Volume 102 — Michigan Reports

<p>Evidence — Matters within knowledge of deceased, person — Resulting trust.</p> <p>1. 3 How. Stat. § 7545, which prohibits the “opposite party,” in a suit prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, from testifying at all to matters which, if true, must have been equally within the knowledge of" the decedent, applies to a party who files a bill to declare the title to land conveyed to the decedent in his lifetime to be in the complainant.1</p> <p>2. How. Stat. § 5569, which provides that when a grant for a valuable consideration shall be made to, one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person making such payment, but the title shall vest in the grantee, must be understood as applicable only to those cases in which the deed has assumed the form it has by consent of the party furnishing the consideration; citing Fisher v. Fobes, 22 Mich. 457; McCreary v. McCreary, 90 Id. 478.</p>

(Smith, J.) Bill to redeem from an execution sale, and to declare the validity of certain mortgages. Defendants appeal. The facts are stated in the opinion.

<p>Judgment — Res judicata — Evidence—Burden of proof.</p> <p>1. The record in a former suit between the same parties, which tends to show that any fact involved in the issue in the second suit was litigated and set at rest in the former suit, is competent evidence of that fact, although it may not be conclusive upon all of the questions involved in the second suit.</p> <p>2. When an action is sought to be maintained or defended by showing a former adjudication of questions upon which it depends, it must appear that such questions were litigated as a matter of fact; that they were submitted to and decided by the court or jury; and that they were not collateral inquiries, but crucial questions in the other controversy.</p> <p>3. Where the record does not contain the conclusive evidence as to such former adjudication, parol evidence is admissible to ascertain whether a given question was in issue, litigated, submitted, and decided, and possibly, in some cases, whether it was material; and in such event, under our system of pleading, the issue would not ordinarily be limited to the single question of such former adjudication, but the party would be at liberty to support his claim or defense by other evidence, which would be received subject to the effect that should be given to the evidence upon the question of such former adjudication.</p> <p>4. Where, in a suit upon a guaranty of rent, the défendant seeks to avoid liability by showing his release by the lessor, and the plaintiff introduces in evidence the record in a former suit brought by him against the defendant upon the same guaranty, in which he recovered a judgment for prior installments of rent, and it appears that the pleadings in said former suit were broad enough to cover said proposed defense, the burden of proof is upon the plaintiff to show that said defense was actually made and passed upon in the first suit.</p> <p>5. The defendant should be allowed to introduce his evidence tending to show his release, and, if the jury find that that question was litigated and passed upon in the former suit, they should disregard such evidence.</p>

<p>Appeal from Washtenaw. (Kinne, J.)</p> <p>Bill to set aside a trust deed. Defendant Burg appeals.</p> <p>The facts are stated in the opinion.</p>

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

<p>Landlord and tenant — Assault—Eviction,</p> <p>1. Where, in.an action of trespass for an alleged unlawful entry into leased premises by the wife and sons of the landlord, the question whether or not the oral lease under which the plaintiff’s husband held had terminated at the time of the entry is submitted to the jury, their finding will not be disturbed on appeal.</p> <p>2. Plaintiff and her husband were in possession of a house on the farm where the husband was at work, and, on the same day on which a notice to leave the premises was served on the husband, the wife and sons of the owner of the farm came to the house in the absence of plaintiff’s husband, and, after informing her that she must move out at once, commenced taking the furniture out of the room where she was into an old kitchen, and told her to pack her clothes, shortly after which her husband came, and took her away. Plaintiff sued the wife and sons in trespass, claiming that she was driven from the house by the defendants, and that the time for which her husband had taken the premises had not expired. The defense was that the hiring was only for one month, and that the time had expired. The court left this latter question of fact to the jury, and instructed them that, if they found that the hiring had not terminated at the time of defendants’ entry, they should take into consideration what took place in the house on that day; that the mere entry into the house by the defendants, under the circumstances, would not give plaintiff a right of action, even if the lease had not terminated, and, if plaintiff recovered, it must be for an injury to herself; and that the jury, in order to find a verdict for the plaintiff, must find that the conduct of the defendants amounted to an eviction. And it is held that the charge properly stated the law.</p>

<p>Slander — Parties—Misjoinder—Profit-sharing.</p> <p>1. It is not uncommon to allow employés to participate in the profits of the business, but such method of determining their compensation does not entitle them to join with the employer in an action for an injury to the business.</p> <p>2. A married woman purchased and established a milk and cream business, and constituted her husband her general agent and manager for a term of years, and agreed to pay him for his services $50 per month in advance, and five-eighths of the net profits of the business, to be calculated annually. And it is held that the husband had no property interests in the proceeds of the business, nor in the profits until an actual division of the same had been made, and that he was improperly joined with his wife in an action fqi- slander of said business.</p>

(Carpenter, J.) Defendant brings certiorari to review proceedings resulting in the reinstating of an attachment which had been dissolved by a circuit court commissioner. The facts are stated in the opinion.

<p>Appeal from Muskegon. (Russell, J.)</p> <p>Bill to compel a trustee to satisfy a judgment rendered on a note of the cestui que trust which the trustee purchased at a discount, and caused to be sued in the name of a third person, from the trust estate, at the sum paid for the note, and interest. Defendants appeal from an order overruling a general demurrer.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Berrien. (O’Hara, J.)</p> <p>Garnishment proceedings. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Fire insurance — Action on policy — Limitation—Commencement of suit — Summons—Amendment.</p> <p>1. Where a fire insurance policy provides that no suit or action thereon for the recovery of any claim shall be sustainable unless commenced within 12 months next after the fire, a suit cannot be maintained unless it is in fact commenced within the year specified in the policy; citing Steele v. Insurance Co., 93 Mich. 81; Law v. Association, 94 Id. 266; Lentz v. Insurance Co., 96 Id. 455.</p> <p>2. The commencement of suit in the circuit court by summons consists of suing out the summons, and delivering or transmitting it to an officer of the proper county, with the bona fide intention of having it served.</p> <p>3. A circuit court summons, issued on the day after the return-day of a former summons issued in the same case, which has not been returned, cannot be treated as an alias; citing Johnson v. Mead, 58 Mich. 71.</p> <p>4. One day prior to the expiration of the year limited for bringing suit upon a fire insurance policy, a summons was issued from the circuit court, and sent by the clerk to the attorneys for the plaintiff, who, through an oversight, failed to transmit it to the sheriff of the proper county for service. And it is held that the right of action was not saved by the issuance, one day after the return-day of said writ, of a second summons, tested as of the day of issuance of the first summons, and its service upon the insurance company.</p> <p>5. The fact that the first summons was not made returnable on the first Tuesday of any month, or on any day in term, is unimportant; and the clerk had no authority, on his own motion, to make so radical an amendment as was attempted by the issuance of the second summons.</p>

(Donovan, J.) Relator applied to tbe circuit court for mandamus to compel tbe respondent to give bim access to tbe files and records of all suits pertaining to real estate, to enable him to make abstracts of the same, to use in bis business of making and selling abstracts of title. Relator brings ■certiorari to review the order denying the writ. The facts are stated in the opinion.

