Volume 117 — Michigan Reports

Mandamus by Henry M. Keeler, director, James Simmons, moderator, and George A. Chase, claiming to be assessor, of school district No. 1 of North Branch township, to compel John N. Deo, township treasurer, to pay certain school funds to the relator Chase upon warrants drawn by the other relators. From an order granting the writ, respondent brings certiorari.

Assumpsit by John'W. Rawlinson against Solomon B. Shaw to recover damages growing out of the breach of a contract to publish a book. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Error to Benzie; Aldrich, J.</p> <p>Ejectment by Amy A. Wheelock against Emma J. Lake and Merrill L. Lake. Erom a judgment for defendants, plaintiff brings error.</p>

Case by Inman Smith against the township of Walker to recover the value of a horse drowned on defendant’s highway. From a judgment for plaintiff, defendant brings -error.

<p>Mandamus by Frank H. Jerome and others to compel Joseph W. Donovan, circuit judge of Wayne county, to dismiss an appeal from probate court.</p>

Assumpsit by Henry W. Gray, receiver of the United States Mutual Accident Association of New York, against Homer R. Josselyn, for money had and received. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Ejectment by Richard S. Hubbard against Fannie J. Shepard and Elisha H. Shepard. From a judgment for plaintiff' on verdict directed by the court, defendants bring error.

Bill by Louisa Biddle against William S. Biddle, executor of the last will and testament of Eliza E. Biddle, deceased, and others, for a partition of real estate devised under said will. From a decree for complainant, an appeal was taken by one of the defendants, Eliza B. Williams, for the purpose of obtaining the sanction of the Supreme Court to the proceedings.

Case by the Aldrich Car-Seal Manufacturing Company against the American Express Company for an alleged failure to deliver a package at an agreed time. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff brings suit for damages for alleged failure to deliver-a package at the United States treasury department, Washington, D. C., before 2 o’clock p. m., July 1, 1896. The facts in this case are not in dispute.

<p>Mandamus by Ralph Phelps to compel Joseph W. Donovan, circuit judge of Wayne county, to set aside an order vacating an award by arbitrators.</p>

<p>Error to Kent; Adsit, J.</p> <p>Assumpsit by Charles Morse against Duane Blanchard, impleaded with Elmer E. Johnson, on a promissory note. From a judgment for plaintiff, defendant brings error.</p>

Case by ‘William Trebilcock against Andrew E. Anderson for libel. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Petition by Harriet C. Featlierly against John M. Hoffman and the auditor general to set aside a tax sale. From a decree for petitioner, defendants appeal.

' Bill by John A. May, receiver of the Ingham County Savings Bank, against Holland J. Cleland, Sidney Edson, Frederick Thoman, Philip Perkins, and the Michigan Knitting Company, to foreclose a lien on certain shares of stock in the defendant corporation. From a decree for complainant, defendant Thoman appeals.

Assumpsit by James H. Rough and others against Edward N.1 Breitung upon a contract of sale. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.

<p>Error to Eaton; Smith, J.</p> <p>Trespass guare clausum fregit by Henry Husted against Samuel Willoughby. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by William W. Morgan against Hiram F. Jones and Henry H. Jenison on a special bail bond. From a judgment for defendants on verdict directed by tbe court, plaintiff brings error.

Case by George E. Jewell against Patrick Welch, a saloon keeper, and Herbert Babcock and Andrew Haberstumpf, his bondsmen, under the civil-damage act. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Case by Grant E. Miller against Henry Lachman for alienating the affections of plaintiff’s wife. Prom a judgment for plaintiff, defendant brings error.

Summary proceedings by Bryant Walker, administrator de bonis non with the will annexed of the estate of Corydon L. Ford, deceased, against Truman S. Fisher, to recover the possession of land. The commissioner found for complainant, and from a judgment of the circuit court, affirming the decision, defendant brings error.

<p>1. Names — Idem Sonans,</p> <p>The names “Ellen Macier” and “Ellen Marcier” are idem sonans.</p> <p>2. Same — Taxation—Assessment.</p> <p>Where one's name is misspelled on a tax roll, and a name idem sonans employed, it will be presumed that he was the one intended to he assessed.</p>

Bill by Frances M. Scudder against the city of Detroit to restrain the enforcement of a paving assessment. From a decree dismissing the bill on demurrer, complainant appeals. Complainant owns lot No. 7, block 4, in Henry Weber s subdivision of parts of sections 55 and 56, Ten Thousand Acre Tract, in Detroit.

Case by Emma S. Bandfield against Charles A. Band-field for personal injuries. From a judgment for defendant on demurrer to the declaration, plaintiff brings error.

Case by William J. Lillibridge against Orlando B. Mc-Cann for negligently causing the destruction of plaintiff’s buildings by fire. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Petition by Frank Foegan against George W. Carpenter and Roscoe D. Dix, Auditor General, to set aside a sale of land for delinquent taxes. From a decree for petitioner, defendant Carpenter appeals.

Petition by George W. Carpenter against Arthur Jones and wife for a writ of assistance to put him in possession of lands purchased of the State for delinquent taxes. Defendants filed a cross-petition for the cancellation of the auditor general’s deed, and decree was rendered thereon in their favor. Petitioner appeals.

<p>Error to Kalamazoo; Buck, J.</p> <p>Ejectment by John H. Mowers against George M. Evers and Lucinda Evers, impleaded with Patrick H. Gilkey. From a judgment for defendants, plaintiff brings error.</p>

Bill by Sophia Knapp against Judson M. Perry and others to reform a deed and mortgage. Complainant appeals from an order denying her petition for leave to file a bill of review.

