Volume 110 — Michigan Reports

Assumpsit by Thomas W. Laidlaw and another against the city of Detroit to recover a sum of money alleged to have been paid under duress. From a judgment for defendant on verdict directed by the court, plaintiffs bring error. Plaintiffs made a contract with the defendant, June 7, 1892, by which they agreed to do certain paving. The work was to be completed September 30th. It was not „ completed until November 14th.

<p>Equity Pleading — Prayer for Relief — Subrogation.</p> <p>Under a bill alleging that complainant loaned money to defendant with which to pay a mortgage, in reliance upon defendant’s promise to execute a new mortgage to complainant for the amount advanced, asking, as specific relief, that defendant be required to execute such mortgage, but containing-a prayer for general relief, a decree subrogating complainant, to the amount of his claim, to the rights of the holder of the mortgage prior to its discharge, is warranted.</p>

Assimpsit by Ervin E. Barrett against the Grand Rapids Veneer Works for the breach of a contract to stock plaintiff’s mill. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Clair; Vance, J. • John Edward Jenkinson appealed from an order of the probate court denying his petition for the appointment of an administrator of the estate of George Brooks, deceased. From an order dismissing the appeal, petitioner brings certiorari.

Case by John Curnow against Frank W. Kessler, a justice of the peace, for false imprisonment and malicious prosecution. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Certiorari to Bay; Maxwell, J.</p> <p>Attachment. From an order dissolving the writ, plaintiff brings certiorari.</p>

, J. Assumpsit by Mary D. Reed against Oscar C. Ismond for the value of a lot alleged to have been fraudulently omitted from a deed. From a judgment for plaintiff, defendant brings error. • On April 4, 1895, the plaintiff, being the owner of a stock of goods situated in Eagle, Clinton county, and the defendant, being the owner of certain lots of land in the city of Battle Creek, entered into a written contract, the material part of which reads as follows: ‘!

Assumpsit by Edward Rawlings against Olive B. Fisher upon a promissory note. From a judgment for plaintiff ón verdict directed. by the court, defendant brings error.

<p>1. Execution — Abandonment op Levy — Second "Writ.</p> <p>A levy under execution which is within 2 How. Stat. § 7685, forbidding the sale on execution of a growing crop until it ripens, at®’extending the life of the execution until such time, is not abandoned by the mere delivery of the writ, indorsed with the levy by the officer, to the justice who issued it, and the issuance of a second execution; especially where the acts attending the issuance of the second writ show an intention to retain the benefits of the original levy.</p> <p>2. Same — Growing Crops — Notice op Levy.</p> <p>The further provision of said section that the officer making such levy shall file a notice thereof in the.office of the clerk of the township where such crops are at the time of the levy, and that such notice shall be constructive evidence of the interest of the plaintiff in the execution, is for the benefit of third persons, and a failure to file such notice does not, as between the parties, operate to limit the life of the execution to the return day thereof.</p> <p>3. Same — Validity op Second Writ.</p> <p>A second execution cannot issue where there is an existing levy undischarged.</p> <p>4. Same — Authority op Justice op the Peace.</p> <p>Under 2 How. Stat. § 6975, a justice of the peace has no authority to issue a second execution until the first writ has been returned unsatisfied, in whole or in part.</p>

Bill by Francis E. Densmore against Fanny J. and Eugene R. Savage and Milton F., Clark C., and Harry Gr. White, to revive and foreclose a mortgage. From a decree dismissing the bill on demurrer, complainant appeals.

Wexford; Aldricb, J. Assumpsit by the Drovers’ National Bank against George W. Blue on a promissory note. A justice’s judgment was reversed on certiorari in the circuit court, and plaintiff brings error.

Assumpsit by Fred Woempener against Edward F. Fetchnm.' A justice’s judgment was affirmed on certiorari in the circuit court, and defendant brings error.

Bill by Rachel Stone against John Campbell and Florence Campbell to declare a trust in certain real estate. From a decree dismissing the bill, complainant appeals.

<p>Appeal from Van Burén; Buck, J.</p> <p>Bill by Cynthia A. Van Deusen against Frank E. Ingraham and others to foreclose a mortgage. From a decree dismissing the bill, complainant appeals.</p>

Garnishment 'proceedings by Albert Blumenthal and others against Benjamin F. Simons, as principal defendant, and David Burnham, a judgment debtor of Simons, as garnishee defendant. Arthur O. Bement, assignee of the judgment against Burnham, Quincy A. Smith, Richard A. Montgomery, and Jay P. Lee claimed the proceeds of the judgment, which had been paid into court. From a judgment for claimants, plaintiffs bring error.

<p>1. Criminal . Law — Continuing Offenses — Keeping House of III Fame — Information.</p> <p>In an information for keeping a house of ill fame, the offense may be charged as having been committed on a day certain, and on divers other days and times between that day and a previous day specified, it being a continuing offense.</p> <p>3. Same — Variance Between Complaint and Information.</p> <p>The information in such case is not invalidated by the fact that the complaint before the justice charged the offense as having been committed upon the particular day only.</p> <p>3. House of III Fame — Evidence—Reputation of Inmates.</p> <p>In a prosecution for keeping a house of ill fame, evidence that one of the inmates of the house had borne the reputation of being a common prostitute is admissible.1</p> <p>4. Same — Remoteness.</p> <p>Such evidence is not so remote as to be incompetent although it relates to reputation three years before, particularly where it covers a period down to the time the offense is charged to have been committed.</p> <p>5. Same — Reputation of Frequenters.</p> <p>It is not necessary to prove, on a prosecution for keeping a house of ill fame, the bad reputation of men who resorted to the house, where their acts were of such a character as to warrant the inference that they went there for immoral purposes, and the inmates are shown to have been women of evil reputation.</p> <p>6. Same — Instructions—Essentials of Offense.</p> <p>An instruction, in a prosecution for keeping a house of ill fame, that if the inmates of the house were prostitutes, and if males were seen frequenting the house at night, the jury might convict, is not ground for reversing a conviction, where the court also instructed that the males must have resorted to the house for the purpose of prostitution or lewdness, and that it was the usé of the house, and not merely the reputation of its inmates, that the statute was intended to reach</p>

Assumpsit by Caroline Kirt against Mary Kropp for services rendered and money loaned. From a judgment for plaintiff, defendant brings error. The defendant was a married woman, living with her husband upon a farm owned by him at the time of the plaintiff’s employment. Plaintiff sued to recover for services as a domestic in the family from 1881 to 1889 and for money loaned to the defendant. She recovered verdict and judgment.

