Volume 105 — Michigan Reports

Appeals from Wayne. (Gartner, J.) Bills to determine the validity of certain contracts for public lighting. Defendant Wyandotte Electric Light Company, and complainants Campbell et al., appeal. The facts are stated in the opinion.

<p>Plank-road companies — Failure to rebuild bridge — Forfeiture of franchise — Abandonment of portion of road.</p> <p>A gravel-road company, whose road extended from the corporate limits of a city to the southern end of a toll-bridge owned and maintained by a bridge company, having purchased from the bridge company its property and franchises, amended its articles of association so as to include the bridge, and the portion of the highway on the north side of the river to its intersection with another "gi-avel road, as a part of its road. The gravel-road company at one time placed its' toll-gate on the north side of the river, and assumed and maintained control of the bridge, but after the expiration of the charter of the bridge company, which had about three years to run at the time of the purchase, made no extra charge for passage over the bridge. About 13 years after the gravel-road company had assumed control of the bridge, it was carried away by a freshet, and the company, on being notified by the highway commissioner to rebuild the bridge, by an amendment of its articles of association, abandoned that portion of the highway included in its road by the former amendments, assigning as a reason for such action on its part its inability, by reason of charter restrictions, to raise the requisite amount of money by -a mortgage of its road, or by a sale of stock or otherwise. Thereupon a bill was • filed under the statute to declare forfeited the right of the gravel-road company to receive toll. And, in affirming a decree in favor of the complainant, it is held:</p> <p>a — That the inability of the defendant to raise money with which to' rebuild the bridge is no answer to the bill.</p> <p>b — That the bridge constituted a part of the defendant’s road, and it is of no consequence whether it was destroyed with or without fault on its part.</p> <p>c — That the fact that the portion of defendant’s road that included the bridge was added to the original road by amendment to defendant’s charter in no manner affects the liability of the defendant.</p> <p>d — That it is no defense that the abandonment specified in How. Stat. § 3650, had not continued for one year at the time the bill was filed, nor is it necessary to determine whether that section is applicable to this case; that the defendant had declared an abandonment of and a refusal any longer to maintain the added portion of its road, or to keep it in repair, and, under these circumstances, the public was entitled to institute the suit at once.</p> <p>e — That the defendant had no legal right to amend its articles of association by abandoning that portion of the highway which included the bridge, thus limiting its road to its-original length.</p>

(Corbett, J.) Bills to enforce mechanics’ liens. Defendants Sproul & McGurrin and J. W. Travis & Son filed answers in the nature of cross-bills asking like relief. Defendant railway company appeals. The facts are stated in the opinion.

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

(Stone, J.) Bill for specific performance of a land contract, or, if tbe contract cannot be enforced, then for a decree awarding tbe possession of tbe land to complainants for a term of years sufficient to fulfill tbe purposes of tbe contract. Complainants appeal. Tbe facts are stated in tbe opinions.

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

Mandamus. Itelator applied for mandamus to compel respondent to refund to it tbe amount paid as a franchise fee. Tbe facts are stated in tbe opinion.

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

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

<p>Statutes — Repeal by implication — Re-enactment of charter provision — Liquor traffic.</p> <p>1. So much of subdivision 25 of section 24 of chapter 17 of the charter of the city of Kalamazoo (Act No. 337, Local Acts of 1883) as gave the city council power to regulate and license the sale of intoxicating liquors in said city was repealed by the general liquor law of 1887; citing People v. Furman, 85 Mich. 110.</p> <p>2. The re-enactment of said section 24, on amending said charter in 1889, — the only change made being in relation to street parades, provided for in subdivision 11 of said section, — does not show an intention to modify the general liquor law of 1887 as applicable to said city, by repealing it in whole or in part by implication, and reviving the repealed portion of subdivision 25.</p> <p>3. The Court distinguish this ease from Sherlock v. Stuart, 96 Mich. 193, where the substantial change made in the provision of the charter precluded the claim that it was included in the amendatory act by inadvertence.</p>

Exceptions before judgment from Allegan. (Padgbam, J.) Bespondent was convicted of a violation of the liquor law in not removing all curtains, screens, etc., that obstructed the view from the street of the bar where lienors were sold. The facts are stated in the opinion.

(Chapin, J.) Respondent was convicted of the crime of receiving a bribe, and sentenced to imprisonment in the State prson at Jackson for 5 years. The facts are stated in the opinion.

(Daboll, J., presiding.) Relator applied to the circuit court for mandamus to compel respondent tó consider a motion to set aside the finding of a jury in a drain proceeding, and respondent brings certiorari to review order granting the writ. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel respondent to set aside an order dismissing a writ of replevin. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel respondent to vacate an order discontinuing an action of replevin. The facts are stated in the opinion,

(Wisner, J.) Respondents were convicted of keeping their saloon open on Sunday, and sentenced to imprisonment in the Detroit House of Correction for 65 days. The facts are stated in the opinions.

<p>Street railways — Injury to person on track — Contributory negligence — Evidence—Impeachment.</p> <p>1. Under the testimony in this ease, the questions of the negligence of the defendant and of plaintiff’s decedent were prop • erly left to the jury.</p> <p>2. In an action for negligently causing the death of plaintiff’s decedent, who was struck by a street ear, and received injuries from which he died, testimony of what appeared by a post mortem examination of the decedent is competent as furnishing one of the means of ascertaining what the result of the injury was.</p> <p>3. The conductor of tlie street car testified on his direct examination to a state of facts tending to show the exercise of due care on the part of the motorman, and on his cross-examination denied that he stated, shortly after the accident, that it would not have happened if he had had his own motorman. And it is held competent on rebuttal, as tending to impeach the witness, to show that he made said statement.</p>

(Davis, J.) Bill to require the defendant trust company to apply certain insurance moneys towards the payment of complainant’s debt. Complainant appeals. The facts are stated in the opinion.

Exceptions before judgment • from Macomb. (Eldredge, J.) Respondent was convicted of murder in the first degree. The facts are stated in the opinion.

(Smith, J.) Respondent was convicted of assault and battery, and sentenced to pay a fine of f 100, and to be confined in the county jail for 30 days. The facts are stated in the opinion.

(Hosmer, J.) Relators applied to the circuit court for mandamus to compel respondent to issue his warrant for the payment of a check issued by the board of health, and respondent brings certiorari to review order granting the writ. The facts are stated in the majority opinion.

(Chapin, J.) Respondent was convicted of receiving and aiding in the concealment of stolen goods, knowing them to have been stolen, and was sentenced to imprisonment in the State prison at Jackson for 5 years. The facts are stated in the several opinions.

(Chapin, J.) Respondent was convicted of willful neglect of duty and corrupt conduct in the execution of his duty in canvassing election returns. The facts are .stated in the opinion.

(Wilber, J.) Respondent was convicted of the crime of larceny, and sentenced to imprisonment in the State prison at Jackson for 5 years. The facts are stated in the opinion.

<p>Appeal from Wayne. (Moore, J., presiding.)</p> <p>Bill to foreclose a land contract. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Street railways — Injury to person on track — Contributory negligence.</p> <p>1. The driver of a screet horse car has a right to suppose that a person working on the track will step out of the way. upon the approach of the car, and is under no obligation to slacken his laioful speed until he sees that such person is in danger.</p> <p>2. In a personal injury case it appeared that the plaintiff, who was employed to sweep a cross-walk over which three horse street car tracks passed, and who was familiar with the work and the situation, and knew that cars frequently passed on each track, continued his work, without looking for the approach of ears, until warned by a policeman of the approach of a car from the south, when he stepped back, so as to place himself between two of the tracks, which were about four feet apart, and was struck by the corner of a car coming from the north, and thrown down and injured. And it is held that it was the plaintiff’s duty to keep watch of the approach of cars, and that the accident was the result of his own want of proper care.</p>

