the defendants had a right to waive all formal proofs, as they
seem to have done in this case, if they saw fit so to do.-Peter-
son v. Hubbard, 197.
Where on a chancery appeal involving only questions of fact,
the evidence is conflicting and apparently nearly equally balanced,
and the testimony has been taken in open court, so that the
court below had an opportunity to weigh the testimony in the
light of the appearance, manner and deportment of the witnesses
in giving the testimony, the decree below will not be reversed.
-Green v. Langdon, 221.
9. Where, in an action for the value of gravel taken from the street
in front of the plaintiff's premises, the referee to whom the cause
was referred has found in his report that the defendant entered
into a contract with the city to make an improvement in the
street which had been ordered by the city, and had used the
gravel in making such improvement, the objection that defendant
has not shown his contract was duly, and with ail legal requisites,
ordered and entered into on the part of the city, is not open for
consideration on error.-Bissell v. Collins, 277.
10. The court being equally divided, the judgment of the court be-
low is affirmed.-Marquette & Ontonagon R. R. Co. v. Taft, 289.
11. The finding of facts, in a case tried by the court without a jury,
is to be treated as a special verdict; and where no exceptions
have been taken to the evidence introduced, the finding is con-
clusive, if there is any evidence tending to sustain it.-Lovell v.
Willard, 346.
12. The evidence considered, and held not to sustain the finding that
the defendants gave the note sued upon as consideration for the
sale to them by the plaintiff of a note of like amount he held
against one Haney; but its tendency was rather to show that by
the arrangement between the parties, defendants were not to pay
their note unless Haney would consent to pay them, or allow
them the amount upon a debt they owed him, without suit or
trouble, nor unless the Haney note should turn out to be as good
to them as money.-Ibid.
13. The question whether a case is a proper one for the writ of cer-
tiorari is one that relates to the merits, and will not be enter-
tained on a motion to dismiss the writ in advance of the hear-
ing-Rowe v. Rowe, 353.
14. Where a writ of certiorari has been granted by a competent offi.
cer, upon a sufficient application, the supreme court will not
review his discretion in granting it, on a motion to dismiss.—
Ibid.
15. Whether an application pending and undetermined, to a circuit
judge of the county where the proceedings were taken, for a
writ of certiorari to review proceedings before a circuit court
commissioner on a writ of habeas corpus, would render a like ap-
plication to a justice of the supreme court nugatory:-Quare?—
Ibid.
16. But where upon the showing it is clear that the commissioner
had not in fact rendered his decision when the first application
was made, the supreme court will not dismiss its writ.-Ibid.
17. In a controversy between parents for the custody of their chil-
dren, the children are interested as deeply as the parents, and the
court will not take any steps within its discretion which might
prejudice them, even in case of misconduct on the part of the
contending parents.-Ibid.
18. In an action of trover for timber cut on two different sections,
where the title of the respective sections is involved in such a
way as to make a case of two distinct heads, although the jury,
in answer to special questions, have found the value of the logs
cut on the respective sections, the supreme court having on writ
of error reversed the judgment for error on one branch of the
case, and holding there was no error on the other branch, never-
theless decline to enter final judgment as to those logs embraced
in the latter branch, where it did not appear how the jury made
up the amount of their verdict, what they included or what they
rejected-Johnson v. Ballou, 379.
19. Exceptions which relate to mere discretionary rulings will not be
considered on error.-Davis v. Bush, 432.
20. Exceptions which refer to questions which, however decided,
could have produced no legal prejudice will not be considered on
error. - Ibid.
21. A finding of facts in an ejectment suit in which a record entry,
constituting an essential link in the chain of title, has been erro-
neously rejected as evidence, will not authorize a final judgment
in the supreme court, since it proceeded on a state of facts
wholly different from the case which would have been presented
if this evidence had been admitted.-Starkweather v. Martin, 471.
22. An objection which relates to the order of proof merely will not
be considered on error.-Morse v. Hewett, 481.
23. The correctness of a charge to the jury will not be considered on
error, except in so far as it is complained of, nor then, only so
far as it can be legitimately complained of by the plaintiff in
error.-Dresser v. Blair, 501.
24. Where a sentence which is only a part of the charge to the jury
is complained of, and no exception is pointed directly at this
sentence, and the court afterwards, in response to a request of
the party complaining, charged the jury in almost the precise
language of such sentence, except that a technical inaccuracy
was corrected, it is held that the error, if any in the first state-
ment, was corrected by the second specifically, and that no com-
plaint can be heard against a charge which is given as desired.
See BILL OF EXCEPTIONS, 1; CERTIORARI, 1; COSTS, 1; EQUITY
PLEADING AND PRACTICE, 5; EVIDENCE, 9, 11, 17-19; Quo
WARRANTO, 1-4; RAILROADS, 16; Replevin, 11; REQUESTS TO
CHARGE, 3.
