appeal from justice; costs on discontinuance, 474 (1-2).
appeal from justice's judgment enforcing mechanic's lien, 370.
appeal from probate, for lack of testamentary capacity, 347 (6).
from taxation of costs; special exceptions, 474 (4).
exclusion on appeal of depositions objected to below, 52 (2).
costs of Supreme Court upon appeal, 637 (2).
Appearance of principal defendant after disclosure in garnishment,
394 (4).
appearance to demur waives objections, 522 (1).
appearance waives defective appeal from justice's court, 409 (1).
Application-for insurance should be in writing, 131 (3).
application for insurance, filled by insurance agent, 131 (1).
application for division of townships, 517 (1, 3).
application to dissolve attachment, 164 (2).
application to satisfy mortgages in order, 552 (4).
Appointment-of administrator; review of order setting aside, 537.
appointment of executors: stipulation thereon, 451 (1).
Appropriation of moneys collected for drain taxes, 159 (3).
ARBITRATION AND AWARD.
The adjournment of an arbitration is within the power of the arbitra-
tors and where the continuance of a lease depends upon the result
of the arbitration, such an adjournment cannot deprive the tenants
of their rights. Abeel v. Hubbell, 37.
Assault-insulting language as provocation to affray, 617 (7).
evidence in case of indecent assault; hallucinations, 425 (1).
murderous assault; admission of evidence, 289 (6-8).
conviction for assault not allowed on information for murder, 24 (1).
ASSAULT AND BATTERY.
Conviction for assault and battery was set aside where the evidence
tended to show that the act complained of was the forcible ejection
of a tortious intruder by employees of the respondent who was an
agent in charge of the premises. People v. Adams, 105.
Assessment-taxpayer's right to know his assessment, 28 (2-3).
assessment not necessarily an element of partnership, 106.
assessments for drain taxes, not to be lumped in one sum, 159 (3).
ASSIGNMENT.
1 The transfer by a debtor to a creditor of the title, possession and
control of the debtor's property, whereby the transferee receives ad-
vantages in the exclusion of other creditors, furnishes a valuable
consideration for the reduction of the debt and the release of per-
sonal liability. Loud v. Winchester, 174.
2 The right of action upon a contract for breach of the warranty
therein is assignable. How. St. § 7344. Felt v. Reynold's Rotary
Fruit Evap. Co., 602.
delivery in escrow of assignment of contract, 76 (1).
transfer of paper by assignment, 525.
protects goods from levy for personal taxes, 272 (3-4).
of right of action on covenant against incumbrances, 587.
of debt secured by mortgage; evidence of title, 124 (3).
on foreclosure, of certificate of tax purchase, 22 (2).
cost of redeeming from prior mortgage, 552 (1).
for benefit of creditor; personal taxes, 272 (4).
assignment of counsel in criminal case, 289 (3).
Associations-elements of partnership relation and liability, 106.
action for money paid to a mutual association, 487.
ASSUMPSIT.
1 Assumpsit will lie in justice's court upon an ordinary money boud
for any amount within its jurisdiction that may be necessary to in-
demnify for the breach thereof, whatever the penalty of tlie bond
may be. Probate Judge v. Dean, 387.
2 Use and occupation may be sued for generally or specially without
reference to the form of the lease under which they are enjoyed.
Conkling v. Tuttle, 630.
3 A man belonged to a mutual aid society to which he paid certain
moneys which, according to the scheme of the society, were to be
paid out again to the various members. Thinking that he had re-
ceived no consideration for these payments he afterwards brought
an action as for money had and received, and sned two of the mem-
bers jointly with the society. Held that the joint action would not
lie; and as the money had been disposed of with plaintiff's consent
the form of action seems inappropriate. Murphy v. Bidicell, 487.
4 A delaration in justice's court set forth that by false warranty of a
horse defendant had obtained plaintiff's note for it, and that on dis-
covery of the fraud plaintiff had rescinded the sale, tendered back
the horse and demanded the note, but the defendant had refused to
surrender it, to plaintiff's damage, its amount. Held that this may
be sustained as a declaration in assumpsit. Thomas v. Schram,
5 In suing for the price of a quantity of timber shipped to defendants
at a distance, and received subject to inspection, it is proper for
plaintiff to show, as an element in the case, how much was loaded
for shipment, if it appears that some of it was taken by defendants
before inspection and that they used some which did not pass.
McLennan v. McDermid, 468.
6 A borrower went to a loan agent of an insurance company for
money but afterwards negotiated the loan himself, dealing with the
company personally and by letter. The money went to him through
the hands of the loan agent, who insisted on retaining part of it for
his services, and compelled the borrower to give a receipt showing
a settlement in full. Held, that in a suit by the borrower against
the loan agent for the amount withheld, it was proper to introduce
the letters and to show what passed between the parties when the
receipt was extorted McAllister v. Engle, 56.
7 In an action by a borrower to recover from a loan agent the
amount of commissions which the latter had withheld on delivering
the money, the plaintiff is entitled to show how defendant obtained
the receipt which he gave for the money, and that he gave it under
protest. Id.
against former partners for amount due on settlement, 590.
to recover amount of tax consented to by plaintiff, 32.