<p>Negligence— Pleading — Variance—Amendment—Runaway horses— Evidence,</p> <p>1. The declaration in a case brought to recover for injuries received by being run over by the defendant’s runaway team averred in one count that defendant carelessly and negligently allowed its team to be insecurely fastened, and in the second count that the horses were left unguarded and improperly fastened. No objection was made to the testimony of the plaintiff tending to show that the horses were left unhitched, the question of variance being raised for the first time by an assignment of error. And it is held that, had the question been raised on the trial, an amendment, if necessary, would have been granted, and the assignment cannot be sustained.</p> <p>2. The testimony of the .driver of the team, and that of other witnesses, was positive that the team was hitched by means; of a strap and a weight. The plaintiff testified on direct examination that she passed by the team while they were standing by the depot platform, and that they were not fastened. - On cross-examination she testified that the only reason why she knew they were not hitched was because the horses stood with their faces towards her; that she meant that they were not hitched to some post or object, and her reason for so stating was that she did not see any post or object to which the horses could have been hitched. And it is held that plaintiff was in a position to see, and that her testimony elicited upon cross-examination is not such as to justify the Court in holding that there was no evidence to show that the team was unhitched.</p> <p>3. To leave a horse unhitched is to be judged as negligence by considering the temper of the horse, and the particular circumstances under which he was left, and' the question is for the jury.</p>

<p>Fraudulent conveyances — Husband and wife — Sale—Change of possession — Evidence—Instructions to jury — Deed—Estoppel.</p> <p>1. An instruction in an action of trover brought by a wife for property attached by her husband’s creditors five days after he had executed to her a bill of sale of the property, that if there was no immediate delivery of the property, and no actual and continued change of possession, the burden of proof was upon the plaintiff to show that the sale was made in good faith, and without intent to defraud creditors, is not open to the objection that the jury must have understood that what was meant by the expression “immediate delivery” was “instantaneous delivery;” the testimony tending to show that, for two days after the execution of the bill of sale, the husband continued to care for the property, and on the third day left for another state, leaving his son in charge of the property, and that on the third day, while the son was using the property for his father in his business, a portion of the indebtedness for which the property was attached was contracted, under circumstances tending strongly to show that the husband could not reasonably have expected to pay for the goods thus obtained.</p> <p>2. A wife sued in trover for property which had been attached by her husband’s creditors. For the purpose of showdng title, she sought to establish the fact that she had in her own right real estate from which she received a revenue’ sufficient to enable her to make certain loans to her husband, in part extinguishment of which the bill of sale to her of the attached property was, as she claimed, given. Her testimony tended to show that she furnished the money used in the purchase of said lands; that the title was taken in her husband’s name, she supposing that it should be so taken; that some years later, on learning that a married woman could hold property in her own name, at her request, her husband conveyed the land to her. And it is held that the jury should have been instructed as requested by the plaintiff:</p> <p>«--That if the deed from the husband was given without any intent to defraud his creditors, and in fact did not defraud them at the time it was executed, it conveyed the entire right and title of the husband in and to the land to the wife, whether the land had been purchased originally with her money or not.</p> <p>6 — That if the jury should find that said land was purchased with the plaintiff’s money, and the title placed in the name of her husband, and that he, in recognition of her right to the ownership of the land, deeded the same to her at her request, such deed would convey the entire right and title of her husband in said land acquired by such original conveyance to him, and his subsequent creditors could not object to or attack the validity of said deed.</p> <p>3. One parcel of land was purchased from an administrator, who conveyed it to the husband, and he conveyed it by warranty deed to plaintiff. A second deed was afterwards executed to the husband by the administrator under proceedings taken to cure a defect in the first deed, growing out of the want of proper proceedings upon which to base it. And it is held that the plaintiff was entitled, as a matter of right, to an instruction that the title acquired by the husband by reason of the second deed inured to the benefit of the plaintiff.</p>

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

(Wisner, J.) Relator applied to the circuit court for mandamus to compel respondent to audit his account for building a fish chute in his dam. Respondent brings certiorari to review order granting the writ. The facts are stated in the opinion.

Mandamus. Eelator, who owned a certain judgment rendered by respondent as justice of the peace, and was desirous that execution issue thereon, applied for mandamus to compel respondent to turn over to his successor the books and papers belonging to such office. The facts are stated in the opinion.

<p>Municipal corporations — Defective sidewalks — Pleading—Notice— Presentation of claim to council — Contributory negligence — Instructions to jury — Special questions.</p> <p>1. A declaration in a personal injury case which avers that the defendant city well knew, or by the exercise of reasonable care ought to have known, of the dangerous and unsafe condition of the sidewalk upon which the plaintiff was injured, in the absence of a demurrer, must be held to aver sufficiently that the defect had existed for such a length of time before the accident as to justify a presumption of notice, which takes the place of actual notice.</p> <p>2. A city charter provided that it should be a sufficient defense to any action or proceeding for the collection of any demand or claim against the city of any description whatever that it had never been presented to the common council for allowance, or that it had been presented without the required affidavit, and rejected for that reason. A personal injury claim was presented to the council, verified before one of the attorneys who afterwards brought suit for the collection of the claim, but was not rejected because thus verified. And it is held that it is unnecessary to decide whether the affidavit was within the prohibition of How. Stat. § 637, which prohibits attorneys from administering oaths in causes in which they may be professionally engaged, as, by not rejecting the claim for that reason, the alleged defect was waived.</p> <p>3. The accident occurred on the evening of December 10. It was ndt claimed that the city had actual notice of the defect in the walk. And it is held that the court should have instructed the jury, as requested by the defendant, that if the plank, the removal of which caused the accident, was in place on December 8 or 9, their verdict should be for the defendant; but as the' jury found, in answer to a special question, that the plank was not in place on either of the days named, the error thus committed was without prejudice.</p> <p>4. It was not error to instruct the jury, under the facts of the case, that the plaintiff had a right to travel on the sidewalk, and that the mere fact that he did so travel, even with knowledge that there was a hole in the walk, was of itself no evidence of negligence on his part, unless the place was so dangerous that a prudent man would not have traveled on the walk.1</p> <p>5. The court, after stating to the jury the rule of presumptive notice, said that it appeared that the defendant had men whose duty it was to inspect the walks, and to use reasonable care and diligence to find out whether they were in a reasonably safe condition; that if they used such care and diligence, and were unable to find the defect, or did not find it, the defendant did not then have knowledge of said defect, and plaintiff could not recover; but that, if they neglected to perform said duties, the defendant would be liable for the defect. And it is held that the contention of the defendant that the jury were permitted to base a verdict upon a failure to inspect the sidewalk, an act of negligence not charged in the declaration, is untenable; that the instruction meant no more than that the failure to inspect the walk, or to inspect it properly, did not prevent the application of the rule of presumptive notice.</p> <p>6. A statement by the court to the jury that it was very important that the special questions submitted to them should be so answered as to correspond with their general verdict, for the reason that their answers to said questions would control said verdict if it was not in accordance with said answers, did not amount to a direction that the answers to said questions must correspond with the general verdict, but amounted merely to a statement that it was important that the two should agree; and while, as said in People v. Murray, 52 Mich. 291, it is not good practice to make such statements to the jury, the language above given is no stronger than that used in the case cited, which is therefore controlling.1</p> <p>7. A special question in a suit to recover damages for personal injuries sustained by stepping into a hole in a sidewalk existing by reason of the displacement of a plank, namely, “Do you find that the plank was in and out of its place at various times immediately before the accident,” is Improper, as its answer could have no controlling effect upon the general verdict</p> <p>8. It is not error for the court, in the absence of a request therefor, to fail to give the jury a definition of the term “contributory negligence,” as used in the charge in a personal injury ease.</p>

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

<p>Lease — Surrender—Removal of fixtures — Lion-payment of royalties</p> <p>Provision was made in a mining lease for its termination 60 days after the delivery by the lessee to the lessor of a written surrender thereof, and the payment of all royalties due thereon. The lease further provided that upon the performance of such conditions the lessee might remove the buildings, machinery, and other fixtures which he had. placed on the land. The assignee of the lease sent to- the' lessor the required surrender. The lessor wrote the assignee acknowledging its receipt, and stating that it had been recorded, and that it disposed of the lease. Subsequently an arrangement was made between the lessor and the assignee whereby the latter used the pumps for a week, and the charges therefor were paid by the lessor. Without having paid the royalties due on the lease the assignee removed the buildings, machinery, etc., from the land, after which it made such payment. The lessor sued in trover for’the value of the machinery, claiming that there had never been a surrender of the lease, owing to the non-payment of the royalties; that, if it should be held that the surrender was effected by the subsequent payment of said royalties, at- the time the assignee removed the machinery sued for no right of removal existed, as said royalties had not then been paid. And it is held that the action of the lessor in assuring the assignee that the surrender ended the lease, the subsequent receipt for the royalties, and the payment for using the pumps, amounted to a ratification of the surrender, and that as the payment of the royalty, which should have been made prior to or-concurrently with the removal of the machinery, was subsequently made, the damage to the lessor was nominal; citing Haven v. Manufacturing Co., 40 Mich. 287.</p>

