Volume 101 — Michigan Reports

.Error to Wayne. (Gartner, J.) Replevin. Plaintiff brings error. The facts are stated in the opinion, and in the former reports of the case.

<p>Pleading — Amendment of declaration — Carriers—Ejection of passenger-instructions — Special questions to jury— , New trial.</p> <p>1. A declaration in a personal injury case alleging; in substance, that the plaintiff purchased a ticket entitling him to a round trip between certain stations, and that, after starting on the return trip, he requested the conductor to give him a lay-over check, or allow him to stop off, at an intermediate station, which request was refused, and, because of plaintiff’s inability to pay the additional fare demanded, he was ejected from the moving train and injured, may be amended so as to charge that plaintiff was carried on the outgoing trip as far as said intermediate station, the conductor taking up the outgoing portion of said ticket, and that on the following day plaintiff entered a car of the defendant at said intermediate station to complete the outgoing trip, and, because of his inability to pay the fare demanded for transportation over that portion of the route, he was ejected from the moving train, and injured, etc.; the statute of amendments being broad enough to warrant such action.</p> <p>2. In a suit against a railroad company for injuries sustained by being unlawfully ejected from one of its trains, the declaration averred that the conductor and a brakeman forcibly ejected plaintiff from and off the moving cars, throwing him with violence from the platform of the cars to the ground, and plaintiff testified that he was pushed or shoved off while the train was in motion. The jury were instructed that unless they should find that the plaintiff was shoved or pushed, or in some way forcibly ejected, from the train while it was in motion, as alleged in the declaration and claimed in plaintiff's-testimony, he could not recover. And it is held that the jury should not have been left, as they were under said instruction, to find that the plaintiff was “in some way” forcibly ejected from the train while it was in motion, other than that shown by the evidence and alleged in the declaration, -but that the instruction should have limited them to the precise manner in which the act was committed.</p> <p>3. It was error to instruct the jury that if they should find that the conductor, or any other employé of the defendant, acting under the conductor’s orders, ejected plaintiff, or compelled him to alight, from the cars while they were in motion, as he testified to, and if he was thereby injured, the defendant was liable, there being no evidence to show that the conductor gave any such instructions or orders.</p> <p>4. Special questions were submitted to the jury in a personal injury case, covering certain facts necessary to be found in favor of the plaintiff in order to warrant a verdict in his favor. The'jury returned a general verdict for the plaintiff, but did not answer the special questions. During a conversation betwéen the court and the foreman of the jury, and after the court had stated that the questions must be answeted, and that the jury had better retire for that purpose, the-attorney for the plaintiff remarked, in the x>resence of the jury,, that he thought that, technically, the questions were not covered by the Verdict, although it practically covered them, to-which remark defehdant’s counsel excepted. The jury then answered the questions in such a way as not to conflict with their general verdict. And it is held that it is manifest that-t|ie jury did not answer the questions in the first instance for fear they would interfere with their general verdict, and that the suggestion by plaintiff’s counsel at such a time was entirely out of place, and was a clear intimation to the jury to make their answers to the special questions conform to their general verdict.1</p> <p>5. While this Court, under its prior decisions, cannot interfere with the discretion of the circuit judge in refusing to grant a new trial where the motion was made before the statute authorizing exceptions to such refusal, and a review thereof on error, went into effect (Act No. 134, Laws of 1893),1 it can and ought to require that the trial be conducted in strict accordance with the rules of law, and cannot hold that errors such as those pointed out in this case were not prejudicial.</p>

<p>Error to Baraga. (Haire, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

. Clair. (Vance, J.) Submitted on briefs Bill to set aside a levy upon complainant's homestead, and the sale 'thereunder. Decree affirmed. The facts are stated in the opinion.

<p>Bills and notes — Failure of consideration — Evidence.</p> <p>1, The main question in this case is whether the consideration of the notes sued upon were the services of a stallion owned by the payee, and the privilege of returning the mares for reservice the following year if they proved not to be with foal, or the begetting of a colt for each note. And it is held that, taken in connection with the fact that one of the mares foaled, and that thereupon one of the notes was paid, and that no demand was made for the payment of the remaining notes, although nearly a year elapsed after their maturity and before the death of the payee, there was sufficient testimony in support of the latter theory to go to the jury, and that the question was properly submitted.</p> <p>2. A circular advertising the stallion, and stating that he would make the season of the year in which the notes were given at a certain price the season, and that mares not proving in foal might be returned free the following year, was properly excluded as evidence in behalf of the plaintiff, it not being shown that any copies of the circular were published, posted, or distributed, or that it, or any copy thereof, had ever been brought to the-attention of the defendants. '</p>

<p>Error to Jackson. (Peck, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Wayne. (Brevoort, J.)</p> <p>Negligence case. 'Plaintiff and defendant Hubbard bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Contract — Certainty of provisions — Damages.</p> <p>Defendant owned an elevator at Gladstone, Michigan, and com tracted with the plaintiffs to turn it. over to them, to be operated by them in the transaction of the grain business, in which they were engaged. The defendant was to pay on all grain transferred from cars to vessels one-half a cent per bushel for such transfer, and was to have the privilege, if desired, of supervising the weighing of all grain weighed from the cars to the house, and from the house to vessels, And it is held that there is no such uncertainty about the terms of the contract as was the case in Davie v. Mining Co., 93 Mich. 491, where it was held that an agreement by which miners were to work at mining the ore in a specified pit for $1.50 per ton, “as long as they could make it pay,” was not of such a character as to entitle them to damages for its breach; that here the contract is definite, and evidently contemplated the transfer of such grain as was received by the defendant in the usual course of business.</p>

<p>Error to Bay. (Cobb, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

(Edget, J.) Bill to declare a trust in lands, and to compel a conveyance. Complainant appeals. The facts are stated in the opinion.

<p>Landlord and tenant — Forcible entry and detainer — Parties.</p> <p>1. The general rule is that the possession of a tenant is not such a possession as entitles his landlord to bring the action for forcible entry and detainer, and that, when a tenant is disseised under circumstances which authorize the bringing of the action, it should be instituted by the tenant.</p> <p>2. The landlord cannot in such case maintain the action in his name, upon the claim of collusion between the tenant and one adversely interested, where the tenant could not himself have instituted the proceeding by reason of the entry having been made with his consent.</p> <p>3. A possession of a public billiard room, sought to be acquired by placing several men therein, with directions to remain, which they do until the hour for closing, when they are forcibly expelled, is not a sufficient basis for the institution of proceedings for forcible entry.</p> <p>4. One entering into, premises through collusion with the tenant cannot, in a proceeding to recover possession instituted at the expiration of the term, set up a title or right adverse to the landlord.</p>

(Hosmer, J.) Bill to rescind an exchange of real estate on the ground of fraud. Defendants appeal. The facts are stated in the opinion.

<p>Statute of limitations — Estates of deceased persons — Growing crops — Conversion—Tenancy in the entirety — Evidence.</p> <p>1. The statute of limitations will not begin to run against an action for the'conversion of the personal property of an intestate until an administrator is appointed.</p> <p>2. Where, in a suit by an administrator to recover from the widow of the intestate the value of certain crops growing upon a, farm owned by her and her husband in the entirety at the time of his death, and which she afterwards converted to her i own use, the plaintiff claims to recover upon the theory that there was an arrangement between the husband and wife by which the husband was to own the crops, an objection that-title to the crops can only be shown by showing the record; title to the farm is untenable, as, if plaintiff’s theory is substantiated by the evidence, he can recover for the whole crop.</p>

(Reilly, J.) Rill to foreclose a mortgage. Defendant Charles JHaviland files a petition praying that the sale be set aside, the decree reopened, the order pro confesso vacated, and that petitioner and his codefendant Lewis J. Haviland be permitted to appear and answer and make their defense. Complainant appeals from an order granting the relief prayed for. The facts are stated in the opinion.

