Volume 114 — Michigan Reports

Replevin by Wesley L. Hoffman against Pack, Woods & Company and the Oscoda Boom Company. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Ejectment by Luman Jenison against John Conklin and wife. Prom a judgment for defendants on verdict directed by the court, plaintiff brings error.

<p>Error to Wayne; Aldrich, J., presiding.</p> <p>Assumpsit by George A. Sheley, executor of the last will and testament of Ann E. Sheley, deceased, against Emma S. Brooks and Elizabeth S. Clark, to recover the amount of an insurance policy alleged to have been assigned to decedent. From a judgment for plaintiff, defendants bring error.</p>

<p>Administrator’s Sale — Collateral Attack — Irregular Notice —Effect of Confirmation.</p> <p>An administrator’s sale, duly confirmed by the probate court, will not be set aside in a collateral proceeding because the notices of sale, instead of being posted in three public places in the ward in which the property was situated, as provided by 2 How. Stat. § 6040, were posted in three public places just outside of the ward. Montgomery, J., dissenting.</p>

Assumpsit by the Industrial Works against John A. Mitchell and Chauncey E. Mitchell upon promissory notes. From a judgment for plaintiff, defendants bring error.

<p>Appeal from Gratiot; Daboll, J.</p> <p>Bill to redeem by Charles K. Secor and wife against Anna L. Patterson. From the decree rendered, complainants appeal.</p>

Bill by the township of Grant against the township of Reno for contribution to the payment of a judgment against the complainant township. From a decree for complainant, defendant appeals.

Mandamus by the board of auditors of Wayne county to compel William L. Carpenter, circuit judge, to issue a writ of mandamus requiring the board of supervisors of said county to rescind a resolution providing for a committee to supervise the construction of a county building.

Clair; Eldredge, J., presiding. Bill by William L. Jenks against Rebecca Horton and others to subject equitable assets to the payment of complainant’s claim. From a decree dismissing the bill, complainant appeals.

Case by Annie Kastl, administratrix of the estate of Anthony Kastl, deceased, against the Wabash Railroad Company, the Detroit, Lansing & Northern Railroad Company, and the Flint & Pere Marquette Railroad Company, associated and doing business as the Union Terminal Association, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendants bring error.

Case by Marshall Thomas against the Ann Arbor Railroad Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

, presiding. Case by the M. I. Wilcox Cordage & Supply Company against George L. Mosher and others, directors of Mosher, Bissell & Mather, a corporation, based upon the statute requiring directors to file an annual report. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Assumpsit by Nathaniel Smith against Lyman A. Car-low, treasurer of Imlay township, to recover taxes paid under protest. From a judgment for plaintiff on verdict directed by the court, defendant brings error. This case is no stranger to the courts. It involves the validity of the proceedings to construct what is known as the “North Branch' of Mill Creek Drain,” situated in the counties of St. Clair and Lapeer, which drain is several miles in length.

Assumpsit by Mary E. Barnard, assignee of John Patterson, against Duncan McLeod, upon a building contract. Prom a judgment for plaintiff, defendant brings error. The constitutional question referred to in the opinion is indicated by the following quotation from plaintiff’s brief: “The construction contended for by defendant cannot be sustained, for the reason that the provision so construed would not be within the title of the act in question.

Mandamus by the township of Ada and others to compel William E. Grove, circuit judge of Kent county, to dissolve an injunction restraining relators from entering into a contract for the construction of a bridge. The township of Vergennes was permitted to intervene, and opposed the granting of the writ.

Habeas corpus by Alice Maguire to inquire into the cause of the detention of her husband, Eugene Maguire, by the superintendent of the Michigan asylum for the dangerous and criminal insane.

Assumpsit by the Detroit River Savings Bank against the city of Detroit to recover taxes paid under protest. From a judgment for defendant, plaintiff brings error.

Case by Sophia Soderstrom, administratrix of the estate of John Soderstrom, deceased, against the Holland-Emery Lumber Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant, plaintiff brings error.

<p>Promissory Notes — -Contemporaneous Agreement — Parol Evidence.</p> <p>A note absolute in form, given for the purchase price of stock, cannot be varied by evidence of a contemporaneous parol agreement by the payee to credit on the note the amount of damages sustained by the maker if other stock previously ■ sold to him for breeding purposes should prove to be barren.</p>

Case by James Linnen against Paris Banfield, Melvin C. Peterson, David Collins, and John V. Sheehan for trespass and false imprisonment. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Case by Catherine J. Hall against the city of Cadillac for personal injuries. From a judgment for plaintiff, defendant brings error.

