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Abigail was not a member of Elvira's lam- , tracts made, or attempted to be made, ily. or dependent upon her for support, nor prior to its enactment. The contract of a creditor; and that Elvira Smith had no insurance set up in the bill is against pubInsurable interest whatever in the life of lic policy, and void. Complainants are Abigail Smith. That at the time the ap- | not parties to it, neither have they been plication was made and policy issued Abi- injured by it. It could not be enforced gall Smith was over 70 years of age, and between the parties in courts of justice; was incompetent and incapable, in law, and the fact that one of the parties to the of making contracts, and was then under illegal contract has seen fit to pay over to guardianship. That she never made or the other the wager does not afford a rigned the application for insurance, and basis in equity for outside parties to lay never paid any of the premiums; but such claim to the reward of iniquity. premiums were paid by said Elvira Smith It is stated in the bill that, by virtue of and Benjamin W. Pinch. That since the the application and issuing of the certifideath of Abigail the heirs at law and ad- cate, Abigail Smith became a member of ministrator have claimed the money due the society, and that her life was insured on said policy, and have notified the insur- by such certificate for $3,000, pursuant to ance company not to pay it to any other the said charter, by-laws, and certificate persons; yet, notwithstanding, the said of membership; and it is charged that on company had paid the moneys due and her death her administrators and heirs at payable upon such insurance policy to El- law are entitled to the money. This posivira Smith or Benjamin W. Pinch, her as- tion is inconsistent with the statement signed agent or attorney, and be now that Abigail Smith not only never signed holds the same, and refuses to pay it over the application, but was legally incapable to the heirs at law of Abigail Smith, or toof entering into a contract; but if she was, her administrator. It further relates that by the proceeding, constituted a member, the contract of insurance was made and ex- the character of the transaction is not alecuted in the state of Michigan, and by the tered. The insurance was effected, and charter and by-laws of the company Abi. | the beneficiary named bad no insurable ingall Smith then and there became a mem- terest, and the contract was merely a ber of the society, and possessed of all the wager upon the life of Abigail Smith, and rights and privileges of the society for her cannot be enforced, without the aid of a self and personal representatives, heirs, and statute authorizing it, either at law or in assigns. The legislature of 1887, by Act equity. The decree dismissing the bill of No. 187, passed an act to review the laws complaint is affirmed, with costs. The providing for the incorporation of co-op- | other justices concurred. erative and mutual benefit associations; which law went into effect on the 26th day

(80) Mich. 472) of September, 1887. Section 16 of this act

WILSON v. WILSON. provided that corporations organized, exinting, or doing business in this state un

(Supreme Court of Michigan. May 2, 1890.) der or by virtue of the provisions of that

HUSBAND AND W176-JOINT OBLIGATIONS-LIAact should not issue any policy or certifi- BILITY OF Wire's ErTATE--EVIDENCE. cate of membership upon the life of any 1. The owner of a bond executed by husband person over the age of 65 years, nor upon

and wife for money borrowed by the wife, and any person not capable, in law, of making used by her to build on her own land, is, on the contracte, nor upon any life in which the out of her estate.

wife's death, entitled to allowance of the claim beneficiary named has not an insurable in

2. In a suit to enforce a bond executed by a deterest; nor unless the person whose life is ceased wife, against her estate, plaintiff's daughproposed for insurance shall have made ter, who was a sister of the deceased wife, is a comund signed an application for such certifi- petent witness as to statements made to her by cate or policy. There are other restric- the wife before her death. She is not within the tions and regulations in the section, and inhibition of How. St. Mich. $ 7545, prohibiting the It contains the provision following: “Any opposite party from testifying in regard to trans

actions with a deceased party. certificate or policy issued in violation of the above provisions shall be void as to Error to circuit court, Wayne county; the beneficiary therein named: but the HENRY N. BREVOORT, Judge. amount thereof shall, in case of death, be Thomas Hislop, for appellant. E. H. payable to the heirs of the member."

