Volume 118 — Michigan Reports

<p>with Vehicle — Contributory, Street Railways — Collision Negligence of Driver.</p> <p>Plaintiff’s wife was driving, in a sparsely-settled neighborhood, a covered milk wagon, which had doors, at the sides and a small window at the hack. The weather was cold, and she had a shawl over her head and ears. Before crossing the track of an electric railway, upon which cars ran at half-hour intervals, she looked up and down the track, but no car was visible. She could see to the west a half mile. After crossing, she drove east, parallel with the track, but at such a distance therefrom that she thought a car could pass without hitting the wagon. The traveled portion of the roadway was narrow, and she guided the horse so that the wheels of the wagon would follow in the ruts. After driving about 309 feet, she heard a bell, and attempted to turn out farther, but, before she could do so, an east-bound car struck the wagon.</p> <p>Held, in an action against the company, not to show contributory negligence as a matter of law.1</p> <p>2. Same — Instructions.</p> <p>In view of the facts of the particular case, it was not reversible error for the court to charge that “she had a right to drive down the track just as she did, and if she turned out, or tried to turn out, immediately on the sounding of the gong, she was blameless, and there is no contributory negligence in the case;” and that “a man may drive ahead of you with a wagon, * * * but * * * you must wait until your opportunity comes to pass, and the same rule applies to a street car,”— further instructions making it clear to the jury that the question of contributory negligence was for their determination, and that if they should find 'that she drove in front of the car after she had turned out (as claimed by tlie oompany), and it was then so near to her that it could not be stopped, they should return a verdict of no cause of action.</p>

<p>Appeal from Ontonagon; Haire, J.</p> <p>Petition by J. Everett Ball against the Ridge Copper Company for a writ of assistance. From an order granting the writ, respondent appeals.</p>

Petition by John P. Sanger and others for the opening of a highway in Brownstown township.

Case by Guy Wright and Cornelius Franks, infants, against the village of Portland, for injury to land. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.

<p>Appeal from Muskegon; Russell, J.</p> <p>Petition by Edward Hughes against Patrick Jordan for a writ of assistance. From an order granting the writ, respondent appeals.</p>

Petition by the Detroit Fire & Marine Insurance Company against Eugene B. Wood and the auditor general to set aside a tax deed, and to apply certain redemption money to the purchase of the land. From a decree dismissing the petition, petitioner appeals.

Case by James P. Sullivan against Theodore A. Mc-Graw, a surgeon, for malpractice. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Petition by Clark W. Youngs against Robert Peters and others for a writ of assistance. From an order granting the writ, respondents appeal.

Bill by Antoine Christian against Sam A. Soderberg and Charles Backstrom to set aside a tax deed. From a decree dismissing the bill, complainant appeals.

<p>Appeal from Jackson; Peck, J.</p> <p>Creditors’ bill by Thomas E. Barkworth and Charles A. Blair, copartners, against William H. Palmer and Mary M. Palmer. From a decree for complainants, defendants appeal.</p>

Bill by Fred A,. Kneeland and John H. Cole against Herman Hyman to quiet title. From a decree dismissing the bill, complainants appeal. Complainants are the owners of a tax title ,to the land described in the bill of complaint, under a decree duly entered for the delinquent taxes of 1893 and the sale thereunder, having obtained the tax deed March 10, 1897. Defendant was the original owner. The land is wild and unoccupied.

Charles Hotchkiss was convicted, in the recorder’s court of Detroit, of peddling without a license, contrary to the provisions of an ordinance. Upon certiorari to the circuit court, the conviction was set aside, and the people bring error.

<p>Appeal from Ionia; Davis, J.</p> <p>Bill in aid of execution by Amos E. Otis against Alexander Sprague and Sarah M. Sprague. From a decree for complainant, defendants appeal.</p>

Replevin by William Vincent against Josiah W. Sherwood and Eliza S. Sherwood. From a judgment for plaintiff on verdict directed by the court, defendants bring error. Affirmed.

Case by Matilda L. Springer against the city of Detroit for personal injuries. From a judgment for plaintiff, ■defendant brings error.

<p>Exceptions before judgment from Berrien; Coolidge, J.</p> <p>Charles A. Smith was convicted of violating the liquor law.</p>

<p>Exceptions before judgment from Jackson; Peck, J.</p> <p>Ralph B. Gould was convicted of embezzlement.</p>

Exceptions before judgment from Allegan; Padgham, J. Isaac W. Carrel and Chester Carrel were convicted of -violating, the liquor law, in that they obstructed the view -of their bar from the street.

