in no essential particular from an execution-Must be levied on property of corporation-If legal title has passed to another party for a valuable consideration, who is in peaceable possession, lien of State cannot be enforced by such execution until right of State has been fixed in the equity court-Railroad company and purchaser necessary parties to such a suit-Bill in aid of execution—Sheriff cannot file-Remedy only available to creditor or legal representative-Track and road-bed of railway company not subject to execution levy-Chancery rule 123-Not applicable to suit pending at time of its adoption in which answer has been filed-Crossbill-Defendant in has right to demur or answer—And support his defense by proofs--Nothing in rule 123 depriving him of any rightsOrder allowing amendment of answer, so as to come under the rule, and not providing for such defense, illegal-Can be sustained only on matters growing out of and embraced in original bill-And only filed where defendant could file original bill. HAHN, HITCHCOCK V.. HANSELMAN V. CARSTENS, Physicians and surgeons-Malpractice-Declaration averring professional character, and employment in that capacity to set broken limb and give necessary care and medical treatment, sufficiently states defendants duty-Declaration-Facts required to be stated are those deduced from other facts to be found from the testimony — And must be such as will enable court to declare the law in the case -Technicalities not favored by the courts--Merits should be reached as soon as possible. HANSELMAN V. KEGEL, Replevin-By wife of exempt property-If not found, suit against third party not inconsistent with plaintiff's original claim-Fact of recovery may be shown in mitigation of damages-Delivery of property by defendant-If made to enable creditor of husband to levy upon, invalid-Exempt property not liable to garnishment in suit against husband-On refusal of garnishee to deliver to wife she can maintain replevin jor-How. Stat. § 8050, not a bar to such an action-May join with husband, or sue aloneHer remedy and right not dependent on husband's action or nonaction-Measure of damages- Where property not found, is its value at date of conversion, and interest thereon. HATCH, PEOPLE V., Ejectment-Husband and wife-Deed by of land of wife-Designation in deed of interest of wife in the land, not essential to its validity-Liability of wife on her covenants in deed measured by her interest in the land conveyed-Deputy Sheriff-May sell land on foreclosure of mortgage by advertisement-Deed executed by heir at PAGE 459 187 540 229 391 391 law, not incompetent evidence because grantor not shown to be sole Estoppel defined-Party complaining must have taken some action in reliance upon the statement or conduct of defendant-Expenditures in litigation may be a basis for an estoppel-Ratification— May be express or implied-Agent or volunteer-Good or bad faith of latter immaterial if party dealt with acts bonafidely. HITCHCOCK V. HAHN, Attachment suit-Return by officer of seizure of property on teste day of writ, and defendants not found—If writ filed on return day, not prematurely returned-Return of non-service refers to date of filing-Return that officer cannot find the defendants, is equivalent to certifying that neither defendant could be found― Execution— Failure of attorney to indorse direction to officer, under How. Stat. §§ 8008-9, not ground for reversal-May subject attorney and officer to suit for damages for injury arising from such non-compliance. PAGE 382 459 470 485 167 I IN THE MATTER OF THE ESTATE OF WILLIAM SMITH, DECEASED, Will-Bequest of personalty to widow-If accepted, the will stands as to other bequests-How. Stat. §§ 5824-5, construed. J JENNISON, ATCHISON, TOPEKA & SANTA FE RAILROAD Co. v., Lien for freight-Does not attach unless freightage contract is fully KENDRICK V. TOWLE, Negligence-In operating a private logging railroad-Liability of operator defined-Takes upon himself large responsibilities, and required to take special precautions against injury to property of others endangered thereby-Contributory negligence-Not chargeable to owner of adjoining mill in allowing refuse matter to accumulate as he was accustomed to do before the railroad was built— Damages-Measure of- When interest may be added to value of property destroyed-Charge to the jury-Where it covers special request, error not assignable for its refusal. KING, MCCAUSLAND V., PAGE 363 70 LOVEJOY V. POTTER, L Land contract-Deed of land and assignment of contract-Pay- M MACK, HACKLEY V., MAUNAUSAU,, People v., MAXWELL V. Speed, JUDGE OF THE WAYNE CIRCUIT COURT, Replevin-If property not seized and plaintiff proceeds for value, suit becomes essentially a personal action-Is governed by same rules as a trover suit-Tenant in common, if entitled to possession, may maintain replevin against wrong-doer who is a stranger to the title-Fraudulent conveyance-In absence