INDEX. ABANDONMENT See CRIMINAL LAW (8, 9). ACCEPTANCE-See BILLS AND NOTES (1). ACCOMMODATION NOTES-See BILLS AND NOTES (5). 1. Complainants and defendant L. entered into a contract, in 3. On a bill for a partnership accounting, it appeared that defendant induced N., M., and H. to form a limited partnership for the development of a mining claim; that, finding said claim unavailable for lack of improvements, defendant secured a transfer of another claim to himself which he sold to a corporation, organized by the members of the development company, receiving therefor a certain amount of stock in the corporation together with promissory notes, of which he assigned a one-third interest to N., M. and H.; and that said notes and stock were later adjudged void as a profit (703) ACCOUNTING-Continued. secretly made from a transaction with the corporation in See EXECUTORS AND ADMINISTRATORS (2-4); PARTITION. ACTION-See DEATH (2); MANDAMUS (2). ACTIONS, LIMITATION OF-See SPECIFIC PERFORMANCE (1). AFFIDAVIT - See JUSTICES OF THE PEACE (3); NEW TRIAL; AGREEMENTS-See MUNICIPAL CORPORATIONS (4). AGRICULTURAL SOCIETIES. 1. An agricultural society, organized under section 5953 et seq., 2. The duty of defendant to its patrons was not only to employ 3. It was not error to exclude the testimony of defendant's presi- - AMENDMENTS See JUSTICES OF THE PEACE (2); MUNICIPAL ANTENUPTIAL AGREEMENT-See EJECTMENT (2). APPEAL AND ERROR. 1. Where the bill of exceptions does not contain a statement of APPEAL AND ERROR-Continued. 2. One alleging error upon an instruction to the jury must show that he was prejudiced thereby. Granger v. Darling, 31. 3. The refusal of the court to grant a new trial on the ground that the verdict and judgment rendered thereon were against the weight of the evidence cannot be considered on appeal, where no exception was taken to the denial of the motion. Comstock v. Taggart, 47. 4. In an action on a promissory note given as a part of the purchase price of a horse, testimony of a verbal warranty in regard to the horse was not prejudicial to plaintiff's rights, where the only substantial difference between the verbal and the written warranty was as to the time and place of return of the horse in case he did not fulfill the terms of the warranty; the essential feature of the warranty being whether or not the horse was "a sure foal getter," which question was properly submitted to the jury. Id. 5. In determining whether a verdict should have been directed for defendant, it is the duty of the court to accept as truthful the testimony offered on behalf of plaintiff, and to give to such testimony, when subject to different inferences, that most favorable to plaintiff. Strong v. Grand Trunk Western R. Co., 66. 6. Act No. 340, Pub. Acts 1907, entitled "An act to regulate the practice on appeal in chancery cases," does not in terms, nor by necessary implication, repeal Act No. 58, Pub. Acts 1883, permitting an appeal from an order overruling a general demurrer; said act of 1907 indicating a purpose to regulate the practice only, and not to restrict or enlarge the right of appeal. Moody v. Macomber, 76. 7. On a bill for equitable relief, where the determination of the controversy depends entirely upon questions of fact, the finding of the trial court, who heard and saw the witnesses, will be sustained. Peets v. Peets, 87. 8. The error, if any, in denying motions to strike a cause from the calendar for reasons affecting the validity and regularity of the notice of trial and the note of issue, in the absence of a showing of prejudice to defendant's ability to make a full defense upon the merits, does not warrant a reversal. Killackey v. Killackey, 127. 9. Where, in a case tried before the court without a jury, no objection was made, nor exception taken, to the admission of testimony, no request for findings of fact and law, nor exception taken to the rendition of judgment, under Circuit Court Rule 26, there is nothing for an appellate court to review. Nichol v. Ward, 136. 10. The admission of opinion evidence by one incompetent to so testify was cured by the giving of a requested instruction directing the jury to disregard it; and it will not be inferred that the jury were affected by the admission of similar testimony which was not called to the attention of the court. Potvin v. West Bay City Shipbuilding Co., 202. 156 MICH.-45. APPEAL AND ERROR-Continued. 11. An assignment which, in effect, is that the court erred in 13. Error cannot be predicated on a confusion in the instructions 16. Appellant cannot complain of the offering of certain requests 17. Under Act No. 92, Pub. Acts 1901, amending section 670, 1 18. The action of the trial court in permitting plaintiff's counsel APPEAL AND ERROR-Continued. 19. Supreme Court Rule 38, authorizing the dismissal of an appeal for failure to print and serve the record and briefs, is not applicable to appeals under the water-craft law (section 10823 -10826, 3 Comp. Laws), since, under sections 10825, 10826, either party to such appeal may, after the appeal, take additional testimony, and the hearing in this court is de novo upon the record returned from the lower court and the additional testimony. Detroit Lumber Co. v. Auxiliary Yacht "Petrel,” 565. 20. The statute (Act No. 340, Pub. Acts 1907, § 2) providing that appeals in chancery shall be taken within 40 days after filing of the decree, is applicable to an order overruling a demurrer; and an appeal therefrom must be taken within such time from the filing of the order. Bliss v. Tyler, 640. See AGRICULTURAL SOCIETIES (3); CERTIORARI (1); ESTATES OF DECEDENTS (4); EVIDENCE (3, 5); LAND CONTRACTS (1); TRIAL (5). ARGUMENT OF COUNSEL-See TRIAL (2). ASSAULT AND BATTERY See CRIMINAL LAW (6, 7); Evi ASSIGNMENTS-See LAND CONTRACTS (1); MORTGAGES. ASSIGNMENTS OF ERROR-See APPEAL AND ERROR (11). ASSUMPTION OF RISK-See APPEAL AND ERROR (14); MASTER ATTORNEY AND CLIENT. In an action upon promissory notes, plaintiff's attorney having attached property of defendant, upon an application to dissolve the same, it was stipulated by the respective attorneys that said attachment should be dissolved and held for naught; that defendant might set off and deduct from plaintiff's claim all damages and costs to which he was entitled by reason of said attachment and levy under it, the same to be assessed upon the trial; and that defendant might amend his pleadings so as to make the said defense. Held, that the refusal of the trial court to allow proof of such damages was error; since, under the general power of attorneys to bind the client by all acts necessary or incidental to the prosecution or management of a suit which affect the remedy only, and not the cause of action, such stipulation, made with full knowledge of all the facts, permitted an amendment to the pleadings allowing a defense to be set up which would not otherwise be available, is not opposed to public policy, and avoided a multiplicity of suits. Brown v. Spiegel, 138. See ESTATES OF Decedents (7); EVIDENCE (4); JUDGMENTS (2). ATTORNEY GENERAL-See STATE VETERINARY BOARD (1). |