Volume 112 — Michigan Reports

Hannah M. Sullivan presented for probate the will of ’ Mary Foley, deceased. The probate was opposed by Thomas Foley and Bridget Toole. The will was disallowed in the probate court, and an appeal was taken to the circuit. From a judgment for contestants, proponent brings error.

Bill by the Minneapolis, St. Paul & Sault Ste. Marie Railway Company against Webster L. Marble and others to enjoin the prosecution of a suit in ejectment. From a decree dismissing the bill on demurrer, complainant appeals.

<p>Error to Kent; Grove, J.</p> <p>Replevin by Nanco Rosema against Thomas H. Porter. From a judgment for defendant on verdict directed by the court, plaintiff brings error.</p>

Trover by Justice Strawbridge and Isaac Clothier, co-partners, against Henry Stern and Jacob Levy, impleaded with Charles Livingston and Nathan Block, copartners. From a judgment for defendants Stern and Levy on verdict directed by the court, plaintiffs bring error.

Case by Charles D. Whoram against the township of Argentine for injuries sustained by reason of a defective highway. From a judgment for plaintiff, defendant brings error.

Case by Charles W. Bahel against Peter J. Manning for personal injuries due to the negligent discharge of a firearm. From a judgment for plaintiff, defendant brings error.

Assumpsit by Isaac W. Carrel and others, copartners, against the Kalamazoo Cold-Storage Company, Limited, for goods sold and delivered. From a judgment for plaintiffs, defendant brings error.

, presiding. Case by Thomas Kingston against the Fort Wayne & Elmwood Railway Company for personal injuries. From a judgment for defendant, plaintiff brings error.

<p>Error to Grand Traverse; Corbett, J.</p> <p>Trover by Julius Huellmantel against Medad Vinton. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by D. Hewitt Chisholm against the Preferred Bankers’ Life Assurance Company for the breach of a contract of employment. From a judgment for plaintiff, defendant brings error.

Assumpsit by the Jennison Hardware Company against John Godkin for goods sold and delivered. From a judgment for plaintiff, defendant brings error.

<p>1. Street Railways—Collision with Loaded Wagon—Negligence.</p> <p>Whether the motorman of an electric car was guilty of negligence in attempting, at an increased speed, to pass a wagon loaded with barrels moving in the same direction a few feet ahead, is a question for the jury, where there is evidence that the wagon was driven within the line of the car when it was from 30 to 50 feet distant, and that the motorman at the time had his car under complete control.</p> <p>2. Same—Contributory Negligence—Question for Jury.</p> <p>A driver who occupies such a position in front of a load as to render it difficult for him to see an electric car approaching from the rear, and who, for the purpose of avoiding an obstruction, drives so near to the track that a collision and runaway result, is not, as a matter of law, guilty of contributory negligence precluding a recovery for his injuries, where it appears that the car was from 30 to 50 feet distant when he turned in towards the track, and that the motorman increased the speed of the car as he approached the load.</p>

Assumpsit by Charles H. Klumph against Bousfield & Company, a corporation, for goods sold and delivered. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Bill by Inez B. Grenell against the Detroit Gas Company and others to establish a trust in the property of the Michigan Gas Company, transferred by it to the defendant the Detroit Gas Company, sufficient to satisfy a judgment in favor of complainant. The defendant the Detroit Gas Company appeals from an order overruling its demurrer to the bill.

Bill by Edith A. Allen against Egbert S. Conklin and another, executors of the last will and testament of Richard Low, deceased, Jonah Low, and Peter Van Vleck, for an accounting with the estate, and to establish a lien upon land devised. Defendants Low and Van Vleck appeal from an order overruling their demurrer to the bill.

Case by the Iron Duke Mine against Frederick Braastad for wrongfully depriving plaintiff of its lien for royalties under a mining lease. From a judgment for plaintiff on verdict directed by the court, defendant brings error. The declaration contains two counts,—one for trover, the other in case.

<p>Error to Antrim; Corbett, J.</p> <p>Trover by Max Harris against Henry W. Stewart. From a judgment for plaintiff, defendant brings error.</p>

<p>1. Sale—Tender of Payment—Demand—Replevin.</p> <p>A purchaser of cattle, who had paid a part of the purchase price, met the seller two days after the time set for payment of the balance and for delivery of the cattle, at a place two miles from the place where they then were, and stated to him that he “was after the cattle, and had the money to pay for them.” The seller paid no attention to the statement. Held, that this did not constitute such a demand and tender as would entitle the purchaser to maintain replevin.</p> <p>2. Same—Waiver—What Constitutes.</p> <p>The return by the seller of cattle of money paid upon the purchase price, and a subsequent statement that he does not own the property, and that the sale must be declared off, do not establish the fact that demand and tender of the balance of the purchase price would be unavailing, so as to justify the purchaser in treating them as waived.</p>

Bill by Michael F. Griffin against Thomas Griffin for a partnership accounting. Defendant filed a cross-bill, making Gertrude T. Griffin, complainant’s wife, a party defendant. From an order overruling her demurrer to the cross-bill, Gertrude T. Griffin appeals.

Bill by Sarah O. Savidge to enjoin the village of Spring Lake and its officers from expending money in the construction of waterworks. From a decree for complainant, defendants appeal. The object of this suit is to permanently enjoin the defendants from expending money in the erection of waterworks for the defendant village.

Case by Samuel B. Bennett against Harriet A. Butterfield for personal injuries. From a judgment for defendant, plaintiff brings error. Defendant was a dealer in wall paper, other kinds of paper, and stationery. She occupied the ground floor, the basement, and the fifth floor of a store 120 feet long and 40 feet wide. The ground floor was her salesroom, and the fifth floor her storeroom, where she kept duplicate and surplus stocks of goods..

