Volume 121 — Michigan Reports

<p>Exceptions before judgment from St. Clair; Vance, J.</p> <p>Owen McArron was convicted of manslaughter.</p>

<p>■ Error to Wayne; Erazer, J.</p> <p>Trespass quare clausum fregit by Frederick Guentherodt against Edward H. Ross and John Ross. From a judgment for plaintiff:, defendants bring error.</p>

Mandamus by Alfred S. Gibson to compel William A. French, commissioner of the state land office, to issue to relator a state tax homestead certificate.

, presiding. Ejectment by Harry J. Haven against Ellen Owen and another. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Summary proceedings' by Gabriel Chiera against John H. McDonald to recover the possession of land. From a judgment for. complainant on verdict directed by the court, defendant brings error.

Petition by Matilda C. Ledyard against Roscoe D. Dix, auditor general, and Harry E. Culverwell, to set aside a tax sale. From a decree for petitioner, defendants appeal.

Case by Martha Lafler against Edward L.. Fisher, a saloon keeper, and his bondsmen, impleaded with William B. Carman, another saloon keeper, and his bondsmen, under the civil-damage act. From a judgment against defendant Fisher and his bondsmen, they bring error.

Petition by Clinton Roberts and George O. Crane for a writ of assistance under a tax deed, and counter petition by John E. Loxley to set aside the decree of sale. From an order vacating the decree, petitioners Roberts and Crane appeal.

Bill by Anna M. C. Wilkin against George Keith, William Keith, and Boscoe D. Dix, auditor general, to set aside a tax deed. From a decree for complainant, defendants Keith appeal.

Assumpsit by Richard Ryerson against Michael Tourcotte on orders for the payment of money. From a judgment for plaintiff, defendant brings error.

, presiding. Petition by George Nester and others against Frank E. Church and Roscoe D. Dix, auditor general, to set aside a tax sale. From an order granting the prayer of the petition, respondent Church appeals.

<p>Garnishment — Supplemental Disclosure — Insurance Companies.</p> <p>A judgment may be rendered against a foreign insurance company, as garnishee, upon a supplemental disclosure by its general agent acknowledging an indebtedness to the principal defendant to an amount equal at least to plaintiff’s claim, made when he was served with a summons to show cause why judgment should not be rendered against the company after its failure to appear on the day to which an adjournment was taken, by consent of its attorney, for the purpose of obtaining a supplemental disclosure, although the original disclosure, understood by the parties to be incomplete, showed no indebtedness.</p>

Appeals from Luce; Steere, J. Bill by Charles A. McGinley and Frank Gregory against the Calumet & Hecla Mining Company, the Hall & Munson Company, and Frank Perry to quiet complainants’ title to lands claimed by them under a tax deed. From a decree dismissing the bill, and granting affirmative relief to defendants Hall & Munson Company and Perry, complainants appeal.

<p>1. Mutual Benefit Societies — Rejection of Claim — Custom— CONOLUSIVENESS.</p> <p>A finding by the tribunals of a benevolent society that a member is not entitled to sick benefits cannot be rendered conclusive, so as to preclude resort to the courts, by reference to a custom of the society, where there is nothing in the constitution or by-laws which so provides.</p> <p>3. Same — Expulsion of Claimant.</p> <p>A mutual benefit society cannot defeat a proper claim for benefits by expelling the member upon the theory that his claim is fraudulent.2</p> <p>3. Same — Cause of Illness.</p> <p>Where there is no provision in the constitution or by-laws of a benevolent association releasing it from its obligation to pay sick benefits if the illness is caused by the indiscretion of a member, it will be liable, though the condition of the member has been brought on by indulgence in unnatural and vicious habits.</p>

<p>Appeal from Osceola; McMahon, J.</p> <p>Bill by Fred S. Wait against Andrew J. McMillan to quiet title. From a decree dismissing the bill, complainant appeals.</p>

Ejectment by Dayton Church against Aaron P. Smith and Sylvester Avery. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Mandamus by the board of auditors of Wayne county to compel Henry M. Reynolds, county clerk, to turn over to the county certain fees. From an order granting the writ, respondent brings certiorari.

), J., presiding. Bill by Minnie Smith against the Detroit Loan & Building Association for specific performance of contract. From a decree for complainant, defendant appeals.

