Volume 111 — Michigan Reports

Case by Ann J. Walker against the city of Ann Arbor for injuries sustained by reason of a defective sidewalk. From a judgment for defendant, plaintiff brings error.

<p>Error to Washtenaw; Kinne, J.</p> <p>Replevin by Henry Breitenwischer against Elmer Clough. From a judgment for defendant, plaintiff brings error.</p>

Assumpsit by Charles H. Knights and another against Charles A. Piella for the value of certain diamonds sent to defendant on selection. There was a judgment for defendant, and plaintiffs bring error.

Case by Silas Osborne against the Chicago & West Michigan Railway Company for negligently causing the burning of property adjacent to its right of way. From a judgment for plaintiff, defendant brings error.

Mandamus by Fred J. Northway, prosecuting attorney of Montmorency county, to compel Thomas Sheridan, supervisor of Vienna township, to deliver the assessment roll of said township to the committee on equalization of the county board of supervisors. Respondent filed a cross-petition to compel the board of supervisors to recognize him as a member of such board.

Replevin by Ambrose Cullen against William E. Harris. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff contracted to purchase of defendant a yoke of oxen at the stated price of $95, $45 of which was paid down, and it was agreed that the remaining $50 should be paid upon delivery of the oxen, a few days later.

, presiding. Ejectment by Grurdon Corning against Daniel Loomis and wife. From a judgment for plaintiff on verdict directed by tbe court, defendants bring error.

Mary E.. Boughton presented a claim against the estate of Darius Boughton, deceased. The claim was allowed in part by thé commissioners, and Griffith H. Francis, administrator with the will annexed, on the application of Darius F. Boughton, a legatee and heir at law, appealed. From a judgment for claimant, the administrator brings error.

Assumpsit by George W. Sheldon against Charles Leahy and another upon a building contract. From a judgment for plaintiff, defendants bring error.

<p>Error to St. Joseph; Yaple, J.</p> <p>George R. Rohrer was convicted of keeping his saloon open on Sunday.</p>

Mandamus by the board of supervisors of Wayne county to compel Joseph W. Donovan, circuit judge of said county, to dissolve an injunction restraining the execution of a contract for the performance of part of the work involved in the construction of a county building.

Samuel E. Raub presented a claim against the estate of Stephen S. Wilcox, deceased. The claim was disallowed by the commissioners, and-claimant appealed to the circuit court. Erom a judgment for claimant, William P. Nisbett, administrator, brings error.

Assumpsit by the Belding Manufacturing Company against Louisa J. Drury on a promissory note. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by the Cleveland Co-operative Stove Company against Ambrose S. Mallery for goods sold and delivered. From a judgment for plaintiff, defendant brings error.' The defendant, a merchant in the city of Detroit, had for some years prior to September, 1892, purchased stoves of the plaintiff, and received credit therefor, in the usual course of trade.

Mandamus by Fidus E. Fish, prosecuting attorney, to compel John B. Stockdale, a justice of the peace, to entertain a criminal complaint, and issue a warrant thereon. From an order denying the writ, relator brings certiorari.

, Daniel F. Newton and James Donovan were convicted in the police court of the city of Grand Rapids of violating an ordinance of the city, and appealed to the superior court. On motion there made, the complaint and warrant were quashed and the respondents discharged, whereupon the city sued out a writ of certiorari.

<p>Costs—Expense oe Obtaining Surety on Appeal Bond.</p> <p>Act No. 266, Pub. Acts 1895, entitled “An act relative to bonds, * * * and the acceptance as surety thereon of companies qualified to act as such, * * * and to the charging by fiduciaries of the expense of procuring sureties,” providing, inter alia, that the party entitled to costs in any action may include therein such reasonable sum as may have been paid to a surety company for executing any bond or other obligation in such action, does not authorize the taxation as costs of money paid by a party litigant to such company for signing an appeal bond, where the party does not occupy the relation of a fiduciary.</p>

Bill by the township of Greenfield and Henry Lanco, highway commissioner, against Milton G. Norton, to compel the removal of an obstruction from a public highway. From a decree dismissing the bill on demurrer, complainants appeal.

Assumpsit by John E. Nolan against Aaron C. Fisher for commissions on the sale of real estate. Defendant died pending the trial, and the cause was revived in the names of his executors, Edward Y. Swift and Charles B. Gray. There was a judgment for plaintiff, and defendants bring error.

Mandamus by Stephen Ostrander and others, supervisors of the several wards of the city of St. Louis, to-compel the board of supervisors of Gratiot county to admit relators to seats as members of said board. Respondent brings certiorari to review an order granting the writ.

, presiding. Assumpsit by Will R. Bryan against fractional school district No. 1 of the townships of Shelby and Sterling to recover salary as teacher. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Mandamus by Letitia Martin, administratrix, etc., to compel Willard M. Lillibridge, circuit judge of Wayne county, to tax certain term fees.</p>

Case by Washington C. Stevens against the city of Muskegon for a wrongful interference with his rights under a municipal grant. From a judgment for defendant on verdict directed by the court, plaintiff brings error. When the plaintiff had rested his case, the court, upon motion, directed a verdict for the defendant. Several reasons for the motion were assigned, but upon which one the court directed the verdict does not appear.

Bill by William Sbtirte against Sarepta Fletcher and others to set aside certain conveyances made in settlement •of an estate, for a partition of the real estate, and for other relief. From a decree for complainant, defendants appeal.

Mandamus by Christopher Schmitt and another to compel the common council of the village of Clinton to accept their liquor bond with a foreign corporation as sole surety. From an order granting the writ, respondent brings certiorari.

