FRAUDULENT DEBTORS-Continued.
3. It is no objection to the affidavit that it was made by plain-
tiff's attorney, and that it contains no showing that he had
personal knowledge of the matters therein set forth, where
the facts essential to the jurisdiction are stated positively, and
are not of such nature that they could not have been within
the knowledge of the affiant. Id.
4. Said act is not in conflict (1) with section 33, art. 6, Const.,
prohibiting imprisonment for debt founded upon contract,
since such section expressly excepts cases of fraud; (2) with
section 31, art. 6, prohibiting the imposition of cruel or un-
usual punishment, since, under section 11 of the act, the
debtor may secure his release from imprisonment by paying
the debt, by giving security for its payment, by assigning his
property and obtaining a discharge under chapter 306, 2 How.
Stat., or by giving security that he will obtain such discharge;
(3) with section 28, art. 6, guaranteeing certain rights to the
accused in every criminal prosecution, since the action pro-
vided for is a civil and not a criminal proceeding; or (4)
with section 1, art. 6, vesting the judicial power in certain
courts and in justices of the peace, in that it assumes to con-
fer such power upon a circuit court commissioner. Id.
GARNISHMENT.
1. A suit is commenced when the declaration is filed, within the
meaning of 3 How. Stat. § 8058, authorizing the issuance of a
writ of garnishment "at the time of or after the commence-
ment of suit." McDonald v. Alanson Manfg. Co., 10.
2. An affidavit for a writ of garnishment, made upon the same
day with the commencement of the original suit, and reciting
that the suit is "about to be commenced," is sufficient under
3 How. Stat. § 8058, providing that the affidavit shall be filed
"at the time of or after the commencement of suit," but not
specifying the time for making it. Millard v. Lenawee Cir-
cuit Judge, 134.
3. A garnishee summons which, by a clerical mistake, warns
the agent of the plaintiff who made the affidavit, instead of
the garnishee, to pay no more money to the principal defend-
ant, is not fatally defective, but may be amended so as to con-
form with the statute.
4. 2 How. Stat. § 8098, providing that a garnishee who appears
and makes disclosure shall be allowed a reasonable sum for
his counsel fees and other necessary expenses, applies only
where no issue is framed, and the garnishee is adjudged liable
or is discharged upon answer. The costs in contested cases
are regulated by 2 How. Stat. § 8073, and are limited in amount
by the general statute respecting costs. Wolcott v. Lenawee
Circuit Judge, 267.
5. Where, upon the trial of the statutory issue in garnishment,
judgment is rendered against the garnishee for a greater
amount or for other property than he would have been charge-
able for on his disclosure, the plaintiff is entitled to full costs
as a matter of right. Jackson v. Leelanaw Circuit Judge, 332.
GAS COMPANIES.
1. Charges involuntarily paid to a gas company by a private con-
sumer in excess of the rates prescribed by the ordinance under
which the company is operating may be recovered back,
although a right of action therefor is not expressly conferred
by the ordinance. Pingree v. Mutual Gas Co., 156.
2. Where an ordinance provides that a gas company shall not
charge consumers more than an average of the rates charged
in certain cities, payment of a charge in excess of such rate
is not voluntary, where made in ignorance of the fact that it
is excessive, even though the consumer be negligent in not
ascertaining the fact. Id.
GASOLINE--See FIRE INSURANCE (4, 5).
GOOD CHARACTER-See CRIMINAL LAW (24).
GRAND JURY-See CRIMINAL LAW (38).
HEIRS-See LIFE INSURANCE (3).
Members of a township board who took part on the hearing of
an appeal by a land-owner from the decision of the highway
commissioner in establishing a highway across appellant's land,
and who decided that the highway was a public necessity, are
disqualified from sitting on the hearing of a second appeal by
the same land-owner from the decision of the commissioner
re-establishing said highway, the former proceeding having
been quashed in the circuit court. Locke v. Highway Commis-
sioner of Wyoming Tp., 681.
A deed of a tract of land including a homestead, in which the
wife does not join, is void as to the entire tract, if the home-
stead is incapable of severance. Sammon v. Wood, 506.