<p>Error to Clinton. (Daboll, J.)</p> <p>Replevin. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Berrien. (Coolidge, J.)</p> <p>Trespass. Plaintiff brings error.</p> <p>The facts are stated in tbe opinion.</p>

<p>Error to Cass. (Coolidge, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion, and in 95 Mich. 241.</p>

<p>Sale — Fraud—Eoidenee.</p> <p>1. Testimony competent for one purpose' cannot be excluded because incompetent for another purpose.</p> <p>2:, Where, .in an action by a mother to recover the purchase price of a stock of goods which she claims to have sold to the defendant through her son as her agent, the defense is that the goods were bought of the son as his property, it is competent for the defendant to show, in support of said defense, that plaintiff paid nothing for the goods, and that, whatever the arrangements were between plaintiff and her son, they ■ were only a cover to conceal the property from the creditors of the son, who was the real owner of the goods. ■</p>

■Mandamus. Relator was appointed receiver of the Central Michigan Savings Bank, upon bill filed by the Banking Commissioner. Thereafter one Addie F. Buck, without applying for leave to intervene, filed her petition in said suit for an order requiring relator to pay „an alleged claim held by her against the bank, to which petition relator interposed a plea in abatement. whereupon relator applied for mandamus to compel the relief desired.

The circuit judge for Shiawassee county, Hon. C. H. Wisner, upon information furnished him under oath, filed in the Supreme Court ’ certain charges against respondent, an attorney at law, praying that a hearing be •had thereon, and, if such charges be substantiated, that respondent be disbarred.

<p>Findings of fact — Review on appeal — Exemptions—Horse and buggy.</p> <p>1. Findings of fact which are supported by evidence are not open. to review.</p> <p>2. A horse and buggy purchased by a person engaged in the business of an inventor, and in selling machines made under his inventions, for speculative purposes only, and not necessary in his business, and held by him for the purposes of' sale, are not exempt under How. Stat. § 7686, subd. 8, from-levy and sale on execution.1</p>

Mandamus. Relator applied for mandamus to compel respondent to set aside an order vacating a judgment in an attachment suit and dismissing the' writ. The facts are stated in the opinion.

<p>Master and servant — Injury to braheman — Cause of accident— Safe place — Construction train — Assumption of rish.</p> <p>1. Where, in an action against a railroad company for the negligent killing of a brakeman, there is an utter lack of evidence to show that the decedent came to his death in the manner-alleged in the declaration, a verdict should be directed for the defendant.1</p> <p>2. The general rule imposing upon a railroad company the duty of furnishing its employés a safe place in which to work is subject to the qualifications that, when a new road is being built, the employé cannot complain of its imperfect ■condition, but must take the risks naturally incident to such employment, and that he assumes greater risks upon such a road than' upon a completed one, where he might expect that the track was clear and all obstructions removed.</p> <p>3. Where a danger incident to a given employment is apparent, the employé assumes the risk.</p>

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

<p>Mutual benefit associations — Action on certificate — Foreign receiver— Action in State court.</p> <p>1. The articles of association of a mutual benefit society provided that the benefits to which members were entitled should be paid at such times as might be provided by the laws governing such payment, or in the certificate of membership. After the issuance of a certificate which provided that if the member to whom it was issued should for seven years pay his assessments punctually, and maintain himself in good standing in the order, he should be entitled to a sum not exceeding the principal amount named in the certificate, less the amount which he might have already received as benefits, etc., a by-law was adopted providing that final benefits should, when found correct, he adjusted within 90 days from the date of the expiration of the certificate. And it is held that the by-law applied only to such certificates as, by their terms, made the benefit payable at the time fixed by the by-law.</p> <p>2. On the same day that a receiver was appointed in another state for a foreign benefit association having local branches in this State, a member to whom a certificate had been issued by one of said local branches brought suit thereon in- this State, and supplemented such suit by garnishment proceedings. And it is held that, in the absence of proof that the appointment of the receiver preceded the commencement of the garnishment proceedings, the pendency of the suit in which such appointment was made did not deprive the member of his remedy at law which he was seeking to enforce.*</p>

Clair. (Eldredge, J., presiding.) • Petition by a railroad company for leave to abandon certain of its road. Petitioner and eight claimants appeal. The facts are stated in the opinion, and in 91 Mich. 298.

<p>Logging contract — Quantum meruit — Conclusiveness of scale.</p> <p>-In a suit by a contraeter to recover upon the quantum meruit the reasonable value of the work performed under a logging-contract, the full performance of which had been prevented by the defendant, it appeared that the contract provided that the scale of the logs, made by scalers agreed upon by the parties, should be conclusive as to the quantity of timber cut, hauled, and delivered by the contractor, as far as regarded payments to be made therefor. And it is held that, in the absence of fraud or gross error,2 the scale so made and established and reduced to writing became the superior and conclusive evidence upon the subject.</p>

<p>Corporations — Appeal bond — Authority of president — Corporate seal.</p> <p>1. The president of a corporation, who is also its general manager, has general authority to appear, to employ counsel, and to answer to suits brought against the corporation, and ' is authorized, without special authority from the corporation, to execute a bond for the corporation on appeal from one . court to another.</p> <p>2. Act No. 162, Laws of 1893, which provides that any corporation may have a common seal, which it may alter at pleasure, and that such seal affixed to any instrument purporting to be executed by the corporation shall be prima faeie proof of the due adoption of said seal, and that it was affixed to said instrument by due authority, and that said instrument was in fact lawfully executed by • such- corporation, does not require that the corporate seal be attached to such instrument, but only makes it prima fade proof of due authority whenever it is attached thereto.1</p>

<p>Constitutional law&emdash;Probate of will&emdash;Notice to foreign consul&emdash; Jurisdiction.</p> <p>1. Act No. 64, Laws of 18S7 (3 How. Stat. § 6812), which makes it the duty of the judge of probate, in case any of the heirs of a deceased person upon whose estate administration is sought, or whose will is sought to be probated, are resi-dents of a foreign country, to notify by letter the proper con-sul of such foreign country of the pendency of and the day appointed for the 'hearing of the application for letters of administration or the probate of the will, provides simply for an act on the part of the probate judge not in conflict with How. Stat. § 5801, which provides for public notice by personal service, or publication of the order of the hearing of such application, and therefore is not in conflict with section 25, art. 4, of the Constitution, which provides that no law shall be revised, altered, or amended by reference to its title only, but the act revised, and the section or sections of the act altered or amended, shall be re-enacted and published at length, nor with section 20, art. 4, of the Constitution, which provides that no law shall embrace more than one object, which shall be expressed in its title.</p> <p>2. Only foreign heirs, for whose sole benefit the act of 1887 was enacted, can take advantage of a failure to give the required notice, and they may waive such notice at any time before the estate is closed.</p> <p>3. In a suit by executors upon promissory notes belonging to the estate of the testatrix, it appeared that all of the heirs, except the husband of the decedent and a legatee named in her will, resided in Canada; that the will was admitted to probate in the county where decedent died, and where her husband and said legatee resided; that the judge of probate failed to give the notice required by Act No. 64, Laws- of 1887, ' and that no waiver by said 'foreign heirs of said1 notice had been filed. And it is held that the- failure of the probate judge to comply with the statute diid not deprive Aim of jufisdiction, which he acquired upon the filing of the petition; that the probate of the will was valid as to all parties living within the United States; that the foreign heirs are the only ones who can have any interest in contesting the will, or in setting aside the probate; that the executors and their bondsmen- are liable for all the money collected, which must be distributed under the order and direction of the probate court; that payment to them by debtors is valid, and a complete bar to-any further liability; and a judgment) in favor of the defendant, upon a finding that the probate court acquired no jurisdiction to probate the will by reason of the failure of the judge of probate to give said notice, is reversed.1</p> <p>4. The circuit judge found that the notes sued upon were executed by the defendant, and delivered to the payee; that the testatrix; at the time of her death, was the owner of the notes, and entitled to recover thereon; and that there was due on the notes the face amount thereof, with interest from their date at a stated rate. The defendant relied solely upon the alleged want of jurisdiction in the probate court to- probate the will. And it is held that, if the defendant had other grounds of defense which he considered fatal, he should have requested the court so to find, so that the entire controversy might have been settled upon this appeal; that he chose to rely upon the one point, but for which judgment would have been rendered by the court below for the plaintiffs; and that judgment in their favor should be entered in the Supreme Court.</p>