<p>Garnishment — Justices' courts — Jurisdiction—Summons to show cause.</p> <p>A judgment against a garnishee in justice’s court, founded .upon proceedings instituted before judgment in the main suit, cannot be sustained upon a summons to show cause issued some 74 days after the termination of the suit against the principal defendant, no continuance having been had under How. St'at. § 8053, even though the garnishee appeared, and pleaded' to the merits.</p>

Exceptions before judgment from Yan Burén. (Buck, J.) Respondent, a druggist, was convicted of selling liquor to a person in the habit of getting intoxicated. . The facts are •stated in the opinion.

(Lane, J.) Eespondent was convicted of a violation of tbe general liquor law, and sentenced to imprisonment in the county jail for 90 days. Upon hearing on habeas corpus he was remanded, but ordered to be admitted to bail pending an appeal. The facts are stated in the opinion.

Exceptions before judgment from Van Burén. (Buck, J.) Respondent was convicted of an unlawful sale of liquor in a local option county. The facts are stated in the opinion.

Exceptions before judgment from Macomb. (Canfield, J.) Eespondent was convicted of fishing with a net in the waters of Lake St. Clair, contrary to the provisions of Act No. Ill, Laws of 1889. The facts are stated in the opinion.

<p>Appeal from St. Joseph. (Loveridge, J.)</p> <p>Bill for divorce. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Chattel mortgage— Warehouseman — Auctioneer—Conversion— Description of property — Judgment.</p> <p>1. Trover will not lie against a storage company for tlie value of goods stored with it by a mortgagor, and taken from its custody by the mortgagee, without its knowledge or consent, and converted to his own use.</p> <p>2. Where an auctioneer receives property, and sells it, and pays over the proceeds, less his commission, he is liable in trover to the real owner, although he has no knowledge of want of title in the party for whom he sells, and acts in good faith.</p> <p>3. Where in an action of trover against a mortgagee, a storage company with which the goods had been stored by the mortgagor, and an auctioneer who received the goods, sold them at mortgage sale, and turned over the proceeds to the mortgagee, the jury render a verdict for a certain sum against each defendant, and there is no testimony by which they can determine that each defendant converted a portion of the goods, it is not error for the court to send the jury back, with the instruction that there is no ground for a division of the verdict against the defendants.</p> <p>4. Where in an action of trover against a mortgagee, and an auctioneer who sold the goods on foreclosure, it appears beyond contradiction that a portion, of the goods sued for were not covered by the mortgage, it is not error to refuse to submit to the jury, at the request of the defendants, the question whether the auctioneer sold goods to an amount exceeding the mortgage debt.</p> <p>5. Where mortgaged goods are described in the mortgage as “all household and personal effects,” and said general description is followed by a specific and minute description of the goods, the latter description limits the former to the property particularly described.</p> <p>6. Where, in trover for chattel-mortgaged property wrongfully converted by the mortgagee, it appears that only a portion of the sum purporting to be secured by the mortgage was received by the mortgagor, and that on an attempted settlement she received a certain sum, and that a portion of the goods sued for were not covered by the mortgage, the mortgagor should have judgment for the value of the mortgaged property, less the amount of money so received," and also for the full value of the goods not mortgaged.</p>

<p>Trespass — Title to lands — Pleading—Costs.</p> <p>1. Chapter 272, How. Stat., which provides for the recovery of treble damages in actions for trespasses on lands, and which contains no provision as to costa, must be construed in connection with How. Stat. §§ 6890-6893, 6897, which provide that, in every action in justice’s court where the title to land shall in any wise come in question, the defendant may give notice thereof under his plea of the general issue, and, upon filing the required bond, the justice shall certify the case to the circuit court for trial, and, if plaintiff recovers judgment, he shall recover double costs, and if defendant recovers judgment, other than that of nonsuit, and the presiding judge shall certify that the title to land did not come in question, the defendant shall not recover costs, but shall pay costs to the plaintiff.</p> <p>2. Where, in an action of trespass in justice’s court, the declaration charges that the defendant, with force and arms, and contrary to the provisions of section 1, chap. 272, How. Stat., entitled “Trespasses on Lands,” did cut down and carry off, without and against the leave of the plaintiff, the owner and occupant in possession thereof, divers trees (describing them) then and there being and standing upon the land of the plaintiff (describing it), by means whereof plaintiff has lost and been deprived of said trees, and said lands and premises of the plaintiff have been greatly injured and depreciated in value, whereby the said defendant has, by force of said statute, forfeited three times the amount of damages sustained by the plaintiff, and the case is certified to the circuit court for trial upon a plea of title, and on the trial the real point in controversy is whether or not the plaintiff gave permission to the defendant to enter upon the land and cut the trees, which issue is found and a verdict rendered in favor of the defendant, the title to land does not come in question, and the court is justified in so certifying.</p>

<p>Mutual benefit associations — Reserve fund — Receiver—Distribution of assets — Comity—Estoppel—Contempt proceedings.</p> <p>The Supreme Sitting of the Order of the Iron Hall is a benefit association organized under the laws of the state of Indiana, and had local branches in the State of Michigan and in other states, which were subject to the authority and control of the main organization and its officers. The benefit fund was derived from assessments made from time to time by the Supreme Sitting upon the holders of benefit certificates, out of' which benefits were paid in case of the sickness, disability, or1 death of a member. These assessments were made through the local branches, and 80 per cent, of the same was sent to. the supreme cashier of the Supreme Sitting, and 20 per cent, of the amount received by each local branch on each assessment was set aside and retained as a reserve fund, which fund was declared by the laws of the order to be the property of the Supreme Sitting, and subject at all times to its control.. The corporation was adjudged insolvent by the Indiana court,, and a receiver was appointed of its assets both within and without that state, after which an ancillary receiver of its. assets in the State of Michigan was appointed by the circuit-court of Wayne county, in chancery, who, after duly qualifying, demanded from the proper officers of one of said local branches, located in the city of Detroit, all moneys and effects-in their hands belonging to the' Supreme Sitting. Upon their refusal to comply with said demand, contempt proceedings, were instituted in said Wayne circuit court, on the hearing of which the circuit judge refused to punish said officers for contempt in refusing to comply with said demand, it appearing on said hearing that garnishment proceedings were pending against said officers ancillary to a suit against said corporation. And, in refusing an application for a mandamus to compel the circuit judge to punish said officers for said alleged contempt, it is held:</p> <p>a — That an examination of the various provisions of the constitution and laws of the order convinces the Court that the title to the reserve fund retained by the local branches is in the Supreme Sitting; that the 20 per cent, of the assessment retained by each local branch differs from the 80 per cent, transmitted to the Supreme Sitting, mainly in this, that the possession and supervision, subject to such laws, remained with the local branches; that the whole fund is for the protection of, and payment of benefits to, holders of benefit certificates; and that the reserve fund seems to be essentially a part of the benefit fund, although it may be in the nature of a safety fund to insure the payment of maturing certificates; citing Buswell v. Supreme Sitting, 161 Mass. 224; Ware v. The Same, 28 Atl. Rep. 1041.</p> <p>b — That the local branches and their officers ai-e a part of the order, and cannot, in this proceeding, question its due incorporation; citing Bank v. Stone, 38 Mich. 779; Manufacturing Co. v. Stuart, 46 Id. 482; Nibl. Mut. Ben. Soc. § 2.</p> <p>c — That the Indiana receiver, and the petitioner as ancillary receiver in this State, not only represent the creditors of the corporation, but stand in its stead; that under the decree of the Indiana court, and of the circuit court of Wayne county in chancery, they are directed to gather in the corporate assets, and, unless some reason is shown why such order should not be carried out, the local branch in Detroit and its •officers and members cannot refuse to turn over the assets in its and their hands to the ancillary receiver; that, when ireceived by him, the Michigan court ma.y order them transmitted to the Indiana receiver, but that such order should be made only when it is made certain to the court that the members in this State will share proportionately with the other members throughout the organization; that the fund is found in many different states, and comity requires that the Court ishould do all it can to insure, as far as possible, a speedy distribution of the whole property among those entitled to it, but that the court below must have some discretion in making said order so that the rights of the citizens of this State may be protected.</p> <p>d — That an order for the payment of this fund to the receiver :shoulc| not be made until the questions arising under the .garnishment proceedings are determined; that the plaintiff in .that case has a right to his day in court before he can be •deprived of the fund, or before the local branch and its officers are bound to piay it over to the receiver; that he is not a party here, and his rights cannot be here litigated; that, if he ■obtained a valid lien on the fund, it was not dissolved by the filing of the bill and the appointment of a receiver, but may be enforced; and that proceedings for contempt are not appropriate for the trial of the issues involved.1</p>

<p>Error to Muskegon. (Dickerman, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion, .and in the head-notes.</p>

<p>Error to Bay. (Cobb, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion, and in 80 Mich.. 77.</p>

<p>Error to Wayne. (Gartner, J.)</p> <p>Trover. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Wayne. (Hosmer, J.)</p> <p>Assumpsit. Defendants bring error.</p> <p>The ;faets are stated in the opinion.</p>

<p>Error to Manistee. (Judkins, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

(Padgham, J.) Summary proceedings to recover the possession of land. Complainant brings error. The facts are stated in the opinion.