Application by the board of supervisors of Bay county for mandamus to compel the board of supervisors of Arenac county to refund certain taxes erroneously ap-portioned to, and paid to the State by, the former county. From an order dismissing the petition upon demurrer, relator brings certiorari.

, presiding. Assumpsit by Orange M. Clark and others, copartners as Clark, Farnham & Company, against Charles O’Rourke and James Norton, for goods sold and delivered^ From a judgment for plaintiffs on verdict directed by the court, defendants bring error. In 1892 an unincorporated Catholic society was formed in Ewen, Ontonagon county, and erected an edifice. Plaintiffs were dealers in lumber, and furnished the lumber with which the building was erected.

<p>1. Land Contract—Mistake—Evidence.</p> <p>A vendor’s claim that the word “heretofore,” in a land contract providing for releases to the vendee on account of payments “heretofore” made, was a clerical error, and that “hereafter” was intended, is sustained by the testimony of the vendee and his agent that neither of them expected, at the time of the transaction, that the release clause would cover the down payment, taken in connection with other clauses in the contract indicating clearly that the parties had in mind releases for future payments only.</p> <p>2. Same—Reformation—Equity Jurisdiction.</p> <p>In a suit for the rescission of such contract based on the failure of the vendor to release for the down payment, a decree correcting the mistake is properly entered under the prayer of the defendant for affirmative relief.</p>

Assumpsit by tbe Young Brothers Machine Company against Walter D. Young and another for goods sold and° delivered. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Replevin by Clarence Conely and another against Harlan J. Dudley and another. From a judgment for defendants on verdict directed by the court, plaintiffs bring error.

Bill by Maria Marx against William Smith and others to set aside the foreclosure of a mortgage and to reforeclose the same. From a decree dismissing the bill, complainant appeals.

Assumpsit by Frank Reis and others, heirs at law of George J. Reis, deceased, against the Arbeiter Unterstuetzung Verein No. 2, for death benefits. From a judgment for plaintiffs, defendant brings error.

Case by Anthony Borck, an infant, by Andrew Borck, his next friend, against the Michigan Bolt & Nut Works, for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by the Peerless Manufacturing Company against the Detroit Cycle Company, Limited, and others, for an accounting. From a decree for complainant, defendants appeal.

Frances Rhea presented a claim against the estate of Jacob Meyers, deceased. The claim was allowed in part by the commissioners, and the estate appealed to the circuit court. From a judgment for claimant, the estate brings error.

<p>1. Deeds—Consideration—Parol Evidence.</p> <p>Parol evidence that a bargain for an exchange of lands contemplated the payment by one party of interest on mortgages on the property conveyed by him, and the assumption of the principal only by the other party, is admissible as showing the consideration of the conveyance by the lattei% although the deed to him excepted the mortgages from the covenant of warranty, without any qualification in regard to interest.</p> <p>3. Evidence—Admissions.</p> <p>An attorney in foreclosure proceedings may, in a subsequent action involving the question of liability for the interest as between the mortgagor and a grantee of the premises subject to the mortgage, testify to statements of the mortgagor tending to support the theory that he agreed to pay the interest.</p> <p>3. Same—Witnesses—Use of Memoranda.</p> <p>A computation made by such witness when the mortgage was in his hands for foreclosure may be referred to by him in testifying to the amount due thereon.</p>

<p>Insurance—Employer’s Liability Policy—Notice oe Accident.</p> <p>Under an employer’s liability policy requiring the assured, “upon the occurrence of an accident, and upon notice of any claim on account of an accident,” to give immediate notice, in writing, “of such accident or claim” to the company, notice need not be given until there has been both an accident and a claim for damages by reason thereof.</p>

Assumpsit by the Michigan Bolt & Nut Works against George A. Steel and others for goods sold and delivered. From a judgment in its favor for less than the amount claimed, plaintiff brings error.

<p>Error to Iosco; Simpson, J.</p> <p>Trover by John M. Hoffman against Henry N. Loud. From a judgment for defendant, plaintiff brings error.</p>

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.

, presiding. Assumpsit by John T. Hidey against Marsena D. Swan to recover a balance due on the purchase price of real estate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Mandamus by Samuel Heavenrich and another to compel Robert J. Kelley, circuit judge of Alpena county, to vacate an order striking from the files of the court a stipulation for the discontinuance of certain actions at law.

<p>Divorce—Alimony—Reasonableness op Allowance.</p> <p>An award of §2,500 alimony out of defendant’s personalty, on condition that defendant should not be liable to complainant for the support of a daughter whose custody was awarded to the latter, and a further award of §2,000, conditioned upon complainant’s releasing her rights of dower in the realty, held reasonable and proper.1</p>

Bill by Walter H. Oades and another, executors of the last will and testament of John Oades, deceased, against William Marsh, administrator of the estate of Alvira S. Marsh, deceased, and others, to construe a will. From a decree for complainants, defendant Marsh appeals. John Oades died testate September 8, 1893, leaving a widow, and several children by a former marriage, and one by his second marriage, who was born after the will was executed.

), J., presiding. Assumpsit by Charles W. Harrah against Patrick F. Doherty to recover one-half of the amount of a promissory note indorsed by both parties and paid by the plaintiff. From a judgment for plaintiff, defendant brings error.

Bill by Joseph A. Hitchcock against Porter P. Misner and others to set aside an attachment levy. From a decree for complainant, defendants appeal.

Assimpsit by John Munroe, Jr., against John God-kin, for work and labor performed. From a judgment for plaintiff, defendant brings errror.