Assumpsit by William E. Denison against the Alpena Loan & Building Association to recover an amount due plaintiff as a withdrawing stockholder of defendant corporation. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

<p>Land Contract — Vendor’s Lien — Tender.</p> <p>Although a contract for the sale of land, consisting of two writings, one executed by the purchaser and left with the vendor, providing that the latter, on payment in full of the purchase price, shall give “a deed of all his interest” in the land, the other executed by the vendor and left with the purchaser, requiring the execution of a “ warranty deed ” by the vendor, entitles the purchaser to a warranty deed, an assignee of the vendor, who has no knowledge of the terms of the Writing signed by the latter, does not lose his lien on the land, or his right to after-accruing interest, by refusing a tender of the purchase money on condition that he deliver a warranty deed.</p>

<p>Error to Wayne; Lillibridge, J.</p> <p>Ejectment by George L. Beecher against Alfred Eerris, •impleaded with Osman B. Oanney. From a judgment for defendants, plaintiff brings error.</p>

Case by Jacob Pilucki against the Detroit Steel & Spring Works for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

, presiding. Bill by Charles H. Ingles and others against Andrew J. Bryant and others to determine the right to the possession of church property. A consent decree was entered for complainants, and defendants thereafter petitioned for leave to file a bill of review. From an order denying the petition, defendants appeal.

Assumpsit by Richard W. Allen against Louis Dubois upon a promissory note. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by the Citizens’ Savings Bank against Jacob Kock and the American Brass & Metal Works for the appointment of a receiver. After the appointment of a receiver, David W. Fox intervened, and asked for an allowance for services as constable. From a decree granting the same, complainant appeals.

Case by George W. Devereaux against William A. Hubbard and Addie J. Hubbard for fraudulently inducing plaintiff to sell and exchange certain lands. From-a judgment for defendants on verdict directed by the court, plaintiff brings error.

Assumpsit by the Strawberry Point Bank against E. C. Lee and others upon a promissory note. Prom a judgment for defendants on verdict directed by the court, plaintiff brings error.

Mandamus by Emil Christopherson to compel the common council of the city of Manistee, acting as a board of canvassers, to issue to relator a certificate of election to the office of supervisor.

Certiorari by Alfred Jackson to review the action of the auditor general in issuing certain certificates of error upon the application of Eugene H. Sloman.

<p>Error to Wayne; Aldrich, J., presiding.</p> <p>Replevin by George W. Saunders against John J. Gloss and George H. Fowler. From a judgment for defendants, plaintiff brings error.</p>

Garnishment proceedings by James K. Burnbam and others against the Interstate Casualty Company of New York, as garnishee of Eva Winans. From a judgment for plaintiffs, the garnishee defendant brings error. The appellant is garnishee of the principal defendant in several suits that were consolidated and tried as one. The suits were commenced August 29, 1896.

<p>Appeal from Ionia; Daboll, J., presiding.</p> <p>Bill by Burton Babcock against Joseph Young, Ellen Young, John Burke, and Charles Green to foreclose a mortgage. From a decree dismissing the bill, complainant appeals.</p>

, presiding. William H. Fox presented a claim against the estate of Eliza Barrett, deceased. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for claimant, defendant brings error.

<p>Loot Liens —Nonresident Owner — Service of Process —Justices’ Courts — Adjournment.</p> <p>While service of a writ of attachment in proceedings instituted in justice’s court to enforce a lien for labor on logs may, under 3 How. Stat. § 8437/, be made on the agent of the owner, where the latter is not the defendant named in the writ, and is a nonresident of the State, the plaintiff is bound in such case, under section 84277c, providing that the proceedings shall follow the general statute, “ except as herein otherwise provided,” to cause an adjournment to be taken for 30 days, in accordance with 2 How. Stat. § 6846.</p>

Case made from Menominee; Stone, J. Assumpsit by August Kennard against James Lillie to recover the amount of a lien upon logs alleged to have been converted by defendant. There was a judgment for plaintiff, and defendant assigns error.

<p>1. Writ and Process — Service—Summary Proceedings.</p> <p>Under 2 How. Stat. § 8298, requiring service of the summons in summary proceedings to recover the possession of land to be made “at least two days before the time of appearance mentioned therein,” the day of service, as well as an intervening Sunday, is to be excluded, and the appearance-day included, in the computation.</p> <p>2. Same — Substituted Service — Jurisdiction.</p> <p>In such case, a return of substituted service, made before the expiration of the time within which personal service might lawfully be made, is insufficient to confer jurisdiction.</p>

<p>Mandamus by Edward C: Hoyt to compel Joseph W. Donovan, circuit judge of Wayne county, to permit relator to file an amended declaration.</p>

<p>1. Taxes — Attempted Payment — Remedy against Deed — Ejectment — Evidence.</p> <p>While a good-faith attempt by a landowner to pay his taxes to the proper officer, which attempt is rendered unavailing by the mistake or fault of the latter, is equivalent to a payment, entitling the former to the benefit either of section 70 or of section 98 of the tax law (Act No. 206, Pub. Acts 1893), providing, respectively, that the court may set aside a sale, in case the tax had been paid, upon application made by the owner within one year after receiving notice of the sale, and that the auditor general, on discovering that a tax had been paid before sale, may withhold a conveyance or issue a certificate of error, as the circumstances may require, the owner must resort to one or the other of the remedies so prescribed, and,- not having done so, cannot set up the facts to defeat an action of ejectment brought by the holder of the tax deed.</p> <p>2. Same — Authority oe Auditor General.</p> <p>The auditor general, in determining the facts as the basis for his action under the .last-mentioned section, may consider any competent proofs, subject to a review by the courts in a proper proceeding.</p>

, presiding. Assumpsit by. the Lansing National Bank against Merritt L. Coleman for moneys had and received. From a judgment for defendant, plaintiff brings error. Defendant admits his indebtedness to plaintiff in the sum of $600, for the recovery of which this suit is brought. He claims a set-off of $690, due him for declared dividends as a stockholder of the plaintiff.

