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Supreme Court of Michigan. June 27, 1886. 1. BENEVOLENT SOCIETIES–Corporate Privileges under Laws of Michigan-How Amenable to Outside Bodies.-Whatever advantages may exist in affiliation with other associations, the rights of Michigan corpore ations must be governed by the laws of Michigan, and corporate privileges cannot be destroyed in violation of them.

2. Disfranchisement of Member-Delegation of Power by Society-Limitation.--No corporation can allow its members to be disfranchised by another body for any cause, or in any manner, which it could not have adopted for itself in the premises.

3. —. Disfranchised Member-Remedy in Case of Illegal Disfranchisement.-Where a corporator is deprived of valuable corporate rights in a beneficial society by interference, to which he has not assented, by an outside body, whose powers in the premises are not derived from the incorporation laws of the State, he can call upon bis own corporation to do him justice.

4. — By-Laws-Must be Reasonable.-All bylaws must be reasonable, and if not so, are void.

5. — Libeling Fellow-Member-In What Case Punishable.—The discipline to which a member of a beneficial society is liable for the offense of libeling another member is not ever to be exerted upon vague charges of libeling, and only in cases where the libel is without any reasonable cause.

The ap

given in the complaint. The complaint was entirely no details whatever of the alleged defamation, and was not made by the party injured, as it should have been. It was, however, tried before the proper body in the corporation to which Allnutt belonged, and he was unanimously acquitted. The person referred to, appears to be one John H. Lays, who occupies a high office in the subsidiary high court, and who turns out to have been charged with dishonesty and immoralty. The Peninsular Court, whcse right to do wo) we have not found in the rules, undertook to appeal, making Court City of the Straits respondent in the appeal. The latter appeared before the arbitration board, represented by relator and another person, who, by what was called a “demurrer," but which was in fact what in law would usually be called an "answer," and was entirely appropriate, raised several objections, a part of which went to the competency of the members of the board of arbitration, and were challenges for cause. The board overruled the other objections, and failed to consider the challenges. pellee refused to appear further, and the board proceeded to dispose of the matter without the production of any of the letters or other articles claimed to be libelous, and without any proof of contents, and undertook to reverse the acquittal and sentenced Allnut to a fine of $15, and to two years' suspension. This being communicated to the inferior court, the second respondent here, he was required to desist from any further action as a member, as it is admitted by bis local society, which regarded the action of the subsidiary high court as illegal, but it did not feel justified in defying it. We are now asked to reinstate him.

The Detroit society being a corporation under our laws, the rights of its members are entitled. in a proper case, to protection. The question discussed relate to the propriety of our interference in this case.

Under our statutes, the corporation in question has the right and duty of determining the conditions of membership. This it has done by its bylaws, and we find nothing in them which makes such membership subject to the action of any outside body. The subsidiary high court is not an incorporated body, under the laws of this state. One of the objections raised to its action here is that the rules of the order require it to become incorporated. We shall not undertake to discuss that question, but there is evidently much reason for it, as it would be contrary to the general legal rules to allow membership in a corporation to depend on the will or action of an unincorporated outside society. Whatever advantages may exist in affiliation with other associations, the rights of Michigan corporotions must be governed by the laws of Michigan, and corporate privileges cannot be destroyed in violation of them. If there are rights independent of those of corporators, they stand on a footing of their own. If members see fit to subject themselves voluntarily to arbitration it would not be desirable for this court to under


James H. Pound, for relator. Case & Carpenter and T. C. Prosser, for respondents.

CAMPBELL, C. J. delivered the opinion of the court.

Relator complains that he has been unlawfully suspended from membership in court City of the Straits, which is an incorporated society of the order of Foresters, organized originally under affiliation with the general system of societies of that brotherhood, and obtaining corporate powers under the general statute for benevolent associations. He asks a mandamus to restore him, and the subsidiary high court impleaded as the superior body under whose order the alleged wrong was done. It appears from the showing on both sides that Forest r Associations, which originated in England several years ago, act together, by means of local lodges, usually called “Courts," all of which are in some measure subordir to the subsidiary high court, which appears to be a body of delegates which has, among other things, a court of tinal arbitration to which appeals lie from lower courts.