Wayne; Donovan, J. Mandamus by John Simek to compel Lodge No. 86 of the Bohemian Slavonian ^Benevolent Society of the United States to restore relator to membership in the society. From an order granting the writ, respondent brings certiorari.

<p>Mechanics’ Liens — Contract Price — Pro Rata Distribution.</p> <p>Under the mechanic’s lien law (Act No. 179, Pub. Acts 1891, as amended), a subcontractor, materialman, or laborer is entitled to a lien only for his pro rata share of the contract price» where the same is less than the cost to the contractor.</p>

<p>Mandamus by James Doud to compel Oscar Adams, circuit judge of Mackinac county, to dissolve a preliminary injunction.</p>

Ejectment by the Peninsular Savings Bank against Arthur Ward and Charles H. Fults. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

, presiding. Assumpsit by Peter Wilhelm against Albert J. Voss for work and labor. From a judgment for plaintiff, defendant brings error.

Bill by tbe Pittsburgh & Lake Angeline Iron Company against the Lake Superior Iron Company and the Cleveland Iron-Mining Company for an equitable division of the territory formerly covered by the waters of Lake Angeline, and for other relief. From a decree dismissing the bill, complainant appeals. Lake Angeline was situated on sections 10, 11, and 15,-township 47 N., range 27 W., and was within the corporate limits of the city of Ishpeming, in Marquette county.

Bill by tbe Rapid Railway Company to enjoin the city of Mt. Clemens and others from interfering with complainant in its operation of certain switches. From a decree dismissing the bill, complainant appeals.

<p>Appeal from Wayne; Lillibridge, J.</p> <p>Bill to redeem by William J. Murphy against John Charlton and others. From a decree dismissing the bill, complainant appeals.</p>

Bill by Francis Bacon against Mary A. Pomeroy, William Klett, and others, to foreclose a mortgage. From a decree for defendants, complainant appeals. Bill to foreclose a mortgage. Defense, payment. The note and mortgage were dated January 28, 1889, and executed by George H. Pomeroy to one George E. Breck, for $800. It was a negotiable promissory note, due in five years from date.

Error’ to Wayne; Donovan, J. Assumpsit by Oliver H. G-runow and Buchanan M. Patterson against Casper Salter and Joseph Salter to recover the accrued interest on a land contract. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.

Bill by the Belding Savings Bank against Le Roy Moore, Charles F. Morgan, and Thomas J. Potter, to compel the delivery of a mortgage held in trust by defendant Morgan^ and to declare said mortgage a prior lien over a deed of the same premises to defendant Potter. From a decree, dismissing the bill, complainant appeals.

Henry K. Jones and Matilda C. Jones presented a claim against the estate of J. Huff Jones, deceased, for a balance due from decedent as trustee under the will of Catherine H. Jones. The claim was allowed by the commissioners, and the Home Savings Bank, a creditor, appealed to the circuit court. From a judgment for claimants on verdict directed by the court, contestant brings error.

Bill by Charles Gr. Moran against Annie L’Etourneau to enforce an equitable interest in real estate. From a decree dismissing the bill, complainant appeals.

Bill by the Aldine Manufacturing Company against James T. Phillips to foreclose a lien upon stock. Prom a decree dismissing the bill on demurrer, complainant appeals.

, presiding. Assumpsit by Albert E. Temple against Earl Goldsmith for goods sold and delivered; From a judgment for plaintiff, defendant brings error.

Bill by Kate E. Long against William J. Landman, administrator with the will annexed of the estate of Mary C. Hurlbut, deceased, George H. Long, executor of the last will and testament of Arthur B. Long, deceased, and others, to foreclose two real-estate mortgages. From a decree for complainant, defendants, except George H. Long, appeal.

Assumpsit by Thomas A. Walker against William E. Syms and George E. Dudley to recover a balance due upon a building contract. From a judgment for plaintiff, defendants bring error.

Mandamus by Thomas F. Dodge to compel George M. Buck, circuit judge of Van Burén county, to grant an injunction restraining the negotiation of certain township bonds.

Mandamus by Felix Raniville to compel William E. Grove, circuit judge of Kent county, to vacate an order setting aside the default of a nonresident garnishee defendant.

