Volume 116 — Michigan Reports

<p>Intoxicating Liquors — Sunday Closing.</p> <p>A saloon is open, within the contemplation of 3 How. Stat. § 2283e, requiring saloons to be kept closed during Sunday, where a door leading from the saloon into a hallway is left open, and people are allowed to enter the hallway, which does not connect with any room other than the saloon.</p>

<p>Error to Cass; Coolidge, J.</p> <p>Ejectment by Peter A. Tritt against Michael W. Hoover. From a judgment for plaintiff, defendant brings error.</p>

Mandamus by Louis Sands to compel James B. McMahon, circuit judge 'of Manistee county, to set aside a judgment for costs against relator, as defendant in an action for trespass.

Mandamus by Owen Young to compel Allen C. Adsit, circuit judge of Kent county, to set aside an order staying the prosecution of a suit at law.

<p>Appeal — Findings op Fact — Evidence—Review.</p> <p>The findings of the court in a case tried without a jury will not be disturbed on appeal if there is evidence fairly tending to establish them.</p>

Bill by Lucy Quick and others against Jane E. Raymond, executrix of the last will and testament of Mahlon H. Raymond, deceased, to declare a foreclosure’ decree satisfied, and to enjoin further proceedings thereunder. From a decree dismissing the bill, complainants appeal.

<p>Divorce — Desertion—Evidence.</p> <p>The testimony of the husband in divorce proceedings based upon the wife’s alleged desertion, that he never assented to her leaving him, and that she went away against his will/ supports a finding that the separation was against the will of the husband, although it appears from his cross-examination that he did not object to her taking her things and going, where his conduct in this respect is explained by his statement that he knew it would do no good for him to object.</p>

Bill by Lawrence C. Fyfe, trustee for the heirs of Mary A. Thresher, deceased, against Peter English and James Baley, for the cancellation of a mortgage. From a decree for complainant, defendants appeal.

<p>1. Promissory Notes — Added Recitals — Conditional Sale.</p> <p>An instrument in the form' of a promissory note, which contains a recital that the consideration for it and for certain other notes is a soda fountain, described in a contract of sale of even date; that the maker, to whom the apparatus has been delivered, is to acquire no title thereto until all the notes are paid; and that the payee is to have the right, in case of nonpayment at maturity of either of the notes, to “enter and retain immediate possession of the property, * * * and remove the same,” — imports an absolute, not a condi- ' tional, sale, with reservation of title by way of security.</p> <p>2. Same — Negotiability.</p> <p>The negotiability of such note is not impaired by the recitals as to the consideration and reservation of title.</p> <p>3. Same — Construction—Surrounding Circumstances.</p> <p>Whether the written contract of sale, executed some days before, in accordance with the terms of which the notes in question were given, could properly be examined by the court for the purpose of determining the character of the transaction as bearing upon the negotiability of the note, in case the recitals in the note had left the matter in doubt,— qucere.</p>

Judgment creditor’s bill by George L. Burrows and Amasa Rust, copartners as Burrows & Rust, against Edward W. Leech, survivor of himself and Patrick M. Gamble, deceased, copartners as E. W. Leech & Co., and Archibald G. Lindsay, individually and as receiver. Complainant Rust died pending the hearing, and the cause was revived in the name of complainant Burrows as survivor. From a decree dismissing the bill, complainant appeals.

Trover by Samuel H. Kelley, administrator with the will annexed of the estate of Maria A. Rowe, deceased, against Juan M. Guy. From a judgment for defendant, plaintiff brings error. Trover for the conversion of a promissory note for $500, executed by defendant to Maria A. Rowe, dated October 25, 1893, and payable five years after date.

Cross-appeals from Mackinac; Adams, J. Bill by Charles B. Fenton against Annie M. Wendell-Miller, Eva M. 'Wendell-McKinnon, and Romain I. Wendell, for a partition of real estate. From the decree rendered, complainant and defendant Romain I. Wendell appeal.

Trover by Frank E. Brown and John Sehler against Thomas J. G. Bolt. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.

Bill by Fred A. Kneeland and John H. Cole against Francis H. Hull and George E. Sprang to quiet title. Defendants filed an answer in the nature of a cross-bill. From a decree for defendants,' complainants appeal.

<p>Appeal from Wayne; Donovan, J.</p> <p>Bill by Thomas A. Parker against Oscar Barkenowitz and wife, in aid of execution._ From the decree rendered, complainant appeals.</p>

Bill by Thomas Fairbairn against George T. Moody, John J. Warren, and the Kalamazoo College, to enforce a mechanic’s lien. From a decree dismissing the bill, complainant appeals.

