, and order a new trial, instead of ordering 
 -an absolute reversal for the error in the judgment itself Ibid. 
 
 6. Offenses Against PmsLic Policy. 
 
 887. Illegal banking. The mere paying out of a draft in the 
 similitude of a' bank bill, without being in any way connected with, 
 responsible for or interested in it, except as might be inferred from the 
 single fact of paying it out, is not sufficient to establish the offense of 
 illegal banking under § 5899 of Comp; L. Pmple «. WeUs, 8 Mich., 104. 
 
 888. Selling liquors^ Indictment for selling whisky with- 
 out license, alleging it to be spirituous liquor, sustained under R. S. 
 1838, ..p. 203, § 1. People V. Webster, 2 Doug., 92. 
 
 8 113 
 
CRIMINAL LAW. 
 
 8§9. The penalty for selling without license, might, under the Stat- 
 utes of 1846, he recovered 'by indictment ; the penalty being $100. Peo- 
 ple V. Ha/rt, 1 Mich., 467. 
 
 S90. — election of penalties. Where suit was brought for the 
 penalty, and the plaintiff declared in the fomr given by the statute, it 
 was held that he could not, on the trial, be compelled to elect the pen- 
 alty or penalties he would seek to recover. Smith v. Visage of Adman, 
 1 Mich., 495. , 
 
 891. — sale by a partner. Where two persons as partners 
 were keeping a recess where liquors were sold without license, it was 
 held that the sale by one was the act of both, and might be given in 
 evidence against the other in an action against him alone for the pen- 
 alty. lUd. 
 
 893.— under Statutes of 1846. To recover the penalty given 
 by R. S. of 1846, ch, 41, § 1, it was not necessary to show that defend- 
 ant assumed to act as tavern keeper or common victualler. IWd. 
 
 893. In an action for such pena,lty, it was not necessary for the 
 prosecution to prove that defendant had no license, or that the question 
 of license or no license was submitted to the people in pursuance of 
 said diapter. lUd. 
 
 7. Offekses Against Election Laws. 
 
 894^. Inspectors refusingf to receive vote. Since the act 
 offl8S9 requiring the registration of voters, an information against 
 inspectors of an election for refusing to administer to a person offering 
 to vote-one of the oaths prescribed by Comp. L^. g 49, is fatally defec- 
 tive if itfails to allege that the name of the person ofler&ig to vote was 
 duly registered.. Watflet t. People, 13 Mich., 446, 
 
 S.MlSCELLANEOTJS MaTTEBS. 
 
 895. ForeigiH oflTenses. Whe£I]«r the fraudulent acts of a 
 debtor, occurring withoutthe State, can be made the basis of proceed- 
 ings against him in this^ StitCr, under tlie Fraudulent Debtor's Act, 
 qu&re. Bromleyo. People,! 'iiiitiiii,A12.. See also, ante 781, 810, 811. 
 
 896. As a general principle the criminal laws of no nation can ope- 
 rate beyond its territorial linuta^and to give any government the right 
 to punish any act or transaction as a: crime, it must have occurred 
 within those limits. i%opfo v. Tyler, 7 Miai,,.161. 
 
 897. Kon-performance of oflScial duty. Indictment for 
 non-performance of an o£Scial act, must set forth such a state of facts as 
 under the law imposed upon defendant the duty to perform the act. 
 WcaOes V. Peojiie, 13 Mich., 446. 
 
 898. Arrest for felony. A constable who has knowledge that. 
 
 114 
 
€BIMINAL LAW. § 905 
 
 a -warrant has been issued for the arrest of a person for felony, may 
 himself lawfully make the arrest, without having the warrant in his 
 possession. But he should inform the person arrested of the facts, or 
 at least of the offense for which he is arrested. Drennan v. People, 10 
 Mich., 169. See ante 782. 
 
 899. Commitment for trial. A warrant for commitment, 
 charging that L. " did, on the 30th day of April, instant, enter the pos- 
 session of C, and wrongfully and feloniously take and drive away from 
 the possession of said C. forty-flve sheep and twenty lambs, of the value 
 of $180," shows no criminal offense. Matter of Leddy, 11 Mich., 197. 
 
 900. A commitment for trial is invalid, if the magistrate fails to fix 
 the amount of baiL Ibid. 
 
 901. Examination preliminary to information. The 
 defendant may waive his right to have a preliminary examination 
 before an information is filed against him, as well when called upon to 
 plead to the information as when brought before the examining magis- 
 trate. And if at the time of pleading he make no objection on the 
 ground that such examination has not been had or waived, he must be 
 understood to admit that it has been had, or that he has waived, or 
 then intends to waive it. . Wmhburn v. Peoj^, 10 Mich. 372 ; fii'c** s. 
 People, 10 Mich., 395. 
 
 903. It is not necessary that the information should show on its fece 
 that a preliminary examination had been had or waived. If the de- 
 fendant intends to insist upon the want of such examination, he should 
 take the objection by plea in abatement, or by motion to quash based 
 upon affidavit. Ibid. 
 
 90S. But where an examination has been had before a magistrate 
 on a criminal charge, and the accused is dischisgpd,, an information 
 cannot afterwards be lawfully filed against him fee the same offense. 
 Morriaey v. People, 11 Mich., 327. 
 
 904. And if an information is filed after stash examination and dis- 
 chairge, the. defen(tentjaay prove those faetainibarof the prosecution, 
 under the plea of not guilty,- Ibid. 
 
 905. The examination is designed/. fefaceompllsU, to some extent, the 
 purpose of a presentment by a graaid) jiffly ;: but not that the complaint 
 or warrant shall stand in the place- of a. formal presentment, nor that in 
 the Circuit Court the prosecutihgt officer should be limited by it in the 
 mode of charging the offense: S<>>lbng as he does not undertake to pro- 
 ceed against a person fbraidi^rent transaction than that to which the 
 examination relates, it is*, competent for him to put his information in 
 such form as, in his opinion^ v^ill^ enable him to try the offense upon the 
 merits in the way most eflfectually to advance the ends of justice. 
 Annia v.. People,. 13 Miieh.,. 511.. 
 
 118 
 
§ 915 CRIMINAL LAW. 
 
 906. Where two or more are jointly complained of and bound over, 
 separate informations may be filed against them in the Circiiit Court, 
 and they may be used as witnesses against each other. Ibid. 
 
 907. Verification of information. The verification by the 
 oath of the prosecuting attorney, that lie "knows the contents of the 
 foregoing information, and that he has good reason to believe and does 
 believe the same to be true as therein set forth," is sufficient. Waslibum 
 V. People, 10 Mich., 372. 
 
 90 §. Orand jurors: challenges. Grand jurors drawn and 
 appearing upon summons, are presumed to be legally qualified and 
 properly returned ; and the Court wiU not interfere to set aside the 
 panel, or any part of it, unless upon cause shown by a person having a 
 right to question its legality. Thay&r v. People, 3 Doug., 417. 
 
 909. A challenge either to the array or to the poll can only be made 
 •by a person who shows that he is under prosecution, and his case about 
 jto be brought before the jury. Ibid. 
 
 910. Resummoning grand Jury. Where a grand jury have 
 ■finished their ibusiness, and been disniissed before the adjournment 
 of the Court without day, they may be resummoned at any time during 
 the term, to inquire into an offense committed subsequent to their dis- 
 charge ; and grand jurors who were originally summoned, but did not 
 appear, may ibe resummoned, and on appearing and being sworn and 
 impaneled, may act with their fellows. Findley «. People, 1 Mich., 234. 
 
 911. Juror subsequently appearing. A grand juror who 
 appears after the jury have been sworn and received the charge of the 
 Court, may or may not be sworn, in the discretion of the Court, where 
 there are enough grand jurors without him. Ibid. 
 
 912. Indictment. An inuendo in an indictment is bad when 
 there is nothing previous, to which it can refer. People v. CoUier, 1 
 Mich., 137. 
 
 913. Where a statute, enumerates several, elements as combining to 
 create a crime, the crime cannot properly .be described without in- 
 cluding all those elements. Koster v. People, 8 Mich., 431. 
 
 91-4. — one bad count. Where an indictment contains two 
 counts, each for the same offense, one of which is bad, the other, being 
 good, is suflicient to warrant a general verdict of guilty, and judgment 
 thereon. Shannon v. People, 5 Mick, .71.; .People v. McKinney, 10 
 Mich., 54. , 
 
 915. — amendment. A prosecuting attorney, having discovered 
 
 an error in an indictment, corrected it without leave of the Court, and 
 
 the case went to trial on the indictment as corrected. Attention being 
 
 called to the alteration on the trial, the Judge decided tlia't the alteration 
 
 116 
 
CRIMINAL LAW. § 930 
 
 in a material point would vitiate the indictment. Held, that this ruling 
 was erroneous. People ». Cook, 10 Mich., 164. 
 
 916. The defendant might object to allowing such amendment to 
 stand, and the effect of his objection would be that the indictment must 
 stand in its original shape. But the prosecuting attorney could not 
 treat it as a nullity ; and if tlie cause was tried and defendant acquitted 
 on the indictment as amended, the acquittal would be a bar to a subse- 
 quent prosecution for the same offense, provided the indictment, as it 
 stood at the time of the trial, was sufficient. Ibid. 
 
 917.— omission of matter of form. Under the statute of 
 1855 relative to indictments, if an indictment or information contains 
 direct and unequivocal averments of such facts — not being mere evi- 
 dence — as lead immediately and of necessity to a single and inevitable 
 conclusion, the omission to draw that conclusion will not vitiate the 
 pleading. JiJvans v. People, 12 Mich., 27. 
 
 91§. An information for murder was in the full common law form of 
 indictments, except that in the conclusion, where it was averred that 
 the respondent " did kill and murder," the name of the person killed 
 was omitted. The respondent was convicted of manslaughter ; and it 
 was held that, under this statute, the information was sufiicient to sus- 
 tain the conviction. Ibid. 
 
 919. Election of oflTenses. On trial of an information for 
 incest, the prosecutor may, before the evidence is introduced, select any 
 one act of criminal intercourse which occurred within the jurisdiction of 
 the Court, and within the period of the statute of limitations applicable 
 to the offense, as the one upon which a conviction will be sought. But 
 when evidence has been introduced tending directly to the proof of one 
 act, and for the purpose of procuring a conviction upon it, the prosecu- 
 tor is deemed to have made his election, and that act must thereafter be 
 considered the one charged against the defendant, and for which alone 
 he can be found guilty. People v. Jenneas, 5 Mich., 305. 
 
 920. Cbarging accessories as principals. By § 6065 of 
 Comp. L., it is provided that the distinction between an accessory 
 before the fact and a principal, and between principals in the first and 
 second degree, in cases of felony, is abrogated ; and all persons con- 
 cerned in the commission of a felony, whether they directly commit 
 the act constituting the offense, or aid and abet in its commission, 
 though not present, may be indicted, tried and punished as principals^ 
 as in case of misdemeanor. Held, that in all cases where only persons 
 of a certain class, or standing in a certain relation, are competent to 
 commit the offense, the indictment against aiders and abettors, not be- 
 longing to such class, or standing in such relation, must set out the 
 aiding and abetting, in which alone the crime consists, and which, in 
 
 117 
 
CRIMINAL LAW. 
 
 8ueh ease, is the only principal offense witliin tlie meaning of this stat- 
 ute. Shannon «. People, 5 Mich., 71. 
 
 921. Plea In abatement. A plea in abatement to an indict- 
 ment, that states several distinct facts having no relation to or depend- 
 ence upon each other, is bad for duplicity. It should be certain to every 
 intent, and conclude by praying judgment of the indictment, and that it 
 may be quashed ; and it must be verified by affidavit. FincUey v. People, 
 1 Mich., 234. 
 
 932. Jary. It is not error for the Court, after the jury have re- 
 tired to consult of their verdict, to permit them to have the statutes 
 defining the offense in their room, although the same is objected to by 
 defendant's counsel. Findley v. People, 1 Mich., 234. 
 
 923. — distinction§ betireen cliallengeg. The distinction 
 between challenges for favor and challenges for cause is practically 
 abolished by the statute, (Comp. L., § 4400), all challenges being now 
 for cause, and to be tried in the same manner ; and when there is no 
 dispute about the facts upon which a challenge is based, the question 
 arising upon it is purely one of law, and open to review upon excep- 
 tions. Holt V. People, 13 Mich., 224. 
 
 924. — doubt of juror's indifference. In a criminal case if 
 the examination of a juror upon challenge leaves a reasonable doubt of 
 his impartiality, the prisoner should have the benefit of the doubt, and 
 the juror be excluded. Ibid. 
 
 925.— -burden of gliowing partiality. A person called as a 
 juror is presumed to be qualified and impartial ; and the party challeng- 
 ing assumes the burden of proving the contrary. He does not relieve 
 himself of that burden until he has made out a prima facie case, or, in 
 criminal cases, such a case as leaves the partiality of the juror in reason- 
 able doubt. Ibid. 
 
 926.— opinion a§ cau§e of challenge. The law does not 
 require a juror to be entirely unimpressed with any opinion as to the 
 guilt or innocence of the person on trial, but simply that he shall not 
 have an opinion of such a fixed and definite character as to leave a bias 
 on his mind which will preclude his giving due weight to the presump- 
 tion of innocence. Ibid. 
 
 927. The statement of one called as a juror that he has formed a 
 partial opinion as to the guilt or innocence of the prisoner, from rumors 
 heard in the streets, but not a positive 'opinion, does not establish his 
 incompetency. Ibid. 
 
 92§. Accomplices as witnesses. The credibility of an ac- 
 complice, like that of any other witness, is exclusively a question for 
 the jury, who may convict on such testimony alone, without confirma- 
 tion. People V. Jenness, 5 Mich., 305. 
 118 
 
CRIMINAL LAW. § 935 
 
 929. An accompUce who consents to become a witness for the peo- 
 ple on the trial of his associates, must disclose all that his associates 
 may have said or done in relation to the oflFense, and cannot be excused 
 from testifying to statements made by him to his attorney on the ground 
 of their being privileged communications. Alderman v. People, 4 Mich., 
 414. 
 
 930. Wife of eo-defendant a witness. Under act No. 125 
 of 1861, the wife of a defendant in a criminal prosecution, may be ex- 
 amined as a witness on behalf of a co-defendant of her husband. Mor- 
 rissey v. Peojile, 11 Mich., 327. For the former rule see PuUen v. People, 
 1 Doug., 48. 
 
 931. Defendant's statement. The defendant in a criminal 
 case is not entitled, under the act of 1861 (S. L., p. 168) to be sworn as a 
 witness on his own behalf, but only to make a statement to the Court 
 or jury without oath. People d. Thomas, 9 Mich., 314. 
 
 932. The purpose of said act was to give every person placed on 
 trial on a charge of crime an opportunity to Ikake full explanation to 
 the jury in respect to the circumstances given in evidence which are 
 supposed to have a bearing against him, and to make such further state- 
 ments as he may deem material. Annis v. People, 13 Mich., 511. 
 
 933. Such statement is for the consideration of the jury, who may 
 give it such credit, in whole or in part, as under all the circumstances 
 they think it entitled to. Maker s. People, 10 Mich., 212 ■; Durant v 
 People, 13 Mich., 351, And it is error for the Court to instruct the jury 
 that where it conflicts with the testimony of an animpeaelied witness 
 they must believe the latter in preference. Durant v. People, 13 Mich., 
 351. 
 
 934. Defendant being on trial for the larceny of a mare, made his 
 statement in reference to material points in the case, but said nothing 
 on the subject of the mare alleged to have been stolen. His counsel 
 thereupon, without defendant's knowledge, submitted to the Court for 
 approval in writing a suggestion as follows : " I call your attention to 
 the subject of the stolen mare, so that you may make a statement in re- 
 ference to it or not." The Judge refused to permit the suggestion to 
 be made. Held, that defendant was entitled to this assistance from his 
 counsel, and that the suggestion in the manner proposed should have 
 toeen allowed. Annis v. People, 13 Mich., 511. 
 
 935. The error in refusing it was not cured by the defendant being 
 afterwards allowed to go upon the stand to make a further statement, 
 in which he said only, " I know nothing about the stealing, and had 
 nothing to do with it; " as the defendant evidently needed the aid which 
 counsel proposed to give as much at this time as he had needed it 
 before. Ibid. ■ 
 
 119 
 
§ 944 CRIMINAL LAW. 
 
 936. Exception§ Before sentence. A bill of exceptions in a, 
 criininal case, Being signed by tbe Judge and filed with the clerk, be- 
 comes, when the case fs brought into the Supreme Court by writ of 
 error, apart of the record for review in that Court. Shcmnonv: People^ 
 5 Mich., 36. 
 
 937> Convictions in the Becorder'& Court of Detroit, for offenses- 
 against city ordinances, cannot be brought before the Supreme Court 
 for reviewon exceptions before sentence, under Ch. 197 ofCbmp. L. 
 People, 1). Jackson, 8 Mich. 110. 
 
 93S. "Where the case comes up on exceptions before sentence, under 
 Chap. 197, Comp. Laws, the sufficiency of the information in matters of 
 substance is involved, to the extent, at least, of determining whether it 
 charges a criminal offense. People v. Wattles (reported as "Wattles v. 
 People), 13 Mich., 446. 
 
 939. Bail after exceptions. "Where exceptions in a criminal 
 case are transmitted to tlje Supreme Court for review before sentence, 
 that Court has no powerto admit the defendant to bail. People v.. Mc- 
 Kiriney, 9 Mich., 444. 
 
 940. Sentence. Under the statute wiich requires Courts sen- 
 tencing offenders to the Ref6rm School, to certifyto the keeper thereof 
 the age of the person sentenced as nearly as can be ascertained by tes- 
 timony, a Court which has certified the age of a convict to be under sis 
 teen years, must be conclusively presumed, in all collaiteral inquiries', 
 to have performed its duty correctly. Matter of Mason,. S Mich., 70. 
 
 941. Such Court cannot afterwards, on the ground of mistake in the 
 convict's age, treat the sentence as void, and proceed to give a new 
 one. Ibid. 
 
 942. Imprisonment in Detroit House of Correction, 
 Under the act establishing the Detroit House of Correction (S. L., 1861, 
 p„ 268),, where a Court sentences an offender to imprisonment in the 
 House of Correction instead of the county Jail, the sentence cannot be 
 for a longer term than would have been lawful in the jail. EUiott «. 
 People, 13 Mich.,. 365. 
 
 943. Sentence in excess of ,aut£iority. "Where the only 
 error in a criminal case is in the judgment rendered, there can neither 
 be a new trial nor a new judgment rendered.. "Where therefore a prir 
 soner is sentenced to imprisonment for a longer period than & allowed 
 by law, the Supreme Court on en-or can only reverse the judgment an(J 
 discharge the prisoner. Elliott v. People, 13 Mich., 365. See Grippen 
 V. People, 8 Mich., 117. 
 
 944. Illegal commitment. A fine was imposed by a justice 
 of the peace, with imprisonment for ten daj^s in default of payment. 
 Payment not being made, the justice issued his warrant, directing that 
 
 130 
 
DAMAGES. 
 
 defendant be imprisoned until the fine was paid, or until lie was dia- 
 eharged by due course of law. Held, that as the warrant did not follow 
 the judgment, it was clearly iii excess of jurisdiction, and void. LaBoe 
 «. Boeser, 8 Mich., 537. 
 
 CURTESY. 
 
 945. The legislature has the power to cut off the right of curtesy 
 initiate before it becomes vested. Hatliorn v. Lyon, 2 Mich., 93. [See 
 Comp. L., §§ 2803, 3291, and the subsequent law of 1855 gg 8292, et 
 seq.] 
 
 DAMAGES. 
 
 946. Genei-al rule in actions on contract. In actions 
 on contract, the party complaining can recover such damages only as 
 are shown to be the natural and proximate consequence of the breach 
 complained of, and not such as arise from circumstances so far out of 
 the ordinary course of nature, or human affairs, that they could not 
 fairly be presumed to have been anticipated by the parties at the time 
 of making the contract. Ola/rk v. Moore, 3 Mich., 55. See Burrill v. W. 
 T. and Saginaw Solar Salt Co., 14 Mich. 
 
 947. Entire sale of g^oods : only a part deliTered. 
 Plaintiff made a contract for delivery of certain goods as an entirety. 
 He delivered a part only ,' but the defendant retaining them, plaintiff 
 brought suit for the value. There being no evidence of their value ex- 
 cept the contract of sale, it was held no ground for reversing the judg- 
 ment that the Court instructed the jury that plaintiff was entitled to 
 recover the contract price for the quantity delivered. Clark v. Moore, 3 
 Mich., 55. 
 
 948. Piircliase for special purpose. By the contract of 
 purchase the vendors were to furnish the cordage "necesssary to rig a 
 vessel" the vendee was then building. It was held that this designa- 
 tion of the use to which the cordage was to be put, being merely to de- 
 signate the quantity to- be furnished, and not an undertaking that the 
 vendee should have it for that purpose, the vendee could only bo allow- 
 ed as damages for non-delivery the difference between the contract 
 price and the market value, rbid. 
 
 949. Vendor refusing to complete sale. Plaintiffs bought 
 hogs of defendant, paying ten dollars down, and were to pay the bal- 
 ance on delivery. Defendant refused to deliver, and plaintiffs sued. The 
 market value of the hogs at the time of the refusal was no more than 
 plaintiffs were to pay. Plaintiffs on the trial claimed to recover a loss 
 
 121 
 
953 DAMAGES. 
 
 -which they had sustained by reason of not having the hogs to ship with 
 others then on hand, upon cars hired by them for the purpose after the 
 purchase was made ; but it was held that, as the contra,ct of sale was 
 not made with reference to any such extraordinary liability, the plain- 
 tiffs could only recover the ten dollars paid and interest thereon. 
 GvMy V. JUajor, 12 Mich., 368. 
 
 950. To create such extraordinary liability, there must, in every case, 
 be something in the terms of the contract, read in the light of surround- 
 ing circumstances, which shows an intention on the part of the vendor 
 to assume an enlarged engagement, a wider responsibility than is as- 
 sumed by the vendor in ordinary contracts for the sale and deUvery of 
 merchandise. Ibid. 
 
 951. Intere§t as damages. In an action for the non-delivery 
 by defendant, at the time agreed upon, of an article purchased and paid 
 for by plaintiff, the jury may, without proof of special damage, award 
 interest on the price of the article from the time when it should have 
 been, until it actually was, delivered. Edwards v. Sanborn, 6 Mich., 
 348. 
 
 953. Order to manufacturer countermanded. An 
 order for an article from a manufacturer being countermanded after 
 work had been done and materials used towards its , construction, the 
 value of the labor upon the materials is not the proper criterion for his 
 damages, since this labor may have increased the value of the materials, 
 in which case the manu&cturer, still owning them, is compensated to 
 the extent of such enhanced value ; or it may have diminished such 
 value, and then payment for the labor, will not be adequate compensa- 
 tion. The question whether the labor has enhanced or diminished the 
 value of the materials is necessarily one for the jury in estimating the 
 damages. Sosmer v Wilson, 7 Mich,, 294 
 
 953. Shipment delayed. By a contract between plaintiffs 
 and defendants, the latter bound themselves to convey, from Saginaw 
 to Chicago, six vessel loads of lumber, at a specified price, as follows : 
 One in August, two in September, two in October, and one in No- 
 vember. Defendants carried but five, as follows : One in August, 
 one in September, one in October and two in Kovember. Freights 
 rose slightly in October, and largely in November. In an action for 
 neglect to carry the sixth cargo, there being no evidence of any agree- 
 ment by the parties, or election by defendants, to apply the extra 
 cargo carried in November to the default in September or October, 
 it was held that they had a right to have it stand as a substituted per- 
 formance for the cargo which they failed to carry in October : and that 
 plaintiffs would be entitled to such damages only as they had sustained 
 122 
 
DAMAGES. § 959 
 
 by the failure of defendants to carry one of the cargoes which they were 
 bound to carry in September. Lord v. Strong, 6 Mich., 61. 
 
 954. Liiquidated damages. The principle at which the law 
 aims in awarding damages is that of just compensation for the injury 
 sustained ; and the parties will not be permitted by express stipulations 
 to set this principle aside. Jaquifh v. Hudson, 5 Mich., 123. 
 
 955. In determining whether a sum named in a contract to be paid 
 on a breach is to be regarded as a penalty, or as liquidated damages, 
 the question is not what the parties intended, but whether the sum fixed 
 is in fact in the nature of a penalty ; and this is to be determined by the 
 magnitude of the sum, in connection with the subject matter ; and not 
 by the words or understanding of the parties. Ibid. 
 
 956. Where from the nature of the contract, and the subject matter 
 of the stipulation, for the breach of which the sum is provided, it is ap- 
 parent to the Court that the actual damages for a breach are uncertain 
 in their nature, difficult to be ascertained, or impossible to be estimated 
 with certainty ; and where the parties themselves are more intimately 
 acquainted with all the peculiar circumstances, and therefore better able 
 to compute the actual or probable damages than Courts or juries from 
 any evidence which can be brought before them; — the law in such cases 
 permits the parties to ascertain for themselves, and provide in the con- 
 tract, the amount of damages which shall be paid on a breach, and 
 adopts their estimate as the best and most certain mode of ascertain- 
 ing the actual damage, or what sum will amount to a just compensa- 
 tion, md. 
 
 957. In the cases where the law allows the parties to determine the 
 damages for themselves, their intention as expressed in the contract is 
 the governing consideration. And the reason for allowing them to fix the 
 amount of damages in the one class of cases, and denying it in the 
 other, is the same, namely : the law adopts the most practicable mode 
 of ascertaining the actual damage or just compensation. Ibid. 
 
 958. An agreement in selling out an interest in an existing business, 
 not to engage in a rival business in the same place for three years, is 
 one in which the parties can agree upon the damages which shall be 
 recovered on a breach ; and a stipulation therein for a " forfeiture of 
 the sum of $1,000, to be recovered by the said [purchaser] as his 
 damages,'' is an agreement for liquidated damages which will be en- 
 forced by the Courts. Ibid. 
 
 959. But where one party agreed to draw for another a quantity of 
 timber at one dollar fifty cents per thousand feet ; one doUar per thou- 
 sand of which was to be advanced, and the remainder to be " settled, 
 fixed and liquidated damages," in case the contract was not completed ; 
 It was held that the sum so fixed was to be regarded as a penalty ; since 
 
 123 
 
§^ 967 DAMAGES. 
 
 othei-wise the nearer the contract was completed the greater the 
 damages to he recovered ; while if the party should fail to draw any 
 of the timber there could be no recovery. Dwiiis v. Freeman, 10 Mich., 
 188- 
 
 960. Where by the terms of a contract a sum is mentioned as liqui- 
 dated damages for the non-performance of several distinct stipulations of 
 very different degrees of importance, and this sum is to be payable 
 equally on a failure to perform the least as of that to perform the most 
 important, or the whole of them together, it is in legal effect a penalty, 
 and not stipulated damages. Daily v. lAtclijidd 10 Mich. 29. 
 
 961. Oeneral irnle in tort§. Except in those actions where 
 punitory or exemplary damages may be given, and those whose princi- 
 pal object is the establishment of a right, and where nominal damages 
 may be proper, the only just theory of an action for damages, and its 
 primary object, are, that the damages recovered shall compensate for 
 the injury sustained. Allison v. Chandler, 11 Mich., 542. 
 
 962. Liatittide of inquiry. Where from the nature of the case 
 the amount of the damages in an action of tort cannot be ascertained 
 with certainty, or only a part of them can be so estimated, all the facts 
 and circumstances of the case, having any tendency to show damages, 
 or their probable amount, may be placed before the jury, so as to en- 
 able them to make the most intelligible and probable estimate which 
 the nature of the case will permit. Ibid. 
 
 963. The distinction between the rule in actions on contract, and 
 those of actual, aggressive tort, pointed out. Ibid. 
 
 964. When market value not a test. Where by reason of 
 defendant's trespass the plaintiff is deprived, for the remainder of his 
 term, of premises leased by him, he is not limited in his recovery of 
 damages to such sum as the term might be worth to others, or the 
 difference between the rent he was paying and the fair rental of the 
 premises, if they were of much greater and peculiar value to him on 
 account of the business he had established, and the resort of customers 
 to that particular place, or the good will of the place in his trade or 
 business. Ibid. 
 
 965. And where, in consequence of the trespass, the plaintiff was 
 obliged to remove to another place of business, he is entitled to show, 
 in an action for the trespass, that his business fell off in ^consequence, 
 and how much. Ibid. 
 
 966. Profits lost. As a general thing, in an action purely of 
 tort, where the amount of profits lost by the injury can be shown with 
 reasonable certainty, they are not only admissible in evidence, but 
 they constitute, thus far, a safe measure of damages. Ibid. 
 
 967. Evidence of past profits in the same business at that place 
 
 124 
 
DAMAGES. § 974 
 
 may be given, and allowed such weight by the jury, in determining the 
 actual loss, as they think it entitled to. Ihid. 
 
 96§. Crood faitli of defendant. If trespass was committed 
 while the defendant was acting in good faith, and under an honest be- 
 lief that he had a legal right to do the act complained of, the plaintiff 
 ia entitled to recover only the actual damages sustained by him, and not 
 damages of a punitory or exemplary character. Ibid. 
 
 969. But it is immaterial whether he actually contemplate the dam- 
 ages which result or not. He must be held to contemplate aU the dam- 
 ages which legitimately follow from his illegal act. IMd. 
 
 970. Landlord destroying demised premises. Trespass 
 for destroying a store leased by iplaintiff from defendant, whereby the 
 former was deprived of its use, and prevented from carrying on his 
 business. The declaration was silent on the subject of the tenancy. 
 Held, that it was not competent for plaintiff to prove and recover as 
 damages the amount and value of repairs made by him upon the store 
 prior to the tresjjass, but that he might recover for those made to coun- 
 teract an attempt upon the [property by 'defendant before its final de- 
 molition. Oliandler a Allison, 10 Mich., 460. 
 
 971. It was«ompeteilt for plaintiff to show that, before the trespass, 
 he had underlet portions of the premises, and at what rates ; as such 
 evidence went to show whether the portion he retained and occupied 
 was held by him at an advantageous rate, and whether, therefore, his 
 
 • rights were worth anything. Ibid. 
 
 972. It was also competent for him to show that after the trespass 
 he procured another store for his business, which was the best he could 
 obtain for the -purpose, but less advantageous than the one destroyed. 
 Ibid. 
 
 97S. And where the declaration alleged that plaintiflfs store was 
 rendered uninhabitable, and that plaintiff was, up to the commencement 
 of the suit, hindered and prevented from carrying on his business, it 
 was held competent to give evidence, under this declaration, of a 
 partial deprivation of business, which would have been total had no 
 other building been attainable. Ibid. 
 
 974, TrebJe damages in trespass. Section 4717 of Compiled 
 iLaws authorizes one 'who is ejected in a forcible or unlawful manner 
 from lands or tenements, to recover of the wrong doer three times the 
 amount of damages. The plaintiff averred that being in possession of 
 certain premises, the defendant entered upon, took possession of, 
 and ejected him therefrom, &c. ; and also, that at the same time he took 
 possession of and converted to his own use certain personal property 
 described. Plea, the general issue. General verdict for plaintiff; Held, 
 that the averment as to the personal property was not mere matter of 
 
 125 
 
DAMAGES. 
 
 aggrayation of the evictioii, but of a distinct cause of action ; and that 
 the verdict being general, the plaintiff was not entitled to have it 
 trebled as he would have been had he declared for the entry and evic- 
 tion only. Thayer v. Sliarlock, 4 Mich., 173. 
 
 975. The statute giving treble damages against one who intention- 
 ally cuts down or carries off the timber, &c., from the land of an- 
 other, was not framed to protect mere possessory rights, but to give 
 the owner of the fee the ri^t to sue, under the form of trespass, for 
 injuries to his inheritance. It is, therefore, not a defense to the action 
 that defendant had disseized the plaintiff, though it may prevent treble 
 damages. Acheyv. HuU, 7 Mich., 433. 
 
 976. Where such action is brought for cutting down timber, the 
 plaintiff is entitled to recover the amount by which the value of the 
 estate is diminished by its destruction, and not merely the value of the 
 trees. Ilnd. 
 
 977. Action by one Joint oirner. Where the proof given 
 in such action without objection only shows plaintiff to own an undi- 
 vided half of the premises, but no plea in abatement has been inter- 
 posed, the non-joinder of the other as plaintiff only goes to apportion 
 the damages. And on error, where -it is not objected that entire dam- 
 ages were assessed, the Court must Jpresume they were apportioned. 
 Ibid. 
 
 97S. TroTer : sale by defendant as evidence of valne. 
 Where the defendant was sued in trover for logs which he had cut 
 without authority on plaintiff's land, and sold, it was held that, in the 
 absence of evidence that the sale was for more than the real value, it 
 was proper to award as damages the price for which the logs were sold, 
 and interest thereon. Symes v. Oliver, 13 Mich., 9. 
 
 979. — auction sale as evidence of value. Evidence of 
 what the property brought at an auction sale made shortly after the 
 alleged conversion, is competent as having some tendency to prove 
 value. Smith v. MitchelX, 12 Mich., 180. 
 
 980.— deducting prior liens. Trover by assignee for con- 
 version of property levied upon by defendant, by virtue of executions 
 against the assignor. Evidence on behalf of defendant, that property 
 levied upon was held and sold under a prior levy, is admissible, to show 
 that defendant had not damnifled the plaintiff, and had not converted 
 the goods. lUd. 
 
 9§1. So also is evidence admissible to show that goods levied on 
 were held and sold for railroad charges which were a prior lien. 
 Ibid. 
 
 9S3.— adding former Judgment. One whose property had 
 been wrongfully taken from him replevied ft, but being non-suited in the 
 126 
 
DAMAGES. 
 
 replevin suit, defendant had judgment against liim for the value of the 
 property. Plaintiff then sued in trespass for the taking of the 
 property, and it was held that he was entitled to recover in this suit 
 not only damages for the detention of the property while defendant held 
 it, but also its value as assessed in favor of defendant in the replevin 
 suit. Samland v. Parker, 11 Mich., 103. 
 
 983. Trover for note. Where defendant has converted a pro- 
 missory note belonging to plaintiff, and the Court is satisfied that the 
 note was available at its nominal amount to the plaintiff, he may re' 
 cover that amount, notwithstanding the maker is proved not to have 
 property from which collection might be enforced by execution. Hose 
 v. Lmms, 10 Mich., 483. 
 
 9§4. Refusing to obey subpoena. In an action far damages 
 occasioned by defendant's non-attendance as a witness in obedience to a 
 subpoena, plaintiff is entitled to recover any damages immediately con- 
 sequential upon such non-attendance ; like that occasioned by the post- 
 ponement of the trial in consequence of the failure to attend. Prentiss 
 e. Webster, 3 Doug., 5. 
 
 9§5. Evidence In mitigation. In an action of tort, every- 
 thing that may properly be considered by the jury in mitigation of 
 damages, may be given in evidence under the general issue. Ddeeam, v, 
 Bates, 1 Mich., 97. 
 
 986. Province of the Court and Jury. In an action for 
 false imprisonment the jury may find such damages as they think ap- 
 propriate for the arrest and detention, as well as any special damages 
 which are lawfully proved to their satisfaction ; and it is error in the 
 Court to confine them to damages for mere loss of time. Pane z, 
 MitcMl, 13 Mich., 63. 
 
 987. This is so even though there is evidence that the confinement 
 was only nominal, ..and to a considerable extent under the plaintiff's 
 own control. The jury are to judge of all the facts; and if they find 
 that he was his own jailor in a voluntary martyrdom, he has no sub- 
 stantial grievance to complain of. Ibid. 
 
 988. Allegation of special damage. Action for false im- 
 prisonment, by one who had been arrested on a void execution. The 
 declaration alleged that plaintiff was greatly hindered and prevented 
 from performing and transacting his necessary affairs and business, and 
 from engaging and embaiting in business which he might and would 
 otherwise have embarked in. Plaintiff proved that his business was 
 collecting and securing claims. He had given bonds for the jail limits 
 on being arrested, and he was allowed to show that his business occa- 
 sionally called him out of the county, and that he was applied to twice 
 to go out of the county after he had given bond. Held that the aver- 
 
 127 
 
g -995 DBEEL 
 
 ments in tlie declaration did not warrant this evidence of special dam- 
 ages. FvUer v. Bowker, 11 Mich., 304. 
 
 9§9. But the arrest in such case being void, and the bond void, 
 plaintiff cannot recover damages for remaining on the jail limits ac- 
 cording to the terms of the bond. lUd. 
 
 DEDICATION. 
 
 990. If the laying down of alleys, by the Governor and Judges, on 
 the plan of Detroit, can be treated as a dedication for any other public 
 purpose than that of ways for passage or travel; an acceptance or adop- 
 tion of that dedication is just as essential to give them a public cha- 
 racter, for any other purpose, as to give them that character as ways. 
 TiUman v. People, 12 Mich., 401. 
 
 See further the titles Town Plats, astd Ways. 
 
 DEED. 
 
 991. "WilhOMt ■witnesses. A deed without subscribing wit- 
 nesses is good in equity, as a contract for the sale of the land, and may 
 be enforced as such. Godfroy v. Disbrow, Wal. Ch., 260. 
 
 992. It is good as a conveyance of the land, as between the parties 
 thereto ; witnesses being required only for the purpose of registry. 
 Dmiglie/rty v. Bandall, 3 Mich., 581. 
 
 99S. Parties. A deed to ■" A., administrator of the estate of B.," 
 and to his successors and assignees for ev-er, where no express trust ap- 
 pears in the deed, and the estate is coupled with no conditions, conveys 
 the legal interest in the land to A., who loan convey the same without 
 -any^license of the Probate Court for the purpose. lAttle v. Lesia, 5 
 Mich., 119. 
 
 994. ExeeMtion by .attorney. To make a •valid deed under a 
 power of attoi'ney, it is essential that there should be an intention on 
 the part of the attorney to execute the deed under and by virtue of the 
 .power ; or at least that the contrary intention should not. appear. Dor 
 venpm't a Parsons, 10 Mich., 43. 
 
 995. Where a deed purported to be made by attorneys under .a 
 power from the two grantors, . and .there was some testimony that a joint 
 'powter had existed, but it was not given in evidence, and only a sepa- 
 rateipower from one of the grantors was proved, it was held that the 
 execution of this deed could not be referred to the separate power, and 
 the deed sustained as the deed of the grantor who had executed that. 
 Ibid. 
 
 138 
 
DEED. § ;1003 
 
 996. Delivery in eicroiv. A deed cannot be delivered to the 
 grantee in escrow. If delivered to him, whatever be the form off words 
 accompanying the delivery, it is absolute, and the deed takes effect at 
 once. Dawson v. MaU, 3 Mich,, 390. 
 
 997. Delivery— pre§uinptlon as to time. Where a deed 
 is acknowledged on a day subsequent to its date, and there is no proof 
 of delivery prior to the acknowledgment, it must be presumed to have 
 been delivered afterwards ; such being the usual course and practice in 
 reference to the delivery of deeds and other instruments intended for 
 record. Blanchard v. Tj/ler, 12 Mich., 339. 
 
 998. Possession of the deed is prima &cie evidence of its delivery. 
 Dawson v. SaU, 2 Mich., 390. 
 
 999. Description. A deed describing the itands as " supposed 
 to be thirty-eight acres of land off from the east side of the southeast 
 fractional quarter of section thirty-two, township "four south of range 
 sixteen west ; being the same number of acres off from said east side 
 of said southeast fractional quarter as there is in the west part of the 
 southeast fractional quarter of section four in township five south of 
 range sixteen west, heretofore occupied and owned by [the grantee], 
 and in exchange for which this conveyance is made ;" — is a good deed ; 
 the description being made sufficient by reference to the other tract, and 
 thus capable of being identified by survey. DaUyv. Litehfidd, 10 Mich., 
 29. 
 
 1000. Abbreviations. A deed is not invalid because of the de- 
 scription of the lands being in figures, and well understood abbre- 
 viations. Harrington v. Fish, 10 Mich., 415. 
 
 1001. Uncertainty in exception. Where the covenant 
 against incumbrances in a deed contained an exception of a " certain 
 mortgage," without giving the date or amount of the mortgage, or the 
 name of the mortgagee, but the proof disclosed only one mortgage upon 
 the property, it was Tidd that such exception was not void for uncer- 
 tainty, but would be understood as referring to the only mortgage 
 proven in the case. Cooper v. Bigley, 13 Mich., 468. 
 
 1002. mistaken description. Land was described as the east 
 halfof the northwest quarter of section twenty-one, in the township of 
 Logan, being township twenty-six south of range three. There was 
 no township twenty-six south in Logan, and there were two sections 
 twenty-one — one In township six south, and the other in township seven 
 south. It was held that parol evidence might be received to show on 
 which of these two sections land was intended to be conveyed by the 
 deed. Ives v. KimbaM, 1 Mich., 308. 
 
 1003. Where one part of the description in a deed is false and im- 
 possible, but, by rejecting that, a perfect description remains, such 
 
 9 129 
 
§ 1011 DEED. 
 
 false and .Impossible part should be rejected, and the deed held good. 
 Anderson v. Baitghman, 7 Mich., 69. See Jdknstone v. 8catt, 11 Mich., 
 233. 
 
 1004. A deed or other written instrument is to be construed so as to 
 render it valid and effectual, rather than void. Anderson v. Bcmgkman, 
 7 Mich., 69. 
 
 1003. And where an error in a deed appears by construction, the 
 record of the deed is notice to subsequent purchasers of the real land 
 intended. JMd. See also Cooper v. Bigley, 13 Mich., 463. 
 
 1006. Construction. In giving a construction to a deed, the 
 whole of it must be examined, and every part of it be taken into con- 
 sideration ; and the situation of the parties, and the subject matter of 
 the transaction may also be taken into consideration. Paddock v. Par- 
 dee, 1 Mich., 431. 
 
 1007. If the construction is doubtful, it is to be construed most 
 strongly against the grantor. Cicotte v. Qagnier, 3 Mich., 381. 
 
 100§. A plat referred to in a deed may be referred to for the pur- 
 pose of giving a construction to it. Paddock v. Pardee, 1 Mich., 431. 
 
 1009. lIonunient§ to control. In the construction of grants 
 both course and distance must give way to natural or artificial monu- 
 ments or objects ; and courses must be varied, and distances lengthen- 
 ed or shortened, so as to conform to the natural or ascertained ob- 
 jects or bounds called for in the grant ; but where there is nothing 
 in a conveyance to control the call for course or distance, the land must 
 be run according to the course and distance given in the description. 
 Brueknw's Lessee ii. Lawrence, 1 Doug., 19. 
 
 That a " quarter post" fixed in the original survey is binding upon 
 patentees from the government, notwithstanding errors in the survey, 
 see Britton v. Perry, 14 Mich. 
 
 1010. Orant of tvater. A grant of fifty square inches of 
 water, " to be applied five feet from the surface of the Clinton river, 
 opposite the place of taking the water from the race," does not author- 
 ize the grantee to draw the water through an orifice of fifty square 
 inches into a flume or reservoir upon his own premises, and then apply 
 it by a larger discharge than fifty square inches ; thereby enabling him, 
 a portion of every twenty-fbur hours, to drive machinery requiring more 
 than fifty square inches to propel it. Paddock v. Pardee, 1 Mich., 431. 
 
 1011. Owners in common of land upon which a mill had been situ- 
 ate (then burned down), the 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 mUl site was conveyed to one exclusively. Seld, that 
 he thereby became entitled to the water power exclusively, unless a 
 
 130 
 
DEED. § 1018 
 
 contrary intention clearly appeared from the conveyances. MandevUle 
 V. Comstoek, 9 Mich., 536. 
 
 1012. Town lots : plat not recorded. Deeds of town lots 
 are valid, notwithstanding the failure of the proprietors to acknowledge 
 and record the town plat. And though the deeds refer to the plat as of 
 record when it is not, they are still good, and the statement that it is re- 
 corded is to be rejected as falsa demoTistratio. Johnstone v. Scott, 11 
 Mich., 332. 
 
 1013. Crrant limited to the operative words. Where 
 the operative terms of a grant are confined to one parcel of land, and 
 the Court is asked to extend it to another, the intention of the grantor 
 to convey that other should so clearly appear on the face of the deed as 
 to leave no reasonable doubt in regard to it ; and no principle of law 
 should be violated in carrying it out. Byan v. Wilson, 9 Mich., 263. 
 
 1014. A deed by which the grantor conveyed to his son the one- 
 half of his farm, " consisting of forty acres more or less, namely : The 
 N. E. quarter of the N. E. quarter of section 13, town 7 N. of range 10 
 E. ; the said party of the first part reserving to himself the other part of 
 said farm, namely : the N. W. quarter of the N. B. quarter of section 13, 
 for and during his natural life, and after his decease the said N. W. 
 quarter of the N. B. quarter to revert to the said party of the second 
 part and his heirs forever," does not convey to the grantee any interest 
 in the last described parcel. Ibid. 
 
 1015. Boundary on stream. A^grant of land bounded on a 
 stream, carries with it the bed of the stream to the center, unless a con- 
 trary intention clearly appears from the conveyance itself. Norris «. 
 Eia, 1 Mich., 203. 
 
 1010. This principle is applicable to the Detroit River. Lorman v. 
 Benson, 8 Mich., 18. It is also applicable to Lake Muskegon ; and the 
 ownership of land bordering on the lake carries with it the ownership 
 of the land under the shallow water so far out as it is susceptible of be- 
 neficial private use, but subordinate to the paramount public right of 
 navigation, and the other public rights incident thereto. Mice v. Buddi- 
 man, 10 Mich., 135. 
 
 1017. General description not conveying streets. A 
 deed by the trustee of a village company conveying " all lands of said 
 company not designated and numbered by lots on the plat of the com- 
 pany's purchase," will not convey a street on the plat which by non- 
 user had reverted to the company. Wa/nter v. BlancJiard, 3 Mich., 11. 
 
 1018. Execution out of State. Under the act of April 13, 
 1837— Code 1837, p. 258 ; Code 1833, p. 281 — the record of a deed ac- 
 knowledged in the State of New York, in conformity with the laws of 
 that State, with the acknowledgment certified by the officer taking it, 
 
 131 
 
§ 1026 DEED. 
 
 in his official capacity, is evidence, without proof of the official charac- 
 ter of the person taking the acknowledgment, or the genuineness of his 
 signature. Ives v. KimboiU, 1 Mich., 308 ; QdJt/pm v. Abbott, 6 Mich., 17. 
 
 1019. But the execution and witnessing of the deed was required to 
 be the same as if done within the territory. Two witnesses were, there- 
 fore, essential. Gaipin v. Abbott, 6 Mich., 17. 
 
 1020. A deed was executed and acknowledged in another State, 
 conveying lands in this State. The certificate of the proper clerk was 
 made and attached several years afterwards, certifying that the deed 
 was executed and acknowledged according to the " existing " law of 
 that State. Held sufficient under the statutes now in force. Harring- 
 ton, V. Fish, 10 Mich., 415. 
 
 1021. By assignee in bankruptcy. The deed of an assignee 
 in bankruptcy, containing a copy of the decree declaring the bank- 
 ruptcy, which decree recites the appointment of the assignee, is suffi- 
 cient under the law of Congress which prescribes what the deed shall 
 contain. Ibid. 
 
 1022. Restrictinguse of premises. One conveying an ease- 
 ment in water may restrict the use thereof to such purposes as he may 
 specify in the grant. MandevUle v. Oomstock, 9 Mich., 536. 
 
 1023. Restraint upon alienation. A covenant in an inden- 
 ture conveying a fee, that the grantee will not alien without the gran- 
 tor's consent, is void. Ganypau v. Ohene, 1 Mich., 400. 
 
 1024. The beallng act of 1S61. In order to bring a deed, 
 executed in another State not in compliance with our laws, within the 
 saving of the confirming act of 1861 — Laws of 1861, p. 16 — it is necessary 
 to show that, although not valid under the laws of Michigan as a con- 
 veyance for all purposes, it was executed according to the laws of the 
 State where the execution took place, as well as regularly acknow- 
 ledged. And these facts cannot be presumed without evidence. Brown 
 0. Oadi/, 11 Mich., 535. 
 
 1025. In the absence of a statute authorizing it, the record of a deed 
 is not primary evidence of the existence and genuineness of the original. 
 And under said statute the record of a deed defectively executed is not 
 made evidence of a valid sale without the production of the deed itself. 
 The law makes such a record "hereafter operate as legal notice of all 
 the rights secured by such instrument ;" but do,es not render it of any 
 validity except for notice. Ibid. 
 
 1026. Deeds presumed to show the actual title. A 
 partnership of three persons owned lands, which, however, had been 
 conveyed to the three without any reference in the deed to the part- 
 nership. It was held that a mortgage given by one of the three, on an 
 undivided third, to one who had no notice that it was partnership pro- 
 
 133 
 
DETROIT CITY. § 1033 
 
 perty, was not aflected by the partnership equities. Such mortgagee had 
 a right to presume that the common possession of the three was under 
 and in accordance with the record title, and not under some other and 
 parol arrangement. Adams v. Bradley, 13 Mich., 346. 
 
 DETROIT CITY, 
 
 1027. Conveyances by the Liand Board. The power of 
 the Governor and Judges to convey lots in the town of Detroit, was 
 not confined to a conveyance of lots in such forms and dimensions as 
 they should delineate upon their plan. The claims to be adjusted by 
 them were such as any person might have, legal and equitable ; and 
 when satisfactory proof had been made, they had no right to deprive a 
 claimant of any portion of the land actually belonging to him under the 
 acts of Congress, whether it interfered with any projected plan or not. 
 And the Courts cannot go behind their conveyances while they acted 
 within their jurisdiction. People v. Jones, 6 Mich., 176. [See the two 
 cases of Tregent v. Whiting, and Beady v. Kea/rdey, 14 Mich., as to con- 
 veyances by the Land Board, ai*J especially as to the " Trust Deeds,'' 
 so called.] 
 
 102S. T'tie plan of tlie city, when made, was liable to modi- 
 fication by interfering claims and reserves, and the Land Board had 
 power to adapt it to contingencies when necessary. IHd. 
 
 1039. Vacating public grounds. Where the common coun ■ 
 cil proceeds to vacate public grounds, under the chartei* of 1857, it is 
 not necessary that they should specify in the resolution any subsequent 
 use to which they may contemplate putting the grounds. Hinchnum %. 
 City of Detroit, 9 Mich., 103. 
 
 1030. Hor is it necessary that the jury impanelled to assess the 
 damages and benefits to individuals by reason of the improvement in 
 vacating such grounds, should pass upon the necessity of the contem- 
 plated improvement. Ihid. 
 
 1031. liicenseg. The ordinance of the common council, which 
 provides that no person shall keep a ferry or boat for transporting per- 
 sons and property across to the Canada shore without a license therefor 
 from the mayor, and imposes a penalty for its violation, is a valid ordi- 
 nance. ChUvers ii. People, 11 Mich., 48. 
 
 1032. The city may lawfully charge a license fee with a view to 
 revenue for the keeping of such a ferry. The license fee is a price paid 
 for the franchise, and not a tax, within the meaning of that term as 
 used in the constitution of the State and the charter of the city. lUd. 
 
 1033. The ordinance prohibiting the keeping of stalls for the sale of 
 
 133 
 
§ 1040 DETROIT CITY. 
 
 fresh meats outside of the public markets, without license from the 
 mayor, and requiring payment of a license fee of five dollars, is valid. 
 The fee is not a tax, but a reasonable compensation which the city de- 
 mands from those who will not sell in the public markets, for the 
 additional labor of its oflEicers and expense thereby imposed. Ash v. 
 People, 11 Mich., 347. 
 
 1034. Fire limits. The common council has power to establish 
 fire limits, and forbid the rebuilding or repair of wood buildings within 
 the limits. Brady v. Northwestern Insurance Co., 11 Mich., 435. 
 
 1035. Control of streets. "Where a plank road company is 
 authorized by its charter to take possession of a street in the city and 
 construct a plank road thereon, and is required to keep the road in 
 repair, and the road is constructed, a toll gate erected and tolls exacted 
 of travelers, the city is thereby divested only of so much of its power 
 over the street as would conflict with the rights of the company ; and if 
 the city authorities proceed to tear up the plank and cause the street to 
 be paved, the company alone can complain. A bill by one who is 
 assessed for the paving, to restrain the assessment, cannot be sustained. 
 Bagg ». Oity of Detroit, 5 Mich., 336. 
 
 1036. Contracts by the city. Where labor was performed 
 under a contract with the city before the revised charter took eflfect, 
 and the common council, after the new charter, passed a resolution for 
 the settlement of the contractor's claim, it was held that the resolution 
 did not require the approval of the mayor. Chaffee v. Granger, 6 Mich., 
 51. 
 
 1037. Under the revised charter, claims for the construction of a 
 sewer are to be paid only from a fund specially voted and raised for the 
 purpose. While a claim against a sewer fund, which the city disputes, 
 is pending and unadjusted, the rights of the claimant cannot be aflfected 
 by a transfer to the sinking fund of the balance standing to the credit 
 of such sewer fund. lUd. 
 
 103§. Held, that a Court of equity should not, on the application of 
 a tax-payer, interfere with the settlement of a claim against the city by 
 the common council, where the council appear to have acted in good 
 faith, and there could be no serious doubt of the legality of the larger 
 portion of the demand, and the question as to the remainder was at 
 most one of doubtful construction of the contract under which the 
 claim accrued. IMd. 
 
 1039. Under the charter of 1857, the city has no power to make itself 
 responsible for any public work ; and such work can only be paid for 
 by funds actually in the hands of the city treasurer, provided for the 
 specific purpose. Goodrich v. City of Detroit, 12 Mich., 279. 
 
 1040. Collector of taxes. Under the ordinances of the city 
 
 134 
 
DIVORCE. § 1047 
 
 tlie collector for 1855-6 was not entitled to collect from the city a per- 
 centage for his fees on that portion of the taxes returned uncollected. 
 Kekey v. City of Detrmt, 1 Mich., 315. 
 
 1041. The act of 1853, p. 145, § 63— which required that upon the 
 neglect of any township treasurer to pay over or account for the taxes 
 required by his warrant to be collected, the county treasurer should 
 issue his warrant to the sheriff, requiring him to collect the money of 
 the township treasurer and his sureties — did not authorize the issuing of 
 such a warrant against a defaulting ward collector of Detroit. James n. 
 Howard, 4 Mich., 446. 
 
 1042. City marshal : term of office. The term of office of 
 city marshal under the amended charter (S. L. 1861, p. 181-2), is two 
 years ; and the common council has no authority to limit it to one year 
 in making the appointment. Stadler v. City of Detroit, 13 Mich., 346. 
 
 1043. Constables. Notwithstanding the repeal of the provision 
 in the city charter which defined the powers and duties of constables, 
 these officers within the city possess the same general powers belonging 
 to the office in the towns. People v. Smith, 9 Mich., 193. 
 
 1044. Water commissioners. The board of water commis- 
 sioners do not exceed their powers in contracting to themselves furnish 
 and put in water pipe on private property, in a case which they regard, 
 in good faith, as a proper one for the exercise of their discretion in 
 using means to prevent waste and insure security. Hole d. HougMon, 
 8 Mich., 458. 
 
 1045. So far as third persons are concerned, the superintendent and 
 engineer is the proper medium of negotiation with the board. And if 
 he make a contract which exceeds his authority, and which the board 
 refuse to sanction, he may sue and recover upon it in Ms own name. 
 lUd. 
 
 1046. Notice of council proceedings. Electors of a city 
 are presumed to have notice of the proceedings of the common council, 
 which are published in the official paper of the corporation. They are 
 therefore presumed to have notice of a vacancy which has been de- 
 clared by the council. Peo'j^ v. HaHweU, 12 Mich., 508. See WiUiamis 
 v. Mayor, &c., of Detroit, 2 Mich., 560. 
 
 DIVORCE. 
 
 1047. Wife's property. Under the Statutes of 1838, on a di- 
 vorce for any cause except the adultery of the wife, she was entitled to 
 the immediate possession of her real estate in the same manner as if 
 the husband were dead. Johnson v. Johnson, Wal. Ch., 309. And see 
 Comfp. L., § 3339. 
 
 185 
 
§ 1057 DIVOECE. 
 
 104§. IVon-resident defendant. The Statutes of 1838 re- 
 quired a diiferent order for the appearance of a non-resident defendant 
 in divorce cases from that in other suits in chancery ; and an order in 
 the form required in othercases gave the Court no jurisdiction to decree 
 a divorce. Freeman v.. Freeman, 1 Mich., 480, 
 
 1049. Reference-. On a bill being taken as confessed, and a 
 reference to a master to' take proof of the material facts stated in the 
 bill, he must report his opink>n on them, with the testimony taken. 
 The object is to guard agamst collusion by the parties ; and the master 
 in addition to the questions askeA by the complainant, should examine 
 the Tvitnesses himself, that he may give his opinion understandingly. 
 Emmons v. Emmons, Wal. Ch,, 532. 
 
 1050. Withdrawal of answer. Where^ in a divorce suit, 
 ah answer is filed and subsequently -withdrawn, no divorce should be 
 granted without some satisfactory evidence showing that the with- 
 drawal was voluntary, and at the same time not collusive- Leavitt v, 
 Leamtt, 13 Mich., 452. 
 
 1051. Admissions of parties. Divorce will not be granted 
 upon the admissions of a party unsupported by evidence; but the 
 amount of evidence required varies with the danger of collusion. Sauj- 
 yer i>. Sawyer, Wal. Ch., 48. 
 
 1052. Alimony. In a suit by or against a wife for a divorce, if 
 she have no separate property of her own, the Court, when necessary, 
 on petition, will grant her temporary alimony pending the suit, and 
 require her husband to advance money to enable her to prosecute her 
 suit, or make her defense. Story v. Story, Wal. Ch., 421. 
 
 1053. The affidavit of the husband, denying the ground on which 
 the wife asks a divorce, is no answer to an application for alimony 
 during the suit, but may be read to aid the Court in the exercise of its 
 discretion as to the amount to be allowed. Ibid. 
 
 1054. Alimony on appeal. On an appeal from chancery in 
 a divorce case, the Supreme Court has power to allow the wife tempo- 
 rary alimony, and to compel the husband to furnish her with pecuniary 
 means to prosecute or defend the appeal. Goldsmith v. QcHdamith, 6 
 Mich., 285. 
 
 1055. That the decree of the Court below was adverse to the wife, 
 is not sufficient ground for denying such temporary alimony on appeal, 
 where it appears that the appeal is taken in good faith. Ibid. 
 
 1056. An order for such alimony was vacated on its being made to 
 appear by affidavits that the appellant had been guilty of repeated acts 
 of adultery pending the appeal. Hid. 
 
 1057. modifying decree for alimony. The statute — 
 Comp. L., § 3349— which provides that, after a decree for alimony, the 
 
 136 
 
DONATIO CAUBA MORTIS. § 1062 
 
 Court may, from time to time, on tlie petition of eitlier of tlie parties, 
 revise and afl'ter sach decree, &c., must be construed as only author- 
 izing the chainge om new facts thereafter transpiring, which are of such 
 a character as; to make the change necessary to suit such new state of 
 facts. Perkins v. Perkins, 12 Mich., 456. 
 
 105S. Annulling marriage for fraud. Those frauds 
 which will invalidate a marriage are usually, at least, such as nega- 
 tive any consent to be married, "without reference to previous induce- 
 ment. The common cases are duress, surprise or stratagem in pro- 
 curing the marriage to be carried out ; and the fraud must usually be 
 nearly, if not absolutely, co-incident in time with the marriage, and 
 operate to destroy that intelligent consent which is required for the 
 marriage itself, rather than the preliminary engagement. Zecmtt v. 
 Leavitt, 13 Mich., 452. 
 
 10S9. A bill was brought by a husband, some twenty years after 
 marriage, to procure a decree of nullity, on the ground of fraud in 
 the marriage contract, and the bill alleged that the defendant was 
 guilty of ante-nuptial inchastity, that her chastity was made the sub- 
 ject of frequent and diligent inquiry by him before marriage, and that 
 the defendant made specific and open assertion to him on the subject, 
 upon the falsehood of which, and his own inability to ascertain any- 
 thing on the subject, he based his sole claim to relief. Several children 
 had been bom to the parties, and no complaint was made of defendant's 
 conduct during the coverture. Bill dismissed as unprecedented and 
 shameful. Ibid. 
 
 DOMICIL. 
 
 1060. See definitions of, and how and from what circumstances it 
 may be inferred. Migh, ajipellant, 2 Boug. 515. 
 
 DONATIO CAUSA MORTIS. 
 
 1061. 'What §ufflclent. No mere contract, liability or obligation 
 of the party himself, can be the subject of a gift causa mortis by him ; 
 and therefore an unaccepted bank check, which, if not paid, merely 
 creates a liability against the drawer, cannot be valid as a gift by him 
 eausa mortis. Second National Bank of Detroit v. Williams, 13 Mich., 382. 
 
 1062. The check of a third person which is given causa mortis, 
 though invalid at the time for want of a sufScient stamp, if subse- 
 quently stamped according to act of Congress of June 30, 1864, is 
 thereby made valid from its inception so as to support the gift. Gibson 
 V. mbbard, 13 Mich., 314. 
 
 137 
 
§ 1073 DOWER. 
 
 DOWER. 
 
 1063. In Mrild lands. In this state a widow is entitled to 
 dower in wild lands. Campbdl,, a^ppeUant, 3 Doug., 141. 
 
 1064. Under Ordinance of 1?'§7, a widow was entitled to 
 dower, as at common law, in all the lands of which her husband was 
 seized during coverture. May ii. Bumney, 1 Mich., 1. 
 
 1065. Bfon-resident§. The widow of a non-resident of the State 
 has dower in those lands only of which her husband died seized. Comp. 
 L., § 2793. Prait v. Tefft, 14 Mich. 
 
 1066. Statutes of limitations, however broad and compre- 
 hensive, do not apply to dower, unless they expressly name, or by 
 necessary implication include it. Dower was not within the lim- 
 itation act of November 5, 1829, Code 1833, p. 408. May v. Bumney, 1 
 Mich., 1. 
 
 1067. The iinsband's grantee is estopped from disputing 
 the widow's right to dower, though the husband had no legal title, if 
 the grantee obtains the legal title afterwards on a claim based on the 
 husband's warranty deed. May v. Tillman, 1 Mich., 263. See also, May 
 ■». Specht, 1 Mich., 187. 
 
 106§. Husband cannot sell. The wife cannot be compelled 
 to release her dower in lands which her husband has contracted to sell ; 
 and she is not a proper party to a bill by the purchaser for specific per- 
 formance. Bichmond v. Bobinson, 13 Mich., 193. See Weed v. Terry, 3 
 Doug. 344. 
 
 1069. Conveyance in fraud of. A deed given by a man to 
 his sons shortly before his marriage, and kept secret until after the 
 marriage, is fraudulent as to the wife's right of dower, and does not bar 
 it. Granson v. Cranson, 4 Mich., 230. 
 
 1070. In inortg;ag:ed lands. Where the holder of a mortgage 
 given by the husband and wife became owner of the husband's equity 
 of redemption, and subsequently conveyed the lands with warranty, 
 and the widow of the mortgagor afterwards claimed dower, it was 
 held that the amount of the mortgage must be deducted from the whole 
 value of the premises, and dower only assigned in the balance. 
 Snyder «. Snyder, 6 Mich., 470. 
 
 1071. The conveyance of the equity of redemption to the assignee 
 of the mortgage is, in such circumstances, such a merger as authorizes 
 him to stand in the position of an assignee of the mortgage satisfying 
 it, under § 3777 Comp. Laws. Ibid. 
 
 1073. The deduction may be made when the proceeding for the re- 
 covery of the dower is by ejectment. Ibid. 
 
 1073. Assignment in Probate Court. Under R. S. 1838, 
 notice to the administrator of proceedings in the Probate Court for the 
 138 
 
DWELLING HOUSE. § 1079 
 
 assignment of dower, was not necessary. The proceeding was one 
 entirely between the widow and the heirs. CamxibeU, appeUant, 2 
 Doug., 141. 
 
 DRAFT FOR MILITARY DUTY. 
 
 1074. One Spangler was returned by the proper officer as liable to 
 military duty. For the purposes of a draft the names of those thus 
 returned were written upon ballots and placed in a box to be drawn 
 from. By mistake in writing Spangler's name, the final letter was 
 omitted, but it was held that this error did not invalidate the draft. 
 Matter of Spangler, 11 Mich., 298. 
 
 DRAINAGE LAWS. 
 
 1075. Drainage laws of 1§57 and 1S59. Proceedings 
 being taken under the act of 1857 "to provide for the draining of 
 swamps, marshes and other low lands," as amended in 1859, a venire 
 was issued by the chairman of the drain commissioners, without any 
 application being made to the commissioners by resident freeholders. 
 As the amendatory act plainly requires this, the proceedings were held 
 void. Palmer n. Mich, 12 Mich., 414. 
 
 1076. Saving .clause in act of 1839. The saving of "any 
 engagement or undertaking heretofore entered into by the commission- 
 ers," in the act of 1859, does not keep alive any proceedings commenced 
 under the old law, in any incipient stage, where no vested rights have 
 accrued. Ibid. 
 
 DURESS. 
 
 1077. Imprisonment. A mortgage given to a county as the 
 condition of a pardon, is upon sufficient consideration, and the lawful 
 imprisonment when it was given, is not such duress as can avoid it. 
 Rood V. Window, 2 Doug., 68, and "Wal. Ch., 340. 
 
 107§. Threats. Where a timid and ignorant man was induced 
 by threats of a prosecution for slander to assign a mortgage to another, 
 the transfer was held without consideration, and a re-assignment de- 
 creed. Tate V. Whitney, Har. Ch., 145. 
 
 DWELLING HOUSE. 
 
 1079. WTiat is. A building thirty -six feet distant from a man's 
 dwelling house, used for preserving the nets employed in the owner's 
 
 139 
 
§ 1087 EJECTMENT. 
 
 ordinary occupation of a fisherman, and also as a permanent dormitory 
 for his servants, is in law a part of his dwelling, though not enclosed 
 with the house by a fence. A fence is not necessary to include build- 
 ings within the curtilage, if within a space no larger than that usually 
 occupied for the purposes of the dwelling and customary outbuildings. 
 Pond V. PeopU, 8 Mich., 150. 
 
 EJECTMENT. 
 
 lOSO. Who to be defendant. The person in actual posses- 
 sion of the premises, if they were occupied by any one, was to be made 
 defendant under the Statutes of 1838. Lockwood v. Drake, 1 Mich., 14. 
 The present statute is to the same effect. Comp. Laws, § 4557. 
 
 10§1. By mortgagee, is now forbidden until after foreclo- 
 sure, by the statute of 1843 — Comp. L., § 4614. But this statute 
 does not apply to mortgages previously given. Mundy v. Monroe, 1 
 Mich., 68; Stevens v. Brown, Wal. Ch., 41; Blackwood v. Van Fleet, 11 
 Mich., 252. 
 
 1082. Venne. The Circuit Courts have power to order a change 
 of venue for cause. Oampau v. Dewey, 9 Mich., 381. 
 
 1083. Recovering for improTements. "Where a claim is 
 filed under the statute — Comp. L., § 4603 — for the value of improve- 
 ments jnade by defendant on the premises in controversey, the case 
 may be tried by the Court without a jury, if no jury be demanded. 
 Sawaon v. Parsons, 6 Mich., 401. 
 
 1084. Where such a claim is filed, and the plaintiff files none for an 
 estimation of the value of the land had no improvements been made, 
 the jury must estimate the increased value under defendant's claim, 
 and if the verdict be for the plaintiff, he will be entitled to judgment 
 for the recovery of the premises, but will be deemed, under the statute, 
 to have abandoned all claims thereto, unless he pays the estimate 
 for improvements within a year. If the plaintiff would have the jury 
 estimate the value of the land without the improvements, he must file 
 a claim for that purpose. Ibid. 
 
 1085. Such claim of the plaintiff when filed is an essential part of 
 the record, and must appear therein. It is not sufiicient that there be 
 a recital in the entry of judgment that such a claim has been filed. 
 Ibid. 
 
 1086. If the trial is had before the Judge without a jury, his 
 finding of facts is in the nature and stands in the place of a special 
 verdict, and must be filed in writing before any judgment can be en- 
 tered. Ibid. 
 
 1089'. The plaintiff has his election to take judgment for the pos- 
 140 
 
ELECTIONS. § 1096 
 
 session of the premises subject to the obligation to pay for the improve- 
 ments, or for the value independent of the improvements. But he is 
 bound by his election once made. lUd. 
 
 ELECTIONS. 
 
 108S. Canvas§er§' statement only prima facie evi- 
 dence. The statement required by law to be made out by the can- 
 vassers, showing the votes given for the respective offices, is prima 
 facie evidence only of the facts stated in it. The county canvass may 
 be corrected by the township canvasses, and these by the ballots them 
 selves. People v. Van Cl&Be, 1 Mich., 363. 
 
 10S9. The determination by the board of county canvassers as to 
 the persons elected, is only prima facie evidence of their election. The 
 duties of the board of canvassers are wholly ministerial. Ibid. 
 
 1090. The evidence contained in the ballots is the foundation of the 
 statements to be prepared both by the inspectors and by the county 
 canvassers ; and also of the certificates of election issued by the latter. 
 A party may go behind the canvass and certificate to the ballots, to 
 show the number of votes cast for him. Pea^ v. TisdoUe, 1 Doug., 
 59 ; People v. Van Cleve, 1 Mich., 362 ; People «. Higgina, 8 Mich., 233. 
 
 1091. Tlie intention of tlie voter must be ascertained from 
 the ballot ; and if that fails to express the intention, evidence cannot be 
 allowed to explain it. A ballot for J. A. Dyer cannot by extrinsic proof 
 be shown to have been meant for James A. Dyer. People v. TisdaU, 1 
 Doug., 59; People v. Higgins, 3 Mich., 233. 
 
 1092. Abbreviations. Where the designation of an individual 
 upon a ballot is by an abbreviation, sanctioned by common usage, and 
 universally understood — as Jas. for James — the ballot may be counted 
 for the person for whom it was evidently designed. People v. Tisdale, 1 
 Doug., 59. 
 
 1093. An error in spelling the name does not prevent 
 the ballot being counted for the person for whom it was designed — the 
 rule of idem sonans applying. People v. Mayworm, 5 Mich., 146 ; People 
 V. Tisdale, 1 Doug,, 59. 
 
 1094. mistalte in depositing ballots. An elector is not to 
 be deprived of his vote, either by the mistake or fraud of the inspector 
 in depositing it in the wrong box, if the intention of the voter can be 
 ascertained with reasonable certainty. People v. Bates, 11 Mich., 362. 
 
 1095. Nor should ballots be rejected because of being put in the 
 wrong box by the honest mistake of the voters themselves. lUd. 
 
 1096. Where, therefore, a city and State election were both held at 
 the same time, under the oJiarge of the same inspectors, and seven bal- 
 
 141 
 
§ 1103 EMINENT DOMAIN. 
 
 '\ 
 lots for city officers were found at the closing of the poU in the State 
 box, and the circumstances of the case made it reasonably certain that 
 these ballots were in good faith put in by electors who did not put in 
 other ballots for city officers at the same election, it was held that they 
 were properly counted by the inspectors. Ibid. 
 
 1097. Only one officer voted for when two to be 
 chosen. Under a law authorizing the election of two circuit court 
 commissioners an election was held, but it was conducted in all respects 
 as if one only was to be chosen : two persons were opposing candi- 
 dates, and each elector voted for one of the two, but in no instance did 
 a ballot contain more than one name for this office. It was held that 
 only the one receiving the highest number of votes was chosen, and as 
 to the other there was a failure to elect. People v. Canvassers of Kent 
 Co., 11 Mich., 111. 
 
 109S. Preserving ballots. The failure of the inspectors to 
 keep the ballots in the manner pointed out by the statute, will not aflect 
 the rights of persons for whom they are cast. People v. Miggins, 3 Mich., 
 333. 
 
 1099. Neglect to give notice of election. Where a city 
 charter required a vacancy in a city office to be filled at the next 
 general election, and directed the city clerk to give notice of tlie elec- 
 tion, and of the offices to be filled, and the notice actually given by him 
 took no notice of the vacancy, it was held that this default of the clerk 
 did not invalidate the election for the vacancy ; that the statute requir- 
 ing the notice to be given was directory merely. People v. SarticeU, 12 
 Mich., 508. 
 
 1100. Ulections in Pontiac. A legislative act authorizing 
 the annual meetings of the township of Pontiac to be held within the 
 city of Pontiac, would not authorize the polls for said township, for a 
 general election, to be held in the city. People v. Knight, 18 Mich., 434. 
 
 EMINENT DOMAIN. 
 
 1101. Taking lands for railroads. The territorial legisla- 
 ture had power to incorporate railroad companies, and to authorize the 
 appropriation of private property for their purposes, without the con- 
 sent of the owner ; and an act to that effect was not repugnant either to 
 the Constitution of the United States or the Ordinance of 1787. Swam, 
 V. Williams, 3 Mich., 437 ; Mevcer v. WiUiams, Wal. Ch., 85. 
 
 1102. Property of individuals taken by railroad corporations for the 
 purpose of constructing their roads, is, in legal contemplation, taken 
 not for private but for public use. The tenure of the corporations in the 
 
 142 
 
EQUITY: GENERAL PRINCIPLES. § 1109 
 
 land is in the nature of a trust for public \;ise, subject to the supervision 
 of government. Swan v. WiUiams, 2 Mich., 427. 
 
 1103. Making compensation. Land may he taken for the 
 public use without stipulation between the owners and the legislature, or 
 the intervention of a jury, or of commissioners mutually chosen. It is 
 only requisite that an impartial tribunal be provided for assessing the 
 compensation ; and such tribunal miay be constituted without the inter- 
 vention of the owner of the land. People v. Michigan Savtlwm B. B. 
 Co., 3 Mich., 496. 
 
 1104. See the statutes providing for the construction of the State 
 railroads, and constituting a board to which claims might be presented 
 for lands taken, considered. lUd. 
 
 1105. Lands taken by the State for its railroads passed by the sale 
 of the roads to the purchasers, notwithstanding the owners of the lands 
 had failed to present their claims and obtain compensation. Ilnd ; 
 Smith V. McAdam, 3 Mich., 506. 
 
 1106. Kotice to owner. The charter of a railroad corporation 
 is not unconstitutional because not expressly requiring notice to the 
 owners of proceedings to assess the compensation for property taken — 
 the charter evidently contemplating notice, so that it is the duty of 
 the tribunal in which the proceeding is taken to see that it is given. 
 Swan V. Williams, 2 Mich., 427. 
 
 1107. Enjoining appropriation. Where a railroad corpora- 
 tion had, in good faith, obtained an assessment of damages for land 
 needed for their road long before they wanted the use of it, and after- 
 wards, when any delay would have been injurious to them, and while 
 the confirmation of the inquisition was pending in the Supreme Court, 
 to which it had been reserved, had tendered the damages assessed and 
 proceeded to use the land, an injunction to restrain the use was refused 
 notwithstanding the inquisition was not valid until confirmed ; inasmuch 
 as the corporation could only be delayed, and could not be prevented 
 from finally obtaining the land. Mercer v. WiUiama, "Wal. Ch., 85. 
 
 EQUITY : GENERAL PRINCIPLES. 
 
 1. Where there is a Remedy at Law. 
 
 110§. The Court of Chancery will not take jurisdiction of a case 
 where there is a plain and adequate remedy at law. Barrows v. Doty, 
 Har. Ch., 1 ; Bennett v. Nichols, 12 Mich., 22. See the principle dis- 
 cussed in Wales «. Newbovld, 9 Mich., 45. 
 
 1109. Complainant's intestate had leased premises for the purpose of 
 erecting a steam saw-mill thereon, had placed upon them a frame for the 
 building, ready for erection, and had contracted and partly paid for an 
 
 187 
 
§ 1115 EQUITY: GENERAL PRINCIPLES. 
 
 engine for the same. After his death the land was sold by the lessor, 
 and the purchaser, together with the contractor for the engine, put up 
 the frame, and completed and commenced operating the mill Com- 
 plainant, as administrator, filed his bill against them to compel payment 
 of the value of the mill frame, and of the moneys paid towards the 
 engine, and to have the amount declared a lien on the premises. Held, 
 that his claims were not of equitable jurisdiction, and his remedy was 
 at law. Bennett v. Nichols, 12 Mich., 22. 
 
 1110. Remedy at law doubtful. If the remedy at law is 
 doubtful, a Court of equity may relieve. A bill was filed to set aside a 
 contract, and compel the delivery up of certain notes obtained from 
 complainant by fraud. As under the cireumstances shown by the bill 
 it was doubtful if the defense to the notes would be good at law, and 
 complainant was liable to be harrassed with a series of suits thereon, 
 the Court overruled a demurrer for want of equity, and required the 
 defendant to answer. Ankrim ®. Woodworfh, Har. Ch., 355. See 
 Wheeler V. Clinton Canal Bank, Har. Ch., 449. 
 
 1111. If relief is prayed which cannot be had at law, that is suffi- 
 cient to confer jurisdiction. Rowland v. Doty, Har. Ch., 3 ; Wales v. 
 NewbovM, 9 Mietu, 45. 
 
 1112. HoMT the defense made. The objection that there is a 
 remedy at law should be taken by demurrer. If the object of the suit 
 is embraced under any of the appropriate heads of equitable jurisdic- 
 tion, the Court will tnJte cognizance of it, notwithstanding there may be 
 a remedy at law, or other circumstances exist which would induce the 
 Court to refuse to entertain jurisdiction of the particular case, unless 
 the defendant takes the objection by demurrer, or claims the benefit of 
 it by his answer. Williams v. Mayor, &c., of Detroit, 2 Mich., 560. 
 
 1113. But where the subject is not one of equitable cognizance, 
 relief cannot be given in equity, notwithstanding the defendant has 
 answered, and gone to a hearing on the merits. Bennett ». Nielwlt, 
 12 Mich., 22. 
 
 1114. Where parties were trying their rights to land at law, and 
 the claim of defendants was a legal and not an equitable one, with no- 
 thing to prevent their establishing it as fully at law as in equity, it 
 was held that equity would not interfere on tlieir application, but 
 leave them to establish their defense at law. But bill being filed, 
 and the defendant, instead of demurring, having submitted to ans- 
 wer, and not in his answer insisting on the objection, it was further 
 held that he was too late to raise the objection at the final hearing on 
 pleadings and proofs. Stockton v. Williams, "Wal. Ch., 120. See Moran 
 e. Palmer, 13 Mich., 367. 
 
 1115. Election of remedie§. A party defrauded in a contract 
 
 144 
 
EQUITY: GENERAL PRINCIPLES. § 1140 
 
 bill to pray relief, .the whole biU is demurrable. WeUea v. Rivei- Baisin 
 arid Chrand River Railroad Co., "Wal. Ch., 35. 
 
 1133. Partie§ in pari delicto. Where a party is sued at 
 law on account of an illegal transaction equity will not aid him by 
 discovery. I hid. 
 
 3. Injunction. 
 
 1134. Against public officers. Equity may restrain public 
 officers by injunction, where they are proceeding illegally and im- 
 properly, under a claim of right, to do any act to the prejudice of 
 individual rights. Cooper v. AMen, Har. Ch., 72; Brown v. Gardner, 
 Har. Ch., 291. 
 
 1135. The interference in such cases is to prevent great and irre- 
 parable injury. Where an injunction was awarded to restrain the 
 opening of a road, but before it was served or defendants had know- 
 ledge of it, the road was opened, and the equity of the case was doubt- 
 ful and the injury slight, the Court refused to retain the suit and close 
 up the road, and also refused to award an issue quantum damnificatus. 
 Brown v. Gardner, Har. Ch., 291. 
 
 1136. The common council of Detroit having authority by law to 
 make an assessment for paving streets, an injunction will not be granted 
 to restrain the collection of such assessment by warrant against the 
 ^oods and chattels of complainant ; but he will be left to his remedy at 
 
 law. WUliams v. Mayor, t&c, of Detroit, 2 Mich., 560. 
 
 1137. An individual has no right as a tax payer, either in his own 
 name or on behalf of himself and the other tax payers, to file a bill to en- 
 join proceedings in advance of the actual levy of a tax. He cannot seek 
 redress until liis own tax can be ascertained, and he cannot then pro- 
 ceed in equity except to protect his individual interests from injuries 
 not remediable otherwise. MiUer v. Grandy, 13 Mich., 540. 
 
 113S. Private persons cannot assume to themselves the right to in- 
 stitute proceedings in chancery to redress grievances on behalf of the 
 public. They can only proceed where the individual grievances are 
 distinct from those of the public at large, and such as give them a 
 private right to redress. IWd. 
 
 1139. The only cases where individuals can sue on behalf of them- 
 selves and others are where the interests, though numerous, are all 
 separate, individual, and not joint or public interests identical in cha- 
 racter and origin, but all private and independent rights growing out 
 of the same transaction or frauds. lUd. 
 
 1140. Nuisances may be stayed or prevented by injunction, and 
 the complainant will not be first required to establish his right at law, 
 unless doubtful and in dispute. White v. Forbes, Wal. Ch., 113. 
 
 147 
 
§ 1148 EQUITY: GENERAL PRINCIPLES. 
 
 1141. Where the aid of the Court is sought to protect the enjoyment 
 of property, it will not he governed by the mere value of property, but 
 will interfere if the injury wUl materially lessen the enjoyment of it by 
 the owner. liid. 
 
 1142. A perpetual injunction was granted to prevent the erection 
 of a dam which would have flooded the lands of complainant, on the 
 grounds of injury to the property, and the probability that disease 
 would be generated by the overflowing of the water. lUd. 
 
 1143. The provision in the statute — Comp. L., § 4723 — as to the 
 jurisdiction of chancery in cases of nuisance, was not intended to ex- 
 tend or enlarge their jurisdiction. Norris v. HiU, 1 Mich., 302. 
 
 1144. Personal property. The ground upon which injunc- 
 tions are granted against third persons in possession of personal pro- 
 perty, and ostensibly its rightful owners, upon an ex-parte application, 
 is for the protection of the fund or property when shown to be in dan- 
 ger without its interposition. Thay&r v. Swift, Har. Ch., 430. 
 
 1145. And where it is not alleged that such persons are insolvent, 
 or transient, or that the fund is in a hazardous condition, an injunction 
 will not be granted, as they will be equally responsible to those whose 
 rights to the property or fund should be established though the pro- 
 perty should be converted into money, and the money paid away pend- 
 ing the suit. IWd. 
 
 1146. Possession of lands is not to be obtained by injunction. 
 The Court cannot, by ex-parte order or process, turn even a wrong- 
 doer out of possession. People v. Simonson, 10 Mich., 335 
 
 1147. Complainant, daimirig to be in the actual possession of cer- 
 tain premises, obtained a preliminary injunction enjoining respondents 
 from trespass of a nature likely to injure the buUdings, and the writ, 
 also enjoined them from in any way interfering or meddling with the 
 possession, and from entering into the premises ; and it appearing that 
 respondents were actually in possession at the time the injunction was 
 issued, it was held that they could not be punished as for contempt in 
 maintaining this possession by force. IMd. 
 
 114§. Tenants in common of water. Where complainants 
 owned the water power on the east side of a river, and one half the 
 water power on the west side — ^the defendant owning the other half— 
 and defendant had occasionally used more than his half the water on the 
 west side, but no suit had been brought against him for so doing, and 
 complainants had no machinery on that side of the river to be propelled 
 by water, an injunction restraining defendant in the use of the water 
 was refused. Norris e. EiU, 1 Mich., 203. 
 148 
 
EQUITY: GENERAL PRINCIPLES. § 1134 
 
 of sale must make his election on the discovery of the fraud, or within a 
 reasonable time thereafter, -whether he will rescind the contract, or re- 
 sort to an action on the case for damages. If the condition of the pro- 
 perty Jias been so changed that the parties cannot substantially be 
 placed back where they were before the sale, the party defrauded must 
 resort to his action. CarroU v. Bice, Wal. Oh., 373, 
 
 1116. Complainant having filed his bill for relief against a judgment 
 at law, and having subsequently sued out a writ of error upon the judg- 
 ment, he was required to make election in which Court he would pro- 
 ceed. Wab V. WiUiams, WaL Ch., 453. 
 
 1117. Concurrent Jurisdiction. Equity has concurrent 
 jurisdiction with the Courts of law in cases of fraud. And where the 
 remedy at law is difficult or doubtful, equity will entertain jurisdiction. 
 Wheder v. Clinton CandL Bank, Har. Ch., 449. 
 
 111§. Jurisdiction for one purpose retained for an* 
 other. Where equity has acquired jurisdiction for the purpose of 
 granting an injunction, it may retain the suit for the purpose of award- 
 ing damages to complainant Brown «. Qa/rdner, Har. Ch., 391. 
 
 1119. So where a bUl was filed to rescind a contract for fraud, 
 and the Court under the circumstances refused this relief, yet, the fraud 
 being established, the bill was retained for the purpose of giving dam- 
 ages to complainant. GourroU v. Rice, Wal. Ch., 378, 
 
 1120. And where the Court had determined that the equitable title 
 was in complainant, it decreed a surrender of the possession to him, in- 
 stead of leaving him to his remedy by ejectment. Whipple v. Vwrrar, 8 
 Mich., 436. 
 
 " 1121. Relief ag^ainst judgment. If a party has a defense at 
 - law which he neglects to make, he cannot, after judgment against him, 
 have relief in equity. Wrighi v. King, Har. Ch., 13. 
 
 1122. Where one is induced to become indorser of a note by the 
 statements of the payee that it is mere matter of form, and he will not 
 be troubled about it, and afterwards suit is brought upon the note, and 
 he makes no defense, and judgment is obtained, he is thereafter pre- 
 cluded from claiming that the judgment is not binding upon him. Bo- 
 beHs D. MHea, 13 Mich., 397. 
 
 1123. But where, after the judgment, statements to a similar effect 
 were made, under such circumstances as to justify the indorser in be- 
 lieving and acting upon them, and in supposing he was not liable, and 
 he was thereby induced to abstain from securing himself when he 
 might easily have done so, until the maker became insolvent, and an 
 execution was then levied upon his property, it was held that he was 
 entitled to a perpetual injunction. Ibid. 
 
 1124. Ignorance of defense. Where a defendant was 
 
 10 145 
 
§ 1133 EQUITY: GENEEAL PRINCIPLES. 
 
 ignorant of the facts which constituted Ms defense at law pending 
 the suit, or the defense was not available at law, the case forms an ex- 
 ception to the general rule that equity will not interfere to relieve 
 against a judgment at law. Wales v. Bank of MicMgam,, Har. Ch., 308. 
 1123. Fraud of plaintiff, &c. So does the case of a party who, 
 without any neglect or default on his part, was prevented by fraud or 
 accident, or the act of the opposing party, from making his defense. 
 Mack V. Doty, Har. Ch., 366 ; Bwpee v. Smith, Wal. Ch., 337. 
 
 1126. Where complainants were prevented from making their de- 
 fense at law by the act of the plaintiff, until the only witness by whom 
 the defense could be 'proved was dead, it was held that they were en- 
 titled to relief in equity, and that it was not necessary to entitle them 
 to this relief that they should, appeal from the judgment at law. Mack 
 V. Doty, Har. Ch., 366. 
 
 1127. Complainants were sureties for another party, for whom de- 
 fendant had from time to time extended the payment, without their 
 consent, until the principal had.become insolvent. Suits being brought 
 against complainants, they appeared and pleaded, and the suits were 
 discontinued ; but the witness by whom the defense could be made out 
 dying, suits were again brought and judgments recovered. It was held 
 that complainants were entitled to relief against the judgments. Ilnd. 
 
 112§. IVeg^Iigence of defendant. If a party's ignorance of 
 his defense at law is connected with negligence, and might have been 
 avoided by the use of ordinary means to obtain the necessary informa- 
 tion, equity will not relieve. Wixom v. Davis, Wal. Ch., 15. 
 
 1129. letting aside execution sale. Irregularities in a sale 
 under an execution must be corrected by applying to the Court out of 
 which the writ issued, to set the sale aside.. Theise must be fraud to give 
 equity jurisdiction ; it is not sufficient there is. irregularity. Camenaiigh 
 V. Jakeway, Wal. Ch., 344. 
 
 1130. In restraining proceedings at law, equity does not 
 assume jurisdiction over the Courts in which they are had, but restrains 
 the proceedings by controlling the parties thereto by injunction. Bur- ' 
 pee V. Smith, Wal. Ch., 337. 
 
 3. DiSCOVEKT. 
 
 1131. Equity will compel a discovery in aid of a defense at law, 
 and stay proceedings at law tintil an answer to a biU for discovery can 
 be obtained. Wright v. King,.B.&T:. Ch., 13. 
 
 1132. Where a bill is ffied.for relief, the discovery is ancillary ; and 
 a demurrer which. is good to the relief is good to the discovery. And 
 where a complainant is entitled to discovery only, and goes on by his 
 
 146, 
 
EQUITY: GENERAL PRINCIPLES. §1170 
 
 1101. That a [fraudulent grantee shall hold in trust for the person 
 equitably entitled, see Adams v. Br/uUey, 12 Mich.,346. 
 
 1162. Where in a voluntary assignment for the benefit of creditors it 
 is provided that the assignees shall proceed to sell the property and pay 
 the debts within such time as to them shall seem meet, this puts the exe- 
 cution of the trust under the control of the Court of Chancery, which 
 will compel the assignee to use reasonable diligence. SoUister v. Lovd, 
 3 Mich., 309. But see what is said on this subject in Sutton v. Eanford, 
 11 Mich., 373. 
 
 6. Bills of Peace akd to Quiet Title. 
 
 1163. Bills of peace are only allowed where the complainant 
 has established his right at law, or where the persona who controvert 
 the right are so numerous as to render an issue under the direction of 
 Chancery indispensable to embrace all the parties concerned, and save 
 a multiplicity of suits. County Oommiasioners of Lapeer o. Ha/rt^ Har. 
 Ch., 157. 
 
 1164. An injunction staying proceedings in sixty seven suits at law 
 on county orders, was dissolved, on the ground that the defense was at 
 law. IIM. 
 
 1165. Settling titles to land. The Court of Chancery is not 
 the appropriate tribunal to try conflicting titles to land generally. Be- 
 vaux v. Mayor, dc, of Detroit, Har. Ch., 98 ; Blackwood v. Van Vleet, 11 
 Mich., 252. 
 
 1166. Annulling patent. After confirmation of a claim to land 
 by the Board of Land Commissioners under the act of Congress of May 
 11, 1830, and after patent issued, if it be competent for a Court of equity 
 to go behind the patent to settle conflicting claims, it should only be 
 done upon the clearest and most irrefragible proof Bernard v. Heirs of 
 Bouga/rd, Har. Ch., 130. 
 
 1167. Quieting title. Where the complainant is in possession 
 of land, the Court of Chancery is expressly authorized by statute — Code 
 1838, p. 358 ; Comp. L., § 3490— to adjudicate upon conflicting claims. 
 Rowland v. Doty, Har. Ch., 3. 
 
 116S. The complainant must show a complete title in himself, or a 
 right to such title, before he can call upon a defendant to release. Stock- 
 ton v. Williams, Wal. Ch., 130. 
 
 1169. He must show : 1, Possession ; 2, A legal or equitable title ; 
 3, A claim set up by the defendant ; 4, His own claim must be substan- 
 tiated, pe cannot rely upon the weakness of his adversary's title. Same 
 case, 1 Doug., 546. 
 
 1170. A Court of equity will not restrain a person from asserting a 
 title to real estate in the course of judicial proceedings, or decree a re- 
 
 151 
 
§ 1178 EQUITY: GENERAL PRINCIPLES. 
 
 lease by one to another, unless in a case entirely free from doubt. 
 Ibid. 
 
 1171. A bill to quiet title wiU be entertained on behalf of the legal 
 owner when he is not in a position to force the adverse claimant into a 
 Court of law to test its validity ; but when each party claims the legal 
 title, and a Court of law is already possessed of the case, and it is not 
 alleged that either fraud, accident or mistake has intervened to prevent 
 the possessor establishing his title at law, equity mil not interfere on 
 his behalf. Moran v. Palmer, 13 Mich., 367. 
 
 1172. Bill against one in possession of lands claiming them under 
 tax titles, to have these titles declared void, and complainant's right to 
 the lands quieted, and for an injunction to restrain the commission of 
 waste by defendant. Complainant had not established his right at law, 
 and had brought no suit for the purpose. Held that the bill could not 
 be sustained. Blackwood v. Van Vleet, 11 Mich., 252. 
 
 1173. The fact that there may be two new trials in an action of 
 ejectment, is no reason for the interposition of equity to try titles to 
 land. Ibid. 
 
 1174. Persons cannot be joined as defendants to a biU for this pur- 
 pose whose claims to the land are in no way connected. Sunton v. 
 Plm, 11 Mich., 364. ' 
 
 1175. A bill was filed to quiet complainant's title to land bounded 
 on a river, of the whole of which he was in possession, except a small 
 portion, being a boom, embracing the bed of the stream and a footpath 
 along the bank. His title to the whole was the same, and was un- 
 doubted. A decree quieting his title to the whole was afiSrmed. FUs- 
 hugh V. Barnard, 12 Mich., 104. 
 
 1176. But the Court cannot go further, and take an account of the 
 rents and profits of the boom whUe occupied by defendants as wrong 
 doers. Ibid. 
 
 1177. Possession by complainant, ostensibly of the whole land, and 
 rightfully at least for an undivided half, is sufficient to enable him to main- 
 tain a biU under the statute to quiet his title against a third person 
 claiming it. Blanehard v. Tyler, 12 Mich., 339. 
 
 1178. Cloud upon title. Where an illegal tax is assessed upon 
 lands, and by statute the deed given on a sale of the land therefor would 
 be prima facie evidence of regular proceedings in the assessment and 
 subsequent steps to a sale, such sale would operate to create a cloud 
 upon complainant's title, notwithstanding the illegality must appear on 
 the face of the proceedings ; and the owner may therefore maintain a 
 bill in equity to stay the tax sale. Palmer v. Sie?i, 12 Mich., 414. See 
 as to injunctions to restrain public officers in the performance of their 
 duties, supra, 1134 to 1139. 
 
 152 
 
EQUITY: GENERAL PRINCIPLES. § 1155 
 
 4 Fhatjd, Mistake, &c. 
 
 1149. A contract by which lands were exchanged for goods, set 
 aside for fraud in representations in regard to the land. Jones v. Wing, 
 Har. Ch., 301. And so where lands were exchanged for lands with 
 similar representations. Rood v. Chopin, "Wal. Ch., 79. See supra, 1115 
 to 1117. 
 
 1150. So where one had purchased lands at a tax sale, but on appli- 
 cation by the owner had agreed to assign to him the tax certificate, and 
 the owner was induced not to redeem the land from the sale m conse- 
 quence of this promise, but after the time for redemption expired the 
 tax purchaser obtained a deed from the Auditor-General to himself, he 
 was decreed to convey to the owner on being paid the tax bid and in- 
 terest. Laing v. McKee, 13 Mich., 134. 
 
 1151. Party must act promptly. A party entitled to rescind 
 a contract must not sleep on his rights, or take time to speculate on the 
 course of events. If he goes on, with a full knowledge of his rights, re- 
 cognizing the contract as still in force, and by his acts and conduct 
 tacitly gives his assent to its execution in a manner different from the 
 original understanding of the parties, he is not entitled to have the con- 
 tract rescinded, or to any relief inconsistent witli what may fairly and 
 reasonably be presumed, from his own acts, to have been assented to by 
 him. Be Armand v. PAiUips, Wal. Ch., 186. 
 
 1132. An assignee of a contract cannot insist upon fraud used in 
 making the contract, on the party under whom he claims. CarroU v. 
 Potter, Wal. Ch., 355. 
 
 1153. mistake. Where a lot which had been surveyed, located 
 and platted on a diagram, was sold by an erroneous description, but the 
 purchaser and all succeeding purchasers occupied it as marked out by 
 the survey, a decree was made to correct the mistake, and releases were 
 ordered to be made between the parties, whose lands were affected by 
 the erroneous description, to make their lots conform to the location. 
 Mrris i>. Hiird, Wal. Ch., 103. 
 
 1154. Defense of failure of consideration. A mistake 
 in description occurred in a deed given on behalf of the United States, 
 of a lot in Detroit, in exchange for other lands. The city was after- 
 wards, by act of Congress, made the donee of the undisposed of lands on 
 the city plan. To a bill filed against the city to correct the mistake. 
 It is not a valid defense that the title to the land given to the United 
 States in exchange subsequently failed. Farmers and Mechanies' Bank 
 V. City of Detroit, 13 Mich., 445. 
 
 1135. Defense of bona fide purchase. Neither the city, 
 as donee of the United States, nor persons taking conveyance from the 
 
 149 
 
§ 1160 EQUITY: GENERAL PRINCIPLES. 
 
 city with notice, can claim protection, as bona flde purchasers, against 
 such correction. lUd. 
 
 1136. Laclies. The deed was given in 1816. The grantee took 
 possession of the land intended to he conveyed, and he and his grantees 
 retained it until 1848, when the city went into possession. A bill was 
 filed in 1861 to correct the mistake. Held that the remedy was not lost 
 by laches. Ibid. 
 
 1137. Mistake in voluntary deed. Bills by purchasers for 
 a valuable consideration from the grantee, against the heirs and admi- 
 nistrator of the grantor, to reform a deed by correcting the |descrip- 
 tion of the lands, which, by reason of the omission of four out 
 of fourteen courses and distances, embraced but a small portion of 
 the lands intended to be conveyed. Defense — which was fully proved 
 — that the deed was made without consideration, and for the purpose of 
 defrauding the creditors of the grantor. There was no proof of debts 
 existing against the estate of the grantor at the time the bills were filed, 
 but the administrator was taking proceedings in the Probate Court for 
 the sale of the lands — for what purpose did not appear. The deeds to 
 complainants described the respective parcels purchased by them cor- 
 rectly. Both parties to the fraudulent conveyance were dead before 
 the mistake was discovered. A full consideration was described in this 
 deed ; the grantee assumed possession and control of tlie premises under 
 it, and the grantor, who died before complainants purchased, had 
 always after giving the deed represented, and twice made oath, that the 
 land belonged to the grantee. Whether equity can reform the deed in 
 such case, qimre, the Court being equally divided. Quirk v. TTumias, 6 
 Mich., 76. 
 
 113S. Refusing relief because of mistalce. A mistake 
 in a deed or other written instrument is a good ground for refusing re- 
 lief to which complainant would otherwise be entitled. Garlinghouse v. 
 Dixon, Wal. Ch., 440. 
 
 1159. Reforming; contract. Equity will not reform a con- 
 tract by the addition of new provisions which, it is claimed, were em- 
 braced in the understanding of the parties when the contract was 
 made, where there is no allegation of fraud or mistake in drafting the 
 contract. White ». Port Huron and Milwaukee BaUway Gompany, 13 
 Mich., 356. 
 
 5. Tkusts. 
 
 1160. Where one procured an allowance to himself of a claim due 
 to a tliird party under a treaty, and received the money upon it, he was 
 held the trustee of the rightful claimant. Edwards v. Mulbert, Wal. 
 Ch., 54. 
 
 150 
 
EQUITY : GENERAL PRINCIPLES. § 1202 
 
 1194. The execution cannot be legally returned unsatisfied until 
 the return day. Smith v. TJwmpaon, Wal. Ch., 1 ; Beach «. Wiite, Wal. 
 Ch., 495. But a return on the return day is good. Williams v. Hubbard, 
 1 Mich., 446. 
 
 1195. A return of an execution against two defendants, that they 
 have no goods or chattels, lands or tenements, without in terms nega- 
 tiving the fact that either of them had, is sufficient. WilMams v. Hub- 
 bwrd, 1 Mich., 446. 
 
 1196. Return conclusive. The return of the execution is 
 conclusive between the parties to the suit, when it is good on its face, 
 and has not been made by collusion between the creditor and the officer, 
 or by direction of the creditor. Albany City Sank v. Dorr, .Wal. Ch., 
 317. 
 
 1197. Delay after return. The execution must be returned a 
 reasonable time before the bill is filed. Nine years is not a reasonable 
 time ; and where a bill was filed on an execution returned nearly nine 
 years before, a motion for a receiver was denied. Qovld v. Tryon, Wal. 
 Ch., 353. 
 
 1198. Xew execution. The issuing of a new execution does 
 not take away the right to file a creditor's bill which has once accrued 
 by the return of an execution unsatisfied. Clark v. Davis, Har. Ch., 
 237. 
 
 1199. A strict and ri§rid compliance with all the rules of 
 law must be shown by a judgment creditor, before the Court will ad- 
 minister the harsh remedy of depriving the debtor of all control of his 
 property. Tliayer v. Swift, Har. Ch., 480. See Smith v. Thompson, Wal. 
 Ch., 1. 
 
 1200. But 'wbere a lien has been acquired by the levy 
 of an execution, and a fraudulent obstruction is interposed by the 
 debtor, a bill may be filed to remove such obstruction. Thayer ii. Swift, 
 Har. Ch., 430. But it cannot be filed to set aside a fravidulent convey- 
 ance until levy is made. McKibben v. Barton, 1 Mich., 313, overruling 
 on this point. Beach v. Wliite, Wal. Ch., 495. 
 
 1201. Void levy. An attachment was served on an equitable in- 
 terest not subject to levy. The defendant was not served with process, 
 and did not 'appear in the suit. It was held 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. Traskv. Green, 9 Mich., 358. 
 
 1202. Death of defendant. The filing of a bill to reach 
 equitable assets, without answer or the appointment of a receiver, cre- 
 ates no lien upon the debtor's property ; and complainant, upon defen- 
 
 155 
 
§ 1312 EQUITY: GENERAL PRINCIPLES. 
 
 dant's decease in such case, loses his right to prosecute the suit. 3one» 
 V. Smith, Wal. Ch., 115. 
 
 1203. Defense to §uit. The regularity of the judgment and 
 execution cannot be inquired into on a judgment creditor's bill. Wil- 
 liwms V. Bubbwrd, 1 Mich., 446. 
 
 1204. It is a good plea to the bill that while the execution was out 
 the defendant offered to turn out real estate for the officer to levy on, 
 which the officer, under instructions from the plaintiff's attorney, refused 
 to accept. Wha/rton v. Fitch, Wal. Ch., 143. 
 
 1205. But the creditor is not bound to point out property to be 
 levied upon ; he has done all that the law requires of him when he has 
 placed his execution in the hands of the sheriff, whose duty it is to make 
 the money. Albany City. Bank v. Dorr, Wal. Ch., 317. 
 
 1206. ]Von-Joinder. Where one of several judgment debtors 
 is wholly u-responsible and destitute of property, he need not be 
 joined as defendant. Williams v. Subbard, 1 Mich., 446. 
 
 1207. Bill against stockholders in corporations. In- 
 dependent of statutory provisions, chancery may, on behalf of the 
 creditors of corporations, compel stockholders to pay in any amount 
 that may be unpaid on their stock. Pettibone v. McOraw, 6 Mich., 441. 
 
 1208. Parties. To a creditor's bill against stockholders in a cor- 
 poration, after execution against the corporation returned unsatisfied, 
 it was held not necessary to make aU the stockholders defendants. 
 IMd. 
 
 1209. Fraudulent corporators. Bill sustained to enforce 
 a demand against parties charged with having assumed to organize 
 under the general banking law, and fraudulently contracted debts. It 
 is immaterial that in another suit by a different creditor they have been 
 treated as a corporation and a receiver appointed. Wheder v. Clinton 
 Canai Bank, Har. Ch., 449. See Cook v. Wheeler, Har. Ch., 443. 
 
 1210. The rules applicable to ordinary creditors bill do not apply 
 to such a case. Ibid. 
 
 10. Limitation, Laches and Lapse of Time. 
 
 1211. A party seeking to set aside a conveyance on the ground of 
 fraud, must be prompt in communicating the fraud when discovered, 
 and consistent in his notice to the opposite party of the use he intends 
 to make ot it. Disbrow v. Jones, Har. Ch., 103 ; Street v. Dow, Har. Ch., 
 437. And see Supra, 1151 ; McLean v. Barton, Har. Ch., 379. 
 
 1212. Where complainant had rested several months after he had 
 knowledge of the fraud complained of, and until the condition of the 
 property had changed, before he took any steps to rescind the contract, 
 
 156 
 
EQUITY : GENERAL PRINCIPLES. § 1184 
 
 1179. Parol evidence to divest title. To warrant a Court 
 of equity in divesting a title to land, on parol evidence that an unre- 
 corded deed given therefor was subsequently, hy agreement between 
 the parties, surrendered by the grantee to be cancelled, the preponder- 
 ance of evidence should be clear, and the proof so convincing as to 
 leave no reasonable doubt upon the mind. Murder v. Sopkins, 13 Mich., 
 337. 
 
 7. Pabtition. 
 
 11§0. Courts of equity have jurisdiction and will entertain proceed- 
 ings for partition of lands. Thayer v. Lane, Har. Ch., 347. And now 
 by statute full jurisdiction is given. See Comp. Z., Oh. 135. 
 
 1181. On bUl filed by tenants in common, an administrator who was 
 proceeding to sell under a probate license a larger interest in the lands 
 than the estate had, was enjoined from making the sale until the interest 
 was ascertained and settled. Thayer «. I,ane, Har. Ch., 347. 
 
 11§2. 9fot permitted in violation of agreement. Where 
 the owner of lands conveyed an undivided moiety to another, for a sum 
 of money which was less than its value, to be paid from the proceeds 
 of sales to be made of the lands, and which was secured by mort- 
 gage on the lands, and a part of the consideration consisted in 
 the services of the purchaser in taking charge of and selling the 
 joint property under a contract between them, and a principal part 
 of thejseller's security for the purchase price, and for the efficiency and 
 fidelity of the purchaser in the management and sale of the property, 
 consisted in the control he would have over the sales of the purchaser's 
 interest, it was held, that so long as the seller was not guUty of refusal 
 to perform his part of the contract, or of any default which would re- 
 lieve the purchaser from the obligation to perform, or prevent his per- 
 formance, the latter was not entitled to partition. Avery v. Payne, 13 
 Mich., 540. 
 
 11S3. Mortgages executed by the seller on his own undivided half, 
 not alleged or shown to have interfered with sales, or otherwise to have 
 operated to the prejudice of the purchaser, will constitute no reason for 
 partition. Ihid. 
 
 8. C03SrDlTION8 AKD PENALTIES. 
 
 1184. Relief against conditions. Relief maiy be given 
 against the breach of a condition precedent in the nature of a penalty ; 
 and there is no good reason wliy it should not be given in the case of a 
 condition precedent, when it would be against a condition subsequent. 
 The substantial question is, not whether the condition is precedent or 
 
 153 
 
§ 1193 EQUITY: GENERAL PRINCIPLES. 
 
 subsequent, but whether compensation can or can not be made. CMp- 
 man v. Thompson, Wal. Ch., 405. 
 
 11 §S. The Court is not bound, in all cases where compensation can 
 be made, to give relief ; for the party seeking relief may have so con- 
 ducted himself as to have lost all claim to its interposition ; but where 
 this is not the case, and it is equitable under the circumstances that 
 relief should be given, it is competent for the Court to give it. Ibid. 
 
 11§6. Relief given where the condition — ^which was to support the 
 grantor — had not been strictly performed by the guardian of a minor. 
 Ibid. 
 
 1187. Enforcing' penaltle§. Equity will not lend its aid to 
 enforce a penalty or forfeiture. Crane v. Dwyer, 9 Mich., 350 ; White v. 
 Port Huron and Milwaukee BaUway Co., 13 Mich., 356 ; Wing v. Bailey, 
 14 Mich. 
 
 1188. Under a contract for the purchase of lands the vendee took 
 possession and erected a dwelling. The vendor subsequently declared 
 the contract forfeited for non-payment of an instalment of purchase 
 money. Pending proceedings to recover possession, he applied for an 
 injunction to restrain the vendee from removing the house. Injunction 
 refused, on the ground that to grant it would be aiding to enforce a for- 
 feiture. Crane v. Dwyer, 9 Mich., 350. 
 
 9. Cbbditoii's Bills. 
 
 1189. In wliat cases. There are two classes of cases in which a 
 creditor may come into chancery for relief First, In aid of his execu- 
 tion at law. Second, To have his judgment satisfied out of choses in 
 action, or other property of the debtor not liable to execution. WiUiams 
 V. Hubbovrd, Wal. Ch., 28. 
 
 1190. In the first class of cases the complainant must show that an 
 execution has been sued out, but it is not necessary to show that it has 
 been returned. lUd. And see Beach v. White, Wal. Ch., 495. 
 
 1191. In the second class there should appear an execution issued, 
 and returned unsatisfied in whole or in part ; and this should be shown 
 by the officer's return. WiUiams v. Eubbard, Wal. Ch., 28 ; Steward s. 
 Stevens, Har. Ch., 169 ; Thayer v. Swift, Har. Ch., 430 ; Stafford v. Sid- 
 hert, Har. Ch., 435 ; Smith v. Thompson, Wal. Ch., 1 ; Beach v. White, 
 Wal. Ch., 495. 
 
 1192. Return of execution. The officer's return of an execu- 
 tion, to be sufficient for the purpose of a creditor's bill, must be such as, 
 if untrue, will render him liable for a false return. WiUiams v. Sub- 
 bard, Wal. Ch., 28. 
 
 1193. A return of the execution unsatisfied by order of the party 
 suing it out, is not sufficient. Ibid. 
 
 154 
 
EQUITY PLEADINGS. § 1237 
 
 where their lands joined, and then built his mill at another place, and 
 diverted the water from complainant's land, it was held that the con- 
 sideration had failed, and that complainant was entitled to a reconvey- 
 ance ; and defendant was enjoined from setting up his deed in defense 
 of any action for a previous diversion of the water. Jaeox v. Clark, 
 Wal. Ch., 508. 
 
 1230. Creating lien. Equity cannot create a lien on real estate 
 to secure a debt not contracted on its credit, and not charged upon it 
 by agreement. Bennett v. Nichols, 13 Mich., 33. 
 
 1231. Equal equities. Where the equities of the parties are 
 equal, and neither has the legal title, the prior equity will prevail. 
 WiTig 11. MeOoweU, "Wal. Ch., 175 ; Norris v. Slwwerman, Wal. Ch., 206. 
 
 1232. Subsequently obtaining the legal title in right of another and 
 not in one's own right, or with notice of the prior equity, will not aid 
 the holder of the postponed equity. Ibid. 
 
 1233. Equitable estoppel. Equity will not interfere to re- 
 lieve a party on the ground that assessments are irregular and unau- 
 thorized by the strict provisions of law, where they are substantially 
 authorized and made in reliance upon his own express agreement. 
 Jaokaon v. City of Detroit, 10 Mich., 348. 
 
 1234. Where complainants had verbally promised to allow defend- 
 ants to draw water for running a mill from a certain lake, the outlet of 
 which flowed through complainant's lands, and had suffered them to go 
 on and construct a mill and race at an expense of $3,000 before inform- 
 ing them that they did not intend to abide by the promise, an injunc- 
 tion which had been granted to restrain the taking of the water of the 
 lake for the mill, was dissolved. Payne v. Paddock, Wal. Ch., 487. 
 
 1235. IVew trial at law. Chancery will not award a new trial 
 in a suit at law, on the ground of newly discovered evidence, when the 
 proposed evidence only goes to contradict the evidence given on the 
 former trial in an immaterial point. Morris v. Hadley, 9 Mich., 378. 
 
 1236. Nor on the ground of newly discovered evidence will it de- 
 cree a new trial to enable a defendant to make a wholly difterent 
 defense from that which he made and failed in on the first trial. lUd. 
 
 EQUITY PLEADINGS. 
 
 1. The Bill. 
 
 1237. Averments to be positive. Facts essential to the 
 complainant's title to maintain his bill and obtain the relief, must be 
 alleged positively, and cannot be inferred from other facts stated. 
 Manning v. Drake, 1 Mich., 34. 
 
 159 
 
§ 1246 EQUITY PLEADINGS. 
 
 123§. A Tjill to reach land alleged to have been fraudulently con- 
 veyed by a judgment debtor, is bad on general demurrer if it contain no 
 direct averment that at the time of the alleged fraudulent conveyance 
 the debtor had, or pretended to have, an interest in the lands. Ihid. 
 
 1239. ATerment of administration. An averment that A. 
 and B. were appointed and acted as administrators, without alleging 
 that they accepted the trust, is sufficient. lUd. 
 
 1240. But a bill to foreclose a mortgage in which complainants de- 
 scribe themselves as executors of the last will and testament of the 
 mortgagee, but without setting out his death, and in no way alluding to 
 the probate of the will, shows no right of action in complainants. 
 Middlesworth v. Nmon, 3 Mich., 425. 
 
 1241. Certainty. An allegation that W. was declared a bank- 
 rupt, and that "by virtue thereof all the property, effects and rights of 
 property of W. became divested out of him and vested in H., the official 
 or general assignee in bankruptcy, appointed and designated under the 
 act of Congress by the said District Court," is a sufficient allegation 
 that H. was the assignee in bankruptcy of W. WiUiams v. Hubhwrd, 1 
 Mich., 446. 
 
 IfHa. No relief can be given on evidence establishing a case not 
 stated in the bill. Thayer v. Lane, Wal. Ch., 200 ; Jerome i>. HopMns, 2 
 Mich., 96 ; Cicotte v. Oagrder, 3 Mich., 381 ; Wmmer «. Whittaker, 6 
 Mich., 133 ; Bloomer v. Henderson., 8 Mich., 395 ; Bomier a. CMweH, 8 
 Mich., 463 ; Barrows ». BoMghman, 9 Mich., 213 ; Wurcherer v. Hewett, 
 10 Mich., 458; PeeWuum v. Buffum, 11 Mich., 539; Dunn v. Dunn, 11 
 Mich., 284 ; Perkins t>. Perkins, 12 Mich., 456 ; Moran i). Palmer, 13 
 Mich., 367. 
 
 1243. The bona fide assignee of a mortgage, not charged in the bill 
 with knowledge of the complainant's equities against the assignor in 
 respect to the mortgage, will not be held affected with those equities. 
 Cicotte «. Oa^nier, 2 Mich., 381. 
 
 1244. Where a bill contains a general charge against a defendant, 
 of co-operation with other defendants to procure a deed to the latter, 
 but makes no specific charge against him predicated upon or sustained 
 by any statement of facts, which could be met and denied, admitted or 
 explained by the answer, neither his acts nor omissions are put in issue. 
 Dawson v. HaU, 2 Mich., 390. 
 
 1245. Estoppels, where they form the foiindation of the relief 
 asked, and are relied on to defeat a legal title, cannot be proved unless 
 alleged in the bill. Cicotte v. Gagnier, 3 Mich., 381 ; Moran v. Palmer, 13 
 Mich., 367. 
 
 1246. Reference to deed. By referring in the bill to a deed 
 or other written insrument, as follows : " as in and by the said indenture, 
 
 160 
 
EQUITY : GENBBAL PRINCIPLES. § 1220 
 
 the Court refused to interfere, and left him to his remedy at law. Dis- 
 brow V. Jones, Har. Ch., 102. 
 
 1213. The defense of the statute of limitations and lapse of time 
 may be made by demurrer. Campau v. CJiene, 1 Mich., 400 ; McLean 
 V. Barton, Har. Ch., 279. And if there be -,any ground of exception 
 within the statute to prerent the bar, or ground to rebut the presump- 
 tion arising from lapse of time, it should be stated in the bill. Cam/poM 
 V. Ohme, 1 Mich., 400. 
 
 1214. Delay of twenty years after the right accrued not being in 
 any way excused, a demurrer to a bill to compel a conveyance of lands 
 was sustained. McLean v. Ba/rton, Har. Ch., 279. 
 
 1215. What delay not unreasonable. Where a biU, ask- 
 ing, among other things, relief against a note, was filed within three 
 years and a half after it was given, and within six months after it fell 
 due, the delay was held no ground for refusing relief. Bchwarz ■d. Wen- 
 ddl, "Wal. Ch., 267. 
 
 1216. Disabilities. In the case of presumptive bar from lapse of 
 time, the rule as to subsequent disabilities is different from that of the 
 statute of limitations. Under the statute the party must bring himself 
 within the exceptions of the statute, whereas in cases of presumptive bar 
 he may show any circumstance that outweighs the presumption. Abbott 
 V. Qodfroy's heirs, 1 Mich., 178. 
 
 1217. Equity asserted against an equity. The rule of 
 limitation wiU be applied where a bare equity is sought to be enforced 
 against an equity ; and will not be confined to cases where it is sought 
 to enforce an equity against the legal estate. Oampau v. Oliene, 1 Mich., 
 400. 
 
 11. Set Off. 
 
 1218. A party seeking to make a set off in equity beyond that given 
 by the statute, must show affirmatively the existence of all the facts 
 necessary to raise the equity. Lockwood v. BecTcwith, 6 Mich., 168. 
 
 1219. Equity will not allow a set off where the law would not, 
 unless there be special equities, growing out of the transaction itself, 
 requiring it. Ibid, 
 
 1220. Insolvency. Where a partnership became insolvent, and 
 made a general assignment for the benefit of creditors, including there- 
 in a note past due, and the maker of the note held the acceptance of 
 the partnership not then due, it was held that the insolvency of the 
 acceptors was not, of itself, suflScient to authorize a set off in equity of 
 the acceptance against the note in the hands of the assignee, in the 
 absence of evidence that the acceptance was based upon the note, or 
 
 157 
 
§ 1339 EQUITY: GENEEAL PRINCIPLES. 
 
 that the maker of the note trusted to it at the time, as a means of dis- 
 charging Us obligation. Ibid. 
 
 1221. The insolvency of one party, in the case of mutual credits, is 
 not of itself sufficient to authorize an equitable set off. Hale «. Holmes, 
 8 Mich., 37. 
 
 1222. Mutnality. Equity cannot compel a vendor to receive his 
 own paper on the contract of sale, when he has not agreed to do so, and 
 the purchaser has not bound himself to take and pay for the property. 
 It is not a case for set off, inasmuch as there is no contract on the part 
 of the purchaser against which to allow the paper. Ibid. 
 
 1223. The bill cannot be sustained unless the party seeking to 
 obtain the set off is the real owner and has the control of the counter 
 claim, so that the creditor who sues him is his debtor as to the claim 
 offered in reduction. McOrom v. Pettibone, 10 Mich., 530. 
 
 1224. So held where stockholders in an insolvent plank road com- 
 pany, against whom decree had been rendered for debts of the com- 
 pany, sought to set off against the decree demands in favor of the 
 company. Ibid. 
 
 1225. Former suit as a bar. A set off against a judgment 
 cannot be made in equity of demands which might have been proved in 
 reduction of plaintiff's claim in the former suit. Ibid. 
 
 1226. But where in the foreclosure of a mortgage given for the pur- 
 chase price of land, the defendant sought to set off certain incum- 
 brances which were a lien on the land when he bought, and the relief 
 was denied because he had not paid off the incumbrances, and he paid 
 them off after decree, it was held that he might then file a bill to have 
 the set off allowed. Detroit and Milwaukee R. B. Co. v. Griggs, 13 
 Mich., 45. 
 
 13. Miscellaneous Matters. 
 
 1227. liost note. To give equity jurisdiction where recovery 
 is sought of the amount of a lost note, it is not necessary that it 
 should be lost before due. Ch-een v. Stone, Wal. Ch., 109. See Comp. 
 L., §§ 4334, 4335, 4336 and 4438, for provisions as to the remedy at law 
 upon lost notes. 
 
 122S. Contribution. Where complainants, who were the own- 
 ers of three-fourths of a water power, were compelled to purchase a 
 piece of land to secure to the proprietors of the power the right to 
 flow it, equity will not compel the owner of the other fourth to con- 
 tribute to the purchase. Norris v. Hill, 1 Mich., 303. 
 
 1229. Failure of consideration. Where defendant received 
 a grant of the right to use certain water power, and dig a race on com- 
 plainant's land, in consideration of erecting a mill at a certain place 
 158 
 
EQUITY PLEADINGS. § 1254 
 
 reference being thereunto had, when produced will more fully and at 
 large appear" — the whole document referred to is made a part of the 
 record, although not fully and accurately described in the bill ; and the 
 complainant may, at the hearing, avail himself of the portions not 
 recited, as well as of those inaccurately set forth. SweUand v. Swetland, 
 3 Mich., 483. 
 
 1247. Abbreviated names : allegation of identity. A 
 bill to foreclose a mortgage given by Alexander Eaton, junior, to 0. P. 
 Ramsdell, was filed by Orrin P. Ramsdell against Alexander Eaton. 
 The bill was in the usual form, but contained no direct averment that 
 the parties to the suit were identical with the parties to the mortgage. 
 Held sufficient on pro oonfesso. The question of identity would have 
 been open to proof if disputed. BamsdeU » Eaton, 13 Mich., 117. 
 
 124S. Legal effect. It is sufficient to allege the undertaking in 
 a written instrument according to its legal effect. JeroTm v. Hopkins, 2 
 Mich., 96. 
 
 1249. Charge of fraud. Where an act alleged in the bUl to 
 have been done does not of itself import a fraud — a fraudulent intent 
 must be charged; but no such averment is requisite where from the 
 statement of facts fraud is plainly to be inferred. Hale v. Ghandler, 3 
 Mich., 531. 
 
 1230. Averment of notice. Bill to enforce a buUder's lien 
 upon real estate, and to have it declared a prior lien to a certain mort- 
 gage taken with notice. But the bill did not allege such notice, and it 
 was held that it was not in issue. Barrows v. Bcmghinan, 9 Mich., 313. 
 And see Bloomer «. Henderson, 8 Mich., 395. 
 
 1251. Exception in statute. Where a bill is filed under a 
 statute, and there is an exception in the enacting clause, it must nega- 
 tive the exception ; but where there is no exception to the enacting 
 clause, but an exemption in a proviso thereto, or a subsequent section 
 of the act, it is matter of defense, and must be shown by defendant. 
 Attorney General v. OaUand County Bank, Wal. Ch., 90. See Myers 
 V. Carr, 12 Mich., 63. 
 
 1232. OfiTer to refund. Bill to set aside a tax title fraudu- 
 lently obtained by defendant. It is not necessary to offer in the bill to 
 refund the money paid by defendant therefor. Taylor v. Snyder, Wal. 
 Ch., 490. 
 
 1233. Amount in controversy. Where, in a suit respecting 
 property, (not a foreclosure suit, or between partners), the bill shows 
 the amount in controversy to be less than one hundred dollars, the 
 Court must dismiss the bill whether the objection of want of jurisdic- 
 tion is taken by the defendant or not. Gamber v. Holben, 5 Mich., 331. 
 
 1234. But a bill to restrain the collection of a tax, which states its 
 
 11 161 
 
i 1263 EQUITY PLEADINGS. 
 
 amount as about one hundred and fifty dollars, sufficiently shows It to 
 be over one hundred. Palmer 13. Rich, 12 Mich., 414. As to case of 
 nuisance, see supra 1141. 
 
 1255. Parties. Only those whose interests would be affected by 
 the decree need be made parties. To a biU to correct a mistake in a 
 deed, one whose land is bounded on the land in controversy is not a 
 necessary party where it is not sought to change the location. Norris 
 V. Hurd, Wal. Ch., 102. See also Suydam v. Dequindre, Har. Ch., 347. 
 
 1256. Complainants with diff'erin'g interests. The ex- 
 ecutors and devisees of a deceased tenant in common, not asking par- 
 tition among themselves, may jointly file a bill to have their interests 
 set off from that of the co-tenant. Page v. Webster, 8 Mich., 363. 
 
 1257. Interest incorrectly stated. Defendants were de- 
 scribed in the bill as heirs of their father, when in fact they claimed as 
 heirs of their mother. It was held that they were properly made par- 
 ties as claiming an interest in the property in controversy ; it was too 
 late to take the objection for the first time at the hearing that their 
 interest was not properly made to appear by the bill ; proofs having 
 been taken, and the proper parties being before the Court. Chipman d. 
 Thompson, Wal. Ch., 405. 
 
 125§. Assignor need not be a party. The assignor of a 
 judgment, or chose in action on which a judgment has been obtained in 
 the name of the assignor, is not a necessary party to a judgment cred- 
 itor's bill filed by the assignee. Morey v. Forsyth, Wal. Ch., 465. 
 
 1259. But where there is a controversy between the assignor and 
 assignee, touching the assignment, the Court will direct the assignor to 
 be made a party for the protection of all. Ibid. And he may be made 
 a party in any case. Beach d. White, Wal. Ch., 495. 
 
 1260. Where the judgment creditor has assigned the demand upon 
 which the judgment was rendered, to secure a debt of equal amount, 
 the assignee alone, or those succeeding to his rights, can bring suit in 
 equity to enforce the judgment. Andrews v. Ktbbee, 12 Mich., 94. 
 
 1261. The fact that, in such a case, one of the defendants has be- 
 come the assignee, will not enable the complainant to sustain his bUl, 
 which avers the ownership to be in himself; since the testimony show- 
 ing the assignment would also show that complainant had no right of 
 action such as he set out in his bill. Ibid. 
 
 1262. Cestui que trust. Where the object of the bill is merely 
 to collect money, or reduce it to possession, it is not necessary for the 
 holder of a chose in action to make his cestuis que trust parties, though 
 the rule is otherwise where the existence or enjoyment of trust property 
 is to be affected by the prayer of the bill. Cook v. Wheder, Har. Ch., 
 443 ; Wheder v. Clinton Canal Bank, Har. Ch., 449; Sill v. Ketcham, Har. 
 
 162 
 
EQUITY PLEADINGS. § 1373 
 
 Ch., 423; M(wHn v. McReynolds, 6 Mich., 70; Adams v. BraMey, 12 
 Mich., 346. 
 
 1263. The holder of the legal title is a necessary party 
 where the holder of the equitable title flies a bill to foreclose a mort- 
 gage. Martin v. McJReynolds, 6 Mich., 70. 
 
 1264. The grantee of one who has conveyed lands with warranty, 
 need not be made a party to a bill filed by the grantor to set aside a 
 fraudulent tax purchase which might aflfect his covenants. Taylor v. 
 Snyder, Wal. Ch., 490. 
 
 1265. Identity of Interest among defendants. A bill 
 may be sustained against different persons, relative to matters of the 
 same nature, in which all of the defendants were more or less con- 
 cerned, though not jointly in each act. Wheeler v. Clinton Canal Bank, 
 Har. Ch., 449. 
 
 1266. Where the matter in litigation is entire in itself, it is not 
 necessary that each defendant should have an interest in the suit co- 
 extensive with the claim set up by the bill; he may have an interest in 
 a part of the matter in litigation, instead of the whole. IngersoU v. 
 Kirly, Wal. Ch., 65. 
 
 1267. But where two persons claim different parcels of land by 
 different titles, they cannot be joined as defendants in a bill to quiet the 
 title by one who claims both. Hiinton v. Piatt, 11 Mich., 364. 
 
 1268. A joint maker of a note need not be made a party to a bill by 
 another joint maker to restrain proceedings on a judgment recovered 
 on the note against the latter alone. Bv/rpee v. Smith, Wal. Ch., 337. 
 
 1269. Officers not Interested. A magistrate before whom a 
 judgment was rendered, is not a proper party to a bill to restrain pro- 
 ceedings upon it. But an officer having an execution in his hands still 
 in force, is. Ibid. 
 
 1270. The Auditor General is a necessary party to a bill filed 
 against the county treasurer, to restrain a sale of lands for taxes as- 
 sessed under the drainage law of 1859; the county treasurer being 
 merely his agent in the sale. Palmer v. BieJi, 12 Mich., 414. 
 
 1271. Bnt contractors for making the drains are not necessary 
 parties. Ibid. 
 
 1272. Complainant's interest. It is a good ground of de- 
 murrer to the whole bill that one of the complainants has no interest in 
 the suit; there is no such rule as to defendants. Bwntow v. Smith, 
 Wal. Ch., 394. 
 
 1273. Parties to foreclosure. The sarviTor of two as- 
 signees of a mortgage may foreclose it, and it is not necessary for him 
 to join the personal representative of the deceased assignee. Martin b. 
 McReynoUs, 6 Mich., 70. 
 
 163 
 
§ 1381 EQUITY PLBADmaS. 
 
 1274. Defendants. The fraudulent grantee of a title which is 
 equitably subject to the mortgage, is a proper party defendant. Adams 
 V. BraMey, 13 Mich., 346. 
 
 1275. The mortgage covered two parcels' of land. A defendant 
 answered, claiming one of them by paramount title, and disclaiming as 
 to the other ; and as to the last a decree was taken. It was held that 
 the bill should have been dismissed as to this defendant with costs ; as 
 he was under the necessity of appearing and answering to protect liis 
 interest in the parcel claimed by him. Gregory v. Stanton, 13 Mich., 61. 
 
 1276. The description of premises in the mortgage was erroneous in 
 one particular. To a bill to foreclose it and correct the error, a person 
 is not a proper party who owns lands which would be affected by the 
 erroneous description, but who has never been owner or incumbrancer 
 of any portion of the mortgaged premises as identified by the proofs. 
 RamsdM v. Eaton, 13 Mich., 117. 
 
 1277. Parties not connected ^irith the title. Bill was 
 filed to foreclose a mortgage, which made persons other than the mort- 
 gagor parties, charging that one of them had given a prior mortgage 
 on the same premises, which had been' since paid, but caused to be 
 assigned to one of the other defendants for the purpose of keeping it 
 alive against complainant's mortgage ; and asking that it be decreed to 
 be satisfied^; but the bill did not show any privity of title to the land 
 between the parties to the first and the parties to the second mortgage, 
 or what was the state of the title at any time, ot any obligation on the 
 part of the first mortgagor which would entitle the second mortgagor or 
 his assigns to require him to pay or remove such first mortgage. Held, 
 that the bill showed no title to relief as against the parties to the first 
 mortgage. WHgM v. Dudley, 8- Mich., 113. 
 
 127S. Personal representatives of a deceased mortgagor are 
 not necessary parties to a suit to foreclose the mortgage against the 
 heirs, unless the personal estate is sought to be charged with any de- 
 ficiency. Abbott «. Qodfroy's Heirs, 1 Mich., 178. 
 
 1279. Adverse claimants cannot be made parties to a foreclo- 
 sure suit for the purpose of litigating their titles. The only proper 
 parties are the mortgagor and mortgagee, and those who have acquired 
 rights and interests under them subsequent to the mortgage. Cham- 
 berlain V: LyeU', 3 Mich., 448; Morton »; IngersdU, 13 Mich., 409. 
 
 12§0. But where one claims an iaterest in the equity of redemption, 
 it is proper to make him a party for the purpose of foreclosing such 
 interest, notwithstanding he also claims the land by tax title. Horton 
 V. IngersoU, 13 Mich., 409. 
 