of proof of, grantor has no leviable interest in the land conveyed-After-acquired title will not inure to benefit of levy-Such titles do not pass by deed on execution sale-But only interest of judgment debtor in land at time of levy. MCCAUSLAND V. KING, Judgment v. husband for repairs on wife's house-Conclusive evidence, in suit v. wife for value of same, that plaintiff looked to husband as the debtor-Books of account-Defendant entitled to full crots-examination of plaintiff, in suit brought on an account shown to have been charged therein, of all books will show-Plaintiff must produce books on demand, without subpœna duces tecum. MCKINNEY V. CURTISS, Estates of deceased persons-Powers of commissioners on claims— Decision in no sense a common law judgment—Attorney at law— Acting for a client, not sufficient to charge him with participating in evil intention of such client-Equity jurisdiction—Remedy at law-Must be adequate, complete, and adapted to the particular exigency—In cases of fraud or breach of trust, equity court will retain jurisdiction even though concurrent with that of law court -Judgment-Never a bar unless rights of party claiming adversely thereto were passed upon, or he had the right to have same adjudicated. MCKINNON V. ATKINS, PAGE 611 418 Case made-Circuit court rule 84 requires statement of errors to be filed-Failure to except to order of court directing judgment, or to assign error thereon, necessitates dismissal of case. MEUTH, MORGAN V., MICHIE V. ELLAIR, Chancery appeal-bond-How. Stat. sec. 6738-Legislative intentLiability of sureties limited to payment of costs upon the appeal proceedings—Bond not intended as additional security for original debt. MICH. CENTRAL R. R. Co., BUTLER V., MICHIGAN LAND AND IRON COMPANY V. DEER LAKE COMPANY, Trespass to land-How. Stat. § 7957, construed-Treble damages thereunder-Not recoverable in the absence of willful wrong and active misconduct on part of trespasser-Burden of proof on de fendant to show trespass casual and involuntary—Measure of damages in this case held to be value of timber if standing. MILLER, ADMINISTRATOR, V. CLARK, Ejectment-Plaintiff entitled to but one judgment—Having deliberately made his election, he is bound thereby-How. Stat. sec. 7838, construed-Judgment-Entry at instance of plaintiff presumed, where record shows that he was represented in court on day of entry, and consented to extension of time for settlement of bill of exceptions by defendant, and secured a like extension for himself. MINER V. O'HARROW, Common counts-Recovery under-May be had for sum agreed upon as due, if based on lawful consideration-AmendmentsContract-Sale of equitable interest sufficient consideration-Statute of frauds-Part performance-Deed given as securityGrantee liable for surplus realized on sale of property. MOILES V. WATSON, Primary school money-Apportionment of by superintendent of public instruction-Direction for its pryment as between school districts, if accompanying the apportionment, cannot be altered or modified by town clerk-Title of defacto officer will not be tried on application for mandamus. 238 73 83 143 162 91 415 MORGAN V. MEUTH, Mortgage-Right of way-Modification of description of, by decree of Supreme Court on foreclosure-Cannot be made where the bill of complaint fails to ask for such reformation, and the decree appealed from follows the mortgage description-Commissioner's deed on a sale under such modified decree cannot increase the rights originally granted by the mortgage-Nor can the owner of the equity of redemption subject to such mortgage stipulate for a decree changing such original grant-Easements-Extinguished by unification of title to dominant and servient tenements-Discontinuous and continuous, defined — Conveyance of dominant estate will not pass a discontinuous easement, under general words, "together with the hereditaments," etc.-Grantor must use language sufficient to create such easement de novo-Or its use must be necessary to the enjoyment of the premises conveyed-Way of necessity defined. MYRES V. YAPLE, Replevin-Contract for conditional sale-Title retained by vendor as PAGE 238 339 N NAIRN, SUPREME LODGE KNIGHTS OF HONOR V., O'BRIEN, PEOPLE V., O'CONNOR V. SILL, Libel-Article charged as libelous must be all read together—Its spirit O'HAGEN, HEYN V., O'HARROW, MINER V., OLIVER, MCARTHUR V., Bona fide purchaser-Notice of unrecorded deed—Duty of purchaser defined-Willful ignorance equivalent to possession of the knowledge he avoids-Churged with notice of facts definitely communicated to him-And which a proper use of such information would have enabled him to ascertain-Bankruptcy proceedings-Adjudication and assignment vest debtor's property in his assignees-Title not reinvested by his subsequent discharge-Remains in assignees until their discharge-Answer of jury to special question- When not binding in appellate court. 44 8 175 150 91 605 346 |