Volume 123 — Michigan Reports

<p>Mortgages — Foreclosure—Set-Oee.</p> <p>Where a wife joins with her husband in a deed of his property, thereby cutting off her inchoate right of dower, upon an agreement that a purchase-money mortgage shall be given back to her and in her name, which agreement is carried out, the mortgagor cannot set off against the mort'gage debt, upon foreclosure, a claim of his against the husband.</p>

Assumpsit by Albert Smith, administrator of the estate-of Ellen E. Smith, deceased, against William Cowles, upon a judgment. From a judgment for plaintiff on verdict directed by the court, defendant brings error. Plaintiff brought suit in assumpsit upon a judgment in favor of Albert Smith and against the defendant, William Cowles, rendered in the circuit court for the county of Shiawassee on the 22d day of May, 1889, for the sum of $465.26.

<p>Error to Genesee; Wisner, J.</p> <p>Case by William Jenkinson, Jr., an infant, against Anna Coggins, for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Case by Gideon Thomas against the city of Flint for personal injuries. From a judgment for plaintiff, defendant brings error.

Patrick Casserly filed his final account as administrator of the estate of Margaret Green, deceased. From an order of the probate court charging the administrator with a certain sum, the administrator and James and Peter Casserly, heirs of decedent, appealed to the circuit court, where a larger sum was found due the estate. The administrator brings error.

<p>Error to Berrien; Goolidge, J.</p> <p>Trespass quare clausum by Oscar Wyant against the Central Telephone Company. From a judgment for plaintiff, defendant brings error.</p>

<p>Appeal from Wayne; Frazer, J.</p> <p>Bill by the State Savings Bank of Detroit against James N. Matthews, Jessie W. Radeliffe, and others, to foreclose a mortgage. A decree of foreclosure was rendered, and the request of defendant Radeliffe that it be entered under the provisions of Act No. 200, Pub. Acts 1899, being denied, she appeals.</p>

Assumpsit by the H. M. Loud & Sons Lumber Company against the township of Elmer to recover taxes paid under protest. From a judgment for plaintiff, defendant brings error. Reversed.

Case by Emma A. Trumbull against William L. January for fraud and deceit. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>1. Tax Deeds — Validity—Collateral Attack.</p> <p>A tax deed cannot be attacked collaterally upon the ground that the land was held by the State under former bids at the time of the filing of the auditor general’s petition, and was therefore improperly included therein. Peninsular Sav. Bank v. Ward, 118 Mich. 87, followed.</p> <p>2. Same — Loss of Files.</p> <p>Nor will it be defeated, in a collateral proceeding, by the fact of the loss from the files of the proof of publication of the petition and order of hearing, or of the county treasurer’s, report of sale.</p> <p>3. Same — Failure to Record Decree.</p> <p>Nor is it void for failure of the clerk to record the decree. Hooker v. Bond, 118 Mich. 255, followed.</p> <p>4. Same — Authority to Issue Deed — Constitutional Law— Remedial Legislation.</p> <p>Conceding that, under the saving clause (section 111) in the tax law of 1891, conveyances of the State’s interest in lands thereafter bid off to it for taxes delinquent at the time the act became operative (i. e., the taxes of 1889 and 1890) should have been executed by the auditor general, and not by the county treasurer, deeds issued by the treasurer under such circumstances were expressly validated by section 124 of the tax law of 1893; and, the State having the right to dispose of its lands in such manner as it should see fit, such, legislation is not open to the constitutional objection referred to in Hall v. Perry, 72 Mich. 202.</p>

Assumpsit by Charles W. Calkins, receiver of the Masonic Life, Association, against Crawford Angelí, to recover an assessment. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Tax Sales — Rehearing—Res Judicata.</p> <p>A petition to the chancery court to set aside its decree for the sale of land for taxes, and to permit petitioner to come in and defend, because of the failure of the treasurer to resort to personal property for the collection of the tax, and because of a premature return of the tax warrant, is in effect an application for rehearing, and could be based only on errors in the proceedings in that court; and hence its dis-missal is not res judicata as to the validity of a sale by the auditor general of the State’s interest in the land, which was bid off to it for the amount of the.tax, which sale is void, not because of any defect in the proceedings of the chancery court or invalidity in its decree, but because of the failure of the purchaser to pay the subsequent taxes which had become a lien on the land, as required by section 84 of the tax law of 1893.</p>

Debt by Smith, Sturgeon & Company, a corporation, against Fred L. Grosslight, principal, and Louis R. Gross-light and James D. Burns, sureties, upon a bail bond. From a judgment for plaintiff on verdict directed by the court, defendants bring error.

<p>Error to Mackinac; Adams, J.</p> <p>Assumpsit by Robert H. Benjamin against Peter Early on a promissory note. From a judgment for plaintiff, defendant brings error.</p>

Bill by Charles H. Kesler against Ransom C. Johnson, James D. Johnson, James B. Gardner, and Frank Updike to set aside certain conveyances of real estate. From a decree dismissing the bill, complainant appeals. One John C. Casler died testate in 1867.

<p>1. Execution — Irregular Sale — Collateral Attack.</p> <p>An execution sale of land in one parcel, which should have been sold in separate parcels, is voidable only, and not void, . and cannot be attacked in a collateral proceeding.</p> <p>2. Same — Homestead—Appeal—Question Not Raised Below.</p> <p>The question whether a sale under execution of two tracts as one parcel was void because one of the tracts was a homestead, not having been raised below, could not be considered on appeal.</p>

<p>Guardian and Ward —Final Accounting — Appeal prom Probate Court — Issue.</p> <p>Where, upon a guardian’s appeal from an order of the probate court charging him in his final account with the value of the ward’s interest in property sold, the circuit judge found that no valid sale was effected, it was proper to allow the basis of the account to be changed to a charge for rent, since the appeal brought the whole matter before the court for final adjudication.</p>

Bill by Annie A.. Bissell against David J. Hively, Mary A. Hively, Mary B. Stanton, and others, to foreclose a mortgage. From a decree for complainant, but granting defendants Hively relief against defendant Stanton, a subsequent mortgagee, the latter appeals. Defendant David J. Hively is tbe owner of a farm of 120 acres, covered by the two mortgages involved in this suit.