Sellers, for appellee. The rights and equities of the heirs of Abigail Smith are based upon the above GRANT, J. The commissioners, appointclause of the statute. It is admitted by ed by the probate court to hear and detercounsel for all parties that the contract of mine claims against the estate of Helen Insurance is utterly null and void, as Wilson, deceased, allowed the claim of against publie policy; and counsel for Eliza Wilson for $1,624.58. The adıniniscomplainant concedes that, unless the trator appealed from this allowance to above statute applies to this case, the con- the circuit court. The case was tried in tract cannot be enforced by complainants. that court before a jury, resulting in a verThe statute does not in its terms, por by dict and judgment in favor of the claimImplication, apply to the policy or con- ant. The administrator brings the case tract of insurance in this case. This so- into this court by writ of error. Plaintiff called contract was made more than four introduced in evidence a bond dated May years before the law of 1887 took effect. 1, 1875. executed by George Wilson and The act applies only to corporations or Nellie Wilson, the deceased, for the sum of ganized under it, and this corporation was $1,400, with interest at 7 per cent., and not. It is not retroactive in its terms, and running to Henry and Eliza Wilson. Hencannot be made to apply to insurance con- ry Wilson assigned all his interest in the

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bond to Eliza. Annual payments of in- | obligation to show only that the materials terest were indorsed on the bond to and for which their joint obligation was givincluding the year 1885. George and Helen en went to improve her separate property. Wilson were husband and wife at the time Emery v. Lord, 26 Mich.431. It will appear the bond was executed. It is claimed from the statement of the charge above that this money was obtained by Helen given that the trial judge recognized this for hier sole benefit, and was used in erect- distinction when he told the jury that ing a house upon land of which she was they must be satisfied that she (Mrs. Wilthe owner in fee. It is conceded that she son) borrowed the money. Judgment owned the land, and there is no doubt but affirmed, with costs. The other justices that about that time she erected the house concurred. upon the land. Mrs. Martha Harris, the daughter of Henry and Eliza Wilson, tes

(80 Mich. 382) tified, under objection, that Helen Wilson

CALDWELL et al. v. BOWEN et al. told her, shortly before the erection of the (Supreme Court of Michigan. May 2, 1890.) house, that she was going to borrow the

REPLEVIN - DECLARATION - EVIDENCE-JURISDICmoney from her father and mother. Her

TION-Costs. testimony was competent. It was not

1. In replevin for goods sold on the ground that within the inhibition of How. St. $ 7545, the statement of the buyer as to his financial conprohibiting the opposite party from testi- dition, made to a mercantile agent, on the faith of fying to matters which, if true, must have which the sale was made, was false, the agent, in been equally within the knowledge of a

testifying, may refresh his memory, as to repdeceased party, in a suit prosecuted or de

resentations of the buyer, from a copy of a statefended by the heirs, assigns, legatees, or

ment made by him (the agent) at the time; but

where he testifies that he does not remember personal representatives of such deceased

the figures given him by the buyer, but merely person. Another witness by the name of that he went to him and got the statement, he Adams, who was not related to any of cannot read the copy in evidence. the parties, testified that Helen Wilson 2. In a declaration in replevin, an allegation told him that she obtained money with following the description of the goods, being an

“ which to build the house from her husband's

invoice * * sold to E. T. A. & Co., of

is mere description; and the declaration is not obparents, Henry and Eliza Wilson. This

jectionable on proof that the goods were sold to was, in substance, all the testimony on E. T. A." the part of plaintiff. The defendantintro- 3. How. St. Mich. $ 8964, provides that, if plainduced no evidence. The court thereupon tiff recovers judgment, he shall recover costs “in charged the jury that, if they were not all actions of replevin, and in all actions for the convinced that Mrs. Harris and Mr. recovery of any debt, * * in all cases where Adams told the truth, then the plaintiff

the court has exclusive or concurrent jurisdiction."

Held that, even if the court has no jurisdiction in could not recover; that if they were satisfied that she borrowed the money, and

cases involving less than $100, plaintiff is entitled

to costs, on recovering judgment in replevin, when that it was used for the benefit of her es

the declaration and affidavit allege the value of the tate, then the plaintiff was entitled to re- goods as over $100, and it appears that he sold the cover, notwithstanding the fact that she goods sued for, a short time before, for the alleged was a married woman, and that she and amount, though, by reason of the loss or disposition her husband signed the bond; but that, if

of the goods, he recovers less than $100 worth. In

such case the amount involved is over $100. she and her husband jointly borrowed the money, their verdict must be for the de- Error to circuit court, Wayne county; fendant. The circuit court correctly

