Volume 113 — Michigan Reports

Case by Johann Zimmerman against the Detroit Sulphite Fibre Company for personal injuries. From a judgment for plaintiff, defendant brings error. Plaintiff had been for six and a half years employed as a laborer in the defendant’s mill, and had done various kinds of work, including the oiling of machinery. In the mill was a pump situated in a well about four or five feet square, and four feet below the floor.

Case by William Aben against the township of Ecorse for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by John W. Patterson and another against Charles F. Collier, George E. Pomeroy, and others, upon a promissory note. From a judgment for all the defendants except George E. Pomeroy, on verdict directed by the court, plaintiffs bring error.

<p>Appeal from Washtenaw; Kinne, J.</p> <p>Bill by Mathias Rentchler against Milton S. Lawton and others to enforce a mechanic’s lien. From a decree for complainant, defendants appeal.</p>

<p>Error to Muskegon; Russell, J.</p> <p>Replevin by Matilda E. Byrnes against George G. Palmer. From a judgment for plaintiff, defendant brings error.</p>

, presiding. Replevin by Samuel L. Brundage and others against Sumner P. Shelly and others. Prom a judgment for plaintiffs, defendants bring error.

<p>Adverse Possession — Cotenants.</p> <p>To make possession adverse as against a cotenant, notice of the hostile claim must be clearly brought home to him.</p>

Case by George V. Clark against the Michigan Central Railroad Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Case made from Jackson; Peck, J. Assumpsit by John W. Miner, administrator de bonis non of the estate of Isaac C. Quick, deceased, against Mahlon 'H. Raymond, to recover unauthorized payments by the former administrator. Defendant died pending the trial, and the cause was revived in the name of his executrix, Jane E. Raymond. Plaintiff had judgment on verdict directed by the court, and defendant assigns error.

Bill by the Chicago & Northwestern Railway Company against William J. Ellson, treasurer of Onota township, Alger county, to restrain the sale of a quantity of coal under a tax warrant. From a decree dismissing the bill on demurrer, complainant appeals.

Case by Mary E. Monforton, administratrix of the estate of Charles Monforton, deceased, against the Detroit Pressed Brick Company, to recover damages for the death of plaintiff’s intestate, alleged to have been caused by defendant’s negligence. A verdict for plaintiff was vacated by the court, and judgment entered for defendant. Plaintiff brings error.

<p>1. Defective Sidewalks — Evidence—Notice.</p> <p>Under a declaration charging defendant with permitting a sidewalk to become and remain rotten and out of repair, plaintiff may show that the walk had not been rebuilt or repaired for upwards of 20 years.</p> <p>2. Same — Remarks of Court — Province of Jury.</p> <p>For the court to remark in the presence of the jury, upon the trial of a suit for injuries alleged to have been sustained because of a defective sidewalk, that the fact that the walk would spring when walked upon was not, in itself, a defect which would entitle plaintiff to recover, is reversible error; the weight of such evidence being for the jury.</p> <p>3. Same — Notice.</p> <p>Evidence that other portions of the walk, built at the same time as that portion whereon the accident occurred, were out of repair, was admissible on the question of notice.</p>

Replevin by Petér McRae against Samuel Bennett, deputy sheriff of Marquette county. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Case made from Alpena; Kelley, J. Case by Cyrus Hendrick, administrator of the estate of William H. Hendrick, deceased, against the Minor Lumber Company, for the alleged negligent killing of plaintiff’s intestate. A demurrer to the declaration was overruled, and defendant appeals.

, presiding. Nettie L. Donovan presented for probate the last will and testament of Lizzie M. Sherman Bromley, deceased, which was duly allowed, and George E. Bromley and others appealed to the circuit court. From a judgment for proponent, contestants bring error.

Bill by George Rhode against Frank H. Hassler to remove a cloud from title. From a decree dismissing the bill, complainant appeals. In October, 1891, one Mary J. Hopper owned a tract of land situated in the township of Grosse Point, Wayne county, consisting of about 27 acres, and conveyed the same to four parties, of whom one Samuel Lyons was one. They soon after recorded a plat of a portion of this land, laid out in lots.

Assumpsit by Weltky A. Early against the Standard Life & Accident Insurance Company on a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Mandamus by Fred A. Kneeland and another to compel Koscoe D. Dix, auditor general, to issue a tax deed.</p>

Assumpsit by Edward Frohlich against Clara Graulich for goods bargained and sold. From a judgment for plaintiff, defendant brings error.

Assumpsit by Nat E. Degen against the Manistee, Filer City & East Lake Railway Company for the breach of a contract of employment. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Garnishment proceedings in justice’s court by Randolph A. McDougall against John J. Lamb, garnishee of William Mott. A judgment for plaintiff was reversed in the circuit court on certiorari, and plaintiff brings error.

Bill by Anna M. Perkins against Aaron H. Canine to reform a deed. From á decree for complainant, defendant appeals. Complainant, by warranty deed executed February 5, 1894, obtained tbe title to E. ¶ of N. W. \ section' 14, township 4 S., range 6 E. She obtained her title by mesne conveyances from one William W. Wallace, who in 1884 was also the owner of the adjoining land, described as the W. of N. W. ¶ of said section.

Mary Eipper and Julius Nagel presented a claim against the estate of Chris Ered Vogel, deceased, for money alleged to have been held in trust for them. The claim was allowed by the probate judge, acting as commissioner, and Mary E. Benner, administratrix of the estate, appealed to the circuit court. From a judgment disallowing the claim, claimants bring error.

