ACCORD AND SATISFACTION.
Where a creditor agrees to accept a certain sum of money in
satisfaction of his demand, a part of which the debtor pays
and repudiates the balance, the creditor is entitled to rescind
the contract for an accord and bring his action on the orig-
inal demand without returning the amount paid, though the
debtor should be given credit for it in the final account.
Henderson v. McRae, 324.
ACCOUNTING-See INSANE PERSONS (3); PARTNERSHIP (2).
1. The joinder of several demands for different torts, and at-
tempted recovery on them in good faith in a single action, is
not ground for a new trial, on the theory that the presenta-
tion of demands on which no recovery could be had resulted
in prejudicing the jury and in an unjust verdict. Dickinson
v. Pere Marquette R. Co., 462.
2. A cause of action for malicious prosecution and one for slan-
der may be joined in one suit. Slater v. Walter, 650.
See HUSBAND and WIFE (1).
ADJOINING LANDOWNERS-See BOUNDARIES.
ADVERSE POSSESSION-See TENANCY IN COMMON.
AFFIDAVITS-See ATTACHMENT (1).
ALIMONY-See DIVORCE.
AMENDMENTS-See CONSTITUTIONAL LAW (4-7).
APPEAL AND ERROR,
1. Where, on a bill for dissolution of a partnership and for an
accounting, this court finds that the proof sustains the claim
of copartnership, the question whether the fact of partner-
ship is settled by an interlocutory decree of the circuit court
from which no appeal was taken, will not be decided. Chase
v. Angell, 1.
2. Assignments of error in excluding evidence will not be consid-
ered where no exception was taken and the court is not in-
formed, by an offer to prove or otherwise, what the testimony
would have been, though it is asserted in the brief that the
record makes the purpose of the evidence clear. Henderson
v. Agon, 252.
APPEAL AND ERROR-Continued.
3. Where, under the instructions, it was permissible for the jury
to include improper items in the verdict, and the verdict
was so extreme that it cannot be assumed that they were not
included, the judgment will be reversed. Farrell v. Jerry
Madden Shingle Co., 275.
4. On appeal to the circuit court from an order of the probate
court directing a father to contribute to the support of his
indigent, adult, insane child, the circuit court is limited in
its hearing to the reasons stated in the petition for an appeal.
In re Beers, 300.
5. An appeal to the circuit court from an order of the probate
court directing a father to contribute not to exceed a certain
sum to the support of his indigent, insane child on the grounds
(1) that the order for issuing of the citation varies from the
petition and order, and is void; (2) that no specific sum is
ordered paid, but leaves the amount with the asylum author-
ities to fix, substituting their judgment for that of the court;
and (3) that the appellant is not legally liable for the support
of the insane person, does not authorize the circuit court to
make an order for a different amount. Id.
6. The statement of the trial judge as to whether he struck out
certain evidence will be accepted as true, notwithstanding it
contradicts the printed record, where such course will save
to the plaintiff in error the benefit of his exception. Taylor
v. Ziem, 329.
7. Defendant in error, by joining in the bill of exceptions and in-
cluding assignments of error, is not entitled to have reviewed
errors favorable to the plaintiff in error, but must take out a
writ of error himself if he desires review of such errors. Haas
v. Malto-Grapo Co., 358.
8. Where, in an action to recover money paid to defendant in the
mistaken belief that defendant had overpaid plaintiff for a
half interest in certain wheat bought at auction, the evidence
is convincing that defendant knew what interest he was buy-
ing, that plaintiff in returning the money was not mistaken
about either the price bid per acre or the interest sold, but
about the proper mathematical calculation of what should be
paid for it, and the evidence of anything in the nature of a
compromise of any differences at the time of the repayment
is meager, and that of a miscarriage of justice is strong,
the decision of the trial court denying a new trial will be
overruled, the judgment reversed, and a new trial ordered.
Stowell v. Ames, 440.
9. The decision on appeal as to the legal effect of certain ware-
house receipts and of their delivery to and retention by de-
fendants is the law of the case on retrial in the circuit court.
Julius Kessler & Co. v. Veio, 472.
10. On certiorari to review the action of a circuit court in denying
a mandamus, it having been denied on the merits, a deter-
mination that the judge was wrong in his conclusion on the
merits does not require that his decision be reversed and the
writ granted, if in fact the remedy sought was an improper
APPEAL AND ERROR-Continued.
one, since in such event the case would be affirmed, under
the rule that a case properly decided will not be reversed be-
cause a wrong reason was given for the decision. Dickinson
v. Board of Canvassers of Cheboygan Co., 513.