 1281. Prior o-wners. "Where the title of complainant was 
 acquired without warranty, the grantee in a conveyance through which 
 164 
 
EQUITY PLEADINGS. § 1290 
 
 he claims is not a necessary party to a bill to correct a mistake in such 
 conveyance. F<mne/rs and Mechanics' Bank v. City of Detroit, 13 Mich., 
 445. 
 
 12§2. Suretie§ who have undertaken, not for the payment of the 
 mortgage debt, but that the mortgagor shall provide a sinking fund in 
 certain specific securities for its payment, cannot be joined as defend- 
 ants in a suit to foreclose the mortgage under § 3567 of Compiled Laws. 
 Joy V. Jatckson and MMiigam, Plank Mood Co., 11 Mich., 155. 
 
 12S3, Oath to bill. A bill need not be under oath, when no 
 preliminary order is required, notwithstanding an answer on oath is not 
 waived. Atwat&r v. Kinnum, Har. Ch., 243. 
 
 12§4. Bills of discovery. Where a bill seaJss discovery in aid 
 of proceedings at law, complainant must charge in his bill that the 
 facts are known to defendant, and ought to be disclosed to him, and 
 that the complainant is unable to prove them by other evidence ; and it 
 must be affirmatively stated in the bill that the facts sought to be dis- 
 covered are material. CarroU v. Farmers and Mechanies' Bank, Har. 
 Ch., 197. 
 
 1285. Injunction bills. An injunction bill, strictly speaking, 
 is one seeking no other relief. When the bill prays other relief, the 
 injunction is regarded as ancillary to such relief, and falls with it. 
 Blackwood v. Van Vleet,, 11 Mich., 352. 
 
 12S6. Staying proceedings at law. Where an injunction is 
 asked to stay proceedings at law, it is incumbent on the plaintiff to 
 show in his bill the state of the pleadings, and the Court in which the 
 suit is pending, that the officer may judge of the propriety of the 
 allowance, and prescribe the terms on which it shall be issued. OarroU 
 «. Farmers and Mechanics' Bank, Har. Ch., 197. 
 
 12§7. Foreclosure suits : Allegation of assignment. 
 An allegation that an assignment of the mortgage was duly acknowl- 
 edged before a commissioner of deeds, according to the laws of New 
 York, where the same was executed, is sufficient on demurrer. U/o- 
 ingston v. Jones, Har. Ch., 165. 
 
 1288.— averment that debt is due. The allegation that the 
 mortgage debt is due, is material in a foreclosure suit ; and when the 
 answer does not admit it, any proof is receivable to disprove it which 
 would be receivable under the general issue at the common law. Mor- 
 ris v. Morris, 5 Mich., 171. 
 
 1289. An allegation that no part of the mortgage debt has been col- 
 lected or paid, when the bill sets out fully the mortgage, and shows the 
 amount of the several instalments, and when they became due, suf- 
 ficiently shows the amount due. Martin v. McReynolds, 6 Mich., 70. 
 
 1290.— where judgment has been had at law. Where 
 
 165 
 
§ 1296 EQUITY PLEADINGS. 
 
 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 an 
 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 judgment, it was held that the bill could not be maintained ; the 
 statute — Comp. L., § 3569 — forbidding a foreclosure suit after judgment 
 at law, unless an execution has been returned unsatisfied in whole or in 
 part. Oooper v. BresUr, 9 Mich., 534. See Dennis v. Hemingway, Wal. 
 Ch., 387. 
 
 1391. To prevent proceedings on a foreclosure bill, it is not neces- 
 sary that judgment shall have been rendered on the bond or note ac- 
 companying the mortgage, but for the money for which the mortgage 
 was given. Dennis v. Hemingway Wal. Ch., 387. 
 
 1293. — subsequent purchasers. The allegation under Chan- 
 cery 'Bule 91, that a defendant claims an j^iterest in the mortgaged 
 premises " as subsequent purchaser, incumbrancer or otherwise," will 
 not entitle the complainant to show that a deed to such defendant, sub- 
 sequent to the mortgage but recorded first, is fraudulent. If he claims 
 the deed to be fraudulent, he must set forth in the bill the facts which 
 show the fraud. Wurcherer v. Heioettj 10 Mich., 453. 
 
 1393.-4ndeinnity mortsrage. Bill by persons who had guar- 
 anteed the performance of a covenant to pay certain debts, to foreclose 
 an indemnity mortgage. They averred that they had paid on the debts 
 $1,000, " as they were obliged to do by the terms and legal efiect " of 
 the covenant, " on account of the default" of the covenantor. It was 
 held that this was a sufficient statement that they had paid after their 
 liability accrued, and that it was not necessary to set forth in the bill 
 the particular sums paid. Dye v. Mann, 10 Mich., 291. 
 
 1394. It is immaterial in such case that the payment of the debts 
 was by part of the defendants only, and not by aH jointly. Ibid. 
 
 1295. Creditors' Wlls. Rule 109 [of 1839] required the bill to 
 state, either positively or on belief, the true sum due on the judgment ; 
 that defendant had equitable interests, &c., to the value of $100 or 
 more, which complainant had been unable to reach ; and that the bill 
 was not exhibited by collusion, &c. The bill was bad if it &iled to 
 set forth these facts ; and they must be sworn to. dark v. Davis, Har. 
 Ch., 227. 
 
 1396.— to avoid fraudulent conreyance. Where a cred- 
 itor seeks in chancery to reach property alleged to have been purchased 
 with the money of his debtor, and conveyed to the debtor's wife to 
 keep the same beyond the reach of creditors, he must show either that 
 166 
 
EQUITY PLEADINGS. § 1304 
 
 his debt existed at the time, or that the debtor was indebted to others, 
 and that the purchase money was paid by him and the deed taken to 
 his wife with actual intent to defraud existing creditors ; or that the 
 purchase money was paid by the debtor and the conveyance taken to 
 the wife for the purpose of defrauding future creditors. Hopson v. 
 Payne, 7 Mich., 334 
 
 1297. Where the bill was inconsistent; averring in one part that 
 the purchase price was paid by the wife, and in another that the hus- 
 band paid the money, or furnished the money wherewith it was pur- 
 chased by the wife; it was held that, as the law presumes honesty 
 rather than fraud, it was to be inferred that the wife paid for the land 
 with her own money rather than the contrary. lUd. 
 
 1298. Partition : §tateinent of interesti. Bill by execu- 
 tors and devisees set forth that the undivided interest was devised 
 to the latter in common, with the power, nevertheless, in the executor to 
 sell and dispose of the same. Held a sufficient statement of the respec- 
 tive interests of complainants; they asking no partition as between 
 themselves. Page v. Webster, 8 Mich., 263. 
 
 1299. Partition will be decreed according to the equitable rights of 
 parties. But to enable the Court to make such decree, their equitable 
 rights should appear from the pleadings. Thayer v. Lane, Wal. Ch., 200. 
 
 1300. Redemption : ivlio may file. Equity will not lend 
 its aid to enable a volunteer to pay off a mortgage on the lands of 
 another, or to subrogate him to the rights of a mortgagee in a mortgage 
 so paid. Smith ■». Austin, 9 Mich., 465. 
 
 1301. Where any other person than the mortgagor files a bill to 
 redeem, the bill must show that complainant has some title or interest 
 in the land derived through the mortgagor, or in some way springing 
 out of his general equity of redemption. And it must show the nature 
 or derivation of the title or interest so claimed. Ibid. 
 
 1302. Where such a bill only stated that complainant, after the giv- 
 ing of the mortgage, became interested in the land by contract, but 
 without setting out the contract, or stating the parties, or its terms, or 
 the interest contracted, it was held insufficient. Ibid. 
 
 1303. Recitals in exhibits attached to the bill, and which the bill 
 prays may be made a part of the bill with all their averments, which 
 recitals speak of complainant as having " become the purchaser " of the 
 mortgaged premises, cannot aid the bill in this particular ; the recitals 
 not showing from whom the purchase was made, nor the interest pur- 
 chased, nor whether it was subject to the mortgage or not. Ibid. 
 
 1304. One whose sole interest in lands is under a trust deed, by vir- 
 tue of which he is to be entitled to the lands after payment of the mort- 
 gages upon it and certain other specified demands, is not entitled, if he 
 
 167 
 
§ 1813 EQUITY PLEADINGS. 
 
 repudiates the trust, to file a bill to redeem from the mortgages. SmvOi 
 0. Austin, 11 Mich., 34. 
 
 1305. — excusing laches. Bill to redeem from a conveyance 
 claimed to be a mortgage. The bill was not filed until thirty-four years 
 after the maturity of the mortgage, which the bill alleges to have 
 remained unpaid, and twenty-four years after the grantee had sold and 
 conveyed the land. A party seeking to redeem after such a lapse of 
 time, is bound to show affirmatively in his bill such facts as wiU estab- 
 lish the instrument as continuing in force and subject to redemption, 
 Reynolds v. Green, 10 Mich., 355. 
 
 1306. The bill showed that the grantee in the mortgage conveyance, 
 and those claiming under him, had claimed and disposed of the prem- 
 ises as absolute owners for more than twenty years, and that possession 
 had been had under them. It averred that the possession had not been 
 continuous and adverse for twenty years, but did not show that it was 
 taken within that time. No excuse was shown for the delay in apply- 
 ing to redeem, and it was held, that the averments in the bill were too 
 uncertain to found a right to redeem upon. Ibid. 
 
 1307. Vendor's lien. A bill to establish and enforce a vendor's 
 lien upon lands, should set forth the contract of purchase, both as to 
 the consideration and terms of payment ; and the allegations with 
 respect thereto should be clearly proved, in order that the Court may 
 compel the execution of the agreement of the parties, and not one of its 
 own creation. Momrey v. VarUBAmg, 9 Mich., 39. 
 
 1308. A bill which alleges a sale at a certain price, but does not 
 state the mode of payment agreed upon, is not supported by evidence 
 that the unpaid purchase price was to be paid in work. IIM. 
 
 1309. multifariousness. See a discussion of the general ques- 
 tion of multifariousness in "Wales v. Newboidd, 9 Mich., 45. And see 
 Wheder v. Clinton Oanal Bank, Har. Ch., 449; IngeraoU v. Kirby, Wal. 
 Ch., 65 ; Page v. Webster, 8 Mich., 263 ; Munton v. Piatt, 11 Mich., 364. 
 
 1310. Several different things, having no connection with each 
 other, and requiring different decrees, cannot be demanded of several 
 defendants by one bill. Ingersoll v. Kirby, Wal. Ch., 65 ; Hart v. 
 McKeen, Wal. Ch., 417. 
 
 1311. But different causes of complaint of the same nature, and 
 between the same parties, may be united in one suit where the same 
 relief is asked. Ha/rt v. McKeen, Wal. Ch., 417. 
 
 1312. — lioiv determined. To determine whether a bill is mul- 
 tifarious, we must look to the stating part rather than to the prayer; 
 for if the complainant asks for several things, to some of which his case 
 would entitle him and others not, he may have at the hearing that 
 168 
 
EQUITY PLEADINGS. § 1320 
 
 relief which is consistent with the case stated. Eammcmd v. Michigan 
 State Bank, Wal. Ch., 314. 
 
 1313. — objection at the hearing. The objection made for the 
 first time at the hearing will not be allowed where the Court can make 
 a decree which will do entire justice between the parties. Beed v. Wes- 
 ad, 7 Mich., 139. 
 
 1314. One of two complainants sought to have certain judgments 
 against him decreed satisfied, and the other to have sales made under 
 the judgments declared fraudulent and void, and the relief sought by 
 each depended upon the same state of facts, and the decree, if relief was 
 due to either, would dispose of the whole equities without confusion. 
 Objection to the misjoinder not being taken until the hearing, the bill 
 was sustained. IHd. 
 
 1313. Bill must be consi§tent. A bill with a double aspect 
 must be consistent with itself It should not set up different and dis- 
 tinct causes of complaint that destroy each other. Hart v. McKeen, Wal. 
 Ch., 417. 
 
 1316. Cross bill : when necessary. A cross bill is necessary 
 where the defendant is entitled to some positive relief, beyond what the 
 complainant's bill would afford liim. On a bill to redeem, a decree can- 
 not be entered that a sale of the premises be had in case they should 
 not be redeemed, unless a cross bill has been filed for that purpose. 
 Sehwarz v. Sears, "Wal. Ch., 170. 
 
 1317. It is designed for the purpose of enabling a defendant to avail 
 himself of some defense which can only be made complete by granting 
 him some relief against complainant, or against some other defendant. 
 Andrews v. Kibbee, 12 Mich., 94. 
 
 1318. Bill to foreclose a mortgage. A subsequent incumbrancer 
 may take the objection by answer that the mortgage is of a home- 
 stead, and invalid for want of the wife's signature. A cross bill is 
 not necessary for the purpose. Bye v. Mann, 10 Mich., 291. 
 
 1319. The defendant conveyed certain premises without his wife's 
 signature. A judgment creditor of the defendant levied upon the pre- 
 mises, and filed a bill in aid of his execution. It was contended by de- 
 fendant that, as his wife did not join in his conveyance, it was void 
 under the Homestead Law of 1848, and that she was entitled to be pro- 
 tected in the enjoyment of forty acres under that law. Held, that the 
 claim could not be adjudicated in that suit, but she must bring it before 
 the Court by cross bill. Wisner v. Faniham, 2 Mich., 472. 
 
 1320. A portion of the land covered by a mortgage having been 
 conveyed subject to the payment of the entire mortgage by the grantee, 
 the purchaser of another parcel is not obliged to file a cross bill in the 
 foreclosure suit to protect his rights, but may set out the facts in his 
 
 169 
 
§ 1328 EQUITY PLEADINGS. 
 
 answer, and the Court, where it can be done without prejudice to the 
 complainant, should make decree protecting his priority. Garuthers x. 
 HaU, 10 Mich., 40. 
 
 1321. — what to embrace. It must be strictly confined to the 
 matters involved in the original cause. Where a bill introduces other 
 distinct matters, it is an original bill, and the suits are separate and 
 distinct. Andrews v. Kibbee, 13 Mich., 94. 
 
 1322. Creditor's bill, to enforce the payment of a judgment, mak- 
 ing one a defendant who was alleged to be indebted to, and also the 
 fraudulent grantee of, the judgment debtor. This defendant afterwards 
 filed his bill against the complainant, claiming to have become the 
 owner of the debt for which the judgment was rendered, and of a col- 
 lateral mortgage given to secure it, and praying to have his title to 
 these securities established. The judgment debtor — who was the mort- 
 gagor in the collateral mortgage — and the holder of a prior mortgage, 
 were also made parties, and the bill prayed leave to redeem from the 
 prior mortgage, and the foreclosure of the other. Held that this was an 
 original, and not a cross bill. Ibid. 
 
 3. Pleas. 
 
 1323. A. plea must rest the defense upon a single point. If it con- 
 tains two distinct points, it is bad. Albany City Sank v. Dorr, Wal. 
 Ch., 317 ; CarroU v. Potter, Wal. Ch., 355. 
 
 1324. Of former suit pending. A plea of a former suit 
 pending in another Court for the same cause of action, must set forth 
 the general character and objects of the former suit, and the relief asked. 
 Bank of Michigan v. WUliomia, Har. Ch., 319. 
 
 1325. Of account stated. A plea of an account stated must 
 aver that the settlement was of all dealings between the parties ; that 
 the accounts were just, fair and due ; and these averments must be sup- 
 ported by an answer to the same effect. Sehwarz v. Wendell, Har. Ch., 
 395. 
 
 1326. Of release. A plea of a release, unsupported by an 
 answer, is insufficient. Ibid. 
 
 1327. Of bona llde purchase. A plea of a bona fide pur- 
 chase without notice must aver not only a want of notice at the time 
 of the purchase, but also at the time of its completion, and the payment 
 of the money. The money must have been actually paid, or the defen- 
 dant become so bound therefor that the Court could not relieve him 
 from the payment of it. Thomas v. Stone, Wal. Ch., 117. 
 
 132S. A plea that one is the bona fide purchaser and owner of an 
 absolute title to lands, is not sustained by evidence that he is owner of 
 a mortgage interest only. Mmeraon v. Atwater, 7 Mich., 13. 
 170 
 
EQUITY PLEADINGS. § 1338 
 
 1329. Of ft-aud. Where fraud is alleged in defense of a bill, and 
 it consists of a variety of circumstances, it should be taken advantage 
 of by answer, and not by plea. CarroU v. Potter, Wal. Ch., 355. 
 
 1330. How facts to be stated. A plea must be positive, and 
 not on belief, when it states a fact within defendant's knowledge, or 
 touching his own acts ; but when it relates to the acts of third per- 
 sons, and not to defendant's own" acts, it may be on information and 
 belief. Parker v. Parker, Wal. Ch., 457. 
 
 1331. In a plea that one of the defendants is a married woman, and 
 her husband not a party to the suit, it was held not necessary to show 
 by the plea that she could not sue and be sued as an unmarried woman 
 under the statute, where the bill did not make out a case bringing her 
 within the statute. JJid!. 
 
 1333. To part of bill. A defendant may plead to one part of a 
 bill and answer to another ; but the defenses must clearly refer to 
 separate and distinct parts. If both are to the same part, the answer 
 overrules the plea. Glark v. Saginomo City Bank, Har. Ch., 240. 
 
 1333. CompIaiii,ant'8 interest assigned. A ptea that com- 
 plainant has parted with his interest in the suit, presents a good de- 
 fense. WaBa/x B. Dunning, Wal. Ch., 416. See Webster v. Hitchcock, 11 
 Mich., 56. 
 
 1334. Issue upon. Where replication to a plea is filed, the truth 
 of the plea is the only question to be tried ; and if established, it is a 
 bar to so much of the bill as it professes to cover. Surlbut v. Britain, 
 Wal. Ch., 454. 
 
 1335. But if found not to be true, complainant will be entitled only 
 to the same decree as if the bill had been taken as confessed ; and if the 
 allegations of the bill do not entitle him to any relief whatever, the bill 
 wiU be dismissed. Hwrlhut v. Britain, 2 Doug., 191. 
 
 3. Answer. 
 
 1336. Certainty in. Where an allegation is made in the biU 
 with divers circumstances, the defendant should not in his answer deny 
 the allegation literally, as laid in the bill, but should answer the point of 
 substance positively and with certainty. Jones v. Wing, Har. Ch., 301. 
 
 1337. Where the answer admitted a deed referred to in the bill, and 
 stated no fact which invalidated it, but denied its validity generally, it 
 was held to be insufficient, because not stating the facts which made the 
 deed invalid. As a question of law a party is estopped by his deed ; and 
 if he attempts to impeach it in equity, he must show in what his equity 
 consists. Payne «. Atterbwry, Har. Ch., 414. 
 
 1338. must be full. If a defendant submits to answer the whole 
 bill, he must answer fully, notwithstanding he might by demurrer or 
 
 171 
 
§ 1348 EQUITY PLEADINGS. 
 
 plea to the whole bill have protected himself against a particular dis- 
 covery. OHkey v. Paige, Wal. Oh., 520. 
 
 1339. Where irrelevancy is made a ground for refusing to answer a 
 part, it must appear that an answer to such part would, in no aspect of 
 complainant's case as made by the bill, be of service to him. Ibid. 
 
 1340. nust toe signed. An answer must be signed, notwith- 
 standing complainant has, by his bill, waived an answer under oath. 
 Kimball v. Ward, Wal. Ch., 439. 
 
 1341. must state facts. An answer should show facts, and not 
 conclusions of law. Attorney- General «. Oakland County Bank, Wal. 
 Ch., 90. 
 
 1342. Denials not conclusive on Court. The denial of 
 fraud in an answer under oath, is not conclusive on the Court, if the 
 facts and circumstances of the case are such as irresistably to lead the 
 mind to a difterent conclusion. How v. Camp, Wal. Ch., 437. 
 
 1343. How far evidence. When an answer is called for on 
 oath, whatever is responsive to the bill is evidence for as well as against 
 defendant. Bchwarz v. Wendell, Wal. Ch., 367. But new matter brought 
 into the case by the answer is not evidence for defendant. Ibid ; At- 
 torney-General V. Oakland County Bank, Wal. Ch., 90; Van Dyke v. 
 Davis, 3 Mich., 144 ; Hunt v: Thorn, 2 Mich., 213. 
 
 1344. If a fact stated in the bill, and answered by defendant, is ma- 
 terial to complainant's case, or is a circumstance from which a material 
 fact may be inferred, the answer, in such case, is responsive to the bill, 
 and is evidence in the cause. 8chwa/n v. Wendell, Wal. Ch., 367. 
 
 1345. An answer may sometimes be evidence of a fact not stated in 
 the bill ; as where the bill sets forth part of complainant's case only, in- 
 stead of the whole, and the part omitted, and stated in the answer, 
 shows a different case from that stated in the biU, and is not in avoid- 
 ance merely. Ibid. 
 
 1346. Where complainant alleged in his bill a right to certain shares 
 of partnership property, and defendant denied the right, and set up an 
 independent contract to show himself entitled to one half the shares, 
 the answer was held not to come within the rule of being directly re- 
 sponsive to the allegations of the bill, and the new contract was re- 
 quired to be proved. Millard «. BamsdeU, Har. Ch., 373. 
 
 1347. Where the answer is called for on oath, and the defendant of 
 his own knowledge fully and fairly negatives any allegation of the biU, 
 complainant can have no relief depending upon that allegation, unless 
 the answer is overcome by more than the equally full testimony of one 
 witness. Boherts v. Miles, 13 Midi., 397. 
 
 134S. But this rule amounts simply to this : that there can be no de- 
 cree in favor of complainant unless the evidence preponderates in his 
 172 
 
EQUITY PLEADINGS. § 1337 
 
 favor J and that where answer and opposing witness are equally fair 
 and explicit, there can be no such preponderance. lUd. 
 
 1349. Defendant orally examined. If defendant, after 
 having thus answered, is called upon the stand as a witness under the 
 statute — Laws of 1861, p. 168 — and furnishes the means of destroying 
 his own answer, and corroborating complainant's case, his testimony 
 on the oral examination and cross-examination is preferable to his ans- 
 wer. lUd. 
 
 1350. Since said statute the defendant's answer on oath, responsive to 
 the bill, is to be regarded as of the same force only which it would have 
 were it the defendant's deposition as a witness. lUd. 
 
 1351. Answer eonclusivc on defendant. By his answer 
 defendant had alleged the consideration of a certain deed (decreed by 
 the Court to be a mortgage) to have been a debt to a certain amount. 
 The answer estops him from showing that a larger sum was due. Emer- 
 son V. Atwater, 12 Mich., 314. 
 
 1352. If the amount of the indebtedness was incorrectly stated in 
 the answer by mistake, defendant should have applied to the Court, 
 showing how it occurred, and asking leave to amend the answer in that 
 particular. IMd. 
 
 1353. Conclusive on privies. Bill to redeem. The present 
 holder of the mortgage security was undefended in the case except by 
 the answer of the mortgagee from whom he derived his right. Held 
 that he was entitled to the benefits of that answer, but was also con- 
 cluded by its statements. Ibid. 
 
 1354. Ans^vernot on oatb. Where answer on oath is waived, 
 complainant may use the answer as an admission by defendant of any 
 facts stated in it necessary to establish his case. But he cannot use one 
 part and exclude other parts relating to the same subject that would be 
 responsive to the bill had the answer been under oath. Durfee v. Mc- 
 Glurg, 6 Mich., 223. 
 
 1355. The answer without oath is a mere pleading, and of no effect 
 as evidence. So far as it admits the case made by the bill, it re- 
 lieves the complainant from proof. So far as it controverts that case, 
 it puts the complainant to his proof But so far as it alleges any new 
 matter of avoidance, or any matter the burden of proving which would 
 naturally rest upon the defendant, it is of no effect without proof. Mor- 
 ris V. Soyt, 11 Mich., 9. 
 
 1356. As to what is responsive to the bill, see MandeoiUe v. Comstock, 
 9 Mich., 536. That nothing is to be regarded as admitted by it unless 
 expressly admitted, see Morris v. Morris, 5 Mich., 171. 
 
 1357. Multiplicity of issues. Three persons who had held 
 land in partnership sold it, and gave separate conveyances to the pur- 
 
 173 
 
§ 1365 EQUITY PLEADINGS. 
 
 ■ > 
 
 chaser, who, in pursuance of an arrangement to that effect, gave back a 
 mortgage for the purchase price to one of them. The purchaser after- 
 wards bought up a mortgage given by one of them, on an undivided one 
 third of the land, and sought to make a set off of this in a suit to fore- 
 close his own mortgage. But the set off was refused, the Court holding 
 that claims under that mortgage could be better litigated in a separate 
 suit ; and the decree was so framed as to leave that mortgage un- 
 touched. Adams v. Bradley, 13 Mich., 346. 
 
 4. Dbmukrebs. 
 
 1358. A general demurrer for want of equity cannot be sus- 
 tained unless the Court is satisfied that no discovery or proof pro- 
 perly called for by, or founded upon, the allegations in the bill can make\ 
 the subject matter of the bill a proper case for equitable cognizance. 
 Clark V. Dam, Har. Ch., 227. See Thayer v. Lane, Har. Ch., 247. 
 
 1359. It must be good to the whole bill, or it will be overruled. 
 WHliamsv. Subbard, Wal. Ch., 38. 
 
 1360. If a defendant who should have demurred to discoveiy 
 only, demurs to both discovery and relief, the demurrer will be over- 
 ruled. Edwards D. Htdbert, Wal. Ch., 54 ; Burpee v. Smith, Wal. Ch., 
 327. 
 
 1361. Where the discovery sought by a bill can only be assistant to 
 the relief prayed, a ground of demurrer to the relief wiU also extend to 
 the discovery ; but if the discovery have a further purpose, the com- 
 plainant may be entitled to it though he has no title to the relief Marir- 
 ning v. Drake, 1 Mich., 34. 
 
 1362. Ore tenus. Where a new cause of demurrer is assigned 
 are tenus, the cause must be co-extensive with the demurrer. Clmrk t. 
 Da/Bis, Har. Ch., 227. 
 
 1363. By one defendant. Where one of several defendants 
 demurs to discovery, on the ground that it would subject him to a crim- 
 inal prosecution, his demurrer should be confined to such parts of the 
 bill as tend to implicate him in the supposed crime. Burpee v. Smith, 
 WaL Ch., 327. 
 
 1364. A joint demurrer may be good as to one defendant and bad as 
 to other defendants. Barstow t. Smith, Wal. Ch., 394. 
 
 1365. It is a good ground of demurrer to the whole bill that one of 
 the complainants has no interest in the suit, and has improperly joined 
 with others in filing the bill ; but there is no such rule in regard to de- 
 fendants. Ibid, 
 
 174 
 
EQUITY PRACTICE. , § 1375 
 
 EQUITY PRACTICE. 
 1. The Bill. 
 
 1366. A married woman filed in her own name, without the 
 appointment of prochien ami, a bill against her husband for alimony. 
 Held irregular. Pdtier v. Pdtwr, Har. Ch., 19. 
 
 1367. The appointment of next friend is sufficient, if made in writ- 
 ing by the complainant, accompanied by the written consent of the 
 next friend, and the appointment and consent annexed to the bill. 
 Ma/rhha/m i>. Mmrkham, 4 Mich., 305. 
 
 136S. But in respect to her separate property, she may sue in her 
 own name. And by statute — Comp. L., §§ 3390, 3394 — she may sue in 
 respect to her own property, at law as well as in equity, without next 
 friend. lUd,. And see Husband and Wipe. 
 
 1369. Oath to bill. Where a creditor's bill is verified under 
 rule 110 of 1839 (103 of 1858) by complainant's agent, who is not also 
 his solicitor, the jurat should state the person to be the complainant's 
 agent; but where it is verified by the oath of the solicitor, the Court will 
 take notice of that fact from the records and proceedings in the cause. 
 Berghv. Poupwrd, Wal. Ch., 5. 
 
 1370. Amendments. It is not a matter of course to allow the 
 filing of an amended bill after replication and testimony. A special ap- 
 plication should be made to the Court, with a fuU statement of the facts 
 intended to be incorporated in the amended bill, so that the Court can 
 judge of their materiality. Hammond ». Place, Har. Ch., 438. 
 
 1371. Facts which have transpired subsequent to the filing of the 
 bill cannot be set forth by way of amendment. Ibid. 
 
 1372. Leave was granted to amend an injunction bill so as to waive 
 answer under oath ; an answer not having been filed. Bronson o. Oreen, 
 Wal. Ch., 486. 
 
 1373.— ^when to toe applied for. A complainant wishing to 
 amend his bill must take the first opportunity, after being made ac- 
 quainted with the defects in it, to ask leave to do so. Bank of Michigan 
 V. NUes, Wal. Ch., 398. 
 
 1374. — after demurrer. It is usual on allowing a demurrer for 
 any cause which the Court sees may be obviated by amendment, to give 
 leave to amend on paying costs of the demurrer. But where the Court 
 cannot see on the argument from the facts before it, how the objection 
 on which the demurrer was sustained could be remeved, it is necessary 
 for the complainant to apply for leave to amend, by petition setting 
 forth the additional facts sought to be incorporated in the bill. Ibid. 
 
 1375.— at the hearing. Where the complainant has stated his 
 case defectively, and no demurrer has been interposed, but defendant 
 
 175 
 
§ 1383 EQUITY PRACTICE. 
 
 has only claimed the benefit of a demurrer by his answer, and the case 
 is brought to a hearing on pleadings and proofs, it may be proper to 
 allow the defect in the bill to be corrected at the hearing, if the proofs 
 show complainant entitled to relief. Gorhwm ®. Wing, 10 Mich., 486. 
 
 1376. — after appeal. The Supreme Court has no original equity 
 jurisdiction, and cannot act upon any facts which do not constitute a 
 part of the case appealed from; and leave to amend can only be granted 
 by the Court where the cause orginated. Bank of Michigan v. Niles, 
 Wal. Ch., 398. See Sears v. 8cJiwa/rz, 1 Doug., 504 ; Palmer v. Rich, 12 
 Mich.; 414. 
 
 1377. Where petition was presented for leave to amend, by insert- 
 ing additional facts, after a decree sustaining a demurrer to the bill 
 had been affirmed by the Supreme Court on the same reasons which 
 had governed in chancery, leave was refused. Bank of Michigan b. 
 Niles, Wal. Ch., 398. 
 
 137S. An administrator having filed a bill to compel the specific per- 
 formance of a contract for the conveyance of land to his intestate, with- 
 out making the heirs parties, with prayer that a conveyance be decreed 
 to himself, the Court would not allow the bill to be amended at the 
 hearing on appeal, by substituting the heirs as complainants. Hotise v. 
 Dexter, 9 Mich., 346. 
 
 1379. An objection for the want of a necessary party in chancery 
 was not made until the hearing. The bill made out a case on all other 
 points, and the Court granted decree for complainant, as prayed. On 
 appeal, the Supreme Court, in reversing the decree for want of parties, 
 granted leave to amend, and allowed an injunction, which had been de- 
 creed below, to stand until the further order of the Court below to 
 which the cause was remitted. Palmer v. Rich, 13 Mich., 414. 
 
 1380. Where complainant had stated a case not entitling him to re- 
 lief, bufr on cross bill an issue had been made which allowed the whole 
 equities of the parties to be shown, and it appeared from the evidence 
 that the complainant should have relief, the Supreme Court on appeal, 
 instead of dismissing the bill, ordered the case remanded, with leave to 
 complainant to amend without prejudice to the proofs taken. Moran i\ 
 Palmer, 13 Mich., 367. 
 
 3. Supplemental Bill. 
 
 13§1. Is necessary to bring before the Court facts which have 
 transpired subsequent to the filing of the original bill. Hamrtumd x. 
 Place, Har. Ch., 438 ; Graeea v. Niles, Har. Ch., 333. 
 
 13S2. If material facts have occurred subsequent to the commence- 
 ment of the suit, the Court will give leave to file a supplemental bill ; 
 and in doing so, will permit other matters to be introduced which might 
 176 
 
EQUITY PRACTICE. § 1391 
 
 have been incorporated into the original bill by way of amendment. 
 This is especially proper where the matter which occurred prior, is ne- 
 cessary to the proper elucidation of that which occurred subsequent to 
 the filing of the original bill. Graves v. Niks, Har. Ch., 333. 
 
 13§3. Change of title. The purchaser of land at a foreclosure 
 aale may file a bill to compel the foreclosure of a prior mortgage upon 
 that and other property, and to have the other property first sold ; and 
 if, pending the suit, the prior mortgagee purchases the interest of the 
 complainant, he may file an original bill, in the nature of a supplemental 
 bill, setting up the change of title, and is entitled to the same relief that 
 could have been had under the original bUl. Cooper v. BigUy, 13 Mich., 463. 
 
 13S4. Where the parties in interest to a decree remain unchanged, 
 and no new rights have arisen, a defendant interested in having the de- 
 cree executed should proceed by petition. But where a third person has 
 acquired an interest in the decree, a bill is necessary to bring him before 
 the Court. Griggs v Detroit and Milwaukee Railway Co., 10 Mich., 117. 
 
 13§5. A defendant in a foreclosure decree who hatl a residuary in- 
 terest in the mortgage foreclosed, after complainant's demand should be 
 satisfied, filed a bill the object of which was to have the benefit of that 
 decree, and also to foreclose the mortgage against the defendants who 
 were not, but should have been, parties to the first suit. Such a bill is 
 not objectionable. It is an original bill aa to those who were iu)t parties 
 to the first bill, and a supplemental bill as to those who were. Ihid. 
 
 13§6. Revivor. Where a complainant in chancery dies, the suit 
 is revived by an order substituting his representative as complainant, 
 without amendment of the bill. Webster v. Hitchcock, 11 Mich., 56. 
 
 I3S7. Where the subject matter of a suit In chancery is assigned by 
 the complainant, the suit can no longer be prosecuted in his name after 
 the assignment is brought to the notice of the Court; and the only mode 
 in which the assignee can revive, or get the benefit of the original suit, 
 is by filing an original bill in the nature of a bill of revivor and supple- 
 ment. A bill may be filed by the assignee for this purpose, without the 
 previous leave of the Court, and in the name of a new solicitor. lUd. 
 
 3. Subpoena. 
 
 138S. A subpoena is the first process. It is irregular to have injunc- 
 tion and ne exeat issued and served before the issue of subpoena. Pd- 
 tier v. Peltier, Har. Ch., 19. 
 
 13S9. Service. The service of a subpoena out of the State is irre- 
 gular. Pratt V. Bank of Windsor, Har. Ch., 254. 
 
 1390. Where defendant was confined in State prison, service upon the 
 keeper of the prison was held sufficient. Johnson v. Johnson, Wal. Ch., 309. 
 
 1391. Error in copy. Where the copy served differed from the 
 13 177 
 
§ 1399 EQUITY PRACTICE. 
 
 original, in being tested October 31, 1840, instead of 1843, tlie service 
 was set aside as irregular, Gould v. Tp-on, Wal. Ch., 339. 
 
 4. Anbweb. 
 
 1392. Amending'. Where leave is given to amend an answer, a 
 new answer, witli the amendments added, must be filed and served, or 
 the original answer withdrawn by leave of the Court, and the amend- 
 ments added ; or the amendments must refer to the portions of the ans- 
 wer on file intended to be amended, and specify their nature and appli- 
 cation. Mason v. Detroit City Bank, Har. Ch., 222. 
 
 1393. Amendments in the form of affidavits, not referring to the 
 answer, are irregular. Ibid. 
 
 1394. I^eave to amend. Leave to file a supplemental oramend- 
 ed answer is seldom granted, and never without the utmost caution, and 
 when a just and necessary case is clearly made out ; and it is then gene- 
 rally confined to a clear case of mistake as to matter of fact, and as to 
 that only. Graves «. NUes, Har. Ch., 332. See Emerson v. Atwater, 12 
 Mich., 314. Effect of laches upon the application. Graves v. Jfiles,Ila,i. 
 Ch., 333. 
 
 1395. Leave should not be granted to change entirely the character 
 of the defense by supplemental or amended answer, not upon the ground 
 of any actual toistake in matter of fact, or upon any discovery of new 
 facts, but -upon the ground that the defendant did not mean to be under- 
 stood as he had stated in his answer. Ibid. 
 
 1396. But where the answer was obscure, and there was a possi- 
 bility of great injustice to defendant, the Court, with reluctance, per- 
 mitted a supplemental answer to be filed explaining the ambiguity. But 
 defendant having incorporated other matters of defense in his supple- 
 mental answer, without leave, it was ordered to be taken oflf the files. 
 Ibid. 
 
 1397. Defense of one protecting another. Bill to remove 
 a cloud upon complainants' title. As under the statute, in order to ob- 
 tain the decree they sought, the complainants were required to substan- 
 tiate their own title, it was held that the defense of one enured for|the 
 benefit of all. Stockton b. WUliama, Wal. Ch., 120. 
 
 139§. Bill against the grantee named in a deed of lands, and pur- 
 chasers under him, to set aside the deed for fraud. 'The grantee ans- 
 wered fully, denying the fraud ; and as to the others the bill was taken 
 as confessed. It was held that the defense of the grantee enured to the 
 benefit of the others ; and the bill being dismissed as to him was dis- 
 missed as to all. Buchoz v. Lecour, 9 Mich., 234. See also Emerson v. 
 Atwater, 13 Mich., 814. 
 
 1399. Exception to. Where defendant both answers and de- 
 178 
 
EQUITY PRACTICE. § 1407 
 
 murs to different parts of the bUl, and the demurrer is overruled, com- 
 plainant, to obtain a further answer, must except. Bragg v. Whiicomb, 
 Wal. Oh., 307. 
 
 5. Plea, 
 
 1400. When superseded. A plea is superseded by amending 
 the bill ; and the defendant should plead, answer or demur to the 
 amended bill as if no plea had been interposed before. Peck u. Burgess, 
 Wal. Ch., 485. 
 
 1401. Amending. Amendments proposed to a plea 'should be 
 stated in the application for leave ; and a defendant will not usually be 
 permitted to set up a fact or state of facts inconsistent with the original 
 defense. Freeman v. Mieldgan State Bank, Har. Ch., 311. 
 
 1402. Motion for leave to amend, based upon an affidavit -stating an 
 additional fact which was unknown to defendant at the time of filing 
 the original plea, and consistent with the facts pleaded. Leave was 
 granted, but fixing a short time for making the amendments in. Ilid. 
 
 6. Demueeek. 
 
 1403. Signed by tirrong solieitor. Where a solicitor has ap- 
 peared in a cause, and a demurrer is filed by other solicitors, it may be 
 treated as a nullity. But where it appeared that the Mgnature nf the 
 wrong solicitor was put to the demurrer by mistake, and that injustice 
 would be done if the defendant should not be allowed to answer, a default 
 for want of answer was set aside on terms. Ordham v.Elmore, Har. Cli., 265. 
 
 7. Injunction, 
 
 1404. To stay suit in equity. Application by a party or privy 
 to stay a proceeding in chancery, must be made to the Court itselli by 
 petition in that proceeding. An officer out of Court has no authority to 
 allow an injunction for that purpose. But where the case was such 
 that an order would have been granted, and the objection was not 
 taken on the argument, the injunction was allowed to stand for such 
 order. Mason v. Payne, WaL Ch., 459. 
 
 1405. Prayer for. Where the bill prays an injunction, l3ut it is 
 omitted in the prayer for process, it is good ground for refusing the in- 
 junction, but not for dissolving it when it has been allowed. Taylor n. 
 Snyder, Wal. Ch., 490. 
 
 1406. Motion for. On the motion for an injunction, the state- 
 ments in the bill must be taken as true, and the relief sought must be 
 consistent with the case made by the bill. Michigan State Bank v. Hast- 
 ings, Wal. Ch., 9. 
 
 1407. Bond. The Court cannot dispense with the filing of a bond 
 as preliminary to the injunction, when it is required by the statute, 
 
 179 
 
f I«8 EQUITY PRACTICE. 
 
 Ca/rroU v. Farmers and Mechanics' Bank, Har. Ch., 197. See further, In- 
 jDNCTioH Bond. 
 
 140§. Dissolution of. See supra 1405. An injunctton will be 
 dissolved on motion, where the equity of the bill is fully denied by plea, 
 Eldred v. Camp, Har. Ch., 163. Or by answer, if the answer is full and 
 satisfactory. Attorney' Generai v. OaUand County Bank, Wal. Ch., 90. 
 And without answer or plea, the defendant may move to dissolve for 
 want of equity in the bUl. Cooperv. Alden, Har. Ch., 72. 
 
 1409. On motion to dissolve, an aflMavit isadmisMble which goes to 
 show that the injunction was irregularly issued, or that the officer grant- 
 ing it was misled, or ^induced to grant it contrary to law. CowrroU «. 
 Farmers and Mechanics' Bank, Har. Ch., 197. 
 
 1410. If complainant fails to appear on motion to dissolve, after due 
 notice, the motion will be granted. Kellogg v. Barnes, Har. Ch., 258. 
 
 1411. If the motion is made before answer, the allegations (tf the bill 
 are to be taken as true. 8chwa/rs v. Sears, Har. Ch., 440. 
 
 1412. The granting and continuance of injunctions rest in the dis- 
 cretion of the Court ; and they will not always be dissolved when the 
 equity of the biU is fully denied. If by a dissolution the complainant is 
 lilsely to be deprived of all benefits he might otherwise derive by suc- 
 ceeding in the suit, it will not be dissolved as a matter of course, on the 
 coming in of answer denying the equity of the bill. Attorney- Qenerai v. 
 OaMand County Bank, Wal. Ch., 90. 
 
 1413. It will not be dissolved on an answer admitting the equity of 
 the bill, and setting up new matter as a defense. Ibid. 
 
 1414. Affidavits will not, as a general rule, be allowed to be substi- 
 tuted for an answer for the purposes of this motion. Exceptions in case 
 of waste or irreparable mischief and partnership. Socket v. HiU, 2 
 Mich., 183. 
 
 8. Motions, Pktitions, Ordebs, &c. 
 
 1415. Consent rule. A'rule entered by consent, without fraud or 
 misrepresentation, will not be vacated. Sammand v. Piace,Sa,T. Ch., 438. 
 
 1416. Agreements bet\reen counsel must be in writing, or 
 reduced to the form of an order by consent, or the Court will not notice 
 them. [Rule 84.] Brooks v. Mead, Wal. Ch., 389 ; Suydam v. Dequin- 
 dre, Wal. Ch., 28. 
 
 1417. Signing petition. A petition was not signed by the peti- 
 tioner, but was verified by an affidavit signed by her, which stated that 
 she had read it, and knew its contents, and that it was true. Held suffi- 
 cient. Johnson v. Johnson, Wal. Ch., 309. 
 
 1418. Notices. A defendant who has appeared in the cause, is 
 entitled by statute— Comp. L., § 3500— to notice of all subsequent pro- 
 
 180 
 
EQUITY PRACTICE. f 142! 
 
 ceedings. And where the rules fix the period of notice, such notice 
 should in all cases be given. Jenny v. O'Flynn, 5 Mich., 215. 
 
 1419. Decree being made without notice of hearing to a defendant 
 who had appeared, it was reversed on appeal. IWd. 
 
 1420. Where, in a foreclosure case, the bill is taken as confessed by 
 a part of the defendants, the evidence taken on the issue as to the others 
 is evidence as to those who are defaulted , and a reference to take sepa- 
 rate proofs as to them, covering the same ground, is not necessary. If 
 ifiuch reference is had, notice of it to the defendants who have appeared 
 is not requisite. Michigan Insurance Co. v. Whittemore, 12 Mich., 427. 
 
 1421. And notice is not necessary of a reference to compute the 
 amount due on A basis already fixed by the Court, by [interlocutory de- 
 cree. Kellogg V. Putnam, 11 Mich., 344. 
 
 1422. Deposit In Court. Where a party comes to have a fore- 
 closure set aside, and for leave to redeem, he must bring into Court the 
 amount admitted to be due. The deposit will only be dispensed with where 
 there is uncertainty as to the amount. Schwa/rz v. Sears, Har. Ch., 440. 
 
 1423. Receiver : of moneyed corporation. After in- 
 janction and the appointment of a receiver in a suit against a moneyed 
 corporation, and the receiver has taken upon himself the trust, and 
 other creditors have filed their daims, it is not a matter of right for the 
 complainant, on being paid his claim, to dismiss the suit and discharge 
 the receiver. Fag v. Erie and Kalamazoo B. B. Bank, Har. Ch., 194. 
 
 1424. The Court has power to permit it, when satisfied that the in- 
 terest of all concerned will be best subserved by permitting the corpora- 
 tion to manage its own concerns. But the Court should look into the 
 condition of the corporation, before discharging the receiver, and make 
 such order, absolute or conditional, as the case may require. Ibid. 
 
 1425. — ^In mortgage cases. Before appointing a receiver in a 
 foreclosure suit, the Court must be satisfied, first, that the premises are 
 insuflicientto pay the debt, and second, that the party personally liable 
 is insolvent, so that an execution for any deficiency on a sale would be 
 unavailing. And the application therefor must be made in a reasonable 
 time after the suit is commenced. Brown v. Oha^e, Wal. Ch., 43. 
 
 1426.— against vendee In possession. Where a vendee is 
 in possession, holding over against his own deed, and is irresponsible, 
 and there are large outstanding incumbrances which he is not keeping 
 down the interest upon, a receiver will be appointed. And although 
 answer is filed putting material parts of the bill in issue, yet if there 
 still remains a strong presumption against the defendant from the ans- 
 wer itself, a receiver will be appointed. Payne v. Atterhury, Har. Ch., 414. 
 
 1427.— In creditors'* suit. Notice of motion for a receiver haxv- 
 ing been given, and the defendant failing to appear, the fact that a de- 
 
 181 
 
§ 1438 EQUITY PRACTICE. 
 
 murrer has been interposed will not be regarded a sufflcient reason for 
 denying the motion. Moward, v. PrfBwr.Wal. Ch., 391. 
 
 142S. — motion for. Affidavits are not admissible to contradict 
 the answer, on motion for a receiver. Connor v. AUen, Har. Ch.^ 371. 
 
 1429. Reneiral of motions. After a motion hais been denied 
 on its merits, it sbo-uld not be renewed, without leave of the Court, on 
 the same facts, or on any new facta which might have been included in 
 the first motion. The party must present all of his case at once, whether 
 he have several grounds or not. JoTinaon v. Johnson, Wal. Ch., 309, 
 
 1430. Serviee of papers on motions. On making a motion 
 based upon the fact that a writ of error has been sued out of the Su- 
 preme Court, it is not necessary to serve a copy of the proceedings 
 inthat,Court. Webb v. Williams, Wal. Ch., 453. 
 
 1431. Irregularity: laches. A motion to set aside proceed- 
 ings for irregularity should be made at the first opportunity. Johnson v. 
 Johnson, Wal. Ch., 309. And a defendant who has failed to appear is 
 entitled to no more indulgence than one who has. Ibid. 
 
 1432. — waiver. Where complainant had failed to serve his repli- 
 cation on a defendant, but the latter attended and cross examined wit- 
 nessesv this was tueld to. be a waiver. Broolcs v. Mead, Wal. Ch., 389. 
 
 1433. So where complainant had failed to serve a copy of the bill, 
 but defendant had answered, and made a motion to dissolve an injunc- 
 tion, he was held to have waived the default. Higgins v. Carpenter, 
 Har. Ch., 356. 
 
 1434. — a defendant in contempt cannot move to set aside 
 proceedings ;but where he has simply failed to comply with the require- 
 ments of an interlocutory order, he may move to discharge the order 
 for irregularity. Peltier v. Peltier, Har. Ch., 19. 
 
 1435. Order in part erroneous not void, so far as relates to 
 matters properly contained in it. Howard v. Palmer, Wal. Ch., 391. 
 
 1436. Setting aside default. A regular order to take the bill 
 as confessed will not be set aside on a simple affidavit of merits, notwith- 
 standing an excuse is shown for the default. The defendant must either 
 produce the sworn answer he proposes to put in, or must in his petition 
 or affidavit, show the nature of the defense, and his belief in the truth 
 of the matters constituting it. Stockton «. WHMams, Har. Ch., 341. 
 
 1437. The general rule is, that when the answer shows a defense, 
 and an excuse is given for the delay, the Court wiU open the default, 
 and allow the answer to be filed, on terms. Smitht>. Saginaw City Bank, 
 Har. Ch., 436. 
 
 143S. Extending time to take testimony. Where a party 
 applies for leave to take testimony after the time allowed by the rules 
 has expired, he must state in his application what he expects to be able 
 183 
 
EQUITY PRACTICE. § 1450 
 
 to prove by the witnesses he seeks leave to examine. Thayer v. Sunft, 
 Wal. Oh., 384. 
 
 1439. A complainant seeking to set aside the rules of the Court, will 
 be required to make as strong a case as a defendant to set aside a de- 
 fault. Ibid. 
 
 1440. Where complainant had allowed the time given by the rules 
 for taking testimony to expire, without showing any excuse for neglect, 
 except that his counsel were occupied with other business, the motion 
 was denied. IMd. 
 
 1441. Affidavit ofmcrits must state what the merits are. lUd. 
 And must be made by the party himself^ or a reason shown why it is not. 
 Bank of Michigan V. Williams, Har. Ch., 319. 
 
 9. The Master ; Proceedings before nm, and his Rbpoet. 
 
 1442. Solicitor. It is improper for a master to perform any offi- 
 cial act as master in a cause in which he is solicitor, or partner of the 
 solicitor. Brown r>. Byrtie, Wal. Ch., 453. 
 
 1443. Sniumon§. The time fixed for service of the summons 
 should be stated in the summons itself, or form a part of the underwrit- 
 ing, where the latter is necessary to inform the party of the object of 
 the hearing ; and the underwriting, as well as the summons, should be 
 signed by the master. Whipple v. Stewart, Wal. Ch., 357. 
 
 1444. Appearing before the master to object that no time was fixed 
 for the service, is not a waiver of the irregularity. Fbid. 
 
 1445. It is not necessary to serve with the summons a copy of the 
 order under which the reference is had. lUd. 
 
 1446. Service of a copy of the summons, without showing the origi- 
 nal, is void. Howard v. Paimer, WaL Ch., 391. 
 
 1447. The return of a master charged with the execution of an order 
 of the Court, showing the failure of a person to appearand submit to an 
 examination as required by the order, is sufficient foundation for a rule 
 to show cause why an attachment should not issue against him for con- 
 tempt. Whipple V. Brown, Har. Ch., 436. 
 
 144S. The return on the summons, or the affidavit of service, should 
 show how it was served. Ibid. 
 
 1449. Where the notice was to appear before one Master, and the 
 return was by another that defendant did not appear, it was held irre- 
 gular. Ibid. 
 
 1450. Proceedings on reference. Where on a reference 
 to a master to ascertain the amount due on a mortgage, the mortgagor 
 appeared, and at the first refused to take part in the proceedings, but 
 after remaining an hour or more, and before the opposite party had left, 
 offered to prove certain payments on the mortgage, and the master re- 
 
 183 
 
§ 1460 EQUITY PRACTICE. 
 
 fu^ed to hear the testimony on the ground that it was too late, the deci- 
 sion was held erroneous. Sehwarz v. Sears, Wal. Ch., 19, 
 
 1451. The proper mode to correct the error is by motion to the Court 
 for an order requiring the master to receive the testimony ; and this 
 should be made immediately, and without waiting for the master to 
 malje his report. Ibid. See also Ward v. Jewett, Wal. Ch., 45. 
 
 1452. The master, in such case, should make out and deliver to the 
 party requiring it a certificate briefly stating the facts, and the reasons 
 for his action ; that the Court may review his decisions with as little de- 
 lay as possible. Bcliwarz v. Bears, Wal. Ch., 19. 
 
 1453. If he errs in not calling parties before him, to produce books, 
 papers, &c„ the proper remedy of the party deeming himself aggrieved, 
 is to apply to the court for an order requiring him to do so. Emerson v. 
 Atwater, 12 Mich., 314. 
 
 1454. If the proceedings before the master have been irregular, his 
 report may be set aside on motion. In such a case an order should be 
 obtained enlarging the time to except until the motion can be heard and 
 decided. Suydam'o.Dequindre,''N3.\.C\x., 23. 
 
 1455. Exceptions to report. If the master decides against 
 allowing a claim, the proper mode of bringing the question before the 
 Court is by exceptions to his report. Hid. 
 
 1456. Exceptions are only proper when the master has come to an 
 erroneous conclusion, of law or fact, on the whole or some part of the 
 evidence before him, touching the matter referred. Schwam v. Sears, 
 Wal. Ch., 19 ; Emerson v. Atwater, 13 Mich., 314, 
 
 1457. An exception that he " has credited to complainant the sum 
 of $9,210 37, for amount defendant has received on sales of lots, and in- 
 terest thereon to May 5, 1860, whereas he should have credited a less 
 sum," is too indefinite and uncertain to admit the raising under it of an 
 objection that the commissioner did not allow to defendant a sum paid 
 to a third person to perfect the title to the mortgaged lands. Emerson 
 V. Atwater, 12 Mich., 314. 
 
 145§. Conflrming report, A special motion to confirm a re- 
 port is not necessary ; but an order nisi should be entered under the rule 
 (82 of old rules, 79 of new). Suydam v. Dequindre, Wal. Ch., 23. 
 
 1459. Examination in creditor's suit. The examination 
 of the defendant under the rule (HI of old rules, 105 of new), is not con- 
 fined to defendant's property or effects, but extends to any matter which 
 he would be required to disclose by answer ; and authorizes the exami- 
 nation of witnesses on any matter charged in the bill, and not admitted 
 by the defendant on his examination. Howard v. Palmer, Wal. Ch., 391 . 
 
 1460. Irregularity in the appointment of a receiver is no ground for 
 the defendant objecting to submit to an examination. Ibid. 
 
 184 
 
EQUITY PRACTICE. § 1469 
 
 1461. Transferring reference. Where one master has com- 
 menced proceedings under an order of reference, he should complete 
 them ; and the party obtaining the order cannot transfer the proceedings 
 to another master to be completed. Bishop v. Williams, Wal. Ch., 423. 
 
 1462. Examination of witnesses. Where au agent of com- 
 plainant — defendant not appearing — examined witnesses and wrote their 
 depositions, and the master was absent from ,the room several times 
 during the examination, the proceedings were held irregular, and the de- 
 positions suppressed. Burtch v. Hogge, Har. Ch., 31. 
 
 1463. Impeachment. The practice on impeachment of witnesses 
 is the same in chancery as at law. Bawyer v. Sawyer, Wal. Ch., 48. See 
 post, 1686 to 1698. 
 
 1464. Re-examination. A witness once exaniined is not to be 
 re-examiiied to the same facts without an order of the Court ; but he may 
 be as to other facts, or new matter arising out of the testimony of other 
 witnesses. Sawyer v. Sawyer, Wal. Ch., 48. 
 
 1465. Irregular depositions. Where an order to talie proofs 
 was duly entered, but notice was not given within the thirty days re- 
 quired by rule (50 of the old rules ; 47 of the new), and the examination 
 of a witness was objected to before the master on that ground, the de- 
 position was suppressed. Baclidor v. Nelson, Wal. Ch., 449. 
 
 1466. Notice being given of the examination of witnesses, and the 
 opposite party having appeared at the time and place appointed, and 
 waited an hour and a half, during which the party giving the notice did 
 not appear, and then left, it was held irregular for the latter to appear 
 and take depositions afterwards. Stockton v WiUiams, Wal. Ch.. 120. 
 
 1467. Disregarding master's report. Foreclosure suit. 
 Answer being filed denying anything due, the case was referred to a 
 commissioner, who reported that nothing was due to complainant when 
 the suit was commenced. This report was not excepted to, and it was 
 held that defendant had a right to rely upon it, and the Court could not 
 inspect the documents which were before the commissioner, or take evi' 
 dence, to test the correctness of the commissioner's conclusion. Thorne 
 V. ffiUiker, 12 Mich., 215. 
 
 10. Proof op the Issue. 
 
 1468. Answer. A complainant in chancery must be prepared to 
 support his own case, and to meet any evidence fairly controverting it. 
 Nothing will be regarded as admitted by the answer unless expressly 
 admitted. Morris v. Morris, 5 Mich., 171. 
 
 1469. But where complainant averred that a mortgage had been as- 
 signed to him, and the answer was silent on the point, and based the de- 
 
 185 
 
§ 1477 EQUITY PRACTICE. 
 
 fense solely on the ground of infancy, and there was no evidence of as- 
 signment except what was contained in the record of a prior cause, 
 which was put in evidence by consent, wherein the former owner of the 
 mortgage had testified that the mortgage was assigned to complainant ; 
 and the objection that the assignment was not proved was taken on ap- 
 peal from a decree in favor of complainant, it was held that complainant 
 was entitled to the most liberal construction of the evidence as to the 
 assignment, and its competency not having been objected to, it was suffi- 
 cient. Toung v. McKee, 13 Mich., 553. 
 
 1470. The defendant can only defend on the grounds set up in his 
 answer. Smith v. Brown, 3 Mich., 161 ; Van Dyke v. Davis, 3 Mich., 144. 
 
 1471. He cannot, by his answer, vary the terms of a written contract. 
 Schwarz v. Wenddl, Wal. Ch., 267. See further, supra, 1343 to 1356. 
 
 1472. Admission by default. If the defendant suffers the 
 bill to be taken as confessed against him, this is an admission of all its 
 material allegations, and he cannot give evidence before the master to 
 disprove them. Ward ». Jewett, Wal. Ch., 45. 
 
 1473. Admisssons as to infants. No decree can be taken 
 against an infant on a biU taken as confessed, or on the answer of his 
 guardian ad litem admitting the facts as stated in the bill. The answer in 
 such case is regarded as a pleading merely, and the complainant must 
 prove his case. Tlmyerv. Lane, Wal. Ch., 200. See CTianMerv. McEin- 
 ney, 6 Mich., 217 ; amith v. Smith, 13 Mich., 358. 
 
 1474. Facts proved, but not put in issue by the pleadings, 
 cannot be regarded at the hearing. Cicotte v. Gagnier, 2 Mich., 381 ; 
 Warner v. Whittaker, 6 Mich., 133 ; Bloomer v. Henderson, 8 Mich., 
 395 ; Barrows v. Baughman, 9 Mich., 213 ; Peckham «. Buffum, 11 Mich., 
 539 ; Dunn v. Dunn, 11 Mich., 284 ; WurcJiererv. Hewett, 10 Mich., 453. 
 
 1473. Court refusing to receive evidence. The cause 
 having gone to trial in open Court on an issue of fact, the Judge 
 refused to receive evidence, and dismissed the bill for want of equity. 
 Held that the dismissal was erroneous. The complainant was entitled 
 of right to put in his evidence, since in no other way could he render 
 his statutory right of appeal effectual. Sewlett ii. Shaw, 9 Mich., 346. 
 
 11. Feigned Issue. 
 
 1476. The verdict of a jury on an issue out of chancery is of no 
 binding force, and a new trial will be ordered on much slighter grounds 
 than in an ordinary action at law. [Campbell, J.] Dunn v. Dunn, 
 11 Mich., 284. 
 
 1477. The Court may entirely disregard the verdict, and render a 
 
 186 
 
EQUITY PRACTICE. § I486 
 
 decree against it, notwithstanding it satisfies tlie Judge who tried the 
 cause. IJrid. 
 
 14T8. An issue awarded at the hearing in chancery, to be tried by- 
 jury, must be confined not only to facts put in issue by the pleadings, 
 but to facts concerning which some testimony has already been intro- 
 duced and read at the hearing. [Campbell, J.] lUd. 
 
 14T9. Where therefore the pleadings put in issue adultery committed 
 by one of the parties in April, May and June, 1858, but no testimony 
 was taken tending to show its commission in April, and at the hearing 
 issues were framed for trial by jury covering the months named, and 
 also December and January preceding, such issues, so far as they related 
 to the months of December, January and April, were irregular, and a 
 general verdict of guilty rendered thereon must be disregarded. 
 [Campbell, J.] lUd. 
 
 14S0. But if no evidence was given on the trial of transactions out- 
 side the pleadings, the verdict should not be set aside because the issue 
 was too broad. [Chbistiancy, J.] lUd. 
 
 1481. "Where several issues are framed for trial by a jury, the jury 
 should pass upon each separately. [Campbell, J.] IJrid. 
 
 14§2. A deposition taken in the cause cannot be read on the trial of 
 issues by a jury, where the witness is personally present at the trial. 
 IMd. 
 
 12. Exhibits at the Hearing. 
 
 14§3. It is not a matter of course to allow a deed to be proved at 
 the hearing ; but a satisfactory excuse must be given for the failure to 
 prove it before the master. Batchdor u. Ndson, Wal. Ch., 449. 
 
 14S4. The documentary evidence referred to in the fifty-sixth rule, 
 has reference to documents which prove themselves. But to entitle a 
 party to use such documentary evidence, there must have been an order 
 entered for taking proofs, to give the opposite party an opportunity of 
 exhibiting witnesses relative thereto, or of introducing countervailing 
 proofs. lUd. 
 
 1485. Where_1ihe assignee of a mortgage files his bill to foreclose, 
 setting forth the mortgage and assignment, he may, upon the notice 
 required by the rule, (63 of old rules, 61 of new) have an order to prove 
 the assignment as an exhibit at the, hearing under rule 56. Jerome v. 
 Seymour, Har. Ch., 355. 
 
 13. Decree. 
 
 1486. Under greneral prayer : creditor's suit. A bill 
 may be filed by a judgment creditor for the double purpose of setting 
 aside a fraudulent conveyance and of reaching choses in action ; and if 
 
 187 
 
§ 1495 EQUITY PRACTICE. 
 
 there is no special prayer to have the fraudulent conveyance set aside, 
 the complainant is entitled to have it set aside under the general prayer 
 for other and further relief WiUiama v. Subbard, Wal. Ch., 28. 
 
 14§7. YThen pronounced. A final decree, or an interlocu- 
 tory order upon the merits of the case, will not be pronounced until all 
 the parties in interest are before the Court, and the case in readiness 
 for hearing as to all. GraJiam v. Elmore, Har. Ch., 265. 
 
 148§. If the cause is not in readiness as to one defendant, but is as 
 to another, the latter cannot notice it for hearing, but if complainant 
 does not proceed with the case, he may move to dismiss it for want of 
 prosecution. Ibid. 
 
 14§9. What is final. An application to dismiss a bill, is an ap- 
 plication for a final decree. Higgins v. Carpenter, Har. Ch., 256. Supra 
 105 to 120. 
 
 1490. The practice of making decrees final in form, which consist 
 in part of a reference to a commissioner to take an account between the 
 parties, is objectionable. JEhwa v. Sutherland, 9 Mich., 148. 
 
 1491. Between defendants. A decree may be made between 
 co-defendants grounded upon the pleadings and proofs between com- 
 plainant and defendants. Thurston v. Prentiss, 1 Mich., 193. 
 
 1492. Complainant dismissing bill. The complainant may 
 at any time before there has been an interlocutory or final decree in a 
 cause, dismiss his bill, of course, on payment of costs. Seymour «. 
 Jerome, Wal Ch., 356, 
 
 1493. Where an interlocutory order had been entered by consent of 
 parties, operating as an adjudication to some extent upon the rights of 
 the parties, the Court refused to allow complainant to dismiss. Ibid. 
 
 1494. If complainant has leave to dismiss conditionally, the defend- 
 ant, until the condition is complied with, may consider the case as in 
 Court or out of Court, at his discretion ; he may either proceed in it, or 
 consider it dismissed, and apply to the Court to enforce payment of his 
 costs. Jerome v. Seymour, Wal. Ch., 859. 
 
 1495. Form of decree. One of the defendants in a foreclo- 
 sure decree, who had a residuary interest in the mortgage foreclosed 
 after complainant's demand should be satisfied, filed a bill, the object of 
 which was to have the benefit of that decree, and also to foreclose the 
 mortgage against parties who were not but should have been parties to 
 the first suit. A decree was made in the case, in the ordinary form of 
 foreclosure decrees, and it was held not objectionable — it appearing 
 that since the original decree payments had come due as well on the 
 mortgage as on complainant's debt secured by it. Griggs v. Detroit and 
 Milwaukee Railway Co., 10 Mich., 117. 
 
 188 
 
EQUITY PRACTICE. § 1506 
 
 1496. "Where, on bill to redeem, a deed absolute in form is adjudged 
 to be a mortgage, and the mortgagee had, before the bill was filed, con- 
 veyed to one of the other defendants, the decree should direct the 
 amount due to be paid to such grantee instead of the mortgagee. Em- 
 erson v. Atwater, 12 Mich., 314, 
 
 1497. It is proper, in such a case, to direct a sale of the premises to 
 satisfy the amount due, in default of payment by the time fixed, instead 
 of decreeing a strict foreclosure. lUd. 
 
 1498. Foreclosure case: filing mortgage. Before decree 
 is granted in a foreclosure case, the mortgage and accompanying securi- 
 ties, if any, should be filed in Court, as evidence of complainant's pres- 
 ent right to control them. Young v. McKee, 13 Mich., 553 ; BaUey v. 
 GoiM, "Wal. Ch , 428 ; Basiett v. Hatliaway, 9 Mich., 28, But where a 
 case was contested on the sole ground that the mortgage and notes 
 were of no original validity, and they were not put on file, the Supreme 
 Court declined to reverse the decree for complainant on that ground, 
 but required them to be produced and filed, or their absence accounted 
 for by affidavit, before affirming it. Toung v. McKee, 13 Mich., 552. 
 
 1499. Correcting decree. The Court may correct a mistake 
 in a decree after it has been entered, either upon motion or petition. 
 Bates V. Garrison, Har. Ch., 321 ; Jerome v. Seynumr, Wal. Ch., 859. 
 
 1500. Setting aside decree. On motion to set aside a decree 
 for irregularity, the affidavits should show that the party is injured by 
 the irregularity. Michigan Inswrance Co. v. Whittemore, 12 Mich., 437. 
 
 1501. When the facts upon which the motion is made appear by 
 the record, it is not necessary to present them by petition. Oraham v. 
 Elmore, Har. Ch., 365. 
 
 1502. Opening decree. Each application to open a decree 
 regularly obtained by default, must depend upon its own circumstances, 
 and the sound discretion of the Court. RusseU v. Waite, Wal. Ch., 31 ; 
 Hart V. lansday, Wal. Ch., 72. 
 
 1503. The decree should only be opened under special circumstan- 
 ces, and to promote justice. Ibid. 
 
 1504. A stronger case must be made to open a decree than to set 
 aside a default. Hart v. Linsday, Wal. Ch., 72, 
 
 14. Costs. 
 
 1505. mortgage cases. Where complainant has a sale ad- 
 journed, he should pay the expense of adjournment himself. Hart v. 
 Linsday, Wal. Ch., 72. Rule for costs and commissions laid down. Ibid. 
 
 1506. Tailing depositions. Each party must pay for taking 
 down the cross examination of hia adversary's witness, as well as the 
 direct examination of his own. Saioyer o. Saviyer, Wal. Ch., 48. 
 
 189 
 
§ 1516 EQUITY PRACTICE. 
 
 1507. A defendant unnecessarily made a party, should have the bill 
 dismissed as to him with costs. Oregory v. Stanton, 12 Mich., 61 ; 
 BamsdeU v. Eaton, 13 Mich., 117. 
 
 1508. Partner§Iiip (iases. Where complainant was compelled 
 by the improper conduct of defendant, and without fault of his own, to 
 come into Court for a settlement of partnership accounts, he was held 
 entitled to costs. Wa/rd v. Jewett, Wal. Ch., 45. 
 
 1509. Against infants costs should not be awarded when they 
 are respondents in the litigation, and could not by any act of theirs 
 have dispensed with it. Smith v. Smith, 13 Mich., 358. 
 
 1510. Against administrator. Where a bill is dismissed at 
 the hearing, the costs are in the discretion of the Court, except where 
 special provision is made by statute ; even though the complainant be 
 administratrix, and the bill be filed in her representative character. 
 Daniels v. Eiserdord, 10 Mich., 454. 
 
 1511. Discretionary. Bill and cross bUl. Decree for complain- 
 ant in the original bill. Appeal to the Supreme Court, where the 
 decree was reversed, and both bills dismissed. Under the circumstances 
 of the case, costs of the Court below were awarded to neither party. 
 Avery v. Payne, 13 Mich., 540. 
 
 1512. "When due. It is the determination of the suit which en- 
 titles a party to costs, and the law then in existence is the rule by which 
 they are to be ascertained. Sawyer v. Stvdley, WaL Ch., 158. 
 
 1513. Retaxation. Where a party applies for a retaxation of 
 costs, he must bring the question before the Court by petition or 
 motion, specifying the items objected to as erroneously allowed. Or, if 
 he complains of irregularity, he must make a motion to have the taxa- 
 tion set aside on that account. Beeves d Scully, Wal. Ch., 346. Retaxa- 
 tion will be refused where there has been gross negligence. Hart t. 
 I/insday, Wal. Ch., 72, 
 
 15. Rehearing. 
 
 1514. A rehearing will not be granted where a party by lapse of 
 time has lost his right to appeal. Benedict v. Tlurmpson, Wal. Ch., 446, 
 
 16. Supplemental Okder of Sale. 
 
 1515. Ho'W obtained. Where after decree in a foreclosure suit 
 another instalment falls due on the mortgage, and a petition is presented 
 for a further order of sale, the petition should set forth briefly all the 
 facts necessary to enable the mortgagor, as well as the Court, to under- 
 stand its object. Albany City Bank v, Steevens, Wal. Ch., 6. 
 
 1516. A copy of the petition, with notice of the time of presentation 
 to the Courtj must also be served on the mortgagor, or, if it cannot be 
 
 190 
 
EQUITY PRACTICE. § 1526 
 
 served personally by reason of his absence from the State, it should be 
 served on his solicitor. Ihid. 
 
 1517. A copy of the petition need not be served on defendants made 
 parties as subsequent incumbrancers. lUd. 
 
 17. Setting Aside Sales. 
 
 151S. A much stronger case must be made to set aside the sale after 
 confirmation of report of sale than before. Sidlard v. Oreen, 10 Mich., 268. 
 
 1519. Yl^hat can be inquired into. On application to set 
 ■aside a sale, the Court cannot inquire into the regularity of the proceed- 
 ings resulting in the decree, nor vrtiether the decree was for a greater 
 or less sum than it should have been. Ibid. 
 
 1520. Surprise. The sale ■will not be set aside on the ground of 
 surprise, when the surprise springs from the negligence and inattention 
 of the party himself who complains of it. Ibid. 
 
 1521. Inadequacy of consideration. A sale at $350 will 
 not be set aside on the ground of inadequacy of consideration, when the 
 petition states the premises to be worth $700, and the evidence is that 
 they have since been sold by the purchaser at that price on long time, 
 but that for cash they would not sell for over $400. Ibid. 
 
 1522. L<aclies. Nor, if the inadequacy of price was sufficient, 
 would it be set aside on a petition presented sis months after the sale, 
 and which does not sufficiently excuse this delay. Ibid. 
 
 1523. Where the delay had continued until an execution had been 
 issued for a deficiency, and a sale made under which third persons had 
 acquired vested interests, and the purchaser had made payments to 
 redeem from former sales, the Court refused to set aside the sale on the 
 ground of surprise and inadequate consideration. Leonard v. Taylor, 12 
 Mich., 398. 
 
 1524. Complainant not appearing to have been guilty of any oppres- 
 sion, or unwilling at any time to receive the amount due him, it was 
 held a fatal objection to the petition that it neither offered to pay the 
 decree, or to increase the bid if a resale was ordered. Ibid. 
 
 18. Writ of Assistance. 
 
 1525. A writ of assistance will be granted to put the purchaser of 
 mortgaged premises in possession, if the defendant, on being shown the 
 master's deed, and a certified copy of the order confirming the sale 
 under the seal of the Court, refuse to deliver possession. Sort v. 
 Unsday, Wal. Ch., 144. 
 
 1526. But it will not be granted against a person not a party to the 
 suit, who has come into possession since the suit was commenced, unless 
 
 191 
 
§ 1534 EQUITY PRACTICE. 
 
 notice of the motion, with a copy of the aflSdavit on which it is founded, 
 is served upon him. Benhard v. Darrow, Wal. Ch., 519. 
 
 1527. "Where a subsequent mortgagee, who was not a party to the 
 suit, obtained possession of the mortgaged premises after decree, by 
 some arrangement with the owner of the equity of redemption, who 
 was a party — having at the time notice of the foreclosure proceedings 
 — it was held that his right to possession thus acquired was terminated 
 by a sale under the decree, and the purchaser was entitled to this writ 
 against him. Sakerv.Pierson, 5 Mich., 456. 
 
 19. Non-Resident Defendants. 
 
 1538. Appearing after default. Two things only are re- 
 quired by the statute of non-resident defendants to entitle them to ap- 
 pear and defend in mortgage cases : appearance before the premises are 
 sold under a decree, and payment of such costs as the Court shall direct. 
 The costs only are discretionary with the Court. Bailey v. Murphy, 
 Wal. Ch., 305. 
 
 1529. The statute as to non-resident defendants, makes no distinction 
 between mortgagors and subsequent incumbrancers. Ibid. 
 
 1530. Effect of appearing. The only effect of non-resident 
 defendants appearing and answering after decree, is to vacate the decree 
 as to them, leaving it to stand as against other defendants. Griggs v, 
 Detroit and MUwatikee Raihoay Co., 10 Mich., 117. 
 
 1531. If they appear and answer after decree, and after supplemental 
 bill filed to execute the same, and no further proceedings are taken in 
 the original suit, they must answer the supplemental bill if they would 
 protect the rights acquired by so appearing and answering the original 
 bill. Ibid. 
 
 1532. Decree for deficiency. If the bill is filed to foreclose a 
 mortgage against a non-resident mortgagor, who does not appear, a per- 
 sonal decree cannot be made against him for any deficiency that may re- 
 main after sale. Lawrence v. Fellows, Wal. Ch., 468. 
 
 1533. In partition cases. The jurisdiction of Courts of Chan- 
 cery over proceedings in partition as to non-residents, is special and 
 limited, and dependent entirely upon the statute. All the necessary 
 facts to confer jurisdiction must therefore affirmatively appear upon the 
 record. Piatt v. Stewart, 10 Mich., 260. 
 
 1534. An aflJdavit of non-residence is an essential pre-requisite to 
 an order for the appearance of non-resident defendants in such cases ; 
 and without such affidavit the order is void, and the Court acquires no 
 jurisdiction of the non-residents by its publication. Ibid. 
 
 19S 
 
ERKOB. § 1543 
 
 1535. The recital of an affidavit in the order is not evidence that 
 such an affidavit was made. Ibid. 
 
 1536. Personal decree against, Is void. Where a non- 
 resident defendant has not appeared, a decree for the payment of a sum 
 of money by him is void. And where another defendant in the case 
 appealed, and the decree against him was reversed, the void decree 
 against the non-resident defendant was also set aside. OiUhwUe v. Por- 
 ter, 13 Mich., 583. 
 
 20. SiTBPLTJB Moneys apteb Foreclostjiie. 
 
 1537. Petition for : notice. All the parties to a foreclosure 
 suit are entitled to notice of an application for surplus moneys after 
 foreclosure and sale, that they may appear and contest the right of the 
 applicant, and assert their own ; and an order for the payment of the 
 moneys to the petitioner without such notice, or the appearance of the 
 parties, is erroneous. Smith a. Smith, 13 Mich., 358. 
 
 1538. If the owner of the equity of redemption dies after sale, the 
 surplus moneys are personal estate ; and his personal representatives 
 should be made parties to a petition to obtain them. IMd. 
 
 ERROR. 
 
 1539. Halters of discretion. Error cannot be assigned on 
 the decision of the Court below of a motion, founded upon affidavits, to 
 vacate a judgment ; such motion being addressed merely to the sound 
 discretion of the Court. Gity of Detroit v. Jackson, 1 Doug., 106 ; Van 
 BensaeUur v. WhiUng, 13 Mich., 449. 
 
 1540. Nor, for the same reason, upon its decision in granting or 
 refusing a motion for a new trial. Dibble v. Sogers, 3 Mich., 404; 
 Bourke i). James, 4 Mich., 336 ; Orippen v. People, 8 Mich., 117 ; Oudiy 
 v. Major, 13 Mich., 368. 
 
 1541. Nor on its order dismissing an appeal case for want of pay- 
 ment of the entrance fee. Chaffee v. Soldan, 5 Mich., 343. Or refusing 
 to open a cause which has been submitted, and allow further proofs. 
 Zee v. Hardgraae, 8 Mich., 77. 
 
 1542. If the Circuit Court, on appeal from an order of the Probate 
 Court refusing a will to probate, can allow part of the proponents to 
 renounce and be discharged, the power to do so is discretionary, and a 
 refusal cannot be reviewed on error. Beaubien ■». Oicotte, 13 Mich., 459. 
 
 1543. But it is not a matter of discretion in a Court to allow a dis- 
 continuance at the trial as to a defendant who is manifestly made a 
 party for the sole purpose of depriving the other defendant, who 
 
 13 193 
 
§ 1553 ERROR. 
 
 is a citizen of another State, of his right to remove the case tp the 
 United States Court. Tctwkey v. Richardson, 9 Mich., 539. 
 
 1544. Error -wltliout lufury. On a writ of error, the Su- 
 preme Court corrects only su<di errors as have been committed ad- 
 versely to the interest of the party suing out the writ. Berry v. Lowe, 
 10 Mich., 9. And see People v. Scott, 6 Mich., 287. 
 
 1545. Judgment will not be reversed because counsel for one party, 
 in the argument to the jury, is permitted to take an erroneous view of 
 the law, if the Judge in his charge corrects the error, and truly states 
 the law on the point. People v-. Jenness, 5 Mich., 305. 
 
 1546. A charge in favor of the party excepting will not be reviewed 
 on error, whether right or- wrong. Brigham v., Qurney, 1 Mich., 349. 
 See Berry v. Lowe, 10 Mich., 9. 
 
 1547. An erroneous charge wJiiQh could not affect the verdict, is no 
 ground of error. Glark v., Moore,, 3 Mich., 55 ; Gumimngi v. Stone, 13 
 Mich., 70. 
 
 154S. Where exceptioij is taken to a charge which is not strictly 
 correct, but the Court can. clearly see that the jury could not have been 
 misled by it, to the injury, of the party- excepting, a new trial will not 
 be ordered for that error. People v. Scott, 6 Mich., 387. 
 
 1549. A plaintiff in replevin cannot complain that the Court 
 awarded nominal damages to him when the jury gave none ; the error, 
 if any, being in his favor. Sleight v. Eenning, 13 Mich., 371. 
 
 1550. A judgment: will not be reversed for a failure to award nomi- 
 nal damages to a plaintiff entitled to them, when a judgment therefor 
 would not have csirried costs. Hickey v. Baird, 9 Mich., 33. 
 
 1551. The admission of evidence from which no injury could result 
 to the plaintiff in error, is no ground for reversing a judgment. Min- 
 nesota Mining- Co. v. MiiiMal Mipdng Co., 11 Mich., 186. See Bose v. 
 Leiois, 10 Mich., 483; LyeUv. Sanbourn, 2 Mich.,.109. 
 
 1552. A judgment will not be reversed becasise inconsistent instruc- 
 tions were given to the jury, if those adverse to the plaintiff in error 
 were all correct. Niaga/ra Fire Insurance Co.. v. DeGraff,. X% Mich., 124. 
 
 1553. Unfair gugg;estioii8, A defendant . having claimed and 
 be6n allowed his exemption from testifying, on the ground that his 
 answers might tend to criminate him, counsel was permitted to comment 
 on that fact to the jury ; the Court remarking in the presence of the 
 jury, that " the refusal of the defendant to answer the question pro- 
 pounded to him on the ground stated, was not evidence against liim in 
 the cause, yet it was impossible to prevent the jury ftom having the 
 whole case, and knowing what was done in open Court in the course of 
 the trial before them, or to prevent counsel commenting upon it." 
 Held, that this suggestion by the Court, the effect of which might be to 
 
 194 
 
EREOR. § 1560 
 
 deprive the defendant of the benefit of his exemption, was erroneous. 
 Cwrne v. Litchjkld, 2 Mich., 340. 
 
 1554. Charge witbout evidenee to w^arrant it. A 
 
 charge to the jury as to the conclusive nature of a written contract 
 between the parties, if they shall find such contract established by the 
 evidence, when there is no evidence in the case showing or tending to 
 show a written contract of the kind mentioned, is improper, as tending 
 to mislead the jury. American Transportation Co. v. Moore, 5 Mich., 368. 
 
 1555. Reque§t how construed. On error the Supreme 
 Court must construe a request for instructions to the jury as it must 
 have been understood by the Court and jury had it been given. It 
 must therefore be construed in reference to the evidence upon the sub- 
 ject to whidi it relates. Angdl v. Bosenburg, 12 Mich., 241. See People 
 M. Scott, 6 Mich., 287. 
 
 1556. Verdict again§t evidence. The question whether the 
 jury did not find against evidence or perversely, cannot be considered 
 on writ of error. Niagara Fire Insurance Co. v. DeOraff, 12 Mich., 124 
 
 1557. Curing error. Where a question put by a party to his 
 own witness is erroneously overruled, the error is not cured by his 
 being allowed afterwards to put the same question to the witness of the 
 other party on cross examination. Flanigan v. Lampman, 12 Mich., 58. 
 
 155S. "Where an objection to a question is improperly overruled, 
 and the witness in reply to it says " I can't say," the answer renders 
 the question immaterial, and an exception to the ruling cannot be sus- 
 tained on error. Peck a Snyder, 13 Mich., 31. 
 
 1559. Action on promissory note. Defense, set off and payment. 
 The defendant offered evidence of a payment of five dollars, which was 
 excluded by the Court on the ground that the item was not mentioned 
 in the bill of particulars of set off. Plaintiff having recovered judgment 
 was allowed by the Court to remit five dollars of the amount, with a 
 view to curing the error. Held, that the error was not cured, as by 
 rejecting evidence of this payment, the Court in effect denied the de- 
 fendant the right to prove any item of payment without giving notice ; 
 and it cannot be seen, therefore, that other payments were not ex- 
 cluded., Olcottv. Hanson, VS,Wm)i.,iSi. Bee supra 935. 
 
 1560. "Waiving error. Action in the County Court by plain- 
 tiffs as co-partners. On the trial a contract signed by defendant, in 
 which a partnership (which plaintiffs claimed to be themselves) was 
 mentioned, was produced and proved, under objections by defendant. 
 The case being removed to the Circuit Court by certiorari, the nature 
 of the objections did not appear, nor did any direct evidence of plain- 
 tiffs' partnership appear. Held, that as aflirmative proof of plaintiffs' 
 partnership was necessary to a recovery, they could not claim that it 
 
 195 
 
1569 ERROR. 
 
 was made out by the contract, unless they showed affirmatively that the 
 objections made by the defendant were such as to amount to an admis- 
 sion of the partnership, or to a waiver of proof of it. Lee v. Swrdgrme, 
 3 Mich., 77. 
 
 1501. Where application to make the opposite party a witness upon 
 a ground provided by the statute (of 1846) was denied in the Court 
 below, the party applying cannot, upon error, allege other facts making 
 such party a competent witness, which, though appearing in the pro- 
 ceedings, were not suggested in the Court below. MeBride v. Cicotte, 4 
 Mich., 478. 
 
 1562. Error -will not be presnmed, but must be made to 
 appear affirmatively. Comstock v. HoUon, 2 Mich., 355 ; Burriham v. 
 People, 3 Mich., 195 ; JJosA ». Whitney, 4 Mich., 495 ; Sweetzer v. Mead, 5 
 Mich., 33 ; Achey v. Hull, 7 Mich., 433 ; Maynwrd, ®. Penniman, 10 Mich., 
 153 ; Eermott v. Ayer, 11 Mich., 181 ; MorrUsey v. People, 11 Mich., 337 ; 
 Bann v. Oudney, 13 Mich., 239. 
 
 1363. It wiU not be presumed that facts were given in evidence not 
 admissible under the pleadings. Comstock v. SoUon, 3 Mich., 355. 
 
 1564. In support of a judgment the evidence will be presumed to 
 have been sufficient. Farmers and Mechanics^ Bank v. Troy City Bank, 
 1 Doug., 457. 
 
 1565. Where a cause is tried In the Circuit Court without a jury, 
 and no exceptions are taken to the legal rulings, upon which the Court 
 arrives at its application of the facts and the evidence, and no case, 
 made under the statute, is brought before the Supreme Court, that 
 Court is not at liberty, on writ of error, to examine into the propriety 
 of anything in the decision of the Court below, based upon its finding 
 of facts; but must take its conclusions as founded upon the law and the 
 evidence. Sweetzer v. Mead, 5 Mich., 107. 
 
 1566. But where a cause was tried by the Circuit Judge without a 
 jury, and improper evidence was admitted to establish a material point, 
 and the nature of the case was such that it could not be presumed other 
 evidence was given on that point; it was held that the judgment 
 should be reversed, notwithstanding the bill of exceptions did not state 
 that all the evidence was set forth. Bliss «. Paine, 11 Mich., 93. 
 
 1567. A writ of error did not lie from the Supreme Court to 
 the County Court ; a remedy by certiorari being given. Hiney v. Cade, 
 1 Mich., 163. 
 
 156§. To authorize the writ there must be a final judgment or de- 
 termination in the inferior Court ; it will not lie to bring up interlo- 
 cutory proceedings merely, or discretionary orders made pending the 
 litigation. Holbrook v. Cook, 5 Mich., 335. 
 
 1569. Nor wiU it lie where the proceedings are not after the] course 
 196 
 
ERROR. § 1581 
 
 of the common law ; it is not enough that they are had in a Court 
 whicli ordinarily and primarily exercises common law jurisdiction. 
 IMd. And see Parker v. Copland, 4 Mich., 528. 
 
 1570. Held, therefore, that an order of the Circuit Court reversing 
 an order of the Probate Court for the removal of an administrator, and 
 remanding the case to that Court for action upon the administrator's 
 account filed therein, could not be removed to the Supreme Court by 
 ■writ of error. Holbrook v. Cook, 5 Mich., 225. 
 
 1571. But when a proceeding to recover possession of lands, under 
 the statute " of forcible entries and detainers," is appealed to the Cir 
 cuit Court, it becomes, in that Court, a proceeding according to the 
 course of the common law ; and error is the only mode of reviewing, in 
 the Supreme Court, the judgment of the Circuit Court. Parker v. Cop- 
 land, 4 Mich., 528. 
 
 1572. Error will not lie on a conviction in the Recorder's Court of 
 Detroit for an offense against a city ordinance. Jackson v. People, 8 
 Mich., 362. 
 
 1573. "Where an appeal has been taken to the Circuit Court from the 
 decree of the Probate Court allowing or disallowing a will, and a trial 
 is had, error lies to remove to the Supreme Court the adjudication of 
 the Circuit Court upon the appeal. American Misaiona/ry TTrdon v. 
 Peck, 9 Mich., 445. 
 
 1574. It makes no difference that a formal issue was not made up in 
 the Circuit Court, since the substance of the Issue is the same, whether 
 made up in form or not. Ibid. 
 
 1575. Who may bring error. Where one party appeals from 
 the decision of the Judge of Probate to the Circuit Court, and in that 
 Court the decision appealed from is affirmed, the party appealing is the 
 only one who can bring error : since he alone can be said to be aggrieved 
 by the judgment of the Circuit Court. Jackaonv. Hosmer, 14 Mich. 
 
 1570. Errors of fact. The Supreme Court has jurisdiction of 
 errors of fact, as well as errors of law. Teller v. WethereU, 6 Mich., 46. 
 
 1577. If necessary a venire may be issued for a jury to try in that 
 Court the issue joined on assigmnent of error of fact ; or it may be sent 
 to the proper circuit for trial. Ihid. 
 
 157§. Errors of fact may be assigned in the Supreme Court on the 
 common writ of error. Ibid. 
 
 1579. Circuit Courts have no power in any case to issue writs 
 of error. Ibid. 
 
 1580. Writ barred by lapse of time. A motion to dismiss 
 is the proper form of objection to a writ of error supposed to be barred 
 by lapse of time. Teller v. Willis, 12 Mich., 268. 
 
 15S1. The statute limiting the time for bringing writ of error, com- 
 
 197 
 
§ 1589 EREOR. 
 
 mences running from the rendition of the judgment, and is not affected 
 by the settlement of exceptions afterwards. Tdler v. WiUis, 13 Mich., 
 384. 
 15S2. Settlement of exceptions after error brought. 
 
 A party is not obliged to wait until his exceptions are settled before 
 suing out his writ of error. The exceptions, if sealed and filed after 
 error, brought, may be brought up like any other omitted portion of the 
 record. Ibid. 
 
 15§3. The Supreme Court will always give a plaintiff' in error the 
 benefit of his exceptions — unless by his fault or laches he has occasioned 
 the delay himself— by extending the time for return, or for the assign- 
 ment of errors, or by allowing a new assignment, as the case may re- 
 quire. Ibid. 
 
 1584. Wliat reviewed. On error, the case can be reyiewed on 
 errors of law only ; not on conflicting testimony. Higley v. Lant, 3 
 Mich., 613 ; MiUer v. Ghaffee, 1 Mich., 357 ; Bromky v. People, 1 Mich., 472. 
 
 1585. Where there was a finding of facts by the Circuit Judge, the 
 evidence can be examined on error only so far as to see whether it terids . 
 to support the finding ; and the finding can be reviewed only so far as 
 to see whether the legal conclusions and judgment are warranted by the 
 facts found. TiUman v. FvUer, 13 Mich., 113. See Sweetzer v. Mead, 5 
 Mich., 107. 
 
 1586. Where the plaintiff sued on a parol agreement as a demise, 
 and the Judge in his finding did not directly find that there was a de- 
 mise, and did not find such facts as would warrant the conclusion as one 
 of law, it was held that plaintiff could not recover. Ibid. 
 
 1587. On exceptions every part of the charge of the Court must be 
 presumed to be correct, and to be warranted by the evidence, so far as 
 the bill does not show the contrary. People v. McKinney, 10 Mich., 54. 
 To enable the Court to judge of the propriety of instructions to the jury, 
 which instructions assume the existence of certain facts, the bill of ex- 
 ceptions must either contain the evidence of those facts, 6r a statement 
 that there was such evidence. Tyler i). People, 8 Mich., 330. 
 
 1588. Affidavitson which amotion for a new trial was based, though 
 sent up with the record, form no part of it, and cannot be looked into 
 for the purpose of determining whether the Court erred in denying the 
 motion. Crippen v. People, 8 Mich., 117. 
 
 1589. Where an objection was taken on the trial to the recovery of 
 certain damages on the ground solely that they were not allowed by the 
 statute, and the objection correctly overruled, it was held that the Court 
 would not, on error, reverse the judgment on the ground that the de- 
 claration was too general to include such damages. Achey v. EuU, 7 
 Mich., 433. 
 
ESTATES OF DECEASED PERSONS. § 1597 
 
 ESTATES OF DECEASED PERSONS. 
 
 1590. Title to personalty. Until administration and distritiu- 
 tion, no title to the personal property of an intestate passes to tlie next 
 of kin, and they can maintain no action in respect to it nnless it be 
 founded upon their own actual possession, and . against a mere wrong 
 doer. GiiUen v. O'Sara, 4 Mich., 132. 
 
 1591. InsolTent estate. "Where, under R S. of 1838, an estate 
 had been represented insolvent by an administrator de bonis non, a 
 motion was granted staying proceedings on executions for balances due 
 on mortgage foreclosures which had been levied before such represen- 
 tation of insolvency. Qaaekeriboss i>. OampieU, Wid. C'h.,525. 
 
 1592. Administrator's control of lands. Before the Sta- 
 tutes of 1846 an administrator had no interest in or authority over real 
 estate, unless the personal property of the intestate was insufilcient to 
 pay his debts ; and then he could only dispose of it as empowered by the 
 Probate Court. Thayer v. Lane, Wal. Ch., 200. 
 
 1593. The Statutes of 1846 — Comp.L., § 2904 — empowering execu- 
 tors and administrators to take possession of the lands, does not exclude 
 the possessory right of heirs or devisees, but merely permits the execu- 
 tors or administrators to claim and have possession, if they see fit to de- 
 mand it Streeter v. Paton, 7 Mich., 341 ; Ma/rmn -o. SchUUng, 12 Mich., 
 356. The heir or devisee, therefore, when possession has not been de- 
 manded by the personal representative, may maintain ejectment against 
 third persons. Ibid. 
 
 1594. The interest of the executor or administrator under this sta- 
 tute is not a chattel, and cannot be sold by him. It is only given to 
 enable him to receive the rents and profits of the land while the estate 
 is being settled. Kline «. Moulton, 11 Mich., 370. 
 
 1595. On the death or removal of the administrator, his possessory 
 right, and the rents and profits connected with it, pass to his successor, 
 who may maintain ejectment to recover possession from one claiming 
 under the first administrator. And this notwithstanding the first admi- 
 nistrator was one of several heirs, and had made a contract in his < wn 
 name to sell the lands to the person in possession. Ibid. 
 
 1596. "Waiving land contract. An administrator, as such, 
 has no authority to waive or release a contract made by his intestate for 
 the purchase of lands, unless the personal property is insufBcient to pay 
 the debts ; and then only by order of the Probate Court, duly obtained. 
 Sunt V. Thorn, 2 Mich., 213. 
 
 1597. Selling land contract. An administrator cannot sell the 
 interest of the estate in an executory contract for the purchase of lands, 
 except as real estate and after license. Baxter v. Bobinson, 11 Mich., 530. 
 
 199 
 
g 1606 ESTATES OF DECEASED PERSONS. 
 
 1598. JVeglecting- payiaeiit§ on. Where payments fell due 
 ou such, a contract, which the administrator had no funds in his hands to 
 pay, but money for that purpose was promised by creditors of the estate, 
 which he neglected to obtain, and the contract became forfeited ; it was 
 held that these {acts did not render the administrator liable to the heirs ^ 
 for the value of their interest in the land thus forfeited. IMd. 
 
 1599. Sale by administrator : credit. Whether, under the 
 Code of 1833, an administrator was authorized, in any case, to give credit 
 upon a sale of real estate of the intestate for the payment of his debts, 
 under a license of the Probate Court, and whether, if he did so, he was 
 not chargeable with the price as money in his hands, quere. Palmer, et al 
 appellants, 1 Doug., 433. 
 
 1600. Administrator purchasing. An administrator cannot 
 become the purchaser of the estate or effects of his intestate. And 
 where two administrators made sale of lands of the intestate to one of 
 the two, and executed a deed therefor, the deed was held void, notwith- 
 standing the sale and conveyance were under the order of the Probate 
 Court. The question of intent or fairness cannot be considered in such 
 a case. Dwight v. Blackma/r, 3 Mich., 330. 
 
 1601. And a sale was set aside in chancery where an administrator 
 procured another person to bid in the premises in his own name, and 
 then deed them over to the administrator. Beaubien v. PouparcL, Har. 
 Ch., 306. 
 
 1602. A Judge of Probate cannot become interested in a sale 
 made under his order. WaMon v Torrey, Har. Ch., 259. 
 
 1603. Adjournment of sale. Where the day appointed for an 
 administrator's sale is rainy and inclement, and but few persons appear 
 and bid, and the bids do not exceed half the value of the property, it is 
 the duty of the administrator to adjourn the sale. Beaubien v. Poupard, 
 Har. Ch., 306. 
 
 1604. Right to sell terminated. Where license to sell real 
 estate was granted by the County Court, and after license but be- 
 fore sale the law giving that Court jurisdiction was repealed, it was 
 held that the repeal of the law was a revocation of the license, and a 
 sale subsequently made was void. Gampau ®. CHUett, 1 Mich., 416. 
 
 1605. A sale under a license granted under the territorial statute of 
 July 37, 1818, was held void where it was made more than four years 
 after the license was granted ; — the statute of limitations then in 
 force barring all claims against the estate after four years. Ibid. 
 
 1606. See also Matter of Godfrey Estate, where it was held that if 
 the creditors have lost their remedy against the executor or adminis- 
 trator by lapse of time, the Courts will not license a sale of the real 
 estate for the payment of claims thus barred. 4 Mich., 808. 
 
 300 
 
ESTATES OP DECEASED PERSONS. § 1615 
 
 1607. Held also, wlaere the administrator, seventeen years after the 
 estate was reported insolvent, petitioned for license to sell lands to pay 
 debts, that the license should be refused whether the action of credi- 
 tors against the administrator was barred by the statute or not. lUd. 
 
 1608. Under the Statutes of 1838 the license to sell lands was in force 
 for a year. Held, that if the sale was made within the year, the deed 
 might be executed and delivered afterwards. Howard v. Moore, 3 Mich., 
 326. 
 
 1609. Defects in proceedings. Irregularities in the proceed- 
 ings by an administrator for the sale of the real estate of the decedent, 
 will not affect the title of the purchaser, where there has been a com- 
 pliance with so much as the statute makes essential to the validity 
 of the sale, and the good faith of the purchaser is not questioned. Coon 
 V. Fry, 6 Mich., 506 ; Howard ®. Moore, 3 Mich, 336 ; Palmer v. OaUey, 
 2 Doug. 433. 
 
 1610. Accordingly where, in such case, the application of the ad- 
 ministrator for license to sell was not verified by oath ; guardians 
 were not appointed for^he infant heirs ; and the administrator's report 
 of the sale to the Probate Court omitted to show the price at which the 
 land was sold, it was held that none of the omissions affected the title 
 of the purchaser. Goon v. Fry, 6 Mich., 506. 
 
 1611. Commissioners to audit claims. Where conunision- 
 ers have been appointed to examine and adjust claims against the estate 
 of a deceased person, the estate is not bound by an account stated with 
 the administrators. Fish v. Morse, 8 Mich., 34. 
 
 1612. Appeal. Where an appeal is taken to the Circuit Court 
 from the action of the commissioners upon a claim, the Circuit Court 
 should not render judgment in the common law form, but simply aUow 
 or disallow the claim. LaRoe v. Fredand, 8 Mich., 531. 
 
 1613. Costs. Where an executor resisted a claim against the tes- 
 tator in the Circuit Court, and after decision by the Court allowing it, 
 removed the case to the Supreme Court, and that Court was of opinion 
 that there was no reasonable ground for resisting the claim, costs of 
 the Supreme Court were awarded to the claimant. Dodge v. Stanton 
 13 Mich., 408. 
 
 1614. Suits against administrator. A bill filed by a creditor 
 against the administrators of his deceased debtor, and others, to set aside 
 a conveyance made by the deceased as fraudulent, and subject the land 
 to the payment of debts, is not within the Statutes of 1838, p. 388 § 10, 
 prohibiting the conmiencement of suits against administrators within 
 one year after their appointment, &c. Manning v. Drake, 1 Mich., 34. 
 
 1615. A foreign administrator has no interest in the real or 
 
 personal property of his intestate in this State. Thayer v. Lane, Wal. 
 
 Ch., 300. 
 
 201 
 
1633 § ESTOPPEL. 
 
 1616. When next of kin to act. Suit in equity to compel 
 the execution of the trust in an assignment for the benefit of creditors. 
 On a reference to ascertain the amount of the debts, it was held that 
 the assignor was not entitled to appear on behalf of an estate of which 
 he was administrator, to prove a claim against himself in favor of such 
 estate ; but that the next of kin of the deceased, or other persons en- 
 titled to the moneys from him as administrator, might do so. BiiyAam v. 
 Dequindre, Wal. Ch., 33. 
 
 ESTOPPEL. 
 
 161'J'. A tenant is estopped from disputing the title of his land- 
 
 \ \om:''^yrn6 v. Beeson, 1 Doug., 179 ; Wallcneir v. Beers, 3 Doug., 117 ; 
 
 >4 Lee V. Payne, 4 Mich., 106. And see Blancha/rd v. Tyler, 13 Mich., 339. 
 
 But after eviction by one having paramount title, he is excused from 
 
 paying rent. Ma/rsh v. Butterworth, 4 Mich., 575. 
 
 1618. A lessee of a mortgagor is not estopped, in an action of eject- 
 ment brought against him by the mortgagor, from showing, to protect 
 his possession, that he has become assignee of the mortgagee. NUes v. 
 Bansford, 1 Mich., 838. 
 
 1619. A promise void under the statute of frauds, cannot be 
 enforced as an estoppel where the party has not been misled as to the 
 facts. Accordingly where an administratrix promised one that if the 
 latter would attend a sale of real estate to be made by her, and bid a 
 certain amount, her right of dower in the land should pass by the sale, 
 it was held that she was not thereby estopped from claiming it. WrigM 
 V. DeQroff, 14 Mich. 
 
 1620. By deed. One who gives a deed of lands which are in 
 the adverse possession of another, is estopped from disputing the deed ; 
 and the grantee may enforce ]m rights under it, against the person in . 
 possession, in the name of the grantor. Stockton v. Williams, 1 Doug., 
 546. 
 
 1621. A lease which one executes as agent of the lessor, would 
 estop him from setting up any claim to the land inconsistent with the 
 lease. SlancTuwd v. Tyler, 13 Mich., 339. 
 
 1622. The deed of an administratrix, containing a covenant to war- 
 rant the title against any one claiming under the grantor, does not 
 estop her from claiming dower in the premises as widow of the de- 
 ceased. WrigM i). DeQroff, 14 Mich. 
 
 1623. Privies. Where R. made claim to a lot in Detroit under a 
 warranty deed from M., and the Governor and Judges deeded the lot 
 to R. in pursuance of such claim, it was held that, in proceedings by 
 the widow of M. to recover dower in the lot, those claiming under B. 
 
 303 
 
ESTOPPEL. § 1G30 
 
 were estopped from denying the seizin of M. May ». TiUman, 1 
 Mich., 363. 
 
 1624, The purchaser of an equity of redemption, who has gone into 
 possession under his purchase, is estopped, when proceedings are talien 
 to foreclose the mortgage, from denying the title of the mortgagor. 
 Warner v. Blanchard, 3 Mich., 11. 
 
 1623, Invalid contract. A paper signed by a judgment 
 debtor and delivered to the attorney of his creditors, agreeing to com- 
 promise the judgment in a certain way, or in default thereof to deliver 
 certain property levied upon in payment, cannot estop him from claim- 
 ing the levy to be invalid, where it appears that the attorney had no 
 authority to enter into such an agreement, or to compromise the judg- 
 ment in any manner. Mckep v. Sinadaie, 13 Mich., 99. 
 
 1626, Estoppel by non-claim. Where a creditor was ad- 
 vised by his debtor and a third party, that the two were in treaty for a 
 transfer to such third party of the debtor's property, but was not 
 Informed that by such transfer the debtor was to deprive himself of 
 the means of paying his debts ; and he was called upon by them to 
 declare whether he had any claim against the debtor, or the property 
 in question, and declined to answer ; it was held that he was not, by 
 his silence, estopped from seeking relief against the transfer as a volun- 
 tary one. Oicotte v. QagnUr, 2 Mich., 381. 
 
 1627, Where one standing in position of mortgagor of a mortgage, 
 was present at and assented to a subsequent assignment of the mortgage 
 by his assignee, to secure a debt of the latter less than the amount that 
 it was first assigned to secure ; it was held that he was not thereby 
 estopped from asserting his right to redeem, since he must be under- 
 stood as assenting only to an assignment of such interest as his assignee , 
 had in the mortgage. Oraydon v. Church, 7 Mich., 36. \/ 
 
 1628, Nor would statements made by him at the time, that if the 
 debt he was owing was paid from the mortgage he would be satisfied, 
 estop him from redeeming. Ibid. 
 
 1629, And where a receiver in chancery, to whom such a mort- 
 gagor of the mortgage had assigned, was called upon by a subsequent 
 assignee to redeem his interest in the mortgage, and was told that 
 unless such redemption was made, such assignee was about to transfer 
 the mortgage to another ; and the receiver declined to redeem, and told 
 the assignee he might sell to whom he pleased, whereupon the assignee 
 did sell, but to one who was aware of the conditional nature of the 
 assignments ; it was held that the receiver was not thereby estopped 
 from asserting his right to redeem. Ibid. 
 
 1630, After an irregular foreclosure of a mortgage, one of two sub- 
 sequent joint mortgagees was inquired of by one who contemplated a 
 
 203 
 
1635 § EVIDENCE. 
 
 purchase of the land, whether he had any claim upon it, and was told 
 that he had not. The inquirer then purchased the land from the first 
 mortgagee. It was held that such subsequent mortgagees were es- 
 topped from setting up any claim under their mortgage against such 
 
 % purchaser. Gooh v. FinUer, 9 Mich., 131. 
 
 '' 1631. Where the husband of a woman sold a horse belonging to her, 
 without her authority, and she was informed of the sale before pay- 
 ment had been made, and had ample opportunity afterwards to inform 
 the purchaser of her rights, but neglected to do so until he had made 
 payment to the husband, it was held that she was thereafter estopped 
 from asserting title to the horse against the purchaser or those claim- 
 ing under him. Dann v. Gudney, 13 Mich., 239. 
 
 1632. By recognizing right. A corporation which, with full 
 knowledge of the facts, has issued to the finder of a certificate of shares 
 therein, a new certificate in its place, is estopped, as against a purchaser 
 of such new certificate, from setting up the doubt as to the title as a rea- 
 son for refusing to allow a transfer of the certificate on its books. Man- 
 dUbaum v. North American Mining Go.,, 4 Mich., 465. 
 
 1633. By de§troying deed. Where land has been sold and 
 paid for, and a deed executed and delivered, the subsequent refunding 
 of the consideration to the purchaser, and the destruction of the deed 
 
 ' by agreement of the parties to it, will not revest the title to the land in 
 the grantor. But if the grantee or those claiming under him afterwards 
 set up title to the land, they are estopped from showing by parol the 
 contents of the destroyed deed. Giigins v. Van Qorder, 10 Mich., 533. 
 
 ESTRAYS. 
 
 1634. No one but a resident freeholder of the township being 
 authorized by statute — Comp. L., § 1605 — to take up stray beasts, the 
 act by any one else is a trespass which cannot afterwards be assumed 
 and made lawful by a freeholder. Accordingly, where the minor son of 
 a resident freeholder, took up a stray beast without authority, and the 
 father subsequently adopted the act, but stated that he should not him- 
 self have taken up the beast, it was held that the proceedings were 
 unauthorized, and the subsequent sale of the astray under the statute 
 void. Newsom v. Hart, 14 Mich. 
 
 EVIDENCE. 
 
 1. General Puepose. 
 1633. In all testimony the object of the law is, to enable the jury to 
 know all that the witness knows which is pertinent to the issue ; and 
 204 
 
EVIDENCE. § 1642 
 
 every rule of evidence is designed to secure this end. BeamUen v. 
 Cicotte, 13 Mich., 459. 
 
 1636. In general the rules of evidence are the same at law as in 
 equity, and the principles which govern the means of obtaining proof 
 are substantially the same in the one Court as in the other ; and the 
 rules of property and interpretation are or should be the same in 
 both. Dougherty ». Randall, 3 Mich., 581. 
 
 3. COMPETEKCT OP PABTIES. 
 
 1637. ActiOM against carriers for the value of a trunk con- 
 taining wearing apparel, alleged to have been lost by their negligence. 
 The declaration was on the contract of aflfreightment, and did not aver 
 that the clothing was the ordinary wearing apparel of a person who 
 had taken passage on defendants' boat, or that it was received as such. 
 Held, that plaintiff could not be allowed to prove by his own evidence 
 the contents of the trunk. Clark v. Moore, 3 Mich., 55. 
 
 163S. Proving accounts. Section 85 of chap. 93 of R. S. of 
 1846, authorized parties to be witnesses to prove their own accounts, 
 after making oath that there was no disinterested witness whose at- 
 tendance could be procured, by whom the same could be proved. 
 Plaintiff sued for the balance of a book account, and the defendant 
 admitted the debts charged to him on the plaintiff's books ; and it was 
 held that the plaintiff could not then be sworn to prove his account 
 under this section. Morae v. Gongdon,.Z Mich., 549. 
 
 1639. This statute did not make a party a competent witness to 
 prove that on a settlement of accounts he gave the other party credit 
 by mistake for a sum which had not been paid. Ihid. 
 
 1640. Under K. S. 1846, ch. 102, sec. 100. This section 
 — Comp. L., § 4340 — provided that whenever either party should file an 
 affidavit, setting forth that any facts material to the issue or question to 
 be tried were within the knowledge of any other party, and that there 
 was no competent witness whose testimony he could procure by whom 
 such facts could be proved, the parties to the suit or proceeding, or any 
 other person interested, might be examined on oath in relation to such 
 facts. It was held that a party would not be permitted to call upon his 
 opponent to testify under this section, where it was apparent from the 
 affidavit made, or the prior proceedings in the cause, that there were 
 other witnesses attainable by whom the same facts could be shown. 
 McBride v. Cicotte, 4 Mich., 478. 
 
 1641. The " other party " referred to in said section, was the oppo- 
 site party. Ibid. 
 
 1642. Plaintiff in an action upon a premium note, having given the 
 defendant notice to produce the policy upon which the note was given, 
 
 205 
 
§ 1651 JIVIDEKCE. 
 
 which he refused to do, made the affidavit required by this section, set- 
 ting forth the facts within the knowledge of the defendant to be, 
 the issuing of the policy, its number, its receipt by defendant, its con- 
 tents, and the policy. Held that under this affidavit plaintiff was en- 
 titled to examine the defendant as to the existence of the policy, its re- 
 ceipt by him, its contents, and to its production in Court if in his posses- 
 sion or under his control. Way v Billings, 2 Mich., 397. 
 
 1643. Where a party sworn as a witness under this section gave an 
 answer clearly evasive, and uncandid, it was held that the Court should 
 permit the broadest latitude of inquiry necessary to elicit the truth and 
 effectuate the object of the law. Ibid. 
 
 1644. The office of the affidavit under this section was, to point 
 out the fact to be proved, and not the evidence of the fact. "Within the 
 range of the affidavit the party was to be examined like any other wit- 
 ness ; and it was as competent for him to prove a fact by the admissible 
 declarations of others, as it was for any other witness. Sogan v. Sher- 
 man, 5 Mich., 60. 
 
 1645. Under R. S. 1§46, CU. 102, § 102. This section— Comp. 
 L., § 4342 — which authorized the examination of the parties as witnesses 
 in certain cases, was only applicable to actions ex contractu. Carne v. 
 Lite7ijidd,2 Mich., 340. 
 
 1646. Under Circuit Court rule 48. Where the Circuit 
 Court made an order that the parties be examined as witnesses, and 
 they were examined accordingly, it was held not error to refuse to per- 
 mit one of them to be sworn on his own behalf on a second trial — the 
 other not being present. Lester v. Sutton, 7 Mich., 339. [The rule au- 
 thorized thfe Circuit Courts, " at any time, in accordance with and for 
 the furtherance of justice," to call upon all or any of the parties to be 
 sworn]. 
 
 1648. Parties in chancery. Where one defendant answered, 
 and the other interposed a plea which was put in issue, and the defend- 
 ant answering was examined as a witness for his co-defendant, it was 
 held that his testimony must be restricted to matters, in support of the 
 plea, in which he was not himself interested. Emerson v. Atwater, 7 
 Mich., 13. 
 
 1649. It was the interest of the party in the subject matter to which 
 he was examined, and not the effect his evidence might have in the final 
 determination of the issue, that rendered him incompetent. lUd. 
 
 1650. In a contest between two mortgagees as to the priority of 
 their respective liens, the mortgagor, being personally liable for both 
 the mortgage debts, was disinterested, and might be made a witness 
 under chancery rule 55. WUcox v. HiJl, 11 Mich., 356. 
 
 1651. Where a bill was filed to restrain the foreclosure of a mort- 
 
 306 
 
EVIDENCE. § 1661 
 
 gage which was alleged to have been discharged, the defendant clainiing 
 to own the mortgage could not be called as a witness by the other de- 
 fendants, since there was no part of the case in which he was not per- 
 sonally interested. Bassett v. Hathaway, 9 Mich., 38. 
 
 1652. Nor could a defendant be calledjas a witness to sustain the 
 mortgage when the effect of sustaining it would be to charge the land 
 with the pajntnent of his personal obligation. Ibid. 
 
 1653. Complainant could not examine as a witness a defendant 
 against whom he sought relief; if the answer was insufficient, he 
 should except ; and if his testimony was sought to facts not stated in 
 the biU, it should be amended. Thomas v. Stone, Wal. Ch., 117. The 
 deposition of such a party suppressed, and the taking of it by complain- 
 ant held not to amount to a release to him. Norris v. Surd, Wal. Oh., 
 103. 
 
 1654. By statute since all the foregoing decisions were made, par- 
 ties to suits, and all other persons interested, are made competent wit- 
 nesses generally. Imws of 1861, p. 168. 
 
 3. Competency of Other Persons. 
 
 1655. A witness is presumed competent until the contrary appears. 
 Norris D.Eurd, 'Wal. Ch., 103. 
 
 1656. A person Is not incompetent to testify on behalf of the plain- 
 tiffs, in a suit brought by the highway commissioners of a township in 
 their name of office, by reason of having himself been one of the com- 
 missioners when the suit was brought. Highway Commissioners v. Stock- 
 man, 5 Mich., 538. 
 
 1657. Stockholders in a corporation, who were personally liable 
 for its debts, were competent witnesses for the plaintiff in a suit against 
 the corporation. Mosey v.. White Pigeon Beet Sugar Go., 1 Doug., 193. 
 
 1658. A legatee, it seems,, was a competent witness to a wiU ; the 
 Statutes (of 1838) making the tegwy- void. High, appellant, 3 Doug., 
 515. 
 
 1659. He would be a competentt witness in support of the wiUimder 
 Comp. L., § 4339; althougii, inter-estedi Lawyer v. Smith, 8 Mich., 411. 
 
 1660. The acceptor of a> bill; for- Tv^hose accommodation it 
 was drawn and indorsed, and who first negotiated it to the plaintiff, was 
 held a competent witness in a suit between the first indorsee and the 
 indorser, to prove facts which would render the bill void. Orrv. Laeey, 
 2 Doug., 330. 
 
 1661. A Joint defendant in an action*ex contractu, not served 
 with process, and not appearing, was held not a competent witness for 
 his co-defendant under said §4339, although released by him ; as he 
 still remained a party to the record. Brooks ■b. Mclntyre, 4 Mich., 316. 
 
 207 
 
§ 1672 EVIDENCE. 
 
 1662. Interest balanced. A person equally liable to both 
 parties was a competent witness for either. Woodhury v. Lems, Wal. 
 Ch. 256. 
 
 1663. A surety in an appeal bond might be a witness for the ap- 
 pellant under said § 4339. He is not a party to the appeal, nor is it pro. 
 secuted " in his immediate and individual behalf" White v. Bailey, 10 
 Mich., 155. 
 
 1664. Husband and -wife. "Where two persons were jointly 
 charged in the same complaint with the commission of the same offense, 
 and neither of them had been either acquitted or convicted, the hus- 
 band of one was held not a competent witness for the other, who, by 
 leave of the Court, was tried separately. PtiUm v. People, 1 Doug., 48. 
 But it is otherwise under, the Statute of 1861 (p. 168). Morrissey v. 
 People, 11 Mich., 327. 
 
 1663. It seems that in a trial between other parties, the husband 
 cannot, save in a few exceptional cases, be permitted to testify to facts 
 which would subject his wife to imprisonment. People v. Horton, 4 
 Mich., 67. 
 
 1666. A child seven years of age is competent to testify ; the 
 question of his credibility is for the jury. Waahburn v. People, 10 Mich., 
 372. 
 
 4. Examination of Witnesses. 
 
 1667. Leading questions. An objection to a question that it 
 is leading must be taken before the question is answered. [MAumNa, 
 J.] Morrissey v. People, 11 Mich., 827. 
 
 1665. Trial for larceny. The question " WUl you state whether or 
 not in your judgment the samples (of cloth) now shown to you are off 
 the pieces that were stolen," is not objectionable as being leading. 
 [Maniokg, J.] Ibid. 
 
 1669. Objection to be stated. Where a question put to a wit- 
 ness is objected to, the reason for the objection should be stated, and 
 must appear by the bill of exceptions, or it cannot be presumed on 
 error that it was erroneously overruled. [Manhing, J.] Ibid. 
 
 1670. The party objecting should state the true ground of the objec- 
 tion ; and if that stated is untenable, the judgment should not be re- 
 versed on a new objection for the first time taken in a Court of review 
 if it is one that might have been obviated on the trial. [Manning, J.] 
 Tming v. Stepliena, 9 Mich., 500. 
 
 1671. An objection to papers as incompetent and irrelevant, does 
 not assail their genuineness, but impliedly admits it. Ibid. 
 
 1672. The defendant in an action of trespass, gave a notice with his 
 plea, setting up a certain judgment, and stating with great particularity 
 
 808 
 
EVIDENCE. § 1680 
 
 certain facts preliminary to the' issuing of execution thereon; and on 
 the trial he oftered to read the docket entry of the judgment ; to which 
 the plaintiff objected, because all the preliminary facts set forth in the 
 notice had not been proved. Held, that the objection should have spe- 
 cified the particular facts not proved ; and was properly overruled as 
 being too general. Bash v. Wliittiey, 4 Mich., 495. 
 
 1673. An objection by defendant to plaintiflF being sworn under the 
 statute, on the ground of incompetency to prove the facts to which he 
 offered to testify, was held a sufficient objection to the plaintiff's testi- 
 mony after being sworn. Morse v. Oongdon, 3 Hich., 549. 
 
 1674. Witness giving reasons for recollection. A wit- 
 ness may be allowed to state any reason or circumstance which induced 
 him to give particular attention to the facts observed by him, and to 
 which he has testified. AngeU v. Boseribury, 13 Mich., 341. 
 
 1675. But in giving the reasons for his recollection of a transaction, 
 he cannot be permitted to state facts inadmissible by the rules of evi- 
 dence, nor to relate his own conversation with other persons, containing 
 reflections on the motives of another witness. McBride v. Cicotte, 4 
 Mich., 478. 
 
 1676. Refreshing recollection. In order to refresh the re- 
 collection of a witness, his attention may be called to his evidence on a 
 former trial, and counsel's minutes of the former testimony read for 
 the purpose. BeauUen v. Cieotte, 13 Mich., 459. 
 
 1677. Cross examination. A party has no right to cross ex- 
 amine witnesses upon facts and circumstances not connnected with the 
 matters stated in his examination in chief. People v. Morton, 4 Mich., 
 67 ; Gampau v. Dewey, 9 Mich., 381. See Bcmn v. Oudney, 13 Mich., 
 239. 
 
 1678. The object of cross examination is to elicit the whole truth 
 concerning transactions which may be supposed to have been only par- 
 tially explained, and where the whole truth would present them in a 
 different light. GhcmcUeir v. AUison, 10 Mich., 460. See Thompson v. 
 Bichards, 14 Mich. 
 
 1679. Whenever an entire transaction is iiPissue, evidence which 
 conceals any part of it is defective ; and any question which fills up the 
 omissions of the witness is legitimate and proper on cross examination. 
 A party cannot glean out certain parts which alone would malse out a 
 false account, and save his own witness from the sifting process with- 
 out which these omissions cannot be detected. CharuUer v. AUison, 10 
 Mich., 460. 
 
 1680. Nor can one be compelled to malce his adversary's witness his 
 own to explain or fill up a transaction which the witness has partially 
 explained already. Ibid. 
 
 14 209 
 
g 1688 EVIDENCE. 
 
 1681. A party having testified on her direct examination that she 
 never sold or authorized the sale of certain property, may be properly 
 asked on cross examination questions with a view to show that she is 
 estopped by her conduct from setting up any claim to the property in 
 opposition to a sale made of it by another person. Bomn v. Cvdney, 13 
 Mich., 239. 
 
 1682. Adultery by a party being in issue, and evidence having been 
 given to establish it, the alleged partieeps erimims was called to disprove 
 it, and denied its commission. He was asked on cross examination, if 
 he had not stated, the year before the alleged offense, that he had had 
 illicit intercourse with the party charged. Held that the inquiry was 
 outside the issue, and it was error to allow it to be put. Dunn c. Dunn, 
 11 Mich., 284. See Fisher v. Hood, 14 Mich. 
 
 1683. Where evidence is ruled out as not proper on cross examina- 
 tion, the correctness of the ruling wiU not be inquired into on error, 
 where it appears thatthe witness is afterwards called by the party offer- 
 ing the evidence, and examined fully on the subject. DiCLin v. Piople, 8 
 Mich., 357. 
 
 1684. Re-examination. A witness on the probate of a wUl 
 testified on his cross examination that, some years before, he had a con- 
 versation with the deceased ; but he gave no part of the conversation, 
 and it did not appear to have had any bearing on the case. Held not 
 competent for the other party, on re-examination, to inquire what was 
 said by the deceased on that occasion. Beaidnen v. Cicotte, 12 Mich., 
 459. 
 
 1685. Refsalling 'witness. It is discretionary with the Court to 
 allow the plaintiff, after his rebutting evidence is closed, to recall one of ' 
 his own witnesses to give evidence which would have been proper 
 when the witness was on the stand before. WTiite v. Bailey, 10 Mich., 
 155. 
 
 5. Impeachment op WrrNESSES. 
 
 1686. Oeneral repntation. A witness who has testified that 
 he does not know the reputation of a prior witness for truth and veracity, 
 cannot be asked the further question whether he had heard people ac- 
 quainted with him speak of his character. Webber v. Sdnke, 4 Mich., 
 198. 
 
 1687. The same witness testified that he knew the prior witness " in 
 the old country," and that he had resided in this country about five 
 years. Held not competent to ask him if he knew the reputation pf the 
 prior witness, for truth and veracity, in the old country. Ibid. 
 
 1688. Where a witness called for the purpose of impeaching an- 
 other, testifies to his bad reputation for truth, and upon cross examina- 
 
 210 
 
EVIDBNCB, § 1698 
 
 tion gives the name of a person he has heard speak against him, he may 
 then be required to state what was said by such person. Annis v. Peo- 
 ple, 13 Mich., 511. 
 
 1689. Nothing short of a cross examination which compels th« im- 
 peaching witness to state the sources of the reports, and their nature, 
 will enable the party either to test the correctness of the impeaching 
 evidence, or to protect the witness who is assailed, if assailed unjustly. 
 Ibid. 
 
 1690. Contradictory statements. The testimony of a wit- 
 ness as to the nature of a certain message being somewhat contradic- 
 tory, it was held proper, on cross examination, to call his attention to 
 his testimony on a former trial, and to ask him if he did not then state 
 that a particular message was brought. Bemibien «. Oicotte, 13 Mich., 
 459. 
 
 1691. And where a witness had testified to the due execution of a 
 will by a competent testator, it was held competent by way of impeach- 
 ment to give evidence of his statement at another time that the will was 
 not worth the snap of his fingers. Ibid. 
 
 1692. Before the credit of a witness can be impeached by proof of 
 inconsistency in his statements, a foundation must be laid by question- 
 ing him as to his former statements, that he may have an opportunity 
 for explanation. The practice is the same in chancery as at law. Scm- 
 yer v. Saioyer, Wal. Ch., 48. 
 
 1693. He must not only be inquired of as to the statements, but the 
 time, place and person involved in the supposed contradiction. Smith 
 V. People, 3 Mich., 415. 
 
 1694. If on being properly questioned the witness neither admits 
 nor denies having made the conflicting statement, and says he does not 
 recollect having done so, he may stiU be impeached by showing that he 
 did make it. IWd. 
 
 1695. So also, where he says he does not recollect making the state- 
 ment, but if he did it was false. Ibid. 
 
 1696. A witness questioned about immaterial matters cannot be im- 
 peached by proof of contradictory statements in regard to them. Dunn 
 V. Dunn, 11 Mich., 284. See FisTwr v. Hood, 14 Mich. 
 
 1697. Uncandld statements. A question to a witness, whether 
 he did not, on a former trial, testify that he said yes and no, and played 
 good Lord and good devil, because he did not know into wiose hands he 
 might fall, is admissible, as going directly to his fairness and candor. 
 B&tubien v. Cicotte, 12 Mich., 459. 
 
 169S. Party maKing the Tritness his oivn. Where defen- 
 dant, after plaintiff has closed his case, recalls one of plaintifi's witnesses 
 and proves by him facts material to the defense, he has thereby made 
 
 811 
 
§1708 '. ,.. EVIDENCE. 
 
 the witness his own, and he cannot afterwards be allowed to impeach 
 him, unless he was a witness he was compelled to call — ^like the sub- 
 scribing witness to an instrument — or he was surprised, or Induced to 
 call the witness by statements previously made by him differing from 
 the testimony given. Craig v. Grcmt, 6 Mich., 447. 
 
 6. Admissions and Dbclabations. 
 
 1699. Construction of. Where a defendant admitted the re- 
 ceipt by himself of one of two certain amounts, from the plaintiff's in- 
 testate, but omitted on the trial to show which, it was held proper to 
 charge him with the larger simi. Bigdovi v. Paton, 4 Mich., 170. 
 
 1700. When made for the purposes of a trial, they will be construed 
 as the parties must have understood them at the time. As an admission 
 on the trial of an ejectment suit that defendant is in possession, will be 
 held to refer to the time the suit was brought, instead of the time of 
 trial. Wright v. Dunham, 13 Mich., 414. 
 
 1701. Contracts. The admission of a policy of insurance in a 
 premium note, is sufScient evidence of the policy in a suit on the note. 
 Wa/y V. BUliTige, 3 Mich., 397. 
 
 1702. An invalid agreement may be used as a parol admission of the 
 facts recited in it, and open to explanation and contradiction as such. 
 nieJcey v. Hinsdale, 12 Mich., 99. 
 
 1703. A written contract is not to be varied by the parol admission 
 of the party. Hunt v. Thfm, 2 Mich., 213. 
 
 1704. Where by a written contract defendant promised plaintiff to 
 pay a third person a sum therein recited to be due to him ftom the 
 plaintiff, it was held not necessary, in a suit on the contract, to give 
 other proof that plaintiff was so indebted. Tefft v. McNoah, 9 Mich., 
 201. 
 
 1705. Conclusions of law. Admissions of parties as to con- 
 clusions of law cannot bind the Court. Riee v. Buddiman, 10 Mich., 
 125. 
 
 1706. Admission by claim. If both parties in ejectment claim 
 through deeds which refer to a plat as recorded, the claim must be re- 
 garded as an admission of the plat, and of its being recorded, if a record 
 is necessary. Johnstone v. Scott, 11 Mich., 282. 
 
 1707. Where the defendant in ejectment undertakes to establish title 
 in himself derived from the same person through whom the plaintiff 
 claims, and sets up no other right in himself, it seems that he must be 
 regarded as admitting the title of the person through whom he thus 
 claims. Ibid. And see Salisbury v. Miller, 14 Mich. 
 
 1708. By nominal plaintiff. Action on promissory note in 
 tjie name of the payee. Held competent to prove the admission of the 
 
 212 
 
EVIDBNCB. § 1714 
 
 plaintiff that he did not own the note, and did not know who did ; that 
 it was given for money won at cards by a third person, and made pay- 
 able to him without his Isnowledge or consent. Eogan, v. Sherman, 5 
 Mich. 60. 
 
 1709. Where one party has voluntarily made his trustee or agent the 
 ostensible principal, and the only one capable of legal action, he will T»b 
 bound by the admissions of such trustee or agent. Ibid. 
 
 1710. Where action is brought ,in the name of one person for thfe 
 benefit, as is claimed, of a bona flde assignee, the question whether there 
 has been a bona flde assignment is not for the Court, but the jury ; and 
 the admissions of the nominal plaintiff cannot therefore be excluded on 
 the assumption that such assignment has been established by the evi- 
 dence. Ibid. 
 
 1711. Under Prohibitory Uquor Law^, Plaintiff pre- 
 sented to defendant an account, for what purported to be foreign wines 
 and ales, opposite each item of which were added the words " imported 
 and sold in the original packages ;" and defendant admitted the correct- 
 ness of the account. Held that this was not such " positive proof" that 
 they were "imported under the laws of the United States, and in accord- 
 ance therewith, and contained in the original packages in which they 
 were imported, and in quantities not less than the laws of the United 
 States prescribe, " as is required by the Prohibitory Liquor Law to en- 
 title the seller to recover therefor. Ifilea v. Rhodes, 7 Mich., 874 
 
 1712. Br former holder to show amount due on 
 note. In a suit upon a promissory note which the plaintiff in interest 
 had purchased at a receiver's sale, evidence on the part of defendant to 
 show what was stated at the time of the sale to be due on the note, iB 
 not admissible when not offered in connection with proof of some pay- 
 ment made to the receiver, and for the purpose of showing such pay- 
 ment. Newberry v. Trowbridge, 13 Mich., 263. 
 
 1713. To disprove irarranty. The vendee of a steam engine 
 which proved of little or no value, defended a suit for the purchase 
 price, claiming that he bought with warranty, and relying upon state- 
 ments of the vendor at the time of the sale to establish the warranty. 
 But it appeared that after the engine had been thoroughly tested and 
 proved a failure, he had written letters to the vendor from time to time, 
 apologizing for not having paid for the engine as he had agreed, and 
 asking more time ; in none of which was any allusion made to a war- 
 ranty, or claim set up to damages. Held that these letters satisfactorily 
 negatived any idea that the statements of the vendor at the sale were 
 regarded as a warranty. Deiuil v. Siggins, 9 Mich., 223. 
 
 1714. By one of several parties. The admissions of one of 
 several parties on the same side are admissible against him, but not evi- 
 
 213 
 
$ 1733 EVIDENCE. 
 
 dence to affect the others, unless there is some joint interest or privity 
 of design between them. Damon v. BaU, 3 Mich., 390. And where the 
 interest is joint, if the effect of the admission is to create an obligation — 
 as, for example, where it is an admission that a condition precedent has 
 been performed — ^it is evidence only against the party making it. 
 Thompson v. Bicha/rds, 14 Mich. 
 
 1715. Ilu8l>and and wife. The declarations of husband and 
 wife are subject to the same rules of exclusion which govern their testi- 
 mony as witnesses. Dawson v. SaU, 3 Mich., 390. 
 
 171S. The wife caimot be bound by the admissions of the husband 
 as to her own property. Ibid; Glover v. Alcott, 11 Mich., 470. 
 
 1717. Where defendants are sued in trespass by the husband for the 
 taking of personal property which is proved to belong to the wife, de- 
 fendants are entitled to prove her request to them to remove the pro- 
 perty from plaintiffs possession. Starkioeather «. Smith, 6 Mich., 377. 
 
 1718. By agent. The declaration of an agent, made at the time 
 of doing an act within the scope of his authority, and relating to the sub- 
 ject matter of the act, are evidence, as a part of the res gestm ; but state- 
 ments subsequently made by him stand on the same footing with the 
 declarations of other persons. Benedict v. Denton, Wal. Ch., 336. See 
 also, Homer ®. FMows, 1 Doug., 51 ; Oonverse v. Blum/rick, 14 Mich. 
 
 1719. The acts and declarations of one who assumes to be acting as 
 the agent of another are not evidence against the supposed principal 
 until the fact of agency is established by other evidence. Hoick v. 
 Sguier, 11 Mich., 185. 
 