Exceptions before judgment from Yan Burén; Buck,J. John Bacon was convicted of violating the local option law. Respondent was convicted of keeping a place where intoxicating liquors were sold, given away, or furnished, contrary to the local option law in force in Yan Burén county.

<p>1. Statutory Rape — Consent—Conclusive Presumptions.</p> <p>A female under the age of 16 years is, under the statute, conclusively presumed to be incapable of consenting to sexual intercourse.</p> <p>2. Marriage — Legality—Evidence.</p> <p>The presumption from proof of a marriage ceremony by an officer authorized to perform it is in favor of the legality of his act.1</p> <p>3. Guardian and Ward.</p> <p>A stepfather is not a natural guardian of an orphan child.</p> <p>4. Witnesses — Husband and Wife.</p> <p>A wife is not a competent witness against her husband upon a prosecution for rape, based upon his having had intercourse with her before their marriage, while she was yet under the age of consent.</p>

, presiding. Bill by Adolph Robinson and Sigmund Aronheim against Joseph Kunkleman and George Lovely for a set-off of judgments. From an order overruling a demurrer to the bill, defendant Lovely appeals.

Bill by Joseph Zlotoecizski and Tofila Zlotoecizski against Rawson Smith, Arthur H. Swarthout and wife, and Herman Brandt and wife, to set aside a foreclosure sale. From a decree for complainants, defendants appeal.

Mary Loeser appealed from an order of the probate court allowing the final account of Frederick Zimmer, as administrator of the estate of Gustav Pfeffer, deceased. The order of the probate court was modified in the circuit, and the administrator brings error.

Case made from Antrim; Corbett, J. Assumpsit by the Elk Rapids Iron Company against the townships of Helena and Milton to recover taxes paid under protest. Judgments were rendered for defendants, and plaintiff assigns error. Plaintiff is a manufacturing corporation carrying on chemical works, an iron furnace, and a sawmill. It is located in Elk Rapids, where are its plants, stores, offices, and place of business.

Certiorari by the township of Harrison, by Burton A. Craver, supervisor, to review the proceedings of the board of supervisors of Schoolcraft county in detaching territory from the township of Harrison and attaching it to the township of Inwood. The circuit court dismissed the writ, and plaintiff brings error.

Assumpsit by Daniel C. Maxson against the Michigan Central Railroad Company for the breach of an alleged contract to continue plaintiff permanently in its employ. From a judgment for plaintiff, defendant brings error. In 1887 plaintiff was in the employ of the defendant in its yards at Jackson, Mich., and while coupling cars lost his arm. He was employed by one J. D. Clark, an assistant train-master.

, presiding. Bill by the Citizens’ Savings Bank against Jacob Kock and Wilhelmina Kock to foreclose certain' mortgages. From a decree for complainant, defendants appeal.

<p>1. Justices or the Peace — Attachment—Substituted Service.</p> <p>Substituted service of a justice’s attachment is void if the return of the officer fails to show that diligent search was made for the defendant during the whole time within which personal service might lawfully be made. Brown v. Williams, 89 Mich. 755, followed.</p> <p>2. Replevin — Right or Possession — Pledge.</p> <p>A creditor of a pledgor, who, with the consent and subject to the rights of the pledgee, attaches the property pledged, holds as the representative of the pledgee, and can maintain his possession, regardless of the invalidity of the attachment, as against one whose lien is subordinate to that of the pledgee. So held, where the property was sought to be replevied by one who claimed it as security under an unrecorded instrument of which the pledgee had no notice.</p>

Assumpsit by Charles H. Going against the Oakland County Agricultural Society to recover moneys paid upon certain land contracts. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Case by David A. Cornell against the Manistee & Northeastern Railroad Company to recover the value of stock killed on defendant’s track. From a judgment for defendant, plaintiff brings error.

Mandamus by James Roach to compel Willard M. Lillibridge, circuit judge of Wayne county,to vacate an order extending the time in which to settle a bill of exceptions.

Mandamus by Dolina L. Wright to compel Charles H. Wisner, circuit judge of Genesee county, to set aside an order dismissing a petition for temporary alimony.

Mandamus by George B. Morley and Homer Loring, receivers of the Union Street-Railway Company of Saginaw, to compel Byron A. Snow, circuit judge of Saginaw county, to vacate an order requiring relators to discontinue the use of the Mehling system for the collection of car fares.

Petition by Charles Yleit against John M. Hoffman and the auditor general to set aside a tax sale. From a decree for petitioner, defendants appeal.

Garnishment proceedings by George W. Webber and Andrew J. Webber against Mary A. Hayes, as garnishee of Nathan B. Hayes. From a judgment for plaintiffs, the garnishee defendant brings error.

Exceptions before judgment from Gladwin; Sharpe, J. Howard Seeley was convicted of knowingly and unlawfully appropriating public funds to his own use.

Assumpsit by Joseph J. Harvey, as assignee of Henry Gamble, against Archibald G. Lindsay, Frederick Marvin,. and De Forest Paine, for a commission on the sale of land. From a judgment for plaintiff, defendants bring error.