correctly CORNELIUS J. REILLY, Judge. charged the jury, and it is difficult to con- Geo. W. Radford, for appellants. John ceive how the charge could have been W. Beaumont, (Floyd R. Mechem, of counmore favorable to defendant, or how the sel,) for appellees. jury could honestly have reached any other conclusion. The only evidence in the case LONG, J. This action of replevin was bearing upon the question was that she tried in the Wayne circuit court before a borrowed the money, and that it was used jury, where the plaintiffs had judgment. for her sole benefit. Under these circum- Defendants bring error. Twelve errors are stances, she was liable. The facts are en- assigned. tirely different from those in Reed v. Buys, It appeared upon the trial that the plain44 Mich. 81, 6 N. W. Rep. 111. In that case tiffs, who were copartners doing a mercanthe sole defense was that the note was tile business at Lynn, Mass., sent to E. T. not given for any purpose, relating to her Adams & Co. a quantity of ladies' shoes own property or interest, and it appeared on or about October 29, 1887. The goods conclusively that such was the case. In were sold on credit, and were claimed to the case at bar it appears equally conclu- be worth the sum of $115. The goods sive that the bond was given for purposes were ordered by Mr. E T. Adams, by letrelating to her own property. But at all ter addressed to the plaintiffs at Lynn, events, the jury have so found, and that Mass., dated June 1, 1887, and the order to is conclusive upon us. The position taken be filled in the following October. It apby counsel for defendant, that, inasmuch pears that the plaintiffs had, in the Januas George Wilson became in law liable ary previous, made inquiry as to the finanupon the bond, his wife was not liable, cial standing of Mr. Adams; and March although she borrowed the money for use 10, 1887, Edward Russell & Co., a mercanupon her own separate estate, is unsound, tile agency, sent them, in answer, that E. and unsupported by authority. None of T.A.(meaning E.T. Adams) states: “Have the cases cited hint at any such doctrine. no partner, but carry on business as above, This court has gone no further than to hold [that is, as E. T. Adams & Co.] Have in that it is not sufficient to warrant a re- stock about $18,000; outstanding accounts, covery against the wife ripon their joint | $3,000; liabilities, $7,000, of which about $2.500 is to the bank, balance for merchan- | the ground that it was incompetent and dlne. Have met all paper at maturity, but immaterial under the pleadings. The witam behind probably 30 days with some of ness answered, and gave the same statemy bills; but owe no one firm over $500." ment that has been heretofore set out as Plaintiffs claim that it was in reliance alone coming from Edward Russell & Co, to the upon this information obtained from this plaintiffs, and upon which they claimed to mercantile agency that they sent the goods have given the credit to Mr. Adams.) Q. to Mr. Adams. About November 14th, | What did you do with that statement? plaintiffs received a circular letter from Mr. A. Put it on our records in the office. By Adams that he was in financial embarrass. Defendants' Counsel. That is read from a ment. Mr. Adams, in that circular letter, statement? A. No, sir; from a copy of the HAYN: "My financialembarrassment, which original." Defendants' counsel then moved has been known to many of my creditors, to strike out the testimony. This the If not all, for some time past, has at last court refused. The witness then testified berome much that, being unable to see any that he inade this statement in the shape hope or prospect of future success, I have of a report, and it went on the books of muru FN best I could those who have R. G. Dun & ('o. and on the records; that loaned me the capital with which I have he asked Adams for this statement of his dune business, by givingchattel mortgages financial standing, and Adams gave it, and as follows: To Herbert Bowen, trustee, knew the witness' business, and the pur$3,000,00; Sarah F. Adams, (iny mother,) poso in asking for a statement of his af$11,108,00; Laura 8. Adams, (ny sister,) | Tairs; that the commercial agency of Rus$1,506.00.* Mr. Adams then gives in this sell & Co. was of Boston, Mass., and that letter his version or explanation of how the statements made to R. G. Dun & Co. his embarrassinent occurred, and in which are furnished to Russell & Co. of Boston; he states a large part of this indebtedness but that he could not swear that this an accruing and outstanding prior to Jan- statement was transmitted to Russell & unry 1. 1X87. Immediately upon receipt Co., as he did not do the mailing. The of this circular letter, the plaintiffs tele contention of defendants' counsel here is graphed Mr. Beaumont, their attorney in that "it was evidence of a statement, the Detroit, to rescind the enle to Adams & Co. original of which was not in court, nor upon the ground that the statements up- any evidence introduced that it had been on which they relied in making the sale lost; and the evidence of this statement is were untrue, and to bring replevin for the obtained from an alleged copy, without gooris.

