Volume 109 — Michigan Reports

Case by Mary E. Webster against James E. Symes and another for the value of certain property destroyed by fire alleged to have been set by sparks from defendants’ mill. From a judgment for plaintiff, defendants bring error.

Bill by Conrad Atwell against Henry F. Barnes, drain commissioner of Lenawee county, and another, to enjoin the collection of a drain tax assessed against complainant’s land. From a decree dismissing the bill, complainant appeals.

<p>Judgment—Saving of Interest.</p> <p>The Supreme Court, having set aside a judgment entered nunc pro tunc, will not modify its order so as to allow the judgment to stand as of the date actually entered, for the sake of saving to the party his interest upon the judgment, inasmuch as interest may he saved in the entry of a new judgment.</p>

Petition by Catherine M. Fillmore for leave to file a bill of review, in her suit against the Great Camp of the Knights of the Maccabees' for Michigan, and others, reported in 103 Mich. 437.

Bill by Jane Smith against Martin Waalkes, impleaded with Baltus Smith, for an injunction. Defendant appeals from an order adjudging him guilty of contempt, and awarding damages to complainant.

Bill by the Fifth National Bank of Grand Rapids against William Dunham, trustee, and others, for an accounting. From a decree for complainant, defendants appeal.

Assumpsit by Cora Cooley against Hiram A. Kinney to recover the agreed consideration for executing the discharge of a certain mortgage. From a judgment for plaintiff, defendant brings error.

Case by Sheridan Tyler against John Nelson for the alleged negligent killing of plaintiff’s horse. From a judgment for plaintiff, defendant brings error.

Bill by James Gow and another to establish the individual liability of the stockholders in the Collin & Parker Lumber Company for the payment of its debts, to foreclose certain mortgages, and for other relief. Prom a decreé dismissing the bill on demurrer of the defendant John A. Elwell, complainants appeal.

Case by Gustav Heller against the Chicago & Grand Trunk Railway Company for injury to cattle shipped over defendant’s road. From a judgment for plaintiff, defendant brings error. Plaintiff’s firm, of which he is the survivor, purchased some cattle at the stock yards in Chicago. His agent • ordered a car from the defendant company in which to ship them. The car was furnished, and was 33 feet long and 8 feet wide upon the inside.

Bill by Henry C. Groesbeck against William C. Bennett .and others to set aside and cancel a pledge of a certain mortgage, and to foreclose the same. From a decree for complainant, defendants Jay S. Bennett and Ira B. Bennett appeal.

Exceptions before judgment from Ionia; Davis, J. James W. Isham was convicted of adultery.

Case by William J. Graff against tbe Detroit Citizens’ Street Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

, presiding. Bill by tbe Michigan Trust Company, receiver of Clarence W. Chapin and Merrick W. Chapin, against Oscar Webber, George W. Webber, Andrew J. Webber, and Joseph T. Webber, impleaded with Clarence W. Chapin and Merrick W. Chapin, to set aside, as in fraud of creditors, the dissolution of a partnership between Oscar Webber and Clarence W. Chapin, to restrain Joseph T. Webber from disposing of certain property, and to obtain other equitable relief.

Charles Rivard and others appealed from an order of the probate court allowing the will of Ferdinand C. Rivard, deceased. From a judgment for contestants, Paul Rivard and Ephraim Rivard, executors and proponents, bring error. Ferdinand C. Rivard died testate in 1892, at the age of 82 years. He owned a farm of 400 acres, situated about six miles from the city of Detroit, on the road to Grosse Pointe. There he was born and always lived. A part of the farm he inherited.

Mandamus by George O. Codd and Henry Plass to compel William L. Carpenter, circuit judge of Wayne county, to vacate an order substituting the Wayne County Savings Bank as complainant in a suit in chancery.

Mandamus by the city of Lansing to compel the Lansing City Electric Railway Company to pave with brick between its tracks. From an order granting the writ, respondent brings certiorari.

Bill by Theopbilus M. Reed, administrator of tbe estate •of Joseph Jourdan, deceased, against Perley Jourdan, to set aside a deed as in fraud of creditors. Prom a decree for complainant, defendant appeals.

<p>Mandamus by the Regents of the University of Michigan against Stanley W. Turner, Auditor General, to compel the payment of interest on the “university fund” at the rate of 7 per cent.</p>

Mandamus by the William Wright Company to compel Robert E. Frazer, circuit judge of Wayne county, to vacate an order setting aside a sheriff’s return to an execution, and an order vacating the appointment of a receiver for one Thomas N. Eordyce.