<p>1. Railroads — Crossings—Duty of Traveler.</p> <p>Listening for signals of approaching trains is not the whole duty of one who approaches a railroad crossing, hut he should be alert, and pay attention to the track.</p> <p>2. Same — Warning Signals.</p> <p>Recovery for an omission to give proper signals cannot be had in any case where the traveler approaching the crossing had, by any means, timely notice of the approach of the train.</p> <p>S. Same — Runaway Team — Proximate Cause op Injury.</p> <p>The running of a railroad train at a rate of speed slightly in excess of that allowed by a city ordinance is not the proximate cause of an injury to one whose horses took fright at the train, and became unmanageable, when 55 feet from the track.</p>

Assumpsit by Don J. Leathers against John Canfield for commissions on a sale of timber land. From a judgment for plaintiff, defendant brings error.

<p>1. Land Contracts — Forfeiture—Waiver.</p> <p>A land contract which gave to the vendee the right of possession provided that, upon the vendee’s default, the vendor might declare the contract void, treat previous payments as stipulated rents, and take immediate possession of the premises. After default, the vendor, at the vendee’s request, consented to delay for a time the enforcement of the contract, in order to give the vendee an opportunity to sell the property and pay the debt, and accepted some small payments from the vendee. Held, that the vendee’s contention that the vendor thereby waived the right to declare a forfeiture, and elected to treat the vendee as a tenant, so as to entitle him to notice before his tenancy could be terminated, was inequitable.</p> <p>2. Same — Foreclosure—Defenses—Alienation of Title.</p> <p>The vendor in a land contract conveyed to a third person, subject to the contract. Thereafter he took a reconveyance, of which he gave the vendee notice, and, upon the latter’s default, sought to foreclose the contract. The vendee had never placed his failure to pay on the ground that the vendor had alienated his title. Held, that the fact could not be urged in defense of the suit.</p> <p>3. Same — How Differ from Mortgages — Procedure.</p> <p>Proceedings to foreclose land contracts are not subject to the limitations imposed by statute with respect to the foreclosure of mortgages, inasmuch as the relations of the complainants in the respective proceedings to the subject-matter are entirely different; the mortgagee having an equitable title, which can be expanded into a legal title only in the manner prescribed by law, and the vendor having himself the legal title, subject to divestiture upon the vendee’s performing the obligation which the retention of the title was in. tended to secure.</p>

, presiding. Bill in aid of execution by Samuel Desbecker and others, copartners as' Desbecker, Weill & Company, against Paulina Mendelson, the First National Bank of Ludington, and George N. Stray. From a decree dismissing the bill, complainants appeal.

Case by Percy T. Brydon, an infant, against the city of Detroit, for injuries sustained by reason of a defective sidewalk. From a judgment for plaintiff, defendant brings error.

Bill by John Dietrich and others to restrain George Schremms and others, officers of the township of James, from employing a tender for, and making repairs upon, a certain drawbridge. From a decree dismissing the bill, complainants appeal.

Mandamus by the city of Jackson to compel Joseph Weinhold, treasurer of Jackson county, to receive and file the city treasurer’s report of lands delinquent for taxes. From an order granting the writ, respondent brings certiorari.

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

Case by James Lemerand against the Flint & Pere Marquette Railroad Company and the Monroe & Toledo Railroad Company for depriving plaintiff, by a forcible entry, of the value of alleged betterments. From a judgment for defendants, plaintiff brings error.

Mandamus by A. Linley Griswold against the common council of the city of Ludington and others to compel the payment of a judgment obtained by relator against the city.

Mandamus by Anna Singer, and by Gustav J. Baetcke and another, respectively, to compel Stearns F. Smith, circuit judge of Livingston county, to vacate orders extending the time for settling bills of exceptions.

Mandamus by the United States Life-Insurance Company to compel Fred J. Russell, circuit judge of Muskegon county, to allow relator, as garnishee defendant, its costs as claimed.

Mandamus byj Nancy Wineman to compel Willard M. Lillibridge, circuit judge of Wayne county, to vacate an order granting leave to Henry Wineman to appear in a cause wherein relator and others were made defendants.

Certiorari by Thomas Holton to review the action of Sherman B. Daboll, circuit judge of Gratiot county, in refusing to set aside certain sales of real estate upon executions issued against petitioner in suits instituted, respectively, by petitioner against Silas Moody, and by Martin Wolf against petitioner.

<p>Notice of Trial — Sufficiency.</p> <p>Under 2 How. Stat. § 7551, requiring “written notice of trial” to be served, a notice in proper form, signed “Attorneys for Plaintiff,” without giving the names, is insufficient, although personally served by one of the attorneys for plaintiff upon one of the attorneys for defendant.</p>

Mandamus by Jennett M. Barker to compel Willard M. Lillibridge, circuit judge of Wayne county, to remove the Union Trust Company from the position of receiver of the American Eagle Tobacco Company, and to vacate an order fixing the time of hearing upon relator’s intervening petition.

<p>Mandamus by William H. Hollands and others to compel Robert E. Frazer, circuit judge of Wayne county, to set aside an order of reference.</p>

Gertiorari by George Silsby and Arthur H. Swarthout to review the action of Byron A. Snow, circuit judge of Saginaw county, in denying mandamus to compel James L. Lyle, commissioner of highways of Bridgeport township, to consent to a proposed railway route through said township.

Mandamus by Oliver C. Becker and others to compel Eugene Wilber, circuit judge of Saginaw county, to vacate an order extending the time for taking testimony in a chancery suit.

Error t'o Cass; Coolidge, J. Case by John B. Sweetland, administrator of the estate of Evaline A. Aldrich, deceased, against the Chicago & Grand Trunk Railway Company, for negligently causing the death of plaintiff’s intestate. Erom a judgment for plaintiff, defendant brings error.