proof as to who made the copy, or as to The plaintiffs, to make their case on the its correctness, further than from Pungs' trial in the court below. produced Mr. W. | memory after reading the alleged copy in ( l'ungu, who testified that he was re- court two years after it was taken. Nor porter for R. G. Dun & Co., whose busic is there any evidence that the original nens is reporting the standing and credit statement, or a correct copy thereof, was of nierchants throughout thecity and other ever furnished to Russell & Co., of Boston, places; that there are neveral branches of and by them to plaintiffs. Under such cirR. (. Dun & ('o.; It is Dun, Wyman & Co. cumstances, the original statement, if any in ('nnnda, and Russell & Co. in several was ever made, was the best evidence, staten pint; that on March 10, 1887, he vis. and, in the absence of any proof that the Ited Mr. E T. Adams for the purpose of original had been lost, the alleged copy gröfting a statement of his financial condi- was not adinissible without proof of its tion, and had a copy of thestatement with correctness by the clerk or person who him. Witness was then asked and permit made it; and that there is no evidence who tel to answer the following questions: | made the copy, or how many times it had * Q11ilon. Do you remember what the been copied." The witness, however, tessintrenent made by Mr. Adams was? An- tified: “I have a copy of it, and I will swer. I have a copy of it, and will swear swear that he inade it to me; and I rememthat he made it to me; and I remember ber, distinctiy, going to his store and getdiutinrily going to his store, and getting ting the statement." It was to this copy the wintment. Q. Can you refer to the that his attention was called, and from cops, and refresh your recollection in such which he was asked to refresh his recolleca way nn to remeinber what the statement tion. It did not matter whether it was a WAN? This was objected to by defend- copy of the statement, or the one he took anin' rounnel as incompetent and imma. at the time he made the visit to Adams to terial, and the objection overruled. Wit- get the information. He could use either non answered:) A. Can't remember the to refresh his recollection. The only quesfigurrs, but I remember going to the store. | tion is, did it refresh his recollection so that Q By refreshing your recollection from the he could, with the aid of the paper, state Nintoinent, can you say what the figures what Adams told him? The original paWere, and what the result of the rtatement per upon which he took down the stateWON? This was objected to on the ground ment made by Adams would not have been that the statement was not in court.) By evidence, of itself, of the facts therein statthe ('ourt. If you have any paper or mem- ed; and the witness had as good right to orandum from which you can refresh your refresh his recollection from the copy as he mrrollertion as to what thestatement was. would have had to refresh it from the A. In my hand I have a copy of it.-acopy original. Mr. Pungs says he could not reof the statement made by him to me. Q. | member the figures, but could remember Refrıb your recollection. Can you state that he went there and got the statement, wbat the statement was? A. Yes, by and the paper he held was a copy of it. reading it; yes, sir. Q. What was his He was permitted to read from the copy statement? (This was also objected to on held in his hand. As we have said, the

ne made this report to Polo Dun & Co: der the circumstances, had a right to re

copy could not be used in evidence; and volved less than $100. This is not true. it did not appear in the case that the wit- The affidavit, writ, and declaration all alness, after having refreshed his recollec- lege the value at $115.50; and the evidence tion from the paper, was able to state tended to show the value of the whole what Mr. Adans told him, and from which goods at that amount. The plaintiffs, unhe R. G. The effect of the evidence by read- scind . The ing from the paper was the same as though defendants had no greater rights in them the paper was put in evidence. It was, than would E. T. Adams had the writ therefore, but hearsay, and wholly incom- been brought against him. If the whole petent. Fowler v. Hoffman, 31 Mich. 215; goods had been found, no question could Cameron v. Blackman, 39 Mich. 108; Fol- have arisen about who was entitled to the son v. Log-Driving Co., 41 Wis. 607; Com. costs of the suit, as the value was above v. Ford, 130 Mass. 64; Huff v. Bennett, 6 $100. The circumstances were such as jusN. Y. 337; Howland v. Willetts, 5 Sandf. tified the court, under this statute, in 219; Railroad Co. v. Adler, 56 111.344; Mead awarding the costs to the plaintiff. For v. McGraw, 19 Ohio St. 55.