, presiding. Peter Kalunki was convicted of an assault with intent to do great bodily harm less than the crime of murder, and sentenced to imprisonment for four years in the state prison at Marquette. Under an information charging assault with intent to commit murder, respondent was convicted of an assault with intent to do great bodily harm less than the crime of murder.

<p>Appeal from Ingham; Person, J.</p> <p>Bill by the First National Bank of Ionia and others against George F. Gillam to compel the payment of rents collected by him as trustee. From a decree for complainants, defendant appeals.</p>

<p>Appeal from Alger; Steere, J.</p> <p>Bill by Charles R. Brown against the Houghton Mineral Land & Mining Company to quiet title. From a decree for complainant, defendant appeals.</p>

Bill by George F. Gillam, as trustee, against Orlando M. Barnes and others, to foreclose a mortgage. From a decree for complainant, certain of the defendants appeal.

Assumpsit to recover taxes paid under protest. From judgments for plaintiffs for less than the amounts claimed, they bring error.

<p>Wills — Forfeiture of Legacy — Evidence.</p> <p>Testator devised his property to his wife for life, and provided for a legacy of $700 to his nephew, who was living with him, “ if the said [nephew] shall continue to live with my family, and on my estate, until he shall arrive at the age of 21 years, and labor as faithfully as he has labored for me.” Before coming of age, the nephew left the family of his aunt, and went to work on a farm for wages. At the time he left, he was warned that by so doing he would forfeit his legacy. He testified that Iris aunt urged him not to leave at that time, but that, when he insisted, she made no objection. He did not file a petition for the allowance of the legacy until 25 years after he became of age. Held, that a finding that he had forfeited the legacy was warranted.</p>

<p>Error to Wayne; Lillibridge, J.</p> <p>Assumpsit by Teófila Malicki against the Chicago Guaranty Fund Life Society on a policy of insurance. From a judgment for plaintiff, defendant brings error.</p>

<p>Error to Hillsdale; Chester, J.</p> <p>' Trover by Ira N. Bryant against Daniel B. Kenyon. From a judgment for defendant on verdict directed by the court, plaintiff: brings error.</p>

Bill by Glenn W. Holmes, guardian of Frederick Miller, an insane person, against Joseph H. Martin, to set aside a mortgage. From a decree dismissing the bill, complainant appeals.

<p>Error to Saginaw; Wilber, J.</p> <p>Case by Clark R. Ramsay against C. K. Eddy & Sons, a corporation, for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by Matthew A. Graham, administrator of the estate of Andrew Brown, deceased, against James G. Alexander, on a promissory note. From a judgment for defendant, plaintiff brings error.

Case by August Hoeft against Jacob Kock and Charles Uelsmann, impleaded, etc., for alleged misrepresentations in the sale of corporate stock. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Judgment creditor’s bill by George H. Scripps against Andrew J. Crawford, Flavius L. Brooke, George’E.'Norris, Frederick H. Norris, George H. Hill, and the Union Trust Company, administrator of the estate of Wellesley W. Adams, deceased. From the decree rendered, all parties appeal.

Rill by Daniel Cleland against John H. Clark, Mary Clark, Charles Carpenter, Harriet Carpenter, George Newville, Lena Newville, and Isaac Manchester in aid of execution. From a decree for complainant, subject to the equities of certain defendants, he appeals.

Ei’ror to Marquette; Stone, J. Case by Frank Dollar against the city of Marquette for personal injuries. From a judgment for defendant, plaintiff brings error.

Bill by Alfred E. Smith against Andrew J. Kidd and others to set aside a levy and sale on execution. From a decree dismissing the bill, complainant appeals. Complainant seeks by bill in equity to set aside an execution levy and sale upon the ground that the land levied upon and sold was a homestead. Complainant purchased the land in 1892, built a house upon it, moved into it, and resided there until 1894.

Joseph; Yaple, J. Assumpsit by Kinyon Bly and Alexander Taylor against Isaac G. Bliss, impleaded with J. W. Brady and A. L. Guthrie, for rent. From a judgment for plaintiffs, defendant brings error.

Bill by Benjamin F. Morgan against Howard R.-King-man, Steven S. Hulbert, Brainard T. Skinner, and Mitchell N. Packard, trustees of the estate of Richmond Kingman, deceased, and Howard R. Kingman, individually, to subject the interest of defendant Kingman, as legatee under the will of said deceased, to the payment of a judgment in favor of complainant. ' From a decree dismissing the bill, complainant appeals.

Proceedings by Alexander L. Patrick against William Batten to set aside an award of arbitrators. Prom a judgment setting aside the award, Batten brings error. William Batten was a tenant of Alexander L. Patrick.

Case by Lee Brown, an infant, by his next friend, John Brown, against Gilbert Riggs, for malicious prosecution. From a judgment for plaintiff, defendant brings error.

Case made from Kent; Grove, J. Assumpsit by the Valley City Milling Company against Albert H. Prange upon promissory notes. There was a judgment for plaintiff, and defendant assigns error.. This case was tried before the court without a jury. The suit is based upon two promissory notes for $200 each.