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

<p>Summary proceedings — Bond on appeal — Evidence.</p> <p>1. In an action on a bond given by a lessee on appeal from a judgment of ouster in summary proceedings to recover possession- of the leased premises, conditioned for the payment of all rent due or to become due up to the time when the lessor should obtain possession of said premises, a lease made prior to the expiration of the first lease, for one year after that date, at a fixed rental, is admissible as evidence of the rental value of the leased premises for the time covered by the bond.</p> <p>2. Plaintiff having testified to such rental value, it was competent on cross-examination to show that he actually received a less sum the year before for the use of said premises, and that he furnished heat for the same, said proposed evidence tending to contradict or weaken his testimony as to said rental value.</p>

<p>Taxes — Certificate to assessment roll— Sufficiency.</p> <p>A city charter provided that the hoard of review should attach to the assessment roll a certificate, stating, among other things, that they had estimated the real estate described in said roll at what they believed to be the true cash value thereof, and not at the price it would sell for at a forced auction sale. The charter further provided that no general or special tax should be held invalid for the purpose of collecting the same for want of any matter or thing not affecting the merits thereof. And it is held that, under this latter provision, a certificate identical with that prescribed by the charter, exc'ept that the word “auction” was omitted, is a substantial compliance with the charter, as “forced auction sales” are necessarily included in the broader term “forced sales.”</p>

<p>Mechanic’s lien — Sufficiency of affidavit — Set-off.</p> <p>1. A claim of lien signed and verified by one member of a firm, in which he states that he is such member, giving the names of the remaining members; that he makes the affidavit for and on their behalf; that the firm furnished the material for which the lien is claimed in pursuance of a contract with the contractors; and that there is justly due said firm therefor a specified sum, for which said firm claims a lien, — properly shows the deponent’s interest in and authority to make and verify said claim of lien.</p> <p>2. A building contract provided that the contractors should complete the building to the entire satisfaction of the proprietor and architects, and the architects were given full power to reject all materials and workmanship not in full accordance with the spirit and meaning of the plans, drawings, and specifications, which were declared to form a part of said contract. After twice notifying the contractors to proceed with the work, the architects served a notice upon the contractors that they intended, in order to facilitate the work, to put a force of carpenters on the house, and have factory work ready by a given date; that all charges against the job would go against the contract; but that, if the contractors desired to effect a settlement, the architects were ready to talk to them. The contractors did not respond, or make any effort to comply with the contract, and, after waiting a reasonable time, the architects, who complained not only of the delay, but of the unsatisfactory character of the work, received bids from a number of persons for the completion of the work, and let the contract to the lowest bidder. The contractors neglected on demand to deliver up the plans and specifications, and the eontraetee was obliged to pay the architects for new ones. And, in proceedings by subcontractors to enforce a claimed lien, it is held that the eontraetee was entitled to offset as • against the original contractors or the subcontractors the actual cost of the completion of the work, including the amount paid the architects for new plans and specifications.</p> <p>3. The court refused to allow the amount paid by the eontraetee to subcontractors wbo did the plastering, included in the original contract, and wbo refused to proceed unless tbe contractee would guarantee tbe payment to them of tbe contract price for said work, which tbe contractee did. And it is held that he should have been allowed said item.</p>

<p>Malicious prosecution — Advice of counsel — False imprisonment.</p> <p>1. Where, in a suit for malicious prosecution in causing the arrest of the plaintiff on a criminal charge, it appears that the defendant fairly submitted to his counsel all the facts that he knew were capable of proof, and acted bona fide on the advice given in making the complaint, he negatives the want of probable cause, and is not liable, even though the facts did not clearly warrant the advice and prosecution.1</p> <p>2. Where a party goes before a magistrate to make a criminal complaint, accompanied by counsel, expecting to make complaint in writing, and that a warrant will issue in the usual way, and is in no manner at fault that it does not so issue, he cannot be held liable for the act of the magistrate in directing the arrest of the respondent without a warrant.</p>

<p>Life insurance — Surrender of policy — Evidence.</p> <p>1. In a suit by an administrator upon a policy of insurance payable to the decedent, his executors, administrators, or assigns, the defendant sought to defeat a recovery by proof of the surrender of the policy, and the issuance of a policy payable to certain beneficiaries therein named. And it is held that plaintiff can recover only upon proof of the existence' of the first policy, and the question of such alleged surrender was properly left to the jury.</p> <p>• 2. A clerk or stenographer in the office of the general agent of an insurance company is not an officer or agent of the company, within the meaning of that portion of 3 How. Stat. § 7545, which provides that when any suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person against a corporation or its assigns, no person who is or has been an officer or agent of any such corporation shall be allowed to testify at all in relation to matters which, if true, must have been equally within the knowledge of such deceased person.1</p> <p>3. The mere fact that a life insurance policy is returned to the general agent of the company, and by him to the company, for the sole purpose of changing the terms of the payment of the premiums and the beneficiary, does not operate to cancel the policy, or give the company the right to demand a new health certificate.</p> <p>4. In a suit by an administrator upon an insurance policy, the main issue of fact involved was whether or not the policy had been surrendered, and a new one issued in its place. The policy sued upon provided for the payment of an annual premium, while the one issued, as claimed by the defendant, on the surrender of said policy, called for the payment of the same premium in quarterly installments, and made the insurance payable to certain beneficiaries therein named. After the negotiations for the change in the policy, the premium note given on the issuance of the first policy was paid, and the plaintiff claimed that such payment established the validity of said policy; that the assured had then the right to treat it as in force, and, having tendered the payment of the second annual premium, the plaintiff was entitled to recover. The testimony on the part of the defendant tended to show that the mistake in collecting the full amount of the note was promptly corrected, the assured notified, and the amount collected, less one quarter’s premium, tendered back, and that, at the time of the death of the assured, the defendant held the second policy for delivery to the assured when called for. And it is held that, under such circumstances, the collection of the note cannot be held to have operated as a waiver of the new arrangement, if one was made, and to have conclusively established the restoration of the first policy;, and that it was a question for the jury to determine whether, under all of the evidence, such an agreement was made, and whether it was in force.</p>

<p>Railroad companies — Purchase on foreclosure — Defective crossing— Proximate cause.</p> <p>1. The obligation imposed upon a railroad company by 3 How. Stat. § 3323, subd. 5, as amended by Act No. 90, Laws of 1891, to restore a highway across which it has constructed its road to its former state, as near as may be, and to construct suitable crossings for the passage of teams, rests equally upon a railroad company which receives a conveyance under 3 How. Stat. § 3408», of the railway or railroad tracks and their appurtenances of another company from the purchaser thereof upon the foreclosure of a mortgage of the property and franchises of said eompahy.i</p> <p>2. Where, upon receiving such conveyance and commencing to operate the railroad so conveyed, the railroad company- finds that in order to make the approach to a bridge, which its predecessor found it necessary to construct by reason of a cut at a point where its road crossed a public highway, reasonably safe for public travel, it was and is necessary to erect barriers at the sides of said approach, which duty has not been performed, it is the duty of the company receiving said conveyance to erect such barriers, and it will be liable for an injury thereafter received by reason of its failure to perform said duty.</p> <p>8. A railroad company, in order to enable the public to pass over a bridge which it had erected over a cut at a point where its road crossed a public highway, constructed an approach to said bridge from dirt taken from the cut. Said approach was built as steep as the dirt would lie, was about 16 rods long, and, at the place where plaintiff received the injury co-m- . plained of, was 12 and one-third feet wide, and 13 and one-third feet high from the natural level of the ground on either side. Before the building of the bridge and approach, the ' highway was perfectly safe for public travel. And it is held that it was a question for the jury to determine whether barriers were or were not necessary; citing Malloy v. Township of Walker, 77 Mich. 448.</p> <p>4. Plaintiff was riding in a sleigh, drawn by a horse 13 years old, kind and gentle, and which had been safely driven over the bridge a great many times before. * At the foot of the approach the driver, in order to lighten the burden of the horse, the traveled track being barren of snow, got out of the sleigh, and walked beside and drove the horse from the right side. While thus driving in the center of the track, and about 3 or 4 feet from the edge of the embankment, as shown by plaintiff’s evidence, the horse made a sudden shy to the right, went over the embankment, drawing the sleigh after him, and plaintiff was thrown out and injured. The defendant’s evidence tended to show that the sleigh, an the point where the tracks went off, was being drawn within a foot and a half or two feet of the embankment; that the roadbed was muddy, but along the side there was some snow; that there was a path along the embankment on each side;, and one of defendant’s witnesses testified that he saw plaintiff and the driver just as they were driving up the approach, and it looked as if the horse stumbled or slipped, lost his bal-’ anee, and fell over the embankment. It appeared from all of the evidence that there was no train coming, no teams' near the horse, or other thing to frighten him, and that there" was no defect in the highway. The jury, under a proper1 charge, found that the horse was under the control of the-driver. And it- is held that it cannot be said, as matter of' • law, 'that the mere shying of the horse, and not the improper and dangerous condition of the highway (absence of barriers), was the proximate cause of the injury; that they were' apparently concurring causes, — the one, the shying of the' horse, where neither party can be said to have been in fault; and the other, the defect in the highway, for which, under the finding of the jury, the defendant is liable.</p>