<p>Criminal Law — Offer of Incompetent Proof — Prejudicial Remarks.</p> <p>Upon the trial of a druggist for an unlawful sale of intoxicating liquors, the prosecuting attorney offered to show that the complaining witness, who claimed to have procured the liquor, immediately thereafter related the circumstances to a third person, whom he proposed to call for the purpose of showing that the sale occurred at the time charged in the information. Upon objection to the statement of the proposed testimony in the presence of the jury, the court ruled that it was the right of counsel to state to the court what he proposed to prove, but that the jury should disregard his statement, and declared the testimony inadmissible for the reason that the name of the proposed witness was not indorsed on the information. The only testimony to support a conviction was that of the complaining witness; that of the respondent and of the only other person claimed to have been present being in direct denial. Held, that the remarks were, under the circumstances, prejudicial to the respondent.</p>

Clair; Vance, J. Isaac Cole was convicted of bastardy. The respondent was convicted of bastardy upon complaint of one Stella Jordan. In her complaint she alleged that “he did beget her with child in the town of Ft.

<p>Exceptions before judgment from Monroe; Kinne, J.</p> <p>Michael Snowberger was convicted of selling adulterated food, in violation of Net No. 193, Public Acts of 1895.</p>

Assumpsit by John Godkin against Henry G. Obenauer and another for failure to make a proper inspection of plaintiff’s lumber. From a judgment for defendants, plaintiff brings error. Plaintiff was a lumberman, and had upon the docks at his mill in Schoolcraft county piles of lumber ready for shipment. It was the custom to sell lumber in Chicago according to the certificates of inspection as to both quality and amount.

Case by George B. Daniels against John Onsted for personal injuries. There was a judgment for plaintiff, and defendant brought error. Plaintiff died pending the .appeal, and the cause was revived in the name of his administrator, Frank D. Kinney. Judgment reversed.

<p>1. Insolvent Debtors — Assignment for Benefit of Creditors— What Constitutes.</p> <p>An insolvent debtor deeded all of bis real estate, except bis homestead, to a firm to which he was indebted in a large amount, and at the same time executed to a member of the firm, as trustee for certain specified creditors, a chattel mortgage covering all of his personal property. This mortgage made no provision for the return of any surplus to the mortgagor. Held, that the instruments did not constitute an assignment for the benefit of creditors.</p> <p>2. Attachment — Dissolution—Burden of Proof.</p> <p>Upon proceedings to dissolve an attachment, the plaintiff has the burden of showing, affirmatively, sufficient cause for issuing the writ, existing and continuing up to the time of the hearing of the application to dissolve.</p> <p>3. Same — Absconding—Meaning of Term.</p> <p>“Absconding,” within the meaning of the attachment laws, means something more than a mere temporary absence for health. It involves the design to withdraw clandestinely, to hide or conceal one’s self, for the purpose of avoiding legal proceedings.</p> <p>4. Fraudulent Conveyances — Evidence.</p> <p>The mere fact that a transfer or series of transfers by a debtor to his creditor will necessarily hinder or delay other creditors, or prevent the collection of their claims, does not render the same fraudulent as a matter of law.</p> <p>o. Attachment — Dissolution—Evidence.</p> <p>Although, to justify the issuance of a writ of attachment on the ground of a fraudulent disposition of property, the intent to defraud must have existed at the time the writ issued, the subsequent conduct of the parties may properly be considered, upon an application to dissolve the writ, for the purpose of throwing light upon such intent.</p>

Trover, in justice’s court, by C. G. Hinkle against Horace M. Collins and Merritt Wing. There was a judgment for plaintiff, and, on special appeal to the circuit court, the proceedings were quashed. Plaintiff brings error.

Mandamus by Henry Hoffman to compel Andrew C. Maxwell, circuit judge of Bay county, to dismiss a suit against relator for want of proper service.

Attachment proceedings in justice’s court under the log-lien law, by Thomas Sheridan against Benjamin Col-ton. There was a judgment for plaintiff, which was reversed in the circuit court on certiorari. Plaintiff brings error.

<p>Err or to Eaton; Smith, J.</p> <p>Case by William A. Randall against the Chicago & Grand Trunk Railway Company for personal injuries. From a judgment- for plaintiff, defendant brings error.</p>

<p>Railroad Companies — Ejection of Trespassers on Trains — Liability for Injuries.</p> <p>A railroad company is not liable for injuries to a trespasser ejected from a train by a brakeman who had no authority to eject him.</p>

Assumpsit by Patrick O’Connell against the Menominee Bay Shore Lumber Company for work and labor performed. From a judgment for plaintiff, defendant brings error.

Trespass under 2 How. Stat. chap. 272, by Samuel G. M. Gates against Andrew W. Comstock and William B. Comstock, survivors, etc. There was a judgment for plaintiff, and both parties bring error.

Bill by the Supreme Lodge Knights of Pythias against the Improved Order Knights of Pythias and others to enjoin the use of the name adopted by the defendant order. From a decree dismissing the bill, complainant appeals.

, presiding. Bill by William Smalley and others against the Northwestern Terra-Cotta Company, impleaded with Traugott Schmidt and others, to enforce a material man’s lien. The defendant company filed an answer in the nature of a cross-bill, to which defendant Schmidt demurred. From an order dismissing the answer in so far as it claimed the benefit of a cross-bill against defendant Schmidt, the Northwestern Terra-Cotta Company appeals.

Lyman G. Mason presented a claim for rent against the estate of Andrew Wierengo, deceased. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for part of the amount claimed, on verdict directed by the court, claimant brings error.,

<p>Error to Muskegon; Russell, J.</p> <p>Case by John Morch against the Toledo, Saginaw & Muskegon Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by Henry Douville against the Farmers’ Mutual Fire Insurance Company of Saginaw county on a policy of insurance. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

<p>Error to Wayne; Hosmer, J.</p> <p>Assumpsit by Frank Miotke against the Milwaukee Mechanics’ Insurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.</p>

Case by Burton McKenzie against John J. Lautenschlager and Mary Lautenschlager for alienating the affections of plaintiff’s wife. From a judgment for plaintiff, defendants bring error.