11. Where plaintiff's counsel conceded that the declaration did not
contain a sufficient averment of a fact which he contended
was not essential, but the court held the averment to be nec-
essary to his cause of action, and directed a verdict, this
court cannot reverse the judgment on the ground that the
fact in question is sufficiently averred. Michaels v. McRoy,
12. Where a claim of appeal was filed nearly a year before the set-
tlement of the case on appeal, it is not fatal that another
claim was not filed within 40 days after the settlement of the
case (Act No. 243, Pub. Acts 1899), no harm having re-
sulted. Patterson v. Hynes, 581.
13. Errors not presented by the record are not available on error.
Griffin v. Kennedy, 583.
14. Whether an instruction which the verdict shows the jury had
no occasion to apply was correct will not be considered on
error. Major v. Brewster, 623.
15. Assignments of error not discussed in the brief of plaintiff in
error will be deemed abandoned. Shaw-Walker Co. v. Fitz-
simons, 626.
16. Where there is evidence upon which to base the verdict, the
question of its excessiveness is one of fact which will not be
reviewed, unless brought to the attention of the trial court
by a motion for a new trial. Brockmiller v. Industrial
Works, 643.
See CERTIORARI (2); CRIMINAL LAW (3); DAMAGES (2);
DRAINS (9, 10); EVIDENCE (3, 4); JUSTICES OF THE PEACE
(1, 2); LIBEL AND SLANDER (6); PARTNERSHIP (9); SAVING
QUESTIONS For Review.
APPEARANCE-See ATTACHMENT (2).
ARGUMENT OF COUNSEL-See EMBEZZLEMENT (5); TRIAL (4, 5).
ASSAULT AND BATTERY.
1. Where, in an action for assault and battery, it appears that
defendant, in the presence of others, rudely and insolently laid
his hands on plaintiff, a clerk in his store, under circum-
stances implying an accusation of dishonesty, and led her by
the hand through his store and to the basement, and there
took from her a sum of money which he said he would keep
until she proved it was hers, an instruction that the damages
must be compensatory, and if the assault was committed
under circumstances of peculiar indignity and humiliation,
the jury might consider the wounded feelings of plaintiff,
and the humiliation and disgrace, is proper. Henderson v.
Agon, 252.
ASSAULT AND BATTERY-Continued.
2. Plaintiff is entitled to lay the whole matter before the jury,
and the jury is properly permitted to consider the actions and
words of the defendant to determine the character of the as-
sault and battery, and the court cannot properly instruct, as
a matter of law, that the loss of the money was not damage
flowing from the assault. Id.
ASSISTANCE, WRIT OF-See TAXATION (5).
1. An affidavit for attachment which does not state that the de-
fendant therein is indebted to the plaintiff, but states that he
is indebted to the deponent, one of the plaintiffs, is jurisdic-
tionally defective, and not subject to amendment. Butcher
v. Cappon & Bertsch Leather Co., 552.
2. The dissolution of an attachment, by giving the statutory
bond to pay any judgment which may be recovered in the suit
commenced by the writ, operates as an appearance, converts
the suit from an action in rem into an action in personam,
and waives any defect in the affidavit. Id.
AUCTIONS AND AUCTIONEERS.
In an action to recover money paid to defendant in the mis-
taken belief that defendant had overpaid plaintiff for a half
interest in certain wheat bought at auction, evidence exam-
ined, and held, that it could not be said, as a matter of law,
that defendant did not suppose he was buying the entire in-
terest in the wheat, and that an instruction was therefore
not erroneous that permitted the jury to find that there was
no sale because of the failure of minds to meet. Stowell v.
Ames, 439.
In an action against a bailee for the loss of goods, involving
an issue whether he was bailee for hire, evidence examined,
and held, to show that he agreed to store the goods as part of
an agreement for the rent of certain premises, and was there-
fore liable for their loss. Henry v. Salomon, 467.
Where a deed of trust provides: "The trustees during my
life are authorized to use for the support and maintenance
of my son H., his wife and family, such sum as they may
deem necessary, not exceeding *
per month. Pay-
ment thereof may be made directly to said H. or to his wife,
or to any of his children, or the trustees may themselves ex-
pend such money in such support and maintenance"-the
trustees, while not bound in advancing money to H. to ob-
tain his promise to repay the same, may do so, and, this hav
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