Volume 120 — Michigan Reports

Bill by Seymour Foster, receiver of the People’s Savings Bank of Lansing, against Samuel H. Row, Elgin Mifflin, James P. Edmonds, Mason D. Chatterton, Jacob Stahl, William A. Fraser, and others, to enforce the statutory liability of the stockholders in said bank to the depositors. From a decree for complainant, the above-named defendants appeal.

Case by Mary A. Leslie against the city of Grand Rapids for personal injuries. From a judgment for defendant, plaintiff brings error.

■Bill by Elizabeth Whiteley, revived in the names of James Whiteley, executor, and others, devisees of deceased, against Elizabeth Whiteley and Nellie M. Whiteley, to set aside a deed. From a decree for complainants, defendants appeal.

Assumpsit by Edgar Walter against the Mutual City & Village Fire Insurance Company for the counties of Berrien, Cass, and Van Burén on a policy of insurance. From a judgment for plaintiff, defendant brings error.

<p>Municipal Corporations — Ordinances — Repeal — Sale oe Unsound Meat.</p> <p>An ordinance prohibiting the sale of unsound meat, and providing a penalty for its violation, becomes inoperative on the taking effect of a charter provision authorizing the council to prevent the selling of such meat, and to punish those who “knowingly” sell it; so far, at least, as the ordinance is broader than the charter.</p>

<p>Error to Ottawa; Padgham, J.</p> <p>Cornelius Blom, Sr., was convicted of violating a city ordinance relating to the sale of intoxicating liquors.</p>

Assumpsit by Rudolph Darmstaetter and others against Charles Hoffman for rent. From a judgment for plaintiffs, defendant brings error. Hubbard & King leased to plaintiffs certain premises, to be used and occupied as a billiard hall and saloon. On December 5, 1896, this lease was assigned by plaintiffs to one Charles Kudner, and by Kudner, on December 30, 1896, assigned to defendant.

Bill by the Chicago Lumbering Company against Daniel W. Powell and others to quiet title to certain timber. Prom a decree for complainant, defendants appeal.

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

Bill by Clinton L. Conkling,' executor of the last will and testament of Mercie A. Conkling, deceased, against the village of Mackinaw City, to quiet title to land. From a decree dismissing the bill, complainant appeals.

<p>Exceptions before judgment from Bay; Maxwell, J.</p> <p>Michael Reigel was convicted of embezzlement.</p>

Mandamus by Harry C. Stoddard, commissioner of highways for the township of Ecorse, to compel George F. Giasson, clerk of said township, to countersign certain orders on the township treasurer. From an order granting the writ, respondent brings certiorari.

Mandamus by Hazen S. Pingree, governor, to compel Eoscoe D. Dix, auditor general, to transfer to the general fund, from the primary-school fund, certain moneys collected for taxes under Act No. 168, Pub. Acts 1881. Mandamus by the Tecumseh Telephone Company to compel the auditor general to cancel certain taxes assessed against it under the above-mentioned act.

Case by Oliver H. Lau against the Lake Shore & Michigan Southern Railway Company for personal injuries. From a judgment for defendant, on verdict directed by the court, plaintiff brings error. Plaintiff, a physician 42 years of age, residing in Detroit, at about 8 o’clock in the evening of September 21, 1896, was traveling on his .bicycle to visit a patient.

Case by Daniel Mott against the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error. About 7:15 on the evening of October 1, 1897, plaintiff, with his horse and buggy, was driving-across the defendant’s track, in the city of Owosso, on Smith avenue. A section crew, consisting of- five men, was coming from the east on a hand-car. It was dark and somewhat smoky and foggy.

<p>Error to Wayne; Hosmer, J.</p> <p>Case by Cora E. Cross against the Detroit Citizens’ Street Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by Richard Phillips against the United States Benevolent Society of Saginaw on a policy of accident insurance. From a judgment for plaintiff, defendant brings error. Defendant is a mutual benefit association, organized under the laws of this State, insuring its members against disability from' sickness or accident, and from death occasioned by accident. October 23, 1896, plaintiff presented an application for membership.

Ejectment by Rollin C. Olin and Oscar Le Seure against Thomas Henderson. From a judgment for plaintiffs,' defendant brings error. This is an action of ejectment for the recovery of “a parcel of land, 19 rods wide, at the rear of the front concession of private claim No. 259, and being the southerly part of said front concession,” containing 2^ acres, which plaintiffs claim'in fee. The situation will appear from the following plat: The land in dispute is marked with a cross.

Bill by the Lamb Knit-Goods Company to restrain the Lamb Glove & Mitten Company and Isaac W. Lamb from using the word “Lamb” in connection with their business in such manner as to mislead complainant’s customers. From a decree dismissing the bill, complain- • ant appeals.

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.

