Volume 119 — Michigan Reports

Cross-appeals from Eaton'; Dodds, J., presiding. Bill by Fred S. Belcher, executor of the last will and testament of Frank S. Belcher, deceased, against Jonathan J. Curtis and Henry H. Curtis, copartners as Curtis & Son, and others, and also against Swift & Co., a corporation, and Wenzel Schrenk and others, copartners -as Schrenk & Co., judgment creditors of Curtis & Son, to foreclose a mortgage.

, presiding. Judgment creditor’s bill by Frank E. Richards against James C. McCormick, Hugh McCormick, Jr., and Hugh McCormick, Sr. From a decree dismissing the bill as to Hugh McCormick, Sr., complainant appeals. This is 'a suit in equity by Frank E.. Richards, a judgment creditor, against James C. McCormick and others, to reach property claimed to have been fraudulently transferred.

Replevin by the Pinkerton Bros. Company against Joseph H. Bromley. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by George T. Smith against the George T. Smith Manufacturing Company, a corporation, and others, stockholders therein, to compel a contribution of capital and an accounting. The George T. Smith Mill Building Company, as a creditor of defendant corporation, petitioned for leave to intervene. From an order dismissing the petition on defendants’ demurrer thereto, petitioner appeals.

Petition by John Ward against Frederick P. Obenauer, Mary B. Brownell, and others, for execution for a deficiency on foreclosure of a land contract. From an order granting the prayer of the petition,. defendant Mary B. Brownell appeals.

Mandamus by Adolph Marx and Herman Marx to compel William E. Grove, acting circuit judge of Wayne county, to vacate an order framing an issue in garnishment proceedings.

Assumpsit by the people of the State of Michigan, for the use and benefit of John D. Emack, against John W. Thompson as principal, and Gustave Hiñe and Darwin O. Smalley as sureties, upon a statutory bond. Erom a judgment for plaintiff on verdict directed by the court, defendants bring error.

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

Assumpsit by the people of the State of Michigan, for the use and benefit of the Winkle Terra-Cotta Company, against Joseph W. Cotteral, Sr., and Joseph W. Cotteral, Jr., copartners, as principals, and Charles E. Bresler and John E. Calnon as sureties, upon a statutory bond. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

, presiding. Bill by Frederick pi. Bolton against Robert L. Chope for specific performance of contract and for an accounting. From a decree dismissing complainant’s bill, and granting affirmative relief to defendant upon his answer in the nature of a cross-bill, complainant appeals.

Covenant by Samuel A. McPherson against Benjamin W. Pinch and Charles M. Beecher to recover the rent due upon a lease. From a judgment for plaintiff, defendants bring error. Suit to recover the rental upon a lease of a mill property. Defendant Pinch was the owner of the property, and exchanged it with plaintiff for property in Battle Creek, where the latter resided. The property was situated in Olivet, where defendants resided.

Bill by Oliver B. Campbell and Thomas P. Steadman against George Bane, impleaded with Horace N. Keys and Antha D. Keys, to foreclose a mortgage. From an order overruling a demurrer to the bill, defendant appeals. The bill contains the following allegations: Complainants are partners engaged in a banking business at Elsie, Mich. Defendant Horace N. Keys was once associated with them in the same business, carried on in the name of the Elsie Bank.

Assumpsit by James Grant against the city of Detroit for work and labor. From a judgment for plaintiff, defendant brings error. Plaintiff entered into two contracts with defendant to pave certain streets with cedar blocks on concrete. The streets were traversed by double street-car tracks. The contract did not include these tracks or the space between them. This space had been previously paved. Each contract involving the same question, we will refer to one only.

Bill by Dewitt O. Spaulding and Clarence A. Ligbtner against William O’Connor and Roscoe D. Dix, auditor general, to review a tax sale. From a decree setting aside the sale on terms, all parties appeal.

Mandamus by Washburn Horning to compel the board of canvassers of Saginaw county to count certain ballots rejected by it as invalid. From an order granting the writ, respondent brings certiorari.

Replevin by Martha E. Eldridge against Nathan Hub-bell. From a judgment reversing, on certiorari, the judgment of a justice of the peace, plaintiff brings error.

<p>Appeal from Saginaw; Snow, J.</p> <p>Bill by Elizabeth Landry against James Landry for a divorce. From a decree for complainant, defendant appeals.</p>

<p>1. Malicious Prosecution — Probable Cause — Evidence.</p> <p>■ Upon a review of the testimony in an action for malicious prosecution, it was held that the question whether defendant had probable cause for making the complaint upon which the action was based was properly left to the jury.</p> <p>2. Same — Advice oe Prosecutor.</p> <p>In an action for malicious prosecution, evidence by the prosecuting attorney that the defendant did not, at the time of entering complaint, make full disclosure of the facts to him, is inadmissible, even though defendant gave notice with his plea that he would show advice of the prosecuting attorney after a full statement of the facts, if, upon the trial, he expressly disclaims having relied upon such advice.</p> <p>3. Same — Instructions.</p> <p>In an action for malicious prosecution, where the facts are in dispute, the court should state hypothetically what facts, if found, would constitute probable cause, and not leave the jury to determine the question under a general definition.</p>

, presiding. Bill by William P. Fuller against the Detroit Loan & Building Association, John F. Higginbotham, and Thomas Y. Leonard, to enforce a mechanic’s lien. From a decree for complainant, defendant association appeals.

Assumpsit by Michael B. Cronin and Thomas Cronin, for the use and benefit of Milton M. Rose, against the Fire Association of Philadelphia, on a policy of insurance. From a judgment for plaintiffs, defendant brings error.

Case by Ella M. Lang, administratrix of the estate of Joseph M. Lang, deceased, against the H. W. Williams Transportation Line, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.