 1730. By partner. The acts and declarations of a partner ac- 
 tnally engaged in a venture in his own name, cannot be proved for 
 the purpose of fixing a liability upon the partnership in respect to such 
 venture. Lochwood v. Beckwith, 6 Mich., 168. 
 
 1731. By party since deceased. The declarations of a per- 
 son since deceased cannot be made evidence on behalf of his represen- 
 tatives, any more than on his own behalf while living. Wilson «. WU- 
 son, 6 Mich., 9 ; Jones v. Tyler, 6;Mich, 364 But a bill filed and sworn 
 to by a person who is deceased, is evidence against his heirs to prove 
 what might be proved by his declarations. Chipman v. Thompson, WaL 
 Ch., 405. 
 
 vrm. To Identify property. Replevin for certain barrels of 
 apples. Defendant claimed a part of them. It became a question 
 whether these could be distinguished from the rest ; and the question of 
 title was also material. On the trial, the defendant being a witness, it 
 was held competent for him to testify that when the apples were reple- 
 vied his agent pointed out certain barrels, and stated that they were the 
 ones purchased by defendant. The evidence was competent, not to es- 
 214 
 
EVIDENCE. § 1731 
 
 tablish title, but as tending to show whether there was such a confusion 
 of goods that the officer was justifiable in taking possession of more ap- 
 ples than belonged to the plaintiflEs. Sleight v. Henning, 12 Mich., 371. 
 
 1723. Admissions by pleadings. The admissions in a bill or 
 answer in chancery, to be conclusive on the party making them, must be 
 full and unequivocal. They must not be Inferred from other admissions, 
 unless the express admissions are so closely connected with the one to 
 be inferred that to disprove the latter would disprove the former. 
 Sehwarz v. Sears, Wal. Ch., 19. 
 
 7. EXPEKTS AND OPINIDNS. 
 
 1724. WTien opinions incompetent. Quere, whether wit- 
 nesses can be allowed to state their views as to the materiality of facts 
 withheld from insurers at the time of the execution of the policy. SUl 
 V. Lafayette Insurance Co., 2 Mich., 476. 
 
 1725. Amedical witness having testified to seeing the (Jecedent some 
 two or three months before the making of a will in controversy, was 
 asked, " From what you saw, what was his mental capacity ?" A.s this 
 question must be understood as referring to the mental capacity to make 
 a will, it is incompetent, because presenting a question of law, and not 
 of medical science. [Manning, J.] W7iite v. Bailey, 10 Mich., 155. 
 
 1726. Only experts can be allowed to testify to their opinions, 
 baaed upon the testimony they may have heard in a cause, and then 
 only upon a matter of skill. Daniels v. Kosher, 2 Mich., 183. 
 
 1727. Opinions by otbers tban experts. Where a wit- 
 ness proved to have been acquainted with pieces of cloth which had been 
 stolen, was shown samples, and asked if in his judgment they were off 
 the stolen pieces, the question was held not to be objectionable on the 
 ground of the witness not being shown to be an expert. Morrissey -b. 
 People, 11 Mich., 327. 
 
 1728. The cases considered in which the opinions of witnesses, other 
 than experts, maybe given in evidence. Evans v. Peo^, 12 Mich., 27 ; 
 BeatMen v. Cicotte, 12 Mich., 459. 
 
 1729. "Whether any sickness exists in a particular locality is not 
 a question requiring the testimony of experts. Evans v. People, 12 Mich., 
 27. 
 
 1730. There is nothing in the nature of inquiries concerning mental 
 'capacity which requires juries to be informed, of necessity, by other than 
 
 ordinary witnesses. Beauiien v. Cicotte, 12 Mich., 459. 
 
 1731. Therefore in an inquiry concerning mental capacity to per- 
 form a certain act, witnesses who are not experts may testify to their 
 opinions upon the question in controversy, based upon their own obser- 
 vations. Ibid. 
 
 315 
 
§ 1740 EVIDENCE. 
 
 1732. It is proper to put the question to the 'witness in such a way 
 as to call for his opinion upon capacity with reference, as near as may 
 be, to the very act in dispute. Ibid. 
 
 1733. Accordingly on a question of capacity to execute a will, it was 
 held proper to ask a witness who had seen and conversed with the de- 
 cedent near the time of executing the instrument, whether, from the 
 conversation then had, or from what the witness then saw, the decedent 
 was capable of comprehending or understanding a document of any con- 
 siderable length, if it had been read to hirn. Ibid. 
 
 1734. Also what capacity the decedent had at the time to understand 
 business matters, and whether he was then capable of holding a conver- 
 sation like one testified to by another witness. Ibid. 
 
 1735. Opinions must be based on facts. Keitber medical 
 experts nor other witnesses can be allowed in any case to give an opin- 
 ion upon mental capacity or condition, without first showing the circum- 
 stances and facts upon which the opinion is based. White v. Bailey, 10 
 Mich., 155. 
 
 8. Hbabsay and Reputation, 
 
 1736. General hearsay and public reputation are inadmissible to 
 prove which of two persons claiming by the same name a particular 
 grant or reservation by a treaty was the person intended. But what 
 was said at the time of the treaty, by the parties to it, indicating for 
 whose benefit the grant was intended to be made, is admissible as a part 
 ot the res gestcB. Stockton v. WUliams, 1 Doxig., 546, modifying decision 
 in same case, Wal. Ch., 120. See to the same point, Campau v. Dewey, 
 9 Mich., 381. 
 
 1737. An Indian child six years of age at the date of a treaty claimed 
 land under it. A witness was called to prove that for seven years after 
 the treaty he heard no claim made by the band to which the child be- 
 longed that any reservations were made for Indians of full blood. Held 
 that the evidence was not competent, since neither the neglect of others 
 to make the claim, nor of the child herself at that age, could affect her 
 claim. Campau d. Dewey, 9 Mich., 381. 
 
 173§. Executors cannot prove their office by general reputation in 
 an action brought by them. MidcUesieorth v. Nixon, 2 Mich., 425. 
 
 1739. What a witness has heard post litem motam—hy which is meant 
 since the dispute has arisen, and not merely the commencement of suit, 
 — is not evidence. Stockton v. Williams, Wal. Ch., 130. 
 
 9. Res GBST.ffl and Relevancy Generally. 
 
 1740. Circumstances attending contract. Where there 
 was a want of certainty in a written instrument, and it was not clear 
 
 216 
 
EVIDENCE. § 1748 
 
 from its tenns whether the undertaking of defendants contained in it 
 was to the plaintiffs or to third persons named, parol evidence of the 
 circumstances attending it was held admissible, not to contradict the 
 writing, but to aid the Court in giving a true construction to it. Fatey 
 V. Otis, 11 Mich., 318. See also JTomss. STwwerman, 2 Doug., 16 ; Ives 
 v.Kimbatt, 1 Mich., 308. 
 
 1741. Circumstances attending a ivlil. Where a will is 
 contested on the ground of fraud or undue influence, a very broad in- 
 quiry is permitted into the whole chain of circumstances attending its 
 preparation ; and the transaction must be deemed to embrace all the im- 
 mediate preliminaries. Beavbien ». Oieotte, 12 Mich., 450. 
 
 1743. Undue influence being charged against the wife, statements of 
 the decedent that he regretted the marriage ; that he was not master nt 
 home J that he was afraid of his wife, and was compelled to submit to 
 her demands, or otherwise there would be trouble in the house, were 
 held admissible in evidence. Ibid. 
 
 1743. The will disinheriting the decedent's relatives in favor of the 
 wife and her relatives, it was held competent to prove the wife's abuse 
 of the husband's relatives, and her quarrel with him about a former will 
 by which he had made provision for them. A wide range of inquiry 
 into the family relations, and the terms upon which they lived, is 
 allowable in these cases. Ibid. 
 
 1744. Evidence that the decedent made no complaint of any impor- 
 tunities on the part of his relatives is also admissible, where it appears 
 that the wife made charges to him of their rapacity. Ibid. 
 
 1745. Evidence of former wills, and of other pecuniary arrange- 
 ments for the wife, is also admissible, as having a bearing upon the 
 question whether the decedent has understandingly, and of his own 
 free will, changed his settled views. Ibid. 
 
 1746. Declarations made by a party subsequent to a transac- 
 tion, as to his motives or intentions at the time, are not receivable 
 in evidence to affect the rights of others. It is only the intention de- 
 clared at the time which, as a part of the res gestae, can bind or affect 
 others. Dawson v. HaU, 2 Mich., 390. See supra 1736. 
 
 1747. The exception to the rule is where the statements are made to 
 the party to be affected, under circumstances from which his acquies- 
 cence in their truth can fairly be inferred ; and then the degree of con- 
 sideration to which they are entitled depends on the circumstances 
 under which they are made. Ibid. 
 
 1748. Trial for murder. Evidence was given by the prosecution 
 which indicated strong mental agitation and excitement on the part of 
 the prisoner, with an attempt to conceal it, near the supposed time of 
 the murder. Held competent for the prisoner to prove the conversa- 
 
 217 
 
§ 1756 EVIDENCE. 
 
 tion had by him at the time, as bearing upon the question of his mental 
 agitation and excitement, and tending to disprove the excitement, or to 
 show its nature and extent. DiUin v. People, 8 Mich., 357. 
 
 1749. Corroborating facts. Wherever a witness has testified 
 to a fact or transaction which, standing alone and entirely unconnected 
 with anything which led to or brought it about, would appear in any 
 degree unnatural or improbable in itself, the previous facts which led 
 to it are admissible, since without them it would be impossible for the 
 jury properly to appreciate the testimony in reference to such principal 
 transaction. People v. Jenness, 5 Mich., 305. 
 
 1750. This rule is especially applicable where the principal transac- 
 tion in question is unlawful intercourse between the sexes. Ibid. 
 
 1751. Letter referred to by another. Where a letter is 
 put in evidence, the letter to which that is an answer, and which is 
 referred to in it, is proper evidence. Zegter v. Svtton, 7 Mich., 329. 
 
 1752. Tbe relevancy of evidence depends on the issue to be 
 tried. A will disinheriting the testator's children being contested for 
 fraud, it is competent for the propounder to put in evidence all those 
 facts which might have contributed to alienate the testator's feelings 
 from his children, as such a state of mind would furnish a motive for 
 giving his property to another, and tend to repel the suspicion of undue 
 influence. White v. Bailey, 10 Mich., 155. 
 
 1753. Plaintiff's claimed property under a chattel mortgage, and de- 
 fendants claimed to hold it under attachments against the mortgagors. 
 The evidence tended to show that there was no manual delivery of the 
 mortgage to plaintiffs — who lived in another State — ^but that the mort- 
 gagors were indebted to the plaintiffs in more than its amount. Held 
 competent for the plaintiffs to put in evidence a letter from the mort- 
 gagors, written some time before the levy of attachments, informing 
 them of the execution of the mortgage. The letter would tend in some 
 degree to prove that the true intent of the mortgage was to secure an 
 actual indebtedness, and not to make a mere cover of the transaction. 
 Sweetzer v. Mead, 5 Mich., 107. 
 
 1754. To the statements of a witness which were not properly ad- 
 missible in the cause, contradictory evidence was given by the opposite 
 side ; evidence corroborative of the statements of such first witness is 
 equally inadmissible, though offered as rebutting merely to such contra- 
 dictory evidence. Me Bride v. Cicotte, 4 Mich., 478. 
 
 1755. Where two plaintiffs sue upon contract, a letter from defend- 
 ants to one of them, which is claimed to relate to such contract, is 
 relevant if followed up by evidence showing it does relate to such con- 
 tract. Shmo V. Davis, 7 Mich., 318. 
 
 1756. A builder's contract is irrelevant to a suit brought by him for 
 
 218 
 
EVIDENCE. § 1763 
 
 extra work which in no way depends upon the contract ; and the inci- 
 dental mention of the contract by one of his witnesses does not make 
 it necessary to produce it. Webber v. Eanke, 4 Mich., 198. 
 
 1757. A witness for- the prisoner was examined as to the prisoner 
 being present and transacting business near the scene of the alleged 
 murder, and near the time when it was claimed to have been com- 
 mitted; and it was held not improper to permit the prosecution to 
 show, on his cross examination, any facts having a tendency to show 
 from which direction the prisoner came to that place ; as that the wit- 
 ness went out and found tracks which, at the time, he believed and 
 stated were the prisoner's, coming towards the place; and the like. 
 Dillin 0. People, 8 Mich., 357. 
 
 1758. It is competent for a Court to admit evidence which will not 
 be relevant unless brought home to the prisoner by further proof. 
 But if such further proof is not given, it is error in the Court to 
 refuse to strike out the evidence. Ibid. 
 
 1759. Showing relevancy. To make a question, in itself 
 apparently irrelevant, proper to be put as a link in a chain of evidence, 
 it must be accompanied by a proposition to follow it up at the proper 
 time by proof of other facts which, if true, would make the question 
 put legitimately operative. Wyngert v. Norton, 4 Mich., 286. 
 
 1760. Res Inter alios. Ejectment for land reserved by the 
 treaty of Saginaw of 1819, by the force of which the title itself passed 
 and required no patent. Proof of a subsequent act of Congress and pro- 
 ceedings taken under the same to identify the reservee, held incompe- 
 tent, as by the treaty itself the title was placed beyond the control of 
 federal legislation. Campau o. Dewey, 9 Mich., 381. 
 
 10. Pabol Evidbnce to Affect Wbitings ob Recokds. 
 
 I [1761. General rule. Parol evidence will not be received to add 
 to or vary the terms of a written instrument. It may be introduced in 
 chancery for the purpose of showing fraud, or a mistake in drawing the 
 instrument, when the fraud or mistake is set forth in the biU, and the 
 relief asked is based upon it; but not otherwise. SutherlaTid v. Crane, 
 Wal. Ch., 533. 
 
 1763. Where a chattel mortgage is given by one member of a 
 partnership in his own name, and there is nothing on its face to indi- 
 cate that it was intended to secure a partnership debt on partnership 
 property, parol evidence is inadmissible to show that it was the part- 
 nership mortgage and not that of the person executing it. Jones v. 
 Phelps, 5 Mich., 218. 
 
 1763. And in equity a mortgage of land%^ purporting to secure a 
 sum of money, cannot be shown by parol to have been given to 
 
 219 
 
§ 1772 EVIDENCE. 
 
 secure not the payment of money, but the perfonnance of a parol 
 agreement for the paymeitt of certain debts of the mortgagee, and to 
 aid in his support.^ Adair ». Adair, 5 Mich., 204. 
 
 1764. Bill of Sale. A simple bill of sale does not embody the 
 preliminaries nor the essential terms of a contract, in such a way as to 
 exclude parol evidence. It is designed merely to show the transfer of 
 title. Pieard v. McCormick, 11 Mich., 68. 
 
 1765. And it may be shown by parol, notwithstanding a receipted 
 bill of parcels, that the property mentioned therein was not to be deliv- 
 ered until paid for in the manner verbally agreed upon at the time of 
 the sale. Bowe v. WrigJU, 12 Mich., 289. 
 
 1766. A blU of sale of personal property, though absolute on its 
 fiice, may at law be shown to have been given as a mortgage. FvMer 
 «. Parish, 3 Mich., 211. And in equity a deed of lands, absolute in 
 form, may be shown to be a mortgage. Wadaworth v. Loranger, Har. 
 Ch., 113 ; Emerson v. Atwater, 7 Mich., 12. 
 
 1767. Impeacbing: patent. A patent of lands from the United 
 States cannot be impeached in an action at law, on the ground of fraud 
 or mistake in any of the •proceedings required as prerequisites to its 
 issuing, by one claiming under a subsequent grant. Bntckner's Lessee 
 V. Lawrence, 1 Doug., 19. 
 
 176S. But where a patent was issued to one as the person to whom 
 lands were reserved in a treaty with a tribe of Indians, it is competent 
 for another claimant to show that the patentee is not the person 
 intended, and that such claimant is. Stockton v. WiUiams, WaL Ch., 
 120, and 1 Doug., 546 ; Oampau v. Dewey, 9 Mich., 381. 
 
 1769. Identifying landi. In ejectment for lands described as 
 " a certain lot according to the plat of the village of Portsmouth," the 
 identity of the lands may be proved by persons acquainted with it, 
 without the production of the recorded plat Johnstone s. Scott, 11 
 Mich., 232. 
 
 1770. If the plat be actually, though not legally, recorded, it may be 
 used for the purpose of identifying lands described in deeds referring 
 to it. lUd. 
 
 1771. Parol evidence of the circumstances surrounding the giving of 
 a deed, and collateral facts, may be received to show which of two sec- 
 tions coming within the terms of a grant was intended by the grantor. 
 Iws V. Kimball, 1 Mich., 308. See supra 1740. 
 
 1773. Where the boundary of the land was described by course and 
 distance terminating at a post, and neither any mark indicating such 
 boundary, nor any post indicating its termination can be found on the 
 land, and no evidence jras introduced showing where the post was 
 originally placed; parol evidence that a line found marked upon 
 220 
 
EVIDENCE. § 1780 
 
 trees variant from the call in the patent, and not indicated by the mon- 
 uments called for in the patent, was the actual line surveyed, run and 
 marked as such boundary, by the government surveyor, is inadmissi- 
 ble. Bruckner's Lessee v. Lawrence, 1 Doug., 19. And see Mo<yre v. 
 People, a Doug., 420. 
 
 1773. Disproving delivery. A member of a bankrupt part- 
 nership having executed a written acknowledgment to one of the 
 creditors, of a debt discharged by the bankruptcy, it was held compe- 
 tent to show, when suit was brought for the demand, that the acknowl- 
 edgment was avowedly obtained by the plaintiff and executed to him 
 to facilitate proof of the demand against the estate in bankruptcy; and 
 not with a view to revive the demand. Such evidence would show 
 that the paper was never delivered to have effect as a contract. Atwood 
 V. GiOett, 2 Doug., 206. 
 
 1774. OiBclal cbaracter may be proved by parol. Scott v. 
 Detroit Toung MerCs Society's Lessee, 1 Doug., 119. See also CahiUv. 
 Kalamazoo Mutual Insurance Co.,, 2 Doug., 124. 
 
 1775. But a conveyance by the Governor and Judges of Mich- 
 igan Territory can neither be proved by parol, nor by resolution passed 
 by them. Scott v. Detroit Young Men's Society's Lessee, 1 Doug., 119. And 
 where one has agreed to execute and deliver a deed of certain lands 
 as a condition precedent to the performance of a contract by the other 
 party, he cannot prove the execution and delivery by the admission of 
 such other party, without first calling upon him to produce the deed. 
 Thompson v. Bicha/rds, 14 Mich. 
 
 1776. Proof of custom. Where parties entered into a special 
 contract for digging a ditch, the terms of which were clear and explicit, 
 it was held that no rule adopted by surveyors or civil engineers, and no 
 custom of the country in relation to digging ditches from point to point 
 over low and uneven land, could be introduced in proof to vary the 
 terms of the contract. Haroey v. Cody, 3 Mich., 431. See also, Urmn v. 
 Clark, 13 Mich., 10. 
 
 1777. But proof of custom is allowable to establish the meaning in a 
 contract of a word of doubtful signification. Bancroft v. Peters, 4 Mich., 
 619. 
 
 177§. Contradicting record. When a Court of record has 
 jurisdiction, no proof can be given in opposition to the record. And U 
 semis that this rule applies to the docket of a justice. Clwrk v. Ebhnes, 
 1 Doug., 390. 
 
 1779. But the record of an inferior Court may be contradicted for 
 the purpose of showing a want of jurisdiction of the person or of the 
 subject matter. Ibid. 
 
 1780. The record of a judgment rendered in a Court of record of 
 
§ 1787 EVIDENCE. 
 
 another State, cannot be impeached when sued upon here, by showing, 
 in opposition to its recitals, that process was not served upon defend- 
 ant. WUeox v. Kaaaiek, 2 Mich., 165. 
 
 1781. Parol evidence of the existence of certain marked trees and 
 monuments not called for in the survey of a road, is inadmissible to 
 establish, by those marks and monuments, a line of the road variant 
 from that called for by the courses and distances, by which alone such 
 line is designated in the survey. Moore t. Peojj^, 2 Doug., 420. See to 
 the same eflect, Bruckner's Lessee v. Lwurrenee, 1 Doug., 19. 
 
 1782. "Where a justice in pursuance of the statute (Comp. L., § 
 3893) certifies a transcript of a judgment from the docket of a former 
 justice, which he certifies is in his control, full credit will be given to 
 such certificate, and it will be presumed that the docket is legally in his 
 possession. In a suit upon the judgment, the docket entry of the 
 Justice, that the defendant appeared and pleaded in such action, cannot 
 be disproved. FoMy v. FtiM&r, 13 Mich., 527. 
 
 11. Proof of Becokds. 
 
 1783. To be proved as a whole. The survey of a road 
 from its commencement to its termination, is an entire thing ; and a 
 part of the record of such survey, giving the course and distance across 
 a particular section only, cannot be read in evidence without permitting 
 the whole record of the survey to go to the jury. Moore v. People, 2 
 Doug., 420. 
 
 1784. In a suit involving the title to lands which are claimed by one 
 party under proceedings in chancery, it is incumbent on the party set- 
 ting up those proceedings to give in evidence the whole enrolled record, 
 or at least all those parts of it which have a bearing on the question 
 whether the proceedings as a whole divested the title of the former 
 owners. Piatt v. Stewart, 10 Mich., 260. 
 
 1785. The deposition of a register of deeds as to the contents of 
 deeds recorded in his office, without giving copies thereof, is inadmissi- 
 ble. And where the purpose for which the evidence is oflfered is col- 
 lateral to the issue, the rule is still the same. AngeR «. Bosenbury, 12 
 Mich., 241. 
 
 1786. Record not required by la^r. A book of township 
 plats, found in the office of the register of deeds, is not evidence, where 
 there is no law requiring it to be kept or declaring it to be evidence. 
 Smith V. Lawrence, 12 Mich., 431. 
 
 1787. Supplying omissions. Where the entry on a justice's 
 docket does not show the time summons was served, and the files ar« 
 lost, the time of service may be proved by the justice — the statute not 
 requiring the time to be entered on the docket. Van Vleet o. Eggleston, 
 7 Mich., 511. 
 
EVIDENCE. § 1799 
 
 17S8. Tax sales book. A book kept by a county treasurer, 
 containing his entries of tax sales, though not distinctly required by 
 any statute to be kept, yet being necessary to the adequate discharge of 
 his duties, is an official book, and admissible in evidence to prove the 
 facts therein stated. Oroesbeck v. Beeley, 13 Mich., 329. 
 
 17§9. Ijost patent. A government patent of land being lost, a 
 copy of the record thereof from the General Land Office, properly cer- 
 tified by the Commissioner, is evidence. The laws of the United States 
 govern the case, and not the State statute. Lctcey v. Davis, 4 Mich., 140. 
 
 1790. Parol evidence cannot be given to prove a public docu- 
 ment, on the ground simply that the document belongs in a public office 
 and cannot be removed. People v. Lambert, 5 Mich., 349. 
 
 1791. Judgment liow proved. A judgment of the Circuit 
 Court is to be proved by the files and journal entries, which, under the 
 statute, are a substitute for a judgment record. NormU v. McHenry, 1 
 Mich., 237 ; Crane v. Hwrdy, 1 Mich., 56 ; Prentiss v. Holbrook, 2 Mich., 
 373. 
 
 1792. If the files have been lost, the calendar entries may be given 
 in evidence to show the steps taken in the cause before judgment. Nor- 
 veU V. McEenry, 1 Mich., 227. 
 
 1793. A warrant of attorney and plea of the defendant are evidence 
 in the same Court of the appearance of defendant in the suit in which 
 they are filed. Crane v. Hardy, 1 Mich., 56. 
 
 1794. The Court will take judicial notice of its own officers, but not 
 of those of another Court. SorveU v. McHenry, 1 Mich., 327. 
 
 1795. Liost indictment. Action on a recognizance. The indict- 
 ment, wUch the recognizance bound the principal to answer to, was 
 lost or destroyed, and it was held that parol evidence was admissible of 
 its contents. People v. Dennis, 4 Mich., 609. 
 
 1796. Printed reports of the State officers, printed by the State 
 printer under their direction, are evidence against such officers. People 
 V. McKinney, 10 Mich., 54. 
 
 1797. Decree in chancery. Journal entries and interlocu- 
 tory orders and decrees in chancery are to be considered as originals ; 
 and are admissible in evidence without producing the enrollment. Lo- 
 tkrop V. SoutTmcorth, 5 Mich. 436. 
 
 1798. Judgment not entered. After judgment is pronounced 
 by a justice of the peace, and before the proceedings are entered on his 
 docket, it is competent to prove the judgment by the oath of the justice 
 who produces for that purpose his minutes of the trial, which are as fuU 
 as the docket entries are required to be. Hickey v. Hinsdale, 8 Mich., 
 267. 
 
 1799. Foreign laws. The statute laws of other States and coun- 
 
 123 
 
§ 1809 EVIDENCE. 
 
 tries must be proved by copies, authenticated in some mode recognized 
 by law. PeopU v. Lambert, 5 Mich., 349. Laws regulating the rates of 
 interest are no exception to this rule. Kermott v. Ayer, 11 Mich., 181. 
 
 1800. One who had been a peace officer in another State, and who 
 did not swear to any general knowledge of the laws of that State, but 
 said he had, on account of a difficulty with bis wife, looked into those 
 laws, was held incompetent to testify what the written laws of that State 
 were on the subject of marriage. People v. Lambert, 5 Mich., 349. 
 
 12. Pkbsumptionb ksd JudiciaIj Noticb. 
 
 1801. Foreign law. The Court will presume the law of a sister 
 State to be the same as our own, unless the contrary is shown. Crane 
 V. Hcurdy, 1 Mich., 56. 
 
 1802. The common law, as in force in this- State, will be presumed 
 to prevail in a foreign country in the absence of proof to the contrary. 
 Higli, wppMant, 2 Doug., 515. 
 
 1803. But our local statutes cannot be presumed to have been 
 adopted elsewhere. And Courts .cannot, therefore, presume that the 
 rate of interest of a foreign country is the same as that established by 
 statute in Michigan. Kermott v. Ayer, 11 Mich., 181. See also, FeopU 
 V. Lambert, 5 Mich., 349. 
 
 1804. A security presumed sufficient until the contrary is 
 shown. Brown v. Chase, Wal. Ch., 43. 
 
 1805. Due execution of lost deed. The fact that a mortgage 
 for purchase money, given at the time the conveyance was made, was 
 executed with all proper formality, raises the presumption that the deed 
 (which was unrecorded and lost) was likewise properly executed. Ood- 
 froy V. Disbrow, Wal. Ch., 260. 
 
 1806. Identity of cause. A cause having been removed to 
 the Supreme Court by certiorari, an order made by the Supreme Court 
 dismissing a case of the same title, must be presumed to relate to the 
 same case. Howwrd v. BockweO,, 1 Doug., 315. 
 
 1807. Time of execution of guaranty. On the back of a 
 promissory note made! by B., was indorsed " I guaranty ;" which was 
 signed by W., but not dated. Held, that it must be presumed to have 
 been contemporaneous with the making of the note. Eiggim v. Waieon, 
 \ Mich., 428. 
 
 1808. Quorum of public body. Where the record of the 
 proceedings of a board of supervisors was offered in evidence, it was 
 held that a quorum of the body must be presumed to have been pres- 
 ent, though the record did not show the &ct. L(iBey v. Da/ais, 4 Mich., 
 WO. 
 
 1809. Settlement of accounts. A settlement of accounts 
 
 394 
 
EVIDENCE. § 1818 
 
 between parties is prima facie a settlement of aR accounts ; but the con- 
 trary may be shown. Bourke v. James, 4 Mich., 336. 
 
 1810. Tlolation of law. Sale of liquors in a tavern will not 
 be presumed, where by law there might be a license to keep tavern 
 without authority to sell liquors. 8avi&r v. Ghipmam, 1 Mich., 116. 
 
 1§11. Time when debt accrued. When there is no evi- 
 dence as to the time when an indebtedness accrued upon which a 
 judgment was rendered, it must be regarded as having accrued at the 
 date of the judgment. Olmer v. Aleott, 11 Mich., 470. 
 
 1812. Judicial notice. A Court will take judicial notice of its 
 own olflcers, but not of the officers of another Court. Norvdl v. Mo 
 Eenry, 1 Mich., 227. 
 
 1813. Chancery may take judicial notice of the terms of a Court of 
 law out of which an execution has issued, for the purpose of seeing 
 whether a levy was made during its lifetime. WiUiamB «. Hubhwrd, 1 
 Mich., 446. 
 
 1814. Judicial notice will be taken of an act organizing a township, 
 Ives V. Kimball, 1 Mich., 308. And of the political divisions of the State 
 generally. Wright ». Dwnham, 13 Mich., 414 
 
 1815. The Courts will take judicial notice that a part of St. Clair 
 river is beyond the State boundary. Oummrngs v. Stone, 18 Mich., 70, 
 
 1810. A township treasurer gave bond to " The People of the State 
 of Michigan," instead of to the township as required by law. It was 
 held that an action could not be brought on this bond in the name of 
 the township, notwithstanding an averment in the declaration that the 
 defendants " acknowledged themselves held and firmly bound unto the 
 plaintiff, by the name and description of the people of the State of 
 Michigan." The Court must take notice that the State and township 
 are separate political organizations, and the averment is therefore 
 inconsistent with the bond, which parol evidence cannot be received 
 to contradict. TovmsMp of La Orange v. Oliapman, 11 Mich., 499. 
 
 1817. The Courts must take judicial notice of public statutes, and 
 disregard all allegations in pleadings which are inconsistent with 
 them. PeojAe v. Biver Baisin and Lake Erie B. B. Co., 13 Mich., 889. 
 See Surlbut d. Britain, 2 Doug., 191. 
 
 1818. Courts are bound judicially to take notice what the law is ; 
 and to enable them to determine whether all the constitutional requi- 
 sites to the validity of a statute have been complied with, they can take 
 notice ofthejoumals of the legislature. But they have no such power 
 as respects the facts attending the election of the several members of the 
 legislature, even after those facts have been spread upon the legislative 
 journals. People v. Moiharuy, 13 Mich., 481. 
 
 15 125 
 
§ 1828 EVIDENCE. 
 
 13. Miscellaneous Matters. 
 
 1§19. Plaintiflfg evidence In reply. That wUch in a re- 
 plication would not be a departure in pleading, may be given in evi- 
 dence in reply to a defense und^r the general issue. OcUdweU v. Gale, 
 11 Mich., 77. 
 
 1§20. A collector's receipt for taxes is an official paper 
 which the law requires him to give, and it is therefore 'evidence of the 
 payment of the taxes in suits between third persons. Johnstone v. Scott, 
 11 Mich., 332. 
 
 1521. A deed the record of which is admissible in evidence, is also 
 itself admissible without preliminary proof. Comp. L., § 2750 ; iacey 
 V. Davis, 4 Mich., 140. 
 
 1522. But a deed is no evidence of title in the grantor, where he is 
 not otherwise connected with the title, or shown to have ever had pos- 
 session. Smith v. Lamrence, 12 Mich., 431. 
 
 1523. The recital of the consideration in a deed is not evidence of 
 the real consideration in a suit by the vendor to enforce in equity his 
 lien for the purchase price. Mowrey v. VancUing, 9 Mich., 39. 
 
 1824. Tbe seal of a corporation is itself prima facie evi- 
 dence that it was affixed by the proper authority. Benedict v. Denton, 
 Wal. Ch., 336. 
 
 1S25. Sale fixing value. An indorser having assigned a mort- 
 gage as collateral security to his debt, and the creditor having foreclosed 
 the mortgage and bid in the land for the amount of the debt, on an 
 agreement with such indorser that he should do so, and if the debt was 
 not paid within a period fixed, that the 'land should then be sold to sa- 
 tisfy it ; and a public sale having been made under this agreement, and 
 the land bid in by the creditor for a small sum, it was held that, in a suit 
 brought by him for the balance, the debtor could not show in bar, that 
 the lands at the time of the sale were worth the amount of the note. 
 Weed «, Snow,, 1 Mich., 128. See Smith v. MitchM, 12 Mich., 180. 
 
 1826. Statutory foreclosure. A sheriff's deed by itself is no 
 evidence of a regular and legal foreclosure of mortgage by advertisement 
 under the statute. Boumum v. Gmhairtt, 10 Mich., 338. 
 
 1827. Recital in 'writing;. An instrument purporting to be 
 an assignment of at certificate of purchase therein recited, although duly 
 proved, does not establish the existence of the certificate of purchase as 
 against persons not partiesv to it^ Lee v. Payne, 4 Mich., 106. 
 
 1828. Books of aecount. A party's own entries in his books 
 of account cannot be admitted as evidence in his behalf, unless a foun- 
 dation be first laid by proving that he had no clerk ; that some of the 
 articles charged have been delivered ; that the books produced are the 
 
EVIDENCE. § 1835 
 
 account books of the party containing original entries ; — and by further 
 proof by those who have dealt and settled accounts with him, that he 
 keeps fair and honest accounts. Jackson ®. Evans, 8 Mich., 476. 
 
 1829. The servant of a man dealing in brick, who keeps a tally- 
 book or slate upon which he keeps memoranda of sales during the day, 
 reporting them to his employer at night, who enters them upon his re- 
 gular account books, is not a derk within the meaning of this rule ; and 
 such regular account books are to be considered the books of original 
 entries. Ibid. 
 
 1§30. Where in charging the brick there was entered opposite each 
 charge of a load the name of the teamster who hauled it, these teamsters 
 should all be called to verify the charges, or their absence accounted for 
 before the books are received in evidence. Ibid. 
 
 1§31. It is not competent, in order to dispense with the necessity of 
 calling the teamsters, to prove by others that if called it would not be 
 possible for them to testify from recollection to the quantity hauled. 
 The main fact to be established is that the articles have been delivered ; 
 and it is only on failure to prove the delivery, or the quantity, by the 
 teamsters when called, that the books are received as the next best evi- 
 dence. The books are receivable on the presumption that no other 
 proof exists which has not been adduced. Ibid. 
 
 1833. The vritnesses to prove that the party keeps honest books 
 should be able to identify the books, and to testify to settlements made 
 from the entries on such books. It is not sufficient that they testify to 
 having made settlements from bills presented, which they found honest 
 without being able to testify whether such bills were from the account 
 books or not. Ibid. 
 
 1833. Secondary evidence : loss of note. In a suit on a 
 note alleged to have been lost, a witness stated that he had the entire care 
 of the notes belonging to the plaintiff ; that the pocket book containing 
 the note disappeared ; and that dUigent search was made for it without 
 success. He also stated that an individual was prosecuted criminally 
 for stealing the note, and confessed his guilt, and. stated what he had 
 done with the note. Held that the loss of the note was sufficiently 
 proved to allow parol evidence of its contents. Siggins «. Watson, 1 
 Mich., 428. 
 
 1 834.— subscribing -witness disqualifled. Where a party 
 brings suit before a justice of the peace, and in order to make out his 
 case it becomes necessary to prove the execution of a written instrument 
 to which the justice is the only subscribing witness, the disability of the 
 justice to be sworn is not a sufficient reason for admitting other proof of 
 the execution of the instrument. Jone8V..Phdps, 5 Mich., 318. 
 
 1835,— copy not objected. tOj Wiere. a.copy of a map is put 
 
 237 
 
8 1843 FENCES. 
 
 in eTidence without objection, any right to insist upon the production 
 of the original is thereby waived. Johnstone v. Scott, 11 Mich., 232. 
 
 1836. — trover for note. Where trover is brought for the con- 
 version of a promissory note, plaintiflf is entitled to prove its existence 
 and contents, without giving defendant notice to produce it. Bose v. 
 Lmis, 10 Mich., 483. 
 
 1S37. — a notice to quit may also be proved by parol, without 
 calling upon the defendant, upon whom it was served, to produce the ori- 
 ginal. FalkTier, v. Beers, 2 Doug., 117. 
 
 1§38. Burden of proof : te§tamentary capacity. The 
 burden of proof is upon the propounderof a will to show that at the 
 time of its execution the decedent was of sound mind. BeauMen v. Ci- 
 eotte, 8 Mich., 9. 
 
 1839.— breach of bond. "Where a bond other than for the pay- 
 ment of money is sued upon, and the plaintiff assigns a breach as the 
 statute requires, the burden of proving the breach rests upon him, not- 
 withstanding it may involve the proving of a negative. But the aame 
 clear proof is not necessary in such case aswhereproof of an affirmative 
 is required. Toung s. Stephens, 9 Mich., 500. 
 
 1840. Suit was brought upon a statutory bond conditioned that one 
 of the obligors should within thirty days apply for an assignment of his 
 property and a discharge as an insolvent, and diligently prosecute the 
 same until he procured his discharge. The plaintiflFgave in evidence a 
 petition for such discharge, dated on the thirtieth day, but so defective 
 as not to confer jurisdiction upon the officer to proceed upon it; also an 
 order made by the officer upon the petition, requiring creditors to ap- 
 pear. Held that this petition and order raised a presumption that no 
 proper application was made within the prescribed time. lUd. 
 
 1841. Contempts by '«ritnegse§. A witness committed until 
 he shall submit to answer, is entitled to be discharged when the proceed- 
 ing in which he was called as a witness is discontinued. [Manning, 
 J.] Matter of Hall, 10 Mich., 210. 
 
 1842. A magistrate having jurisdiction, under Ch., 194 of Comp. 
 L., to examine and commit for trial persons charged with crimes, has no 
 power to commit a witness for refusing to testify on such examination. 
 He has no powers except such as are expressly conferred by said chap- 
 ter. Matter of Famham, 8 Mich., 89. 
 
 FENCES. 
 
 1843. WTien required. The act of 1847— Comp. L., § 628— 
 providing that " no person shall recover for damages done upon lands 
 by beasts, unless in cases where, by the by laws of the township, beasts 
 128 
 
FIXTURES. . § 1850 
 
 are prohibited from running at large, except where such lands are en- 
 closed by a fence" four and a half feet high and in proper repair, or 
 something equivalent thereto, did not require individuals to fence their 
 lands, but only precluded recovery for damages done by beasts thereon 
 if not fenced. WMiamsv. Michigan C. B. B. Co., 2 Mich, 259; Wood v. 
 La Bue, 9 Mich., 158. See amendmentto this statute. Laws of 1861, p. 
 294. 
 
 1844, The cattle of other persons going upon such lands are wrong- 
 fully there, and the owner of the land may drive them oflf by any of the 
 ordinary means to which a prudent man would ordinarily resort. 
 Wood V. La Bue, 9 Mich., 158. 
 
 1843. Where a cow, under such circumstances, was injured by being 
 driven oflf by a dog set on by the owner of the land, it was held the 
 owner was not liable for the injury, unless there was something in the 
 size, character or habits of the dog, or in the mode of setting him on or 
 pursuing, which would negative the idea of ordinary care and prudence. 
 Ibid. 
 
 1846. Said act of 1847 has no reference to the laid occupied by a 
 railroad company for its track. WiUiama v. Micldgan C. B. B. Co., 2 
 Mich., 259. 
 
 1847. Said act has reference only to exterior fences. Where, there- 
 fore, one of two owners of adjoining lands put cattle upon his own lands 
 from which they entered upon the land of the other— there being no 
 partition fence — it was held that he was liable to an action therefor. 
 Johnson v. Wing, 3 Mich., 163. Under the amendatory act of 1861 he 
 would only seem to be liable in such case if it was his own duty to build 
 the fence. Laws 0/I86I, p. 294. 
 
 1848. Railroad companies are not bound to fence their road for the 
 protection of the domestic animals of other persons. And as the act of 
 running the cars over the road is a lawful act, they cannot be held liable 
 for accidental injuries occasioned thereby, unless the running was with- 
 out proper care, or in an unreasonable manner. WHliams v. Michigan 
 C. B. B. Co., 2 Mich., 259. 
 
 1849. The vote of a township authorizing cattle to run at large, does 
 not aflfect this rule. Railroads are not to be regarded as ordinary high- 
 ways, and the vote of the township cannot confer the right upon indi- 
 viduals to graze their cattle upon them. IMd. For the liability of rail- 
 road corporations while constructing their roads, see Railroad Cob- 
 PORATION8. 
 
 FIXTURES. 
 
 1850. One who puts a steam engine and its appurtenances in a mill 
 on the land of another, on the agreement that they shall remain his until 
 
 229 
 
§ 1857 , FORMER SUIT. 
 
 the owner of the land shall secure him the payment of the price thereof 
 by chattel mortgage, and who receives the mortgage accordingly, is en- 
 titled to claim and hold them under such mortgage as against one who 
 held a prior mortgage upon the land. Orippen v. Morrison, 13 Mich, 33. 
 
 1851, There is no inflexible rule of law which will make chattels that 
 have been attached to the soil a part of the realty,, where they are ca- 
 pable of being severed without injury to the freehold. The general rule 
 respecting such annexations is always open to variation by agreement 
 of parties. Ibid. 
 
 1§52. Under our statutes — Comp. L., § 4614 — ^the mortgagor being 
 rightfully entitled to the possession of mortgaged land until foreclosure, 
 he may make such arrangements for the use of the property, and for at- 
 taching and severing fixtures, as any other person might during his 
 term. Ibid. 
 
 FOREIGN RECEIVERS. 
 
 1553. Where a receiver has been appointed in a creditor's suit in 
 another State, and the debtor has made an assignment to him, such re- 
 ceiver is authorized to bring suits in this State in respect to the assigned 
 property. He sues, in such case, not strictly in his official character 
 as receiver, under his foreign appointment, but as holding the legal 
 interest in the property under the assignment. Oraydon v. Church, 
 7 Mich., 36. 
 
 1554. To establish his right to sue, in such case, it is not neces- 
 sary to go behind the recitals in the assignment and prove proceed- 
 ings resulting in his appointment. The Courts of this State will re- 
 cognize and act upon them as true for the purpose of enabling him to 
 make property in this State available, but it is for the Court which 
 has appointed him to hold him to his accountability as trustee. 
 Ibid. 
 
 FORMER SUIT. 
 
 1555. To render a former judgment a bar to a subsequent action, it 
 must have been rendered upon the merits, upon the same subject matter, 
 and between the same parties. Tucker «. Bohrback, 13 Mich., 73. 
 
 1556. To bar a set off introduced in a suit between A. and B., the 
 plaintiff put in evidence a former suit brought by B. and his wife against 
 A., in which a recovery was sought upon the same claim now sought 
 to be set off. It was shown that judgment was rendered in that case, but 
 it did not appear whether it was upon the merits or not. Held no bar. 
 Ibid. 
 
 1857. Plaintiff brought an action against a sheriff for taking certain 
 230 
 
FRAUDULENT CONVEYANCES. § 1864 
 
 personal property, which, on final hearing was determined against the 
 plaintiff. After the sheriflF had sold the property, plaintiflF brought his 
 action to recover the same against the purchaser at the sheriff's sale, 
 but it was held that the suit against the sheriff was a bar to the action 
 against the purchaser. Prentiss v. HoWrrook, 2 Mich., 373. See Delemn 
 V. Bates, 1 Mich., 97. 
 
 1858. An insurance agent gave bond to his principals, conditioned 
 to account for and pay over the moneys received by him as such. Judg- 
 ment having been recovered by them on this bond for money not ac- 
 counted for and paid over, a scire facias was issued, assigningas a breach 
 that the obligor had, before the judgment, received a further sum for 
 which he failed to account, and the receipt of which he fraudulently 
 concealed. On demurrer, it was held that the fraudulent concealment 
 was a sufficient reason for not including this sum in the original plead- 
 ings and judgment ; and the demurrer was overruled. Johnson v. Pro- 
 tineial Insurance Co., 12 Mich., 316. 
 
 FRAUD AND FRAUDULENT CONVEYANCES. 
 
 1859. Fraud defined. By the term fraud, is meant in law the 
 legal effect and intent of the acts complained of. Evrbyv. In{/ersoU, 
 Har. Ch., 172. 
 
 1860. The law has a standard for measuring the legal intent of 
 parties, and declares an illegal act, prejudicial to the rights of others, a 
 fraud upon such rights, although the party denies all intention to com- 
 mit a fraud. Ibid. 
 
 1861. Parties to. A gratitee who voluntarily becomes a party 
 to a deed which is fraudulent in part, forfeits his right to claim benefit 
 from another part which would have been good. Ibid. 
 
 1862. Fraudulent contract voidable. Fraud does not 
 render a contract void, but only voidable at the option of the defrauded 
 party ; and a suit by him on the contract will affirm it. Qailowayv. 
 Holmes, 1 Doug., 830 ; Jewett «. Petit, 4 Mich., 508. 
 
 1863. Where a creditor is induced, by the fraudulent representations 
 of his debtor, to compromise, and receives a part of his demand, he 
 cannot, on discovery of the fraud, retain the sum paid and sue in as- 
 sumpsit for the balance. But without returning the amount paid, he 
 may sue in case for damages sustained by the fraud. Jewett v. Petit, 4 
 Mich., 508. 
 
 1864. Proof of firaud. Fraud will not be presumed on slight 
 circumstances. The proof should be so clear and conclusive as to leave 
 no rational doubt on the mind as to its existence. Biick v. Sherman, 2 
 
 231 
 
§ 1873 FRAUDULENT CONVEYANCES. 
 
 Doug., 176. See also, Bdldmn v. BiuMand, 11 Mich., 389 ; Subbard v. 
 Taylor, 5 Mich., 155 ; Orr v. Laeey, 2 Doug., 230. 
 
 1S65. Frand upon creditors. Proof that a party was indebted 
 in the sum of $300 at the time of making a voluntary conveyance, is 
 not sufficient evidence of fraud to avoid the conveyance in favor of a 
 subsequent creditor. Page v. Kendriek, 10 Mich., 303. 
 
 1§66. The alleged fraudulent conveyance being by a man to his in- 
 tended wife, whom he soon after married, it was held that the continued 
 occupation of the land by him after the marriage, the neglect for some 
 years to record the deed, and the mortgaging of the land by husband 
 and wife for the husband's benefit, did not raise a presumption of frau- 
 dulent intent in making the conveyance. lUd. 
 
 1867. One of two co-partners sold out his interest in the partnership 
 to the other, who agreed to pay the debts, but instead of doing so, caused 
 them to be bought up by a confederate, and the lands of the other part- 
 ner to be sold on judgments obtained thereon. Held that these sales 
 might be avoided as fraudulent by one to whom the other partner had 
 conveyed, and that it was not necessary for the complainant to aver 
 or prove that he bought for value. Heed v. Weasd, 7 MiciL, ,139. 
 
 186S. A debtor mortgaged his lands in consideration of the negoti- 
 able notes of the mortgagee of equal amount, payable on time. Actual 
 fraudulent intention was denied, and it did not appear whether the notes 
 had been negotiated. It was held that fraud was not suflSciently estab- 
 lished by the facts to authorize the Court to decree a release of the mort- 
 gage. Suck «. Sherman, 2 Doug., 176. 
 
 1S69. Fraud in fact, or an express intent to commit fi'aud, is not ne- 
 cessary in order to render a conveyance fraudulent as against creditors. 
 It is sufficient if the effect of the conveyance is toiielay or hinder credi- 
 tors in the collection of their debts. Ibid. And see Pierson v. Mann- 
 ing, 2 Mich., 445. HoUistef v. Loud, 2 Mich., 309, e&ntra. 
 
 1870. Every voluntary conveyance by a parent to a child is not 
 fraudulent against creditors ; but, when made in good faith, by way of 
 advancement, and abundant property is retained by the parent to pay 
 all his debts, it is good against existing as well as subsequent creditors. 
 GuUer V. Orimold, Wal. Ch., 437. 
 
 1871. A parol ante-nuptial promise by a husband, to hold money 
 belonging to his wife at the time of marriage as her trustee, and invest 
 it in real estate in her name and for her separate use, cannot sustain a 
 post-nuptial settlement upon the wife, as against creditors. Wood v. 
 Savage, 2 Doug., 316. 
 
 1872. Such settlement would be void as to existing creditors, and 
 prima facie void as to subsequent creditors ; but the presumption of 
 fraud as to them may be rebutted. Ibid. 
 
 232 
 
FRAUDULENT CONVEYANCES. § 1881 
 
 1873. A conveyance voidable by creditors can only be avoided by a 
 judgment creditor, or one claiming under him, who has taken out exe- 
 cution and levied on the property fraudulently conveyed. Fox v. WiUia, 
 1 Mich., 321, overruling! same case sub. nom. Fox v. Cla/rk, Wal. Ch., 
 535. 
 
 1874. A mortgagee of the debtor, though he be a judgment creditor, 
 cannot call in question the validity of a prior conveyance by the mort- 
 gagor. Fox V. Willis, 1 Mich., 331. 
 
 1875. A conveyance was made to enable the grantee to purchase 
 goods for the joint benefit of both parties, who were to become part- 
 ners. The goods were not purchased, and a creditor pf the grantor who 
 had sued his claim before the conveyance was made, levied upon the 
 premises. It was held that the conveyance was fraudulent and void as 
 to such creditor. Wimer v. Famham, 2 Mich., 472. 
 
 1876. Intent. Where one makes false statements by means of 
 which another is induced to enter into a contract, the right of the latter 
 to have the contract rescinded does not depend upon whether the per- 
 son knew the statements to be false when he made them or not. The 
 law has regard rather to the effect of the false statements upon the 
 party to whom they are made, than to the actual intent to deceive by 
 the other. Comoerse v. BVwmrick, 14 Mich. 
 
 1877. Fraudulent grantee becoming bankrupt. Where 
 the debtor makes a voluntary conveyance in fraud of his creditors, and 
 his grantee becomes bankrupt, the creditors are entitled to the property 
 in preference to the assignee in bankruptcy. Manning v. Drake, 1 
 Mich., 84. 
 
 1878. Accounting by fraudulent grantee. The convey- 
 ance being actually and not only constructively fraudulent, it was held, 
 on bill filed by the creditors to set it aside, that the grantee should be 
 credited with taxes paid and improvements made by him, but not for 
 advances made to the fraudulent grantor, unless the money was used by 
 the latter before complainants filed their bill, to pay debts due at the 
 time of the conveyance. How v. Camp, Wal. Ch., 427. 
 
 1879. Avoiding by subsequent creditors. As a general 
 rule a conveyance which is void as to existing creditors, is void as to 
 subsequent creditors also. Heraehfddtv. George, 6 Mich., 456. 
 
 1880. Conveyance by a husband to his wife, which was fraudulent 
 as to existing creditors, set aside as to subsequent creditors also ; the 
 husband having represented himself the owner of the land at the time 
 of contracting the subsequent debts. lUd. See also. Beach v. White, 
 Wal. Ch., 495. 
 
 1881. A small and inadequate consideration having been received 
 from the wife for the conveyance, it will be sustained in equity only so 
 
 383 
 
§ 1889 FRAUDULENT CONVEYANCES. 
 
 fer as to secure to her the repayment of that sum. Se/nehfdSt v. George, 
 6 Mich., 456. 
 
 1§§2. Fraud a question of fact. The question of fraud 
 arising from a want of delivery and of a continued change of possession 
 of goods sold or assigned by way of security is a question of fact. Jack- 
 son v. Dean, 1 Doug., 519. See OlvBe/r n. Eaton, 7 Mich., 108 ; Bagg v. 
 Jerome,! Mich., 145 j Gay v. BidweU, 7 Mich., 519; Snook v. Dams, 
 6 Mich., 156. 
 
 1883. The burden of proving good faith and an absence of intention 
 to defraud, was held, under the Statutes of 1838, to be on the party claim- 
 ing under the assignment. Jackson v. Dean, 1 Doug., 519. 
 
 1884. Conveyance fraudulent on it§ face. Where an in- 
 strument contains illegal provisions, or such as are not reconcilable, on 
 any possible hypothesis, with an honest or legal intent, the law declares 
 it void on its face, because no evidence can change its character. But 
 in all other cases where property is transferred with the alleged intent 
 to hinder, delay or defraud creditors, the question of fraudulent intent is 
 one of fact for the jury, and the law cannot determine for them that the 
 showing, in a specified case, conclusively establishes such fraudulent in- 
 tent. Olimer V. Eaton, 7 Mich., 108 ; Botgg v. Jerome, 7 Mich., 145 ; Gay 
 V. BidweU, 7 Mich., 519 ; Nye v. Van Susan, 6 Mich., 329 ; Orr v. Looey, 
 3 Doug., 230. 
 
 1885. This principle applied to the case of general assignments for 
 the benefit of creditors. Pierson v. Manning, 2 Mich., 445 ; Sutton f>. 
 Hanford, 11 Mich., 518 ; Booth v. MeNair, 14 Mich. 
 
 1886. A chattel mortgage of a stock of goods which leaves the mort- 
 gagor in possession, and by inference allows him to make sales in the 
 usual course of business, is good between the parties and not neces- 
 sarily void as to creditors. Gay v. BidweU, 7 Mich., 519. See Oliwr v. 
 Eaton, 7 Mich., 108. 
 
 1887. A creditor is not in position to attack such a mortgage, unless 
 he was a creditor at the time it was given. Gay v. BidweU, 7 Mich., 
 519. 
 
 1888. A contract by which A. is to work for B. in the sale of mer- 
 chandise, in the store formerly occupied by A., taking charge of the 
 business, being accountable for all bad debts ; to have all the pro- 
 fits over and above ten per cent., and to give up the store and goods 
 whenever required, is not necessarily fraudulent on its face as against 
 creditors, but the question of fraud is for the jury, and would depend on 
 the evidence outside the instrument itself. Snook v. Davis, 6 Mich., 
 156. 
 
 1889. That a chattel mortgage is given to a trustee to secure de- 
 mands in favor of several creditors, instead of being given to the credi- 
 
 234 
 
FRAUDULENT REPRESENTATIONS. § 1896 
 
 tors themselves, and that it contains a provision that the trustee shall 
 be liable in the premises for his own neglect or default only, are matters 
 to be taken into account in determining the question of fraud, but they 
 do not render the instrument fraudulent in law. Bagg v. Jerome, 1 
 Mich., 145. 
 
 1S90. Change of pos8es§loii. The appointment of the clerk 
 of the mortgagor as agent of the mortgagee, for'the purpose of taking 
 care of and selling the goods, where there is no announcement of change 
 in business, no change of books, and no other apparent change of own- 
 ership or possession, is not a change of possession within the meaning 
 of the statute— Comp. L., § 3191. Boyle v. Stevens,'^ Mich., 87. 
 
 1891. Creditor must have Judgment. Trover by mortga- 
 gee against the sheriff who had taken possession of the mortgaged pro- 
 perty. The sheriff, defending under an execution in favor of a creditor 
 of the mortgagor, must allege in his pleading and prove a judgment, be- 
 fore he can question the good faith of the mortgage. Comstock v. Hol- 
 lon, a Mich., 355. 
 
 1S92. Administrator's right to avoid. The right which 
 the statute confers upon an administrator, in case of a deficiency of as- 
 sets, to institute proceedings to avoid fraudulent dispositions of property 
 by the intestate, can not be assigned by him. And, therefore, one who 
 takes from an administrator a note and mortgage given to the intestate, 
 upon which the latter had made an indorsement with a view to discharg- 
 ing to that extent the debt, cannot attack such indorsement as fraudu- 
 lent against creditors, though he himself be a creditor and the estate in- 
 solvent. Morris v. Morris, 5 Mich., 171. 
 
 1§93. A conveyance valid when made cannot be invali- 
 dated by subsequent acts of the grantor, nor by the creation of subse- 
 quent debts. Page v. Kendriek, 10 Mich., 300. 
 
 1§94. For cases where certain facts were held not to prove fraud, see 
 Subbard v. Taylor, 5 Mich., 155 (upon creditors), and Titus v. Minne- 
 sota Mining Co., 8 Mich., 183. For case of fraud by husband upon 
 wife in procuring a conveyance of her land, see Stiles v. Stiles, 14 Mich. 
 
 FRAUDULENT REPRESENTATIONS. 
 
 1895. Scienter. Representations made by a vendor at the time 
 of a sale, as to the quality of the article sold, are merged in an express 
 warranty. And an action of fraud cannot be based upon such repre- 
 sentations unless the vendor knew them to be false when made. Somer 
 V. Fellows, 1 Doug., 51. 
 
 1896. Representations as to value. A mere assertion of 
 value, made by the seller, where no warranty is intended, is no ground 
 
 235 
 
§ 1904 FRAUDS, STATUTE OP 
 
 of relief to a purchaser, because the assertion is a matter of opinion 
 wliich does not imply knowledge, and in which men diflfer. Every 
 person reposes at his peril in the opinions of others where he has 
 equal opportunity to form and exercise his own judgment Picard «. 
 McCormich, 11 Mich., 68. 
 
 1897. But it cannot be laid down as a rule of law that value is never 
 a material fact. And when the purchaser expressly relies upon the 
 knowledge of the seller as to quality or value, the seller is bound to act 
 honorably and deal fairly with the purchaser. lUd. 
 
 1§9§. A jeweller knowing the purchaser's ignorance, deliberately 
 and designedly availed himself of it to defraud him by false statements 
 of the value of articles in his trade which none but an expert could rea- 
 sonably be expected to understand. It was held that an action would 
 lie for the fraud. Fbid. 
 
 FRAUDS, STATUTE OF. 
 
 1S99. Agreement to pay debt of another. A debtor 
 transferred to his creditor the note of a third person in part payment, 
 and guaranteed its payment. Such guaranty is an original undertaking, 
 and not within the statute of frauds. Jones v. Palmer, 1 Doug., 379. Its 
 consideration may be shown by parol. Ibid. See WeOAngton v. Hunt- 
 ington, 12 Mich., 10. 
 
 1900. Where the guaranty of another's debt is merely incidental to 
 a principal contract made by the guarantor himself, on his own ac- 
 count, it is regarded as in effect a promise to pay his own debt ; and it 
 need not therefore be in writing. Huntington v. WetUngton, 13 Mich., 
 10. 
 
 1901. A verbal agreement by which partners buy out the interest of 
 a co-partner, and agree to indemnify him against the partnership debts, 
 is not within the statute. Bonebright v. Pease, 3 Mich., 318. 
 
 1902. Defendant verbally promised a debtor of plaintiff to pay the 
 debt on condition that the debtor would deliver defendant a certain 
 cow. But the plaintiff not having discharged the debtor, the promise, 
 not being upon any consideration moving from plaintiff, was void by 
 the statute. Brown v. Hasen, 11 Mich., 219. 
 
 1903. A contractor having abandoned the b\iilding he was erecting, 
 resumed work and did certain extra labor on the promise of defendant — 
 a third person — to pay him. But the evidence showed that he still 
 looked to the original debtor for payment, and to defendant only as 
 guarantor ; and the promise of defendant was held within the statute. 
 Bresler v. Penddl, 12 Mich., 224. See Fcmodl v. Dewey, 12 Mich., 436. 
 
 1904. Suit on a guaranty, not in writing, that certain notes sold by 
 
 286 
 
FRAUDS, STATUTE OP § 1913 
 
 defendant to plaintiffs were good and collectable, and the makers re- 
 sponsible ; tliat tlxe maker of a certain mortgage sold at tlie same time 
 was responsible ; that the land mortgaged was ample security and the 
 title perfect and unincumbered. The guaranty was held not within the 
 statute. Huntington «. Wdlington, 12 Mich., 10. 
 
 1905. Repre§entatIon8 as to credit. Such guaranty is not 
 within the provision which exempts persons from being charged 'Upon 
 parol representations concerning the credit and ability of others ; as 
 that is confined to cases where the representations form no part of the 
 contract. IHd. 
 
 1906. Interest In lands. The guaranty of the mortgage does 
 not in any way affect the title to lands, or raise or affect any trust, 
 power or authority in or over the land mortgaged. It is simply an un- 
 dertaking that certain facts exist. Ihid. 
 
 1907. A party who, by promising to assign a tax-purchase certificate 
 to the owner of the land, has induced the latter not to exercise his legal 
 right to redeem, cannot, after the time for redemption has expired, 
 shield himself behind the statute to avoid performance. Laing n. Mc- 
 Eee, 13 Mich., 134. 
 
 190§, Sale of chattels. The delivery required by the statute 
 where no payment is made or earnest given, is not dispensed with by 
 agreement at the time that the vendee should take the property where 
 it then was, and the vendor not be troubled to make any delivery. M- 
 derton v. BucTim, 3 Mich., 333. Inquiry about the property by the ven- 
 dee afterwards not an exercise of ownership over it. Ibid. 
 
 1909. Acceptance of draft. A parol agreement by a tax col- 
 lector to receive a draft by his creditor on himself in payment of taxes, 
 is void — ^the statute, Comp. L., § 1266, requiring an acceptance of a draft 
 to be in writing. EUiott v. Miller, 8 Mich., 132. 
 
 1910. Contractfor a lease. A contract for a lease is perform- 
 ed by the making of the lease ; and therefore a verbal contract made in 
 April for a lease for one year from the first of May following, is not 
 within the provisions of the statute. Section § 8179 of Comp. L. gov- 
 erns such a contract ; while a lease is governed by § 3177. TiUman ij. 
 Fuller, 13 Mich., 113. 
 
 1911. Writing must be complete. A promise in writing to 
 pay the debt of another must show the whole terms of the contract ; no 
 resort can be had to parol evidence to add to them. HaU v. 8oule, 11 
 Mich., 494 
 
 1913. Void contract not a consideration. A verbal pro- 
 mise to pay the debt of another, being void under the statute of frauds, 
 is not a valid consideration for a subsequent promise in writing 
 
 Ibid. 
 
 237 
 
§ 1921 GARNISHEE PROCEEDINGS. 
 
 1913. Ratification. A void contract by two to purchase goods 
 of the value of more than fifty dollars, is not ratified as to both by a sub- 
 sequent acceptance of the goods by one without tlie linowledge or assent 
 of the other. Chamberlain n. Dow, 10 Mich., 319. 
 
 1914. Party setting up ;§tatute must show his case to 
 fail within in. Goods being found by two jointly in the St. Clair 
 river, it was agreed that defendant should sell the same and divide the 
 proceeds. Suit being brought upon this agreement, defendant claimed 
 that under the statute relative to lost goods no sale could lawfully have 
 been made within a year, and the agreement, which was not in writing, 
 was therefore void. Held that to render the statute applicable, he should 
 have shown that the 'finding was in that part of the river which lies 
 within the State. Cummings v. Stone, 13 Mich., 70. 
 
 GARNISHEE PROCEEDINGS. 
 
 1915. Act for, to be strictly construed. The act to author- 
 ise proceedings against garnishees being in derogation of the common 
 law, must be strictly construed. Maynards v. ComweH, 3 Mich., 309. 
 
 1916. Affidavit for. The affidavit, when made by an agent or 
 attorney, need not state afflnnatively that the affiant is such agent or 
 attorney. The statement by way of recital is sufficient. Wetheirwajji v. 
 Paine, 2 Mich., 555.- 
 
 1917. Against one Joint debtor. A judgment rendered in 
 garnishee proceedings against one of several joint debtors is void, and 
 no bar to a subsequent suit against all. Ibid. 
 
 191§. Jurisdiction of justice. The jurisdiction of a justice of 
 the peace does not depend on the amount due from the garnishee to the 
 principal debtor, but upon the sum claimed to be due from the latter to 
 plaintiflF. Ibid. 
 
 1919. Trial : admissions by garnishee. Upon a trial of a 
 suit against a garnishee, proof of the admissions or declarations of the 
 garnishee, as to his indebtedness to or possession of property of the 
 principal debtor, is inadmissible. Maynards v. CornweBi, 3 Mich., 309. 
 
 1920. Garnishee's evidence conclusive. The plaintiff is 
 not at liberty to controvert the statements of the garnishee on his ex- 
 amination, either in the Justice's Court, or in the Circuit Court on ap- 
 peal ; but he may examine the garnishee anew in the Circuit Court for 
 the purpose of a more full discovery. Nevoell n. Blair, 7 Mich., 103 ; 
 Tlumuis V. Sprague, 12 Mich., 120. 
 
 1921. The examination before the justice, taken in writing and 
 signed by the garnishee, is evidence against him on appeal. lUd. 
 
 138 
 
GOVERNOR AND JUDGES. § 1929 
 
 1922. But lie may be permitted to correct, under oath in the Circuit 
 Court, a mistake made by him on his examination before the justice. 
 IMd. 
 
 1923. Where the garnishee, on his examination before the justice, 
 admitted that he had in his hands moneys collected for defendant, but 
 stated that he had been informed that these moneys liad been assigned 
 before service of the garnishee process, he was held entitled, on appeal, 
 to introduce evidence to prove the assignment. Ibid. 
 
 1924. IVegotiable paper not overdue is not liable to be reached 
 by garnishee process against the maker. LitUefldd v. Hodge, 6 Mich., 
 326. 
 
 GIFT. 
 
 1925. Yinbat is not. Plaintiffs intestate, a few days before his 
 decease, put into the hands of defendant a sum of money, with instruc- 
 tions to pay certain bills with a portion of it, and to dispose of the bal- 
 ance to suit himself. Defendant paid out a small sum before the intes- 
 tate's death, and it was held that there was no absolute disposition of 
 the money by the intestate to prevent its becoming assets of his estate. 
 Bigdow v. Paton, 4 Mich., 170. 
 
 1926. Proof of. Bill by the widow and heir at law of A., against 
 the widow, heirs at law and administrator of B. (who was the father of 
 A.), to compel the conveyance to complainants of certain premises al- 
 leged to have been given by B. to A. in consideration of natural affec- 
 tion, but not conveyed. Held, that in such a case conveyance would 
 only be decreed on the most conclusive proof of the gift, and of some 
 satisfactory reason why it was not consummated by a conveyance. 
 Jones V. Tyler, 6 Mich., 364. 
 
 1927. Possession of the premises by A. subsequent to the alleged 
 gift would be suflaciently explained by the relationship between the par- 
 ties, and could not avail complainants. Ibid. 
 
 192S. A mortgagee of B. subsequent to the alleged gift, but not 
 charged with notice of it, could not id any event be affected thereby. 
 Ibid. 
 
 GOVERNOR AND JUDGES OF MICHIGAN TERRI- 
 TORY. 
 
 1929. liVlten their offices ceased. Notwithstanding the 
 previous organization of the State government, the Governor and 
 Judges of the territory of Michigan remained in office and competent 
 to execute the powers conferred upon them by the act of Congress, 
 entitled " An act to providje fiw the adjustment of titles of land in the 
 
§ 1936 GOVERNOR AND JUDGES. 
 
 town of Detroit and territory of Michigan, and for other purposes," ap- 
 proved April 21, 1806, until after July 1, 1836. ScoU v. Detrmt Young 
 Men's Society's Lessee, 1 Doug., 119. 
 
 1930. Oyer the territory west of lake Michigan, their powers con- 
 tinued until the organization of the territory of Wisconsin. Ibid. 
 
 1931. The jurisdiction and powers of the Judges of the territory of 
 Michigan, as a District and Circuit Court of the United^'States, remained 
 unaffected by the organization of the State government, and were re- 
 tained by them until their offices were abolished by express legislation 
 of Congress, to take effect on the admission of Michigan into the Union. 
 Hid. 
 
 1933. A strangrer not to dispute their grants. Con- 
 gress having authorized the Governor and Judges of the territory of 
 Michigan, for the time being, to convey certain lands, the fee of which 
 was in the United States, and having, by acts of legislation, recognized 
 the persons who assumed to convey such lands, by virtue of such au- 
 thority, as incumbents of those offices, and the offices as being in ex- 
 istence, at and subsequent to the time when such conveyances were 
 made, a mere stranger will not be permitted to controvert the title under 
 such a conveyance, on the ground that the grantors were not, at the 
 time of the grant, such Governor and Judges, and that there were 
 then no such offices. Ibid. 
 
 1933. Organization of the Liand Board. The Land 
 Board constituted by said act of Congress of April 21, 1806, did not 
 consist of two integral parts, the Governor and the Judges ; but of four 
 persons designated by their names of office, any three of whom were 
 authorized to execute any of the powers conferred by the act. A deed 
 of bargain and sale executed by the Judges only is therefore valid. 
 lUd. 
 
 1934. They will all be presumed to have been present, and to have 
 deliberated upon an act done by the majority, unless the contrary ex- 
 pressly appears. Ibid. 
 
 1935. Proof of grant by. A resolution of the Governor and 
 Judges that a certain lot be assigned to a person named, their parol 
 declarations that it had been conveyed, and parol proof that their re- 
 cords had been inaccurately kept, and many grants had been made 
 and deeds given which did not appear thereon, were all held incompe- 
 tent evidence in opposition to a subsequent conveyance by them. Ibid. 
 And see Beady v. Kea/rdey, 14 Mich. 
 
 1936. liaying out Detroit. The power to lay out the town 
 of Detroit, given to the Governor and Judges by said act of Congress 
 of April 21, 1806, was fully executed by them on 27th April, 1807. People 
 c. Carpenter, 1 Mich., 273. 
 
 240 
 
GRANTS. § 1944 
 
 1937. Power over streets in Detroit. They had no power 
 to grant the exclusive use of any of the streets or alleys in Detroit to in- 
 dividuals. lUd. For further decisions as to the dedication of streets 
 and alleys to the public by the plan of Detroit, see Wats. 
 
 193S. Ratiflcatlon of deed by. Where the Governor and 
 Judges deeded a lot in Detroit, in 1816, in exchange by the grantee of 
 another lot to the United States, and the United States took possession 
 of the last mentioned lot, and occupied it for fourteen years and more, 
 it was held that this ratified and made valid the deed by the Governor 
 and Judges even if originally invalid. Farmers and Mechaniea' Bank v. 
 City of Detroit, 12 Mich., 145. 
 
 GRANTS. 
 
 1939. Public grants are to be construed strictly ; nothing passes 
 under them by implication. La Plaisance Bay Harbor Company v. Mon- 
 roe City, Wal. Ch., 155. 
 
 1940. Reservations. Where, by a treaty with the Chippewa 
 Indians, lands were reserved for certain individuals specified, to be after- 
 wards located in such manner as the President might direct, It was held 
 that this reservation was equivalent to an absolute grant ; and the title 
 was conferred by the treaty, though not perfect until the location was 
 made, which was necessary to give the grant identity. Dewey v. Cam- 
 pan, 4 Mich., 565 ; Stockton v. Williams, Wal. Ch., 120, and 1 Doug., 
 546. See this last case, and Campau v. Dewey, 9 Mich., 381, as to the 
 evidence admissible on the question of the identity of the reservee. 
 
 1941. A pat«nt was not necessary to perfect the title. Lands may 
 be granted by act of Congress, or by treaty, as well as by patent. Stock- 
 ton V. WiUioMis, 1 Doug., 546. 
 
 1942. A patent issued by the President to one who claimed to be, 
 but was not, one of the reservees, was void, and could not affect the title 
 of the real reservee. Ibid. Even though issued under a special act of 
 Congress. Campau ». Dewey, 9 Mich., 381. 
 
 1943. A certified copy of a map from the General Land OflSce, on 
 which a certain section was designated as the tract of one of the reser- 
 vees, was held evidence of the due location of such section, according to 
 the conditions of the treaty. Dewey v. Campau, 4 Mich., 565. 
 
 1944. Impeaching government grant. A patent of land 
 from the United States, cannot be impeached in an action at law, on 
 the ground either of fraud or mistake, in any of the proceedings required 
 as pre-requisites to its issuing, by one claiming under a subsequent 
 grant. Bnuikner^s Lessee ». Lawrence, 1 Doug., 19. See supra, 1166. 
 
 16 S41 
 
1951 GUARANTY. 
 
 GUARANTY. 
 
 1945. Continuing. A bond was executed by defendant to plain- 
 tiff, reciting : That, whereas, P. C. & Co. were then, or might there- 
 after become indebted to plaintiffs in divers sums of money, and might 
 become liable from time to time to pay plaintiffs divers sums of money, 
 to the amount of $3,000, by means of notes, discounts and overdrafts 
 made and indorsed by said P. C. & Co., and for their benefit, and con- 
 ditioned that if said P. C. & Co. should pay or cause to be paid to plain- 
 tiffs all and singular the notes, &c., made by said P. C. «& Co., and for 
 their benefit, to the amount of $3,000, and should pay or cause to be paid 
 to plaintiffs all said liability assumed by the said P. C. & Co. to the 
 amount of $3,000, then said obligation to be void, otherwise to remain 
 in full force and effect for three years from January 1, 1837, unless no- 
 tice to the contrary should sooner be given to the plaintiffs. Held that 
 the bond was a continuing guaranty, and intended to cover successive 
 notes, discounts and overdrafts, made by P. C. & Co. at any time 
 within the three years, as often and whenever the antecedent trans- 
 actions were discharged. Farmers and Mechanics^ Bank v. Kerc^iecai, 2 
 Mich., 504. 
 
 1946. The following was held not to be a continuing guaranty, but 
 to be limited to a single purchase or transaction : " St. Joseph, Sept. 
 18, 1858. Joseph Card: Dear Sir— If you will let the bearer have what 
 leather he wants, and charge the same to himself, I will see that you 
 have your pay in a reasonable length of time. J. E. Stevens." Oard 
 V. Stevens, 13 Mich., 292. 
 
 1947. Application of payments. The first moneys received 
 by the creditor on the debtor's general account, after a purchase under 
 this guaranty, should be applied upon such purchase. Ibid. 
 
 1948. Demand and notice. In the case supra, 1945, demand 
 of the principal, and notice to the guarantor, at the close of the period 
 covered by the guaranty, was not necessary. Farmers and Mechanics^ 
 Bank v. Sm-cheval, 2 Mich., 504. 
 
 1949. No general rule can be laid down in respect to demand and 
 notice in case of guaranties ; but where from the terms of a guaranty, 
 or the facts disclosed in a given case, demand and notice are required, 
 the omission cannot be available as a defense unless the defendant can 
 show that he has been damnified thereby. Ibid. 
 
 1950. Xotice of acceptance of a guaranty by the creditor, is 
 not required to be given to the guarantor. Ibid. 
 
 1951. Discharge by extension of time. If the creditor 
 gives time to the principal, without the consent of the guarantor, the 
 latter is discharged. Ibid. 
 
 242 
 
GUARANTY. § 1961 
 
 1952. So if one of several principaU gives his own obligation for the 
 original debt, and time is given him without the guarantor's assent. 
 Ibid. 
 
 1953. Guaranty of collection. The assignor of a note and 
 mortgage covenanted with the assignee that in case the latter should 
 fully prosecute the note to judgment, and foreclose the mortgage, and 
 should not collect a specified sum, with costs ; and if upon execution or 
 foreclosure the mortgaged lands should be taken for sale or set off, then 
 the assignor would pay said sum. The mortgage was foreclosed in 
 chancery ; and it was held, in a suit upon the covenant, that the as- 
 signor could not set up, in defense, a mere irregularity in the foreclo- 
 sure. Barnes v. Baker, 2 Mich., 377. 
 
 1954. Decree having been taken for the sum due, and execution 
 awarded for any deficiency after sale of the mortgaged premises, this 
 was held a sufficient compliance with the condition of the covenant, 
 that the note should be prosecuted to judgment. Ibid. 
 
 1955. Before the assignee could sue upon the covenant, he must 
 exhaust his remedy against the mortgagor, by issuing execution to 
 the county of his residence. Ibid. 
 
 1956. Where the amount of a note guaranteed is such that suit may 
 be brought upon it either in Justice's Court or the Circuit Court, the 
 condition of a guaranty of collection is complied with by obtaining 
 judgment in a Justice's Court, and making due endeavor to collect it 
 by execution. Thomas v. Dodge, 8 Mich., 51. 
 
 1957. And it is not necessary that a transcript of such judgment 
 should be filed in the Circuit Court, and execution issued against lands 
 thereon, where it clearly appears that the judgment debtor has no real 
 estate liable to execution. Ibid. 
 
 1958. Where one guarantees the collection of a note which is se- 
 cured by a collateral mortgage, and at the same time assigns the mort- 
 gage with the note, he is not liable upon his guaranty until resort has 
 been had to the mortgage, as well as to the note, for collection of the 
 moneys secured. Barman v. Carhwrtt, 10 Mich., 338. 
 
 1959. Naming promissee. The guaranty of a promissory note 
 need not name the promissee. Thomas v. Dodge, 8 Mich^ 51 ,• Neoius v. 
 Bank of Lansingburgh, 10 Mich., 547. 
 
 1960. Such a guaranty becomes fixed whenever any one takes it 
 upon the guarantor's credit. And where suit is brought upon it, the 
 presumption that the plaintiff is the promissee will prevail in his favor, 
 at least until rebutted by showing that the guaranty had previously 
 been operative in other hands. Nemus z. Bank of Lansingburgh, 10 
 Mich., 547. 
 
 1961. Oaarantor of note not a maker. One who in 
 
 243 
 
§ 1971 GUARDIAN AND WARD. 
 
 dorses upon a negotiable promissory note a guaranty of payment 
 contemporaneously with its execution, cannot be treated as a joint 
 maker of the note. His undertaking is distinct and separate from that 
 of the maker. Tinker v. MeOa/idey, 3 Mich., 188; overruling Higgins v. 
 Watson, 1 Mich., 420. 
 
 1962. Guaranty not negotiable. A guaranty of payment 
 is not negotiable, though indorsed upon a negotiable promissory note. 
 lUd. 
 
 GUAKDIAN AND WARD. 
 
 1963. Poirer of guardian over property. A guardian 
 has the right to collect and receive money due to his ward, on a bond 
 and mortgage, or to sell and assign the bond and mortgage, in the exer- 
 cise of his discretion as guardian. Idvingstan v. Jone», Har. Ch., 165. 
 
 1964. But he cannot accept a deed of lands in lieu of money paid 
 into the Court of Chancery under a decree for his infant ward, and if 
 he does so, the infant is not bound thereby. WeslbrooJc v. Gomatock, 
 Wal. Ch., 314. 
 
 1965. The Court of Chancery has a general supervisory power over 
 the persons and estates of infants ; and when any part of an infant's 
 estate is in litigation there, it is under the immediate guardianship and 
 protection of the Court; and neither the general guardian, nor the 
 guardian ad litem has any right to receive it. Ibid. 
 
 1966. Before the Court of Chancery will order money to be paid to 
 a guardian, it must be satisfied that he has given sufficient security for 
 the performance of his trust, and that he has not abused it. Ibid. 
 
 1967. Ouardlau'8 bond. It was not necessary that the guar- 
 dianship bond, required by Code of 1837, (p. 59, § 5) should be exe- 
 cuted by the guardian ; it was sufficient if a bond, with sufficient sure- 
 ties, was given. Palmer v. OaMey, 3 Doug., 433. 
 
 1969. If the guardian was a married woman, and united with sure- 
 ties in executing the bond, it seems that the bond was good, notwith- 
 standing her incompetency. Ibid. 
 
 1969. The bond was not a condition precedent to the execution of 
 the trust of guardian. Ibid. 
 
 1970. Harried woman guardian. Both at the common 
 law and under the Code of 1837, a married woman was competent to be 
 a guardian, with the assent of her husband, but not without such 
 assent. Ibid. 
 
 1971. Letters granted to her without his assent would be voidable 
 merely, not void. And his assent might be presumed from his joining 
 with her in the bond which the statute required the guardian to give 
 before making sale of the ward's real estate. Ibid. 
 
 244 
 
GUARDIAN AND WARD. § 1979 
 
 1972. Jurisdiction to appoint guardians. Said Code of 
 1827, (p. 57, § 1) defined and limited to the cases therein specified the 
 jurisdiction of the Probate Court over the appointment of guardians for 
 minors conferred in general terms by same Code, p. 55, § 1. Ibid. 
 
 1973. The Probate Court had no power to appoint a ^ardian for a 
 minor oyer fourteen, and within the territory, without first citing him 
 to appear and choose his own guardian. And an ex-parte application, 
 representing the minor to be over fourteen, conferred no jurisdiction to 
 appoint without citation, if, in feet, the minor was over that age. IMd. 
 
 1974. A decree of the Probate Court, appointing a guardian, ap- 
 peared upon its face to have been made upon an application represent- 
 ing the minor to be under fourteen, and did not show any citation to 
 the minor. Held to be valid on its fece, though showing no formal 
 finding of the fact that the minor was under fourteen ; but held, further, 
 that it might be impeached, in a collateral action, by showing that the 
 minor was, at the time, over fourteen. Ibid. 
 
 1975. Sale of lands by guardian : petition. A petition 
 by the guardian of a minor, to the Probate Court, for license to sell the 
 lands of his ward, stating that a part only of the land was under improve- 
 ment, and the rest unproductive ; and that it was necessary a portion of 
 the lands should be used to pay certain debts incurred in behalf of the 
 ward, and that, in the opinion of the petitioner, it would be for the in- 
 terest of the minor to have the land sold, and the proceeds, after 
 paying the debts, put out at interest, is sufficient. Nichols ». Lee, 10 
 Mich., 526. 
 
 1976. In a petition under the act of February 28, 1840, it was neces- 
 sary to set forth fully all the facts and circumstances rendering a sale 
 or other disposition of the minor's property necessary, that the Court 
 might judge of the propriety of the proposed sale. Dorr, petitioner, 
 WaL Ch., 145. 
 
 1977. The guardian should not make an absolute sale of the real 
 estate of the ward, and then apply to the Court to authorize him to do 
 what he has already bound himself to do ; and the Court wUl not ratify 
 such agreements. The proper course is to obtain leave of the Court in 
 the first instance. Ibid. 
 
 1978. One claiming adversely to the title of the ward, cannot con- 
 test the validity of a sale of lands made by the guardian on the ground 
 that the petition for license to sell was defective (Comp. L., § 3093). 
 Marvin v. Schilling, 12 Mich., 356. 
 
 1979. Nor can he contest it on the ground that the sale was a fraud 
 upon the ward. The ward, or any one claiming under him, has a right 
 to inquire into anything wrong in the proceedings: but a third person 
 
 245 
 
§ 1986 HOMESTEAD. 
 
 cannot drag the ward's rights into Court in a litigation between himself 
 and the purchaser. Ibid. 
 
 1980. A married woman who is a guardian can conyey the 
 real estate of the ward without her husband joining in the deed. Pal- 
 mer V. Oakley, 2 Doug., 433. For further decisions applicable to sales 
 made by guardians, see Estates of Deceaskd Persons. 
 
 19§1. Redemption by guardian. A guardian has a right 
 to redeem the lands of his ward from a mortgage sale. Maroin v. Schil- 
 ling, 1% Mich., 356. 
 
 HABEAS CORPUS. 
 
 19§3. Federal Jurisdiction. Where one is imprisoned under 
 the authority and in right of the Federal Goremment, the State ju- 
 didary has no jurisdiction to inquire into the legality of the imprison- 
 ment on habeas corpus. Hatter of Spangler, 11 Mich., 298. 
 
 1983.- The Recorder of ]>etroit has no autboiity to issue a 
 writ of habeas corpus to take a prisoner from the Reform School, who 
 has been lawfully sentenced there, unless to testify as a witness. He 
 cannot bring the prisoner up for a new sentence, on the ground of a 
 mistake as to his age when the former sentence was imposed. Matter 
 of Mason, 8 Mich., 70. 
 
 19S4. Inquiry Into Jurisdiction. Where the petitioner is 
 held by virtue of a commitment fair on its face, charging him with con- 
 tempt of Court in refusing to give evidence, it is competent for him to 
 go behind the commitment, and show that the Court committing him had 
 no jurisdiction of the proceeding in which he was called as a witness. 
 Matter of Mwton, 10 Mich., 208 ; Matter of Had, 10 Mich., 210. 
 
 1985. Remanding petitioner to proper custody. 
 Where it appeared that the petitioner was held by an officer who had 
 no legal authority for that purpose, but that there was authority in the 
 keeper of the State Reform School to detain him, under a legal commit- 
 ment from which he had not been properly discharged, the Court would 
 not order him released, but remanded him to the custody of the keeper 
 of the Reform School. Maiter of Mason, 8 Mich., TO. 
 
 HOMESTEAD. 
 
 1986. Selection of. The mere ownership and occupancy of 
 premises was not sufficient to constitute the same a homestead, under 
 the act of March 35, 1848 — Comp. L., § 4495 — unless there was an 
 actual selection and choice of the premises as such, by the owner and 
 occupant. People v. Phtmsted, 2 Mich., 465. 
 
 246 
 
HOMESTEAD. § 1992 
 
 19§7. And it was accordingly held, that a conveyance of premises 
 so owned and occupied, but which had not been previously selected as 
 a homestead, was valid without the signature of the owner's wife. lUd. 
 
 1988. The constitution of 1850 is repugnant to said act of 1848, as 
 respects the value of the homestead to be exempted, and to that extent 
 repeals it. If a place occupied as a homestead is within tba constitu- 
 tional quantity, but exceeds the value of $1,500, it may be reduced in 
 quantity so as to bring it within the required value, provided it can be 
 so reduced by division as to leave a homestead, within the specific 
 value, without cutting off any of that which, in fact, goes to constitute 
 it a homestead ; in other words, so as to leave a dwelling house, with 
 the out-buildings and appurtenances necessary to its ordinary use as 
 such. Beecher u. Baldy, 7 Mich., 488. 
 
 1989. But if, when reduced so far as it is divisible, the homestead 
 still exceeds the value of $1,500, it is not such a homestead as is ex- 
 empted by the constitution. Ihid. 
 
 1990. Selection is, under the constitution, only required where the 
 tract out of which a homestead is claimed consists of a greater quantity, 
 or is of greater value than that instrument exempts. If the tract 
 claimed by the debtor as exempt is all that he claims and occupies as a 
 homestead, and is of the limited quantity and value, the whole is ex- 
 empt without any other selection than is evinced by its ownership 
 and occupation as a homestead. lUd. See also Thomas v. Bodge, 8 
 Mich., 51 ; Dyson v. Shedey, 11 Mich., 527. 
 
 1991. As neither the constitution nor any legislation has [1859] pro- 
 vided any mode of determining the value of premises claimed as a 
 homestead, when the value is disputed, either party, after a levy has 
 been made, may file a bill in equity asking that a selection may be 
 made by the householder, should the property be found divisible, and 
 that the value may be ascertained, whether divisible or not. The 
 value may then be ascertained either by directing an issue to a jury, 
 or by reference to a commissioner to take proofs and report ; and in 
 this manner the rights of both parties may be secured according to the 
 nature of the case. Beeelwr v. Baldy, 7 Mich., 488. For subsequent 
 legislation, providing for selection, and for a jury to appraise the prem- 
 ises when it is claimed that they exceed $1,500 in value, and if they do, 
 for the payment of the excess by the debtor, or for a sale and the pay- 
 ment to him of $1,500 from the proceeds, see Laws of 1861, p. 540. 
 
 1992. The notification to the officer, of a homestead claim, was not 
 required to be in writing under the law of 1848. It might be in any 
 form which indicated to the officer, with reasonable certainty, the land 
 claimed as a homestead, and might be made within a reasonable time 
 after the debtor had notice of the levy. Beecher v. Baldy, 7 Mich., 488. 
 
 247 
 
§ 2001 HOMESTEAD. 
 
 1993. Under said act of 1848, the homestead exemption was to be 
 claimed after a levy and before a sale. And when the land consisted 
 of a town lot, the value was to be estimated at that time. Herschfddt v. 
 George, 6 Mich., 456. 
 
 1994. Ownership and occupancy esgential. To entitle 
 a party to claim land exempt as a homestead, under the law of 1848, he 
 must both own and occupy it. Wisner v. Famham, 2 Mich., 472. And 
 see Beeeher «. Baidy, 7 Mich., 488 ; Dyson v. Sheeley, 11 Mich., 527. 
 
 1995. A lot cannot'be claimed as exempt under the law, which the 
 debtor has caused to be conveyed to his wife, on the pretence that such 
 conveyance was made for the purpose of vesting the title in her as a 
 homestead. Serschfeldt v. George, 6 Mich., 456. 
 
 1996. The premises must have been set apart as a home for the 
 purposes of the owner and his family. Where the owner of a city lot 
 built a double house upon it, in such a way as to show that he designed 
 it for the use of two families, and not for one, and leased one part of it, 
 occupying the other part himself, it was held that he could not claim 
 the whole as exempt from execution as a homestead. Dyson v. Shedey, 
 11 Mich., 527. 
 
 1997. The fact that the yard of the part leased was used by the 
 owner in common with the tenant, would not vary the case. Ibid. 
 
 1998. Waiver of the right. Held, that the constitutional 
 and statutory provisions for a homestead exemption, conferred upon 
 the householder a right which he might waive at his option ; and that 
 where both husband and wife joined in the execution of a mortgage of 
 their homestead, it was a renunciation of this privilege, and on fore- 
 closure, the purchaser would succeed to all their rights, precisely as if 
 no exemption had ever existed. Chamberlain v. LyeU, 3 Mich., 448. 
 
 1999. Where a waiver is claimed, it lies upon the party asserting it 
 to show it by affirmative proof But where the debtor is a married 
 man, he cannot, by any waiver, consent to a sale on execution, so as to 
 render the sale valid, without the consent of the wife, any more than 
 he could convey it by deed without the wife's signature. Such deed 
 would be void, even as to the husband, by the express words of the 
 constitution. The object of the exemption was quite as much to pro- 
 tect the wife and family, as the husband. Beeeher v. Baldy, 7 Mich., 488. 
 
 2000. Undef the constitution, the homestead exemption is not a 
 personal privilege, to be claimed by the debtor, but an absolute right, 
 necessary to the welfare of the household, of which he cannot be de- 
 prived, if an unmarried man, without some act of his relinquishing it, 
 or, if a married man, without the joint conveyance of himself and wife. 
 Dye V. Mann, 10 Mich., 291. 
 
 3001. Who may talte advantagre of Invalid convey- 
 248 
 
HOMESTEAD. § 2008 
 
 ance. A subsequent mortgagee, whose mortgage is executed by both 
 husband and wife, may take advantage of the invalidity of a mortgage 
 given by a married man upon his homestead without his wife's signa- 
 ture. Such mortgage by the husband alone is void for all purposes, 
 and not merely as to the homestead interest. IM. 
 
 2002. And where bill is filed to foreclose the invalid mortgage, and 
 the subsequent mortgagee is made a party defendant, he may take ad- 
 vantage of the invalidity of the first mortgage by answer, without filing 
 a cross bill. lidd. 
 
 2003. Where a defendant conveyed premises, after 1848, and bef re 
 the new constitution, and the wife did not unite in the deed, and a judg- 
 ment creditor levied upon them, and then filed bill in equity in aid of 
 the execution, it was contended that, as the wife did not join in the con- 
 veyance, the deed was void, and she was entitled to be protected in the 
 enjoyment of forty acres as a homestead. It was held, that if she 
 had a,ny equitable interest in a homestead to be selected from the prem- 
 ises, it could not be adjudicated in that suit, but she must join her 
 husband in a cross bill for the purpose. Wisner v. Farnham, 3 Mich., 
 473. 
 
 2004. Conveyance valid in part. Where a married man 
 gives a mortgage covering his homestead, without his wife's signature, 
 and the premises are of more than $1,500 value, the mortgage, though 
 void as to a homestead of that value, is good as to the residue. On bill 
 filed to foreclose such a mortgage, the Court ordered a reference to a 
 commissioner to set off as a homestead so much of the premises, with 
 the improvements, as was worth $1,500 at the date of the mortgage, in- 
 cluding the dwelling house, and, as far as practicable, such of the out- 
 buildings and other improvements as might be found most essential to 
 the enjoyment of the homestead ; to the end that, on the coming in and 
 confirmation of the report, the mortgage might be declared void as to 
 the homestead thus set off, and good as to the residue. Dye v. Mann, 
 10 Mich., 291. 
 
 2006. Homestead in land contracted for. A home- 
 stead may be claimed in land of which a party is in possession, under a 
 contract to purchase. And the vendee, in such case, if a married man, 
 cannot alienate his interest in the land under the contract without his 
 wife joining with him. McKee v. Wilcox, 11 Mich., 358. 
 
 2007. If the husband neglects or refuses to perform such a contract, 
 his wife may perform it for him. Ibid. 
 
 2008. Accordingly, where a married man, who was in possession of 
 land not exceeding in quantity and value what is exempt from execu- 
 tion as a homestead, under a contract to purchase the same, surren- 
 dered and cancelled his contract of purchase without the assent of the 
 
 349 
 
§ 3016 HUSBAND AND WIFE. 
 
 wife, it was lield tliat sucli surrender was invalid, and that the wife 
 might file a bill in equity in her own name, and have a specific per- 
 formance of the contract. Ibid. 
 
 3009. The decree in such a case should be that the land be con- 
 veyed to the husband, but subject to a lien in favor of the wife for the 
 amount she pays in fulfilling the contract. lUd. 
 
 HUSBAND AND WIFE. 
 
 3010. Deed by frife. Before the statutes were passed giving 
 to a married woman full control of her property, a deed executed by 
 her without her husband joining in it, was void. Ooffv. Thompson, 
 Har. Ch., 60. 
 
 3011. But in case of a conveyance by her since the statute of 1855 — 
 Comp. L., § 3392 — it is not essential that the husband join in or assent 
 to the deed, notwithstanding she was owner of the land at the time the 
 statute was passed. Varr v. Sherman, 11 Mich., 33. And see Watson 
 V. Thurler, 11 Mich., 457. 
 
 3013. Conveyance by husband to nvite. Under the 
 present statutes a deed of lands may be made by a husband directly 
 to his wife without the intervention of any third person. Amperse v. 
 Bordeno, 14 Mich. 
 
 3013. Hnsband'g rlgbt In irife's property. A legacy 
 left to a married woman was held, before the statutes of 1844 and 1855 
 — Comp. L., §§ 8289 and 3292 — to be liable to an attachment issued 
 against her husband ; but the attaching creditor must take it subject to 
 her equity, which is to have the whole, or so much as the Court of 
 Chancery may see fit, set apart to her for her support. WestbrooJc v. 
 Comstock, Wal. Ch., 314. 
 
 3014. The wife is not entitled to compensation from the husband's 
 estate for personal property which she brought to him upon marriage, 
 unless there was an ante-nuptial contract respecting it, securing it to 
 her after marriage. Cranaon v. Cranson, 4 Mich., 230. 
 
 3015. IV^ffe's control of taer property. Held, that al- 
 though by § 5 of article 18 of the constitution, the real and personal 
 estate of every female acquired before marriage, and all property to 
 which she may afterwards become entitled, by gift, &c., shall remain 
 the estate, &c., of such female, and not be liable for her husband's 
 debts, yet that she was not empowered by said section to sell and dis- 
 pose of the same without her husband's consent. Brown v. Fifidd, 4 
 Mich., 333. 
 
 3016. But since said statute of 1855, she has the same power, in all 
 respects, over lier property that she would have if unmarried. Stark- 
 
 350 
 
HUSBAND AND WIFE. § 2022 
 
 weather v. Smith, 6 Mich., 377 ; Watson v. Thwrber, 11 Mich., 457 ; Peoj^ 
 V. Horton, 4 Mich., 67 ; Durfee v. MeOlurg, 6 Mich., 223. And persons 
 obeying her directions in removing her personal property from the 
 possession of her husband, are not liable to an action by the husband 
 for so doing. iStarkweather v. Smith, 6 Mich., 377. 
 
 2017. She may make a gift of her property to her husband ; but 
 when he claims that a gift has been made, the burden of proof is upon 
 him to establish it. Penniman v. Perce, 9 Mich., 509 ; Wcdes v. New- 
 bould, 9 Mich., 45; Durfee v. McClwrg, 6 Mich., 223. See as to such a 
 gift, Stiles V. Stiles, 14 Mich. 
 
 201§. Where complainant, a married woman, made an uncon- 
 ditional assignment of a mortgage to defendant, and delivered it to 
 her husband, who delivered it over to defendant, and the latter gave 
 the husband a receipt, stating that the mortgage was received of the 
 husband as collateral security for a debt owing by him to defendant, 
 and there was no evidence of any negotiations between complainant 
 and defendant, or of any understanding on her part tliat the transfer of 
 the mortgage was to be upon any condition, or of any instructions by 
 her in reference to it ; it was held that the Court could not say, from 
 these facts, that the assignment was intended by complainant as secu- 
 rity only, and not to be absolutely passed to defendant. Durfee v. 
 McOlurg, 6 Mich., 223. 
 
 2019. Complainant's husband having made an arrangement of tlie 
 debt secured by the assignment, and agreed with defendant that the 
 latter should have and retain an absolute title to the mortgage ; it was 
 held that this arrangement was binding upon complainant, and that she 
 could not require defendant to re-assign to her the mortgage. lUd. 
 
 2020. The property of the wife does not become the husband's by 
 her permitting him to have possession of and use it. He cannot acquire 
 it except by gift or purchase, and that gift or purchase must be estab- 
 lished by some other evidence than that of use and possession. So held 
 in a suit between the wife's administrator and the husband. WTiite v. 
 Zane, 10 Mich., 333. 
 
 2021. Where the husband who acted as agent in making a compro- 
 mise by which she was to receive certain lands, took the deed thereof 
 in his own name, and afterwards sold the same in his wife's lifetime ; 
 in a suit between him and the wife's administrator, it was held that the 
 deed of the lands made to him, in the absence of proof that it was so 
 made by the wife's direction, consent or knowledge, was no evidence of 
 a gift to him, and warranted no presumption against the right of the 
 administrator. Wales v. NewbovM, 9 Mich., 45. 
 
 2022. The wife may give a mortgage to secure the debt of the hus- 
 band. Watson V. Thurher, H Mich., 457. 
 
 251 
 
§ 8031 HUSBAND AND WIFE. 
 
 2023. If a married woman willingly allows her separate property 
 to be so mixed and mingled with that of her husband as iiot to be dis- 
 tinguishable, or acquiesces in its being so mingled, such property, as to 
 the husband's creditors, is to be treated as relinquished to the husband. 
 Oloii^ V. Aleott, 11 Mich., 470. 
 
 2024. Said statute of 1855 does not empower a married woman to 
 carry on, on credit, a general trade or business — lilie that of the pur- 
 chase of wheat and the manufacture and sale of flour — so as to make 
 the proceeds of the business her own. Ibid. 
 
 2025. Accordingly, where a married woman was owner of a flour- 
 ing mill, and her husband, assuming to be her agent, carried on in the 
 mill the business of buying and manufiicturing wheat, and selling flour, 
 mill feed, &c., as wpll as doing custom grinding — ^the business amount- 
 ing to from $50,000 to $100,000 a year, and being done mostly on capital 
 borrowed on the credit of the business — it was held that the property 
 acquired in the business was not protected by this statute from being 
 liable to the debts and obligations of her husband. Ibid. 
 
 2026. Settlement on ifife. Held, before said statute of 1844, 
 that a settlement after marriage, on the wife, of property belonging to 
 her before marriage, in pursuance of ante-nuptial parol agreement, was 
 void as against creditors ; the promise to make such settlement being 
 founded solely upon the consideration of marriage, and therefore within 
 the statute of frauds (Code 1833, p. 342, § 10). Wood v. Savage, 2 Doug., 
 316 ; reversing same case, Wal. Ch., 471. 
 
 *2027. Post-nuptial settlements, by the husband upon the wife, are 
 good, if made without fraud, by a party not indebted at the time, or 
 whose debts are trifling compared with his property. Beaoh ». White, 
 Wal. Ch., 495. 
 
 202§. If a husband who is insolvent at the time causes real estate 
 to be conveyed to his wife, the conveyance will be void both as to 
 existing and as to subsequent creditors. Ibid. 
 
 2029. Conveyance in fraud of dovrer. A deed given by 
 a husband to his sons, shortly before marriage, without consideration, 
 and kept secret until after the marriage, is fraudulent as to the wife, 
 and does not bar her right of dower. Cranson v. Granson, 4 Mich., 330. 
 
 2030. IVife's interest in husband's personalty. A wife 
 cannot claim a distributive share in property transferred by the hus- 
 band by bill of sale and actual delivery before his death. And it is 
 immaterial whether the transfer was a gift, or a sale for a consideration. 
 Ibid. 
 
 2031. Suit for wife's property. Held, in a suit brought in 
 1854, by the husband alone, for personal property acquired by the wife 
 before her marriage, that the wife should have been joined; and that it 
 
 2S8 
 
IMPRISONMENT FOR DEBT. § 3037 
 
 was not necessary to plead the non-joinder in abatement. Brovm v. 
 Fifdd, 4 Mich., 332. 
 
 2033. Action for Injury to iwlfe. In an action by husband 
 and wife for an assault upon the wife, no act or words of the husband, 
 unless the wife was privy to or participated in them, can be proven in 
 mitigation of damages. Everts v. Mverts, 8 Mich., 580. 
 
 2033. 'Wife as agent of tlie husband. The wife, in the 
 absence of the husband, is his agent for the purpose of exercising the 
 usual and ordinary control over his property, unless it be expressly 
 shown that he has constituted some other person his agent for that 
 purpose. She has a right to enter and remaia in her husband's house, 
 if she does so without breach of the peace. People v. Morton, 4 Mich., 67. 
 
 2034. Action by fvife for exempt property. Under the 
 statute — Comp. L., § 3294 — which provides that in oases where the 
 property of the husband cannot be sold, mortgaged, or otherwise in- 
 cumbered without the consent of the wife, or when his property is ex- 
 empted from sale on execution, the wife may bring an action in her own 
 name, with the like effect as in cases of actions in relation to her sole 
 property, the action brought by her cannot be defeated by showing that 
 the property was turned out by the husband to be levied upon. King 
 V. Moore, 10 Mich., 538. 
 
 IMPRISONMENT FOR DEBT. 
 
 2033. The act abolishing Imprisonment for debt — Laws 1839, 
 p. 76 ; Comp. L., Ch. 166 — operated upon the remedy to enforce cim- 
 tracts made before it took effect. Branson v. Newberry, 2 Doug., 38. 
 
 2036. Debt by B. against N., on a recognizance of special bail. The 
 recognizance was entered into, in 1837, in an action upon contract, 
 brought by B. against one C, wherein judgment was rendered against 
 C. in 1843, upon which ca sa. was afterwards issued, and returned rum 
 est inventus. N. moved that an exoneretur be entered upon the recogni- 
 zance. Held that the motion should be granted, for said act of 1839 
 operated to prohibit the arrest or imprisonment of d. upon any process 
 issued upon the judgment against him, and thereby rendered the recog- 
 nizance void. Ibid. 
 
 2037. Upon the hearing of the motion, it appeared that the demand 
 for which the judgment was rendered, was moneys collected by C. for 
 B. on a claim against the government, which he had been employed by 
 B. to procure to be adjusted and paid ; that C. was not an attorney at 
 law ; and that he refused to pay over the moneys so collected. It was 
 held,that the action was not "for misconduct or neglect in a profes- 
 
 253 
 
§ 2044 INFANT. 
 
 sional employment within the purview of the second section of said 
 act. Ibid. 
 
 203§. It also appeared that C. was, and ever since the action against 
 him had been, a non-resident of the State, without property in the 
 State out of which the money could be made to satisfy the judgment, 
 but that ever since the rendition of the judgment he had had property 
 and effects elsewhere which he refused to apply to its pajrment. Held 
 that these facts in no way affected the liability of N. on the recognizance. 
 lUd. 
 
 3039. The TJ. S. Process Act— 5 Stat, at Large, 331— operates to 
 prohibit imprisonment for debt on process from the United States 
 Courts, except in the cases allowed by the State law. Ward v. Cogens, 
 3 Mich., 252. 
 
 2040. The provision in the State Constitution— Art. 6, § 38 — ex- 
 cluding cases of fraud from the prohibition of imprisonment for debt, 
 includes as well cases where the fraud is made use of to avoid payment 
 of the debt, as those where there was fraud in contracting the debt. 
 [Chbistianct, J.] Bromley «. People, 7 Mich., 472. 
 
 3041. A petition for a discharge under said statute, which 
 only professes to set forth in the schedule such property as is not eX' 
 empt from execution, and the affidavit verifying which omits the clause 
 required by the statute to be contained therein, " that I have in no in- 
 stance created or acknowledged a debt for a greater sum than I honestly 
 owed," is so defective as to give the officer to whom it is presented no 
 jurisdiction to proceed thereon. Young ». Stepheng, 9 Mich., 500. 
 
 INFANT. 
 
 3042. A mortgage given by an infant feme covert, to secure the debt 
 of her husband, is absolutely void, and not merely voidable. Chandler 
 c. MeKinney, 6 Mich., 217. 
 
 2043. An agreement with a minor to give him board, clothing and 
 schooling in payment for his labor, if reasonable under all the circum- 
 stances, or not so unreasonable as to be evidence of fraud or undue ad- 
 vantage, cannot be repudiated by the minor after it has been executed. 
 Squire v. Hydliff, 9 Mich., 274 
 
 3044. Affirmance. Where an infant receives a conveyance of 
 land, and gives back a mortgage for the purchase price, he affirms the 
 mortgage if he claims to retain the land as his own after coming of age. 
 He cannot retain the land and at the same time disaffirm the mortgage 
 on the ground of infancy. Toung v. McKee, 13 Mich., 552. 
 254 
 
INNKEEPER. § 2050 
 
 INJUNCTION BOND. 
 
 2045. An injunction bond is a perfect obligation as soon as filed 
 with the register in chancery, in compliance with the statute. Lothrop 
 V. Southworth, 5 Mich., 436. 
 
 2046. Where action is brought upon an injunction bond without 
 procuring it from the flies, and without obtaining an order of the Circuit 
 Judge to take it from the files for prosecution, the want of such order is 
 nodefense to the suit. Ibid. 
 
 204'!'. The decree of the Court of Chancery, awarding damages in an 
 injunction suit, is conclusive of the amount of damages in a subsequent 
 action upon the injunction bond. And defendants in such action cannot 
 be permitted to show in defense, that in fact plaintiff sustained no dam- 
 ages, or less than was awarded him. Ibid. 
 
 204§. The surety in an injunction bond, having, by his obligation, 
 undertaken to abide the decree of the Court of Chancery, and pay such 
 damages as may be awarded against his principal by reason of the issu- 
 ing of the injunction, is bound by such decree, and can raise no question 
 of its correctness in an action brought upon the bond. Ibid. As to 
 when a judgment against one of two joint obligors is not evidence 
 against the other, see Thompson v. Bichards, 14 Mich. 
 
 INNKEEPER. 
 
 2049. LilaMIlty of : Mriio i§ a "guest." In order to make 
 one liable as innkeeper at the common law, for goods lost at his inn, it 
 must appear that he was acting in the capacity of innkeeper on the oc- 
 casion when the goods were received, and that the owner was his guest; 
 in other words, that the latter visited the inn for purposes which the 
 common law recognizes as the purposes for whidh inns are kept. Car- 
 ter ». Sobbi, 12 Mich., 52. 
 
 2050. A ball was given by a fire company at the inn of defendant, 
 the defendant furnishing dancing room, supper and dressing room, and 
 being paid therefor by the company at the rate of one dollar for each 
 supper ticket. The ball tickets were sold by the fire company at two dol- 
 lars each, and these were taken up at the door of the dancing room by a 
 person employed by the fire company, and supper tickets given in their 
 stead. The plaintiff, who was a guest at another inn in the town, went 
 to the ball, purchased a ticket therefor at the baggage room, delivered 
 his overcoat, fur collar and gloves at the office of the hotel to the clerk, 
 and registered his name, and remained at the ball until it broke up in 
 the morning, when, on calling for his overcoat, collar and gloves, they 
 could not be found. During the night the plaintiff had spent some 
 
 355 
 
§ 2058 INSURANCE AGAINST FIRE. 
 
 money, for liquor and cigars, at a saloon kept by defendant in connec- 
 tion with the hotel. It was held that these facts did not show the re- 
 lation of innkeeper and guest to exist between the defendant and the 
 plaintiff ; that the former did not receive the goods in his capacity as 
 innkeeper, but merely as an ordinary bailee. Ibid. 
 
 INSURANCE AGAINST FIRE. 
 
 3051. A personal contract. Insurance is a personal contract, 
 and does not pass with the title of the property insured. Disbrow v. 
 Jones, Har. Ch., 48. 
 
 3052. Concealment of facts. Where the fact of a pending 
 litigation, affecting premises insured, was not communicated to the in- 
 surer, at the time of executing the policy, it was held that the omission 
 to disclose did not vitiate the policy. SUl v. Lafayette Insurance Co., 2 
 Mich., 476. 
 
 2054. Conditions. A policy of insurance, one of the conditions 
 of which is that, " in case of any sale, transfer or change of title in the 
 property insured, such insurance shall be void and cease," is avoided 
 by a conveyance which is absolute in form, though given as security for 
 a debt merely. Western MassacJtusetts Insurance Co. v. Biker, 10 Mich., 
 279. 
 
 2035. And where the insurance is upon a single building, and the 
 conveyance is of an undivided interest only, the conveyance avoids the 
 whole policy, notwithstanding the interest of the insured remaining un- 
 conveyed is shown to exceed in value the sum insured. Ibid. 
 
 3056. It was provided in the policy that it should be void if the pre- 
 mises were used for storing or keeping therein any articles included in 
 certain classes of hazards annexed to the policy, "except as herein spe- 
 cially provided, or hereafter agreed to by the insurers upon this policy." 
 It was held that where a stock was insured under the general designa- 
 tion of " groceries,'" which included some of these hazardous articles, 
 the insurance by this designation did specially provide for them " in 
 writing upon the policy." Niagara Fire Insurance Co. ». De Graff, 12 
 Mich., 124. 
 
 3057. A clause in a fire policy which provided that if gunpowder, 
 or other articles subject to legal restriction, should be kept in greater 
 quantities or in a different manner than was provided by law, the policy 
 should be void, was held to have reference only to articles of an intrin- 
 sically dangerous nature, as liable to cause injury accidentally or by 
 carelessness, and not to refer to liquors, the traflSc in which was 
 made illegal by statute. Ibid. 
 
 303S. The policy provided that the keeping of gunpowder, " with- 
 256 
 
INSURANCE AGAINST FIRE. § 3064 
 
 out written pennission in the policy" shoiild render it void. It was 
 held that if the agent taking insurance on a stock of goods knew that 
 gunpowder was kept and to be kept, the keeping it would not render 
 the policy void, whether permission to keep it was indorsed or intended 
 or neglected to be indorsed or not. Peoria Marine and Fire Insurance 
 Co, V. HaU, 12 Mich., 302. 
 
 2059. Notice of this fact to the agent was notice to the principal ; 
 and by taking the premium and issuing the policy, the insurer must be 
 regarded as having waived the condition which prohibited gunpowder 
 being kept. Ibid. 
 
 2060. By one of the conditions attached to a Are policy it was pro- 
 vided that no suit should be brought upon it unless within twelve 
 months next after the loss ; and in case any suit should be commenced 
 after the expiration of twelve months, the lapse of time should be 
 deemed and taken as conclusive evidence against the validity of the 
 claim. It was held that if such a condition was valid at all it was valid 
 as a contract only ; and that the limitation fixed by it must, upon the 
 principle governing contracts, be more flexible in its nature than one 
 fixed by statute, and liable to be defeated or extended by any act of the 
 insurer which prevents action being brought within the prescribed 
 period. Ibid. 
 
 2061. Held further, that the insured had the whole of the twelve 
 months within which to commence suit, and that the limitation must 
 rest upon the tacit condition, without which it could not be valid, that 
 the insurer should be accessible to the service of process by which suit 
 may be commenced against him, if not for the whole period, at least 
 for a sufficient time immediately preceding its close to enable the insured 
 to commence his suit in the ordinary legal mode. Ibid. 
 
 2062. And process having been issued before the expiration of the 
 twelve months, returnable two days after their expiration, and no agent 
 of the insurer — a foreign corporation — being found in the county upon 
 whom to make service, and new process being issued on the retifrn of 
 the first, it was held that the failure to commence suit within the 
 twelve months was sufficiently excused; and the second suit, under 
 the circumstances, was brought in season. Ibid. 
 
 2063. In§urance by one part o^vner. If one partner in- 
 sure the (Partnership property against loss by fire in his own name 
 only, and it does not appear that the insurance was really intended for 
 the benefit of the firm, the premium paid from the partnership funds, 
 and the transaction subsequently ratified by the other partner, the policy 
 will cover only the individual interest of the party insuring. Ibid. 
 
 2064. It makes no difference in this respect that the agent of the in- 
 surer knew the interest of the parties, and that it was the intention of 
 
 17 257 
 
§ 3071 IN8UEANCE AGAINST FIRE. 
 
 both the insurer and insured, at the time of issuing the policy, that the 
 insurance should cover the whole. Ibid. 
 
 3065. The rule may be otherwise where the partner making the in- 
 surance has made advances to the firm, which, by agreement, are to 
 constitute a lien on the property insured. lUd. 
 
 3066. Where a policy when made covers the interest of one part- 
 ner only, the remaining interest cannot be brought within it by the 
 partner insured subsequently becoming the owner of the whole. Ihid. 
 
 3067. Insurance of liquors. Spirituous liquors illegally l^ept 
 for sale may notwithstanding be lawfully insured against destruction by 
 Are. The risks insured against are not the consequences of illegal 
 acta, but of accidents. Niaga/ra Fire Insurance Co. v. De Qraff, 12 Mich., 
 124. 
 
 3068. Description of insured property. Where an in- 
 surance was effected on " groceries," and there was evidence that the 
 insurer was informed that alcohol and spirituous liquors constituted a 
 part of the stock, it was held that whether they were included in the 
 term " groceries" in the policy was a question of fact for the jury. 
 Ibid. 
 
 3069. RencTiral. Each renewal of a policy of insurance is a new 
 contract, and is subject to the local laws in force at the time of the 
 renewal. Brady v. Northwestern Insurance Co., 11 Mich., 425. 
 
 3070. Yf liat is insured against. The policy covers all loss 
 which necessarily follows from the occurrence of a Are, whenever the 
 injury arises directly or immediately from the peril, or necessarily 
 from incidental and surrounding circumstances the operation and in- 
 fluence of which could not be avoided. Ibid. 
 
 3071. Rebuilding clause. A wooden building situated witliin 
 the fire limits of Detroit was injured by Are, and, by the ordinances of 
 that city, could not be repaired without the consent of the Common 
 Coijpcil. This consent was refused. The building was insured for 
 $2,000, and the policy contained a clause that, in case of loss or 
 damage to the property, it should be optional with the company to 
 rebuild or repair the building within a reasonable time. The cost of 
 repairing the building would be much less than the amount of the 
 insurance, but without leave to repair, the building, which before the 
 fire was worth $4,000, would now be worth less than $100. It was 
 held that the insured was entitled to recover the whole insurance, 
 and the insurers could not discharge their obligation by tendering 
 tlie cost of repair. Ibid. 
 
 268 
 
JOINT DEBTORS. § 2078 
 
 INTEREST. 
 
 2072. A township is not liable to pay interest on damages as- 
 sessed for laying out a highway. People v. Toionship Board of La 
 Orange, 3 Mich., 187. 
 
 2073. WTien payable. Where credit is given for a specified 
 period, -without any agreement as to interest, interest is not allowable 
 until the term of credit has expired. And if the term of credit is for 
 an indefinite time, interest is not allowable until after demand of pay- 
 ment. Beardslee v. Morton, 3 Mich., 560. 
 
 207-'l. Compound intere§t. The non-payment of an instal- 
 ment of interest when due does not convert it into principal, nor en- 
 title the creditor, without express agreement of the debtor, to collect 
 interest upon it Van Husan v. Kanoiise, 13 Mich., 308. 
 
 JOINT DEBTORS. 
 
 3075. WTien Judgment a merger. Plaintiff having recover- 
 ed a judgment in Ohio against one of the defendants, on a promissory 
 note signed by them in their partnership name, brought action on the 
 same note against both in this State. The defendants set up in de- 
 fense the rendition of the judgment in Ohio. Held that such judgment, 
 although against one of the defendants only, was a merger of the note, 
 and an extinguishment of the joint liability of the defendants ; and that 
 either defendant might avail himself of such extinguishment in bar of a 
 recovery in a suit on the note against both. Candee v. Cla/rk, 3 Mich., 
 255. 
 
 2076. Where suit was brought in the State of New Tork against 
 two joint debtors, one of whom was not served with process, and did 
 not appear in the action, and judgment in form was rendered against 
 both under the joint debtor act, it was held, that this judgment was not 
 an extinguishment of the demand sued upon, and that an action brought 
 subsequently in this State against the two, was properly brought on 
 the origiDal demand instead of upon the judgment. Bonested v. Todd, 9 
 Mich., 371. 
 
 2077. Garnishee proceedings against. Where one of three 
 joint debtors was proceeded against by garnishee process, and a judg- 
 ment recovered, it was held that the judgment was void, and no bar 
 to a subsequent suit against all three on the joint demand. WetlienDoa; 
 V. Paine, 2 Mich., 555. 
 
 207§. Joint and several note. Proof of execution by 
 a party not sued is unnecessary. In a suit against one of the ma- 
 
 259 
 
g 2085 JUDGMENTS AND EXECUTIONS. 
 
 kers of a joint and several promissory note. Chandler «. Lawrence, 3 
 Mich., 261. 
 
 JUDGE OF PROBATE. 
 
 2079. Appointment to fill vacancy. A Judge of Probate 
 was re-elected, but died before the commencement of his new term, 
 and an appointment was made by the Governor to fill the vacancy. 
 January 1st (when the new term would commence), the Governor, on 
 the supposition that there was now a new vacancy, made a new ap- 
 pointment. It was held that the second appointment was void, and that 
 under the Constitution the person first appointed would hold untU a 
 successor was elected and qualified. Peofie v. Lord, 9 Mich., 227. 
 
 20§0. Held further, that if the second appointment could be treated 
 as an attempt at a removal of the first appointee, it would be void, as 
 the Governor has no power to remove without cause Ibid. 
 
 20§1. The Governor could not, by any provision in the commission, 
 limit the first appointment, or make its continuance depend upon his 
 pleasure. Ilnd. 
 
 2052. The appointment so made ceases when a successor has been 
 elected and qualified in pursuance of an ottler of the Board of Su- 
 pervisors. And the act of February 17, 1857 — Comp. L., § 491 — ^which 
 provides that when a vacancy in a county oflSce shall have been filled 
 by appointment of the Governor, the appointee shall hold for the unex- 
 pired portion of the regular term, cannot constitutionally apply to the 
 office of Judge of Probate. Ibid. 
 
 JUDGMENTS AND EXECUTIONS. 
 
 2053. Judgment in name of decea§ed person. A judg- 
 ment rendered in favor of two plaintiffs after the death of one of them, 
 cannot be sustained by showing that the deceased plaintiff left a son 
 surviving him who was living when judgment was rendered. TeUer c. 
 Wether^, 9 Mich., 464. 
 
 30§4. §nit on stayed Judgment. An action of debt lies on 
 a judgment recovered before a justice of the peace, immediately on its 
 rendition, notwithstanding execution upon it has been stayed pursuant 
 to the statute. McDonald v. Butler, 3 Mich., 558. 
 
 2083. Title by judgment. A judgment for the plaintiff in 
 trespass de bonis asportatis, and the satisfaction thereof, will vest the 
 right of property in the goods in defendant, and his title will relate back 
 to the time when suit was commenced ; but this cannot affect third per- 
 sons, so as to make them trespassers, as against defendant, for acts 
 260 
 
JUDGMENTS AND EXECUTIONS. § 2094 
 
 done by them intermediate the commencement of suit and the rendition 
 of judgment. Bacon v. Kimmel, 14 Mich. 
 
 2086. Execution: mistake in. The omission in a justice's 
 execution of the year in which the judgment was rendered, will not 
 vitiate the execution, it being in all other respects regular. PerMns v. 
 Spalding, 2 Mich., 157. 
 
 2087. Irregular execution. An dias fi. fa. issued on return 
 of a previous execution levied upon real estate which remained unsold 
 for want of bidders, is irregular merely, but not void. Spafford v. Beach, 
 3 Doug., 150. 
 
 2088. mistake in levy. A constable levied upon wheat on the 
 ground, on the farm of C, in the township of Dover, which farm was 
 then occupied by the defendant in the execution ; and made a correct 
 indorsement of the levy on the execution, except that by mistake the 
 name of the township was stated as Madison. The mistake was held 
 not to vitiate the levy. PerMns v. Spalding, 2 Mich., 157. 
 
 2089. A constable's notice of sale need not state whose 
 property it is that is advertised, nor who is the defendant in the exe- 
 cution. Ibid. 
 
 2090. A constable's sale of standing wheat, made within sight 
 of the wheat, and of the road corners where it was advertised to take 
 place, but 30 or 35 rods therefrom, is substantially at the place ap- 
 pointed. Ibid. 
 
 2091. It is the duty of a constable to sell property in such lots or par- 
 cels as to command the highest price ; and if he wilfully sacrifices the 
 property by disregarding his duty, he is liable to the party injured ; but 
 he has a large discretion. Where three parcels of wheat, separated only 
 by fences, containing 25 acres in all, were sold together, and there was 
 no reason to suppose they would have sold better separately, the sale 
 was held valid. Ibid. 
 
 2092. Satisfaction by execution : Judgments against 
 Joint trespassers. Where separate judgments are obtained against 
 two or more joint trespassers, the suing out ef execution on one of 
 them is an election by the plaintiff to enforce that judgment ; and no 
 action will afterwards lie on the others. Boardman v. Acer, 13 Mich., 
 77. 
 
 2093. Satisfaction by levy. A levy on real estate is not a 
 prima facie satisfaction of the judgment. Spafford v. Beach, 2 Doug., 
 150. But a levy on chattels is. Farmers and Mechanics' Bank v. Kings- 
 ley, 2 Doug., 879. 
 
 2094. 'IVtaat may be sold : school lands. Since the act of 
 1851 — Comp. L., § 3451 — the interest of any purchaser of primary 
 
 261 
 
§ 2104 JUDGfMENTS AND EXECUTIONS. 
 
 school lands, holding by certificate of purchase, is liable to levy and 
 sale under executions. Kerclwual v. Wood, 3 Mich., 509. 
 
 2095. Choses in action cannot be levied upon or sold. People 
 V. Auditors of Wayne Co., 5 Mich., 223. 
 
 2096. Tru§t estates are not subject to levy and sale on execu- 
 tion in this State. Trask v. Green, 9 Mich., 358 ; Maynard ». Hosldns, 9 
 Mich., 435 ; Oorham v. Wing, 10 Mich., 486. 
 
 2097. Since the Statutes of 1846, vrhere land is purchased by one in 
 the name of another, no trust results to the purchaser, and the trust in 
 favor of creditors cannot be enforced by levy and sale on execution. 
 Ibid. 
 
 209§. Proceedings to a sale. A non-compliance by the 
 sheriff with the requirements of the statute in regard to the levy, ad- 
 vertisement, or sale of real estate, is a mere irregularity, and must be 
 complained of in due time, by motion, or it will be waived. Spafford «. 
 Beach, 2 Doug., 150. "^ 
 
 2099. Chattel interests in lands are to be sold on execution as 
 personal estate. A sale of an estate for years in lands, made in accord- 
 ance with the statutory provisions for the sale of real estate, is void. 
 BuM 41. Kenyan, 11 Mich., 249. 
 
 2100. Fraudulent purchase. Where a purchaser at a sheriff's 
 sale, by a fraudulent combination with the sheriff and judgment debtor 
 to prevent competition at the sale, is enabled to purchase property at 
 much less than its value, the sale is void as to creditors. AMrich «. 
 Maitland, 4 Mich., 205. 
 
 2101. Resale for inadequate price. And where, after such 
 a fraudulent sale, the same property was sold by another officer, on an 
 execution in favor of another creditor, and the latter bid it off at an 
 inadequate price, it was held that this inadequacy would not defeat the 
 purchase ; the cloud cast upon the title by the former sale being a suffi- 
 cient answer to the objection of inadequacy. Ibid. 
 
 2102. Deed of lands to assignee of purchaser. Under 
 the act of 1851 — Comp. L., § 3151 — one who had previous to the pas- 
 sage of the act become equitably vested with the title which the pur- 
 chasers at an execution sale acquired by the expiration of the time to 
 redeem, is entitled in equity to a conveyance of the property from the 
 successor of the officer who made the sale. Whipple v. Farrar, 3 Mich., 
 486. 
 
 2103. Said act is not liable to the objection that it creates any new, 
 or divests any pre-existing rights ; for although retrospective in its ope- 
 ration, it is only so in providing a remedy where none existed before. 
 Ibid. 
 
 2104. A motion to set aside an execution, and proceedings under it, 
 
 263 
 
JUDGMENTS AND EXECUTIONS. § 2113 
 
 for irregularity merely, made fiye years after the sale of real estate by 
 virtue of the execution, is too late. Spafford v. Beach, 3 Doug., 150. 
 
 2105. Evidence of purchaser's right. The title of a pur- 
 chaser of real estate sold on execution, is not affected by the insuffi- 
 ciency of the officer's return. The certificate of sale and the deed — not 
 the return — are the evidence of his title. Ipid. 
 
 2106. To pass the title to real estate sold on execution under the 
 appraisal law of 1841, it was not necessary it should appear from the 
 officer's return to the execution, that either of the appraisers was chosen 
 by defendant, or that he had an opportunity to choose one. Crane v. 
 Ha/rdy, 1 Mich., 56. 
 
 2107. The settled doctrine as to sales under decrees and judgments, 
 is, that the purchaser is not concerned with anything except the judg- 
 ment, levy and sale. All other questions are between the parties to the 
 judgment and the officer making the sale. Ibid. 
 
 210S. Under the Revised Statutes of 1838, a sale of lands on execu- 
 tion did not divest the title of the judgment debtor until consummated 
 by deed. And a deed given before the time of redemption expired, was 
 void. Qorham v. Wing, 10 Mich., 487. 
 
 2109. Redemption under Statutes of 183S. The time 
 for redemption under said Statutes, was to be computed exclusive of the 
 day on which the sale was made. Hid. 
 
 2110. On sales made by the United States Marshal in Michigan, on 
 demands accruing in 1842, for moneys collected by a public officer, or 
 for misconduct or neglect in office, two years redemption was allowed. 
 lUd. 
 
 2111. Redemption by judgment creditors. Judgment 
 creditors who were entitled, under § 3147 of Compiled Laws, to ac- 
 quire the rights of a purchaser of premises sold on execution, applied 
 to the purchaser for that purpose, and took from him an assignment of 
 his certificate of sale, but without having presented him with the statu- 
 tory proofs of their title to acquire such rights. Held, that where the 
 application was thus made to the purchaser himself, and evidences pro- 
 duced which were satisfactory to him, it was sufficient ; though if the 
 application had been made to the register of deeds or sheriff, the statu- 
 tory proofs must have been produced. People v. Fralick, 12 Mich., 234. 
 
 2112. Held, further, that the creditors, by thus taking an assign- 
 ment of the certificate of sale, did not debar themselves from holding as 
 judgment creditors under the statute ; and that a subsequent creditor 
 applying to become purchaser of the premises under the statute, must 
 pay their judgment as well as the original bid. Ibid. 
 
 2113. Exemptions. It is competent for the legislature in passing 
 a statute increasing the exemptions from executicm, to make it apply to 
 
§ 2120 JUDGMENTS AND EXECUTIONS. 
 
 (»ntracts entered into before its passage. RockwtsB, v. HubbeCFg Admin- 
 istrators, 2 Dong., 197. 
 
 2114. — several kinds of basiness. Where a debtor claiming 
 the exemptions allowed by Comp. L., § 4465, carries on sereral kinds 
 of business, the exemption covers only such property as is requisite for 
 .carrying on that particular business in which he is principally engaged. 
 MorriU, v. Seymour, 3 Mich., 64. 
 
 3115. Exemption to specified amount. Where property 
 which is exempt from execution to a specified amount or value is levied 
 upon, the oflBcer, if he would protect himself from the consequences of 
 an action for taking it, must cause an inventory and appraisement of 
 the whole of such property belonging to the debtor to be made, aiid the 
 amount exempt to be set out to the debtor. ElUiott n. Whitmare, 5 Mich., 
 532. 
 
 3116. The statute exempting from execution a sufScient quantity of 
 hay, grain, feed and roots for properly keeping for six months the ani- 
 mals specified as exempt from execution, does not exempt any more of 
 those articles than may be necessary for keeping such of the animals 
 mentioned as the debtor has at the time of the levy. King v. Moore, 10 
 Mich., 538. 
 
 3117. Whether the statute exempting ''provisions for the comfortable 
 subsistence of a householder and family for six months," would exempt 
 growing crops of com and potatoes recently planted, and which have 
 just become visible above ground, quere. I6id. 
 
 ■ 311§. Order for new execution. Where lapse of time 
 since issuing an execution renders it necessary to apply to the Court for 
 leave, it cannot properly be granted where such delay has intervened 
 that no action will lie on the judgment. Jerome v. WiUiams, 13 Mich., 
 521. 
 
 3119. One became surety for stay of execution upon a justice's 
 judgment. Executions were issued upon the judgment, and returned 
 unsatisfied. Some years afterwards a transcript of the judgment was 
 filed in the office of the county clerk. More than four years after the 
 filing of the transcript, and when more than six years had intervened 
 since the return of the last execution on the stay, the original stay was 
 filed in the ofBce of the county clerk, and the Circuit Court, on the 
 application of the judgment creditor, ordered a new execution against 
 both the judgment debtor and the surety. The surety removed the 
 proceedings to the Supreme Court by certiorari, and the order as to him 
 was reversed. Tbid. 
 
 3120. Void Judgment no consideration. Where a mort- 
 gage was given to secure the payment of judgments confessed, which 
 were void for want of compliance with the statute, it was held that 
 
 264 
 
JURISDICTION. § 3129 
 
 the mortgage was without consideration. Av^tin v. Grant, 1 Mich., 490. 
 
 2121. W^hat a judgment decides. An order of the Supreme 
 Court, dismissing a certiorari to a justice, is a decision by that Court 
 that the cause has not been in fact removed from the Justice into that 
 Court, and that the judgment of the justice is in full force. Howwrd v. 
 BoekweU, 1 Doug., 315. 
 
 2122. The judgment of a Court of competent jurisdiction is, as a 
 plea, a bar, and as evidence, conclusive between the same parties 
 and their privies. Wales v. Lym, 2 Mich., Zl^XPrm^ias v. Hdlbrook, 2 
 Mich., 372. ""^ '^ 
 
 2123. Accordingly it was held, that one who had unsuccessfully op- 
 posed the discharge of his debtor as a bankrupt, was estopped after- 
 wards, in a suit brought to recover the debt, in which the discharge 
 was pleaded, from showing that the discharge was fraudulently ob- 
 tained. Wales V. Lyon, 2 Mich., 276. 
 
 2124. Plaintiflf sued a sheriff for taking certain personal property ; 
 and on trial, the sheriff recovered judgment. After the sheriff had sold 
 the property, plaintiff sued the purchaser. Held, that the suit against 
 the sheriff was a bar. Prentiss v. Solbrook, 2 Mich., 372. 
 
 JURISDICTION. 
 