<p>Attachment — Service and Return.</p> <p>Case ruled by Davidson v. Fox, 120 Mich. 385.</p>

<p>Appeal from St. Clair; Vance, J.</p> <p>Bill by Ida Holland against Lavina Holland and others to set aside a deed. From a decree for complainant, defendants appeal.</p>

Case by Hugh Burnside against the Novelty Manufacturing Company for personal injuries. Prom a judgment for plaintiff, defendant brings error. The following is the charge of the court below: “This, gentlemen, is an action of negligence. * * * I instruct you that it was the defendant’s duty to furnish the plaintiff with a suitable press with which to perform the work required of him, — a press reasonably well adapted to do the work which he was set to perform upon it.

Exceptions before judgment from Wayne; Hosmer, J. Prank Booth was convicted, under the disorderly act, of refusing and neglecting to support his family.

<p>1. Evidence — Contracts—Cross-Examination.</p> <p>Where defendant, claiming to have made a certain contract with plaintiff, is asked on cross-examination if he ever made another such a one-sided contract, and replies that he has made such a contract, the paper he calls a contract may, on his redirect examination, be introduced in evidence.</p> <p>2. Same — Relative Reliability — Instructions.</p> <p>It was not error for the court to refuse to instruct the jury, in an action for breach of contract, that they should bear in mind that written documents are more reliable than human recollections, where it was not shown that the contract between the parties rested in written documents, and the several claims of the parties as to the circumstances surrounding the making of the papers received in evidence, as well as the papers themselves, were presented to the jury under careful instructions.</p>

Bill by George W. Thompson against Emily C. Owens to set aside a deed. From a decree for complainant, defendant appeals. Defendant is a half-sister of complainant. He has one son. His property consisted of the 40 acres in question, used as a farm, and the personal property upon the same. In 1892, when he was 71 years of age, he was very sick, and did not expect to live.

Bill by Fred M. Abbott against Leonhard G-runer and Caroline P. Ellis, executors of the last will and testament of Joseph.J. Ellis, deceased, to have a deed declared to be a mortgage. From a decree for complainant, defendants appeal.

Assumpsit by the First State Savings Bank of Breckénridge against Charles E. Webster and others upon cer. tain promissory notes. From a judgment for plaintiff, defendants bring error.

Assumpsit by the Texarkana National Bank against Stillwell & Company, a corporation, upon an accepted time draft. From a judgment for defendant, plaintiff brings error.

Erfor to Alpena; Kelley, J. Case by tbe Alpena Loan & Building Associatiou against William E. Denison j-for the alleged negligent performance of his duties as auditor of plaintiff corporation. Erom a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by Isabelle Harris against Helen M. Gates on a promissory note. From a judgment for defendant on.verdict directed by the court, plaintiff brings error.

<p>1. Creditor’s Bill — Fraudulent Transfer of Firm Assets — Death of Partner — Parties.</p> <p>A firm creditor, after the death of one of the partners, may maintain a creditor’s bill to reach firm assets fraudulently transferred by the deceased to his wife, and traced by complainant into the hands of the wife’s executor.</p> <p>2. Same — Administrator as Complainant.</p> <p>Whether the deceased partner’s administrator would, by virtue o{ his interest in having the partnership property applied to the relief of his estate from partnership obligations, be entitled to maintain such a bill, — qucere.</p>

Case made from Gogebic; Haire, J. Assumpsit by L. R. Ermeling against Joseph S. Bargh, principal, and John D. Barry and H. E. Eos, sureties, on an attachment bond. Plaintiff had judgment, and defendants assign error.

■ Bill by William D. Pike against Jefferson Pike for the specific performance of a contract to convey real estate. Prom a decree for complainant, defendant appeals.

<p>Bill to Quiet Title — When Lies — Ejectment.</p> <p>A bill to quiet title will not lie against a party in possession, claiming ownership; ejectment being the only proper remedy in such case.</p>

Assumpsit by Thomas Kissane against the Detroit, Ypsilanti & Ann Arbor Railway to recover excess fare paid under protest. From a judgment for plaintiff, defendant brings error.

Bill by J. Warren Peake, receiver of the Ionia, Eaton & Barry Farmers’ Mutual Fire Insurance Company, against Robert D. Bradley and wife, to declare a lien upon real estate. From a decree dismissing the bill on demurrer, complainant appeals.

Debt by Philip Umphrey against Harry B. Emery and others upon a bail bond. Prom a judgment for defendants on verdict directed by the court, plaintiff brings error,

E. Medford Gilman was convicted of conspiracy to defraud, and sentenced to imprisonment in the Detroit house of correction for two years.