1. Under 2 How. Stat. § 6245, providing that, upon granting a
divorce, if the estate of the wife is insufficient for the suitable
support and maintenance of herself and the children com-
mitted to her care, the court may decree to her such part of
the personal estate of the husband, and such alimony out of
his real and personal estate, as shall be just and reasonable in
view of all of the circumstances, the court cannot direct that
an amount awarded for the support of a child be paid to its
guardian, instead of to the wife. Swiney v. Swiney, 459.
2. An award of $1,000 alimony to a wife who is granted a divorce-
and the custody of a minor child will not be disturbed, where
the wife has property valued at $3,500, and the husband has
property worth $5,500. Id.
3. An allowance of temporary alimony to a wife who had sepa-
rated from her husband, taking their infant child with her,
granted upon a petition to which was appended a physician's
bill for attendance on the child, verified by the affidavit of the
physician, is presumed to include the amount of such bill, and
HUSBAND AND WIFE-Continued.
the husband, having paid the allowance, is exonerated from
further liability for such services. Hyde v. Leisenring, 490.
4. The sufficiency of an allowance of temporary alimony cannot
be attacked collaterally. Id.
5. Upon an appeal by a wife from the terms of a decree by which
she was granted a divorce on the ground of extreme cruelty,
it was held that the court properly awarded to her the custody
of the children under 14 years of age, and permitted the others
to elect with which parent they would reside. Horning v.
Horning, 587.
6. In estimating the value of the husband's estate as the basis for
an allowance of permanent alimony, his interest in an
unfinished lumbering contract, from which he has derived and
will in all probability continue to derive large profits, should
be taken into consideration. Id.
See FRAUD (3); HOMESTEAD; LIFE INSURANCE (5); MARRIAGE;
SEDUCTION.
IMPEACHMENT-See WITNESSES (4, 5).
IMPRISONMENT FOR DEBT-See Fraudulent DEBTORS (4).
INCOMPETENT PERSONS.
A release to a mortgagee of the mortgagor's equity of redemp-
tion will not be set aside 17 years after its execution, and after
the death of both of the parties and of the witnesses to the
transaction, on the ground of the mental incapacity of the mort-
gagor, except upon the clearest and most convincing testi-
mony. Richardson v. Medbury, 176.
A boy 10 years of age, who is injured, while running upon a side-
walk, by stepping into a hole therein, of the existence of which
he has knowledge, is not guilty of contributory negligence, as
a matter of law, but it is for the jury to say whether he used
such care and discretion as boys of his age usually exercise
under like circumstances. Strudgeon v. Village of Sand Beach,
497.
See CONTRIBUTORY NEGLIGENCE (7); HUSBAND AND WIFE (1-3,
5); PARENT AND CHILD; PERSONAL INJURIES (3).
INSTRUCTIONS TO JURY-See TRIAL (4, 7-9, 11).
1. The State has the power to prescribe the conditions upon which
individuals shall have the right to transact the business of in-
surance within its borders, so long as it does not violate the
provisions of the Federal Constitution by discriminating
against the citizens of other States. People v. Gay, 422.
2. Hence, the general insurance laws of this State containing no
such discrimination, Act No. 74, Pub. Acts 1893, prohibiting
the solicitation of insurance for any nonresident person, etc.,
without first obtaining the prescribed certificate of authority
from the commissioner of insurance, is valid. Id.
INTENT-See CRIMINAL LAW (12, 13).
INTEREST-See JUSTICES OF THE PEACE (4).
INTOXICATING LIQUORS.
1. General provisions of a city charter regulating the enact-
ment of ordinances and resolutions have no application to
the performance of the duty imposed upon the common
council by section 8 of the liquor law of 1887 (3 How. Stat. §
2283d1) with reference to the approval of liquor bonds. O'Hal-
loran v. Mayor and Recorder of Jackson, 138.
2. Under the statute cited, a majority vote of the members present
at a legal meeting of the council is sufficient to approve the
bond, in the absence of conflicting provisions in the charter.
Id.
3. The approval of the bond by the mayor is unnecessary, where
the charter does not require it; and the fact that under the
charter all ordinances and resolutions must receive the
approval of the mayor, and that a provision enacted subse-
quent to the general liquor law confers upon the council the
power to regulate, license, prohibit, and suppress saloons, does
not necessitate the mayor's approval of the bond, where no
action has been taken by the council under the power so
conferred. Id.
