APPEAL AND ERROR-Continued.
the opposite party in proposing amendments to the record, the
trial court, upon a certificate that a transcript of the whole or
of certain parts of the testimony is necessary in order to settle
a bill of exceptions, may require the appellant, at his own
expense, to furnish such transcript to the appellee, to enable
the latter to prepare amendments to the bill. Gillies v. Kent
Circuit Judge, 687.
13. An appeal will lie from an order dismissing a cross-bill on
demurrer before a final determination upon the original bill.
Clutton v. Clutton, 690.
14. Where the sureties upon an appeal bond fail to justify, as
required by 3 How. Stat. § 7001, and the appellant does not
proffer a sufficient bond under section 7018, the appeal is prop-
erly dismissed. Cole v. Wayne Circuit Judge, 692.
15. An instruction that the plaintiff has made no case under the
pleadings, if in fact founded upon an erroneous ruling, will
not be sustained under the contention that the error was with-
out prejudice because of a fatal defect in plaintiff's proofs in
another particular, where the omission relied upon was clearly
an oversight, and might have been supplied had attention
been directed thereto upon the trial. Findlay v. Chicago, etc.,
R. Co., 700.
See COSTS; CRIMINAL LAW (6); GARNISHMENT (1); JUSTICES OF
THE PEACE (6); SUMMARY PROCEEDINGS (4); TRIAL (2); WRIT
OF ERROR.
APPEARANCE-See JUSTICES OF THE PEACE (1).
APPLICATION OF PAYMENTS.
1. In trover by the assignee of a chattel mortgage against an
attaching creditor of the mortgagor, the defendant cannot
complain that moneys collected by the plaintiff upon certain
accounts assigned as collateral to the mortgage, instead of
being credited thereon, were applied to the payment of other
claims against the mortgagor, to secure which plaintiff held a
second assignment of the accounts, executed prior to the
levy. Hull v. Bernatz, 551.
2. A., with a view to securing certain creditors, executed a chattel
mortgage to B., assigning some accounts as collateral, and
then gave a bill of sale of the accounts and the mortgaged
property to C. The latter purchased B.'s mortgage, taking an
assignment to D., who was interested with C. in the claims
secured by the bill of sale. The accounts were turned over to
C., who collected the same, and applied the amount upon his
debt. In trover by D. against an officer who had seized the
goods on attachment against A. subsequent to the several
transfers, it was held that the defendant had no cause to com-
plain of the application made of the moneys so collected. Id
APPRAISAL-See FIRE INSURANCE (14)
ARBITRATION AND AWARD.
1 Where an award of arbitrators leaves the amount due from
one party to the other to be determined from an examination
ARBITRATION AND AWARD-Continued.
of certain books of account, and such accounts are so incom-
plete that the amount awarded cannot be computed therefrom
without the aid of other evidence, the award is void for uncer-
tainty. Mather v. Day, 371.
2. An award that is so uncertain and ambiguous in some of its
parts that it cannot be enforced is void in toto, although suffi-
ciently definite in other respects; and especially is this so in a
case where it was the intent of the parties that all differences
existing between them with reference to the subject-matter of
the submission should be determined by the arbitrators. Id.
ASSAULT.
1. In a prosecution for an assault with intent to do great bodily
harm less than the crime of murder, testimony tending to
show that the respondent entertained an ill will towards the
complaining witness, that on the occasion in question he
struck her upon the head with a club, felling her to the ground,
at the same time threatening to kill her, and that the blow
produced a contused and lacerated wound, is sufficient to sus-
tain a conviction of the offense charged. People v. Conley, 424.
2. Evidence that one struck another upon the head with an iron
bar, with sufficient force to produce unconsciousness, justifies
the finding of an intent to do great bodily harm less than the
crime of murder, although the ulterior motive of the assault
may have been robbery. People v. Smith, 431.
ASSIGNMENT FOR BENEFIT OF CREDITORS.
A mortgage given to secure a bona fide indebtedness is not
invalid by reason of its proximity to a general assignment
by the mortgagor for the benefit of creditors, where the
mortgagee, at the time of taking the security, had no notice
or knowledge that an assignment was contemplated. Such
a transaction does not constitute an illegal preference within
the meaning of the assignment law. Kalamazoo Spring &
Axle Co. v. Winans & Co., 193.