Replevin by Charles Gf. Forster and Matthew A. Burns against Franklin H. Brown, city treasurer of Menominee, to recover property seized under a tax warrant. From a .judgment for defendant, plaintiffs bring error.

Stewart, deceased, against the Michigan Central Railroad Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.

Bill by Laura Berkey against George W. Burchard, Jr., John Macfie, Francis Lord, and others, to review a tax sale. Defendant Lord filed an answer in the nature of a cross-bill, praying for like relief. Defendant Burchard also filed an answer in the nature of a cross-bill, praying for a decree quieting his title and for a writ of assistance.

<p>Deeds — Quieting- Title — Evidence.</p> <p>A husband and his wife bought realty in her name, and took a deed therefor when §1,900 had been paid on the price. Four hundred dollars was furnished by her, and the balance was paid out of profits of the husband’s business, in which he was assisted by his wife and daughter. On the wife’s death, their two children deeded the property to the husband. Shortly before his remarriage, he conveyed to the daughter, , and explained to his second wife that it was done to secure to the daughter a §500 interest in the property, and that she would 'reconvey when requested. Although talked of, a reconveyance was not made until six years afterwards. The deed was delivered at that time, but was handed back to the daughter for safe-keeping; she claiming it was made to facilitate a sale by her father. Held, that the realty belonged to the father, subject to a §500 interest in the daughter.</p>

Clair; Nance, J. Bill by John Edward Jenkinson, an infant, by John Jenkinson, his next friend, against Sarah E. Brooks and others, to set aside certain deeds. From a decree dismissing the bill, complainant appeals. The following statement of facts is taken from the finding of the circuit judge: “George Brooks, at the time of his death, left children by a former marriage, Edward, Lillian, and Mary.

<p>Exceptions before judgment from Berrien; Coolidge, J.</p> <p>Albert Malsch was convicted of refusing and neglecting to support his family.</p>

The Home Savings Bank presented claims against the estate of J. Huff Jones, deceased. The claims were allowed by the commissioners, and Robert Hosie and Griffin D. G. Thurston, executors, appealed to the circuit court. From a judgment there for claimant, defendants bring error.

<p>Mandamus by the Detroit, Grand Rapids & Western Railroad Company against Sybrant Wesselius, commissioner of railroads.</p>

<p>Railroad Companies — Taxation — Gross Income — Switching Receipts.</p> <p>A sum received by a railroad company for switching cars is a part of its gross income, and taxable as such, under Act No 328, Pub. Acts 1897.</p>

<p>Error to Wayne; Frazer, J.</p> <p>Assumpsit by Henry H. Gore against the Canada Life Assurance Company for agent’s commissions. From a judgment for plaintiff, defendant brings error.</p>

Carpenter, and Hosmer, JJ. Mandamus by Thomas W. Fitzsimmons t¿ compel the board of canvassers of the city of Detroit to issue to relator a certificate of election as justice of the peace. An order granting the writ was affirmed in the Supreme Court, on certiorari, December 14, 1898, without the filing of a written opinion.

<p>Error to Oakland; Smith, J.</p> <p>Trover by William T. Smith against Caleb J. Sprague. From a judgment for defendant on verdict directed by ' the court, plaintiff brings error.</p>

, presiding. Assumpsit by Teófila Malicki against the Chicago Guaranty Fund Life Society on a policy of insurance. From a judgment for plaintiff, defendant brings error. This is an action upon a policy of insurance issued upon the life of John Malicki, the husband of plaintiff, who was the beneficiary named in the policy. The application contained the following questions and answers: “Q. Do you drink beer, ale, wine, or spirits?

Assumpsit by Jonathan Boyce against Columbus C. Barker for goods sold and delivered. From a judgment for plaintiff for less than the amount claimed, he brings error.

Assumpsit by Anna Toss and others against the Connecticut Mutual Life Insurance Company on a policy of insurance. From a judgment for defendant on demurrer to the'declaration, plaintiffs bring error.

, presiding. Ejectment by Cora M. Carpenter against Augustus D. Carpenter and another for the undivided one-fifth of certain premises. From a judgment for defendants on verdict directed by the court, plaintiff brings error. With their plea of the general issue, defendants gave notice of a former suit in ejectment between certain parties, alleging it to be a bar to any right or title of the plaintiff to the premises described in the declaration.

Assumpsit by Clarence I. Martin against Ashley B. Curtis for goods sold and delivered. From a judgment for defendant, .plaintiff brings error.

<p>1. Insurance Companies — Agent’s Bond — Annulment by State Agent — Release op Surety — Instructions.</p> <p>An instruction, in an action by an insurance company upon a bond given by its agent, that Jhe surety was liable thereon unless the company annulled or surrendered the instrument, is not misleading as indicating the necessity of some formal affirmative act on the part of the company, where in other portions of the charge the jury were told that the State agent might act for the company, and that, if he made a new arrangement with the agent, the surety would not be liable for sums advanced thereunder.</p> <p>2. Same — Evidence—Books of Account — 'Verification.</p> <p>In an action by an insurance company upon a bond given by an agent, the books of the company are admissible in evidence to show the balance due, where their correctness is testified to by the person who has supervision of them.</p>

<p>Error to Ionia; Davis, J.</p> <p>Assumpsit by Joseph J. Granger against the Manchester Fire Assurance Company, of Manchester, England, on a policy of insurance. From a judgment for plaintiff, defendant brings error.</p>

Certiorari by Charles F. Funke to review the action of William A. Hurst, circuit court commissioner of Wayne county, in granting a discharge to one imprisoned on civil process.

Bill by Charles H. Scribner and another against the city of Grand Rapids and others to set aside a sidewalk assessment. From a decree for complainants, defendants appeal.

Creditor’s bill by Lewis M. Viers against the Detroit Paper-Package Company, William B. Thompson, James N. McBride, and Hubert P. Dunbar. From a decree for complainant, defendants McBride and Dunbar appeal. Defendant the Detroit Paper-Package Company, a corporation, was organized in 1892, with a capital stock of $15,000. In 1894 its stock was increased to $30,000. It had not proved a successful venture; it was in debt, and its creditors were pressing for payment.