the error pointed out the judgment must It is also contended that the plaintiff be reversed, with costs, and new trial orwas not entitled to introduce any evidence dered. under the declaration, for the reason that the declaration alleged that the goods CAAMPLIN, C. J., and MORSE, J., conwere sold to E. T. Adams & Co. The dec- curred. laration is in the usual form in replevin; but, after describing the goods, it is al- GRANT, J. I agree with my brethren leged: “Being an invoice of goods sold on that the court erred in permitting witness or about June 1, 1887, by the plaintiffs Pungs to read to the jury the copy of the hereinafter described to Edward T. Ad- statement made by Adams to himself. The ams & Co., of Detroit, Mich.” This is mere copy was not admissible in evidence, bedescription, and in no way affected the cause the loss of the original had not been right of the plaintiffs to proceed as upon shown. The witness had no recollection a rescission of sale.

of the particulars of the statement, and It is also claimed that the court should could not testify to them except by readhave directed judgment for the defendants ing what he took down at the time. If for costs. The writ was directed to Mr. the witness had produced the original Bowen, as trustee, and Sarah F. Adams statement, and had sworn that he took and Laura S. Adams. They had gone into down correctly, at the time, what Adams possession under these chattel mortgages, had told him, but that he could not reand the officer executing the writ was un- member it, and could only tell it by readable to find all the goods described in the ing the statement, I think the statement affidavit and writ. An inventory and ap- would have been admissible. In such praisal was made of the goods actually case, unless the statement can be admitreplevied and turned over to the plaintiffs' ted, or the witness allowed to read it, the firm, from which it appears that the value testimony must be excluded, because the of such part was only $64.70. The writ and witness has no independent recollection of affidavit alleged the value of the whole what was said. If, at the time a stategoods at the sum of $115.50. No evidence ment is made, particularly where it inis given as to the value of the goods de- volves figures, a person makes a memoscribed in the writ and not found, except randum of those figures, he would hardly such as may be inferred from the fact that be entitled to credence if he should swear E.T. Adams & Co. had purchased the iden- that he recollected the figures independenttical goods about a month previous, and ly of the memorandum. The rule that he had agreed to pay therefor the sum of may examine the memorandum, and then $115.50. Section 8964, How. St., provides must swear that he had a recollection of that “in the following cases, if the plain- them independent of the memorandum, tiif recover judgment by default upon con- before he can testify to them, is not, in my fession, verdict, demurrer, or otherwise, in judgment, founded upon reason or sound any action or proceeding at law, he shall policy. To exclude the statement is to exrecover his costs;

(4) in all ac- clude the most reliable evidence, and retions of replevin, and in all actions for sults either in excluding the evidence altothe recovery of any debt or damages, or gether, or in placing it before the jury in for the recovery of penalties or forfeitures, such a way as to weaken, if not destroy, in all cases where the court has exclusive its value. or concurrent jurisdiction.” The facts of this case took it out of the rule laid down CAHILL, J., concurred with GRANT, J. in Kittridge v. Miller, 45 Mich. 478, 8 N. W. Rep. 94. The action was replevin for a

(80 Mich. 427) fox-skin. Mr. Justice CAMPBELL said:

KINGMAN V. SINCLAIR. “This case, which involved only one dollar and a half, was brought in the circuit

(Supreme Court of Michigan. May 2, 1890.) court, and not before a justice. While the

MORTGAGES-STATUTE OF LIMITATIONS-DISCHARGR former may have jurisdiction, it certainly

FROM RECORD. ought not to have it, and probably was A court of equity will, without proof of actnot intended to have it." Chief Justice

ual payment, discharge from record a mortgage, MARSTON said: “I am also of opinion that

barred by the statute of limitations, which was the circuit court had no jurisdiction of the

given before complainant's purchase of the land

covered by it, by one who then owred an equitable case, because of the amount involved there.

interest therein, and of which complainant had no in." It is said that the present case in- actual knowledge.


Appeal from circuit court, Ottawa coun- swer as if she had demurred. Proofs were to. In chancery; DAN J. ARNOLD, Judge. taken in open court before Hon. DAN J.

Ward & Ward, for appellant. Chas. E. ARNOLD, circuit judge. No evidence was Soule, for appellee.

