Volume 124 — Michigan Reports

<p>1. Partnership — Levy—Individual Debt.</p> <p>An execution for an individual debt cannot be levied on the debtor’s undivided interest in a portion of partnership property.</p> <p>2. Same — Replevin—Abatement—Pendency op Equity Suit.</p> <p>An action by the members of a firm to replevy firm property, on which a sheriff has levied under a judgment against one of the copartners, is not inconsistent with a former suit to enjoin a sale of the property until an accounting could be had between the partners, and hence the pendency of the suit in equity is no bar to a prosecution of the action of replevin.</p>

<p>1. Corporations — Business Office — Agent in Charge — Service of Process — Jurisdiction. .</p> <p>2 Comp. Laws 1897, § 7056, relative to manufacturing corporations, requires such corporations to maintain one business office in the State, at a place designated by the stockholders and certified to the secretary of state, and authorizes the service of notice or process on the corporation by serving its agent in charge of such office. Section 7066 provides that notice or iirocess against such a corporation may be served on an agent in charge of any business office of the corporation in the State. Held, that a court acquires no jurisdiction of an action against such a corporation where the summons is served on an agent of the corporation in charge of an office other than the business office designated by the stockholders and certified to the secretary of state.</p> <p>2. Same — Summons—Return.</p> <p>Under 2 Comp. Laws 1897, §§ 7056, 7066, permitting service 'of notice or process to be made on manufacturing corporations by serving the agent of the corporation having charge of its designated business office, a return on a justice’s summons which shows that the service was made on an agent, but does not state that it was the agent in charge of such office, does not confer jurisdiction on the justice. .</p>

, presiding. Bill by Kate Hewitt against the village of Reed City to set aside an award. From a decree for complainant, defendant appeals.

<p>Error to Wayne; Lillibridge, J.</p> <p>Ejectment by George L. Beecher against Alfred Eerris and Osman B. Oanney. From a judgment for defendants,. plaintiff brings error.</p>

Assumpsit by Charles H. Hoskins against Charles D. Dickinson on a promissory note. From a judgment for defendant, plaintiff brings error. Plaintiff’s suit is based upon a promissory note for $400, dated July 12, 1898, executed by the defendant to the plaintiff.

<p>Default — Motion to Set Aside-t-Laohes — Garnishee Defendant.</p> <p>Circuit Court Rule No. 12, subd. b, which, provides that a default, duly entered after personal service, shall not be set aside unless on application made within six months after such service, precludes the circuit judge from setting aside the default of a garnishee defendant after such period has elapsed, though it appear that the defaulted party is a foreigner, and did not understand the process served.</p>

Bill by Jobn Daschke and others against Harry L. Schellenberg and others to enforce a mechanic’s lien. From an order overruling a demurrer to the bill, defendants appeal: On motion to dismiss.

Petition by the superintendents of the poor of Jackson county against the superintendents of the poor of Hillsdale county to determine the liability for the support of an indigent insane person. Prom an order in favor of petitioner, defendant brings certiorari.

<p>Error to Wayne; Frazer, J.</p> <p>Trespass vi et a/nnis by George B. Goucher against James Jamieson. From a judgment for plaintiff, defendant brings error.</p>

Summary proceedings by Catherine O’Connor against James White to recover the possession of leased premises. From a judgment for complainant, defendant brings error.

Attachment proceedings in justice’s court by George Eaul against Thomas Beucus and others, in which proceeding Frank F. Hilbert and others were garnishees. There was a judgment, for plaintiff, and the principal defendants removed the cause to the circuit court by certiorari. From a judgment there for plaintiff, defendants bring error.

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

<p>Appeal from Macomb; Eldredge, J.’</p> <p>Bill by John Voss against William Lippert, Jr., for an accounting. From a decree dismissing the bill, complainant appeals.</p>

Assumpsit by Edward J. Smith against William T. Martin and Cora Martin, his wife, for goods sold and delivered to the wife prior to the marriage. From a judgment for plaintiff, defendants bring error.

Case by Cecelia R. Lellis, administratrix of the estate of Stephen Lellis, deceased, against the Michigan Central Railroad Company and the Ann Arbor Railroad, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

, presiding. Bill by the Wyandotte Electric-Light Company against the city of Wyandotte and others to restrain interference with complainant’s poles and wires. Defendants filed an answer in the nature of a cross-bill, praying that complainant be required to remove such poles and wires from the streets. From a decree for complainant, defendants appeal. The complainant was organized September 19, 1889, with four incorporators.

Assumpsit by James H. Donovan against Philip Daiber for money paid to defendant’s use. From a judgment for plaintiff, defendant brings error. Plaintiff was a member of the Detroit Board of Trade. His business was that of a commission merchant, buying and selling wheat and other produce upon commission. His version of the transaction is as follows: Defendant deposited with him $200, and gave him orders to trade for him in grain in Chicago.

Bill by Antoine Christian against Sam A. Soderberg and Anna Soderberg to foreclose a mortgage. Complainant appeals from an order denying, as to defendant Anna, an execution for a deficiency.

Bill by Veronica Nulling against Frantz Nulling and wife to enforce a vendor’s lien. From a decree dismissing the bill, complainant appeals.

. Bill by the National Mutual Building & Loan Association of New York against Albert H. Burcb, Esther A. Burch, and Francis L. Thorpe to foreclose a mortgage. From a decree in its favor for less than the amount claimed to be due, complainant appeals.

Mandamus by Asa W. Field, receiver of the estate of George B. Wiggins, insolvent, to compel Byron A. Snow, circuit judge of Saginaw county, to vacate an order quashing the service and proceedings under a petition filed by relator for an execution for a deficiency arising under a mortgage foreclosure.

Certiorari by the Chicago & Grand Trunk Railway Company to review an order of Charles E. Chappell, drain commissioner of Eaton county, requiring it to lower a culvert. From a judgment sustaining the action of the commissioner, plaintiff brings certiorari.