<p>Mandamus by Dexter J. Briggs to compel George S. Hosmer, Robert E. Frazer, and Willard M. Lillibridge, circuit judges of Wayne county, to dissolve a preliminary injunction. Order to show cause denied</p>

Petition by Alice A. Hall against M. E. Mann and George F. Brown to set aside a tax sale. From a decree dismissing the petition, petitioner appeals.

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

Case by John Doherty against the Detroit Citizens’ Street-Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Error to Clinton; Daboll, J.</p> <p>Case by Edward A. Acre against Scott Starkweather for slander. From a judgment for defendant, plaintiff brings error.</p>

Case by Melvin B. Church against the Anti-Kalsomine Company for fraudulently destroying profits of the corporation which should have accrued to plaintiff. From a judgment for defendant on demurrer to the declaration, plaintiff brings error.

i. Trover by Ernest Feige against Wellington B. Burt and the Home National Bank of • East Saginaw. From a judgment for defendants * <n verdict directed by the court, plaintiff brings error.

Samuel E. Raub presented a claim against the estate of Stephen S. Wilcox, deceased. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for the estate (William P. Nisbett, administrator), claimant brings error.

Bill by Bryant Walker, administrator de bonis non of the estate of Corydon L. Ford, deceased, against the city of Ann Arbor and William Behfuss, county treasurer, to restrain the collection of a special assessment. From a decree dismissing the bill, complainant appeals.

<p>Deeds — Mental Incapacity — Grant to Married Woman — Consideration.</p> <p>Complainant, an aged woman, incapable, from grief over the recent death of her husband, of understanding the nature of business transactions, gave to defendant a deed of her property, in consideration of her support during life and burial at death. The grantee was a married woman, and, while her husband participated in the negotiations, he did not obligate himself to fulfill the wife’s agreement as recited in the deed. No separate instrument binding defendant was executed, and the deed did not correctly represent the bargain which defendant’s own testimony showed was made. Held, that it should be set aside.</p>

Petition by Joseph Hooker against William G. Bond, Estella C. Murgittroyd, and Elanson S. Murgittroyd, for a writ of assistance under a tax deed. From an order denying the writ, petitioner appeals.

John F. Prentis presented a claim against the estate ox David M. Richardson, deceased. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for the estate on verdict directed by the court, claimant brings error.

Petition by Isaac E. Barnum against Arthur E. Barnes and the auditor general to set aside a tax sale. Prom a decree dismissing the petition, petitioner appeals.

Petition by the State Savings Bank of Detroit against Seymour Poster, receiver of the People’s Savings Bank of Lansing, to compel the payment of a dividend. Prom an order dismissing the petition, petitioner appeals.

<p>Error to Muskegon; Russell, J.</p> <p>Case by Albert J. Wacbsmutb against the Shaw Electric Crane Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Petition by the American Trust & Savings Bank of Chicago against Seymour Poster, receiver of the People’s Savings Bank of Lansing, to compel the payment of a dividend. Prom an order dismissing the petition, petitioner appeals.

<p>Eire Insurance — Clear-Space Clause — Evidence—Estoppel.</p> <p>A finding that the insured, at the time of taking out a policy, informed the agent of the insurance company of the location of his property with substantial accuracy, and that, therefore, the company is estopped from asserting a violation of the “clear-spaee” clause, is justified by evidence that he furnished the agent with a rough diagram approximately showing the correct situation, but which the agent incorrectly copied, and that' neither party understood the diagram to be precisely accurate.</p>

William R. Stafford appealed from an order of the probate court disallowing certain items in his account as executor of the last will and testament of Mabel Crawford, deceased. The account was allowed in the circuit, and Clay Crawford, co-executor, brings error.

<p>Exceptions before judgment from Yan Burén; Buck, J.</p> <p>M. A. Engle was convicted of violating the local option law.</p>

Joseph; Yaple, J. Adelbert D. Swartz was convicted of murder in the first degree, and sentenced to imprisonment for life in the state prison at Jackson.

Case made from Kent; Adsit, J. Assumpsit by Harriet C. Fretz against Bernard Murray on a promissory note. Plaintiff had judgment for less than the amount claimed, and she assigns error.

Trespass quare clausum fregit by Lewis B. Goff against Joseph Cougle. There was a judgment for plaintiff, and defendant appealed. Pending the hearing on appeal, defendant died, and the. cause was revived in the name of his administrator, John Cougle.

