DEVISE

in form of a deed: DEEDS, 4,-370.

DISCHARGE

for defective complaint: CRIMINAL LAW, 4,-543.

of defendant in foreclosure: MORTGAGE OF LANDS, 24,-44.

of one sentenced to Ionia Reformatory: CRIMINAL LAW, 10,-173. penalty for refusal: MORTGAGE OF LANDS, 13, 14,—57.

DISCONTINUANCE.

stipulation for: REPLEVIN, 4, 5,-251.

DISCRETION

as to amendments to bill in EQUITY, 22,-29.

as to costs in appeal cases: Costs, 4,-381.

of guardian: GUARDIAN AND WARD, 2, 3,-265.

of highway commissioners, building bridges: HIGHWAYS, 1,-340. of posecuting attorneys to stop prosecutions: CRIMINAL LAW, 1,— 543.

DISCOVERY

sought against corporation, practice: EQUITY, 4,—543. DIVORCE.

1. Where a wife, suing for a divorce, swears positively that her husband does not reside in this State but in a specified foreign locality, it is enough to support an order of publication. Pettiford v. Zvellner, 358.

2. A divorce granted upon an order of publication, issued by a circuit court commissioner on an affidavit based upon information and belief, was sustained in a collateral proceeding involving the validity of a later marriage and the consequent right to property. Id. 3. It seems that the affidavit for an order of publication in divorce is sufficient if it tends to establish a foundation for the order, and if the oflicer to whom it is presented finds enough in it to satisfy his judgment; and his decision cannot be set aside, in a collateral proceeding, for defects in the proofs submitted to him therefor. Id. 4. Affidavits of the publication of orders for defendant's appearance in a divorce proceeding are sufficient to give jurisdiction if they state positively the fact of publication, and if the affiant swears that he is employed in the office of the newspaper in which the order was published, and knew well the facts stated in the affidavit. It is unimportant that he does not describe himself as clerk, if it appears that he is entrusted with the duty of making affidavits of publication. Id.

5. Proceedings after a decree of divorce do not touch the right to adjudicate, and cannot be reviewed in a collateral proceeding Id. 6. A wife went to the house of her parents to be confined, and did so against the objection of her husband, who, however, was living with his own parents, and whose household arrangements were not, therefore, interfered with. When she was confined she sent word to him, but he did not go to see her at first, and when he did go in reply to a reproachful letter from her, he told her he had received a letter from her full of lies, and had come to warn her that if she was not back before the issue of the next week's paper he should advertise her; he also intimated that the child was her father's and not his own, saying that if it had been it would have been born at home, but now it had been delivered where it belonged. Held, a case of extreme and wanton cruelty entitling the wife to a divorce. Palmer v. Palmer, 150.

7. Execution cannot be awarded, under Act 44 of 1877, to enforce the collection of temporary alimony. Id.

DRAINS.

1. Where a ditch dug as a neighborhood drain has remained open as a watercourse for some years, it ought to be governed by the rules that apply to other water-courses. Freeman v. Weeks, 335. 2. Proceedings to lay out a drain were quashed because the record did not show that notice had been given that application would be made to the probate judge for the appointment of the commissioners to determine the necessity for constructing the ditch and to assess the consequent damages. Lampson v. Ingham Drain Com'r, 3. Objections to calling a jury in proceedings to extend a ditch are rendered immaterial by the abandonment of the purpose to extend it across the lands of those who refused to release damages. Mabee c. Miner, 568.

150.

4. One who has consented to the extension of a ditch which does not cross his land, and has promised to dig his part and tried to let a job therefor, cannot, after partial construction thereof and consequent benefit to himself, complain of being assessed for it. Id.

5. In an action for obstructing a ditch it is unimportant whether the ditch had been legally laid out, if the defendant had consented to it; it is also unimportant whether the parties originally agreed on the line of the ditch, if they acquiesced in what was done. Freeman v. Weeks, 335.

DUE BILL.

variance from: BILL OF PARTICULARS, 1,-436. DURESS.

1. Duress exists where one is induced, by another's unlawful act, to make a contract or perform some act under circumstances which prevent his exercising free will. It is either of the person or the goods of the party constrained. Hack'ey v. Headley, 569.

2. Duress of the person is by imprisonment, threats, or an exhibition of apparently irresistible force. Id.

Id.

3. Duress of goods may exist when one is compelled to submit to an illegal exaction in order to obtain them from one who has them but refuses to surrender them unless the exaction is endured. 4. There is no duress where the act threatened is nothing which the party has not a legal right to perform. Id.

5. Refusal, on demand, to pay a debt that is due, thereby forcing the creditor to receipt in full for ouly a partial payment, does not constitute duress if the debtor had done nothing unlawful to cause the financial embarrassment which compelled him to submit to the extortion. Id.

effort to obtain CONFESSION, 1,-284. DWELLING HOUSE

1. Getting into the back kitchen of an occupied house through an open door when no one is in the room, and boarding up the rest of the house on failing to secure an entrance thereto does not estab lish such a constructive possession of the premises as will justify committing assault and battery upon the occupants if they attempt to remove obstructions. Soule v. Hough, 418.