, presiding. Bill by ’William Smalley and others against the Ash-land Brown-Stone Company, impleaded with Traugofct Schmidt' and others, to enforce a mechanic’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, the defendant company appeals.

Mandamus by William W. Bishop and others, aider-men of the city of Wyandotte, to compel Walter C. Lambert, mayor of said city and ex officio president of the common council, to rescind his ruling in declaring a certain motion carried. From an order denying the writ, re- lators bring certiorari. The relators are aldermen, and the respondent is mayor, of Wyandotte, which is a city of the fourth class.

<p>Mandamus by Joseph L. Hudson, receiver of the Third National Bank of Detroit, to compel Eugene Wilber, circuit judge of Saginaw county, to vacate an order quashing a writ of garnishment issued against Charles B. Gray and Edward Y. Swift, executors of the last will and testament of Aaron C. Fisher, deceased, as garnishee defend-</p> <p>ants of John E. Nolan.</p>

Bill by George T. Ford and Josephine Ford against Charles Wright for the specific performance of a land contract. The defendant filed an answer in the nature of a cross-bill, praying that the amount already paid on the contract be refunded. From a decree for defendant, complainants appeal.

Bill by James H. Wiltsie against Edward E. Harvey, the City Savings Bank of Detroit, and others, to enforce a mechanic’s lien. From a decree for complainant, the defendant bank appeals.

), J., presiding. Case by Albert Hayball against the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.

Bill by Albert J. Chapman against Grace A. Chapman and Amanda L. Chapman to establish in complainant a life estate in certain lands. From a decree dismissing the bill on demurrer, complainant appeals.

Bill by the O. & W. Thum Company against Appollonious A. Tloczynski to enjoin the communication of trade secrets. From a decree for complainant, defendant appeals.

Assumpsit by Andrew Anderson against Archibald Grant to recover a balance claimed to be due upon a contract for excavating. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Trespass quare clausum fregit by Edmund Hall against Charles Alford and another. From a judgment for defendants on verdict directed by the court, plaintiff, brings error.

Assumpsit by the American Hoist & Derrick Company against Andrew Johnson for goods bargained and sold. From a judgment for defendant, plaintiff brings error.

Assumpsit by Marie Drosdowski against the Supreme Council of the Order of Chosen Friends upon a benefit certificate. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Assumpsit by James McCarthy against Jacob P. Sleight for work and labor performed. Prom a judgment for defendant, plaintiff brings error.

<p>1. Wills — Attestation — Death of Subscribing Witnesses — Statutes.</p> <p>The death of the subscribing witnesses to a will is a contingency-covered by section 5789, 2 How. Stat., providing that, if the witnesses are competent at the time of the attestation, their subsequent incompetency, “from whatever cause,” shall not prevent the probate of the will, if it be otherwise satisfactorily proved, rather than by section 5808, providing for the admission of testimony to prove the sanity of the testator and the execution of the will where none of the subscribing witnesses shall “reside in the State” at the time appointed for proving the will.</p> <p>2. Same — Proof of Execution — Sufficiency.</p> <p>A finding that a will, the subscribing witnesses to which were dead at the time of its probate, was “satisfactorily proved,” within the meaning of section 5789, is sustained by evidence that the testatrix was possessed of testamentary capacity at the time of its execution; that it was in the handwriting of a practicing lawyer of good repute; that the attestation clause was in compliance with the x>rovisions of the statute; that, on the day of its execution, it was delivered into the custody of the probate judge, who gave his receipt therefor; that the testatrix intrusted the receipt to her sister-in-law, to be delivered to the beneficiary upon the death of the testatrix; and that in subsequent conversations, the last of which occurred a short time before her death, the testatrix indicated that she understood what the paper was, and professed anxiety that it should be properly delivered.</p>

, presiding. Case by Schuyler Georgia against William Bond for slander. From a judgment for plaintiff for nominal damages only, he brings error.

Case by Nellie Knapp, administratrix of the estate of Lyman H. Knapp, deceased, against the Chicago & West Michigan Railway Company, for negligently causing the death of her intestate. From a judgment for plaintiff, defendant brings error.

Martha Crawford appealed from an order of the probate court allowing the account of the executor of the last will and testament of Lafurgy Bloss, deceased, and assigning to the widow realty under the will and one-half the residue of the personalty under the statute. The order was affirmed in the circuit court, and appellant brings error.

