Volume 106 — Michigan Reports

<p>Error to Kent; Adsit, J.</p> <p>Assumpsit by Leonard L. Conkey against Frank L. Carpenter for sendees as a veterinary surgeon. From a judgment for defendant, plaintiff brings error.</p>

Ejectment by William G. Moran, by John H. Thomas, his general guardian, against William B. Moran and another. From a judgment for defendants, plaintiff brings error.

superior court of Grand Rapids; Burlingame, J. Bill to restrain the collection of a local assessment. Complainant appeals from a decree dismissing the bill.

Clair; Eldredge, J., presiding. Assumpsit by Jennie Gardner against John W. Gardner for the purchase price of land sold -and conveyed. From a judgment for defendant, plaintiff brings error.

Bill by Oscar Walker, as administrator of the estate of Alvah Cady, deceased, against Francis R. Cady, F. Allen Cady, Thomas W. Brainard, and others, to set aside a conveyance. From a decree for complainant, defendants appeal. The bill in this case was filed under 2 How. Stat. § 5884, to set aside a deed made by Alvah Cady to F. Allen Cady, March 5, 1890. The court below held that the conveyance was voluntary, and was therefore in fraud of creditors.

<p>Error to Sanilac; Beach, J.</p> <p>James R. Burwell was convicted of rape, and sentenced to imprisonment in the state prison at Jackson for 15 years.</p>

<p>1. License Fees — Taxation—Police Power.</p> <p>Where a business is subjected to the payment of a fee, it must be with a view to taxation, or to cover the expense of regulation under the police power.</p> <p>2. Municipal Corporations — Licensing Transient Dealers— Authority of Council.</p> <p>A city charter providing that the common council may require transient dealers to obtain license before engaging in business, and may regulate the terms of issuing the same, does not confer authority to tax the business, but merely to license it, to the end that it may be regulated.</p> <p>3. Same — Validity of Ordinance — Discrimination Against NonResidents.</p> <p>Under a charter authorizing the municipality to license and regulate the business of transient dealers, an ordinance imposing a license fee upon non-residents of the city only is invalid.</p> <p>4. Same — Unreasonable Fees — Restraint of Trade.</p> <p>Whether a municipal ordinance which assumes to regulate the business of transient dealers is not unreasonable in requiring the payment of a license fee of $10 a day, and whether, if restricted to non-residents of the city, it is not open to the further objection of being in restraint of trade,— quaere.</p>

<p>Error to Genesee; Wisner, J.</p> <p>Trover by Jennette L. Tunningly against George W. Butcher. From a judgment. for plaintiff, defendant brings error.</p>

Mandamus by William F. Lichtenberg and others against George S. Hosmer, circuit judge of Wayne county, to compel the entry of judgment on certiorari from justice’s court.

<p>Error to Gogebic; Haire, J.</p> <p>Assumpsit by Fabian Osowicki against August Ferrick for labor performed. From a judgment for defendant, plaintiff brings error.</p>

<p>Mandamus by Michael W. O’Brien against Bobert J. Kelley, circuit judge of Alpena county, to compel the vacation of an order overruling a plea in abatement.</p>

Case by George Hanley, for the use and benefit of John T. Ryan, against George W. Balch and others, for alleged conspiracy to wreck a corporation in which Ryan was a stockholder. (See 94 Mich. 315.) From a judgment for defendants upon verdict directed by the court, plaintiff brings error.

Assumpsit by Gurdon K. Jackson, trustee, against the British America Assurance Company on a fire insurance policy. From a judgment for plaintiff, defendant brings error.

Bill by Henry J. Donnelly against William F. Near and others to determine the respective rights of the parties in an hotel built by them, and to wind up the affairs of the concern. Complainant died pending the suit, and it was revived in the name of his administrator, Michael J. Murray. From a decree in favor of complainant, defendant Near appeals.

<p>Error to Kent; Grove, J.</p> <p>Assumpsit by William T. Powers against Fred J. Daily for rent. From a judgment for plaintiff, defendant brings error.</p>

Bill by Myron H. McCarn, administrator of the estate of Eliza Wilcox, deceased, and others, against Gilblas Wilcox, Samuel H. Wilcox, and John M. Granger,, to procure the cancellation and discharge of a mortgage. From a decree for complainants, defendants appeal.

Assumpsit by Alfred Shrimpton & Sons (a corporation) against Simon Rosenbaum and others for goods sold. From a judgment for defendants, plaintiff brings error.

, presiding. Trespass by Olive B. Fisher against James Naysmith, the township of Grand Rapids, and Richard Pickett for the unauthorized grading of a street. Defendant Nay-smith was highway commissioner, defendant Pickett the contractor. From a judgment for plaintiff, defendants bring error. The improvement having been made in good faith, and the value of plaintiff’s premises having been greatly enhanced thereby, she is entitled to nominal damages only.

Case by Jennie Franklin against Henry Frey and others under the civil-damage act. From a judgment for -defendants on demurrer, plaintiff brings error.

Trover by John Isaacs against James H. McLean and James M. Eeed for property levied upon and sold on execution against plaintiff. From a judgment for plaintiff, defendants bring error.

Debt by Anna M. Barnum, for the use of John F. -Murphy, against John Andrews and others, on an appeal bond. From a judgment for plaintiff, defendants bring error.

<p>Error to Wayne; Frazer, J.</p> <p>Assumpsit by Clarkson M. Snedicor against the Citizens' Insurance Company on a fire-insurance policy. From a judgment for plaintiff, defendant brings error.</p>

Trover by Lydia Betz against Michael Brenner for property seized by defendant on execution against plaintiff’s husband, and alleged by her to be exempt. From a judgment for plaintiff, defendant brings error. Louis Betz, the husband of plaintiff, was engaged in the saloon and grocery business in the city of Ann Arbor. His stock was of the value of about $1,100.