<p>Error to Muskegon; Russell, J.</p> <p>Replevin by A. E. and H. H. Stever against Horace Brown. From a judgment for plaintiffs, defendant brings error.</p>

Assumpsit by the city of Menominee against the S. K. Martin Lumber Company to recover a tax on personal property. From a judgment for plaintiff, defendant brings error. This is an action of assumpsit, brought to recover taxes claimed to be due from the defendant for the year 1894. The property assessed was lumber situated in the city of Menominee.

, presiding. Assumpsit by the First Baptist Church of Jackson against the Citizens’ Mutual Fire Insurance Company on a policy of insurance. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Mandamus by Thomas Bigelow and others to compel David C. Brooks and William F. Wood, highway commissioners of the townships of Southfield and Farmington, respectively, to rebuild a bridge on a town-line road. From an order granting the writ, respondents bring certiorari.

<p>Error to Calhoun; Smith, J.</p> <p>Ejectment by Edwin Bowen and others against Patrick Brogan and wife. From a judgment for defendants, plaintiffs bring error.</p>

<p>Agency — Authority to Retain Attorney — Evidence.</p> <p>The question as to the authority of an agent to employ an attorney for defendant, and to agree upon his retainer, should be submitted to the jury, upon evidence that the agent represented to the attorney that he had such authority, that the latter refused to accept the retainer unless a claim that he held against the adverse party to the suit was settled for a specified amount, that the defendant gave the attorney his note for that amount, receiving an assignment of the claim, that the .'attorney then agreed to be retained, and afterwards had conversations with the defendant about what had taken place between himself and the agent, that the defendant then desired him to confer with another attorney, and to take part in the trial, that he did confer with the latter, and made briefs and sent them to him, and that upon one occasion the defendant remarked, “You are my attorney, and not the agent’s,” and that, after the suit was settled, the defendant asked for the attorney’s bill.</p>

Case by the Antiseptic Fiber Package Company against Eugene Klein for deceit. From a judgment for plaintiff for less than the amount claimed, it brings error.

Assumpsit by Arthur It. Antisdel against John Can-field for commissions on the sale of land. From a judgment for plaintiff, defendant brings error.

<p>Slander — Damages—Injuries to Feelings.</p> <p>Act No. 216, Pub. Acts 1895, § 1, which provides that, in actions for slander, only actual damages to property, business, or feelings are recoverable, did not abrogate the common-law rule that damages for injuries to feelings are recoverable as general damages, without being specially pleaded or proved.</p>

Henry A. Batchelor appealed from an order of the pro-hate court allowing the final account of Edward W. Harris, executor of the last will and testament of Jacob E. Batchelor, deceased. From a judgment affirming the order, he brings error.

<p>Exceptions before judgment from Emmet; Adams, J.</p> <p>Earl Schoonmaker was convicted of statutory rape.</p>

Case by Mathias Steyskal against the Detroit Journal Company and others for libel. From the judgment rendered, both parties bring error.

, presiding. Assumpsit by Mary A. Corbett against Peter W. Schulte to recover moneys paid on a land contract. From a judgment for plaintiff, defendant brings error. On December 14, 1885, Peter Schulte, defendant’s grantor, and Patrick H. Corbett, entered into a land-contract, by which the former agreed to sell to the latter the north 26 feet of lot 191 of the Stanton farm, in the city of Detroit. Upon the lot was a small house, resting upon' posts.

<p>Fire Insurance — Incumbrances—Breach oe Warranty.</p> <p>Plaintiff purchased on contract 10 acres of land, being a part of a tract of 80 acres, which was mortgaged for $500. In his application for insurance he stated that his property was incumbered for §350; that being the amount of the unpaid balance on the purchase price. By the terms of the insurance contract, the statements in the application were made warranties. Held, that there was a breach of warranty avoiding the policy. American Ins. Co. v. Gilbert, 27 Mich. 429, distinguished.</p>

Assumpsit by Washington Bingham and. another against William D. Brands and another for the breach of a contract of sale. From a judgment for defendants on demurrer to the declaration, plaintiffs bring error.

Creditor’s bill by the Atlantic Dynamite Company against the Ropes Cold & Silver Company. The Ishpeming National Bank and Henry Johnson and others came in under the decree, and established claims against the defendant. The claims of Johnson and others for labor were subsequently declared a first lien on defendant’s property, and from that decree the claimant bank appeals.

Bill by the Oconto Company against Alfred Lundquist and Charles Fridstrom to declare the priority of complainant’s title to certain timber, and to restrain the prosecution of an action of trespass. From a decree dismissing the bill, complainant appeals.

<p>Mandamus by Cornelius A. Gallagher to compel the board of supervisors of Cheboygan county to pass upon a claim.</p>

Bill by Abby Corby and others against Frances A. Moran and others to set aside certain deeds. From a decree dismissing the bill, complainants appeal.

Ejectment by John Dawson against Oliver Peter, Harlan P. Smith, and John J. McTavish. From a judgment for plaintiff on verdict directed by the court, defendants bring error.

), J., presiding. Case by Augusta Detzur, an infant, against the B. Stroh Brewing Company for personal injuries. From a judgment for plaintiff, defendant brings error.