Bill by William C. Williams and others against Horace Baker, Daniel T. Hall, Abbie Fisher, Minor Davidson, W¡ F. Baker, and H. H. Baker, to foreclose a chattel mortgage, and to set aside other chattel mortgages as fraudulent. From a decree for complainants, defendant Abbie Fisher appeals.

Case by Hercules N. Meloche against the Chicago, Milwaukee & St. Paul Railway Company to recover the value of goods destroyed by fire while in defendant’s depot. Prom a judgment for plaintiff, defendant brings error.

Case by Gurdon Corning and others against the city of Saginaw to recover damages for an injury to plaintiffs’ barge caused by a defective draw-bridge. From a judgment for plaintiffs, defendant brings error.

Exceptions before judgment from Hillsdale; Lane, J. Fred Hughes was convicted of assault and battery. Respondent was convicted of assault and battery in the justice’s and circuit courts. The assault was committed at respondent’s house, at a spiritualistic seance. The complaining witness, Gordon, testified that he had been invited by respondent to come to his house to see and investigate these seances.

<p>Error to Wayne; Hosmer, J.</p> <p>Case 'by Hattie Brouso against John R. Gentle for malicious prosecution. From a judgment for plaintiff, defendant brings error.</p>

<p>Error to Benzie; Aldrich, J.</p> <p>Trover by Henry Smith against Neis Bye. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by Lewis Kunst against Joost Ringold for money had and received. From a judgment for defendant, plaintiff brings error.

Mandamus by James McQueen to compel the common council of the city of Detroit to pay to relator his salary as assistant boiler inspector. The writ was denied, and relator petitioned for the writ of certiorari. The relator was appointed assistant boiler inspector of the city of Detroit, duly qualified by filing his oath and bond, and held the position until July 21, 1897, when he was discharged by the inspector.

Bill by Paul Pulezer against Ignace Kucharzyk and John Pulezer, Jr., to establish a deed and contract alleged to have been fraudulently withheld from record. Prom a decree dismissing the bill, complainant appeals.

Trover by Francis Parker against Lester Canfield. From a judgment for plaintiff on verdict directed by the court, defendant brings error. Defendant, a deputy sheriff, under an execution against plaintiff, levied upon certain property belonging to him. He was' a farmer. After the levy, defendant, of his own motion, released the levy as to part of the property, on the ground that it was exempt. He retained the levy on 106 bushels of barley situated in plaintiff’s barn.

Bill by Grirvin Stevenson and. others against Frances Kurtz to set aside an administrator’s sale of real estate. From a decree dismissing the bill, complainants appeal.

<p>1. Garnishment — Past-due Note.</p> <p>A past-due promissory note is subject to garnishment.</p> <p>3. Same — Disclosure—Conclusiveness.</p> <p>A disclosure by a garnishee that he does not know whether or not a past-due note executed by him to the principal defendant was still in the latter’s hands at the time of service of process is not conclusive against his liability to the plaintiff, since the statute (3 How. Stat. § 8068) provides for a trial of the issue framed by the affidavit and the disclosure.</p> <p>3. Same — Nonresident Defendant — Substituted Service.</p> <p>The validity of the substituted form of service on the principal defendant in garnishment proceedings, where he is a nonresident, provided by 3 How. Stat. § 8087, does not depend upon the disclosure of the garnishee, although no judgment can be had in such case against the principal defendant unless some credits are found in the garnishee’s hands; as the existence or nonexistence of such credits is the subject of inquiry under section 8068.</p> <p>4. Same — Jurisdiction.</p> <p>The eourtsof this State may, by garnishee process, acquire jurisdiction over a nonresident defendant for the purpose of subjecting a debt due him from a citizen of the State to the payment of plaintiffs demand.</p>

Mandamus by William J. Thomas, clerk of the board of supervisors of Kent county, to compel Allen C. Adsit, circuit judge of said county, to dissolve an injunction restraining the submission to the electors of the question of borrowing money and levying a tax to erect a county pauper insane asylum.

Assumpsit by the Trump Manufacturing Company against the village of Buchanan to recover the purchase price of waterworks appliances. From a judgment for defendant, plaintiff brings error.

Petition by Stanley W. Turner, auditor general, for tbe sale of lands delinquent for the taxes of 1894. Prom 'a decree setting aside certain taxes upon objections filed by the Duluth, South Shore & Atlantic Railway Company and others, petitioner appeals.

<p>Error to Wayne; Hosmer, J.</p> <p>Assumpsit by Josephine Bedier against Jay Fuller, Hiram D. Willmarth, and Dennis J. Reaume for money had and received. From a judgment for defendants on verdict directed by the court, plaintiff brings error.</p>

Assumpsit by the Schiller Commandery No. 1, United Friends of Michigan, against Louis Jaennichen, John Groll, and Catherine Thomas for money had and received. From a judgment for defendants on verdict directed by the court, plaintiff brings error. The United Friends of Michigan is an incorporated fraternal beneficiary association, and is within the provisions of Act No. 119 of the Public Acts of 1893.