<p>1. Slander—Variance Between Pleadings and Proofs—Evidence.</p> <p>Evidence that the defendant in an action for slander stated to witnesses that he was confident that plaintiff had taken money and certain other articles, and made other statements fairly imputing a charge of larceny, supplemented hy his admission that he intended to convey the idea that plaintiff had stolen, will support a verdict for the plaintiff, although the words proved to have been uttered are slightly different from those set out in the declaration.</p> <p>3. Same—Privileged Communication—Question for Jury.</p> <p>Whether the statements of defendant were for the purpose of making an investigation which he had a right to make, or of imparting information to one who had a right to know, and were therefore privileged, is a question for the jury; under proper instructions.</p> <p>3. Appeal—Form of Verdict—Objection not Raised Below.</p> <p>An objection that the verdict in an action for slander failed to specify the amount awarded for damages to feelings separately from the amount awarded for other damages, as required by Act No. 316, Pub. Acts 1895, § 3, comes too late, where the case was pending when the act went into effect, and the point is raised for the first time in a supplemental brief.</p>

<p>Justices or the Peace—Docket Entries—Adjournment.</p> <p>A judgment rendered by a justice of the peace on failure of defendant to appear on an adjourned day is void if the docket entries fail to show the hour at which.the summons was returnable, the hour and place to which the cause was adjourned, the. hour on the adjourned day at which plaintiff appeared, and the hour at which the case was called by the justice.</p>

Assumpsit by Sarah M. Dayton against William B. Stone for the breach of a contract for the sale of goods. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Error to Wayne; Donovan, J.</p> <p>Trover by Edwin Dawson against William A. Lindsay and John Eldert. From a judgment for plaintiff, defendants bring error.</p>

<p>Appeal—Divorce.</p> <p>A decree granting to a husband a divorce on the ground of extreme cruelty, alleged to consist in refusal of cohabitation, was affirmed.</p>

George and Walter Seymour presented for probate the will of their father, Joseph Seymour, deceased. Sarah Newton and others, daughters of deceased, appealed to the circuit court from an order probating the will. From a judgment for contestants, proponents bring error.

Assumpsit by William Whitaker against Seth E. Engle for a commission on an exchange of real estate. From a judgment for plaintiff, defendant brings error.

Assumpsit by Mark F. Hope and another against the Delaware & Hudson Canal Company for tbe alleged breach of a contract of carriage. From a judgment for defendant on verdict directed by the court, plaintiffs bring error. One James Cavanagh was the owner of 96 bales of woolen rags, deposited with the defendant company at Plattsburg, N. Y. He sold them to the plaintiffs, who were engaged in business at Detroit, Mich. The defendant was the original shipper.

Joseph; Yaple, J. Susan E. Slack presented a claim against, the estate of Henry Slack, deceased, for services rendered decedent during his lifetime. The claim was contested by the administrator, John M. Norton, and was disallowed in part, whereupon the claimant appealed to the circuit. From a judgment there for defendant on verdict directed by the court, claimant brings error.

Bill by Aaron Brewer against Maggie Landis and others to foreclose a mortgage. A decree for tbe sale of tbe premises was assigned by complainant to Eli Landis, and tbe latter bid them in at commissioner’s sale, and subsequently transferred tbem to John R. Watts. Maggie Landis filed a petition to set aside tbe sale. From a decree for petitioner, Eli Landis and Jobn R. Watts appeal.

<p>Appeal—Second Trial—Instructions.</p> <p>A judgment will not be reversed upon a second appeal for alleged error in giving or refusing instructions, where the testimony was the same upon both trials, and the cause was submitted to the jury in accordance with the opinion on the former appeal.</p>

<p>Error to Wayne; Hosmer, J.</p> <p>Assumpsit by Simeon F. Fuller against the Peninsular White Lead & Color Works on a contract of employment. From a judgment for plaintiff, defendant brings error.</p>

, presiding. Assumpsit by Oliver S. -Angelí against James Cortrigbt, treasurer of Dewitt township, to recover taxes paid under protest. From a judgment for defendant on verdict directed by-the court, plaintiff brings error.

Assumpsit by Lucina Bennett against Ezra S. Knowles for damages growing out of a contract for an exchange of lands. From a judgment for plaintiff, defendant brings error.

Bill by Edward B. Vincent against tbe city of Kalamazoo to restrain interference with the erection of a building. From a decree for complainant, defendant appeals.

Bill by Luther Smith against Abijah Pegg for a decree for a deficiency on foreclosure, and for an award of execution. From a decree dismissing the bill, complainant appeals. On July 14, 1884, a decree of foreclosure was made in a suit brought by the complainant against defendant, Pegg, and wife, and one Lindsley. Pegg had executed the note and mortgage upon 'the real estate described in the bill of complaint, and was therefore personally liable.

Trover by George M. Edison against Joseph Babka and Delia Babka. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Joseph; Yaple, J. Assumpsit by Levi J. Knauss against Isaac D. Major on a verbal warranty. From a judgment for plaintiff, defendant brings error. Plaintiff brought suit upon an alleged verbal warranty in the sale of a promissory note.