<p>Error to Manistee; McMahon, J.</p> <p>Replevin by William Vincent against John Hansen. From a judgment for defendant on verdict directed by the court, plaintiff brings error.</p>

<p>Error to St. Joseph; Yaple, J.</p> <p>Assumpsit by Kinyon Bly and Alexander Taylor against J. W. Brady, A. L. Guthrie, and Isaac G. Bliss, for rent. From a judgment for defendant Bliss, plaintiffs bring error.</p>

Assumpsit by the Spanish River Lumber Company against the city of Bay City to recover a tax paid under protest.' From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Ejectment by Alfred B. Ward, administrator of the estate of Clarissa A. Nestell, deceased, against Jane Nestell and others. From a judgment for plaintiff on verdict directed by the court, defendants bring error. Clarissa A. Nestell purchased the land in controversy November 1, 1866, and her deed was placed upon record the same day. She also had a tax deed for the taxes, of 1865, dated June 14, 1871, and recorded June 24, 1871.

Ejectment by Webster L. Marble and others against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Prom a judgment for plaintiffs on verdict directed by the court, defendant brings error.

Trover by Edward W. Harris, executor of the last will and testament of Jacob P. Batchelor, deceased, against Martha L. Cable, for the conversion of a promissory note. From a judgment for defendant, plaintiff brings error.

Assumpsit by William Kroll against the Diamond Match Company to recover the purchase pricé of land sold. From a judgment for defendant, plaintiff brings error.

<p>Error to Marquette; Stone, J.</p> <p>Case by Clark W. Youngs against Sidney Adams for slander. From a judgment for plaintiff, defendant brings error.</p>

<p>Appeal from Wayne; Donovan, J.</p> <p>Bill by Isaac Van Baalen against Catherine Cotney and others to foreclose a mortgage. From a decree for defendants, complainant appeals.</p>

Bill by the St. Johns National Bank against the township of Bingham to restrain the prosecution of a suit to collect a tax. From a decree dismissing the bill on demurrer, complainant appeals.

<p>1. Appeal from Justice’s Court — Jurisdiction.</p> <p>The return of a justice, in a cause appealed to the circuit court, that plaintiff declared in a plea of trespass on the case, that defendant pleaded the general issue, and that judgment was rendered for the plaintiff, is sufficient to confer jurisdiction.</p> <p>2. Same — Lost Piles — Amplification of Return — Procedure.</p> <p>Where the defendant in a cause appealed from justice’s court appears in the circuit, and objects to the court’s taking jurisdiction because no declaration is returned, plaintiff may be permitted to show by the affidavit of the justice, without formal motion, that the original declaration has been lost, and that a declaration attached to the affidavit is, to the best of affiant’s knowledge and belief, the same as that filed in justice’s court.</p>

<p>Statutes — Amendment and Repeal — Misappropriation by Administrator.</p> <p>3 How. Stat. § 9191a, provides a penalty for the willful neglect ' of an executor or administrator to deliver over to his successor in trust upon order of the court, within 30 days, all goods, chattels, money, or effects of the deceased which he has received and appropriated to his own use. Act No. 51, Pub. Acts 1895, purporting to be amendatory thereof, extends the time for compliance to 60 days, and increases the maximum penalty for disobedience, but contains no saving clause. Held, that the earlier statute was repealed by the later one, and that no conviction could thereafter be had for a violation of the former.</p>

<p>Exceptions before judgment from Van Burén; Buck, J.</p> <p>Will Barnes was convicted of violating the local option law.</p>

Bill by Charles Kelsey to restrain the Board of Fire & Water Commissioners of the city of Marquette from shutting off the water from a certain building. From a decree for complainant, defendant appeals. Complainant, a resident of the city of Marquette, occupied as tenant an office on the second floor in the building known as the “Nester Block,” in the said city. He is also the agent of Morrison & Scott, the owners of the building, and has charge thereof.

Foreclosure bill by Milo M. Belding and Alvah N. Belding against Albert F. Meloche, Napoleon H. Meloche, and others. Complainants obtained a decree, and, after, a sale thereunder, filed a petition for the application of certain moneys in the hands of the receiver to the payment of a deficiency, and for a personal judgment for the balance then remaining due. From a decree for complainants, defendants Meloche appeal.

Mandamus by William L. Sherwood against William A. French, commissioner of the state land office, and James T. Bennett, to compel the respondent commissioner to execute a conveyance of certain lands to the relator.

Exceptions before judgment from recorder’s court of Detroit; Chapin, J. Joseph H. Yeager was convicted of assault with intent to commit rape.

Assumpsit by Ara É. Motley against James Wickoff, retiring partner of tbe firm of Gill & Wickoff, to recover the amount of a copartnership debt. From a judgment for plaintiff, defendant brings error.

, presiding. Bill by Edward E. Woodcock against the First National Bank of Niles, impleaded with Charles A. Johnson and others, to rescind the assignment of a mortgage. From a decree for complainant, defendant appeals.

<p>1. Taxes — Sale of Lands — Collateral Attack.</p> <p>A tax sale to the State is not subject to collateral attack on the ground that the land was not offered for sale a second time before being bid in to the State, as required by section 62 of the tax law of 1889 (3 How. Stat. § HYOgfl), where the owner of the land, although appearing in the proceeding in which the decree of sale was made, took no steps to set aside the sale within the time prescribed by section 66 for filing objections to confirmation.</p> <p>2. Same — Drain Taxes — How Enforced.</p> <p>Under section 6, chap. 6, of the drain law of 1885 (3 How. Stat. § 1740/6), providing that taxes assessed under such act shall be collected in the same manner as State and other general taxes, lands delinquent for drain taxes may be bid off in the name of the State, in a proper case, in accordance with the provisions of the general tax law, notwithstanding lands so bid to it are, by the terms of such law, held “for the use of the State, county, and town, in proportion to the amount due each,” neither of which bodies has any pecuniary interest in drain taxes.</p>

Petition by Stanley W. Turner, auditor general, for the sale of lands delinquent for taxes. James Hutchinson and others filed objections. There was a decree for contestants, and petitioner appeals.