<p>Error to' Grand Traverse; Mayne, J.</p> <p>Replevin by Owen Schoolcraft and Chauncey E. School-craft against Oscar Simpson, sheriff. From a judgment for plaintiffs, defendant brings error.</p>

Replevin by Marvin R. Salter, administrator of the estate of Julia E. Sutherland, deceased, against Daniel M, Sutherland. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>1. Criminal Law — Escape prom Jail.</p> <p>Upon a prosecution for robbery, evidence that the respondent escaped from jail while serving a sentence for a misdemeanor is competent, where it appears that he was at the time under arrest for the robbery, and knew that he would be put to trial for that offense.</p> <p>2. Same — Robbery—Evidence.</p> <p>Upon a prosecution for robbery, where it appeared that stolen articles were found on respondent’s premises, and that a billy belonging to him was picked up near the scene of the crime, it was proper to admit evidence that a pointed-toé shoe found concealed in respondent’s barn, and which made tracks corresponding to those near the place of the robbery, fitted the respondent; it appearing that he wore such shoes at the’time of the robbery, and ceased their use a short time afterwards.</p>

<p>Error to Cass; Coolidge, J.</p> <p>Harry Hogau was convicted of burglary.</p>

<p>State Tax Lands — Purchase by County Treasurer.</p> <p>The duties of the county treasurer and his deputies in relation to keeping lists of lands subject to purchase as State tax lands, and furnishing information therefrom to the public, are such as to preclude either of them, on the ground of public policy, from purchasing such lands from the State.</p>

<p>Appeal from Ionia; Davis, J.</p> <p>Bill by Frank Torpy against Lenora Betts, Stephen Hunt, and Grace May Hunt, to construe the will of. John Betts, deceased. From a decree for complainant, defendants appeal.</p>

Assumpsit by Thomas H. Reed against Benjamin C. Peacock and Jesse Peacock for rent. From a judgment reversing, on certiorari, the judgment of a justice-, of the peace, defendants bring error.

Case by Williston A. Keen against the Detroit Electric Railway for an alleged wrongful ejection from a street car. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by the State Bank of Eldorado, Kansas, against L. I. Maxson, impleaded with A. C. Maxson and others, upon a promissory note. From a judgment for plaintiff, defendant brings error.

<p>Master and Servant — Personal Injury — Knowledge of Danger — Recovery.</p> <p>An employ é, experienced in handling heavy objects, cannot recover against his employer for injuries received by being struck by an iron beam which he was assisting to unload from a wagon on which he had helped to load it; the operation being a simple one, and the employer having no knowledge of danger that the employe did not himself possess.</p>

Bill of interpleader by the Peninsular Savings Bank against Nancy Wineman individually, and Nancy Wine-man and Alfred C. Wineman as executors of the last will and testament of Henry Wineman, deceased, to determine the title to certain money on deposit with complainant. From a decree in favor of the estate, Nancy Wineman appeals.

Judgment creditor’s bill by Herbert W. Newlove, surviving partner of the firm of Alvin Wood & Co., against Homer Pennock. From an order overruling a demurrer to the bill, defendant appeals.

Trover by Louis X. Goulet and another against John Perry, impleaded with Amos Rosenberg and others. From a judgment for plaintiffs, defendant brings error.

Case made from Mason; McMahon, J. Replevin by Hamilton C. Ormsbee, administrator of the estate of Erastus N. Ormsbee, deceased, against George F. Piper, executor of the last will and testament of Mary A. Ormsbee, deceased. There was a judgment for defendant, and plaintiff assigns error.

.Error to Muskegon; Russell, J. Assumpsit to recover uncollected personal State and county taxes paid by plaintiff. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

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.

Bill by John C. Fitz Gerald, executor of the last will and testament of Harriet C. Phelps, deceased, against the city of Big Rapids, Alice A. Wellman, and others, to obtain a construction of said will. From a decree in favor of defendant city, the other defendants appeal.

<p>Breach of Marriage Promise — Evidence—Defamation—Damages.</p> <p>In an action for breach of promise of marriage, evidence that defendant, in giving his reasons for breaking the engagement, made certain false and slanderous statements concerning the plaintiff, is admissible to show wantonness and malice, byway of enhancing the damages for the breach of promise; but such defamation cannot properly be made the basis of an independent award of damages in such action.</p>

<p>Drains — Assessment for Benefits — Bill to Enjoin — Laches.</p> <p>After the expense of constructing a drain has been incurred, and orders have been issued for the work, it is too late for one who has had knowledge of all the proceedings tp appeal to equity to restrain the assessment and collection of a tax therefor against his lands, upon the ground that they were not benefited by the improvement.</p>

<p>1. Fire Insurance — Violation of Conditions — Waiver.</p> <p>Where an insurance company, on receipt of an affidavit of insured that a fire originated from a lighted lamp held by him while engaged in drawing oil from a tank in his store, wrote insured, denying liability under the policy, and calling attention to the condition therein claimed to have been violated, an objection that the company, by referring to the condition as one relating to the use of coal oil, instead of kerosene, waived the right to rely upon a breach of the condition, is without force.</p> <p>2. Same — Use op Kerosene — Special Agreement.</p> <p>Where a fire-insurance policy provided in printing that the policy should be void, unless otherwise provided by special agreement, if certain enumerated articles be kept or used on the premises, but which printed provision permitted the use and sale of kerosene oil under certain conditions, the fact that the policy was expressly made to cover a stock of ‘ ‘ paints, oils, * * * and such other goods as are usually kept” in a hardware store, did not onerate to annul the printed provision as to the conditions under which kerosene might be used and sold.</p> <p>3. Same — Forfeiture.</p> <p>Under the clause of the Michigan standard fire policy providing that it shall be void if there be kept or used on the premises “petroleum, or any of its products of greater inflammability than kerosene oil of thó United States standard (which last may be used for lights, and kept for sale accord ing' to law, but in quantities not exceeding five barrels,, provided it be drawn and lamps filled by daylight, or at a distance not less than 10 feet from artificial light),” a forfeiture is incurred if kerosene be drawn in any other manner than that specified.</p>

<p>Deeds — Construction—Property Conveyed.</p> <p>Where one, after building a house on a village lot owned by his brother, was given a deed conveying “all the house and premises situated on” the lot, describing it, together with the hereditaments and appurtenances thereunto belonging, it was properly held that the deed passed title to the lot as well as the house.</p>

Ejectment by George Eulton and Minerva Fulton against Frank E. Priddy, administrator of the estate of Samuel B. Reed, deceased. From a judgment for plaintiffs, defendant brings error.

