Volume 108 — Michigan Reports

<p>1. Railroad Companies — Killing Stock — Contributory Negligence.</p> <p>One who permits his horse to run at large near the place where a railroad track is unfenced is guilty of contributory negligence, precluding a recovery for the killing of the horse by a passing train, unless it was the duty of the company to maintain a fence at that point.</p> <p>2. Same — Station Grounds — Duty as to Fences.</p> <p>A place at which trains stop whenever there are passengers or freight to be received or delivered is exempt, as station grounds of the company, from the statute requiring it to fence its right of way, although no agent or depot building is maintained there.</p>

Louis Schneider applied to the circuit court for a writ of mandamus to compel Francis A. Blades, controller of the city of Detroit, to draw his warrant upon the city treasurer in .payment of relator’s claim. From an order granting the writ, respondent brings certiorari.

<p>1. Master and Servant — Defective Appliances — Duty as to Inspection.</p> <p>The duty which the master owes to his servants to provide a reasonably safe place in which to work, and machinery in a reasonably safe condition, is not discharged for all time by providing machinery or premises safe in the first instance, nor can it be discharged by providing for an inspection by a fellow-servant.</p> <p>2. Same.</p> <p>The duty of diligence in maintaining machinery in a reasonably safe condition necessarily involves the duty of the master to take such reasonable measures to inform himself from time to time of its condition as common prudence dictates.</p> <p>3. Same — Railroad Companies — Inspection op Engines.</p> <p>Where a railroad company makes no provision for inspection of its engines except by the engineers in charge, who are expected at all practicable times to perform that duty and report defects, they must be held to be the representatives of the company. Grant, J., dissenting.</p> <p>4. Same — Fellow-Servants—Engineer and Brakeman.</p> <p>Where, in such a case, an engineer, before starting upon a trip, discovers that the pushbar upon the front of his engine is cracked, but, thinking that it will answer for the trip, which would otherwise be delayed, he does not report the defect, and, in attempting to make a coupling, the pushbar is broken and the brakeman injured, the question whether it was negligence to use the engine in its defective condition is for the jury. Grant, J., dissenting.</p> <p>5. Injury to Employé — Concurring Negligence.</p> <p>An action will lie by an employe against his master for injm-ies sustained by reason of the concurring negligence of the master and of a fellow-servant.</p> <p>6. Injury to Brakeman — Contributory Negligence.</p> <p>The negligence of a brakeman, if any, in riding upon the pilot of an engine to the place where a coupling was to be made, cannot be said to have contributed to injuries sustained by him in consequence of the breaking of the pushbar while he was standing upon the crossbar of the pilot attempting to make the coupling, it appearing that it would have been necessary for him, in any event, to get upon the crossbar in order to perform such service.</p> <p>7. Opinion Evidence — Strength oe Appliances.</p> <p>A locomotive engineer may properly testify whether, in his opinion, apparatus which broke in making a coupling would have been able to withstand the shock if free from defects.</p>

Bill by the A. P. Cook Company, Limited, to enjoin Francis H. Beard and others from overflowing complainant’s lands. From a decree for part of the relief prayed, ■complainant appeals.

<p>1. Partnership — Accounting—Estoppel.</p> <p>A defendant in a suit for a partnership accounting who denies the existence of the partnership is nevertheless entitled to a just statement of the account in case the partnership relation is established.</p> <p>2. Same — Separate Business of One Partner — Profit on Dealings with Firm.</p> <p>A member of a manufacturing firm who has consented to his copartner’s carrying on a mercantile business upon his own account is not entitled to participate in the profits realized by the latter upon goods turned out by him in payment for materials furnished and labor performed for the firm.</p> <p>8. Same — Dissolution —General Assignment — Power op Solvent Partner.</p> <p>Upon the dissolution of a partnership by one member’s executing an assignment for the benefit of his creditors, the solvent partner, under the general authority vested in him to wind up the affairs of the concern, may mortgage its entire assets to secure certain of its creditors, being accountable only for the observance of good faith.</p> <p>4. Same — Interest on Advances — Compensation por Services.</p> <p>In the absence of an express agreement or a settled practice to the contrary, a partner is not entitled to interest on advances made to the firm, or to compensation for his services.</p>

Bill by Charles E. Thompson, assignee of William H. Cooper and William Creevy, and others, against Orange Noble and the Keystone National Bank, for an accounting and the specific performance of a land contract. Complainant Thompson appeals.

Case by Jolm Saner, administrator of the estate of Frank Saner, deceased, against the Lake Shore & Michigan Southern Railway Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.

<p>Error to Macomb; Eldredge, J.</p> <p>Case by Charles L. Welch against Addison H. Brainard for personal injuriés. Erom a judgment for plaintiff, defendant brings error.</p>

Case by Caroline E. Guilloz, administratrix of the estate of Paul Guilloz, deceased, against the Eort Wayne & Belle Isle Railway Company, for negligently causing the death of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by Arthur A. Omo against Mary T. Bernart, impleaded with Christian Budtz and Eliza Holzworth, upon a contract of guaranty. From a judgment for defendant, plaintiff brings error.

<p>Constitutional Law — Title to Aot.</p> <p>Act. No. 99, Pub. Acts 1889 (8 How. Stat. § 9314d), entitled “ An act to provide for the punishment of crimes in certain cases,” which makes it a felony to take indecent liberties with male children, is in violation of section 20, art. 4, of the Constitution, requiring the object of an act to be expressed in its title.</p>

, presiding. Bill by Andrew J. Webber, receiver of the Ionia Manufacturing Company, against Silas P. Hovey and others, to recover unpaid subscriptions to the capital stock of said corporation. From a decree dismissing the bill, complainant appeals.

Assumpsit by Frank A. Tanner against Thomas Merrill and others for work and labor performed. From a judgment for plaintiff, defendants bring error.