Mandamus by Hazen S. Pingree to compel the Michigan Central Railroad Company to issue a family mileage book. From an order granting the writ, respondent brings certiorari.

3£andamus by the Fort-Street Union Depot Company to compel Sybrant Wesselins, commissioner of railroads, to compute relator’s tax according to the provisions of Act No. 244, Pub. Acts 1881. The amendatory act of 1897 (Act No. 228), referred to in the opinion, is as follows: “Sec. 3.

Mandamus by tbe Manistee & Northeastern Railroad Company to compel Sybrant Wesselius, commissioner of railroads, to exclude a part of its road in computing the amount of its taxes. Act No. 174, Pub. Acts 18,91, and Act No. 129, Pub.

<p>Mandamus by Rudolph Mardian to compel Sherman B. Daboll, acting circuit judge of Wayne county, to vacate an order appointing a receiver.</p>

<p>Appeal-from Wayne; Donovan, J.</p> <p>Bill by John P. Lieberman against Eugene H. Sloman for an accounting.» From an order overruling a demurrer to the bill, defendant appeals.</p>

'Mandamus by E. H. Chase & Company to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate an order quashing a writ of attachment.

Lillibridge, acting judge. Ida Chudek was adjudged insane, and committed to the Eastern Michigan Asylum, at Pontiac. Upon an appeal being denied to her, she sued out writs of certiorari and habeas corpus.

Mandamus by Michael G. McCarthy to compel William E. Grove, circuit judge of Kent county, to enter judgment in proceedings under the water-craft act in accordance with the findings of a jury. Two steamboats, the Major A. B. Watson and the Trixie, both pleasure boats, collided on Reed’s Lake. The Trixie was injured. Her owner, the relator, brought suit against the Watson under the water-craft act (2 How. Stat. chap. 285).

Assumpsit by Philemon H. Post against Jacob A. Voorheesupon an alleged contract of sale. From a judgment for plaintiff, defendant brings error. Plaintiff’s declaration contains the common counts in assumpsit, and a special count alleging the sale of certain described lands by the plaintiff to the' defendant for what they were reasonably worth, and alleges their value to be $3,000.

Assumpsit by John E. Carland against the Western Union Telegraph Company for failure to deliver a message. From a judgment for plaintiff, defendant brings error.

Bill by Warren Henry against Jesse Gates and Delos P. Leonard to reach the interest of William B. Gates, a judgment debtor, impleaded with said defendants, in certain moneys in the hands of defendant Gates as executor of the will of Ellen A. Jones, deceased. From a decree for complainant, defendants appeal.

<p>Appeal from Jackson; Peck, J.</p> <p>Bill by Emeline A. Litchfield against Caroline E. Tunnicliff and Bob Breck Tunnicliff to foreclose a mortgage. From a decree for complainant, deféndants appeal.</p>

Ejectment by William A. Garner and George F. Brown against James O. Wallace, Roxiana Wallace, and Frank W. Hubbard. From a judgment for defendants on verdict directed by the court, plaintiffs bring error.

Mandamus by Jacob Baar, mayor of the city of Grand Haven, to compel Thomas E. Kirby, city clerk, to file a veto message. From an order denying the writ, relator brings certiorari.

Mandamus by Samuel M. Stephenson to compel the boards of election commissioners for the counties of the Twelfth congressional district to place relator’s name on the official ballot as the regular congressional nominee of the Republican party in that district.

Mandamus by James W. Edgar, chairman, of the Republican county committee of Livingston county, to compel the board of election commissioners of said county to place the Republican party ticket first on the official ballot.

Mandamus hy Andrew W. Lockton, prosecuting attorney of Calhoun county, to compel William M. Edwards, medical superintendent of the Michigan Asylum for the Insane at Kalamazoo, to receive an indigent-insane person as a State charge.

Case by William H. Clark against the village of Davison for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

„ Error to Shiawassee; Smith, J. Case by Nathan Moore and James Moore against the township of Hazelton for damages caused by a defective bridge. From a judgment for plaintiffs, defendant brings error.

