direct showing-and the unreasonable delay, upon which there was testimony for the jury, but so mixed up with the other facts that we cannot very well consider the rulings fully, because we cannot be sure how the court below would have modified them had the case been confined to the disturbance of business for these causes alone.

Judging from the record, there is some reason to think that counsel took too much latitude in asserting facts and leading witnesses. And there is also some reason to think that in the final instruction concerning damages the jury were allowed to assume too much from the mere change of business profits without reference to the natural consequences of any such interruption,-lawful or unlawful,-at that time of the year, and with the unavoidable confusion of such repairs and changes. In a previous part of the charge they had been properly cautioned, but other elements had been discussed, and the question of malice had come in, so that there was some danger of error.

We also think that the damages should have been confined to those belonging to Ives alone. If he had sued on the contract of lease, it may be that, as the only one who was a party lessee, he might represent the entire cause. of action. But in an action on the case, any one who had rights of possession derived from the lease could have sued for their disturbance, and recovered damages. It was shown here by some testimony that Ives was not the sole party interested in the business which was damaged; and while a failure to plead in abatement may have prevented the entire defeat of the action, it does not enlarge his private cause of damage. Whether this is one of those cases where such a plea could be filed, we need not now consider. Neither can we anticipate what proportion plaintiff's interest may turn out to be. But he can recover no more damage than he has suffered.

There must be a reversal and new trial.

The other Justices concurred.

53 MICH-41

INDEX

[The titles of the Index are the same as in the United States Digest for
1883. Cross-references are to pages; and where there are several notes
on a page the number of the note is added in parenthesis.]

Abandonment-of rights preventing specific performance, 341.
Abatement--plea for non-joinder of plaintiffs, 22 (2) 636 (8).
of sidewalk opening as a public nuisance, 450 (2).
Absence of witness; continuance, 60 (2).

Abuse of discretion-as to allowing examination by jury, 271 (4).
in excluding plea puis darrein, 577 (4).
Abutters-trespass by cattle on premises of, 457 (2, 3).
Acceptance of goods sold; option, 438 (1).

of proposal in taking land for streets, 442.
remedy when acceptance is optional, 439 (2).
sale subject to acceptance; replevin, 444 (3).
Accidental injury-to employees, 212 (1-5), 274.
Accommodation indorsement-evidence, 155 (1).
Account-evidence of the assignment of an account, 574 (2).
loss of lien by re-statement of, 123.

Accounts-of executor, allowance for advancement, 350.
no interest accrues while account is unliquidated, 421 (3).
Accounting-by widow for rents and profits of estate, 621 (3).
costs on cross-appeals for printing record, 4.

final order in suit for partnership accounting, 479 (1).

in partnership; interest, 421 (4).

objections on appeal from decree therefor, 421 (1).

reasonable expenses incurred by individual partners, 421 (2).
Acknowledgment-as part of the instrument, 523 (1, 4).
ACTION OR SUIT.

1 Objection for the non-joinder of plaintiffs should be made by plea in
abatement, and comes too late if raised, for the first time, on error.
Butterfield v. Gilchrist, 22.

2 In every action at law upon a contract the contest must be between
the two alleged contracting parties; a beneficiary's right to resort to
the equitable action for money had and received exists only where
the parties to the contract have given him such a right as transfers
the fund to his control. Davis v. Lenawee County Savings Bank, 164.
3 The rule that a stranger to the consideration cannot sue on the con-
tract does not apply where the contract was made directly with him
and he is therefore in privity with the defendant. Monaghan v. Agl.
F. Ins. Co. of Watertown, 238.

4 In a suit to rescind the deed of a corporation the corporation itself
should be complainant or should at least be a party to the record;
otherwise, when the only prayer is for a cancellation of the bargain,
it is fatally defective, since that concerns the party injured only and
cannot be granted without a re-payment of the money and release of
[643]

securities, and the giving of proper allowances for what the pur-
chaser may have ventured in reliance on his title. Cicotte v. An-
ciaux, 228.

5 The rule that a suit in chancery begins for most purposes with the
filing of the bill, applies where a defendant who has not answered
dies, and the suit is revived by petition against his administrator.
Gordon v. Tyler, 629.

against bank for money deposited, 163 (6).

against estate; as on a lost note, 497 (3).

against sheriff for value of exempt goods, 280 (3).
against third person who answers for a note, 96 (1).
analogy to proceedings for allowance of claims, 497 (2).
as for tort, based on exercise of legislative power, 98 (3).
by infant heirs for unauthorized use of property, 329 (1).
by tenant for disturbance of possession, 636 (3, 5, 7).
consolidation of causes of action for conversion, 364 (1).
for breach of warranty; change of issue, 431.

for compensation for breaking log-jams, 22 (1, 5, 6).
for malicious prosecution, 33 (1).

for over-exaction of fare on railroad train, 118 (1).

for personal injury caused by explosive, 507 (8).