<p>1. Evidence — Record of County Surveyor.</p> <p>The record of a survey by a county surveyor, whichshows neither the name of the person for whom it was made nor the variation of the magnetic needle from the true meridian, as required by section 619, 1 How. Stat., is inadmissible in evidence.</p> <p>3. Same.</p> <p>Under 1 How. Stat. § 616, the record of such a survey, if complying with the requirements of section 619, is presumptive evidence of the facts therein contained, and casts upon the opposing party the burden of producing evidence to rebut the presumption; but whenever other surveys, made by competent surveyors, are introduced, the survey of the county surveyor is of no more binding force than the others, unless it has been acquiesced in by the parties.</p> <p>3. Adverse Possession — Estoppel.</p> <p>In an action of trespass involving the true location of a boundary line, it appeared that, upon defendant’s removing a fence from the line as claimed by the plaintiff, where it had existed for many years, and building it upon the line as claimed by himself, the plaintiff stated that he would have a resurvey to determine where the true line was, and would not abide by the survey which the defendant had caused to be made, and in accordance with which he had erected his fence. Held, that the plaintiff was not thereby estopped from setting up title to the land in dispute by adverse possession.</p>

Bill by George Anderson, trustee, Levi L. Barbour, Dwight C. Rexford, and Henry T. Phillips, against William S. Smith and wife, to foreclose, as a mortgage, the contract set forth in Anderson v. Smith, 103 Mich. 446. From a decree for complainants, defendants appeal. Under the statute in force at the date of the agreement, interest was always recoverable on a usurious contract up to the highest legal rate not prohibited, if the contract so provided (1 How.

Case by Joseph F. Dunneback against the Tribune Printing Company for libel. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Mandamus by the Mint & Pere Marquette Railroad Company to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate an order permitting the filing of an amended declaration.

James Shepherd presented a claim against the estate of Leroy' Shepherd, deceased. The commissioners allowed the claim in part, and an appeal was taken to the circuit court, where referees were appointed to hear and examine the issues involved. From a judgment confirming the report of the referees in part, both parties bring error.

Replevin by the Illinois Leather Company against William H. Elynn, receiver of W. A. Bourke & Company. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by Ida G. Plumb against the Penn Mutual ' Life Insurance Company on a life-insurance policy. From a judgment for plaintiff, defendant brings error. The evidence showed that the insured was not in good health at the time of the delivery of the policy, and the policy, therefore, never became a binding obligation.

<p>Error to Jackson; Peck, J.</p> <p>Replevin by Harry A. Ladd against David Brown. From a judgment for defendant, plaintiff brings error.</p> <p>A party cannot change front after prosecuting his case through the courts upon one theory. Thompson v. Hoioard, 31 Mich. 309; Wetmore v. McDougall, 32 Mich. 276; Henry v. Quackenbush, 48 Mich. 415; Nield v. Burton, 49 Mich. 53; Berringer v. Cobb, 58 Mich. 557; Hamilton v. Frothingham, 71 Mich. 616; Hood v. Olin, 80 Mich. 296.</p> <p>Defendant was erroneously permitted to show, by his own testimony, the terms of his original agreement with the deceased; the statute prohibits not only direct testimony by the survivor regarding a transaction, but also every attempt by indirection to prove the same thing. Kimball v. Kimball, 16 Mich. 211; Dubois v. Baker, 40 Barb. 562; Grey v. Grey, 47 N. Y. 554; Koehler v. Adler, 91 N. Y. 657; Clift v. Moses, 112 N. Y. 426.</p>

Assumpsit by Frank C. Macomber against Edwin B. Wrigbt to enforce the individual liability of defendant for labor performed for a corporation in which he was a stockholder. From a judgment for plaintiff, defendant brings error.

Replevin. From a judgment for plaintiff, defendant brings error. Held: its nature and amount. “It is not material in this case that the Marshall & Ilsley Bank had security on other property than that in dispute in this case, because it has a right to insist upon all of its security until all of its debts are paid in full. * * * ‘ ‘ If you find from the evidence in this case that the plaintiff’s bill of…

The John Hancock Mutual Life Insurance Company had judgment upon a contingent claim against the estate of William R. Hill, deceased, and Clara K. Hanna, an heir of the deceased, brings error.

The John Hancock Mutual Life Insurance Company had judgment upon a contingent claim against the estate of William R. Hill, deceased, and Elmira Bement, an heir of the deceased, brings certiorari.

<p>Error to Jackson; Peck, J.</p> <p>Case by Frank Perry against the Michigan Central Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Mandamus by the city of Detroit to compel William W. Chapin, judge of the recorder’s court of Detroit, to vacate an order quashing certain proceedings instituted by relator under the general act authorizing cities and villages to take private property for the use and benefit of the public, said order having been made upon the theory that the act mentioned had been repealed, so far as it was applicable to the city of Detroit, by Act No. 467, Local Acts 1895.

Bill by Mark T. Bailey against William Peter for a partnership accounting. Complainant died pending an appeal by the defendant, and the cause was revived in the name of his administrator, Ralph Loveland.

<p>Appeal from Wayne; Carpenter, J.</p> <p>Bill by Ferdinand Scheibner against Frank Cohnen and wife to enforce a mechanic’s lien. From a decree for complainant, defendants appeal.</p>

Mandamus by Charles A. Withey against James B. McMahon, circuit judge of Osceola county. Relator was appointed by respondent to conduct the defense, at the expense of the county, of a person charged with the commission of a felony. Having performed the services, he applied to the respondent to fix the compensation to which he was entitled therefor, pursuant to Act No. 96, Pub.

Assumpsit by tbe Mutual Fire Insurance Company of Chicago against the Phoenix Furniture Company to collect an assessment upon certain premium notes. From a judgment for plaintiff, defendant brings error. The facts are stated in the opinion found in the margin, which was filed May 28, 1895, upon the first submission of the case, but which was withheld from publication pending a rehearing.

Assumpsit by Matthew M. Markey and Catherine Sundars against Lorenzo Corey, impleaded with George H. Waldo and Alden M. Varney, on a promissory note. From a judgment for plaintiffs, defendant brings error.

Tro ver by J ohn J anauschek and Lidia J aschusch against Thomas T. Eddy. From a judgment for defendant, plaintiffs bring error.