Bill by Charles H. Wheelock, administrator with the will annexed of the estate of Sarah W. Wheelock, deceased, against the American Tract Society and others, to construe the will of the deceased. From a decree declaring void the residuary clause of the will, defendants appeal.

<p>Exceptions before judgment from Hillsdale; Lane, J.</p> <p>George Knopf and Fred Knopf were convicted of violating the local option law.</p>

Bill by George W. Webber and Andrew J. Webber against Oscar Webber and others to foreclose a mortgage. From a decree for complainants, certain of the defendants appeal.

Replevin by Charles Eitzhugh, Jr., and another, against Leander Rivard. From a judgment for plaintiffs on verdict directed by the court, defendant brings error.

Assumpsit by the city of Detroit against Alexander Lewis and another to recover the amount of taxes assessed against certain mortgages held by defendants as trustees. From a judgment for plaintiff, defendants bring error.

Bill by tbe Michigan Land & Iron Companv Limited, to restrain the Cleveland Sawmill & Lumber Company from repairing and operating a certain dam. From a decree for complainant, defendant appeals.

Case by Frank Banks against Densmore Cramer for failure to fulfill an agreement to insure plaintiff’s property. From a judgment for plaintiff, defendant brings error.

<p>1. Principal and Agent—Statute of Frauds.</p> <p>A contract for the sale of land, signed by an agent whose authority to make the same rests wholly in parol, is within the statute of frauds.</p> <p>2. Same—Ratification.</p> <p>A principal cannot ratify the act of his agent, who has assumed without written authority to execute an agreement for the sale of his principal’s land, so as to render the alleged agreement binding upon the other party, after such party has disavowed liability thereunder.</p>

Assumpsit by Ionia Miller against Perry Brooks to recover a balance claimed to be due upon a contract for an exchange of property. From a judgment for plaintiff, defendant brings error.

Case by Abbie Moore against the city of Kalamazoo for personal injuries. From a judgment for plaintiff, defendant brings error.

Bill by the Michigan Tr ust Company, administrator of the estate of Elisha M. Adams, deceased, against Edward M. Adams, to set aside a deed alleged to have been made in fraud of creditors. From a decree for complainant, defendant appeals.

<p>Error to Alpena; Kelley, J.</p> <p>Assumpsit by John G. Beekman against Lyman J. Sylvester and others to renew a judgment. From a judgment for plaintiff, defendants bring error.</p>

Bill by August Codde against Mary Mahiat to set aside a judgment, and for a new trial. From a decree dismissing the bill on demurrer, complainant appeals. The defendant, Mahiat, obtained judgment against the complainant for breach of promise of marriage, which was affirmed in this court. Mahiat v. Codde, 106 Mich. 387. Upon appeal to this court, complainant gave no bond to stay execution. Execution was issued, some real estate of the complainant levied upon, and sold.

Assumpsit by Thomas Hynes against James Hickey for the breach of a special contract. From a judgment for plaintiff, defendant brings error.

Case by Oscar H. Lewis against John N. Bell for the death of a team of horses, alleged to have been caused by defendant’s immoderate driving. From á judgment for defendant, plaintiff brings error.

Mehitable D. Sanborn and another appealed from an order of the probate court of St. Clair county allowing the final account of John P. Sanborn, as executor of the estate of James W. Sanborn, deceased. Prom a judgment vacating the order and dismissing the appeal, all parties bring error. The following are the provisions of the will material to this controversy: “Fifth.

Clair; Eldredge, J., presiding. In the matter of the petition of Mehitable D. Sanborn, upon appeal from the probate court, the circuit judge entered an order requiring John P. Sanborn, as executor of the estate of Mary Jane Sweetser, deceased, to render an account and to file a new bond, and from this order he brings certiorari.

Replevin by James B. Vining and Donald Ferguson against Charles Millar and another for property seized under a chattel mortgage. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.

Replevin by Seward E. Clark and another against William T. Haupt. From a judgment' for defendant, plaintiffs bring error. Plaintiffs, in 1893, were engaged in the business of selling pianos. The firm then consisted of the present plaintiffs and Edwin A. Long. They employed persons as canvassers to look up prospects for the sale of the pianos.