<p>Error to Saginaw. (McKnight, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

(Smith, J.) Bill to restrain defendant from interfering with complainant's rights in a certain stairway. Defendant appeals. The facts are stated in the opinion.

(Donovan, J.) Delator applied to the circuit court for a writ of prohibition to restrain respondent from appointing an administrator in the matter of the estate of Timothy Lynch, deceased, and brings certiorari to review the order denying said writ. ' The facts are stated in the opinion.

<p>Trespass — Adverse possession — Abandonment of premises — Instructions to jury.</p> <p>1. Trespass to lands cannot be maintained against one actually in possession, although the plaintiff have the legal title, the remedy in suph case being ejectment or case, depending upon the wrong to be redressed; citing Safford v. Basto, 4 Mich. 406; Carpenter v. Smith, 40 Id. 639; Buggies v. Sands, 40 Id. 559; Hecoek v. Van Dusen, 80 Id. 359.</p> <p>2. Where, in an action of trespass to lands, each party offers proof tending to show ownership in fee, and the court instructs the jury that the plaintiffs must recover unless adverse possession by the defendant is proved, such instruction practically sustains plaintiffs’ alleged title, and as effectually deprives the defendant of any benefit from his, leaving him to stand or fall upon the one question of possession; and, on plaintiffs’ appeal, all questions arising Upon the respective titles may be eliminated from the case.</p> <p>3. Where, in an action of trespass to lands, the defendant claims, and introduces evidence tending to show, that the plaintiff abandoned possession of the lands, and that the party under "whom the defendant committed the acts complained of thereupon entered into possession, and retained it, and authorized the commission of such acts by the defendant, and the plaintiff maintains, and gives evidence tending to show, that he never abandoned the premises, and that the alleged possessory acts relied upon by defendant were mere trespasses, an instruction to the jury that the plaintiff would not lose possession by mere neglect to work or manage the place, and that an intention to surrender possession must be found from his acts and conduct, which must be such as to clearly prove an intention to abandon the land, is all that can be asked upon the question of abandonment; and the jury are further properly instructed that isolated acts of dominion by the defendant, and the party under whom he attempts to justify, would be trespasses, and would not constitute possession, which would involve continuity of dominion, — a taking and holding, which could alone be found from the character of the acts done and the surrounding circumstances.</p> <p>4. Concise charges are not only commendable, but essential to a good understanding of the case by the jury, and it is a very proper practice for the trial court to extract from requests to charge (which are admirable reminders) such matters as should be explained to the jury, weaving them into a charge which, from its continuity and harmony, will be better understood than a succession of abstract propositions could be.</p>

<p>Trespass — Estoppel.</p> <p>Where, on the trial of an action of trespass to lands, it appears that the defendant, before committing the alleged trespass, applied to the plaintiff to ascertain -whether or not he had any claim upon the land, and was informed by the plaintiff that he did not know who was boss, but that he rather thought a third person (with whom plaintiff had been in litigation over the title to the land) was, and, if he should change his opinion about the matter, he would let the defendant know, and give him the first chance to rent the land; and the defendant, after waiting a reasonable time, and receiving no information from the plaintiff of any claim on his part to the land, or change of intention or mind upon the subject, and in reliance upon said statements, applied to the adverse claimant to rent the land of him, and entered thereon and did the acts' complained of under his authority, — the plaintiff is estopped to deny that such entry was lawful, and cannot maintain said action.</p>

<p>Elections — Recount—Village officers — Marking ballots — Board of canvassers.</p> <p>1. Act No. 208, Laws of 1887 (3 How. Stat. § 234a1), which provides for the correction of frauds and mistakes in the canvass and returns made by inspectors of elections, does not cover village elections.</p> <p>2. Where the official ballot used at a village election under the election law of 1891, as amended in 1893,. contains but one ticket, i. e., the name of but one person for each and every office to be voted for at such election, the failure of electors to stamp a cross in the circle at the head of their tickets, while a non-compliance with the statute, will not authorize the inspectors of election to reject the ballots.</p> <p>3. The common council of the village, when convened to determine the result of the election, as required by law, can act only upon the returns received from the board of inspectors, and the only remedy of a candidate, who is defeated by the rejection of such unstamped ballots, is by quo warranto; citing Roomer v. Board of Canvassers, 90 Mich. 27.</p>

<p>Appeal from Oscoda. (Simpson, J.)'</p> <p>Bill to restrain the removal of certain timber. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Corporations — Religious society — Denial of incorporation — Estoppel —Pleading—Name of plaintiff — Amendment.</p> <p>1. The maker of a promissory note, given to a religious society in its corporate name to assist in the payment of its debts, cannot escape liability by showing that the certificate of incorporation of the society was not recorded until after the making of the note.</p> <p>2. The summons in a suit upon a promissory note payable to the order of the “ Evangelical Church of Vicksburg, Michigan,” described the plaintiffs as “Trustees of the Salem Church of the Evangelical Church of North America, a Corporation, at Vicksburg, Michigan.” The name specified in the certificate of incorporation was the “Salem Church of the Evangelical Association of North America, in Kalamazoo County, State of Michigan,” being the county in which Vicksburg is situated. The plaintiffs declared orally on a certain promissory note made and executed by the defendant to the “ Evangelical Church of Vicksburg, Michigan,” and averred that said note was intended for the “ Salem Church of the Evangelical Association of North America, of Vicksburg, Michigan,” to which declaration the defendant pleaded the general issue. And it is held that the objection of the defendant, made on the trial of an appeal from the .justice’s judgment, that the suit was not brought in the name of the corporation as expressed in the certificate of incorporation, not having been taken before the justice, was waived.</p> <p>3. Where in a suit in justice’s court, intended to be' brought in the corporate name of a religious society, the trustees’ names are stated in the summons, followed by the clause, “ Trustees of the” corporation, but omitting the word “as,” and the defendant pleads the general issue, and denies under oath that the plaintiff is a corporation, and, on the trial of an appeal from the justice’s judgment, for the first time raises the objection that the suit was commenced by the plaintiffs in their individual capacity, and not as the church or corporation, the appellate court will consider an amendment made in the furtherance of justice, if appearing that the defendant has not been misled or prejudiced; citing Merrill v. Village of Kalamazoo, 35 Mich. 311; Warder, Bushnell & Glessner Co. v. Gibbs, 93 Id. 39.</p>

(Adsit, J.) Bill to foreclose mechanics' liens. Complainant appeals from decree sustaining demurrer. The facts are .stated in the opinion.

