Pierce v. Holzer.-Continued.

case of any other trustee-Misapplication by trustee of trust fund-May be followed wherever traceable, and is subject in new form to rights of original owner or cestui que trust-When administrator misapplies funds, to injury of distributees, they may sue on the boad, or pursue fund where traceable-Proof of substantial identity sufficientAssets of deceased person subject to payment of his debts -For this reason, creditor has an equitable lien thereon, enforcible through administrator in a proper case for equitable interference-Whose misapplication of assets, and neglect to pay claims after order for distribution, is such a case-Investment of assets in a homestead cannot avail in such a case.

PAGE

688

638

In suit for negligently setting a fire-Brought under How.
Stat. sec. 9402-Declaration claimed one hundred dollars
damages, with right to double same under statute-Held
sufficient to authorize justice to render judgment for two
hundred dollars, on verdict for half that sum-Juris-
dictional question properly brought up on special appeal.

Highway by user-Includes no more land than is used for
highway purposes-Cannot be extended upon adjacent
lands without consent of owner or proper condemnation
proceedings.

SCHLEE V. DARROW ESTATE,

Finding by circuit judge that proper petition for license to
sell real estate was filed-Conclusive, in absence of record

538

225

414

555

638

362

Schlee v. Darrow Estate.-Continued.

of proceedings in probate court-If jurisdiction of probate court appears, continuance of hearing on petition presumed to have been authorized, in absence of counter-showingAffidavit of publication of probate order made by person describing himself as book-keeper-Insufficient under How. Stat. sec. 7493-But if affiant swears on knowledge to such publication, affidavit is sufficient proof of facts stated, under How. Stat. sec. 6047-If received in evidence without objection, it cannot be objected to for first time in this Court-Guardian's bond on sale of real estate-Surety bound to see that principal performs its conditions, and gives legal notice of sale—If license properly granted, bond covers failure of guardian to make legal sale-In suit by wards on bond for recovery of money received on sale, recovery cannot be defeated by showing invalidity of sale for failure to give legal notice-Probate courts have general jurisdiction in testamentary and other probate matters -On application by wards to bring suit on guardian's bond, probate court cannot try the suit in advance, and adjudicate guardian's liability-Where this was done, and claim for amount found due filed against estate of surety on bond-Which informed representatives of estate of the nature of the alleged default, and the items of the wards' demand-And no bill of particulars was demanded-Held sufficient to admit evidence of guardian's default, and to determine liability of surety-Proof of failure of guardian to apply proceeds of sale to support and education of wards-And appropriation of same to his own use-Shows breach of condition of bond, making surety liable-Conveyance of land by wards after arriving at full age to purchaser at voidable guardian's sale-On which he had paid a portion of the purchase price to the guardian, but had not received a deed from the guardian-The consideration paid to the wards forming no part of the moneys paid the guardian-Though a ratification of the prior sale, does not release surety on guardian's bond from liability.

Adjournment by justice for more than six days, at request
of plaintiff and against objection of defendant-A discon-
tinuance of suit, if cause is not shown upon oath.

PAGE

485

215

Petition to enforce mechanic's lien-Omission of prayer for
process immaterial-Will not render bill in chancery defect-
ive, under chancery rule, if defendants otherwise identi-
fied-Filing of petition, commencement of suit under
mechanic's lien law-Same rule applies to equity proceed-
ings-Purely statutory lien must conform exactly to stat-
utory conditions-But when it attaches, and is put in pro-
cess of foreclosure, proceedings in important particulars
governed by general rules of practice-Rights of all parties
should be harmonized and respected as far as reasonably
practicable.

Managing partner doing business in name of trustee by
agreement with mortgagees-And continuing business
after payment of mortgages in same manner-During
which time he dealt in coal in his own name, the profits
going into the general business-In transacting which he
gave and took notes in trustee's name, with his knowledge
and consent-Held, that note given in trustee's name in
payment for coal was the debt of trustee.