Assumpsit by Charles H. Jackson against Clarence W. Sessions for the breach of a contract for the sale of timber. From a judgment for defendant on demurrer to the declaration, plaintiff brings error.

Assumpsit by the Marquette Opera House Building Company against Robert J. Wilson and James B. Moore as principals, and Daniel W. Powell and others as sureties, upon a building contractor’s bond. Prom a judgment for plaintiff on verdict directed by the court, the defendant sureties bring error.

Appeal [from Muskegon; Russell, J. Petition by Carolyn P. Waldron and others against Stanley W. Turner, Auditor General, to set aside a sale of certain lands for taxes assessed thereon for the year 1892. Prom an order vacating the decree authorizing the sale, the auditor general appeals.

Bill by James S. Louden and others against Martha Martindale and others to set aside an administratrix’s sale. From a decree for complainants, defendants appeal.

Case by August Reier, an infant, by Charles Reier, his next friend, against the Detroit Steel & Spring Works, for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by the township of Crystal Lake against Thomas J. Hill and others upon an official bond. From a judgment • for defendants, plaintiff brings error.

<p>Error to Gratiot; Daboll, J.</p> <p>Case by Parker Merrill against James E. Newton for deceit. Erom a judgment for plaintiff, defendant brings error.</p>

, presiding. Case by William D. Huffman against the Michigan Central Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.

Mandamus by George W. Balcb and another against the city of Detroit and others to compel the payment of an award for land condemned for street purposes. From an order denying the writ5 relators bring certiorari.

<p>Appeal from Bay; Maxwell, J.</p> <p>Bill by William S. McLean against Seth A. McLean and Henry M. Campbell for an accounting. From a decree dismissing the bill, complainant appeals.</p>

Case by Simon Banner and another against Robert Schlessinger and others for the, fraudulent conversion of certain merchandise. From a judgment against Robert Schlessinger alone, plaintiffs bring error.

. Assumpsit by Ellis Doty against Ladd J. Nixon and others upon a contract for the sale of cattle. From a judgment for plaintiff, defendants bring error.

Assumpsit by Charles Nash against the Rockford. Veneer Company upon a contract for the sale of timber. From a judgment for plaintiff, defendant brings error.

Mandamus by Edward W. Sparrow to compel Rollin H. Person, circuit judge of Ingham county, to dismiss the appeal of Mary H. Sparrow from an order of the probate court committing her to an insane asylum.

Assumpsit by Ered T. Moran against John P. Schmitt for extras furnished under a building contract. Erom a judgment for plaintiff, defendant brings error.

Assumpsit by William Somerville against the Wabash Railroad Company for services rendered as detective. From a judgment for plaintiff, defendant brings error.

<p>Error to Wayne; Lillibridge, J.</p> <p>Case by McCurdy C. LeBeau against the Telephone & Telegraph Construction Company for personal injuries. From a judgment for defendant, plaintiff brings error.</p>

Assumpsit by Edgar C. Bearce against August E. Fahrnow for money had and received. From a judgment for defendant, plaintiff brings error.

Case by Marilla Van. Alstine against Philip Kaniecki, a saloonist, and Patrick Culligan and Dennis J. Roach, his bondsmen, under the civil-damage act. From a judgment for defendants, plaintiff brings error.

Bill by Josiah L. Hawes against the Detroit Fire & Marine Insurance Company to set aside a sheriff’s deed on foreclosure. From a decree for complainant, defendant appeals.

Assumpsit by Samuel Krause, administrator of the estate of Benjamin S. Krause, deceased, against the Equitable Life Assurance Society of the United States, upon a life-insurance policy. From a judgment for plaintiff, defendant brings error.

<p>Error to Ottawa; Padgham, J.</p> <p>Assumpsit by Catharine Connell against Jacob B. McNett for breach of warranty. From a judgment for plaintiff, defendant brings error.</p>

Bill by Charles H. Kelsey against James Pendill and Merwin E. Asiré to recover back money paid upon a judgméht, and to restrain the collection of the balance of such judgment. From a decree for complainant, defendant Pendill appeals.