Bill by tbe city of Kalamazoo to restrain tbe Kalamazoo Heat, Light & Power Company from laying gas-pipes in tbe streets. From a decree for complainant, defendant appeals.

Bill by John Koeppen and Luella Koeppen, infants, by Helen Thompson, their next friend, against Theodore Harms, Caroline Harms, and others, to enforce a trust. From a decree denying, in part, the relief asked, complainants appeal.

Mary Henrich and others presented for probate the will of Elnora Saier, deceased. The will was allowed, and William Saier and Jessie E. Saier appealed to the circuit court. Prom a judgment for proponents, contestants bring error.

Case by Fred Wright against the Big Rapids Door & Blind Manufacturing Company for personal injuries.From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Appeals from Clinton; Daboll, J. Bills by Willard C. Lyon, trustee in bankruptcy of the estate of Fred E. Hazle and Frank B. Clark, against Nathaniel J. Clark and wife, and against Robert Hazle and others, to set aside certain conveyances alleged to have been made in fraud of the bankruptcy law. From orders overruling demurrers - to the bills, defendants appeal.

Assumpsit by the People’s Savings Bank against Daniel J. Campau and others upon a bond. Prom a judgment for plaintiff on verdict directed by the court, defendants bring error.

Bill by the Kerr-Murray Manufacturing Company against tbe Kalamazoo Heat, Light & Power Company and others to enforce certain mechanic’s liens. From a decree for complainant, defendants appeal.

Bill by the Johnson Electric-Service Company against the Detroit Chamber of Commerce and others to enforce the collection of a judgment. From a decree dismissing the bill, complainant appeals.

Replevin by John S. Lawrence, trustee, against Daniel F. Comstock and Jennie M. Milner. From a judgment for plaintiff on verdict directed by the court, defendants bring error.

<p>Error to Shiawassee; Dodds, J., presiding.</p> <p>Case by Edward M. Rohrabacher against Lyman E. Woodard for personal injuries. From a judgment for defendant, plaintiff brings error.</p>

Case by Burton T. Mor ley against the village of Buchanan for damages caused by a change of street grade and the destruction of a gutter. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Garnishment — Judgment—Appeal.</p> <p>There being evidence to sustain the finding of the jury that the garnishee liad property or effects in her hands, belonging to the principal defendant, sufficient to pay plaintiff’s judgment, the judgment establishing her liability was affirmed.</p>

Case by Ratie E. Corey against the city of Ann Arbor for personal injuries. From a judgment for plaintiff, defendant brings error. Plaintiff slipped upon an icy sidewalk on Williams street, in the city of Ann Arbor, in the evening of February 4, 1898, and received serious injuries. The ice was opposite the premises of one Rockwell, who had a hydrant in his yard.

Case by Frank C. Reaume against Cyrenius A. New-comb and others, copartners as Newcomb, Endicott & Co., for personal injuries. From a judgment for plaintiff, defendants bring error. The defendants are dry-goods merchants, forming a copartnership under the firm name of Newcomb, Endicott & Co. They employ in their business eight delivery wagons, each drawn by a single horse. The drivers are boys, each boy having his own wagon and particular horse.

Case by Leon Grenell, an infant, by Frank Grenell, his next friend, against the Michigan Central Railroad Company, for personal injuries. From a judgment for plaintiff, defendant brings error. Plaintiff, a boy 13 years of age, while driving a load of wood, drawn by two horses, across the defendant’s track, was struck by the engine of an extra freight train, and seriously injured. The land on both sides of the track is considerably higher than the track.

<p>.Error to Wayne; Donovan, J.</p> <p>Replevin by Cassius M. French against Edward H. Newberry. From a judgment for plaintiff, defendant brings error.</p>

<p>Case made from Kent; Adsit-, J.</p> <p>Ejectment by Anna Koster against Catherine Gellen. There was a judgment for defendant, and plaintiff assigns error.</p>

Mandamus by Patrick Casserly to compel Byron S. Waite, circuit judge of Wayne county, to vacate an order striking an amended answer from the files.

<p>-1. Bastardy — Evidence.</p> <p>In bastardy proceedings, acts of intercourse and undue familiarity both before and after the alleged act resulting in conception are admissible, as bearing upon the probability of the intercourse at the time stated in the complaint.</p> <p>3. Same — Objections—Appeal.</p> <p>In bastardy proceedings, an objection to the admissibility of evidence of an aot of intercourse subsequent to the one charged in the complaint is not sufficient, standing alone, to entitle respondent to urge on appeal that his conviction was erroneous because based on proof of the later act.</p> <p>3. Same — Complaint—Amendments.</p> <p>Upon the trial of a prosecution for bastardy, the circuit judge may allow the complaint to be amended to conform to the proofs with respect to the date on which the act resulting in</p> <p>. conception is alleged to have been committed.</p> <p>4. Same — Order of Maintenance — Indefiniteness.</p> <p>An order of maintenance in bastardy proceedings, requiring the father to pay a specified sum per month towards the support of the child “until the further order of the court,” is erroneous, as not placing any limit on.the liability.</p> <p>5. Appeal — Typewritten Record — Prolixity.</p> <p>An order permitting an appeal to be heard on typewritten record does not relieve counsel of the duty of submitting a record which is no longer than is necessary to present the questions in controversy.</p> <p>6. Same — Citation of Cases — Official Report.</p> <p>Counsel, in referring in their briefs to decisions of this court, are expected, whenever possible, to make citations to the Michigan Reports, rather than to unofficial publications.</p>

<p>1. Perjury — Proof—Positiveness.</p> <p>On a prosecution for perjury, the jury were warranted in finding that the respondent gave in police court the testimony on which the complaint was predicated, where a stenographer, called as a witness, swore that a certain transcript read in evidence, purporting to set forth such testimony, was made by him from notes taken at the police-court trial, and that he “believed” it to be correct.</p> <p>2. Same — Materiality of Statements.</p> <p>Where, on a trial for rape, a witness had testified that the prosecutrix had contracted a venereal disease from respondent, it was material to show that the witness knew she had such disease before the alleged rape; and hence the witness, if testifying falsely upon this point, was guilty of perjury.</p> <p>3. Criminal Law — Appeal—Conduct of Prosecuting Attorney.</p> <p>The fact that the prosecuting attorney in his argument in a criminal case used language in some particulars open to criticism will not necessitate a reversal of conviction, where any different verdict, under the evidence, would have amounted to a miscarriage of justice.</p>

Ejectment by Mark Norris against Charles W. Hall and others. From a judgment for plaintiff, defendant Hall brings error. This is an action of ejectment, was tried before the court without a jury, a finding of facts and law made, and judgment entered for the plaintiff. Plaintiff claimed title from the government.

