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INDEX.

ABANDONMENT See CRIMINAL LAW (8, 9).

ACCEPTANCE-See BILLS AND NOTES (1).

ACCOMMODATION NOTES-See BILLS AND NOTES (5).
ACCOUNTING.

1. Complainants and defendant L. entered into a contract, in
which it was recited that L. had invented an automobile and
was desirous of securing funds for the purpose of buying
materials for its construction; that complainants would ad-
vance money up to the sum of $1,200; that L. would devote
his time and labor to perfect the machine and to secure
patents upon his inventions; and that the parties, if com-
plainants considered the automobile a success, would incor-
porate on the basis of two-thirds to complainants and one-third
to L. Complainants advanced more than the amount agreed
upon, and, not being disposed to make further advances, in-
dicated to L. that, if he could find an opportunity to dispose of
the automobile and the patents so as to get out the money they
had invested, they would be satisfied with such arrangement.
L. interested the defendant corporation in his inventions and
turned over to it the machine and the patents in considera-
tion of $10,000 of stock in defendant company. Held, that
credit was not extended to L. to the amount of complainants'
investment, and that complainants had an equitable interest
in the proceeds of the machine and patents which would only
be protected in a court of equity. Caulkins v. Lavigne, 89.
2. On such bill, a decree against defendant corporation for the
payment of an amount of money cannot be sustained, since
to so hold would be to create a new contract between the
parties. Id. 90.

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
which they were directors. Held, that, as the parties had
assented to the terms of the sale, their assignees were not
equitably entitled to compel defendant to account on the
theory of a failure of consideration; such shares and notes
being, in effect, forfeited on the ground of public policy.
Newcomb v. Thorpe, 101.

See EXECUTORS AND ADMINISTRATORS (2-4); PARTITION.

ACTION-See DEATH (2); MANDAMUS (2).

ACTIONS, LIMITATION OF-See SPECIFIC PERFORMANCE (1).
ADMISSION-See ESTATES OF DECEDENTS (8).

AFFIDAVIT - See JUSTICES OF THE PEACE (3); NEW TRIAL;
TRIAL (4).

AGREEMENTS-See MUNICIPAL CORPORATIONS (4).

AGRICULTURAL SOCIETIES.

1. An agricultural society, organized under section 5953 et seq.,
2 Comp. Laws, is not a charitable or eleemosynary institution,
and is under the same obligation to exercise due care in the
erection and maintenance of places to which it invites its
patrons as is a private corporation. Logan v. Agricultural
Society of Lenawee County, 537.

2. The duty of defendant to its patrons was not only to employ
competent inspectors to examine the premises to which it in-
vited its patrons, but also to see that such inspectors did their
duty; and where, opposed to the testimony tending to estab-
lish such inspection, were the facts that a plank broke, that the
ends were so rotten that they pulled away from the nails,
and the rottenness of the plank was apparent from under-
neath, the question of whether there was a sufficiently careful
inspection was properly submitted to the jury. Id. 538.

3. It was not error to exclude the testimony of defendant's presi-
dent to the effect that the people managing the society were
farmers; since the same degree of care is required of them as
of other classes of persons. Id.

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AMENDMENTS See JUSTICES OF THE PEACE (2); MUNICIPAL
CORPORATIONS (7, 8); PROBATE COURTS (1); STATUTES (4).

ANTENUPTIAL AGREEMENT-See EJECTMENT (2).

APPEAL AND ERROR.

1. Where the bill of exceptions does not contain a statement of
the judgment entered, defendant cannot complain of an in-
struction in regard to the recoupment of damages for breach
of the contract sued upon; since if the jury decided that
plaintiff had complied with the terms of the contract the
question of damages was immaterial. MacKinnon Boiler &
Machine Co. v. Central Michigan Land Co., 12.

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
not directing a verdict, is not sufficiently specific to require
consideration. Canerdy v. Port Huron, St. Clair & Marine
City R. Co., 211.
12. Where, on the trial, counsel offered certain testimony, the ad-
missibility of which was questioned by the court, and it was
withdrawn, counsel is estopped to predicate error upon its
rejection. Beck v. Ann Arbor R. Co., 252.

13. Error cannot be predicated on a confusion in the instructions
to the jury in regard to the defenses to an action for personal
injuries, where both defenses were based upon the same
alleged facts, and if one was found to exist the other would
of necessity follow. Burgess v. Humphrey Bookcase Co., 346.
14. An instruction that if the jury should find from the evidence
that the plaintiff complained of the defective condition and
working of said machine, and that assurances were made to
him that it would be so altered that the defect complained of
would cease to exist, that plaintiff had a right to continue to
work at such machine for a reasonable time without assum-
ing the risk of injury, was erroneous, since there was no
proof that the foreman was a vice principal and could there-
fore bind the master by a promise to increase the capacity of
the boiler which was the defect complained of—such promise,
if made, being that of a fellow-servant. Id.
15. Where, on appeal from an order dismissing a bill for the abate-
ment of a nuisance, it appeared that such order was entered
at the close of complainants' evidence on the grounds that
the court was without jurisdiction, and that the testimony
was "wholly insufficient to sustain the relief prayed for,
even though the court did have jurisdiction," the cause being
heard de novo in the appellate court, and complainants not
asking, and defendants, by not appealing, not being entitled
to ask, that the cause be remanded for further testimony, the
court will consider the questions raised by the record as pre-
sented. Detroit Realty Co. v. Barnett, 385.

16. Appellant cannot complain of the offering of certain requests
to charge after the argument had begun, where the record
neither shows the taking of an exception nor that said re-
quests were given. People v. Reycraft, 452.

17. Under Act No. 92, Pub. Acts 1901, amending section 670, 1
Comp. Laws, the determination of the amount of a bond on an
appeal from an order of the probate court, is committed
solely to the discretion of said court; this court only deter-
mining questions of law upon an application to set aside the
order so made. Stevens v. Ottawa Probate Judge, 527.

18. The action of the trial court in permitting plaintiff's counsel
to call defendant's counsel as a witness and to afterwards take
the stand and contradict such testimony, and in stating on the
objection of defendant's counsel to such ruling that the court
could not indulge any criticism on the ruling, while improper,
did not justify a reversal. Logan v. Agricultural Society of
Lenawee County, 539.

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
DENCE (7).

See CRIMINAL LAW (6, 7); Evi

ASSIGNMENTS-See LAND CONTRACTS (1); MORTGAGES.

ASSIGNMENTS OF ERROR-See APPEAL AND ERROR (11).
ASSUMPSIT-See BANKRUPTCY (2).

ASSUMPTION OF RISK-See APPEAL AND ERROR (14); MASTER
AND SERVANT (1, 4, 8, 10, 17, 18).

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).

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