<p>Error to Wayne. (Reilly, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated m the opinion.</p>

<p>Municipal corporations — Defective highways — Bight of action— Husband and wife.</p> <p>1. Municipal corporations, in Michigan, are liable for injuries resulting from their neglect to repair public highways only where made so by statute; citing City of Detroit v. Blackeby, 21 Mich. 84; McCutcheon v. Village of Homer, 48 Id. 483.</p> <p>2. The right of action given by 3 How. Stat. § 1446c, for injuries sustained from defective highways, etc., is confined to cases of bodily injury, and the statute in terms limits the recovery of damages to the person so injured or disabled; but, in case of his death, the right of action survives, under 3 How. Stat. § 7897, to his administrator; citing Baeho v. City of Detroit, 90 ■ Mich. 93.</p> <p>8. The words “other property,” as used in, 3 How. Stat. § 1446<3, which provides that if any horse or other animal, or any cart, carriage, or vehicle or other property, shall receive injury or ■ damage from defective highways, etc., the municipal corporation in fault shall pay the owner just damages, etc., being preceded by several words descriptive of particular hinds of property, are limited to things of a like kind.</p> <p>4. Loss to a husband of the services of his wife, and money expended for surgical attendance and nursing, while she is suffering from injuries received by falling upon a defective sidewalk, do not constitute an injury to “ other property,” within the meaning of 3 How. Stat. § 1446d, and the husband has no right of action under said statute for the same.</p> <p>5. 3 How. Stat. § 1446e, which makes it the duty of municipal corporations to keep in reasonable repair, so that they will be reasonably safe and convenient for public travel, all public highways, etc., that are within their jurisdiction and under their care and control and which are open to public travel, does not give a right of action to everybody because it imposes a public duty, but must be construed with 3 How. Stat. §§ 1446c, 1446d, which give certain rights of recovery for neglect to perform the duty thus imposed.</p>

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

<p>Error to St. Joseph. (Loyeridge, J.)</p> <p>Negligence case. Plaintiff brings error.</p> <p>The facts are stated in the majority opinion.</p>

<p>The facts are stated in the .several opinions.</p>

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

(Hart,. J.) Bill to foreclose a mortgage. Complainants appeal from a decree denying their petition for execution for deficiency. The facts are stated in the opinion.

<p>The facts are stated in the main opinion.</p>

<p>False imprisonment — Arrest without warrant — Probable cause.</p> <p>It was settled by the former decision:</p> <p>a — That this case forms an exception to the general rule that what constitutes probable cause to justify an arrest without a warrant is a question of law to be determined by the court.</p> <p>b — That when an officer, in making such- an arrest, acts in good faith, and after such reasonable investigation- as circumstances permit, he is not liable in damages, either actual or otherwise.</p>

<p>Bond to the jail limits — Inability of sureties.</p> <p>1. A jail-limits bond executed pursuant to the provisions of How. Stat. chap. 310, is given to the sheriff of the county in his official capacity, and stands as indemnity to his successor in office without any written assignment, and during its lifetime may be assigned by the sheriff in office to the party for whose benefit it was given, whenever a breach occurs.</p> <p>2. A jail-limits bond is in effect a substitute for the custody of the sheriff; and, after admitting the prisoner to the liberty of the jail limits, the sheriff has no longer any power over him, either to restrain or discharge him. -</p> <p>8. Section 5 of chapter 810, How. Stat., authorizes a sheriff who-shall have taken a jail-limits bond, upon discovering that any surety to such bond is insufficient, to commit the prisoner who executed the bond to close confinement in jail, until other good and sufficient sureties shall be offered. And it is held that whether the prisoner .is or is not in actual confinement when the other sureties are obtained cannot affect the validity of the bond.</p> <p>4. A judgment debtor, on being arrested on a body execution, gave a jail-limits bond. He was afterwards notified by the successor in office of the sheriff to whom the bond had been given that one of the sureties was insufficient, and that it would be necessary for him to procure a new bondsman. He thereupon took the bond, and secured the signature thereto-of an additional surety, and returned the bond to the sheriff. And it is held that the contention that the additional surety did not sign the bond under such circumstances as to bind him is without force.</p>

<p>Electric street railways — Negligence—Failure to have headlight— Injury to pedestrian — Contributory negligence.</p> <p>1. Where the ordinance under which an electric street railway is operated only requires that the cars “after sunset shall be provided with colored signal lights in front and rear,” the failure to have also a headlight or light attached to the dashboard of the car is not negligence per se.1</p> <p>2. The rule that one must look and listen before crossing the tracks of a steam railway is equally applicable to an electric street railway.</p> <p>3. Defendant operates an electric street railway in the city of Grand Rapids, and by ordinance is permitted to run its cars at a rate of speed not exceeding 15- miles per hour. Plaintiff, while attempting to cross defendant’s double tracks on South Division street, in the dusk of a dark and wet November evening, was struck by a south-bound car which was running from 7 to 15 miles per hour, and injured. The car carried five electric lights inside, and the colored signal lights in front and rear required by the city ordinance. Plaintiff, after leaving the street curb, walked a distance of about 14 feet before reaching the track, and he testified that during this time he had his eyes upon a car coming from the south, and did not expect a car from the north, which he could have seen had he looked in that direction. Plaintiff had lived in the vicinity of the accident for many years, and knew of the constant passage in both directions of defendant’s cars. And it is held that plaintiff was bound to know that the crossing was a place of danger; that he was bound to look both ways before getting upon the track; that it will not do to say that he acted prudently and carefully in looking before getting off the curb, and was therefore not bound to look again because he saw no car coming from the north at that time; and that a verdict should have been directed for the- defendant.</p>

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

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

<p>Contract — Sale—Condition.</p> <p>Plaintiff sold and delivered to the defendant a mare, upon his agreement that if, upon a trial of speed to be made by an agreed driver within 90 days, the mare should trot to pole as fast as a mare owned by the defendant, he would pay an extra $100 for the mare. The defendant, through no fault of the plaintiff or the driver, failed to have the test of speed made. And it is held that, while the parties agreed to abide by the driver’s decision as to the speed of the mare purchased of the plaintiff, yet such test was not a vital part of the contract, but only the means provided by the parties for ascertaining the speed of the mare; that the only condition upon which the payment of the $100 depended was that she could trot as fast as thei one owned by the defendant; that this fact was made to appear by the undisputed evidence in the case; and that the defendant cannot avoid liability on the ground that, by reason of the sickness of one mare and the lameness of the other, he was prevented from making the agreed test within the 90 days, he being the only person who had it within his power to have said test made.1</p>