, presiding. George Jones was convicted of having burglars’ tools in his possession, and sentenced to imprisonment for five years in the State prison at Marquette.

<p>Exceptions before judgment from Mecosta; Palmer, J.</p> <p>John Locy was convicted of violating the liquor law</p>

<p>Criminal Law — Examination op Witness — Incompetent Statements — Objections—Appeal—Review.</p> <p>Where, in reply to a question as to whether witness had arrested certain persons on a given description, he stated it was that and the fact that they were with respondent, whom he knew to be an ex-convict, and that men traveling with him would not be right, such answer was not objectionable as not responsive, and, in the absence of a motion to strike out the answer on the ground that it introduced incompetent matter, an assignment that the court erred in allowing it to stand cannot be reviewed.</p>

Mandamus by Roscoe D. Dix, auditor general, to compel George Bolt, treasurer of Muskegon county, to pay over a certain sum of money claimed to be due the State.

Cynthia A. Blackburn presented a claim against the estate of George N. Blackburn, deceased, for the amount of certain promissory notes. The claim was allowed in the probate court, and William A. Blackburn appealed to the circuit court. From a judgment for claimant, contestant brings error.

Bill by Saloma S. Paine against Milo A. Boynton and Herman P. Harbeck to quiet title. Prom a decree for defendants on their cross-bills, complainant appeals.

<p>1. Habeas Corpus — Review of Conviction — Evidence.</p> <p>Where jurisdiction is shown, the sufficiency of the evidence to sustain a conviction will not be reviewed on habeas corpus.</p> <p>2. Same — Jurisdiction.</p> <p>Where the judgment of a superior court is collaterally attacked by proceedings in habeas corpus, nothing will be intended to be out of the jurisdiction of such court except that which especially appears to be so.</p> <p>3. Same — Information—Commitment.</p> <p>A prisoner will not be released on habeas corpus because the order of commitment recited his offense as larceny “from a store ” merely, instead of the statutory offense of larceny in a store in the daytime, if the return sets up facts, the consideration of which is not objected to by petitioner, showing that he was informed against and tried for, and convicted of, the statutory offense.</p>

Bill by Albert Porter, Prank H. De Golia, and William Smith against John M. Corbin, Edwin S. Harris, and Roscoe D. Dix, auditor general, to quiet title. From a decree for complainants, defendants Corbin and Harris appeal.

Bill by Carl Eberle and Sophie Eberle against Rufus Heaton to restrain the prosecution of an action of ejectment and for other relief. From a decree for complainants, defendant appeals.

Assumpsit by the United States, for the use and benefit of Edward L. Croll, against Robert M. Jack and Daniel F. Jack, copartners as Robert M. Jack & Son, as principals, and Henry Hayden, James E. Barrett, George H. Porter, Wright H. Calkins, and John E. Kennedy, as sureties, upon a statutory bond. From a judgment for defendants on verdict directed by tbe court, plaintiff brings error.

Bill by John C. Krupp and Anthony Ernest, copartners, against William M. Adams and others, to restrain the sale of certain property under an execution. From a decree for complainants, defendants appeal.

Replevin by Joseph B. Moore, administrator of the estate of J. Wilkie Moore, deceased, against John J. Machen and Elizabeth Machen. From a judgment for defendants, plaintiff brings error.

<p>Error to Wayne; Donovan, J.</p> <p>Assumpsit by the Detroit Pharmacal Company against Lou Burt and Myrtle P. Hurlburt for rent. Prom a judgment for defendants, plaintiff brings error.</p>

<p>Error to Baraga; Haire, J., presiding.</p> <p>Trover by Odile Grenier against John H. Hild, Charles D. Hanchette, and the Northern Michigan Building & Loan Association. From a judgment for plaintiff, defendants bring error.</p>

Case made from St. Joseph; Yaple, J. Ejectment by Charles H. Martin against Christ Hafer and others. There was a judgment for defendants, and plaintiff assigns error.

Case by Katherina Shinglemeyer against Oliver A. Wright for slander and false imprisonment. From a judgment for plaintiff, defendant brings error.

Assumpsit by James W. Tufts against John Verkuyl for goods sold and delivered. From a judgment for defendant, plaintiff brings error. Defendant gave plaintiff an order for a second-hand soda fountain; price $150; $35 to be paid on delivery, and balance to be paid in monthly sums, with interest at 6 per cent, from date of shipment. The fountain was shipped, but would not work. Plaintiff was notified.

Bill by Maude C. Mills, individually and as next friend of Helen C. Mills, an infant, against the Michigan Trust Company, trustee of the estate of Fred D. Mills, deceased, impleaded, etc., to construe the will of said deceased. From a decree for complainant, defendant appeals.

Petition by Arthur E. Fowler against Frank W. Bracy for a writ of assistance. From an order granting the writ as to part of the land only, petitioner appeals.

Assumpsit by Frances M. Scudder against Ward L. Andrus for money had and received. From a judgment for plaintiff, defendant brings error.

Bill by Sidney Sayers against William O’Connor and Roscoe D. Dix, auditor general, to review the decree in a tax proceeding. From a decree dismissing the bill, complainant appeals.