Assumpsit by Jacob R. Yreeland against Robert Turner on a contract for the payment of money. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

, presiding. Case by Grace Rogers against Charles G. Olds for malicious prosecution. From a judgment for plaintiff, defendant brings error. This is an action for malicious prosecution. Plaintiff recovered judgment for $400. On the 10th of April, 1896, the plaintiff was engaged in keeping roomers in the house at No. 426 Cass avenue, in the city of Detroit, and a fire broke out about 4 o’clock in the morning of that day.

Bill in aid of execution by M. Francis Griffin against Frank McGavin and Richard Cuddihy. From a decree dismissing the bill, and granting to defendant McGavin relief sought by cross-bill, complainant appeals.

Cross-appeals from Kent; Adsit, J. Bill by tbe Fifth National Bank of Grand Rapids against Edwin S. Pierce' and wife, Emma L. Chamberlain, the Charles P. Kellogg Company, and others, to foreclose a mortgage. From a decree of foreclosure, defendants Chamberlain and the Charles P. Kellogg Company appeal, and complainant appeals from an order refusing to appoint a receiver.

<p>1. Easements — Alleys—Prescriptive Right.</p> <p>The use of an. alley in the rear of certain lots by the owner of one of them, under a claim of right recognized by the owner of the other, will ripen into a right by prescription.</p> <p>2. Same — Evidence—Terms of Grant.</p> <p>A deed to a lot originally 100 feet deep, describing it as being 80 feet deep and bounded in the rear by an alley, is persuasive evidence that such grantee and his subsequent grantees held in recognition of the rights of the adjoining owners in such alley.</p> <p>8. Same — Character of User.</p> <p>The fact that sheds for the shelter of teams were built in a space claimed to be an alley is not conclusive evidence that the space was not used for all the purposes of an alley.</p>

Bill by Julius Myers and wife and Moses C. Myers against the Alpena Loan & Building Association to en- join a foreclosure sale. Defendant appeals from a decree fixing the amount due.

Abraham R. Blakley presented a claim against the estate of Julia F. Farwell, deceased, upon a. promissory note.' The claim was allowed in the probate court, and George G. Cochran, a legatee, appealed to the circuit. From a judgment for claimant, .contestant brings error.

Clair; Vance, J. • Garnishment proceedings by David McMorran and another, copartners as D. McMorran & Company, against the Great Hive of the Ladies of the Maccabees, as garnishee of John Buzzard. From a judgment for the garnishee defendant, plaintiffs bring error.

Assumpsit by the Fontaine Crossing & Electrical Company against Henry S. Baucb and another, copartners as H. S. Bauch & Bro., on promissory notes. From a judgment for plaintiff on verdict directed by the court, defendants bring error.

Case by Simon J. Rodda against the city of Detroit for personal injuries. From a judgment for plaintiff, defendant brings error.

<p>Error to Branch; Yaple, J.</p> <p>Assumpsit by the Coldwater National Bank against Mary E. Buggie on a promissory note. From a judgment for plaintiff, defendant brings error.</p>

Mandamus by Simeon Van Akin to compel Luke Dunn, treasurer of Monroe county, to pay a certain drain order. From an order granting the writ, respondent brings certiorari.

, presiding. Bill by Henry B. Graves, receiver of tbe Latimer Gash-Register Company, against Alanson S. Brooks, William G. Latimer, and Frederick W. Towle, impleaded with the corporation and other stockholders therein, to compel an assessment for the payment of debts. From a decree for complainant, defendants appeal.

Bill by David S. Phillips and wife against Robert W. Linn and Margaret B. Kirk to set aside a lease and to restore a canceled land contract. From a decree dismissing the bill, complainants appeal.

Assumpsit by Marvin H. Chamberlin and others, co-partners as M. H. Chamberlin & Co., against Daniel Fisher and Oscar D. Weller, for goods sold and delivered. From a judgment for plaintiffs, defendants bring error.

<p>Error to Shiawassee; Smith, J.</p> <p>Replevin by George W. Burke against James Dunn. From a judgment for plaintiff, defendant brings error.</p>

<p>1. Married Women — Promissory Note — Consideration — Evidence.</p> <p>In an action by a bank against a married woman upon notes executed by her husband in her name, plaintiff claimed that the husband was defendant’s agent in all business transactions, and was authorized to sign the notes in suit. The defendant denied that she was engaged in business, by agent or otherwise, and disavowed her husband’s agency. It was shown that an account had been opened with plaintiff in defendant’s name, many years before, by her husband; that he at that time discontinued his own account, and thereafter made deposits and drew checks upon the new account; and, under objection, testimony was received showing that defendant participated in several dealings of her husband out of which the bank account arose, that the notes in suit were for overdrafts upon that account, and that the farm on which shd lived with her husband had been transferred to her by him before the account was opened. Held, that the evidence was properly received.</p> <p>2. Same — Separate Estate — Bank Account — Note for Overdraft.</p> <p>Evidence that a husband deeded his farm to his wife, and from that time the business was carried on by the wife, and the bank account growing out of the business was kept in her name, tends to show that notes given for overdrafts in her account relate to her separate property.</p> <p>3. Same — Husband as Agent.</p> <p>A married woman may constitute her husband her agent to carry on business for her in her name.</p> <p>4. Same — When Liable for Family Supplies.</p> <p>A married woman residing with her husband may be held liable upon her note for the price of clothing purchased for a minor son, if the sale was made to her upon her individual credit.</p> <p>5. Same — Condition Precedent to Suit — Statutes.</p> <p>2 How. Stat. § 6298, provides that a married woman shall be liable to be sued upon any contract or engagement made by her in cases where her husband is not in law liable, or where he refuses to perform such contract or engagement. Section 7352 saves to the holder of any bill or note the right to bring separate actions against the jiarties in the manner authorized by law. Held, that it is not incumbent upon the holder of a promissory note given by a married woman for her individual debt, and signed by her husband also, axiparently as accommodation indorser, to show, as a condition precedent to his maintaining a suit against the wife, that the husband is not liable or has refused to pay.</p>