The Detroit Citizens’ Street-Railway Company, a corporation, and Jere C. Hutchins, its vice-president and treasurer, were convicted of violating an ordinance of the city of Detroit respecting the service of cars.

Summary proceedings by Edward J. McNaughton against John Evert, before a circuit court commissioner, to recover the possession of land. There was a judgment for complainant, and defendant removed the cause by certiorari to the circuit court, where the judgment was affirmed. Defendant brings error.

<p>Error to Wayne; Erazer, J.</p> <p>Replevin by James B. Yining and Donald Ferguson against Charles Millar and David W. Fox. From a judgment for plaintiffs, defendants bring error.</p>

<p>Error to Gogebic; Haire, J.</p> <p>Case by Wenzel Smizel against the Odanah Iron Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Cross-appeals from Kent; Grove, J. Bill by Caroline B. Frey and others against Jaco,b Eisenhardt and others to enjoin an administrator’s sale. From the decree rendered, complainants and defendants Mary Frey, Mary M. Oswald, and Chrisitan F. Frey appeal.

Assumpsit by Willis J. Perkins, doing business as Perkins & Co., against Louis J. Grobben and William Hitchcock, upon promissory notes. Erom a judgment for defendants on verdict directed by the court, plaintiff brings error.

Bill by Elizabeth Robinson, for herself and in behalf of others similarly entitled, against Mary Finch, for a construction of the will of Jane North, deceased. From a decree for defendant, complainant appeals.

Clair; Vance, J. Bill by Charlotte Flanagan against Howard Flanagan for a divorce. Defendant was adjudged guilty of contempt in refusing to comply with an order for temporary alimony, and was committed to the county jail until such alimony should be paid. He brings certiorari.

<p>1. Trial — Remarks of Counsel.</p> <p>A judgment for a railroad company in an action to recover for personal injuries will not be reversed because counsel for defendant said to the jury in his argument that they had evidently learned that damage suits for personal injuries had developed into quite a business.</p> <p>2. Same.</p> <p>A judgment for defendant will not be reversed because the trial court allowed counsel for defendant in his argument to the jury to comment on the fact that counsel for iilaintiff had objected to the admission of a writing signed by one of plaintiff’s witnesses.</p>

, presiding. Assumpsit by Rush Culver against Frank P. Nester to recover commissions on a sale of timber to defendant. From a judgment for plaintiff for less than the amount claimed, both parties bring error.

Assumpsit by George William Moore and George Whitney Moore against the Flint & Pere Marquette Railroad Company for services rendered. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.

Assumpsit by William C. Schafer against School District No. 1 of Baraga for the breach of a contract of employment. From a judgment for defendant on verdict directed'by the court, plaintiff brings error.

Assumpsit by the Colby Wringer Company against Edward S. Coon, as surety upon a bond of indemnity. From a judgment for plaintiff, defendant brings error. Suit on a bond of indemnity. Plaintiff, a Vermont corporation, made a contract with one Havens, by which he was appointed sole manager or agent for plaintiff in the city of Detroit to sell, upon terms and conditions fixed by it, and collect payment for, such goods as should be furnished to him.

<p>1. Probate Courts — Jurisdiction—Equity.</p> <p>Under 2 How. Stat. § 6760, providing that the judge of probate shall have jurisdiction of all matters relating to the settlement of the estates of deceased persons, the probate court has authority to determine whether a promissory note given by an executor to a legatee was accepted by the latter in payment of her legacy, upon a petition by the legatee to require the executor to account for her interest in the estate, even though the circumstances of the case are such that equity would also have jurisdiction of the controversy.</p> <p>2. Same — Appeal.</p> <p>An order denying such petition is appealable, under 2 How. Stat. § 6779, giving a right of appeal to any person aggrieved by any order, sentence, decree, or denial of a judge of probate.</p>

<p>1. Trespass — Justification—Writ of Assistance — Homestead.</p> <p>One who forcibly ejects a wife from her homestead cannot justify under a writ of assistance issued in a proceeding against the husband alone, instituted at a time when the wife was also in possession.</p> <p>2. Same — Evidence—Admissibility of Writ.</p> <p>In a suit for trespass to the person based upon the forcible removal of plaintiff from premises which she was occupying with her husband as a homestead, a writ of assistance directed against the husband, under which the defendant assumed to act, is admissible in evidence, not as a justification, but as a part of the res gestae, and as bearing upon the question of damages.</p> <p>8. Same — Punitory Dama&es.</p> <p>An instruction in trespass vi et armis that the jury may award damages “by way of punishment,” if defendant, in the commission of the trespass complained of, was actuated by malice or a reckless disregard of plaintiff’s rights, is erroneous; compensatory damages being the limit of recovery in civil cases, —at least where unaffected by statute.</p>

Bill by the Albion Malleable Iron Company and others, as creditors of the Elms Buggy Company, against the First National 'Bank of Albion, Henry M. Dearing, and others, for the construction of certain instruments whereby the property of the debtor became vested in defendant Dearing as trustee, and for an accounting. From a decree dismissing the bill, complainants appeal.