<p>1. Criminal Law—Robbery—Joint Respondents—Evidence — Order of Proof.</p> <p>Upon a prosecution, for robbery accompanied by an assault, the admission of evidence that one jointly charged with the respondent had blood on his sleeve when arrested, soon after the robbery, is not error, where it is followed by evidence that the parties were seen together shortly before and after the robbery, and the jury are instructed to disregard such evidence unless they are satisfied that both parties were participants in the crime.</p> <p>2. Same—Unwilling Witness.</p> <p>It is not error to permit the prosecuting attorney to put leading questions to one of his own witnesses, or even to call the attention of such witness to an affidavit previously made by her, and which is inconsistent with her evidence on the trial, where it is evident that she is an unwilling witness, and is endeavoring to screen the accused.</p> <p>3. Same—Evidence—Hearsay.</p> <p>Evidence that, prior to respondent’s arrest upon a criminal charge, a third person told the officer who was attempting to find the guilty parties that he knew who they were, and would help arrest them, and that such officer, being then unable to go, sent with such third person another officer, who arrested the accused and another person for the " commission of the crime, is hearsay merely, and its admission is reversible error, where the main question at issue is the identity of the respondent with the person committing the offense charged.</p>

<p>Exceptions before judgment from Ottawa; Padgham, J.</p> <p>Auke De Groot was convicted of a violation of tbe liquor law.</p>

<p>1. Judgment by Default—Return, of Service—Sufficiency.</p> <p>Proof of service of a copy of the declaration and notice of rule to plead upon each of the defendants in the action is necessary to authorize a judgment by default, and a return showing merely the service of “a copy” of the declaration and rule upon “the defendants” is insufficient.</p> <p>2. Same—Parol Evidence.</p> <p>A return of personal service made by a private person may be contradicted by the defendant.</p> <p>3. Same—Vacation of Judgment—Mandamus.</p> <p>Mandanms will lie to compel the vacation of a default judgment where the sworn statement of the judgment debtor that there was no personal service upon him is contradicted only by a return of service made by a private person, and the relator further shows that he had no knowledge of any of the proceedings in the cause until after the expiration of the time allowed for suing out a writ of error, and that he moved to set them aside as soon as he did learn of them, and the testimony brought up with the petition fails to disclose any liability on his part to the plaintiff in the action.</p> <p>4. Rule to Plead—Entitlement—Sufficiency.</p> <p>A rule to plead is not fatally defective because not entitled in the names of all the defendants, where the copy served is indorsed upon a copy of the declaration^ in. which all parties are correctly named.</p>

Proceedings by Rouse, Hazard & Company to obtain the issuance of execution against Edwin B. Robinson, John A. Matheson, and John T. Holmes for the unpaid portions of their subscriptions to the capital stock of the Detroit Cycle Company, Limited. From a judgment for plaintiff on verdict directed by the court, defendants bring error.

Garnishment proceedings by Henry M. Ferry against the Cincinnati Underwriters, as garnishee of the S. H. Davis Company. From a judgment for plaintiff, the garnishee brings error.

, presiding. Assumpsit by Andrew Eorster against William S. Green and another, trustees of the estate of William B. Wesson, deceased, for work and labor performed. From a judgment for plaintiff, defendants bring error.

Case by Philip J. Mead against Joel M. Randall for the alienation of the affections of plaintiff’s wife. From a judgment for plaintiff, defendant brings error.

, presiding. Case by Oscar Phillips against the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. Prom a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Debtor and Creditor—Trusts—Evidence.</p> <p>The finding of the circuit judge that a sum of money advanced by complainant to defendant constitutes a loan at a stipulated rate of interest will not be reversed, and a trust declared as to the fund, because defendant unreasonably refuses to pay or secure the claim, and the transaction, under the circumstances, works a hardship upon the lender.</p>

Assumpsit by tbe Staver & Abbott Manufacturing Company against Katherine A. Blake and others, stockholders in the Grand Rapids Storage & Transfer Company, Limited, for goods sold and delivered to such association. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

<p>Trusts—Evidence.</p> <p>Evidence that one to whom her deceased husband had left all his property, with a request that she give his sister $1,000 therefrom, paid such sister from time to time certain moneys as interest, and that she also expressed an intention of paying the principal amount when it should be convenient to do so, is insufficient to establish a declaration of trust as to such sum.</p>

Case by Frank B. Cburcli against tbe president and trustees of the village of Howard City for personal injuries. From a judgment for plaintiff, defendant brings error. The defendant constructed a plank sidewalk along the north side of Edgerton street, one of the principal streets of the village, in front of a block where the buildings had been destroyed by fire. It is 105 feet long, 10 feet wide, and from 22 to 53 inches high.

<p>Error to Kent; Grove, J.</p> <p>Assumpsit by Jobn A. Tolman Company against M. Francis Griffin and another on a contract of guaranty. From a judgment for defendants, plaintiff brings error.</p>

Case by tbe Michigan Trust Company against the State Bank of Michigan to recover damages for defendant’s failure to transfer upon its books a certificate of stock which had been assigned to plaintiff by the registered holder. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by the Citizens’ State Bank of Monroeville, Indiana, against the Kalamazoo County Bank and Elias W. Bowman, president and general manager, to compel the transfer to complainant of certain certificates of stock. The defendant bank, in its answer, claimed a lien upon the stock, and asked to have the lien foreclosed. From a decree dismissing the bill and denying the order of foreclosure, all parties appeal.

Bill by the Stoney Creek Woolen Company and Foster Macgurn against Robert Smalley and Edwin E. Davis to set aside a deed and a mortgage on the ground of fraud. From a decree for complainants, defendant Smalley appeals.

Mandamus by the city of Lansing to compel the board of state auditors to allow a claim against the State for affording fire and police protection to its property. In 1893 the legislature passed a local act entitled: “An act to reincorporate the city of Lansing, in the county of Ingham, and to repeal all acts and parts of acts in conflict herewith.” This act will be found in the Local Acts of 1893, extending from page 1230 to page 1306.