<p>Railroad companies — Negligence — Proximate cause-Fellow-servants.</p> <p>1. It is the established rule in this State that employes at work on freight trains are fellow-servants.</p> <p>2. Where an applicant for employment as a brakeman on a regular freight train, in order to obtain the position, falsely states to the agent of the railroad company to whom the application is made, and to the conductor to whose train he is assigned under such employment, that he has had experience in the line of work mentioned, the company has a right to believe that he is familiar with the work, and to govern itself, as to instructions regarding the manner of its performance, accordingly.</p> <p>3. A conductor of a freight train desired to leave two box cars on a siding, and directed a brakeman to get upon an empty flat car next to the tender, and assist in making a running switch. The brakeman mounted the flat car, and kneeled down at the rear end. The conductor climbed upon the first box car, which was attached to the flat car, and took his station at the rear, to apply the brake, in which position he was out of sight of the brakeman. The brakeman pulled, the pin at the proper time, and, just as he was reaching over the end of the flat car to lay it on the bumper of the detached box car, the engine suddenly started ahead, and he was thrown onto the track, and his leg so injured as to render amputation necessary. Neither the conductor nor the brakeman gave the engineer any signal to go ahead when, the pin was drawn. And it is held that the engineer should not have started up his engine until notified; that the sudden starting of the engine and flat car was the proximate cause of the accident, for which the engineer alone was responsible; and, being a fellow-servant of the brakeman, the railroad company was not liable for the consequent injury to the brakeman.</p>

<p>Error to Ottawa. (Padgham, J.)</p> <p>Ejectment. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

(Smith, J.) Certiorari to review an order of the circuit court allowing an account for services as coroner. The facts are stated in the opinion.

<p>Evidence — Books of account.</p> <p>1. Where a plaintiff is allowed to refresh his memory from a memorandum book, which he has kept in pencil, and on cross-examination his attention is called to a certain page, and he is asked if it has not been rubbed some with a pencil, which he denies, and the page is then offered in evidence, he is Entitled to have the whole book before the jury, as a comparison of the page in question with the other pages would disclose whether there was anything peculiar in the appearance of that page.</p> <p>2. In order to entitle books of account to be received as evidence, it must appear that the party keeping and producing them is usually precise and punctilious respecting the entries therein, and that they are designed at least to embrace all the items of the account which are proper subjects of entry.1</p> <p>So held where, in a suit brought to recover a balance due for wages and a sum claimed to have been loaned to the defendant, the defendant offered in evidence a memorandum book in which certain entries were made by his wife, who knew nothing about the details of the business, and only made such memoranda as defendant requested her to make. The book did not contain an accurate statement of all the items of account between the parties, but simply memoranda of when plaintiff commenced work, the rate of wages, and amount of money paid. It contained no account of lost time; and the wife admitted that her husband received $30 from plaintiff, which she placed in the safe, and that no memorandum was made in the book of its receipt. The book was excluded by the court, and the ruling is sustained.</p>

<p>Contract — Construction.</p> <p>Plaintiff and his uncle each owned an undivided one-quarter interest in a grist-mill, and in the lease of the land upon which the mill stood. The remaining interest was owned by two daughters of the defendant as heirs at law of their deceased father, who was a non-resident of this State at the time of his death, subject to the rights of the defendant in said property as his widow. After plaintiff had operated the mill for about two years under an agreement to pay to said heirs a specific sum as rental, the husband of one of the daughters, who were both non-residents, called upon the plaintiff, and, after expressing a desire to dispose of the mill property, and in answer to plaintiff’s statement that he would not continue to operate the mill for its earnings, and was ready to step down and out, stated that he did not wish to close up the mill, as it stood on leased ground, and must be kept in operation; that he wished plaintiff to continue to run it, and do the best he could, and, when a sale was made, the heirs would do what was right by plaintiff for keeping the mill running. About 16 months after this interview, during which time plaintiff had continued to operate the mill, the attorney for the heirs wrote him regarding the rent, which was in arrear, and plaintiff, in his reply, referred to the interview with the husband, and stated that he said that he did not wish to take advantage of plaintiff in any way, but wished that he could sell the mill, so as to straighten up the affair. Further correspondence, i-elating to endeavors by both parties to dispose of the property, followed, in which plaintiff was pressed for the rent, ánd a suit for its collection suggested, and in which he made no mention of any counter-claim or claim for services. After operating the mill for over three years in reliance, as he claimed, upon said conversation, the plaintiff brought this suit to recover a per diem of $1.25, less the earnings of the mill during that time, as compensation for his services. And it is held that the promise relied upon was nothing more than a promise of indulgence respecting the rent of the half interest owned by the heirs, and cannot be tortured into a promise on their part to pay to the owners of the remaining one-half, or to plaintiff, the entire expense of the care of the mill for the period claimed for, during all of which time no claim for such payment was made or hinted at by him.</p>

<p>Negligence — Accident at railroad crossing — Evidence—Contributory negligence — Question for jury.</p> <p>1. Where, in a personal injury case against a railroad company, based upon the failure to give the statutory signals before reaching the crossing near which the accident occurred, the plaintiff and her husband testify that it was a calm day, that they had brought their horse to a walk, and were listening for the signals, and heard none, and one of plaintiff's witnesses, who was a passenger on the train, testifies positively that the signals were not given, while the defendant’s witnesses aver that such signals were given, the testimony is conflicting, and the question should be submitted to the jury.</p> <p>2. While it has been held in many cases that, before venturing upon a railroad track at a point where the view of an approaching train is cut off, the traveler should stop and listen, the doctrine has never been applied to a case where the driver is at a distance from the track at the time of the accident, and the injury results from the horse taking fright at the train, and running away.</p> <p>3. The testimony of' bystanders that they did not hear the statutory signals which a railroad company claims to have given before making a crossing is negative evidence, and without weight, unless there is something in the surrounding circumstances tending to show a probability that the witnesses would have heard the signals if given.</p> <p>4 Where in a suit against a railroad company for injuries sustained by being thrown from a cutter, which was overturned by reason of the horse running away, it having become frightened at an approaching train, the evidence clearly shows the cause of the fright of the horse, the admission of the testimony of the driver that the horse was frightened by the train, if inadmissible, works no injury to the defendant.</p> <p>5. Where, in a personal injury case against a railroad company, one of the plaintiff’s witnesses testifies positively that the statutory signals were not given before reaching the crossing near which the accident occurred, but does not testify that he was listening for the whistle, and, being a passenger, could not have been looking for the train, and none of plaintiff’s remaining witnesses, though several of them were within hearing distance, are allowed to testify that they could and would have heard the signals if given, it is reversible error to instruct the jury that some of plaintiff’s witnesses have testified that they were looking and listening for approaching trains, and that if the signals had been given they would have heard them.</p> <p>6. Plaintiff was injured by being thrown from a cutter, in which she and her husband were riding, by reason of the horse taking fright at one of defendant’s trains, and running away. The train was several hours late. The highway ran for about three-quarters of a mile nearly parallel with the railroad track, varying in distance therefrom from 35 to 200 feet, and finally crossed the track, near the place where the accident occurred, at an angle of about 45 degrees. All view of trains approaching the crossing from the opposite direction was cut off, until within 35 feet of the track, by a hill, around which the road passed on a sharp curve. Plaintiff’s husband, who was driving, testified that he waited in a neighboring village for two hours to make sure that the train had passed, and on his way home was informed that it had passed, which information he believed to be true; that he was approaching the crossing, and, just as he reached the line of the right of way, the train came into view, distant less than 300 feet from the crossing, and that his horse turned about and ran away, upsetting the cutter, and injuring the plaintiff. Plaintiff and her husband both testified that they were listening, the horse having been brought to a walk, and that they heard no signals. And it is held that it was for the jury to say whether or not the plaintiff’s husband was negligent in driving within 35 feet of the track without stopping to listen for a train.</p>