<p>1. Life Insurance — Assessments — Place of Payment —Forfeiture.</p> <p>Failure of insured to make a monthly payment on a life-insurance policy does not work a forfeiture, where, at the issuing of the policy, the agent stated that the company would send a collector to the insured’s house between the 1st and 10th of each month, to.whom the monthly payments should be made, and the insured had the money ready for such collector, who failed to come,, and no notification was received that payments should or might be made elsewhere.</p> <p>2. Same — Action on Policy — Special Defenses — Amendment of Plea — Discretion of Court.</p> <p>Refusal of the trial judge to permit an insurance company, in an action against it on its policy, to amend its plea of the general issue, on the statement of counsel that a special defense was first made known by the cross-examination of the plaintiff, is not an abuse of discretion, where, from the questions propounded on the cross-examination, it is apparent that some thought of such defense must have been entertained, and preparation made therefor, before the trial, and the refusal to pay the loss, which was small, was based upon an entirely distinct claim.</p>

Assumpsit by Edward L. Walbridge and James T. McAllister against Ervin E. Barrett for services as attorneys at law. From a judgment for plaintiffs, defendant brings error.

<p>Error to Cheboygan; Adams, J.</p> <p>Replevin by Eber L. Kelsey against Fred R. Ming. From a judgment for defendant on verdict directed by the court, plaintiff brings error.</p>

<p>Error to Wayne; Frazer, J.</p> <p>Garnishment proceedings by Morris H. Sloman against the Goebel Brewing Company, as garnishee of Louis J. Ouellette. From a judgment for defendant, plaintiff brings error.</p>

Bill by Michael F. Griffin against Thomas Griffin for a partnership accounting. Defendant filed a cross-bill, impleading Gertrude T. Griffin. From a decree for defendant upon the cross-bill, Gertrude T. Griffin appeals.

Bill by William P. Belden against B. Am.elia Blackman, executrix of tbe last will and testament of Ezekiel Jewett, deceased, and George W. Barker, a legatee, to restrain the payment of a legacy. Prom an order overruling a demurrer to the bill, defendant Blackman appeals.

<p>1. Taxes — Warrant—Direction.</p> <p>A warrant for the collection of taxes is sufficient if directed to the township treasurer of a specified township and county, although it does not contain the treasurer’s name.</p> <p>2. Same — Assessment in Wron® Name — Levy and Sale.</p> <p>Lands of H. M. L. & Sons Lumber Company, a corporation, were by mistake assessed to “H. M. L. & Sons,” a copartnership. Held, that, under the curative provision of the tax law (Act No. 206, Pub. Acts 1893, § 99), the assessment was valid, and that a levy upon and sale of personal property of the lumber company to satisfy the tax was proper.</p>

Assumpsit by tbe Escanaba Boom Company against tbe Two Rivers Manufacturing Company for work and labor. From a judgment for plaintiff, defendant brings error. Plaintiff is a corporation organized under 1 How. Stat. cbap. 114, and doing business on the Escanaba river. Defendant is a corporation engaged in lumbering on the same stream, from 1892 to 1896, inclusive.

Mandamus by James K. Bogert to compel Guy M. Chester, acting circuit judge of Jackson county, to dissolve an injunction restraining the paving of certain streets in the city of Jackson.

<p>Error to Wayne; Donovan, J.</p> <p>Assumpsit by Louis Barnett against Rosa Saloman on a promissory note. From a judgment for plaintiff, defendant brings error.</p>

<p>Appeal from Ogemaw; Sharpe,. J.</p> <p>Bill by Robert T. Lindley against Levi R. Lupton and others to foreclose a mortgage. From a decree dismissing the bill, complainant appeals.</p>

Assumpsit by Hannah O’Leary against school district No. 4 of Bridgeport township, upon a teacher’s contract. Erom a judgment for plaintiff, defendant brings error.

<p>Appeal from Shiawassee; Smith, J.</p> <p>Petition by Warren Pierpont against William H. Os-mun, Sr., for a writ of assistance. From an order granting the writ, defendant appeals.</p>

Assumpsit by Albert K. Hunton, administrator of the estate of Wilson H. Tousey, deceased, against the Hertz & Hosbach Company, for goods sold and delivered. From a judgment for plaintiff, defendant brings error. Plaintiff brought suit to recover the value of two car loads of birch lumber sold by the deceased to the defendant. The first sale was made through Mr. Tousey’s agents, commission merchants in Detroit; Mr. Tousey living in Bay City.

Bill by Louis H. Williams against Julia Williams and others to set aside a deed. From a decree for complainant, defendant Julia Williams appeals. On October 17, 1884, complainant and defendant Julia Williams, being the owners as tenants in common of the land here in controversy, executed a warranty deed to one Melhose. At the same time Melhose executed a conveyance of the same land to Henry Williams, the husband of the defendant Julia.