Allnutt, the relator, who is a member of the City of the Straits Court, was charged, by complaint of another body, (the Peninsular,) with defaming a member of the latter body, whose name is not

take to review the action of extrajudicial bodies, affiliation shown here the widest possible effect, and intermeddle with their action in the course and assuming-what all parties have assumed, for of delegated power. But where a corporator is the purposes of this proceeding—that the corpordeprived of valuable corporate rights by interfer ation has subjected itself and its members to the ence to which he has not assented, he can call up complete system of the order, the sentence given on his own corporation to do him justice. In the is null and void, and the prosecution itself entirely present case, if relator is shut out from his cor unauthorized. Had the proceedings been properly porate rights, he loses privileges of considerable instituted, and the sentence competent, we should pecuniary value: as benefits and support during

have declined to scrutinize what might be treated sickness, and other similar aid. If these were en as resting on a jurisdiction by consent. But these tirely distinct from his social privileges, the lat proceedings disregarded all correct principles, ter would probably be left to the social forum. and we think it proper to require relator's restorBut whether joint or distinct, we can only look at

ation, and, for this purpose, the writ must go to the case as one where the right are of tangible

the defendant corporation, without costs, as we value, and determine them accordingly. We shall

are satisfied that body has meant no wrong. not, therefore, discuss the mutual relations of So far as the other respondent is concerned, we these bodies on any other basis, and we shall con

do not propose to review its action directly, besider the action had against Allnutt merely to see

cause it is not a body known to the law, and the whether it is such that, by his tacit recognition of

action is void according to its own code. It is dethe usages of the order, he can be held bound by

nied, on its own behalf, that this body is a corporthe proceedings complained of.

ation, and, that, being so, the appearance of Mr.

Lays amounts to nothing, and the Detroit corpor: It may be fairly held that no corporation can

ation must be considered the only respondent allow its members to be disfranchised for any

whom we can recognize as before us. We have cause, or in any manner, which it could not have adopted itself. All by-laws must be reasonable,

looked into the proceedings, because pertinent to and if not so, they are void. This order professes

the corporate action of the legal respondent, and

have considered the arguments so ably presented to be dependent for its methods and usages on

iu behalf of the high court. It is much to be rethose of an English corporation, which must be

gretted that so much personal bitterness has govsupposed subject to this same common law rule of reasonableness. All by-laws and regulations

erned parties who should have been impartial. No must be construed, therefore, on that principle;

association can hold together if its authorities are and so construed, the proceedings here are very

not disposed to respect the rights of members,

fairly and in accordance with impartial justice. singular.

The writ must issue, as above suggested. Assuming that the society to which relator be

SHERWOOD and MORSE, JJ., concurred; CHAMlongs has accepted, as it seems to have done, the rule that a member may be disciplined for libel of

PLIN, J., dissented. another member, yet the English rules expressly, and the American rules by the only implication = which is reasonable, restrict the punishment to cases where the libel is without any reasonable WEEKLY DIGEST OF RECENT CASES. cause. It is well-settled common law that the mere fact of defamation of another member is no


1, 11, 12, 22 cause of discipline. Any other doctrine would be CONNECTICUT, monstrous, and it cannot be held that a corpora ILLINOIS,

6, 22 tion in this State shall deprive any member of his



4, 10, 18, 19, 23, 24 rights unless he is himself grossly in fault. Nei

NEBRASKA, ther can any one be called on to meet vague and

NEVADA, uncertain charges. The charge here was NEW YORK,

5, 13, 15, 23, 24 charge at all, and the conviction itself does not Оно, show who was defamed, or by what means.


2, 16 Passing by other defects, which are, however,

VERMONT, very serious, the rules of the order, assuming them


17 to be valid, limit fines in this class of cases to five dollars. Article 21. The American rules differ

1. BAIL-Recognizance-Forfeiture.--In scire facias in this from the English; but neither code allows

against bail on a forfeited recognizance, which is more than one form of punishment to be imposed. a civil proceeding, the issue presented is required Article 24. Fine, suspension, or expulsion may to be decided by the court (Code, $$ 4867-68); and be imposed, but there is nothing in any of the if any issue can arise which would be proper for rules allowing a double punishment. In the ab

the determination of a jury, the failure to demand

it is a waiver of the right. When the principal sence of direct provisions to the contrary, it is

defendant is required by the court to enter into a well settled that power to give an alternative sen

new undertaking of bail, because of the insuffitence does not authorize a double one, and that ciency of the first, and is ordered into custody for any such sentence is void. Giving to the peculiar his failure to do so (Code, $ 4864), the sureties are






discharged for any future default. When the record does not show the evidence on which the decision of the court was founded, this court will presume that it justified the decision. State v.

