A -DIGE-ST
OF TRHE
RE'PORTEID CASES
CONTAINED IN THE
MICHIGAN REPORTS.
EMBRACING
HARRINGTON'S CHANCERY REPORTS, - - 1 VOL.
WALKER'S                        - -  1  "
DOUGLASS'S MICHIGAN       (     - - 2
MICHIGAN REPORTS, BY MANNING, - - - 1  "
GIBBS,- - -  3
"    " " COOLEY,- -  -  8  "
"MEDDAUGH, - - 1C
PUBLISHED  BY  THE  COMPILER.
1866.




Entered according to Act of Congress in the year 1806, by
THBOMAS M. COOLEY,
In the Clerk's Office of the District Court of the United States for the District of
Michigan.
Dr. Chase's Bteam Printing Hoaus, Ann krbor,.lich.




PREFACE.
In preparing the following Digest, brevity and convenience 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 convenient Index to the books of Reports
PLAN OF THE WORK.
In the 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 references under each head to the page or chapter where, under any other
head, kindred matter is to be found. The first method would have
made this work too voluminous and expensive to warrant its publication 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 conclusion of each-subject, a very full TABLE OF CONTENTS 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.




iv                        PREFAUE.
THE REPORTS,
Seventeen volumes of Reports are embraced in this Digest; all of
them official and authoritative, being prepared by Reporters appointed
by the Courts under authority of law.
HARRINGTON'S CHANCIORY REPORTS embraces the decisions of CHANCELLOR FARNSWORTH 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are brief, and many of them, being based upon statutes now repealed,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 accepted and followed as authority.
WALKER'S CHANCERY REPORTS contains the decisions of CHANCELLOR MANNING from 1842 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 published 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 published.
DOUGLASS'S MICHIGAN REPORTS, in two volumes, embrace the decisions 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 w- ith confidence.
MANNING'S REPORTS, in one volume, includes the decisions from
January, 1847, to October, 1850. The head nIotes are concise and reli4I)le,
GIBEis's REPORTS, three volumes, cover the period from January, 1851,
to October, 185?.
COOLEY'S REPORTS, eight volumes, extend from January, 1858, to
October, 1864.
nMEDDAUGH'S REPORTS, one volume, follows Cooley's.
The series of " MIcHIGAN REPORTS" begins with Manning, and now
embnraces 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 subject 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.                            v
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 practice in different parts of the State is not in all respects uniform.
The jurisdiction of the Supreme Court has always been almost exclusively appellate; but prior to January, 1858, the Judges of that Court
were also Circuit Judges; meeting in bane to review the decjsions
made by themselves severally at the circuits. Now, the Justices of the
Supreme Court, except in the few cases where they may sit as magistrates, exercise judicial functions only when sitting together in that
Court. The 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. Chancery Cases, on the law and the facts, by appeal.
2. Criminal Cases, on the law, either on exceptions before sentence,
or on writ of error after sentence,
3. Civil 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 Justtces 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, 1202, 1386, 1387.
Of nuisance, 862, 863, 884 to 886.
Abbreviations, In deed, 1000; In tax proceedings, 3080, 3083a.
Of names in mortgage, 1247; In ballot, 1091, 1092.
Acceptance, Of bill, 374, 382.
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, 482 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, 3142, 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, 2261.
Admissions, 1699 to 1723.
Of demand in suit, 423 to 426, 2695, 2696.
In divorce cases, 1051.




TABLE OF SUBJECTS.                           vii
In Chancery, 1471 to 1473.
To revive debt, 2225 to 2230.
By partners, 2468, 2470.
Adultery, As defence to homicide, 787 to 792.
See DIVORCE.
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, 3, 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, 2773, 2774.
Agency of partners, 2453 to.2461, 2488.
See PRINCIPAL AND AGENT.
Agent of State Prison, 96, 3205.
Agreements, 664 to 718.
Between counsel, 1415, 1416.
Alienation, Restraints upon, 1023, 328.5 to 3288.
Alimony, 97, 1052 to 1057.
Alleys, See WAYS.
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, 2242,
27272to 2729.
In Supreme Court, 139, 2776 to 2787.
In attachment cases, 266 to 270.
Of indictment, 915, 916.
Ofdeclaration, 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.
Argumentum ab inconvenienti, 3306.
Arrest, 207 to 209, 782, 898.
Assaults, 774 to 784, 799, 800.
Assessments, For municipal purposes, 628 to 630, 3123 to 8134.
Of damages, 2701 to 2708.




viii                  TABLE OF SUBJECTS.
Assignment, Ingeneral, 210, 211, 3210.
For benefit of creditors,.212 to 252.
Of demand in suit, 1333, 1383 to 1387, 2970.
Of mortgage, 2352 to 2359.
Of lease, 2212 to 2214,
Assignment of Errors, On certiorari, 533, 534.
In Supreme Court, 2788 to 2797.
Assistance, Writ of, 1525 to 1527.
Assumpsit, 45 to 76.
Attachment, 253 to 307, 543.
Attorney, Execution of deed by, 994, 995.
Attorneys and Counsellors, 308 to 321, 846.
Agreements between, 1415, 1416.
Producing authority, 2817.
Attornment, 682, 2215.
Authority, Execution of joint, 203, 204.
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, 322, 540.
In criminal, 939.
For costs before justice, 176, 3055.
For stay of execution, 2137, 2181, 2182.
Bailment, 323 to 328, 3206, 3230, 3231.
Carriers of Goods, 485 to 501.
Ballots, 1091 to 1098.
Bankruptcy, 329to 381,'2123.
Deed by assignee, 1021.
Fraudulent grantee becoming bankrupt, 1877.
Banks and Banking, 332 to 367.
Illegal, 887.
Assignment by bank for benefit of creditors, 215.
Bastardy, 368 to 372.
Bawdy house, 860 to 863.
Bbasts, Stray, 1634.Replevin for, 2940.
Fencing against, 1843 to 1849.
Betting:and gaming, 3217, 3218.
Bigamy, 857 to 859.
Bills of Exceptions, 1582, 1583, 1587, 2722 to 2726, 2734, 2811.
In criminal cases, 936 to 939.
Bills of Exchange and Promissory Notes, 373 to 428.
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, 2634, 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.




TABLE OF SUBJECTS.
Boat and Vessel Law, 434 to 449, 576.
Bona Fide Purchasers, 450 to 466, 219, 220, 1155, 1157.
Of mortgage, 1243.
Of negotiable paper, 383 to 389.
Plea of, 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, 2957 to 2960.
Books of account, 1828 to 1832.
Booming companies, 2236 to 2239.
Boundary, On navigable waters, 1015, 1016, 2413 to 2415.
Controlled by monuments, 1009.
Bounty, 474 to 481.
Breach of condition, 561 to 563, 3039 to 3041.
Breach of Promise to Marry, 482 to 484.
Bridges, Action for injury to, 26, 27.
Builder's lien, 2264 to 2267.
Burden of Proof, 581, 1838 to 1840.
To show fraud, 1864, 1883 to 1889.
As to title to land sold, 2196 to 2198.
To show malice, 784.
Burglary, 831, 832.
By-law of corporation, 727, 728.
Carriers of Goods, 485 to 501, 702, 1637.
Carriers of Persons, 502 to 508.
Case, Action on, 15 to 27.
Cases agreed upon, 2750'to 2752.
Cases made, 2732 to 2749.
Cases reserved, 2871 to 2879.
Cashier of Bank, Authority of, 332 to 338.
Cattle, Stray, 1634; Replevin for, 2940.
Fencing against, 1843 to 1849.
Certificate, Of marriage, 859.
Of justice, when evidence, 2159, 2160.
Certiorari, 509 to 539, 2121.
Challenge, To grand jurors, 908, 909.
To petit jurors, 923 to 927, 2647 to 2653.
Champerty, 313.
Chancery, See EQUITY.
Charge to jury, 1546 to 1548, 1552 to 1554, 2664 to 2666.
Charter, See CORPORATIONS, 719 to 749.
Chattel mortgage, 2281 to 2307, 1762, 2926.
Check, when not an Assignment, 211.
Child abandonment, 804 to 809.
Choses in Action, Transfer of when subject to equities, 383 to 390, 2357
to 2359.
See BONA FIDE PURCHASER.
Churches and Religious Societies, 2932.
Bequests to, 3298 to 3301.
Circuit Court Commissioners, 540 to 543.
Proceedings in equity before, 1442 to 1467.
B




x:                    TABLE O SUBJECTS
Circuit Courts, Practice in, 2625 to 2752.
Questions reserved by, 2871 to 2879.
Circuit Judges, 544.
City of Detroit, 1027 to 1046.
See DETROIT CITY.
Cloud upon title, 1163 to 1179.
Collateral security, 210, 391 to 395, 1958.
Collection, Guaranty of, 1958 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 Law, 552. 553.
Statutes changing, 8059, 8060.
Common Schools, 2963 to.2967.
Compensation, For lands taken for Public Use, 1103 to 1105, 3270 to
3273.
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 8042,
In insurance policy, 2054 to 2062.
Unauthorized in execution of a power, 2623, 2624.
Reliefagainst, 1184 to 1186.
Conditional Sale, 466.
Confession of Judgment, In Justices' Court, 2130, 2173 to 2180.
In Circuit Court, 2715 to 2717.
Conflict of Laws, 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, 2321 to
2323.
How averred in pleading, 2562 to 2565.
Failure of, 1229.
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 Law, 589 to 663, 3253, 3335, 3836.
As to Homestead, See HOMESTEAD.
Construction, of Contracts, 237, 238, 664 to 672, 1740, 3322 to 3328.
Of Deeds, 1006 to 1017, 3322 to 3328.
Of Statutes, 607, 610, 1915, 3048 to 3060.
Of Wills, 3282, 3291.




TABLE  OF SUBJECTS.                           xi
Constructive Notice, 450 to 457, 461, 2059, 2428, 2429.
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, 2192 to 2204,
See BAILMENT, CARRIERS OF GOODS, DAMAGES,- GUARANTY.
Contribution, 1228.
Conversion, 30, 31, 3143.
Conveyances, 1 to 14, 991 to 1026.
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, 362, 738 to 743.
Suit by foreign, 549.
Creditor's bill against stockholders, 1207 to 1210.
Costs, 750 to "752, 2730.
On arbitrations, 201, 202.
In equity, 1505 to 1513.
On certiorari, 538.
On mandamus, 2256.
In Supreme Court, 2814 to 2816.
Security for, 176, 3055.
Counsel, Right to, 934, 935.
Agreements between, 1420, 1421.
Privileged communications to, 321.
Counter affidavits, 2767, 2771.
Counterfeit money, 868 to 880.
Counties, 753 to 761.
Claims against, 645 to 647, 3163.
Officers of, 754 to 757, 762 to 767.
Organization of new, 433.
County canvassers, 1088 to 1090.
County Clerk, 92, 762.
County Courts, 763, 764,
County Treasurer, 765 to 767.
Courts of the United States, 768:to 771, 1982.
Covenant, 772, 773.
In deeds, 2198, 2972.
Credit, Representations as to, 1905.
Creditor's Bills, 1189 to 1210, 1238, 1295 to 1297, 1433, 2978.
Assignment under, 1853, 1854.
Criminal Law, 774 to 944.
Justices'jurisdiction, 944,2187, 2188.
Cross Bill, 1316 to 1322, 2002, 2003.
Cross Examination, 1677 to 1683.
Cul de Sac, 3257 to 8262.
Current Funds, 427.
Curtesy, 945.
Curtilage, 881, 1079.




xli                 TABLE OF SUBJECTS.
Custom and Usage, 326, 491, 546, 547, 1776, 3190.
Cy pres, 3289, 3290.
Damages, 946 to 989.
On writ of error, 2812, 2813.
In replevin, 2951 to 2953.
On replevin bond, 2960,
In trespass to lands, 3172.
Mitigation of, in Slander, 2987 to 2994.
Dams, Flowing Lands by, 18 to 21, 881 to 886. 3304.
Date, 678, 997, 3150,
Debtor and Creditor, Assignments for Benefit of Creditors, 212 to 258.
Frauds upon creditors, 1863 to 1894.
Avoiding fraudulent conveyance, 3178.
Ip prisonment for debt, 2035 to 2041.
See CREDITOR'S BILLS.
Deceased Persons, Estates of, 1590 to 1616.
Declaration, See PLEADINGS.
Declarations, Evidence of, 1699 to 1723, 1746 to 1748, 2833.
Decree in Chancery, 1486 to 1504.
Proof of, 1784.
Dedication, 990, 3154 to 3157, 3243 to 3256.
Deed, 991 to 1026, 1821 to 1823, 1775, 1805.
Of lands sold on execution, 2102, 2103.
By Land Board in Detroit, 1027, 19A2 to 1938.
Acknowledgment of, 1 to 14.
By married woman, 4 to 10, 2010, 2011, 2022.
By husband to wife, 2012.
On tax sales, 3112 to 3119.
Default, In Justices' Court, 2164.
Opening, in equity, 1436 to 1441.
Assessment of damages on, 2701 to 2708.
At hearing in Supreme Court, 2803.
Defeasance, 291, 2313 to 2318.
Defendant's Statement, 931 to 935.
Delivery, Of deed, 996 to 998, 696.
Ofgoods bought, 695, 3204 to 3206.
Of contract, 1773, 3207.
Of award, 199, 200.
Demand, To charge guarantor, 1948, 1949.
To charge indorser, 399 to 404.
Before bringing replevin, 2942.
Of deed under land contract, 3019 to 3021.
De miniinis lex non curat, 3337.
Demurrer, In Chancery, 1358 to 1365, 1403,
At law, 2589, 2590; 2642, 2643, 2714. 
Deposit in Court, 1422.
Depositions, Evidence by, 2684 to 2693.
Deputy County Clerk, 92, 762.
Deputy County Treasurer, 766,
Deputy Sheriff, 208,
Descent of Property, 1590 to 1616, 3313.
Description, Of property in Chattel Mortgage, 2292, 2293.
Of lands, 999, 1002 to 1005, 1008 to 1010, 1015 to 1017.
In tax proceedings, 3080 to 3083.
Detroit City, 1027 to 1046.
Metropolitan Police Act, 606, 631 to633, 640 to 642, 3073.
Paving streets, 629, 630.
Plan of, 1936, 3247, 3248.
Control of streets, 1035, 1937.




TABLE OF SUBJECTS.                         xiii
Liability in respect to sewers, 2397 to 2399, 2423 to 2427.
Assessments for improvements, 3123 to 3134.
Redemption from tax sales, 3140.
Detroit River, Boundary on, 2413, 2414.
Detroit Water Commissioners, 1044, 1045.
Detroit Young Men's Society, 723, 3084, 3085.
Devise, 3276 to 3301.
Discontinuance, As to part of defendants, 771, 2640, 2641.
Discounting Paper,343.
Discovery, 1131 to 1133, 1284,
Discretion, Judicial, 1539 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, 1782, 1787, 1798, 2154 to 2160.
Domicil, 1060.
Donatlo Causa Mortis, 1061, 1062.
Dower  1063 to 1073, 1619, 1622, 2029.
Acknowledgment requiredto bar dower, 5 to 8.
Draft for Military Duty, 1074.
Drainage Laws, 1075, 1076.
Due Process of Law, 616 to 625.
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, 2734, 2933, 2972.
Of offenses, 890, 919.
Elections, 1088to 1100.
Liability of Inspectors for refusing vote, 17,894.
Embezzlement, 819 to 830.
Eminent Domain, 1101 to 1107, 2270, 3253.
Distinguished from taxation, 3141.
Entrance Fee, 175,-1541.
Equitable Lien, 3213 to 3215.
Equities, When chose in-action subject to, 383 to 390, 2357 to 2359.
See BONA FInE PURCHASER.
Equity, 1108 to 1538, 350 to 360.
Appeals from 100 to 156.
Who seeks equity must do equity, 3310.
Equity of Redemption, See MORTGAG(E OF LANDS.
In chattels, 2305.
Error, 1539 to 1589.
Waiver of, 3224 to 3229, 3311.
Return to writ, 2764 to 2767.
Review on case made, 2743 to 2749.
Errors, Assignment of, 533, 534, 2788 to 2797.
Escrow, 996,




xiv                  TABLE OF SUBJECTS.
Estates of Deceased Persons, 1590 to 1616, 1892
Estoppel, 1617 to 1633, 1233, 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, 724, 729 to 732.
Privileged communications, 321.
To charge indorser, 397, 398, 417 to420.
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, 1582, 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, 1892.
Exemptions, Of personal property, 598, 2113 to 2117.
Of homestead, 1986 to 2009.
From taxation, 3084 to 3088.
Exoneration of Bail, 322.
Experts, 1724 to 1735.
Exposing Child, 804 to 809.
Fact and Law, Questions of, 334, 405, 1882, 1883, 2654 to 2663.
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 WIPE; MARRIED WOMAN.
Fences, 1843 to 1849, 2896 to 2898.
Ferries, License for, 1031, 1032.
Fictions of the Law, 3320.
Files Lost, 2637.
Finding of Facts, 2678 to 2683.
In ejectment, 1086.
By referee, 2698 to 2700.
Finders of Goods, 584, 1914.
Fine Moneys, 2123.
Fire, Insurance against, 2051 to 20 1.
Fire Limits, 1034.
Fixtures, 1850 to 1853.
Flowing Lands, Action for, 18 to 21.
Indictment for, 881 to 886.
Forcible Entry and Detainer, 2598 to 2618.




TABLE OF SUBJECTS.                            xv
Foreclosure of Mortgage, In equity, 1273 to 1282, 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, 3200.
Foreign Corporations, 549.
Foreign Interest, 570, 3199, 3200.
Foreign Judgments, 2139 to 2143.
Foreign Laws, Proof of, 1799 to 1803.
Foreign Moneys, 3190.
Foreign Offenses, 781, 810, 811, 895, 896.
Foreign Receivers, 1853, 1854.
Forfeitures, Of Corporate Franchise, 738 to 744, 2520 to 2524.
Of land contract, 2202. See SPECIFIC PERFORMANCE.
Enforcing in equity, 1187, 1188, 3042.
Forgery and Counterfeiting, 868 to 880.
Former Suit, 1855, 1858, 883, 1121 to 1128, 1225, 1226, 2568, 2569.
Franchise, See CORPORATIONS; FERRIES.
Frauds and Fraudulent Conveyances, 1859 to 1894, 464,
2040, 2100.
Fraudulent mortgage, 464, 2306, 2307.
Fraud in marriage, 1058, 1059.
Upon dower, 1069.
Fraudulent concealment of action, 1858.
Fraud in contracts generally, 556, 583, 690, 691.
In sale of lands by guardians, 1979.
In assignments, 223 to 247.
Relief against in equity, 1117, 1119, 1122, 1123 to 1152, 1211,
1212, 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, 2534.
Freight, Lien for, 495 to 497.
Recoupment of damages, 500, 501.
When earned, 2259, 2260.
Gaming, 3217, 3218.
Garnishees, 1915 to 1924, 2077.
Appeal in suits against, 160.
General Average, 2257, 2258.
General Banking Law, 344 to 347.
General Issue, 2572; Evidence under, 1819, 2573 to 2577.
General Railroad Law, 67, 68, 2896 to 2900.
Gift, 1925 to 1928; Causa Mortis, 1061, 1062.
Gold, Contracts for, 589, 590.
Goods, Shipment of. See CARRIERS OF GOODS.
Goods Sold and Delivered, 688 to 690, 2536.
Guaranty of Payment, 2540 to 2543.
Government Lands, 2862 to 2870.
Governor and Judges of Michigan  Territory, 1929 to
1938, 1775, 2621, 2622.
Record of Deeds, 2920.
Grand Jury, 612, 908 to 911.




xvi                  TABLE OF  SUBJECTS.
Grants, 1939 to 1944.
Of lands in trust, 252, 2623, 2624. See TRUsTs AND TRUSTEES.
By Governor and Judges, 1027, 1932 to 1938, 2621 to 26'24.
By treaty, 1940 to 1943. See TREATY.
Grist Mills, 2277 to 2280.
Guaranty, 1945 to 1962, 588, 1807, 1899, 1904.
That goods shall be accounted for, 2540 to 2543.
Guardian ad Litem, 1474,
Guardian and Ward, 1963 to 1981.
Habeas Corpus,' 1982 to 1985.
Hearsay, 1736 to 1739.
Highways, 3236 to 3275, 551, 648, 1035.
Appropriation for plank roads, 2507, 2508,
Certiorari in cases of, 521, 522, 529.
Hlloiestead, 1986 to 2009.
Homicide, 774 to 795, 78 to 86, 918, 1748.
House of Correction, 942.
Houses of Ill Fame, 860 to 863.
Hiusband and Wife, 2010 to 2034.
As witnesses, 1664, 1665.
Admissions by, 1715 to 1717.
Husband cannot sell dower, 3011.
Idem Sonans, 1093, 3321.
Identity, Of grantee, 1736, 1737.
Of suit, 1806.
Of lands, 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 3304.
Of government grant, 1166, 1767, 1768.
Imprisonment, For debt, 661, 662, 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, 628 to 630, 3123 to 3134.
Incest, 853 to 856.
Incumbrances, see MORTGAGE OF CHATTELS; MORTGAGE OF LANDS.
Covenant against, 2972.
Lien of mechanic, 2264 to 2267; of vendor and vendee, 3213
to 3215.
Indemnity, 710 to 714, 1293, 1294, 2327 to 2330, 2394a.
Right of officer to, 472, 473.
Independent Agreements, 701.
Indian Reservation, 1736, 1737.
Indian Treaty. 1736, 1737.
Indictment, 912 to 920.
And see CRIMINAL LAW.
Infant, 2042 to 2044.
Error in decree against, 151, 152, 1474.
Inferior Courts, 2125 to 2130, 2143.
Informations, 901 to 907.
And see CRIMINAL LAW.
Injunctions, 1107, 1134 to 1148, 1285, 1286, 1403 to 1414.
Against banks, 352 to 360.
To restrain foreign suit, 550.
Against municipal corporations, 2398,




TABLE OF SUBJECTS;                         xYii
Injunction Bond, 2045 to 2048.
Inland Navigation, 485.
Innkeeper, 2049, 2050.
Innocence, Presumption of, 3331.
Insanity, Proof of, 1730 to 1735, 8295.
Insolvency, Of corporations, 742, 743.
As ground of set. off, 1220, 1221.
Insolvent Laws, 592, 1840,
Inspectors of Elections, Liability of, 17, 1894.
Insurance against Fire, 2051 to 2071.
Intent, Criminal, 783, 801, 802, 806, 843 to 845, 873 to 875.
Interest, 2072 to 2074, 951.
Foreign, 570; Usurious, 3192 to 8200.
Interpreter, 11, 2686.
Intoxicating Drinks, 652 to 655, 2854 to 2860.
Irregularities, In attachment cases, 274 to 276.
In sale by guardian, 1977 to 1979.
Laches in taking advantage of, 1431 to 1433, 2712, 2755 to 2761.
Waiver of, 2762, 2763, 3225 to 3229.
What not regarded, 146 to 148, 1544 to 1552.
Jail Limits, Bond for, 988, 989.
Jettison, 2257, 2258.
Joinder of Actions, 77: In Equity, 1309 to 1314.
Joint and Several Demands, 43,144, 469.
Joint Debtors, 2075 to 2078, 618, 1917.
Joint Defendants, Discontinuance as to part, 2640, 2641, 771.
Joint Offenses, 856, 865 to 867, 891.
Joint Powers, 2623, 2624.
Joint Stock Companies, 2459 to 2461.
Joint Wrong Doers, 2092.
Judge of Probate, 2079 to 2082.
Judgment Creditor's Bill, 1189 to 1210, 1427, 1459, 1460, 1486, 2978.
Judgments and Executions, 2083 to 2124, 2714 to 2721.
In Criminal cases, 884 to 886, 940 to 944.
Relief against in Equity, 1121 to 1130.
Amendments of, 98, 99.
Setting aside, 274 to 276, 280, 281, 314, 1539.
Proof of, 1791 to 1798
On probate appeal,. 183.
Against surety on appeal from Justice, 177.
When surety bound by, 2047, 2048.
Foreign, 2139 to 2143.
In Justices' Courts, 2149, 2150, 2136, 2173 to 2180, 2181 to 2185..
Sale of corporate franchise, 2528 to 2530.
Conclusiveness of, 2122 to 2124, 2934, 3307,.526,
Judicial discretion, 1539 to 1543, 2247.
Judicial Immunity, 3334.
Judicial Notice, 1812 to 1818.
Judicial Power, 540 to 543, 663.
Judicial Presumptions, 1801 to 1818.
Jurat, 94, 95, 1369.
Jurisdiction, 2125 to 2147, 150, 168 to 170, 253 to 258, 465, 2437,
2438, 2753, 3308.
In criminal cases, 899, 900, 940 to 944.
In equity, 1117 to 1120, 1257, 1254, 1533 to 1536.
Inquiry into, See HABEAS CORPUS.
C




xviii                  TABLE OF StT3JEtOTS.
Jury, 2143, 2144.
Jury Trial, In Criminal Cases, 613, 614, 986, 987, 922 to 927.
In civil cases, 2644 to 2677.
Justices' Courts, 2145 to 2188.
Appeals from, 157 to 177.
Certiorari to, 529 to 539.
Commitment by, 899, 900, 944.
Garnishee proceedings, 1915 to 1924.
Rules as to jurisdiction, 2125 to 2129, 2145 to 2147.
Justices of the Peace, 651, 2189, 2190.
Justices of the Supreme Court, 2191.
Laches and Lapse of Time, 515, 516, 1128, 1431 to 1440, 1522 to 1524,
2104, 2118, 2119, 2712, 2755 to 2767.
Laches in performing land contract, 3005, 3006, 3015, 3016.
Lake Navigation, 485.
Lakes, Boundary on, 1016.
Land Board, 1775, 1929 to 1938, 2621, 2622, 2920.
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, 2207 to 2218.
Action for use ancld occupation, 69 to 72.
Lands and Land Titles, Jurisdiction of Equity, 1120, 1163 to 1179.
Larceny, 810 to 814.
Law and Fact, Questions of, 334, 405, 1882, 1883, 2654 to 2663.
When jury judges of the law, 2143.
Law of the Land, 616 to 625.
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 LANDILORD 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, 608, 609,
Judicial notice of journals, 1818.
Control of municipal corporations, 2400.
Levy, 2088, 2093, 2284 to 2287.
Lewd and Lascivious Cohabitation, 865 to 867.
Lex Loci, 569 to 576, 717.
Libel, 2219 to 2222.
Library Moneys, 2223.
License to Sell Lands, 1599 to 1610.
License to Sell Liquors, 653 to 655.
Licenses in Detroit, 1031 to 1033.
Lien, Of Mechanic, 2264 to 2267.
Of vendor, 1307, 1308, 3213, 3214.
Of vendee, 3215.
Of carrier, 495 to 497.
Equity cannot create, 1230.




TABLE OF SUBJECTS.                          xix
Limitation  of, Actions. 2224 to 2235, 635 to 638, 1156, 1211 to
1217, 2390, 2396.
Writs of error, 1580 to 1583.
Plea of statute of limitations, 2579.
Liquidated Damages, 954 to 960.
Liquors, Sale of, 617, 652 to 655, 2858 to 2860.
Log Driving and Booming Companies, 2236 to 2239.
Lost Files, 2637.
Lost Goods, 584, 1914.
Lost Instruments, Relief Upon, 471, 1227.
Machinery, When Fixturcs, 1850 to 1853.
Malice, 784 to 792.
Mandauin us, 2240 to 2256, 2802.
Manslaughter, 78 to 86, 774 to 782.
IManufacturer, Action by, where article ordered is not taken, 73, 74,
952.
Title to property being manufactured, 700.
Maritime Law, 2257 to 2263.
Marriage, Promise of, 482 to 484.
Proof of, 857 to 859.
Divorce, 1047 to 1059.
Married Woman, Acknowledgment of deed by, 4 to 10.
Witness in criminal case, 930.
Bill in equity by, 1366, 1368.
May be guardian of minor, 1970,1971, 1980.
See HUSBAND AND WIFE.
MIaster and Servant, Liability for Negligence, 24117 to 2427.
Hiring by the day, 693.
Master in Chancery, Proceedings Before, 1442 to 1467.
Mechanic's Lien, 2264 to 2267.
Mental Capacity, 1725, 1730 to 1735, 3205.
M\lerger, Of Mortgage, 1070 to 1072, 2350, 2351.
Of parol in written contracts, 673 to 676.
Of misdemeanor, 835.
Of demand in judgment, 2075, 2076.
Merits, Affidavit of; 1441, 2636.
Mlichigan Central Railroad  Comnpany,' 2268, 2269, 487 to
490, 494.
MichigaIn Southerin Railroad  Company, 2270 to 2276, 492,
493.
Millers and Mill Owners, 2277 to 2280.
Action for flowing lands, 18 to 21.
Indictment, 881 to 886, 3304.
Military Draft, 1074.
MIingling Poison with Food, &c., 801 to 803.
Mining Companies, 66.
Ministerial Officer, Protection by Process, 2433 to 2238, 2852.
Misjoinder, Of complainants, 1272, 1314.
Of defendants, 1275 to 1279, 1267.
Misnomer, 737, 2945.
Mistake, Relief Against in Equity, 1153 to 1159.
In acknowledgment of deed, 2,
In deed, 1002, 1003, 1005, 2922 to 2924.
In award, 205, 206.
In military draft, 1074.
In statute, 737.
In printing statute, 3063.




XX                   TABLE OF SUBJECTS.
Of law, 674, 675.
In legal proceedings, 13,52, 2086, 2088.
In elections, See ELECTIONS.
Moderator of School District, 15.
Money had received, 54 to 63.
Xoneys, Foreign, 3190,
Interest upon, 2072 to 2074, 3029.
Usury, 3192 to 3200.
What an officer may receive, 2190.
Mortgage of Chattels, 2281 to 2307, 574, 575, 3153.
Fixtures, 1850 to 1852.
Mortgage of Corporate Franchise, 733, 2517 to 2519.
Mortgage of Lands, 2308 to 2396, 3329.
Dower in mortgaged lands, 1070 to 1072.
Waste after foreclosure, 25.
Ejectment under, 1081.
Affecting Fixtures, 1850 to 1852.
Purchase subject to, 3212.
Multifariousness, 1309 to 1344.
Municipal Corporations, 2397 to 2402; Suits Against, 656, 2402.
Detroit city, 1027 to 1046.
Municipal taxation, 632.
Assessments Zor improvements, 3123 to 3134.
Murder, 774 to 795, 918, 1748.
Name, 737, 1091 to1093, 1247, 2474, 2945.
Navigable Waters, 2404, 2415.
Action for obstructing, 22, 23.
Necessaries, 2043.
Ne Exeat, 1388.
Negligence, 2416 to 2427.
Negotiable Paper, 1924, 1962.
See BILLS OF EXCHANGE AND PRoMISSORY NOTES.
New Promise, 2225 to 2228.
New Trial, 1235, 1236,1540, 1588.
On quo warranto, 2894, 2895.
Next Friend, 1636 to 1638, 2630.
Next of Kin, 1590, 1616.
Non-Imprisonment Act, 895.
Non-Joinder, 1206, 2570, 2571.
Non-Resident Debtors, See ATTACHMENT.
Non-Resident Defendants, 1528 to 1536.
Non-Suit, 2667.
Notaries Public, 663.
Notice, 2428, 2429, 1250, See RECORDING LAWS.
Of protest, 405 to 420.
Of defense, 2583 to 2588.
Of hearing and motions, 2770, 2798 to 2800.
To quit, 2201, 2216, 2217, 2600,
Of tax sales, 3101, 3102.
In attachmlent cases, 271 to 273.
Of trial in appeal cases, 173, 174.
To terminate contract, 718.
Of proceedings in equity, 1418 to 1421, 1430.
Of equities by purchaser, 450 to 466.
To guarantor, 1948 to 1950.
Of sales on execution, 2089, 2098.
Of legal proceedings essential to jurisdiction, 2132, 8335.




TABLE OF SUBJECTS.                         xxi
Of chattel mortgage, 2294 to 2300.
Through title deeds, 2429, 3211.
Of judgment in Circuit Courts, 2720, 2721.
Novation, 2430.
Nudumn Pactum, 3315.
Nuisance,  881 to 886, 2397, 2431, 2432.
In street, 3242.
Enjoining, 1140 to 1143.
Oath, See AFFIDAVIT.
Official, of Sheriff, 2975.
Objection to Evidence, 1669 to 1673,
Obscene Publications, 864.
Obstructing Navigable Waters, 22, 23.
Obstructing Streets, 3242,3257 to 3263.
Occupancy essential to Homestead, 1994 to 1997.
Occupying Claimants, 1083'to 1087.
Offlcer, 2433 to 2443; De Facto, 726, 757, 2443.
Arrest by, 782, 898.
Nonfeasance, 17, 894, 897.
Injunction against, 1134 to 1139,
Return to execution, 1192 to 1196, 2440.
Protection by process, 2433 to 2438, 2852.
Restrictive appointment, 1042, 2081.
See Quo WARRANTO.
Omnia Rite Acta, 3309.
Ontonagon, 2864 to 2870.
Opinions of Witnesses, 1724 to 1735.
Ordinance of 17S7, 2444 to 2450.
Parol Agreements, 1899 to 1914.
Merged in written, 673 to 676.
Parol Evidence, 1761 to 1782, 1935.
Parties to Suits, At Law, 39 to 44.
In Chancery, 1255 to 1282.
As witnesses, 1637 to 1654.
In specific performance, 3030, 3031.
Partnerships, 2473 to 2476.
Partition, 1180 to 1183, 1298, 1299, 1533.
Partnership, 2451 to 2488.
Submission to arbitration by one, 187, 188.
Assignment by, 212; Offense by, 891.
Lands owned by, 1026, 2471, 2472.
Admissions by partners, 1720.
Insurance by one, 2063 to 2066.
Passengers, Carriers of, 502 to 508.
Passing Counterfeit Money, 868 to 880.
Patent for Lands, 1166, 1767,1768, 1941 to 1944, 2920.
Payment, 2489 to 2505, 698, 699, 2301 to 2303.
To officer, 2190.
Conditional, 391 to 395, 428.
Of mortgage, 2390 to 2396.
Reviving debt by, 2228 to 2230.
Peace, Bills of, 1163 to 1179.
Penalty, Distinguished from Liquidated Damages, 954 to 960.
Jurisdiction of equity as to, 1184 to 1188.
Perjury, 847 to 850.
Charge of, 2222, 2986, 2991,
performance, Specific, 2995 to 3032.




xxii                 TABLE OF SUBJECTS.
Physician, 2506.
Plank Road Companies, 2507 to 2530, 3274.
Suit for subscriptions to stock, 64, 65,
Pleadings, 2531 to 2591.
In Justices' Courts, 2151 to 2153.
On probate appeal, 181, 182.
Bankruptcy, puis darrien, 331.
Under Boat and Vessel Law, 440 to 447.
Allegation of damages, 970, 9i73, 988, 989.
Plea in Equity, 1323 to 1335, 1400 to 1402.
Pleadings in Equity, 1237 to 1365.
Poison, Miningling with Food, &c,, 801 to 803.
Police Court of Detroit, 2592, 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, 2594 to 2596.
Proceedings to recover, 2598 to 2618, 542.
Injunction will not disturb, 1146, 1147, 2597.
Powers, 2619 to 2624, 3291.
Of attorney, 994, 995.
Practice in Chancery, 1366 to 1538.
Practice in Circuit Courts, 2625 to 2752.
Removal of suits to U. S. Courts, 771.
See  ATTACHMENT, CERTIORAtRI, ERROR, QUESTIONS RESEIRVED, REPLEVIN.
Practice in Criminal Cases, See CRIMINAL LAW.
Practice in Special Cases; Attachment, 253 to 307.
Mandamus, 2252 to 2256.
Quo Warranto, 2880 to 2895.'orcible entry andcl detainer, 2594 to 2618.
Replevin, 2935 to 2960.
Practice in Supreme Court, 2753 to 2817.
See APPEAL FROM CHANCERY, CERTIORARI, ERROR, MANDAMIUS, QUESTIONS RESERVED, QUO WARRANTO.
Pre-emlption, 2862, 2864 to 2870.
Presumptions, 1026, 1046, 1801 to 1818.
Of payment, 2396, 2497, 2498.
Principal and Accessory, 920.
Principal and Agent, 2818 to 2833, 3316 to 3318.
Suit on contract made with agent, 2547.
See AGENT.
Principal and Surety, 2834, 2844.
Discharge of surety by giving time to principal, 1951.
Privileged Communications, 321.
Probate Courts, 2845 to 2851.
Appeals fiom, 178 to 183.
Assignment of dower in, 1073.
Probate of Will, 3292 to 3297.
Probate Sales, 1599 to 1610, 1975 to 1980.
Process, From U. S Courts, 78, 768, 769.
In Circuit Courts, 2625 to 2629.
Style of, 657, 2796.
In Justices' Courts, 2161, 2162, 2171, 2172.
Protection by, 2433 to 2438, 2852.




TABLE   OP SUBJECTS.                         xxiii
Prochien Ami, 1366, 1367, 2630.
Profert, 2551.
Profits Lost, Recoverable as Damages, 966,, 967.
Prohibition, Writ of, 2853.
Prohibitory Liquor Laws, 608, 609, 617, 652 to 655, 1711, 2854
to 2860.
Promise to Marry, 482 to 484.
Promissory Notes, See BILts oF EXCITANGoE AND PROMISSORY NOTES,
373 to 478.
Prosecuting Attorney, 2861,
Protest, Notice of, 405 to 420,
Public Grounds, 3154 to 3157.
Public Lands, 2862 to 2870, 1767, 1768, 1775,
State Lands, 3043 to 3046,
Public Sewers, 2399, 2423 to 2427,
Public Trust, See POWEtRS, 2619 to 2624.
Public Use, See EMHINENT DOM3AIN.
Purchasers, Bona Fide, 450 to 466.
Quantum Meruit, 49 to 53.
~nuestions Reserved, 2871 to 2879.
Quieting Title, 1163 to 1179..Quo Warranto, 2880 to 2895.
Against banks, 361, 362.
Railroad  Corporations, 28(6 to 2901.
Banking by, 722.
Fencing track, 1848, 1849.
Rape, 796 to 800,
Ratification, 736, 1913, 1938, 2831 to 2833, 3318,
Of contract by infant, 2044.
By partnership, 2460, 2461, 2465, 2466.
Reasonable Regulation, 503 to 506.
Reasonable Time, 386 to 388, 401 to 404, 3153.
Receiver, Foreign, 1853, 1854.
In Chancery, 1423 to 1434.
Of stolen goods, 815 to 818.
Recitals, 1827, 1823, 1701, 1702, 1704.!Reeognizanece, 2902 to 2911.
Discharge of by arrest, 208.
On appeal from Justices' Courts, 166, 167, 177.
Recorder's Court of Detroit, 937.
Recording Laws, 2912 to 2928.
Foreign, 573 to 575.
Proof of records, 1785, 1786, 1789.
Notice to purchaser of equities, 4.50 to 461.
Chattel mlortgagers, 2294 to 28300, 2926.
Records, Proof of, 1783 to 1800.
Contradicting, 1778 to 1782.
Recoupmrent, 2929 to 2931, 53.
For danmages by carriers, 500, 501.
Redemption, From execution sales, 2109 to 2112.
Froim mortgages, 601, 1300 to 1306, 2383 to 2390.
By banks, 363 to 367.
By guardian of milnor, 1982.
From chattel mortgage, 2305,
Referees, Trials before, 2698 to 2700.
Reform School, 940, 941,




xxiv                  TABLE OF SUBJECTS.
Regents of the University, 3185 to 3189.
Rehearing, 1514.
Religious belief of witness, 615.
Religious Societies, 2932.
Bequests to, 3298 to 3301.
Remedy, 2933, 2934.
Election of, 1115, 1116, 2734, 2933, 2972.
Removal of County Seat, 761.
Rents, When payable, 2218.
Repeal of Statutes, 3067 to 3074.
Replevin, 2935 to 2960.
Replevin Bond, 43, 44, 772, 2957 to 2960.
Roplication, In Chancery, 1438.
At law, 2591.
Reputation, When evidence, 1736 to 1739.
Impeachment by, 1686 to 1689.
Rescinding Contracts, 692.
Reservation, Of lands by treaty, 1940 to 1943.
Of questions for Supreme Court, 2871 to 2879.
Res gestae, 676, 787 to 792, 817, 818, 1740 to 1751.
Res inter alios, 2206, 3305..Res Judicata, 2961, 3307.
Respondeat Superior, 2417 to 2427, 3317.
Restraints upon alienation, 1023, 3285 to 3288.
Retrospective Laws, 594, 616, 1024, 1025, 1062, 3062.
Revised Statutes of 1S46, 2962.
Revivor of Suits, In equity, 1386, 1387.
At law, 2731.
Riot, Homicide in preventing, 780.
Riparian Rights, See NAVIGABLE WATERS; WATER RIGHTS.
Rivers, As public highways, 2404 to 2415.
Boundary on, 2413.
Use of water, 2414.
Roads, See WAYS, 3236 to 3275.
Road Funds, 3275.
Rule in Shelly's case, 3284.
Sale, Of corporate franchise, 2528 to 2530.
Of lands of minors, 1975 to 1980.
Of lands by executors, &c., 1599 to 1610.
For taxes, 3103 to 3111.
By land contract, See LAND CONTRACT; SPECIFIC PERFORMANCE.
On execution, 2090 to 2108.
Under decree in Chancery, 1518 to 1524.
See VENDOR AND PURCHASER.
Sanity, Evidence as to, 1725 to 1785, 3295.
Satistaction, Of judgment, 2092, 20983.
Of mortgage, 2391 to 2396.
School Lands, 8043.
Schools and School Districts, 2963 to 2967, 15.
Scienter, 1895.
Seal, Imports consideration, 578.
Of corporation, 1824.
To contracts, 679.
Secondary Evidence, 1832 to 1837, 3333.
Security for Costs, 176, 2167, 3055.
Seduction, 581, 582.




TABLE OF SUBJECTS.                          xxv
Seizin, Proof of, 20, 21.
Self-defense, 774 to 779, 782.
~Sentence, 940 to 944.,Set Off, 2968 to 2972.
In equity, 1218 to 1226, 3188.
4Settlement, Of accounts, 1809.
Of exceptions, 2725, 2726.
Of cases made, 2735 to 2737.
Sewers, Liability for defects, 2399, 2423, 2427.
Shelly's case, 3284.
Sheriff, 2973 to 2978, 208.
Assignment of attachmlent bond, 306, 307.
Amendment of return, 270.
Signature, 171.
To written instruments, admission of, 423 to 426, 2695, 2696.
Slander, 2979 to 2994.
Special Verdict, 2668 to 2670.
Specific Performance, 2995 to 3032.
Specific Taxes, 767, 3121, 3122.
On Mich. Southern R, R. Co., 2271 to 2276.
Spirituous Liquors, 608, 609, 617, 652 to 655, 1711, 2854 to 2860.
Stamps, 3033, 3034, 593, 594.
Stare Decisis, 3035, 3036.
State Insolvent Laws, 592.
State Lands, 3043 to 3046.
State of Michigan, 2448; 2449, 3037 to 3042.
State Prisol, 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, 1251, 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, 2534.
See SPECIFIC PERFORMANCE,
Statute of Limitations, 2224 to 2235.
And see LIMITATION OF ACTIONS..'tay of Execution, 2084, 2137, 2181, 2182.
Appeal after stay, 159,
Stipulated Damages, 954 to 960, 3022.
St. Mary's Falls Ship Canal Co., 634.
Stray Beasts, 1634.
Streets, See WAYS, 3236 to 3275.
~Sub-letting, 2212 to 2214..Subpcena in Chancery, 1388 to 1401..Subrogation, 3184.
Subscribing Witness, 1834, 3296.
Subscriptions for public purposes, 585, 715, 716..Summary proceedings to recover lands, 2594 to 2618.,Summons, From Justice, service of, 2162, 2163.
In Chancery, 1443 to 1450.




xxvi                 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, 64.5 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, 2532, 2549, 2550.
Surrender, Of lease, 2215.
Survey for road, 1783.
Survivorship of actions, 42.
Sw&mp 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 1188.
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.
Title, By judgment, 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.                        xxvii
In criminal cases, 922 to 935.
Before Justices, see JUSTICES' COURTS.
Trover, 28 to 33, 978 to 983, 1836.
Trusts and Trustees, 3173 to 3184, 1160 to 1162, 2096, 2097, 2310,
2311, 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.
Uinder Sheriff, 2974.
United States Courts, 768 to 771; Criminal Jurisdiction, 78 to 86.
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, 1030.
Value, Fraud in regard to, 1896 to 1898.
Variance, 2555 to 2561, 2694, 3201, 3202.
Vendor and Purchaser, 3203 to 3216, 1899, 1906 to 1908.
See CONTRACTS; DAMAGES.
Vendor's Lien, 1307, 1308, 3213, 3214.
Venue, 22, 829, 1082.
Verdict, 2668 to 2677,
Defects cured by, 2564, 2565,
Impeaching witness by, 3302, 3303.
Vested Rights, 474, 594, 616, 1062.
Void and Voidable, see JURISDICTION.
Void contracts, 87 to 90, 239 to 241, 1884 to 1889, 1912, 2001 to,
2004.
Voidable contracts, 1862, 1863.
Void sale by Sheriff, 2977.
Voluntary Conveyance, 1865, 1870, 3210.
Votes, See ELECTIONS.
Wager, 3217, 3218,
Waiver, 2452, 2611, 2646, 2648, 3219 to 3229.
Oflaches under land contract, 3005, 3006.
Of notice by indorser, 419, 420.
Of forfeiture of corporate franchise, 740 to 742.
Of right to jury trial, 613.
Of errors, 1560, 1561, 3224 to 3229.
Of homestead right, 1998 to 2000.
Of jurisdictional defects, 2133 to 2135, 168 to 170.
Warehousemen, 3230, 3231, 323 to 328, 492 to 497.
Warrant 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.




xxviii                TABLE OF SUBJECTS.
Ways, 3236 to 3275, 551, 648, 1035.
Certiorari in cases of, 521, 522, 529.
~Will, 3276 to 3301, 1741 to 1745.
Witness, 3302 to 3304.
Action against, 16, 984.
Contempts by, 548.
Religious belief of, 615.
To deed, 991, 992.
Privilege of, 929, 1553.
Work and Labor, 49 to 53.
Writ of Assistance, 1525 to 1527.
Writ of Error, 1567 to 1581.
Return to, 2764 to 2766.
Written Instrument, Alteration of, 466.
Admission of in suit, 423 to 426, 2695, 2696.




D I GOF E S T
OF THE
MICHIGAN REPORTS.
ACKNOWLEDGMENT OPF DEE DSE
a, No part of the deed. The. acknowledgment of an assignment of a mortgage is no part of the. assignment itselC Livingston v,
Jones, Har. Ch., 165. See Doiegkr/ty & Randcall;  Mich., 581.
2. Clerical error in. The certificatu of acknowledgment attached to a deed recited that the grantors came before theofficer; and
acknowledged that they had' executed "the fbregoing mortgage." Held
to be evidently a clerical error; which did: not vItiate. Ives v. Kim-tI,
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 t:heagreement, that such party
appeared before hiln by such agent, for that purpose duly- appointed,
and acknowledged the same, is- su.ffit~ient 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. Mafyor,. &c.., of Detoitv..JaCeksob, 1 Doug., 106.
4. By married woman. The acknowledgment of the deed of
a married woman is an essential part- of the conveyance; without w~hich
it would be of no force., And to, give the deed validity, the acknowledgment must be in compliance with the statute.  o/oey v. Campau, 4
Mich., 565. [The deed in question, was executed prior to the statute of
1855, Comp..L., p. 966;]
-f.




~ 13        ACKNOWLEDGMENT OF DEEDS.
5. The act of 1840 (S. L., p. 167) provided that rights of dower should
not be conveyed, unless by 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. Barstow 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 elcd that a certificate that she " stated " she
had executed, &c., was insufficient. Dewey v. Campan, 4 Mich., 565.
S. The certificate is also void unless it show that the acknowledgment was taken "separately" as well as " apart " from the husband.
Ibid.
9. Under the act of 1855, (Comp. L., p. 966) a wife can make a mortgage of her own estate in the same manner and with the like effect as it
unmarried. And an acknowledgment apart fromn the husband is not
now requisite where a married woman conveys or incumbers her own
estate. Watson v. Thurber, 11 Mich., 457.
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. Held, that the defense was not made out
by the evidence. Ibid.
11. Through interpreter.  There being no statute authorizing 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 v. Campau, 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. Har'rington v. Fish, 10 Mich., 415.
13. A deed was executed and acknowledged in another State, conveying 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.  bid.
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.
Groesbeck v. Sedey, 13 Mich., 329.
ACTION.
1. ON THrE CASE.
15. Against school 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. Wall v. Eastman, 1 Mich., 268.
16. Against witness. 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 disobeying 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 improperly refusing a vote because the person offering it was partly of African
descent. Gordon v. Famrrar, 2 Doug., 411.
18. Flowing 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.
Caldwell 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.
3




~ 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. Lull v. Davis, 1 Mich., 77.
21. Suit for flowing land, the declaration alleging seizen and possession 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 tracf was flowed by defendant. Held, 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 sustain 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.
Millerd v. Reeves, 1 Mich., 107.
22. Obstructing navigable waters. An action for obstructing a navigable stream, though local at the common law, is transitory
by statute. Comp. L., ~ 4344. Barnard 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. Larkin v. Saginaw 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 the 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, 2 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 Commissioners v. Stockman, 5 Mich., 528.
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.
Ibid.
2. TROVER.
2S. Trover may be brought by one having the possession of personal
property, and a mere stranger cannot question his right. Cullen v.
O'Hara, 4 Mich., 132.
29. In cases where 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 v. Mann, 3 Mich., 139. See Fiquet v. Allison, 12 Mich., 328.
31. B., who was entitled to the possession of a certain chattel, replevied 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 full 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. Held, 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 for its temporary detention, 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. Right 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. TRESPASS.
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.
LaRue, 9 Mich., 158.
5




~ 44                       ACTION.
36. False imprisonment. If one is arrested on a void execution, 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. Fuller v. Bowker, 11
Mich., 204.
4. -ON CONTRACT: GENERAL RULES.
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. Chandler, 3 Mich., 531.
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 fraudulent 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 between whom the contract was made. Litcfield v. Garbratt, 10 Mich.,
426. See Township of LaGfrange v. Chapman, 11 Mich., 499; Gilbert v.
Hanford, 13 Mich., 40.
40. Suit for use of another. 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. Farwell v. Dewey, 12 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 supported 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. Litchfield v. Garratt, 10 Mich., 426.
42. Survivorship. A debt due to two or more jointly, after the
death of one must be sued in the name of the survivor. Teller v. Wetherell, 9 Mich., 464; Cote v. Dequindre, Wal. Ch., 64.
43. A joint and several demand cannot be treated as the joint
obligation of less than all the debtors. Winslow v. Herrick, 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. Ibid.
6




ACTION.                        ~ 50
5. ASSUMrsIT.
45. The general nature of this action considered. Ward~ v. Warner,
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 permitted 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
all right to compensation, and the assertion of an adverse right in themselves. 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 dcleclaration 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. (MANNING, J.)  Welchi v. Bagg, 12 Mich., 41.
4S. 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 v. Alli8on, 12 Mich.,
328.
49. Quantum  nmeruit. Where a party fails to comply substantially with an agreement, he cannot sue or recover upon the agreement
at all, unless it is apportionable. But where any thing has been done
under such agreement, from which the other party has received substantial benefit, and which he'has appropriated, a recovery based upon
that benefit may be had on a quantum meruit. The basis of that recovery is not the original contract, but a new implied agreement deducible
from the delivery and acceptance of some valuable service or thing.
Allen v. MclZKibbin, 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 sustained 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-perforinance of the special contract, which do not enter into the contract
price, defendant may recoup them when sued upon a quantum meruit.
bid.
54. Money  had and received. An action will lie where
defendant has in his possession money which in eq uity 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 parties. Beardslee v. Horton, 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. Mandlebaurm, 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, it 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. Beardskee v. Horton, 3
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 amolint 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
v. Derby, 7 Mich., 325.
59. And it does not vary the case that plaintiffs, on receiving the
draft, advanced to the holder a part of the amount, and gave him a
8




ACTION.                        ~ 67
certificate agreeing to account for the proceeds, and that defendant
bought 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. Ibid.
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 consideration. Ibid.
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. Welch v. Fr'ost, 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. Heald 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. Catlin 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 32d 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 imported a promise to pay the amount subscribed. Dexter and Mason Plank
Road Co. v. Millerd, 3 Mich. 91.
65. The notice which the directors give under said 32d 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 stockholder 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. Crfson v. Arctic Mining Co., 5 Mich., 288.
67. A railroad company was formed under the General Railroad 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 which defendant subscribed a sum which he subsequently
on several occasions promised to pay. Held that the subscription was
not binding. Shurtz. Schoolcraft and Three Rivers R. B. Co., 9 Mich.,
269.
68. The commissioners act as a statutory board, and are alone authorized to receive subscriptions. They are not required to recognize or
protect any subscriptions not under their own auspices, and such subscriptions cannot prevent other persons taking the entire amount of
stock not subscribed by the articles of association, whenever the commissioners shall open books. There is, therefore, no consideration for
any other subscriptions. Ibid.
69. For use and occupation an action will lie at the common law. Dwsight 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 a
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 effect. It was held that defendant was not liable for
use and occupation while the negotiations were pending. Ibid,
72. But held further, that if he remained in possession after all negotiation had ceased, and after being notified that he must pay rent if he
did so, he would be liable. Ibid.
73. Action by manufacturer-order countermanded.
Where an article was ordered of a manufacturer at a specified price,
and work was dclone and materials used 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. Hosmer v. Wilson, 7 Mich.; 294.
74. The manufacturer, in such case, is not compelled after the countermand 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 indebtedness, or to give the items constituting the account. It is sufficient to
-Q




ADMIRALTY COURTS AND JURISDICTION.    ~ 83
prove some existing antecedent debt or demand between the parties,
respecting which a balance was struck. Stevens v. Tudler, 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. JOINDER OF ACTIONS.
77. An action founded upon a statute cannot be joined with one
common law. People v. Judges of Washtenaw Circuit Court, 1 Doug., 434.
ADMIRALTY COURTS AND JURISDICTION.
7S. Process. In the absence of a treaty with Great Britain authorizing it, the process of the District Courts of the United States sitting
in admiralty cannot be executed in Canadian waters. Tyler v. People,
8 Mich., 320.
79. Crime on high seas. 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 offense committed on board of
it is an offense committed against the sovereignty of that nation. People v. Tyler, 7 Mich.,, 161.
SO. On foreign waters. But when a private ship enters a
foreign jurisdiction, it becomes, with all on board, in the absence of
treaty stipulations to the contrary, subject to the municipal laws and
control of the country it visits. Ibid.
S1. Crimes act of Congress of 1S57. It does not necessarily 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 particular State, and as upon the Pacific coast there are still 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. Ibid.
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 its territorial limits;
and the exceptions to this rule are never understood to be included in
the general provisions of criminal statutes, but require to be specifically
mentioned and defined. Ibld.
84. The treaty between the United States and Great Britain of 1842,
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 limits. Ibid.
85. 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 assaults 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 CHRISTIANCY and MANNINGI, 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.
Godfroy v. Disbrow, Wal. Ch., 260.
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.
Wiliams, 1 Doug. 546.
89. A  mortgage, where the land is possessed adversely to the
mortgagor, is also void at the common law. Hubbard v. Smith, 2 Mich.,
207.
90. But by statute it is now provided that "No grant or conveyance 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. ~ 2726.
12




ALIMONY.                         ~ 98
AFFIDAVIT.
91. Is a nullity if sworn to before a person not authorized to
administer oaths. Greenvault v. Farmers 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. Ibid. But the,
power is now conferred upon them. Comp. L., ~ 4337. And since 1850
is possessed by their deputies. Comp., ~ 404; Dorr v. Clark, 7 Mich.,
310.
93. Not 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 severally. Whipple v. Williams, 1 Mich., 115. Where there are several
parties it should be entitled in the names of all. Arnold v. Nye, 11
Mich., 456.
94. The jurat must show that the affidavit was sworn to before
the officer signing it. Where it stated that it was "sworn and subscribed," 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., 24.
AGENT OF STATE PRISON.
96. The Statute of 1842 (S. L., p. 130) required the agent of the
state prison to give notice in a newspaper for sealed proposals for letting 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.
Agent 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 DIVORCE.)
AMENDMENTS.
9S. 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 plaintiffs' attorney, judgment for plaintiffs 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
due by the condition of said bond at $800, the penalty thereof, to be
discharged on the payment of $624.11, with costs to be taxed." He also
offered in evidence the execution issued for the $800 debt, with indorsement 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
affirmed. The Circuit Court rejected this evidence. Held erroneous.
Emnory v. Wlitwell, 6 Mich., 474.
99. See the general ~ubject of amendments considered in this case;
the conclusions being substantially the following:
That where the files 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 amendments 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 transcript 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 COuRTS AND
PRACTICE.
APPEAL FROM CHANCERY.
100. The right 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. Lyon, Wal. Ch., 77.
14




APPEAL FROM  CHANCERY.                    ~ 111
101. Restrictions.  Whether there be any, and if so what,
restrictions upon the right to appeal, where default was made in the
Court below, qieere. Stevens v. b'oiwnsend, 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. Ibid.
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 stipulation 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. 880, X 127) was not
mandatory, but merely authorized 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.
Ibid. (For a similar provision —never acted upon-see Comp. L.,
~3602.)
105. What is a final decree or order.  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,
was held to be a final order, from which an appeal would lie to the
Supreme Court. Benedict v. Thornkpson, 2 Doug., 299.
106. The decree directing such appraisal might also have been appealed from; it being a final decree within the statute. Ibid.
107. An order denying a writ of assistance to the purchaser in a
foreclosure suit may be appealed from. Baker v. Pierson, 5 Mich., 456.
10o. An order striking a bill from the files is also a final order from
which an appeal lies. Webster v. Hitchcock, 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. Shaw v. Scawzo, 9 Mich.,
164.
110. An appeal will lie from an order setting aside a sale in a foreclosure suit after confirmation of the report of sale; it being final as to
the purchaser. BullaCrd v. Green, 9 Mich., 222.
111. It will lie also from an order adjudging a party guilty of a con15




~ 123            APPEAL FROM CHANCERY.
tempt in violating an injunction, and awarding a sum of money to the
opposite party to indemnify him for the violation. People v. Simonson,
9 Mich., 492.
112. An order refusing to set aside a decree for irregularity is a final
order, and may be appealed from. Michtigan nsurance Co. v. Whittemore,
12 Mich., 311.
113. What is not a final decree or order.  An order
setting aside a final decree, taken pro confesso in a foreclosure suit, and
permitting a defendant to defend, unless the complainant should elect to
assign to him the decree for a sum namedin the order, is not a decree, or
finl order, which can be appealed from. Prentis v. Rice, 2 Doug., 296.
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, 2 Doug., 288.
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. Romeyn 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.
Caswdl v. Comstock, 6 Mich., 391.
117. Nor a decree which consists in part of a reference to a commissioner to take an account between the parties. Enos v. Sutherland, 9
Mich., 148.
18S. Nor a decretral order allowing a general demurrer to a bill in
Chancery, 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. Nichols, 12
Mich., 22.
120. Nor an order opening for review a decree for permanent alimony 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., 425.
121. A written claim  of appeal is not necessary to be filed.
Warner v. Whittaker, 5 Mich., 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. Emerson v. Atwater, 5 Mich., 34.
123. It is no objection that the bond is approved and filed before the
claim of appeal. Ibid.
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 vi. Whittaker, 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 substance;" will be held an approval both of the sureties and of the penal
sum; and is sufficient. Maynard v. Hoslkins, 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. Lit7efeldd, 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,
afterdecree for the complainant in a foreclosure suit, one of the defendants, not personally liable on the decree, appealed therefrom, and the,decree was affirmed by the Supreme Court, it was held that the appellant swas not liable for the amount of deficiency after sale had been
-made on the decree. Kephart v. Farmers and Mechanics' Bank, 4 Mich.,
$02.
12S. 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.
Moore v. Olin, 6 Mich., 328.
129. The bond should have at least two sureties; but if defective
in this or any other respect, the Supreme Court, if motion to dismiss is
made for this cause, may allow a new bond to be filed. (Comp. L.,
~4543.) Beebee v. Young, 13 Mich., 221.
130. When appeal to be taken.  Where the last of the
forty days in which an appeal is allowed to be taken is Sunday, the appeal cannot be taken on the following Monday. Drake v. Andrewzs, 2
Mich., 203.
131. If taken within forty days from the time the.Aecree 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. Sellers v. Botsford, 9 Mich., 490.
132. Mlotions to  dismiss must be made at the earliest opportunity. Warner v. W7ittakr, 5 Mich., 241.
133. On motion to dismiss for want of a sufficient bpnd, affidavits
will not be received to enlarge or restrict the officer's certificate of ap
proval. Maynard v. Hoskins, 8 Mich., 260.
134. The Court will not dismiss an appeal for a failure of the regis2                                      17




~ 144            APPEAL FROMI CHANCERY.
ter to make a full return; but a further return will be ordered.  Maynard v. 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. Garrcttt v. Litchfield, 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. Young, 13 Mich., 221.
137. 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. Garratt v. Litchfiild, 10 Mich., 451.
138. The appeal will not be dismissed on the ground that the order
appealed from was a matter of discretion in the Court below. Michigan
Irnurance Co.. v. Whittemore, 12 Mich., 311.
139. Amendment' of recorEd.  The Supreme Court has no'power to allow the appellant to supply, by a sworn copy, a paper discovered, after the appeal, 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 effect to the appeal.
Sears v. Schwcarz, 1 Doug., 504. On the subject of amending records
after the cause is removed to a Court of review, see O'Flynn v.. HIolmee:,
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. Du)~dley, 8
Mich., 115.
1411. What to be reviewred.  Where appeal is taken fronm
a final decree all previous orders connected with the decree, and affecting 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 answered 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. Nichzols, 12 Mich., 22.
143. But where the appeal'is from a final orders, (as an order confirming 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. Thompson, 2 Doug., 299.
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 appearing 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 below. Bailey v. DeGraff, 2 Doug.; 169.
145. On the hearing it was claimed that certain evidence returned
as a part of the record should be 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 documents set out in the bill, 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. Michigcan 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 v. IcReynolds, 6 Mich., 70; carner v. Whittcqker, 6 Mich., 133;
Griggs v. Detroit and Milwaukee Rcailway Co., 10 Mich., 117; Michigan
Insurance Co. v. Whittemore, 12 Mich., 427.
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'Flynn, 5 Mich., 215.
14S. 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 will sustain injury therefrom; and if that application is denied, to appeal to
the Supreme Court thereafter. Kellogg v; Putnam, 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. Hurlbut v. Britain, 2 Doug., 191. But
if the pleadings are good in substance, all matters of mere form are to
be disregarded on the appeal. Dye v. Mann, 10 Mich., 291.
I5A0. Jurisdietional defects. A decree may be reversed on
appeal for jurisdictional defects, notwithstanding they are not pointed
out on the argument. Smith v. Smith, 13 Mich., 258.
151. Errors affecting infants. Where errors were committed affecting 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 Su19




~ 162        APPEAL FROM JUSTICES' COURTS.
preme Court, under the statute, is to make a case setting it forth,
present it to the Circuit Judge, and procure his order, fixing the time
and place when and where it shall be settled, and for notice to the
opposite party that he may attend and propose amendments; or instead
thereof, take other equivalent proceedings.  Wright v. Dudley, 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 be treated as a
case made under the statute, or considered in the Supreme Court on the
hearing. Ibid.
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 presumption being that there was evidence below to authorize it. Ibid.
156. The statute allowing three months after trial for the making of
such a case, will be. construed to allow three months from the time the
decree is made. Ibid.
APPEAL FROM JUSTICES' COURTS.
157. A Judgment of 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.
158. A judgment for costs, of less than $4, against the plaintiff, might be appealed under the statute of 1845, (S. L., p. 98.) Wilson
v. Dacis, 1 Mich., 156
159. A party who has stayed execution on a judgment
against him, cannot afterwards appeal. People v. Judges of Macomb Circuit Court, 1 Mich., 134.
160. Garnishee cases being made appealable by the statute, the
Circuit Court has jurisdiction to hear and determine the appeal. Newell v. Blair, 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 ~ 3842 of Comp. Laws.
Davison v. Elliott, 9 Mich., 252.
162. The affidavit for appeal, being required by the statute
20




APPEAL FROM JUSTICES' COURTS.                 ~ 170
on the ground of public policy, cannot be waived or dispensed with by
the appellee. Smart v. Howe, 3 Mich., 590.
163. Where a plaintiff appealed, under the statute of 1845, (S. L., p.
98) from a judgment of costs against him, no affidavit was necessary.
Wilson v. Davis, 1 Mich., 156.
164. Where defendant appealed, under said statute, and the affidavit
was made by his attorney, and stated that the plaintiff 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 fully
communicated to him, it was held sufficient. Austin v. Strong, 1 Mich.,
259.
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 preliminary to such issue. If the appellant desire the Circuit Court to
review the decisions of the justice, on his objections to process, pleadings or proceedings anterior to the trial, he must set forth such
objections specifically in his affidavit for appeal. Chappee v. Thomas, 5
Mich., 53.
166. Recognizance. Under the statute of 1845, which provided 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. Wilson v. Davis, 1 Mich., 156.
167. Under said statute the recognizance could only be entered into
before the justice by whom the cause was tried. Austin v. Strong, 1
Mich., 259.
16S. Objections to the jurisdiction over the person are not
waived by taking an appeal. Shaw v. Moser, 3 Mich., 71.
169. But where one only of two defendants appealed from a judginent 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. Lamb, 6 Mich., 362.
179. 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 Lhat he could not raise the jurisdictional question for
the first time in the Supreme Court. Wells v. Scott, 4 Mich., 347; Tower
v. Lamb, 6 Mich., 362.
21




~ 181          APPEAL IN PROBATE CASES.
171. The return to the appeal, in which 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. Smnart 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. Chipman, 1 Mich., 116.
173. Notice 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. Chamnberlain v. O'Keefe, 2 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., 522.
175. Entrance fee. An appeal may be dismissed by the Circult 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.
Chaffee v. Soldan, 5 Mich., 242.
176. A -surety for costs in the Court below is liable for the
costs in the appellate Court. Dunn v. Sutliffe, 1 Mich., 24.
177. Judgment against surety.  The statute-Comp. L.,
~3866-authorizing the Court on rendering judgment against the appellant, to render it against the surety also, is not unconstitutional. Chappee v. Thomas, 5 Mich., 53.
APPEAL IN PROBATE CASES.
17S. The appeal bond, where one appeals from commissioners, under ~ 2936 of -Compiled Laws, cannot be given by a stranger.
Appeal of -Dickinson, 2 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.
1SO. The bond on appeal remains filed with the Judge of Probate,
but on an authenticated copy the Circuit Court may be moved to dismiss the appeal, and has authority to do so. Ibid.
1S1. Declaration  in  Circuit Court. Where, on appeal
from the decision of commissioners disallowing a claim against the estate
22




ARBITRATION AND AWARD.                     ~ 188
of a deceased person, declaration is filed in the Circuit Court on such
claim, but containinig, also, a count on an account stated with the admiiiistrators as such, such count may be treated as surplusage, and
judgment against the claimant will not be reversed because the jury
failed to pass upon the issue made on such count. Fish v. Morse, 8
Mich., 34
1S2. 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 suc1h 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 claim. LaRoe v. Freeland, 8 Mich., 531.
APPRAISAL LAW.
i84. The provision of the act of 1841, (S. L. 1841, p. 45, ~~ 1, 2,) prohllibiting the sale of property on execution, unless'it would bring twothircls of its value, as appraised by three disinterested freeholders, so far
as it applied to the remedy to enforce pre-existing contracts, was unconstitutional and void. Willard v. Longstreet, 2 Doug., 172.
U35. 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 before 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: Held,
that the plaintiff's rights not being affected by the appraisal, the sale
was valid, and conveyed a good title. Ibid.
1E6. The "Act to provide for the transfer of real estate on executioh,
and for other purposes," approved February 17, 1842, (S. L. 1842, p.
135,) did not authorize all appraisal and set off of mortgaged premises
in satisfaction of the mortgage, without previous proceedings to foreclose, either in equity or by advertisement. Buck v. Sherman, 2 Doug.,
176.
ARBITRATION AND AWARD.
lS7. One partner cannot submit partnership matters to arbitration without a special authority for that purpose from his co-partners.
Buchoz v. Grandjean, 1 Mich., 367.
1SS. A submission being thus entered into without special authority,
23




~ 195            ARBITRATION AND AWARD.
and an award made in pursuance of it Kin favor of the partnership, it
was held that the other party might defeat a suit on the award by
objecting such want of authority. Ibid.
lS9. A submission of the subject matter of a suit to arbitration is
a discontinuance of the suit. Dunn v. Suti'ffe, 1 Mich., 24; PVanderhoof
v. Decn, 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, &c., of Detroit v. Jackson, 1 Doug., 106.
191. A submission bond with condition that judgment may be rendered 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 award of arbitrators, under the statute, is an official
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,
(R. 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 submission 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. S. 532,
~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. S. of
1838, 532, ~ 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 submission 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.
195. Certainty in award.  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
24




ARBITRATION AND AWARD.                      ~ 206
the property was, the award in that respect was sufficiently certain.
Clement v. Comstock, 2 Mich., 359.
196. An award directing the return of property, but not expressly
determining the title to it, or directing releases to be executed, is sufficiently certain. Ibid.
197. 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 performing that which was certain. Ibid.
198. 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. Ibid.
199. Delivery of award.  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. Ibid.
201. Excess 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. (ostis. A clause in the submission bond, submitting all controversies between the parties, and "all matters 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. Ripley, 10 Mich., 237.
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. Mistake  in  award.  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 v. Eberhctrdt, 3 Mich., 524.
206. It was submitted to arbitrators to determine the value of certain 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.
25




~ 21.3                  ASSIGNMENT.
ARREST.
207. A constable did not acquire authority to execute writs directed
to the sheriff, in consequence of being in attendance upon a session of
the Circuit Court, in the discharge of his duties under R. S. 1838, p. 66,
~ 51. People v. Moore, 2 Doug., 1.
20S. A sheriff having no power to constitute a deputy for a particular 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. Drennan v. People, 10
Mich., 169.
ASSIGNMENT.
1. IN GENERAL.
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. Litc7field v. Garratt,
10 Mich., 426.
211. Check not an assignment. Where one in extremis drew
his check upon a bank, with directions to the payee to defray the funeral 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 National Bank of
Detroit v. Williams, 13 Mich., 282.
For further decisions, see ACTION; MORTGAGES OF LANDS; SPECIFIC
PERFORMANCE.
2. FOR THE BENEFIT OF CREDITORS.
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. Kirby v. Ingersoll, Har. Ch., 172.
Affirmed 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
Ingersoll, Har. Ch., 172. See also, Pierson v. Manning, 2 Mich., 445.
26




ASSIGNMENT.                         ~ 221
214. Aqcordingly, 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 in toto, and could not be sustained to the extent of securing the debt of the assignee.  Kirby v.
Ingersoll, 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 corporate property for the benefit of creditors, and it was held that such an
assignment was valid at the common law. Towon v. Ban/k of River
Raisin, 2 Doug., 530; Bank Commissioners v. Bank of B~rest, Har. Ch.,
106. But it seems that without the consent of the stockholders it could
not be made. Har. Ch., 106.
216. Must be of all the property.  A voluntary assignment 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 v. Mitchell, 12 Mich.,
180.
217. Selectioin 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. Angell v. Rosenbury, 12
Mich., 241.
21S. Preferences of one creditor or class of creditors over others,
may be made by a debtor in assigning. How v. Camp, Wal. Ch., 427;
Town v. BanGk of River Raisin, 2 Doug., 530.
219. A bona fide purchaser is not affected by a secret, fraudulent intent on the part of the assignor. Hollister v. Loud, 2 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 stipulations by him beneficial to the creditors. Ibid. But see Pierson v. Manning, 2 Mich., 445; F'lanigan v. Lampman, 12 Mich., 58.
220. One who has bought the property of the assignee, and verbally
agreed to give his notes therefor on time, but hc.s not yet made any
payment or given any notes, when the property is attached, is not entitled as against the attaching creditor to be considered a bona fide
purchaser. Dixon v. Hill, 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 without the express assent of the creditors. Suydam v
Dequindre, 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, 2 Mich., 445.
223. 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. Hollister v. Loud, 2 Mich.,
309.
224. But if it be so drawn that it must, in its execution, tend to hinder 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, 2 Mich., 445.
225. Actual 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. Hollister v. Loud, 2 Mich., 309; Baldwin v. Buckland, 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. Flanigan v. Lampm an, 12 Mich., 58; Smith v.
Mitchell, 12 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.
Angell v. Rosenbury, 12 Mich., 241.
22S. Facts that do not establish 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. Hollister v. Loud, 2
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, 12 Mich., 180.
231. Nor that the assignors were allowed by the assignees to occupy
premises conveyed by the assignment during a period when such prop28




ASSIGNMENT.                        ~ 241
erty was not usually rented, the assignees in the meantime taking the
crops, and expressing their intention to charge the assignors a fair rent.
Hollister v. Loud, 2 Mich., 309. See Booth v. M aic.Nir, 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. Baldwin v. Buckland, 11 Mich., 389; Angell v. Rosenbury, 12 Mich., 241. See
Booth v. 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.
Angell v. Rosenbury, 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 managing the business under the assignment, are not conclusive evidence of
fraud in making the assignment. Baldwin v. Buckland, 11 Mich., 389
See as to selecting assignee, Angell v. Rosenbury, 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. Lamxpman, 12 Mich., 58; Smith v. Mitchell, 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. Buckland, 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. Carr, 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 iHusan, 6
Mich., 329.
238. 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. When void on its face. A clause authorizing the assignee to sell the assigned property on credit, renders the assignment
void. Sutton v. Hanford, 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 v. Manfning, 2 Mich., 445.
241. An assignment to be valid most definitely fix the rights of the
parties beneficially interested, leaving nothing subject to the future
29




~ 249                     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.
242. When not void on its face.  It is no objection to an
assignment that no time is limited for closing the trust. Hollister v.
Loud, 2 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.,
513.
244. Nor does a clause reserving to the assignors power to perfect
the schedules attached to the assignment impair or restrict the instrument itself. Nye v. Van Husan, 6 Mich., 329.
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 interests of the creditors, converting the same into money." It will not be
considered as conferring a power to sell upon credit. Ibid. See a similar decision in Booth v. McNair, 14 Mich.
246. 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 Hrusan, 6 Mich., 329; Hollister v. Loud,
2 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 revocation," &c., does not confer upon the assignees the power to delegate
their trust; and is proper and unobjectionable.  Nye v. Van Hzusan, 6
Mich., 329.
24S. A schedule detailing at large the property conveyed, is not
necessary to the validity of an assignment. Hollister v. Loud, 2 Mich.,
309; Nye v. Vacn Husan, 6 Mich., 329.
249. The necessity or effect of a schedule, if one is referred to in an
30




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 instrtiments. Nye v. ycan Husan, 6 Mich., 329.
250. An' assignment which clearly manifests an intention on the
part of the assignors to tranisfer 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 hereafter annexed," and which schedule is not annexed. Ibid..
251. Compelling execution of the 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 creditors need not wait for the expiration of the time before filing a bill to
enforce the execution of the trust. Suydamn v. Dequindre, HIar. Ch., 347.
252. The fee in lands of the debtor which are covered by the
assignment will be conveyed by it without the use of words of iflheritance. Angell v. Rosenbulry, 12 Mich., 241.
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. Galloccway v. Holmes, 1
Doug., 330; Hale v. Chazlnler, 3 Mich., 531. See also, Hinchmnan v.
Town, 10 Mich., 508.
254. The alfldavit required by the statute is essential to confer
upon the Court jurisdiction of the proceeding. Greenvauzt v. Feurimeers
and Mechanics' Banck, 2 Doug., 498.
255. Where the affidavit was sworn to before a person not authorized 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. Drewo v. Dequindre, 2 Doug.,
93; Wilson v. Arnold, 5 Mich., 98; Fessenden v. Hill,t6 Mich., 242. 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




~ 265                   ATTACHMENT.
writ, and that the affidavit was transmitted to the clerk as soon as practicable by the usual course of mail. Wilson v. Arnold, 5 Mich., 98.
267. So where the writ was issued ten days before the affidavit was
made, the proceedings were held void. Buckley v. Lowry, 2 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.  Wilson v. Arnold, 5 Mich., 98. And
see Hale v. Chandler, 3 Mich., 531.
259. The affidavit is sufficient which states the indebtedness to be
upon express contract, without stating more particularly the nature of
the contract. Drew v. Dequindre, 2 Doug., 93.
260. The remedy by attachment is not limited to the case of liquidated 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 plaintiff 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. Roelofson 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. Dori- v.
Clarks, 7 Mich., 310.
262. The bond required to be executed by a non-resident plaintiff, his agent or attorney, by S. L. 1842, 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. Walbridge
v. Spalding, 1 Doug., 451.
263. Such bond is not vitiated by the omission, 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. Ibid.
265. The proceeding is a special one, in which the Court
exercises an extraordinary jurisdiction under a special statute prescribing 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.                       ~ 272
Beckley v. Lowry, 2 Mich., 418; Greeneault v. Farnmers and Mechanics'
Bank, 2 Doug., 498; Roelofson v. Hatch, 3 Mich., 277.
266. Amlnendments 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 default of the defendant failed to show the special character in which the
plaintiff sued, it was held that, when motion was made by the defendant to set aside the proceedings for this cause, the omission might be
supplied by amendment if in fact the defendant was properly called.
Ibid.
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. 228) 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, file 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. Greenvault 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 of the land under the attachment
proceeding against one to whom they had been mortgaged by the
defendant while the proceeding was pending. Ibid.
270. The sheriff's 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 application 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,) erroneously stated that the writ was returnable in November next, instead of
November instant, it was held that the mistake did not vitiate the proceedings. Drew v. Dequindre, 2 Doug., 93.
272. Appearance of defenidant. 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 service. 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
3                                      33




- 280                   ATTACHMENT.
would have had after a return of the writ personally served. Thompson v. Thomas, 11 Mich., 274.
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 personally served. Ibid.
274. Irregularities.  The defendant can only move the Court
to set aside the proceedings where some defect or irregularity is apparent in the writ or affidavit. If he claims that the case is not one
authorizing an attachment, he mnust take proceedings before a circuit
court commissioner for its dissolution. Roelofson.v Hatch, 3 Mich., 277.
275. A motion to set aside the proceedings for irregularity, made
after defendant has caused his appearance to be entered, is unseasonable. Ibid. And where the defendant goes to trial on the merits, he
waives all prior irregularities. Crane v. IIardy, 1 Mich., 56.
276. A judgment in attachment suit will not be set aside for irregularity, 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. Judqes of Calhoun Circuit
Court, 1 Doug., 417.
277. Other creditors filing  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 declaration in the cause, to proceed to judgment, nor affect his lien upon the
property attached. Ibid.
27S. Where one creditor only obtained judgment in a suit commenced 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
under the attachment.]
279. Recovery 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. Yoare, 12 Mich., 16.
2SO. Setting aside a regular judgment.  Where the defendant 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. Reed,
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 affidavit 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. Reeves, 2 Mich., 133.
2$2. Subsequent attaching 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. Chandler, 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. Ibid.
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 lien 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 the
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. Hinchman v. Town, 10
Mich., 508.
2S5. B. included in his judgment a demand which he believed to be
due,'hbut 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. Ibid.
286. Held further, that the question of priority between A.'s judgment and that portion of B.'s which was not due when his attachment
35




a 295                   ATTACHM.E.Xt.
was levied, must be determined by the levy of execution; and B.'s being
frst, levied, gave him the first lien. Ibid.
287. The 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 v. Hardy, 1
Mich., 56.
288. Attachment of lands.  To an attachment under R. 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.
I;eqfuindre, 2 Doug., 93.
289.. Trust estates in lands are not liable to execution or attachment.
Trask v. Green, 9 Mich., 358; Maynard v. Hoskins, 9. Mich., 485; Gor-, ~.~, FWing, 10 Mich., 486. And this is so. notwithstanding the trust is
a resulting one in favor of creditors under the statute-Comp. L.,
~  2637, 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 attachment. Columbia Bank v. Jacobs, 10 Mich., 349.
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
ex..eince. 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 t-h,.e 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
attaeh ed," only gives the creditor a lien on the debtor's attachable interegt in. the lands, and in no. way interferes with the previously acquired
rights of third persons. Ibid.
29:I. The Mayor's Court of Detroit had: no jurisdiction of
attachments, under R. S. of 1838. Welles v. City. of Detroit, 2 Doug., 77.
2.94. Dissolution of attachments. A circuit court commissioner has power.to dissolve an attachment which was levied only on
lands. Edgarton v. Hinchman, 7 Mich., 352.
2:9!. The only mode-by which a defendant in attachment can contest
the truth of the facts stated. in the affidavit upon which the attachment




