1. A discharge in bankruptcy is personal and may be waived by
executing a cognovit, after the adjudication of bankruptcy,
to be used in obtaining a judgment as a basis for certain
garnishment proceedings. Taber v. Wayne Circuit Judge,
2. Money paid by an insolvent firm to creditors who have reason
to believe that it is insolvent and the payment would operate
as a preference, is recoverable in assumpsit by the trustee in
bankruptcy, under chapter 487, 32 U. S. Stat. § 13, passed
February 5, 1903, amending the bankruptcy act. Matthews
v. Joannes Bros. Co., 663.
3. Knowledge that the assets of a firm exceeded the debts by only
a small margin, as estimated by the members of the firm,
and that it was unable to raise the amount due the creditor
without mortgaging the assets, constitute sufficient notice
that the payment will operate as a preference. Id.
See MANDAMUS (8).
BENEFICIAL ASSOCIATIONS-See INSURANCE (1, 2, 4–9).
BILL OF EXCEPTIONS-See EXCEPTIONS, BILL OF.
1. A debtor made an offer that if the creditor would accept cer-
tain notes of third persons, indorsed to him, and credit him
on the amount of the debt and draw on him for the balance,
he, having indorsed said notes, would guarantee their pay-
ment. Held, that the creditor not having notified the debtor
of the acceptance of the offer, he was not bound as guarantor
of said notes. Brown v. Spiegel, 138.
2. Where, in an action upon promissory notes, it appeared from
the evidence and a stipulation that plaintiff received certain
notes of third persons not then due, indorsed to defendant,
and by defendant indorsed to plaintiff, and that plaintiff kept
the notes and did not present or protest them when they be-
came due, defendant was entitled to set off the amount un-
paid on said notes against the amount owing to plaintiff. Id.
3. Bad faith, and not gross negligence alone, must be shown to
deprive a holder in good faith for value, of his rights as such.
Armstrong v. Stearns, 597.
4. Gross carelessness in such cases is merely evidence of bad
faith. Id.
5. Accommodation notes executed by one manager, without ex-
press authority under such statutory provisions, through a
long course of dealings known to the managers and others
interested in the copartnership, are valid in the hands of pur-
chasers in good faith, who may rely on the presumption that
the necessary authority had been given. Id.
See LIMITED PARTNERSHIPS (2).
BOARDS OF SUPERVISORS-See INTOXICATING LIQUORS (15).
BONA FIDE HOLDER-See BILLS AND NOTES (3).
BONA FIDES AS DEFENSE-See TRUSTS (3, 6).
BONDS-See EXCEPTIONS, BILL OF; EXECUTORS AND ADMINISTRATORS (4); MANDAMUS (2, 3); MUNICIPAL CORPORATIONS (6); PRINCIPAL AND SURETY; TROVER AND CONVERSION.
BRIDGES-See MANDAMUS (5, 6); RAILROADS (6).
1. In an action for commissions on the sale of certain real estate, under plea of the general issue, defendant is entitled to show that the contract alleged in plaintiff's declaration was not the contract actually made; such defense, not being affirmative by way of confession and avoidance, need not be specially pleaded. Weaver v. Richards, 320.
2. Where, in such action, it appeared that the deed of the land sought to be conveyed contained a reservation of all mineral rights, etc., and there was testimony that the prospective purchasers would not have accepted the deed with such reservation, the question of whether or not they knew of such reservation was properly submitted to the jury. Id.
BUILDING CONTRACTS-See PRINCIPAL AND SURETY.
BUILDING RESTRICTIONS-See EQUITY (2); SPECIFIC PERFORMANCE (3, 4).
BURDEN OF PROOF-See EVIDENCE (5); MUNICIPAL CORPORATIONS (3).
BY-LAWS-See INSURANCE (5-9).
CANCELLATION OF INSTRUMENTS.