Attachment proceedings byJ Daniel Cleland against John H. Clark. The circuit court commissioner, upon defendant’s petition, entered an order dissolving the attachment, and plaintiff removed the proceedings to the circuit court by certiorari. From a judgment affirming the order-of dissolution, plaintiff brings certiorari.

William R. Lyon, as executor, presented for probate the will of Laura E. Dada, deceased. Prom an order probating the will, Percy A. Dada, an infant, by his guardian, Warner M. Baldwin, appealed to the circuit court. The will was there set aside, and the executor brings error.

Exceptions before judgment from Lenawee; Lane, J. Charles G. Grant was convicted of an indecent assault upon a female child under the age of 14 years.

<p>Error to Ingham; Person, J.</p> <p>Replevin by Joseph E. Carroll against William H. McKale. From a judgment for plaintiff on verdict directed by the court, defendant brings error.</p>

Bill by Lavinia J. Miles against John McNaughton and others to quiet title. From a decree dismissing the bill, complainant appeals. On March 15, 1888, John H. Fielding and Michael F. Fielding obtained title by warranty deed to the following described land: ‘ ‘ That certain piece or parcel of land situate and being in the village of Sault Ste.

Assumpsit by James F. McCuaig, assignee of George Beasley & Company for benefit of creditors, against the City Savings Bank, to recover the amount of a general deposit. From a judgment for' defendant on verdict directed by the court, plaintiff brings error.

Mandamus by William Bérndt and another to compel Frank D. M. Davis, circuit judge of Ionia county, to set aside a judgment for costs.

Mandamus by William P. Osborn against the common council of the city of Detroit to compel the payment to relator of a balance alleged to be due him for salary as special assessment clerk in the office of the receiver of taxes. From an order granting the writ, respondent brings certiorari.

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

Mandamus by Fred A. Baker to compel the board of state canvassers to obtain corrected returns of the votes cast in certain counties at a general election, and to canvass and record the result in accordance with the returns as corrected.

<p>1. Statutes—Constitutionality—Surety Companies.</p> <p>Act No. 266, Pub. Acts 1895, permitting the acceptance, as sureties on bonds, of companies authorized to act as such, is not dependent for its validity upon the constitutionality of Act No. 194, Pub. Acts 1885, but is in itself complete.</p> <p>2. Same—Deposit With Surety—Exception.</p> <p>Since a deposit of the state funds subject to the control of a surety company would be improper and illegal, the bond of the state treasurer is excepted from the operation of section 6 of the statute, which provides for a deposit of the money for which such company may be responsible “if such deposit is otherwise proper.”</p> <p>3. Official Bonds—Acceptance.</p> <p>The acceptance of the state treasurer’s bond is discretionary with those charged with the duty of accepting it.</p>

Bill by the Kent Furniture Manufacturing Company and the Chicago & West Michigan Railway Company against George H. Long, individually and as executor of the will of Arthur B. Long, deceased, to restrain the prosecution of an action in ejectment. From a decree dismissing the bill, complainants appeal.

<p>1. Master and Servant—Duty as to Appliances.</p> <p>An employer is not in duty bound to furnish his employés the safest known appliances and instruments, but he discharges his duty towards them in that respect if he furnishes appliances which are in common and general use throughout the country in the same or similar lines of work.</p> <p>2. Same—Facts Conclusively Shown—Instructions.</p> <p>In an action by an employé for personal injuries alleged to have been sustained by reason of an unfit appliance furnished by the employer, it is error to submit to the jury the question whether the particular kind of appliance was commonly used by other employers in the same line of work, -where defendant’s evidence that it was so used is in no way controverted.</p>

<p>1. Receivers—Divestiture of Possession—Ex Parte Order. An order appointing a receiver pendente lite, and requiring property in the possession of mortgagees to be turned over to him, issued in a proceeding under 3 How. Stat. § 8749o, relating to voluntary assignments, and authorizing persons having preferred claims to apply for a receiver in certain cases, attempts to divest possession on a preliminary inquiry, and is therefore improvident, if not an absolute nullity.</p> <p>% Same—Mandamus.</p> <p>Such order being appealable, mandamus will not lie to set it aside.</p>

<p>1. Landlord and Tenant — Change of Possession — How Effected.</p> <p>A change of possession of a stock of merchandise from the merchant to the owner of the store building is effected, where the latter, on being informed by the merchant that he has sold the goods, and that he claims no further interest therein, acquiesces in a surrender of the lease, and thereafter watches and cares for the goods during litigation between the former tenant and the alleged purchaser.</p> <p>2. Same—Warehousemen—Liens.</p> <p>Although the landlord, to whom possession is so surrendered, may not be a warehouseman within the meaning of the statute, he is entitled to a lien as such as against the tenant, where he immediately advises the latter that he will make a claim for storage if the goods are not removed.</p> <p>3. Liens—Execution Levy—Title.</p> <p>Where it appears, in a proceeding to restrain an officer from interfering with the possession of goods held for storage charges, that the title to the goods was in a married woman, and that the officer levied thereon under an execution running against her husband, a decree establishing the lien for storage cannot be complained of by the officer.</p>

<p>Error to Wayne; Frazer, *J.</p> <p>Replevin by the Detroit Gas Company against the Moreton Truck & Storage Company. From a judgment for defendant, plaintiff brings error.</p>

<p>Petition by the Home Life Insurance Company for leave to file an information in the nature of quo warranto against the Home Life Assurance Company.</p>

Bill by the Detroit Motor Company against the Third National Bank and Joseph L. Hudson, receiver, for an accounting as to certain bonds pledged as collateral security. From a decree dismissing the bill, complainant appeals.