ATTACHMENT.                        ~ 305
was issued, is byjan application under the statute-Comp. L., p. 1275 —
for a dissolution of the attachment. He cannot, by plea in abatement,
put the facts stated in the affidavit in issue. Bower v. Town, 12 Mich.,
230.
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 v. Mat:theows, 3 Mich., 18.
297. But appearing and pleading in the case does not preclude hiin
from making such application. Hyde v. Nelson, 11 Mich., 353.
29S. Where the debtor has assigned the property attached, he cannot take proceedings for the dissolution of the attachment, as he has nio
claim to have the property restored to him. Chandler v. Nash, 5 Mich.,
409.
299. Thle appiication for the dissolution of attachment must
state the reasons therefor. Osborne v. Robbins, 10 Mich., 277.
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; the 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 shouid
dismiss it. Nelson v. Hyde, 10 Mich., 521.
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, defendant 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 v. Nelson, 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. Parker 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 obligors, that the property did not belong to the defendant in the attachment, 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 office. Ibid.
ATTORNEYS AND COUNSELORS.
308. 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 practice or course of dealing between him and the clerk, from which such
promise can be implied. Preston v. Preston, 1 Doug., 292.
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 Mills, 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 Revised 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. County of Wayne, 1 Mich., 461. Provision was made
for compensation afterwards. See Comp. L., p. 1492.
313. A n 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.                    ~ 321
services, but, on recovery, a part of the property or its value in money
-is void for champerty. Backus v. Byron, 4 Mich., 535.
314. Remedy of client against.  A client whose attorney
has neglected his case and suffered 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. Reeves, 2
Mich., 133.
31$5. 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. Gray v. Emmons, 7 Mich., 533.
316. Where the attorneys of complainants who were assignees of a
portion of a chattel mortgage on a stock of goods, with priority of payment, 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. Ibid.
317. Nor does it make any difference in this respect, that the attorneys 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.
31S:. 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; —Held, that
the bond was wrongfully obtained, and should be given up to be cancelled. Ibid.
319. Nor is the right of complainants to this relief affected by 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 attorneys was for making sale of the excess after satisfying the claim of their
clients, is without consideration. Ibid.
321. Privileged communications. 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 be 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. Alderman v. People, 4 Mich., 414.
BAIL IN CIVIL CASES.
322. Exoneration. A Circuit Judge has no jurisdiction of proceedings 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.
Elliott v. Dudley, 8 Mich., 62.
BAILMENT.
323. Whether 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
alee 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 delivery 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.
325. The warehouseman is liable in trover for the value of the wheat
if he refuses, on demand, to deliver the requisite quantity. Ibid.
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. Cady, 3 Mich., 431. For further decisions, see CARPIERS OF GOODS; MARITIME LAW.
327. Title to wheat consigned. Where wheat is sent forward 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
v. Dacon, 13 Mich., 81.
32S. The consignor having made a contract of sale, and given to the
40




BANKS AND BANKING.                    ~ 334
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 by making delivery; and the vendee having
made an ineffectual attempt to find the consignee and obtain delivery,
and the wheat in the mneantime being destroyed by the accidental burning 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 obtained. Wales v. Lyon, 2 Mich., 276.
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 perpetual stay of execution on the judgment rendered in the suit against
him. Bostwick v. Dodge, 2 Doug., 331. See also Parks v. Goodwin, 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 bankruptcy subsequently obtained. Such plea is an abandonment by him
of the joint plea, which afterwards stands as the several plea of 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 indorser 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 collected. And if they fail to make the application, equity will compel it.
Wales v. JBank 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. Farmers and Mechanics'
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 determine 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.
33S. 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 payment of its indebtedness. Kimball v. Cleveland, 4 Mich., 606.
339. Restriction  on power to hold lands.  Where a
bank has power, under its charter, to take and hold lands for the convenient 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 will 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 mortgage 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., 424.
341. Unauthorized 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. Oakland County Bank, Wal. Ch., 90; People v. Oakland County
Bank, 1 Doug., 282.
342. Banking powers, what are. The issue of paper, designed to circulate, in the form and similitude of bank bills, is an act of
banking. People v. River Raisin and Lake Erie B. R. Co., 12 Mich., 389343. Discounting Paper. The buying of exchange by a bank
is, in effect, discounting paper. People v. Oakland County Bank, 1 Doug.,
282.
2. THE GENERAL BANKING LAW OF 1837.
344. The statute prescribed the mode in which the affairs of associations 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
Commissioners v. Bank of Brest, Har. Ch:, 106.
345. So much of the law as authorized the organization of corporations 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 the assent of at least two-thirds of each
house."  Green v. 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 insolvency. 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 General 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 incorporated banks 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 v. Hill, 1 lMich., 118.
347. The directors and stockholders could neither be held liable for
the bills and other indebtedness of the bank, as stockholders and directors of the association, nor as partners. State v. How, 1 Mich., 512.
8. PROCEEDINGS AGAINST BANxs FOR INSOLVENCY, &C.
34S. Insolvency. For a case where the facts were held to establish 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, lar. Ch., 106.
349. Assignment to avoid the statute. Where the directors 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.,
1f06.
350. Jurisdiction of Chancery. The.jurisdiction of Chancery over corporations for the purpose of restrainingtheir 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 Michigan, liar. Ch., 315. See also Attorney General v. Oakland 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
4Q




~ 361              BANKS AND BANKING.
conclusive evidence 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 statute. Attorney General v. Bank of Michigan, Har. Ch.,
315. See also Barnum 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. Ibid.
353. See for a construction of the suspension act of 1841, Attorney
General 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 corporation, its primary object is not for the purpose of dissolving the corporation, but to protect the assets for the benefit of creditors. The dissolution of the corportion is merely incidental. Fay v. Erie and Kalamazoo
R. R. Bank, -Har. Ch., 194.
356. The Court may, in such a case, dissolve the injunction, discharge
the receiver, and permit 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 corporation before discharging the receiver, and to make such order, either
absolute or conditional, as the case may require. Ibid.
35S. 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.,
t16.
359. In the act incorporating the Bank of Pontiac, the act of April
23, 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
further provision that the act shall not prevent the issuing of an injunction, does not change the law in relation to granting injunctions. Ibid.
360. An injunction against a bank goes to prevent all action whatever, 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 warranto.  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 the statute-Comp.
L-, ~ 4854-for continued insolvency "for one whole year." The State
shows sufficient diligence-if any is required-if it institutes proceedings 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 Pontiac, 12 Mich., 527.
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 FOR THE REDEMPTION 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, but 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 banking hours. Held, that
the course 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 countersigned as required by law. The averment that they-were issuAd 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 insolvent, 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.
36S. Compslaint. 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 v. People, 10 Mich., 25.
369. ]Issue. There is no necessity for a formal issue, but if the defendant 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 defendant. Ibid.
371. Costs. A defendant who was found guilty and adjudged to be
the father of a bastard child, under the Revised 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. Reviewing proceedings.  Proceedings in the Circuit
Court under the Bastardy Act cannot be removed into the Supreme
Court by writ of error. Cross v. People, 8 Mich., 113. But may be, by
common law certiorari. Cross v. People, 10 Mich., 25.
BILLS OF EXCHANGE AND PROMISSORY NOTES.
373. What is a bill 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 exchange drawn by the corporation upon itself.  Hasey v. White Pigeon
Beet Sugar Company, 1~ Doug., 193.
46




BILLS OF EXCHANGE.                         383
374. Acceptance of such a bill is not necessary, the act of drawing being deemed an acceptance. Ibid. See post 380, 382.
37$5. 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.
Ibid.
376. What is a promissory note. An instrument unconditionally 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. Beardslee 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 current exchaknge on New York, is a promissory note, and the indorsee may bring suit upon it in his own name. Smnith v. Kendall, 9
Mich., 241.
37S. 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. Frailek v. Norton, 2 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 Corn
Exchange Bank." Held to be an unconditional authority to make drafts.
Bissell v. Lewis, 4 Mich., 450.
3SO. 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. Ibid.
3Sl. It is not necessary for the payee in such a draft, who has received 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. Ibid.
3S2. A parol acceptance of a bill is made void by statute.
Comnp. L., ~1266. 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., 132.
3S3. When subject to equities. A person to whom a promissory note has been indorsed in payment of a pre-existing debt, is a holder for a valuable consideration, and is not affected by any equities be47




~ 390               BILLS OF EXCHANGE.
tween the antecedent parties, where he has received the note before'it
came due, without notice of such equities. Bostwick v. Dodge, 1, Doug;,
413; Outhwite v. Porter, 13 Mich. 533; overruling in this particular, Ingerson v. Starkwecather, Wal. Ch., 347. See Baker v. Pierson, 5 Mich., 459.
3S4. Whenever the consideration of negotiable paper is illegal between the original parties, especially if in violation of a positive prohibition of statute, proof of such illegality throws upon the holder the burden of proving that he got it bona fide, and gave value for it. Paton -.
Coit, 5 Mich., 505.
385;. Where, therefore, action was brought by the assignee upon
negotiable paper, and defendant showed that the same was given for intoxicating drinks sold in violation of the Prohibitory Liquor Law of
1855, which makes such paper " utterly null and void against all persons, 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 consideration"-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 exception of the statute, Ibid.
3S6. 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. Caqrll v.
Brown, 2 Mich., 401.
387. What is such reasonable 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. Littlefield v. Hodge, 6 Mich., 326. See.Dutton v. Ives, 5 Mich., 515.
390. Who is holder for value. A tax collector's agent received from a creditor of the collector a draft on the collector in payment 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. Elliott v. Miller, 8 Mich., 132.
48




BILLS OF EXCHANGE.                    ~ 399
391. Received as collateral or conditional payment.
Where a party receives negotiable paper from his debtor, with the debtor'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. Phmenia Insurance Co. v..Alen, 11
Mich., 501.
393. By accepting a draft as conditional payment, the creditor accepts the duty of doing everything with respect thereto, which is necessary 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 original cause of action. Ibid.
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 conditional 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. [CERISTIANCY, 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. Ibid.
396. When indorser a maker. 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.
Wetherwax v. Paine, 2 Mich., 555. See also, Higgins v. Watson, 1 Mich.,
428.  But see, Tinker v. McCauley, 3 Mich., 188, disapproving the last
mentioned case.
397. Indorser'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 v. Trowbridge, 13
Mich., 263.
39S. 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 indorser for less than its face; as no such evidence could change the nature 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 promis4                                      49




~ 406              BILLS OF EXCHANGE.
sory note, payable at a particular place, the plaintiff is not required to
prove presentment or demand of payment at the place specified. Reeve
c. 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 sufficiently show the dishonor. Nevius v. Bank of Lansingburg, 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, saythat any delay is reasonable beyond that which,is required in the ordiaary course of business, without special inconvenience to the holder;
or by the.special circumstances of the particular case. Phaenix Insurance
Co. v. Allen, 11 Mich., 501.
402. A draft drawn at Cincinnati, May 2, 1861, on persons in Chicago, payable at sight, was received in Detroit, May 4th, but not transmitted for presentment until the 25th 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 bearing upon the point, it was error to subiait to the jury the question
whether the draft  was presented for payment in a reasonable time-.
Ibid.
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 h e-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.  Phanix Insurance Co. v.
Tray, 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. Platt v. Drake, I Doug., 296.
406. A notice to an indorser that a promissory note " has been protested 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.                      - 415
had been protested referred rather to the making, 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 necessary.
[bid. Affirmed in Newberry v. Trowbridge, 4 Mich., 391.
407. But a similar notice to the indorser of a foreign bill was held
sufficient. Spies v. Newberry, 2 Doug., 425.
408. And where the note was payable in another State, under whose
statutes notaries public were authorized to demand payment of promissory notes and to protest them for non-payment, it was held that a similar notice was sufficient. Snow v..Perkins,, 2 Mich., 238.
409. The two cases of Platt v. Dxake,.and Newberry v. Trowbridge,
supra, doubted, and said to be founded on a misapprehension which led
the Court to overlook both commercial usage and statut's- which sanctioned protests of notes and inland bills.. Burkhamn v. Trowbridge, 9 Mich.,
209., See Newberry v.. Trowbridge, X3. 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.. Ibid..
411. A notice to a-party, dated.on.the day of the. maturity of an inland bill, and-stating that the bill was on that day, by; the notary public
who signed the notice, protested. fobr, non-payment,. after due -demand
and refusal, and that the holder looked to  the party. notified for payment, is sufficient. Ibid..
412. A mistake in describing a. promissory. note in. a notice of protest-as where the note was for $200,..but. was described in the notice: as
for $175-does not necessarily vitiate the notice; the question in such
case being. whether the indorser. was misled by the notice. Snolw v.
Perkins, 2 Mich, 238.
413. The object ofthe notice is to-inform the indorser of the non-payment 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.  Nevius v. Bank of Lansingburg, 10
KMich., 547, overruling in this particular,'-NewberTy v. Trowbridge, 4
Mich., 391.
4135. 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-office, proof that the person received it the
51




~ 424              BILLS OF EXCHANGE.
second day after the dishonor, is not sufficient to charge him.  Nevius v.
Bank of Lansingburgh, 10 Mich., 547.
416. It is not necessary that a copy of the protest of commercial
paper should accompany the notice. Atwoater v. Streets, 1 Doug., 455.
417. Proof to charge' indorser. 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.  Cicotte v. Morse, 8
Mich., 424.
418. Proof of notice. Where there is no direct evidence of
notice to the indorser, a subsequent'recognition of liability by him is presumptive evidence, in the nature of an implied admission, that notice
has been given. But where the plaintiff 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 notice; 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. Newoberry v. Trowbr idqe,
13 Mich., 263.
419. Waiver 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 offer 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 acknowledgment 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. KinsJie v. Farmers and Mechanics' Bank, 2 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.
Brigiham v. Gurney, 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 execution, unless its execution be denied by oath at the time of declaring,
pleading, or giving notice of set off, if such instrument shall be produced and filed with the justice. Comp. L., ~3767. And its execution
shall not be denied except under oath as so provided. C'omp. L., ~3714.
424. Under this statute, where plaintiff declares aainst two ormore
52




BOARD- OF SUPERVISORS.                  ~ 431
defendants as makers of a promissory note which is signed with a collective 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. Bideman, 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 refused 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 -v.
Hale, 4 Mich., 506.
426. 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.
427. "( 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. P/oanix Insurance Co. v. Allen, 11 Mich., 501.
42S. Renewal note, when a payment. A note which two
parties had indorsed for a third being over due, the holder wrote the indorsers 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 indorsers on the trial, who refused to receive it. Held, that the plaintiff,
by retaining the new note under the circumstances had made it his
own. Sagev. Walker, 12 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




~ 440             BOAT AND VESSEL LAW.
ground that the services charged for were not performed. People v.
Auditors of Wayne, 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 v. Auditors of Wayne, 13
Mich., 233.
433. New county. Where a new county is created by setting off
for that purpose organized townships from existing counties, the supervisors 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. Carleton,
People v. 10 Mich., 250.
BOAT AND VESSEL LAW.
434. To what cases it applied. Chapter 122 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. Bidwell v. Whittaker, 1 Mich., 469; Turner v.
Lewis, 2 Mich., 350.
435. But no distinction was made by the law between citizens of
this State and those of other States having claims. Ibid.
436. If the contract was made in another State, though to be performed in this State, no lien attached under the law. Turner v. Lewis,
2 Mich., 350.
437. A specific lien was given by the law on the boat or vessel, for
all such demands as were mentioned in the first section. Bidwll v.
Whittaker, 1 Mich., 469.
43S. 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. Lawson v.
Higgins, 1 Mich., 225.
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 122, 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 common 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 misjoinder of counts. Owners of Ship Milwaukee v. Hakte 1 Doug., 306.
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 shipment 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 122, (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 application 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. Wilson, 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. Ibid.
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. Lien of other creditors. 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; it was held that creditors who had failed 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. Watkins v. Atkinson, 2 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 ~~ 2 and 8.
Truesdale v. Hazard, 2 Mich., 344.
447. Nor was it necessary to aver that the vessel released upon the.
55




~ 456             BONA FIDE PURCHASER.
execution of the bond was, at the time of its seizure, within the jurisdiction of the Court issuing the warrant. Ibid.
44S. It was only necessary for the plaintiff to prove the execution of
the bond, and his claim or demand as set out in the declaration, to entitle him primrafacie to a recovery. Ibid.
449. The law  unconstitutional.  Said chapter 122 is unconstitutional. It conflicts with the provision that no person shall be
deprived of property without due process of law. Parsons v. Ru8sse8, 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. Godfroy v. Disbrow, Wal.
Ch., 260. For further decisions on this point, see PossEssION  OF LAwD.
451. Grantee of. Although a party may not himself be a bona
fide purchaser without 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.
Blanchard v. Tyler, 12 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. Godfroy v. Disbrow, Wal.
Ch., 260.
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.
455. 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. Barnard, 12 Mich., 104.
456. Constructive notice.  A grantee is chargable with notice of whatever appears in the chain of title through which he claims,
as well 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 affecting the land in their hands. Adams v.
Bradley, 12 Mich., 346.
458. Payment after notice. To constitute a bona fide purchaser, there must be a want of notice both at the time of the purchase,
and at the payment of the purchase money. Thomas v. Stone, Wal. Ch.,
117; Dixon v. Hill, 5 Mich., 404; Warner v. Whittaker, 6 Mich., 133;
Blanchard v. Tyler, 12 Mich., 339.
459. Where a debtor had made an assignment of his property, which
was void 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. Hill, 5 Mich.,
404. See also, Blanchard v. Tyler, 12 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 notified 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. Warner v. Whittaker, 6 Mich., 133.
461. Notice to agent. Where a debtor, owning lands incumbered
by mortgages, gave his creditor a deed of the lands, on a parol understanding 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., 12.
462. Extinguishing equities by foreclosure. Such purchaser 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.
Ibid.
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. Columbia
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. Henderson, 8 Mich., 395.
465. Judicial sale: wantof 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 under it. Wilson v. Arnold, 5 Mich., 98..466. Personal property: conditional sale. One in possession of personal property, of which he has made a conditional purchase, cannot, before the condition has been complied with, sell the
property so as to vest the title in a bona fide purchaser. Couse v.
Tregent, 11 Mich., 65.
BOND.
468. Alteration. Where the penalty of an official bond was reduced $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. When joint and several. A bond in these words:
" EKnow all men by these presents, that I, A. B., principal, and C. D.,E.
F., and G. I., sureties, are held," &c., " for the payment of which sum
well and truly to be made, we bind ourselves, our heirs, executors and
administrators, severally, firmly by these presents," is a joint, as well as
several bond. Supervisors of St. Joseph v. Coffinbury, 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. Ibid.
471. In suit on lost note. The bond to be executed by plaintiff to defendants, under R. S. of 1846, Ch., 102, ~89 —Comp. L., ~4326upon 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. Higgins v. Watson, 1 Mich., 428.
472. Indemnity: right of ofcer to. A sheriff before levying 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 refuse to execute the writ by seizure of such property until the bond is
given. Smith v. Cicotte, 11 Mich., 383.
473. If the sheriff seizes the property on promise of bond of indemnity by the creditor, which the latter afterwards fails to give, and the
58




BOUNTY.                         ~ 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. Ibid.
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 subsequent amendment of the law, does not deprive the party who has earned it of the full bounty given by the original act. People v. State Auditors, 9 Mich., 327.
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 volunteer for three years, was entitled to the bounty. People v. Quartermaster-General, 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, was 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
People v. Quartermaster-General, 13 Mich., 247.
478. 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. Ibid.
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 required by the statutes relative to special township meetings. Crittenden
v'. Robertson, 13 Mich., 58.
480. 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 extended to cover any advances of money made by individuals on their
59




~ 486               CARRIERS OF GOODS.
own account, and not on the credit or by the authority of the municipalities. Miller v. Granby, 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. Tozwnship Board of Woodhull, 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. Simmons v.
Simmons, 8 Mich., 318.
483. Aggravating circumstances.  In such action it is not
error to allow proof that defendant borrowed money of plaintiff, and renewed 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.
Ibid.
484. Excuse for breach. Proof of the frequent intermarriage
of the ancestors ofthe parties-who are cousins-and of the evil tendency
of the marriage of relations in producing deformed or sickly and imbecile children, is incompetent where the contract was not broken on any
such ground. Ibid.
CARRIERS OF GOODS.
485. Inland navigation: exemption from 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-owners, 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 River, 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. Anerican Transportation Co. v. Moore, 5 Mich.,
368. Affirmed by Supreme Court of United States. See 24 How., 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 must 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 exists; and if satisfied, that is sufficient. Ibid.
487. A common carrier cannot limit his common law liability by a
mere notice indorsed upon the receipt given the consignor, or otherwise
brought to the consignor's notice. The assent of the latter to the limitation is necessary, and must be proved by evidence alitinde: it cannot
be presumed from the terms of the receipt alone, or be implied from the
posting of notices or the delivery thereof to the consignor. Michigan
Central R. 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 transportation 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 therefrom. 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
UiAchigan Central R. R. Co. 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 Central R. R. Co., 3 Mich., 23.
491. Usage defiliing 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. Peter-s, 4 Mich., 619.
492. Liability for goods in warehouse. A railroad conipany 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. R.. Co.; v. Shurtz., 7 Mich.,
515.
61




~ 498               CARRIERS OF GOODS.
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, ahd 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 R. R.. Co. v. Hale, 6
Mich., 243, overruling Michigan Central R. R. Co. v. Ward, 2 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 common carrier is bound to receive and carry goods only when offered for
carriage by their owner or authorized agent; and then only upon payment of freight in advance, if required. If he obtains possession of
goods wrongfully, or without the consent of the owner, express or implied, and, on demand, refuses to deliver them to the owner, such owner may bring replevin for the goods, or trover for their value.  Fitch,
Newoberry, 1 Doug., 1.,.49. To justify a lien upon goods for their freight, the.relation of
debtor and creditor nmust exist between their owner and the carrier, so.that-an action at law.might be maiaintained for the payment of the debt
for which the:lien is claimed. Ibid.
497. Accordingly where plaintiff had shipped goods by carriers
under a special 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 iti ignorance of the manner in which the last meii'tioned 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.
498. 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 described] 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 account for their value. Flemiing v. Mlis, 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
sail 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 v. Webster, 3 Mich., 268.
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
so, and his damages exceed the amount of the freight, he cannot have
judgment against the plaintiff for the balance. Ward v. FelUers, 3 Mich.,
281.
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.
1Bancroft v. Peters, 4 Mich:,. 619.
CARRIERS OF PERSONS.
o02. 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 carried 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 accommodation 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.
&04. Such rules and regulations must have for their object the
accommodation of passengers generally; and they must be of a permanent nature, and not made for a particular occasion or emergency.
[bid.
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. Ibid.
506. Action against a common carrier of passengers by steamboat
for refusing plaintiff a cabin passage  Notice of defense that, by the
68




~ 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 regulation 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 determined on demurrer. Ibid.
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. Calduwell,
3 Mich., 51.
50S. 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 statute 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 Lapeer County, 1 Mich.,
504. See also Warner v. Porter, 2 Doug., 358; Cross v. People, 10 Mich.,
25.
510. Where proceedings under the statutes of 1838 weire 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 v. 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 the Supreme Court for a mandamus to correct this action, it was held that:he had mistaken his
remedy, and that it should be by certiorari. People v. Judges of Branch
Circuit Court, 1 Doug., 319.
11ia. Certiorari will lie to review an order of the Circuit Court
directing execution to issue on a transcript of a justice's judgment. Jerome v. Williams, 13 Mich.; 521.
512. Not till 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. Certiorari was sued out to remove to the Supreme Court the order of the
Circuit Court allowing this appeal.' Held, that until after the adjudication upon the appeal by the Circuit Court,-the proceedings could not be
reviewed by the Supreme Court; and the writ was dismissed.' Palm nsv.
Campau, 11 Mich., 109.
513. The writ is not: of right, but rests in the sound discretion 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., 324; Farrell v. Taylor, 12 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.
Farrell v. Taflor, 12 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., 324.
516. Laches in moving to dismiss. An order of the Probate Court requiring an administrator to account, having been brought
into the Circuit Court by appeal, and there reversed, and the proceedings 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 common law certiorari should set out the evidence upon which the convic65




~ 524                     CERTIORARI.
tion or other judicial act complained of was founded. Jackson v. People,
9 Mich., 111.
51S. But not to be weighed.  The office of a certiorari is
not to review questions of fact, but questions of law. And in examining into the evidence, the appellate Court, does so, not to determine
whether the probabilities preponderate one way or the other, but simply
to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved, whether that inference would or would not have been drawn by the appellate Court.
Ibid. See also Higley v. Lant, 3 Mich., 612; Hyde v. Nelson, 11 Mich.,
353; Cicotte v. Morse, 8 Mich., 424; Berry v. Lowe, 10 Mich., 9.
519. But the 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. Ibid.
520 Who to return the evidence. On certiorari to.the
Recorder's Court of Detroit, to remove the proceedings on conviction
for a violation of a city, ordinance, it was held that the evidence was
properly returned by the clerkof the Court. Jackson v. People, 9 Mich.,
111.
521. Fees 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 Springwells, 13 Mich., 246.
522. Misdirection. Where commissioners of highways laid out
and established a road, and an appeal was taken from their decision,
which affirmed what the commissioners had done, a certiorari sued out
for the purpose of reviewing the decision of the township board, directed to the commissioners, instead of to the township board, was dismissed for the misdirection. Goodrich v. Commissioners of Hqghways of
Lima, 1 Mich., 385.  And see French v. Hrighway Commissioners of
Supringwells, 12 Mich., 267.
2. To COUNTY COURTS BY STATUTE.
523. Where a cause was removed from the County Court to the Circuit Court by certiorasri, 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., 612.
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 presumed that there was evi66




CERTIORARI.                        ~ 533
dence in the Court below to sustain the finding.  Snow v. Perkins, 2
Mich., 238.
525. The case having been brought into the County Court by certiorari to a justice, and afterwards removed by certiorari to the Supreme
Court, it was held that the plaintiff in error could not assign in the Supreme Court errors not pointed outin the Court below, and which might
perhaps have been there obviated. Lee v. Hairdgrave, 3 Mich., 77.
526. A judgment in the County Court rendered upon proofs and a
submission 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 County Court, 1 Mich., 359.
523. Under said act of 1849 the Circuit Court, in its discretion, on reversing a judgment of the County Court, might award a new trial. HIerring v. Hock, 1 Mich., 501.
3. To JUSTICES COURTS BY STATUTE.
529. In special proceedings. The general statute allowing
this writ does not apply to the case of a jidgmnent rendered by a justice
in a summary proceeding by complaint, under village by-laws, for neglect to perform highway labor. Warner v. Porter, 2 Doug., 358.
530. Where appeal is given. -Nor to a case under the Prohibitory Liquor Law, where an appeal is the remedy given. People v. Farwell, 4 Mich., 556.
531. Papers to be filed before writ issues. Before the
writ issues the affidavit to procure the allowance thereof, and the allowance 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 allowance are filed, the cause will be dismissed for want ofjurisdiction. People
v. Judges of Cass Circuit Court, 2 Doug., 116. See Comp. L., ~3874.
532. Service of the writ on Sunday is void under the statute prohibiting labor, &c., on that day. Comp. L., Ch. 44. Anderson v.
Birce, 3 Mich., 280.
533. Assignments 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 specific to raise any question on the merits, and must be understood as re67




~ 539                    CERTIORARI.
ferring only to the decision of the justice on the motion to dismiss.
Fowler v. Detroit and Milwaukee Railway Co., 7 Mich., 79.
534. An assignment of error, that there was no evidence to sustain
the verdict and judgment, is too general to be noticed. [MANNING, J.]
Welch v. Bagg, 12 Mich., 41.
535. Presumption in favor of judgment. It will be presumed that there was evidence to sustain the finding though none appears, unless the return expressly shows that the whole of the testimony
in the case is returned. Gaines v. Betts, 2 Doug., 98. And see Snow v.
Perkins, 2 Mich., 238.
536. Where the justice certified as follows: "I do certify the following 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 ihust be presumed that the whole
evidence was returned. Cicotte v. Morse, 8 Mich., 424.
537. Facts not to be reviewed.  On certiorari, if the error
alleged is a total want of evidence to prove some fact necessary to sustain 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 testimony before the justice has been, returned, the judgment should be reversed on the ground that the justice erred, in law, in rendering the
judgment he did without such evidence. Berry v. Lowe, 10 Mich., 9.
See also Gaines v. Betts, 2 Doug., 98; Higley v. Lant, 3 Mich., 612; Cicotte v. Morse, 8 Mich., 424; Hyde v. Nelson, 11 Mich., 353; Welch v.
Bagg, 12 Mich., 41. The dictum  to the contrary in Elliott v. Whitmore,
5 Mich., 532, corrected, 10 Mich., 13.
538. Costs. Replevin in Justice's Court. The Court found a part
of the property to be in the plaintiff, and gave him judgment therefor,
with costs, ahd awarded a return of the remainder. On certiorari, the
Circuit Court reversed the judgment as to a part of the articles awarded
to the plaintiff, 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 st. 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 Supreme Court has no power to require a further return of the justice to
the certiorari.  Wight v. Warner, 1 Doug., 384.
68




COLLISION OF VESSELS.                   ~ 547
CIRCUIT COURT COMMISSIONERS.
540. Power to take bail.  Circuit Judges have power, independent of statutory provisions, to take bail in criminal cases at chambers; 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. fThe 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.  Waldby
v. UOlllendar, 8 Mich., 430.
542.-to try forcible entries, &c. The statute-Comp. L.,
Ch. 150-empowering circuit court commissioners to entertain summary 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 attachmentsComp. L., p. 1275-does not give powers beyond those which may be
properly exercised by a Circuit Judge at chambers, and therefore is not
unconstitutional. Edgarton v. Hinchman, 7 Mich., 352.
CIRCUIT JUDGES.
544. In new circuits.  The terms of the Circuit Judges and
Regents of the University, elected in the ninth and tenth judicial circuits, under the act of January 29, 1858 (S. L., p. 14), commenced as
soon as they had been duly declared elected. People v. Gcarlock, 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 Clhesapeake, 2 Doug., 33.
546. A general custom of navigation, like that for vessels to pass
each other to the left, may he 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 reasonabll effort, might have prevented it; and each party
69




~ 555            COMPROMISE OF CLAIMS.
should act upon the presumption that the other will adhere to the custom. Ibid.
COMITY BETWEEN STATES.
54S. A party to a suit in another state cannot be committed in this State, for refusing to give his evidence under commission.
The statute-Comp. L., ~4295-applies to general witnesses only. Matter 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 v.
Lacey, 2 Doug., 230.
550. A suit in a court of a sister state, or in one of the Federal Courts, previously commenced, will not be enjoined by the Court
of Chancery. CarroUl v. Farmers and Mechanics' Bank, Har., Ch. 197.
COMMISSIONERS OF INTERNAL IMPROVEMENT.
551. Control of streets. The Commissioners of Internal Improvement 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 offices and other buildings thereon. Cooper
v. Alden, Har. Ch., 72.
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. Stout v. Keyes, 2 Doug., 184.
553. Questions of right not clearly excepted from it must be determinecd 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. When valid. 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 he has no right, and acts in good faith, is sufficient to sustain
a compromise. Gates v. Shutts, 7 Mich., 127.
555. Defendant charged complainant with intentionally burning his
own mill, and claimed payment for wheat belonging to defendant which
was destroyed with the mill, and complainant gave his note and mort70




CONDITIONS.                      ~ 561
gage for the value of the wheat. On bill 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. Disafiirmance for fraud. Where a creditor is induced,
by the fraudulent representations of his debtor, to compromise, and receives 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 payment, and maintain an action on the case for damages sustained
by the fraud. Jewett v. Petit, 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
afterthe compromise note became over due, sold and transferred it, with
the collaterals and the original debt, it was held, that he thereby affirmed
the compromise, and that the purchaser could not claim the amount of the
original debt on the ground of forfeiture of the compromise agreement before he purchased. Hale v. Holmes, 8 Mich., 37.
55S. And the collateral security being the 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 had no 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.  Chandler v. Allison, 10
Mich., 460.
CONDITIONS.
560. Extension. Where time has been extended for the performance of conditions, a party seeking to avail himself of the extension must
aver a readiness to perform within the time as extended, and notice thereof. Trowbridge v. Harleston, Wal. Ch., 185.
561. Condition subsequent. A bank being indebted to the
State, conveyed to the 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




~ 568:CONDITIONS.
the State should indemnify and save harmless the bank from and against
certain claims and liabilities: 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., 225, overruling on this point, Hammond v. Michigan
-State Bank, Wal. Ch., 214.
562. There could be no breach of the condition until the bank w-as
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 mortgaged 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. A Court of equity would not enforce specific performance of the
covenant before the bank had been actually damnified; nor even afterwards, 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. Ibid.
566. Acceptance of conditions. After the execution of the
agreement between the bank and the commissioners, the State took possession of the property conveyed, and exercised acts of ownership over
it. The Legislature subsequently passed -an act, constituting certain
State officers trustees on behalf of the State, to take charge of the property, 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 purported to bind the State to indemnify the bank, or to pay or advance
money to discharge incumbrances or for any other purposes, which portions were thereby expressly rejected. Held, that the State had not
the power to hold the property conveyed, and at the same time reject the condition upon which the conveyance was made; and that so
muich 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.
568. By acting upon the agreement between the bank and the commissioners, by exercising acts of ownership over the property conveyed,
and also by said legislative act, the State had recognized and affirmed
72




CONFLICT OF LAWS.                     ~ 574
the act of the commissioners in making the agreement,'whether the commissioners originally had power to agree to the' condition therein contained or not. Ibid.
CONFLICT OF LAWS.
569. Foreign  law  presumed like ours.  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. Palmer, 1 Doug., 379. And see High, Appellant,
2 Doug., 515; Crane v. Hardy, 1 Mich., 56.
570. Interest. But the rates of interest being established by statute in this State, it is not a presumption of law that the rate in a
foreign country is the same. No presumption can arise that foreign
countries have adopted our local statutes.  Kermott v. Ayer, 11 Mich.,
181. See People v. Lambert, 5 Mich., 349.
571. Lex loci of contracts. 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 v. Perkins, 2 Mich., 238. See Orr v. Lacey, 2 Doug., 230; Collins
Iron Co. v. Burkham, 10 Mich., 283.
572. 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 v. Lewis, 4 Mich., 450.
573. Remedies. A law of New York, which would enable a vendor, of whom goods'had been purchased fraudulently on credit, to maintain 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.  Galloway -v. Holmes, 1 Doug., 330. See
further as to foreign remedies, Colliins Iron Co. v. Burkham, 10 Mich., 283.
574. lRecording laws.  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 Of Canada, 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




~ 582                 CONSIDERATION.
execution against the mortgagor, it was held, that the title under the
execution sale must prevail over that under the mortgage. Ibid.
575. The statute providing that every mortgage of goods and chattels 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. Robinson v Rice, 3 Mich., 235.
576. Boat and vessel laws. Proceedings under the boat and
vessel law of another State, which allows non-resident creditors no opportunity 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. Stephenson 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. Dye 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. Rood v. Jones, 1
Doug., 188.
580. 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. Ibid.
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 asserted 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. Fan
74




CONSTITUTIONAL LAW.                       X 588
Dyke v. Davis, 2 Mich., 144. And see Weed v. Tertry, Wal. Ch., 501; same
case, 2 Doug., 344; Gates v. Shutts, 7 Mich., 127; Hale v. Holmes, 8
Mich., 37.
5S3. But where a timid and ignorant man was induced, by threats
of a prosecution for slander, to assign a mortgage to another, the assignment was held to be without consideration, and a reassignment was
decreed. Tate v. Whitney, Har. Ch., 145.
554. Lost goods found by two jointly. While plaintiff'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. Cummings v. Stone, 13 Mich., 70.
585. Stock in educational institutions.  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 subscription, 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.  Held, that there
was a sufficient consideration for the note. Wesleyan Seminary v. Fisher,
4 Mich., 515. See as to subscriptions to such institutions generally,
Underwood v. Waldron, 12 Mich., 73.
586. Several considerations. If one of several considerations, which are the ground of a promise, is only frivolous and insufficient, 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. Fisher, 4 Mich., 515.
587. Insufficient 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
assignor owed a debt payable out of such property as he might die the
owner of. Cicotte v. Gagnier, 2 Mich., 381.
558. Guaranty. It is not essential to the validity of a guaranty
that the consideration should -be expressed therein; but the actual consideration 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.
75




~ 595             CONSTITUTIONAL LAW.
CONSTITUTIONAL LAW.
1. QUESTIONS UNDER CONSTITUTION OF THE UNITED STATES.
589. Legal 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. Van Husan 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 opinion 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 dollars 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. Buchegger v. Shultz, 13
Mich., 420.
591. Conmmerce. The power of Congress to legislate on the liability of common carriers within the State, discussed. American. Transportation 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 indorsed, 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 discharge is a bar to a suit brought on the note in Michigan by the indorsees, quere. Brighton Market Bank v. Merrick, 11 Mich., 405.
593. Stamp act: curing defective stamping.  Where a
statute makes a contract void for want of compliance with the requirements 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. Hibbard,
13 Mich., 214.
594. Retrospective Laws. 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 the constitution of the United States.
Michigan State Bank v. Hastings, 1 Doug., 225.
596. The statute requiring a new promise to be in writing, in order
to revive a debt barred by the 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 property on execution, unless it would bring two-thirds its value as appraised, was unconstitutional and void as to pre-existing contracts.
Willard v. Longstreet, 2 Doug., 172.
59S. A law increasing exemptions from execution, affects the remedy
only, and is not unconstitutional as applied to pre-existing debts. Rockwlell v. Hubbell's Adm'rs, 2 Doug., 197.
599. A judgment is not a contract in the constitutional sense. Crane
v. Hardy, 1 Mich., 56.
600. The act of 1843-Comp. L., ~ 4614-inhibiting actions of ejectment 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 constitute a part of the mortgage security. Mundy v. Monroe, 1 Mich., 68.
And see Stevens v. Brown, Wal. Ch., 41; Blackwood v. Van Vleet, 11 Mich.,
252.
601. The law allowing a certain time for redemption after foreclosure 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.  Cargill v. Power,
1 Mich., 369.
602. A law passed in pursuance of the police power of the State, is
not unconstitutional because operating to prevent the performance of a
contract previously made. People v. Hawley, 3 Mich., 330.
603. An act subsequent to the charter of a corporation, and not assented 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 v. 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. Ibid.
2. QUESTIONS UNDER THE CONSTITUTION OF THE STATE.
605. General 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 v. People, 8 Mich., 320;
Scott v. Smart's Executors, 1 Mich., 295; People v. Gallagher, 4 Mich., 244;
77




~ 614              CONSTITUTIONAL LAW.
Sears v. Cottrell, 5 Mich., 251; People v. Blodgett, i3 Mich., 127; People v.
Mahaney, 13 Mich., 481.
606. A statute cannot be declared void on the ground of its violating
fundamental principles of republican government, when it does not
come in conflict with constitutional provisions. People v. Mahaney, 13
Mich., 481; People v. Gallagher, 4 Mich., 244. But there is no such violation in the case of the Detroit Metropolitan Police Law. People v.
Mahaney, 13 Mich., 481.
607. In a case of doubt, every possible presumption, not clearly inconsistent with the language and the subject matter, is to be made in
favor of the constitutionality of State legislation. Sears v. Cottrell,
5 Mich., 251.
60S. Delegating legislative power. The power of enacting 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 submission 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, quere. Ibid.
610. Rules of construetion.  A provision of the constitution
contravening the common law is to be strictly construed. This principle applied to the statutes relative to the rights of married women in
property. Browm v. Fifield, 4 Mich., 322.
611. That a law unconstitutional in some of its provisions may be
valid as to the remainder, see Smith v. Village of Adrian, 1 Mich., 495;
Ames v. Port HuETron Log Driving and Booming Co., 6 Mich., 266, and 11
Mich., 139; People v. Mahaney, 13 Mich., 481.
612. Grand Jury.  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 should be held to answer for a
criminal offense, unless on presentment of a grand jury, except," &c.
Slaughter v People, 2 Doug., 334.
613. Jury trial. 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. Confronting  witnesses.  A  certificate of marriage,
signed only by the minister or officiating officer, or the record thereof,
cannot avail as evidence of the marriage in criminal proceedings, where
78




CONSTITUTIONAL LAW.                     ~ 622
the defendant is entitled to be confronted with the witnesses against
him. People v. Lambert, 5 Mich., 349.
615. Religious belief of witnesses. Under the constitution
and statutes of the State, a party has no right to question a witness
with respect to the belief of the 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 former inconsistent statements which he denies having made. People v. Jenness,
5 Mich., 305.
616. Due process of law. A statute which merely gives a
new remedy, where none existed before, is not objectionable as depriving a party of vested rights. WVhipple v. Farrar, 3 Mich., 436.
617. The "search and seizure 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 warrant was to be returned. It was therefore unconstitutional. EHibbard v.
People, 4 Mich., 125.
61S. The joint debtor act, authorizing judgment in form to be entered against all, though only one has been served with process, is
not unconstitutional. Brooks v. McIntyre, 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. Chappee v. Thormas, 5 Mich., 53.
620. The provision in the tax law of 1853, that "In case any person 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-held not unconstitutional. Sears v. Cottrell, 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
passd 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




~ 628              CONSTITUTIONAL LAW.
the citizen the right to a trial, according to the forms of law, of the
questions of his liability and responsibility before his person or his
property shall be condemned. Parsons v. Russell, 11 Mich., 113; Ames
v. 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 allowing the sale. It is threfore in conflict with the provision of the constitution above quoted, and void. Parsons v. Russell, 11 Mich., 113.
625. The statute of 1855 for* the forming of rafting companiesComp. 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 managing 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.
(b.) And it deprives persons of their property without due process of
law, since under the statute the corporation and its agents must of necessity determine when the emergency has arisen which justifies assuming control, and they must also assess their own charges, and sell the
property to pay them. Azes v. Port Huron Loy Driving 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.  Groesbeckv. Seeley, 13
Mich. 329.
627. The provision in the tax law of 1858, that a tax deed two
years recorded shall be conclusive, fell with the clause which authorized proceedings before a circuit court commissioner to test the validity
of tax titles. (Waldby v. Callendar, 8 Mich., 430.) Quinlon v. Rogers, 12
Mich., 168. See post 637, 638.
628. 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 assessments 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 common council to provide funds for defraying the expenses of paving
streets, by assessment upon the owners and occupants of adjoining lots,
held constitutional. Ibid.
630. The amended charter provides that the common council may
cause the streets to be graded and paved, and assess the whole 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.
City of Detroit, 8 Mich., 274.
631. Taxation of cities by state agencies. There is nothing 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 autlhrities 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. Maahaney, 13 Mich., 481.
632. Restrictions upon municipal taxation. A law authorizing 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. Ibid.
633. Stating object of tax. An act which provides for levying a tax to meet the expense of the police system of a city, as estimated by the police board, sufficiently states the tax and the object to
which it is to be applied, within ~14 of art. xiv. of the constitution.
Ibid.
634. Remitting taxes. The act of Feb. 12, 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 construction, 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- General, 7 Mich., 84.
635. Limitation 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 enable it, under the form of a limitation law, to take away all remedy.
Price v. Ilopkcin, 13 Mich., 318.
636. A legislative act retrospective in its operation, and cutting off
6                                      81




~ 643              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 property without due process of law; and would therefore be void. Ibid.
637. The statute of 1858 (S. L., p. 192, ~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 owner who has remained in undisturbed possession of the lands, is not
valid as an act of limitation. Groesbeck v. Seeley, 13 Mich., 329.
63S. 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. Ibid.
639. Elections: presence of voters at their places of
residence. The provision in the State constitution (Art. vii., ~1.),
that " No citizen or inhabitant shall be an elector, or entitled to vote at
any election, unless he has resided in tl* 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. Blodgett, 13 Mich., 127.
640. Election of members of legislature. 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 decided by that house to be elected, and that excluding their votes the act
was not adopted by the proper majority. People v. Mahaney, 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 ~20 of Art. iv. of the
constitution. Ibid.
642. Amendatory statutes.  A statute having amendatory
effect by implication, and repealing inconsistent acts, is not in conflict
with,25 art. 4 of the Constitution, because not re.enacting and publishing at length the acts so altered and amended by implication. Ibid.
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 appropriation of the lands to educational purposes as to place them, under
82




CONSTITUTIONAL LAW.                     ~ 650
~2 Art. xiii. of the constitution, beyond legislative control. People v.
Auditor-General, 12 Mich., 171.
644. The subsequent acts, reducing the proportion thus set apart,
and appropriating lands to the construction of roads, were therefore not
invalid. Ibid.
645. Adjusting claims against 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 exclusive power to prescribe and fix the compensation for all services rendered 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 embrace 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., 233.
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. 332), 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, 432. 
648. Laying out roads. Sec. 2, 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 compensation to be made therefor, except, &c., shall be ascertained by a
jury. As the laws then in force relative to laying out roads were inconsistent with this provision, it was held that, until new laws were
passed there was no authority for laying out roads.  People v. Kimball,
4 Mich., 95.
649. Divorce. The legislature being prohibited from granting
divorces-Const. Art. iv., ~26-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 conflict with the constitutional provision inhibiting the legislature from authorizing the sale of any real estate of any person by private or special
law. Joy v. Jackson and Michigan Plank Road Co., 11 Mich., 155.
83




~ 658             CONSTITUTIONAL LAW.
651. Judicial officer removing from  district. Sec. 22,
Art. vi. of the constitution providing that whenever by a change in the
boundaries of a township 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 previously 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 prohibition operates. People v. Hawley, 3 Mich., 330; People v. Gallagher, 4
Mich., 244.
653. License to sell liquors. Act No. 178 of 1851, which prohibited, 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 effect
authorizing the grant of a license to sell, and thus conflicting with
~ 47, Art. iv. of the constitution. Langley v. Ergensinger, 3 Mich., 341.
654. See the question discussed, whether the authority to sell under
the Prohibitory Liquox 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 Prohibitory Liquor Law of 1855 is not in conflict with said ~ 47 of Art. iv
People v. Gallagher, 4 Mich., 244.
656. Suits against municipal corporations. Under ~ 18,
Art. vi. of the constitution, the legislature may lawfully exempt municipal corporations from the jurisdiction of justices of the peace. Root v.
Mayor, &c., 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 Michigan,' " applies only to process issued by Courts or judicial officers, and
would not include the supervisor's warrant appended to the tax roll.
Tweed v Metcalf, 4 Mich., 579; Wisner v. 2Davenport, 5 Mich., 501.
65S. General banking law. So much of the General Banking Law of 1837 as purported to confer corporate rights upon the associations organized under it, was in violation of ~ 2, Art, xii. of the constitution of 1835, which declared that " The legislature shall pass no act
84




CONTRACTS.                       ~ 668
of incorporation unless with the assent of at least two-thirds of each
house."  Green v. Graves, 1 Doug., 351.
659. Two-thirds majority. The word " house " in said section meant the members present, doing business-there being a quorum
-and not a majority of all the members elected. Southworth v. Palmyra and Jacksonburalh Railroad Co., 2 Mich., 287.
660. Pay of speaker of the House. Under ~~15 and 17 of
Art. iv. the Speaker of theHouse of Representatives cannot, as speaker,
receive any compensation or mileage beyond what he receives as a representative. People v. Whittemore, 2 Mich., 306.
661. Imprisonment for debt. Sec. 3633 of Comp. Laws, authorizing the issuing of a warrant in an action on contract, on the ground
solely of the non-residence of defendant, is in violation of ~33 of Art. vi.,
forbidding imprisonment for debt, except, &c.  Chappee v. Thomas, 5
Mich., 53.
662. Imprisonment on an execution in replevin would not fall within the prohibition. Fuller v. Bowker, 11 Mich., 204.
663. Judicial 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 unconstitutional.  Chandler v. Nash, 5 Mich., 409. See, also, CIRCUIT COURT
C OMMISSIONERS.
CONTRACTS.
664. Construction. The intention of the parties, as expressed
in their contracts, is to govern in the construction of them. Bronson v.
Green, Wal. Ch., 56. And the object of interpretation is to ascerta
this intention. Norris v. Showerman, 2 Doug., 16.
665. The intention is to be regarded, rather than the language employed to express it. Bird v. Hamilton, 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. Bronson
v. Green, Wal. Ch., 56; Norris v. Hill, 1 Mich., 202.
667. Where one writing refers to another, the intention of the parties is to be gathered from the two, construed together.  Bronson v.
Green, 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 the latter, if it is not clearly expressed therein. Ibid.
669. The whole instrument is to be construed together; and a construction of a detached part without reference to the rest, is erroneous.
Norris v. Showerman, Wal. Ch., 206, and 2 Doug., 16.  Bird v. Hamilton, Wal. Ch., 361; Paddack v. Pardee, 1 Mich., 421.
670. 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. Showerman, Wal. Ch., 206.
671. Particular words and phrases unguardedly used, when the intention 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. Hamilton, Wal. Ch., 361.
672. The situation of the parties, and the subject matter of the transaction, may be taken into consideration in construing their contract.
Paddack v. Pardee, 1 Mich., 421; Norris v. Sholwwerman, 2 Doug., 16.
See Facey v. 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 contract is reduced to writing, all previous parol agreements relating to the
same matter are merged in the written contract.  Street v. Dow, 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 engagement, 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. Wendell, Wal.
Ch., 267; Jones v. Phelps, 5 MIich., 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 instrument, 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 admissible, not to contradict the written instrument, but to aid the Court
in giving a true construction to it. Facey v. Otis, 11 Mich., 213.  See
Rowe v. WTright, 12 Mich., 289.
677. Assent necessary.  Where defendant gave plaintiff his
86




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. Keller v. Holderman, 11 Mich., 248.
678. Amibiguous time. A promissory note, dated July 20, was
by its terms payable " One year, August 15th, after date." Held 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 instrument 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 University v. Detroit Young Men's Society, 12 Mich., 138. See, also, Sweetzer v. Mead, 5 Mich., 107.
60S. 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 v. Hamnell,
2 Doug., 73.
6Si. A sale made on Sunday is void under the statute-Comp. L.,
~1574-and the vendor may, on a subsequent day, tender back the purchase price, and recover his property by replevin if itis not restored on
demand. Tucker v. Mowtrey, 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 law. A bank having authority under
its charter to hold such real estate only as was required for its accomodation 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 satisfaction 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, and Wal. Ch., 99.
See, also, Smith v. Barstow, 2 Doug., 155; Hurlbut v. Britain, 2 Doug.,
191; Orr v. 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 pro87




~ 692                    CONTRACTS.
mise was made may have had a knowledge of it. Smith v. Barstow, 2
Doug., 155.
6S5. 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 v. Jerome, 7 Mich., 145.
686. A judgment in favor of a bank organized under the unconstitutional 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. Comstock v. Draper, I Mich., 481.
68S. 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, 2 Mich., 250.
68S. Express and implied. Where there is an express contract none can be implied. If, therefore, a party defrauded by an express contract rescinds it, he cannot set up an implied contract and
sue the other party thereon. Galloway v. Holmes, 1 Doug., 330.
6S9. 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 affirm 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 affirms the contract. Ibid. See, also, Jewett 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.
Jewett 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 finished, sent forward fifteen sets, which the purchaser alleged were defective 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 castings came, without examining whether they were defective, returned
the whole to the manufacturers. It was held that the manufacturers
were entitled to a reasonable time to fulfill the contract after being notified of the defects; and that they might recover, according to the
88




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 v. Norton, 4 Mich., 286.
694. Agreement not to sue.  Where a creditor agrees with
his debtor that he will 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 v. Godfrey, 2 Mich., 408; Morgan v.
Butterfield, 3 Mich., 615. For construction of a special agreement not
to sue, see Kent v. May, 13 Mich., 38.
695. Part delivery. Although a contract for the sale and delivery 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. Clark v. Moore, 31 Mich., 55.
696. Land purchase-delivery of deed. A purchaser gave
his bond and mortgage for the purchase price, and received from attorneys who were acting for both parties a receipt therefor, stating that
the attorneys were to hold the same without attempting. their enforcement until conveyances of the property purchased were made. It was
held that the vendors had performed on their part when they had executed the conveyances, and left them with the attorneys.  VanDyke v.
Davis, 2 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 burn. He cut a portion of this last timber into fire wood, and
sold it-no objection thereto 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, 2 Mich., 183.
69Si 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 tocall for
89




~ 705                   CONTRACTS.
the board within the term, and substantially as the same fell due.
Ibid.
700. Title to property which is being manufactured.
Plaintiff 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 proportion, retaining the balance for their services; and the contract provided 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. Held,
that the logs were not subject to levy on execution against the firm.
Bassett v. Hathaway, 6 Mich., 397.
701. Independent agreements. 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 compensated 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 nothing if the staves were lost without their fault. Shaw v. Davis, q7 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 plaintiff had no claim against
the estate, but must look to the land as his pay. LaRoe v. Roeser, 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 control of its collection. Hickey v. Baird, 9 Mich., 32.
705. Plaintiff pointed out property to be levied upon, and the same
was levied upon accordingly. Subsequently defendant discharged the
judgment on receiving ar conveyance of lands which proved of no value.
90




CONTRACTS.                        ~ 713
Plaintiff 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. Crcane 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.
709. 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 instruments must be capable of ratification by the same act. Ibid.
710. Indemnity or payment. One member of a firm covenanted 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. Dye v. Mann, 10 Mich., 291. See also Wheelock v. Rice, 1 Doug., 267, and Smith v. Barstow, 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. Hcall v. 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-partner 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." Held to be a mere contract of
indemnity, upon which the party's remedy was at law. Held also, that
the agreement was not within the statute of frauds, and the actual surrender of the party's interest in the firm was a sufficient consideration
to support it. Bonebright v. Pease, 3 Mich., 318.
715. Subscriptions for public purposes. Where a subscription 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 v. Wcldron, 12 Mich., 73.  See also Wesleyan
Seminary v Fiseri, 4 Mich., 515.
716. But where, by its charter, a college was located at Spring Arbor, 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 legislative authority to remove to Hillsdale, and it could not be lawfully
removed without such authority, it was held that the subscription was
invalid.  Un[derwood v. Waldron, 12 MIich., 73.
717. Locality 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 Michigan.  Myers v.
Carr, 12 Mich., 73.
71S. Terminating by notice.  A contract 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 v. Aldrich, 10 Mich., 515.
92




CORPORATIONS.                       ~ 724
CORPORATIONS.
719. Their powers. Corporations have such powers and capacities as are given to them, and none other; and every abuse of such
powers is a violation of the law of their being, and a forfeiture of their
franchise. Attorney General v. Oakland County Bank, Wal. Ch., 90;
People v. Oakland County Bank, 1 Doug., 282. And see Orr v. Lacey, 2
Doug., 230; People v. River Raisin and Lake Erie R. R. Co., 12 Mich.,
389.
720. Location. Accordingly where a bank was located by its
charter at Pontiac, and it establishied an agency at Detroit, where the
cashier resided, and deposits 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; People v. Oakland County Bank, 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 the charter are void.
Orr v. Lacey, 2 Doug., 230; Bank of Micligan v. Niles, 1 Doug., 401;
Hurlbut v. Britain, 2 Doug., 191; Smith v. Barstow, 2 Doug., 155. Held,
therefore, that where a bank on discounting a bill of exchange corruptly received greater interest than it was authorized by its charter
to receive, the bill was void. Orr v. Lacey, 2 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 business. 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 cand Lake Erie B. R. Co., 12 Mich., 389.
723. Po Wier to  purchase  lands.  A corporation having
power to purchase and hold real estate for the purpose of their incorporation, 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 contrary is alleged and proved, that the purchase is for the legitimate use
of the corporation. Regents of University v. Detroit Youing 1Men's Society,
12 Mich., 138.
724. Tlhe seal of a corporation affixed 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. Denton,
Wal. Ch., 336.
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.
726. Acts of officers. A corporation is bound by the acts of its
officers de facto; and it need not be shown that they were regularly
elected in order to render their acts binding. Cahill v. Kalamazoo Mutual Insurance Co., 2 Doug., 124.
727. Power to make by-laws. Where the charter empowers 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 assessment thereon within thirty days-the money to be paid into the treasury of the company to meet past and future losses-held a lawful by-law.
Ibid.
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 nut tiel corporation were pleaded. Farmers and
Mechanics' Bank v. Troy City Bank, 1 Doug., 457. But it is now provided 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 under 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; Smith v. Virllage of Adrian,
I 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 presenti and unconditionally. It was not necessary
to make proof of the organization under the charter. Cahill v. Kalamazoo 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 the corporate existence of the company in an
action on the note. Ibid.
732. The transactions and acts of a corporation may be proved by
entries in its books. People v. Oakland County Bank, 1 Doug., 282.
733. Mortgage of franchises. The power of corporations,
independent of statutory provisions, to mortgage their franchises considered. Joy v. Jackson and Michigan Plan/k Road Co., 11 Mich., 155.
734. Certificate of stock promising payment. - A certificate of stock issued by a corporation in the ordinary form, except
that it contained a promise on the part of the corporation to pay interest thereon until the happening of a specified event, constitutes the
person to whom it is issued a stockholder and member in the company.
McLaughlin v. Detroit and Milwauzkee Railway Co., 8 Mich., 100.
735. Power of corporation over members. The corporation 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. Misnomer 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., 282.
73S. 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. Cahill v. Kalamazoo
Mutual Insurance Co., 2 Doug., 12 a; People v. Bank of Pontiac, 12 Mich.,
527.
740. Waiver of forfeiture. Unreasonable delay to take advantage 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. People v. Oakland County Bank, 1 Doug., 282. But see
the next case.
741. 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 Pontiac, 12
Mich., 527.
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. Ibid.
743. Forfeiture for insolvency.  The statute-Comp. L., ~
4854-making a year's insolvency a forfeiture, is applicable to corporations chartered before its passage. Ibid.
744. A failure to elect directors annually under the charter,
does not, it seems, dissolve the corporation; but the old directors continue in office until new ones are elected in their stead. Cahill v. Kalamazoo Mutual Insurance Co., 2 Doug., 124.
745. Assignment 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 River 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 incident to the general powers conferred upon banking corporations.
Ibid.
747. Dissolution in equity.  The acts providing for proceedings in chancery against corporations, and for the voluntary dissolution
of corporations-Laws 1837, p. 306; Laws 1839, p. 94; Comlp. Laws,
Ch., 145 and 146 —are not in the nature of statutes of bankruptcy applicable 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 be for the purpose of dissolving the corporation, but to protect the assets for the benefit of creditors.. The dissolution of the corporation is merely incidental. Fay v. Erie and Kalamazoo Rcailroad Bank, Har. Ch., 194.
96




COUNTIES.                       ~ 755
749. The jurisdiction of chancery over corporate bodies for the purpose of restraining their operations, or of winding up their concerns, is
based upon and controlled by the statutes.  The Court:has no suclh
jurisdiction under its general equity powers; and it will. not interfere
except where the case is fairly brought within the scope and object!bf
the statute conferring this special jurisdiction. Attorney-General v. Bank
of fMichigan, Har. Ch., 315.
COSTS.
750. Depend upon the statute, -Costs are -not awarded by
the common law, but depend entirely -upon "statutory provisions.
Where no authority is given by statute, there can rbe no taxation.
Booth v. McQueen, 1 Doug., 41.
~751. When plaintiff to pay.  A plaintiff who, by his declaration in the Circuit Court, claims an amount sufficient to confer jurisdiction, but only recovers a sum within the exclusive jurisdiction of a justice of the peace, must pay costs to defendant.)  Strong v. 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. People v. Township Board of Sprikn>wells, 12
Mich., 434.
COUNTIE S.
753. Organization of.  Fractional townships as surveyed by
the United States, are townships withinthe meaning (df 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. Rice v. Ruddiman, 10 Mich., 125.
754. Offleers of. A county may be created and have existence as
such, notwithstanding it has no county officers.  [MARTIN, Ca  J.]
Carleton v. People, 10 Mich., 250.
755. Where a new conty is created by setting off for that purpose
organized townships from existing counties, the supervisors of these
t$ownships,are thenceforth supervisors of the new county; their pow7                                      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.  [MARTIN  &
-MANNG, 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, [MARTI, CH., J.] Ibid.
747. Whether those persons can be de facto county officers who are
chosen at an election not authorized by law, quere. Ibid.
75S. Bay county. Construction of the statute authorizing its formation, Peoplev. Burns, 5 Mich., 114. The question of its organization having been submitted to a vote of the people, the questibn whether
it was ratified by the proper vote is one of fact. Craifpv. Grant, 6 Mich.,
447..
759. Liability of. A county is not liable for'the acts of itks1oard
of supervisors in the exercise of their legislative' power.: Larkin v.
County of Saginaw, 11'!ich.,'88.
760. The action of the board in voting money and" providing for the
erection of a bridge at'the expense of the county-i legislative in its
character; and though the bridge is erected under a contract with the
board, and under the personal supervision; of a corimittee of its menmbers, the county is not liable for damages' resulting to. at individual
by reason of defects in the plan. Ibi;d.
761. Removal of county seat. the law' which promvides for
submitting to the electors of a county; at" the township meetings, the
question of the removal of the' county seat - Comp. L., ~~351, 352,
358 —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 at a different time from the township meetings. Attorney- General,. Supervisors of St. Clair, 11 Mich., 63. [The statute h.s since been
amended. Laws of 1863, p. 30].
COVUNTY CLERK.
762. 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 clerk;'" it was held sufficient.  Calendar s.
Olcott, 1 Mich., 344.
COUNTY COURTS.
76.3. The County Courts, as they existed in 1848, had jurisdiction of
actions of ejectment. Wattles' s. Warren, 8 Mich., 77.
96




COURTS OF THE UNITED STATES.                  ~ 770
764. See the case of Stewart v. Hill, 1 Mich., 265, 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 adjournment, was too late to object to irregularities in the preliminary
proceedings on.the adjourned day.
COUNTY TREASURER.
765. Buying at tax sales. 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. Clute v. Barron, 2 Mich., 192..
766. Oath by deputy. The oath required to be taken by the
collector of taxes on returning delinquent lands, might, under the Statutes of 1838, have been administered by the deputy county treasurer
in the absence of the treasurer.  Malony v. Mahar, 1 M]ich.,, 26; 2
Doug., 432, same case. See also, Comp. L. ~379.
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 supervisors to receive the money, and the attorney presented it to the AuditorGeneral and applied for his warrant on the State Treasurer for the
amount. Held, that the order was sufficient. People v. Auditor- General,
9 iMlich., 141.
COURTS OF TIlE UNITED STATES.
76S. 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 Process Act of Congress of May 19, 1828, having been
made applicable to the, States subsequently admitted by the act of
Augurst I, 1842, is to be construed as adopting such laws of said States
on the subject as'were in force at the last mentioned date. Gorham v,
WiVNg, 10 Micih.,. 486
77t. When territorial courts ceased. 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, I Doug., 119.
99




~ 776                 CRIMINAL LAW.
-:.....
771. Transferring suits to. A citizen of another State being
sued in the State Court, caused the case 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 proceed 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.
Yawkey v. Richardson, 9 Mich., 529.
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, 2 Doug., 84.
773. Severable 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. Ingersoll, Har. Ch., 172.
CRIMINAL LAW.
1. OFFENSES AGAINST THE PERSON.
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. People
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 reasonable cause for it, that the danger is actual and imminent, although he
may turn out to be mistaken.: His guilt must depend upon the circumstances as they appeared to him. Pond v. People, 8 Mich., 150.
P776. Homicide in resisting an assault not made with felonious intent, is excusable where the danger to be resisted is to life, or of serious
bodily harm of a permanent character, and unavoidable by other 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
777. —defense of dwelling. A man assaulted in his dwelling
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 taking of life. Ibid. But a mere trespass will not
justify a homicide. People v. Horton, 4 Mich., 67.
77S.-defense of servant. The same circumstances which excuse 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.
78O.-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.  Manslaughter, 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., 320. See ADMIRALTY AND MARITIME JURISDICTION.
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 circumstances 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 kill must be found, and that under
circumstances which would make the killing murder. Maher v. People,
10 Mich., 212.
784. —malice. Malice aforethought is as essential an ingredient
of the offense 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 offense, it was
101




~ 79x                  CRIMINAL LAW.
held competent for the prosecution to show the state of feeling between
the prisoner and deceased immediately preceding such absence. Dilliln
v. People, 8 Mich., 357.
7S6. 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 v. People, 10 Mich., 372.
7S7.-provocation.f If a homicide be committed under the influence 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 recklessness of disposition, the offense is manslaughter only, and not murder.
Afaher v. People, 10 Mich., 212.
7SS. 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.
7S9. Whether the provocation was adequate or reasonable, and
whether a reasonable time had elapsed for the passion to cool and reason 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 that they had committed adultery the day
before; that he followed the person into a saloon in a state of excitement, 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
Xich., 1,
792. One who is the mere agent of the husband for the purpose of
detecting his wife's adultery, cannot justify or excuse the killing of the
suspected adulterer by proof of his previous adultery with the employer'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 the 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 Mich., 287.
794. A verdict of guilty of murder generally, without specifying
whether of the first or second degree, is erroneous. Tully v. People, 6
Mich., 273.
795. On an indictment for assault with intent to murder, it is immaterial whether the murder intended would, if consummated, have been
murder of the first or second degree. People: v. Scott, 6 Mich., 287.
796. R[ape. Carnal knowledge of the person of a female over ten
years of age, unaccompanied with any circumstance of force or fraud,
does not constitute the crime of rape, either at common law or by statute. Crosswell v. People, 13 Mich., 427.
797. Where therefore a man had carnal conneotion with a woman
over ten years of age, who was a willing participant in the act, it was
held not to be a rape, notwithstanding the testimony showed that she
had not at the time an intelligent understanding. Ibid.
79S.-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. McDonald, 9 Mich., 150; [Crosswell v. People, 13 Mich.,
427.]
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 capacity to give consent to carnal knowledge, and her consent does not
waive the assault. Ibid.
801. Mingling poison with 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 design, taken out of the operation of the statute. People v. Carmichael, 5
Mich., 10; People v. Adwards, 5 Mich., 22.
802. A person who engages in the prosecution of an unlawful design 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.
S03.-injury. Wherever there is a positive physical effect produced, 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. ibid.
103




i~ 811               - CRIMINAL LAW.
804. Exposing child: allegation of relationship, &c.
An indictment under ~ 5741 of Comp. Laws, which provides that "If
the father 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 sustained by the proof. Shannon v. People, 5 Mich., 71.
S05.-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 delivered 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. ibid.
806.-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 thechild 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 offense, and the exposure must be such as.
may subject the child to the hazard of personal injury. /bid.
807. —exposure. If the child be left at such time, in such place,
and under such circumstances, as would render a parent or other person
of ordinary prudence and humanity reasonably apprehensive of personal
injury to it, then the hazard may be said to exist, and it is an exposure
within the statute, and if accompanied with the intent wholly to abandon, the crime is complete. But if there be no reasonable ground to,
fear or apprehend such injury, then the exposure does not exist. Ibid.
808.-who may conmnit the offense. Any one receiving
the care and custody of the child from a parent, guardian 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 offense under said section 5741 on proof of
facts showingeonly that he counselled, aided or abetted the, commission
of the offense by others. Ibid.
2. OFFENSES AGAINST PROPERTY.
S10. Larceny: out of the State.  Whether the State can
lawfully provide for the punishment in Michigan of persons who, having committed a larceny in a foreign country, bring the stolen property
into this State, quere. Morrissey v. People, 11 Mich. 327.
811. If the statute for that purpose —Comp. L., ~ 5797-is valid7
whether an information under it is sufficient which charges the defend104




CRIMINAL LAW.                     ~ 817
ant in the ordinary form with a larceny committed in this State, quere.
Ibid.
1812.-description of property. In an indictment under the
statute of 1840, (p. 42, ~ 1), which provided for the punishment "of larceny, by stealing, of the property of another, any bank note, bank bill,"
&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.
S13. The word chattels in such an indictment denotes property and
ownership; and an allegation that bank bills were the goods and chattels of a person named, is a sufficient averment that they were his property. 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 be 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 particular 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,.though the punishment may be less than here mentioned.
And therefore larceny, though of property to the value of less than $25,
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 common law offense of receiving stolen property, 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, 2Mich.,
422.
816. An indictment under said section, for aiding in the concealment,
&c., is supported by proof of acts of the aider, which will assist the
principal felon in converting it to the use of the thief, or which will 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 be 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.  Durant v. People, 13 Mich., 851.
81S —possession not proof of guilt. Where one is charged
with receiving stolen goods knowing them to be stolen, the mere possession 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.
819. 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.
JMclKinney, 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 examination. Ibid.
821. 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.
822.-evidence of receipts. The account books kept in the
office of defendant during his official term, and purporting to show all
his receipts and disbursements as State Treasurer, are admissible to
show that the sums alleged to have been embezzled have not been
credited to the State; and this notwithstanding no part of the book is
in his handwriting. Ibid.
823. So also are his annual reports as Treasurer, printed by the
State printer under his direction. Ibid.
824.-treasurer indictable.  Said section 5771, which provides 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 Treasurer. Ibid.
825 —what is the treasury. The word " treasury " as used in
said section, is not to be understood in the sense of locality, as descriptive of the particular building within which the Treasurer keeps his
principal office or place of official business; but moneys are to be considered as in the State treasury whenever or wherever they are in
the official custody of the Treasurer, or subject to his direction and control. 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.
Ibid.
828. 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 embezzlement. Ibid.
829. —venue. As such an act might be done by the Treasurer
without at any time being personally present where the money happened 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. Ibid.
S30. —what is a payment to the State. Where the Treasurer received from a railway company several drafts for a tax.cldue 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 treasury; and it was not necessary that all should be paid before any part
could be regarded as in the treasury. Ibid.
831. Burglary: curtilage. A barn standing eighty feet from
a dwelling-house, in a yard or lane with which there was a communication from the house by a pair of bars, was held to be within the curtilage. People v. Taylor, 2 Mich. 250.
832.-deseription. 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 occupied with a dwelling-house,." with intent to commit a felony, an information which fails to describe the building entered as " not adjoining 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. Richards, 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.-merged in felony.  A conspiracy to commit a felony,
107




~ 843                  CRIMINAL LAW.
when executed, is merged in the felony; but a conspiracy to commit a
misdemeanor is not merged in the misdemeanor. People v. Richards, 1
Mich., 216.
S36.-indictment. In the indictment the agreement or combination must be set out, but the means to be used in executing the conspiracy 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.
S37. 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 generally 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 conspiracy. Alderman v. People, 4 Mich., 414.
S38. If there be a combination to do an act not in itselfunlawful, 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 v. Clark, 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 tbe 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 sufficient. People v. Clark, 10 Mich., 310.
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 notwithstanding 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 accomplished be expressed in words. Falsehood when deliberately acted is the
same as spolen falsehood. Ibid.
843. False pretences: intent. The act of procuring, by falsehood, the indorsement of a promissory note, is not, in itself, a false pre108




CRIMINAL LAW.                       ~ 850
tence within the statute, unless done with intent to defraud. The prosecution must therefore show something more than. the falsehood and
procuring the indorsement thereby, before a conviction can be had.
People v. Getchell, 6 Mich., 496.
844. Where an intent is made the gist of an offense, that intent
should be. shown by such evidence as, uncontradicted, will fairly authorize 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 to an amount- considerably larger than the two notes
but had refused to perform the agreement, and that the money obtained'on the notes was used in their business for their joint benefit, was adaissible, as tending to disprove the presumption of intent to defraud.
Ibid.
S46. 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.  People v. Tryon, 4 Mich., 665.
3. OpFFNSES AGAINST PUBLIC JUSTICE.
X47. 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 statement alleged to be false. People v. Collier, 1 Mich., 137.
84S. Where the indictment stated that ". it became and was material
to ascertain the truth of the matters hereinafter alleged to have been
sworn to"-stating what the defendant swore to-the averment was
held insufficient. Ibid,
S49. But a general allegation of the-materiality of the testimony is
sufficient; and it is Not necessary to set forth so much of the proceedings as will show i.tto be material. Hoch v. People, 3 Mich., 552.
850. Defendant was indicted for having falsely made oath that one
S. "did feloniously steal, take and carry away a rifle, of the value of
fifteen dollars, of the property" of defendant. It was objected to the indictment that. the matters set forth were not facts, but conclusions of
law; but the objection was held not well taken. Ibid.
109




~ 860                  CRIMINAL LAW.
4.  OFFENSES AGANST CHASTITY, MORALIrY AD DECENCY.
S51. 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 offense 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 broken off,. 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 seduction at any time within one year from such last intercourse. Ibid.
853. Incest: indictment.  An information for incest, which
charges the crime to have been committed with'one: I; " she, the said H.,
being then and there the daughter" of the acc.used, 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 v. 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. Jenness, 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. Ibid.
856.-proof of former acts. I n.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 habitually to indulge the criminal desire as opportunity might offer. Ibid.
857. Bigamy: proof -of marriage;s    Where the first marriage is alleged to have taken place in another State, proof of a valid
marriage according to the laws of t;it- 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 ihnocence 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 s.uch ease. Ibid.
859. Nor is a certificate of nmrriage;. or he'- record thereof, competent in a criminal case, where the deindantui   enlviqd Xto be eonfronted
with the witnesses against him. Ibid/
860. Bawdy houses. Keeping a house -ofiTM-fme- wa a "e'riminal offense" within the meaning of the constitution of 1835, which
declared that " no person should be held to answer for a criminal offense
110




CRIMINAL LAW.                      ~ 871
unless on presentment of a grand jury, except," &c. Sauyhter - People,.
2 Doug., 334.
861. Indictment is the appropriate remedy for this offense, both at
the common law and under the statute. Welch v. Stowell, 2 Doug., 832.
862.-abating. The common council of Detroit, under the power
given by the charter to prevent and suppress houses of ill-fame,. are not
authorized, by ordinance and resolution, to require the city marshal todemolish 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 Ibid..
864. Obscene publications: indictment. IS an indictment for publishing a bawdy and obscene paper, it is not necessary to
set forth the obscene matter on which the people rely for a conviction.
People v. Giracrdin, 1 Mich,,90.
865. Lewd. and lascivious cohabitation is a joint offense,
of which both parties must be guilty or neither.. Delany v. People, 10
Mich., 241.
866. And both must be joined as defendants in the same information or indictment, unless one of thU parties be unknown, or since dead.
Ibid..
867. But though boti must be jointl' charged,,the trials may be
separate; and one may be convicted and sentencedi before the other is
tried. Ibid.
4- FORGERY AND COUNTERFEITING.
868.. Coumterfeitilfg  coin: indictment. AD indictment
for knowingly' thving; i -possession instrumients adapted and- designed
formaking coeaterfei.t ci n,. to wit, Mexican dollars, with intent to use
the same, need! not. allege that the defendant was not employed in the
mint of the United State. Barlan v. People, 1 Doug., 207.
869. —States may -puntsh. The power vested in Congress by
the Federal; Constitution to provide for the punishment of counterfeiting the current' coin of-the United States, is- not, ex lusiwe Tbut mWti be
exercised by the several States concurrently wCitli obngres,. Ibid..
870. An indictmentfor violating the'sthtut-;of t&he;State against such;
counterfeiting, properly charges the offense as committed against the
sovereignty of the people of the State. Ibid.
871. Forgery, &c.: uttering. _ The presentation of a forged
draft or order for money, to the person to whom it purports to be
directed, for payment thereof, is an uttering and publishing, notwith111




~ 880                   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.-possession of bills with intent, &c.i Section 5809
of Comp. L., which prov.ides 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 consists in having in possession a counterfeit bill with intent to utter or
pass the same as true; the other, in having it in possession, with intent
to sell or otherwise dispose of it:as a counterfeit bill, to be rendered current, or uttered or passed as trute. People v. 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
banks is inadmissible. Ibid.
875. The words "as true," as used in said statite in defining the first
of said offenses, refer both to "the intent to pass" and to "render the
same current;" and an' indictment charging the possession of such bills,
""with intent to utter and pass the same," omitting the words'as true,"
is insufficient. People v. Stewart, 4 Mich., (655.
876.-indicetment: setting forth instrument.  The act of
1855 relating to indictments-Comp. L., ~ 6048-obviates 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 assimilated. 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 that its bills'pass
curreAt in the business transactions of the day, is admissible as tending to Rshow that there was defacto a bank "engaged in the business of
a bank." Jennings v. People, 8 Mich., 81,
879.. Being admissible, its weight is for the jury, who may be satisfied with it. Ibid.
880. An averment in the indictment, that the bank whose bills are
counterfeited'is an incorporated company, in a place and State mentioned, is equivalent to an averment that it is established in such State.
People v. Stewart, 4 lMich., 655.
112




CRIMINAL LAW.                         ~ 888
5. OFFENSES AGAINST THE PUBLIC HEALTH.
8S1. Nuisance: what 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.
S83.-evidence of former acquittal. On trial for-nuisance 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. Crippen v. People, 8
Mich.,'117.
84.-judgment; errors in.  Verdict of guilty. being rendered 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 error will 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.
S86. But the errors assigned in the case being all based 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 PUBLIC 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 interestedmin'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. People v. Wells, 8 Mich., 104.
888. Selling liquors. Indictment for selling whisky without license, alleging it to be spirituous liquor, sustained under R. S.
1838, p. 203, ~.. People v. Webster, 2 Doug., 92.
8                                     113




~ 898                  CRIMINAL LAW.
SS9. The pe-nalty for selling without license, might, under the Statutes of 1846, be recovered by indictment; the penalty being $100. Peop.e v. Hart, 1 Mich., 467.
890.-election of penalties. Where suit was brought for the
penalty, and the plaintiff declared in the form given by the statute, it
was held that he could not, on the trial, be compelled to elect the penalty or penalties he would seek to recover, Smith v. Village of Adrian,
1t 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 penalty. Ibid.
S92. —under Statutes of 1846. To recover the penalty given
by R. S. of 1846, ch, 41, ~ 1, it was not necessary to show that defendant assumed to act as tavern keeper or common victualler. Ibid.
893. In an action for such penalty, 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 chapter. Ibid.
7. OFFENSES AGaINsT ELECTION LAWS.
894. Inspectors refusing to receive vote. Since the act
of:1859 requiring the registration of voters, aa Infbrmatibn  against
inspectors of an election for refusing to adminiser to a person offering
tb vote one of the oaths prescribed. by Comp.. L,,,W 49, is fatally defecilveif it fails to allege that the nanme-ofithe persooaffieringto votAe was
duly re-gitered.. Wattles v. Peo0pe,,18 Mich., 446..
R&. -isELLAMO9 MATTERBS:
995. Foreign  ofienses. Whether the frauduisnt~ acts, offi'
debtor, occurring without the State,.can  be made the bi  of proceed,
ings against him in this State, undr:' the Fraudulent' Debtor's Act,
quere. Bromley v. People, 7 Mich., 472.. See also, ante 781,810, 811..
896. As a general principle the criminal laws of no nation can operate beyond its territorial limits; and to give any government the right:
to punish any act or transaction as a crime, it must have occurred
Within those limits. Pease v. Tyler, 7 Mich., 161.
897. Non-performanee of official duty. Indictment for
non-performance of an official act, must set forth such a state of facts as
under the law imposed upon defendant the duty to perfirm the act.
Wattles v. People, 13 Mich., 446.
898. Arrest for felony. A constable who has knowledge thats
114




CRIMINAL 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 20th day of April, instant, enter the possession of C., and wrongfully and feloniously take and drive away from
the possession of said C. forty-five 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.. Washburn v. People, e10 Mich. 372; HiceAs.
People, 10 Mich., 395.
902. It is not necessary that the information sshiould show on its face
-that a preliminary examination had been had or waived. If the defendant intends to insist upon the want of such. examination, he should
take the objection by plea in abatement,.or-iy motion to quash based
upon affidavit. Ibid.
903. But where an examination has, been had before a magistrate
on a criminal charge,. and the accusedi is discharged, an information
cannot afterwards be lawfully filed against him for the same offense.
Morrisey v. People, 11 Mich., 327
904. And if an information, is: fil-edi after such examination and discharge, the defendant may prove those facts in bar of the prosecution,
under the plea of not guilty. Ti.d.
905. The examination is designed to accomplish, to some extent, the
purpose of a presentment by a grand jury; but not that the complaint
or warrant shall stand in the place of a formal presentment, nor that in
the Circuit Court the prosecuting officer should be limited by it in the
mode of charging the offense. So long as he does not undertake to proceed against a person for a different transaction than that to which the
examination relates, it is competent for him to put his Information in
such form as, in his opinion, will enable him to try the offense upon the
merits in the way most effectually to advance the ends of justice.
Annis v. People, 13-Mich., 511.
115