<p>i. Replevin — Distrained Cattle — Bad Faith.</p> <p>Replevin will lie under the general statute for cattle unlawfully taken under claim of distress urged in bad faith, merely as a pretext to gain possession.</p> <p>3. Evidence — Boards of Supervisors — Proceedings—Authentication-Waiver.</p> <p>Defendant will not be permitted to urge upon appeal that a portion of the day’s proceedings of a board of supervisors, offered in evidence by plaintiff, was erroneously admitted, because not signed by the chairman and clerk of the board, where his counsel announced at the trial that he had no objection to the admission of the extract; plaintiff, under such circumstances, having a right to assume that proof of authentication was waived.</p>

Julia E. Wortman filed her final account as administratrix of the estate of Wallace E. Rice, deceased. From an order of the probate court charging her with certain items,' she appealed to the circuit, where verdict was directed in her favor. Arthur N. Hall, guardian of Fred and'Clifford Rice, brings error.

Bill by Butmister W. Darling against Oren Darling and others to have a certain deed decreed an equitable mortgage. From a decree for complainant, defendants appeal.

Jerome Schermerhorn presented for probate the alleged will of Mariette Bennett, deceased, and, probate being denied, he appealed to the circuit court. Erom a judgment for proponent, Giles Merritt and others, contestants, bring error.

<p>Error to Alpena; Kelley, J.</p> <p>Replevin by Simon Kirschbaum and others against Mas Jasspon and others. From a judgment for defendants, plaintiffs bring error.</p>

<p>1. - Intoxicating Liquors —Local-Option Law — Amendments— Repeal.</p> <p>The local-option, law of 1889 (ActNo. 207) was not repealed by Act No. 188, Pub. Acts 1899, which specifically repeals section 7 of the earlier law, purports to amend certain other sections, and adds a new section thereto, requiring druggists to report to the prosecuting attorney all sales of intoxicating liquors.</p> <p>2. Same — Submission to Electors.</p> <p>Act No. 183, Pub. Acts 1899, which amends the local-option law ' by requiring druggists to report to the prosecuting attorney all sales of intoxicating liquors, but which in no way alters the prohibitory features of the earlier law, is in effect in counties where local option is in force, without its being specially submitted to a vote of the people of the county.</p> <p>3. Same — Police Power — Constitutional Law.</p> <p>Act No. 183, Pub. Acts 1899, requiring druggists in counties where the local-option law is in force to report to the prosecuting attorney of the county, under oath, all sales of intoxicating liquors, is not a violation of Const, art. 6, § 26, prohib- . iting unreasonable searches and seizures, nor of section 32, providing that no person shall be compelled, in a criminal case, to be a witness against himself, nor be deprived of life, liberty, or property without due process of law, but it is a legitimate exercise of the police power of the State respecting the sale of intoxicating liquors.</p>

Bill by the First National Bank of Cooperstown, New York, against the State Savings Bank of Ionia and John Peter Johnson, to remove a cloud from title. From an order .overruling. its demurrer to the bill, defendant State Savings Bank appeals.

Bill by Lud S. Chandler against Hannah D. Graham, impleaded with Russell O. Haynes, administrator of the estate of Peter Havens, deceased, to determine the title to certain land and to the proceeds of its sale on foreclosure. From an order overruling a demurrer to the bill, defendant appeals.

Ejectment by Henry Finnegan against the city of St. Joseph. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Case by Lovina Carmer against Charles L. Hubbard, under 2 Comp. Laws 1897, § 5398, for selling intoxicating liquor to plaintiff’s minor son. From a judgment for plaintiff, defendant brings error.

Assumpsit by the First National Bank of Chicago against the Citizens’ Savings Bank of Detroit to recover the amount of a certificate of deposit sent to defendant for collection, and claimed to have been lost through defendant’s negligence. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Assumpsit by John D. Mouat against Frank H. Bamlet to recover an amount claimed to be due upon a contract for the manufacture and sale of a patented heater. From a judgment for plaintiff, defendant brings error.

<p>1. State Lands — Purchase—Partial Payment — Execution.</p> <p>A purchaser’s undivided interest in part-paid primary school land is subject, under 1 Comp. Laws 1897, § 1332, to levy and sale on execution.</p> <p>2. Same — Estates by Entirety — Fraudulent Conveyances.</p> <p>Where the stockholders in an insolvent bank were assessed to pay depositors, the undivided interest of one of them in land which, when the bank became insolvent, was held by him under a part-paid certificate from the State, the other undivided interest having been assigned by him to his wife, was properly subjected to the payment of the assessment, not with standing the fact that his purpose in assigning the interest in the certificate was to create an estate by the entirety, and that a patent was issued, after his liability as stockholder accrued, to him and his wife jointly.</p>