Bill by James Hagerman and Abraham L. Hagerman against Andrew J. Wigent, executor of the last will and testament of Mary Raney Pridgeon, deceased, and Fred M. Wigent, to restrain the foreclosure of a mortgage. From a decree for complainants, defendants appeal.

Case by Leah V. Garn against Arthur M. Lockard for slander. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Mandamus by Horace S. Maynard, prosecuting attorney for Eaton county, to compel Clement Smith, circuit judge for said county, to vacate an order quashing an information for a violation of the local option law.

Replevin by Benjamin W. Pinch against Aaron H. Willard. From a money judgment in his favor as for a lien upon the property, plaintiff brings error.

Clair; Yance, J. Replevin by Amelia Goeschel against James Fisher, deputy sheriff, and Jacob Bernatz, sheriff, of St. Clair county. From a judgment for plaintiff, defendants bring error.

Case by Gilbert Darling against Robert N. Thompson and Harriet H. Stone for damages resulting from the giving way of a dam, alleged to have been caused by defendants’ negligence. From a judgment for plaintiff, defendants bring error.

Case by Alexander J effrey against the Detroit, Lansing ■& Northern Railroad Company for personal injuries. Prom a judgment for defendant on verdict directed by the court, plaintiff brings error.

Case by Anne Reed against the city of Detroit for personal injuries. From a judgment for plaintiff, defendant brings error.

Mandamus by Enoch Strang to compel Victor H. Lane, circuit judge for Hillsdale county, to vacate an order requiring the giving of an additional notice of an appeal from an order of the probate court admitting a will to probate.

Mandamus by Charles Strang and B. Frank Warner to compel George L. Yaple, circuit judge for Branch county, to strike an amended declaration from the files.

Motion to dismiss appeal. N. Maria Beebe filed a bill in the circuit court for the county of Livingston, in chancery, against Thomas Birkett, to procure the discharge of certain mortgages. The cause was heard before Judge Dodds, and a decree entered for complainant, from which defendant appealed.

<p>1. Railroad Companies — Condemnation Proceedings — Service op Notice.</p> <p>Under 3 How. Stat. § 3332, providing for the service of notice on nonresidents in condemnation proceedings, it is optional whether notice be served on the agent within this State, or on the owner within or without the State.</p> <p>2. Same — Necessity.</p> <p>In proceedings by a railroad company to condemn a gravel pit, the fact that the company already owns large quantities of gravel, and that it has sold a number of car loads, is not conclusive against its right to condemn, but is proper to be considered by the jury, in connection with testimony tending to show that the land in question is necessary to enable the company to operate its existing beds with economy and safety.</p> <p>3. Same — Province of Jury.</p> <p>The jury having determined the necessity, the appellate court will not review the question further than to ascertain that there was evidence to support the verdict.</p>

, presiding. Assumpsit by Sedgwick Dean and another against Alva P. Ellis to recover a balance due upon an account for goods sold. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.

<p>Error to Huron; Beach, J.</p> <p>Case by William T. Jayne against the Sebewaing Coal Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

<p>1. Fraudulent Conveyances — Evidence.</p> <p>Evidence that an alleged fraudulent vendor of chattels was- . in ill health, and required a change of climate, is admissible to show the good faith of the transaction.</p> <p>2. Same — Hearsay.</p> <p>Evidence as to what was said by the son of an alleged fraudulent vendor with reference to where he obtained property subsequently sold by him is inadmissible in a suit between the vendee and an execution creditor of the vendor, being mere hearsay.</p> <p>3. Same — Statements of Vendor.</p> <p>Statements made by a vendor of chattels after the sale, tending to impeach its validity, are inadmissible as against the vendee.</p>

<p>1. Estate in Expectancy — What Constitutes — Deed—After-Acquired Title.</p> <p>To constitute an- estate in expectancy, under 2 How. Stat. § 5524, some legal title must exist, possession under which is postponed to a future period. Therefore, a deed purporting to convey all interest, “as well in possession as in expectancy,” in and to a certain parcel of land, executed by the owner of an undivided interest in fee, will not operate to vest in the grantee an interest thereafter devolving upon the grantor by inheritance, the same not constituting an “estate in expectancy,” within the meaning of the statute.</p> <p>2. Tenancy in Common — Adverse Possession — Evidence.</p> <p>Testimony by the wife of a tenant in common of land, to the effect that her claim of adverse possession is based upon her continuous possession from the time of her marriage, is insufficient to establish title by adverse possession as against her husband’s cotenants, there being nothing to indicate that such possession was hostile to their rights.</p> <p>3. Same — Ejectment—Proof of Ouster.</p> <p>In ejectment by a tenant in common against his cotenant, a plea of adverse possession, interposed by the defendant in another suit between the parties, is competent evidence of an ouster as of the date when the plea was filed; but the averments of fact contained in the plea are not conclusive upon the plaintiff.</p>

Michael J. Moriarty and Patrick A. Ducey presented for probate the will of Daniel J. Moriarty, deceased. The will was disallowed upon a contest made by Mary Ann Moriarty, and proponents appealed to the circuit, where the will was admitted to probate. Contestant brings error.

Joseph; Loveridge, J. Case by Mary Will against the village of Mendon for personal injuries. From a judgment for plaintiff, defendant brings error.

Case by Mae A. Williams against tbe village of Petoskey for personal injuries. From a judgment for plaintiff, defendant brings error.

Bill by Jonathan L. Clutton against Annie J. Clutton for a divorce. Defendant filed an answer in the nature of a cross-bill, to which complainant demurred. From a decree dismissing the cross-bill, defendant appeals.

Case by Frederick Schultz against August Huebner for malicious prosecution and false imprisonment. From a judgment for plaintiff, defendant brings error. The declaration contains two counts, — one for malicious prosecution, the other for false imprisonment. At the conclusion of the proofs, plaintiff withdrew the count for malicious prosecution.