, presiding. Assumpsit by tbe St. Johns Manufacturing Company against Orrin W. Munger upon a subscription to the capital stock of the plaintiff. From a judgment for plaintiff, defendant brings error.

<p>1. Fire Insurance — Limitation of Time for Bringing Suit— Amendment of Declaration — New Cause of Action.</p> <p>A declaration upon a fire-insurance policy requiring action to be commenced within 12 months after’ loss may be amended after the expiration of that period by averring the performance by the insured of the conditions precedent contained in the policy. Such an amendment does not introduce a new cause of action.</p> <p>2. Trial — Amendment of Declaration.</p> <p>Where, upon objection being raised to the introduction of evidence under the declaration, the court announced that he would permit. an amendment, and stated of what it should consist, to which plaintiff's counsel assented, it is immaterial that the amendment was not in fact made.</p> <p>3. Trial — Exclusion of Witnesses From Court-Room.</p> <p>The exclusion of witnesses from the court-room is a matter-within the discretion of the trial court. So held where, on the trial of a suit upon a fire-insurance policy, the court permitted plaintiff's assignors to remain, after having made an order excluding witnesses,</p> <p>4. Fire Insurance — Proof of Value of Property Destroyed.</p> <p>In an action upon a fire-insurance policy covering certain drug-store fixtures, evidence of the cost and condition of the property several years previous to the fire is admissible if supplemented by proof that it had not since deteriorated in value.</p> <p>5. Opinion Evidence — Competency op Witness.</p> <p>A witness who testifies that he knows very nearly what soda-water fountains are worth is competent to testify as to the value of a fountaia with which he is acquainted.</p> <p>6. Witnesses — Cross-Examination.</p> <p>Cross-examination of a witness with reference to his habits is competent in the discretion of the court. So held where a witness was questioned in relation to his use of intoxicating liquors. , i</p> <p>7. Witnesses — Refreshing Recollection.</p> <p>A witness may refresh his memory as to articles comprised in a stock of goods that he formerly owned by referring to memoranda made by him from recollection shortly before .the trial.</p> <p>8. Fire Insurance — Proofs of Loss — Inventory.</p> <p>An insurance policy provided that in case of fire the insured should forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon, and render a sworn statement to the company, containing, among other things, the cash value of each item of property, and the amount of loss thereon. Held, that no inventory was required in case of a total destruction of the property.</p> <p>9. Fire Insurance — Instructions—Measure of Damages.</p> <p>Instructions to the jury examined, and held not to be misleading as permitting a recovery for more than the actual value of the property destroyed.</p> <p>10. Fire Insurance — Loss Payable to' Mortgagee — Identity of Incumbrance.</p> <p>A fire-insurance policy provided that it should be void if the insured had misrepresented any material fact, or if his interest was not truly stated in the policy, or in case of any false swearing by the insured, or, unless otherwise provided, if the property was or should become incumbered by a chattel mortgage. Held, that a policy making the loss, if any, payable to J., as his chattel-mortgage interest might appear, was not invalidated because the mortgage was in fact made to D., the note which it secured having been indorsed to J., who was recognized by all parties to be the owner of the mortgage.</p> <p>11. Fire Insurance — Misrepresentations by Insured.</p> <p>Where a fire-insurance policy describes the property insured as contained in a “corrugated ironclad building,” testimony that the structure was of brick, given in reply to a query as to whether it was a frame building, is no evidence of misrepresentation by the insured. '</p>

<p>1. Evidence — Admissions on Former Trial — Cross-Examination.</p> <p>Where a witness testifies to certain admissions made by a party to the action when sworn upon a prior trial, the latter is entitled, upon cross-examination, to elicit all of his testimony then given which may tend to explain the statements which he is claimed to have made.</p> <p>2. Evidence — Admissions Against Interest.</p> <p>Statements of a party litigant adverse to his own claim are always admissible, and it is immaterial that the examination with reference thereto is not conducted with the particularity required in cases of attempted impeachment.</p> <p>3. Partnership — Payment—Request to Charge.</p> <p>An action for lumber sold was defended upon the ground that plaintiff and another, as copartners, had agreed to furnish the lumber and build a house for defendant for a gross sum, which had been paid. Held, that it was proper to refuse an instruction that the plaintiff was entitled to recover if the defendant bargained for the lumber, and if it was used in his house, and had not been paid for, as the request eliminated defendant’s theory.</p> <p>4. Credibility or Witness — Instructions to Jury.</p> <p>The fact that a witness testifies to matters to which he did not testify when sworn upon a former trial of the case does not call for an instruction cautioning the jury* as to his credibility, where he explains that he was not questioned regarding such matters upon the previous trial. .</p> <p>5. Instructions to Jury — Irrelevant Statements.</p> <p>Charge of the court examined, and held to have submitted the issue involved so clearly as not to warrant a reversal because of the inclusion of remarks which might with pro-, priety have been omitted.</p>

Assumpsit by Edwin A. Easch and another against Edward W. Bissell upon a justice’s judgment. From a judgment for plaintiffs, defendant brings error.

, presiding upon original hearing, Carpenter, J., upon supplemental application. Bill of interpleader by William Look against John K. McCahill, as administrator of the estate of James R. McCahill, deceased, and William W. Chapin. Complainant appeals from a decree dismissing his bill. The bill was properly filed. Sprague v. Soule, 35 Mich. 35; Moore v. Barnheisel, 45 Mich. 500; Bank v. Look, 95 Mich. 7.

Case by Augustus Hoffman, by Victoria Hoffman, his next friend, against Michael A. Adams, for personal injuries. From a judgment for plaintiff, defendant brings-error.

Mandamus by Jeremiah Drennan to compel the common council of the city of Wyandotte to reconvene as a board of canvassers, and to recount the votes cast for the office of supervisor, pursuant to relator’s petition. From an order denying the writ, relator brings certiorari.