<p>Negligence—Proximate Cause — Absence of Railings from Bridge.</p> <p>Plaintiff, after safely crossing a bridge in defendant township, stopped to converse with a neighbor. His horse got the checkrein over one of the thills, began backing, and, disregarding both command and whip, backed the vehicle upon and off from the bridge. Held, that the absence of railings, conceding that it was the duty of the township to provide them, was not the proximate cause of the accident.</p>

Case by August Grunst against tbe Chicago & West Michigan Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

, presiding. Bill by Edwin A. Wales against William J. Gray, Charles P. Toll, the Citizens’ Savings Bank, and Charles Toll, to compel the application of the proceeds of a sale under a trust deed upon a note indorsed by complainant. Prom a decree dismissing the bill, complainant appeals.

Assumpsit by Gustavus Stockman against Carl H. Michell for services rendered. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Joseph; Yaple, J. Bill by Josiab Godsbalk against Alfred Akey, administrator of the estate of Ellen Godshalk, deceased, to construe the will of Jacob Godshalk, deceased. From the decree rendered, defendant appeals.

Bill by Isaac Welbon against Mary Jane Welbon and others to foreclose a mortgage. From a decree for complainant, defendants appeal. The object of this suit is- to foreclose a mortgage executed by the complainant to one Joseph M. Thompson. The material facts are these: Complainant was the husband of defendant Mary Jane, and the father of the other defendants. Mr. and Mrs. Welbon became involved in trouble, resulting in her filing a bill of divorce against him.

<p>Intoxicating Liquors — Sunday-Closing Law — Restaurant Connected with Saloon.</p> <p>A front room having on its door the signs “Lager Beer” and “Wines and Liquors,” and connected by double doors with a room having a bar where liquors are stored, though nominally an eating room, is such a part of the saloon, where liquors are served indiscriminately in it or in the rear room during week days, as to warrant a conviction for keeping it open on Sundays.</p>

<p>1. Intoxicating Liquors—Violation op Sunday-Closing Law —What Constitutes.</p> <p>In a prosecution for keeping a saloon open on Sunday, it was proper to instruct the jury to the effect that respondent had no right to let persons into his saloon on that day, and that, if he did so, he was guilty qf the offense charged, whether he sold them liquor or not.1</p> <p>2. Same—Serving Liquor in Room Adjoining Saloon.</p> <p>A saloon keeper who serves liquor upon Sunday in a room adjoining and connected with his saloon is guilty of a violation of the law against keeping saloons open on Sunday, even though he receives no pay for the liquor so furnished.</p> <p>3. Same—Instructions to Jury.</p> <p>An instruction in a prosecution for keeping a saloon open on Sunday,.that “if a saloon is kept open on one of the forbidden days, for any purpose, or for any business, or for any length of time, no matter how short, it will be a violation of the statute,” is not prejudicial to the respondent, where he admits having served liquor upon the day in question in a room alleged to constitute a part of his saloon.</p>

<p>Error to Gogebic; Haire, J.</p> <p>Case by Lennell C. Fletcher against the Chicago & Northwestern Railway Company for malicious prosecution. From a judgment for plaintiff, defendant brings error.</p>

Mandamus by tbe Detroit & Erin Plank-Road Company to compel James B. Eldredge, circuit judge of Macomb county, to dissolve an injunction restraining relator from “placing or using in the construction of its roadbed any material except plank or gravel, or stone so broken as to subserve the purposes of gravel, or any material from which the dirt, sand, and stones one and one-half inches in diameter or more have not been sifted or removed.”

Case by Michael Smaltz and others against Jonathan Boyce and another for the loss of property by fire, alleged to have been caused by defendants’ negligence. From a judgment for plaintiffs, defendant Boyce brings error.

Bill by Warren A. Wagar and another against Gideon Bowley and others to quiet title under a tax deed. From a decree dismissing the bill, complainants appeal.

. Assumpsit by Thomas R. Lyon and others against William G. Watson and others for a balance due on a bill for sawing and on a promissory note. From a judgment for plaintiffs, defendants bring error.

<p>1. Partition—Failure to Appeal.</p> <p>One who fails to appeal from a decree in partition proceedings determining the title of the parties to be-that of cotenants cannot have the question of title reviewed upon appeal from a subsequent decree, entered upon report of the commissioners, fixing the rights of the parties to the rents and profits.</p> <p>2. Same—Accounting—Rents and Propits.</p> <p>An accounting of rents and profits during the pendency of partition proceedings up to the date of the decree is proper, where the testimony furnishes a sufficient basis therefor.</p>

Mandamus by Job T. Reynolds and others to compel John H. Palmer, circuit judge of Newaygo county, to vacate an order granting leave to move for a new trial.

