Volume 125 — Michigan Reports

<p>Error to Genesee; Wisner, J.</p> <p>William Conrad and others were convicted of violating the fish laws.</p>

Case by Henry H. Murray against the village of Grass Lake for flooding plaintiff’s land. From a judgment for defendant on demurrer to the declaration, plaintiff brings error.

Mandamus by Ered T. Moran and Worthy L. Churchill to compel George S. Hosmer, circuit judge of Wayne county, to enter .an order removing a receiver. Relators are owners of a judgment for $14,170 against the Detroit Driving Club, a corporation organized under the laws of this State. Execution upon this judgment was levied November 23, 1899, on the race track and grounds of said club, in tbe city of Detroit.

<p>Drains — Insufficient Outlet — Blooding Lands — Injunction.</p> <p>While a drain commissioner who constructs a drain with an insufficient outlet may incur a personal liability for the consequent flooding of private land, it is not necessary that one who sees that a proposed outlet across his land is bound to be inadequate should abide his right of action against the commissioner, but he may proceed at once to have the use of such outlet enjoined.</p>

Case by Jacob G. Mertz and John H. Heppner, copartners as Mertz & Heppner, against the Detroit Electric Railway, for damages caused by a collision with a trolley car. From a judgment for plaintiffs, defendant brings error.

Cordelia E. Bullock presented a claim against the estate of Charlotte 'Tompkins, deceased, based upon a contract of novation. The claim was allowed by the commissioners, and an appeal taken to the circuit court. From a judgment for claimant, defendant brings error.

<p>Mandamus by James S. Crosby to compel Frank D. M. Davis, circuit judge of Montcalm county, to vacate an order dismissing an appeal.</p>

Mandamus by Adam Lachman to compel Philip Padgham, circuit judge of Ottawa county, to vacate an order setting aside the action of a circuit court commissioner in indorsing upon a deed on foreclosure sale the redemption clause provided for by Act No. 200, Pub. Acts 1899.

■ Petition by Tubal C. Owen, residuary legatee under the last will and testament of Eber B. Ward, deceased, for the appointment of an administrator de bonis non. The petition was denied in probate court, and petitioner appealed to the circuit court. From a judgment affirming the order of the probate court, petitioner brings error. On motion of Orrin W. Potter, former executor, to dismiss the writ.

Bill by Richard F. Conover, executor of the last will and testament of Alida E. Fitzhugh, deceased, and Cornelia F. Conover, against John C. Hewitt, trustee, Anne E. Fitzhugh, Anne D. Wright, and Edward F. Fitzhugh, to construe a trust deed and to terminate the trust. From a decree for complainants, defendant Wright appeals.

Assumpsit by Adelena Bretzlaff against the Evangelical Lutheran St. John’s Sick-Benefit Society to recover a death benefit. Defendant prevailed in justice’s court, and plaintiff removed the cause to the circuit court by certiorari. From a judgment for plaintiff, defendant brings error.

Bill by Catherine A. Abrey against Harry L. Schellenberg, George T. Abrey, and others to foreclose a land contract. From a decree for complainant for less than the amount claimed, she appeals.

<p>Certiorari to Cass; Carr, J.</p> <p>Ellen J. Tice appealed from an order of the probate court construing the last will and testament of William H. Tice, deceased. John Bilderback, administrator with the will annexed, appeared for the estate. The order was sustained in the circuit, and George H. Murdoch, Jr., administrator of the estate of said Ellen J. Tice, brings certiorari.</p> <p>One William H. Tice died testate. His will reads as follows:</p> <p>“1. I give and'bequeath unto my half-brother, Talmage Tice, the following-described piece and parcel of land, described as follows: The west one-half of the southeast fr. i in section thirty, town five, range sixteen west; all being in Cass county and State of Michigan.</p> <p>• “2. I give and bequeath unto my sister Susan Gilbert the following-described piece and parcel of land, described as follows: The east one-half of the southeast fr. ¿ in section thirty, town five south, range sixteen west; all being in Cass county and State of Michigan.</p> <p>“3. I give and bequeath unto my wife, Ellen Tice, all the statute of the State of Michigan allows a widow.</p> <p>“4. I give and bequeath unto my brother Myron Tice, and my sisters Mary Armstrong and Almira Schermerhorn, all the remainder of my estate, both real and personal, to be divided equal after my wife receives what the statute of the State of Michigan allows a widow.”</p> <p>Tice died without issue. The widow elected to take under the will. The court below held that Talmage Tice and Mrs. Susan Gilbert took the entirety of the lands devised to them, free and clear of all debts, subject to the widow’s right of dower, and that Myron Tice, Mary Armstrong, and Almira Schermerhorn took the residue of all the real estate, subject to the dower interest of said widow, and further subject to all the debts and expenses of administration.</p>

, presiding. Assumpsit by the county of Montmorency against Charles H. Wiltse, principal, and William B. Comstock, surety, upon a county treasurer’s bond. From a judgment for plaintiff, defendants bring error. Defendant Wiltse was county treasurer for the county of Montmorency for the years 1891 and 1892. The board of supervisors made settlements with him in October, 1891, 1892, and January 4, 1893.

Mandamus by Catherine McNab to compel the common council of the city of Bay City to audit and allow a claim for services as police matron. From an order granting the writ, respondent brings certiorari.

<p>Error to Lenawee; Chester, J.</p> <p>Garnishment proceedings by the Belding-Hall Manufacturing Company against Joseph H. Smith, as garnishee of Augustus W. Slayton. From a judgment for defendant, plaintiff brings error.</p>

Replevin by Max Gottesman and Jacob Schnabel, co-partners as Gottesman & Schnabel, against Harry F. Chipman, sheriff, Daniel J. Spinning, constable, and Archie H. Jackson and Joseph F. Jacobs, copartners as Jackson & Jacobs. From a judgment for defendants on verdict directed by the court, plaintiffs bring error.

Replevin by John W. Dages and William H. Andrews, survivors of themselves and John Dages, deceased, co-partners as Dages, Andrews & Co., against Forest B. Brake. From an order quashing the writ, plaintiffs bring error.

Assumpsit by Lorenzo D. Pillen against Peter Erickson for goods sold and delivered and labor performed. From a judgment for plaintiff, defendant brings error.'

Assumpsit by James H. Darling and Frank H. Smith, copartners as Darling & Smith, against Robert W. Rutherford and Ed. Misner, copartners as Rutherford & Misner, for goods sold and delivered. From a judgment for plaintiffs, defendants bring error.

Assumpsit by John H. Hamilton against the Park & McKay Company to recover royalties under a contract for the manufacture and sale of a certain device. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

William E. Conrad and William Conrad, copartners as Conrad Bros., presented a claim against the estate of Eranklin M. Manning, deceased, upon a promissory note. The claim was allowed by the commissioners, and Sarah E. Manning and Belle Constantine, legatees under the will of decedent, appealed to the circuit court. From a judgment for claimants, contestants bring error.