See ADVERSE POSSESSION, 3; ASSOCIATIONS, 4; CERTIFICATES,
1-3; CERTIORARI, 1; DEEDS, 1; EVIDENCE, 37; GIFTS, 4; IN-
SURANCE, 7; NAMES, 1; PARTITION, 7, 8; PRACTICE IN SU-
PREME COURT, 4; RAILROADS, 22; REGISTRY, 3-5; RESULTING
TRUSTS, 3.
See ESTOPPEL, 2; EVIDENCE, 30.
See PRACTICE IN CIRCUIT COURTS, 3; SURETIES, 1.
PRIOR INCUMBRANCE.
See FRAUD, 3, 5–7.
See EVIDENCE, 37; GUARDIANS' SALES, 1; PARTITION, 5; WRIT
OF ERROR, 1, 2.
PROHIBITORY LIQUOR LAW.
The statute (Session L., 1871, Vol. 1, p. 363) giving a right of
action to the wife, child, parent, guardian, husband or other per-
son who shall be injured in person, property, means of support
or otherwise, by any intoxicated person, or by reason of any in-
toxication, against any person who, by selling or giving away
any intoxicating liquor, has caused or contributed to the intoxi-
cation, is held to be valid.-Kreiter v. Nichols, 496.
One engaged in the sale of intoxicating drinks is responsible un-
der this statute for the acts of his servants in that business, even
though in the particular transaction they disobeyed his instruc-
tions, in accordance with the general rules governing the relation
of master and servant.-Ibid.
But this principle cannot be applied to the case of a person who
goes without the permission of any one and drinks another's
beer;
and the fact that the owner afterwards demanded and re-
ceived pay for the property, cannot make such owner a wrong-
doer in the original trespass on his rights.—Ibid.
The statute law, as well as the common law, recognizes beer as
property and the brewing of beer as a lawful business, and pro-
tects this property as it does any other lawful product; and any
one who steals it, or converts it to his own use, is liable for its
value, whatever his motive; and if the owner may recover for it,
he may settle for it without thereby sanctioning what was origi-
nally done with it.-Ibid.
5. Exemplary damages should not be awarded under this statute
unless the act of giving or selling the intoxicating drinks was
willful, wanton, reckless or otherwise deserving of punishment
beyond what the requirements of mere compensation would im-
pose.-Ibid.
1. Under our statute (Comp. L., § 1564) a guaranty of collection
endorsed on a promissory note payable to bearer, may be sued
by any subsequent holder in his own name, subject to any equi
ties between the guarantor and the person to whom the guaranty
was made.-Waldron v. Harring, 493.
This statute, so far as any transfer of rights is concerned, does
not change the rule adopted by the prior act (Comp. L., § 5775);
the only difference between them being in dispensing with the
necessity of allegations concerning the assignment, which are
necessary in tracing title to paper not negotiable, and this re.
lates to form, and not to substance, and is purely remedial.—
Ibid.
This statute, so far as it relates to the method and form of
suing, may be applied as well to existing as to future contracts.
-1bid.
Under the prior act (Comp. L., § 5775) the holder of the note
could have sued in his own name, but an allegation of the trans-
fer of the cause of action would be required; but an amendment
to cure such a defect in the declaration would be a matter of
course.-Ibid.
An alteration in a material part by the holder of negotiable
paper, in the absence and without the knowledge of the maker,
ought not to be sustained as lawful, except upon very clear
proof that when actually made it had the assent of the party to be charged.-Swift v. Barber, 503.
Under our statute (Comp. L., § 1632) fixing the rate of interest at seven per cent., but making it lawful for parties to stipulate in writing for the payment of any rate not exceeding ten per cent. per annum, the rate of interest in a note can only be changed from seven to ten per cent., if at all, by a stipulation in writing.-Ibid.
7. Whether a verbal statement made by the maker to the holder of a promissory note during negotiations after maturity for an extension of time for payment, directing him to "make the note ten per cent.," imported an authority to actually alter the note as to the rate of interest:-Quære?—Ibid.
Such a statement, however, very clearly did not import a con. tinuing authority which would justify and make valid an alteration written out by the holder several months afterwards.-Ibid. See MARRIED WOMEN, 5; PRACTICE IN SUPREME COURT, 12.
PROOF OF SERVICE.
See HIGHWAYS, 6–10.
See EQUITY PLEADING AND PRACTICE, 22; Evidence, 36.
See NEGLIGENCE, 6; RAILROADS, 17–21.
PUBLIC INTEREST,
See EQUITY PLEADING AND PRACTICE, 8.
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