<p>Appeal from Wayne; Donovan, J.</p> <p>Bill by Margaretta C. Morey against Franklin C. Morey for separate maintenance. From a decree of absolute divorce, complainant appeals.</p>

Appeal of Frank Joslyn, administrator of the estate of Chauncey Joslyn, deceased, from an order of the probate court requiring him to pay over certain moneys to the intestate’s widow, Sarah M. Joslyn. The order was affirmed in the circuit, and the administrator brings error.

Assumpsit by Jackson Bokenfohr against Herbert T. Bush and others, copartners as H. T. Bush & Co., for goods sold and delivered. From a judgment for plaintiff, defendants bring error. One Adolph Anderson, a produce dealer and broker in New Orleans, telegraphed defendants, produce dealers in Detroit, the lowest price per car load for good merchantable potatoes. Defendants replied by telegram, June 4th: “Accept offer bbld. potatoes, Triumphs preferred.

Garnishment proceedings by John McCann and others, copartners as McCann & Co., against Dexter C. Dillabaugh, as garnishee of Ber Buchman and others, copartners as Buchman Bros. From a judgment for defendant, plaintiffs bring error. Plaintiffs were creditors of the principal defendants, and, upon bringing suit, garnished the defendant Dillabaugh, and seek to hold him upon the ground that he has property in his hands belonging to the principal defendants.

<p>Error to Hillsdale; Lane, J.</p> <p>Trover by Edgar P. Dickey and Mary A. Dickey against Russell E. Converse. Prom a judgment for plaintiffs, defendant brings error.</p>

Cross-appeals from Wayne; Lillibridge, J. Bill by the board of water commissioners of the city of Detroit against the city of Detroit, the board of health of said city, and U. Grant Grummond, to abate a nuisance. From a decree against the defendant city alone, complainant and the said defendant appeal.

Certiorari by Michael B. Hauser to review the action of John E. Burbank, drain commissioner of Berrien county, in laying out and establishing a drain. From a judgment setting aside the proceedings, defendant brings error.

Assumpsit by Maggie Kleis against the Niagara Fire Insurance Company upon an alleged contract of insurance. From a judgment for plaintiff, defendant brings error.

Mandamus by Fred A. Maynard, Attorney General, to compel Sybrant Wesselius, Commissioner of Railroads, to make an order for a separation of grades at the intersections of certain railways with certain streets in the city of Detroit.

, J. Assumpsit by the Crane Lumber Company against Elwin Bellows and Adelbert Bellows, under 3 How. Stat. § 3035, to recover for 'labor in breaking a jam of logs belonging to defendants. From a judgment for plaintiff, defendants bring error.

Replevin by tbe Iron Star Company against Richard Wehse, treasurer of Crystal Falls township, for property seized for taxes. From a judgment for defendant, plaintiff brings error.

Cross-appeals from Wayne; Hosmer, J. Bill by William L. Carpenter, executor of the last will and testament of Herbert M. Snow, deceased, against Mary L. Snow, decedent’s wife, and Clara L., Harry A., and Gertrude E. Snow, decedent’s minor children, for a construction of tbe will. From the decree rendered, complainant and the infant defendants appeal.

Debt by John Gregg against David Fox, as principal, and Lewis R. Grosslight and Michael Caplis, as sureties, upon a constable’s bond. From a judgment for plaintiff, defendants bring error.

<p>Execution — Exemptions.</p> <p>An unbroken two-year-old colt, never used nor shown to be intended for use in the business of the owner, who keeps two other horses for business purposes, is not exempt from execution.</p>

Assumpsit by Charles L. Ortmann against George N. Fletcher for the price of corporate stock bargained and sold. From a judgment for defendant, plaintiff brings error.

Case by Alfred Bilsborrow, T. J. Cavanaugh, and others, copartners, against Bangs E. Warner, for deceit. From a judgment for plaintiffs, defendant brings error.

Assumpsit by William Marx against Nicholas Otto for commissions on a sale of real estate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Clair; Vance, J. Assumpsit by Peter Lassen against Benjamin J. Karrer to recover money lost on an election bet. From a , judgment for plaintiff, defendant brings error.

Assumpsit by Wadhams, Ryan & Reule, a corporation, against the Western Assurance Company, on a policy of fire insurance. Erom a judgment for plaintiff, defendant brings error.

Assumpsit by Nester Kindermann against the city of West Bay City for salary as policeman. From a judgment for plaintiff, defendant brings error.

Bill by the John Hancock Mutual Life Insurance Company against Elizabeth Dick to cancel a policy on the life of one John J. Dick, and to enjoin the prosecution of an action at law thereon. Defendant filed an answer in the nature of a cross-bill, asking a decree for the amount of the policy. From a decree dismissing complainant’s bill, and for defendant upon her answer, complainant appeals.

Assumpsit by Emily B. Ketcham against the American Mutual Accident Association on a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Trover by Selig Solomon against-John A. Widner for the conversion of certain timber. From a judgment for plaintiff, defendant brings error.

Bill by Eleanor C. Reeves against George R. Reeves to compel a conveyance of real estate under a decree for alimony. From a decree for complainant, defendant appeals.