Assumpsit by Simon McDonnell against John J. Rigney to recover commissions on the sale of real estate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Error to Ingham; Person, J.</p> <p>Assumpsit by George B. Martin against Robert Smith, impleaded with M. D. Skinner, on a promissory note. From a judgment for plaintiff, defendant brings error.</p>

Case by Kate T. Moore against Wilford B. Thompson for slander and false imprisonment. From a judgment for plaintiff, defendant brings error.

<p>1. Railroad Companies^Negligence — Inexperienced Employe —Failure to Instruct.</p> <p>Where, in an action against a railroad company by a brakeman for injuries received while attempting to couple cars supplied with double deadwoods, it appears from the plaintiff’s own testimony that he saw and recognized the danger, and attempted to couple the cars in the manner in which he claims it should be done, it cannot be said that the accident happened by reason of defendant’s failure to instruct him how to perform such service.</p> <p>2. Same.</p> <p>Plaintiff having represented, at the time of seeking employment from the defendant, that he had had 27 days’ experience, there was no negligence in failing to warn him of the danger in coupling such cars.</p> <p>3. Same — Assumption op Risk.</p> <p>The risk of injury in the manner stated was assumed by the plaintiff, he having been in defendant’s employ for several weeks, during which time such cars were in constant use.</p>

<p>1. Master and Servant — Scope of Employment.</p> <p>It is not without the scope of the employment of one employed in a car factory to do general work, — such as carrying timbers, painting, lifting, etc., — to assist in hoisting a car upon its trucks by means of a block and tackle apparatus, especially where he has been accustomed to render such service whenever called upon to do so.</p> <p>2. Same — Obvious Danger.</p> <p>A master is not bound to inform an employe of dangers that are open to ordinary observation.</p> <p>3.Same — Fellow-Servants.</p> <p>The foreman of a department in a factory, who works with the ihen under his charge, is a fellow-servant of'the men as to all acts which it is riot the duty of the master to perform.</p>

Assumpsit by Edward A. Ruell against the city of Alpena to recover a balance alleged to be due him for salary as sergeant of police. From a judgment for defendant on verdict directed by the court, plaintiff brings error. By the charter of the city of Alpena prior to 1891, the general police power was vested in the common council.

Bill by John Clee and others against the village of Trenton and others to restrain the collection of taxes. From a decree dismissing the bill, complainants appeal.

Assumpsit by Rudolph Gumz and others, as copartners, doing business under the firm name of R. Gumz & Co., against Henry J. Giegling and Cornelius A. Waal, on a promissory note. From a judgment for plaintiffs on verdict directed by the court, defendant Waal brings error. This suit was brought upon a promissory note for $700 dated August 14, 1893, payable to the order of R. Gumz & Co.,’ one year from date, indorsed by defendant Waal.

<p>Error to Wayne; Frazer, J.</p> <p>Assumpsit by Russell Wheeler and another against Louisa Meyer and John F. Guilloz on á bond. From a judgment for plaintiffs, defendants bring error.</p>

Assumpsit by George F. Pillard, administrator of the estate of Elizabeth Dunn, deceased, against James Dunn, on a promissory note. From a judgment for plaintiff, defendant brings error.

<p>Mandamus — Discretion of Circuit Judge — Equity Practice.</p> <p>While the Supreme Court will hesitate to act in matters involving the discretion of a circuit judge, a mandamus was issued to compel the vacation of an order closing proofs in a chancery case, where it appeared that the issues were important, and ought not to be disposed of without proofs being taken on both sides, and that the failure to take proofs on the part of the relator was due to the illness of one of its solicitors.</p>

<p>Error to recorder’s court of Detroit; Chapin, J.</p> <p>August "Wirth was convicted of assault and battery, and sentenced to imprisonment in the Detroit House of Correction for 90 days.</p>

Case by August Shietart against the city of Detroit for personal injuries. From a judgment for plaintiff, defendant brings error.

<p>1.Chattel Mortgages — Acceptance—Sufficiency.</p> <p>A mortgagee, on being informed of the execution and filing of the mortgage, which had taken place without her knowledge, but pursuant to the agreement of the mortgagor to give her security, authorized her attorney to take possession of the property in her interest, which he did by a third party, and was in actual possession when the property was attached by creditors of the mortgagor. Held, that there was a sufficient acceptance of the mortgage.</p> <p>2.Same — Evidence.</p> <p>On the trial of a suit brought by the mortgagee to recover the value of the property, she was asked whether she was still satisfied with what her attorney had done in taking the mortgage, and answered that she was “if she got her pay, and not before.” Held, that this did not contradict her testimony that, with knowledge of the mortgage, she gave her attorney authority to take possession of the property.</p> <p>3.Same — Trial—Order of Proof — Note Secured by Mortgage.</p> <p>An objection to the introduction of a mortgage in evidence on the ground that the note which it was given to secure, and which is referred to therein, is not offered with the mortgage, and has not been proved, goes only to the order of proof, and is properly overruled. In such case, however, the party is entitled to have the note produced or its absence accounted for; but, if he fails to insist upon such right, he cannot afterwards be heard to complain.</p> <p>4.Same — Uncertainty.</p> <p>The recital in a chattel mortgage of a desire on the part of the party of the first part to secure to “said first party” the pay* ment of the sum named therein does not invalidate the secur ity as to the mortgagor’s creditors, where the mortgage ac knowledges a consideration received from the party of the second part, and the grant is made to said party.</p> <p>5.Same — Sufficiency of Description.</p> <p>The property covered by a chattel mortgage was described as “all the stock in trade, goods, wares, and merchandise, furniture, and fixtures, of every name and nature, situated in the building now occupied by said first party in the village of T.5 and all goods and wares and merchandise and personal property that may hereafter be acquired by us, and placed in said store building, excelling from the terms and conditions of this mortgage such property as is by law exempt from levy and sale upon execution, hereby reserving the right to make selection of said exempt property.” Held, that, applying the test laid down in Willey v. Snyder, 34 Mich. 60, the description was sufficient.</p> <p>6. Same — Continuation op Business-Sales by Mortgagor.</p> <p>A mortgage on a stock of goods is not void as against the creditors of the mortgagor merely because it contains a clause permitting the latter to sell in the usual course of trade.</p> <p>7. Same — After-Acquired Property.</p> <p>A chattel mortgage may lawfully cover after-acquired property.</p> <p>8. Same — Evidence.</p> <p>Where a chattel mortgage is given to secure the mortgagee against liability on certain notes given by her for the mortgagor’s debts, the notes are competent evidence for the purpose of fixing the amount of the indebtedness.</p> <p>9. Same — Fraud—Excessive Consideration.</p> <p>The amount found due on a chattel mortgage given to secure a debt to the mortgagee, and also to secure her against liability on notes given for the mortgagor’s debts, was less than the amount of the mortgage. The mortgagor testified that he supposed, at the time he made the mortgage, that the indebtedness to the mortgagee amounted to the face of the mortgage, and the mortgagee testified that she had not figured up the amount at the time she accepted the mortgage. Held, that the fact that the mortgage was given for more than the amount due was a badge of fraud, but not conclusive evidence thereof, and that the question of the bona Jides of the transaction was properly submitted to the jury.</p> <p>10. Same — Damages—Rights of Surety.</p> <p>As against a stranger or wrong-doer, a mortgagee who is secured as surety on notes of the mortgagor has the right to hold the property, or in lieu thereof, in a suit for its value, »to recover a sufficient amount to indemnify her, although she has not paid the notes.</p> <p>11 Trial — Remarks of Counsel,</p> <p>A judgment will not be reversed because of a statement by plaintiff’s counsel in his opening argument to the jury that the defendant was a wealthy corporation, bent upon crushing the plaintiff, where counsel did not thereafter persist in that line of argument, and no request for an instruction on the subject was preferred by the defendant.</p>