<p>Appeal from Montcalm; Davis, J.</p> <p>Bill by William F. Shafer against Thomas W. Thompson, Libby Thompson, and William F. Soule to foreclose a mortgage. From a decree dismissing the bill as to defendant Soule, complainant appeals.</p>

Case by Davina Gavett against the city of Jackson for personal injuries. Prom a judgment for defendant on verdict directed by the court, plaintiff brings error.

, presiding. Ejectment by Aaron Defreese against John A. Lake and wife. From a judgment for plaintiff on verdict directed by the court, defendants bring error. Reversed.

Case by Mary I. Gildersleeve against Julia Hammond and another to recover damages for the undermining of a building. From a judgment for plaintiff, defendants bring error. Plaintiff and defendants were the owners of adjoining lots in Battle Creek, situated in the business part of the city. Plaintiff had, several years ago, erected a building upon her lot, the lower part of which was occupied as a store by a tenant, and the upper portion by other tenants.

Denis Clancy presented a claim against the estate of Moreau S. Crosby, deceased, for money collected by the latter as claimant’s agent. Pending an appeal from the decision of the, commissioners ' disallowing the claim, the claimant died, and the proceeding was revived in .the name of his administrator, George S. Wilson. There was a judgment, for'claimant, and Mary E. Crosby and James M. Crosby, executors of the defendant estate, bring error.

<p>1. Action against Municipality—Jurisdiction.</p> <p>Under 2 How. Stat. § 6861, providing that all actions against corporations, “except municipal corporations,” may he brought before a justice of the peace in cases where they might be so brought against an individual, an action against a city must be brought in the circuit court.</p> <p>2. Same—Costs—Nominal Damages.</p> <p>A prevailing plaintiff in an action brought in the circuit court is entitled to costs, regardless of the amount of the judgment, if that court had exclusive jurisdiction of the cause of action. 2 How. Stat. § 8964, subd. 4.</p>

<p>Error to Chippewa; Steere, J.</p> <p>Replevin by Ered Cooper against William S. Smith. From a judgment for defendant, plaintiff brings error.</p>

Assumpsit by Martin L. Sweet, survivor of the firm of M. L. Sweet & Company, against William S. Ellis and Charles E. Knapp, for a balance due on account. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Garnishment proceedings by George Krementz and another against Robert R. Howard, as garnishee of E. G. Smith, Sons & Company. Erom a judgment for the garnishee defendant, plaintiffs bring error.

Petition by Stanley W. Turner, Auditor General, for the sale of lands delinquent for the taxes of 1893. From a decree setting aside certain taxes, reassessed with the taxes of 1893 for the taxes of 1890, upon objections filed by Theron S. Gurney, petitioner appeals.

<p>1. Slander of Title—Landlord and Tenant—Malice.</p> <p>The false statement of a lessor that his lessee has no right to sublet for saloon purposes is not actionable if made without malice, although an opportunity to sublet is thereby lost to the lessee.</p> <p>2. Same—Evidence—Question for Jury.</p> <p>Where it appears in an action upon such statement that the lease authorized the plaintiff to sublet for business purposes, and that he himself had, to the lessor’s knowledge, sold liquors while occupying under, such lease, the question of malice is for the jury.</p> <p>8. Written Contract—Parol Evidence—Terms of Lease.</p> <p>In an action between the parties to a lease for slander of title, parol evidence is inadmissible to show that contemporaneously with the execution of the lease, providing in terms that the lessee might sublet for “business purposes,” there was a verbal agreement that he should not sublet for a saloon.</p> <p>4. Trial—Court Rules—Arguments or Counsel.</p> <p>Circuit Court Rule No. 63 provides that “not less than one hour on each side shall be allowed to counsel, if desired, in summing up a causeand a trial judge is therefore in error in limiting arguments to 10 minutes on a side. *</p>

Debt by Deloren W. Boyer, administrator of the estate of Peter Boyer, deceased, against Nathaniel Sowles as principal, and Caleb Wolpert and Lucius H. Wilcox as sureties, upon an appeal bond. From a judgment for plaintiff, defendants bring error.