Ejectment by the people against Hulbert H. Warner and John D. Weeks. Prom a judgment for plaintiff on verdict directed by the court, defendants bring error.

Bill by Henry T. Wight and wife against Frederick A. Roethlisberger and Irving Woodworth to enjoin an execution sale. From an order overruling a demurrer to the bill, defendants appeal. The material averments of the bill are as follows: Complainants are owners in fee, as tenants by the entirety, of 44 lots of land in the city of Grand Rapids. The deed to them was executed August 31, 1895.

<p>Error to Saginaw; Snow, J.</p> <p>Replevin by Edward Germain against the Central Lumber Company. From a judgment for plaintiff, defendant brings error.</p>

Cross-appeals from Wayne; Haire, J., presiding. Judgment creditor’s bill by the Michigan Beef & Provision Company against John Coll and wife and the Wayne County Savings Bank. From a decree subjecting an undivided one-half interest in certain lands to the payment of complainant’s judgment, both parties appeal.

<p>1. Manslaughter — Undesigned Killing as Result of Unlawful Act — Abortion.</p> <p>A person who, while doing or attempting to do an unlawful act dangerous to human life, undesignedly kills another, is guilty of manslaughter at least, even though the act attempted was not unlawful at the common law. So held where the death of a woman pregnant, but not with a quick child, resulted from an attempt to procure a miscarriage by means of instruments, made punishable as a misdemeanor by 2 How. Stat. § 9108.</p> <p>2. Same — Information and Proof — Variance—Immaterial Allegation.</p> <p>An information for manslaughter, which clearly apprises the respondent that he is charged with causing the death of a pregnant woman through an unlawful attempt to procure a miscarriage, but alleges that the act was committed “with force and arms,” will support a conviction under proof that the deceased consented to the attempt; the question of consent being immaterial.</p> <p>3. Same — Evidence—Hearsay.</p> <p>The testimony of a physician summoned to attend a woman upon whom a criminal operation had been attempted, that he understood that certain money paid to him was paid on behalf of respondent, charged with manslaughter in causing the death of the woman by means of such attempt, is hearsay, and inadmissible.</p> <p>4. Same — Hostile Witness.</p> <p>The fact that such witness is adverse to the prosecution does not justify the introduction of such evidence.</p> <p>5. Same.</p> <p>Upon a prosecution for manslaughter in causing the death of a pregnant woman by procuring a miscarriage by means of instruments, statements made in the absence of respondent, by the midwife who was alleged to have performed the operation, that she was in the habit of performing them for the purpose of abortion and miscarriage, and describing the methods adopted, are inadmissible.</p>

, presiding. Garnishment proceedings by David W. Wheeler against the Dime Savings Bank, as garnishee of the Supreme Sitting of the Order of the Iron Hall.. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Case by Nettie Wood against Joseph Lentz under the civil-damage act. From a judgment for plaintiff, defendant brings error.

• Bill by Lester E. Rose, administrator of the estate of Augustus S. Glessner, deceased, against Cornelia Lockerby and others, to foreclose a mortgagé. From a decree for complainant, defendants appeal.

, presiding. Eugene A. Sunderlin, as acting commissioner of the state banking department, filed a bill for, and obtained, the appointment of a receiver for the Mecosta County Savings Bank. The petition of the Fourth National Bank of Grand Rapids, for the allowance of its claim as preferred, was denied, and petitioner appeals.

Mandamus by John J. Foster and Henry N. Anderson to compel William E. Grove, circuit judge of Kent county, to vacate an order permitting the complainants in a suit in chancery wherein relators are defendants to institute certain proceedings upon the law side of the court.

Bill by Robert Croskery and James Croskery, Jr., against William C. Busch and Jane A. Busch to enforce a lien upon land for taxes and improvements. From a decree for complainants, defendants appeal.

Assumpsit by the Fisher Electric Company against the Bath Iron Works, Limited, to recover a balance due for materials and labor. From a judgment for plaintiff, defendant brings error. Defendant, a corporation of Bath, Me., was, in 1891 f constructing two gunboats for the United States. September 9, 1891, it made a contract with plaintiff to install said boats with electric lights.