Bill by the Commercial Bank of Iron Mountain against John M. Hiller and others to foreclose a mortgage. Complainant appeals from a foreclosure decree providing for the release of a part of the mortgaged premises.

Bill of interpleader by the Grand Lodge of the Ancient Order of United Workmen of the State of Michigan against Mary Kohler and others to determine the ownership of the proceeds of a membership certificate. From a decree in favor of the legatees of the deceased member, Julius A. Kohler, defendant Mary Kohler appeals.

<p>Error to Washtenaw; Kinne, J.</p> <p>Assumpsit by Louis J. Liesemer against John Burg. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by William Kroll against the Diamond Match Company for the breach of an agreement for the purchase of land. From a judgment sustaining a demurrer to the declaration, plaintiff brings error.

Case by Henry O. Sterling against Robert O. Callahan under the civil-damage act. (See 94 Mich. 536.) From a judgment for defendant, plaintiff brings error.

Case by Joseph Martin against Marcus D. Elliott for fraud and breach of warranty. From a judgment for defendant, plaintiff brings error.

Trover by Amanda M. Van Dusen against Charles M. King for property seized under chattel mortgage. From a judgment for defendant, plaintiff brings error.

<p>Defective Streets — Contributory Negligence.</p> <p>One who drives at a trot along a street, upon a dark night, ' within four or five feet of a lighted red lantern displayed near the center of the street, and seen by him when several rods distant, is guilty of contributory negligence precluding a recovery for injuries sustained by falling into an excavation thus sought to be guarded.</p>

Bill of interpleader by the Standard Life & Accident Insurance Company against Nettie Gail Catlin and James E. Hawkins, administrator of the estate of Andrew Catlin, deceased, to determine the right to the proceeds of a policy. From a decree in favor of defendant Catlin, the administrator appeals.

Clair; Vance, J. Bill by James B. Judson and Washington G. Wiley against Henrietta Miller and Edward Kessel to reform a deed and a mortgage, and to foreclose the latter. The conveyances described the land as located upon a section other than that alleged to have been intended. Complainants appeal from a decree dismissing the bill.

<p>Error to Monroe; Kinne, J.</p> <p>Trespass guare clausum, fregit by Horace White against Lucien V. Peabody. From a judgment for plaintiff, defendant brings error.</p>

Clair; Vance, J. Bill by Nettie I. Tudliope against Lewis Potts, as surety upon the bond of complainant’s deceased guardian, for an accounting in the matter of the guardianship. Defendant died pending a hearing, and the cause was revived in the name of his administrator, Joseph W. Avery. From a decree dismissing the bill, complainant appeals.

Garnishment proceeding® by the Globe Casket Manufacturing Company against Isaac C. Wolcott, as garnishee of John S. Kinney. From a judgment for the garnishee defendant, plaintiff brings error.

, presiding. Assumpsit by Nellie Tanner against Herbert L. Page for money had and received.

Trespass guare clausum fregit by James Vial against John Hofen. From a judgment for defendant, plaintiff brings error. Defendant could not, by showing title in himself, justify his disturbance of plaintiff’s possession.

Bill by Mary A. Bowman against Frederick Gork and others for the specific performance of a contract for the exchange of lands. From a decree for complainant, defendants appeal.

Log-lien proceedings (two cases) by Adam Oook and John Cook, respectively, against George Oook. Henry Gamble and William O. Weber intervened. From judgments for plaintiffs, the interveners bring error.

Mandamus by the board of supervisors of the county of Wayne to compel tbe circuit judges of Wayne county to vacate a preliminary injunction. Held: and the proposition adopted by a large majority. After the election, more than one-third of the supervisors signed and presented to the county clerk a request for a special meeting to be held May 1st. Notices were given by the clerk in the manner hereinafter set forth.

Garnishment proceedings by the Bay City Brewing-Company against Angus McDonell, as garnishee of Robert Donnelly. From a judgment for the garnishee defendant, plaintiff brings error.

Clair; Eldredge, J., presiding. Case by Sylvesta Mudge Schrader against the city of Port Huron for personal injuries. From a judgment for plaintiff, defendant brings error.

Bill by Hattie E. Comstock against John C. Sharp to compel the removal of an obstruction from a street. From a decree dismissing the bill, complainant appeals If the owner of land exhibits a plat thereof, on which a street, is defined, and sells lots abutting on such streei, with clear reference to the plat, the purchasers of such lots have a right to insist that such street shall forever remain open to the public.

<p>Sale — Specific Performance — Fraudulent Appraisal of Goods.</p> <p>Complainant agreed to sell a stock of goods to defendant, and take in payment certain real estate at specified prices. The - goods were to be invoiced at cost, as shown by the bills, except such as were damaged or shopworn. Each party selected an appraiser. Complainant and his clerks assisted in making the inventory, and the quantity of the goods was determined by them. The invoices were not produced, but complainant represented that the cost price was attached to each article, and the inventory was made upon that basis. Shortly after taking possession of the stock, and before a final settlement, defendant became dissatisfied, and demanded a new appraisal, which was refused. Defendant thereupon had the stock reappraised by three experienced, disinterested persons, having first notified complainant to be present and produce his bills, with which request complainant did not comply. This appraisal was based upon an estimate of the cost of the goods, except as to those damaged, which were invoiced at their present value; and the total valuation of the stock was shown to be much less than by the former inventory. In a suit for specific performance, it appearing that complainant had raised the cost mark on the goods, altered and arranged them so as to conceal damage and shop wear, and misrepresented the quantity to the appraisers, it was held that defendant was not concluded by the original inventory, but should be charged with the amount of the second appraisal only. Grant, J., dissenting.</p>

Bill by the Kalamazoo Spring & Axle Co. and others against Winans, Pratt & Co. and others to set aside certain mortgages. From a decree dismissing the bill, complainants appeal.