~ 915                 CRIMINAL LAW.
906. Where two or more are jointly complained of and bound over,
separate informations may be filed against them in the Circuit 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 he "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. Washburn
v. People, 10 Mich., 372.
90.. Grand jurors: challenges. Grand jurors drawn and
appearing upon summons, are presumed to be legally qualified and
properly returned; and the Court will 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. Thayer v. People, 2 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
to be brought before the jury. Ibid.
910. Resummoning grand jury. Where a grand jury have
finished their business, and been dismissed 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 discharge;. and grand jurors who were originally summoned, but did not
appear, may be resummoned, and on appearing and being sworn and
impaneled, may act with their fellows. Findley v. 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. Collier, 1
Mich.j 137.
913. Where a statute, enumerates several elements as combining to
create a crime, the crime cannot properly be described without including all those elements. Koster v. People, 8 Mich., 431.
914.-one bad count.  Where an indictment contains two
counts, each for the same offense, one of which is bad, the other, being
good, is sufficient to warrant a general verdict of guilty, and judgment
thereon.  Shannon v. People, 5 Mich., 71; People v. McKinney, 10
Mich., 54.
915.-amendendment. 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 that the alteration
116




CRIMINAL LAW.                      ~-920
in a material point would vitiate the indictment. Held, that this ruling
was erroneous. People v. 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 the cause was tried and defendant acquitted
on the indictment as amended, the acquittal would be a bar to a subsequent prosecution for the same offense, provided the indictment, as itstood 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 evidence-as lead immediately and of necessity to a single and inevitable
conclusion, the omission to draw that conclusion will not vitiate the
pleading. Evans v. People, 12 Mich., 27.
91S. 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 sufficient to sustain the conviction. Ibid.
919. Election  of offenses. 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 thle 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 prosecutor 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. Jenness, 5 Mich., 305.
920. Charging 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 concerned 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 belonging to such class, or standing iii such relation, must set out the
aiding and abetting, in which alone the crime consists, and which, in
117




~ 928                  CRIMINAL LAW.
such case, is the only principal offense within the meaning of this statute. Shannon v. People, 5 Mich., 71.
921. Plea in abatement. A plea in abatement to an indictment, that states several distinct facts having no relation to or dependence 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. Findley v. People,
1 Mich., 284.
922. Jury. It is not error for the Court, after the jury have retired 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.-distinctions between challenges. 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 exceptions. 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 showing partiality. A person called as a
juror is. presumed to be qualified and impartial; and the party challenging 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 reasonable doubt. Ibid.
926.-opinion as cause 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.presumption 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.
928. Accomplices as witnesses.  The credibility of an accomplice, like that of any other witness, is exclusively a question for
the jury, who may convict on such testimony alone, without confirmation. Peoplev. Jenness, 5 Mich., 305.
118




CRIMINAL LAW.                      ~ 935
929. An accomplice who consents to become a witness for the people on the trial of his associates, must disclose all that his associates
may have said or done in relation to the offense, 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 co-defendant a witness. Under act No. 125
of 1861, the wife of a defendant in a criminal proseeution, may be examined as a witness on behalf of a co-defendant of her husband. Moreissey v. People, 11 Mich., 327. For-the former rule see Pullen v. People,
I 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 v. 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 make 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 statements 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 v. People, 10 Mich., 212; Durant vPeople, 13 Mich., 35t  And it is error for the Court to instruct the jury
that where it conflicts with the testimony of an unimpeached 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 reference 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
been allowed; Anniesv. 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. Exceptions before sentence. A bill of exceptions in a
criminal case, being signed by the Judge and filed with the clerk, becomes, when the case is brought into the Supreme Court by writ of
error, a part of the record for review in that Court. Shncrnon r. People,
5 Mich., 36.
937. Convictions in the Recorder's Court of Detroit, for offenses
against city ordinances, cannot be brought before the Supreme Court
for review on exceptions before sentence, under Ch. 197 of Comp. L.
People, v. Jackson, 8 Mich. 110.
938. 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 the Supreme Court for review before sentence,
that Court has no power to admit the defendant to bail. People v. MeKinney, 9 Mich., 444.
940. Sentence. Under the statute which requires Courts sentencing offenders to the Reform School, to certify to the keeper thereof
the age of the person sentenced as nearly as can be ascertained by testimony, a Court which has certified the age of a convict to be under six
teen years, must be conclusively presutmed, in all collateral inquiries',
to have performed its duty correctly. Matter of Mason, 8 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. Elliott v.
People, 13 Mich.,, 365.
943. Sentence in excess of,authority. 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 prisoner is sentenced to imprisonment for a longer period than is allowed
by law, the Supreme Court on error can only reverse the judgment and
discharge the prisoner. Elliott v. People, 13 Mich., 365. See Crippen
v. People, 8 Mich., 117.
944. Illegal commitment.  A fine was imposed by a justice
of the peace, with imprisonment for ten days in default of payment.
Payment not being made, the justice issued his warrant, dhiecting that
120




DAMAGES.                        ~ 94W9
defendant be imprisoned until the fine was paid, or until he was discharged by due course of law. Held, that as the warrant did not follow
the judgment, it was clearly in excess of jurisdiction, and void. LaRBe
v. Roeser, 8 Mich., 537.
CURTESY.
945. The legislature has the power to cut off the right of curtesy
initiate before it becomes vested. Hathorn v. Lyon, 2 Mich., 93. [See
Comp. L., ~~ 2803, 3291, and the subsequent law of 1855,~ 3292, et
seq.]
DAMAGES.
946. General rule in actlons 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.  Clark v. Moore, 3 Mich., 55. See Burrill v. X.
Y and Saginaw Solar Salt Co., 14 Mich.
947. Entire  sale of goods only  a part delivered.
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 except the contract of sale, it was held no ground for reversing the judgment 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.
94S. Purchase 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 designation of the use to which the cordage was to be put, being merely to designate the quantity to be furnished, and not an undertaking that the
vendee should have it for that purpose, the vendee could only be allowed as damages for non-delivery the difference between the contract
price and the market value. Ibid.
949. Vendor refusing to complete sale. Plaintiffs bought
hogs of defendant, paying ten dollars down, and were to pay the balance 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 contract of sale was
not made with reference to any such extraordinary liability, the plaintiffs could only recover the ten dollars paid and interest thereon.
Cuddy v. Major, 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 surrounding circumstances, which shows an intention on the part of the vendor
to assume an enlarged engagement, a wider responsibility than is assumed by the vendor in ordinary contracts for the sale and delivery of
merchandise. Ibid.
951. Interest 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.
952. 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 manufacturer, 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 compensation. The question whether the labor has enhanced or diminished the
value of the materials is necessarily one for the jury in estimating the
damages.  Rosmer 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 November. Defendants carried but five, as follows: One in August,
one in September, one in October and two in November. 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 agreement 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 performance for the cargo which they failed to carry in October: and that
Tilaintiffs 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. Liquidated 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. Jaquith 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. I 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 apparent 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 contract, the amount of damages which shall be paid on a breach, and
adopts their estimate as the best and most certain mode of ascertaining the actual damage, or what sum will amount to a just compensation. Ibid.
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.
95S. 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 enforced 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 dollar per thousand 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.
otherwise the nearer the contract was completed the greater the
damages to be recovered; while if the party should fail to draw any
of the timber there could be no recovery. Davis v. Freeman, 10 Mich.,
188960. Where by the terms of a contract a sum is mentioned as liquidated 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. Litchfield 10 Mich. 29.
961. General rule in torts. Except in those actions where
punitory or exemplary damages may be given, and those whose principal 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. Latitude 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 enable 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 plaintifi 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. Ibid.
968. Good faith of defendant. If trespass was committed
while the defendant was acting in good faith, and under an honest belief that he had a legal right to do the act complained of, the plaintiff
is 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 damages which result or not. He must be held to contemplate all the damages which legitimately follow from his illegal act. Ibid.
970. Landlord destroying demised premises. Trespass
for destroying a store leased by plaintiff 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 trespass, but that he might recover for those made to counteract an attempt upon the property'by defendant before its final demolition. Chandler v. Allison, 10 Mich., 460.
971. It was competent 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.
97-2. 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.
973. And where the declaration alleged that plaintiff's store was
rendered uninhabitable, and that plaintiff was, up to -the comnlencement
of the suit, hindered and prevented Xrom 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. Treble damages in trespass. Section 4717 of Compiled
Laws 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




X 982                  DAMAGES.
aggravation of the eviction, 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 eviction only. Thayer v. Sherlock, 4 Mich., 173.
975. The statute giving treble damages against one who intentionally cuts down or carries off the timber, &c., from the land of another, was not framed to protect mere possessory rights, but to give
the owner of the fee the right to sue, under the form of trespass, for
injuries to his inheritance. It is, therefore, not a defense to the actiotm
that defendant had disseized the plaintiff, though it may prevent treble
damages. Achey v. Hull, 7 Mich., 423.
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. Ibid.
977. Action by one Joint owner.  Where the proof given
in such action without objection only shows plaintiff to own an undivided half of the premises, but no plea in abatement has been interposed, the non-joinder of the other as plaintiff only goes to apportion
the damages. And on error, where it is not objected that entire danm,
ages were assessed, the Court must presume they were apportioned.
Ibid.
978. Trover: sale by defendant as evidence of value.
Where the defendant was sued in trover for logs which he had cut
without authority on plaintiffs 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. ISmithv. -Mitchell,::2 Mich., 180.
98-O.-deductinsg pIor liens.  Trover by assignee for conversion 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 damnified the plaintiff, and had not converted
the goods. Ibid.
981. So also is evidence admissible to show that goods levied on
were held and sold for railroad charges which were a prior lien.
Ibid.
982.-adding formerJudgment.  One whose property had
been wrongfully taken from him replevied it, but being non-suited in the
126




DAMAGES.                        ~ 988
replevin suit, defendant had judgment against him 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. -Haviland. Parker, 11 Mich., 103.
983. Trover for note. Where defendant has converted a promissory note belonging to plaintiff, and the Court is satisfied that the
note was available at its nominal amount to the plaintiff, he may recover that amount, notwithstanding the maker is proved not to have
property from which collection might be enforced by execution. Rose
e. Lewis, 10 Mich., 483.
984. Refusing to obey subpoena.  In an action for damages
occasioned by defendant's non-attendance as a witness in obedience to a
subpoena, plaintiff is entitled to recover any damages immediately consequential upon such non-attendance; like that occasioned by the postponement of the trial in consequence of the failure to attend. Prentiss
v. Webster, 2 Doug., 5.
985. Evidence in mitigation. In an action of tort, everything that may properly be considered by the jury in mitigation of
damages, may be given in evidence under the general issue. Delevan 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 appropriate 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.  Page o.
3itctea. 13 Mich., 63,
987.; TLhis is so even though there is evidence that the confinement
was only~ nominal,. an  to.a considerable extent under the plaintiffs
own cont'olE. The jry' are to judge of all the facts; and if they find
that he was his own jailbr-ih aw voluntary martyrdom, he has no substantial'grievance to complain of. Ibid.
958-.. Allegation of spe;ia!,; damage.  Action for false imprisonment, by one who had been arrested on a void execution. The
declaration alleged that plaintiff wae greatfl hindered and prevented
from performing and transacting his necessary-affairs and business, and
from engaging and- embarking inl 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-occasionally called him out of the county, and that he was applied to!tWic6to go out of the county after he had given bond. Held that the avert127




'~ 995                       DEED.
ments in the declaration did not warrant this evidence of special damages. Fuller v. Bowlker, 11 Mich., 204.
9S9. But the arrest in such case being void, and the bond void,
plaintiff cannot recover damages for remaining on the jail limits according to the terms of the bond. Ibid.
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 adoption of that dedication is just as essential'to give them a public character, for any other purpose, as to give them that character as ways.
Tillman v. Peolale, 12 Mich., 401.
See further the titles TowN PLATS, AND WAYS.
DEED.
991. Without witnesses. A  deed without subscribing witnesses 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.
Dougherty v. Randall, 3 Mich., 581.
993. Parties. A deed to " A., administrator of the estate of B.,"
-and to his successors and assignees for ever, where no express trust appears in the deed, and the estate is coupled with no conditions, conveys
the legal interest in the land to A., who can convey the. same without
any license of the Probate Court for the purpose.  Little v. Lesia, 5
Mich., 119.
994. Execution by attorney. To make a valid deed under a
power of attorney, 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. Davenport v. Parsons, 10 Mich., 42.
995. Where a deed purported to be made by attorneys under a
power from the two grantors, and there was some testimony thata joint
power had existed, but it was not given in evidence, and only a separate power 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.
128




DEED.                       ~ 1003
996. Deliverj in escrow. A deed cannot be delivered to the
grantee in escrow. If delivered to him, whatever be the form of words
accompanying the delivery, it is absolute, and the deed takes effect at
once. Dawson v. Hacl, 2 Mich., 390.
997. Delivery-presum1ption 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. Tyler, 12 Mich., 839.
998. Possession of the deed is prima facie evidence of its delivery.
Dawson v. Hall, 2 Mich., 390.
999. Description. A deed describing the lands 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. Daily v. Litchfield, 10 Mich.,
29.
1000. Abbreviations.. A deed is not invalid because of the description of the lands being in figures, aid well understood abbreviations. 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 held that such exception was not void for uncertainty, but would be understood as referring to the only mortgage
proven in the case. Cooper v. Bigley, 13 Mich., 463.
1002. Mistaken description. Land was described as the east
half of 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 Lo-gan,:and there were two sections
twenty-one-one in townshipsix 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. lees v. Kimball, 1 Mich., 308.
1003. Where one part of the description in a deed is false and'rpossible, but, by rejecting that, a perfect description remains, such
9                                    129




9 1011                       DEED.
false and impossible part should be rejected, and the deed held good,
Anderson v. Baughmnan, 7 Mich., 69.  See Johnstone v. Scott, 11 Mich.,
232.
1004. A deed or other written instrument is to be construed so as to
render it valid and effectual, rather than void. Anderson v. Baughman,
7 Mich., 69.
1005. 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. Ibid. 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 consideration; and the situation of the parties, and the subject matter of
the transaction may also be taken into consideration. Paddack v. Pardee, 1 Mich., 421.
1007. If the construction is doubtful, it is to be construed most
strongly against the grantor. Cicotte v. Gagnier, 2 Mich., 381.
1008. A plat referred to in a deed may be referred to for the purpose of giving a construction to it. Paddack v. Pardee, 1 Mich., 421.
1009. Monuments to control. In the construction of grants
both course and distance must give way to natural or artificial monuments or objects; and courses must be varied, and distances lengthened or shortened, so as to conform to the natural or ascertained objects 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.
Bruckner's Lessee v. 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. Ferry, 14 Mich.
1010. Grant ofr water. 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 authorize 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-four hours, to drive machinery requiring more
than fifty square inches to propel it. Paddack v. Pardee, 1 Mich., 421.
1011. Owners in common of land upon which a mill had been situate (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 mill site was conveyed to one exclusively. He/d, that
he thereby became entitled to the water power exclusively, unless a
130




DEED.                         ~ 1018
contrary intention clearly appeared from the conveyances.  Mandeville.
v. Comnstock, 9 Mich., 536.
1012. Town lots: platunot 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 recorded is to be rejected as faldsa demonstratio.  Johnstone o. Scott, 11
Mich., 232.
1013. Grant limited to the operative words. Where
the operative terms of a grant are confined to one parce!lof 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. Ryai v. Wilson, 9 Mich., 262.
1014. A deed by which the grantor conveyed to his son the onehalf of his farm, "consisting of forty acres more or less, namely: The
N. E. quarter of the N. E. quarter of section 12, 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. E. quarter-ofseeein12;,
for and during his natural life, and after his decease the said N. W.
quarter of the N. E. 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 lan d bounded on a
stream, carries with it the bed of the stream to the center, unless a con-i
trary intention clearly appears from the conveyance itself.  Norris v.
HEil, I Mich., 202.
1016. 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 beneficial private use, but:-subordinate to the paramount public right of
navigation, and the other public rights incident thereto. Rice v. Ruddiman, 10 Mich., 125.
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, company's purchase," will not convey a street on the plat which bynonuser had reverted to the company,  Waner v.:Blanchard, 3 Mich., 11.
1018. Execution out of State. Under the act of April 12,
1827-Code 1827, p. 258; Code 1833, p. 281 - the record of a deed acknowledged in the State of New York, in conformity with the laws of
that State, with the acknowledgment certified by the officer taking it,
121




~ 1026                      DEED.
in his official capacity, is evidence, without proof of the official character of the person taking the acknowledgment, or the genuineness-of his
signature. Ives v. Kimball, 1 Mich.,, 308;! GaFpin 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, therefore, essential. Galpin 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. - Harrington v. Fiskh, 10 Mich., 415.
1021. By assignee in bankruptcy. The deed of an assignee
in bankruptcy, containing a copy of the decree declaring the bankruptcy, which decree recites the appointment of the'assignee, is sufficient under the law of Congress which prescribes what the deed shall
contain. Ibid.
1022. Restricting use of premises. One conveying an easement in water may restrict the use thereof to such purposes as he may
specify in the grant. Mandeville v. Comstock, 9 Mich., 536.
1023. Restraint upon alienation. A covenant in an indenture conveying a fee, that the grantee will not. alien without the grantor's consent, is void. C~ampau v. Chene, 1 Mich., 400.
1024. The healing act of. 1861. 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 conveyance for all purposes, it was executed according to the laws of. the
State where the execution took place, as well as regularly acknowledged. And these facts cannot be presumed without evidence. Brown
v. Cady, 11 Mich., 535.
1025. In the absence of a statute authorizing it, the record of a deed
is not primary evidence of the existence andgenuineness 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 does not render it of any
validity except for notice.- Ibd.
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 partnership. 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 pro132




DETROIT CITY                     ~ 1033
perty, was not affected 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. Adars v.; Bradley, 12 Mich., 346.
DETROIT CITY.
1027. Conveyances by the Land 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 DMich,: 176. [See the two
cases of Tregent v. Whiting, and Ready v. Iearsley, 14 Mich., as to conveyances by the Land Board, and especially as to the " Trust Deeds,"
so called.]
1028. The plan of the city, when made, was liable to modification by interfering claims and reserves, and the Land Board had
power to adapt it to contingencies when necessary. Ibid.
1029. Vacating public grounds. Where the common coun
cil proceeds to vacate public grounds, under the charter of 1857, it is
not necessary that they should specify in the resolution any subsequent
use to which they may contemplate putting the grounds. Hinchman v.
City of Detroit, 9 Mich., 103.
1030. 1Nor 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 contemplated improvement. Ibid.
1031. Licenses. The ordinance of the common council, which
provides that no person shall keep: a ferry or boat for transporting persons and property across to the Canada shore without a license therefor
from the mayor, and imposes a penalty for its violation, -is a valid ordinance. Chilvers v. People, 11 Mich., 43.
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. Ibid.
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 demands from those who will not sell in the public markets, for the
additional labor of its officers 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., 425.
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 v. City 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 effect,
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. Chcffee 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 affected
by.a transfer to the sinking fund of the balance standing to the credit
of such sewer fund. Ibid.
103S. 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. Ibid.
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
the collector for 1855-6 was not entitled to collect from the city a percentage for his fees on that portion of the taxes returned uncollected.
Kelsey v. City of Detroit, 7 Mich., 815.
1041. The act of 1853, p. 145, ~ 62-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 v..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 e. 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 commissioners 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. Hate v. Houghton,
-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 his own name.
Ibid.
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 declared by the council. People v. Hartwell, 12 Mich., 508. See Williams
v. Mayor, &c., of Detroit, 2 Mich., 560.
DIVORCE.
1047. Wife's property. Under the Statutes of 1838, on a divorce 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
Comp. L., ~ 3239.
135




1 057                    DIVORCE.
104S. Non-resident defendant.  The Statutes of 1838 required a different 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 other cases gave the Court no jurisdiction to decree
a divorce. Freeman v. FPreeman,' 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 opinion on them, with the testimony taken.
The object is to guard against collusion by the parties; and the master
in addition to the questions asked by the complainant, should examine
the witnesses himself, that he -may give his opinion understandingly..Emmons v. Emmons, Wal. Ch., 532.
1050. Withdrawal of answer. Where, in a divorce suit,
an answer is filed and subsequently withdrawn, no divorce should be
granted without some satisfactory evidence showing that the withdrawal was voluntary, and at the same time not collusive. Leavitt v.
Leavitt, 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. Sawyer v. 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 temporary alimony, and to compel the husband to furnish her with pecuniary
means to prosecute or defend the appeal. Goldsmith v. Goldsmith, 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. Ibid.
1057. Modifying decree for alimony.  The statuteComp. L., ~ 3249-which provides that, after a decree for alimony, the
136




DONATIO CAUJSA MORTIS.                  ~ 1062
Court may, from time to time, on the petition of either of the parties,
revise and alter such decree, &c., must be construed as only authorizing the change on new facts thereafter transpiring, which are of such
a character as to make the C:hange 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 iegative any consent to be married, without reference to previous inducement. The common cases are duress,' surprise or stratagem in procuring 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. Leavitt v.
Leavitt, 13 Mich., 452.
1059. 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 subject 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 anything on the subject, he based his sole claim to relief. Several children
had been born 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. High, appellant, 2 Doug. 515.
DONATIO CAUSA MORTIS.
1061. What sufflcient. 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
cause mortis. Second N.ational Bank of Detroit v. Witliams, 13 Mich., 282.
1062. The check of a third person which is given cazusa mortis,
though invalid at the time for want of a sufficient stamp, if subsequently stamped according to act of Congress of June 30, 1864, is
thereby made valid from itsinception so as to supportthe' gift.:Gibson
s. Hibbard, 13 Mich., 214.
137




~ 1073                     DOWER.
DOWER.
1063. In wild lands. In this state a widow is entitled to
dower in wild lands. Campbell, appellant, 2 Doug., 141.
1064. Under Ordinance of 1787, a widow was entitled to
dower, as at common law, in all the lands of which her husband was
seized during coverture. May v. Rumney, 1 Mich., 1.
1065. Non-residents. The widow of a non-resident of the State
has dower in those lands only of which her husband died seized. Comp.
L., ~ 2792. Pratt v. Teft, 14. Mich.
1066.' Statutes of limitations, nowever broad and comprehensive, do not apply to dower, unless they expressly name, or by
necessary implication include it. Dower was not within the limitation act of November 5, 1829, Code 1833, p. 408. May v. Rumney, 1
Mich., 1.
1067. Thd husband'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. Tildman, 1 Mich., 262. See also, May
S. Specht, 1 Mich., 187.
1068. 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 performance. Richmond v. Robinson, 12 Mich., 193. See Weed v. Terry, 2
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. Cranson v. Cranson, 4 Mich., 230.
1070. In mortgaged 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 v. 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 ~ 2777 Comp. Laws. Ibid.
1072. The deduction maybe made when the proceeding for the recovery 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.  Camnpbell, appellant, 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 1857 and 1859.  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 v. Rich, 12 Mich., 414.
1076. Saving clause in act of 1859. The saving of "any
engagement or undertaking heretofore entered into by the commissioners," 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. Winslow, 2 Doug., 68, and Wal. Ch., 340.
1078. 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 decreed. Tate v. Whitney, Har. Ch., 145.
DWELLING HOUSE.
1079. What 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 buildings within the. curtilage, if within a space no larger than that usually
occupied for the purposes of the dwelling and customary outbuildings.
Pond v. People, 8 Mich., 150.
EJECTMENT.
1080. Who to be defendant. The person in actual possession 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.
1081. By mortgagee, is now forbidden until after foreclosure, by the statute of 1843 —Comp. L., ~ 4614. But this statute
does not apply to mortgages previously given. Muindy v. Monroe, 1
Mich., 68; Stevens v. Brown, Wal. Ch., 41; Blackwood v. Van Vleet, 11
Mich., 252.
1082. Venue. The Circuit Courts have power to order a change
of venue for cause. Campau v. Dewey, 9 Mich., 381.
1083. Recovering for improvements. Where a claim is
filed under the statute-Comp. L.; ~ 4603-for the value of improvements made by defendant on the premises in controversey, the'ecase
may be tried by the Court without a jury, if no jury be demanded.
Rawson 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 estinate
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 sufficient that thedie 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 entered. Ibid.
1087. The plaintiff has his election to take judgment for the pos140




ELrCTIONS.                     ~ 1096
session of the premises subject to the obligation to pay for the improvements, or for the value independent of the improvements. But he is
bound by his election once made. Ibid.
ELECTIONS.
lOSS. Canvassers' statement only prima facie evidence. The statement required by law to be made out by the canvassers, 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 Cleve, 1 Mich., 362.
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. People v. Tisdale, 1 Doug.,
59; People v. Van Oleve, 1 Mich., 362; People v. Higgins, 3 Mich., 233.
1091. The intention of the 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. Tisdale, 1
youg., 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. Mistake in depositing ballots. An elector is not to
be deprived of his vote, either by the mistake or fraud of theinspector
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. Ibid.
1096. Where, therefore, a city and. State election were both held at
the same time, under the charge of the same inspectors, and seven bal141,




~ 1102               EMINENT DOMAIN.
lots for city officers were found at the clksing of the poll in the State
box, and the circumstances of the case madtit 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 candidates, 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.
1098. Preserving ballots. The failure of the inspectors to
keep the ballots in the manner pointed out by the statute, will not affect
the rights of persons for whom they are cast. People v. Higgins, 3 Mich.,
233.
i099. 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 the election, 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 requiring the notice to be given was directory merely. People v. Hartw dl, 12
Mich., 508.
1100.'Elections 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, 13 Mich., 424.
EMINENT DOMAIN.
1101. Taking lands for railroads. The territorial legislature had power to incorporate railroad companies, and to authorize the
appropriation of private property for their purposes, without the consent 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. Swan
v. Williams, 2 Mich., 427; Mercer v. Williams, 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: GENERMAL PRINCIPLES.              ~ 1109
land is in the nature of a trust for public use, subject to the supervision
of government. Swanv. Wiliams, 2 Mich., 427.
1103. Making compensation. Land may be 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 may be constituted without the intervention of the owner of the land. People v. Michiqan Southern R. R.
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. Ibid.
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. Ibid;
Smith v. McAdam, 3 Mich., 506.
1106. Notice 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 takenthe 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 corporation had, in good faith, obtained an assessment of damages for land
needed for their road long:before they wanted the use of it, and afterwards, 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. Williams, Wal. Ch., 85.
EQUITY: GENERAL PRINCIPLES.
1. WHERE THERE IS A REMEDY AT LAW.
1108S. 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 discussed in Wales v. Newbould, 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
127




~. 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. Complainant, 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. Nicwhols, 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 circumstances 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 v. Woodworth, Har. Ch., 355.  See
Weeler v. Cvlinton Canal Bank, Har. Ch., 449
1111. If relief is prayed which cannot be had at law, that is sufficient to confer jurisdiction. Rowland v. Doty, Har. Ch., 3; Waes  v.
NYewbould, 9 Mich., 45.
1112. How 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 jurisdiction, the Court will take 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-danaurgrer, or claims the benefit of
it by his answer. Witiam#:-v. Maiyor,, -.,-, f 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 v.. Nichols,
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 nothing to prevent their establishing it as fully at law as in equity, it
was held that equity. would.not interfere on their application, but
leave them to establish their defense at law.  But bill being fied,
and the defendant, instead of demurring, having submitted to answer, 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
-. Palmner, 13 Mich., 367.
1115. Election of remedies. A party defrauded in a contract
14P




EQUITY: GENERAL PRINCIPLES.                ~ 1124
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 resort to an action on the case for damages. If the condition of the property has 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. Carroll v. Rice, Wal. Ch., 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 judgment, he was required to make election in which Court he would proceed. Webb v. tilliaims, Wal. Ch., 452.
1117. Concurrent jurisdiction.  Equity  has concurrent
juridcliction with the Courts of law in cases of fraud. And where the
remedy at law is difficult or doubtful, equity will entertain jurisdiction.
Wheeler v. Clinton Canal Bank, Iar. Ch., 449.
1118. Jurisdiction for one purpose retained for another. Where equity has acquired jurisdiction for the purpose of
granting.an injunction, it may retain the suit for the purpose of awarding damages to complainant. Brown v. Gcardner, Har. Ch., 291.
1119. So where a bill 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 damages to complainant. Carroll v. Rice, Wal. Ch., 373.
1120. And where the Court had determined that the equitable title
was in complainant, it decreed a surrender of the possession to him, instead of leaving him to his remedy by ejectment.  Whipple v. Farrar, 3
i;lich., 436.? 1121. Relief against judgment. If a party has a defense at
law which he neglects to make, he cannot, after judgment against him,
have relief in equity. Wright v. King, Har. Ch., 12.
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 precluded from claiming that the judgment is not binding upon him. Rober'ts v. Miles, 12 Hich., 297.
1123. But where, after the judgment, statements to a similar effect
were made, under such circumstances as to justify the indorser in believing 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




~ 1132       EQUITY: GENERAL  PRINCIPLES.
ignorant of the facts which constituted his defense at law pending
the suit, or the defense was not available at law, the case forms an exception to the general rule that equity will not interfere to relieve
against a judgment at law, Wale v. Bank of Michigan, Har. Ch., 808.
1125. 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; Burpeer. Smith, Wal Cho., 327.
1126. Where complainants were prevented from making their defense 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 entitled 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 defendant 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. Ibid.
112S. Negligence 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 information, equity will not relieve. Wixom v. Davis, Wal. Ch., 1a.
1129. Setting aside execution sale. Irregularities in a sale
under an execution must be corrected by applying to the Court out of
whichthe writ issued, to set the sale aside. There must be fraud to give
equity jurisdiction; it is not sufficient there is irregularity.  Cavenaugh
v. Jakeoway, 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. Burpee v. Sminth, Wal. Ch., 327.
2. DISCOVERY.
1131. Equity will compel a discovery in aid of a defense at law,
and stay proceedings at law until an answer to a bill for discovery can
be obtained. Wright v. King, Har. Ch., 12.
1132. Where a bill is filed for relief, the discovery is ancillary; and
a demurrer which is good to the Telief is good to the discovery. And
where a complainant is entitled to discovery only, and goes on by his
146




EQUITY: GENERAL PRINCIPLES.                 ~ 1140
bill to pray relief, the whole bill is demurrable.  Welles v. River Raisin
and Grand River Railroad Co., Wal. Ch., 35.
1133. Parties in parl delicto.  Where a party is sued at
law on account of an illegal transaction equity will not aid him by
discovery. Ibid.
3. INJUNCTION.
1134. Against public oicers.  Equity may restrain public
officers by injunction, where they are proceeding illegally and improperly, under a claim of right, to do any act to the prejudice of
individual rights.  Cooper v. Alden, Har. Ch., 72; Brown v. Gardner,
Har. Ch., 291.
1135. The interference in such cases is to prevent great and irreparable injury. Where an injunction was awarded to restrain the
opening of a road, but before it was served or defendants had knowledge of it, the road was opened, and the equity of the case was doubtful 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
goods and chattels of complainant; but he will be left to his remedy at
law.  Williams v. Mayor, &~., 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 enjoin proceedings in advance of the actual levy of a tax. He cannot seek
redress until his own tax can be ascertained, and he cannot then proceed in equity except to protect his individual interests from injuries
not remediable otherwise. Miller v. Grandy,13 3Mich., 540.
113S. Private persons cannot assume to themselves the right to institute 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. Ibid.
1139. The only cases where individuals can sue on behalf of themselves and others are where the interests, though numerous, are all
separate, individual, and not joint or public interests identical in character and origin, but all private and independent rights growing out
of the same transaction or frauds. Ibid.
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., 112.
147




~ 1148       EQUITY: GENERAL PRINCIPLES.
1141. Where the aid of the Court is sought to protect the enjoyment
of property, it will not be governed by the mere value of property, but
will interfere if the injury will materially lessen the enjoyment of it by
the owner. Ibid.
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. Ibid.
1143. The provision in the statute-Comp. L., ~ 4722-as to the
jurisdiction of chancery in cases of nuisance, was not intended to extend or enlarge their jurisdiction. Norris v. Hill, 1 Mich., 202.
1144. Personal property. The ground upon which injunctions are granted against third persons in possession of personal property, and ostensibly its rightful owners, upon an ex-parte application,
is for the protection of the fund or property when shown to be in danger without its interposition. Thayer 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 property should be converted into money, and the money paid away pending the suit. Ibid.
1146. Possession of lands is not to be obtained by injunction.
The Court cannot, by ex-parte order or process, turn even a wrongdoer out of possession. People v. Simnonson, 10 Mich., 335.
1147l. Complainant, claiming to be in the actual possession of certain premises, obtained a preliminary injunction enjoining respondents
from trespass of a nature likely to injure the buildings, 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. Ibid.
114S. Tenants in colnmnon 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 halfand 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 v. Hill, 1 Mich., 202.
148




EQUITY: GENERAL PRINCIPLES., 1155
4. FRAUD, 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. Chlapin, Wal. Ch., 79. See supra, 1115
to 1117.
1150. So where one had purchased lands at a tax sale, but on application 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 in consequence of this promise, but after the time for redemption expired the
tax purchaser obtainecla deed from the Auditor-General to himself, he
was decreed to convey to the owner on being paid the tax bid and interest. Laing v. 31c1cee, 13 Mich., 124.
1151. Party snust act promnptly. 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, recognizing the contract as still in force, and by his acts and conduct
tacitly gives his assent to its execution hi a manner different from the
original understanding of the parties, he is not entitled to have the contract rescinded, or to any relief inconsistent with what may fairly and
reasonably be presumed, from his own acts, to have been assented to by
him. De Arnancl v. Phillips, Wal. COh., 186.
1152. An assignee of a contract cannot insist upon fraud used in
making the contract, on the party under whom he claims. Carr'oll v.
Potter, Wal. Ch., 355.
1153. lMistake. 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.
Norr'is v. Hurd, Wal. Ch., 102.
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 afterwards, 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 Mechanics' Bank
v. City of Detroit, 12 Mich., 445.
1155. Defense of bona tide purehase. 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 fide purchasers, against
such correction. Ibid.
1156. Laches. The deed was given in 1816.  The grantee took
possession of the land intended to be 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.
1157. lMistake in voluntary deed. Bills by purchasers for
a valuable consideration from the grantee, against the heirs and administrator of the grantor, to reform a deed by correcting the'description of the lands, which, by reason of the omission of four out
of fourteen courses and distances, embraced but a smlal' 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 correctly. 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 the 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, quere, the Court being equally divided. Quirk v. Thomas, 6
Mich., 76.
115S. Refusing  relief because of mistake. A mistake
in a deed or other written instrument is a good ground for refusing relief to which complainant would otherwise be entitled. Garlinghouse v.
Dixon, Wal. Ch., 440.
1159. Reforming contract. Equity will not reform a contract by the addition of new provisions which, it is claimed, were embraced in the understanding of the parties when the contract was
made, where there is no allegation of fraud or mistake in drafting the
contract. WhLite v. Port Huron and Milwaukee Railway Company, 13
Mich., 356.
5. TRUSTS.
1160. Where one procured an allowance to himself of a claim due
to a third party under a treaty, and received the money upon it, he was
held the trustee of the rightful claimant.  Edwards v. Hulbert, Wal.
Ch., 54.




EQUITY: GENERAL PRINCIPLES.                ~ 1170
1161. That a fraudulent grantee shall hold in trust for the person
equitably entitled, see Adaem v. Bradtey, 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 execution of the trust under the control of the Court of Chancery, which
will compel the assignee to use reasonable diligence. Hollister v. Loud,
2 Mich., 309. But see what is said on this subject in Sutton v. Hanford,
11 Mich., 373.
6. BILLS  OF PEACE AND TO QUIET TITLE.1163. Bills of peace are only allowed where the complainant
has established his right at law, or where the persons 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 Commissioners of Lapeer v. Hart, 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. Ibid.
1165. Settling titles to land. The Court of Chancery is not
the appropriate tribunal to try conflicting titles to land generally. Desaux v. Mayor, &c., 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, 1820, 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
Bougard, Har. Ch., 130.
1167. Quieting title. Where the complainant is in possession
of land, the Court of Chancery is expressly authorized by statute-Code
1833, 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. Stockton v. Williams, WaL Ch., 120.
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 substantiated. [He 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 re151




~ 1178        EQUITY: GENERAL PRINCIPLES.
lease by one to another, unless in a case entirely free from doubt.
Ibid.
1171. A bill to quiet title will 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 will 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. Blackiwood 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 bill for this purpose whose claims to the land are in no way connected. lHunton v.
Platt, 11 Mich., 264.
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 undoubted. A decree quieting his title to the whole was affirmed.  Fitzh;ugh v. Barnard, 12 Mich., 104.
1176. But the Court cannot go further, and take an account of the:
rents and profits of the boom while 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 maintain a bill under the statute to quiet his title against a third person
claiming it. Blancharcd v. Tyler, 12 Mich., 339.
117S. 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.  Palcmer v. Rich, 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.                ~ 1184
1179. Parol evidence to divest title. To warrant a Court
of equity in divesting a title to land, on parol evidence that an unrecorded deed given therefor was subsequently, by agreement between
the parties, surrendered by the grantee to be cancelled, the preponderance of evidence should be clear, and the proof so convincing as to
leave no reasonable doubt upon the mind. Hienter v. Hopkins, 12 Mich.,
227.
7. PARTITION.
1180. Courts of equity have jurisdiction and will entertain proceedings for partition of lands. Thayer v. Lane, Har. Ch., 247.  And now
by statute full jurisdiction is given. See Co7mp. L., Ch. 135.
1181. On bill 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 v. Lane, Har. Ch., 247..
1182. Not 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 mortgage 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 the seller'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 guilty of refusal
to perform his part of the contract, or of any default which would relieve the purchaser from the obligation to perform, or prevent his performance, the latter was not entitled to partition. Avery v. Payne, 12
Mich., 540.
1183. 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. Ibid.
8. CONDITIONS AND PENALTIES.
1184. Relief against conditions.  Relief may be given
against the breach of a condition precedent in the nature of a penalty;
and there is no good reason why 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. Chipman v. Thompson, Wal. Ch., 405.
1185. The Court is not bound, in all cases where compensation can
be made, to give relief; for the party seeking relief may have so conducted 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.
1186. 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  penalties. Equity will not lend its aid to
enforce a penalty or forfeiture. Crane v. Dwyer, 9' Mich., 350:; White v.
Port Huron and Milwaukee Railway Co., 138 Mich., 356; Wing v. Railey,
14 Mich.
1188. Under a contract for the purchase of lands the vendee took
possessionmand 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 forfeiture. Crane v. Dwyer, 9 Mich., 350.
9. CREDITOR's BILLS.
1189. In what cases. There are two classes of cases in which a
creditor may come into chancery for relief. First, In aid of his execution at law. Second, To have his judgment satisfied out of choses in
action, or other property of the debtor not liable to execution. Williams
t,. Hubbard, 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. Ibid. 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. Williams v. Hubbard, Wal. Ch., 28; Steward o.
Stevens, Har. Ch., 169; Thayer v. Swift, Har. Ch., 430; Stafford v. Hulbert, 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 execution, 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.  Williams v. Hubbard, Wal. Ch., 28.
1193. A return of the execution unsatisfied by order of the party
suing it out, is nof sufficient. Ibid.
154




EQUITY: GENERAL PRINCIPLES.                ~ 1202
1194. The execution cannot be legally returned unsatisfied until
the return day. Smith v. Thompson, Wal. Ch., I; Beach v. White, 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 negativing the fact that either of them had, is sufficient.  Williams v. Hiubbard, 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 Bank v. Dorr, Wal. Ch.,
817.
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. Gould v. Tryon, Wal.
Ch., 353.
119S. New  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.,
227.
1199. A strict and rigid compliance with all the rules of
law must be shown by a judgment creditor, before the Court will administer the harsh remedy of depriving the debtor of all control of his
property. Thayer v. Swift, Har. Ch., 4.0. See Smith v. T/hompson, Wal.
Ch., 1.
1200. But where 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 v. Swift,
Har. Ch., 430. But it cannot be filed to set aside a fraudulent conveyance until levy is made. McKibben v. Barton, 1 Mich., 213, overruling
on this point, Beach v. White, Wal. Ch., 495.
1201. Void levy. An attachment was served on an equitable interest not subject to levy. r he 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. Trask v. 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, creates no lien upon the debtor's property; and complainant, upon defen155




~ 1212        EQUITY: GENERAL PRINCIPLES.
dant's decease in such case, loses his right to prosecute' the suit. Jones
v. Smith, Wal. Ch., 115.
1203. Defense to suit.  The regularity of the judgment and
execution cannot be inquired into on a judgment creditor's bill. Williams v. Hubbard, 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.  Whcarton 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 dutyit is to make
the money. Al4bany City Bank v. Dorr, Wal. Ch., 317.
1206. Non-joinder. Where one of several judgment debtors
is wholly irresponsible and destitute of property, he need not be
joined as defendant.  Williams v. Hubbard, 1 Mich., 446.
1207. Bill against stockholders in corporations. Independent of statutory provisions, chancery may, on behalf of the
creditors of corporations, compel stockholders to payin any amount
that may be unpaid on their stock. Pettibone v. 3i]cGrawo, 6 Mich., 441.
120S. Parties. To a creditor's bill against stockholders in a corporation, after execution a.gainst the corporation returned unsatisfied,
it was held not necessary to make all the stockholders defendants.
Ibid.
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. I-t
is immaterial that in another suit by a different creditor they have been
treated as a corporation and a receiver appointed.  W/heeler v. Clinton
Canal 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, LACdHES AND LAPSE OF TnIE.
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., 102; Street v. Dow, Har. Ch.,
427. And see Sapra, 1151; McLean v. Barton, Har. Ch., 279.
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.                  ~ 1220
the Court refused to interfere, and left him to his remedy at law.  Disbrow v. Jones, Har. Ch., 102.
1213. The defense of the statute of limitations and lapse of time
may be made by demurrer.  Gampau v. Chene, 1 Mich., 400; McLean
v. Barton, Har. Chl., 279.  And if there be "any ground of exception
within the statute to prevent the bar, or ground to rebut the presumption arising from lapse of time, it should be stated in the bill.  Carnpau
v. Chene, 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. Barton, Har. Ch., 279.
1215. What delay not uiareasonable.  Where a bill, asking, 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. Schzwarz v. Wendell, 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. Godfroy's heirs, 1 Mich., 178.
1217. Equity  asserted against an  equity. The rule of
limitation will 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.  Campau v. Chene, 1 Mich.,
400.
11. SET OFF.
121S. 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. Beckwith, 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 therein 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, sufficient 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




~ 1229        EQUITY: GENERAL PRINCIPLES.
that the maker of the note trusted to it at the time, as a means of discharging his obligation. Ibi.
1221. The insolvency of one party, in the case of mutual credits, is
not of itself sufficient to authorize an equitable set off. Hale v. Holmes,
8 Mich., 37.
1222. Mutuality. 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. McGraw v. Pettibone, 10 Mich., 530.
1224. So held where stockholders in an insolvent plank road company, against whom decree had been rendered for debts of the company, 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.miglht 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 purchase price of land, the defendant sought to set off certain incumbrances 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. R. Co. v. Griggs, 12
Mich., 45.
12. MISCELLANEOUS MATTERS.
1227. Lost 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. Green v. Stone, Wal. Ch., 109. See Comp.
L., ~~ 4324, 4325, 4326 and 4428, for provisions as to the remedy at law
upon lost notes.
122S. Contribution. Where. complainants, who were the owners 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 contribute to the purchase. Norris v. Hill, 1 Mich., 202.
1229. Failure of consideration. Where defendant received
a grant of the right to use certain water power, and dig a race on complainant's land, in consideration of erecting a mill at a certain place
158




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 consideration had failed, and that complainant was entitled to a reconveyance; and defendant was enjoined from setting up his deed in defense
of any action for a previous, diversion of the water. Jacox 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..ickhols, 12 Mich., 22.
1231. Equal equities. Where the equities of the parties are
equal, and neither has the legal title, the prior equity will prevail.
Wing v. McDowell, Wal. Ch., 175; Norris v. Showerman, Wal. Oh., 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 relieve a party on the ground that assessments are irregular and unauthorized by the strict provisions of law, where they are substantially
authorized and made in reliance upon his own express agreement.
Jackson v. City of Detroit, 10 Mich., 248.
1234.'Where complainants had verbally promised to allow-defendants 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 informingthem that they did not intend to abide by the promise, an injunction 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. New  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., 278.
1236. Nor on the ground of newly discovered evidence will it decree a new trial to enable a defendant to make a wholly different
defense from that which he made and failed in on the first trial. Ibid.
EQUITY PLEADINGS.
1. THE BILL.
1.237. Averminents 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.
123S. A bill to reach land alleged to have been fraudulently conveyed 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. Ibid.
1239. Averment of administration. An averment that A.
and B. were appointed and acted as administrators, without alleging
that they accepted the trust, is sufficient. Ibid.
1240. But a bill to foreclose a mortgage in which complainants describe themselves as executors of the last will and testament of the
mortgagee, but without setting out his death, andcl.in no way alluding to
the probate of the will, shows no right of action in complainants.
Middlesworth v. Nixon, 2 Mich., 425.
1241. Certainty. An allegation that W. was declared a bankrupt, and that "by virtue thereof all the property, effects and rights of
property of VV. 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. Williams v. tHubbard, 1
Mich., 446.
1242. No relief can be given on evidence establishing a case not
stated in the bill. Thayer v. Lane, Wal. Ch., 200; Jerone v. Hop2kins, 2
Mich., 96; Cicotte v. Gagnier, 2 Mich., 381; Warner v. Whittaker, 6
Mich., 133; Bloomer v. Henderson, 8 Mich., 395; Bomier v. Caldwell, 8
Mich., 463; Barrows v. Baughmcn, 9 Mich., 213; Wurcheerer v. ZHewett,
10 Mich., 458; Peckham v. Buffum, 11 Mich., 529; Dunnz v. zDunn, 11
Mich., 284; Perkins v. Perk-ins, 12 Mich., 456; Moran v. 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 v. Gagnier, 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. Hall, 2 Mich., 390.
1245. Estoppels, where they form the foundation of the relief
asked, and are relied on to defeat a legal'title, cannot be proved unless
alleged in the bill. Cicotte v. Gagnier, 2 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 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. Swetland v. Swetland,
3 Mich., 482.
1247. Abbreviated names: allegation of identity. A
bill to foreclose a mortgage given by Alexander Eaton, junior, to O. 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 confesso. The question of identity would have
been open to proof if disputed. Roansdell v Eaton, 12 Mich., 117.
1248. Legal effect. It is sufficient to allege the undertaking in
a written instrument according to its legal effect. Jerome v. Hopkins, 2
Mich., 96.
1249. Charge of- fraud. Where an act alleged in the bill 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. Chandler, 3
Mich., 531.
1250. Averment of notice. Bill to enforce a builder's lien
upon real estate, and to have it declared a prior lien to a certain mortgage taken with notice. But the bill did not allege such notice, and it
was held that it was not in issue. Barrows v. Baughman, 9 Mich., 213.
And see Bloomer -:. Elenderson, 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 negative 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. Oakland County Bank, Wal. Ch., 90. See Myers
v. Carr, 12 Mich., 63.
1252. Offer to refund.  Bill to set aside a tax title fraudulently 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.
1253. 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 jurisdiction is taken by the defendant or not. Gamber v. Holben, 5 Mich., 331.
~1254. But a bill to restrain the collection of a tax, which states its
11                                    161




~ 1262              EQUITY PLEADINGS.
amount as about one hundred and fifty dollars, sufficiently shows it to
be over one hundred. PaZmer v. 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 bill 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 differing interests. The executors and devisees of a-deceased tenant in common, not asking partition among themselves, may jointly file a bill to have, their interests
set off from that of the co-tenant. Page v. Webster, 8 Mich., 263.
1257. Interest incorrectly  stated.  Defendants were described 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 parties 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 v.
Thompson, Wal. Ch., 405.
1258. 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 creditor'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 v. 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. Kibbee, 12 Mich., 94.
1261. The'fact that, in such a case, one of the defendants has become the assignee, will not enable the complainant to sustain his bill,
which avers the ownership to be in himself; since the testimony showing 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. Wheeler, IHar. Ch.,
443; Wheler v. Clinton Canal Bank, Har. Ch., 449; Sill v. Kietcham, Har.
162




EQUITY PLEADINGS.                    ~ 1273
Ch., 423; Martin v. McReynolds, 6 Mich., 70; Adams  v. Bradley, 12
Mich., 346.
1263. The holder of the legal title is a necessary party
where the holder of the equitable title files a bill to foreclose a mortgage. Martin v. McReynolds, 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 affect 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 concerned, though not jointly in each act. Wheeer 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 coextensive 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.  Ingersoll v.
Kirby, 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. Hunton v. Platt, 11 Mich., 264.
126S. 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. Burpee v. Smith, Wal. Ch., 327.
1269. Officers not interested. A magistrate before whom a
judgment was rendered, is not a proper party to a bill to restrain proceedings 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 assessed under the drainage law of 1859; the county treasurer being
merely his agent in the sale. Palmer v. Rich, 12 Mich., 414.
1271. But contractors for making the drains are not necessary
parties. Ibid.
1272. Complainant's interest,  It is a good ground of demurrer to the whole bill that one of the complainants has no interest in
the suit; there is no such rule as to defendants.  Barstowo v. Smith,
Wal. Ch., 394.
1273. Parties to foreclosure. The survivor of two: assignees of a mortgage may foreclose it, and it is not necessary for him
to join the personal representative of the deceased assignee. Mairtin v.
McReynolds, 6 Mich., 70.
163




~ 1281              EQUITY PLEADINGS.
1274. Defendants. The fraudulent grantee of a title which is
equitably subject to the mortgage, is a proper party defendant. MAdams,. Bradley, 12 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 his
interest in the parcel claimed by him. Gre.qory i. Stanton, 12 Mich., 61.
2760. 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.
Ramsddl v. Eaton, 12 Mich., 1i7.
1277. Parties not connected with the title. Bill was
filed to foreclose a mortgage, which made persons other than the mortgagor 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, or 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. Wright v. Dudley, 8 Mich., 115.
1278. 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 deficiency. Abbott v. Godfroy's Heirs, 1 Mich., 178.
1279. Adverse claimants cannot be made parties to a foreclosure 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. Chamberlain v.. Lyell, 3 Mich., 448; Horton v. Ingersoll, 13 Mich., 409.
1280. But where one claims an interest 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. Ingersoll, 13 Mich., 409.
1281. Prior owners. 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. Farmers and.Mechanics' Bank v. City of Detroit, 12 Mich.,
445.
1282. Sureties 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 defendants in a suit to foreclose the mortgage under ~ 3567 of Compiled Laws.
Joy v. Jackson and Michigan Plank Road Co., 11 Mich., 155.
1283. Oath to bill. A bill need not be under oath, when no
preliminary order is required, notwithstanding an answer on oath is not
waived. Atwater v. Kinman, Har. Chi., 243.
1284. Bills of discovery. Where a bill seeks 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 discovered are material. Carroll v. Farmers and Mechanics' 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.
Blackwcood v. Van Vleet,, 11 Mich., 252.
1286. 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. Carroll
v. F'armers and Mechanics' Bank, Har. Ch., 197.
1287. Foreclosure suits: Allegation of assignment.
An allegation that an assignment of the mortgage was duly acknowledged before a commissioner of deeds, according to the laws of New
York, where the same was executed, is sufficient on demurrer. Livingston v. Jones, Har. Ch., 165.
12SS.-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. Morris v. Morris, 5 Mich., 171.
12S9. An allegation that no part of the mortgage debt has been collected or paid, when the bill sets out fully the mortgage, and shows the
amount of the several instalments, and when they became due, sufficiently 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. Cooper v. Bresler, 9 Mich., 534. See Dennis v. Hemingway, Wal.
Ch., 387.
1291. To prevent proceedings on a foreclosure bill, it is not necessary that judgment shall have been rendered on the bond or note accompanying the mortgage, but for the money for which the mortgage
was given. Dennis v. Hemingway Wal. Ch., 387.
1292.-subsequent purchasers. The allegation under Chancery Rule 91, that a defendant claims an jnterest in the mortgaged
premises "as subsequent purchaser, incumbrancer or otherwise,!' will
not entitle the complainant to show that a deed to such defendant, subsequent 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. Hewett, 10 Mich., 453.
1293.-indemnity mortgage. Bill by persons who had guaranteed 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 effect" 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.
1294. It is immaterial in such case that the payment of the debts
was by part of the defendants only, and not by all jointly. Ibid.
1295. Creditors' bills. 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 failed to
set forth these facts; and they must be sworn to. Clark v. Davis, Har.
Ch.,- 227.
1296.-to avoid fraudulent conveyance. Where a creditor 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 Mlich., 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 husband paid the money, or furnished the money wherewith it was purchased 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. Ibid.
1298. Partition: statement of interests. Bill by executors 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 respective 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: who.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 tlie rights of a mortgagee in a mortgage
so paid. Smith v. 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 giving 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 purchased, nor whether it was subject to the mortgage or not. Ibid.
1304. One whose sole interest in lands is under a trust deed, by virtue of which he is to be entitled to the lands after payment of the mortgages upon it and certain other specified demands, is not entitled, if he
167




~ 1312              EQUITY PLEADINGS.
repudiates the trust, to file a.bill to redeem from the mortgages. Smith
v. Austin, 11 Mich., 34.
1305.-excusing lahies. 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 will establish 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 premises 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 applying 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. Mo-wrey v. Vandling, 9 Mich., 39.
130S. 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. Ibid.
1309. Multifariousness.  See a discussion of the general question of multifariousness in Wales v. Nerebould, 9 Mich., 45. And see
Wheeler v. Clinton Canal Bank, Har. Ch., 449; Ingersoll v. Kirby, Wal.
Ch., 65; Page v. Webster, 8 Mich., 263; Hunton v. Platt, 11 Mich., 264.
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. Oh., 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. Hart v. McKeen, Wal. Ch., 417.
1312. —lhowa determined. To determine whether a bill is multifarious, 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. iHammond v. Michigan
State Bank, Wal. Ch., 214.
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. Reed v. Wessel, 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. Ibid.
1315. Bill must be consistent. A bill with a double aspect
must be consistent with itself. It should not set up different and dtstinct causes of complaint that destroy each other. Hart v. MeKeen, 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 him. On a billito redeem, a decree cannot 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.
Schwarz 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 homestead, and invalid for want of the wife's signature. A cross bill is
not necessary for the purpose. Dye 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 premises, and filed a bill in aid of his execution. It was contended by defendant 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 protected 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. Farnhamn, 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. Caruthers v.
Hall, 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 nmatters, it is an original bill, and the suits are separate and
distinct. Andrews v. Kibbee, 12 Mich., 94.
1322. Creditor's bill, to enforce the payment of a judgment, making 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 collateral mortgage given to secure it, and praying to have his title to
these securities established. iThe judgment debtor-who was the mortgagor 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.
2. PLEAS.
1323. A plea must rest the defense upon a single point.- If it contains two distinct points, it is bad. Albany City Bank v. Dorr, Wal.
Ch., 317; Carroll 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. Williams, Har. Ch., 219.
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 supported by an answer to the same effect. Schwarz v. Wendell, Har. Ch.,
395.
1326. Of release.  A plea of a release, unsupported by' an
answer, is insufficient. Ibid.
1327. Of bona fide purchase.  A plea of a bona fide purchase 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 defendant become so bound therefor that the Court could not relieve him
from the payment of it. Thomas v. Stone, Wal. Ch., 1i7.
1328. 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. Emerson v. Atwater, 7 Mich., 12.
170




EQUITY PLEADINGS.                    ~ 1838
1329. Of fraud. 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. Carroll 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 persons, 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. Ibid.
1332. 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. Clark v. Saginaw City Bank, Har. Ch., 240.
1333. Complaitant's interest assigned. A plea that complainant has parted with his interest in the suit, presents a good defense. Wallace v. Dunning, Wal. Ch., 416. See Webster v. Hitkchock, 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. Hurlbut 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
will be dismissed. Hurlbut v. Britain, 2 Doug., 191.
3. ANSWER.
1336. Certainty in. Where an allegation is made in the bill
with divers circumstances, the defendant should not in his answer. deny
the allegation literally, as laid in the bill, but should answerthe 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 v. Atterbury, 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
1.1



: 1348              EQUITY PLEADINGS.
plea to thewhole bill have protected himself against a particular discovery. Gilkey v. Paige, Wal. Ch., 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. Must be signed.  An answer must be signed, notwithstanding complainant has, by his bill, waived an answer under oath.
Kimball v. Ward, Wal. Ch., 439.
1341. lMust state facts. An answer should show facts, and not
conclusions of law. Attorney- General v. 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 different conclusion. How v., Camp, Wal. Ch., 427.
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. Schwarz v. Wendell, Wal. Ch., 267. But new matter brought
into the case by the answer is not evidence for defendant.  Ibid; Attorney-General v. Oakland County Bank, Wal. Ch., 90; Van Dyke v.
Davis, 2 Mich., 144; Hunt v. Thorn, 2 Mich., 213.
1344. If a fact stated in the bill, and answered by defendant, is material 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. Schwarz v. Wendell, Wal. Ch., 267.
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, instead of the whole, and the part omitted, and stated in the answer,
shows a different case from that stated in the bill, and is not in avoidance 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 responsive to the allegations of the bill, and the new contract was required to be proved. Millard v. Ramsdell, 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 bill,
complainant can have no relief depending upon that allegation, unless
the answer is overcome by more than the equally full testimony of one
witness. Roberts v. Miles, 12 Mich., 297.
1348. But this rule amounts simply to this: that there can be nodecree in favor of complainant unless the evidence preponderates in his
172




EQUITY PLEADINGS.                    ~ 1857
favor; and that where answer and opposing witness are equally fair
and explicit, there can be no such preponderance. Ibid.
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 answer. Ibid.
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. Ibid.:1351. Answer conclusive 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. Ibid.
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 concluded by its statements. Ibid.
1354. Answer not on oatlh. 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. MeClurg, 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 relieves 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. Morris v. Hoyt, 11 Mich., 9.
1356. As to what is responsive to the bill, see Mandeville v. Comwtock,
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 pur173




t3865;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 afterwards 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 foreclose 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 untouched. Adams v. Bradley, 12 Mich., 346.
4. DEMURRERS.
13S. A general demurrer for want of equity cannot be sustained unless the Court is satisfied that no discovery or proof properly 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.
UOark v. Davis, Har. Ch., 227. See Thayer v. Lane, Har. Ch., 247.
1359. It must be good to the whole bill, or it will be overruled.
Williams v. Hubbard, Wal. Ch., 28.
1360. If a defendant who should have demurred_ to discovery
only, demurs to both discovery and relief, the demurrer will be overruled. Edwa/rds v. Hulbert, 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 will also extend to
the discovery; but if the discovery have a further purpose, the complainant may be entitled to it though he has no title to the relief. Manning v. Drake, 1 Mich., 34.
1362. Ore tenus. Where a new cause of demurrer is assigned
ore tenus, the cause must be co-extensive with the demurrer. Clark v.
Davis, 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 criminal 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., 3827.
1364. A joint demurrer may be good as to one defendant and bad as
to other defendants. Barstow v. 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 defendants. 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. Peltier v. Pdtier, Har. Ch., 19.
1367. The appointment of next friend is sufficient, if made in writing by the complainant, accompanied by the written consent of the
next friend, and the appointment and consent annexed to the bill.
Markham v. Markham, 4 Mich., 305.
136S. But in respect to her separate property, she may sue in her
own name. And by statute — Comp. L., ~~ 3290, 3294-she may sue in
respect to her own property, at law as well as in equity, without next
friend. Ibid. And see HUSBAND AND WIFE.
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.
Bergh v. Poupard, Wal. OCh., 5.
1370. Amendments. It is not a matter of course to allow the
filing of an amended bill after replication and testimony. A special application should be made to the Court, with a full statement of the facts
intended to be incorporated in the amended bill, so that the Court can
judge of their materiality. ~Hammond v. 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 v. Green,
Wal. Ch., 486.
1373.-when to be applied for.  A complainant wishing to
amend his bill must take the first opportunity, after being made acquainted with the defects in it, to ask leave to do so. Bank of Michigan
v. Nile8, 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 removed, it is necessarj
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




~ 1382                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. Gorham v. 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. Schwarz, 1 Doug., 504; Palmer v. Rich, 12
Mich., 414.
1377. Where petition was presented for leave to amend, by inserting 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 v.
Niles, Wal. Ch., 398.
137St An administrator having filed a bill to compel the specific performance of a contract for the conveyance of land to his intestate, without 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. House v.
Dexter, 9 Mich., 246.
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 decreed below, to stand until the further order of the Court below to
which the cause was remitted. Palmer v. Rich, 12 Mich., 414.
13S0. Where complainant had stated a case not entitling him to relief, but 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 v.
Palmer, 13 Mich., 367.
2. SUPPLEMENTAL BILL.
1381. Is necessary to bring before the Court facts which have
transpired subsequent to the filing of the original bill. Hammond v.
Place, Har, Ch., 438; Graves v. Niles, Har. Ch., 332.
13S2. If material facts have occurred subsequent to the commencement 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 necessary to the proper elucidation of that which occurred subsequent to
the filing of the original bill. Graves v. Niles, Har. Cl., 332.
13S3. Change of title. The purchaser of land at a foreclosure
sale 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 bill. Cooper v. Bigley, 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 decree 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.
1385. A defendant in a foreclosure 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 the defendants who
were not, but should have been, paitiesto the first suit. Such a bill is
not objectionable. It is an original bill as to those who were not parties
to the first bill, and a supplemental bill as to those who were. Ibid.
1386. 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.
1387. 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 Sui.t,
Is by filing an original bill in the nature of a bill of revivor and supplement. 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. Ibid.
3. SUBPOENA.
1388. A subpoena is the first process. It is irregular to have injunction and ne exeat issued and served before the issue of subpoena. Peltier v. Pettier, Har. Ch., 19.
1389. Service. The service of a subpoena out of the State is irregular. 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
12                                        177




~ 1399               EQUITY PRACTICE.
original, in being tested October 31, 1840, instead of 1843, the service
was set aside as irregular. Gouldav. Tyron, Wal. Ch., 339.
4. ANSWER.
1392. Amending. Where leave is given to amend an answer, a
new answer, with the amendments added, must be filed and served, or
the original answer withdrawn by leave of the Court, and the amendments added; or the amendments must refer to the portions of the answer on file intended to be amended, and specify their nature and application. Mason v. Detroit City Bank, Har. Ch., 222.
1393. Amendments in the form of affidavits, not referring to the
answer, are irregular. Ibid.
1394. Leave to amend. Leave to file a supplemental oramended 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 generally confined to a clear case of mistake as to matter of fact, and as to
that only. Graves v. JNiles, Har. Ch., 332. See Emerson v. Atwater, 12
Mich., 314. Effect of laches upon the application. Graves v. Niles, Har.
Ch., 332.
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.mistake in matter of fact, or upon any discovery of new
facts, but upon the ground that the defendant did not mean to be understood as he had stated in his answer. Ibid.
1396. But where the answer was obscure, and there was a possibility of great injustice to defendant, the Court, with reluctance, permitted a supplemental answer to be filed explaining the ambiguity. But
defendant having incorporated other matters of defense in his supplemental answer, without leave, it was ordered to be taken off the files.
Ibid.
1397. Defense of one protecting another. Bill to remove
a cloud upon complainants' title. As under the statute, in order to obtain the decree they sought, the complainants were required to substantiate their own title, it was held that the defense of one enured for the
benefit of all. Stockton v. Williams, Wal. Ch., 120.
139S. Bill against the grantee named in a deed of lands, and purchasers under him, to set aside the deed for fraud. fThe grantee answered 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 dismissed as to all. Buchoz v. Lecour, 9 Mich., 234. See also Emerson v.
Atwater, 12 Mich., 314.
1399. Exception to. Where defendant both answers and de178




EQUITY PRACTICE.                   ~ 1407
mnurs to different parts of the bill, and the demurrer is overruled, complainant, to obtain a further answer, must except. Bragg v. Whitcomb,'Wal. Ch., 307.
5. PLEA.
1400.   ilen 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 v. 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
Idefense. Freenman v. lichigan State Bank, Halr Gh,, 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. Ibid&
6. DnwmRRnmu.
1403. Signed by wrong solicitor. 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 signature of thewrong solicitor was put to the demurrer by mistake, and that injustice,would be done it the defendant should notbe allowed to answer, a default
for want of answer was set aside on terms. Graham v.Elmore, Har. Ch., 265.
7. INqjIcTrIoN.
1404. To stay suit in equity. Application by a party or privy
to stay a proceeding in chancery, must be made to the Court itself, 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. Mcason. Payne, Wal. Ch., 459.
1405. Prayer for. Where the bill prays an injunction, but it is
omitted in the prayer for process, it is good ground for refusing the injunction, but not for dissolving it when it has been allowed. Taylor A.
Snyder, Wal. Ch., 490.
1406. Motion for.  On the motion for an injunction, the statements 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 &. Hastings, 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 staltte.
1V9




~ 14t1               EQiUITY PRACTICEK
Carroll vo Farmers and Mechanics' Bank, Har. Ch., 197. See further, INJUNCTION BOND.
140S. Dissolution of. See supra 1405. An injunction will be
dissolved on motion, where the equity of the bill is fully denied by plea.
Eldred,v. Camp, Har. Ch., 162. Or by answer, if the answer is full and
satisfactory. Attorney.-Generatv, Oakland County Bank, Wal. Ch., 90.
And without answer or plea, the defendant may move to dissolve for
want of equity in the bill. Cooperv. Alden, Ear. Ch., 72.
1409. On motion to dissolve, an affidavit is admissible which goes to
show that the injunction was irregularly issued, or that the officer granting it was misled, or induced to grant it contrary to law. Carroll v.
Farmers and Mechanics' Bank, HIar. 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 of the bill
are to be taken astrue. Schwarz v. Sears, Har. Ch., 440.
1412. The granting and continuance of injunctions rest in the discretion of the Court; and they will not always be dissolved when the
equity of the bill is fully denied. If by a dissolution the complainant is
likely to be deprived of all benefits he might otherwise derive by succeeding 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- General v.
Oakland 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 substituted for an answer for the purposes of thismotion.. Exceptions in ease
of waste or irreparable mischief and partnership.  Sachet v. fil,. a
Mich., 182.
8. MOTIONS, P:TITIO1NSi. OIDEM, &C.
1415. Consent rule. Akrule entered by consent, without fraud or
misrepresentation, will not be vacated. anmmnond v. Place, Har. Ch., 438.
1416. Agreements between 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; Suydan v. Dequindre, Wal. Ch., 23.
1417. Signing petition. A petition was not signed by the petitioner, 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 suflicient. 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 su~bsequeunt pro180




EQUITY PRACTICE.                   ~ 1427
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. Ibid.
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 separate proofs as to them, covering the same ground, is not necessary. If
such reference is had, notice of it to the defendants who have appeared
is not requisite. Mlicigan 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 linterlocutory decree. Kellogg v. Putnam, 11 Mich., 344.
1422. Deposit in Court. Where a party comes to have a foreclosure 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. Schwarz v. Sears, Har. Ch., 440.
1423. Receiver: of moneyed corporation. After injunction 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 claims, it is not a matter of right for the
complainant, on being paid his claim, to dismiss the suit and discharge
the receiver.'Fay v. Erieand Kalamazoo B. B. Bank, Har. Ch., 194.
1424. The Court has power to permit it, when satisfied that the interest of all concerned will be best subserved by permitting the corporation 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
insufficient to 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. Chase, 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 answer itself, a receiver will be appointed. Payne v. Atterbury, Har. Ch., 414.
1427.-in creditors's suit. Notice of motion for a receiver having been given, and the defendant failing to appear, the fact that a de181




4l8              EQUITY PRACTICE.
murrer has been interposed will not be regarded a sufficient reason for'
denying the motion. Howard v. Palmer, Wal Ch., 391.
1428. —motion  for.  Affidavits are not admissible to contradict
the answer, on motion for a receiver. Connor v. Allen, Har. Ch., 371.
1429. Renewal of motions.. After a motion has been denied
on its merits, it should not be renewed, without leave of the Court, on
the same facts, or on any new facts which might have been included in
the first motion. The party must present all of his case at once, whether
i have several grounds or not. Johnson v. Johnson, Wal. Ch., 309..
1430. Service of-papers on mnotions. On making a motion
based upon the fact that a writ of error has been sued out of the Supreme Court, it is not necessary to serve a copy of the proceedings
in that,Court. Webb v. Williams, Wal. Ct., 452.
1431. Irregularity: ]aehes. A motion to set aside proceedings for irregularity should be made at the first opportunity. Johnson vJohnson, WaL. Ch., 309.. And a defendant who has failed to appear is
entitled to no more- indulgence than one who has, Ibid.
1432.-woaver. Where complainant had failed to, serve his replication on a defendant, but the latter attended and cross examined wit-'nesses, this was held to be a waiver. Brooks v. Mead, Wal. Ch., 389.
1433. So where complainant had failed to serve a copy of the bill,
Aut defendant had answered, and made a motion to dissolve an injunction, he was held to have waived the default.  Higgins v. Garpenter,
Har. Ch., 256.
1434.-a defendant in contempt cannot move to set aside:
proceedings; but where he has simply failed to comply with the requirements 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, notwithstanding 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 v. Williams, Har. Ch, 241.
1437. The general rule is> that when the answer shows a defense,
and an excuse is given forthe delay, the Court will open the default,
and allow the answer to be filed, on term&s  Smithv. Saginawo CityBank,
Har. Ch., 426.
1438. Extending time to take testimony. Where a party
applies for leave to take testimony after the time allowed by tlie rules
has expired, he must state inhis application what he expects to be able
182




EQUITY PRACTICE.                    ~ 1450
to prove by the witnesses he seeks leave to examine.  Thayer v. Swift,
Wal. Ch., 384.
1439. A complainant seeking to se't aside the rules of the Court, will
be required to make as strong a case as a defendant to set aside a default. 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. Ibid.
1441. Affidavit of merits must state what the merits are. Ibid.
And must be made by the party himself, ora reason shown why it is not.
Bank of Mtfichigan v. Williams, Har. Ch., 219.
9. THE MASTER; PROCEEDINGS BEFORE HIM, AND HIS REPORT.
1442. Solicitor. It is improper for a master to perform any official act as master in a cause in which he is solicitor, or partner of the
solicitor. Brown v. Byrne, Wal. Ch., 453.
1443. Summons.  The time fixed for service of the summons
should be stated in the summons itself, or form a part of the underwriting, 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. Ibid.
1445. It is not necessary to serve with the summons a copy of the
order under which the reference is had. Ibid.
1446. Service of a copy of the summons, without showing the original, is void. Howard v. Palmer, 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 appear and 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 contempt. Whipple v. Brown, Har. Ch., 436.
1448. 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 irregular. 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 re183




140o              EQUITY PRACTICE.
fused to hear the testimony on the ground that it was too late, the decision was held erroneous. Schwarz v. Sears, Wal. Clh., 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
make 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
fo' his action; that the Court may review his decisions with as little deTly as possible. Schwarz v. Sears, 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. Suydarn v. Dequindre, Wal. Ch., 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. Ibid.
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.  Schwarz v. Sears,
Wal. Ch., 19; Emerson v. Atwater, 12 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 interest 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.
1458. Confirming report. A special motion to confirm a report 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 (111 of old rules, 105 of new), is not confined to defendant's property or effects, but extends to any matter which
he would be required to disclose by answer; and authorizes the examination 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.                    ~ 1460
1461. Transferring reference. Where one master has commenced 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. William8, Wal. Ch., 423.
1462. Examination of witnesses. Where an agent of complainant-defendant not appearing-examined witnesses and wrote their
depositions, and the master was absent from lthe room several times
during the examination, the proceedings were held irregular, and the depositions suppressed. Burtch v. Hogge, Har. Ch., 31.
1463. Impeachment. The practice on impeachment of witnesses
is the same in chancery as at law. Sawyer v. Sawyer, Wal. Ch., 48. See
post, 1686 to 1698.
1464. Re-examination.  A witness once examined is not to be
re-examined 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 take proofs
was duly entered, but notice was not given within the thirty clays required 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 deposition was suppressed. Bachelor 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 Williams, 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 evidence, to test the correctness of the commissioner's conclusion.  Thorne
v. Hilliker, 12 Mich., 215.
10. PROOF OF THE ISSUE.
146S. 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 assigned 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 assignment 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 appeal 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 sufficient.  Young v. McKee, 13 Mich., 552.
1470. The defendant can only defend on the grounds set up in his
answer.. Smith v. Brown, 2 Mich., 161; Van.Dykce v. Davis, 2 Mich., 144.
1471. He cannot, by his answer, vary the terms of a written contract.
Schwarz v. Wendell, 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 v. Jewett, Wal. Ch.,.45.
1473. Admisssons as to infants.  No decree can be taken
against an infant on a bill 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. Thayerv. Lane, Wal. Ch., 200. See Chandler..McKinney, 6 Mich., 217; Smith v. Smith, 13 Mich., 258.
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 v. Buffum, 11 Mich.,
529; Dunn v. Dunn, 11 Mich., 284; Wurcherer v. Hewett, 10 Mich., 453.
1475. 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. Hewlett v. 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.                    ~ 1486
decree against it, notwithstanding it satisfies the Judge who tried the
cause. Ibid.
1478. 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 introduced and read at the hearing. [CAMPBELL, J.] Ibid.
1479. 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.] Ibid.
1480. But if no evidence was given on the trial of transactions outside the pleadings, the verdict should not be set aside because the issue
was too broad. [CHRISTIANCY, J.] Ibid.
14S1. Where several issues are framed for trial by a jury, the jury
should pass upon each separately. [CAMPBELL, J.] Ibid.
1482. 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.
Ibid.
12. EXHIBITS AT THE HEARING.
1483. 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. Batcheor v. Nelson, Wal. Ch., 449.
1484. 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. Ibid.
1485. Whereqhe assignee of a mortgage files his bill to foreclose,
setting forth the mortgage and assignment, he may, upon the notice
required by the rule, (62 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., 255.
13. DECREE.
1486. Under general 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. Williams v. ffubbard, Wal. Ch., 28.
14S7. When pronounced. A final decree, or an interlocutory 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. Graham v. EZlmore, Har. Ch., 265.
1488. 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.
1489. What is final. An- application to dismiss a bill, is an application for a final decree.  Tiggins 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. Enos:v. Sutherland, 9 Mich., 148.
1491. Between defendants. A decree may be made between
co-defendants grounded upon the pleadings and proofs between complainant and defendants. Thurston v. Prentis, 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 v.
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 defendant, 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., 359.
1495. Form of decree. One of the defendants in a foreclosure 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
M2ilzwaukee Railway Co., 10 Mich., 117.
188




EQUITY PRACTICE.                    ~ 1506
14960. 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, conveyed to one of the other defendants, the decree should direct the
amount due to be paid to such grantee instead of the mortgagee. Emerson 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. Ibid.
1498S Foreclosure case: filing mortgage. Before decree
is granted in a foreclosure case, the mortgage and accompanying securities, if any, should be filed in Court, as evidence of complainant's present right to control them. Young v. McKee, 13 Mich., 552; Bailey v.
Gould, Wal. Ch, 428; Bassett v. Hathaway, 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. Young 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., 221; Jerome v. Seymour, Wal. Ch., 359.
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 Insurance Co. v. Whittemore, 12 Mich., 427.
1501. When the facts upon which the motion is made appear by
the record, it is not necessary to present them by petition. Graham v.
Elmore, Har. Ch., 265.
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. Russell v. Waite, Wal. Ch., 31;
Hart v. Linsday, Wal. Ch., 72.
1503. The decree should only be opened under special circumstances, and to promote justice. Ibid.
1504. A stronger case must be made to open a decree than to set
aside a default.  tart v. Linsday, Wal. Ch., 72,
14. COSTS.
1505. Mortgage  cases.  Where complainant has a sale adjourned, he should pay the expense of adjournment himself. Hart v.
Linsday, Wal. Ch., 72. Rule for costs and commissions laid down. Ibid.
1506. Taking depositions. Each party must pay for taking
down the cross examination of his adversary's witness, as well as the
direct examination of his own.. Sawyer v. Sawyer, Wal. Ch., 48.
189




~ 1516               EQUITY PRACTICE.
1507. A defendant unnecessarily made a party, should have the bill
dismissed as to him with costs.  Gregory v. Stanton, 12 Mich., 61;
Ramedell v. Eaton, 12 Mich., 117.
1508. Partnership cases. 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. Ward 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., 258.
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 hill be filed in her representative character.
Daniels v. Eisenlord, 10 Mich., 454.
1511. Discretionary. Bill and cross bill, Decree for complainant 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, 12 Mich., 540.
1512. Wlhen due. It is the determination of the suit which entitles a party to costs, and the law then in existence is the rule by which
they are to be ascertained. Sacwyer v. Studley, Wal. Ch., 153.
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 taxation set aside on that account. Reeves v Scully, Wal. Ch., 346. Retaxation will be refused where there has been gross negligence. Hart v.
Linsday, WVal. 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. Thompson, Wal. Ch., 446.
16. SUPPLEMENTAL ORDER OF SALE.
1515. How  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 understand 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 Court, 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. Ibid.
1517. A copy of the petition need not be served on defendants made
parties as subsequent incumbrancers. Ibid.
17. SETTING ASIDE SALES.
1518. A much stronger case must be made to set aside the sale after
confirmation of report of sale than before. Bullard v. Green, 10 Mich., 268.
1519. What can be inquired into. On application to set
aside a sale, the Court cannot inquire into the regularity of the proceedings resulting in the decree, nor whether 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 fiom the negligence and inattention
of the party himself who complains of it. Ibid.
1521. Inadequa;cy 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. Laches. Nor, if the inadequacy of price was sufficient,
would it be set aside on a petition presented six 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., 898.
1524. Complainant not appearing to have been guilty of any oppression, 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 p ssession, if the defendant, on being shown the
master's deed, and a certified copy of the order confirming the saleunder the seal of the Court, refuse to deliver possession. Hart e.
Linsday, 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 affidavit 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. Baker v. Pierson, 5 Mich., 456.
19. NON-RESIDENT DEFENDANTS.
152S. Appearing after default.  Two things only are required by the statute of non-resident defendants to entitle them to appear 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 Milwaukee Railway 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 personal decree cannot be made against him for any deficiency that may remain after sale. Lawrenae v. Fellows, Wal. Ch., 468.
1533. In partition cases. The jurisdict:on of Courts ofChancery over proceedings in partition as to non-residents, is spbcial and
limited, and dependent entirely upon the statute. All the necessary
facts to confer jurisdiction must therefore affirmatively appear upon the
record. Platt v. Stewart, 10 Mich., 260.
1534. An affidavit 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.
192




ERROR.                        ~ 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 nonresident 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. Outhwite -v. Porter, 13 Mich., 533.
20. SURPLUS MONEYS AFTER FORECLOSURE.
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 v. Smith, 13 Mich, 258.
1538. If the ownier 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. Ibid.
ERROR.
1539. Matters 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. City of Detroit v. Jackson, 1 Doug., 106; Van
Rensselaer v. Whiting, 12 Mich., 449.
1540. Nor, for the'same reason, upon its decision in granting or
refusing a motion for a new trial. Dibble v. Rogers, 2 Mich., 404;
Bourke v. James, 4 Mich., 336; Crisppen v. People, 8 Mich., 117; Cuddy
v. Major, 12 Mich, 368.
1541. Nor on its order dismissing an appeal case for want of payment of the entrance fee. Chaffee v. Soldan, 5 Mich., 242. Or refusing
to open a cause which has been submitted, and allow further proofs.
Lee v. Hlardgrave, 3 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 v. Gicotte, 12 Mich., 459.
1543. But it is not a matter of discretion in a Court to allow a discontinuance 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 to the
United States Court. YawkeV v. Richardson, 9 Mich., 529..
1544. Error without injury. On a writ of error, the Supreme Court corrects only such errors as have been committed adversely 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. Gurney, 1 Mich., 349.
See Berry v. Lowe, 10 Mich., 9.
1547. An erroneous charge which could not affect the verdict, is no
ground of error. Clark v. Moore, 3 Mich., 55; Cummings v. Stone, 13
Mich., 70.
154S. Where exception 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., 287.
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. Henning, 12 Mich., 371.
1550. A judgment will not be reversed for a failure to award nominal damages to a plaintiff entitled to them, when a judgment therefor
would not have carried costs. Hickey v. Baird, 9 Mich., 32.
1551. The admission of evidence from which no injury could result
to the plaintiff in error, is no ground for reversing a judgment. Minnesota Mininq Co. v. National Mining Co., 11 Mich., 186. See Rose v.
Lewis, 10 Mich., 483; Lyell v. Sanbourn, 2 Mich., 109.
1552. A judgment will not be reversed because inconsistent instructions were given to the jury, if those adverse to the plaintiff in error
were all correct. Niagara Fire Insurance Co. v. DeGraff, 12 Mich., 124.
1553. Unfair suggestions. A defendant having claimed and
been 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 propounded to him on the ground stated, was not evidence against him in
the cause, yet it was impossible to prevent the jury from 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