<p>Error to Benzie; Aldrich, J.</p> <p>Trover by the Crane Lumber Company against Elwin E. Bellows and another. From a judgment for plaintiff, defendants bring error.</p>

Clair; Vance, J. Case by Hazel Kaumeier, an infant, against the City Electric Railway Company, for personal injuries. From a judgment for plaintiff, defendant brings error.

, presiding. Bill by James Henry, Lemuel Saviers, George H. Scriver, Archibald B. Darragh, and Parker Merrill, residents and property owners- in the city of St. Louis, to enjoin the Ann Arbor Railroad Company from discontinuing its line of road through said city. From a decree dismissing the bill, complainants appeal.

Washtenaw; Kinne, J. Case by Yirgie A. Comiskie against the city of Ypsilanti for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Case by Jennie Rogers against the village of Orion for personal injuries. From a judgment for plaintiff, defendant brings error.

Case by Frank Gr. Seaman against tbe city of Marshall for the negligent flooding of his store building. From a judgment for plaintiff, defendant brings error.

The Peninsular Trust Company presented for probate the will of George M. Barker, deceased, which was duly allowed by the probate court. Silas Barker and Imogene Chappell appealed to the circuit. From a judgment for contestants, proponent brings error.

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

Assumpsit by John Neely and Thomas Neely against George Flumerfelt for goods sold and delivered. From a judgment for defendant, plaintiffs bring error.

Error t'o Wayne; McMahon, J., presiding. Assumpsit by Caroline C. Dowling against Charles F. Dowling for money had and received. From a judgment for plaintiff, defendant brings error.

Assumpsit by William E. Goodman and John F. Winkler against Rebecca L. Felcher for goods sold and delivered. From a judgment for plaintiffs, defendant brings error.

<p>1. Attachment — Motion to Quash.</p> <p>A trial of the issue in attachment proceedings cannot be avoided by a motion to quash based upon the merits, even if it be accompanied by a stipulation of the facts.</p> <p>2. Same — Dissolution—Review—Remedy.</p> <p>Certiorari, and not mandamus, is the proper remedy to review a ruling of the circuit judge upon an application to dissolve a writ of attachment under 2 How. Stat. § 8026.</p>

Mandamus by Charles S. Baxter to compel William G. Latimer, colonel of the 4th infantry of the Michigan National Guard, to vacate an order calling for an election of field officers. Edwin M. Irish, adjutant general, Henry B. Lothrop, and others intervened.

Mandamus by Alfred Wallerstein to compel the board of control of the state house of correction and reformatory at Ionia to approve a bond.

Case by Henry Henderson against the Detroit Citizens’ Street-Railway Company to recover' for expenses incurred in caring for his son, alleged to have been injured through defendant’s negligence. From a judgment for plaintiff, defendant brings error.

Cross-appeals from Wayne; Carpenter, J. Bill by Jennet F. Mueller, administratrix of the estate of John C. Mueller, deceased, against Robert J. Marsh, to set aside a judgment against the estate. From the decree rendered, both parties appeal.

Trespass de bonis by Robert Black and others against Samuel Simon and another. From a judgment for plaintiffs, defendants bring error.

Joseph Feather presented a claim against-the estate of Caroline Feather, deceased. The claim was disallowed in the probate court, and claimant appealed to the circuit. From a judgment for claimant, defendant brings error.

George Craig was convicted of carnally knowing a female under the age of 16 years, and sentenced to imprisonment for 20 years in the state prison at Marquette.

<p>Criminal Law — Bigamy—Defective Complaint — "Waiver.</p> <p>An objection that the complaint in a prosecution for bigamy was made by the husband of the respondent is waived by pleading to the information.</p>

Clair; Eldredge, J., presiding. In the matter of the application of the Flint & Pere Marquette Eailroad Company to abandon and take up its track between Yale and Zion stations, and to abandon the intermediate stations of Fargo and Hartsuff: Petition of William Williams and others for a refunding of contributions. From a decree dismissing the petition, petitioners appeal.

Mandamus by the Lake Shore & Michigan Southern Railway Company to compel George L. Yaple, circuit judge of Branch county, to settle a bill of exceptions. On March 19, 1897, verdict and judgment were entered against the relator. On March 20th an ex parte order was made granting relator until July 1st to settle a bill of exceptions. On June 26th relator entered a motion for a new trial, which was denied September 7th.

Case by A. Linley Griswold against the city of Ludington for personal injuries. From a judgment for defendant on verdict directed by tbe court, plaintiff brings error.

, presiding. Bill by the Union National Bank of Detroit against Charles A. Rich, trustee, and others, to compel the application of certain of the proceeds of a trust mortgage to the payment of a note held by complainant, and for other relief in connection therewith. From the decree rendered, complainant and certain of the defendants appeal.