Bill by John S. Farr and others against the city of Grand Rapids and its officers to restrain the issuance of bonds for the erection of an electric light plant. From an order overruling a demurrer to the bill, defendants appeal. The purpose of this suit is to restrain the defendants from issuing bonds to the amount of $150,000 for the erection of an electric light plant.

Ejectment by John D. Mersereau against August C. Miller and others. From a judgment for plaintiff on verdict directed by the court, defendants bring error.

Assumpsit by Michael B. Cronin and Thomas Cronin, for the use and benefit of Milton M. Bose, against the Fire Association of Philadelphia, on a policy of insurance. From a judgment for plaintiffs on verdict directed by the court, defendant brings error.

Case made from Clare; Dodds, J. Assumpsit by the Grasser & Brand Brewing Company against Jay R. Rogers and Alfred J. Doherty, as surety, upon a contract for the purchase of goods. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

<p>Trespass—Possession—Evidence.</p> <p>In an action of trespass qu. cl., it conclusively appeared that defendant had made use of the land for farming purposes for several years, that it lay on his side of the fence built by him to mark the boundary line, and that plaintiff acquired his alleged possession by breaking through the fence, and was immediately ejected by defendant. Held, that the possession of the defendant was established, and that verdict should have been directed in his favor.</p>

John H. Thomas and Charles Cameron, executors of the last will and testament of Francis Lambie, deceased, appealed from an order of the probate court closing the estate and discharging the executors. The order was affirmed in the circuit court, and the executors bring error.

Case by Helen F. Canfield against the city of Jackson for personal injuries. From a judgment for plaintiff, defendant brings error.

<p>Error to Menominee; Stone, J.</p> <p>Trover by Charles T. McElroy against John O’Callaghan and another. From a judgment for plaintiff, defendant O’Callaghan brings error.</p>

Bill by Adolphus Patnode against Solomon Darveau and the Alpena County Savings Bank to declare a deed a mortgage, and to redeem. From a decree for complainant, defendants appeal.

Bill by Fritz C. Jehle against Harry A. Brooks, impleaded with Henry Principaal and Mary Brooks, to foreclose a mortgage. Defendant Harry A. Brooks appeals from an order awarding an execution for a deficiency.

Case by Louisa B. Weiser against Patrick Welch, a saloonist, and Herbert Babcock and Andrew Haberstumpf, his bondsmen, under the civil-damage act. From a judgment for plaintiff, defendants bring error.

Assumpsit by John H. Hamilton against the Park & McKay Company to recover royalties due under a contract for the manufacture and sale of a certain device. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Mandamus by Fred A. Maynard, Attorney General, on the relation of De Witt H. Moreland, to compel the common council of the city of Detroit to call an election to fill a vacancy in the office of mayor.</p>

Bill by Fanny E. Hebard against Andrew J. Reeves and others to enforce an alleged trust. From a decree dismissing the bill, complainant appeals.

Assumpsit by the township of Orion against Ogden S. Axford for unpaid taxes. From a judgment for plaintiff, defendant brings error.

Bill by Elbridge G. Studley and another against the Ann Arbor Savings Bank, the Crane Manufacturing Company, and others, in aid of execution. From a decree dismissing the bill, complainants appeal.

<p>1. Second Appeal—Review.</p> <p>A ruling on appeal becomes the law of the case to govern a new trial, and is not reviewable on a second appeal.</p> <p>2. Trover—Demand—Waiver.</p> <p>An attorney who, having in his hands money intrusted to him by his client to be returned on demand, notifies her that she is indebted to him for professional services in an amount exceeding the sum in his possession, cannot complain that a suit for the conversion of the fund is premature for want of a formal demand.</p>

Bill by Ari E. Woodruff against Anna Tilman to enforce an alleged trust in the proceeds of a certificate of insurance. From a decree dismissing the bill, complainant appeals. February 25, 1888, one John J. Tilman borrowed of one Charles Reh $150. Tilman was a member of the Ancient Order of United Workmen, in which he held a beneficiary certificate of $2,000.

, presiding. John Smith and William French were convicted of forgery, and sentenced to imprisonment for four years in the state prison at Jackson.

Exceptions before judgment from Genesee; Wisner, J. William T. Everts was convicted of selling intoxicating liquors without having given a bond.

<p>1. Accident Insurance — Hazardous Occupation—Incidental Employment.</p> <p>A provision in an accident policy that it shall be void as to all accidents occurring to the insured when “engaged in any profession, employment, or exposure ” not rated as preferred does not apply to the casual performance of an act pertaining to an excepted risk, if in the particular case it pertains incidentally to the regular employment of the insured.</p> <p>2. Same—Operation of Buzz-Saw—Question for Jury.</p> <p>A bank cashier cannot be said, as a matter of law, to have been engaged in an exposure not incident to his employment, while operating a buzz-saw in sawing a board to be used in the bank. Grant, J., dissenting.</p> <p>3. Same—Unnecessary Danger—Voluntary Exposure.</p> <p>Whether he thereby “ voluntarily exposed himself to unnecessary danger” is also for the jury to determine.</p> <p>4. Same—Burden of Proof.</p> <p>An accident insurance company has the burden, in an action upon a policy, of proving that an injury to plaintiff, shown to be the result of an accident, was within some exception named in the policy.</p> <p>5. Appeal—Instructions—Inconsistency.</p> <p>A party cannot complain of an inconsistency in a charge due to the fact that the court gave an instruction preferred by him which was more favorable to him than the law justified.</p>