<p>Error to Kalamazoo. (Buck, J.)</p> <p>Debt. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Municipal corporations — Defective street — Contributory negligence —Evidence—Privileged communications.</p> <p>1. Plaintiff was injured at the intersection of two streets in the city of Detroit by stepping on the edge of the iron covering of a manhole, situated just outside the sidewalk, and at the corner formed by the intersection of the two crosswalks with the sidewalk. The evidence tended to show that the covering to the manhole rested upon a stone which formed a rim, and that either because the stone had worn away, or because originally too large for the purpose, whenever a person stepped on the edge of the iron covering, the natural result was to force the rim far enough away so that the edge would drop down, and let the traveler into the manhole. Plaintiff was, at the time of the accident, attempting to cross diagonally from the north-west corner of the intersection of the streets to the south-east corner, and claims to have been injured in the manner indicated. And it is held:</p> <p>a — That it was the duty of the defendant to render the manhole reasonably safe, having reference to the probable use which the public would make of it; and that 3 How. Stat. § 1446e, making it the duty of cities to keep their public streets “in reasonable repair, so that they will be reasonably safe and convenient for public travel,” is broad enough to cover all portions of the street in question.</p> <p>b — That, while it would not be required of the city to construct a smooth surface for travel at the point where the manhole was situated, and while it was not necessary that the manhole should be on a level with the sidewalk, yet it was neither extraordinary nor negligent for pedestrians, in crossing the street, to cross at other points than the crosswalks, and to pass over such manhole, using due caution; and, if there was such a defect as is described in the testimony, a pedestrian would be quite unlikely to discover it, even if using due care; and it was therefore a question for the jury whether the place in question was reasonably-safe.</p> <p>c — That an instruction that “it was the duty of the defendant to keep the manhole, in just as safe condition as the sidewalk itself, conceding that it was riot a part of the sidewalk,” if justifying the inference on the part of the jury that the space covered by the manhole must be kept as smooth and present as perfect a surface as the sidewalk, was incorrect and misleading; that the jury should have been instructed that a pedestrian about to cross such a point in the street must take notice of the uneven surface and declivities, and use such care as the situation would suggest to an ordinarily prudent person.</p> <p>2. The plaintiff testified on his cross-examination that he was under the influence of liquor at the time of the accident, and it was also claimed by the defendant that his testimony tended to.show that he paid no attention to where he was going, and did not use due care, and that this was attributable in part to his intoxicated condition. And it is held that an instruction that the testimony of the plaintiff himself was that he was not under the influence of liquor was directly opposed to his own testimony, and, as the question related to a material point, it cannot be said that such a statement of the testimony, coming from the court, was not calculated to mislead the jury in prejudice of the defendant’s case.</p> <p>8. A physician testified in behalf of the defendant that he made an examination of the plaintiff after he was injured, and was then asked to state whether, at the time of such examination, the plaintiff was under the influence of liquor. The witness declined to answer on the ground of privilege, and was sustained by the court, although no objection was made by the plaintiff to the proposed testimony. And it is held that it was error to exclude the testimony; that the privilege claimed was that of the plaintiff, and not of the witness; and, besides, it did not appear that the information as to plaintiff’s condition was necessary in order to enable the physician to prescribe for his ailment.1</p>

<p>Appeal from Bay. (Cobb, J.)</p> <p>Bill to revive a life insurance policy. Complainant-appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Osceola. (Judkins, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Midland. (Dodds, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Wayne. (Brevoort, J.)</p> <p>Case. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Logging contract — Common-law lien — Trover—Part performance of contract — Quantum meruit.</p> <p>1. One who performs labor in cutting, hauling, and driving logs for another, under a contract which gives him the right to retain possession of the logs until he is paid for his services, has a common-law lien on the logs for such services.</p> <p>3. Where logs upon which a contractor has a common-law lien are taken from his possession by the general owner without his permission, trover is an appropriate remedy for the wrong done.</p> <p>3. The modern doctrine that, even where one has failed to comply with the terms of his contract, he may recover, upon a quantum meruit, the value of his services, less such damages as the other party may show have been occasioned by his breach, cannot be extended so as to entitle a contractor to maintain a common-law lien upon logs in his possession under a contract for the cutting, hauling, and driving of the same, when he has failed to comply substantially with 'the terms of his contract.</p>

Mandamus. Relator applied for mandamus to compel respondents to convene as a board of canvassers, and canvass all the votes cast at a certain election held in said county upon the question of the removal of the county-seat to the village of Lewiston, their prior determination that said' proposition had not carried being based upon the rejection of the vote of a certain township.

Mandamus. Relator applied for mandamus to require the respondent to set aside an order vacating an attachment in a log-lien suit. The facts are stated in the opinion.

<p>■ Libel and slander — Pleading— Privilege — Evidence—Maliee—Jury¡ as judges of the lato — Damages.</p> <p>1. An article which, to the common understanding, charges that. the principal of a school has heen guilty of taking indecent and criminal liberties with the persons of his pupils, and that the plaintiff, who sues the publishers of the newspaper in which the article was published for libel, has assisted the teacher in so doing, is actionable per se; citing Bourreseau v. Journal Co., 63 Mich. 425; Randall v. Evening News Ass’ny 79 Id. 278; Belknap v. Ball, 83 Id. 591.</p> <p>2. The defendants gave' notice that they would give in evidence in their defense that they had learned that the teachers in said school were in the habit of sending to saloons for liquors, to be taken to the school, to the knowledge of the plaintiff;, that defendants had been credibly informed of the grossly immoral conduct of the plaintiff as such teacher, and of his habit of having intoxicating liquors in the school, and of his. immoral conduct in other respects while engaged as such teacher; that a co-teacher, who was referred to in said article, had prosecuted defendants for criminal libel, and they had been acquitted; and that, believing the facts alleged against, plaintiff to be true, defendants published the article complained of as a matter of great public interest and concern, and therefore should insist that it was privileged. And it is. held that the facts set forth in the notice, if true, do not support the charge published, and the court was justified in striking the notice from the files.</p> <p>3. An objection to the introduction in evidence of a subsequent article published by the defendants, containing a letter from the plaintiff demanding a retraction, which was refused, was properly overruled.</p> <p>4. Evidence that the plaintiff had liquor in the school, and gave it to the pupils, unless supplemented by proof connecting such facts with the acts charged against him in the article complained of, was properly excluded.</p> <p>5. The constitutional provision (article 6, § 25) that, in all prosecutions for libel, the jury shall have the right to determine the law and the fact, does not deprive the trial judge of the power to rule upon 'the introduction of evidence in libel cases, either civil or criminal.</p> <p>6. In an action for libel only the general reputation of the plaintiff can be shown in mitigation of damages.</p>

(Padgham, J., presiding.) Bill to set aside assignments of certain notes and mortgages. Defendants appeal. The facts are stated in the opinion.

<p>Appeal from Yan Burén. (Buck, J.)</p> <p>Bill for partition. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Money had and received — Payment by giving credit — Parties— Pleading — Abatement.</p> <p>Defendant, who was a member of a firm engaged in the sale of agricultural implements, and a stockholder and director in a corporation which manufactured such implements, by means of false and fraudulent statements, induced plaintiff to purchase a threshing machine of said corporation, he paying the sum of $100 thereon. The corporation, on learning of the fraud practiced upon the plaintiff, repudiated the sale, and gave defendant’s firm credit on account for the amount so paid on the purchase price, and allowed the same in a subsequent settlement. Between the date of such credit and the time of settlement, the assets of the firm were absorbed by a corporation which succeeded to its business, and defendant denied any knowledge of the entry of such credit before the settlement. In a suit brought by the plaintiff against the defendant for money had and received, the defendant sought, under the plea of the general issue, to rely upon the fact that the money was credited to the firm, and not to himself. And it is held:</p> <p>a — That; if the defendant desired to make such a defense, he should have pleaded the non-joinder of his copartners in abatement, and that he could not raise the question under the plea of the general issue.</p> <p>b — That the jury.should have been instructed, as requested by the plaintiff, that, plaintiff having paid the $100 to the corporation on account of the purchase of the machine, if they found “that the corporation relinquished the sale, and returned the $100 to the defendant, or to the firm of which he was a member, their verdict should be for the plaintiff.</p>

<p>Fixtures — Landlord and tenmit — Conversion.</p> <p>Plaintiff purchased from a tenant a building which he had erected upon the leased premises under a lease which provided for the conveyance of the land to him on the payment of a given sum before the expiration of the lease. Plaintiff entered into pos- . session, with the knowledge of the lessor, who agreed to give him a new lease, which she did after the expiration of the first lease. After receiving said lease, the plaintiff sublet the land and building. The lessor subsequently conveyed the land to another party, to whom plaintiff paid the ground rent. After the expiration of his lease, plaintiff requested permission to remove the building, which was refused, whereupon he brought suit in trover to recover its value. And, in affirming a judgment in his favor, it is held: a — That the building became no part of the realty, and that the first lessee had the right to remove it at any time before the lease expired; citing Kerr v. Kingsbury, 39 Mich. 150.</p> <p>b — That the contention that, because said lessee had the privilege of buying the land within five years if he chose, it is to be conclusively presumed that the building was placed on the land with the intention of permanently annexing it to the freehold, is untenable; that the lessee still retained his option to purchase after, as well as before, the erection of the building, and, if he elected not to purchase, it was his privilege to remove the building as personal property at any time before the expiration of his lease; that it appears from the findings of fact that, when the building was erected, it was the lessee’s intention, if his business should prove satisfactory, to purchase the land, but, in case he should not prefer so to do, to remove the building; and that, under these circumstances, the building did not become a part of the realty; citing Manwaring v. Jenison, 61 Mich. 117. \</p>