Mandamus by Sidney Sayers to compel Roscoe D. Dix, auditor general, to cancel a tax deed. Relator, wbo has become the owner of the land in dispute by a mortgage-foreclosure sale, filed the petition in this case November 1, 1899, to compel the auditor general to annul and cancel a tax deed on the same land, issued to William O’Connor by the auditor general in 1896 for the taxes of 1894.

Clair; Vance, J. Case by Frederick I. Merryman against Edmund Hall for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by Samuel E. Bigelow against Aaron J. Raynor for the specific performance of a land contract. From a decree for complainant, defendant appeals.

<p>Exceptions before judgment from Livingston; Smith, J.</p> <p>William Lane was convicted of perjury.</p>

, presiding. Petition by J. Davidson Burns against Edgar W. Ford, Mary M. Ford, and Roscoe D. Dix, auditor general, to set aside a tax sale. From a decree dismissing the petition, petitioner appeals.

Maurice E. Casey was convicted of an assault with intent to commit the crime of murder, and sentenced -to imprisonment for 25 years in the State prison at Marquette.

<p>1. Drains — Taxation—Estoppel.</p> <p>One whose land is assessed for benefits in the construction of a drain, who, with full knowledge of the proceedings, takes none of the statutory steps to determine their validity, cannot afterwards set up defects therein to defeat an application by the auditor general for the sale of the land for nonpayment of the tax.</p> <p>2. Same — Cost of Construction — Constitutional Law.</p> <p>The provision of section 1, chap. 6, of the drain law ( 2 Comp. Laws 1897, § 4354), authorizing 10 per cent, of the estimated cost of a drain to be added thereto for contingent expenses, is not unconstitutional.</p>

Thomas G. Sullivan presented a claim against the estate of James G. Ross, deceased. The claim was disallowed by the probate judge, and claimant appealed to the circuit court. From a judgment there for claimant, defendant brings error.

<p>1. Corporations — -Suits Against — Deceased Officer — Testimony of Opposite Party.</p> <p>In view of 3 Comp. Laws 1897, § 10212, which provides.that, in a suit against a corporation, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify to matters which, if true, must have been equally within the knowledge of a deceased officer or agent of the corporation, and not within the knowledge of any surviving officer or agent, it was error, in an action on a policy of insurance, to receive the testimony of plaintiff as to the contents of a letter claimed to have been sent by him to a deceased secretary of defendant company, where the latter’s surviving associates testified that they had never seen such a letter, and that, while it would have been filed if received, a search of the office files failed to reveal it.</p> <p>2. Same.</p> <p>That the surviving associates of a deceased secretary of an insurance company had knowledge of the contents of a certain letter written to him is not to be inferred from the fact that the letter related to official business, so that his possession was the possession of the company.</p> <p>3. Insurance — Breach op Condition — Other Insurance — Waiver.</p> <p>That insured wrote to defendant company giving notice of a loss, and stating that the adjuster of another company “was here today,” to which defendant replied excusing its delay in sending an adjuster, and inquiring the particulars as to the other insurance, does not constitute a waiver of the company’s right to insist that the breach of condition in procuring other insurance without defendant’s consent rendered the policy void.</p> <p>4 Same — Overvaluation—Warranty.</p> <p>Act No. 167, Pub. Acts 1897, which provides that no policy of fire insurance shall be declared void by the insurer for breach of any condition of the policy if the insurer has not been injured by such breach, does not affect the rule which renders a policy, under which the valuation is made a warranty, void if a substantial overvaluation is given, irrespective of the motive of the insured.</p>

, presiding. Case by Monroe L. Scougale against John Sweet for libel. From a judgment for plaintiff, defendant brings error. Plaintiff was sheriff of Shiawassee county, and resided in the city of Corunna. Defendant was a clergyman of the Methodist Episcopal Church, and resided in the city of Owosso. These two cities are about 2f miles apart, and connected by a street railway. About midway between the two is Caledonia Park.

Eva L. Hilton presented a claim against the estate of Benjamin F. Woodman, deceased, for money had and received. The claim was allowed by the commissioners, and the estate appealed to the circuit court. From a' judgment for claimant, the estate brings error.

Assumpsit by Anthony P. Schulte and another against Ronald Kelly for money paid to defendant’s use. From a judgment for plaintiffs, defendant brings error.

Bill by Thomas ■ I. Daniel against Mary M. Palmer,' surviving defendant of herself and William H. Palmer, in aid of execution. From a decree dismissing the bill on demurrer, complainant appeals.

<p>Arbitration and Award — Church Discipline.</p> <p>Where members of a church submit a business difference to a board of arbitrators chosen in accordance with the discipline of the church, without providing that the award shall be final, the one favored in the award will not be permitted, after a ruling by the church authorities that the award is appealable, to contest the ruling, and enforce the award in the courts.</p>

Assumpsit by William A. Pungs against the American Brake-Beam Company for wages. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Case by Catherine Boyle against the city of Saginaw for personal injuries. From a judgment for plaintiff, defendant brings error.

Case by Henry J. Eikhoff against Edward T. Gilbert and others for libel. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

<p>Appeal from Ingham; Person, J.</p> <p>Bill by Samuel L. Kilbourne against Washington G. Wiley, Harry G. Wiley, James B. Judson, Nathan Judson, Frank D. Weller, and Adelia M. Weller to enforce a vendor’s lien. From a decree for complainant, defendants Wileys and Judsons appeal.</p>

<p>1. Libel — Candidates for Office — Newspaper Criticism.</p> <p>While newspapers are allowed a great deal of latitude in the discussion of matters involved in an election, and of the fitness of candidates for office, the law of libel requires them to observe in their statements of fact an honest regard for the truth.</p> <p>2. Same — Provocation—Evidence.</p> <p>In an action for libel, defendant may show that the publication was in reply to previous publications of plaintiff charging defendant with disreputable conduct, and may have the provocative publications admitted in evidence.</p> <p>3. Same — Malice.</p> <p>Where a published article is libelous and untrue, and is not justified by the circumstances of the case, the publication is actionable, irrespective of the question of malice.</p> <p>4. Same — Law of Retort.</p> <p>Where, in an action for libel, defendant claims that his publication was provoked, and was written in self-defense, to make such defense available his retorts must have been necessary to his defense, or such as fairly arose out of the charges made.</p>

Case made from Menominee; Stone, J. Assumpsit by the Menominee Water Company against the city of Menominee for rent of certain fire hydrants. There was a judgment for defendant, and plaintiff assigns error.