Posey, S. C. Ala. 2. BANKS— Savings Banks- Assignment for the Benefit of Creditors— Stockholders-Assessments

- Notice to Stockholders.—Where a petition is filed by the assignee of a savings bank for the benefit of creditors, against the stockholders, for unpaid assessments, and the court, in accordance with the petition, orders an assessment, it is error to hold that, when defendants deny liability to pay assessments on other grounds than want of notice, they are not entitled to notice. When, in a petition filed by an assignee of a vings bank against the stockholders for unpaid assessments, the assignee has failed to give the notice specified in the decree, a verdict is properly rendered against the bank. Franklin Sav. Bank v. Fatzin

ger, S. C. Penn., March 8, 1886: 4 Atl. Rep. 912. 3. CONSTITUTIONAL LAW-Enactment of Laws

Right of Legislators to Seat-Evidence-Collateral Attack-Legislative Power— Act of May 17, 1886, for Government of Cities of First Class.Where the journal of each house of the general assembly shows that a law received the concurrence of the number of members required by the constitution for its adoption, and that it was publicly signed in the presence of each house by its presiding officer, as required by $ 17, art. 2, of the Constitution, its authenticity cannot be impeached by parol evidence that one or more of the members in either house, recorded as concurring in its adoption, had, prior thereto, been seated, upon the determination of a contested election, by less than a constitutional quorum, although the concurrence of such member or members was necessary to the number of votes required by the Constitution for the passage of the law. The members so seated are, at least, de facto members of the honse to which they belong, and the validity of the title by which they occupy their seats cannot be inquired into by the courts for the purpose of affecting the validity of laws enacted by the legislature in whicn they hold seats. The act of the general assembly passed May 17, 1886, entitled "An act to establish an efficient board of public affairs in cities of the first grade of the first-class,” (83 Ohio L. 173,) is within the legislative power conferred on the general assembly by § 1, art. 1, and the requirement of $ 6, art. 8, of the Constitution; and does not, by its provisions vesting the appointment of the board in the governor of the State, impair any of the undelegated powers which, by $20, art. 1, are declared to "remain with the people.”. Whether laws so enacted for the government of cities and villages are wise or unwise is left by the Constitution, to the wisdom of the legislature, and the courts have no power to hold them invalid, although they may differ with the legislature as to the policy of such laws. State, ex rel. v. Smith, S. C. Ohio, June 29, 1886:

7 N. East. Rep. 447. 4. CONTRACT– SettlementHow Regarded by Law

-Good Except in case of Fraud-Rescission-Essential Prerequisite, Surrender of Benefits-Receipt Signed on Faith of-Estoppel-Receipt Signed in Ignorance.-The law favors settlements of disputed matters by the parties without recourse to litigation; and, presuming that in such settlements the parties consulted their own interests, will not interfere except in the case of fraud

or mistake. When one of the parties to a settlement had to adjust matters in dispute between them desires to rescind such settlement on the ground of fraud, he must, before proceeding thereupon, surrender the benefits received by him under the terms agreed upon; otherwise he recognizes the settlement, and is bound by it. When a receipt has been signed by a party upon the faith of a statement made to him to the effect that certain outstanding matters had been settled, such receipt does not, upon discovery of the fallacy of such statement, estop him to maintain an action in the premises. A receipt signed in ignorance of a failure of the debtor to account for certain moneys concerned, does not prevent the signer from recovering such moneys. Hart v. Gould, S. C.

Mich., July 1, 1886: 28 N. W. Rep., 831. 5. CORPORATION-Sinking Fund Contract-Con

struction of Confiicting Provisions. The defendant corporation gave a first mortgage on its property and franchises, in which it was provided that $12,500 of the surplus of the net earnings, after paying interest on the bonds secured by the mort. gage should be paid semi-annually to the mortgage trustees, as a sinking fund for the redemption of the bonds. The moneys in this fund, with the accumulations of interest thereon, were to be invested in the purchase of these honds, if such purchase could be made at not exceeding ten per cent above par, the bonds so purchased to be indorsed as belonging to the sinking fund, and they were to "remain in force" and the interest thereon was to be continued to be paid as part of the capital of the sinking fund. In case the bonds could not be purchased at ten per cent above par, no further payment was to be made to the sinking fund until the price lowered to that point, when such payment of $12,500, semi-annually was to be resumed. Purchases of bonds were made until January, 1879, when they advanced in value beyond the limit imposed. But interest on the bonds held for the sinking fund continued to be paid. In this action, by a preferred stockholder of the corporation, to restrain this payment, held, that the interest payments to the sinking fund must continue until the maturity of the mortgage. Wilds v. St. Louis, etc. Co., N. Y. Ct. App., June 1,