Assumpsit by Ann Francis against Daniel C. Hurd to recover money alleged to have been obtained by fraud and duress. From a judgment for plaintiff, defendant brings error.

, presiding. Garnishment proceedings by John H. Long against the Evening News Association, as garnishee of the Tribune Printing Company. From a judgment for plaintiff, the garnishee defendant brings error.

Case by Julia J. Snyder against the city of Albion for personal injuries. From a judgment for plaintiff, defendant brings error.

Bill by Richard F. Kay against Matthew P. Towsley, Charles A. Jason, Ephraim C. Wagar, Benjamin B. Crapo, and others, to foreclose a deed as a mortgage; and by Ephraim C. Wagar and Benjamin B. Crapo against Richard F. Kay and others, to enforce a mechanic’s lien. The causes were consolidated and heard together; and, from a decree adjudging the mortgage lien paramount to the mechanic’s lien, said Wagar and Crapo appeal.

Bill by the Oakland County Savings Bank against the State Bank of Carson City to compel a transfer of stock upon the books of the defendant. From a decree dismissing the bill, complainant appeals.

Garnishment proceedings in justice’s court by John E. Ruhl against the A. Ruoff Brewing Company, as garnishee of John Pennell. Plaintiff had judgment, and the garnishee appealed to the circuit, where verdict was directed for the plaintiff. Pending the entry of judgment upon the verdict, plaintiff died, and the cause was revived in the name of his executrix, Louise Ruhl. The garnishee defendant brings error.

Clair; Yance, J. Case by Elizabeth. White against the township of Riley for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Fraudulent Conveyances — Chattel Mortgages — Corporations.</p> <p>The fact that two chattel mortgages executed by an insolvent corporation to different persons were authorized by the board of directors at the same meeting, and given on the same day, does not constitute them parts of the same transaction, so that the fraudulency of one as to creditors vitiates the other.</p>

<p>Constitutional Law — Exemptions—Labor Debts — Class Legislation.</p> <p>Section 1 of Act No. 14, Pub. Acts 1885 (8 How. Stat. § 1717a), limiting the right' of exemption to the articles therein enumerated, not exceeding $500 in value, in cases where the execution is issued upon a judgment for personal labor, is invalid as class legislation, and as contravening section 1, art. 16, of the Constitution, which provides that the personal property of every resident of the State, to consist of such property as shall be designated by law, shall be exempted, to the amount of not less than $500, from sale on execution or other final process of any court, issued for the collection of any debt.</p>

Thomas G. Sullivan presented a claim against the estate of James G. Ross, deceased. The claim was disallowed by the probate judge, and claimant appealed to the circuit court. From a judgment for defendant on verdict directed by the court, claimant brings error. The facts, merits, and contention involved in this suit are fully stated and discussed in an exhaustive opinion by Chief Justice McGrath in 98 Mich. 570, which was concurred in by the entire court.

Charles A. Bush and others presented for probate the will of William R. Delano, deceased.. William Delano and others appealed to the circuit court from an order probating the will. From a judgment for proponents, contestants bring error.

Assumpsit by the Canton Bridge Company against the city of Eaton Rapids to recover the contract price for the construction of a bridge. Erom a judgment for defendant, plaintiff brings error.

<p>1. Res Judicata — Parties—Supplemental Proceedings.</p> <p>A decision on the hearing of a suit in equity, that the complainants are proper parties to the bill, renders the question res judicata in a supplemental proceeding by them in aid of execution based upon the decree in such suit.</p> <p>2. Execution — Exemptions—Property Devoted to Public Use.</p> <p>The interest of a corporation in an electric plant, erected for the use of a city under a contract which has been declared void in a suit by taxpayers of the city for an accounting as to the moneys received thereunder, is not exempt from sale on execution issued upon the decree obtained in such suit, on the ground that such plant is devoted to public use.</p>

Bill by William Campbell and others against the Western Electric Company, impleaded with the city of Wyandotte and others, to set aside a judgment on the ground that it was obtained by fraud and collusion. Defendant appeals from an order overruling its demurrer to the bill.

Covenant by Charles L. Webb .against Henry H. Holt upon a warranty of title. From a judgment for plaintiff •on verdict directed by the court, defendant brings error.

Case by Clifford R. Shaw against the township of Saline for personal injuries. From a judgment for plaintiff, defendant brings error.

, presiding. Case by Minnie A. Minkley against the township of Springwells for personal injuries. From a judgment for plaintiff, defendant brings error.

Assumpsit by Frank B. Clark against Egbert W. Lowe for moneys paid to defendant’s use. From a judgment for plaintiff, defendant brings error. Plaintiff and defendant exchanged real estate, and each executed to the other the proper deed of conveyance. In the deed from defendant to plaintiff the consideration was expressed at $3,000.

Bill by Lorenzo Landis and others against Maggie Landis to annul a marriage, to set aside certain deeds, and to revive a mortgage alleged to have been fraudulently destroyed. ' From a decree dismissing the bill, complainants' appeal.

Assumpsit by tbe Michigan Mutual Life Insurance Company against Horatio N. Mather upon a promissory note. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Bill by Samuel Mitchell and others against the city of Negaunee, the Arbuckle-Ryan Company, and the Ft. Wayne Electric Corporation, to restrain the carrying out of certain contracts for the establishment of an electric light plant. From a decree dismissing the bill, complainants appeal.

), J., presiding. George J. Walker was convicted of taking improper liberties with the person of a female child, without intending to commit the crime of rape, and was sentenced to imprisonment in the state house of correction at Ionia for 18 months.

Bill by Melissa M. Briggs and others against Spencer B. Briggs and Sarah A. Briggs for the specific performance of a verbal contract to convey land. From a decree for complainants, defendants- appeal.

Bill by Adam Lemp and others, trustees of the First Church of Sparta of the United Brethren in Christ, against Wallace J. Raven and others, to recover possession of certain church property. From a decree dismissing the bill, complainants appeal.