ERROR.                        ~ 1560
deprive the defendant of the benefit of his exemption, was erroneous.
Carne v. Litchfield, 2 Mich., 340.
1554. Charge without evidence  to warrant 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 thereis 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 CGo. v. Moore, 5 Mich., 368.
1555. Request 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 subject to which it relates. Angell v. Rosenbury, 12 Mich., 241. See People
v. Scott, 6 Mich., 287.
1556. Verdict against 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. DeGraff, 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 sustained on error. Peck v. Snyder, 13 Mich., 21.
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 defendant the right to prove any item of payment without'giving notice;
and it cannot be seen, therefore, that other payments were not excluded. Olcott v. Ianson, 12 Mich., 452. See supra 935.
1560. Waiving error. Action in the County Court by plaintiffs 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 plaintiffs' partnership appear. Held, that as affirmative 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 admission of the partnership, or to a waiver of proof of it. Lee v. Hcardgrave.,
3 Mich., 77.
1561. 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 proceedings, were not suggested in the Court below. McBride v. Cicotte, 4
Mich., 478.
1562. Error will not be presumed, but must be made to
appear affirmatively.  Cormstock v. liollon, 2 Mich., 355; Burnham v.
People, 3 Mich., 195; Bash v. Whitney, 4 Mich., 495; Sweetzer v. Mead, 5
Mich., 33; 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., 239.
1563. It will not be presumed that facts were given in evidence not
admissible under the pleadings. Comstock v. Hollon, 2 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 v. Paine, 11 Mich., 92.
1567. A writ of error did not lie from the Supreme Court to
the County Court; a remedy by certiorari being given. Hiney v. Cads,
1 Mich., 163.
1568. To authorize the writ there must be a final judgment or determination in the inferior Court; it will not lie to bring up interlocutory proceedings merely, or discretionary orders made pending the
litigation. Holbrook v. Cook, 5 Mich., 225.
1569. Nor will 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
which ordinarily and primarily exercises common law jurisdiction.
Ibid. 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. JHolbrook 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 judgmentof the Circuit Court. Parker v. Copland, 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., 262.
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 Missionary Union 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. Jackson v. Hosmer, 14 Mich.
1576. Errors of fact. The Supreme Court has jurisdiction of
errors of fact, as well as errors of law. Teller v. Wetherell, 6 Mich., 46.
1577. If necessary a venire may be issued for a jury to try in that
Court the issue joined on assignment of error of fact; or it may be sent
to the proper circuit for trial. Ibid.
1[57. 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. I bid.
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.
1581. The statute limiting the time for bringing writ of error, com.
197




~ 1589                      ERROR.
mences running from the rendition of the judgment, and is not affected
by the settlement of exceptions afterwards. Teller v. Willis, 12 Mich.,
384.
1582. 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.
15S3. 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 assignment of errors, or by allowing a new assignment, as the case may require. Ibid.
1584. What reviewed. On error, the case can be reviewed on
errors of law only; not on conflicting testimony.  Higley v. Lant, 3
Mich., 612; Miller v. Chaffee, 1 Mich., 257; Bromley v. People, 7 Mich., 472.
1585. Where there was a finding of facts by the Circuit Judge, the
evidence can be examined on error only so fa'r as to see whether it tends
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. Tillmacn. Fuller, 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 demise, 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 exceptions must either contain the evidence of those facts, or a statement
that there was such evidence. Tyler v. People, 8 Mich., 320.
1538. Affidavits on which a motion 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 declaration was too general to include such damages. Achey v. Hull, 7
Mich., 423.
198




ESTATES OF DECEASED PERSONS.                ~ 1597
ESTATES OF DEdEASED PERSONS.
1590. Title to personalty. Until administration and distribution, no title to the personal property of an intestate passes to the next
of kin, and they can maintain no action in respect to it unless it be
founded upon their own actual possession, and against a mere wrong
doer. Cullen v. O'Hara, 4 Mich., 132.
1591. Insolvent 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 representation of insolvency. Quackenboss v. Campbel, Wal. Ch.,525.
1592. Administrator's control of lands. Before the Statutes of 1846 an administrator had no interest in or authority over real
estate, unless the personal property of the intestate was insufficient 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 executors and administrators to take possession of the lands, does not exclude
the possessory right of heirs or devisees, but merely permits the executors or administrators to claim and have possession, if they see fit to demand it. Streeter v. Paton, 7 Mich., 341; Marvin v. Sehilling, 12 Mich.,
356. The heir or devisee, therefore, when possession has not been demanded by the personal representative, may maintain ejectment against
third persons. Ibid.
1594. The interest of the executor or administrator under this statute 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 v. 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 administrator, 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 insufficient to pay
the debts; and then only by order of the Probate Court, duly obtained.
Hunt 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. Robinson, 11 Mich., 520.
199




~ 1606       ESTATES OF DECEASED PERSONS.
1598. Neglecting payments on. Where payments fell due
on 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 facts did not render the administrator liable to the heirs
for the value of their interest in the land thus forfeited. Ibid.
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, etaf
appellants, 1 Doug., 422.
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, notwithstanding the sale and conveyance were under the order of the Probate
Court. The question of intent or fairness cannot he considered in such
a case. Dwight v. Blackmar, 2 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. Poupard, Har.
Ch., 206.
1602. A Judge of Probate cannot become interested in a sale
made under his order. Walton 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. Beaubier v. Poupard,
Har. Ch., 206.
1604. Right to sell terminated. Where license to sell real
estate was granted by the County Court, and after license but before 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. Camrrpau v. Gillett, 1 Mich., 416.
1605. A sale under a license granted under the territorial statute of
July 27, 1818, was held void where it was made more than fouryears
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 administrator by lapse of time, the Courts will not license a sale of the real
estate for the payment of claims thus barred. 4 Mich., 308.
200




ESTATES OF DECEASED PERSONS.                ~ 1615
1607. Held also, where 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 creditors against the administratorwas barred by the statute or not. Ibid.
1605. 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, 2 Mich.,
226.
1609. Defects in proceedings. Irregularities in the proceedings 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 compliance with so much as the statute makes essential to the validity
of the sale, and the good faith of the purchaser is not questioned. Goon
v. Fry, 6 Mich., 506; Howard v. Moore, 2 Mich, 226; Palmer v. Oakley,
2 Doug. 433.
1610. Accordingly where, in such case, the application of the administrator for license to sell was not verified by oath; guardians
were not appointed forthe 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. Coon v. Fry, 6 Mich., 506.
1611. Commissioners to audit claims. Where commisioners 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. Fishv. 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 allow
or disallow the claim. LaRoe v. Freeland, 8 Mich., 531.
1613. Costs. Where an executor resisted a claim against the testator 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
12 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. 288 ~ 10,
prohibiting the commencement of suits against administrators within
one year after their appointment, &c. Maining 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., 200.
201




1623 ~                    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 entitled to the moneys from him as administrator, might do so. S'uydam 5.
Dequindre, Wal. Ch., 23.
ESTOPPEL.
1617. A tenant is estopped from disputing the title of his landlord. Byrne v. Beeson, 1 Doug., 179;'Falkzer v. Beers, 2 Doug., 117;
Lee v. Payne, 4 Mich., 106. And see Blanchard v. Tyler, 12 Mich., 339.
But after eviction by one having paramount title, he is excused from
paying rent. Marsh v. Butterwzorth, 4 Mich., 575.
1618. A lessee of a mortgagor is not estopped, in an action of ejectment brought against him by the mortgagor, from showing, to protect
his possession, that he has become assignee of the mortgagee. Niles v.
Ransford, 1 Mich., 338.
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. Wright,v. DeGroff, 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 his 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. Blanchard v. Tyler, 12 Mich., 339.
1622. The deed of an administratrix, containing a covenant to warrant the title against any one claiming under the grantor, does not
estop her from claiming dower in the premises as widow of the deceased. Wright v. DeGroff, 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 1R.
202




ESTOPPEL.                      ~ 1630
were estopped from denying the seizin of M. May v. Tillman, 1
Mich., 262.
1624. The purchaser of an equity of redemption, who has gone into
possession under his purchase, is estopped, when proceedings are taken
to foreclose the mortgage, from denying the title of the mortgagor.
Wanzer v. Blanchard, 3 Mich., 11.
1625. Invalid contract. A paper signed by a judgment
debtor and delivered to the attorney of his creditors, agreeing to compromise the judgment in a certain way, or in default thereof to deliver
certain property levied upon in payment, cannot estop him from claiming the levy to be invalid, where it appears that the attorney had no
authority to enter into such an agreement, or to compromise the judgment in any manner. Hickey v. Hinsdale, 12 Mich., 99.
1626. Estoppel by non-claim. Where a creditor was advised 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 voluntary one. Cicottev. Gagnier, 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 understood as assenting only to an assignment of such interest as his assignee
had in the mortgage. Graydon v. Church, 7 Mich., 36.
162S. 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 mortgagor 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 subsequent 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 estopped from setting up any claim under their mortgage against such
purchaser. Cook v. Finkler, 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 payment 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 claiming 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 ceitificate 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 reason for refusing to allow a transfer of the certificate on its books. Mandlebaum v. North American Mining Co.,, 4 Mich., 465.
1633. By destroying 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. Gugins v. Van Gorder, 10 Mich., 523.
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 himself have taken up the beast, it was held that the proceedings were
unauthorized, and the subsequent sale.of the estray under the statute
void. Newsom v. Hart, 14 Mich.
EVIDENCE.
1. GENERAL PURPOSE.
1635. 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. Becaubien v.
Cicotte, 12 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 v. Randall, 3 Mich., 581.
2. COMPETENCY OF PARTIES.
1637. Action against carriers for the value of a trunk containing wearing apparel, alleged to have been lost by their negligence.
The declaration was on the contract of affreightment, 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, 8 Mich., 55.
1638. 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 attendance 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. Morse v. Congdon, 3 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. Ibid.
1640. Under R. 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 opposite 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                    EVIDENCE.
which he refused to do, made the affidavit required by this section, setting forth the facts within the knowledge of the defendant to be,
the issuing of the policy, its number, its receipt by defendant, its contents, and the policy. Held that under this affidavit plaintiff was entitled to examine the defendant as to the existence of the policy, its receipt by him, its contents, and to its production in Court if in his possession 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 witness; and it was as competent for him'to prove a fact by the admissible
declarations of others, as it was for any other witness. Hogan v. Sherman, 5 Mich., 60.
1645. Under R. S.  1846, Ch. 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.
Litchfield, 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 permit one of them to be sworn on his own behalf on a second trial- the
other not being present. Lester v. Sutton, 7 Mich., 329. [The rule authorized the 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].
164S. Parties in chancery. Where one defendant answered,
and the other interposed a plea which was put in issue, and the defendant 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., 12.
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. Ibid.
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. Wilcox v. Hill, 11 Mich., 256.
1651. Where a bill was filed to restrain the foreclosure of a mort206




EVIDENCE.                      ~ 1661
gage which was alleged to have been discharged, the defendant claiming
to own the mortgage could not be called as a witness by the other defendants, since there was no part of the case in which he was not personally interested. Bassett v. Hathaway, 9 Mich., 28.
1652. Nor could a defendant be ccalledas a witness to sustain the
mortgage when the effect of sustaining it would be to charge the land
with the payment of his personal obligation. 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 bill, it should be amended. Thomas v. Stone, Wal. Ch., 117.  The
deposition of such a party suppressed, and the taking of it by complainant held not to amount to a release to him. Norris v. Hurd, Wal. Ch.,
102.
1654.. By statute since all the foregoing decisions were made, parties to suits, and all other persons interested, are made competent witnesses generally. Laws of 1861, p. 168.
3. COMPETENCY OF OTHER PERSONS.
1655. A witness is presumed competent until the contrary appears.
Norris v. Hurd, Wal. Ch., 102.
1656. A person is not incompetent to testify on behalf of the plaintiffs, 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 commissioners when the suit was brought. Highway Commissioners v. Stockman, 5 Mich., 528.
1657. Stockholders in a corporation, who were personally liable
for its debts, were competent witnesses for the plaintiff in a suit against
the corporation. Hasey v. White Pigeon Beet Sugar Co., 1 Doug., 193.
1658. A legatee, it seems, was a competent witness to a will; the
Statutes (of 1838) making the legacy void.; High, appellant, 2 Doug.,
515.
1659. He would be a competent witness in support of the will under
Comp. L., ~ 4339; although interested. Lawyer v. Smith, 8 Mich., 411.
1660. The acceptor of a bill for whose 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. Lacee,
2 Doug., 230.
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 v. McIntyre, 4 Mich., 316.
207




~ 1672                   EVIDENCE.
1662. Interest balanced.  A person equally liable to both
parties was a competent witness for either. Woodbury v. Lewis, Wal.
Ch. 256.
1663. A surety in an appeal bond might be a witness for the appellant 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 husband of one was held not a competent witness for the other, who, by
leave of the Court, was tried separately. Pullen v. People, 1 Doug., 48.
But it is otherwise under the Statute of 1861 (p. 168). Morrissey v.
People, 11 Mich., 327.
1665. 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.  Washburn v. People, 10 Mich.,
372.
4. EXAMNATION OF WITNESSES
1667. Leading questions. An objection to a question that it
is leading must be taken before the question is answered. [MANNING,
J.] Morrissey v. People, 11 Mich., 327.
166S. Trial for larceny. The question " Will 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.
[MANNING, J.] Ibid.
1669. Objection to be stated. Where a question put to a witness 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. [MANNING, J.] Ibid.
1670. The party objecting should state the true ground of the objection; and if that stated is untenable, the judgment should not be reversed 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.]
Young v. Stephens, 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
208




EVIDENCE.                       ~ 1680
certain facts preliminary to the issuing of execution thereon; and on
the trial he offered-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. tHeld, that the objection should have specified the particular facts not proved; and was properly overruled as
being too general. Rash v. Whitney, 4 Mich., 495.
1673. An objection by defendant to plaintiff being sworn under th
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 testimony after being sworn..3Iorse v. Congdon, 3 Mich., 549.
~1674. Witness giving reasons for recollection.  A witness 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. Angell V. Rosenbury, 12 Mich., 241..1675. But in giving the reasons for his recollection of a transaction,
he cannot be permitted to state facts inadmissible by the rules of evidence, 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 recollection 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. Beaubien v.. Cicotte, 12 Mich., 459.
1677. Cross examination. A party has no right to cross examine witnesses upon facts and circumstances not connnected with the
matters stated in his examination in chief.  People v. Horton, 4 Mich.,
67; Campau v. Dewey, 9 Mich., 381.  See Dann vo. Cudney, 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 partially explained, and where the whole truth would present them in a
different light.  Chandler v. Allison, 10 Mich., 460. See Thompson v.
Richards, 14 Mich.
1679. Whenever an entire transaction is in issue, 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 make out a
false account, and save his own witness from the sifting process without which these omissions cannot be detected.  Chandler v. Allison, 10
Mich., 460.
1680. Nor can one be compelled to make his adversary's witness his
own to explain or fill up a transaction which the witness has partially
explained already. Ibid.
14                                    209




~ 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.  Daann v. Cudney, 13
Mich., 239.
16S2. Adultery by a party being in issue, and evidence having been
given to establish it, the alleged panticeps crim'iawas 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 v. Dunn,:
11 Mich., 284. See Fi8her v. Hood, 14 Mich.
16S3. Where evidence is ruled out as not proper on cross examination, the correctness of the ruling will not be inquired into on error,
where it appears thatthe witness is afterwards called by the party offering the evidence, and examined fully on the subject.  DiUin v. People,, 8
Mich.,.357.
1684. lRe-examination. A witness on the probate of a will
testified on his cross examination that, some years before, he had a conversation 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. Beaubien v. Cicotte, 12 Mich.,
459.
16S5. Recalling 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. WVhite v. Bailey, 10 Mich.,
155.
5. IMPEACHMENT OF WITNESSES.
16S6. General reputation. 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 acquainted with him speak of his character. Webber v. Hacnke, 4 Mich.,
198.
1657. 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 of the
prior witness, for truth and veracity, in the old country. Ibid.
1688. Where a witness called for the purpose of impeaching another, testifies to his bad reputation for truth, and upon cross examina210




EVIDENCE,                       f~ 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. Peope, 13 Mich.,' 511.
16S9. Nothing short of a cross examination which compels the impeaching 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 witness as to the nature of a certain message being somewhat.contradictory, 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. Beaubien o. Cicotte, 12 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 impeachment 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 questioning him as to his former statements, that he may have an opportunity
for explanation. The practice is the same in chancery as at law. Sawyer v. Sawyer, Wai. 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. Smit&
V. People, 2 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 still be impeached by showing that he
did make it. Ibid.
1695. So also, where he says he does not recollect making the statement, but if he did it was false. Ibid.
1696. A witness questioned about immaterial matters cannot be impeached by proof of contradictory statements in regard to them. Dunn
v. Dunn, 11 Mich., 284. See Fisher v. Hood, 14 Mich.
1697. Uncandid 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 whose hands he
might fall, is admissible, as going directly to his fairness and candor.
Beaubien v.: Cicotte, 12 Mich., 459.
1698. Party making the'witness his own.. Where defendant, after plaintiff has closed his case, recalls one of plaintifs witnesses
and proves by him facts material to the defense, he has thereby made




~: 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 subscribing 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. Grant, 6 Mich., 447.
6. ADMISSIOnS AND.DECLARATIONS.
1699. Construction of. Where a defendant admitted the receipt by himself of one of two certain amounts, from the plaintiffs intestate, but omitted on the trial to show which, it was held proper to
charge him with the larger sum. Bigdow 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 sufficient evidence of the policy in a suit on the note.
Way v. Billings, 2 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.
Hickecy I. ffinsdale, 12 Mich., 99.
1703. A written contract is not to be varied by the parol admission
of the party. Hutnt v. Thorn, 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 from the
plaintiff, it was held not necessary, in a suit on the contract, to give
other proof that plaintiff was so indebted.  Pefft v. McNoah; 9 Mich.,
201.
1705. Conclusions of law. Admissions of parties as to conclUsions of law cannot bind the Court.  Rice v. Ruddiman, 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 reCrded as an admission of the plat, and of its being recorded, if a record
is necessary. Johnwtone v. Scott, 11 Mich., 232.
1707. Where the defendant in ejectment undertakes to establish title
ih 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 persen through whom le thus
claims.. Ibid. And see Salisbury. Miller, 14 Mich.
1708. By nominal plaintiff.  Action on promissory note in
tlie:name ofthe payee. Held competent to prove the admission of the
212




EVIDENCE.                     ~ 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 payable to him without his knowledge or consent. Hogan 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 be
bound by the admissions of such trustee or agent. Ibid.
1710. Where action is brought sin the name of one person -for -the
benefit, as is claimed, of a bona fide assignee, the question whether there
has been a bona fide 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 evidence. Ibid.
1711. Under Prohibitory Liquor Law. Plaintiff presented 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 defendantadmitted the correctness of the account. Held that this was not such " positive proof" that
they were "imported under the laws of the United States, and in accordance 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 entitle the seller to recover therefor. Niles v. Rodes, 7 Mich., 874.
1712. By 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, is
not admissible when not offered in connection with proof of some payment made to the receiver, and for the purpose of showing such payment..Neeberry v. Trowbridge, 13 Mich., 263.
1713. To disprove warranty. 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 statements 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 warranty; 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. Deue2 v. Higgins, 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




$ 1722                    EVIDENCE.
dence to affect the others, unless there is some joint interest or!privity
of design between them. Dawson v. Ha/l, 2 Mich., 390. And where the
interest is joint, if the effect of the admission is to create an obligationas, 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. Richards, 14 Mich.
1715. Husband and wife.  The declarations of husband and
wife are subject to the same rules of exclusion which govern their testiumony as witnesses. Dawson v. Hall, 2 Mich., 390.
1716. The wife cannot be bound by the admissions of the husband
as to her own property. Ibid; Glover o. 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, defendants are entitled to prove her request to them to remove the property from plaintiff's possession. Starklweather v. 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 subject matter of the act, are evidence, as a part of the res gestwo; but statements subsequently made by him stand on the same footing with the
declarations of other persons.  Benedict v. Denton, Wal. Ch., 336. See
also, Horner v. Fellows, 1 Doug., 51; Converse v. Blumrick, 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.  HMatch v.
Squier, 11 Mich., 185.
1720. By partner.  The acts and declarations of a partneractually 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. Lockwood v. BeckEoith, 6 Mich.,.168.
1721. By party since deceased.  The declarations of a person since deceased cannot be made evidence on behalf of his representatives, any more than on his own behalf while living. Wilson v. Wilson, 6 Mich., 9; Jones -. 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. Chipmnan v. Thompson, Wal.
Ch., 405.
1722. 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 replevied his agent pointed out certain barrels, and stated that they were the
ones purchased by defendant. The evidence was competent, not to es214




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 apples than belonged to the plaintiffs.- 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.
Schwarz v. Sears, Wal. Ch., 19.
7. EXPERTS AND OPIrNIONS.
1724. When opinions incompetent. Quere. whether witnesses 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. Hill
v. Lafayette Insurance Co., 2 Mich., 476.
1725. A medical witness having testified to seeing the decedent some
two or three months before the making of a will in controversy, was
asked, " From what you saw, what was his mental capacity?" As 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. [MANNNG, J.]  White v. Bailey, 10 Mich., 155.
1726. Only experts can be allowed to testify to their opinions,
based upon the testimony they may have heard in a cause, and then
only upon a matter of skill. Daniels v. Mosher, 2 Mich., 183.
1727. Opinions by others than  experts.  Where a witness 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 v.
People, 11 Mich., 3827.
172S. The cases considered in which the opinions of witnesses, other
than experts, may be given in evidence. Evans v. People, 12 Mich., 27;
Beaubien 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. Beaubien 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'observations. Ibid.
216K




,~ 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 decegent 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 considerable length, if it had been read to him. Ibid.
1734. Also what capacity the decedent had at the time to understand
business matters, and whether he was then capable of holding a conversation like one testified to by another witness. Ibid.
1735. Opinions must be based on facts. Neither medical
experts nor other witnesses can be allowed in any case to give an opinion upon mental capacity or condition, without first showing the circumstances and facts upon which the opinion is based.  White v. Baiey, 10
Mich., 155.
8. [EAAY ND 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
of the re gestw. Stockton v. Williams, I Doug., 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 belonged 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 hler
claim. Campau v. Dewey, 9 Mich., 381..1738. Executors cannot prove their office by general reputation in:an action brought by them. Middeworth v. Nixon; 2 Mich., 425.:1739. What a witness has heard post litem motam-by which is meant
since the dispute has arisen, and not merely the commencement of suit
-is not evidence. Stockton v. Williams, Wal. Ch., 120.
9. RES GESTTA 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.                         1 i748
from its'terms 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. Facey
v. Otis, 11 Mich., 213. See also Norris v. Showerman, 2 Doug., 16; Ies
V. KimZbaU, 1 Mich., 308.
1741. Circumstances attending a will.  Where a will is
contested on the ground of fraud or undue influence, a very broad inquiry is permitted into the whole chain of circumstances attending its
preparation; and the transaction must be deemed to embrace all the inimediate preliminaries.- Beaubin. Cicotte, 12 Mich., 450.
1742. Undue influence being charged against the wife, statements (Af'
the decedent that he regretted the marriage; that he was not master at
home; 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 importunities 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 arrangements 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 transaction, 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 declared at the time which, as a part of the res gestw, can bind or affect
others. Dawson s. Hall, 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 acquiescence in their truth can fairly be inferred; and then the degree of consideration 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 conversa217




~ 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. Dillin v. People, 8 Mich:, 857.
17-49. 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. Peoi:le v. Jenness, 5 Mich., 805.
1750. This rule is especially applicable where the principal transaction in question is unlawful intercourse between the sexes. Ibid.
1751. Letter referred to by anothler. 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. Lester v. Sutton, 7 Mich., 329.
1752. The 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. Plaintiffs claimed property under a chattel mortgage, and defendants 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 mortgagors were indebted to the plaintiffs in more than its amount. Held
competent for the plaintiffs to put in evidence a letter from the mortgagors, 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 admissible 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 contradictory evidence. McBride v. Cicotte, 4 Mich., 478.
1755. Where two plaintiffs sue upon contract, a letter from defendants 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 contract. Shaw 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 incidental mention of the contract by one of his witnesses does not make
it necessary to produce it. Webber v. Hanke, 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 committed; 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 witness 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 v. People, 8 Mich., 857.
~175S. 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 proceedings taken under the same to identify the reservee, held incompetent, as by the treaty itself the title was placed beyond the control of
federal legislation. Camnpau v. Dewey, 9 Mich., 881.
10. PAROL EVIDENCE TO AFFECT WRITINGS OR RECORDS.. [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 bill, and the
relief asked is based upon it; but not otherwise. Sutherland v. Crane,
Wal. Ch., 523.
1762. Where a chattel mortgage is given by one member of a
partnership in his own name, and there is nothing on its face to indicate that it was intended to secure a partnership debt on partnership
property, parol evidence is inadmissible to show that it was the partnership mortgage and not that of the person executing it. Jones v.
Phelps, 5 Mich., 218.
1763. And in equity a mortgage of lands purporting to secure a
sum of money, cannot be shown by parol to have been given to
O219




~ 1772                   EVIDENCE.
secure not the payment of money, but the performance of a parol
agreement for the payment of certain debts-of the mortgagee, and to
aid in his support. Adair v. 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. Picard v. M cCormick, 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 delivered until paid for in the manner verbally agreed upon at the time of
the sale. Rowe. Wright, 12 Mich., 289.
1766. A bill of sale of personal property, though absolute on its
face, may at law be shown to have been given as a mortgage. Fuller
v. Parish, 3 Mich., 211. And in equity a deed of lands, absolute in
form, may be shown to be a mortgage. Wadeworth v. oranger, Har.
Ch., 113; nermeson v. Atwater, 7 Mich., 12.
1767. Impeaching 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 on/claiming under a subsequent grant. Bruckner's Lessee
v. Lawrence, 1 Doug., 19.
1768. 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. Williams, WaL Ch.,
120, and I Doug., 546; Campau v. Dewey, 9 Mich., 381.
1769. Identifying lands. 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 v. 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. Ibid.
1771. Parol evidence of the circumstances surrounding the giving of
a deed, and collateral facts, may be received to show which of two sections coming within the terms of a grant was intended by the grantor.
les V. Kimball, 1 Mich, 308. See supra 1740.
1772. 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 was 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 monuments called for in the patent, was, the actual line surveyed, run and
marked as such boundary, by the government surveyor, is inadmissit
ble. Bruckner's Lessee v. Lawrence, 1 Doug., 19. And see Moore v.
People, 2 Doug., 420.
1773. Disproving delivery. A member of a bankrupt partnership having executed a written acknowledgment to one of the
creditors, of a debt discharged by the bankruptcy, it was held competent to show, when suit was brought for the demand, that the acknowledgment 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
a. WGitt, 2 Doug., 206.
1774. Official. character may be proved by parol. Scott v.
Detroit Young Men's Society's Lessee, 1 Doug., 119. See also Cahill v,
Kalazmazoo Mutua Insurance Co.,, 2 Doug., 124.
1775. But a conveyance by the Governor and Judges of Michigan 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.
Thowmpson v. Richards, 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. Harvey v. Cady, 3 Mich., 431. See also, Erwin v.
Glarlk, 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.
1778. Contradicting record. When a Court of record has
jurisdiction, no proof can be given in opposition to the record. And it
seems that this rule applies to the docket of a justice. GCark v. Hobnes,
1 Doug., 890.
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
221




~ 1787                    EVIDENCE.
another State, cannot be impeached when sued upon here, by showing,
in opposition to its recitals, that process was not served upon defendant. Wilcox v. Kae8ick, 2 Mich., 165.
l781, 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 v. People, 2 Doug., 420. See to
the same effect, Bruckner's Lessee v. Lawrence, 1 Doug., 19.
17S2. 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
suchcertificate, 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. Facey v. Fuller, 13 Mich., 527.
11. PROOF OF RECORDS.
17S3. 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.
17S4. In a suit involving the title to lands which are claimed by one
party under proceedings in chancery, it is incumbent on the party setting 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. Platt v. Stewart, 10 Mich., 260.
1755. The deposition of a register of deeds as to the contents of
deeds recorded in his office, without giving copies thereof, is inadmissible. And where the purpose for which the evidence is offered is collateral to the issue, the rule is still the same. Angell v. Rosenbury, 12
Mich., 241.
1786. Record not required by law. 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.
175r7. Supplying omissions. Where the entry on a justice's
docket does not show the time summons was served, and the files are
lost, the time of service may be proved by the justice —the statute not
requiring the time to be entered on the docket. Van tFeet v. Eggleston,!lMvih., 511..222




EVID~ENCE., 1799
1788. 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. Groesbeck v. Seeley, 183 Mich., 829.
179. Lost patent. A government patent of land being lost, a
copy of the record thereof from the General Land Office, properly certified by the Commissioner, is evidence. The laws of the United States
govern the case, and not the State statute. Lacey v. Davis, 4 Mich., 140.
1790. Parol evidence cannot be given to prove a public document, on the ground simply that the document belongs in a public office
and cannot be removed. People v. Lambert, 5 Mich., 349.
1791. Judgment how 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. Norvell v. McHEenry, 1
Mich., 227; Crane v. Hardy, 1 Mich., 56; Prentiss v. Holbrook, 2 Mich.,
372.
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. Norvell v.  cleHcnry, 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. 2Norvell v. McRenry, 1 Mich., 227.
1790. Lost indictment. Action on a recognizance. The indictment, which 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 e'vidence against such officers. People
v. McKinney, 10 Mich., 54.
1797. Decree in chancery.  Journal entries and interlocutory orders and decrees in chancery are to be considered as originals;
and are admissible in evidence without producing the enrollment. Lothrop v. Southworth, 5 Mich. 436.
I79S. 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 full
as the docket entries are required to be.  Hickey v. Htinsdale, 8 Mich.,
267.
1799. Foreign laws. The statute laws of other States and coun123.




~ 1809                   EVIDENCE.
tries must be proved by copies, authenticated in some mode recognized
by law. People 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 his 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. PRESUMPTIONS AND JUDICIAL NOTICE.
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. Hardy, 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..igh, appellant, 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, People
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. Godfroy 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. Howard v. Rockwell, 1 Doug., 315.
1807. Time of execution of guaranty. On the back of a
promissory note made by R., 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. Higgins v. Watson,
1 Mich., 428.
180S. 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 present, though the record did not show the fact. Lacey v. Davis, 4 Mich.,
140.
iS09. Settlement of accounts. A settlement of accounts
294




EVIDENCE.                      -~ 18rs
between parties is prima facie a settlement of dll accounts; but the contrary may be shown. -Bourke v. Jamw, 4 Mich., 336.
1810. Violation 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. Savier v. Chipman, 1 Mich., 116.
1811. Time when debt accrued. When there is no evidence 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. Glover v. Alcott, 11 Mich., 470.
1812. Judicial notice. A Court will take judicial notice of its
own officers, but not of the officers of another Court. Norvde v. Mce
Henry, 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. Williams v. Hubbard, 1
Mich., 446.
1814. Judicial notice will be taken of an act organizing a township.
Ives v. Kimball, 1 lich., 308. And of the political divisions of the State
generally. Wright t. Dunhalm, 13 Mich., 414.
1815. The Courts will take judicial notice that a part of St. Clair
river is beyond the State boundary. Cummings v. Stone, 13 Mich., 70.
1816. 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. Township of La Grange v. Chapman, 11 Mich., 499.
1817. The Courts must take judicial notice of public statutes, and
disregard all allegations in pleadings which are inconsistent with
them. People v. River Raisin and Lake Erie R. R. Co., 12 Mich., 389.
See Hurlbut v. 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 requisites to the validity of a statute have been complied with, they can take
notice of the journals 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. Mahaney, 13 Mich., 481.
15                                    125




~ 1828                    EVIDENCE.
13. MISCELLANEOUS MATTERS.
1819. Plaintiff's evidence in reply. That.,which in a replication would not be a departure in pleading, may be given in evidence in reply to a defense under the general issue. Caldowel v. Gale,
11 Mich., 77.
1820. 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., 232.
1821. A deedthe record of which is admissible in evidence, is also
itself admissible without preliminary proof. Comp. L., ~ 2750; Lacey
v. Davis, 4 Mich., 140.
1822. 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 possession. Smith v. Lawrence, 12 Mich., 431.
1823. 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. Moforey v. V-anding, 9 Mich., 39.
1824. The seal of a corporation is itself prima facie evidence that it was affixed by the proper authority. Benedict v. Denton,
Wal. Ch., 336.
1825. Sale fixing value. An indorser having assigned a mortgage 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 satisfy 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 v. Snowo, 1 Mich., 128. See Smith v. MitcheU, 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. Barnman v. Ca'rhartt, 10 Mich., 338.
1827. Recital in writing. An instrument purporting to be
an assignment of a certificate of purchase therein recited, although duly
proved, does not establish the existence of the certificate of purchase as
against persons not parties to it. Lee v. Payne, 4 Mich., 106.
-128. Books of account. A party's own entries in his books
of account cannot be admitted as evidence in his behalf, unless a foundation 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
226




EVIDENCE.                       ~ 1885
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 v. Evans, 8 Mich., 476.
1829. The servant of a man dealing in brick,. who keeps a tallybook or slate upon which he keeps memoranda. of sales;during the day,
reporting them to his employer at night, who'enters them, upon his regular account books, is not a lerk within the meaning of'thisirule; and
such regular account books are to be considered the boolks ot original
entries. Ibid.
1830. Where in charging the brick there was entered opposite each
charge of a load the name ofthe, teamster who hauled it,,.these teamsters.4
should all be called to verify thie charges, or their absence aecounted for'
before the books are received in evidence. ibid.
11831. It isnot competent, in order to dispense with the necessity of
calling the teamsters, to prove by others that if" alled its would! not be
possible f6r them to- testify from recollection: tot the quantity hauled.
The main fict to be established is that the artibeIsehave 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 evidence. The -books are receivable on the! presumption that no other
proof exists which has not been adduced.. Ibid.'1832. The witnesses 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 hionest
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:tothe plaintiff;. that the.pocket book containing
the note disappeared.; and that diligpnt 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.  Higgins v. Watson, 1
Mich.,'428.
I S34.-subscribing, witness disqualified.  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 sw~orn is not a. sufficient reason for admitting other proof of
the execution of the instrument. Jones v. Pheps, 5 Mich., 218.
1835. —copy not objected to. Where a copy of a map is put
227




1 1843,FENCES.
in evidence 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 conversion of a promissory note, plaintiff is entitled to prove its existence
and contents, without giving defendant notice to produce it. Rose v.
Lewoi, 10 Mich., 483.
1837.-a notice to quit may also be proved by parol, without
calling upon the defendant, upon whom it was served, to produce the original. Falkner v. Beers, 2 Doug., 117.
1838. Burden of proof: testamentary capacity. The
burden of proof is upon the propounder of a will to show that at the
time of its execution the decedent was of sound mind. Beaubien v. Cicotte, 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, notwithstanding it may involve the proving of a negative. But the same
clear proof is not necessary in such case as where. proof of an affirmative
is required. Young v. Stephtens, 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 plaintiff gave 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 appear. Held that this petition and order raised a presumption that no
proper application was made within the prescribed time. Ibid.
1841. Contempts by witnesses. A witness committed until
he shall submit to answer, is entitled to be discharged when the proceeding in which he was called as a witness is discontinued. [MAmNIaNG,
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 chapter. Matter of Farnhawm, 8 Mich., 89.
FENCES.
1843. When required. The act of.1847 —Comp. L., ~ 628providing 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 enclosed 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. Wlliamsn. Michigan C. R. R. Co., 2 Mich, 259; Woody.
La Rue, 9 Mich., 158. See amendmentto this statute, Laws of 1861, p.
294.
1844. The cattle of other persons going upon such lands are wrongfully there, and the owner of the land may drive them off by any of the
ordinary means to which a prudent man would ordinarily resort.
Wood v. La Rue, 9 Mich., 158.
1845. Where a cow, under such circumstances, was injured by being
driven off 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 land occupied by a
railroad company for its track. Williames. Michigan C.. B. B. CGo., 2
Mich., 259.
1847. Said act has reference only to exterior fences. Where, therefore, 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 of 1861, 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 without proper care, or in an unreasonable manner.  WTiliams v. Michigan
C. R. R. Co., 2 Mich., 259.
1849. The vote of a township authorizing cattle to run at large, does
not affect this rule. Railroads are not to be regarded as ordinary highways, and the vote of the township cannot confer the right upon individuals to graze their cattle upon them. Ibid. For the liability of railroad corporations while constructing their roads, see RAILROAD CORPORATIONS.
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




g 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 entitled to claim and hold them under such mortgage as against one who
held a prior mortgage upon the land. Crippen v. Morrison, 13 Mich, 23.
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.
1852. 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 attaching and severing fixtures, as any other person might during his
term. Ibid.
FOREIGN RECEIVERS.
1853. Where a receiver has been appointed in a creditor's suit in
another State, and the debtor has made an assignment to him, such receiver 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.  Graydon v. Church,
7 Mich., 36.
1854. To establish his right to sue, in such case, it is not necessary to go behind the recitals in the assignment and prove proceedings resulting in his appointment.  The Courts of this State will recognize 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.
1855. 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 v. Rohrback, 13 Mich., 73.
1856. 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 sheriff had sold the - property, plaintiff 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. Holbrook, 2 Mich., 372. See Delevan
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. Judgment having been recovered by them on this bond for money not accounted 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 pleadings and judgment; and the demurrer was overruled. Johnson v. Provincial Insurance Co., 12 Mich., 216.
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. Kirby v. IngersoU,
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 commit a fraud. Ibid.
1861. Partles to. A grantee 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.  Galloway v.
Holmes, 1 Doug,, 330; Jewett v. 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 assumpsit 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 fraud. 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. Buck v. Sherman, g;
231




~ 1872        FRAUDULENT CONVEYANCES.
Doug., 176, See also, Baldwin. Buckland, 11 Mich.,:389; Hubbard v.
Taylor, 5 Mich., 155; Orr v. Lacey, 2:Doug., 230.
1865. Fraud 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. Kendrick, 10 Mich., 303.
1;866. The alleged fraudulent conveyance being by a man to his intended 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 husbandand wife for the husband's benefit, did not raise a presumption of fraudulent intent in making the conveyance. Ibid.
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 partner 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. Reed v. Wesse,:7 Mich., 139.
1868. A debtor mortgaged his lands in consideration of the negotiable 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 sufficiently established by the facts to authorize the Court to decree a release of the mortgage. Buck v. Sherman, 2 Doug., 176.
1869. Fraud in fact, or an express intent to commit fraud, is not necessary in order to render a conveyance fraudulent as against creditors.
It is sufficient if the effect of the conveyance is to delay or hinder creditors in the collection of their debts. Ibid. And see Pierson v. Manning, 2 Mich., 445. Jlollister v. Loud, 2 Mich., 309, crntra.
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.
Cutter v. Griswold, 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.
282




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 execution and levied on the property fraudulently conveyed. Fox v. W8leis,
1 Mich., 321, overruling' same case sub. nom. FoZ v. Clark, Wal. Ch.,
535.
1S74. A mortgagee of the debtor, though he be a judgment creditor,
cannot call in question the validity of a prior conveyance by the mortgagor. Fox v. Willis, 1 Mich., 321.
I375. A conveyance was made to enable the grantee to purchase
goods forthe joint benefit of.both parties, who were to become partners. The goods were not purchased, and a creditor of 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. Wianer v. F'arnham, 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 person 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. Converse v. Blumriek, 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.-  fanning v. Drae, 1
Mich., 34.
1878. Accounting by fraudulent grantee. The conveyance 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. Ca/mp, 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. JHerehfeldt v. George, 6 Mich., 456.;-180. 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. Ibid. 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
233




~1889           FRAUDULENT'CONVEYANCES.
far as to secure to her the repayment of that sum. Herschfedt v. George,
6 Mich., 456.
1882. 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. Jackson'v.'Dean, 1 Doug., 519. See Oliver v. Eaton, 7 Mich., 108; Bagg v.
Jerome, 7 Mich., 145; Gay v. Bidwell, 7 Mich., 519; Snook v. Davis,
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 claiming under the assignment. Jackson v. Dean, 1 Doug., 519.
1884. Conveyance fraudulent on its face. Where an instrument 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 intent. Oliver v. Eaton, 7 Mich., 108; Bagg v. Jerome, 7 Mich., 145; Gay
v. Bidwell, 7 Mich., 519; Nye v. Van Husan, 6 Mich., 329; Orr v. Lacey,
2 Doug., 230.
1885. This principle applied to the case of general assignments for
the benefit of creditors.  Pierson v. Manning, 2 Mich., 445; Sutton v.
Hanford, 11 Mich., 513; Booth v. McNair, 14 Mich.
1886. A chattel mortgage of a stock of goodswhich leaves the mortgagor in possession, and by inference allows him to make sales in the
usual course of business, is good between the parties and not necessarily void as to creditors.  Gay v. Bidwell, 7 Mich., 519.  See Oliver 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. Bidwell, 7 Mich.,
519.
1888]. A contract by which A. is to work for B. in the sale of merchandise, in the store formerly occupied by A., taking charge of the
business, being accountable for all bad debts; to have all the profits 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.a Davis, 6 Mich.,
156.
1889. That a chattel mortgage is given to a trustee to secure demands in.favor of several creditors, instead of being given to the credi284




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, 7
Mich., 145.
1890. Change of possession. 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 ownership or possession, is'not a-change of possession within the meaning
of the statute —Comp. L., ~ 3191. Doyle v. Stevens,v 4 Mich., 87.
1891. Creditor must have judgment. Trover by mortgagee against the sheriff who had taken possession of the mortgaged property. The sheriff, defending under an execution in favor of a creditor
of the mortgagor, must allege in his pleading and prove a judgment, before he can question the good faith of the mortgage.  Comstock v. HolIon, 2 Mich., 355.
1892. Administrator's right to avoid. The right which
the statute confers upon an administrator, in case of a deficiency of assets, 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 discharging to that extent the debt, cannot attack such indorsement as fraudulent against creditors, though he himself be a creditor and the estate insolvent. Morris v. Morris, 5 Mich., 171.
1893. A conveyance valid when made cannot be invalidated by subsequent acts of the grantor, nor by the creation of subsequent debts. Page v. Kendrick, 10 Mich., 300.
1894. For cases where certain facts were held not to prove fraud, see
Hubbard v. Taylor, 5 Mich., 155 (upon creditors), and Titus v. Minne8ota 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 representations unless the vendor knew them to be false when made. Horer
v. Fellows,  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 OF
of relief to a purchaser, because the assertion is a matter of opinion
which does not imply knowledge, and in which men differ.  Every
person reposes at his peril in the opinions of others where he has
equal opportunity to form and exercise his own judgment. Picard v.
McCormick, 11 Mich., 68.
1S97. 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. Ibid.
1898. 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 reasonably be expected to understand. It was held that an action would
lie for the fraud. Ibid.
FRAUDS, STATUTE OF.
1899. 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 Wellington v. Huhtington, 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 account, it is regarded as in effect a promise to pay his own debt; and it
need not therefore be in writing.  Huntington v. Welizngton, 12 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. Hazen, 11 Mich., 219.
1903. A contractor having abandoned the building he was erecting,
resumed work and did certain extra labor on the promise of defendanta 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. Pendell, 12 Mich., 224. See Farwe lv. Dewey, 12 Mich., 436.
1904. Suit on a guaranty, not in writing, that certain notes sold by
236




FRAUDS, STATUTE OF                    ~ 1912
defendant to plaintiffs were good and collectable, and the makers responsible; that the maker of a certain mortgage sold at the 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 v. Wellington, 12 Mich., 10.
1905. Representations 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. Ibid.
1906. Interest in lands. The guaranty of the rmortgage 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 undertaking that certain facts exist. Ibid.
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 v. McKee, 13 Mich., 124.
1908. 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.;Aderton v. Buchoz, 3 Mich., 322. Inquiry about the property by the vendee afterwards not an exercise of ownership over it. Ibid.
1909. Acceptance of draft. A parol agreement by a tax collector 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. Elliott v. Miller, 8 Mich., 132.
1910. Contract for a lease. A contract for a lease is performed 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 X 3179 of Comp. L. governs such a contract; while a lease is governed by ~ 3177.  Tillman v.
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.  Hall v. Soule, -11
Mich., 494.
1912. Void contract not a consideration. A verbal promise 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 subSequent acceptance of the goods by one without the knowledge or assent
of the other. Chamberlain v. Dow, 10 Mich., 319.
1914. Party setting up statute must show his case to
fall 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 authorise proceedings against garnishees being in derogation of the common
law, must be strictly construed. Maynards v. Cornwell, 3 Mich., 309.
1916. Affidavit for.  The affidavit, when made by an agent or
attorney, need not state affirmatively that the affiant is such agent or
attorney. The statement by way of recital is sufficient.  Wetherwax 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.
191S. Jurisdiction ofjustie,. 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
plaintiff. 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. Cornwell, 3 Mich., 309.
1920. Garnishee's evidence conclusive. The plaintiff is
not at liberty to controvert the statements of the garnishee on his examination, 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. Newelt v. Blair, 7 Mich., 103;
Thomas v. Sprague, 12 Mich., 120.
1921. The examination bef6re the justice, taken in writing and
signed by the garnishee, is evidence against him on appeal. Ibid.
1N3S




GOVERNOR AND JUDGES.                 ~ 1929
1922. But he may be permitted to correct, under oath in the Circuit
Court, a mistake made by him on his examination before the justice.
Ibid.
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 had been assigned
before service of the garnishee process, he was held entitled, on appeal,
to introduce evidence to prove the assignment. Ibid.
1924. Negotiable paper not overdue is not liable to be reached
by garnishee process against the maker. Littlefied v. HIodge, 6 Mich.,
826.
GIFT.
1925. What is not. Plaintiff's intestate, a few days before his
decease, put into the hands of defendant a sum of money, with instructions to pay certain bills with a portion of it, and to dispose of the balance to suit himself. Defendant paid out a small sum before the intestate'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 alleged to have been given by B. to A. in consideration of natural affection, 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 sufficiently explained by the relationship between the parties, 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 in any event be affected thereby.
Ibid.
GOVERNOR AND JUDGES OF MICHIGAN TERRITORY.
1929. When 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 provide for the adjustment of titles of land in the
239




~ 1936           GOVERNOR AND JUDGES............
town of Detroit and territory of Michigan, and for other purposes," approved April 21, 1806, until after July'1, 1836. Scott v. Detroit Young
ifenr's Society's Lessee, 1 Doug., 119.
1930. Over the territory west of lake Michigan, their powers continued 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 retained by them until their offices were abolished by express legislation
of Congress, to take effect on the admission of Michigan into the Union.
Ibid.
1932. A stranger not to dispute their grants. Congress 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 authority, as incumbents of those offices, and the offices as being in existence, 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 Land  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 conf6rred by the act. A deed
of bargain and sale executed by the Judges only is therefore valid.
Ibid.
1934. They will all be presumed to have been present, and to have
deliberated upon an act done by the majority, unless the contrary expressly 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 records had been inaccurately kept, and many grants had been made
and deeds given which did not appear thereon, were all held incompetent evidence in opposition to a subsequent conveyance by them. Ibid.
And see Ready v. Kearsley, 14 Mich.
1936, Laying 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
v. Carpenter, 1 Mich., 273.
240




GRANTS.                        i 1944
1937. Power over streets in DJetroit. They had no power
to grant the exclusive use of any of the streets or alleys in Detroit to individuals. Ibid.  For further decisions as to the dedication of streets
and alleys to the public by the plan of Detroit, see WAYs.
193S. Ratifieatlon 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 andt  echanics' 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. Monroe City, Wal. Ch., 155.
1940. Reservations. Where, by a treaty with the. Chippewa
Indians, lands were reserved for certain individuals specified, to be afterwards 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. Ca(mpau, 4 Mich., 565; Stockton s.' WiUiams, Wal. Ch., 120, and 1 Doug.,
546. See this last case, and Campau v. Dewey, 9 Mich., 881, as to the
evidence admissible on the question of the identity of the reservee.
1941. A patent was not necessary to perfect the title. Lands may
be granted by act of Congress, or by treaty, as well as by patent. Stockton v. Wiliams, 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 v. Dewey, 9 Mich., 381.
1943. A certified copy of a map from the General Land Office, on
which a certain section was designated as the tract of one of the. reservees, 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. Bruckner's essee a. Lawrence, 1 Doug., 19. See supra, 1166.
16                                   824i




~ 1951                   GUARANTY.
GUARANTY.
1945. Continuing. A bond was executed by defendant to plaintiff, reciting: That, whereas, P. C. & Co. were then, or might thereafter become indebted to plaintiffs in tdivers 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 conditioned that if said P. C. & Co. should pay or cause tobe paid to plaintiffs 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 notice to the contrary should sooner be given to the plaintiffs. Held that
the bond was a continuing guaranty, and intended' to cover:successi've
notes, discounts and overdrafts, made by P.'C. & Co. at any timewithin the three years, as often and whenever the antecedent transactions were discharged. Farmers and Mechaniies' Bank v. Herciebijal, 2
Michl., 504.
1946. The following was held not to be a continuing guaranty, but
to be limited to a single purchase or transaction: "ST. JOSErPH, Sept.
18, 1858.- Joseph Gard: 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."  Ga rd
v. Stevens, 12 Mich., 292.
1947. Application oof 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.
194S. 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. Zercheval, 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. Notice of' aeeeptanee' 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,i without the consent of the guarantor, the,
latter is discharged. Ibid.
242




GUARANTY.' 1961
1952. So if one of several principals 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 assignor could not set up, in defense, a mere irregularity. in -the foreclosure. 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 eitherin 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. Tlwomas 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.
195S. Where one guarantees the collection-of a note which is secured by a collateral mortgage, and at the same time assigns the' mortgage'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. Cartrartt, 10 Mich., 338.
1959. Naming promissee. The guaranty of a promissory note
need not name the promissee. Thomas v. Dodge, 8 Mich., 51; _Yevius 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. Nevius v. Bank of Lansingburgh, 10
Mich., 547.
1961. Guarantor of note not a maker. One who in243




~ 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.  in/er v. McCauley, 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.
Ibid.
GUARDIAN AND WARD.
1963. Power 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 exercise of his discretion as guardian. Livingston v. Jones, 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. Westbrook v. Comswtock,
Wal. Ch., 314k
1065. 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.  Guardian's bond. It was not necessary that the guardianship bond, required by Code of 1827, (p. 59, ~ 5) should be execated by the guardian; it was sufficient if a bond, with sufficient sureties, was given. Pa/mor v. Oakltey, 2 Doug., 433.
1965. If the guardian was a married woman, and united with sureties in executing the bond, it seems that the bond was good, notwithstanding her incompetency. Ibid.
1969. Tl:e bond was not a condition precedent to the execution of
the trust of guardian. Ibid.
1970. Married woman guardian. Both at the common
law and under the Code of 1827, a married woman was competent to be
a guardian, with the assent of  4er 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 thejurisdiction 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 guardian for a
minor over fourteen, and within the territory, without first citing him
to appear and dhoose his own guardian. And an ex-parte application,
representing the minor to be over fourteen, conferred no jurisdiction to
appoint without citation, if, in fact, the minor was- over that age. Ibid.
1974. A decree of the Probate Court, appointing a guardian, appeared upon its face to have been made upon an application representing the minor to be under fourteen, and did not show any citation to
the minor. Held to be valid on its face, 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 improvement, 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 interest of the minor to have the land sold, and the proceeds, after
paying the debts, put out at interest is sufficient. Nichols v. Lee 10
Mich., 526.
1976. In a petition under the act of February 28, 1840, it was necessary 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, petitiowr
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 will 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 contest 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., ~ 8092).
Marvin v. Schifling, 12 Mich., 856.
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.
19SO. A married woman who is a guardian can convey the
real estate of the ward without her husband joining in the deed. Palmer v. Oakley, 2 Doug., 433. For further decisions applicable to sales
made by guardians, see ESTATES OF DECEASED PERSONS.
1981. Redemption by guardian. A guardian has a right
to redeem the lands of his ward from a mortgage sale. Marvin v. Schilling, 12 Mich., 356.
HABEAS CORPUS.
1982.. Federal jurisdiction. Where one is imprisoned under
the authority and in right of the Federal Government, the State judiciary has no jurisdiction to inquire into the legality of the imprisonment on habeas corpus. Matter of Spangler, 11 Mich., 298.
1983. The Recorder of Detroit has no authority 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.
1984. Inquiry into jurisdietioh. Where the petitioner is
held by virtue of a commitment fair on its face, charging him with contempt 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 Morton, 10 Mich., 208; Matter of Hall, 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 commitment 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. Matter of Mason, 8 Mich., 70.
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 25, 1848-Comp. L., ~ 4495-unless there was an
actual selection and choice of the premises as such, by the owner and
occupant. People v. Plumsted, 2 Mich., 465.
246




HOMESTEAD.                        ~ 1992
1987. And it was accordingly held, that a conveyance of premises
so owned andt occupied, but which had not-been previously selected- as*
a homestead, was valid without the signature of the owner's wife. Ibid.
198. The constitution of 1850 is repugnant to said act o-f 1848, as
respects the value ofthehtmiWtead btbe exempted, and to -that extent
repeals it. If a place occupied -as a: homestead is within:tt6 constitutional 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 v. 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 exempted by the constitution. Ibid.
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 exempt without any other selection. than is evinced by its, ownership
and occupation as a homestead. Ibid. See also Thomas v. Dodge, 8
Mich., 51; Dyson v. S/deley, 11 Mich., 527.
1991. As neither the constitution nor any-legislation has [1859] provided 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. Beecher v. Baldy, 7. Mich., 488. For subsequent
legislation, providing for selection, and for a jury to appraise the premises 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 -payment to him of $1,500 from the proceeds, see Laws of 1861, p. 540.
199f2. 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. B&cherv. Baldy, 7-M-ich_, i488.
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 atthat time.- Herschfeidt v.
George, 6 Mich., 456.
1994. Ownership and occupancy essential. To entitle
a party to claim'land exempt as a homestead, under the law of 1848, he
must both own and occupy-it. Witner v. Farnham, 2 Mich., 472. And
see Beecher v. Ba&dy, 7 Mich., 488; Dyson v. Slkeeey, 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. Hersefeldt., 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. Sheeley,
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 inthe execution of a mortgage of
their homestead, it was a renunciation of this.privilege,'and on foreclosure, the purchaser would succeed to all their rights, precisely as if
no exemption had ever existed. Chamberlain,. L4ell, 38 Mich., 448.
-999. 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 protect the wife and family, as the husband. ~ Beecher v.. Baldy, 7 Mich., 488.
2000. Under 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 deprived, 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.
2001. Who may take advantage of invall,d convey248




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 signature. -Such mortgage by the husband alone is void for all purposes,
and not merely as to the homestead interest. Ibid..
2002. And where bill is filed to foreclose the invalid mortgage, and
the subsequent mortgagee is made a party defendant, he may take advantage of the invalidity of the first mortgage by answer, without filing
a cross bill. Ibid.
2003. Where a defendant conveyed premises, after 1848, and befi re
the new constitution, and the wife did not unite in the deed, and a judgment creditor levied upon them, and then filed bill in equity in aid of
the exeeution, 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 any equitable interest in a homestead to be selected from the premises, it could not be adjudicated in that suit, but she must join her
husband in a cross bill for the purpose. Wisner v. Farnham, 2 Mich.,
472.
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, ineluding the dwelling house, and, as far as practicable, such of the outbuildings 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 homestead 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. Wiicox, 11 Mich., 858.
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 execution as a homestead, under a contract to purchase the same, surrendered and cancelled his contract of purchase without the assent of the
249




~ 2016              HUSBAND AND WIFE.
wife, it was held that such surrender was invalid, and that the wife
might file a bill in equity in her own name, and have a specific performance of the contract. Ibid.
2009. The decree in such a case should be that the land be conveyedl to the husband, but subject to a lien in favor of the wife for the
amount she pays in fulfilling the contract. Ibid.
HUSBAND AND WIFE.
2010. Deed by wife. 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. Gof v. Thompson,
Har. Ch., 60.
2011. But in case of a conveyance by her since the statute of 1855 —
Comp. L., ~ 3292-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. Parr v. Sherman, 11 Mich., 33. And see Watson
v. Thurber, 11 Mich., 457.
2012. Conveyance  by husband  to  wife.  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.
2013. Husband's right in wife's property. A legacy
left to a married woman was held, before the statutes of 1844 and 1855
-Comp. L., ~~ 3289 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. Westbrook v.
Comstock, Wal. Ch., 314.
2014. 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. Cranson v. Cranson, 4 Mich., 230.
2015. Wife's control of her property. Held, that although by ~ 5 of article 16 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 dispose of the same without her husband's consent. Brown v. Fifeld, 4
Mich., 322.
2016. But since said statute of 1855, she has the same power, in all
respects, over her property that she would have if unmarried. Stark250




HUSBAND AND WIFE.                     ~ 2022
weather v. Smith, 6 Mich., 377; Watson v. Thurber, 11 Mich., 457, Peo'ple
v. Horton, 4 Mich., 67; Durfee v. YMcClurg, 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. Starkweather 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; Wales v. Newbould, 9 Mich., 45; D1urfee v..McClurg, 6 Mich., 223. See as to such a
gift, Stiles v. Stiles, 14 Mich.
-201S. Where complainant, a married woman, made an unconditional 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 that 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: security only, and not to be absolutely passed to defendant. Du o'fee v.
McGlurg, 6 Mich., 223.
2019. Complainant's husband having made an arrangement of the
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. Ibid.
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 ac(quire
it except by gift or purchase, and that gift or purchase must be established by some other evidence than that of use and possession. So held
in a suit between the wife's administrator and the husband. White: v.
Zane, 10 Mich., 333.
2021. Where the husband who acted as agent in making a compromise 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. Newbould, 9 Mich., 45.
2022. The wife may give a mortgage to secure the debt of the husband. Watson v. Thurber, 11 Mich., 457.
251




~ 2031             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 not to be distinguishable, or acquiesces in its being so mingled, such property, as to
the husband's creditors, is to be treated as relinquished to the husband.
Glover v. Alcott, 11 Mich., 470.
2024. Said statute of 1855 does not empower a married woman to
carry on, on credit, a general trade or business-like that of the purchase of wheat and the manufacture and sale of flour-so as to make
the proceeds-of the business her own. Ibid.
2026. Accordingly, where a married woman was owner of a flour-'ug mill, and her husband, assuming to be her agent, carried on in the
mill the business of buying and manufacturing wheat, and selling flour,
mill feed, &c., as well as doing custom grinding-the business amounting 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 wife. 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; reveraing 8an 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. Beach v. White,
Wal. Ch., 495.
2028. 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 dower. A deed given by
a husband to his sons, shortly before marriage, without consideration,
azid kept secret until after the marriage, is fraudulent as to the wife,
and does not bar her right of dower. Cransom v. Cranmson, 4 Mich., 230.
2030.. Wife's interest in husband's personalty.'A wife
cannot claim a distributive share in property transferred by the husband 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.
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
252




IMPRISONMENT FOR -DEBT.                ~ 2037
was not necessary to plead the non-joinder in abatement. Brown V.
Fified, 4 Mich., 822.
2032. Action for injury to wife. 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.  ivert8s. Everts;    3 Mich., 580.
2033. Wife as agent of the 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 remain in her husband's house,
if she does so without breach of the peace. Peqpk v. Horton, 4 Mich.; 67.
2034. Action by wife for exempt property. Under the
statute -Comp. L., ~ 3294-which provides that in cases where the
property of the husband cannot be sold, mortgaged, or otherwise incumbered without the consent of the wife, or when his property is exempted from sale on execution, the wife may bring an action in herl 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
t. Moore, 10 Mich., 538.
IMPRISONMENT FOR DEBT.
2035. The act abolishing imprisonment for debt-Laws 1889,
p. 76; Comp. L., Ch. 166 —operated upon the remedy to enforce (ontracts made before it took effect. Bronson 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 1842, upon which ca sa. was afterwards issued, and returned -non
est inventus. N. moved that an exoneretur be entered upon the recognizance. Held that the motion should be granted, for said act of 1839
operated to prohibit the arrest or imprisonment of C. upon any process
issued upon the judgment against him, and thereby rendered the recognizance 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; andthat he refused to pay over the moneys so collected. It was
held, that the action was not "for misconduct or neglect in a profes258




~ 2044                     INFANT.
sional employment within the purview of the second section of said
act. Ibid.
2038. 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 payment.; Held
that these facts in no way affected the liability of N. on the recognizance.
Ibid.
2039. The U. S. Process Act —5 Stat. at Large, 321-operates to
prohibit imprisonment for debt on process from the United States
Courts, except in the cases allowed by the State law. Ward v. Cozzens,
3 Mich., 252.
2040. The provision in the State Constitution-Art. 6, ~ 33-excluding 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.
[CHRISTIANCY, J.] Bromley v. People, 7 Mich., 472.
2041. A petition for a discharge under said statute, which
only professes to set forth in the schedule such property as is not exempt from execution, and the affidavit verifying which omits the clause
required by the statute to be contained therein, " that I have in noinstance 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 e. Stephens, 9 Mich., 500.
INFANT.
2042. A mortgage givenby an infant feme covert, to secure the debt
of her husband, is absolutely void, and not merely voidable.  Chandler
v. McKinney, 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 circumstances, or not so unreasonable as to be evidence of fraud or undue advantage, cannot be repudiated by the minor after it has been executed.
Squire v. Hydliff, 9 Mich., 274.
2044. Affirmante. 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. Young 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. Southwoorth, 5 Mich., 436.
2046. Where action is brought upon an injunction bond without
procuring it from the files, and without obtaining an order of the Circuit
Judge to take it from the files for prosecution, the want of such order is
no defense to the suit. Ibid.
2047. 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 damages, or less than was awarded him.'Ibid.
204S. 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 issuing 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. Richards, 14 Mich.
INNKEEPER.
2049. Liability of: wllo is a 6C 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 occasion 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 which inns are kept. -Carter v. Hobbs, 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 dollars each, and these were taken up at the door of the dancing room byea
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
255




~ 2058          INSURANCE AGAINST FIRE.
money, for liquor and cigars, at a saloon kept by defendant in connection with the hotel. It was held that these facts did not show the relation 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, bu.t merely as an ordinary bailee. Ibid.
INSURANCE AGAINST FIRE.
2031. A personal contract. Insurance is a personal contract,
and does not pass with the title of the property insured. Disbroto v.
Jones, Har. Ch., 48.
2052. Concealment offacts. Where the fact of a pending
litigation, affecting premises insured, was not communicated to the insurer, at the time of executing the policy, it was held that the omission
to disclose did not vitiate the policy. Hill 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 Massachusetts Insurance Co. v. Riker, 10 Mich.,
279.
2055. 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 unconveyed is shown to exceed in value the sum insured. Ibid.
2056. It was provided in the policy that it should be void if the premises were used for storing or keeping therein any articles included in
certain classes of hazards annexed to the policy, "except as herein specially provided, or hereafter agreed to by the insurers upon this policy."
It was held that where a stock was insured under the general designation 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. v. De Graff, 12
Mich., 124.
2057. 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 intrinsically dangerous nature, as'liable to cause injury accidentally or by
carelessness, and not to refer to liquors, the traffic in which was
made illegal by statute. Ibid.
2053. The policy provided that the keeping of gunpowder, "with25




INSURANCE AGAINST FIRE.                 ~ 2064
out written -permission in' the policy" should 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.- Hall, 12- Mich., 202.
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 fire policy it was provided 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. Itwas 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,.npon 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 return.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. Insurance by one part owner. If one partner insure 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 insurer knew the interest of the parties, and that it was the intention of
17                                   257




~ 2071          INSURANCE AGAINST FIRE.
both the insurer and insured, at the time of issuing the policy, that the
insurance should cover the whole. Ibid.
2065. The rule may be otherwise where the partner making the insurance has made advances to the firm, which, by agreement, are to
constitute a lien on the property insured. Ibid.
2066. Where a policy when made covers the interest of- one partIer only, the remaining interest cannot be brought within It by the
partner insured subsequently becoming the owner of the whole. Ibid.
2067. Insurance of liquors. Spirituous liquors illegally kept
for sale may notwithstanding be lawfully insured against destruction by
fire. The risks insured against are not the consequences of illegal
acts, but of accidents. Niagara Fire Insurance Co. v. De Graff, 12 Mich.,
124.
2068. Description of insured property.  Where an insurance 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.
2069. Renewal. 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
tenewal. Brady V. XNrthwestern Insurance Co., 11 Mich., 425.
2070. What is insured against.  The policy covers all loss
which necessarily follows from the occurrence of a fire, whenever the
injury arises directly or immediately from the peril, or necessarily
from incidental and surrounding circumstances the operation and influence of which could not be avoided. Ibid.
2071. Rebuilding clause. A wooden building situated within
the fire limits of Detroit was injured by fire, and, by the ordinances of
that city, could not be repaired without the consent of the Common
Council. 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 tenderingthe cost of repair. Ibid..
258s




JOINT DEBTORS.                   ~ 2078
INTEREST.
2072. A township is not liable to pay interest on damages assessed for laying out a highway.  People v. Township Board of La
Grange, 2 Mich., 187.
2073. When 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 payment. Beardslee v. Horton, 3 Mich., 560.
2074. Compound interest. The npn-payment of an instalment of interest when due does not convert it into principal, nor entitle the creditor, without express agreement of the debtor, to collect
interest upon it. Van Husan v. Kanouse, 13 Mich., 303.
JOINT DEBTORS.
2075. When judgment a merger. Plaintiff having recovered 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 defense 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. Clark, 2 Mich.,
255.
2076. Where suit was brought in the State of New York 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 original 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.  Wetherwao
v. Paine, 2 Mich., 555.
2078. Joint and several note. Proof of execution by
a party not sued is unnecessary, in a suit against one of the ma —
259




2085         JUDGMENTS AND EXECUTIONS.
kers of h joint and several promissory note. Chandler v. 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 appointment.. It was held that the second appointment wasvoid, andthat
under the Constitution the person first appointed would hold until a
successor was elected and qualified. People v. Lord, 9 Mich., 227.
200O. 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.
20S1. The Governor could not, by any provision in the commission,
limit the first appointment, or make its continuance depend upon his
pleasure. Ibid
2082. The appointment so made ceases when a successor has been
elected and qualified' in pursuance of an order of the Board of Supervisors. And the act of February 17, 1857-Comp. L., ~ 491-which
provides that when a vacancy in a county office shall have been filled
by appointment of the Governor, the appointee shall hold for the unexpired portion of the regular term, cannot constitutionally apply to the
office of Judge of Probate. Ibid.
JUDGMENTS AND EXECUTIONS.
2083. Judgment in name of deceased person. A judgment 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. Teller v.
Wetterell, 9 Mich., 464.
2084. Suit on stayed judgment.  An action of debt lies oil
a judgment recovered before a justice of the peace, immediately on its
rendition, notwithstanding execution upon it has been stayed pursuant
to0 the statute. McDonald v. Butter, 3 Mich., 558.
20S5. Title by Judgment.  A judgment for the plaintiff in
trespass de bonis asportatis, and the satisfaction thereof, will vest the
right qf property in the goods in defendant, and his title will relate back
to the time when suit was commenced; but this cannot affect third persons, so as to make them trespassers, as against defendant, for acts
260




JUDGMENTS AND E:XECUTIONS.                ~ 2094
done by them intermediate the commencement of suit and the rendition
of judgment. Bacon v. Kimmel, 14 Mich.
20S6. 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. Perkins v.
Spalding,. 2 Mich., 157.
2087. Irregular execution.  An alias 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,
2 Doug., 150.
2088. Mistake in levy.  A constable levied upon wheat on the.ground, on the.farm of C., in the tounship 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. Perkins v. Spalding, 2 Mich.,. 157.
2'089. A constable's notice of sale need not state whose
property it is that is advertised, nor who is the defendant in the execution. 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 appointed. Ibid.
2091. It is the duty Of a constable to sell property in such lots or pareels 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 of 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. Spaford v. Beach, 2 Doug.,
150., But a levy on chattels is. Farmers and Mechanics' Bank v. Kingskyi,. 2 Doug., 379..2094. What may be sold: school lands. Since the act of
1851 —Comp. L., ~ 2451-the interest of any purchaser of primary
261




~ 2104    JUDGMENTS AND EXECUTIONS.
school'lands, holding by certificate of purchase, is liable- to levy and
sale under executions. Kercheval 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. Trust estates are not subject to levy and sale on execution in this State. Trask v. Green, 9 Mich., 358; Maynard v. Hoskins, 9
Mich., 485; Gorham-,v. Wing, 10 Mich., 486.
2097. Since the Statutes of 1846, where 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.
2098. Proceedings to a sale.  A non-compliance by the
sheriff with the requirements of the statute in regard to the levy, advertisement, 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 v.
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 accordance with the statutory provisions for the sale of real estate, is void.
Buld v. Kenyon, 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. Aldrich v.
Maittand, 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 sufficient 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 passage of the act become equitably vested with the title which the purchasers 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.,
436.
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 operation, 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,
262




JUDGMENTS; AND EXECUTIONS.                   ~ 2113
for irregularity merely, made five years after the sale of real estate by
virtue of the execution, is too late. Spafford v. Beach, 2 Doug., 150.
21045. Evidence of purchaser's right. The title of a purchaser of real estate sold on execution, is not affected by the insufliciency of the officer's return. The certificate of sale and the deed-not
the return-are the evidence of his title. I;bid.
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.
Hardy, 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 judgment, levy and sale. All other questions are between the parties to the
judgment and the officer making the sale. Ibid.
2108. Under the Revised Statutes of 1838, a sale of lands on execution 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. Gorham v. Win, 10 Mich., 487.
2109. Redemption under Statutes of 1838. The time
for redemption under said Statutes, was to be computed exclusive of the
day on which the sale was made. Ibid.
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.
Ibid.
2111. Redemption by Judgment creditors. Judgment
creditors who were entitled, under ~ 3147 of Compiled Laws, to acquire 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 statutory proofs of their title to acquire such rights. - Held, that where the
application was thus made to the purchaser himself, and evidences produced which were satisfactory to him, it was sufficient; though if the'
application had been made to the register of deeds or sheriff, the status
tory proofs must have been produced. People v. Fralick, 12 Mich., 234...
2112. Held, further, that the creditors, by thus taking an assignment 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. Ibmi
2113. Exemptions. It is competent for the legislature in passing.
a statute increasing the exemptions from execution, to make it apply to
263




~2120   JUDGMENTS AND EXECUTIONS.
c6ntracts entered into before its passage. Rockwell v. Hubbel's Admin-.strators, 2 Doug., 197.
2114.-several kinds of business. Where a debtor claiming
the exemptions allowed by Comp. L., ~ 4465, carries on several kinds
of business, the exemption covers only such property as is requisite for
carrying on that particular business in which he is principally engaged.
Morrill v. Seymouwr, 3 Mich., 64.
2115. Exemption to specified amount. Where property
which is exempt from execution to a specified amount or value is levied
upon, the officer, 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, and the
amount exempt to be set out to the debtor. Elliott v. Whitmore,:5Mich.,
532.
2116. The statute exempting from execution a sufficient quantity of
hay, grain, feed and roots for properly keeping for six months ithe animals specified as exempt from execution, does not exempt any' more of
those articles than may be necessary for keeping such of the anima's
mentioned as the debtor has at the time of the levy. King v. Moore, 10
Mich., 538.
2117. Whether the statute exempting "provisions for the comfortable
subsistence of a householder and family for six months," would exempt
growing crops of corn and potatoes recently planted, and which have
just become visible above ground, quere. Ibid.
2118. 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. Williams, 13:Mich.,
521.
2119. 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
ified in the office of the county clerk. More than four years after the
iling 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 office 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. Ibid.
2120. Void Judgment no consideration. Where a mortgage 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.                     ~ 2129
the-mortgage: was without consideration. Aation.  v.: Grant,1 Mich,:490.
2121. What 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. Howard v.
RockwelZ, 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. Lyon, 2 Mich., 276; Prentiss v. Holbrook, 2
Mich., -372.
2123. Accordingly it was held, that one who had unsuccessfully opposed the discharge of his debtor as a bankrupt, was estopped afterwards, in a suit brought to recover the debt, in which the discharge
was pleaded, from showing that the discharge was fraudulently:obtained. - Wales v. Lyon, 2 Mich., 276.
- 2124. Plaintiff 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. Holbrook, 2 Mich., 372.
JURISDICTION.
-2125. Rule as to inferior jurisdictions. Inferior;jurisdictions, not proceeding according to the course of the common law, are
confined strictly to the authority, conferred upon them. Wightv. tWarner, 1 Doug., 384; Clark v. Holnes, 1 Doug., 390; Chandler v. Nash, 5
Mich., 409.
2126. The facts necessary to give them jurisdiction must appear
affirmatively 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. Holmhes,,1 Doug., 390.
2128. The want of jurisdiction, either over the person or the subject matter, may be shown by evidence, even when it tends to contradict 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.conclusgive.2129. When jurisdiction exists, the proceedings cannot be impeached collaterally. Clark v. Holmes, 1 Doug., 390.
SO




~ 2137                  JURISDICTION.
2130. What are inferior and special- urisdietions.
These rules applied to Courts of justices of the peace- Clark v.
Holmes, 1 Doug., 390; Wight v. Warner, 1 Doug., 384-to proceedings before circuit court commissioners for the dissolution of attachments- Chandler v. Nash, 5 Mich., 409-to proceedings against nonresident defendants for partition in the Circuit Courts in Chancery -
Plat v. Stewart, 10 Mich., 260.
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. Greenvault v. Farmers and Mechanics' Bank, 2
Doug., 498; Wilson v. Arnold, 5 Mich., 98; Farrand v. Bentley, 6.
Mich., 281.
2132. Notice essential. No man's rights can be affected by
legal proceedings, without notice of them, actual or constructive. Buck
v. Sherman, 2 Doug., 176.
2133. Waiver 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.
Farrand v. Bentley, 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. Tzrrill v. 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 stipulating 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. -Salee v. Ireland,
9 Mich., 154.
2136. A confession of judgment before a justice is void unless in accordance with the statute authorizing it. Clark v. Holmes, 1
Doug., 390; Beach v. Botsford, 1 Doug., 199; Spear vr. Carter, 1 Mich.,
19; Wilson v. Davis, 1 Mich., 156. And see Shadbolt v. Bronson, 1
Mich., 85.
2137. Unauthorized stay of judgment. A stay of execution 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. Shadbolt v. Bronson, 1 Mich, 85.
266




JUSTICES' COURTS.                  ~ 2145
2138. Transfer of jurisdiction where Court is abolished. When the State government was organized, and the Supreme
Court of the Territory abolished, 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 the State. Scott v. Smart's Executors, 1 Mich., 295.
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 received in an action on the judgment in the State in which it was rendered. Wilcox v. Kassick, 2 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 had, 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 authority of such attorney to appear for him will be presumed. But whether
the authority may be disproved, quere. Ibid.
JURY.
2143. Jurors Judges or the Law in inferior jurisdictions. 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.
Ckhamberlain v. Brown, 2 Doug., 120.
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 R. R. Co., 2 Doug., 367.
JUSTICES' 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.
267




~ 2153               JUSTICES.' COUnIorS.
Wight v. Warner, 1 Dpug,,: 384; Clark v.,olms, 1 D.oug..39. Nouhng
can be presumed in favQr of its jurisdiction. Spear v. Carter, 1 Mich:. 19.
2146. The jurisdiction. of the justice, in actions on contract to.recover less than $100, is not exclusive.  Webb v. Mann, 3 Mich., 139.,
2147. These Courts have no jurisdiction of suits against'unicipal
corporations. Root v. Mayor, &c., 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 confer jurisdiction, upon them. Such a provision must be understood to
mean, in all Courts of law and equity having jurisdiction of the'case..
Gurhney v. Mayor, &cc., of St.. Clair, 11 Mich., 202.
214S. Matters of form. The Court will overlook matters of
form in proceedings before justices of the peace, and regard.them according to the merits.. People v. Foote, 1 Doug., 102.
2149. Where an issue formed upon a plea of not guilty in repleyin,
was tried by a jury, who returned a verdict as follows: "This jury find
for the plaintiff;" held sufficient. People v. Foote, 1 Doug., 102. And
the justice having refused to enter the verdict and render judgment
thereon, on the ground that it was insufficient, and awarded a v. enire. de
novo, the Supreme Court compelled him by mandaimus, to enterthe
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. Betts, 2 Doug., 98; Overall v. Pero,7:Mich.,
315.
2151. The pleadings should be viewed with liberality, technicalities 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 issuably, 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-payment 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., 352. See Gicotte v. Morse, 8 Mich.,
424.
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.
Achey v. Hull, 7 Mich., 423.
268




JUtSTICES' COURTS.                   ~ 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 record. Rood v. School District,:&c, &1 Doug., 502.
2155. Under the proper entitling of a-cause with the names of the
parties, an award of judgment was entered as 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.
2156. Held, also, that parol evidence was not admissible to prove
that the letters'P. and D. in the docket entry, meant plaintiff and
defendant. Ibid.
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 tiine of its actual return. Aldrich v.
Maitland, 4 Mich., 205.'215S. 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. Fuller, 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
sattsfied, and that this evidence was not rebutted by proof, unaccompanied by any explanatory testimony, of another entry immediately below
the: formeri, 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. Botsford, 1 Doug.,' 199.
2161. Court in bar-room. The statute of 1842-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 saie house, but that the justice had no knowledge 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



2 2169               JUSTICES' COOU RTS.
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 spirituous liquors. Savier v. Chipman, 1 Mich., 116.
2162. Service 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 that the summons should 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 reading," properly dated and signed by the constable, was held sufficient.
SLCaw 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.  Gilbert v. Hdanfordi 138 MTh., 40.'...fe 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. Stcdler v. 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.
Dunn v. Sutliff, 1 Mich., 24.
2168. 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 appeared by the pleadings that a question of title to real estate was involved, and the title was disputed; but where title was admitted-as by
demurrer to a declaration alleging it-the justice had jurisdiction. Stoit
v. Keyes, 2 Doug., 184. See Comp. L., ~~ 3654, and 3729 to 3737 for
provisions somewhat 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, which 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. Delrymple,
1 Mich., 145.
2170. Replevin. The forms provided by statute-Comp. L., Ch.
152-for actions of replevin, are applicable alike to Justices Courts and
Courts of record. Elliott v. Whitmore, 5 Mich., 532.
2171. 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. Fowler v. Detroit and Milwaukee, Railway Co.,7 Mich., 79.
2172. Since said Justices Act of 1855, justices of the peace have no
jurisdiction to issue attachments against foreign corporations. Brigham
v. Eglinton, 7 Mich., 291.
2173.- Confession of judgment. C. and L. were duly summoned 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.
foundin the office of the justice, his individual confession'of judgment
thereon, upon which the justice, on the same day, without any continuance of the cause from the return day of the summons, or any declaration 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. Clark v. Holmes, 1 Doug., 390.
2174. Under the Statutes of 1838-R. S., p. 389, ~2 —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 dolldas Iand eighteen cents damages and costs of- suit."
271




