6. The person serving the citation need not be specially appointed
for that purpose, under the provision of the statute requiring
the service to be made by the commissioner "or some other
competent person." Id.
7. Under sections 6 and 7, chap. 6, of the drain law of 1885 (3
How. Stat. § 1740f6, 1740f7), providing that taxes levied under
said act or under the law of 1881 shall be a perpetual lien upon
the land, and that all of the provisions of the general law for
enforcing the payment of taxes shall apply to such drain taxes.
lands reassessed under section 14, chap. 6, of the act of 1885 (3
How. Stat. § 1740g4), may be sold for non-payment of the tax.
Bump v. Jepson, 641.
8. Interest at the rate of 1 per cent. a month, authorized by the
general tax law to be charged upon delinquent taxes, cannot
be added to the amount of a delinquent drain tax, under sec-
tion 7, chap. 6, of the drain law of 1885 (3 How. Stat. § 1740ƒ7),
adopting the provisions of the general law relating to the col-
lection of taxes. Id.
See BOARD OF SUPERVISORS (2).
1. A mortgage executed by a wife under an implied threat of a
criminal prosecution against her husband is obtained by duress
and undue influence equally as if given under an express
threat of prosecution. Benedict v. Roome, 378.
2. Complainant's husband embezzled certain funds of defendants
while in their employ. His conduct was disclosed to com-
plainant by defendants' attorney, who also advised her that it
constituted a criminal offense; and on the afternoon of the
same day she was informed by one of the defendants that he
must have security or the money, or "there are the papers,"
and "I shall go on with the proceedings." Complainant there-
upon executed a mortgage to defendants upon her individual
property for the amount of her husband's defalcation. Held,
that a decree setting aside the mortgage as having been pro-
cured by duress and undue influence was authorized. Id.
See SHERIFFS.
Owners of land abutting on opposite sides of a street, the fee
of which is vested in them, have, as between themselves,
the power of disposition over the estate comprised therein;
and, therefore, where one has conveyed to the other all of
his interest in the land occupied by the street, with consent
that the same may be closed, which deed is of record, a
subsequent conveyance by such grantor of his adjacent
premises will carry no interest in the street, and his grantee
cannot restrain the closing of the same. Comstock v. Sharp,
EJECTMENT-See INCOMPETENT PERSONS.
ELECTION OF REMEDIES-See FRAUD (4).
Under 3 How. Stat. § 234a, a candidate desiring a recount of
the votes cast at an election must apply therefor on or before
the last day of the regular session of the board of canvassers,
and by merely filing a protest on the last day, and thereby
securing an adjournment, he cannot extend the time within
which to file his petition. Drennan v. Common Council of
Wyandotte, 117.
See MUNICIPAL CORPORATIONS (9); PUBLIC IMPROVEMENTS.
1. An agent of a foreign corporation cannot defend a charge of
embezzlement preferred under 2 How. Stat. § 9151, upon the
ground that the corporation was prohibited from doing busi-
ness within this State by reason of a non-compliance with the
statutory conditions. People v. Hawkins, 479.
2. 2 How. Stat. § 9421, provides that, in a prosecution for embez-
zlement, proof of any embezzlement committed within six
months next after the time stated in the indictment shall be
sufficient to maintain the charge. An information charged
embezzlement between two dates not more than six months
apart. Held, that the defect, if any, in failing to allege a day
certain, would be disregarded, under 2 How. Stat. §§ 9534, 9535,
where the objection was not raised until after the jury had
been sworn. Id.
3. In a prosecution for embezzlement, evidence of previous acts
of like character is admissible to prove intent. Id. 480.
4. The fact that moneys wrongfully appropriated by a bookkeeper
and assistant cashier first went into the cash drawer of his
employer does not make the offense larceny, rather than em-
bezzlement. Id.
EMBLEMENTS-See ESTATES OF DECEDENTS (8).
1. In proceedings to condemn land for the opening of a street,
opinion evidence as to the necessity for the proposed improve-
ment is inadmissible. City of Grand Rapids v. Bennett, 528.
2. Where a street is opened across a railroad right of way, an
exclusive use is not acquired by the public, and therefore the
value of the land is not a proper measure of damages. Id.