<p>Money had and received — Proceeds of insurance policies — Set-off— Evidence — Promissory notes — Account stated — Presumption — Burden of proof— Estoppel.</p> <p>1. Where, in a suit by an administrator to recover moneys paid to the defendant upon policies of insurance held by defendant as security for loans made to the decedent (her son), the defendant seeks to set off a claim for the rent of a portion of a house which the decedent occupied in his lifetime, — the remainder being occupied by decedent’s father up to the time of his death, and afterwards by the defendant, — it is competent for the plaintiff, as tending to establish his claim that the occupancy of the house by the decedent was rent free, to show that the decedent had contributed largely to the construction of the house, and had, both before and after the death of his father, made expensive improvements and paid taxes upon the entire property, and that during the entire time of such occupancy the decedent paid no rent, nor was any claim for rent ever made upon him.</p> <p>2. The defendant exhibited a paper purporting to be a statement of the account between the decedent and 'herself, showing loans made by her to him at various times up to and including December 20, 1890, and also one of $2,000 made December 16, 1891, and aggregating, with interest charges, $15,515. It further appeared that on December 23, 1891, the decedent executed a note for $10,000 to the defendant, payable six months after date. Plaintiff testified that when he called upon the defendant in August, 1892, to inquire relative to the policies of insurance and the indebtedness of decedent to her, he asked defendant for a statement of said indebtedness, and she said she did not think she could giye it; that thereupon her son-in-law, who was present, stated that the defendant had á note for. $10,000 against the decedent, and that that should be sufficient to show the indebtedness. It further appeared that no moneys were advanced to the decedent by the defendant after December 20, 1890, until December 26, 1891, and that there was no new consideration for the $10,000 note, except the $2,000 loaned December 26, 1891, if that was a part of the consideration; and it was not pretended that the note was solicited for any purpose which the defendant had in view, except as evidence of the" indebtedness. And it is held that the note was prima facie evidence of an account stated between the parties; that the burden was upon the defendant to rebut the presumption; and that whether this presumption had been removed was, under the facts in this case, a question for the jury.</p> <p>3. There was testimony tending to show that the $2,000 received by the decedent December 26, 1891, was used to pay a demand which existed prior to December 23, 1891, the date of the note; that decedent had been, prior to December 26, 1891, making efforts to raise the money from other sources to meet said demand; and that the only claim made by the defendant after the death of the decedent and prior to the trial was the amount of the note. The plaintiff contended that the note embraced the $2,000 received after its date. There was no evidence as to the date of the delivery of the note. And it is held that the note is- presumed to have been executed and delivered on the day of its date, but that such presumption is-removable.</p> <p>4. One of the policies was payable to the defendant, and the court refused to allow the jury to charge her with the proceeds of this policy; but the jury found, in answer to a special question, that the policy was held by the defendant as security simply. And it is held that, it having been-agreed between the defendant and the decedent that the amount of said policy, when received, should be applied upon, and should pro tanto extinguish, decedent’s indebtedness to defendant, which agreement was valid, the defendant cannot be heard to say that the proceeds of said policy are not applicable to the payment of the debts of the decedent, nor can she offset ' the portion of said indebtedness thus extinguished against the moneys received on the other policies.</p>

(Chambers, J.) Eespondent was convicted of the crime of burglary, and sentenced to imprisonment in the State prison for seven years, The facts are stated in the opinion.

<p>Error to Clinton. (Daboll, J.)</p> <p>Case for slander. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

Exceptions before judgment from the superior court of Grand Rapids. (Burlingame, J.) Respondent was convicted of keeping his saloon open after hours. The facts are stated in the opinion.

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

<p>Error to Wayne. (Hosmer, J.)</p> <p>Replevin. Plaintiffs bring error,</p> <p>The facts are stated in the opinion, and in 88 Mich. 315.</p>

<p>Railroad companies — Accident at crossing — Evidence—Contributory negligence.</p> <p>1. Where the jury, in a negligence case against a railroad company, find specially that but one of the required statutory signals was given before crossing a country highway, the negligence of the defendant is established.1</p> <p>2. Where a witness, upon being asked on his cross-examination in regard to certain statements claimed to have been made by him at a given time and place contradictory of his testimony upon his direct examination, either denies making said statements or testifies that he does not remember making them, it is competent for the party so cross-examining, for the purpose of impeaching the witness, to introduce evidence^ tending to show that-he made said statements.</p> <p>3. Where a driver is unable to see an approaching train for a distance of 1281 feet from the crossing, it is contributory negligence for him to drive that distance, and attempt to cross the track, without stopping his team to listen.2</p> <p>4. It is contrary to good sense and the best-considered authorities that one may walk a team over a hard road for a distance of 128-J- feet, while he and his companion are efigaged in conversation, upon the- assumption that no train will appear while they are traversing that distance, or that, if a train does approach, they will hear the whistle or the bell. A traveler, under such circumstances, not only endangers his own life and property, but the lives and property of those on board the train, and he will not be permitted to say that, if the whistle had been sounded, hej would have heard it, it being his duty to stop the noise he is making, within a reasonable distance from the railroad track, and listen.</p>

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

<p>Error to Mackinac. (Pailthorp, J.)</p> <p>Ejectment. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Railroad' companies — Failure to purchase ticket — Penalty—Maximum rate of fare — Eviction of passenger— Damages.</p> <p>1. There is no valid objection to a railroad company’s charging an increased sum for passage where fares are collected on the train, provided that the sum collected does not exceed the statutory rate; but the company cannot impose, as a penalty for not purchasing a ticket before entering the car, such a sum that the fare collected on the train, including such additional amount, shall exceed the maximum allowed by law.1</p> <p>2. A railway passenger who either produces a ticket which, as between the conductor and himself, entitles him to passage, or stands ready to pay the fare legally demandable, can recover substantial damages for being evicted from the car on his refusal to pay an unauthorized demand.</p> <p>3. 3 How Stat. § 3333, subd. 9, which authorizes railroad companies to regulate the time and manner in which passengers and property shall be transported, and the tolls and compensation to be paid therefor, but provides that such compensation for transporting any passenger and his or her ordinary baggage, not exceeding a given weight, shall not exceed two, two and one-half, or three cents per mile, according to the gross earnings per mile of each road, will not permit a charge for á fraction of a mile, unless it is so large a fraction as to make the charge of one cent or more not in excess of the rate per mile fixed by the statute.</p>

<p>Appeal from Ottawa. (Padgham, J.)</p> <p>Bill to enforce a mechanic’s lien. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Sale — Delay—Recoupment—Implied warranty.</p> <p>1. In a suit brought by a contractor to recover the balance of the contract price due for an engine manufactured for the defendant for use on one of its fishing tugs, the defendant sought to recoup damages for the failure of the plaintiff'to complete the engine within the time agreed upon in the contract, and introduced testimony tending' to sustain its claim. The plaintiff’s testimony tended to show that the defendant agreed to bring the tug from the yard where it was being built to plaintiff’s dock in two weeks after the making of the contract, so that the engine could be placed in the tug, but that it was not so brought until more than three weeks had elapsed, and that plaintiff’s work was thereby delayed. And it is held that the plaintiff had a right to have the jury pass upon the question of said alleged delay, and that, if they found that it was caused by the failure to bring the tug to plaintiff’s dock within the time agreed upon, for such time the plaintiff was not to be charged with the delay, or damages in consequence of it.</p> <p>2. Plaintiff further contended that the delay in completing the tug, if any, was occasioned by the bhilder of the tug, in not having his work done in time, and by another party, who did not complete the putting up of the smokestack in time. And it is held that the plaintiff could be held liable for its delay only, and not for the delay of the builder or the party who had contracted to put up the smokestack.</p> <p>8. After the engine had been used for a time, the shaft was broken, and the defendant claimed to recoup damages for the expense of putting in a new shaft. Upon examination, the shaft put in by plaintiff was found to have one or more flaws in the material from which it was made. And it is held that the request of the plaintiff for an instruction that the plaintiff, in the absence of a warranty of the engine, could not be held responsible for the breaking of the shaft if the break was due to interior seams or defects, not known to the plaintiff, and which could not have been discovered by an examination of the shaft, should have been given.</p> <p>4 Testimony was introduced tending to show that, after the plaintiff had commenced to build a pump in accordance with the contract, the engineer in charge of the tug, and who had been given authority by the defendant to oversee the work, and under whose directions the plaintiff had been directed to work, stated that he did not wish that kind of a pump, and the one in controversy was then made, under the orders and directions of said engineer. And it is held that the jury should have been instructed, as requested by the plaintiff, that, if they found the aforesaid facts, the 4defendant had no right to complain because the pump built differed from the one called for by the contract, and that the shipping of the pump back to the plaintiff would not entitle the defendant to make any claim therefor, if plaintiff declined to receive it.</p>