 2125. Rule as to inferior jurisdictions. Inferior juris- 
 dictions, not proceeding according to the course of the common law, are 
 confined strictly to the authority conferred upon them. Wight v. War- 
 ner, 1 Doug., 884 ,- Clark o. Holmes, 1 Doug., 390 ; Chandler v. JSfash, 5 
 Mich., 409. 
 
 2126. The facts necessary to give them jurisdiction must appear 
 afllnnatively in their proceedings, and cannot be presumed. Ibid. 
 
 2127. They must have jurisdiction of the person, by means of the 
 proper process or appearance of the party, as well as of the subject 
 matter of the suit; and when they have not such jurisdiction, their 
 proceedings are absolutely void, and they become trespassers by any 
 act to enforce them. Clark v. Holmes, 1 Dong., 390. 
 
 212S. The want of jurisdiction, either over the person or the sub- 
 ject matter, may be shown by evidence, even when it tends to contra- 
 dict the minutes or docket which the inferior jurisdiction is required to 
 keep as a record of its proceedings. Ibid. But see Facey v. Fuller, 13 
 Mich., 527, where it was held that the recital on the docket of a justice 
 of the peace, that parties appeared and proceeded to trial, was conclu- 
 sive. 
 
 2129. When jurisdiction exists, the proceedings cannot be im- 
 peached collaterally. Clark v. McHmes, 1 Doug., 390. 
 
 265 
 
§ 2137 JURISDICTION. 
 
 2130. 'Wliat are inferior and special Jurisdictions. 
 
 These rules applied to Courts of justices of the peace — Clark «. 
 Holmes, 1 Doug., 390; Wiglit v. Wa/rner, 1 Doug., 384 — to proceed- 
 ings before circuit court commissioners for the dissolution of attach- 
 ments — Chandler v. Wash, 5 Mich., 409 — to proceedings against non- 
 resident defendants for partition in the Circuit Courts in Chancery — 
 Piatt v. Stewart, 10 Mich., 360. 
 
 2131. Court of general jurisdiction. Where the want of 
 jurisdiction appears on the record of a Court of general jurisdiction, the 
 record is a nullity. Grreenvault v. Farmers and Mechanics' Bank, 3 
 Doug., 498; Wilson v. Arnold, 5 Mich., 98; Fa/rrand v. BentUy, 6 
 Mich., 281. 
 
 2132. Sfotice essential. No man's rights can be afiected by 
 legal proceedings, without notice of them, actual or constructive. Buck 
 V. Shearman, 2 Doug., 176. 
 
 2133. IVaiver of jurisdictional defects. A defect of ju 
 risdiction as to the subject matter, cannot be waived by the parties. 
 As where a party notices a cause for hearing in the Supreme Court as 
 on case made, and the paper filed as a case made has never been settled 
 and signed by the Judge as such, the party who has given notice of 
 hearing will not be precluded from moving to dismiss on that ground. 
 Varrand v. BenUey, 6 Mich., 281. 
 
 2134. Where a defect of jurisdiction exists, the defendant does not, 
 by neglecting to take advantage of it on the first opportunity, waive 
 the right to do so, as in case of a mere irregularity; but he may question 
 the proceedings at any time. TurrUl/i). Walker, 4 Mich., 177. 
 
 2135. A defendant moved to quash proceedings before a circuit 
 court commissioner for want of due service of the summons. The 
 commissioner took time for giving his decision ; the complainant stipu- 
 lating to submit the motion without argument, if defendant would 
 plead to the complaint, which he did. It was held that defendant did 
 not, by so pleading, waive his objection to the service. SaUee v. Ireland, 
 9 Mich., 154. 
 
 2136. A confession of judgment before a justice is void un- 
 less in accordance with the statute authorizing it. Clark v. Holmes, 1 
 Doug., 390 ; Beach v. Botsford, 1 Doug., 199 ; Spear v. Carter, 1 Mich., 
 19; WUson v. Davis, 1 Mich., 166. And see ShadboU v. Branson, 1 
 Mich., 85. 
 
 2137. Unauthorized stay of Judgment. A stay of execu- 
 tion having been taken by a justice for six months, where the statute 
 only authorized it to be taken for three, it was held that an execution 
 issued thereon against the surety, after the expiration of the six months, 
 was void. Shadbdtt v. Branson, 1 Mich., 85. 
 
JUSTICES' COURTS. § 3145 
 
 2138. Transfer of Jurisdiction where Court is abol- 
 ished. When the State government was organized, and(the Supreme 
 Court of the Territory abolislied, certain causes pending therein were 
 not transferred to any Court. It was held competent for the legislature 
 to pass an act afterwards transferring these causes to the Supreme 
 Court of tlie State. Scott «. Sma/rfs Mcecutors, 1 Mich., 395. 
 
 2139. Judgment of another State. In an action in one 
 State upon the judgment of a Court of general jurisdiction of another 
 State, no plea or proof can be received in contradiction of any material 
 fact appearing by the record, unless such plea or proof would be re- 
 ceived in an action on the judgment in the State in which it was ren- 
 dered. WUcox V. Kassick, 3 Mich., 165. 
 
 2140. If the record shows a want of jurisdiction, the judgment is a 
 nullity. Ibid. 
 
 2141. If the judgment does not show either that the Court hadj or 
 that it had not jurisdiction, the jurisdiction will be presumed ; but in 
 such case, facts showing a want of jurisdiction may be alleged by plea, 
 and if established, a recovery may be defeated. Ibid. 
 
 2142. When the record shows that the process was not personally 
 served, and that the defendant did not appear personally in the suit, 
 but that an attorney appeared for him and made defense, the author- 
 ity of such attorney to appear for him will be presumed. But whether 
 the authority may be disproved, quere. Ibid. 
 
 JURY. 
 
 2143. Jurors judges of the law in inferior jurisdic- 
 tions. It seems, that in inferior jurisdictions, deriving their authority 
 from the statute, and not proceeding according to the course of the 
 common law, the jury are the judges both of the law and the fact 
 Ghamberlain v. Brown, 8 Doug., 130. 
 
 2144. Juror once rejected not to be resummoned. 
 On an inquest of the value of property required for a railroad, after a 
 juror had been struck from the panel by one of the parties, and the 
 jury completed, it was held that he could not be resummoned by the 
 officer in the place of one who had been excused. In re Detroit and 
 Pontiac B. B. Co., 3 Doug., 367. 
 
 JTJSTICES' COURTS. 
 
 2145. Jurisdiction. A justice's Court, being one of inferior 
 and limited jurisdiction, is confined strictly to the powers conferred 
 upon it, and its proceedings must appear to be within those powers. 
 
 367 
 
§ 3153 JUSTICES' COURTS. 
 
 Wight V. Warner, 1 Doug., 384 ; Clark v. Holmes, \ Doug., 390. Nothing 
 can be presumed in favor of its jurisdiction. Spew v. Carter, 1 Micli., 19. 
 
 2146. The jurisdiction of the justice, in actions on contract to re- 
 cover less tlian $100, is not exclusive. Webb v. Mann, 3 Mich., 139. 
 
 2147. These Courts have no jurisdiction of suits against municipal 
 corporations. Boot ®. Mayor, die., of Ann Arbor, 3 Mich., 433 ; Comp. 
 L., § 3700. The provision in a municipal charter, that the corporation 
 may sue and be sued in all Courts of law and equity, &c., will not con- 
 fer jurisdiction upon them. Such a provision must be understood to 
 mean, in all Courts of law and equity having jurisdiction of the case. 
 Gurney v. Mayor, &c., of St. Clair, 11 Mich., 303. 
 
 2148. llatter§ of form. The Court will overlook matters of 
 form in proceedings before justices of the peace, and regard them ac- 
 cording to the merits. People v. Foote, 1 Doug., 103. 
 
 2149. Where an issue formed upon a plea of not guilty in replevin, 
 was tried by a jury, who returned a verdict as follows : " This jury find 
 for the plaintiflf;" held sufficient. People v. Foote, 1 Doug., 103. And 
 the justice having refused to enter the verdict and render judgment 
 thereon, on the ground that it was insufficient, and awarded a venire de 
 novo, the Supreme Court compelled him by mandamus, to enter the 
 verdict and render judgment. Ibid. 
 
 2150. The finding of a verdict in a justice's Court, is itself, in legal 
 effect, a judgment. Gaines v. Belts, 3 Doug., 98 ; Overall v. Pero, 7 Mich., 
 315. 
 
 2151. The pleadings should be viewed with liberality, techni- 
 calities discountenanced, and substance instead of form required. The 
 object of pleading in any Court is to apprise the opposite party of the 
 grounds of the claim or defense, as the case may be, so that there shall 
 be no misapprehension as to what matters are to be litigated on the 
 trial. And defects will be waived by the defendant if he pleads issu- 
 ably, and goes to trial on the merits. Hurtford v. Holmes, 3 Mich., 460. 
 
 2152. But a declaration must show a cause of action. Where the 
 plaintiff exhibited a promissory note, and stated that he declared against 
 the defendant as indorser, without making any averment or statement 
 as to the presentation of the note for payment, and notice of non-pay- 
 ment to the defendant, the declaration was held bad in substance, and 
 judgment thereon for the plaintiff— the defendant not appearing — was 
 reversed. Barber v. Taylor, 1 Mich., 353. See Cieotte v. Morse, 8 Mich., 
 434. 
 
 2153. A declaration in a statutory action referred to the chapter of 
 the statute by the wrong number, but otherwise cited it correctly, and 
 was not demurred to. Held sufficient to support a verdict for plaintiff. 
 Aehey v. HtM, 7 Mich., 423. 
 
JUSTICES' COURTS. g 2161 
 
 2154. Docket. The docket entry of a justice's judgment must be 
 as certain, in matters of substance, as the judgment of a Court of re- 
 cord. Rood V. School District, &c., 1 Doug., 503. 
 
 2155. Under the proper entitling of a cause with the names of the 
 parties, an award of judgment was entered aa follows: "It is therefore 
 considered that the said P. do recover of the said D. the sum," &c. 
 Debt being brought on this judgment, it was held that the entry did not 
 show with sufficient certainty in whose favor and against whom the 
 judgment was rendered, and that therefore a transcript thereof offered 
 in evidence was inadmissible. Ibid. 
 
 3156. Held, also, that parol evidence was not admissible to prove 
 that the letters P. and D. in the docket entry, meant plaintiff and 
 defendant. Hid. 
 
 2157. The docket of a justice stated that a, cause was called and 
 judgment rendered "on the return of process." Held to mean on the 
 return day of process, and not the time of its actual return. Aldrich v. 
 Maitlartd, 4 Mich., 305. 
 
 2158. A statement in the docket that judgment was rendered in 
 favor of plaintiff— there being only one defendant — sufficiently shows 
 that judgment was rendered against defendant. Ibid. 
 
 2159. Certificate of Justice. The certificate of a justice to 
 the transcript of a judgment from the docket of a former justice, in 
 which he certifies that such docket is in his control, will be evidence of 
 that fact. Facey v. FtMer, 13 Mich., 527. 
 
 2160. A justice entered across a judgment on his docket, that it 
 was paid, stating the day, and signed the entry in his official capacity. 
 Held that such entry was prima facie evidence that the judgment was 
 satisfied, and that this evidence was not rebutted by proof, unaccompa- 
 nied by any explanatory testimony, of another entry immediately below 
 the former, on the same docket, without date, and signed by the justice 
 in his individual capacity, stating in effect that the judgment had not 
 been paid, according to the import of the former entry. Beach v. Bots- 
 ford, 1 Doug., 199. 
 
 2161. Court in bar-room. The statute of 1843— S. L., p. 135 
 — provided that no justice of the peace should hold any Court, or hear 
 an examination, in any bar-room, grocery, or other room or place where 
 spirituous or intoxicating liquors should be sold. On special appeal, 
 where it was stated in the justice's return that, on the day of the trial, 
 the cause was called in the bar-room of a tavern, and adjourned to an 
 adjoining room in the same house, but that the justice had no knowl- 
 edge that spirituous or intoxicating liquors were sold there, and that no 
 proof of such fact was offered on the trial, the Court refused to reverse 
 the judgment. The Court would not presume that spirituous liquors 
 
 269 
 
3169 JUSTICES' COURTS. 
 
 were sold in the bar-room of a tavern, when by the law as it then 
 stood, every license to keep a tavern did not authorize the sale of spir- 
 ituous liquors. Savier v. Chipman, 1 Mich., 116. 
 
 2162. Ser¥ice of summons. The return to a summons in 
 these words: " Served the within by reading personally" — the statute 
 (of 1833, p. 194) requiring it to be served by reading it to defendant, 
 and delivering to him a copy — is bad, and does not give the justice 
 jurisdiction of the person of defendant. Campau v. Fairbanks, 1 Mich., 
 151. 
 
 2163. But under the Revised Statutes of 1846, (p. 389, § 15) which ' 
 required tliat the summons sliould be served " by reading the same to 
 defendant, and (if required by him) delivering a copy thereof," a return 
 in these words: "Personally served true copies of the within by read- 
 ing," properly dated and signed by the constable, was held sufficient. 
 Shaw V. Moser, 3 Mich., 71. 
 
 2164. Failure of defendant to appear. A defendant 
 waives nothing by a failure to appear on the return day of process ; 
 but the. plaintiff must prove his case in the same manner as if he had 
 appeared. OUbeft v. Eanford, 13 Mich., 40. See Barber a. Taylor, 1 
 Mich., 352. 
 
 2165. Absence of Justice. On the adjourned day of a cause, 
 the absence of the justice for a few minutes more than an hour after 
 the time to which the cause had been adjourned, for the purpose of 
 holding a coroner's inquest, will not operate as a discontinuance of the 
 cause. Stadler o. Moors, 9 Mich., 264. See post, 2173. 
 
 2166. Illegal adjournment. An adjournment by a justice, 
 on his own motion, in the absence and without the consent of the 
 defendant, at any other time 'than on the return day of the writ, is a 
 discontinuance of the cause. Ibid. 
 
 2167. Submission to arbitration of the subject matter of a 
 suit, being a discontinuance of the suit, will discharge a surety for costs. 
 Dvnn V. SutUff, 1 Mich., 24. 
 
 216S. Title to lands. Under the Justices Act of 1841 (S. L., p. 
 81, §§ 1, 39, 43), a justice had no power to try a cause in which it ap- 
 peared by the pleadings that a question of title to real estate was in- 
 volved, and the title was disputed ; but where title was admitted — as by 
 demurrer to a declaration alleging it — the justice had jurisdiction. Storit 
 V. Eeyes, 2 Doug., 184. See Comp. L., §§ 3654, and 3729 to 3737 for 
 provisions somew^hat different. 
 
 2169. Under section one of the same statute, which provided that 
 
 justices should have jurisdiction of civil actions, &c., except "actions in 
 
 which the title to real estate shall come in question," it was held that, 
 
 under a declaration against defendant for falsely representing himself to 
 
 270 
 
JUSTICES' COURTS. § 2175 
 
 have title to a piece of land, wMcli plaintiff was induced to buy of him, 
 the title to the land must necessarily come in question, and that the 
 justice, therefore, had not jurisdiction of the case. Brooks v. DdrympU, 
 1 Mich., 145. 
 
 2170. Replevin. The forms proyided by statute— Comp. L., Oh. 
 152 — for actions of replevin, are applicable alike to Justices Courts and 
 Courts of record. Elliott v. Whitmore, 5 Mich., 532. 
 
 3171. Process against corporations. The act of March 
 28, 1849 — Comp. L., § 4846 — authorizing the service of process against 
 railroad companies upon conductors, &c., is not repealed, as respects 
 Justices Courts, by section 49 of the Justices Act of 1855 — Comp. L., § 
 3701. Folder v. Detroit and Milwaukee Railway Go.,1 Mich., 79. 
 
 2172. Since said Justices Act of 1855, justices of the peace have no 
 jurisdiction to issue attachments against foreign corporations. Brigha/m 
 V. Eglinton, 7 Mich., 391. 
 
 2173. Confession of Judgment. C. and L. were duly sum- 
 moned to answer to M. before a justice of the peace at his residence. 
 They appeared there on the return day, but neither the justice nor M. 
 appeared ; and no proceedings were had ;in the cause. Three days 
 afterwards, L., in the presence of C. and of a witness, but in the 
 absence of the justice, indorsed on a joint and several note of C. and L. 
 found in the office of the justice, his individual confession of judgment 
 thereon, upon which the justice, on the same day, without any continu- 
 ance of the cause from the return day of the summons, or any declara- 
 tion filed, rendered judgment in favor of M. against C. and L. for the 
 amount of the note. Held, that at the time of rendering judgment the 
 justice had no jurisdiction over the person of C; the summons having 
 spent its force on the return day, and the parties being out of Court, 
 and the cause discontinued. Cla/rk v. Holmes, 1 Doug., 390. 
 
 2174. Under the Statutes of 1838— ij. 8., p. 389, §3— a judgment by 
 confession was held void, where it did not appear to be " signed by the 
 person making the same, in the presence of the justice and of one or 
 more competent witnesses." The statute was construed to require the 
 witnesses to subscribe their names as such. Beach v. Botsford, 1 Doug., 
 199. 
 
 2175. Under the Code of 1833 — p. 193 — the jurisdiction of justices 
 was restricted to certain actions, and judgments by confession might be 
 entered, " provided that such confession be in writing, signed by the 
 person making the same, in presence of the justice and one or more 
 competent witnesses." A judgment was rendered by a justice in these 
 words, after the title of the cause, " Judgment by written confession of 
 the above named defendants, in favor of the above named plaintiff, for 
 eighty eight dollars and eighteen cents damages and costs of suit." 
 
 271 
 
§ 2183 JUSTICES' COXJRTS. 
 
 EM, that the judgment did not show, and was not prima facie evi- 
 dence, that the justice had jurisdiction of either the persons of the de- 
 fendants, or of the subject matter of the suit, and that it was therefor* 
 void. 8fpea/r v. Garter, 1 Mich., 19. 
 
 2176. Held further, that the justice could render judgment on con- 
 fession only in those actions which he had jurisdiction to try. And 
 that where jurisdiction was unqualifiedly withheld, consent, or the con- 
 fession of a judgment, would not render the proceedings valid. lUd. 
 
 2177. Under the same code, it was held that a judgment rendered 
 on a confession not in writing was void ; and that where such judg- 
 ment had been stayed, an action could not be maintained on the under- 
 taking of the surety, for want of consideration to support it. WUaon v. 
 Davis, 1 Mich., 156. 
 
 2178. Section 3655 of Compiled Laws, authorizes judgment to be 
 entered with consent of the creditor upon confession in writing, 
 signed by the debtor in the presence of the justice, " that he is indebted 
 to another upon contract in a certain specified sum." Where parties ap- 
 peared before a justice, and confessed judgment in favor of another, on 
 a demand arising upon contract, for a sum specified, and authorized 
 judgment to be entered thereupon, it was held a substantial acknow- 
 ledgment of their indebtedness, and sufflcient under this statute. Kin- 
 yon V. Fowler, 10 Mich, 16. 
 
 2179. Where two persons thus confessed judgment, and the entry 
 recited that " the parties appeared," it was held that this phrase pur- 
 ports that the creditor, as well as the debtors, was present and partici- 
 pated in the proceedings. Tbid. 
 
 2180. It is only where the parties appear without process that a 
 written confession signed by the defendant is required by the statute. 
 If the defendant appears after due service of process, and orally ad- 
 mits the cause of action for which the plaintiff declares, this is sufiB- 
 cient to authorize judgment to be entered against him. Grouse v. Der- 
 byshire, 10 Mich., 479. 
 
 2181. Stay of execution. The undertaking of one who be- 
 comes surety for stay of execution is in the nature of a confession of 
 judgment ; and to render it obligatory upon the surety, it must be exe- 
 cuted in the presence of the justice, and be witnessed by him. Gox x. 
 Grvppen, 13 Mich., 502. 
 
 2182. The approval of the stay entered by the justice in his docket, 
 but not showing his presence when the stay was entered into, cannot 
 be regarded as an attestation. Ibid. See further, supra 3137. 
 
 2183. Execution. Where, under the Revised Statutes of 1846, 
 the docket entry showed judgment rendered and execution issued on 
 the same day, it was held that it must be presumed that execution was 
 
 272 
 
JUSTICES OF THE PEACE. § 2189 
 
 awarded at the same time that judgment was rendered, in which case 
 the notice required by the Statutes— Ch. 93, § 113— where execution 
 issued before five days had elapsed, need not be giren. Jtaah v. Whit- 
 ney/, 4 Mich., 495. 
 
 2184. The evidence in support of an application for execution be- 
 fore the expiration of the five days, was not required to be in writing. 
 Nor was the justice required to set forth in his docket the facts stated 
 in support of the application. Where the docket recited that the party 
 " stated, under oath, that he was in danger of losing his debt unless 
 execution issued immediately," a statement of the necessary facts was 
 inferred. Ibid. 
 
 2185. It was further held, that what would be competent evidence 
 on such an application, was a question for the justice to determine ; and 
 if he awarded execution upon improper testimony, his action would 
 be erroneous merely, and not an excess of jurisdiction. Ibid. 
 
 2186. Transcript. The Revised Statutes of 1846— Ch. 93, § 
 103 — required the justice, upon proper demand, to give the party apply- 
 ing " a certified transcript of such judgment, and of the proceedings in 
 the case, so far as they appear upon the docket ; " and upon the filing 
 of such transcript with the clerk of the Circuit Court, the judgment be- 
 came, in effect, that of the Circuit Court. Held, that this statute, pro- 
 viding for an entirely ex-parte proceeding, and followed by «uch un- 
 usual consequences, must be strictly complied with by the party seek- 
 ing the benefit of its provisions ; and that where a transcript was au- 
 thenticated by a certificate of the justice in this form : " I hereby certi- 
 fy that the above is a true transcript of the above judgment, and of 
 the subsequent proceedings thereon," the certificate was insufficient to 
 authorize the filing of the transcript, and issuing execution thereon. Jew- 
 ett V. Bennett, 3 Mich., 198. 
 
 2187. Criminal cases. A judgment rendered by a justice in a 
 criminal case is not valid unless the entry thereof on the docket is 
 signed officially by the justice. Howard «. People, 8 Mich., 207. 
 
 2188. "Where the statute has prescribed as the penalty tfor an 
 offense, fine or imprisonment for a limited time, or l)atl\, a judgment 
 that the defendant pay a fine, and stand committed iintU paid, is voi^ 
 because adjudging an indefinite term of imprisonment. Ibid. See 
 also, supra, 944. 
 
 JUSTICES OF THE PEACE. 
 
 2189. Fees as witness. The statute of 1840 allowing to " the 
 Secretary of State, Auditor-Creneral, any clerk, " &c., one dollar a 
 day " for attending on subpcena with bills, records, or other written 
 
 18 273 
 
§ 2194 LAND CONTRACT. 
 
 evidence," was held not to apply to a justice in attendance with his 
 docket. He is not such a derk as was intended by the statute. Pren- 
 Hss V. Waster, 2 Doug., 5. 
 
 3190. VFtaat be may receive on Judgments. In the 
 
 absence of special instructions, a justice of the peace can receive no- 
 thing but current money of the tTnited States in satisfaction of a judg- 
 ment on his docket. SkM'B. Bennett, 1 Doug., 513 ; Welch v. Frost, 1 
 Mich., 30. 
 
 JUSTICES OF THE SUPREME COURT. 
 
 3191. Compensation as <?ii>euit Judges. Under Qie con- 
 stitution of 1850, and prior to the-jwesent organization of the Supreme 
 Court, the office of Judge of the Supreme Court was not a distinct 
 office from that of Circuit Judge, but two sets of duties were attached 
 to one office under the latter designation. And the salary of the Cir- 
 cuit Judges, as fixed by the constitution-, was a remuneration for all 
 duties attached to the office, and could not be increased by the legis- 
 lature. People «. Auditor- QeTieral, 5 Mieh., 193. 
 
 LAND CONTRACT. 
 
 2192. Position of parties to. In equity a vendee, under a 
 contract for the sale of lands, is considered as a trustee of the purchase 
 money for the vendor, who is regarded as a trustee of the land for the 
 former. The land is in equity the property of the vendee, who may dia- 
 pose of or incumber it in like manner with land to which he has the 
 legal title, subject to the rights of the vendor under the contract. WiTig 
 V. McDowdl, Wal. Ch., 175. 
 
 2193. A mortgage given by the vendee conveys no legal interest, 
 and the registry of the mortgage is notice to no one. Ibid. 
 
 2194. Possession by vendee: tender of deed: cove- 
 nants. The defendant made proposals to plaintiff's agent forthe pur- 
 diase of certain lands, and a parol agreement was made that if plaintiff, 
 who was a non-resident, accepted defendant's proposition, a deed 
 should be executed by plaintiff to defendant, as soon as convenient 
 In pursuance of the agreement, and anticipating its acceptance by 
 plaintiff, defendant, with the agent's permission, took possession of 
 the premises. Plaintiff ratified the agreement, and executed a deed, 
 which was tendered to defendant, who refused to receive it because it 
 contained no covenants of warranty. After he had occupied the pre- 
 mises for nine months, and all negotiation between the parties had 
 ceased, the agent notified defendant that if he remained in possession he 
 
 274 
 
LAND CONTRACT. § 2203 
 
 must pay rent. He continued in possession fifteen months longer. 
 Held, that plaintiff was entitled to recover for the last fifteen months of 
 occupancy, but that no promise could be impUed to pay for the occupa- 
 tion during the negotiations for the purchase, if the plaintiff refused to 
 ratify the agreement, or, after acceptance, to perform its conditions. 
 DwigU V. OiUler, 3 Mich., .566. 
 
 2195. In every contract for the sale of lands, unless the contrary in- 
 tention is expressed, there is an implied undertaking on the part of the 
 vendor, available at law as well as in equity, while the contract re- 
 mains executory, to make out a good title, clear of all defects and in- 
 cumbrances. Ibid. 
 
 2190. In this country, where titles are registered, the burden of 
 proof is upon the vendee to show a defect of title which will justify 
 the refusal of a proper deed when tendered. Ibid. 
 
 3197. The vendor, unless there is something in the contract to show 
 a contrary intention, or unless he acts in a ministerial or fiduciary capa- 
 city, impliedly engages to convey by a deed containing the usual cove- 
 nants ; and in this State lands are usually conveyed by deeds containing 
 a general warranty. Ibid. 
 
 2198. The deed tendered by the plaintiff, as it did not contain a 
 general warranty, was not such as the contract required, and the de- 
 fendant was justified in refusing it. The failure to consummate the sale 
 occurred, therefore, through the plaintiff's default, and he was not en- 
 titled to recover for the defendant's occupancy pending the negotiation. 
 Ibid. 
 
 2199. Vendee a tenant at 'will. The estate of one in posses- 
 sion of lands under a contract of purchase, is that of a tenant at will. 
 Ihmght v. Cutler, 3 Mich., 566 ; Crane v. O'BeOey, 8 Mich., 812. 
 
 2200. A clause in the contract, that on default by the purchaser the 
 seller might declare the contract void, and the purchaser should there- 
 after be deemed a mere tenant ^t will, and liable to be proceeded 
 against as such, confers no additional rights, and is merely declaratory 
 of the actual relation and rights of the parties. Crane v. O'Beiley, 8 
 Mich., 313. 
 
 2201. Wotice to quit may be waived by the purchaser in such a 
 contract. Ibid. 
 
 2202. Forfeiture. The contract wiU not be treated as forfeited 
 by non-payment at the day, where the parties themselves have not 
 treated time as essential, and it is not expressly made so by the terms of 
 the contract. Shafer v. Niver, 9 Mich., 253. For further decisions on 
 this point, see Specific Perfobmancb. 
 
 2203. Effect of vendor terminating contract. A ven- 
 dor having, on default by the vendee, elected to treat the contract as 
 
 275 
 
§ 3209 LANDLORD AND TENANT. 
 
 void, and having given tlie vendee notice to quit, must be regarded as 
 having relinquished his right to the amount then due on the contract. 
 He cannot treat the contract as void in respect to the rights which it 
 secured to the vendee, and valid in respect to those -which it secured to 
 himself. Qoodspeed v. Dean, 13 Mich., 353. 
 
 2204. Effect of release by vendee. Where the vendor in 
 an executory contract for the purchase of lands, receives from the ven- 
 dee a quit claim deed for the lands, this is a recission of the contract ; 
 and he cannot afterwards maintain an action on notes which were given 
 for the purchase price. Ives v. Bank of Lansinglurg, 13 Mich., 361. 
 
 LAND WARRANT. 
 
 3205. The holder of a land warrant has an absolute right to locate 
 land with it, and to receive a patent therefor. Merrill v. Hartwett, 11 
 Mich., 200. 
 
 2206. Where plaintiff located land with a warrant which had been 
 sold to him with a guaranty, and was afterwards notified from the land 
 office that the entry was suspended because the Commissioner of Pen- 
 sions had cancelled the warrant on the allegation that it was issued on 
 forged papers, and plaintiff then brought suit on the guaranty ; it was 
 held that this ex-parte and extra judicial proceeding of the Commission- 
 er could not conclude private rights, and that evidence of this action 
 did not show plaintiff entitled to recover. Ibid. 
 
 LANDLORD AND TENANT. 
 
 2207. Disputing landlord's title. A tenant cannot 
 dispute his landlord's title, nor, by his own act merely, 
 change the tenure, so as to enable himself to hold against his 
 landlord. He cannot, during the continuance of the lease or tenancy, 
 make a valid attornment to a third person without his landlord's consent 
 Byrne v. Beeson, 1 Doug., 179 ; Lee v. Payne, 4 Mich., 106 ; Falkner v. 
 Beers, 3 Doug., 117 ; BUncha/rd v. Tyler, 13 Mich., 889 ; Niles v. Bans- 
 ford, 1 Mich., 338. 
 
 2208. A contract by which a tenant is induced to desert his landlord, 
 is corrupt and void, and no action can be maintained upon it. If he ac- 
 cepts a lease from a third person, either he or his landlord may defend 
 his possession against proceedings by such third person, by showing 
 the prior existence of the tenancy. Byrne v. Beeson, 1 Doug., 179. 
 
 2209. Eviction. Where a tenant is dispossessed by one who en- 
 ters under a paramount title, such entry is equivalent to an eviction by 
 
 278 
 
LANDLORD AND TENANT. § 3316 
 
 legal process, and will excuse the tenant from paying rent to tlie land- 
 lord. The tenant is not bound to retain possession until actually expel- 
 led by legal process ; but may quietly yield possession, incurring the 
 risk of being able to show that the entry was under a paramount title. 
 Marsh V. Butterworth, 4 Mich., 575. 
 
 2210. Where a landlord, during the continuance of a lease, without 
 the consent of the tenant, enters upon the demised premises, which 
 have been vacated by the tenant, and the entry is followed by a contin- 
 uous possession inconsistent with the possessory right assured to the 
 tenant by the lease, such possession amounts to an eviction, and pre- 
 cludes the recovery of rent while it continues. Day v. Watson, 8 Mich., 
 535. X 
 
 2211. And this is so whether the entry be for condition broken or 
 not. If for condition broken, it signifies an intention to terminate the 
 lease entirely ; while, if the landlord regard the lease as still continuing, 
 the right to rent is suspended during the occupancy. Ibid. 
 
 2212. Assignment and sub-letting. A covenant by a lessee 
 not to transfer the lease without the consent of the lessor, does not in- 
 hibit a sub-letting by the lessee. Copland v. Parker, 4 Mich., 660. 
 
 2213. A lease by the lessee, of the three lower stories and the cellar 
 of a four-story store, which the lessee held under a lease in which he 
 had covenated " not to transfer this lease," was held no breach of this 
 covenant. Ibid. 
 
 2214. Where the lessee assigns his interest in the whole or a part of 
 the demised premises, for the residue of the unexpired term, the assignee 
 is substituted in place of the original lessee as tenant, and stands in that 
 relation to the original lessor. But where the demised premises are let 
 for a part only of the unexpired term, the assignee is only a sub-lessee, 
 and the relation of landlord and tenant does not exist between him and 
 the original landlord. Lee v. Payne, 4 Mich., 107. 
 
 2215. Surrender. A., by deed, leased premises to B., who after- 
 wards assigned the lease to C. A. assented to the assignment, and 
 agreed, by parol, to accept 0. as his tenant, and to look to him for the 
 rent. Held that there had been a sufficient surrender of the lease by 
 operation of law to satisfy the statute — Code of 1833, p. 343, § 9 — 
 which declared that " no lease, &c., shall at any time hereafter be as- 
 signed, granted or surrendered, unless it be by deed or note in writing, 
 signed," &c., " or by operation of law ;" and that A. could not after- 
 wards maintain covenant against B. for the rent. Logan v. Anderson, 3 
 Doug., 101. 
 
 2216. Notice to quit. Where a lease is invalid by the statute 
 of frauds, the lessee having taken possession is a tenant at will ; and if 
 the agreement was to pay rent monthly, he is entitled to a month's no- 
 
 377 
 
g 2222 LIBEL. 
 
 tice to surrender possession before the proceedings can be taken to dis- 
 possess him. And this month's notice must terminate with one of the 
 regular monthly periods. Huyser v. Chase, 13 Mich., 98. 
 
 2217. Where premises are let at a fixed monthly rent, with the un- 
 derstanding that the tenant shall give up possession whenever the land- 
 lord may require them for his own use, the letting creates a tenancy at 
 will which can only be terminated by a full month's notice to quit at 
 the end of one of the regular monthly periods. Woodrow v. Michael, 13 
 Mich., 187. 
 
 2218. Where rent is payable weekly, or at other stated 
 intervals, in advance, the tenant has the whole of the first day of each 
 succeeding week, or other interval of time, in which to make the pay- 
 ment. Sherlock v. Thayer, 4 Mich., 355. 
 
 LIBEL. 
 
 2219. Wtaat is libelous. It is not libelous to publish of and con- 
 cerning one who is a druggist, " The above druggist in the city of De- 
 troit refusing to contribute his mite with his fellow merchants for water- 
 ing Jefierson avenue, I have concluded to water said avenue in front of 
 T.'s store, for the week ending June 27, 1846." People v. Jerome, 1 
 Mich., 142. 
 
 2220. To render a publication libelous, it must indicate the person 
 intended by name, or connect him with some fact or circumstance 
 known to those to whom the publication is addressed, by which they 
 may understand who is meant. And to enable a jury to determine upon 
 the application, such fact or circumstance should be in proof ; and that 
 cannot be unless it is pleaded. Lewis v. SoiUe, 3 Mich., 514. 
 
 2221. In giving a construction to words declared upon as libelous, 
 resort cannot be had to the innuendo, the office of which is to explain 
 the context, not to add to it. Ibid. 
 
 fl^fifl. Action based upon the publication of the following words : 
 " It must be and is painful to all who feel the force of conscientious im- 
 pulses, and who regard the solemn responsibility ofan oath, to witness 
 at our elections the frequent violations of truth, committed by those 
 brought forward at the polls. The recurrence of false swearing is too 
 common to pass unpunished. No casuistry can palliate or excuse it. " 
 The inducement set forth was, that plaintiff was supervisor of the town- 
 ship ; that there was a general election ; that plaintifF was a member of 
 the board of election; and also a candidate for re-election. Held, that the 
 alleged libelous words were too vague and uncertain to constitute a 
 charge of perjury ; and that in connection with the extrinsic facts 
 pleaded, the perjury was not suificiently alleged. Ibid. 
 278 
 
LIMITATION OP ACTIONS. | 2228 
 
 LIBRARY MONEYS. 
 
 2223. Under the present constitution and statutes, all moneys which 
 are paid into the oflSce of the county treasurer, on account of fines, 
 penalties, 'forfeitures and recognizances, are to be credited to the library 
 fund, and apportioned and paid over by the treasurer to the proper 
 local officers, without any deduction for expenses, either attending the 
 collection of the particular sums paid in, or embracing the general 
 criminal expenses of the county. People v. Treasurer of Wayne County, 
 8 Mich., 392. 
 
 LIMITATION OF ACTIONS, 
 
 2224. The statute of limitations is a statute of repose;, as well as of 
 presumption. Jeieett v. Petit, 4 Mich., 508. 
 
 2225. Xew promise. Where a new promise is set up, it ought 
 to be proved in a clear and explicit manner, either expressly, or by 
 such an unqualified acknowledgment as authorizes its implication. Ten 
 Eyek v. Wing, 1 Mich., 40. 
 
 2226. The acknowledgment should contain an unqualified and di- 
 rect admission of a present subsisting debt, which the party is liable 
 and willing to pay, and be unaccompanied by circumstances or declara- 
 tions which repel the presumption of a promise or intention to pay. 
 IMd. 
 
 2227. Debt on judgment recovered in 1824. Plea, statute of limita- 
 tions. Replication, that in November, 1832, a juries execution was 
 taken out on the judgment ; that on the 17th of the same month, de- 
 fendant filed a bill in chancery and obtained an injunction restraining 
 proceedings on the execution ; that on November 17, 1885, it was stip- 
 ulated between the parties to the chancery suit, that the injunction be 
 dissolved; that the pluriea execution be set aside; that there be a ref- 
 erence to a master to take testimony in the chancery suit, and to state 
 *n account between the .parties ; to state the amount due upon the judg- 
 ment, and ascertain the amount of any and all legal and equitable set 
 offs to the judgment ; that testimony was taken under the stipulation 
 by both parties ; that the master made his report in January, 1838, and 
 tliat in March, 1846, the case was heard in the Court of Chancery and 
 the bill dismissed, with costs. On demurrer, it was held, that the repli- 
 'Cation did not show such an acknowledgment of the debt as would 
 warrant the implication of a new promise. Ibid. 
 
 222S. If the acknowledgment of a debt, or a partial payment of it, 
 is accompanied by declarations or circumstances which rebut the im- 
 plication of a promise to pay, or that the debtor, by the partial pay 
 
 279 
 
§ 3234 LIMITATION OF ACTIONS. 
 
 ment, admitted his obligation to pay the residue, the demand is not 
 revived. Jewett v. Petit, 4 Mich., 508. 
 
 3229. Payment. The indorsement of a partial payment upon a 
 promissory note, written by the party to be charged thereby, is compe- 
 tent evidence of such payment to take the case out of the statute. 
 Chandler v. Lavyrence, 3 Mich., 361. 
 
 2230. Although the statute requires a new promise to be in writing, 
 the fact of payment may be proved by the admission of the defendant, 
 or by any other competent parol evidence. Ibid. 
 
 2231. Saving clauses. The case stated, supra, 3237, held not to 
 come within the clauses of the statute saving the cases of arrest and 
 reversal of judgments, of judgments upon plea in abatement and upon 
 demurrers, &c. Ten Eyek «. Wing, 1 Mich., 40. 
 
 2232. Suit being commenced in justice's Court, the plaintiff em- 
 ployed an attorney to appear and prosecute the suit for him on the 
 return day. The attorney was prevented from attending to the suit on 
 that day, and requested another to appear, who did so, but his authority 
 being required, he was not able to prove it, and the action failed. It 
 was held that these facts did not make out a case within the clause 
 allowing a new action within one year where " in any action duly com- 
 menced," &c., "the suit shall fail of a sufficient return, by any unavoid- 
 able accident, or by any neglect or default of the officer to whom it 
 is committed, or if the writ shall be abated, or the action otherwise 
 avoided or defeated, by the death of any party thereto, or for any mat- 
 er of form ; or if, after verdict for the plaintiff, the judgment shall be 
 arrested, or if a judgment for the plaintiff shall be reversed on writ of 
 error." R. S. 1838, pt. 3, tit. 6, ch. 2, § 11. Spier v. McQueen, 1 Mich., 
 253. 
 
 2233. The term " persons beyond seas," in the statute of 1820 — 
 Code of 1833, p. 569 — ^meant persons out of the State. Hulburt v. Mer- 
 riwm, 3 Mich. 144. 
 
 2234. Said statute of 1820, limited the time for bringing ejectment, 
 for causes of action thereafter accruing, to twenty years. An act of 
 1829 — Code 1833, p. 408 — limited the period to ten years, where the 
 cause of action had, tlien accrued. The Statutes of 1838 repealed these 
 acts, and substituted a new limitation of twenty years, with a proviso, 
 however, that causes of action already accrued should not be affected, 
 but be determined by the law under which the same accrued. In eject- 
 ment commenced in 1840, for a cause of action which accrued in 1822, it 
 was held, in view of the various provisions of the Statutes of 1838 re- 
 lating to the same subject, that the action was barred by the act of 1839. 
 Lastly v. Cramer, 3 Doug., 307. And see HuSnirt v. Merriam, 3 Mich., 
 144. 
 
 380 
 
MANDAMUS. § 2240 
 
 2335. Defendant went into actual possession of lands, under a tax 
 title, in August, 1842, and by the act of February 17, 1842— Laws of 
 1842, p. 133 — the time for bringing action of ejectment in such case was 
 limited to ten years. This act was repealed by the Eevised Statutes of 
 1846, but it was held that § 9 of chap. 139 of those Statutes continued it 
 in force as to all rights of action which had accrued under it, and that 
 an action commenced more than ten years from the time defendant 
 entered into possession, was barred. Perry v. Mepbume, 4 Mich., 165. 
 
 LOG DRIVING AND BOOMING COMPANIES. 
 
 2236. Constitutionality. The act for the formation of Log 
 DriTing and Booming Companies — Comp. L., ch. 66 — Ln so far as it 
 provided for the formation of companies, and their power to make con- 
 tracts, was constitutional and valid. Ames v. Port Huron Log Driving 
 and Booming Co., 6 Mich., 266. [See supra, 622, 623, 635.] 
 
 2237. Org^anizatiou. The affidavit of organization, to be made 
 by two directors under section two of said act, is sufficient if made 
 strictly according to the terms of said section ; and it need not contain 
 any detailed statement of the proceedings had in the formation of the 
 company, Ibid. 
 
 223S. Contract frith. The delivery by a person of a list of 
 his log marks to a company formed under said act, does not operate as 
 a contract for the receiving by the company of all logs so marked that 
 he may have upon the stream within the limits of the company's ope- 
 rations. The object of the provision requiring such list was to entitle 
 the person furnishing it to notice of sale in case, by any casualty, his 
 logs should become so placed as to authorize the company to assume 
 their management. Ibid. 
 
 2239. In the absence of any contract, such company was only 
 authorized, by the sixth section of said act, to assume control of the 
 logs of others, and acquire a lien for services in respect thereto, where, 
 by reason of the logs having been put into the stream without adequate 
 provision for running them without obstruction, some obstruction had 
 actually been created. Ibid. 
 
 See a new statute for the formation of such companies, Laws of 1864, 
 p. 28. 
 
 MANDAMUS. 
 
 2240. "When will be issued. The writ of mandamus is only 
 issued where there is a clear legal right, and the party has no other 
 remedy. People v. Judges of Branch Oireuit Court, 1 Doug., 319. 
 
 281 
 
§ 3249 MANDAMUS. 
 
 2241. Mandamus to compel the Circuit Court to quash an attach- 
 ment, where the original affidavit was void, and a new one had been 
 alllowed to be filed in its stead, was refused. The proper remedy is by 
 certiorari. Ibid. 
 
 3242. Mandamus will not be granted to compel the Circuit Court 
 to set aside defective proceedings, when the defects are such as may be 
 obviated by amendment in that Court People v. Judges qf Cdihouu 
 Circuit Court, 1 Doug., 417. 
 
 2243. Mandamus is the proper remedy of the party seeking the 
 reversal of a decision of the Circuit Court on a motion to strike a decla- 
 ration from the flies in a common law action. The motion and decision 
 would constitute no part of a common law record, and exceptions could 
 not be alleged to the decision. People v. Judges of WailOenaw Circuit 
 Court, 1 Doug., 434. 
 
 2244. Mandamus may be granted to compel the board of auditors 
 of Wayne county to deliver their warrant on the county treasurer to 
 the person in whose favor an account has been allowed. And it is no 
 answer to the application that such a warrant was made out, but before 
 delivery, was taken on execution against the payee, and the money re- 
 ceived thereon by the officer from the county treasurer — such a warrant 
 not being the subject of levy on execution. People «. Auditors of 
 Wayne County, 5 Mich., 223. 
 
 2245. Where after the division of a township, the township boards 
 have met and determined the amount of indebtedness to be paid by the 
 new township, such amount is a fixed and liquidated demand against 
 such new township, which it is the duty of its township board to allow, 
 and to issue an order on the township treasurer for ; and if the board 
 refuse, the remedy is by mandamus, and not by action against the 
 township. Kofrathon v. Oregon, 8 Mich., 372. 
 
 2246. It8 office. A mandamus is allowed only to set the inferior 
 jurisdiction in motion ; but not for the purpose of requiring it to come 
 to any particular conclusion, or of retracing its steps where it has 
 already acted ; and this notwithstanding the party has no other remedy. 
 People V. Judge of Wayne County Court, 1 Mich., 359 ; People v. Inspectors 
 and 'Agent of State Prison, 4 Mich., 187. 
 
 2247. The writ is granted to compel the performance of a minis- 
 terial act, but not to inquire into the proper exercise of judicial discre- 
 tion. People V. Auditor General, 3 Mich., 427. 
 
 224§. Though generally used to enforce the performance of public 
 rights and duties, it may also be resorted to for the enforcement of pri- 
 vate rights, when withheld by public officers. People o. Supervisors of 
 Macomb, 8 Mich., 475. 
 
 2249. A private citizen cannot, in a matter where he is not directly 
 282 
 
MANDAMUS. § 2256 
 
 injured, apply for a mandamus to compel the performance of an omitted 
 duty by a public board; though cases might arise where the Court 
 would permit it, in the absence of the Attorney General or prosecuting 
 attorney, or his refusal without good cause to act. People v. Regents of 
 the University, 4 Mich., 98. See also, Peo^ v. Inspectors and Agent of 
 State Prison, 4 Mich., 187. 
 
 2250. A corporator may apply for the writ, to compel the custo- 
 dian of the corporate records and documents to allow him an inspection 
 of them. But he must show that he has made a proper demand for 
 such inspection, at a proper time and place, and for a proper reason. 
 The writ will not be granted to enable a corporator to gratify idle curi- 
 osity. People V. Walker, 9 Mich., 328. 
 
 2251. Where, therefore, a corporator demanded of the secretary of 
 the corporation an inspection of its books, records and papers, and the 
 demand was not shown to have been made at the office of the corpora- 
 tion, and no excuse was given for not making it there ; and the only 
 ground stated for the application was, that the corporator had a desire 
 " to ascertain the rights, duties, privileges and liabilities, and for the 
 protection" of the corporator, the writ was refused. Ibid. 
 
 2252. Practice. The writ will not be granted where the appli- 
 cation is for something diflFerent from that for which the party has laid 
 the foundation. The refusal of the Circuit Court to grant a motion for 
 an assessment of damages in replevin, is not a proper foundation for an 
 application to the Supreme Court for a mandamus commanding the 
 Circuit Court to impanel a jury to assess the value of the property 
 replevied. People v. Judges of Jackson Circuit Oourt, 1 Doug., 302. 
 
 2253. On a motion for a peremptory mandamus, the Court will not 
 allow the relator to amend his order on the respondent to show cause, 
 where it is too broad and asks more than he is entitled to, so as to 
 include that only to which he is entitled. Peopfe «. Township Board of 
 La Orange, 2 Mich., 187. 
 
 2254. An order to show cause why a peremptory mandamus should 
 not issue, has, in the Supreme Court, been uniformly substituted for an 
 alternative mandamus. Ibid. 
 
 2255. An alternative mandamus is answered by a return, which is 
 in the nature and performs the office of a plea ; while the order to show 
 cause is answered by affidavit. Ibid. 
 
 2256. Costs on granting a mandamus denied, where the defend- 
 ants were a public body, and it did not appear that they had acted in 
 bad faith. People v. Auditors <jf Wayne County, 5 Mich., 223. 
 
 288 
 
2263 MARITIME LA.W. 
 
 MARITIME LAW. 
 
 2257. General average. The steamer Missouri, being a new 
 and seaworthy hoat, and having on board passengers and a cargo of 
 goods, on a voyage from Buffalo to Chicago, encountered a very severe 
 gale on Lake Huron. She was in great danger of perishing from the 
 violence of the winds and the roughness of the waves. After long 
 struggling with the tempest, the master and crew agreed that it was 
 necessary to lighten her, in order to save her with the freight and pas- 
 sengers. Accordingly a quantity of goods were, for that purpose, 
 thrown overboard by the crew. The boat was saved, though much 
 injured, and returned to Detroit with the residue of her cargo. Held, 
 that these facts would constitute a proper case, under the maritime law, 
 for general average. Eossiter v. Chester, 1 Doug., 154. 
 
 225§. The doctrine of general average is known only to the mari- 
 time law, and cannot be enforced in a Court of common law jurisdiction. 
 Ibid. 
 
 2259. Pro rata freigbt. Freight pro rata itineris is due when 
 the ship, by inevitable necessity, is forced into a port short of her desti- 
 nation, and is unable to prosecute her voyage, and the goods are there 
 voluntarily accepted by the owner. Ibid. 
 
 2260. The owner of goods was deemed to have voluntarily accepted 
 them at the intermediate port when, knowing that the voyage had been 
 abandoned, its further prosecution having become impossible, or ex- 
 tremely hazardous, he there demanded his goods of the agent of the for- 
 warders, with whom they were stored, tendering payment of their 
 charges for storage, and brought replevin to recover possession on 
 the refusal of such agents to deliver them. Ibid. 
 
 2261. Jurisdiction over the lakes. The great lakes of 
 this country held not subject to admiralty jurisdiction, which was said 
 to be restricted to the open sea, and to waters navigable therefrom as 
 far as the tide ebbs and flows. Ibid. See supra, 78 to 86. 
 
 2262. Collision. In cases of collision the burden of proof is on 
 the plaintifif, not only to show negligence on the part of the defendant, 
 but ordinary care on his own part. Drew v. Bteamboai ChesapeaJce, 2 
 Doug., 33. 
 
 2263. A general custom of navigation — as, for example, for vessels 
 to pass each other to the left — may be proved by the testimony of per- 
 sons skilled in navigation. Such custom is a part of the law of the land ; 
 and a departure from it occasioning collision, will render the party 
 liable, unless the other party, by reasonable effort, might have pre- 
 vented it ; and each party should act upon the presumption that the 
 other party will adhere to the custom. Ibid. 
 
 284 
 
MICHIGAN CENTRAL RAILROAD CO. § 2268 
 
 MECHANIC'S LIEN. 
 
 2264. To what it attaches. The lien (under Code of 1833, 
 p. 406), of a mechanic or material man, for labor done or materials fur- 
 nished in the construction of a building, attached only upon the interest 
 of the person for whom it was erected ; and did not incumber any pre- 
 existing right or title of any other person. Scales v. Chriffin, 2 Doug., 
 54 
 
 2265. If, therefore, when the lien attached, the person causing the 
 building to be erected had no title to the premises on which it stood, 
 but a mere right resting in contract, to a conveyance on the perform- 
 ance of a condition precedent, and that right was afterwards lost by his 
 failure to perform the condition, subsequent proceedings to enforce the 
 Uen would convey no right or title to the purchaser. Ibid. 
 
 2266. ^^hen it will not attach. A builder's lien, under the 
 statute — Comp. L., Ch. 154 — ^will not exist where the agreement itself 
 provides that the contract price shall be secured by mortgage on the 
 premises built upon. Barrows i>. Baughman, 9 Mich., 313. 
 
 2267. A tender, sufficient in amount, will discharge a me- 
 chanic's lien for the repair of personal property ; and, if not accepted, 
 the creditor must thereafter rely upon the personal responsibility of 
 his employer. Moynalian v. Moore, 9 Mich., 9. 
 
 MICHIGAN CENTRAL RAILROAD COMPANY. 
 
 226§. It is provided by section five of the charter of the Michigan 
 Central Railroad Company — Laws 1846, p. 43— that no railroad or rail- 
 roads from the eastern or southern boundary of the State shall be built, 
 constructed or maintained, or shall be authorized to be built, constructed 
 or maintained, by or under any law of this State, any portion of which 
 shall approach, westwardly of Wayne county, within five miles of the 
 line of said railroad, as designated in said act, without the consent of 
 said company ; and that no railroad or railroads shall be authorized or 
 constructed, which shall commence within twenty miles of the city of 
 Detroit, and extend to lake Michigan, or the southern boundary of the 
 State, the line of which shall, on an average, run within twenty miles 
 of the main line of said Michigan Central Railroad : Provided, that said 
 section shall not be construed to restrict or prevent the construction 
 of public roads, or canals, or railroads, or private ways, under, above or 
 across the road of said company, when deemed expedient ; but so as 
 not unnecessarily to obstruct the same. It was held, that the prohibi- 
 tion contained in said section did not prevent the Michigan Southern 
 Railroad Company from completing the construction of the Tecumseh 
 
 285 
 
% 2274 MICHIGAN SOUTHERN RAILROAD CO. 
 
 branch of their road, from its junction with their main line to Jackson 
 on the line of tlie Michigan Central Railroad Company. Michigan Cen- 
 tral JS. S. Oompamy i>. Michigan Southern R. B. Co., 4 Mich., 361. 
 
 3269. For construction of the 16th section of the charter, see Mi- 
 chigan ■ Central SaUroad Co. v. Hale, 6 Mich., 243, overruling M. C. R. 
 Co. V. Ward, 2 Mich., 538. And see supra, 487 to 494. 
 
 MICHIGAN SOUTHERN RAILROAD COMPANY. 
 
 2270. Right to land for their route. Certain lands lying 
 east of the village of Hillsdale, were, in the year 1838, taken and appro- 
 priated by the State for the use of the Michigan Southern Railroad, 
 which was completed and brought into use over said lands in 1844 ; and 
 in 1846 all the right, title and interest of the State, in the railroad, was 
 transferred to the Michigan Southern Railroad Company. It was held 
 that under the law of 1888, providing for the acquisition of lands for the 
 purposes of railroads, and the settlement of claims for the appropriation 
 of property for such uses, the lands in question vested in the State, 
 whether the claim for damages for their appropriation had been adjudi- 
 cated upon and satisfied or not ; that the transfer of the road by the 
 State to the company imposed upon the latter no obligation to pay said 
 damages, and that the company took such lands, relieved of any claim 
 or lien for such claim. People & Michigan Southern Railroad Company 
 3 Mich., 496 ; Smith «. McAdam, 3 Mich., 506. 
 
 2271. Taxation. Under the charter of said company — which sub- 
 jects the company to an annual tax of three-fouths 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 con- 
 structing their road, or purchasing, constructmg, chartering or 
 hiring of steamboats authorized by the charter — ^the company cannot 
 daim exemption from taxation on sums of money paid out for commis- 
 sions and other expenses attending the sale of its bonds and the obtain- 
 ing of loans. Michigan Southern and Northern Indiana Railroad Co. v. 
 The Auditor- General, 9 Mich., 448. 
 
 2272. Nor can the company claim exemption from taxation upon 
 any sum of money borrowed by it, and afterwards loaned upon worth- 
 less securities, whereby it became lost to the company. Ibid. 
 
 2273. Whether a deduction from the taxable amount should be 
 made of bonds of the company which were loaned, and for which worth- 
 less securities were subsequently taken in payment, guere. Held in 4 
 Mich. 398, that it should not. In 9 Mich. 448 the Court was equally 
 divided on the question.. 
 
 3274> "Whether the amount of the bonds of the company issued for 
 286 
 
MILLERS AND MILL OWNERS. § 2279 
 
 loans, is to be taken as the amount of its loans, for the purposes of taxa- 
 tion, or whether from this amount should be deducted the discount 
 allowed on the sale of the bonds, giiere. Held in 4 Mich. 398 that the 
 discount should not be deducted. In 9 Mich. 448 the Court was equally 
 divided on the question. 
 
 2275. No deduction should be made for the 3,000 shares of capital 
 Stock alleged by the company to have been distributed as a bonus 
 among the original stockholders without any consideration being re- 
 ceived therefor ; — the allegation not being sustained by the facts in the 
 case. 4 Mich., 398 ,- 9 Mich., 448. 
 
 2276. 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 consolida- 
 tion should not take place ; and the amount of its capital and loans 
 thereafter, upon which such taxation should be 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 tfixation fixed by the original charter of the 
 Michigan company, but that all the stock and loans formerly taxable were 
 to continue taxable without diminution by losses or unproductiveness. 
 4.nd that, therefore, no deduction can 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 em- 
 ployed in the State of Michigan," in the act of consolidation, has no re- 
 ference to the actual use of the property purchased by the company, 
 but is merely designed to distinguish the Michigan investment from the 
 Indiana investment.. 9 Mich.,.44S. 
 
 MILLERS AND MILL OWNERS. 
 
 2277. The statute regulating the duties of millers and mill owners 
 — Comp. L., § 1333 et seq. — is meant to apply to such mills only as 
 are in the habit of grinding for toll. Merrill v. CahiU, 8 Mich., 53. 
 
 227S. Under this statute, millers whp hold themselves out to the 
 community as millers grinding for the public generally, are bound to a 
 similar impartiality to that required of common carriers, innkeepers, 
 and those following such public avocations. And it is as clearly their 
 duty to receive grain, when the mill is runmng; as to grind it when re- 
 ceived. Ibid. 
 
 2279. The conversation between the person bringing grain to the 
 mill to be ground, and the agent of the ownw, who, under the own- 
 er's direction, refuses to receive the grain, is competent evidence, as 
 
 887 
 
§ 3287 MORTGAGE OF CHATTELS. 
 
 part of the res gestm, in a suit against the owner, under the statute, 
 for such refusal. lUd. ' 
 
 2250. Where two or more persons own and run such a mill, they 
 are aU liable for a refusal to receive grain brought to be ground, whether 
 the refusal comes from one or all such owners, or from the agent in 
 charge. Ibid. 
 
 MORTGAGE OF CHATTELS. 
 
 2251. Is a transfer of title. By a mortgage of chattels the 
 legal title to the property mortgaged passes to the mortgagee upon con- 
 dition ; and upon breach of condition this title becomes absolute. Tan- 
 nahUl V. Twttle, 3 Mich., 104. 
 
 2252. Rigtat of possession. The general title being in the 
 mortgagee, he is entitled to immediate possession, to hold until condi- 
 tion performed, unless the parties otherwise stipulate. Ibid. 
 
 2283. If the mortgagor is suffered to retain possession, such posses- 
 sion is, in law, the possession of the mortgagee, who may maintain 
 trespass, trover or replevin for any intermeddling with the property 
 by a third party; and this right of action exists where the property is 
 taken by an officer under color of legal process against the mortgagor. 
 lUd. 
 
 2254. lievy on niortg;aged property. The mortgagor's in- 
 terest in the property cannot be seized and sold on execution, before 
 condition broken, unless he is entitled to possession for some definite 
 period, under an agreement to that effect with the mortgagee; nor then 
 ifthat period has elapsed. Ibid. Mggleston v. Mundy, 4 Mich., 295 ; 
 Bacon v. Kimmdl, 14 Mich. 
 
 2255. Nor can it be seized and sold after condition broken. The 
 statute — Comp. L., § 4461 — does not authorize such levy and sale, either 
 before or after condition broken, where no right of possession was re- 
 served to the mortgagor. TannahUl v. Tuttle, 3 Mich., 104. 
 
 22§6. A clause in a mortgage providing that if the mortgagor 
 should sell, assign or dispose of the property, or attempt to do so, or to 
 remove the same from the township, without the written assent of the 
 mortgagee, the latter might enter upon the premises of the mortgagor, 
 or any other place where the property might be, and take possession of, 
 and sell and dispose of the same — is neither an express nor an implied 
 covenant for possession by the mortgagor, so as to subject the property 
 to levy and sale on execution against him. EggUaton v. MuMy, 4 Mich., 
 295. 
 
 2287. Where the olficer levied upon the property, and offered the 
 same for sale, but being informed of the mortgage, changed his offer to 
 
HORTGAGE OP CHATTELS, § 2394 
 
 a sale of the mortgagor's interest, and made return tliat he had levied 
 upon the property and sold aU the debtor's right therein, which was bid 
 off by a third party ; it was held that the sale so made protected neither 
 the ofScer nor the purchaser from liability to the mortgagee. lUd. 
 
 S2$§. Consideration. As between the parties to it and their 
 representatives, in a controversy respecting the property, the mortgage 
 is sufficient evidence of consideration. Webb v. Mann, 3 Mich., 139. 
 
 22S9. ^''liat i§ not a mortgagee. A writing given by a 
 debtor to his surety for the debt, providing that on failure of the debtor 
 to pay the debt within thirty days, the surety may take immediate pos- 
 session of the goods, &c., in possession of the debtor, in the store and 
 premises occupied by him, and sell so much as will pay the debt, and a 
 reasonable compensation for his services, and re-deliver the balance to 
 the debtor — is not a mortgage, for it does not purport to change, in any 
 way, the title to the property. It is a mere naked power, giving no 
 right in the property itself until reduced to possession. Holmes v. HaU, 
 8 Mich., 66. 
 
 3S90. Vfliat is. A debtor assigned to his creditor certain shares 
 of railroad stock, and at the same time gave a note for the debt, recit- 
 ing therein that if the said debt and interest is not paid at maturity, the 
 railroad stock " hereby assigned to secure the payment aforesaid is to be 
 deemed and taken as forfeit for the above payment." This constituted 
 in legal eflfect a chattel mortgage of the stock, under which the holder 
 of the note was entitled to possession of the stock certificates. Davis 
 ». Rider, 5 Mich., 423. 
 
 2391. A partner may give a mortgage on the co-partnership 
 property. It is not necessary that it be under seal, but if a seal be 
 affixed, it is a nullity, and will not vitiate the mortgage. Sweetzer v. 
 Mead, 5 Mich., 107. 
 
 2292. Description. A chattel mortgage given by a merchant 
 of "goods in [his] store," will not be held, under these words, to include 
 a safe kept in his store, not for sale, but for his own private use. Curtis 
 V. Phitlips, 5 Mich., 112. 
 
 2293. As against others than the parties to the mortgage, " one sor- 
 rel horse" is not a sufficient description under the Canada statute, which 
 requires that a mortgage of chattels " shall contain such efficient and 
 full description thereof that the same may be thereby readily and easily 
 known and distinguished." Montgomery v. Wight, 8 Mich., 143. 
 
 2294. Efotice and record of mortgage. Kotice of the ex- 
 istence of an unpaid prior mortgage of personal property destroys the 
 preference which a second mortgagee might otherwise be entitled to 
 claim in consequenee of the omission of the first mortgagee to refile 
 
 19 289 
 
§ 2303 MORTGAGE OF CHATTELS. 
 
 his mortgage within a period prescribed for that purpose by sta- 
 tute. WethereH v. Spencer, 3 Mich., 123. 
 
 2295. The second mortgagee, having notice of the existence of the 
 prior mortgage at the time of taking his own, is not a subsequent mort- 
 gagee in good faith, within the meaning of the statute. Wetherell t. 
 Spencer, 3 Mich., 123 ; Doyle v. Stevens, 4 Mich., 87. 
 
 2296. The notice must be so clear and distinct as to render it bad 
 faith in the second mortgagee to insist upon his mortgage in preference 
 to the former. Doyle v. Stevens, 4 Mich., 87. 
 
 2297. Being notified of a prior mortgage at the time of taliinga con- 
 veyance of or lien upon the property, the subsequent purchaser is put 
 upon inquiry as to the extent of the prior mortgage, and takes subject 
 to its amount. Ibid. 
 
 2298. One having a chattel mortgage on file in the city clerk's office, 
 took it away for a few days, and without his knowledge the clerk made 
 an entry in the file book that the mortgage had been delivered to 
 the mortgagee. It was held, that this entry was unofficial, and did 
 not enable one who had bought the mortgaged property to hold it as 
 against the mortgage, which had been returned to the ffies before his 
 purchase had been made. Woodruff v. PhiUips, 10 Mich., 500. 
 
 2299. A chattel mortgage properly ffled is a public record, and be- 
 longs to the office ; and the clerk has no right to deliver it to the mort- 
 gagee to be taken away. If allowed to be taken from the files and after- 
 wards returned, no second indorsement of the filing by the clerk is ne- 
 cessary to make it notice thereafter under the statute. Ibid. 
 
 2300. A chattel mortgage was given in evidence which purported 
 to be given to secure a certain promissory note. A note of the descrip- 
 tion was not produced, but one of a different date was oflfered as the 
 one designed to be secured. It was held that the filing of the mortgage 
 was not notice of any other claim than the one described in it. Hinch- 
 man v. Town, 10 Mich., 508. 
 
 2301. Tender and payment. A tender of the amount due at 
 maturity discharges the lien of the mortgage ; and if the mortgagee re- 
 fuses to receive it and deliver up the property, he cannot have the 
 amount of his debt allowed, by way of recoupment or otherwise, in an 
 action of trover brought by the mortgagor to recover the value of the 
 property. FuUer v. Parish, 3 Mich., 211. See also, Moynahan v. Moore, 
 9 Mich., 9. 
 
 2302. Where one holding property in mortgage converts it to his 
 own use, the mortgage debt is thereby satisfied to the extent only of 
 the value of the property. Davis v. Rider, 5 Mich., 423. 
 
 2303. Where a chattel mortgage was assigned by the mortgagee as 
 collateral security for a debt, it was held that an appropriation by the 
 
 290 
 
MORTGAGE OP LANDS. § 2308 
 
 assignee of sufficient of the property to satisfy the debt, would extin- 
 guish his interest in the property, and the residuum of the mortgage in- 
 terest, if any, would revert to the mortgagee. Place ». Orant, 9 Mich., 42. 
 
 2304. Effect of suit on demand. The commencement of a suit 
 upon a promissory note does not extinguish the lien of a chattel mort- 
 gage collateral to the note. Thurber v. Jewett, 3 Mich., -SOS. But it is a 
 waiver of the forfeiture of the condition of the mortgage. Ibid. 
 
 2305. Redemption after forfeftnre. A mortgagor of chat- 
 tels, notwithstanding the forfeiture of the condition of the mortgage, 
 may redeem in equity at any time before the mortgagee has foreclosed, 
 by a reduction of the property into possession, or by a sale pursuant to 
 the power conferred by the mortgage. Van Brunt v. Wakdee, 11 Mich., 
 177. See on the same subject, TannahiU v. TuUk, 3 Mich, 104. 
 
 2306. Illegal condltion§. A chattel mortgage of a stock of 
 goods, which leaves the mortgagor in possession, and by inference au- 
 thorizes him to sell in the usual course of business, is good between the 
 parties, and not necessarily fraudulent as to creditors. <3ay v. BidweU, 
 7 Mich., 519. 
 
 2306a. Being good between the parties, such a mortgage could not 
 be fraudulent on its face as against creditors, since it would not show 
 that there are any creditors, or, if it did, it would not appear but 
 that they had assented to it, or were themselves sufficiently secured. 
 Ibid. 
 
 23062>. A creditor who does not show that he was such at the time of 
 the giving of such a mortgage, is not in a position to attack it as fraudu- 
 lent, on the ground that it allows the mortgagor to remain in possession 
 and dispose o€ the mortgaged property. Ibid. 
 
 2307. Where it was shown that the mortgagee of a stock of goods 
 left the same in the hands of the mortgagor, with power to sell and dis- 
 pose of the same in the usual course of business, for cash or upon credit 
 and the mortgagor applied the proceeds of sales in the purchase of other 
 goods to keep up the stock, in the support of himself, and in paying 
 other debts than that secured by the mortgage — the mortgagee not 
 asserting a right to the possession of the property, or the specific pro- 
 ceeds of the sales thereof, or preventing or prohibiting such sales— -these 
 facts do not render the mortgage absolutely void in law as against the 
 creditors of the mortgagor; but the question of fraud is for the jury. 
 Oliiier V. Eaton, 7 Mich-, 108, 
 
 MOETGAGE OF LANDS. 
 
 230S. A deed absolute on its face, given by a debtor to 
 his creditor, may in equity be shown by parol to have been given to 
 
 291 
 
§ 2313 MORTGAGE OF LANDS. 
 
 secure the payment of the debt ; and when that fact appears, it will be 
 held to be only a mortgage. Wadaworth v. Lorwnger, Har. Ch., 113 ; 
 Emerson v. Atwater, 7 Mich., 13. 
 
 3309. One who takes the land with knowledge of the purpose for 
 which the deed was given, holds it subject to the debtor's right to re- 
 deem. Ibid. 
 
 2310. Mortgage or trust. A. conveyed a farm to B., his son- 
 in-law, in consideration of $3,500. By the same instrument, B. bound 
 himself to pay the debts of A., especially a mortgage on the farm, and 
 to account to A. for the balance of the $2,500, after paying the debts ; 
 and B. promised and obligated himself, besides the payment of the 
 $2,500, to board, lodge and clothe A., in health and in sickness, during his 
 natural life, &c., and A. reserved to himself the right to live with B.; and 
 for the security of the payment of the $2,500, and the fulfilling the "clauses 
 and conditions " above stated, B. was not to give, alien, exchange or sell 
 the farm without permission of A., and the farm was to stand hypothe- 
 cated until the payment in full of the $2,500, when A. was to " release 
 the present mortgage in a legal manner." Held not to be a deed of trust, 
 or a deed upon condition ; but an absoute deed, incorporating within it 
 a lien in the nature of a mortgage. Oampcm v. Chene, 1 Mich., 400. 
 
 2311. Where a judgment debtor gave to the attorney of the creditor 
 a deed of lands, authorizing him to sell and dispose of them, and apply 
 the money in payment of the judgment, and to execute and deliver to 
 the purchaser a deed, provided the judgment was not paid in six months 
 from that time ; and the judgment not being paid, the attorney caused 
 the lands to be sold at public auction, and they were struck off to the 
 creditor, who was the highest bidder ; it was held that the deed was 
 a mortgage, and the right of redemption could not be barred except 
 by foreclosure, either at law or in equity. Gomstock v. Howard, Wal. 
 Ch., 110. 
 
 2312. Equitable mortgage. An agreement in writing, in- 
 tended by the parties to give a lien on real estate for the payment 
 of a debt, though not witnessed as required by statute to convey 
 real estate, is good as an equitable mortgage. Abbott v. Oodfroy'a heirs, 
 t Mich., 178. 
 
 2313. In form of contract of purchase. Where A., be- 
 ing indebted to B. in the sum of $2,000, secured on real estate, con- 
 veyed to him the same real estate, and took back a contract for the 
 purchase of it from B. for $3,000, payable as therein specified, which 
 contract provided that " time is now, and shall be at all times, con- 
 sidered and deemed a material part ct this contract ;" and that on de- 
 fault being made by A. in any of its conditions to be performed by 
 Mm, be should thereupon forfeit all rights under the same, and be 
 
 293 
 
MORTGAGE OF LANDS. § 2320 
 
 thereafter a tenant at will to B. at a specified yearly rent ; and it 
 appeared that the transaction was intended merely to secure B. the 
 $2,000 due him : Held to be a mortgage ; and that A. did not forfeit 
 his right to redeem by a failure to pay at the times specified. Batty 
 V. Snook, 5 Mich., 231. And see to the same effect, Enos v. Suflwrland, 
 11 Mich., 588. 
 
 2314. If the creditor, in such a case, conveys the land to a bona 
 flde purchaser, he must account to the debtor for its value at the 
 time of the sale, whether he received that amount or not. Enoa o. 
 Sutherland, 11 Mich., 538. 
 
 2315. Where a contract Is thus given, which is really an instru- 
 ment of defeasance, it is not essential that it be sealed. Ibid. 
 
 2316. In doubtful cases, Conrts of equity incline to construe a deed 
 with a condition to be a mortgage ; and may do so where a deed and 
 bond to convey are concurrent instruments, in the absence of facts 
 showing the intention of the parties to be otherwise. Swetland v. Swet- 
 land, 3 Mich., 482. 
 
 2317. To render a conveyance absolute in its terms a mortgage, it 
 must be so in its inception. It can never become a mortgage by any 
 subsequent act ; and if it once becomes an absolute deed for a moment, 
 it must always remain so. Ibid. 
 
 2318. Where it appears that, by express agreement of the parties, a 
 debt due from the grantor to the grantee was extinguished by the deed, 
 or that the money paid was not advanced by way of loan, or that it is 
 at the option of the grantor to refund or to keep the money, the trans- 
 action is a conditional sale and not a mortgage. But if the remedies of 
 grantor and grantee are reciprocal — the former bound to repay the 
 money, the latter to reconvey the premises — then the deed will be con- 
 strued a mortgage. Ibid. 
 
 2319. IVature of a mortgage. A mortgage is no longer, in 
 this State, what it was originally at the common law — a grant of the 
 land to the mortgagee, defeasible upon condition subsequent, and to 
 become absolute on feiilure to pay at the specified time. It is but a 
 security for the debt. The estate in the land is still in the mortgagor : 
 and payment at any time before a foreclosure becomes absolute, with 
 the legal costs, if any, will discharge the mortgage, and no reconvey- 
 ance is necessary. Oa/rut?wrs v. Humphrey, 12 Mich., 270 ; Van Susan 
 c. Kanouse, 13 Mich., 303. And see Ladtte v. Detroit and Milwaukee 
 Railroad Co., 13 Mich., 380. 
 
 2320. Mortgage of a mortgage. Where the owner of a 
 mortgage on which nothing was to become due for several years, as- 
 signed the mortgage to secure a debt of his own to an amount less than 
 the mortgage, and the assignment was upon condition that if the 
 
 293 
 
§ 3323 MORTGAGE OF LANDS. 
 
 assignor should pay his indebtedness to the assignee on or before 
 the first day of May following, then the assignment was to be void, but 
 if not, and the assignee should collect the moneys, he should, after 
 retaining the amount of his debt, interest and charges, pay over the 
 surplus to the assignor; held, 
 
 1. That this was a mortgage of the mortgage. 
 
 3. That the assignor, or those claiming under him, would be entitled 
 to this surplus from the assignee or any person claiming through Mm, 
 at whatever period in the future it might be collected. 
 
 3. That, the mortgage itself being executed prior to the statute abol- 
 ishing ejectment by mortgagees, the assignor's right to redeem must 
 be placed upon the same footing as that of a mortgagor of real estate. 
 
 4. That where a subsequent assignee of the mortgage took a deed of 
 the mortgaged premises from the original mortgagor to himself, this 
 deed had the effect to foreclose the mortgage as to the mortgagor so 
 deeding ; that the land now represented the mortgage, and the mortga- 
 gor of the mortgage, or one claiming under him, might file his bill in 
 chancery and have decree that the amount of the mortgage, less the 
 sum it was assigned to secure, be paid to him, and in default thereof the 
 premises be sold to satisfy, first the sum the mortgage was assigned to 
 secure, and next, to pay him the amount of the mortgage less such sum, 
 
 5. And such bill being filed, and it appearing that possesion had been 
 taken under such deed, and complainant having been remiss in assert- 
 ing his rights, whereby he might have induced defendants to treat the 
 property as their own, discharged of the lien of the mortgage, he was 
 held not entitled to an account of the rents and profits of the premises 
 as against defendants. Qraydon v. Church, 7 Mich., 36. 
 
 2321. Con§ideration. Foreclosure by assignee. The mortga- 
 gee was sworn as a witness, and testified that the mortgage was made 
 to him, and assigned to complainant at the request of one of the mort- 
 gagors, without any consideration moving from or to him for the mort- 
 gage or assignment. Held, that this evidence cast upon complainant 
 the burden of proof to show a consideration for the mortgage. Bishop 
 V. Fetch, 7 Mich., 371. 
 
 fiSfifi. A mortgage was given to secure the payment of judgments 
 confessed by the mortgagor, but which were void for want of compli- 
 ance with the statute. Bill being filed to foreclose, and no proof made 
 of any indebtedness, the bill was dismissed. AiuHn v. Orant, 1 Mich., 
 490. 
 
 2323. Bill to foreclose a mortgage conditioned for the payment of a 
 certain sum of money. Held competent to show in defense, by parol 
 evidence, that the mortgage was given to indemnify sureties in a recog- 
 294 J 
 
MORTGAGE OF LANDS. § 2338 
 
 nizance of bail, and that the liability of the sureties had been discharged 
 without their being damnified. Oolman v. Post, 10 Mich., 422. 
 
 2324. Alternative condition. J. gave a mortgage for $10,000, 
 payable in several instalments. As further security for the first four 
 instalments, he gave a second mortgage on other premises, conditioned 
 to pay said four instalments as they fell due. The second mortgage 
 also contained a stipulation that whenever J. should build on the prem- 
 ises covered by the first mortgage, and cause the buildings to be insured 
 for $3,000, and assign the policy to the mortgagee, and agree to keep 
 the same so insured during the continuance of the first mortgage, then 
 the mortgagee shouM discharge the second mortgage. J. built on the 
 premises covered by the first mortgage, and caused the buildings to be 
 insured, but did not assign the policy. The said four instalments of the 
 first mortgage having become due, and three of them remaining unpaid, 
 a bill was filed to foreclose the two mortgages. J. (who had become 
 insolvent) now tendered an assignment of the policy of insurance, 
 together with a written agreement to keep the buildings insured, which 
 the holder of the mortgages declined to receive, It was held, that 
 under the second mortgage J. had his election, to pay the said four 
 instalments as they fell due, or to perform the stipulation therein with 
 respect to building and insuring; that his right to elect terminated 
 when the moneys fell due, and he had no right thereafter to a discharge 
 of the second mortgage on tendering the policy of insurance and agree- 
 ment to keep insured. Ohapin v. Jacobs, 10 Mich., 405. 
 
 2325. Conditioned for support: wlsko may foreclose. 
 A mortgage conditioned for the support of the mortgagee by the mort- 
 gagor, during her lifetime, cannot be foreclosed for the benefit of per- 
 sons who had boarded the mortgagee at the request of the mortgagor. 
 Such a mortgage is for the benefit of the mortgagee, and not for the 
 benefit of those who may, at the request of the mortgagor, furnish her 
 with support. Danida v. Eisenhrd, 10 Mich., 454. 
 
 2326. Ambiguous condition. Where there was some doubt 
 whether a mortgage was, by its condition, payable in work or in money, 
 it was held to be the duty of the Court to construe it most strongly 
 against the mortgagor, and in such manner as to make it a valid and 
 binding security which might be enforced against him. Jerome v. Hop- 
 Hju, 2 Mich., 96. 
 
 2327. Indemnity. Where a mortgage is conditioned to indem- 
 nify a surety, the mortgagee cannot foreclose until he has been damni- 
 fied. Thurston v. Prentiss, Wal. Ch., 529. 
 
 232S. But where it is conditioned to pay the demand, as well as to 
 save the surety harmless, the mortgagee may foreclose on failure of the 
 mortgagor to pay, in order to raise the money to pay the demand, and 
 
 395 
 
§ 2335 MORTGAGE OP LANDS. 
 
 rid himself of responsibility. Thurston v. Prentiss, 1 Micli., 193. And 
 see Bye v. Mann, 10 Mich., 291 ; BuBer v. Lctdue, 12 Mich., 173. 
 
 2329. A condition in a mortgage that the mortgagor " shall 
 promptly pay and discharge all notes and papers of his upon which 
 the mortgagees shall become indorsers or acceptors, together with all 
 the interest, cost and charges accruing thereon, so as to save said mort- 
 gagees harmless by reason of their connection with such paper," is 
 broken at once on a failure to pay the paper at maturity, and a right to 
 foreclose accrues, without further action of the mortgagees. Butler n- 
 Ladm, 12 Mich., 173. 
 
 2330. In a mortgage with the condition above set forth, the power 
 of sale was limited to the case of the mortgagees being damnified by 
 paying the debts. It was held that the power of sale need not be co- 
 extensive with the condition of the mortgage, and that the remedy in 
 equity was open for every breach of the condition, whether the parties 
 had seen fit to provide for such a breach in the power of sale or not. 
 lUd. 
 
 2331. For future advances or liabilities. Where a 
 mortgage is given to secure the mortgagee for liabilities which it is op- 
 tional with him to incur or not, such mortgage is at any time a lien 
 upon the land only to the extent of the liabilities then actually incurred ; 
 and a deed given by the mortgagor and placed upon record will take 
 precedence of the mortgage as to liabilities subsequently incurred. La- 
 due V. Betroit and Milwaukee BaH/road Go., 13 Mich., 380. 
 
 2332. The mortgage being duly recorded is notice to a subsequent 
 purchaser; but he is chargable with notice only to the extent of 
 the liabilities which had been actually incurred prior to his purchase. 
 Ihid. 
 
 2333. For excessive amount. Where, in a conditional par- 
 don, the person pardoned was required to secure the payment of |1,000 
 to the county, and the county commissioners obtained a mortgage for 
 $1,150, the mortgage was held good for $1,000, and void as to the resi- 
 due. Rood V. Window, Wal. Ch., 340, and 2 Doug.. 68. 
 
 2334. For indefinite amount. A mortgage given to secure 
 all existing debts of the mortgagor to the mortgagee, is valid without 
 specifying the debts or their amounts. And a subsequent purchaser of 
 the land, with actual or constructive notice of the mortgage, takes sub- 
 ject to it. Michigan Insurance Co. v. Brovm, 11 Mich., 265. 
 
 2335. Attorney's fee in mortgage. A mortgage empow- 
 ered the mortgagee in the usual manner to sell, " rendering the surplus 
 moneys, if any there be, to the said mortgagor, after deducting the costs 
 and charges of such vendue and sale aforesaid, and also $100 as an at- 
 torney's fee, should any proceedings be taken to foreclose this inden- 
 
 296 
 
MORTGAGE OP LANDS. § 2344 
 
 ture." It was held that this fee was limited to the case of a foreclosure 
 under the power of sale ; and could not be recovered ffn foreclosure in 
 equity. Sage «. Biggs, 13 Mich., 313. 
 
 2336. Once a mortgage alvrays a mortgage, is a maxim 
 of equity. T/wmpson v. Mack, Har. Oh., 150; Batty v. Snook, 5 Mich., 
 231 ; Oomstock v. Eowwrd, Wal. Ch., 110. 
 
 2337. A mortgagor may release to the mortgagee the equity of 
 redemption for a valuable consideration, when it is done voluntarily, 
 and there is no fraud, and no undue influence is brought to bear upon 
 him for that purpose by the creditor ; but this cannot be done by an 
 executory contract, by which the equity of redemption is to be forfeited 
 if the mortgage debt is not paid by the day stated in such contract. 
 Batty V. Snook, 5 Mich., 231. 
 
 2338. Right to possession. The mortgagee at the common 
 law is entitled to possession of the land mortgaged, and the Court of 
 Chancery will not prevent him from taking possession, or, if he is in 
 possession, deprive him of it, so long as there is anything due on the 
 mortgage. Schwarz v. Sears, Wal. Ch., 170. 
 
 2339. The legal title to the lands mortgaged was, at the common 
 law, in the mortgagee, who might, at any time after default, if not 
 before, unless the mortgage should otherwise provide, put the mortga- 
 gor out by ejectment. Stevens v. Brown, Wal. Ch., 41 ; Mundy v. Mon- 
 roe, 1 Mich., 68. 
 
 2340. But now it is provided by statute that " No action of eject- 
 ment shall hereafter be maintained by a mortgagee, or his assigns or 
 representatives, for the recovery of the mortgaged premises, until the 
 title thereto shall have become absolute upon a foreclosure of the mort- 
 gage." Comp. L., § 4614 This statute is invalid as applied to mortgages 
 given before its passage. Mundy v. Monroe, 1 Mich., 68 ; Blackwood v. 
 Van Vleet, 11 Mich., 252. 
 
 2341. The effect of this statute is to take away, not merely the right 
 to bring ejectment, but all right to the possession of the premises until 
 foreclosure. Baker v. Pierson, 5 Mich., 456 ; Caruthers v. Humphrey, 12 
 Mich., 270 ; Orippen v. Morrison, 13 Mich., 23. 
 
 2342. The mortgagor now having a legal right to possession until 
 the mortgage is foreclosed, may make any arrangement for the use and 
 enjoyment that any other person might during his term. Orippen v. 
 Morrison, 13 Mich., 23. 
 
 2343. Tacking. The English doctrine of tacking mortgages has 
 never been adopted in this country. Wing v. MeDowM, Wal. Ch., 175. 
 
 2344. Defeasance : record of. An agreement in the nature 
 of a defeasance is required by statute to be recorded only when it 
 
 297 
 
§ 2353 MORTGAGE OF LANDS. 
 
 relates to a conveyance which, on its face, purports to be absolute. 
 Russea V. WaitefWal. Ch., 31. 
 
 3345. Riglits of subsequent mortgagees. Anything done 
 by a first mortgagee to the prejudice of a second, with a knowledge of 
 the second mortgage, should, to the extent of such injury, postpone the 
 first to the second mortgage. Bailey v. Gould, Wal. Ch., 478 ; James v. 
 Brown, 11 Mich., 25. See post, 2373, 2374 
 
 2346. But the rule of notice, in such case, is different from the rule 
 equity acts on to protect bona fide purchasers. Where one purchases 
 property which was subject to an equity in the seller's hands, it is 
 enough that he have knowledge of such facts and circumstances indica- 
 ting the equity as would have led a prudent man to inquire in regard to 
 it, and that he omitted to do so ; while in the case of mortgages, the ex- 
 istence of the second mortgage should be clearly brought home to the 
 knowledge of the first mortgagee, in such a way that any act injuriously 
 affecting the interests of the subsequent mortgagee will show an inten- 
 tional disregard of the interests of such subsequent mortgagee. James 
 V. Brown, 11 Mich., 25. And see Cooper v. Bigley, 13 Mich., 463. 
 
 3347. Notice of a prior incumbrance to charge a subsequent incum- 
 brancer or purchaser, need not come from a party in interest. WiUcox v. 
 Hia, 11 Mich., 256. 
 
 334§. Such notice as men usually act upon in the ordinary affairs of 
 life, is all that can be required. If it is sufficient to direct attention to 
 to the prior right, and to enable its nature to be ascertained by in- 
 quiry, it is enough. Ibid. 
 
 3349. Taxes. Taxes upon mortgaged lands are as much a lien 
 upon the mortgaged interest as upon the equity of redemption ; and 
 where one having a second mortgage allows the land to be sold for 
 taxes and obtains a tax deed, he cannot use it adversely to the first 
 mortgage. Morton v. IngersoU, 13 Mich., 409. 
 
 2350. Merger. Where one owning the equity of redemption of 
 lands which are subject to two mortgages, buys in the first, and takes 
 an assignment thereof to himself, such mortgage is not thereby merged 
 in the fee. Dutton v. Ives, 5 Mich., 515. 
 
 3331. The purchase, by a mortgagee, of the equity of redemption 
 will not merge the mortgage, where there are intermediate rights, or 
 the interest of the mortgagee requires that the titles should be kept 
 separate. Gooper n. Bigley, 13 Mich., 463. 
 
 3353. Assignment. The assignment of a debt secured by a 
 mortgage carries with it the mortgage, as an incident to the debt, 
 although there is no mention made of the mortgage in the assignment. 
 So the assignment of a part of a debt, or of one of several notes, secured 
 by a mortgage, carries with it a proportional interest in the mortgage, 
 298 
 
MORTGAGE OF LANDS. § 2360 
 
 UHless it Is otherwise agreed between tlxe parties at the time. Coope/r t. 
 Ulmann, Wal. Ch., 251. See also Mwrtin ». McBeyndda, 6 Mich., 70 ; 
 Dougherty v. BandaU, 3 Mich., 581. 
 
 3353. "Where there are several notes falling due at different times, 
 the fact that one note becomes due first will not, of itself, give it a pre- 
 ference over the rest, where the mortgaged premises are insufficient to 
 pay the whole. But by agreement the assignor may, if he see fit, give 
 it such preference. Cooper v. Uhnann, Wal. Ch., 251. 
 
 3354. The assignment of a mortgage, without the debt which it is 
 given to secure, carries no beneficial interest in the mortgage to the as- 
 signee, who would hold it subject to the will and disposal of the 
 creditor. Bailey v. Qovld, "Wal. Ch., 478. 
 
 3335. Void proceedings having been taken to foreclose a mortgage, 
 and the holder of the mortgage having bid in the premises, he after- 
 wards sold them and gave a warranty deed thereof. It was held, that 
 this deed conveyed his mortgage interest in the lands. NUes v. Bans- 
 ford, 1 Mich., 338. See post, 2363. 
 
 2356. It is no defense to a bill for foreclosure by the assignee of a 
 mortgage, that the assignment to him was without consideration. 
 The mortgagor has no interest in the question whether the assignment 
 was for or without consideration, except as the want of it may enable 
 him to make available any defense he might have had as against the 
 mortgagee. Adair v. Adair, 5 Mich., 204. 
 
 3357. Assignment subject to equities. The assignee of a 
 mortgage takes it subject to all equities existing between the parties to 
 it at the time of the assignment. BusseU v. Waite, "Wal. Ch., 81 ; Dutton 
 V. Jvea, 5 Mich., 515 ; Nichols v. Lee, 10 Mich., 526 ; Bloomer i>. Sender- 
 son, 8 Mich., 395. 
 
 2358. But if the mortgage is given to secure a negotiable promis- 
 sory note, and is assigned before the note is due, the assignee is not 
 affected by any equities between the original parties. Dutton v. Ives, 5 
 Mich., 515 ; Beeves v. SevUy, "Wal. Ch., 248. 
 
 3359. Nor does the assignee take the mortgage subject to any equi- 
 ties which any third person may have against the mortgagor. "Where 
 he has purchased the mortgage in good faith, it is not subject in his 
 hands to any equities between the mortgagor and his grantor, growing 
 out of the fraud of the mortgagor in procuring the title to the land. 
 Bhorrwr v. Henderson, 8 Mich., 395. 
 
 2360. Account by mortgagee in possession. Where the 
 mortgagee has been in possession of the mortgaged premises, and the 
 mortgagor comes with his money to redeem, the mortgagee must ac- 
 count for the profits of the mortgaged premises, of which the crops he 
 
§ 2369 MORTGAGE OF LANDS. 
 
 may have appropriated or destroyed will be considered a part. Stecena 
 B. Brovm, Wal. Ch., 41. 
 
 2361. Annual rests directed in adjusting accounts, and interest com- 
 puted on each item of the account, where this course was found to he 
 warranted by the practice of the parties. Emerson v. Atwater, 12 Mich., 
 314. 
 
 2362. ForecIo§are under poiver of §ale. If irregular, 
 the mortgagee may waive it, and proceed anew in equity. Atwater e. 
 Kinman, Har. Ch., 243 ; OObert v. Codey, "Wal. Ch., 494. 
 
 2363. If a sale takes place under irregular proceedings, though it 
 is no bar to the equity of redemption, yet the purchaser at such sale 
 succeeds to all the interest of the mortgagee, and a bill to foreclose the 
 mortgage must be filed by him. CHIbert v. Cooky, "Wal. Ch., 494. See 
 supra, 3355. 
 
 2364. Under the Revised Statutes of 1838— p. 501, Ch. 8— it was 
 held that where a mortgage was foreclosed under the power of sale, for 
 default in the payment of one of several instalments, and the mortgaged 
 premises were bid off for the amount of such instalment only, they were 
 thereby forever disincumbered of the mortgage. Kimmell v. WWlard's 
 Administrators, 1 Doug., 217. But now it is provided by statute that 
 each instalment " shall be taken and deemed to be an independent 
 mortgage, and such mortgage for each of such instalments may be fore- 
 closed in the same manner, and with the like effect, as if such separate 
 mortgages were given for each of such subsequent instalments," &c. 
 Com^. L., % 5178. 
 
 2365. An assignment pending the foreclosure proceedings puts an 
 end to them, and a sale afterwards made under an advertisement in the 
 name of the assignor does not cut off the equity of redemption. NUes v. 
 Bansford, 1 Mich., 338. 
 
 2366. Under the statute— Comp. L., § 5183, 5187— if the premises 
 consist of several parcels not adjoining each other, the sale of the par- 
 cels must be separate, and the deed given in pursuance of the sale must 
 show the price at which each parcel was sold. Lee v. Mason, 10 Mich., 
 403. 
 
 2367. Where the deed given on such a sale was for several parcels, 
 for one sum named as the purchase price of all, the foreclosure was 
 held invalid. Jbid. 
 
 236§. The foreclosure is not void by reason of the sheriff erroneously 
 stating the time of redemption, in his certificate indorsed upon the 
 deed, as one year instead of two. To avoid the foreclosure it must be 
 shown that a tender of the redemption money was actually made within 
 the two years. Johnstone v. Scott, 11 Mich., 232. 
 
 2369. An aflSdavit of publication of notice of sale, made between 
 300 
 
MORTGAGE OF LANDS. § 2376 
 
 seven and eight years after the sale took place, was held not presump- 
 tive evidence of the facts therein stated, under R. 8. 1838, p. 501 
 § 9. Mundy v. Monroe, 1 Mich., 68. 
 
 2370. Foreclosure In equity: marshalling securi- 
 ties. Upon the foreclosure of a mortgage upon premises which have 
 been conveyed or incumbered in parcels subsequently to the mortgage, 
 the premises should be sold in the inverse order of such conveyances or 
 incumbrances, unless the mortgagee will be prejudiced by having the 
 property so sold. And this rule does not depend upon the existence 
 or non-existence of covenants of warranty. Cooper «. Bigley, 13 Mich., 
 463. 
 
 3371. An exception of the mortgage from the covenants of war- 
 ranty contained in a subsequent deed of the lands, could not affect 
 the grantee's equitable rights in reference to the order of sale of the 
 property covered by said mortgage. Ibid. 
 
 2373. One who purchases a parcel of land, subject to a mortgage 
 upon that and other property, and with full record notice of a con- 
 veyance of the other property, gets no greater rights by virtue of such 
 purchase than his grantor had ; and in a suit for the foreclosure of the 
 prior mortgage, and to marshal the securities, he is not in a position 
 to attack such deed for want of consideration. Ibid. 
 
 3373. Where two persons have a lien on the same piece of property, 
 which is not sufficient to satisfy both, and one of them has a lien for his 
 debt on another piece of property, he must exhaust the latter before re- 
 sorting to the common fund. Trowbridge v. Harleston, Wal. Ch., 185. 
 
 3374. Where A. had a mortgage upon lots one, two and three, and 
 B. had a subsequent mortgage upon lot three, and they,having no know- 
 ledge of conveyances which had been made of lots one and two subse- 
 quently to their mortgages, conjointly released a part of lot three, it was 
 lidd that B.'s equitable right to have lots one and two first sold was not 
 thereby affected. Cooper v. Bigley, 13 Mich., 463. 
 
 2375. Effect of decree on defendant's rights. Where 
 one is made defendant in a foreclosure suit, who is holder of both a 
 second mortgage on the lands and a chattel mortgage of fixtures, the de- 
 cree in the usual form will bar his rights under the mortgage of the 
 lands, but will leave his chattel mortgage unaffected. Crippen v. Mor- 
 rison, 13 Mich., 23. 
 
 2376. Surplus moneys on foreclosure. A levy of execu- 
 tion on the mortgaged lands, made at a time when the mortgagor (and 
 judgment debtor) had no title to it, and not followed by any sale by vir- 
 tue of it, will not entitle the judgment creditor to the surplus moneys 
 after foreclosure, notwithstanding the mortgagor, pending the foreclos- 
 
 301 
 
§ 2383 MORTGAGE OP LANDS. 
 
 ure proceedings, became vested with the title to the land subject to the 
 mortgage. Smith v. Smith, 13 Mich., 258. 
 
 2377. Conveyance by mortgagor subject to mort- 
 gage. Where a part of the mortgaged premises has been aliened by 
 the mortgagor, subsequent to the mortgage, the rule in equity, on a 
 foreclosure and sale, is to require that part of the premises in which 
 the mortgagor has not parted with the equity of redemption to be first 
 sold, and then, if necessary, that which has been aliened ; and, where 
 the latter is in possession of diflFerent vendees, in the inverse order of 
 alienation. Mason v. Payne, Wal. Ch., 459. See supra, 2371-2874. 
 
 2378. But where a part of mortgaged premises is conveyed by the 
 mortgagor subject to the payment of the whole of the mortgage, that 
 part, as between the vendor and vendee, constitutes the primary fund 
 for its payment. Ibid. 
 
 2379. "Where a lot of land was conveyed by complainant subject to 
 the payment of a mortgage on certain other lands, and proceedings 
 were had in chancery to foreclose the mortgage, and the decree be- 
 came the property of one of the defendants who also purchased the 
 lot on which payment was charged, it was held that such purchase 
 amounted to a satisfaction of the mortgage to the value of the lot so 
 purchased. Tbid. 
 
 2380. Where a portion of the land covered by a mortgage is con- 
 veyed subject to the payment of the entire mortgage by the grantee, the 
 subsequent purchaser of another parcel has a right to insist that the 
 parcel so before conveyed shall be first sold to satisfy the mortgage, be- 
 fore resort is had to the parcel so purchased by himself. And on bill 
 filed to foreclose the mortgage, he need not file a cross bill to protect 
 this right, but may have the proper decree made by setting out the facts 
 in his answer. Oa/ruthers v. Hall, 10 Mich., 40. 
 
 2381. The vendee of an equity of redemption stands in the place of 
 the mortgagor, and holds the property subject to all incumbrances ; and 
 where there were two mortgages, and the mortgaged premises had been 
 sold on foreclosure at law, on the first mortgage, it was held that the 
 vendee of the equity of redemption could not, by paying the redemption 
 money, and taking an assignment from the purchaser of all his interest 
 in the land, claim the rights of such purchaser for the purpose of defeat- 
 ing the second mortgage. Johnson ». Johnson, Wal. Ch., 331. 
 
 2383. Tender discharges mortgage. Where a mortgagor, 
 after the mortgage has become due, but before foreclosure, tenders to 
 the holder the full amount due, which the latter refuses to receive, the 
 lien of the mortgage is thereby discharged ; and if a bill is afterwards 
 filed by the holder to foreclose, it is not necessary for the mortgagor 
 to bring the tender into Court, or to show that it has been kept good. 
 303 
 
MORTGAGE OF LANDS. § 2390 
 
 Cwnithera v. Eumphrey, 12 Mich., 270 ; Van Husan v. Kanouse, 13 Mich., 
 303. 
 
 2383. Redemption. If a mortgagor wishes to test in the Court 
 of Chancery the validity of a statutory foreclosure, he must file a bill to 
 redeem. He cannot file a bill to set aside the sale, and have the pro- 
 perty resold, although the mortgagee may have abused the power to 
 sell, and purchased the property himself. Sehwarz v. Sears, Wal. Ch., 
 170. 
 
 2384. A subsequent mortgagee had a right, under the Statutes of 
 1838 — p. 501, § 10 — to redeem premises sold on the foreclosure of a 
 prior mortgage. Kimmdl v. WiUard's Administrators, 1 Doug., 317. 
 
 2385. Where a subsequent mortgagee pays the redemption money 
 of the mortgaged premises to the purchaser under the foreclosure of a 
 prior mortgage, he does not succeed to the rights of such purchaser, 
 but stands in the place of the prior mortgagee ; the only additional right 
 which he acquires being the right to be reimbursed what he has paid, 
 with interest, on foreclosing his own mortgage. Jolmson v. Johnson, 
 "Wal. Ch., 331. 
 
 2386. "When a mortgagor redeems, it should always be construed as 
 payment; he being personally liable for the debt. But when his vendee 
 redeems, who is not personally liable, and there is an intervening mort- 
 gage between the one redeemed by him and his equity of redemption, 
 the same rule should prevail as in case of redemption by a subsequent 
 mortgagee. Ibid; Webb b. WiUiams, "Wal. Ch., 544. 
 
 2387. The statute of 1840 for the foreclosure of mortgages — Laws of 
 1840, p. 145 — required redemption moneys to be paid to the register of 
 deeds, and to no other person ; and it was his duty, upon such pay- 
 ment, to destroy the deed, and pay over the money to the purchaser, 
 his heirs or assigns. Woodbury v. LevAs, "Wal. Ch., 256. 
 
 2388. He had no right to receive in redemption anything but money. 
 A check upon a bank, received by him, was held to be no payment. 
 lUd. 
 
 2389. The registei's receipt is not conclusive evidence of 'the pay- 
 ment of the redemption money to him, as against a purchaser. Ibid. 
 
 2390. A., the holder of the first of five mortgages on a piece of land, 
 took proceedings in chancery to foreclose it, making all the subsequent 
 mortgagees parties except D., the last. Decree for the sale was obtain- 
 ed, and a sale made, at which B., the administrator of C, the second 
 mortgagee, became the purchaser for a few dollars over the amount of 
 the first mortgage. B. bought in his own name, but stated at the time 
 that he bought to protect the interests of the C. estate. He then filed 
 his bill against D., setting up all the facts, and praying that D. be de- 
 creed to redeem by paying the amount of both the A. and C. mortgages, 
 
 303 
 
§ 2399 MUNICIPAL CORPORATIONS. 
 
 and costs, or be foreclosed. D. filed a cross bill, claiming the right to 
 redeem on paying the amount of B.'s bid, with interest. The mortgaged 
 premises were shown to be worth at least the amount of the A. and C. 
 mortgages. Held that D. could not be permitted to redeem without pay- 
 ing the amount of both. Bakerv.Pierson, 6 Mich., 532. 
 
 2391. Payment and satisfaction. Where one holding pro- 
 perty in mortgage converts it to his own use, the mortgage debt is there- 
 by satisfied to the extent only of the value of the property. Davis v 
 Rider, 5 Mich., 423. And see. Place v. Grant, 9 Mich., 42. 
 
 3392. An agreement to discharge a mortgage in consideration of 
 something to which the holder was legally entitled before, is void for 
 want of consideration. Dams v. Rider, 5 Mich., 423. 
 
 2393. A quit claim deed from the mortgagee to the owner of the 
 equity of redemption, who is liable to pay the mortgage debt, discharges 
 the mortgage. Jerome v. Seynumr, Har. Ch., 357. 
 
 2294. Where one pays a mortgage as the agent and with the funds 
 of the mortgagor, and instead of having it discharged, causes it to be 
 assigned as security for a debt owing by himself, the assignee cannot 
 hold the mortgage as against the mortgagor or his heirs. Nichols v. 
 Ue, 10 Mich., 526. 
 
 MUNICIPAL CORPORATIONS. 
 
 2395. Nuisance l>y. A municipal corporation which creates a 
 public nuisance, is prima facie liable for its continuance. Pennoyer v. 
 Saginaw, 8 Mich., 534. 
 
 2396. Injunction against. If Courts of equity have jurisdic- 
 tion to interfere by injunction, to restrain the action of a municipal cor- 
 poration, on a bill filed by a tax payer on behalf of himself and other tax 
 payers, the circumstances to authorize such interference must be such 
 as to show that the proposed action will be inequitable and injurious 
 to the public interest. Chaffee n. Granger, 6 Mich., 51. 
 
 2397. Se'wers. A municipal corporation is not liable for damages 
 arising from the insufficiency or defective construction of a public sewer, 
 where such damages result directly to the party injured from his use of 
 it for his private convenience. Dermont v. Mayor, <fcc., of Detroit, 4 
 Mich., 435. 
 
 2398. The payment of a sum annually by an individual for the pri- 
 vilege of connecting his drain with a public sewer, is evidence of a 
 license only, and not of an undertaking and guaranty on the part of 
 the city to furnish ample drainage for his premises. Ibid. 
 
 2399. But where an excavation in a city street for a sewer is left 
 open without being properly guarded, and an injury occurs in conse- 
 
 304 
 
NAVIGABLE WATERS. § 3407 
 
 quence to one passing along the street, the city is liable for the damage, 
 notwithstanding the contract for the construction of the sewer had been 
 let by the city to one who was bound by the contract to keep the ex- 
 cavation fenced in and carefully guarded. City of Detroit v. Corey, 9 
 Mich., 165. 
 
 2400. Legislative control over. The charter and by-laws 
 of municipal corporations are subject to the general legislation of the 
 State. Smith b. ViUage of Adrian, 1 Mich., 495. See People v. Mahawy, 
 13 Mich., 481. 
 
 2401. Suits by Romeo village. Underthe act incorporating 
 the village of Romeo (Laws, 1837-8, p. 87), a suit to recover a penalty 
 under Chap. 41 of R. 8. of 1846, should have been brought in the name 
 of the "Village of Romeo," instead of the " President and Trustees of 
 the Village of Romeo," which was the corporate name of the village 
 authorities. President, &c., of the ViUage of Borneo v. Chapman, 2 Mich., 
 179. 
 
 2402. Justices of the peace, under the Statutes of 1846, had 
 no jurisdiction of suits against municipal corporations. Boot v. City of 
 Ann Arbor, 3 Mich., 433. See also, Comp. Laws, § 3700 ; Ourney ». 
 City of 8t. Clair, 11 Mich., 203. 
 
 NAVIGABLE WATERS. 
 
 2404. Provision relative to, in Ordinance of '87. 
 Navigable waters are public highways at the common law ; and the 
 only object of the clause in the Ordinance of 1787 relating thereto, was, 
 to secure to the citizens of the States such rights, in relation to such 
 waters within the territory northwest of the Ohio, as were already pos- 
 sessed by the inhabitants of that territory ; and to prevent any tax or 
 duty on persons navigating them. La Plaisance Bay Hwrhor Co. v. City 
 of Monroe, Wal. Oh., 155. 
 
 2405. There is nothing in the ordinance prohibiting the State from 
 improving its navigable waters through a corporation empowered there- 
 to. IMd. 
 
 2406. The ordinance supersedes the common law doctrine of the 
 necessity of usage or custom to establish a public right in the navigable 
 waters of the territory, even if that rule would otherwise prevail there. 
 Moore v. Sanlorne, 3 Mich., 519. 
 
 2407. W^hat are navigable streams. The common law rule 
 that those rivers only are subject to the servitude of the public interests 
 which are of public or common use, for carriage of boats or lighters 
 and for transportation of property, has been enlarged in this country 
 so as to embrace rivers upon which, in their natural state, there is 
 
 20 305 
 
§ 3414 NAVIGABLE WATERS. 
 
 capacity for valuable floatage, irrespective of tlie fact of actual public 
 use, or the extent of such use. The fact that a floatable stream has 
 not been used by the public, or has only been used by persons fol- 
 lowing a particular occupation, does not prevent such stream assuming 
 a public character. In the new States of the Union, from necessity and 
 the nature of things, use cannot be the foundation of the public right. 
 lUd. 
 
 2408. The true test in determining the right of public use in fresh 
 water streams, as public highways, is, whether the stream is inherently 
 and inits nature, capable of being used for the purposes of commerce, 
 for the floating of vessels, boats, rafts or logs. And where it is, the 
 public easement exists, leaving to the owners of the bed of the stream 
 aH other modes of use not inconsistent with it. Ibid. 
 
 2409. It is not necessary that the stream should be susceptible of 
 navigation by boats, to render it a public highway. The servitude of 
 pubMc interest depends rather upon the purpose for which the public 
 requires its use, than upon any particular mode of use. Ibid. 
 
 2410. The public right is not affected by the fact, that the stream 
 has not a capacity for floatage, in its natural and ordinary stage, at all 
 seasons of the year. It is a valuable, and not a continual capacity for 
 use, which determines the right. Ibid.^ 
 
 2411. The term "navigable waters," as used in § 5944 of Com- 
 piled Laws, has the same meaning as in the Ordinance of 1787, and it 
 is not limited to waters where the tide ebbs and flows. Tyler v. Pec- 
 ple, 8 Mich., 330. 
 
 2412. Although in England, in the common law sense of the 
 term, those streams only are navigable in which the tide^ ebbs and 
 flows, yet all rivers and streams above the ebb and flow off the tide, 
 which are of sufficient capacity for useful navigation, are public rivers, 
 and subject to the same general rights which the public exercise in 
 highways by land, and which they possess in navigable waters. Lor- 
 man v. Benson, 8 Mich., 18. 
 
 2413. Ownership of bed of stream. The common law 
 principle, that the soil under such tlJcless public rivers to the thread 
 of the stream is in the owner of the adjacent bank, prevails here, and 
 is applicable to the Detroit river. Ibid ; overruling La Plaisance Bay 
 Turnpike Co. v. City of Monroe, Wal. Ch., 155. See the same principle 
 of private ownership applied to lake Muskegon. Bice v. Bitddiman, 10 
 Mich., 125. 
 
 2414. Rights of owner. The owner of the bank is entitled to 
 every beneficial use of the soil under the river which can be exercised 
 with a due regard to the public easement, and any trespass which inter- 
 feres with |such use — like an obstruction which prevents the taking of 
 
NEGLIGEKCE. § 3423 
 
 ice — gives him a right of action for the damages thereby occasioned. 
 Lorman v. l;enson, 8 Mich., 18. 
 
 3-115. Ulglits of tlie public. Tlie right to raft logs down a 
 sjtream docs not involve tlie riglit of booming them upon private pro- 
 perty, for safe keeping and storage. Ibid. 
 
 NEGLIGENCE. 
 
 2416. mutual. Where an injury of which a plaintiff complains is 
 the result of his own negligence or fault, or of the negligence or fault of 
 both parties, without intentional wrong on the part of the defendant, 
 no action can be maintained. WiUiams v. Michigan Central Railroad 
 Co., 3 Mich., 259. And see Michigan Central Railroad Co. v. Leakey, 
 10 Mich., 193. 
 
 2417. Respondeat superior. Where an employee is exer- 
 cising a distinct and independent employment, and is not under the 
 immediate control, direction or supervision of the employer, the latter 
 is not responsible for the negligence or carelessness of the employee. 
 Be Forest V. Wright, 3 Mich., 368. 
 
 241S. This principle applied to the case of a licensed drayman, em- 
 ployed to draw merchandise from a warehouse and deliver at the store 
 of his employer, and through whose carelessness a barrel of the mer- 
 chandise rolled against and injured the plaintiff. Ibid. 
 
 2419. To render an employer liable for the fault or negligence of 
 his employee, the injury complained of must arise in the course of 
 the execution of some service lawful in itself, but negligently or un- 
 skilfully performed. Moore v. Sanhorne, 2 Mich., 519. 
 
 2420. For the wanton violation of law by a servant, although when 
 occupied about the business of his employer, the servant alone is liable. 
 Ibid. 
 
 2421. An employer made a bargain with his employee to cut all 
 the logs the employer had on certain land, and to deliver them to the 
 employer, at a place named ; the employer having no interest in the 
 ruiming of the logs, until they reached the point of delivery, nor ob- 
 liged to render any assistance, pecuniary or otherwise, in the cutting or 
 running of the logs. It was held that the relation of master and ser- 
 vant did not exist, and that the employee alone was liable for any injury 
 occasioned to others by his conduct in performing his contract. Ibid. 
 
 2422. liiability to employee. See the principle recognized, 
 that an employer is not liable to an employee for an injury resulting 
 from the negligence of another employee while engaged in the same 
 general employment. Michigan Central Bailroad Co. v. Leakey, 10 Mich., 
 199. 
 
 307 
 
§ 2428 NOTICE. 
 
 3423. mnniclpal corporations: negligence of con- 
 tractor. Although in ordinary transactions the relation of contractor 
 excludes that of principal and agent, or master and servant, yet there 
 is not necessarily such a repugnance between them that they cannot 
 exist together. City of Detroit v. Corey, 9 Mich., 165. 
 
 2424. In the case of one contracting -with a municipal corporation 
 for the construction of a sewer through one of its public streets, both 
 relations necessarily exist, from the peculiar character of the case. The 
 contractor has no right to make the excavation for the purpose, except 
 as agent of the corporation ; and, if proceeded against by indictment for 
 creating a public nuisance, could not justify in his own right, but only 
 as agent of the corporation under the contract. Ibid. 
 
 2425. Ihe power conferred upon the city of Detroit to construct 
 sewers under public streets, is not a power given to the city for gov" 
 ernmental purposes, or a public municipal duty imposed on the 
 city — ^like that to keep its streets in repair, or the like — ^but a special le- 
 gislative grant to the city for private purposes. The sewers of the city, 
 like its works for supplying the city with water, are the private property 
 of the city; the coi-poration and its corporators — the citizens — are alone 
 interested in them : the outside public, or people of the State at large, 
 have no interest in them, as they have in the streets of the city, which 
 are public highways. IHd. 
 
 2426. The city takes this power with the understanding that it shall 
 be so exercised as not unnecessarily to interfere with the rights of the 
 public, and that all needful and proper measures shall be taken, in the 
 execution of it, to guard against accident to persons lawfully using the 
 highways at the time. The city is bouiid for the performance of these 
 obligations, and cannot rid itself of their performance by executing the 
 power through an agent. lUd. 
 
 2427. The city of Detroit let to the lowest bidder, as required by its 
 charter, the contract for the construction of a sewer through one of its 
 streets. The contract bound the contractor at all times to keep the ex- 
 cavation fenced in, and carefully guai'ded to prevent accidents; and pro- 
 vided that the contractor should be liable for all damages that might arise 
 from accidents caused by his neglect. For want of proper guards to 
 the excavation, an injury occurred to a person passing along the street. 
 Held, that the city was liable therefor. Ibid. 
 
 NOTICE. 
 
 242§. In equity, that is notice of a right which is sufficient to put 
 parties on inquiry. Norris v. Showerman, 2 Doug., 16. And see, Bood v. 
 Chapin, AVal. Ch., 79 ; Oodfroy v. Bkbrow, Wal. Ch., 260 ; Diabrow r. 
 308 
 
OFFICER. § 2434 
 
 J<mes, Har. Ch., 48 ; Hubbard v. Smith, 3 Mich., 207 ; Bloomer v. Hen- 
 derson, 8 Mich., 395 ; James v. Brown, 11 Mich., 25 ; WiUcox v. Hill, 11 
 Mich., 256. 
 
 2429. Through title deeds. Where a purchaser cannot malce 
 out a title but by a deed which leads him to a certain fact, he must be 
 presumed to have knowledge of that fact. Norris v. HiU, 1 Mich., 202; 
 Fitzhugli v. Barnard, 12 Mich., 104 
 
 NOVATION. 
 
 2430. Evidence that a debtor offered to pay the debt to the assignee 
 of the contract, provided the time of payment should be extended, does 
 not make out a case of novation, which makes it necessary to sue in 
 the name of the assignee. Tej^t v. McN'oah, 9 Mich., 201. 
 
 NUISAIjrCE. 
 
 2431. Abatement of. The power to abate a nuisance consists 
 in the removal of that in which the nuisance consists. Welch v. StoweU, 
 2 Doug., 882. 
 
 2432. The nuisance of a house of ill-fame consists not in the build- 
 ing itself, but in its being used as a resoit for purposes of prostitution. 
 And neither individuals, nor the common council of a city under the 
 statute empowering it " to make all such by-laws and ordinances as 
 may be deemed expedient for the purpose of preventing and suppress- 
 ing houses of ill-fame within tb e limits of the city, " have the right to 
 abate the nuisance by demolishing the building. Ibid. 
 
 OFFICER. 
 
 2433. Protection by proce§8. Where a defendant, in an 
 action of replevin, rests his claim to the property upon a seizure as con- 
 stable, by virtue of an execution, he must, before proving the execution, 
 show a valid judgment upon which it issued ; and he will fail to estab- 
 lish any right to the property by virtue of the levy, if it appears that 
 the judgment was void, or had been paid before th§ issuing of the 
 execution. Beach v. Botsford, 2 Doug., 199. 
 
 2434. The rule that a ministerial officer is protected in the execu- 
 tion of process, issued by a Court or officer having jurisdiction of the 
 subject matter, and of the process, if it be regular on its face and do not 
 disclose a want of jurisdiction, does not apply in such a case. That 
 rule merely protects the officer when proceeded against as a wrong 
 doer ; it confers upon him no right of property ; and in replevin the 
 
 309 
 
g 2440 OFFICEB. 
 
 right to property, and not whether the defendant is a trespasser, is in 
 issue. lUd. ' 
 
 2435. A ministerial officer executing, in good faith and without op- 
 pression, a warrant regular upon its face, and issued by an officer hav- 
 ing jurisdiction of the subject matter, will be protected by the warrant, 
 and is not required to look beyond it for his authority to serve it. Ort- 
 man v. Oreenman, 4 Mich., 291. 
 
 2436. Where an officer levied upon goods, and after offijring them 
 for sale, was informed of the existence of a mortgage upon them (which 
 mortgage did not stipulate for possession of the goods by the mortgagor), 
 and he then changed his oiTer to a sale of the defendanfs interest in the 
 goods, and sold accordingly; it was held that a sale in this form did ijot 
 protect him from liability to the mortgagee, who might either replevy 
 the goods, or recover the value from the officer and purchaser. Eggles- 
 ton V. Mundy, 4 Mich., 295. 
 
 2437. Where the jurisdiction of the subject matter, in the tribunal 
 issuing process, depends upon matter of fact, the existence of which 
 cannot be determined from the law, and which is not of public noto- 
 riety, a ministerial officer will not be held bound to ascertain it at his 
 peril, unless the law has clearly given him the right to demand the in- 
 formation and to determine the fact. People v. Bix, 6 Mich., 144. 
 
 243§. Where, therefore, the statute conferred jurisdiction of certain 
 proceedings only, as was claimed, upon the circuit court commissioner 
 of the county holding the senior commission, and did not provide a 
 period when the term of either should commence, or what should be 
 the date of the respective commissions, but the Governor might ap- 
 point and issue commissions at any time ; and no provision was made 
 for making public the fact of the priority of either, or by which it could 
 be obtained in any county office, and no power given to the sheriff to 
 demand inspection of the commissions, or to require the information 
 from the proper State office ; it was held, that the sheriff who had 
 obeyed process issued in such proceedings by the commissioner who in 
 fact held the junior commission (though the sheriff was not shown to 
 have known that fact), and delivered up, in pursuance of such process, 
 property which he had attached, was not liable on his official bond for 
 so doing. Ibid., 
 
 2439. Sale by, to biniself. A public officer charged with the 
 duty of selling property for the best price, cannot himself become the 
 purchaser. As a county treasurer, who ha= charge of the sale of lands 
 for delinquent taxes. Clute v. Barron, 2 Mich., 192. And see Walton 
 V. Torrey, Har. Ch., 259; Ingerson v. StarkweatJier, Wal. Ch., 346 ; People 
 V. TownsJiip Board of Overyssel, 11 Mich., 223. 
 
 2440. Return of, when not binding on third parties. 
 
 310 
 
ORDINANCE OF 1787. § 2446 
 
 Where a sheriflF made return to an execution that he had made levy on 
 goods on a day named, which was prior to the giving of a mortgage 
 thereon, it was held that the mortgagee was not precluded by this re- 
 turn from showing that in fact the levy was made after the mortgage 
 was given, and that a false return of the time was made by collusion 
 with the purchaser at the sheriff's sale. NaU v. Changer, 8 Mich., 450. 
 
 2441. Restricting legal term. Where the statute prescribes 
 the duration of an official term, it is not competent for the appointing 
 power to restrict the term to a shorter period in making the appoint- 
 ment. SiadUrv. City cf Detroit, 13 Mich., 346. 
 
 3442. Appointment to office when a removal of in- 
 cambent. An officer cannot be removed from his office by the body 
 possessing power for that purpose, without an intent on their part to 
 remove him. And where the duration of his term is fixed by statute, 
 and the body possessing the power of removal and appointment makes 
 a new appointment on the mistaken idea that a vacancy exists, such ap- 
 pointment does not have the effect to remove the incumbent. Ibid. 
 
 2443. Officers de facto. The actual legal right of one who is 
 the incumbent of an office cannot be tried in a collateral action between 
 third persons ; but in any such action the mere proof of user by any 
 one who knows the fact will be sufficient to show his official action valid. 
 Facey v. FuUer, 13 Mich., 527. See supra, 757. See also, Qiw War- 
 ranto. 
 
 ORDINANCE OF 1787. 
 
 2444. Superseded by State constitution. The ordinance 
 of 1787, for the government of the territory northwest of the river 
 Ohio, is no part of the fundamental law of the State, since its admission 
 into the Union. It was then superseded by the State constitution ; and 
 such parts of it as are not to be found in the Federal or State constitu- 
 tion, were then annulled by mutual consent. La Plaisance Bay Harbor 
 Co. V. City of Monroe, Wal. Ch., 155, 
 
 2445. The ordinance was enacted before the constitution of the 
 United States, with a view to the existing circumstances ; and was in- 
 tended to operate between the Confederacy and the territory as the 
 Articles of Confederation did between the States. In construing it, the 
 Articles of Confederation, and not the Federal Constitution, must be 
 looked at. Ibid. 
 
 2446. Navigable -waters. The object of the clause in the or- 
 dinance relating to navigable waters, was to secure to citizens of the 
 confederated States such rights, in relation to those waters within the 
 territory as were already possessed by the inhabitants therein ; and 
 to prevent any tax or duty on persons navigating them. There is no- 
 
 311 
 
§ 2453 PARTNERSHIP. 
 
 thing in the ordinance prohibiting the State, when formed, from im- 
 proving through corporations its navigable vraters. Ibid. 
 
 2447. The declaration in the ordinance that " the navigable waters 
 leading into the Mississippi and St. Lawrence, shall be common high- 
 ways, and remain forever free," supersedes the common law doctrine 
 of the necessity of usage or custom to establish a public right, even if 
 that rule would otherwise prevail in the region over which the ordi- 
 nance extended. Moore v. Sanbome, 2 Mich., 519. 
 
 244S. Right to form a State gOTernment. Article Y. of 
 the ordinance, secured, absolutely and inviolably, to the people of the 
 territory of Michigan, as established by act of Congress of January 11, 
 1805, the right to form a permanent constitution and State government, 
 whenever said territory should contain sixty thousand free inhabitants ; 
 and that right eould in no way be modified or abridged, or its exercise 
 controlled or restrained, by the general government. The formation of 
 the constitution and government of the State of Michigan must, of ne- 
 cessity, have preceded her admission into the Union by Congress. Scott 
 D. Detroit Toung Men's Society's Lessee, 1 Doug., 119. 
 
 2449. The assent df Congress to the admission of Michigan into the 
 Union was only necessary, because the older States possessed the 
 physical power to refuse a compliance with the terms of the compact 
 contained in the ordinance, and there was ne third party to which the 
 State could resort to enforce such compliance. Ibid. And see State 
 OF Michigan. 
 
 2450. Mlien the ordinance became operative in Mi- 
 chigan. The territory comprising the present State of Michigan re- 
 mained under the control and jurisdiction of the British Government 
 until the year 1796 ; and the ordinance of 1787 was not in force while 
 the territory was under such jurisdiction. Abbott v. Oodfroy's hews, 1 
 Mich., 178. 
 
 PARTNERSHIP. 
 
 2431. Construction of agreement for. Where the ques- 
 tion of partnership arises, not with third persons, but between the 
 parties themselves, the agreement out of which the supposed partner- 
 ship arises is to be construed as any other instrument between the same 
 parties. Bird v. Hamilton, "Wal. Ch , 361. 
 
 2452. Waiver of covenants in agreement. Where a 
 party had failed to perform the preliminary conditions, upon a com- 
 pliance with which a copartnership was to be formed, and the other party 
 to the agreement, to enable him to perform, furnished his own capital, 
 and for a short time carried on the business in the name of the proposed 
 812 
 
PARTNERSfflP. § 3461 
 
 firm, it was Md that this was no waiver, and could not entitle the de- 
 faulting party to the rights of a partner. lUd. 
 
 3453. Agency of partuers. Where a member of a mining 
 company, who was also one of the managers of the company, em- 
 ployed the plaintift to work for the company, it was held immaterial 
 whether his powers as manager were general, special or limited, if 
 the plaintiff at the time had no notice of any abridgement of his 
 powers by the articles of co-partnership. Burgam. v. Lydl, 3 Mich., 
 102. 
 
 2454. Every member of a partnership, in legal contemplation, 
 without any special powers being conferred upon him by the articles 
 of co-partnership, is not only a principal, but a general agent for all the 
 co-partners in the transaction of the company business. IMd. See 
 Moran v. Palmer, 13 Mich., 367. 
 
 2455. But one cannot bind his co-partner by any contract not 
 within the immediate scope of the partnership, unless with such co- 
 partner's knowledge and assent. Barnard v. Lapeer and Port Hwron 
 Plank Road Company, 6 Mich., 374 
 
 2456. Such knowledge and assent must be established by evidence 
 affirmatively showing it, or from which it may be clearly affirmed. 
 Ibid. 
 
 2457. That a plank road will be of incidental benefit to a co-part- 
 nership engaged in the lumber business, will not authorize one partner, 
 without the assent of the other, to bind the firm by a subscription to 
 the stock of a corporation organized for constructing such road. lUd. 
 
 245§. Where one partner subscribed the name of the firm to stock 
 in a corporation, without the assent of the co-partner, it was held that 
 the latter did not recognize his relation as stockholder in the corpora- 
 tion, and become liable to pay the subscription, by failing to express 
 his dissent when demand of payment was made upon the firm. IMd. 
 
 2459. A partner binds his firm only on the theory of an implied 
 agency for the purposes of the mutual adventure ; and the agency does 
 not extend beyond what may be fairly regarded as coming within its 
 reach. Sotchin v. Kent, 8 Mich., 536. 
 
 2460. The articles of a joint stock mercantile association prohibited 
 the officers intrusted with the conduct of its business from making pur- 
 chases on credit. They, notwithstanding, made a purchase on credit, 
 first giving the seller a copy of the articles. Sdd, that the association 
 were not liable for the purchase, unless subsequently ratified by them ; 
 and that the officers themselves were not competent to ratify their own 
 unauthorized act. Ibid. 
 
 2461. The receipt of the goods by the association, or even the sale 
 of them in the course of their business, would not alone amount to a 
 
 313 
 
§ 2469 PARTNERSHIP. 
 
 ratification, since the members could not be supposed to know that the 
 purchase was made in violation of their articles. Ibid. 
 
 2462. Execution of a specialty. As a general rule one 
 partner cannot execute a specialty in the name of the firm, binding, as 
 such, upon the firm. Fox v. Ifortoh, 9 Mich., 307. And see Sweetser v. 
 Mead, 5 Mich., 107. 
 
 2463. A bond was declared upon as the individual bond of two de- 
 fendants. The bond ofiered in evidence was signed by one with the 
 name of a co-partnership composed of the two, but there was no evi- 
 dence 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. It was 
 held, that the action could not be maintained. Fox v. Norton, 9 Mich., 
 307. 
 
 2464. Presumption of authority. Where one member of 
 a co-partnership gives a note in the co-partnership name, the presump- 
 tion is that it is given for partnership purposes; and the burden of 
 proof is upon the co-partnership to show the contrary. Littdlv. Fitch, 
 11 Mich., 535. 
 
 2465. Ratification. Where a third person does an act for the 
 benefit of a partnership, a subsequent ratification of it, during the part- 
 nership, by one of its members, is a Ratification by all. Lydl v. San- 
 bourn, 3 Mich., 109. See further as to ratification, supra, 3458 to 2461. 
 
 2466. Where two persons who have entered into a contract for a co- 
 partnership rescind it, one of them has no power afterwards to bind the 
 other by ratifying a contract previously made by them, and which was 
 void under the statute of frauds when made. Chamberlain v. Dmc, 10 
 Mich., 319. 
 
 2467. Notice by retiring partner. Where a member of a 
 mining co-partnership assigns his stock in the company to a third person, 
 he is still liable as a co-partner for debts subsequently contracted by 
 the company to a person who had no notice of his withdrawal. Burgan 
 •0. Lyea, 3 Mich., 103. 
 
 2468. Admission l»y partner. The acknowledgment by one 
 partner during the continuance of the partnership, of a debt as due by 
 the partnership, wUl amount to a promise binding on the firm. Ibid. 
 
 2469. One partner cannot, after the dissolution of the firm, create a 
 . new partnership contract by his admission, nor revive a claim against 
 
 the firm which has been barred by the statute of limitations. But ex- 
 "cept as to claims so barred by the statute, and others coming within a 
 similar reason, the admission of one partner, made after such dissolu- 
 tion, having reference to previous actual partnership dealings or tran- 
 sactions, stands upon the same ground, and is evidence against the firm 
 314 
 
PABTNERSHIP. § 3476 
 
 in like manner, as if made before the dissolution. Pmnoyer v. David, 8 
 Mich., 407. 
 
 247©. But such admission, made after dissolution, must be confined 
 to cases where there has been in fact previous partnership dealings 
 •n-ith the plaintiff, or some transaction with the firm out of which a 
 partnership liability to the plaintiff might have originated ; and the fact 
 that there have been such dealings or such transaction, must be shown 
 by some evidence outside of the admission itself. Ibid. 
 
 2471. Partnership real estate. In equity, as between part- 
 ners themselves, real estate purchased by them with partnership effects 
 is partnership property, and, on the dissolution of the firm, should be 
 divided as such, each party taking the same share in it as in the per- 
 sonal property, unless at the time of the purchase it was understood not 
 to be a partnership transaction. Thayer v. Lane, Wal. Ch., 200. 
 
 3472. Lands conveyed to the members of a partnership in satisfac- 
 tion of a partnership debt, are to be regarded, for all purposes of ar- 
 ranging balances between the partners, paying debts and closing up the 
 partnership business, as personal property. And where one of the 
 partners afterwards exchanged a lot so received for another, giving a 
 deed in his own name alone, and the lot so received in exchange was 
 sold by him, and the proceeds received by the partnership, it was held 
 that the Court must presume knowledge of the exchange by all the 
 partners, and that the receipt by the partnership of the proceeds of the 
 lot sold, estopped the heirs of the partners not joining in the convey- 
 ance from afterwards setting up a claim to the first mentioned lot. 
 Morayi v. Palmer, 13 Mich., 367. 
 
 2473. Suits by partners. Where plaintiffs bring suit as part- 
 ners composing a certain firm, it is necessary for them to prove that 
 they compose the firm before giving evidence of transactions between 
 the firm and the defendants. Lee v. Hard grave, 3 Mich., 77. 
 
 2474. Partners must sue in their individual names. A writ of rs- 
 plevin issued on behalf of partners in the name of their firm, is a 
 nullity. Smith v. OanfieLd, 8 Mich., 498. 
 
 2475. An agreement for the formation of a limited partnership, exe- 
 cuted under the laws of another State, but not recorded so as to become 
 effectual for the purposes designed, has no tendency to prove an actual 
 general partnership between the persons named in it, in the absence of 
 extrinsic evidence to show that they had actually entered into business 
 as partners. Or ay v. Oihson, 6 Mich., 300. 
 
 2476. Where plaintiffs sue as partners, not upon any contract made 
 or dealings had with them as such, nor upon negotiable paper, and the 
 partnership is put in issue, the real question to be submitted to the jury 
 is, whether the plaintiffs are partners as between themsdves, and not 
 
 315 
 
§ 2484 PARTNERSHIP. 
 
 whether they have, in any way, made themselves liable as partners to 
 third persons. And it is erroneous for the Court to charge the jury, 
 that if the evidence shows the plaintifis have made themselves partners 
 as to third persons, they have in fact become general partners, and as 
 such are entitled to maintain the action. IIM. 
 
 2477. Whether persons are partners inter se is to be determined by 
 the understanding and intention of the parties as between themselves ; 
 and they cannot be made such without the assent of every member, and 
 his actual intention to become a member. Ibid. 
 