<p>Appeal from Jackson; Peck, J.</p> <p>Bill by William A. Richard against James A. Boyd to foreclose a lien. From an order overruling a demurrer to the bill, defendant appeals.</p>

Bill by Marietta Ives against George M. Edison and Abraham May to enjoin the removal of a-certain stairway. From a decree dismissing the bill, complainant appeals.

Bill by Lettie Roberts against George A. Roberts and Hannah Roberts, impleaded with George W. Roberts, to enforce the redélivery of a deed., From a decree dismissing the bill, complainant appeals.

Assumpsit by William W. Hannan against John F. Prentis to recover a commission for procuring a purchaser of real estate. From a judgment 'for plaintiff, defendant brings error.

Case by Jacob W. Stoody against the Detroit, Grand Rapids & Western Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff took passage at St. Louis, Mich., on one of the defendant’s trains, consisting of 20 or 25 cars and a caboose. It was what is called a “mixed train,” carrying both passengers and freight.

<p>Mandamus by Bessie H. Hánchett to compel Roscoe D. Dix, auditor general, to cancel a tax deed.</p>

Bill by the Cook Farm Company, Limited, and others, against the city of Detroit and Thomas M. Lucking, receiver of taxes, to restrain the collection of an assessment for the laying of a water main. From a decree for complainants, defendants appeal.

<p>1. Tax Deeds — Validity—Mandamus to Auditor General — Laches.</p> <p>Mandamus is a discretionary writ, and will not issue to compel the auditor general to cancel an invalid tax deed, where the relator has slept upon his rights for more than two years, in the meantime permitting third persons to acquire interests in the premises.</p> <p>2. Same — Collateral Attack.</p> <p>A tax deed cannot be attacked collaterally (e. g., by application to compel the auditor general to issue a certificate of error) on the ground that the land was held by the State under a former bid at the time of the filing of the auditor general’s petition, and was therefore improperly included therein, or on the ground that unauthorized charges were included in the amount decreed against the land.</p>

Bill by the Cass Farm Company, Limited, and others, against the city of Detroit and others, to restrain the collection of a paving tax. From a decree for complainants, defendants appeal.

Sarah M. Dudley presented for probate the last will and testament of Helen E. Gibson, deceased. ..The will was disallowed, and proponent appealed to the circuit court. From a judgment for proponent, Jasper C. Gates and Lulu F. Gates, legatees under a former will, bring error. This is a contest over the probate of the will of Helen E. Gibson, deceased, executed July 16, 1898. The contestants are legatees under a prior will executed by the deceased March 1, 1895.

Bill by the Detroit Citizens’ Street-Bailway Company, the Detroit Suburban Bailway Company, and the Union Trust Company against the city of Detroit for an injunction, and to remove a cloud from title. From a decree for complainants, defendant appeals.

Assumpsit by Peter Boyer against the Grand Rapids Fire-Insurance Company on a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Garnishment — Liability of Receivers.</p> <p>* 1. Receivers under chapter 300, 3 Comp. Laws 1897, are subject to garnishment.</p> <p>2. Whether the receiver can be garnished for the dividend of one of three joint claimants will depend upon the proofs.</p>

<p>Mandamus — Boards op Supervisors — Rebuilding Bridge.</p> <p>Where there is a probability that the boards of supervisors of adjoining counties, charged with the duty of rebuilding a bridge across a navigable stream between such counties, will speedily agree upon a site, mandamus will not issue, even after a long delay, to compel the rebuilding of the bridge in its former location; but, in denying the writ, leave will be granted to relator to renew the application if the bridge is not built within a reasonable time.</p>

<p>Mandamus — Quashing Indictment.</p> <p>Mandamus will not lie to compel the circuit judge to quash an indictment, in advance of a final determination of the case.</p>

Addison Allen presented a claim against the estate of William Fields, deceased, for services rendered- the latter during his lifetime. The claim was allowed in part by the commissioners, and Seth Lathrop, executor of the last will and testament of the deceased, appealed to the circuit court. From a judgment for claimant, the executor brings error.

<p>Public Works — Contractors and Subcontractors — Claim for Personal Injury — Settlement—Mandamus to City.</p> <p>Where, in an action against a paving contractor by a subcontractor, it was determined that the plaintiff was not entitled |o recover a balance due upon his subcontract, represented by a certified cheek deposited with the city by the defendant upon payment by it of the contract price, pending the settlement of a citizen’s claim against the city for personal injuries sustained by reason of the negligence of the subcontractor, such adjudication was sufficient ground for the court’s declining to issue a mandamus to compel the city, after its liability to the citizen had been discharged, and pending its suit against the contractor for reimbursement, to turn over the check to the subcontractor.</p>

<p>Mandamus by Fred H. Ruggles and others to compel Fred J. Russell, circuit judge of Muskegon county, to vacate an order quashing certain log-lien proceedings.</p> <p>Relators, copartners, filed a claim of lien under Act No. 229, Pub. Acts 1887 (3 Comp. Laws 1897, §§ 10756-10770), upon certain lumber and railroad ties, which they allege they manufactured for Walter Snow and William S. Clark under a contract which is attached to the return. An attachment was issued under section 10760 for the enforcement of the lien. On motion of the defendants, the attachment proceedings were quashed.</p>

Assumpsit by Bert Collins and William Olney against Arthur Shaw and Bert Holmes for the breach of a contract to buy sheep. From a judgment for plaintiffs, defendants bring error. Plaintiffs were the owners of a large flock of sheep and lambs, which they were feeding on the farm of plaintiff Olney. The defendants, drovers, purchased them. All parties agreed that the price was $5.10 per hundredweight, with a bonus of $5.