<p>1. Taxation — Description op Lands — Suppioienoy.</p> <p>A description of land in a tax roll as a given subdivision of section 8, T. 6, R. 6, is sufficient, where the roll is entitled in the name of the township, although there are four townships in the State so numbered.</p> <p>2. Same — Sale to State — Report op Sale — Suppioienoy.</p> <p>A tax sale under the law of 1889 will not be set aside, even in a direct proceeding, on the ground that the treasurer’s report of sale failed to show that the land was offered a second time before being bid off to the State, where it appears that the land was in fact so reoffered.</p>

<p>1. Taxation — Property Seized on Warrant — Replevin.</p> <p>The failure of the township treasurer to make a verified return of uncollected personal taxes, required by section 55 of the tax law of 1893 as a basis for the issuance by the county treasurer of a warrant for their collection, while sufficient to defeat an action at law to recover the tax, will not, of itself, in view of 3 Comp. Laws 1897, § 10651, providing that replevin shall not lie for property taken by virtue of a warrant for the collection of any tax, authorize the maintenance of replevin for property seized under a warrant fair on- its face.</p> <p>3. Same — Privies.</p> <p>Under section 40 of the tax law of 1893, providing that personal taxes shall be a lien on all personal property of the person assessed from and after the 1st day of December, and shall take precedence of any subsequent sale thereof, except where made in the regular course of trade; and 3 Comp. Laws 1897, § 10651, providing that replevin shall not lie for property taken by virtue of a warrant for the collection of any tax,— one who purchases chattels after the date mentioned cannot maintain replevin therefor against a tax collector who has seized them under a warrant, fair on its face, directed against the vendor.</p>

Case by Peter H. Highland against Joseph H. Schulte and others, constituting the Detroit board of health, for false imprisonment. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

, presiding. Assumpsit by Thomas Grashaw against Robert Wilson, principal, and John Falk and others, sureties, upon an appeal bond. From a judgment for plaintiff on verdict directed by the court, defendants bring error.

In the matter of. Alice Woodcock, an indigent insane person. From a judgment of the Kalamazoo circuit court finding that St. Joseph county was liable for-the support of said Alice Woodcock, the superintendents of the poor, of St. Joseph county bring error.

<p>Error to Oakland; Smith, J.</p> <p>Case by Henry Miller ¿gainst the Michigan Central Railroad Company for personal-injuries. From a judgment for plaintiff, defendant brings error.</p>

Case by William H. Tompkins against Bruce S. Bowen and John B. Leitch, saloon-keepers, and George A. Cotharin and Charles B. Flanders, sureties on their liquor bond, to recover damages and the statutory penalty for selling intoxicating liquor to plaintiff’s minor daughter. From an order overruling a demurrer to the declaration, defendants bring error.

<p>1. Tax Sales — Petition to Vacate — Laches.</p> <p>A petition to set aside a tax sale, though based on jurisdictional . defects, will not be entertained where filed more than two years after petitioner learned of the sale, and he fails to excuse the delay, and the rights of third persons have intervened.</p> <p>2. Same — Rights of Third Persons.</p> <p>The rights of a purchaser of timber products from a tax-title claimant cannot be litigated on a petition to set aside the tax sale.</p>

Case by Andrew Bell against the village of Wayne for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error. The facts are stated in the dissenting opinion of the chief justice.

<p>Error to Benzie; Aldrich, J.</p> <p>Bert Slayton was convicted of larceny.</p>

, presiding. Case by Anton Ribich against the Lake Superior Smelting Company for personal injuries. From a judgment for plaintiff, defendant brings error. The defendant, in connection with its business of refin-. ing, smelting, and manufacturing copper, operated cupolas in which mineral' copper was smelted. From these cupolas,. molten copper, mixed with slag, was run into cone-shaped pots at a temperature of about 2,500°.

Case by Arthur L. Pearl against' the township of Benton for personal injuries. From a judgment for plaintiff, defendant brings error.

Bill by John S. Foley against Matthias Kleibusch and others to restrain the erection of a church upon certain real estate. From a decree dismissing, the bill, complainant appeals.

Bill by Christian Mack and Frederick Schmid against the village of Frankfort and others, officers of said village, to compel defendants to reimburse complainants for moneys paid for village bonds. From an order overruling demurrers to the bill, defendants appeal.

Assumpsit by John R. Gordon against the Cleveland Sawmill & Lumber Company for logs sold and delivered. From a judgment for plaintiff, defendant brings error.

<p>Appeal from Montcalm; Davis, J.</p> <p>Bill by Edith A. Allen against Egbert S. Conklin and another, executors of the last will and testament of Richard Low, deceased, Jonah Low, and Peter Van Vleck, for an accounting with the estate, and to establish a lien upon land devised. There was a decree for compláinant, and defendant Van Vleck, as complainant’s assignee, made a motion for an order directing the payment to him of the moneys arising from a sale of the premises under the decree. The motion was opposed by James Donovan, as assignee of Jonah Low, and was denied by the court. Prom a decree distributing the proceeds, complainant, Van Vleck, appeals.</p>

<p>Error to Shiawassee; Smith, J.</p> <p>Case by May Rosa Ada Derham against William Derham for slander. From a judgment for defendant, plaintiff brings error.</p>

Mary Graff appealed from an order disallowing certain items in her final account as administratrix of the estate of Joseph Graff, deceased. The order of the probate court was reversed in the circuit, and William J. Graff and others, representing the estate, bring error.

Bill by Nancy A. Brainard against Joseph Feather and Matthew Seeger, administrator of the estate of Caroline Feather, deceased, for subrogation to the claim of Joseph Feather against the said estate. From a decree granting only a part of the relief sought, complainant appeals.

, presiding. Bill by Joseph J. Shearer against Charles H. Gibson for the cancellation of certain mortgages. Defendant filed an answer in the nature of a cross-bill, praying for the foreclosure of said mortgages. From a decree for defendant, complainant appeals.