1. Complainant, under the terms of a will, was bequeathed a sum of money which she desired defendants to invest for her. Defendants induced her to sign an agreement by which said legacy was assigned to them in consideration for which they were to pay her a certain amount monthly during her lifetime. The agreement recited that complainant did not consider herself competent to care for her money and invest it properly, and that she had great confidence in the honesty and ability of defendants, which facts were also established by other testimony. Held, that, as defendants occupied a fiduciary relation to complainant, it was incumbent upon them to apprise her of the legal effect of the agreement, and, it appearing from the testimony that her rights had not been so protected, she was entitled to a decree setting aside the agreement on the ground of fraud. Witham v. Walsh, 582. 2. Complainant, under the terms of the decree, was properly entitled to follow the fund to the property in which it was invested, and was also entitled to a personal decree against defendants; since if the property was insufficient to satisfy the terms of the decree, defendants would be allowed to profit from their wrongdoing. Id.
CANVASS OF VOTES-See INTOXICATING LIQUORS (15).
1. Where, on petition of certain railroad companies for a writ of
mandamus to compel the trial court to issue a temporary in-
junction restraining the Michigan railroad commission from
enforcing its order relative to excess baggage rates, under
Act No. 312, Pub. Acts 1907, pending a judicial determina-
tion of its validity, it appeared, in the trial court and in this
court, by concession of counsel, that said rates are not con-
fiscatory, but afford some remuneration over and above ex-
penses; that petitioners were afforded a full hearing before
the commission, but refrained from furnishing any informa-
tion concerning the same; that they had not, under said
law, applied to the commission to change the rates so fixed;
and that said roads operating in part in another State were
there, without protest, charging a much lower average
rate than that fixed by the commission. Held, on such
showing, it was not an abuse of discretion to deny the writ.
Michigan Cent. R. Co. v. Wayne Circuit Judge, 459.
2. Under section 16, Act No. 312, Pub. Acts 1907, the rates fixed
by the commission are maximum rates, and do not prevent
railroads from fixing lesser rates, provided there is no dis-
crimination or rebating. And between competing points
roads having the longer haul may charge the same rates as
roads having a shorter haul. Id.
3. Under section 26, Act No. 312, Pub. Acts 1907, the power con-
ferred upon the courts is solely to determine the reasonable-
ness of the rates fixed by said commission, and if it is judi-
cially determined that the rates so fixed are unreasonable,
the court has not authority to determine what are reasonable
rates, but will refer the question back to the commission to
establish other rates. Id.
4. Where, under said act, provision is made for a speedy remedy
for parties claiming to be aggrieved by the order of said
commission, by a resort to a court of equity, and such suit
given precedence in the circuit and this court over all other
cases, and the trial judge is expressly by said statute given
power and discretion to determine whether a preliminary
injunction should issue pending a hearing upon the merits,
complainants are not, as a matter of law, entitled to the is-
suance of the writ. Id.
1. In certiorari proceedings the appellate court considers ques-
tions of law only, and such questions must be raised in the
affidavit for the writ. Booker v. Grand Rapids Medical Col-
lege, 95.
2. Under Act No. 310, Pub. Acts 1905, an order overruling a de-
murrer to a declaration is reviewable on a writ of certiorari.
Boughner v. Bay City, 193.
3. Certiorari is the proper writ to review mandamus proceedings;
but, as the case is briefed by both parties, the court will con-
sider the application as if properly made and dispose of the questions presented. Chicago, etc., R. Co. v. St. Clair Circuit Judge, 567.
CHANCERY APPEALS-See APPEAL AND ERROR (6, 7, 15, 20). CHANCERY COURTS-See COURTS (1,3); PROBATE COURTS (2). CHANGE OF GRADE--See HIGHWAYS AND STREETS; MUNICIPAL CORPORATIONS (1-5); RAILROADS (3, 4).
CHATTEL MORTGAGES-See SALES (6); VENDOR AND PURCHASER (2).
COERCION-See INTOXICATING LIQUORS (14).
COGNOVIT-See BANKRUPTCY (1); MANDAMUS (8).
