Volume 126 — Michigan Reports

Charles C. Stewart presented a claim against the estate of Frank McLaughlin, deceased, under a contract of guaranty. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for defendant, claimant brings error.

<p>Mandamus by Frank L. Carpenter to compel Richard L. Newnham, judge of the superior court of Grand Rapids, to vacate an order setting aside a default.</p>

Mandamus by Marcelline Hamelin to compel John W. Stone, circuit judge of Delta county, to vacate an order dismissing an appeal from an order appointing an administrator.

<p>Set-off — Equity—Claim of One Defendant.</p> <p>Complainant contracted to sell land to defendants, who were husband and wife; the husband intending the land as a present to his wife, and paying part of the purchase price and signing her name to the contract- without her knowledge. The men also had other dealings in which the husband was indebted to complainant, and at divers times made payments and gave him collaterals and other securities, which complainant disposed of and refused to account for, more than sufficient to pay all debts they were given to secure and the balance on the land contract. In a suit to foreclose the land contract for failure to pay the balance of the purchase price, defendants sought an accounting for such securities, and application of the excess, above the debts secured and paid thereby, as an offset of the amount due under the contract, and judgment for the balance. Held, that, under 3 Comp. Laws 1897, § 10075, subd. 6, providing that, if there be several defendants, the demand set off must be due to all of them jointly, the claim of the husband alone could not be set off at' law, and that, in the absence of insolvency of the complainant, or something in the nature of the claim or the situation of the parties showing that justice would not otherwise be done, equity should follow the law, and refuse to allow the claim as an equitable set-off.</p>

Assumpsit by Daniel M. Angell against John Pruyn for breach of warranty on a sale of fruit trees. From a judgment for plaintiff, defendant brings error.

Mandamus by Thaddeus W. Bacon to compel the board of State tax commissioners to vacate an assessment on certain shares of stock in a foreign corporation.

Bill by Emily Templeton against Angus Templeton for a divorce. From a decree fixing the amount of alimony to be paid by defendant, complainant appeals.

Assumpsit by David S. Marshall against the Pontiac, Oxford & Northern Railroad Company to recover the value of lost baggage. From a judgment for plaintiff, defendant brings error.

<p>Security for Costs — Failure to Furnish — Motion to DismissLaches — Mandamus.</p> <p>A suit was commenced in April of one year, and plaintiff recovered judgment, which was reversed in May of the succeeding year. In August of the latter year, defendant moved to dismiss the cause because of plaintiff’s failure to furnish security for costs. Defendant’s attorney filed the affidavit in support of the motion, in which he positively stated that plaintiff had resided in Canada since before the institution of the suit, and was financially irresponsible, but it did not show how he acquired such information. Held, that an order denying the motion on the ground that it was made too late, and that there was no excuse for the delay, would not be vacated by mandamus, since it would be assumed from the affidavit that defendant’s attorney knew the residence of plaintiff when the suit was commenced.</p>

<p>Petition by tbe city of Eaton Rapids for an order adjudging Charles S. Horner and others to be in contempt of the decree entered in Horner v. City of Eaton Rapids, 122 Mich. 117.</p>

<p>Appeal from Calhoun; Peck, J., presiding.</p> <p>Bill by Mary J. Crosby against Leonard D. Hutchinson-to quiet title. From a decree dismissing the bill, complainant appeals.</p>

Bill by Morris Ullman and others against John C. Thomas, Augusta Thomas, and John Murray in aid of execution. From a decree dismissing the bill, complainants appeal.

<p>Ejectment — Nonsuit—Vacation of Judgment — Discretion of Court.</p> <p>A judgment of nonsuit in ejectment having been entered by consent against plaintiff, without costs, except the clerk’s fees, but without the knowledge of two of the defendants, they afterwards appeared, and, on an affidavit alleging their ignorance thereof and want of consent, moved that the judgment he modified so as to give costs to them, and that an order be made for the retaxation thereof. The court denied the motion, and on its own motion vacated the judgment. Held, that it acted within its proper discretion.</p>

Mandamus by William C. Weber to compel John W. Stone, circuit judge of Marquette county, to set aside an order extending the time for the settlement of a case for review.

Ejectment by Jacob Stahl against George M. Dayton and wife. There was a judgment for plaintiff, and from an order denying a motion for a new trial, defendants bring error.

Case by Elizabeth Trudell, administratrix of the estate of William Trudell, deceased, against the Grand Trunk Railway Company of Canada, for the alleged negligent killing of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.

Bill by Mary J. Greenwood and others against school district No. 4 of Napoleon township and others to restrain the erection of a school-house. The defendants filed an answer in the nature of a cross-bill to quiet title- and to enforce a land contract. From a decree dismissing both bill and cross-bill, complainants áppeal. Complainants are the owners of a parcel of land containing about 62 acres.