Bill by Cynthia M. Peek against Jennie Roe and Charles Roe, Jr., to abate a nuisance. Prom a decree for complainant, defendants appeal. Complainant and defendants are the owners of adjoining lots. Complainant’s house is situated about a foot from the division line. The defendants maintain a board fence 10 feet 9 inches high, which shuts out the light from the rooms of the complainant, and prevents a circulation of air, thereby rendering her house damp and unhealthy.

Garnishment proceedings by Walter G. Hogan against Joseph L. Hudson, as garnishee of Joseph L. Gearing. From a judgment for the garnishee defendant on verdict directed by the court, plaintiff brings error. The principal defendant, Gearing, was a building contractor, carrying on business in the city of Detroit. He owned some buildings situated upon leased ground, which he occupied as a plant for carrying on his business, and in which he had the usual machinery and tools.

Mandamus by Joseph W. Dusenbury against Oscar R. Looker, president, and James H. Cummins, secretary, of the Michigan Mutual Life Insurance Company, to enforce the stockholders’ minority law. From an order denying the writ, relator brings certiorari. The Michigan Mutual Life Insurance Company is a corporation organized in this State July 8, 1870, under the life insurance act of 1869.

Exceptions before judgment from Oakland; Carpenter, J. , presiding. Eugene Ostrander was convicted of perjury. The respondent was convicted of perjury, alleged to have been committed upon the trial of one Campbell for burglary committed in the city of Pontiac.

, presiding. Assumpsit by Seymour Foster against Louis E. Rowley for goods sold and delivered. From a judgment for plaintiff, defendant brings error.

<p>Costs — Appeals prom Probate Court.</p> <p>The discretion of the circuit judge, in causes contested in the circuit court upon appeal from the probate court, to allow to either or both parties their costs to be paid out of the estate in controversy, is limited to the awarding of taxable costs, and an award to an executor of his actual exx>enses incurred upon the trial is unauthorized.</p>

, presiding. Assumpsit by David L. Dodder against Franklin J. Snyder for the breach of a special contract. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff sold and conveyed to the defendant by a warranty deed the E. \ of the E. £ of the N. E. J, section 10, township 7 N., range 1 E., for an expressed consideration of $2,000.

<p>Error to Hillsdale; Lane, J.</p> <p>Case by Andrew J. Gavigan against the Lake Shore & Michigan Southern Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Case by John Mitchell against Charles Prange and others for personal injuries. From a judgment for plaintiff, defendants bring error.

, presiding. Mandamus by Mason S. Salford to compel the board of health of the city of Detroit to award compensation for damages arising from the quarantining of relator’s place of business. From an order granting the writ, respondent brings certiorari.

<p>1. Wills — Intention op Testator, — Testamentary Trusts.</p> <p>Where a will clearly shows that it was the testator’s intention to bequeath the net income of a trust estate, the trust will not be held invalid upon the ground that the amount of the income cannot be definitely ascertained.</p> <p>2. Same — Uncertainty.</p> <p>A bequest of a fund to trustees “to invest, and from time to time reinvest, in such income-producing investments as they shall deem for the best interests of the trust,” is not void for uncertainty in that it fails to designate the securities in which investments shall be made.</p> <p>3. Same — Liability op Trustees.</p> <p>When an instrument which creates a trust fails to designate the securities in which the trust funds shall be invested, the trustees take subject to the recognized rules of law as to the investment of trust funds, and will be held personally responsible for failure to exercise good faith and sound discretion.</p> <p>4. Same — Province op Court.</p> <p>Where there is nothing to show that trustees are likely to abuse their trust by arbitrary or capricious exercise of author - . ity, the court will not, at the request of the beneficiary, adjudge how they shall act in regard to matters expressly confided to their discretion.</p>

Proceedings under tbe log-lien law by Prank McGuire against David M. McOallum, the Gratwick, Smith & Fryer Lumber Company, Penoyar Bros., and William H. Simpson. From a judgment for defendants on verdict directed by the court, plaintiff brings - error.

Mandamus by Charles W. Gardner to compel the board of supervisors of Newaygo county to audit and allow a claim for extra services as county clerk. From an order denying the writ, relator brings certiorari.

<p>Exceptions before judgment from Kent; Adsit, J.</p> <p>Arthur B. Kinney was convicted of fraudulently obtaining a signature to a promissory note.</p>

<p>1. Riparian Rights — Great Lakes.</p> <p>The fee of the soil lying beneath the waters of the Great Lakes is in the State, and the right of the riparian owner is limited to the enjoyment of such easements as were at common law incident to the ownership of land bordering upon navigable streams.1</p> <p>2. Same — Constitutional Law.</p> <p>Therefore, Act No. 112, Pub. Acts 1895, setting aside certain submerged lands in Lake Erie for public shooting grounds, and making it unlawful to destroy the rushes and other submarine vegetation on such lands, is not unconstitutional in that it deprives the riparian owner of property rights without due notice and compensation.</p>

Bill by Jeptha D. Dunlap and others to enjoin William J. Byers and others from prosecuting certain suits in ejectment. From a decree for complainants, defendants appeal.

Proceedings by Frank J. Sarmiento and Charles C. Bowen, copartners as F. J. Sarmiento & Company, to enforce a lien under the water-craft law against the steamer Catherine C. The Davis Boat'& Oar Company, as principal, and George S. Davis, as surety, gave the statutory bond for the release of the vessel. From the judgment rendered, all parties appeal.