<p>Riparian rights — Navigable lake.</p> <p>1. Unless the contrary appear, a grant of land bounded by a watercourse conveys riparian rights, and the title of the riparian owner extends to the middle line of the lake or stream.</p> <p>2. A boundary line may be so described as to preclude the extension of the grant by construction to the center of the stream. When it is said that meanders have no significance as boundaries, what is meant is that they do not preclude such extension of the grant.</p> <p>8. The shore proprietor takes by virtue of shore ownership. His interest in the bed of the stream he acquires as appurtenant to the grant, and the extent of that interest depends upon his frontage, and the form, length, and breadth of the body of water upon which he abuts; and the fact that a lake may be of such form as to render the designation in it of the boundaries of the several riparian owners somewhat difficult is not an objection to the application of the rule.</p> <p>4 The rule laid down in Clute v. Fisher, 65 Mich. 48, that the owner of a fractional subdivision of land, made so by an inland lake, owns the soil under the water of said lake which would be included within the subdivision if its lines were fully extended, is inconsistent with the rule, repeatedly laid down in this State, that the shore proprietor owns to the thread or center of the stream, and with the rule announced in Clark v. Campan, 19 Mich. 328, and Gas-IAght Co. v. Industrial Works, 28 Id. 182, that side lines are to be governed by the course of the stream, and the submerged land bounded by lines drawn at right angles with the central thread, rather than at right angles with the shore at the point of departure; and, while a correct result was reached in the Clute case, the reasons given are without support.</p>

(Steere, J..) Relator applied to the circuit court for a mandamus to ■compel respondent to issue a warrant for the arrest of a person charged with the violation of a rule adopted by the State Board of Health under Act No. 47, Laws of 1893, and brings certiorari to review an order denying the writ. The facts are stated in the opinion.

<p>- Appeal from Grand Traverse. (Eamsdell, J.)</p> <p>Bill to construe a will. Defendant Marshall appeals.</p> <p>The facts are stated in the opinion.</p>

(Kinne, J.) Quo warranto to test the title of respondent to the office of township treasurer of the township of Berlin. Respondent brings error from judgment of ouster. The facts are sufficiently stated in the opinion.

<p>Appeal from Wayne. (Hosmer, J.)</p> <p>Bill to restrain the collection of taxes. Defendants appeal.</p> <p>The facts are 'stated in the opinions.</p>

(Person, J.) Petition for the surplus arising on the foreclosure of a mortgage by advertisement, or for the use of the same during the life of the petitioner. Defendant appeals. The facts are stated in the opinion.

(Daboll, J.) Bill to determine the rights of complainant under an assignment of certain leases as security. Defendant Ella DeMay appeals. The facts are stated in the opinion.

<p>Nuisance — Discharge of fuel oil into public sewer.</p> <p>1. The percolation of deleterious matter, from the premises of the party who suffers it, through the soil, upon the lands of an adjacent owner, to the injury of the latter, is an actionable nuisance.</p> <p>2. Defendant kept upon its premises, for use, fuel oil. Plaintiff operated a bakery 500 feet distant, and sues for damages occasioned to his business by the leakage of the oil upon defendant’s premises, its flow through the soil into a common sewer, the escape of the gases through a manhole in the immediate vicinity of the bakery, affecting the .atmosphere in the neighborhood, and through the sewer connections into and upon plaintiff’s premises, injuring the products manufactured by him. The city ordinance prohibited the deposit of any refuse, drippings, or nauseous liquid or other substance from distributing pipes or gas conductors into any sewer. And it is held that, in view of the ordinance, it cannot be said that the sewer was constructed by the city to carry away the oil, or that such a use was invited, or was even permissive; that the nuisance which the ordinance aims to prevent does not depend upon the intent of the party causing it, and the fact that the deposit of the oil was negligent, or even accidental, did not make such use of the sewer lawful.</p>

<p>Eire insurance — Location of property — Removal—“Contents” of building.</p> <p>1. A farmers’ mutual fire insurance company insured a farm barn and its contents, without specifically describing the contents. Over eight years after the issuance of the policy, which had been kept in full force, the insured erected a new barn on another part of the farm, in which he stored the hay and unthreshed wheat raised on the farm that year, as also a portion of his tools and farming implements. The company had no notice of the erection of the new barn, or of the removal ' of the property. The barn and its contents were destroyed by fire. And it is held that the company is not liable for the contents of the barn, the permanent storage of the property in another building than that named in the policy having withdrawn it from the protection of the policy; citing Lyons v. Insurance Co., 14 R. I. 109; English v. Insurance Co., 55 Mich. 273.1</p> <p>2. The term “stack” has a well-defined meaning, and cannot be said to include unthreshed wheat in a mow in a barn.</p>

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

<p>Error to Cass. (O’Hara, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion, and in 84 Mich. 549.</p>

<p>Error to Saginaw. (Hart, J., presiding.)</p> <p>Negligence case. Plaintiff brings error.</p> <p>The facts are stated in the opinions.</p>

<p>Error to Berrien. (O’Hara, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

(Person, J.) Respondent was convicted of perjury, and sentenced to imprisonment in tbe State House of Correction and Reformatory at Ionia for two years. The facts are stated in the opinion.

Mandamus. Belator applied for mandamus to compel respondent to set aside an order dismissing its petition for the establishment of permanent dock, safety, sanitary, and building lines along the shores of Grand river. The facts are stated in the opinion.

<p>Constitutional law — Taxation of corporations — Interstate commerce.</p> <p>Act No. 79, Laws of 1893, which requires every foreign corporation or association permitted after the passage of said act to transact business in this State, which had not, prior to' the passage of said act, filed or recorded its articles of association under the laws of this State, and been thereby authorized to do business therein, to pay a designated franchise fee, and voids all contracts made in this State after January 1, 1894, by any foreign corporation not complying with said act, does not apply to foreign corporations whose business within this State consists merely of selling through itinerant agents, and delivering, commodities manufactured outside of this State.1</p>

Mandamus. Delator applied for mandamus to compel respondent to vacate an order sustaining a challenge to the jury array interposed in a cause pending before him. .The facts are stated in the opinion.

<p>Error to Chippewa. (Steere, J.) .</p> <p>Assumpsit. Defendant brings error.</p> <p>Tbe. facts are stated in tbe majority opinion.</p>

(Lillibridge, J.) Eelator is a member of the board of fire commissioners of the city of Detroit, and the president thereof.

Motion to set aside stipulation dismissing suit. Defendant recovered a judgment for costs against plaintiff in the circuit court for Calhoun county, and plaintiff removed the cause by writ of error to the Supreme Court. Before the cause was submitted, a stipulation was entered, signed by defendant and by plaintiff’s attorney, dismissing tbe suit without costs to either party.

(Coolidge, J.) Gertiorari to review proceedings for the removal of the county seat of Berrien county from Berrien Springs to St. Joseph. Defendant brings error. The facts are stated in the opinion.