<p>Mandamus by Richard Steels to compel Fred J. Russell, circuit judge of Oceana county, to quash a writ of attachment.</p>

<p>1. Condemnation Proceedings — Cities of Fourth Class — Qualifications of Jurors — Constitutional Law.</p> <p>Section 17, chap. 25, of the general act for the incorporation of cities of the fourth class (Act No. 215, Pub. Acts 1895), which provides for a trial de novo in the circuit court, before a jury of the regular panel, on an appeal fi;om justice’s court in condemnation proceedings instituted under that chapter, is unconstitutional, since circuit court jurors are not necessarily freeholders from the vicinage, who only, under article 15, § 15, and article 18, § 2, of the Constitution, are qualified to sit in such proceedings.</p> <p>2. Same — Waiver of Rights by Appeal.</p> <p>The fact that an appeal is taken in such proceedings from justice’s court, where, under the statute', a jury properly qualified is provided, cannot be construed as a waiver of the right to a constitutional jury in the circuit.</p> <p>3. Same — Statutes—Invalid Provisions — Construction.</p> <p>Since the right of an appeal and of a trial de novo in the circuit is an essential part of the proceeding provided for in chapter 25 of the act, the unconstitutionality of the section respecting appeals invalidates the entire chapter.</p>

, J. Bill by Orrin N. Moon and another against Wesley J. Mills to compel the removal of obstructions from an alley. From a decree dismissing the bill, complainants appeal.

<p>Appeal from Van Burén; Buck, J.</p> <p>Bill by George Lowry against Alvin Bennett and others to foreclose a mortgage. From a decree for complainant, defendant Bennett appeals.</p>

<p>Appeal from Wayne; Donovan, J.</p> <p>Bill by Henrietta P. Graham against Viola G; Moffett and John S. Moffett to enforce a vendor’s lien. From a decree for complainant, defendants appeal.</p>

<p>Witnesses — Reputation eor Veracity — Competency.</p> <p>Testimony that plaintiffs reputation for truth and veracity was bad was properly stricken out where cross-examination showed that the only basis for the testimony was that the witness had heard that plaintiff did not pay his debts.</p>

<p>1. Witnesses — Husband and Wife — Retrial.</p> <p>The fact that a wife, on the trial of an action against her, permitted her husband to be sworn as a witness for plaintiff, does not, where the witness dies pending a retrial, render his former testimony admissible over the wife’s objection.</p> <p>2. Fraudulent Conveyances — Burden of Proof.</p> <p>Act No. 99, Pub. Acts 1897, changing the rules of evidence by placing upon the defendant in a bill in aid of execution the burden of showing the good faith of the conveyance complained of, has no application in an action upon a note alleged to have been executed by a married woman in settlement of the payee’s right to proceed against property claimed to have been fraudulently conveyed to her by her husband.</p>

Assumpsit by the Cumberland Building Loan Association against L. Colfax Gibbs as principal, and William O’Connor as surety, upon an agent’s bond. From a judgment for plaintiff, defendant O’Connor brings error.

<p>Error to Baraga; Haire, J., presiding.</p> <p>Replevin by Michael J. McCabe against James Loons-foot. From a judgment for defendant, plaintiff brings error.</p>

Assumpsit by the Aurora Iron Mining Company against the city of Ironwood to recover taxes paid under protest. From a judgment for defendant, plaintiff brings error.

Petition by Leroy Brooks and others against Boscoe D. Dix, auditor general, and William G. Roche, to set aside a tax sale. From a decree for petitioners, defendant Roche appeals.

<p>Error to Wayne; Donovan, J.</p> <p>Case by Otto Perlick against the Detroit Wooden-Wáre Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Bill by Hendrik J. Roelofs against John Wever and Alice Wever to restrain proceedings for an eviction, and for an accounting. There was a decree for complainant, and defendants filed a petition for a rehearing. From an order denying the petition, defendants appeal.

, presiding. Bill by the Clare County Savings Bank against William H. Goodman and wife to foreclose a mortgage. From a decree for complainant, defendants appeal.

Case made from Iron; Stone, J. Trover by the John A. Tolman Company against Man-ville B. Waite, sheriff of Iron county. Plaintiff had judgment, and defendant assigns error.

Assumpsit by Ka jetan Kreibich against George H. Martz to recover moneys paid under a land contract. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Debt by Levi T. Griffin against Greenleaf O. Wattles upon a judgment. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Petition by Birney J. Morgan against John J. Tweddle and others to correct a tax decree, and to set aside the sale thereunder. From a decree dismissing the petition, petitioner appeals.

Assumpsit by the Foster, Charles & Ewen Company against Rebecca L. Felcher for goods sold and delivered. From a judgment for plaintiff, defendant brings error.

Mandamus by Oliver H. Wattles to compel Willard M. Lillibridge, circuit judge of Wayne county, to postpone the trial of the statutory issue in garnishment proceedings pending an appeal in the principal suit.

, presiding. Case by Julius Hasse against Julius Freud, Daniel B. Newkirk, and Sigmund Aronheim for deceit. From a judgment against defendants Freud and Newkirk, they bring error.

<p>Error to Calhoun; Smith, J.</p> <p>Debt by the Mason & Hamlin Company against William C. Gage as surety upon a bond. From a judgment for plaintiff, defendant brings er-ror. •</p>

<p>1. Creditor’s Bill — Liens.</p> <p>In this State, the filing of a creditor’s bill does not, of itself, give the complainant a lien upon the property as against other creditors. German-American Seminary v. Saenger, 66 Mich. 249, followed.</p> <p>2. Same — Death of Debtor — Abatement of Suit.</p> <p>A creditor’s bill, if no lien has attached to the property, will abate on the death of the judgment debtor.</p> <p>3. Fraudulent Conveyances — Power of Administrator — Construction of Statutes.</p> <p>2 How. Stat. § 5884, making it the duty of an administrator, where there is a deficiency of assets in the estate, to sue for property “conveyed” by the deceased in fraud of creditors, is declaratory of the common law, and should be liberally construed, to cover a case where the deceased paid the consideration for property, and had title made to his wife in fraud of creditors.</p>