<p>Error to Crawford; Sharpe, J.</p> <p>Assumpsit by Lewis Gregivere against William S. Ohalker and others. From a judgment for defendants, plaintiff brings error.</p> <p>This suit is brought against defendant Ohalker, late sheriff of Crawford county, and the other defendants as his bondsmen, to recover damages for the failure to return an execution in accordance with section 890, 1 Oomp. Laws 1897. Plaintiff introduced as a witness the justice of the peace, proved his docket and the entries thereon, and introduced it in evidence. The last entry upon the docket was, “Execution issued May 11, 1898, and delivered to Wm. S. Ohalker, sheriff of said county of Crawford, Michigan.” The justice then testified, upon direct examination, that the execution was never returned to him. • On cross-examination he testified that, after the time for the return of the execution had expired, he found a paper in one of his drawers which looked like the execution, but that he never opened it. At the request of counsel for the defendants, the justice retired to his office, and produced the paper, and identified it as the execution issued in the case, with the return of the officer indorsed thereon, showing that it was returned within the time required by law. The return was nulla bona. Defendant Ohalker was then permitted to testify that he made diligent search to find property belonging to the defendant, but was unable to do so, and that he made due return of the execution. Judgment and verdict were for the defendants;</p>

Bill by Theodore Miller and William H. Fernwood against Paul E. Dunham, Alice A. Dunham, William L. B. Dunham, and others, in aid of execution. From a decree dismissing the bill, complainants appeal.

Assumpsit by George D. Clark and William L. Cowles, copartners as Clark & Cowles, against Alvin W. Need-ham, John A. Gray, and William A. Gray, copartners as the Crescent Machine Company, for rent. From a judgment for defendants on verdict directed by the court, plaintiffs bring error. Plaintiffs are copartners carrying on a manufacturing business in Connecticut.

<p>Voluntary Associations — Actions Against Members — Res Judicata.</p> <p>* 1. The statute (sections 10025, 10026, 3 Comp. Laws 1897) providing for the bringing of suits against unincorporated voluntary associations does not abrogate the right to sue members of the association, under Clark v. O’Rourke, 111 Mich. 108.</p> <p>2. In a suit to recover rent due upon a lease, questions litigated in a former suit upon the same lease are res adjudicata.</p>

Assumpsit by Jacob F. Teicbner against the Pope Manufacturing Company upon a contract of employment. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Mandamus by William Sullivan to compel Matthew G. Bailey, mayor of the city of Mackinac Island., to execute certain contracts.

Case by May Rosa. Ada Derham against William Derham for alienating the affections of plaintiff’s husband. From a judgment for plaintiff, defendant brings error.

Petition by George F. Brown and A. B. Cullen against Robert Napper and John E. Fitzpatrick for a writ of assistance. From an order granting the writ, respondents appeal.

Assumpsit by Thomas Sherk against John T. Holmes and George A. Beaton for the nonperformance of a contract. From a judgment for plaintiff, defendants bring error.

Bill by Herman Besser against John E. Wright and Harry Wark to enjoin the cutting and removal of certain timber. From a decree for complainant, defendants appeal.

Appeals from Ogemaw; Sharpe, J. Petition by Michael Corrigan against Eugene Hinkley and Roscoe D. Dix, auditor general, and by Patrick Corrigan against Erank Davis and the auditor general, to vacate the decree in a tax proceeding. From decrees dismissing the petitions, petitioners appeal.

Mandamus by Joseph Patterson, prosecuting attorney, to compel the board of review of Grayling township to restore to the assessment roll a law library stricken from the roll as exempt. From an order granting the writ, respondent brings certiorari.

Mandamus by the board of State tax commissioners to compel John H. Quinn, assessor of the city of Ishpeming, to spread the taxes upon his roll according to the increased valuations fixed by said board.

Case by Luther L. James against Zenas Sweet and others for malicious prosecution. From a judgment for defendants on verdict directed by the court, plaintiff brings error.' Plaintiff sued the defendants in an action for malicious prosecution. The court directed a verdict for the defendants.

Bill by Eleanor C. Hunt and others against Frank Rabitoay and others for a partition. From a decree dismissing the bill, complainants appeal. Complainants seek partition of a part of private land claim 121, situated in the township of Ecorse, Wayne county, containing 55 acres. The entire claim contains 250 acres, was a long, narrow strip fronting on the Detroit river, and was divided by a stream, between which and the river were about 60 acres.

Assumpsit by Ben E. West and Judson C. West, copartners as B. E. West & Co., against Charles J. Bechtel, for the breach of a contract to deliver wood. From a judgment for plaintiffs on verdict directed by the court, defendant brings error.

Trespass quare clausum fregit by Edith Stretch against the village of Cassopolis. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Trespass quare clausum fregit by Fanny B. Miller against the Detroit, Ypsilanti & Ann Arbor Railway. From a judgment for plaintiff, defendant brings error; Plaintiff recovered a judgment in the court below of 1275 for the destruction of 11 shade trees in front of her property, dug up and removed by the defendant in the construction of its railway. Plaintiff’s land is situated in the township of Ypsilanti.

Bill by the Hannah & Lay Mercantile Company against 5. E. Hartzell, Charles H. Bostick, and others to enforce a mechanic’s lien. From a decree for complainant, defendant Bostick appeals.

Bill by the J. E. Greilick Company against S. E. Hartzell, Charles H. Bostick, and others to enforce a mechanic’s lien. From a decree for complainant, defendant Bostick appeals.

<p>Appeals from Probate Court — Laches—Excuse.</p> <p>An application to the circuit court for permission to appeal, after the lapse of the 60 days prescribed by statute, from an order of the probate court allowing an executor’s final account, which sets out merely that the petitioner’s attorney never advised her that certain items of the account were erroneously allowed, and that she, being ignorant of her legal rights, failed to appeal, does not disclose a situation within 1 Comp. Laws 1897, § 674, which authorizes the circuit judge to allow an appeal where it appears that petitioner, “from any cause, without default on his part,” omitted to appeal seasonably.</p>

<p>On rehearing of case reported in 120 Mich. 142 (79 N. W. 1).</p>

Case by Charles O. Smedley against Charles E. Soule and others for libel. From a judgment for plaintiff, defendants bring error. Plaintiff is an attorney at law residing in the city of Grand Rapids. He was employed by the mayor of the city of Grand Haven, on behalf of the city, in a case which involved the veto power of the mayor. The circumstances of that litigation are stated in Baar v. Kirby, 118 Mich. 392 (76 N. W. 754).