2. A house is an entirety so long as it is occupied as such by a tenant, and the possession, by an adverse party, of a single room cannot be held a possession of the building to the exclusion of the tenant. Id.

EJECTMENT: When applies, 1; Right of, 2, 3; Election of Defendants, 4; Parties, 5, 6; Tar Deed as Defense, 7; Case for Jury, 8; Findings and Judgment, 9-11.

1. Ejectment under Michigan statutes is substantially a real action and is a proceeding to try titles as well as to determine who has the right of possession. It applies where the remedy formerly was a

writ of right. It is the only action for determining titles to land. Mich. Cent. R. R. Co. v. McNaughton, 87.

2. The right of action in ejectment is not lost by conveying the premises after suit is brought; and a plea of such conveyance puis dar rein continuance is demurrable generally. Id.

3. An action of ejectment is not barred after ten years' occupancy by defendant if it does not appear that his possession was adverse to the plaintiff. Perkins v. Nugent, 156.

4. Comp. L. § 6230, in requiring that a plaintiff in ejectment against several defendants claiming under different sources of title shall elect against which he will proceed, does not apply where the action is against one claimant and those in possession under him and where the same defense is common to all. Campau v. Campau, 367.

5. Where the validity of a tax-title held by a stranger to the case, is an incidental question, as where it is relied on in defense to an action of ejectment as paramount title in a third person, it seems that the owner should be impleaded. Jeffery v. Hursh, 59. 6. Where an action of ejectment rests on the title obtained under a decree in foreclosure against a man and his wife and the wife remains in possession claiming title in her own right, she should be made a defendant in ejectment and it should be found whether she was so brought into the foreclosure suit as to be bound by the decree therein. Sayles v. Curtis, 279.

7. A tax-deed giving a prima facie title constitutes at law a perfect defense to an action of ejectment. Conn. Mut. L. Ins. Co. v. Bulte, 113.

8. An action of ejectment involved the questions of title by inheritance in the plaintiffs, or of title by conveyance, tax-deed and absolute possession in the defendant. The trial judge charged the jury simply that defendant was entitled to their verdict and did not specify on what grounds. Held that judgment should be reversed and a new trial ordered as for mistrial. Demill v. Moffat, 410. 9. In an action of ejectment a finding tracing title to two persons one of whom conveyed, as sole heir, to the other, is defective if there is no finding that he was sole heir or how he became so. Sayles v. Curtis, 279. 10. Comp. L. § 6232, in providing that if the title of plaintiff in ejectment expires after the commencement of the suit and before trial, he is still entitled to judgment for his damages, contemplates cases in which terms and rights expire, and not to cases where the right or title is simply transferred. Mich. Cent. R. R. Co. v. McNaugh ton, 87.

11. Judgment in ejectment relates back to the beginning of the suit. Id. for cemetery: CEMETERIES, 1,-257.

who can rely on tax-titles: TAXATION, 14, 15,-59.

tax title used in defense to: TAXATION, 16.-113.

ELECTION

among defendants in EJECTMENT, 4.-367.

by stockholders to waive lease: EQUITY, 7,-493

ELECTIONS.

mandamus to issue certificate denied: MANDAMUS, 4,-160. ENDORSEMENT. See INDORSEMENT.

EQUITY: Province, 1, 2; Pleading, 3-21; Practice, 22-29.

1. Equity relieves against forfeiture, when it would be oppressive or fraudulent not to. Gram v. Wasey, 223.

2. Whether a bill in equity can lie to protect and enforce the lien of attachment-Q. Van Norman v. Jackson Circuit Judge, 204.

3. A bill in equity, if not signed in person or with the responsible

signature of counsel, appended by himself or by some authorized representative, may be stricken from the files. A printed signature is not good, Eceland v. Stephenson, 394.

4. The answer of a corporation to a bill in equity is not required to be sworn to, but is attested by the corporate seal. If a discovery is sought, individual corporators may be sworn, but they must be named as defendants in the bill. Beecher v. Anderson, 543. 5. Where complainant's own showing proves that a person impleaded as defendant is not a proper party he will be relieved from liability even though he did not appear and defend. Pool v. Horton, 404. 6. Two of the three directors of a corporation allowed a mining lease thereto to be forfeited, and then took another for their own benefit. Two of the stockholders filed a bill against the two directors and the corporation to compel the directors to assign the lease to the corporation. Held, on demurrer that the remaining stockholders should have been brought in as complainants and the lessor as a joint defendant. Bengley v. Wheeler, 493.