Exceptions before judgment from superior court of Grand Rapids; Burlingame, J. James E. McBride was convicted of embezzlement* This is exceptions before sentence to review proceedings-in which respondent was convicted of embezzlement.

Mandamus by Morley Brothers, a corporation, to compel the National Loan & Investment Company to transfer to relator certain shares of stock in respondent corporation. From an order denying the writ, relator brings certiorari.

, presiding. Bill by tbe Penberthy Injector Company against William O. Lee, Thomas J. Sweeney, Homer Pennock, and William Penberthy, copartners as the Lee-Penberthy Manufacturing Company, to enjoin the use by defendants, in their firm name and in their advertising, of the word “Penberthy,” in such manner as to mislead complainant’s customers. Prom a decree for complainant, defendants appeal.

Mandamus by James H. Pound to compel the board of canvassers of Wayne county to recount the votes cast for the office of circuit judge. From an order denying the writ, relator brings certiorari.

<p>Error to Kalamazoo; Buck, J.</p> <p>. Ejectment by Howard M. Patrick and others against the Young Men’s Christian Association of Kalamazoo. From a judgment for defendant, plaintiffs bring error.</p>

<p>Error to "Wayne; Donovan, J.</p> <p>Trover by John S. Scbmittdiel, trustee, against Joseph B. Moore, trustee, John Hurley, and John H. Walsh. Fropi a judgment for plaintiff, defendants bring error.</p>

Assumpsit by George L. K. Morrow against Thomas Murphy to recover a balance due on a contract for services. From a judgment for plaintiff, defendant brings error.

<p>Error to Houghton; Hubbell, J.</p> <p>Replevin by Albert Beakley and George Hall against Prosper Robert. From a judgment for plaintiff's, defendant brings error.</p>

Assumpsit by Lucy Jones against the Preferred Bankers’ Life Assurance Company on certain insurance certificates. From' a judgment for plaintiff, defendant brings error. The defendant is organized under Act No. 187, Pub. Acts 1887 (3 How. Stat. § 3960c et seq.), and acts amendatory thereof. One Owen Jones became a member of said company, January 20, 1894, receiving three certificates of insurance, for $1,000 each; his wife, the plaintiff, being the beneficiary.

Bill by Mary H. Wood against Maxim Genett and wife to foreclose a mortgage. From a decree dismissing the bill, complainant appeals. The bill in this case was filed to foreclose a mortgage dated October 1, 1877, for $1,000, signed by the defendants, who are husband and wife, and given to the complainant. Five promissory notes executed by defendant Maxim, for $200 each, accompanied the mortgage. The first note had been paid and taken up.

Bill by Frank B. Holmes and others to enjoin the common council and the board of public works of the city of Detroit from confirming a certain paving contract. From a decree for complainants, defendants appeal.

Case by Henry Howard against Samuel Dickie for slander. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

, presiding. Assumpsit by George B. Deffenbaugh against the Jackson Paper Manufacturing Company on a contract of employment. From a judgment for plaintiff, defendant brings error.

Case made from Grand Traverse; Corbett, J. Assumpsit by the superintendents of the poor of Kalkaska county against the superintendents of the poor of Grand Traverse county to recover an amount paid for the support of an indigent family. There was a judgment for defendant and plaintiff assigns error.

Mandamus by the Anti-Kalsomine Company to compel Allen C. Adsit, circuit judge of Kent county, to vacate an order requiring relator to produce certain records and correspondence for inspection.

Mandamus by Charles O. Smedley to compel Thomas E. Kirby, clerk of the city of Grand Haven, to draw a warrant on the city treasurer for an amount due relator for legal services. From an order denying the writ, relator brings certiorari.

Mandamus by Will De Lano, health officer of the city of Grand Rapids, to compel Emanuel J. Doyle, judge of the police court of said city, to issue a warrant.

Case by Rosalie Arndt against Michael J. Bourke and others for personal injuries. From a judgment for plaintiff, defendants bring error.

Ejectment by McIntosh McKay against Edward Gardner and wife. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

<p>1. Highways — Donation of Right of Way — Conditions.</p> <p>Permission to road commissioners to open a highway across timber land provided they make payment for the timber cut by them, the amount of such timber to be estimated by the owner after the line of the road is staked out by the commissioners, gives them no authority to cut trees on the proposed right of way before the owner has had an opportunity to make his estimate.</p> <p>2. Accession — Confusion of Goods.</p> <p>The owner of logs which another manufactures into lumber, and in good faith mingles with his property of like kind and equal value, does not acquire title to the whole, but can only claim a proportionate share of the lumber.</p>

Bill by Ora S. McLain and others, infants, by Julian A. Palmer, their next friend, against John Howald, administrator de bonis non, with the will annexed, of the estate of 'Samuel Helsel, deceased, and Jacob Helsel, Elias Helsel, and Edwin Spitler, residuary legatees, for a construction of said will. From a decree dismissing the bill, complainants appeal.