ATTACHMENT.
1 Attachment proceedings before a justice of the peace are special and
statutory, and will not support a lien unless all the provisions of the
statute as to the levy and execution of the writ are strictly observed.
Fairbanks v. Bennett, 61.
2 One who has bought property under an arrangement which would
be fraudulent as against the creditors of the vendor, or by an un-
ratified sale in which the vendor's agent has exceded his authority,
obtains no title which he can protect from attachments sued out by
the vendor's creditors. Newburn v. Woods, 610.
3 Proceedings to dissolve an attachment are special and not according
to the course of the common law; they are interlocutory and do not
affect the merits of the main action. Genesee County Sav. Bank v.
Mich. Barge Co., 164.
4 An application for dissolution of an attachment is in the nature of
a motion and can be disposed of at chambers. But there must be a
hearing and a trial of the questions of fact involved before a judge
or circuit court commissioner, and he is to adjudicate questions of
both law and fact and may apply the rules that govern the trial of
such issues.
5 When the facts set up in the affidavit for an attachment are denied
upon a motion to dissolve it, the plaintiff in attachment has the bur-
den of protecting his lien by proofs outside of the affidavit. Id.
6 On an application to dissolve an attachment granted on the ground
that defendants had disposed of their property with intent to defraud
creditors, it was proper to question a witness who testified that he
held a mortgage on some of defendant's property, as to what the
particular property was and whether he had ever paid defendants
anything for the mortgage.
Id.
7 After trespass has been brought for the seizure of goods under an
attachment which was not properly served, the defect in service
cannot be cured, for the purposes of the action in trespass, by tak-
ing out a new attachment. Fairbanks v. Bennett, 61.
8 The purchaser of goods exempt from execution obtains a title which
overrides the lien of any subsequent attachment levy, and indeed of
any previous levy, unless it be for unpaid purchase money; and the
title cannot be destroyed by subsequent admissions or acts of the
debtor. Buckley v. Wheeler, 1.
of property based on judgment in another State, 52 (1).
replevin for goods taken by attachment, 633 (2).
effect of attachment on subsequent action of replevin, 423 (2).
judgment in replevin for attached property, 529 (1).
Attendance of sheriff upon court; fees, 340 (2).
ATTORNEY AND COUNSEL.
1 Where counsel has been assigned to a person on trial and has acted
without objection from his client, the latter's conviction cannot be
set aside on the ground that counsel was not of respondent's choice.
People v. Murray, 289.
2 Communications made to a prosecuting attorney by the complain-
ing witness in a criminal case are not privileged, so far as the wit-
ness is concerned, for he is not the prosecutor's client and cannot
control the use of the communications, which are made for purposes
of public justice. Whether the State cannot sometimes claim the
privilege-Q. People v. Davis, 570.
attorney can consent to judgment in garnishment, 394 (3).
conduct of counsel in presenting case; review, 215 (9).
relationship to judge not ground for rehearing, 215 (12).
Averment-in jugment creditor's bill, of levy by sheriff, 637 (1).
1 The files and record in a case are admissible in a suit upon recog-
nizance of special bail taken therein. Heymes v. Champlin, 26.
2 In an action upon a recognizance of special bail, the omission to al-
lege in the declaration that a fi. fa. has been issued and returned
unsatisfied, will not, it seems, defeat a judgment if the objection has
not been seasonably interposed. Id.
1 Where the owner of a team, after hiring it out and binding himself
to furnish a driver, makes a temporary arrangement with the other
party whereby the latter takes the team into his own charge and
promises to furnish a driver himself if he has occasion to use it, the
transaction, being for the benefit of both parties, amounts to a bail-
ment for hire, and the party in possession of the team is bound to
take such ordinary care of it as a prudent owner would take. And
the driver whom he furnishes is his servant and not that of the
owner of the team. Hofer v. Hodge, 372.
2 The fact that a business firm not organized for banking purposes
was in the habit of receiving an individual's money and allowing
him interest on it does not tend to show that it was his depositary
of securities. Hathaway's Appeal, 113.
delivery to bailee of assignment of contract, 76 (1).
replevin by bailee on paying consignee's debt, 423 (2).
bai.ment of goods held by receiver, 484 (1).
BANKRUPTCY.
A composition of creditors is not effective, under the Bankrupt Act,
to discharge any portion of a debt unless the creditor's name and
address and the amount of his claim were set forth in the statement
made by the debtor at the meeting of creditors at which the resolu-
tion of composition was adopted, nor unless such resolution was
recorded by order of the court which confirmed the composition.
Shaw v. Vaughan, 405.
1 A shareholder in a bank is, as regards creditors, not only a surety
for the bank but as one of the associates therein, he is held to have
undertaken, by the terms of association, to be bound for the debts
which it contracts. How. St., 3174. And the liability of the
shareholders is commensurate with that of the corporation and
extends to costs and interest on judgments. Warren v. Grand
Rapids Sav. Bank, 557.