<p>Equity — Rescission of deed — Parent and child — Undue influence.</p> <p>Complainants, as two of the five heirs of their mother, filed a bill to set aside a quitclaim deed given by them'to their father of their interest in a farm which he purchased and paid for, but the legal title to which was taken in the name of their mother, and of which she died seized. The bill charges that the deed was never intended to pass title; that it was given by complainants upon the representation by their father that one of their sisters ‘ had agreed to quitclaim her interest in the land for a given sum, a large portion of which she had received, but that she refused to execute a deed unless complainants released their interest, and that he desired their deed to show to their sister, and thereby induce her to perform her ¿greement, and that, after using it for that purpose, he would destroy the deed. And it is held that, while equity usually refuses to aid parties to such transactions, the evidence in this ca'se tends to show a degree of ascendency over the complainants, growing out of the parental relation, which, together with the circumstances under which they lived (complainants, although of full age, living with their father at the time), puts the case upon a little different footing from those where the parties are equals; that the circuit judge, who saw the witnesses, was impressed by the fact that, as between the parties, the equities were strong in favor of the complainants, and the Court are not disposed to disturb his decree.</p>

(Simpson, J.) Bill for the specific performance of a land contract. Defendant' appeals. The facts are stated in the opinion.

(Moore, J.) Bill to charge the estate of infants with necessaries furnished to their guardian. Complainant appeals from decree sustaining demurrer. The facts .are stated in the opinion, and in 91 Mich. 270.

<p>Appeal from Ingham. (Person, J.)</p> <p>Bill to restore a lost deed. Defendant Frank J. Haslett appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Conversion — Sale by landlord — Right of entry to remove property.</p> <p>1. The fact that one’s property is upon the land of another does not deprive him of the right to its delivery at a seasonable time and place, or an opportunity to enter and take the same; and captious refusal to deliver, especially if followed by appropriation or wanton destruction of the property, would amount to a conversion.</p> <p>So held where the owner of a farm, after leasing it, sold two stacks of straw on the farm, and, after the purchaser had taken away a portion of the straw, the tenant unconditionally refused to allow him to remove the remainder, and later burned and destroyed what was left in one of the stacks, and the purchaser sued him in trover for its value.</p> <p>2. Whether the purchaser attempted to remove the straw at unsuitable times, and therefore was lawfully prevented, or whether the defendant unlawfully converted the straw to his own use, should have been submitted to the jury.</p>

<p>Error to Van Burén. (Buck, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Carriers — Ejection of passenger — Instructions—Damages.</p> <p>1. Where the circuit judge, in charging the jury, incorrectly states the theory of the plaintiff, and, on his attention being called to the matter, corrects the erroneous statement, and makes it conform substantially to the plaintiff’s claim, the plaintiff is not injured by the statement complained of.</p> <p>2. The rule laid down in Sheahan v. Barry, 27 Mich. 217, 227,— that the use by the circuit judge, in his charge, of language which may lead the jury to infer that the court has little confidence in the testimony of the plaintiff, is not error if they are fully informed and understand that they are not bound to follow the views of the court, but have the right and are in duty bound to decide for themselves, — is not to be 'extended to cases where the instruction implies a duty on the part of the jury to yield their judgment to that of the circuit judge.</p> <p>3. It is reversible error for the circuit judge, in a personal injury case, to instruct the jury practically that the plaintiff has not sustained serious injury, his testimony to the contrary notwithstanding.</p> <p>So held where -the circuit judge stated to the jury that the plaintiff claimed that he was seriously injured, and incapacitated for work, and that he was a well man before receiving the injury, and never had to take medicine; that, as against this claim, was the testimony of two witnesses who testified that the plaintiff took treatment in their presence time after time, and complained of being ill, and stated that he intended to quit the business in which he was engaged because of poor health; that the latter evidence tended to show that plaintiff’s testimony was not true; and, further, that the case was not a very serious one, and would not justify very large damages, and that a verdict for any very substantial amount would not stand at the hands of the court.</p>

<p>Error to Saginaw. (Edget, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Ingham. (Person, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

Case made from Benzie. (Aldrich, J.) Appeal from the allowance of a claim against the estate of the decedent. Defendant assigns error. The facts are stated in the opinion.

Case made from Benzie. (Aldrich, J.) Appeal from the allowance of a claim against the estate of the decedent. Defendant assigns error. The facts are stated in the opinion, and in Gambs v. Estate of Sutherland, ante, 355.

<p>Error to Wayne. (Hosnier, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

(Donovan, J.) Relator applied to the circuit court for mandamus to compel the public lighting commission of Detroit to submit to the common council, for its approval or disapproval, certain contracts entered into by the commission for the purchase of appliances incident to the establishing of a public lighting plant. Relator brings certiorari to review order denying the writ. The facts are stated in the opinion.

<p>Susband and ivife — Divorce—Settlement—Release of dower — Fraud and duress.</p> <p>1. A contract by which a wife releases her right of dower to her husband is valid; citing Dakin v. Dakin, 97 Mich. 284.</p> <p>2. Pending a suit for divorce instituted by the defendant against the complainant, a contract was entered into, pursuant to . which defendant discontinued his suit and paid $600 to complainant, and she released all property rights growing out of the marriage relation. Subsequently she filed a bill for divorce, and he, relying on the settlement, made no defense, and a decree was entered in her favor. Complainant thereafter filed a bill to set aside the contract of settlement so far as it related to her right of dower, alleging that the same was obtained by fraud and duress. And it is held that, the solicitors and counsel who negotiated and effected the settlement being attorneys of great experience, undoubted probity, and high standing in the profession, there being no concealment of any facts, and the terms of the settlement being clear and unmistakable, the decree dismissing complainant’s bill must be affirmed.</p>

<p>Trespass to the person — Intent—Contributory negligence — Opening to jury.</p> <p>1. Where in an action of trespass for the throwing of a stick by the defendant, which struck the plaintiff, the right of recovery is made to depend upon an intention on the part of the defendant to hit somebody, and to inflict an unwarranted injury upon some one, the fact that the injury resulted Oto another than was intended will not relieve the defendant from liability.1</p> <p>2. In a suit by an infant plaintiff for an injury inflicted upon.bim by the defendant, the attorney for the plaintiff, in his opening to the jury, stated that the subject-matter of the suit had been submitted to arbitration by the plaintiff’s father and the defendant, and that a certain compensation for the trespass alleged to have been committed had been agreed upon, and repeated the proposition in his offer of testimony. The offered testimony was excluded, and the circuit judge not only specially cautioned the jury not to take the matter into account, but further defined the issues with exceptional clearness in his charge. And it is held that the ruling was proper, but that the Court are not prepared to say that the statement of counsel was intended by him to influence the jury improperly, or that, under the circumstances, it had that result; and that the case falls within the rulings in Daniels v. Weeles, 90 Mich. 190; Kirchner v. Railway Co., 91 Id. 400; Prentis v. Bates, 93 Id. 234.1</p>