Cross-appeals from Wayne; Donovan, J. Bill by William Smalley and others against Joseph L. Gearing and others to enforce a mechanic’s lien. From the decree rendered, all of the parties except defendant Gearing appeal.

<p>Appeal from Gratiot; Dodds, J., presiding.</p> <p>Bill by Richmond E. Case against Abel L. Skinner to set aside a tax deed. Prom a decree for complainant, defendant appeals.</p>

Bill by Robert D. Russell, receiver of the Security Savings & Loan Association, against Henry W. Pierce and wife and Alfred J. Doherty and wife, to foreclose a mortgage. From a decree of foreclosure for less than the amount claimed, complainant appeals. This is a proceeding to foreclose a mortgage executed by the defendants Pierce to the Security Savings & Loan Association of Minneapolis, Minn. The defendant Doherty is a subsequent purchaser.

Case by Mary Fluhrer, administratrix of the estate of John M. Fluhrer, deceased, against' the Lake Shore & Michigan Southern Railway Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error. John M. Fluhrer, deceased, was a brakeman on the defendant’s road between Adrian and Jackson. He was killed while switching at defendant’s yard at Tecumseh, July 14, 1893, at a highway crossing.

Mandamus by Elliot O. Grosvenor, dairy and food commissioner, to compel John L. Duffy, a justice of the peace, to issue a warrant for an alleged violation of the pure-food law. From an order denying the writ, relator brings certiorari.

<p>Error to Washtenaw; Kinne, J.</p> <p>Case by John H. Shadford against the Ann Arbor Street Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Clair; Eldredge, J., presiding. Assumpsit by Henry P. Jenney against the township of Mussey for services as attorney. From a judgment for plaintiff, defendant brings error.

Replevin by James B. Vining and Donald Ferguson against Charles Millar and David W. Fox. From a judgment for defendants on verdict directed by the court, plaintiffs bring error.

Bill by Sina Bailey against William Bailey for a divorce. From a decree for complainant, defendant appeals. From a decree of divorce and for permanent alimony of $775, defendant appeals. The bill charges extreme cruelty, failure to support, and adultery. The last charge failed for want of proof. The court granted a divorce on the other two grounds. The parties were married March 5, 1880, and have one child, a boy, 15 years old when this bill was filed, October 23, 1897.

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

<p>Error to Wayne; Hosmer, J.</p> <p>Case by Mary B. Hardy against William Trick and John H. Powell for conspiracy to defraud. From a judgment for plaintiff, defendants bring error.</p>

Bill by Stephen Baldwin against Fred A. Baker to compel the discharge of a mortgage. From a decree for complainant, defendant appeals. The following are the allegations of the bill of complaint : Complainant purchased the land described in the bill of complaint, subject to a mortgage owned by defendant. December 13, 1897, there was due upon said mortgage $364.

Assumpsit by Mark George Davis against the Detroit Boat Works for services rendered. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff continued in the employ of the defendant for the years 1893 to 1897, inclusive. He was employed at the rate of $2.50 a day, or $15 a week, except once, in the winter of 1896-97, he testified that he was to receive $7.50 a week, but this was to be made up to him in the summer.

<p>1. Mutual Benefit Societies — Suit on Certificate — Evidence-Matters Within Decedent’s Knowledge — Agency.</p> <p>An agent of a benefit society who is not charged with any duty with respect to giving notices of assessments is not precluded from testifying, in an action for death benefits, to an admission by deceased of the receipt of notice of an assessment ; the statute (3 How. Stat. § 7545) prohibiting an agent of a corporation from testifying as to matters equally within the knowledge of deceased operating to exclude the testimony of such agents only as were authorized to act in the matter to which the testimony relates.</p> <p>2. Same — By-Laws —Local Lodges —Nonpayment of Assessments — Waiver.</p> <p>A mutual benefit society which lays upon the local lodges the duty of collecting assessments, giving them full power in respect thereto, including the right to reinstate members suspended for nonpayment, without notice to the supreme lodge. of such reinstatement if made within 90 days after suspension, cannot defeat an action for death benefits by showing that a by-law of the society provided that assessments should be paid within 20 days after notice, or the member stand suspended from beneficial membership, and that the deceased had. been in arrears in his last assessment for 40 days prior to his death, where it appears that the lodge of which deceased was a member had induced its members to believe, through a long-continued practice of receiving assessments after due without declaring a forfeiture, that a delay of less than 90 days would not imperil their rights.</p>

Bill by Joseph A. Jossman against Cassius E. Rice, Wilhelmina Rice, Olney A. Slater, and others, to enforce a mechanic’s lien. From a decree for complainant and defendant Slater, defendants Rice appeal.