<p>Error to Kalamazoo; Buck, J.</p> <p>Replevin by Richard C. Hoffman and John T. Hill, copartners as R. C. Hoffman & Co., against the Lake Shore & Michigan Southern Railway Company. From a judgment for plaintiffs, defendant brings error.</p>

<p>1. Deeds — Validity—Acknowledgment.</p> <p>A deed which, is good at common law is valid as between the parties, and as against the grantor’s heirs or devisees, though the notary did not sign the acknowledgment till after the grantor’s death.</p> <p>2. Same — Omission of Revenue Stamp — Intent — Burden of Proof.</p> <p>One who attacks the validity of a deed because of the absence of the required revenue stamp has the burden of proving that the omission was with fraudulent intent.2</p>

Assumpsit by Warren D. Leonardson against school district No. 3 of Troy township for services rendered. Erom a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by John Little, John R. Little, and Thomas Little, copartners as Little & Sons, against Thomas W. Barry and Thomas Kenny, copartners as Barry & Kenny, for the breach of a lumbering contract. Erom a judgment for plaintiffs, defendants bring error.

<p>Deeds — Recital of Consideration — Parol Evidence.</p> <p>Though a deed recites an adequate consideration and its receipt, the grantor therein may, under a bill to set the deed aside, introduce parol evidence to deny consideration in toto.</p>

Bill by John Daschke and another against Harry L. Schellenberg and others to enforce a mechanic’s lien. From an order overruling a demurrer to the bill, defendant Schellenberg appeals.

Error -to Clinton; Daboll, J. Assumpsit by Henry E. Walbridge, administrator of the estate of Henry Walbridge, deceased, against Elizabeth Tuller, upon a promissory note and for professional services rendered by decedent. Erom a judgment for plaintiff, defendant brings error.

<p>1. Master and Servant — Injury to Employe — Defective Appliance.</p> <p>Negligence on the part of a mill owner in causing the death of an employé, who was killed by being thrown onto a saw, which it was his duty to keep clear of slabs and other obstructions, cannot be predicated upon the fact that a wire screen, through which the sawyer, while operating the saw, kept watch of the saw clearer, became at times so clogged with sawdust as to obstruct his view, where there is nothing to show that it was so clogged on the occasion of the accident.</p> <p>3. Same — Assumption op Risk.</p> <p>A saw clearer who continues at work with knowledge that a screen separating him from the sawyer is frequently clogged with sawdust assumes the risk of injury arising from the inability of the sawyer to' see him through such screen.</p> <p>3. Same — Selection op Employés — Due Care.</p> <p>A mill owner is not chargeable with want of due care in the selection of a head sawyer because he fills the position by promotion from the next lower grade, instead of choosing a person of experience in the particular place.</p> <p>4. Same — Carelessness op Employé — Duty to Dismiss.</p> <p>A mill owner is not to be charged with negligence in failing to discharge a head sawyer upon proof merely that he occasionally conversed in a light, vein with fellow employés, thereby indicating that his attention was not centered upon his work.</p>

Petition by Nellie Post Judd against George E. Judd to punish defendant as for contempt for refusing to pay alimony. Prom a decree dismissing the petition, petitioner appeals.

<p>Appeal from Wayne; Waite, J.</p> <p>Bill by Mira J. Smith against Smith, Sturgeon & Company, Martin S. Smith, 3d, Frank G. Smith, Jr., Charles F. Hammond and Charles E. Dorr, trustees, William A. Sturgeon, Charles E. Dorr, Charles W. Hayes, Edward Holbrook, and W. A. Sturgeon & Company, to set aside a transfer of corporate assets. From a decree dismissing the bill, complainant appeals.</p>

Case by Sarah L. Hilts, administratrix of the. estate of Frederick Hilts, deceased, against William A. Foote, receiver of the Jackson Street-Railway Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error. East Main and Perrine streets in the city of Jackson cross each other at right angles; the former running east and west, the latter north and south.

<p>Appeal — Assignments op Error — Review.</p> <p>* 1. Where the court finds no error upon the record, and the points raised would be of no benefit to the profession in the trial of future cases, held, they will not be discussed.</p> <p>2. An assignment that the court erred in refusing 14 requests to charge is too general, and will not be considered.</p>

, presiding. Case by William Thompson, administrator of the estate of Samuel T. Thompson, deceased, against the Citizens’ Street-Railway Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant, plaintiff brings error. The defendant operates in the city of Kalamazoo an electric street railway, with a double track through Main street, with the center-pole construction.

Case by William J. Sax against the Detroit, Grand Haven & Milwaukee Railway Company for the breach of contract of employment. From a judgment for plaintiff, defendant brings error.

<p>Appeal from Alcona; Simpson, J.</p> <p>Bill by Sarah Korf against Della Korf and John Korf to foreclose a mortgage. From a decree for complainant, defendants appeal.</p>

, presiding. Bill by Francis A. Wilkinson against Frank G. Knee-land for tbe specific performance of a land contract. There was a decree pro confesso for complainant, and defendant’s application for a rehearing was denied. Defendant appeals.

Garnishment proceedings by the Banner Cigar Manufacturing Company against Morris H. Treuseh and Emanuel Treuseh, as garnishees of Jacob Lustig. From a judgment for plaintiff, defendants bring error. The transactions involved in this case are the same as those in Qumberg v. Treuseh, 103 Mich. 543 (61 N. W. .872), 110 Mich. 451 (68 N. W. 236), and Treuseh v. Ottenburg, 4 C: C. A. 629 (54 Fed. 867).

<p>Appeal from Wayne; Waite, J.</p> <p>Bill by Fred J. Todd, trustee, against Kate McLaughlin and Emma Curtis, to foreclose a land contract. From a decree for complainant, defendants appeal.</p>

Assumpsit by Nelson Converse against John Wallace for board furnished at defendant’s request. From a judgment for plaintiff, defendant brings error.

<p>Contempt — Avoiding Service of Subpcena.</p> <p>Concealing oneself to avoid service of a subpoena issued from the circuit court in chancery is not such an “unlawful interference with the process or proceedings” as will render one liable under Act No. 330, Pub. Acts 1899, § 1, to punishment as for contempt of court.</p>

Mandamus by Mary A. Hayes to compel Frank D. M. Davis, circuit judge of Ionia county, to strike a motion for a new trial from the files, and to vacate an order extending the time in which to settle a bill of exceptions hr move for a new trial.

<p>Action on Note — Execution—Evidence—Question for Jury.</p> <p>In an action on a note, defendant testified that the only note signed by him was sent to him in a letter, and was dated April 2d, payable in three months. His testimony was corroborated by the letter, and by the testimony of his wife. Plaintiff, a purchaser for value before maturity of the note in suit, which was dated June 29th, payable four months after date, presented proof that the signature to such note was defendant’s, and that there were no erasures thereon. Defendant, without specifically denying the signature, claimed that the note, if given by him, had been changed since its execution. Held, that the court properly left the issues to the jury, refusing to direct a verdict for plaintiff. Long and Grant, JJ., dissenting.</p>

<p>Privilege from Arrest — Attendance on Court.</p> <p>The rule of privilege from arrest, applicable to suitors and witnesses while in attendance upon the court and while going to and returning therefrom, cannot be extended to protect the vendor of a vessel, who is without the jurisdiction of his residence for the purpose of adjusting with the purchaser a libel filed by a third person against the boat. Moore and Long, JJ., dissenting.</p>

Appeals from Mason; McMahon, J. Bill by Frank J. Malliat against Albert Vogel and August Tiedemann, and by Pauline David and others against the same defendants, to quiet title. From decrees for complainants, defendants appeal.