ASSIGNMENT OF ACCOUNTS-See APPLICATION OF PAYMENTS.
ASSIGNMENT OF MORTGAGE-See MORTGAGE (6).
Under section 6840, 2 How. Stat., providing that a justice's
attachment shall be executed at least six days before the
return thereof by seizing goods of the defendant, making an
inventory thereof, and serving a copy of the attachment and
inventory upon the defendant if he can be found within the
county, and section 6841, authorizing substituted service if the
defendant cannot be so found, the service, whether personal
or substituted, must be made at least six days before the
return day of the writ. Tunningly v. Butcher, 35.
See ESTOPPEL; MALICIOUS PROSECUTION.
Communications to an attorney by one who has employed him
on behalf of anothe, made in the presence of the latter and
ATTORNEY AND CLIENT-Continued.
with reference to his business, are not privileged from dis-
closure in a subsequent suit between the two, since the state-
ments cannot, as between the parties, be said to have been of
a confidential nature. Frank v. Morley's Estate, 635.
1. Under article 6, § 29, of the Constitution, which provides that
"all persons shall, before conviction, be bailable by suffi-
cient sureties, except for murder and treason when the
proof is evident or the presumption great," and 2 How.
Stat. § 9479, which authorizes justices of the peace to let to
bail in all cases where the punishment for the offense
charged shall be less than imprisonment for life in the state
prison, a justice may admit to bail a person charged with a
crime the punishment for which is imprisonment for life or
for any number of years, as in case of rape. People v. Bur-
well, 28.
2. An information charged the felonious breaking and entering
n the night-time of a shop not adjoining to or occupied with
a dwelling hou e, with intent to commit the crime of larceny.
The respondent entered into a recognizance before the court
in which the information was pending, conditioned for his
appearance to "answer to an information on file against him
for burglary." Held, that the recognizance sufficiently iden-
tified the offense charged, and that an action thereon was
maintainable under 2 How. Stat. § 9485, providing that no
action brought upon any recognizance shall be barred or
defeated by reason of any defect in the form of the recogniz-
ance, if it sufficiently appear therefrom at what court the
party was bound to appear, and that the court before whom it
was taken was authorized by law to take it. People v. Hanaw,
3. The sureties on a recognizance requiring the principal "to
appear at the next term of the court, and not depart therefrom
without leave until discharged," are not discharged by a con-
tinuance of the case to the following term, granted upon the
application of the principal at the term at which he was
bound to appear. Id.
4. Under 2 How. Stat. § 8457, providing that the judgment upon
a forfeited recognizance shall be for the amount of the pen-
alty thereof, interest from the date of forfeiture cannot be
included in the judgment. Id.
1. Under 1 How. Stat. § 3142, 3 How. Stat. § 3208b, providing
that it shall be lawful for banks to purchase, hold, and convey
real estate mortgaged to them in good faith, and such as they
shall purchase at sales under judgments, decrees, or mortgage
foreclosures under securities held by them, a bank can fore-
close a mortgage by advertisement. Gage v. Sanborn, 270
2. If the authenticity of a notice of sale under proceedings to
foreclose a mortgage by advertisement in the name of a bank
can be questioned at all, the fact that the foreclosure was
authorized by the directors may be shown by parol. Id.
BANKS AND BANKING-Continued.
3. The defendant bank, in response to plaintiff's request for some
good paper with defendant's indorsement, sent to plaintiff, "for
discount and returns," a note payable at the defendant bank
to the order of third parties, indorsed by them in blank, and
bearing defendant's guaranty of payment. Held:
(1) That, the transaction being in accordance with defend-
ant's usual method of rediscounting paper, the note would
be treated as paper rediscounted by the bank, although no
record was made upon the bank books, except to credit the
maker of the note with the proceeds thereof, less a charge
made by the bank.