<p>1. Criminal Law—"Witnesses—Duty of Prosecutor.</p> <p>The rule requiring the people, in a criminal prosecution, to call as witnesses those who were present when the offense was committed, does not extend to persons who participated in the crime.</p> <p>3. Same—Accomplices—Cross Examination.</p> <p>A witness who testifies upon his direct examination as to statements made by him while under arrest for participating in the crime of which respondent is accused may be cross-examined by the prosecutor with respect to such statements,</p> <p>3. Same—Indorsing Witnesses on Information.</p> <p>The prosecuting attorney may be allowed, on a proper showing, to indorse the name of a witness on an information after the commencement of the trial.</p> <p>4. Appeal—Remarks of Counsel—Incomplete Record.</p> <p>Error assigned upon a statement of the prosecutor in his argument to the jury cannot be considered where the record fails to disclose what was said.</p>

Bill by Oliver B. Campbell and others against Frank Remaly and others in aid of execution. From a decree for complainants, defendants appeal.

Assumpsit by William Brighton against the Lake Shore & Michigan Southern Railway Company for the breach of a contract of employment. From a judgment for plaintiff, defendant brings error.

<p>1. Homestead—Validity of Lease—Wife’s Signature.</p> <p>A lease of a homestead, the title to which is in the husband, is valid if signed by both husband and wife, although the husband only is named in the body of the instrument.</p> <p>2 Trial—Omission to Show Material Fact—How Cured.</p> <p>Plaintiff’s omission to establish, by his evidence, certain facts material to his case, will not affect his right to recover, if the elements lacking are supplied by the evidence of the defendant.</p> <p>3. Summary Proceedings—Question of Title—Jurisdiction.</p> <p>A circuit court commissioner is not ousted of jurisdiction of a summary proceeding to recover possession of real estate by defendant’s mere assertion that the title to the land is in question.</p> <p>4. Landlord and Tenant—Parol Lease—Statute of Frauds— Tenancy at Will.</p> <p>A tenant whose possession is based upon a parol lease for an indefinite term is, in the absence of a reservation of rent due at stated intervals, or of other circumstances from which an intention to create a tenancy from year to year may fairly be inferred, a tenant at will. So held where a life tenant verbally leased the premises for the full term of his life, in. consideration of an agreement for his support.</p>

, presiding. Assumpsit by the Home Savings Bank against John P. McLaren upon a promissory note. From a judgment for plaintiff, defendant brings error.

<p>Error to Alpena; Kelley, J.</p> <p>Case by William Finley against John A. Widner for slander. From a judgment for defendant, plaintiff brings error.</p>

Bill by Esther Hill against Eugene Bateman and others to set-aside certain deeds, and to procure the execution of a new deed to complainant. From a decree dismissing; the bill, complainant appeals.

Bill by Ratie Eldred against Henry A. Shaw and others to construe a will. From a decree for complainant, defendants appeal. Marvil Shaw executed his last will and testament May 5, 1875. He died September 17, 1876. At the time of the execution of the will, complainant, his grandson by testator’s daughter, was about a year old. His mother was dead. Mr. Shaw was possessed of a large estate. He left as his legatees three sons, two daughters, and his grandson, the complainant.

Assumpsit by Paul Wenzel against Cyrus Johnston for work and labor performed. From a judgment for plaintiff, defendant brings error.

Exceptions before judgment from superior court of Grand Rapids; Burlingame, J. George Williams was convicted of violating an ordinance relative to disorderly persons.

Exceptions before judgment from Calhoun; Smith, J. Orin J. Frey was convicted of threatening to accuse another of crime, with intent to extort money.

<p>1. Evidence—Court Files—Attachment.</p> <p>The flies in an attachment suit are admissible in evidence in trover against the attaching officer, although no affidavit is attached to the original writ, where such affidavit is shown to have been attached at the time of the levy.</p> <p>2. Fraudulent Conveyances—Evidence.</p> <p>Evidence as to the source from which a wife obtained the money paid for real estate conveyed to her is admissible upon an issue whether a subsequent transfer, of personalty from the husband to the wife was fraudulent as to his creditors.</p> <p>S. Evidence—Conspiracy to Defraud.</p> <p>Where some testimony has been introduced tending to show a conspiracy to defraud, evidence of statements made by one of the conspirators, in furtherance of the common purpose, is admissible against the others.</p>

Assumpsit by Samuel A. Sloman and another against the Mercantile Credit Guarantee Company of New York on a policy of insurance. From a judgment for plaintiffs, defendant brings error.

<p>Mortgages—Judicial Sale—Purchase by Mortgagor.</p> <p>A mortgage given by an execution debtor pending a bill by him to set aside an execution sale of the land mortgaged, upon which bill a decree is entered giving the purchaser at such sale a lien for improvements and disbursements, to be paid by the debtor, the land to be sold in case of default, is valid as against the debtor and a grantee from him with notice, where the land is sold under such decree, and purchased by a third person for the benefit of such debtor.</p>

<p>Mandamus by the Michigan Mutual Fire Insurance Company of Lansing to compel Joseph W. Donovan, circuit judge of Wayne county, to dismiss a suit for want of proper service.</p>

<p>Appeal from Kent; Grove, J.</p> <p>Bill by Margaret Dooley against Patrick Dooley and Abner Case to restrain the foreclosure of a mortgage. From a decree for complainant, defendant Case appeals.</p>

, presiding. Bill by Johnson McKelvey, an incompetent, by George O. Dean, his guardian, against Kate McKelvey, to restrain the prosecution of an action in ejectment. From a decree for complainant, defendant appeals.