<p>Lease — Assignment—Surrender—JEteletting—Questions for jury.</p> <p>A lessee, in violation of his covenant not to assign the lease or sublet the leased premises without the written consent of the lessor, assigned the lease. The assignee made a second assignment, and, at the request of the lessee, the lessor consented to the occupancy of the premises by the second assignee, coupled with the statement that she should look to the lessee for the rent. The second assignee arranged to sell his interest in the lease, and the proposed purchaser and the lessee, the latter representing the second assignee, called upod the lessor, who, as she testified in an action brought by her against said proposed purchaser to recover rent subsequently accruing, made an oral lease of the premises to him, while he testified that she consented to his occupancy, but told the lessee that she should look to him for the rent. The lessee testified that the lessor said she was satisfied to let the proposed purchaser take the place of the second assignee so long as he paid the rent, and, if not paid by him, she should look to the lessee for it. The second assignee thereupon surrendered the premises to the proposed purchaser. And it is held that these negotiations and circumstances may have amounted to a surrender of the term, and a leasing to the proposed purchaser, which questions were properly submitted to the jury.</p>

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

<p>Case made from Calhoun. (Smith, J.)</p> <p>Assumpsit. Defendant assigns error.</p> <p>The facts are stated in the opinion.</p>

<p>Insurance companies — Authority of State agent — Action on bond— Advances.</p> <p>1. The bond of an insurance agent was conditioned for the payment over of all moneys which he should thereafter owe the company, either on account of advances to him or otherwise. In a suit upon the bond, the testimony of the’ defendants tended to show that, at a certain date, the agent notified the State agent of the company, who was charged with the duty of making said advances, that ho would no longer work under his contract of employment, and that the sureties in the bond also notified said State agent, through a local agent, that they would no longer hold themselves accountable for the dealings of their principal; that thereupon said State agent assented to a new arrangement, under which future advances were to be made upon the personal credit of the agent. And it is held that, to this extent at least, the relation of the State agent to the transaction was such as to make his acts binding upon the company.</p> <p>• % The court - instructed the jury that the company only had power to charge the sureties for advances to the extent of the payment of - hotel bills, traveling expenses, and other expenses incident to the transaction of the company’s business. And it is held that, assuming that the original contract continued, in the absence of any evidence showing bad faith on the part of the agents of the compauy in making the advances, or which tends to show that they were unreasonable in amount, the limitation as to the amount of advances ought not to have been made.</p>

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

<p>Divorce — Extreme cruelty — Bes judicata — Necessaries—Liability of husband.</p> <p>1. A decree of divorce granted to a wife on the ground of. extreme cruelty is not res judicata of that question of fact so as to prevent the husband from contesting its truth in a suit by a third person against him to recover for neces-saries furnished the wife pending the.divorce proceedings.;</p> <p>2. In an action by an aunt against the former husband of her niece, from whom the niece had secured a divorce on the ground of extreme cruelty, to recover for necessaries furnished the niece pending the divorce proceedings, two letters were produced, written, as the evidence tended to show, by the plaintiff, one to her niece, concluding as follows: “This is from your aunt Jennie, who clothed and fed you and your daughter, and did what your father and mother would not do, so you could put away your husband, and get an old man, because he had more money;” and the other to the defendant, urging him to sue the second husband for damages, the niece having remarried, and promising to furnish the necessary witnesses. And it is held that said letters might well be interpreted as supporting the defendant’s' contention, that the niece left the defendant without justification, intending to institute the divorce proceedings, that she might marry a wealthier man, whom she had already determined upon, all with the knowledge and through the connivance of the plaintiff, and justified a charge that, if the jury" so found the facts to be, plaintiff could not recover.</p>

<p>Error to lug-ham. (Person, J.)</p> <p>Trover. Defendants bring error.</p> <p>The facts are stated in the opinion, and in 93 Mich. 359.</p>

(Dodds, J.) Assumpsit. Upon the trial, defendants sought to raise the question of non-joinder of defendants, which defense the court ruled could not be made under the ■general issue . From a judgment for plaintiff defendants bring error.

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

Mandamus. Relator applied for mandamus to compel respondent to vacate an order granting temporary alimony after an application had been made to have the cause removed to the superior court of Grand Rapids. The facts are stated in the opinion.

<p>Fraudulen t conveyances — Evidence.</p> <p>1. Before a decree is granted in behalf of creditors setting aside a conveyance, it should be made affirmatively to appear that the creditors have been substantially injured by the transfer.</p> <p>2. A conveyance by a husband to his wife of his home farm of 120 acres, in consideration of her agreement, contained in the deed, to pay and discharge a mortgage of $2,550 on the land, and account to his minor children, when the youngest should become of full age, for the homestead, will not be set aside as in fraud of creditors, the highest value'placed upon the farm being $4,200, and the lowest value $3,800.</p>

<p>Justices’ courts — Appeal bond — Insufficiency—Dismissal of appeal— Action on bond — Wstoppel.</p> <p>1. A bond given on appeal from a justice’s judgment, though insufficient in amount, operates as a stay of proceedings; and the appellant has the right, under How. Stat. § 7018. which provides that no appeal shall be’dismissed on account of any informality or imperfection in the appeal bond, if the appellant and his sureties consent to amend the same, or if another sufficient bond, to be approved by the court, shall be filed, to amend the bond or file a new one.</p> <p>2. On appeal from a justice’s judgment, the penalty of the appeal bond was for the same amount as the judgment. On motion of the appellee, an order was made in the circuit court that the appeal be dismissed unless a new and sufficient bond be filed within 10 days. The order was not complied with, and the appeal was dismissed. After an . execution, issued on the justice’s judgment, had been returned unsatisfied, the appellee brought suit on the appeal bond. And it is held that the appellee, in moving to dismiss the appeal in default of a new and sufficient bond, did not release his rights under the original bond until the order of the ’ court for the filing of such new bond had been complied with, and that he was not estopped from bringing suit on the original bond.</p>

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

<p>Case made from Wayne. (Carpenter, J.)</p> <p>Assumpsit. Plaintiff assigns error.</p> <p>The facts are stated in the opinion.</p>

<p>Trespass — Right of flowage — Fishing.</p> <p>1. In trespass for removing signs which the plaintiff had placed in and upon the shore of a mill pond claimed by him, forbidding fishing in the pond, it appeared that the defendant and his wife were the owners of the fee, subject to the right of the plaintiff to flow the land for milling purposes. And it is held that such easement did not give the plaintiff the right to maintain said notices; citing Bay City Gas-light Co. v. Industrial Works, 28 Mich. 182; Bigelow v. Shaw, 65 Id. 341.</p> <p>2. It was competent for the defendant to show, in support of his notice of title, that the fee of the land, was vested in himself and wife.</p>

<p>Case made from Bay. (Maxwell, J.)</p> <p>Assumpsit. Defendants assign error.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal — Point not raised below — Probate of foreign will — Sufficiency of petition.</p> <p>1, A point not raised upon the trial should not be considered on appeal.</p> <p>2. A petition for the probate of a foreign will, which sets forth ■that the petitioner is interested “as a subsequent purchaser of the estate of the deceased,” is sufficient, under How. Stat. § 5800, which provides that “when a copy of such will and, the probate thereof, duly authenticated, shall be produced by the executor, or other person interested in such will, to the probate court, such court shall appoint a time and-place ' of. hearing, and notice shall be given in the samé manner '.■.'■as in the case of an original will presented for probate.’": to give .the. probate court .jurisdiction, it not., being neces7 sary to set forth the proofs of petitioner’s interest; citing Clow v. Plummer, 85 Mich. 550.1</p>

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

Clair. (Vance, J.) Bill to declare void an execution levy as a cloud upon complainants’ title. Defendant Hubbell appeals. Tbe facts are stated in the opinion.