<p>Appeal from St. Clair; Vance, J.</p> <p>Bill by Dewitt C. Walker against Thomas H. Bottomley to quiet title. From a decree for defendant, complainant appeals.</p>

<p>. Error to Lenawee; Lane, J.</p> <p>Trover by William H. Curtiss against George Witt.Erom a judgment for defendant, plaintiff brings error.</p>

Replevin by John M. Hoffman against William H. Simpson and others. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Case by Eugene Provost against Joseph Brueck for slander. From a judgment for plaintiff, defendant brings error. Plaintiff, in an action of slander, recovered against the defendant a verdict and judgment for $800. The defendant was a Catholic priest at East Tawas, and the plaintiff was a member of his church. The language was uttered in the pulpit, in the presence of the plaintiff and the congregation.

),J., presiding. Bill by Henry A. Delavan, administrator of the estate of Nicholas Demoray, deceased, against Charles E. Wright and Amanda Wright, to set aside a deed as in fraud of decedent’s creditors. From a decree for complainant, defendants appeal.

<p>Appeal from Muskegon; Russell, J.</p> <p>Judgment creditor’s bill by William Franks against David Burns, Julia A. Burns, and the Lakeside Iron Company. From a decree from complainant, defendant Julia A. Burns appeals.</p>

Bill by Cleantbe M. Beaufait against Ann Dolson, Nellie E. Whitehead, and others, to quiet title. From a decree dismissing the bill, complainant appeals.

, Assumpsit by John M. Dillon against Benjamin W. Pinch for money had and received. Erom a judgment for plaintiff, defendant brings error. Plaintiff was the owner of an insurance policy in the Old People’s Mutual Benefit Society Of Elkhart, Ind., upon the life of one Abigail Smith. A Mrs. Alvira Smith had another policy upon the same life. The validity of that policy, and the principle governing such insurance, may be found determined in Smith v. Pinch, 80 Mich. 332.

Assumpsit by Edward Stange against Anthony Ggsse for commissions on the sale of real estate, and for money advanced on the purchase price. Prom a judgment in his favor for less than the amount claimed, plaintiff brings error. On March 4, 1893, the defendant and his wife executed and delivered to Charles Cohn an option for the sale of a farm of 80 acres, for the sum of $24,000, the option to expire May 11, 1893.

Assumpsit by the county of Cheboygan against William Erratt and others on a county treasurer’s bond. From a judgment for plaintiff, defendants bring error.

Bill by the John T. Noye Manufacturing Company against the Thread Elouring-Mills Company and others to enforce a mechanic’s lien. • From a decree dismissing the bill, complainant appeals.

Attachment proceedings by Joseph S. Bargh against L. R. Ermeling & Company, a foreign corporation. Plaintiff had judgment in justice’s court, and a special appeal was taken to the circuit, where the justice’s judgment was set aside. Plaintiff brings error.

<p>1. Appeal — Instructions—Failure to Except-ad. alleged error in a statement of fact made by the trial court in his instructions to the jury will not be considered on appeal, where the attention of the court was not called thereto upon the trial.</p> <p>3. Same — Questions not'Raised Below.</p> <p>Questions which were not raised in the lower court will not be considered on appeal.</p>

Exceptions before judgment from Berrien; Coolidge, J. Clyde M. Brown was convicted of uttering forged paper. The respondent was convicted of uttering a forged check, and in the complaint made before the justice of the peace the check was described as follows': “No. 16.

Trespass quare clausum fregit by Daniel A. Matthews against the Lake Shore & Michigan Southern Railway Company. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

<p>New Trial — Inadequacy oe Yerdiot — Discretionary Powers.</p> <p>The trial court has discretionary power in a personal injury case to set aside the verdict rendered, and order a new trial, of its own motion, if it deems the award insufficient.</p>

Assumpsit by Ernst Ackenhausen against the People’s Savings Bank to recover the amount-of a savings deposit. Erom a judgment for defendant, plaintiff brings error.

<p>Error to Houghton; Hubbell, J.</p> <p>Assumpsit by Vital Bleau against Edward L. Wright and another to recover the amount of a premium advanced on a proposed policy of life insurance. From a judgment for defendants on verdict directed by the court, plaintiff brings error.</p>

Assumpsit by Otto L. Luttermoser, executor of the last will and testament of Johanna Rebecca Zeuner, deceased, against Carl Frederick- Zeuner; surviving husband of decedent, to recover the latter’s share of the proceeds of a mortgage executed to defendant and decedent jointly. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Bill by Nathaniel Sowles to enjoin John C. Raymer and Margaret A. Raymer from removing certain mill property. From a decree for complainant, defendants appeal.

Case by Lorenzo D. Coombs against George W. Rad-ford, James W. Fales, and Alexander McVittie for alleged false representations on the sale of corporate stock. From a judgment for plaintiff, defendants bring error.

<p>1. Statute op Frauds — Contract op Sale — Evidence.</p> <p>Testimony of the proposed purchaser under a written contract for the sale of personal property which omitted to name the purchase price, that the seller estimated the property to be worth from §60 to §150, but that witness had never seen it, is insufficient to bring the contract within the statute of frauds as being for the sale of chattels of the value of §50 or more.</p> <p>2. Contract — Payment—Suppiciency op Tender.</p> <p>A tender of notes under a contract for the sale of personal property providing for the payment of the purchase price in notes, but silent as to place of payment, will not be held insufficient because the notes were made payable at a specified place, where the seller, upon being told to examine them and see if they were correct, made no objection to their form, but stated that he had changed his mind in regard to the sale.</p>

Rachel L. Doty appealed from an order of the probate court disallowing her claim for services as executrix of the last will and testament of Adeline King, deceased. From a judgment for the estate (represented by George W. Bates) on verdict directed by the court, claimant brings error.

Condemnation proceedings by the Ann Arbor Railroad Company against Hiram G-. Beach and others. From an order confirming the award, respondents bring certiorari.

Case by Mary W. Mulliken against the city of Corunna for injuries sustained by reason of a defective sidewalk. From a judgment for plaintiff, defendant brings error.

<p>Mortgages — Tax Title — Adverse Possession.</p> <p>A mortgagee of land who takes possession thereof under verbal authority from the mortgagor is entitled, as against a stranger, to set up adverse possession under a tax title under which the mortgagor claimed.</p>

Bill by Talcott Tiffany • against George L. Tiffany and Polly A. Tiffany to set aside certain conveyances alleged to have been fraudulently procured.' Prom a decree for complainant, defendants appeal.