Trover by the Lansing Iron & Engine Works against Hannah C. Wilbur. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Cage by Margaret J. A. Howey against Maxwell M. Fisher for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by Thomas J. Lucas and Mary A. Lucas against Thomas Friant, McGeorge Bundy, the Grand Rapids Vapor-Stove Company, and others, to set aside a mortgage and sale of corporate property, and for an accounting. From a decree dismissing the bill, complainants appeal.

<p>Error to Saginaw; Wilber, J.</p> <p>Assumpsit by Robert M. Randall against Fred A. Dudley on an account stated. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by John Robson and others against George M. Dayton and others upon a bond. From a judgment for plaintiffs, defendants bring error.

<p>Error to Wayne; Hosmer, J.</p> <p>Assumpsit by Edwin M. Raymond against John C. Day for commissions on insurance. From a judgment for plaintiff, defendant brings error.</p>

Case by Fred J. Baker, an infant, by bis next friend, against tbe city of Grand Rapids, for personal injuries. From a judgment for plaintiff, defendant brings error.

<p>1. Appeal—Assignments of Error—Failure to Embody in Bill of Exceptions.</p> <p>The court passed upon an objection to the exclusion of evidence presented and argued before the court below, and clearly disclosed by the record, although the assignments of error were not embodied in the bill of exceptions.</p> <p>2. Bills and Notes—Fraudulent Transfer—Right of Administrator to Rescind.</p> <p>The right to rescind a transfer of a promissory note for the fraud of the transferee survives to the transferor’s personal representatives.</p> <p>3. Same—Action by Indorsee—Defense of Fraud—To Whom Available.</p> <p>In an action against the maker of a negotiable promissory note brought by the payee’s indorsee, it is competent for the personal representative of the payee to intercede and defend for the maker, indemnifying him against loss, where the indorsement was procured by fraud.</p>

Case by Ida Davidson against the city of Muskegon for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

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

Louis Pichette and William Tallier were jointly informed against for burning a sawmill! Tallier was acquitted. Pichette was convicted, and sentenced to imprisonment for five years in the state prison at Marquette.

<p>Error to Kent; Grove, J.</p> <p>Ejectment by Abram H. De Long and wife against Erank A. Baldwin and wife. From a judgment for defendants, plaintiffs bring error.</p>

Bill by Gamaliel I. Thompson, executor of the will of John M. Osborn, deceased, and others, against Sarah A. Tucker-Osborn, for the specific performance of an ante-nuptial contract. From a decree dismissing the bill, complainants appeal.

Bill by Horace H. Dickinson against the city of Detroit and Albert Stoll, receiver of taxes, to restrain the collection of a 'paving tax. From a decree for complainant, defendants appeal.

Daniel M. Butler and William H. Bird were convicted of conspiracy to cheat and defraud the county of Wayne, and were sentenced to imprisonment for 18 months in the Detroit House of Correction. Respondent Butler brings error.

<p>Appeal from Kalkaska; Aldrich, J.</p> <p>Bill by Peter Muirhead against Louis Sands to quiet title. From a decree for complainant, defendant appeals.</p>

Mandamus by Riley L. Crane, prosecuting attorney, to compel Byron A. Snow, circuit judge of Saginaw county, to set aside an order quashing an information in a criminal case.

Quo warranto by the Attorney General, on the relation of Joseph W. and Will J. Dusenbury, against Oscar R. Looker and others, to determine the right of .respondents to hold the offices of. members of the board of directors of the Michigan Mutual Life Insurance Company.

Proceedings by the city of Pontiac against Albe A. Lull and others to condemn land for street purposes. Respondent Lull appeals from an order confirming the verdict of the jury. This is a proceeding to condemn lands for a public street in the city of Pontiac.

<p>Appeal from Saginaw; Wilber, J.</p> <p>Bill by the Saginaw Building & Loan Association against William M. Tennant and others to foreclose a mortgage. Lillie McBrian was admitted as a defendant, and complainant appeals from a decree awarding to her a first lien upon the premises.</p>

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

Replevin by McEwan Brothers & Company against Alice M. Carpenter and another. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

<p>1. Writ op Assistance—Mandamus.</p> <p>The proper remedy, where a party to the record is aggrieved by an order granting a writ of assistance, is by appeal, and not by mandamus to compel the court to set aside the order.</p> <p>2. Same—Objections—Claim op Title.</p> <p>A mere verbal statement by one not a party of record, made in the course of proceedings for a writ of assistance in behalf of a purchaser at foreclosure sale, that he claims possession by virtue of a sale for taxes, is too informal to warrant consideration.</p>

<p>Mandamus by Hattie Mulhern to compel William E. Grove, circuit judge of Kent county, to vacate an order declaring void certain proceedings under Act No. 181, Pub. Acts 1895, to compel an examination before a circuit court commissioner of the defendant in a suit for slander instituted by relator.</p>

, presiding. Bill by George Feige against Helen M. Babcock and Samuel G. M. Gates for a partnership accounting. Defendant Babcock filed a cross-bill against complainant and defendant Gates. From the decree rendered, defendant Gates appeals.

Mandamus by the city of Muskegon to compel Samuel A. Soderberg, county treasurer, to pay oyer certain real-estate taxes collected by him for the city. From an order granting the writ, respondent brings certiorari.

Mandamus by Henry J. Daniels and others, trustees of the village of Vicksburg, against John Dong, president of said village, to compel the signing of certain bonds voted for improvement purposes. From an order granting the writ on demurrer to the answer, respondent brings certiorari.