<p>Mandamus by Julia Hosey and others to compel Frank D. M. Davis, circuit judge of Ionia county, to dismiss an appeal from probate court.</p>

Lorenzo Jones and Andrew Goines were convicted of willful and malicious injury to personal property, and sentenced to nine months’ imprisonment in the state house of correction at Ionia.

Assumpsit by Nathan H. Stevens^ against Duncan A. McLachlan, James Gourlay, and others, upon negotiable paper. From a judgment for plaintiff on verdict directed by the court, defendants McLachlan and Gourlay bring error. The declaration in this case is upon the common counts in assumpsit, with notice that the suit is based upon certain promissory notes and drafts, copies of which are attached to the declaration.

Assumpsit by Gustavus Stockman against Carl H. Michell for services rendered. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Case by Mary Irion against tbe city of Saginaw for personal injuries. Prom a judgment for plaintiff, defendant brings error.

Case by Edwin T. Bennett against John F. Eddy, Edgar A. Cooley, and Edwin T. Carrington for malicious prosecution and false imprisonment. From a - judgment for plaintiff, defendants bring error.

Bill by Ezra Heath, administrator of the estate of Joshua A. Heath, deceased, against Selah Heath, to set aside a deed. From a decree for complainant, defendant appeals. Joshua A. Heath died December 1, 1895. Until August 14th of the same year he resided upon his farm in Fair-grove, Tuscola county. He was the owner of 120 acres of land. Complainant was appointed administrator. Claims were allowed against, the estate amounting to $594.95.

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

, presiding. Case by Philip G. Baumgartner against the Sturgeon River Boom Company for causing the flooding of plaintiff’s land. From a judgment for plaintiff, defendant brings error.

' Case by Minnie Bratfisch against the township of Mason for personal injuries. From a judgment for plaintiff, defendant brings error.

Bill by John A. May, receiver of the Ingham County Savings Bank, against the Genesee County Savings Bank, to enforce defendant’s statutory liability as a stockholder in complainant bank. From a decree for complainant, defendant appeals. On July 20, 1895, Mr. Arthur O. Bement borrowed $4,000 of the defendant bank, giving his promissory note, payable on demand.

Cross-appeals from Kent; Grove, J. Bill by Charles W. Calkins, receiver of the Supreme Assembly of the National Dotare, against Charles M. Bump, trustee, to recover possession of certain assets of the society. From the decree rendered, both parties appeal.

<p>1. Trial — Instructions—Modification of Requests.</p> <p>A judgment for plaintiff will not be reversed because the court added to one of defendant’s requests to charge some words of explanation which were not in themselves clear, if from the whole charge it is apparent that the jury must have correctly understood the issues.</p> <p>2. Same — Witnesses.</p> <p>There is no error in instructing the jury that they should find for plaintiff'or defendant, according to their belief in the witnesses, “taking them in sides,” if the issues are squarely raised, and the contention of each party finds support only in the testimony of his own witnesses. Henderson v. Eaihoay Co., 116 Mich. 368, distinguished.</p>

<p>Appeal — Equity—Reformation of Instruments — Fraud.</p> <p>A decree reforming a mortgage so as to cover land claimed by-complainant to have been omitted through defendant’s fraud, being sustained by the evidence, was affirmed.</p>

<p>Error to Shiawassee; Smith, J.</p> <p>Trover by Oscar O. Ismond against Monroe L. Scougale, sheriff of Shiawassee county. From a judgment for plaintiff, defendant brings error.</p>

<p>Mandamus — Boards of Supervisors — Rebuilding Bridge.</p> <p>Mandamus will not issue, on relation of the attorney general, to compel adjoining counties to rebuild, upon its former site, a bridge over a navigable stream between them, where the legislature, by special act, has authorized arebuilding'upon a different site, concerning which the boards of supervisors of the respective counties are unable to agree.</p>

Assumpsit by the people of the State of Michigan, for the use and benefit of Joseph J. Higley and others, against Thomas J. Laidlaw and others, upon a statutory bond. From a judgment for plaintiffs, defendants bring error.

<p>Equity — Subrogation—Revival oe Lien — Homestead.</p> <p>A wife who had fraudulently obtained from her husband, who was incompetent, a conveyance of certain lands, deeded them to a third person, with an understanding that they should be reconveyed at the husband’s death. Subsequently, upon a bill filed by the husband’s heirs, both conveyances were set aside. The premises, when restored, were incumbered by a mortgage, the proceeds of which had gone to discharge a mortgage for a like amount upon the grantee’s homestead. Held, that the lien upon the homestead should be revived, and the heirs subrogated to the rights of the original mortgagee.</p>

, presiding. Bill by Edwin E. Smalley, as successor and assignee of himself and De Witt C: Spaulding, copartners, against William C. Bodinus and others, to enforce a mechanic’s lien. From a decree for complainant, defendants appeal.

