9. An appeal from justice's court will not be peremptorily dismissed
on the ground that the affidavit for the appeal was sworn to before
a notary who was an attorney in the case. The proper course
would be to enter a rule nisi, instead. Bradley v. Andrews, 100.
10. In disposing of a bill to quiet title by setting aside an execution
sale made on a transcript of a justice's judgment, the circuit court
does not exercise an appellate jurisdiction as to the action in which
the execution issued. Vroman v. Thompson, 453.
to review proceedings to recover possession: CERTIORARI, 2,—p.
objections for misjoinder of complainants: ACTION, 4,-p. 21.
hearing on appeal after striking out testimony: TRIAL, 8,-p. 88.
judgment on, against surety for costs: JUDGMENT, 2,-p. 8.
costs on affirmance of divorce: COSTS, 4,-p. 88.
costs on dismissal of creditors' bill: Costs, 1,-p. 149.
from assessment of personal taxes: TAXES, 11, p. 120.
Appearance-erasure of entry of: JUSTICE, &c., 2,-p. 461; Costs, 3,—
p. 462.
Application-of note on indebtedness; BILLS, &c, 7,—p. 427.
of payments on MORTGAGE, 12,-p. 633.
Appointment-of administrator for wife: EXECUTORS, &c., 2, 3,—p. 29.
of executors: GUARDIAN, &C., 4,-p. 223.
of guardian: GUARDIAN, &c., 1, 3, 4; Real actions, 6,-p. 223.
of person to complete execution of TRUSTS, 2, 3,- p. 623.
Apportionment-of valuation; on tax roll: TAXES, 3,-p. 335.
ARBITRATION AND REFERENCE.
An arbitration which does not conform to statutory requirements may
nevertheless be good at common law; and a common-law action
will lie to enforce it if it fairly disposes of matters in dispute and
leaves nothing open to controversy. Galloway v. Gibson, 135.
ARREST.
1. An arrest cannot be made without a warrant on causeless suspicion,
and in the absence of actual belief of guilt, based on actual facts
that created probable cause. People v. Burt, 199.
2. The arrest of defendant in summary proceedings to recover posses-
sion is not approved where some other course is allowable and the
arrest is not essential to complainant's security. Carpenter v. Har-
ris, 223.
3. The arrest of respondent's witness, upon his leaving the stand, and
in the presence of the jury, tends, in a criminal case, to pervert jus-
tice, and should not be permitted. And such an arrest may be con-
sidered in connection with other facts of similar tendency, such as
the collateral impeachment of other witnesses for respondent.
People v. Wolcott, 613.
attempt to compel submission to: HOMICIDE, 1,-p. 200.
killing in trying to arrest: HOMICIDE, 2,-p. 200.
in proceedings to recover possession of land: ARREST, 2,-p. 224.
former arrest for crime, denied by WITNESS, 8, p. 613.
re-arrest of principal: BAIL, 1, 2,-p. 620.
A judgment for plaintiff in an action for an assault committed by
defendant while defending his possession, was reversed for an in-
struction permitting the jury to award to plaintiff her actual dam-
ages even though defendant did not exceed his just rights in de-
fending; and this, too, though there were other instructions incon-
sistent with this. Phillips v. Jamieson, 153.
Assessment-in mutual insurance companies: Insurance, 2,—p. 243; 5,
-p. 287.
notice of: INSURANCE, 3,—p. 587.
of city taxes; whether excessive: MUNICIPAL CORP. 4,-p. 120.
for drain taxes: DRAINS, &c., 1,-p. 557.
of personal taxes; appeal therefrom: TAXES, 11,-p. 126.
of taxes, as evidence of title: LANDLORD, &c., 1,-p. 57.
of partnership property: TAXES, 1,—p. 120.
of damages, by Supreme Court: DAMAGES, 11,—p. 494.
certificate to tax roll: TAXES, 4, 5, 8, 12,-pp. 335-6.
