DOWER.

See PARTITION, 1-4.

DRAFTS.

See EVIDENCE, 22-24.

EJECTMENT.

1. A judgment in an action of ejectment between a single plaintiff
and a single defendant, where the defendant had become de-
faulted and the cause has been tried before the court without a
jury, is not invalidated for the want of a finding specifying the
estate or right established on the trial by the plaintiff, as re-
quired of a jury in certain cases under the statute (Comp. L., ទ
6231, Sub. 7); such a case is not within that provision of the
statute.-Morse v. Hewett, 481.

2. Whether, in a case to which the statute applied, the want of
such a special finding would expose the judgment to any collat-
eral objection by the defendant :-Quære ?-Ibid.

3. A judgment entry in an ejectinent suit, that the plaintiff "do re-
cover against the said defendant the possession of the premises
aforesaid according to the description thereof contained in the
said declaration," etc., though formally inaccurate in omitting to
describe the premises except by reference to the declaration, is
not so defective as to render the judgment invalid when attacked
collaterally; this imperfection is a mere technical irregularity,
and the premises being specifically described in the declaration
and title in fee claimed, the recovery is made certain by the ref-
erence to the declaration; and this miscarriage in the entry of
the judgment is obviated by the statute of amendments (Comp.
L., § 6051).-Ibid.

4. The point that such a judgment entry does not purport to decide
that the plaintiff is entitled to the possession, is not well taken.
-Ibid.

5.

A finding in an ejectment suit, simply that the defendant had
lived on the premises twenty-seven years, and at all times had
sufficient property thereon out of which the taxes might have
been made, in the absence of any finding of a hostile possession,
or of any pretense of title on the part of the defendant, is insuf-
ficient to overturn a judgment in the case for the plaintiff — Ibid.
See ADVERSE POSSESSION, 1-4; GUARDIANS' SALES, 1; LACHES, 2.

EMINENT DOMAIN.

1. In proceedings to condemn lands for the use of a railroad the
oath of the jurors is not to be construed by itself, but as a part
of the proceedings in which it was taken; and so construed, if

every thing the statute requires is embraced, in substance if not
in form, it is sufficient.-East Sag. & St. Clair R. R. Co. v. Ben-
ham, 459.

2. Where the interest of two persons in the lands sought to be
taken is treated as joint by the petition, and they appear jointly,
and jointly demand a jury, it is not improper for the jury to
award an undivided sum to the two; their own action precludes
them from insisting that their interests should have been sepa-
rately regarded.-Ibid.

3. A finding by the jury that they "did

4.

5.

1.

2.

ascertain and determine
that it is necessary for said company to take said real estate for
public use, to wit: for the purpose of said company's incorpora-
tion as and for right of way," is a sufficient finding that the
land was required for the public use.-Ibid.

The petition in this case is held sufficient in form and substance.
-Ibid.

The want of publication of notice to owners and parties inter-
ested cannot be insisted upon on appeal where all concerned have
voluntarily appeared in the cause.-Ibid.

EQUITY PLEADING AND PRACTICE.

The case set out in the bill being based on a claim for relief on
the ground that the complainant has a complete equity, and that
the defendants have set up claims that are subordinate to it and
in fraud of it, is one of original equity cognizance, and not one
in any way derived from the statute for quieting titles; and the
fact that the complainant is out of possession is not important.—
Waterman v. Seeley, 77.

A foreclosure purchaser, under a mortgage given by one who has
no title to the lands described, is not entitled to relief against a

3.

third person, on the ground that the latter has fraudulently ob-
tained the title to the land of the actual owner, notwithstanding
such owner may have intended, without consideration, to put the
title where it would have enured to the benefit of such pur-
chaser, but was deceived into giving it to such third person.-
lbid.

It is not competent in a foreclosure suit, whatever the pleadings,
to proceed to litigate and settle the right of a party who sets up
a legal title which, if valid, is adverse and paramount to the title
of both mortgagor and mortgagee.-CHRISTIANCY, CH. J., reserv-
ing his opinion.—Summers v. Bromley, 125.

4. But if that were possible in any case, a bill which simply brings
in the adverse claimants under the usual allegation in foreclosure
bills against subsequent purchasers and incumbrancers is not prop-
erly framed to raise such an issue or to support a decree upon
the title of such adverse claimants.-Ibid.

5.

6.

Both sides having been somewhat at fault in proceeding without
objection to litigate this question, which was not properly em-
braced in the pleadings, no costs are awarded to either party.—
Ibid.

The state is not authorized, through its law officer, to bring a
suit in equity, adverse to all private parties and interests, to en-
force a gift by will to charitable uses, unless the gift be defi-
nitely to a charity such as equity recognizes, and definitely to a
public charity.-Attorney General c. Soule, 153.

7. The state, no less than other prosecutors, must appear on the face
of the record to be entitled to prosecute, or the proceeding must
fail in consequence of the irrelation of the plaintiff to the subject
of the action.-Ibid.

8.

9.

The will in question in this case directs the setting apart of ten
thousand dollars to be expended according to the directions of
the executors, "for the establishment of a school at Montrose for
the education of children;" and this is held to be so uncertain
and indefinite as not to bind the trustees to an application of
the fund to public charity, or even, perhaps, to charity at all,
as recognized in courts of equity, but to clothe them with a dis-
cretion broad enough to permit of their applying the fund to a
private school, and perhaps even to one not within the class of
charities; and therefore no case is presented for state interference.
-Ibid.