(Maxwell, J'.) Bill for injunction. Complainants appeal from decree sustaining demurrer. The facts are stated in the opinion.

(Burlingame, J.) Bill to vacate an assessment for local improvements, to enjoin the execution of a deed on a sale of the property to satisfy the assessment, and to restrain any further sales. Complainant appeals from decree sustaining demurrer. Decree reversed, and one entered- in this Court in accordance with the opinion. The farots are stated in the opinion.

Mandamus. Eelator applied for mandamus to compel respondent to pave certain streets between its. rails and tracks, etc. The facts are stated in the opinion.

Mandamus. Eelator applied for mandamus to compel the respondent to set aside a' decree for divorce. The facts are stated in the opinion.

Information in the nature of quo warranto to determine the title to the office of comptroller of West Bay City. The'facts are stated in the opinion.

<p>The facts are stated in the several opinions.</p>

Information in the nature of quo warranto to determine the title to the office of treasurer of West Bay City. The facts are stated in the cases cited in the opinions.

<p>Surveys — Boundaries—Location of highway — Evidence,</p> <p>1. The reason for the rule that, as between the record of the survey of a highway, and a highway actually located upon the ground by fence lines, or by being graded and traveled or otherwise definitely fixed, the latter must prevail as the boundary of lands described as being so limited, does not exist unless the line of the road was actually located and definitely fixed, in which case the road itself becomes the controlling monument.</p> <p>2. Streets that have been opened and acquiesced in by the parties interested, or by the public authorities, become permanent boundaries, and form new starting points for later surveys; citing Twogood v. Hoyt, 42 Mich. 609; Van Den Brooks v. Correan, 48 Id. 283; Atwood v. Canrike, 86 Id. 99, 103.</p> <p>8. For the purpose of identification and certainty, resort may be had to a conveyance referred to in the instrument containing the uncertain description; citing Daily v. Litchfield, 10 Mich. 29; Cronin v. Core, 38 Id. 381; Fahey v. Marsh, 40 Id. 236.</p> <p>4. Where the description in a deed calls for land owned and. occupied, the actual line of occupation is a material call to be • considered in locating the boundaries.</p> <p>5. Old -fences have always been regarded as strong and trustworthy evidences in ascertaining and fixing boundaries; citing Diehl v. Zanger, 39 Mich. 601; Twogood v,. Hoyt, 42 Id. 609;, Wilmarth v. Woodcock, 66 Id. 381; Beaubien v. Kellogg, 69 Id. 333.</p> <p>6. Where two surveyors disagree materially as to the courses, quantity becomes a material consideration; citing Winans v. Cheney, 55 Oal. 567; Sanson v. Township of Bed Bock, 57 N. W. Rep. 11.</p> <p>7. A supposed boundary line, long acquiesced in, is better evidence of where the real line should be than a survey made after the original monuments have disappeared; citing Stewart v. Carleton, 31 Mich. 370; Diehl v. Zanger, 39 Id. 601.</p>

Appeal 'from Wayne. (Donovan, J.) Bill to declare and enforce a lien on the homestead of a deceased person. Defendants appeal. The facts are stated in the opinion.

<p>Replevin — Contest between, mortgagees — Judgment.</p> <p>1. How. Stat. § 8342, which provides that “when either of the parties' to an action of replevin, at the time of the commencement of the suit, shall have only a lien upon, or special property or part ownership in, the goods and chattels described in the writ, and is not the general owner thereof, that fact ma.y be proved on the trial, or on the assessment of value, or on the assessment of damages, in all cases arising under this chapter [288], and the finding of the jury or court, as the case may be, shall be according to such fact, and the court shall thereupon render such judgment as shall be just between the parties,” is only applicable to a case where one party is the general owner, and the other a lienor or part owner.* 1</p> <p>2. Where a prior mortgagee replevies the mortgaged property from the second mortgagee, and its value as found by the jury exceeds the amount of the mortgages, and the jury further find that the property was unlawfully detained by the defendant, the plaintiff is entitled to’a judgment and to the costs of suit.</p>

Clair. (Yance, J.) Eelator applied to tbe circuit court for mandamus to compel respondents to reinstate him as a member of tbe police force. Eespondents bring certiorari to review order granting tbe writ. Tbe facts are stated in tbe .opinion.

<p>Appeal from Livingston. (Person, J.)</p> <p>Bill to restrain defendant from taking further proceedings to open a highway. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Monroe. (Kinne, J.)</p> <p>Bill to quiet title. Complainants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>' Conditional sale — Lien—Waiver.</p> <p>Where a contract for the sale of a piano provides that the instrument shall remain the property of the vendor until the purchase price and any judgment rendered thereon is paid in full, ' the vendor has the right to obtain such judgment, and the title to the piano will not pass until the judgment is paid.</p>

(Hosmer, J.) Petition by complainant to compel the payment of certain moneys claimed under a prior decree. Complainant .appeals. The facts are stated in the opinion, and in 84 Mich. 364.

<p>Fraudulent purchase — Rescission—Right of assignee.</p> <p>1. The right to recover property, the title to which never passed by reason of the fraudulent representations of the purchaser as to his financial condition, passes to an assignee of the vendor’s business and book accounts.</p> <p>2. The failure of a vendee, who knows that he is in failing circumstances or insolvent, to disclose that fact to a vendor, will not make the purchase fraudulent, unless coupled with an intent on his part, at the time of the purchase, not to pay for the goods; citing Zucker v. Karpeles, 88 Mich. 413.'</p>

<p>Error to Wayne. (Donovan, J.)</p> <p>Trover. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

(Adams, J.) Bill to set aside a deed, and to declare a trust under a prior deed. Complainants appeal. The facts are stated in the opinion.

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

<p>Appeal from Wayne. (Lillibridge, J.)</p> <p>Bill for an accounting. Complainant appeals.</p> <p>jThe facts are stated in the opinion, and in 79 Mich. 575, and 83 Id. 412.</p>

<p>Logging contract— Evidence— Replevin— Judgment— New trial— Review of decision denying motion.</p> <p>1. Where the evidence as to whether or not a claimed contract was made. is conflicting, the question should be submitted to the jury.</p> <p>2. Plaintiff, after receiving from defendant a portion of a quantity of saw-logs driven by the defendant for him, brought replevin for the remainder of the logs, 648 of which were not taken on the writ. The evidence showed how many logs were cut, marked, and put into the river, and that defendant ran said logs, with other logs, to its boom, and there was testimony from which the jury could estimate how many logs were received by the plaintiff before the issuance of the writ. And it is held that it was not error for the court to permit the jury to find a verdict for the value of the logs not taken on the writ.</p> <p>3. The action of the circuit judge in refusing to grant a motion for a new trial will not be reviewed where his reasons for such refusal are not incorporated in the bill of exceptions as a part of the record of the proceedings had on said motion.* 1</p>

(McKnight,' J.) Certiorari to review an order of the circuit court committing plaintiff for contempt. The facts are stated in the opinion, and in 99 Mich. 347.

Mandamus. Belator applied for mandamus to compel respondent to set aside her default, entered in a garnishee suit because ■of her refusal to submit to an examination. The facts are stated in the opinion.