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

<p>Bills and notes — Recoupment.</p> <p>In a suit by a material man upon a note given him by the owner of a building on the order of the contractor' for materials furnished the contractor for use in said building, it appeared that no guaranty was exacted from the plaintiff when the note was given, that no other contract was entered into respecting the material, and that the contractor had accepted the same. And it is held that the defendant could not recoup damages on the ground that the material did not conform to the specifications in the building contract.</p>

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

Certiorari. Petitioner brings certiorari to review proceedings to clean out and extend a drain. The facts are stated in the opinion.

Bill for a partnership accounting. Defendant appealed from an order referring-the case to a special commissioner to state the account. The facts are stated in the opinion. .

Exceptions before judgment from recorder’s court of Detroit. (Chapin, J.) Respondent was convicted of the crime of assault with intent to do great bodily harm less than the crime of murder. The facts are stated in the opinion.

Exceptions before judgment from Bay. (Maxwell, J.) Respondent was convicted of the crime of larceny. The facts are stated in the opinion.

<p>Married women — Liability on contract.</p> <p>The defendant, a married woman, is held liable under the rule of Hirshfield v. Waldron, 83 Mieh. 116, and Meads v. Martin, 84 Id. 306, for medical services rendered by the, plaintiff for her and for her minor daughter by a former marriage, who was living with her, at her request, and charged to her, and for which she agreed to pay.1</p>

<p>Error to Kent. (Adsit, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Negligence — Alighting from moving train.</p> <p>This case falls within the rule laid down in Railway Co. v. Bangs, 47 Mich. 470, and Werbowlsky v. Railway Co., 86 Id. 236; and the court should take judicial notice that an ordinarily prudent person would not have attempted to alight from the train as plaintiff did, after it had passed the station, and was running at a speed of four miles an hour.</p>

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

<p>Appeal from St. Clair. (Canfield, J., presiding.)</p> <p>Bill to quiet title. Defendant appeals.</p> <p>The facts are stated in tbe opinion.</p>

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

<p>Negligence-Gnjury to brakeman — Variance.</p> <p>The declaration in a personal injury case averred that the plaintiff, a freight brakeman, attempted to make a Coupling of a car that had been kicked upon an unballasted siding;'that he was ignorant of the condition of the siding, and could not see it, it being a dark and cloudy night; that plaintiff took two or three steps along on the ties, and while in the act of coupling said kicked-off car to another car, he being at the time between the two cars, he stepped with the train between the rails, and, instead of stepping upon the eartli or a tie, as he expected, stepped between a couple of ties, and was tipped over, his feet falling unexpectedly over a foot, causing- him to lose his balance, his control over his equilibrium and his body and limbs, and his right arm was caught between the two deadwoods of said car, and crushed. The testimony of the plaintiff showed that the cause of the injury was his act in placing his arm between the deadwoods, where it could be and was caught when the moving car came back against the stationary car; that the movement by which his arm was so placed was not involuntary; that he was not thrown, and did not stumble into this position; that he stood with his arm against the stationary car, in a position at that time discovered by him, and waited for the moving car to come against it, and the instant it did so his arm was caught. And it is held that plaintiff’s own testimony fails to show either that he was in the exercise of due care, or that the unballasted condition of the track caused the injury in the manner complained of.</p>

<p>Mortgage — Payment—Principal and agent — Estoppel.</p> <p>1. Notwithstanding the fact that a mortgagor has no actual knowledge of the transfer of the mortgage, payment of the mortgage will not be good, made to a person not in possession of the securities, unless there is an agency in fact to receive the payment; or such facts as estop the assignee from denying the authority of Such person to receive the payment.</p> <p>2. The fact that the interest on the mortgage has been collected from, time to time by such person is not sufficient of itself to justify an inference of authority to receive payment of the mortgage without the surrender of the securities.</p> <p>8. Two or three years after the execution of a mortgage, the mortgagee formed a copartnership, and the firm continued to carry on the business of loaning money on mortgages. After doing business for a couple of years, the firm, with others, organized a mortgage company, which succeeded to the rights of the firm, and conducted the same character of business in the office formerly occupied by said firm. Seventeen days after the execution of the mortgage, it was assigned by the mortgagee, and, with the note and interest coupons, delivered to the assignee, who thereafter held said securities, and, as the interest coupons matured, presented them at the office occupied by the mortgagee when the mortgage was given, and where it was made payable, which occupancy had been transferred to the firm and by it to the corporation, and received from the mortgagee, the firm, and the mortgage loan company, respectively, the money thereon. About the time the mortgage matured, the mortgagor agreed with the mortgage company for an extension of time, and, for the purpose of securing the interest, executed interest coupon® payable to said company or bearer, and also coupons representing a bonus, payable to said company. The mortgage company then secured the consent of the assignee to said extension of time, and turned over to him the interest coupons, which were paid at' the office of the company. Upon the maturity of the mortgage, the mortgagor made a new loan of another party, and paid the old mortgage to the mortgage company, which failed to pay the money to the assignee, and, while it was in his hands, made .an assignment. And it is held that, while the case is a hard one, it does not appear that the assignee has been guilty of any act which ought to estop him from relying upon his ownership and possession of the securities, and insisting upon payment.</p>

Mandamus. Relators applied for mandamus to compel respondent to vacate an order appointing a receiver for the relator company. The facts are stated in the opinion.

<p>Pleading — Amendment—Statute of limitations.</p> <p>1. An amendment of a declaration which introduces a new cause of action cannot be permitted after the statute of limitations has run against the cause of action so sought to be set up; citing Gorman v. Circuit Judge, 27 Mich. 138; Nugent v. Circuit Judge, 93 Id. 462.</p> <p>2. Where the amendment does not introduce a new cause of action, the running of the statute of limitations is arrested at the date of the institution of the suit; citing 1 Ene. PI. & Pr. 621.</p> <p>8. The declaration in a personal injury case averred that the injury was received by reason of the failure of the defendants to provide plaintiff a safe place in which to work, and set out at considerable length the facts relied upon to make a case. And it is held that an amendment alleging that, in the performance of all the matters aforesaid, plaintiff was in the exercise of due care, and did not in any way contribute to any of the injuries thereinbefore and thereinafter stated, and that he was, on the day and year aforesaid, while in the exercise of due care, caution, and prudence, injured, etc., does not introduce a new cause of action.</p>

<p>Inn-Tceeper’s lien — Board of horse.</p> <p>1. An hotel keeper has no inn-keeper’s lien for the board of a horse' received and kept under an express agreement with one not a guest to board the animal.</p> <p>2. Nor will a lien attach under How. Stat. § 8399, which provides that whenever any person shall deliver to any person any horse, etc., to be kept or cared for, such person shall have a lien thereon'for the keeping and care of said animal, and may retain possession- of the same until such charges are paid, where one not the 'owner delivers a horse to an hotel keeper under an express agreement for its board, 'unless the authority, of such person from the owner of the horse to make such agreement is shown.</p>

<p>'Appeal from Montcalm. (Davis, J.)</p> <p>Bill to establish a banker’s lien. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Wayne. (Lillibridge, J.)</p> <p>Negligence case. Plaintiff brings error.</p> <p>Tbe facts are stated in tbe opinion.</p>

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

<p>Evidence — Directing verdict.</p> <p>A land-owner agreed to advance a specified sum, to be used in erecting a hotel on the land, which the party to whom the advances were to be made was to lease for a term of years at a fixed rental, payable quarterly in advance. After the completion of the buildings a lease was executed between "the parties,' by which the rent was made payable at the end of each quarter. The landlord brought suit on the original agreement to recover rent, and the defendants sought to show that the change in the time of payment of rent was agreed upon between the plaintiff and the tenant, and the ■ tenant testified in support of said claim. And it is held that it is apparent that the witness based his claim of a change in the agreement upon the fact that the lease contains the clause as to payment at the end of each quarter, or else that he depended upon an alleged oral agreement, made prior to the making of the original contract, contradicting said contract; that this testimony cannot be construed as tending to show that a change was agreed upon, particularly when the testimony of the attorney who prepared said original agreement and said lease, that there was no agreement for a change in the time of payment of the rent, and of the plaintiff, that he never authorized any such change, is taken into account.</p>