Case by Henry P. Perkins against the township of Delaware for damages alleged to have been sustained by reason of a defective bridge. From a judgment for plaintiff, defendant brings error.

Mandamus by Mary A. Wynkoop to compel Roscoe L. Corbett, circuit judge of Grand Traverse county, to set aside a decree for the sale of land for delinquent taxes.

Mandamus by tbe Home Savings Bank and tbe Preston National Bank of Detroit to compel Willard M. Lillibridge, circuit judge of Wayne county, to permit the relators to intervene in a certain cause for the purpose of moving to set aside the judgment therein.

Mandamus by Fred A. Maynard, Attorney General, to compel the common council of the city of Detroit, sitting as a board of review, to place the property of certain corporations upon the assessment rolls for taxation.

<p>1. Executors and Administrators — Final Account — Amendment in Circuit Court</p> <p>An executor’s final account, as presented for settlement in probate court, may, in furtherance of justice, be amended in the circuit court on appeal by adding omitted items.</p> <p>2. Same — Charges—Tombstone.</p> <p>The price paid for a suitable tombstone for a decedent is a proper charge in the executor’s final account.2</p> <p>3. Same — Attorney’s Fees — When Allowed.</p> <p>Under 2 How. Stat. § 5958, providing that an executor or administrator shall be allowed “all necessary expenses in the care, management, and settlement of the estate, and for his services such fees as the law provides, together with all extra expenses,” reasonable attorney’s fees for services actually and necessarily rendered by counsel in the settlement of the estate, although yet unpaid by the executor, are properly allowed to him in his final account. Hooker and Grant, JJ., dissenting.</p>

<p>Error to Monroe; Kinne, J.</p> <p>Case by Adna Eno against Horace H. Allen for malicious prosecution. From a judgment for plaintiff, defendant brings error.</p>

Bill by Frank Bailey against John Holden and others to remove a cloud from title. From a decree for complainant, defendants appeal.

Bill by John Landis against Amanda C. Smith to set aside a deed alleged to have been procured by fraud and undue influence. From a decree dismissing the bill, complainant appeals.

Replevin by Prank Bublitz against Andrew Trombley for distrained cattle. From an order discontinuing the suit because of a defect in the bond, plaintiff brings error.

Attachment proceedings by John B. Matthews and others against Mathilda Forslund, wherein the Gogebic Hardwood Manufacturing Company was summoned as garnishee. Plaintiffs had judgment in justice’s court, and defendant removed the case to the circuit on certiorari, where the justice’s judgment was sustainedDefenda-nt brings error.

Bill by Frederick St. John Lockwood against Orange Noble and Charles E. Thompson to remove a cloud from title. From a decree for complainant, defendant Noble appeals. The object of this suit is to remove a cloud from title, caused by a decree and sale of the lands described therein on-the foreclosure of a mortgage. Complainant and defendant Noble derived title from Thomas S. Donohue, who was the owner in fee of the lands, May 29, 1867.

Assumpsit by Julius J. Levy against Michael O’Leary upon a promissory note. From a judgment for plaintiff, defendant brings error.

Bill by the Farmers’ Fire Insurance Company against Cyrus Johnston and others to enjoin the collection of a judgment upon a policy of insurance. From a decree dismissing the bill on demurrer, complainant appeals.

<p>1. Service of Process — Acceptance—Jurisdiction.</p> <p>An admission of “due personal service” of subpoena by a defendant in another State is sufficient to confer jurisdiction upon a court of this State.</p> <p>2. Same.</p> <p>It seems that the bare admission of the fact of service beyond the territorial jurisdiction of the court would not be deemed sufficient.</p> <p>3. Ejectment — Betterments—Sufficiency of Occupancy.</p> <p>A defendent in ejectment who, before the commencement of the action, entered upon the premises in good faith under color of title, painted the exterior of the house, shingled a portion of the roof, and moved some things into the house, is within 3 How. Stat. § 7836, providing for compensation for improvements made by defendants in ejectment who shall have “occupied” the premises for a less time than six years under color of title and in good faith.</p> <p>4. Same — Good Faith — Question eor Jury.</p> <p>Where the circumstances are such as to throw doubt upon defendant’s good faith, the question is one for the jury.</p>

<p>Appeal from Wayne; Lillibridge, J.</p> <p>Bill by Frank C. Desmond against Lucy A. Myers and Jefferson P. Myers in aid of execution. From a decree dismissing the bill, complainant appeals.</p> <p>The following finding by the court is a good and sufficient statement of the case, and we adopt it:</p> <p>“This is a bill in aid of execution. The complainant obtained a judgment for $227 against the defendant Lucy Myers, and he has levied to satisfy that judgment upon a certain lot described in the bill of complaint. Now, the levy was made on the 13th day of May, 1896. Prior to the 20th day of December, 1895, that lot stood in the name of Lucy Myers. On the 20th day of December, 1895, Lucy Myers, in pursuance of an agreement or arrangement between herself and her husband, which the testimony shows was contemporaneous with the taking of that title in herself, conveyed that property to one Smith, and Smith, in pursuance of the same arrangement, deeded it to Mrs. Myers and Mr. Myers. The’testimony is uncontradicted here that, when this lot 13 was bought, Jefferson Myers furnished the consideration for it, — the entire consideration; and that he took that deed in the name of his wife with the intention of creating a homestead, and ultimately taking title in the name of himself and wife as joint tenants. Now, while it is true that section 5569 of the statute provides that Jefferson Myers might not have had an action against his wife which he could enforce against that property, yet it is established, as I think, by the cases which have been cited from the Michigan Reports, that such an arrangement or understanding or agreement between a husband and wife is valid, and that, if the conveyance is made subsequently in pursuance of that, it is not a fraud against creditors. Now, I see no reason to doubt the testimony of Mr. Myers in the case. In fact, I believe it, — that he did furnish the consideration for this property, and Mrs. Myers furnished no money for it, and that he took the title as he states, with the intentions stated by him. It appears that this arrangement was carried out the 20th of December, 1895, and that judgment in this case against the defendant was rendered May 1, 1896, so that I do not perceive any actual or legal fraud in the transfer of this property to Jefferson Myers and his wife.”</p>

Case by Emma Ford against Jacob Cheever under the civil-damage law. From a judgment for plaintiff, defendant brings error.