<p>1. Deeds—Compromise—Bills and Notes—Failure op Consideration.</p> <p>A party who, in order to remove a cloud from his title, procures a quitclaim deed from one whom he believes to have a valid claim, cannot resist an action upon a promissory note, given in part consideration for the deed, upon the ground that his grantor had in fact no title, where the purchase was not induced by any fraud or deception on the part of the grantor.</p> <p>2. Same—Evidence—Deceit.</p> <p>In an action upon a promissory note given by the grantee in a quitclaim deed in part consideration therefor, where the defense interposed is that the grantor had no title to convey, evidence that no representation was made as to the nature of the title at the time the deed was given is admissible to show that the grantor practiced no deceit.</p>

Assumpsit by the Walter A. Wood Mowing & Reaping Machine Company against Louis Vanderbilt for goods sold and delivered. A judgment for plaintiff in justice’s court was reversed on certiorari, and plaintiff brings error.

Exceptions before judgment from Ionia; Davis, J. Arthur Elmer was convicted of being a disorderly person, in that he pretended to tell fortunes. The respondent was convicted of being a disorderly person, within the meaning of section 1, chap. 51, 3 How. Stat., in that he pretended to tell fortunes. The complaint described the offense as a continuing one, and alleged it to have been committed on July 25, 1895, and for 10 days next preceding.

Bill by Mitchell N. Packard and others, executors, against Caroline B. Kingman and others, to construe the will of Richmond Kingman, deceased. From a decree for complainants, defendants appeal!

Case by Joseph La Flamme and another against the Detroit & Mackinaw Railway Company to recover the value of a horse killed on defendant’s right of way. From a judgment for plaintiffs, defendant brings error.

Trespass de bonis by Henry Runnells against the village of Pent water. From a judgment for plaintiff, defendant brings error. The plaintiff had been engaged for four years preceding April 1, 1895, during the season of navigation, in running a ferry scow across a stream which runs through the defendant village, under yearly contracts with the defendant. The village authorities had been in the habit of letting this privilege to the highest bidder.

Assumpsit by the First National Bank of Athens, Ohio, against Michael Garland and others, upon a foreign judgment. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Case by John Bouga against the township of Weare for damages sustained by reason of a defective highway. From a judgment for plaintiff, defendant brings error.

Clair; Vance, J. Summary proceedings by John Jenkinson against Bert E. Winans to recover the possession of leased \premises. The commissioner found for the claimant, and from a judgment of the circuit court, affirming the decision, defendant brings error.

Assumpsit by Caspar Gnau against the Masons’ Fraternal Accident Association of America upon an accident insurance policy. From a judgment for plaintiff, defendant brings error.

Appeals from Houghton; Hubbell, J. Separate bills by Albert L. Brown and William J. Riley against the Pontiac Mining Company and others, and against the Mesnard Mining Company and others, to wind up the affairs of said corporations. From deórees for the complainants, defendants appeal.

Assumpsit by Denson H. Armstrong against Samuel F. Andrews' for the breach of a p aving contract. From a judgment for plaintiff, defendant brings error.

Garnishment proceedings by Angelina Smith Muncey against the Sun Insurance Office, as garnishee of Henry Boutyette, in which proceeding Caspar M. Zengerle intervened under claim of title to the fund. From a judgment for plaintiff, the garnishee and the intervener bring error.

Assumpsit by Thomas Kerr against Edmund Bennett for the breach of a special contract. From a judgment for defendant, plaintiff brings error.

Assumpsit by Harry Hodges against the Detroit Electric Light & Power Company for services rendei’ed as nurse to an employé of defendant. From a judgment for plaintiff, defendant brings error.

Exceptions before judgment from Chippewa; Steere, J. Minnie Payment and John E. McDonald were convicted of adultery, and the former assigns error.

Certiorari by George H. Brown to review the proceedings of the township board of Greenfield township upon plaintiff’s appeal from a decision of the highway commissioner establishing a highway across his land.