, presiding. Assumpsit by the Ada Dairy Association against William Mears to recover the amount of a stock subscription. From a judgment for defendant, plaintiff brings error.

<p>1. Criminal Law — Arson—Evidence.</p> <p>Evidence reviewed, and held to be sufficient to support a conviction of arson.</p> <p>2. Same — Identification.</p> <p>In the absence of evidence that accused, charged with arson, was of uncommon height or figure, it was error to admit as affirmative evidence of identification that witnesses met a man in a public highway, in the evening, shortly after the fire, and from one to two miles from the building burned, of about the same size and height as the accused.</p> <p>3. Same.</p> <p>In a prosecution for arson, it was error to allow two active young men to testify for the people that they had started from the point where accused was claimed to have been" seen the night of the fire, and had walked in a given space of time to the burned building and back to accused’s home, over the same course he was claimed to have taken, for the purpose of convincing the jury that accused, a man 70 years old, and in ill health, could have made the trip in nearly the same time.</p> <p>4. Same — Trial—Impartial Conduct.</p> <p>Where the respondent in a criminal prosecution is unpopular in the community where the trial is had and the crime with which he is charged was committed, and there is great feeling and prejudice against him, the prosecuting attorney and circuit judge are under especial responsibility to conduct his trial with fairness and impartiality.</p> <p>5. Same — Misconduct of Prosecutor — Attack on Respondent’s Witnesses.</p> <p>It was reversible error for the prosecuting attorney to make unwarranted attacks upon respondent’s witnesses, calculated to arouse in the jury an unjust suspicion of their character and truthfulness.</p> <p>6. Same.</p> <p>It was error for the prosecuting attorney to make the statement, when a witness failed to appear, that he did not know who was “dragging away” the witnesses; it being in effect an insinuation that respondent was trying to keep the witnesses from attendance, for which charge there was no foundation.</p> <p>7. Same — Cross-Examination.</p> <p>Where accused was charged with arson, it was error to allow the prosecution to ask him, on cross-examination, if he had not set numerous other fires, for the mere purpose of conveying the impression to the jury that the prosecution believed that he had set them, without expectation that accused would give an affirmative answer.</p> <p>8. Same — Prior Offenses.</p> <p>Where accused was charged with arson, it was error to allow the prosecution to ask him, on cross-examination, whether he had not been threatened with arrest for setting fires in another State, where such questions related to matters occurring more than 32 years before the trial.</p> <p>9. Same — Motive—Witnesses—Uncertainty.</p> <p>On a prosecution for arson, the testimony of the owner of the building burned, introduced for the purpose of showing a motive for the crime, that he was of the impression that he had a conversation with respondent in regard to the insurance, but was not positive whether he had or not, should have been excluded, as not rising to the dignity of evidence.</p>

Replevin by Charles Hoffman and others against Frank J. Gorman. From a judgment for defendant, plaintiffs bring error. This suit, an action of replevin, was commenced in justice’s court. Plaintiffs obtained possession of the property-under the writ. Defendant pleaded the general issue, and upon trial verdict was rendered for the defendant for $40; the return of the property being waived. Plaintiffs took an appeal to the circuit court.

Assumpsit by Julius W. Schaub against the Arc Welding Company for the breach of a contract of employment. From a judgment for plaintiff, defendant brings error.

Assumpsit by Arthur D. Holmes against David J. McAllister and James A. McAllister, copartners as the Siau Laundering Company, for medical services rendered to an employé of defendants. From a judgment for plaintiff, defendants bring error. Plaintiff, a physician, sued the defendants, copartners in a laundry business, for medical services rendered one of their employés, and recovered a verdict of $50. The case was submitted to the jury upon two theories: 1.

. Replevin by the Excelsior Iron Works against Fred E. Lee and William G. Howard, trustees of the estate of P. D. Beckwith, deceased. From a judgment for defendants, plaintiff brings error. This is an action of replevin to recover possession of one single-phase Mayo alternator and exciter. The finding made by the court covers 14 pages. It is unnecessary to state the findings in full. The court rendered judgment for the defendants.

Almon L. Markham filed a petition in the probate court for an order requiring Silas L. Hufford and William Hoyle Jones, as executors of the last will and testament of Mary C. Jones, deceased, to pay him the amount of a certain legacy. The petition was denied in the probate court, and petitioner appealed to the circuit court. From a judgment for petitioner, defendants bring error.

Mandamus by the Citizens’ Savings Bank of Detroit to compel Roscoe D. Dix, auditor general, to cancel a certain tax deed, and to issue one to relator.

Assumpsit by Charles Hebard and another against George W. Shaw for services rendered. From a judgment for defendant, plaintiffs bring error.

Petition by Roscoe D. Dix, auditor general, for the sale of lands delinquent for taxes: On objections filed by the Pioneer Iron Company and others. From a decree setting aside the taxes, petitioner appeals.

<p>1. Fraudulent Conveyances — Knowledge op Grantee — Findings op Fact — Judgment.</p> <p>Where, in replevin against an officer for property seized on execution against a third person, and claimed by plaintiff to have been turned over to her by the execution debtor in satisfaction of a note, the court found as a fact that plaintiff had no knowledge that the vendor owed any debts aside from the note, a judgment for defendant, on the theory that plaintiff took the property with intent to defraud the vendor’s creditors, was unwarranted.</p> <p>2. Same — Change op Possession — Evidence.</p> <p>Where, in replevin against an officer for property seized on execution against a third person, and claimed by plaintiff to have been turned over to her by the execution debtor in satisfaction of a note, the evidence showed that plaintiff, at the maturity of the note, was given a bill of sale of the projjerty; that át that time, or soon afterwards, she purchased from the debtor the farm on which the property was located, and placed a third person in charge for her; and that, after several months, she removed the property to the farm on which she lived, where the debtor was employed by her, and where he remained up to the time of the levy, — a finding that there was no change of possession which would avail against other creditors was erroneous.</p>

Assumpsit by the city of Muskegon against George Boyce to recover a tax on personal property. From a judgment for plaintiff, defendant brings error.