Case by Morgan E. Dowling against William Livingstone, Jr., and others, for libel. From a judgment for plaintiff, defendants bring error. Plaintiff published a book entitled “The Wage-Worker’s remedy,” which was offered for sale to the public generally. The defendants are the publishers and owners of the Detroit Journal, a newspaper printed and published in the city of Detroit. Plaintiff took this book to the editorial room of the Journal, and requested that it be reviewed.

Appéal from Wayne; Carpenter, J. Bill by Cornelius J. Reilly against George Otto and wife to enjoin the breach of a condition in a deed against the maintenance of a saloon or general store on the premises conveyed. From a decree for complainant, defendants appeal.

, presiding. Assumpsit by Stanley L. Lockwood against the Michigan Mutual Life Insurance Company to recover the cash-surrender value of certain policies of insurance. From a judgment for plaintiff on verdict directed by the court, defendant brings error. The plaintiff secured three policies of insurance, for $1,000 each, which were termed accumulative bonds. The annual premium on each was $49.95.

Assumpsit by the People of the State of Michigan, for the use and benefit of Anton Hirth and Fred H. Hirth, against John Powers, Abram B. Knowlson, and James McDermott, upon a statutory bond. From a judgment for plaintiffs, defendants bring error.

<p>Appeal from Shiawassee; Montague, J.</p> <p>Judgment creditor’s bill.by Allan Shelden against Charles E. Shattuck and others. From a decree dismissing the bill, complainant appeals.</p>

Replevin by John J. Murphy against William Mulvena and Henry Denst. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Joseph; Yaple, J. Assumpsit by Marshall L. Howell and others, composing the law firm of Howell, Carr & Barnard, against Frank B. Smith and another, for professional services. From a judgment for plaintiffs, defendants bring error.

Mandamus by the Voigt Brewery Company, Limited, to compel George S. Hosmer, circuit judge of Wayne county, to award term fees to relator, as a part of its taxable costs.

Nellie W. Pope was convicted of murder in the first degree, and sentenced to imprisonment for life in the state prison at Jackson.

Bill by the Detroit, Lansing & Northern Railroad Company against Mel vina R. McCammon to enjoin the prosecution of a suit in ejectment. From a decree dismissing the bill upon a plea in bar interposed by the defendant, complainant appeals.

Bill by Allan Shelden against Edwin. Barlow and another to foreclose a mortgage. Defendant Barlow appeals from an order awarding an execution for a deficiency.

Bill by George A. Hughes, executor of the last will and testament of Minor T. Jones, deceased, Fred Jones, and Della Jones, against Minor T. Jones, Emery Anderson, Mary A. Jones, and one Foster, to set aside a deed, an assignment of mortgage, and a contract, on the ground that they were executed under duress. From a decree for complainants, defendant Minor T. Jones appeals.

Bill by the Marinette Iron Works Company against Lorenzo J. Cody, Fred Proctor, and John F. Carver, to enforce a lien for machinery sold. From a’decree dismissing the bill, complainant appeals.

Bill by Pemelia Kennedy to restrain the Detroit Railway from locating its track upon the side of the street adjoining complainant’s premises. From a decree dismissing the bill, complainant appeals.

<p>Error to Calhoun; Smith, J.</p> <p>Case by "William Woods against the Chicago & Grand Trunk Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

<p>Partnership — Accounting—Review on Appeal.</p> <p>Upon an appeal in a partnership accounting case, it appearing that the accounting made by the court below was full and fair as between the parties, the decree was affirmed.</p>

Assumpsit by Albert Towl against James M. Bradley for goods sold and delivered. From a judgment for plaintiff, defendant brings error.

Agnes Hogmire appealed from an order probating the will of John Sager, deceased. The will was again sustained at the circuit, whereupon she removed the cause to this court by writ of error. The issue involved in this case is the competency of the deceased, John Sager, to execute a will. One of the witnesses to the will was Henry Brooks. The proponents introduced him as a witness, and simply proved its execution, asking no questions as to the mental condition of the testator.

Assumpsit by Fractional School District No. 1, Paw Paw and Antwerp Townships, against Charles E. Yerrington, to recover tuition for a nonresident, pupil. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Debt by George A. Gill against Absalom Backus, Jr., Joseph Van Buskirk, and Bernard P. Cowley, upon a bond given for the release of property attached under the log-lien law. From a judgment for plaintiff on verdict directed by the court, defendants bring error.