 247S. Fraud upon the firm by a partner. If one mem- 
 ber of a co-partnership enter into a transaction on his own behalf 
 which is within the scope of the partnership business, his co-partners 
 may insist that it is a fraud upon them, and claim the benefits resulting 
 from it. But this is a right which the partners alone can assert, and is 
 not available to third persons, for the purpose of fixing a liability upon 
 the partnership, when such claim has not been asserted. Lockwood v. 
 Beckwith, 6 Mich., 168. 
 
 2479. The acts and declarations of a partner actually engaged in an 
 adventure in his own name, cannot be proved for the purpose of fixing 
 a liability upon the partnership in respect to such adventure. Ihid. 
 
 2450. Bankruptcy of the partners dissolves the partnership. 
 And if, after the bankruptcy, the partners continue the same kind of 
 business, under the same partnership name, it is a new partnership. 
 Atwood V. OtUett, 2 Doug., 206. 
 
 2451. Remedies of creditors : receiver. It is no objec- 
 tion to the appointment of a receiver to take charge of partnership 
 effects, that one of the partners has assigned his interest therein to h 
 third person. Kirby v. IngersoU, 1 Doug. 477. 
 
 24§2. Suit against survivor. The presentation to and allow- 
 ance by commissioners on the estate of a deceased partner, of a partner- 
 ship debt, does not make it necessary, in an action by the creditor 
 against the surviving partners for the same debt, to show that he has 
 exhausted his remedy against the estate of the deceased partner. Man- 
 ning V. WiMiams, 3 Mich., 105. 
 
 24§3. A surviving partner having the legal right to the possession 
 of the partnership property, a Court of equity will not deprive him of 
 that right, unless upon proof of mismanagement, or danger to the part- 
 nership effects. Connor «. Allen, Har. Ch., 371. 
 
 24§4. Rights of representatives of a deceased part- 
 ner. Where one of several partners dies, and the business is carried 
 on by the survivors without the assent of his representatives, they 
 have, as a general rule, the election to demand interest on the amount 
 316 
 
PAYMENT. § 2493 
 
 of the share of the deceased, or to take a share of the profits. MiUard v. 
 Bamsddl, Har. Ch., 373. 
 
 24§5. Rights of creditors in the property. As between 
 the creditors of a previous firm, and the separate creditors of a partner 
 who continued the business and was the sole visible owner of the 
 property employed in trade, and where the separate creditors had given 
 credit, relying on the property employed in trade for payment, such 
 creditors should be preferred to the creditors of the firm. Topliff v. 
 VaU, Har. Ch., 840. 
 
 24§0, The creditors of a partnership have a right to payment out 
 of the partnership effects, in preference to the creditors of an individual 
 partner. Ibid. 
 
 2487. In the absence of any agreement to the contrary, it is fair to 
 presume that a surviving partner does not intend that the partnership 
 property shall be used for the Individual benefit of a partner who con- 
 tinues the business, leaving the debts of the firm unpaid ; and this was 
 held to be the presumption where the retiring partner transferred the 
 partnership eifects to a partner continuing the business, who agreed to • 
 pay the partnership debts, and gave bond to that eflfect. Ibid. 
 
 2488. Dissolution of the co-partnership puts an end to the au- 
 thority of one partner to bind the other by contracts. If the firm has 
 been discharged from its debts in bankruptcy, he cannot revive a debt 
 afterwards by an acknowledgment of it. Atwood v. Gfittett, 2 Doug., 206. 
 
 PAYMENT. 
 
 2489. By note. The giving of a promissory note or other secu- 
 rity for goods sold is no payment, unless it is specially agreed to be so 
 taken. Gardmr v. Gorham, 1 Doug., 507. See Sorrd ®. Brewster, 1 
 Mich., 378. 
 
 2490. Where goods were sold, and securities, executed by third 
 persons, were received for the purchase price, one of which the vendor 
 collected, and the other offered to return; it was Jield, in an action 
 brought by the vendor for goods sold, that whether the securities were 
 received by him in payment for the goods sold was a question for the 
 jury, and it was erroneous for the Court to exclude evidence offered by 
 the plaintiff from which it might be inferred that there was no such 
 agreement. Gardner u. Gorham, 1 Doug., 507. 
 
 2491. The understanding and assent of the parties that securities 
 taken shall be received in payment, may be proved by their subsequent 
 acts and conduct, as well as by direct proof of an express agreement. 
 Hotchin i>. Seeor, 8 Mich., 494. 
 
 2492. The note of two of several partners was taken for a partner- 
 
 317 
 
8 2500 PAYMENT. 
 
 ship debt, and this note was afterwards paid in part, and notes on 
 longer tiiue taken for the balance. Suit being brought against the flrm 
 on the origirial debt, the Court was asked by defendants to charge the 
 jury, that it was not absolutely necessary to show an express agreement 
 on the part of the plaintiffs to receive the note in payment, but that if 
 the jury find, from all the circumstances of the case, and the subsequent 
 acts of the plaintiffs in regard to the note, that they had acted and 
 treated it as their own, and as receivedjn payment of their claim, then 
 the jury were authorized to take such facts into consideration, and find 
 that it was received in payment if the evidence satisfied them that such 
 was the fact. Held, that this request presented substantially a correct 
 view of the law, and the Court erred in declining to charge accordingly. 
 Ibid. 
 
 2493. Where the vendor of lands takes the note or obligation of a 
 third party for the purchase price, the presumption is that it is taken in 
 payment, and not merely as security. Sewrs v. Smith, 3 Mich., 243. 
 
 2494. Payment as an admission of tbe debt claimed. 
 Pajrment by the defendant to the plaintiflf, pending an action of assump- 
 sit, of part of the demand to secure which the action is brought, is not 
 equivalent, in its effect as an admission of the cause of action, to a pay- 
 ment of money into Court. Galloway v. Holmes, 1 Doug., 330. 
 
 2495. Indorsements upon notes, unexplained, prove pajTnent, 
 and whether explained or not, prove an extinguishment and release of 
 liability to their extent as between the parties, unless it be shown that 
 they were not intended so to operate. Morris v. Morris, 5 Mich., 171. 
 
 2496. But indorsements are not of themselves evidence of payment, 
 as against the debtor, to take the case out of the operation of the stat- 
 ute of limitations [Comp. L., § 5377]. Michigan Insurance Company i\ 
 Brown, 11 Mich., 205. 
 
 2497. Presumption of payment can never arise from lapse 
 of time alone, short of the period of limitations fixed by law. Adair r. 
 Adair, 5 Mich., 304. 
 
 249§. But on bill to foreclose a mortgage given to secure a note, it 
 was }' 1.1 that the law did not raise a presumption of non-payment, but 
 of payment, when due, unless the contrary is shown by the production 
 of the note, or evidence accounting for it. Bailey v. Oovld, Wal. Ch., 
 478. See Young v. McEee, 13 Mich., 552. 
 
 2499. Purcliase of lien w^hen a payment. For a case 
 where a party, under an agreement to pay for lands by taking up in- 
 cumbrances upon it, was held to have satisfied an incumbrance by buy- 
 ing it in, see Michigan Insurance Co. «. Kibbee, 6 Mich., 410. 
 
 2500. When a mortgagor redeems, it should always be construed as 
 a payment ; he being personally liable for the debt. But when his 
 
 318 
 
PLANK ROAD COMPANIES. § 2507 
 
 vendee redeems, who is not personally liable, and there is an interven- 
 ing mortgugL between the one redeemed by him and his equity of 
 redemption, tlie same rule should prevail as ia case of a redemption by 
 a subscqr.tni mortgagee. Johnson 11. Johnson, Wal. Ch., 331. 
 
 2501. Written order as proof of. A written order direct- 
 ing the drawee to pay what money he has of the drawer's, without 
 specifying any sum, is not of itself proof in the hands of the drawee of 
 the payment of any sum, but only of autlwrity to pay to the person 
 named in the order. Beardslee v. Sorton, 3 Mich., 560. 
 
 2502. Application of. A debtor, upon paying money to his 
 creditor, has a right to say on which one of several demands the pay- 
 ment shall be applied. Tluiyer v. Benton, 4 Mich., 193. 
 
 2503. Where the application has been once made upon a joint debt, 
 it operates to extinguish so much of the debt, and the application can- 
 not be subsequently changed by the concurrent act of the creditor and 
 paying debtor, and the claim thus revived, without the consent of the 
 co-debtor. lUd. 
 
 2504. Where one has given an undertaking, that if the person to 
 whom it is addressed Will let the bearer have a bill of goods, he will see 
 the amount paid in a reasonable length of time, and the goods are de- 
 livered accordingly, the first moneys afterwards received by the creditor 
 on the debtor's general account, must be applied on the purchase under 
 this guaranty. Oard v. Stevens, 12 Mich., 292. 
 
 2505. What an officer may receive. A sheriff or consta- 
 ble has no power to receive anything except the legal currency of the 
 United States on an execution in his hands for collection, and if he does 
 so, without special instructions, it is at his own risk. Seald u. Sennit, 
 1 Doug., 513. This rule applied to justices of the peace in the same 
 case, and also in WdcA v. Frost, 1 Mich.,, 30. 
 
 PHYSICIAlsrS. 
 
 2506. Proof that one practices as a physician, is prima facie evidence 
 of his professional character. The question whether one is a practicing 
 physician within the meaning of the exemption laws, relates rather to 
 the business in which he is engaged, than to the degree of skill with 
 which he exercises it ; though some degree of skill is necessary. Sutton 
 V. Facey, 1 Mich., 343. 
 
 PLANK ROAD COMPANIES. 
 
 2507. Taking higtaivays by. Section four of the charter of 
 the Detroit and Howell Plank Road Company (Laws 1848, p. 398),, au- 
 thorizing the company, when duly organized, to enter upon and take 
 
 319 
 
§ 2513 PLANK ROAD COMPANIES. 
 
 possession of so much of the Detroit and Gran4 River road, so called, 
 as lies between the city of Detroit and Howell, was held to dispense 
 with the necessity of a release or consent of the supervisors and com- 
 missioners of highways of the several townships, as required by section 
 27 of the General Plank Road Act of 1851. Detroit and HoweB, Plank 
 Boad Company v. Fisher, 4 Mich., 37. 
 
 230§. The Detroit and Erin Plank Road Co., being specially au- 
 thorized by their charter to take possession of so much of the Port Gra- 
 tiot road as lies between the city of Detroit and the township of Erin, 
 and construct and maintain a plank road thereon ; it was held that they 
 might do so without any grant or release from the supervisor and com- 
 missioners of highways of the township through which the road would 
 run, notwithstanding the General Plank Road Act of 1848 was also 
 made a part of the charter, and by that act, where a plank road com- 
 pany might wish to use a public highway for their road, they were 
 to obtain the right by procuring a grant for the purpose from the 
 officers mentioned. Attomey-Qeneral v. Detroit and Erin Plank Road 
 Co., 2 Mich., 138. 
 
 2309. Right to demand tolls. Under the provisions of sec- 
 tion 17 of the General Plank Road Act of 1848, a company may exact 
 toll whenever the road, or five consecutive miles thereof, are completed, 
 notwithstanding the survey of the road is not recorded as directed by 
 section 12 of said act. Detroit and MoweO, Plank Boad Co. -o. Fisher, 4 
 Mich., 38. 
 
 2310. The company may demand toU of any person in advance of 
 his actually travelling upon the road ; and on his refusal to state how 
 far he proposes to travel over the road, may require payment of toll to 
 the next gate. Ibid. 
 
 2311. Forcibly passing the gates. Where the traveller, 
 without paying the legal toll, passes the gate against the express will 
 or order of the gate keeper, but without actual force, the gate being 
 open, and the keeper offering no resistance, such an act constitutes a 
 forcible passing under section 17 of said act of 1848. Ibid. 
 
 2312. Changing location of gates. A plank road company 
 has general power to change the location of its gates, and to erect new 
 ones, unless specially restricted. City of Detroit v. Detroit and Erin 
 Plank Boad Co., 12 Mich., 333. 
 
 2513. Exclusion of gates from city limits. A plank 
 road company occupying for their purposes a road leading from the city 
 of Detroit, procured an amendment to their charter, by which they 
 were " empowered to extend their road on Gratiot street to Randolph 
 street in the city of Detroit ; provided that no toll gate shall be erected 
 or maintained within the limits of said city by said company." Sub- 
 320 
 
PLANK ROAD COMPANIES. § 2520 
 
 sequently the city limits were extended by statute so as to embrace a 
 portion of the original road upon which a gate had before been erected. 
 It was held that the amendatory act did not restrict the original powers 
 of the company to erect and maintain a gate on any portion of the road 
 then outside the city limits, but only prohibited any gate upon the ex- 
 tension of the road which was authorized by the amendatory act. 
 Jbid. 
 
 2514. Amendment of charter. The clause in the fiftieth sec- 
 tion of the General Plank Road Act of 1851, which provides that any 
 subsequent alteration or amendment of the act shall not operate 
 as an alteration or amendment of the corporate rights of companies 
 formed under it, unless specially named in the amendatory act, was in- 
 serted solely for the protection of the companies, and does not prevent 
 the legislature, by general amendment, from removing any restriction, 
 or releasing or diminishing any obligation or burden imposed upon 
 such companies by the general act. People ». Orand Blanc and HoUey 
 Plank Boad Oompwwy, 10 Mich., 400. 
 
 2515. Therefore companies formed under said act may, as to the 
 road subsequently constructed, claim the benefit of the act of 1859 
 (Imm 1859, p. 155), which permits them to adopt a grade of not ex- 
 ceeding one foot in ten, instead of one foot in twenty as under the gen- 
 eral act Ihid, 
 
 2516. An amendment to a charter of a plank road company, au- 
 thorizing it to mortgage its corporate property to raise money, for the 
 completion of its road, is an amendment which may be -accepted by a 
 majority of the stockholders. Joy t>. Jackson and Michigan Plank Boad 
 Go., 11 Mich., 155. 
 
 2517. mortgagee by. Under a special statute authorizing a plank 
 road company to " mortgage the road and other property of the com- 
 pany," the franchise of taking toll is to be understood as included with 
 the road and its fixtures. Ibid. 
 
 251§. But the company could not, under this power, mortgage any 
 franchise essentially corporate in its character, and which could not be 
 enjoyed by a natural person. Ibid. 
 
 2519. Under an authority to mortgage the whole road, the company 
 might give a valid mortgage on any specific portion of it, upon which 
 separate tolls can lawfully be collected. Ibid. 
 
 2520. Forfeiture of ft-anchi§e. Under the Plank Road Act 
 of 1848, on the completion of five consecutive miles of plank road, the 
 right to take tolls became vested ; and whatever might be the length of 
 the road required by the charter, the right to tolls on the part so 
 completed could not be forieited or aflfected by the failure to construct 
 
 21 521 
 
§ 8530 PLANK ROAD COMPANIES. 
 
 tke balance of the road. People v. Jackaan and Michigan Plank Road 
 Co., 9 Mich., 285. 
 
 3531. The following question discussed but not decided — ^the Court 
 being divided in opinion : — ^Where apart of the road actually completed 
 is constructed in a manner not allowed by the said act of 1848, is this 
 such a misuser as will forfeit the whole grant ? Ibid. 
 
 3533. Also, under said act of 1848, can the five consecutive miles of 
 road first constructed be forfeited by a failure to keep any other portion 
 of the road, when constructed, in repair ? Ibid. 
 
 3533. Also, what certainty of pleading is required in a proceeding to 
 have a forfeiture declared for misuser? Ibid. 
 
 3534. Also, what standard of perfection can be required as the 
 standard of repairs, and when repairs must be made ? Ibid. 
 
 8535. Liability of stockholders. Stockholders in a plank 
 road company organized under the General Plank Road Act of 1851, 
 are severally liable for demands against the company (not for labor done) 
 to the amount of the stock held by each when the debt accrued, and not 
 merely for the amounts which remain unpaid on their stock. Pettibone 
 v. McOroM, 6 Mich., 441. 
 
 3536. It is not indispensable that a judgment creditor who, after re- 
 turn of execution against the company unsatisfied, files his bUl to com- 
 pel payment by the stockholders, should make them all defendants. 
 lUi. 
 
 ft9fi7. Nor is it necessary that all be made parties to the bUl, when 
 the demand ft>r which the judgment was rendered was for labor done. 
 IMd. 
 
 3535. Sale of franchise on execution. The authority to 
 sell the franchise of a plank road corporation on execution, is derived 
 entirely from the statute ; and the sale can be made in no other mode 
 than that pointed out by the statute. That mode is a sale of the fran- 
 chise to such person as will satisfy the execution, with the legal fees, 
 9nd take the franchise for the shortest period of time. James v. PontiM 
 and Orcyadand Plank Road Co., 8 Mich., 91. 
 
 3539. A sale of the franchise for a certain period, in part payment 
 of the execution, is unauthorized and void. Ibid. 
 
 3530. The acquiescence of the stockholders in the purchaser taking 
 possession under such a sale, their payment to him of tolls for passing 
 over the road, and the expenditure by him of moneys in repairing the 
 road, with their knowledge, will not confirm and render valid such a 
 sale. Ibid. 
 
 332 
 
PLEADINGS. § 2537 
 
 PLEADINGS. 
 
 1. Genebal Phinciples. 
 
 3531. The object of pleading in any Court is to apprise the op- 
 posite party of tlie grounds of the claim or defense (as the case may be), 
 80 that there shall be no misapprehension as to what matters are to be 
 litigated on the trial. Hurtford v. Holmes, 3 Mich., 460. 
 
 3532. Surplusage. It is not necessary for a party to allege any 
 more, in pleading, than will constitute, prima facie, a sufBcient cause of 
 action or defense ; all beyond this is surplusage. Attorney -OeneraJ, t. 
 Miehigan State Bank, 2 Doug., 359. 
 
 3. The Declabation. 
 
 3533. Statute of frauds. A declaration on a guaranty within 
 the purview of the statute of frauds, need not aver that the guaranty 
 was in writing. Dayton v. Williams, 2 Doug., 31. 
 
 3534. Nor need it aver that the undertaliing guaranteed, though 
 that also was within the purview of the statute, was made with the for- 
 malities which the statute requires. Ibid. 
 
 3535. Covenant on replevin bond. Tlie declaration set 
 forth a covenant alleged to be contained in a replevin bond, of the 
 same tenor with the condition of such a bond as prescribed by the sta- 
 tute. Default for want of plea, and final judgment. On error to reverse 
 the judgment, it was held, 
 
 (a.) That it was competent for the parties to add to the condition of a 
 replevin bond a covenant of the same tenor ; and, on breach, covenant 
 broken might be maintained upon it. 
 
 (6.) That it must be presumed in this case that the bond contained 
 such a covenant, and not that the action was founded upon the condition 
 of the bond. 
 
 (c.) That it was not necessary that the declaration should set forth 
 the penal part of the bond ; it being suflBcient for the plaintiff to set 
 forth so much only of an instrument as constitutes the foundation of his 
 action. Prentiss v. Spalding, 2 Doug., 84. 
 
 3536. Suit for g^oods sold, where securities have been 
 taken. Where plaintiff sold goods and received securities for the 
 purchase price, one of which he collected and the other offered to re- 
 turn, and he afterwards brought suit to recover the balance, it was 
 held not necessary that he should declare specially. 6a/rdner v. Gor- 
 Jiam, 1 Doug., 507. 
 
 3537. Suit on note where there is a collateral agree- 
 ment. In declaring on a promissory note absolute on its face and in 
 the ordinary form, it is not necessary to notice a cotemporaneous agree- 
 
 823 
 
§ 2544 PLEADINGS. 
 
 meat in writing varying tlie terms of tlie note, contained in a separate 
 paper. Such agreement is matter of defense only. BmaUey v. Bristol, 1 
 Mich., 153. 
 
 3538. Declaration on a lease. In declaring on an agree* 
 ment as a demise, there are but two proper modes of stating it : first, by 
 its legal effect ; or, second, by setting it forth in such a manner that its 
 legal character can be seen. TiUmanv.FnUer, IS Mich., 113. 
 
 2539. Suit to recover rents. The declaration set forth an agreement 
 on the part of the plaintiff to lease the premises to the defendant, in 
 consideration of which the defendant did actually rent and hire the 
 premises. It was held that such agreement to lease could not be a con- 
 sideration for an actual renting, unless it was so stated as to amount to 
 a present demise. Ibid. 
 
 3540. Onarauty: goods sold. The plaintiff sold and de- 
 livered to one S. certain goods, taking from him a mortgage thereon for 
 the purchase money. The defendant agreed with plaintiff in writing, 
 that the goods so sold should at all times remain in the possession of 
 the purchaser, ready to be delivered upon default of any payment — ex- 
 cept what had been sold from day to day at regular sales — and that if, 
 upon default in payment, there should not be sufficient goods to liqui- 
 date the sum remaining due on the mortgage, the balance should be 
 made up by defendant. The agreement provided that in the event the 
 plaintiff should retake said goods, the same " should be invoiced and ap- 
 plied;" and it was held, that an averment in the declaration, that plain- 
 tiff" did proceed to take possession of the remaining goods, and invoice 
 the same, to wit, at," &c., was a sufficient averment of an invoice in 
 compliance with the contract, MUls v. Speneer, 3 Mich., 137, 
 
 2541. A declaration upon such agreement, setting forth the amount 
 of the purchaser's original indebtedness for said goods, held not defec- 
 tive by reason of its omitting to state the amount due the plaintiff after 
 the goods so inventoried had been applied, and the non-payment of that 
 amount ; no demurrer having been interposed, and the objection being 
 taken on error. Ibid. 
 
 2542. An averment that the invoice of goods amounted to a certain 
 gum, leaving a deficiency of a certain sum, and which last sum was 
 due to the plaintiff, was sufficient, under the statute of 1849 regulating 
 pleadings in the County Courts. I bid. 
 
 2543. The defendant under this agreement, was held liable for the 
 whole deficiency, without regard to the manner in which the goods had 
 been disposed of ; and not merely for such portions as plaintiff could 
 show had been diverted from the ordinary sales by the purchaser. 
 Ibid. 
 
 2544. Declaring on statute. In declaring on a statute, where 
 
PLEADINGS. § 3551 
 
 there is an exception in the enacting clause, the pleader must nega- 
 tive the exception ; but where there is no exception in the enacting 
 clause, hut an exemption in a proviso to the enacting clause, or in 
 a subsequent section of the act, it is matter of defense, and must 
 be shown by defendant. Where, therefore, suit is brought for the price 
 of liquors sold in Michigan, the plaintiffs cannot recover unless they 
 bring themselves within the exemptions of the statute. [Manning, J.] 
 Myers 11. Carr, 13 Mich., 63. See Attorney- Oeneral v. OaMand County 
 Bank, Wal. Ch., 90. 
 
 2545. Allegations conflicting with statutes. A Court 
 is bound to take judicial notice of a public statute, and to disregard all 
 allegations in conflict with it. People v. Biver Raisin and Lake Erie 
 Bailroad Co., 13 Mich., 389. 
 
 2546. Where a township treasurer gave bond to " The People of 
 of the State of Michigan," instead of to the township as required by 
 law, it was held that an action could not be maintained, upon it in the 
 name of the township by averring that the bond was given to the town- 
 ship by the name and description of the People of the State of Michi- 
 gan. The Court must take judicial notice of the fact that the State and 
 the township are distinct organizations. Township of La Orange v. Chap- 
 man,ll Mich., 499. 
 
 2547. Declaration on contract with agent. Where a 
 contract purported to be executed by agents of the respective parties, 
 and it was set forth at length in the declaration, and alleged to be the 
 contract of the parties, the declaration was held sufficient without show- 
 ing how the agency was constituted. Regents of the University v. De- 
 troit Young Men's Society,12 Mich., 138. 
 
 2548. Action for interest : demand. Where action was 
 brought for interest due at a fixed time without any conditions, and it 
 was alleged to be unpaid, it was held that no special demand was neces- 
 sary, and that the breach of the contract sufficiently appeared. Ibid. 
 
 2549. Surplusage. When, a contract is set forth at length in the 
 declaration, any allegation in respect to its description or effect, in a 
 matter which must appear on its face as set forth, is superfluous,, and 
 should be treated as surplusage. Ibid. 
 
 2550. As where the contract of corporations was alleged to be 
 " sealed with the seals of the respective parties ;" but upon its face it 
 appeared to be executed by agents who had only affixed their own seals. 
 Itnd. 
 
 2551. Profert. In declaring upon a contract thus executed it' is 
 not necessary to make profert. But if it could be considered a sealed 
 instrument, no further profert or oyer is necessary when it is, thus set 
 forth in fuU. Ibid. 
 
 335 
 
§ 2560 PLEADINGS. 
 
 2593. Statement of promise in assumpsit. A declaration 
 in assumpsit on the common counts, which, after stating the several 
 causes of action, omits to allege an express promise, though bad on 
 special demurrer, is cured by judgment. Eoa/rd v. lAtHe, 7 Mich., 
 468. 
 
 S553. Particularity required. A pleading should contain 
 allegations of facts, and not of evidence. Under a count for a false and 
 fraudulent representation of the value of an article sold by defendant, 
 plaintiff may prove false statements made by defendant at the time, as to 
 the value of particular parts of the article, notwithstanding such state- 
 ments are not detailed in the declaration. Pieard d. McGormiek, 11 Mich., 
 68. 
 
 2554. Separate counts. Each count of a declaration is to be 
 regarded as a separate claim, and the declaration is not defective because 
 one count claims damages below the jurisdiction of the Court. Ibid. 
 
 2555. Variance. Where a writ is alleged to have issued, or a 
 written instrument to have been made, on a certain day, and the writ or 
 instrument, when offered in evidence, bears date a different day, this 
 is no variance. Lothrop v. Southworth, 5 Mich., 436. 
 
 2556. A variance between the declaration and the proof should be 
 disregarded at the trial, when the inBtrument is otherwise sufficiently 
 described in the declaration, so that defendant cannot be surprised or 
 misled by the evidence. Ibid. 
 
 2557. Where the consideration for a promise is stated as consisting 
 of two parts, each of which Is material and pertinent, proof of but one 
 is a variance fatal to plaintiff's recovery, notwithstanding either would 
 have been sufficient by itself to sustain the promise if alleged as the 
 sole consideration. TiUman ®. Fuller, 13 Mich., 113. 
 
 2558. In an action on a warranty of a span of horses, the declara- 
 tion stated the consfderation to be a yoke of oxen and a note for twenty 
 dollars, and on the trial it appeared the note was for ten dollars only. 
 The variance was held to be fatal. Harrington v. Werden, 1 Mich., 487. 
 
 2559. An allegation that the president and directors of a certain cor- 
 poration (naming all of them) made certain by-laws, is supported by 
 evidence that they were made by the president and a majority only of 
 the directors. CahiU «. KaUvmazoo Mutual InsuraTiee Co., 2 Doug., 124. 
 
 2560. Declaration against one who had subscribed with others for 
 the erection of a college building a^ Hillsdale, for the use of the Michi- 
 gan Central College incorporated at Spring Arbor. The declaration 
 averred that this college decided not to use the building when com- 
 pleted, and the subscribers afterwards renewed their subscriptions, 
 and indebtedness was incurred and the building completed in reliance 
 thereon. It was shown in evidence that the renewal of the subscrip- 
 
 326 
 
PLEADINGS. § 2568 
 
 tions, and the erection of the buildings, were for the benefit of a new 
 college to be established at Hillsdale. This fkct not being averred in 
 the declaration, which only showed a subscription for a college not 
 located at Hillsdale, it was held that no recovery could be had thereon. 
 Underwood v. Waldron, 12 Mich., 73. 
 
 2561. Variance tn name : allegation of identity. A 
 declaration on a judgment which avers that it was rendered in favor 
 of A., the present plaintiff, by the name of B^ but which does not 
 allege that A. was ever known by the name of B., is bad on demur- 
 rer. Gilbert «. Sanford, 13 Mich., 40. See supra, 2546. 
 
 2563. Allegation of consideration. In declaring upon a 
 simple contract, unless it is one which imports a consideration, the 
 whole consideration should be set forth, so as to show distinctly in what 
 it consists, that the Court may judge of its sufficiency to sustain the 
 promise alleged. Kean v. Mitchell, 18 Mich., 207. 
 
 2563. In a declaration on a contract for the purchase of goods, an 
 allegation that the defendant agreed to deliver the goods " for a good 
 and valuable consideration paid by the plaintiff to the defendant," is 
 not a sufficient statement of the consideration to support the declaration 
 on demurrer. Ibid. 
 
 2564. Defect cured by verdict. But such a defect cannot 
 be taken advantage of on the trial of an issue of fact, by objection to the 
 admission of evidence to establish the plaintiff's case ; and after verdict 
 for the plaintiff the allegation will be sufficient to sustain it Ibid. 
 
 2565. A defective allegation of consideration will be cured by ver- 
 dict when, from the issue as actually made, it can &irly be presumed 
 that the evidence necessary to establish a case was given under it. Ibid. 
 
 3. Pleas nf Abatement. 
 
 2566. Certainty. A plea in abatement must have the highest 
 . degree of certainty and precision. Every allegation necessary to make 
 
 out the case covered by it must be distinctly, and not inferentially, set 
 forth. Bdden c. Laing, 8 Mich., 500, See FinMey c. People, 1 Mich., 334. 
 
 2567. In replevin a plea in abatement was interposed, setting up 
 the pendency of a prior suit in replevin, by virtue of the writ in which 
 the property in controversy was taken and held by one of the defend- 
 ants as sheriff The plea did not allege that any affidavit was attached 
 to the writ in the first suit, nor that the writ commanded the sheriff to 
 take the property in controversy. Held that the plea was insufficient 
 on both grounds. Bdden v. Laing, 8 Mich., 500. 
 
 256S. Former suit pending. Plaintiff commenced two suits 
 against the defendant on the same day, for the same cause of action . 
 one by declaration, and the other by attachment. The Court presumed, 
 
 327 
 
§ 2E?77 PLEAOINQ5. 
 
 nothing appearing on tlie record to the contrary, that the suit by de- 
 claration was first conunenced, and held that a plea of that suit in abate- 
 ment of the attachment suit was bad, because the plea did not state that 
 it was still pending. WaZes v. Jones, 1 Mich., 254; Pew o. Toare, 12 
 Mich., 16. 
 
 2569. Where a plea in abatement arerred that another suit was 
 commenced at the same time^ upon and for the not performing the same 
 identical promises and undertakings, without adding, in the said declara- 
 tion in ihis present suit mentioned, or other equiralent words, it was held 
 bad on that account. Ibid. 
 
 2570. JVon-Jolnder of plaintiff's. Where the husband sues 
 alone for property of the wife, held in her own right or that of another, 
 he wiU be non-suited on the trial. It is not necessary to plead the non- 
 joinder in abatement. Brown v. Fifidd, 4 Mich., 322. 
 
 2371. Non-joinder of defendants. In actions ex contractu 
 the non-joinder of a co-contractor, unless it appear on the face of the 
 declaration, can only be taken advantage of by plea in abatement. 
 This rule applies to actions on recognizances. People n. Dennis, A 
 Mich., 609. 
 
 4. Fleas m Bab. 
 
 2572. Tbe general issue, under the BeTised Statutes of 1846, 
 (Comp. L., §§ 4176, 4177) in all civil actions, traverses every material 
 averment in the plaintiflf's declaration which must be proved, whatever 
 the nature or form of the action may be. Kinne v. Owen, 1 Mich., 249. 
 See Taff v. Hosmer, 14 Mich. 
 
 ^573, Under the general issue in covenant, the defendant may show 
 that the deed is not his, by proving a lack of power in the agent who 
 executed it on his behalf Agent of State Prison v. Lathrop, 1 Mich., 438. 
 
 2574. In assumpsit, illegality of consideration between the original 
 parties to a promissory note, may be shown under the general issue. 
 If any notice of defense under the Prohibitory Liquor Law were neces- 
 sary, a notice that the note was given for the purchase price of intoxi- 
 cating liquors, contrary to the statute, is sufficient. [Maksing, J.] 
 Myers V. Carrr, 12 Mich., 63. 
 
 2575. In an action of tort, everything which may properly be con- 
 sidered by the jury in mitigation of damages, may be given in evidence 
 imder the general issue. BAavan 'o. Bates, 1 Mich., 97. 
 
 2576. In trespsss de bonis, the defense that the goods were taken 
 under attachment against a third person alleged to be the owner, is not 
 admissible under the general issue, without notice. Bosenbury v. An- 
 geU, 6 Mich., 508. 
 
 2577. In trover against a sheriff, by parties claiming property levied 
 
 328 
 
PLEADINGS. § 2386 
 
 on by him, a judgment in favor of the party for whom the sheriff levied 
 must be specially alleged and proved, to authorize the defendant to put 
 in evidence showing that a chattel mortgage given by the debtor, under 
 which the plaintiflF claims, is fraudulent. Comstoek v. EoUon, 2 Mich., 
 355. 
 
 857S. Plea puis darrein continnance. After a joint plea 
 to the merits by tyfo defendants, it was held that one of them might 
 plead severally, puis dwrrein continuance, his discharge in bankruptcy 
 subsequently obtained. But such plea would be an abandonment by 
 him of the former joint plea, which would thereafter stand as the several 
 plea of the other defendant. Wheelock v. Bice, 1 Doug., 367. 
 
 3579. statute of limitations. A plea of the statute of limita- 
 tions, that the plaintiff's cause of action did not accrue within six years 
 next before the filing of the plaintiff's amended declaration, is bad. WU- 
 cox V. Kassiek, 3 Mich., 165. 
 
 33S0. Another suit pending for the same cause of action in 
 another State, is not agood plea in bar. lUd. 
 
 2581. Tiro pleas; one bad. Where to a declaration in as- 
 sumpsit the defendant pleaded non-assumpsit, and not guilty, and a jury 
 trial had been had ; it was held that the plea of not guilty might be 
 treated as a nullity, and stricken from the record. Ovmjyrs of Ship Mil- 
 waukee V. Hale, 1 Doug., 306. 
 
 25S2. Special pleas g;ood after Judgement. The statute 
 abolishing special pleadings, does not make special pleading void, where 
 the parties have voluntarily adopted it, joined issue,* and proceeded to 
 trial and judgment. Wales v. I/yon, 2 Mich., 276. 
 
 35§3. Notices of defense. A notice of special matter to be 
 given in evidence, must contain all the substantial requisites necessary 
 to constitute a special plea which would be good on_ general demurrer. 
 Thompson v. Bowers, 1 Doug., 321. 
 
 25§'l. A notice that apprises the plaintiff with reasonable certainty 
 of the matter of defense, so that he may not be taken by surprise on the 
 trial, is suflScient under the statute. Rosenbwry v. AngeS, 6 Mich., 508 ; 
 McHardy v. Wadsworth, 8 Mich., 849. And see Porter v. KvmbaU, 1 
 Mich., 239. 
 
 3555. A notice that " three several writs of attachment were issued 
 out of the Circuit Court for the county of L., and under the seal thereof 
 in due form of law," giving the names of the parties, and dates and 
 command of the writs, and the taking of the property by virtue thereof, 
 is sufficient, without alleging the making of the affidavits which 
 authorized the attachments; and the affidavits as well as the writs 
 may be given in evidence. Roseribury v. Angell, 6 Mich., 508. 
 
 3556. In an action on a promissory note made by two defendants. 
 
§ 2591 PLEADINGS. 
 
 notice of defense was interposed, that the note was given for the pur- 
 chase price of cows sold with warranty hy plaintiff to defendants, the 
 damages for a breach of which warranty defendants claimed to recoup 
 from the amount of this note. The proof showed the note to have been 
 ^ven for the consideration stated, but the sale was made by the plain- 
 tiff to one of the defendants. MM, that the notice was sufficient, espe- 
 cially as the plaintiff, in his bill of particulars, evidently designed to 
 cover the consideration for the note, had claimed to recover for cows 
 sold by him to the defendants. McHardy v. Wadsworth, 8 Mich., 349. 
 
 25§7. To a declaration in slander, alleging that the defendant 
 charged the plaintiff with having sworn falsely, the defendant pleaded 
 the general issue, and gave notice that he would prove on the trial, 
 " that the plaintiff was guilty of the facts charged upon and imputed to 
 him by the defendant, in the several conversations in the declaration 
 mentioned, and that, if the words were uttered and published as charged 
 in the declaration, the defendant had good reason for uttering and pub- 
 lishing, and did it from good motives and for justifiable ends." Bdd, 
 that this notice was fatally defective ; especially in omitting any aver- 
 ment that the plaintiff wUfvUy and ddii>eratdy swore falsely ; and that 
 the defendant could not, upon the trial, introduce any evidence under 
 it. Thompson o. Bowert, 1 Doug., 321. 
 
 35§S. What notice was insuflScient under the County Court system 
 of 1846. Porter «. Kimbaa, 1 Mich., 239. 
 
 r 
 
 5. Demukkek. 
 
 25S9. Insufficient description. In replevin a defective de- 
 scription of the property, must be taken advantage of by special demur- 
 rer, as it would be held sufficient after verdict, avowry, or plea of 
 property in defendant. Stevens v. Osman, 1 Mich., 92. 
 
 2590. Defective allegation of notice. That the aver- 
 ment in a declaration on a guaranty, of notice to the defendant of non- 
 performance by his principal, omits to state when or vihere the notice 
 was given, is no ground for arresting judgment, but only of special de- 
 murrer. Dayton v. WiUiams, 2 Doug., 31. 
 
 6. Replication. 
 
 3591. Replication to a notice of defense was held not necessary, 
 under the Circuit Court rules of 1853, where the matters set out in the 
 notice were admissible in evidence under the general issue. Craig v. 
 Grata, 6 Mich., 447. 
 330 
 
POSSESSION OF LANDS. § 3599 
 
 POLICE COURT OF DETROIT. 
 
 2592. Appeal ft-om. Whether an appeal lies from a cosTiction 
 in the Police Court of Detroit, to the Circuit Court for the county of 
 Wayne, qv^re — the Court being equally divided on the question. People 
 «. Police Justice, 7 Mich., 456. 
 
 2593. Jurisdiction. The Police Court of Detroit has nq juris- 
 diction of a criminal case where the maximum punishment allowed by 
 law exceeds a fine of one hundred dollars, or three months imprison- 
 ment, or both such fine and imprisonment. Matter of Berry, 7 Mich., 467. 
 
 POSSESSION OF LANDS. 
 
 3594. ^f^ben It Is notice of title or claim. Where a. 
 party purchases land in the possession of a third person, with a knowl- 
 edge of that fact, he takes it subject to all equities existing between his 
 vendor and the person in possession. Mood v. Cha/pin, Wal. Ch., 79 ; 
 Oodfroy v. Ditiirow, Wal. Ch., 260 ; Biibrow n. Jones, Har. Ch., 48 ; Mc- 
 Kee v. Wilcox, 11 Mich., 358 ; Norris v. Shovxrman, 2 Doug., 16. 
 
 2595. It is the duty of the purchaser before buying to inquire of the 
 person in possession what claim he makes to the premises. McKee n. 
 WUcox, 11 Mich., 358. 
 
 2596. But possession alone is not such aawal notice, as, under § 25, 
 p. 260 of Revised Statutes of 1838, would protect the title of one claim- 
 ing and occupying under an unrecorded deed, against one who subse- 
 quently took a mortgage from the grantor without being aware of such 
 possession. Hubbard v. Smith, 2 Mich., 307. 
 
 2597. Not affected by livj unction. Where an injunction 
 had been granted, enjoining defendant from interfering with or incum- 
 bering certain lands and premises, and defendant, at and previous to 
 the granting of the injunction, being in possession of, and claiming title 
 to, a mill on the land, forcibly put out two agents of complainant who 
 came into the mill after the injunction had been served, and refused to 
 leave when requested, it was held to be no violation of the injunction, 
 which was not intended to dispossess the defendant. Hemingway v. 
 Preston, Wal. Ch., 528. And see supra, 1146, 1147. 
 
 2598. Summary proceedings to recover: who to 
 bring. Under the Revised Statutes of 1838, a suit against a lessee, 
 to recover possession of the demised premises, on account of the non- 
 payment of rent, &c., was held properly brought by the lessor in his 
 awn name, although he had previously assigned the rents to accrue 
 under the lease, to a third person. Ohamberlin v. Brown, 2 Doug., 120. 
 
 2599. The summary remedy given by Laws of 1840, p. 85, § 5, where 
 
 331 
 
§ 2609 POSSESSION OF LAJTDS. 
 
 premises had been sold on mortgage foreclosure or on execution, ap- 
 plied only where there was priuity between the parties ; and not where 
 the grantee of a purchaser at an execution sale sought to recover pos- 
 session from a person holding adversely to the judgment debtor. Royce 
 «. Sradburn, 2 Doug., 377. 
 
 2600.— previous notice. The Statutes of 1838 requiring the 
 landlord to demand possession of the premises, in writing, from his 
 tenant, at least twenty days before summary proceedings to recover 
 possession, it was held, that a demand requiring the tenant to quit the 
 premises in ten days, but which was served twenty days before pro- 
 ceedings were instituted, was sufficient. Chamberlin v. JBrovm, 3 Doug., 
 120. See further as to notice, Suyaer v. Chase, 13 Mich., 98 ; Woodrow 
 n. Michael, 13 Mich., 187. 
 
 2601. — tlie complaint should allege all the facts necessary to 
 give the Court jurisdiction. Boyce «. BracUnim, 2 Doug., 377 ; Caswell 
 0. Wa/rd, 3 Doug., 374 ; Davis v. IngersoU, 8 Doug., 373 ; Bush v. Dun- 
 ham, 4 Mich., 339 ; Bryan v. Smith, 10 Mich., 239. 
 
 2603. In a proceeding under the Statutes of 1838, for an unlawful 
 and forcible entry, &c., a complaint which showed merely an unlawful 
 entry and detention, but did not show that they were accompanied with 
 violence, or a breach of the peace, was held insufficient. Davis v. IngersoU, 
 2 Doug., 373. 
 
 3603. A complaint under the Statutes of 1846, which did not show 
 that at the time tlie complaint was made the complainant was entitled to 
 the premises, was held insufficient. BusJi v. DunJiam, 4 Mich., 339 ; 
 Bryan v. Smith, 10 Mich., 229. 
 
 2604. A complaint was held insufficient to confer jurisdiction which 
 only showed that complainant became entitled to the possession upwards 
 of fourteen months before the proceeding- was instituted. Bryan v. 
 Smith, 10 Mich., 339. 
 
 2605. Form of a complaint suggested. Bush v. Dunham, 4 Mich., 
 339. And see Bryan v. Smith, 10 Mich., 229. 
 
 2606. The complaint stands in lieu of a declaration. CagweU x. 
 Ward, 2 Doug., 374 
 
 2607.— process under the Statutes of 1838 might have been served 
 by a constable. People v. Oay, 2 Doug., 367. 
 
 2608. — continuances might have been granted under the Stat- 
 utes of 1838, though the power to continue was not expressly conferred; 
 it being incident to the jurisdiction to hear and determine. Caswdl v. 
 Ward, 2 Doug., 374. 
 
 2609.— jury. Where (under the Statutes of 1838) a warrant and 
 venire were issued and served, and on the return day the parties and 
 most of the jurors summoned appeared, and the cause was then ad- 
 333 
 
POSSESSION OP LANDS. § 2617 
 
 journed to a future day, and the justices thereupon issued a second 
 venire by which another jury was summoned, before whom the cause 
 was tried ; Seld, that the justices had no power to direct the second 
 jury to be summoned, but that tliey sliould have required the jurors 
 who appeared in obedience to the first venire to appear on the ad- 
 journed day, and if their number was insufficient to complete the panel, 
 the deficiency should have been supplied by summoning additional 
 jurors by virtue of the same venire. Latimer v. Woodward, 3 Doug., 368. 
 
 2610. Under the Statutes of 1838, as amended in 1840, the jury were 
 the judges of both the law and the facts: Misdirection of the Court to 
 the jury could not, therefore, be assigned for error. But it might be 
 assigned for error that the verdict was against law. Chamberlin v. 
 Brown, 2 Doug., 120. 
 
 2611. — pleading the general issue to the complaint was held a 
 waiver of irregularities in the summons and venire. FaXkner n. Beers, 
 3 Doug., 117. 
 
 2612. — the evidence must be confined to proof of the facts 
 alleged in the complaint. CasweU, v. Ward, 3 Doug., 874. 
 
 2613. Where the proceeding is by the purchaser at a statutory fore- 
 Closure of a mortgage, the complainant must prove the regularity of all 
 the proceedings on the foreclosure. IMd. 
 
 2614. Evidence which shows merely an unlawful entry and^eten- 
 tion, without showing that they were accompanied with violence, or a 
 breach of the peace, will not support a complaint for forcible entry and 
 detainer. Dams ®. IngersoU, 3 Doug., 372 ; Harrington v. Scott, 1 Mich., 17. 
 And evidence which shows a forcible detention only, but not force or 
 violence in making the entry, will not support the complaint. Latimer 
 t. Woodward, 3 Doug., 368. 
 
 2615. Where A. obtained possession of premises occupied by B., by 
 knocking a door open with a hammer in B.'s absence, and B. soon 
 afterwards, in A.'s absence, re-entered by similar violence, it was held, 
 that A.'s temporary occupation so acquired was not such quiet and peace- 
 able possession as would entitle him to maintain forcible entry and 
 detainer against B. Harrington v. Scott, 1 Mich., 17. 
 
 2616. Proof that the defendants (there being only two of them) 
 repaired alone to the premises, and that one of them pounded upon the 
 door and it was opened, whereupon they both entered, is not sufficient 
 to sustain a complaint for forcible entry and detainer. Ibid. 
 
 2617.— appeal. Where judgment was rendered in favor of the 
 complainant, in a case where the complaint was insufficient to confer 
 jurisdiction, and an appeal was taken to the Circuit Court, it was held 
 that that Court had j«risdiction, on reversing the Judgment, to render 
 
 383 
 
§ 2624 POWERS. 
 
 judgment against the complainant for costs. Bryan v. Bmith, 10 Mich., 
 229. 
 
 281§. A iiTit of error la the proper process to bring the judg- 
 ment of the Circuit Court before the Supreme Court for review. Parker 
 p. Copland, 4 Mich., 528. 
 
 POWERS. 
 
 3619. To two or more. Where several persons are empow- 
 ered by law to execute a public trust or power, and in the execution 
 thereof, all are present to deliberate, the act of a majority will be valid. 
 Scott V. Detroit Toung Men's Society's Lessee, 1 Doug., 119. 
 
 2630. They will all be presumed to have been present, and to have 
 deliberated upon the act, unless the contrary expressly appears. Ibid. 
 
 3621. Land Board in Detroit. The powers conferred upon 
 the Governor and Judges of Michigan Territory to grant donation lots 
 in Detroit, are not to be construed with the..technical strictness applica- 
 ble to those of an ordinary attorney or donee of a power; but they were 
 vested with a large discretion, and their acts are entitled to liberal in- 
 tendments in their support. These powers cannot be held exhausted 
 until they had fulfilled the purposes for which they were conferred, by 
 caiisiril; the title to a lot to be vested in each person entitled. Beady v. 
 KearsUy, 14 Mich. 
 
 2623. Where the Board conveyed a lot in Detroit to A., and after- 
 wards by mistake gave a deed of the same lot to B., and A. took possession 
 of another lot on the supposition that it was the one granted to him, 
 and the Board afterwards, assuming that A. had lost the title to the 
 first mentioned lot, gave him a deed of the one of which he had taken 
 possession ; it was held that the Board had not exbatisted their power 
 to grant a donation lot to A. by giving the first deed, and that the sec- 
 ond deed to him was valid. Ibid. 
 
 2623. ITuauthorlzed conditions. Where the donee of a 
 power to be executed by conveyance to another, attaches unauthorized 
 conditions, such conditions are void and the deed good. But only the 
 grantee and those in privity with him are entitled to question the act 
 Ibid. 
 
 2624. And therefore a third person is not at liberty to question the 
 validity of a clause inserted in a deed given by the Land Board, by 
 which the grantee was to hold " in trust for the rightful owners," &c. 
 Ibid. 
 
 834 
 
PRACTICE IN THE CIRCinT COURTS. § 3633 
 
 PRACTICE IN THE CIIiCXnT COURTS. 
 
 3635. Service of process can only be made in the county in 
 which the Court is held. Ttirria v. Walker, 4 Mich., 177. 
 
 [Exceptions to the rule- are made by statute in the case of executions ; 
 Comp. L., §§ 4442, 4448 ; attachments ; Laws of 1861, p. .;7i» ; and pro- 
 cess generally against joint debtors ; Laws of 1861, p. 485.] 
 
 3626. Notice of rule to plead. The omission to serve no- 
 tice of rule to plead with the declaration, is an irregularity for which 
 the proceedings will be set aside at any time. The defendant waives no 
 rights by failing to notice the defect within any specific time, for he has 
 no notice of the purpose for which the declaration is served. Ibid, 
 
 3637. Return of service of declaration. Where the suit 
 1^ commenced by declaration, the certificate of service may be indorsed 
 on the original declaration on file, or on a copy. Lamed v. WUeox, 4 
 Mich., 333. 
 
 3638. Where a notice was attached to a declaration, that a note, a 
 ■ copy of which was given, would be read in evidence under the declara- 
 tion, and the sheriflT returned that he had served on the defendant a 
 copy of the declaration and notice, it was held that the return necessa- 
 iriJy implied serviceof acopy of the note, since that constituted an essen- 
 tial part of the notice. Bliss v. Paine, 11 JWich., 93. 
 
 3639. Where the under sheriff serves the writ, he may make the re- 
 turn in his own name. CaUendar v. Olcott, 1 Mich., 344. 
 
 3630. Proclilen ami. The prochien ami for an infant plaintiff 
 must be appointed by the Court, If the suit is commenced by declara- 
 tion without such appointment, it will be dismissed on motion. Haines 
 T. Oatman, 2 Doug., 430. The proper practice on appointing procAien 
 ami indicated in this case. See statutory provisions, Comp. L., Ch. 
 143 ; Laws of 1858, p. 9. 
 
 3631. Rule to plead under Statutes of I83S. Rule 11 of 
 1843, requiring defendants, in suits commenced by declaration, to plead 
 tiiereto within thirty days after service of a copy of the declaration, was 
 a rule the Court had power to make. Norvdl v. McHenry, 1 Mich., 237. 
 
 2633. Amendment of declaration. Where a plaintiff suf- 
 fers the time to elapse within which, by the rules, he may amend of 
 course, the right becomes extinguished. Held, therefore, that after a 
 trial of the issue, verdict for the plaintiff, verdict set aside, a new trial 
 granted, leave given to the parties, by special order of the Court, " to 
 file new pleadings under the general rules," an amended declara- 
 tion filed under this order, and demurrer thereto, the plaintiff had no 
 right to file a second amended declaration without special leave granted 
 by the Court. PeojXe v. Judges of Washienaw Circuit, 1 Doug., 434. 
 
 335 
 
§ 2641 PRACTICE IN THE CIRCUIT COURTS. 
 
 3633. A declaration may be amended by adding new counts, so as 
 to lay the contract or wrong in a different manner ; but a new cause of 
 action cannot be introduced by amendment. Ibid. Nor the cause of 
 action changed ; as from trover to assumpsit. People v. Judge of Wayne 
 Circuit Court, 13 Mich., 206. 
 
 2634. Bill of particulars. The office of a bill of particulars 
 is to inform the opposite party of the causes of action to be relied on 
 upon the trial, which are not specially set out in the declaration. Dams 
 V. Freeman, 10 Mich., 188. 
 
 3635. By a written gontract defendant promised plaintiff to' t)ay 
 a third person |1,700, due to him from plaintiff, and also $1,300 'for 
 plaintiff's services thereafter to be performed. In an action on this con- 
 tract, plaintiff, by his bill of particulars, confined his claim to the con- 
 tract. This did not preclude hirh from showing, by parol evidence, the 
 performance of the subsequent services. Tefft v. McNoah, 9 Mich., 
 201. 
 
 3636. Affidavit of merits. Under the act of 1844 (S. L., p. 11, 
 § 2), which authorized the plaintiff, in actions on contract, to take an 
 inquest or assessment unless an affidavit of merits was filed, it was held 
 that the affiant, whether the affidavit was made by the defendant or 
 his agent or attorney, should swear to a defense upon the merits from 
 his own knowledge of the facts constituting such defense, and not from 
 information and belief. Brown v. Cowee, 2 Doug., 432. 
 
 3637. §upplying lost flies. Where a recognizance of special 
 bail was lost from the files of the Court, and plaintiff moved to substi- 
 tute a copy to stand in lieu of the original, it was held that the Court 
 had no jurisdiction to order the substitution to be made without notice 
 to the sureties. Montgomery «. Henry, 10 Mich., 19. 
 
 2638. A^ottrnments of the Court ^from day to day during the 
 same term, are not continuances which require to be stated in the re- 
 cord. Owners of Ship Milwaukee v. Hale, 1 Doug.,' 306. 
 
 3639. Sale of a demand in suit does not abate the suit, 
 but it may be prosecuted to judgment for the benefit of the purchaser. 
 Newberry v. Trowbridge, 13 Mich., 363. ' 
 
 3640. Discontinuance as to part of defendants. Where 
 action was brought on a replevin bond against all the obligors, two of 
 whom were defaulted, and the plaintiff, instead of proceeding to trial as 
 to the others, discontinued as to them, and took judgment against those 
 who were defaulted, this action was held erroneous. Winslow v. Her- 
 rick, 9 Mich., 380. See supra, 771. 
 
 3641. Under § 10 of the schedule to the constitution, vesting in 
 t'.ie Circuit Courts jurisdiction of suits commenced in the County Courts, 
 such Circuit Courts had power, insults brought against several defen- 
 
 336 
 
PRACTICE IN THE CIRCUIT COURTS. § 2651 
 
 dants on joint and several demands, to allow a discontinuance as to one 
 OT more of the defendants. OJiandler v. Lamrenee, S Mich., 261. 
 
 9642. Demurrer. Where a demurrer is orerruled and the party 
 pleads over, the right of objection is thereby waived, and he cannot 
 afterwards object, on error, that it was erroneously overruled. Wales v, 
 Lyon, 2 Mich.j 276. (Though this case has not been distinctly over- 
 ruled on this point, it is believed not to be now followed.) 
 
 3643. Judgment on demurrer will be given against the party com- 
 mitting the first error in substance, and not in matter of form merely. 
 lUd. See People v. River Raisin and Lake Erie R. R. Company, 12 
 Mich., 389. 
 
 3644. Trial : tbejnry. Where the record showed that the 
 Jury were ■' duly elected, tried and sworn," instead of that they were 
 " sworn well and truly to try the issue," &c., it was held that the error, 
 if any, must be regarded as clerical, and under the Statute — R. 8. of 
 1838, p. 461-2 — ^might be amended after error brought. Owners of Bhip 
 MUwaukee v. SaU, 1 Doug., 306. See also, Comp. L., p. 1201-2. 
 
 3645. The record in error showed that talesmen were called and 
 sworn on a jury, but did not show that they had the requisite quali- 
 fication of jurors. It was held — no challenge appearing to have been 
 taken on that ground — ^that they must be presumed to have been pro- 
 perly qualified. Ihid. 
 
 3646. Held further, that by going to trial without challenge a party 
 Waives any objection to the want of proper qualification of jurors, as 
 well as to the sufficiency of the oath administered to the jury. IMd. 
 
 3647. Where it does not appear from the record that the jury retir- 
 ed to consult, it will be presumed that they found their verdict without 
 leaving their seats. Ihid. 
 
 364S. Where one of the jurors had sat on a former trial of the same 
 cause, and this fact was known to the counsel of one of the parties be- 
 fore the verdict was rendered, and he omitted to object until afterwards, 
 it was held that he was bound by the verdict. Bourke v. James, 4 
 Mich., 336. See to the same eflfect. Sleight v. Henning, 12 Mich., 371. 
 
 3649. Ctaallenge§. On the impannelling of , a jury it is irregular 
 for counsel to put questions to the jurors called, without interposing any 
 challenge ; and no error can be assigned to the action of the Court in 
 allowing jurors thus questioned, but not challenged, to be sworn to try 
 the case. Crippen v. People, 8 Mich., 117. 
 
 3650. A challenge to the array must be in writing. People v. Doe, 
 1 Mich., 451. 
 
 3651. Where a juror is challenged for favor,, the usual mode of try- 
 ing his impartiality is by triers appointed for the purpose, on the de- 
 mand of the challenging party. If the challenging party, when asked 
 
 22 , 337 
 
§ 2658 PRACTICE IN THE CIRCUIT COURTS. 
 
 by the Court how he will have the challenge tried, refuses to indicate 
 the mode of trial, it may he tried by the Court, by administering an 
 oath to the juror, and propounding questions to him. IMd. . 
 
 2632. If a party or his counsel interposes a challenge for favor, or 
 raises any other preliminary question involving an inquiry, and then 
 neglect or refuses to move the trial or examination thereof, he thereby 
 waives such challenge or question. Ibid. 
 
 2653. A person who has formed and holds an opinion that mill 
 dams generally in that part of the country are nuisances, and that all he 
 is acquainted with are such, is not a competent juror for the trial of an 
 indictment for nuisance in keeping up a mill dam, though he states that 
 he is not much acquainted with the dam in question, and has not formed 
 or expressed any opinion in regard to it. Orippen v. People, 8 Mich., 
 117. See as to challenges generally, supra, 923 to 927. 
 
 2654. Province of court and jury. Where a corrupt 
 agreement is charged in an instrument fair on its face, the question of 
 intent is for the jury. Orr v. Lauxy, 2 Doug., 230. See also, Oliver ». 
 Eaton, 7 Mich., 108 ; Bagg v. Jerome, 1 Mich., 145 ; Nye v. Van Huaan, 
 6 Mich., 339 ; Snook v. Davis, 6 Mich., 156. 
 
 2655. Where action is brought in the name of one person, for the 
 benefit, as is claimed, of a bona fide assignee, the question whether 
 there has been a bona flde assignment is not for the Court, but for the 
 jury ; and the Court is not warranted in excluding the .admissions of 
 the nominal plaintiflF, on the assumption that such assignment has been 
 established by the evidence. Hogan v. Sherman, 5 Mich., 60. 
 
 2656. Where a contract in duplicate was left by the parties with a 
 third person, and the evidence as to the arrangement for its subsequent 
 delivery, and the terms upon which it was to become operative, was 
 conflicting, it was held that the question of the terms and conditions 
 upon which the contract was to become operative was one of fact for 
 the jury, depending upon the intention of the parties to be gathered 
 from the whole transaction ; and that the Court was right in refusing 
 to charge that delivery in a particular mode was essential. Jaquith d. 
 Hudson, 5 Mich., 123. 
 
 2657. Whether in a particular case a merchant in Kew York, ship- 
 ping goods to his correspondent in the interior, had authority to make 
 a contract on behalf of the correspondent for shipment on different 
 terms from those ordinarily adopted by common carriers, is a question 
 of fact to be determined by the jury from the evidence ; and the Court 
 cannot, properly, be asked to make any charge that shall absolutely 
 dispose of the fact in controversy. American Transportation Co. v. 
 Moore, 5 Mich., 368. 
 
 265Si. Where there is a conflict of evidence, and the jury, by weighing 
 338, 
 
PRACTICE IN THE CIRCUIT COTJRTa g 2666 
 
 it, are to find facts, it ia the daty of the Court, in instructing the jury, to 
 propound the law, and direct its application to the facts as they may be 
 found. But when the fact is admitted, or undisputed, and there is no 
 conflict of evidence, the question is one of law, upon which direct in- 
 struction ought to be giyen. Wisrwr v. Daoemport, 5 Mich., 501. 
 
 3659. Whether a custom of merchants sought to be established is 
 reasonable or not, is a question of law for the Court, but user, which is 
 the evidence of custom, is matter for the jury, which the Court will 
 submit to them or not, as it shall find the custom legal and reasonable or 
 otherwise. Bourhen. James, 4 MiclL, 336. 
 
 2660. The city of Saginaw was incorporated with territory which 
 constituted about one-fourth of school district No. one of the township 
 of Saginaw. The officers of the district being within the city, thereafter 
 assumed to be officers of school district Na one of the city of Saginaw, 
 and brought suit in that name to recover moneys levied and collected 
 for said school district No. one of the township of Saginaw, claiming an 
 identity of corporate existence. The question of identity having been 
 submitted to the jury as a question of fact ; held, that this was erro- 
 neous. Township of Saginaw u Schod District No. One oftlie City of Sa- 
 ginaw, 9 Mich., 541. 
 
 2661. The question of the sufficiency of an indictment cannot be re- 
 ferred to the jury as one of fact. People v. Cook, 10 Mich., 164. 
 
 2662. Whether a contracting party has, by agreement with an as- 
 signee of a contract, estopped himselffrom making any claim to damages 
 for the non-fulfillment of the contract by the assignor, is a question of 
 fact for the jury ; and in an action on the contract the Court has no 
 right, after evidence has been given of such an agreement, to assume it 
 as established, and exclude all evidence of damages. IMehfield ». Gar- 
 ratt, 10 Mich., 426. 
 
 2663. Where plaintifis were to run for defendant his staves " at and 
 near T," at a specified price, it was held, that whether a point a mile 
 and a half from there was " near T.," within the meaning of the con- 
 tract, was a question of fact for the jury, and could not be decided by 
 the Court as a matter of law. Shaw v. Davis, 7 Mich., 318. 
 
 2664. Charge to tlie jury. The language of a Judge's charge 
 to the jury must be construed with reference to the facts in evidence 
 upon which it is given. People v. Scott, Mich., 287. See AngeU v. Bo- 
 senbury, 12 Mich., 241. 
 
 2663. If the charge contains an abstract proposition of law, having 
 no particular reference to the evidence submitted, it will be presumed, 
 although the language is general, that the jury properly applied it to 
 the case before them. People v. Beynolds, 2 Mich., 422. 
 
 2666. The Court cannot be required to charge upon abstract propo- 
 
 '339 
 
§ 2674 PRACTICE IN THE CIRCUIT COURTS. 
 
 sitions of law not having a bearilig upon the evidence submitted. Doyle 
 9. Stevena, 4 Mich., 87^ See supra, 1546 to 1548, 1552 to 1555. 
 
 3667. ]Von-§ult. The Court cannot compel a plaintiff to become 
 non-3uit. He has always a right, if he chooses, to go to the jury with his 
 case. CahiU v. Kalamazoo Mutwd Insurance Co., 2 Doug., 124. 
 
 3668. Special Terdlct. The Court can add nothing to a special 
 finding, or infer any iacts which the jury have not inferred and set forth. 
 The Court can only draW the legal conclusions from the facts found. 
 People i>. WeUs, 8 Mich., 104. 
 
 3669. Where the jury find the facts specially, it is entirely beyond 
 their province to go further, and, applying the law to such facts, deter- 
 mine that one of the parties is entitled to recover. And any such deter- 
 mination is to be disregarded by the Court, and such judgment given as 
 the facts found will warrant. Eriein v. Cla/rk, 13 Mich., 10. 
 
 3670. The jury wiU find a special verdict at their option ; the Court 
 cannot compel them to do so, or to give reasons for a general finding. 
 Peck v. Snyder, 13 Mich., 21. 
 
 3671. IVliat verdict covers the issnes. Where there are 
 two issues — ^the general issue, and an issue on a special plea — and the 
 jury find a verdict for the plaintiff on the general issue, but render no 
 verdict on the other iBsn6, the judgment will not be reversed if the 
 verdict on the general issue negatives the special plea of defendant on 
 Which the other issue was joined, and the jury could not "have found 
 for the plaintiff had defendant established the truth of his special plea. 
 Brooks V. Bdrymj^ 1 Mich., 145. 
 
 3673. The issue was submitted to a jury whether an alleged will 
 was the last will and testament of the decedent, and whether at the 
 time of executing it he was of sound and disposing mind, and not under 
 the undue influence of the devisee therein named. The juiy returned a 
 verdict that the will was the last will and testament of the decedent, 
 and that at the time of executing it he was of sound disposing mind and 
 memory, and capable of di^wsing of his property by wUl. Held that 
 it covered the whole iraue, and necessarily negatived all undue influence. 
 White V. BaUey, 10 Michi. 155. See supra, 181. 
 
 3673. Certainty fiuverdict. A verdict in ejectment that de- 
 fendant is guilty of unlawfully withholding " the west three-fourths of 
 the north-west fractional quartBr" of a certain section, "excepting 
 twenty-five acres on the west half of said section, and three acres cut off 
 by the road from the south-west comer of said section," is so uncertain 
 in the description it gives that no judgment can be rendered upon it. 
 Hunger v. OrinnM, 9 Mich., 544. 
 
 3674. Verdict for the plaintiff in ejectment for four certain parcels 
 (rfland, describing them, " except so much ot said lasb two described 
 
 34a 
 
PRACTICE m THE CIRCUIT COURTS. § 2684 
 
 portions or parcels of land as is contained in the plat of the village of 
 Royal Oak, recorded in the record of deeds for said county of Oak- 
 land," was held sufficiently certain. Lockwood s. Drake, 1 Mich., 14 
 
 2675. Ejectment for dower. Verdict that " The jury find for the 
 plaintiff, and that the plaintiff is entitled to the possession, during her 
 lifetime, of the undivided third part of [land described] as the reason* 
 able dower of said plaintiff in said premises." Held sufficient. IWd. 
 
 2676. Shaping verdict. Juries rarely give veiy formal verdicts; 
 »nd inquiries of the jurors in Court, and amendments for the purpose 
 of putting in due form what the jury mean by their finding, are tmob- 
 jectionaUe. SleigM v. Remdng, 12 Mich., 371. 
 
 2677. Amending: verdict. A jury brought in a sealed verdict, 
 " We find for the plaintiff the faU amoimt claimed by him on the note." 
 It is not objectionable to permit the plaintiff's counsel to state to the jury 
 what the amount was, and for them to return a verdict for that amount 
 in due form. [Mabtik, Ch. J.] OkoU % ManMn, 13 Mich., 452. 
 
 267§. Finding by Judge. A Circuit Judge may amend his find- 
 ing, and his action in so doing is not subject to review. Sweetzer d. Mead, 
 5 Mich., 33. 
 
 2679. No written request for a finding by the Circuit Judge is neces- 
 sary, except where a party desires a detailed finding on the facts in the 
 case, as well as on the law points. People o. Littlyohn, 11 Mich., 60. 
 
 26§0. The right to except for supposed errors of decision is not 
 affected by the absence of a written finding. Ibid. 
 
 26§1, On trial without a jury, rulings of law which might affect the 
 finding of facts — as upon the admission or rejection of evidence — can- 
 not be reviewed except upon exceptions. But when the only question 
 is whether the facts found support the judgment, the finding of facts is 
 to be treated as a special verdict, and no exceptions are necessary. Tru- 
 do v. Anderson, 10 Mich., 857 ; Wood p. La Jiiie, 9 Mich. 158. 
 
 2682. The finding of facts must set forth the facts found, and not 
 merely the evidence tending to prove theni. Hid; Thomas v. Sprague, 
 la Mich., 120. 
 
 26S3. Where, as a conclusion of law from a finding of fects, the 
 Judge holds the plaintiff entitled to recover, the finding must contain all 
 the facts and circumstances necessary to make out a cause of action. 
 Wood 'B. La Bue, 9 Mich., 158. 
 
 26§4. Testimony by deposition. Where a deposition was 
 taken by stipulation before a justice, who had no power to take it except 
 that derived from the stipulation, it was held not to be a valid objection 
 that the justice had not attached to it such a certificate as would have 
 been required had it been ^taken under the statute by an officer author- 
 
 341 
 
§ 3694 PBACTICB IN THE CIRCUIT COURTS. 
 
 ized to take depositions for the Circuit Courts. Knight v. Emmons, 4 
 Micli., 554. 
 
 S6§5. It is no objection to the rpading of a* deposition on the trial 
 that notice of its filing was not given. If the party taking the deposition 
 gives notice under the rule, (Rule 50 of 1853 — ^Rnle 51 of 1858), object 
 tions of form must be filed within the time limited ; but if he chooses 
 to take the risk of such objections on the trial, he can do so. lUA. 
 
 2656. The deposition of a witness who does not understand the 
 English language, may be taken under the 'act of 1848 — Comp. L., § 
 4370, et seg. — ^though an interpreter. Oampau v. Dewey, 9 Mich., 381. 
 
 2657. And it may be taken down in narrative form, instead of 
 through interrogatories. lUd. 
 
 36§S. The notice of taking depositions under said act, when not 
 served by an officer, must be verified by the affidavit of the party him- 
 self, or, at least, if a suit be pending, by his attorney of record. lUd. 
 
 26S9. The answer of a witness under a commission is not admissible, 
 unless it would have been admitted had he been examined in open 
 Court on the stand. Bliss v. Paine, 11 Mich., 93. 
 
 2690. Where the testimony of a foreign witness was taken by com- 
 mission, and the commission was returned and filed with the clerk, an 
 objection that no instructions for the return of the commission were sent 
 with it was held to be an objection of form, which, under rule 51, was 
 waived if not filed in writing and served within two days after notice of 
 the filing of the commission. FoAxy v. Otis, 11 Mich., 313. 
 
 2691. By the Statutes of 1838, an objection to the competency of a 
 witness whose deposition was taken in the cause, was required to be 
 made at the taking of the deposition, or it was deemed waived. Hasey 
 V. White Pigeon Beet iSugar Company, 1 Doug., 193. 
 
 2692. Where the deposition was taken before a justice under the 
 Statutes of 1838, it was held not necessary to produce proof to the jus- 
 tice that notice of taking it had been igiven to the opposite party, who 
 was not present. The fact that notice was duly given might be proved 
 in the Court to which the deposition was returned. Hchard v. Polhe- 
 mus, 3 Mich., 185. 
 
 2693. Interrogatories will be presumed to have been settled in the 
 ordinary way, under the statute and rules, where nothing appears to the 
 contrary ; and in such case the party may make objection to the com- 
 petency of the evidence for the first time on the trial. (Comp. L., §§ 4357, 
 4248). Angell v. Bosenbury, 13 Mich., 341. 
 
 2694. Objection to variance between evidence and the plead- 
 ing under which it is offered, must be held to be waived where the evi- 
 dence is received and submitted to the consideration of the jury without 
 the objection being taken. McHardy v. Wadsworth, 8 Mich., 349. 
 
 342 
 
PRACTICE IN THE CIECUIT COURTS. § 2703 
 
 3695. Admission of instrument sued on. See supra, 436. 
 A recognizance of special bail is not such a " written instrunient " as is 
 intended by Circuit Court rule 79, which provides that, in any action 
 brought upon a written instrument the plaintiff shall not be put to the 
 proof of its execution, or the hand writing of the defendant, unless its 
 execution be denied by affidavit. EUiott v. Oreen, 10 Mich., 113. 
 
 2696. The genuineness of a recognizance of special bail may be dis- 
 proved by defendants in an action brought thereon. Ibid. 
 
 2697. Evidence before auditor. Where a cause has been 
 referred by the Circuit Court to an auditor, under Comp. L., § 4197, de- 
 positions which have been takenby the auditor and returned into Court 
 with his report, but not attached to or forming a part of it, cannot be 
 used as evidence on the trial of the cause in the Circuit Court. Bewrd 
 V. Spalding, 12 Mich., 809. 
 
 2698. Trial before referees. The Circuit Court, after report 
 of a referee has been filed in Court, cannot, on his application, refer 
 the case back to enable him to review his conclusions upon the facts. 
 The power of the Court to refer the case back is only given where ex- 
 ceptions have been taken, and is to be exercised upon hearing such ex- 
 ceptions. Smith V. Warner, 14 Mich. 
 
 2699. Where the report of a referee is not excepted to, it will stand 
 as the finding or determination of the Court for the purpose of enabling 
 the party in whose favor it fs made to take judgment upon it as of 
 course. Amboy, Lansing and Traverse Bay B. B. Co. v. Byerly, 13 
 Mich., 439. 
 
 2700. The question whether the referee's finding of facts sustains 
 his conclusions of law, can only be raised by excepting to his report. 
 Ibid. 
 
 2701. Assessment of damages by clerli. Under the Stat- 
 utes of 1838— p. 450, § 4— the clerk might assess the plaintiff's dam- 
 ages, on default to a declaration on a covenant to pay the costs and 
 damages which should be awarded in a certain cause, alleging a recov- 
 ery in the cause, and its date and amount. Prentiss v. Spalding, 2 
 Doug., 84. 
 
 2702. The Court can only refer to the clerk, for assessment and 
 report, those cases on default in which such a written obligation or 
 contract as is specified in the statute is set forth in the declaration as 
 the cause of action, or in which the action is upon a promissory note 
 or bill of exchange, and the plaintiff has filed and served with his de- 
 claration a copy thereof. 6'Flynn v. Holmes, 8 Mich., 95. 
 
 2703. For the reversal of a judgment rendered on default and 
 assessment by the clerk, the following reasons were assigned: 
 
 343 
 
§ 2708 PRACTICE IN THE CIRCUIT COURTS. 
 
 1. That the notice of assessment of damages did not state the place 
 where it would be made. 
 
 2. That the assessment was not made by the clerk at his office, but in 
 the Court room — Court being in session — in the absence of defendant's 
 attorney. 
 
 3. That the case was not a proper one for assessment by the clerk — 
 the declaration containing counts for goods sold and delivered, as weQ 
 as the common money counts. (A copy of the note upon which the 
 assessment was made was served with the declaration). 
 
 4. Final judgment was entered on the same day on which the clerk's 
 report was filed. 
 
 5. The Circuit Court overruled, with costs, a motion to set aside the 
 judgment for these reasons. A 
 
 It seems that none of the reasons assigned is sufficient for reversing 
 the judgment. Beeson v. Hottiiter, 11 Mich., 193. 
 
 3704. The assessment of damages, under the Statutes of 183S, was 
 considered as made by the Court, and should appear to have been so 
 made in the judgment record, although the journal entry, from which 
 such record was made up, showed that the damages were assessed by 
 the clerk. Prentiss v. Spalding, 2 Doug., 84. 
 
 2705. Where it was recited in the judgment entiy under the present 
 statutes, in a case not proper for a reference to the clerk, that judgment 
 was Tendered upon the clerk's assessment of damages, but the prior 
 order of reference to assess was to the Court, as it should have been, it 
 was held that the Court could not make any presumption, against the 
 recital in the judgment, based upon such prior order, that the Court 
 actually assessed the damages; but the judgment imports absolute 
 verity. O'Flynn v. Holmes, 8 Mich., 95. 
 
 2706. A judgment was taken against P. and F. on their joint cove - 
 nant that P. should pay all costs and damages that should be awarded 
 against him in a certain cause. The entry did not show that it was 
 shown to the Court, nor did the record show it to be certified by the 
 clerk, which of the defendants was principal, and which surety or bail. 
 (R. 8. 1838, p. 451, § 9). Held no ground for reversing the judgment. 
 Prentiss v. Spalding, 2 Doug., 84. 
 
 2707. Assessment by the Court. It is competent for the 
 Court to assess damages after interlocutory judgment, without calling a 
 jury, if none is demanded. O'Flynn v. Holmes, 8 Mich., 95. 
 
 370§. Assessment by Jnry. Where the maker and indorser 
 of commercial paper are sued jointly under the statute, and one is de- 
 faulted, and issue joined as to the other, it is competent for plaintiff to 
 have damages assessed against the defaulted party, by the jury sworn to 
 344 
 
PRACTICE m THE CIRCmT COURTS. § 2718 
 
 try the issue as to the other ; and on their verdict and assessment to 
 proceed to a joint judgment against both. Storey o. Bird, 8 Mich., 316. 
 
 3709. A motion for judgment as in case of nonsuit, is a special 
 motion, and must be founded upon affidavit, showing the facts necessary 
 to entitle the party to it. Storey o. ChUd, 2 Mich., 107. 
 
 3710. If any part of the ground of a motion consists of facts not ap- 
 parent on the face of the proceedings, an affidavit or other competent 
 evidence of its existence must be presented. Ibid. 
 
 2711. A motion to strike an amended declaration from the files, and 
 the decision of the Circuit Court thereon, form no part of the record, 
 and are not the subject of exception. Peojiie v. Judges of WasJitenaw 
 Circuit Court, 1 Doug., 434. And see MiUerd v. Beeves, 1 Mich., 107. 
 
 2712. Liaches. A motion to set asiije a judgment for irregularity, 
 made two years after it was rendered, the delay being unexplained, is 
 too late. People v. Judges of Calhoun Circuit, 1 Doug., 417. 
 
 3712a. A motion for an assessment of damages in a replevin suit, 
 made the next term after judgment in the case, was held too late ; the 
 parties being out of Court. People v. Judges of Jackson Circuit Court, 1 
 Doug., 802. But as to the lapse of a term affecting the power of the 
 Court, see Jogger v. Coon, 5 Mich., 81 ; Emory «. WhitweB,, 6 Mich., 474. 
 
 2713. Motion by stranger. A judgment in a suit commenced 
 by attachment will not be set aside for irregularity on the motion of a 
 person to whom the property attached had been conveyed by the de- 
 fendant after service of the attachment, but who is a stranger to the 
 record. Peoj^ ». Judges of Calhoun Circuit Court, 1 Doug,, 417. 
 
 2714. Judgment on demurrer. On overruling a demurrer, 
 judgment goes for the plaintiff, unless leave is given the defendant to 
 plead. To the order allowing leave the Court may attach such con- 
 ditions as the circumstances of the case may require, and its action can- 
 not be reviewed on error. Teft v. McNoah, 9 Mich., 201. 
 
 2715. Jludgment by confession. It is no objection to a judg- 
 ment entered up by confession, that the warrant of attorney is upon 
 the same piece of paper as the note it authorizes judgment to he takei) 
 upon. The warrant of attorney and note are still to be regarded as 
 separate instruments, (Comp. L., § 4441) notwithstanding they are thus 
 connected. TwomMy v. Parsons, 10 Mich., 272. 
 
 2716. The note and warrant of attorney bearing different dates, are 
 presumed to have been executed at the times they respectively bear 
 date, notwithstanding they are upon the same paper. JUd. 
 
 fi7Vl, But it would not be a valid objection to a judgment taken by 
 confession, that they were both executed at the same time. Ibid. 
 271§. Judgment In covenant on a replevin bond, may be for 
 
 84$ 
 
§ 2728 PRACTICE IN THE CIRCUIT COURTS. 
 
 damages, instead of the penalty of tlie bond. Prentiss v. Spalding, 2' 
 Doug., 84. 
 
 2719. Setting: aside judgHient. Where the Court makes an 
 order vacating a judgment as to one of two joint debtors, the effect is to 
 vacate it as to both. Van Renssdaerr v. Whiting, 12 Mich., 449. 
 
 2720. Notice of jndg^ment. The party against whom a de- 
 cision is rendered by the Circuit Judge in vacation, is entitled to a 
 written notice, either from the clerk or from the opposite party, before 
 the ton days allowed him for making a case commence to run. People 
 v. Wilson, 12 Mich., 25. 
 
 2721. But a party who, after judgment rendered against him on 
 trial before the Judge, has acted upon the judgment, and procured' 
 orders allowing time to settle a case or bill of exceptions, cannot object 
 that he has had no written notice of the judgment, and insist upon a 
 right to make and serve a case, under Rule 81, until ten days after such 
 written notice. Richwrdson v. Yamkey, 9 Mich., 139. 
 
 2722. Exceptions. A party may allege exceptions to the charge 
 given to the jury, at any time before verdict. Doyle v. Stevens, 4 Mich., 
 87. Comp. L., § 4404. 
 
 2723. A bill of exceptions signed by the Circuit Judge, showing the- 
 exceptions to have been properly taken on the trial, is to be presumed 
 properly signed, and within the proper time, though dated several 
 months after the trial and judgment, and though nothing appears in the 
 bUl itself, or in the record, to show affirmatively that time was aUowed 
 for its preparation and settlement. Sweetzer v. Mead, 5 Mich., 33. 
 
 2724. To enable the Supreme Court to judge of the propriety of 
 instructions to the jary in the Court below, which instructions assume 
 the existence of certain facts, the bill of exceptions must contain either 
 the evidence of those facts, or a statement that there was such evidence. 
 Tyler v. People, 8 Mich., 330. 
 
 2725. Settlement of exceptions. Where time has been al- 
 lowed for preparing and settling exceptions, and it has expired without 
 action, the Circuit Judge has power to make a further order for that 
 purpose. People v. I/ittlejohn, 11 Mich., 80. 
 
 2726. Such further order having been made by the Circuit Judge, 
 he cannot afterwards disregard it, and refuse to settle the exceptions 
 because not presented for the purpose within the time first aUowed. 
 IHd. 
 
 2727. Amendments. The omission of the clerk to enter defend- 
 ant's appearance in a cause, is a mere matter of form, which may be 
 amended by an order nunc pro tune. NoroeU v. McHenry, 1 Mich., 227. 
 
 2728. Where the sheriff's return of sale does not show all the steps 
 required by law to make the sale valid, the Circuit Court may, upon 
 
 346 
 
PRACTICE IN THE CIBCUIT COURTS. § 2734 
 
 application founded upon affidayit, grant an amendment of the return. 
 People V. Judges of Calhoun Oircuif, 1 Doug., 417. See Oaiender v. Oleott, 
 1 Mich., 344. 
 
 2729. After a triaj without a jury, and judgment for plaintiff in the 
 ordinary form, defendant moyed for a new trial, and the Court set aside 
 the order for judgment, and immediately entered judgment again for 
 the same amount, embodying therein a finding of the facts and law by 
 the Judge. Defendant brought error, contending'that the Court could 
 not wholly set aside and vacate a judgment without granting a new 
 trial. Held, that the action of the Court amounted substantially to an 
 amendment of the judgment, and was not erroneous. But the amend- 
 ment was unnecessary, as the statute does not require the Judge's find- 
 ing to be embraced in the judgment. Lorman v. Benson, 9 Mich., 237. 
 And see Amendment. 
 
 2730. Costs. On a trial by jury, if the plaintiff recover less than 
 $100, the judge is to determine whether his claim as established at the 
 trial' exceeded $200, and was reduced by set off; and if so, the plaintiff 
 should recover costs. Bcms v. Freeman, 10 Mich., 188. And see Costs. 
 
 2731. Revivor. The suggestion of the death of the plaintiff, can- 
 not be the subject of an issue ; and whether the defendant is entitled to 
 any notice, is a question that can only be raised on motion to set aside 
 the proceedings for irregularity. La/rned v. WUeox, 4 Mich., 883. 
 
 2732. Cases made for review by Supreme Court. 
 The act of 1851 (S. L., p. 311) did not intend that parties to suits in 
 Circuit Courts should be at liberty to have a case at law re-heard in the 
 Supreme Court upon the merits, like an appeal in chancery. The 
 Court were to judge of the case as "if it were an application for a new 
 trial, and to ascertain from an inspection of the whole case whether the 
 Circuit Judge manifestly erred, either in his conclusions upon the facts, 
 or in respect to the law applicable to them. HUl v. La Fayette Jnm- 
 ranee Company, 2 Mich., 476. (This act was repealed in 1853, and a 
 different practical construction has been put upon the provision adopted 
 in its stead.) 
 
 2733. Case made after Judgment by default. The pro- 
 ceedings in taking judgment on default and an assessment of damages 
 by the clerk, cannot be reviewed on case made. Beeson v. EdUiater, 11 
 Mich., 193. 
 
 2734. Election of ease or exceptions. A party having 
 taken exceptions on a trial in the Circuit Court, has his election to re- 
 move the case to the Supreme Court for review upon bill of excep- 
 tions or on case made. But when he has procured a bill of exceptions 
 to be settled, and has filed the same, he has made his election, and is 
 
 347 
 
§ 2740 PRACTICE IN THE CIRCUIT COURTS, 
 
 not entitled thereafter to make and settle a ease. Richardson v. YcmJUy, 
 9 Mich., 139. 
 
 2735. Case must be settled. Where one ofthe parties caused 
 a case to be filed in the Supreme Court, which he claimed was a case 
 settled after judgment, but it did not conclusively or necessarily show 
 on its face that it was so intended ; and the Circuit Judge who tried the 
 suit and signed the document, certified to the Supreme Court that, in so 
 aigoing it, he did not suppose he was settling a case under the statute, 
 and that the one signed did not set forth the whole facts as they ex- 
 isted ; held, that the papers should be remitted to the Circuit Court for 
 such action as that Court should deem proper under the circumstances. 
 Fa/rrand v. Benfky, 6 Mich., 281. 
 
 2736. The case should show on its face that it is settled and signed 
 by the Circuit Judge for the purpose of review by the Supreme Court. 
 Oard V. Steeens, 12 Mich., 9. 
 
 2737. Presumption of proper settlement. Where th^ 
 case is duly signed by the Judge, and purports to have been settled te- 
 fore him, all previous steps necessary to its settlement must, in the 
 absence of any showing to the contrary, be presumed to have been 
 regularly taken. Bailee v. Ireland, 9 Mich., 154 
 
 273§. Certifying case to Supreme Court. When the 
 case is settled, and filed with the clerk ofthe Circuit Court, either party, 
 desiring action upon it, may cause it to be certified to the Supreme 
 Court. Robertson v. Little, 10 Mich., 371. 
 
 2739. But if the party who has caused the case to.be made, neglects 
 for more than two years to cause it to be certified to tiie Supreine 
 dburt, that Court, by analogy to the statute limiting the time for bringr 
 ing writs of error to two years, will dismiss the case — at least unless the 
 delay is sufiSciently accounted for. Van Blaram v. The j^tna Insu- 
 ranee Co., 6 Mich., 299. But the case cannot be dismissed until actu- 
 ally sent up. Robertson v. LitUe, 10 Mich., 371. 
 
 2740. Presumptions ft>om the case. A case of sununary 
 proceedings before a circuit court commissioner, to obtain possession of 
 lands, was appealed to and tried in the Circuit Court, and after judg- 
 ment for the complainant, a case was made presenting certain jurisdic- 
 tional questions for review ; but the case did not set forth the affidavit 
 for appeal ; and objection was taken in the Supreme Court that only 
 the issue upon the merits was brought up by the appeal, unless such a 
 special affidavit was made as was necessary for a special appeal from a 
 justice's Court. It was held tha,t, if such special affidavit was necessary, 
 the Court must infer that one was made — the jurisdictional questions 
 having been raised and passed upon in the Circuit Court without ob- 
 jection to the affidavit SaUee v. Ireland, 9 Mich., 154 
 
 348 
 
PRACTICE IN THE CiRCUTT COURTS. § 2751 
 
 3741. Evidence to be set forth. If the case is made for re- 
 view on the whole facts, it should embody all the evidence given on the 
 trial. King v. Moore, 10 Mich., 538 ; Gray v. Howard, 12 Mich., 171. 
 But it will be presumed to contain all the evidence unless the contrary 
 appears. Cfard v. Stevens, 12 Mich., 292. 
 
 2742. If the case shows on its face that aU the evidence is not em- 
 braced, the Court above will refuse to hear it, and remand it for correc- 
 tion. Xe« V. Lake, 13 Mich., 220. 
 
 2743. What to be reTlenred on case made. Only those 
 questions are before the Supreme Court which appear to have been 
 passed upon by the Court below. Van Kleek v. EggUston, 7 Mich., 511. 
 
 2744. Though the record shows that judgment below should have 
 been for the party against whom it was rendered, yet if the case does 
 not show that it is brought up for review upon the facts, the Supreme 
 Court cannot render such judgment as the Court below should have 
 given, but can only order a new trial. Brovm v. Ca3/y, 11 Mich., 535. , 
 
 2745. Where a cause was tried in the Circuit Court without a jury, 
 and improper evidence received, and it was then brought to the Su- 
 preme Court for review on the whole facts on case made, it was held 
 that that Court would not reverse the judgment for the admission of 
 improper evidence if there was suflBlcient of an unexceptionable -char- 
 acter to sustaia it. Rose ®. Levris, 10 Mich., 483. 
 
 2746. But the Court must reverse if improper evidence was given 
 to establish a material point, and the nature of the case is such that it 
 cannot be presumed that other evidence was given on that point. Bliss 
 «. Paine, 11 Mich., 92. 
 
 2747. Review of Jury trial. If the case is made after verdict 
 by jury and judgment thereon, the Supreme Court cannot review the 
 facts, but only the rulings and decision of the Circuit Court. Peck v. 
 Snyder, 13 Mich., 21. 
 
 2748. What questions of law may be reviewed. Under 
 Comp. L., § 3421, other questions of law besides those arising upon the 
 evidence, may be reviewed on case made. SaUee a. Irdand, 9 Mich., 
 154. 
 
 2749. Wew trial. Where a case is made for review on the facts, 
 the Supreme Court cannot send the case back for a new trial. Barman 
 n. Cwrharit, 10 Mich., 388. 
 
 2750. Cases agreed upon. A case agreed upon by the parties, 
 and submitted to the Circuit Court for its decision, under § 3421 of Com- 
 piled Laws, must be signed by the parties or their attorneys. Farrand 
 V. Bentley, 6 Mich., 281. 
 
 2751. The case is not a mere stipulation concerning evidence, from 
 which inferences of fact are to be drawn ; but it is equivalent to a find- 
 
 349 
 
§ 2759 PRACTICE IN THE SUPREME COURT. 
 
 ing of facts by a Court, or the special verdict of a jury, in which every 
 fact necessary to a recovery must be expressly found. Ooodnch v. De- 
 troit, 12 Mich., 279. 
 
 2732. Where, therefor-e, a contractor claimed to recover of the city 
 of Detroit the contract price of a certain public work, on the ground of 
 negligence on the part of the city in collecting the assessment therefor, 
 and a case was agreed upon and submitted to the Court which only set 
 forth the steps which the city had taken for the collection, it was held 
 that the Court had no right, upon such a case, to find the fact of negli- 
 gence from the facts agreed upon and set forth. IMd. 
 
 PRACTICE IN THE SUPREME COURT. 
 
 2753. Irregular judgment. A judgment rendered by the late 
 Supreme Court when but two of the Judges were present who had 
 heard the argument of the case, is irregular, and will be vacated on 
 motion, though more than a term has elapsed since its entry. Jogger v. 
 Coon, 5 Mich., 31. 
 
 2754. Voluntary dismissal. A plaintiff in error wiU be allow- 
 ed to dismiss his writ of error on motion, on payment of costs. Bireh v. 
 Brown, 5 Mich., 31. 
 
 2753. Liaches in motions. Motion to dismiss must be made at 
 the earliest opportunity. Warner v. Whitfaker, 5 Mich., 241 ; Steward v. 
 Dixon, 6 Mich., 391. 
 
 2756. Motions based upon the irregular action of the opposite party 
 must be made at the earliest opportunity, and will not be entertained 
 after the lapse of a term, unless some very satisfactory reason is shown 
 for the delay. ffFlynnv. Eagle, 7 Mich., 306. 
 
 2737. The Court wiU not set aside a writ of error for want of proper 
 return, after the lapse of several years, during the most of which time 
 the papers have been in possession of the counsel for defendant in error, 
 and joinder in error was filed while the counsel had the return in his 
 hands. Wattles v. Warren, 7 Mich., 309. 
 
 2758. A copy of the bill of exceptions was sent up instead of the 
 original ; but three terms having elapsed since the return to the writ, 
 and issue in error having been joined without notice of the irregularity, 
 and no explanation being made of the delay, the Court refused to inter- 
 fere to require the original to be sent up. Evans v. Norris, 6 Mich., 69. 
 
 2759. Certiorari in a probate case to the Circuit Court, where no 
 issue of fact had been joined. The Supreme Court wUl not consider the 
 objection that this is not a proper case for certiorari, made for the first 
 time in a brief submitted by defendant in error, by leave of the Court, 
 after the hearing. Matter of Robinson Estate, 6 Mich., 137, 
 
 35a 
 
PRACTICE IN THE SUPREME COURT. § 2769 
 
 2760. In a case which originated before a circuit court commissioner, 
 and was appealed to and tried in the Circuit Court, and then removed to 
 the Supreme Court, a motion made after four weeks in term, and 
 after the filing of joinder in error, to amend the assignment of errors so 
 as to take an objection to the juiisdiction of the commissioner which was 
 not made before the commissioner or in the Circuit Court, presents no 
 equitable claim upon the discretionary power of the Court, and will be 
 denied. Parsons v. Copland, 5 Mich., 144. 
 
 2761. "Where plaintiff in error failed to give notice of suing out the 
 writ of error, but served assignment of errors, a motion to dismiss, made 
 a year and a half afterwards, for want of notice of suing out the writ, 
 was held too late. Smith v. MitelieU, 9 Mich., 2G1. 
 
 2762. W^aiver of irrei^ularities. A notice of hearing given 
 by an appellee in chancery is a waiver of irregularities in taking the ap- 
 peal. Durfee v. McGlurg, 5 Mich., 533. 
 
 2763. A bill of exceptions, returned with a writ of error, appeared 
 to have been signed after the writ was sued out. Held to be at most an 
 irregularity, which was waived by joinder in error. Brown v. Bissdl, 1 
 Doug., 273. 
 
 2764. liaches in procuringr return. Where plaintiff in error 
 has neglected to cause the return to be made in time, and applies to the 
 Supreme Court for relief, he must explain and excuse the delay. Ln- 
 throp V. Sicks, 3 Doug., 223. 
 
 2765. He wiU not be relieved merely upon the affidavit of his attor- 
 ney, that in his opinion there was good and legal cause for suing out the 
 writ of error, and that if the case should be heard on its merits, the 
 judgment below would be reversed. Ibid. 
 
 2766. It is not a sufScient excuse that the clerk below promised 
 to make out the transcript and deliver it to the attorney within the 
 time required by the rule ; that the attorney relied upon this promise, 
 and tfee neglect occurred in consequence of the clerk's failure tp perform 
 it. Ibid. See also, Oarne v. Hall, 7 Mich., 159. 
 
 2767. On a motion for such relief, counter affidavits may be read, 
 showing that it would be against good faith for the plaintiff in error to 
 avail himself of the error complained of. Ibid. 
 
 2768. Reinstating cause. A case which had been dismissed 
 for want of prosecution was reinstated on terms, on affidavit of merits, 
 and of a verbal agreement with counsel for defendant in error giving 
 time ; and this, though the verbal agreement was denied. Scott v. Scott, 
 5 Mich., 106. 
 
 2769. When a motion is made to reinstate a cause at a term follow- 
 ing its dismissal for want of prosecution, the party making the motion 
 
 351 
 
§ 2781 PRACTICE IN THE 8UPBEME COURT. 
 
 should show himself in position to proceed at once to the hearing if the 
 motion should be granted. Bingham v. Parsons, 9 Mich., 144. 
 
 2770. Kotice of special motions is in all cases necessary 
 Where the opposite party has appeared in the cause. Scriimer v. Dose- 
 man, 5 Mich., 383. 
 
 2771. Counter afladavits may be read in opposition to a motion, 
 ■without having been served. Laihrop v. Sicks, 2 Doug., 223. 
 
 2772. A motion not called up on the day for which it was 
 noticed, cannot be taken up on any subsequent day in term, except by 
 consent, unless it has been ordered to stand over to such subsequent 
 day. Ireland v. Spalding, 11 Mich., 455. 
 
 2773. §erTlce on agent. No agent for the service of papers can 
 be recognized under the rules, unless residing at Detroit or Lansing. 
 Maynard v. Penniman, 7 Mich., 333. 
 
 2774. When notices are served upon an agent, the distance of the 
 attorney's residence from the place of holding the Court will detcnuinc 
 the time for which notice must be given, and not the distance of the 
 agent's residence from the Court. Ibid. 
 
 2775. motion to amend. The entry of a special motion for 
 leave to amend, must show in what particular an amendment is desired. 
 And a copy of the proposed amendment, with notice of the motion, 
 should be served on the opposite party. Parsons v. Copland, 3 Mich., 
 143. 
 
 2773. Amending records sent up. The Supreme Court has 
 no authority to amend the records sent up from inferior tribunals. 
 Sweetzer v. Mead, 5 Mich., 33 ; ScrU)ner v. Gay, 5 Mich., 511 ; Scans t. 
 Norris, 6 Mich., 69. 
 
 2TJ'7. But it may in a proper case compel their correction by the 
 Court below, by mandamus. Seribner v. Bay, 5 Mich., 511 ; Mvans v. 
 Norris, 6 Mich., 69. 
 
 277§. It cannot strike out a bill of exceptions on proof that it was 
 settled without notice to defendant in error. Scribner v. Gay, 5 Mich., 
 511. 
 
 2779. Though the Court may, on a proper showing, compel bills of 
 exception to be corrected so as to conform to the facts, it will not do so 
 until it is shown that mistakes exist which are injurious to the party ap- 
 plying for the correction. Ibid. 
 
 27S0. And where the Judge who signed a bill of exceptions has 
 since gone out of office, the bill cannot be remanded for correction. 
 Ibid. 
 
 2781. Where an amendment has been made iji the Court below, 
 since the cause was removed to the Supreme Court by writ of error, 
 but no further return has been had, the Court cannot entertain a motion 
 352 
 
PRACTICE IN THE SUPREME COURT. § 3790 
 
 based upon such amendment, on an affidavit that such an amendment 
 has been made. O'Flynn v. Bogle, 7 Mich., 308. 
 
 27§2. "Where, six months after errors had been assigned in the Su- 
 preme Court, the defendant in error obtained, without leave from the 
 Supreme Court, an amendment to the record in the Court below, with 
 a view to obviate the errors assigned, and then moved the Supreme 
 Court for an order for a further return to bring up the amendment, it 
 was held that the application was too late. O'Flynn v. Holmes, 7 Mich., 
 454. And it would not be granted if there were no objection from 
 laches. O'Flynn v. Eagle, 8 Mich., 136. 
 
 2783. The proper practice when such an amendment is desired, is 
 to apply to the Supreme Court, on affidavit showing the reasons for the 
 amendment, to remit the record for that purpose ; and the Court can 
 then judge whether the case is a proper one to permit an amendment 
 with a view to affect proceedings already taken in the Supreme Court. 
 Ibid. 
 
 3784. The Court will not, by consent of parties, treat that as a part 
 of a bill of exceptions which is not actually incorporated therein by the 
 Judge who settled the same. Magara Fire Inaurtmee Oo. v. Be Cfraff, 12 
 Mich., 10. 
 
 2785. But where the record shows an objection taken on the trial 
 in the Court below to the admission of evidence, which was overuled, 
 the Supreme Court will consider the question presented by the objec- 
 tion, notwithstanding the biU of exceptions does not show an exception 
 to the ruling. The Court will presume, from the sealing of the bill of 
 exceptions, that the ruling was duly excepted to. McBride v. Cicotte, 4 
 Mich., 478. 
 
 2786. The original files should not be altered, even by consent of 
 parties. If an addition is desired, it should be done by stipulation, or 
 other separate paper, without changing the original. Fmrrand n. Col- 
 lins Iron Co., 8 Mich., 136. 
 
 2787. The general power of the Court to allow amendments for the 
 purpose of correcting mistakes, and errors of haste and inadvertence, 
 considered. Farrand ®. Sentley, 6 Mich., 281. 
 
 2788. A§§ignment of errors. Where a cause came to the Cir- 
 cuit Court by certiorari, errors cannot be newly assigned in the Su- 
 preme Court. Zee v. Sardgra/se, 3 Mich., 77. 
 
 2789. Errors of fact may be assigned in the Supreme Court ; and if 
 necessary a trial of an issue upon them may be had by jury in that 
 Court, or the issue may be sent to the proper circuit for trial. Teller v. 
 Wether^, 6 Mich., 46. 
 
 2790. Uncertainty and informality in the assignment of errors are 
 
 23 353 
 
§ 2800 PEACTICE IN THE SUPREME COURT. 
 
 ao ground for quashing the assignment, or for dismissii^ the writ. 
 lUd. 
 
 3791. Under the rule (12) which requires all assignments of error to 
 be special, the general assignment, that judgment should have been 
 given for the plaintifi in error, cannot be noticed by the Court. WAster 
 V. Fisk, 9 Mich., 250. 
 
 2792. A plaintiff in error had failed to procure a return to a writ of 
 error in time, and made application for leave to file it and assign errors. 
 The only special assignment was of errors occurring on the trial, and the 
 record showed no exceptions. As the errors proposed to' be assigned 
 could not be noticed by the Court, leave was refused, though the delay 
 was suflSciently excused. Ibid. 
 
 2793. Where an objection purely technical was made to an assign- 
 ment of errors' at the heajing, and it was evident that the defendant in 
 error could not have been misled, the Court permitted an amendment. 
 Trudo V. Anderson, 10 Mich., 357. 
 
 2794. Where error is brought in the Supreme Court upon a judg- 
 ment in the Circuit, in a case brought there by certiorari to a justice of 
 the peace, an assignment of errors that "the Circuit Judge erred in hold- 
 ing that the justice's judgment was erroneous in the several causes of 
 error assigned in the affidavit for certiorari, " is a sufBcient special as- 
 signment. Berry v. Lowe, 10 Mich., 9. 
 
 2795. Where several exceptions were taken to the charge of the 
 Court, an assignment that the Judge " gave the several instructions to 
 the jury asked by the defendant, and refused to give the several instruc- 
 tions, or any or either of them, asked for by the plaintiffs," is sufficiently 
 special, and the words " several instructions " must be rendered distri- 
 butively, and as applying to each. Ifiles v. Bhodes, 7 Mich., 374 
 
 2796. An objection to a writ that it is not tested in the name of the 
 people of the State of Michigan, is not sufficient to allow the party to 
 make the point that the style oftlie lorit is not in the name of the People, 
 &c. And as the objection is purely technical, an amendment should 
 not be allowed to rectify it to the overthrow of substantial justice. John- 
 son V. Promneial Insurance Oo., 12 Mich., 216. 
 
 2797. Assignments of error are not necessary on common law cer- 
 tiorari. Stokes V. Jacobs, 10 Mich., 290. 
 
 2798. Notice of hearing. What is a sufficient notice of hear- 
 ing. See FranHin i). Mansfield, 8 Mich., 99. 
 
 2799. In computing time on notices of hearing, the day on which the 
 notice is served is to be excluded, and the first day of term included. 
 An intervening Sunday is not to be excluded. Anderson v. Baughman, 
 t, Mich., 298. 
 
 2S00. An affidavit of the service of regular notice ofAearing, and of 
 354 
 
PRACTICE m THE SUPREME COURT. § 2809 
 
 the filing of proof thereof with the clerk, is sufficient evidence of those 
 facts until denied by affidavit, though the proof so filed cannot now be 
 found in the clerk's office. Matter of Robinson Estate, 6 Mich., 137. 
 
 2801. Printing tlie ca§e. Counsel must exercise his own dis- 
 cretion in omitting to print the formal, and what he may deem the un- 
 important parts of the record in chancery appeals ; and the Court will 
 not interfere with the exercise of this discretion, unless it clearly ap- 
 pears to have been abused, Wilson v. WUson, 6 Mich., 272. [The rule 
 — 31 — has since been amended so as to require the printing of the whole 
 record, " except the formal parts."] 
 
 2802. Calendar causes. Where cause has been shown in op- 
 position to an application for a mandamus, and an argument is not had 
 until a subsequent term, the case must be noticed and placed upon the 
 docket for argument as a calendar cause, and printed briefs furnished. 
 People V. Township Boa/rd of FiUmore, 11 Mich., 197. 
 
 2803. Default at hearing. Where the appellant, or plaintiff 
 in error, makes default at the hearing, the decree or judgment of the 
 Court below will be affirmed on motion. Jackson Iron Co. v. Farrand, 
 and Scott v. Scott, 5 Mich., 249. 
 
 2804. Hearing. Where, on writ of error, an objection is taken 
 which goes to the jurisdiction of the Court below, and is fatal to the 
 judgment brought up for review, the Court will not pass upon the other 
 questions raised by the record. Fessenden v. SiU, 6 Mich., 342. 
 
 2805. Where one party concedes that the judgment of the Court 
 must be for his adversary, to the fuU extent of what he could claim on 
 argument, the Court will not hear an argument for the purpose of ex- 
 pressing their opinion on points thus rendered unnecessary to a decision 
 of the cause. Sanger n. Tr-aesdaH, 7 Mich., 9. 
 
 2806. A question as to whether a principle heretofore settled by the 
 Court is or is not applicable to a case now pending, is a question to be 
 discussed at the hearing, and not on motion to docket and dismiss. 
 lovier V. Detroit and MUwamkee Railway Co., 7 Mich., 10. 
 
 2807. So whether the plaintiff in error appeared and argued the 
 cause in the Court below, or consented to the judgment then entered, is 
 one which cannot be raised on affidavit, on motion to dismiss. Ibid. 
 
 2808. Where, after a case reserved for the opinion of the Supreme 
 Court had been noticed for hearing, an addition of specific questions was 
 made to it by the Circuit Judge without the consent of one party, it was 
 held that such party should not be isequired to go to a hearing of the 
 case upon the notice previously ^ven. Farrand v. GoUins Iron Co., 8 
 Mich., 136. 
 
 2809. Matters appearing in the transcript filed, but which confifci- 
 tute no proper part of the record, cannot be considered by the Court. 
 
 355 
 
§ 2817 PRACTICE IN THE SUPREME COURT. 
 
 As, a motion to set aside the service of a declaration, appearing in the 
 return to a writ of error. MiUerd v. Reeoes, 1 Mich., 107. See supra, 
 1588. 
 
 2810. On the hearing of an application for a mandamus, the party 
 showing cause is entitled to open and close the argimient. Peopfe ■». 
 Tfeasurer of Wayne Co., 8 Mich., 393. 
 
 2811. Judgment on exceptlone. The Supreme Court can- 
 not, on reversing a judgment on exceptions, proceed to gire such judg- 
 ment as the fects set forth in the bill of exceptions would warrant. The 
 Court can only consider those facts as they bear upon the rulings of the 
 Court below ; and order a new trial if the exceptions are sustained. 
 Pond 9. People, 8 Mich., 150. 
 
 3812. Daniage§ for delay. Where error was brought on a 
 judgment taken by confession on a promissory note, and the errors as- 
 signed consisted of mere irregularities in the entering up of judgment ; 
 held, on afflrming the judgment, that the case was a proper one for 
 awarding damages for the delay and vexation consequent upon issuing 
 the writ of error. Waterman v. Toms, 7 Mich., 78. 
 
 2813. See a case where damages were refiised. Store;/ v. Bird, 8 
 Mich., 316. 
 
 2814. Costs on motions are allowed to the prevailing party as a 
 matter of course, unless some special reason is shown why they should 
 not be imposed. O'Flynn v. Hagle, 7 Mich., 306. They are also allowed 
 to the prevailing party on the hearing. Supreme Cvwrt Bvh 48. 
 
 2815. The judgment of the Circuit Court being reversed, with costs, 
 and a new trial ordered, it was held that the plaintiff in error was not 
 entitled to tax in his bill of costs those which had accrued in the Circuit 
 Court, but that, unless otherwise specially directed, they must abide the 
 result of the new trial. ie«for v. Sutton, 7 Mich., 329. 
 
 2816. Where a party has given notice of a motion which he declines 
 to call up, costs of the motion will be awarded against him. Johnson v. 
 Promneial Insurance Co. of Toronto, 11 Mich., 455. 
 
 2817. Authority of attorney. The Court will not require at- 
 torneys to produce their authority to prosecute a writ of error on 
 behalf of one of the plaintifis, where there is no showing that they 
 are not duly authorized, and on the contrary it appears that the attor- 
 neys were employed by the other plauitiff to take charge of the case 
 generally, and that the one so employing them was, in fact, the party 
 responsible in the case, and bound to protect the other from liability. 
 Q'Flynn v. Eagle, 7 Mich., 306. 
 
 356 
 
PEINCIPAL AND AGENT. § 2827 
 
 PRINCIPAL AND AGENT. 
 
 3818. General agency, how proved. If the facts and cir- 
 cumstances, or the habit and course of dealing show either an original 
 appointment, or a subsequent and continued ratification of the acts done, 
 they win be sufficient to establish the agency. Ly^ u. Sanbourn, 3 
 Mich.; 109. For a discussion as to whether certain &cts established a 
 trust or an agency, see Titus v. Minnesota Mining Co., 8 Mich., 183. 
 
 2819. Contract by agent. It seems that the execution of a 
 submission to arbitration by an agent, not under seal, need not be in the 
 name of the principal. CWy of Detroit t. Jackson, 1 Doug., 106. 
 
 2820. "Where it distinctly appears in the body of a parol agreement, 
 signed by an agent in his own name, without the addition of the name 
 of his principal, that the principal is the contracting party, the agree- 
 ment will be construed to be that of the principal and not of the agent 
 Ibid. 
 
 2821. Agent's authority. A person is not .bound by his deal- 
 ings with an agent whose authority the principal repudiates. Pratt v. 
 CampbeU, Har. Ch^ 286. 
 
 2822. If the principal recognize and affirm the existence 'and acts o¥ 
 an agent, a mere stranger will [not be permitted to controvert either. 
 Scott V. Detroit Toung Men's Society, 1 Doug., 119. 
 
 2823. A principal will be bound by the acts of one who has acted 
 for him, to the extent to which he has held him out as his agent. Sorrel 
 e. Brewster, 1 Mich., 373. 
 
 2824. As to authority generally, and the consequences of exceeding 
 it, see Hammond v. Michigan State Bank, Wal. Ch., 214 ; Michigan State 
 Bank v. Hastings, 1 Doug., 225 ; Michigan State Bank v. Hammond, 1 
 Doug., 527. 
 
 2825. An authority to an agent to seB, property does not authorize 
 him to exchange it for other property. Trudo v. Anderson, 10 Mich., 
 357. 
 
 2826. Where the statute required the agent of the State prison td 
 givenotice, in a newspaper, for sealed proposals for letting the convicts, 
 and the agent, without giving such notice, hired them oKt for a term of 
 years, the hiring was held void — ^the mode of lettirig prescribed by the 
 statute being a limitation on the power itself, and not merely directory 
 to the agent. Agent of the State Prison v. Lathrop, 1 Mich., 438. 
 
 2827. Agent acting for himself. A sale made by an agent 
 to himself, is void in law. Clute v. Barron, 2 Mich., 192 ; Dwight v. 
 Blackma/r, 2 Mich., 330 ; BeavMen v. Peupa/rd, Har. Ch., 206 ; Ingerson 
 e. Starkweather, Wal. Ch., 346 ; Ames v. Port Hwron Log Driving and 
 
 357 
 
§ 2834 PRINCIPAL AND SURETY. 
 
 Booming Co., 11 Mich., 139. Public ofllcers are agents within this rule. 
 People V. Tovmship Soard of Owrysad, 11 Mich., 232. 
 
 282§. Where persons were authorized to act on behalf of certain 
 townships in letting a contract for the improvement of a harbor, with 
 power in regard to the plan of the work, the materials to be used, the 
 time and mode of completion, security for performance, &c., and a por- 
 tion of their number, though less than a majority, united with others in 
 taking the contract, such contract was held void. People n. ToumsMp 
 Board of Overyssd, 11 Mich., 232. 
 
 3829. One acting as agent for the ovmer of property has no right 
 to make himself the agent of others fbr the purchase of the property, 
 nor to take any advantage of the confidence his position inspires to ob- 
 tain the title himself Moore v. Mandlebaum, 8 Mich., 433. 
 
 3S30. Nor can such agent make a valid purchase from his principal 
 without fully and feirly disclosing all the propositions he has received, 
 and all the facts and circumstances within his knowledge in any way 
 calculated to enable the principal to judge of the propriety of the 
 sale. Ibid. 
 
 2§31. Ratification. Where, in plaintiff's absence, his clerk re- 
 ceived from his debtor a draft, and accepted the same, to be applied, 
 when paid, on the debtor's account, and after the draft fell due the 
 plaintifl wrote the debtor respecting it, not repudiating the act of the 
 clerk, and, on subsequently suing the debtor, offered to return the un- 
 paid draft, it was Tidd that these facts fhmi'shed evidence from which 
 a jury might infer a ratification by plaintiff of the act of the clerk. 
 Jmnison ». PtwJcer, 7 Mich., 855. See Peninsidar Bank v. Hanmer, 14 
 Mich. 
 
 2S32. An agent is incompetent to ratify his own unauthorized act. 
 J^mdo V. Anderson 10 Mich., 357. See supra, 709, 2460. 
 
 3833. As to admissions by agent, see supra, 1718, 1719. That a ref- 
 erence by a party to the business men of a place for infiHmation as to 
 his responsibility, would not make their statements concerning him 
 evidence against hita on the ground of agency, see Blosenbury o. An- 
 gett, 6 Mich., 508. 
 
 PRiNCIPAL AND SURETY. 
 
 2834. When surety liable. Where a debtor made a note to 
 his creditor, and signed his own name thereto, and then, without au- 
 thority, that of' two co-partnerships of which he "was a member, and 
 then went with the creditor's agent to the defendants, who also, at 
 his request, signed the note as sureties, and neither the agent nor the 
 defendants were aware of the want of authority in the debtor to sign 
 358 
 
PRINCIPAL AND SURETY. § 2841 
 
 the co-partuership names to the note, it was hdd that the defendants 
 were liable thereon. Bowen v. Mead, 1 Mich., 433. 
 
 2835. Givingr time to principal. Where a guarantor obli- 
 gated himself to pay all the liabilities up to a sum certain, of the princi- 
 pal, for advances by way of notes, &c., if the principal should feil to 
 pay the same, such obligation " to remain in full force and virtue for 
 the space of three years from the first day of January, 1837," and for 
 the notes so constituting the indebtedness guaranteed, new notes were 
 taken within the three years, falling |due after the three years, it was 
 Tuld, that such credit to the principal beyond the time limited in the 
 bond, discharged the surety. Fanners and Mechanict' Bank v. Kercheoal, 
 3 Mich., 504. 
 
 2S36. The guarantor is equally discharged though the renewal notes 
 be signed by and binding upon one only of several principals constitut- 
 ing a partnership. Ibid. 
 
 3§37. But a creditor may extend the time for his debtor to pay in, 
 without discharging sureties, if he, by the same agreement, expressly 
 reserves his remedy against them. Bailey v. Qovld, WaL Ch., 478. 
 
 283§. New promise after time given. A surety who, after 
 time given by the creditor to the principal, promises to pay the debt 
 with full knowledge of the facts, is liable without any new considera- 
 tion for the promise. The action in such case is upon the original con- 
 tract, and not upon the new promise. Porter v. Rodenpuyl, 9 Mich., 11. 
 
 2539. Discharging securities. Where the vendor in a land 
 contract had taken notes payable to his own order for the purchase 
 price, which notes he indorsed to a bank, and at the same time gave 
 the bank a deed of the lands as security for the payment of the notes, 
 and the bank afterwards took from the vendee a quit claim deed of the 
 lands without the vendor's knowledge, it was held that such deed was a 
 recision of the contract, and that the vendor was thereby discharged 
 from his liability as indorser of the notes, at least to the extent of the 
 value of the land. lees v. Bank of Lansingburg, 13 Mich., 361. 
 
 2540. An agreement between the vendee and the bank, at the time 
 of the delivery of the quit claim deed,, made without the knowledge of 
 the vendor, that such deed should not affect the liability of the vendee 
 on his notes, would not prevent its having tlus effect upon the rights of 
 the vendor as indorser. Ibid. 
 
 2841. IVhen surety bound by Judgment against prin- 
 cipal. The surety in an injunction bond who has undertaken to abide 
 the decree of the Court of Chancery, and pay such damages as may be 
 awarded against his principal by reason of the issuing of the injunction, 
 is bound by such decree, and can raise no question of its correctness in 
 an action upon the bond. Lothrop v. Southworth, 5 Mich., 436. 
 
 359 
 
2849 PROBATE COURTS. 
 
 2S42. Payment of n§ury by §arety. A surety who pays 
 usurious interest to obtain time to pay the debt of his principal in, can- 
 not collect the excessive interest so paid by him of his principal. Thurs- 
 ton V. Prentiss, 1 Mich., 193. 
 
 2§43. But where judgment is given by principal and surety on a 
 note which includes usury, and the judgment is afterwards paid by the 
 surety, he may collect the whole amount of the principal. Ibid. 
 
 2§44. (Special caie : construction. Plaintiff sold certain 
 goods to S., taking from him a mortgage thereon for the purchase 
 money. Defendant agreed with the plaintiff in writing that the goods 
 so sold should at all times remain in the possession of the purchaser, 
 ready to be re-delivered upon the default of any payment, except what 
 had been sold from day to day at regular sales, and that if, upon default 
 of payment, there should not be sufficient goods to liquidate the sum 
 remaining due on the chattel mortgage, the balance should be made up 
 by defendant. Under this agreement defendant was liable for the whole 
 deficiency, without regard to the manner in which the goods had been 
 disposed of, and not merely for such portions as plaintiff could show 
 had been diverted from the ordinary sales by the purchaser. MUlt t. 
 Spencer, 3 Mich., 127. 
 
 PROBATE COURTS. 
 
 3845. Pow^er to issue commission. The Court of Probate 
 had power, under the Statutes of 1838, to issue a commission to take 
 the deposition of a witness to a will residing out of the State. Matter of 
 Itrte Sigh, 2 Doug., 515. 
 
 3§46. Power to record prior decrees. A recOTd made 
 in October, 1847, by a Probate Court, of a decree made by the same 
 Court in February, 1837, admitting a will to probate, was held good 
 evidence of the probate of the will. Ives v. KimbaU, 1 Mich., 308. 
 
 2S47. Approval of a void bond. Although a Judge of Pro- 
 bate acts judicially in allowing an appeal from commissioners to audit 
 claims against estates of deceased persons, and in passing upon the sufS- 
 ciency of the sureties in the appeal bond, yet until such bond is filed as 
 the statute requires, no foundation is laid for the exercise of judicial 
 discretion, and his acts are void. Matter of BicMnson, 2 Mich., 337. 
 
 284S. A bond given by a stranger, conditioned that the appellant 
 shall prosecute, &c., is not a compliance with the statute which requires 
 that the appellant shall give a bond with sufiBcient sureties, &c. Ibid. 
 
 2§49. Verification of petitions, &c. Though the Probate 
 Judge may properly require an absolute verification of anything where- 
 on his action is required upon the merits, yet when the party com- 
 360 
 
PROmBITORT LIQUOR LAW. § 2855 
 
 plained of is cited to appear, and has an opportunity to controvert the 
 facts, there is no rule which renders it imperative on the Probate 
 Court to decline receiving an unsworn petition. Matter of BoUnson, 6 
 Mich., 137. 
 
 2850. And where, in such case, the respondent opposes the relief 
 asked on the ground that the petition is not. properly verified, and 
 makes no issue of fact, there is nothing for the Court to pass upon but 
 the sufficiency of the allegations in the petition. Ibid. 
 
 3S51. Under our probate system, a very large portion of the old 
 equity jurisdiction is vested in the Courts of probate ; and it seems that 
 the Court of Chancery has jurisdiction in those cases only in which an 
 adequate remedy does not exist in the Probate Court. People v. Wayne 
 Circuit Court, 11 Mich., 393. 
 
 PROCESS. 
 
 2S52. Protection by. Where parties act within the scope of 
 an order of a Court of superior jurisdiction, or of an inferior Court 
 in a case where such Court has jurisdiction, they are protected by 
 the same immunities that are extended to the members of the re- 
 spective Courts. Accordingly, where attorneys procured an order for a 
 capias from a Court having authority to issue process against the per- 
 son of the defendant, and under which he was arrested, and they were 
 sued in trespass therefor, it was held, that though the order for capias 
 might be erroneous, it was not void, and the attorneys were protected 
 by it. Wa/rd v. Coztens, 3 Mich., 252. For general rules of protection 
 to officers in the service of process, see Officer. 
 
 PROHIBITION, 
 
 2S53. The writ of prohibition cannot be issued to restrain any ac- 
 tion of inferior Courts which can be reviewed by any of the ordinary ' 
 methods. People v. Wayne Circuit Court in Chancery, 11 Mich., 393. 
 
 PROHIBITORY LIQUOR LAW OF 1853. 
 
 2854. Strong beer and ale were included within the prohibi- 
 tions of this act. People v. Homley, 3 Mich., 330. 
 
 2S55. Jury trial. In an action before a justice of the peace to 
 recover a penalty under the fourth section, the defendant was not en- 
 titled to a jury without paying the fees therefor. Peopfe v. Hoffman, 3 
 Mich., 248. 
 
 361 
 
PUBLIC LANDS. 
 
 PROHIBITORY LIQUOR LAW OF 1855. 
 
 2856. Complaint. A complaint under section nine, which does 
 set forth any facts or circumstances, but merely states the belief of the 
 complainant that the person complained of has, between certain speci- 
 fied days, sold liquors in violation of the act, is not sufficient to confer 
 jurisdiction upon the justice to whom it is made, to issue subpoenas and 
 compel the attendance of witnesses to testify concerning supposed vio- 
 lations. Matter of Morton, 10 Mich., 203 ; Matter of Hall, 10 Mich., 
 210. 
 
 3S57. mortgage of liquors. A mortgage of liquors under 
 which possession has been taken by the mortgagee, canuot be treated :;8 
 T0«:1 as between the parties, or as between the mortgagee and the credi- 
 tors of the mortgagor. Bagg v. Jerome, 7 Mich., 145. 
 
 S858. Sales. The Statute — Comp. L., § 1662 — authorizing moneys 
 paid for liquors to be recovered back, is aimed at sales in the ordinary 
 sense of the term, where the title passes from one owner to a new and 
 different one ; and not to releases on dissolution of a partnership. Jacobs 
 V. Stokes, 13 Mich., 381. 
 
 2859. Although the law avoids all contracts the consideration of 
 which, in whole or in part, consists of liquors sold in violation of the 
 statute, yet if a purchase includes other articles besides liquors, and 
 has been paid for, the statute does not authorize a recovery by the 
 purchaser beyond the amount actually paid for the liquors. Ibid. 
 
 2860. Liquors may be insured against loss by fire, notwithstanding 
 the statute. Niagara Fire Insurance Co. v. De Graff, 13 Mich., 134. 
 
 PROSECUTING ATTORNEY. 
 
 2861. No person who has not been admitted as an attorney at law 
 is eligible to the office of prosecuting attorney. People v. May, 3 Mich. 
 
 PUBLIC LANDS. 
 
 2862. Section sixteen. The act of Congress of March 1, 1847, 
 " to establish a Land Office in the northern part of Michigan," does 
 not authorize, by pre-emption or otherwise, the sale by the United 
 States of any lands which, on survey, might fall within section sixteen. 
 Minnesota Mining Co. v. National Mining Co., 11 Mich., 186. Affirmed 
 by the Supreme Court of the United States. 
 
 2863. Trespass on. The general government has all the com- 
 mon law rights of an individual in respect to depredations committed 
 upon the public lands. And the Commissioner of the Qeneral Land 
 
 363 
 
PUBLIC LAITDS. § 2870 
 
 Office may lawfully direct the seizure and sale, by the local land officers, 
 on behalf of the government, of timber cut by trespassers on the public 
 lands. Steplienson v. Little, 10 Mich., 433. 
 
 2864. Town sites. The act of Congress " for the relief of citi- 
 zens of towns upon the lands of the United States, under certain circum- 
 stances," approved May 23, 1844, was intended to apply exclusively to 
 actual and existing towns, and not to such lands as may have been 
 selected by non-resident claimants as the site for a prospective town. 
 Matter of SeOty, 6 Mich., 193. 
 
 3S6S. The act was intended for the protection of citizens of villages 
 and cities that had grown up or might grow up on government lands, 
 and to secure to them severally, at the minimum price, all lands actually 
 occupied by them respectively for village or city purposes ; and to them 
 collectively, for the use of the village or city, such other lands as might 
 be embraced in the government subdivisions within its limits. Ibid. 
 
 2S66. The rules and regulations to be prescribed by State legislation 
 under the act, are to relate to the determination of claims to possession, 
 and the extent of possession that may fairly be considered as falling 
 within an occupancy for town purposes, as well as to the disposition of 
 the part of the land not actually occupied for town purposes by individ- 
 uals. lUd. 
 
 2867. The act of the legislature of Michigan relative to Ontonagon, 
 approved February 29, 1853, was held void under said act of Congress : 
 Firat, because undertaking to dispose of the whole trust to the person 
 named therein, and his grantees, and authorizing no one else to be con- 
 sidered or receive any relief; and. Second, because not prescribing any 
 rules and regulations for the execution of the trust. lUd. 
 
 2868. A claimant under said act of Congress, whose petition shows 
 that the land claimed had not been actually occupied at the time the 
 State legislation designed to carry out the act was adopted, and that it 
 was afterwards occupied only as a farm, does not come within the pro- 
 visions of said act, and is entitled to no relief. lUd. 
 
 2869. Where limd has been entered by the County Judge under 
 said act of Congress, and the trustee is proceeding to adjudicate upon a 
 claim made to a portion thereof, a person who sets up a right to such 
 portion as a pre-emptioner for agricultural purposes, and claims that the 
 same was never occupied for town purposes, and was not legitimately 
 entered by the trustee, has a right to appear before the trustee and be 
 heard. Ihid. 
 
 2870. On the hearing by the County Judge of a claim under said 
 act of Congress, a citizen and tax payer of the town, who objects that 
 the claimant is not entitled to the land claimed, but that it is a part of 
 
 363 
 
§ 3879 QUESTIONS RESERVED. 
 
 the common fund, to be disposed of for the benefit of the town, is en- 
 titled to appear and be beard. Ibid. 
 
 QUESTIONS RESERVED. 
 
 3S71. TVhat may be reierred. The Circuit Court can re- 
 serve for the opinion of the Supreme Court questions of law only, and 
 not questions of fact, or questions involving both law and fact. People 
 V. Adwards, 5 Mich., 22 ; Bagg v. City of Detroit, 5 Mich., 66 ; English n. 
 FavrehUd, 5 Mich., 141 ; Clark «. Dorr, 5 Mich., 143. 
 
 3§72. A motion for a new trial, on the ground that the 
 verdict is against evidence, for the reason that the facts proved, or to 
 prove which evidence was given, did not make out the crime, embraces 
 both law and fact A motion for a new trial on the ground that the 
 verdict is against the weight of evidence, presents a question of fact 
 alone. And neither of these questions can be reserved for the opinion 
 of the Supreme Court. Peoi^ v. Adwards, 5 Mich., 22. 
 
 8873. In equity. Questions of law may be reserved in equity 
 cases. Bagg v. City of Detroit, 5 Mich., 66. 
 
 3874. Hoiv presented. The questions must be presented di- 
 rectly and definitely ; and the Supreme Court cannot be requested to 
 look at a statement of facts and objections, and infer what questions, 
 among the many which arise on them, are the questions which were 
 meant to be reserved. Ibid. They must be distinctly propounded. 
 Englith «. FawcMd, 5 Mich., 141 ; OUvrk n. Dorr, 5 Mich., 143. 
 
 2875. Where trial was had by jury, and various objections were 
 raised as to the admissibility of evidence, and to its sufficiency, and the 
 party objecting conceded that the opposite party was entitled to judg- 
 ment if the objections were not well taken, and the whole case was 
 thereupon reserved for the opinion of the Supreme Court upon the ob- 
 jections so taken ; it was held that the Court had no jurisdiction. Eng- 
 lish V. FairchUd, 5 Mich., 141 ; Clark d. Dorr, 5 Mich., 143. 
 
 3876. Hast be case of doubt. The statute does not intend 
 that questions should be reserved unless the Judge below has well 
 founded doubts upon them, save where they are new and of public 
 importance. Bagg d. City of Detroit, 5 Mich., 66. 
 
 3877. Appeal afterwrards. It is no objection to the jurisdic- 
 tion of the Supreme Court on questions reserved, that the same ques- 
 tions may afterwards come up on exceptions or appeal. Ibid. 
 
 3878. Tlie Recorder of Detroit cannot reserve for the 
 opinion of the Supreme Court, questions arising upon the trial of 
 offenses against the city ordinances. People «. Jaekson, 8 Mich., 78. 
 
 3879. IVant of constitutional povrer, A plea in bar was 
 
 864 
 
QUO WARRANTO. § 3885 
 
 interpesed in chancery, and the Circuit Judge, instead of passing upon 
 it, reserved the question of its sufficiency for the opinion of the Supreme 
 Court. Held, that the Supreme Court had no jurisdiction of the ques- 
 tion ; the constitution having conferred upon it appellate jurisdiction 
 only, except in certain special cases, of which this was not one. Banger 
 «. Trumdail, 8 Mich., 543. [This case is regarded as having settled, for 
 all practical purposes, that the Supreme Court has no jurisdiction of 
 questions reserved.] 
 
 QUO WARRANTO. 
 
 38§0. To try right to an office. Where a person intrudes 
 himself into an office, in consequence of the unlawful decision of a 
 board of canvassers, the proper remedy is by motion to the Supreme 
 Court for leave to file an information in the nature of a quo warranto, to 
 try the right to such office. But the Court has a discretion as to the 
 granting of such motion. People v. Tisdale, 1 Doug., 59. 
 
 2S81. Consent of relator to filing. The fact that an infor- 
 mation was filed by the Attorney General as on the relation of a claim- 
 ant to an office, without the knowledge or authority of such relator, 
 will not entitle him to have the information dismissed on motion. But 
 the Court will allow him, at his option, to withdraw from the proceed- 
 ing. Peoph V. Knight, 13 Mich., 330. 
 
 8883. Office terminated. An information to try the right to 
 a public office, will not be dismissed on the ground that the office has 
 expired since information filed. To oust the incumbent is not the sole 
 object of the proceeding, but, under the statute, if he is found guilty of 
 the intrusion, a fine may be imposed, and costs recovered ; and if the 
 relator claims the office, and is found entitled to it, he may recover 
 damages. People v. Ha/rtwell, 13 Mich., 508. 
 
 2883. Plea to. All that is necessary to state in a plea of title to 
 an office, is the authority for holding the election, the holding it, and 
 that defendant received the greatest number of votes for the office. 
 People V. Van Cleoe, 1 Mich., 363. 
 
 2884. But it is not enough that an officer appointed for a temporary 
 purpose should show a legal appointment. He must show the contin- 
 ued existence of every qualification necessary to the enjoyment of the 
 office. People ». Mayworm, 5 Mich., 146. 
 
 2885. Relator's title. Where the information, charging the 
 defendant with usurping the office, and requiring him to show his right 
 thereto, contains in addition an allegation that the relator, by virtue 
 and warrant of due and regular election, is in law and in right entitled 
 to have, hold and exercise said office, it is not necessary that the rela- 
 tor's title to the office be set forth. People v. MUes, 2 Mich., 348. 
 
 865 
 
§ 3691 QUO WARRANTO. 
 
 2886. Against corporations. Whether quo warranto or scire 
 facias is the proper remedy by which to proceed against a corporation 
 for violating its charter, quere. People o. OaUand County Bank, 1 Doug., 
 383. [The Revised Statutes of 1846— Comp. L., ch. 161— contain pro- 
 visions giving this remedy against corporations.] 
 