Certiorari by Charles A. Scholtz, drain commissioner of Gratiot county, to review the action of Townsend A. Ely, Hiram Haring, and Frank E. Durfee, acting as a board of review in drain proceedings. From a judgment for respondents, petitioner brings error. This case is brought to this court by writ of error to review the judgment of the circuit court in sustaining the action of a board of review in reducing the assessment of one of the townships interested.

<p>Mandamus by Fred S. Wass t© compel the board of' examiners of barbers to issue him a certificate. .</p>

Trespass by Orr H. Russell against Charles E. Chittenden and others for cutting timber. From a judgment for defendants, plaintiff brings error.

Bill by Edward W. Voigt against the city of Detroit and Thomas M. Lucking, receiver of taxes, to enjoin the collection of a special assessment. From a decree for complainant, defendants appeal.

Mandamus by Charles E. Hall to compel Clement Smith, circuit judge of Calhoun county, to vacate a judgment as to one of two defendants, and affirm it as to the other.

Bill by John C. Goodrich and Clarence M. Burton against the city of Detroit and Louis B,. Littlefield, city treasurer, to enjoin the collection of a special assessment. From a decree dismissing the bill, complainants appeal.

Mandamus by Hiram E. Ellis to compel the common council of the city of Grand Rapids, and Lant K. Salsbury, city attorney, to audit and allow a claim for services, and to revoke an order removing relator from office. From an order granting the writ, respondents bring certiorari. Act No. 205 of the Public Acts of 1897 reads as follows; “Section 1.

Exceptions before judgment from superior court of Grand Rapids; Newnham, J. Reindert De Vries was convicted of violating an ordinance regulating tbe disposition of garbage.

Assumpsit by Justus S. Stearns against Harry P. Wiborg and another for goods sold and delivered. From a judgment for plaintiff, defendants bring error. This suit is brought to recover for a bill of lumber for 1261.02, alleged to have been sold by plaintiff to the defendants. It was commenced by declaration filed July 13, 1898. The sale was made through one Sprague, an agent for the plaintiff. Defendants reside in Cincinnati, Ohio.

<p>Evidence — Parol Agreement — Admissibility.</p> <p>Where a purchaser of goods from a trustee for creditors -gave his notes for the price to the creditors whose claims were admitted, under a verbal agreement and understanding that they should prorate with him any additional amount he might be required to pay to others, whose claims were then in dispute, evidence of such agreement, in an action to enforce it against the original creditors, was not objectionable as contradicting the notes.</p>

Bill by James Curran against William H. S. Banks, Benjamin Smith, Jane Smith, and Cora M. Shakespeare for the specific performance of a land contract. From a decree for complainant, defendants Banks and Benjamin Smith appeal.

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

<p>Appeal from Van Burén; Smith, J.</p> <p>Bill by George M. Lyle and others, executors of the last will and testament of William Lyle, deceased, against L. R. Anderson and May Grace Hammond, to set aside, the allowance of a claim against the estate of decedent. From a decree dismissing the bill, complainants appeal.</p>

Cross-appeals from Newaygo; Edwards, J. Bill by Joseph Gerber against Helen L. Upton for the specific performance of a land contract, and to restrain the prosecution of an action of ejectment. From the decree rendered, both parties appeal. One Adonijah E. Upton died April 18, 1894, leaving a widow, the defendant, and five children, two of whom were minors. He was possessed of a farm of 95 acres, incumbered by a mortgage of-$2,200.

<p>Error to Wayne; Lillibridge, J.</p> <p>Case by Sarah J. Matthews against the Detroit Journal Company for libel. From a judgment for plaintiff, defendant brings error.</p>

<p>Contracts — Mutuality.</p> <p>A contract by the terms of which one of the parties agrees to furnish and the other to buy all the ice necessary to carry on the latter’s business in a certain locality for a period of five years from date, at a specified price per ton, is not void for want of mutuality, as the quantity to be taken is measured by the necessities of the business, which is presupposed to continue for the time agreed.</p>

Mandamus by Lucius H. Gibbs to compel Frank D. M. Davis, circuit judge of Montcalm county, to vacate an order dismissing an action at law. The relator is the assignee of William Gr. Wisner, who made to him a common-law assignment for the benefit of creditors. Among the assets was a note for $100, made by P. M. Lathrop, and payment guaranteed by Mr. Van Ness, the defendant. Relator brought suit upon this note in justice’s court, and recovered a judgment.

<p>Mandamus by Jerome E. Turner to compel Philip Padgham, circuit judge of Ottawa county, to vacate an order setting aside a default.</p>

Mandamus by William J. Ambos to compel Howard Wiest, circuit judge of Ingham county, to enter a decree of divorce in favor of relator. Relator filed a bill for divorce against his wife. The bill was filed November 9th. The jurat bears date November 4th, and the petitioner says that he cannot say whether it was actually sworn to on that day or some later day.

Bill by the World Manufacturing Company, Joseph O. Stokes, and William J. B. Stokes against the HamiltonKenwood Cycle Company, the National City Bank of Grand Bapids, J. Frederic Baars, trustee, Jennie W. Mc-Kibben, and others, for the cancellation of certain promissory notes. From a decree for defendants upon answers in the nature of cross-bills, complainants appeal.

Assumpsit by the Keystone Manufacturing Company against Charles Forsyth and Charles Neuendorf upon promissory notes. From a judgment for defendants, plaintiff brings error.