Bill by Ruth Chamberlain against Elizabeth Forbes to set aside a mortgage. From a decree for defendant on her answer in the nature of a cross-bill, complainant appeals.

Case by Minnie Brown against the city of Owosso for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Case by Charles Laviolette against Silas L. Alberts and Albro Enos, copartners as S. L. Alberts & Company, for breach of warranty. From a judgment for defendants, plaintiff brings error.

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

<p>Criminal Law — Larceny—Replevin—Fraudulent Conversion..</p> <p>Where respondent replevied certain property concerning the-title to which an honest difference existed, and disposed of the same pending the litigation, he did not thereby render himself amenable to criminal prosecution for larceny, although ultimately defeated in the suit; the provisions of & Comp. Laws 1897, § 11570, — declaring that any person to-whom property is delivered which may be the subject of larceny, who shall fraudulently convert the same to his own use, shall be deemed guilty of larceny, — not being applicable-to such a case.</p>

Exceptions before judgment from Ottawa; Padgham, J. Petei* Van Maren was convicted of illegal fishing. Respondent was convicted in justice’s court of fishing contrary to Act No. Ill of the Public Acts of 1889 (2 Comp. Laws 1897, § 5861 et seq.). The complaint charged the locus to be in the waters of the Grand river, in the township of Grand Haven, in the county of Ottawa. Two witnesses testified that they saw the respondent set the nets.

Assumpsit by Benjamin B. Morgan against Allen L. Nowlin and James T. Hurst upon a promissory note. From a judgment for plaintiff on verdict directed by the court, defendant Nowlin brings error.

Habeas corpus proceedings by Anna P. Doyle to determine the right to the custody of Gladys Wrisley, an infant. The following is a concise 'statement of facts, taken from the brief of the attorneys for the petitioner: “Anna P. Wrisley and Prank Wrisley were married at Cheboygan in June, 1891. In August, 1892, Gladys Wrisley was born.

Carpenter, JJ. Mandamus by Chase S. Osborn, commissioner of railroads, to compel the Wabash Railroad Company to reduce its passenger rates. From an order denying the writ, relator brought certiorari. On April 24,1900, the Supreme Court entered judgment for relator, but subsequently permitted respondent to amend its answer.

<p>Error to Saginaw; Snow, J.</p> <p>Assumpsit by Peter 0. Andre against Christopher Graebner for rent. Erom a judgment for defendant, plaintiff brings error.</p>

<p>1. Life Insurance — Cause of Death — Suicide.</p> <p>Where there was evidence, in an action on a life-insurance policy, that the insured, who at the time of his death was under treatment at a sanitarium for a form of mental disease usually accompanied by suicidal tendencies, was possessed of a strong desire to escape from his confinement, the jury was warranted in finding that his action in jumping into a river, in which his body was found soon after he was missed by a companion, was impelled by a desire to escape by swimming, and not by a purpose to suicide.</p> <p>2. Evidence — Exclusion—Facts Proved — Harmless Error.</p> <p>The exclusion of evidence designed to establish a fact sufficiently shown by the uncontradicted testimony in the case is harmless error.</p> <p>3. Life Insurance — Cause op Death — Admissions Against Interest.</p> <p>In an action on a life-insurance policy, where the beneficiary claimed that the insured came to his death by accidental drowning, evidence that she had stated in the proofs of loss furnished to another company that the insured committed suicide, and that she filed with defendant a physician’s affidavit giving suicide as the cause of death, was competent to be considered by the jury as admissions against her interest, though she was not shown to have had any personal knowledge of the facts.</p> <p>4. Same — Hearsay.</p> <p>But a statement in the physician’s affidavit that a coroner’s inquest had established the fact that death was the result of suicide was inadmissible as hearsay. Montgomery, C. J., and Hooker, J., dissenting.</p> <p>5. Same — Coroner’s Yerdict.</p> <p>A verdict of a coroner’s jury, that one whose life was insured committed suicide, is not admissible as original evidence against the beneficiary of the fact that he committed suicide.</p> <p>6. Same — Presumptions Against Suicide —Insanity—Instructions.</p> <p>Where the defense of suicide was interposed to an action on a life-insurance policy, and the uncontradicted testimony showed that the insured was suffering from a species of insanity usually attended with suicidal tendencies, a charge that the presumption of law was that he did not commit suicide, whether sane or insane, was erroneous; no presumption being properly indulged under such circumstances.</p>

Bill by Leopold Freud against Louise Ruhl and others to foreclose a mortgage. There was a decree for complainant, and a sale under the decree, at which complainant and John B. Sevald became the purchasers of separate moieties of the land. Defendant Ruhl appeals from an order denying her petition to redeem.