Joseph; Yaple, J. Certiorari by Ezra Lanning, John Ealkenstine, Jr.,. and others, to review the proceedings of Charles A. Palmer, county drain commissioner, in the matter of cleaning out a drain. The circuit court dismissed the writ, and plaintiffs bring error.

<p>Error to Monroe; Kinne, J.</p> <p>Ejectment by Edmund W. Reynolds against Herman ' Gaertner. ’ From a judgment for defendant, plaintiff brings error.</p>

Assumpsit by tbe Union National Bank of Troy against tbe Williams Milling Company, Frank D. Pierson, and George L. Mosher on a promissory note. There was a judgment against the milling company alone, and plaintiff brings error.

<p>1. Equity Practice — Bill of Interpleader — Injunction — Producing Money in Court.</p> <p>Complainant in a bill of interpleader should offer to bring into court any moneys acknowledged to be due from him, and, where he asks an injunction, it should be granted only on condition of his complying with such offer.</p> <p>2. Same — Demurrer.</p> <p>The omission of such offer does not, however, render the bill demurrable.</p> <p>3. Same — Affidavit of Noncollusion — Execution by One Co-partner. .</p> <p>An affidavit of noncollusion, accompanying a bill of interpleader which states that the complainants are copartners, is sufficient, though sworn to by but one of them.</p> <p>4. Same — Case Made by Bill.</p> <p>A bill of interpleader showing that the complainants have no interest in a fund representing the price of timber purchased by them, and that it is claimed by an assignee of the seller, •and also by another person, who claims that the property belonged to him when sold, and that certain other persons assert liens thereon for labor, states a case for equitable relief.</p>

Petition of Eva Koegel for 'an order requiring the Michigan Trust Company, as receiver of the Mecosta County Savings Bank, to pay a claim for rent. From an order granting the petition, respondent appeals.

Assumpsit by William N. McLennan against Benjamin Boutell and John A. McDonald for the breach of a contract to promote a corporation. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Assumpsit by the Rapid Hook & Eye Company against Cornelius De Ruy ter upon a subscription to .the capital stock of the 'plaintiff. From a judgment for defendant, plaintiff brings error.

Replevin by Henry J. Brock and Mortimer Wiener against Isaac H. Garson, trustee for David Altman. From a judgment for plaintiffs, defendant brings error. Plaintiffs sold to one Altman, December 23, 1896, goods which were delivered March 19, 1897. On the same day that the goods were delivered, Altman gave a mortgage to several of his creditors to secure $1,495. This mortgage was on the same day assigned to defendant as trustee.

Assumpsit by the Fuller & Bice Lumber & Manufacturing Company against Joseph Houseman and another for goods sold and delivered. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Summary proceedings by Jerome Grovenburgh against Royal J. McKeough to recover the possession of land. From a judgment for defendant, .complainant brings error. This case was tried before the court, and a finding of facts made. The finding shows that complainant had a life estate in the premises; that on September 5, 1894, he leased them for three years to one Fox on shares, complainant to have one-third of the crops.

Case by Elizabeth Burridge against the city of Detroit for personal injuries caused By a defective sidewalk. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Case by James A. Andre against the Winslow Brothers Elevator Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error. The defendant is a corporation engaged in the manufacture and erection of elevators. In 1894 it had a contract to erect five elevators in the Chamber of Commerce, Detroit. Defendant’s chief engineer, named Smith, had general charge of their erection.

Trespass de bonis by Peter Van Werden against Amos J. Winslow. From a judgment for plaintiff, defendant brings error.

Case by James H. Rudell and another against the Ogdensburg Transit Company for the breach of a contract of carriage. From a judgment for defendant, plaintiffs bring error. Plaintiffs, commission merchants in Detroit, shipped a quantity of potatoes and onions by the defendant’s line to Chicago. Plaintiffs had sold them to merchants in Chicago, at a certain price, provided they were delivered there by the 12th of July, 1894.

Bill by Herman Dittmer against Charles Bath and Cornelia R. Schenck to enforce a mechanic’s lien. From a decree subjecting the lien to a mortgage held by defendant Schenck, complainant appeals.

<p>Factory Inspection — Interference with Inspector.</p> <p>The general manager of a factory is not guilty of interfering with the factory inspector in the discharge of his duty, within the meaning of Act No. 184, Pub. Acts 1895, imposing a penalty for such interference, by refusing to let him enter the part of the factory which he desires to inspect through a door that only indirectly leads to that portion, at the same time indicating the regular door, which would give him complete access thereto.</p>

<p>1. Criminal Law — Assault—Intent—Instructions.</p> <p>Where the court instructed the jury fully as to the specific intent which must he found before they could convict of assault with intent to do great bodily harm less than murder, and that in determining the intent they must consider all the circumstances, it was not error to refuse to instruct that if the firing of the pistol, upon which the charge was predicated, was not shown, by further proof than the presumption attaching to the act, to have been with the intent charged, ’ the jury should acquit.</p> <p>2. Same — Special Defense — Appeal.</p> <p>The defense of intoxication to such a degree as not to be able to entertain a criminal intent charged should be brought to the attention of the trial court, and instructions thereon requested, in order that alleged error in failing to submit such defense may be considered on appeal.</p>

Exceptions before judgment from Genesee; Wisner, J. David Eoat was convicted of breaking and entering a store, not adjoining to nor occupied with a dwelling, with intent to commit larceny.

Orson D. Taylor was convicted of obtaining a signature to promissory notes by means of false pretenses, and sentenced to imprisonment for six years in the state prison at Jackson.

Cross-appeals from Wayne; Frazer, J. Bill by Marvin Preston and others against tbe board of water commissioners of the city of Detroit to restrain the collection of water rates as assessed by said board. From the decree rendered, all parties appeal.