<p>Certiorari to Muskegon; Russell, J.</p> <p>Mandamus by Nelson De Long to compel the board of supervisors of Muskegon county to allow a claim for attorney’s fees and expenses incident to an appeal from the conviction of an indigent prisoner. From an order denying the writ, relator brings certiorari.</p> <p>The relator, an attorney at law, was appointed by the circuit court of the county of Muskegon to defend one Smith, an indigent prisoner, charged with the crime of assault with intent to do great bodily harm less than the crime of murder. He was convicted. The relator, ■upon his own motion, and without any petition to or order of the circuit court, brought the case to this court by a writ of error. A bill of exceptions was settled. The relator procured the record and his brief to be printed. The case was affirmed by this court. People v. Smith, 106 Mich. 431. The relator thereupon presented a claim against the respondent for $356.80, of which $200 was for his services and $156.80 for printing the record and brief. The respondent refused to allow the claim, and the relator petitioned the circuit court for the writ of mandamus to compel its allowance. The court refused to issue the writ, and the relator has brought the proceeding to this court by the writ of certiorari.</p>

Bill by Lewis Waterman and others against Betsey A. Bailey and others to set aside a deed. From a decree dismissing the bill, complainants appeal. On motion to dismiss.

<p>Equity Jurisdiction—Injunction—Boundaries.</p> <p>A court of equity is not deprived of its jurisdiction to quiet title and to issue an injunction in a proper case by the fact that a determination of the questions involved requires the location of a disputed boundary.</p>

Clair; Vance, J. . Case by David Turner against the St. Clair Tunnel Company for personal injuries. From a judgment for plaintiff, defendant brings error. The negligent act, if any, was done in Ontario, Canada. • The rights of the parties are governed, therefore, by the law of Ontario. Story, Conf.

Mandamus by John C. Wilkinson to compel the common council of the city of Saginaw to audit and allow his claim for salary as a police officer. From an order denying the writ, relator brings certiorari.

Mandamus by Hans A. Michelson to compel the board of police commissioners of the city of Saginaw to reinstate him as a member of the police force, and the common council of said city to audit and allow his claim for salary. From an order denying the writ, relator brings certiorari.

Case by William Welsh against the city of Lansing for personal injuries. From a judgment for plaintiff, defendant brings error.

Assumpsit by George W. Stone, receiver of the Central Michigan Savings Bank, against Nelson F. Jenison, to recover the amount of certain certificates of deposit alleged to have been paid to defendant after the bank became insolvent, with a view to his preference over other creditors of the bank. From a judgment for defendant, plaintiff brings error.

Mandamus by the village of St. Johns to compel the board of supervisors of Clinton county to allow a claim for the compensation of a health officer for special services during an epidemic of smallpox. From an order granting the writ, respondent brings certiorari.

. Mandamus by the J. P. Scranton Lumber Company to compel Joseph W. Donovan, circuit judge of Wayne county, to set aside an order allowing an appeal from a justice’s judgment.

Bill by Noah P. Loveridge against Fred Shurtz for the specific performance of a land contract. From a decree for complainant, defendant appeals. Complainant and defendant, on November 11, 1893, entered into a written contract, by which complainant agreed to sell to defendant certain lands. The consideration was $5,000, to be paid by an assignment of a mortgage for $1,900, then owned by. the defendant, and the execution of a mortgage for $3,100 upon the land to be conveyed.

<p>Error to Wayne; Hosmer, J.</p> <p>Ejectment by Nellie Schafer against Engelbert Hauser and others. From a judgment for defendants, plaintiff brings error.</p>

<p>Error to Chippewa; Steere, J.</p> <p>Garnishment proceedings by Ambrose Guiterman and others against the German-American Insurance Company, as garnishee of Harry A/Harrison. From a judgment for defendant, plaintiffs bring error.</p> <p>Plaintiffs sued one Harry A. Harrison, who was indebted to them for goods sold, and garnished the defendant insurance company. The following are the facts as found by the trial court:</p> <p>“On April 3,1893, defendant Harry A. Harrison insured his stock of merchandise, consisting of stationery and jewelry, located in Sault Ste. Marie, Michigan, with the garnishee defendant, for the sum of $750, receiving a Michigan standard policy, which contained the following clause: ‘ Loss, if any, payable to Eaton, Lyon & ' Co., of Grand Rapids, Michigan, as their interest may appear.’ Eaton, Lyon' & Co. were jobbers, and creditors of the defendant Harrison. When he purchased the stock of goods insured under the policy in question, he made arrangements with said Eaton, Lyon & Co. by virtue of which they were to furnish him backing as he wanted it, in the way of merchandise and credits for the same, he to give them, as security therefor, an assignment of the insurance upon his stock of merchandise. At the time this insurance was effected, the arrangement between Eaton, Lyon & Co. and defendant Harrison was stated to the agent of the insurance company, who was consulted in relation to it. After consultation with the agent of the garnishee defendant, the policy was made out in the form and with the provisions stated, and was sent to Eaton, Lyon & Co. for the purpose of carrying out the arrangement between • them and defendant Harrison as to the credits and security. A loss by fire occurred upon the property insured, which was subsequently satisfactorily adjusted between parties in interest, which adjustment showed a liability upon said policy, due from the garnishee defendant to whoever was entitled to it, of $375.72. At the time of the fire and adjustment of loss,' defendant Harrison owed to Eaton, Lyon & Co., for merchandise purchased of them, about $3,000.”</p>

Assumpsit by John K. Milligan against the Sligh Furniture Company for the breach of a contract of employment. From a judgment for plaintiff, defendant brings error. Plaintiff entered into a written contract with the defendant, by which he agreed to act as traveling salesman for it for the year 1895, at an agreed salary of $1,750, payable monthly, and travel over such territory and at such times as it might designate, and to sell its goods as instructed.