Assumpsit by Sophia Petz against the Voigt Brewery Company, Limited, for rent. Prom a judgment in her favor for less than the amount claimed, plaintiff brings error.

Case by John S. Fowles, administrator of the estate of Alexander T. Fowles, deceased, against .Daniel W. Briggs and James Cooper, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Bill by the Pioneer Iron Company and the Arctic Iron Company against the city of Negaunee and others to restrain the collection of taxes. From a decree dismissing the bill, complainants appeal.

Bill by George Mullreed against Anna Clark-Thumb, impleaded with Thomas P. Clark and John F. Clark, for a partition of real estate. From a decree for complainant, defendant appeals.

<p>Exceptions before judgment from superior court of Grand Rapids; Burlingame, J.</p> <p>Isma Martin was convicted of larceny.</p>

Bill by Willard M. Potter against David D. Ranlett, Albert Tuttle, and Oliver C. Townsend to rescind a contract for the' purchase of land. Prom a decree for complainant, defendants appeal.

Case by Alexander C. Grattan against the village of Williamston for personal injuries. From a judgment for plaintiff, defendant brings error.

<p>1. Agency — Husband and Wife — Evidence.</p> <p>Evidence that plaintiff’s husband had general authority front her to act as her agent in purchasing contracts; that he had purchased several for her like the one in suit; that he was authorized to check her money out of the bank, signing her name to the checks, by himself, as agent; that, when the contract in suit was purchased, payment was made by giving such a check, together with certificates of deposit made to plaintiff, and indorsed in her name, by her husband as agent; and that he had authority to and did receive payments, upon the contracts,. — is sufficient to go to the jury on the question of the husband’s authority to accept a mortgage as payment of the contract in suit.</p> <p>2. Appeal — Denial of New Trial — Review.</p> <p>Alleged error in refusing a new trial will not be considered on appeal, where the record does not show why the trial judge refused the motion, and there is nothing to indicate that he was requested to give his reasons.</p>

Assumpsit by Annie W. Dowling against the Knights ' Templars & Masons’ Life Indemnity Company on a policy of insurance. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Assumpsit by the Drovers’ National Bank against Oliver Potvin on a promissory note. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Bill by Charles M. Wilson, receiver of the First National Bank of Mt. Pleasant, against Ammi W. Wright and others, to enforce an alleged trust. From a decree dismissing the bill, complainant appeals.

Bill by John Ayris against Henry Ayris and others to set aside certain deeds. From a decree dismissing the bill, complainant appeals.

Assumpsit by Allison L. Hitchcock against David S. Frackelton and others upon promissory notes. From a judgment for plaintiff, defendant Frackelton brings error.

Bill by William G. Lewick and others against Frank P. Glazier and the village of Chelsea to restrain the carrying out of a contract for waterworks. From a decree for complainants, defendant Glazier appeals.

Case by George E. Randall against the township of Southfield for damages caused by a defective bridge. From a judgment for plaintiff, defendant brings error.

Quo warranto proceedings by the people, on the relation of Willis O. Ward, against Hartwell Green and others, to inquire into the corporate existence of the Pontiac & Orchard Lake Gravel-Road Company. From a judgment for respondents, relator brings error.

Garnishment proceedings by William H. H. and Eversley Childs against Joseph G. Nordella and Rollin H. Owen, as garnishees of John T. and Theodore W. Elliott. Caroline S. Elliott claimed the fund as assignee, and had judgment. Plaintiffs bring error.

<p>Error to Wayne; Lillibridge, J.</p> <p>Case by Joseph LaPontney against the Shedden Cartage Company, Limited, for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Mandamus by Lucy A. Webb to compel the board of health of the city of Detroit to audit a claim for damages. From an order denying the writ, relator brings certiorari.

<p>1. Evidence — Instructions.</p> <p>It is error for the court to exclude testimony tending to show that a trust mortgage purporting to be executed by a corporation was not authorized by the board of directors, and afterwards leave it to the jury to determine whether it was authorized or not.</p> <p>2. Estoppel — Mortgages—Defective Execution.</p> <p>The fact that the holder of an indorsed note of a corporation had some correspondence and conversation with the indorsers, advising them to take security for their claims, and thereby protect his interests as well as their own, and that, after what purported to be a trust mortgage for the benefit of all the creditors had been given to one of the indorsers, he wrote the latter with reference to his management of the business, will not estop him from attaching the property under a claim that the mortgage was never authorizedjby the directors of the corporation, and that he had never assented thereto, where he acted in entire ignorance of the fact that the indorsers were insolvent, and had covered up their individual property, and of the fact that the mortgage was unauthorized.</p>

Bill by John Mains against the Homer Steel-Fence Company, Charles R. Mains, and Horace V. Swartwout for an accounting and for other equitable relief. From a decree dismissing the bill on pleas in bar thereto, complainant appeals.