Petition by Stanley W. Turner, Auditor General, for tbe sale of certain lands delinquent for the taxes of 1893. From a decree for petitioner, John M. Longyear and others appeal.

, presiding. Bill by the Citizens’ Savings Bank against Emmie M. Darling and Edgar S. ■ Darling to foreclose a mortgage From a decree dismissing the bill, complainant appeals.

Bill by George Mullreed, executor, etc.,' and another, against Thomas P. Clark and others, to construe the will of Thomas Phillips, deceased. Prom a decree for com' plainants, defendant Clark appeals.

Sharpe, J. Replevin by Mollie E. Vaughn and another against Hugh McFadyen for a steam boiler and fixtures. From a judgment for plaintiffs, defendant brings error.

Bill by William S. Moore and Charles Poler against George McIntyre, county drain commissioner, and George Dell, township treasurer, to set aside the proceedings for the establishment of a county drain. Prom a decree dismissing the bill, complainants appeal.

Assumpsit by David J. Ranson against Abijah Weston for commissions on the sale of real estate. From a judgment for plaintiff, defendant brings error. In 1893 the defendant owned several tracts of pine land in Luce county, in townships 46 and 47, range 11 west, and in 46 and 47, range 12 west, comprising in all about 20,000 acres.

<p>Exceptions before judgment from Mecosta; Palmer, J.</p> <p>Louis German was convicted of perjury.</p>

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

<p>1. Adultery — Foreign Marriage — Evidence.</p> <p>In a prosecution for adultery, the testimony of the clergyman and others who participated in a marriage ceremony in a foreign country between conuplainant and respondent, although insufficient, in the absence of proof as to the laws of such country, to prove a valid marriage, is admissible to show that a ceremony was in fact performed, which, if followed by cohabitation, would establish the marital relation.</p> <p>2. Same — Admissions—Cohabitation.</p> <p>Evidence that respondent admitted having cohabited with the complainant for some time after the ceremony is admissible on such trial.</p> <p>3 Same — Letters.</p> <p>Letters written by a respondent charged with adultery to the complainant, in-which she is addressed as his wife, are admissible to prove their marriage.</p> <p>■ 4. Same — Husband and Wipe — Competency as Witnesses.</p> <p>A wife who is the complainant in the prosecution of her husband for adultery cannot testify to their marriage and cohabitation.</p> <p>5. Criminal Law — Marriage—Evidence.</p> <p>A foreign certificate of marriage is inadmissible in a criminal case.</p> <p>6. Adultery — Evidence—Admissions op Paramour.</p> <p>Evidence that the person with whom respondent is charged to have committed adultery stated in respondent’s absence that respondent had had sexual intercourse with her is inadmissible as hearsay.</p>

Thomas J. Lilly presented for probate the will of- David Lilly, deceased. From an order probating the will, Florence L. Townsend appealed to the circuit, where the will .was again sustained. Contestant brings error.

Case by Jacob Station against Thomas R. Lyon and others for failure to require the statutory bond of a contractor for the construction of a school-house. From a judgment in his favor for less than the amount claimed, plaintiff brings error. The facts in this case are stated in 104 Mich. 249, and need not be here repeated.

, presiding. Judgment creditor’s bill by Inez B. Grenell .against Dexter M. Ferry and others. From an order overruling demurrers to the original and supplemental bills, defendants appeal. The complainant recovered a judgment against the Michigan Gas Company, June 28, 1895, for $2,092.25.

Case by Mary McKormick against the city of West Bay City for personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant brings error.

<p>Boundaries — Estoppel—Fraud.</p> <p>A., the owner of a parcel of land supposed to contain 40 acres, conveyed to B. and G. each 12£ acres of the north 25 acres, and to D. the south 15 acres of such parcel. It subsequently developed that the parcel did not contain full 40 acres. A boundary dispute arose between C. and D./and in a suit in ejectment brought by the latter, wherein defendant claimed that plaintiff had agreed to a line as established by a certain surveyor engaged by defendant, it appeared that the surveyor, without the knowledge of plaintiff, had divided the land by giving to B. and C. the full amount described in their deeds, reducing plaintiff’s parcel to the extent of the shortage. The evidence tended to show that B. and G. were parties to such arrangement. Held, that there was at least a question of fraud for the jury. ,</p>

Trespass by John. M. Longyear and others against Frank Gregory and Frederick J. Schliemann, copartners doing business under the firm name of the Amberg Cedar Company, to recover treble damages for cutting and removing timber from plaintiffs’ land. From a judgment for plaintiffs, defendants bring error.

Bill by Oscar M. Ziegan and wife against Christian F. Strieker to compel the discharge of a mortgage. From a decree for complainants, defendant appeals.

<p>1. Landlord and Tenant — Eviction—What Constitutes.</p> <p>A tenant is evicted from a room in. a'building, so as to constitute a breach of a bond securing the right to its occupancy, where the only mode of access to the room is denied to him • by the procurement of the obligor, in consequence of which the occupation is abandoned</p> <p>2. Same — Damages.</p> <p>The measure of damages for the eviction of a life tenant from the premises demised consists of the rental value of the premises from the date of eviction up to the commencement of the action, and the present worth of the rental value from that time forward during the tenant’s life expectancy.</p> <p>3. - Appeal — Instructions to Jury — Damages.</p> <p>An objection that the charge of the court was not sufficiently specific as to the method of computing damages will be disregarded on appeal, where no requests for instruction upon that subject were presented to the trial judge.</p>

Bill by Adelaide Corby against Fillis Trombley and others to set aside the probate of a 'will. From a decree dismissing the bill, complainant appeals.

Mandamus by Barney Rabidon to compel Fred J. Russell, circuit judge of Muskegon county, to vacate an order requiring the filing of security for costs.

Case by Ethel Myers, an infant, by her next friend, against Henry H. Hinds, to recover damages for injuries sustained by a collision with a bicycle. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff, a girl 14 years of age, was returning from a picnic in the country.