In the matter of the estate of Patrick Gallagher, deceased, Maria J. Quinn, guardian, appealed to the circuit court from an order of the probate court charging a certain balance against Jeremiah Connor, the executor. On the trial in the circuit court, the jury found a much larger balance due, and Daniel Sullivan, the executor’s surety, made a motion for a new trial. After a denial of the motion, Sullivan died, and Thomas F. Sullivan and another, his executors, bring error.

<p>1. Trespass — Possession—Admissions of Landlord — Effect on Tenant.</p> <p>The possession by a tenant of the portion of the demised premises near a disputed boundary line is not affected by a statement of his landlord to the owner of the adjoining parcel that he “would never use” such portion; and such statement will not support an action of trespass by the adjoining owner against the tenant, who continues in possession of the portion.</p> <p>3. Same — Directing Verdict.</p> <p>Where, in an action of trespass qw. ol., the testimony conclusively shows that plaintiff had no actual possession, and that defendant did have such possession, and still has it, the latter is entitled to have verdict directed in his favor.</p>

Chauncey J. Rumsey presented a claim against the estate of Robert O. Settle, deceased, for the amount of six promissory notes. The claim was allowed by the commissioners as to one of the notes only, and claimant appealed to the circuit court. From a judgment for claimant for the entire amount, on verdict directed by the court, defendant brings error.

<p>False Imprisonment — Joint Tort Feasors — Divided Action— Satisfied Judgment as Bar.</p> <p>A satisfied judgment for plaintiff in an action of false imprisonment against the complaining witness, the magistrate, and the constable, in which the declaration alleged the continuance of the imprisonment until a delivery by the constable to the sheriff, is a bar to a subsequent suit against the sheriff, upon substantially the same state of facts, for the continuance of the false imprisonment until the evening of the next day.</p>

Assumpsit by the H. M. Loud • & Sons Lumber Company against the township of Vienna to recover taxes alleged to have been paid under protest. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Trover by Alexander Davidson against David W. Fox, the Detroit Journal Company, Fred H. Lutz, and William W. Watson. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Mandamus by Jennie Hawkins to compel the common council of the village of Litchfield to approve a liquor bond. From an order granting the writ, respondent brings certiorari.

<p>1. Contracts — Abandonment — Substituted Asreement — Consideration.</p> <p>Plaintiffs’ assignor, after entering upon the performance of a contract with defendants for the sale of lumber to be cut from a large tract of land, decided, because of its unprofitableness, to abandon it, and respond in damages, rather than attempt to fulfill it. Defendants desired the completion of the contract, and to that end entered into a new agreement, whereby they were to pay an increased price for the lumber if the contract was faithfully performed. Under this agreement, the contract was carried out by the seller, defendants from time to time giving their acceptances for the lumber at the increased rate. Held, that the new contract was based upon a sufficient consideration, and that defendants were bound by it.</p> <p>2. Same — Insurance—Value.</p> <p>A contract for the sale of lumber provided that the seller should make monthly statements to the purchaser, showing the quantity and grades of lumber in the yards, and should procure ■such lumber to be insured, at the joint expense, to a specified percentage of its value. Held, that the contract price was to be treated as the value for the purpose of insurance.</p> <p>3. Same — Time—Waiver.</p> <p>Where one who sold under contract certain lumber to be cut and delivered to the purchaser, finding himself unable, because of litigation, to begin work until some months after the time agreed upon, explained the situation to the apparent satisfaction of the purchaser, and the latter thereafter accepted the lumber manufactured under the contract, making no claim, in any of the numerous statements of account submitted by him, for damages for delay, he (the purchaser) will be deemed to have waived the terms of the contract as to time of performance.</p>

Case by Lizzie McCarthy against the Detroit Citizens’ Street Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error. Plaintiff (then 26 years old), on March 20, 1896, about 6 o’clock p. m., was going home from her place of business, in the city of Detroit. She went west on Michigan avenue as far as the east side of Wayne street, at which point she contemplated crossing to the north side of Michigan avenue.

Bill by Margaret Farwell against Harmon Halladay, Ella E. Halladay, and Fred L. Heller, to foreclose a mortgage. From a decree for complainant-, defendant Heller appeals. On May 23, 1882, the defendants Halladay, husband and wife, executed a mortgage to one Simon King, guardian, for $200, on the N. W. of the S. W. J of section 31, town 33 N., range 6 W., which was their homestead.