Bill by Sarah Crawford against Emanuel Schneider and others for specific performance of contract. From a decree for complainant, defendant Schneider appeals. Specific performance of a building contract will be enforced where there is no other adequate remedy. Dester v. Ross, 85 Mich. 370; Stuyvesant v. New York, 11 Paige, 414; Birchett v. Bolling, 5 Munf. 442; McCorkle v. Brown, 9 Smedes & M. 167; Voorhees v. DeMeyer, 2 Barb. 37; Shaw v. Livermore, 2 G .

<p>1. Fire Insurance — Forfeiture.</p> <p>There is no impediment to agreements for forfeitures in fire-insurance policies, if the parties choose to make them,</p> <p>2. Fire Insurance — Provision for Annual Inventory.</p> <p>Under a fire-insurance policy providing that it shall be void if the insured fail to take an inventory of stock at least once a year, the insured is entitled to a reasonable time after the issuance of the policy within which to make an inventory, if there is none in existence which satisfies the requirements of the policy.</p> <p>3. Fire Insurance — B’ailure to Render Proofs of Loss — Forfeiture of Policy.</p> <p>Where a fire-insurance policy provides that proofs of loss shall be furnished within 60 days after a fire, that the loss shall not become payable until 60 days after such proofs have been received, and that no action shall be sustainable until after compliance by the insured with the requirements of the policy, nor unless commenced within 12 months after the fire, the insured has at least 10 months within which to make his proofs of loss (Steele v. Insurance Co., 03 Mich. 81); but where he brings an action and permits the year to expire without furnishing such proofs, and the provision has not been waived by the insurer, there can be no recovery.</p> <p>4. Same — Estoppel of Company.</p> <p>Shortly after a loss under a fire-insurance policy, an adjuster of the company told the insured that everything was satisfactory as to the household furniture covered thereby, a list of which he had made at her dictation, but that he wanted her to obtain the bills of her store goods, after which, upon notification, he would meet her and make a settlement. The policy provided that the company should not be held to have waived any provision thereof by any requirement or proceeding on its part relating to any examination therein provided for. Held:</p> <p>(1) That there was no waiver of the formal proofs of loss required by'the terms of the policy.</p> <p>(2) That, at most, any waiver was conditioned upon the procuring of the bills, which the insured failed to do.</p> <p>(3) That, it further appearing that the insured was advised, several mmths before the expiration of the time within which proofs of loss might be furnished, that the company was insisting upon the stipulated proofs, and that no prejudice had resulted to her in the meantime, an estoppel could not be predicated upon the conduct of the adjuster, even though the insured could be said to have been misled thereby</p>

Assumpsit by Lucius C. Burt against Edward Long to recover for the support of defendant’s daughter and her child. From a judgment for the plaintiff, defendant brings error.

Assumpsit by the township of Bangor against the Smith Transportation Company for a tax assessed on personal property. From a judgment for plaintiff, do fendant brings error.

<p>Use axd Occupation — Pleading.</p> <p>A declaration alleging that the-defendant agreed, “as per lease attached and made part of this declaration,” to pay plaintiff a specified sum per month, for one year, for the rental of certain premises, and to perform certain other conditions, all of which he had neglected and refused to do, is sufficient if not demurred to, a copy of the lease being attached as stated, to authorize a recovery for use and occupation.</p>

<p>Error to Wayne; Frazer, J.</p> <p>Assumpsit by David Trombly against Isedor Trombly on a promissory note. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by Alfred Greenwood against Charles W. Davis and Richard Mason for the breach of a logging contract. From a judgment for plaintiff, defendants bring error.

Assumpsit by the National Home Building & Loan Association against the Dwelling House Insurance Company upon a fire policy. From a judgment for defendant, plaintiff brings error.

<p>Error to Kalamazoo; Buck, J.</p> <p>Replevin by Manfred House against Andrew J. Turner and Thomas E. Himebaugh. . From a judgment for plaintiff, defendants bring error.</p>

Case by Annie Mackie against the city of West Bay City for personal injuries. From a judgment for plaintiff, defendant brings error.

Bill by Horace C. Hammond and others against Mary J. Welton and John Welton to set aside a deed. From a decree dismissing the bill, - complainants appeal.

<p>Error to Calhoun; Smith, J.</p> <p>Assumpsit by Melissa E. Harris against James W. Harris for services. From a judgment for plaintiff, defendant brings error.</p>

<p>Foreign Corporations — Service or Process — Railroad Companies.</p> <p>There is no statute in Michigan providing for the service of process upon a foreign corporation .where the cause of action did not accrue within the State. 3 How. Stat. \ 8147, which provides that in an action against any railroad company “ in this State ” process may be served upon a station agent or a ticket agent of the company, is supplemental to section 8137, and applies to domestic corporations only.</p>

Joseph W. Loomis was convicted of seduction, and sentenced to imprisonment in the state prison at Jackson for five years.

<p>Interpleader — Injunction—Courts of Co-ordinate Jurisdiction.</p> <p>Where an insurance company has been garnished in the circuit court of one county for moneys admitted to be due under a policy, and has subsequently been sued by an assignee of the insured in the circuit court of another county, an injunction restraining the parties from prosecuting their several suits may properly issue upon a bill of interpleader filed by the company upon the equity side of the court in which suit was first brought, and which thereby obtained jurisdiction of the question in controversy in both cases, namely, the ownership of the fund.</p>

, presiding. Bill by Lorenzo Corey against Herbert Smalley and another to enjoin an execution sale. Complainant. appeals from a decree dismissing his bill.

Assumpsit by John H. Duffle, trustee, against John E. Clark, to recover the value of a stock of goods. From a judgment for defendant, plaintiff brings error.

Summary proceedings before a circuit court commissioner by William G. Gage against Florence A. Sanborn to obtain possession of certain premises. Defendant prevailed before tlie commissioner, and plaintiff appealed to the circuit court. From a judgment for plaintiff, defendant brings error.