Bill by Peter Lariverre and another, infants, by their next friend, Joseph Lariverre, against Hoel D. Rains and another, to set aside certain conveyances as a cloud on complainants’ title. From a decree dismissing the bill, complainants appeal.

Mandamus by Walter C. Clark to compel the mayor, recorder, and common council of West Bay City to award the contract for the city printing to relator. From an order granting the writ, respondents bring certiorari.

<p>1. Mortgages—Foreclosure—Amount op Decree.</p> <p>The amount paid by á mortgagee for taxes, his reasonable attorney fees, and compensation for his services, are properly included in a decree of foreclosure, where the mortgage expressly provides for such charges.</p> <p>3. Same—Marshaling op Securities.</p> <p>A mortgagee cannot be required by judgment creditors of the mortgagor, who have levied upon all of the property covered by the mortgage, to resort first to a subsequent security taken by him for the same indebtedness on land situated in a foreign country, where it is not made to appear that he could do so without prejudice to his own rights.</p>

Woodruff Parmelee was convicted of murder in the first degree. The respondent was convicted of the murder of one Julia Curtis, an unmarried woman, aged 22 years. Her father was a farmer, and she lived at home. She was rather slender, weighing about 100 pounds. The respondent was also a farmer, living about a mile north of the Curtis home, twice married, and twice divorced.

<p>Error to Gogebic; Haire, J.</p> <p>Mike Savant was convicted of manslaughter, and sentenced to imprisonment for 10 years in the state prison at Marquette.</p>

Cross appeals from Wayne; Donovan, J. Bill by Marilla B. Carmichael against Ada M. Lathrop and Emily B. Lloyd to charge the defendants with the value of certain property alleged to have been conveyed to them in partial satisfaction of their legacies under the will of Henry P. Pulling, deceased. From the decree rendered, all parties appeal.

Proceedings by the city of Detroit to open and extend Leland street across the tracks of the Detroit, Grand Haven & Milwaukee Railway Company. From an order confirming the award of damages, defendant appeals.

Assumpsit by Archibald P. McKinnon and Thomas W. Burrell against Samuel G. M. Gates to recover commissions on the sale of logs. There was a judgment for plaintiffs, and defendant brought error. McKinnon died pending the appeal, and the cause was continued by Burrell as survivor.

Mandamus by Alfred Wolcott, prosecuting attorney of Kent county, to compel Edwin A. Burlingame, judge of the superior court of Grand Rapids, to vacate an order quashing an information.

Mandamus by the city of Detroit to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate an order striking from a plea a notice of special defense.

<p>Cross appeals from Alpena; Cobb, J., presiding.</p> <p>Bill by Waldo M. Johnson and Richard O. Wheeler against David Bratton and others to foreclose a mortgage. From the decree rendered, all parties appeal.</p>

Assumpsit by Maxwell M. Fisher against Hovhannes G. Nergararian for rent. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Bill by Martin Kallander and another against Charles Neidhold and others to restrain the enforcement of a judgment. From a decree dismissing the bill, complainants appeal.

, presiding. Bill by George Finley against Henry D. Dubay and others, administrators of the estate of William Watson, deceased, to foreclose a mortgage. From a decree for complainant, defendants appeal.

<p>1. False Imprisonment—Warrant Fair on its Face.</p> <p>An action for false imprisonment will not lie where the detention was by virtue of a warrant issued by a court having jurisdiction of the subject-matter, and regular on its face.</p> <p>2. Criminal Law—Obstructing Public Officer.</p> <p>A combination of two or more persons for the purpose of obstructing the mayor of a city in the exercise of his right to examine, in his official capacity, the books of a city office, is indictable as a conspiracy at the common law.</p> <p>3. Malicious Prosecution—Public Officers—Evidence.</p> <p>Whether the mayor of a city was acting officially or in his private capacity in attempting to examine the books in a city office is a material inquiry in an action for malicious prosecution based upon the commencement by him of criminal proceedings for an alleged conspiracy to obstruct him in the exercise of his right, and evidence tending to show that he was merely seeking to aid a newspaper reporter in obtaining access to the records is relevant to this issue.</p> <p>4. Trial—Instructions.</p> <p>The refusal of instructions which correctly state the law as to an issue which would not be material otherwise may constitute error if the court gives other instructions on that issue which may mislead the jury.</p>

Mandamus by Peter Zoltowski and others to compel. Fitzwilliam H. Chambers, judge of the recorder’s court of Detroit, to vacate an order granting a new trial in condemnation proceedings.

The Peninsular Savings Bank presented two promissory notes as a claim against the estate of J. Huff Jones, deceased. They were allowed by the commissioners, and the executors, Robert Hosie and another, took a separate appeal as to each of the notes to the circuit court. From a judgment for defendants on verdict directed by the court, claimant brings error.

<p>Judgment—Collateral Attack.</p> <p>A judgment which on its face shows jurisdiction imports absolute verity when attacked collaterally, and cannot be impeached by parol testimony that the court had no jurisdiction of the party against whom it was rendered.</p>

<p>1. Slander—Evidence—Damages.</p> <p>The testimony of third persons, offered in mitigation of damages in an action for. slander, that they had heard a damaging report concerning plaintiff some years before, upon a repetition of which the action is based, is incompetent, where it appears that defendant’s information was acquired from an entirely different source.</p> <p>2. Same—Privilege.</p> <p>Privilege does not constitute a defense to an action for the,reiteration of an alleged slander after the occasion for the privilege has ceased.</p>

Case by John Garrity, administrator of the estate of Hugh Garrity, deceased, against the Detroit Citizens’ Street Railway Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Cross appeals from Genesee; Smith (George W.), J., presiding. Bill by Amzi Beardslee and others against the Citizens’ Commercial & Savings Bank to compel the discharge of certain mortgages. Defendant filed an answer in the nature of a cross-bill, praying foreclosure of its lien. From the decree rendered, all parties appeal.