Case by Harriet Jackson against the city of Lansing for personal injuries. Erom a judgment for defendant on verdict directed by the court, plaintiff brings error.

Petition by William C. and Herman R. Stoepel for an order requiring the Union Trust Company, as receiver of Samuel G. M. Gates, to pay rent for the full term of a lease executed by insolvent. From an order dismissing the petition, petitioners appeal. In 1896, S. G. M. Gates became insolvent, and the Union Trust Company was appointed receiver, with power to carry on the business.

Case by John Brinker against the Michigan Central Railroad Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff was injured by a collision with a regular passenger train on the defendant’s railroad at the highway crossing where defendant’s track crosses Carrollton avenue, near the northern limits of the village of Carrollton.

Case byRosann McGee against Anthony Baumgartner, Edward Sullivan, and Moses Giller for libel. From a judgment for plaintiff, defendant Baumgartner brings error. This is an action of libel. The libelous article complained of consists of a letter written by defendant Giller to Rev. Frederick J. Baumgartner, a brother of defendant Baumgartner, and secretary and chancellor of the diocese of the Romon Catholic Church of Detroit.

Assumpsit by Dorus A. Bullock against Christopher H. Ueberroth for goods sold and delivered. From a judgment for defendant, plaintiff brings error.

Bill by Lucy C. Eames, individually and as administratrix of the estate of Lovett Eames, deceased, against Charles H. Manley, administrator of the estate of Elijah W. Morgan, deceased, and others, for an accounting, and to set aside certain conveyances as fraudulent. From an order, overruling a demurrer to the bill, defendant Manley appeals.

<p>Appeal from superior court of Grand Rapids; Burlingame, J.</p> <p>Creditor’s bill by Eleanor C. Reeves against Frederick C. Miller and George R. Reeves. From the decree rendered, complainant and defendant Miller appeal.</p>

Error- to Van Burén; Buck, J. Assumpsit by the First National Bank of Paw Paw against Albert L. Houseknecht and another on a promissory note. From a judgment for plaintiff, defendant Houseknecht brings error.

Petition by Azuba Dumphey, by Edith Dumphey, her next friend, against Joseph S. Hilton and Roscoe D. Dix, auditor general, to reopen a decree in a tax proceeding. From an order sustaining a demurrer to the petition, petitioner appeals. The petitioner was the defendant in Hilton v. Dumphey, 113 Mich. 241.

Exceptions before judgment from Hillsdale; Chester, J. Willis E. Tracy was convicted of burglary. The information in this case contains two counts, the first charging burglary and the second larceny. Respondent was convicted on the first count, which alleged the commission of the crime on October 28, 1896. The property stolen consisted of two large horse blankets, a set of single harness, a bridle, and a pair of hopples. The property was in the buildings when night set in.

Ejectment by Mary L. Boardman against William Boozewinkel and wife. From a judgment for plaintiff, defendants bring error. This case was tried by the court without a jury, and the following findings made: “1. Francis D. Boardman became the owner in fee simple, by mesne conveyances from the United States, of the N. E. J of the S. W. |r of section 18, township 7 north, of range 11 west, Kent county, Michigan, on December 8, 1852. “2.

Case by William Peter against the Chicago & West Michigan Railway Company for the alleged negligent burning of lumber. From a judgment for defendant, plaintiff brings error.

Charles D. King presented a claim against the estate of Henry Van Voorheis, deceased. The claim was disallowed by the commissioners upon objection of Aaron Brewer, administrator of said estate, and claimant appealed to the circuit, where verdict was directed for defendant. Claimant brings error.

Bill by Cassius M. Phelps against the American Savings & Loan Association and William D. Hale, receiver, for the rescission of a contract and the cancellation of a mortgage. Defendant Hale filed an answer in the nature of a cross-bill, asking for an accounting and foreclosure. Prom a decree for complainant, defendant Hale appeals.

Attachment proceedings by Frederick W. Stock against Isaac N. Reynolds. Defendant brings certiorari to review the action of the circuit court in reversing an order of a commissioner dissolving the writ.