<p>Appeal from Muskegon; Russell, J.</p> <p>Bill by Richard S. Cox against Beate Cayan and William Cayan to foreclose a mortgage. From a decree for complainant, defendants appeal.</p>

The First National Bank .of Paw Paw presented a claim against the estate of Alonzo Sherman, deceased. The claim was disallowed by the probate court, and claimant appealed to the circuit. From a judgment for defendant, claimant brings error. This case was tried before the court without a jury.

The First National Bank of Paw Paw, a claimant against the estate of Alonzo Sherman, deceased, appealed from an order of the probate court transferring the proceeds of a life-insurance policy from said estate to the estate of Eugenia T. Sherman, deceased. From a judgment affirming the order, claimant brings error.

Case by August Mensing against the Michigan Central Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error. Plaintiff was a passenger over defendant’s road from Niles to Dowagiac, on the morning of February 19, 1896. A severe snowstorm was in progress, and at Dowagiac there was about 10 inches of snow upon the ground.

<p>Railroads — Crossings—Viaducts—Maintenance.</p> <p>An order oí the railroad’ commissioner, under 3 How. Stat. § 3301, requiring that a viaduct, to be erected to carry the tracks of one railroad company over those of another company, should be so constructed as to provide a passageway for pedestrians and teams, though not so expressly providing, implies a duty on the part of the companies to keep such passageway in repair.</p>

Assumpsit by the people of the State of Michigan, for the use and benefit of Frank B. Holmes' and Albert R. Strachan, against James Grant and others, upon a statutory bond. From a judgment for plaintiffs, defendants bring error.

Bill by Alice A. Hall and others against William Collins and Eugene Kiely to set aside a tax deed. From a decree for complainants, defendants appeal.

<p>Attorneys — Disbarment.</p> <p>An application for the disbarment of an attorney will he denied unless the charges against him are clearly sustained by the evidence.</p>

Joseph; Yaple,'J. Bill by Alexander Gordon against the Constantine Hydraulic Company, John W. Lamb, and others, to foreclose a mortgage. The defendant company filed an answer in the nature of a cross-bill, praying that a lease executed by it, held by defendant Lamb and others, be decreed to be a mortgage and a prior lien. From a decree granting the prayer of the cross-bill, complainant appeals.

, presiding. Bill by the Union Trust Company against the Detroit Motor Company, William C. Maybury, and others, to foreclose a mortgage and to enforce the liability of guarantors. From the decree rendered, all parties appeal.

<p>Architects — Mistake in Plan — Liability.</p> <p>An architect who possesses the skill and knowledge of the average member of his profession, and uses ordinary care and diligence in their exercise, cannot be held liable for damages resulting to his employer from a mistake of judgment in the draughting of plans.</p>

Certiorari by Joseph W. Hauser to review the action of John E. Burbank, drain commissioner of Berrien county, in laying out and establishing a drain. From a judgment setting aside the proceedings, defendant brings error.

Petition by Edwin H. Whitney against Seymour Foster, receiver of the People’s Savings Bank of Lansing, Michigan, to establish a lien upon the building occupied by the bank. From a decree denying the prayer of petitioner, he appeals.

Bill by John H. Bissell against Thomas Dowling, Ella F. Dowling, and the First State Savings Bank of Evart, to foreclose a mortgage. The defendants filed answers in the nature of cross-bills, praying the discharge of the mortgage and the cancellation of notes collateral thereto. From a decree for defendants, complainant appeals.

Case by Hattie M. Bond against the Lake Shore & Michigan Southern Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error. Plaintiff claims that while she was riding south from Ann Arbor, in a public highway, her carriage was struck by the engine of a freight train going west on the defendant’s road. The accident happened September 22, 1894, and she commenced this action August 19, 1896. She recovered verdict and judgment.

Case by Henry Wesley against the city of Detroit for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff .brings error.

<p>1. Garnishment — Action on Judgment.</p> <p>An. action on a foreign judgment is an action upon contract, within the meaning of 3 How. Stat. § 8058, providing that a writ of garnishment may issue in all personal actions arising upon contract, express or implied.</p> <p>2. Same — Affidavit—Amendment.</p> <p>An affidavit for garnishment may be amended to correct a clerical error in its date.</p> <p>3. Same.</p> <p>Nothing can be reached in the hands of a garnishee which had its origin in transactions subsequent to the issuing of the writ of garnishment.</p>

Mandamus by the village of Highland Park to compel Wilbur W. McAlpine, president, and J. William Brenkert, clerk, of said village, to execute certain municipal bonds. From an order granting the writ, respondents bring certiorari.

Assumpsit by the Western National Bank of New York against John S. Lawrence to enforce the individual liability of defendant as a stockholder in a Kansas corporation. From a judgment for defendant on demurrer to the declaration, plaintiff brings error.

, presiding. Ejectment by Parmelia Downing, Clarissa B. Smith, and Mary P. Graham against Henry Birney and wife. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.

<p>Mandamus by the Union National Bank of Chicago to compel Fred J. Russell, circuit judge of Muskegon county, to reinstate a writ of garnishment.</p>

Case made from Kent; Adsit, J. Assumpsit by Adelbert W. Hallenbeck against the Powers & Walker Casket Company for the breach of an alleged contract of employment. There was a judgment for defendant, and plaintiff assigns error.

Case by John C. Angell against the city of West Bay City for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Appeal from St. Clair: Eldredge, J., presiding.</p> <p>'Bill by Louisa G-. Bentley against William O. Robson, trustee, to set aside a mortgage. From a decree for complainant, defendant appeals.</p>