Cross appeals from Wayne; Carpenter, J. Bill by William C. Bennett against Edward J. Hickey and others to rescind a land contract, and to recover the moneys paid thereon. Defendants filed an answer in the nature of a cross-bill, praying for a foreclosure of the contract. From the decree rendered, all parties appeal.

<p>Mandamus by Bryant Walker, administrator, etc., to compel Willard M. Lillibridge, circuit judge of Wayne county, to vacate an order restraining a foreclosure sale.</p>

<p>Error to St. Clair; Vance, J.</p> <p>Replevin by Michael Hill, Jr., and others, against George E. Mallory. From a judgment for plaintiffs, defendant brings error.</p>

Bill by Mary A. P. Proctor against Addie L. Plumer, the Flint & Pere Marquette Railroad Company, and others, to foreclose a land contract. From a decree dismissing the bill on demurrer, complainant appeals.

<p>Mandamus by the Preferred Masonic Mutual Life Insurance Company to compel Theron F. Giddings, state commissioner of insurance, to approve a certain form of policy.</p>

Bill by Nathaniel White and others, as trustees and agents of the Methodist Episcopal Church, to restrain Samuel Rice, the Pleasant Valley Congregation of the Brethren Church, and others, from interfering with the use by complainants of a certain church building for religious services. Defendant the Pleasant Valley Congregation appeals from an order overruling its demurrer to the bill.

, presiding. Assumpsit by the Bank of Saginaw against Frank D. Pierson, as director of the Williams Milling Company, upon a promissory note. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by Thomas Swan against Charles Thurman for goods sold and delivered. From a judgment for plaintiff, defendant brings error.

Cross appeals from Jackson; Peck, J. Bill by Don E. Palmer, trustee, against William C. Sharp and John C. Sharp, executor of the estate of John W. Sharp, deceased, to set aside a mortgage as a cloud on complainant’s title. From the decree rendered, all parties appeal.

<p>Error to Saginaw; Wilber, J.,</p> <p>Assumpsit by Henry Turner against the Fidelity & Casualty Company of New York on a policy of accident insurance. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by Reuben Hatch and another against Peter Reid and John B. Hughes upon a promissory note. From a judgment for plaintiffs, defendant Reid brings error.

<p>1. Bills and Notes—Liability of Indorser—Renewal—Fraud.</p> <p>The holder of a note does not lose his right to attack as fraudulent a conveyance of land by one of the indorsers by subsequently accepting a renewal of the note with the same indorsement.</p> <p>2. Fraudulent Conveyances—Husband and Wife.</p> <p>A deed of real property, executed by a husband to Ms wife with a view to protecting himself against the contmgency of failure in his business, and ptu-posely witMield from record until, the risks of such business having increased, his assets, aside from the premises so conveyed, are less than his liabilities, is void as against creditors, even though the grantor was solvent at the time of its execution.</p>

Bill by the Keweenaw Association, Limited, against John Friedrich and others for the specific performance of a land contract. From a decree dismissing the bill, complainant appeals. Complainant was the owner of the S. E. ¼ of S. W. ¼ of section 19, town 40 N., range 30 W., in the county of Dickinson.

<p>1. Trial—Terms of Lease—Evidence—Question for Jury.</p> <p>A party cannot complain of the action of the court in allowing the jury to determine the terms of a written lease from oral evidence, where he permitted such evidence to be introduced without objection, but caused the instrument to be excluded.</p> <p>3. Landlord and Tenant—Lease of Stairway—Recovery of Rent.</p> <p>One who lets the upper rooms of his store building under a lease which gives to the tenant full control of an adjacent stairway cannot recover rent of the adjoining proprietor for the use of the stairway during the continuance of the lease.</p>

Assumpsit by Arthur Barnard against Addison T. Brown and another to recover the balance due upon a land contract. From a judgment for plaintiff, defendants bring error.

Assumpsit by Mary Grady against John Sullivan and others upon a contract for the sale of gravel. From a judgment for plaintiff, defendants bring error.

Assmnpsit by James F. Brooks against Don J. Leathers for commissions on the sale of real estate. From a judgment for plaintiff, defendant brings error.

Mandamus by Allan H. Frazer, prosecuting attorney of Wayne county, to compel William W. Chapin, judge of the recorder’s court of Detroit, to vacate an order granting a new trial.

<p>1. Evidence—Promise to Pay.</p> <p>Evidence that defendant in an action to recover a bill for printing looked over the plaintiffs books containing the items embraced in the bill of particulars, and agreed on the amount due, and promised to pay it, is admissible, although no mention of an account stated is made in the bill of particulars, where defendant claims that the printing was done for and credit extended to another, and not to himself.</p> <p>2. Same—Books oe Account—Foundation for Admission.</p> <p>The testimony of a witness that he made entries in an account book as original entries taken from the job or order book, and that he knew they were correct, is sufficient to admit the book in behalf of the one for whom the entries were made,.—especially where there is evidence that the adverse party had agreed to settle the account as contained in such entries.</p>

, presiding. Ejectment by Parmelia Downing and others against Henry Birney and another. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.

Bill by Hiram E. Oliver against Fred C. Olmstead and another to restrain the cutting and removal of ice. From a decree dismissing the bill, complainant appeals.