<p>Fraudulent Conveyanoes — Bill in Aid of Execution — Prima Facie Case — Husband and Wife.</p> <p>The prima facie case which is established under Act No. 99, Pub. Acts 1897, on a bill in aid of execution, by introduction of the judgment, execution, and levy, and proof of‘the conveyance complained of, may be overcome by convincing testimony that the grant was in fulfillment of an agreement to make the deed in payment of a bona fide loan, although the grantee is the debtor’s wife.</p>

<p>Life Insurance — Misrepresentation—Directed Verdict.</p> <p>A life-insurance policy was based upon a written application which stated, among other things, that the applicant had never been refused insurance; nor been given an unfavorable opinion by a physician with reference thereto. In an action on the policy, the medical examiner of a benefit association testified that, prior to the application in question, he had examined decedent upon his application for membership in the order, and had found traces of Bright’s disease, and had so informed him, but had withheld the report at decedent’s request. There was evidence, also, that decedent had told a member of the order that he was ineligible because of the examination. The records of the lodge did not disclose the application, but it was shown that it was not the custom to record applications unless accompanied by the report of the examiner. The only evidence relied on by plaintiff to contradict this showing of misrepresentation was the statements of the insured in his application, and certain statements by the medical examiner as to the result of his examination, claimed to be inconsistent with his testimony. Held, that defendant was entitled to have the verdict directed in its favor.</p>

Judgment creditor’s bill by the Central National Bank of Cleveland, Ohio, against James Graham. From an order denying an application to stay receivership proceedings, and adjudging defendant guilty of contempt in failing to respond to the summons of a circuit court commissioner, defendant appeals.

<p>Error to Shiawassee; Smith, J.</p> <p>Case by Martinus S. Britton against the Michigan Central Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Bill by Richard Davis against the township of Frankenlust, Jacob Gates, and others, to restrain the further flooding of complainant’s land, and for an accounting for damages already done. From an order overruling a demurrer, to the bill, defendants appeal.

Bill by Jacob Beck and others, copartners as Jacob Beck & Sons, against the Railway Teamsters’ Protective Union, the Detroit Council of Trades and Labor Unions, George Innis, and others, to enjoin the boycotting of complainants’ business. Prom a decree enjoining merely the use of violence or threats of violence, complainants appeal.

Assumpsit by George R. Nash, assignee of Howard R. Gladding, against the H. R. Gladding Company, for the breach of a contract of employment. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Trover by John Vanosdall, deputy sheriff of Eaton? county, .against Herbert H. Hamilton, the Michigan State-Bank of Eaton Rapids, and Thomas M. Sloan. From a judgment for defendants on verdict directed by the court,, plaintiff brings error.

Assumpsit by the people of the State of Michigan, for thé use and benefit of Frank B. Holmes and Albert R. Strachan, copartners, against Thomas P. Sheehan, Robert C. Sheehan, John Archer, and John C. McDonald, upon a statutory bond. From a judgment for plaintiffs for less than the amount claimed, both parties bring error.

<p>Error to Sanilac; Beach, J.</p> <p>Replevin by William Roberts against George Denio. From a judgment for defendant, plaintiff brings error.</p>

Assumpsit by William Newman against John B. Olney to recover the value of property converted by defendant. From a judgment for plaintiff, defendant brings error.

Garnishment proceedings by Edward J. Dunn against the Detroit Savings Bank, as garnishee of Thomas Swan and others. The Union Trust Company intervened as claimant of the fund. From a judgment for claimant, plaintiff brings error.

<p>Certiorari by Clark W. Youngs to review the action of Roscoe D. Dix, auditor general, in issuing a certificate of error.</p>

Mandamus by Lovina Harris to compel John O’Gorman, justice of the peace, to issue a writ of retorno habendo. From an order granting the writ, respondent brings certiorari.

Bill by David Wright and another against the auditor general and others to restrain the collection of certain taxes. From a decree for defendants, complainants appeal.

Mandamus by Sarah J. Laroue to compel Edward H. Conway, county treasurer of Chippewa county, to receive and file a liquor bond. From an order denying the writ relator brings certiorari.

Mandamus by Conrad Pfeiffer to compel the board of education of the city of Detroit to discontinue the use in the public schools of a book known as “Readings from the Bible.” Prom an order granting the writ, respondent brings certiorari.