Case by Catherine McCrum, administratrix of the estate of Henry McCrum, deceased, against Weil & Company, for negligently causing the death of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings ei’ror. Plaintiff’s decedent went to the store of the defendant company, went into its shipping room, fell into the ppen shaft of an elevator, and was killed. The name of the shipping clerk was Stowell.

Assumpsit by Harlan J. Dudley and Charles P. Collins against Clarence Conely and Oscar Schloeman, co-partners as Clarence Conely & Co., principáis, and Christian Hosbach and William Kemter, sureties, upon a replevin bond. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.

Case by the Fruit Dispatch Company against Guiseppi Russo and Sam Spalla, copartners as G. Russo & Company,-to recover the value of goods fraudulently purchased. From a judgment for defendants, plaintiff brings error.'

Bill by the Albion State Bank against Charles R. Knickerbocker, William B. Knickerbocker, the Jackson City Bank, Nathan S. Potter, and Jennie P. Goodwin, as administratrix of the estate of William F. Goodwin, deceased, impleaded with the First National Bank of Albion, to enforce an equity in a real-estate mortgage. From a decree for complainant, defendants appeal.

Bill by Mary Kammerer and others against Frank Morlock and others to set aside an administrator’s sale. From a decree dismissing the bill, complainants appeal.

Assumpsit by Sarah Parkinson against Thomas Woulds for breach of warranty in the sale of real estate. From a judgment for plaintiff, defendant brings error.

Assumpsit by Calvin C. Burt against George F. Greene to recover an amount due upon a contract of sale. From a judgment for plaintiff, defendant brings error.

<p>1. Mechanics’ Liens — Ownership of Land — Husband and Wipe.</p> <p>Land owned by a wife cannot be subjected to a lien for materials entering into the construction of a building erected thereon for her husband under a contract to which she was not a party; especially where no notice was given her that such materials were being furnished.</p> <p>O. Same — Bill to Enforce — Parties.</p> <p>A building erected under contract with a husband upon land owned by the wife cannot be subjected to a lien for materials entering into its construction, where the notice of claim' of lien was served upon the wife alone, and the bill to enforce the same made her the sole defendant.</p>

<p>Common-Law Marriage — Impediment — Evidence to Rebut Presumption — Proceeds of Benefit Certificate.</p> <p>-Where it appeared that the beneficiary named in an insurance certificate as the wife of the insured was at the time living with him as his wife, being held out, treated, and introduced by him as such, and that she continued so to live with him until his death, four years later, any presumption as to the continuance of an . alleged illicit relationship between the parties, claimed to be shown to have existed prior to the death of a former wife, which occurred three years before the certificate issued, was overcome, and the beneficiary named was entitled, as being in any event the common-law wife of the insured, to the proceeds of the certificate.1</p>

Mandamus by Charles McLeod to compel Byron S. Waite, circuit judge of Wayne county, to vacate an order quashing a writ of capias ad respondendum. Relator commenced a suit -by capias against two persons named James N. and Frank E. Matthews. The proceedings were quashed for a defective affidavit. Relator exchanged land with the defendants, Matthews.

Case by Joseph Shanke against the United States Heater Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error. The defendant was engaged in the manufacture of steam heaters. It had a foundry and machine shop. The castings were wheeled from the foundry to the yard adjoining, and dumped upon the ground. From the yard they were wheeled into the machine shop as they were needed.

<p>Error to Calhoun; Smith, J.</p> <p>Case by George L. Cantwell against John Brennan & Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

<p>1. Justices of the Peaoe — Adjournment—Docket Entry — Return to Certiorari.</p> <p>On certiorari to a justice, sued out by a defendant against whom judgment was rendered on his failure to appear on the day to which an adjournment.had been taken at his request, a docket entry which fails to show the place to which the cause was adjourned cannot be supplemented, so as to save the judgment, by a return of facts which tend tó show a waiver by defendant of the omission.</p> <p>3. Same — 1Technical Defect — Rule on Certiorari.</p> <p>Where judgment was rendered for plaintiff by a justice upon defendant’s failure to appear on the day to which the cause was adjourned, an omission to state in the docket entry the place to which the adjournment was taken is not a “technical defect” which the circuit court, under 1 Comp. Laws 1897, § 948, may disregard on certiorari.</p>

Irene Sprague Moore presented for probate the last will and testament of Adeline L. Sprague, deceased. Probate was denied, and proponent appealed to the circuit court. From a judgment for contestants (Thomas S. Sprague and Rollin C. Sprague), proponent brings error. Certiorari to Wayne; Waite, J. Thomas S. Sprague petitioned to be appointed administrator of the estate of Amelia L. Sprague, deceased.

Quo warranto by the people of tbe State of Michigan, on the relation of Frank H. Esper, against the Detroit & Saline Plank-Road Company, to forfeit respondent’s charter. From a judgment for relator, respondent brings error.

<p>Erfor to Wayne; Donovan, J.</p> <p>Case by Angeline Leach against the Detroit Electric Railway for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Frank Marrs, under an information charging rape, was convicted of an assault with intent to commit the crime, and sentenced to imprisonment for three years in the State house of correction at Ionia.

Bill by Bostwick R. Noble against Elijah B. Grandin and Livingston L. Hunter to cancel a certain deed and to restrain an action at law. From a decree dismissing the bill, complainant appeals.

<p>1. Railroads — Couplings —Violation op Rule — Company’s Knowledge — Waiver.</p> <p>Mere proof of a custom of brakemen, in making couplings, to guide the link with the hand instead of a stick, in violation of the rules of the company, is insufficient to preclude the company from relying upon such violation as a defense to an action for injuries received by a brakeman while so engaged, but, to have such effect, it must be shown that the custom was so universal and notorious that the company may be presumed to have known of and ratified it.</p> <p>2. Same — Sapety Couplers — Interstate Commerce Commission— Reports — Evidence.</p> <p>Act Cong. March 2, 1893 (27 Stat. 531), § 2, provides that after January 1, 1898, it shall be unlawful for any carrier to haul on its line any car used in interstate commerce not equipped with automatic couplers. Section 7 provides that the time for compliance with the act may be extended by the interstate commerce commission. The Interstate Commerce Act (24 Stat. 384), § 14, as amended by Act March 2, 1889 (25 Stat. 859), § 4, provides that the commission may provide for the publication of its reports and decisions, and that its authorized publications shall be evidence in all courts without further authentication. Held, that the exclusion, for lack of authentication, of a pamphlet decision, report, and order of the commission, signed by the secretary, extending the time within which defendant must comply with the act of 1893 as to automatic couplers, was error, since the report was within the provisions of the act of 1889.</p>

<p>Principal and Agent — Mortgages—Payments—Indorsement.</p> <p>An agent authorized to receive payments upon a mortgage may bind his principal, though payments made to him are. not indorsed</p>

<p>Habeas corpus by Charles Mann to obtain his discharge from the State prison at Jackson.</p>

Assumpsit by Henry Engelbert against John S. Eoley and others for services rendered. Erom a judgment for defendant Eoley on verdict directed by the court, plaintiff brings error.