Assumpsit by Franz Power against the Monitor Insurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error. The defendant is a farmers’ mutual insurance company, doing business in the county of Oakland. On March 30, 1896, plaintiff made an application for insurance on buildings situated upon a farm owned by him, but then occupied by a tenant.

, presiding. Assumpsit by Sadie H. Lieberthal against Mollie Montgomery to recover back an advance payment of rent. Defendant having died, the cause was revived in the name of her executor, Clinton W. Montgomery. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by Lyda Atkinson against John E. Doherty & Company, a corporation, to restrain the use for advertising purposes of the name and likeness of her deceased husband. From a decree dismissing the bill, complainant appeals.

<p>Error to Shiawassee; Dodds, J., presiding.</p> <p>Case by Frank Herrick against Martin V. B. Wixom for personal injuries. From a judgment for defendant, plaintiff brings error.</p>

Case by Theresa M. Burt against Paul Staffeld and others for personal injuries. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Assumpsit by William J. Smith against Edwin B. Jennings, David M. Hillis, and Edward P. Caldwell, co-partners as the Consolidated Rail-Joint Company, on certain assigned labor claims. Prom a judgment for plaintiff, defendants Jennings and Hillis bring error.

Case under the civil-damage act by Maria Moreland against Leon Durocher, a saloon-keeper, and his bondsmen, impleaded with Phineas E. Wiggins, another saloon-keeper, and his bondsmen. Erom a judgment for plaintiff, defendants bring error.

Bill by William B. Seymour, administrator of the estate of Frances E. Wallace, deceased, against Jacob L. Wallace and Betsy Gates, to set aside certain deeds, and to subject the property conveyed to the payment of claims against the estate. From a decree for complainant, defendants appeal.

<p>1. Boundaries — Ascertainment—Evidence.</p> <p>Evidence in ejectment, in which the location of the boundary line between two lots as anciently platted is in controversy, that old stakes, made of material such as was used only by the early surveyors, were found driven into the ground at the points at which defendant claims the line to be, and that other stakes, some similar, some evidently placed by later surveyors, were also found at intervals conforming to other lot lines as shown by the plat, is sufficient, in the absence of proof of different lines, to entitle defendant to a directed ver diet.</p> <p>2. Same — Overplus of Land — Monuments.</p> <p>Mere proof of an overplus of land is insufficient to change boundaries that are marked by monuments.</p>

Clair; Vance, J. ■ Case by Elizabeth White against the township o’f Riley for personal injuries. From a judgment for plaintiff, defendant brings error.

Assumpsit by John W. Munton against Martha C. Rutherford and Charles M. Beckwith, alleged copartners as Charles M. Beckwith & Co., for goods sold and delivered. From a judgment for plaintiff, defendant Rutherford brings error. Plaintiff, a grain dealer, residing at Morgan, Mich., sold a car load of rye to Charles M. Beckwith & Co. for $235.90, and the sale was made with Mr. Beckwith exclusively.

<p>Error to Saginaw; Wilber, J.</p> <p>Trover by Gilbert Yeisley against John H. Bennett. Prom a judgment for defendant on verdict directed by the court, plaintiff brings error.</p>

<p>Error to Wayne; Lillibridge, J.</p> <p>Assumpsit by Jacob Kaempfer against Archibald G. Lindsay upon a contract for services. From a judgment for plaintiff, defendant brings error.</p>

Exceptions before judgment from Iosco; Simpson, J. George Tompkins was convicted of assaulting an officer.

Mandamus by Monroe B. Divine to compel the board of trustees of the village of Lakeview to approve a liquor bond. From an order granting the writ, respondents bring certiorari.

Bill by the Michigan Trust Company against the Lansing Lumber Company and Orlando M. Barnes to foreclose a trust mortgage. Prom a decree of foreclosure, but releasing defendant Barnes, complainant appeals. Defendant lumber company appeals from a final order denying its petition for an allowance for interest and expenses out of assets in the hands of the trustee.

Assumpsit by Joseph W. Eaton and another against Thomas J. Q-ladwell to recover for the construction of a building. Erom a judgment for plaintiffs, defendant brings error.

Assumpsit by Walter G. Hogan against Charles Dreifus, Emanuel Dreifus, and Leopold E. Block, co-partners as Dreifus, Block & Company, on certain acceptances. From a judgment for plaintiff on verdict directed by the court, defendants bring error.