~ 2183                JUSTICES'.C OURTS.
Held, that the judgment did- not show, and was not prima facie evidence, that the justice had jurisdiction of either the persons of the defendants, or of the subject matter of the suit, and that it: was therefore
void. Spear v. Carter, 1 Mich., 19.
2176. Held further, that the. justice could render judgment on confession only in those actions which he had jurisdiction to try. And
that where jurisdiction was unqualifiedly withheld, consent, or the confession of a judgment, would not render the proceedings valid. Ibid.
2177. Under the same code, it was held that a judgment rendered
on a confession not in writing was void; and that where such judgment had been stayed, an action could not be maintained on the undertaking of the surety, for want of consideration to support it. Wilson v.
Davis, 1 Mich., 156.
217S. 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 appeared 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 acknowledgment of their indebtedness, and sufficient under this statute. Kinyon v. Fowler, 10 Mich, 16.
2179. Where two persons thus confessed judgment, and theentry
recited that " the parties appeared," it was held that this phrase purports that the creditor, as well as the debtors, was present and participated in the proceedings. Ibid.
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 admits the cause of action for which the plaintiff declares, this is sufficient to authorize judgment to be entered against him. Crousev. Derbyshire, 10 Mich., 479.
21S1. Stay of execution. The undertaking of one who becomes 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 executed in the presence of the justice, and be witnessed by him. Cox x.
Crippen, 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 2137.
21S3. 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 given. Rash v. Whitney, 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. Transeript.  The Revised Statutes of 1846-Ch. 98, ~
102-required the justice, upon proper demand, to give the party applying "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 became, in effect, that of the Circuit Court. Held, that this statute, providing for an entirely ex-parte proceeding, and followed by such unusual consequences, must be strictly complied with by the party seeking the benefit of its provisions; and that where a transcript was authenticated by a certificate of the justice in this form: " I hereby certify 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. Jewett 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. Hooward v. People, 3 Mich., 207.
2188. Where the statute has prescribed as the penalty for an
offense, fine or imprisonment for a limited time, or both, a judgment
that the defendant pay a fine, and stand committed until paid, is void,
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-General, any clerk," &c., one dollar a
day "for attending on subpcena with bills, records, or other written
18                                    273




~ 2194               LAND QQONTRACT
evidence," was held not.to apply to. a justice in attendance,with his
docket. He. is not such, a clk as was intended by the statute. Prentie s. Webster, 2 Doug., 5,
2190. What he may receive on judgments.  In the
absence of special instructions, a justice of the peace can- receive not
thing but current money' of the United States in satisfaction of a judgment on his docket. Heald v. Bennett, 1 Doug., 513; Welch vp. Frost, 1
lich., 30.
JUSTICES, OF THE SUPREME COURT.
2191. Compensation as Circuit Judges. Under the constitution of 1850, and prior to the present 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 Circuit 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 v. Auditor-G'eneral, 5 Mich., 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 dispose 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. Wing. -XIcDowell, Wal. Ch., 175.
2.193. 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: covenants, The defendant made proposals.to plaintiff's agent for the purchase 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 pretmises 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 tlihat no promise could be implied to pay for the occupation during the: negotiations for the purchase, if the plaintiff refusede to
ratify the agreement, or, after acceptance, to perform its conditions.
D'wight v. Cutler, 3 Mich., 566.
2195., In every contract for the sale of lands, unless the contrary-intention is expressed, there is an implied undertaking on the part of the
vendor, available at law as well as in equity, while the contract remains executory, to make out a good title, clear of all defects and incumbrances. Ibid.
2196. 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.
2197. The vendor, unless there is somethingin the contract to show
a contrary intention, or unless he acts in a ministerial or fiduciary capacity, impliedly engages to convey by a deed containing the usual covenants; and in this State lands are usually conveyed by deeds containing
a general warranty. Ibid.
219S. The deed tendered by the plaintiff, as it did not contain a
general warranty, was not. such as the contract required, and the defendant was justified in refusing it. The failure to consummate the sale
occurred, therefore, through the plaintiff's default, and he was not entitled to recover for the defendant's occupancy pending the negotiation.
Ibid.
2199. Vendee a tenant at will. The estate of one in possession of lands under a contract of purchase, is that of a tenant at will.
Dwight v. Cutler, 3 Mich., 566; Crane v. O'Redley, 8 Mich., 312.
2200. A clause in the contract, that on default by the purchaser the
seller might declare the contract void, and the purchaser should thereafter be deemed a mere tenant at 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'Reily, 8
Mich., 312.
2201. Notice to quit may be waived by the purchaserin such a
contract. Ibid.
2202. ]Forfeiture. The contract will 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 PERFORMANCE.
2203. Effect-of vendor terminating contract. A vendor having, on default by the vendee, elected to treat the contract as
275




~ 2209           LANDLORD AND TENANT.
void, and having given the 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. Goodspeed v. Dean, 12 Mich., 352.
2204. Effect of release by vendee. Where the vendor in
an executory contract for the purchase of lands, receives from the vendee 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 Lansingburg, 12 Mich., 361.
LAND WARRANT,
2205. The holder of a land warrant has an absolute right to locate
land with it, and to receive a patent therefor. Merrill v. Hartwell, 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 Pensions 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 Commissioner 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, 2 Doug., 117; Blanchard v. Tyler, 12 Mich., 339; lNites v. Ransford, 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 accepts 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, I Doug., 179.
2209. Eviction. Where a tenant-is dispossessed by one who enters.under a paramounttitle, such entry is equivalent to an eviction by
276




LANDLORD AND TENANT.                     ~ 2216
legal process, and will excuse the tenant from paying rent to the landlord. The tenant is not bound to retain possession until actually expelled 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.alandlord, 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 continuous possession inconsistent with the possessory right assured to the
tenant by the lease, such possession amounts to an eviction, and preeludes the recovery of rent while it continues. Day v. Watson, 8 Mich.,
535.
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 inhibit 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 afterwards assigned the lease to C. A. assented to the assignment, and
agreed, by parol, to accept- C. 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. 342, ~ 9vhich. declared that " no lease, &c., shall at any time hereafter be assigned, granted or surrendered, unless it be by deed or note in writing,
signed," &c., " or by operation of law;" and that A. could. not afterwards maintain covenant against B. for the rent. Logan v. Anderson, 2
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 no277




~ 2222                      LIBEL.
-tice to surrender possession before the proceedings can be taken to dispossess him. And this month's notice must terminate with one of the
regular monthly periods.. Huyser v. Cha8e, 13 Mich., 98.
2217. Where premises are let at a fixed monthly rent, with the understanding that the tenant shall give up possession whenever the landlord 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. Michae, 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'ach
succeeding week, or other interval of time, in which to make the payment. Sherlock v. Tlhayer, 4 Mich., 355.
LIBEL.
2219. What is libelous. It is not libelous to publish of and concerning one who is a druggist, "The above druggist in the city of Detroit refusing to contribute his mite with his fellow merchants for watering Jefferson 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. Soule, 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.
2222. Action based upon the publication of the following Words:
"It must be and is painful to all who feel the force of conscientious impulses, and who regard the solemn responsibility of an 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 township; 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 sufficiently alleged. Ibid.
278




LIMITATION OF ACTIONS.                   2228
LIBRARY MONEYS.,
2223. Under'the present constitution and statutes, all moneys'which
are paid into the office 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. Peope v. Treasurer of Wayne (Countv,
8 Mich., 392.
LIMITATION OF ACTIONS.
2224. The statute of limitations is a statute of repose, as well as of
presumption. Jewett v. Petit, 4 Mich., 508.
2225. New promise. Where awew 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
Eyck v. Wing, 1 Mich., 40.
2226. The acknowledgment should contain an unqualified and direct admission of a present subsisting debt, which the party is liable
and willing to pay, and be unaccompanied by circumstances or declarations which repel the presumption of a promise or intention to pay.
Ibid.
2227. Debt on judgment recovered in 1824. Plea, statute of limitations. Replication, that in November, 1882, a pluries -executionwas
taken out on the judgment; that on the 17th of the same month, defendant filed a bill in chancery and obtained an injunction restraining
proceedings on the execution; that on November 17, 1835, it was stipulated between the parties to the chancery suit, that the injunction be
dissolved; that the pFuries execution be set aside; that there be a reference to a master to take testimony in the chancery suit, and to' state
an account between the parties; to state the amount due upon' the' judgment, 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
that 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' replication 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 implication of a promise to pay), or that the debtor, by the partial' pay
~.'~qO




~ 2234           LIMITATION OF ACTIONS.
ment, admitted his obligation to pay the residue, the demand is not
revived. Jewett v. Petit, 4 Mich., 508.
b229. Payment. The indorsement of a partial payment upon a
promissory note, written.by the party to be charged thereby, is competent evidence-of such payment to take the case out of the statute.
Chatdler v. Lawrence, 3 Mich., 261.
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, 2227, 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 Eyck v. Wing, 1 Mich., 40.
2232. Suit being commenced in justice's Court, the plaintiff employed 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 anothtr 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-e
menced," &c., "the suit shall fail of a sufficient return, by any unavoidable 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 mater 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. McQuemen, 1 Mich.,
252.
2233. The term "persons beyond seas," in the statute of 1820 —
Code of 1833, p. 569-meant persons out of the State. Hulburt v. Merialn,: 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 then 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 ejectment 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 relating to the same subject, that the action was barred by the act of 1829.
Lastly v. Craier, 2 Doug., 307. And see Hulburt v. Merriam, 3 Mich.,
144.
280




MANDAMUS.. 2240
2235. 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 Revised 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. Hepburne, 4 Mich., 165.
LOG DRIVING AND BOOMING COMPANIES..
2236. Constitutionality. The act for the formation of Log
Driving and Booming Companies-Comp. L., ch. 66-in so-far as it
provided for the formation of companies, and their power to make. contracts, was constitutional and valid. Ames v. Port Huron Log:Driving
and Booming Co., 6 Mich., 266. [See supra, 622, 623, 625.]
2237. Organization. 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 with. 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 operations. 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. 23.
MAND'ANUS.
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 Circuit Court, 1 Doug., 319.
281:




. 2249                  MANDAMUS.
2241. Mandamus to compel the Circuit Court to quash an attachment, where thei original affidavit was void, and a new one had been
alllowed to be filed in its stead, was refused. The proper remedy is biy
certiorari. Ibid.
2242. lMandamus 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 of CaGhoun
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 declaration from the files 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. Peope v. Judges of Washtenawe CGircuit
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 received thereon by the officer from the county treasurer-such a warrant
not being the subject of levy on execution. People v. 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. Marathon v. Oregon, 8 Mich., 372.
2246. Its 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 ministerial act, but not to inquire into the proper exercise of judicial discretion;. People v. Auditor General, 3 Mich., 427.
2248. Though generally used to enforce the performance of public
rights and duties, it may also be resorted to for the enforcement of private rights, when withheld by public officers. People v. Supervisor of.Macomb, 3 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 UTniversity, 4 Mich., 98. See also, People v. Inspectors and Agent of
State Prison, 4 Mich., 187.
2250. A corporator may apply for the writ, to compel the custodian 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 curiosity. 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 corporation, 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. 1 bid.
2252. Practice. The writ will not be granted where the application is for something different from that for which the party has laid
the foundation. The refusal of the Circuit Court to grant a motion for
an assessment of damnages 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 Court, 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. People v. Township Board of
La' Grange, 2 Mich., 187.
2254. An order to show cause why a peremptory mandamus should
iiot 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 defendAnts'were a public body, and it did not appear that they had acted, in
bad faith. People v. Auditors of Wayne County, 5 Mich., 223.
283




~ 2263                MARITIME LAW.
MARITIME LAW.
2257. General average. The steamer Missouri, being a new
and seaworthy boat, 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 passengers. 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. Rossiter v. Chester, 1 Doug., 154.
22568. The doctrine of general average is known only to the maritime law, and cannot-be enforced in a Court of common law jurisdiction.
Ibid.
2259. Pro rata freight. Freight pro rata itineris is due when
the ship, by inevitable necessity, is forced into a port short of her destination, 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, ksnowing that the voyage had -been
abandoned, its further prosecution having become impossible, or extremely hazardous, he there demanded his goods of the agent of the forwarders, 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 plaintiff; not'only to show negligence on the part of the defendant,
but ordinary care on his own part.  Drew v. Steamrnoat Chesapeake, 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 persons 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 prevented it; and each party should act upon the presumption that the
other party will adhere tothe 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 furnished in the construction of a building, attached only upon the interest
of the person for whom it was erected;'and did not incumber any preexisting right or title of any other person. Scales v. Griffin, 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 performance of a condition precedent, and that right was afterwards lost by his
failure to perform the condition, subsequent proceedings to enforce the
lien would convey no right or title to the purchaser. Ibid.
~2266. When 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 v. Baughman, 9 Mich., 213.
2267. A tender, sufficient in amount, will discharge a mechanic's lien for the repair of personal property; and, if not accepted,
the creditor must thereafter rely upon the personal responsibility of
his employer. Moynahacn v. -Moore, 9 Mich., 9.
MICHIGAN CENTRAL RAILROAD COMPANY.
226S. It is provided by section five of the charter of the Michigan
Central Railroad Company-Laws 1846, p. 43 —that no railroad or railroads 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 constrhction
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 prohibition contained in said section did not prevent the Michigan Southern
Railroad Company from completing-the construction of the Tecumseh
285




Ut2274     MICHIGAN SO.UTHERN RAILROAD CO.
branch of their road, from its junction with- their main line to Jackson
on the line of the Michigan Central Railroad Company. Michigan Central R. B. Company v. Michigan Southern R. R. Co., 4 Mich., 361.
2269, For construction of the 16th section of the charter, see Mi-'#gan Central Railroal Co. v. Hale, 6 Mich., 243, overruling AC..R.
Co..Ward, 2 Mich., 538. And see supra, 487 to 494.
MICHIGAN SOUTHERN RAILROAD COMPANY.
2270. IRight to land for their route. Certain lands lying
east of the village of Hillsdale, were, in the year 1838, taken and appropriated 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 1838, providing for the acquisition of lands for tihe
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 adjudicited 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 v. McAdam, 3 Mich., 506.
2271. Taxation. Under the charter of said company-which subjects 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 constructing their road, or purchasing, constructing, chartering or
hiring of steamboats authorized'by the charter-the company cannot
claim exemption from taxation on sums of money paid out for commissions and other expenses attending the sale of its bonds and the obtaining of loans. 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 worthless securities, whereby it became lost to the company. Ibid.
21*3. Whether a deduction from the taxable amount should be
made of bonds of the company which were loaned, and for which worthless securities were subsequently taken in payment, quere. Held in 4
Mich. 398, that it should not. In 9 Mich. 448 the: Court was equally
divided on the question.
2274. Whether the amount of the bonds of the company issued for
286




MILI;RS AND: MILL: OW9WNERS., i2279
loans, is to be taken as'the amount ofits loans, for the purposes of taxation, or whether from this amount should be deducted the discount
allowed on the sale of the bonds, quere. 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 received therefor;-the allegation not being sustained by the facts in the
case. 4 Mich., 398; 9 iVich., 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 consolidation 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
X1ichigan. It was held, that the act of consolidation was not designed
to..hange the principle of taxation fixed by the original charter of the
Michigan company, but that allthe stock and loans formerly taxable were
to continue taxable without diminution by losses or unproductiveness.
And 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 employed in the State of Michigan," in the act of consolidation, has n'reference to the actual use of the property purchased by the company,
but is,merely'designed to distinguish the Michigan investment from the
Indiana investment. 9 Mich., 448.
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. ahill, 8 Mich., 55..22.783. Under this statute, millers who 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 running, as to grind it when received. Ibid.
2279. The conversation between the person bringing grain to. the
mill to be ground, and the agent of the owner, who, under the.owndr's direction, refuses to receive the grain, is competent evidence, as
$87




~ 2287           MORTGAGE'OF CHATTELS.
part of the res gestal, in a suit against the owner, under the statute,
for such refusal. Ibid.
2280. Where two or more persons own and run such a mill, they
are all 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.
2281. Is a transfer of title. By a mortgage of chattels the
legal title to the property mortgaged passes to the mortgagee upon condition; and upon breach of condition this title becomes absolute. Tannahill v. Tuttle, 3 Mich., 104.
2282. Right of possession.  The general title being in the
mortgagee, he is entitled to immediate possession, to hold until condition performed, unless the parties otherwise stipulate. Ibid.
2283. If the mortgagor is suffered to retain possession, such possession 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.
Ibid.
2284. Levy on mortgaged propeity. The mortgagor's interest 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
if that period has elapsed. Ibid.  Eggleston v. Mundy, 4 Mich., 295;
Bacon v. Kimmel, 14 Mich.
2285. 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 reserved to the mortgagor. Tannahill v. Tuttle, 3 Mich., 104.
2US86. 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. Eggleston v. Mundy, 4 Mich.,
295,
2287. Where the officer levied upon the property, and offered the
same for sale, but being informed of the mortgage, changed his ofer to
288




MORTGAGE OF CHATTELS.                   ~ 2294
a sale of the mortgagor's interest, and made return that he had levied
upon the property and sold alU the debtor's right therein, which was bid
off by a third party; it was held that the sale so made protected neither
the. officer nor the purchaser from liability to the mortgagee. Ibid.
2288. 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.
2289. What is not a mortgage.  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 possession 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. Hall,
8 Mich., 66.
2290. What is. A debtor assigned to his creditor certain shares
of railroad stock, and at the same time gave a note for the debt, reciting 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 takeni as forfeit for the above payment." This constituted
Jn legal effect a chattel mortgage of the stock, under which the holder
of the note was entitled to possession of the stock certificates. Davis
v. Rider, 5 Mich., 423.
2291. 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.
YMead, 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.. Curtisv. Phillips, 5 Mich., 112.
2293. As against others than the parties to the mortgage, " one sorrel 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. Notice and record of mortgage. Notice of the existence of an unpaid prior mortgage of personal property destroys the
preference which a'second mortgagee might otherwise be entitled to
claim in consequence 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 statute..WethereU 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 mortgagee in good faith, within the meaning of the statute. Wetherel lv.
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 taking a conveyance 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 files before his
purchase had been made. Woodruff v..Philips, 10 Mich., 500.
2299. A chattel mortgage properly filed is a public record, and belongs to the office; and the clerk has no right to deliver it to the mortgagee to be taken away. If allowed to be taken from the files and afterwards returned, no second indorsement of the filing by the clerk is necessary 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 description was not produced, but one of a different date was offered 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. Hinchman v. Towon, 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 refuses 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. Fuller v. Parish, 8 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 OF LANDS.                    ~ 2308
assignee of sufficient of the property to satisfy the debt, would extinguish his interest in the property, and the residuum of the mortgage interest, if any, would revert to the mortgagee. Place v. Grant, 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 mortgage collateral to the note. Thwrber v. Jewett, 3 Mich., 295. But it is a
waiver of the forfeiture of the condition of the mortgage. Ibid..
2'05. Redemption after forfeiture. A mortgagor of chattels, 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. Wakelee, 11 Mich,
177. See on the same subject, Tannahill v. Tuttle, 3 Mich., 104.
2306. Illegal conditions. A chattel mortgage'of a stock of
goods, which leaves the mortgagor in possession, and by inference authorizes him to sell in the usual course of business, is good between the
parties, and not necessarily fraudulent as to creditors.  Gay v. Bidwel4
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 seuiired,
Ibid.
2306b. A creditor who does not show that he was"suchat the time of
the giving of such a mortgage, is not in a position to attack it as fraudulent, on the ground that it allows the mortgagor to remain in possession
and dispose of 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 dispose 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 proceeds 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,
Oliver v. Eaton, 7 Mich., 108.
MORTGAGE OF I1ANDS.
2308. A deed absolute on its face,.given by a'debtor to
his creditor, may in equity be shown b w parol to have been. given- t
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.  Wadasworth v. Loranger, Har. Ch., 113;
F.Emerson v. Atwater, 7 Mich., 12.
2309. 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 redeem. Ibid.
2310. 1Mortgage or trust. A. conveyed a farm to B., his sonin-law, in consideration of $2,500. 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 hypothecated 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. CUampa/u v. Cene, 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.  Comstock v. Howard, Wal.
Ch., 110.
2312. Equitable mortgage. An agreement in writing, intended 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. G(odfroy's heirs,
1 Mich., 178.
2313. In form  of contract of purchase.  Where A., being indebted to B. in the sum of $2,000, secured on real estate, conveyed to him the same real estate, and took back a contract for the
purchase of it from B. for $2,000, payable as therein specified, which
contract provided that " time is now, and shall be at all times, considered and deemed a material part cf this contract;" and that on default being made by A. in any of its conditions to be performed by,
him, he should thereupon forfeit all rights under the same; and be
292




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. Swnok, 5 Mich., 231. And see to the same effect, Enos v.'Sutherland,
11 Mich., 538.
2314. If the creditor, in such a case, conveys the land to a bona
fide purchaser, he must account to the debtor for its value at the
time of the sale, whether he received that amount or not. Enos v.
Sutherland, 11 Mich., 538.
2315. Where a contract is thus given, which is really an instrument of defeasance, it is not essential that it be sealed. Ibid.
2316. In doubtful cases, Courts 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. Swettand v. Swetland, 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 transaction 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 construed a mortgage. Ibid.
2319. Nature 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 failure 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 reconveyance is necessary. Caruthers v. Humphrey, 12 Mich., 270; Vfan Husan
V. Kanouse, 13 Mich., 303. And see Ladue v. Detroit and Mibwaukee
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, assigned 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




~ —2323            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.
2. That the assignor, or those claiming under him, would be entitled
to this-surplus from the assignee or any person claiming through him,
at whatever period in the future it might be collected.
3. That, the mortgage itself being executed prior to, the statute abolishing 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.mortgagor 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 asserting 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. G(raydon t. Church, 7 Mich., 36.
2321. Consideration. Foreclosure by assignee. The mortgagee 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 mortgagors, without any consideration moving from or to him for the mortgage or assignment. Held, that this evidence cast upon complainant
the burden of proof to show a consideration for the mortgage. Bi8hop
v. Fdch, 7 Mich., 371.
2322. A mortgage was given to secure the payment of judgments
confessed by the mortgagor, but which were void for want of compliance with the statute. Bill being filed to foreclose, and no proof made
of any indebtedness, the bill was dismissed. Austin v.& Grant, 1 Mich.,
490.
2323. Bill to foreclose a mortgage conditioned foir the payment of a
certain sum of money. Held competent to show in defense, byparol
evidence, that the mortgage was given to indemnify sureties in a recog294




MORTGAGE OF LANDS.                   ~ 2328
nizance of bail, and that the liability of the sureties had been discharged
without their being damnified. Colman 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 premises covered by the first mortgage, and cause the buildings to be insured
for $2,000, 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 should discharge the second mortgage. J. built on the
I: remises 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 agreement to keep insured. Chapin v. Jacobs, 10 Mich., 405.
2325. Conditioned for support: who may foreclose.
A mortgage conditised for the support of the mortgagee by the mortgagor, during her lifetime, cannot be foreclosed for the benefit of persons 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. Da.diels v. Eisenlord, 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. Hopkilns, 2 Mich., 96.
2327. Indemnity. Where a mortgage is conditioned to indemnify a surety, the mortgagee cannot foreclose until he has been damnifled. 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
295




~ 2335             MORTGAGE OF LANDS.
rid h'mself of responsibility. -Thurston v. Prentis;, 1 Mich.,- 193. And
see Dye v. Mann, 10 Mich., 291; Butler v. ladue, 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 mortgagees 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. v
Ladue, 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 coextensive 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.
Ibid.
2331. For  future advances or liabilities.'Where a
mortgage is given to secure -the mortgagee for liabilities which it is -optional 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. Ladue v. Detroit and Milwaukee Railroad Co., 13 Mich., 380.
2332. The mortgage being. duly recorded is notice to a subsequent
purchaser; but he is chargable with notice oily to the,extent of
the liabilities which had been actually incurred prior to his purchase.
Ibid.
2333. For excessive amount. Where, in a conditional pardon, 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' residue. Rood v. Winelow, Wal. Ch., 840, 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 -mbrtgage, takes subject to it. Michigan Insurance Co. v. Brown, 11 Mich., 265.
2335. Attorney's. fee in mortgage. A mortgage empowered 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 attorney's'fee, should any proceedings be taken to foreclose this inden296




MORTGAGE OF 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 on foreclosure in
equity. Sage v. Riggs,-12 Mich,, 313,
233-6. Once a mortgage always a mortgage, -is a maxim
of equity. Thompson v. Mack, Har. Ch., 150; Batty v. Snook, 5 Mich.,
231; Corstock v. Howard, 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 (lone 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. Sehwarz v. -Sars, 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 mortgagor out by ejectment. Stevens v. Brown, Wal. Ch., 41; Mundy v. Monroe, i Mich., 68.
2340. But now it is provided by statute that " No action, of ejectment shall hereafter be maintained by a mortgagee, or his assigns or
representatives, forthe recovery of the mortgaged premises, until the
title thereto shall have become absolute upon a foreclosure of the mortgage." Comp. L., ~ 4614. This statute is invalid as applied to mortgages
given before its passage. Mundy3 v. Monroe, 1 Mich., 68; Blackwood v.
Van VWeet, 11 Mich., 252.
23t41. 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; Crippen 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. CGrippen v.
Morrison, 13 Mich., 23.
2343. Tacking. The English doctrine of tacking mortgages has
never been adopted in this country. Wing v. McDowell, 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




~ 2352             MORTGAGE OF LANDS.
relates to a conveyance which, on its face, purports -to be absolute.
Russell.: Waite, Wal. Ch., 31.
2345. Rights 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 indicating 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: existence 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 intentional disregard of the interests of such subsequent mortgagee. James
v. Brown, 11 Mich., 25. And see Cooper v. Bigley, 13 Mich., 463.
2347. Notice of a prior incumbrance to charge a subsequent incumbrancer or purchaser, need not come from a partyin interest. Willcox v.
HIil, 11 Mich., 256.
234S. 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:inquiry, it is enough. Ibid.
2349. Taxes. Taxes upon mortgaged landstare 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. Horton v. Ingersoll, 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.
2351. 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. Cooper v. Bigley, 13 Mich., 463.
2352. Assignnment.  The -assignment iof 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
unless it is otherwise agreed between the parties at the time. Cooper-.
Ulmann, Wal. Ch., 251. See also Ma/rtin v. MoReynolds, 6 Mich., 70;
Dougherty v. Randall, 8 Mich.,.581.
2.353. 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 preference 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. U-lmann, Wal. Ch., 251.
2354. The assignment oft a mortgage,' without the debt which it is
given to-secure, carries no beneficial interest in the mortgage to She assignee, who would hold it subject to the will and disposal of the
creditor. Bailey v. Gould, Wal. Ch., 478.
2355. Void proceedings having been taken to foreclose a mortgage,
and the holder of the mortgage having bid in the premises, he afterwards sold them and gave a warranty deed thereof. It was held, that
this deed conveyed his mortgage interest in the lands. Niles v. Ransford, 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.
t3&57. 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. Russell. Waite, Wal. Ch., 31; Dutton
v. Ives, 5 Mich., 515; Niohols v. Lee, 10 Mich., 526; Bloomer v. Hender8on, 8 Mich., 895.
2358. But if the mortgage.is given to secure a negotiable promissory note, and is assigned before the note is due, the assignee is-not
affected by any equities between the original parties. DDutton v. IAes, 5
Mich., 515; Reeves v. Soully, Wal. Ch., 248.
2359. Nor does the assignee take the mortgage subject to any equities 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.
Bloomer 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 account for the profits of the mortgaged premises, of which the crops he
299




~ 2369             MORTGAGE OF LANDS.
may have appropriated or destroyed will be considered a part. Stevens
~ v. Brown, Wal. Ch., 41.
2361. Annual rests directed in adjusting accounts, and interest computed on each item- of the account, where this course was found to be
warranted by the practice of the parties. Einers6n v. Atwater, 12 Mich.,
314.
2362f Foreclosure under power of sale,  If irregular,
the mortgagee may:- waive it,. and proceed anew in equity. Atwater v.
Kinman, liar. Ch., 243; -Gilbert v. Cooley,,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. Gilbert v. Cooley, Wal. Ch., 494. See
supra, 2355.
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. Willard'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 foreclosed in the same manner, and with the like effect, as if such separate
mortgages were given for each of such subsequent installments," &c.
omp. -.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. NiDes v.
Ransford, 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 parcels 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. Ibid.
236S. 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 affidavit of publication of notice of sale, made between
300




MORTGAGE OF LAND$.                   ~ 2376
seven and eight years after the sale took place, was held not presumptive evidence of the facts therein stated, under R. S. 1838, p. 501
~ 9. Iundy v. Monroe, 1 Mich., 68.
2370. Foreclosure in equity: marshalling  seeurls
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 v. Bigley, 13 Mich.,
463.
~2371. An exception of the mortgage from the covenants of warranty 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.
2372. One who purchases a parcel of land, subject to a mortgage
upon that and other property, and with full record notice of a conveyance 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.
2373. Whe* 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 resorting to the common fund. Trowbridge v. Harleston, Wal. Ch., 185.
2374. Where A. had a mortgage upon lots one, two and three,, and
B. had a subsequent mortgage upon lot three, and they,having no knowledge of conveyances which had been made of lots one and two subsequently to their mortgages, conjointly released a part of lot three, it was
held that B.'s equitable right to have lots one and two first sold was not
thereby affected. Cooper v. Bigky, 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 decree in the usual form will bar his rights under the mortgage of the
lands, but will leave his chattel mortgage unaffected. Crippen v. Mor-'ison, 13 Mich., 23.
2376. Surplus moneys on foreclosure. A levy of execution on the mortgaged lands, made at a time when the mortgagor (and
judgment d'ebtor) had no title to it, and not followed by any sale by virtue of it, will not entitle the judgment creditor to the surplus moneys
after foreclosure, notwithstanding the mortgagor, pending the foreclos801




~ 2382             MORTGAGE OF 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  mortgage. 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 different vendees, in the inverse order of
alienation. Masonv. Payne, Wal. Ch., 459. See supra, 2371-2374.
237S. 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 became 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. Ibid.
2380. Where a portion of the land covered by a mortgage is conveyed 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 beft e conveyed shall be first sold to satisfy the mortgage, before resort mi'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. Caruthers v. Hall, 10 Mich., 40.
23S1. 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 defeating the second mortgage. Johnson v. Johnson, Wal. Ch., 331.
2382. 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.
302




MORTGAGE OF LANDS.                    ~ 2390
Caruthers v. Humphrey, 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 property resold, although the mortgagee may have abused the power to
sell, and purchased the property himself: Schwarz 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..Kimmdel. Wiltard's Administrators, 1 Doug., 217.
23S5. 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. Johnson 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 mortgage 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 v. Williams, 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 payment, to destroy the deed, and pay over the money to the purchaser,
his heirs or assigns. Woodbury v. Lewis, 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.
Ibid.
23S9. The register's receipt is not conclusive evidence of the payment 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 obtained, 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 decreed to redeem by paying the amount of both the A. and C. mortgages,
303




~ 2399          MUNICIPAL CORPORATIONS.
and costs, or be foreclosed. Pj. 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 paying the amount of both. Baker v. Pierson, 6 Mich., 522.
2391. Payment and satisfaction.  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. And see, PEace v. Grant, 9 Mich., 42.
2392. An agreement to discharge a mortgage in consideration of
something to which the holder was legally entitled before, is void for
want of consideration. Davis 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. Seymrour, 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.
Lee, 10 Mich., 526.
MUNICIPAL CORPORATIONS.
2395. Nuisance by. A municipal corporation which creates a
public nuisance, is prima facie liable for its continuance. Pennoyer v.
Saqinaw, 8 Mich., 534.
2396. Injunction against. If Courts of equity have jurisdiction to interfere by injunction, to restrain the action of a municipal corporation, 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. ChaffTee v. Granger, 6 Mich., 51.
2397. Sewers. 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, &c., of Detroit, 4
Mich., 485.
239S. The payment of a sum annually by an individual for the privilege of connecting his drain with a public server, 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 conse804




NAVIGABLE WATERS..                   ~ 2407
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 excavation 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 v. Village of Adrian, 1 Mich., 495. See People v. Mahaney,
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. S. 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, &L., of the Village of Romeo v. Chapman, 2 Mich.,
179.
2402. Justices of the peace, under the Statutes of 1846, had
no jurisdiction of suits against municipal corporations.  Root v. City of
Ann Arbor, 3 Mich., 433.  See also, Comp. Laws, ~ 3700-; Gurney v.
gityof St. Clair, 11 Mich., 203.
NAVIGABLE WATERS
2404. Provision  relative to, in  Ordinance of'8.7
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 possessed by the inhabitants of that territory; and to prevent any tax or
duty on persons navigating them. La Plaisance Bay Harbor Co. v. City
of Monroe, Wal. Ch., 155.
2405. There is nothing in the ordinance prohibiting the State from
improving its navigable waters through a corporation empowered thereto. Ibid.
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 prevailthere.
Moore v. Sanborne, 2 Mich., 519.
2407. What 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




~ 2414              NAVIGAB WATERS.
capacity for valuable floatage, irrespective of the fact of actual publiqc
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 following a particular occupation, does not prevent such stream assuming
a public character. In the new States of the Union, from necessity andthe nature of things, use cannot be the foundation of the public right.
Ibid.
240S. The true test in determining the right of public use in fresh
water streams, as public highways, is, whether the stream-is inherently
and in its 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 streamj
all 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
public 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 -Compiled 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. Pecple, 8 Mich., 320.
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 of 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. Lorwin v. Benson, 8 Mich., 18.
2413. Ownership of bed of stream. The common law
principle, that the soil under such tideless public rivers to the thread
of the stream is in the owner of the adjacent bank, prevails here, and
i applicable to the Detroit river. Ibid; overruling La Plaizanee Bay.Tapike Co. v. City of Monroe, Wal. Ch., 155. See the same principle
of private ownership applied to lake Muskegon. Rice v. Ruddiman, 10!ichi., 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 interferes with such use-like an obstruction which prevents the taking of
306




NEGLIGENCE.                      ~ 2422
ice-gives him a right of action for the- damages thereby occasioned.
Lorman o. Benson, 8 Mich., 18.
2415. Rights of the public. The right to raft logs dowp a
stream does not involve the right of booming them upon private property, 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.  Williams v. Michigan Central Railroad
Co., 2 Mich., 259. And see Michigan Central Railroad Co. v. Leahey,
10 Mich., 193.
2417. Respondeat superior.  Where an employee is exercising 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.
De Forest v. Wright, 2 Mich., 368.
2418. This principle applied to the case of a licensed drayman, employed to draw merchandise from a warehouse and deliver at the store
of his employer, and through whose carelessness a barrel of the merchandise 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 unskilfully performed. Moore v. Sanborne, 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
running of the logs, until they reached the point of delivery, nor obliged to render any assistance, pecuniary or otherwise, in the cutting or
running of the logs. It was held that the relation of master and servant 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. Liability 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 Railroad Co. v. Leahey, 10 Mich.,
199.
307




~ 2428                      NOTICE.
2423. Municipal corporations: negligence of contractor. 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 r'ght, but only
as agent of the corporation under the contract. Ibid.
2425. The power conferred upon the city of Detroit to construct
sewers under public streets, is not a power given to the city for governmental purposes, or a public municipal duty imposed on the
city-like that to keep its streets in repair, or the like-but a special legislative 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 corporation 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. Ibid.
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 bound for the performance of these
obligations, and cannot rid itself of their performance by executing the
power through an agent. Ibid.
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 excavation fenced in, and'carefully guarded to prevent accidents; and provided 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.
242S. In equity, that is notice of a right which is sufficient to put
parties on inquiry. Borris v. Showerman, 2 Doug., 16. And see, Rood v.
Chapin, Wal. Ch., 79; Godfroy v. Disbrow, Wal. Ch., 260; Disbrow v.
308




OFFICER.                       ~ 2434.Jones, Har. Ch., 48; Hubbard v. Smith, 2 Mich., 207; Bloomer v. Henderson, 8 Mich., 395; James v. Brown, 11 Mich., 25; Willcox v. Hill, 11
Mlich., 256.
2429. Through title deeds. Where a purchaser cannot make
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. Hill, 1 Mich., 202;
Fitzhug7h 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 (,ut a case of novation, which makes it necessary to sue in
the name of the assignee. Teift v. McN2oah, 9 Mich., -201.
NUISANCE.
2431. Abatement of. The power to abate a nuisance consists
in the removal of that in which the nuisance consists.  Welch v. Stowell,
2 Doug., 332.
2432. The nuisance of a house of ill-fame consists not in the building itself, but in its being used as a resort 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 suppressing houses of ill-fame within the limits of the city, " have the right to
abate the nuisance by demolishing the building. Ibid.
OFFICER.
2433. Protection by process.  Where a defendant, in an
action of replevin, rests his claim to the property upon a seizure as constable, by virtue of an execution, he must, before proving the execution,
show a valid judgment upon which it issued; and he will fail to establish any right to the property by virtue of the levy, if it appears that
the judgment was void, or had been paid before the issuing of the
execution. Beach v. Botsford, 2 Doug., 199.
2434. The rule that a ministerial officer is protected in the execution 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




~ 2440                     OFFICER.
right to property; and not whether the defendant is a trespasser, is in
issue. Ibid.
2435. A ministerial officer executing, in good faith and without oppression, a warrant regular upon its face, and issued by an officer having 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. Ortman v. Greenman, 4 Mich., 291.
2436. Where an officer levied upon goods, and after offering 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 offer to a sale of the defendant's interest in the
goods, and sold accordingly; it was held that a sale in this form did not
protect him from liability to the mortgagee, who might either replevy
the goods, or recover the value from the officer and purchaser. Egglestan 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 notoriety, 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 information and to determine the fact. People v. Rix, 6 Mich., 144.
243S. 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 appoint 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 himself. A public officer charged with the
duty of selling property for the best price, cannot himself become the
purchaser. As a county treasurer, who has charge of the sale of: lands
for delinquent taxes. CZute v. Barron, 2 Mich., 192. And see Walton
v. Torrey, Har. Ch., 259; Ingerson v. Starkweather, Wal. Ch., 346; People
v. Township Board of Overyssel, 11 Mich., 222.
2440. Return of, when not binding on third parties.
310




ORDINANCE OF 1787.                  ~ 2446
Where a sheriff 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 return 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. NaaUv. Granger, 8 Mich., 450.
-2441. lRestricting 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 appointment. Stadler v. City of Detroit, -13 Mich., 346.
2442. Appointment to office when a removal ofineumbent. 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 appointment does not have the effect to remove the incumbent. Ibid.
2443. Offlcers 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. Fuller, 13 Mich., 527. See supra, 757. See also, Quo Warranto.
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 constitution, were then annulled by mutual consent. La Plaisance Bay Harbor
Co. v. City of Monroe, Wa. -Ch., 155.
2445. The ordinance was enacted before the constitution of the
United States, with a view to the existing circumstances; and was intended 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 ordinance 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 no311




~ 2452                 PARTNERSHIP.
thing in the ordinance prohibiting the State, when formed, from improving through corporations its navigable waters. Ibid.
2447. The declaration in the ordinance that "the navigable waters
leading into the Mississippi and St. Lawrence, shall be common highways, and remain forever -free," supersedes the common law doctrine
of the necessity of usage or custom to establish a public nrght, even if
that rule would otherwise prevail in the region over which the ordinance extended. Moore, Sanborne, 2 Mich., 519.;
2448. Right to form a State government.  Article V. 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 could 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 necessity, have preceded her admission into the Union by. Congress., Scott
v. Detroit Young Men's Society's Lesee, 1 Doug., 119.
2449. The assent.of 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 no third party to which the
State could resort to enforce such compliance. Ibid. And see STATE
OF MICHIGAN.
2450. When the ordinance became operative in Michigan. The territory comprising the.present State of. Michigan remained 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. Godfroy's heirs, 1
Mich., 178.
PARTNERSHIP.
2451. Construction of agreement for.  Where the question of partnership arises, not with third persons, but between the
parties themselves, the agreement out of which the supposed partnership 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 compliance 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
312




PARTNERSHIP.                     ~ 2461
firm,~ it w'as hked that this was no waiver, and could not entitle the defaulting party to the rights of a partner. Ibid.
2453. Agency of partners. Where a member of a mining
company, who was also one of the- managers of the company, employed the plaintiff 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. Burgan v. Lyell, 2 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. Ibid. See
Moran v. Palmer, 183 Mich., 3867.
2455. But one cannot bind his co-partner by any contract not
within the immediate scope of the partnership, unless with such copartner's knowledge and assent. Bancard v. Lapeer and Port Huron.Plank Road Company, 6 Mich., 274.
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-partnership 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. Ibid.
245S. 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 corporation, and become liable to pay the subscription, by failing to express
his dissent when demand of payment was made upon the firm. Ibid.
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. Hotehin v. Kent, 8 Mich., 526.
2460. The articles of a joint stock mercantile association prohibited
the officers intrusted with the conduct of its business from making purchases on credit. They, notwithstanding, made a purchase on credit,
first giving the seller a copy of the articles.,Hed, 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. Norton, 9 Mich., 207. And see Sweetzer v.
Mead, 5 Mich., 107.
2463. A bond was declared upon as the individual bond of two defendants. The bond offered in evidence was signed by one with the
name of a co-partnership composed of the two, but there was no evidence that it was executed by the one in the presence of the other, or
that- the other had previously assented to its execution, or subsequently
recognized or ratified it as the act or obligation of the firm. It was
held, that the action could not be maintained. Fox v. Norton, 9 Mich.,
207.
2464. Presumption of authority. Where one member of
a co-partnership gives a note in the co-partnership name, the presumption is that it is given for partnership purposes; and the burden of
proof is upon the co-partnership to show the contrary. Littell v. Fitch7,
11 Mich., 525.
2465. Ratification. Where a third person does an act for the
benefit of a partnership, a subsequent ratification of it, during the partnership, by one of its members, is a ratification by all. Lyell v. Sanbourn, 2 Mich., 109. See further as to ratification, supra, 2458 to 2461.
2466. Where two persons who have entered into a contract for a copartnership 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. Dow, 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
v. Lyell, 2 Mich., 102.
2468. Admission by partner. The acknowledgment by one
partner during the continuance of the partnership, of a debt as due by
the partnership, will 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 except as to claims so barred by the statute, and others coming within- a
similar reason, the admission of one partner, made after such dissolution, having reference to previous actual partnership dealings or transactions, stands upon the same ground, and is evidence against the firm
314




PARTNERSHIP.                      ~ 2476
in like manner, as if made before the dissolution. Pennoyer v. David, 8
Mich., 407.
2470. But such admission, made after dissolution, must be confined
to cases where there has been in fact previous partnership dealingswith 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 partners 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 pers6nal property, unless at the time of the purchase it was understood not
to be a partnership transaction. Thayer v. Lane, Wal. Ch., 200.
2472.' Lands conveyed to the members of a partnership in satisfaction of a partnership debt, are to be regarded, for all purposes of arranging 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 conveyance from afterwards setting up a claim to the first mentioned lot.
Moran v. Palmer, 183 Mich., 367.
2473. Suits by partners. Where plaintiffs bring suit as partners 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. Hardgrave, 3 Mich., 77.
2474. Partners must sue in their individual names. A writ of replevin issued on behalf of partners in the name of their firm, is a
nullity. Smith v. Canfield, 8 Mich., 493.
2475. An agreement for the formation of a limited partnership, executed 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. Gray v. Gibson, 6 Mich., 300.'J476. 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 themselves, 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 plaintiffs have made themselves partners
as to third persons, they have in fact become general partners, and as
such are entitled to maintain the action. ibid.
2417. Whether persons are partners inter 8e is to be determined by
thunderstanding and intention of the parties as between themselves;
andthey cannot be made such without the assent of every member, and
his actual intention to become a member. Ibid.
2478. Fraud upon the firm  by a partner. If one member 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.
Beckzwith, 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. -Ibid.
2480. 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.
A4twood v. Gillett, 2 Doug., 206.
2481. Remedies of creditors: receiver. It is no objection to the appointment of a receiver to take charge of partnership
effects, that one of the partners has assigned his interest therein to a
third person. Kirby v. Ingersoll, 1 Doug. 477.
2482. Suit against survivor. The presentation to and allowance by commissioners on the estate of a deceased partner, of a partnership 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. Manning v. Wfiliams, 2 Mich., 105.
2483. 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 partnership effects. Connor e. Allen, Har. Ch., 371.
2484. Rights of representatives of a deceased parttier. Where one of several partners dies, and the business is carried
In 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,                       ~ 2492
of the share of the deceased, or to take a share of the profits. MNilard v.
Ramsdetl, Har. Ch., 373.
24~5. Rights of ereditors 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.
Vai, Ear. Ch., 340.
24S6. 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.
24S7. 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 continues the business, leaving the debts of the firm unpaid; and this was
held to be the presumption where the retiring partner transferred the
partnership effects to a partner continuing the business, who agreed to
pay the partnership debts, and gave bond to that effect. Ibid.
2488. Dissolution of the co-partnership puts an end to the authority of one partner to bind the other by contracts. If the firm has
beendischarged from its.debts.in bankruptcy, he cannot revive a debt
afterwards by an acknowledgment of it. Atwood v. Gillett, 2 Doug., 206.
PAYMENT.
24S9. By note. The giving of a promissory note or other security for goods sold is no payment, unless it is specially agreed -to be so
taken. Gardner v. Gorhabm, 1 Doug., 507. See Sorrel v. Brewster, 1
Mich., 373.
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 held, 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 v. 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 w*ll as by direct proof of an express agreement.
Hotchin v. Secor, 8 Mich., 494.
2492. The note of two of several partners was taken for a partner317




~ 2500                   PAYMENT.
ship debt, and this note was afterwards paid in part, and notes on
longer time taken for the balance. Suit being brought against the firm
on the original 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 received:in 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. Sears v. Smith, 2 Mich., 243.
2494. Payment as an admission of the debt claimed.
Payment by the defendant to the plaintiff, pending an action of assumpsit, 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 payment of money into Court. Galloway v. Holmes, 1 Doug., 330.
2495. Endorsements upon notes, unexplained, prove -payment,
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 statute of limitations [Comp. L., ~ 5377]. Michigan Insurance Company v.
Brown, 11 Mich., 265.
2497. Presumption of payment can never arise from lapse
of time alone, short of the period of limitations fixed by law. Adair v.
Adair, 5 Mich., 304.
2498. But on bill to foreclose a mortgage given to secure a note, it
was held 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. Gould, Wal. Ch.,
478. See Young v. McKee, 13 Mich., 552.
2499. Purchase of lien when a payment. For a case
where a party, under an agreement to pay for lands by taking up incumbrances upon it, was held to have satisfied an incumbrance by buying it in, see Michigan Insurance Co. v. Kibbee, 6fIich., 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 intervening mortgage between the one redeemed by him and his equity of
redemption, the same rule should prevail as in case of a redemption by
a subsequent mortgagee. Johnson v. Johnson, Wal. Ch., 331.
2501. Written order as proof of. A written order directing 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 authority to pay to the person
named in the order. Beardslee v. Horton, 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 payment shall be applied. Thayer v. Denton, 4 Mich., 192.
2503. Where the application has been once made upon a joint debt,
it operates to extinguish so much of the debt, and the application cannot 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. Ibid.
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 delivered accordingly, the first moneys afterwards received by the creditor
on the debtor's general account, must be applied on the purchase under
this guaranty. Gard v. Stevens, 12 Mich., 292.
2505. What an officer may receive. A sheriff or constable 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. Heald v. Bennett,
1 Doug., 513. This rule applied to justices: of the peace in the same
case, and also in Welch v. Frost, 1 Mich.,, 30.
PHYSICIANS.
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 highways by. Section four of the charter of
the Detroit and Howell Plank Road Company (Laws 1848, p. 398), authorizing the company, when duly organized, to enter upon and take
319




~ 2513           PLANK ROAD COMPANIES.
possession of so much of the Detroit and Grand 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 comrnmissioners of highways of the several townships, as required by sections
27 of the General Plank Road Act of 1851. Detroit and Howell Plank
Road Company v. Fisher, 4 Mich., 37.
25085. The Detroit and Erin Plank Road Co., being specially autliorized by their charter to take possession of so much of the Fort Gratiot 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 commissioners 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 company 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. Attorney-General v. Detroit and Erin Plank Road
Co., 2 Mich., 138.
2509. Riglit to demand tolls. Under the provisions of section 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 Howell Plank Road Co. v. Fisher, 4
Mich., 38.
2510. The company may demand toll of any person in advance of
his actually travelling upon the road; and on his refusal`o state how
far he proposes to travel over the road, may require payment of toll to
the next gate. Ibid.
2511. 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.
2512. 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 Road Co., 12 Mich., 338.
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." Sub320




PLANK,ROAD. COMPANIES.  2520
sequently the city limits, were extended by statute so as to embrace a
portionof 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 extension of the road which was authorized by the amendatory act.
Ibid.
2514. Amendment of charter. The clause in the fiftieth section 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 inserted solely for the protection of the companies, and does not prevent
the legislature, bygeneral amendment, from removing any restriction,
or releasing or diminishing any obligation or burden imposed upon
such companies by the general act. Peopl v. Grand Blanc and Holley
Pla~nk Road Company, 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
(Laws 1859, p. 155), which permits them to adopt a grade of not exoeeding one foot in ten, instead of one foot in twenty as under the general act. Ibid.
2516. An amendment to a charter of a plank road company, authorizing it to mortgage its corporate property to raise money for- the
completion of its road, is an amendment which maybe accepted by a
majority of the stockholders. Joy v. Jackson and lMichigan Plank Road
Co., 11 Mich., 155.
2517. ll[ortgage by. Under a special statute authorizing a plank
road company to " mortgage the road and other property of the company," the franchise of taking toll is to be understood as included with
the road and its fixtures. Ibid.
2518. 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 franchise. 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 forfeited or affected by the failure to construct
21                                   821




~ 2530          PLANK ROAD COMPANIES.
the balance of the road. Peple v. Jackson and Micdigan Ptank Road
Co., 9 Mich., 285.
2521. The following question discussed but not decided-the Court
being divided in opinion: —Where a part 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,
2522. 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.
2523. Also, what certainty of pleading is required in a proceeding to
have a forfeiture declared for misuser? Ibid.
2524. Also, what standard of perfection can be required as the
standard of repairs, and when repairs must be made? Ibid.
2525. 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. MoIGraw,,  6 Mich., 441.
2526. It is not indispensable that a judgment:creditor who, after return of execution against the company unsatisfied, files his bill to compel payment by the stockholders, should make them all defendants.
bid.
2527. Nor is it necessary that all be made parties to the bill, when
the demand ibr which the jdgment was rendered was for labor done.
Ibid.
2525. 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 franchise to such person as will satisfy the execution, with the legal fees,
and take the franchise for the shortest period of time. James v. Pontiac
and Grovedand Plank Road C-o., 8 Mich., 91.
2529. A sale of the franchise for a certain period, in part payment
of the execution, is unauthorized and void. Ibid.
2530. 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.
322




tEkADISGS..                     ~. - ~ 7
PLEADINGS.
1. GENERAL PRNCiPLES.:-'t.51;'Th-e':object of pleading ianan y. Co-urt is to Spprise tle: opvite- party of the. grounds of the clatinor defensee (as:the case may be,
so that there shall be tno misapprehension-as to! what. matters — are, toboe
litigated on the trial. Hurtfo'rd'.  Homea,' 8. Mich., 460.
2'-:'s'5,:2. Surbp'lusage,'It is not necessary. for a party to allege'any
more, in pleading, than will constitute,. prima facie, -a sufficient.cause of
atfon odi defense; aill beyond: this is surplusage.  AttoreyGn al,.;4ieai~gan State Bank,:. 2 Doug., 359.
2. TIM DECLAIANOlS.
5.-8. Statute of frauds.  A declarat~ion on a guaranty within
the.purview of the statute of frauds, need not aver that the guaranty
was: i writing. Dayton v.'William-s, 2 Doug., 81...:-2884. Nor need it aver that the undertaking guaranteed, though
tlhat:'also was withitn the purview of; the statute, was made with the formalitles which the statute rgiwres. b...id..2"3i5. Covenant on -rplevin bond.  The declaration set:foith 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 -statute. Default for want of plea, andfinal.judgment. On error to reverse'thejudgment, it. was..-did,:: (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.(b)- That; it must be presumed -in this case- that the bond contained
suhh,-a covenant, and not -that the action was: founded Upon the eondition
of-the bond.
(..) That it was:not necessary that the declaration should set forth
the penal part of the bond; it being sufficient for the plaintiff to set
forth so much only of an instrument as constitutes the foundation of his
action. Prentisv.' Spaldingg, 2 Doug., 84.
2536. Suit- for goods.sold, where securities have.been.t al-en.-  Where plaintiff sold goods and received securities for'the
purchase price,o oneof which he collected.and the other offered -to return,;and'-he afterwards brought'suit to recover. the balance, it was
held not necessary that he should declare specially. Gardner V. Goranm, 1. Doug., 507.
2537. Suit on note where there is a collateral agreement. In declaring on a promissory note absolute on its face and. in
the ordinary form,. it- is not necessary to notice a cotemporaneous agrea823




~ 2544                   PLEAXDINGS.
ment in writing varying the terms of the note, contained in a separate
paper. -Such agreement is matter of defense only.  Smanley v. Bristol, 1
Mich., 153.
253,. Declaration on a lease. In declaring on an agreement 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.  Tilman v. Fuuler, i3 Mich., 118.
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 consideration for an actual renting, unless it was so stated as to amount to
a present demise. Ibid.
2540. Guaranty: Igoods sold.  The plaintiff sold and delivered 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 possedsion'of
the purchaser, ready to be delivered upon default of any payment —except 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 liq(uidate 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 applied;" and it was held, that an averment in the declaration, that plaintiff" 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. Mills v. Spencer, 3 Mich., 127.
2541.' A declaration upon such agreement, setting forth the'amount
of-the purchaser's original indebtedness for said goods, held not defective 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
sum, 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. Ibid.
2543. The defendant under this agreement, was held liable for the
whole- eficiency, 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
324




PLEADINGS.                      ~ 2551
there is an exception:insthe enacting clause, the pleader must negative the exception; but where there is no exception in the enacting
clause, but 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.  [MANING, J.]
3ifers v. Carr, 12 Mich., 63. See Attorney-General v. Oaldand County
Bank, -Wal.CUb,. 90.
2545.  Allegations conflicting with.  stattes. A.Court
is bound.to take judicial notice..of a public -statute, and.tto disregard all
allegations in conflict with it. People v. River Raisin  and Lake Erie
Railroad CO. 12 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
laaw, 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 township by the name and description of the People of. the State of Michigan. The Court must take judicial notice of the fact that.the State and
the township are distinct organizations. Townmhip of La Grange e. Ghapman, 11 Mich., 499.
&547. 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 showing, how the agency was constituted. Regents. of the University v. Detroit Young. Men's Society, 12 Mich., 138.'254S. 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 necessary, 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 it..face it
appeared to be executed by agents who had only affixed their owin seals.
Ibid.
2551. Pr'ofert. 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 full. IFid
325




~ 256O                    PLEADINGS.
2552. Statementi ofp-iromilse in' assumpsit. A declaration
in assutapsit on the- commoin counts, whiidh, after' s tatig'the seevral
causes of action, omits to  ai-llege -an: express promise, thEough bad:on
special demurrer, is' cure:by judgment.' Hoard e.:'-Litttle, 7 Mich.,
468.
255*. Partfcula'"iftrequired,.: Aplepading ii uld" dentain.
allegations of' facts, and not of evidence. Under a count  r  for a false and.
fraudulent' representation of the value of an article sold- by defendant,
plaintiff nmay prove false statements made by defendant't the time, -asto
the value of particular- pa~irts of the6 artile-, notwithstndingh- such statements are not detailed 1i etideation..'- Prd'.,fVi.O"'mne",-1IMich.,
2554. Separate counts. Each count- of a declaratibn is. -to.be
regardd as a separate.claim, and the declaration;is notdfective because
one count claims diamages below the jurisdiction of the Court.. Ibid.
-9555.   VarMae. ~ Wh-ere  a writ is alleged. to have'i;, dr -a
written' instrument t:have'been mad, on a certain day; and the writ or,instrument, when offered'd'h evidence, bears idate a different day, this
is rio' variance.' -L 7rp'v. Southworth, 5 Mich., 436..
2556. A variance between the declaration and-the proof should be
disregarded at the trial, when the instrument is otherwifSe' sufficiently'escribed in the.delatationi, so tth:at defindtantt cafnnt- be'stprpirs'ed or
misled'by the evidence'. Ibid.
2557. Where the consideration for a promise -is stated as consistitgof two parts, each of which; Is, material and pertinent, -.proof of bMut,one
-"ia variance fatal to plaintis recovery, notwiths'tanding either would
have been sufficient by itself to' sustain the promise if alleged as: the
sole consideration.  flltma'. p. FPuler, 13 Mich., 113.
2558. In an action on a warranty of a span of horses, the declara.
tionn stated the consideration: to be a yoke of oxe-n- -auid a. note for twe'nty.dollars, and on the trial it appeared the note was- for. ten dollars Only.
The variance was held to. be fatal. Harrington v. Worder, 1 Miehb.; -487.
2559. An allegation that the presldent and directors of a certain eozt
poration (naming ll1 of-'them)-made'certain' by-laws, is. supportel4 by
evidence that they were made by the president and a majority only.of
the-"directors.' -.Cakil,'.. XR -':' fa Insuanl e-, Cob 2:Do.u;. 24.
25600, Declaration agatist one who'had subscribed witht'others:for
the erection of a CollegeBbuilding at Hillsdale, for the use of the Michigan Central College  incorporated at Spring Arbor.  The declaration
averred that this college decided not'to-:.use the bulditng -'whe-n - completed, and the' subscribers - afterwards ren-ewed' thei'-t'subscrlptions,
and indebtedness' was incurred and the building-completed in -reliance
thereon. It was shown in evidence that the renewal -of the subscrip826




PLEADINGS.                      ~ 2568
tions, and the erection of the buildings, were for the benefit of a new
college to be, established at Hillsdale.  This fact 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.
Undrerwood v. Waldron, 12 Mich., 73.
2561. Variance in 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 demurrer. Gilbert v. HZanford, 13 Mich., 40. See supra, 2546.
2562. 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.K an v, Mitchell, 13 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 verdict when, from the issue as actually made, it can fairly be presumed
that the evidence necessary to establish a case was given under it. Ibid.
8. PLEAS nr 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. Belder v. Laing, 8 Mich., 500. See Findley v. People, 1 Mich., 234.
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 defendants 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. Belden v. Laing, 8 Mich., 500.
256.8. 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




~ 2577                 PLE;ADIN-GS.
nothing appearing on' the record to- the contrary, that the suit by declaration was first commenced, and held that a plea of that suit-in —abatement of the attachment suit was bad,'because the plea did not state that
it was still pending. Wa'v. Jones,- 1 Mich., 254-; Pew' v. Yoare, 12
Mich., 16.
2569. Where a plet Xa abatement averred that.-another suit "was
commenced at the same time, upon and-for the not performing the same
identical promises and u-ndertakings, without adding, in the said declaraton in thiWs re.ent uit nmentioWed, -or other equivalent words, it was held
bad on that account. rbid.
2570. Non-Joinder at plaintiffs.  Where the::;husband sues
alone for property of the wife, held in her own right or that of another,
he will be non-suited on the trial. It is not necessary to plead the nonjoinder in abatement. Brown v..Fifdd, 4 Mich., 322.
2571. 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.  Peoe  v. Dennis,.4
Mich., 609.
4, PFEMS IN.BBA.
2572. The general issue, under the Revised Statutes of 1846,
(Comnp. L., ~~ 4176, 4177) in all civil-actions, traverses every material
averment in the plaintiff's declaration which must be proved, whatever
the nature or form of the action may be. Kinne v. OweR, I Mich., 249.
See Taf v. Hoosmr, 14 Mich.
2573. 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. Lat4rop, 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 necessary, a notice that the note was given for the purchase price of intoxicating liquors, contrary to the statute, is sufficient.  [MANNING, J.]
Myers v. Carr, 12 Mich., 63.
2575. In an action of tort,- everything' -which may properly be. considiered by the jury in' mitigation of- damages, may be given in evidence
under the general issue., Delaan v. Bates, 1 Mich., -97.
-2576. In trespsss -&dboniei 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., Rosenbury v. Angel, 6 Mich., 508.
2577. In troverlagainst-a sheriff, by parties claiming property levied
3828




~PLEADINGS.                      ~ 2586
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 plaihitiffclaims,..is fraudulent. (Comstock v. tHolon,,2- Mich.,
355.
25738. Plea puis darrein continuance. After a joint plea
to the" merits by-two defendants, it was held: that one of them might
plead severally, puis dorrein co"ntinuance, 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. -WF ieok.v. Rice, 1'Doug;, 267.
O259. Statute of limitations. " A plea of the statute of limitations,- that the plaintiff's cause of action did not accrue within six years
next before the filing of the plaintiffs amended declaration, is bad. WiZcox v. Kassick, 2 Mich., 165.
-580O  AnOther suit pending for the same cause of action in
anOther State, is not a good plea in bar. Ibid.
- 2581. Two pleas; one bad. Where to a declaration in assumpsit the defendant pleaded non-assumpait, 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. Owners of Sh7ip Mil-wauke — v.'Hae,   1 Doug., 306.
25S2. Special pleas good after Judgment. 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.- Lyon, 2 Mich., 276.
25a 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.
Tompson vo. Bowers, 1 Doug., 321.
2534. A -notice that apprises the plaintiff with reasonable certainty.of the matter of defense, so that -he may hot be taken by surprise on the
trial, is sufficient under the -statute, Rosenbury -v. Angelt, 6 Mich., 508;
Mceardy v. Wadsworth, 8 Mich., 849.'.And- see Porter v. Kimball, -1
Mich., 239.
-2535. A notice'that "three several writs of attachment were issued.out of-the' Circuit Court for-the county of L., and under: the seall-: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. Rosenbury v. Angel, 6 Mich., 508.
2586. In an action on a promissory note made by two defendants,
329




~.2591.1 V A INGS.
notice of defense.w7s irterposed, that the.note Waga given for the purchase price of cows sold.. with warranty by 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
given for the consideration stated,' but the sale was made by the plaintiff to one of the defendants. Held, that the notice was sulfcient- especially as the plaintiff, in his bill of particulars, evidently designed to
over the consideration for the note, had claimed, to reeover for Cows
sold by him to the defendants. MclHardy v. W adsort/h, 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 byT the defendant, in the; several conversations i. the dehlration
mentioned, and that, if the words were uttered and p.qblishe, as charged
in the declaration, the defendant had good reason for utt.eing ad p.ublishing, and did it from good motives and for justifiable. ends,"'.- Hid,
that this notice was fAtally defective; especially in omitting any  verment that the plaintiff wful.y and.ddieberatey swore falsely;, and that
the defendant could not, upon the trial, introduce.'any evidence uder
it, T/hompson v.. Qoere, 1 D. oug. 321.
258S. What notice was insufficient under the County Court sys.te
of 1846.. Porter v,.ir..a/, 1 M-ich., $89.
5, D   _RRInu..259. Insumeleeat. description.  In replevin. a defective -description of the property, must be taken advantage of..byspecial demurrert as- it would be held: sufficient after verdict,:  avowry,-or plea:of
property in defendant. Stevns v. OCsman, 1 Mich., 92
2590. Defective allegation. ofr notice. That the averment in a declaration on: a, guaranty, of notice to the defendant: of.:onperformance by his.principal, omits to' state.'wohen' or:Ther'the notice
was given, is no ground for arresting judgment, but only of spepial demurrer. Daytn v. W..sam8;.   2 Doug., 81... REPLIC4rTIO.o..25:91. Replication to a notice..of defense wasl held -6t' necessary,
under the Circuit Court rules of 1853, where: the nattters set out id'n the
notice were admissible in evidence under the general -issue. Oraig- V.
Grant, 6: Mich., 447.
38Q




POSSSSION. -O  LANDS.                  ~ 2599
POLICE COURT OF- DETROIT.
2$ pl.rom   Whether an appeal lies from a eonvi.cioa,
in ethe   o lc: Court, f DDetroit, to the Circuit. Court for the, E6nt of
Wayne, gurer —the Court being equally divided on the question. Po.. Ppie,Justee, 7 Mich, 456.,93.  Jurlsdltetl4on.i  The Police Court,of Detroit has no jidiction of a criminal case where the maximum punishment alowed by
la.w exceeds a fline of one hundred dollars, or three months impris nwtnt,.Qor both sunh fne and imprinament.    of terr, 7 Mich, i'67.
POSSESSION  OF LADS.
"694. When It tis notice of title or- claim.. W-here a
party purchasesland in the possession of a third person, with a know]edge of that fact, he takes it subject to all- equities existing!'between his
vendor and the person in possession. Rood v. Chapin, Wal. Oh C., 79:;.Godf'oy',v. Dlsbrow, -Wal, Ch, 260;  isbroaw v-. Jones, ar. OCh., 48';,-.Zv. Wilcox, 11 Mieh.i 8588; Norris r. Showerman, 2 Dotug., 16.
-25:,It is the duty of the purchaser before buying to inquire of the
person in: possession what claim he. makes to: the premises. Mc-.Kee v.
Wilco, 11 Mich., 858.
2696. But possession alone i; not -such.ac-tia nootice, as, under  25-,
p. 260 if- Revised Statutes of 1838, would protect the title of one claiming and occupying under an unrecorded deed, against one who subsequently took a mortgage from the grantor withoutl.bing aware of. such
possession. Hubbard v, Smith; 2,.ich., I207.;-2'97. Not. affectedd   byt injunction...Where an injunction
had been granted, enjoining defendant from interfering with or incumbering 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 theinjunction 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..'emingway v.
Preston, Wal. Ch., 528. And see supra, 1146, 1147,B2..9S.8.; Sunmmary..proee edings - to- reover  who   to
bring. Under the Revised, Statutes of 18388, a: uit against a lesse:e
to reeover possession of the demised piremses,; on account of: the nonpayment of rent, &c., was held properly brought by. the lessor in his
own name, although he had previously assigned the-. rents to accrue
under the:lease, to.athird person. Ckhamberlin.. Broown, 2 Doug., 120.
2599. The summary remedy given by Laws of 1840, p. 85, ~ 5, where
881'




~ 2609             POSSESSION, OF LANDS.
premises had been sold onl mortgage foreclosure -or on execution; applied only where there was pnivity between the parties; and not where
the grantee of a purchaser at an execution sale sought to recover possession from a person holding adversely to the judgment debtor. Royce
v. Bradburn, 2 Doug., 377.
2600.-previouss 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 wlhich was served twenty days before proceedings were instituted, was sufficient. CmSmberlin v. Braon, 2 Doug.,
120. See further as to notice, Huyser'. Chase, 13 Mich., 98; Woodroaw
v. Michael, 13 Mich., 187.
2601.-the complaint should allege all the facts necessary to
give the Court. jurisdiction. Royce v. Bradbumn, 2 Doug., 377; -Caswell
v. Ward, 2 Doug., 374; Davis v. Ingersoll, 2 Doug., 372; Bush v. Dunham, 4 Mich., 339; Bryan v. Smith, tO Mich., 229.
2602. 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 accompaniedrwith
~ vidence, or a breach of the peace, was held insufficient. Davis a. Ingersoll,
2 Doug., 372.
2603. A complaint under the Statutes of 1846, which did not show
that at the time the complaint was-8 made the complainant was entitled to
the premises, was held insufficient. BusA. v. Dunham, 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., 229,.'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.  Cascwell v.
Ward, 2 Doug., 374.
2607.-process under the Statutes of 1838 might have been served
by a constable. Peoples. Gay, 2 Doug.,:367.
-2608;-continuances -might: have been granted under. the Statutes of 1838, though the. power to continue was not expressly conferred;
it being incident to the-jurisdiction.-to hear -and determine. -. GCascel 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 ad332




POSSESSION OF 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; Held, that the justices had no power to direct the second
jury to' be -summoned, but that they: should have required the jurors
who appeared in obedience to the first venire to appear on the adjourned 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.'Latiner v. Woodward, 2 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 fbr error that the verdict was against law.  Chamberlin v.
Brown, 2 D oug.,:120.
2611.-pleading the general issue to the complaint was held a
waiver of irregularities in the summons and venire. Falkner v: Beers,
2 Doug., 117.
2612.-the evidence must be confined to proof of the facts
alleged -in the complaint. CasweUl v. Ward, 2 Doug., 374.
2613. Where the proceeding is by the purchaser at a statutory foreclosure of a mortgage, the complainant must prove the regularity of all
the proceedings on the foreclosure. Ibid.
2614. Evidence which shows merely an untawffui: entry and detention, without showing that they were accompanied with violence, or a
breach of the peace, will not support a complaint for forcible entry and
detainer. Davis v. Ingersoll, 2 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
v. Woodwoard, 2 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 peaceable 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 jurisdiction, on reversing the judgment, to render
333




~' 2624                   POWE1AS.
judgment. against the: tomplainanit for-*costs, BO,/a:;u.  ith,.10 Mich.,
2':9.
20618. A writ of error is the proper process:to bring the judgment of the Circuit Court before the Supreme Court for review. Parke. "opland, 4- Mich, 528.
POWERS.
2619. To twvo or more. Where several persons -are empowered 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 Young Men'o Society'&s Lessee, 1 Doug., 119.
2620. They will all be presumed to have been present, and to have
deliberated upon the act, unless the contrary expresly appears. -Ibid.
"2621. Land Board in Detroit. The powers conferred upon
the Governor and Judges of Michigan Territory to grant donation lots
in Detroit,: are iiot to be construed' with thle technical  trictness applicable 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 libetal intendments in their support. These powers -cannot'be held exhausted
until they had fulfilled the purposes for which they were conferred,:by
causing the title to a lot to be vested in each person entitled.,Read v..Kerskey, 14 Mich.:2622. Where the:Board conveyed a lot in Detroit to A*, and afterwards 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;tak-ea...
possession; itwas held that the Board had not -exhaistd their power
to grant a donation lot to A. by giving the first deed, and- that -the.-second deed to him was valid. Ibid.
2623. Unauthorized  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




PRAC'CICE IN THE CIRCUIT COURTS.              ~ 2632
PRACTICE IN THE CIRCUIT COURTS.
2625. Service of process can only be made in the county in
which the Court is held. Turrill 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.:179; and process generally against joint debtors; Laws of 1861, p. 485.]
2626. Notice of rule to plead. The omission to serve notice 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.
2627. Return of service of declaration. Where the suit
is commenced by declaration, the certificate of service may be indorsed
on-the original declaration on file, or on a copy.  Lared v. WiZcox, 4
Mich., 333.
~2628. Where a notice was attached to a declaration, that a note, a
copy of which was given, would be read in evidence under the declaration, and the sheriff returned that he had served on the defendant a
copy of the declaration and notice, it was held that the return necessarily implied service of a copy of the note, since that constituted an essential part of the notice. Bliss v. Paine, 11 Mich., 92.
2629. Where the under sheriff serves the writ, he may make the return in his own name. Calendar v. Olcott, 1 Mich., 344.
2630. Prochien ami. The prochien ami for an infant plaintiff
must be appointed by the Court. If the suit is commenced ty declaration without such appointment, it will be dismissed on motion. Haines
v. Oatman, 2 Doug., 430. The proper practice on appointing prochien
ami indicated in this case. See statutory provisions, Comp. L., Ch.
143; Laws of 1858, p. 9.
2631. Rule to plead under Statutes of 183S. Rule 11 of
1843, requiring defendants, in suits commenced by declaration, to plead
thereto within thirty days after service of a copy of the declaration, was
a rule the Court had power to make. Norvell v. McHenry, 1 Mich., 227.
2632. Amendment of declaration. Where a plaintiff suffers 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 declaration 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. People v. Judges of Washtenaw Circuit, 1 Doug., 434.
335




~ 2641      PRACTICE INI THE CIRCUIT:COURTS.
2633. 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
aGircuit Court 13'8 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 speciallyset out in the declaration. Davis
v. Freeman, 10 Mich., 188.
2635. By a written contract defendant promised plaintiff to pay
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 contract, plaintiff, by his bill of particulars, Confined his claim to the contract. This did not preclude him from showing, by parol evidence, the
performance of the subsequent services.  Tefft v. Mc.eoah, 9 Mich.,
201.
2636. Aflidavit 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.
2637. Supplying lost fliles. Where a recognizance of special
bail was lost from the files of the Court, and plaintiff'moved to substitute 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 v. Henry, 10. Mich., 19.
2635. Adjournments of the Court from day to day during the
same term, are not continuances which require to be stated in the record. Owners ofShip Miltaukee v. iake, 1 Doug., 306.
2639. 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., 263.
2640. 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. Wins7loio v. Herrick, 9 Mich., 380. See supra, 771.
2641. Under ~ 10 of the schedule to the constitution, vesting in
the Circuit Courts jurisdiction of suits commenced in the County Courts,
Such Circuit Courts had power, in suits brought against several defen386




PRACTICE IN T',CIRCIT-O TS.       ~.2651,-*                      __        _ __         _........................_.:ants on joint and several demands, to allow a discontinuance as to one
*or more ofthe defendants.. Chandler v. Lcarence, 8 Mich,;261.
2642. Demurrer. Where a demurrer is overrued and -the pary
pleads over, the right of objection -is thereby waived, and he cannot.afterwards object, on error, that it was erroneously overruled, W.le v.
Lyon, 2 Mich., -276. (Though this.case has not beenn.  inctin:.o.r,
ruled on this point, it is believed not to be now followed)
2643. Judgment on demurter will be given against the party committing the first error in substance, and not in matter of form merely.
Ibid.  See People'v. River /Raisin  and Lake Are  R. R1.C.ompany, 12
Mich., 389.;2644. Trial: the Jury,. 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, S. of
1838, p. 461-2 —might betamended after error brought. Owner. of Asp
Milwaukee v. Hale, 1 Doug., 806. See.also, Comp. L., p. 1201-2.
2645. The record in error showed that talesmen were called and
sworn on a jury, but did not show:that they had -the requisite..qullufication of jurors. It was held —no challenge appearing to have been
-taken on that ground-that they must be presumed to have been.properly qualified. I-bid.
2646. 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.  bid.
—:2647. Where it does not appear from the record that the jury retired to consult, it will be presumed that they-found their verdict.without
leaving their seats. Ibid.
2648. Where one of the jurors had sat on a former trial of the:samme
-cause, and this fact was known to the counsel of one of the parties before 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 effect, Sleight v. Henning, 12 Mich., 871.
2649. Challenges.  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: cagse.  Crippen v. People, 8 Mich., 117.
2650. A challenge to the array must be i- writing, Pepl.:. Doe,
1 Mich., 451.
S2651. Where a juror is challenged for favor, the: usual modeof:tryifig his impartiality is by triers appointed fiorthe purpose, on the demand of the challenging party;. Iftftheehallknging. party, when asked
22                                     -3837




~ 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 be tried by the Court, by administering an
oath to the juror, and propounding questions to him. Ibid.
2652. 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. Crippen 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. Lacey, 2 Doug., 230. See also, Oliver v.
Eaton, 7 Mich., 108; Bagg v. Jerome, 7 Mich., 145; 14ye v. Van Husan,
6 Mich., 329; 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 fide assignment is not for the Court, but for the
jury; and the Court is not warranted in excluding the,admissions of
the nominal plaintiff, 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 v.
Hudson, 5 Mich., 123.
2657. Whether in a particular case a merchant in New York, shipping 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.
2658. Where there is a conflict of evidence, and the jury, by weighing.338




PRACTICE IN: THE CG.IROUIT COURTS.              ~ 266
it, are to find facts, it is the duty 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,'pon which direct instruction ought to be given.; Wisner v. Davenport, 5 Mich., 501.
2659. 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 legalaond reasonable or
otherwise.  Bourke v. James, 4 Mich; 336.
2660. The city of Saginaw was incorporated With territory which
constituted about one-fourth of school district No. one of the towmuship
of Saginaw. The officers of the district being within the city, thereafter
assumed to be officers of school district No. one of the city (of Saginaw,
and brought suit in that name to recover moneys levied.a;nd Ycollected
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 erroneous. Township of Saginaw v. School District No. One of t7e City of kQaginaw, 9 Mich., 541.
2661. The question of the sufficiency of an indictment cannot be referred to the jury as one offact. People v. Cook, 10 Mich., 164.
2662. Whether a contracting party has, by agreement with an aSsignee of a contract, estopped himself from 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. Litchfleld v. Garratt, 10 Mich., 426.
2663. Where plaintiffs 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 contract, 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 the 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. Peoplev. Scott, 6 Mich., 287. -See Angell v. Bosenbury, 12 Mich., 241.
2665, 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. Reynolds, 2 Mich., 422.
2666. The Court cannot be required to charge upon abstract propo339




~ ~2674   PRAC.rT.OE T~~::ltE.CIRUIT OI URTS..sitio-s:of law not having a;  bearing.'tp on the:evidence submitted. ~Doye
v. teven,: 4 Mich-., 87.:See supra, 1546 to 1548, 1552 to 1555.
2g667. Non-suit. Th  bCourt;cannot compel.a plaintiff to become
mon-suit. He has always a Tiight, if he chooses, to go to the jury with his
case. Cahill o. Ktariamso MutuaZ Iwnurarnc::e -o, 2 Doug,, 124.:2668. Special verdft.' The Court:canadd nothing to a special
finding, or infer any iiets which -the jury have not inferred and set forth.
The Court can only dr aw the legal conclusions -from the:-: fcts -found.
Peops -v. Weall, 8 Mich, 104.i
2669. 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 partiestis entitled to recover.: And any such determilnatio.is to be disregarded bgythe Court, and such judgment giveh as
the frcts'found will warrant. Ertoi nt. (Cark, 13 Mich.,- 10..
2670.- The jury will find' aspecial verdict at their option..; the Court
cannot compel them todo iso,:or to give reasons;for a general finding.
-Pek;:. nyder, 18 Mich.: 21.:2671. What verdict. etovers the..ssues. 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 issue,.the judgment will not be reversed -if; the
-verdict:;oathe g Ie  l   e negatives-the special plea of defendant on
r:which the other issue was Joined, and the. jury- could note haye -found
-for the plaintiff had defendant; established the truth of his special.plea.;Brooks v. Detrymple, 1:.Mich, t145.
-2672. The issue was submitted -to a jury' whether an alleged will'wasthe last will and'estament -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 jury 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 disposing of -his property byy will.:eld'that
it covered the whole issue, and necessarily negatived all undue -influence.
rWhite. Baily,'10 Mich.. 155. See supra, 181.
-2-6r73. Certainty -in  erdict.' A verdict in.ejectment that defendant is guilty of unlawfully withholding"" the west three-fourths of'the north-west ~fractional quarter" of a certain section,s " excepting
twenty-five acres on the west half of said section, and three: acres cut off
tiy the -road from the south-west corner ofsaid-section," is  so uncertain
in::the description it:gives: that no judgment can:be rendered -upon it.
Afunger v. Grilnnl,9'Mich., 544.
2674. Verdict for the plaintiff in ejectment for fbur certain:parcels
-of land, describing them, "except so -much of said last -two described.340




PIR  OXICR  TWR0MQUIT: OURT0-8                  268
portiona or parcels of land  s is ontie in the pl!t of the village k,
Royal. Oak, recorded in the record of deeds for said county of Q..i
laid," was -held sufficiently certain  lockoa... Drak   Michk, 4.
26.75. 3Ejectment: for dower. Verdigct that. " The jury find fQr;the
plaintiff, and that the plaintiff is e.title1 to -the possession, during her
lifetime, of the. 1undivide.d:,thiril part of [land descrihedi] as the. edone
able dower of said plaintiffins id premises.  Held-sufficient.i.'267?,.,:Shaping-verdliet.-:Juries: rarelygive very formal verdits;
and inquiries of the jurors inC ourt,' and amendments for the.purpo.s
of puttingin. due form what the-jury mean by their finding, are n-obJeCtionablbe. -Se/gt. v.:.Ez..,. Mich..37L
-2677. Amending verdict. A jury broughthin a sealedfverdit,
"We find for the plaintiffthe full amount claimed biy 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 ther4to xeturn a verdict for that amuwunt
in due form..[MARTIN,:  U.C. J..]  Q OUlt v, IaTon,: 12. Mich.,,452,
2678. Finding by Judge, A Circuit Judgemay amend his afin.ding, and his action in so doing.is not subject to.- review. Swetz.er..  MeaM.,
a Mich., 33.
2679. No written request for a finding by the Circuit Judge is necessary, except where a party desires a detailed finding-on the facts in the
case, as well'as on the law points. People v..4tttejohn, 11 Mich., 6~0,
2680. The right to except for. supposed errors of decision i4 Ut
affected by the absence of a written finding. libd,
2681. Ontrial without a jury, rulings of law which might. affect the
finding of facts-as upon the admission or rejection of evidence-cannot: 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 exgeptions are. necessary. Wrudo-. Anderson, 10 Micht.,357; Woods. a.Rue, 9 Mich. 158.
-2612., The finding -of facts must set forth the facts fozknd, and not
merely the evidence tending to prove them. Ibi;. Thona s. Sprague,
12-Mich., 120.
2683. Where, as a conclusion of law from a finding of facts, 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 v. La Rue, 9 Mich., 158. -
268;4. Testimony by deposition. Where a deposition was
taken by-stipulation before a justice, who had no' powerto take it exrept
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 offcer- author341