<p>Forcible entry and detainer — Complaint—Description of premises.</p> <p>1. In proceedings for forcible entry and detainer, the description of the premises must be sufficiently definite to enable the officer executing the writ to restore complainant to possession, and exclude the defendant therefrom.1</p> <p>2. The complainant, claiming to have been forcibly excluded from the possession of a portion of a stable leased of the defendant, instituted proceedings for forcible entry and detainer. The premises were described in the complaint as “the following described lands and premises, situate in the village of Allegan, in said county, to wit: The first two stalls at the left of the entrance to the first floor, and standing room on that floor for a buggy, and the north half of the upstairs, of the third entrance, counting from the north side, to the building known as the ‘Eink Building,’ situate on the east side of Water street, in the village of Allegan, situate on, lots 232 and 233.” And it is held that the description is too indefinite to enable the officer executing the writ of restitution to restore complainant to possession, and exclude .the defendant therefrom; and that the only remedy open to the complainant is an action for breach of the lease. ></p>

Mandamus. Relator applied for mandamus to compel respondent to allow its claim for interest on a judgment for costs against the State. The facts are stated in the opinion.

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

<p>Will — Bill to construe — Trust—Suspension of power of alienation.</p> <p>1. Where executors appear and answer a bill filed by a legatee, asking for a construction of the terms of the will if held valid, and asserting that it is as a whole invalid in equity, and in terms submit the question of the construction of the will to the court, the court may properly maintain jurisdiction.</p> <p>2. The will, a construction of the terms of which is sought, provides:</p> <p>a — That the wife of the testator shall have the use of his homestead, together with the furniture and other personal property thereon and connected tnerewith, to be used and enjoyed by her during her natural life as a home for herself, and for such of the testator’s children as shall remain unmarried, and shall be agreeable to her; that the taxes and repairs upon the homestead shall be paid by the executors from the estate; and that they shall also pay to the" widow $1,500 per annum, in quarterly or monthly installments, as she may desire, during her natural life.</p> <p>b — That the residue of the estate shall be divided equally among the testator’s five children, naming them and giving their ages, or to the survivors of them, excepting that in case any of said children shall die, leaving a child or children, his or her interest shall go to and belong to said child or children.</p> <p>c — That certain advances made to certain of the testator’s children, and charged to them upon his books, together with any advances that may be made after the execution of the will, and charged to the child or children to whom made, shall be deducted from the portion given to such child or children.</p> <p>d — That the portions given to three of the testator’s sons, naming them (one of whom was unmarried when the will was executed), shall be held in trust by the executors, as trustees for said sons, their wives and children, and the interest, income, and profit thereof shall be used and paid as in the . judgment of the executors shall be best for the support and maintenance of said sons, their wives and children, during the lives of said sons' and their wives, and, upon the decease of said sons and their wives, the portion so held in trust by said executors shall become the property of and go to the child or children of said sons, severally, and their heirs and assigns, forever.</p> <p>And it is held:</p> <p>a — That it was the purpose of the testator to divide the (residue of his) estate into five equal parts; that he did not intend by paragraph d that the portions set apart to his three sons should be held by his executors in trust for the common use of said sons, their wives and children; that, in so far as reference is had in said paragraph to the wife of said unmarried son, it was intended to mean any wife of his living at the time of the decease of the testator; and that, as to the estate vesting upon the death of the widow, the power of alienation was not suspended for a longer period than two lives in being.</p> <p>6 — That the intent is clearly manifested to make the entire estate subject to the payment of the taxes and the making of repairs on the homestead, and the payment of the annuity to the widow; that the executors are required to devote the income of the entire estate to that purpose, if necessity therefor exists; that the power of alienation was thereby suspended during the lifetime of the widow, and therefore the trust sought to be created by paragraph d is void.</p> <p>a — That the will is not void in toto; that certain duties are imposed upon the executors which may, notwithstanding the failure of the limitation in paragraph d, be performed, and the provision charging against the shares of certain of the children of the testator the amounts advanced to them should be sustained.</p> <p>d — That, as the widow has elected to take under the statute, it is not material to determine whether, upon the failure of the limitation in paragraph d, the children of the testator would take an absolute fee under paragraph 5 of the will, as their interest would be the same whether they take as heirs at law or by the terms of the will. -</p> <p>3. The following general propositions are summarized from the opinion of Montgomery. J.:</p> <p>a — Provisions in a will which are not valid when made and when the will takes effect cannot thereafter be made valid by the election of the widow to take under the statute.</p> <p>b — No express words creating a trust are requisite, if the intent to devote the estate to á particular purpose is apparent from the terms of the will.</p> <p>c — Where a duty is imposed upon the executor which makes it necessary for him to retain the possession and control of realty, he will take an interest adequate to enable him to perform this duty; and an alienation which cuts off that right is, by implication, prohibited.</p> <p>d — Where a will provides that certain debts, legacies, and charges are to be paid, and the residue of the estate not thus expended is then to be divided, the particular debts,' legacies, and charges will be considered a charge against the estate, real and personal</p>

Exceptions before judgment from Alpena. (Kelley, J.) Eespondent was convicted of maliciously threatening to accuse, a certain person of the crime of perjury. The facts are stated in the opinion.

<p>Taxes — Payment under protest — Action against county — Duress— Pleading — Bill of particulars — Demurrer.</p> <p>1. Section 58 of the tax law of 1893, which authorizes the county treasurer, after the return of lands for unpaid taxes, to receive, under like provisions as in section-53 of the act, the amounts-of the several taxes or any of them due, does not authorize the payment of taxes to- the county treasurer under protest, and the bringing of a suit against the county to recover back the moneys so paid.1</p> <p>2. The payment by a land-owner to the county treasurer, under protest, of illegal taxes assessed against his land, in order insecure from that officer the certificate required by the tax law of 1893 as to the payment of taxes to entitle his deed, given to a prospective purchaser, to record, does not constitute payment under duress, so as to give to the land-owner a common-law right of action against the county for the recovery of the, moneys so paid, although he would otherwise have been prevented from making such sale.</p> <p>8. A bill of particulars is no part of the declaration, and cannot affect its sufficiency upon demurrer.</p> <p>4. A demurrer to an entire declaration, which, in addition to the special counts, contains the money counts, which are good, cannot be sustained.</p>

<p>Error to Cass. (O’Hara, J.) ■</p> <p>Negligence case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Municipal corporations — Defective sidewalk — Accumulation of ice and snow.</p> <p>This case is ruled by McKellar v. City of Detroit, 57 Mich. 158, where it was held that a city is not liable for injuries received by a fall on a sidewalk, occasioned by the accumulation thereon, from natural causes, of ice and snow.1</p>

<p>Res judicata — Replevin—Directing verdict.</p> <p>1. Plaintiffs and defendant held chattel mortgages upon the same property. Defendant’s mortgage was executed prior to the-date of plaintiffs’ mortgage, but was not filed until after plaintiffs’ rights had accrued. Defendant replevied the property from the mortgagor, and plaintiffs, claiming the property under their mortgage, brought this action of replevin to test the title. And it is held that a judgment, afterwards recovered by the defendant in his suit, is not res judicata of the questions involved in plaintiffs’ suit.</p> <p>2. Where there is no dispute as to the value of the property not recovered on a writ of replevin, the court is justified, on directing a verdict for the plaintiffs, in stating the amount for which the verdict should be rendered.</p>

<p>Error to Wayne. (Carpenter, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in tbe opinion.</p>

Exceptions before judgment from Kalamazoo. (Buck, J.) Respondent was convicted of the violation of a village ordinance. The facts are stated in the opinion.