Assumpsit by Anna Pokrefky, individually and as guardian of Charles Pokrefky, a minor, against the Detroit Firemen’s Fund Association, to recover for death benefits. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Case by Oscar Jungnitsch against the Michigan Malleable Iron Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

, presiding. Certiorari by William Look to review the decision of Edgar O. Durfee, probate judge of Wayne county, holding relator accountable to the probate court as administrator of the estate of John Schehr, deceased. From a judgment of affirmance, relator brings error.

Case by Edward Cagney against I. Nat Wattles, a justice of the peace, for official misconduct. From a judgment for plaintiff, on verdict directed by the court, for less than the amount claimed, he brings error.

Case by A. Adelbert Tillman against Abraham L. Beard for false imprisonment. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff was a vender of popcorn and peanuts. He had a machine 5 feet 2 inches long, 2i feet wide, and about 5.1-feet high. The machinery was operated by steam generated by a gasoline burner.

Assumpsit by Elbridge F. Bacon against William Reich for goods sold and delivered. From a judgment for defendant, plaintiff brings error.

<p>1. New Trial — Discretion oe Trial Judge — Review.</p> <p>While the Supreme Court is warranted by the provisions of Act No. 134, Pub. Acts 1893, in reviewing the discretion of the trial judge in refusing a new trial, asked on the ground that the verdict is against the weight of evidence, it will not ordinarily, after he has seen the witnesses, heard the testimony, and given careful consideration to the motion, interfere with his conclusions.</p> <p>2. Jurors — Qualification—Acquaintance with Parties.</p> <p>That a person summoned as a jiu-or has a general social acquaintance with one of the parties to a cause, and for that reason prefers not to sit, is not] ground for excusing him, where he declares that, should he sit, he can and will render a verdict according to the evidence.</p> <p>3. Same — Harmless Error.</p> <p>A judgment will not be reversed because the court excused a qualified juror who was acceptable to appellant, where it does not appear that appellant exhausted his peremptory challenges, that talesmen had to be summoned, or that he was otherwise prejudiced.</p>

<p>Error to Wayne; Lillibridge, J.</p> <p>Case by Anthony Piskorowski against the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.</p>

Replevin by John M: Hoffman against William H. . Simpson and others. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Cross-appeals from Berrien; Coolidge, J. Bill by the Michigan Telephone Company against the city of St. Joseph to restrain interference with complainant’s poles and wires. From the decree rendered, both parties appeal. The averments of the bill of complaint are substantially as follows: Complainant is a corporation organized under Act No. 129, Pub. Acts 1883 (3 How. Stat. chap. 102a). Its principal office is in Detroit.

Bill by the Michigan Telephone Company against the city of Benton Harbor to restrain interference with complainant’s poles and wires. From a decree dismissing the bill, complainant appeals.

Bill by J. Milton Earle- against Henry Humphrey and others to rescind a contract for an exchange of property. Prom an order overruling a demurrer to the bill, defendants appeal.

<p>Libel — Repetition of Report — Justification.</p> <p>Where one publishes that he has heard that another has been guilty, of certain disgraceful and criminal conduct, though he gives the source of his information, he makes the charge his own, and must show in an action of libel, to constitute justification, not merely that he has in fact heard the accusation, but that the charge itself is true.</p> <p>2. Same — Instructions.</p> <p>Where the publication set out in a declaration for libel declared that defendant was informed that plaintiff had been guilty of certain disgraceful and criminal conduct, it was error to instruct the jury that plaintiff could not recover if defendant had established the truth of the publication “substantially as it was set forth in the declaration,” since the jury might infer that it was a sufficient defense to show that plaintiff had been accused of the acts charged, without showing his guilt.</p> <p>8. Same.</p> <p>Where, in an. action for libel, the court has properly instructed the jury that the publication is libelous per se, it is error to submit a series of requests, covering nearly every charge contained in the publication, which permit the jury to find that the charges were not libelous.</p> <p>4. Same — Cross-Examination—Rumors and Opinions.</p> <p>It is error in an action for libel, based on the publication of an article charging plaintiff with criminal conduct, to permit defendant to show, on cross-examination of plaintiff’s witnesses, that they had heard rumors as to the conduct charged in the publication, and that, in their opinion, a trial referred to therein showed plaintiff up in a bad light.</p> <p>5. Same — Retort—Privilege.</p> <p>- A newspaper article, written in reply to an article in another paper charging one with corruption in office, which contains a series of charges of disgraceful and criminal conduct directed against the author of the previous article, is not privileged; the rule of privileged retort being limited to matters published in rebuttal which are relevant to the charges made or necessary to the defense.</p> <p>6. Same — Evidence—Provocation.</p> <p>In an action for libel based upon an article published in reply to an article charging defendant with corruption in office, the previous publication is admissible as showing provocation.</p> <p>7. Same — Mitigation on Damages.</p> <p>That defendant in an action for libel had heard plaintiff charged with the offenses set out in the libelous article may be shown in mitigation of damages, but it is immaterial that persons other than defendant had heard such charges.</p>