<p>Quo warranto by the Attorney General, on the relation of John Harwood, against Francis 0. Stillson, to determine the title to the office of commissioner of schools for the county of Newaygo. On demurrer to the replication. Overruled.</p>

Mandamus by William Graham to compel Orville W. Coolidge, circuit judge of Cass county, to quash the proceedings in a libel suit commenced by capias. One Nelson J. Crosby made an affidavit for a capias ad respondendum, charging the relator with libel. An order for bail was indorsed upon the affidavit. The relator was arrested, and gave a bond conditioned that he would appear in the action by putting in special bail.

<p>Guardian and Ward — Custody of Infant.</p> <p>An infant will not be taken from the custody of persons with whom it was placed upon being abandoned by its mother, and given into the custody of its guardian, where, notwithstanding the fact that the mother of the child had been declared an unfit person to have its custody, the guardian has left in her control an infant brother of the child, over whom he has the same rights of Iguardianship, and where there are other indications that he does not make the petition in good faith, for the purpose of securing to himself the exclusive care, control, and education of the child.</p>

, presiding. Bill by John J. Cathro against Edgar L. Gray and John J. Murphy for the specific performance of a land contract. From a decree dismissing the bill, complainant appeals.

<p>Error to Kalamazoo; Buck, J.</p> <p>Case by James E. Botsford against Nehemiah Chase ■ for slander. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by Adolphus F. Starling .against the Supreme Council of Royal Templars of Temperance upon a benefit certificate. There was a judgment for plaintiff, to review which defendant sued out a writ of error. Plaintiff died pending the hearing on appeal, and the cause was revived in the name of his administrator, John G. Starling.

' Error to Gogebic; Haire, J. Assumpsit by Bruno Lauzon against Paul Belleheumer for board and office rent. From' a judgment for defendant on verdict directed by the court, plaintiff brings-error.

Assumpsit by Louis Rohde and Anthony Wagner against William Biggs to recover a balance alleged to be due on a building contract. From a judgment for plaintiffs, defendant brings error.

Dwight Merriman appealed from an order probating the will of Howard L. Merriman, deceased. The will was again sustained in the circuit, and, a motion for new trial having heen denied, contestant removed the cause to this court by writ of error.

<p>Error to Gogebic; Haire, J.</p> <p>Assumpsit by George S. Steere against William Trebilcock and John A. McLeod on a promissory note. From a judgment for defendants, plaintiff brings error.</p>

Bill by Marilla B. Carmichael against Ada M. Lathrop and Emily B. Lloyd to charge the defendants with the value of certain property alleged to have been conveyed to them in partial satisfaction of their legacies under the will of Henry P. Pulling, deceased. From a decree dismissing the bill, complainant appeals.

Assumpsit by Archibald Brown and Frederick Otto against Charles Neidhold and Edward Neidhold upon an indebtedness alleged to have been assumed by defendants. From a judgment for plaintiffs, defendants bring error.

<p>Appeal from Genesee; Wisner, J.</p> <p>Bill by Edwin Sterner against Catherine Haas and others to enforce a mechanic’s lien. From a decree dismissing the bill, complainant appeals.</p>

<p>1. Sale — Standing Timber — Limitation of Time for Removal.</p> <p>Under a contract for the sale of all of the timber on a tract of land, to be removed by the vendee within a specified time from the date of the contract, the title to the timber remaining uncut at the expiration of the time limited reverts to the owner of the realty.</p> <p>2. Same — Removal of Timber — What Constitutes.</p> <p>The severance of the timber from the soil, and the cutting of the same into sawlogs, is a removal of the timber, within the terms of the contract.</p>

Mandamus by the city of Detroit to compel the board of water commissioners of said city to furnish water, free of charge, to the Detroit House of Correction. From an order granting the writ, respondent brings certiorari.

Assumpsit by Warren P. Reed against Alfred Reed for the breach of a special contract. From á judgment for plaintiff, defendant brings error.

Assumpsit by Martin Landyskowski against Frank Lark and others for the breach of a building contract. From a judgment for plaintiff, defendants bring error. June 16, 1890, the plaintiff entered into a contract with the defendants for the construction of a new schoolhouse, chapel, and parochial residence for the new parish of St. Francis, in the city of Detroit.

Mandamus by Alfred Mosher, Jr., to compel Andrew C. Maxwell, circuit judge of Bay county, to quash a writ of attachment issued against relator and others at the suit of the First National Exchange Bank of Port Huron.

Assumpsit by Phil M. Roedel against the village of White Cloud to recover taxes paid under protest. From a judgment for plaintiff, defendant brings error.

Assumpsit by Augusta Barnhard against the village of White Cloud to recover taxes paid under protest. From a judgment for plaintiff, defendant brings error.

Clarence Beverly was convicted of murder in the second degree, and sentenced to imprisonment in the state prison at Jackson for 25' years.

<p>1. Chattel Mortgage — Increase of Stock.</p> <p>A description of the property covered by a chattel mortgage as “all of the * * * cattle, calves, * * * now-on hand, or that may grow or be raised on our farm during the season,” is sufficiently broad to include calves which, at the time of the execution of the mortgage, were carried by cows owned by the mortgagors.</p> <p>2. Same — Agister’s Lien — Authority of Mortgagor.</p> <p>The fact that a mortgagee of stock, for his own protection, furnished feed for the stock while in the possession of the mortgagor, does not justify an inference that the latter was authorized to pledge the stock for its keeping.</p>

Exceptions before judgment from Berrien; Coolidge, J. Daniel J. McGlaughlin was convicted of performing a marriage ceremony without having received from the parties the license required by law.

<p>Error to Wayne; Donovan, J.</p> <p>Replevin by Hugh R. Ryan against Samuel W. Way-son. Both parties bring error.</p>

Certiorari by John Burt and Christopher T. Roberts to review the action of the board of supervisors of Iron county in removing plaintiffs from their offices as superintendents of the poor.