<p>1. Libel — Justification—Pleading—Evidence.</p> <p>In an action for libel in charging plaintiff with having committed an assault with intent to do great bodily harm, less than the crime of murder, the specific averment being that plaintiff had seized a pitchfork and thrust it into the thigh of a certain person, evidence that plaintiff ran the fork through the person’s clothing, but that it did not penetrate his thigh, is admissible under a special notice of justification setting up the facts.</p> <p>2. Same — Harmless Variance.</p> <p>Where the defendant in an action for libel, under a special notice of justification, has proved the truth of the charge that plaintiff was guilty of a criminal offense, which constituted the gist of the publication sued upon, the fact that the article averred that plaintiff had been held for trial for such offense, when in fact he had been held for examination only, becomes immaterial.</p> <p>3. Record on Appeal — Instructions—Assignments or Error.</p> <p>Where an instruction to the jury, as contained in the record, includes words that render it manifestly erroneous, but such words are omitted from the instruction as embodied in the assignment of error, the charge will be presumed to have been correctly given.</p>

Mandamus by James A. Scott to compel Rosseau O. Crump and others, constituting the mayor, common council, and recorder of West Bay City, to issue an order for the payment of relator’s salary as comptroller. From an order granting the writ, respondents bring certiorwi'i.

Case by John G-. Wiesinger against the First National Bank of Benton Harbor for the malicious prosecution of an attachment. From a judgment for the defendant, plaintiff brings error.

Assumpsit by Martin Dennison against Edward A. Allen, as township treasurer, to recover money paid under protest for drain taxes. From a judgment for plaintiff, defendant brings error.

<p>Error to Mackinac; Adams, J.</p> <p>Ejectment by Annie M. Miller and others against John W. Davis and another. From a judgment for defendants, plaintiffs bring error.</p>

Bill for partition by Philo C. Fuller and another against Conrad G. Swensberg and others. From a decree dismissing the bill as to a part of the lands, complainants appeal.

' Bill by the Union National Bank of Detroit against Charles A. Rich, trustee, and others, to compel the application of certain of the proceeds of a trust mortgage to the payment of a note held by complainant, and for other relief in connection therewith. Complainant appeals from a decree dismissing its bill.

Summary proceedings by school district No. 11 of Alpine township against Aloys Batsche to recover the possession of certain premises. From a judgment for defendant, complainant brings error.

Bill by James Duffy and others against the city of Saginaw and Henry Melchers, city treasurer, to cancel a paving assessment. From a decree for complainants, defendants appeal.

Trover by Josephine Moret against Albert E. Mason for the conversion of certain logs and hemlock bark out from lands alleged to belong to plaintiff. Defendant claimed under a tax deed. Among other things, the court instructed the jury as follows: “You are instructed that, in actions of trover for timber taken from lands by a trespasser, the measure of damages depends upon whether the trespass is willful and negligent, or the contrary.

Assumpsit by Josephine Bedier against Jay Fuller and others to recover the difference between the actual value of plaintiff’s interest in her father’s estate and the amount for which she sold the same to defendants by reason of their alleged fraudulent representations. (See 95 Mich. 518.) From a judgment for defendants on demurrer to the declaration, plaintiff brings error.

Bill by the Case Manufacturing Company against Judiah P. Perkins and others, in aid of execution. Complainant appeals from a decree dismissing the bill..

Certiorari by Caleb Wolpert to review the proceeding» of Morrell E. Newcomb, county drain commissioner, and Jacob L. McPeek, judge of probate, in the matter of straightening, widening, and deepening a drain. The circuit court dismissed the writ, and plaintiff brings error.

Ejectment by Louis Sands against Joseph (Jambs and another.- From a judgment for plaintiff, defendants bring error. Government' meander lines do not limit boundaries on waters. Twogood v. Hoyt, 42 Mich. 609; Boom Co. v. Adams, 44 Mich. 403; Palmer v. Dodd, 64 Mich. 474; Clute v. Fisher, 65 Mich. 48. When the boundary is the water’s edge, no matter by what terms indicated, the grant extends to the thread of the stream, unless expressly reserved.

Petition of the First National Bank of Kalamazoo for an order requiring George W. Stone, as receiver of the Central Michigan Savings Bank, to recognize and pay the claim of petitioner. From an order granting the petition, defendant appeals.

Assumpsit by Horatio N. Mather against John C. Day to recover commissions for writing insurance. From a judgment for pluntiff, defendant brings error.

Bill by Sarah. J. Benedict against William P. Roome and others to set aside a mortgage on the ground that it was executed under duress. From a decree for complainant, defendants appeal. The mortgage in question was obtained by duress, or by undue influence, amounting to the same thing in law.

, presiding. Bill by Seymour B. Gorham, assignee of Clarence W. and Merrick W. Chapin, against Frederick EL Bennett and others, to set aside certain conveyances on the ground that they were fraudulent as against the creditors of the assignors. The assignee having resigned, the Michigan Trust Company, as receiver, was substituted as complainant, and the cause proceeded From a decree for defendants, complainant appeals.

, presiding. Bill by Seymour B. Gorham, as general assignee of Clarence W. Oliapin and Merrick W. Chapin, against Clarence W. Chapin, Alice B. Chapin, and Jacob Neff, to subject certain lands to the purposes of the assignment. The assignee having resigned, the Michigan Trust Company, as receiver, was substituted as complainant. From a decree for complainant as against defendants Chapin, but dismissing the bill as to defendant Neff, complainant and defendants Chapin appeal.

