person, which had been foreclosed, and a sheriff's deed executed,
in the absence of any showing that such prior mortgagor ever
owned the land, or had any connection with the title, is not
sufficient; nor did this make out a prima facie case on the point,
so as to shift the burden of proof upon defendant to show that
it did not affect the title.-Bristol v. Braidwood, 191.
The representations made as to the mortgage at the time of the
trade, so far as they related to its value, are held to be mere
expressions of opinion or matter of commendation by the vendor,
to which the principle of caveat emptor applies.—Ibid.
5. It seems that if the defendant, for the purpose of obtaining the
plaintiff's property for the mortgage, asserted to him, as a fact
of which he professed to have knowledge, that there was no
prior mortgage upon the land, when he knew or had good rea-
son to believe the contrary, or no good reason to believe his as-
sertion to be true, he would be liable as for a fraudulent repre-
sentation, and the plaintiff might have rescinded the contract and
reclaimed his property; and this, without reference to the per-
sonal responsibility of the mortgagor, or the value of the land.—
Ibid.
But a representation in reference to a prior mortgage, “that
there was none so far as he knew," is not a distinct representa-
tion of the fact one way or the other; and the whole import of
it is, that he did not know whether there was a prior mortgage
or not, and this was enough fairly to put the plaintiff on inquiry
to ascertain the fact for himself.-Ibid.
Whether or not, in case of such a representation, the defendant
could be held liable, under clear and distinct proof that he in
fact did know there was a prior mortgage, he certainly can-
not upon proof simply that some one had told defendant he had
heard there was a prior mortgage.-Ibid.
See COUNTERFEIT MONEY, 1-3; DECLARATION, 2; EQUITY PLEAD-
ING AND PRACTICE, 1, 2; EVIDENCE, 1, 17.
The right to hold a garnishee defendant liable depends upon the
state of the claim, as one garnishable or not, at the time of the
service of the writ of garnishment.-Martz v. Detroit Fire & Ma-
rine Ins. Co., 201.
Under a policy of insurance giving the insurer the right to elect
whether to replace the articles lost or damaged, or to take the
goods at their appraised value, or to rebuild or repair the build-
ing, etc., the insurance company, after loss and while this right
of election continued undetermined, is not liable as garnishee of
the insured; their liability to pay money to the insured cannot
be said to have become absolute and independent of any contin-
gency, as required by the statute (Comp. L., § 6503, Sub. 3), so
long as this right of election remained open.—Ibid.
See COUNTERFEIT MONEY, 1-3; EVIDENCE, 25, 29.
Indorsements made in consideration of kindness, by the direction
and in the presence of a mortgagee, of part payments upon a
mortgage against his grand-daughter and her husband, with whom
he was living at the time, and which were in accord with his
deliberate and expressed intention to make a gift or donation of
his property to her, are sustained as an extinguishment or for-
giving of the mortgage debt to that extent.-Green v. Lang-
don, 221.
The objection that as this was a gift inter vivos, delivery and
acceptance were essential to its validity, is not sustained; though
such is the rule where tangible personal property, admitting of
actual delivery, is the subject of the gift, and possibly where
the whole mortgage debt is donated, a delivery of the note and
mortgage, or one of them, would be essential, yet where the gift
is only of a portion of the sum due, and is made to the debtors
themselves, it does not admit of a technical delivery, and the
intention of the donor ought not on that ground to be defeated.
-Ibid.
3. But in this case the donor evidently contemplated the transaction
as a disposition in view of his own death, and it must therefore
be considered as somewhat in the nature of a testamentary dis-
position; and in this view the donation was one for which the
donor recognized in the kindness of the donees in caring for him
something in the nature of a consideration, one at least satisfac-
tory to himself.-Ibid.
The purpose and intention of making the gift having been fully
executed, and by one of the donees actually accepted at the time,
the acceptance by the other, of the extinguishment of part of a
debt against himself, may well be presumed; and the giving of
a receipt or a release without consideration, under our statute
(Comp. L., § 5947), making the seal no more than prima facie
evidence of a consideration, would no more prevent the donor
from retracting the gift than the indorsement of the amount as
a payment.-Ibid.