~ 2694      PRACTICE IN THE; CIRCUIT -OCURTS.
ized to take depositions for the Circuit Courts.  K-night t. Emmon8, 4
Mich., 554.
S35,. I t is no- ojeetion to the reading of a deposition on the trial
that notice of its. fig was not given. If the party takingthe deposition
gives notice under the rule, (Rule 50 of 1853-Rule 51 of 1858), objections 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. Ibid.
2686. The deposition of a witness who -does not understand-'the
English language, may be taken: under the:'act of 1848-Comp. L., ~
4270, et seq.-though an interpreter. COampau v. Dewey, 9' Mich., 8381.
2687. -And- it may be  taken down in, narrative form, instead of
through interrogatories. 1 Ibid.
2688. The notice of taking depositions under- said act, when: not
served by an officer, must be verified by the affidavit of the party himself, or, at least, if a suit be pending, by' his attorney of record. Ibid.
2689. The answer ofa' 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., 92.
2690. Where the testimony of a foreign witness was taken by commission, 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.  Facey v. O is, 11: Mich., 2138
2691. By the Statutes of 1838, an objection to the competency of a
witness whose deposition was Itaken in the cause,' was- required: tobe
made at the taking ofthe deposition, or it was deemed waived.' -Hasey
e: WAhte Pigeon Beet SugaTr Company, 1 Doug., 193.
26092. Where the delposition was taken' before a justice: under the
Statutes of 1838, it was held not necessary to produce proof to the justice that notice oftaking 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.  Pieckard v. Polhemtus, 3 Mich., 185.
2693. Interrogatories will be presumed to have been settled min 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 competency of the evidence for the first time on the trial.-(Comp. L, ~~ 4257,
4248). Angeal v. RosenbUry, 12 Mich., 241.
2694; Objection: to variance between evidence andthe pleading under which it'is offered,:must be' held: to be waived where,the- evidence is received and submitted' to the consideration of the jury without
the objection -being taken. MeHardy v. Wadsworth, 8 Mich., 349.
342




PRACTICE IN THE CIRCUIT COURTS.               ~ 2703
2695. Admoission of instrument sued on. See supra, 426.
A recognizance of special bail is not such a " written instrument" 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. Elliott v. Green, 10 Mich., 118.
2696. The genuineness of a recognizance of special bail may be disproved 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, depositions which have been taken by 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. Beard
v., Spalding, 12 Mich., 309.
269S. 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 exceptions have been taken, and is to be exercised upon hearing such exceptions. 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 is made to take judgment upon it as of
course. Amboy, Lansing and Traverse Bay R. B. Co. v. Byerly, 13
Mich., 439.
2700. The questionwhether 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 clerk. Under the Statutes of 1838 —p. 450, ~ 4-the clerk might assess the plaintiff's damages, on default to a declaration on a covenant to pay the costs and
damages which should be awarded in a certain cause, alleging a recovery 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 declaration a copy thereof. O'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.CtCEIRA   IC   ~THE   IRCMt1'iT   O it"T.
r _,.......
1. That tfhe notibce:6f as~es6inbnt of' damages did ndot stae the plNtce
*were it ould bei made.
2t. -'That the' af"sessment Wa not made by thie 6rk lt'i' i offiiee;,'biut in
thj Couiir  o  Courteom-C itB   n session —i the' atsence -of defendan'nti
attorney.
3. That the case was- not a poper one fbr asjessment by the:cerk-.te deelaratioi containing countS for goods sold and delivered; a-s well
as the common mone' cobints.        " (A! copy of the: note upnll: which itt
assessment was made- was sel'ed Withh "the declaration).
4..inal jutdgment *aw  entered on the same day on fiich the  clerk's
report was filed.S. The Circuit C"out ove"-led, with costs, a moti'on to set aside the
jiudgment for t-hese reas'ni;.
It seems that none of the reasons assigned is sufficient for revtersing
the judgment.'  "i Beesoi v. Wil t-er, [1 Mich., 19"
70 4. The asessimeit of dam'ages, under -the Statutes -of 18,8; was
considered as mrade bjy the Cort, and should appear to have been somade in th'e j'ud gmeit record, although- the journal entry, offt  which
such record was made up, showed that the.dimages were aseassed by'
the clerk. Prentis8 v. Spatding, 2 Doug., 84.
""'270 5. -:Wh'ere'it Wa"s  cdi'ted in the judgtment entry uAideortheOprdeent
statutes, in a case not pfoper for a reference to the cekrk, that judgment
was rendered up'oii the. clerk's assessment of damages, but the- pri0o
oideir of reference to asses w...tas.to the Court, as it should hive beeni, it
was held that the Court: could not make any presumption, against the
recital in the judgment, blased   pon i  dsuch prior -otder' -th.at thd Co/trt
actu'aiijr assessed'the daiages  but: the judgment imports absolute
verity. O'Flynn v. Homes,:8 Mich.-, 95.
Q0'6. A' judgmefit'Was taken against P. and F. on their joint cove -
nant that P. should pay Tii costs and damages that should be awarded
against him in a certait cause."' The" d:ntry. did not shoW: that'it' Was
shown to the Court, nor did the record shoW' ift to -be- ert1fied- bv thr
clerk, which of the defendants'as principai, and whtich surety or bailL
(R. S. 1838, p. 451, ~ 9).' Held no ground for reversing the judgment.
Prentss v. Spalding, 2 Doug., 84.
2707. Assessment -by- th b  Court.  It is  ompetent -foi the
Cou"t to assess damaged after interlocutory judgment,.without caliug a
jury, it none is demanded. O'Fltin 5. foti"es, 8:Mich., 95.
27"08. Assessm'elt'by'jury.:Where the'imaker and indorset
ofcommercial paper are sied" jobitly under the statute, and: on  is de
fauited, and-issue joined a to'the'other, it it-is competent'for plaintiff to
have damages assessed-againsttle -  defuted a party; b'the jry' s" 6fi' to




PAO TiOEm TTH.Et, C Mc:IT COURTS.            ~ al.... ~.............,.,......:..........,...............:,:,:. —,~..........~_,~:.:/
try the issue -as to the other; and on their verdict and assessment; to
proceed to a- joint judgment against both. Storey v. Bird, 8 Mich., 8I6,.
2709' A, motion for judgment as in case of nonsuit, is a special
lilotion, and must be founded upon affidavit, showing the facts necessary
to entitle the party to it. Storegy. Child, 2 Mich., 107.
2710. If any part of the ground of a motion, consists of facts not apparent on theface of the proceedings, an affidavit or other competent;
evidence of its existence must be presented. Ibid.
2711. A motion to strike ain 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. People v. Jdge -of Washtenaw
ctircuit Court, 1 Doug., 434., And see Milerd t,. Reevs, 1 Mich., 107.
2712. Laches. A motion to set aside a judgment for irregularity,
made- two years after it was rendered, the delay being unexplained, is'
too' late. Peope v. Judge  of Calhn Circuit, 1 Doug., 417.
— 712a. 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. Pop.   Jvudge of Jaoksogt Circuit Court, 1
Doug., 802, But as to the lapse of a term affecting the power of the
Court, see Jagger. vi  on, 5 Mich., 81; Emory. Whitel, 6 Mich., 474.
2- -1-a3. 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 defendant after service of the attachment, but who is a stranger to the
record.  -Peopl v., Judg  of Calkhoun Circuit Court, 1 Doug., 417.
- 4. t4, Judgtnent 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 conditions, as the circumstances of the case may require, and its action:cannot be reviewed on error. Teft v. McNoah, 9 Mich., 201.
715l. Judgnment by confession. It is no objection to a judgment eihtered up by confession, that the warrant of attorney is. upon
the same piece of paper as the note it authorizes judgment to he taken
upon. The warrant of attorney and note are still to be regarded as
separate instruments, (Comp. L., ~ 4441) notwithstanding they are, thus
connected. T'wombly v. Parsons, 10 Mich., 272.
27T16  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.. Ibid..2'717. BUt it woulid not be a valid objection to a judgment. taken by
confession, that they Were both executed at the same.time.  Ibid.
271t, Jidgment in covenant on a replevin bond, may be for
845




~ 2728      PRACTIOC  IN. THE CIRCUIT COURTS.
damages, instead of the penalty of the  bond. Prentiss v., Spalding, 2
Doug., 84,.
2719. -Setting aside Judgment. 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 Rensselaer v. Whiting, 12 Mich., 449.
272"0. Notice of judgment. The party against whom a: decision 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 ten 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. Richardson v. -Yawkcey, 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
bill itself, or in the record, to show affirmatively that time was allowed
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 jury 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., 320.
*2725. Settlement of exceptions. Where time has been allowed 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. Littlejohn,:11 Mich., 60.
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 allowed.
Ibid.
2727. Amendments. The omission of the clerk to enter defendant's appearance in a cause, is:a mere- matter of form, which may; be
amended by an order nune'pro tune.: Norvel v. MeHenry, 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 T'HE  IRCUIT COURTS.-            ~ 2734
-...............
application founded upon:affidavit, grant an.amendment of -the return.
People v. JJudges of Calhown Circuit, 1 Doug., 417. See Carnder- v. Okott;
l Mich., 344 
2729.: After a trial without a jury, and judgment' for plaintiff in the
ordinary form, defendant moved for a new trial;: and the Court set aside
the: order for judgment, and immediately entered  judgment again for
the same amount, embodying therein awfinding of -the facts and law by
the Judge:- Defendant brought error, contendingethat 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 judgmeiat, and was not erroneous. But the amendment was unnecessary, as the statute does not require. the Judge's finding to be embraced in: the judgment. Lorman v. Benson, 9:ich., 237.
And see AMENDMENT..
2. 730. 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. Davis v. Freeman, 10 Mich., 188. And see CosTs.: 2731. Revivor. The suggestion of the death of the plaintiff, cannot 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. Larned v. Wilcox, 4 Mich., 333.
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. BHill v. La F'ayette Insurance 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 proceedings in taking judgment on default and an assessment of damages
by the clerk, cannot be reviewed. on case made. Beeson v. Hollister, 11
Mich., 193.
2734. Election of case or -exceptions. A party having
taken exceptions onaa trial-in the Circuit. Court, has his election to remove the case to the Supreme Court for review upon-bill ofexceptions 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
847




, "..... --               I_,~  -  -..! -..
not. entitled thereafter to make and settle- a case.;. RihdeoAn v., EaO/bey,
9.Mich., 189.
2735. Case must be. settled. Where one of the parties caused
case to beffiled 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 jit.was sointended'; and the Circuit:Judge. who tried the
suit and signed the doeument;certified.to the Supreme Court that, in so
signing it,, he did not suppose- he was. settling a;case under the statute,.
-an  that thed.' bre:s igd dbiot.set f'rth        the whole facts as. - they iexiated  held, that the papers should beremitted t tthe Circuit Court' for
such action as that Court should deem "proper under the6:circumstances.
~a..rand v.; Bentye:',: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 -Supeme Court.
Gard e.. Stevens, 12 Mich., 9.
2t737. Presumption. or proper settlement. - Where the
ase. is duly signed by the Judge, and- purports to have'been settled- before 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..aee e., Ielrand, 9 Mich., M54.
2~87.,  Certifying  case- to  Supreme Court.. When the
case is settled, and filed.ith the clerk of the Circuit-Court,'either party.
desiring: action upon it, may',- cause:. it to be certifiedd to the SUpreme
Court. Robertson v. Little, 10 Mich., 871.
2739.aBut-if the party who has caused the case to be made, neglects
for more than two years. to cause it to be certified -to the Supreme
Court, that Court, byanalogy to the statute limriting the time for'bringing writs. of error to two years, will dismiss the case-at.least unless the
delay, is sufficiently' accounted, for, Van BMaro.m e. T. Xtna' Instue
rance Co., 6 Mich.,-299. But the case cannot be dismissed until actually sent up.: Robertson. -ttle, 10 Mich., 871.
2740. Presumptions from  the case. A case' of- summary
proceedings before a circuit court commissioner, to obtain possession of
lands, was appealed to and tried in the Circuit Court, and -after judgment;for the'complainant, a case was made presenting'-eertain juriAi dic —
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 uFp:byithe, appeht —uitiesss.. ch a
special affidavit was made as was. necessary.: fia speisl.ai;l from a
justic'es Court. Itwas. ield that, if such.pecIal affidavit. wS'eessary,
the Court must infer that one was'mai -the    jurisiictional.questions
having been raised and passed upon in the Circuit Court withoUt: objection to the affidavit. Saee v. Ireland, 9 Micl, 154.
848




PRA'CTICEBJIN   THE OIRCUIT C-OURS.            ~ 2751
9-741. Evidence to be set forth.  If the'tcase 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 containall the evidence unless'the contrary
*appears. Gard v. Stevens, 12 Mich., 292.
921742. If the —case shows on its,,fce that all the:evidence is not,embraced,,the Court above -will refuse -to hear it, and -remand it:for correction. Lee v. Lake, 13 Mich., 220.'743. What to be reviewed on case made. Only those
questions are before the:Supreme'Court which appear to -have been
passed upon by the Court below. -an. Eleek v. Eggleston, 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 -reviewmupon the facts, the- Supreme
(Court cannot render such judgment as the.Court'below should have
given,- but can only order a newF trial. Brown v.'ady, 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 sufficient of an unexceptionable chlar-acter to sustain it.  Rose V, _Lewm08,: 10 Mich., -483. 
46.- But the Court must reversei-f 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
V. -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- onlypthe rulings and decision of the Circuit Court. Peck v.
S:2nyder, 183 Mich, 21.
2748. What questions: of law may be reviewed. Under;Comp. L., ~ 3421,.other questions of law besides thosearising upon::the
evidence, may be reviewed on case made.. SaUee v. Ireland, 9 Mich.,
154.
-2749. New  trial. Where a case is made for review on the'facts,
the Supreme Court cannot send the case back for a new trial. Barman..- Carhartt, 10 Mich., 838.,2750. Cases agreed upon. A case agreed upon by the;parties,:and submitted to the Circuit Court for its decision, under ~ 3421 of Com7piled- Laws, must be signed by the' parties or their attorneys.' Farrand:. 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-'849




~ 2759      PRAC TICE  IN: T:.:iE SUPRBE:ME. COURT.
ing of facts by a..Court,. or.the- special verdict of a jury, inw,hich:every
fact..necesstry to- a recQvery must be expressly found,.'Goodrich v. Detroit, 12 Mich., 2.79.
2.752. Where, therefore, 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.,p.art 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 righ t, upon such a case, to find the fact of- negligence from the facts agreed upon'and set forth. Ibid.
PRACTICE IN THE SUPREME COURT.
2753.: IrregularJudgment. 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. - Jagger v.
Cbon, 5 Mich., 31.
2754. Voluntary dismissal. A plaintiff in error will be allowed to dismiss his writ of error on motion, on payment of costs. Birch.
Browon 5 Mich., 831..
2755. Laches in motions. Motion to dismiss must be made at
the earliest opportunity. Warner v. Whittaker, 5 Mich., 241; Steoward 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. O'Flynn v. Eagle, 7 Mich., 306.
2757. The Court will 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. Warrent 7 Mich.,'309.
21758. 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 Courts refused to interfere 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 will 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.
DenC




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 jurisdiction 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. Mitchell, 9 Mich., 261.
2762. Waiver of irregularities. A notice of hearing given
by an appellee in chancery is a waiver of irregularities in taking the appeal. Durfee v. McClurg, 5 Mich;, 532.
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. Bissedl, 1
Doug., 273.
2764. Laches in procuring 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.. Lathrop v. Hicks, 2 Doug., 223.
2765. He will not be relieved merely upon the affidavit of his attorney, 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 sufficient-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 the neglect occurred in consequence of the clerk's failure to perform
it. Ibid. See also, Crame v. ~Ha/, 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 comnplainedl. 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 following its dismissal for want of prosecution, the partymaking the motion
351.




~ 2781     PRAICT-IE:IN  i:E  IPWRUEM:COU~jRT,.
should show himself in position to proceed at once to the hearing:if the
motion should be granted. Bingham v. Parsnw,.9 2Mich., 144.
*2770. Notee ofr spe'cia:motions is:in -all.ases necessary
where the opposite party -has, appeared in -the cause. Soribner.. Doaeman, 5 Mich., -288,.
2771. Counter alildavits may be read in opposition to a motion,
without having been served. Lathrop v. Hicks, 2 Doug., 223.
2772. A motion not, called up on the day for which it, was
anoticed, 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. /palding, 11 Mich., 455.
2773. Service on agent. No agent for the. service of-papers can
be recognized under the rules, unless residing-at Detroit or Lansing.
Maynard.. Pennimya, 7 Mich., 8833.
2774. When notices are served upon an agent, the distance of the:attorney's residence from.the place of holding the Court will determine
the time for which:notice must be given, and not the distance of the
agent's residence from the Court. Ibid.
2775. Nl[otion to amend. The entry of a special motion for
-leave to:amend, must;show in what particular an amendment is de'ired.
And a copy of the proposed amendment, with notice of the motion,
should be served on the opposite party. Parsons v. Cojpland, 5 Mich.,
143.
2776. 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; Scribner v. Gay, 5 Mich., 511; 1vamns V.
Norris, 6 Mich., 69.
2777. But it may in a proper case compel their correction by the
Court below, by mandamus. S.&ribner v. Gay, 5 Mich., 511; Evans v..Yor'is, 6 Mich., 69.
2s778, 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 applying for the correction. Ibid.
2780. And where the Judge who signed a bill of exceptions has
since, gone out of office, the bill cannot be remanded for correct. ion.
Ibid.
-2711. Where anamendment has been made in the Court below,:since the cause waf:sremoed 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.              ~ 2790
based upon such amendment, on an affidavit that such an amendment
has been made. O'FTlynn v. Eagle, 7 Mich., 306.
27Th2. Where, six months after errors had been assigned in the Supreme 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. Eage, 8 Mich, 186.
2783. The proper practice wihen 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.
2784. 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. Niagara Fire Insurance GCo. v De Graff, 12
Mich., 10.
2715. 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 objection, notwithstanding the bill 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 jby consent of
parties. If an addition is desired, it should be done by stipulation, or
other separate paper, without changing the original.. -Farrand v. Collins 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. Fiarrand v. Bentley, 6 Mich., 281.
2788. Assignment of errors. Where a cause came to the Circuit Court by certiorari, errors cannot be newly assigned in the Supreme Court. Lee v. Hardgrave, 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. Telder v.
Wetherell, 6 Mich., 46.
2790. Uncertainty and informality in the assignment of errors are
23                                  351




~ 2800.    PRACTICE IN THE SUPREME COURT.
no ground for quashing the assignment, or for dismissing the writ.
Ibid.
2791. Under the rule (12) which requires all assignments of error to
be special, the general assignment, that judgment should have been
given for the plaintiff in error, cannot be noticed by the Court. Webster
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 sufficiently excused. Ibid.
2793. Where an objection purely technical) was made to an assignment of errors at the hearing, 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 judgment 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 holding that the justice's judgment was erroneous in the several causes of
error assigned in the affidavit for certiorari, " is a sufficient special assignment. 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 instructions, or any or either of them, asked for by the plaintiffs," is sufficiently
special, and the words " several instructions " must be rendered distributively, and as applying to each. NYies v. Rhodes, 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 of the writ 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. Johnson v. Provincial Insurance Co., 12 Mich., 216.
2797. Assignments of error are not necessary on common law certiorari. Stokes v. Jacobs, 10 Mich., 290.
2798. Notice of hearing. What is a sufficient notice of hearing. See Franklin v. 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,
~6 Mich., 298.
25800. An affidavit of the service of regular notice of hearing, and of
354




PRACTICE IN 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 the case. Counsel must - exercise his own discretion in omitting to print the formal, and what he may deem the unimportant parts of the record in chancery appeals; and the Court will
not interfere with the exercise of this discretion, unless it clearly. appears to have been abused. Wilson v. Wilson, 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 eauses. Where cause has been shown in opposition 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 Board of Fillmore, 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. Hlearing. 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. BHil, 6 Mich,, 242.
28015. Where' one party concedes that the judgment of the Court
must be for his adversary, to the -full 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. Sangers. Truesdail, 7 Mich., 9.
2806. A question as to whethera 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 dismniss.
7ower v. Detroit and -Milwaukee 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 nSupreme
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 required to go to?a hearing cif the
case upon the notice previously given. F-arrand v. Collins Iron Go., 8
Mich., 136.
2809. Matters appearing in the transcript filed, but which constitute 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. Milerd v. Reeve8, 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 argument. People v.
Treasurer of Wayne Co., 8 Mich., 392.
2811. Judgment on exceptions. The Supreme Court cannot, on reversing a judgment on exceptions, proceed to give such judgment as the facts 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 v. People, 8 Mich., 150.
2812. Damages for delay. Where error was brought on a
judgment taken by confession on a promissory note, and the errors assigned consisted of mere irregularities in the entering up of judgment;
held, on affirming 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 refused. Storey 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. Eagle, 7 Mich., 306. They are also allowed
to the prevailing party on the hearing. Supreme Court Rule 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: Lester v, Sutton, 7 Mich., 329.
2816. Where a party has given notice of a motion which he declines
to call uAp costs ofthe motion will be awarded against-him. Johnson v.
Provincial Insurance C(o. of, Toronto, 11 Mich., 455.
2S17. Authority ofattorney. The Court-wiln not require attorneys to produce their authority to prosecute a writ of error on
behalf of one of the plaintiffs, where there is no showing that they
are not duly authorized, and on the contrary it appears that the attorneys were employed-by the other plaintiff to take charge of the case
generally) and that the one so employing them was, ih- fact, the party
responsible in the case, and bound to protect the other from liability.
O'Flynn v. Eagle, 7 Mich., 306.
356




PRINCIPAL AND AGENT.                  ~ 2827
PRINCIPAL AND AGENT.
2818. General agency, how proved. If the facts and circumstances, or the habit and course of dealing show either an original
appointment, or a subsequent andcontinued ratification of the acts done,
they will be sufficient to establish the agency. )Lyel v. Sanbourn, 2
Mich., 109. For a discussion as to whether certain facts established a
trust or an agency, see Titus v. Minnesota Mininag Co., 8 Mich., 18g.
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. City f Detroit v. 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 agreement 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 dealings with an agent whose authority the principal repudiates. Pratt v.
Campbell, Har. Ch., 286.
2822. If the principal recognize and affirm the existence and acts of
an agent, a mere stranger will Tnot be permitted to controvert either.
Scott v. Detroit Young 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
v. 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 sel 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 to
give notice, in a newspaper, for sealed proposals for letting the convicts,
and the agent, without giving such. notice, hired them out for a term of
years, the hiringwas held void-the mode of letting 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.
Blackmar, 2 Mich., 330; Beaubien v. Poupard, Har. Ch., 206; Ingerson
v. Starkweather, Wal. Ch., 346; Ames v. Port Huron Log Driving and
357




~ 2834'      PI1INCIPAL AND SURETY.
Booming Co., 11 Mich.,:.139. ~ Public officers.-are agents within this rule.
People v. Township Board of Overyssd, 11 Mich., 222.
2S28. 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 portion of their number, though less than a majority, united with others in
taking the contract, such contract. was held void. Peoplo v. Township.Bocard of Overysse,, 11 Mich., 222.
2829. One acting as agent for the owner of- property has no right
to make himself the agent of others for the purchase of'the property,
nor to take any advantage of the confidence his position inspires to obtain the title himself., iMoore v. Mandebaum, 8 Mich., 483.
2830. Nor can such agent make a valid purchase from his principal
without fully and fairly 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.
2831. Ratification. Where, in plaintiff's absence,' his elerk received 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
plaintiff wrote the debtor respecting it, not repudiating the act of the
clerk, and, on subsequently suing the debtor, offered to return the unpaid draft, it was ied that these' facts furnished evidence -from, which
a jury might infer a ratification by plaintiff of the act of the clerk.
Jennison v. Parker, 7 Mich., 855. See Peninsular Bank- v. Hanmer, 14
Mich.
2832.:An agent is incompetent to ratify his own unauthorized act.
lTrudo v. Anderson 10 Mich., 357. See supra, 709, 2460.
2833. As to admissions by agent, see supra, 1718, 1719. That a reference by: a party to the business men of a place for information as to
his responsibility, would not make their statements concerning him
evidence against him on the ground of. agency, see Rosenbury v. Anges, 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 authority, -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. A~ 2841
the co-partnership names to the note, it was held that the. defendants
were liable thereon. Bowen v. Mead, 1 Mich., 432.
2835..Gvling time to principal. Where a guarantor obligated himself to pay all the liabilities up to a sum certain, of the principal, for advances by way of notes, &c., if the principal should fail-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..dd, that such credit to the principal beyond the time limited in the
bond,: discharged the surety. Farmers and Mechanwts' Bank v. ffercheval,
2 Mich., 504.
2336. The guarantor is equally discharged though the renewal notes
be signed by and binding upon one only of several principals constituting a partnership. Ibid.
2837. 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. Goukd, Wal. Ch., 478.
2838. 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 consideration for the promise. The action in such case is upon the original contract, and not upon the new promise. Porter v. Hodenpuyl, 9 Mich., 11.
2.839. 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. Ives v. Bank of Lansingburg, 12 Mich., 361.
2S40. An agreementbetween 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 n-t prevent its having this effect upon the rights of
the vendor as indorser. Ibid.
2841. When surety bound- by Judgment against prinelpal. 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. LotArop v. Southworth, 5 Mich.,.436.
359.




~ 2849              PROBATE COURTS.
2842. Payment of usury by surety.  A surety who pays
usurious interest to obtain time to paythe debt of his principal in, cannot collect the excessive interest so paid by him ofhis principal. Thurston v. Prentiss, 1 Mich., 193.
2843. 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.
2S44. Special case: 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. MiU// v.
Spencer, 3 Mich., 127.
PROBATE COURTS.
2845. Power 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
Rue High, 2 Doug., 515.
2846. Power to record prior decrees. A record 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. Kimball, 1 Mich., 308.
2847. Approval of a void bond. Although a Judge of Probate acts judicially in allowing an appeal from commissioners to audit
claims against estates of deceased persons, and in passing upon the sufflciency 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 Dickinson, 2 Mlich., 3887.
2848. 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 sufficient sureties, &c. Ibid.
2849. Verification of petitions, &e. Though the Probate
Judge may properly require an absolute verification of anything whereon his action is required upon the merits, yet when the party c0m360




PROHIBITORY 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 Robinson, 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.
2851. 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.
2852. 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 respective Courts. Accordingly, where attorneys procured an order for a
capias from a Court having authority to issue process against the person 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. Ward v. Cozzens, 3 Mich., 252. For general rules of protection
to officers in the service of process, see OFFICER.
PROHIBITION.
2853. The writ of prohibition cannot be issued to restrain any action 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 prohibitions of this act. People v. Hawley, 3 Mich., 330.
2855. Jury trial. In an action before a justice of the peace to
recover a penalty under the fourth, section, the defendant was not entitled to a jury without paying the fees therefor.  People v. Hoffman, 3
Mich., 248.
361




~ 2863                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 specified 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 violations..Matter of Morton, 10 Mich., 209; Matter of Hall, 10 Mich.,
210.
2857. Mortgage of liquors.  A mortgage of liquors under
which possession has been taken by the mortgagee, cannot be treatcd as
voil as between the parties, or as between the mortgagee and the creditos of the mortgagor. Bagg v. Jerome, 7 Mich., 145.
2858. 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, 12 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
thoe statute.  Niagara Fire Insurance Co, v. De Graf'f, 12 Mich., 124.
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, 8 Mich.,
598.
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 theSupreme Court of the United States.
2863. Trespass on. The general government has all the common law rights of an individual in respect to depredations. committed
upon the public lands. And the Commissioner of the General Land
362




PUBLIC LANDS.                     ~ 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. Stephenson v. Little, 10 Mich., 433.
2864. Town sites. The act of Congress " for the relief of citizens of towns upon the lands of the United States, under certain circumstances," 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 Seby, 6- Mich., 193.
2865. 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.
2866. 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. individuals. Ibid.
2867. The act of the legislature of Michigan relative to Ontonagon,
approved February 29, 1853, was held void under said act of Congress:
First, because undertaking to dispose of the whole trust to the person
named therein, and his grantees, and authorizing no one else to be considered or receive any relief; and, Second, because not prescribing any
rules and regulations for the execution of the trust. 1 bid.
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 provisions of said act, and is entitled to no relief. Ibid.
2869. Where land 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. Ibid.
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
368




~ 2879            QUESTIONS RESERVED.
-   _:.:...,......
the common fund, to be disposed of for the benefit of the town, is entitled to appear and be heard. Ibid.
QUESTIONS RESERVED.
2871. What may be reserved.  The Circuit Court can reserve for the opinion of the Suprerme Court questions of law only, and
not questions of fact, or questions involving both law and fact. People
v. Adwaards, 5 Mich., 22; Bagg v. City of Detroit, 5 Mich., 66; English v..Fairchild, 5 Mich., 141; Clark v. Dorr, 5 Mich., 143.
28S72. 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 ia 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. People v. Adwards, 5 Mich., 22.
2873. In equity. Questions of law, may be reserved in equity
cases. Bagg v. City of Detroit, 5 Mich., 66.
2874. How  presented. The questions must be presented directly 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.
English v. Fairchild, 5 Mich., 141; Clark v. 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 judgment if the objections were not well. taken, and the whole case was
thereupon.reserved for the opinion.of the Supreme Court upon the objections so taken; it was held that the Court had no jurisdiction. English v. Fairchild, 5 Mich., 141; Clark v. Dorr, 5 Mich., 143.
2876. l[Must 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 v. ity of Detroit, 5 Mich., 66.
2877. Appeal afterwards. It is no objection to the jurisdiction of the Supreme Court on questions reserved, that the same questions may afterwards come up on exceptions or appeal. Ibid.
2878. The Recorder of Detroit cannot reserve for the
opinion of the Supreme Court, questions arising upon the trial of
offenses against the city ordinances. People v. Jackson, 8 Mich., 78.
2879. Want of constitutional power. A plea in bar was
364




QUO WARRANTO.                        ~ 2885
interposed 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 question; the constitution having conferred upon it appellate jurisdiction
only, except in certain special cases, of which this was not one. Sanger
o. Truesdail, 8 Mich., 543. [This case is regarded as having settled, fbr
all practical purposes, that the Supreme Court has no jurisdiction of
questions reserved.]
QUO WARRANTO.
28S0. To try right to an offlce. 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.
28S1. Consent or relator to filing.  The fact that an information was filed by the Attorney General as on the relation of a claimant 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 proceeding. People v. Knight, 13 Mich., 230.
28S2. 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. Hartwell, 12 Mich., 508.
28S3. 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 Cleve, 1 Mich., 362.
2SS4. But it is not enough that an officer appointed for a temporary
purpose should show a legal appointment. He must show the continued existence of every qualification necessary to the enjoyment of the
office. People v. Mayworm, 5 Mich., 146.
2Sf 5. 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 relator's title to the office be set forth. People v. Miles, 2 Mich., 348.
365




: 2891                QUO WARRANTO.
2886. Against corporations, Whether quo warranto or scire
facias is the proper remedy by which to proceed against a corporations.
for violating its charter, quere. People v. Oakland County Bank, 1 Doug.,
282. [The Revised Statutes of 1846-Comp. L., ch. 161-contain. provisions giving this remedy against corporations.]
287... -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. River Raisin and Lake Erie B.
R. Co., 12 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 denied the exercise of banking powers, the issue tendered by it was immaterial. Ibid.
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 perform its duties, until the contrary is alleged. Attorney General v. Miechigan State Bank, 2 Doug., 359.
2S90. 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 relator 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 con366




RAILROAD CORPORATIONS.                   ~ 2898
elude to the couLtry, and not with a- verification. People v. fartwoel,
12 Mich., 508.
2892. 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. People v. River Raisin and Lake Erie R. R. Co., 12 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 o$ce. People v. Connor,
13 Mich., 238.
~2894. Trial of issues: 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, embracing 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 v.
Sackett, 14 Mich.
2895. If a party moves for a new trial on the ground that the verdict 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. Ibid.
RAILROAD CORPORATIONS.
2S96. Fences. 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. Gar-dner v. 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 primarily liable to the same extent that the corporation would have been
for the same acts or omissions. Ibid.
2898. Where, therefore, while a contractor was engaged in constructing 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 held, that the contractor was liable
for the loss, notwithstanding the owner turned the sheep into the field
867




X 2906                RECOGNIZANCE.
after the route was-taken possession of, and while the contractor was
constantly throwing down 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, however, never opened such books, 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. Held, that the promise was without consideration, and he was
not liable thereon.  Sha'rtz v. Schoolraft and Three Rivers Railroad Co.,
9' Mich.,- 269.
2900. Assessments. Under said General Railroad Act, no levy
of assessments could be made until the whole amount of the capital
stock specified in the articles was subscribed. Ibid.
2901. Right of way: purchase or undivided interest.
A grant by one of several tenants in common to the Detroit and Pontiac
Railroad Company, though not effective as a conveyance, as against
the others, is effectual as a release of damages by the grantor. Draper
V. Williams, 2 Mich., 536.
RECOGNIZANCE.
2902. Who may take. Section 6002 of Compiled Laws does
not confer authority upon the officers therein named to take recognizance of persons in custody, charged with offences, after indictment
found. People v. Rutan, 3 Mich., 42.
2903. Execution by sureties alone,  Sureties in a recognizance may be bound separately from their principals. People a. Dennws,
4 Mich., 609.
2904. Description of offense. A recognizance need not set
out the offense with the same particularity as an indictment. If described with such certainty as to show that the case is one in which the
officer is empowered to take bail, it is sufficient. People v. Rutan, 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. Ibid.
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 a. People, 6 Mich., 381.
368




RECOORDII   LAW&'. B914
2-907. So also -where'the -description'is "the c'rime of attemit — to
procure-an abortion." Ibid
290S. If the offense has a definite and well understood  e6iueral
nasme-as larceny-describing it by -such: name: is sufficlefit;' Pept`v.
De4nits, 4 Mich, — 609.
2909. Other recitals..  Where a -recognizance has: a condition'
t'do some act fort the d-o'ingof which it' may properly be taken,z and
the Court or officer before whot i it: isa taken has:suthotity thtereforf,
the recognizance is vatid although it does not recite the special circuim-I
stances. under which it is taken; and in declaring upon'uch rectogni,-'
zanoee it is not necesatry to aver facts showing that the- Court- or officer
had" authority to take it -Ibid,:'2910. Where defendant has beei committed"for want of bail bgyth'e
examining magistrate, and subsequently, on his.own application, is let'
to bail 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
being a voluntary act of defendant, of which- he'can only avail. hims'elf
on his own showing' of a legal: commitment, the, presumptions: are in
-fvor of its validity. Danids e. Peop;', 6 Mich., 381.
@911. Loss or indictment.: The destruction of an indictment
before: the term at which the accused is recognized to appear, is no defense to an action upon the recognizance.- Peo. DenniA, 4 Mich., 609.
RECORDING LAWS.
2912. Unauthorized record. The registry of an instrument,not required by law to be recorded, is notice- to' no one. Wing v.' MDoweU, Wal. Ch., 175; Dutton v. Ives, 5 Mich., 515; GatiP  e.. Abbot, 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' sufficiently 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. i6, for confirmation of records of defective instruments in certain cases.
2913. Record of mortgage fromtone having no title.
Where a person mortgages lands which he- holds under a- bond'fora 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.- WAt
v. McDowet, Wal.' Ch., i75.
2914. The object of rgt'lstry laws is to* protect subse'quent
bona fide! purchasers'.  An unrecorded deed was good against: the
grantor, under the' Ordinance of 1787. Godfro-'o xDisbroio, Wal. Ch., 260.
24                                    3




~ 2928             RREC.RD"ING LA. WS.
2915. Priority. A party claiming priority under a registrylaw,
must show a. compliance with its- provisions.: Tliomps8on. Mack, Har
Ch., 150.
2916. But where his deed is first duly recorded, the presumption 18,
that he is a bona fide purchaser without notice, until the rntrary.ap-,
pears. Godfroy v. Di8brow, Wal. Ch,,GO60.
2917. Although a -party may not himself be a bona fide- purchaseea
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.
2918.. 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. SMack, Har. Ch., 150.
2919. The act of 1827' concerning mortgages,. was not controlled in relation to mortgages by the act of the same date "concerning
deeds and conveyances."  Weead v. Lyon, Har. Ch., 863.
2920. Deeds by Governor and Judges. Conveyances of
land by the United States, whether directly through the President or
by the agency of land boards, like the Goyernor 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 Governor and Judges void in favor of a subsequent grantee without notice,
whose deed was first recorded. Moran v. Palmer, 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 afac 8imile of the original. WhitweeU.. Emory, 8 Mich., 84.
2922. Mistake in deed. A contract to give a mortgage was
i.put upon record, but by mistake in drafting it, only the starting point
Uiin the description of lands was given. A mortgage upon the lands inrtended to be described was subsequently given and placed upon record.
I;:t;was held, 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
i-land upon which the mortgage -mentioned in it was to.be given. Bar.;?owaos.. Baughman, 9 Mich., 213. As to whether the. record of a- deed.containing a mistaken description is notice, see supra, 1005. Also,
*:QuirJ vO. Thomas, 6 Mich., 76.
29~23. Where property was described in a mortgage- as " lot number
Wny, inetiection twenty-eight, on the Forsyth or Porter Farm, in the -city
~of;Detroit-being on the southwest corner of Fort and Sixth streets,"
~hich.description was correct, except as to the section, which should
/On




REBCO?.'-ssT.~
have been:eighteen, and it did not appear that: there was a'setioon
twenty-eight on-the farm.named, it was- Ye& that the':record of sch
mortgage was notice to subsequent purchasers of the property. Cooper. Bigley, 138 Mich., 463.
2924. 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 slfficient to put -a purchaser of either upon inquiry, quere. "bid.
And see supra, 1005.'
2925. Indefinite record. A writing was recorded as a- separate 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 rcorded was indorsed upon any instrument'not re-.corded with -it, as that was ar extrinsic fact not within the purview of
the registry laws. Bassett'.:ithaioway, 9 Mich., 2&'2926.  Collleral.iwriting. 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." Gordorn, 11 Mich., 531,
2927. Deed not executed by all the grantors. Wh~o
a deed -from several- grantors is puit 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 onrly by whom it has been' properly: exeeuted,
and whose execution of it has, been duly witnessed so. as to entitle it to
record had they been the only grantors named. HalU v. Recdson 10
Mich., I2L
2928'. Notice to prior~ ineumbrancers. The Frcord of a
conveyance or ineumbrance is not constructive noticei to a pFior incumbrancer. Cewr  v. B..igley, 18 Michs 463  Jamz ea. Brown,.1 Mich., 2;
RECOUPMENT;
2929. General rule. A defendant can recoup-those damages
only which spring out of the same contract or transaction upon which
the suit is brought. Ward s., Wiason, 3 Mich., 1.
2930. Where defendant elects to recoup, he can only do so in abatement of the plaintiff's demand. He cannot go beyond that, and have a
balance certified in his favors Weird v.'.elers, 8 Mich., 281. See this
castfor the distinction between set off andrecoupment,
2931. By one or two defendants. In. an action on a promissory 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
87-1




9.3;W UDY.
contract of purehase, to the -sae oxxteit asi ifthe: noteliad been given:
by the purchaser alone. MeHardyv  Wadhwortk, 8 Mich,, 349,
RELIGIOUS. SOCIETIES.
~2-932    Grant t6O  Bishop' for - ch reh.rc: — ontroI - of
elhurch,   Land was conveyed to L., Bishop "of Detroit,-ahnd-hissuccessors in office, in trust, for the erection of a church thereon to beo
used. as a place of' religious worship, ai& -for the: spiritual use, beefiet
aud-behoof of the German Roman Catholic Congregation, in the city'
of -Detroit, according- to the- rites and ceremonieso f said' Roman Cathol'' Church, and: for other trusts therein eXpressed. -The deed- also
provided that in the event of a.vacanqy: in the fficeb of Bishop thappen-'
ing between the death offslishop L.- and the appointment of his suc
ceossor; the -premises should vest, d uri'g.'.sh  aeanccy; in> thd.f6hbishop of the Roman Catholic Church, of which the Diocese should be
a'isfagan'. Trustees of-the -church were afterwards elected' under,eh.
5; of the Statutes. of: 1846, -In: a controversy- between - the offciating
priest and the trustees as to which had the right to rent. the slips, it Was
held-:
1.- Tlsat under the deed of trust, and theconstitution, laws andfusages
fifthe.government: of: the Roman Catholic Church, by whichi the ad~Pxtration  of- the temporalities of thechrureh is vested inm the parish
priest, the right. to rent the slips belonged to lhe priest, and not to. the
t0dslees,
2. That the provisions of said statutes as to the organizationi of relgibuw: societies -Were. hot mandatory, but-'permisbive;:and that -io
chureh could, become incorporated under them;, where the power the
staitute 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 etititled' to become incorporated under
~ 23 of said chapter of the statutes. Snmitt'v. Bonhoof, 2- Mich., 115.
-    sThe statutes as to6 the organization ofreligtoiiu    ueties hiave:sirce
1biianhged. ": See Comp. t14.,-6h; 68; Laws of 1f1, p. 228' anuid:f 1862,
p..48...As to gifts, &c., t religious seties, see WLs.
REMESpY.
2933. Choice  tf That:t. whiere one holds a chattel h"ortgAsge
i'ecuri'ty' fobr"'the'payment  f-' iabte,; aiiid' aftteads t's:a'  ortg oe on real estate conditioned'in the;uesu al fom riiot'the performance
ottlhe condition of the note, he, is not obliged- t i'fesort -to:the chattelM2'




,LVI VW T.                        2940
mortgage before foreclosing-that upon-rreal;estate, -see Dea* v.: R~ r, 5
Mich., 423.
2934. Collateral~ That the judgment of a Court having jurisdiction of the person and of the subject matter, cannot be assailed cllaterally, on the ground that -the record doe;s not sOlbW the denmand Sued
to have been due, or to have belonged to t-he plaintiffi, ee; a S'eek t'.
gatXestbn, 7 Mich.,'511.
REPLEVIN,
2986. In.i..hat ciases. A~  supervisor entitled to the exclusive
possession and control ofan ssessment roll, may bring replevin in bis
offictal characthe ierefor. Pl;niz'. Clark, 2 Michi, 827.
2936. One cannot bring replevin for property actually in his oWn
possession at the time, againist ian bfcer who hias livied upon but has
not removed it. Hickeylt. Heidk, 12 Mich., 99..2937. The rule that a tenant in common of Chattels cannot maintain replevin against his co-tenant, for the common property, applies to
tenants in common of ships and vessels. WethkreU,v. Speneer, 3 Mich.,.123.
2923. Plaintiff 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 the payment therefor, and pay
over to him a certain amount per thousand feet, retaining the balaace
for their services. The contract provided 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 to hIiMm. The logs having been levied upon in
the hands of the firm, as their property, it was held, that plaintiff was
entitled to immediate possession, and might maintain replevin therefor.
Basset v. Arimtroang,'M ih., 3~9T.
2939. Defendant being in possessibon of a quantity of wheat, plain'tiff brought -eplevin for- one hundred bushels, which were measured
out and taken under the Writ from the whole'qiantity. Held to be no
objection' to the maifitafinance of the adction, that: laintiff did not demand and take under the Wiit the whole quantity; the evidence showing'the whole to have been the plaintiff's, and that he did not own as
tenant in common withi othe rs.'.roe v. Derbtyshire, 10 Mich., 479.
2940. For beasts distratine;d. The'statute-Coimp, L., p.
1341-giving a writ of feplevin to one whose beasts -ai:ldttraimd or
impounded, provides for a- special iroceeding; and expressly negalties
a remedy by replevin in any other; manner thni is therein' prvidodJohwns  v. Wing, 8 Mich, 168.
373




~ 2948                    RBEPLEVIN.
2941. For exempt property. In replevin for property taken
in execution, and claimed by plaintiff as exempt, it is not necessary
to: specifically set out the character of the property nm -the: declaration, so as to show the exemption. ElZUott v. Whtitmore,  S Mich., 532.
2942. Demand.:Where -one's property is disposed of without
authority, by the party having it in, charge, the owner may bring replevin therefor without a previous demand, notwithstanding the property is 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.
2943. One to whom goods hiae ben -"assigned by way of security,
but who has allowed them to remain in possessiQneof the assignor is not
obliged to demand-them before bringing replevinwagainstzan officer who
has seized them under an execution against the assignor. Jackson v.
Dean,- 1 Doug., 519.
2944. Descript!on of property. "A quantity of corn conSisting of about two hundred bushels, and a quantity of rye consisting
of about one hundred bushels," held an insufficient description.- &ns,. O.maon, 1 Mich., 92.
2945. Affidavit.  Under the Revised. Sttntes 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 ile a new affidavit, and thereupon to amend- the writ by inserting the true name.
Parks v. Barkham, 1 Mich., 95.'
2946. The averments in the affidavit-" that the property was. not
taken for any assessmentlevied 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:  xecution "-being required by the
statute, must be inserted, without regard to the nature of the property
replevied. Pheniz. Clak, 2 Mich., 327.
2947.: Defenses: another suit pending. In replevin -by
one plaintiff against three defendants, plea in abatement was: interposed of a prior action in replevin, by two of the defendants against the
plaintiff and another, by, virtueof which the other:defendant, as sheriff,
took and detainedthe property. Held, that the issues in the two cases
were not identical, as the possessory rights of the sheriff under  his
writ, if valid, could not be impaired or.affected,: although $the.plaintiff
in the present suit should show a perfect tite, as agsinst.the, other defednts, the plaintiffs in the firest.sit,  *e=en v,at.aigz,;  Mich,,400,.. 2948.; GeoeratIl Issue. Under,. the- Revised: Statutes of 18.38s as
amende.d by Laws of 1839, p. 230, the-general issue put. iht issue! every.fct stated in the declaration necessary to usatain the plaintiff's action,
374




,REPLE~VIN.                     ~ 2958
and not the detention of the: property only. Loomia v. Foster, 1 Mich.,
165,.2949. 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
Be2den.. Lain.g, 8 Mich., 500.
2 g950. The defense. that the, property was taken tunder. legal proceedings against a third person claimed to be'the -dwner:thereof, is
admissible under  the' general issue without notice,' Shook v. Davis, 6.
ticlh,.156.'See further, Craig.v.. Grant, 6 Mich. 447.
9951. Damages. A judgment for more than nominal damages is
erroneous, if no evidence of damages was submitted. Phlniz v.  Clark,
2 Mich., 327.
2952. The plaintiff cannot recover, as a part of his damages, the
value of the services of his att9rney and counsel in attending the suit.
Hatch o. Hart, 2 Mich., 289.
~2953. 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 balance. a Dai4son v. Gunsrolly, 1 Mich., 388.
2954. 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.  Szeer v..Afed,
5 Mich., 107.
295I5 - Where plaintiff -recovered judgmen-t 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 Ahdd, that.the. Ciruit Court, under the Statutes of 1838,
had; no such power; but thatiunder ~~ 17.and 135 of the Justices' Act,of 1841, it had power to award a restitution of the property.. Pe e —v.
Judges.of Jack-son.Cirui 0 qrt,, 1 Doug., 302.
2956.   xeeutlonis against the body, cannot be issued on judgments in replevin,:. Q.uer, i.Boker-, 11 Mich., 204.
2957.;londe,. Under. the  Statutes of, 1838 the.Court could not
compel the plaintiff to.file.. a nw.replevin bond. /.LyAch v. Br~u'ce, 2
Doug., 123.. But see: CQoahIP..,:,~ 5020 et se:for new provisions.
9658. Suit on bond.: Where plaintiff in replevin is nonsuited,.2./.t




~.'965.     SCHOOLS AND S.CHOOL DISTRICTS.
the defendant, if ha waive, a:return of the property, is entitled to a
judgment for its full value. And in an action upon.the replevin bond
afterwards, the measure of damages is. the amount.- of the judgment;
and the obligors cannot show, in mitigation of damages, that the defendant in replevin was but a part owner of the property-: Waiiams v. Vail,
9. Mich., 162.
2959. After judgment for the defendant in replevin, an execution
was issued, in.form in assumpsiti and purporting to be in favor of a
plaintiff. It was notamended,. but, after return unsatisfied, the replevin
bond was sued. It was -hed that this- could: not be considered an executioivon the'judgment, and that consequently no liability upon.the replevinbondlwas 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. Fraeer a. Little, 13 Mich.,
195.
RES'JUDICATA,
2961. A decision once made in a case must continue to go>vern, it,
notwithstanding the point then decided is not held to be law in other
cases. N.edw. ery v. Trowbridge, 13 Mich., 263.
REVISED STATUTES OF 1846.
2962. The whole body of laws designated as the "Revised Statutes"
of 1846 was passed as one act, and must be construed together as such.Perryv. tHepburrw, 4 Mich., 165.:
SCHOOLS AND SCHOOL DISTRICTS.
t963. Districts. Under the'statute of 1840-Laws 1840, p. 215empowering 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 necessary," they might dissolve one organized district and annex it to another.
People v. Davcidon, 2 Doug.,:121.
2964. The city of Saginaw was incorporated of territory which constituted about one-fourth of School District No. One- of the township of
Saginaw. The charter provided for a -board of city school inspectors,
and it was hed, that'lit had the effect to, sever -from the, school district
the territory included in the: city, without in any- other respect- depriving the distrit -of'a-ny of its legal rights. TownkAip of Sagiunasw. Schoot.
District Noe..Ore.of the C ity of Saginaw, 9 Mich., 541.
2965. The:cityin such case has no remedy to recover its p rpor876




tion of the school district moneys or other property; there being no statute providing for such recovery. Ibi[d.
2966. Director, The director of a school district is not legally
entitled to compensation from the district for his services.  Tiinman
a. School District No. One, 4 Mich., 168.  The law is since changed,
so as to authorize compensation to be voted by the district. LawE  Qf
1859, p. 1047,:   49,.:2967., 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.
Brewr v. Panmver, 13 Mich.,. 104.
SET OFF.
-96S. Of secured demneand. A. defendant who holds collateral
security for a demand due him, cannot be required to deliver up the securities as a condition to.his demand being received as a set off. Waslace v. F'innegan, 14 Mich.
2969. lUnliquidated damages. Where the plaintiff's demand
is for goods which the defendant has agreed to sell and deliver, the damages are unliquidated, and consequently no set off can be allowed under
the statute. Smith v. Warner, 14 Mich.
2970. Demand assigned after suit 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 made to it in an action by the bank itself. Newbery  v. Trowbridge, 13 Mich., 263.
2971. Set off by one Joint. defendant after death of
the.:other. Where one of the defendants dies and the suit is continued.against the other, he-may~ set off against the:.plaintiff's demand
a debt due to himself individually. Ibid.
29712. Election of remedies.  One who has given a mortgage for the purchase price of lands, which were conveyed to him with a
covenant against incumbrance.s, ls not tconfined to his remedy upon the
covenant, but may set off the amount -of a prior mortgage which he has
patd' agatnst his own mo:rt.gag  when: suit is: brought to-foreclsef it.
Dl  iroit. and' Micshl'k: veRa6l0a7 a.4-h.'-i'gg8s' -12 Mich., 45; SBee also,
Di*sboiea. Jtone,- Har~ Ch.si'Oh.1. As to set off in equity generally, see
suisra, 1i18 to- 1226.
877




~ 2979                    SLANDER.
SHERIFF.
2973. Deputy. A sheriff cannot constitute a deputyfor a particular act except by warrant in writing. People v. Moore, 2 Doug, 1.'29t4. The under sheriff may act in his own'name, and need
not sign' a return to a writ made by him ifh the name of the sheriff,
"alndar V. Olcott, 1 Mich.; 844.
2975. Oath and bond. The statute which requires of the person elected:to the office of sheriff, that: he shall file the oath and bolnd:of
office -within twenty days after receiving official notice 6f his election,
or within days after the commencement of the term for which- h`e' was,
elected, only applies to the person declared elected by the board of canvassers, and not to one to whom the board refuse a certificate;. Peope v.,Jiayworm, 5 Mich., 146.
2976. Suit on bond. By statute, the party for whose use a
sheriff's bond is sued, is to be deemed the plaintiff in the action. Where
one of two persons jointly'entitled to prosecute ithe action died, it was
teld 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.
2977. Sale without notice. The sheriffis 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. Ward o.' Lngstreet; 2 Doug., 172.
2978. Return of proeess. That, for the purposes'of a creditor's bill, an execution cannot be legally returned until the return day,
see Williams v. Hubbard, i Mich., 446; Smith. Thmpson, Wal. Ch., 1;.Beach v. White, Wal. Ch., 495. But that, for obtaining a new execution
to another counhty return may be made at any time, see Freenia' v.
Miigan State'iak,  al.Ch; O  62. Ifa debtoe offers to tuirn out pro/perty
upon execution in another county, the'creditor must take eecditionto
that county'; and if he files creditor's' bill without doing'so, a plea setting forth the'offer will be a bar to the suit. Ibid.
SLAN1DER.
2979. Deealartlon'in -slandercontained 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 having spoken and published of and concerning the plaintiff as postmaster,
&c.,: that "he did not think Marlatt's,. resignation or his petition had
878




S    PER.                      ~ 298
gone to Washington; he had no doubt they were embezzled at F.;" adding, by innuendo, (" at the postoflice at F., of which the plaintiff was
postmaster, meaning), meaning and intending thereby that the plainm
tiff had delayed and prevented the transmission of the said resignation'
and petition to the Postmaster-General at Washington,!' &c.; Held,:that
the count was fatally defective, the words charged to have been spoken
and published appearingnot.to be actionable.  Ta/ylor v.. fneend, 1
Doug., 67..2980. The words would hae become actionable had the induceiient
of the:declaration further averred, that the letters or papers referred to
were placed in the post officeat F., or entrusted to the care of the defend~ant as postmaster at F.,.or were passed through said post office to
their place of destination; since the embezzlement by defepndant. of
papers which so came into his apossession, is made criminal. Ibm.
2981. Extrinsic facts or circumstances showing the actionable
quelity of words, not actionable per se, must be directly averred in.the
inducement of the declaration. Ibid...
2982. The ffice of ofan 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 preceqdent averments, and-it must be supported by the inducement and colloquium.:Ibi.
2983. The Qmission of any averment, in a count in slander, that the
defendant mnEliowuV published the matter alleged, is cured by verdict,
though it would be fatal on special demu rrer.[ U,Tb,..2.984.  Proof ofrwords as:. laid. A count. in slander alleging
that the deffendant 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;t F., or
he,thought the papers were embezzled at the post.office at F.. Ibid..899&8,   Ilalice, Words spoken, by defendant after the commencement 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. IMid. But see TZompson v. Bower., 1
Doug., 821.
2986.Notlce Of defense. To a declaration. in slander,:a.lleging.;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 published as charged in the declaration, the defendant had good reason for
379




f~ 2994                   SLANDER.
uttering and publishing, and did it from good motives and for justifiable
ends.".eld, that the notice was fatally defective, especially in omitting any averment that that the plaintiff Wift. anddebeatey swore falsely.
2%ompon-. BowTer8, i Doug., 821.
29387. Hlittgation or damages.  Evidence of the truith, or
tending to prove the truth of the slanderous words, is inadmissible under
the general issue in mitigation of damages. Ibid.
2988. So also is evidence that the specific facts in which the slander
consisted were communicated to the defendant by third persons.'Iid.
2989. But the defendant may show under the general issue in mitigation of damages, that -previous to the publication Of the slanderout
words by himself, reports to the same effect were in common circ]a
tion in'the vicinity of: the- plaintiff's residence, and Were communicated
to the defendant. -Fart;.- Reoo, 9 Mich., 358. See Moi/er  v.,Pine, 4
Mich., 409.
2990. Where the words are actionable in themselves, and general
damages only are claimed, the defendant is not entitled'to shOw in 1niti,
gation of damages under the general issue, that, "during the six years
prior to the suit, inveterate feelings of hostllity'had existed between the
plaintiff and the defendant, and that the plaintiff had taken every opportunity to irritate the defendant." Porterc. H.end7rso, 11 Mich., 2A.
2991. Where the action is for charging plaintiff with perjury, evil
dence cannot be given by defendant, that on an Occasion not appeaflng
to have any connection with the matter in controversy, the plaintiff
called him a liar and a perjured wretch. Ibid.
2992., Nor, where general cdamages only are clatmed; is evidence
admissible in mitigation of damages,' that plaintiff has statedthe slander
did him no damage. Ibid.
2993. The defendant cannot give evidence under the general 4isSue
of a threat by plaintiff " that he would ruin him and drive him out oft
town;" which threat came to the knowledge of the deifndast previous
to the speaking of the words alleged to be slanderous. d. oNeY e. Poie, 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 Iin the:declaratoin that:' he had
not been suspected, until the'speaking of the words, of beilg guiltyr of
the offense charged. bid.
880




SPECIFIC PERFORMANCE.                      38001
SPECIFIC PERFORMANCE.
2995. Parol contract 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 improvements made. Burtch v. Hogge, Har. Ch., 31; Bomier v. Caldwell, Har.
Ch., 65; Same case on appeal, 8 Mich., 463; Norris v. Showerman, 2
Doug., 16. But the part performance must unequivocally refer to and
result from the agreement. McMurtrie v. Bennette, Har. Ch., 124;.M/lard v. Ramsddel, Har. Ch., 373.
2996. Delivery of possession is an act of part performance. Weed v.
Terry, Wal. Ch., 501; Same case on appeal, 2 Doug., 344.  But the possession cannot avail complainant when it is sufficiently explained by the
relation of father and son between the parties. Jones v. Tyler, 6 Mich.,.364.
2997. 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.  McMurtrie,. Bennette, Har.
Ch., 124. The ground of interference is not the parol contract, but that
there is fraud in refusing the completion of an agreement partly performed. Ibid.
2998. Certainty. The parol contract, in order to be enforced,
must be certain in all its essential particulars. McMurtrie v. Bennette,
Har. Ch., 124; Bomier v. Caldwell, 8 Mich., 463; Milard v. Ramsdel,
Har. Ch., 373.
2999. It must be proved in the clearest manner, and must be substantially 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 asking its specific performance, but from the evidence it appeared that the
agreement was to convey to the husband, the bill was dismissed, notwithstanding there was evidence in the case that the husband afterwards 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. MeMurtrie v. Bennette, Har. Ch., 124; Hawley v. Sheldon
Har. Ch., 420.
3001. Part payment of the purchase price is not, of itself, sufficient to warrant a decree for the specific performance of a parol contract for the purchase of lands. McMurtrie v. Bennette, Har. Ch., 124.
381




8010            SPE FIC PRF;FlMtP     ACE,
3002. Inadequacy offpice alone, without being so gross and
palpable as to prove fraud, is not a good objection to specific perforcmance.;ustck.  Hogge, lwar. Ch., 31.  See  ut. Tie, 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. WalUace v.
Pidge, 4Mich., 570.
3004. Wehat deemed material.  Time, place and mode of
paymen't are'nt considered matters of substance, unless, by express stipulation of the parties, they are declared to be so, or unless from the
special nature of the case, and the necessary intention and understandiag 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 otherrespects the Court may enforce it. Bomier V. CaZdwoel, 8 Mich.,463.  That time is not material, see also, Walkame v. Pidge, 4 Mich.,: 570'; Morris v. Hoyt, 11 Mfch., 9; RiEhmondl-v.:Robinson, 12 Mich., 193; Converee v. Blumrik, 14 Mich.
3005. Waiver of laches. Where the owner permitted another
person to occupy and improve lands for a number of years, under -a verbal 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 purchaser as should debar him from specific performance. IngersolU v. Horton, 7 Mich., 405.
306,. A notice served by the owner, In such a ease, requiring the/
purchaser to pay for-the land in a specified time, and take a deed therefor, estops him from taking advantage of laches of the purchaser prior
to such notice. Tbibd.
3007. The' bill must set out the special facts relied upon as sho*ing part performance to take the case but of the statute.  Bomier:,.
Calddtel, 8 Mich., 468.
3008. Unauthorized contract,  A contract made by a special agent who has exceeded his authority,'will not be enforced.'Chainberain v.' Darragh, Wal. Ch.,, 149.
3009. And-where the agent acted for his trustee in selling the uind,
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 que tr'ust, notwithstanding the co'ntract did not' onl its
face disclose the agency. Ibid.
3010. Compromise agreement. Where the parties 6claimed
the same land under conflicting titles, and made. aparol agreement for a
division) and: each toolskpossession of the part set off to him) a specific
382




SPEC1:fiF     P OE::0Pw RMNANCE:.        a8017
performance was decreed, Weed. Trr', Wal. Ch., 501; Sam.cage on
appeal, 2 Doug., 844. See also, Hunt v. Thorne, 2 Mich., 213,
3011, wirfile's dower. In decreeing the specific performance:by
a husband of his contract to convey, the wife will not be compelled to
unite in his deed a-ad thereby-release her dower.  Weed v. Terry, 2
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 aware
of his contract and paid no consideration, specific performance may be
decreed against her, and- she:is not entitled to dower.  Daily v.
Litehkfite, 10 Mich., 29.
3012.. Assignees of a contract may have it specifically performed
in their favor. Street v. 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 Michigan v. il/es, 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 expectation of aid in money: &c. from the! other party formed the sole inducement and consideration to him of entering into.the contract, where it
appears that these expectations were merely the operations of his
own mind, and not raised by any promise or suggestion of the other
party. Hunt v. Thorne, 2 Mich., 2183.
3015. Laches. A party who has. enjoyed the use of the estate,
and of the moneys- arising from) sales: which he had covenanted to
share jointly with another, cannot object the lapse of time where the
complainant filed'his bill for specific performance thirteen. years after
his rights accrued —there being no fraud or unfairness imputed to complainant.. Ibid.
301o6  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. Payment was not made by the.day,'and the seller declared the contract
forfeited. The purchaser subsequently paid the money to- the mortgagee, 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 regarded as;substantially complied with. Richmond. Robinson, 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




show defects. Daily v. L-ithfi7c d, 10 Mich., 29.   See also, DizbgAt v.
Cutler, 3 Mich., 566.
-3081,' The vendor wiill notibe allowed' toforfeit" the t contract f0i "nonpayment, when, not, having the title to convey:, he' i's-not in position to
perform on his own part.'-,  Cmoeers v. Blumrick, 14 Mich.:
3019. Demand of deed. The failure'- f the vendee to tender
performance and demand'a. deed before filing his- bill only affects: the
question of costs.  Morris,. Hoyt, 11 Mich., 9.. 3020. 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-'agree  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 -'ands
to be conveyed by them, and', left it there.. for delivery-the other:party
not having appeared. They'a-fterwards'notified him of what they had
done. Hded equivalent to"a tender of their'deed,- and" a sufficient': request for a deed fromAthe other party. It is not-necessary in such case
for the party claiming specific performance to prepare and tender a deed'
to be -executed by- the: other party. Daily v. Litchfied,' 10' Mich., 29.
3021l. One of the defndants held the land- agreed to be':coniveyed
by him, undera contract of pburchase.' Instead of taking a, deed'to himself, he had it made to his wife, who'. had notice of his' agreement -to
convey to complainants, and -paid no consideration.:  Hed, that -it was
not necessary to demand a- deed of the wife befdre filing a bill against
both for specific performance. Ibid.
3022. Penalty. The fixing by the contract of a penalty for nonperformance, is no objection to specific performance. Ibid.
3023. Averment of performance. Where a part of'the:
consideration consisted in' clearing and fencing, a general allegation
that the same had been performed, was held sufficient. Ibid.
-3024. Stipulation  for improvements. A stipulation in
the contract that the vendee shall " improve the premises,'" but specifying 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.;
3025. Taxes, A: failure-of the vendee to pay taxes as stipulated
In 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. Robinson, 12 Mich., 193.
30206. 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
384




STAMP.&                        ~  034
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 betome ipsofaseo 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. toyt, 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 possession of the land, or some act equivalent thereto. Ibid.
3028. 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 ontraet and the person
to whom the land has been conveyed, should be made parties. to the bill.
Daily v. Litchfield, 10 Mich., 29; Morris v. Hoyt, 11 Mich., 9.
3031. Where the vendee has deceased, his heir at law, and not his
personal representative, is the proper person to file the bill. House 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 prs.. Hawloey v. Sledon, Har. Ch., 420.
8TA4WIPS.
30 3.~, A pers~olwdim:tthe holler of a draft drawn in August, 18638,
made a gift (cf it causoa.ortis to her mother, IaAd;after her death, her
administrator, treatin:the.. draft. asv'vpd $otr~4t  of- a: sufficient stamp,
brought suit against thIa.er: upon: the or. ginal c0nsi4deration. The
drawer, defending in th,O iAtorest oif th:  doxae,:prodtMd' the draft on
the trial,.and placed,tha..equisitc staxp  up: ti,:nxp.u... e of.the act
of Congress of June 83Q,.1864.. It w*.e hld th.at the:t:.draftwa    thereby
pde valid from its inception,,rende$wlg. the gift' valid,.and defeating
the plaintiff's right-of'recover.  Gd.:o. v.  i  ibbard, 13 Mich., 214.
3034.. Where the grante, itn a deed seeks to recover in ejectment
undev-itj it. is competent for-thU.e defendant, although no party. to, te
25                                    385




~ 3039              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 depend upon the value of the land. Groesbeck v. Seley, 13 Mich., 329.
STARE DECISIS.
8035. Where an erroneous principle has, been established by the
judicial decisions of the State, and individuals acting upon it as settled
4law have acquired rights under it, the Court should hesitate long before
~overruling it:; it being better and safer to leave the Legislature to correct the error, as in.that case all intervening rights would be saved, and
injustice done.to no oue. Emerson v. Atowater, 7 Mich., 12.
-3036. But the CoA %will not follow as precedents adjudications out-,side the State —except;th-e.ndjudications of the Federal Courts on questions 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. Ca/dweg v. Gale, 11
Mioh. 71.
STATE OF MICHIGAN.
307. T'he State of Micthigan came into existence,.and possessed the
power of independent State ilegislation, on the adoption:and'ratification,
iby the people of the territory, of the -constitution of the State, and:the.organization of the State government, notwithstanding The State was,not admitted intothe Union for some time afterwards. S.eat -v. Detroit
Young Men's Societyi, 1 ~Doug., 119.
303S. Suits against. A-.State cannot be sued in its.o.wn Courts,
[{there being at the itime no.tatute providing therefor]. Michigan,tate
Bank s. Hastings, Wal. Ch,, 9..SBut this -rule only applies where the
State itsdfis a party defendantl, and not where it is sought to reach,property'in the hands of the State officers, in which tihe State has;ceased to have anylegal interest. Michigan State Bankhuv..tammond, a
iDoug., 527.
3039. The Michigan State Bank conveyed to the State certain priperty on, condition subsequent [see CoNDITIONS, 561 to 568] that the
~State should indemnify and save harmless the bank against certain liaibilities. By act of the legislature, the Auditor General, State Treasurer
vand 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 indeminify 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
8386




STATE:LANDS.                      ~ &848
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 reverted to the bank, and that the possession thereof by the deefendanIs
had cesed.. to be the possession of.the State, and that equity had jursdictiondto.compel the defendants to account as trustees of the bank, and
pay any daniages the bank had suffered by reason of the.failure to.indemnify.  Michigan State Bank v. HTammond, 1 Doug., 527.
3040. It seems, that. as to any money actually received, as proceeds 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. -biid
3041. But the bank would only be.entitled to the relief prayed on
waiving any forfeiture for breach of the condition, and on delivering
eover to the State a portion of the.property which they had neglected
and refused to deliver according to the original agreement. Itbid..3042. Maxims of equity. See this.case for:a recognition -.of
-the maxims, that he who asks equity must do equity,; and that lequity,
while it will lend its aid to relieve against penalties.and conditions,
cannot be evoked to enforce them.
STATE'LANDS..3043. Sale of School Lands.  A certificate of the sale of
primary school land%, signed by a clerk in the office of the Superintentent of Public Instruction, was held not well executed under the laws
in force in 1841! though he added after his name' for JI. TDI.?., Superintendent of Public Instruction." Lee v. Payne, 4 Mich., 106.
~3044. Swamp 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 beep
such December 1, 1857, and owners and occupants of.adjoiningi lands
who were such December 1, 1857. People v. State Treasurer, 7 Mich., 366.
3045. Occupancy of the adjoining lands, under this act, might. con-:ist of cultivation and use, without actual residence, or might be by a
-tenant.  bid.
3046. Though this act might make void any certificate of purchase
issued through mistake, fraud, &c., it.did not confer upon: the Commissioner of the State Land Office power to adjudge void and cancel -such
certificate;'.and he.could not resell the land unless the certificate was
vdluntarily -eturned, ox adjudged void by the proper Court.  Ii.
887




3054                    STATUTES.
STATE- PRISON.
3047. The constitution provides that "No 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 consumption of the country is imported from other States or countries."
What trades are within the spirit of this provision, it is for the agent of
the State prison to determine, and the Supreme Court cannot control
him in this regard. People t. Inspectomr of State Prieon,4 Mich?,/187.
STATUTES.
*048. General rules or construction. Where one part
of an act is equivocal, other portions may be resorted to as guides. The
oowasion 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 Generac
a. Bank of Michigan, aiar. Ch,35; Sibley v. Smith, 2 Mich., 486.
3049. The intention is to.be taken, or presumed, according to what
is consonant to reason and g0oQ&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-fair as practicable, to reconcile the different provisios; of.a* statute so asto make the whole of it consistent and
harmonious. and.where. this: is impossible,'to give effect to the manifest
intent of tlhe legislature.'At oney General v. Detroit and Erin Plank
Road Company, 2 Mich., 138; Peo  v... Burns, 5 Mich., 114.
3051. The intent of the legislature must be gathered from the language used to express that intent: and where the language is clear and
explicit, and susceptible of but one meaning, and there is nothing incongruous in the act, the Court is bound to suppose the legislature
Intended what the language imports. Barstow v. Smith, Wal. Ch., 394;
BidwoeUl. Whittaker, 1 Mich., 469.
3052. The application of particular provisions is not to be extended
beyond the general scope and object of'the statute, unless such extension was obviously designed. Matter of the Ticknor 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-Citeuit 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




STATUTS.                       ~ 3068
237, 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.
Ibid.
3055. The statute requiring non-resident plaintiffs to give security
for costs before: process shall issue in their favor, was held directory,
and security allowed to be given sunc pro tune at any time before a
motion to set aside process for want of it was granted. Parks v. Goodwtin, 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 evidence of it. Hickey v. Hinsdale, 8 Mich., 267.
3057. So is the statute directory (Comp L;, ~ 3436) 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. Rawson e. Parsons, 6 Mich., 401.
3058. Statutes for the assessment and collection of taxes, as to what
-they require to be done for the protection of the tax payer, are mandatory, and cannot be regarded as directory merely. Clark v. Crane, ~
Mich., 151. See Sibley v. Smith, 2 Mich., 486.
3059. Changing common  law. Statutes in derogation of
the common law are to be construed strictly. Sibley v. Smith, 2 Mich,
486. This rule applied to the act authorizing proceedings against garnisheesa  Maynards v. Uornwel, 3 Mich., 809. And to the constitutional
provision relative to the property of married women  Brown v. Ffid,
4 Mich:, 322.
3060. The statute dividing murder into degrees does not chauge
the common law definition of murder; and under an indictment in the
common law forni, the defendant may be found guilty of murder in the
second degree. People v. Doe, I Mich., 451. See People v. Potter, 5
Mich., 1; People v. Scott, 6 Mich., 28'7
3061. Giving a new right. Where a statutegives a new right,
and prescribes a particular remedy, the party is confined to that remedy.
Thurston v. Prentiss, 1 Mich., 193; Craig v. Butler, 9 Mich., 21.
3062. Curing defecta. On the change from the territorial to
the State government, the legislature of the State abolished the Supreme Court ofthe terrtory, 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 be389




~ 3071                    STA1TUTES.
teen an original Iaw-on fii, ant'the printed copy thereof,'the original
must prevail.  Tulburt v>.'Mrriam, 83"hici., 144.
3064. When to take effect. *A law was passed February 4,
1859, providing for an election "at the annuaf township election to be
heldi in April next." The' law, under the constitution, did not take
effect until Hay410, 1859.  Hed, by two oftlie 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. Ruddiman, 10 Mich., 125.
3065. A statt'e passed to take effect at a fttture day is to be understood as speahing from the time it goes into operation, and not from the
time of its passage. The intervening period'is allowed to enable the public to become acquainted with its provisions; but until it' becomes operative as a law, they cannot be compelled'to govern their' actions by itL
Price v. fHopkin, 13 Michl., 318.
3066. Where, therefore, by the law.- as it stood on the 31st 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. 227 of
1863, (S. L., p. 388) if applied to tie case,.would have thie effect to cut
off all remedy the moment it became operative, it was herd not to apply to such case. Ibid.
3067. Effect of repeal. Where a- actn appropriated highway
taxes collected in a certain town, among others, to a special purpose,
and appointed commissioners to disburse the same, but before the taxes
had been paid over, though after legal proceedings had been commenced
by the commissioners to compel payment, the act was amended by striking 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. Tivey A.
People, 8 Mich., 128.
3068. A penal statute being repealed without a saving clause of
penalties which had accrued under it, such penalties cannot afterwards
be' recovered. Engle 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, butleaves them still in force.  Campau
a. Mity of Detroit, 14 Mich..3070. The repeal of a law giving a Court power to license administrators to sell real estate, after the license has been granted, but before
a sale has been made, is a revocation of the license. Ccampau s. Gillett,
I Mich., 416.
3071. Saving clause. The Statutes of 1838 (p. 395) authorized'the renewal of a justice's execution returned unsatisfied. The Justices'
390




TAXATION AND TAX SALES.                 g 80376
Act of 1841 did not authorize such renewals, but 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. Jfackson v. ShAdon,
2 Doug., 154.
3072o. 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. Robinson v. Steamboat Red Jacket, 1
Mich., 171.
3073. Revivor 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 appointment 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 general statute on the
subject, see Miger v. Grandy, 13 Mich., 540.
SUPERINTENDENTS OF THE POOR.
3075. When application is made by a pauper to a county superintendent 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 subjects for temporary and permanent relief, a single member possesses
the whole power of the boardl  Hewitt v. Superintendents of the- Poor,
5i Mich., 166.
TAXATION AND TAX SALES.
3076. Oath of assessors.  The absence of any record in the
town books showing that the assessors were sworn, does not furnish
prima facie evidence that they were not sworn. Sibley v. Sinth, 2 Mich.,
486.
391




8 3083          TAXATION AND TAX SALES.
3077. Signing the 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 cured by the assessors signing the certificate attached to the roll. Ibid. But underthe law of 1842- the signatures to the certificate were sufficient.  Lacey v. Davis 4 Mich., 140.
307S. Certificate to roll. A certificate of the assessors which
states that they have estimated the real estate " at'a sum which, for the
purposes 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. Levy 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,
38161.
300S. Description of lands. The description of lands assessessed, or sold for taxes, by the use of initial letters, abbreviations and
figures, is sufficient.. Sibley v. Sminth, 2 Mich., 486;; Conmp. L., ~ 804.
301. Ejectment. The plaintiff gave in evidence tax deeds which
describedthe land as "the west half of the southwest fractional quarter of section twenty-eight," &c., containing fifty acres, more or less. It
appeared that 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, thatunder 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'nrt sufficient fer the purposes of assessment. Amberg v. Rogers, 9
Mich., 832.
302  But het/w, hso, that the description was suficient for.the. purposes 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 define, and a sale of the remainder, or a re~demption 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 oftown seven north of range seven west, is. sufflcient
where.the names of the township and county are given, and there is only
392




TAXATION AND TAX SALES.                 ~ 308
one town seven of range seven in that township.  Wright v. Dcnham
183 Mich., 414.
3083a. 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,   B. 2."
and E. pt. lot 10, sec. 1.
Detroit Young Men's Society v. Mayor, &c., of Detroit, 3 Mich., 172.
3084. Exemptions. The exemption from taxation of " the real
estate belonging to library, benevolent, charitable and scientific institutions, 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 purposes. Ibid.
30O5. 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 chtirch 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, literary or benevolent purposes, " and was leased to the Sisters of Charity
for thirty years, at a nominal rent, for charitable purposes, and was actually occupied for such purposes. Whether the premises, while held
and occupied under this lease, are exempt from taxation under the statute as "real estate belonging" to the Sisters of Charity, quere; the
Court being divided. Sisters of Charity v. City of Detroit, 9 Mich., 94.
30S7. The compact under which Michigan was admitted into the
Uniont 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 language being clear and unambiguous, must be applied precisely according to its tenor, and cannot be held to mean three years from the location of the land. People v. Auditor-General, 9 Mich., 134..3088. Where lands thus exempt have been taxed, the Auditor-(ienml may:reject the taxes on his own motion, and he may be compeled
to deo so -on the ipplication dc 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 officer. Held, that the presence of a quorum must be presumed; and that although it was proper and desirable that the record
should be signed, it was not necessary. Lacey v. Davis, 4 Mich., 140.
893




~ 31.01         TAXATION AND TAX SALES.
3090: Exeessive 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 df the case,
not distinguishable from the valid part, a sale of premises made for
such taxes was held void. Ibid.
3091. The mere allowance of illegal demands by the Board of Supervisors 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.  Wright v.
Dunham, 13 Mich., 414.
3092. Re-assessment. The Board of Supervisors having authority to re-assess taxes for errors, a re-assessment made by them will
be held good until some error therein is shown.  Tweed v. M.etcalf,
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.
3095. Tax roll. The certificates 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 tothe 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. Davenport, 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
v. Metcalf, 4 Mich., 579.
3098. 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. Davcis, 4 Mich., 140.
3099. The statement of the collector under oath, of the modeys received by him as collector-being required for the purpose of securing
an accurate accounting by him, and having no connection with the return of lands for delinquent taxes-the failure -to makeit -will not invalidate 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. Eliott v. Miller, 8 Mich., 132.
3101. Notice 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 SALES..                8111
oftax sates the particular place at the county seat where thie sales w-ould
take place. A notice whichi stated that the sale would take place at
such public and convenient plae as the counrty treasurer should select
at the county seat, was sufficient., Clark v.- Mo&wyer, 5 Mich., 462; W/sner v. Davenport, 5 Mich., 501..
3I02. And a notice by the county treasurer of the place where the
tax sales would be made, postederat 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 required. Ibid.
3103. Sales. Where under the statute the tax sales were to comn
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 eleventh of October, it
was held incumbent on the parity disputing: the validity of the deed to
show a non-compliance with the statute. Lacey v. Davis, 4 Mich., 140.
3104. There is no limitation by statute of the amount of land that
may be sold from any parcel for the taxes assessed thereon. Sibley v.
Smith, 2 Mich., 486. And where the whole is; sold, no presumption of
fraud can arise from that fact. Tweed v. Metcalf, 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. 263.  Even though not in possession.
Butler:, Porter, 13 Mich., 292.
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; Tweed v. Metcalf, 4 Mich., 579.
3108. But a tax purchaser, before the time of redemption under
his purchase has expired, nmay bid upon the same lands at a tax sole,
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 plathas never been recorded, quere  Johnstone v. Scott, 11 Mich.,
232.
31:10. A sale made after the tax has been paid is void. Rowkhnd v.
D. oty, Er. Ch., 3; Johnaton.e  Scott,.11 Mich.,.232.
3111. -Sale:of undivided interest. Ina contest between one
claiming an undivided -interest' in lands by original -title, and'a purchaser 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. Butler v.
Porter, 13,Mich., 292.
395




~ 3119          TAXATION: AND TAX.SALES.
3112. Deed. The Aiuditor-General cannot convey lands sold for
taxes, without authority by statute therefor. But by the Laws of 18483
in connection with the preceding statutes in:force,., such authority. was
conferred, Sibey v. Smith, 2 Mich., 486.
3113. Under the'Codes of 1827 and 1833, the county treasurer's deed
of lands sold for taxes, was evidence only that the. sale made by him: was
regular. The party claiming under the deed must showthe:regularity
of'the prior proceedings. Rowltand v. Doty,:Har. Ch., 3; Scott v. Dotrout You. g Men's Soiety, 1 Doug., 119; Latimer v. Lovett, 2 Doug.,
204; Ives v. Kimbal, 1 Mich., 308.
8114. Sec 65 of the act of 1843-Laws, 1843, p. 80-which declares
that "the deed shall be primnfacie evidence of the.regularit of all the
proceedings to the date of the deed," changes this rule, and throws the
burden of proof upon the other party. Sibley v. Smith, 2 Mich., 486. See
Amberg e. Rogers, 9 Mich., 332; Groesbeck v. Seetey, 13 Mich., 329;
Wright v. Dunham, 13 Mich., 414.
3115. To obviate the effect of the statute making the deed prima
facie evidence of the 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 explanfation.  Some specdfic defect, theinsufficiency of some particular act, or the non-performanceof some requisite duty, should be shown. Lacey v. Davis, 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 existence of others which would make the proceedings regular.  Wright v.
Dunharm, 13 Mich., 414.
3117. Where, to show that 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 that the Court, in, support of the
deed, must presume such payment. Ibid.
3118. The tax deed need not recite the proceedings prior to the sale.
The recitals need not show more than the capacity in which the officer
acts. Sibley. Smith, 2 Mich, 486.
3119. Auditor-General witholding  deed.  The act of
1843 (S. 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
396