 3887. It is not necessary to set forth the franchises and privileges 
 alleged to be usurped, except in general terms. It is always the right 
 of the government to call upon those who assume corporate powers, to 
 show by what warrant they do so ; and when the defendants set forth 
 their claims by plea, the Attorney General may show by replication the 
 special grounds he relies on. People v. Biver Baisin and Lake Erie B. 
 B. Co., 13 Mich., 389. 
 
 2888. Pleas.. Information calling upon the defendants to show 
 by what right they assume to exercise certain banking powers. 
 Plea, setting forth a charter of defendants as a railroad corporation, 
 which gave them no authority to issue circulating notes ; and stating 
 the issue by defendants of certain certificates which, as described, 
 might or might not be within the statute against unlawful banking, and 
 then denying that defendants have exercised the franchises charged, 
 "except as aforesaid." Held, that as the plea neither confessed nor de- 
 nied the exercise of banking powers, the issue tendered by it was im- 
 material. Ihid. 
 
 2889. To an information in the nature of a quo warranto, requiring 
 a corporation to answer by what warrant it claimed to have, use and 
 enjoy certain corporate powers, &c., which it was therein alleged to 
 have usurped, a plea setting forth the charter of the corporation, by 
 which the powers claimed were conferred in presenti, is a prima facie 
 defense ; for the commencement of a legal existence being thus shown, 
 it will be presumed that the corporation continued to exist, and to per- 
 form its duties, until the contrary is alleged. Attorney Oenerai v. Michi- 
 gan State Bank, 3 Doug., 359. 
 
 2890. And where, in addition to this, the plea contained allegations 
 designed to show, either a continued existence of the corporation down 
 to the filing of the information, or that the State was estopped from 
 insisting upon forfeiture of the corporate franchises for causes which 
 arose prior to a certain period, it was held that these allegations were 
 surplusage, and on motion they were ordered to be struck out. Ibid. 
 
 2891. Conclusion of plea. Information charging respondent 
 with intruding into a public office ; averring that an election to fill the 
 office was held ; that nelator received a certain number of votes, and was 
 thereby elected. A plea to this information, that no election was held 
 for this office, and that no votes were cast for the purpose, should con- 
 
 366 
 
RAILKOAD CORPORATIONS. § 2898 
 
 elude to the country, and not with a verification. People v. BartweU, 
 
 12 Mich., 508. 
 
 2§92. Replication : duplicity. A replication which, to show 
 that defendants usurp the franchise of banking, avers that certificates 
 issued by them are in the similitude of bank bills, and also that they 
 are issued with intent to be put in circulation as money, is double. Peo- 
 ple V. River Bamn and Lake Erie B. B. Co., 13 Mich., 389. 
 
 2S93. Judgment on default. Upon the default of defendant, 
 where the information is filed on relation of the claimant to a public 
 office, the Court will render judgment of ouster against the defendant, 
 but cannot adjudge the relator entitled to the office. People v. Connor, 
 
 13 Mich., 238. 
 
 2894. Trial of igsue§: motion for new. trial. Where 
 issues framed in the Supreme Court are sent to one of the Circuit 
 Courts for trial, the Circuit Judge should make report of the trial, em- 
 bracing sufficient of the proceedings to show the bearing of any legal 
 rulings made by him to which exception was taken, that the parties may 
 have such rulings reviewed on motion for a new trial. The motion can- 
 not be heard on affidavits as to what the proceedings were. People t. 
 Baekett, 14 Mich. 
 
 2893, If a party moves for a new trial on the ground that the ver- 
 dict was against evidence, the Judge must report the evidence in full, 
 and also whether the verdict upon the evidence was satisfactory to him. 
 And he should fix a time for settling his report, and cause notice thereof 
 to be given to the parties, that they may be present. lUd. 
 
 RAILROAD CORPORATIONS. 
 
 2896. Fence§. Under the General Railroad Act, the liability of 
 corporations organized under it, and their agents, for damages which 
 may result from the neglect of the corporation to erect and maintain 
 fences on the sides of the line of road, attaches as soon as they have 
 possession of the route for the purpose of constructing the road. Gard- 
 ner t. Smith, 7 Mich., 410. 
 
 2897. A contractor for the construction of the road is an agent of 
 the corporation within the meaning of this provision. And he is pri- 
 marily liable to the same extent that the corporation would have been 
 for the same acts or omissions. lUd. 
 
 2898. Where, therefore, whUe a contractor was engaged in con- 
 structing a railroad through certain premises, and had taken away 
 fences for the purpose, the sheep of the owner of the land escaped and 
 were lost in consequence, it was lidd, that the contractor was liable 
 for the loss, notwithstanding the owner turned the sheep into the field 
 
 367 
 
§ 2906 RECOGNIZANCE. 
 
 after the route was taken possession of, and while the contractor was 
 constantly throwing djwn the fences for his purposes. Ibid. As to 
 fencing railroad track, see supra, 1846 to 1849. 
 
 2899. Subscription books. Under the General Railroad Act, 
 a railroad company was organized, with articles of association which 
 fixed the amount of capital stock, and named five commissioners to 
 open books for subscriptions to the stock. The commissioners, how- 
 ever, never opened such hooks, but a subscription paper was circulated 
 by an agent appointed by the directors, and defendant subscribed a 
 sum thereon which he subsequently on several occasions offered to 
 pay. Sdd, that the promise was without consideration, and he was 
 not liable thereon. Shurtz v. Schoolcraft and Three Rivera BaUroad Co., 
 9 Mich., 269. 
 
 2900. Assessments. Under said General Railroad Act, no levy 
 Qf assessments could be made until the whole amount of the capital 
 stock specified in the articles was subscribed. lUd. 
 
 2901. Right of way: purchase of nndivlded interest. 
 A grant by one of several tenants in common to the Detroit and Pontiac 
 Railroad Company, though not effective as a conveyance, as againsf 
 the others, is effectual as a release of damages by the grantor. Draper 
 V. WUUams, 2 Mich., 536. 
 
 RECOGNIZANCE. 
 
 2902. IVho may talie. Section 6002 of Compiled Laws does 
 not confer authority upon the officers therein named to take recogni- 
 zance of persons in custody, charged with offences, after indictment 
 found. People v. Butan, 3 Mich., 42. 
 
 2903. Execution by sureties alone. Sureties in a recogni- 
 zance may be bound separately from their principals. People v. Dennis, 
 4 Mich., 609. 
 
 2904. Description of offense. A recognizance need not set 
 out the offense with the same particularity as an indictment. If de- 
 scribed with such certainty as to show that the case is one in which the 
 officer is empowered to take bail, it is sufflcieni. People v. BtUan, 3 
 Mich., 42. 
 
 2905. The recital of a charge that the principal " did set fire to 
 and wilfully burn a building, situate," &c., " known as the Canal Mills," 
 and stating the ownership, was held sufficient. lUd. 
 
 2906. The description of the offense as " the crime of incest" is 
 sufficient ; and the facts constituting the offense need not be set out. 
 Daniels «. People, 6 Mich., 381. 
 
RECORDING LA.W8. § 2914 
 
 390T. So also where the description is " the crime of attempt to 
 procure an abortion." Ibid. 
 
 3908. If the offense has a definite and well understood general 
 name — as larceny — describing it by such name is sufficient. Peoj^ v. 
 Denrds, 4 Mich., 609l 
 
 2909. Otiier recitals. Wltere a ree^^iaanoe Ins « condition 
 to do some act for the doing of which it may properly be taken, and 
 the Court or officer before whoQi it is taken has authority therefor, 
 the recognizance is valid although it does not redte the special circum- 
 stances under which it is taken ; and in declaring upon such recognt- 
 aance, it is not necessary to aver facts showing that tbe Court or officer 
 had authority to take it. Ibid. 
 
 2910. Where defendant has been committed for want of bail by the 
 examining magistrate, and subsequently, on his own application, is let 
 to ball by a commissioner, it is not necessary that the recognizance 
 should show upon its face that the offense was committed within the 
 jurisdiction of the magistrate. The entering into such recognizance 
 beftig a voluntary act of defendant, of which he can only avail himself 
 on his own showing of a legal commitment, the presumptions are in 
 favor of its validity. Saniels v. Peopt&, 6 Mich., 381. 
 
 0911. £iOS§ of indictment. The destruction of an indictment 
 before the term at which the accused is recognized to api>ear, is no de- 
 fense to an action upon the recognizance. Peo^ v. Dennis, 4 Mich., 609. 
 
 RECORDING LAWS. 
 
 3912. IJnaathorized record. The registry of an instrument 
 not required by law to be recorded, is notice to no one. Wing v. Me- 
 DoioeU, Wal. Oh., 17.5 ; Dutton v. Ives, 5 Mich., 515 ; Galpin v. Abbott, 6 
 Mich., 17. This principle applied to a mortgage by one not having the 
 title ; to an agreement to pay off a mortgage, and to a deed not suffi- 
 ciently witnessed, in these cases respectively. See "An act to confirm 
 deeds and instruments intended for the conveyance of real estate in 
 certain cases," Laws of 1861, p. 16, for confirmation of records of defec- 
 tive instruments in certain cases. 
 
 2913. Record of mortgage fk-om one having no title. 
 Where a person mortgages lands which he holds under a bond for a 
 deed, he conveys no legal interest in the land, but only an equitable 
 interest, and the registry of such mortgage is notice to no one. Wmg 
 «. MeDoweO,, Wal. Ch., 175. 
 
 2914. Tlie object of registry laws is to protect subsequent 
 bona fide purchasers. An unrecorded deed was good against the 
 grantor, under the Ordinance of 1787. QoAffffyio^DuTyrmii, WaL Ch., 360. 
 
 34 369 
 
§ 2923 RECORDING LAWS. 
 
 3915. I*riorlty. A party- claiming priority under a registry law, 
 must show a compliance with its provisions. Thompson v. Mack, Har. 
 Ch., 150. 
 
 2916. But where his deed is first duly recorded, the presumption Ib 
 that he is a bona fide purchaser without notice, until the contrary ap- 
 pears. Oodfroy v. Disbrow, Wal. Ch., 260. 
 
 2917. Although a party may not himself be a bona fide purchaser 
 without notice, yet if his grantor was such purchaser, he is entitled to 
 all the rights of such grantor, and the protection which the law would 
 give him. Ibid. 
 
 291S. Erroneous record. Where a deed, absolute in form, is 
 in fact a mortgage in its inception, it should be recorded as such ; and if 
 recorded as a deed, it will not have priority over a prior unrecorded 
 mortgage. Thompson v. Mack, Har. Ch., 150. 
 
 2919. Tlie act of 1§27 " concerning mortgages," was not con- 
 trolled in relation to mortgages by the act of the same date " concerning 
 deeds and conveyances." Weed v. Lyon, Har. Ch., 363. 
 
 2920. Deeds by Oovernor and Judges. Conveyances of 
 land by the United States, whether directly through the President or 
 by the agency of land boards, lilie the Governor and Judges, do not 
 come within the purview of recording laws, unless the terms employed 
 specially include them ; and there is nothing in the statutes now or 
 heretofore existing in this State, that will render a deed from the Gov- 
 ernor and Judges void in favor of a subsequent grantee without notice, 
 whose deed was first recorded. Moran v. Pcitmer, 13 Mich., 367. 
 
 2921. Illegible name. It is not a valid objection to the record 
 of a deed, that the name of one of the subscribing witnesses cannot be 
 made out, and that it is apparently a, foe simUe of the original. WhUweU 
 V. Bmory, 3 Mich., 84. 
 
 2922. Mistake in deed. A contract to give a mortgage was 
 put upon record, but by mistake in drafting it, only the starting point 
 in the description of lands was given. A mortgage upon the lands in- 
 tended to be described was subsequently given and placed upon record. 
 It was hdd, that the record of the contract was not notice to the mort- 
 gagee, since no one could say from the contract what was the specific 
 land upon which the mortgage mentioned in it was to be given. Bwr- 
 rows «. Baughma/n, 9 Mich., 213. As to whether the record of a deed 
 
 <containing a mistaken description is notice, see supra, 1005. Also, 
 §«»>fc «. Thomas, 6 Mich., 76. 
 
 2923. Where property was described in a mortgage as "lot number 
 one, in -section twenty-eight, on the Forsyth or Porter Farm, in the city 
 of Detroit— being on -the southwest comer of Fort and Sixth streets," 
 which description .was correct, except as to the section, which should 
 
RECOtTPMBNT. § 3931 
 
 have been eighteen, and it did not appear that there was a section 
 twenty-eight on the fann named, it was Mtf that the record of such 
 mortgage was notice to subsequent purchasers of the property. Cooper 
 e. Bigley, 13 Mich., 463. 
 
 3924. Whether, where a description is so framed that it may be in- 
 tended for one lot as well as another, the record of the instrument is 
 not sufficient to put a purchaser of either upon inquiry, quere. Ibid. 
 And see supra, 1005. 
 
 3925. Indeflnite record. A writing was recorded as a sepa- 
 rate paper, which referred to the "within mortgage," but did not in any 
 way describe or identify the mortgage. It was held not to be evidence 
 that the writing recorded was indorsed upon any instrument not re- 
 corded with it, as that was an extrinsic feet not within the purview of 
 the registry laws. BasseWv. Mathcmay, 9 Mich., 28. 
 
 3936. Collateral -writing. Where a chattel mortgage was 
 given to secure the performance of a written agreement, the latter was 
 held to be no part of the mortgage, and therefore not required to be 
 filed with it in order to render the record notice to third persons. 
 Byram v. Gordon, 11 Mich., 531. 
 
 3937. Deed not executed by ail the grantors. Where 
 a deed from several grantors is put upon record, as to only a part of 
 whom it is properly executed and witnessed, the record is evidence of a 
 deed as to those parties only by whom it has been properly executed, 
 and whose execution of it has been duly witnessed so as to entitle it to 
 record had they been the only grantors named. JoK v. Bedaon, 10 
 Mich., 31. 
 
 2938. Notice to prior incumbrancers. The record of a 
 conveyance or incumbrance is not constructive notice to a prior incum- 
 brancer. Cooper 0, Bigley, 13 Mich., 463 ; James v. Brown, 11 Mich., 25. 
 
 RECOUPMENT. 
 
 3939. Crcneral rule. A defendant can recoup those damages 
 only which spring out of the same contract or transaction upon which, 
 the suit is brought. Wa/rd v. WiUson, 3 MichT 1. 
 
 3930. Where defendant elects to recoup, he can only do so in abate- 
 ment of the plaintiff's demand. He cannot go beyond that, and have a 
 balance certified in his favor. Wca-dv. FeUert, 3 Mich., 281. See this 
 case for the distinction between set off and recoupment. 
 
 3931. By one of two defendants. In an action on a pro- 
 missory note, given by two, on a contract of purchase by one of the 
 makers only, it is competent to recoup damages growing out of the 
 
 «71 
 
g 8933 REMEDT. 
 
 contract of pnrdiase, to the- same extent as if the note had been given 
 B7 the- purchaser alone. McHard^ v. Wadsvwrth, 8 Mich., 349. 
 
 RELIGIOUS SOCIETIES. 
 
 3933. Grant to Bishop for ctanrcli: control of 
 Cburcta. Land was conveyed to L., Bishop of Detroit, and Ms 
 successors in office, in trust, for the erection of a church thereon to be 
 used as a place of religious worship, and for the spiritual use, benefit 
 and behoof of the German Roman Catholic Congregation, in the city 
 of Detroit, according to the rites and ceremonies of said Roman Cath- 
 olic Church, and for other trusts therein expressed. The deed also 
 provided' that in the event of a vacancy in the office of Bishop happen- 
 ing between the death of Bishop L. and the appointment of his sue 
 cessor, the premises should vest, during such vacancy, in the Arch- 
 bishop of the Roman Catholic Church, of which the Diocese should be 
 a sufiragan. Trustees of the church were afterwards elected under ch. 
 52 of^the Statutes of 1846. In a controversy between the officiating 
 priest and the trustees as to which had the right to rent the slips, it w»6 
 held: 
 
 t. That under the deed of trust, and the constitution, laws and usages 
 for the government of the Roman Catholic Church, by which the ad- 
 ministration of the temporalities of the church is vested in the parish 
 priest, the right to rent the sHps belonged to the priest, and not to the 
 trustees. 
 
 2. That the provisions of said statutes as to the organization of re- 
 ligious societies were not mandatory, but permissive; and that no 
 cliurch could become incorporated under them, where the power the 
 Statute would confer upon the corporators was, by the constitution, 
 laws and usages of the church, lodged in another body ; but the person 
 or persons in whom such power was vested by the constitution, laws 
 and usages of the church, were entitled to become incorporated "under 
 g. 23 of said chapter of the statutes. Smith v. Bonhoof, 2 Mich., 115. 
 
 The statutes as to the organization of religious societies have since 
 been changed. See Comp. L^ ch. 68 ; Laws of 1861, p. 238, and of 1863, 
 Q. 43. As to gifts, &&, to religious societies^ see Wills. 
 
 REMEDT. 
 
 39^3.t Cbotce of.. That where one holds a. chattel mortgage 
 a^ security for the payment of a note,, and afterwards takes a mort- 
 gage on real estate conditioned in the usual- fbrm fdr the performance 
 of the condition of the note, he is not obCged to resort to the chattel 
 373 
 
EBMiEVIN. § 2940 
 
 mortgage before foreclosing that upon real estate, see Savia o. Sider, 5 
 Mich., 423. 
 
 2934. Collateral. That the judgment of a Court having jsris- 
 diction of the person and of the subject matter, cannot be assailed col- 
 laterally, on the ground that the record does not show the demand sued 
 to have been due, or to have belonged to the plaintiff, see Van Kleek r . 
 Eggleston, 7 Mich., 511. 
 
 REPLEVIN. 
 
 3935. In ivhat cases. A supervisor entitled to the exclusive 
 possession and control of an assessment roll, may bring replevin in his 
 official character therefor. PhmUx v. Clark, 2 Mich., 321 
 
 3936. One cannot bring replevin for property actually in Mis own 
 possession at the time, «gainst an dfficer who has levied upon but has 
 not removed it. Hickey v. Hinsdale, 12 Mich., 99. 
 
 3937. The rule that a -tenant in common of chattels cannM main- 
 tain replevin against his co-tenant, for the common property, applies to 
 tenants in common of «hips and vessels. WethereB, v. Spencer., ZtlDiii., 
 123. 
 
 3938. Plaintiff had a contract with a firm engaged in sawing lum- 
 ber, by which they were to receive certain saw logs belonging to hiro, 
 manufacture the same into lumber, ship the lumber to parties to whom 
 the same had been contracted, receive the payment therefor, and pay 
 over to him a certain amount per thousand feet, retaining the balance 
 for their services. The contract provided that the logs and lumber 
 were at all times to beithe propeaty of the plaintiff until he hiwi received 
 the amount so to be paid to him. The logs having been 'levied upon in 
 tlie hands of the firm, as their property, it was held, X\sat plaintiff was 
 entitled to immediate possession, and might maintain replevin therefor. 
 Basaett d. Armstrong, 6 Mich., 397. 
 
 3939. Defendant being in possession of a quantity of wheat, plain- 
 tiff brought replevin for one hundred bushels, which were measured 
 out and taken imder the writ from the whole quantity. Held to be no 
 objection to the maintainance of the action, that plaintiff did not de- 
 mand and take under the writ the whole quantity; the evidence show- 
 ing the whole to have been the plaintiff's, and that he did not own as 
 tenant in common with others. Orotcse v. Derbyshire, 10 Mich., 479. 
 
 3940. For beasts distrained. The statute — Comp. L., p. 
 1341 — giving a writ of replevin to one whose beasts are distrained or 
 impounded, provides for a special proceeding ; and expressly negatives 
 a remedy by replevin in any other manner than is therein provided- 
 Johnson v. Wing, 3 Mich., 163. 
 
 373 
 
2948 REPLEVIN. 
 
 3941. For exempt property. In repleTin for property taken 
 in execution, and claimed by plaintiff as exempt, it is not necessary 
 to specifically set out the character of the property in the declara- 
 tion, so as to show the exemption. EUioU o. WMtmore, 5 Mich., 532. 
 
 3943^ Demand. Where one's property is disposed of without 
 authority, by the party having it in charge, the owner may bring re- 
 plevin therefbr without a previous demand, notwithstanding the pro- 
 perty i& in the hands of one who bought in good faith, and without 
 notice of the title of the real owner. . Trudo v. Anderson, 10 Mich., 357. 
 
 3943. One to whom goods have been assigned by way of security, 
 but wUo'has allowed them to remain in possession of the assignor, is not 
 obliged to demand them before bringing replevin against an ofScer who 
 has seized them under an execution against the assignor. Jackson t>. 
 JD«an, 11 Doug., 519. 
 
 3944. Description of property. "A quantity of com con- 
 sisting of about two hundred bushels, and a quantity of lye consisting 
 of about one hundred bushels," held an insufScient description. Steaens 
 II. Osman, 1 Mich., 92. 
 
 3945. Affidavit. Under the Revised Statutes of 1838, it was 
 held, where defendant's christian name was stated incorrectly in the 
 affidavit, that the Court might, after service of the writ and before the 
 execution of the replevin bond, permit the plaintiff to file a new affida- 
 vit, and thereupon to amend the writ by inserting the true name. 
 Pm-ks V. BarMiam, 1 Mich., 95. 
 
 3946. The averments in the affidavit — " that the property was not 
 taken for any assessment levied by virtue of any law of the State," and 
 " that it was not seized under any execution against the goods and 
 chattels of the plaintiff liable to execution " — ^being required by the 
 statute, must be inserted, without regard to the nature of the property 
 replevied. PJienix v. Clark, 2 Mich., 327. 
 
 3947. Defenses : anotlier salt pending. In replevin by 
 one plaintiff against three defendants, plea in abatement was inter- 
 posed of a prior action in replevin, by two of the defendants against the 
 plaintiff and another, by virtue of which the other defendant, as sheriff, 
 took and detained the property. Held, that the issues in the two cases 
 were not identical, as the possessor^ rights of the sheriff imder his 
 writ, if valid, could not be impaired or affected, although the plaintiff 
 in the present suit should show a perfect title, as against the other de- 
 fendants, the plaintiffs in the first siut. Bdden v. Laing, 8 Mich., 600. 
 
 3948. Oencral issue. Under the Revised Statutes of 1838, as 
 amended by Laws of 1839, p. 230, the general issue put in issue every 
 fact stated in the declaration necessary to sustain the plaintiff's action, 
 
 374 
 
REPLEVIN. § 2958 
 
 and not the detention of the property only. LoomU v. Foster, 1 Mich., 
 165. 
 
 3949. Under the present statutes, anything going to show that the 
 plaintiff had no right to the possession when he commenced his suit, is 
 a complete bar to the action. As that the defendant lawfully held the 
 property, as against the plaintiff, by virtue of a prior writ of replevin. 
 Belden v. Laing, 8 Mich., 500. 
 
 3950. The defense that the property was taken under legal pro- 
 ceedings against a third person claimed to be the owner thereof, is 
 admissible under the general issue without notice. Sriook v. Davis, 6 
 Mich., 156. See further, Oraig v. Qrani, 6 Mich., 447. 
 
 3951. Damages. A judgment for more than nominal damages is 
 erroneous, if no evidence of damages was submitted. Phenix v. Clark, 
 2 Mich., 387. 
 
 2953. The plaintiflF cannot recover, as a part of his damages, the 
 value of the services of his attorney and counsel in attending the suit. 
 Hatch V. Hart, 2 Mich., 389. 
 
 3953. Under the statute, Comp. L., § 5033, where either of the par- 
 ties, at the commencement of the suit, has only a lien upon or a special 
 interest in the goods replevied, he can only recover according to his 
 special interest as against the general owner or one who has taken the 
 goods by his direction ; but as against a stranger the full value of the 
 goods may be recovered, although exceeding the lien or special interest, 
 and the plaintiff will be a trustee for the general owner as to the bal- 
 ance. Damdaon v. OunsoV/y, 1 Mich., 388. 
 
 3954. Judgment. Where, in replevin against two, the Court 
 finds that each of the defendants has an independent lien to a specified 
 amount, on the property in controversy, it is erroneous to render a joint 
 judgment in their favor for the value of the property. Sweetzer v. Mea^, 
 5 Mich., 107. 
 
 2953. Where plaintiff recovered judgment before a justice, which 
 was reversed by the Circuit Court on certiorari, and plaintiff in error 
 afterwards moved for an order that a jury be impanelled to assess his 
 damages; it was hdd, that the Circuit Court, under the Statutes of 1838, 
 had no such power ; but that under §§ 170 and 135 of the Justices' Act 
 of 1841, it had power to award a restitution of the property. People v. 
 Judges of Jackson Circuit Court, 1 Doug., 302. 
 
 2956. Executions against the body cannot be issued on judg- 
 ments in replevin. Flitter v. Bowker, 11 Mich., 204. 
 
 2957. Bond. Under the Statutes of 1838 the Court could not 
 compel the plaintiff to file a new replevin bond. Lynch v. Bruce, 2 
 Doug., 123. But see Comp. L., §§ 5030 et seq, for new provisions. 
 
 2938. Suit on bond. Where plaintiff in replevin is nonsuited, 
 
 375 
 
8 2965 SCHOOLS AND SCHOOL DISTRICTS. 
 
 the defendant, if he waive a return of the proper^, is entitled to s 
 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 cannot show, in mitigation of damages, that the defend- 
 ant in replevin was but a part owner of the property. Wt&iama v. V<wSiy 
 
 9 Mich., 163. 
 
 3959. After judgment for the defendant in replevin, an executioD 
 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 sned. It was hdd that this could not be considered an exe- 
 cution on the judgment, and that consequently no liabffity upon the re- 
 plevin bond was created by its return. Ibid. 
 
 2960. A recovery cannot be had on the bond for a sum exceeding 
 the amount of the penalty and costs of suit Prater o. Little, 13 Mich., 
 195. 
 
 RES JUDICATA. 
 
 3961. A decision once made in a case must continue to govern it, 
 notwithstanding the point then decided is not held to be law in other 
 cases. Ifewberry v. Trowbridge, 13 Mich., 263. 
 
 REVISED STATUTES OF 1846. 
 
 3962. The whole body of laws designated as the "Revised Statutes" 
 of 1846 was passed as one act, and must be construed together «s such. 
 Perry v. Sepbume, 4 Mich., 165. 
 
 SCHOOLS AND SCHOOL DISTRICTS. 
 
 3963. Di8trlct8. Under the statute of 1840— Laws 1840, p. 215— 
 empowering the school inspectors of any township " to divide the 
 township into such number of districts, and to regulate and alter the 
 boundaries of said school districts, as may from time to time be neces- 
 sary," they might dissolve one organized district and annex it to another. 
 People V. Davidson, 2 Doug., 121. 
 
 3964. The city of Saginaw was incorporated of territory which con- 
 stituted about one-fourth of School Di^strict No. One of the township of 
 Saginaw. The charter provided for a board of city school inspectors, 
 and it. was hdd, that it had the effect to sever from the school district 
 the territory included in the city, without in any other respect depriv- 
 ing the district of any of its legal rights. Township of Saginaw ». Schodt 
 District No. One of fhe CUy of Saginaw, 9 Mich., 541. 
 
 3965. The city in such case has no remedy to recover its propor- 
 
 376 
 
SET OFF. § 2972 
 
 tion of the school district moneys or other property ; there being no sta- 
 tute providing for such recovery. Ibid. 
 
 2966. Director. The director of a school district is not legally 
 entitled to compensation from the district for his services. Hinman 
 V. School District No. One, 4 Mich., 168. The law is since changed, 
 so as to authorize compensation to be voted by the district. Laws of 
 1859, p. 1047, § 49. 
 
 3967. Consolidation of districts : former debts. Where 
 two districts are united under the statute — Comp. L., § 2335 — the new 
 district is alone liable for all the former debts of each; and a judgment 
 afterwards rendered against one of the former districts is a nullity. 
 Brewer v. Palmer, 13 Mich., 104 
 
 SET OFF, 
 
 3968. Of secured demand. A defendant who holds collateral 
 security for a demand due him, cannot be required to deliver up the se- 
 curities as a condition to his demand being received as a set off. Wal- 
 iace V. Finnegan, 14 Mich. 
 
 3969. Unliquidated damages. Where the plaintiff's demand 
 is for goods which the defendant has agreed to sell and deliver, the dam- 
 ages are unliquidated, and consequently no set off can be allowed under 
 the statute. Smith v. Warner, 14 Mich. 
 
 3970. Demand assigned after salt brought. Where the 
 assignees of a bank brought suit upon a promissory note, but sold it 
 pending the suit, and the suit was afterwards continued for the benefit 
 of the purchaser, it was held that the note was subject to any offset 
 which could have been naade to it in an action by the bank itself. New- 
 berry c. Trowbridge, 13 Mich., 263. 
 
 3971. Set off by one Joint defendant after death of 
 the other. Where one of the defendants dies and the suit is con- 
 tinued against the other, he may set off against the plaintiff's demand 
 a debt due to himself individually. Ibid. 
 
 3972. Election of remedies. One who has given a mort- 
 gage for the purchase price of lands, which were conveyed to him with a 
 covenant against incumbrances, is not confined to his remedy upon the 
 covenant, but may set off the amount of a prior mortgage which he has 
 paid against his own mortgage when suit is brought to foreclose it. 
 Detroit and Milwaukee Railroad Go. v. Origgs, 12 Mich., 45. See also, 
 Disbrow c. Jones, Har. Ch., 102. As to set off in equity generally, see 
 supra, 1218 to 1226. 
 
 377 
 
§ 3979 SLANDER. 
 
 SHERIFF. 
 
 3973. Deputy. A sheriffcannot constitute a deputy for a particu- 
 lar act except by warrant in -writing. People v. Mo&re, 3 Doug., 1. 
 
 3974. The under gheriif may act in his own name, and need 
 not sign a return to a writ made by him in the name of the sheriff 
 OdUendar f>. Olcotf, 1 Mich., 344. 
 
 3975. Oath and bond. The statute which requires of the per- 
 son elected to the office of sheriff, that he shall file the oath and bond of 
 office within twenty days after receiving official notice of his election, 
 or within days after the commencement of the term for which he was 
 elected, only applies to the person declared elected by the board of can- 
 vassers, and not to one to whom the board refuse a certificate. People v. 
 Mayworm, 5 Mich., 146. 
 
 3976. Suit on bond. By statute, the party for whose use a 
 sheriffs bond is sued, is to be deemed the plaintiff in the action. Where 
 one of two persons jointly entitled to prosecute the action died, it was 
 Add that action should be brought in the name of the people for the 
 use of the survivor alone, without joining the administrator of the one 
 deceased. Jackson v. People, 6 Mich., 154. 
 
 3977. Sale witbout notice. The sheriff is not liable to the 
 penalty given by the statute, for selling lands on execution without 
 giving the notice required by law, if the sale be void on account of the 
 unconstitutionality of the law under which it is made. WiUard v. Long- 
 street, 3 Doug., 173. 
 
 397§. Return of proce§8. That, for the purposes of a credi- 
 tor's bill, an execution cannot be legally returned until the return day, 
 see WiUiams v. Hubhwrd, 1 Mich., 446 ; SmUh v. Thompson, Wal. Ch., 1 ; 
 Beach V. White, Wal. Ch., 495. But that, for obtaining a new execution 
 to another county return may be made at any time, see Freeman v. 
 Michigan State Sank, Wal. Ch , 63. If a debtor offers to turn out property 
 upon execution in another county, the creditor must take execution to 
 that county ; and if he files creditor's bill without doing so, a plea set- 
 ting forth the offer will be a bar to the suit. Ibid. 
 
 SLANDER. 
 
 3979. Declaration in slander contained the usual inducement, 
 without the averment of any extrinsic facts or circumstances showing 
 the actionable quality of the words spoken, except that the plaintiff 
 was postmaster at F., and one count charged the defendant with hav- 
 ing spoken and published of and concerning the plaintiff as postmaster, 
 &c., that " he did not think Marlatt's resignation or his petition had 
 378 
 
SCANDEK. g 3986 
 
 gone to Washington ; he had no doubt they were embezzled at P. ;" ad- 
 ding, by innuendo, (" at the post office at F., of which the plaintiff was 
 postmaster, meaning), meaning and intending thereby that the plain- 
 tiff had delayed and prevented the transmission of the said resignation 
 and petition to the Postmaster-General at Washington,'' &c. EM, that 
 the count was fatally defective, the words charged to have been spoken 
 and published appearing not to be actionable. Taylor v. Knedand, 1 
 Doug., 67. 
 
 SOSO. The words would have become actionable had the inducement 
 of the declaration further averred, that the letters or papers referred to 
 were placed in the post office at F., or entrusted to the care of the de- 
 fendant as postmaster at F., or were passed through said post office to 
 their place of destination ; since the embezzlement by defendant of 
 papers which so came into his possession, is made criminal. Ibid. 
 
 29S1. Extrinsic facts or circumstances showing the actionable 
 quality of words, not actionable per se, must be directly averred in the 
 inducement of the declaration. IMd. 
 
 2982. The office of an innuendo is merely to apply the different 
 parts of the charge contained in the words, to the different facts before 
 averred in the inducement. Its truth must always appear from prece- 
 dent averments, and it must be supported by the inducement and collo- 
 quium. Ibid. 
 
 29S3. The omission of any averment, in a count in slander, that the 
 defendant maliciously published the matter alleged, is cured by verdict, 
 though it would be fatal on special demurrer. Ibid. 
 
 2984. Proof of words as laid. A count in slander alleging 
 that the defendant uttered and published that the plaintiff, who was 
 postmaster at F., embezzled certain papers, is not supported by proof 
 that he said he had no doubt that the papers were embezzled at F., or 
 he thought the papers were embezzled at the post office at F. Ibid. 
 
 2985. Malice. Words spoken by defendant after the commence- 
 ment of the suit, are not admissible in evidence to show malice, unless 
 they expressly refer to those which are the subject matter of the action, 
 and do not constitute a distinct calumny for which the plaintiff would 
 have a separate right of action. Ibid. But see T/iampsonv. Boioers,l 
 Doug., 331. 
 
 2986. Notice of defense. To a declaration in slander, alleg- 
 ing that the defendant charged the plaintiff with having sworn falsely, 
 the defendant pleaded the general issue, and gave notice that he would 
 prove on the trial " that the plaintiff was guilty of the facts charged on 
 and imputed to him by the defendant, in the several conversations in 
 the declaration mentioned, and that if the words were uttered and pub- 
 lished as charged in the declaration, the defendant had good reason for 
 
 379 
 
§ 2994 SLANDER. 
 
 ottering and publishing, and did it from good motives and for justifiable 
 ends." Sdd, that the notice was fatally defective, especially ia. omit- 
 ting any averment that the -plaintiS wUfuUi/ andddiberately swore &lsely.. 
 Thompson v. Bowers, 1 Dong., 331. 
 
 29§7. mitigation of damages. Evidence of the truth, or 
 tending to prove the truth of the slanderous words, is inadmissible under 
 the general issue in mitigation of damages. Ibid. 
 
 39§S. So also is evidence that the specific facts in which the slander 
 consisted were communicated to the defendant by third persons. Ibid. 
 
 2989. But the defendant may show under the general issue in miti- 
 gation of damages, that previous to ihe publication of the slanderous 
 words by himself, reports to the same effect were in common circula- 
 tion in the vwinity of the plaintiff' 's residence, and weie communicated 
 to the defendant. Fair v. Baseo, 9 Mich., 353. See Moj/er «. Pine, 4 
 Mich., 409. 
 
 3999. Where the words are actionable in themselves, and general 
 damages only are claimed, the defendant is not entitled to show in miti- 
 gation of damages under the general issue, that, " during the six years 
 prior to the suit, inveterate feelings of hostility had existed between the 
 plaintiff and the defendant, and that the plaintiff had taken every op- 
 portunity to irritate the defendant." Porter v. Henderson, 11 Mich., SOl 
 
 3991. Where the action is for charging plaintiff with perjury, evi- 
 dence cannot be given by defendant, that on an occasion not appearing 
 to have any connection with the matter in controversy, the plaintiff 
 called him a liar and a perjured wretch. lUi. 
 
 3993. Kor, where general damages only are claimed, is evidence 
 admissible in mitigation of damages, that plaintiff has stated the slander 
 did him no damage. Ibid. 
 
 3993. The defendant cannot give evidence under the general issue 
 of a threat by plaintiff " that he would ruin him and drive him out of 
 town ;'' which threat came to the knowledge of the defendant previous 
 to the speaking of the words allegipd to be slanderous. Moyer v. Pine, 4 
 Mich., 409. 
 
 2994. Common reports in circulation, in regard to the plaintiff's 
 being suspected, previous to the speaking of the slanderous words, of 
 having committed the crime imputed to him, cannot be given for the 
 purpose of contradicting the statement in the declaration that he had 
 not been suspected, until the speaking of the words, of being guilty of 
 the offense charged. Ihid. 
 360 
 
SPECIFIC PERFORMANCE S 3001 
 
 SPECIFIC PERFORMANCE. 
 
 3995. Parol coatract partly performed. A Court of 
 equity will enforce the specific performance of a parol contract for the 
 conveyance of lands, where the purchase money or a part thereof has 
 been paid, possession taken under the contract, and valuable improve- 
 ments made. Burtch v. Hogge, Har. Ch., 31 ; Bomier v. OcMweCC, Har. 
 Ch., 65 ; Same com on appeal, 8 Mich., 463 ; Iforris v. Showerman, 3 
 Doug., 16. But the part performance must unequivocally refer to and 
 result from the agreement. McMurtrie v, Bennette, Har. Ch., 124 ; MO- 
 Iwrd V. Bamsdell, Har. Ch., 373. 
 
 3996. Delivery of possession is an act of part performance. Weed v. 
 Terry, Wal. Ch., 501 ; Same ease on appeal, 2 Doug., 344. But the pos- 
 session cannot avail complainant when it is suflBciently explained by the 
 relation of father and son between the parties. Jone» v. Tyler, 6 Mich., 
 364. 
 
 3997. Performance discretionary. Courts of equity do 
 not as a matter of course decree specific performance of contracts, but 
 exercise a discretionary power, upon a view of all the facts in the case ; 
 and this discretion must not be arbitrary and capricious, but regulated 
 on grounds that will render it judicial. MeMwrtrw v. Bennette, 'S&r. 
 Ch., 134. The ground of interference is not thie parol contract, but that 
 there is fraud in refusing the completion of an agreement partly per- 
 formed. Ibid. 
 
 399S. Certainty. The parol contract, in order to be enforced, 
 must be certain in all its essential particulars. McMurtrie v. Bennette, 
 Har. Ch., 134 ; Bomi^ v. CaldweU, 8 Mich., 463 ; MiUard v. Bamadea, 
 Har. Ch., 373. 
 
 3999. It must be proved in the clearest manner, and must be sub- 
 stantially the same set forth in the bill. Where husband and wife filed 
 their bill on behalf of the wife, alleging a parol agreement on the part 
 of the devisor of defendant to convey certain lands to the wife, and ask- 
 ing its specific performance, but from the evidence it appeared that the 
 agreement was to convey to the husband, the bill was dismissed, not- 
 withstanding there was evidence in the case that the husband after- 
 wards directed the conveyance to be made to the wife, and the other 
 party assented to its being so made. Wilson v. Wilson, 6 Mich., 9. 
 
 3000. mutuality. The contract must also be mutual, and the 
 tie reciprocal. McMurtrie v. Bennette, Har. Ch., 134 ; Sawley v. Shddon, 
 Har. Ch., 420. 
 
 3001. Part payment of the purchase price is not, of itself, suf- 
 ficient to warrant a decree for the specific performance of a parol con- 
 tract for the purchase of lands. McMurtrie v. Bennette, Har. Ch., 134. 
 
 881 
 
§ 3010 SPECIFIC PERFORMANCE. 
 
 3002. Inadequacy of price alone, without being so gross and 
 palpable as to prove fraud, is not a good objection to specific perfor- 
 mance. Bv/rtch V. Sogge, Har. Ch., 31. See Hunt v. Thorne, 2 Mich., 
 213. 
 
 3003. But where the price agreed for in the contract greatly differs 
 from the value, it is an ingredient which, associated with others, will 
 contribute to prevent the interference of a Court of equity. WdUace ». 
 P«i£r«, 4Mich., 570. 
 
 300't. Wliat deemed material. Time, place and mode of 
 payment are not considered matters of substance, unless, by express sti- 
 pulation of the parties, they are declared to be so, or unless from the 
 special nature of the case, and the necessary intention and understand- 
 ing between the parties, they must be deemed material. Therefore, 
 though the contract varies in these particulars from that set out in the 
 bill, if it corresponds in other respects the Court may enforce it. Bo- 
 mier v. Caldwell, 8 Mich. ,463. That time is not material, see also, Wal- 
 laee v. Pidge, 4 Mich., 570 ; Morris v. Hoyt, 11 Mich., 9 ; Richmond v. 
 Bobinson, 12 Mich., 193 ; Converse v. Blunmck, 14 Mich. 
 
 3005. tVaiver of laches. Where the owner permitted another 
 person to occupy and improve lands for a number of years, under a ver- 
 bal contract of purchase, and under the impression that he might pay 
 for it when demanded, and the purchaser offered to pay when notified 
 to do so, it was held that there was no such laches imputable to the pur- 
 chaser as should debar him from specific performance. IngersoU v. Sor- 
 ton, 7 Mich., 405. 
 
 3006. A notice served by the owner, in such a case, requiring tl^ 
 purchaser to pay for the land in a specified time, and take a deed there- 
 for, estops him from taking advantage of laches of the purchaser prior 
 to such notice. Ibid. 
 
 3007. The bill must set out the special facts relied upon as show- 
 ing part performance to take the case out of the statute. Bomier v. 
 Caidwdl, 8 Mich., 463. 
 
 3008. ITnauthorized contract. A contract made by a spe- 
 cial agent who has exceeded his authority, will not be enforced. Cham- 
 ierlain v. Dmrragh, Wal. Ch., 149. 
 
 3009. And where the agent acted for his trustee in selling the land, 
 and the bill charged that the contract was made by him as agent for the 
 trustee, it was held that he could not be required to convey his equitable 
 interest as cestui gvs trust, notwithstanding the contract did not on its 
 face disclose the agency. Ibid. 
 
 3010. Compromise agreement. Where the parties claimed 
 the same land under confiicting titles, and made a parol agreement for a 
 division, and each took possession of the part set off to him, a si>ecific 
 
 382 
 
SPECIFIC PERFORMANCE. § 3017 
 
 performance was decreed. Weed v. Terry, Wal. Ch., 501 ; Same cote on 
 appeal, 3 Doug., 344. See also, Sunt v. Thorne, 2 Mich., 213. 
 
 3011. IVife's dourer. In decreeing the specific performance by 
 a husband of his contract to convey, the wife will not be compelled tc 
 unite in his deed and thereby release her dower. Weed v. Terry, ' 
 Doug., 344. But where the husband causes lands to be conveyed to the 
 wife, which he has agreed to convey to complainant, and she was awan 
 of his contract and paid no consideration, specific performance may bt 
 decreed against her, and she is not entitled to dower. DaUy v 
 lAtehfidd, 10 Mich., 29. 
 
 3012. A§§ignee8 of a contract may have it specifically performe( 
 in their favor. Street ». Dow, Har. Ch., 427. 
 
 3013. Illegal contract. A contract of purchase by a bank in 
 violation of its charter will not be enforced in its favor. Bank of Michi- 
 gan V. Wiles, 1 Doug., 401, and "Wal. Ch., 99. 
 
 3014.' Disappointed expectations. A defendant cannot re 
 sist the specific performance of a contract, on a plea that his expecta- 
 tion of aid in money &c. from the other party formed the sole induce 
 ment and consideration to him of entering into the contract, where i: 
 appears that these expectations were merely the operations of hii 
 own mind, and not raised by any promise or suggestion of the othe; 
 party. Sunt v. Thome, 2 Mich., 213. 
 
 3015. Liaches. A party who has enjoyed the use of the estate 
 and of the moneys arising from sales which he had covenanted tt 
 share jointly with another, cannot object the lapse of time where th< 
 complainant filed his bill for specific performance thirteen years aftei 
 his rights accrued — there being no fraud or unfairness imputed to com 
 plainant. Ibid. 
 
 3016. A contract was made for the sale of lands, the payments to be 
 made to a third person who held a mortgage given by the seller. Pay- 
 ment was not made by the day, and the seller declared the contract 
 forfeited. The purchaser subsequently paid the money to the mortga- 
 gee, but without the seller's assent. It appearing that the land contract 
 was designed to provide for the payment of the mortgage, it was 
 held that, when that was done, as it did not concern the seller whether 
 the mortgage was paid one way or another, the contract was to be re- 
 garded as substantially complied with. Richmond v. Bobinaon, 12 Mich., 
 193. 
 
 3017. The title contracted to be conveyed is to be presumed 
 good, and the party denying it, or insisting upon incumbrances as an 
 objection to performance, should put the title or incumbrances in issue 
 by his pleadings ; and the burden of proof will then be upon him to 
 
 388 
 
§ 3026 SPECIFIC PERFORMANCE. 
 
 show defects. BaHy v. LUchjiM, 10 Mich., 29. See also, Dteight v. 
 CvOer, 3 Mich., 566. 
 
 3018. The vendor will not be allowed to forfeit the contract for non- 
 payment, when, not having the title to convey, he is not in position to 
 perform on his own part. Gownerm v. Blumrick, 14 Mich. 
 
 3019. Demand of deed. The failure of the vendee to tender 
 performance and demand a deed before filing his bill only affects the 
 question of costs. Morru v. Hoyt, 11 Mich., 9. 
 
 3030. Complainants notified the other party to the contract for the 
 exchange of lands, to meet them at the office where the contract was 
 drawn, and exchange deeds — that place having been agreed upon for 
 the purpose at the time the contract was entered into. Complainants 
 went to the office at the time specified, executed a deed of the lands 
 to be conveyed by them, and left it there for delivery — the other party 
 not having appeared. They afterwards notified him of what they had 
 done. Hdd equivalent to a tender of their deed, and a sufficient re- 
 quest for a deed from the other party. It is not necessary in such case 
 for the party claiming specific i>erformance to prepare and tender a deed 
 to be executed by the other party. DaUy v. Litchfield, 10 Mich., 29. 
 
 3021. One of the defendants held the land agreed to be conveyed 
 by him, under a, contract of purchase. Instead of taking a deed to lum- 
 self, he had it made to his wife, who had notice of his agreement to 
 convey to complainants, and paid no consideration. Beld, that it was 
 not necessary to demand a deed of the wife before filiT\ g a bill against 
 both for specific performance. Ibid. 
 
 3033. Penalty. The fixing by the contract of a penalty for non- 
 performance, is no objection to specific performance. Ibid. 
 
 3033. Averment of performance. Where a part of the 
 consideration consisted in clearing and fencing, a general allegati6n 
 that the same had been performed, was held sufficient. Ibid. 
 
 3034. Stipulation for Improvements. A stipulation in 
 the contract that the vendee shall " improve the premises," but specify- 
 ing neither the kind nor the extent of the improvements, is so indefinite 
 that the intention of the parties cannot be known ; and on a bill for 
 specific performance it will be treated as immaterial Morris v. Hoyt, 11 
 Mich., 9. 
 
 3035. Taxes. A failure of the vendee to pay taxes as stipulated 
 to the contract, stands upon the same basis, as respects specific per- 
 formance, as a default in the payment of instalments of the purchase 
 money. Ibid. See also, Richmond v. Bobinaon, 13 Mich., 193. 
 
 3036. Stipulation for forfeiture. A provision that on the 
 failure of the vendee to fulfill the agreements on his part at the times 
 specified, the vendor may re-enter and take possession of the land, and 
 
 884 
 
STAMPS. § 3034 
 
 all rights of the vendee under the contract shall be null and void, and 
 all payments and improvements made be forfeited, does not make time 
 so far of the essence of the contract as that all rights of the vendee be- 
 come ipso facto forfeited merely by a failure to pay at the times agreed 
 upon, without any act on the part of the vendor indicating an intention 
 to insist upon the forfeiture. Morris v. Hoyt, 11 Mich., 9. 
 
 3027. Under such a provision, the only mode by which the vendor 
 can forfeit the rights of the vendee, is by re-entering and taking posses- 
 sion of the land, or some act equivalent thereto. lUd. 
 
 303S. A contract which empowers the vendor, on default being 
 made in payment, to terminate it, is not forfeited by mere lapse of time 
 until the vendor has signified his election to put an end to it. Until 
 such election, the vendee is liable for the purchase money, and entitled 
 to specific performance on making payment. Converse v. Blumrick, 14 
 Mich. 
 
 3029. Interest. "Where the vendee seeks specific performance 
 after default in paying instalments of principal and interest, he will be 
 required to pay interest on the instalments of interest from the time 
 they fell due. Morris v. Hoyt, 11 Mich., 9. 
 
 3030. Parties. Where land contracted to be conveyed is deeded 
 away to a third person, both the party to the contract and the person 
 to whom the land has been conveyed, should be made parties to the bill. 
 Daily «. Litchjidd, 10 Mich., 39 ; Morris v. Hoyt, 11 Mich., 9. 
 
 3031. Where the vendee has deceased, his heir at law, and not hi» 
 personal representative, is the proper person to file the bill, nouae v. 
 Dexter, 9 Mich., 246. 
 
 3032. Decree for account. If specific performance is denied, 
 the Court may retain the bill for the purpose of adjusting the accounts 
 between the parties. Hamley v. Sheldon, Har. Ch., 420. 
 
 STAMPS, 
 
 3033. A person being the holder of a draft drawn in August, 1863, 
 made a gift rf it causa mortis to her mother, and after her death, her 
 administrator, treating the draft as void for want of a sufficient stamp, 
 brought suit against the drawer upon the original consideration. The 
 drawer, defending in the interest of the donee, produced the draft on 
 the trial, and placed the requisite stamp upon it, in pursuance of the act 
 of Congress of June 30, 1864. It was held that the draft was thereby 
 made valid from its inception, rendering the gift valid, and defeating 
 the plaintiff 's right of recovery. Oibson v. Eibbard, 13 Mich., 314 
 
 3034. Where the grantee in a deed seeks to recover in ejectment 
 under it, it is competent for the defendant, although no party to the 
 
 25 885 
 
STATE OF MICHIGAN. 
 
 deed, to show that a third person caused it to be made to the grantee 
 ■without consideration ; as in such a case the stamps required would de- 
 pend upon the value of the land. Oroesbeck v. Sedey, 13 Mich., 339. 
 
 STARE DECISIS. 
 
 3035. Where an erroneous principle has been established by the 
 judicial decisions of the State, and individuals acting upon it as settled 
 law have acquired rights under it, the Court should hesitate long before 
 overruling it ; it being better and safer to leave the Legislature to cor- 
 rect the error, as in that case all intervening rights would be saved, and 
 injustice done to no one. EmeTson v. Atwater, 7 Mich., 12. 
 
 3036. But the Court will not follow as precedents adjudications out- 
 side the State — except the adjudications of the Federal Courts on ques- 
 tions arising under the constitution and laws of the Federal Govern- 
 ment — any further than they appear to the Court to be warranted by 
 the fundamental principles of the common law. CaMmCL v. Gale, 11 
 Mich., 77. 
 
 STATE OP MICHIGAN. 
 
 3037. The State of Michigan came into existence, and possessed the 
 power of independent State legislation, on the adoption and ratification, 
 by the people of the territory, of the constitution of the State, and the 
 organization of the State government, notwithstanding the State was 
 not admitted into the Union for some time afterwards. Scott n. Detroit 
 Toung Men's Society, 1 Doug., 119. ' 
 
 303S. Suits against. A State cannot be sued in its own Courts, 
 [there being at the time ho statute providing therefor]. Michigan State 
 Bank v. Hastings, Wal. Ch., 9. But this rule only applies where the 
 State itself is a party defendant, and not where it is sought to reach 
 property in the hands of the State officers, in which the State has 
 ceased to have any legal interest. Michigan State Bank v. Hammond, 1 
 Doug., 527. 
 
 3039. The Michigan State Bank conveyed to the State certain pTO- 
 perty on condition subsequent [see Conditions, 661 to 568] that the 
 State should indemnify and save harmless the bank against certain ha- 
 bilities. By act of the legislature, the Auditor General, State Treasurer 
 arid Secretary of State were made trustees, on behalf of the State, to 
 take charge of the property assigned, and dispose of it, and pay the pro- 
 ceeds into the State treasury. Afterwards the State refused to indem- 
 nify the bank, and a judgment was recovered on one of the liabilities 
 Which the bank was compelled to pay. On bill filed by the bank 
 
STATE LANDS. § 304« 
 
 against the State officers to obtain relief from the property in their 
 hands, against the failure of the State to indemnify, it was held, that 
 the State having failed to perform the condition, the property had re- 
 verted to the bank, and that the possession thereof by the deefendants 
 had ceased to be the possession of the State, and that equity had juris- 
 diction to compel the defendants to account as trustees of the bank, and 
 pay any damages the bank had suffered by reason of the failure to in- 
 ) deamify. Michigan State Bwnh o. Hammond, 1 Doug., 527. 
 
 3040. It seems, that as to any money actually received as pro- 
 ceeds of the property by the State Treasurer, he could not be compelled 
 ;to account, since money paid into the State Treasury must be regarded 
 as in possession of the State. Ibid. 
 
 3041. But the bank would only be entitled to the relief prayed on 
 waiving any forfeiture for breach of the condition, and on delivering 
 over to the State a portion of the property which they had neglected 
 and refused to deliver according to the original agreement. Ibid. 
 
 3043. maxims of equity. See this ease for a recognition of 
 the maxims, that he who asks equity must do equity ; and that equity, 
 while it will lend its aid to relieve against penalties and conditions, 
 cannot be evoked to enforce them. 
 
 STATE LANDS. 
 
 3043. Sale of Scliool Lands. A certificate ctf the sale of 
 
 primary school lands, signed by a clerk in the office of the Superinten- 
 tent of Public Instruction, was held not well executed under the laws 
 in force in 1841, though he added after his name " for J. D. P., Superin- 
 tendent of Public Instruction." Lee v. Payne, 4 Mich., 106. 
 
 3044. S-wamp lands. The ninth section of the act for the sale 
 of the State Swamp Lands, (.Laws of 1858, p. 173) made provisions for 
 two distinct classes of purchasers, namely : settlers and occupants of 
 such lands at the time of the passage of such act, who should have been 
 such December 1, 1857, and owners and occupants of adjoining lands 
 who were such December 1, 1857. Peoph v. State Treasurer, 7 Mich., 366. 
 
 3045. Occupancy of the adjoining lands, under this act, might con- 
 sist of cultivation apd use, without actual residence, or jjiight be by a 
 tenant. Ibid. 
 
 3046. Though this act might make void any certificate of purchase 
 issued through mistake, fraud, &c., it did not confer upon the Conmiis- 
 sioner of the State Land Office _power to adjudge void and cancel such 
 certificate ; and he could not resell the land unless the certificate was 
 voluntarily returned, or adjudged void by<the proper Court. Ibid. 
 
 387 
 
§ 3054 STATUTES. 
 
 STATE PRISON. 
 
 3047. The constitution prorides that "Ko mechanical trade shall 
 hereafter be taught to convicts in the State prison, in this State, except 
 the making of those articles of which the chief supply for the con- 
 sumption of the country is imported from other States or countries." 
 What trades are within the spirit of this provii^on, it is for the agent of 
 the State prison to determine, and the Supreme Court cannot control 
 him in this regard. PeopU v. Inspectors of State Prison, 4 Mich., 187. 
 
 STATUTES. 
 
 3048. Oeneral rules of constractfon. Where one part 
 of an act is equivocal, other portions may be resorted to as guides. The 
 occasion and the reason of the enactment ; the letter of the act, whether 
 words be used in their proper or in a technical sense ; the context, the 
 spirit of the act, and whether in its nature remedial or penal, are all to 
 be considered ; and the intent is not to be collected from any particular 
 expression, but from a general view of the whole act. Attorney OenercU 
 % Bank of Miehigan, Har. Ch., 315 ; SiMey v. Smith, 2 Mich., 486. 
 
 3049. The intention is to be taken, or presumed, according, to what 
 is consonant to reason and good discretion. Sibley v. Smith, 2 Mich., 486. 
 
 3050. Effect is to be given, if possible, to every clause and sentence ; 
 and it is the duty of Courts, so for as practicable, to reconcile the dififer- 
 ent provisions of a statute so as to make the whole of it consistent and 
 harmonious ; and where this is impossible, to give effect to the manifest 
 intent of the legislature. Attorney Oenerai v. Detroit and Erin Plank 
 Road Gompanyy,2 Mich., 188 ; People v. Bv,ms, 5 Mich., 114. 
 
 3051. The intent of the le^slature must be gathered from the lan- 
 guage used to express that intent : and where the language is clear and 
 explicit, and sus(|<;ptible of but one meaning, and there is nothing in- 
 congruous in the act, the Court is bound to suppose the legislature 
 intended what the language imports. Barstoie v. Bnith, Wal. Ch., 394 ; 
 BidweH v. Whittaker, 1 Jfich., 469. 
 
 3053. The application of particular provisions is not to be extended 
 beyond the general scope and object of the statute, unless such exten- 
 sion was obviously designed. MaUer of the Tichtuyr Estate, 13 Mich., 44. 
 
 3053. Directory and mandatory. The statute requiring 
 that when a defendant arraigned in the County Court requested to be 
 tried before the Circuit Judge, such Judge should, on the first day of the 
 next term, assign a day for the trial, was, as to time, directory only. 
 People v. Doe, 1 Mich., 451. 
 
 3054. An order made by the County Judge, under Laws of 1848, p. 
 
 388 
 
STATUTES. § 3063 
 
 337, for summoning a jury to try a cause before the Circuit Judge, more 
 than three days before the day assigned for the trial, was held sufficient 
 IMd. 
 
 3055. The statute requiring non-resident plaintiffs to give security 
 for costs before process shall issue in their favor, was held directory, 
 and security allovced to be given nunc pro tunc at any time before a 
 motion to set aside process for want of it was granted. Parks «. OooA- 
 toin, 1 Doug., 56. 
 
 3056. The statute requiring a justice of the peace to keep a docket, 
 and to enter therein the judgments rendered by him, is directory only, 
 and the entry when made is not the judgment itself, but only the evi- 
 dence of it Bickey v. Hinsdale, 8 Mich., 267. 
 
 3057. So is the statute directory {Oomp. L., § 8436) which requires 
 the Circuit Judge who tries a case without a jury to give his decision 
 on or before the first day of the term succeeding that in which the 
 cause was submitted. BmMon v. Parsons, 6 Mich., 401. 
 
 305S. Statutes for the assessment and collection of taxes, as to what 
 they require to be done for the protection of the tax payer, are manda- 
 tory, and cannot be regarded as directory merely. Clark v. Crane, 5 
 Mich., 151. See Stbley v. Smith, 2 Mich., 486. 
 
 3059. Changing common lair. Statutes in derogation of 
 the common law mm to be construed strictly. /Sibley v. Smith, 2 Mich., 
 486. This rule ap^ed to the act authorizing proceedings against gar- 
 nishees. Maynarda v. CornweU, 3 Mich., 309. And to the constitutioi)a,l 
 provision relative to the property of married women. Brown o, FifiM, 
 4 Mich., 822. 
 
 3060. The statute dividing murder into degrees does not change 
 the common law definition of murder ; and under an indictment in the 
 common law form, the defendant may be found guilty of murder in the 
 second degree. People o. Doe, 1 Mich., 451. See People v. Potter, 5 
 Mich., 1 ; People v. Scott, 6 Mich., 287. 
 
 3061. Giving a new right. Where a statute gives a new right, 
 and prescribes a particular remedy, the party is confined to that remedy. 
 Thurston «. Prentiss, 1 Mich., 193; Craig v. Butler, 9 Mich., 21. 
 
 3062. Curing defects. On the change from the territorial to 
 the State government, the legislature of the State abolished the Su- 
 preme Court of the territory, and transferred certain causes pending 
 therein to the Supreme Court and Court of Chancery of the State ; but 
 owing to a defect in the law, certain other causes were not transferred 
 to any Court. Held, that it was competent for the legislature, in the 
 following year, to pass an act transferring these cases to the Supreme 
 Court of the State. Scott v. Smart's Executors, 1 Mich., 295. 
 
 3063. Error in printing. Where there is a discrepancy be- 
 
 389 
 
§ 3071 STATUTES. 
 
 fween an original law on file, and the printed" copy thereof, the original 
 must prevaU. Sulburt v. Merriam, 3 Mich., 144. 
 
 3064. WTien to take effect. A law was passed February 4, 
 1859, providing for an election " at the annual township election to be 
 held in April next." The law, under the constitution, did not take 
 effect until May 10, 1859. HM, by two of the Justices, that to give the 
 law any force, it must be held to apply to' the next annual election after 
 the date last mentioned. Rice v. BvMvman, 10 Mich., 125. 
 
 3065. A statute passed to take effect at a future day is to be under- 
 stood as speaking from the time it goes into operation, and not from the 
 time of its passage. The intervening period is allowed to enable the pub- 
 lic to become acquainted with its provisfons ; butmitil it becomes ope- 
 rative as a law, they cannot Be compelled to govern their actions by it. 
 Price V. SopMn, 18 Mich., 318. 
 
 3066. Where, therefore, by the law as it stoud on the 3l8{ day of 
 December, 1863, a person had sixteen years in which to bring suit for 
 the recovery of a parcel of land claimed by her, and act No. 237 of 
 1863, (S. L., p. 388) if applied to the case, would have the efiect to cut 
 off all remedy the moment it became operative, it was held not to ap- 
 ply to such case. Ibid. 
 
 3067. Effect of repeal. Where an act appropriated highway 
 taxes collected in a certain town, among otheraipb a special purpose, 
 and appointed commissioners to disburse the same, but before the taxes 
 Bad Been paid over, though after legal proceedings had been commenced 
 by the commissioners to compel payment, the act was amended by strik- 
 ing out all that related to such town, and the amendatory act contained 
 no saving clause ; it was held, that the right, under the original act, to 
 the moneys collected in such town, was thereby terminated. Tivej/ v. 
 Peopfo, SMicB.,128. 
 
 306§. A penal' statute being repealed without a saving clause of 
 penalties which had accrued under it, such penalties cannot afterwards 
 be recovered. Wngle v, Shurtz, 1 Mich., 150. 
 
 3069. Where a statute contains unconstitutional provisions, and 
 then a clause repealing all acts and parts of acts inconsistent therewith, 
 the repealing clause has no effect upon prior statutes inconsistent with 
 the unconstitutional provisions, but leaves them still in force. Campau 
 ». City of Detroit, 14 Mich. 
 
 3070. The repeal of a law giving a Court power to ficense adminis- 
 trators to sell real estate, after the license has been granted, birt before 
 a sale has been made, is a revocation of the license. Campau v. CfiUett, 
 1 Mich., 416. 
 
 3071. Saving clause. The Statutes of 1833 (p. 395) authorized 
 the renewal of a justice's execution returned unsatisfied. The Justices' 
 
TAXATION AND TAX SALES. § 3076 
 
 Act of 1841 did not authorize such renewals, hut repealed the former 
 law, with this proviso : " The repeal shall not affect any act done, or 
 any right accruing or accrued, or established, or any suit or proceeding 
 commenced, in any civil case," &c Held, that an execution issued 
 before the repeal could not be renewed afterwards. Jackson e. Shddon, 
 2 Doug., 154. 
 
 3072. Where a statute giving one remedy is repealed, and a new 
 remedy provided, with a saving of rights accrued, the saving clause will 
 not authorize the institution of suits under the repealed statutes where 
 the cause of action accrued before. Bobinson v. Steamboat Bed Jacket, 1 
 Mich., 171. 
 
 3073. ReviTor by implication. The Detroit Police Act 
 having provided that, on the appointment by the Police Board of a 
 superintendent of police, or captain of police, the office of city marshal 
 should be abolished, a subsequent legislative act, passed before any such 
 appointment of superintendent or captain of police had been made, 
 changing the number of jurors " to be summoned by the marshal," in 
 proceedings in opening, closing or altering streets, could not have the 
 effect to prevent the office of marshal being abolished by the appoint- 
 ment under the police act. People v. Mahaney, 13 Mich., 481. 
 
 3074. Special acts affecting general statutes. That 
 an act fixing a shorter time of notice for special township meetings for 
 a particular purpose, supersedes, quoad hoc, the genera,l statute on the 
 subject, see MiUer v. Qrandy, 13 Mich., 540. 
 
 SUPERINTENDENTS OF THE POOR. 
 
 3075. When application is made by a pauper to a county superin- 
 tendent of the poor, under § 1439 Comp. Laws, the superintendent 
 has full power to provide such temporary relief as he may deem 
 proper, without any of the restrictions or qualifications imposed upon 
 directors of the poor on similar applications, by §§1443 and 1444. And 
 in granting temporary relief, and in determining who are proper sub- 
 jects for temporary and permanent relief, a single member possesses 
 the whole power of the board Hewitt ». Superintendents of the Poor, 
 5 Mich., 166. 
 
 TAXATION AND TAX SALES. 
 
 3076. Oath of assessors. The absence of any record in the 
 town books showing that the assessors wpre sworn, does not furnish 
 prima facie evidence that they were not sworn. SMey v. Smith, 3 Mich., 
 486. 
 
 391 
 
§ 3083 TAXATION AND TAX SALES. 
 
 3077. Signing tiie roll. An assessment roll not signed by the 
 assessors held void under the Statutes of 1838 as amended in 1839, 1840 
 and 1841. The defect is not cared by the assessors signing the certifi- 
 cate attached to the roll. Ibid. But under the law of 1842 the signa- 
 tures to the certificate were suflBcient. Laeey t. Davis 4 Mich., 140. 
 
 3078. Certificate to roil. A certificate of the assessors which 
 states that they have estimated the real estate " at a sum which, for the 
 purpotes of assessment, we believe to be the true value thereof, " instead 
 of " at what we believe to be the true cash value thereof" as required 
 by law, is fatally defective. Clark v. Crane, 5 Mich., 151. 
 
 3079. l,evy of tax. Under the Statutes of 1838 the township 
 board had authority, independent of any vote of the electors, to raise 
 money for the purpose of paying the claims audited and allowed 
 against the township. Wisner v. Davenport, 5 Mich., 501. See post, 
 3161. 
 
 3080. Description of lands. The description of lands asses- 
 sessed, or sold for taxes, by the use of initial letters, abbreviations and 
 figures, is sufllcient. Sibley v. Smith, 2 Mich., 486 ; Comp. L., § 804. 
 
 3081. Ejectment. The plaintiflF gave in evidence tax deeds which 
 described the land as " the west half of the southwest fractional quar- 
 ter of section twenty-eight," &c., containing fifty acres, more or less. It 
 appeared tha^ the southwest fractional quarter was not subdivided by 
 Government, that it contained one hundred acres, was 'of an irregular 
 shape, somewhat resembling a triangle, and was patented as one parcel 
 Held, that under the statutes — which requires that where the tract is 
 less or other than a Government subdivision, it shall be described for 
 assessment by a designation of the number of the lot or tract, or of other 
 lands by which it is bounded — the description contained in the deeds 
 was |not suflScient for the purposes of assessment. Aniberg v. Sogers, 9 
 Mich., 332. 
 
 308S. But held, also, that the description was suflScient for the pur- 
 poses of a sale for taxes. As the statutes authorize the payment of the 
 tax on any portion of a description which the tax payer will clearly de- 
 fine, and a sale of the remainder, or a redemption of any such portion 
 after sale, and as it also makes the tax deed evidence of the regularity of 
 all the proceedings, and of title in the grantee, it must be presumed that 
 the whole fractional quarter was assessed together, and the tax paid on 
 the east half before sale, or that after sale the east half was redeemed. 
 Ibid. 
 
 3083. The description of the land as in " town seven of range 
 seven" instead of town seven north of range seven west, is sufficient 
 where the names of the township and county are given, and there is only 
 392 
 
TAXATION AND TAX SALES. § 3083 
 
 one town seven of range seven in that township. WrigJU v. Dunham 
 
 13 Mich., 414. 
 
 30§3a. The following description in a tax roll was held void : 
 
 " Young Men's Society. Gov. and J. P. 
 
 Jeff. Av. N. 45 feet. "W. pt. lot 11, sec. 1, I t, o " 
 and E. pt. lot 10, sec. 1. ) 
 
 Detroit Young Men's Society v. Mayor, die., of Detroit, 3 Mich., 173. 
 
 30S4. Exemptions. The exemption from taxation of " the reftl 
 estate belonging to library, benevolent, charitable and scientific institu- 
 tions, actually occupied by them for the purposes for which they 
 were incorporated," exempts only such distinct tenements as are actually 
 occupied by such institutions for the purposes of their creation, and not 
 tenements, though under the same roof, which are used for other pur- 
 poses. TMd. 
 
 3085. The proper mode of assessing such property is to exclude that 
 which is exempt in the estimate of the value of the whole estate ; and 
 the tax levied thereon will be laid only upon the value of that which is 
 not exempt, though the description of the property embraces the whole. 
 Ibid. 
 
 3086. Certain real estate was deeded to a church in fee, " to the end 
 that they might, from time to time as they should deem necessary, erect 
 thereon any buildings or improvements, suitable for ecclesiastical, liter- 
 ary or benevolent purposes, " and was leased to the Sisters of Charity 
 for thirty years, at a nominal rent, for charitable purposes, and was ac- 
 tually occupied for such purposes. Whether the premises, while held 
 and occupied under this lease, are exempt tconx taxation under the sta- 
 tute as " real estate belonging " to the Sisters of Charity, guere; the 
 Court being divided. Sisters ofClumty v. City of Detroit, 9 Mich., 94. 
 
 3087. The compact under which Michigan was admitted into the 
 Union exempts from taxation certain military bounty lands, while they 
 continue to be held by the patentees and their heirs, " for the term of 
 three years from and after the date of the patents therefor." This lan- 
 guage being dear and unambiguous, must be applied precisely accord- 
 ing to its tenor, and cannot be held to mean three years from the toca- 
 tioTi of the land. People v. Auditor- Oenerd, 9 Mich., 134. 
 
 3088. Where lands thus exempt have been taxed, the Auditor-6en- 
 ral njay reject the taxes on his own motion, and he may be compelled 
 to do so on the application of the owner. Ibid. 
 
 3089. Record of supervisors. The record of the Board of 
 Supervisors did not show who constituted the board, nor that a quorum 
 was present, and there was no signature or authentication by the clerk 
 or presiding oflScer. Seld, that the presence of a quorum must be pre- 
 sumed ; and that although it was proper and desirable that the record 
 should be signed, it was not necessary, Lacey v. Davis, 4 Mich., 140. 
 
 393 
 
§ 3101 TAXATION AND TAX SALES. 
 
 3090. Excessive tax. The supervisor having, without authority 
 of law, added a certain amount to the tax roll for township expenses, 
 and that portion of the tax being void, and, from the nature of the case, 
 not distinguishable from the valid part, a sale of premises made for 
 such taxes was held void. Tbid. 
 
 3091. The mere allowance of illegal demands by the Board of Su- 
 pervisors the year preceding the levy of a tax, is not sufficient to show 
 that illegal taxes were levied, when there is no evidence to show that 
 the amounts were included in the tax levy, or that there was not money 
 enough on hand to pay them at the time of their allowance. Wri^TU v. 
 Dunham, 13 Mich., 414. 
 
 3092. Re-assessment. The Board of Supervisors having au- 
 thority to re-assess taxes for errors, a re-assessment made by them will 
 be held good until some error therein is shown. Tweed v. JUetealf, 
 4 Mich., 579. 
 
 3093. Reducing assessments. It is competent for the Board 
 of Supervisors to reduce the aggregate of the assessments below that of 
 the assessors. Ibid. 
 
 3094. Erroneous footings. The fact that the assessment of 
 the township was stated at one sum on the roll, and at another in the 
 tabular statement of the supervisors, is not material. Ibid. 
 
 3093. Tax roll. The certiflcates of assessors and the chairman of 
 the Board of Supervisors, need not be copied as a part of the tax roll. 
 Ibid. 
 
 3096. "Warrant. The supervisor's warrant attached to the tax 
 roll is not void because not running " in the name of the People of the 
 State of Michigan." Tweed v. Metcalf, 4 Mich., 579 ; Wisner v. Daven- 
 port, 5 Mich., 501. 
 
 3097. Collection. Where lands are assessed as non-resident 
 the collector has no power to levy upon any property for the tax. Tweed 
 «. Metcalf, 4 Mich., 579. 
 
 3095. A penalty of ten per cent, added to taxes remaining unpaid 
 up to a certain period, is not excessive, and may be lawfully imposed by 
 statute. Lacey v. Davis, 4 Mich., 140. 
 
 3099. The statement of the collector under oath, of the moneys re- 
 ceived by him as collector — ^being required for the purpose of securing 
 an accurate accounting by him, and having no connection with the re- 
 turn of lands for delinquent taxes — the failure to make it will not in- 
 validate a tax sale. Tweed v. Metcalf, 4 Mich., 579. 
 , 3100. The collector has no right to receive in payment of taxes the 
 draft of his creditor upon himself. Elliott v. Miller, 8 Mich., 133. 
 
 3101. STotice of sale. Under the Revised Statutes of 1846, it 
 was not necessary that the Auditor-General should specify in his notice 
 394 
 
TAXATION AND TAX" SAEE8. §: 3111 
 
 of tax sales tHe particular place at the county seat where the sales would 
 take place. A notice which stated that the sale would take place at 
 such public and convenient place as the county treasurer should select 
 at the county seat, was sufficient, dark v. Mowy&r, 5 Mich., 463 ; Wis- 
 wer V. Davenport, 5 Mich., 501. 
 
 3102. And a notice by the county treasurer of the place where the 
 tax sales would be made, posted at the court house, county treasurer's 
 office, and other public places at the county seat, a week before the day 
 of sale, was a reasonable and sufficient notice by him if any was requir- 
 ed. lUd. 
 
 3103. Sales. Where under the statute the tax sales were to com - 
 mence on the first Monday of October, and to continue from day to day, 
 &c., and the tax deed recited a sale made on the deoenth of October, it 
 was held incumbent on the party disputing the validity of the deed to 
 show a non-compliance with the statute. Lacey v. Dams, 4 Mich., 140. 
 
 3104. There is no limitation by statute of the amount of land that 
 maybe sold from. any parcel for the taxes assessed thereon. Sibley v. 
 Smith, 3 Mich., 486. And where the whole is sold, nq presumption of 
 fraud can arise from that fact. Tweed v. Metccdf, 4 Mich., 579. 
 
 3105. Lands might be sold for delinquent school taxes under the 
 school law of 1843. Ibid. 
 
 3106. A tenant in common can acquire no title to the interest of his 
 co-tenant, by bidding in the lands at a sale of the whole for delinquent 
 taxes. Page v. Webster, 8 Mich., 363. Even though not in possession. 
 ButUr V. Porter, 18 Mich., 393. 
 
 3107. One who has taken possession of lands claiming title, after 
 taxes have become a lien thereon, can acquire no additional interest by 
 suffering the lands to be sold for such taxes and becoming the purchaser. 
 Lacey v. Davis, 4 Mich., 140 ; TSoeed «. Meicaif, 4 Mich., 579. 
 
 310S. But a tax purchaser, before the time of redemption under 
 his purchase has expired, may bid upon the same lands at a tax sale, 
 and have the benefit of the bid. Tweed v. Metcalf, 4 Mich., 579. 
 
 3109. Whether a tax sale of a town lot, as such, is valid where the 
 town plat has never been recorded, guere, Johnstone v. Scott, 11 Mich., 
 233. 
 
 3110. A sale made after the tax has been paid is void. Bowland v. 
 Doty,UB,r. Ch., 3 ; Johnstone v. Scott, 11 Mich., 333. 
 
 3111. Sale of undivided interest. In a contest between one 
 claiming an undivided interest in lands by original title, and a pur- 
 chaser of an undivided interest in the same premises at a tax sale, the 
 burden is upon the latter to show that the interest purchased by him is 
 the same as, or includes, the interest claimed by the former. Bniler ». 
 Porter, 13 Mich., 393. 
 
 395 
 
§ 3119 TAXATION AND TAX SALES. 
 
 3113. Deed. The Auditor-General cannot convey lands sold for 
 taxes, without authority by statute therefor. But by the Laws of 1843, 
 in connection with the preceding statutes in foice, such authority was 
 conferred. SiUey v. Smith, 2 Mich., 486. 
 
 3113. Under the Codes of 1827 and 1838, the county treasurer's deed 
 of lands scrld for taxes, was evidence only that the sale made by him was 
 regular. The party claiming under the deed must show the regularity 
 of the prior proceedings. BoviXand r. Doty, Har. Ch., 3 ; Scott «. De- 
 troit Young Men's Society, 1 Doug., 119 ; Latimer v. Lovett, 2 Doug., 
 204 ; Ives «. KimbaU, 1 Mich., 308. 
 
 3114. Sec 65 ofthe act of 1843— Laws, 1843, p. 80— which declares 
 that " the deed shall be prima facie evidence of the regularity of all the 
 proceedings to the date of the deed," changes this rule, and tlnows the 
 burden of proof upon the other party. SH^y v. Smith, 2 Mieh,fc4S6. See 
 Amberg v. Sogers, 9 Mich., 332 ; Oroesbeck v. Sedey, 13 Mich., 329 ; 
 Wright V. Dunham, 13 Mich., 414. 
 
 3115. To obviate the effect of the statute making the deed prima 
 facie evidence ofthe regularity of all proceedings, the party objecting 
 should produce such evidence as will exclude reasonable presumption 
 of regularity. It should be such evidence of irregularity, not pertaining 
 to mere directory requirements, as to require explanation. Some spe- 
 cific defect, the insufficiency of some particular act, or the non-perform- 
 ance of some requisite duty, should be shown. Lacey v. Dams, 4 Mich., 
 140. 
 
 3116. It is not sufficient to prove facts from which an inference of 
 irregularity might be drawn, if such facts are consistent with the exist- 
 ence of others which would make the proceedings regular. Wright v. 
 Dunham, 13 Mich., 414. 
 
 3117. Where, to sho-wthat a tax was erroneously assessed upon a 
 part instead of the whole of a parcel of land, the collector's return was 
 put in evidence which showed a tax against a part of the land only, but 
 it was consistent with this return that a tax might have been correctly 
 levied upon the whole, and a part of the land then cleared of the tax by 
 payment before the return, it was held tliat the Court, in support of the 
 deed, must presume such payment. lUi. 
 
 311§. The tax deed need not recite the proceedings prior to the sale. 
 The recitals need not show more than the capacity in wliich the officer 
 acts. Sibley v. Smith, 2 Mich., 486. 
 
 3119. Andltor-General w^itholdtng deed. The act of 
 
 1843 (8. L., p. 81) authorizing the Auditor-General in certain cases to 
 
 forbear to sell, or to withhold a conveyance of lands sold, conferred upon 
 
 him judicial powers, into the proper exercise of which the Supreme 
 
 896 
 
TAXATION AND TAX SALES. § 3139 
 
 Court could not inquire on motion for mandamus. Peo]^ D. Auditor- 
 Cfeneral, 3 Mich., 427. 
 
 3120. Right to 8urplu§ inoaey§. One wlio had bouglit lands 
 at a tax sale, but bad not yet become entitled to a deed when it was sold 
 for another year's tax, was not the owner, within the meaning of the 
 Statutes of 1838, so as to be entitled to a surplus recelTed on the last sale, 
 even though such surplus was deposited ,in the State treasury, and re- 
 mained there until he had obtained his deed. People v. Hammondy 1 
 Doug., 276. 
 
 3131. Specific taxes. The statute of Wm—Camp. £., § gea— 
 is a standing appropriation of one-half the specific taxes collected from 
 mining companies, to the counties respectively. People v. Auditor- Gene- 
 ral, 9 Mich., 141. 
 
 312.2. A railroad company incorporated before the Revision of 1846, 
 whose charter was silent on the subject of taxation, was liable to pay 
 the specific tax imposed by B. 8., Ch. 21, §5. People v. Detroit and Pan- 
 tiac BaUroad Co., 1 Mich., 458. 
 
 3123. A88essment§ for improTcmeiits in citie§. An as- 
 sessment upon a city lot for the expense of paving the street, is not in- 
 valid from the paving having been contracted for before the assessment 
 was made. ZeFevre v. Mayor, &e., of Detroit, 3 Mich., 586. 
 
 3124. The exemption from taxation of houses of public worship, 
 &c., does not extend to assessments for the expenses of paving streets, 
 &c., imposed upon the owners or occupants of lots. Ilnd. 
 
 3125. An assessment upon " St. Peters and St. Paul's Cathedral," 
 the roll neither describing the lots nor naming the owners or occupants, 
 was held void under the charter and ordinances of Detroit. I^. 
 
 3126. The several ordinances established by the Common Council of 
 Detroit, prescribing the several steps to be taken to perfect assessments 
 and enforce their collection, are binding upon the Common Council and 
 its officers, as well as upon individuals. When the provisions of those 
 ordinances afiecting the substantial rights of individuals are not com- 
 plied with, the Common Council have no authority to cure the irregu- 
 larity by resolution. WSliams v. Mayor &c., of Detroit, 2 Mich., 560. 
 
 3127. The determination by the Common Council of Detroit to pave 
 a street with stone, is sufficiently declared by an order directing a con- 
 tract for the work to be made. lUd. 
 
 3128. Under an authority in the charter to provide funds for the 
 construction of pavements, the contracts for pavement may be made to 
 include grading, curb stones, gutters and cross walks. Ibid. 
 
 3129. The Common Council of Detroit were not required by the 
 act of April 13, 1841 (8. L., p. 192), to permit persons to pave the street 
 in front of the lots owned or occupied by them, but were merely au- 
 
 897 
 
I 3139 TAXATION AKD TAX SALES. 
 
 tJwrized so to do when they should deem it for the interest of the city. 
 And the city ordinances contemplated the paving by lot owners or occu- 
 pants only in case of special permission to do so from the Council. 
 Ibid. 
 
 3130. Notice of making the assessment was not required to be given 
 personally, but was sufficient if ptfBlished in a city paper as required by 
 the ordinances. Ibid. 
 
 3131. Under the Detroit city charter, as in force in 1852, the warrant 
 issued for the collection of a street assessment might lawfully authorize 
 the marshal to collect five per cent, in addition for his fees. Ibid. 
 
 3132. It was not material that the aseessment roll did not distin- 
 guish those who were residents from those who were not ; as no rights 
 were thereby affected. Ibid. 
 
 3133. The authority to pave streets in a city is a continuing power, 
 and does not cease on being once exercised. I bid. 
 
 3134. The omission to appoint an officer to superintend the paving 
 of a street in Detroit, as provided by the city ordinances, would not in- 
 validate an assessment for the paving, when the paving was done under 
 a contract which the Common Council had a right to make. Ibid. 
 
 3135. Action ai^ainst sapervisor. When a supervisor is sued 
 in trespass for the taking of personal property under a warrant for the 
 collection of taxes, issued by him and attached to the tax roll, evidence 
 that he was at the time supervisor, and, as such, signed the warrant, does 
 not make out a prima facie justification. He must also show that the 
 roll had come to his hands from the Board of Supervisors, as provided 
 bylaw, and that the various taxes had been certified to him for assess- 
 ment by the competent authorities. When his jurisdiction has been 
 thus shown, his acts will be presumed regular and valid till the cpn- 
 trary appears. Glark v. Axford, 5 Mich., 183. 
 
 3136. A supervisor is not liable in trespass on account of any errors 
 or defects in the description of real estate in the assessment roll. 
 Ibid. 
 
 3137. Collector's compensation. Under the statutes in force 
 tn 1861 and 1863, the township treasurer had the right to retain, of his 
 own authority, only two per cent, of the taxes of 1861 collected by him, 
 for his fees, where neither the electors of the township, nor the super- 
 visor, had fixed his compensation at a higher rate. Township of Texas 
 V. Wager, 13 Mich., 39. 
 
 313S. Whether the supervisor has the right to fix the compensation 
 when the electors have neglected to do so, quere. Ibid. 
 
 3139. Where the electors did not determine what percentage should 
 be added to the taxes for the collection expenses, and the supervisor 
 added two and a half per cent., and, in his warrant for their colledtion. 
 
TENDER. § 3146 
 
 directed the treasurer to retain that amount for his fees, and the trea- 
 surer retained four per cent., paying over the remainder ; it was held 
 that he was liable to the township for the amount he had retained over 
 two and a half per cent. Ibid. 
 
 3140. Redemption of undivided interest in Detroit. 
 That since the charter of 1S57 the owner of an undivided interest in 
 lands in Detroit may redeem such interest from a sale made of the 
 whole land, by paying a proportionate amount of the tax, see People e. 
 Treasurer of Detroit, 8 Mich., 14. 
 
 3141. Taxation and eminent domain. The difference 
 between taking property under the right of taxation and under the 
 power ofieminent domain pointed out. WiUiarm v. Mayor, &c., of De- 
 troit, 2 Mich., 560 ; WoocOrridge v. City of Detroit, 8 Mich., 274. 
 
 TENANT IN COMMON. 
 
 3142. Crops put in on shares. One J. put in wheat on 
 shares on defendant's lands, and was to have possession of the land, and 
 do other farm duties upon shares of other produce. As there was no 
 proof that It was agreed that J.'s rights in the crops should be forfeited 
 by non-fulfillment of any other conditions, and no evidence of damages 
 from any such non-fuUfilment, it was held, in a controversy between 
 defendant and plaintiffs, to whom J. had mortgaged the crops while 
 growing, that J. was clearly tenant in common of the crops. Figuet v. 
 AUison, 12 Mich., 328. 
 
 3143. When the crops were ripened plaintiffs harvested them, but 
 defendant threshed them, put them in his granary, and refused to re- 
 cognize any rights of plaintiffs therein. Held that he was liable to 
 plaintiflfe for the value of their share in assumpsit. Ibid. See Webb d. 
 Mann, 3 Mich., 139. 
 
 TENDER. 
 
 3144. A tender to be valid must be made to the creditor or some one 
 authorized to act for him. It is insufficient if made to a mere servant ot 
 the creditor. Tlturberv. Jewett, 3 Mich., 395. 
 
 3143. A tender for the purpose of cancelling a judgment should in- 
 clude both damages and costs. A tender of damages with the clerk's 
 receipt for the costs is not sufficient. Ibid. 
 
 3146. Where -a 'bill holder presents at one time to a bank for re- 
 demption, several *)iHs of the denomination of $5, it is competent for 
 the bank, under the act of Congress of Feb. 28, 1853, entitled " An act 
 amendatory of the existing laws relative to the half d(Stors," &c., to 
 
g 3135 TIME. 
 
 tender payment of the whole sum so presented in half dollars issued 
 under said act. Strong v. Farmers and Mechanics' Bank, 4 Mich., 350. 
 
 3147. The Legal Tender Act is constitutional. Van Husan 
 ■0. Kanouse, 13 Mich.^ 303. And in a suit on a note given since its pas- 
 sageand expressly by its terms made, payable in gold, it is not compe- 
 tent for the Court to receive evidence that gold is worth a premium 
 over legal tender notes, and to award to the plaintiff as damages a sum 
 equal to such premium in addition to the amount specified in the note. 
 Btuihegger v. ShvUz, 13 Mich., 420. 
 
 314 §. That a tender of the amount of a debt for which property is 
 held in mortgage discharges the lien, see FvUer v. Parish, 3 Mich., 211; 
 Moyndhan v. Moore, 9 Mich., 9 ; Caruthers o. Humphrey, 12 Mich., 
 270 ; Van Husan v. Kanouse, 13 Mich., 303. 
 
 TERRITORIAL COUNCIL. 
 
 3149. The Legislative Council of the Territory of Michigan had 
 power to pass acts of incorporation, wliich were valid until disapproved 
 by Congress. Mercer v. WiUiams, "Wal. Gh., 85 ; Swan v. WitUams, 2 
 Mich., 427. 
 
 TIME. 
 
 3150. Conflicting dates. Where a date is given, both as a day 
 of the week and a day of the month, and the two are inconsistent, the 
 dayof the month must govern. IngersoU v. Kirby, Wal. Ch., 27. See 
 supra, 678. 
 
 3151. Computation of. Where a statute prescribes that a pro- 
 cess should be served a certain number of days before the return day, 
 both the day of service and the day of the return must be excluded in 
 the computation. Dousman v. ffMaJXey, 1 Doug., 450 j SdJke v. Ireland, 
 9 Mich., 154. 
 
 3152. Where by statute an act is required to be done in any number 
 of days less than a week, Sunday is to be excluded. Brake v. Andreas, 
 2 Mich., 203. See supra, 130, 2799. 
 
 3153. No time specified. A chattel mortgage may be given 
 to secure the performance of any other act or contract by the mortgagor, 
 or by a third person, besides the payment of money ; and where no 
 time of performance is specified, the omission does not vitiate the con- 
 tract, but the law steps in and requires performance within a reason- 
 able time. Byramv. Gordon, 11 Mich., 531. At to reasonable time, see 
 further, supra 386 to 388, 401 to 404 
 
 400 
 
TOWNSHIPS. § 3160 
 
 TOWN PLATS. 
 
 3134. Public grounds. Where the proprietors of a village or 
 town plan have dedicated lands for streets, or for a public square, and 
 sold lots Tvith reference to such plan, they cannot resume and exercise 
 acts of ownership over the land thus dedicated which will deprive the 
 grantees of any privileges which they might derive from having such 
 streets or squares open. Sinclair v. Oomstock, Har. Ch., 404. 
 
 3155. The dedication for the purpose claimed must be clearly ap- 
 parent. Ibid. See Zee v. Lake, 14 Mich. And see further to the same 
 effect. People v. Beaubien, 2 iDoug., 258 ; Gook v. Village of Hillsdale, 7 
 Mich., 115 ; People v. Jones, 6 Mich., 176. 
 
 3136. Where a lot was dedicated for the purpose of having a court 
 house and jail erected thereon, and the county erected those buildings 
 on another lot in the same village, it was held that the first mentioned 
 lot reverted to the original owner, and that persons who had pur- 
 chased adjoining lots had no right to insist that it should be kept open 
 as a public square or common. Sinclair v. Comstock, Har. Ch., 404. 
 
 3137. A town plat executed and recorded under the statute, vests 
 the fee of the public grounds in the county. Wanzer i). Blanchard, 3 
 Mich., 11. 
 
 For a case where the making and recording of a town plat, and 
 the designating ground as public square, were held, in connection 
 with the other facts in the case, not to establish a dedication, see Lee 
 V. Lake, 14 Mich. 
 
 TOWNSHIPS. 
 
 315S. Liiabilfties. A township was sued on the following in- 
 strument : " The commissioners of highways of the township of E. will 
 pay the bearer twenty two dollars, when funds in road district number 
 three and four :" dated, and signed by the commissioners. Edd, that the 
 action could not be sustained. Monroe v. Township of Rowland, 1 
 Mich., 318. 
 
 3159. A township is not liable for interest on damages appraised 
 for laying out a highway. People v. Township Boa/rd of La Orange, 2 
 Mich., 187. 
 
 3160. Townships are not liable for damages sustained by individuals, 
 in consequence of the non-repair of bridges and highways. And they 
 cannot be subjected to such liability through an action against the com- 
 missioners of highways. Commissioners of Highways of Mies v. Martin^ 
 4 Mich., 557. 
 
 A statute has since been passed — Laws of 1861, p. 407 — designed 
 (perhaps) to give a remedy against the township in such cases. 
 26 401 
 
g 3167 TREATY. 
 
 3161. Taxes. Under the Statutes of 1838, townships had authority 
 to vote to raise money for buUding bridges upon the report of the high- 
 way commissioners. Also to raise money lor the destruction of Canada 
 thistles. Also to raise a sum for contingent expenses generally, with- 
 out specifying for what particular purposes. Tweed v. Metealf, 4 Mich., 
 579. And the township boards, independent of any vote of the electors, 
 might raise money to pay claims audited and allowed against the town- 
 ships. Wisner v. Davenport, 5 Mich., 501. 
 
 3162. l>iTi§ion of townships : indebtedness. Where, 
 after the division of a township, the town boards have met and deter- 
 mined the amount of the township indebtedness to be paid by the new 
 township, such amount is a fixed and liquidated demand against the 
 new township, which it is the duty of its town board to allow and issue 
 order for. If the town board refuse to perform this duty, mandamus 
 is the proper remedy, and not an action against the township. Mara- 
 thon TownsJdp V. Oregon Township, 8 Mich., 373. 
 
 3163. Board of health. When the board of health of a town- 
 ship necessarily incurs expenses in providing for the protection of its 
 inhabitants against a sickness dangerous to the public health, by the 
 removal of persons infected to a building provided for them, such ex- 
 penses are a charge against the county which it is the duty of the 
 Board of Supervisors to allow. People v. Supervisors of Macomb, 3 
 Mich., 475. 
 
 TREATY. 
 
 3164. Identity of beneficiaries. Where a treaty makes no 
 provision for deciding questions of individual identity, they must be de- 
 cided by the judicial tribunals of the country. Stockton v. Williams, Wal. 
 Ch., 120; same case on appeal, 1 Doug., 546. See also, Campani v. Dew- 
 ey, 9 Mich., 381. See supra, 1940 to 1943. 
 
 3165. Jay's treaty. The stipulations contained in the treaty ef 
 London, known as Jay's Treaty, for the protection of private rights of 
 property, imposed no new obligation upon the Government of the United 
 States, but were only in affirmance of the law of nations. May v. Speeht, 
 1 Mich., 187. 
 
 3166. Force of a treaty. Where a treaty has been made and 
 ratified by the proper Federal authority, it becomes the law of the land ; 
 and Courts have not the power to question the powers or rights recog- 
 nized by it in the nation or tribe with whom it was made. Maiden v. 
 IngersoU, 6 Mich., 373. 
 
 3167. Constrnction. A treaty with Indian tribes, after recitkig 
 that they felt a strong consideration for aid rendered by certain of their 
 
 403 
 
TRESPASS TO LANDS. g 3173 
 
 half breeds, and that, wishing to testify their gratitude, they had as- 
 signed certain locations of land to such individuals, and had united in 
 a strong appeal for the allowance of the same in the treaty, but that no 
 such reservations could be permitted in carrying out the instructions of 
 the President, it was agreed that, in addition to the general fund set 
 apart for half breeds in another article, the sum of $48,148 should be 
 paid for the relinquishment of this class of claims, to be divided in the 
 following manner : " To John A. Drew, for a tract of one section and 
 three quarters, to his Indian family, at Cheboygan Rapids, at $4 an acre," 
 &c. ndd, that the money was given to Drew absolutely, and not in 
 trust for his Indian family. Cook v. Biddle, 2 Mich., 369. 
 
 316§, The Court cannot, from a construction of the Treaty of Sagi- 
 naw of Sept. 34, 1819, interpret the words " Indians by descent," as 
 used therein, to mean persons of mixed white and Indian blood only, and 
 not full blooded Indians. Oampau v. Dewey, 7 Mich., 381. 
 
 3169. Nor can the Court say, from the language of the treaty, the 
 policy of the Government as indicated by the Indian treaties, public re- 
 cords and dispatches, and the habits and modes of life of the Chippewa 
 nation, that a presumption arises that all the reservees in said taeaty 
 were persons of mixed white and Indian blood. liid. 
 
 TRESPASS TO LANDS. 
 
 3170. A party having title to unoccupied lands is constructively in 
 possession, and may maintain trespass against one who, without his 
 license or authority, having no color of title to the lands, and whose 
 acts evince no intention to retain permanent possession, enters upon 
 them and cuts and carries away timber. Safford v. Basto, 4 Mich., 
 406. 
 
 3171. The defendants went upon unoccupied lands under a void tax 
 title, and cut and carried away the timber. The plaintiff, having the 
 title, brought trespass. It was held that he was constructively in pos- 
 session, and that if the defendants entered upon the lands with the 
 intention to cut and remove the timber as soon as they could, and then 
 abandon it, the act did not constitute a disseizin, and they were liable 
 in this action. Ibid. 
 
 3172. The statute giving treble damages for trespass on lands in 
 certain cases — Comp. L., p. 1147 — was not framed to protect mere pos- 
 sessory rights, but to give the owner of the fee the right to sue, under 
 the form of trespass, for injuries to his inheritance. And it is there- 
 fore not a defense to the action that defendant had disseized the plain- 
 tiflf, though it may prevent treble damages. AeJiey v. SvM, 7 Mich., 
 433. 
 
§ 3178 TRUSTS AND TRUSTEES. 
 
 TRUSTS AND TRUSTEES. 
 
 3173. 'What constitutes. County commissioners, authorized to 
 take a mortgage to tlie county, but taking it to tliemselves, hold it as 
 trustees for the county. Bood v. Window, 3 Doug., 68. 
 
 3174. The act of Congress of March 3, 1807, " regulating the grants 
 of land in the territory of Michigan, " recognized no right in claimants 
 hut that of occupancy and possession, as the stock in which the fee was 
 to be engrafted ; and where three brothers, on the death of their father, 
 claimed a tract of land under a " substitution," or kind of entailment, 
 by which the land belonged to the eldest son his life time, and after his 
 death to the second son his life time, &c., the eldest son, under the claim 
 set up by the brothers, being entitled to the occupancy or possession in 
 his own right, to the exclusion of his brothers, was also entitled to the 
 fee simple in his own right ; and having presented his claim, and pro- 
 cured its allowance, and obtained a patent for the land, there was not a 
 resulting trust in favor of his brothers. Chene v. Bank of Michigan, Wal. 
 Ch., 511. 
 
 3175. "Whether certain facts constitute a trust or an agency, see Titus 
 V. Minnesota Mining Co., 8 Mich., 183. That one good trust inserted in a 
 fraudulent conveyance cannot support it, see Kirby v. IngersoU, Har. 
 Ch., 173. That State officers to whom property has been assigned on 
 condition subsequent that the State shall indemnify the assignors against 
 certain liabilities, may be required, as trustees, to appropriate the pro- 
 perty in indemnifying the assignors when the State refuses to perform 
 the condition, see Michigan State Bank v. Satnmond, 1 Doug., 537. 
 
 3176. Declaration. To take the case out of the Statute of 
 Frauds, the terms and conditions of a trust in lands which have been 
 conveyed by absolute deed, must be in writing, under the hand of the 
 grantees. Wright «. King, Har. Ch., 13. 
 
 3177. Resulting trust. A resulting trust only exists where the 
 actual p-yment of the purchase money is clearly and distinctly proved. 
 Payment of a part only will not be sufficient. Bernard v. Bougard's 
 Heirs, Har. Ch., 130. And see Wright v. King, Har. Ch., 13. Result- 
 ing trusts in such cases, except in behalf of creditors, have since been 
 abolished by statute. Comp. L., §§ 2637, 3638. , 
 
 3178. The trust in favor of creditors, where one has purchased land 
 with his own money and caused it to be conveyed to another to keep it 
 beyond their reach, is not executed by the Statutes of 1846, and cannot 
 be enforced by levy and sale on execution. Traskv. Green, 9 Mich., 
 358; Mc^nard ■». Hoshins, 9 Mich., 485. But where the debtor has 
 conveyed away lands to which he had title, for the same fraudulent 
 purpose, it remains subject to execution in the hands of the grantee, 
 
 404 
 
TRUSTS AND TRUSTEES. § 3184 
 
 and the purchaser at the execution sale may recover possession in eject- 
 ment. Oldand ». Taylor, 3 Mich., 201. 
 
 3179. Wliat does not create a tru§t. A conveyance by 
 husband and wife, with condition that the grantee, during the natural 
 lives of the grantors, should farm the land conveyed, and pay a portion 
 of the products to the grantors, and at their decease, convey to their 
 surviving children, and in default of such, to the right heirs of the grant- 
 ors ; — the deed not being executed by the grantee — does not create an 
 irrevocable trust, and vests no estate in the children. And it was ac- 
 cordingly held, that after reconveyance by the grantee to the grantors, 
 they might dispose of the fee. Lewis v. J^daon, 4 Mich., 630. 
 
 3150. The clause in the deed directing a conveyance, &c., is a mere 
 power to convey in the event of the grantors dying without making 
 other or further disposition. Ibid. 
 
 3151. Dealings of trustee ivith cestui que tru§t. A 
 trustee is not allowed to deal with Ms cestui que trust as with a third 
 person ; and purchases of trust property made by him will not be sus- 
 tained, unless the Court is satisfied that he has acted throughout with 
 the most perfect fairness, and taken no advantage of his peculiar posi- 
 tion. Schwarz ». Wendell, Wal. Ch., 267. Under the facts appearing in 
 this case, the Court set aside a purchase made by the cestui que trust of 
 the trustee, and ordered the latter to deliver up to be cancelled a note 
 given for the purchase price, or to account for the amount. 
 
 3152. The agreements of the husband of a cestui que trust with the 
 trustee are not binding upon the wife. IMd. 
 
 3183. Set off by trustees. Land was conveyed to a railroad 
 company by deed containing a covenant against incumbrances. The 
 railroad afterwards passed into the hands of trustees. A mortgage 
 which was upon the lands so purchased by the railroad company was 
 foreclosed, and the trustees bid in the land, not as trustees, but in their 
 own right. It was held that this could not be regarded as a payment, so 
 as to authorize the trustees to set off the amount of their bid against a 
 mortgage given by the railroad company for the purchase price of the 
 land when they bought. Origgs v. Detroit and Milwaukee Railway Co., 
 10 Mich., 117. 
 
 31§4. Subrogation. One whose sole interest in lands is under 
 a trust deed, by virtue of which he is to become entitled to them on 
 paying certain mortgages upon them, and also certain other specified 
 demands, is not entitled, if he repudiates the trust, to make any ar- 
 rangements with the mortgagees by which he can be subrogated in 
 equity to their rights without paying the other demands. Smith v. Aus- 
 tin, 11 Mich., 34. 
 
 405 
 
§ 3190 UNIVERSITY OF MICHIGAN. 
 
 UNIVERSITY OF MICHIGAN. 
 
 3155. The corporation. The " Regents of the University of 
 Michigan " are the legal successors of the " Trustees of the University 
 of Michigan," incorporated by the act of April 30, 1831, (Code of 
 1827, p. 448). Regents of tlie JJnicerdty v. Board of Bditcation of De- 
 troit, 4 Mich., 318. 
 
 3156. Orant of lands in Detroit. The conveyance by the 
 Governor and Judges of Michigan territory of certain lands in Detroit 
 to the Trustees of the University of Michigan, held valid. Ibid. 
 
 3157. Power of Regents to bold lands. The Regents 
 of tlie University have power to take, hold and convey real estate, for 
 any purpose tending to promote the interests of the University, to in- 
 crease its funds, or otherwise to further the great public objects for 
 which the corporation was created. Begemta of the University v. Detroit 
 Young Men's Society, 12 Mich., 138. 
 
 31§§. Suit by the Regents to recover the purchase price of lands 
 sold by them. The declaration averred their ownership, but did not 
 show the nature of their title, nor how acquired, and it was demurred 
 to on the ground that the Regents had no power to make sale of lands 
 without special legislative authority. Held that as it was legally possible 
 for the Regents, in some modes and for some purposes, to be vested 
 with the title to lands with power to convey the same, judgment on the 
 demurrer must be for the plaintiff. Ibid. 
 
 31S9. Control of the University. The financial and other 
 interests of the University are entrusted to the judgment and discretion 
 of the Regents. It is a sufficient answer to an application for a manda- 
 mus to show cause why they do not fill a professorship established by 
 law, that the appointment being likely to interfere with the harmony of 
 the institution, and being one requiring great care and deliberation in 
 making, they had commenced and were still making the investigations 
 necessary to enable them to make a proper appointment ; especially 
 wliere there appeared to be no unncessary delay or want of good faith 
 in their proceedings. People v. Regents of the University, 4 Mich., 68. 
 
 USAGE. 
 
 3190. Foreign moneys. The relative value of foreign and 
 American currency is a question of commercial usage, and may be 
 proved by any one acquiunted with the usage. Kermott v. Ayer, 11 
 Mich., 181. 
 
 406 
 
USXmY. § 3198 
 
 USES. 
 
 3191. If the Statute of Uses -was ever in force in Michigan, it was 
 repealed by the act of September 16, 1810, repealing the acts of Parlia- 
 ment, &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. Trask v. Green, 9 Mich., 358. 
 There was consequently nothing to prevent the creation of any trust 
 which would have been valid at the common law. Beady v. KewraUy^ 
 14 Mich. 
 
 USURY. 
 
 3192. Construction of statute. The effect of usury under 
 our statute is, not to avoid the contract, but to reduce the amount which 
 the usurer is entitled to recover to the money actually loaned, with legal 
 interest. And the borrower has no other remedy but such reduction. 
 Craig v. Butler, 9 Mich., 21. See also, Thurston v. Prentiss, "Wal. Ch., 
 539, and 1 Mich., 193, 
 
 3193. The deduction may be made as well when suit is brought on 
 the usurious contract in a Court of equity, as when it is brought at law. 
 Coatsworth i). Barr, 11 Mich., 199. 
 
 3194. Usury is a personal defense, to be interposed by the 
 party to the contract, and a subsequent purchaser of land upon which 
 the usurious contract is a lien, cannot avail himself of it. Farmers ami 
 Meclumics' Bank v. Kvmmd, 1 Mich., 84 ; Sellers v. Botsford, 11 Mich., 59. 
 
 3195. Evidence. Where a contract with a corporation on its 
 face imports ai reservation of interest, in excess of what its charter al- 
 lows, there is no room left for presumption : the intent is apparent. 
 Where, however, it is fair on its face, the law will not infer an intent, 
 or a corrupt agreement, to take illegal interest, in violation of the char- 
 ter ; but this must be clearly established, Orr ». Lacey, 3 Doug,, 230. 
 For a case where the facts were held to prove usury, see Ga/rufhers e. 
 Humphrey, 13 Mich., 370. 
 
 3196. 'What is usury. On an usurious contract the plaintiff 
 may always recover interest up to the highest legal rate not prohibited 
 by the statute, if such are the express terms of the contract. SmiXh v. 
 Stoddard, 10 Mich., 148. 
 
 3197. Xew security. Where unlawful interest has been paid, 
 and a new security is afterwards taken for the principal, the debtor is 
 not entitled to have the amount of the usury so paid deducted when 
 suit is brought on the new security. Smith v. Stoddard, 10 Mich,, 148; 
 Craig v. Butler, 9 Mich., 21. 
 
 319S.. But if in the new security a sum is included for unlawful un- 
 
 407 
 
§ 3305 VENDOR AND PURCHASER. 
 
 paid interest, the security, to the extent of the unla'^rful interest, is 
 without consideration. Smith v. Stoddwrd, 10 Mich., 148. So if a sum 
 is included for statutory damages when the statute allows none. CoUins 
 Iron Co. V. Burkham, 10 Mich., 283. 
 
 3199. Foreign contract. Wliere a contract made in another 
 State is usurious, but the law of that State does not avoid it on that 
 ground, but only affects the remedy upon it, the Courts of this State 
 can enforce the contract, but only by those remedies afforded by our 
 own law. GoUins Iron Go. v. Burkham, 10 Mich., 283. 
 
 3200. The provisions of the Ohio statute for the recovery or appro- 
 priation of usury paid upon a contract, form no part of the contract, but 
 relate solely to the remedy which will be afforded by the Courts of that 
 State to the party from whom usury is taken. Ibid. 
 
 VARIANCE. 
 
 3201. An allegation that defendants acknowledged themselves held 
 and firmly bound unto " the board of supervisors of the county of St. 
 Joseph," is not sustained by a bond to " the supervisors of the county 
 of St. Joseph ;" — ^the declaration not alleging that the bond was made 
 to the plaintiffs by the name mentioned in the bond. Bowrd of Siipemi- 
 sors of St. Joseph v. Goffenbury, 1 Mich., 355. 
 
 3202. Ejectment. The plaintiffs, by their declaration, claimed the 
 premises as trustees " to sell the said premises, and apply the moneys 
 which they should obtain to the payment of certain debts " of one B. 
 The declaration of trust put in evidence on the trial, and signed by B., 
 provided for the payment of certain notes signed by another person, 
 and to which B. was not a party. Held, that it was fairly to be inferred 
 that B. was in some way bound for the payment of these notes ; and if 
 not, that his providing for their pajrment rendered them so far his 
 debts as to satisfy the averment in the declaration. Ives v. KimbaU, 1 
 Mich., 308. 
 
 VENDOR AND PURCHASER. 
 
 3203. What is a sale. Where property is taken at a fixed 
 money price, the transaction is a sate, whether the price is paid in 
 money or in goods. Picard v. McGormick, 11 Mich., 68. 
 
 3204. Sale of chattels : delivery. The sale of a chattel, 
 where the consideration is actually paid, is valid without actual deliv- 
 ery, or even if the chattel at the time is lost or withheld from the ven- 
 dor by a wrong doer. Davis v. Ransom, 4 Mich., 238. 
 
 3205. A contractor for convict labor, while engaged within the State 
 
 408 
 
VENDOR AND PURCHASER. § 3311 
 
 prison, had a watch worth $125 stolen, which, not being found after 
 diligent search, he offered to sell at $35. The agent of the State prison 
 and one of the guards accepted the offer, and paid the |35. It was held 
 that the purchase was not void for want of delivery, nor as against pub- 
 lic policy because made by such officers. lUd. ' 
 
 3206. The defendant sent wheat by railroad from Hudson to Toledo, 
 consigning part of it to H. & Co. and part to F. On its arrival at To- 
 ledo, the wheat was mingled with other like grain, in the railroad 
 elevator. The receipts given for the wheat made it deliverable to the 
 
 ■ consignees or order. Defendant then made sale of the wheat to plain- 
 tiff, and received payment for the same, and gave him an order on F. 
 for its delivery. Before plaintiff found F., or obtained delivery of the 
 wheat, it was destroyed by the burning of the elevator. Held : 
 
 1. That the legal control of the wheat was in the consignees, through 
 whose co-operation alone the title could be vested in the plaintiff. 
 
 3. That the order upon F. was an undertaking on the part of defend- 
 ant that F. would complete the sale by delivery of the wheat ; and that 
 he was liable to the plaintiff for a breach of that undertaking. Perkins 
 V. Bacon, 13 Mich., 81. 
 
 3207. That where a note is made and indorsed for the purpose of 
 being sold or discounted, it is the delivery of the note to the purchaser 
 which completes the contract as between him and the parties to it, see 
 Kinzie v. Farmers and Mechanics' Bank, 1 Doug., 105, and Vinton v. 
 Peck, 14 Mich. 
 
 320§. Sale of goods : risk of sending. Where a merchant 
 sells goods to a purchaser at a distance, and contracts to ship them at a 
 certain time by a specified route, but, instead of doing so, sends them by 
 some other, it is at his own risk of loss or unseasonable delivery. Flem- 
 ing V. Mills, 5 Mich., 430. 
 
 2209. Executory contract. Whether an agreement for a sale 
 of lands, by the usual executory contract — the title to be conveyed 
 when the purchase price is paid — constitutes a sale within the meaning 
 of the act of the legislature of February 13, 1858, exempting lands do- 
 nated for the construction of the Sault Ste. Marie Canal, from taxation 
 for five years, except as to any portion sold, quere. People v. Auditor 
 General, 7 Mich., 84. 
 
 3210. Consideration. As to the sufficiency of consideration to 
 support a transfer of property, see Ooff v. Thompson, Har. Ch., 60 ; 
 Oicotte V. Gagnier, 2 Mich., 381. That third persons have no concern 
 with the consideration for the transfer of property or rights, unless 
 they are creditors of the assignor, see Morey v. Forsyth, Wal. Ch., 465. 
 
 3211. Notice through deeds. That where a vendee cannot 
 make out a title except through a deed which leads him to a certain 
 
 409 
 
§ 3218 WAGER. 
 
 fact, he must be presumed to have knowledge of that fact, see Mmou v. 
 Payne, Wal. Ch., 459; Norria v. HiM, 1 Mich., 203; and is chargeable 
 with all reasonable inferences therefrom. FUzhugh v. Barruvrd, 12 
 Mich., 104. 
 
 3312. Purcbase subject to mortgage. One who buys 
 land subject to a mortgage, cannot contest the mortgage on the ground 
 that it is defectively executed. Disbrow v. Jones, Har. Ch., 48. 
 
 3213. Vendor's lien. The vendor of real estate has an equita- 
 ble lien upon it for the purchase money, where no security for the pay- 
 ment has been taken by him. Carroll v. Van Reiiselaer, Har. Ch., 225 ; 
 Payne v. Atterbury, Har. Ch., 414; Palmer et ai., appellants, 1 Doug., 
 422 ; Sears v. Smith, 2 Mich., 243 ; Mowrey v. Vandliny,^ 9 Mich., 39. 
 
 3214. But if the vendor takes a distinct and independent security 
 for the purchase money, other than the personal obligation of the ven- 
 dee — as the note or other obligation of a third person, or the obligation 
 of the vendee with sureties — the lien is gone. Palmer et al., appellants, 
 1 Doug., 422 ; Sears v. Smith, 2 Mich., 243. An administrator who re- 
 ceives such obligation on a sale of lands belonging to the estate, is per- 
 sonally liable to the estate for the amount if not collected. 1 Doug., 422. 
 
 3215. liien of Tendee. A vendee who has paid his purchase 
 money punctually, has a lien as against the vendor analogous to that 
 of a vendor against a vendee who has not paid the purchase money. 
 Payne v. Atterbury, Har. Ch., 414. 
 
 3216. Tendor becoming purchaser. 'No one without ex- 
 press authority of law can become purchaser of property which it is his 
 duty to sell for the highest price he can obtain. Am£s v. Port Huron 
 Log Driving and Booming Co., 11 Mich., 139. See also, Moore v. Man- 
 dkbaum, 8 Mich., 433 ; Bwight v. Blachma/r, 2 Mich., 330 ; Beaubien v. 
 Poupard, Har. Ch., 206 ; Oluie v. Barron, 2 Mich., 192 ; People v. Town- 
 ship Board of Overyssd, 11 Mich., 322. 
 
 WAGER. 
 
 3217. Recovery of staiieholder. If the loser of money, de- 
 posited upon an unlawful wager, claim his money before it has been 
 actually paid over by the holder, even though it be after the wager has 
 been decided, the stake holder is bound to return it to him, and is liable 
 to an action therefor if he refuses. Whitwell v. Carter, 4 Mich., 329. 
 
 3218. Suit against tbe winner. Suit under the statute — 
 Comp. L., § 1582 — which authorizes the loser of money by betting, 
 " who shall pay and deliver the same " " to the winner," to " sue for 
 and recover such money, in an action for money had and received." 
 The parties had made a wager upon the result of an election, depositing 
 
 410 
 
WAIVER. § 3325 
 
 their negotiable notes for the amount, instead of money. When the 
 result was determined, the stakeholder delivered the notes to the win- 
 ner — ^the defendant — who afterwards sold plaintiff's note at a discount. 
 Plaintift' then brought assumpsit against defendant, for money had and 
 received, and on the trial, produced his note as evidence that he had 
 paid it. Held, that the production of the note was not sufficient evi- 
 dence of its payikent by plaintiff to authorize him to maintain the statu- 
 tory action. BucUey a. 8aae, 10 Mich., 338. 
 
 WAIVER. 
 
 3219. A waiver of a legal right is not to be implied from slight cir- 
 cumstances. Bird, !). SarnMon, Wal. Ch., 381. 
 
 3220. A Joint promlssor has no power to waive the perform- 
 ance of a condition precedent, when the effect would be to create an 
 obligation against the other joint promissor which would not otherwise 
 exist. Thompson v. Richards, 14 Mich.. 
 
 3221. An administrator does not preclude himself from main- 
 taining a suit for a fund, in his representative capacity, by borrowing a 
 part of it in his individual capacity, and executing his bond and mort- 
 gage therefor. OuUen v. O'Sara, 4 Mich., 183. 
 
 3222. Diversion of Avater. Where complainant had stood by, 
 without objecting, and allowed defendant to go on and expend a consid- 
 erable amount of money in the erection of a mill, in violation of the 
 terms of a grant made by complainant, in consideration of the erection of 
 the mill, of the right to use the water of a creek in a particular manner, 
 it was held, that by his silence he had waived all right to relief in 
 equity, by injunction, against diverting the water. Jacox v. Clark, 
 Wal. Ch., 249. 
 
 3223. Account of rents. Where one neglects for several 
 years after the time of redemption expires, to perfect his title under an 
 execution sale, he waives all right to an account of the rents and profits 
 for the intermediate period. The officer's deed relates back to the time 
 of the sale, for the purpose of protecting possession under the title pur- 
 chased, or for the purpose of supporting a conveyance made by the 
 purchaser or his assignee ; but not to give the purchaser or his assignee 
 compensation for the use and occupation of the premises before his own 
 title is perfected. Whipple v. Farra/r, 3 Mich., 436. 
 
 3224. In legal proceedings. By going to trial without ob- 
 jection, a party waives any he might have to the want of proper qualifi- 
 cation of jurors. Oxoners of Ship Milwaukee ». Hale, 1 Doug., 306. 
 
 3225. A nonsuit was set aside on condition of payment of costs by 
 the plaintiff. Afterwards defendants stipulated in writing, uncondition- 
 
 411 
 
3233 WARRANTY. 
 
 ally, to try the cause on a certain'day. Held to be a waiver of the prior 
 ijayment of costs. JSigley v. Lant, 3 Mich., 613. 
 
 3236. A plea in bar is a waiver of an objection to the jurisdiction of 
 a Court of general jurisdiction. WAb v. Mann, 3 Mich., 139. 
 
 3227. "Where a witness is excluded on objection, but afterwards, the 
 Court doubting the correctness of its ruling, oflFers to open the question 
 and hear further argument, which the counsel declines, the objection 
 will be considered waived. MoBride v. Cicotte, 4 Mich., 478. 
 
 322S. A defendant in chancery attending and examining witnesses 
 before a master, on complainant's notice, will be regarded as waiving 
 all objections to the service of replication. Brooks v. Mead, Wal. Ch., 389. 
 
 3229. By appearing and going to trial in an attachment suit, de- 
 fendant waives all prior .irregularities. Crane v. Hardy, 1 Mich., 56. 
 
 See further, Vanderhoof v. Dean, 1 Mich., 163 ; Stewart v. SUl, 1 Mich., 
 265 ; 8haw v. Moser, 3 Mich., 71 ; Durfee v. McClurg, 5 Mich., 532 ; Sal- 
 lee V. Irdand, 9 Mich., 154. 
 
 WAREHOUSEMEN. 
 
 3230. That warehousemen who have received goods from carriers 
 who had no right to the possession of them, and advanced charges for 
 freight, have no lien upon them for such freight, or for any charge of 
 their own for storage, as against the owner, see FitcK v. Newberry, 1 
 Doug., 1. 
 
 3231. A railroad company which has entered into a contract to de- 
 liver flour on shipboard, continues liable as common carriers until this 
 delivery is made ; and if the flour is destroyed in their warehouse, they 
 cannot claim that their liability, while it was there, was that of ware- 
 housemen merely. Moore v. Michigan Central R. R. Co., 3 Mich., 23. 
 
 WARRANT OF ATTORNEY. 
 
 3232. The practice of giving or filing warrants of attorney, author- 
 izing the prosecution of a suit, has never prevailed in this State, and a 
 judgment will not be reversed for the want of one, even where the 
 plaintiflf below was a corporation. Farmers and Mechanics^ Bank v. 
 Troy City Bank, 1 Doug., 457. 
 
 WARRANTY. 
 
 3233. A fanning mill was sold on the representation that it was 
 good, and would do a good business. The purchaser gave his note for 
 it, to which it was added, that the note was given for the mill, which 
 
 112 
 
WATER RIGHTS. § 3235 
 
 ■was warranted to be good and to do a good business, and that if was not 
 good, the purchaser was to have the privilege of returning it within a 
 certain time, and the seller was to furnish a new mill in exchange, 
 which should be good. In an action on the note, it was held, that unless 
 it was shown the seller knew at the time of the sale that the mill was 
 not good, the purchaser was bound to return it according to the condi- 
 tion annexed to the note, before he could avail himself of any defect in 
 the mill in his defense. Horner v. Fellows, 1 Doug., 51. 
 
 WATER RIGHTS. 
 
 3234. License. An unrevoked parol license to flow lands, given 
 by one who. at the time h£.d tfie right to flow, is a good defense to an 
 action for flowing lands. MiUard v. Reeves, 1 Mich., 107. 
 
 3233. Water leased : measurement. Water was leased by 
 the following words : " The right and privilege of drawing from the 
 west side of the race now making by the said party of the first part, in 
 Tpsilanti, and leading to his new saw mill, at any place within sixteen 
 rods of the head gate of said race, as much water as will run through an 
 aperture of two feet square, under a head of four feet from t':e top of 
 said aperture, for the use of carrying machinery for iron worki, provid- 
 ed so much shall be needed by the said party of the second part for 
 such use." And the lease further provided as follows : That " in case 
 the two feet square of water should not be enough for the use of such 
 iron works as the said party of the second part may hereafter erect, near 
 said race, he shall have as much more as shall be necessary for such use, 
 by paying therefor at the same rate as for the two feet square aforesaid;" 
 and also that " in case a sufBcient quantity of ore cannot conveniently 
 be procured for carrying on said iron works to advantage, the sp.id two 
 feet square of water may be iised for such other macliinery as the said 
 party of the second part shall think fit and proper." Held, that con- 
 struing the words of demise by the other parts of the instrument, the 
 lessee was entitled to as much water as would run from the race into a 
 flume conducting it to the iron works, through an aperture two feet 
 square, made in the side of the race, not lower down than four feet be- 
 low the surface of the water in the race ; and not to as much water as 
 would flow through an aperture of the size and under the head men- 
 tioned, into open space, or directly upon the wheel where it was ap- 
 plied. Norris v. Slwwerman, 3 Doug., 18, aflrming same ease, Wal. Ch., 
 206. 
 
 113 
 
3243 WAYS. 
 
 WAYS. 
 
 3236. Classification. All ways arc either public or private ; 
 there is no intermediate species of way for any purpose of passage. TQl- 
 m'dh V. People, 12 Mich., 401. 
 
 3237. Private. A canal through a marsh in which a stream is 
 lost, cut by private individuals through the land of one of them, for the 
 purpose of affording floatage for timber and lumber through the same 
 in connection with the stream — there being no evidence that the waters 
 of the stream ever ran along its line, or that it was the improvement of 
 an existing water channel — is a private way, and the public are not en- 
 titled to use it, unless it be dedicated to their use. Ward v. Warner, 8 
 Mich., 508. 
 
 323§. City streets ; obstructions. The Coimnon Council of 
 Detroit had no right, though acting under a resolution of a public 
 meeting of the freemen, to lease a portion of a public street to the Com- 
 missioners of Internal Improvement for the use of the State, for the pur- 
 poses of a railroad depot, and tracks connected therewith. Cooper v. 
 Alden, Har. Ch., 72. 
 
 3239. Neither the Governor and Judges nor the Common Council, 
 had or have any power or authority to grant the exclusive use of any of 
 the streets or alleys of the city to individuals. People v. Carpenter, 1 
 Mich., 273. 
 
 3240. Riglits of adjacent owners. Purchasers of lots on 
 the Governor and Judges' plan of Detroit have no other or greater rights 
 in the streets and alleys, than if the plan had been laid out by an indi- 
 vidual, who had legally dedicated the streets and alleys. Cooper v. Al- 
 den, Har. Ch., 72. 
 
 3241. On the application of purchasers who are interested in the 
 preservation or appropriation of a street or square to the purposes to 
 which it was dedicated, equity will restrain the public authorities from 
 putting it to other uses destructive of the ends for which the dedication 
 was made. IMd. 
 
 3242. Wlien obstruction a nuisance. Every obstruction 
 in a street or highway is not a nuisance. Whether it is such, or not, is 
 a question of fact, and not of law. A flight of stairs, described in the 
 case, within the limits of Woodwood avenue, was held to be an obstruc- 
 tion not authorized by the Governor and Judges, or by the Common 
 Council. People ». Oa/rpenter, 1 Mich., 273. 
 
 3243. Dedication. If the owner of land do such acts as show, 
 unequivocally, an intent to dedicate his land to the public for a high- 
 way, such dedication, if properly accepted, will make the land dedicat- 
 
 414 
 
WATS. § 3250 
 
 ed a public highway, without reference to any particular period of 
 time. People v. Janes, 6 Mich., 176. 
 
 3244. In determining whether there has been a dedication, all the 
 acts of the owner bearing upon the question are to be considered toge- 
 ther. One act may be explained or qualified by another. Ibid. And 
 see Cook v. Village of SiUsdale, 7 Mich., 115 ; People v. BeauMen, 2 
 Doug., 256 ; Lee v. Lake, 14 Mich. 
 
 3245. A dedication cannot be made out without an intent to dedi- 
 cate, clearly manifested. Ibid. 
 
 3246. It is essential to a dedication that it be accepted by the pub- 
 lic. In the case of city streets, the acceptance should be manifested by 
 some act of the authorities, either formally confirming the dedication, 
 and ordering their opening, or exercising authority over them in some 
 of the ordinary modes of improvement or regulation. People v. Jones, 
 6 Mich., 176 ; TiUman v. People, 13 Mich., 401 ; People v. BeauMen, 2 
 Doug., 256. An indictment against the proprietor for obstructing 
 a street is notof itself a suflacient acceptance, 2 Doug., 256, 
 
 3247. GoTcrnor and Judges' plan of Detroit. The 
 adoption by the Governor and Judges of the plan of the city of Detroit, 
 in 1807, did not, of itself, make public highway of that portion of the 
 projected streets which was covered by private claims, and occupied as 
 private property. Peoplev. Jones, 6 Mich., 176. 
 
 324S. That portion of Shelby street, between Jefferson avenue and 
 Woodbridge street, as projected on the plan, being, at the time of its 
 adoption, claimed and occupied as private property, and so continuing 
 to be claimed and occupied thereafter, and the corporate authorities of 
 Detroit having, many years after the adoption of the plan, under their 
 authority to lay out streets through private property, caused a street to 
 be laid out along it, but of less width than the street as originally pro- 
 jected, paying the occupants of the land for the strip so taken ; it was 
 held that this was a waiver of any right of the authorities, if they had 
 any under the plan, to that portiim of the projected street outside of the 
 Ikies of the street so opened. Peoplev. Jones, 6 Mich., 176. See also, 
 Tillman v. People, 12 Mich., 401. 
 
 3249. Imperfect town plat. Where a proprietor caused a 
 plat to be recorded, of land which he had had surveyed into lots, blocks 
 and streets, but the plat was not acknowledged, this was held no dedi- 
 cation, under Code of 1833, p. 531, of the streets to the public. People 
 V. Beaubien, 2 Doug., 256. 
 
 3250. Conveyances by deeds duly acknowledged and recorded, of 
 lots laid down on the plan ; the deeds describing the lots according to 
 
 415 
 
§ 8258 WAYS. 
 
 the plat, and refering to it as of record, will not supply the want of ac- 
 knowledgment of the plat. Ilnd. 
 
 3251. But the making and recording of the plat, and the convey- 
 ances, are acts in pais, tending to establish a dedication, though subject 
 to explanation. Ibid. 
 
 3252. Where a public way was claimed as dedicated by certain plats, 
 and also by acts in pais, and it appeared that the owners of the premises 
 had always occupied the locus as private property, and excluded the pub- 
 lic therefrom, it was held that the right of way must depend upon the 
 plats alone, and could not be claimed unless the plats showed an in- 
 tention to give it. Cook v. ViUage of HiUsdale, 7 Mich., 115. 
 
 3253. Constitutional protection. The constitutional provi- 
 sion respecting the taking of private property for public purposes, has 
 no application to the case of a dedication of a highway by the owner, 
 or where, from his long acquiescence in the public use of it, a dedica- 
 tion is presumed by law. Bumpus v. MUler, 4t Mich., 159. 
 
 3254. Roads by user. The Statute— R. S. of 1846, Ch. 35, § 
 29 — ^providing, among other things, that all roads not Recorded, which 
 have been used as public highways twenty years or more, shall be 
 deemed public highways, applies not only to cases where the twenty 
 years had elapsed at the taking effect of the law, but also to cases 
 where a portion of that time had elapsed, and it was completed after- 
 wards. Ibid. 
 
 3255. A variation of two or three rods in the travelled track at one 
 end of a highway, made such by twenty years user — the variation hav- 
 ing existed only twelve years — will not take away the right of the pub- 
 lic to use the road. Ibid. 
 
 3256. The statute providing that public highways shall be four rods 
 wide, a dedication, when not expressly or impliedly restricted by the 
 owner, will not be confined to the beaten track, but wiU include four 
 rods in width. Ibid. 
 
 3257. Cul de sac ; obstruction ; indictment. To make 
 the obstruction of a way an indictable offense, it must injuriously aflfect 
 some right in which the public, in their aggregate capacity, have a 
 common interest, as distinguished from a mere individual or private 
 right. If it aflfect only the rights of an individual, or of a definite num- 
 ber of persons, less than the whole, in their individual capacity, no in- 
 dictment lies. People v. Jackson, 7 Mich., 432. See IWman v. People, 12 
 Mich., 401. 
 
 325^. To constitute a highway, the way must be one over which all 
 the people of the State have a common and an equal right to travel ; 
 or, at least, a general interest to keep unobstructed. People o. Jackson, 
 7 Mich., 432. 
 
 416 
 
WAYS. § 3264 
 
 3250. "When the obstruction of a way can prejudice only the rights 
 of owners or occupants of adjoining lots, they have their remedy by 
 private action ; if it aflfect only the rights of the inhabitants of a city, or 
 the rights of a city in its corporate capacity, it may be a proper subject 
 for the local police of the city, to be regulated by ordinances and by laws; 
 but in neither case would it be the proper subject of an indictment. 
 lUd. 
 
 3260. A cul de sac, fifty feet in length, in the interior of a city 
 block, opening into other alleys which extend to public streets, but 
 having itself no communication with streets except through those alleys; 
 not being capable of forming a passage way from one street to another, 
 but furnishing access only to the rear of lots In the block ; and never 
 opened, worked or used as a highway, and not shown to have dwellings 
 upon or adjoining it, to which it gives access, is not a way for the ob- 
 struction of which an indictment will lie. lUd. 
 
 3261. The parties interested in the adjacent lots would have a right 
 to close such a, avl de sac, or to regulate its use as to them should seem 
 Ijroper, so far, at least, as respects its use as a way for passage or travel, 
 where it appears that there has never been any act of the public au- 
 thorities accepting it, and the owners have been allowed to keep a large 
 portion of it closed, and to erect valuable buildings upon it. FiBman v. 
 People, 13 Mich., 401. ^ 
 
 3262. It makes no difference in this respect, that buildings erected 
 along it, but since removed, were for a time used as dwellings. Any 
 right of way dependent upon such use would cease when the build- 
 ings were removed. Ibid. 
 