<p>Malpractice—Instructions—Measure of Duty. .1.</p> <p>An instruction, in an action against a surgeon for malpractice, that the measure of defendant’s legal duty was to exercise such care, skill, and diligence in his treatment of the plaintiff as physicians and surgeons “in the neighborhood where he resided” ordinarily exercised in like cases, while not strictly accurate, is not prejudicial to the plaintiff, where it appears that the defendant resided in a city where there were other physicians, presumably of average ability when compared with similar localities.</p> <p>:2. Same—Quantum of Proof.</p> <p>It is error to instruct the jury in a malpractice case that the plaintiff cannot recover unless he shows, by a preponderance of the evidence, “a state of facts from which no other rational conclusion can be drawn than that the defendant was unskillful and negligentthe effect being to require the jury to acquit, if they can, upon any theory, find the facts rationally consistent with skill and diligence, notwithstanding a contrary probability.</p>

<p>Mandamus by Frank C. Schattler against Willard M. Lillibridge, circuit judge of Wayne county.</p>

Assumpsit by Martin J. Painter against Harrison T. Ledyard upon an account for boarding and lodging defendant’s nephew. Prom a judgment for plaintiff, defendant brings error.

<p>Error to Wayne; Donovan, J.</p> <p>Ejectment by Richard Chabert against John A. Russell and another. From a judgment for defendants, plaintiff brings error.</p>

<p>1. Trover—Conversion of Check—Intent.</p> <p>An attorney at law is not liable in trover for cashing a check forwarded by a client to cover disbursements, although he appropriates the proceeds to his own use, in the absence of evidence showing an intention to misappropriate at the time the money was obtained.</p> <p>2. Same—Conversion oe Proceeds.</p> <p>Trover is not maintainable as for a conversion of money unless there is an obligation on defendant’s part to return the specific money intrusted to his care.</p>

Bill by Cornelia G. Fitzhugh against the city of Bay-City and the Auditor General of the State of Michigan,, to restrain the collection of a paving assessment. From a decree for defendants, complainant appeals.

, presiding. Bill by James J. Martin and others against Charles W. Warren, Kitty M. O’Donnell, and others, to enforce a mechanic’s lien. From a decree for complainants, defendant O’Donnell appeals.

Case by Edwin C. Vreeland against the Cincinnati, Saginaw & Mackinaw Railroad Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Clair; Daboll,. J., presiding. Anson E. Chadwick was found guilty of contempt of court, and brings certiorari. The respondent, Anson E. Chadwick, was found guilty of contempt of court in the circuit court for the county of St. Clair, and has brought the proceedings to this court for review upon the writ of certiorari. Mr. Chadwick was one of the solicitors for the defendant in the case of McMorran v. Fitzgerald, 106 Mich. 649.

Mandamus by C. Sidney Shepard and others to compel William E. Grove, circuit judge of Kent county, to issue an attachment against one Joseph Berles for contempt in failing to comply with an order of a circuit court commissioner to appear and make discovery concerning his property.

Assumpsit bj- Henry H. Coe and Frederick Wilkes against Myron Hinkley upon an assignment of an account for the purchase price of corporate stock. From a judgment for plaintiffs, defendant brings error.

<p>Mandamus by Charles L. Breckon to compel Philip Padgham, circuit judge of Ottawa county, to enter an order quashing a writ of capias ad respondendum.</p>

<p>1. Estates in Land—Duty to Discharge Incumbrance—Life Tenant in Expectancy.</p> <p>As between a tenant for life in possession and the remainder-man, the duty to pay the principal of an incumbrance rests upon the remainder-man, the tenant being holden for interest only; and the obligation of the tenant is not extended where the life estate is in expectancy.</p> <p>2. Same—Interest—Apportionment.</p> <p>A life tenant in expectancy is bound to contribute to a remainder-man who pays an incumbrance upon their estates, to which the estate of the tenant in possession is not subject, an amount equal to his proportionate share, according to his expectancy, of the interest which would accrue during the expectancy of life of the tenant in possession, and the entire interest which would accrue during his expectancy of life after the commencement of his life estate in possession, less such sum as may be proper on account of immediate payment.</p> <p>S. Life Expectancy—Evidence—Mortality Tables.</p> <p>While mortality tables may afford the most satisfactory basis for estimates as to the expectancy of life, they do not in a given case constitute conclusive evidence, but must be considered in the light of, and are subject to variation by proof concerning, the age, health, and habits of the individual in question.</p>

William Macard was convicted of perjury, and sentenced to imprisonment for 15 years in the state prison at Marquette. The respondent was convicted of the crime of perjury, alleged to have been committed on the trial of his brother Charles for the murder of one Mrs. Mary McKendrick.

<p>Certiorari to Hillsdale; Lane, J.</p> <p>Charles A. Shepard was disbarred from practicing as an attorney at law, and brings certiorari.</p>

Assumpsit by William A. O. Miller against Joseph Jurczyk for lumber sold and delivered. From a judgment for plaintiff, defendant brings error.