TAXATION AND TAX SALES.                  ~ sit39
Court could not inquire on motion for mandamus.  Peaple. AiitorGenerl, 3 Mich., 427.
3120. Right to surplus moneys. One who had bought lands
at a tax sale, but had 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 received on the last sale,
even though such surplus was deposited in the State treasury, and remained there until he had obtained his deed. People, a. Hanmond, 1
Doug., 276.
3121. Specific taxes.  The statute of 1853 —omp. L., ~ 990is a standing appropriation of one-half the specific taxes collected from
mining companies, to the counties respectively. Peoplte. Auditor- General, 9 Mich., 141.
3122. 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 R. S., Ch. 21, ~5. People v. Detroit and Pontiac Railroad Co., 1 Mich., 458.
3123. Assessments for improvements in cities. An assessment upon a city lot for'the expense of paving the street, is not invalid from the pavinghaving been contracted for before the assessment
was made. LeFevre v. Mayor, &c., of Detroit, 2 Mich., 586.
31'24. 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. Ibid.
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~bid.
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 affecting the substantial rights of individuals are not complied with, the Common Council have no authority to cure the irregularity by resolution. Williambs. Mayor &c., of Detroit, 2 Mich., 5f0.
3127. The determination by the Common Council of Detroit to pave
a street with stone, is sufficiently declared by an order directing a contract for the work to be made. Ibid.
312S. 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.
31299. The Common Council of Detroit were not required by the
act of April 13, 1841 (S. L., p. 192), to permit persons to pave the street
in front of the lots owned or occupied by them, but were merely au897




~ 3139           TAXATION AND TAX SALES.
thorized 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 occupants only in case of special permission to do so from the Council.
Ibid.
3130. lNotice of making the assessment was not required to be given
personally, but was sufficient if published in a city paper as required by
the ordinances.!bid.
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 distinguish 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 invalidate 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 against supervisor. 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,'a's 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 assessment by the competent authorities. When his jurisdiction has been
thus shown, his acts will be presumed regular and valid till the contrary appears. Clark v. Axford, 5 Mich., 182.
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
in 18Q1 and 1862, 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 supervisor, had fixed his compensation at a higher rate. Township of Texas.v. Wager, 12 Mich., 39.
3138. 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 colleefion expenses, and the supervisor
added two and a half per cent., and, in his warrantoer their rcqllection,
898




TENDER.                           38146
directed the treasurer to retain that amount for his fees, a8nd the treasurer retained four per cent., paying over the remainder; it was held
that he was liable to thbe 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 1857 the owner of an undivided interest in
lands in lDetroit may redeem such interest from a sale made of the
whole land, by paying a proportionate amount of the tax, see People v.
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 of eminent domain pointed out. Williams v. Mayor, &c., of Detroit, 2 Mich., 560; Woodbridge 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-fulfillmnent of any other conditions, and no evidence of damages
from any such non-fullfilment, 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. Fiquet v.
Allison, 12 Mich., 8328.
3143. When the crops were ripened plaintiffs -harvested them, but
defendant threshed them, put them in his granary, and refused to recognize any rights of plaintiffs therein. Held that he was liable to
plaintiffs for the value of their. share in assumpsit. -Ibid. S- ee Webb q'.
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 of
the creditor. Thurber v. Jewuett, 3 Mich., 295.
31.~.& A.tender for the purpose of cancelling a judgment should in*tludekboth damages and costs.  A tender of damages with the clerk's
a'ecept for the costs is not sufficient. Ibid.
3146. Where a bill holder presents at one time to a bank for re-.demption, several bills -f the denomination of $5, it is competent for
the bank, under the act of Congress of Feb. 23, 1853, entitled "An act
amendatory of the existing laws relative to the half dollars," &c., to
8990




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
v. Kanouse, 13 Mich., 302. And in a suit on a note given since its passage and expressly by its terms made payable in gold, it is not competent 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.
Buchegger v. Shultz, 13 Mich., 420.
3148. That a tender of the amount of a debt for which property is
held in mortgage discharges the lien, see PuJler v. Parish, 3 Mich., 211;
Moynahan v. Moore, 9 Mich., 9; Caruthers v. 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, which were valid until disapproved
by Congress. Mercer v. Williams, Wal. Ch., 85; -Swan v. Wf/liams, 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
day of the month must govern. Ingersoll v. Kirby, Wal. Ch., 27. See
supra, 678.
3151. Computation of. Where a statute prescribes that a process 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. O'Malley, 1 Doug., 450; Sallee 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. Drake v. Andrews,
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 contract, but the law steps in and requires performance within a reasonable time. Byram v. Gordon, 11 Mich., 531. At to reasonable time, see
further, supra 386 to 388, 401 to 404.
400




TOWNSHIPS.                       ~ 3160
TOWN PLATS.
3154. Public grounds. Where the proprietors of a village or
town plan have dedicated lands for streets, or for a public square, and
sold lots with 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. Comstock, Har. Ch., 404.
3155. The dedication for the purpose claimed must be clearly apparent. Ibid.' See Lee v. Lake, 14 Mich. And see further to the same
effect, People v. Beaubien, 2;Doug., 256; Cook v. Village of Hillsdale, 7
Mich., 115; People v. Jones, 6 Mich., 176.
3156. 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 purchased adjoining lots had no right to insist that it should be kept open
as a public square or common. Sinclair  v. Cormstock, Har. Ch., 404.
3157. A town plat executed and recorded under the statute, vests
the fee of the public grounds in the county. Wanzer v. 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. Liabilities. A township was sued on the following instrument: " The commissioners of highways of the township of R. will
pay the bearer twenty two dollars, when funds in road district number
three and four:" dated, and signed by the commissioners. Held, that the
action could not be sustained.  Monroe v. Township of RIowland, I
Mich., 318.
3159. A township is not liable for interest on damages appraised
for laying out a highway. People v. Township Board of La Grange, 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 commissioners of highways. Commissioners of Highways of Niles 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




3167                    TREATY.
3161. Taxes. Under the Statutes of 1838, townships had authority
to vote to raise money for building bridges upon the report of the highway commissioners. Also to raise money for the destruction of Canada
thistles. Also to raise a sum for contingent expenses generally, without specifying for what particular purposes. Tweed v. Metcalf, 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 townships. Wisner v. Davenport, 5 Mich., 501.
3162. Division of townships: indebtedness.  Where,
after the division of a township, the town boards have met and determined 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. Marathon Township v. Oregon Towhnship, 8 Mich., 372.
3163. Board of health. When the board of health of a township 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 expenses 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 decided by the judicial tribunals of the country. Stockton v. Williams, Wal.
Ch., 120; same case on appeal, 1 Doug., 546. See also, Campau. v. Dewey, 9 Mich., 381. See supra, 1940 to 1943.
-3165. Jay's treaty. The stipulations contained in the treaty of
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. Specht,
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 recognized by it in the nation or tribe with whom it was made. -Maiden v.
Ingersoll, 6 Mich., 373.
3167. Construction. A treaty with Indian tribes, after reciting
that they felt a strong consideration for aid rendered by certain of their
402




TRESPASS TO LANDS.                    ~ 3172
half breeds, and that, wishing.to testify their gratitude, they. had assigned 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 quarter:s,.to his Indian family, at.Cheboygan Rapids, at $4an acre,"
&c. Held, that the money was given to Drew absolutely, and not in
trust for his Indian family. Cook v. Biddle, 2 Mich., 269.
316S. The Court cannot, from a construction of the Treaty of Saginaw of Sept. 24, 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.  Campau 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 records 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. Ibid.
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 possession, 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 possessory 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 therefore not a defense to the action that defendant had disseized the plaintiff, though it may prevent treble damages. Acly v. Hzull, 7 Mich.,
423.
403




~ 3178             TRUSTS AND TRUSTEES.
TRUSTS AND TRUSTEES.
3173. What constitutes. County commissioners, authorized to
take a mortgage to the county, but taking it to themselves, hold it as
trustees for the county.'Rood v. Winslow, 2 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
but 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 procured 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., 172. 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 property in indemnifying the assignors when the State refuses to perform
the condition, see Michigan State Bank v. Hammond, 1 Doug., 527.
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 v. King, liar. Ch., 12.
3177. Resulting trust. A resulting trust only exists where the
actual payment 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., 12. Resulting trusts in such cases, except in behalf of creditors, have since been
abolished by statute. Comp. L., ~~ 26837, 2638.
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. Trask v. Green, 9 Mich.,
858; Maynard v. Ho8kins, 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.                   f 3184
and the purchaser at the execution sale may recover possession in ejectment. Cleland v. Taylor, 3 Mich., 201.
3179. What does not create a trust. 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 grantors;-the deed not being executed by the grantee-does not create an
irrevocable trust, and vests no estate in the children. And it was accordingly held, that after reconveyance by the grantee to the grantors,
they might dispose of the fee. Lewis v. Ndeon, 4 Mich., 630.
31S0. 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.
3181. Dealings of trustee with cestul que trust. A
trustee is not allowed to deal with his cestui que trust as with a third
person; and purchases of trust property made by him will not be sustained, unless the Court is satisfied that he has acted throughout with
the most perfect fairness, and taken no advantage of his peculiar position. Schwarz v. 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.
3182. The agreements of the husband of a cestui que trust with the
trustee are not binding upon the wife. Ibid.
31S3. 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. Griggs v. Detroit and ]MilZwaukee RailWzay Co.,
10 Mich., 117.
31S4. 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 arrangements with the mortgagees by which he can be subrogated in
equity to their rights without paying the other demands. Smith v. Austin, 11 Mich., 34.
405




~ 3190          UNIVERSITY OF MICHIGAN.
UNIVERSITY OF MICHIGAN.
3185. 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, 1821, (Code of
1827, p. 448). Regents of the University v. Board of Education of Detroit, 4 Mich., 213.
3186. Grant 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.
31S7. Power of Regents to hold lands. The Regents
of the University have power to take, hold and convey real estate, for
any purpose tending to promote the interests of the University, to increase its funds, or otherwise to further the great public objects for
which the corporation was created. Regents of the University v. Detroit
Young Men's Society, 12 Mich., 138.
3188. 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 he 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 mandamus 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
where 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 acquainted with the usage. Kermott v. Ayer, 11
Mich., 181.
406




USURY.                       ~ 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 Parliament, &c.; from which date until March 1, 1847, when the Revised
Statutes of 1846 took effect, no statute involving the principle of the
Statute of Uses was in force here.   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. Ready v. Kearsley,
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. Cbh.,
529, 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 v. 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 and
Mechanics' Bank v. Kimmel, 1 Mich., 84; Sellers v. Botsford, 11 Mich., 59.
3195. Evidence. Where a contract with a corporation on its
face imports a reservation of interest, in excess of what its charter allows, 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 charter; but this must be clearly established. Orr v. Lacey, 2 Doug., 230.
For a case where the facts were held to prove usury, see Caruthers v.
Humphrey, 12 Mich, 270.
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. Smith v.
Stoddard, 10 Mich., 148.
3197. New  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 secuirity a sum is included for unlawful un407




~ 3205          VENDOR AND PURCHASER.
paid interest, the security, to the extent of the unlawful interest, is
without consideration. Smith v. Stoddacrd, 10. Mich., 148. So if a sum
is included for statutory damages when the statute allows none. Collins
iron Co. v. Burkham, 10 Mich., 283.
3199. Foreign contract. Where 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. Collins Iron Co. v. Burkhanm, 10 Mich., 283.
3200. The provisions of the Ohio statute for the recovery or appropriation of usury paid upon a contract, form no part of the contract, bit
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. Board of Supervisors of St. Joseph v. Coffenbury, 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 payment rendered them so far his
debts as to satisfy the averment in the declaration. Ives v. Kimball, 1
Mich., 308.
VENDOR AND PURCHASER.
3203. What is a sale. Where property is taken at a fixed
money price, the transaction is a sale, whether the price is paid in
money or in goods. Picard v. McCormick, 11 Mich., 68.
3204. Sale of chattels: delivery. The sale of a chattel,
where the consideration is actually paid, is valid without actual delivery, or even if the chattel at the time is lost or withheld from the vendor 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.                    ~ 3211
prison, had a watch worth $125 stolen, which, not being found after
diligent search, he offeredl to sell at $25. The agent of the State prison
and one of the guards accepted the offer, and paid the $25. It was held
that the purchase was not void for want of delivery, nor as against public policy because made by such officers. Ibid.
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 plaintiff, 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.
2. That the order upon F. was an undertaking on the part of defendant 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. Dacon, 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. Farnmers and Mechanics' Bank, 1 Doug., 105, and Vinton v.
Peck, 14 Mich.
3208. 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. Fleming v. Mills, 5 Mich., 420.
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 12, 1853, exempting lands donated 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 Goff v. Thompson, Har. Ch., 60;
Cicotte 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




~ 8218                    WAGER.
fact, he must be presumed to have knowledge of that fact, see Mason v.
Payne, Wal. Ch., 459; Norris v. Hill, 1 Mich., 202; and is chargeable
with all reasonable inferences therefrom. Fitzhugh v. Barnard, 12
Mich., 104.
3212. Purchase 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. Vendor9s lien. The vendor of real estate has an equitable lien upon it for the purchase money, where no security for the payment has been taken by him. Carroll v. Van Rensedaer, Har. Ch., 225;
Payne v. Atterbury, Har. Ch., 414; PaZmer et al., appellants, I Doug.,
422; Sears v. Smith, 2 Mich., 243; Mowrey v. Vandling, 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 vendee-as the note or other obligation of a third person, or the obligation
of the vendee with sureties-the lien is gone. Palmner et al., appellants,
1 Doug., 422; Sears v. Smith, 2 Mich., 243. An administrator who receives such obligation on a sale of lands belonging to the estate, is personally liable to the estate for the amount if not collected. 1 Doug., 422.
3215. Lien of vendeer. 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. Vendor becoming purchaser. Noone without express authority of law can become purchaser of property which it is his
duty to sell for the highest price he can obtain. Ames v. Port Huron
Log Driving and Booming Co., 11 Mich., 1839. See also, Moore v. Mandlebaum, 8 Mich., 433; Dwight v. Blackmar, 2 Mich., 330; Beaubien v.
Poupard, Har. Ch., 206; Clute v. Barron, 2 Mich., 192; People v. Township Board of Overyssed, 11 Mich., 222.
WAGER.
3217. Recovery of stakeholder. If the loser of money, deposited 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 the winner. Suit under the statuteComp. 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.                      ~ 3225
their negotiable notes for the amount, instead of money. When the
result was determined, the stakeholder delivered the notes to the winner-the defendant-who afterwards sold plaintiff's note at a discount.
Plaintiff 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 evidence of its payment by plaintiff to authorize him to maintain the statutory action. Bucldey v. Saxe, 10 Mich., 328.
WAIVER.
3219. A waiver of a legal right is not to be implied from slight circumstances. Bird v. Hamilton, Wal. Ch., 361.
3220. A Joint promissor has no power to waive the performance 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 maintaining a suit for a fund, in his representative capacity, by borrowing a
part of it in his individual capacity, and executing his bond and mortgage therefor. Cullen v. O'Hara, 4 Mich., 132.
3222. Diversion of water. Where complainant had stood by,
without objecting, and allowed defendant to go on and expend a considerable 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 purchased, 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. Farrar, 3 Mich., 436.
3224. In legal proceedings. By going to trial without objection, a party waives any he might have to the want of proper qualification of jurors. Owners of Ship Milwaukee v. Hale, 1 Doug., 306.
3225. A nonsuit was set aside on condition of payment of costs by
the plaintiff. Afterwards defendants stipulated in writing, uncondition411




~ 3233                   WARRANTY.
ally, to try the cause on a certain-day. Held to be a waiver of the prior
payment of costs. Higley v. Lant, 3 Mich., 612.
3226. A plea in bar is a waiver of an objection to the jurisdiction of
a Court of general jurisdiction. Webb v. Mann, 3 Mich.; 139.
3227. Where a witness is excluded on objection, but afterwards, the
Court doubting the correctness of its ruling, offers to open the question
and hear further argument, which the counsel declines, the objection
will be considered waived. McBride 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. Berooks v. Mead, Wal. Ch., 389.
3229. By appearing and going to trial in an attachment suit, defendant waives all prior irregularities. Crane v. Hardy, 1 Mich., 56.
See further, Vacnderhoof v. Dean, 1 Mich., 163; Stewart v. Hill, 1 Mich.,
265; Shaw v. Moser, 3 Mich., 71; Durfee v. McClurg, 5 Mich., 532; Sallee v. Ireland, 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 Fitch v. Newberry, 1
Doug., 1.
3231. A railroad company which has entered into a contract to deliver 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. warehousemen merely. Moore v. Michigan Central R. R. Co., 3 Mich., 23.
WARRANT OF ATTORNEY.
3232. The practice of giving or filing Warrants of attorney, authorizing 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
plaintiff 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 forit, 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 condition 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 had the right to flow, is a good defense to an
action for flowing lands. Millard v. Reeves, 1 Mich., 107.
3235. 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
Ypsilanti, 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 the top of
said aperture, for the use of carrying machinery for iron works, provided 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 iereafter 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 sufficient quantity of ore cannot conveniently
be procured for carrying on' said iron works to advantage, the said two
feet square of water may be used for such other machinery as the said
party of the second part shall think fit and proper."  Held, that construing 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 below 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 mentioned, into open space, or directly upon the wheel where it was applied. Norris v. Showerman, 2 Doug., 16, affirming same case, Wal. Ch.,
206.
113




~ 3243                      WAYS.
WAYS.
3236. Classification. All ways are either public or private;
there is no intermediate species of way for any purpose of passage. Tillman 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 entitled to use it, unless it be dedicated to their use.  Ward v. Warner, 8
Mich., 508.
323S. City streets; obstructions. The Common 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 Commissioners of Internal Improvement for the use of the State, for the purposes 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. Rights 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 individual, who had legally dedicated the streets and alleys. Cooper v. Alden, Har. Ch., 72.
3241. On the application of purchasers who are interested in thl
Reservation 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. Ibid.
3242. When 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 obstruction not authorized by the Governor and Judges, or by the Common
Council. People v. Carpenter, 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 highway, such dedication, if properly accepted, will make the land dedicat414




WAYS.                        ~ 3250
ed a public highway, without reference to any particular period of
time. People v. Jones, 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 together. One act may be explained or qualified by.another.  Ibid. And
see Cook v. Vilage of HMlsdale, 7 Mich., 115; People v. Beauien, 2
Doug., 256; -Lee v. Lake, 14 Mich.
3245. A dedication cannot be made out without -an intent to dedicate, clearly manifested. Ibid.
3246. It is essential to a dedication that it be accepted by the public. 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; Tillmatn v. People, 12 Mich., 401; People v. Beaubien, 2
Doug., 256. An indictment against the proprietor for obstructing
a street is not of itself a sufficient acceptance. 2 Doug., 256,
3247. Governor 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.
3248. 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 projected, 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 portion of the projected street outside of the
lines of the street so opened. People v. 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 dedication, 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




~ 3268                       WAYS.
the plat, and refering to it as of record, will not supply the want of acknowledgment of the plat. Ibid.
3251. But the making and recording of the plat, and the conveyances, 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 publie 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 intention to give it. Cook v. Village of Hillsdale, 7 Mich., 115.
3253. Constitutional protection. The constitutional provision 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 dedication is presumed by law. Bumpus v. Miller, 4 Mich., 159.
3254. Roads by user. The Statute-R. S. of 1846, Ch. 25, ~
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 afterwards. 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 having existed only twelve years-will not take away the right of the public 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 will 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 affect
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 affect only the rights of an individual, or of a definite number of persons, less than the whole, in their individual capacity, no indictment lies. People v. Jackson, 7 Mich., 432. See Tillman v. Peaple, 12
Mich., 401.
325S. 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 v. Jackson,
7 Mich., 432.
416




WAYS.                         ~ 3264
3259. 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 affect 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 9f the city, to be regulated by ordinances and by laws;
but in neither case would it be the proper subject of an indictment.
Ibid.
3260. A  cul de sac, fifty feet ip 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 obstruction of which an indictment will lie. Ibid.
3261. The parties interested in the adjacent lots would have a right
to close such a cul de sac, or to regulate its use as to them should seem
proper, 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 authorities accepting it, and the owners have been allowed to keep a large
portion of it closed, and to erect valuable buildings upon it. Tillman v.
People, 12 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 buildings were removed. Ibid.
3263. Regulation by city by-laws.  Until an alley in the
city of Detroit has been actually open to the uses for which it was designed, 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 obstructioins from them, the city charter contemplates the
preservation of actual, and not theoretical easements, and the protection of the community against actual nuisances, which interfere with
the accustomed use of the passages. Jackson v. People, 9 Mich., 111.
3264. Laying 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 notice 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 township 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
Scio, 3 Mich., 121.
3265. Under said statutes, a township board had no power to review the proceedings of the commissioners in laying out and establishing a road, except on appeal; nor to review the proceedings of the appraisers, except to see that they were not void for want of jurisdiction.
People v. Township Board of La Grange, 2 Mich., 187.
3266.. Section two of Ch. 25 of said Statutes, made it the duty of the
township clerk, on receiving an order from the commissioners of highways 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 township 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. Ibid.
3267. Commissioners must lay out whole 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 Springwdlls, 12 Mich., 434.
326S. Who 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. Ibid.
3269. New  application.  Under the statute of 1861, p. 256,
the commissioners of highways have no power to entertain a second application for laying out the same road within one year from the first.
People v. -Township Board of Springwells, 13 Mich., 462.
3270. Compensation for land taken. A township is not
liable for interest on damages appraised for laying out a highway. People v. Township Board of La Grange, 2 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 assessed the damages; and their finding was filed in the town clerk's office,
Tbut 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.                        g 3278
relator, on the ground that the justice had failed to certify the finding.
People v. Township Board of Lowell, 9 Mich., 144.
3272. There was no law in Michigan in 1857 under which a highway could be legally laid out through condemnation of the land to be
taken therefor. And therefore township authorities cannot refuse to
make payment 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.
Kimball, 4 Mich., 95.
3273. Where a highway was laid out through the lands of an individual in 1860, and his damages were appraised, and an order on the
township treasurer tendered for the amount, which order was payable
4' to the owner or occupant, or to the person entitled thereto, for the
land so taken," it was held that the order was"insufficient,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. Lull v. Curry, 10 Mich., 397.
3274. Legislative control. The Legislature may authorize a
plank road company to take possession of a highway for the purposes of
their road. Detroit and Howell Plank Road Co. v. Fisher, 4 Mlich., 37.
3275. Highway funds. The highway commissioners of a township 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 fund, by misappropriation or otherwise, the mandamus was denied.  People v. Township Board of Zilwauhkie, 10 Mich.,
274.
WILL.
3276. What essential to validity. A will is not valid unless
the testator not only intends, of his own free will, to make such disposition, 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 he revokes.
Beaubien v. Cicotte, 12 Mich., 459.
32'77. 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. Rue High, appellant, 2 Doug, 515.
327S. By wihat law 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 sa:me is situate. Ibid.
419




~ 3286                       WILLS.
3279. Under Statutes' of 1838. R. S. of 1838, p. 270, ~ 4, was
merely declaratory of the right which every person had, at the common
law, to dispose of his personal property by will. Ibid.
3280. Section five, same page, as to the mode of execution, as
amended by S. L., 1839, p. 220, ~ 14, which required willsto be attested
by three or more witnesses, applied only to wills executed within the
State. As to wills executed abroad byj persons domiciled here, the common law prevailed. Ibid.
3281. By the common law, it was not essential to the validity of a
will that it should be attested by witnesses.  Accordingly, it was held,
that a will of personal property, executed abroad, by a persobn who
died there,' but whose domicil was, at the time, in Michigan, was valid
though not attested by three witnesses. Ibid..3252. Construction. The general words in a will may be restrained in their meaning, or rejected entirely, to carry out the intention of the testator. So general words may be construed by the particular words which follow. Jamneson et. al., appellants, 1 Mich., 99.
3283. A will, after devising the real estate of thetestator, contained
the following clause:'"It is my will 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 separate 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
met beloved wife Elizabeth, for her sole use and behoof. "  Held, that a
clain- 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 Shlelly'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 thereon; 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 1827, p.
261; see Comp. L., ~ 2587-was changed into a fee simple. Fraser v.
Chene, 2 Mich., 81. The rule in Shelly's case is now abolished in this
State by statute. Comp. L., ~ 2612.
3285. Restraints upon alienation.  Provisions in restraint
of alienation are not to be favored.  Walton v. Torrey, Har. Ch., 259.
32S6. 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




WILLES                        ~ 3292
3287. Where a will provided that each disposal of real estate made
by it should only be fbr 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 create 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. Rivard, 2 Mich., 294.
3288. 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.
32S9. Cy pres. The cy pres doctrine cannot be applied in support 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 construed to vest an estate for life only in such first taker, and a remainder
in fee simple in his heirs." See Comp. L., ~ 2612. 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. Power in trust,  A testator by his will directed his executors or administrators to sell his real estate to the best advantages
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.
Battelle v. Parks, 2 Mich., 531.
3292. Probate. The averments on the part of the propounder
of a will should include everything necessary to constitute it avalid will
under the statute, so that a verdict finding the truth of those averments, without more, would bring the will within all the express requirements of the itatute. He must therefore aver the soundness of.421




3298                     }WILLS.
mind of the testator at the time the will was executed. Beaubien vCicotte, 8 Mich., 9.
3293. Who may contest. Where the will of a father appoints 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 validity, and to appeal from an order admitting it to probate. Taft v. Hosmer, 14 Mich.
3294. Practice in 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 competency 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
fuilly open to affirmative proofs on their part after the contestants have
put in their evidence. Taff v. Homs r, 14 Mich., (second case).
3295. Evidence on probadte. 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. Beaebien a. (icotte, 8 Mich., 9.
3296. Where a subscribing witness to a will 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; Held, that questions to him whether, looking at the attestation
clause, he had any doubt she signed it in his 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 naroes.
were to it were present at the time of its execution, were not incompetent, and it was for the pjry to give such weight to his evidence in
answer thereto as they might think it entitled to under al the circumstances of the case. Lawyer v. Smith, 8 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 testatrix, 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 declarations of the testatrix, made after the date of the will, that she had destroyed it, are competent evidence. Ibid.
3298. Bequests to religious societies. The last clause of
~ 25 of the Act concerning Churches and Religious Societies-Comp.
L., ~ 2033-which makes void certain bequests to the amount of $10Q
422




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 religious 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 affairs are concerned; and do not embrace foreign corporations or associations.  Matter of the Ticknor 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.
1 bid.
3301. Bequest to unincorporated association. A bequest of money generally, and not upon permanent uses, to an unincorporated association capable of clear identity, is valid. Ibid.
WITNESS.
3302. A verdict of guilty on a charge of perjury, did not, at the
common law, without judgment, render the defendant infamous,, so as
preclude his being a competent witness. Smith v. Brown, 2 Mich., 161.
3303. Defendant, after filing a sworn answer in chancery, was indicted and tried for perjury contained in it, and verdict of guilty rendered. 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 verdict 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 C~rippen v. People, 8 Mich., 117.
MAXIMS OF THIE LAW.
Following are a few familiar legal maxims, with a reference to decisions illustrative of them, reported in the Michigan Reports.
423




~ 3309             MAXIMS OF THE LAW.
3305. Res inter allos. 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., 381.
(Adjudications to which the claimant was not a party.)
Dawson v. Hall, 2 Mich., 390.
Glover v. Alcott, 11 Mich., 470.
Benedict v. Denton, Wal. Ch., 336.
Horner 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., 81.
Dutton v. Ives, 5 Mich., 515.
Nichols v. Lee, 10 Mich., 526.
Millerd v. Reeves, 1 Mich., 107.
Converse v. Blumrick, 14 Mich.
(Assignment by one party not to affect rights of another.)
3306. Argumentum  ab  inconvenienti.  An argument
drawn from inconvenience is forcible in law.
Emerson v. Atwater, ~7 Mich., 12.
Clark v. Mowyer, 5 Mich., 462.
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., 8372.
Van Kleek v. Eggleston, 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, I 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., 281.
Bennett v. Nichols, 12 Mich., 22.
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.
Burnham v. People, 3 Mich., 195.
424




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. Betts, 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 v. 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., 329.
Leavitt v. Leavitt, 13 Mich., 452.
(Honesty rather than fraud.)
Benedict v. Denton, Wal. Ch., 336.
(Seal of corporation presumed properly affixed.)
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., 117.
Stewart v. Hill, 1 Mich., 265.
Crane v.' Hardy, 1 Mich,, 56.
Vanderhoof v. Dean, 1 Mich., 463.
Webb v. Mann, 3 Mich., 139.
Shaw v. Moser, 3 Mich., 71.
Wells v. Scott, 4 Mich., 347.
McBride v. Cicotte, 4 Mich., 478.
Durfee v. McClurg, 5 Mich., 532.
Tower v. Lamb, 6 Mich., 362.
425




~ 883317           MAXIMS OF THE LAW.
Johnstone v. Scotft 11 Mich., 232.
Brown v. Bissell, 1; Doug., 273.
Owners of Ship Milwaukee v. Hale, 1 Doug., 306.
Higley v. Lant, 3 Mich., 612.
Higgins v. Carpenter, Har. Ch., 256.
Brooks v. Mead, Wal. Ch., 389.
(Waiver in judicial proceedings.)
Newberry v. Trowbridge, 13 Mich., 263.
(Payment by iLdorser 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. Nemo est haeres viventis. No one can be heir during
the life of his ancestor.
Ready v. Kearsley, 14 Mich.
(Deed to one named, " or his heirs," held good.)
3314. Actions based on illegal transactions.  A right
of action cannot arise from the party's own wrong.
Adams v. H;amel, 2 Doug., 73.
Byrne v. Beeson, 1 Doug., 179.
Bank of Michigan v. Niles, -1 Mich., 401, and Wal. Ch., 99.
Orr v. Lacey, 2 Doug., 230.
Wells v. River Raisin and Grand River R. R. Co., Wal. Ch., 35.
(Illegal contracts.)
Bagg v. Jerome, 7 Mich., 145.
(Illegal contract performed.)
3315. Nudum pactumr. 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. Felch, 7 Mich., 371.
Colman v. Post, 10 Mich., 422
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 Nich., 202..
Niagara Fire Insurance Co. v. De Graff, 12 Mich., 124.
3317. IRespondeat superior. Let the principal be held responsible.
426




MAXIMS OF THE LAW.                    ~ 8324
De Forest v. Wright, 2 Mich., 368.
Moore v. Sanborne, 2 Mich., 519.
City of Detroit v. Corey, 9 MiCh., 165.
Michigan Central R.. R. Co. v. Leahey, 10 Mich., 199.
331S. 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 4Iessee, 1 Doug., 119.
3319. Land ownership. He who possesses the soil, possesses
also that which is above it.
Lorman v. Benson, 8 Mich., 18.
Rice v. Ruddiman, 10 Mich., 125.
3320. Fictions of law. 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.
(Ratification cannot avail when judgmefit 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 sonans. The name is the same where the pronunciation is the same.
People v. Mayworm, 5 Mich., 146.
People v. Tisdale, 1 Doug., 59.
3322. Construction of instruments. The words of an instrument shall be taken most strongly against the party employing
them.
Cicotte v. Gagnier, 2 Mich., 881.
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, 3 Mich., 439.
Holmes v. Hall, 8 Mich., 66.
Erwin v. Clark, 13 Mich., 10.
Schwarz v. Wendell, Wal. Ch., 267.
Barstow v. Smith, Wal. Ch., 394.
Bidwell v. Whittaker, 1 Mich., 469.
3325. That is certain which is capable 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 inoperative.
Johnstone v. Scott, 11 Mich., 232.
Anderson v. Baughman, 7 Mich., 69.
Cooper v. Bigley, 13 Mich., 463.
332S. 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 2 Doug., 16.
Ives v. Kimball, 1 Mich., 308.
Facey v. Otis, 11 Mich., 213.
Bronson v. Green, Wal. Ch., 56.
Norris v. Hill, Wal. Ch., 302.
3329. Mortgages. Once a mortgage always a mortgage.
Batty v. Snook, 5 Mich., 231.
Thompson v. Mack, Har. Ch., 150.
Comstock v. Howard, Wal. Ch., 110.
Thurston v. Prentiss, 1 Mich., 193.
3330. Vigilance.  The, laws assist those who are vigilant, not
those who sleep over their rights.
Whipple v. Farrar, 3 Mich., 436.
Graydon v. Church, 7 Mich., 36.
(Account of profits refused to one who had been remiss in perfecting 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, 12 Mich., 267.
Wixom v. Davis, Wal. Ch., 15.
(Relief refused after judgment.)
Carne v. Hall, 7 Mich., 159.
Lathrop v. Hicks, 2 Doug., 223.
Matter of Lantis, 9 Mich., 324.
Johnson v. Johnson, Wal. Ch., 309.
Thayer v. Swift, Wal. Ch., 384.
Spafford v. Beach, 2 Doug., 150.
People v. Judges of Calhoun Circuit Court, 1 Doug., 417.
(Relief refused on ground of laches.)
3331. Innocence.  Every man is presumed  innocent until
proved guilty.
Maher v. People, 10 Mich., 212.
People v. Getchell, 6 Mich., 496.
Durant v. People, 13 Mich., 351.
3332. Evidence. No man is to be compelled to criminate himself.
People v. Thomas, 9 Mich., 314.
Carne v. Litchfield, 2 Mich., 340.
3333. The best evidence of which the nature of the case admits must
be produced.
Jones v. Phelps, 5 Mich., 218.
(Suit brought before subscribing witness.)
Higgins v. Watson, 1 Mich., 428.
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, 2 Mich., 213.
(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.
429




~ 3337              MAXIMS OF THE LAW.
Thompson v. Richards, 14 Mich.
(Proof of conveyance by parol evidence.)
Moore v. People, 2 Deug., 420.
Platt v. Stewart, 10 Mich., 260.
Angell v. Rosenbury, 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, 3 Mich., 252.
Ortman v. Greenman, 4 Mich., 291.
People v. Rix, 6 Mich., 144.
3335. Audi alteram  partem. No man should be condemned
unheard.
Buck v. Sherman, 2 Doug. 176.
Ames v. Port Huron Log Driving and Booming Co., 11 Mich., 139.
Palmer v. Oakley, 2 Doug., 433.
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 affirmed where only nominal damages involved.)
430




A TAB LE
OF TIHE
REPORTED CASES
CONTAINED IN THIS DIGEST.
The following table contains all the cases reported in the several volumes of Michigan decisions hitherto issued, together with some of the
most important now decided and to be reported in 14th Michigan Reports.
Under the proper title of each case will be found a reference to the
sections of this work where thle 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 overruled 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, 2356; Payment, 2497.
JAdams, Matter of, 7 iich., 452.
Comity between States, 548.




2                      TABLE OF CASES.
Adams v. Bradley, 12 Mich., 346,
Deed, 1026; Equity, 1161, 1262, 1274, 1357.
Adams v. IHamell, 2 Doug., 73.
Contracts, 680.
Cited, 12 Mich., 379.
Adwards, People v.
/Etna Insurance Co., Van Blarcom v.
Agent of State Prison v. Lathrop, 1 Mich., 438.
Agent of State Prison, 96; Pleadings, 2573.
Albany City Bank v. Dorr, Wal. Ch., 317.
Equity, 1196,. 1205, 1323.
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., 321; Criminal Law, 834, 837 to 839, 929.
Cited, 10 Mich., 310.
Alderton v. Buchoz, 3 Mich., 322.
Frauds, Statute of, 1908.
Aldrich v. Maitland, 4 Mich., 205.
Judgments, 2100, 2101; Justices CouYts, 2157, 2158.
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., 542.
Damages, 961 to 969.
Allison, Chandler v.
Allison, Fiquet v.
Amberg v. Rogers, 9 Mich., 332.
Taxation, 3081, 3082, 3114.
(Citedl, 13 Mich,, 416.
Armboy Lansing and Traverse Bay Railroad Co. v. Byerly, 13 Mich.,
439.
Practice in Circuit Courts, 2699, 2700.
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., 257; 7 Mich., 240, Affirmed by Supreme Court of U.
S., 24 How., 1.
Ames v, Port Huron Log Driving and Booming Co., 6 Mich,, 266.
Constitutional Law, 611; Log Driving and Booming Co,'s, 2236 to
2239.
Cited, 11 Mich., 146, 155; 13 Mich., 499,
Ames v, Port Huron Log Driving and Booming Co., 11 Mich., 139.
Constitutional Law, 611, 622, 623, 625; Principal and Agent, 2827.
Amperse v. Bordeno, 14 Mich.
Husbandand Wife,.2012.
Anderson v. Baughman, 6 Mich., 298.
Practice in Supreme Court, 2799,
Anderson v. Baughman, 7 Mich., 69.
Deed, 1003 to 1005.
Cited, 13 Mich., 477.




TABLE OF CASES.                            3
Anderson v, Birce, 3 Mich., 280.
Certiorari, 532.
Anderson, Logan v.
Anderson, Trudo v,
Andrews, Drake v,
Andrews v. Kibbee, 12 Mich., 94.;.
Equity, 1260, 1261, 1317, 1321, 1322.
Andrews, Kibbee v.
Angell v, Rosenbury, 12 Mich., 241,
Assignment, 217, 227, 232, 233, 234, 252; Error, 1555; Evidence,
1674, 1785; Practice in Circuit Courts, 2693.
Angell, Rosenbury v.
Ankrim v. Woodworth, Har. Ch., 355,
Equity, 1110.
Annis v. People, 13 Mich., 511.
Criminal Law, 905, 906, 932, 934, 935  Evidence, 1688, 163;),
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; Statutes, 8048.
Attorney-General v. Detroit and Erin Plank Road Co,, 2 Mich,, 138.
Plank Road Companies, 2508; Statutes, 3050.
Cited, 12 Mich., 336,
Attorney-General v. Michigan State Bank, 2 Doug., 359.
Pleadings, 2532; Quo Warranto, 2889, 2890.
Attorney-General v. Oakland County Bank, Wal. Ch., 90.
Banks and Banking, 341, 350, 354; Corporations, 719, 720;. 747
Equity, 1251, 1341, 1343, 1408, 1412, 1413.
Cited, 2 Mich., 147; 12 Mich., 71; Wal. Ch., 295.
Attorney-General v. Supervisors of St. Clair, 11 Mich., 63.
Counties, 761.
Atwater, Emerson v.
Atwater v. Kinman, Har. Ch., 243.
Equity, 1283; Mortgage of Lands, 2362.
Atwater v. Streets, 1 Doug., 455.
Bills and Notes, 416.
Atwood v. Gillett, 2 Doug., 206.
Evidence, 1773; Partnership, 2480, 2488.
Cited, 3 Mich., 226.
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, 2322.
Austin, Smith v.
Austin v. Strong, 1 Mich., 259.
Appeal from Justices' Court, 164, 167.
Avery v. Payne, 12 Mich., 540.
Equity, 1182, 1183, 1511.
Avery, Payne v.
Axford, Clark v.
28




4                     TABLE OF CASES.
Ayer, Kermott v.
Bachelor v. Nelson, Wal. Ch., 449.
Equity, 1465,,1483, 1484.
Backus v. Byron, 4 IMich., 535.
Attorneys, &c., 313.
Bacon, Morse v.
Bacon v. County of Wayne, 1 Mich., 461.
Attorneys, &c., 312.
Bacon v. Kimmel, 14Mich.
Judgments, 20855;:Mortgage of Chattels, 2284.
Bagg v. Cityof Detroit, 5 Mich., 66.
Questions Reserved, 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 Graff, 2 Doug., 169.
Appeal from Chancery, 144.
Bailey v. Gould, Wal. Ch., 478.
Equity, 1498:; -Mortgage of Lands, 2345, 2354; 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, W —.al. Ch., 424.
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,
2341.
Cited, 9 Mich., 223;:13 Mich., 36.
Baker v. Pierson, 6 Mich.,:522.
Mortgage ofLands, 2388,
Cited, 13 Mich., 478.
Baldwin v. Buckland, 11 Mich., 389.
Assignment, 225, 232, 234, 235.
Baldy, Beecher v.
Bancroft v.?eters, 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, Banik 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, 1378, 1374, 1376, 1377.




TABLE OF CASES.                           5
Bank of Michigan v. Niles, 1 Doug., 401.
Contracts, 683;Corporations, 721; Specific Performance, 3013.
Bank of Michigan, Wales v.
Bank of Michigan v. Williams, Har. Ch., 219.
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 v. Taylor, 1 Mich., 352.
Justices Courts, 2152.
Cited, 8 Mich., 429.
Barkham, Parks v.
Barman v. Carhartt, 10 Mich., 338.
Evidence, 1826; Guaranty, 1958; Practice in Circuit Courts, 2749.
Barnard, Fitzhugh v.
Barnard v. Hinkley, 10 Mich., 458..
Action, 22.
Barnard v. Lapeer and Port Huron Plank Road Co., 6 Mich., 274.
Partnership, 2455 to 2458.
Barnes v. Baker, 2 Mich., 377.
Guaranty, 1953 to 1955.
Barnes, Kellogg v.
Barnes, Root v.
Barnum v. Bank of Pontiac, Hnr, Ch., 116.
Banks and Banking, 351, 352, 358 to 360.
Barr, Coatsworth v.
Barron, Clute v.
Barrows v Baughman, 9 Mich., 213.
Equity, 1242, 1250, 1474; Mechanic's Lien, 2266; Recording Laws,
2923.
Cited, 10 Mich., 495; 13 Mich., 372.
Barrows v. Doty, Har. Ch., 1.
Equity, 1108.
Cited, Har. Ch., 368.
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., 28.
Equity, 1498; Evidence, 1651, 1652; Recording Laws, 2925.
Basto, Safford v.
Bates, Delevan v.
Bates v. Garrison, Har. Ch., 221.
Equity, 1499
Bates, People v.
Battelle v. Parks, 2 Mich., 531.
Wills, 3291.
Batty_ v. Snook, 5 Mich., 231.
Mortgage of Lands, 2313, 2336, 2337.
Baughman, Anderson v.
Baughman, Barrows v.
Baxter v. Robinson, 11 Mich., 520
Estates of Deceased Persons, 1597, 1593.




TABLE OF CASES.
Beach v. Botsford, 1 Doug., 199.
Jurisdiction, 2136; Justices' Courts, 2160, 2174; Officer, 2433,
2434.
Cited, 1 Mich., 22,160, 491, 13 Mich., 509.
Beach v. People, 11 Mich., 106.
Criminal Law, 881, 882.
Beach, Spafford v.
Beach v. White, Wal. Ch., 495.
Equity, 1190, 1191, 1194, 1200, 1259; Fraud, &c., 1880; Husband and
Wife, 2027, 2028.
Cited, 6 Mich., 466.
Beard v. Port Huron Log Driving and Booming Co., 11 Mich., 155.
lN ote to Ames v. Same Def't.
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, 2073; Payment,
2501.
Cited, 8 Mich., 449; 13 Mich., 112.
Beaubien v. Cicotte, 8 Mich., 9.
Evidence, 1838; Wills, 3292, 3295.
Cited, 8 Mich., 318.
Beaubien v. Cicotte, 12 Mich., 459.
Error, 1542; Evidence, 1635, 1676, 1684, 1690, 1691, 1697, 1728,
1730 to 1734, 1741 to 1745; Wills, 3276.
Beaubien, People v.
Beaubien v. Poupard, Har. Ch., 206.
Estates of Deceased Persons, 1601, 1603.
Cited, 2 Mich., 333; 11 Mich., 226.
Beckwith, Lockwood v.
Beecher v. Bady, 7 Mich., 488.
Homestead, 1988 to 1992, 1999.
Cited, 8 Mich., 55; 9 Mich., 528; 10 Mich., 297, 540.
Beebee v. Young, 13 Mich., 221.
Appeal from Chancery, 129, 136.
Beers, Falkner v.
Beeson, Byrne v.
Beeson v. Hollister, 11 Mich., 193.
Practice in Circuit Courts, 2703, 2733.
Belden v. Laing, 8 Mich., 500.
Pleadings, 2566, 2567; Replevin, 2947, 2949.
Benedict v. Denton, Wal. Ch., 336.
Corporations, 724; Evidence, 1718.
Benedict v. Thompson, Wal. Ch., 446.
Equity, 1514.
Benedict v. Thompson, 2 Doug., 299.
Appeal from Chancery, 105, 106, 141, 143.
Benhardv. Darrow, Wal. Ch., 519.
Equity, 1526.
Bennett, Heald v.
Bennett, Jewett v.
Bennett v. Nichols, 12 Mich., 22.
Appeal from Chancery, 119, 142  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.                          7
Bernard v. Bougard's heirs, Har. Ch., 130.
Equity, 1166; Trusts, 3177.
Berry, Matter of, 7 Mich., 467.
Police Court of Detroit, 2593.
Berry v. Lowe, 10 Mich., 9.
Certiorari, 537, 538; Error, 1544; Practice in Supreme Court,
2794.
Cited, 11 Mich., 357; 12 Mich., 44, 45.
Betts, Gaines v.
Biddle, Cook v.
Bidleman, Pegg v.
Bidwell, Gay v.
Bidwell-v. Whittaker, 1 Mich., 469.
Boat and Vessel Law, 434, 435, 437; Statutes, 3051.
Cited, 2 Mich., 152, 351; 3 MicL., 5; 11 Mich., 124.
Bigelow v. Paton, 4 Mich., 170.
Evidence, 1699; Gift, 1925.
Bigley, Cooper v.
Billings, Way v.
Brigham v. Parsons, 9 Mich., 144.
Practice in Supreme Court, 2769.
Birce, Anderson v.
Birch v. Brown, 5 Mich., 31.
Practice in Supreme Court, 2754.
Birchard, Catlin v.
Bird v. Hamilton, Wal. Ch., 361.
Contracts, 665, 669, 671; Partnership, 2451, 2452; Waiver, 3219.
Cited, 6 -Mich., 312.
Bird, Storey v.
Bishop v. Felch, 7 Mich., 371.
Mortgage of Lands, 2321.
Bishop v. Williams, Wal. Ch., 423.
Equity, 1461.
Bissell, Brown v.
Bissell v. Lewis, 4 Mich., 450.
Bills and Notes, 379 to 381; Conflict of Laws, 572.
Blackmar, Dwight v.
Blackwood v. Van Vleet, 10 Mich, 398.
Appeal from Chancery, 118.
Blackwood v. Van Vleet, 11 Mich., 252.
Constitutional Law, 600; Ejectment, 1081; Equity, 1165, 1172,1173,
1285.
Blair, Newell v.
Blanchard v. Tyler, 12 Mich., 339.
Bona Fide Purchaser, 452, 459; Deed, 997; Equity, 1177; Estoppel,
1621.
Blanohard, Wanzer v.
Bliss v. Paine, 11 Mich., 92.
Error, 1566; Practice in Circuit Courts, 2628, 2689, 2746.
Blodgett, People v.
Bloomer v. Henderson, 8 Mich., 395.
Bona Fide Purchaser, 464; Equity, 1242, 1250,1474; Mortgage of
Lands, 2357, 2359; Notice, 2428; Possession of Lands, 2597.
Cited, 9 Mich, 220; 10 Mich., 495; 13 Mich., 372.
Blumrick, Converse v.
Board of Education of Detroit, Regents of University v.
Boardman v. Acer, 13 Mich., 77.
Judgments, 2092.




8                      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, 2998, 3004, 3007.
Cited, 13 Mich., 372.
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, 232, 245.
Booth v. McQueen, 1 Doug., 41.
Bastardy, 371; Costs, 750.
Bordeno, Amperse v.
Bostwick v. Dodge, 1 Doug., 413.
Bills and Notes, 383.
Cited, 5 Mich., 459. Approved, 13 Mich., 539.
Bostwick v. Dodge, 2 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, 2648, 2659.
Cited, 12 Mich., 376.
Bowen v. Mead, 1 Mich., 432.
Principal and Surety, 2834.
Bower v. Town, 12 Mich., 230.
Attachment, 295.
Bowers, Thompson v.
Bowker, Fuller v.
Bowne v. Johnson, 1 Doug., 185.
Appeal from Justices' Courts, 157.
Bradburn, Royce 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.
Equity, 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. Eglinton, 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, 592.
Bristol, Smalley v.
Britain, Hurlbut v.




TABLE OF. CASES.                          9
Britton v. Ferry, 14 Mich.
Deed, 1009.
Bromley v. People, 7 Mich., 472.
Criminal Law, 895; Error, 1584; Imprisonment for Debt, 2040.,
Bronson v. Green, Wal. Ch., 56.
Contracts, 664, 666 to 668.
Bronson v. Green, Wal. Ch., 486.
Equity, 1872.
Bronson v. Newberry, 2 Doug., 38.
Imprisonment for Debt, 2035 to 2038.
Cited, 2 Doug., 203.
Bronson, Shadbolt v.
Brooks v. Delrymple, 1 Mich., 145.
Justices' Courts, 2169; Practice in Circuit Courts, 2671,
Cited, 10 Mich., 160.
Brooks v, Hill, 1 Mich., 118.
Banks and Banking, 346.
Brooks v. McIntyre, 4 Mich., 316.
Constitutional Law, 618; Evidence, 1661.
Brooks v. Mead, Wal. Ch., 389.
Equity, 1416, 1432.
Brown, Birch v.
Brown v. Bissell, 1 Doug., 273.
Practice in Supreme Court, 2763
Cited, 12 Mich., 389.
Brown v. Byrne, WaL Ch., 453.
Equity, 1442.
Brown v. Cady, 11 Mich., 535.
Deed, 1024, 1025; Practice in Circuit Courts, 2744.
Brown, Carll v.
Brown, Chamberlin v.
Brown v. Chase, Wal. Ch., 43.
Equity, 1425; Evidence, 1804.
Brown v. Cowee, 2 Doug., 432.
Practice in Circuit Courts, 2636.
Brown v. Fifield, 4 Mich., 322.
Constitutional Law, 610; Husband and Wife, 2015, 2031; Pleadings
2570; Statutes, 3059.
Brown v. Gardner, lHar. Ch., 291
Equity, 1118, 1134, 1135.
Brown v. Hazen, 11 Mich., 219.
Frauds, Statute of, 1902.
Cited, 12 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, 1772; Grants, 1944.
Cited, 1 Doug., 566; 2 Doug., 424; 2 Mich., 212; Wal. Ch., 266.
Bryan v. Smith, 10 Mich., 229.
Possession of Lands, 2601, 2603 to 2605, 2617.
Buchegger v. Shultz, 13 Mich., 420.
Constitutional Law, 590; Tender, 3147.
Buchoz, Alderton v.
Buchoz v. Grandjean, 1 Mich.; 367.
Arbitration and Award, 187, 188.




10                   ~ TABLE OF CASES,
Buchoz v. Lecour, 9 Mich., 234.
Equity, 1398.
Buck v. Sherman, 2 Doug., 176.
Appraisal Law, 186; Fraud, &c., 1864, 1868, 1869.
Cited, 2 Mich., 324.
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.
Bullard 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., 209.
Bills and Notes, 409 to 411.
Otted, 11 Mich., 97, 98.
Burnliam v. People, 3 Mich., 195.
Error, 1562.
BurnsltPeople v.
Burpee v. Smith, Wal. Ch., 327.
Equity, 1125, 1130, 1268, 1269, 1360, 1363.
Burtch v. Hogge, Har. Ch., 31.
Equity, 1462; Specific Performance, 2995, 3302.
Cited, Har. Ch., 392.
Bush v. Dunham, 4 Mich., 339.
Possession of Lands, 2601, 2603, 2605.
Cited, 10 Mich., 235.
Butler, Craig v.
Butler v. Ladue, 12 Mich., 173.
Mortgage of Lands, 2327 to 2330.
Butler, McDonald v.
Butler v. Porter, 13 Mich., 292.
Taxation, 3106, 3111.
Butterfield, M.-rgan v.
Butterworth, Marsh v.
Buys v. Eberhardt, 3 Mich., 524.
Arbitration and Award, 205, 206.
Byerly, Amboy, Lansing and Traverse Bay Railroad Co. v.
Byram v. Gordon, 11 Mich., 531,
Recording Laws, 2926; Time, 3153.
Byrne v. Beeson, 1 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.
Cahill v. Kalamazoo Mutual Insurance Co., 2 Doug., 124.
Corporations, 726 to 728, 730, 731, 739, 744; Evidence, 1774; Pleadings, 2559; Practice in Circuit Courts, 2667.
Cited, 2 Mich., 399.
Cahill, Merrill v.
Caldwelli 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, 2728; Sheriff;
2974.
Callender, Waldby v.
Camp, Eldred v.
Camp, How v.
Camp, Kelso v.
Campau v. Chene, 1 Mich., 400.
Deed, 1023; Equity, 1213, 1217; Mortgage of Lands, 2310.
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. Fairbanks, 1 Mich., 151.
Justices' Courts, 2162.
Cited, 3 Mich., 74.
Caml:au, Palms v.
Campbell, -Appellant, 2 Doug., 141.
Dower, 1063, 1073.
Campbell, Pennoyer v.
Campbell, Pratt v.
Campbell, Quackenboss v.
Candee v. Clark, 2 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., 327.
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.




12                     TABLE OF CASES.
Carroll v. Farmers and Mechanics' Bank, Har. Ch., 197.
Comity between States% 550; Equity, 1284, 1286, 1407, 1409.
Carroll v. Potter, Wal. Ch., 355.
Equity, 1152, 1823, 1329.
Cited, 5 Mich., 181.
Carroll v. Rice, Wal. Ch., 373.
Equity, 1115, 1119.
Carroll v. Van Rensselaer, Har. Ch., 225.
Vendor and Purchaser, 3213.
Carson v. Arctic Mining Co., 5 Mich., 288.
Action, 66.
Carter v. Hobbs, 12 Mich., 52.
Innkeeper, 2049, 2050.
Carter, Spear v.
Carter, Whitwell v.
Caruthers v. Hall, 10 Mich., 40.
Equity, 1320; Mortgage of Lands, 2380.
Cited, 13 Mich., 474.
Caruthers v. Humphrey, 12 Mich., 270.
Mortgage of Lands, 2319, 2341, 2382.
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, 2 Doug., 374.
Possession of Lands, 2601, 2606, 2608, 2612, 2613.
Cited, 4 Mich., 344; 10 Mich., 234, 237.
Catlin v. Birchard, 13 Mich., 110.
Action, 63.
Cavenaugh v. Jakeway, Wal. Ch., 344.
Equity, 1129.
Chaffee v. Granger, 6 Mich., 51..
Detroit City, 1036 to 1038; Municipal Corporations, 2396.
Cited, 9 Mich., 143.
Chaffee, Miller v.
Chaffee v. Soldan, 5 Mich., 242.
Appeal from Justices' Court, 175; Error, 1541.
Chamberlin v. Brown, 2 Doug., 120.
Jury, 2143; Possession of Lands, 2598, 2600, 2610.
Cited, 2 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, 3 Mich., 448.
Courts of the United States, 768; Equity, 1279; Homestead, 1998.
Chamberlain v. O'Keefe, 2 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., 261.
Joint Debtors, 2078; Limitation of Actions, 2229, 2230; Practice in
Circuit Courts, 2641.




TABLE OF CASES.                         13
Chandler v. Mcisinney, 6 Mich., 217.
Equity, 1473; Infant, 2042.
Chandler v. Nash, 5 Mich., 409.
Attachment, 298; Constitutional Law, 663; Jurisdiction, 2125, 2126,
2130.
Cited, 8 Mich., 64.
Chapin v. Jacobs, 10 Mich., 405.
Mortgage of Lands, 2324.
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.
Cited, 9 Mich., 156; 11 Mich., 133-4.
Chase, Brown v.
Chase, Huyser v.
UChene v. Bank of Michigan, Wal. Ch., 511.
Trusts, 3174.
Chene, Campau v.
Chene, Fraser v.
Chester, Rossiter v.
Child, Storey v.
Chilvers v. People, 11 Mich., 43.
Detroit City, 1031, 1032.
Chipman, Saviers v.
Chipman v. Thompson, Wal. Ch., 405.
Equity, 1184 to 1186, 1257; Evidence, 1721,
Chubb, People v.
Church, Graydon v,
Cicotte, Beubien v.
Cicotte v. Gagnier, 2 Mich., 381.
Consideration, 587; Deed, 1007; Equity, 1242 to 1245, 1474; Estoppel, 1626; Vendor and Purchaser, 3210.
Cited, 13 Mich., 372, 373, 377.
Cicotte, McBride v,
Cicotte v. Morse, 8 Mich., 424.
Bills and Notes, 417; Certiorari, 536, 537; Justices' Courts, 2152.
Cited, 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, 2399; Negligence, 2423 to 2427.
City of Detroit, Dermont v,
City of Detroit v. Detroit and Erin Plank Road Co., 12 Mich., 833,
Plank Road Companies, 2512, 2513.
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,
2819, 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.
Vity 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, Gurney v.
Clark v, Axford, 5 Mich., 182.
Taxation, 3135, 3136,
Clark, Candee v.
Clark v. Crane, 5 Mich., 151,
Statutes, 3058; Taxation, 3078.
Clark v, Davis, Har, Ch., 227,
Equity, 1198, 1295, 1358, 1362
Clark v, Dorr, 6 Mich., 143.
Questions Reserved, 2871, 2874, 2875.
Clark, Dorr v.
Clark, Erwin v.
Clark, Fox v.
Clark v. Holmes, 1 Doug., 390.
Evidence, 1778, 1779; Jurisdiction, 2125 to 2130, 2136; Justices
Courts, 2145, 2173.
Cited, 2 Doug., 492, 507; 1 Mich., 21, 152, 160.
3 Mich., 260; 5 Mich., 416; 8 Mich., 64.
Clark, Jacox v.
Clark v, Moore, 3 Mich., 55.
Contracts, 695; Damages, 946 to 948; Error, 1547.
Cited, 12 Mich., 370.
Clark v. Mowyer, 5 Mich., 462.
Taxation, 3101, 3102,
Clark, People v.
Clark, Phenix v.
Clark v. Saginaw City Bank, Har. Ch., 240.
Equity, 1332.
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.
Cited, 2 Mich., 333; 11 Mich., 144, 226.
Coatsworth v. Barr, 11 Mich., 199.
Usury, 3193.
Coffenbury, 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., Farrand v.
Collins, People v.
Colman v. Post, 10 Mich., 422.
Mortgage of Lands, 2323, 2394a.
Columbia Bank v. Jacobs, 10 Mich., 849.
Attachment, 290 to 292; Bona Fide Purchaser, 462.




TABLE OF CASES.                          15
Commissioners of Highways of Niles v. Martin, 4 Mich., 557.
See Highway Commissioners v. Niles.
Comstock, Caswell v.
Comstock, Clement v.
Comstock v. Draper, 1 Mich., 481.
Contracts, 686.
Comstock v. Hollon, 2 Mich., 355.
Error, 1562; Fraud, &c., 1891; Pleadings, 2577.
Comstock v. Howard, Wal. Ch., 110.
Mortgage of Lands, 2311, 2336.
Comstock, Mandeville v.
Comstock, Sinclair v.
Comstock, Westbrook v.
Congdon, Morse v.
Connor v. 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 v.
Cook, People v.
Cook v. Village of Hillsdale, 7 Mich., 115.
Ways, 3244, 3252.
Cook v. Wheeler, Har. Ch., 443.
Equity, 1209, 1210, 1262.
Cited, 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 of Internal Improvement, 551; Equity, 1134, 1408 
Ways, 3238, 3240, 3241.
Cooper v. Bigley, 13 Mich., 463.
Deed, 1001, 1005; Equity, 1383; Mortgage of Lands, 2346, 2351,
2370 to 2374; Recording Laws, 2923, 2924, 2928.
Cooper v. Bresler, 9 Mich., 534.
Equity, 1290.
Cooper v. UlmanE, Wal. Ch., 251.
Mortgage of Lands, 2352, 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.
Cornwell, People v,.
Cote v. Dequindre, Wal. Ch., 64.
Action, 42.
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 OF CASES.
Couse v. Tregent, 11 Mich.i 65.
Bona Fide Purchaser, 466.
Cowee, Brown v.
Cox v. Crippen, 13 Mich., 502.
Justices Courts, 2181, 2182.
Cozzens, Ward v.
Craig v. Butler, 9 Mich., 21.
Statutes, 3061; Usury, 3192, 8197.
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, 179. 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, 2342, 2375.
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, 12 Mich., 368.
Damages, 949, 950; Error, 1540.
Cudney, Dann v.
Cullen v. O'Hara, 4 Mich., 132.
Action, 28; Estates of Deceased Persons, 1590; Waiver, 3221.
Cummings v. Stone, 13 Mich., 70.
Consideration, 584; Error, 1547; Evidence, 1815; Frauds, Statutes,
&c., 1914.
Curry, Lull v.
Curtis v. Phillips, 5 Mich., 112.
Mortgage of Chattels, 2292.
Cutler, Dwight v.
Cutler v. Griswold, Wal. Ch., 437.
Fraud, &c., 1870.




TABLE OF CASES.                          17
Cited, 6 Mich., 466; Explaitned, 9 Mich., 489.
Dacon, Perkins v.
Daily v. Litchfield, 10 Mich., 29.
Damages, 960; Deed, 999; Specific Performance, 3011, 3017, 3020
to 3028, 3030.
Daily v. Litchfield, 11 Mich., 497.
Appeal from Chancery, 126.
Daniels v. Eisenlord, 10 Mich., 454.
Equity, 1510; Mortgage of Lands, 2325.
Daniels v. Mosher, 2 Mich,, 183.
Contracts, 697; Evidence, 1726.
Cited, 4 Mich., 212.
Daniels v. People, 6 Mich,, 381.
Circuit Court Commissioners, 540; Recognizance, 2906, 2907, 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., 42.
Deed, 994, 995.
Davenport, Wisner v.
David, Pennoyer v.
Davidson v. Elliott, 9 Mich., 252.
Appeal from Justices Courts, 161.
Davidson v. Gunsolly, 1 Mich., 388.
Replevin, 2953.
Davidson, People v.
Davis, Clark v.
Davis v. Downs, 4 Mich,, 530.
Contracts, 692.
Davis v. Freeman, 10OMich., 188.
Damages, 959; Practice in Circuit Courts, 2634, 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, 3204, 3205.
Davis v. Rider, 5 Mich., 423.
Mortgage of Chattels, 2290; Mortgage of Lands, 2391, 2392; Remedy, 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. Watson, 8 Mich., 535.
Landlord and Tenant, 2210, 2211.
Dayton v. Williams, 2 Doug., 31Pleadings, 2533, 2534, 2590.
Dean, Goodspeed 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, 2418.
Cited, 9 Mich,, 191.
De Graff, Bailey v.
De Graff, Niagara Fire Insurance Co. v.
De Graff, Wright v.
Delaney v. People 10 Mich., 241.
CriminalLaw, 865 to 867.
Delevan v. Bates, 1 Mich., 97.
Action, 34; Damages, 985; Former Suit, 1857; Pleadings, 2575.
Delrymple, Brooks v.
Dennis v. Hemingway, Wal. Ch., 387.
Equity, 1290, 1291.
Cited, 9 Mlich., 536.
Dennis, People 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 P!ank 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, 2509 to 2511;Ways, 3274.
Detroit and Milwaukee Railroad Co. v. Griggs, 12 Mich., 45.
Equity, 1226; Set Oft, 2972.
Detroit and Milwaukee Railroad Co., La Due v.
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 and Pontiac Railroad Co., Matter of, 2 Doug., 367.
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. Higgins, 9 Mich., 223.
Evidence, 1713.
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, Platt v.
Dexter, House v.




TABLE OF CASES.                          99
Dexter and Mason Plank Road Co. v. Millerd, 3 Mich, 91.
Action 64, 65.
Cited, 5 Mich., 293 to 303.
Dibble v. Rogers, 2 Mich., 404.
Error, 1540.
Cited, 5 Mich, 5838.
Dickinson, Appeal of, 2 Mich,, 837.
Appeal in Probate Cases, 178, 179, 180 q Probate  ouarts, 2847, 2848.
Cited, 5 M'ikl 230.
Dillin v. People, 8 Mich., 357.
Criminal Law, 785; Evidence, 1683, 1748, 1757,1758.
Disbrow, Godfroy v.
Disbrow v. Jones, Har. Ch., 48.
Insurance, 2051; Notice, 2428;; Possession of Lands, 2594; Vendor
and Purchaser, 3212.
Disbrow v. Jones, Har. Ch., 102.
Equity, 1211, 1212; Set Off 2972.
Disbrow, Jones v,
Dixon, Gatlinghlouse v,.Dixon v. H-il 5 Mich,, 404.
Bona Fide Purchaser, 458, 459.
Dixon, Steward v.
Dodge, Bostwick v.
IDodge 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 v,
Dorr, Clark v..;Dorr v. Clark, 7 Mich., 310.
Affidavit, 92; Attachment, 261, 306, 307.
Cited, 9 Mich., 163,
Doseman, Scribner v,,Doty, Barrows v,
Doty, Mack v,
Doty, Rowland v,
Dougherty v, Randal, 3 Mlch. M81
Acknowledgment of Deeds, 1; Deed, 992; Evidence, 1836; Mortgage of Lands, 2352.
Cited, 13 Mich,, 394,
Dousman v, O'Malley),  Doug, 450,
Time, 3151, 
Dow, Chamberlain v,
Dow, Street v,
Downs, Davis v,
Doyle v. Stevens, 4 Mich,, 87,
Fraucl, &c, 1890, Mortgage of Ch'ttels, 2295 to 2297; Practice in
Circuit Courts, 2666, 2722.
Drake v. Andrews, 2 Mich., 203.
Appeal from Chancery, 130  Time, 3152,
Drake, Lockwood V.
Drake, Manning v,
Drake, Platt v,
Draper, Comstock v,
Draper v, Williams, 2 Mich., 536,
Railroad Corporations, 2901,
Cited, 7 Mich,, 430,
29




sO                    TABLE OF CASES.
Drennan v, People, 10 Mich., 169,
Arrest, 209; Criminal Law, 782, 814, 898,
Drew v, Dequindre, 2 Doug,, 93,
Attachment, 256, 259, 266, 267, 271, 288,
Cited, 2 Mich., 422; 3 Mich., 535; 5 Mich., 103.
Drew v. Steamboat Chesapeake, 2 Doug., 33.
ColIision of Vessels, 545 to 547.
Dudley, Elliott v.
Dudley, Wright v.
Dunham, Bush v.
Dunham, Wright v.
Dunn v. Dunn, 11 Mich., 284.
Equity, 1242,4. 474, 14-76 to 1482; Evidence, 1682, 1696.
Cited, 13 Mich., 372.
Dunn v. Sutliff, 1 Mich., 24.
Appeal from Justices' Courts, 170; Arbitration and Award, 189;
Justices' Courts, 2167.
Dunning, Wallace v.
Durant v. People, 13 MNich., 351.
Criminal Law, 817, 818, 933.
Cited, 13 Mich., 519.
Durfee v. McClurg, 5 Mich., 532.
*Practice in Supreme Court, 2762.
Durfee v. McClurg; 6' Mich., 228.
Equity, 1354; Husband and Wife, 2016 to 2019.
Cited, 9 Mich., 76.
Dutton v. Ives, 5 Mich., 515.
Bills and Notes, 389; Mortgage of' L.ands,.2350,2857, 2358; Recording Laws, 2907, 2912.
Dwight v. Blackman, 2 Mich., 330.
Estates of Deceased Persons, 1600.
Cited, 11 Mich., 144, 226.
Dwight v. Cutler, 3 Mich., 566.
Action, 69 to 72; Land Contract, 2194 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, 129312.94, 1318;: Homestead,, 2000, 2004.
Cited, 10 Mich., 540; 11 Mich., 360.
Dyson v. Sheley, 11 Mich., 527.
Homestead, 1994, 1996, 1997,
Eagle, O'Flynn v,
Eastman, Wall v.
Eaton, Oliver v.
Eaton, Ramsdell v..
Eberhardt, Buys v,
Edgarton v. Hmclhman, 7 Mich:, 352.
Attachment, 294; 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, 2284 to 2287.
Cited, 7 Mich., 531,
Eggleston, Van Kleek v.
Eglington, Brigham v.
Eisenlord, Daniels v.




TABLE OF CASES.                           21
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., 62.
Bail in Civil Cases, 322.
Elliott v. Green, 10 Mich., 113.
Practice in Circuit Courts, 2695, 2696.
Elliott v. Miller, 8 Mich., 132.
Bills and Notes, 382, 390; Taxation, 3100.
Elliott v. People, 13 Mich., 365.
Criminal Law, 942, 943.
Elliott v. Whitmore, 5 Mich., 532.
Certiorari, 537; Judgments, 2115; Justices' Courts, 2170; Replevin, 2941.
Cited, 8 Mich., 49, 429; Dictum corrected, 10 Mich., 13.
Elmore, Graham v.
Emerson v. Atwater, 5 Mich., 34.
Appeal from Chancery, 122, 123.
Emerson v. Atwater, 7 Mich., 12.
Bona Fide Purchaser, 461, 462; Equity, 1328; Evidence, 1648,
1649, 1766; Mortgage of Lands, 2308, 2309; Stare Decisis, 3035.
Emerson v. Atwater, 12 Mich., 314.
IEquity, 1351 to 1353, 1394, 1398, 1453, 1456, 1457, 1496, 1497; Mortgage 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., 532.
Divorce, 1049.
Emmons, Gray v.
Emmons, Knight v.
Engle v. Shurts, 1 Micli., 150.
Statutes, 3068.
Cited, 10 Mich., 289.
English v. Fairchild, 5 Mich., 141.
Questions Reserved, 2871, 2874, 2875.
Enos v. Sutherland, 9 Mich., 148.
Appeal from Chancery, 117; Equity, 1490.
Cited, 10 Mich., 426.
Egos v. Sutherland, 11 Mich., 538.
Mortgage of Lands, 2313 to 2315, 2389.
Ergensinger, Langley v.
Erie and Kalamazoo Railroad Bank, Fay, v.
Erwin v. Clark, 13 Mich., 10.
Bailment, 323 to 326; 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., 27.
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, 2207; Possession 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 alid 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.
i Felch, Bishop v,
Fellers, Ward v.
Fellows, Horner v.
Fellows, JIawrence v.




TABLE OF CASES.                           23
Fessenden v. Hill, 6 Mich., 242.
Attachment, 256.
Fifield, Brown v.
Fillmore Township, People v.
Findley v. People, 1 Mich., 234.
Criminal Law, 910, 911, 922.
Cited, 8 Mich., 503,
Finkler, Cook v.
Fiquet v. Allison, 12 Mich., 328.
Action 48; Tenant in Common, 3142, 3143.
Cited, 13 Mich., 19.
Fish v, Hale, 4 Mich., 506.Bills and Notes, 425.
Fish, Harrington v.
Fish v. Morse, 8 Mich., 34,
Appeal in Probate Cases, 181, 182; 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 v.
Fitch, Littell v.
Fitch v. Newberry, 1 Doug., 1.
Carriers of Goods, 495 to 497; Warehousemen, 3230.
Fitch, Wharton v.
Fitzhugh v. Barnard, 12 Mich., 104.
Bona Fide Purchaser, 455, 456; Notice, 2429; Vendor and Pur.
chaser, 3211.
Flanigan v. Lampman, 12 Mich., 58.
Assignment, 219, 226, 235: Error, 1557.
Fleming v. Mills, 5 Mich., 420.
Carriers of Goods, 498; Vendor and Purchaser, 3203.
Foote, Lamberton v.
Forbes, White v.
Forsyth, Morey v.
Foster, Loomis 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.
Reversed, Fox v. Willis.
Fox v. Norton, 9 Mich., 207.
Partnership, 2462, 2463.
Fox v. Willis, 1 Mich., 321.
Fraud, &c., 1873, 1874.
Cited, 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, 2798.
Fraser v. Chene, 2 Mich., 81.
Wills, 3284.
Frazer v. Little, 13 Mich., 195.
Replevin, 2960.
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., 62.
Sheriff, 2978.
Cited, Wal. Ch., 325.
French v. Highway Commissioners of Springwells, 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, 2150.
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.
Gard v. 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.
Gardner 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, Scribner v.
Geddes, People v.
George, Herschfeldt v.
Getchell, People v.




TABLE OF CASES.                        25
Gibb v. Austin, 9 Mich., 509
See Penniman v. Perce.
Gibson, Gray v.
Gibson v. Hibbard, 13 Mich., 214.
Constitutional Law, 593, 594; Donatio Causa Mortis, 1062; Stamps,
3033, 3034.
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, 1338, 1339.
Gillett, Atwood v.
Gillett, Campau v.
Girardin, People v.
Glover v. Alcott, 11 Mich., 470.
Evidence,, 1716, 1811, Husband and Wife, 2023 to 2025.
Goddard, McReynolds v.
Godfrey Estate, Matter of, 4 Mich., 308.
Estates of Deceased Persons, 1606, 1607.
Godfrey, Robinson v.
Godfroy v. Disbrow, Wal. Ch., 260.
Adverse Possession, 87; Bona Fide Purchaser, 450 to 454; Deed,
991; Evidence, 1805; Notice, 2428; Possession of Lands, 2594;
Recording Laws, 2914 to 2917.
Godfroy's Heirs, Abbott v.
Golf 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., 385.
Certiorari, 522.
Goodspeed v. Dean, 12 Mich., 352.
Land Contract, 2203.
Goodwin, Parks v.
Gordon, Byram v,
Gordon v. Farrar, 2 DIoug., 411.
Action, 17.
Gorham, Gardner v.
Gorham v. Wing, 10 Mich., 486.
Attachment, 289; Courts of U. 8, 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.
Equity, 1391.
Gouldv. Tryon, Wa. Cih., 353.
Equity, 1197.
Graham v. Elmore, Har. Ch., 265.
Equity, 1403, 1487, 1488, 1501.
Grand Blank and Holly P!ank Road Co., People v.
Grandjean, Buchoz v.
Grandy, Miller v.
Granger, Chaffee v.
Granger, Nall v.
Granger, Reed v.
Grant, Austin v.




A].31 T    CF CA Ms
Grant,, Craig v.
Gant,, Place v.
Gxaves). Green v-.
Graves, v. Niles, ]Ear. Ch, 3882.
Equity, 1381,. 1382, 1394 to 1396..
Gray v. Emmons,. 7 Mich., 533.
Attorneys, 3t5 to 320.
Gray v. Gibson, 6 Mich,' 300.
Partnership, 247S to 2477.
Gray v. Howard, 12 Mich.,171.
Practice in Circuit Courts, 2741.
tray, Phoenix Insurance Co. v.
Graydon v. Church, 4 Mich., 646.
Overruled in part, see next case.
Gxaydon v. Church,, 7 Mich., 36,
Estoppel, 1627 to,1I29;, Foreign Reeivrs,.  3, 1834;:1 Mortgage of
Lands, 2320.
Cited, 13 Mickl,. 478.
2Green, Bronson v,
Green, Bullard v.
Green, Elliott v.
Green v. Graves. I Doug., 351.
Banks and Banking, 345; Constitutiona Lwaw, 65,
Cited, 2 Doug., 195;2 Mich, 287; 5 Mich., 259; I3 Mich., 151.
Green, Reynolds v.
Green v. Ston~e, Wal. Ch., 109.
Equity;  1227.
Green, Trask v.
Greenman, Ortman V.
Greenvault v. Farmers and Mechanics' Bank, 2 Doug., 498.
Affidavit, 91,. 92; Attachment, 254, 255, 265,238;Jurisdiction, 2131..
Cited,. 2 Miich., 420; 3 Mich., 186.
Gregory v. Stanton, 12 Mich,. 61.
Equity, 1275, 1507.
reusel v. Thomas, 6 Mich.,. 76,
See Quirk v, Thomas.
Griffn, Scales v.
Griggs, Detroit and Milwaukee R  Rt Co.- t.
Griggs v. Detroit and Milwaukee Railway (o;, 1( MccIic., 11.
Appeal from  Chancery, 146,; Equity, 1384, 1385, 1495  1530 1531;
Trusts, 3183.
Grinnell, Munger v,
Griswold, Cutter v,.
Groesbeck v. Seeley, 13 Mich., 329.
Acknowledgment of Deeds, 14; Clnstitational Law, 626, 63  6386;;
Evidence, 1788; Stamps, 3034; Taxation, 3114.
Gugins v. Van Gorder, 10 Mich., 523,.
Estoppel, 1633.
Gunsolly, Davidson v.
Gurney, Brigham v.
Gurney'v, St. Clair City, 11 Mich., 202.
Justices' Courts, 21474
Hadley, Morris v.
Haines v. Oatman, 2 Doug, 430.
Practice in Circuit Courts, 2630.
sHale v. Chandler, 3 Mich., 531.
Action,. 87; Attachment, 258, 282, 26;, Equity, 1$49.
Cited, 10 Mich., 512.
Hale, Fish v.
Hale v. Holmes,,  Mich., 37..




TABLE OF CASES.                        27
Compromise of Claims, 557, 558; Equity, 1221, 1222.
Hale v. Houghton, 8 Mich., 458.
Detroit City, 1044, 1045,
Hale, Michigan Central R. R. Co. v.
Hale, Owners of Ship Milwaukee v.
Hale, Romeyn v.
Hall, Matter of, 10 Mich., 210.
Evidence, 1841; Habeas Corpus, 1984; Prohibitory Liquor Law,
2856.
Hall, Carne v.
Hall, Caruthers v.
Hall, Dawson v.
Hall, Holmes v.
Hall v. Nash, 10 Mich., 303.
Contracts, 711 to 713; Mortgage of Lands, 2391.
Cited, 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, 1912.
Cited, 12 Mich., 15.
Hamell, Adams v.
Hamilton, Bird v.
Hammond v. Michigan State Bank, Wal. Ch., 214.
Conditions, 561; Equity, 1312; Principal and Agent, 2824.
Hammond, 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 v. People, 1 Doug., 207.
Criminal Law, 868 to 870.
Harleston, Trowbridge v.
Harrington v. Fish, 10 Mich., 415.
Acknowledment of Deeds, 12,183;Deed, 1000, 1020, 1021,
Harrington v. Scott, 1 Mich., 17.
Possession of Lands, 2614 to 2616.
Harrington v. Worden, 1 Mich., 487.
Pleadings, 2558.
Hart, Hatch v.
Hart, Lapeer Co. v.
Hart v. Linsday, Wal. Ch,. 72.
Equity, 1502 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 v.
Harvey v, Cady,, 3 Mich., 481.
Bailment, 326; 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.




28                    TABLE OF CASES.
Hastings, Michigan State Bank v.
Hatch v. Hart, 2 Mich., 289.
Replevin, 2952.
Hatch v. Squier, 11 Mich., 185.
Evidence, 1719.
Hathaway, Bassett v.
Hathorn v. Lyon, 2 Mich., 93.
Curtesy, 945.
Haviland v. Parker, 11 Mich., 103.
Damages, 982.
Hawley, People v.
Hawley v. Sheldon, Har, Ch., 420,
Specific Performance, 3000, 3032.
Hazen, Brown v.
Hazzard, Truesdale v.
Heald v Bennett, 1 Doug., 513.
Action, 62; Justice of the Peace, 2190; Payment, 2505.
Cited, 1 Mich., 32.
Hemingway, Dennis v.
Hemingway v. Preston, Wal. Ch., 528.
Possession of Lands, 2597.
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, 523, 528.
Cited, 5 Mich., 538; 10 Mich., 12.
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., 125.
Constitutional Law, 617.
Cited, 5 Mich., 280; 12 Mich., 136.
Hibbard, Gibson v.
Hickey v. Baird, 9 Mich., 32.
Contracts, 704, 705; Error, 1550; Maxims, 3337.
Hickey v. Hinsdale, 8 Mich., 267.
Evidence, 1798; Statutes, 3056.
Cited, 9 Mich., 148.
Hickey v. Hinsdale, 12 Mich., 99.
Estoppel. 1625; Evidence, 1702; Replevin, 2936.
Hicks v. People, 10 Mich., 395.
Criminal Law, 901, 902.
Higgins v. Carpenter, Har. Ch., 256.
Equity, 1433, 1489.
Higgins, Deuel v.
Higgins, Lawson v.
Higgins, People v.
Higgins v. Watson, 1 Mich., 428.
Bills and Notes, 396; Bond, 471; Evidence, 1807, 1833; Guaranty,
1961; Maxims, 83333.
Overruled in part, 3 Mich., 188.