<p>Error to Saginaw; Kendrick, J.</p> <p>Case by Alice M. Holman against the Union Street-Railway Company of Saginaw for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Bill by Sidney Field, administrator with the will annexed of the estate of Serephina A. Tucker, deceased, and Hiram A. - Tucker, sole legatee under said will, against Henry C. Loveridge and Mary Ellen Allen, to enforce a lien upon land. From a decree for complainants, defendants appeal.

Mandamus by George L. Beecher to compel the common council of the city of Detroit to vacate an assessment for taxes on personal property. From an order denying the writ, relator brings certiorari.

Case by Charles E. Hall against Gilson E. Murdock and Sarah M. Murdock for personal injuries. From a judgment for plaintiff, defendants bring error. Tort for damages resulting from the fall of an elevator upon which plaintiff was riding. The. elevator was in an annex at the rear of a block, running from the basement to the third floor.

<p>1. Villages — Reincorporation—Effect on Existing Rights of Action.</p> <p>An action against a village for injuries received upon a defective sidewalk before Act No. 3, Pub. Acts 1895, reincorporating thereunder all villages previously incorporated, took effect, may, under the saving provisions of chapter 14, § 8, be prosecuted under the former law.</p> <p>2. Same — Claim for Damages — Presentation to Council — Notice.</p> <p>Therefore, the injured person’s failure to present his claim to the council for allowance, as required by chapter 5, § 7, of the act of 1895, and to give notice to the village clerk, within 60 days after the injury occurred, of his intention to hold the village liable for the damages sustained (chapter 7, § 7), will not, in such case, defeat a recovery, where no such provisions were contained in the law under which the defendant village was previously incorporated.</p> <p>3. Sidewalks — Condition . of Repair — Conclusions of Witnesses.</p> <p>In ah action for injuries sustained upon a defective sidewalk, a witness, who had attempted to repair the walk several days before the accident, was asked the following questions: “What can you say, after you had got through your work on that walk, whether or not it was in good repair?” and “What can you say as to whether or not it was in a reasonably safe condition for public travel ? ” The witness had already testified fully as to the condition of the walk, and what he did.in its repair. Held, that the questions calling for his conclusions were properly excluded.</p> <p>4. Same — Notice of Defect — Insufficient Repairs — Defenses.</p> <p>A village which has actual notice of a defect in a sidewalk cannot, by ordering it to be repaired by some one else, escape liability for an injury resulting from the defect, where the repairs were insufficient to render the walk reasonably safe for travel.</p> <p>5. Married Women — Action for Personal Injuries — Damages —Instructions—Correction of Misstatement.</p> <p>Where the charge, in an action for damages for a personal injury, included, as elements for which compensation should he awarded, medical attendance, nursing, inability to earn money, and loss of time, and, on suggestion of plaintiff’s counsel, in the presence of the jury, that she was a married woman, and could not recover therefor, such elements were eliminated by striking them from the charge, there was no error.</p>

Case by Daniel Fisk against the Wabash Railroad Company for the negligent burning of property adjacent to its right of way. From a judgment for plaintiff, with costs to defendant, plaintiff brings error.

<p>1. Surveys — Boundaries—How Determined.</p> <p>A boundary line between adjoining proprietors, unless fixed by agreement, acquiescence, or' adverse possession, is to be determined in accordance with the original government •survey.</p> <p>2. Same — Monuments and Measurements.</p> <p>The rule that monuments control courses and distances, and that, when monuments and measurements vary, the monuments always control, applies only to monuments and measurements made by the original survey.</p> <p>3. Same — Highways and Fences — Evidence.</p> <p>Therefore, an old fence or a highway, supposed to be upon the boundary line between two sections, but not shown to have been erected or laid out with any reference to the original survey, is not better evidence of the actual location of a disputed section corner than surveys made from the government field notes by subsequent surveyors.</p> <p>4. Same — Witnesses.</p> <p>Where a surveyor had testified in an action of trespass that he had located a disputed section corner at a given point by reference to the field notes of the government survey, and that he had discovered there traces of the stake driven by the government surveyor to mark the place, it was not a material inquiry whether existing fences would have to be changed under his survey.</p>

Case by Edward Lehman, an infant, by his next friend, against the Eureka Iron & Steel Works, for personal injuries. From a judgment for plaintiff, defendant-brings error.

<p>Error to Wayne; Simpson, J., presiding.</p> <p>Replevin by the Cappon & Bertsch Leather Company against the Preston National Bank of Detroit, Clarkson M. Snedicor, and others. Prom a judgment for plaintiff, defendant bank brings error.</p>

Julia A. Ewers presented a claim against the estate of John B. White, deceased. The claim was allowed by the commissioners, and the estate appealed to the circuit court. From a judgment for claimant, defendant brings error.