4. Evidence adduced upon the preliminary examination of one
charged with a violation of the local option law, tending to
show that the respondent kept an ordinary saloon for the sale
of intoxicating liquors, is prima facie sufficient to authorize
the filing of an information containing the statutory excep
tions in relation to druggists and registered pharmacists. Peo-
ple v. Berry, 256; People v. Kahler, 345.
5. Upon a prosecution for keeping a plate for the sale of intoxicat-
ing liquors, in violation of the local option law, evidence of
sales made prior to the date alleged in the information, ex-
tending over a period of three months, is admissible, as bear-
ing upon the character of the place kept by respondent at the
time charged. People v. Caldwell, 374.
6. Where, upon a prosecution for a violation of the local option
law, it appears that the complaining witness purchased liquor
from the respondent for the purpose of obtaining evidence
against him, an instruction that such fact should be considered
by the jury, in determining the credit to be given to his testi-
mony, is sufficiently favorable to the respondent, and it is not
error to refuse instructions in that connection referring to such
witness as a 66
'spy" and a " hired witness," and reciting that
"he was willing to and did ask the respondent to violate the
law for the sole and express purpose of making a case and in-
stituting a criminal prosecution against him." People v. Ben-
nett, 430.
7. Where the record upon an appeal from a conviction under
the local option law shows that the proceedings of the board of
supervisors in relation to the adoption of the law were offered
and received in evidence, respondent's counsel waiving the
reading thereof, and a copy of the evidence so introduced is
not returned, an objection that the court erred in instruct-
ing the jury that the law was in force within the county will
INTOXICATING LIQUORS-Continued.
be disregarded, the question as to the sufficiency of the proof
in that particular being for the court, and not for the jury. Id.
431.
8. The right of action conferred by the Michigan civil-damage
law (3 How. Stat. § 2283e3) is limited to cases where the in-
juries are the direct result of acts done while intoxicated, or
where they indirectly result by reason of the intoxication.
Dennison v. Van Wormer, 461.
9. Hence, in an action by a wife for injury to her means of sup-
port, arising from the imprisonment of her husband' upon his
conviction of burglary committed while intoxicated, an instruc-
tion authorizing a recovery if the jury should find that the
husband formed the intent to commit the offense by reason of
the intoxication, or that he was so intoxicated at the time as to
be incapable of forming any intelligent intent, is sufficiently
favorable to the plaintiff. Id.
10. The fact that an attorney is strongly prejudiced against the
liquor traffic does not disqualify him from assisting in the
prosecution of one charged with a violation of the local option
law. People v. O'Neill, 556.
See CRIMINAL LAW (9, 21, 22, 28, 40); JURY (2); LIFE INSURANCE
(6, 7).
JUDGMENT-See ASSUMPSIT; JUSTICES OF THE PEACE (4, 5); LOG-
GING LIENS (5); MUNICIPAL CORPORATIONS (12); STATUTE OF LIMI-
TATIONS; TOWNSHIPS (4); WRIT OF ERROR (2).
1. 1 How Stat. § 466, providing that, on the trial of an action
in which a county is interested, the electors and inhabitants
of such county shall be competent jurors, is not invalid as
attempting to deprive a party of his constitutional right to a
trial by an impartial jury, since the interest of such persons
as taxpayers is so remote that it may be presumed to be
incapable of influencing their conduct. Smith v. German Ins.
Co., 270.
2. A conviction for a violation of the liquor law will not be
reversed because the trial court required counsel for the re-
spondent so to modify a question asked of a juror on his voir
dire as not to suggest that he would have a desire to give his
verdict one way or the other if the evidence should be even,
but to ask him merely whether he would have such a desire,
or which way he would find under such circumstances. Peo-
ple v. Caldwell, 374.
See APPEAL AND ERROR (7); CRIMINAL LAW (35, 36, 38).
1. Under 2 How. Stat. § 6903, providing that a justice of the
peace may adjourn a cause, under certain circumstances, “at
the time of the return of process therein, an adjournment on
the return day, without a return having been made, is un-
authorized, and the subsequent proceedings are void. Har-
bour v. Eldred, 95.
|