 3263. Regulation by city by-laivs. Until an alley in the 
 city of Detroit has been actually open to the uses for which it was de- 
 signed, the occupation or obstruction of it cannot properly be punished 
 under city by-laws. In giving the power to regulate the use of alleys, 
 and remove obstructions from them, the city charter contemplates the 
 preservation of actual, and not theoretical easements, and the protec- 
 tion of the community against actual nuisances, which interfere with 
 the accustomed use of the passages. Jackson v. People, 9 Mich., 111. 
 
 3264. Liaying out highway. Under the Statutes of 1846, it 
 was requisite to the valid laying out of a highway, that application 
 should be made therefor in writing by ten or more freeholders, and no- 
 tice of the application given to the persons interested in the lands ; and 
 that a survey of the road should be made and incorporated in an order 
 to be made by the commissioners, and filed in the office of the town- 
 ship clerk. And where none of these facts were shown, and the road 
 had never been opened or used, or regarded by the commissioners as a 
 highway, a mandamus to the township board, to show cause why they 
 
 27 417 
 
§ 3271 "WAYS. 
 
 should not pay the damages to a party though whose land a road was 
 claimed to have been laid, was refused. People v. Township Board of 
 Saw, 3 Mich., 121. 
 
 3265. Under said statutes, a township board had no power to re- 
 Tiew the proceedings of the commissioners in laying out and establish- 
 ing a road, except on appeal ; nor to review the proceedings of the ap- 
 praisers, except to see that they were not fold for want of jurisdiction. 
 People V. Township Board of La Orange, 3 Mich., 187. 
 
 3266. Section two of Oh. 35 of said Statutes, made it the duty of the 
 township clerk, on receiving an order from the commissioners of high- 
 ways laying out a road, forthwith to post a copy of such order on the 
 outer door of the house or building where the township meeting was 
 usually held, or, if there was no such house or building, then in one of 
 the most public places in the township. "Where it appeared that a copy 
 of the order was posted up on an inside door of a tavern, which was one 
 of the two places in the township at which the township meeting was 
 held alternately, it was held, first, that there was no house, or building, 
 within the contemplation of the statute, where the tovraship meeting 
 was usually held ; second, that the Court would presume, in the absence 
 of any showing to the contrary, that the tavern where the notice was 
 posted was one of the most public places in the township. Find. 
 
 3267. Commissioners must lay out ivhole road. "Where 
 application is made for laying out a highway, under the statute of 1861, 
 the commissioners must lay out the whole road applied for, or no part 
 of it. People v. Township Board of SpringweUs, 13 Mich., 434. 
 
 3268. "Wbo may complain of their action. "Where a 
 road is regularly applied for, and the commissioners decide to-lay out a 
 part of it only, any person through whose lands the road runs as laid, is 
 entitled to take proceedings to test the validity of their action. IHd. 
 
 3269. Xew application. Under the statute of 1861, p. 356, 
 the commissioners of highways have no power to entertain a second ap- 
 plication for laying out the same road within one year from the first. 
 People v. Township Board of BpringweUs, 13 Mich., 462. 
 
 3270. Compensation for land taken. A township is not 
 liable for interest on damages appraised for laying out a highway. Peo- 
 pie ». Township Board of La Grange, 3 Mich., 187. 
 
 3271. A jury was summoned in 1859, on the warrant of a justice, to 
 determine the necessity of taking the relator's lands for a highway, and 
 to assess his damages. The jury found the taking necessary, and asses- 
 sed the damages ; and their finding was filed in the town clerk's office, 
 but not certified by the justice as required by law. The amount of the 
 damages was levied and collected by tax, and the road opened. It was 
 held that the town could not resist the payment of the damages to the 
 
 418 
 
WILL. 8 3278 
 
 relator, on the ground that the justice had failed to certify the finding. 
 People V. TownsJdp Board of LoweU, 9 Mich., 144. 
 
 S27ii, There was no law in Michigan in 1857 under which a high- 
 way could be legally laid out through condemnation of the land to be 
 taken therefor. And therefore township authorities cannot refuse to 
 make pajonent for lands taken for a highway in 1859, on the ground 
 that a road was laid out over the same line in 1857. Ibid. See People v. 
 KinibaU, 4Mich., 95. 
 
 3273. "Where a highway was laid out through the lands of an indi- 
 vidual in 1860, and his damages were appraised, and an order on the 
 township treasurer tendered for the amount, which order was payable 
 " to the owner or occupant, or to the person entitled thereto, for the 
 land so taken,",it was held that the order wasjnsuflacient.and its tender 
 did not authorize the highway commissioners to take possession of the 
 land. It should have designated the payee, so as to show on its face the 
 person to whom it was payable. IaiU v. Gurry, 10 .Mich., 397. 
 
 3274. liegislative control. The Legislature may authorize a 
 plank road company to take possession of a highway for the purposes of 
 their road. Detroit and JBCoweU Plank Road Co. v. M^Jier, 4 Mich., 37. 
 
 3275. Higliivay funds. The highway commissioners of a town- 
 ship drew orders upon the township treasurer, payable out of any 
 moneys in the treasury belonging to one of the road districts. These 
 orders were not paid, and a mandamus was applied for to compel the 
 township board to levy a, tax on the township for their payment. But 
 there being nothing in the case to show that the township had had the 
 benefit of the district ftnd, by misappropriation or otherwise, the man- 
 damus was denied. People v. TovmsMp Boaird of ZUwaukie, 10 Mich., 
 274. 
 
 WILL. 
 
 3276. Wliat essential to validity. A will is not valid unless 
 the testator not only intends, of his own free will, to make such dis- 
 position, but is capable of knowing what he is doing, of understanding 
 to whom he gives his property, and in what proportions, and whom he 
 is depriving of it as heirs, or as devisees under the will lie revokes. 
 Beaubien v. Gicotte, 13 Mich^ 459. 
 
 3277. Form. It is not necessary that any particular form of words 
 should be used to make a will. An instrument in the form of a letter 
 probated in this case. Bm Sigh, appeUant, 2 Doug., 515. 
 
 3278. By wtaat laiv governed. A will of personal property, 
 regularly .made according to the forms and solemnities required by the 
 law of the testator's domicil, is sufficient to pass such property in every 
 other country in which the same is situate. Ibid. 
 
 419 
 
§ 3286 WILLS. 
 
 3279. Under Statutes of 1838. B. S. of 1838, p. 370, § 4, was 
 merely declaratory of the right which every person had, at the common 
 Ifiw, to dispose of his personal property by will. lUd. 
 
 3280. Section fire, same page, as to the mode of execiution, as 
 amended by S. L., 1839, p. 320, § 14, which required willsto be attested 
 by three or more witnesses, applied only to wills executed within the 
 State. As to wills executed abroad by persons domiciled here, the com- 
 mon law prevailed. Ibid. 
 
 3281. By the common law, it was not essential to the validity of a 
 wiU that it should be attested by witnesses. Accordingly, it was held, 
 that a will of personal property, executed abroad, by a person who 
 died there, but whose domicil was, at the time, in Michigan, was valid 
 though not attested by three witnesses. IMd. 
 
 3282. Construction. The general words in a will may be re- 
 strained in their meaning, or rejected entirely, to carry out the inten- 
 tion of the testator. So general words may be construed by the parti- 
 cular words which follow. Ja/meson et. al., appellants, 1 Mich., 99. 
 
 3283. A will, after devising the real estate of the testator, contained 
 the following clause : "It is my wiU that all my furniture and property 
 be in common to my beloved wife, Elizabeth, and daughter Jane, so 
 long as they live and keep house together, and that whenever they se- 
 parate or break up house keeping, that the furniture be divided between 
 them, at their own discretion, and the stock of cattle to be given up to 
 my beloved wife Elizabeth, for her sole use and behoof " Sdd, that a 
 claim which the testator had against the Chippewa Indians, and which 
 was allowed and paid over to the executor under a treaty concluded 
 after the testator's death, did not pass under the will to the widow and 
 daughter. Ibid. 
 
 3284. Rule in Shelly's case. A will contained the following 
 clause : I give and bequeath to my beloved son, G. C, the farm I now 
 reside on, for and during his life time, with all the appurtenances there- 
 on ; and after his decease, then the right, title and appurtenances of the 
 aforesaid farm is to become the property of the said G. C.'s male heirs. 
 Held, that G. C. took an estate tail, which, by statute— Code of 1837, p. 
 361 ; see Comp. L., § 3587 — ^was changed into a fee simple. Fraser v. 
 Ohene, 3 Mich., 81. The rule in Shelly's case is now abolished in this 
 State by statute. Comp. L., § 2613. 
 
 3285. Restraints upon alienation. Provisions in restraint 
 of alienation are not to be favored. WcAton v. Torrey, Har. Ch., 359. 
 
 3286. The provision in a will that the estate shall remain undivided 
 until the youngest of the devisees becomes of the age of twenty one 
 years, is not such a limitation 'as will inhibit any one of the devisees 
 from conveying his interest in the premises. Ibid. 
 
 420 
 
"WILLS. § 329S 
 
 32S7. Where a will provided that each disposal of real estate made 
 by it should only he for the use and benefit of the persons in whose 
 favor it was made, his or her life lasting ; that no parcel of the real estate 
 should be sold or alienated in any manner, but after the decease of 
 those several to whom shares or parcels of the estate were assigned, 
 said shares should remain for the use and benefit of the descendants of 
 him or her to whom a share had been assigned, their lives lasting, and 
 so on ; and in case of demise without posterity, the said share should 
 accrue to the use and benefit of the owners being of the testator's rela- 
 tions or descendants, their lives lasting, of the next share or shares, and 
 so on, as long as any posterity should exist, and in case of extinction, to 
 the next heirs ; — it was held that the will, inasmuch as it sought to cre- 
 ate an indefinite succession of life estates, and to render the property 
 inalienable, was void as being against the policy of the law. St. Armour 
 V. Biva/rd, 2 Mich., 394. 
 
 328§. Such devise cannot be sustained as an executory devise. An 
 executory devise directing limitations beyond the period allowed by 
 law, is void for the whole, and not merely for the excess beyond the 
 legal period. Ibid. 
 
 3ii§9. Cy pre§. The ey pres doctrine cannot be applied in sup- 
 port of a will of this description, there being no general intention of the 
 testator, not conflicting with the law, which the Court could sustain by 
 sacrificing the testator's particular Intention. Ibid. 
 
 3290. Section 5, title 1, part 2, R. S. 1838, provided that " When 
 lands are given by deed or will to any person for life, and after his death 
 to his heirs in fee, or by words to that effect, the conveyance shall be con- 
 strued to vest an estate for life only in such first taker, and a remainder 
 in fee simple in his heirs." See Oomp. L., § 3612. It is not competent 
 under this section so to construe the above devise (supra 3287) as to 
 give a life estate to the first takers, remainder over in fee to the second 
 takers. Ibid. 
 
 3291. Po'wer in trust. A testator by his will directed his ex- 
 ecutors or administrators to sell his real estate to the best advantage* 
 and invest the proceeds. Held that this was a general power in trust, 
 and that the executors or administrators were authorized to sell and 
 convey such real estate without a license from the Probate Court. 
 BatteUe v. Parks, 3 Mich., 531. 
 
 3292. Probate. The averments on the part of the propounder 
 of a will should include everything necessary to constitute it a valid will 
 under the statute, so that a verffict finding the truth of those aver- 
 ments, without more, would bring the will within all the express re- 
 quirements of the statute. He must therefore aver the soundness of 
 
 431 
 
§ 3398 WILLS. 
 
 mind of tlie testator at the time the will was executed. Beaubien v. 
 Cicotte, 8 Mich., 9. 
 
 3293. "WTtio may contest. Where the will of a father ap- 
 points a testamentary guardian for his minor child, (whose mother is 
 deceased) the grandfather, or other next of kin, is entitled to appear 
 and contest its yalidity, and to appeal from an order admitting it to pro- 
 bate. Taffv. Sosmer, 14 Mich. 
 
 3294. Practice fn probate cases. Where the validity of a 
 will is contested, the proponents open and close the case, both with the 
 evidence and on the argument. And where the issue is as to the com- 
 petency of the decedent, they are not required to do more at the outset 
 than to make a prima facie showing on that point, and the case will be 
 fuHy open to affirmative proofs on their part after the contestants have 
 put in their evidence. Xhff v. Sosmer, 14 Mich., (second case). 
 
 329'3. evidence on probate. The burden of proof is on the 
 propounder of a will to show the soundness of mind of the testator at 
 the time of its execution. But upon questions of evidence, growing out 
 of any presumption of sanity affecting the burden of proof, the Court 
 express no opinion. Beaubien v. Cicotte, 8 Mich., 9. 
 
 3296. Wliere a subscribing witness to a wiU was called to prove it 
 upwards of thirty years after its date, and testified that he signed it as a 
 witness, but that he had no distinct recollection of seeing the testatrix 
 sign it ; Hdd, that questions to him whether, looking at the attestation 
 clause, he had any doubt she signed it in Ms presence, and whether he 
 ever witnessed an instrument in that form without knowing what it 
 was, and whether he had any doubt that the persons whose names 
 were to it were present at the time of its execution, were not incompe- 
 tent, and it was for the jury to ^ve such weight to his evidence in 
 answer thereto as they might think it entitled to under all the circum- 
 stances of the case. Lawyer v. Smith, S Mich., 411. 
 
 3297. After the death of a testatrix, a will twenty-five years old was 
 discovered in a barrel, among waste papers, and either worn or torn 
 into several pieces, which were scattered loose among the papers in the 
 barrel. Whether the injury to the instrument was done by the testa- 
 trix, or by some other person, and if by her, whether accidentally, or 
 intentionally and for the purpose of revoking the will, are questions of 
 fact for the jury ; and to aid them in determining these questions, and 
 not as separate and independent evidence of a revocation, the declara- 
 tions of the testatrix, made after the date of the will, that she had de- 
 stroyed it, are competent evidence. IMd. 
 
 329S. Bequests to religious societies. The last clause of 
 § 35 of the Act concerning Churches and Religious Societies — Comp. 
 L., § 3033— which makes void certain bequests to the amount of $100 
 433 
 
MAXIMS OF THE LAW. § 3304 
 
 or more, made to religious societies by last will, unless the will is proved 
 in open Court by three subscribing witnesses, does not apply to wills 
 executed before the act took effect ; and consequently bequests to re- 
 ligious societies to the amount of $100 or more, made by a last will 
 executed before that time, having two subscribing witnesses only, may 
 be valid, notwithstanding the death of the testator occurred after the 
 act took effect. American Baptist Missionary Union v. Peck, 10 Mich., 
 341. 
 
 3299. The sections in said act relating to gifts, bequests, &c., to 
 religious societies, refer to such societies and organizations as exercise 
 their functions in this State, and are therefore within legislative control 
 so far as their temporal aflfafrs are concerned ; and do not embrace for- 
 eign corporations or associations. Matter of the Tieknor Estate, 13 
 Mich., 44. 
 
 3300. The receipt of money under the will, or the institution of 
 legal proceedings to recover it, are not the exercise of such corporate 
 franchises as are forbidden by said act to any but domestic corporations. 
 Ibid. 
 
 3301. Bequest to unincorporated association. A be- 
 quest of money generally, and not upon permanent uses, to an unincor- 
 porated association capable of clear identity, is valid. Ibid. 
 
 WITNESS. 
 
 3302. A verdict of guilty on a charge of perjury, did not, at the 
 eommon law, without judgment, render the defendant infamous, so as 
 preclude his being a competent witness. Smith v. Brown, 3 Mich., 161. 
 
 3303. Defendant, after filing a sworn answer in chancery, was in- 
 dicted and tried for perjury contained in it, and verdict of guilty ren- 
 dered. He then moved an arrest of judgment and for a new trial ; but 
 before these motions were disposed of, died. It was held that the ver- 
 dict could not be used for the purpose of discrediting his answer in the 
 chancery suit. Ibid. 
 
 3304. That where one is on trial for continuing an alleged nuisance, 
 witnesses for the prosecution may be questioned as to their interest in 
 procuring a conviction, with a view to its effect upon their evidence, 
 see Crippen v. People, 8 Mich., 117. 
 
 MAXIMS OF THE LAW. 
 
 Following are a few familiar legal maxims, with a reference to de- 
 cisions illustrative of them, reported in the Michigan Reports. 
 
 433 
 
§ 3309 MAXIMS OF THE LAW. 
 
 3305. Re8 inter altos. A transaction between two parties ought 
 not to operate to the disadvantage of a third. 
 
 Stockton v. Williams, 1 Doug., 546. 
 Campau v. Dewey, 9 Mich., 881. 
 
 (Adjudications to which the claimant was not a party.) 
 Dawson v. Hall, 3 Mich., 390. 
 Glover v. Alcott, 11 Mich., 470. 
 Benedict v. Denton, Wal. Ch., 336. 
 Homer v. Fellows, 1 Doug., 51. 
 Converse v. Blumrick, 14 Mich. 
 Lockwood V. Beckwith, 6 Mich., 168. 
 
 (Admissions or declarations by third parties.) 
 Russell V. Waite, Wal. Ch., 31. 
 Dutton V. Ives, 5 Mich., 515. 
 Nichols V. Lee, 10 Mich., 536. 
 Millerd v. Reeves, 1 Mich., 107. 
 Converse v. Blumrick, 14 Mich. 
 
 (Assignment by one party not to aflfect rights of another.) 
 
 3306. Argnmentnin ab inconvenienti. An argument 
 drawn from inconvenience is forcible in law. 
 
 Emerson v. Atwater, 7 Mich., 13. 
 Clark V. Mowyer, 5 Mich., 463. 
 
 3307. Conclusiveness of adjudication. No man ought to 
 be twice vexed for one and the same cause. 
 
 ^--Delavan v. Bates, 1 Mich., 97. 
 Prentiss v. Holbrook, 2 Mich., 373. 
 Van Kleek v. Eggles^on, 7 Mich., 511. 
 - McGraw v. Pettibone, 10 Mich., 530. 
 — - Tucker v. Rohrback, 13 Mich., 73. 
 
 330S. Jurisdiction. Consent cannot confer jurisdiction. 
 
 Beach v. Botsford, 1 Doug., 199. 
 
 Clark V. Holmes, 1 Doug., 390. 
 
 Spear v. Carter, 1 Mich., 19. 
 
 Wilson V. Davis, 1 Mich., 156. 
 
 Shadbolt v. Bronson, 1 Mich., 85. 
 
 Farrand v. Bentley, 6 Mich., 381. 
 
 Bennett v. Nichols, 13 Mich., 33. 
 
 People V. Smith, 9 Mich., 193. 
 
 3309. Omnia rite acta. All acts are presumed to have been 
 rightly and regularly done. 
 Comstock V. Hollon, 2 Mich., 355. 
 Bumham v. People, 3 Mich., 195. 
 434 
 
MAXIMS OF THE LAW. § 3311 
 
 Rash V. Whitney, 4 Mich., 495. 
 
 Sweetzer v. Mead, 5 Mich., 33 and 107. 
 
 Achey v. Hull, 7 Mich., 423. 
 
 Maynard v. Penniman, 10 Mich., 153. 
 
 Kermott v. Ayer, 11 Mich., 181. 
 
 Morrissey v. People, 11 Mich., 327. 
 
 Dann v. Cudney, 13 Mich., 329. 
 
 Farmers and Mechanics' Bank v. Troy City Bank, 1 Doug., 457. 
 
 Gaines v. Belts, 2 Doug., 98. 
 
 Snow V. Perkins, 2 Mich., 238. 
 
 (Correctness of judicial proceedings.) 
 Newberry v. Trowbridge, 13 Mich., 263. 
 
 (Res judicata.) 
 Savier v. Chipman, 1 Mich. 116. . 
 
 (Obedience to law.) 
 Buck T. Sherman, 2 Doug., 176. 
 Orr V. Lacey, 2 Doug., 230. 
 Hollister v. Loud, 2 Mich., 309. 
 Baldwin v. Buckland, 11 Mich., 389. 
 Booth V. McNair, 14 Mich. 
 Nye V. Van Husan, 6 Mich., 829. 
 Leavitt v. Leavitt, 13 Mich., 452. 
 
 (Honesty rather than fraud.) 
 Benedict v. Denton, Wal. Ch., 336. 
 
 (Seal of corporation presumed properly aflixed.) 
 Lacey v. Davis, 4 Mich., 140. 
 
 (Quorum of supervisors presumed present.) 
 
 3310. Equity. He who seeks equity must do equity. 
 Michigan State Bank v. Hammond, 1 Doug., 527. 
 Morris v. Hoyt, 11 Mich., 9. 
 
 3311. Consensus tollit errorem. The acquiescence of a 
 party who might take advantage of an error obviates its effect. 
 
 Falkner v. Beers, 2 Doug., lt\ 
 Stewart v. Hill, 1 Mich., 265. 
 Crane v. Hardy, 1 Mich., 56. ' 
 Vanderhoof V. Dean, 1 Mich., I 
 Webb V. Mann, 3 Mich., 139. j 
 Shaw V. Moser, 3 Mich., 71. 
 Wells V. Scott, 4 Mich., 347. 
 McBride v. Cicotte, 4 Mich., 4|8. V ' 
 Durfee v. McClurg, 5 Mich., 53° ^ 
 Tower v. Lamb, 6 Mich., 362. 
 
 425 
 
6.0(, 
 
 § 3317 MAXIMS OF THE LAW. 
 
 Johnstone v. Scott, 11 Mich., 233. 
 
 Brown v. Bissell, 1 Doug., 273. 
 
 Owners of Ship Milwaukee v. Hale, 1 poug., 306. 
 
 Higley v. Lant, 8 Mich., 613. 
 
 Higgins T. Carpenter, Har. Ch., 356. 
 
 Brooks V. Mead, Wal. Ch., 389. \X 
 
 ("Waiver in judicial proceedings.) 
 Newberry v. Trowbridge, 13 Mich., 268. 
 
 (Payment by itdorser after defective notice.) 
 People V. Oakland County Bank, 1 Doug., 282. 
 
 ("Waiver of forfeiture of corporate rights.) 
 
 3312. Dwelling house. Every man's house is his castle. 
 Pond V. People, 8 Mich., 150. 
 
 People V. Horton, 4 Mich., 67. 
 
 3313. STeiuo est haeres viventis. No one can be heir during 
 the life of his ancestor. 
 
 Eeady v. Kearsley, 14 Mich. 
 
 (Deed to one named, " or his heirs," held good.) 
 
 3314. Actions based on illegal transactions. A tight 
 of action cannot arise from the party's own wrong. 
 
 Adams v. Hamel, 2 Doug., 73. 
 
 Byrne v. Beespn, 1 Doug., 179. 
 
 Bank of Michigan v. Niles, 1 Mich., 401, and "Wal. Ch., 99. 
 
 Orr V. Lacey, 3 Doug., 230. 
 
 Wells V. Kiver Raisin and Grand River R. R. Co., Wal. Ch., 35. 
 
 (Illegal contracts.) 
 Bagg V. Jerome, 7 Mich., 145. 
 
 (Illegal contract performed.) 
 
 3313. IVudum pactum. No action arises from a bare promise. 
 
 Hallv. Soule, 11 Mich., 494. 
 
 Rood V. Jones, 1 Doug., 188. 
 
 Austin V. Grant, 1 Mich., 490. 
 
 Bishop V. Pelch, 7 Mich., 871. 
 
 Colman v. Post, 10 Mich., 433 
 
 Davis V. Rider, 5 Mich., 423. 
 
 3316. Agency. The act which one does through another he is 
 considered as doing himself. 
 
 Peoria Marine and Fire Insurance Co. v. Hall, 12 Mich., 202. 
 Niagara Fire Insurance Co. v. De Grafif, 12 Mich., 124. 
 
 3317. Respondeat superior. Let the principal be held re- 
 sponsible. 
 
 436 
 
MAXIMS OF THE LAW. § 3324 
 
 De Forest v. Wright, 2 Mich., 368. 
 
 Moore v. Sanborne, 2 Mich., 519. 
 
 City of Detroit v. Corey, 9 Mich., 165. 
 
 Michigan Central E. E. Co. v. Leahey, 10 Mich., 199. 
 
 3318. Ratification. A subsequent ratification is equivalent to a ' 
 prior command. 
 
 Newsom v. Hart, 14 Mich. 
 
 Peninsular Bank v. Hanmer, 14 Mich. 
 
 Scott V. Detroit Young Men's Society's Lessee, 1 Doug., 119. / 
 
 3319. Liand ownership. He who possesses the soil, possesses 
 also that which is above it. 
 
 Lorman v. Benson, 8 Mich., 18. 
 Eice V. Euddiman, 10 Mich., 125. 
 
 3320. Fictions of Ia^«r. a legal fiction is always consistent 
 with equity. 
 
 Whipple V. Farrar, 3 Mich., 436. 
 
 (Sheriff's deed relating back to sale). 
 Newsam v. Hart, 14 Mich. 
 
 (Eatification cannot avail when judgment of the principal was 
 required). 
 Bacon v. Kimmel, 14 Mich. 
 
 (Title by judicial proceedings cannot relate back so as to make 
 innocent acts trespasses.) 
 Quirk V. Thomas, 6 Mich., 76. 
 
 (Whether mistake in fraudulent deed can be corrected on behalf 
 of purchasers.) 
 
 3321. Idem eonans. The name is the same where the pronun- 
 ciation is the same. 
 
 People V. Mayworm, 5 Mich., 146. 
 People V. Tisdale, 1 Doug., 59. 
 
 3322. Construction of instruments. The words of an in- 
 strument shall be taken most strongly against the party employing 
 them. 
 
 Cicotte V. Gagnier, 2 Mich., 381. 
 
 3323. Latent ambiguity, being raised by extrinsic evidence, may be 
 removed in like manner. 
 
 Ives V. Kimball, 1 Mich., 308. 
 
 3324. In the absence of ambiguity, no exposition shall be made 
 which is opposed to the express words of the instrument. 
 
 Sutherland v. Crane, Wal. Ch., 523. 
 Jones v. Phelps, 5 Mich., 218. 
 
 Adair v. Adair, 5 Mich., 204. 
 
 427 
 
§ 3030 MAXIMS OF THE LAW. 
 
 Harvey v. Cady, 8 Mich., 439. 
 Holmes v. Hall, 8 Mich., 66. 
 Erwln V. Clark, 13 Mich., 10. 
 Schwarz v. Wendell, Wal. Ch., 367. 
 Barstow v. Smith, Wal. Ch., 394. 
 Bidwell V. Whittaker, 1 Mich., 469. 
 
 3325. That is certain which is capahle of being made certain. 
 Daily V.Litchfield, 10 Mich., 29. 
 
 3326. Surplusage does not vitiate that which in other respects is 
 good and valid. 
 
 Anderson v. Baughman, 7 Mich., 69. 
 
 Regents of University v. Detroit Young Men's Society, 12 Mich., 
 138. 
 Sweetzer v. Mead, 5 Mich., 107. 
 
 3327. Mere false description does not make an instrument inoper- 
 ative. 
 
 Johnstone v. Scott, 11 Mich., 232. 
 Anderson v. Baughman, 7 Mich., 69. 
 Cooper V. Bigley, 18 Mich., 463. 
 
 3328. The best and surest way of expounding an instrument, is by 
 referring to the time when, and the circumstances under which it was 
 made. 
 
 Paddack v. Pardee, 1 Mich., 421. 
 
 Norris v. Showerman, Wal. Ch., 206, and 3 Doug., 16. 
 
 Ives V. Kimball, 1 Mich., 308. 
 
 Facey v. Otis, 11 Mich., 313. 
 
 Bronson v. Green, Wal. Ch., 56. 
 
 Norris V. Hill, Wal. Ch., 303. 
 
 3329. IMortg^ages. Once a mortgage always a mortgage. 
 Batty V. Snook, 5 Mich., 281. 
 
 Thompson v. Mack, Har. Ch., 150. 
 Comstock V. Howard, Wal. Ch., 110. 
 Thurston v. Prentiss, 1 Mich., 193. 
 
 3330. Tigilance. The laws assist those who are vigilant, not 
 those who sleep over their rights. 
 
 Whipple V. Parrar, 3 Mich., 436. 
 Graydon v. Church, 7 Mich., 36. 
 
 (Account of profits refused to one who had been remiss in per- 
 fecting or asserting his right.) 
 Benedict v. Thompson, Wal. Ch., 446. 
 
 (Re-hearing refused where right to appeal lost by delay.) 
 Wright V. King., Har. Ch., 12. 
 428 
 
MAXIMS OF THE LAW. § 3333 
 
 Roberts v. Miles, 13 Mich., 367. 
 Wixom V. Davis, Wal. Ch., 15. 
 
 (Relief refused after judgment.) 
 Came v. Hall, 7 Mich., 159. 
 Lathrop v. Hicks, 3 Doug., 333. 
 Matter of Lantis, 9 Mich., 334. 
 Johnson v. Johnson, "Wal. Ch., 309. 
 Thayer V. Swift, "Wal. Ch., 384. 
 Spafford v. Beach, 3 Doug,, 150. 
 People V. Judges of Calhoun Circuit Court, 1 Doug., 417. 
 
 (Relief refused on ground of laches.) 
 
 3331. Innocence. Every q^an is presumed innocent until 
 proved guilty. 
 Maher v. People, 10 Mich., 312. 
 People V. Qetchell, 6 Mich., 496. 
 Durant v. People, 13 Mich., 351. 
 
 3333. ETidence. No man is to he compelled to criminate him- 
 self: 
 People V. Thomas, 9 Mich., 314. 
 Carne v. Litchfield, 3 Mich., 340. 
 
 3333. The best evidence of which the nature of the case admits must 
 be produced. 
 Jones V. Phelps, 5 Mich., 318. 
 
 (Suit brought before subscribing witness.) 
 Higgins V. "Watson, 1 Mich., 438. 
 Rash V. "Whitney, 4 Mich., 495. 
 
 (As to sufficiency of search for lost papers.) 
 People V. Dennis, 4 Mich., 609. 
 Lacey v. Davis, 4 Mich., 140. 
 Norvell v. McHenry, 1 Mich., 227. 
 Van Kleek v. Eggleston, 7 Mich., 511. 
 
 (Proof of lost papers or records.) 
 Jackson v. Evans, 8 Mich., 476. 
 
 (Party's own books as evidence.) 
 Schwarz v. Wendell, Wal. Ch., 267. 
 Hunt V. Thorn, 3 Mich., 313. 
 
 (Admissions not to vary written instruments.) 
 Stockton V. Williams, 1 Doug., 546. 
 Campau v. Dewey, 9 Mich., 381. 
 
 (Hearsay and reputation on questions of identity.) 
 Scott V. Detroit Young Men's Society's Lessee, 1 Doug., 119. 
 Ready v, Kearsley, 14 Mich. 
 
 489 
 
§ 3337 MAXIMS OF THE LAW. 
 
 Thompson v. Kichards, 14 Mich. 
 
 (Proof of conveyance by parol evidence.) 
 Moore v. People, 3 Dcug., 420. 
 Piatt V. Stewart, 10 Mich., 260. 
 Angell V. Kosenbury, 12 Mich., 241. 
 
 (Records must be proved as a whole.) 
 Kermott v. Ayer, 11 Mich., 181. 
 People V. Lambert, 5 Mich., 346. 
 
 (Proof of foreign statutes must be by copies.) 
 
 3334. Judicial immunity. A wrongful intent is not to be 
 presumed in one who acts under judicial authority. 
 
 Ward V. Cozzens, 8 Mich., 253. 
 Ortman v. Greenman, 4 Mich., '•291. 
 People V. Eix, 6 Mich., 144. 
 
 3335. Audi alteram partem. No man should be condemned 
 unheard. 
 
 Buck V. Sherman, 3 Doug. 176. 
 
 Ames V. Port Huron Log Driving and Booming Co., 11 Mich., 189. 
 
 Palmer v. Oakley, 3 Doug., 483. 
 
 Montgomery v. Henry, 10 Mich., 19. 
 
 Freeman V. Freeman, 1 Mich., 480. 
 
 Outwite V. Porter, 13 Mich., 533. 
 
 3336. Judge interested. No man can be Judge in his own 
 cause. 
 
 Ames V. Port Huron Log Driving and Booming Co., 11 Mich., 139. 
 Walton V. Torrey, Har. Ch., 259. 
 
 3337. De minimis, &c. The law does not concern itself about 
 trifles. 
 
 Hickey v. Baird, 9 Mich., 32. 
 
 (Erroneous judgment aflBrmed where only nominal damages in- 
 volved.) 
 430 
 
A TABLE 
 
 OF THE 
 
 REPORTED CASES 
 
 CONTAINED IN THIS DIGEST. 
 
 The following table contains all the cases reported in the several vol- 
 umes of Michigan decisions hitherto issued, together with some of the 
 most important now decided and to be reported in 14th Michigan Ee- 
 ports. 
 
 Under the proper title of each case will be found a reference to the 
 sections of this work where the points decided therein are stated, with 
 the title of the subdivision in which the section occurs. 
 
 Each case is given twice ; first, by the proper title, and second, with 
 the parties reversed ; but it has not been deemed important to repeat 
 the references. There will also be found under each case which has 
 been subsequently cited in the Reports, a reference to the book and 
 page when the citation occurs. If the case has subsequently been over- 
 ruled or modified, that fact is also stated. 
 
 Abbott, Galpin v. 
 
 Abbott V. Godfroy's heirs, 1 Mich., 178. 
 
 Equity, 1216, 1278 ; Mortgage of Lands, 2312 ; Ordinance of 1787, 
 
 2450. 
 
 Cited, 5 Mich., 213. 
 Acer, Boardman v. 
 Achey v. Hull, 7 Mich., 423. 
 
 Damages, 975 to 977 ; Error, 1562, 1589 ; Justices Courts, 2153 ; 
 
 Trespass to Lands, 3172. 
 Adair v. Adair, 5 Mich., 204. 
 
 Contracts, 674 ; Evidence, 1763 ; Mortgage of Lands, 2856 ; Pay- 
 ment, 2497. 
 Adams, Matter of, 7 Mich., 453. 
 
 Comity between States, 548. 
 
TABLE OF CASES. 
 
 Adams v. Bradley, 13 Mich., 346, 
 
 Deed, 1026 ; Equity, 1161, 1363, 1374, 1357. 
 Adams v. Hamell, 3 Doug., 78. 
 
 Contracts, 680. 
 
 Cited, 12 Micli., 379. 
 Adwards, People v. 
 ^tna Insurance Co., Van Blarcom v. 
 Agent of State Prison v. Lathrop, 1 Mich., 438. 
 
 Agent of State Prison, 96 ; Pleadings, 3573. 
 Albany City Bank v. Dorr, Wal. Ch., 317. 
 
 Equity, 1196, 1305, 1333. 
 Albany City Bank v. Steevens, Wal. Ch., 6. 
 
 Equity, 1515 to 1517. 
 Alcott, Glover v. 
 Alden, Cooper v, 
 Alderman v. People, 4 Mich., 414. 
 
 Attorneys, &c., 331 ; Criminal Law, 834, 837 to 839, 929. 
 
 Cited, 10 Mich., 310. 
 Alderton v. Buchoz, 3 Mich., 333. 
 
 Frauds, Statute of, 1908. 
 Aldrich y. Maitland, 4 Mich., 205. 
 
 Judgments, 2100, 3101 ; Justices Courts, 2157, 3158. 
 Aldrich, Wetmore v, 
 Allen, Connor v. 
 Allen V. McKibben, 5 Mich., 449. 
 
 Action, 49 to 53. 
 Allen, Phcenix Insurance Co. v. 
 Allison V. Chandler, 11 Mich., 543. 
 
 Damages, 961 to 969. 
 Allison, Chandler v. 
 Allison, Piquet v. 
 Amberg v. Rogers, 9 Mich., 333. 
 
 Taxation, 3081, 3083, 3114. 
 
 Cited, 13 Mich,, 416. 
 Amboy Lansing and Traverse Bay Railroad Co. v, Byerly, 13 Mich., 
 
 439. 
 
 Practice in Circuit Courts, 3699, 3700. 
 American Baptist Missionary Union v. Peck, 9 Mich., 445. 
 
 Error, 1573, 1574. 
 American Baptist Missionary Union v. Peck, 10 Mich., 341. 
 
 "Wills, 3298. 
 American Transportation Co. v. Moore, 5 Mich., 368. 
 
 Carriers of Goods, 485, 486 ; Constitutional Law, 591 ; Error, 1554 
 
 Practice in Circuit Courts, 2657. 
 
 Cited, 6 Mich., 357 ; 7 Mich., 240, Affirmed by Supreme Court of U. 
 
 8., 24 How., 1. 
 Ames V. Port Huron Log Driving and Booming Co., 6 Mich,, 266. 
 
 Constitutional Law, 611 ; Log Driving and Booming Co.'s, 3236 to 
 
 3339. 
 
 Cited, 11 Mich., 146, 155; 13 Mich., 499. 
 Ames V, Port Huron Log Driving and Booming Co., 11 Mich., 139. 
 
 Constitutional Law, 611, 633, 633, 635 ; Prmcipal and Agent, 3837. 
 Amperse v. Bordeno, 14 Mich. 
 
 Husband and Wife, 3013. 
 Anderson v. Baughman, 6 Mich., 398. 
 
 Practice in Supreme Court, 3799, 
 Anderson v. Baughman, 7 Mich,, 69. 
 
 Deed, 1003 to 1005. 
 13 Mich., 477. 
 
TABLE OP CASES. 
 
 Anderson v, Birco, 3 Mich., 380. 
 
 Certiorari, 532. 
 Anderson, Logan v, 
 Anderson, Trudo v. 
 Andrews, Drake v, 
 Andrews v. Kibbee, 12 Mlcli,, 94. 
 
 Equity, 1260, 1261, 1317, 1321, 1323. 
 Andrews, Kibbee v. 
 Angell V. Rosenbury, 12 Midi., 241, 
 
 Assignment, 317, 227, 232, 233, 234,252; Error, 1555; Evidence, 
 1674, 1785; Practice in Circuit Courts, 2693. 
 Angell, Rosenbury v. 
 Ankrim v. Woodworth, Har. Cli., 355, 
 
 Equity, 1110. 
 Annisv. People, 13 Mich., 511. 
 
 Criminal Law, 905, 906, 932, 984, 935 : Evidence, 1688, 1639. 
 Arctic Mining Co., Carson v. 
 Armstrong, Bassett v. 
 Arnold v. Nye, 11 Mich., 456. 
 
 Affidavit, 93, 
 Arnold, Wilson v, ^ 
 
 Ash v. People, 11 Mich., 347. 
 
 Detroit City, 1033. 
 Atkinson, Watkins v. 
 Atterbury, Payne v. 
 Attorney-General v. Bank of Michigan, Har. Ch., 315. 
 
 Banks and Banking, 350 to 353 ; Corporations, 738, 747, 749 ; Sta- 
 tutes, 3048. 
 Attorney-General v. Detroit and Erin Plank Road Co., 3 Mich., 138. 
 Plank Road Companies, 3508 ; Statutes, 3050. 
 Cited, 12 Mich., 336, 
 Attorney-General v. Michigan State Bank, 3 Doug., 359. 
 
 Pleadings, 3533 ; Quo Warranto, 3889, 3890. 
 Attorney-General v. Oakland County Bank, Wal. Ch., 90. 
 
 Banks and Banking, 341, 350, 354 ; Corporations, 719, 720, 747 : 
 Equity, 1351, 1341, 1343, 1408, 1412, 1413. 
 Cited, 2 Mich., 147 ; 13 Mich., 71 ; Wal. Ch., 395. 
 Attorney-General v. Supervisors of St. Clair, 11 Mich., 63. 
 
 Counties, 761. 
 Atwater, Emerson v. 
 Atwater v. Kinman, Har. Ch., 343. 
 
 Equity, 1383 ; Mortgage of Lands, 3363. 
 Atwater v. Streets, 1 Doug., 455. 
 
 Bills and Notes, 416. 
 Atwood V. Gillett, 3 Doug., 306. 
 
 Evidence, 1773 ; Partnership, 2480, 3488. 
 CUed, 3 Mich., 326. 
 Auditor-General, People v. 
 
 Auditor-General, Mich. Sou. and Nor. Ind. R. R. Co. v. 
 Auditors of Wayne, People v. 
 Austin V. Grant, 1 Mich., 490. 
 Mortgage of Lands, 3333. 
 Austin, Smith v. 
 Austin V. Strong, 1 Mich., 359. 
 
 Appeal from Justices' Court, 164, 167. 
 Avery v. Payne, 12 Mich., 540. 
 
 Equity, 1183, 1183, 1511. 
 Avery, Payne v. 
 Axford, Clark v. 
 
TABLE OF CASES. 
 
 Ayer, Kermott v. 
 
 Bachelor v. Nelson, Wal. Ch., 449. 
 
 Equity, 1465, 1483, 1484. 
 Backus V. Byron, 4 Mich., 535. 
 
 Attorneys, &c., 318. 
 Bacon, Morse v. 
 Bacon v. County of Wayne, 1 Mich., 461, 
 
 Attorneys, &c., 312. 
 Bacon v. Kimmel, 14 Mich. 
 
 Judgments, 2085 ; Mortgage of Chattels, 2384. 
 Bagg V. City of Detroit, 5 Mich., 66. 
 
 Questions Beserved, 2871 to 2877. 
 Bagg V. City of Detroit, 5 Mich., 336. 
 
 Detroit City, 1035. 
 Bagg V. Jerome, 7 Mich., 145. 
 
 Contracts, 685 ; Fraud, &c., 1882, 1884, 1889 ; Prohibitory Liquor 
 Law, 2857. 
 
 Cited, 7 Mich., 530 ; 8 Mich., 48 ; 12 Mich., 136. 
 Bagg, Welch v. 
 
 Bailey v. De Grafl; 2 Doug., 169. 
 Appeal from Chancery, 144. 
 Bailey v. Gould, Wal. Ch.,^478. 
 
 Equity, 1498 ; Mortgage of Lands, 2345, 3354 ; Payment, 2498 ; 
 Principal and Surety, 2837. 
 Cited, 6 Mich. 74 ; 9 Mich., 31. 
 Bailey, Gould v. 
 Bailey v. Murphy, Wal. Ch., 305. 
 
 Equity, 1528, 1529. 
 Bailey v. Murphy, Wal. Ch., 434. 
 
 Banks and Banking, 340. 
 Bailey, White v. 
 Baird, Hickey v. 
 Baker, Barnes v. 
 Baker v. Pierson, 5 Mich., 456. 
 
 Appeal from Chancery, 107 ; Equity, 1527 ; Mortgage of Lands, 
 3341. 
 
 Cited, 9 Mich., 233 ; 13 Mich., 36. 
 Baker v. Pierson, 6 Mich., 533. 
 Mortgage of lands, 2388, 
 Cited, 13 Mich., 478. 
 Baldwin v. Buekland, 11 Mich., 389. 
 Assignment, 335, 232, 334, 335. 
 Baldy, Boecher v. 
 Bancroft V. Peters, 4 Mich., 619. 
 
 Carriers of Goods, 501 ; Evidence, 1777. 
 Bank Commissioners v. Bank of Brest, Har. Ch., 106. 
 
 Assignment, 215 ; Banks and Banking, 337, 344, 348, 349. 
 Criticised, 2 Doug., 541, et seq. 
 Bank of Brest, Bant Commissioners v. 
 Bank of Lansingburgh, Ives v. 
 Bank of Lansingburgh, Nevius v. 
 Bank of Michigan, Attorney-General v. 
 Bank of Michigan, Chene v. 
 Bank of Michigan v. Niles, Wal. Ch., 99. 
 
 Banks and Banking, 339 ; Contracts, 683 ; Specific Performance, 
 3013, 
 
 Affirmed, 1 Doug., 401. 
 Bank of Michigan v. Niles, Wal. Ch., 398, 
 Equity, 1373, 1374, 1376, 1377. 
 
TABLE OF CASEa 
 
 Bank of Michigan v. Niles, 1 Doug., 401. 
 
 Contracts, 683 ; Corporations, 731 ; Specific Performance, 3013. 
 Bank of Michigan, Wales v. 
 Bank of Michigan v. AVilliams, Har. Ch., 319, 
 
 Equity, 1324, 1441. 
 Bank of Pontiac, Barnum v. 
 Bank of Pontiac, People v. 
 Bank of River Raisin, Town v- 
 Bank of Windsor, Pratt v. 
 Barber y. Taylor, 1 Mich., 353. 
 
 Justices Courts, 3153, 
 
 Gited, 8 Mich,, 439. 
 Barkham, Parks v. 
 Barman v. Carhartt, 10 Mich., 338. 
 
 Evidence, 1836 ; Guaranty, 1958 ; Practice in Circuit Courts, 3749, 
 Barnard, Fitzhugh v. 
 Barnard V. HinUey, 10 Mich., 458. 
 
 Action, 33, 
 Barnard v. Lapeer and Port Huron PlankRoad Co^ 6 Mich., 374. 
 
 Partnership, 3455 to 3458. 
 Barnes v. Baker, 3 Mich., 377. 
 
 Guaranty, 1933 to 1955. 
 Barnes, Kellogg v, 
 Barnes, Root v. 
 Barnum v. Bank of Pontiac, Har, Cli., 116. 
 
 Banks and Banking, 351, 353, 358 to 360. 
 Barr, Coatsworth v. 
 Barron, Clute v. 
 Barrows v Baughman, 9 Mich., 313. 
 
 Equity, 1343, 1250, 1474 ; Mechanic's Lien, 2266 ; Recording Laws, 
 
 3933 
 
 Cited, 10 Mich., 495 ; 13 Mich., 373, 
 Barrows v. Doty, Har. Ch,, 1, 
 
 Equity, 1108. 
 
 Oited, Har. Ch., 868. 
 Barstow v. Smith, Wal. Ch., 394 
 
 Acknowledgment of Deeds, 5 ; Equity, 1364, 1365 ; Statutes, 3051. 
 Barstow, Smith v. 
 Barton, McKibben v. 
 Barton, McLean v. 
 Bassett v. Armstrong, 9 Mich., 397 
 
 Contracts, 700 ; Replevin, 2938, 
 Bassett v. Hathaway, 6 Mich., 38. 
 
 Equity, 1498 ; Evidence, 1651, 1652 ; RecorcUng Laws, 3925, 
 Basto, Safford v. 
 Bates, Delevan v. 
 Bates V. Garrison, Har. Ch., 331. 
 
 Equity, 1499 
 Bates, People v. 
 Battelle v. Parks, 3 Mich., 531. 
 
 Wills, 3291, 
 Batty V. Snook, 5 Mich., 331. 
 
 Mortgage of Lands, 3313, 3336, 3337, 
 Baughman, Anderson v. 
 Baughman, Barrows v. 
 Baxter v. Robinson, 11 Mich., 530 
 
 Estates of Deceased Persons, 1597, 1393, 
 
TABLE OF CASES. 
 
 Beach v. Botsford, 1 Doug., 199. 
 
 Jurisdiction, 2136 ; Justices' Courts, 3160, 2174; Officer, 3433, 
 
 2434. 
 
 Cited, 1 Mich., 23, 160, 491, 13 Mich., 509. 
 Beach v. People, 11 Mich., 106. 
 
 Criminal Law, 881, 883. 
 Beach, Spafford v. 
 Beach v. White, Wal. Ch.,495. 
 
 Equity, 1190, 1191, 1194, 1200, 1359; Fraud, &c., 1880 ; Husband and 
 
 We, 3027, 2028. 
 
 Cited, 6 Mich., 466. 
 Beard v. Port Huron Log Driving and Booming Co., 11 Mich., 155. 
 
 IN ote to Ames v. Same Deft. 
 Beard v. Spalding, 12 Mich., 309. 
 
 Practice in Circuit Courts, 2697. 
 Beardslee v. Horton, 3 Mich., 560. 
 
 Action, 54, 57; Bills and Notes, 376; Interest, 3073; Payment,- 
 
 3501. 
 
 Cited, 8 Mich., 449 ; 13 Mich., 113. 
 Beaubien v. Cicotte, 8 Mich., 9. 
 
 Evidence, 1838 ; WiUs, 3392, 3395. 
 
 Cited, 8 Mich., 318. 
 Beaubien v. Cicotte, 12 Mich., 459. 
 
 Error, 1542 ; Evidence, 1635, 1676, 1684, 1690, 1691, 1697, 1738, 
 
 1730 to 1734, 1741 to 1745 ; Wills, 3276. 
 Beaubien, People v. 
 Beaubien v. Poupard, Har. Ch., 306. 
 
 Estates of Deceased Persons, 1601, 1603. 
 
 Cited, 3 Mich., 333 ; 11 Mich., 236. 
 Beckwith , Lockwood v. 
 Beecher v. Baldy, 7 Mich., 488. 
 
 Homestead, 1988 to 1992, 1999. 
 
 Cited, 8 Mich., 55 ; 9 Mich., 528 ; 10 Mich., 397, 540. 
 Beebee v. Young, 13 Mich., 321. 
 
 Appeal from Chancery, 129, 136. 
 Beers, Palkner v. 
 Beeson, Byrne v. 
 Beeson v. Hollister, 11 Mich., 193. 
 
 Practice in Circuit Courts, 2703, 2733. 
 Balden v. Laing, 8 Mich., 500. 
 
 Pleadings, 2566, 2567 ; Replevin, 2947, 3949. 
 Benedict v. Denton, Wal. Ch., 336. 
 
 Corporations, 734 ; Evidence, 1718. 
 Benedict v. Thompson, Wal. Ch., 446. 
 
 Equity, 1514 
 Benedict v. Thompson, 3 Doug., 299. 
 
 Appeal from Chancery, 105, 106, 141, 143. 
 Benhardv. Darrow, Wal. Ch., 519. 
 
 Equity, 1536. 
 Bennett, Heald v. 
 Bennett, Jewett v. 
 Bennett v. Nichols, 13 Mich., 23. 
 
 Appeal from Chancery, 119, 143 ; Equity. 1108, 1109, 1113, 1230. 
 
 Cited, 13 Mich., 31. 
 Bennette, McMurtrie v. 
 Benson, Lorman v. 
 Bentley, Farrand v . 
 Bergh v. Poupard, Wal. Ch„ 5. 
 
 Equity, 1369, 
 
TABLE OF CASES. 
 
 Bernard v. Bougard's heirs, Har. Ch., 130. 
 
 Equity, 1166 ; Trusts, 3177. 
 Berry, Matter of, 7 Mich., 467. 
 
 Police Court of Detroit, 3593. 
 Berry v. Lowe, 10 Mich., 9. 
 
 Certiorari, 537, 538 ; Error, 1544 ; Practice in Supreme Court, 
 
 3794. 
 
 Cited, 11 Mich., 357 ; 13 Mich., 44, 45. 
 Betts, Gaines v, 
 Biddle, Cook v. 
 Bidleman, Pegg v. 
 Bidwell, Gay v. 
 Bidwell 7. Whittaker, 1 Mich., 469. 
 
 Boat and Vessel Law, 434, 435, 437 ; Statutes, 3051. 
 
 Cited, 3 Mich., 153, 351 ; 3 Mich., 5 ; 11 Mich., 134. 
 Bigelow V. Paton, 4 Mich., 170. 
 
 Evidence, 1699 ; Gift, 1935. 
 Bigley, Cooper v. 
 Billings, Way v. 
 Brigham v. Parsons, 9 Mich., 144. 
 
 Practice in Supreme Court, 3769. 
 Birce, Anderson v. 
 Birch V. Brown, 5 Mich., 31. 
 
 Practice in Supreme Court, 3754. 
 Birchard, Catlin v. 
 Bird V. Hamilton, Wal. Ch., 361. 
 
 Contracts, 665, 669, 671 ; Partnership, 3451, 3453 ; Waiv«r, 3319. 
 
 Cited, 6 -Mich., 313. 
 Bird, Storey v. 
 Bishop V. Felch, 7 Mich., 371. 
 
 Mortgage of Lands, 3331. 
 Bishop V. Williams, WaL Ch., 433. 
 
 Equity, 1461. 
 Bissell, Brown v. 
 Bissell V. Lewis, 4 Mich., 450. 
 
 Bills and Notes, 379 to 381 -, Conflict of Laws, 573. 
 Blackmar, Dwight v. 
 Blackwood v. Van Vleet, 10 Mich., 398. 
 
 Appeal from Chancery, 118. 
 Blackwood v. Van Vleet, 11 Mich., 353. 
 
 Constitutional Law, 600 ; Ejectment, 1081 ; Equity, 1165, 1173, 1173, 
 
 1385. 
 Blair, Newell v. 
 Blanchard v. Tyler, 13 Mich., 339. 
 
 Bona Fide Purchaser, 453, 459 ; Deed, 997 i Equity, 1177 ; Estoppel, 
 
 1621. 
 Blanchard, Wanzer v. 
 Bliss V. Paine, 11 Mich., 93. 
 
 Error, 1566 -, Practice in Circuit Courts, 3638, 3889, 3746. 
 Blodgett, People v. 
 Bloomer v. Henderson, 8 Mich., 395. 
 
 Bona Fide Purchaser, 464 ; Equity, 1343, 1350,1474; Mortgage of 
 
 Lands, 3357, 2359 ; Notice, 3438 ; Possession of Lands, 3597. 
 
 CitecL, 9 Mich., 330; 10 Mich., 495; 13 Mich., 372. 
 Blumrick, Converse v. 
 
 Board of Education of Detroit, Eegents of University v. 
 Boardman v, Acer, 13 Mich., 77, 
 
 Judgments, 3093. 
 
TABLE OF CASES. 
 
 Bomier v, Caldwell, Har. Ch^ 67. 
 
 Specific Performance, 2995. 
 
 Cited, Har, Ch., 392, 
 Bomier v. Caldwell, 8 Mich., 463. 
 
 Equity, 1242 ; Specific Performance, 2995, 2996, 3004, 3007. 
 
 Cited, 13 Mich., 373. 
 Bonebright v. Pease, 3 Mich., 318. 
 
 Contracts, 714; Frauds, Statute of, 1901. 
 Bonesteel v. Todd, 9 Mich., 371. 
 
 Joint Debtors, 2076. 
 Bonhoof, Smith v. 
 Booth V, McNair, 14 Mich. 
 
 Assignment, 231, 233, 245. 
 Booth V. McQueen, 1 Doug., 41. 
 
 Bastardy, 371 ; Costs, 750. 
 Bordeno, Amperae v. 
 Bostwick V. Dodge, 1 Doug., 413. 
 
 Bills and Notes, 383. 
 
 Cited, 5 Mich., 459. Approved, 13 Mich., 539. 
 Bostwick V. Dodge, 3 Doug., 331. 
 
 Bankruptcy, 330. 
 
 Cited, 1 Mich., 37, 
 Botsford, Beach v. 
 Botsford, Sellers v. 
 Bougard, Bernard v. 
 Bourke v. James, 4 Mich., 336. 
 
 Error, 1540; Evidence, 1809; Practice in Circuit Courts, 3648,2659. 
 
 Cited, 12 Mich., 376. 
 Bowen v. Mead, 1 Mich., 432. 
 
 Principal and Surety, 2834. 
 Bower v. Town, 12 Mich., 280. 
 
 Attachment, 295. 
 Bowers, Thompson v. 
 Bowker, Fuller v. 
 Bowne v. Johnson, 1 Doug., 185. 
 
 Appeal from Justices' Courts, 157. 
 Bradbum, Eoyce v. 
 Bradley, Adams v. 
 Brady v. Northwestern Insurance Co., 11 Mich., 425. 
 
 Detroit City, 1034 ; Insurance against Fire, 2069 to 2071. 
 Bragg V. Whitcomb, Wal. Ch., 307. 
 
 Bquihr, 1399. 
 Breman, Hoag v. 
 Bresler, Cooper v. 
 Bresler v. Pendell, 12 Mich., 224. 
 
 Frauds, Statute of, 1903. 
 Brewer v. Palmer, 13 Mich., 104. 
 
 Schools, 2967. 
 Brewster, Sorrel v. 
 Brigham v. Bglinton, 7 Mich., 291. 
 
 Justices' Courts, 2172. 
 Brigham v, Gurney, 1 Mich., 349. 
 
 Bills and Notes, 422 ; Error, 1546. 
 Brigham, People v. 
 Brighton Market Bank v. Merrick, 11 Mich., 405. 
 
 Constitutional Law, 593. 
 Bristol, Smalley v. 
 Britain, Hurlbut v. 
 
TABLE OF CASES. 
 
 Britton v. Ferry, 14 Mich. 
 
 Deed, 1009. 
 Bromley v. People, 7 Mich., 473. 
 
 Criminal Law, 895 ; Error, 1584 ; Imprisonment for Debt, 3040. 
 Bronson v. Green, Wal. Ch., 56. 
 
 Contracts, 664, 666 to 688. 
 Bronson v. Green, "Wal. Ch., 486. 
 
 Equity, 1373. 
 Bronson v. Newberry, 3 Doug., 38. 
 
 Imprisonment for Debt, 3035 to 3038. 
 
 CUed, 3 Doua, 303. 
 Bronson, Shadbolt v. 
 Brooks V. Delrymple, 1 Mich., 145. 
 
 Justices' Courts, 3169 ; Practice in Circuit Courts, 3671, 
 
 Cited, 10 Mich., 160. 
 Brookis V, Hill, 1 Mich., 118. 
 
 Banks and Banking, 346. 
 Brooks V. Mclntyre, 4 Mich., 316. 
 
 Constitutional Law, 618 ; Evidence, 1661. 
 Brooks V. Mead, Wal. Ch., 389. 
 
 Equity, 1416, 1433. 
 Brown, Birch v. 
 Brown v. Bissell, 1 Doug., 373. 
 
 Practice in Supreme Court, 3763 
 
 Cited, 13 Mich., 389. 
 Brown v. Byrne, Wal. Ch., 453. 
 
 Equity, 1443. 
 Brown t. Cady, 11 Mich., 535. 
 
 Deed, 1034, 1035 ; Practice in Circuit Courts, 2744. 
 Brown, Carll v. 
 Brown, Chamberlin v. 
 Brown v. Chase, Wal. Ch., 43. 
 
 Equity, 1435 ; Evidence, 1804. 
 Brown v. Cowee, 3 Doug., 433. 
 
 Practice in Circuit Courts, 3636. 
 Brown v. Fifield, 4 Mich., 333. 
 
 Constitutional Law, 610; Husband and Wife, 3015, 3031 ; Pleadings 
 
 3570 ; Statutes, 3059. 
 Brown v. Gardner, Har. Ch., 391. 
 
 Equity, 1118, 1134, 1135. 
 Brown v. Hazen, 11 Mich., 219. 
 
 Frauds, Statute of, 1903. 
 
 Cited, 13 Mich., 15. 
 Brown, James v. 
 
 Brown, Michigan Insurance Co. v. 
 Brown, People v. 
 Brown, Smith v. 
 Brown, Stevens v. 
 Brown, Whipple v. 
 Bruce, Lynch v. 
 Bruckner's Lessee v. Lawrence, 1 Doug., 19. 
 
 Deed, 1009 ; Evidence, 1767, 1773 ; Grants, 1944. 
 
 Cited, 1 Doug., 566 ; 3 Doug., 434 ; 3 Mich., 313 ; Wal. Oh., 366. 
 Bryan v. Smith, 10 Mich., 339. 
 
 Possession of Lands, 3601, 3603 to 3605, 3617. 
 Buchegger v. Shultz, 13 Mich., 430. 
 
 Constitutional Law, 590 ; Tender, 3147. 
 Buchoz, Alderton v. 
 Buchoz v. Grandjean, 1 Mich., 367. 
 
 Arbitration and Award, 187, 188. 
 
10 • TABLE OP CASES. 
 
 Buchoz V. Lecour, 9 Mich., 334. 
 
 Equity, 1398. 
 Buck V. Sherman, 2 Doug., 176. 
 
 Appraisal Law, 186 ; Fraud, &c., 1864, 1868, 1869. 
 
 CUed, a Mich., 824. 
 Buckland, Baldwin v. 
 Buckley v. Lowry, 2 Mich., 418. 
 
 Attachment, 257, 265. 
 
 Cited, 3 Mich., 535 ; 6 Mich., 515. 
 Buckley v. Saxe, 10 Mich., 328. 
 
 Wager, 3218. 
 Buffam, Peckham v. 
 Buhl V. Kenyon, 11 Mich., 249. 
 
 Judgments, 2099. 
 BuUard v. Green, 9 Mich., 222. 
 
 Appeal from Chancery, 110. 
 
 Cited, 10 Mich., 426. 
 Bullard v. Green, 10 Mich., 268. 
 
 Equity, 1518 to 1522. 
 Bumpus V. Miller, 4 Mich., 159. 
 
 Ways, 3253 to 3256. 
 Burgan v. Lyell, 2 Mich., 102, 
 
 Partnership, 2453, 2454, 2467, 2468. 
 
 Cited, 2 Mich., 113. 
 Burgess, Peck v. 
 Burkham, Collins Iron Co. v. 
 Burkham v. Trowbridge, 9 Mich., 309. 
 
 Bills and Notes, 409 to 411. 
 
 Oited, 11 Mich., 97, 98. 
 Burnhain v. People, 3 Mich., 195. 
 
 Error, 1562. 
 Burns, People v. 
 Burpee v. Smith, Wal. Ch., 327. 
 
 Equity, 1125, 1130, 1268, 1369, 1360, 1363. 
 Burtch V. Hogge, Har. Ch., 31. 
 
 Equity, 1462; Specific Performance, 2995, 3003. 
 
 GUed, Har. Ch., 392. 
 Bush V. Dunham, 4 Mich., 339. 
 
 Possession of Lands, 2601, 3603, 3605. 
 
 Cited, 10 Mich., 335. 
 Butler, Craig v. 
 Butler V. Ladue, 13 Mich., 173. 
 
 Mortgage of Lands, 3327 to 3330. 
 Butler, IvfcDonald v. 
 Butler V. Porter, 13 Mich., 293. 
 
 Taxation, 3106, 3111. 
 Butterfleld, M.-.rgan v. 
 Butterworth, Marsh v. 
 Buys V. Bberhardt, 3 Mich., 524. 
 
 . Arbitration and Award, 305, 206. 
 Byerly, Amboy, Lansing and Traverse Bay Railroad Co. v. 
 Byram v, Gordon, 11 Mich,, 531, 
 
 Recording Laws, 2926 ; Time, 3153. 
 Byrne v. Beeson,,l Doug., 179. 
 
 Contracts, 682 ; Landlord and Tenant, 2207, 2208. 
 
 Cited, 12 Mich., 345 ; 4 Mich., 120. 
 Byrne, Brown v. 
 Byron, Backus v. 
 Cade, Hiney v. 
 
TABLE OF CASES. 11 
 
 Cady, Brown v. 
 Cady, Harvey v. 
 Caliill V. Kalamazoo Mutual Insurance Co., 3 Doug., 124. 
 
 Corporations, 726 to 728, 730, 731, 739, 744 ; Evidence, 1774 ; Plead- 
 ings, 2559 ; Practice in Circuit Courts, 2667. 
 
 Gvted, 2 Mich., 399. 
 Cahill, Merrill v. 
 Caldwell, Bomier v. 
 Caldwell v. Gale, 11 Mich., 77. 
 
 Action, 18, 19 ; Evidence, 1819 ; Stare Decisis, 3036. 
 Caldwell, Wright v. 
 Calendar v. Olcott, 1 Mich., 344. 
 
 County Clerk, 762 ; Practice in Circuit Courts, 2629, 3738 ; Sheriff, 
 
 3974. 
 Callender, Waldby v. 
 Camp, Eldred v. 
 Camp, How v. 
 Camp, Kelso v. 
 Campau v. Chene, 1 Mich., 400. 
 
 Deed, 1023 ; Equity, 1313, 1317 ; Mortgage of Lands, 3310. 
 Campau v. City of Detroit, 14 Mich. 
 
 Statutes, 3069. 
 Campau v. Dewey, 9 Mich., 381. 
 
 Ejectment, 1082 ; Evidence, 1677, 1737, 1760, 1768 ; Grants, 1940 to 
 
 1942 ; Practice in Circuit Courts, 2686 to 2688 ; Treaty, 3164, 3168, 
 
 3169. 
 
 Cited, 10 Mich., 478. 
 Campau, Dewey v. 
 Campau v. Fairbanlcs, 1 Mich., 151. 
 
 Justices' Courts, 2162. 
 
 Cited, 3 Mich., 74. 
 Camjau, Palms v. 
 Campbell, Appellant, 2 Doug., 141. 
 
 Dower, 1063, 1073. 
 Campbell, Pennoyer v. 
 Campbell, Pratt v. 
 Campbell, Quackenboss v. 
 Candee v. Clark, 3 Mich., 255. 
 
 Joint Debtors, 2075. 
 
 Cited, 9 Mich., 375, 378. 
 Canfield, Smith v. 
 Canvassers of Kent, People v. 
 Cargill V. Power, 1 Mich., 369. 
 
 Constitutional Law, 601. 
 
 Cited, 3 Mich., 624 ; 13 Mich., 337. 
 Carhartt, Barman v. 
 Carleton v. People, 10 Mich., 250. 
 
 Board of Supervisors, 433 ; Counties, 754 to 757. 
 
 Cited, 10 Mich., 147. 
 Carll V. Brown, 2 Mich., 401. 
 
 Bills and Notes, 386 to 388. 
 Carmichael, People v. 
 Carne v. Hall, 7 Mich., 159. 
 
 Practice in Supreme Court, 2766, 2767. 
 Carne v. Litchfield, 2 Mich., 340. 
 
 Error, 1553 ; Evidence, 1645. 
 Carpenter, Higgins v. 
 Carpenter, People v. 
 Carr, Myers v. 
 Carr, Wyckoff v. 
 
13 TABLE OF CASES. 
 
 Carroll v. Fanners and Mechanics' Banli, Har. Ch., 197. 
 
 Comity between States, 550; Equity, 1384, 1386, 1407, 1409. 
 Carroll v. Potter, Wal. Clx, 355. 
 
 Equity, 1153, 1333, 1339. 
 
 Cited, 5 Mich., 181. 
 Carroll v. Rice, Wal. Ch., 373. 
 
 Equity, 1115, 1119. 
 Carroll v. Van Rensselaer, Har. Ch., 335. 
 
 Vendor and Purchaser, 3318. 
 Carson v. Arctic Mining Co., 5 Mich., 388. 
 
 Action, 66. 
 Carter v. Hohbs, 13 Mich., 53. 
 
 Innkeeper, 3049, 3050. 
 Carter, Spear v. 
 Carter, Whitwell v. 
 Caruthers v. Hall, 10 Mich., 40. 
 
 Equity, 1830 ; Mortgage of Lands, 3380. 
 
 Cited, 13 Mich., 474. 
 Caruthers v. Humphrey, 13 Mich., 270. 
 
 Mortgage of Lands, 3319, 3341, 3383. 
 
 Cited., 13 Mich., 307, 313, 394. 
 Cash, Appellant, 6 Mich., 193. 
 
 See Selby, Matter of. 
 Caswell V. Comstock, 6 Mich., 391. 
 
 Appeal from Chancery, 116. 
 
 Cited, 9 Mich., 149. 
 Caswell v. Ward, 3 Doug., 374. 
 
 Possession of Lands, 3601, 3606, 3608, 3613, 3613. 
 
 Cited, 4 Mich., 344 ; 10 Mich., 384, 387. 
 Catlin V. Birchard, 13 Mich., 110. 
 
 Action, 63. 
 Cavenaugh v. Jakeway, Wal. Ch., 344. 
 
 Equity, 1139. 
 Chaffee v. Granger, 6 Mich., 51. 
 
 Detroit City, 1036 to 1038 ; Municipal Corporations, 3396. 
 
 Cited, 9 Mich., 143. 
 Chaffee, Miller v. 
 Chaffee v. Soldan, 5 Mich., 343. 
 
 Appeal from Justices' Court, 175 ; Error, 1541. 
 Chamberlin v. Brown, 3 Doug., 130. 
 
 Jury, 3143 ; Possession of Lands, 3598, 3600, 3610. 
 
 Cited, 3 Doug., 371. 
 Chamberlin v. Darragh, Wal. Ch., 149. 
 
 Specific Performance, 3008, 3009. 
 Chamberlain v. Dow, 10 Mich., 319. 
 
 Frauds, Statute of, 1913 ; Partnership, 2466. 
 Chamberlain v. Lyell, 8 Mich., 448. 
 
 Courts of the United States, 768 ; Equity, 1379 ; Homestead, 1998. 
 Chamberlain v. O'Keefe, 3 Mich., 357. 
 
 Appeal from Justices' Court, 173. 
 Chandler v. Allison, 10 Mich., 460. 
 
 Compromise of Claims, 559 ; Damages, 970 to 973 ; Evidence, 1678 
 
 to 1680. 
 
 Cited, 11 Mich., 548. 
 Chandler, Allison v. 
 Chandler, Hale v. 
 Chandler v. Lawrence, 3 Mich., 361. 
 
 Joint Debtors, 3078 ; Limitation of Actions, 3339, 3330 ; Practice in 
 
 Circuit Courts, 3641. 
 
TABLE OF CASES. 13 
 
 Chandler v. McKinney, 6 Mich., 317. 
 
 Equity, 1473 ; Infant, 2043.. 
 Chandler v. Nash, 5 Mich., 409. 
 
 Attachment, 298 ; Constitutional Law, 663 ; Jurisdiction, 3125, 2136, 
 
 3130. 
 
 Gited, 8 Mich., 64. 
 Chapin v. Jacobs, 10 Mich., 405. 
 
 Mortgage of Lands, 2334. 
 Chapin, Rood v. 
 
 Chapman, Township of LaGrange v. 
 Chapman, Turner v. 
 Chapman, Village of Romeo v. 
 Chappee v. Thomas, 5 Mich., 53. 
 
 Appeal from Justices' Courts, 165, 177 ; Constitutional Law, 619, 
 
 661. 
 
 Citea, 9 Mich., 156 ; 11 Mich., 133-4. 
 Chase, Brown v. 
 Chase, Huyser v. 
 Chene v. Bank of Michigan, Wal. Ch., 511. 
 
 Trusts, 3174. 
 Chene, Campau v. 
 Chene, Eraser v. 
 Chester, Rossiter v. 
 Child, Storey v. 
 Chilvers v. People, 11 Mich., 43. 
 
 Detroit City, 1031, 1032. 
 Chipman, Sayiers t. 
 Chipman v. Thompson, Wal. Ch., 405. 
 
 Equity, 1184 to 1186, 1357 ; Evidence, 1721. 
 Chubb, People v. 
 Church, Graydon v, 
 Cicotte, Beubien v. 
 Cicotte V. Gagnier, 3 Mich., 381, -' 
 
 Consideration, 587 ; Deed, 1007 ; Equity, 1343 to 1245, 1474 ; Estop- 
 pel, 1636 ; Vendor and Purchaser, 8310. 
 
 Oited, 13 Mich., 373, 373, 377. 
 Cicotte, McBride v. 
 Cicotte V. Morse, 8 Mich,, 434. 
 
 Bills and Notes, 417 ; Certiorari, 536, 537 ; Justices' Courts, 3153. 
 
 Oited, 11 Mich., 357. 
 Cicotte, Smith v, 
 City of Detroit, Bagg v. 
 City of Detroit, Chaffee v. 
 City of Detroit v, Corey, 9 Mich., 165, 
 
 Municipal Corporations, 3399 ; Negligence, 3433 to 2427. 
 City of Detroit, Dermont v. 
 City of Detroit v. Detroit and Erin Plank Road Co., 13 Mich., 333. 
 
 Plank Road Companies, 2512, 3513. 
 City of Detroit, Detroit Young Men's Society v. 
 City of Detroit, Devaux v. 
 
 City of Detroit, Farmers and Mechanics' Bank v. 
 City of Detroit, Goodrich v. 
 City of Detroit, Hinchman v. 
 City of Detroit v, Jackson, 1 Doug., 106. 
 
 Acknowledgment of Deeds, 3 ; Arbitration and Award, 190, 192, 
 193, 194 ; Corporations, 725 ; Error, 1539 ; Principal and Agent, 
 3819, 2820, 
 City of Detroit, Jackson v. 
 City of Detroit, Kelsey v. 
 
14 TABLE OF CASES. 
 
 City of Detroit, LeFevre v. 
 
 City of Detroit, Sisters of Charity v. 
 
 City of Detroit, Stadler v. 
 
 City of Detroit, Welles v, 
 
 City of Detroit, Williams v. 
 
 City of Detroit, Woodbridge v. 
 
 City of Monroe, La Plaisance Bay Harbor Co. v. 
 
 City of Saginaw, Pennoyer v. 
 
 City of St, Clair, Gumey v. 
 
 Clark V, Axford, 5 Mich., 182. 
 
 Taxation, 3135, 3136, 
 Clark, Candee v, 
 Clark. V. Crane, 5 Mich., 151, 
 
 Statutes, 8058 ; Taxation, 3078. 
 Clark V, Davis, Har, Ch., 337, 
 
 Equity, 1198, 1395, 1358, 1362- 
 Clark V. Dorr, 6 Mich., 143. 
 
 Questions Reserved, 2871, 3874, 2875. 
 Clark, Dorr v. 
 Clark, Erwin v. 
 Clark, Fox v. 
 Clark V. Holmes, 1 Doug., 390. 
 
 Evidence, 1778, 1779 ; Jurisdiction, 2125 to 3130, 2136 ; Justices 
 
 Courts, 2145, 2173. 
 
 Cited, 2 Dong., 492, 507 ; 1 Mich., 21, 152, 160. 
 
 3 Mich., 360 ; 5 Mich., 416 ; 8 Mich., 64. 
 Clark, Jacox v. 
 Clark V, Moore, 3 Mich., 55. 
 
 Contracts, 695 ; Damages, 946 to 948 ; Error, 1547. 
 
 CUed, 13 Mich., 370. 
 Clark V. Mowyer, 5 Mich., 462. 
 
 Taxation, 3101, 3103. 
 Clark, People v. 
 Clark, Phenix v. 
 Clark v. Saginaw City Bank, Har. Ch., 340. 
 
 Equity, 1832. 
 Cleland v. Taylor, 3 Mich., 201. 
 
 Trusts, 3178. 
 
 Cited, 9 Mich., 368"! 
 Clement v. Comstock, 2 Mich., 359. 
 
 Arbitration and Award, 191, 195 to 202. 
 Cleveland, Kimball v. 
 Clinton Canal Bank, Wheeler v. 
 Clute V. Barron, 2 Mich., 192. 
 
 County Treasurer, 765. 
 
 Cit^, 2 Mich., 333 ; 11 Mich., 144, 336. 
 Coatsworth v. Barr, 11 Mich., 199. 
 
 Usury, 3193. 
 Coflfenbury, Supervisors of St. Joseph v. 
 Coit, Paton v. 
 Collier, People v. 
 Collins Iron Co. v. Burkham, 10 Mich., 283. 
 
 Conflict of Laws, 571, 573 ; Usury, 3198 to 3200. 
 Collins Iron Co., Farrandv. 
 Collins, People v. 
 Colmanv. Post, 10 Mich., 433. 
 
 Mortgage of Lands, 2333, 2394a. 
 Columbia Bank v. Jacobs, 10 Mich., 349. 
 
 Attachment, 290 to 292 ; Bona Fide Purchaser, 462. 
 
TABLE OF CASES. 15 
 
 Commissioners of Highwaj^s of Niles v. Martin, 4 Mich., 557. 
 
 See Higliway Commissioners v. Niles. 
 Comstock, Caswell v. 
 Comstock, Clement v. 
 Comstock V. Draper, 1 Mich., 481. 
 
 Contracts, 686. 
 Comstock V. HoUon, 3 Mich., 355. 
 
 Error, 1563 ; Fraud, &c., 1891 ; Pleadings, 2577. 
 Comstock V. Howard, Wal. Ch., 110. 
 
 Mortgage of Lands, 2311, 3336. 
 Comstock, Mandeville v. 
 Comstock, Sinclair v. 
 Comstoclt, Westbrook v. 
 Congdon, Morse v. 
 Connor t. Allen, Har. Ch., 371. 
 
 Equity, 1434 ; Partnership, 2483. 
 Connor, People v. 
 Converse v. Blumrick, 14 Mich. 
 
 Fraud, &c., 1876 ; Specific Performance, 3004, 3018, 3028. 
 Cook V. Biddle, 2 Mich., 269. 
 
 Treaty, 3167. 
 Cook V. Finkler, 9 Mich., 131. 
 
 Estoppel, 1630; Mortgage of Lands, 2390. 
 Cook, Holbrook t. 
 Cook, People v. 
 Cook v. Village of Hillsdale, 7 Mich., 115. 
 
 Ways, 3244, 3253. 
 Cook V. Wheeler, Har. Ch., 443. 
 Equity, 1209, 1210, 1382. 
 CiUd, 6 Mich., 73. 
 Cooley, Gilbert v. 
 Coon V. Fry, 6 Mich., 506. 
 
 Estates of Deceased Persons, 1609, 1610. 
 Cited, 12 Mich., 360. 
 Coon, Jagger v. 
 Cooper V. Alden, Har. Ch., 72. 
 
 Commissioners etf Internal Improvement, 551 ; Equity, 1134, 1408; 
 Ways, 3338, 3240, 3341. 
 Cooper V. Bigley, 13 Mich., 463. 
 
 Deed, 1001, 1005 ; Equity, 1383 ; Mortgage of Lands, 3346, 3851, 
 2370 to 2374; Recording Laws, 2923, 2924, 2938. 
 Cooper V. Bresler, 9 Mich., 534. 
 
 Equity, 1390. 
 Cooper V. Ulmann, Wal. Ch., 351. 
 Mortgage of Lands, 2353, 2353. 
 Cited, 6 Mich., 73. 
 Copland v. Parker, 4 Mich., 660, 
 
 Landlord and Tenant, 2212, 2213. 
 Copland, Parker v. 
 Copland, Parsons v. 
 Corey, Detroit City v. 
 Cornwell, Maynards v. 
 Comwell, People V. 
 Cote V. Dequindre, Wal. Ch., 64. 
 Action, 43. 
 Cited, 6 Mich., 72. 
 Cottrell, Sears v. 
 County of Wayne, Bacon v. 
 
 County Commissioners of Lapeer V. Hart, Har. Ch., 157. 
 See Lapeer County v. Hart. 
 
16 TABLE OP CASES. 
 
 Couse V. Tregent, 11 Mich., 65. 
 
 Bona Fide Purchaser, 466. 
 Cowee, Brown v. 
 Cox V. Crippen, 13 Mich., 502. 
 
 Justices Courts, 2181, 2182. 
 Cozzens, Ward t. 
 Craig V. Butler, 9 Mich., 21. 
 
 Statutes, 3061 ; Usury, 3192, 3197. 
 
 Cited, 10 Mich., 289. 
 Craig V. Grant, 6 Mich., 447. 
 
 Counties, 758 ; Evidence, 1698 ; Pleadings, 2591 ; Replevin, 2950. 
 Cramer, Lastly v. 
 Crane, Clark v. 
 Crane v. Dwyer, 9 Mich., 350. 
 
 Equity, 1187, 1188. 
 
 Cited, 13 Mich., 361. 
 Crane v. Hardy, 1 Mich., 56. 
 
 Attachment, 275, 287 ; Conflict of Laws, 569 ; Constitutional Law, 
 
 599 ; Evidence, 1791, 1793^1801 ; Judgments, 2106, 2107 ; Waiver, 
 
 3229 
 
 Cited, 5 Mich., 363. 
 Crane v. O'Reiley, 8 Mich., 312. 
 
 Land Contract, 2199 to 2201. 
 Crane v. Partland, 9 Mich., 493. 
 
 Contracts, 706 to 709. 
 Crane, Sutherland v. 
 Cranson v. Cranson, 4 Mich., 230. 
 
 Husband and Wife, 2014, 2029, 2030. 
 Crippen, Cox v. 
 Crippen v. Morrison, 13 Mich., 23. 
 
 Fixtures, 1850 to 1852; Mortgage of Lands, 2341, 2343, 2875. 
 
 Cited, 13 Mich., 394. 
 Crippen, Cox v. 
 Crippen v. People, 8 Mich., 117. 
 
 Criminal Law, 883, 886 ; Error, 1540, 1588 ; Practice in Circuit 
 
 Courts, 2649, 2653; Witness, 3304. 
 Crittenden v. Robertson, 13 Mich., 58. • 
 
 Bounty, 479. 
 Cross V. People, 8 Mich., 113. 
 
 Bastardy, 372. 
 Cross V. People, 10 Mich., 24. 
 
 Affidavit, 95 ; Bastardy, 368 to 370, 372. 
 Croswell v. People, 13 Mich., 427. 
 
 Criminal Law, 796 to 798. 
 Crouse v. Derbyshire, 10 Mich., 479. 
 
 Justices Courts, 2180 ; Replevin, 2939. 
 Cuddy V. Major, 13 Mich., 368. 
 
 Damages, 949, 950; Error, 1540. 
 Cudney, Dann v. 
 Cullen V. O'Hara, 4 Mich., 133. 
 
 Action, 38 ; Estates of Deceased Persons, 1590 ; Waiver, 3331. 
 Cummings v. Stone, 13 Mich., 70. 
 
 Consideration, 584; Error, 1547; Evidence, 1815 ; Frauds, Statutes, 
 
 &c., 1914. 
 Curry, Lull v. 
 Curtis V. Phillips, 5 Mich., 113. 
 
 Mortgage of Chattels, 3393. 
 Cutler, Dwight v. 
 Cutler V. Gi iswold, Wal. Ch., 437. 
 
 Fraud, &c., 1870. 
 
TABLE OP CASES. 17 
 
 Cited, 6 Mich., 466 ; Explained, 9 Mich., 489. 
 Bacon, Perltins v. 
 Daily V. Litchfield, 10 Mich., 29. 
 
 Damages, 960 ; Deed, 999 ; Specific Performance, 3011, 3017, 3020 
 to 3038, 3030. 
 Daily v. Litchfield, 11 Mich,, 497. 
 Appeal from Chancery, 136. 
 Daniels v. Eisenlord, 10 Mich., 454. 
 
 Equity, 1510 ; Mortgage of Lands, 2835. 
 Daniels v. Mosher, 2 Mich., 183. 
 Contracts, 697 ; Evidence, 1736. 
 Cited, 4 Mich,, 312. 
 Daniels t. People, 6 Mich., 381. 
 
 Circuit Court Commissioners, 540 ; Recognizance, 2906, 3907, 2910. 
 Daniels v. Ripley, 10 Mich., 237. 
 
 Arbitration and Award, 203, 204.' 
 Daniels, Strong v. 
 Dann v. Cudney, 13 Mich., 239. 
 
 Error, 1562 ; Estoppel, 1631 ; Evidence, 1681. 
 Darragh, Chamberlin v. 
 Darrow, Benhard v. 
 Davenport v. Parsons, 10 Mich., 43. 
 
 Deed, 994, 995. 
 Davenport, Wisner v. 
 David, Pennoyer v. 
 Davidson v. Elliott, 9 Mich., 353. 
 
 Appeal from Justices Courts, 161. 
 Davidson v. GunsoUy, 1 Mich., 388. 
 
 Replevin, 3953. 
 Davidson, People v. 
 Davis, Clark v. 
 Davis V. Downs, 4 Mich,, 530. 
 
 Contracts, 693. 
 Davis V. Freeman, 10 Mich., 188. 
 
 Damages, 959 ; Practice in Circuit Courts, 3634, 2730. 
 Davis V. Ingersoll, 2 Doug., 372. 
 
 Possession of Lands, 2601, 2602, 2614. 
 Davis, Lacey v. 
 Davis, Lull v. 
 
 Davis, Michigan Southern and Northern Indiana R. R. Co. v. 
 Davis V. Ransom, 4 Mich., 238. 
 
 Vendor and Purchaser, 3304, 3305. 
 Davis V. Rider, 5 Mich., 423. 
 
 Mortgage of Chattels, 2290 ; Mortgage of Lands, 3391, 3393 ; Re- 
 medy, 2933. 
 Cited, 9 Mich., 526. 
 Davis, Shaw v. 
 Davis, Snook v. 
 Davis, Van Dyke v. 
 Davis, Wilson v. 
 Davis, Wixom v. 
 Dawson v. Hall, 2 Mich., 390. 
 
 Deed, 996, 998 ; Equity, 1244 ; Evidence, 1714 to 1716, 1746, 1747. 
 Day V. Owen, 5 Mich., 520. 
 
 Carriers of Persons, 502 to 506. 
 Day V. W£.tson, 8 Mich,, 535. 
 
 Landlord and Tenant, 3310, 2211. 
 Dayton v. Williams, 2 Doug., 31' 
 Pleadings, 3533, 2534, 2590, 
 Dean, Goods r.eed v. 
 
18 TABLE OF CASES. 
 
 Dean, Jackson v. 
 
 Dean, Vanderhoof v. 
 
 De Armand v. Phillips, "Wal. Ch., 186. 
 
 Equity, 1151. 
 De Forest v. Wright. 2 Mich., 368. 
 
 Negligence, 2417, 3418. 
 
 Cited, 9 Mich,, 191. 
 De Graflf, Bailey v. 
 
 De Graflf, Niagara Fire Insurance Co. v. 
 De Graflf, "Wright v. 
 Delaney v. People 10 Mich., 241. 
 
 Criminal Law, 865 to 867. 
 Delevan v. Bates, 1 Mich., 97. 
 
 Action, 34 ; Damages, 985 ; Former Suit, 1857 ; Pleadings, 2575. 
 Dclrymple, Brooks v. 
 Dennis v. Hemingway, Wal. Ch., 387. 
 
 Equity, 1290, 1291. 
 
 Cited, 9 Mich., 536. 
 Dennis, PeopJe v. 
 Denton, Benedict v. 
 Denton, Thayer v. 
 Dequindre, Cote v. 
 Dequindre, Drew v. 
 Dequindre, Suydam v. 
 Derby, Little v. 
 Derbyshire, Crouse v. 
 Dermont v. City of Detroit, 4 Mich., 435. 
 
 Municipal Corporations, 2397,2398. 
 Detroit City Bank, Mason v. 
 
 Detroit and Erin Plank Road Co., Attorney-General v. 
 Detroit and Erin Plank Road Co., City of Detroit. 
 Detroit andHowell Plank Road Co. v. Fisher, 4 Mich., 37. 
 
 Plank Road Companies, 2507, 3509 to 3511 ;Wa^s, 3274. 
 Detroit and Milwaukee Railroad Co. v. Griggs, 12 Mich., 45. 
 
 Equity, 1226 ; Set Oflf, 2972. 
 Detroit and Milwaukee Railroad Co., La Due y. 
 Detroit and Milwaukee Railway Co., Fowler v. 
 Detroit and Milwaukee Railway Co., Griggs v. 
 Detroit and Milwaukee Railway Co., McLaughlin v. 
 Detroit and Milwaukee Railway Co., Tower v. 
 Detroit andPontiac Railroad Co., Matter of, 2 Doug., 867. 
 
 Jury, 2144. 
 Detroit and Pontiac Railroad Co., People v. 
 Detroit Young Men's Society v. City of Detroit, 3 Mich., 173. 
 
 Taxation, 3083 to 3085. 
 
 Cited, 9 Mich., 98, 101. 
 Detroit Young Men's Society, Regents of the University v. 
 Detroit Young Men's Society's Lessee, Scott v. 
 Deuel V. Higgms, 9 Mich., 223. 
 
 Evidence, 1718. 
 Devaux v. City of Detroit, Har. Ch., 98. 
 
 Equity, 1165. 
 
 Cited, 13 Mich.,, 370. 
 Dewey v. Campau, 4 Mich., 565. 
 
 Acknowledgment of Deeds, 4, 7, 8, 11 ; Grants, 1940, 1943. 
 Dewey, Campau v. 
 Dewey, Farwell v. 
 Dewey, Piatt v. 
 Dexter, House v. 
 
TABLE OP CASES. 19 
 
 Dexter and Mason Plank Road Co. v. Millerd, 3 Mich,, 91. 
 
 Action 64, 65. 
 
 Cited, 5 Micli., 293 to 303. 
 Dibble v. Rogers, 3 Mich., 404. 
 
 Error, 1540. 
 
 Cited, 5 Mich., 538. 
 Dickinson, Appeal of, 2 Mich., 83T. . 
 
 Appeal in Probate Cases, 178, 179, 180 ; Probate Courts, 2847, 2848. 
 
 Cited, 5 Mich., 23a 
 Dillin V, People, 8 Mich., 357. 
 
 Criminal Law, 785 ; Evidence, 1683, 1748, 1757, 1758. 
 Disbrow, Godfrey v. 
 Disbrow v. Jones, Har, Ch., 48. 
 
 Insurance, 2051 ; Notice, 2438 ; Possession of Lands, 2594 ; Vendor 
 
 and Purchaser, 3212. 
 Disbrow v. Jones, Har. Ch., 102. 
 
 Equity, 1211, 1313 ? Set Off, 2972. 
 Disbrow, Jones v, 
 Dixon, (jarlinghouse v, 
 Dixon V. HiU, 5 Mich,, 404. 
 
 Bona Fide Purchaser, 458, 459. 
 Dixon, Steward v. 
 Dodge, Bostwick v. 
 Dodge V, Stanton, 12 Mich., 408. 
 
 Bills and Notes, 394, 395 ; Estates of Deceased Persons, 1613. 
 Dodge, Thomas v. 
 Doe, People v. 
 Dorr, Petitioner, "Wal. Ch., 145. 
 
 Guardian and "Ward, 1976, 1977. 
 Dorr, Albany City Bank t. 
 Dorr, Clark t. 
 Dorr V. Clark, 7 Mich., 310. 
 
 Affidavit, 92; Attachment, 361, 306, 307. 
 
 Cited, 9 Mich., 163. 
 Doseman, Scribner v, 
 Doty, Barrows v. 
 Doty, Mack v. 
 Doty, Rowland v, 
 Dougherty v, Randall, 3 Mich., 581, __ , ^ ^ 
 
 Acknowledgment of Deeds, 1 ; Deed, 992 ; Evidence, 1636 ; Mott- 
 
 gage of Lands, 3352. 
 
 Cited, 13 Mich., 394. 
 Douaman v, O'Malley, 1 Doug,, 450, 
 
 Time, 3151, 
 Dow, Chamberlain v, 
 Dow, Street v. 
 Downs, Davis v, 
 Doyle V, Stevens, 4 Mich., 87, 
 
 Fraud, &o„ 1890 ; Mortgage of Chattels, 3395 to 2297 ; Practice ifi 
 
 Circuit Courts, 2666, 2722, 
 Drake v. Andrews, 3 Mich., 203. 
 
 Appeal from Chancery, 130 ; Time, 3152, 
 Drake, Lockwood v, 
 Drake, Manning v, 
 Drake, Piatt v, 
 Draper, Comstock v. 
 Draper v, Williams, 2 Mich., 536, 
 
 Railroad Corporations, 3901, 
 Cited, 7 Mich., 430, 
 
 29 
 
so TABLE OF CASES. 
 
 Drennan v. People, 10 Mich., 169, 
 
 Arrest, 309 ; Criminal Law, 782, 814, 898, 
 Drew T, Dequindre, 3 Doug,, 93. 
 
 Attachment, 356, 359, 366, 367, 371, 288, 
 
 Cited, 2 Mich., 423 ; 3 Mich., 535 ; 5 Mich,, 103, 
 Drew V. Steamboat Chesapeake, 3 Doug., 33. 
 
 Collision of Vessels, 545 to 547. 
 Dudley, Elliott v. 
 Dudley, Wright v, 
 Dunham, Bush v. 
 Dunham, Wright y. 
 Dunn T. Dunn, 11 Mich., 384 
 
 Equity, 1343, 1474, 1476 to 1482 ; Eyidence, 1683, 1696. 
 
 Gited, 13 Mich., 873. 
 Dunn V. Sutliflf, 1 Mich., 34. 
 
 Appeal from Justices' Courts, 176 ; Arbitration and Award, 189 ; 
 
 Justices' Courts, 3167. 
 Dunning, Wallace v, 
 Durant v. People, 13 Mich., 351- 
 
 Criminal Law, 817, 818, 933. 
 
 Cited, 13 Mich., 519. 
 Durfee v. McClurg, 5 Mich., 583. 
 
 Practice in Supreme Court, 3763. 
 Durfee v. McCIurg, 6 Mich., 323. 
 
 Equity, 1354; Husband and Wife, 2016 to 3019. 
 
 Cited, 9 Mich,, 76. 
 Dutton V. Ives, 5 Mich,, 515. 
 
 Bills and Notes, 389; Mortgage of Lands, 3850,3357, 3858 ; Record- 
 ing Laws, 3907, 3912. 
 Dwight V. Blackman, 3 Mich., 330. 
 
 Estates of Deceased Persons; 1600. 
 
 Cited, 11 Mich., 144, 336. 
 Dwight V. Cutler, 3 Mich., 566. 
 
 Action, 69 to 72 ; Land Contract, 3194 to 2199. 
 
 Cited, 8 Mich., 315 ; 10 Mich., 38. 
 Dwyer, Crane v. 
 Dye V, Mann, 10 Mich., 291. 
 
 Appeal from Chancery, 149 ; Consideration, 578 ; Contracts, 710 ; 
 
 Equity, 1398, 1394, 1318 ; Homestead, 2000, 3004. 
 
 Cited, 10 Mich., 540 ; 11 Mich., 360. 
 Dyson v. Sheley, 11 Mich., 527. 
 
 Homestead, 1994, 1996, 1997, 
 Eagle, O'Plynn v, 
 Eastman, Wall v. 
 Eaton, Oliver v. 
 Eaton, Ramsdell v. 
 Eberhardt, Buys v, 
 Edgarton v. Hmchman, 7 Mich., 352, 
 
 Attachment, 394 ; Circuit Court Commissioners, 543. 
 Edwards v. Hulbert, Wal, Ch., 54, 
 
 Equity, 1160, 1360, 
 
 Cited, Wal, Ch., 329. 
 Edwards v. Sanborn, 6 Mich., 348. 
 
 Damages, 951. 
 Eggleston v. Mundy, 4 Mich., 295. 
 
 Action, 29 ; Mortgage of Chattels, 3284 to 2387. 
 
 Cited, 7 Mich., 531, 
 Eggleston, Van Kleek v, 
 Eglington, Brigham v, 
 Eisenlord, Daniels v. 
 
TABLE OF CASES. 31 
 
 Eldred v. Camp, Har, Ch., 162, 
 
 Equity, 1408. 
 
 Cited, Wal. Ch., 487. 
 Eldred v. Camp, Wal. Ch., 427; 
 
 See How v. Camp. 
 Elliott, Davidson v. 
 Elliott V. Dudley, 8 Mich., 63. 
 
 Bail in Civil Cases, 323. 
 Elliott V. Green, 10 Mich., 113. 
 
 Practice in Circuit Courts, 2695, 2696, 
 Elliott V. Miller, 8 Mich., 133. 
 
 Bills and Notes, 382, 390 ; Taxation, 3100. 
 Elliott V. People, la Mich., 365. 
 
 Criminal Law, 942, 943. 
 Elliott V. Whitmore, 5 Mich., 532. 
 
 Certiorari, 537 ; Judgments, 2115 ; Justices' Courts, 2170 ; Replev- 
 in, 3941. 
 
 Cited, 8 Mich., 49, 429 ; Dictum corrected, 10 Mich., 13. 
 Elmore, Graham v. 
 Emerson v. Atwater, 5 Mich., 34. 
 
 Appeal from Chancery, 122, 133. 
 Emerson v- Atwater, 7 Mich., 12. 
 
 Bona Fide Purchaser, 461, 482 ; Equity, 1328 ; Evidence, 1648, 
 
 1649, 1766 ; Mortgage of Lands, 2308, 3309 ; Stare Decisis, 3035 . 
 Emerson v. Atwater, 12 Mich., 314. 
 
 Equity, 1351 to 1353, 1394, 1398, 1453, 1458, 1457, 1496, 1497 ; Mort- 
 gage of Lands, 361. 
 
 Cited, 13 Mich., 478. 
 Emery v. Whitwell, 6 Mich., 474. 
 
 Amendments, 98, 99. 
 
 Cited, 8 Mich,, 137. 
 Emery, Whitwell v. 
 Emmons v. Emmons, Wal. Ch., 533. ^ 
 
 Divorce, 1049. 
 Emmons, Gray v, 
 Emmons, Knight v. 
 Engle V. Shurts, 1 Mich., 150. 
 
 Statutes, 3068. 
 
 Cited, 10 Mich., 389. 
 English V. Fairchild, 5 Mich., 141. 
 
 Questions Reserved, 3871, 3874, 3875. 
 Enos V. Sutherland, 9 Mich., 148. 
 
 Appeal from Chancery, 117 ; Equity, 1490. 
 
 Cited, 10 Mich., 436. 
 Enos V. Sutherland, 11 Mich., 538. 
 
 Mortgage of Lands, 3313 to 2315, 2389. 
 Ergensinger, Langley v. 
 Erie and Kalamazoo Railroad Bank, Fay, v. 
 Erwin v. Clark, 13 Mich., 10. 
 
 Bailment, 333 to 336 ; Evidence, 1776 ; Practice in Circuit Courts, 
 
 2669. 
 
 Cited, 13 Mich., 97. 
 Evans, Jackson v. 
 Evans v. Norris, 6 Mich., 69. 
 
 Practice in Supreme Court, 2758, 2776, 2777. 
 Evans v. Norris, 6 Mich., 369. 
 
 Contracts, 698, 699. 
 Evans V. People, 12 Mich., 37. 
 
 Criminal Law, 917, 918 ; Evidence, 1728, 1729. 
 
22 TABLE OF CASES. 
 
 Everts v. Everts, 3 Mich., 580. 
 Husband and Wife, 2032. 
 Facey v. Fuller, 13 Mich., 527. 
 
 Evidence, 1782; Jurisdiction, 2128; Justices' Courts, 2159; Officer, 
 2443. 
 Facey v. Otis, 11 Mich., 213. 
 
 Contracts, 672, 676 ; Evidence, 1740 ; Practice in Circuit Courts, 
 2690. 
 Facey, Sutton v. 
 Fairbanks, Campau v. 
 Fairchild, English v. 
 Falkner v. Beers, 2 Doug., 117. 
 
 Estoppel, 1617 ; Evidence, 1837 ; Landlord and Tenant, 2307 ; Pos- 
 session of Lands, 2611. 
 Farmers and Mechanics' Bank, Carroll v. 
 Farmers and Mechanics' Bank v. City of Detroit, 12 Mich., 445. 
 
 Equity, 1154 to 1156, 1281 ; Governor and Judges, 1938. 
 Farmers and Mechanics' Bank, Greenvault v. 
 Farmers and Mechanics' Bank, Kephart v. 
 Farmers and Mechanics' Bank v. Kercheval, 2 Mich., 504. 
 
 Guaranty, 1945, 1948 to 1952 ; Principal and Surety, 2835, 2836. 
 Farmers and Mechanics' Bank v. Kimmel, 1 Mich., 84. 
 Usury, 3194. 
 
 Cited, 9 Mich., 25 ; 11 Mich., 60. 
 Farmers and Mechanics' Bank v. Kingsley, 2 Doug., 379. 
 
 Judgments, 2093. 
 Farmers and Mechanics' Bank, Kinzie v. 
 Farmers and Mechanics' Bank, Strong v. 
 
 Farmers and Mechanics' Bank v. Troy City Bank, 1 Doug., 457. 
 • Banks and Banking, 333 to 336 ; Corporations, 729 ; Error, 1564 ; 
 Warrant of Attorney, 3232, 
 Farnham, Matter of, 8 Mich., 89. 
 
 Evidence, 1842. 
 Farnham, Wisner v. 
 Farr v. Rasco, 9 Mich,, 353. 
 
 Slander, 2989. 
 Farr v. Sherman, 11 Mich., 33. 
 
 Husband and Wife, 2011. 
 Farrand v. Bentley, 6 Mich., 281. 
 
 Jurisdiction, 2131, 2133 ; Practice in Circuit Courts, 2735, 2750 ; 
 Practice in Supreme Court, 2787. 
 Cited, 8 Mich., 138. 
 Farrand v. Collins Iron Co., 8 Mich., 136. 
 Practice in Supreme Court, 2786, 2808, 
 Farrand, Jackson Co. v. 
 Farrar, Gordon v. 
 Farrar, Whipple v. 
 Farrell v. Taylor, 12 Mich., 113. 
 
 Certiorari, 513, 514. 
 Farwell v. Dewey, 12 Mich., 436. 
 
 Action, 40 ; Frauds, Statute of, 1903. 
 Farwell, People v. 
 Fay V. Erie and Kalamazoo Railroad Bank, Har. Ch., 194. 
 
 Banks and Banking, 355 to 357 ; Corporations, 748 ; Equity, 1423, 
 1424. 
 Felch, Bishop v. 
 Fellers, Ward v. 
 Fellows, Horner v. 
 Fellows, Lawrence v. 
 
TABLE OF CASES. 23 
 
 Fessenden v. Hill, 6 Mich., 343. 
 
 Attachment, 256. 
 Fifield, Brown v. 
 Fillmore Townsliip, People v. 
 Findley v. People, 1 Mich., 234. 
 
 Criminal Law, 910, 911, 933. 
 
 Oited, 8 Mich., 503, 
 Finliler, Cook v. 
 Fiquet v. Allison, 13 Mich., 338. 
 
 Action 48 ; Tenant in Common, 3142, 3143. 
 
 Gited, 13 Mich., 19. 
 Fish V, Hale, 4 Mich., 506. 
 
 Bills and Notes, 435. 
 Fish, Harrington v. 
 Fish V. Morse, 8 Mich., 34, 
 
 Appeal in Probate Cases, 181, 183 ; Estates of Deceased Persons, 
 
 1611. 
 Fisher, Detroit and Howell Plank Road Co. v, 
 Fisher v. Hood, 14 Mich. 
 
 Evidence, 1682, 1696. 
 Fisher, Wesleyan Seminary v. 
 Fisk, Webster t. 
 Fitch, Littell v. 
 Fitch V. Newherry, 1 Doug., 1. 
 
 Carriers of Goods, 495 to 497 ; Warehousemen, 3330. 
 Fitch, Wharton v. 
 Fitzhugh V. Barnard, 13 Mich., 104. 
 
 Bona Fide Purchaser, 455, 456 ; Notice, 2429 ; Vendor and Pur- 
 chaser, 3211. 
 Planigan v. Lampman, 13 Mich., 58. 
 
 Assignment, 319, 226, 235 : Error, 1557. 
 Fleming v. Mills, 5 Mich., 430. 
 
 Carriers of Goods, 498; Vendor and Purchaser, 3303. 
 Foote, Lamberton v. 
 Forbes, White v. 
 Forsyth, Morey v. 
 Poster, Iioomis v. 
 Fowler v. Detroit and Milwaukee Railway Co., 7 Mich., 79. 
 
 Certiorari, 533 ; Justices' Courts, 2171. 
 Fowler, Kinyon v. 
 Fox v. Clark, Wal. Ch , 535. 
 
 Beoersed, Fox v. Willis. 
 Fox T. Norton, 9 Mich., 307. 
 
 Partnership, 3463, 3463. 
 Fox V. WiUis, 1 Mich., 321. 
 
 Fraud, &c., 1873, 1874. 
 
 CUed, 3 Mich., 206 ; 4 Mich., 637. 
 Fralick v. Norton, 2 Mich., 130. 
 
 Bills and Notes, 378. 
 Fralick, People v. 
 Franklin v. Mansfield, 8 Mich., 99. 
 
 Practice in Supreme Court, 3798. 
 Fraser v. Chene, 3 Mich., 81. 
 
 Wills, 3284. 
 Frazer v. Little, 13 Mich., 195. 
 
 Replevin, 3960. 
 Freeland, La Roe v. 
 Freeman, Davis v. 
 Freeman v. Freeman, 1 Mich., 480. 
 
 Divorce, 1048. 
 
24 TABLE OF CASES. 
 
 Freeman v. Michigan State Bank, Har. Ch., 311. 
 
 Equity, 1401, 1402. 
 Freeman v. Michigan State Bank, Wal. Ch., 63 . 
 
 Sheriff, 2978. 
 
 Cited, Wal. Ch., 325. 
 French v. Highway Commissioners of SpringweUs, 12 Mich., 267. 
 
 Certiorari, 522. 
 Frost, Welch v. 
 Fry, Coon v. 
 Fuller V. Bowker, 11 Mich., 204. 
 
 Action, 36 ; Constitutional Law, 662 ; Damages, 988, 989 ; Replevin , 
 
 2956. 
 Fuller V. Parish, 3 Mich., 211. 
 
 Evidence, 1766 ; Mortgage of Chattels, 2301 ; Tender, 3148. 
 
 Cited, 3 Mich., 205 ; 7 Mich., 23, 25 ; 9 Mich., 44 ; 10 Mich., 268. 
 Fuller, Tillman v. 
 Gagnier, Cicotte v. 
 Gaines v. Betts, 2 Doug., 98. 
 
 Certiorari, 535, 537 ; Justices' Courts, 21^0. 
 
 Cited, 2 Mich., 241 ; 7 Mich., 317 ; 10 Mich., 12, 15. 
 Gale, Caldwell V. 
 Gallagher, People v. 
 Galloway v. Holmes, 1 Doug., 330. 
 
 Action, 37, 38 ; Conflict of Laws, 573 ; Contracts, 688, 690 ; Fraud, 
 
 &c., 1862 ; Payment, 2494. 
 
 Cited, 2 Mich., 420 ; 3 Mich., 535; 4 Mich., 512. 
 Galpin v. Abbott, 6 Mich., 17. 
 
 Deed, 1018, 1019 ; Recording Laws,' 2912. 
 
 Cited, 10 Mich., 23. 
 Gamber v. Holben, 5 Mich., 331. 
 
 Equity, 1253. 
 Gardv. Stevens, 12 Mich., 9. 
 
 Practice in Circuit Courts, 2736. 
 Gard v. Stevens, 12 Mich., 292. 
 
 Guaranty, 1946, 1947 ; Payment, 2504 ; Practice in Circuit Courts, 
 
 2741. 
 Gardner, Brown v. 
 Gte,rdner v. Gorham, 1 Doug., 507. 
 
 Payment, 2489, 2490 ; Pleadings, 2536. 
 
 Cited, 7 Mich., 365. 
 Gardner v. Smith, 7 Mich., 410. 
 
 Railroad Corporations, 2896 to 2898. 
 
 Cited, 9 Mich., 192. 
 Garlinghouse v. Dixon, Wal. Ch., 440. 
 
 Equity, 1158. 
 Garlock, People v. 
 Garratt v. Litchfield, 10 Mich., 451. 
 
 Appeal from Chancery, 135, 137. 
 
 Cited, 13 Mich., 221. 
 Garratt, Litchfield v. 
 Garrison, Bates v. 
 Gates V. Shutts, 7 Mich., 127. 
 
 Compromise of Claims, 554, 555. 
 Gay V. Bidwell, 7 Mich., 519. 
 
 Fraud, &c., 1882. 1884, 1886, 1887 ; Mortgage of Chattels, 2306. 
 Gay, People v. 
 Gay, Scribnerv. 
 Geddes, People v. 
 George, Herschfeldt y. 
 Getchell, People v. 
 
TABLE OP CASES. 25 
 
 Gibb v. Austin, 9 Mich., 509 
 
 See Penniman v. Perce. 
 Cribson, Gray v. 
 Gibson v- Hibbard, 13 Mich., 214 
 
 Constitutional Lav, 593, 594 ; Donatio Cauaa Mortis, 1063 ; Stamps, 
 
 3033, 3084. 
 Gilbert v. Cooley, Wal. Ch., 494. 
 
 Mortgage of Lands, 2362, 2363, 
 Gilbert v. Hanford, 13 Mich.,40. 
 
 Action, 39 ; Justices' Courts, 2164 ; Pleadings, 2561. 
 Gilkey v. Paige, "Wal. Ch., 520. 
 
 Equity, 1388, 1339, 
 Oillett, Atwood v. 
 Gillett, Campau v. 
 Girardin, People v. 
 Glover V. Alcott, 11 Mieh., 470* 
 
 Evidence,, 1716^ 1811, Husband and Wife, 2023 to 2025. 
 Goddard, McRejnaolds v. 
 Godfrey Estate, Matter of, 4 Mich., 30a 
 
 Estates of Deceased Persons, 1606, 1607. 
 Godfrey, Bobinson v. 
 Godfrey v. Disbrow, Wal. Ch,, 260. 
 
 Adverse Possession, 87 ; Bona Fide Purchaser, 450 to 454 ; Deed, 
 
 991 ; Evidence, 1805 ; Natiee, 2438 ; Possession of Lands, 2594 ; 
 
 Recording Laws, 2914 to 2917. 
 Godfrey's Heirs, Abbott v. 
 Goflf V. Thompson, Har. Ch-, 60. 
 
 Husband and Wife, 2010 ; Vendor and Purchaser, 3210. 
 Goldsmith v. Goldsmith, 6 Mich., 285. 
 
 Divorce, 1054 to 1056. 
 Goodrich v. City of Detroit, 12 Mich., 279. 
 
 Detroit City, 1039 ; Practice in Circuit Courts, 2751, 2752. 
 Goodrich v. Highway Commissioners of Lima, 1 Mich., 885. 
 
 Certiorari, 522. 
 Goodspeed v. Dean, 12 Mich, 352. 
 
 Land Contract, 220a 
 Goodwin, Parks v. 
 Gordon, Byram v. 
 Gordon v. Farrar, 2 Doug., 411. 
 
 Action, 17. 
 Gorham, Gardner v. 
 Gorhamv. Wing, 10 Mieh., 48a 
 
 Attachment, 289 ; Courts of U, S, 769; Equity, 1375 ; Judgments, 
 
 2096, 2097, 2108 to 2110. 
 Gould V.Bailey, Wal. Ch., 478. 
 
 See Bailey v. Gould. 
 Gould, Belden v. 
 Gould V. Tyron, Wal. Ch., 339, 
 
 EquiU, 1391. 
 Gould V. Tryon, WaL Ch., 353. 
 
 Equity, 1197. 
 Graham v. Elmore, Har. Ch., 265. 
 
 Equity, 1403, 1487, 1488, 1501. 
 Grand Blank and Holly Plank Road Co., People v. 
 Grandjean, Buchoz v. 
 Grandy, Miller v. 
 Granger, Chaffee v. 
 Granger, Nail v. 
 Granger, Reed v. 
 Gran^ Austin v. 
 
TABLE OF CASES. 
 
 Grant, Craig v. 
 
 Grant, Place v. 
 
 Graves, Green v. 
 
 Graves v. NUes, Har. Ch., 332. 
 
 Equity, 1381, 1383, 1394 to 1396. 
 Gray v. Emmons, 7 Mich., 533. 
 
 Attorneys, 315 to 320. 
 Gray v. Gibson, 6 Mich., 300. 
 
 Partnership, 3475 to 3477. 
 Gray v. Howard, 13 Mich.,171. 
 
 Practice in Circuit Courts, 3741. 
 Gray, Phcenix Insurance Co. v. 
 Graydon v. Church, 4 Mich., 646. 
 
 Overruled in part, see next case. 
 Graydon V. Church, 7 Mich., 36, 
 
 Estoppel, 1637 to 1639 ; Foreign Receivers, 1853, 1854 ; Mortgage of 
 Lands, 2330. 
 Cited, 13 Mich., 478. 
 Green, Bronson v, 
 Green, Bullard v. 
 Green, Elliott v. 
 Green v. Graves, 1 Doug., 351. 
 
 Banks and Banking, 345 ; Constitutional Law, 658^ 
 Cited, 3 Doug., 195 ;3 Mich., 387 ; 5 Mieh., 259 ; 13 Mich., 151. 
 Green, Reynolds v. 
 Green v. Stone, Wal. Ch., 109. 
 
 Equity, 1237. 
 Green, Trask v. 
 Greenman, Ortman v. 
 Green vault v. Farmers and Mechanics' Bank, 2 Doug^ 498. 
 
 Affidavit, 91, 92 ; Attachment, 354,355, 365,368 ; Jurisdiction, 3131. 
 CUed, 3 Mich., 430 ; 3 Mich., 186. 
 Gregory V- Stanton, 13 Mich., 61. 
 
 Equity, 1375, 1507. 
 Grensel v. Thomas, 6 Mich., 76. 
 
 See Quirk v, Thomas. 
 Griffin, Scales v. 
 
 Griggs, Detroit and Milwaukee R. R. Co. v. 
 Griggs V. Detroit and Milwaukee Railway Co„ 10 Mich., llTi. 
 
 Appeal from Chancery, 146 ; Equity, 1384, 1385. 1495, 1530(1531 ; 
 Trusts, 3183. 
 Grinnell, Munger v, 
 Griswold, Cutter v. 
 Groesheck v. Seeley, 13 Mich., 339. 
 
 Acknowledgment of Deeds, 14 ; Constitutional Law, 626, 637, 638 ; 
 Evidence, 1788 ; Stamps, 3034 ; Taxation, 3114. 
 Gugins V. Van Gorder, 10 Mich., 523. 
 
 Estoppel, 1633. 
 GunsoUy, Davidson v. 
 €Jumey, Brigham v. 
 Gumey v, St. Clair City, 11 Mich., 303. 
 
 Justices' Courts, ai47< 
 Hadley, Morris v. 
 Haines v. Oatman, 2 Doug., 430. 
 
 Practice in Circuit Courts, 2630. 
 Halev. Chandler, 3 Mich., 531. 
 
 Action, 37 ; Attachment, 258, 383, 383 ; Equity, 1349. 
 CUed, 10 Mich., 513. 
 Hale, Fish v. 
 Hale V. Holmes, 8 Miek, 37. 
 
TABLE OF CASES. 27 
 
 Compromise of Claims, 557, 558 j Equity, 1331, 
 Hale Y. Houghton, 8 Mich., 468. 
 
 Detroit City, 1044, 1045. 
 Hale, Michigan Central B. R. Co. v. 
 Hale, Owners of Ship Milwaukee v. 
 Hale, Eomeyn v. 
 Hall, Matter of, 10 Mich., 210. 
 
 Evidence, 1841 ; Habeas Corpus, 1984 ; Prohibitory Liquor Law, 
 2856. 
 Hall, Came v. 
 Hall, Caruthers v. 
 Hall, Dawson v. 
 Hall, Holmes v. 
 HaU V. Kash, 10 Mich., 303. 
 
 Contracts, 711 to 713 ; Mortgage of Lands, 2891. 
 Otted, 12 Mich., 179. 
 Hall, Peoria Marine and Fire Insurance Co. v. 
 Hall V. Redson, 10 Mich., 21. 
 
 Recording Laws, 2927. 
 Hall V. Soule, 11 Mich., 494. 
 
 Frauds, Statute of, 1911, 1913. 
 CUed, 12 Mich., 15. 
 Hamell, Adams v. 
 Hamilton, Bird v. 
 Hammond v. Michigan State Bank, Wal. Ch., 214, 
 
 Conditions, 561 ; Equity, 1312 ; Principal and Agent, 2834. 
 Harmnond, Michigan State Bank v. 
 Hammond, People v. 
 Hammond v. Place, Har. Ch., 438. 
 
 Equity, 1381, 1415. 
 Hanford, Gilbert v. 
 Hanford, Sutton v. 
 Hanke, Webber v. 
 Hanson, Olcott v. 
 Hardgrave, Lee v. 
 Hardy, Crane v, 
 Harlan y. People, 1 Doug., 307. 
 Criminal Law, 868 to 870. 
 Harleston, Trowbridge v. 
 Harrington v. Fish, 10 Mich., 415. 
 
 Acknowledment of Deeds, 13,13 ; Deed, 1000, 1030, 1021, 
 Harrington y. Scott, 1 Mich., 17. 
 
 Possession of Lands, 2614 to 2616. 
 Harrington y. Worden, 1 Mich., 487. 
 
 Pleadings, 2558. 
 Hart, Hatch v. 
 Hart, Lapeer Co. v. 
 Hart y. Linsday, "Wal. Ch,. 72. 
 Equity, 1503 to 1505, 1513- 
 Hart V. Linsday, "Wal. Ch., 144. 
 
 Equity, 1525. 
 Hart V. McKeen, Wal. Ch., 417. 
 
 Equity, 1310, 1311, 1315. 
 Hartwell, Merrill v.« 
 Hartwell, People y. 
 Haryey y. Cady, 8 Mich., 431. 
 
 Baihnent, 336 ; Evidence, 1776. 
 Hasey v. White Pigeon Beet Sugar Co., 1 Doug., 193. 
 
 Bills and Notes, 373 to 375 ; Evidence, 1657 ; Practice in Circuit 
 Courts, 2691. 
 
38 TABLE OP CASES. 
 
 Hastings, Michigan State Bank v. 
 Hatch V. Hart, 3 Mich., 389. 
 
 Replevin, 3953. 
 Hatch V. Sqnier, 11 Mich., 185. 
 
 Evidence, 1719. 
 Hathaway, Bassett v. 
 Hathorn v. Lyon, 3 Mich., 93. 
 
 Curtesy, 945. 
 Haviland v. Parker, 11 Mich., 103. 
 
 Damages, 983. 
 Hawley, People v. 
 Hawley v. Sheldon, Har. Ch., 430. 
 
 Specific Performance, 3000, 3033. 
 Hazen, Brown v. 
 Hazzard, Truesdale v. 
 Heald v Bennett, 1 Doug., 513. 
 
 Action, 63 ; Justice of the Peace, 2190 ; Payment, 3505, 
 
 Cited, 1 Mich., 33. 
 Hemingway, Dennis v. 
 Hemingway_ v. Preston, "Wal. Ch., 538. 
 
 Possession of Lands, 3597. 
 Henderson, Bloomer v. 
 Henderson, Porter v. 
 Henning, Sleight v. 
 Henry, Montgomery v. 
 Hepburn, Perry v. 
 Herrick, Winslow v. 
 Herring v. Hock, 1 Mich., 501. 
 
 Certiorari, 533, 538. 
 
 Cited, 5 Mich., 538 ; 10 Mich., 13. ' 
 
 Herschfeldt v. George, 6 Mich., 456, 
 
 Fraud, &c., 1879 to 1881 ; Homestead, 1993, 1995. 
 Hewett V. Superintendents of the Poor, 5 Mich., 166. 
 
 Superintendents of Poor, 3075. 
 Hewett, Wurcherer v. 
 Hewlett v. Shaw, 9 Mich., 346. 
 
 Equity, 1475, 
 Hibbard v. People, 4 Mich., 135. 
 
 Constitutional Law, 617. 
 
 (7«M5Mich., 380; 13 Mich., 136. 
 Hibbard, Gibson v. 
 Hickey v. Baird, 9 Mich., 33. 
 
 Contracts, 704, 705; Error, 1550 ; Maxims, 3337. 
 Hickey v. Hinsdale, 8 Mich., 367. 
 
 Evidence, 1798 ; Statutes, 3056. 
 
 Cited, 9 Mich., 148. 
 Hickey v. Hinsdale, 13 Mich., 99. 
 
 Estoppel. 1635 ; Evidence, 1703 ; Replevin, 3936. 
 Hicks V. People, 10 Mich., 395. 
 
 Criminal Law, 901, 903. 
 Higrins V. Carpenter, Har. Ch., 256. 
 
 Equity, 1433, 1489. 
 Higgins, Deuel v. 
 Higgins, Lawson v. 
 Higgins, People v. 
 Higgins v. Watson, 1 Mich., 438. 
 
 Bills and Notes, 396 ; Bond, 471 ; Evidence, 1807, 1838 ; Guaranty, 
 
 1961 ; Maxims, 3333. 
 
 O'semded in part, 3 Mich., 188. 
 
TABLE OF CASES. 29 
 
 High, appellant, 2 Doug., 515, 
 
 Conflict of Laws, 569; Domicil, 1060; Evidence, 1658, 1803; Pro- 
 bate Courts, 2845 ; Wills, 3377,3381. 
 Cited, 5 Mich., 277, 368. 
 Highway Commissioners, French v. 
 Highway Commissioners v. Stockman, 5 Mich., 538. 
 
 Action, 36, 27 ; Evidence, 1656. 
 Higley v. Lant, 3 Mich., 613. 
 
 Certiorari, 518, 523 ; Error, 1584 ; Waiver, 3235. 
 Cited, 4 Mich., 199. 
 Hill, Brooks v. 
 Hill, Dixon v. 
 Hill, Pessenden v. 
 Hill V. La Fayette Insurance Co., 3 Mich,, 476. 
 
 Evidence, 1734 ; Insurance, 2053 ; Practice in Circuit Courts, 2732. 
 Hill, IN orris v. 
 Hill, Sackett v. 
 Hill, Stewart V. 
 Hill, Wilcox V. 
 Hilliker, Thome v. 
 Hillsdale Village, Cook v. 
 Hinchman V. City of Detroit, 9 Mich., 103. 
 
 Detroit City, 1029, 1030. 
 Hinchman, Edgarton v. 
 Hinchman v. Town, 10 Mich., 508. 
 
 Action, 37 ; Attachment, 284 to 286 ; Mortgage of Chattels, 2300. 
 Hiney v. Cade, 1 Mich., 168, 
 
 Error, 1567, 
 Hinkley, Barnard v. 
 Hinman v. School District Ko. 1, 4 Mich., 168. 
 
 Schools, 2966. 
 Hinsdale, Hickey v. 
 Hitchcock, Webster v. 
 Hoag V. Breman, 8 Mich., 160. 
 
 Action, 81. 
 Hoard v. Little, 7 Mich., 468. 
 
 Bills and Notes, 426 ; Pleadings, 2552. 
 Hobbs, Carter v. 
 Hoch v. People, 3 Mich., 552. 
 
 Criminal Law, 849, 850. 
 Hodenpuyl, Porter v. 
 Hodge, Littlefleld v. 
 Hoflmaan, People v. 
 Hogan V. Sherman, 5 Mich., 60. 
 
 Evidence, 1644, 1708 to 1710 ; Practice in Circuit Courts, 3655. 
 Hogge, Burtch v. 
 Holben, Gamber v. 
 Holbrook v. Cook, 5 Mich., 225. 
 Error, 1568, 1570. 
 Cited, 8 Mich., 114. 
 Holbrook, Prentiss v. 
 Holderman, Keller v. 
 Hollister, Beeson v. 
 Hollister v. Loud, 2 Mich , 809. 
 
 Assignment, 219, 223, 225, 228 to 231, 242, 243, 248 ; Equity, 1162 ; 
 Fraud, &c., 1869. 
 CJtei, 6Mich.,841,848. 
 HoUon, Comstock v. 
 Holmes, Clark v. 
 Holmes, Galloway v. 
 
30 TABLE OF CASES- 
 
 Holmes, Hale v. 
 
 Holmes v. Hall, 8 Mich., 66. 
 
 Contracts, 675 ; Mortgage of Chattels, 2289. 
 Holmes, Hurtford v. 
 Holmes, O'Flynn v. 
 Holmes, People v. 
 Holt V. People, 13 Mich., 224. 
 
 Criminal Law, 923 to 927. 
 Hopkin, Price v. 
 Hopkins, Hunter v. 
 Hopkins, Jerome v. 
 Hopson V. Payne, 7 Mich., 334. 
 
 Equity, 1296, 1397. 
 Homer v. Fellows, 1 Doug., 51. 
 
 Evidence, 1718 ; Fraudulent Representations, 1895 ; Warranty, S£E 
 Horton, Beardslee v. 
 Horton v. Ingersoll, 13 Mich., 409. 
 
 Equity, 1279, 1280 ; Mortgage of Lands, 2349. 
 Horton, Ingersoll v. 
 Horton, People v. 
 Hoskins, Maynardv. 
 Hosmer v. Wilson, 7 Mich., 294. 
 
 Action, 73, 74 ; Damages, 952. 
 
 Cited, 8 Mich., 520. 
 Hotchin v. Kent, 8 Mich., 526. 
 
 Partnerships, 2459 to 2461. 
 Hotchin v. Secor, 8 Mich., 494. 
 
 Payment, 2491, 2493. 
 Houghton, Hale v. 
 House V. Dexter, 9 Mich., 246. 
 
 Equity, 1378 ; Specific Performance, 3031. 
 How V. Camp, Wal. Ch., 427. 
 
 Assignment, 218 ; Equity, 1342 ; Fraud, &c., 1878. 
 How, State of Michigan v. 
 Howard, Gray v. 
 Howard, James v. 
 Howard v. Moore, 2 Mich., 226. 
 
 Estates of Deceased Persons, 1608, 1609. 
 
 Cited, 6 Mich., 507 j 12 Mich,, 360. 
 Howard v. Palmer, Wal. Ch., 391. 
 
 Equity, 1427, 1446, 1459, 1460. 
 Howard v. People, 3 Mich., 207. 
 
 Justices' Courts, 2187, 2188. 
 
 Cited, 7 Mich., 317. 
 Howard v. Rockwell, 1 Doug., 315. 
 
 Evidence, 1806 ; Judgments, 3121. 
 Hoyt V. Mapes, 3 Mich,, 522. 
 
 Appeal from Justices' Courts, 174. 
 Hoyt, Morris v. 
 Hubbard v Smith, 2 Mich., 207. 
 
 Adverse Possession, S"? ; Notice, 2428 ; Possession of Lands, 2596. 
 Hubbard v. Taylor, 5 Mich., 155. 
 
 Frauds, &c., 1864, 1894. 
 Hubbard, Williams v. 
 Hubbell's Administrators, Rockwell v. 
 Hudson, Jaquith v. 
 Hulbert, Edwards v, 
 Hulbert, Stafford v. 
 Hulbert v. Merriam, 3 Mich., 144. 
 
 Limitation of Actions, 2333, 2334 ; Statutes, 8063. 
 
TABLE OF CASES. 31 
 
 Hull, Achey v. 
 Humphrey, Caruthers v. 
 Hunt V. Thorn, 3 Mich., 313. 
 
 Equity, 1343 ; Estates of Deceased Persons, 1596 ; Evidence, 1703, 
 
 Specific Performance, 3002, 3010, 3014, 8015 ; Maxims, 3333. 
 Hunter v. Hopkins, 12 Mich., 337. 
 
 Equity, 1179. 
 Huntington v. Wellington, 12 Mich., 10. 
 
 Frauds, Statute of, 1899, 1900, 1904 to 1906. 
 Hunton v. Piatt, 11 Mich., 264. 
 
 Equity, 1174, 1267, 1309. 
 Hurd, Norris v. 
 Hurlburt v. Reed, 5 Mich., 30. 
 
 Attachment, 280. 
 Hurlbut V. Britain, Wal. Ch., 454. 
 
 Equity, 1334. 
 Hurlbut v. Britain, 2 Doug., 191. 
 
 Appeal from Chancery, 149 ; Contracts, 683 ; Coriwraticii?, ~ 1 ; 
 
 Equity, 1335 ; Evidence, 1817. 
 Hurtford v. Holmes, 3 Mich., 460. 
 
 Justic es Courts, 3151 ; Pleadings, 3531. 
 Huyser v Chase, 13 Mich., 98. 
 
 Landlord and Tenant, 3316 ; Possession of Lands, 2600. 
 Hyde v. Nelson, 11 Mich., 353. 
 
 Attachment, 396, 304 ; Certiorari, 518, 519. 
 Hyde, BTelson v. 
 Hydliff, Squire v. 
 IngersoU, Davis v. 
 Ingersoll v. Horton, 7 Mich., 405. 
 
 Specific Performance, 3005, 3006. 
 Ingersoll, Horton v. 
 IngersoU v. Kirby, Wal. Ch., 27. 
 
 Time, 3150. 
 Ingersoll v. Kirby, Wal. Ch., 65, 
 
 Equity, 1366, 1309, 1310. 
 Ingersoll, Kirby v, 
 Ingersoll, Maiden v. 
 Ingerson v. Starkweather, Wal. Ch., 846. 
 
 Principal and Agent, 2827. 
 
 Overruled m part, 1 Doug., 413 ; 5 Mich., 459 ; 13 Mich., 539. 
 
 Gited, 2 Mich., 195, 333 ; 11 Mich., 226. 
 Ireland, Bailee v. 
 Ireland v. Spalding, 11 Mich., 455. 
 
 Practice in Supreme Court, 2772. 
 Ives V. Bank of Lansingburgh, l3 Mich., 861. 
 
 Land Contract, 3204 ; Principal and Surety, 2839, 2840. 
 Ives, Dutton v. 
 Ives v. jilmball, 1 Mich., 308. 
 
 Acknowledgment of Deeds, 2 ; Deed, 1003, 1018 ; Evidence, 1771 ; 
 
 Probate Courts, 2846; Taxation, 3113; Variance, 3202; Maxims, 
 
 3333 
 
 Gitek, 4 Mich., 150 ; 6 Mich., 81 ; 9 Mich., 848. 
 Jackson v. City of Detroit, 10 Mich., 348. 
 
 Equity, 1238. 
 Jackson, City of Detroit v. 
 Jackson v. Dean, 1 Doug., 519. 
 
 Fraud, &c., 1883, 1883 ; Replevin, 2948, 
 
 Gited, 7 Mich., 114, 158, 
 Jackson v. Evans, 8 Mich., 476. 
 
 Evidence, 1828 to 1833. 
 
82 TABLE OF CASES. 
 
 Jackson v, Hosmer, 14 Mich. 
 
 Error, 1575. 
 Jackson v. People, 6 Mich., 154. 
 
 Sheriff, 2976. 
 Jackson v. People, 8 Mich., 262, 
 
 Error, 1572. 
 Jackson v. People, 9 Mich., 111. 
 
 Certiorari, 517 to 530 ; Ways, 3263. 
 CUeA, 11 Mich., 357. 
 Jackson, People v. 
 Jackson v. Sheldon, 2 Doug,, 154. 
 
 Statutes, 3071. 
 Jackson and Michigan Plank Eoad Co., Joy v. 
 Jackson and Michigan Plank Road Co., People v. 
 Jackson Iron Co. v. Farrand, 5 Mich., 249. 
 
 Practice in Supreme Court, 2803. 
 Jacobs, Chapin t. 
 Jacobs, Columbia Bank v. 
 Jacobs T. Stokes, 12 Mich., 381. 
 Jacobs, Stokes v. 
 Jacox V. Clark, "Wal. Ch., 249, 
 
 Waiver, 3223. 
 Jacox V. Clark, Wal. Ch., 508. 
 
 Equity, 1229. 
 Jagger v. Coon, 5 Mich., 31. 
 
 Practice in Circuit Courts, 2713a ; Practice in Supreme Court, 2753. 
 Jakeway, Cavenaugh v. 
 James v. Brown, 11 Mich., 25. 
 
 Mortgage of Lands, 3345, 3346 ; Notice, 2438 ; Recording Laws, 
 2938 
 
 Oitek, 13 Mich., 403. 
 James v. Howard, 4 Mich., 446. 
 
 Detroit City, 1041. 
 James v. Pontiac and Groveland Plank Road Co., 8 Mich., 91. 
 Plank Road Companies, 3538 to 2530, 
 Oited, 11 Mich., 169, 
 Jameson, Appellant, 1 Mich., 99. 
 