, presiding. Bill by Mary L. Glick against Albert and Jacob Glick to foreclose a lien for alimony. From a decree for complainant, defendant Jacob Glick appeals.

Bill by Spencer L. Houghton against the State Mutual Life Assurance Company and Alonzo E. Bradley for a partnership accounting; The defendant company appeals from an order overruling its demurrer to the bill.

Bill by William W. Cartwright and another against Cyrus Johnston and the Farmers’ Fire Insurance Company of York, Pa., for an accounting and an injunction. The defendant company filed a cross-bill, which was dismissed on demurrers interposed by the complainants and by defendant Johnston, and the company appeals. After the affirmance of Johnston v. Farmers' Fire Ins. Co., 106 Mich. 96, there was a delay in collecting the judgment.

Bill by Washington Y. Chase, administrator of the estate of Charles Darby, deceased, against Phoebe A. Darby, to foreclose a mortgage. Defendant filed an answer in the nature of a cross-bill, praying that the mortgage be canceled and discharged. From a decree for defendant, complainant appeals.

Assumpsit by Alexander McIntosh against Fred Hodges to recover rent alleged to be due under a lease. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

■ Exceptions before judgment from tbe recorder’s court of Detroit; Cbapin, J. Thomas W. O’Neil and Jacob H. Hoffner were convicted of violating the game laws.

The claim of Helen A. Lathrop against the estate of Anna Miller, deceased, was disallowed in probate court, and claimant appealed. From a judgment for claimant, Malcolm C. Sinclair and another, executors, bring error.

, J. Assumpsit by Jonathan Penfold against Charles B. Slyfield and others upon an appeal bond.' From a judgment for plaintiff, defendants bring error.

Ejectment by Sarah E. La Fountain against Michael J. Dee and others. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

<p>1. Personal Injuries — Aggravation of Existing Infirmities —Instructions.</p> <p>In an action for personal injuries, the refusal of an instruction that the plaintiff cannot recover for any aggravation of pre-existing injuries produced by the alleged accident is ' not error, where the issue is simply whether or not the injuries declared upon were caused by the accident, and neither party has presented any theory based upon an aggravation of existing infirmities. Thurstin v. Luce, 61 Mich. 292, and Wilkinson v. Spring Works, 73 Mich. 408, distinguished.</p> <p>2. Trial — Remarks of Counsel.</p> <p>The fact that plaintiff’s counsel, in his closing argument, im- ■ properly criticised the witnesses for the defendant, does not require a reversal, where the court stated in his charge that the defense made was legitimate, and that there was no occasion for the criticism.</p>

Mandamus by Clarence M. Burton to compel Henry M. Reynolds, county clerk, to permit an inspection of the files of the Wayne circuit court. From an order denying the writ, relator brings certiorari.

Ceytiorari by William Baudistel and others to review the action of the recorder and common council of the city of Jackson in vacating a portion of a street. The purpose of this proceeding is to review the action of the common council of the city of Jackson in discontinuing and vacating a part of one street and laying out and establishing another.

Assumpsit by George W. Jones against School District No. 3 of Iosco, for goods sold and delivered. From a judgment for defendant, plaintiff brings error.

Mandamus by Charles F. Sterling to compel the Regents of the University of Michigan to comply with Act No. 257, Pub. Acts 1895, providing for the removal of the homeopathic medical college from Ann Arbor to Detroit. In 1895 the legislature passed Act No. 257, Pub.

Bill by the Detroit Citizens’ Street-Railway Company to restrain the city of Detroit and the Detroit Railway from carrying out the provisions of an ordinance for the construction and operation of a street-railway line. From a decree dismissing the bill, complainant appeals.

Case by Mary E. Moody against the township of Shelby for personal injuries. From a judgment for plaintiff, defendant brings error.

Assumpsit by Frederick C. Zimmermann against the Dwelling-House Insurance Company upon a fire policy. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by Willis J. Perkins against Joseph W. Oliver for work done and material furnished. From a judgment for defendant, plaintiff brings error.

Case by Charles Richfield, administrator of the estate of Emma J. Richfield, deceased, against the Michigan Central Railroad Company, to recover damages for the death of his intestate, alleged to have been caused by defendant’s negligence. From a judgment for plaintiff, defendant brings error.

<p>1. Bastardy — Evidence.</p> <p>In.a prosecution for bastardy, evidence of acts of intercourse other than that charged in the complaint is admissible as bearing upon the probability of the particular act having occurred as charged</p> <p>2. Same — Instructions.</p> <p>But an instruction to the jury in such case, so framed as to justify the inference that the respondent may be convicted upon proof of some other act of intercourse than that charged, is erroneous.</p>

<p>Appeal from Kent; Adsit, J.</p> <p>Bill by Jacob'Mastenbrook against Frank C. Alger to ■enjoin the diversion of a watercourse. From a decree for complainant, defendant appeals.</p>

Assumpsit by John B. Williams against Eli B. Rogers upon claims growing out of an agreement for working defendant’s farm on shares. From a judgment for plaintiff, defendant brings error.

<p>Appeal from Kent; Grove, J.</p> <p>Bill by Abram R. Van Norman against tlie Grand Rapids Piano Case Company for an accounting. From a decree for complainant, defendant appeals.</p>

Case by Ered B. Harper against the city of Detroit for injuries to property caused by the erection of a viaduct. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by Herbert J. Dawson and another against Henry M. Peterson for professional services. Prom a judgment for plaintiffs, defendant brings error.

Habeas corpus by Frank B. Smith to obtain his discharge from imprisonment in the state prison at Jackson upon a conviction for perjury. The petitioner was convicted of perjury, and is now undergoing sentence in the state prison. He applies for release upon the writ of habeas corpus. In 1891 a suit in chancery was commenced in the circuit court for the county of Van Burén by one William Harrison against the petitioner, Frank B. Smith, and others, as defendants.

, presiding. Assumpsit by David W. Wheeler against the Supreme Sitting-of the Order of the Iron Hall upon relief-fund certificates. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Case by Esther J. Tobias, administratrix of the estate of James Tobias, deceased, against the Michigan Central Railroad Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant, plaintiff brings error.