<p>1. Malicious Injury to Property — Title—Evidence.</p> <p>The question whether a deed, offered in evidence by the people in a prosecution for the malicious destruction of a fence, correctly described the property on which the fence was erected, is immaterial, where it appears that such property was occupied by complainant’s grantor at the time the deed issued, and had been occupied by complainant under the deed for the statutory period of limitation.</p> <p>2. Same — Information—Designation op Persons.</p> <p>An averment in an information for malicious destruction of property, that it belonged to a specified church “society,” which word formed no part of the corporate name, does not render the information bad, in view of 2 How. Stat. § 9534, providing that no information shall be held insufficient because any person mentioned therein is designated by a descriptive appellation instead of his proper name, and 1 How. Stat. § 2, subd. 12, providing that, in the construction of statutes, the word “person” may extend to and be applied to corporations.</p> <p>3. Adverse Possession — Right oe Way.</p> <p>Where adjoining owners agreed that each might use the land of the other for a right of way until it should he wanted for some other purpose, such use was not adverse.</p> <p>4. Malicious Injury to Property — Evidence oe Malice — Expressions oe Ill-Will.</p> <p>In a prosecution for the malicious destruction of church property, evidence of respondent’s expressions of ill-will towards the members and officers of the church is competent, if directed towards them in their official capacities.</p>

Assumpsit by Cora Cooley against Hiram A. Kinney upon an account stated. From a judgment for plaintiff, defendant brings error. The former decision in this case is found in 109 Mich. 34. A reading of it will show the theory upon which it was then submitted to the court.

Bill by Mary A. Dennis, Arba Dennis, and Amelia Howell against Etta Dennis and Asa Dennis to set aside a deed. From a decree dismissing the bill, complainants appeal.

Joseph; Yaple, J. Summary proceedings by John G. Schurtz, administrator of the estate of Elemanda Bogert, deceased, against James W. Kelley and wife, to recover the possession of land. From a judgment for complainant, defendants bring error.

Bill by Charles S. Brown and David Richards, executors of the last will and testament of Benjamin Cotharin, deceased, against Charles R. Avery, Debbie J. Avery, and Edgar J. Osband, to foreclose a mortgage. From a decree for complainants, defendants appeal.

Case by Charles E. Hall against Sarah M. Murdock, impleaded with Gilson E. Murdock, for personal injuries. From a judgment for plaintiff, defendant brings error.

Case by Susan Williams against the city of West Bay City for personal injuries. From a judgment for plaintiff, defendant brings error.

Creditor’s bill by Jerome H. Remick against Herbert Bradley. Defendant was adjudged guilty of contempt in refusing to comply with an order directing the assignment of all his property to a receiver appointed by the court, and he appeals.

<p>Appeal from Wayne; Lillibridge, J.</p> <p>Bill by James R. French against Frank A. Cardoni to enforce a mechanic’s lien. From a decree for complainant, defendant appeals.</p>

<p>Error to Jackson; Peck, J.</p> <p>Augustus C. Mendenhall was convicted of bigamy, and sentenced to three years’ imprisonment in the state prison at Jackson.</p>

Bill by the Nowlin Lumber Company against Amelia B. Wilson to restrain interference with a logging railroad. From a decree dismissing the bill, complainant appeals.

Petition by the city of Marquette against Edwin C. Wilkinson and Albert E. Miller, assignees of James M. Wilkinson, deceased, the First National Bank of Marquette, and the Marquette County Savings Bank, to reach funds deposited by decedent in defendant banks, as being trust funds, to which petitioner is entitled as against decedent's general creditors. From a decree for petitioner, defendant assignees appeal.

<p>Mandamus by Frankie Howe Bordwell to compel Byron A. Snow, circuit judge of Saginaw county, to dismiss an appeal from probate court.</p>

Assumpsit by Edwin Bellows and Adelbert Bellows against the Crane Lumber Company for the breach of a contract to' assort logs. From -a judgment for plaintiffs, defendant brings error. Plaintiffs and defendant were engaged in lumbering. Plaintiffs had a mill on Betsie lake.- One Butler was also engaged in lumbering at the same place. The logs of these three parties came down Betsie river.

, presiding. Assumpsit by the village of L’Anse against the Fire Association of Philadelphia on a policy of insurance. From a judgment for defendant, plaintiff brings error.

Petition by Roscoe D. Dix, auditor general, for the sale -of lands delinquent for taxes: On objections filed by the Women’s Temperance Association of Manistee. From a decree for defendant, petitioner appeals.

Mandamus by the Anti-Kalsomine Company to compel William E. Grove, circuit judge of Kent county, to grant a motion for a bill of particulars. The declaration in this case is given in full in Church v. Anti-Kalsomine Co., 118 Mich. 219. After that decision was rendered, defendant demanded a bill of particulars of the plaintiff’s claim. Plaintiff refused to furnish it, and the circuit court refused to order it.

<p>Case by Melvin B. Church against the Anti-Kalsomine Company: On motion to dismiss a writ of certiorari, issued by a commissioner on defendant’s application.</p>

Assumpsit by Silas H. Raymond against T. Stewart White and Thomas Friant to recover an amount due under a contract for the manufacture of a patented article. From a judgment for plaintiff, defendants bring error.

<p>Error to Berrien; Coolidge, J.</p> <p>Assumpsit by Peter English against Patrick Yore on a promissory note. From a judgment for plaintiff, defendant brings error.</p>

<p>1. Trover — Conversion of Stock.</p> <p>Trover lies for the conversion of corporate stock.</p> <p>2. Same — Defenses—Fraudulent Assignment.</p> <p>In an action for the conversion of shares of stock left with defendant by an assignee for cancellation and the issuance of new certificates, which were not furnished, but the stock retained until the maturity of a debt due from the assignor, and then attached, the defendant cannot show that the assignment to the plaintiff was fraudulent.</p> <p>8. Same — General Issue — Special Defense — Attachment.</p> <p>That stock, for the conversion of which suit is brought, is held by virtue of an attachment, cannot be shown under a plea of the general issue, without notice of such defense.</p> <p>4. Trial — Remarks of Court.</p> <p>Language of the court indicating clearly to the jury his opinion of some of the important controverted facts is prejudicial error.</p>

Replevin by Simon Kirschbaum and others against Max Jasspon, Bernard Wolff, George L. Maltz, and others. From a judgment for defendants on verdict directed by the court, plaintiffs bring error.