<p>Actions — Joint Trespassers.</p> <p>A joint action may be' brought by the owner of a stock of goods against a constable who levied an execution upon the stock, another constable who aided in the levy and subsequently took possession of the exemptions under a chattel-mortgage lease assigned to the execution creditor, and the attorney to whom the conduct of the whole business was intrusted by the latter, where, by their concerted action, the sale under execution was made before the hour advertised, and the exemptions were disposed of after the lien of the mortgage had been discharged by tender to each of the amount due under the lease.</p>

Assumpsit by the Fuller & Rice Lumber & Manufacturing Company against Joseph Houseman and another for goods sold and delivered. From a judgment for plaintiff, defendants bring error.

Bill by the A. P. Cook Company, Limited, against Marietta A. Bell, Henry C. Bell, John O. Sharp, and others, to foreclose a mortgage. From a decree dismissing the bill, complainant appeals.

<p>Error to Alpena; Kelley, J.</p> <p>Case by Carrie Hendricks against William F. Haskins and William Mulvena’for false imprisonment. From a judgment for plaintiff, defendants bring error.</p>

Clair; Vance, J. Bill by tbe Up River Ice Company to enjoin George Denler and Alice Denler from carrying on an ice business at Port Huron. Prom a decree dismissing the bill, complainant appeals.

Assumpsit by William T. Parker, county drain commissioner, against George V. Lincoln and others, to recover the costs and expenses incurred in certain drain proceedings instituted on defendants’ application. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Assumpsit by Joseph Weggner against Jacob Greenstine to recover a balance due upon a building contract. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Clair; Eldredge, J., presiding. Case by John M. Hoffman against the Flint & Pere Marquette Railroad Company to recover damages for the unauthorized use of the street in front of plaintiff’s premises. Prom a judgment for defendant on verdict directed by the court, plaintiff brings error.

Garnishment proceedings by Henry M. Ferry against the Home Savings Bank, as garnishee of the S. H. Davis Company. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Certiorari by Michael Brady to review the action of Hiram S. Hayward, county drain commissioner, and William H. Burgess, judge of probate, in locating and establishing the Black River drain. From a judgment declaring the drain proceedings invalid, defendants bring error.

, presiding. Bill by the John Hancock Mutual Life Insurance Company against Elizabeth Dick for the cancellation of a policy on the life of one John J. Dick, and for an injunction against the prosecution of an action at law thereon. From an order overruling her demurrer to the bill, defendant appeals.

Mandamus by Mathilde Coffin to compel the board of education of the city of Detroit to pay her the salary provided in her contract of employment as teacher in the city schools. From an order granting the writ, respondent ‘brings certiorari.

Mandamus by John W. Goodson to compel the board of health of the city of Detroit to páy him for extra services as clerk in the health department. From an order granting the writ, respondent brings certiorari. , The relator was appointed clerk in the health department of the city of Detroit at a salary of $100 per month, and was so employed from October, 1892, to January, 1895. In 1895 the board of health which employed him went out of office, and a new board was created.

Mandamus by John B. Duflo to compel Willard M. Lillibridge, circuit judge of Wayne county, to set aside an order dismissing a writ of certiorari allowed to relator for the review of certain drain proceedings.

Mandamus by Albert W. Ryerson to compel Joseph H. Steere, presiding circuit judge of Wayne county, to vacate an order setting aside the service of a summons in a suit against a foreign corporation.

<p>Error to Saginaw; Wilber, J.</p> <p>William Dunn was convicted of larceny, and sentenced to imprisonment in the state prison at Jackson for five years.</p>

Bill by Frederick W. Stock against the township of Jefferson and George E. Porter to enjoin the maintenance of a drain. From a decree for complainant, defendants appeal.

Clair; Eldredge, J.', presiding. Ejectment by Frank B. Petit against the Flint & Pere Marquette Railroad Company. From a judgment for defendant, plaintiff brings error.

Case by Grace E. Andrews, administratrix of the estate of Nicholas J. Andrews, deceased, against the Tamarack Mining Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.

Assumpsit by David L. Raymond against the Farmers’ Mutual Fire Insurance Company of Mecosta county upon a policy of insurance. From a judgment for plaintiff, defendant brings error.

<p>Error to Berrien; Coolidge, J.</p> <p>Trespass quare clausum fregit by Robert B. De Lapp against John T. Beckwith. From a judgment for defendant, plaintiff brings error.</p>

Bill by Christopher Cole, administrator of the estate of Lnman Beebe, deceased, against Henry Brown, Caroline Brown, Frank Brown, Alice Oxford, and -Elizabeth Denison, in aid of execution. From the decree rendered, defendant Caroline Brown appeals. On January 9,1895, complainant recovered a judgment at law against the deféndant Henry Brown for $918.08 and costs.