, presiding. Attachment proceedings by the Finlay Brewing Company against Christian Prost. Plaintiff brings certiorari to review an order dissolving the writ. The plaintiff brought suit to recover a debt of $5,865, due for goods sold and delivered. Suit was commenced by the writ of attachment.

Assumpsit by Asbury Black and another against Henry Herbert for the contract price of a monument. From a judgment for plaintiffs, defendant brings error.

Assumpsit by Robert B. Shank against Electa Wood-worth for goods sold and delivered. From a judgment for plaintiff, defendant brings error.

, presiding. Assumpsit by Cyrus A. Sherrod against Therese L. Costigan and Eugene Costigan upon promissory notes. From a judgment for plaintiff, defendants bring error.

Bill by August Yier against the city of Detroit, and James Dean and others, constituting the board of public works, to quiet title. From a decree for complainant, defendants appeal.

Bill by Charles S. McDonald, trustee, and the Meyer Rubber Company, against the Preston National Bank, Albert L. Stephens, and Clarkson M. Snedicor, to determine the construction and validity of a chattel mortgage to the defendant bank, -for a marshaling of securities, and for the appointment of a receiver. From a decree establishing the priority of the lien of the bank, complainants appeal.

<p>Taxes—Petition eor Sale oe Land—Hearing—Continuance— Jurisdiction to Enter Decree.</p> <p>Section 59 of the tax law of 1889 ( 3 How. Stat. § 1170/8), providing that if, from any cause, the hearing on the petition of the auditor general for a decree against delinquent lands should not be had on the day fixed in the notice, the same should stand continued from day to day during the term, without the entry of any order of continuance, and if, from any cause, no decree should be made on such petition, the auditor should, as soon as practicable, file a new petition, did not operate to continue the case beyond the term, and, by adjourning for the term without having entered any order of continuance, the court lost jurisdiction to enter a decree until a new petition should be filed.</p>

Mandamus by Emily L. Cain and others to compel William E. Brown, prosecuting - attorney of Lapeer county, to file an information in the nature of a quo warranto against the acting officers of the village of Attica, From an order granting the writ, respondent brings certiorari.

<p>Error to Wayne; Donovan, J.</p> <p>Case by William N. Pringle and another against George J. Miller for deceit. From a judgment for plaintiffs, defendant brings error.</p>

Assumpsit by Joseph H. Berry and Thomas Berry against Walter N. Haldeman for the breach of a contract for the sale and delivery of goods. From a judgment for plaintiffs, defendant brings error.

<p>Appeal—Verdict on Conflicting Evidence.</p> <p>Where the issues were fairly presented to the jury, a verdict supported by competent evidence will not be disturbed on apj peal.</p>

<p>1. Contracts—Construction—Quantum Meruit.</p> <p>A woman who contracted with a farmer to take charge of his farmhouse, and “do the work for and take care of” the hired men, some of whom were employed continuously from year to year, is entitled, under her contract, to a reasonable compensation for washing and mending done for the men employed.</p> <p>2. Trial—Leading Questions—Discretion of Court.</p> <p>The allowance of leading questions is a matter entirely within the discretion of the trial court.</p> <p>3. Witnesses—Value of Services.</p> <p>A woman employed to do the general housework about a farmhouse is competent to testify, in an action to recover therefor, as to the nature and value of the services rendered.</p> <p>4. Same—Expert Testimony.</p> <p>The value of such services is not so far a subject upon which a jury can form an opinion as to render inadmissible expert testimony in relation thereto.</p> <p>5. Evidence—Definiteness.</p> <p>In an action against the owner of a farm for services rendered in looking after the farmhouse and in caring for the hired men, a witness who was employed upon the farm while plaintiff was performing the services in question may state the average number of hands employed.</p>

<p>Contracts—Assignment.</p> <p>The right to recover money which has already become due under a contract is assignable, although the obligations are such that the defendant could not be required to rely upon an , assignee to perform that part of the contract remaining ex-ecutory.</p>

Case by Carrie Lucker against Richard Liske and others under the civil-damage act. From a judgment for plaintiff, defendants bring error.

Assumpsit by Lyman Gr. Mason against the city of Muskegon to recover taxes paid under protest. From a judgment for defendant, plaintiff brings error.

<p>1. Limitation of Actions—Conflict of Laws.</p> <p>The law of limitation of actions is a part of the lex fori.</p> <p>2. Same—Foreign Plaintiff—Ignorance of Defendant’s Whereabouts.</p> <p>The fact that the obligor in a bond executed in another State removes to Michigan without the knowledge of- the obligee does not operate to suspend the running of the statute in the former’s favor until such time as the latter ascertains his whereabouts.</p> <p>-3. Same—Part Payment—Arrest of Statute.</p> <p>A payment made by a grantee of mortgaged premises, who took them subject to the mortgage, will not, in the absence of any showing that he was acting as agent of the mortgagor, or otherwise than for his own benefit, be deemed a payment by the mortgagor in such sense as to arrest the running of the statute in the latter’s favor.</p>

Case by George S. Ostrander against the city of Lansing-for personal injuries. From a judgment for plaintiff, defendant brings error.

Assumpsit by Frank F. Hilbert against Albert Barry upon a promissory note. From a judgment for plaintiff on verdict directed by the court, defendant brings error.