Case by Mary E. Butts against the city of Eaton Rapids for personal injuries. From a judgment for plaintiff, defendant brings error.

Bill by Thomas J. Sheridan against the Peninsular Savings Bank of Detroit, and others, for the cancellation of a contract and for other relief. From a decree for complainant, defendants appeal.

Myron P. Foglesong was convicted of murder in the first degree, and sentenced to imprisonment for life in the state prison at Jackson.

, presiding. Assumpsit by the city of Detroit against Marcellus Gleason for rent. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

<p>Mandamus by Joseph Defoe to compel Andrew C. Maxwell, circuit judge of Bay county, to vacate an order dismissing an appeal from probate court.</p>

Mandamus by John Graham and others to compel R. Andrew Fleming, clerk of the county of Muskegon, to record the articles of association of the Moorland Methodist Episcopal Church, preferred under Act No. 110, Pub. Acts 1895.

In the matter of the petition of the auditor general for the sale of lands delinquent for the taxes of 1894: On objections filed by Edward W. Sparrow and others. All parties appeal.

. Certiorari by John M. Thomas, drain commissioner of Kent county, to review the decision of the township board of the township of Walker upon an appeal from an assessment for drain benefits as made… Held: survey made, and the drain oi'dered. A special drain assessment district was established, and the cost of the improvement was computed, and apportioned between the two counties. Sixty per cent, was apportioned to Ottawa county, and 40 per cent, to Kent county.

, presiding. Bill by Christine Schulz, by Charles Schulz, her guardian, against Joseph Brohl, to quiet title. From a decree dismissing the bill on demurrer, .complainant appeals.

<p>Appeal — Review on Findings — Assignments of Error.</p> <p>Where a ease is tried before the court without a jury, and no exceptions are taken to the findings of fact and law by the court, the only question that can be raised upon appeal is whether the findings support the judgment; and that question is not open for consideration unless it is made the basis of an assignment of error.</p>

Assumpsit by William H. Miller against August R. Hahn to recover moneys paid to defendant, as deputy sheriff, to satisfy an execution issued upon a void judgment.. From a judgment for defendant, plaintiff brings error.

Case by Frederick L. Gilbert and Isabella I. Webster against the Michigan Central Railroad Company for negligently setting fire to plaintiffs’ land. From a judgment •for plaintiffs, defendant brings error.

Mandamus by Archibald J. McKillop to compel the board of supervisors of Cheboygan county to allow a claim for services as health officer during an epidemic of diphtheria. From an order denying the writ, relator brings certiorari.

<p>1. Promissory Notes — Evidence.</p> <p>In an action on a note, defendant was permitted to cross-examine plaintiff as to his knowledge of a co-maker’s insolvency, and the conveyance of some of his property to plaintiff. There was no pretense that the property was conveyed for the purpose of paying the note. Held, prejudicial error.</p> <p>2. Same — Comparison of Handwriting.</p> <p>In an action on a note, defendant claimed that the instrument had been altered, without his consent, by filling in a space which he had left blank. Held, that it was error to permit him to put in evidence other notes written by him, for the purpose of having the jury compare the handwriting.</p>

<p>1. Chattel Mortgages — After-acquired Property —Sales by Mortgagor.</p> <p>A mortgage of a stock of goods is not void as against the creditors of the mortgagor because it covers after-acquired goods, and permits the mortgagor to sell in the usual course of trade, and apply the proceeds to his own use. Reaffirming Louden v. Vinton, 108 Mich. 313.</p> <p>3. Same — Trover by Second Mortgagee — Limit of Recovery.</p> <p>The holder of a second mortgage upon chattels may maintain trover against one who has wrongfully converted them, without paying or tendering the-amount of a judgment theretofore recovered against the defendant for the conversion of the interest of the prior mortgagee, and may recover in the action such portion of the value of the property converted, up to the amount of his claim, as remains after satisfying the former judgment.</p>

Assumpsit by Caliphurnia B. Phelps and others against Charles S. Abbott for goods sold and delivered. Erom a judgment for plaintiffs on verdict directed by the court, defendant brings error.

Assumpsit by Thomas Conlin against the Lamont Iron Company for work and labor. From a judgment for plaintiff, defendant brings error.

Mandamus by Henry B. Hammond and others to compel Charles S. Place, assessor of the city of North Muskegon, to assess against the taxable property of the city the amount of a judgment recovered by relators. Prom an order granting the writ, respondent brings certiorari. June 11,1896, the relators recovered a judgment against the city of North Muskegon for $1,393.60.

Bill by Katherine Loth against Alvina L. Loth to foreclose a mortgage. Decree for complainant. Defendant appeals from the denial of her petition for leave to file a bill of review.

