4. In equity, the statute of limitations, or objections in analogy to it upon
the ground of laches, may be taken advantage of by demurrer; and if
there be any ground of exception within the statute to prevent the bar,
or ground to rebut the presumption arising from length of time. it
should be stated in the bill. Campau v. Chene,
400
5. The rule extends to a bare equity against an equity, and is not limited
to the enforcement of an equity against the legal estate.
Loid.
It is not libelous to write and publish of and concerning one who is
druggist, "The above druggist in the city of Detroit refusing to con-
tribute his mite with his fellow merchants for watering Jefferson
avenue, I have concluded to water said avenue in front of Pierre Tel-
ler's store, for the week ending June 27, 1846." People v. Jerome, 142
In an action for flowing land, an unrevoked parol license, given by a third
person who had the right to flow, is a good defense. Millerd v. Recves
1. A license was granted to an administratrix to sell real estate for the pay.
ment of debts, under an act of the late territory of Michigan, entitled
an act directing the settlement of the estates of persons deceased, and
for the conveyance of real estate in certain_cases, adopted 27th July
1818. The license was granted on the 12th January, 1827, but the sale
did not take place until the 7th July, 1831. The sale was held to be
void, as more than four years had elapsed between the granting of the
license and the sale - the statute of limitation then in force, barring all
claims against the estate after four years. Campau v. Gillett, 416
2. Where a license was granted by a county court to an administratrix to
sell real estate, and after the granting of the license and before the sale,
the law giving the court jurisdiction was repealed, the sale was held to
be void - the repeal of the law being a revocation of the license. Ibid.
To sell liquor. See EVIDENCE, 14.
1. Actions for the recovery of dower are not within the statute of limita-
tions of 5th November, 1829, laws 1833, p. 408. May v. Rumney, 1
2. The right to dower is unlike any other right to land known to law, and
its peculiar nature is such as to exempt it from the operation of all gen-
eral statutes of limitations, however broad and comprehensive, in
which it is not named, or, by unavoidable implication, included. Ibid.
3. Debt on judgment recovered in 1824. Plea, statute of limitations. Repli-
cation, that in November, 1832, a pluries execution was taken out on
the judgment; that on the 17th of the same month, defendant filed a
bill in chancery and obtained an injunction, restraining proceedings
on the execution; that on the 17th of November, 1835, it was stipulated
between the parties in the chancery suit, that the injunction be dis
solved; that the pluries execution be set aside; that there be a refer-
ence to a master to take testimony in the chancery suit, and to state an
account between the parties; to state the amount due on the judgment,
and ascertain the amount of any and all legal and equitable setoffs to
the judgment. That testimony was taken under the stipulation by both
parties; that the master made his report in January, 1838, and that in
March, 1846, the case was heard in the court of chancery, and a decree
made dismissing the bill with costs. On demurrer, the replication was
held bad, as the case did not come within the exceptions of the statute
of limitations, and the replication did not show such an acknowledg
ment of the debt as would warrant the implication of a new promise.
Ten Eyck v. Wing,
40
4. Where a new promise is set up to take a case out of the statute of limita-
tions, it ought to be proved in a clear and explicit manner, either ex-
pressly, or by such an unqalified acknowledgment as authorizes its
implication.
Ibid.
5. The acknowledgment should contain an unqualified and direct admission
of a present subsisting debt, which the party is liable and willing to
pay, and be unaccompanied by any circumstances or declarations
which repel the presumption of a promise, or intention to pay. Ibid.
6. S. sued M. in a justice's court, and employed W., an attorney at law, to
appear and prosecute the suit for him on the return day. W. was pre-
vented from attending to the suit on that day, and requested S. to ap-
pear, who appeared accordingly. M. objected to S.'s appearance, and
required him to prove his authority, and S. not being able to prove a
formal authority, the action failed. Held, these facts did not make out
a case, within sec. 11 of ch. 2, tit. 6, part 3, R. S. 1838 (of the limita-
tion of personal actions), allowing a new action to be brought with-
in one year thereafter. Spier v. McQueen,
252
LOSS OF PROMISSORY NOTES.
1. What is sufficient prima facie evidence of the loss of a promissory note,
under R. S. ch. 102, sec. 88, p. 460, to admit parol evidence of its con-
tents. Higgins v. Watson,
2. The bond to be executed by plaintiff to defendant, under R. S. ch. 102,
sec. 89, upon bringing an action on a lost promissory note, should run
to all of the defendants, although some of them have not been served
with process.
Ibid.
A mandamus will be allowed to set an inferior court in motion, but not
for the purpose of requiring it to come to any particular conclusion,
or of retracing its steps where it has already acted, and this irre-
spective of the question, whether the party has or has not another
remedy. People v. Judges Wayne Co. Court,
See EVIDENCE, 4. VARIANCE, 1, 2, 3.
MODERATOR OF SCHOOL DISTRICT.
See ACTION, 2.
1. S. being indebted to W. & Co., as indorser on a promissory note, assigned
to them as collateral security a mortgage he held against H., which W.
