the present case the officer certainly had a right to make the levy, and he had no means of knowing, except from the debtor himself or his wife, whether he claimed the whole of it. Where there has been no actual selection by metes and bounds (and this actual selection means some step which is sufficient to inform the officer or the world of the extent of his rights), the statute is express that the debtor must notify the officer of what he regards as his homestead, with a description thereof: Section 7723. Until such notification the officer is not required, neither is the creditor required, to resort to any appraisal: Section 7724.
In the present case no attempt was made to require or induce the sheriff to take any such step, and it is apparent that probably defendant meant to rely on her husband's deed, which may have been good as to the homestead interest, but no further.
The levy was valid, and, not having been put under any conditions, the sheriff had a right to sell, and if the property produced more than $1,500, that must necessarily be regarded as its value. It seems to me entirely inadmissible to defeat a sale, to which no one made opposition at the time, by attempting to show that the land brought more than its value. The way was clear to save defendant's rights, and it was not followed.
I do not feel by any means convinced that the wife, or any third party claiming under a deed, can, under any circumstances, object, in an action of ejectment, to a title made under a sale not objected to when made; or one, even if objected to, that they have taken no steps to have set aside by the court from which the execution issues, if it can be done in any case. It would render it very dangerous for persons bidding to deal in reliance upon the record title, if it can be defeated by parol testimony of a possession which may easily have ceased, and of which, when no steps have been taken before the sheriff to have homestead rights respected before sale, neither original nor derivative purchasers can have knowledge.
The constitution and statutes both contemplate an active selection. This may, in some cases, be shown by circumstances, but under execution sales I think it must be shown to the sheriff, if not of record already. There is no hardship in requiring it, and I think the law very plainly requires it.
[Cross-references are to pages; and when there are several notes on a
page the number of the note is added in parenthesis.]
Abandonment-by railroad company of proceedings to condemn right of
way, 1 (2).
of homestead, when absence does not amount to. See HOMESTEAD (1, 2).
of premises in ejectment, 162 (1).
Abatement-plea in not necessary to oust justice of jurisdiction depend-
ing on amount in dispute, if shown on the trial to be excessive, 235 (2).
Absence-from homestead, when not an abandonment. See HOMESTEAD
(1, 2).
Accomplice-jury may convict on uncorroborated testimony of. 9 (6).
Accounting-a pre-requisite to suit for partition only in partnership cases,
or when an agreement exists therefor, 443 (3).
Account rendered-when binding on party receiving. 204 (3).
Acknowledgment-of articles of association first step to form corpora-
tion, 26 (1).
Action-by wife for sale of liquor to husband. See LIQUOR TRAFFIC.
will lie under common counts for a sum agreed upon as due, if based
on a lawful consideration, 91 (1).
Admission-of one defendant. made in absence of the other, admissible
on joint trial of both, 15 (1).
cannot be used against absent defendant. Id.
error to fail to so instruct jury.
failure to ask for such instruction, or to object to its omission,
not a waiver. Id. (2).
Adverse possession-See MORTGAGE (1).
Affidavit-of non-residence must show every fact necessary to give the
officer jurisdiction to make order for appearance, 318 (2).
of renewal of chattel mortgage, when must be filed, 76 (4).
cannot be sworn to before town clerk. Id.
AFFIDAVIT OF NON-RESIDENCE.
1. The principle is well settled in this State that the statute authorizing
substituted service of process must be strictly complied with in order
to confer jurisdiction upon the court over the property of the defend-
ant which the suit is instituted to reach and subject to the payment
of his debt; and the required statutory affidavit must show every
fact necessary to give the officer jurisdiction to make the order for
appearance. Colton v. Rupert, 318.
2. A subpoena to appear and answer was returned on the return day,
unserved, the officer certifying that after diligent search the defend-
ant could not be found in his jurisdiction" Thereupon complainant's
solicitor made an affidavit "that the subpoena could not be served
on the defendant by reason of his absence from this State," and
further stated on information and belief, but without giving the
name of his informant or the source of his information, "that defend-
ant resided at Erie, in the state of Pennsylvania "; on this affidavit
an order was made for the appearance of the defendant.
Held, that there is no requirement in the statute (How. Stat. § 6670)
that the person making the affidavit therein provided for shall give
the source of his information; nor does the statute undertake to pre-
scribe what shall be considered proof of the facts required to be shown
by such affidavit.
Hell, further, that good practice requires that the name of the
informant, or source from which the information is derived, should
be stated, not as affording any additional weight to the affidavit as
evidence, but as a safeguard and check against false and reckless
swearing.