Assumpsit by William Gerardo against Alfred E. Brush for the breach of a contract of employment. From a judgment for plaintiff, defendant brings error. Plaintiff claims that he was employed as engineer on board the defendant’s yacht for the season of 1897, commencing April 1st. His contract was with Capt. Klintworth, the captain of the yacht, and was made about the 27th of March. The contract rested in parol.

. Assumpsit by Janies Friar and Martin Friar against Henry C. Smith to recover a commission on an exchange of real estate. From a judgment for plaintiffs, defendant brings error.

Summary proceedings by the Michigan Central Railroad Company against George A. Bullard to recover the possession of real estate. From a judgment for complainant on verdict directed by the court, defendant brings error.

Bill by Thomas Thorkildsen against George W. Carpenter. and Stephen H. Clink for a refunding of moneys paid in part consideration for a deed, and for the cancellation of a note and mortgage given for the balance. From a decree dismissing the bill on demurrer, complainant appeals. Defendant Carpenter was the owner of a tax title upon certain lands, the original title to which was in a corporation known as the Lake Harbor Company of Muskegon.

Assumpsit by Morton B. Wheeler and Siegel D. Kopf against Luman Jenison and Lucius Jenison for goods sold and delivered. From a judgment for plaintiffs, defendants bring error.

Bill by James E. D. Lee, Almira Lee, and Sylvia True against Byron Fiero, executor of the last will and testament of David Lilly, deceased, and Charles Lee, to set aside a mortgage. From a decree for defendant Fiero, complainants appeal. Complainant Almira is the widow, and her co-complainants and defendant Charles the children, of William Lee, deceased, who died intestate December 3, 1893, aged 71 years.

<p>• Error to Marquette; Stone, J.</p> <p>Assumpsit by Sidney Adams against Gustavus A. Werner for rent. From a judgment for defendant, plaintiff brings error.</p>

Case by Joseph E. Gage against the township of Pitts-field for personal injuries. Prom a judgment for plaintiff, defendant brings error.

<p>Appeal — Decree on Conflicting Evidence — Fraudulent Conveyance.</p> <p>The Supreme Court will not reverse a decree setting aside a conveyance as in .fraud of creditors, where the evidence is conflicting, unless it is clearly against the weight of the evidence.</p>

Proceedings under the log-lien law by James Watson against Charles M. Dingman and Charles L. Dolph. From a judgment for plaintiff, defendant Dolph brings error.

Case by Ealph Phelps, Sr., against the city of Detroit, for the unauthorized maintenance of a bridge in front of plaintiff’s premises. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Petition by Mary Shefferly against Roscoe D. Dix, auditor general, Alexander McMillan, and Charles Canned, to reopen a decree in a tax proceeding. From a decree for petitioner, defendants McMillan and Canned appeal.

<p>Mandamus by Eber L. Kelsey to compel Edward D. Kinne, circuit judge, presiding in Wayne county, to vacate an order dissolving an injunction.</p>

<p>1. Corporations — Chattel Mortgages — Authority to Execute —Special Meeting of Direotors.</p> <p>A chattel mortgage covering all the property of a corporation, executed under authority given at a special meeting at which only two of the four directors were present, the remaining two not having been notified of the meeting, is invalid.</p> <p>2. Same — Assent of Stockholders.</p> <p>A chattel mortgage executed by directors of a corporation without proper authority will not be treated as the act of the stockholders, where it does not appear that the stockholders held any meeting for the purpose of giving the mortgage, or that all of them assented to it.</p> <p>3. Appeal — Review—Questions not Raised Below.</p> <p>A point raised for the first time on appeal will not be considered.</p>

<p>Equity — Agreement for Support — Specific Performance — Security.</p> <p>The execution of a mortgage in complainant’s favor, to secure his support for the remainder of his life, was properly decreed to cover property received- by defendant, directly or indirectly, by reason of complainant’s discharge of a mortgage, where, although it' was contemplated and agreed at the time of the discharge that complainant’s suppiort should be secured upon property to be received in exchange for that upon which the discharged mortgage was an incumbrance,' defendant, ' after receiving the former mortgage and its discharge, declined to give any security.</p>

Bill by the St. Joseph Valley Railway Company to restrain Michael J. Galligan from covering a creek with a building. From a decree dismissing the bill, complainant appeals.

<p>Replevin — Judsment.</p> <p>In replevin against a sheriff for goods levied upon as the property of a third person, where the issue as to plaintiff’s ownership is found against him, judgment is properly entered for a return of the property, without limitation to the amount of defendant’s lien.</p>

Gustav Meeske presented a claim against the estate of Casper Pfenning, deceased, for'contribution to the payment of a claim against them as co-sureties on a bond. The claim was allowed in the probate court, and Helen Pfenning, administratrix, appealed to the circuit court. From a judgment for claimant, defendant brings error.