COLLEGES AND UNIVERSITIES.
1. Private institutions of learning, although incorporated, may select those whom they will receive as students, and may discriminate by sex, age, proficiency in learning, and otherwise; and the arbitrary refusal to receive any student, in the first instance, would not violate any privilege or immunity resting in positive law, protected or guaranteed by the Federal or the State Constitution. Booker v. Grand Rapids Medical College, 95.
2. Although such discrimination may be made on the original application of prospective students, such institutions may not, after having accepted and partially performed their contract. arbitrarily refuse to permit further attendance; there being no lack of mutuality nor want of consideration in the contract. Id.
COMMISSIONS-See BROKERS (1).
COMMON LAW-See STATUTES (3).
COMMON-LAW COURTS-See COURTS (1).
COMPLAINING WITNESS-See CRIMINAL LAW (8).
COMPROMISE AND SETTLEMENT.
A contract whereby the parties agree that it is made "in full settlement of all matters between them" is conclusive of all claims existing prior to such agreement, in the absence of any showing of fraud, concealment or mutual mistake. Brevoort v. Partridge, 359.
COMPUTING DEVICES-See MUNICIPAL CORPORATIONS (14). CONSTITUTIONAL LAW.
1. On a bill by the administrators, with the will annexed, for the specific performance of a land contract, it appeared that authority to make said contract was claimed under section
CONSTITUTIONAL LAW-Continued.
9078, 3 Comp. Laws; that said section was an amendment to
section 6025, 2 How. Stat., and was entitled "An act to
amend section one
* * being section 6025, 2 How. Stat.,
relative to the sale of lands for the payment of debts by exec-
utors, administrators, and guardians;" that said section as
amended provided that "whenever it shall be made to appear
to the probate court that it is necessary for the preservation
of the estate, or to prevent a sacrifice thereof, or for the best
interest of all concerned therein," the administrators may
sell said estate for that purpose upon obtaining a license
therefor. Held, that, under section 20, article 4, of the Con-
stitution, the provisions of the act were broader than its title
and were void, and complainants were not authorized to
make the contract sought to be enforced. Bresler v. Delray
Real Estate & Investment Ass'n, 3.
2. The fact that the statute permitting the deduction of debits
from credits, in listing personal property for taxation, has
been in force during the entire history of the State, should
not deter the court from determining its invalidity if con-
vinced that such law was beyond the legislative power.
Stumpf v. Storz, 229.
3. A statute is not void for duplicity of title and objects, under
section 20, article 4, of the Constitution, where the title, after
stating the object, does no more than add a notice of a re-
pealing clause, which repeal would be effected by implica-
tion by the enactment of the law itself. People v. Stickle, 557.
4. Act No. 144, Pub. Acts 1907, § 1, which provides, after stating
the elements of the offense, for securing to the family of a
convicted person a portion of his earnings during his confine-
ment, is not invalid under section 20, article 4, of the Consti-
tution; since there is an apparent and necessary connection
between the offense created, its punishment, and the enforced
use of his earnings after his conviction. Id.
5. And the provision in said section allowing the convicted per-
son before sentence to give a bond for the support and main-
tenance of his family, upon the approval of which the court
is authorized to suspend sentence, is also within the object
expressed in the title; since such provision is intended to
secure such maintenance by the voluntary action of the con-
victed person. Id. 558.
See CARRIERS (1, 3); COLLEGES AND UNIVERSITIES (1); INSUR-
ANCE (6); MUNICIPAL CORPORATIONS (20); STATUTES (4);
TAXATION (1, 2, 5).
CONSTITUTIONAL PRIVILEGE-See WITNESSES (3).
CONSTRUCTION OF STATUTES-See CONSTITUTIONAL Law (5);
CRIMINAL LAW (2, 10); STATUTES (1).
CONTEMPT-See MANDAMUS (6); WITNESSES (3).
1. Plaintiff made a contract with defendant to construct an ap-
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