Assignment-of error on finding of law: ERROR, 4,-p. 62.
of error on proceedings by certiorari: CERTIORARI, 4,-p. 8.
of error on proceedings for striking a jury: ERROR, 5,—p. 8.
of error on the record: ERROR, 3, p. 354.
of error on sufficiency of counts: ERROR, 10,—p. 263.
of error on want of evidence: ERROR, 6,-p. 111.
assignee subject to same equities as assignor: MORTGAGE, 8,-p.
532.
of exempt property: ACTION, 1; GARNISHMENT, 3, p. 492.
by firm to individual partner: PARTNERSHIP, 4,—p. 585.
by husband to wife: ASSUMPSIT, 7,-p. 491.
by one of two mortgagees: MORTGAGE, 8,-p. 532.
of mortgage, as security: MORTGAGE, 7,-p. 229; EQUITY, 11,—p.
230.
of mortgage; record thereof as notice: MORTGAGE, 9,-p. 532.
Assistant-to PROSECUTING ATTORNEY, 3,-p. 524.
Association-Mutual Benefit; assessments: INSURANCE, 3,—p. 587.
ASSUMPSIT.
1. A vessel-captain can maintain assumpsit on common and spe-
cial counts against his employer, the owner of the vessel, for a
breach of the contract of employment by discharging_him before
the expiration of the period for which he was hired. Jones v. Gra
ham &c. Transp. Co., 539.
2. Assumpsit for the amount of a promised loan will not lie after the
expiration of the time within which it was to have been paid back.
The only right of action, if any, is for damages for not making the
loan as agreed. Stanley v. Nye, 232.
3. Certain building contractors agreed that when they got the pay-
ment on the contract they would pay a certain sum to a specified
person on an order from the painter. Held that an action for this
money could not be brought until after the order had been present-
ed or some demand made; and that if the agreement implied an ob-
ligation on defendants' part to take active measures to collect the
money, the failure to do so must be averred. Smith v. Ross, 116.
4. N agreed to deliver lumber to W & D. Both parties to this agree-
ment afterward agreed with B that payment for the lumber should
be made to B. Held, that on N's fulfilment of the agreement for de-
livery, B could maintain assumpsit under the later agreement, for
an unpaid balance of the payment due on delivery. Beebe v. War-
ner, 134.
5. Assumpsit as for money overcharged will not lie where the contract
on which it was paid was fully performed according to its terms,
but was practically broken by the arbitrary exercise of an option
permitted therein, to the disadvantage of the plaintiff; the remedy
should be in an action for damages. Blitz o. Union Steamboat Co.,
558.
6. Assumpsit to recover back the amount paid for a shipping receipt,
lies against the persons who originally issued the receipt, if the
merchandise therein described was not actually shipped as
agreed in the receipt, and the defendants have by words or acts, au-
thorized, consented to, connived at or sanctioned the act of the
person selling the receipt in thereby obtaining from plaintiff money
which he has turned over to defendants in payment of a debt due
them from himself. Tregent v. Maybee, 191.
7. A woman brought assumpsit on a claim assigned to her by her
husband for the value of wheat sown by him, but harvested by de-
fendant. Held, error to exclude any circumstances tending to show
the relation sustained by the husband or the parties to the land on
which the crop was grown; as, in this case, that the premises were
sold under a mortgage, and the sale was confirmed and a deed
given in the spring before the crop was harvested. Colwell v.
Adams, 491.
for salary due: MANDAMUS, 3,-p. 249.
Assumption-of mortgage, by purchaser: MORTGAGE, 6.-p. 312.
ATTORNEY AND COUNSEL.
A client buying land on which execution has been levied cannot,
against objection, show that his attorney advised him that the
execution was returned satisfied and the levy was no longer a lien,
for this would be hearsay. And if the advice were sound it would
be unnecessary for protection, while if it were not it could not affect
rights depending on the levy. Vroman v. Thompson, 452.
attorney acting as notary: APPEAL, 9,-p. 100.
notice to attorney of further proceedings: JUSTICE, &c., 2,—p. 461.
attorney controls judgment: Judgment, 6,—p. 354.
removal of executions from files: EXECUTION, 1,-p. 453.
counsel for prosecuting attorney: PROSECUTING ATTORNEY, 5,-p.