The taxable costs of both courts in this case are awarded to the
defendants, against the state.-Ibid.

10. A decree in a partition suit which fixes the respective rights of
the parties, although it contains an order of reference to take an
accounting as to rents and profits, and to ascertain whether an
actual partition is practicable, or whether a sale and distribution
of proceeds is necessary, is such a final order or decree as is ap-
pealable under our statute.-Damouth v. Klock, 163.

28 MICH.-72.

11. Whether a complainant who holds under a subsequent convey-
ance made after majority, in filing a bill to quiet bis title against
one who holds under a minor's deed, should be required as a
condition of such relief to refund the consideration paid by the
purchaser from the minor for such deed :-Quære?-Prout v. Wi-
ley, 164.

12. But in this case the complainant making no objection to the al-
lowance to defendant of the amount of such consideration, and
by implication, at least, admitting the justice of such an allow
ance, it is made a condition to the granting of the relief sought.
-Ibid.

13. An order sustaining a demurrer to the bill of complaint in a
chancery suit, granted by virtue of a stipulation entered into for
the purpose of bringing the cause to this court on appeal, with-
out any further decree dismissing the bill, or otherwise disposing
of the cause finally, is not such a final order or decree as is ap-
pealable under our statute.-Perkins v. Keating, 269.

14. An order discharging a receiver in a chancery cause and provid-
ing for the rendering of an account by him on notice of the
order, for passing his account when rendered, for canceling his
bond, for the payment into court of any surplus in his bands,
for the restoration of the property taken into his possession as
receiver, and when he shall have complied with these directions,
for the dismissal of the bill, is not such a final order as is ap-
pealable under our statute.-Colgate v. Mich. L. S R. R. Co, 288.
15. A complainant in a chancery cause cannot complain, on appeal,
of the action of the court below in opening a decree by default
in his favor, unless it was against his rights, whether otherwise
proper or not.-Brewer v. Dodge, 359.

16. A decree by default may always be opened within a reasonable
time, on showing an adequate excuse; and this must generally be
within the sound discretion of the court.-Ibid.

17. Where it appears from complainant's own showing, in a suit to
enforce specific performance of a land contract, that he has con-
veyed the premises to a third person, he thereby puts himself
out of court, and no further proceedings can be had until the
rights of his assignee are brought before the court; such a con-
veyance renders the suit as defective for want of a complainant
as if it had abated by his death.-Ibid.

18. A court of equity must have the real parties before it, and will
not permit a party who has voluntarily divested himself of any
claim on his own behalf, to continue litigating —Ibid.

19. Whether the decree would have been right or wrong if the com-
plainant had retained his interest, it was unquestionably right to
dismiss the bill when he had shown that he had parted with all
his interest.—Ibid.

20. As a general rule the report of a master, or a commissioner act-
ing as master, is received as true when no exception is taken;

and parties who are dissatisfied with such a report should except
to it, or take some other action appropriate to the objection.-
Butterfield v. Beardsley, 412.

21. The bill in this case is construed to be one for redemption from
certain mortgage foreclosures.-Harwood v. Underwood, 427.

23. A complainant can claim nothing upon the proofs, beyond what
his bill of complaint warrants —Ibid.

23. One who shows no subsisting legal or equitable right in the prop-
erty, nor any lien or charge upon it, cannot maintain a bill to
redeem a mortgage —Ibid.

24. The mere levy of an execution upon lands to which the judgment
debtor never had any title, and in which he never held any lev.
iable interest, does not constitute any lien or charge upon the
lands, or invest the execution creditor with any right or title on
which to found a suit for the redemption of a mortgage upon
the same.-Ibid.

25. Transactions between the parties with reference to a sale by the
defendant to the complainant, of a mortgage interest, cannot
have any force as the foundation for a bill to redeem from the
mortgage. - Ibid.

26. This case has not been so constituted, or so proceeded in, as to
warrant the consideration of facts tending to prove a verbal
agreement by defendant to transfer the mortgage in question to
the complainant, as facts belonging to a suit to compel specific
performance of such agreement.—Ibid.

27. An order dissolving an injunction is not appealable.-Spencer v.
Stearns, 463.

28. The statute (Comp. L., § 4246), authorizing the recovery of the
penalty of $100 upon a bill filed to procure a discharge of a
mortgage, in case of refusal, after a proper tender and request,
to discharge the same, applies to all mortgages, whether large or
small; and where the amount unpaid and tendered was less than
$100 the jurisdiction is not affected by the statute (Comp. L., §
4059) requiring the dismissal of all equity causes. "where the
matter in dispute shall not exceed one hundred dollars."— Collar
v. Harrison, 518.

29. Whether where the mortgage was originally for over two hun-
dred dollars the bill would not lie without the statute:-Quære?
-Ibid.

30. The question of double costs under this statute will more prop-
erly arise on the final hearing in the circuit than on an appeal
from a decree on demurrer.-Ibid.

See ASSOCIATIONS, 5–10; Divorce, 1-3; EviDENCE, 36; LACHкS,
2; MARRIED WOMEN, 6; PRACTICE IN SUPREME COURT, 8.

ERRORS THAT DO NOT PREJUDICE.

See ADVERSE POSSESSION, 4; DAMAGES, 1; Evidence, 9, 11, 82;
PRACTICE IN SUPREME COURT, 6, 20; Replevin, 11; REQUESTS
TO CHARGE, 3; SURETIES, 1.