<p>1. Trial — Objections to Evidence — Appeal.</p> <p>An assignment of error founded upon a general objection to the admission of testimony will not be considered. Counsel must state the reasons for their objections, and will be limited upon appeal to the reasons stated.</p> <p>2. Motion for New Trial — Appeal.</p> <p>Reasons why a motion for a new trial should have been granted, which were not called to the attention of the lower court, will not be considered upon appeal.</p> <p>3. Instructions to Jury — Requests to Charge.</p> <p>Where all of the essential features of a case are covered by the instructions to the jury, it is sufficient. If counsel desire more explicit instructions, requests therefor should be presented.</p> <p>4. New Trial — Breach of Promts of Marriage — Excessive Damages.</p> <p>A verdict of $5,000 in an action for breach of promise of mar. riage is held not to have been so grossly excessive as to require the interference of the appellate court by granting a new trial.</p> <p>5. Breach of Promise of Marriage — Damages—Instructions to Jury.</p> <p>A charge to .ie jury as to the measure of damages in an action for breach oi promise of marriage, which was substantially the same as that given in Miller i Rosier, 31 Mich, 479, was approved.</p>

Noah. W. Cheever and another presented for probate the will of Merchant H. Goodrich, deceased. From an order probating the will, A. Anna North and others appealed to the circuit court. Contestants bring error from a judgment admitting the will to probate, and proponents assign error upon that portion of the judgment awarding costs to contestants.

<p>Error to Ionia; Davis, J.</p> <p>Trespass guare clausum fregit by James W. Toles against James Meddaugh. From a judgment for defendant, plaintiff brings error.</p>

Bill by O. Augustus Boelune and others against the city of Monroe and others to restrain the collection of a special assessment, and for other relief in connection therewith. From, a decree dismissing the bill, complainants appeal.

Garnishment proceedings by the Oliver & Roberts I Wire Company against Francis M. Wheeler, as garnishee of Edward M. Wheeler and Charles E. Lovett, principal defendants. From a judgment for the garnishee defendant, plaintiff brings error.

, presiding. Case by Sarah B. Wooden against the Mt. Pleasant Lumber & Manufacturing Company for the unlawful obstruction of a stream. From a judgment for plaintiff, defendant brings error. Plaintiff owns a grist mill, propelled by water power, created by a dam across the river Chippewa. The dam was built in 1870, without any authority from the board of supervisors.

Assumpsit by Theodore L. Campau against the city of Detroit to recover a balance claimed to be due for constructing a sewer. From a judgment for plaintiff for part of- his claim, both parties bring error.

Assumpsit by the people against Joseph Hanaw and John Kerr on a recognizance. From a judgment for plaintiff, defendants bring error. Modified and affirmed.

Exceptions before judgment from- Tuscola; Beach, J. William R. Conley was convicted of an assault with intent to do great bodily harm less than the crime of murder.

Joseph B. Sawyer was convicted of peddling without a license, contrary to the provisions of a city ordinance, and sentenced to pay a fine of $8, and, in default, that he be confined in the Detroit house of correction until such fine should be paid, not exceeding 10 days.

James W. Smith was convicted of an assault with intent to do great bodily harm less than the crime of murder, and sentenced to imprisonment in the state prison at Jackson for 10 years. The respondent was convicted of assault upon one Ate Goudberg with intent to do great bodily harm, less than the crime of murder. The information also contained a count charging assault with intent to murder.

Olie J. Watkins was convicted of uttering and publishing a forged chattel mortgage, and sentenced to imprisonment in the state prison at Jackson for three years.

Case by Boleslaus Jakoboski, by his next friend, against the Grand Rapids & Indiana Railroad Company for personal injuries. From a judgment for the plaintiff, defendant brings error.

Assumpsit by the Liggett Spring & Axle Company against the Michigan Buggy Company for the breach of a contract to purchase goods. From a judgment for defendant, plaintiff brings error.

<p>Error to Wayne; Hosmer, J.</p> <p>Assumpsit by Charles Schulenburg against Charles A. Uffelmann for rent. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by Anthony Hanish against Robert J. Kennedy and James Kennedy on promissory notes. From a judgment for the plaintiff, the last-named defendant brings error. The defendant James Kennedy was no more than a cosurety with plaintiff as to any of the notes; as to a part, plaintiff was a joint maker; and the sole remedy of plaintiff is to sue for contribution.

Bill by John Bresnahan, administrator of the estate of Daniel Nugent, deceased, against Emanuel Nugent, to subject to the claims of creditors assets alleged to have been fraudulently conveyed by the decedent. From a decree dismissing the bill on demurrer, complainant appeals.

Case by Sehfanja Retaja, alias Sam Johnson, against the Aurora Iron Mining Company for personal injuries. From a judgment for defendant, upon verdict directed by the court, plaintiff brings error. There was negligence in failing to notify plaintiff of the special danger, and assuring him of safety without making proper examination. Cooley, Torts, 661; Railway Co. v. Bayfield, 37 Mich. 210; Swoboda v. Ward, 40 Mich. 424; Brydon v. Stewart, 2 Macq. H. L. Cas. 30, 33 Eng.

Condemnation proceedings by the Cincinnati, Saginaw & Mackinaw Railroad Company against the Bay City & Battle Creek Railroad Company, the Michigan Central Railroad Company, and the Metropolitan Trust Company. Respondents appeal from the award of the commissioners.

<p>Exceptions before judgment from recorder’s court of Detroit; Chapin, J.</p> <p>Norval A. Hawkins was convicted of embezzlement*</p>

Sophia Williams presented a claim against the estate of Marie L. Williams, deceased. The claim was allowed by the commissioners, and the administrator, Byron L. Ransford, appealed to the circuit court. From a judgment for claimant, the administrator brings error.

Case by Ella Metcalf against Belle M. Tiffany for the alienation of the affections of plaintiff’s husband. From a judgment for the plaintiff, defendant brings error.

Case by Jeanette Lambeck against tbe Grand Rapids & Indiana Railroad Company for personal injuries. From a judgment for defendant upon verdict directed by tin* court, plaintiff: brings error.