Clair; Vance, J. Case by Owel Bowen against the Flint & Pere Marquette Railway Company to recover for the loss of horses killed on defendant’s track. From a judgment for plaintiff, defendant brings error. The defendant’s right of way crosses the plaintiff’s farm and a highway adjoining. In one field, adjoining the right of way, he pastured some colts. Two of them were killed in the highway upon the crossing.

Assumpsit by the First National Bank of Monroe against the Wills Creek Coal Company upon a draft discounted before acceptance. From a judgment for plaintiff, defendant brings error.

<p>1. Debtor and Creditor — Fraudulent Sale — Consideration.</p> <p>Knowledge, either actual or constructive, by a creditor, of an intention on the part of his debtor to defeat other creditors by a transfer to him, is sufficient to avoid the transaction, where part of the consideration is cash paid to the debtor, although the other portion is the discharge of the transferee’s claim.</p> <p>2.. Same — Evidence.</p> <p>It is competent, upon the question whether all of the goods transferred by a debtor to another were entered upon the former’s books, to show a removal of goods during the noon hour, in the absence of the bookkeeper, in connection with his evidence that he does not remember of any instance when goods that had been ordered in the forenoon were not sent until after he came back from dinner, nor of any instance of finding a memorandum of goods to be entered up when he came back from dinner.</p> <p>8. Garnishment — Mistake of Fact.</p> <p>An item of indebtedness arising out of an admitted mistake in bookkeeping, which constitutes a present legal demand in favor of the creditor, may be reached by garnishment.</p>

Mandamus by George L. Beecher and another, administrators of the estate of Luther Beecher, deceased, against the common council of the city of Detroit, to compel the reduction of an assessment against the estate. From an order denying the writ, relators bring certiorari.

Assumpsit by Clement, Bane & Company, a corporation, against the Michigan Clothing Company, for the purchase price of a judgment assigned to the defendant. From a judgment for defendant, plaintiff brings error.

Bill by William F. Dummer against Charles O. Smedley, receiver of the Gypsum Plaster & Stucco Company, and others, to foreclose a mortgage. From the decree entered, complainant, defendant Smedley, as receiver, and defendants Nancy M. Hinsdill and William L. Tyler, appeal.

Assumpsit by Melissa P. Dodge and others, executors of the will of William E. Dodge, deceased, against Robert W. Tullock, upon a promissory note. From a judgment for defendant, plaintiffs bring error.

Case by Ellen E. Storrs, administratrix of the estate of Carlton L. Storrs, deceased, against the city of Grand Rapids, to recover damages for the death of her intestate, alleged to have been caused by a fall upon a defective sidewalk. From a judgment for plaintiff, defendant brings error.

Assumpsit by Olaf Johnson against the Farmers’ Mutual Fire Insurance Company of Kent County on a policy of insurance. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

<p>1. Intoxicating Liquors —Keeping Saloon Open on Sunday— Sufficiency of Information.</p> <p>An information for keeping a saloon open on Sunday, in violation of 3 How. Stat. § 2283e, providing that “all saloons, restaurants, bars, in taverns or elsewhere, and all other places, except drug stores, where any of the liquors mentioned” in the act are sold, shall be closed on that day, is not required to state that the saloon was not a drug store.</p> <p>2. Same — Defenses—Overruling Necessity.</p> <p>- A saloonkeeper charged with opening his saloon on Sunday cannot justify on the ground of overruling necessity, in that his father was taken suddenly ill in the vicinity of the saloon, and had to be immediately cared for, where it -appears that there were drug stores equally convenient of access, and that a number of customers were admitted to the saloon while so open.</p>

<p>1. Street Railways — In jury to Passenger — Negligence — Evidence.</p> <p>Evidence that a passenger upon an electric car was thrown from the platform, where he was standing preparatory to alighting at the cross-walk a few feet ahead, by a sudden jerk of the car, for which the company is not shown to have been in any way responsible, is insufficient to warrant a recovery against the company for the injuries sustained.</p> <p>2. Same.</p> <p>Nor would the company be responsible in such case even if it were established that the accident was caused by a sudden acceleration of the speed of the car, due to the application of power, or the removal of the brake, to enable the car to reach the usual stopping place.</p>

, presiding. Assumpsit by the Detroit Chamber of Commerce against Ulenna H. Goodman for money subscribed to secure the location of the Chamber of Commerce Building near defendant’s property. From a judgment for plaintiff, defendant brings error.

Bill by Theresia Thompson Shears and another against Charles M. Westover and others to reform a deed. From a decree for complainants, defendants appeal.

Bill by Mary Carmody against Edgar A. Crane and another to suspend foreclosure proceedings and for other relief. Defendant Crane appeals from an order overruling his demurrer to the bill.

Case by Lora A. Burleson against tbe village of Reading for personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant brings error.

<p>Life Insurance — Conditions of Policy — Waiver.</p> <p>The provision of a policy of life insurance, that no obligation is assumed unless at the date thereof the assured is in sound health, is waived by the collection of premiums thereon after an inspector of the company, authorized to “lift” the policies of people who were not in sound health when their policies issued, and pay them back their money, learned of the sickness of the assured at the time the policy was issued, notwithstanding a further provision that waivers must be in writing, signed by the president or secretary of the company. Hooker and Grant, JJ., dissenting.</p>

Assumpsit by William D. Kelly, assignee of Joseph D. Boland, against the Public Schools of the City of Muskegon, upon a contract for the erection of a high-school building. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Trespass by Humphrey Shaw against Charles N. Ash-ford, commenced by capias ad respondendum. From an order dismissing the writ, plaintiff brings error.

<p>Error to Wayne; Frazer, J.</p> <p>Ejectment by George L. Beecher against Alfred Ferris and Osman B. Canney. From a judgment for defendants, plaintiff brings error.</p>

Jacob Norman was convicted of peddling without a license, contrary to the provisions of a city ordinance, and sentenced to pay a fine of $2 and costs of prosecution, and, in default, to be confined in the county jail until such fine and costs should be paid, not exceeding 10 days.