(2) That plaintiff, having received the note in good faith and
for value, would be entitled to protection, even though the
officials of the defendant bank who negotiated the transfer
may have sought to defraud the plaintiff or the stockholders of
their own bank. First Nat'l Bank of Kalamazoo v. Stone, 367.
4. A bank the directors of which have for several years intrusted
the entire management to the cashier is liable upon the latter's
indorsement in its behalf of paper negotiated by him as the
property of the bank in the usual course of the business. Id.
368.
5. A bank stamp upon a promissory note, indicating that it was
paid upon a certain date, is admissible in evidence to show
the time of such payment, in connection with testimony that
the note was so stamped by the bank officer when paid, in
accordance with the custom of the bank, and that such stamp
was used upon no other occasions. Hanish v. Kennedy, 455
BILL OF EXCEPTIONS-See APPEAL AND ERROR (12).
A bill of particulars describing generally the character of
plaintiff's claim is sufficient, if no demand is made for a
more specific bill. So held where, in an action for moneys
bad and received, the bill set forth a claim upon
"divers
notes. accounts, contracts, and other evidences of indebted-
ness placed in the hands of defendant for collection." Tan-
ner v. Page, 155.
BILL OF SALE-See CHATTEL MORTGAGE; FRAUDULENT CONVEY-
ANCES (2).
1. The maker of a promissory note, upon its delivery to him for
a temporary purpose, cannot, by marking it " Paid" and
retaining it upon the claim that he is entitled to a credit
equivalent to the balance due thereon, destroy the character
of the note as an existing obligation or as evidence of the
indebtedness, but the same will be admissible upon explana-
tion being made of its condition. Liesemer v. Burg, 124.
2. Where, in an action on a promissory note, the defendant de-
nied having signed it, or having received any considera-
tion therefor, and further testified that, while being taught
to write by plaintiff, he signed his name to several pieces
of paper, which he left on plaintiff's desk, it was held that
BILLS AND NOTES-Continued.
it was error to refuse to charge the jury, as requested, that
if defendant signed the note without receiving any consid-
eration therefor, or without understanding it to be a prom-
issory note, or if he signed his name to a blank piece of
paper, and the body of the note was filled in without his
knowledge or consent, defendant was not liable, and to
charge merely that, if defendant signed the note, plaintiff
could recover. Trombly v. Trombly, 227.
3. An action commenced upon a promissory note on the last day
of grace is premature. Wiesinger v. First Nat'l Bank, 291.
4. One who indorses a promissory note for the accommodation
of the principal maker anl an accommodation maker can
maintain an action against them jointly upon being compelled
to pay the note; and this is so although the indorser is not the
payee named in the note, and the indorsement was made
before its negotiation. The rule as to contribution between
cosureties does not apply to such a case. Hanish v. Kennedy,
See BANKS AND BANKING (3-5).
1. Under a statute authorizing the calling of a special meeting
of a board of supervisors by giving written notice to each
member thereof, proof of service of such notice need not be
filed with the board, or spread upon the record of its pro-
ceedings, if there is no provision requiring it. The presump-
tion is that such a meeting was legally convened, and the
burden of proving the contrary rests upon him who assails its
validity. Board of Supervisors v. Wayne Circuit Judges, 166.
2. The acceptance and adoption by a board of supervisors of the
report of a committee recommending that the supervisor of a
specified township be authorized to reassess certain drain taxes
is a sufficient direction by the board that such taxes be
reassessed. Bump v. Jepson, 641.
One who buys land after having been notified by an adminis-
trator that he claims the right to recover the property on the
ground that it was conveyed by his decedent in fraud of cred-
itors is not a bona fide purchaser. Walker v. Cady, 22.
See PARTNERSHIP (3).
BOND ON APPEAL-See APPEAL AND ERROR (14); STATUTE OF
LIMITATIONS (4); SUMMARY PROCEEDINGS (4).
BONDS-See INTOXICATING LIQUORS (1,; MUNICIPAL CORPORATIONS
(19).
1. The boundaries of a town lot, when in dispute, will be de-
termined from the lines actually established upon the ground,
agreed upon by the adjacent owners, and long acquiesced in
by them, rather than from a recent survey, dependent upon a
different construction of the plat. White v. Peabody, 144.
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