Assumpsit by James McClure against Peter J. Murphey for work and labor. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Andrew L. Davis presented a claim against the estate of Miles Gf. Teachout, deceased, under a contract for the support of decedent’s father. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for claimant, defendant brings error.

Assumpsit by William J. Burton against the Variety Iron Works for work and labor. From a judgment for plaintiff, defendant brings error.

Bill by Andrew W. Comstock and William B. Com-stock, surviving partners of the firm of Comstock Brothers, against George R. McDonald, administrator of the estate of Joseph B. Comstock, deceased, and others, for an accounting. From the decree rendered, complainants appeal.

, presiding. Case by Susan Williams against the city of West Bay City for personal injuries. From a judgment for plaintiff, defendant brings error.

Assumpsit by Ira L. Grinnell and Clayton A. Grinnell, copartners as Grinnell Bros., against John E. Bebb, for goods sold and delivered. From a judgment for defendant, plaintiffs bring error.

<p>1. Life Insurance — Cause of Death — Cancer—Development of Disease — Question for Jury.</p> <p>Where physicians testified, in an action on an insurance certificate, that it was possible that a cancer, which caused the death of the insured 10 days after he received his certificate, might have originated and developed within so short a period of time, but that it was extremely improbable that such was the fact, and that no similar case had come within the range of their personal knowledge, it was proper for the court to submit the question as. one of fact to the jury.</p> <p>2. Appeal — Denial of New Trial — Review.</p> <p>An order denying a motion for new trial is not review able on 126 Mich. — ll. error where the record does not show the reasons for the denial, or that any exception was taken to the ruling.</p> <p>3. Life Insurance —Conditions—Good Health — Temporary Indisposition. »</p> <p>A condition of an insurance certificate that insured should be in good health at the time of receiving his certificate would not be violated because of some slight -indisposition, as headache or colic, only temporary in its effect.</p> <p>4. Same — Breach of Warranty.</p> <p>Where an insurance certificate makes the truth of the insured’s statement in his application, that he is at the time in good health, essential to the validity of the certificate, it would be error to permit the jury to excuse a breach of such warranty on the theory that the false statement was such as to work no prejudice to the insurer.</p> <p>, 5. Trial — Instructions—Harmless Error.</p> <p>An instruction containing language which is erroneous in the abstract does not require a reversal where the context renders it harmless, and it is apparent that the jury considered it in its proper connection.</p>

Case by Hilaire Prieur against the E. H. Stafford Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff was a dealer in oil and barrels, and as such frequently went to the freight house of the Chicago & West Michigan Railway Company to receive and unload barrels. He had a tall rack, with slanting sides, upon his wagon, on which to load the barrels.

<p>Replevin — Affidavit—Clerical Error.</p> <p>* A clerical error in an affidavit for writ of replevin, substituting in one place the names of the defendants for the plaintiffs, will not vitiate the affidavit, where the error is manifest upon its face.</p>

Replevin by Harvey ,L. Van Benschoten and George W. Harris against Elmer E. Fales. From a judgment for plaintiffs on verdict directed by the court, defendant brings error.

, presiding. Assumpsit by Charles A. Gorman against Thomas Kennedy and Thomas J. Kennedy, copartners as Thomas Kennedy & Son, for goods sold and delivered. From a judgment for defendants, plaintiff brings error.

Assumpsit by William Schroder against Benjamin W. Pinch for goods sold and delivered. From a judgment for plaintiff, defendant brings error. Defendant, Pinch, and one Robinson, were copartners under the firm name of Pinch & Robinson, and were engaged in the manufacture of carriages. ■ While they were ■copartners, plaintiff, a grocery man, bought of them a phaeton for $150; $50 to be paid in groceries, and $25 per month until the balance was paid.

Bill by Louis Koch, executor of the last will and testament of Felix Koch, deceased, and others, against Katherine G. Koch, to enforce the specific performance of an antenuptial contract. From a decree for complainants, defendant appeals. Complainants are heirs and sole devisees, and the defendant the widow, of Felix Koch. In his will he left nothing to his wife. She filed a petition to secure her rights as a widow in his property.

<p>Fire Insurance — Construction or Policy — Loss from Lightning.</p> <p>* Plaintiff, a farmer, obtained a policy of insurance upon “live stock,” etc. “Stock insured against lightning anywhere in Kent, Allegan, and Ottawa'counties. Situated in Allegan county, Michigan, on section 5, in the township of Heath.” Plaintiff, while absent from his home with his horses on business, stopped overnight at the house, and stabled his horses in the barn, of a relative. The barn was struck by lightning, burned, and the horses destroyed with it. ‘Held, (1) that the insurance was not limited to the loss of stock upon the farm; (2) that the policy covered loss from both lightning, and fire the immediate result of the lightning.</p>

, presiding. Bill by the village of Red Jacket against Joseph Pintón to restrain the erection of a building encroaching upon the street. From a decree dismissing the bill, complainant appeals.