<p>1. Judgment — Set-Off—Res Judicata — Action on Supersedeas Bond.</p> <p>Where, in an action for fraudulent representations inducing the execution of a logging contract, the plaintiff recovers judgment under a ruling of the court that certain overpayments claimed to have been made on the contract by the defendant should not be considered in reduction of damages, for the reason that they are the subject of another suit between the parties, the plaintiff, in a subsequent action upon the supersedeas bond given on appeal from such judgment, in which defendant claims a set-off to the amount of said overpayments, is estopped to assert that defendant’s claim is barred by the judgment in the former action.</p> <p>2. Statute of Limitations — Set-Off.</p> <p>Under 3 How. Stat. § 8731, a debt alleged by way of set-off is not barred by the statute of limitations unless the statutory period had run against it before the accruing of the claim upon which suit is brought.</p> <p>3. Logging Contract — Overpayments—When Cause of Action Accrues.</p> <p>A logging contract provided that the amount of timber cut should be determined by the saw bills. By the terms of the sawing contract, a specified part of the price per thousand was to be paid upon monthly estimates, and the balance as the lumber was shipped, unless the owner should decide to leave lumber on the dock until the following spring, in which case final payment was to be made when the job was completed. Measurements were to be made by a competent person to be agreed upon by the parties, and were to be conclusive. The sawing was finished the latter part of September. No measurement was made of the lumber left upon the dock, but on November 1st an estimate thereof was furnished, and payment made accordingly. When the lumber was subsequently shipped, it was found to overrun the previous estimate, and payment was made for the excess. Held, that a cause of action for overpayments alleged to have been made on the logging contract did not arise, in any event, prior to the statement of November 1st, so as to set the statute of limitations in motion as against the same.</p> <p>4. Supersedeas Bond — When Eight of Action Accrues — Behearing — Taxation of Costs.</p> <p>A right of action orí a supersedeas bond given under 2 How. Stat. § 8679, accrues upon the rendition of a judgment of affirmance in the appellate court, or, at the latest, upon the earliest date at which costs may be taxed, although the costs are not taxed at that time, and a motion for rehearing is after-wards made.</p> <p>5. Appeal — Behearing—Stay of Proceedings.</p> <p>A motion for rehearing in the Supreme Court does not, of itself, operate to stay proceedings on a final judgment.</p>

Bill by Richard McGee against Jacob W. Walker, administrator of the estate of Bernard McGee, deceased, to restrain the defendant from interfering with complainant’s possession of certain lands. From a decree for complainant, defendant appeals.

Case by Ella Campbell against Lester S. Hudson for malicious prosecution. From an order overruling a demurrer to a plea in abatement, plaintiff brings error.

Proceedings by the city of Grand Bapids under 3 How. Stat. § 300-la et seq., against Joseph A. Bennett and others, to condemn land for the opening and ex .'nsion of Campau street. Bespondents appeal from an order confirming the verdict of the jury.

Bill by Amelia Hodges against Ansel H. Phinney, David Robinson, Jr., and Harriet F. Newcomb, to foreclose a mortgage. From a decree for complainant, defendant Newcomb appeals. The agreed facts in this case are as follows: The bill was filed to foreclose a mortgage executed by Alvin Hodges and wife, the complainant, to William Dutton, August 27, 1877, for $1,200, due five years from its date, with interest payable annually at ten per cent, per annum.

Assumpsit by Sylvester O. Fell against Jay L. New-berry for work and labor, and for damages in being prevented from performing a sawing contract. Plaintiff brings error from a judgment in his favor for less than the amount claimed.

<p>1. Trover — Action by Assignee of Mortgage — Defenses,</p> <p>It is no defense to an action of trover by the assignee of a chattel mortgage agAinst an attaching officer that the attachment was issued before plaintiff’s assignment was executed, where there is evidence of subsequent acts of conversion.</p> <p>2. Same — Damages—Reduction of Mortgage Debt.</p> <p>In trover by a mortgagee for the conversion of a part of the mortgaged chattels, the amount at which the plaintiff bid in the remaining property at mortgage sale, rather than the amount for which he afterwards sold the same, should be applied in reduction of the mortgage debt in determining the amount of his damages.</p> <p>8. Same.</p> <p>In trover by the assignee of a chattel mortgage against an attaching creditor of the mortgagor, the defendant cannot complain that moneys collected by the plaintiff upon certain accounts assigned as collateral to the mortgage, instead of being credited thereon, were applied to the payment of other claims against the mortgagor, to secure which plaintiff held a second assignment of the accounts, executed prior to the levy.</p> <p>4. Same.</p> <p>A., with a view to securing certain creditors, executed a chattel mortgage to B., assigning some accounts as collateral, and then gave a bill of sale of the accounts and the mortgaged property to O. The latter purchased B.’s mortgage, taking an assignment to D., who was interested with O. in the claims secured by the bill of sale. The accounts were turned over to C., who collected the same, and applied the amount upon his debt. In trover by D. against an officer who had seized the goods on attachment against A. subsequent to the several transfers, it was held that the defendant had no cause to complain of the application made of the moneys so collected.</p>

Bill by John R. Trufant against Julia Florence and others to construe the will of Emery Trufant, deceased. From a decree for defendants, complainant appeals. The provisions of the will were as follows: “I, Emery Trufant, considering the uncertainty of life and the certainty of death, ,do make, publish, and declare this my last will and testament, in manner following, that is to say: “First.

<p>Replevin — Rights of Vendee in Land Contract — Timber Cut by Trespasser.</p> <p>The vendee under a land contract giving the right to cut and remove timber can maintain replevin for timber cut on the land by a mere trespasser.</p>

Bill by Daniel Seotten against the city of Detroit and Albert H. Stoll, receiver of taxes, to restrain the collection of an assessment. From a decree dismissing the bill, complainant appeals.

Appeals from Ionia; Moore, J., presiding. Separate bills by Lavalette O’Neil and Nancy Calista Warner against Levi M. Greenwood, administrator of the estate of Lewis Willey, deceased, and others, to enforce a trust. From a decree for the complainant in each case, defendants appeal. No particular form of words is necessary to create a trust. It may be inferred from the facts and circumstances surrounding the transaction.