<p>Error to Calhoun; Smith, J.</p> <p>Case by Walter S. Gifford against John J. Roberts for criminal conversation. From an order dismissing the causó for failure to file security for costs, and an order denying a motion to set aside the order of dismissal, plaintiff brings error.</p>

Exceptions before judgment from Ingham; Wiest, J. Arthur E. Marsh was convicted of being an accessory, to the crime of fraud and embezzlement in office: On respondent’s motion to dismiss appeal and remand cause.

Bill by Thomas M. Peck and Roger W. Butterfield against the city of Grand Rapids to set aside a special assessment. From a decree dismissing the bill, complain-, ants appeal.

Assumpsit by Antoine Labadie against the Detroit, Lima & Northern Railway Company for breach of an agreement under which it acquired a portion of its right of way. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by Charles O. Smedley and Benn M. Cor-win, copartners as Smedley & Corwin, against the city of Grand Haven, for professional services. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.

<p>Garnishment — Assignment of Salary — Mortgages—Additional Security— Consideration.</p> <p>A bank may sustain a claim to a police officer’s salary, assigned to it until such time as it should receive the full amount owing it under a past-due real-estate mortgage, as against a garnishing creditor of the assignor, since an assignment of additional security requires no new consideration to render it valid.</p>

Ejectment by Carrie Dawson against the Falls City Boat Club, Eben S. Wheeler, and Clara Wheeler. From a judgment for plaintiff, defendants bring error. Plaintiff claims to be tbe owner of private land claim No. 106. Defendant Eben S. -Wheeler is the owner of private land claim No. 105. These claims are bounded on the north by the St. Mary’s river, and on the south by Portage avenue.

<p>1. Attachment — Substituted Service — Loa Liens.</p> <p>Substituted service of a writ of attachment in log-lien proceedings is not permissible if defendant can be found in any county of the State.</p> <p>3. Same — Officer’s Return — Vacation of Writ.</p> <p>Where the return of the officer to a circuit court writ of attachment shows a substituted service of the writ on the day before the return day, and fails to recite any subsequent efforts to obtain personal service, the writ is properly quashed.</p> <p>3. Same — Offer to Amend Return — Review on Mandamus.</p> <p>On an application for mandamus to review the action of the circuit judge in quashing an attachment in log-lien proceedings for service on an alleged agent instead of personally on the owner, an offer to amend the officer’s return so as to show diligence of the officer, and the character of the agency, cannot be considered, since it falls short of an offer to show facts justifying substituted service.</p> <p>4. Same — Release oe Logs — Statutory Bond — Waiver.</p> <p>The giving of the statutory bond for the release of property attached in log-lien proceedings is not a waiver of defects in the service of the writ, as the bond merely stands in the place of the property.</p>

Mandamus by Arthur J. Clark, Charles R. Evarts, and Edwin Evarts, copartners as A. J. Clark & Co., to compel Alfred Wolcott, circuit judge of Kent county, to vacate an order quashing a writ of capias ad respondendum.

Attachment proceedings by Alfred Meads against the Belt Copper Mines, Limited. From an order setting aside a default judgment, plaintiff brings certiorari. The relator brought suit by attachment against the Belt Copper Mines, Limited, a foreign corporation existing under the laws of the kingdom of Great Britain and Ireland. The sheriff, under the writ, levied upon the lands of said corporation situated in the county of Ontonagon, Mich.

Ingham; Person, J. Case by Willis Vandercook against tbe Detroit, Grand Rapids & Western Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error. Plaintiff, on tbe evening of December 24, 1897, was a passenger over the defendant’s road from Plymouth, Wayne county, to Lansing. The train was due in Lansing at 9 o’clock, and was a few minutes late.

Bill by William B. Anderson against William Ettridge, Sarah Anderson, John Camlin, Fannie Camlin, and others to construe the last will and testament of James Grills, deceased. From the decree rendered, all parties, except defendant Ettridge, appeal. James Grills died testate in March, 1868. He had no children. He left a widow, who had one child by a former marriage, the defendant William Ettridge. ' The other defendants are the heirs at law of said James Grills.

Assumpsit by Charles N. Flattery against James Cunningham, Son & Company for commissions on the sale of goods. From a judgment for plaintiff, defendant brings error.

<p>Error to Clinton; Daboll, J.</p> <p>Replevin by Frank A. Scofield, an incompetent, by Addie E. Scofield, his guardian, against Charles Farmer. From a judgment for defendant, plaintiff brings error.</p>