Assumpsit by Frank E. Brown and John Sehler,. copartners as Brown & Sehler, against Jacob Snider, for goods bargained and sold. From a judgment for defendant, plaintiffs bring error.

Bill by John W. McCratb, administrator of the estate of David Haynes, deceased, against William H. Myers and William H. Myers, Jr., to foreclose a mortgage. From a decree dismissing the bill, complainant appeals.

Ejectment by Cora M. Carpenter against Augustus D. Carpenter and wife. , From a judgment for plaintiff on verdict directed by the court, defendants bring error.

Case by the Peerless Manufacturing Company against John N. Bagley and others for negligence in the construction of a sprinkler system in premises leased to plaintiff. From a judgment for plaintiff, defendants bring error. The facts in this case are undisputed. Plaintiff was engaged in the manufacture of clothing, and was tenant of a building owned by defendants.

Assumpsit by the county of Wayne against Henry M. Reynolds to recover back money paid to defendant as extra compensation for services rendered while clerk of said county. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by Austin Wright and Elizabeth Wright against Estella J. Hubbard and Miles Simmons, administrator of the estate of Clarissa Poland, deceased, for the cancellation of certain mortgages. From a decree for complainants, defendant Hubbard appeals. Complainants are husband and wife. He owned a farm of 120 acres in Sanilac county, Mich.

<p>Mandamus by John Pruyn to compel Willis B. Perkins, circuit judge of Kent county, to transfer a cause to the superior court of Grand Rapids.</p>

Bill by Thomas P. Kearney against the Washtenaw Mutual Fire-Insurance Company to set aside an award. From an order overruling a demurrer to the bill, defendant appeals.

Bill by Oliver L. Spaulding, assignee of Robert M. Steel and the R. M. Steel Company, Limited, against George A. Steel, for an accounting and a discovery. From a decree dismissing the bill, complainant appeals.

Assumpsit by Lottie L. Lyon, individually and as administratrix of the estate of Thomas Lyon, deceased, and John W. Breakey, copartners as the Homer Banking Company, against T. Van Raden and H. D. Wheeler, copartners as Van Raden & Wheeler, for money paid to defendants’ use. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.

Bill by the Ideal Clothing Company and others against Fred E. Hazle and Frank B. Clark, copartners as Hazle & Clark, and others, to set aside certain conveyances and for an injunction. From an order overruling a demurrer to the bill, defendants appeal.

<p>Divorce — Cruelty—Condonation.</p> <p>A claim of condonation in defense of a suit for divorce on the ground of extreme cruelty is not made effectual merely because no new misconduct constituting a cause for divorce i is shown to have occurred subsequent to the alleged condonation, but it is necessary that the conditions upon which the condonation was granted should have been complied with by the offending party.</p>

Mandamus by Henry E. Gustin to compel William R. French, commissioner of the State land office, to issue a certificate of purchase for certain swamp lands.

<p>Counties — Physician’s Services — Allowance of Claim — Estoppel — Health Officer — Compensation.</p> <p>* 1. When, a physician has presented a bill to a county for services rendered to indigent persons, his bill has been audited, and he has received, without protest, the amount allowed thereon, he is estopped to claim the balance as services rendered under section 4424, 2 Comp. Laws 1897, relative to contagious diseases.</p> <p>2. Where a health officer has been called in consultation by another physician to determine whether the patient is affected with a disease dangerous to the public health, he renders his services as health officer under section 4460, and not section 4424, 2 Comp. Laws 1897. He is therefore entitled to compensation under section 4462, and not under section 4424.</p>

Assumpsit by Thomas G. Harris against Cyrenus Chamberlain to recover the purchase price of a stock of goods. From a judgment for plaintiff, defendant brings error.

Bill by John Northwood and others against the Barber Asphalt-Paving Company to abate a nuisance. After a decree for complainants, a petition was filed charging a violation of its terms, and defendant was thereupon adjudged to be guilty of contempt, from which order it appeals.