Case by Mary L. Shaw, an infant, by her next friend, Charles B. Lamb, against the Chicago & Grand Trunk Railway Company, for personal injuries. From a judgment for plaintiff, defendant brings error.

Bill by Henrietta W. Taylor against Solomon B. New-comb, John Banfield, and another, to enjoin the removal of' manure from leased premises. From a decree dismissing the bill, complainant appeals.

, presiding. Bill by Frank J. Sokup and William Reid against Francis Letellier, Abraham Vanden Boogert, and Clara S. Morley to subject a mortgage to the payment of certain claims. From the decree rendered, complainants and defendant Letellier appeal.

Bill by Frank R. Chase and George Banks against Cíiarles W. Middleton, executor of the estate of Edward Middleton, deceased, Albert W. Middleton, Cass T. Wright, Nathaniel Havens, and the township of Oakfield, for an injunction and other relief. From a decree dismissing the bill, complainants appeal.

<p>Trial — Accounts—Order of Reference — Discharge of Auditor-Mandamus.</p> <p>Under 3 Comp. Laws 1897, §§ 10098, 10103, authorizing trial courts to appoint auditors to investigate accounts, and to discharge them for sufficient reasons, and appoint others, an order discharging an auditor appointed to take an account is within the discretion of the trial court, and, in the absence of abuse of such discretion, mandamus will not issue to set aside the order.</p>

Mandamus by Richard Metcalfe to compel the Michigan state board of registration in medicine to register relator, and issue to him a certificate of registration.

<p>Error to Gratiot; Daboll, J.</p> <p>Assumpsit by George N. Siefert against Jacob Siefert, Jr., upon certain promissory notes. From a judgment for defendant, plaintiff brings error.</p> <p>This was a suit upon two promissory notes, of $112.50 each. The defense is payment. Defendant gave testimony tending to show that at a certain time, in his house, he paid the plaintiff $193 in payment of the notes. The case had once been tried, and defendant’s wife was a witness, and testified that she heard plaintiff and defendant “figuring, out in the kitchen.” Plaintiff denied that he was present at that time. Defendant testified that his wife was sick, and unable to go out; was suffering from nervous prostration; was under the doctor’s care; that excitement made her nervous. On cross-examination, he testified that she was up and around the house; did some work; that she was getting better; and had been up and around the house for a week. Upon this showing, the court permitted her former testimony to be read.</p>

Assumpsit by the Peninsular Savings Bank against Cameron Currie upon a promissory note. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Mandamus by Chase S. Osborn, commissioner of railroads, to compel the Wabash Railroad Company to reduce its passenger rates. From an order denying the writ, relator brings certiorari. The respondent; in its annual report of its income for the year ending December 31, 1898, reported: 1. Total passenger fares.______________________§141,922 00 2. Express___________________________________ 7,195 26 3. Mails______________________________________ 9,367 33 4.

Bill by Orinda Gardner against James B. Gardner, William S. Holmes, and another, to establish a homestead in certain land. From a decree for complainant, defendants appeal.

Assumpsit by J. Warren Peake, receiver of the Ionia, Eaton & Barry Farmers’ Mutual Fire-Insurance Company, against E. N. Yule, to recover an assessment on a policy. From a judgment for plaintiff, defendant brings error.

Assumpsit by J. Warren Peake, receiver of the Ionia, Eaton & Barry Farmers’ Mutual Fire-Insurance Company, against George S. Fuller, to recover an assessment on a policy. From a judgment for plaintiff, defendant brings error.

Assumpsit by Joseph Cavanagh, receiver of the Alpena, Alcona & Montmorency Farmers’ Mutual Fire-Insurance' Company, against Alexander Connon, to recover an assessment on a policy. From a judgment for defendant, plaintiff brings error.

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

, presiding Assumpsit by the Michigan Trust Company, receiver of the Mecosta County Savings Bank, against Dolly Ann Comstock, to recover an assessment on a stock certificate. Prom a judgment for plaintiff, defendant brings error. Daniel P. Comstock, the husband of defendant, was one of the largest stockholders of the Mecosta County Savings Bank, and its president, during its entire existence. On December 24, 1889, there was issued to him certificate No. 23, for 100 shares.

Case by Grant S. Bennett against the Detroit Citizens’ Street-Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff, while crossing the tracks of defendant’s railway on Congress street on his bicycle, was struck by a car and injured. Congress street runs easterly from Woodward avenue, and on it the defendant maintains a double-track electric railway.

<p>Appeal — Evidence—Foreclosure of Mortgage — Forged Signature.</p> <p>A decree of foreclosure, rendered on conflicting evidence as to whether the purported signature of defendant to the mortgage in suit was a forgery, was affirmed.</p>

Assumpsit by Otis Meade against Robert Bowles upon an assigned claim for legal services. From a judgment for plaintiff, defendant brings error.

<p>1. Attachment — Return of Writ — Substituted Service.</p> <p>Under Circuit Court Rule No. 1, subd. a, requiring the sheriff to make his return in attachment proceedings immediately after service, or, in case of no service, immediately “ after the return day,” a return of “not found,” filed on the return day of the writ, affords no basis for substituted service.</p> <p>3. Court Records — Date of Filing — Contradiction by Parol.</p> <p>Circuit Court Rule No. 38 requires the clerk to indorse on every paper the date on which the same is filed. Held, that the filing date placed by the clerk upon a return becomes part of the records of the court, and cannot be contradicted by parol.</p>

<p>Appeal — Question oe Fact — Judgment.</p> <p>The only question in the case being one of fact, as to whether the note in suit was given as payment upon a land contract, or as accommodation paper, in the nature of a loan, and that question having been resolved by the jury in accordance with plaintiffs contention, the judgment in his favor was affirmed.</p>