<p>1. Corporations — Assignments for Benefit of Creditors.</p> <p>An insolvent corporation has the right, unless prohibited by its charter or by statute, to make a general assignment of its property for the benefit of its creditors.</p> <p>2. Same — Authority of Directors.</p> <p>The directors of the corporation may make the assignment in such case without the assent of the stockholders.</p> <p>3. Same — Validity of Assignment — Presumption.</p> <p>An assignment by a corporation for the benefit of its creditors, duly executed and filed, is prima faoie valid, and the burden of proving its invalidity rests upon him who asserts the same.</p> <p>4. Same — Issue—Insufficient Evidence.</p> <p>The testimony of one of the directors of an insolvent corporation that he was not notified, as he knew of, of a meeting of the directors at which an assignment for the benefit of creditors was made, but that he was at one meeting, is insufficient to raise the question as to whether it was necessary to the validity of the assignment that all the directors should be present at the meeting at which it was executed.</p> <p>5. Same — Right of Assignee to Sue.</p> <p>The assignee of a corporation for the benefit of creditors may recover from a stockholder for goods wrongfully converted prior to the assignment, since under section 8739, 3 How. Stat., the assignee takes by the assignment all non-exempt property of the assignor, and all its rights, legal or equitable, and section 8741 provides that the assignment shall confer the right to recover all property, or rights or equities in property» which might he reached by any of the assignor’s creditors.</p> <p>6. Same — Transfer of Assets — Division of Surplus — Waiver.</p> <p>A stockholder in a corporation, who took in a new corporation, to which the assets of the former were transferred, stock equal in amount, without insisting upon a claim, which he advanced, but to which the other stockholders of the new corporation refused to accede, that the surplus of the old corporation should not be carried over to the new, but should be divided among the stockholders, has no valid claim against the new corporation, on account of such surplus, which will justify him in converting corporate assets to his own use after the new corporation has become insolvent.</p> <p>7. Same — Trover—Custom Among Stockholders — Evidenoe.</p> <p>In trover by the assignee of a corporation for the benefit of creditors against a stockholder for corporate property of the value of $5,000, converted by defendant to Iris own use after the corporation had become insolvent, one of the stockholders testified that he had a credit upon the books for loans to the corporation, in settlement of which he had taken out moneys at different times, and another stockholder testified that he had taken out small amounts upon various occasions, never to exceed §500, whio-n were properly charged to him, but that these occasions were nearly all prior to the time that the corporation became financially embarrassed. Held, that the evidence was insufficient to justify a submission to the jury of the question whether there was a custom among the stockholders which made it lawful for defendant to take the property.</p>

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

<p>Mandamus by the St. Clair Tunnel Company to compel Samuel W. Vance, circuit judge of St. Clair county, to set aside an order permitting an amendment to a declaration.</p>

Assumpsit by Mary Teagan Petherick against the General Assembly of the Order of the Amaranth on a mutual benefit certificate. From a judgment for plaintiff, defendant brings error.

, presiding. Charles E. Van Buskirk presented a claim against the estate of Sally Ann Van Buskirk, deceased, for an amount due on a promissory note. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for claimant, Robert W. Hoy, the administrator, brings error.