<p>Quieting Title — Pleading—Amendment.</p> <p>* Complainant filed a bill to remove a cloud from his title, consisting of a deed made to defendant upon an execution sale. Upon the hearing complainant was permitted to amend his bill by alleging that defendant had taken no steps to determine the rights and equities of the judgment debtor, under section 9167, 3 Comp. Laws 1897. Held:</p> <p>1. That the amendment did not introduce a new cause of action, but an additional reason for the same cause of action.</p> <p>2. The failure by a judgment creditor to proceed under section 9167 is fatal to his case.</p> <p>3. Held, under the circumstances of the case, that defendant be given 20 days within which to file in this court a certified copy of such proceedings, if any were taken.</p>

<p>Dower — Ejectment to Establish.</p> <p>* Plaintiff was entitled to dower of the value of §8.80 in a city lot. Before bringing suit, her attorneys examined the record! ascertained that defendants S. and M. owned the record title j that defendant B. was their tenant in possession. They asked S. and M. if they were still the owners of the title. S. and M gave evasive answers. In fact, S. and M. had conveyed their title to M.’s husband some months before, but the deed had not been recorded. Held, that this was a sufficient claim of title to maintain ejectment, and that S. and M. were liable for the value of the dower.</p>

<p>Contracts — Offer and Acceptance — Sale—Delivery.</p> <p>Plaintiff forwarded for defendant’s written acceptance a contract providing that defendant should deliver to plaintiff, “ as required during the year 1899,” a quantity of scrap iron. Defendant replied that, in accepting the offer, he could not agree to commence to furnish the iron before April 1st, but that, if this should be satisfactory, he would sign the contract. Plaintiff thereupon signed and forwarded a contract identical with the original, except that delivery within one year from April 1st was stipulated. Held, that, in the absence of assent by defendant to the three months’ extension in the period of delivery, no contract was effected.</p>

Assumpsit by the board of supervisors of Kent county against the board of supervisors of Mecosta county for expenses incurred in the trial of a criminal case under a change of venue. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Error to Wayne; Donovan, J;</p> <p>Certiorari by Henry J. Audretsch and Mary Audretsch against William A. Hurst, circuit court commissioner of Wayne county, to review the action of the commissioner in certain summary proceedings for the possession of land. From a judgment for defendant, affirming a judgment of ouster, plaintiffs bring error.</p>

Bill by Jennie Sartwell against William R. Y oung, impleaded with Arthur Brace and Charles Stewart, to set aside certain deeds. From a decree for complainant, defendant appeals.

Bill by August Goebel against the Grosse Pointe Waterworks to enjoin defendant from cutting off complainant’s supply of water, and to determine a reasonable rate therefor. From a decree for complainant, defendant appeals. The defendant is a corporation organized in 1890, under the laws of this State, for the purpose of supplying water to the inhabitants of Grosse Pointe. Grosse Pointe is mainly occupied for summer residences by wealthy people of Detroit.

<p>Error to superior court of Grand Rapids; Newnham, J..</p> <p>Debt by the city of Grand Rapids against Joseph Van Rossum, principal, and Peter Van Rossum and Cornelius Van Strein, sureties, upon a plumber’s bond. Prom a. judgment for plaintiff on verdict directed by the court,, defendants bring error.</p> <p>The defendant Joseph Van Rossum is a licensed plumber in the plaintiff, city. He gave a bond conditioned to hold the city harmless from all loss or damage that should “be occasioned in any way by accident or the want of care on the part of the said Joseph Van Rossum in the prosecution of any work he may do under and by virtue of his said appointment, * * * or that may be occasioned by reason of any opening by him made or caused to be made in any street, lane,” etc., “and shall promptly at the proper time replace and restore the street or pavement over such openings to as good state and condition as the same was previous to and at the time of opening the same.” On the 1st day of August, 1898, he dug a trench across Ottawa street for the purpose of making a water connection. By reason of this excavation being left unprotected, one Elizabeth Monje fell into it, was injured, sued the city, and recovered damages. Monje v. City of Grand Rapids, 122, Mich. 645 (81 N. W. 574). Defendant had completed the plumbing work, and had filled the ditch, except in the line of a sewer which was being dug lengthwise to Ottawa street by one Owens under a contract with the city. Owens had given a bond similar to that of defendant, to hold the city harmless. Owens’ trench would cross the excavation made by the defendant, and he requested the defendant not to fill the ditch where he would cross. Defendant testified that he' made an arrangement with Owens by which Owens assumed control of the trench, and promised to protect it; that, before the accident happened, Owens had reached the excavation made by the defendant; that Owens failed to protect the place, and that by reason of his failure Mrs. Monje was injured. The court directed a verdict for the plaintiff.</p>

Case by Samuel L. Bledsoe, administrator of the estate of Samuel Bledsoe, deceased, against the Grand Trunk 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. The railroad yard of the defendant company extends from Brush street on the west to Hastings street on the east, a distance of 1,400 feet, and beyond.

, presiding. Bill by Eugene D. Olmstead and Minnie J. Olmstead against Henry H. Taylor and others to foreclose a mortgage. From a decree for complainants, defendants appeal.

Assumpsit by William S. Crane against Volney P. Bayley on an agreement for contribution. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Assumpsit by the State Savings Bank of Ionia against Alexander T. Montgomery on certain promissory notes. Erom a judgment for plaintiff on verdict directed by the court, defendant brings error.