Case by Leander Soper against the Pontiac, Oxford & Northern Railroad Company for injuries to stock shipped over defendant’s road. Prom a judgment for plaintiff, defendant brings error.

Assumpsit by John Kelly, Jr., against William J. Bowerman and another for rent. From a judgment for plaintiff on verdict directed by the court, defendants bring error. This is a suit brought by plaintiff in justice’s court, February 9, 1885, as assignee of a lease executed by one Catherine Brennan to the defendants on May 16, 1894. Plaintiff recovered judgment in both justice’s and circuit courts.

John Grimes presented a claim against the estate of James M. Williams, deceased, which was disallowed by the commissioners, and claimant appealed to the circuit court. From a j udgment for defendant on verdict directed by the court, claimant brings error.

Bill to quiet title by Amanda A. McKenzie and others against the A. P. Cook Company, Limited, and others. Defendants filed an answer in the nature of a cross-bill. From a decree for complainants, defendants appeal.

Bill by Frances A. Curtis, as executrix of the last will and testament of George Curtis, deceased, against Helen J. Clarke, to enforce a vendor’s lien. From a decree for complainant, defendant appeals.

Assumpsit by Hannah L. Cornell against Edgar A. Crane for money had and received. From a judgment for plaintiff, defendant brings error.

Trespass quare clausum fregit by Herman Stark against German Miller and others. From a judgment for defendants on verdict directed by the court, plaintiff brings error. Plat showing S. part Sec. 23, N. part Sec. 26, S W. 4 Sec. 24, and N. W. 4 of Sec. 25, T. 1 S., R. 4 W., Calhoun Co., Mich. Explanation: Section lines:---------- Meander: - - - - - - - - - - - - - - Heavy lines inclose land owned by Herman Stark.

Certiorari by Charles Prange to review the action of the circuit court in discharging Paul W. Friedrich on a writ of habeas corpus. One Charles Prange recovered a judgment against Paul W. Friedrich in an action of tort for the fraudulent conversion of money. The action was commenced by a capias ad respondendum. A fi. fa. was issued, and returned nulla bona.

Assumpsit by the Detroit Baseball Club against the Preston National Bank to recover a balance of deposit. From a judgment for plaintiff, defendant brings error.

Trover by the Sligh Furniture Company against George A. Shannon. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Case by Martin Sakol against Henry Rickel for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by the Union Trust Company against Mabley & Company to foreclose certain mortgages. The city of Detroit intervened, praying that certain taxes due to it be paid from the proceeds of the sale. From an order granting the prayer of the intervener, complainant appeals.

Case by Andrew McDonald against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company to recover the value of a steer killed on defendant’s track. From a judgment for defendant on verdict directed by the court; plaintiff brings error.

, presiding. Assumpsit by Thomas J. Potter against James Tolbert and Leroy Moore upon a promissory note. Erom a judgment for plaintiff, defendant Tolbert brings error.

, presiding. Bill by William Munroe against Joseph Merrell and another to enforce a mechanic’s lien. From a decree for complainant, defendant Merrell appeals.

<p>Error to Kent; Grove, J.</p> <p>Case by Edward White against Thomas Whittal for assault and battery. From a judgment for defendant, plaintiff brings error.</p>

Bill by Fred A. Maynard, attorney general, to enjoin the city of Detroit from paying to James McQueen and James Barker, as assistant boiler inspectors, larger salaries than the amounts allowed by the board of estimates. From a decree for complainant, defendants appeal.

Case by Dorotoe Grandorf against the Detroit Citizens' Street Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Appeal from Ionia; Davis,' J.</p> <p>Bill by Ambrose Hammond against George W. Rathbone and others to foreclose a mortgage. From a decree for complainant, defendants Rathbone appeal.</p>

Submitted Assumpsit by Julius Schulz, administrator of the estate of Maria E. D. Schulz, deceased, against William Schulz, upon a promissory note. From a judgment for plaintiff, defendant brings error.

Samuel Heavenrich and another, copartners, presented a claim against the estate of Amos W. Nichols, deceased. The claim was disallowed by the commissioners, and claimants appealed to the circuit court. From a judgment for claimants on verdict directed by the court, the administrator brings error. Mr. Nichols died January 11, 1890, intestate. An administrator was duly appointed. March 3, 1890, commissioners were appointed to hear claims.

Assumpsit by Andrew Smith against John A. Jackson to recover a balance due upon a fishing contract. From a judgment for plaintiff, defendant brings error.

<p>Error to Berrien; Coolidge, J.</p> <p>Case by George Newton Bush against the St. Joseph & Benton Harbor Street-Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Case by Wesley Penrose, an infant, by William Pen-rose, his next friend, against Fred Fehr, for personal injuries. From a judgment for plaintiff, defendant brings error. Plaintiff, who was 17 years of age, about 8 o’clock on the evening of December 6, 1894, stood at the intersection of two streets in the city of Ironwood. Several boys were throwing snowballs.

Trover by William Heighes against the Dollarville Lumber Company. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Error to Berrien; Coolidge, J.</p> <p>Replevin by Sylvester Parks against Wellington R. Kerstetter. From a judgment for plaintiff on verdict directed by the court, defendant brings error.</p>

The Union Banking Company of St. Joseph presented a claim against the estate of Jane Ü5. Martin, deceased, upon a promissory note. The claim was allowed by the commissioners, and the estate appealed to the circuit court. From a judgment for claimant, defendant brings error.

<p>Criminal Law — Intoxicating Liquors — Appeal.</p> <p>A conviction of violating the liquor law, based upon competent evidence and following proper instructions, was affirmed.</p>

Assumpsit by Gerald Carver against school district No. 6 of Battle Creek township, upon a teacher’s contract. From a judgment for defendant, plaintiff brings error.