Mandamus by Henry A. Krolik and others to compel Norman W. Haire, presiding circuit judge of Wayne county, to vacate an order refusing to dissolve an injunction.

Assumpsit by the W. H. H. Peck Company against Stewart B. Gordon and another for goods sold and delivered. From a judgment for defendants, plaintiff brings error.

Mandamus by John Maier, by William T. Dust, his guardian, to compel Willard M. Lillibridge, circuit judge of Wayne county, to set aside an order entered by him in a proceeding to annul a marriage, granting a trial by jury of the issue as to complainant’s mental competency.

<p>Lire Insurance—Mutual Companies—Form or Policy.</p> <p>A mutual life insurance company organized under Act No. 187, Pub. Acts 1887, as amended by Act No. 58, Pub. Acts 1895, providing that any such corporation may provide in its policy for the payment, at stated periods, of premiums or assessments for the purpose of accumulating and maintaining a mortuary, an emergency, and a reserve fund, and that the members may receive the benefit of any surplus not needed by the corporation, is authorized, where its articles of association are framed with respect thereto, to write whole-life policies, term insurance, advance payment insurance, and insurance upon the joint lives of two or more persons.</p>

<p>1. Elections—Canvassing Board—Mandamus.</p> <p>The circuit court may, in its discretion, entertain an application for mandamus requiring the common council, as a board of canvassers, to canvass the returns of votes for alderman, and issue a certificate to the relator, without a previous application by the relator to the board for such certificate, where it is convinced that such request would not have availed.</p> <p>2. Same—Recount—Estoppel.</p> <p>A candidate whose election is shown by the face of the returns to the canvassing board is not estopped to question the authority of the board under Act No. 208, Pub. Acts 1887, to recount the votes in certain precincts upon the petition of his rival, because he petitioned for a like recount in some of the other precincts.</p> <p>3. Same—Office of Alderman..</p> <p>Act No. 208, Pub. Acts 1887, providing for a recount in certain cases of the votes cast at any election, on petition of the candidate aggrieved, does not apply to a contest over the office of alderman of the city of Grand Rapids, since the common council of said city is by charter made the judge of the election and qualification of its own members.</p> <p>4. Same—Construction of Charter.</p> <p>Title 2, § 20, of the Grand Rapids charter (Act No. 282, Local Acts 1877), which provides that, on the Thursday following a municipal election, the council of the preceding year shall convene, and determine and certify the persons elected to the several offices, must be construed with title 10, § 4, declaring the common council to be the judge of the election and qualification ‘of its own members, and held not to relate to the office of alderman.</p>

Case by William D. Voigt, administrator of the estate of Charles Lindow, deceased, against the Michigan Peninsular Car Company, to recover damages for the death of plaintiff’s intestate, alleged to have been caused by defendant’s negligence. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Case by Charles W. Shriver against William Worth Bean for assault and battery. From a judgment for defendant, plaintiff brings error. This is an action to recover damages for assault and battery. Plaintiff was an alderman of the city of Benton Harbor, and a member of the street committee.

Bill by Alfred Mosher and Spencer O. Fisher against the Lansing Lumber Company and the Michigan Trust Company, to compel the latter company, as trustee, to apply the proceeds of certain insurance policies to the payment of an amount due complainants from the Lansing Lumber Company under certain land contracts, and to foreclose said contracts. From a decree for complainants, defendant the Michigan Trust Company appeals.

<p>Appeal—Vendor and Purchaser—Fraud.</p> <p>A decree dismissing, as not sustained by the proofs, a bill to correct the descriptions in a land contract, based upon the alleged fraud of the defendant in omitting therefrom certain lands agreed to be included in the sale, was affirmed.</p>

Clair; Eldredge, J., presiding. Case by Mary Ann Heddle against the City Electric Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.

<p>1. Pleading—Sufficiency of Declaration—Demurrer.</p> <p>Where defendant’s duty and the breach thereof are clearly to be implied from the facts alleged in a declaration for personal injuries, the failure of specific averments in that regard can be taken advantage of only by demurrer.</p> <p>3. Torts—Obstructing Tramway—Negligence.</p> <p>The owner of a vessel who knows of the existence of a tramway, over which cars are run day and night, owes a duty to one who is rightfully making use thereof, so to moor his vessel to the dock as not to obstruct such way; and the stretching of a hawser across the track for the purpose of attaching it to a spile on the opposite side, whereby the driver of a tramcar is injured, constitutes actionable negligence.</p> <p>3. Same—Contract Relations.</p> <p>The fact that the person injured was the servant of the dock owner, having himself no contract relations with the vessel-man, does not affect the latter’s liability.</p> <p>4. Same—Defenses—Reasonable Care.</p> <p>That one who obstructed a tramway at night, and thereby caused the injury of the driver of a tramcar, believed that the track was used only in the daytime, will not relieve him from liability for his negligence, it being his duty, before obstructing the way, to take proper precautions to ascertain whether or not it was in use.</p>

, presiding. Assumpsit by John Afield against the city of Detroit to recover for the construction of a sewer. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Proceedings under the log-lien law by Robert Newbauer against Albert Newbauer and Charles A. Spies. From a judgment for defendant Spies, plaintiff brings error.

<p>Error to Bay; Maxwell, J.</p> <p>Garnishment proceedings by the Old Second National Bank of Bay City against Charles S. Williams, as garnishee of David M. Estey and James H. Calkins. From a judgment for plaintiff, defendant brings error.</p>

Edward Huntley, William Curley, and William Boot were convicted of assault with intent to do great bodily harm less than murder, and sentenced to imprisonment for 10 years in the state prison at Jackson.