for personal injury from coasting in the street, 135 (1).

for personal injury to employee, 212 (1-5), 274.

for personal injury as between employees and strangers, 125 (2).

for purchase price of goods sold on credit, 471.

for seduction, in case of rape, 168 (3).

for slander; want of bill of particulars, 496.

former judgment in bar of action, 299 (1).

on appeal bond; satisfaction of judgment, 577 (2).

on claim omitted from schedule of bankrupt's debts, 425.

on joint policy for widow and minors, 239 (13).

on note by agent for collection, 42 (1).

on promise to pay for goods sold to another, 427 (3).

right of action for seduction, 169 (11).

to recover tax-payment back; legality of assessment, 554 (2).
verdict or record in bar of action, 304 (2).

Additional insurance-notice of, 306 (4).

Adjournment-of election to another place, 27.

Administrator-petition of revivor of suit against, 629 (1).
Admission-by counsel of client's insolvency, 468 (2).

by plea of guilty, covering several charges, 488 (1).

of evidence before its proper place, 63 (1–3).

of evidence without cross-examination, 537 (1).

of facts set up in return to order to show cause, 135 (3).
of party to record, evidence of, 107 (5).

ADULTERY.

In a prosecution for adultery acts of familiarity committed two years
before are too remote to be put in evidence. But acts within a short
time before and very soon after the act complained of, if establish-
ing a continuous intimacy, may be shown. People v. Hendrickson.
525.

omission of respondent to summon other party, 525 (3).
the woman a witness for prosecution, 525 (2).
Advancements-by executor, allowance therefor, 350.
Advertisement-of lands, for delinquent paving tax, 158 (1).
Adverse claim-by municipality, laches in asserting, 228 (4).
Adverse party-testimony excluded by death of, 286 (3,4).
Adverse possession-of husband as against wife, 575 (1).
not broken by tearing down fence, 462.

who may hold adversely, 575 (1), 615 (1).

Affidavit as creditor, in estoppel from bringing replevin, 444 (1).

for capias ad respondendum, 569 (1,3).

for continuance for absence of witness, 60 (2).

for reversal of justice's judgment, 116 (3).

for writ of replevin as giving jurisdiction, 116 (1).

necessary to bill to enjoin co-trustees, 228 (8).

of commissioners to impeach their own award, 218 (3).
of value, to impeach award, 218 (2).

to bring in absentees; filing of, 629 (2).
to hold to bail; requirements of, 569 (2).
to hold to bail in action for slander, 496.
Affirmance-of sale on foreclosure, 146 (2).
Age-evidence of a person's age, 564 (1).

Aggravation-of damages in case of seduction, 168 (8).

matter of aggravation in relation to damages, 280 (6).

Agreed statement-estoppel from denying facts agreed to, 479 (3).
rulings based on conceded facts, 291 (1).

Agreement-See CONTRACT.

Alimony-allowance of temporary alimony; wife's property, 585 (1).
contempt in refusing to pay, 5.

mortgaging property to raise money to pay, 581 (4).
Allegation-in plea, of facts creating exceptions, 33 (1).

Allowance-for necessary expenses upon decedent's estate, 621 (3).
of claims by commissioners; proceedings, 497 (2).

of costs from estate of decedent, 352 (2).

of costs; review of, upon certiorari, 460 (1).
of note against decedent's estate, 497 (1, 3).
of solicitor's fees in divorce suit, 522.
of temporary alimony, 581 (1,2), 585 (1,2).
to executor on settling accounts, 350.

to purchaser on rescission of deed, 228 (9).

Amendment of Constitution; effect on invalid statute, 392 (3).

of declaration for breach of warranty, 431.

of declaration on insurance policy, 238 (7)

of divorce decree as to alimony, 550.
ANIMALS.

1 Cattle in anybody's charge are not "running at large," and, if on the
highway, they are not trespassing on the premises of the adjacent
owner; and so in neither case is he warranted in impounding them.
Bertwhistle v. Goodrich, 457.

2 The presence of cattle in the highway depasturing the herbage of
adjacent owners is a grievance for which there may be a legal
remedy; but it is not a nuisance that will warrant him in summarily
impounding them on his premises. Id.

fish are feræ naturæ, 375 (4).

Ante-nuptial contract-effect on will, 432 (4), 433 (5).
APPEAL.

1 A decree which, in a suit for a partnership accounting, places the
date at which the firm dissolved at a period later than is claimed by
either party, is not final as disposing of the case, but is final and
appealable as settling the basis for accounting. Candler v. Stange,
479.

2 On appeal from a decree for an accounting the appellant's objections
only will be considered. Sweeny v. Neely, 421.

3 Devisees who have kept their interest in the testator's personalty but
have conveyed away their rights in the real estate, retain sufficient
interest to entitle them to appeal from a construction of a will which
disposes of both kinds of property. Rivenett v. Bourquin, 10.