7. Where a bill is filed by stockholders to compel the assignment to the corporation of a lease which had never belonged to it, all the stockholders should be made complainants because the corporation may elect to waive its right to the lease as well as to demand it and the election cannot be made unless all the stockholders are joined. Id. 8. Where a bill is filed by stockholders for the benefit of the corporation, the bill should state any reasons that exist for omitting to join all the stockholders as complainants in the bill. Id.

9. A bill to compel lessees to assign their lease should bring in the lessor as joint defendant as it is to be presumed that the landlord is interested in being heard as to who shall be his tenant. Id. 10. Any bill whose main purpose is to obtain a new hearing of a controversy already decided, either on questions of law or on the same or additional testimony, is a bill of review or in the nature of a bill of review, even though it involves matters of supplement or revivor or other additional elements. Eveland v. Stephenson, 394. 11. E. filed a bill to assure his title to land recovered from him by H. in a previous suit; he asked also that the former decree be declared void, or that a rehearing be allowed on the grounds that false testimony had been given in the previous suit; that after the decree both parties had agreed to a settlement, but that H. had repudiated the bargain when it was too late for E. to appeal; and that there was newly discovered evidence. Held, that this was merely a bill for a rehearing, and that not being sworn to, it could not stand as a petition for a rehearing under Chancery Rule 81. Id. 12. A bill to enforce an agreement involving an interest in land is demurrable if it appears that the agreement is void under the statute of frauds; and even if it does not appear, the defect is involved in the case. But the defense may be lost by not insisting on it. Id. 13. A bill in equity is not necessary to reach a reversion of land in which another person has held a life estate which has run out. Id. 14. One who files a bill to have a deed given by him construed as a mortgage, has the burden of proving beyond reasonable doubt that this was actually meant to be its effect. Tilden v. Streeter, 533. 15. A complainant seeking to have his deed construed as a mortgage is confined to the ground on which he filed his bill and cannot afterward claim that he was unduly influenced to execute the paper as a deed. Id.

16. The fact of relationship between the parties to a bill filed to have a deed construed as a mortgage has no force except as it is pertinent to the case and will aid in proving or disproving it. Id.

17. A bill to have a deed construed as a mortgage cannot be sustained unless there is convincing proof in complainant's favor, even though defendant's showing is such as to establish no claim on the confidence of the court. Id.

18. A bill to correct a deed so as to make the conveyance subject to mortgages, and excepting a crop from its operation, cannot be maintained except upon a very convincing preponderance of evidence in favor of complainant, showing that it had been so agreed between the parties. Reynolds v. Campbell, 529.

19. Interpleading cannot be ordered unless the claims threatening complainant negative each other; if one cannot be legally enforced without implying the other's invalidity there is nothing to be settled by interpleader. Moore v. Barnheisel, 500. 20. The attorney for several creditors having obtained from the debtor an assignment of certain policies of insurance then payable to him, thereupon executed a paper reciting that he was to pay from the proceeds the claims held by him and pay over the residue to the attorneys for certain other creditors. Before this was done he was garnished by still other creditors, but the attorneys to whom he was to pay the residue insisted that their claim thereto could not be affected by the garnishment. Held, that he could maintain a bill of interpleader against them and the other creditors to determine which was entitled to the fund. Id.

21. A demurrer to a bill admits the complainant's case for the purpose of that issue only, and not for the purpose of establishing a right to relief which the proofs might not sustain if defendant should be allowed to answer after his demurrer is overruled. Cook v. Detroit & Milwaukee R. R. Co., 453.

22. Amendments to a bill in equity are discretionary with the court so long as they are not allowed to prejudice the substantial rights of the defendant. They should not be allowed at the hearing, however, if after amendment the case will be defective on the proofs. Church v. Holcomb, 29.

23. Where a bill in equity filed by the holder of mortgages supposed to be void, claimed an equitable lien in the nature of a mortgage, and the record showed that the parties had gone fully into their equities; that the proofs were all in; that there was no conflict on the facts constituting the complainant's case, and that the case that would have been made on a foreclosure bill was fully before the court, the record was remanded by the appellate court with leave to so amend the bill as to pray a foreclosure of the mortgages in case they were adjudged valid. Id.

24 Where a chancery record is remanded with leave to amend the bill without prejudice to any proceedings, the complainant can be placed in no better position as to costs than if the bill had been dismissed without prejudice, and must pay all costs to the time decree is entered on the amended bill. Id.

25. Due diligence in making service of a chancery subpoena upon a defendant who cannot be found is not exercised unless the effort to serve it is continued so long as service can lawfully be made. Soule v. Hough, 418.

26. Where a defendant brought in by publication, petitions to be heard, his right to be admitted to answer the complainant's bill on payment of costs (Comp. L., § 5127) is absolute: his equities cannot be decided on affidavits opposing his petition, or in any way except in a hearing on the merits. Mc Donald v. McDonald, 44. 27. A receiver cannot be appointed as a preliminary to filing a bill and beginning suit, and without any notice to parties interested in the property placed in his hands. Jones v. Schall, 379.