<p>Error to Kent; Grove, J.</p> <p>Replevin by Joseph Joseph and another against Max Braudy. From the judgment rendered, all parties bring error.</p>

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

Assumpsit by Albert E. French against Charles Weise for work and labor performed. From a judgment for plaintiff on verdict directed by the court, defendant brings error. Plaintiff brought suit in justice’s court, was defeated, and took a general appeal to the circuit court. The attorney for plaintiff entered his appearance in the circuit court, and, before any appearance by defendant, caused an order to be entered discontinuing the suit.

Mandamus by the city of Detroit to compel William W. Chapin, judge of the recorder’s court of Detroit, to vacate an order quashing condemnation proceedings. The relator instituted proceedings under Act No. 467, Local Acts 1895, to open a street for public use, and to condemn private lands for that purpose. The respondent quashed the proceedings, holding the act to be unconstitutional.

Bill by John B. Matthews and others against Mathilda Forslund and others to enforce a trust. From a decree for complainants, defendants appeal.

Assumpsit by Henry Whelpley against Clarissa S. Stoughton on a promissory note. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Taxes—Sale oe Land—Withholding Deed.</p> <p>Under Act No. 154, Pub. Acts 1895, § 98, subd. 4, authorizing the auditor general to withhold a conveyance of lands sold for delinquent taxes if he discovers that the proper officer has given a certificate that no taxes were charged against the land, a deed is properly withheld by the auditor where it appears that, three months before the sale, the owner of the land was given by the county treasurer what purported to be a statement of all taxes due upon his property in the city wherein the land in question was located, and that the owner thereupon paid the entire amount so claimed.</p>

Assumpsit by Robert D. Crawford against Daniel Byrnes for commissions on the sale of lands. From a judgment for plaintiff, defendant brings error. Plaintiff brought suit in justice’s court to recover a commission on the sale of defendant’s farm.

Assumpsit by the township of Bangor against the Smith Transportation Company to collect a tax assessed on personal property. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

, presiding. Case by Kittie M. Lammiman against the Detroit Citizens’ Street Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.

Assumpsit by the People of the State of Michigan, for the use and benefit of Frank Smith and Anthony H. Reynolds, against. Henry Collins, as principal, and John C. McDonald, Charles P. Collins, and Henry Houghten, as sureties, upon a statutory bond. From a judgment for plaintiffs on verdict directed by the court, defendant sureties bring error.

Bill by Jacob Boeder against Frederick Niedermeier and Charles Mainzinger to set aside a deed, alleged to have been made in fraud of complainant’s right to contribution. From a decree dismissing the bill, complainant appeals.

Assumpsit by John H. Rauch against Mathias E. Seip to recover an alleged overpayment of interest on a mortgage. From a judgment for defendant, plaintiff brings error. This case originated in justice’s court, where plaintiff had judgment for $4.40, and, on appeal to the circuit court, was tried before the court without a jury, resulting in a judgment in favor of defendant for costs.

Assumpsit by Gertrude Pfeiffer against Henry Michelsen for services as nurse. From a judgment for plaintiff, defendant brings error. The defendant had boarded with the plaintiff since the year 1886. At first he paid $5 per week, then $7. The defendant was adjudged incompetent, and a guardian appointed, July, 1894. Plaintiff brought suit to recover for services as nurse from June 1, 1891, to November 13, 1894. She claimed $15 per week.

Case by William Hennig against the Globe Foundry Company for personal injuries. From a judgment for plaintiff, defendant brings error. The plaintiff was an employé of the defendant. Connected with the foundry was a cupola. A steep incline led from the ground to a platform near the top of the cupola. On this incline were two tracks of iron rails, over which pig and scrap iron and coal were conveyed to the platform in a car about five feet long and three feet wide.

Assumpsit by Patrick E. Connor against Timothy Hurley for the breach of a contract of employment. From a judgment for plaintiff, defendant brings error.

Assumpsit by William R. Stephen and Henry Mason against Arthur Yeomans and Frederick H. Yeomans for goods sold and delivered. From a judgment for plaintiffs, defendants bring error.

<p>Error to Baraga; Hubbell, J.</p> <p>Trover by William H. Laird against William Coach. From a judgment for defendant, plaintiff brings error.</p>

Assumpsit by John Forbes, Jr., and Henry R. Scott against William E. Forbes upon a contract for the sale of lands. From a judgment for plaintiffs, defendant brings error. On January 7, 1878, plaintiffs, being the owners. of some land in the State of Missouri, executed a deed of the same to the defendant, the consideration expressed therein being $2,000.

, presiding. Case by Bridget Hill against Matilda Hill for alienating the affections of plaintiff’s husband. There was a judgment for plaintiff, and defendant brought error. On motion to dismiss.

Bill by Frank F. Liska and another against Frank T. Lodge for the specific performance of a land contract. From a decree for complainants, defendant appeals. Defendant owned the legal title to a subdivision in the village of Highland Park, Wayne county, which had been platted, and consisted of 248 lots. The property was in fact owned by 14 persons, each of whom owned an undivided one-fourteenth interest. Among them were Shelley & Simpson, a firm of real-estate agents.

Debt by Lewis Hoyt against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company to recover the statutory penalty for failure to discharge plaintiff at his destination. From a judgment for plaintiff, defendant brings error. Plaintiff sued to recover a penalty of $100, under 1 How. Stat. § 3324.

Assumpsit by Charles J. Lowrie. against James Gourlay and others for an alleged breach of a land contract. From a judgment for plaintiff, defendants bring error. The parties to this suit entered into a written contract December 6, 1889, by which the defendants agreed to sell to plaintiff certain parcels of land for $700,—$240 on delivery of the contract, and the remainder in three semiannual payments, with interest.