<p>Error to Ottawa; Padgham, J.</p> <p>Case by Henry Lachman against Elton D. Fuller for libel. From a judgment for defendant, plaintiff brings error.</p> <p>This is an action for libel against the defendant, who is the publisher of a newspaper known as the Grand Haven Press. The publication, so far as it concerns the plaintiff, is as follows:</p> <p>“court notes.</p> <p>“Judge John H. Tafem, of Grand Rapids, was in the city Tuesday to argue a motion in the perennial case of Miller vs. Lachman. Attorneys Turner, of Muskegon, who are representing Henry Lachman, made a motion to strike the chancery bill of Judge Tatem from the files on a technicality. Their motion was overruled by JudgePadgham almost without argument. By this chancery bill Judge Tatem seeks to secure payment of a judgment of $2,000 secured by Grant E. Miller against Henry Lachman. The judgment was for alienating the affections of Mrs. Miller. It appears from the record that a. few years ago Miller left his wife and young daughters in Lisbon, and went to Dakota for the purpose of seeking employment. After he had been there for some time, friends wrote him that he had better return and look after his wife, as Henry Lachman, a wealthy neighbor, was paying her too much attention. Miller at once returned to his home and made an investigation of the condition of things, which finally satisfied him that he had been cruelly wronged. It appeared from stories of his friends that Lachman had been almost a daily visitor at his house during his absence, and had taken his wife -to Grand Rapids on pleasure trips, and generally rendered the widowhood of the lady as little sad as possible. On one-occasion even the boys had marked a hitching post in front of Miller’s residence, ‘ Lachman’s hitching post,’ for the alleged reason that Lachman’s horse was tied there very frequently. Altogether, a beautiful country neighborhood scandal was raised,</p> <p>1 ‘ About the only people who held to the theory of the innocence of Mr. Lachman and Mrs. Miller were the principals themselves. The wife denied emphatically that she had wronged her husband, while her alleged paramour supported her assertions so strongly that Mr. Miller, whose wife had always been true to him previously, was almost persuaded that his suspicions had been unjust. At this particular instant, though, Mrs.. Miller, backed up by her paramour, made a fatal mistake. She forced her hesitating husband into a legal fight, by bringing suit for divorce and asking the custody of her children. Then it was that Grant E. Miller retained Judge Tatem, and prepared for a bitter struggle. It came quickly, but was triumphantly won by Judge Tatem. Miller proved to the satisfaction of the court that his wife was not a fit person to control the children, and secured their custody, as well as a decree of divorce. Miller had been a long time entering into the fight, but, as developments came to the surface, he became so indignant that he determined to punish Lachman. For this purpose a suit for alienation of affections was brought by Judge Tatem. The trial was bitterly contested by the able counsel on both sides, but finally a verdict for $2,000 was awarded Miller; This case was appealed by Lachman’s attorneys, with the result that the case was affirmed in the Supreme Court. Then an attempt was made to secure the amount of this decree, which is still being fought.</p> <p>“Between Lachman’s heavy legal expenses and his alleged putting out of his hands property, Judge Tatem finds it very difficult to secure full satisfaction. He has sold one piece of real estate and secured a portion of Mil-1 ler’s money, and now seeks a division of the Lachman homestead and a decree of sale for a portion of it. This is the case in which the motion was made and argued Tuesday. This is a striking illustration of the ills usually growing out of the violation of the seventh commandment. * * * Lachman is largely crippled financially, and his folly has already cost him $3,000, with a probability of nearly as much more to follow. Grant E. Miller sits alone in an abandoned home, his little daughters worse than motherless, — a heart-broken man. His wife admits that he always was a loving husband to her, and now repents her folly bitterly.”</p> <p>In his plea defendant gave notice that he would prove the truth of the facts stated in the article. The case was submitted to the jury, who found a verdict for the defendant.</p>

• Error to Lenawee; Chester, J. Case by Frank Bonfiglio against tbe Lake Shore & Michigan Southern Bailway Company for damage to goods in transit. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Error to St. Clair; Vance, J.</p> <p>Case by Agnes Lauder against the township of St. Clair for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Application by the Union Trust Company, Mary E. Smith, and James C. McCaul, executors of the last will and testament of Martin S. Smith, deceased, for a writ of prohibition to restrain Edgar O. Durfee, probate judge of Wayne county, from enforcing the provisions of the inheritance tax law.

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

<p>Error to Wayne; Carpenter, J.</p> <p>Summary proceedings by John J. Barium and William B. Thompson, copartners as Barium & Thompson, against Simon Berger, to recover the possession of leased premises. Prom a judgment for plaintiffs, defendant brings error.</p>

, presiding. Replevin by Ezra Prouty against J. Prescott Brown. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Case by Mary J. King, an infant, by David King, her next friend, against the township of Colon, for personal injuries. From a judgment for plaintiff, defendant brings error. On June 1, 1889, plaintiff, then 14 years of age, on her way home from school stepped into a hole in the public highway, by reason of which she claims to have received injury. Nearly 5 years afterwards she instituted this suit, through her father, to recover damages therefor.

<p>1. Negligence — Personal Injuries — Falling Building — Declaration —Demurrer.'</p> <p>A declaration in an action for injuries received by the collapse of a building alleged to have been caused by defendants’ negligence, which states that many persons were killed and wounded, among whom was the plaintiff, but which contains other allegations stating that he was injured, is not subject to demurrer as showing that plaintiff is dead.</p> <p>2. Same — Proprietors—Several Interests.</p> <p>A declaration in an action for injuries received by the collapse of a building alleged to have been caused by defendants’ negligence, which shows that several of the defendants owned the property, and attempted to erect a building thereon, and the collapse of the structure, is not subject to demurrer because it does not show the respective interests of such defendants.</p> <p>3. Same — Joint Liability.</p> <p>The owner of property who contracts for the construction of an obviously defective and dangerous building, the architect thereof, and the various contractors who participate in the defective work may be made joint defendants in an action for injuries received by the collapse of the building.1</p>

<p>E'rror to Mason; McMahon, J.</p> <p>Assumpsit by Andrew Hengstler against the Flint & Pere Marquette Railroad Company to recover damages for injury to cattle shipped over defendant’s road. From a judgment for defendant on verdict directed by the court, plaintiff brings error.</p> <p>Plaintiff shipped a car load of cows from Ludington, Mich., to Charter Grove, 111., a distance of 480 miles. The cows were loaded January 37th. Counsel for plaintiff erroneously state the time as the 38th. Plaintiff accompanied the car as care taker. The car left Ludington at 10 o’clock a. m. the 37th, and reached Flint, Mich., at 4 o’clock a. m. on the 38th. Plaintiff testified that the cows were uninjured when they reached Flint, except one, which got hooked down, and he left her at Flint. It is not claimed that the defendant was liable for this injury. Plaintiff unloaded the cows at Flint, watered and fed them, and left Flint over the Grand Trunk Railway at 4 o’clock p. m. of the 38th. He arrived at Charter Grove at 10 o’clock p. m. January 39th, the journey occupying about 60 hours from Ludington to Charter Grove. He was delayed 4 hours at one place, 4 hours at another, and 8 hours in the yards of the Illinois Central Railroad Company in Chicago. The cows were not unloaded, watered, or fed from the time they left Flint -until they reached Charter Grove. Plaintiff claims that the cows were injured on the journey in consequence of these delays, and brought suit to recover such damages. The court directed a verdict for defendant.</p>

<p>Error to Kalamazoo; Buck, J.</p> <p>Assumpsit by Joel Water bury against Mary M. O’Brien for the board of a horse. From a judgment for plaintiff, defendant brings error.</p>