1886, 5 East. Rep., 662. 6. MUNICIPAL CORPORATIONS — - Improvements

Special Assessments and Special TaxationAmount, How Det erminedFailure of Ordinance to Determiue Amount of Assessment-Description of Improvement in Ordinance- Where an improve. ment by municipal authorities is made by special assessment, the gross amount to be so raised is determined by commissioners appointed for that purpose, and not by ordinance, and is reviewable on appeal. 1 Starr & C. St. C. 24, art. 9, par. 140. But where the cost of a local improvement is to be raised, in whole or in part, by special taxation, the ordinance itself must either state the sum, or give data by which the commissioners can fix the amount; and when this amount is fixed in accord. ance with the ordinance, it is not reviewable. The failure of an ordinance authorizing a special as• sessment to determine the gross amount of such assessment is not ground for vacating the assess. ment; but such omission from an ordinance au. thorizing a local improvement by special taxation would be fatal. The requirement of the statute that the ordinance authorizing a local improve. ment shall specify the nature, character, locality and description of such improvement (1 Starr & C. St. c. 24, art. 9, par. 135) is mandatory. An in.

sufficiency of description, such as the court finds to have existed in this case is fatal. City of Sterling v. Galt, s. C. Ill., May 15, 1886: 7 N. East. R.,

471. 7. COURTS-County Court-Justice of the Peace

Jurisdiction-Amount.-Under the provisions of the Constitution, and the statute enacted pursuant thereto, county judges and justices of the peace have jurisdiction of actions, within the stated limits, as to amount for money had and received, brought to recover back a deposit, or money paid upon an agreement for the purchase and sale of land, where the defendant omits or refuses to perform his agreement to convey the same. Mushrush o. Devereaugh, S. C. Neb., July 6, 1886, 28 N.

W. Rep. 847. 8. Judges, Disqualification - Effect Nero

Trial-Gen. St. 2464. Act of judge, involving the exercise of judicial discretion, in a case where he is disqualified from acting, are not voidable only, but void. A judge who is disqualified from hearing a case, under Gen. St. 2464, cannot extend the time within which to make a motion for a new trial. Frevert v. Swift, S. C. Nev. July 8, 1886. 11

Pac. Rep. 273. 9. CRIMINAL LAW Complaint City Ordinance

11 Pac. 29Bavdy and Disorderly Houses Municipal Corporations, Jurisdiction of Police Court-Constitutional Law- Trial by Jury-Violation of City Ordinance-Constitution of Oregon. -In a prosecution for the violation of a city ordinance, where the words of the ordinance fix a penalty for “knowingly” committing the offense in question, and the complaint charged that the defendant “willfully and unlawfully” did the act charged, held, that the complaint was sufficient. Where a city, by its charter, has authority to suppress and prohibit bawdy-houses, and a general power to punish for violation of its ordinances, and the State is authorized by its constitution to create such municipal corporation without any limitation of such authority except the city's power of taxation, the police court of the city, has jurisdiction of an action charging a defendant with a violation of its ordinance prohibiting the keeping of bawdy-houses. The enforcement of a penalty for the violation of a city ordinance is not a criminal prosecution, within the meaning of the provision of the constitution on the subject of the right of trial by jury in criminal prosecutions, and it is not error in the police court to refuse a jury trial in such an action. Wong v. Astoria, s. C. Oreg., June 24, 1886. 11 Pac. Rep. 295. 10. DEED-Execution-Delivery-Destruction after Delivery by Grantor's Wife-Informal Conveyance of Real Property-Equitable Title- Statute of Limitations-Adverse Possession Verbal Sale Followed by Possession.-A deed executed and delivered, and then intrusted to the grantor to obtain his wife's signature, and by her destroyed, held, to pass the title of the grantor. An informal writing, signed by one of the heirs to an estate, certifying that, for a stated valuable consideration, she signs off to another of the heirs of said estate all her interest therein, creates in such other heir an equitable title to her interest in the estate. Proof of a verbal sale of the interest of one of the heirs to an estate to another of the heirs, followed by 20 years' adverse possession in such other heir, held, to create a sufficient title in the latter. Hyne v. Osborne, s. C. Mich., July 1, 1886. 28 N. W. 821.