Exceptions before judgment from superior court of Grand Rapids; Burlingame, J. Certiorari to Jackson; Peck, J. Frank J. Dettenthaler was convicted of selling oleomargarine in violation of Act No. 76, Pub. Acts 1897. Reversed.

<p>1. Statutes — Subject-Mattek^Sufficiency of Title.</p> <p>The subject-matter of a statute intended to prevent adulteration of vinegar, or deception in its sale, is sufficiently expressed by a title reading, “An act in relation to the manufacture and sale of vinegar.”</p> <p>2. Same — Construction—Vinegar—Standard Ingredients.</p> <p>Act No. 71, Pub. Acts 1897, forbidding in section 1 the sale of cider vinegar containing less than one and three-fourths per cent, of cider vinegar solids, and providing in section 2 that “fermented vinegar” shall contain, in addition to such per cent, of solids contained in the fruit or grain from which it is made, two and a half tenths of one per cent, ash or mineral matter, requires that all fermented vinegar should come up to such standard, whether made from fruit or grain.</p> <p>3. Same — Public Policy — Legislative Considerations.</p> <p>In a prosecution for the sale of vinegar not in compliance with the statutory standard, a contention that the test provided for is arbitrary, unscientific, and not calculated to protect the public health against spurious vinegar, will not be considered, since the investigation of facts entering into questions of public policy merely is exclusively within the province of the legislature.</p> <p>4. Same — Reasonableness—Province of Jury.</p> <p>Tne question of the reasonableness of a statute cannot be submitted to a jury, to be determined from expert testimony.</p> <p>5. Pure-Food Laws — Prosecutions for Violation — Due Process of Law.</p> <p>One charged with the sale of vinegar not in compliance with the statutory standard is not entitled to have a sample of the vinegar left with him by the prosecution, nor can he complain, upon conviction, that he was deprived of his property without due process of law because he was unable to obtain a sample for analysis, where he was not prevented from doing so by any person interested in the prosecution of the suit.</p> <p>6. Same — Intent.</p> <p>Guilty knowledge or intent is not an element of the offense of selling vinegar below the standard prescribed by Act No. 71, Pub. Acts 1897.1</p>

<p>Quieting Title — Maintenance of Bill — Procuring Tenant to Surrender Possession.</p> <p>The fact that defendant in a bill to quiet title lost possession of the lands in suit through the action of complainant’s agent in inducing defendant’s tenant to surrender possession in order to enable complainant to maintain the bill under 3 How. Stat. § 6626,'which authorizes such a suit “against.any person not in possession,” is no defense, where defendant’s title had been cut off by a valid tax deed to complainant; the tenant having the right, under such circumstances, to attorn.</p>

<p>1. Assumpsit — Breach of Warranty — Damages.</p> <p>Assumpsit will lie to recover damages for the breach of an. express warranty as to the quality of an article sold, although, such damages are consequential in their nature.</p> <p>2. Sale — Defective Tank — Negligence of Purchaser — Question for Jury.</p> <p>The question as to whether a purchaser of tanks for the purpose of storing cider therein should, as a reasonably prudent man, have taken warning from the bursting of a lug on the empty tank, and removed his cider from the other tank, which subsequently burst, is for the jury, where the vendor assumed to account for the first break, and assured the purchaser that the tanks were all right.</p>

<p>Equity — Conveyances—Parol Agreement — Specific Performance.</p> <p>Complainant, after deeding land to defendant upon the parol understanding that defendant should give back a “life-lease deed” to complainant, by the terms of which they might occupy the land together until the death of either, when the title should vest in the survivor, continued to live upon the premises with defendant, and to expend labor and money for the betterment of the land. Held, that there was such part performance as entitled complainant, upon defendant’s refusal to execute the deed, to maintain a bill under 2 How. Stat. § 6183, for specific performance.</p>

Bill in aid of execution by Jacob Kozminski and wife against John Kuzniak and wife. From a decree dismissing the bill, complainants appeal.