<p>1. Fraudulent Conveyances — Sale of Goods — Excess of Value Over Purchase Price.</p> <p>The fact that a stock of goods was sold by an insolvent debtor for an amount appreciably less than its value does not conclusively establish the fraudulent character of the transaction as to one from whom a part of the goods were fraudulently purchased by the debtor.</p> <p>3. Sale — Fraud—Bona Fide Transferee.</p> <p>Goods fraudulently purchased cannot be recovered by the vendor from one who has bought them in good faith and for value from the vendee.</p> <p>3. Trial — Order of Proof.</p> <p>Where evidence offered at the very commencement of a trial was excluded by the court with the remark, “I think you had better pass that for the present,” and the attention of the court was not again called to it, counsel is not in a position to assign error thereon, since the court has the right to direct the order of proof.</p> <p>4. Witnesses — Estimate of Value op Goods.</p> <p>A refusal to permit a witness to give the value of goods on the first floor of a store is not prejudicial, where it is not contended that this would enable the witness to fix the value of the whole stock, which is the fact in issue.</p> <p>5. Same — Interest in Suit.</p> <p>Plaintiff in replevin to recover possession of goods purchased through fraud by one defendant and sold by him to another defendant before the commencement of the suit may be cross-examined as to the several times and cases in which he has testified in regard to the title to the goods in suit, for the purpose of showing his interest in the controversy and in the subject-matter involved, and his anxiety to bring it to a successful issue.</p> <p>6. Trial — Objection to Evidence — Estoppel to Raise Question on Appeal.</p> <p>In replevin for a stock of goods, plaintiff’s witness testified on cross-examination that, at a time referred to in his direct examination, he knew that defendant E. claimed to own the stock and was in possession. He was then asked, “You knew, then, that defendants H. and B. were not claiming to be in possession, did you not ?” Plaintiff’s counsel objected to the question as incompetent, “for the reason that witness has not testified to any possession by either H. or B.” All of the testimony of the witness which was claimed to have established the possession' of H. was thereupon stricken out. Held, that counsel, by his objection to the cross-examination, estopped himself from claiming that the testimony stricken out was competent as having a tendency to show possession inH.</p> <p>7. Same — Conduct op Counsel — Discretion op Court.</p> <p>The tria! court may, in its discretion, permit a party to be called from the witness stand during cross-examination, and consulted by his counsel, and immediately recalled.</p> <p>8. Evidence — Letter Found in Street — Admissibility.</p> <p>The fact that a brother of plaintiff’s counsel, upon finding in the street a sealed envelope containing a letter from one of the defendants, placed the same in the hands of such counsel, instead of forwarding it to another of the defendants, to whom it was addressed, did not deprive the plaintiff of the right to introduce the letter in evidence.</p> <p>8. Same — Rejection of Competent Testimony — When Cured by Verdict.</p> <p>The exclusion of such letter was harmless error where the jury found against the only one of the defendants against whom it would have been competent.</p>

<p>Exceptions before judgment from Muskegon; Russell, J.</p>

Bill by Peter Kiley and others against Albert Bond, county drain commissioner, to enjoin the deepening and widening of a drain. Prom a decree for complainants, defendant appeals.

, presiding. Case by Rosella Menard against the city of Bay City for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Case by Alonzo J. Handy against the township of Meridian for personal injuries. Prom a judgment for defendant, plaintiff brings error.

Mandamus by Henry O. Smith to compel the Lake' Shore & Michigan Southern Railway Companydo issue a family mileage book. From an order granting the writ, respondent brings certiorari.

Creditor’s bill by Junius Ten Eyck against the Pontiac, Oxford & Port Austin Railroad Company, the Farmers’ Loan & Trust Company, and others. From a decree for complainant, the defendant companies appeal.

Assumpsit by William G. Thompson and another, trustees of the estate of Edmund A. Brush, deceased, against the city of Detroit, to recover taxes paid under protest. Erom a judgment for plaintiffs, defendant brings error.

Clair; Vance, J. Bill by Miles W. Palmer against James Palmer, administrator of the estate of John Palmer, deceased, and others, for the specific performance of a land contract. Prom a decree for defendants, complainant appeals.

Case by William Whalen against the Michigan Central Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error. Plaintiff, a locomotive engineer in the employ of the defendant, left Detroit for Chicago on the morning of October 13, 1893, in charge of a special passenger train of 11 coaches. Thirty minutes in advance of this was another special train, of about the same number.

<p>Equity Practice — Rehearings — Mandamus.</p> <p>Decree was entered against relator, without proofs, upon consent of his counsel. Subsequently he filed a petition with the circuit judge for a rehearing, asking that the decree be set aside, and that he be permitted to defend upon the merits. The petition, which was defective in that it was not accompanied by the certificate of counsel, as required by Chancery Rule No. 25, to the effect that they believed the decree erroneous in the particulars mentioned in the petition, was denied. Relator, although the lapse of time had not been such as to prevent the filing of a new petition, made application for mandamus to compel the circuit judge to set aside the decree and permit him to enter his defense. Held, that the peremptory writ should be denied, but without prejudice to the right to present the question anew, upon proper showing, to the circuit judge.</p>

<p>Husband and Wife — Extreme Cruelty — Separate Maintenance-Statutes.</p> <p>A husband who makes to his wife indecent and criminal proposals, is filthy in his habits about the house, inconsiderate of her tastes and enjoyment, neglectful of her in sickness, vile in his insinuations as to her relatives and friends, of • ungovernable temper, penurious, and unreasonable, and who-finally, upon her leaving home for a temporary visit to her son, sends out printed notices that she has left his bed and board, and forbidding all persons to extend credit to her on his account, is guilty of extreme cruelty, entitling her to a decree for separate maintenance upon petition filed under Act No. 243, Pub. Acts 1889, which provides that such a decree shall not be made unless, on the hearing, such a state of facts shall appear as would entitle the wife to a decree of divorce upon the grounds specified in the petition.</p>