<p>Fraudulent purchase — Rescission—Replevin—Return of property — ' Evidence.</p> <p>1. With a view to the amicable settlement of differences which had arisen between the vendors of a lot of goods and the vendees, the vendors claiming that the goods were fraudulently purchased, an agreement was entered into under which the vendees returned to the vendors a portion of the goods, and were to pay for the remainder upon the terms of the original sale, in consideration of which the vendors were not to bring suit for the recovery of the goods so retained until the bill for the same became due. Sixteen days after entering into said agreement, the vendees gave a trust mortgage on their entire stock to secure certain alleged creditors, most of whom were relatives of one or the other of the vendees. In replevin by the vendors for the goods so retained, there was evidence to support the conclusion, which the jury must have reached in rendering a verdict for the plaintiffs, that the vendees made the original purchase with intent to defraud, and that they entered into said agreement with intent to retain the goods not surrendered for the like purpose. And it is held that the plaintiffs were justified in rescinding the contract and retaking the goods.</p> <p>2. It was not necessary for the plaintiffs to return the goods surrendered to them by the vendees before bringing replevin for the goods which the vendees retained.</p> <p>8. Testimony is not admissible to rebut a statement made by ' counsel in his opening to the jury which there is no evidence ' to sustain.</p> <p>4. It was error to permit the plaintiffs’ attorney to testify to a statement, made by the representative of other vendors in the absence of the vendees, of a conversation he had with a stranger in a street ear that he had sold the vendees a large bill of goods, and that the representative further said that he had ascertained that the vendees had purchased several thousand dollars worth more than they had gotten of him.</p>

<p>Error to'superior court of Grand Rapids. (Burlingame, J.)</p> <p>Case. Plaintiff brings error.</p> <p>The*facts are stated in the opinion.</p>

(Frazer, J.) Bill to require defendant Campau to pay the amount of Ms subscription to the capital stock of defendant corporation. Complainant appeals. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel respondent to vacate on order. The facts are stated in the opinion.

(Chapin, J.) Respondent was convicted of the crime of embezzlement, and sentenced to imprisonment in the State prison at Jackson for two years and a half. The facts are stated in the opinion.

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

<p>Railroad companies — Fires originating on right of way — Evidence —Instructions.</p> <p>1. In an action to recover for the destruction of plaintiff’s barn by fire, caused, as claimed, by the negligent burning of grass and other refuse upon defendant’s right of way by its employés, a witness was asked how he remembered that the wind was blowing so hard the morning of the fire, and answered, “We spoke about it, Mr. Buck and myself.” And it is held that the evidence was admissible, within the rule laid down in Angell v. Rosenbury, 12 Mich. 257; Railroad Co. v. Van Steinburg, 17 Id. 107.</p> <p>2. A request to charge, which failed to recognize a right to recover for setting the fire at an improper time, was properly refused, and a request which made the setting of the fire under circumstances customary with prudent railroad men the test was properly modified by omitting the word “railroad,” while a request for an instruction that, if the fire was carefully set and carefully guarded, there could be no recovery, was properly refused, the propriety o‘f setting the fire at the time it was set being omitted, or, if comprehended under the words “carefully set,” it being susceptible of misinterpretation.</p>

(Burlingame, J.) Bill to restrain defendants from collecting an assessment for a special improvement. Complainants appeal. The facts are stated in the opinion.

<p>Sale — Time of delivery — Waiver.</p> <p>Where a contract for the sale of logs expressly limits the time of delivery to a certain season, the vendor cannot, in the absence of an acceptance of the logs or a waiver of the time fixed for their delivery, insist upon the vendees taking them at a later date, and, if the evidence as to such acceptance or waiver is conflicting, the question is for the jury.</p>

(Donovan, J.) Bill to restrain the defendant from trespassing upon complainant's land. Complainant appeals. The facts are stated in the opinion.

<p> Authority of agent. </p> <p>A finding that defendant’s traveling agent had authority to employ the plaintiff as a salesman in a store, the proprietors of which had been given by said agent the exclusive agency in their city for the sale of defendant’s wares, is supported by' evidence that the defendant accepted the contract made with the proprietors of the store, and shipped to them the wares to be sold; that said contract provided that the defendant should advertise, and in that way aid ¡said proprietors in making sales, also for the hiring of a party to aid in the advertising, for which purpose, among others, the plaintiff was employed; that said agent came to said city to establish an exclusive agency, and that all he did in relation thereto was ratified and approved by the defendant; that a contract of advertising was entered into by the defendant through the agent; that some considerable advertising- was done, one bill for which the defendant paid, and afterwards wrote to the newspaper company that the agent had some little leeway, but had not notified the defendant of the bill before, and requested the newspaper company not to accept any expense on defendant’s account in the future, except with a written order from defendant’s office, but stating that defendant hoped to do some further advertising the next spring with the newspaper company.</p>

Mandamus. Relator applied for manda/mis to compel respondent to quash the service of a writ of garnishment. The facts-are stated in the opinion.

(McKnigiit, J.) Respondent was convicted of murder in the second-degree, and sentenced to imprisonment in the State prison at Jackson for 25 years. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel respondent to vacate an order reviving a divorce suit for the purpose of awarding permanent alimony. The facts are stated in the opinion.

<p>Defective highways — Proximate cause.</p> <p>In a personal injury case it appeared that a highway in the defendant township crossed a ravine by a culvert some 6 feet high; that the highway was built up across the ravine for quite a distance, and at the top was some 30 feet wide, until, arriving within 40 feet of the culvert, it narrowed to 13 or 14 feet on top; that the culvert was 0 feet high, made of planks 16 feet- long, and extended about a foot beyond the embankment, and was of the width of about five feet; that at the south-westerly corner of the culvert, and extending across to the middle of the traveled track, there was a hole, or washout, some 2 feet wide, and from 4 to 7 feet long, and from 1 to 2 feet deep; that there was no railing or barrier along the embankment; that, just as the plaintiff got nearly to the culvert, his horse shied at the hole, and jumped over the embankment on the other side, carrying plaintiff and the buggy with him. One count of the declaration alleged all of the defects as producing the injury complained of. And it is held that the court very properly submitted the question to the jury whether the proximate cause of the injury was-one or all of the defects combined.</p>

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

(Daboll, J.) Bill to declare a mortgage paid and to discharge the same. Defendant filed a cross-bill praying for the foreclosure of said mortgage. Defendant Ross appeals. The facts are stated in the opinion.

(Adsit, J.) Bill to compel the delivery of certain deeds and to quiet title. A portion-of the defendants filed an answer in the nature of a cross-bill, asking that said deeds to complainant and also certain deeds executed to their codefendants be declared void. All of the defendants appeal. The facts are stated in the opinion.

<p>Appeal from Kent. (Adsit, J.)</p> <p>Bill to set aside assignments of mortgages. Complainant appeals.</p> <p>The facts are stated in McGee v. McGee, ante, 602.</p>

(McMahon, J.) Relator applied for mandamtis to compel respondent to audit his claim for services rendered as policeman. Respondent brings certiorari from order granting the writ. The facts are stated in the opinion.

<p>Fraudulent conveyances — Mortgage in excess of debt.</p> <p>1. The taking of a mortgage for an amount in excess of the debt or the'assumed liability is a badge of fraud, and is a fraud in law if the purpose is to protect the debtor’s interest in the property mortgaged from other creditors.</p> <p>2. A careful examination of the evidence, which is returned in the record, is held to lead to the conclusion that the court below was warranted in finding that the mortgages given to the garnishee defendant were given for amounts largely in excess of the amount actually advanced, and with intent to hinder, delay, and defraud the creditors of the mortgagor, and that they were purposely kept from the 'files with intent to defraud, and that they are fraudulent and void as against the plaintiffs.</p>

Exceptions before judgment from Allegan. (Padgham, J.) Respondents were convicted of violating, the local option law. The facts are stated in the opinion.