<p>Appeal irom St. Clair. (Vance, J.)</p> <p>Bill to cancel a mortgage. .Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Bills and notes — Negotiability—Fraud—Bona fide holdei — Burden of proof — Instructions to jury — Foreign statutes and reports — Evidence—Appeal—Error without prejudice.</p> <p>1. The erroneous exclusion of questions put to the plaintiff on his cross-examination is not prejudicial where he is asked the same questions when called in rebuttal, and the answers desired by the defendant to the excluded questions are drawn from the witness.</p> <p>2. Where, in a suit upon negotiable notes, which the defendant claims were procured by fraud, there is no evidence tending to show that the plaintiff was guilty of any fraud in their purchase, or to contradict his statement that he bought the notes in the usual course of business, paying value therefor, the defendant is not prejudiced by an instruction which, standing alone, might leave the jury with the impression that the burden of proof was upon him to show want of good faith on the part of the plaintiff in the purchase of the notes, it appearing that the correct rule as to the necessity of the plaintiff’s showing good faith, and want of notice of any imperfection in the paper, after the defendant had shown fraud in its inception, was clearly given to the jury.</p> <p>3. The statutes and reports of the courts of another state are admissible in evidence under How. Stat. §§ 7508, 7509, as proof of the negotiability of notes executed in said state.1</p> <p>4. The oases of Lauferty v. Johnson, 17 Ill. App. 549, Jones v. Hubbard, 17 Id. 564, and Wolff v. Dorsey, 38 Id. 303, 305, fully establish that an instrument by which the signer, for value received, promises to pay on a designated day to the order of the payee a certain sum, with annual interest according to certain coupons attached thereto, and which provides that, if any part of the principal or interest remains unpaid at maturity, it shall bear interest at an increased rate, payable semi-annually, and that if any interest remains unpaid 20 days after due the principal shall become due and collectible at once, without notice, at the option of the holder, and for the payment of attorney’s fees if suit is brought to collect principal or interest, and which states that both principal and interest are secured by a mortgage deed, which constitutes a first lien on real estate in another state, — is, according to the law of Illinois, negotiable.1</p> <p>5. Where the statutes and reports of the courts of another state are received in evidence as proof of the negotiability of certain instruments executed in that state, it is proper that the circuit judge should construe the testimony, and instruct the jury as to its effect.</p> <p>6. Where a specific objection to testimony as not admissible under ' the declaration is sought to be raised for the first time on appeal, and the defect in the declaration, if any, could have been easily cured by amendment if the objection had been made when the testimony was offered, the objection cannot avail.</p>

(Buck, J.) Relator applied to the circuit court for mandamus to compel respondent, a druggist, to allow relator to examine the book containing a record of sales of liquor. Respondent brings certiorari to review an order granting the writ. The facts are stated in the opinion.

<p>Error to Jackson. (Peck, J.)</p> <p>Trover. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Relator applied for mandamus to compel respondent to vacate a judgment in favor of the defendant for costs ‘in an action of trespass qu. cl. The facts are stated in the opinion.

<p>Error to Bay. (Cobb, J.)</p> <p>Assumpsit. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Relator applied for mandamus to compel respondent to permit him to file an amended declaration. The facts are stated in the opinion.

<p>Appeal from Mecosta. (Palmer, J.)</p> <p>Bill in aid of execution. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

• Error to recorder's court of Detroit. (Chambers, J.) Eespondent was convicted of attempting to commit the crime of larceny from the person, and sentenced to imprisonment in the State prison for 28 months. The facts are stated in the opinion.

Mandamus. Relators applied for mandamus to compel respondent to entertain jurisdiction of proceedings for the discovery of the assets of a judgment debtor, instituted under chapter 278, How. Stat. The facts are stated in the opinion.

<p>Written contract — Order—Parol evidence.</p> <p>A written order for the insertion in a designated paper, published by the orderee, of an advertisement for a given time, at a stated price, which the orderer agrees to pay at a specified date, contains all the indicia of a contract, except that it is not executed by b'oth parties, and parol evidence of a contemporaneous agreement that, if the advertisement did not suit, it could be discontinued at any time, is inadmissible to vary the terms of the order.</p>

<p>Constitutional law — Arrest ivithout warrant — Due process of law —False imprisonment — Inconsistent verdict.</p> <p>1. The provision of the charter of the city of Grand Rapids which authorizes police officers to arrest without process all persons who shall, in the presence of the arresting officer, be engaged in the violation of any ordinance of the city, is constitutional.1</p> <p>2. Where a superintendent of police directs a member of the police force to make an arrest without warrant, and, in a suit for false imprisonment brought against him and the officer making the arrest, a verdict is rendered in favor of such officer and against such superintendent, from which he appeals, his contention that the verdict against him should not be allowed to stand because of the inconsistency of the verdict should be overruled.</p>

Mandamus. Relator applied for mandamus to compel respondent to issue an injunction restraining the prosecution of certain garnishment proceedings. The facts are stated in the opinion, and in Baldwin v. Circuit Judge, ante, 119.

<p>Error to Schoolcraft. (Steere, J.)</p> <p>Negligence case. Plaintiff brings error.</p> <p>The facts áre stated in the opinion.</p>

<p>Mechanic's lien — Pleading—Amendment—Terms.</p> <p>1. Section 10 of Act No. 179, Laws of 1891, which provides that proceedings to enforce a mechanic’s lien under said act shall be by bill in chancery under oath, and that amendments may be made to such bill at any time before final order, does not divest the court of the power to impose terms upon granting an application, made upon the day assigned for hearing and before any testimony has been taken, for leave to amend a bill filed against a husband by making his wife, who is the owner of the land on which stands the building upon which the labor was performed, a co-defendant.</p> <p>2. The matter of terms in such a case is within the discretion of ■ the trial court, which discretion is held not to have been abused by the making of an order requiring, as a condition to such amendment, that within' 20 days the complainant file a bond for security for costs in a penalty of $200, and pay a solicitor’s fee of $15, and witnesses’ fees to be taxed, and in the event of his failure to file said bond and amended bill, and otherwise comply with said order, that the bill be dismissed.</p>

<p>Error to "Wayne. (Donovan, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion, and in 94 Mich. 563.</p>

<p>Error to Iron. (Stone, J.)</p> <p>Replevin. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Real-estate agent — Middle-man—Commission.</p> <p>A real-estate agent who acts as an intermediary between a landowner and a prospective purchaser must at least act in good faith, and cannot be allowed to attempt to extort a price from one principal not demanded or required by the other, and then be entitled to a commission as for a service.</p>

<p>Conversion — Sale—Agency.</p> <p>1. Where a person becomes sole agent for the sale of specific articles which he only obtains by purchase, the agency begins ' and ends with the exclusive privilege of handling the goods in the allotted territory.</p> <p>2. Plaintiff is a book publishing company, and sues in trover for the conversion of copies of a certain book which defendant had engaged to canvass for and sell in certain designated territory, and of certain moneys received on such sales. The contract between the parties consisted of certificates of agency and of agreement- signed by the respective parties. The certificate of agency stated that the defendant was appointed general agent for the sale of the book in certain territory; that he was required to sell it at the regular printed prices, except as stated in the certificate; that he was to be allowed a discount of SO per cent, from the printed subscription prices as his commission for soliciting and delivering; that all books undelivered might be returned within three months from time of shipment, if in good condition, at the prices charged, and the same would be credited to the defendant; that the defendant would not be permitted to dispose of his agency, or the territory allotted him, without written permission from the plaintiff. In a postscript attention was called to the number of agents canvassing for the book, and the impossibility of ascertaining in regard to the responsibility of names offered as security, and it was suggested that the defendant remit funds with orders, or that he could have the books forwarded by express, C. O. D. In the certificate of agreement the defendant obligated himself, in consideration of his appointment as general agent, to canvass the territory allotted him, and none other, to devote his entire time to such canvass, and to report from week to week his success. Before shipping the books on defendant’s order a guaranty of payment was required, which defendant gave, and the books were thereupon shipped, and in default of payment this action was brought as before stated. And it is held that the title to the ' books passed to the defendant, and that he cannot properly be held for unlawful conversion of the same, or of the money for which he may have sold them.</p>

<p>Error to Wayne. (Brevoort, J.)</p> <p>Assumpsit. Defendants bring error.</p> <p>Reversed.</p> <p>The facts are stated in 95 Mich. 36.</p>

<p>Pleading — Assumpsit by assignee — Averment of promise.</p> <p>Where a declaration in a suit by one partner on an account for goods sold and delivered to the defendants by the firm, which has been assigned to him by his copartner, avers the sale and delivery of the goods, the assignment of the account, the promise of the defendants to the firm to pay the account, and their failure to pay as agreed either the firm or the plaintiff, a demurrer on the ground- that the declaration should have averred a promise by the defendants to pay the plaintiff cannot be sustained.1</p>

Knight, circuit court commissioner, resulting in the transfer of a cause from Macomb to Wayne county for trial. The facts are stated in the opinion.