Cross-appeals from superior court of Grand Rapids j Burlingame, J. Bill by William T. Powers against Wellington Hibbard and Peter Graff, Jr., to restrain the wrongful diver-. sion of water for power, and for an accounting. Defendants’ interest thereafter passed to Carl G. A. Voigt and William G. Herpolsheimer, who filed a bill of revivor and supplement, to which Powers filed an answer in the nature of a cross-bill.

<p>Appeal from Kent; Grove, J.</p> <p>Bill by William Hake against William Coach for a partnership accounting. From the decree rendered, defendant appeals.</p>

Assumpsit by Cyrus E. Perkins, probate judge of Kent county, for the use and benefit of May Cheney Hinman and Elsby Cheney, against Zerah V. Cheney, as surety on the guardian’s bond of Amherst B. Cheney, impleaded with Edwin Bradford, co-surety, and said Amherst B. Cheney. Prom a judgment for defendant on verdict directed by the court, plaintiff brings error.

George W. Kabat brings certiorari from an order adjudging him guilty of contempt for violation of a preliminary injunction issued in suit by Henry Joseph Richter and others against said George W. Kabat and others.

Bill by Alexander Lewis and Jerome Croul, trustees, against Camille Weidenfeld, the Detroit Gas Company, and the New York Guaranty & Indemnity Company, to foreclose a mortgage. From a decree for complainants, defendants appeal.

, 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.

Petition by Stanley W. Turner, auditor general, for the sale of certain lands delinquent for the taxes of 1893. Objections were filed by Roelof Kanaar. Prom a decree for petitioner, contestant appeals.

<p>Street Railways — Electric Cars —Inexperienced Motorman— Applying Brakes — Negligence—Question for Jury.</p> <p>In an action against a street-railway company for injuries sustained by a passenger who was thrown from the platform of an electric car by a sudden jolt due to the motorman’s losing control of the brake, which he had released for the purpose of getting a new hold, relying upon the dog, which he erroneously supposed to be caught in the notches of the brake rod, to hold it in place, it was a question for the jury whether the occurrence was a pure accident, or was due to a lack of skill on the part of the motorman, who was without experience.</p>

Assumpsit by Jacob Block and another against John Crawford and another for goods sold and delivered. From a judgment for plaintiffs, defendants bring error.

Certiorari by Dewitt A. Burnett to review the action of James Sw'aney, commissioner of highways of the township of Peninsula, Grand Traverse county, in laying out a highway. Prom an order dismissing the writ, plaintiff brings error.

<p>Appeal from Kent; Grove, J.</p> <p>Bill by Hiram Smith against Eliza O. Wakeman to reform a deed. From a decree dismissing the bill, complainant appeals.</p>

Assumpsit by James H. Flood and Thomas P. Flood against George Butzbach and Claus Schütz for goods sold and delivered. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.

Assumpsit by the Davis & Eagan Machine Tool Company against the Souvenir Wheel Company and Willis J. Perkins upon a promissory note. From a judgment for plaintiff, defendants bring error.

Bill by Costello C. Converse, administrator of the estate of James W. Converse, deceased, against Bertram W. Barnard and Mary J. Barnard, to foreclose a land contract and a contract supplemental thereto. There was a decree for complainant, and a sale made, after which, before confirmation, Mary J. Barnard petitioned for leave to file a bill of review. From an order denying the petition, she appeals.

Assumpsit by Joseph Golden against the Bartlett Illuminating Company for work and labor performed. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by Peter S. Brinkerhoff against George W. Peek to recover the purchase price of a promissory note. From a judgment for plaintiff, defendant brings error.

<p>Married Women — Promissory Note — Consideration.</p> <p>Defendant, who wished to obtain a loan for carrying on her husband’s business, made a promissory note for the amount required, due in one year, and secured the same by a chattel mortgage upon her separate property. Upon its appearing that the payee, plaintiff’s agent, would be unable to discount the one-year note, defendant’s husband gave his three-months , note, and the money was obtained on this note upon plaintiff’s indorsement. Defendant’s note and mortgage were delivered to plaintiff as security. Thereafter defendant gave her note in renewal of-the one on which the loan had been secured, and the security in plaintiff’s hands was canceled. Held, that defendant, by mortgaging her separat e property to secure the indebtedness, became liable for the debt, and was therefore liable on the renewal note.</p>

Assumpsit by Ophelia Satterlee against Woolsey Cronkhite to recover payments made upon a land contract. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Assumpsit by James C. Anderson against Ezra Al Cole, impleaded with Bradley B. Bennett, upon promissory notes. From a default judgment for plaintiff, defendant brings error.