3. In the absence of a statutory requirement, the jury in condem-
nation proceedings need not itemize the damages awarded.
Id.
4. The general statute authorizing the taking of private property
for public use in cities and villages (3 How. Stat. chap. 83)
provides that the petition to the court thereunder shall recite
the adoption by the common council of the prescribed resolu-
tion of necessity; that notice shall be given to the owners of
lands sought to be taken; that, no sufficient cause to the con-
trary being shown, the court may impanel a jury to determine
the questions of necessity and compensation; and that the
judgment of the court confirming the verdict of the jury shall
be final and conclusive as to all persons interested therein.
Held, that the statute contemplates a judicial determination
EMINENT DOMAIN-Continued.
of the questions raised by the averments of the petition; that
a judgment of confirmation necessarily includes a determina-
tion by the court that the proceedings were properly instituted;
that such judgment is not open to collateral attack; and that,
therefore, judgment having been properly entered, a taxpayer
cannot maintain a bill to restrain the collection of an assess-
ment for benefits derived from the improvement on the ground
that the resolution of the council was not legally adopted.
Scotten v. City of Detroit, 564.
5. In proceedings to open a street, it is not necessary to condemn
a public alley crossed thereby, since the condemnation of the
land abutting on the alley leaves no one who is in position to
complain of its use for a public street. Id.
See DRAINS (3-6); RAILROAD COMPANIES (5-10).
An abutting owner, assessed for the paving of a street, cannot
maintain a bill to enjoin the payment of bonds issued by the
city to defray its proportion of the expense of the improve-
ment, pursuant to a vote of the electors, on the ground that the
city in fact paid a larger percentage of the cost than was
specified to be paid by it in the resolution of submission.
Boehme v. City of Monroe, 402.
See CONTRACTS (9); MUNICIPAL CORPORATIONS (12, 19).
EQUITY JURISDICTION—See ESTATES OF DECEDENTS (6); JOINT
STOCK ASSOCIATIONS; MISTAKE; NUISANCE; SPECIFIC PER-
FORMANCE.
1. Under a bill filed for the sole purpose of securing the cancel-
lation of a mortgage alleged to have been paid, a cross-bill will
not lie to enforce the specific performance of a parol agreement
by complainant to convey to defendant an undivided interest
in the premises, or to declare a prior conveyance of the land
from defendant to complainant to have been intended as se-
curity only; nor will such matters constitute a defense to the
suit. Defendant's remedy in such case is by an independent
suit in chancery. McCarn v. Wilcox, 64.
2. Where a bill to set aside a tax deed as a cloud upon title fails
to specify the grounds upon which the sale is claimed to be
invalid, or to set forth any facts showing the proceedings to
be defective, a special demurrer is properly interposed. Bump
v. Jepson, 642.
See ESTATES OF DECEDENTS (1).
EQUITY PRACTICE-See APPEAL AND ERROR (13); DIVORCE (3);
INTERPLEADER; PARTIES.
ESCROW-See SPECIFIC PERFORMANCE.
ESTATES IN LAND-See DOWER; EASEMENTS; TENANTS IN COM-
MON; WILLS (5).
1. Where a bill to set aside a conveyance as in fraud of the
creditors of a deceased person sets forth the probate proceed-
ings, the appointment of complainant as administrator, the
allowance of claims against the estate, and a deficiency of
assets, it sufficiently appears that the bill is filed by the com-
plainant in his capacity of administrator, under 2 How. Sat.
§ 5884, although there is no specific allegation to that effect.
Walker v. Cady, 21.
2. In a suit by an administrator to set aside a conveyance
alleged to have been made by his decedent in fraud of cred-
itors, testimony of the administrator and a son of the deceased
that they know of no property belonging to the estate except
the land in controversy, and another parcel claimed to have
been conveyed under like circumstances, establishes a prima
facie case of deficiency of assets. Id. 22.
3. The fact that a person died in another State, where he had
lived for about two years previous to his death, creates no
presumption that he left property there, so as to rebut an
otherwise sufficient showing of a deficiency of assets in a suit
by his administrator to set aside a conveyance by the decedent
as in fraud of creditors. Id.