Bill by the Knapp Electrical Works against the Mecosta Electric Company, William E. Donley, and others, to enforce a mechanic’s lien. Prom a decree dismissing the bill, complainant appeals.

Assumpsit by Mary E. Fuller, trasteé, against Edward E. Kane, on a promissory note. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Ejectment by Clara Lumley against Henry H. Haggerty and others. From a judgment for defendants on verdict, directed by the court, plaintiff brings error.

Ejectment by Nellie M. Whiteley against James Whiteley and others. From a judgment for plaintiff on verdict directed by the court, defendants James, Walter, and Harry Whiteley bring error.

Case by Charlotte D. Mathews against Samuel Garman and Christen Sinkback, saloonists, and the sureties on their bond, under the civil-damage act. Erom a judgment for the sureties on verdict directed by the court, plaintiff brings error.

<p>1. Mortgages — Principal and Agent — Authority to Collect.</p> <p>The discharge of a mortgage is not effected by the execution of a renewal mortgage to one authorized to collect the former, and the transfer of the new mortgage by him to a third person in satisfaction of a pre-existing indebtedness.</p> <p>2. Same — Security for Negotiable Paper — Payment.</p> <p>A mortgagor in a mortgage securing negotiable paper is not justified in dealing with the mortgagee upon the assumption that he is still the owner of the securities, unless he produces them.</p> <p>3. Same — Nonnegotiable Paper — Assignment.</p> <p>Payments made to a mortgagee, either in money or negotiable paper, without notice that the mortgage has been assigned, are good as against the assignee, unless the mortgage was given to secure negotiable paper, which was transferred for value before maturity; but the giving of nonnegotiable paper to the mortgagee under such circumstances will not operate as a payment. Per Hooker and Grant, JJ.</p> <p>4 Same — Rights of Assignee.</p> <p>An assignee of a renewal mortgage securing nonnegotiable paper acquires no valid claim against the mortgagor, where, without the latter’s knowledge, the original mortgage had been previously transferred to a third person, in whose hands it is still outstanding.</p> <p>5. Same — Recording Laws — Bona Bide Purchaser.</p> <p>Nor can lie claim any right under the recording laws superior to the holder of the prior mortgage by reason of the failure of the latter to record his assignment, — at least where the sole consideration for the transfer of the renewal mortgage was the satisfaction of a pre-existing debt, since that fact does not entitle him to be regarded as a bona fide purchaser for value.</p> <p>•6. Same — Construction oe Instruments.</p> <p>The terms of a note may be modified and controlled by an accompanying mortgage.1</p> <p>7. Same — Negotiability—Time oe Payment.</p> <p>A provision in a mortgage securing a promissory note, and referred to therein, that the failure of the mortgagor to pay any tax or assessment upon the mortgaged premises for 30 days after it is payable shall render the whole debt, principal and interest, immediately due at the option of the mortgagee, does not destroy the negotiability of the note. Hooker and Grant, JJ., dissenting.</p> <p>'8. Same — Uncertainty as to Amount.</p> <p>But a provision in the mortgage requiring the mortgagor to pay all taxes that may be levied upon the lands “or upon this mortgage ” does have that effect, where the interest of a mortgagee in lands was taxable as such under the law in force at the time of the execution of the mortgage, since the amount payable to or on behalf of the mortgagee is thereby rendered uncertain.</p>

<p>Appeal from Grand Traverse; Corbett, J.</p> <p>Bill by Robert H. Wilson against Elizabeth A. Campbell to compel the discharge of a mortgage, and cross-bill by defendant against complainant, Mrs. John.F. Nichols, and others, to foreclose the same mortgage. From a decree for complainant on the original bill, and dismissing 'the cross-bill, defendant Campbell appeals.</p>

Assumpsit by Willard E. Warner, ancillary receiver in Michigan of the Minneapolis Mutual Eire Insurance-Company, against the Delbridge & Cameron Company, upon a premium note. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Alfred E. Brush presented a claim for rent in the probate court against the estate of Luther Beecher, deceased. The claim was contested by George L. Beecher and Luther S. Trowbridge, the administrators, and was disallowed, whereupon claimant appealed to the circuit court. From a judgment for defendants, claimant brings error. The following is the finding of facts made by the court before which the case was tried: Luther Beecher died September 16, 1892.

Assumpsit by Ered C. Loranger against Thomas W. Davidson and another for work and labor performed. From a judgment for plaintiff, defendants bring error.

Richard Blake presented a claim in probate court against the estate of Edward Lobb, deceased, for rent. The claim was disallowed, and claimant appealed to the circuit court. Prom a judgment for defendant, claimant brings error.

<p>Appeal from Mecosta; Palmer, J.</p> <p>Bill by Uriah S. Pringle against John Wagnoer to foreclose a land contract. Prom a decree for complainant, defendant appeals.</p>

Case by William Y. Chamberlain against the Lake Shore & Michigan Southern Railway Company for the wrongful ejection of plaintiff from one of defendant’strains. From a judgment for plaintiff, defendant brings error.

<p>Error to St. Clair; Eldredge, J., presiding.</p> <p>Ejectment by Wesley L. Hoffman against the city of Port Huron. From a judgment for defendant, plaintiff brings error.</p>

<p>Mortgages — Consideration—Parol Evidence.</p> <p>Parol evidence is admissible to show that a mortgage, purporting to have been given for the purchase price of land, was in fact made without consideration, for the purpose of satisfying the mortgagee’s relatives and of protecting the interests of the mortgagor, and that it was agreed that it should never be enforced.</p>

Mandamus by Dora M. Bentley to compel George S. Hosmer, circuit judge of Wayne county, to proceed with the hearing of a divorce suit brought by the relator, and to render a decree therein.

Bill by William C. Bennett against Edward J. Hickey and others to rescind a land contract, and for other relief. There was a decree for defendants, and complainant appealed.

Mandamus by John Swegles to compel Joseph W. Donovan, circuit judge of Wayne county, to awaid full costs to relator in a suit appealed from justice’s court and discontinued.

Mandamus by tbe Citizens’ Commercial & Savings Bank to compel Andrew C. Maxwell, circuit judge of Bay county, to proceed with the hearing of a suit in garnishment against the receiver of an insolvent corporation.