<p>Practice in Supreme Court — Assignments of error — Negligence— Towage.</p> <p>1. An assignment that “the circuit judge erred in charging the-jury and in giving the requests for plaintiff found on pages-184-140 of record” cannot be considered, it appearing that the pages cited contain many statements by the court in which the law is correctly stated, whatever may be said of some of them.</p> <p>2. In a suit to recover the value of a sailboat lost, as claimed by the plaintiff, through the carelessness of the defendant, it-appeared that the defendant towed plaintiff’s scow, to which the sailboat was attached, across a lake, for the purpose of reaching a sunken vessel, which the plaintiff was to raise for the defendant; that the plaintiff was on the scow, and, after the sailboat was safely across the lake, the steamer turned to-go up the shore, and the sailboat capsized; that, upon plaintiff’s signal, the steamer slackened her speed, and plaintiff drew the sailboat alongside the scow, and signaled the steamer to go ahead, he thinking they were so near shore she might run the distance; that the sailboat towed in that way for a short distance, when she “chawed her line off near the stem, and went off, at least drifted away.” And it is held that, from the plaintiff’s own showing, he was present, and gave the directions what to do; that, if any one was at fault, it.was not the defendant, and the court erred in permitting a recovery.</p>

(Moore, J., presiding.) Bill for tbe dissolution of a partnership, an accounting, ¡the appointment of a receiver, and tbe cancellation of certain mortgages. Defendants appeal. The facts are stated in the opinion.

<p>Will — Mental incompetency — Evidence—Declarations,</p> <p>.1. On the contest of a will on the ground of the mental incapacity of the testator, the following testimony is inadmissible:</p> <p>a — Statements made by one of the legatees, prior to the .death of the testator, that he was crazy.</p> <p>b — The statement of a party who, on an occasion not long -prior to the death of the testator, was sent for to draft his will, and who declined to go, that his reason for declining -was that he did not consider the testator capable of making a - will; such testimony being clearly hearsay of the most dam- ; aging kind.</p> <p>c — Acts or statements of the testator tending rather to show •that he was irritable than incompetent.</p> <p>2. It is competent to show the expressed declarations of the testator as to his intended disposition of his property, even -though made a considerable time (in the present case, 13 years) before the making of the will, and, in the absence of proof of some change in purpose, the remoteness of time when the declarations were made bears rather upon the weight of the testimony than its admissibility.</p>

(Bussell, J.) Information in the nature of quo warranto to test the title of respondent to the office of trustee of the village ■of Shelby. ’ Delator brings error. The facts are stated in the opinion.

Clair. (Vance, J.) Defendant brings certiorari to review an order denying a motion to quash the service of a declaration. The facts are stated in the opinion.

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

<p>Fire insurance — Conditions of policy — Appraisal—Bight to bring suit.</p> <p>1. After proofs of loss have been made, it is the duty of a fire insurance company, within a reasonable time, to make manifest its disagreement with the amount claimed by such proofs.</p> <p>2. A condition in a fire insurance policy that a loss thereunder shall not become payable until 60 days after the notice, ascertainment, estimate, and satisfactory proof of the loss required in the policy have been received by the company, including an award by appraisers when appraisal has been required, makes such appraisal, when required, a condition precedent to the right to sue; and the company has a reasonable time within the 60 days after proofs of loss have been furnished in which to move with respect to the ascertainment or estimate of the loss.</p> <p>3. A policy-holder made his proofs of loss, and, without waiting for any action by the company, asked for the appointment of appraisers, and they were appointed. And it is held that the-insured cannot be heard to say that, inasmuch as no effort, had been made by the parties looking to an adjustment, the-appointment of appraisers was premature, and that an appraisal must be regarded as having been required within the language-of the pqlicy.</p> <p>4. Where the conduct of the appraiser appointed by the company-in refusing to agree on an umpire is inexcusable, and virtually amounts to a refusal to proceed with the appraisement,, the fact that the appraisement was not concluded before suit, was brought will not bar an action on the policy. So held,, where the company selected as its appraiser an insurance-adjuster who resided in a city 135 miles distant from the city where the fire occurred, and where the appraiser selected by the insured resided. The two appraisers disagreed as to the selection of the third appraiser. The company’s appraiser suggested the names of three persons, residing at a distance from the place where the fire occurred, and the appraiser for the insured offered the names of 12 residents of the locality from which the jury, in case of a suit, would be drawn. The-. appraiser for the company assigned no valid reason for a refusal to accept one of the 12, the only reason given being that he did not care to take the chances of getting an appraiser that would be partial</p>

(Brenner, J.) Petition to open and extend Houghton avenue in the city of Saginaw. Respondent appeals. The facts are stated in the opinion.

Exceptions before judgment from Muskegon. (Dicker-man, J.) Respondent was convicted of the crime of larceny.. The; facts are stated in the opinion.

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

<p>Appeal from Wayne. (Hosmer, J.)</p> <p>Petition by defendant Louis H. Kean to adjudge a-decree paid and discharged. Complainants appeal.</p> <p>The facts are stated in the opinion.</p>

Mandamus.' Eelators applied for mandamus to compel respondent to* dissolve an injunction restraining the issue of certain, bonds. The facts are stated in the opinion.

(Donovan, J.) Defendants bring certiorari to review an order of the circuit court affirming an order of distribution made in the probate court. The facts are stated in the opinion.

<p>Practice in circuit court — Evidence—Factors and brokers — Action for commission.</p> <p>1. Immaterial or irrelevant testimony must be of such a character-as naturally to prejudice the jury against the party objecting to its admission; otherwise, the judgment will not be reversed for its admission.</p> <p>2. Where an objection to incompetent testimony. is overruled, a failure to object to similar testimony afterwards introduced, and the meeting of the same by counter proof, does not waive-the error.</p> <p>3. In an action to recover a commission agreed to be paid by the purchaser of logs, papers relating to the situation, amount, character, and quality of the logs, which one of the plaintiffs gave to the defendant during the negotiations, are admissible-as part of the res gestae.</p> <p>4. The testimony of the defendant that in his conversation with the plaintiffs he had no idea that they intended to charge for-commission was properly excluded.</p> <p>5. Where plaintiffs seek to recover, upon an express contract, a. certain commission agreed to be paid on the purchase of a. quantity of saw-logs, testimony on their part that the commission on the sale of the logs was worth 3 per cent, on the dollar on the amount for which the logs sold is inadmissible; citing McDonald v. Ortman, 98 Mich. 40, 42.1</p> <p>6. Where a lumber manufacturer receives an option on a quantity of logs from a log and lumber broker, and agrees to pay a certain commission if he purchases the logs, he cannot defend, in an action to recover the agreed commission, upon the ground that he purchased the logs from the owner conditionally, or upon terms different from those contained in the-option, the broker being ignorant of any such change.</p> <p>7. A telegram from the owners of logs to a' log broker, to whom they had given an option on the logs, which he had sold to a lumber manufacturer for an agreed commission, stating that the option was extended, is competent evidence, in a suit by the broker to recover the commission, of the extension of the-option.</p>