11. EJECTMENT-Adverse Possession Judgment.

In a statutory action in the nature of ejecment, the suggestion of adverse possession and the erection of valuable improvement being found true, and the value of the improvements being assessed, or their excess above the rents, (Code, $$ 2051-54), the verdict should go further, and ascertain the value of the lands without the improvements; and being defective in this particular, the court may, during the term, set aside, and award a venire de novo; or, judgment being rendered on the defective verdict, it would be reversed on appeal. Judgment having been rendered on the defective verdict, and set aside, on motion, at a subsequent term, after which the cause was, for several terms, treated as a cause pending and undecided; the irregularity, if any, in setting it aside, is waived, and the irregular order can not be vacated on motion, as a void judgment or order may be. Coltart v.

Moore, S. C. Ala. 12. EVIDENCE. Written Instrument Landlord

and Tenant.-While a written contract can not be contradicted or varied by parol evidence, it is permissible, where the writing does not purport to set out the entire contract, to show by parol other stipulations not inconsistent with those expressed. A tenant having given his note or written obligation for the rent, specifying a certain number of bales of cotton, it is not permissible to show by parol that he also agreed to deliver certain quantities of cotton seed. The landlord suing in case for the conversion of his tenant's crop, whereby his statutory lien was lost, can not be allowed to prove "that it was a rule or custom he had made on his plantation that he should have all the cotton seed raised on the land by his tenants;' because one man can not establish a custom, and because such evidence contradicts the terms of the note for rent, which specifies that a certain number of bales of cotton should be delivered as rent. If the cotton was converted by the wrongful act of the tenant himself, co-operating with the other defendants, who had notice of the landlord's rights, a joint action for the wrongful act may be maintained against all of them; but, if the wrongful act of each were separate and distinct, a joint action can not be maintained against them. While the removal of the tenant's crop from the rented premises, without the consent of the landlord, and without paying the rent, is prima facie a wrongful act, tending to the destruction of the landlord's lien; yet it may be justified by proof of legal right or lawful excuse, as by showing that it was replevied by the tenant after attachment levied at the suit of the landlord, and after the expiration of the tenancy and the tenant's removal from the rented premises; but, if such replevy was made, not in good faith for the preservation of the cotton, but with the intention to waste and convert it, and the sureties on the bond had notice of such wrongful intent, they are liable for the conversion jointly with their principal. Povell v. Thompson, S. C.

Ala. 13. EXEMPTION-Findings of fact-Equitable Relief

- It is essential to the support of a judgment that the findings of fact should establish a legal right on the part of the successful party to relief granted, and when they do not, and there is nothing in the evidence to show such right, an exception to the legal conclusion of the court directing judg. ment raises the question whether upon all of the

facts found the party succeeding is entitled to the judgment directed. In an action brought to establish the title to, and recover the possession of real property. the plaintiff is not entitled to a judgment for equitable relief directing the defendant to deliver up for cancellation the deed under which he claims title, and the cancellation thereof, when it appears from the allegation of the complaint and the findings of fact that the plaintiff had a common remedy at law in an action of ejectment. Moores v. Townsend, N. Y. Ct. of Appls., June 1,

1886. 14. FIRE INSURANCE-Application- Agent-Broker --Proof of Loss-Fraudulent Misrepresentations - Inventory Made by Wife-Where an application for insurance against loss by fire was obtained by one not an agent of the defendant, but a broker doing the business under an arrangement with defendant's only-authorized agent, by whom it was sent to defendant; and the defendant returned it for additional information as to the ownership and occupation of the property to be insured; and the agent gave the application to the broker, with instructions to obtain the answers from the applicant; and the broker took the application away, and returned it with the answers written in his own handwriting, and not in accordance with the facts, although the broker at the time had full information as to the facts: held, that the act of the broker, under these circumstances, was the act of the agent, and the knowledge of the broker, no matter when obtained, if before the answers were given, was the knowledge of the defendant, and it was estopped from setting up such false answers in defense. It was the duty of the assured to supply the defendant with an honest inventory of the property damaged, and although he may employ his wife to make the inventory of household goods destroyed, if he makes oath to one thus made by his wife, containing false statements and fraudulent claims, without knowing of its false claim, and without scrutiny, he thereby adopts and makes the fraud his own, and cannot recover. Mullin v.