Mandamus by Fred A. Baker, chairman of the Democratic state central committee, to compel the board of election commissioners of Wayne county to print the ticket certified by relator as second on the official ballot to be used at the ensuing election. Charles P. Russell, chairman of the Prohibition state central committee, filed a like petition. Writ granted. W: R. Shelby, assuming to be chairman of the Democratic state central committee, filed a like petition.

Bill in aid of execution by Edward Treadwell and Noah W. Cheever, executors of the last will and testament of Hiram Arnold, deceased, against Joseph Wilsey, Orpha Wilsey, and Mary P. Lawson. From a decree for complainants, defendant Orpha Wilsey appeals.

Case by James Green, administrator of the estate of James Green, Jr., deceased, against the Chicago & West Michigan Railway Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.

<p>1. Statute of Frauds — Agreement not to be Performed within One Year — Contract for Support.</p> <p>The provision of the statute of frauds that every agreement that, by its terms, is not to be performed within one year from the making thereof shall be void unless in writing, is not applicable to a contract which may, by any possibility, be performed within the year, although the parties may have intended that it should, and it does in fact, extend over a longer period. So held where a daughter orally agreed to pay for the care of her aged father, and to allow the person furnishing the support to occupy lands belonging to her until the services should be paid for.</p> <p>2. Same — Interest in Land.</p> <p>An oral agreement by the owner of land with one in possession thereof that, if the latter takes care of the former’s father, she can stay on the land until she receives therefrom sufficient to pay her for such care, is invalid, under 2 How. Stat. § 6179, providing that no estate or interest in lands, other than leases-for not more than a year, shall be created unless by act or operation of law, or by a written deed or conveyance.</p> <p>3. Adverse Possession — Lessor and Lessee.</p> <p>One who goes into possession of land under a lease from the owner, and continues to occupy the position of a lessee, cannot set up an adverse holding against a purchaser from the owner.</p> <p>4. Ejectment — Landlord and Tenant — Notice to Quit.</p> <p>A three months’ notice to quit, given by the purchaser of land to one who went into possession under an invalid agreement with the former owner, a sister of the tenant, that the latter could remain in possession until she had received from the land sufficient to pay her for supporting their aged father, is sufficient to entitle the purchaser to recover in ejectment.</p>

Bill in aid of execution by Timothy L. Hodge against William M. Gray and others. From an order overruling his demurrer to the bill, defendant William M. Gray appeals. ■ Defendant William M. Gray appeals from a decree of the circuit court for the county of Macomb, in chancery, overruling his demurrer to the bill of complaint.

Case by Fanny Olson against the village of Manistique for personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant brings error.

Bill by William Rolfe and Mary Rolfe against Burn-ham, Stoepel & Co., William Barrie & Son, H. S. Robinson & Co., James H. Zeigler, and John Streng to restrain the sale of goods under a chattel mortgage. Defendants Zeigler and Streng answered, and asked that a receiver be appointed. From an order appointing a receiver and refusing to dissolve a preliminary injunction, Burnham, Stoepel & Oo. appeal.

<p>Error to Berrien; Coolidge, J.</p> <p>Ejectment by Henrietta Beck against Frederick Schick and Caroline Schick. Erom a judgment for plaintiff, defendants bring error.</p>

Assumpsit by Alexander Sutherland against tbe Eureka Eire & Marine Insurance Company on a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>1. Contracts — Employer and Employe — Question eor Jury.</p> <p>Whether or not the statement of an employer that the salary of an employé, who had previously been hired by the month, would have to be reduced to a stated sum “for the year,” and the latter’s assent to the reduction, created a new contract of employment for a year, is a proper question for the jury.</p> <p>2. Same — Substituted Agreement — Appeal.</p> <p>In an action on a contract of employment, the question whether such contract was superseded by a subsequent agreement is not sufficiently raised to warrant its consideration on appeal by a mere request to direct a verdict for the defendant for stated reasons, not including the alleged change in the contract.</p>

Assumpsit by John A. Covode against Henry Principaal and Daniel E. Corbitt for the breach of a building contract. From a judgment for plaintiff, defendant brings error.

<p>Habeas corpus by Charles Miller to obtain his discharge from the custody of William Chamberlain, warden of the state prison at Jackson.</p>

Assumpsit by Irving E. Emerson against John L. Kinne to recover a balance alleged to be due upon a building contract. From that part of the judgment awarding costs to defendant, plaintiff brings error. Plaintiff brought suit in assumpsit in the circuit court to recover a balance claimed to.be due upon a contract for the erection of a building at the cost of $225. Before suit was brought, defendant admitted that he owed plaintiff $75, and made a legal tender of that amount.

Assumpsit by Emanuel G. Strome against Lucius V. Lyon to recover a balance due upon a building contract. From a judgment for plaintiff, defendant brings error.

Assumpsit by Anna Van Houten, administratrix of the estate of Adrian Van Houten, deceased, against the Metropolitan Life Insurance Company, upon a policy of insurance. From a judgment for plaintiff, defendant brings error. The life of plaintiff’s husband was insured with the defendant. Upon his death payment was refused, and plaintiff brought this suit, in which she recovered verdict and judgment.

Bill by Caspar M. Bummell against Nehemiah Lamb and Merritt E. Lamb to enjoin the construction of a drain. Defendant Nehemiah Lamb appeals from an order adjudging both defendants to be guilty of contempt in violating a preliminary injunction.

Assumpsit by Fred C. Strutz against Addison T. Brown upon certain promissory notes and .for services rendered. From a judgment for plaintiff, defendant brings error.

Bill by the Yan Cleve Glass Company against William Erratt, George Hughes, Henry M. Airth, and Joseph Kesseler to enforce a mechanic’s lien. From a decree dismissing the bill, complainant appeals.

Bill by Carrie Joachimsthal against Isidor Joachimsthal for a divorce. Both parties appeal from a decree in relation to alimony and the custody of a minor child,

Assumpsit by Eugene E. Douville and another against Andrew W. Comstock and others for agents’ commissions on the sale of lands. From a judgment for plaintiffs, defendants bring error.