Bill by George A. Warner and others against Ellen Warner and Annie B. Peters to set aside certain deeds. From a decree dismissing the bill, complainants appeal.

Case by August Hoeft against Jacob Kock, Charles Uelsmann, Gustave Rogge, and Albert Clemens, for alleged misrepresentations in the sale of corporate stock. From . a judgment for plaintiff, defendants Kock and tTelsmann bring error.

Bill by William I. Webster against Sarah A. Warner and others for the specific performance of a land contract. From a decree for complainant, defendants appeal.

Frazer, J. Summary proceedings by George Y. Candler, as trustee, against William Mitchell, to recover the possession of a house. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

<p>1. Sale — Fraudulent Purchase — Replevin—Return of Consideration.</p> <p>Whether plaintiff, in replevin for goods fraudulently purchased, must tender back negotiable paper, past due, given for the goods, or whether it is sufficient if he show at the trial that the paper has not been negotiated by him, — qucere.</p> <p>2. Same — After-Conceived Fraud — Goods in Transit.</p> <p>A sale of goods is not rendered fraudulent, so as to entitle the seller to rescind, by the buyer’s conceiving the intention, while the goods are in transit, of not paying for them.</p> <p>3. Same — Solvency of Buyer — Representations.</p> <p>A letter ordering goods to be shipped in car lots, for which the writer agrees to accept 30-day drafts for the cost of filling the order, and to send check for the balance of the price when the goods are unloaded, is not a representation that the writer is solvent.</p> <p>4. Same — Rescission.</p> <p>A sale may be rescinded, and the property recovered, where the buyer, at the time of purchasing, was insolvent or in failing circumstances, and did not intend to pay for the goods, or had no reasonable expectation of doing so, and fraudulently misrepresented or concealed the facts.</p>

Charles M. Webb presented a claim against the estate of Caroline Feather, deceased. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for claimant, defendant brings error.

<p>1. Garnishment — Indebtedness—Unaccepted Order.</p> <p>The drawee in an order for money is not indebted to the payee, so as to render the amount liable to garnishment by the latter’s creditors, before a written acceptance of the order.</p> <p>2. Same — Partnership Credit.</p> <p>A demand due to a partnership cannot be garnished in a suit against one partner alone.</p> <p>3. Same — Proceedings in Justice’s Court — Claimant’s Notice.</p> <p>Under 3 How. Stat. § 8057a, providing that, in garnishment in justice’s court, when the garnishee discloses that a person other than defendant claims the fund, “the garnishee may deliver such money * * * to the justice, who shall cause to be served on such claimant a written notice,” and that “after the service of such notice, and the payment * * * to the justice of the money, * * * the garnishee shall be discharged from all liability * * * in respect to the money * * * so paid,” the payment of the money to the justice is a condition precedent to his right to issue the claimant’s notice.</p> <p>4. Same — Notice to Partnership.</p> <p>Where the fund is claimed by a partnership, service' of the claimant’s notice on one of the partners only is insufficient.</p>

Case made from Mason; McMahon, J. Assumpsit by the Ludington Water-Supply Company against the city of Ludington for water rentals and for taxes paid under protest. Plaintiff had judgment, and defendant assigns error.

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

Case by George Litten against the city of Detroit for personal injuries. From a judgment for plaintiff, defendant brings error.

<p>1. Capias — Sufficiency of Affidavit — Knowledge of Af-</p> <p>' FIANT.</p> <p>An affidavit for a capias ad respondendum, alleged that, on a day specified, defendant said of and concerning deponent, “You (meaning this deponent) stole my wheel;” that defendant charged deponent with the larceny of said bicycle, saying to a certain police officer, “That woman (meaning this deponent) stole my wheel, and I want her locked up;” and that thereupon defendant caused deponent to be arrested by the police officer there present. Held, that the language sufficiently imported that some of the statements were made to affiant personally, and that she had personal knowledge of the facts stated in the affidavit.</p> <p>2. Same — Appearance.</p> <p>The fact that a writ of capias ad respondendum, following the form prescribed by Circuit Court Rule No. 1, states the time within which defendant may enter his appearance as 15 days after service of the writ, while the statute (2 How. Stat. § 7306), which must govern in such cases, allows 20 days after the return day, does not render the writ void.</p>

Trover by Oscar O. Ismond against Monroe L. Scongale, sheriff of Shiawassee county. Defendant, having appealed from an adverse judgment, applied to the Supreme Court for an order recalling an execution issued out of the circuit court.

Mandamus by the Wisconsin, Michigan & Northern Railway Company to compel Sybrant Wesselius, commissioner of railroads, and others, constituting the state railroad crossing board, to take official action upon a map.