422.
services to PROSECUTING ATTORNEY, 3, 6,—p. 524.
See PROSECUTING ATTORNEY.
ATTORNEY GENERAL.
Where the attorney general appears for the people in a criminal case,
and confesses error, the Supreme Court can pay no attention to
suggestions from others in respect to the case. People v. Burt, 200.
Authority estoppel from alleging want of: PLEADING, 6,-p. 472.
Averment-in bill to quiet title: EQUITY, 7,-p. 240.
in declaration for injury: PLEADING, 4,-p. 628.
of date, changed in declaration: PLEADING, 9,-p. 466.
of termination of suit in declaration for MALICIOUS PROSECUTION,
-p. 463.
necessary to action: ASSUMPSIT, 3,-p. 116.
lacking in declaration for damages: ERROR, 11,-p. 601.
Avoidance-of insurance policy: INSURANCE, 7, 8,-p. 469.
of liability for assessments: INSURANCE, 5,-p. 287.
of tax sale, for formal defects: TAXES, 4,-p. 336.
1. Comp. L. § 7877 enabling the bail in criminal cases to take out a
mittimus from a justice for the re-arrest of their principal, is for
private purposes, and not public, and may be served by a private
person; the sheriff's charges for executing such a precept are there-
fore not a public charge. Kinney v. Kent Supervisors, 620.
2. A bench warrant is sufficient for the re-arrest, on public grounds,
of a person on bail. Id.
The moral obligation to pay a debt is a sufficient consideration for a
new promise to pay it, even though any legal liability therefor
has been suspended by discharge in bankruptcy. Edwards v. Nel-
1. Certificates of deposit are negotiable instruments; and where the
owner of such a certificate has indorsed it, and, through his
want of ordinary business caution, it has passed beyond his con-
trol, it seems that one who within a reasonable time purchases it
in good faith and for value is entitled to protection. But the
question of good faith is for the jury, if there is any evidence to
impeach it. Birch v. Fisher, 36.
2. It seems that the lapse of thirty-one days from the date of a certifi-
cate of deposit is not enough to raise the presumption that it is dis-
honored paper, even though such paper be due at its date. Id.
Bar-of writ of error or certiorari: ERROR, 1,—p. 171.
Bastardy-youth accused of, compelled to marry: HUSBAND, &c., 8,
-p. 607.
Bench Warrant-for re-arrest of principal: BAIL, &c., 2, p. 620.
Bids-for work in digging drain: DRAINS, &c., 2,-p. 639.
Bill-to annul marriage for duress: HUSBAND, &c., 8,—p. 657.
to cancel securities as obtained by DURESS, 1,-p. 432.
to enjoin collection of drain tax: DRAINS, &c., 2,-p. 639.
to obtain release of security: EQUITY, 11,-p. 230.
to quiet title: EQUITY, 7,-p. 240.
to quiet title; evidence objected to: APPEAL, 3,-p. 313.
to quiet title by vacating execution sale: APPEAL, 10,-p. 453.
for rescission of deed: EQUITY, 3; VENDOR, &c., 7,—p. 167.
to set aside cloud; decree declaring title: EQUITY, 10, p. 453.
to set aside drain proceedings: DRAINS, &c., 2,-p. 639.
to set aside settlement between townships: MUN. CORP., 6; EQUITY,
2,-p. 446.
to set aside tax sale: TAXES, 10, 12,—p. 336.
in aid of execution: EQUITY, 5, 6,-p. 148; Costs, 1,-p. 149.
for aid in execution of trusts: TRUSTS, 3,-p. 623.
in legislation; want of enacting clause: CONST. LAW, 1,-p. 129.
of particulars; what it cannot cover: PLEADING, 7,—p. 74.
of particulars; exclusion of: PLEADING, 8,-p. 8.
1. In Michigan a married woman cannot be held liable upon her note,
without connecting her with the consideration, as she has no general
power to make notes or other contracts. Schlatterer v. Nickodemus,
626.