<p>Appeal from Marquette; Stone, J.</p> <p>Bill by Esther Shaw against George W. Shaw to set aside a deed. From a decree for complainant, defendant appeals.</p>

Bill by Alfred Gaines against David W. Simons, William S. Green, John G. Hawley, and Harry F. Chipman to vacate a decree of foreclosure. From a decree dism iss ing the bill, complainant appeals.

<p>Appeal from Wayne; Waite, J.</p> <p>Bill by Mary H. Van Der Beck against George A. Van Der Beck for a divorce. From a decree for complainant, defendant appeals.</p>

■ 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.

<p>Certiorari to Gogebic; Haire, J.</p> <p>Trespass by Julius Simon against Lduis Spiro for assault and battery. Plaintiff had judgment in justice’s court, and defendant took a special appeal to the circuit. Prom a judgment reversing that of the justice, plaintiff brings certiorari.</p> <p>This case was commenced in justice’s court. Plaintiff filed an affidavit charging the defendant with assault and battery, and alleging damages to himself therefrom. Defendant was arrested, brought before the justice, and the affidavit read to him. He pleaded not guilty, and asked for an adjournment, which was granted. On the adjournment day both parties appeared, and went to trial upon the merits, without the filing of a declaration. A judgment of $100 was rendered in favor of plaintiff. Defendant thereupon took a special appeal to the circuit court, alleging want of jurisdiction in the justice’s court to try the case, because no declaration was filed. The circuit judge sustained the objection, and reversed the judgment. The case is now before us upon the writ of certiorari.</p>

<p>1. Intoxicating Liquors — Looal Option — Sale of Cider — Preserved Sample — Permitting Jury to Taste.</p> <p>Where, in a prosecution for selling fermented liquor contrary to the local-option law,- a sample of the cider alleged to have been sold, which had been preserved in a bottle by a witness for the prosecution, was produced at the trial, the witness testifying that it was in about the same condition as when sold, it was not error to admit the same in evidence, and to permit the jury to taste it.</p> <p>2. Same —Expert Witnesses — Qualifications — Province of Court.</p> <p>It is the court’s province to determine the qualifications of nonprofessional witnesses to express an opinion; and, where a witness is offered to testify as to the process of fermentation in cider, it is proper to require him to state his experience and observation, in order to enable the court to judge of the admissibility of his opinion.</p> <p>3. Same — Stage of Fermentation — Immaterial Inquiry.</p> <p>In a prosecution for selling a fermented liquor, i. e., cider, contrary to the local-option law, it is an immaterial inquiry whether or not the cider had reached a stage of fermentation which rendered it intoxicating.</p>

Mandamus by the board of State tax commissioners to compel the board of assessors of the city of Grand Rapids to deliver the assessment rolls of said city to relator for review.

<p>Creditor’s Bill — Degree—Appeal.</p> <p>A decree for complainant on a creditor’s bill was affirmed.</p>

Bill by Maria T. Hunt and others against Charles J. Hunt and the Union Trust Company, executor of the last will and testament of Hervey C. Parke, deceased, for the appointment of a trustee under the will of Maria E. Hunt, deceased. From a decree terminating the trust, and declaring defendant Hunt to be the owner of the trust property in fee, complainants appeal. Maria E. Hunt died testate.

<p>Error to Wayne; Carpenter-, J.</p> <p>Assumpsit by Thomas Beath against Louis C. Chapoton and Lewis C. Watson upon a promissory note. From a judgment for plaintiff, defendants bring error.</p>

Quo warranto proceedings by Allan H. Frazer, prosecuting attorney of Wayne county, on the relation of Fred E. De Gaw, against Thomas W. Fitzsimmons, to fry the title to the office of justice of the peace. From a judgment for respondent, relator brings error.

<p>Error to Bay; Maxwell, J.</p> <p>John O’Hare was convicted of burglary, and sentenced to imprisonment for four years in the State prison at Jackson.</p>

Certiorari by Robert Beutel to review the action of Andrew C. Maxwell, circuit judge of Bay county, in vacating a portion of a street. This case is brought to this court by the writ of certiorari to review the proceedings of the circuit court for the county of Bay, vacating a portion of a plat known as “F. W. Wheeler & Company’s Third Addition to West Bay City,” whereby part of Washington street was vacated. The petition was made by the West Bay City Sugar Company.

Assumpsit by James E. McDermott, receiver of the Hillsborough Manufacturing Company, against Andrew T. Squier, upon a subscription to the capital stock of said corporation. From a judgment for defendant, plaintiff brings error.

Exceptions before judgment from Cheboygan; Adams, J. Prank Morgan was convicted of murder in the second degree. Respondent was charged with the murder of one Don Gillis on the 29th day of April. He was convicted of murder in the second degree. He was at work as a farm laborer for one Mrs. Bowen. Her husband had left her, and was living in a house upon an adjoining 40 acres. Mrs. Bowen controlled the house and farm where she lived.

