CONTRIBUTION -See NEGLIGENCE (11).
CONTRIBUTORY NEGLIGENCE-See MUNICIPAL CORPORATIONS (2); NEGLIGENCE (1); RAILROADS (2); STREET RAILWAYS (1, 4). CONVEYANCE OF FUTURE IMPROVEMENTS-See SPECIFIC PERFORMANCE (6).
1. It is not a violation of the "Blue-Sky law" (3 Comp. Laws 1915, 11954) for each owner of stock in a corporation to sell his stock when not made in the course of con- tinued and successive transactions of a similar nature. Dows v. Schuh, 133.
2. Where money represented by demand notes was lent to a corporation in good faith, the lender or his personal rep- resentatives had a right to demand and take security from the corporation for its repayment, even if the di- rectors had some ulterior or sinister purpose in borrowing the money and in giving the mortgage. Freeman v. Mitch- ell, 380.
3. Where the mortgage given to secure the demand notes recited that it was authorized by the directors, and the minutes also recite and admit the debt secured, any im- plied power of the secretary of the corporation to execute the notes in question was immaterial. Id.
4. A mortgage given by the directors of a corporation to secure demand notes given from time to time for money borrowed, held, not an assignment within the meaning of the articles of association providing that no assign- ment of the property of the company for the benefit of creditors should be made by the directors unless author- ized by a majority vote of all the stock issued. Id.
5. Said mortgage was not invalid simply because it secured the payment of notes indorsed by the directors. Id.
6. The contention that the price bid at the foreclosure sale was inadequate, held, not supported by the evidence. Id. 381.
7. In a stockholder's suit to set aside the foreclosure of a mortgage given by the directors of a corporation on the ground that the mortgage indebtedness was in whole or in part fictitious, his right to relief depends upon some proof that the debt was not created at all or was created for some evil purpose shared by the mortgagee and the directors. Id.
8. Where defendant, a stockholder and promoter of plaintiff corporation, stood in a fiduciary relation to said corpo- ration and its other stockholders, and received stock to be used for the benefit of plaintiff, for which he refuses to account, a court of equity has jurisdiction to compel restitution. American Forging & Socket Co. v. Wiley, 664.
9. Where defendant received stock of plaintiff corporation to be used for its benefit, he is in no position to deny the legality of the organization of plaintiff, or the validity of the contract whereby he received said stock. Id. 10. Since whatever would be an injury to the shareholders would be an injury to their collective or corporate in- terests, the company is the proper plaintiff to enforce such rights. Id.
11. Where defendant received 100 shares, and the evidence supports the conclusion that his services exceeded the value of 20 shares, the decree of the court below requiring him to surrender for cancellation 80 shares will be modi- fled to 60 shares and affirmed. Id.
See FRAUD (1, 2); FRAUDS, STATUTE OF (2, 3).
CORPUS DELICTI-See CRIMINAL LAW (16, 17).
CORRECTING CLERK'S ERROR-See DISMISSAL AND NONSUIT. CORRECTION OF MISTAKE-See MASTER AND SERVANT (32). CORROBORATION-See PERJURY (2).
COSTS IN CIRCUIT COURT-See COURTS (5).
COUNSEL'S BRIEF-See APPEAL AND ERROR (1).
COURSE OF EMPLOYMENT-See MASTER AND SERVANT (17). COURT RULES-See TRIAL (7).
1. Where notice of appeal to the circuit court from the probate court was not served on the adverse party within 15 days from the date of the order directing the manner of such service, as required by section 9, chap. 65, of the judicature act (3 Comp. Laws 1915, § 14153), the circuit court was without jurisdiction to hear the case or render a judgment; said section of the statute being mandatory, and there being no claim that service of notice was waived. Sokup v. Davis' Estate, 144.
2. On such appeal, no certificate of the probate judge or affidavit of any person may be considered as impeaching the record of the probate court; the proper practice re- quiring an amendment of the return if the facts are not therein stated truly. Id.
3. Where the appeal bond was not approved by the probate judge within 20 days after the return of the commis- sioners on claims, as required by section 3, chap. 65, of the judicature act (3 Comp. Laws 1915, § 14147), and the time was not extended by the probate judge, the
circuit court was without jurisdiction to hear the case. Id.
4. Jurisdiction of the circuit court was not waived by de- fendant by taking part in the trial, where repeated mo- tions were made to dismiss the appeal, and at the trial objection was made to the introduction of any evidence by plaintiff. Id.
5. In actions arising out of contract, jurisdiction of the court is determined by the amount demanded in the plaintiff's pleadings, and not by the sum actually recoverable or that found by the judge or jury on the trial; the only effect of failure to recover in the circuit beyond the amount the party could have recovered in justice's court being the award of costs against him. Zimmerman v. Miller, 599.
CREDITOR'S BILL-See HOMESTEAD (2).
1. In a prosecution under an information charging the tak ing of indecent liberties with a female child under the age of 14 years, without committing or intending to com- mit the crime of rape, the testimony of both the girl and her father that she was 13 years of age, held, sufficient to sustain a finding that she was under the age of 14 years. People v. Smolkiewicz, 1.