 Wills, 3282, 3283. 
 Jaquith v. Hudson, 5 Mich., 123, 
 
 Damages, 954 to 958 ; Practice in Circuit Courts, 3656, 
 Cited, 10 Mich., 38, 191. 
 Jenness, People v. 
 Jennison v. Parker, 7 Mich., 355. 
 
 Bills and Notes, 391 ; Principal and Agent, 2831. 
 CiUd, 11 Mich., 509, 
 Jennings v. People, 8 Mich., 81. 
 
 Criminal Law, 878, 879. 
 Jenny t. O'Plynn, 5 Mich., 215. 
 
 Appeal from Chancery, 147 ; Equity, 1418, 1419. 
 Giua, 6 Mich., 75. 
 Jerome, Bagg, v. 
 Jerome v. Hopkins, 2 Mich., 96. 
 
 Equity, 1342, 1248, Mortgage of Lands, 2336. 
 Jerome, People v. 
 Jerome v. Se3rmour, Har. Ch., 355. 
 
 Equity, 1485. 
 Jerome v. Seymour, Har. Ch., 357. 
 
 Mortgage of Lands, 2393, 
 Jerome v. Seymour, Wal. Ch., 359. 
 Equity, 1494, 1499. 
 
TABLE OP CA8ES. 33 
 
 Jerome, Seymour v. 
 
 Jerome, Washington County Bank v. 
 
 Jerome v. Williams, 13 Mich., 521, 
 
 Certiorari, 511a ; Judgments, 2118, 2119. 
 Je-wett V. Bennett, 3 Mich., 198, 
 
 Justices' Courts, 2186. 
 Jewett T. Pettit, 4 Mich., 508, 
 
 Contracts, 690, 691 ; Fraud, &c., 1862, 1863 ; Limitation of Actions, 
 
 2224, 2228. 
 Jewett, Thurber v. 
 Jewett, Ward v. 
 Johnson, Bowne v. 
 Johnson v Johnson, Wal. Ch,, 309. 
 
 Divorce, 1047 ; Equity 1390, 1417, 1429, 1431 ; Maxims 3330. 
 Johnson v. Johnson, wal. Ch., 381. 
 
 Mortgage of Lands 2381, 2385, 2386 ; Payment 2500. 
 Johnson v. Provincial Insurance Co., 11 Mich., 455. 
 
 Practice in Supreme Court 2816, 
 Johnson v. Provincial Insurance Co., 12 Mich., 216. 
 
 Former Suit 1858 ; Practice in Supreme Court 2796. 
 Johnson, Sibley v. 
 Johnson v. Wing, 3 Mich., 163. 
 
 Fences 1847, Keplevin 2940. 
 Johnstone v. Scott, 11 Mich,, 232. 
 
 Deed, 1003, 1012 ; Evidence 1706, 1707, 1769, 1770 ; Evidence 1820, 
 
 1835 ; Mortgage of Lands 2368 ; Taxation 3109, 3110. 
 Jones V. Disbrow, Har, Ch., 102. 
 
 See Disbrow v Jones. 
 
 Cited, Wal. Ch.. 378. 
 Jones, Disbrow v. 
 Jones, Livingston v. 
 Jones V. Palmer, 1 Doug. 379. 
 
 Consideration 588 ; Frauds, Statute of 1899. 
 
 €tted, 2 Dong. 529 ; 3 Mich., 192 ; 5 Mich., 363 ; 8 Mich., 54. 
 Jones, People v. 
 Jones V. Phelps, 5 Mich., 218. 
 
 Contracts 674 j Evidence 1672, 1834. 
 Jones, Rood v. 
 Jones V. Smith, Wal. Ch., 115. 
 
 Equity, 1202. 
 Jones v.*Tyler, 6 Mich., 364. 
 
 Evidence 1721 ; Gift 1926 to 1928 ; Specific Performance 2996. 
 Jones, Wales v. 
 Jones V. Wing, Har. Ch., 301. 
 
 Equity, 1149, 1336. 
 Joy V. Jackson and Michigan Plank Road Co., 11 -Mich., 155. 
 
 Constitutional Law, 650 ; Corporations, 733 ; Equity, 1382 ; Plank 
 
 Road Companies, 2516 to 2519. 
 Joy V. Thompson, 1 Doug., 373. 
 
 Constitutional Law, 596. 
 
 Cited, 1 Mich., 410 ; 4 Mich., 168. 
 Judges of Branch Circuit Court, People v. 
 Judges of Calhoun Circuit Court, People T. 
 Judges of Cass Circuit Court, People v. 
 Judges of Jackson Circuit Court, People v. 
 Judges of Macomb Circuit Court, People v. 
 Judges of Washtenaw Circuit Court, People v. 
 Judge of Wayne Circuit Court, People v. 
 Judge of Wayne County Court, People v. 
 Kalamazoo Mutual Mutual Insurance Co., Cahill v. 
 
34 TABLE OF CASES. 
 
 Kanouse, Van Husan v. 
 
 Eassick, Wilcox v. 
 
 Kean v. Mitchell, 13 Mich., 207. 
 
 Pleadings, 3562 to 2565. 
 Kearsley, Ready v. 
 Keller v. Holderman, 11 Mich., 248. 
 
 Contracts, 677. 
 Kellogg V. Barnes, Har. Ch., 258. 
 
 Equity, 1410. 
 Kellogg T. Putnam, 11 Mich., 344. 
 
 Appeal from Chancery, 148 ; Equity, 1421. 
 
 Cited, 13 Mich., 480. 
 Kelsey V. City of Detroit, 7 Mich., 315. 
 
 Detroit City, 1040. 
 Kelso V. Camp, Wal. Ch., 427. 
 
 See How v. Camp. 
 Kendall, Smith v. 
 Kendrick, Page t. 
 Kent, Hotchin v. 
 Kent V. May, 18 Mich., 38. 
 
 Contracts, 694. 
 Kent, People v. 
 Kenyon, Buhl v. 
 Kephart v. Farmers and Mechanics' Bank, 4 Mich., 603. 
 
 Appeal from Chancery, 127. 
 Kercheval, Farmers and Mechanics' Bank v. 
 Kercheval t. "Wood, 3 Mich., 509. 
 
 Judgments, 3094. 
 Kermott v. Ayer, 11 Mich., 181. 
 
 Conflict of Laws, 570 ; Error, 1562 ; Evidence, 1799, 1803 ; Usage, 
 
 8190. 
 Ketcham, SiU v. 
 Keyes, Stout v. 
 Kibbe v. Andrews, 13 Mich., 94. 
 
 See Andrews v. Kibbee. 
 Kibbee, Andrews v. 
 Kibbee, Michigan Insurance Co. v. 
 Kibbe v. Thompson, 6 Mich., 410. 
 
 Contracts, 701. 
 Kimball v. Cleveland, 4 Mich., 606. 
 
 Banks and Banking 338. 
 Kimball, Ives v. 
 Kimball, People v. 
 Kimball, Porter v. 
 Kimball v. "Ward, Wal. Ch., 439. 
 
 Equity, 1340. 
 Kimmel, Bacon v. 
 
 Kimmell, Farmers and Mechanics' Bank v, 
 Klmmell v. Willard's, Administrators 1 Doug. 217. 
 
 Mortgage of Lands, 3364, 3383. 
 Kingv, Moore, 10 Mich., 538. 
 
 Husband and Wife, 3034 ; Judgments, 2117 ; 
 , Practice in Circuit Courts, 2741. 
 King, Wright v. 
 
 Kingsley, Farmers and Mechanic's Bank v. 
 Kinman, Atwater v. 
 Kinnie v. Owen, 1 Mich., 249. 
 
 Pleadings, 2573. 
 
 Cited, 9 Mich., 502. 
 
TABLE OF CASES. 35 
 
 Kinyon v. Fowler, 10 Mich., 18. 
 
 Justices Courts, 2178, 3179. 
 Kinzie v. Farmers and Mechanics' Banlv, 3 Doug. 105. 
 
 Bills and Notes, 421 ; Vendor and Purchaser, 3307. 
 Kirby v. IngersoU, Har. Ch., 172. 
 
 Assignment, 313 to 314 ; Fraud &c., 1859 to 1861. 
 
 Affirmed, 1 Doug. 477. 
 
 Cited, 2 Mich., 103. 
 Kirby v. IngersoU, 1 Doug. 477. 
 
 Assignment, 212 to 314 ; Partnership, 3481. 
 
 Cited, 3 Doug. 294. 
 Kirby, IngersoU v. 
 Kline v. Moulton, 11 Mich., 370. 
 
 Estates of Deceased Persons, 1594, 1595. 
 Kneeland, Taylor v. 
 Knight V. Emmons, 4 Mich. 554. 
 
 Practice in Circuit Courts, 3684, 3685. 
 Knight, People v. 
 Koster v. People, 8 Mich., 431. 
 
 Criminal Law, 832, 913. 
 Lacey v. Davis, 4 Mich., 140. 
 
 Board of Supervisors, 430 ; Evidence, 1789, 1808, 1831, 
 
 Taxation, 3077, 3089, 3090, 3098, 3103, 3107. 
 
 Cited, 5 Mich., 155 ; 9 Mich., 339 ; 13 Mich., 416. 
 Lacey, Orr v. 
 Ladue, Butler v. 
 Ladue v. Detroit and MUwaukee Eailroad Co., 13 Mich., 380. 
 
 Mortgage of Lands, 2319, 2331, 2333. 
 La Fayette Insurance Co., Hill v. 
 LaG-range township v. Chapman, 11 Mich. 499. 
 
 Action, 39 ; Evidence, 1816 ; Pleadings, 3546. 
 Laing, Belden v. 
 Laing v. McKee, 13 Mich., 134. 
 
 Equity, 1150 ; Frauds, Statute of, 1907. 
 Lake, Lee v. 
 Lamb, Tower v. 
 Lambert, People v. 
 Lampman, Flanigan v. 
 Lane, Thayer v. 
 L£;ngley v. Ergensinger, 3 Mich., 314. 
 
 Constitutional Law, 653. 
 Lant, Higley v. 
 Lantis, Matter of, 9 Mich., 334. 
 
 Certiorari, 513, 515. 
 
 Cited, 13 Mich., 114, 
 Lapeer County v. Hart, Har. Ch., 157. 
 
 Equity, 1168, 1164. 
 Lapeer and Port Huron Plank Eoad Co., Barnard v. 
 La Plaisance Bay Harbor Co., v. City of Monroe, Wal. Ch., 155. 
 
 Grants, 1939 ; Navigable Waters, 3404, 2405, 2413 ; 
 
 Ordinance of 1787, 2444 to 3446. 
 Larkin v. Saginaw Co., 11 Mich., 88. 
 
 Action, 33 ; Counties, 759, 760, 
 Lamed v. Wilcox, 4 Mich., 338. 
 
 Practice in Circuit Courts, 3637, 3731. 
 La Roe v. Freeland, 8 Mich., 531. 
 
 Appeal in Probate Cases, 183 ; Contracts, 703. 
 La Roe v. Roeser, 8 Mich., 537. 
 
 Criminal Law, 944. 
 
 30 
 
38 TABLE OF CASES. 
 
 LaRue, Wood v. 
 
 Lastly V. Cramer, 3 Doug. 307. 
 
 Limitation of Actions, 2234 
 
 Cited, 1 Mich., 410 ; 3 Mich., 149 ; 4 Mich., 168. 
 Lathrop, Agent of State Prison v. 
 Lathrop v. Hicks, 2 Doug. 223, 
 
 Practice in Supreme Court, 2764 to 3767. 
 Latimer v. Lovett, 2. Doug. 304. 
 
 Taxation, 3118. 
 
 Cited, 1 Mich., 316 ; 3 Mich., 493; 9 Mich., 343. 
 Latimer v. Woodward, 3 Doug., 368. 
 
 Possession of Lands, 3609, 3614. 
 Lawrence, Bruclsner's Lessee v. 
 Lawrence, Chandler v, 
 Lawrence v. Fellows, Wal. Ch., 468. 
 
 Equity, 1532. 
 Lawrence, Smith v. 
 Lawson v. Higgins, 1 Mich., 335. 
 
 Boat and vessel Law, 438. 
 
 Cited, 11 Mich., 133. 
 Lawyer v. Smith, 8 Mich., 411. 
 
 Evidence, 1659 ; Wills, 8296, 3297. 
 Leahey, Michigan Central Railroad Co., v. 
 Leavitt v. Leavitt, 13 Mich., 453. 
 
 Divorce, 1050, 1058, 1059. 
 Lecour, Buchoz v. 
 Leddy, Matter of, 1 Mich., 197. 
 
 Criminal Law, 899, 900. 
 Lee V. Hardgrave, 3 Mich., 77. 
 
 Certiorari, 525, 526 ; Error, 1541, 1560 ; Partnership, 2473 ; Prac- 
 tice in Supreme Court, 3788. 
 Lee V. Lake, 13 Mich., 330. 
 
 Practice in Circuit Courts, 3743. 
 Lee V. Lake, 14 Mich. 
 
 Town Plats, 3155, 3157 ; Ways, 3244, 3345. 
 Lee V. Mason, 10 Mich., 403. 
 
 Mortgage of Lands, 3366, 3367. 
 Lee, Nichols v. 
 Lee V. Payne, 4 Mich., 106. 
 
 Action, 34 ; Estoppel, 1617 ; Evidence, 1827 ; Landlord and Tenant, 
 
 2207, 2214 ; State Lands, 3043. 
 LeFevre v. Mayor, &c., of Detroit, 2 Mich., 586. 
 
 Taxation, 3133 to 3135. 
 Leonard v. Taylor, 13 Mich., 398. 
 
 Equity, 1523, 1524. 
 Lesia, Little v. 
 Lester v. Sutton, 7 Mich., 329. 
 
 Evidence, 1646, 1751 ; Practice in Supreme Court, 2815. 
 Lewis, Bissell v. 
 Lewis V. Nelson, 4 Mich., 630. 
 
 Trusts, 3179, 3180. 
 Lewis, Rose v. 
 Lewis V. Soule, 3 Mich., 514. 
 
 Libel, 2320 to 3332. 
 Lewis, Turner v. 
 Lewis, Woodbury v. 
 Linsday, Hart v. 
 Litchfield, Came v. 
 Litchfield, Daley y. 
 
TABLE OF CASES. 317 
 
 Litchfield v. Garratt, 10 Mich., 426. 
 
 Action, 39, 41 ; Assignment, 310 ; Practice in Circuit Courts, 2662. 
 Litchfield, Garratt v. 
 Littell V. Pitch, 11 Mich., 52a 
 
 Partnership, 2464. 
 Little V. Derby, 7 Mich., 325. 
 
 Action, 58 to 60. 
 Little, Fraser v. 
 Little, Hoard v. 
 Little V. Lesia, 5 Mich., 119. 
 
 Deed, 993. 
 
 Oited, 6 Mich., 538. 
 Xittle, Bobeitson, v. 
 Little, Stephenson V. 
 Littlefield v. Hodge, 6 Mich„ 326. 
 
 Bills and Notes, 389 ; "Garnishees, 1924. 
 Littlejohn, Pemile v. 
 Livingston v, Jones, Har. Ch., 165. 
 
 Acknowledgment of Deeds, 1 ; Equity, 1387 ; Guardian and Ward, 
 
 1963. 
 Lockwood V. Beckwitii, 6 Mich., 168. 
 
 Equity, 1218 to 1230 ; Evidence, 1720 ; Partnership, 2478, 2479. 
 
 CUed, 8 Mich., 43. 
 Lockwood V. Drake, 1 Mich., 14. 
 
 Ejectment, 1080 ; Practice in Circuit Courts, 2674, 3675. 
 Logan V. Anderson, 2 Doug., 101, 
 
 Landlord and Tenant, 3315. 
 Longstreet, Willard v. 
 Loomis V. Foster, 1 Mich., 165. 
 
 Replevin, 3948. 
 Loranger, Wadsworth v. 
 Lord, People v. 
 Lordv. Strong, 6 Mich., 61, 
 
 Damages, 953. 
 Loree v. Beeves, 2 Mich., 133. 
 
 Attachment, 381 ; Attorneys, &c^ 814, 
 
 Oited, 5 Mich., 30. 
 Lormanv. Benson, 8 Mich., 18. 
 
 Common Law, 553 ; Deed, 1016 ; Navigable "Waters, 2412 to 2415. 
 
 Cited, 10 Mich., 125, 138, 144, 189. 
 Lorman v. Benson, 9 Mich., 237. 
 
 Practice in Circuit Courts, 2729. 
 Lothrop V. Southworth, 5 Mich., 436. 
 
 Evidence, 1797 ; Injunction Bond, 3045 to 3048 ; Pleadings, 3S55, 
 
 2556. 
 Load, Hollister v. 
 Lovett, Latimer v. 
 Lowe, Berry v. 
 
 Lowell Township Board, People v, 
 Lowry, Buckley v. 
 Lull V. Curry, 10 Mich., 397. 
 
 "Ways, 3273. 
 Lull V, Davis, 1 Mich., 77. 
 
 Action, 20. 
 Lyell, Burgan v. 
 Lyell, Chamberlain v. 
 Lyell V. Sanboum, 2 Mich., 109. 
 
 Error, 1551 ; Partnership, 2465 ; Principal and Agent, 2818. 
 Lynch v. Bruce, 3 Doug., 133. 
 
 Replevin, 2957. 
 
TABLE OF CASES. 
 
 Lyon, Hathon v. 
 
 Lyon, Wales v. 
 
 Lyon, Weed v. 
 
 Mack V. .Doty, Har, Ch., 366. 
 
 Equity, 1125 to 1121. 
 Mack, Thompson v. 
 Mahaney, People v. 
 Mahar, Malony v. 
 Maher v. People, 10 Mich., 313. 
 
 Criminal Law, 783, 784, 787 to 791, 933, 
 Mahoney, Dixon v. 
 Maiden v. Ingersoll, 6 Mich., 373. 
 
 Treaty, 3166. 
 Maitland, Aldrich v. 
 Major, Cuddy v. 
 Malony y, Mahar, 3 Doug., 432, and 1 Mich., 36. 
 
 County Treasurer, 766. 
 M-andeviUe v. Comstock, 9 Mich., 536. 
 
 Deed, 1011, 1023; E<iuity, 1356. 
 Mandlebaum, Moore v. 
 Mandlebaum V. North AniiericanMimnsCo.,4Mich., 465. 
 
 Estoppel, 1632. 
 Mann, Dye v. 
 Mann, Webb v. 
 Manning v. Drake, 1 Mich., 34. 
 
 Equity, 1237 to 1339, 1361 ; Estates o* Deceased Persons, 1614 ; 
 
 Fraud, &c., 1877. 
 Manning, Pierson v. 
 Manning v. Williams, 3 Mich., 105. 
 
 Partnership, 2482. 
 Mansfield, Franklin r. 
 Mapes, Hoyt v, 
 Marathon v. Oregon, 8 Mich., 372. 
 
 Mandamus, ^5 ; Townships, 3162, 
 
 Gited, 10 Mich., 309. 
 Markham v. Markham, 4 Mich., 305. 
 
 Equity, 1367, 1368. 
 Marsh v. Butterworth, 4 Mich., 575. 
 
 Estoppel, 1617 ; Landlord and Tenant, 3209, 
 Martin, Commissioners of Highways v. 
 Martin y. McReynolds, 6 Mich., 70. 
 
 Appeal from Chancery, 146 ; Equity, 1263, 1263, 1373, 1389 ; Mort- 
 gage of Lands, 3352. 
 
 Cited, 13 Mich., 350; 6 Mich., 156. 
 Marvin v. Schilling, 12 Mich., 356. 
 
 Estates of Deceased Persons, 1593 ; Guardian and Ward, 1978 to- 
 
 1981. 
 Mason, Matter of, 8 Mich., 70. 
 
 Criminal Law, 940, 941 ; Habeas Corpus, 1983, 1985. 
 Mason v. Detroit City Bank, Har. Ch., 222. 
 
 Equity, 1392, 1393. 
 Mason, Lee y. 
 Mason V. Payne, Wal. Ch., 459. 
 
 Equity, 1404 ; Mortgage of Lands, 2377 to 3379 ; Vendor and Pur- 
 chaser, 3211. 
 
 CUed, 10 Mich., 41 ; 12 Mich., 110 j 13 Mich,, 474, 
 Masten, Smalley v. 
 Matthews, Paddock v. 
 May, Kent t. 
 
TABLE OF CASES. 89 
 
 May, People V. 
 
 May V, Rumney, 1 Mich., 1. 
 
 Dower, 1064, 1068. 
 -May v. Specht, 1 Mich., 187. 
 Dower, 1067; Treaty, 3165. 
 Cited, 1 Mick, 263 ; 6 Mich., 188. 
 May V. Tilbaan, 1 Mich., 262. 
 Dower, 1067 ; Estoppel, 1623. 
 GUed, 6 Mich., 189. 
 Maynard v. Hoskina, 8 Mich., 81. 
 
 Appeal from Chancery, 134. 
 Jttaynard v. Hoskina, 8 Mich», 260. 
 
 Appeal from Chancery, 125, 133. 
 Maynard V. Hoskins, 9 Mieh., 485. 
 
 Attachment, 289 ; Judgments, 2096, 209,7. 
 Oited, 11 Mich., 251. 
 jyiaynard v. Penniman, 7 Mich., 333. 
 
 Practice in Supreme Court, 2773, 2774. 
 -Maynard v. Penniman, 10 Mich„ 153. 
 
 Error, 1562. 
 JUaynards t. Comwell, 3 Mich^ 309. 
 
 Garnishees, 1915, 1919 ^ Statutes, 3059. 
 OiUd, 7 Mich., 106. 
 Mayor, &c», of Ann Arbor, Root y. 
 Mayor, &c., of Detroit, Devauxv. 
 JUayor, &c., of Detroit t. Jackson, 1 Doug., 106. 
 
 See City of Detroit y. Jackson. 
 Mayworm, People v, 
 Maxwell, "Wight y. , 
 
 -McAdam, Smith y. 
 JUcBride v. Cieotte, 4 Mick., 4,78. 
 
 Error, 1561 ; Evidence, 1640,1641, 1675, 1754;; Practice an Supjfim* 
 Court, 2785 ; Waiver, 3227, 
 Oited, 5 Mich., 230. 
 JUcCauley, Tinker v. 
 McClurg, Durfee v. 
 McCormick, Picard y. 
 McDonald y. Butler, 3 Mich., 558. 
 
 Judgments, 2084. 
 McDonald, People y. 
 McDowell, Simmons y. 
 McDowell, Wing v. 
 McGraw v, Pettibone, 10 Mich., 536. 
 
 Equity, 1223 to 1225. 
 McGrraw, Pettibone y. 
 McHardy v. Wadsworth, 8 Mich., 349. 
 
 Pleadings, 2584, 3586 -, Practice in Circuit Courts, 3694,-; Recoup- 
 ment, 2931. ^ 
 McHenry, Noryell y. 
 Mclntyre, Brooks y. 
 McKee, Laing y. 
 McKee v. WUcox, 11 Mich., 358. 
 
 Homestead, 2006, 2009 ; Possession of Lands, 2594, 2595. 
 McKee, Young y. 
 McKeen, Hart y. 
 McKibben, Allen y. 
 McKibben y. Barton, 1 Mich,, 313.' 
 
 Equity, 1300. 
 HcKinney, Chandler y. 
 
40 TABLE OF CASES. 
 
 McKinney, People v. 
 
 McLaughlin v. Detroit and Milwaukee Railway Co., 8 Mich., 100. 
 
 Corporations, 734 to 736. 
 McLean v. Barton, Har. Ch., 279. 
 
 Equity, 1311, 1213, 1214 
 
 GUed, 1 Mich., 407, 410. 
 McMurtrie v. Bennette, Har. Ch., 124. 
 Specific Performance, 2995, 2997, 2998, 3000,, 3001.. 
 
 Ctfeci, Har. Ch., 393. 
 McNair, Booth v. 
 McNoah, Tefft v. 
 McQueen,, Booth v. 
 McQueen, Spier v. 
 McReynolds v. Goddard, 1 Mich., 512. 
 
 See State of Michigan t. How. 
 
 Cited,. 1 Mich., 483. 
 McReynolds, Martin v. 
 Mead,Bowen v. 
 Mead, Brooks v. 
 Mead, Sweetzer v. 
 Mercer v. WiUiams, Wal. Ch., 85. 
 
 Eminent Domain, 1101, 1107 ; Territorial Council, 314&.. 
 
 Oited, 5 Mich., 348. 
 Merriam,,Huibert v. 
 Merrick, Brighton Market Bank v. 
 Merrick v. Webster, a Mich., 268.. 
 
 Carriers of Goods, 499. 
 Merrill v. Cahill, 8 Mich., 55. 
 
 Millers, &c., 2377 to 3280. 
 Merrill v. Hartwell, 11 Mich., 200. 
 
 Land Warrant, 2205, 2206. 
 Metcalf, Tweedy.. 
 Michael, Woodrow v.. 
 Michigan Central Railroad Co. r. Hate, 6 Mich., 243^ 
 
 Carriers of Goods, 487 to 489, 494. 
 Michigan Central Railroad Co. v. Leahey, 10 Mich., 193. 
 
 Negligence, 3416, 3422. 
 Michigan Central R. R. Co. t. Michigstn Southern R. R. Co., 4 Mich., 362^.. 
 
 Michigan Central R. R. 2268. 
 Midiigan Central' Railroad Co., Moore v. 
 Michigan Central Railroad Co. v. Ward, 3 Mich., 538. 
 
 Carriers ofGoodsv489, 494. 
 
 Overruled. 6 Mich., 243. 
 Michigan Central Railroad Co., WnKams v. 
 Michigan Insurance Co. v. Brown, 11 Mich., 265.. 
 
 Appeal from Chancery, 145 r Mortgage of Lands,. 3334, 2396 ; Pay- 
 ment, 2496.. 
 Michigan Insurance Co. t. Kibbee, 6 Mich., 410. 
 
 Payment, 2499 ; Contracts, 701. 
 Michigan Insurance Co. v. Whittemore, 13 Mich., 311. 
 
 Appeal from Chancery, 113, 138. 
 Michigan Insurance Co. v, Whittemorev 13 Mich., 437: 
 
 Appeal ftomt, Chancery, 146 ; Equity, 1420, 1500. 
 Michigan Southern R. R. Co., Michigan Central R, R. Co, v. 
 Michigan Southern R. R. Co., People v. 
 Michigan Southern and Northern Indiana R. R. Coj v. Auditor- Gene-^ 
 
 ral 9 Mich 448. 
 
 Michigan Southern R. R. Co., 2371 to 3376. 
 Michigan Southern and. Korthem Indiana Railroad Co. v. Davis,. T 
 
 Mich.» 10. 
 
TABLE OF CASES. 41 
 
 (Note to Sanger and Tniesdail), Practice in Supreme C ourt, 2803. 
 Michigan Southern and Northern Indiana R. R, Co., People v. 
 Michigan Southern and Northern Indiana R. R. Co. t. Shurtz, 7 
 
 Mich., 515. 
 
 Carriers of Goods, 493, 493. 
 Michigan State Bank, Attorney-General v. 
 Michigan State Bank, Freeman v. 
 Michigan State Bank v, Hammond, 1 Doug., 527. 
 
 Principal and Agent, 2824 ; State of Michigan, 3038 to 3042; Equity, 
 
 3310. 
 Michigan State Bank, Hammond v. 
 Michigan State Bank v. Hastings, Wal. Ch., 9. 
 
 Equity, 1406; Principal and Agent, 3834 ; State of Michigan, 3038. 
 
 Affirmed on different grounds, 1 Doug. 325. See 1 Doug., 527. 
 Michigan State Bank v. Hastings, 1 Doug., 225. 
 
 Conditions, 561 to 568 ; Constitutional Law, 595. 
 
 Followed, 1 Doug., 527 ; Cited, 3 Mich., 346. 
 Middlesworth t. Nixon, 3 Mich., 435. 
 
 Equity, 1240 ; Evidence, 1738. 
 Miles, People t. 
 Miles, Roberts v. 
 Miles V. Walker, 4 Mich., 641. 
 
 Omrruled,5 Mich., 462, 491, 
 Millard v. Ramsdell, Har. Ch., 373. 
 
 Equity, 1346 ; Partnership, 2484 ; Specific Performance, 3995, 
 
 3998, 
 Millard, Ramsdell v. 
 Miller, Bumpus v. 
 Miller v. Chaffee, 1 Mich,, 357. 
 
 Error, 1584. 
 
 Cited, 5 Mich., 538; 8 Mich., 429. 
 Miller, Elliott v. 
 Miller V. Grandy, 13 Mich., 540. 
 
 Bounty, 480 ; Equity, 1137 to 1139 ; Statutes, 3074. 
 Millerd, Dexter and Mason Plank Road Co. v. 
 MiUerd v. Reeves, 1 Mich., 107. 
 
 Action, 31 ; Practice in Circuit Courts, 2711 ; Practice in Supreme 
 
 Court, 3809 ; Water Rights, 3334. 
 Mills, Matter of 
 
 Attorneys, &c., 309 to 311. 
 Mills, Fleming v. 
 Mills V. Spencer, 3 Mich., 137, 
 
 Pleadings, 3540 to 3543 ; Principal and Surety, 2844. 
 Millspaugh, People v. 
 Minnesota Mining Co. v. National Mining Co., 11 Mich., 186. 
 
 Error, 1551 ; Public Lands, 2862. 
 
 Affirmed by Supreme Court of U. S. (1866). 
 Minnesota Mining Co., Titus v. 
 Mitchell, Kean v. 
 Mitchell, Page v. 
 Mitchell, Smith v. 
 Monroe, Mundy v. 
 Monroe v. Township of Rowland, 1 Mich., 318. 
 
 Townships, 3158. 
 Montgomery v. Henry, 10 Mich., 19. 
 
 Practice in Circuit Courts, 3637. 
 Montgomery v. Wight, 8 Mich., 143, 
 
 Conflict of Laws, 574 ; Mortgage of Chattels, 3393. 
 Moore, American Transportation Co. v. 
 
43 TABLE OF CASES. 
 
 Moore, Clark v. 
 
 Mojre, Howard v. 
 
 Moore, King v. 
 
 Moore v. Mandlebaum, 8 Mich., 433. 
 
 Action, 55, 56; Principal and Agent, 2829, 2830. 
 Moore v. Michigan Central Railroad Co., 3 Mich., 23. 
 
 Carriers of Goods. 490 ; Warehousemen, 3231. 
 Moore, Moynahan v. 
 Moore v Olin, 6 Mich., 328. 
 
 Appeal from Chancery, 128. 
 Moore v. People, 2 Doug., 420.^ 
 
 Evidence, 1781, 1783. 
 Moore, People v. 
 Moore v. Sanborne 2 Mich., 519. ' 
 
 Navigable Waters, 2406 to 2410 ; Negligence, 2419 to 2421 ; Ordir 
 
 ance of 1787, 2447. 
 
 Cited, 7 Mich., 422 ; 9 Mich., 191 ; 11 Mich., 145. 
 Moors, Stadler v. 
 Moran v. Palmer, 13 Mich., 367. 
 
 Equity, 1114 1171, 1242, 1245, 1380 ; Partnership, 2472 ; Recording 
 
 Laws, 2920 
 Morey v. Porsyth, Wal. Ch., 465. 
 
 Equity, 1258, 1259 ; Vendor and Purchaser, 3210. 
 
 Cited, 6 Mich., 78 ; 12 Mich., 350, Wal. Ch., 499. 
 Morgan v. Butterfleld, 3 Mich., 615. 
 
 Contracts, 694, 
 Morrill v. Seymour, 3 Mich., 64, 
 
 Judgments, 2114. 
 Morris v. Hadley, 9 Mich., 278. 
 
 Equity, 1235, 1236. 
 Morris v, Hoyt, 11 Mich., 9. 
 
 Equity, 1355 ; Specific Performance, 3004, 3019, 3024 to 3030 ; Max- 
 ims, 3310. 
 Morris v. Morris, 5 Mich., 171. 
 
 Appeal from Chancery, 141 ; Equity, 1288, 1356, 1468 ; Fraud, &c., 
 
 1892 ; Payment, 2495. 
 Morrissey v. People, 11 Mich., 327. 
 
 Criminal Law, 810, 811, 903, 904, 930 ; Error, 1562 ; Evidence, 1667 
 
 to 1669, 1727. 
 Morrison, Crip pen v, 
 Morse, Cicotte v. 
 Morse v. Congdon, 3 Mich., 549. 
 
 Evidence, 1638, 1639, 1673. 
 Morse, Fish v, 
 Morton, Matter of, 10 Mich., 208. 
 
 Habeas Corpus, 1984 ;. Prohibitory Liquor Law, 2856. 
 
 Cited, 13 Mich , 68 
 Moser, Shaw v. 
 Moses V. SteamboatMissouri, 1 Mich., 507. 
 
 Boat and Vessel Law, 439. 
 
 Cited, 1 Mich., 173. 
 Mosher, Daniels v. 
 Moulton, Kline v. 
 Mowrey, Tucker v. 
 Mowrey v. Vandling, 9 Mich., 39. 
 
 Equity, 1307,1308 j Evidence, 1823 ; Vendor and Purchaser, 3213. 
 Mowyer, Clark v. 
 Moyer v. Pine, 4 Mich., 409. 
 
 Slander, 2989, 2993, 2994. 
 
TABLE QF CASES. 43 
 
 Moynahan v. Moore, 9 Mich., 9. 
 Mechanics' Lien, 22(i7. 
 Cited, 12 Mich., 278. 
 Mundy, Eggleston v. 
 Mundy v. Monroe, 1 Mich., 68. 
 
 Constitutional Law, 600 ; Mortgage of Lands, 2339, 2340, 2369. 
 Cited, 3 Mich., 624 ; 5 Mich., 865; 11 Mich., 246, 255 ; 13 Mich., 86. 
 Hunger v. Grinnell, 9 Mich., 544. 
 
 Practice in Circuit Courts, 2673. 
 Murphy, Bailey v. 
 Myers v. Carr, 12 Mich., 63. 
 
 Contracts, 717 ; Pleadings, 2544, 2574. 
 Nail T. Granger, 8 Mich., 450. 
 
 Officer, 2440. 
 Nash, Chandler v. 
 Nash, Hall v. 
 
 National Mining Co., Minnesota Mining Co. v. 
 Nelson, Bachelor v. 
 Nelson v. Hyde, 10 Mich., 521. 
 
 Attachment, 303. 
 Nelson, Hyde v. 
 Nelson, Lewis v. 
 Nevius T. Bank of Lansingburgh, 10 Mich., 547. 
 
 Bills and Notes, 400, 414, 415 ; Guaranty, 1959, 1960. 
 Cited, 13 Mich., 278. 
 Newberry, Bronson v. 
 Newberry, Fitch v. 
 Newberry, Spies v. 
 
 Newberry v. Trowbridge, 4 Mich., 391. 
 Bills and Notes, 406, 414. 
 
 Ovemded in part, 9 Mich., 211 ; 10 Mich., 547. 
 See 13 Mich., 278. 
 Newberry v, Trowbridge, 13 Mich., 263. 
 
 Bills and Notes, 397, 398, 418 to 430 ; Evidence, 1712 ; Practice in 
 Circuit Courts, 2639; Res Judicata, 3961 ; Set Off, 2970, 2971. 
 Newbould, Wales v. 
 Newell V. Blair, 7 Mich., 103. 
 
 Appeal from Justices' Courts, 160 ; Garnishees, 1920 to 1933. 
 Cited, 12 Mich., 123. 
 Newsam v. Hart, 14 Mich. 
 
 Estrays, 1634. 
 Niagara Fire Insurance Co. v. DeGraff, 12Mich., 10. 
 
 Practice in Supreme Court, 2784. 
 Niagara Fire Insurance Co. v. De Graff, 12 Mich., 124. 
 Error, 1552, 1556 ; Insurance, 2056, 2057, 3067, 3068. 
 Nicliols, Bennett v. 
 Nichols v. Lee, 10 Mich., 536. 
 
 Guardian and Ward, 1975 ; Mortgage of Lands, 2357, 3394. 
 Niles, Bank of Michigan v. 
 Niles, Graves v. 
 Niles V. Ransford, 1 Mich., 338. 
 
 Estoppel, 1618 ; Mortgage of Lands, 2355, 2365. 
 Cited, 11 Mich., 246. 
 Niles V. Rhodes, 7 Mich., 374. 
 
 Evidence, 1711 ; Practice in Supreme Court, 2795. 
 Cited, 10 Mich., 11. 
 Niles V. Walker, 4 Mich., 641. 
 
 Overruled, 5 Mich., 463, 491. 
 Niver, Shafer v. 
 
44 TABLE OF CASES. 
 
 Nixon, Middlesworth v. 
 
 Norris, Evans v. 
 
 Norris v. Hill, 1 Mich., 302. 
 
 Contracts, 666; Deed, 1015 ; Equity, 1143, 1148, 1238 ; Notice, 2429. 
 Norris v. Kurd, Wal. Ch., 102. 
 
 Equity, 1153, 1355 ; Evidence, 1653, 1655. 
 Norris v, Showerman, Wal. Ch.. 306. 
 
 Contracts, 669, 670 ; Equity, 1231. 
 
 AJn-med, 3 Doug., 16. 
 Norris V. Showerman, 2 Doug., 16. 
 
 Contracts, 664, 669, 673 ; Notice, 2428 ; Possession of Lands, 3594 ; 
 
 Specific Performance, 3995 ; Water Rights, 3335. 
 North American Mining Co., Mandlebaum v. 
 North Western Insurance Co., Brady v. 
 Norton, Pox v. 
 Norton, Fralick v. 
 Norton, Wyngert v. 
 Norvell v. McHenry, 1 Mich., 227. 
 
 Evidence, 1791, 1792, 1794, 1813 ; Practice in Circuit Courts, 3631, 
 
 3727. 
 
 Cited, 2 Mich., 374. 
 Nye, Arnold v. 
 Nye V. Van Husan, 6 Mich., 329. 
 
 Assignment, 237, 344, 246 to 350 ; Fraud, &c., 1884. 
 
 Cited, 7 Mich., 533. 
 Oakland County Bank, Attorney-General v. 
 Oakland County Bank, People v. 
 Oakley, Palmer v. 
 Oatman, Haines v. 
 O'Flynn v. Eagle, 7 Mich., 306. 
 
 Practice in Supreme Court, 3756, 3781, 2814, 2817. 
 O'Flynn v. Eagle, 8 Mich., 136. 
 
 Practice in Supreme Court, 2782, 3783. 
 O'Flynn v. Holmes, 7 Mich., 454 
 
 Practice in Supreme Court, 2783. 
 
 Approved, 8 Mich., 137. 
 O'Flynn v. Holmes, 8 Mich., 95. 
 
 Practice in Circuit Courts, 2702, 2705, 3707. 
 O'Flynn, Jenny v. 
 O'Hara, CuUen v. 
 O'Keefe, Chamberlain v. 
 Olcott, Callendar v. 
 Olcott V, Hanson, 12 Mich., 452. 
 
 Error, 1559 ; Practice in Circuit Courts, 2677. 
 Olin, Moore v. 
 Oliver v. Eaton, 7 Mich., 108. 
 
 Fraud, &c., 1883, 1884, 1886 ; Mortgage of Chattels, 2807. 
 
 Cited, 7 Mich., 158, 534; 8 Mich., 48. 
 Oliver, Symes v. 
 O'Malley, Dousman v. 
 Oregon Township, Mara'hon Township v. 
 O'Reiley, Crane v. 
 Orr V. Lacey, 3 Doug., 330. 
 
 Comity between States, 549 ; Conflict of Laws, 571 ; Contracts, 683; 
 
 Corporations, 719, 731 ; Evidence, 1660 ; Fraud, &c„ 1884 ; Prac- 
 tice in Circuit Courts, 2654 ; Usury, 3195. 
 Ortman v. Greenman, 4 Mich., 291. 
 
 Officer, 3435. 
 
TABLE OF CASES. 45 
 
 Osborne v. Bobbins, 10 Mich., 377. 
 
 Attachment, 299 to 303. 
 
 Cited, 10 Mich., 533. 
 Osman, Stevens v, 
 Otis, Faeey v. 
 Outhwite V. Porter, 13 Mich., 583, 
 
 Bills and Notes, 383 ; Equity, 1536. 
 Overall v. Pero, 7 Mich., 315. 
 
 Justices' Courts, 2150. 
 
 CUed, 9 Mich., 147, 
 very ssel Township, People v. 
 Owen, Day v. 
 Owen V. Fanners' Bank of Sandstone, 3 Doug., 134. 
 
 Note to Cahill v. Kalamazoo Mutual Insurance Co. [as to proof of 
 
 corporation.] 
 Owen, Kinnle v. 
 Owners of Ship Milwaukee v. Hale, 1 Doug., 306. 
 
 See Ship Milwaukee, Owners of, v. Hale. 
 Pack, Keeve v. 
 Paddock v. Pardee, 1 Mich., 431. 
 
 Contracts, 669, 672 ; Deed, 1006, 1008, 1010. 
 Paddock v. Matthews, 3 Mich., 18. 
 
 Attachment, 296. 
 
 Cii«e(2, 11 Mich., 355-6. 
 Paddock, Payne v. 
 Page V. Kendrick, 10 Mich., 300. 
 
 Fraud, &c„ 1865, 1866, 1893. 
 Page V, Mitchell, 13 Mich., 63. 
 
 Damages, 986, 987. 
 Page V. Webster, 8 Mich., 263. 
 
 Equity, 1256, 1298, 1309 ; Taxation, 3106. 
 
 CUed, 13 Mich., 300, 302. 
 Paige, Gilkey v. 
 Paine, Bliss v. 
 Paine, Wetherwax v. 
 Palmer et. al., appellants, 1 Doug., 423. 
 
 Estates of Deceased Persons, 1599 ; Vendor and Purchaser, 3313, 
 
 3214. 
 Palmer, Brewer v. 
 Palmer, Howard v. 
 Palmer, Jones v. 
 Palmer, Moran v. 
 Palmer v. Oakley, 3 Doug., 433. 
 
 Estates of Deceased Persons, 1609 ; Ouardian v. Ward, 1967 to 1974, 
 
 Cited, 2 Doug., 507. 
 Palmer v. Eich, 12 Mich., 414. 
 
 Drainage Laws, 1075, 1076 ; Equity, 1178, 1254, 1370, 1371, 1376, 1379, 
 Palms V. Campau, 11 Mich., 109. 
 
 Certiorari, 513. 
 Palmyra and JacksonburghEailroad Co., Southworth v. 
 Pardee, Paddack v. 
 Parker v. Copland, 4 Mich., 538. 
 
 Error, 1569, 1571. 
 
 Cited, 5 Mich., 231 ; 9 Mich., 446, 447. 
 Parker, Copland v. 
 Parker, Haviland v, 
 Parker, Jennison v. 
 Parker v. Luce, 14 Mich. 
 
 Attachment, 305. 
 
46 TABLE OF OASSa 
 
 Parker v. Parker, Wal. Ch., 457. 
 
 Equity, 1330, 1331. 
 Parks V. Barkham, 1 Mich,, 95. 
 
 Replevin, 2945. 
 Parks, Battelle v. 
 Parks V. Goodwin, 1 Doug., 56. 
 
 Statutes, 3055. 
 Parks V. Goodwin, 1 Mich., 35. 
 
 Bankruptcy, 330. 
 Parrish, Puller v. 
 Parsons, Bingham y. 
 Parsons v. Copland, 5 Mich., 143, 144, <■ 
 
 Practice m Supreme Courts, 2760. 
 Parsons, Davenport v. 
 Parsons, Rawson v. 
 Parsons v. RusseU, 11 Mich., 113. 
 
 Boat and Vessel Law, 449 ; Constitutional Law, 623 to 634 
 Parsons, Twombly v. 
 Partland, Crane v. 
 Paton, Bigelow v. 
 Paton V. Coit, 5 Mich., 505. 
 
 Bills and Notes, 384, 385. 
 
 Cited, 7 Mich,, 382. 
 Paton, Streeter v. 
 Payne v. Atterbury, Har. Ch., 414. 
 
 Equity, 1337, 1431, 1433 ; Vendor and Purchaser, 3213, 8315. 
 Payne v. Avery, 13 Mich,, 540. 
 
 Equity, 1511. 
 Payne, Avery v. 
 Payne, Hopson v. 
 Payne, Lee v. 
 Payne, Mason v. 
 Payne v. Paddock, Wal. Ch., 487. 
 
 Equity, 1234. 
 Pease, Bonebright v. 
 
 Peck, American Baptist Missionary Union v. 
 Peck V. Burgess, "Wal. Ch., 485. 
 
 Equity, 1400. 
 Peck V. Snyder, 13 Mich., 21. 
 
 Error, 1558 ; Practice in Circuit Courts, 2670, 3747, 
 Peckham v. Buffam, 11 Mich., 539. 
 
 Equity, 1243, 1474. 
 
 Cited, 13 Mich., 373. 
 Pegg V, Bidleman, 5 Mich., 26. 
 
 BiUs and Notes, 433, 434 
 Peltier v, Peltier, Har. Ch., 19. 
 
 Alimony, 97 ; Equity, 1366, 1388, 1434 
 Pendell, Bresler v. 
 Penniman, Majnard v. 
 Penniman v. Perce, 9 Mich., 509. 
 
 Husband and "Wife, 2017. 
 Pennoyer v. David, 8 Mich., 407. 
 
 Partnership, 2469, 2470. 
 Pennoyer v, Saginaw City, 6 Mich., 534. 
 
 Mnnicpal Corporations, 3395. 
 People v. Adwards, 5 Mich., 22. 
 
 Criminal Law, 801 to 803 ; Questions Reserved, 3871, 3873, 
 
 Cited, 5 Mich,, 68. 
 People, Annis v. 
 
TABLE OF CASES. 47 
 
 People, Ash v. 
 
 People V. Auditor-General, 1 Doug., 436. 
 
 Taxation, 3130. 
 People V. Auditor-General, 3 Mich., 437. 
 
 Mandamus, 3347 ; Taxation, 8119. 
 People V. Auditor-General, 5 Mioh., 193. 
 
 Justices of Supreme Court, 3191. 
 People r, Auditor-General, 7 Mich., 84. 
 
 Constitutional Law, 634 ; Vendor and Purchaser, 2309. 
 People T. Auditor-General, 9 Mich., 134. 
 
 Taxation, 3087, 3088. 
 People V, Auditor-General, 9 Mich., 141. 
 
 County Treasurer, 767 ; Taxation, 3131. 
 People V. Auditor-General, 13 Mich , 171. 
 
 Constitutional Law, 643, 644. 
 People V. Auditors ofWayne, 5 Mich., 233. 
 
 Judgments, 2095 ; Mandamus, 2244, 3356. 
 
 GiUd, 8 Mich., 379. 
 People V. Auditors ofWayne, 10 Mich., 307. 
 
 Board of Supervisors, 431. 
 People V. Auditors of Wayne, 13 Mich., 333. 
 
 Board of Supervisors, 433 ; Constitutional Law, 645 to 647. 
 People V. Bank of Pontiac, 12 Mich., 527. 
 
 Banks and Banking, 361, 362 ; Corporations, 739, 741 to 748. 
 People V. Bates, 11 Mich., 363. 
 
 Elections, 1094 to 1096. 
 People, Beach y. 
 People V. Beaubien, 3 Doug., 356. 
 
 Ways, 3344 to 3346, 3349 to 3351. 
 
 CiiM, 3 Mich., 16 ; 6 Mich., 183, 184 ; 11 Mich., 346. 
 People V. Blodgett, 13 Mich,, 137. 
 
 Constitutional Law, 605, 639. 
 
 OUeA, 13 Mich,, 501. 
 People V. Brigham, 3 Mich., 550. 
 
 Criminal Law, 871, 872. 
 
 Cited, 5 Mich., 83. 
 People, Bromley v. 
 People V. Brown, 3 Doug., 9. 
 
 Bond, 468. 
 People, Bumham v. 
 People V. Bums, 5 Mich., 114. 
 
 Counties, 758 ; Statutes, 3050, 
 
 Ciua, 6 Mich., 456. 
 People V. Canvassers of Kent County, 11 Mich., 111. 
 
 Elections. 1097. 
 People, Carleton v. 
 People V. Carmichael, 5 Mich., 10. 
 
 Criminal Law, 801 to 803. 
 People V. Carpenter, 1 Mich., 378. 
 
 Governor and Judges, 1936, 1937 ; Ways, 3339, 3243. 
 
 Cited, 6 Mich., 183 ; 9 Mich., 123. 
 People, Chilvers v. 
 People V. Clark, 10 Mich., 310. 
 
 Criminal Law, 834, 838, 840 to 842, 
 People V. Collier, 1 Mich., 137. 
 
 Criminal Law, 847, 848, 912. 
 
 Cited, 3 Mich., 554. 
 People V. Collins, 3 Mich,, 343. 
 
 Constitutional Law, 608, 609, 654. 
 
TABLE OF CASEa 
 
 People V. Cook, 10 Mich., 164. 
 
 Criminal Law, 915, 916 ; Practice in Circuit Courts, 2661. 
 People V. Connor, 13 Mich., 338. 
 
 Quo Warranto, 3893. 
 People V. Comwell, 13 Mich., 427, 
 
 See CrossweU v. People, 
 People, Crippen v. 
 People, Cross V. 
 People, Daniels v. 
 People V. Davidson, 3 Doug., 121, 
 
 Schools, 3963. 
 
 Cited, 13 Mich., 107, 
 People, Delany v. 
 People V. Dennis, 4 Mich., 609. 
 
 Evidence, 1795 ; Pleadings, 3571 ; Recognizance, 3903, 2908, 3909, 
 
 2911, 
 
 Cited, 6 Mich., 386, 387, 
 People V. Detroit and Pontiac Railroad Co., 1 Mich,, 458 
 
 Taxation, 3133. 
 People, Dillinv. 
 People V. Doe, 1 Mich., 451. 
 
 Criminal Law, 774 ; Practice in Circuit Courts, 2650 to 2652 ; Sta- 
 tutes, 3053, 3054, 3060. 
 People, Drennan v. 
 People, Durant v. 
 People, Elliott v. 
 People, Evans v. 
 People V, Farwell, 4 Mich., 556. 
 
 Certiorari, 530. 
 
 Cited, 13 Mich., 115, 
 People, Findley v. 
 People V. Foote, 1 Doug., 103. 
 
 Justices' Courts, 3148, 3149. 
 
 Cited, 1 Mich., 16; 7 Mich., 317, 
 People V. Fralick, 13 Mich., 334. 
 
 Judgments, &c., 3111, 2113. 
 People V. Gallagher, 4 Mich., 344. 
 
 Constitutional Law, 605, 606, 653, 655. 
 
 Cited, 5 Mich., 258 ; 13 Mich., 153, 163, 501. 
 People V. Oarlock, 5 Mich., 284 
 
 Circuit Judges, 544. 
 People V. Gay, 3 Doug., 367. 
 
 Possession of Lands, 2607. 
 People V, Geddes, 3 Mich., 70, 
 
 Constitutional Law, 651. 
 People V. Getchell, 6 Mich., 496. 
 
 Criminal Law, 843 to 845, 
 People V. Girardin, 1 Mich., 90. 
 
 Criminal Law, 864. 
 People V. Grand Blanc and Holly Plank Road Co., 10 Mich., 400: 
 
 Plank Road Companies, 2514, 2515. 
 People V. Hammond, 1 Doug., 376. 
 
 Taxation, 3120. 
 People, Harlan v. 
 People v. Hart, 1 Mich., 467. 
 
 Criminal Law, 889. 
 People V, Hartwell, 13 Mich., 508, 
 
 Detroit City, 1046; Elections, 1099; Quo "Warranto, 2882, 3891. 
 
TABLE OF CASES. 49 
 
 People V. Hawley, 3 Mich,, 330. 
 
 Constitutional Law, 603, 653 ; Prohibitory Liquor Law, 2854. 
 People, Hibbard v, 
 People, Hicks t. 
 People T, Higgins, 3 Mich., 233. 
 
 Elections, 1090, 1091, 1098. 
 People, Hoch v. 
 People V. Hoffman, 3 Mich., 348, 
 
 Prohibitory Liquor Law, 3855, 
 People V. Holmes, 3 Mich., 544. 
 
 See People v. State Treasurer. 
 People, Holt v. 
 People V. Horton, 4 Mich., 67, 
 
 Criminal Law, 777, 792; Evidence, 1665, 1677 ; Husband and Wife, 
 
 2016, 3033. 
 
 Cited, 8 Mich., 368 ; 9 Mich., 381, et aeq. ; 10 Mich., 478. 
 People, Howard v. 
 People V. Inspectors and Agent of State Prison, 4 Mich., 187. 
 
 Mandamus, 2346, 3349 ; State Prison, 3047. 
 
 Gited, 13 Mich., 551. 
 People, Jackson v. 
 People V. Jackson, 7 Mich., 433. 
 
 Ways, 3357 to 3260. 
 
 Cited, 12 Mich., 406. 
 People V. Jackson, 8 Mich., 78. 
 
 Questions Reserved, 2878. 
 People V. Jackson, 8 Mich., 110. 
 
 Criminal Law, 937. 
 People V. Jackson and Michigan Plank Eoad Co., 9 Mich., 385. 
 
 Constitvitional Law, 603, 604 ; Plank Road Companies, 2530 to 3534. 
 
 CUed, 11 Mich., 169. 
 People V. Jenness, 5 Mich., 305. 
 
 Constitutional Law, 615 ; Criminal Law. 854 to 856, 919, 938 ; Error, 
 
 1545 ; Evidence, 1749, 1750. 
 People, Jennings v. 
 People V. Jerome, 1 Mich., 143. 
 
 Libel, 3319. 
 People V. Jones, 6 Mich., 176. 
 
 Detroit City, 1037, 1028 ; Ways, 3343 to 3248. 
 
 Cited, 9 Mich., 136 ; 13 Mich., 405. 
 People V. Judges of Branch Circuit Court, 1 Doug., 319. 
 
 Certiorari, 511 ; Mandamus, 2340, 3341. 
 People V. Judges of Calhotin Circuit Court, 1 Doug., 417. 
 
 Attachments, 370, 276 to 278 ; Mandamus, 2242 ; Practice in Circuit 
 
 Courts, 3712, 2713, 3738. 
 People V. Judges of Cass Circuit Court, 3 Doug., 116. 
 
 Certiorari, 531. 
 People V. Judges of Jackson Circuit Court, 1 Doug., 303. 
 
 Mand amus, 2353 ; Practice in Circuit Courts, 3713a ; Replevin, 2955. 
 People V. Judges of Macomb Circuit Court, 1 Mich., 134. 
 
 Appeal from Justices' Courts, 159. 
 People V. Judges of Washtenaw Circuit Court, 1 Doug., 434. 
 
 Action, 77 ; Mandamus, 3343 ; Practice in Cireuit Cfourts, 3633, 3633, 
 
 3711. 
 
 FoUowed, 13 Mich., 206, 
 People V. Judge of Wayne Circuit Court, 13 Mich., 306. 
 
 Practice in Circuit Courts, 3633. 
 People V. Judge of Wayne County Court, 1 Mich,, 359. 
 
 Certiorari, 537 ; Mandamus, 2346. 
 
50 TABLE OF CASES. 
 
 People V. Kent, 1 Doug., 43. 
 
 Criminal Law, 813, 813. 
 People V. Kimball, 4 Mich., 95". 
 
 Constitutional Law, 648. 
 People V. Knight, 13 Mich,, 380. 
 
 Quo Warranto, 3881. 
 People V. Knight, 13 Mich., 434. 
 
 Elections, 1100. 
 People, Koster v. 
 People V. Lambert, 5 Mich., 349. 
 
 Constitutional Law, 614 ; Criminal Law, 857 to 859 ; Evidence, 1790, 
 
 1799, 1800. 
 
 Cited, 11 Mich., 184. 
 People V. Littlejohn, 11 Mich., 60. 
 
 Practice in Circuit Courts, 2679, 3680, 2735, 3736. 
 People V. Lord, 9 Mich., 337. 
 
 Judge of Probate, 2079 to 3083. 
 People T. Mahaney, 13 Mich., 481. 
 
 Constitutional Law, 606, 631 to 683, 640 to 642; Evidence, 1818; 
 
 Statutes, 3073. 
 People, Maher v. 
 People V. May, 3 Mich., 598. 
 
 Prosecuting Attorney, 3861. 
 People V, Maywonn, 5 Mich., 146. 
 
 Elections, 1093 ; Quo "Warranto, 3884 ; Sheriff; 3975. 
 People V. McDonald, 9 Mich., 150. 
 
 Criminal Law, 798 to 800. 
 
 Oited, 13 Mich., 433. 
 People V. McKinney, 9 Mich., 444. 
 
 Criminal Law, 989. 
 People V. McKinney, 10 Mich., 54. 
 
 Criminal Law, 819 to 830, 914; Error, 1587 ; Evidence, 1796. 
 
 Cited, 11 Mich., 341 ; 13 Mich., 448. 
 People T. Michigan Southern Bailroad Co., 3 Mich., 496. 
 
 Eminent Domain, 1103, 1104 ; Mich. S. E. R. Co., 3370. 
 
 Followed, 3 Mich., 508. 
 People V. Michigan Southern and Northern Indiana Railroad Co., 4 
 
 Mich., 398. 
 
 Mich. S. R. R. Co., 3371 to 3376. 
 
 8ee 9 Mich., 450. 
 People V. Miles, 2 Mich., 848. 
 
 Quo Warranto, 3885. 
 People V. Millspaugh, 11 Mich., 378. 
 
 Criminal Law, 851, 853. 
 People V. Moore, 3 Doug., 1. 
 
 Arrest, 307, 308. 
 People, Moore v. 
 People, Morrissey v. 
 People V. Oakland County Bank, 1 Doug., 283. 
 
 Banks and Banking, 341, 343; Corporations, 719, 730, 732, 737, 740; 
 
 Quo Warranto, 3886. 
 
 CUed, 13 Mich., 91. 
 People V. Plumsted, 3 Mich., 465. 
 
 Homestead, 1986, 1987. 
 
 CUed, 7 Mich., 505. 
 People V. Police Justice of Detroit, 7 Mich., 456. 
 
 Police Court of Detroit, 2593. 
 People, Pond v. 
 
TABLE OF Q&.S'ES. 51 
 
 People V. Potter, 5 Mich., 1. 
 Criminal Law, 791, 793. 
 Cited, 6 Mich., 393 ; 8 Mich., 337. 
 People, Pullen v. 
 Penple v. Quarter-Master General, 12 Mich., 191. 
 
 Bounty, 475. 
 People V. Quarter-Master General, 13 Mich., 347. 
 
 Bounty, 477, 478. 
 People V. Quarter-Master General, 14 Mich. 
 
 Bounty, 476. 
 People V. Regents of the University, 4 Mich., 98. 
 Mandamus, 2349 ; University of Michigan, 3189. 
 Cited, 13 Mich., 550. 
 People V. Reynolds, 2 Mich., 433. 
 
 Criminal Law, 815, 816 ; Practice in Circuit Courts, 2065. 
 People V. Richards, 1 Mich.,'316. 
 Criminal Law, 833 to 836. 
 Cited, 4 Mich., 432. 
 People V. River Raisin and Lake Erie R. R. Co., 13 Mich., 380. 
 
 Banks and Banking, 842; Corporations, 719, 733; Evidence, 1817; 
 Pleadings, 3545 ; Quo "Warranto, 2887, 2i88, 2892. 
 Cited, 13 Mich., 492. 
 People V. Rix, 6 Mich., 144, 
 
 Officer, 2487, 2438. 
 People V. Rutan, 3 Mich., 43. 
 
 Recognizance, 3903, 2904, 3905. 
 Citid, 6 Mich., 385. 
 People V. Sackett, 14 Mich. 
 
 Quo Warranto, 2894, 2895. 
 People V. Scott, 6 Mich., 387. 
 
 Criminal Law, 793, 795 ; Error, 1548 ; Practice in Circuit Courts, 
 3664. 
 
 Cited, 8 Mich., 337 ; 13 Mich., 95. 
 People, Shannon v. 
 People V. Simonson, 9 Mich., 493. 
 
 Appeal from Chancery, ill. 
 People V. Simonson, 10 Mich., 885. 
 
 Equity, 1146, 1147. 
 People, Slaughter v. 
 People V. Smith, 9 Mich., 193. 
 
 Constitutional Law, 613 ; Detroit City, 1043. 
 People, Smith v. 
 People V. State Auditors, 9 Mich., 327. 
 
 Bounty, .474. 
 People V. State Treasurer, 2 Mich., 306. 
 
 See People v. Whittemore. 
 People V. State Treasurer, 8 Mich., 544. 
 
 Banks and Banking, 865, 366, 367. 
 People V. State Treasurer, 4 Mich., 27. 
 
 Banks and Banking, 863, 864. 
 People V. State Treasurer, 7 Mich., 366. 
 State Lands, 3044 to 8046. 
 Cited, 11 Mich., 202. 
 People V. Stewart, 4 Mich., 655. 
 Criminal Law, 875 to 877, 880. 
 Cited, 5 Mich., 248. 
 People V. Stewart, 5 Mich., 243. 
 Criminal Law, 873, 874. 
 
 31 
 
52 TABLE OF CASES. 
 
 People V. Supervisors of Macomb, 3 Mich., 475. 
 
 Board of Supervisors, 432 ; Mandamus, 2248 ; Townships, 3163. 
 
 Cited, 8 Mich., 379, 382 ; 10 Mich., 809 ; 13 Mich., 237. 
 People V. Taylor, 2 Mich., 350. 
 
 Contracts, 687 ; Criminal Law, 831. 
 
 Cited, 8 Mich., 181. 
 People, Thayer v. 
 People v. Thomas, 9 Mich., 314. 
 
 Criminal Law, 931. 
 
 Cited, 11 Mich., 331 ; 13 Mich., 519. 
 People, Tillman v. 
 People v. Tisdale, 1 Doug., 59. 
 
 Elections, 1090 to 1093 ; Quo Warranto, 3880. 
 
 Cited, 3 Mich., 336. 
 People, Tivey v. 
 People V. Township Board of Fillmore, 11 Mich., 197. 
 
 Practice in Supreme Court, 2802. 
 People V. Township Board of LaGrange, 2 Mich., 187. 
 
 Interest, 2072 ; Mandamus, 3253 to 3255 ; Townships, 3159 ; "Ways, 
 
 8365, 8266; 3370. 
 
 Cited, 8 Mich., 379. 
 People V. Township Board of Lowell, 9 Mich., 144. 
 
 Ways, 3371, 3373. 
 People V. Township Board of Overyssel, 11 Mich., 333. 
 
 Principal and Agent, 3827, 2838. 
 People V. Township Board of Scio, 3 Mich., 131. 
 
 Ways, 3364. 
 People V. Township Board of Springwells, 12 Mich,, 434. 
 
 Costs, 752; Ways, 3267, 3268. 
 People V. Township Board of Springwells, 13 Mich., 346. 
 
 Certiorari, 531. 
 People V. Township Board of Springwells, 13 Mich., 463. 
 
 Ways, 3269. 
 People V. Township Board of Zilwaukie, 10 Mich., 274. 
 
 Ways, 3275. 
 People V. Treasurer of Detroit, 8 Mich., 14. 
 
 Taxation, 8140. 
 People V. Treasurer of Wayne County, 8 Mich., 392. 
 
 Library Moneys, 2228 ; Practice in Supreme Court, 2810 
 People V. Tryon, 4 Mich., 665. 
 
 Ciiminal Law, 846. 
 People, Tulley v. 
 People v. Tyler, 7 Mich., 161. 
 
 Admiralty Courts, &c.. 79 to 86 ; Criminal Law, 896. 
 
 Cited, 8 Mich., 381 to 341. 
 People, Tyler v. 
 People V. Van Cleve, 1 Mich., 362. 
 
 Elections, 1088 to 1090 ; Quo Warranto, 2883. 
 
 Cited, 3 Mich., 336. 
 People V. Walker, 9 Mich., 328. 
 
 Mandamus. 2250, 2251. 
 People, Washburn v. 
 People V. Wattles, 13 Mich, 446. 
 
 See Wattles v. People. 
 People V. Wayne Circuit Court, 11 Mich,, 893. 
 
 Probate Court, 2851 ; Prohibition, 3853, 
 People V. Webster, 3 Doug., 93. 
 
 Criminal Law, 888. 
 People V. WeUs, 8 Mich., lOi 
 
 Criminal Law, 887 ; Pi-actice in Circuit Courts, 3668. 
 
TABLE OP CASES. 53 
 
 People V. Whittemore, 3 Mich., 306- 
 
 Constitutional Law. 660. 
 People V, Whittemore, 4 Mich., 27. 
 
 See People v. State Treasurer. 
 People V. WUson, 13 Mich., 35. 
 
 Practice in Circuit Courts, 3730. 
 Peoria Marine and Fire Insurance Co. v-. HaU, 13 Mich., 303. 
 
 Insurance, 3058 to 3066. 
 Perce, Penniman v. 
 Perldns v. Dacon, 13 Mich., 81. 
 
 Vendor and Purchaser, 3306. 
 Perkins v. Perkins, 10 Mich., 435. 
 
 Appeal from Chancery, 130. • 
 Perkins v. Perkins, 13 Mich^ 456. 
 
 Divorce, 1057 ; Equity, 1342. 
 Perkins, Snow v, 
 Perkins v. Spalding, 3 Mrch^ 157, 
 
 Judgments, 3086, 3088 to 3091. 
 Perkins v. Superintendents of Poor of Lapeer, 1 Mich., 504. 
 
 Certiorari, 509. 
 Pero, Overall v. 
 Perry v. Hepburne, 4 3CchT 165. 
 
 Limitation of Actions, 3335-; Revised Statutes of 1846, 3963. 
 
 Gited, 5 Mich., 5a 
 Peters, Bancroft v, 
 Pettibone v, McGraw, 6 Mick, 441. 
 
 Equity, 1307, 1308 ; Plank Road Companies, 3535 to 3537, 
 Pettibone, McQ-raw v, 
 Pettit, Jewett v. 
 Pew V. Yoare, 13 Mich., 16. 
 
 Attachment, 379 ; Pleadings, 3568, 3569. 
 Phelps, Jones v. 
 Phenix v. Clark, 3 Mich., 337, 
 
 Replevin, 3935,3946, 3951, 
 Phillips, Curtis v. 
 Phillips, De Armand v. 
 Phillips, Woodruff v. 
 Phoenix Insatance Co. v, AHea, 11 Mich.,501, 
 
 Bills and Notes, 393, 393, 401, 403,403, 437, 
 
 Cited, 13 Mich,, 193. 
 Phcenix Insurance Co. v. Gray, 13 Mich., 191, 
 
 Bills and Notes, 404. 
 Picard v. McCormick, 11 Mich., 68. 
 
 Evidence, 1764 ; Fraudulent Representations, 189S to 1898 ; Plead- 
 ings, 3553, 3554 ; Vendor and Purchaser, 3303. 
 Pickard v, Polhemus, 3 Mich,, 185. 
 
 Practice in CiTcuit Courts, 3693, 
 Pidge, Wallace v, 
 Pierson, Baker v. 
 Pierson v. Manning, 3 Mich., 445, 
 
 Assignment, 213, 319, 222, 324, 238, 340, 244^ Fraud, &C., 1869. 
 Cited, 7 Mich., 530, 
 Pine, Mover v. 
 Place V. Grant, 9 Mich., 43. 
 
 Mortgage of Chattels, 3303. 
 Place, Hammond v. 
 Piatt V. Drake, 1 Doug., 296. 
 Bills and Notes, 405, 406. 
 
 Explained, 3 Doug., 435 ; CUed, 2 Mich., 240, «41 ; 4 Mich., 895 ; 
 OvemOed, 9 Mich. ,311. See 13 Mich., 378, 
 
54 TABLE OFTASES. 
 
 ,».-, J , ■^ , — _ 
 
 Piatt, Hunton v. 
 
 Piatt V. Stewart, 10 Mich., 260. 
 
 Equity, 1533, 1535 ; Evidence, 1794 ; Jurisdiction, ^130. 
 Plumsted, People v. 
 Polhemus, Pickard v. 
 Police Justice of Detroit, People v. 
 Pond V. People, 8 Mich., 150, 
 
 Crhninal Law, 775 to 780 ; Dwelling house, 1079 ; Practice in Sl 
 
 preme Court, 2811. 
 
 Cited, 10 Mich., 217. 
 Pontiac and Groveland Plank Road Co. James v. 
 Porter, Butler y. 
 Porter t. Henderson, 11 Mich., 20. 
 
 Slander, 2990 to 2992. 
 Porter t, Hodenpuyl, 9 Mich., 11. 
 
 Principal and Surety, 2838. 
 Porter v, Kimball, 1 Mich., 239. 
 
 Pleadings, .2584, 2588. 
 Porter, Outhwite v. 
 Porter, Warner y. 
 
 Port Huron andMilwaukee Railway Co., White v- 
 Port Huron Log Driving and Booming Co., Ames v. 
 Port Huron Log Driving and Booming Co., Beard v. 
 Post, Cohnan v. 
 Potter, Carrqjl v. 
 Potter, People v. 
 Poupard, Beaubien v. 
 Poupard, Bergh v. 
 Power, CargiUv. 
 Pratt V. Bank of Windsor, Har, Ch„ 254. 
 
 Equity, 1889, 
 Pratt v. Campbell, Har. Ch., 236, 
 
 Principal Agent, 2821, 
 Pratt v.TeflEt, 14 Mich. 
 
 Dower, 1065. 
 Prentis v. Bice, 2 Doug., 296, 
 
 Appeal from Chancery, 113. 
 
 Cited, 2 Doug., 301. 
 Prentiss v. Holbrook, 2 Mich., 372. 
 
 Evidence, 1791 ; Judgments, 2122 to 2124. 
 Prentiss V. Spalding, 2 Doug., 84. 
 
 Covenant, 772 ; Pleading, 2535 ; Practice in Circuit Courts, 2701, 
 
 3704,2706, 2718. 
 Prentiss, Thurston v. 
 Prentiss v. Webster, 2 Doug., 5. 
 
 Action, 16 ; Damages, 984 ; Justice of the Peace, 2189. 
 Preston, Hemingway v. 
 Preston v. Preston, 1 Doug., 292. 
 
 Attojpeys, «&c., 308. 
 Price v. Hopkin, 13 Mich., 318. 
 
 Constitutional Law, 633, 636 ; Statutes, 3065, 3066, 
 Provincial Insurance Co., Johnson v, 
 PuUen v. People, 1 Dong., 48. 
 
 Evidence, 1664. 
 
 Cited, 11 Mich., 330, 342. 
 Putnam, Kellogg v. 
 Quackenboss v. Campbell, Wal. Ch., 525. 
 
 Estates of Deceased Persons, 159t 
 Quartermaster-General, People v. 
 
TABLE OP CASKS. 55 
 
 Quinlon v. Rogers, 13 Mich., 168. 
 
 Constitutional Law, 627. 
 
 CiM 13 Mich., 840. 
 Quirk V. Thomas, 6 Mich., 76. 
 
 Equity, 1157 ; Recording Laws, 2932. 
 RamsdeUv. Eaton, 13 Mich., 117. 
 
 Equity, 1247, 1276, 1507. 
 Eamsdell v. MiUard, Har. Ch., 371 
 Ramsdell, Millard v, 
 Randall, Dougherty v. 
 Ransford, Niles v. 
 Ransom, Davis v. 
 Ra8co,Farr t. 
 Rash V. Whitney, 4 Mich., 495. 
 
 Error, 1562 ; Evidence, 1673, 3333 ; Justices' Courts, 3183 to 3185. 
 Rawson v. Parsons, 6 Mich., 401, 
 
 Ejectment, 1083 to 1087 ; Statutes, 3057. 
 Ready v. Kearsley, 14 Mich. 
 
 Powers, 2621 to 2624 ; Uses, 3191. 
 Redson, Hall v. 
 Reed, Hurlburt v. 
 Reed v. "Wessel, 7 Mich., 139. 
 
 Equity, 1313, 1314 : Fraud, &c., 1867. 
 Reeve v. Pack, 6 Mich., 340. 
 
 Bills and x^otes, 399. 
 Reeves, Loree v. 
 Reeves, MUierd v. 
 Reeves v. Scully, "Wal. Ch., 348. 
 
 Mortgage of Lands, 2358. 
 
 Cited, 5 Mich., 519. 
 Reeves v. ScuUy, Wal. Ch., 840. 
 
 Equity, 1513. 
 Regents of the University V. Board of Education of Detroit, 4 Mich., 
 
 318. 
 
 University of Michigan, 3185, 3186, 
 
 Oiled, 13 Mich., 162, 164. 
 Regents of the University v. Detroit Young Men's Society, 13 Mich., 
 
 138. 
 
 Contracts, 679 ; Corporations, 733 ; Pleadings, 3547 to 3551 ; Uni- 
 versity of Michigan, 3187, 3188. 
 Regents of the University, People v. 
 Reynolds v. Green, 10 Mich., 355. 
 
 Equity, 1306, 1807. 
 Reynolds, People v. 
 Rhodes, Niles v. 
 Rice, Carroll v. 
 Rice, Prentiss v. 
 Rice, Robinson v. 
 Rice V. Ruddiman, 10 Mich., 123. 
 
 Counties, 753 ; Deed, 1016 ; Evidence, 1705 ; Statutes, 3084 
 
 Cited, 10 Mich., 353, 358 ; 13 Mich., 327. 
 Rice, Wheelock v. 
 Rich, Palmer v. 
 Richards, People v. 
 Richardson v. Yawkey, 9 Mich., 139. 
 
 Practice in Circuit Courts, 3734. 
 Richardson, Yawkey v. 
 Richmond v. Robinson, 12 Mich., 193. 
 
 Dower, 1068 ; Specific Performance, 3004, 3016, 3025. 
 
m TABLE OF CASES. 
 
 Eider, Davis v. 
 
 Riggs, Sage v. 
 
 Biker, Western Massachusetts Insurance v. 
 
 Ripley, Daniels t. 
 
 Rivard, St. Armor v. 
 
 River Raisin and Graind River Railroad Co., "Wells v. 
 
 River Raisin and Lake Erie Railroad Co., People v. 
 
 Rlx, People v. 
 
 Robbins, Osborn« v. 
 
 Roberts v. Miles, 13 Mich., 297. 
 
 Equity, 1132, 1133, 1347 to 1350. 
 Robertson, Crittenden v. 
 Robertson v. Little, 10 Mich., 371. 
 
 Practice in Circuit Courts, 3738, 2739. 
 Robinson, Baxter v. 
 Robinson v. Godfrey, 3 Mich., 408. 
 
 Contracts, 694 
 
 Cited, a Mich., 617, 618. 
 Robinson v. Rice, 3 Mich., 335. 
 
 Conflict of Laws, 575. 
 
 Cited, 5 Mich., sn. 
 Robinson, Ridimond v. 
 Robinson v. Steamboat Red Jacket, 1 Mich., 171. 
 
 Statutes, 3073. 
 
 Cited, 1 Mich., 475. 
 Robinson Estate, Matter of; 6 Mich., 137. 
 
 Certiorari, 516 ; Practice in SupremeJCourt, 3759, 2800 ; Probate 
 
 Courts, 2849, 2850. 
 Rockwell, Howard v. 
 Rockwell V. Hubbell's Administrators, 2 Doug., 197. 
 
 Constitutional Law, 597 ; Judgments, 8113. 
 Roelofson v. Hatch, 3 Mich., 277. 
 
 Attachment, 260, 365, 374. 
 Roeser, La Roe v. 
 Rogers, Amberg v. 
 Rogers, Dibble v. 
 Rogers, Quinlon v. 
 Rohrback, Tucker v. 
 Romeyn v. Hale, 1 Mich., 93. 
 
 Appeal from Chancery, 115. 
 Rood V. Chapin, Wal. Ch., 79. 
 
 Equity, 1149 ; Notice, 3438 ; Possession of Lands, 2594. 
 Rood V. Jones, 1 Dong., 188. 
 
 Consideration, 579 to 581. 
 Rood V. School District No, 7, 1 Doug., 503. 
 
 Justices' Courts, 3154 to 3156. 
 
 Cited, 3 Mich., 309; 7 MicK, 317. 
 Rood V. Winslow, Wal. Ch., 340. 
 
 Mortgage of Lands, 3333. 
 
 Affirmed, 2 Doug., 68. 
 Rood V. Winslow, 2 Doug., 68. 
 
 Duress, 1077 ; Mortgage of Lands, 3333 ; Trusts, 3173. 
 
 Cited, 5 Mich., 123. 
 Root V. Barnes, 1 Mich., 37. 
 
 Certiorari, 510, 
 Root V. Mayor, &c., of Ann Arbor, 3 Mich., 433. 
 
 Constitutional Law, 656 ; Municipal Corporations, 3403. 
 Rose V. Lewis, 10 Mich,, 483. 
 
 Damages, 983 ; Error, 1551 ;. Evidence, 1836 ; Practice ia Circuit 
 
 Courts, 2745. 
 
TABLE OF CASES. 57 
 
 Rosenbury v. Angell, 6 Mich., 508. 
 
 Pleadings, 2576, 3584, 2585 ; Principal and Agent, 2833. 
 
 Cited, 8 Mich., 351, 356 ; 12 Mich., 70. 
 Rosenbury, Angell v. 
 Rossiter v. Chester, 1 Doug., 154. 
 
 Maritime Law, 2257 to 2261. 
 Rowe V. Wright, 12 Mich., 289. 
 
 Contracts, 676 ; Evidence, 1765. 
 Rowland v. Doty, Har. Ch., 3. 
 
 Equity, 1111, 1167 ; Taxation, 3110, 3113. 
 
 Cited, 2 Doug., 205 ; 1 Mich., 316 ; 3 Mich., 493. 
 Royce v. Bradbum, 2 Doug., 377. 
 
 Possession of Lands, 2599, 2601. 
 
 Cited, 2 Doug., 377 ; 4 Mich., 344 ; 10 Mich., 234. 
 Ruddiman, Rice v. 
 Rumney, May v. 
 Russell, Parsons v. 
 Russell v. Waite, Wal. Ch., 31. 
 
 Equity, 1503, 1503 ; Mortgage of Lands, 3344. 2357. 
 
 Cited, Wal. Ch., 74. 
 Rutan, People v. 
 Ryan v. Wilson, 9 Mich., 262. 
 
 Deed, 1013, 1014. 
 Sackett v. Hill, 2 Mich., 182. 
 
 Equity, 1414. 
 Sackett, People v. 
 Saffordv. Basto, 4 Mich., 406. 
 
 Trespass to Lands, 3170, 3171. 
 Sage V. Riggs, 12 Mich., 313. 
 
 Mortgage of Lands, 2335. 
 Sage V. Walker, 12 Mich., 425. 
 
 Bills and Notes, 428. 
 Saginaw City, Pennoyer v. 
 Saginaw City Bank, Clark v. 
 Saginaw City Bank. Smith v. 
 Saginaw County, Larkin v. 
 Saginaw Township y. School District No. 1, 9 Mich., 541. 
 
 Practice in Circuit Courts, 2660 ; Schools, 2964, 2965. 
 Sallee v. Ireland, 9 Mich,, 154. 
 
 Jurisdiction, 2135 ; Practice in Circuit Courts, 2737, 2740, 2748 ; 
 
 Time, 3151. 
 
 Cited; 12 Mich., 115. 
 Sanborn, Edwards v. 
 Sanborne, Moore v. 
 Sanbourn, Lyell v. 
 Sanger v. Truesdail, 7 Mich., 9. 
 
 Practice in Supreme Court, 3805. 
 Sanger v. Truesdail, 8 Mich., 543. 
 
 Questions Reserved, 2879. 
 Savage, Wood v. 
 Savier v. Chipman, 1 Mich., 116. 
 
 Appeal from Justices' Courts, 172 ; Evidence, 1810 ; Justices' Courts, 
 
 2161. 
 Sawyer v. Sawyer, Wal. Ch., 48, 
 
 Divorce, 1051 ; Equity, 1463, 1464, 1506 ; Evidence, 1692. 
 Sawyer v. Studley, Wal. Ch., 153. 
 
 Equity, 1513. 
 Saxe, ±Juekley v. 
 Scales V. Griffln,3Doug., 54. 
 Mechanics' Lien, 2364, 2265. 
 
58 TABLE OF CASES. 
 
 Schilling, Marvin v. 
 
 Schoolcraft and Three Rivers Railroad Co., Shurtz v, 
 
 School District No. 1, Hinman v. 
 
 School District No 7, Rood v. 
 
 School District No. 1, Saginaw Township v. 
 
 Schwarz v. Sears, Har. Ch., 440. 
 
 Equity, 1411, 1422. 
 Schwarz v. Sears, Wal. Ch., 19, 
 
 Equity, 1453 to 1455, 1459 ; Evidence, 1723. 
 
 Cited, Wal. Ch., 46 ; 12 Mich., 323. 
 Schwarz v. Sears, Wal. Ch., 170. 
 
 Equity, 1816 ; Mortgage of Lands, 2338, 2883, 
 
 Cited, 1 Mich., 344. 
 Schwarz, Sears v. 
 Schwarz v. Wendell, Har. Ch., 395. 
 
 Equity, 1325, 1326. 
 Schwarz v. Wendell, Wal. Ch., 267. 
 
 Contracts, 674 ; Equity, 1215, i::!43to 1345, 1472 ; Trusts, 3181, 8182. 
 
 Cited, 2 Mich., 147. 
 Scott V. Detroit Young Men's Society's Lessee, 1 Doug., 119. 
 
 Courts of the United States, 770 ; Evidence, 1774, 1775 ; Governor 
 
 and Judges, 1939 to 1935 ; Ordinance of 1787, 2448, 3449 ; Powers, 
 
 2619,3630; Principal and Agent, 3833; State of Michigan, 8037; 
 
 Taxation, 3113. 
 
 Cited, 3 Doug., 205 ; 1 Mich., 316 ; 2 Mich., 493 ; 4 Mich., 231, 329 ; 
 
 9 Mich., 843. 
 Scott, Harrington v. 
 Scott, Johnstone v. 
 Scott, People v. 
 Scott V. Scott, 5 Mich., 106. 
 
 Practice in Supreme Court, 3768. 
 Scott V. Scott, 5 Mich., 349. 
 
 Practice in Supreme Court, 2803. 
 Scott V. Smart's Executors, 1 Mich., 395. 
 
 Constitutional Law, 605 ; Jurisdiction, 3138 ; Statutes, 3033. 
 
 Cited, 5 Mich., 258; 13 Mich., 153, 501. 
 Scott, Wells V. 
 Scrihnerv. Doseman, 5 Mich., 283. 
 
 Practice in Supreme Court, 3770. 
 Scribuer v. Gay, 5 Mich., 511. 
 
 Practice in Supreme Court, 3776 to 2780. 
 
 Cited, 8 Mich., 138. 
 Scully, Beeves v, 
 Sears v. Cottrell, 5 Mich., 351. 
 
 Constitutional Law, 605, 507, 630, 631. 
 
 Cited, 5 Mich., 419 ; 8 Mich., 397, 333 ; 11 Mich., 133, 133; 13 Mich., 
 
 150, 163, 501. 
 S »ar v. Schwarz, 1 Doug., 504. 
 
 Equity, 1376. 
 Sears, Schwarz v. 
 Sears v. Smith, 3 Mich., 243. 
 
 Payment, 3493 ; Vendor and Purchaser, 3313, 3314. 
 Second National Bank v. Williams, 13 Mich., 282, 
 
 Assignment, 311 ; Donatio Causa Mortis, 1061. 
 Secor, Hotchin v. 
 Seeley, Groesbeck v. 
 Selby, Matter of, 6 Mich., 198. 
 
 Public Lands, 3864 to 3870. 
 Sellers v. Botsford, 9 Mich., 490. 
 
 Appeal from Chanceiy, 131. 
 
TABLE OP CASES. 5» 
 
 Sellers v. Botsford, 11 Mich., 59. 
 
 Usury, 3194. 
 Seymour v. Jerome, Wal. Ch,, 356. 
 
 Equity, 1493, 1493. 
 Seymour, Jerome v. 
 Seymour, Morrill v. 
 Shadbolt v. Bronson, 1 Mich., 85. 
 
 Jurisdiction, 3137. 
 Shafer v. Niver, 9 Mich., 353. 
 
 Land Contract, 8303 ; Mortgage of Lands, 3395. 
 Shannon, v. People, 5 Mich., 36. 
 
 Criminal Law, 936. 
 Shannon v. People, 5 Mich., 71 
 
 Criminal Law, 804 to 809, 914, 930. 
 
 Cited, 10 Midi., 89 ; 11 Mich., 336. 
 Shaw V. Davis, 7 Mich., 318. 
 
 Contracts, 703 ; Evidence, 1755 ; Practice in Circuit Courts, 3663. 
 Shaw, Hewlett v. 
 Shaw V. Moser, 3 Mich., 71. 
 
 Appeal from Justices' Courts, 108, 169 ; Justices' Courts, 2163. 
 Shaw V. Shaw, 9 Mich., 164. 
 
 Appeal from Chancery, 109. 
 Sheeley, Dyson v. 
 Sheldon, Hawley v 
 Sheldon, Jackson v. 
 Sherlock v. Thayer, 4 Mich., 355. 
 
 Landlord and "Tenant, 2318. 
 Sherlock, Thayer v. 
 Sherman, Buck v. 
 Sherman, Parr v. 
 Sherman, Hogan v. 
 Ship Milwaukee, Owners of, v. Ha'le, 1 Doug., 306. 
 
 Boat and Vessel Law, 440, 441 ; Pleadings, 2581 ; Practice in Cir- 
 cuit Courts, 3638, 3644 to 2647 ; "Waiver, 3324. 
 Showerman, Norris v. 
 Shultz, Buchegger v. 
 Shurts, Engle v. 
 
 Shurtz, Michigan Southern and Northern Indiana R. R. Co. v. 
 Shurtz V. Schoolcraft and Three Rivers R. R. Co., 9 Mich., 269. 
 
 Action, 67, 63 ; Railroad Corporations, 2899, 2900. 
 Shutts, Gates v. 
 Sibley v. Johnson, 1 Mich., 380. • 
 
 Acknowledgement of Deeds, 6. 
 
 Cited, 4 Mich., 567. 
 Sibley v. Smith, 2 Mich., 486, 
 
 Statutes, 3048, 3049, 3058, 3059 ; Taxation, 3076 to 3080, 3104, 
 
 3113, 3114, 3118. 
 
 Cited, 4 Mich., 151, 158, 448, 598 ; 5 Mich., 154. 
 Sill V. Ketcham, flar. Ch., 433. 
 
 Equity, 1263. 
 
 Cited, 6 Mich., 73 ; 8 Mich., 330 ; 12 Mich., 350. 
 Simmons v. McDowell, "Wal. Ch., 175. 
 
 See "Wing v. McDowell. 
 Simmons v. Simmons, 8 Mich., 318. 
 
 Breach of Promise to Marry, 483 to 484. 
 Simonson, People v. 
 Sinclair V. Comstock, Har. Ch., 404. 
 
 Town Plats, 3154 to 3156. 
 Sisters of Charity v. City of Detroit, 9 Mich., 94. 
 
 Taxation, 3086. 
 
60 TABLE OF CASES. 
 
 Slaughter v. People, 2 Doug., 334. 
 
 Constitutional Law, 612; Criminal Law, 860. 
 Sleight V, Henning, 12 Mich., 871. 
 
 Error, 1549 ; Evidence, 1723 ; Practice in Circuit Courts, 2648, 
 
 2676. 
 Smalley v. Briatol, 1 Mich., 153. 
 
 Pleadings, 2537. 
 Smalley v. Hasten, 8 Mich., 529. 
 
 Judgments, &c., 2114. 
 Smart v. Howe, 3.Mich., 590. 
 
 Affldayit, 94 ; Appeal from Justices' Courts, 162, 171. 
 Smart's Executors, Scott v. 
 Smith V. Austin, 9 Mich., 465, 
 
 Equity, 1300 to 1303. 
 Smith T. Austin, 11 Mich., 34. 
 
 Equity, 1304 ; Trusts, 3184. 
 Smith V. Barstow, 2 Doug., 155. 
 
 Contracts, 683, 684, 710 ; Corporations, 721. 
 
 Cited, 2 Doug., 255, 
 Smith, Barstow v. 
 Smith V, Bonhoof, 3 Mich., 115, 
 
 Beligious Societies, 2932. 
 Smith V. Brown, 2 Mich., 161. 
 
 Equity, 1470 ; Witness, 3302, S'.OS. 
 Smith, Bryan v. 
 Smith, Burpee v. 
 Smith V, Canfield, 8 Mich., 493. 
 
 Partnership, 2474. 
 Smith V. Cicotte, 11 Mich., 883. 
 
 Bond, 472, 473. 
 Smith, Gardner v. 
 Smith, Hubbard V. 
 Smith, Jones v. 
 Smith V. Kendall, 9 Mich., 241, 
 
 Bills and Notes, 377. 
 Smith V, Lawrence, 12 Mich., 431. 
 
 Evidence, 1786, 1822. 
 Smith, Lawyer v. 
 Smith V. McAdam, 3 Mich., 506. 
 
 Eminent Domain, 1105 ; Michigan Southern Bailroad Company, 
 
 2270. 
 Smith V. Mitchell, 9 Mich., 261. 
 
 Practice in Supreme Court, 2761. 
 Smith V. Mitchell, 12 Mich., 180. 
 
 Assignment, 216, 226, 230, 235 ; Damages, 979 to 981. 
 Smith V. People, 2 Mich., 415. 
 
 Evidence, 1693 to 1695. 
 Smith, People v. 
 Smith V. Saginaw City Bank, Har. Ch,, 426. 
 
 Equity, 1443. 
 Smith, Sears v. 
 Smith, Sibley T. 
 Smith V. Smith, 13 Mich., 258. 
 
 Appeal from Chancery, 150 to 153 ; Equity, 1473, 1509, 1537, 1538, 
 
 Mortgage of Lands, 2376. 
 Smith, Starkweather v. 
 Smith V. Stoddard, 10 Mich., 148. 
 
 Usury, 3196 to 3198. 
 
 Cited, 10 Mich., 289. 
 
TABLE OF OASES. 61 
 
 Smith T. Thompson, Wal. Oh., 1. 
 
 Equity, 1191, 1194,1199. 
 
 Cited, "Wal. Ch.. 324, 499. 
 Smith V. Village of Adrian, 1 Mich., 495. 
 
 Constitutional Law, 611 ; Corporations, 729 ; Criminal Law, 890 to 
 
 893 ; Municipal Corporations, 3400. 
 
 Cited, 2 Mich., 182 ; 13 Mich., 499. 
 Smith V, Warner, 14 Mich. 
 
 Practice in Circuit Courts, 2698 ; Set Off, 2969. 
 Snook, Batty v. 
 Snook T. Davis, 6 Mich., 156. 
 
 Fraud, &c., 1882, 1888 ; Replevin, 2950. 
 
 dMOMich., 465. 
 Snow V. Perkins, 3 Mich., 238. 
 
 Bills and Notes, 408, 413, 413 ; Certiorari, 524 ; Conflict of Law», 
 
 571. 
 
 Cited, 5 Mich., 538. 
 Snow, "Weed v. 
 Snyder, Peck v. 
 Snyder v. Snyder, 6 Mich., 470. 
 
 Dower, 1070 to 1072. 
 Snyder, Taylor v. 
 Soldan, Chaffee v. 
 Sorrel v. Brewster, 1 Mich.. 373. 
 
 Principal and Agent, 3823. 
 Soule, Hallv. 
 Soule, Lewis v. 
 Southworth, Lothrop v. 
 Southworth v. Palmyra and Jacksonburgh B.B. Co., 3 Mich., 387. 
 
 Constitutional IJaw, 659. 
 Spafford v. Beach, 3 Doug., 150. 
 
 Judgments, 3087, 2093, 2098, 2104, 2105. 
 
 Cited, 3 Mich., 379 ; 3 Mich., 303. 
 Spalding, Beard v. 
 Spalding, Ireland v. 
 Spalding, Prentiss v. 
 Spalding, "Walbridge v. 
 Spangler, Matter of, 11 Mich., 298. 
 
 Draft for Military Duty, 1074 ; Habeas Corpus, 1983. 
 Spaulding, Perkins v. 
 Spear v. Carter, 1 Mich,, 19. 
 
 Jurisdiction, 3136 ; Justices Courts, 2145, 2175, 2176. 
 
 Cited, 1 Mich., 160. 
 Specht, May v, 
 Spencer, Mills v. 
 Spencer, "Wetherellv. 
 Spier V. McQueen, 1 Mich., 252. 
 
 Limitation of Actions, 2333. 
 Spies V. Newberry, 2 Doug., 435. 
 
 Bills and Notes, 407. 
 Sprague, Thomas v. 
 Squierv. Hydliff, 9 Mich., 274. 
 
 Infant, 2048. 
 Squires, Hatch v. 
 Stadler v. City of Detroit, 13 Mich., 346. 
 
 Detroit City, 1042; Officer, 2441, 3443. 
 Stadler v. Moors, 9 Mich., 264. 
 
 Justices' Courts, 2165, 2166. 
 
63 TABLE OP CASES. 
 
 Stafford V. Hulbert, Har. Ch., 435. 
 
 Equity, 1191. 
 Cited, Wal. Ch., 1, 
 Stanton, Dodge v. 
 Stanton, Gregory v. 
 Staples, Jones v. 
 Starkweather, Ingerson v. 
 Starkweather y, Smith, 6 Mich., 877. 
 
 Evidence, 1717 ; Husband and Wife, 3016. 
 OiM9Mich., 75. 
 St. Armour v. Rivard, 3 Mich., 394. 
 
 Wills, 3387 to 3390. 
 State Auditors, People v. 
 State of Michigan v. How, 1 Mich., 513. 
 
 Banks and Banking, 347. 
 
 Ciua, 1 Mich., 483. 
 State Treasurer, People v. 
 St. Clair City, Gurney v. 
 Steamboat Chesapeake, Drew V. 
 Steamboat Missouri, Moses v. 
 Steamboat Red Jacket, Robinson v. 
 Steevens, Albany City Bank v. 
 Stephens, Young v. 
 Stephenson v. Little, 10 Mich., 433. 
 
 Action, 33, 33 ; Confusion of Goods, 577 ; Public Lands, 3856, 
 Stevens v. Brown, Wal. Ch., 41. 
 
 Constitutional Law, 600 ; Mortgage of Lands, 3339, 3360. 
 
 Oited,Wa\. Ch., 173 ; 7 Mich., 63 ; 11 Mich,, 355. 
 Stevens, Doyle v. 
 Stevens, Gard v. 
 Stevens v. Osman, 1 Mich., 93. 
 
 Pleadings, 3589 ; Replevin, 3944. 
 Stevens, Steward v. 
 Stevens v. Townsend, 1 Doug. 77. 
 
 Appeal from Chancery, 101 to 104. 
 Stevens v. Tuller, 4 Mich., 387. • 
 
 Action, 75, 76. 
 Steward v. Dixon, 6 Mich., 391. 
 
 Practice in Circuit Courts, 3755. 
 Steward v. Stevens, Har. Ch., 169. 
 
 Equity, 1191. 
 
 Cited, Wal. Ch., 4 
 Stewart, Comstock v. 
 Stewart v. Hill, 1 Mich., 365, 
 
 County Courts, 764. 
 Stewart, People v. 
 Stewart, Piatt v. 
 Stewart, Whipple v. 
 Stoddard, Smith v. 
 
 Stockman, Highway Commissioners v. 
 Stockton V. Williams, Har. Ch., 341. 
 
 Equity, 1443. 
 
 Cited, Wal. Ch., 75. 
 Stockton V. Williams, Wal. Ch., 130. 
 
 Equity, 1114,1168, 1397, 1466 ; Evidence, 1739, 1768 ; Grants, 1940 
 
 to 1943 ; Treaty, 8164. 
 
 Affirmed, 1 Doug., 546. 
 
TABLE OF CASEa 63 
 
 Stockton V. Williams, 1 Doug., 546. 
 
 Adverse Posaession, 88 ; Equity, 1169, 1170 ; Estoppel, 16S0 ; Evi- 
 dence, 1736 ; Grants, 1940 to 1942 ; Treaty, 3164. 
 
 Gited, 2 Micli., 212; 9 Mich., 381, et seq, 
 Stoddard, Smith v. 
 Stokes V. Jacobs, 10 Mich., 290. 
 
 Practice in Supreme Court, 3797. 
 Stokes, Jacobs v. 
 Stone, Cummings v. , 
 
 Stone, Green v. 
 Storey v. Bird, 8 Mich., 316. 
 
 Practice in Circuit Courts, 2708 ; Practice in Supreme Court, 2813. 
 Storey v. Child, 2 Mich., 107. 
 
 Practice in Circuit Courts, 2709, 2710, 
 Story V. Story, "Wal. Ch., 421. 
 
 Divorce, 1053, 1053. 
 
 Cited, 6 Mich., 286. 
 Stou*. V. Keyes, 3 Doug., 184. 
 
 Action, 25 ; Common Law, 552 ; Justices' Courts, 2168. 
 
 Cited, 8 Mich., 25. 
 StoweU, "Welch v. 
 Street v. Dow, Har. Ch., 427. 
 
 Contracts, 673 ; Equity, 1211 ; Specific Performance, 3012. 
 Streeter v. Paton, 7 Mich., 341. 
 
 Certiorari, 542 ; Estates of Deceased Persons, 1593. 
 
 Cited, 11 Mich., 533 ; 13 Mich., 361. 
 Streets, Atwater v. 
 Strong, Austin v. 
 Strong V. Daniels, 3 Mich., 466. 
 
 Costs, 751. 
 Strong V. Farmers and Mechanics' Bank, 4 Mich., 350. 
 
 Tender, 3146. 
 Strong, Lord v. 
 Studley, Sawyer v. 
 
 Superintendents of Poor of Lapeer, Perkins v. 
 Superintendents of Poor of Macomb, Hewitt v. 
 Supervisors of Macomb, People v. 
 Supervisors of St. Clair, Attorney-General v. 
 Supervisors of St. Joseph v. Coffenbury, 1 Mich., 355. 
 
 Bond, 469, 470; Variance, 3201. 
 Sutherland, Enos v. 
 Sutherland v. Crane, Wal. Ch., 523. 
 
 Evidence, 1761. 
 
 Cited, 3 Mich., 239 ; 5 Mich., 210. 
 Sutliff, Dunn v. 
 Sutton V. Facey, 1 Mich., 243. 
 
 Physicians, 3506. 
 Sutton V. Hanford, 11 Mich., 513. 
 
 Assignment, 239, 243. 
 Sutton, Lester v. 
 Suydam v. Dequindre, Har. Ch., 347. 
 
 Assignment, 321, 251 ; Equity, 1255. 
 Suydam v. Dequindre, Wal. Ch., 33. ' 
 
 Equity, 1416, 1454, 1455, 1458 ; Estates of Deceased Persons, 1616. 
 Swan V. Williams, 3 Mich., 437. 
 
 Eminent Domain, 1101, 1103, 1106 ; Territorial Council, 3149. 
 
 Cited, 2 Mich., 493 ; 4 Mich., 329; 5 Mich,, 274, 281. 
 Sweet, People v. 
 
64 TABLE OP CASES. 
 
 Sweetzer v. Mead, 5 Mich., 33. 
 
 Error, 1589 ; Practice in Circuit Courts, 2678, 2723 ; Practice in 
 
 Supreme Court, 2776, 
 Sweetzer v. Mead, 5 Mich., 107. 
 
 Error, 1565 ; Evidence, 1753 ; Mortgage of Chattels, 2291 ; Beplev- 
 
 in, 2954. 
 
 Cited, 5 Mich., 513; 6 Mich., 283; 8 Mich., 138; 10 Mich,, 365; 12 
 
 Mich., 157. 
 Swetland v. Swetland, 3 Mich., 482. 
 
 Equity, 1246 ; Mortgage of Lands, 2316, 23ia 
 
 CUed, 7 Mich., 23, 25. 
 Swift, Thayer v. 
 Symes v. Oliver, 13 Mich., 9, 
 
 Damages, 978. 
 Taff V. Hosmer, 14 Mich, 
 
 Wills, 329a 
 Taflf V. Hosmer, 14 Mich. (Second case.) 
 
 Pleadings, 2572 ; "Will, 3294. 
 Tannahill v. Tuttle, 3 Mich., 104. 
 
 Mortgage of Chattels, 2281 to 2285. 
 
 Cited, 3 Mich., 298 ; 4 Mich., 297 ; 7 Mich., 531. 
 Tate v. Whitney, Har. Ch., 145. 
 
 Consideration, 583 ; Duress, 1078. 
 Taylor, Barber v. 
 Taylor, Cleland v. 
 Taylor, Farrell v. 
 Taylor, Hubbard v. 
 Taylor v. Kneeland, 1 Doug., 67. 
 
 Slander, 3979 to 2985. 
 Taylor, Leonard v. 
 Taylor, People v. 
 Taylor v. Snyder, Wal. Ch., 490. 
 
 Equity, 1252, 1264, 1405. 
 Teflft V, McNoah, 9 Mich,, 201. 
 
 Evidence, 1704 ; Novation, 2430 ; Practice in Circuit Courts, 2635, 
 
 2714. 
 Tefft, Pratt v. 
 Teft V. Teft, 3 Mich., 67. 
 
 Constitutional Law, 649. 
 Teller v. Wetherell, 6 Mich., 46. 
 
 Error, 1576 to 1579 ; Practice in Supreme Court, 2789, 279a 
 Teller v. Wetherell, 9 Mich., 464. 
 
 Action, 43 ; Judgments, 2083. 
 TeUer v. Willis, 12 Mich., 268. 
 
 Error, 1580. 
 Teller v. Willis, 12 Mich., 384. 
 
 Error, 1581 to 158a 
 Ten Eyck v. Wing, 1 Mich., 40. 
 
 Limitation of Actions, 2235 to 2227, 2231. 
 Terry, Weed v. 
 Thayer v, Denton, 4 Mich., 192. 
 
 Payment, 2502, 2503. 
 Thayer v. Lane, Har. Ch., 247. 
 
 Equity, 1180, 1181, 1358. 
 Thayer v. Lane, Wal. Ch., 300. 
 
 Equity, 1242, 1399, 1473 ; Estates of Deceased Persons, 1593, 1615 ; 
 
 Partnership, 3471. 
 
 Cited, 6 Mich., 319 ; 13 Mich., 372. 
 Thayer v. People, 2 Doug., 417, 
 
 Criminal Law, 908, 909. 
 
TABLE OF CASES. 65 
 
 Thayer v. Sherlock, 4 Mich., 173. 
 
 Damages, 974. 
 Thayer, Sherlock v. 
 Thayer v. Swift, Har. Ch., 430. 
 Equity, 1144, 1145, 1191, 1199. 
 Cited, Wal. Oh., 1. 
 Thayer t. Swift, Wal. Ch., 384. 
 
 Equity, 1438 to 1441. 
 Thomas, Chappee t. 
 Thomas v. Dodge, 8 Mich., 51. 
 
 Guaranty, 1956, 1957, 1959 ; Homestead, 1990. 
 Cited, 10 Mich., 549 ; 12 Mich., 13, 15, 414. 
 Thomas v. Stone, Wal. Ch., 117. 
 
 Bona Fide Purchaser, 458 ; Equity, 1327 ; Evidence, 1653. 
 Cited, 6 Mich., 135, as Thomas v. Graham. 
 Thomas, Lockwood v. 
 Thomas, Quirk v. 
 Thomas v. Sprague, 12 Mich., 120. 
 
 Garnishees, 1920, 1928 ; Practice in Circuit Courts, 2682. 
 Thomas, Thompson v. 
 Thompson, Benedict v. 
 Thompson v. Bowers, 1 Doug., 321. 
 
 Pleadings, 2583, 2587; Slander, 2985 to 2988. 
 Cited, 6 Mich., 514, 515. 
 Thompson, Chipman v. 
 Thompson, Goff v. 
 Thompson, Joy v. 
 Thompson, Kibbee v. 
 Thompson v. Mack, Har. Ch., 150. 
 
 Mortgage of Lands, 2336 ; Recording Laws, 2915, 2918. 
 Thompson v, Richards, 14 Mich. 
 
 Evidence, 1714, 1775 ; Waiver, 3320. 
 Thompson, Smith v. 
 Thompson v. Thomas, 11 Mich., 374. 
 
 Attachment, 272, 373. 
 Thorn, Hunt v. 
 Thome v. Hilliker, 13 Mich., 215. 
 
 Equity, 1467. 
 Thurber v. Jewett, 3 Mich., 295. 
 
 Mortgage of Chattels, 2304 ; Tender, 3144, 3145. 
 CiUd, 9 Mich., 44. 
 Thurber, Wat on v. 
 Thurston v. Prentiss, Wal. Ch., 529. 
 
 Mortgage of Lands, 2327, 2328 | Usury, 3192. 
 Affirmed, 1 Mich., 193. 
 Thurston v. Prentiss, 1 Mich., 193. 
 
 Equity, 1491 ; Mortgage of Lands, 2327, 3328 ; Principal and Sure 
 ty, 2843, 2843 ; Statutes, 3061 ; Usury, 3192. 
 Cited, 9 Mich., 24, 26 ; 10 Mich., 289. 
 Ticknor Estate, Matter of, 13 Mich., 44. 
 Statutes, 3052 ; Wills, 3299 to 3301. 
 Tillman v. Fuller, 13 Mich,, 118. 
 
 Error, 1585, 1586 ; Frauds, Statute of, 1910 ; Pleadings, 8538, 2589, 
 2557. 
 Tillman, May v. 
 Tillman v. People, 12 Mich., 401. 
 
 Dedication, 990; Ways, 3336, 3346, 3348, 3357, 3361, 3262. 
 Tinker v, McCauley, 3 Mich., 188. 
 
 Bills and Notes, 396 ; Guaranty, 1961, 1962. 
 Tisdale, People v. 
 
TABLE OP CASES, 
 
 Titus V. Minnesota Mining Co., 8 Micli., 183. 
 
 Principal and Agent. 3818. 
 Tivey v. People, 8 Mich.', 138. 
 
 Statutes, 3067. 
 Toms, Waterman v. 
 Todd, Bonesteel v. 
 Topliff T. Vail, Har. Ch., 340. 
 
 Partnership, 3485 to 3487. 
 Torrey, Walton v. 
 Tower v. Detroit and Milwaukee Railway Co., 7 Mich , 10. 
 
 Practice in Supreme Court, 3806, 3807. 
 Tower v. Lamb, 6 Mich., 363. 
 
 Appeal from Justices' Courts, 169, 170. 
 Town V. Bank of River Raisin, 3 Doug., 530. 
 
 Assignment, 315, 318 ; Corporations, 745 to 747. 
 Town, Bower v. 
 Town, Hinchman v. 
 Townsend, Stevens v. 
 Township of Marathon v. Township of Oregon, 8 Mich., 373. 
 
 Mandamus, 3245 ; Townships, 3163. 
 Township of Oregon, Marathon v. 
 Township of Rowland, Monroe v. 
 Township of Saginaw v. School District No. 1, 9 Mich., 541. 
 
 Practice in Circuit Courts, 3660 ; Schools, 2964, 2965. 
 Township of Texas v. Wager, 13 Mich., 39. 
 
 Taxation, 3137 to 3139. 
 Township Board of Fillmore, People v. 
 Township Board of LaUrange, People v. 
 Township Board of Overyssel, People v. 
 Township Board of Scio, People v. 
 Township Board of Springwells, People v. 
 Trask v. Green, 9 Mich., 358. 
 
 Attachment, 389 ; Equity, 1301 ; Judgments, 3096, 3097 ; Uses, 3191. 
 
 Cited, 10 Mich., 493 ; 11 Mich., 251. 
 Treasurer of Detroit, People v. 
 Treasurer of Wayne County, People ». 
 Tregent, Couse v. 
 Trowbridge, Burkham v. 
 Trowbridge v. Harleston, Wal. Ch., 185. 
 
 Conditions, 560 ; Mortgage of Lands, 2373. 
 Trowbridge, Newberry v. 
 
 Troy City Bank, Farmers and Mechanics' Bank v. 
 Trudo V. Anderson, 10 Mich.^ 357. 
 
 Practice in Circuit Courts, 2681, 2682 ; Practice in Supreme Court, 
 
 3793 ; Principal and Agent, 3835, 3833 ; Replevin, 3942. 
 
 Cited, 13 Mich., 123 ; 13 Mich., 443. 
 Truesdail Sanger v. 
 Truesdale v. Hazard, 3 Mich., 344. 
 
 Boat and Vessel Law, 446 to 448. 
 
 CUed, 11 Mich., 135. 
 Tryon, Gould v. 
 
 Tryon, People v, / 
 
 Tucker v. Mowrey, 12 Mich., 378. 
 
 Contracts, 681. 
 Tucker v. Rohrbaek, 13 Mich., 73. 
 
 Former Suit, 1855, 1856. 
 TuUer, Stevens v. 
 TuUy V. People, 6 Mich., 373. 
 
 Ocimlnal Lia,w, 194. 
 
TABLE OP CASES. 67 
 
 Turner v. Chapman, 6 Mich., 396. 
 
 Note to Caswell v. Comstock, 
 Turner v. Lewis, 3 Mich., 350. 
 
 Boat and Vessel Law, 434 to 436, 
 Gited, 11 Mich., 135. 
 TurriU v. "Walker, 4 Mich,, 177. 
 
 Jurisdiction, 3134 ; Practice in Circuit Courts, 3635, 3636. 
 Tuttle, Tannahill v. 
 Tweed v. Metcalf, 4 Mich., 579. 
 
 Constitutional Law, 657 ; Taxation, 3093 to 3099, 3104 to 3108 ; 
 Townships, 3161. 
 Oiteu, 5 Mich,, 155, 503. 
 Twombly y. Parsons,. 10 Mich., 373. 
 
 Practice in Circuit Courts, 3715 to 3717. 
 Tyler, Blanchard v. 
 Tyler, Jones v. 
 Tyler v. People, 8 Mich,, 330. 
 
 Admiralty Courts, &c., 78; Constitutional Law, 605; Criminal 
 Law, 781; Navigable "Waters, 3411 ; Practice in Circuit Courts, 3734. 
 Gited, 11 Mich., 339 ; 13 Mich., 163, 501. 
 Tyler, People v. 
 Ulmann, Cooper v. 
 Underwood v. Waldron, 13 Mich., 73. 
 
 Contract, 715, 716 ; Coiporations, 730 : Pleadings, 3560. 
 Vail, Topliffv. 
 Vail, "Williams v. 
 Van Blarcom t. ^^tna Insurance Co., 6 Mich,, 399. 
 
 Practice in Circuit Courts, 3739. 
 Van Brunt v. "Wakelee, 11 Mich^ 177. 
 
 Mortgage of Chattels, 3305. 
 Van Cleve, People t. 
 Vanderhoof V. Dean, 1 Mich., 463. 
 
 Arbitration and Award, 189. 
 Vandling, Mowrey t. 
 Van Dyke y. Davis, 3 Mich,, 144. 
 
 Consideration, 583 ; Contracts, 696 ; Equity, 1843, 1470. 
 Van G-order, Gugins y. 
 Van Husan v. Kanouse, 13 Mich., 303. 
 
 Constitutional Law, 589 ; Interest, 3074 ; Mortgage of Lands, 3319, 
 3383. 
 Van Husan, Nye v. 
 Van Kleek v. Eggleston, 7 Mich., 511. 
 
 Evidence, 1787 ; Practice in Circuit Courts, 3743 ; Eemedy, 3934 ; 
 Judgment, 3307. 
 Van Renselaer, Carroll v. ' 
 
 Van Renselaer v. "Whiting, 13 Mich., 449. 
 
 Error, 1539 ; Practice in Circuit Courts, 3719. 
 Van Vleet, Blackwood v. 
 Village of Adrian, Smith v. 
 Village of Romeo v. Chapman, 2 Mich., 179. 
 
 Municipal Corporations, 2401. 
 Wadsworth v. Loranger, Har, Ch., 113. 
 
 Evidence, 1766 ; Mortgage of Lands, 3808, 3309. 
 Followed, 7 Mich., 33. 
 "Wadsworth, McHardy v 
 "Wager, Township of Texas y. 
 "Waite, Russell v. 
 Wakelee, Van Brunt v. 
 
 81 
 
TABLE OF CASES. 
 
 Walbridge v. Spalding, 1 Doug., 451. 
 
 Attachment, 262, 263, 264. 
 Waldby v. Callendar, 8 Mich., 430. 
 
 Circuit Court Commissioners, 541. 
 
 Cited, 12 Mich., 170 ; 13 Mich., 340. 
 Waldron, Underwood v. 
 Wales V. Bank of Michigan, Har. Ch., 308. 
 
 Banks and Banking, 332 ; Equity, 1124. 
 Wales V. Jones, 1 Mich., 254. 
 
 Pleadings, 2568, 2569. 
 
 Cited, 12 Mich., 21. 
 Wales V. Lyon, 2 Mich., 276. 
 
 Bankruptcy, 329 ; Judgments, 2122, 2123 ; Pleadings, 2583 ; .Prac- 
 tice in Circuit Courts, 2642, 2643. 
 Wales T. Newbould, 9 Mich., 45. 
 
 Equity, 1111, 13C9 ; Husband and Wife, 2017, 2021. 
 
 Cited, 10 Mich., 335 ; 11 Mich., 265. 
 Walker, Niles v. 
 Walker, People v. 
 Walker, Sage v. 
 Walker, Turrill v. 
 Wall V. Eastman, 1 Mich., 286. 
 
 Action, 15. 
 Wallace v. Dunning, Wal. Ch., 416. 
 
 Equity, 1833. 
 
 Cited, 1 Mich., 340 ; 11 Mich., 58. 
 Wallace v. Finnegan, 14 Mich. 
 
 Set Off, 2968. 
 Wallace v. Pidge, 4 Mich., 570. 
 
 Specific Performance, 3003, 3004. 
 Walton V. Torrey, Har. Ch., 259. 
 
 Estates of Deceased Persons, 1602 ; Wills, 3285, 3286. 
 
 Cited, 2 Mich., 194, 333 ; 11 Mich., 226, 
 Wanzer v. Blanchard, 3 Mich., 11. 
 
 Deed, 1017 ; Estoppel, 1624 ; Town Plats, 3157. 
 Ward, Caswell v. 
 Ward V. Cozzens, 3 Mich., 252. 
 
 Imprisonment for debt, 2039 ; Process, 2852. 
 Ward V. Fellers, 3 Mich., 281. 
 
 Carriers of Goods, 500 ; Recoupment, 2930. 
 
 CUed, 5 Mich., 456 ; 8 Mich., 354. 
 Ward V. Jewett, Wal. Ch., 45. 
 
 Equity, 1451,1472,1508. 
 
 Cited, 12 Mich., 323. 
 Ward, Kimball v. 
 
 Ward, Michigan Central Railroad Co. t. 
 Wardv. Warner, 8 Mich., 508, 
 
 Action, 45, 46 ; Ways, 3237. 
 Ward V. Willson, 3 Mich., 1. 
 
 Boat and Vessel Law, 442 to 444 ; Recoupment, 2929. 
 
 Cited, 11 Mich., 125. 
 Warner v. Porter, 2 Doug., 358. 
 
 Certiorari, 509, 529. 
 Warner, Smith v. 
 Warner, Ward t, 
 Warner v. Whittaker, 5 Mich., 241. 
 
 Appeal from Chancery, 121, 124, 182. 
 
TABLE OF CASES. 69 
 
 Warner v. Whittaker, 6 Mich., 133. 
 
 Appeal from Chancery, 146 ; Bona Fide Purchaser, 4.5S, 460 ; 
 Equity, 1342, 1474. 
 
 Cited, 8 Mich., 403 ; 9 Mich., 320 ; 10 Mich., 124, 495 ; 12 Micli., 
 342 ; 13 Mich., 373. 
 Warner, Wight t. 
 Warner, Wing v. 
 Warren, Wattles v, 
 Washburn v. People, 10 Mich., 372. 
 
 Criminal Law, 786, 901, 903, 907 ; Evidence, 1606. 
 am, 11 Mich., 343 ; Followed, 10 Mich., 395. 
 Washington County Bank v. Jerome, 8 Mich., 490. 
 
 Contracts, 678. 
 Waterman v, Toms, 7 Mich., 78. 
 
 Practice in Supreme Court, 2812. 
 Watkins v. Atkinson, 2 Mich , 151. 
 Boat and Vessel Law, 445. 
 Cited, n Mich., 125. 
 Watson, Day v. 
 Watson, Higgins v. 
 Watson V. Thurber, 11 Mich., 457. 
 
 Acknowledgment of Deeds, 9, 10 ; Husband and Wife, 2016, 2033. 
 Wattles V. People, 
 
 Criminal Law, 894, 897, 938. 
 Wattles T. Warren, 7 Mich., 309. 
 
 Practice in Supreme Court, 2757. 
 Wattles V. Warren, 8 Mich., 77. 
 
 County Courts, 763. 
 Way V. Billings, 2 Mich., 397. 
 
 Corporations, 730 ; Evidence, 1643, 1643, 1701. 
 Cited,_ 5 Mich., 65. 
 ■Vfayne Circuit Court, People v, 
 Wayne County, Bacon v. 
 Wayne County Auditors, People v. 
 
 AVebb V. Mann, 3 Mich., 189. , „^^„ 
 
 Action, 30; Justices' Courts, 3146; Mortgage of Chattel.?, 22,SS : 
 Tenant in Common, 3143 ; Waiver, 3320. 
 Webb V. Williams, Wal, Ch., 453. 
 
 Equity, 1116, 1436. 
 Webb V Williams, Wal. Ch., 544. 
 
 Mortgage of Lands, 3386. 
 Webber v. Hanke, 4 Mich., 198. 
 Evidence, 1686, 1687, 1756. 
 Webster v. Fisk, 9 Mich,, 250. 
 
 Practice in Supreme Court, 3791, 3793. 
 Webster V. Hitchcock, 11 Mich., 56. 
 
 Appeal from Chancery, 108; Equity, 1388, 1337. 
 Cited, 13 Mich., 479. 
 Webster, Merrick v. 
 Webster, Page v. 
 Webster, People v. 
 Webster, Prentiss v. 
 Weed V. Lyon, Har. Ch., 363. 
 
 Recording Laws, 3919. 
 Weed V. Lyon, Wal. Ch., 77. 
 
 Appeal from Chancery, 100. 
 Weed V. Snow, 1 Mich., 138. 
 Evidence, 1835. 
 Cited, 7 Mich., 61. 
 
TO TABLE OF CASES. 
 
 Weed V. Terry, Wal Ch., 501. 
 
 Consideration, 583 ; Specific Performance, 2996, 3010. 
 
 Affirmed, except as to mfSs dower, 3 Doug., 344. 
 Weed V. Teriy, 3 Doug., 344. 
 
 Consideration, 583 ; Specific Performance, 3996, 3010, 3011. 
 
 Cited, 3 Micli., 149. 
 Welch V. Bagg, 13 Mich., 41. 
 
 Action, 47 ; Certiorari, 534, 537. 
 Welch V. Frost, 1 Mich., 30. 
 
 Action, 61 ; Justice of the Peace, 3190. 
 Welch V. Stowell, 3 Doug., 333. 
 Criminal Law, 861 to 863 ; Nuisance, 3431, 3432. 
 
 Cited, 11 Mich., 453. 
 WeUes V. City of Detroit, 3 Doug., 77. 
 
 Attachment, 393. 
 Welles V. River Raisin and Grand River Railroad Company, Wal. Ch., 35 
 
 Equity, 1183,1133. 
 Wellington, Huntington v. 
 Wells, People v. 
 Wells V. Scott, 4 Mich,, 347. 
 
 Appeal from Justice's Courts, 170. 
 
 Cited, 6 ilich., 363. 
 Wendell, Schwarz v. 
 Wesleyan Seminary v. Fisher, 4 Mich., 515. 
 
 Consideration, 585, 586. 
 
 Westhr'oolj; v, Comstock, Wal. Oh., 314. 
 
 Ouardian and Ward, 1964 to 1966 ; Husband and Wife, 3013. 
 Western Massachusetts Insurance Co. v. RUcer, 10 Mich., 279. 
 
 Insurance, 3054, 3055. 
 Wetherell v. Spencer, 3 Mich., 123. 
 
 Mortgage of Chattels, 2294, 2295 ; Replevin, 3937. 
 Wetherell, Teller v. 
 Wetherwas v. Paine, 2 Mich., 555. 
 
 BiUs and Notes, 396 ; Garnishees, 1916 to 1918 ; Joint Debtors, 
 
 3077. 
 Wetmore v. Aldrich, 10 Mich., 515. 
 
 Contracts, 718. 
 Whartonv. Fitch, Wal. Ch., 143. 
 
 Equity, 1204. 
 
 Cited, Wal Ch., 324. 
 Wheeler V. Clinton Canal Bank, Har. Ch., 449. 
 
 Equity, 1110, 1117, 1209, 1210, 1262, 1265, 1309. 
 Wheeler, Cook v. 
 Wheelock v. Rice, 1 Doug., 267. 
 
 Bankruptcy, 331 ; Contracts, 710 ; Pleadings, 2578. 
 
 Cited, 2 Doug., 169. 
 Whipple V. Brown, Har. Ch., 436. 
 
 Equity, 1447 to 1449. 
 Whipple V. Farrar, 3 Mich., 436. 
 
 Constitutional Law, 616 ; Equity, 1130 ; Judgments, 3102, 2103 ; 
 
 Waiver, 3333. 
 Whipple V. Stewart, Wal. Ch., 357. 
 
 Equity, 1443 to 1445. 
 Whipple V. Williams, 1 Mich., 115. 
 
 Aiadavit, 93. 
 Whitcomb, Bragg v. 
 
TABLE OF CASES. 71 
 
 White V. Bailey, 10 Mich., 155. 
 
 Evidence, 1G63, 1685, 1725, 1735, 1753 ; Practice in Circuit Courts, 
 
 2672. 
 
 Cited, IS Mich., 489. 
 White, Bench v. 
 White V. Forbes, Wal, Ch., 112, 
 
 Equity, 1140 to 1142. 
 White V. Port Huron and Milwaukee Railway Co., 13 Mich., 356. 
 
 Equity, 1159, 1187. 
 White V. Zane, 10 Mich., 333. 
 
 Huaband and Wife, 2020. 
 White Pigeon Beet Sugar Co., Hasey y. 
 Whiting, Van Renselaer v. 
 Whitmore, Elliott v. 
 Whitney, Rash t. 
 Whitney, Tate v. 
 Whittaker, Bidwell v. 
 Whittaker, Warner v. 
 Whittemore, Michigan Insurance Co. v. 
 Whitwell V. Carter, 4 Mich., 329. 
 
 Wager, 3217. 
 Whitwell T. Emory, 3 Mich., 84. 
 
 Recording Laws, 2921. 
 
 Cited., 6 Mich., 487, 489, 494. 
 Whitwell, Emory v, 
 Wight T. Maxwell, 4 Mich., 45. 
 
 Conflict of Laws, 576. 
 
 Cited, 11 Mich., 135. 
 Wight, Montgomery v, 
 Wight v. Warner, 1 Doug., 384. 
 
 Certiorari, 539; Jurisdiction, 2125, 3136, 3130; Justices' Courts, 
 
 3145. 
 
 Cited, 1 Doug., 393; 3 Doug., 384, 587; 1 Mich., 31, 89, 153, 160 ; 3 
 
 Mich., 348 ; 5 Mich., 416 ; 8 Mich., 64. 
 Wil^iox T. Hill, 11 Mich., 356. 
 
 Evidence, 1650 ; Mortgage of Lands, 2347, 3348. 
 Wilcox V. Kassick, 3 Mich., 165. 
 
 Evidence, 1780 ; Jurisdiction, 3139 to 2143 ; Pleadings, 2579, 3580. 
 Wilcox, Earned v. 
 Wilcox, McKee v. 
 Willard v. Longstreet, 3 Doug., 172. 
 
 Appraisal Law, 184, 185 ; Constitutional Law, 597 ; Sheriff, 2977. 
 
 Cited, 1 Mich., 76 ; 3 Mich., 624. 
 Willard's Administrators, Kimmell v. 
 Williams, Bank of Michigan v. 
 Williams, Bishop v. 
 Williams, Dayton v. 
 Williams, Draper v, 
 Williams v. Hubbard, Wal. Ch., 28. 
 
 Equity, 1189 to 1193, 1359, 1486. 
 
 Cited, Wal. Ch., 324, 493. 
 Williams v, Hnbbard, 1 Mich., 446. 
 
 Equity, 1194, 1195, 1303, 1206, 1341 ; Evidence, 1813. 
 Williams, Jerome v. 
 Williams, Manning v. 
 Williams v. Mayor, &c., of Detroit, 3 Mich., 560. 
 
 Constitutional Law, 638, 629; Detroit City, 1046; Equity, 1113, 
 
 1136 ; Taxation, 3126 to 3134, 3141. 
 
 Cited, 5 Mich., 258 to 280 ; 8 Mich., 379 to'SOS ; 13 Mich., 153. 
 
72 TABLE OP CASES. 
 
 Williams, Mercer v. 
 
 Williams v, Michigan Central Railroad Co., 2 Mich., 259. 
 
 Fences, 1843, 1846, 1848, 1849 ; Negligence, 2416. 
 
 Cited, 9 Mich., 160 ; 11 Mich., 452 ; 7 Mich., 418. 
 Williams, Stt ckton v, 
 Williams, Swan v. 
 Williams v. Vail, 9 Mich., 162. 
 
 Replevin, 2958, 2959. 
 Williams, Webb v. 
 Willis, Fox V. 
 Willis, Teller v. 
 Willson, Ward v. 
 Wilson V. Arnold, 5 Mich., 98. 
 
 Atta-chment, 256, 258 ; Bona Fide Purchaser, 465. 
 
 Cited, 6 Mich., 242. 
 Wilson V. Davis, 1 Mich., 156. 
 
 Appeal from Justices' Courts, 153, 163, 166 ; Jurisdiction, 2136 ; 
 
 Justices' Courts, 2177. 
 Wilson, Hosmer v. 
 Wilson, People v, 
 Wilson, Ryan v. 
 Wilson V. Wilson, 6 Mich., 9. 
 
 Evidence, 1721 ; Specific Performance, 2999. 
 
 Cited, 6 Mich., 369. 
 Wilson v. Wilson, 6 Mich., 273. 
 
 Practice in Supreme Court, 2801, 
 Wing, Gorham v. 
 Wing, Johnson v. 
 Wing, Jones v. 
 Wing T. McDowell, Wal. Ch., 175. 
 
 Equity, 1231, 1232 ; Land Contract, 2192, 2193 ; Mortgage of Lands, 
 
 2343 ; Recording Laws, 2912, 2913. 
 
 Cited, 9 Mich., 247; Wal. Ch., 218. 
 Wing, Ten Eyck v. 
 Wing V. Warner, 2 Doug., 288, 
 
 Appeal from Chancery, 114. 
 
 Cited, 2 Doug., 301. 
 Winslow V. Herrick, 9 Mich., 880. 
 
 Action, 43, 44 ; Practice in Circuit Courts, 2640. 
 
 Cited, 9 Mich., 532. 
 Winslow, Rood v. 
 Wisner v. Davenport, 5 Mich., 501. 
 
 Constitutional Law, 657 ; Practice in Circuit Courts, 2658 ; Taxa- 
 tion; 8079, 3096, 3101, 3102 ;' Townships, 3161. 
 Wisner v, Farnham, 2 Mich., 472. 
 
 Equity, 1319 ; Fraud, &c„ 1875 ; Homestead, 1994, 2003. 
 
 Cited, 6 Mich., 469. 
 Wixom V. Davis, Wal, Ch., 15. 
 
 Equity, 1128. 
 Wood, Kercheval v. 
 Wood V. La Rue, 9 Mich., 158. 
 
 Action, 35 ; Fences, 1843 to 1845 ; Practice in Circuit Courts, 2681 
 
 to 2683. 
 Wood V. Savage, Wal. Ch., 471. 
 
 Reversed, 2 Doug., 816. 
 Wood V. Savage, 2 Doug., 316. 
 
 Fraud, &c., 1871, 1872, Husband and Wife, 2026. 
 
 Cited, 2 Mich., 385. 
 
TABLE OF CASES, 73 
 
 AVoodbridge v. City of Detroit, 8 Mich., 274. 
 Constitutional Law, 630 ; Taxation, 3141. 
 Woodbury v. Lewis, Wal, Ch„ 256. 
 
 Evidence, 1662; Mortgage of Lands, 2387, 
 Woodrow V. Micliael, 13 Mich., 187, 
 
 Landlord and Tenant, 2217. 
 Woodruff V. Phillips, 10 Mich,, 500. 
 
 Mortgage of Chattels, 2298, 2299, 
 Woodward, Latimer v, 
 Woodworth, Ankrim v, 
 Worden, Harrington v. 
 Wright V. Caldwell, 3 Mich., 51. 
 
 Carriers of Persons, 507, 508; Evidence, 1637. 
 Wright, DeForest v, 
 Wright V. DeGroff, 14 Mich. 
 
 Estoppel, 1619, 1624. 
 Wright V. Dudley, 8 Mich,, 74. 
 
 Appeal from Chancery, 153 to 156. 
 Wright V. Dudley, 8 Mich., 115. 
 
 Appeal from Chancery, 140 ; Equity, 1377. 
 Wright V. Dunham, 13 Mich., 414. 
 
 Evidence, 1700, 1814 ; Taxation, 3083, 3091, 3114, 3116, 3117. 
 Wright V. King, Har. Ch., 12. 
 
 Equity, 1131, 1131 ; Trusts, 3176, 3177. 
 Cited., Har. Ch., 368. 
 Wright, Rowe v. 
 
 Wurchererv. Hewitt, 10 Mich., 453. 
 Equity, 1242, 1292, 1474. 
 Gited, 13 Mich., 87, 373. 
 Wyckoffv. Carr, 8 Mich., 44. 
 
 Assignment, 236. 
 Wyckoffv. Wyllis, 8 Mich., 48. 
 
 Judgments, &c., 2115, 3116, 
 Wyllis, Wyckoffv. 
 Wyngert v. Norton, 4 Mich., 386. 
 
 Contracts, 693 ; Evidence, 1759. 
 Yawkey v. Richardson, 9 Mich., 539. 
 
 Courts of the United States, 771 ; Error, 1543. 
 Yawkey, Richardson v. 
 Yoare, Pew v. 
 Young, Beebee v. 
 Young V. McKee, 13 Mich., 533. 
 
 Equity, 1469, 1498 ; Infant, 2044. 
 Young V. Stephens, 9 Mich., 500. 
 
 Evidence, 1670, 1671, 1839, 1840 ; Imprisonment for Debt, 3041. 
 Zane, White v. 
 Zilwaukee Township, People v. 
 
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