Case by Augusta M. Bannister, administratrix of the estate of Elijah B. Bannister, deceased, against the Lake Shore & Michigan Southern Railway Company, for negligently causing the death of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by Vitelus M. Baker against the Barnett Produce Company for tbe breach of a contract to buy produce. From a judgment for plaintiff, defendant brings error.

<p>Appeal — Bill oe Exceptions — Assignments oe Error — Court Rules.</p> <p>A writ of error will be dismissed on motion where no assignments of error accompanied the bill of exceptions at the time of its settlement, as required by Circuit Court Rule 47, par. (e).</p>

<p>Error to recorder’s court of Detroit; Chapin, J.</p> <p>Michael Moloney was convicted of knowingly receiving stolen goods.</p>

<p>Exceptions before judgment from St. Clair; Vance, J.</p> <p>Louis Rush was convicted of illegally selling intoxicating liquors.</p>

Assumpsit by Justus A. White against Orsón D. Taylor for money had and received. From a judgment for plaintiff, defendant brings error.

<p>Error to Iosco; Simpson, J.</p> <p>Trover by Emil E. Kunze and John Sullivan, copartners, against Thomas P. Cox, sheriff of Iosco county. From -a judgment for defendant, plaintiffs bring error.</p>

<p>1. Contracts — Meeting of Minds — Instructions.</p> <p>In an action upon a contract resting in parol, where the versions of the transaction were so different that the jury might properly have found that the minds of the parties never met on any contract, a charge which conveyed the idea that the minds of the parties did meet, either on the contract alleged in the declaration or the one testified to by defendant, was reversible error, although a requested instruction that, unless the minds of the parties met upon the alleged contract, there could be no recovery, was given in the same connection.</p> <p>2. Same — Adequacy of Consideration — Legal Services — Evidence.</p> <p>Evidence that the labor performed by plaintiff in obtaining the appointment of a guardian for an incompetent person was light in comparison with the amount which he alleges defendant agreed to pay for his services cannot be adduced by defendant to show an improbability that plaintiff’s version of the agreement is correct, but the inquiry, if permissible at all, must be as to the value of the services contemplated, taking consideration of the contingencies.</p> <p>8. Same — Qualifications of Attorney.</p> <p>Evidence that the plaintiff in such action is a lawyer of limited practice and experience is inadmissible on the question of probability, where defendant does not profess to have known anything about plaintiff’s qualifications at the time the alleged contract was made.</p>

Clair; Yance, J. Mandamus by Arthur L. Buchanan to compel Alexander F. Moore, circuit court commissioner, to issue a writ of restitution in summary proceedings brought before him wherein relator was complainant and one Joseph Marsh defendant. The application was granted, and, upon petition of Marsh, the proceedings were removed to the Supreme Court for review on certiorari. On relator’s motion to dismiss.

Bill by the Ann Arbor Savings Bank against Oscar L. Ellison and Mary D. L. Ellison to foreclose a mortgage. From a decree dismissing the bill as to defendant Mary, complainant appeals.

Bill by John M. Fuchs and others to restrain Herman Meisel and others from interfering with the administration of the affairs of Zion’s Church, Bay City, in accordance with the rules and discipline of the Evangelical Association of North America. From a decree dismissing the bill, complainants appeal.

Frances M. Britton appealed from an order allowing the final account of Albert Ives, Jr., as administrator of the estate of James E. Brewster, deceased. The order of the probate court was affirmed in the circuit, and said Britton brings error.

Ejectment by Gilmore G. Scranton against Eben S. Wheeler. From a judgment for defendant on verdict directed by the court, plaintiff brings error. This case originated in the circuit court of the county of Chippewa in May, 1891, to recover possession of the following-described parcel of land: “An undivided one-half interest or portion of, in, and to private land claim number 3, Whelply’s survey, in the village of Sault Ste.

Error -to Wayne; Frazer, J. Assumpsit by Walter G. Hogan against George Hadzsits, Herman Beckmann, and Herman Rohns, formerly copartners as George Hadzsits & Company, for goods sold and delivered. From a judgment for defendants, plaintiff brings error.

<p>Error to Hillsdale; Lane, J.</p> <p>Case by Kate Fowler against Frederick Fowler for slander. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by Elorian De Cremer against William F. Anderson and Abraham Boulsom upon an alleged contract of guaranty. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

<p>1. Personal Injuries — Unknown 'Cause — Balancing oe Proba-, bilities.</p> <p>The rule that where an injury occurs that cannot be accounted for, and the occasion of it rests wholly in conjecture, the case may fail for want of proof, will not be extended so as to-deny a right of action to an injured person where there is room for balancing the probabilities, and for drawing reasonable inferences better supported upon his theory than upon that of the defense.</p> <p>2. Same — Explosion op Nitroglycerine — Evidence — Question por Jury.</p> <p>Whether the inference suggested by plaintiff’s theory as to-the cause of an explosion of nitroglycerine, whereby her intestate had been killed, was the correct one, or whether it was sufficiently rebutted, was a question for the jury, upon evidence that the explosion occurred a few hours after an attempt had been made to change the method of conveying the compound, by employing for the purpose a rubber hose; that, upon its appearing that the plan was impracticable, the hose bad been permitted to remain attached at one end to a tank, and filled with so much of the compound as failed to escape at the open end; and that the compound contained acids which would generate, gases and cause an explosion; and evidence in rebuttal that nitroglycerine explodes at 380 deg. Fahrenheit, and that hose of the size employed would not stand the pressure occasioned by the generation of that degree of heat.1</p>

Mandamus by Frederick Gratopp to compel Arthur E. 'Van Eps, a justice of the peace, to issue an execution. The relator obtained a judgment under one Salisbury, a justice of the peace of the city of Mt. Clemens, in August, 1894. At the spring election of 1895 the respondent was elected the successor of said Salisbury. The city at that time had four justices of the peace, the respondent being elected for a full term.