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

(Coolidge, J.) Petition of tbe Michigan Trust Company for compensation as receiver of defendant company. The receiver and certain of defendants appeal. The facts are •stated in the opinion.

<p>Error to Wayne. (Hosmer, J.)</p> <p>Garnishment proceedings. Garnishee defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Kent. (Grove, J.)</p> <p>Bill to remove a cloud from complainant’s land. Defendant appeals.</p> <p>The facts are-stated in the opinion.</p>

Mandamus. Relators applied for mandamus to compel' respondent to vacate an order sustaining a demurrer to a'bill in chancery. The facts are stated in the opinion.

<p>Bequests to charge — Estoppel—Weight of evidence — Bailroad companies — Action for hilling stock.</p> <p>1. By requesting the submission of a disputed question of fact to the jury, the party preferring the request estops himself from objecting that there was no evidence to establish said • fact.</p> <p>2. A request, in a suit against a railroad company for killing stock, for an instruction that the plaintiff ha® failed to show, by a preponderance of evidence, that the stock were killed by negligence of the defendant, or that plaintiff is entitled to recover therefor, and that plaintiff has failed to make out a case, wherefore the verdict should be for the defendant, is not sufficient to apprise the circuit judge that the defendant stood upon the claim that there was no evidence tending to sustain plaintiff’s case, and it is clearly without the province of the court to withdraw the case from the jury upon the claim that the preponderance of evidence was with the defendant.</p> <p>3. It was for the jury to say whether the positive testimony of a witness, that the bars used to close the opening through which the cattle were claimed to have gotten upon defendant’s track were up on the day the cattle were killed, should be accepted, in view of the fact that his testimony upon the question of the bars being up at other times during the summer was directly disputed by the testimony of other witnesses.</p>

Mcmdamus. ' Relator applied for mandamus to compel respondent to vacate an order refusing to order security for costs. The facts are stated in the opinion.

(Hosmer, J.) Judgment creditors’ bill. Complainants appeal from order refusing to punish defendant for contempt. The facts are stated in the opinion.

<p>Certiorari to superior court of Grand Rapids. (Burlingame, J.)</p> <p>Respondent was complained of for the violation of an ordinance regulating the business of pawnbrokers, junk dealers, etc. The city brings certiorari to review proceedings resulting in his discharge.</p> <p>The facts are stated in the opinion.</p>

<p>Liquor traffic — Sales to husband — Liability of saloon keeper — Evidence — Damages—Commission to take testimony.</p> <p>1. It was not intended by wbat was said in Johnson v. Schultz, 74 Mich. 75, to imply that the wife is wholly without remedy for the wrong done her by furnishing liquors to her husband, which enabled him to continue the habit of habitual drunkenness, which he had already formed.</p> <p>2. In a suit brought by a' wife against a saloon keeper for injury to her means of support and feelings by reason of the sale of liquors to her husband, the evidence showed that the husband had been addicted to drink prior to the time the defendant engaged in the saloon business, and it was not claimed that the defendant was in any way responsible for the drunkenness of the husband prior to that time. Requests on the part of the defendant to charge the jury that if, at the time defendant first sold plaintiff’s husband liquor, he was a confirmed drunkard, the defendant would not be liable for causing or contributing to such condition, but would be only liable for such damages as plaintiff sustained, so far as actual damages were concerned, by reason of selling to him in ti»at condition, and that, if the jury should find tha^ at the time defendant first sold the husband liquor he was a confirmed drunkard, they could assess damages- only for selling to such a man, and not to a sober and industrious man, were refused, and the court instructed the jury that the defendant was not responsible for damages or injury which plaintiff might have suffered by reason of sales of liquor to her husband before defendant went into- the business, but if, after that time, he sold him liquor from which plaintiff suffered injury, even though the husband might have been, at the time when such sales commenced, a man who had -suffered much from drink, or plaintiff had suffered much by reason of the fact that her husband had been a hard drinker, still that would not relieve the defendant from responsibility for such damages as plaintiff might have suffered by reason of defendant’s action. And it is held that the jury could not have misapprehended the proper limit of the inquiry, in view of these instructions.</p> <p>8. Plaintiff’s attorney, in liis opening statement to the jury, stated that. plaintiff’s husband lived in another city a little over a year, and on his return to his former home, where the suit was brought, defendant again threw around him those injurious influences, .and violated the law by selling liquor to Rim. And it is held that this was a general statement of what . the plaintiff proposed- to show, and was not open to exception.</p> <p>4. Plaintiff was permitted to testify, against defendant’s objection, that her husband was, at the time of the trial, dead, to state the date of his death, and to introduce in evidence How. Stat. § 4245, containing the mortality tables. Counsel for plaintiff, on the cross-examination of one of defendant’s witnesses, was permitted, against objection, to ask if the witness had not heard that plaintiff’s husband committed suicide after, a lo-ng debauch, to which question the witness answered that he had heard that the husband was found • dead in his room, but did not know whether or not he was drunk, but, in answer to another question, he stated that he had heard that the husband was accused of being drunk. And it is held that the error in receiving the testimony relative to the death of the husband and his life expectancy was not cured by an instruction that the testimony as to the cause and circumstances of the husband’s death was stricken from 'the case, because hearsay testimony, and that there could be no recovery by reason of any injury which plaintiff might have suffered by reason of his death, whatever the circumstances might have been.</p> <p>6. The jury should be cautioned that • the added .damages in such a case should be such damages as will compensate the plaintiff for injury^ to her feelings occasioned by the wrong of the defendant.</p> <p>6. While it may not be error to refer to exemplary damages as such, yet it has never been the policy of the court to permit juries to award captiously any sum which may appear just to them, by way of punishment to 'the offender, but rather to award a sum in addition to the actual proven damages, as what, in their judgment, constitutes a just measure of compensation for injured feelings, in view of the circumstances of each particular case", citing Scripps v. Reilly, 38 Mich. 10.</p> <p>7. An objection that the return of a commissioner to a deposition does not. show that the oath was publicly administered, as required by How. Stat. § 7439, is not tenable where it appears from the return that the testimony was taken at the office of the commissioner, after the taking by-the witness of the oath prescribed by the instructions annexed to the commission, which required an oath to be publicly administered.</p>

Mandamus. Relators applied for mandamus to compel respondent to set aside an order quashing certain garnishment proceedings. The facts are stated, in the opinion.

(Corbett/J-.)'. Relator applied for mandamus to compel respondent to accept and file Ms bond as a liquor dealer, and brings certiorari to review order denying the writ. The fact's are stated in the opinion.

<p>Error to Van Burén. (Buck, J.)</p> <p>Case. Defendant brings error.</p> <p>Tbe facts are stated in tbe opinion.</p>

Exceptions before judgment from Van Burén. (Buck, J.) .Respondent was convicted of unlawfully conveying into a jail certain keys with intent to aid in the escape of a prisoner. The facts are stated in the opinion.

Exceptions before judgment from Ionia. (Davis, J.) Respondent was convicted of obtaining money by means of false pretenses. The facts are stated in tbe opinion.

<p>Assault — Justification.</p> <p>In a prosecution for an assault alleged to hare been made upon one of several men who were at the time taking up a drain, it appeared that the work was being done under the direction of the highway commissioner; that the respondent, upon his arrival, asked by whose authority the work was being done; that the commissioner replied that it was being done by his authority; and thereupon the respondent made the demonstration claimed to have amounted to an assault towards said employé, as the supposed instigator of the work. And it is held that the court did not err in instructing the jury that the evidence failed to show that said demonstration was made to prevent the 'taking up of the drain.</p>

<p>Foreign insurance companies — Right to sue — Failure to comply with State laws.</p> <p>Under How. Stat. § 8136, which provides that when, by the laws .'Of this State, any act is forbidden to be done by any corporation without express authority by law, and such act shall have been done by a foreign corporation, it shall not be authorized to maintain any action founded upon such act, or upon any liability or obligation, express or implied, arising out of or made or entered into in consideration of such act, a foreign mutual benefit society which, by reason of its noncompliance with the laws of this State, is not authorized to do business therein, cannot maintain an action in this State • to recover from an agent moneys collected by him, under an arrangement with its officers, on assessments by it made upon its Michigan members.</p>

<p>Appeal from Wayne. (Carpenter, J.)</p> <p>Bill to construe a will. Defendant appeals.</p> <p>Tbe facts a.re stated in the opinion.</p>