Vermont etc. Co., S. C. Vt., June 26, 1886. 15. FRAUD – Warehouseman Representing That

Building Fire-Proof:-When a warehouseman issues a circular to the public, intended as an advertisement, in which he describes his warehouse as fire-proof on the exterior, and solicits the storage of property upon that ground, knowing at the time that the building is not fire-proof, and the premises and their contents are subsequently destroyed by fire, communicated from without, an action for fraud and deceit will lie against the warehouseman in favor of a party storing goods there, relying upon the description contained in defendant's circular. Hickey v. Morrell, N. Y. Ct.

App. June 1, 1886, 5 East. Rep. 685. 16. GIFT TO WIFE-Policy of Life Insurance-De

livery-Volunteer.-A., under engagement of marriage with B., took out a policy of life insurance upon his life, payable to his legal representatives. He intended it for B.'s benefit, but it was not made payable to her from feelings of delicacy on her part. After their marriage he often stated his intention to assign the policy to her, and before his death he obtained a form of assignment from the company to so do, but for some reason this was never exécuted, though after he got it he stated that she was to get the insurance money. The policy was put in a tin box, with other papers of A. and B., and remained in the keeping of B. un

til after the death of A., who died intestate without issue. At the audit of A.'s estate one-half of the poilcy was claimed by his father and mother. Held, that a valid gift to the wife was made out, as against her husband's parents, who were volunteers. Appeal of Madeira, s. C. Penn.,

Feb. 15, 1886, 4 Atl. Rep. 908., 17. GUARDIAN AND WARD-Sale Under Order of

Probate Court-Dispensing With (Bond-Constitutional Lau-Deprivation of Property.-Where a sale of land by guardian took place under order of probate court, and the proceedings were regular and in proper form, save that the court dispensed with the giving of a bond by the guardian under a certain requirement of the statute, the failure to furnish this bond did not render the sale void. The failure to require the bond being a question of procedure merely, is not a breach of the constitutional provision against depriyation of property, without due process of law. Arrowsmith v. Harmening, S. C. U. S. May 10, 1886: 16

Ohio L. J. 39. 18. HUSBAND AND WIFE - Divorce-Pleading.

Dissolution of marriage will be decreed upon a bill charging extreme cruelty, and also refused to support, where the latter charge is fairly proved, even without any proof of cruelty, and even though the bill is not specific enough to admit any proof of cruelty whatever. A bill in equity seeking divorce on the ground of extreme cruelty, but failing to specify any distinct act of cruelty, is insufficient to warrant the introduction of any proof whatever. Dashback v. Dashback, s. C. Mich.,

July 1, 1886: 28 N. W. Rep. 812. 19.

Divorce - Temporary AlimonyBargaining Away Alimony by: Wife-Section 6235, Horr. St.- Assigning Alimony by Wife Before Decree to Attorney.-An allowance for temporary alimony to enable a wife to carry on a suit for divorce, and to furnish her sustenance during its pendency, under $ 6235, How. St., is not assignable, and it is against the policy of the law to permit the wife to bargain it away in advance of re. ceiving it. The power to decree alimony is statutory, and incident to the jurisdiction in suits for divorce, and a contract made between the wise and her solicitor, in advance of a decrae for divorce and allowance of alimony, to pay one-half of what she should be awarded to her solicitor is void, as being against public policy. Jordan r. Westerman,

S. C. Mich., July 1, 1886: 28 N. W. Rep. 826. 20. JUDGMENT Conclusiveness of - Action on

Judgment - Judgment against Vinor-Vo Guar. dian ad Litem-Judgment Voidable Only.- Errors in the course of proceedings leading 10 a judgment when not jurisdictional, cannot be reviewed in an action upon the judgment. The rule is intlexible that a judgment cannot be collaterally assailed for errors not jurisdictional. A judgment rendered against a minor, where no guardian bas been ap. pointed, is not void, but only voidable by a direct proceeding. Such omission will not vitiate the judgment on a collateral attack. Millard r. Var.

mon, S. C. III. May 14, 1886, 7 N. East. Rep. 168. 21. NEW TRIAL- In Equity Res Adjudicata

Equity-Diligence.- A bill in equity to obtain a new trial, and for relief against a judgment, will not be entertained after motion for new trial has been submitted to and denied by the court which rendered the judgment, and its denial affirmed by the court of last resort, because the entire controversy must, under such circunstances, be conside

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