<p>Married woman — Personal injuries — Damages—Loss of time — Miscarriage — Negligence—Instructions to jury.</p> <p>1. In a personal injury case prosecuted by a married woman, the plaintiff was permitted to testify, against objection, that-before receiving the injury complained of she had painted pictures for profit, and was able to earn a certain sum per week, and that by reason of the injury she was rendered unable to do that kind of work. And it is held that the husband is, prima facie, entitled to the earnings of his wife, and that it was error to admit the testimony, and permit a recovery for the impairment of plaintiff’s ability to earn money.</p> <p>2. The plaintiff contended that as she was a minor, and prosecuted the suit by her husband as her next friend, he would be estopped by the verdict from bringing suit thereafter to recover for such services, and hence no injury could have been done the defendant. It appeared, however, that, after the objectionable testimony had been given, a question on the same line was put to another witness, which was objected to, and the court said: “ I think the husband is entitled to the wages. I guess there is no use going into that. in this case at all.” And it is held that, after this statement, the defendant’s counsel could not be expected to meet such-proofs as had crept in on the subject; that the subsequent charge of the court to the effect that, if the plaintiff was entitled to recover, she was entitled to the value of her time, etc., was not only erroneous as matter of law, but, given as it was, after said statement by the court, which cut off proofs on ■ the part of the defendant, was based upon a necessarily ex parte showing.</p> <p>8. The testimony in a personal injury case brought by a married woman tended to show that one of the results of the injury was a miscarriage. The court instructed the jury that they might, if they found a verdict for the plaintiff, give as a part of her damages what they should find the society, enjoyment, and prospective services of the child were reasonably worth. And it is held that the charge was clearly erroneous; that there was; of course, no proof in the case as to the prospective earnings of the child, even if the mother would he the proper person to recover for such loss; that the loss of the child’s society would not be a proper element of damages; that while the jury are allowed to consider the case with all its facts, and to take into account, for the purpose of compensation, not only the physical pain, but also mental suffering, in determining the award of damages, and while, of necessity, this involves, to some extent, a consideration of the nature of the injury, and cannot exclude from the consideration of the jury the fact that the physical and mental suffering of the mother by reason of such an injury would be more intense than in the 'case of the ordinary fracture of a limb, yet beyond this it would not be competent for the jury to go, and attempt to compensate for the sorrow and grieving.</p> <p>•1. In a personal injury case against a street-railway company, the declaration averred that, in the rear platform of the car from which plaintiff was attempting to alight at the time she received the injury complained of, the defendant had negligently placed and permitted to remain an iron bolt, which projected above said platform a specified distance; that while plaintiff was passing out of said car, and onto and over said platform, for the purpose of alighting therefrom; and was stepping from the platform of said car to the steps thereof, said car being stationary, the defendant negligently caused said car to be suddenly started and moved forward, by means whereof plaintiff was thrown down and against said car, and down and upon the platform thereof, and down and upon and against the steps of said car, and her dress skirt or skirts caught on said bolt, and she was held fast to and against said car and platform and steps, and partially upon the ground, and was so held, dragged, and carried along by the motion of said car, and injured, etc. Plaintiff’s testimony was to the effect that she was in the act of stepping off the car when it started, and was thrown backward, and her clothing caught; that she took it for granted that her clothes were caught; that she did not know in what; that she could 'not see, but in her struggle she threw her arm behind her, and, as she did so, her hand came down on something that projected from the platform; that gjhe pulled her skirt, and a bolt came out from the platform. On cross-examination she testified that she should think the bolt had no part in throwing her down, aside from the jerking of -the car. The defendant contended that there was no room under this testimony for the jury to find that plaintiff’s clothing caught on the bolt before she was thrown backward. And it is held that this is too narrow a construction of the testimony; that it appears from the charge of the court that defendant contended before the jury that plaintiff’s story was unreasonable, and that the injury could not have occurred in the manner supposed by her; that the jury had a right to construe the facts, and if, in their judgment, it was more reasonable to suppose that plaintiff’s clothing caught upon the holt without her knowledge before tíre car started, and threw her to the ground, it cannot be said that the circumstances of the case did not furnish a justification for that inference.</p>

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

<p>Fractional school-district — Alteration of boundaries — Jurisdiction;.</p> <p>The requirement of 3 How. Stat. § 6040, that, whenever the-proper boards of school inspectors shall' contemplate an alteration of the boundaries of a fractional district, the clerks of' the several townships interested shall give at least 10 days’ notice of the time and place of the meeting of the inspectors, and the alteration proposed, by posting such notice in. three public places in the townships, one of which shall be in-each of the districts that may be affected by such alteration, is jurisdictional, and proof of posting such notice should be filed with the clerk of the joint board before any action is taken.</p>

<p>Bills and notes — Parol evidence — Replevin—Damages.</p> <p>1. Where the giving and taking of a promissory note are the-deliberate acts of the parties, with full knowledge of the contents of the instrument, and the note is not tainted with any fraud, parol evidence is inadmissible to change the terms of payment.</p> <p>2. In replevin for a span of horses, for the purchase price of which-the defendant has given his promissory note, which is the only written evidence of the contract, it is competent for the plaintiff to show that the note was not received in payment, and that the title to the horses was to remain in him until the purchase price should be paid.</p> <p>■3. In replevin for a span of horses, the proper measure of the defendant’s damages is the value of the use of the horses during the time he has been deprived of their use.</p>

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

<p>Will — Estates in land — Waste—Firewood—Injunction—Election of remedy.</p> <p>By the terms of a will the testator devised to his wife a life estate in certain land upon which he resided, and to two of • his nephews 32 acres of land, subject, however, to its control by the widow until their majority, when it was to be sold, and the proceeds divided equally between them. The widow was-also to have firewood off 5 of the 32 acres. Executors were appointed, but no estate or title-was vested in them as trustees, nor was a power of sale given to them. The widow cut from the 5 acres, and sold, a quantity of ash and elm logs, intending, as she claimed, with the proceeds, to purchase coal for fuel. She and her vendee were enjoined at the suit of the nephews from removing the logs from the land. Pending a hearing of the equity suit, the widow attempted to cut the logs into firewood, whereupon the guardian of one of the-nephews and the other nephew went upon the land and removed the logs, and the widow replevied the same. At the time the logs were cut there were a number of large beach and maple trees upon the 5-acre tract, which were more suitable for firewood than the ones cut. And it is held:</p> <p>a — That the provision of the will giving the widow the right to firewood from the 5 acres is inconsistent with an intention to give her greater powers or privileges respecting said fiacres, and must be regarded as indicating the character of the use which she is to enjoy of that portion of the 32 acres, and does not include the right to cut timber into logs, and with the proceeds purchase fuel,'so long at least as there ia an abundance of fuel timber.</p> <p>b — That under the rule laid down in Mandleba^vm v. McDonell, 29 Mich. 78, the devise to the nephews must be regarded; as of a present vested remainder in fee; that the cutting of the timber was clearly waste; that the injury was one done to the inheritance; that the property in the logs was in the nephews, and they might .seize it, bring trover for its conversion, or replevy it,</p> <p>c — That, by the conduct of the widow in attempting to cut the logs into firewood, a danger to the property was threatened not contemplated when the bill was filed, the main object of which was to prevent further cutting, and the sale of the logs which had been cut; that the statu quo was changed by her own conduct, and, in view of another danger, the complainants had the right to avail themselves of another effective remedy to protect their property.</p>