<p>Appeal from Oakland; Smith, J.</p> <p>Bill by Julien Williams and Flora Burt, executor and executrix of the last will and testament of Ferdinand Williams, deceased, against Mary McKeand, Ferdinand W. Tilden, Florence Cooper, and Forrest Bradley Wright, for a construction of said will. From a decree for defendants, complainants appeal.</p>

<p>1. Personal Injuries — Declaration—Averment of Damages— Mental Suffering — Postponement of Marriage — Evidence.</p> <p>Plaintiff in an action for personal injuries is not entitled to damages for mental suffering occasioned by the postponement of her marriage on account of her injuries, where the declaration contains only a general averment of mental suffering, anxiety, and suspense.</p> <p>2. Same.</p> <p>Nor is plaintiff entitled in such case to have the circumstance considered by the jury in fixing the damages under the general averment, though submitted under instructions that it is not to be deemed, “independently, an element of damage.”</p> <p>3. Same — Declarations of Pain — Res Gest.®.</p> <p>Testimony concerning manifestations and declarations of present pain and suffering, by a witness who observed' them, is admissible, in an action-for personal injuries, as part of the res gestos, although it relates to a period some length of time after the accident occasioning the injuries.</p> <p>4. Same — Damages—Shame and Mortification.</p> <p>In an action for personal injuries, shame and mortification suffered by plaintiff from being obliged to use crutches as a result of the injuries sustained is a proper element of damages, where the declaration avers mental as well as physical suffering.</p> <p>5. Same.</p> <p>Under a declaration alleging injury to the hip, hip joint, pelvis, and thigh, a resulting disease of the sciatic nerve may be shown.</p>

Replevin by Clarence Conely and another against Charles P. Collins and another. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.

<p>Appeals prom Justice’s Court — Unavoidable Delay.</p> <p>Where one who had relied upon the assurance of his co-defendant, who was indebted to him, that he would seasonably perfect their appeal from a justice’s judgment by payment of the necessary costs, discovered, on the last day for perfecting such appeals, that his co-defendant had been intentionally misleading him with the purpose of preventing an appeal, and thereupon himself made unsuccessful efforts to find the justice and perfect the appeal in time, he was within 3 How. Stat. § 7005, authorizing the circuit court to grant an appeal after the expiration of the regular time therefor where the party complaining “has been prevented from taking the same by circumstances not under his control.”</p>

Certiorari by Elizabeth M. M. Anketell and Allen Shelden to review the action of Hiram S. Hayward, county drain commissioner, and Watson Beach, circuit judge, acting as judge of probate, of Sanilac county, in locating and establishing a drain.

<p>Mandamus by James H. Pound and others to compel Horace M. Oren, attorney general, to file an information in the nature of a quo warranto.</p>

Replevin by the Canadian Typograph Company, Limited, against Foster Macgurn. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Mandamus by Harry E. Sunderlin, administrator of the estate of Alonzo A. Sunderlin,- deceased, to compel the board of supervisors of ■ Ionia county to allow a bill for services rendered by deceased as a justice of the peace. From an order granting the writ, respondent brings certiorari.

Thomas O’Brien, -being in custody for the violation of a sidewalk ordinance of .the city of Grand Rapids, sued out a writ of habeas corpus.

Garnishment proceedings by William E. Baker against L. K. Parkhurst, J. W. Parkhurst, and James M. Reed, composing the firm of L. K. Parkhurst & Co., as garnishees of Thomas R. Welsh. Prom a judgment for defendants, plaintiff brings error.

<p>Error to Saginaw; Wilber, J.</p> <p>Replevin by John Keyes against Xavier B. Konkel and another. From a judgment for plaintiff, defendants bring error.</p>

Case by Mary F. Mackey, administratrix of the estate of James A. Mackey, deceased,' against the Newberry Furnace Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.

Bill by John McIntyre against Frank H. Wyckoif and others to set aside a mortgage foreclosure. From a decree dismissing the bill, complainant appeals. January 23, 1893, complainant executed a mortgage to defendant Wyckoif for $1,750, upon two descriptions of land, each of which was occupied as a farm. One piece contained 120 acres.

Assumpsit by the First National Bank of Niles against John Shue and Hattie E. Shue upon a promissory note. From a judgment for plaintiff for less than the amount claimed, it brings error. This is a suit upon a promissory note dated August 22, 1894, for $85, payable to J. C. Newman or order, at the Second National Bank, Bay City, made by the defendants, who are husband and wife. The note is indorsed in blank on one end by J. C. Newman.

<p>Appeal from Tuscola; Beach, J.</p> <p>Bill by Jennie Holmes against John McDonald and others to foreclose a mortgage. From a decree for complainant, defendants appeal.</p>

Bill by the Lamb Knit-Goods Company against Isaac W. Lamb to compel the surrender of certain shares of stock alleged to have been fraudulently obtained. From a decree dismissing the bill, complainant appeals.

Bill by Clarence A. Black and others, taxpayers of the city of Detroit, against the common council of said city and others, to enjoin an expenditure of public moneys. From a decree for complainants, defendants 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 the decree rendered, complainant appeals.

Ejectment by William Hamilton against J. Brush Fen-ton and Mary A. V. Fenton. From a judgment for plaintiff, defendants bring error. This is an action of ejectment to recover a triangular piece of land on lot 12, block 55, in the city of Flint. Artemus Thayer was, on the 14th of May, 1874, the owner of lots 10, 12, and 14 of said block. On-that date he gave a mortgage to the plaintiff on lots 12 and 14, and the south 12 feet of lot 10.

Case by Mary Buckley against the Flint & Pere Marquette Railroad Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

•Error to Charlevoix; Corbett, J. Garnishment proceedings by James K. Burnham, Frederick C. Stoepel, and others, copartners as Burnham, Stoepel & Co., against the Home Insurance Company, as garnishee of Neil Gallagher. William J. Quan was interpleaded as a claimant under an alleged prior assignment. From a judgment for plaintiffs, claimant and the garnishee bring error.

<p>Error to Wayne; Erazer, J.</p> <p>Replevin by Oliver H. Durrell and others, copartners as Brown, Durrell & Oo., against Henry W. Richardson, Thomas E. Hall, William B. Hall, and Emma H. Hall. From a judgment for plaintiffs, defendants Hall bring error.</p>

Mandamus by Edgar J. Swart to compel Joseph H. Steere, circuit judge of Chippewa county, to strike from the files a replication in quo warranto proceedings.

Mandamus by Orange Webster to compel Edgar W. Wheeler, county treasurer, to repay certain money wrongfully received. From an order granting the writ, respondent brings certiorari.