4. The granting of an order extending the time within which to
move for a new trial in a case wherein judgment has been
rendered against the estate of a deceased person does not sus-
pend the right of the administrator to file a bill under 2 How.
Stat. § 5884, to set aside a conveyance made by the decedent
on the ground that it was void as to the claim of the judg-
ment creditor. Id.
5. 2 How. Stat. § 5990 et seq., providing that, "when any person
shall have deceased having title to any lands in this State,"
specified proceedings may be had to determine "who are or
were the legal heirs of said deceased person," is not limited to
cases where the ancestor died after the passage of the act.
Miller v. Davis, 300.
6. An administrator cannot maintain a bill in equity under 2
How. Stat. § 5884, to set aside a deed of his intestate as in
fraud of creditors, for the sole purpose of reaching the pro-
ceeds of crops growing upon the land at the time of the con-
veyance. The remedy in such case is in an action at law.
Bresnahan v. Nugent, 459.
7. Where a promise is made to compensate for services by will,
and the promisor dies without so providing, the value of the
services may be recovered as a claim against the estate. In
re Williams' Estate, 490.
8. As between the heirs and the administrator, the latter is en-
titled to crops growing on lands of the deceased.
McGee v.
Walker, 521.
9. The right of action given to an administrator by 2 How. Stat.
$ 8313, 8314, for negligently causing the death of his intestate,
constitutes assets of the estate of the deceased, within the
meaning of section 5848, authorizing administration in case of
the death of a non-resident “leaving estate to be administered
in this State." Findlay v. Chicago, etc., R. Co., 700.
See LIFE INSURANCE; WILLS; WITNESSES (13).
Where the declaration in an action for maliciously suing out
a writ of attachment alleges that "the defendant caused
the affidavit to be filed in the office of the clerk of the court,
and caused a writ of attachment to be issued" thereon, plain-
tiff cannot be heard to say that the affidavit was not made
and filed prior to the issuance of the writ. Wiesinger v. First
Nat'l Bank, 292.
See CONTRACTS (5); FIRE INSURANCE (2, 13); MUNICIPAL CORPO-
RATIONS (12, 23); RES JUDICATA.
1. In trover for hay which had not been weighed at the time of
conversion, but which had been cut from a given acreage, a
witness who has shown himself competent to testify may be
asked to state the average crop per acre for that season upon
the premises in question. Isaacs v. McLean, 79.
2. In an action upon a fire-insurance policy covering certain
drug-store fixtures, evidence of the cost and condition of the
property several years previous to the fire is admissible if sup-
plemented by proof that it had not since deteriorated in value.
Johnston v. Farmers' Fire Ins. Co., 96.
3. Where a witness testifies to certain admissions made by a
party to the action when sworn upon a prior trial, the latter is
entitled, upon cross-examination, to elicit all of his testimony
then given which may tend to explain the statements which
he is claimed to have made. Reiser v. Portere, 102.
4. Statements of a party litigant adverse to his own claim are
always admissible, and it is immaterial that the examination
with reference thereto is not conducted with the particularity
required in cases of attempted impeachment. Id.
5. Where it is sought to charge a father for care bestowed upon
his infant child, evidence of the character and standing of
the father and the expectancy of the child is inadmissible
upon the question of the value of the services rendered.
Liesemer v. Burg, 124.
6. Parol evidence of the contents of a written instrument is in-
admissible upon testimony merely tracing the writing into
the possession of a third party (e. g., an insurance adjuster),
and failing to disclose any further inquiry. Tanner v. Page,
7. Where a written agreement provides for the payment of a
"reasonable amount" for making certain collections, evi-
dence that one of the parties, at the time of the execution
of the writing, suggested that a specified percentage be in-
serted in lieu of such provision, is inadmissible upon the
question of reasonable compensation. Id.
8. Where a witness testifies that he has not seen a certain letter
since its receipt by him some 12 years previous, that his
papers were afterwards destroyed by fire, except a few
that he kept in a specified place, that he has searched for
papers among those last mentioned, and that the one in
question was not there, a sufficient foundation is laid for
the introduction of parol evidence of the contents of the
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