<p>Error to Kent; Adsit, J.</p> <p>Case by Elorian D. Shippey against the Grand Rapids Leather Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

<p>I. Criminal Law — Information—Locus of Offense — Jurisdiction.</p> <p>An information which charges an offense as having been committed “at, to wit,” a township, county, and State before mentioned, is sufficient to give the circuit court of the county jurisdiction.</p> <p>3. Same — Larceny of Cattle — Cross-Examination of Witnesses —Credibility.</p> <p>Eefusal to-permit the defense, on a prosecution for stealing cattle, to show, by cross-examination of a material witness for the people, that he had proposed to others to steal cattle and divide the profits, was reversible error, since it affected his credibility."</p> <p>3. Same — Bias of Witness.</p> <p>On a prosecution for stealing cattle, it was reversible error to exclude evidence that one of the respondents had accused the people’s witness of the larceny of an animal stolen from said respondent, offered for the purpose of showing that the witness was biased against them.</p> <p>4. Witnesses — Veracity—Eebuttal.</p> <p>Where a witness’ reputation for truth and veracity is attacked evidence of fair dealing in business transactions with in dividuals is not competent as sustaining testimony.</p>

<p>Trusts — Insurance Policy —Beneficiary—Trustee—Duty to Account — Validity of Trust — Waiver by Company.</p> <p>*M. was a member of the Ancient Order of United Workmen. His beneficiary, at his death, was entitled to receive $2,000. His wife and daughter, his first beneficiaries, having died, he desired to make C., his son-in-law, his beneficiary. This was prohibited by the articles of association. He thereupon made his niece his beneficiary, with a written agreement, signed by her, that upon receipt of the fund she would pay it over to C. The association issued a draft to the niece with full knowledge of the trust upon which she had agreed to receive it. Upon receipt of the draft she refused to transfer it to C., or to pay him the money. Held, that she was bound to carry out the trust, and that the association is the only party in position to contest the legality of the transaction.</p>

Trespass quare clausum fregit by May B. Carter against Burritt S. Bedortba. From a judgment for plaintiff for nominal damages only, she brings error. Plaintiff and defendant own and live upon farms about 60 rods apart. No trouble had come between them until that out of which came this suit. Some families of Jews lived near by, Whose children passed plaintiff’s house on their way to and from school. She had a son 17 years old.

Owen Young presented a claim against the estate of Dorinda N. Shepard, deceased, upon a promissory note. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. Erom a judgment for claimant for less than the amount claimed, he brings error. Plaintiff’s claim is based upon a promissory note for $8,000, dated March 4,1895, payable to Alice G. Lockerby on or before October 15, 1898.

Bill by Loyde L. Ferris, administratrix of the estate of George W. Ferris, deceased, against Frank E. Snow, Fremont Woodruff, and William A. Jackson, for the specific performance of a land contract. From an order overruling a demurrer to the bill, defendants appeal.

Amy Johnston Morton appealed from an order of the probate court allowing the final account of William Johnston, Jr., as administrator of the estate of William Johnston, Sr., deceased. From a judgment for contestant, the administrator brings error.

<p>Error to Saginaw; Snow, J.</p> <p>Trover by Ernest Feige against Wellington R. Burt and the Home National Bank of Saginaw. From a judgment for plaintiff, defendants bring error.</p>

Cross-appeals from St. Clair; Atkinson, J. Bill by George Ruloff against Ezra Hazen to restrain the foreclosure of a mortgage and for an accounting. From the decree rendered, both parties appeal.

J. Assumpsit by Swan Peterson against the People’s Building, Loan & Saving Association to recover money paid on a stock subscription. From a judgment for plaintiff, defendant brings error.

<p>Appeal from Sanilac; Beach, J.</p> <p>Bill by Francis Loviolette against N. A. Butler and others to set aside certain deeds. From a decree dismissing the bill, complainant appeals.</p>

Bill by James Nolan, Jr., and John Nolan against James Nolan, Sr., to remove a cloud from title. From a decree dismissing the bill, complainants appeal.

<p>Error to Washtenaw; Kinne, J.</p> <p>Case by John Moran against the Detroit, Ypsilanti & Ann Arbor Railway for injuries to personal property. From a judgment for plaintiff, defendant brings error.</p>

Bill by Millie C. Porter and others against George H. Long, executor of the last will and testament of Arthur B. Long, deceased, and surviving partner of the firm of A. B. Long & Son, and Horace J. Culbertson, trustee under such will, for an accounting. From the decree rendered, all parties appeal.

Daniel W. Bates, administrator of the estate of Seymour Kuney, deceased, presented a claim against the estate of Christian Kuney, deceased, for services rendered. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for claimant, defendant brings error.

Clair; Vance, J. Case by James W. Benedict, executor of the last will and testament of George P. Burgess, deceased, against the city of Port Huron, for negligently causing the death of plaintiff’s testate. From a judgment for defendant, plaintiff brings error.

<p>Error to St. Joseph; Yaple, J.</p> <p>Case by Charles S. Hovey against the Michigan Telephone Company for injuries to a horse. From a judgment for plaintiff, defendant brings error.</p>

Case by William P. Hathaway against the Detroit, Toledo & Milwaukee Railway Company for the killing of cattle. From a judgment for plaintiff, defendant brings error.

Edward Ecarius was convicted of murder in the first degree, and sentenced to imprisonment for life in the State prison at Jackson.

<p>1. Deeds — Cancellation—Evidence.</p> <p>A conveyance by an aged widow to her son of all her property, reserving only a life estate, without any written agreement by the son to pay taxes and insurance, to keep the premises in repair, or to maintain and support the grantor, made in reliance on the son’s assurances as to what would be for her best interests, will be set aside in equity, where the grantee repudiates all his promises and obligations, and makes the home so unpleasant that the grantor is unable to remain therein.</p> <p>2. Same — Consideration.</p> <p>Where the only consideration for a deed from an aged widow to her son and grandchildren was certain obligations assumed by the son, which obligations he wholly fails to perform, the grandchildren cannot complain of a decree setting aside the deed.</p> <p>3. Same — Parties—Nonjoinder—Failure to Demur.</p> <p>Where a bill to set aside a conveyance to defendant of land in possession of complainant states that defendant is a married man, but the wife is not made a party, and no demurrer for her nonjoinder is filed, an objection thereto cannot be raised on the hearing.</p>