<p>1. Criminal Law — Identification—Photographs.</p> <p>Where the evidence indicated a change of appearance of accused between the time of his arrest and trial, in that at the trial he wore glasses, which he declined to remove at the request of the people’s counsel, a photograph taken of him at the time of his arrest became competent to aid in his identification with the person alleged to have committed the crime.</p> <p>2. Same.</p> <p>The photograph being admissible, it was competent for witnesses to testify whether it looked like the person seen committing the crime.</p> <p>3. Same — Larceny—Instructions—Matters not Involved.</p> <p>Where, on a prosecution for the larceny of certain cattle, the evidence showed conclusively that the cattle were stolen, and the jury were so instructed, and there was also testimony tending to show that respondent was seen in possession of the stolen property, which he denied in tato, it was not error for the court to omit instructions as to the essential elements of the crime of larceny, and as to any theory of the innocence of such claimed possession.</p> <p>4. Same — Comments on Testimony.</p> <p>That the court called the jury’s attention to the testimony of the only witness who positively connected respondent with the possession of stolen property, and intimated that, if true, it showed him in the possession of the property at a time and under circumstances raising a strong presumption of guilt, was not an improper discussion of the testimony, where the court at the same time explained the rule which made the jurors the judges of its truth and accuracy.</p> <p>5. Same — Reading Evidence to Jury — Absence op Respondent.</p> <p>Where, on a prosecution for larceny, the jury, after retiring, returned into court in respondent’s absence, and asked to have the testimony of one of the people’s witnesses read to them, which was done after respondent’s counsel had stated, in answer to a question, that he was not particular about the respondent’s being present, no error was committed.</p>

Bill by William H. McBryan, trustee of the estate of Pulaski A. Billings, a bankrupt, against Luther H. Trow-bridge, Walter B. Drew, and Harry F. Chipman, to set aside an attachment levy. From a decree dismissing-the bill, complainant appeals.

Charles L. Bernard was convicted of an assault with intent to commit the crime of murder, and sentenced to .imprisonment for seven years in the State prison at Jackson.

<p>1. Nuisances — Abatement — Obstruction in Street — BoatHouse.</p> <p>A boat-house built in a river at the foot of a public street, in such adjacency to respondent’s premises as to destroy a passage desired by him for ingress and egress, constituted a nuisance, which respondent, after notice to the owner and the latter’s refusal to remove it, was justified in abating so far as was necessary to secure to himself the right of way; the same being accomplished without breach of the peace.</p> <p>2. Same — Assent—Estoppel.</p> <p>One’s assent to the erection of a nuisance will not estop him from afterwards demanding that the nuisance be abated.</p>

Bill by Charles Flowers and John E. Moloney, trustees for Bridget Hill, against Edward F. Eeilly, Nicholas Savage, and Matilda Hill, to quiet title. From a decree dismissing the bill, complainants appeal.

<p>Exceptions before judgment from recorder’s court of Detroit; Phelan, J.</p> <p>Howard D. Smith was convicted of having in his possession a forged railroad passenger ticket, with intent to defraud.</p>

<p>Error to Wayne; Carpenter, J.</p> <p>Case by Louis J. Whitcomb against the Detroit Electric Railway for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.</p> <p>Plaintiff was a conductor on one of defendant’s cars in the city of Detroit on April 25, 1898. He had been in the employ of the company for several years. He operated the car on the day before until 3 o’clock p. m., and returned it to the barn in good order. Another conductor then took and ran it until 1 o’clock a. m., Monday. That conductor turned it in in good order. Plaintiff took the car at 5:50 a. m., ran about a mile down Kercheval and Mt. Elliott avenues to Mack avenue. The trolley pole there left the wire, a thing not uncommon for these poles to do, for various causes. They are then put in place by a cord hanging from the trolley pole to the rear of the car. He replaced the trolley upon the wire in the usual way, and saw that the pole was somewhat bent. The pole left the wire several times upon the trip, and every time was replaced in the usual manner. There appeared to be no difficulty in making that trip, of about 11 miles, and he arrived in front of the barn without having lost any time. He testified that one Coffee, a car inspector, and others were standing in front of the barn. He stopped on the outside track, and while standing on the car platform called the attention of those standing in front of the barn to the pole. Told them he would like a new car; that he had had trouble with the pole. He testified, further, that some one told him to go to Belle Isle bridge and back again. He then started with his car to make the trip. He went down Concord street to Champlain street; thence to Field avenue and Jefferson. At Field avenue the pole gave a sudden jerk, and left the wire. He then saw that the pole was twisted in such shape that the wheel would not stick to the wire at all, and that he could not replace it by the cord. He then went up on the car, took hold of the trolley pole, had it under his arm, and attempted to straighten it. He could not, and held the pole with his hands to the wire, and started for the barn. In making the curve at the corner of Field and Jefferson avenues, the pole and base by which it was fastened to the top of the car gave way. He was thrown from the car, the pole following, and falling upon him. ' A car immediately following pushed plaintiff’s car into the barn. The trolley pole was 14 feet long, of wrought-iron pipe, tapering slightly at its base, and fitted into a socket of the trolley stand, which was fastened securely to the top of the car. The trolley stand swung on a pivot, so as to adjust the wheel to the curves of the track. The socket holding the trolley pole was cup-shaped, constructed with clamp screws at its sides to tighten or loosen it to the tapering end of the trolley pole. These clamp screw heads were found on the top of the car, showing fresh breaks. He charges that his injury was the result of defendant’s negligence. The negligence charged in the declaration is that the defendant delivered to him the car in an unsafe condition, in that the trolley pole was in a bent and crooked condition, loose at the base, and incapable of running along the overhead wire. The court directed a verdict for the defendant.</p>

<p>Appeal from Muskegon; Russell, J.</p> <p>Petition by Poscoe D. Dix, auditor general, for the sale of lands delinquent for taxes: On objections filed by Armenia H. Smith. Prom a decree for petitioner, contestant appeals.</p>

<p>1. Animals — 'Vioiousness—Injury by Dog — Evidence.</p> <p>Where, in an action for injuries caused by a dog, the testimony to show the dog’s vicious disposition is confined to specific instances, evidence tending to show the general peaceable disposition of the dog is inadmissible in rebuttal, even though defendant denies all knowledge of such instances.</p> <p>3. Same — Hearsay—Harmless Error.</p> <p>Where there was no dispute but that it was defendant’s dog that caused an injury sued for, it was harmless error to allow plaintiff to state that another told her the dog belonged to' defendant.</p> <p>3. Same — Irrelevant Question — Striking Answer.</p> <p>Where counsel for the plaintiff in an action for injuries caused by defendant’s dog asked plaintiff if defendant came near her at the time of the accident, and on objection the question and answer were stricken from the record by consent, there was no error.</p> <p>4 Same — Error Cured by Charge.</p> <p>Whdre, in an action for injuries caused by an alleged attack by defendant’s dog upon a horse driven by plaintiff, the court excluded evidence of the horse’s reputation for skittishness and fear of dogs under one form of question, but admitted it " under another, and charged that if plaintiff, at the time of the accident, was driving an unsafe horse in the habit of being unduly frightened at dogs going about in an ordinary manner, and such habit of the horse was the proximate cause of the injury, then the plaintiff could not recover, the charge cured any error there might have been in the ruling.</p>

Ejectment by Victoria Sleight against Franklin Roe and Etta Roe. From a judgment for plaintiff on verdict directed by the court, defendants bring error.