2. A married woman is not bound by a promissory note which she
signs jointly with her husband for the amount of a judgment that
has been rendered against them both, if it only appears that she
signed it because he asked her to, and without knowing the use to
be made of it. This only makes her a surety for her husband, and
does not connect her with the consideration in such a way as to
reach her sole property. Id.
3. The mutual rights of parties to negotiable paper are determined, in
common law actions, by their respective positions on the paper at
the time it is negotiated and becomes the property of a bona fide
holder. Greusel v. Hubbard, 95.
4. The payee of a note cannot sue, as a joint maker, one who has pro-
visionally put his name on the back of it if he himself has after-
wards indorsed the note and put his own name before the other.
Id.
5. One who has been tricked into signing a promissory note will not
be liable upon it, unless his own negligence was so gross as to pre-
clude his defending against a bona fide purchaser of the paper.
Soper o. Peck, 563.
6. One who in good faith takes a note signed by a person of
whose incompetency to do business he has no notice, and in a
transaction which is not likely to call his attention to it, can recover
on the note. Shoulters v. Allen, 529.
7. A note that is given to the payee's agent and is turned over to the
payee before it is due and applied by him on an indebtedness of the
maker, will sustain a recovery by the payee if he has no knowledge
of any arrangement between the maker and the agent whereby the
latter was to keep the note in his own hands and use it in his own
business. McCormick Harvesting Machine Co. v. McKee, 427.
8. A party to a contract has no right to bring suit upon a note placed
by the other party in the hands of a third person as security, mere-
ly, for his fulfilment of the contract, so long as it is not agreed that
the note shall be liquidated damages for non-performance, and the
damages therefor have not been determined in a suit on the con-
tract. Rumney v. Coville, 186.
9. An amendment to a declaration on a promissory note so as to show
the full name of defendant instead of the initial by which he had
signed the note, should be allowed at any time if there is no ques-
tion of identity. Webber v. Bolte, 113.
10. In an action on a note the signature thereto proves itself if delivery
only is denied by the affidavit filed with the plea. McCormick
Harvesting Machine Co. v. McKee, 426.
11. Where the execution of a promissory note is denied on oath, the
general issue in an action thereon will admit evidence tending to
show that defendant made no such contract as was counted upon,
and that he was fraudulently got to sign the note when he thought
he was signing something else. Soper v. Peck, 563.
12. Where the defense to a promissory note is that it was obtained by
fraud, and that the consideration was misrepresented, it is within
the discretion of the trial judge to allow considerable latitude in re-
ceiving testimony. Gutsch v. Pittsley, 566.
13. The agent of a manufacturing corporation was one of a firm or
ganized for selling its goods. The firm owed money and the agent
furnished it from funds of the corporation, taking as security the
note of one of the partners on which the maker's father was sure-
ty. The note was payable to the corporation and was afterwards
taken up and another given. In a suit on the last note defendants
claimed that it had never been intended that it should be delivered
to the payee. Held proper to refuse to allow defendants to show
that certain members of the firm had, with others, projected a part-
nership for selling the plaintiff's goods some time before the note
was given; or to show what funds were in the firm's hands and that
the agent had charge of and used them; or what the surety's inten-
tion was, when he signed the first note, as to its delivery; or what
property belonging to the firm the corporation had taken possession
of on finding that their agent was short in his accounts. McCor-
mick Harvesting Machine Co. v. McKee, 426.
14. In an action on a promissory note in which the interest clause had
been altered by erasing the words "after maturity" some time after
it was given, the question was whether the alteration was made
with the maker's consent. The payee's wife testified to being in and
out of the room while the maker and the payee were talking about
some notes which the former had given to the latter, and being
asked what was said about their bearing interest, answered: "They
were all to draw interest but the ninety-day note" [which was not
the one in suit.] She was farther asked, "What was said by them
about your husband's erasing the word 'maturity,' if anything?"
and she answered, "Well, he said that was to be done. He says
'The notes were to draw interest, wasn't they,' and he says, 'Yes,
all but the ninety-day note.' He said that was all right." On cross-
examination she said she did not remember whether she saw any of
the notes or saw them signed, or when they were signed or whether
the conversation was before or after they were signed. Held that
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