Bill by George D. Hulburt against William J. Juskand Isaac N. Just, administrators of the estate of Josiah E. Just, deceased, the Ionia County Savings Bank, Dollie B. Van Devanter, and others, to enforce a mechanic’s lien. From a decree for complainant, defendant Van Devanter appeals.

Clair; Whipple, J. Mandamus by Wesley W. Brophy and others against John Schindler, Timothy O’Donnell, and others, being,, respectively, the highway commissioners of Casco and Columbus townships, and the members of the township boards, of such townships, to compel the rebuilding of a, town-line bridge. From an order granting the writ as to-the respondent officers of Casco township, such respondents bring certiorari.

Bill by Jonathan Palmer, Jr., as trustee in bankruptcy of Wright D. Smith, against Lillian A. Smith, to reach property alleged to have been conveyed in fraud of creditors. Prom a decree for complainant, defendant appeals.

Bill of interpleader by the Grand Lodge of the Ancient Order of United Workmen of the State of Michigan against Charles H. Fisk, executor of the last will and testament of James Lount, deceased, Catherine McCall, trustee under said will, and Herbert J. Lount, to determine the right to the proceeds of a benefit certificate. From a decree in favor of.defendant McCall, defendant Lount appeals.

<p>Land Contracts — Evidence—Specific Performance.</p> <p>A parol contract to convey land is held to have been sufficiently established by evidence of the statements of the vendor, and the acts and conduct of the parties, to warrant a decree for specific performance.</p>

Case made from Missaukee; Aldrich, J. Assumpsit by William W. Mitchell and Austin W. Mitchell, copartners as Mitchell Brothers, against the township of Lake, to recover taxes paid under protest. There was a judgment for plaintiffs for less than the-amount claimed, and both parties assign error.

Case by Michael J. Deering against the Canfield & Wheeler Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Mandamus by the Chapin Mining Company to compel Arthur Uddenberg, treasurer of the city of Iron Mountain, to receive a portion of a tax, and to give a receipt therefor. From an order granting the writ, respondent brings certiorari.

Mandamus by Henry R. Leonard and Annie E. Leonard to compel Robert E. Frazer, circuit judge of Wayne county, to enter an order directing a sale under a decree of foreclosure.

Mandamus by De Witt H. Moreland to compel James W. Millen, Herman F. Kallman, and Marshall H. Godfrey to surrender to relator the offices, books, papers, etc., in respondents’ custody as members of the board of public works of the city of Detroit. From an order denying the writ, relator brings certiorari.

Assumpsit by John C. Hicks against George A. Steel for money had and received. From a judgment for plaintiff on verdict directed by the court, defendant brings •error.

<p>Error to Jackson; Peck, J.</p> <p>Assumpsit by Pitts B. Ray against John McDevitt and Edward C. Morrissey on an indemnity bond. From a judgment for plaintiff, defendants bring error.</p>

Clair; Vance, J. Case by Mary Davis, administratrix^ of the estate of Charles Davis, deceased, against the Port Huron Engine & Thresher Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Error to Jackson; Peck, J.</p> <p>Trespass by Mary E. Padman against Lorenzo M. Rhodes for cutting timber. From a judgment for defendant, plaintiff brings error.</p>

<p>1. Municipal Corporations — Boards of Health — Physician's Compensation — Conolusiveness of Allowance.</p> <p>Where a city council, pursuant to charter authority, established a board of health, conferring upon it all the powers vested in township boards of health by chapter 108, 2 Comp. Laws 1897, section 2 of which authorizes such boards to regulate and audit all fees and charges of persons employed by them, an allowance by such board of the bill of a physician for services rendered under its direction is conclusive upon the city, and the amount allowed cannot be reduced by,the council, notwithstanding a general charter provision empowering the council to pass upon all claims against the city.</p> <p>2. Same — Part Payment of Claim — Estoppel.</p> <p>An acceptance by a claimant against a city of an amount allowed him by the common council, being a part only of a definite sum to which he was legally entitled, will not estop him from recovering the balance, although such payment was made and accepted with the understanding that it should constitute full satisfaction of the claim.</p>