Case by John Carlson against the Cincinnati, Saginaw & Mackinaw Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error. Plaintiff had been in the employ of the defendant as a section hand in its yards at West Bay City for about five years. One of his duties was to clean the tracks at the highway crossings, one of which was at Main street. Defendant has four tracks across this street, and the Michigan Central Railroad three.

Exceptions before judgment from Berrien; Coolidge, J. Timothy Talbot was convicted of keeping his saloon open on Sunday. Respondent was convicted of keeping a saloon open on Sunday. He lived over his saloon. There was a room back of the bar-room. From this room a pair of stairs led up to his living rooms. Swinging doors opened from this room into the saloon.

, presiding. The probate court of Ingham county disallowed certain items in the final account of Frederick Schneider, as guardian of Rudolph and Louise J. Grammel, minor heirs of George Grammel, deceased, and the guardian appealed to the circuit court, where the order settling the account was set aside. Rudolph and Louise J. Grammel bring error.

J. Proceedings under the log-lien law by Samuel Eisher against the Hardwood Manufacturing Company, Limited, and Nathan B. Bradley. Erom a judgment for defendant Bradley on verdict directed by the court, plaintiff brings error. This suit was commenced in justice’s court by attachment to enforce a lien for labor. The work was done for the defendant the Hardwood Manufacturing Company, and defendant Bradley claimed to be the owner of the property attached.

Bill by Sedgwick Dean against Charles B. Andrews and another to restrain interference with the removal of crops. From a decree for complainant, defendants appeal.

Case by the commissioner of highways of the township of Tittabawassee against Fedinand Sperling for injuring a highway by willfully obstructing a water-course. From a judgment for plaintiff, defendant brings error.

Ejectment by Melissa Retan against Ann E. Sherwood, Emma H. Sherwood, and James Steel. Erom a judgment for defendants on verdict directed by the court, plaintiff brings error.

Garnishment proceedings by James K. Burnham, Frederick C. Stoepel, and others, copartners as Burnham, Stoepel & Co., against the North British & Mercantile 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.

Assumpsit by Jobn Fish against the Crawford Manufacturing Company for work and labor. From a judgment for plaintiff, defendant brings error.

), J., presiding. Bill by Ward L. Andrus against John Scudder and Frances M. Scudder for the reformation of a contract, an accounting, and to enjoin an action at law. From a decree dismissing the bill, complainant appeals.

Mandamus by Frank W. Hubbard and James O. Wallace to compel Boscoe D. Dix, auditor general, to issue a certificate of error.

Trover by William G. Watson and others against Silas L. Alberts and another. From a judgment for defendants on verdict directed by the court, plaintiffs bring error. Plaintiff, sold to one Minnick a steam pump, to be used by him in a peppermint distillery on his farm. It was sold on credit, the title to remain in plaintiffs until the price ($50) was paid.

<p>Error to Muskegon; Russell, J.</p> <p>Assumpsit by Anna C. Thornton against Peter Damm upon a promissory note. Erom a j udgment for plaintiff, defendant brings error.</p>

<p>Attorneys — Improper Language in Briefs — Contempt.</p> <p>The Supreme Court, though deeming improper certain language used in the briefs of opposing counsel, were not disposed to take further action thereon, where counsel disclaimed, in answer to an order to show cause, any intent to use language which could be construed into a contempt of court.</p>

<p>Error to Manistee; McMahon, J.</p> <p>Assumpsit by the Big Rapids National Bank against Richard G. Peters upon promissory notes. From a judgment for plaintiff, defendant brings error.</p>

, presiding. Bill by Elmer E. Buxton and Rhoda Buxton against Charles B. Jones and Charlotte Jones to set aside certain conveyances. From a decree dismissing the bill, complainants appeal.

Bill by James A. Ervay against Eliza M. Ervay for a divorce. Complainant appeals from an order committing him for contempt in disobeying an order for payment of suit money.

Petition by Clark W. Youngs against Frederick O. Clark and others for a writ of assistance. From an order denying the writ, petitioner appeals.

Benjamin C. Nunn was convicted of murder in the first degree, and sentenced to imprisonment for life in the state prison at Jackson.

Haire, J. Petition by Samuel Thomas and John W. Sterling against Poscoe D. Dix, auditor general, John P. Moore, and Charles E. Miller, prosecuting attorney, to set aside a tax sale. From a decree for petitioners, defendant Moore appeals.

Assumpsit by Charles M. Chittenden against the city of Lansing for extra material furnished under a building contract. Prom a judgment 'for defendant, plaintiff brings error.

Case by Henry P. Glover against George W. Radford, James W. Fales, and Alexander MeVittie for alleged false representations on the sale of corporate stock. From a judgment for defendants, plaintiff brings error.