Assumpsit by Lars R. Sogge against Jacob Scbw'artz upon an account stated. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by John G. Rumney against the Detroit & Montana Cattle Company and its stockholders for the appointment of a receiver. From a decree for complainant, defendants appeal.

<p>Error to Jackson; Peck, J.</p> <p>Assumpsit by Lucius B. Brockett against Daniel P. Sagendorpb upon a promissory note. From a judgment for plaintiff, defendant brings error.</p>

<p>Mortgages — Execution — Certificate of Acknowledgment — Presumption.</p> <p>A certificate of acknowledgment of a mortgage, in proper form, raises a presumption of the execution of the paper as stated therein.</p>

Assumpsit' by the McCormick Harvesting Machine Company against George M. Cusack for the purchase price of a binder. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Case made from Kent; Adsit, J. Quo warranto proceedings by the people, on the relation of William J. Ryan, against Charles H. Van Anden, to try the title to the office of inspector of buildings of the city of Grand Rapids. Relator had judgment, and respondent assigns error.

, presiding. Proceedings by Allen Kirkpatrick against Frank Bessalo under 1 How. Stat. § 4886 et seq., to enforce the in dividual liability of defendant for goods sold to a corporation in which he was a stockholder. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Case made from Houghton; Haire, J., presiding. Proceedings by Allen Kirkpatrick against Joseph Costo under 1 How. Stat. § 4886 et seq., to enforce the individual liability of defendant for goods sold to a corporation in whieh he was a stockholder. Plaintiff had judgment, and defendant assigns error.

Petition by Carrie Mansfield Hough against the auditor general and G. Burton Harris to set aside a tax sale. Prom a decree for petitioner, defendant Harris ■ appeals.

Mandamus by Arend Visscher, prosecuting attorney of Ottawa county, to compel Philip Padgham, circuit judge of said county, to vacate an order dismissing the petition of the auditor general for the sale of lands delinquent for the taxes of 1895.

<p>1. Divorce — Collusion—Evidence in Former Suit.</p> <p>It being the duty of courts to see that no divorce is obtained by collusion between the parties, the circuit judge may, in a suit in which defendant fails to appear, order in evidence, and consider, the pleadings and proofs in a former suit between the same parties, in which a decree was denied.</p> <p>2. Appeal — Record—Omitted Evidence.</p> <p>Affidavits claimed to have been introduced in the trial court cannot be considered on appeal where they are not made a part of the record.</p>

Mandamus by the Seventh-Day Adventist Publishing Association to compel the board of state auditors to award to relator the contract for the state printing.

Bill by Francis Jordan, trustee, against John C. Newton and others, as assignees of certain railroad-aid notes executed by Abel W. Wells and others, impleaded in the suit, to determine as to the ownership of the notes. Complainant died pending decree, and Orville O. Jordan, his executor, was substituted as complainant in his stead. From a decree declaring the notes invalid, defendant assignees appeal.

<p>Appeal — Denial oe New Trial — Review.</p> <p>To present a case for review under Act No. 134, empowering the Supreme Court to review orders overruling motions for new trial, a statement of the reasons given by the circuit judge for his ruling must be incorporated in the bill of exceptions. Pub. Acts 1893,</p>

Assumpsit by Clarence Mero against Charles F. Button and Otto Olson, impleaded with James George, upon an account for work and labor. Plaintiff had judgment in justice’s court, which was affirmed in the circuit on certiorari. Defendants bring error.

Mandamus by Emily Lorimer to compel William L. Carpenter, circuit judge of Wayne county, to allow relator a jury trial of issues sought to be raised by an appeal from an order of the probate court.

Case by Paulina Hamilton against Adam C. Arnold for assault and battery. There was a judgment against defendant, from which M. V. Barker, his administrator) brings error.

Summary proceedings before a justice of the peace by the Grand Rapids National Bank against Magdalena Kritzer and others to recover the possession of land. Complainant prevailed before the justice, and defendants appealed to the circuit court. From a judgment there for defendants on verdict directed by the court, complainant brings error.

Case by Jennie B. Schmoltz against Frank E. Schmoltz and Jacob Schmoltz for deceit and conspiracy to defraud. From a judgment for defendants on demurrer to the declaration, plaintiff brings error. Plaintiff and defendant Frank E. Schmoltz are husband and wife. They were married in 1888. They have one child, about eight years old. They lived together as husband and wife until January 2, 1897, when they separated. Two days after, they made an agreement of settlement.

Assumpsit by Edward Sweeney against Adolph Lust-field upon a bond to stay execution on a justice’s judgment. From a judgment for plaintiff on verdict directed by the court, defendant brings, error.

, presiding. Assumpsit by Wilber Russell against the North American Benefit Association upon an award made under a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiff brings error,