& Co., were to collect and apply on the note. W. & Co. advertised the
mortgaged premises for sale, under the statute; but before the day of
sale, it was agreed between them and S. that the premises should be
bid off at the sale by A. S. W., for the amount due on the mortgage, and
that he should hold them in trust for S. and W. & Co.; and that if
within one year S. paid W. & Co. what was due on the note, A. S. W.
should convey the premises to him, but if not, then he should sell them
at public or private sale for what they would bring, pay W. & Co. from
the proceeds, and the balance, if any, pay to S. In pursuance of the
agreement the premises were bid off by A. S. W. for $572, the amounr
due on the mortgage. S. failed to pay W. & Co., and A. S. W. adver-
tised and sold the premises, which were purchased by W. & Co. for
$25, who afterwards sued S. for the balance due on the note. Held, S.
could not show in bar of the action that the mortgaged premises pur-
chased by W. & Co. were, at the time of sale, worth the amount due on
the note. Weed v. Snow,
128
2. An agreement in writing, intended by the parties to give a lien on real
estate for the payment of a debt, though not witnessed as required by
statute, to convey real estate, is good as an equitable mortgage. Ab-
bott v. Godfroy's Heirs,
3. A bill filed to foreclose a mortgage stated that the defendant, being in-
debted to complainant in the sum of $750, confessed five several judg
ments for $150 each, before a justice of the peace-setting out the
judgments as they were entered on the justice's docket- and that the
mortgage was given to secure the payment of the judgments in one
year. Defendant, by his answer, to which a replication was filed, ad-
mitted the judgments and mortgage, but denied the indebtedness, and
insisted the judgments were void. The cause was heard on the plead-
ings, and the court, being of opinion the judgments confessed before
the justice were void for not complying with the statute, dismissed
the bill with costs. Austin v. Grant,
See UNCONSTITUTIONAL LAWS, 5.
It is a general rule of law and equity, that, where a purchaser cannot
make out a title but by a deed which leads him to another fact, he
shall be presumed to have knowledge of that fact. Norris v. Hill,
1. Every obstruction in a street or highway is not a nuisance. People v.
Carpenter,
2. Whether an obstruction in a street or highway is or is not a nuisance,
is a question of fact to be found by a jury, and not a question of law.
Ibid.
The territory comprising the present state of Michigan remained under
the control and jurisdiction of the British government until the year
1796; and the ordinance of 1787, though made before that year, was
not in force while the territory was under such jurisdiction. Abbott v.
Godfroy's Heirs,
178
A partner cannot submit partnership matters to arbitration without a spe-
cial authority for that purpose from his copartners. Buchoz v. Grand-
jean,
PARTIES TO BILL IN EQUITY.
In foreclosing a mortgage against the heirs of a deceased mortgagor, the
personal representative of the deceased is not a necessary party, unless
the personal estate is sought to be charged with a deficiency in the
mortgaged premises to pay the debt. Abbott v. Godfroy's Heirs,
See PENAL STATUTES. SPIRITUOUS LIQUOR. EVIDENCE, 12, 14.
Where a penal statute is repealed, without a reservation or saving clause
in favor of penalties that had accrued under it, such penalties cannot
afterwards be recovered. Engel v. Shurts,
R. S. 1838, p. 639, sec. 2, does not make that perjury which is not material
to the issue. People v. Collier,
What constituted a physician, within the meaning of the Exemption Act
(Ses. L. 1842, p. 70), and the act (Ses. L. 1844, p. 73) repealing ch. 2
tit. 8, part 1, R. S. 1858, quære. Sutton v. Facey,
See EVIDENCE, 8. ERROR, 3.
1. A plea in abatement to an indictment, that states several distinct facts
having no relation to or dependence upon each other, is bad for du-
plicity. Findley v. People,
234
2. A plea in abatement should be certain to every intent, and conclude by
praying judgment of the indictment and that it may be quashed, and
must be verified by affidavit.
3. A plea within the meaning of sec. 17, ch. 92, R. S, is simply a statement
of the grounds of defense, without regard to the form of stating them;
and yet they should be stated with such certainty as to enable the op-
posite party to understand definitely upon what the defendant relies as
his defense. Porter v. Kimball,
See GENERAL ISSUE. ABATEMENT. QUO Warranto.
See PARTIES TO BILL IN EQUITY. FORECLOSURE
1. The court will presume the law of a sister state is the same as that of
their own state, unless the contrary is shown. Crane v. Hardy, 56.
2. The court will not presume spirituous liquors are sold in the bar-room of
a tavern, when by law every license to keep a tavern does not author-
ize the sale of spirituous liquors. Savier v. Chipman,
116
Plaintiff wrote to defendant: 'I have on hand a lot of furs, which I am
anxious to sell." Defendant replied: "I have this day written to Mr.
Thomas G. Raitte, of Norwalk, who is my agent, to make you a visit
for the purpose of purchasing your furs, and I hope and trust that
you and Mr. Raitte will be able to make a bargain for your lot of
furs." Raitte afterwards called on plaintiff and purchased the furs,
paying part cash, and giving a note for the balance in name of de
fendant. Held, 1st, that defendant was liable to plaintiff for the un
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