Joseph N. Smith was convicted in justice’s court of having violated the statute regulating the use of emery wheels. On certiorari to the circuit the conviction was affirmed,' and respondent brings error.

Bill by Wilson Lee against Harriett I. Kellogg and Mary Baker to foreclose a mortgage. From a decree dismissing the bill, complainant appeals. Mary Baker, being the owner of 40 acres of land, on March 30, 1893, executed to one George E. Breck a mortgage thereon for $1,000, collateral to six notes, — one for the principal amount, and five interest coupon notes. The mortgage was recorded on the day following its execution.

Bill by Andrew J. Stebbins, administrator of the estate of Mary Patterson, deceased, against William Patterson, to recover moneys alleged to have been fraudulently obtained from complainant’s intestate. Prom a decree for complainant, defendant appeals.

Mandamus by Alexander D. Esler to compel Allen 0, Adsit, circuit judge of Kent county, to set aside an order vacating a judgment recovered by the relator in a garnishment proceeding.

Assumpsit by George Campbell against Stephen Pratt to recover for medical services rendered to defendant’s infant child. From a judgment for plaintiff, defendant brings error.

<p>Appeal from Otsego; Sharpe, J.</p> <p>Bill by Otis B. Wilson against Elizabeth A. La Tour to compel the discharge of a mortgage. From a decree for •complainant, defendant appeals.</p>

Assumpsit by Andrew J. Emlaw against the Travelers’ Insurance Company upon certain accident insurance policies. Prom a judgment for plaintiff, defendant brings error.

Assumpsit by the Aetna Insurance Company against Charles G. Fowler, Chester Brown, and Gustavus H. Fuerbringer upon an indemnity bond. From a judgment for plaintiff on verdict directed by the court, defendants Brown and Fuerbringer bring error.

, presiding. Bill by John Flood against Walter D. O. Strong and Newton Baldwin to enjoin an administrator’s sale. From a decree for complainant, defendants appeal. One Isaac M. Strong and his son, Walter M. Strong, were bankers in Bancroft, Mich., under the firm name of I. M. Strong & Son. While so in business, on September 1, 1883, they executed a note for$l,000 to defendant Walter D. 0. Strong, and on December 3d, same year, another note for $505.

Assumpsit by Edward S. Farrow against Charles E. Bresler for the breach of a special contract. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Petition by the Auditor General for the sale of lands delinquent for taxes. From a decree setting aside certain taxes upon objections filed by Merritt Chandler, petitioner appeals.

<p>1. Carriers — Limitation of Liability by Contract.</p> <p>A common carrier may limit its strict common-law liability, by express agreement, in such manner as the law can recognize as reasonable, and not inconsistent with sound public policy.</p> <p>2. Same — Bill of Lading.</p> <p>The receipt or bill of lading issued by a common carrier to a consignor, and received by him without objection, and without any insistence upon the common-law liability of the carrier, is a contract between the parties, and fixes their liabilities and rights.</p> <p>3. Same — Negligence of Employés.</p> <p>Such contract is not to be construed as in any way limiting the carrier’s liability for loss or damage due to the neglect or default of its employés.</p> <p>4. Same — Loss Beyond Line of Carrier.</p> <p>A carrier is not liable for loss or injury to property after delivery to a succeedingcarrier, where the contract expressly limits its liability to its own line.</p> <p>5. Same — Loss by Fire.</p> <p>A carrier may by contract exempt itself from liability for loss by fire not caused by its own negligence.</p> <p>6. Same — Negligence—Burden of Proof.</p> <p>Where suit is brought upon the negligence of a carrier,' such negligence must be proved by the party asserting it.</p> <p>7. Same — Limitation as to Amount of Liability.</p> <p>The receipt given by an express company for a package delivered to it for transportation provided that the company should not, in any event, be held liable beyond the sum of $50, unless the just and true value of the property was stated in the receipt. This was not done, nor was the value disclosed by the consignor to the company. Held, that the limitation was reasonable, and, in case of loss, fixed the limit of any recovery by the consignor.</p>

Mandamus by Alfred Mosher, Jr., to compel Andrew C. Maxwell, circuit judge of Bay county, to vacate an order directing a sale of lumber under attachment proceedings.

Bill by Albert H. DeSale against William J. Millard and Thomas Martin to restrain the closing of a private alley. From a decree dismissing the bill, complainant appeals.

Application by Thomas M. Thompson for a writ of certiorari to review the action of Joseph W. Donovan, circuit judge of Wayne county, in refusing to quash an indictment.

<p>1. Criminal Law — Assault with Intent to Ravish — Conduct of Prosecuting Attorney — Offer of Incompetent Evidence.</p> <p>On the trial of a father for assaulting his daughter with intent to commit the crime of rape, the prosecuting attorney offered to show that the respondent, prior to making the assault complained of, had committed similar acts upon the daughter, which offer was objected to and the objection sustained. Held, that, the offer having been made in good faith, and the proposed testimony objected to and excluded, there was no ground for saying that the judgment against the respondent should be reversed.</p> <p>3. Same — Instructions to Jury.</p> <p>Where the only testimony given on the trial of a respondent for an assault with intent to commit the crime of rape is that of the assaulted party, which is positive as to the making of the assault, it is not error for the court to charge the jury that, if they believe said testimony, the respondent is guilty of assault and battery, and that the only question for them to consider is whether or not he intended to commit the greater offense.</p>

Exceptions before judgment from Ingham; Person, J. Amos Whipple, impleaded with Edward Sedweek, was convicted of keeping a saloon open on a legal holiday.

Bill by Artemus Sigler against Jennie Sigler to enforce the specific performance of a parol contract in relation to certain lands, and to enjoin the further prosecution of a suit to obtain possession… Held: and owned by them together. This was done, and the title perfected in- her; the amount of a foreclosure sale being the original amount of the mortgage and interest added.

Assumpsit by Olive M. Fountain against Charles Hutchinson to recover the value of certain personal property alleged to have been sold to the defendant. From a judgment for plaintiff, defendant brings error. Plaintiff’s husband, John Fountain, and defendant, were in partnership in the business of manufacturing cultivators, Fountain owning one-third interest, and defendant two-thirds. Among the partnership assets were a boiler and engine, machinery, and tools.