To charity: See EQUITY PLEADING AND Practice, 6–8.
See TRANSFER OF CAUSES, 3-8.
See PROMISSORY NOTES, 1-4.
The absence of a sale bond in the probate proceedings for a guardi-
an's sale of lands, although no such bond appears to have been
ordered by the probate court, is a fatal defect, and one which is
open to the wards in their suit for the lands against even a bona
fide purchaser; notwithstanding the peculiar wording of the stat
ute (Comp. L., § 4622, Sub. 2), "in case any bond was required,"
etc., it is held, construing the whole chapter together, that a sale
bond is in all cases essential, and that no discretion is lodged
with the probate judge in this regard, nor is any express or for-
mal order required.-Stewart v. Bailey, 251.
See CIRCUIT COURT COMMISSIONERS, 1, 2; PRACTICE IN SUPREME
COURT, 15, 16.
See TRANSFER OF CAUSES, 7.
1. In the use of a public highway one has a right to expect from
others ordinary prudence, and to rely upon that in determining
his own means of using the road; he may travel upon any por-
tion of it except when he is about to meet and to pass another
vehicle, when he must seasonably turn to the right of the mid-
dle of the traveled part of the road.-Daniels v. Clegg, 32.
2. The "traveled part of the road" referred to in the statute (Comp.
L., 2002) means that part which is wrought for traveling, and
is not confined simply to the most traveled wheel track.-Ibid.
3. This statute, being adopted from the statute of Massachusetts, is
construed in accordance with the construction put upon it by
the courts of that state prior to its adoption here, notwithstand-
ing the courts of that state have since construed it differently.—
Ibid.
4. A city in improving its streets may take the natural material
found within their limits suitable for the purpose, and distribute
it in making the improvement as the authorities deem best; and
this, even though the rights of the adjacent land owner be equal
to those of a proprietor bounded on an ordinary highway in the
country.-Bissell v. Collins, 277.
5. Whether the owner of premises fronting upon a street in the
city of Grand Rapids has the same rights in the street as a pro-
prietor bounded on an ordinary highway in the country:-Quære?
-Ibid.
6. In proceedings to lay out a highway the return of the highway
commissioners, that they proceeded to lay out the road in ques-
tion, "after due notice given according to law," is not sufficient
proof of service of the statutory notice; in such proceedings ju-
risdictional facts must be distinctly shown.-Dupont v. Highway
Commissioners of Hamtramck, 362.
7. Whether or not such a defect in the proceedings could be cured
by an affidavit subsequently made, of the facts, showing that
notice was duly given by one of the commissioners, and' that at
the time of acting they had proof of that fact before them :-
Quære?-Ibid.
But an affidavit of the fact of serving the notice, which does
not show that any proof of the service was before them at the
time of acting, and from which it appears, inferentially at least,
that no proof thereof was made at the time other than the mere
oral statement of the commissioner who made the service, will
not cure the defect in the proceedings.—lbid.
Jurisdiction to take from a private owner the possession of his lands can never be allowed to rest upon any such dangerous basis as a mere oral statement of the fact of service; and the fact that one of the commissioners had personal knowledge that the notice was given does not help the matter, as his oral statement could not be taken as proof by the others, nor would it be evidence to other persons interested, who are entitled to have the facts placed upon record.-Ibid.
10. The statutory notice in these proceedings is in the nature of process, and it is indispensable that there be legal evidence that it has been given.-Ibid.
See DEEDS, 9; Negligence, 1-5; TRESPASS, 1.
Under our statute (Comp. L., § 4804), an action for the personal sufferings of a married woman from an injury received in a railroad accident should be brought by the wife alone, and not by the husband and wife jointly; the statute supersedes the common law in this respect.—Mich. Central R. R. Co. v. Coleman, 440. Whether where husband and wife have sued jointly for such a cause of action the error may be remedied by amendment :Quare?-Ibid.
See CHARGE TO THE JURY, 4.
See EVIDENCE, 16, 17, 25; MASONIC SOCIETIES, 1-5; NAMES, 1;
RAILROADS, 10.
IMMATERIAL AVERMENTS.
See EQUITY PLEADING AND PRACTICE, 25.
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