Bill of interpleader by William M. Adams and George W. Hart against Albert D. Noble, Marj^ A. Kendall, and Abbie A. Weller, to determine the title to a fund arising from a party-wall agreement. From a decree for defendant Kendall, defendant Noble appeals.

Quo ivarrcmto by Horace M. Oren, attorney general, on the relation of George H. Barbour and others, against Hazen S. Pingree,' Elliott G. Stevenson, and Carl E. Schmidt, to determine the validity of the áct creating the Detroit Street-Railway Commission.

Bill by Thomas Smith and others against the city of . Detroit to restrain the collection of an assessment in a street-opening proceeding. From a decree dismissing the bill, complainants appeal.

Clair; Vance, J. Bill by Olive L. Graham against Hosea and Eugenia Lamb, and Ellis B., Daniel,, and Susan B. Clark, executors of the last will and testament of Ira M. Clark, deceased, to -set aside a deed. From the decree rendered, complainant appeals.

Case by Laverne Middaugh, administratrix of the estate of William Middaugh, deceased, against Austin W. Mitchell and William W. Mitchell, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendants bring error.

<p>Error to Oceana; Russell, J.</p> <p>Ejectment by Minnie B. Eldridge against Edgar D. Richmond and Lydia L. Richmond. From a judgment for defendants, plaintiff brings error.</p>

Mandamus by Alfred Johnston, moderator, and Warren D. Clizbe, director, of school district No. one, fractional, of Bloomfield, Troy, Royal Oak, and Southfield, to compel George H. Mitchell, assessor of said district, to meet with relators for the purpose of filling vacancies on the district board. From an order granting the writ, respondent brings certiorari.

Quo warranto by Horace M. Oren, attorney general, on the relation of Archie McCall, against Julius B. Kirby, to determine the title to the office of prosecuting attorney for the county of Gratiot. Held: M is the entrance to the room. I and J were gates for the entrance and exit of voters; Í being the entrance and J the exit. E, E, G, and H are the booths; L the table where thq inspectors sat; K the place where the challengers sat.

Case by Fanny E. Doxtator against the Chicago & West Michigan Railway Company for failure to deliver to plaintiff for burial the entire remains of her deceased husband. From a judgment for plaintiff, defendant brings error.

<p>1. Insurance —Action on Policy — Limitations —Summons.</p> <p>A claim under a policy of insurance is prosecuted within one year from the date of loss, as required by the terms of the policy, where a summons was taken out within the year, • and was properly served before the return day, although it was not placed in the hands of the officer until after the year had expired.</p> <p>2. Marine Insurance — Date op Loss — Stranded Vessel.</p> <p>The “ date of loss,” within the meaning of the limitation clause of a policy of marine insurance, is not necessarily the day a stranded vessel, subsequently released, repaired, and abandoned to the underwriters, ran upon the shoal.</p> <p>3. Same — Right of Abandonment — Items of Loss.</p> <p>The cost of removing the cargo from a grounded vessel in order to get it afloat should be considered as part of the loss in determining the amount lost, as decisive of the owner’s right to abandon the vessel to the underwriters, and is not an expense “incurred on account of the cargo,” withiri a clause of the policy excluding from the computation of the loss the expenses so incurred.</p> <p>4. Same — Decision to Abandon — Reasonable Time.</p> <p>Under a policy of marine insurance providing that the right to abandon shall not exist unless the loss exceeds one-half the valuation expressed’in the policy, the owner of a vessel which has been aground, and has been floated by the underwriters, is entitled to a reasonable time in which to gather information and make up his mind as to whether he has, and whether he wishes to exercise, the right.</p> <p>5. Same — Proportionate Risk.</p> <p>Abandonment to an underwriter of the proportion of a vessel which the amount of risk assumed by his policy bears to the value of the vessel expressed therein is sufficient, under the requirement of the policy that the abandonment convey an unincumbered and perfect title to the subject abandoned</p>

, presiding. Assumpsit by Charles A. Gorman against Hubert Brossard for goods sold and delivered. From a judgment for defendant, plaintiff brings error.

Bill by David W. Simons'against Henry P. McDonnell, John J. McDonnell, Nelson K. Riddle, Patrick H. Monahan, and their respective wives, to foreclose a mortgage. From a decree for complainant, adjudging the named defendants personally liable for the payment of the debt, they appeal.

Case by Clarence A. Frazee against David Stott for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Defendant owns a flouring mill in the city of Detroit, and is the general manager of his business. Upon the floor of the mill are 28 roller machines, called “roller mills,” of which one is used for grinding feed and the others for grinding flour.