2. In view of Act No. 89, Pub. Acts 1915 (3 Comp. Laws 1915, 14565), a conviction under said information will be sus- tained, although the evidence was sufficient to show that the greater offense of rape had been committed. Id. 3. In a prosecution under an information charging, in the first count, the commission of the crime of rape, and in the second the taking of indecent liberties with a female child under the age of 14 years, without committing or intending to commit the crime of rape, the testimony of the prosecuting witness as to what occurred at the time it is claimed the offense was committed, was admissible. People v. Parmalee, 4.
4. It was reversible error for the court, in instructing the jury as to the offense charged in the second count, to omit to add the words of the statute, "without committing or intending to commit the crime of rape." Id.
5. Although the testimony given by the people's witnesses is difficult to harmonize, it cannot be said, as a matter of law, that there was no testimony that would justify a conviction under the second count. Id.
6. The testimony of a character witness, in a criminal prose- cution, that the reputation of defendant was good was
admissible, although he admitted, on cross-examination, that he had never heard anything said about defendant's reputation, one way or another. People v. Woods, 11. 7. It was error for the court below to refuse defendant's requested instruction that in a criminal prosecution the accused is presumed to be of good character. Id.
8. Where defendant's character evidence was negative, it was error for the court below to belittle it by stating to the jury that it was not "much evidence of character or reputation." Id.
9. It is the general rule that, where several persons are en- gaged in one common unlawful enterprise, whatever is said or done by any one of them in the prosecution of the common enterprise, or while it is still in progress, is evidence against all the parties to it. Id.
10. In a prosecution for arson, a conspiracy to burn the building in question having been prima facie proven, a conversation between witness and one of the conspirators in connection with work being done to further the con- spiracy, was admissible. Id. 12.
11. In such prosecution, testimony of one of the conspirators implicating his co-conspirators, was admissible. Id.
12. Where, in a criminal proceeding, after the jury had been out over two hours, they were brought into court at their request, and the foreman informed the court that one of the jurors had been approached, and the trial judge in- quired of the foreman if they could render a fair and impartial verdict regardless of the incident, but no in- quiry was made of any other juror, and no further in- vestigation had, and nothing was done to protect the rights of defendant, and the jury, after retiring for a few minutes, brought in a verdict of guilty, the motion of defendant for a new trial should have been granted. People v. Levey, 129.
13. In a prosecution under 3 Comp. Laws 1915, § 15292, charging defendant with breaking and entering "the store, not adjoining to or occupied with a dwelling," evidence that the store broken into was not adjoining to or occu- pied with a dwelling house was necessary. Id.
14. The jury in orally rendering their verdict is not required to state all the language found in the act defining the offense. Id.
15. In a prosecution for homicide, the denying a motion for a continuance, held, not to amount to abuse of discretion. People v. Jackzo, 183.
16. Testimony by the first witness as to a statement of the defendant that an Indian had killed deceased, and also as to witness' examination of the body and its condition, showing acts of violence, held, to comply with the rule
requiring the showing of the corpus delicti in a homicide case before the admission of other testimony; it not being necessary to show the finding of the dead body and its condition by medical testimony. Id.
17. Although, in a prosecution for homicide, the death and its character should first be shown, there are exceptions where the same set of facts, in cases of circumstantial evidence, tend to connect the defendant with the com- mission of the crime, and also at the same time to prove the corpus delicti. Id.
18. A voluntary statement by defendant that "I took a stick to hit Liberty (deceased) with, and he says, 'Don't hit me,' and I threw the stick in the brush," held, admissible. Id. 184.
19. An instruction by the court as to the weight to be given to statements or admissions of accused, held, not erro- neous, in the absence of request for fuller instructions upon the subject. Id.
20. The question as to whether a maple stick 7 feet 1% inches long, with a hook 1 foot and 10 inches long, and being about 6 inches in circumference at the hook end, was a dangerous weapon, or one that was likely to kill or maim, was properly submitted to the jury as a ques tion of fact. Id.
21. Where there was no testimony showing or intimating in what township, county, or State, the crime was committed, held, that the people utterly failed to prove the venue. Id. 22. Where the certificate of the trial judge to the bill of ex- ceptions shows that it was accompanied by the assign- ments of error, and the court certifies that all the testi- mony introduced in the case that is necessary to present the questions of law raised by the bill of exceptions and assignments of error is there embraced, an assignment that the people failed to prove the venue raised the ques- tion of the jurisdiction of the court. Id.
23. The jurisdiction of the circuit court of a county is re- stricted to the trial of persons charged with the commis- sion of offenses in that county, except in case of change of venue. Id.
24. The court will not take judicial notice of the existence of an unincorporated hamlet or settlement. Id.
25. A conviction and sentence for homicide cannot be sus- tained where the venue was not proved by competent evidence beyond a reasonable doubt. Id.
26. In a prosecution for larceny, the granting of a motion indorsing upon the information the name of a witness on the day the trial started, 12 days' notice of such motion having been served upon defendant, and there being no claim of surprise, or that more time was needed, and no
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