<p>Mandamus by Clement, Bane & Company to compel Fred J. Russell, circuit judge of Oceana county, to vacate an order dismissing a proceeding instituted under chapter 278, 2 How. Stat.</p>

.Appeal from Monroe; Kinne, J. Bill by Harvey H. Brown and others against William Milliman, Jr., and Samuel Gay, to quiet title to land. From a decree for complainants, defendants appeal.

<p>1. Carriers — Injury to Passenger — Jolting Car — Negligence.</p> <p>Evidence that plaintiff was invited by a carrier to enter a passenger car standing, with other cars in front of it, upon the track, detached from the engine and other cars, which were engaged in switching, and that, before he had time to seat himself, the car was struck in front with very great force, causing him to be thrown and injured, is sufficient to warrant the jury in inferring that cars were negligently backed against the one plaintiff had entered.</p> <p>2. Same — Contributory Negligence — Entering Detached Car.</p> <p>A passenger is not guilty of contributory negligence per se in not looking to see whether other cars are being backed towards a detached car which the carrier has invited him to enter.</p> <p>3. Same — Selecting Seat.</p> <p>On entering, on invitation of the carrier, a car from which the engine is detached, the passenger has a right to select any seat he chooses, and may presume that he will have time to do so before the engine is backed against the car in such a manner as to endanger him unless he is sitting, down.</p>

Case by Addison J. Austin against Duncan Hyndman for libel. From a judgment for plaintiff, defendant brings error. This is an action of libel, in which the plaintiff recovered a verdict and judgment of $175 for damages to the feelings of the plaintiff. Plaintiff was a supervisor, and a candidate for re-election at the time of the publication of the alleged libel.

Assumpsit by Ora J. Graves against George W. Kennedy for the breach of a contract of sale. From a judgment for plaintiff, defendant brings error.

, presiding. Bill by Joseph and Mary Noeker against H. Kirke Howry and others to foreclose a mortgage. Thomas A. E. Weadock, receiver of the First National Bank of East Saginaw, petitioned for a review of the decree of foreclosure, and from a denial of the petition he appeals.

<p>Error to St. Clair; Vance, J.</p> <p>Replevin by Nellie Frank against Delemere Brown. From a judgment for defendant, plaintiff brings error.</p>

Mandamus by Charles A. Scholtz, drain commissioner of Gratiot county, to compel Gordis Smith, supervisor of Pine River township, to spread a drain tax upon the assessment roll of said township. From an order granting the writ, respondent brings certiorari.

Bill by the people of the State of Michigan, on the relation of Fred A. Maynard, attorney general, against the village of Holly, to restrain the payment of a reward offered, for the apprehension of an incendiary. From the decree rendered, complainant appeals.

Case by Sarah F. Peppett, administratrix of the estate of George Peppett, deceased, against the Michigan Central Railroad Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff’s counsel state her case as follows: “George Peppett, the plaintiff’s intestate, was, on the 13th day of September, 1895, a locomotive engineer in the defendant’s employ.

Bill by the city of Grand Haven against the Grand Haven Waterworks for the rescission of a contract. On a former appeal (99 Mich. 106) the Supreme Court granted complainant the relief prayed, but remanded the case for an accounting as to the amount complainant was equitably bound to pay for services rendered by defendant. From a decree fixing the allowance at $1,500, defendant appeals.

Petition by the board of fire and water commissioners of the city of Marquette against Edwin C. Wilkinson and Albert E. Miller, assignees for creditors of James M. Wilkinson, to reach funds alleged to be held in trust. Prom a decree denying the petition, petitioner appeals.

Bill by Samuel Reason, by John M. Culp, his guardian, and Laura A. Reason, against Lafayette Jones and Maria H. Jones, to set aside a deed. From a decree for complainants, defendants appeal. Complainants, Samuel and Laura Reason, are husband and wife, and owned a farm. Defendant Lafayette Jones owned certain lots in the village of St. Johns. About May 22, 1897, they exchanged properties.

<p>Error to Wayne; Frazer, J.</p> <p>Case by Stanislaus Pomaski against James Grant for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Case by Margaret H. Doak against the township of Saginaw for personal injuries. From a judgment for plaintiff, defendant brings error. On July 30, 1897, plaintiff, with a young child, and her eldest son as driver, drove out of the city of Saginaw into the country. On approaching Merrill bridge across the Tittabawassee river, a team was coming across on the bridge. Plaintiff’s son drove to one side, and stopped about 14 feet from the bridge for this team to pass.

Petition by Roscoe D. Dix, auditor general, for the sale of lands delinquent for the taxes of 1895. From a decree setting aside certain taxes upon objections filed by the Flint & Pere Marquette Railroad Company, petitioner appeals.

Assumpsit by Charles La Dow against E. Bement & Sons for the breach of a contract to repurchase certain shares of stock in defendant corporation. Prom a judgment for defendant on demurrer to the declaration, plaintiff brings error.

Assumpsit by tbe village of Allegan against Joseph W. Chaddock and Hiram A. De Laño, as sureties on the official bond of Edward J. Wagner, village clerk. Erom a judgment for plaintiff, defendants bring error.

Edwin ft. Doane presented a claim against the estate of Caroline Feather, deceased, upon a promissory note. The claim was disallowed in the probate court, and claimant appealed to the circuit. From a judgment for claimant, contestant brings error.

Henry Bristol presented a claim against the estate of Smith H. Bristol, deceased, for services rendered in decedent’s lifetime. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. Prom a judgment for claimant, Edward Sutton, administrator of the estate, brings error. Upon the first trial of this cause, claimant recovered. The case was appealed to this court, and reversed. 115 Mich. 365.

<p>Error to Oakland; Smith, J.</p> <p>Assumpsit by Hiram Vosburg against Caroline Brown upon a promissory note. From a judgment for plaintiff, defendant brings error.</p>