Mandamus by Adolph M. Starmont to compel Alva M. Cummins, prosecuting attorney • of Ingham county, to countersign a certificate for witness fees. From an order granting the writ, respondent brings certiorari. A warrant was issued by a justice of the peace for the arrest of an offender. The warrant contained a clause directing the officer into whose hands it came to subpoena certain witnesses, among whom was relator.

<p>Appeal from Saginaw; Wilber, J.</p> <p>Petition by Mary E. Mann against George W. Carson for a writ of assistance. From an order denying the writ,' petitioner appeals.</p>

Bill by Sidney D. Miller and others, executors of the last will and testament of Helen L. Frue, deceased, against George A. Childs, warden, and others, vestrymen, of Grace Church of Menominee, the Church Association of Michigan, and Grace Church of Menominee, to foreclose a mortgage. From a decree awarding foreclosure, but finding defendant Grace Church not liable for any deficiency, complainants appeal.

<p>1. Taxes — Purchase of State Lands — Nonpayment of Liens— Void Deed.</p> <p>Under section 84 of the tax law of 1893, requiring a purchaser of state tax lands to pay all taxes remaining a lien thereon at the time of his purchase, a deed issued without the payment of such a tax is void, even though the tax had not been returned to the office of the auditor general at the time of such purchase. Hughes v. Jordan, 118 Mich. 27, followed.</p> <p>2. Same — Cancellation of Deed — Refunding—New Purchase —Mandamus.</p> <p>The holder of a deed of state tax land, void for failure to pay a tax constituting a lien upon the land at the time of purchase, is entitled, on application at the office of the auditor general, to have such deed canceled and the amount paid refunded, or instead, if no other rights have intervened, on paying an amount which, together with that previously paid, will equal the’ amount due the State and all taxes then a lien upon the land, to have such deed canceled and a new one issued; and, in case the auditor refuses to take such action, mandamus will lie to compel him to do so.</p>

<p>Error to Hillsdale; Lane, J.</p> <p>Trover by David S. Card, administrator of the estate of Fremont W. Fowler, deceased, against Frederick Fowler. From a judgment for plaintiff, defendant brings error.</p>

Case by August Jucbatz against the Michigan Alkali Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Error’’ to Shiawassee; Smith, J. Assumpsit by,-William Weidman against George B. Symes on a promissory note. From a judgment for de- . fendant on verdict directed by the court, plaintiff brings error.

Exceptions before judgment from superior court of Grand Rapids; Burlingame, J. Edward L. Townsend was convicted of assault with intent to do great bodily harm, less than the crime of murder.

Bill by Frank J. Cadotte against Jobanna Cadotte for a divorce. Decree for complainant. From orders extending tbe time for defendant to make certain payments, denying complainant a writ of assistance, and charging him with the cost of an abstract, complainant appeals.

Case by Claude E. Redson against the Michigan Central Railroad Company for the alleged negligent killing of plaintiff’s team of horses. From a judgment for plaintiff, defendant brings error.

Case by Felix Jastrzembski against August Marxhausen for libel. From a judgment for plaintiff, defendant brings error.

Certiorari by George M. Sturm to review the action of John A. Kelly, drain commissioner of Bay county, in laying out and establishing a drain. From a judgment sustaining the proceedings, petitioner brings error. A petition for the location and establishment of a drain three miles in length was presented to -the respondent. He made the proper survey, and located and established the drain, but did not follow the exact survey set forth in the application.

Assumpsit by Simeon C. Denton against the Farmers’ Mutual Fire Insurance Company of Monroe and Wayne counties on a policy of insurance. From a judgment for plaintiff, defendant brings error. This is a suit upon a policy of insurance commenced in justice’s court, and appealed to tbe circuit, where plaintiff recovered a verdict and judgment for $100.

Petition by Catherine Conley and others against Alexander McMillan and Charles Cannell to„ set aside a tax sale. From an order granting the prayer of the petition, defendants appéal.

Mandamus by the Wabash Railroad Company to compel Chase S. Osborn, commissioner of railroads, to vacate an order apportioning between relator and another railroad the expense of an interlocking switch.

, presiding. Bill by Charles W. McFadden against Thomas Brady and others to quiet title. From a decree dismissing the bill, complainant appeals.

Garnishment proceedings by Archie H. Jackson and Joseph F. Jacobs against the People’s Savings Bank, as garnishee of Herman Marx. Adolph Marx and Herman Marx, copartners as Marx Bros., were interpleaded as claimants. Prom .a judgment for plaintiffs on verdict directed by the court, the garnishee and the claimants bring error.

Petition by tbe First Baptist Church of Bay City against Clinton Roberts and George O. Crane to set aside a tax sale. Decree was entered in accordance with the prayer of the petition, after which petitioner filed a second petition, asking that the decree be opened, and the petitioner permitted to amend its original petition. This petition was granted, and an order afterwards entered affirming the former decree. Defendants appeal.