Quo warranto proceedings by Horace M. Oren, attorney general, to try the title of Merrie H. Abbott to the office of prosecuting attorney of Ogemaw county.

<p>1. Trial — Findings ok Fact — Appeal.</p> <p>Findings of fact in a case tried without a jury take the place of a verdict, and will not be disturbed on appeal if there is testimony tending to sustain them.</p> <p>2. Replevin — Demand on Agent.</p> <p>In replevin, proof of demand on defendant’s agent, in whose possession the property was found, and who was acting at the time for defendant, is sufficient, without showing a demand on defendant, to whom the agent subsequently delivered the property.</p>

<p>Mandamus by Almon L. Markham to compel Allen C. Adsit, circuit judge of Kent county, to vacate an order staying proceedings on a judgment.</p>

Mandamus by Charles F. Marskey, as guardian of Frankie Howe Bordwell, to compel Frank Lawrence, as administrator of the estate of Warren Bordwell, deceased, to pay a weekly allowance for the support of relator’s ward pending an appeal from an order of distribution. From an order denying the writ, relator brings certiorari.

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

Bill by Sarah L. Wallace' against the Ann Arbor & Ypsilanti Electric Railway Company to enforce an agree ment for passes over defendant’s road. From a decree for complainant, defendant appeals. Complainant owns a farm situated on the highway between Ann Arbor and Ypsilanti. At the time that the Ann Arbor & ¡Ypsilanti Street-Railway Company constructed its roadbed along this highway, she was not living there.

<p>Error to Jackson; Peck, J.</p> <p>Assumpsit by Mark Clawson against the Citizens’1 Mutual Fire Insurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.</p>

, presiding. Bill by Frankie McDonald against Louis Born for the specific performance of a land contract. There was a decree'for defendant, and complainant petitioned for a rehearing.

Petition by William Coyle against William O’Connor and Roscoe D. Dix, auditor general, to set aside a tax sale. From a decree for petitioner, defendant O’Connor appeals.

Petition by William Sirr, as next friend of Eveline Jane and Emma Goodreau, infants, against David Miller, to set aside a tax sale. From an order dismissing the petition, petitioner appeals.

<p>Mandamus by Hugo A. Wineman to compel Joseph W. Donovan, circuit judge of Wayne county, to dismiss an appeal from justice’s court.</p>

<p>Attorneys — Charges Against Judge — Disbarment.</p> <p>For an attorney-at-law to spread upon the records of the court, in support of a motion that the judge of another circuit be brought in to preside in a case against him, an affidavit containing charges of conspiracy and corruption on the part of the circuit judge and the attorneys for the plaintiff, for which Charges there is no foundation whatever in the facts, is just ground for his disbarment.</p>

Mandamus by William H. Elliott and others to compel the city of Detroit, its common council and clerk, to refrain from further action looking to the submission to the electors of said city, under Act No. 452, Local Acts 1899, of certain proposed amendments to the city charter, one relating to municipal franchises in general, and the other providing for the creation of a street-railway commission.

<p>Injury to Employé — Liability op Master — Law of Canada.</p> <p>Plaintiff was injured, while working in a tunnel on the Canadian side of the St. Clair river, by reason of the high pressure of air maintained. The court instructed the jury that it was defendant’s duty to adopt a proper system for maintaining the air pressure, and to use proper valves on the machinery, or to give plaintiff warning of the danger. Held, that such instruction was improper, as the law of Canada governing the case was that defendant had performed its duty when it employed competent persons to control the work, and authorized them to purchase suitable machinery and appliances.</p>

Mandamus by Frank L. Pixley to compel Orville W. Coolidge, circuit judge of Berrien county, to vacate an -order quashing a writ of capias ad respondendum. The relator brought suit, by the writ of capias ,ad respondendum, against one Calvin Totman.