Held, further, that the law is based upon the necessity of the case,
in order to enable parties to reach and deal with property within the
jurisdiction of the court; and that to require the statutory facts to
be established by such evidence as would preclude all reasonable
doubt, or of such character and weight as to preclude a possibility
of error, would deprive the statute, in a large majority of cases, of
any etficacy, and result in a failure of the remedy designed to be
afforded by the law.
Held, further, that the proceedings were regular, and the affidavit
of non-residence sufficient, within the unanimous opinion of this Court
expressed in Pettiford v. Zoellner, 45 Mich. 358. Id. 319.
AFFIDAVIT OF PUBLICATION.
1. An affidavit that an order of appearance was published once in each
week for six successive weeks, commencing January 6 and ending
February 10, 1870, shows a sufficient publication, it appearing that
no action was taken by complainant until after the expiration of the
week in which the order was last published. Colton v. Rupert, 320.
2. The files of the paper in which an order of appearance was published
are competent evidence of such publication.
Age-marriage certificate not evidence of, 464 (8).
See EVIDENCE (20-23).
See PRINCIPAL AND AGENT (1, 2).
Agency-See RATIFICATION.
See STATUTE OF FRAUDS (5, 6).
Alien-not qualified to sit as juror, 278 (6).
Alteration-of written instrument, when immaterial, 432 (3).
will not prevent recovery on original claim. Id. (4).
presumption as to time of, 210 (2).
Amendment-great liberality exercised in allowance of, where defendant
has not been misled as to the issue, 91 (2).
of bill of complaint admits validity of plea, 470 (1).
Appeal-from commissioners on claims in probate court, bond should
run to personal representative, 219.
On appeal from the action of commissioners on claims in rejecting a
claim against an estate, the bond given by the appellant should run
to the administrator or other personal representative of the estate.
Daniels v. Stevens, 219.
See CHANCERY APPEAL BOND.
Application-for fire insurance. See FIRE INSURANCE.
Apportionment-of primary school fund, 415.
Appraisal-wheu essential to valid sale of homestead, 644 (5).
Articles of association-acknowledgment of by stockholders, 26 (1).
The whole theory of a legal assessment for local improvements depends
upon a uniform rule of charges within some defined district, and
resting on some principle which is intelligible; and an assessment
which throws the whole of a costly work upon a frontage of only
one hundred and forty feet, in a long street, is a very peculiar exer-
cise of the power creating assessment districts, and is solitary in the
experience of the Court. Clay v. Grand Rapids, 452.
Assessment Roll-See TAXES (5).
Assignee of insolvent debtor cannot continue business of assignor, 561
(2,5).
no authority to make sales on credit, Id. (5).
of non-negotiable note can recover to same extent as assignor, 432 (2).
Assignment-of land contract, rights of parties under, 95.
ASSIGNMENT FOR BENEFIT OF CREDITORS.
1. Two copartners made an assignment of a stock of goods for the bene-
fit of their creditors subject to their statutory exemption, which all
parties supposed was $250, and, having consented to a sale of the
stock in gross, received said exemption from the proceeds of such
sale. After the death of the assignee a claim for the second exemp-
tion was filed against his estate, and, on appeal from the award of
the commissioners on claims, the court found that the assignee had
expended the trust fund in his life-time, with the consent of the
assignors, except a balance in the hands of his estate of $87.66,
which sum was awarded to the claimant and judgment entered
accordingly.
Held, that as all parties had treated the trust fund, less the one
exemption, as subject to the general purposes of the assignment, the
assignors lost all claim to so much of the assigned estate as had been
used with their consent in derogation of their present claim, and
that their right against the estate was limited to the remnant undis-
posed of.
Held, further, that all that the claimants were bound to show was
their preferred right, and the existence of unexpended money in the
hands of the estate to apply upon it. Chipman v. Kellogg, 439.
2. Under How. Stat. §§ 8744, 8749, it is competent for any creditor to
file a bill against the assignees of an insolvent debtor to enforce the
prompt and faithful execution of the trust; and to this end other
creditors have no opposing interests, and are not necessary defend-
ants; nor need they be joined as complainants, the statute authoriz-
ing separate action by any person interested. Wilhelm v. Byles, 561.
3. There is no statute in Michigan authorizing the assignees of an insolv-
ent debtor, by the consent of all or a majority of the creditors, to
continue the assigned business, and, in the absence of statutory pro-
visions, the duty of such assignees, and their conduct and manage-
ment of the assigned property, are subject to the ordinary rules and
principles which apply to trustees in analogous cases.
4. As a general rule, the effect of a general assignment for the benefit
of creditors puts an end to the transaction of the debtor's business as
ordinarily conducted; and it is the duty of the assignee to convert
the property into money without unnecessary delay, and apply the
same to the payment of the assignor's debts. Id.
5. Generally, the assignor cannot, in the deed of assignment, authorize
the assignee to continue his business, either for the benefit of cred-
|