offered of actual payment of the mortgage, or any part of it,

principal or interest; CAHILL, J. This case involves the ques- nor was there any evidence that any suit tlon whether a court of equity will compelor proceeding had at any time been comthe discharge from the record of a mort- menced to foreclose the same, and a decree gage against which the statute of limita- was rendered in favor of the complainant. tions has run without requiriog proof of Defendant appealed. The claim made by the actual payment of the debt. The facts defendant is that, when complainant are as follows: In 1863 complainant's seeks the aid

of a court of equity, she must husband boughtan 80-acrefarm in Ottawa be willing and ready to do equity; that county, and moved upon it with his fami- the moral obligation to pay her debt rely. Before his death he conveyed it to mains as strong after the running of the complainant, who continued to reside on statute of limitations as before, and calls It down to 1885, a period of 22 years. She upon her to pay the debt; that equity leaned it to a tenant for two years longer, will not and ought not to compel the disand so was in the unquestioned possession charge of this mortgage without actual and ownership of the property for 24 years payment. But this doctrine, if correct, before filing her bill. Desiring to sell the applies only when complainant personally property, complainant, in 1887, procured owes the debt which the mortgage was an abstract of the title, and for the first given to secure. Booth v. Hoskins, 17 time learned that there was an undis- Pac. Rep. 220. This mortgage was given charged mortgage against the farm given by some former owner of an equitable inMarch 11, 1834, by Franklin Nichols, who, terest, and complainant says she never

, at that time, owned the equitable title to knew of it until 1887. She could not have the land by virtue of a certificate of pur- bought the land subject to it in such a chase issued by the state of Michigan to way as to make her personally bound to him. The inortgage was given to Benja- pay it legally or morally. It was onco min Allyn for $113.66, due one year after a lien upon ber land; it was never a claim date, with interest at 10 per cent. No pay- against her. What she seeks is to have ment was ever indorsed on this mort- this lien, which once existed in fact, and gage, or on the note with it. Benjamin still exists of record, as a cloud on her tiAllyn, the mortgagee, died testate, in 1859, tle, removed. It appears from the testileaving his estate to defendant, Mrs. Sin- mony that this mortgage is not a mere clair, who was also executrix of his will. fancied cloud upon the complainant's title; In June, 1897, the complainant applied to that she has sold the land, but that the Mrs. Sinclair for a discharge of this mort- purchaser insisted upon keeping back a gage, claiming that it was a cloud upon part of the purchase money until this apher title, and prevented her making a sale parent mortgage is released. If the deof it. She offered to pay the expenses offendant, in her capacity as executrix, did making a discharge, but Mrs. Sinclair re- not feel authorized to discharge this mortfused to discharge the mortgage without gage, and had based her defense wholly payment. In June, 1888, cuinplainant upon that position, disclaiming any right filed her bil1 in the Ottawa circuit court to or interest in the mortgage so far as it in chancery, to compel the discharge of constituted a lien upon the complainant's this mortgage. The bill sets up the fore- land, the court could very properly have going facts, and prays that defendant and required the complainant to prosecute the exerutrix may be required, by the order sust at her own expense. "

How. St. 8963. and decree of the court, to execute and de- But this the defendant did not do. She deliver to complainant for record a discharge fended upon the merits, claiming that the of sald mortgage, thereby clearing the same complainant was not entitled to the relief from the record of the title to her said prayed for, and we think the decree below farm, and that, until such discharge shall should be affirmed, with costs. The other be executed and delivered, a certified copy justices concurred. of the decree of this court may be recorded and stand in lieu thereof, and that com

(80 Mich. 489) plainant may recorer her costs." The de

FEIERTAG v. FEIERTAG. tendant appeared, and answered, admitting the giving of the mortgage; that Ben

(Supreme Court of Michigan. May 2, 1890.) jamin Allyn was dead; that defendant ASSUMPSIT-EVIDEXCE-BILL OF PARTICULARS. was executrix; and that, so far as her 1. During all the time covered by the declaraknowledge of the matter extends, she tion, plaintiff was of age, and was living with deknows of no payments on bald mortgage,

fendant, her step-mother, and plaintiff was enor sults or proceedings to foreclose the

gaged in dress-making, and defendant received rame. She admitted that she refused to

her earnings. The only disputed questions of fact

were the amount of her earnings, the agreement discharge the mortgage without com pen- under which defendant received them, and certain sation, bernuse she knew said mortgage settlements. Held, that these questions were had not been paid; claims that the bill is properly submitted to the jury, inconsistent and contradictory in stating

2. Where a declaration is amended so as to inthat the mortgage was both paid and

clude all that could be set out in a bill of partiooutlawed; and says that, if complainant ulars, there is no necessity for amending the bill

, would do justice and equity in the prem

of particulars filed under the original declaration. 1ses, she would pay said mortgage; denies

Error to circuit court, Wayne county; that complainant is entitled to any relief; HENRY N. BREVOORT, Judge. and prays the same advantage of her an- Action by Minnie Feiertag against Julia

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