Case by George L. Burrows, survivor of himself and Amasa Rust, deceased, against the Delta Transportation Company, for the value of lumber destroyed by fire alleged to have been set by sparks from defendant’s vessel. From a judgment for defendant, plaintiff brings error.

, presiding. Case by Margaret Balhoff, administratrix of the estate of George Balhoff, deceased, against the Michigan Central Railroad Company, to recover damages for negligently causing the death of her intestate. From a judgment for plaintiff, defendant brings error.

<p>Exceptions before judgment from Ottawa; Padgham, J.</p> <p>Frank M. Deremo was convicted of illegal fishing.</p>

Exceptions before judgment from Ingham; Person, J. Cornelius Lennox was convicted of obtaining money by false pretenses. It appeared upon the trial that tbe money so obtained was used for tbe purpose for which it was solicited and given, namely, the establishment. of a training school for colored children.

Case by Edward L. Pratt against Addison. T. Brown and William Ryan for an alleged unlawful interference with the driving of plaintiff’s logs. From a judgment for plaintiff, defendants bring error.

Dollie Frank presented a claim against the estate of William B. Morley, deceased, for money alleged to have been intrusted to him for investment. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for claimant, the executor, Horatio T. Morley, brings error.

Bill by Berkley Bump and others against Charles Jepson and another to set aside a tax deed as a cloud upon the title to complainants’ land. Complainants appeal from a decree, dismissing their bill.

<p>1, Divorce — Nonsupport—Evidence.</p> <p>Under a bill for divorce alleging that defendant, though of sufficient ability, has grossly, wantonly, and cruelly neglected and refused to provide a suitable maintenance for complainant, evidence of the use by defendant of insulting and abusive language towards complainant is admissible.</p> <p>3. Same.</p> <p>Evidence reviewed, and held to be sufficient to entitle the complainant to a divorce on the ground of nonsupport. Grant, J., dissenting.</p>

Clair,; Eldredge, J., presiding. Bill by Henry McMorran and John E. Botsford against James H. Fitzgerald and others to abate a nuisance. From a decree for complainants, defendants appeal.

Frank A. Messenger, Jr., applied to the circuit court for the county of Wayne for a writ of mandamus to compel John B. Teagan, one of the justices of the peace for the city of Detroit, to issue a summons in favor of relator wherein damages should be laid at the sum of $500. The •cause was heard before Joseph W. Donovan, circuit judge, who entered an order denying the writ, and relator brings the case to this court by certiorari.

Bill by Neil Nelson and others against the city of Saginaw and George Housner, treasurer of the county of Saginaw, to set aside a sewer tax. From a decree dismissing Hie bill, complainants appeal.

Mandamus by Stanley W. Turner, Auditor General, against the board of supervisors of Bay county and William V. Prybesld, county treasurer, to compel respondents to collect and pay to the State an amount alleged to be due to the State from the county.

Mandamus by Lauren E. Kendall to compel the board of education of the city of Grand Rapids to rescind its action whereby it assumed to adopt a certain series of textbooks for use in the public schools. From an order sustaming a deinuiTer to 'the petition, relator brings certiorari.

<p>Replevin — Non-resident Dependant — Pluries Writs — Dismissal op Suit. '</p> <p>The appearance of a non-resident defendant in replevin cannot be forced by the seizure of property and the issuance of successive writs without expectation of service, and where a considerable period (e. g., 11 months) has elapsed since the issuance of the last writ, and no return thereof has been made, the proceedings should be dismissed upon motion, and an assessment of damages awarded.</p>

<p>Appeal — Settlement or Bill or Exceptions — Furnishing Transcript or Stenographer’s Notes.</p> <p>Under 3 How. Stat. § 6534e2, relating to the stenographer of the Kent circuit, which provides that, if it shall be necessary to procure a transcript of the stenographer’s notes in order to remove a case to the Supreme Court, and the trial judge shall certify to such necessity, the appellant, if he shall prevail, may tax the cost thereof, and that said transcript may be used by the opposite party in proposing amendments to the record, the trial court, upon a certificate that a transcript of the whole or of certain parts of the testimony is necessary in order to settle a bill of exceptions, may require the appellant, at his own expense, to furnish such transcript to the appellee, to enable the latter to prepare amendments to the bill.</p>

Jonathan L. Glutton filed a bill in the Wayne circuit against Annie J. Clutton for a divorce. Defendant interposed a cross-bill, which was dismissed on demurrer, and defendant appealed. Complainant moves to dismiss the appeal, and also applies for mandmms to compel Joseph W. Donovan, circuit judge, to vacate an order awarding temporary alimony, and to permit relator to dismiss his bill.

<p>Mandmms by William Cole to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate an order dismissing an appeal.</p>

, presiding. Bill by Hiram M. Chase against Albert Warner to subject certain real estate to the payment of a legacy. From a decree dismissing the bill on demurrer, complainant appeals. The bill of complaint in this cause contains the following statements: One Susan J. Warner died testate May 28, 1888, leaving a farm of the value of $5,000, and personal property of the value of $2,000.

<p>1. Death by Wrongful Act — Right of Action as Assets of Estate — Non-resident Decedent — Administration.</p> <p>The right of action given to an administrator by 2 How. Stat. §§ 8313, 8314, for negligently causing the death of his intestate, constitutes assets of the estate of the deceased, within the meaning of section 5848, authorizing administration in case of the death of a non-resident “leaving estate to be administered in this State.”</p> <p>2. Directing Verdict — Appeal—Wrong Reason for Right Instruction — When Rule Inapplicable.</p> <p>An instruction that the plaintiff has made no case under the pleadings, if in fact founded upon an erroneous ruling, will not he sustained under the contention that the error was without prejudice because of a fatal defect in plaintiff’s proofs in another particular, where the omission relied upon was clearly an oversight, and might have been supplied had attention been directed thereto upon the trial.</p>