<p>1. Vendor and Purchaser — Fraudulent Representations — Evidence — Question for Jury.</p> <p>In an action by a vendor to recover the price of land, defendant testified that plaintiff represented to him, as an inducement to purchase, that he had examined the land, and found, at a certain depth below the surface, the same plaster rock that was to be found on adjoining land, where there were valuable quarries, with which defendant was familiar; that, relying on such representation, he made the purchase; and that the land proved to be worthless for plaster purposes. Held, that the evidence justified the submission to the jury of the question of plaintiff’s fraud.1</p> <p>O. Same — Defense op Fraud — Estoppel to Assert — Recoupment.</p> <p>The fact that a vendee of land paid a balance on the purchase price, and received his deed, after the discovery of fraud on the part of the vendor, will not estop him to recoup his damages occasioned by the fraud, in an action by the ' vendor upon the vendee’s guaranty of stock transferred as part of the consideration.</p> <p>3. Same — Evidence op Value.</p> <p>In support of a defense of fraudulent representations as to the value of land, the vendee may show the price paid by the vendor.</p>

Bill by William L. Webber, executor and trustee of the estate of Jesse Hoyt, deceased, against Frank Lawrence,. Edward Corning, and others, to foreclose a mortgage. From a decree of foreclosure denying a personal decree-against defendant Corning, complainant appeals.

, presiding. Bill by Hugo A. Wineman against the Fisher Electrical Manufacturing Company and others to enforce a labor claim, under 3 How. Stat. § 8749o. From a decree dismissing the bill, complainant appeals.

Assumpsit by John L. Wright against John Reinelt And Charles Reinelt for work and labor. From a judganent for plaintiff against defendant Charles, the latter '¡brings error.

Assumpsit by Frank E. Wicking and Frederick J. Storrer, copartners as Wicking & Storrer, against the Citizens’ Mutual Fire Insurance… Held: and the final result was as stated. This company was, however, advised that the inventory in question was not the one first prepared by you immediately after the fire, and on which differences arose between you and the representatives of the companies on the ground when the agreement for submission to enter into appraisal was made,…

Case by Hattie Stevenson against the Detroit & Mackinac Railway Company to recover the value of a horse killed on defendant’s track. From a judgment for plaintiff, defendant brings error.

Bill by John M. Zinser against William H. Anderson and others, to set aside a trust deed. From a decree dismissing the bill, complainant appeals.

Bill by William H. Birdsall against Selina Birdsall for the specific performance of a parol contract for a lease of land. From a decree dismissing the bill, and granting defendant affirmative relief upon her answer in the nature of'a cross-bill, complainant appeals. William Birdsall died, testate, February 22, 1891, leaving a widow, the defendant, and five sons, including the complainant.

Case made from Chippewa; Steere, J. Summary proceedings by William J. Freeborn against Charlotte La Londe and John F. Moloney to recover the possession of lands. The circuit judge directed a verdict for defendants, and complainant assigns error.

Assumpsit by Charles Lamb against Adelbert Rathburn to recover an amount due under a lease. From a judgment for defendant upon the allowance-of a set-off, plaintiff brings error. In January, 1892, plaintiff leased the defendant his farm for five years. The rent was $450 per year, but, if paid on the 1st day of March each year, to be $400.

Bill by Edward Lawton and others against Henry W. Richardson, John Phillips, Thomas E. Hall, William B. Hall, and Emma H. Hall, to enforce certain labor claims under 3 How. Stat. § 8749o. From a decree for complainants, defendants Hall appeal.

Assumpsit by Howard H. Avery and another against Emily M. Burrall for installing a steam-heating plant. From a judgment for plaintiffs, defendant brings error.

<p>Civil Damages — Saloon-Keeper’s Bond — Joint Action — Remission of Judgment.</p> <p>An action for civil damages against a saloon keeper and his bondsmen is joint, and a remission by plaintiff of so much of a judgment recovered in such action as is in excess of the penalty of the bond inures to the benefit of the principal as well as of the sureties.</p>

Leonard H. Merrifield, a legatee under the will of Curtis Merrifield, deceased, petitioned for the probate of said will, and the appointment of William J. Just as administrator with, the will annexed. The probate court appointed Charles Brown as executor, and an appeal was taken to the circuit court, where the order of the probate court was reversed and the prayer of the petition granted. Charles Brown brings certiorari. Curtis Merrifield died testate.

Mandamus by Fred A. Maynard, Attorney General, on the relation of George F. Moor? and others, to compel the American Express Company to receive and forward goods without requiring the payment of the stamp tax by the consignor. From an order granting the writ, respondent brings certiorari.

<p>Error to superior court of Grand Rapids; Burlingame, J.</p> <p>George Williams was convicted of assault with intent to do great bodily harm less than the crime of murder.</p>

Clarence Phillips was convicted of forgery, and sentenced to imprisonment for three years in the state prison at Jackson.