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

<p>Husband and Wife — Separate Maintenance — Contract—Equity Jurisdiction — Demurrer.</p> <p>Where a husband and wife entered into a written contract whereby it was agreed that they should live apart, and that the husband should make specified weekly payments to the wife for her support, in which payments the husband, after separation, willfully defaulted, a bill filed by the wife under 3 Comp. Laws 189?, § 8686, for separate maintenance, was not demurrable on the ground that complainant, by entering into the contract, waived her right to resort to equity in the event of defendant’s failure to support her, or that she had, in an action on the contract, an adequate remedy at law.</p>

Assumpsit by Robert C. Fair against John W. Martin for goods sold and delivered. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Error to Wayne; Donovan, J.</p> <p>Assumpsit by Erastus P. Coy against the Detroit,Ypsilanti & Ann Arbor Railway to recover excess fare paid under protest. Prom a judgment for plaintiff, defendant brings error.</p>

, presiding. Bill by Edna Maxwell against Roscoe D. Dix, auditor general, and Charles J. Smith, county treasurer- of Bay county, to set aside certain taxes. There was a decree pro confesso for complainant, after which the city of Bay City, by its mayor, recorder, and city attorney, petitioned for leave to file a bill of review. From an order vacating the decree and dismissing the bill, complainant appeals.

Case by Charles Kopelka against the city of Bay City for personal injuries. From a judgment for plaintiff, defendant brings error. Plaintiff left his home at half past 9 o’clock on November 24, 1899, to go to a grocery near by to buy some tobacco, stepped into a hole in the sidewalk, about 12 inches long by 6 or 8 inches wide, fell, and fractured his ankle.

<p>Appeal — Bill op Exceptions — Notioe op Settlement.</p> <p>*Defendant, against which, a judgment had been rendered, made a motion for time to settle a bill of exceptions to the first day of the next term. The attorney for plaintiff opposed the motion, but not on the ground that no notice had been given or showing made, as required by Circuit Court Rule No. 47. Held, that plaintiff had waived such notice and showing.</p>

Russell D. Clancy, as administrator of the estate of David Clancy, deceased, presented a claim against the estate of Neal Leach, Sr., deceased, for services rendered by claimant’s decedent. The claim was allowed by the commissioners, and defendant appealed to the circuit court. From a judgment for defendant on verdict directed by the court, claimant brings error. In 1868 Neal Leach, Sr., owned 80 acres of land, on which he and his wife lived.

<p>1. Declaration — Amendments—New Cause oe Action — Limitations — Action Against City — Notice.</p> <p>In an action against a city for wrongful death, the declaration, filed before limitations had run, was demurrable, in that it failed to show that the demand had been presented to the common council, as required by the city charter, or that notice of the inj ury had been given the city law department within three months from its occurrence, as required by the charter. After the expiration of the period of limitation, an amended declaration was filed, which was the same as the original one, save that it, showed a compliance with the charter provisions. Held, that the amended declaration did not introduce a new cause of action.</p> <p>2. Mandamus — When Lies.</p> <p>Mandamus is not the proper remedy to review the action of the circuit judge in permitting the filing of an amended declaration after the period of limitations had expired, over defendant’s objection that the proposed amendment would introduce a new and different cause of action.</p>

Bill by Stephen E. Cleaves and William S. Cleaves, copartners as Cleaves & Son, against James P. Walsh and Emmet A. Upstill, copartners as Walsh & Upstill, and the Copper-Range Company, for the specific performance of a land contract. Prom a decree dismissing the bill, complainants appeal. Complainants reside in Houghton, Mich. Defendants Walsh and Upstill reside in Cleveland, Ohio.

Bill by Charles Lindow and Eliza Lindow against John Webber and Ada L. Cash to have a deed declared an equitable mortgage, and for an accounting. Erom a decree finding a balance due to defendants, complainants appeal.

Replevin by Frank E. Fisher against Hugo A. Wine-man and others. From a judgment for defendants, plaintiff brings error. This is an action of replevin. Plaintiff claims title under a chattel-mortgage foreclosure sale. Defendant Wineman claims title as a judgment creditor of the Fisher Electrical Manufacturing Company. The other two defendants are the officers who made the levy under the execution.

Frederika Lange presented for probate an instrument purporting to be the last will and testament of Henry Wiegand, deceased, to the allowance of which Henry J. Wiegand and others filed objections. The instrument was disallowed in the probate court, and proponent appealed to the circuit court. From a judgment for contestants, proponent brings error.

Case made from Wayne; Donovan, J. Carrie Cole petitioned the probate court for an allowance for her support, and for the support and education of her children, out of the estate of Darius Cole, deceased. The probate court made an order for a less amount than was claimed, and petitioner appealed to the circuit court, where she prevailed. The executors, Adelbert R. Lee and Robert Maxwell, assign error.

Replevin by Marvin R. Salter, administrator of the estate of Julia E. Sutherland, deceased, against Daniel M. Sutherland. A judgment for defendant was affirmed March 6, 1900 (123 Mich. 225). On defendant’s motion for leave to move the circuit court for a modification of the judgment entry.

Certiorari by Joseph Smelser and others to review the action of the board of school inspectors of the township of Big Prairie in creating a school district. From an order quashing the proceedings, respondent brings error.

<p>Mandamus —When Lies — Garnishment — Dismissing Proceedings.</p> <p>Mandamus will not lie to compel the dismissal of garnishment proceedings on account of an alleged defective service in the original suit.</p>

<p>Error .to Eaton; Smith, J.</p> <p>Replevin by Peter R. Johnson against Lucy M. Johnson, Marion Porter, and Mildred Porter. From a judgment for defendants, plaintiff brings error.</p> <p>Plaintiff and defendant Lucy are husband and wife. Both had been married before. She had several children by her former marriage. He had none. At the time of the trial, he was 79 years old, and she 64. When the difficulty arose between them, they had been married and lived together 8 years. The defendant Mildred Porter is the daughter of defendant by her former marriage. Defendant Marion Porter is her husband.</p> <p>At the time they separated, she took with her some of the household goods. In removing the goods she was assisted by the other defendants. Plaintiff brought this action of replevin to recover the goods. The theory of the plaintiff is-that the wife, on separating from her husband, cannot take any of the household goods from his home. The theory of the defendants is that the plaintiff’s wife was driven from his home by such cruel conduct and the use of such vile language that it was not safe for her to remain longer with him, and that his acts in driving her from him amounted to desertion on his part. The case was submitted to the jury on the latter theory, who found a verdict for the defendants. Plaintiff admits having used towards her vile and opprobrious epithets. The testimony on the part of the defendants, if believed by the jury, supports the conclusion that she was justified in leaving him, that it was not safe for her to longer remain, and that he told her to take her things and depart. It is not necessary to state the testimony in detail.</p>

Mandamus by the Detroit Citizens’ Street-Railway Company to compel the common council of the city of Detroit to set aside an assessment for taxes. From an order denying the writ, relator brings certiorari.