TABLE OF CASES.                         29
High, appellant, 2 Doug., 515.
Conflict of Laws, 569; Domicil, 1060; Evidence, 1658, 1802; Probate Courts, 2845; Wills, 3277, 3281.
Cited, 5 Mich., 277, 363.
Highway Commissioners, French v.
Highway Commissioners v. Stockman, 5 Mich., 528.
Action, 26, 27; Evidence, 1656.
Higley v. Lant, 3 Mich., 612.
Certiorari, 518, 523; Error, 1584; Waiver, 3225.
Cited, 4 Mich., 199.
Hill, Brooks v.
Hill, Dixon v.
Hill, Fessenden v.
Hill v. La Fayette Insurance Co., 2 Mich,, 476.
Evidence, 1724; Insurance, 2052; Practice in Circuit Courts, 2732.
Hill, IN orris v.
Hill, Sackett v,
Hill, Stewart v.
Hill, Wilcox v.
Hilliker, Thorne 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., 163.
Error, 1567.
Hinkley, Barnard v.
Hinman v. School District No. 1, 4 Mich., 168.
Schools, 2966.
Hinsdale, Hickey v.
Hitchcock, Webster v.
Hoag v. Breman, 3 Mich., 160.
Action, 31.
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, Littlefield v.
Hoffman, People v.
Hogan v. Sherman, 5 Mich., 60.
Evidence, 1644, 1708to 1710; Practice in Circuit Courts, 2655.
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., 309.
Assignment, 219, 223, 225, 228 to 231, 242, 243, 248; Equity, 1162;
Fraud, &c., 1869.
Cited, 6 Mich., 341,348.
Hollon, 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, Hunterv.
Hopkins, Jerome v.
Hopson v. Payne, 7 Mich., 334.
Equity, 1296, 1297.
Horner v. Fellows, 1 Doug., 51.
Evidence, 1718; Fraudulent Representations, 1895; Warranty, C2~33
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, 2492.
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; 12 Mich,, 360.
Howard v. Palmer, Wal. Ch., 391.
Equity, 1427, 1446, 1459, 1460.
Itoward v. People, 3 Mich., 207.
Justices' Courts, 2187, 2188,
Cited, 7 Mich., 317,
Howard v. Rockwell, 1 Doug., 315.
Evidence, 1806; Judgments, 2121.
Hoyt v. Mapes, 3 Mich,, 522.
Appeal from Justices' Courts, 174.
Hoyt, Morris v.
Hubbard v Smith, 2 Mich., 207.
Adverse Possession, 87; 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, 2233, 2234; Statutes, 3063.




TABLE OF CASES.                            31
Hull, Achey v.
Humphrey, Caruthers v.
Hunt v. Thorn, 2 Mich., 213.
Equity, 1343; Estates of Deceased Persons, 1596; Evidence, 1703,
Specific Performance, 3002, 3010, 3014, 3015; Maxims, 3333.
Hunter v. Hopkins, 12 Mich., 227.
Equity, 1179.
Huntington v. Wellington, 12 Mich., 10.
Frauds, Statute of, 1899, 1900, 1904 to 1906.'Hunton v. Platt, 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; Corporaticns, 7 1
Equity, 1335; Evidence, 1817.
Hurtford v. Holmes, 3 Mich., 460.
Justic es Courts, 2151; Pleadings, 2531.
Huyser v' Chase, 13 Mich., 98.
Landlord and Tenant, 2216; Possession of Lands, 2600.
Hyde v. Nelson, 11 Mich., 353.
Attachment, 296, 304; Certiorari, 518, 519.
Hyde, Nelson v.
Hydliff; Squire v.
Ingersoll, Davis v.
Ingersoll v. Horton, 7 Mich., 405.
Specific Performance, 3005, 3006.
Ingersoll, Horton v.
Ingersoll v. Kirby, Wal. Ch., 27.
Time, 3150.
Ingersoll v. Kirby, Wal. Ch., 65,
Equity, 1266, 1309, 1310.
Ingersoll, Kirby v.
Ingersoll, Maiden v.
Ingerson v. Starkweather, Wal. Ch., 346.
Principal and Agent, 2827.
Overruled in part, 1 Doug., 413; 5 Mich., 459; 13 Mich., 539.
Cited, 2 Mich., 195, 333; 11 Mich., 226.
Ireland, Sallee v.
Ireland v. Spalding, 11 Mich,, 455.
Practice in Supreme Court, 2772.
Ives v. Bank of Lansingburgh, 12 Mich., 361.
Land Contract, 2204; Principal and Surety, 2839, 2840.
Ives, Dutton v.
Ives v. iimball, 1 Mich., 308.
Acknowledgment of Deeds, 2; Deed, 1002, 1018; Evidence, 1771;
Probate Courts, 2846; Taxation, 3113; Variance, 3202; Maxims,
3323.
Cited, 4 Mich., 150; 6 Mich., 31; 9 Mich., 343,
Jackson v, City of Detroit, 10 Mich., 248.
Equity, 1233.
Jackson, City of Detroit v.
Jackson v. Dean, 1 Doug., 519.
Fraud, &c,, 1882, 1883; Replevin, 2943,
Cited, 7 Mich., 114, 158,'
Jackson v. Evans, 8 Mich., 476.
Evidence, 1828 to 1832.




32                    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 520; Ways, 3263.
Cited, 11 Mich., 357.
Jackson, People v.
Jackson v. Sheldon, 2 Doug., 154.
Statutes, 3071.
Jackson and Michigan. Plank Road 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 v.
Jacobs, Columbia Bank v.
Jacobs v. Stokes, 12 Mich., 381.
Jacobs, Stokes v.
Jacox v. Clark, Wal. Ch., 249,
Waiver, 3222.
Jacox v. Clark, Wal. Ch., 508.
Equity, 1229.
Jagger v. Coon, 5 Mich., 31.
Practice in Circuit Courts, 2712a; Practice in Supreme Court, 2753.
Jakeway, Cavenaugh v.
James v. Brown, 11 Mich., 25.
Mortgage of Lands, 2345, 2346; Notice, 2428; Recording Laws,
2928.
Cited, 13 Mich., 402.
James v. Howard, 4 Mich., 446.
Detroit City, 1041.
James v. Pontiac and Groveland Plank Road Co., 8 Mich., 91.
Plank Road Companies, 2528 to 2530,
Cited, 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, 2656,
Cited, 10 Mich., 38, 191.
Jenness, People v.
Jennison v. Parker, 7 Mich., 355.
Bills and Notes, 391; Principal and Agent, 2831.
Cited, 11 Mich., 509.
Jennings v. People, 8 Mich., 81.
Criminal Law, 878, 879.
Jenny v. O'Flynn, 5 Rlich., 215.
Appeal from Chancery, 147; Equity, 1418, 1419.
Cited, 6 Mich., 75.
Jerome, Bagg, v.
Jerome v. Hopkins, 2 Mich., 96.
Equity, 1242, 1248, Mortgage of Lands, 2326.
Jerome, People v.
Jerome v. Seymour, Har. Ch., 255.
Equity, 1485.
Jerome v. Seymour, Har. Ch., 357.
Mortgage of Lands, 2393,
Jerome v. Seymour, Wal. Ch., 359.
Equity, 1494, 1499.




TABLE OF CASES.                        33
Jerome, Seymour v.'
Jerome, Washington County Bank y.
Jerome v. Williams, 13 Mich., 521,
Certiorari, 511a; Judgments, 2118, 2119.
Jewett v. Bennett, 3 Mich., 198,
Justices' Courts, 2186.
Jewett v. 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 1890, 1417, 1429, 1431; Maxims 3330.
Johnson v. Johnson, Wal. Ch, 331.
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, Replevin 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.
Cited, 2 Doug. 529; 3 Mich., 192; 5 Mich., 363; 8 Mich., 54.
Jones, People v.
Jones v. Phelps, 5 Mich., 218.
Contrmt 67.4; Evidence 1672, 1834,
Jones, Rood w..
Jiones v-. Smith, Wdal. 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, 1282; 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 v.
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 HIusan v.
Kassick, Wilcox v.
Kean v. Mitchell, 13 Mich., 207.
Pleadings, 2562 to 2565.
Kearsley, Ready v.
Keller v. Holderman, 11 Mich., 248.
Contracts, 677.
Kelloggv. Barnes, Har. Ch., 258.
Equity, 1410.
Kellogg v. Putnam, 11 Mich., 344.
Appeal from Chancery, 148; Equity, 1421.
Cited, 12 Mich., 430.
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 v.
Kent, Hotchin v.
Kent v. May, 13 Mich., 38.
Contracts, 694.
Kent, People v.
Kenyon; Buhl v.
Kephart v. Farmers and Mechanics' Bank, 4 Mich., 602.
Appeal from Chancery$ 127,
Kercheval, Farmers and Mechanics' Bank v.
Kercheval v. Wood, 3 Mich., 509.
Judgments, 2094.
Kermott v. Ayer, 11 Mich., 181.
Conflict of Laws, 570;;Error, 1562; Evidence, 1799, 1803; Usage,
3190.
Ketcham, Sill v.
Keyes, Stout v.
Kibbe v. Andrews, 12 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,
Kimmell v. Willard's, Administrators 1 Doug. 217.
Mortgage of Lands, 2364, 2383.
King v, Moore, 10 Mich., 538.
Husband and Wife, 2034; 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, 2572.
Cited, 9 Mich., 502.




TABLE OF CASES.                          35
Kinyon v. Fowler, 10 Mich., 16,
Justices Courts, 2178, 2179.
Kinzie v, Farmers and Mechanics' Bank, 2 Doug. 105.
Bills and Notes, 421; Vendor and Purchaser, 3207.
Kirby v. Ingersoll, Har. Ch., 172.
Assignment, 212 to 214; Fraud &c., 1859 to 1861.
Affirmed, 1 Doug. 477.
Cited, 2 Mich., 103.
Kirby v. Ingersoll, 1 Doug. 477.
Assignnent, 212 to 214; Partnership, 2481.
Cited, 2 Doug. 294.
Kirby, Ingersoll 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, 2684, 2685.
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, 1821.
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 Milwaukee Railroad Co., 13 Mich., 380.
Mortgage of Lands, 2319, 2331, 2332.
La Fayette Insurance Co., Hill v.
LaGrange township v. Chapman, 11 Mich. 499.
Action, 39; Evidence, 1816; Pleadings, 2546.
Laing, Belden v.
Laing v. McKee, 13 Mich., 124.
Equity, 1150; Frauds, Statute of, 1907.
Lake, Lee v.
Lamb, Tower v.
Lambert, People v.
Lampman, Flanigan v.
Lane, Thayer v.
Lsngley v. Ergensinger, 3  ilch., 314.
Constitutional Law, 653.
Lant, Higley v.
Lantis, Matter of, 9 Mich., 324.
Certiorari, 513, 515.
Cited, 12 Mich., 114.
Lapeer County v, Hart, Har. Ch., 157.
Equity, 1163, 1164.
Lapeer and Port Huron Plank Road Co., Barnard v.
La Plaisance Bay Harbor Co., v. City of Monroe, Wa]. Ch., 155.
Grants, 1939; Navigable Waters, 2404, 2405, 2413;
Ordinance of 1787, 2444 to 2446.
Larkin v. Saginaw Co., 11 Mich., 88.
Action, 23; Counties, 759, 760,
Larned v. Wilcox, 4 Mich., 333.
Practice in Circuit Courts, 2627, 2731.
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




36                    TABLE OF CASES.
LaRue, Wood v.
Lastly v. Cramer, 2 Doug. 307.
Limitation of Actions, 2234.
Cited, 1 Mich., 410; 3 Mich., 149; 4 Mich., 168.
LathrQp, Agent of State Prison v.
Lathrop v. Hicks, 2 Doug. 223.
Practice in Supreme Court, 2764 to 2767.
Latimer v. Lovett, 2. Doug. 204.
Taxation, 3113.
Cited, 1 Mich., 316; 2 Mich., 493; 9 Mich., 343.
Latimer v. Woodward, 2 Doug., 368.
Possession of Lands, 2609, 2614.
Lawrence, Bruckner's Lessee v.
Lawrence, Chandler v.
Lawrence v. Fellows, Wal. Ch., 468.
Equity, 1532.
Lawrence, Smith v.
Lawson v. Higgins, 1 Mich., 225.
Boat and Vessel Law, 438.
Cited, 11 Mich., 123.
Lawyer v. Smith, 8 Mich., 411.
Evidence, 1659; Wills, 3296, 3297.
Leahey, Michigan Central Railroad Co., v.
Leavitt v. Leavitt, 13 Mich., 452.
Divorce, 1050, 1058, 1059.
Lecour, Buchoz v.
Leddy, Matter of, 1 Mich., 197.
Criminal Law, 899, 900.
Lee v.Hardgrave, 3Mich., 77.
Certiorari, 525, 526; Error, 1541, 1560; Partnership, 2473; Practice in Supreme Court, 2788.
Lee v. Lake, 13 Mich., 220.
Practice in Circuit Courts, 2742.
Lee v. Lake, 14 Mich.
Town Plats, 3155, 3157; Ways, 3244, 3245.
Lee v. Mason, 10 Mich., 403.
Mortgage of Lands, 2366, 2367.
Lee, Nichols v.
Lee v. Payne, 4 Mich., 106.
Action, 24; Estoppel, 1617; Evidence, 1827;Landlord and Tenant,
2207, 2214; State Lands, 3043.
LeFevre v. Mayor, &c., of Detroit, 2 Mich., 586.
Taxation, 3123 to 3125.
Leonard v. Taylor, 12. Mich., 398.
Equity, 1528, 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, 2220 to 2222.
Lewis, Turner-v.
Lewis, Woodbury v.
Linsday, Hart v.
Litchfield, Carne v.
Litchfield, Daley v.




TABLE OF CASES.                          37
Litchfield v. Garratt, 10 Mich., 426.
Action, 39, 41; Assignment, 210  Practice in Circuit Courts, 2662.
Litchfield, Garratt v.
Littell v. Fitch, 11 Mich., 525.
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.
Cited, 6 Mih., 5388.
Little, Robertson, v,
Little, Stephenson v.
Littlefield v. Hodge, 6 Mich., 326.
Bills and Notes, 389; Garnishees, 1924.
Littlejohn, People v.
Livingston v. Jones, Har. Ch., 165.
Acknowledgment of Deeds, 1; Equity, 1287; Guardian and Watd,
1963.
Lockwood v. Beckwith, 6 Mich., 168.
Equity, 1218 to 1220; Evidence, 1720.; Partnership, 2478, 2479.
Cited, 8 Mich, 42.
Lockwood v. Drake, 1 Mich., 14.
Ejectment, 1080; Practice in Circuit Courts, 2674, 2675.
Logan v. Anderson, 2 Doug., 101
Landlord and Tenant, 2215.
Longstreet, Willard v.
Loomis v. Foster, 1 Mich, 165.
Replevin, 2948.
Loranger, Wadsworth v.
Lord, People v.
Lord v. Strong, 6 Mich., 61.
Damages, 953.
Loree v. Reeves, 2 Mich. 133.
Attachment, 281; Attorneys, &c., 814.
Cited, 5 Mich., 30.
Lorman v. 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 Circait Courts, 2729.
Lothrop v. Southworth, 5 Mich., 436.
Evidence, 1797; Injiunction Bond, 2045 to 2048; Pleadings, 2555,
2556.
Loud, Hollister v.
Tovett, Latimer vw
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. Sanbourn, 2 Mich., 109.
Error, 1551; Partnership, 2465; Principaland Agent, 2818.
Lynch v. Bruce, 2 Doug., 123.
Replevin, 2957.




TABLE OF CASES.F
Lyon, Hathon v.
Lyon, Wales v.
Lyon, Weed v.
Mack v. Doty, Har. Ch., 366.
Equity, 1125 to 1127.
Mack, Thompson v.
Mahaney, People v,
Mahar, Malony v.
Maher v' People, 10 Mich, 212.
Criminal Law,. 783, 784, 787 to 791, 93J3
Mahoney, Dixon v.
Maiden v. Ingersoll:, 6 Mich., 373.
Treaty, 3166.
Maitland, Aldrich v.
Major, Cuddy v.
Malony v. Mahar, 2 Doug,, 432, and I Mich., 26.
County Treasurer, 766.
Mandeville v. Comstock, 9 Mich., 536.
Deed, 1011 I022; Equity, 135.
Mandlebaum, Moore v.
Mandlebaum v. North American Mining Co., 4 Mich., 465.
Estoppel, 1632.
Mann, Dye v.
Mann, Webb v.
Manning v. Drake,. 1 Mich., 34.
Equity, 1237 to 1239, 1361; Estates of Deceased Persons, 1614 f
Fraud, &c., 1877.
Manning, Pierson v.
Manning v. Williams, 2 Mich,, 105.
Partnership, 2482.
Mansfield, Franklin v.
Mapes, Hoyt v.
Marathon -. Oregon, 8 Mich., 372.
Mandamus, 2245; Townships, 316g2
Cited, 10 Mich., 309.
Markham v. Markham, 4 Mich.,.05.
Equity, 1367, 1368.
Marsh v. Butterworth, 4 Mich., 575.
Estoppel, 1617; Landlord and Tenant, 2209,
Martin, Commissioners of Highways v.
Martin v. McReynolds, 6 Mich., 70.
Appeal from Chancery, 146; Equity, 1262, 1263, 1273, 1289; Mortgage of Lands, 2352.
Gted, 12 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 v.
Mason v. Payne, Wal. Ch., 459.
Equity, 1404; Mortgage of Lands, 2377 to 2379; Vendor and Purchaser, 3211.
Cited, 10 Mich., 41; 12 Mich., 110; 13,Mich,. 4.74..
Masten, Smalley v.
Matthew.s,.Paddock:v.
May, Kent v.




TABLE'OF CASES.                          9
iMay, People v.
May v. Rumney, 1 Mich., 1.
Dower, 1064, 1066.
May v. Specht, 1 Mich., 187.
Dower, 1067; Treaty, 3165.
Cited, 1 Mich., 263; 6 Mich., 189.
May v. Tillman, 1 Mich, 262.
Dower, 1067; Estoppei, 1623.
Cited, 6 Mich., 189..Maynard v. Hoskins, 8 Mich., 81.
Appeal from Chancery, 134.
Maynard v. Hoskins, 8 Mich., 260.
Appeal from Chancery, 125, 133.
Maynard v. Hoskins, 9 Mich., 485.
Attachment, 289; Judgments, 2096, 2097.
Cited, 11 Mick., 251.
Maynard v. Penniman, 7 Mich., 333.
Practice in Supreme Court, 2773, 2774.
Maynard v. Penniman, 10 Mich.. 153.
Error, 1562.
Maynards v. Cornwell, 3 Mich., 809.
Garnishees, 1915, 1919 ~ Statutes, 3059.
Cited, 7 Mich., 106.
Mayor, &c., of Ann Arbor,.Root v.
Mayor, &c., of Detroit, Devauxv.
Mayor, &c., of Detroit v. Jackson, 1 Doug., 1t6.
See City of Detroit v. Jackson.
Mayworm, People v.
-Maxwell, Wight v.
McAdam, Smith v.
McBride v. Cicotte, 4Mich., 478.
Error, 1561; Evidence, 1640, 1641, 1675, 1754; Practice in Supreme
Court, 2785; Waiver, 3227.
Cited, 5 Mich., 230.
McCauley, Tinker v.
McClurg, Durfee -v.
McCormick, Picard v.
McDonald v. Butler, 3 Mich., 558.
Judgments, 2084.
McDonald, People v.
McDowell, Simmons v.
McDowell, Wing v.
McGraw v, Pettibone, 10 Mich., 530.
Equity, 1223 to 1225.
McGraw, Pettibone v.
XcHardy v. Wadsworth, 8 Mich., 349.
Pleadings, 2584, 2586; Practice in Circuit Courts, 2694; Recoupment, 2931.
McHenry, Norvell v.
McIntyre, Brooks v.
1McKee, Laing v.:McKee v. Wilcox, 11 Mich., 358.
Homestead, 2006, 2009,; Possession of Lands, 2594, 2595,
McKee, Young v.
McKeen, Hart v.
McKibben, Allen v.
McKibben v. Barton, 1 Mich., 213.'
Equity, 1200.
Me;inney, Chandler v.




TABLE OPF CASES.
McKinney, People v.
3McLaughlin v. Detroit and Milwaukee Railway Co., 8 Mich., 100..
Corporations, 734 to 736.
McLean v. Barton, Har. Ch., 279.
Equity, 1211, 1213, 1214Cited, 1 Mich., 407,410.
McMurtrie v. Bennette, Har. Ch., 124.
Specific Performance, 2995,, 29*7,, 2998^ 3000, 3001L
Cited, Har. Ch., 392.
McNair, Booth v.
McNoah, Tefft v.
McQueen, Boothyv
McQueen, Spier v.
McReynolds v. Goddard, 1 Mich., 512.
See State of Michigan v. How,
Cited, 1 Milh., 483..
McReynolds, Martin v.
Mead, Bowen v.
Mead, Brooks v.
Mead, Sweetzer v.
Mercer v. Williams, Wal.. Ch.. 85.
Eminent Domain, 1101, 1107 ~Tbrriitrial Council, 3149..
Cited, 5 Mich., 348&
Merriam, Hulbert v.
Merrick, Brighton Market Bank v..
Merrick v. Webster, 3 Mich., 268..
Carriers of Goods, 499.
lMerrill v. Cahill, 8; Mich., 55.
Millers, &c., 2277 to2280.
Merrill v. Hartwell, 11 Mich., 200..
Land Warrant, 2205, 2206.
Metcalf, Tweed v.
Michael, Woodrow v..
Michigan Central Railroad Co. v. HIa[le, 6:. Mich, 243Carriers of Goods, 487 to 489,. 494..
Michigan Central Railroad Co. rv. Leahey, 10 Mich., 193.
Negligence, 2416, 2422.
Michigan Central R. R- Co. v. Michigan Southerm RR. Co., 4 Mich.,. 3w62
Michigan Central R- R. 2268.
Michigan Central Railroad Co., Moore v.
Michigan. Central Railroad Co. v. Ward, 2 Mich., 538&
Carriers of Goods, 489, 494.
Overruled. 6 Mich., 243..
Michigan Central Railroad Co., Williams v.
Michigan Insurance Co. v. Brown, 11 Mich., 265.
Appeal from; Chancery, 145; Mortgage of Laads,, 23l4,2296;  Pay -
ment, 2496.
Michigan Insurance Co. v. Kibbee,. 6 Mich., 410.
Payment, 2499 - Contracts,. 701Michigan Insurance Co. v.Whbittemore,. 12 Mich, 31L
Appeal from Chancery, 112,. 138.
Michigan Insurance Co.. v, Whittemore,. 12 Mich.,,. 427
Appeal from Chancery, 146; Equity,. 1420, 1500.
Michigan Southern R. R. Co., Michigan Central R, R. Cb,.v.
Michigan Southern R. R. Co., People v.
Michigan Southern and Northern Indiana R. R. Co. v. Auditor- General, 9 Mich., 448.
Michigan Southern R. R. Co., 2271 to 2276.
Michigan Southern andi Northern Indiana Railroacd CGo. v. Davis,,T
Mich.,. 10.




TABLE OF CASES.                         41
(Note to Sanger and Truesdail), Practice in Supreme Court, 2803.
Michigan Southern and Northern Indiana R. R. Co., People v.
Michigan Southern  and Northern Indiana R. R. Co. v. Shurtz, 7
Mich., 515.
Carriers of Goods, 492, 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, 2824; State of Michigan, 3038.
AJirmed on different grounds, 1 Doug. 225. See 1 Doug., 527.
Michigan State Bank v. Hastings, 1 Doug., 225.
Conditions, 561 to 568;  Constitutional Law, 595.
Folloiwed, 1 Doug., 527; Cited, 2 Mich., 246.
Middlesworth v. Nixon, 2 Mich., 425.
Equity, 1240; Evidence, 1738.
Miles, People v.
Miles, Roberts v.
Miles v. Walker, 4 Mich., 641.
Overruled,5 Mich., 462, 491.
Millard v. Ramsdell, Har. Ch., 373.
Equity, 1346; Partnership, 2484; Specific Performance, 2995,
2998,
Millard, Ramsdell v.
Miller, Bumpus v.
Miller v. Chaffee, 1 Mich,, 257.
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.
Millerd v. Reeves, 1 Mich., 107.
Action, 21; Practice in Circuit Courts, 2711; Practice in Supreme
Court, 2809; Water Rights, 3234.
Mills, Matter of.
Attorneys, &c., 309 to 311.
Mills, Fleming v.
Mills v. Spencer, 3 Mich., 127.
Pleadings, 2540 to 2543; 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, 2637.
Montgomery v. Wight, 8 Mich., 143,
Conflict of Laws, 574; Mortgage of Chattels, 2293.
Moore, American Transportation Co. v.




42                     TABLE OF CASES
Moore, Clark v.
MoDre, 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. Forsyth, Wal. Ch., 465.
Equity, 1258, 1259; Vendor and Purchaser, 3210.
Cited, 6 Mich., 73; 12 Mich., 350, Wal. Ch., 499.
Morgan v. Butterfield, 3 Mich., 615.
Contracts, 694,
MIorrill v. Seymour, 3 Mich., 64,
Judgments, 2114.
Morris v. Hadley, 9 Mich., 278.
Equity, 1235, 1236.
Morris v, Hoyti; 11 Mich., 9.
Equity, 1355; Specific Performance, 3004, 3019, 3024 to 3030; Maxims, 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, Criipen 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. Steamboat Missouri, 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; Evidence, 1823; Vendor and Purchaser, 3213.
Mowyer, Clark v.
Moyer v. Pine, 4 Mich., 409.
Slander, 2989, 2993, 2994.




TABLE OF CASES.                           43
Moynahan v. Moore, 9 Mich., 9.
Mechanics' Lien, 226(7.
(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., 365; 11 Mich., 246, 255; 13 Mich., 36.
Munger v. Grinnell, 9 Mich., 544.
Practice in Circuit Courts, 2673.
Murphy, Bailey v.
Myers v. Carr, 12 Mich., 63.
Contracts, 717; Pleadings, 2544, 2574.
Nall v. 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 v. Bank of Lansingburgh, 10 Mich., 547.
Bills and Notes, 400, 4i14, 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.
Overruled 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 420; Evidence, 1712; Practice in
Circuit Courts, 2639; Res Judicata, 2961; Set Off, 2970, 2971.
Newbould, Wales v.
Newell v. Blair, 7 Mich., 103.
Appeal from Justices' Courts, 160; Garnishees, 1920 to 1923.
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, 2067, 2068.
Nichols, Bennett v.
Nichols v. Lee, 10 Micll., 526.
Guardian and Ward, 1975; Mortgage of Lands, 2357, 2394.
Niles, Bank of Michigan v.
Niles, Graves v.
Niles v. Ransford, I 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., 462, 491.
Niver, Shafer v.




4~4                    TABLE OF CASES.
Nixon, Middlesworth v.
Norris, Evans v.
Norris v. Hill, 1 Mich., 202.
Contracts, 666; Deed, 1015; Equity, 1143, 1148, 1228; Notice, 2429.
Norris v. Hurd, Wal. Ch., 102.
Equity, 1153, 1255; Evidence, 1653, 1655.
Norris v. Showerman, Wal. Ch.. 206.
Contracts, 669, 670 i Equity, 1231.
Affirmed, 2 Doug., 16.
Norris v. Showerman, 2 Doug., 16.
Contracts, 664, 669, 672; Notice, 2428; Possession of Lands, 2594;
Specific Performance, 2995; Water Rights, 3235.
North American Mining Co., Mandlebaum v.
North Western Insurance Co., Brady v.
Norton, Fox v.
Norton, Fralick v.
Norton, Wyngert v.
Norvell v. McHenry, 1 Mich., 227.
Evidence, 1791, 1792, 1794, 1812; Practice in Circuit Courts, 2631,
2727.
Cited, 2 Mich., 374.
Nye,  Arnold v.
Nye v. Van Husan, 6 Mich., 329.
Assignment, 237, 244, 246 to 250; Fraud, &c., 1884.
Cited, 7 Mich., 523.
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, 2756, 2781, 2814, 2817.
O'Flynn v. Eagle, 8 Mich., 136.
Practice in Supreme Court, 2782, 2783.
O'Flynn v. Holmes, 7 Mich., 454
Practice in Supreme Court, 2782.
Approved, 8 Mich., 137.
O'Flynn v. Holmes, 8 Mich., 95.
Practice in Circuit Courts, 2702, 2705, 2707.
O'Flynn, Jenny v.
O'Hara, Cullen 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., 1882, 1884, 1886; Mortgage of Chattels, 2307.
Cited, 7 Mich., 158, 524; 8 Mich., 48.
Oliver, Symes v.
O'Malley, Dousman v.
Oregon Township, Marathon Township v.
O'Reiley, Crane v.
Orr v. Lacey, 2 Doug., 230.
Comity between States, 549; Conflict of Laws, 571; Contracts, 683;
Corporations, 719, 721; Evidence, 1660; Fraud, &c,, 1884; Practice in Circuit Courts, 2654; Usury, 3195.
Ortman v. Greenman, 4 Mich., 291.
Officer, 2435.




TABLE OF CASES.                          45
Osborne v. Robbins, 10 Mich., 277.'
Attachment, 299 to 302.
Cited, 10 Mich., 522.
Osman, Stevens v.
Otis, Facey v.
Outhwite v. Porter, 13 Mich., 533,
Bills and Notes, 383; Equity, 1536.
Overall v. Pero, 7 Mich., 315.
Justices' Courts, 2150.
Cited, 9 Mich., 147,
Overyssel Township, People v.
Owen, Day v.
Owen v. Farmers' Bank of Sandstone, 2 Doug., 134.
Note to Cahill v. Kalamazoo Mutual Insurance Co. [as to proof of
corporation.]
Owen, Kinnie v.
Owners of Ship Milwaukee v. Hale, 1 Doug., 806.
See Ship Milwaukee, Owners of, v. Hale.
Pack, Reeve v.
Paddock v. Pardee, 1 Mich., 421.
Contracts, 669, 672; Deed, 1006, 1008, 1010.
Paddock v. Matthews, 3 Mich., 18.
Attachment, 296,
Cited, 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.
Cited, 13 Mich., 300, 302.
Paige, Gilkey v.
Paine, Bliss v.
Paine, Wetherwax v.
Palmer et. al., appellants, 1 Doug., 422.
Estates of Deceased Persons, 1599; Vendor and Purchaser, 3213,
3214.
Palmer, Brewer v.
Palmer, Howard v.
Palmer, Jones v.
Palmer, Moran v.
Palmer v. Oakley, 2 Doug., 483.
Estates of Deceased Persons, 1609; Guardian v. Ward, 1967 to 1974,
1980.
Cited, 2 Doug., 507.
Palmer v. Rich, 12 Mich., 414.
Drainage Laws, 1075, 1076; Equity, 1178, 1254, 1270, 1271, 1376, 1379,
Palms v. Campau, 11 Mich., 109.
Certiorari, 512.
Palmyra and Jacksonburgh Railroad Co., Southworth v.
Pardee, Paddack v.
Parker v. Copland, 4 Mich., 528.
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 CASES,
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, Fuller v.
Parsons, Bingham v.
Parsons v. Copland, 5 Mich., 143, 144,
Practice in Supreme Courts, 2760.
Parsons, Davenport v.
Parsons, Rawson v.
Parsons v. Russell, 11 Mich., 113.
Boat and Vessel Law, 449; Constitutional Law, 622 to 624.
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, 1432; Vendor and Purchaser, 3213, 3215.
Payne v. Avery, 12 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, 2747,
Peckham v. Buffam, 11 Mich., 529.
Equity, 1242, 1474.
Cited, 13 Mich., 372.
Pegg v, Bidleman, 5 Mich., 26.
Bills and Notes, 423, 424.
Peltier v. Peltier, Har. Ch., 19.
Alimony, 97; Equity, 1366, 1388, 1434.
Pendell, Bresler v.
Penniman, Maynard 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, 2395.
People v. Adwards, 5 Mich., 22.
Criminal Law, 801 to 803; Questions Reserved, 2871, 2872.
Cited, 5 Mich,, 68.
People, Annis v,




TABLE OF CASES.                          47
People, Ash v.
People v. Auditor-General, 1 Doug., 426.
Taxation, 3120,
People v. Auditor-General, 3 Mich., 427.
Mandamus, 2247; Taxation, 3119.
People v. Auditor-General, 5 Mich., 193.
Justices of Supreme Court, 2191.
People v, Auditor-General, 7 Mich., 84.
Constitutional Law, 634; Vendor and Purchaser, 2209.
People v. Auditor-General, 9 Mich., 134.
Taxation, 3087, 3088.
People v. Auditor-General, 9 Mich., 141.
County Treasurer, 767; Taxation, 3121.
People v. Auditor-General 12 Mich, 171.
Constitutional Law, 643, 644.
People v. Auditors of Wayne, 5 Mich., 223.
Judgments, 2095; Mandamus, 2244, 2256.
Cited, 8 Mich., 379.
People v. Auditors of Wayne, 10 Mich., 307.
Board of Supervisors, 431.
People v. Auditors of Wayne, 13 Mich., 233.
Board of Supervisors, 432; Constitutional Law, 645 to 647,
People v. Bank of Pontiac, 12 Mich., 527.
Banks and Banking, 361, 362; Corporations, 7839, 741 to 7438
People v. Bates, 11 Mich., 362.
Elections, 1094 to 1096.
People, Beach v.
People v. Beaubien, 2 Doug., 256.
Ways, 3244 to 3246, 3249 to 3251.
Cited, 3 Mich., 16; 6 Mich., 183, 184; 11 Mich., 246.
People v. Blodgett, 13 Mich., 127.
Constitutional Law, 605, 639.
Cited, 13 Mich., 501.
People v. Brigham, 2 Mich., 550,
Criminal Law, 871, 872.
Cited, 5 Mich., 83.
People, Bromley v.
People v. Brown, 2 Doug., 9.
Bond, 468.
People, Burnham v.
People v. Burns, 5 Mich., 114.
Counties, 758; Statutes, 3050,
Cited, 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., 273.
Governor and Judges, 1936, 1937; Ways, 3239, 3242.
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, 8 Mich, 343.
Constitutional Law, 608, 609, 654.




AW48                  TABLE OF CASES
People v. Cook, 10 Mich., 164.
Criminal Law, 915, 916; Practice in Circuit Courts, 2661.
People v. Connor, 13 Mich., 238.
Quo Warranto, 2893.
People v. Cornwell, 13 Mich., 427.
See Crosswell v. People.
People, Crippen v.
People, Cross v.
People, Daniels v.
People v. Davidson, 2 Doug., 121.
Schools, 2963.
Cited, 13 Mich., 107,
People, Delany v.
People v. Dennis, 4 Mich., 609.
Evidence, 1795; Pleadings, 2571; Recognizance, 2903, 2908, 2909,
2911.
Cited, 6 Mich., 386, 387.
People v. Detroit and Pontiac Railroad Co., 1 Mich., 458
Taxation, 3122.
People, Dillin v.
People v. Doe, 1 Mich., 451.
Criminal Law, 774; Practice in Circuit Courts, 2650 to 2652; Statutes, 3053, 3054, 3060.
People, Drennan v.
People, Durant v.
People, Elliott v.
People, Evans v.
People v. Farwell, 4 Mich., 556.
Certiorari, 530.
Cited, 12 Mich., 115,
People, Findley v.
People v. Foote, 1 Doug., 102,
Justices' Courts, 2148, 2149.
Cited, 1 Mich., 16; 7 Mich., 317.
People v. Fralick, 12 Mich., 234.
Judgments, &c., 2111, 2112.
People v. Gallagher, 4 Mich., 244.
Constitutional Law, 605, 606, 652, 655.
Citedr 5 Mich., 258; 13 Mich., 153, 162) 501,
People v. Garlock, 5 Mich., 284.
Circuit Judges, 544.
People v. Gay, 2 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., 276.
Taxation, 3120.
People, Harlan v.
People v. Hart, 1 Mich, 467.
Criminal Law, 889,
People v. Hartwell, 12 Mich., 508,
Detroit City, 1046; Elections, 1099; Quo Warranto, 2882, 2891.




TABLE OF CASES.                          49
People v. Hawley, 3 Mich., 330.
Constitutional Law, 602, 652; Prohibitory Liquor Law, 2854.
People, Hibbard v,
People, Hicks v.
People v. Higgins, 3 Mich., 233,
Elections, 1090, 1091, 1098.
People, Hoch v.
People v. Hoffman, 3 Mich., 248,
Prohibitory Liquor Law, 2855,
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, 2033.
Cited, r8 Mich., 368; 9 Mich., 381, et seq.; 10 Mich., 478.
People, Howard v.
People v. Inspectors and Agent of State Prison, 4 Mich., 187.
Mandamus, 2246, 2249; State Prison, 3047.
Cited, 13 Mich., 551.
People, Jackson v.
People v. Jackson, 7 Mich., 432.
Ways, 3257 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 Road Co., 9 Mich., 285.
Constitutional Law, 603, 604; Plank Road Companies, 2520 to 2524.
Cited, 11 Mich., 169.
People v. Jenness, 5 Mich., 305.
Constitutional Law, 615; Criminal Law, 854 to 856, 919, 928; Error,
1545; Evidence, 1749, 1750.
People, Jennings v.
People v. Jerome, I Mich., 142.
Libel, 2219.
People v, Jones, 6 Mich., 176.
Detroit City, 1027, 1028; Ways, 3243 to 3248.
Cited, 9 Mich., 126; 12 Mich., 405.
People v. Judges of Branch Circuit Court, 1 Doug., 319.
Certiorari, 511; Mandamus, 2240, 2241.
People v. Judges of Calhoun Circuit Court, 1 Doug., 417.
Attachments, 270, 276 to 278; Mandamus, 2242; Practice in Circuit
Courts, 2712, 2713, 2728.
People v. Judges of Cass Circuit Court, 2 Doug., 116.
Certiorari, 531.
People v. Judges of Jackson Circuit Court, 1 Doug., 302,
Mand amus, 2252; Practice in Circuit Courts, 2712a; Replevin, 2955.
People v. Judges of Macomb Circuit Ccurt, I Mich., 134.
Appeal from Justices' Courts, 159.
People v. Judges of Washtenaw Circuit Court, 1 Doug., 434.
Action, 77; Mandamus, 2243; Practice in Circuit Courts, 2632, 2633,
2711.
Followed, 13 Mich., 206.
People v. Judge of Wayne Circuit Court, 13 Mich., 206.
Practice in Circuit Courts, 2633.
People v. Judge of Wayne County Court, 1 Mich,, 359.
Certiorari, 527; Mandamus, 2246.




UV0                   TAB3LE. OF CASES,
People v. Kent, 1 Doug., 42.
Criminal Law, 812, 813.
People v. Kimball, 4 Mich., 95.
Constitutional Law, 648.
People v. Knight, 13 Mich,, 230,
Quo Warranto, 2881.
People v. Knight, 13 Mich., 424.
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, 2680, 2725, 2726.
People v. Lord, 9 Mich., 227.
Judge of Probate, 2079 to 2082.
People v. Mahaney, 13 Mich., 481.
Constitutional Law, 006, 631 to 633, 640 to 642; Evidence, 1818;
Statutes, 3073.
People, Maher v.
People v. May, 3 Mich., 598.
Prosecuting Attorney, 2861,
People v. Mayworm, 5 Mich., 146.
Elections, 1093; Quo Warranto, 2884; Sherifft; 2975.
People v. McDonald, 9 Mich., 150.
Criminal Law, 798 to 800.
Cited, 13 Mich., 432.
People v. McKinney, 9 Mich., 444.
Criminal Law, 939.
People v. McKinney, 10'Mich., 54.
Criminal Law, 819 to 830, 914; Error, 1587; Evidence, 1796.
Cited, 11 Mich., 341; 13 Mich., 448.
People v. Michigan Southern Railroad Co., 3 Mich., 496.
Eminent Domain, 1103, 1104; Mich. S. R. R. Co., 2270.
Followoed, 3 Mich., 508.
People v. Michigan Southern and Northern Indiana Railroad Co., 4
Mich., 398.
Mich. S. R. R. Co., 2271 to 2276.
See 9 Mich., 450.
People v. Miles, 2 Mich., 348.
Quo Warranto, 2885.
People v. Millspaugh, 11 Mich., 278.
Criminal Law, 851, 852.
People v. Moore, 2 Doug., 1.
Arrest, 207, 208.
People, Moore v.
People, Morrissey v.
People v. Oakland County tank, 1. Doug., 282.
Banks and Banking, 341, 3843; Corporations, 719, 720, 732, 737, 740;
Quo Warranto, 2886.
Cited, 12 Mich., 91.
People v. Plumsted, 2 Mich., 465.
Homestead, 1986, 1987.
Cited, 7 Mich., 505.
People v. Police Justice of Detroit, 7 Mich., 456.
Police Court of Detroit, 2592.
People, Pond v.




TABLJE  OF "ASES.                        51
People v. Potter, 5 Mich., 1.
Criminal Law, 791, 793.
Cited, 6 Mich., 292; 8 Mich., 337.
People, Pullen v.
Peo)ple v. Quarter-Miaster General, 12 Mich., 191.
Bounty, 475.
People v. Quarter-Master General, 13 Mich., 247.
Bounty, 477, 478.
People v. Quarter-Master General, 14 Mich.
Bounty, 476.
People v. Regents of the University, 4 Mich., 98.
Mandamus, 2249; University of Michigan, 3189.
Cited, 13 Mich., 550.
People v. Reynolds, 2 Mich., 422.
Criminal Law, 815, 816; Practice in Circuit Courts, 20t.
People v. Richards, 1 Mich., 216.
Criminal Law, 833 to 836.
Cited, 4 Mich., 432.
People v. River Raisin and Lake Erie R. R. Co., 12 Mich., &3.
Banks and Banking, 342; Corporations, 719, 722; Evidence, 1817;
Pleadings, 2545; Quo Warranto, 2887, 2888, 2892.
Cited, 13 Mich., 492.
People v. Rix, 6 Mich., 144.
Officer, 2487, 2438..
People v. Rutan, 3 Mich., 42.
Recognizance, 2902, 2904, 2905.
Cited, 6 Mich., 885.
People v. Sackett, 14 Mich.
Quo Warranto, 2894, 2895.
People v. Scott, 6 Mich,, 287.
Criminal Law, 793, 795; Error, 1548; Practice in Circuit Courts,
2664.
Cited, 8 Mich., 337; 13 Mich., 95.
People, Shannon v.
People v. Simonson, 9 Mich., 492.
Appeal from Chancery, 111,
People v. Simonson, 10 Mich., 335.
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, 3 Mich., 544.
Banks and Banking, 365, 366, 367.
People v. State Treasurer, 4 Michi., 27.
Banks and Banking, 363, 364.
People v. State Treasurer, 7 Mich., 366.
State Lands, 3044 to 3046.
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., 309; 13 Mich., 237.
People v. Taylor, 2 Mich., 250.
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, 2880.
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, 2253 to 2255; Townships, 3159; Ways,
-3265, 3266; 3270.
Cited, 8 Mich., 379.
People v. Township Board of Lowell, 9 Mich., 144..Ways, 3271, 3272.
People v. Township Board of Overyssel, 11 Mich., 222.
Principal and Agent, 2827, 2828.
People v. Township Board of Scio, 3 Mich., 121.
Ways, 3264.
People v. Township Board of Springwells, 12 Mich., 434.
Costs, 752; Ways, 3267, 3268.
People v. Township Board of Springwells, 13 Mich., 246.
Certiorari, 521.
People v. Township Board of Springwells, 13 Mich., 462.
Ways, 3269.
People v. Township Board of Zilwaukie, 10 Mich., 274.
Ways, 3275.
People v. Treasurer of Detroit, 8 Mich., 14.
Taxation, 3140.
People v. Treasurer of Wayne County, 8 Mich., 392.
Library Moneys, 2223; Practice in Supreme Court, 2810
People v. Tryon, 4 Mich., 665.
Criminal Law, 846.
People, Tulley v.
People v. Tyler, 7 Mich., 161.
Admiralty Courts, &c.. 79 to 86; Criminal Law, 896.
Cited, 8 Mich., 331 to 341.
People, Tyler v.
People v. Van Cleve, 1 Mich., 862.
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,, 393.
Probate Court, 2851; Prohibition, 2853,
People v. Webster, 2 Doug., 92.
criminal Law, 888.
People v. Wells, 8 Mich., 104 
Criminal Law, 887; Practice in Circuit Courts, 2668.




TABLE OF CASES.
People v. Whittemore, 2 Mich., 306Constitutional Law, 660.
People v, Whittemore, 4 Mich:, 27.
See People v. State Treasurer.
People v. Wilson, 12 Mich., 25.
Practice in Circuit Courts, 2720.
Peoria Marine and Fire Insurance Co. v. Hall, 12 Mich., 202
Insurance, 2058 to 2066.
Perce, Penniman v.
Perkins v. Dacon, 13 Mich., 81.
Vendor and Purchaser, 3206.
Perkins v. Perkins, 10 Mich., 425.
Appeal from Chancery, 120.
Perkins v. Perkins, 12 Mich., 456.
Divorce, 1057; Equity, 1242.
Perkins, Snow v.
Perkins v. Spalding, 2 Mich., 157.
Judgments, 2086, 2088 to 2091.
Perkins v. Superintendents of Poor of Lapeer, 1 Mich., 504.
Certiorari, 509.
Pero, Overall v.
Perry v. Hepburne; 4 Mich., 165.
Limitation of Actions, 2235; Revised Statutes of 1846, 2962.
Cited, 5 Mich., 50.
Peters, Bancroft v.
Pettibone v. McGraw, 6 Mich., 441.
Equity, 1207, 1208; Plank Road Companies, 2525 to 2527.
Pettibone, McGraw v.
Pettit, Jewett v.
Pew v. Yoare, 12 Mich., 16.
Attachment, 279; Pleadings, 2568, 2569.
Phelps, Jones v.
Phenix v. Clark, 2 Mich., 327,
Replevin, 2935, 2946, 2951.
Phillips, Curtis v.
Phillips, De Armand v.
Phillips, Woodruff v.
Phoenix Insurance Co. v. Allen, 11 Mich.,501.
Bills and Notes, 392, 393, 401, 402,403, 427.
Cited, 13 Mich., 192.
Phcenix Insurance Co. v. Gray, 13 Mich., 191.
Bills and Notes, 404.
Picard v. McCormick, 11 Mich., 08.
Evidence, 1764; Fraudulent Representations, 1896 to 1898; Pleadings, 2553, 2554; Vendor and Purchaser, 3203.
Pickard v. Polhemus, 3 Mich., 185.
Practice in Circuit Courts, 2692.
Pidge, Wallace v.
Pierson, Baker v.
Pierson v. Manning, 2 Mich., 445.
Assignment, 213, 219, 222, 224, 238, 240, 244; Fraud, &c., 1869.
Cited, 7 Mich., 530.
Pine, Moyer v.
Place v. Grant, 9 Mich., 42.
Mortgage of Chattels, 2303.
Place, Hammond v.
Platt v. Drake, 1 Doug., 296.
Bills and Notes, 405, 406.
xptlained, 2 Doug., 425; Cited, 2 Mich,, 240, 241; 4 Mich., 8$9;
Overruled, 9 Mich.,211. See 13 Mich., 278.




ABLE OF CASES.
Platt, Hunton v.
Platt v. Stewart, 10 Mich., 260.
Equity, 1533, 1535; Evidence, 1784; Jurisdiction, 2130.
Plumsted, People V.
Polhemus, Pickard v.
Police Justice of Detroit, People v.
Pond v, People7 8 Mich., 150.
Criminal 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 v.
Porter v. Henderson, 11 Mich., 20.
Slander, 2990 to 2992.
Porter v. Hodenpuyl, 9 Mich., 11..Principal and Surety, 2838.
Porter v. Kimball, 1 Mich., 239.
Pleadings, 2584, 2588.
Porter, Outlhwite v.
Porter, Warner v,
Port Huron and Milwaukee Railway Co., White v.
Port Huron Log Driving and Booming Co., Ames v
Port Huron Log Drivingand Booming Co., Beard v,
Post, Colman v.
Potter, Carroll v.
Potter, People v.
Poupard, Beaubien v.
Poupard, Bergh v.
Power, Cargill v.
Pratt v. Bank of Windsor, Har, Ch., 254.
Equity, 1389,
Pratt v. Campbell, Har. Ch., 236.
Principal Agent, 2821,
Pratt v. Tefft, 14 Mich.
Dower, 1065.
Prentis v. Rice, 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, 270f,
2704, 2706, 2718.
Preitiss, 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,
Attorneys, &c., 308.
Price v. Hopkln, 13 Mich., 318.
Constitutional Law, 635, 636; Statutes, 3065, 3066.
Provincial Insurance Co., Johnson v,
Pullen v. People, 1 Doug., 48.
Evidence, 1664.
Cited, 11 Mich., 330, 342.'Putnam, Kellogg v.
Quackenb6ss v. Campbell, Wal. Ch., 525.
Estates of Deceased Persons, 1591.
quartermaster-Geneeal, People v.




TABLE 07? CASES.                          55
Quinlon v. Rogers, 12 Mich., 168.
Constitutional Law, 627.
Cited, 13 Mich., 340.
Quirk v. Thomas, 6 Mich., 76.
Equity, 1157; Recording Laws, 2922.
Ramsdellv. Eaton, 12 Mich., 117.
Equity, 1247, 1276, 1507.
Ramsdell v. Millard, Har. Ch., 373.
Ramsdell, Millard v.
Randall, Dougherty v.
Ransford, Niles v.
Ransom, Davis v.
Rasco, Farr v.
Rash v. Whitney, 4 Mich., 495.
Error, 1562; Evidence, 1672, 3333; Justices' Courts, 2183 to 2185.
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., 240.
Bills and Niotes, 399.
Reeves, Loree v.
Reeves, Millerd v.
Reeves v. Scully, Wal. Ch., 248.
Mortgage of Lands, 2358.
Cited, 5 Mich., 519.
Reeves v. Scully, Wal. Ch., 340Q.
Equity, 1513.
Regents of the University v Board of Education of Detroit, 4 Mich.,
213.
University of Michigan, 3185, 3186,
Cited, 12 Mich., 162, 164.
Regents of the University v. Detroit Young Men's Society, 12 Mich.,
138.
Contracts, 679; Corporations, 723; Pleadings, 2547 to 2551; Tuni
versity of Michigan, 3187, 3188.
Regents of the University, People v.
Reynolds v. Green, 10 Mich., 355.
Equity, 1306, 1307.
Reynolds, People v.
Rhodes, Niles v.
Rice, Carroll v.
Rice, Prentiss v.
Rice, Robinson v.
Rice v. Ruddiman, 10 Mich., 125.
Counties, 753; Deed, 1016; Evidence, 1705; Statutes, 3064.
Cited, 10 Mich, 252, 258; 13 Mich., 327.
Rice, Wheelock v.
Rich, Palmer v.
Richards, People v.
Richardson v. Yawkey, 9 Mich., 139.
Practice in Circuit Courts, 2734.
Richardson, Yawkey v.
Richmond v. Robinson, 12 Mich., 193.
Dower, 1068; Specific Performance, 3004, 3016, 3025.




56                    TABLE' OF  t OASES.
Rider, Davis v.
Riggs, Sage v.
Riker, Western Massachusetts Insurance v.
Ripley, Daniels v.
Rivard, St. Armor v.
River Raisin and Grand River Railroad Co., Wells v.
River Raisin and Lake Erie Railroad Co., People v.
Rix, People v.
Robbins, Osborne v.
Roberts v. Miles, 12 Mich. 297.
Equity, 1122, 1123, 1347 to 1350.
Robertson, Crittenden v.
Robertson v. Little, 10 Mich., 371.
Practice in Circuit Courts, 2738, 2739.
Robinson, Baxter v.
Robinson v. Godfrey, 2 Mich., 408.
Contracts, 694.
Cited, 3 Mich., 617, 618.
Robinson v. Rice, 3 Mich., 285.
Conflict of Laws, 575.
Cited, 5 Mich., 391.
Robinson, Richmond v.
Robinson v. Steamboat Red Jacket, 1 Mich., 171.
Statutes, 3802.
Cited, 1 Mich., 475.
Robinson Estate, Matter of, 6 Mich., 137.
Certiorari, 516; Practice in Supreme;Court, 2759, 2800; Probate
Courts, 2849, 2850.
Rockwell, Howard v.
Rockwell v. Hubbell's Administrators, 2 Doug., 197.
Constitutional Law, 597; Judgments, 2113.
Roelofson v. Hatch, 3 Mich., 277.
Attachment, 260, 265, 274.
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, 2428; Possession of Lands, 2594.
Rtood v. Jones, 1 Doug., 188.
Consideration, 579 to 581.
Rood v. School District No. 7,- 1 Doug., 502.
Justices' Courts, 2154 to 2156.
Cited, 8 Mich., 209; 7 Mich., 817.
Rood v. Winslow, Wal. Ch., 340.
Mortgage of Lands, 2333.
Affrme, 2 Doug., 68.
Rood v. Winslow, 2 Doug., 68.
Duress, 1077; Mortgage of Lands, 2333; 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, 2402.
Rose v. Lewis, 10 Mich,, 483.
Damages, 983; Error, 1551; Evidence, 1836; Practice in Circuit
Courts, 2745.




TrABLE O1  CASES;                        57
Rosenbury v. Angell, 6 Mich., 508,
Pleadings, 2.576, 2584, 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., B.
Equity, 1111, 1167; Taxation, 3110, 3113.
Cited, 2 Doug., 205; 1 Mich, 316;'2 Mich., 493.
Royce v. Bradburn, 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, 1502, 1503; Mortgage of Lands, 2344, 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.
Safford v. 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 v. 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, 2805.
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, 1468, 1464, 1506; Evidence, 1692.
Sawyer v. Studley, Wal. Ch., 153.
Equity, 1512.
Saxe, Buckley v.
Scales v. Griffin, 2 Doug., 54.
Mechanics' Lien, 2264, 2265.




58                     TABL]E 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, 1316; Mortgage of Lands, 2338, 2383,
Cited, 1 Mich., 344.
Schwarz, Sears v.
Schwarz v. WVendell, Har. Ch., 395.
Equity, 1325, 1326.
Schwarz v. Wendell, Wal. Ch., 267.
Contracts, 674; Equity, 1215, 1243 to 1345, 1472; Trusts, 3181, 3182.
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, 1929 to 1935; Ordinance of 1787, 2448, 2449 - Powers,
2619, 2620; Principal and Agent, 2822; State of Michigan, 3037;
Taxation, 3113.
Cited, 2 Doug., 205; 1 Mich., 316; 2Mich., 493; 4 Mich., 221, 229;
9 Mich., 343.
Scott, Harrington v.
Scott, Johnstone v.
Scott, People v.
Scott v. Scott, 5 Mich., 106.
Practice in Supreme Court, 2768.
Scott v. Scott, 5 Mich., 249.
Practice in Supreme Court, 2803.
Scott v. Smart's Executors, 1 Mich., 295.
Constitutional Law, 605; Jurisdiction, 2138; Statutes, 3062.
Cited, 5 Mich., 258; 13 Mich., 153, 501.
Scott, Wells v.
Scribner v. Doseman, 5 Mich., 283.
Practice in Supreme Court, 2770.
Scribner v. Gay, 5 Mich., 511.
Practice in Supreme Court, 2776 to 2780.
Cited, 8 Mich., 138.
Scully, Reeves v,
Sears v. Cottrell, 5 Mich.; 251.
Constitutional Law, 605, 507, 620, 621.
Cited, 5 Mich., 419; 8 Mich., 297, 333; 11 Mich., 132, 133; 13 Mich.,
150, 162, 501,
S ~ar v. Schwarz, 1 Doug., 504.
Equity, 1376.
Sears, Schwarz v,
Sears v. Smith, 2 Mich., 243.
Payment, 2493; Vendor and Purchaser, 3213, 3214.
Second National Bank v. Williams, 13 Mich., 282,
Assignment, 211; Donatio Causa Mortis, 1061.
Secor, Hotchin v.
Seeley, Groesbeck v.
Selby, Matter of, 6 Mich., 193.
Public Lands, 2864 to 2870.
Sellers v. Botsford, 9 Mich., 490.
Appeal from Chancery, 131.




T1ABLE:OF CASES.
Sellers v. Botsford, 11 Mich., 59.
Usury, 3194.
Seymour v. Jerome, Wal. Ch., 356.
Equity, 1492, 1493.
Seymour, Jerome v.
Seymour, Morrill v.
Shadbolt v. Bronson, 1 Mich., 85.
Jurisdiction, 2137.
Shafer v. Niver, 9 Mich., 253.
Land Contract, 2202; Mortgage of Lands, 2395.
Shannon, v. People, 5 Mich., 36.
Criminal Law, 936.
Shannon v. People, 5 Mich., 71
Criminal Law, 804 to 809, 914, 920.
Cited, 10 Mich., 89; 11 Mich., 336.
Shaw v. Davis, 7 Mich., 318.
Contracts, 702; Evidence, 1755; Practice in Circuit Courts, 2663.
Shaw, Hewlett v.
Shaw v. Moser, 3 Mich., 71.
Appeal from Justices' Courts, 168, 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, 2218.
Sherlock, Thayer v.
Sherman, Buck v.
Sherman, Farr v.
Sherman, Hogan v.
Ship Milwaukee, Owners of, v. Hale, 1 Doug., 306.
Boat and Vessel Law, 440, 441;'Pleadings, 2581; Practice in Circuit Courts, 2638, 2644 to 2647; Waiver, 3224.
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,
3112, 3114, 3118.
Cited, 4 Mich., 151, 158, 448, 598; 5 Mich., 154.
Sill v. Ketcham, Har. Ch., 423.
Equity, 1262.
Cited, 6 Mich., 73; 8 Mich., 230; 12 Mich., 350,
Simmons v. McDowell, Wal. Ch., 175.
See Wing v. McDowell.
Simmons v. Simmons, 8 Mich., 318.
Breach of Promise to Marry, 482 to 484.
Simonson, People v.
Sinclairv. Comstock, Hat, 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., 371.
Error, 1549; Evidence, 1722; Practice in Circuit Courts, 2648,
2676.
Smalley v. Bristol, 1 Mich., 153.
Pleadings, 2537.
Smalley v, Masten, 8 Mich., 529.
Judgments, &c., 2114.
Smart v. Howe, 3.Mich., 590.
Affidavit, 94; Appeal from Justices' Courts, 162, 171.
Smart's Executors, Scott v.
Smith v. Austin, 9 Mich., 465.
Equity, 1300 to 1303.
Smith v. Austin, 11 Mich., 84,
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, 2 Mich., 115,
Religious Societies, 2932.
Smith v. Brown, 2 Mich., 161.
Equity, 1470; Witness, 3302, 3';03.
Smith, Bryan v.
Smith, Burpee v.
Smith v, Canfield, 8 Mich., 493.
Partnership, 2474.
Smithv. Cicotte, 11 Mich., 383.
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 Railroad 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.
Smithv. 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 v.
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.




TABLIE (OF CASES.                        61
Smith v. Thompson, Wal. Ch,, 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, 2400.
Cited, 2 Mich., 182; 13 Mich., 499.
Smith v. Warner, 14 Mich.
Practice in Circuit Courts, 2698; Set Off, 2969.
Snook, Batty v.
Snook v. Davis, 6 Mich., 156.
Fraud, &c., 1882, 1888; Replevin, 2950.
Cited, 6 Mich., 465.
Snow v. Perkins, 2 Mich., 238.
Bills and Notes, 408, 412, 413; Certiorari, 524; Conflict of Laws,
571.
Cited, 5 Mich., 538.
Snow, Weed v.
Snyder, Peck v.
Snyder v. Snyder, 6 Mich., 470.
Dower, 1070 to 1072.
Snyder, Taaylor v.
Soldan, Chaffee v.
Sorrel v. Brewster, 1 Mich., 373.
Principal and Agent, 2823.
Soule, Hall v.
Soule, Lewis v.
Southworth, Lothrop v.
Southworth v. Palmyra and Jacksonburgh R.R. Co., 2 Mich., 287.
Constitutional Law, 659.
Spafford v. Beach, 2 Doug., 150.
Judgments, 2087, 2093, 2098,21.04, 2105.
Cited, 2 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, 1982,
Spaulding, Perkins v.
Spear v. Carter, 1 Mich,, 19.
Jurisdiction, 2136; Justices Courts, 2145, 2175, 2176.
Cited, 1 Mich., 160.
Specht, May v,
Spencer, Mills v.
Spencer, Wetherell v.
Spier v. McQueen, 1 Mich., 252.
Limitation of Actions, 2232.
Spies v. Newberry, 2 Doug., 425.
Bills and Notes, 407.
Sprague, Thomas v.
Squierv. Hydliff, 9 Mich., 274
Infant, 2043.
Squires, Hatch v.
Stadlerv. City of Detroit, 13 Mich., 346.
Detroit City, 1042; Officer, 2441, 2442.
Stadler v. Moors, 9 Mich., 264.
Justices' Courts, 2165, 2166.




62          ~         TA:IBLE OF OASES.
Staffordv. Hulbert, Har. Ch., 435.
Equity, 1191.
Cited, Wal. Ch., 1,
Stanton, Dodge v.
Stanton, Gregory v.
Staples, Jones v.
Starkweather, Ingerson v.
Starkweather v, Smith, 6 Mich., 377.
Evidence, 1717; Husband and Wife, 2016.
Cited, 9 Mich., 75.
St. Armour v. Rivard, 2 Mich., 294.
Wills, 3287 to 3290.
State Auditors, People v.
State of Michigan v. How, 1 Mich., 512.
Banks and Banking, 347.
Cited, 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, 32, 33; Confusion of Goods, 577; Public Lands, 2856.
Stevens v. Brown, Wal. Ch., 41.
Constitutional Law, 600; Mortgage of Lands, 2339, 2360.
Cited, Wal. Ch., 172; 7 Mich., 62; 11 Mich,, 255.
Stevens, Doyle v.
Stevens, Gard v.
Stevens v. Osman, 1 Mich., 92.
Pleadings, 2589; Replevin, 2944.
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, 2755.
Steward v. Stevens, Har. Ch., 169.
Equity, 1191.
Cited, Wal. Ch., 4.
Stewart, Comstock v.
Stewart v. Hill, 1 Mich., 265,
County Courts, 764.
Stewart, People v.
Stewart, Platt v.
Stewart, Whipple v.
Stoddard, Smith v.
Stockman, Highway Commissioners v.
Stockton v. Williams, Har. Ch., 241.
Equity, 1442.
Cited, Wal. Ch., 75.
Stockton v. Williams, Wal. Ch., 120.
Equity, 1114,1168, 1397, 1466; Evidence, 1739,- 1768; Grants, 1940
to 1942; Treaty, 3164..fflirmed, 1 Doug., 546.




TABLE OF CASES.                           63
Stockton v. Williams, 1 Doug., 546.
Adverse Possession, 88; Equity, 1169, 1170; Estoppel, 1620; Evidence, 1736; Grants, 1940 to 1942; Treaty, 3164.
Cited, 2 Mich., 212; 9 Mich., 381, et seq,
Stoddard, Smith v.
Stokes v. Jacobs, 10 Mich., 290.
Practice in Supreme Court, 2797.
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, 1052, 1053.
Cited, 6 Mich., 286.
Stout v. Keyes, 2 Doug., 184.
Action, 25; Common Law, 552; Justices' Courts, 2168.
Cited, 8 Mich., 25.
Stowell, 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., 523; 12 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., 229; 5 Mich., 210,
Sutliff, Dunn v.
Sutton v. Facey, 1 Mich., 243.
Physicians, 2506.
Sutton v. Hanford, 11 Mich., 513.
Assignment, 239, 243.
Sutton, Lester v.
Suydam v. Dequindre, Har. Ch., 347.
Assignment, 221, 251; Equity, 1255.
Suydam v. Dequindre, Wal. Ch., 23.
Equity, 1416, 1454, 1455, 1458; Estates of Deceased Persons, 1616.
Swan v. Williams, 2 Mich., 427.
Eminent Domain 1101, 1102, 1106; Territorial Council, 3149.
Cited, 2 Mich., 49i; 4 Mich., 229; 5 Mich., 274, 281.
Sweet, People v,




64                    TABLE OF 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; Replevin, 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, 2318.
Cited, 7 Mich., 23, 25.
Swift, Thayer v.
Symes v. Oliver, 13 Mich., 9.
Damages, 978.
Taft v. Hosmer, 14 Mich,
Wills, 3293.
Taff 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, 2979 to 2985.
Taylor, Leonard v.
Taylor, People v.
Taylor v. Snyder, Wal. Ch., 490.
Equity, 1252, 1264, 1405.
Tefft 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, 2790.
Teller v. Wetherell, 9 Mich., 464.
Action, 42; Judgments, 2083.
Teller v. Willis, 12 Mich., 268.
Error, 1580.
Teller v. Willis, 12 Mich., 384.
Error, 1581 to 1583.
Ten Eyck v, Wing, I Mich., 40.
Limitation of Actions, 2225 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., 200.
Equity, 1242 1299, 1473; Estates of Deceased Persons, 1592, 1615;
Partnership, 2471.
Cited, 6 Mich., 219; 13 Mich., 372,
Thayer v. Peop!e, 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. Ch., 1.
Thayer v. Swift, Wal. Ch., 384.
Equity, 1438 to 1441.
Thomas, Chappee v.
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, 1827; Evidence, 1653.
Cited, 6 Mich., 135, as Thomas v. Graham.
Thomas, Lockwood v.
Thomas, Quirk v.
Thomas v. Sprague, 12 Mich., 120.
Garnishees, 1920, 1923; 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 t.
Thompson v. Mack, Har. Ch., 150.
Mortgage of Lands, 2336; Recording Laws, 2915, 2918.
Thompson v. Richards, 14 Mich.
Evidence, 1714, 1775; Waiver, 3220.
Thompson, Smith v.
Thompson v. Thomas, 11 Mich., 274.
Attachment, 272, 273.
Thorn, Hunt v.
Thorne v. Hilliker, 12 Mich., 215.
Equity, 1467.
Thurber v. Jewett, 3 Mich., 295.
Mortgage of Chattels, 2304; Tender, 3144, 3145.
Cited, 9 Mich., 44.
Thurber, Wat: on v.
Thurston v. Prentiss, Wal. Ch., 529.
Mortgage of Lands, 2327, 2328; Usury, 3192.
A4lirmed, 1 Mich., 193.
Thurston v. Prentiss, 1 Mich., 193.
Equity, 1491; Mortgage of Lands, 2327, 2328; Principal and Sure
ty, 2842, 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,, 113.
Error, 1585, 1586; Frauds, Statute of, 1910; Pleadings, 2538, 2589,
2557.
Tillman, May v.
Tillman v. People, 12 Mich., 401.
Dedication, 990; Ways, 3236, 3246, 3248, 3257, 3261, 3262.
Tinker v, McCauley, 3 Mich., 188.
Bills and Notes, 396; Guaranty, 1961, 1962,
Tisdale, People v.




O6P                  g:`TABLE OFP CASES,
Titus?. Minnesota Mining Co., 8 Mich., 183.
Principal and Agent, 2818.
Tivey v. People, 8 Mich., 128.
Statutes, 3067.
Toms, Waterman v.
Todd, Bonesteel v.
Topliff v. Vail, Har. Ch., 340.
Partnership, 2485 to 2487.
Torrey, Walton v.
Tower v. Detroit and Milwaukee Railway Co., 7 Mich, 10,
Practice in Supreme Court, 2806, 2807.
Tower v. Lamb, 6 Mich., 362.
Appeal from Justices' Courts, 169, 170.
Town v. Bank of River Raisin, 2 Doug., 530.
Assignment, 215, 218; Corporations, 745 to 747.
Town, Bower v.
Town, Hinchman v.
Townsend, Stevens v.
Township of Marathon v. Township of Oregon, 8 Mich., 372.
Mandamus, 2245; Townships, 3162.
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, 2660; Schools, 2964, 2965.
Township of Texas v. Wager, 12 Mich., 39.
Taxation, 3137 to 3139.
Township Board of Fillmore, People v.
Township Board of LaGrange, 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, 289; Equity, 1201; Judgments, 2096, 2097; Uses, 3191.
Cited, 10 Mich., 492; 11 Mich., 251.
Treasurer of Detroit, People v.
Treasurer of Wayne County, People v.
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 Coarts, 2681, 2682; Practice in Supreme Court,
2793; Principal and Agent, 2825, 2832; Replevin, 2942.
Cited, 12 Mich., 123; 13 Mich., 442.
Truesdail Sanger v.
Truesdale v. Hazard, 2 Mich., 344.
Boat and Vessel Law, 446 to 448,
Cited, 11 Mich., 125.
Tryon, Gould v.
Tryon, People v.
Tucker v. Mowrey, 12 Mich, 378.
Contracts, 681.
Tucker v. Rohrback, 13 Mich., 73.
Former Suit, 185;, 1856.
Tuller, Stevens v.
Tully v. People, 6 Mich., 273.
Criminal Law. IN.




TABLE OF CASES.                          67
Turner v. Chapman, 6 Mich., 396.
Note to Caswell v. Comstock,
Turner v. Lewis, 2 Mich., 350.
Boat and Vessel Law, 434 to 436,
Cited, 11 Mich., 125.
Turrill v. Walker, 4 Mich., 177.
Jurisdiction, 2134; Practice in Circuit Courts, 2625, 2626.
Tuttle, Tannahiil v.
Tweed v. Metcalf, 4 Mich,, 579.
Constitutional Law, 657; Taxation, 3092 to 3099, 8104 to 3108;
Townships, 3161
Cited, 5 Mich, 155, 503.
Twombly v. }Parsans, 10 Mieb., 272.
Practice in Circuit Courts, 2715 to 2717.
Tyler, Blanchard v.
Tyler, Jones v.
Tyler v. People, 8 Mich., 320.
Admiralty Courts, &c., 78; Constitutional Law, 605; Criminal
Law, 781  Navigable Waters, 2411; Practice in Circuit Courts, 2724.
Cited, 11 Mich., 329; 13 Mich., 162, 501.
Tyler, People v.
Ulmann, Cooper v.
Underwood v. Waldron, 12 Mich., 73.
Contract, 715, 716; Corporations, 720: Pleadings, 2560.
Vail, Topliff v.
Vail, Williams v.
Van Blarcom v. /Etna Insurance Co., 6 Mich., 299.
Practice in Circuit Courts, 2739.
Van Brunt v. Wakelee, 11 Mich., 177.
Mortgage of Chattels, 2305.
Van Cleve, People v.
Vanderhoof v. Dean, 1 Mich., 463.
Arbitration and Award, 189.
Vandling, Mowrey v.
Van Dyke v. Davis, 2 Mich., 144.
Consideration, 582; Contracts, 696; Equity, 1343, 1470.
Van Gorder, Gugins v.
Van Husan v. Kanouse, 13 Mich., 303.
Constitutional Law, 589; Interest, 2074; Mortgage of Lands, 2319,
2382.
Van Husan, Nye v.
Van Kleek v. Eggleston, 7 Mich., 511.
Evidence, 1787; Practice in Circuit Courts, 2743i Remedy, 2934:4
Judgment, 3307.
Van Renselaer, Carroll v.
Van Renselaer v. Whiting, 12 Mich., 449.
Error, 1539; Practice in Circuit Courts, 2719.
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, 2808, 2309.
Followed, 7 Mich., 22.
Wadsworth, McHardy v
Wager, Township of Texas v.
Waite, Russell v.
Wakelee, Van Brunt v.
31




618                    TiTABLE OF CASES.
Walbridge v. Spalding, 1 Doug., 451.
Attachment, 262, 263, 264.;
Waldby v. Callendar, 8 Mich., 480.
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, 2582;.Practice in Circuit Courts, 2642, 2643.
Wales v. Newbould, 9 Mich., 45.
Equity, 1111, 1309;.Husband and Wife, 2017, 2021.
thted, 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, 1333.
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.
Waltoan 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.
Cited, 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. v.
Ward v. 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 v.
Warner v. Whittaker, 5 Mich., 241.
Appeal from Chancery, 121, 124, 132.




TABLE OF CASES.                          69
Warner v. Whittaker, 6 Mich., 133.
Appeal from  Chancery, 146; Bona Fide Purchaser, 458, 460;
Equity, 1242, 1474.
Cited, 8 Mich., 402; 9 Mich., 220; 10 Mich., 124, 495; 12 Mich.,
342; 13 Mich., 372.
Warner, Wight v.
Warner, Wing v.
Warren, Wattles v.
Washburn v. People, 10 Mich., 372.
Criminal Law, 786, 901, 902, 907; Evidence, 1666.
Cited, 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, 11 Mich., 125.
Watson, Day v.
Watson, Higgins v.
Watson v.  Thurber, 11 Mich., 457.
Acknowledgment of Deeds, 9, 10; Husband and-Wife, 2016, 20N.'Wattles v. People,
Criminal Law, 894, 897, 938
Wattles v. 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, 1642, 1643, 1701.
Cited, 5 Mich., 65.
Wayne Circuit Court, People v,.
Wayne County, Bacon v.
Wayne County Auditors, People v.
Webb v. Mann, 3 Mich., 139.
Action, 30; Justices' Courts, 2146; Mortgage of Chattels, 2288;
Tenant in Common, 3143; Waiver, 3226.
Webb v. Williams, Wal. Ch., 452.
Equity, 1116, 1436.
Webb v Williams, Wal. Ch., 544.
Mortgage of Lands, 2386.
Webber v. Hanke, 4 Mich., 198.
Evidence, 1686, 1687, 1756.
Webster v. Fisk, 9 Mich., 250.
Practice in Supreme Court, 2791, 2792.
Websterv. Hitchcock, 11 Mich., 56.
Appeal from Chancery, 108; Equity, 1386, 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, 2919.
Weed v. Lyon, Wal. Ch., 77.
Appeal from Chancery, 100.
Weed v. Snow, 1 Mich., 128,
Evidence, 1825.
Cited, 7 Mich., 61.




70                     TABLE OF CASES.
Weed v. Terry, Wal Ch., 501.
Consideration, 582; Specific Performance, 2996, 3010.
Affirmed except as to wife's dower, 2 Doug., 344.
Weed v. Terry, 2 Doug., 344.
Consideration, 582; Specific Performance, 2996,. 3010, 3011..
Cited, 2 Mich., 149.
Welch v..Bagg; 12 Mich., 41..
Action, 47;, Certiorari,. 534,. 537.
Welch v. Frost, 1 Mich., 30.
Action, 61; Justice of the Peace, 2190.
Welch v. Stowell, 2 Doug., 332.
Criminal Law, 861 to 863;Nuisance, 2431, 2432.
Cited, 11 Mich., 452.
Welles v. City of Detroit, 2 Doug., 77.
Attachment, 298.
Welles v. River Raisin and Grand River Railroad Company, Wal. Ch., 35.
Equity, 1132,1133.
Wellington, Huntington v.
Wells, People v.
Wells v. Scott, 4 Mich,, 347.
Appeal from Justice's Courts 170.
Cited,.6 Mich., 363.
Wendell, Schwarz v.
Wesleyan Seminary v. Fisher, 4 Mich., 515.
Consideration, 585, 586.
Wessel, Reed v.
Westbrook v, Comstock, Wal. Ch., 314.
Guardian and Ward, 1964 to 1966; Husband and Wife, 2013.
Western Massachusetts Insurance Co. v. Riker, 10 Mich., 279.
Insurance, 2054, 2055.
Wetherell v. Spencer, 3 Mich., 123.
Mortgage of Chattels, 2294, 2295; Replevin, 2937.
Wetherell, Teller v..
Wetherwax v. Paine, 2 Mich., 555.
Bills and Notes, 396; Garnishees, 1916 to 1918; Joint Debtors,.
207,7.
Wetmore v. Aldrich, 10 Mich., 515.
Contracts, 718.
Wharton v. 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, S Mich.,,436..
Constitutional Law, 616; Eq~uity,, 1-20; Judgments, 2102, 2103'
Waiver, 3223.
Whipple v. Stewart,.Wat. Chi., 357Equity, 1443 to, 1445.
Whipple v. Williamsi, 1 Mich.115o.
Affidavit, 93.
Whitcomb, Bragg v.




TABLE OF CASES.                             7
White v. Bailey, 10 Mich., 155.
Evidence, 1663, 1685, 1725, 17835, 1752; Practice in Circuit Courts,
2672.
Cited, 12 Mich.,. 489.
White, Beach 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.
Husband and Wife, 2020.
White Pigeon Beet Sugar Co., Hasey v.
Whiting, Van Renselaer v.
Whitmore, Elliott v.
Whitney, Rash v.
Whitney, Tate v.
Whittaker;. Bidwell v.
Whittaker, Warner v.
Whittemore, Michigan Insurance Co. v.
Whitwell v. Carter, 4 Mich., 329.
Wager, 3217.
Whitwell v. Emory, 3 Mich., 84.
Recording Laws, 2921.
Cited, 6 Mich., 487, 489, 494.
Whitwell, Emory v,.Wlight v. Maxwell, 4 Mich., 45.
Conflict of Laws, 576.
Cited, 11 Mich., 125.
Wight, Montgomery v.
Wight v. Warner, 1. Doug., 384.
Certiorari, 539;: Jurisdiction, 2125, 2126, 2130; Justices' Courts,
2145.
Cited, 1 Doug., 393; 2 Doug., 384, 587; 1 Mich., 21, 89, 152, 160; 2
Mich., 348; 5 Mich., 416; 8 Mich., 64.
Wilcox v. Hill, 11 Mich., 256.
Evidence, 1650; Mortgage of Lands, 2347, 2348.
Wilcox v. Kassick, 2 Mich., 165.
Evidence, 1780; Jurisdiction, 2139 to 2142; Pleadings, 2579, 2580.
Wilcox, Larned v.
Wilcox, McKee v.
Willard v. Longstreet, 2 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, 1203, 1206, 1241; Evidence, 1813.
Williams, Jerome v.
Williams, Manning v.
Williams v. Mayor, &c., of Detroit, 2 Mich., 560.
Constitutional Law, 628, 629; Detroit City, 1046; Equity, 1112,
1136; Taxation, 3126 to 3134, 3141.
Cited, 5 Mich., 258 to 280; 8 Mich., 279 to 303; 13 Mich., 153.




'72                   TABLE OF'- CASES.
Williams, Mercer v.
Williams v, Michigan Central -Railroad Co., 2 Mich., -259.
Fences, 1843, 1846, 1848, 1849i Negligence, 2416.
Cited, 9 Mich., 160; 11l Mich., 452; 7 Mich., 418.
Williams, Stcckton 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.
Attachment, 256, 258; Bona Fide Purchaser, 465.
Cited, 6 Mich., 242.
Wilson v. Davis, 1 Mich., 156.
Appeal from Justices' Courts, 158, 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., 272.
Practice in Supreme Court, 2801,
Wing, Gorham v.
Wing, Johnson v.
Wing, Jones v.
Wing v. 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., 213.
Wing, Ten Eyck v.
Wing v. Warner, 2 Doug., 288.
Appeal from Chancery, 114.
Cited, 2 Doug., 301.
Winslow v. Herrick, 9 Mich., 380.
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, 2638; Taxation; 3079, 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., 316.
Wood v. Savage, 2 Doug., 316.
Fraud, &c., 1871, 1872, Husband and Wife, 2026.
Cited, 2 Mich., 385.




TABLEOF.. CASES.
Woodbridge v. City of Detroit;. 8 Mich., 274.
Constitutional Law, 630; Taxation, 3141.
Woodbury v. Lewis, Wal, Ch,, 256.
Evidence, 1662; Mortgage of.Lands, 2887,
Woodrow v. Michael, 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, 1277.
Wright v. Dunham, 13 Mich., 414.
Evidence, 1700, 1814; Taxation, 3083, 3091, 3114, 3116, 3117.
Wright v. King, Har. Ch., 12.
Equity, 1121, 1131; Trusts, 3176, 3177.
Cited, Har. Ch., 368.
Wright, Rowe v.
Wurcherer v. Hewitt, 10 Mich.,453.
Equity, 1242, 1292, 1474.
Cited, 13 Mich., 37, 372.
Wyckoffv. Carr, 8 Mich., 44.
Assignment, 236.
Wyckoff v. Wyllis, 8 Mich., 48.
Judgments, &c., 2115, 2116,
Wyllis, Wyckoff v.
Wyngert v. Norton, 4 Mich., 286.
Contracts, 693; Evidence, 1759.
Yawkey v. Richardson, 9 Mich., 529.
Courts of the United States, 771; Error, 1542.
Yawkey, Richardson v.
Yoare, Pew v.
Young, Beebee v.
Young v. McKee, 13 Mich., 5382.
Equity, 1469, 1498; Infant, 2044.
Young v. Stephens, 9 Mich., 500.
Evidence, 1670, 1671, 1839,1840; Imprisonment for Debt, 2041.
Zane, White v.
Zilwaukee. Township, People v.