<p>Error to Bay. (Maxwell, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are 'stated in the opinion.</p>

<p>Appeal from Kalamazoo. (Buck, J.)</p> <p>Bill to remove a cloud from title. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Deed — Consideration—Life support — Bill to rescind,</p> <p>1. Children who contract for the care, ease, comfort, and convenience of aged parents, with the full knowledge of their infirmities, cannot be heard to plead those infirmities as an excuse for a failure to carry out the contract, especially where the evidence of bad faith and overreaching on the part-of the children is abundant.</p> <p>2. Complainants filed a bill to set aside a deed of their farm to their grandson, made in consideration of his agreement to provide for them a comfortable life support, to insure his life in a given sum for their use and benefit, and to assume a certain obligation of the grandfather for $100, and any accrued interest, in favor of his daughter. Complainants were old and feeble, and the defendant made false representations to them as to his financial ability to perform his contract. He sent his father and mother and sister, who were dependent upon him, to live on the farm, with a view of his relief from their support, rather than with reference to any benefit his grandparents should receive from their presence. His father, who had been intemperate in his habits, and who had reformed, soon demonstrated that his reformation was not permanent, and not only proved to be a nuisance about the farm, but abused complainants. And a decree setting aside said deed is affirmed.</p>

<p>Exceptions before judgment from Grand Traverse. (Corbett, J.)</p> <p>Respondent was convicted of an assault with intent to commit the crime of murder. Conviction set aside, and new trial ordered. The facts are stated in the opinion and in the foot-notes.</p>

<p>Adverse possession — Right of entry — Tenants in common — Life estate — Payment of taxes — Estoppel.</p> <p>1. One who purchases an undivided interest in lands, and enters as a stranger to the rights of his cotenants, is not estopped from setting up as against them an adverse title that originated 'before his purchase; citing Blackwood v. Van Vleit, 30 Mich. 118; Campan v. Dubois, 39 Id. 274; Sands v. Davis, 40 Id. 14.</p> <p>2. Where the owner of a life estate and of an undivided interest in the fee of land permits an adverse claimant to remain in undisturbed possession until such possession ripens into a valid title, neither he nor his grantees can separate his interests in the land, under the plea that, as to some of them, he had not the right of entry.</p> <p>3. There can be no adverse possession against one whose right of entry is not complete; citing Cook v. Knowles, 38 Mich. 316; Marble v. Price, 54 Id. 466.</p> <p>4. Where, by reason of the failure of a life tenant to pay valid taxes assessed against the land, it is sold under valid proceedings, title passes to the purchaser, and the only remedy of the remainder-man is against the owner of the life estate.</p> <p>5. It is the duty of the holder of a life estate to pay all taxes that may be assessed upon the land subsequent to the creation of the estate, though before' he became the owner thereof; and, neglecting this duty, he cannot assert an adverse claim founded upon tax titles issued by reason of such default.</p>

(Grove, J.) Appeal by creditors from tbe allowance of tbe personal account of Harvey Joslin, assignee of Henry M. Goebel, insolvent. The facts are stated in the opinion.

<p>Certiorari -to Lapeer. (Moore, J.)</p> <p>Plaintiffs bring certiorari to review proceedings dissolving an attachment.</p> <p>The facts are stated in the opinion.</p>

(Buck, J.) Appeal from the allowance of a claim by commissioners. The estate brings error. The facts are stated in the opinion.

(Gage, J.) Bill to restrain the issuance of certain bridge bonds. Complainant appeals. The facts are stated in the opinion, and in Tillotson v. City of Saginaw, 94 Mich. 240.

Clair. (Vance, J.) Defendants bring certiorari to review an order adjudging them guilty of contempt in refusing to comply with an order of the court requiring the payment of costs as a condition to a continuance. The facts are stated in the opinion.

(Cobb, J.) Bill to foreclose a mortgage. Claimants Hagerty and Smith appeal from a decree determining the title to certain of the proceeds. The facts are stated in the opinion, and.in 91 Mich. 342.

<p>Error to Wayne. (Gartner, J.)</p> <p>Debt on administrator’s bond. Defendants Joslyn and Palmer bring error.</p> <p>The facts are stated in the opinion and in 92 Mich. 211.</p>

<p>Error to Wavne. (Hosmer, J.)</p> <p>Case. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Wayne. (Brevoort, J.)</p> <p>Case for libel. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

(Stone, J.) Claim against the estate of decedent. Defendant brings error. The facts are stated in the opinion, and in 96 Mich. 103.

<p>Mistake — Land contract — Reformation—Laches—Statute of frauds.</p> <p>1. There is a conflict in the books upon the question of the effect of the statute of frauds upon the jurisdiction of courts of equity to reform instruments made in pursuance of oral agreements, where the correction sought is the addition of lands to those described; but, whatever may be the rule where nothing has been done under the oral agreement, in this country the overwhelming weight of authority supports the jurisdiction where part performance is shown sufficient to warrant a specific performance under an oral contract.</p> <p>2. The jurisdiction of a court of equity to correct a written contract for the sale of standing timber by adding thereto the descriptions of certain'lands which were covered by the oral negotiations for the sale of the timber, but which were, by the mutual mistake of the parties, omitted from the written contract, is sustained; it appearing that, before the omission was discovered, a payment had been made on the contract, and the purchaser had proceeded to lumber the lands not in dispute.</p> <p>3. The claim that a mistake had been made was asserted as soon as the mistake was discovered, and the claim was insisted on at all times thereafter. Suit was not immediately commenced, but complainant never gave the defendants reason to suppose that it had abandoned or intended to waive its claim, and no injury resulted to the defendants from the delay. And it is held that complainant was justified in exhausting persuasion before resorting to litigation, especially in view of the repeated admissions of the president of the vendor corporation, who negotiated the sale of the timber in its behalf, that he understood that the omitted lands were a part of the contract.</p>

<p>Joint tenancy — Execution,</p> <p>The individual interest of one of two joint tenants is subject to-levy and sale upon execution against such tenant.</p>

<p>Error to Wayne. (Frazer, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion. •</p>

<p>Chattel mortgage — Subrogation— Tender — Assignment—Insecurity clause — Sale.</p> <p>1. A tender by a second mortgagee of the amount secured by the prior mortgage, if accompanied by a demand for an assignment not only of the mortgage, but of certain notes of the mortgagor upon which the owner of the first mortgage is indorser, and to which the second mortgagee has no right, will not discharge the lien of the first mortgage.</p> <p>2. Where the refusal t<j give a request to charge is justified, but the court, in connection with such refusal, instructs the jury that a certain fact exists which is not shown by the evidence, and error is assigned only upon the refusal to give the request, the erroneous instruction, though prejudicial, does not afford a basis for relief.</p> <p>3. A chattel mortgage is a chose in action, and the proper subject of assignment; and the assignee has the right to direct a sale of the property pursuant to notice of foreclosure given by the assignor prior to the assignment.</p> <p>4. A clause in a chattel mortgage, which contains the usual power of sale, authorizing the mortgagee, at any time when he shall think himself insecured, to take possession of the mortgaged property, and then to dispose of the same in the manner specified in the mortgage, or in such other manner as he thinks best, gives the right, in case of a seizure thereunder, to sell at once, and before the maturity of the mortgage debt.1</p>

<p>Error to Jackson. (Peck, J.)</p> <p>Negligence case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

(Hosmer, J.) Bill to enforce a vendor’s lien under a land contract. Defendant Casgrain appeals. The facts are stated in the opinion.

<p>Error to Saginaw. (Edget, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Muskegon. (Diokerman, J.)</p> <p>Bill to foreclose a mortgage. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>