John Piper was convicted of murder in the second degree, and sentenced to life imprisonment in the state prison at Jackson.

Sadie Wells was convicted of keeping a house of ill fame, and sentenced to imprisonment for two years in the Detroit House of Correction.

<p>1. Pleading—Declaration on Contract—Statute op Frauds.</p> <p>An averment in a declaration that a contract was made between the parties to the suit imports a valid contract, and renders proof admissible to show that the contract was in writing, when essential to its validity under the statute of frauds.</p> <p>2. Contracts—Mutuality—Consideration.</p> <p>An employer’s agreement, in consideration of an employé’s compromising a claim for personal injuries, to retain the latter in his service for life, or as long as he is able to do the work required, is enforceable, although the employé does not bind himself to continue in the employment.1</p> <p>3. Same—Suspension of Agreement—Reservation of Rights.</p> <p>Such a contract is not terminated by the employé’s resigning to accept another position, which he holds for a few months, and, becoming dissatisfied, returns to his original employment, where it was agreed by the employer’s superintendent, with whom the employé was required to deal, before the resignation was accepted, that, if he did not like the new place, he could have his old one again upon the same conditions that existed before he left it.</p> <p>4. Same—Authority of Agent.</p> <p>Under such circumstances, the authority of the superintendent to make a new contract upon the same terms as the original is not involved, his engagement being equivalent to granting the employé an indefinite leave of absence, the latter reserving his rights under the original contract.</p> <p>5. Same—Damages.</p> <p>The measure of damages for the breach of an agreement to employ a person for life, or during his ability to work, is the amount that he would have earned up to the time of trial at the contract price, and the present worth of what he would be able to earn in the future, so long as he would, in the ordinary course of affairs, be able to perform the service, less any amount that he would be able to earn in other employment.</p>

Mandamus by John E. Clark to compel the board of education of the city of Detroit to recognize him as a member of such board. From an order granting the writ, respondent brings certiorari. The relator tendered to the mayor of the city of Detroit his resignation from the office of “member of the board of education,” to take effect on November 15, 1896, and gave notice to the board of his action.

Assumpsit by George S. Boltwood, assignee of George W. Longwell, administrator of the estate of George E. Breck, deceased, against Jacob L. Miller, for the purchase price of certain sheep. From a judgment for defendant, plaintiff brings error.

<p>1. Mortgages—Authority to Collect.</p> <p>A letter from a mortgagee’s agent, directing a firm that has looked after the collection of the interest upon the mortgage to call in the loan, or foreclose, if certain interest moneys are not paid at once, does not, where the interest is promptly paid, authorize a mortgage company subsequently incorporated, and controlled by the individuals who composed the firm, to receive payment of the principal.</p> <p>2. Same—Assignment—Want oe Consideration.</p> <p>A grantee who assumes a mortgage upon the property conveyed cannot set up against an assignee of the mortgage that the assignment was without consideration.</p> <p>3. Same—Fraud—Estoppel.</p> <p>An assignee of a mortgage is not estopped to foreclose by the act of his agent in withholding the assignment from record for the purpose of escaping taxation.</p>

Assumpsit by Margaret L. Klock, executrix of the estate of Monroe Klock, deceased, for the use of Burnham, Stoepel & Co., against Albert Pack, impleaded with C. W. Richardson and James McNamara, survivor of himself and John C. Shields, deceased, upon an indemnity bond. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Bill by Rose Sullivan against Michael Sullivan and Mollie Ferry for a divorce, and to declare a transfer of real estate to defendant Ferry fraudulent as to complainant. From the decree rendered, complainant appeals. Complainant and defendant Michael Sullivan were married July 11, 1892. She was about 50 years old, and he 60. He was a widower, and had one child, the defendant Mollie Ferry.

Bill by Hannah Stille and others, infants, by Sarah Tolan, their next friend, against Joseph Hess, to set aside a real-estate mortgage. From a decree dismissing the bill on demurrer, complainants appeal.

Case by William Drewyour against John H. Merrell and another for the unlawful detention of plaintiff’s horse. From a judgment for plaintiff on verdict directed by the court, defendants bring error.

Assumpsit by Jacob L. Crowl against David A. Goodenberger for goods sold and delivered. From a judgment for plaintiff, defendant brings error.

, presiding. Case by Samuel Thompson against Hiram D. Stoddard for false imprisonment. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by Charles J. Case, drain commissioner of Genesee county, against William Telling and others, to recover the costs and expenses incurred in certain drain proceedings instituted on defendants’ application, and dismissed on certiorari in the circuit court. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

<p>1. Actions—Fraudulent Purchase—Rights of Seller,</p> <p>Where fraudulent purchases are made on different occasions, each constitutes a distinct and separate act of fraud, for which the seller is entitled to maintain a separate action.</p> <p>2. Same—Replevin and Trover—Res Judicata.</p> <p>A recovery in replevin of that part of goods fraudulently purchased which is in the buyer’s possession at the time of the issuance of the writ does not bar an action of trover for the remainder of the goods.</p> <p>3. Same,</p> <p>A plaintiff in replevin cannot recover for property known by him to be out of defendant’s possession, or out of existence, when the writ was sued out.</p>

Clair; Vance, J. Bill by Belmont D. Bogart, administrator of the estate of Adam W. Bogart, deceased, against Abram Phillips, Bostwick R. Noble, and John Holden, to foreclose a mortgage. Foreclosure was awarded, but a personal decree against the defendant Noble was refused. Complainant appeals.