<p>1. Intoxicating Liquors — Nonpayment oe Tax — “Wholesaler” Deeined.</p> <p>To constitute one a wholesaler of liquors, within 2 Comp. Laws 1897, § 5880, defining a wholesaler as one who sells in quantities of more than a dozen quart bottles at one time, the title to a quantity exceeding that specified must pass to the purchaser at one time.</p> <p>Hence, in a prosecution for carrying on the business of selling liquor at retail without having paid the required tax, a contention that respondent sold in quantities of more than a dozen bottles, and was therefore a wholesaler, is not sustained, where it appears that, while the purchaser may have contracted for the larger quantity in the first instance, the deliveries were made in smaller quantities from time to time, as required by the purchaser, the liquor being paid for as delivered, and no specific bottles exceeding 12 in number were at any time set apart for his use.</p> <p>2. Criminal Law — Trial—Indorsement of Witnesses on Information.</p> <p>It was within the discretion of the trial court to permit the names of witnesses to be indorsed on the information at the trial, shortly before the jury was sworn, no objection being made to the sufficiency of the showing by the prosecuting attorney.</p> <p>3. Same — Improper Statements of Prosecutor — Harmless Error.</p> <p>Where, in a criminal case, there was testimony by a number of witnesses to the material facts, which stood undisputed, a statement by the prosecuting attorney that he could make certain proof by witnesses whose names were not indorsed on the information, though it should not have been made, is not ground for reversal, since it could not have influenced the jury.</p>

Assumpsit by the James Leffel & Company against Alamanzo A. Piatt to recover the balance of the purchase price of certain machinery. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

<p>Wills — Contest—Directing Verdict.</p> <p>Where, in a will contest, the evidence shows conclusively that deceased was possessed of sufficient mental testamentary capacity, and fails to disclose any undue influence, it is entirely proper to direct a verdict.</p>

Assumpsit by Frank J. Thompson against Edgar Bronk and Edgar A. Buffington, copartners as the Bronk-Buffington Shirt Company, for work and labor. From a judgment for defendants, plaintiff brings error.

<p>Error to Wayne; Donovan, J.</p> <p>Case by Walter Carver against the Detroit & Saline-Plank-Road Company for an injury to plaintiff’s horse caused by a defect in defendant’s toll road. Prom a judgment for plaintiff, defendant brings error.</p>

Mandamus by the board of water commissioners of the city of Detroit to compel the commissioners of parks and boulevards to audit relator’s account for water furnished. From an order denying the writ, relator brings certiorari.

<p>Fraudulent Conveyances — Husband and Wife — Solvency of Grantor.</p> <p>Evidence reviewed, and held not to show that, at the time of a voluntary conveyance by a debtor, to his wife, he retained sufficient property to satisfy the claims of his creditors.</p>

Clair; Vance, J. Assumpsit by Robert Campbell against the Davidson-Martin Manufacturing Company for the breach of a contract to purchase certain machines. From a judgment for plaintiff, defendant brings error.

<p>Error to Benzie; Chittenden, J.</p> <p>Assumpsit by Elwin Bellows and Adelbert Bellows, copartners as Bellows Brothers, against the Crane Lumber Company, for expenses incurred in running logs by reason of defendant’s obstruction of the stream. From a judgment for plaintiffs for less than the amount claimed, they bring error.</p>

<p>Appeal from Wayne; Rohnert, J.</p> <p>Bill by Warren J. Niles against Joseph T.. Mason, executor of the last will and testament of Ira Niles, deceased, Charles P. Niles, Lottie Niles Jupp, Arthur Niles Jupp, Sarah M. Niles, and Charles W. Niles, for a construction of said will. From a decree sustaining the will in its entirety, complainant, and defendant Charles P. Niles, appeal.</p> <p>Ira Niles died testate, leaving three children, complainant, and defendants Charles P. Niles and Lottie Niles Jupp, a grandson, Arthur Niles Jupp, a brother, and a «ister, the defendants Sarah M. Niles and Charles W. Niles. The will is as follows:</p> <p>“I hereby grant, devise, and bequeath all my estate, real and personal and mixed, to Joseph T. Mason, of said ■city of Detroit, as trustee, and in trust for the uses and purposes herein below set forth, to wit:</p> <p>“1. To collect all rents, profits, insurance, and other moneys due the estate upon all real and personal property; to buy, sell, lease, repair, and assign any and all of my estate, both real and personal; to invest and reinvest the proceeds thereof in any manner he may deem fit; and to ■do all acts and pay all necessary expenses for the care, protection, and management of my estate in my stead.</p> <p>“2. To pay all my just debts and funeral expenses.</p> <p>“3. To pay the sum of one hundred dollars to Warren J. Niles, if he makes himself known in person to said Joseph T. Mason within two years from the date of my demise.</p> <p>“4. To pay the sum of twelve and 50-100 dollars to Sarah M. Niles upon the first day of each and every month during her life, contingent upon her remaining unmarried. Upon the event of her marriage the said legacy to cease, •and to become part of the income hereinafter provided for.</p> <p>“5. To pay annually one-half of the income from my entire estate, real, personal, and mixed, after the payments •above set forth, to my son Charles P. Niles during his life, and the other half of said income to my daughter, Lottie Niles, during her lifetime.</p> <p>“6. Upon the death of my son Charles P. Niles, to pay one-half of the principal of my estate to his children in ■equal proportions. If no issue survive him, then the same to be paid to the children of my daughter, Lottie Niles, in equal proportions, upon her death.</p> <p>“7. Upon the death of my daughter, Lottie Niles, to pay one-half of the principal of my estate to her children in .equal proportions. If no issue survive her, then the same to be paid to the children of my son Charles P. Niles in equal proportions, upon his death.</p> <p>“8. Upon the death of either of my children Charles P. Niles or Lottie Niles, leaving no issue, the entire net income of my estate shall be paid to the survivor of the two during his or her life.</p> <p>“9. In the event of the death of both of my children Charles P. Niles and Lottie Niles without issue, my entire estate, both personal and real, shall be vested in my brother, Charles W. Niles' and his heirs, forever.</p> <p>“10. The share of any grandchild who may be a minor upon the death of his father, he being my son Charles P. Niles, or of his mother, she being my daughter, Lottie Niles, shall be under the care and direction of said trustee, or his successor, as the agent of said grandchild, during his or her minority.</p> <p>“11. In the event of the death of said Joseph T. Mason, trustee, before full execution of this trust, I hereby direct that the trust pass to such person as the court of chancery may direct, as in such case under the statute made and provided.</p> <p>“12. I hereby appoint Joseph T. Mason the executor of this, my last will and testament, and desire that his. bond therefor, as well as such bond as he may be required to furnish as trustee hereof, may be merely nominal.”</p> <p>The value of the estate as per inventory was $28,325. The income from it, as shown by the testimony, is from $1,400 to $1,600 per year. The court entered a decree sustaining the will in toto.</p>