Assumpsit by James H. Lynch against Holmes W. Johnson for goods sold and delivered. Prom a judgment for plaintiff, defendant brings error.. This suit originated in justice’s court, to recover the price of a suit of clothes sold by the plaintiff to the defendant in 1890. Plaintiff had verdict and judgment in both the justice’s and circuit courts, and defendant now brings the case to this court on writ of error.

Mandamus by Charles E. Keefer and another to compel the board of supervisors of Hillsdale county to call an election and submit to the voters the question of a continuance of local option in said county. From an order denying the writ, relators bring certiorari.

Mandamus by William Steele to compel William E. Grove, circuit judge of Kent county, to set aside an order, entered April 11, 1896, as of February 27, 1895, granting leave to the First National Bank of Traverse City to bring a suit at law upon a mortgage note during the pendency of foreclosure proceedings.

Case by tbe Talbot Paving Company against tbe city of Detroit for failure to award to tbe plaintiff a paving contract for wbicb it was tbe lowest bidder. Prom a judgment for defendant on verdict directed by tbe court, (plaintiff brings error.

, presiding. Bill by N. Maria Beebe against Thomas Birkett to compel the discharge of certain mortgages. From a decree for complainant, defendant appeals.

Assumpsit by Albert P. Backus against John Archer and another as sureties on a building contractor’s bond. From a judgment for defendants, plaintiff brings error.

<p>Error to Washtenaw; Kinne, J.</p> <p>Assumpsit by Eugene Helber against Martin Schantz. Erom a judgment for defendant on verdict directed by</p> <p>the'court, plaintiff brings error.</p>

Assumpsit by the Detroit Driving Club against William H. Fitzgerald to recover an unpaid subscription to the capital stock of the plaintiff corporation. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Mandamus by Jason E. Hammond, deputy superintendent of public instruction, to compel the school board of the city of Muskegon to collect an annual institute fee from the teachers in the city schools. From an order denying the writ, relator brings certiorari.

Joseph Soukup recovered a judgment against Adrian Van Dyke before a justice of the peace of the township of Grand Rapids, in an action on the case. Both parties were residents of the city of Grand Rapids. A body execution was issued on said judgment, and, in default of goods and chattels, the body of the defendant was taken thereon.

Where one member of a partnership transfers his interest in the firm assets to his copartner under an agreement that the amount to be paid therefor shall be determined by arbitrators, the making and delivery of an award in the manner-provided for is a condition precedent to the right to maintain an action for the purchase price; and this, even though the arbitration has failed by reason of the inability of the arbitrators to agree.

Jessie Buck was convicted, under the disorderly act, of being a common prostitute, and sentenced to imprisonment in the Detroit House of Correction for two years.

<p>■Justices of the Peace—Appeal—Right to Dismiss.</p> <p>Under 3 How. Stat. § 7014, relating to appeals from justices’ courts, and providing that, “on filing the return of the justice, the circuit court shall become possessed of the cause the same as if it had been originally commenced in said appellate court, subject to the same rules and regulations,” the appellant cannot, as against the protest of the appellee, dismiss his appeal.</p>

<p>Corporations—Chamber oe Commerce—Amendment op Articles of Association.</p> <p>A chamber of commerce incorporated under Act No. 166, Pub. Acts 1863 (1 How. Stat. chap. 108), may amend its original articles of association, increasing its so-called “capital stock ” to an amount not exceeding the limit fixed by Act No. 52, Pub. Acts 1893, in the manner prescribed by 1 How. Stat. § 4866, which is applicable to all corporations when no other provision is specially made.</p>

Petition by Stanley W. Turner, Auditor General, for the sale of certain lands delinquent for tbe taxes of 1893. Objections were filed by Frederick F. Ayer and others, trustees of the estate of James O. Ayer, deceased. From a decree for petitioner, defendants appeal.

William Weaver commenced suit in justice’s court against George H: Rix by writ of summons. Plaintiff had judgment, and defendant removed the cause by certiorari to the circuit court, where the judgment was affirmed. Defendant brings error.

Assumpsit by Charles C. J. Ranspach against the Teutonia Fire Insurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error. One Dillon obtained an insurance policy in the defendant company upon a dwelling house situated upon his land.