Case by Rivington S. Chase, an infant, by William F. Soule, his nest friend, against the Michigan Telephone Company, for personal injuries. From a judgment for plaintiff, defendant brings error. Plaintiff, in July, 1894, when 16 years of age, was employed by the Telephone & Telegraph Construction Company at Ionia as a night operator and day messenger. He continued in its employ till May 27, 1895, when he was injured. One Miss Kimball was in charge of the office.

Bill by Fanny J. Hyatt and Charles M. Howe against Jarvis E. Albro, county drain commissioner, and others, to enjoin the deepening of the channel of a stream. From a decree dismissing the bill,' complainants appeal.

Case by the Commercial Bank of Bay City against 'Clarence B. Chatfield and Ira H. Wilder for negligence in the management of the bank’s funds. From a judgment for defendants, plaintiff brings error.

Bill by Rachel E. Blumberg against George H. Beekman and others to remove a cloud from title. Defendants filed an answer in the nature of a cross-bill, praying that a certain deed be declared a mortgage, and asking for an accounting. From a decree for defendants, complainant appeals.

Assumpsit by Isabella Langston against school district No. 3 of Springwells township upon a teacher’s contract. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff sued to recover for a year’s services as a school teacher, claiming that she had a contract with the defendant, and was prevented from carrying it out. She had been employed the year previous under a written contract.

Judgment creditor’s bill by the Manhard Hardware Company, Limited, against Solomon Rothschild, Max Simon, Charles Van Pelt, Rosa Rothschild, Simon Wetzler, David Sax, and Alexander Thai. From a decree for complainant, defendants Rothschild and Simón appeal. Complainant is a partnership association, limited, organized under chapter 160, 2 Comp. Laws 1897.

Ejectment by Charles E. Gates against Freeman B. Johnson. From a judgment for plaintiff on verdict directed by the court, defendant brings error. This is an action of ejectment. Plaintiff’s title rests upon a deed made by the auditor general upon a sale of the land for the taxes of 1891. By what title defendant claims, does not appear; the record simply showing that he was in possession of the land. Three objections are urged against the validity of the tax deed: 1.

, presiding. Proceedings under the log-lien law , by John Golden against Michael J. McCabe. Joseph W. Fordney and Aaron T. Bliss intervened as owners of the logs. From a judgment for plaintiff, on verdict directed by the court, against defendant McCabe, but denying a lien upon the logs, plaintiff brings error.

Louis Koch, executor of the last will and testament of Eelix Koch, deceased, appealed from an order of the probate court making an allowance for the support of Katherine Koch, widow of decedent. Erom an order dismissing the appeal, he brings error.

<p>Mandamus by Simon G. Webster to compel Roscoe D. Dix, auditor general, to accept a certain sum as payment in full for certain taxes.</p>

Case by Ruth I. Eye, an infant, by Henry W. Eye, her next friend, against Charles A. Chapin, for personal injuries. Erom a judgment for plaintiff, defendant brings error.

Assumpsit by Thomas J. Reilly and Michael Brennan,, executors of the last will and testament of Ann Leonard, deceased, against Mary A. Conway, for money had and received. ' From a judgment for defendant, plaintiffs bring error.

<p>1. Trial — Instructions — Theory of Defense — Impounding Cattle. •</p> <p>After defendant, in an action for the wrongful impounding of cattle, has expressly disclaimed any contention that the cattle were running at large in the highway when taken, and has stated his defense to be that the cattle were upon his land damage feasant, he cannot complain that the court refused to instruct the jury that, if the cattle were at large in the highway, defendant had the right to impound them.</p> <p>2. Cattle — When Running at Large.</p> <p>Cattle grazing in the highway, in view of and being watched by the owner, are not running at large, within the meaning of the statute authorizing their impounding in such case.</p>

Bill by Nellie E. Shields against the Equitable Life Assurance Society of the United States, impleaded with John C. Day and others, to re-establish a policy of insurance. , Prom a decree for complainant, defendant appeals.

<p>Insane Persons — Indigency—After-Acquired Property — Expense of Maintenance — Action to Recover — Jurisdiction.</p> <p>The circuit court has jurisdiction to render judgment against one committed to an asylum as an indigent insane person for the amount expended by the county for her maintenance, where, after commitment, she comes into possession of property sufficient to reimburse the county.</p>

Joseph Riede was convicted of robbery, and sentenced to imprisonment in the state house of correction at Ionia for 10 years.