Case made from Wayne; Adams, J., presiding. The petition of a legatee under the will of Martin F. Schulz, deceased, for the distribution of the estate, was granted by the probate court, and Herman Kleinow, administrator with the will annexed, appealed to the circuit court-. The order of the probate court was reversed in the circuit, and the legatees assign error. Martin F. Schulz died testate.

, presiding. Case by Bethuel D. Rathbun against George A. Parker for fraudulent representations. From a judgment for plaintiff, defendant brings error. We are favored with no brief on the part of the appellee. We must therefore assume that he is content with the statement of facts made in the appellant’s brief, which we adopt: ‘ ‘ Plaintiff, in'the fall of 1892, was the owner of a small ■store in the village of Bancroft, Shiawassee county, Michigan.

<p>Cross-appeals from Wayne; Adams, J., presiding.</p> <p>Bill by Spencer L. Houghton against Alonzo E. Bradley and the State Mutual Life Assurance Company for a partnership accounting. From the decree rendered, all parties appeal.</p>

Case by Ada C. Swanson, administratrix of the estate of J. Sanfred Swanson, deceased, against the Menominee Electric Light, Railway & Power Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.

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

Bill by Charles Boyden and Jukie Boyden to enjoin Wyllis S. Walkley and John Juistema from depositing sewage in complainants’ private sewer. From a decree for complainants, defendant Walkley appeals.

<p>Appeal from Kent; Adsit, J.</p> <p>Bill by the Michigan Trust Company against the Grand Rapids Democrat to foreclose a chattel mortgage. M. Almy Aldrich and other employés of the defendant corporation severally filed petitions as interveners for preference as to their several claims for compensation. From a decree in favor of the interveners, complainant appeals.</p>

Bill by Andrew L. Douglass and others against Mary L. Boardman and Clark H. Gleason to enjoin the prosecution of ejectment suits. From an order overruling their several demurrers to the bill, defendants appeal.

Bill by the township of Maple Valley against James Foley and wife in aid of execution. From a decree dismissing the bill, complainant appeals.

Bill by Andrew W. Comstock and William B. Com-stock, surviving partners of the firm of Comstock Brothers, against George R. McDonald, administrator of the estate of Joseph B. Comstock, deceased, and others, for an accounting. From an order appointing a receiver upon the application of defendants, complainants appeal.

Proceedings by Allan Kirkpatrick against William Mebalitcli under 1 How. Stat. § 4886 et seq., to enforce the individual liability of defendant for goods sold to a corporation in which he was a stockholder. From a judgment for defendant, plaintiff brings error.

Edward Hurton, Jr., presented for probate the will of Edward Hurton, Sr., deceased, which was contested by Michael Hurton. Probate was denied, and proponent-appealed to the circuit court. Prom a judgment for contestant, proponent brings error.

Assumpsit by Albert Nelson against James Kilbride for money had and received. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Gerrit EL Albers and others petitioned the circuit court for the vacation of a portion of Trowbridge street, in the city of Grand Rapids. The petition was granted, and the city brings certiorari.

<p>Error to Wayne; Donovan, J.</p> <p>Case by Josephine State against the city of Detroit for personal injuries. Plaintiff died pending the trial, and the cause was revived in the name of her administrator, Thomas State. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by Jane Finch against the Modem Woodmen of America upon a benefit certificate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by Flora A. Kieldsen, Minor T. Wheeler, and Nancy H. Bickhart against Delos A. Blodgett and another to set aside a deed. From a decree dismissing the bill, complainants appeal.

Bill by William J. Gray and Robert T. Gray, copartners as Gray & Gray, and George L. Beecher and Luther S. Trowbridge, administrators of the estate of Luther Beecher, deceased, against the city of Detroit, to cancel certain tax sales. From a decree dismissing the bill on demurrer, complainants appeal.

Assumpsit by the city of Saginaw against the Swift Electric Light Company to recover an amount alleged to be due under an ordinance providing for an inspection by the city of the poles maintained by the defendant. From a judgment for plaintiff, defendant brings error.

<p>Lou Liens — Trespassers—Res Judicata.</p> <p>While a mere trespasser is entitled to no lien upon logs for labor and expenses as against the owner, the latter cannot, in replevin for-the logs, deny upon that ground the validity of a lien established in proceedings under 3 How. Stat. § 8427e et seq., wherein he was served, appeared, and defended the action.</p>

Wayne; Frazer, J. George L. Beecher and Luther S. Trowbridge, administrators of the estate of Luther Beecher, deceased, petitioned the probate court for leave to compromise a claim interposed against the estate for rent under a lease, by purchasing the premises déscribed therein.

Replevin by George Archie De Graw and another against John U. Emory. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.

, presiding. Case by James O. Murfin against the Detroit & Erin Plank-Road Company for preventing plaintiff from riding a bicycle upon defendant’s road without the payment of toll. From a judgment for plaintiff, defendant brings error.

Assumpsit by Fred D. Stevens and Frederick J. Todd, copartners, against Madame M. Yale, for the breach of a contract to advertise defendant’s remedies as on sale at plaintiffs’ store. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.

Case by Antoine Schwingschlegl against the city of Monroe for personal injuries. From a judgment for plaintiff, defendant brings error.

, presiding. Bill by William Baudistel and others to restrain the Michigan Central Railroad Company from obstructing a street. From a decree dismissing the bill on demurrer, complainants appeal.

Bill by William Gadd, executor, and others, against Mary E. Stoner and Laura G. Powell, to construe the will of Edward Y. Powell, deceased. From a decree for complainants, defendants appeal.

Mandamus by the Union Street-Railway Company to compel Byron A. Snow, circuit judge of Saginaw county, to issue a preliminary injunction restraining the city of Saginaw from removing relator’s tracks from the streets. The relator either owns or leases the entire street-railroad system of the city of Saginaw, and is, and has been for several years, operating the same.