Bill by Cornelia S. Leonard against the city of Detroit to quiet title. From a decree for part of the relief prayed, complainant appeals.

Assumpsit by Joel H. Gillett and wife against Ezra S. Knowles for a balance due upon a sale of lands. From a judgment for plaintiffs, defendant brings error.

<p>Mandamus by Henry M. Peterson to compel William L. Carpenter, circuit judge of Wayne county, to vacate a levy upon relator’s property.</p>

<p>Petition by Orin B. Mosher against Sally Mosher for leave to file a bill of review.</p>

Bill by Alphonse Fountaine against Prudent Leveque and others for the specific performance of a land contract, and for the cancellation of a deed and mortgage upon the ground of conspiracy and fraud. From a decree granting in part the relief prayed, but allowing the mortgage to remain a lien upon the land, complainant appeals.

<p>Certiorari to Macomb; Eldredge, J.</p> <p>Attachment proceedings by William Cottrell against Gilbert Hatheway and Eveline L. Hatheway. From a judgment dissolving the attachment on petition of Eveline L. Hatheway, plaintiff brings certiorari.</p>

<p>Error to Wayne; Frazer, J.</p> <p>Replevin by Seward E. Clark and Junius I. Bruce, co-partners, as S. E. Clark & Company, against Louis F. Dillman, for a piano. From a judgment for defendant, plaintiffs bring error.</p>

Trespass quare clausum fregit by Dallas D. Alton and another against John Meeuwenberg. From a judgment for defendant, plaintiffs bring error.

<p>Appeal from Isabella; Dodds, J.</p> <p>Bill by John F. Ryan against Alexander Meyer and others in aid of execution. From a decree for complainant, defendants appeal.</p>

<p>Certiorari to Ionia; Davis, J.</p> <p>Trover by Albert Culver against Benjamin Travis. From an order overruling a special appeal from justice’s court, defendant brings certiorari.</p>

<p>Error to Iosco; Simpson, J.</p> <p>Case by Grant Lewis against Temple Emery for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Trover by John M. Longyear and another against the Minnesota • Lumber Company, a foreign corporation. From a judgment for defendant on demurrer to the declaration, plaintiffs bring error.

<p>1. Evidence — Dying Declarations.</p> <p>Upon a trial for murder, evidence that deceased, half an hour after being shot, told the doctor that she believed she could not live, and that he informed her that her case was hopeless, warrants the admission, as dying declarations, of her statements then made to the doctor, and her sworn statements made a few hours later, although she further stated that she hoped for the best, and although she did not die until six days thereafter.</p> <p>2. Instructions to Jury — Requests to Charge — Duty oe Court.</p> <p>A respondent in a criminal case cannot complain that his requests to charge were not given in the exact language in which .they were presented, where the trial judge carefully and correctly stated the law as applicable to the facts in the case and the different theories of counsel.</p>

William H. Thacker was convicted of murder in the first degree, and sentenced to imprisonment for life in the state prison at Jackson.

Assumpsit by Gustave A. Wolf, administrator of the estate of Solomon Wolf, deceased, against the Michigan Masonic Mutual Benefit Association, upon a certificate of insurance. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Certiorari by John W. Berry to review the action of Arthur D. Tinsman, county drain commissioner, in deepening and widening a drain. From a judgment sustaining the .action of the commissioner, plaintiff brings error.

<p>Township Boards — Public Improvements — Estoppel.</p> <p>In a suit against a township for the balance due on a contract for improving a highway, the township defended on the ground that the petition for the improvement, presented to the township board, was not signed, as required by the statute, by a majority of the resident property holders upon the portion of the highway sought to be improved. Held, that the • township was not estopped, by reason of the determination of the township board that the petition presented had been properly signed, from making such defense.</p>

Assumpsit by Joseph W. Eaton and another against Thomas J. Gladwell upon a building contract. From a judgment for plaintiffs, defendant brings error.

Replevin by Christian Fleugel against Henry C. Lards. From a judgment for defendant upon special appeal from justice’s court, plaintiff brings error.

<p>1. Bills and Notes — Negotiability—Agreement to Pay Taxes.</p> <p>A note containing a promise to j>ay a specified amount on a given date, with, interest, and all taxes assessed against the land described in a mortgage given to secure such note, or against the mortgagee’s interest therein, until the note is paid, is nonnegotiable.</p> <p>2. Same — Mortgage—Assignment.</p> <p>In a suit by an assignee to foreclose a mortgage given to secure a nonnegotiable note, it appeared that the note and mortgage were given to raise money to pay ofi! a prior-mortgage on the same land, given by the defendants to complainant’s assignor, and by him assigned, without the knowledge of the defendants, to a stranger to the suit; that the assignor promised to discharge the prior mortgage, but died without doing so. There was nothing in the record to show that the defendants had any knowledge that the complainant proposed to buy the second mortgage, or that-they did any act, or failed to do any act, that caused complainant to make the purchase. Held, that the complainant, took no other or greater equity by his purchase and assignment than his assignor had.</p>

<p>1. Railroad Companies — Negligence—Cattle Guards.</p> <p>A railroad company is not guilty of negligence as to its employes in maintaining a cattle guard at a point where its ordinary right of way joins its station grounds.</p> <p>2. Same — Injury to Employe — Assumption op Risk.</p> <p>A brakeman assumes the risk of coupling and uncoupling cars at a cattle guard, where such guards exist at intervals over the entire road.</p> <p>3. Same — Wing Fences.</p> <p>A railroad company owes no duty to its employés to build fences from its cattle guards ,to the line fence, in order to , advise them of the presence of such guards, — especially where the guard is plainly visible, and is located at a place where, by common experience, it may well be expected.</p>

Mandamus by Charles D. Stebbins, mayor, and others, to compel Edwin A. Burlingame, judge of the superior court of Grand Rapids, to vacate a temporary injunction restraining the issuance of bonds for the purchase of a city market.