<p>1. Common-Law Marriage — Evidence.</p> <p>Evidence that plaintiff lived with decedent for many years as his wife, and that he spoke of and introduced her as such, was sufficient to go to the jury on the issue of a common-law marriage between them, although it appeared that they had at one time lived together in a state of concubinage, that no marriage ceremony was ever performed, that she was known by, and received and executed conveyances in, her maiden name, and that he executed conveyances describing himself as a bachelor. Grant, J., dissenting.</p> <p>2. Same.</p> <p>An agreement to live together as husband and wife, though intended to be carried out, unless acted on by the parties actually living together and cohabiting as husband and wife, is not sufficient to constitute a common-law marriage.</p> <p>3. Same — Estate of Alleged Husband — Ejectment by Wife-Plaintiff as Witness — Competency.</p> <p>An action of ejectment by one claiming as the common-law wife of a decedent, against his heirs and the tenants of his ad ministrator, all of whom deny the marriage, is within 3 Comp Laws 1897, § 10212, forbidding the opposite party, in a suit defended by the heirs of a deceased person, from testifying to matters which, if true, must have been equally within the knowledge of decedent.</p> <p>4. Same — Attorney and Client — Privileged Communications.</p> <p>Where the marriage of plaintiff with a deceased person is in issue, an attorney cannot testify to statements by the deceased concerning his relations with plaintiff, made in the course of a consultation in regard to making provision for her.</p> <p>5. Trial — Examination of Witnesses — Testimony on Former Hearing — Copies.</p> <p>The practice pursued at the trial of permitting counsel for plaintiff to hand to plaintiff’s witnesses, without any apparent necessity or reason, a copy of their testimony as given on a former hearing, and thereafter to direct their attention to the subject-matter covered by the copies, was disapproved.</p> <p>6. Same — Stipulation—Questions Foreclosed.</p> <p>Defendants in ejectment cannot be heard to object that the lands described in the declaration are in the possession of several different persons, where an attorney for defendants agreed before commencement of suit that the question of possession would not be raised.</p>

<p>Error to Lenawee; Chester, J.</p> <p>Case by Hiram Mann against the Lake Shore & Michigan Southern Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by the People of the State of Michigan against Ernest L. Shurly to recover the statutory penalty for an alleged violation of Act No. 158, Pub. Acts 1895, relating to the reporting of contagious diseases. Prom a judgment for defendant on verdict directed by the court, the people bring error.

Petition by George A. Renaud and others against the State court of mediation and arbitration for writs of mandamus and prohibition to vacate an order .granting a rehearing, and to restrain further proceedings by respondent.

Case by Morgan Cloney against the city of Kalamazoo for personal injuries. Prom a judgment for plaintiff, defendant brings error.

Mandamus by the People of the State of Michigan, on the relation of George M. Valentine, prosecuting attorney, to compel Orville W. Coolidge, circuit judge of Berrien county, to vacate an order quashing an information. One William B. Thompson was arrested, charged with a violation of Act No. 851 of the Public Acts of 1899, because he had filed no bond and received no license to solicit farm produce for a firm in Chicago.

Bill by William P. Belden against R. Amelia Black-man, executrix of the last will and testament of Ezekiel Jewett, deceased, and George W. Barker, to obtain satisfaction of a judgment. From a decree for complainant, defendant Blackman appeals.

Case by Edward E. Doty against Charles J. Hurd for malicious prosecution and false imprisonment. From- a judgment for plaintiff, defendant brings error.

<p>1. Constitutional Law — Beet-Sugar Bounty — Taxation for Private Purpose.</p> <p>Act No. 48, Pub. Acts 1897, providing for the payment of certain bounties to manufacturers in the State of sugar from beets grown in the State, is unconstitutional, as authorizing taxation for a private purpose.</p> <p>2. Same.</p> <p>An unconstitutional statute is of no more saving effect to justify action under it than as though it had never been enacted; therefore, persons who engaged in the manufacture óf beet sugar in this State in reliance on the provisions of Act No. 48, Pub. Acts 1897, appropriating a certain sum for the payment of bounties, and declaring the excess, if any, payable out of the general fund, which legislation was wholly unconstitutional, have no claim against the State by virtue of Act No. 263, Pub. Acts 1899, by which the legislature sought to provide a tax to meet appropriations not otherwise provided for, intending, it is claimed, to recognize such bounties as earned.</p>

Clair; Whipple, J, Mandamus by the board of State tax commissioners to compel Irwin Cady, comptroller, of the city of Port Huron, to deliver the assessment roll of said city to relator for review. From-an order denying the writ, relator brings certiorari.

Mandamus by George F. Gillam, trustee, to compel Charles W. Foster, circuit court commissioner of Ingham county, to issue a deed on foreclosure omitting the six-months redemption clause provided for by Act No. 200, Pub. Acts 1899. From an order denying the writ, relator brings certiorari. The decree of foreclosure in this case was entered in the circuit court December 13, 18Ó8, and contained the usual provisions for the sale of property.

Bill by James F. Lemon against Charles L. Randall to restrain defendant from practicing medicine, in violation of his agreement. From a decree for complainant, defendant appeals.

Assumpsit by Milbert F. Price and Willard F. Main, copartners as the Equitable Manufacturing Company, against William B. Marthen, for goods sold and delivered. From a judgment for defendant, plaintiffs bring error.

<p>1. Divorce — Extreme Cruelty — Charos of Insanity.</p> <p>Where the complainant vas intensely jealous of her husband without just cause, his application to have her adjudged insane, made in the bona fide belief that her statements attributing improper conduct to him were induced by an unsettled mind, was not such cruelty as would entitle her to a divorce.</p> <p>2. Same — Appeal—Costs.</p> <p>On affirmance of a decree denying a wife a divorce, the Supreme Court, being convinced of the good faith of the appeal, allowed her her taxable costs.</p>

Bill by George Boyce and Nancy Boyce, survivors of themselves and William Boyce, deceased, against Jonathan Boyce and Isabella J. Boyce, for a partition of certain lands and for an accounting. From the decree rendered, complainants appeal. In 1880, complainant George, his father and brother, and the defendant Jonathan invested $62,000 in purchasing the entire of four sections, and nearly all of another section, of pine lands.