SHIPPY V. VILLAGE OF AU SABLE,

Cross-walks-Manner of construction rests in discretion of
village authorities, which courts cannot review-Are sup-
posed to use common judgment and fidelity-And have a
right to assume that parents will use proper caution in tak-
ing young children along the highways.

SINGER MANUFACTURING COMPANY, BOGLARSKY V.,
SISSUNG V. SISSUNG,

Divorce-Fraud-Representations as to pregnancy.

SMITH, PANGBORN V.,

SNYDER V. WILSON,

494

510 168

Error for justice to send message to jury, by attending officer, involving merits of case-Verdict unsatisfactory to both parties and by agreement set aside, and by like con

336

Snyder v. Wilson.-Continued.

sent justice to remain with jury during their further delib-
erations-Parties thereby constitute their own tribunal-
And justice has jurisdiction to render judgment on second
verdict--Proceedings not reviewable on certiorari.

SOLOMON V. GROSBECK,

Report of government commissioners appointed to settle claims of citizens of Michigan Territory to lands therein, recommending confirmation of claims-Which report was confirmed by act of Congress-Held, equivalent to a grant to claimants-Declaration charging defendant with breaking and entering plaintiff's close, with force and arms, and with commission of specified acts of trespass-To which general issue alone is pleaded-Pleadings held to put title in issue, and permit defendant to show adverse title. SOULE V. CORBLEY,

Mortgage-Assignment of by indorsement on back, duly
acknowledged and witnessed, referring to it as "the
within mortgage"-Both instruments being recorded in
same volume, with cross-references connecting the two
records-As effective as if both instruments had been
recorded together.

STACKABLE V. STACKABLE ESTATE,

Evidence as to facts equally within the knowledge of
deceased party-Held to fall within the statute on facts of
this case-Act No. 139, Laws of 1885, amending How.
Stat. sec. 7545–Designed to prevent assignment of claim
against an estate, to enable assignor to testify in its sup-
port-Claim for board furnished presumed to belong to
husband as head of family-If claim for is filed by wife
against estate of deceased boarder, neither husband nor
wife competent witness under statute-Cross-examination,
and impeaching and discrediting testimony-When per-
missible.

STAMM V. NORTHWESTERN MUTUAL BENEFIT ASSOCIATION,

Benefit association-Refusal by Insurance Commissioner of
license to transact business-Which was acquiesced in by
officers and members and business suspended, except
attempted assessments for after-losses-Has the effect to

PAGE

540

109

515

317

Stamm v. Northwestern Mutual Benefit Association. - Con-
tinued.

destroy the moral or legal capacity of the association to
resume business-Such assessments were as much doing
business as admitting new members, and fell under the
inhibition of the statute-Equity court has no jurisdiction,
unless conferred by statute, to decree dissolution of cor-
poration by forfeiture of its franchise- But by virtue of its
general jurisdiction over trusts it may grant relief against
a corporation upon same terms it might against an indi-
vidual-On the facts in this case, the affairs of the associa-
tion should be closed up, and the fund distributed pro rata
among the members, as of date of refusal of license-
Prior losses to be paid in full, to beneficiaries or their
representatives-Costs of this proceeding payable from the

fund.

STARKEY V. HORTON,

Lease-For fixed term, with option of another year if farm
not sold-Sale to lessor's wife in spring of last year of term
-Of which lessee is not notified-And deed recorded after
he has commenced sowing wheat on the land-Prior to
which he had negotiations with lessor for sale of his option
---Wife takes deed charged with notice of lessee's rights---
Must give him notice of sale, to prevent exercise of his
option-Which means an open and notorious sale--And
until such notice lessee may deal with lessor as if real
owner-Whose grantee is bound by his acts and declara-

Negligence-Testimony must conform to that alleged in declaration-Boy operating dangerous machine-If too young to realize peril to which he is exposed, employer not shielded by instructing him so that he understood use of machine-But not liable if boy was of that age and maturity of judgment to understand danger, of which he was fully informed, and was instructed in the use of the machine so as to avoid injury, which was kept in repair and fit for use by employer-These are questions of fact for the jury.

65 MICH.-C.

PAGE

96

644