'Albers, circuit court commissioner of Kent county. The Grand Rapids Savings Bank recovered a judgment against John Widdicomb. Execution having been returned unsatisfied, plaintiff applied to a commissioner for an order requiring defendant to appear and make discovery of his assets, under 2 How. Stat. chap. 278. The order was granted, and defendant removed the proceedings to this court by certiorari.

Mandamus by Frank S. Porter, probate judge of Ingham county, to compel William- M. Edwards, medical superintendent of the Michigan Asylum for the Insane at Kalamazoo, to receive an indigent insane person as a State charge.

Assumpsit by Eugene H. Hillyer against the township of Jonesfield to recover drain taxes paid under protest. From a judgment for defendant on demurrer to the declaration, plaintiff brings error.

Case by Lizzie McGill, an infant, by her next friend, against August Beitner and others, under the civil-damage act. From a judgment dismissing the suit for failure to file security for costs, plaintiff brings error.

<p>Error to Sanilac; Beach, J.</p> <p>Attachment proceedings by Joseph Warren against Warren Winterstein and others. From a judgment for plaintiff, defendant Winterstein brings error.</p>

Bill by Lawrence Poppe against Anna Poppe and Catherina Grevy to set aside certain deeds. Prom a decree dismissing tbe bill, complainant appeals. The purpose of this suit is to set aside two deeds, one made by complainant to defendant Grevy, and the other made by Mrs. Grevy to defendant Anna Poppe, the wife of complainant.

Clair; Vance, J. Quo warranto by the people, on the relation of George Oatman, against Patrick Fox, to determine the title to the office of supervisor of the township of Greenwood. From a judgment of ouster, respondent brings error.

Mandamus by Chase S. Osborn, state game and fish warden, to compel Roscoe L. Corbett, circuit judge of Charlevoix county, to dissolve a temporary injunction restraining the enforcement of certain laws regulating the taking of fish.

Mandamus by John F. Eddy and others to compel Andrew C. Maxwell, circuit judge of Bay county, to set aside an order requiring relators to produce certain books and papers for inspection.

<p>Error to Gogebic; Haire, J.</p> <p>Assumpsit by Julius J. Patek against Belmont Waples for professional services. Prom a judgment for plaintiff, defendant brings error.</p>

Mandamus by Edwin Gilson, administrator of the estate of Cornelius Gilson, deceased, to compel Dale Munson, supervisor of the township of Deerfield, to spread upon the tax roll against the lands of Adolph Knipping an amount awarded by the fence viewers as relator’s damages for building a finé fence. From an order granting the writ, respondent brings certiorari.

, presiding. Replevin by John Dállavo against Bert Morse. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Principal and Agent — Authority to Collect Mortgage— General Practice — Evidence.</p> <p>Evidence that one to whom certain mortgages were assigned made -it a practice to collect the interest and principal of such securities through a firm composed of his assignors, and later through a mortgage company in which they were the managing stockholders, either by express direction to make such collections in particular cases or by sending papers and discharges when informed that payments had been made, does not establish a general agency on the part of the mortgage company to collect all funds due the assignee, so as to render the latter bound by a payment to the company of the principal of a mortgage which it had no express authority to collect, and for which it failed to account.</p>

Petition by Stanley W. Turner, Auditor General, for the sale of certain lands delinquent for the taxes of 1894. Objections were filed by the Flint & Pere Marquette Railroad Company. From a decree for petitioner, contestant appeals.

<p>Error to Berrien; Coolidge, J.</p> <p>Assumpsit by Charles H. Burke against the Chicago & West Michigan Railway Company for professional services. From a judgment for plaintiff, defendant brings error.</p>

Bill by Delos A. Blodgett and Delos F. Diggins against John J. Foster and Henry N. Anderson for an accounting. From an order overruling a demurrer to the bill, defendants appeal.

<p>Error to Clinton; Daboll, J.</p> <p>Assumpsit by Frank A. Marshall and another against Albert J. Calkins on a promissory note. From a judgment for plaintiffs, defendant brings error.</p>

- Case by Josephus O. Selden against the village of St. Johns for personal injuries. From a judgment for plaintiff, defendant brings error.