2. The estate of a non-resident stockholder in a bank may be held rata-
bly liable for debts of the bank that matured before the passage of
Act 141 of 1877, and to such debts the limitations imposed by that
Act as to service within the jurisdiction, cannot apply. And a judg-
ment against the corporation is prima facie evidence of the liability;
and the entries on the stock ledger are admissible to show that de-
cedent was a stockholder. I.
3 A statute giving the creditors of a banking corporation a new rem-
edy against stockholders cannot affect those who took shares in the
corporation before its passage; nor can it, so far as existing claims
are concerned, supersede the remedies in force when they arose and
in reliance upon which they were contracted. Id.
special deposits with non-banking firms, 112 (1, 3, 4), 113 (5).
Bar-of chancery proceeding to action at law, 390 (1).
Benefit association-action against for money paid, 487.
Bill-of costs; affidavit attached thereto, 474 (3).
—review on appeal from taxation, 474 (4).
of particulars in prosecution for adultery, 569 (1).
of sale; construction and binding nature, 491 (1).
-when taken as security, must be filed, 633 (1-2).
in chancery does not lie for less than $100, 159 (2).
case alleged by bill must be established by proofs, 318.
bill for accounting lies wherever fiduciary relations exist, 157.
for accounting by trustee; evidence as to management, 174 (2-3).
bill for divorce, not amendable to annul marriage, 429 (2).
to enforce contribution from representatives of co-surety, 7 (1), 8 (3).
bill by judgment creditor to set aside deed, 637 (1).
to cancel judgment entered in another court, 258 (2).
to set aside judgment for fraud, 52 (1).
bill of interpleader based on township drain proceedings, 159 (1).
bill of review after foreclosure, 489 (1-3-4).
1 An instrument promising to pay a stated sum, with interest, "on or
before two years after date," but providing that if it be paid within
one year no interest shall be paid, is not a promissory note, as it
lacks certainty in time and amount. And as it is not negotiable it
can only be transferred by assignment, and though the payce may
perhaps assign it by indorsing it he does not thereby make himself
liable for the amount to be paid. Story v. Lamb, 525.
2 B and F were litigating in equity the ownership of certain logs, and
B filed a separate bill to restrain F from interfering with them. In
this latter proceeding a receiver was appointed by consent of the
parties, and he, being authorized to sell the logs, delivered them to
F and took his notes therefor, upon which he afterwards brought
suit. The bill in the last mentioned suit was dismissed and the re-
ceiver thus became a mere bailee for the party actually entitled to
the logs. Held that in the suit by the receiver on the notes F had a
right to show that it was understood when they were given that
they were to be paid only if the logs should be adjudged not to be-
long to him, and that as the logs were in fact his, the notes were
without consideration. Maltz v. Fletcher, 484.
3 Failure of consideration may always be shown in a suit on a con-
tract; and in an action on negotiable paper proof may be made of
the purpose for which it was given, or that the purpose does not
require the enforcement of payment. Id.
4 The presumption that a note which specifies no place of payment is
to be paid at the residence of the person liable upon it, is one that
applies to indorsers. McIntire v. Mich. State Ins. Co., 188.
denial of execution of corporate note, 438 (2).
payment of premium note, 188 (1).
presumption of payment of demand note, 415 (4).
Board-of supervisors; claims for sheriff's fees, 340 (1-3-4).
cannot delegate auditing duty, 340 (5).
mandamus to pay county obligations, 16 (1).
application to divide town, 517 (1-3).
township board; meetings with notice, 528.
highway money taxes levied by town board, 509 (1), 510 (3).
Bona fide-holder; of forged mortgage, 375 (2-3).
of negotiable paper of corporation, 438 (2-3).
purchaser; rights conflicting with vendor's lien, 77 (2).
Bond-of administrator; action on in justice's court, 387 (1).
of assignee for benefit of creditors, 272 (3).
of executor, necessary to authority. 451 (2).
of guardian for making sale; approval, 304 (9).
on chancery appeal; liability to pay costs, 153 (1).
selling liquor without giving bond, 582, 628.
bill for contribution from representatives of co-surety, 7 (1), 8 (3).
action of covenant on bond in justice's court, 497.
Bonds-deposited with a non-banking firm, 112 (1-3-4), 113 (5).
Boom companies-obstruction of navigable streams, 203.
Boundaries-to be set forth in petition for division of town, 517 (2).
Breach of conditions of bond; jurisdiction, 387 (1-2).
of condition, by municipality accepting dedication, 320 (1).
of covenant against incumbrances, 587.
of promise; action for; evidence, 336 (1), 337 (2-4).
of warranty; right of action for, 602 (5).
Bribery-irrelevant to charge of indecent assault, 426 (3).
BRIDGES.
A township can hardly be held liable for injuries caused by latent
defects in a bridge over a mill-race where they do not affect the
traveled part of the way and where the miller has apparently not
been negligent in performing his statutory duty of looking after the
condition of the bridge. Abernethy v. Van Buren Township, 383.
liability for security of township bridges, 146 (1), 147 (2, 7).
Burden of proof-of fraud is on complainant, 267 (3).
of payment of a debt, 415 (6).
that a note has not been paid, 415 (5).
is on complainant to establish allegations of bill, 318.
in sustaining lien of attachment, 164 (3).
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