Bill by Frederick Scbulmeister against the township of Blendon, Enne Kraai, highway commissioner of said township, Robert Witters, and Ernest Eckleberg, to enjoin the opening of a highway. From a decree dismissing the bill, complainant appeals.

Bill by Mary Line, Luther M. Packard, and Albert J. Pauli against Alexander McOall and James McBurney to set aside the discharge of a judgment. From a decree dismissing the bill, complainants appeal.

Case by Charles Sargee, by next friend, against the Clark Can Company, for personal injuries. From a judgment for plaintiff, defendant brings error. Plaintiff recovered a verdict and judgment for an injury to his hand.

Assumpsit by Henry McMorran against Edmund Hall for the rental of certain chattels. From a judgment for plaintiff, defendant brings error.

Assumpsit by Abigail J. Lacbine against the Manistique Railway Company for services rendered. From a judgment for plaintiff, defendant brings error.

<p>Error to Berrien; Coolidge, J.</p> <p>Assumpsit by the Dow Law Bank against Charles H. Godfrey on certain promissory notes. From a judgment for plaintiff, defendant brings error.</p>

Mandamus by the city of Kalamazoo to compel the Michigan Traction Company to relay its track in accordance with the requirements of an amended ordinance. From an order granting the writ, respondent brings certiorari. The following are the stipulated facts in this case: 1. That the city of Kalamazoo is a municipal corporation, duly organized and existing under and by virtue of certain acts of the legislature of the State of Michigan. 2.

Case by Richard C. Sinsabaugh against Hiram M. Brown for damages caused by the running away of defendant’s horse. From a judgment for plaintiff, defendant brings error.

Assumpsit by Pliny T. Sexton against Luther Perrigo and Charles Perrigo, impleaded with Charles P. Moody, upon a promissory note. From a judgment for defendants, plaintiff brings error. The defendants Perrigo were sued as accommodation indorsers upon a promissory note owned by the plaintiff. The court made the following finding of facts: “1. The action is assumpsit against indorsers of a promissory note. Copy of note is set up in declaration.

, presiding. Replevin by Frank E. Church against George Nester and others. From a judgment for plaintiff on verdict directed by the court, defendants bring error.

<p>Error to Mecosta; Palmer, J.</p> <p>Ejectment by William D. Northrup against Albert C. Maneka. Prom a judgment for defendant, plaintiff brings error.</p>

Mandamus by the Detroit Citizens’ Street-Railway Company to compel the board of public works of the city of Detroit to grant relator a permit to put in certain switches. From an order granting the writ, respondent brings certiorari. The Detroit City Railway was organized under chapter 167, 2 Comp. Laws 1897.

<p>Appeal from Wayne; Frazer, J.</p> <p>Bill by Arthur F. Norris against Thomas B. Sargeant and Cyrus Johnston for the reformation of a deed. From a decree for complainant, defendant Sargeant appeals.</p>

Case by Cordy Schulwitz, by next friend, against the Delta Lumber Company, for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by Mary Sherman against Hinton E. Spalding for money had and received. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Case by Charles Einkbinder against Christian Ernst for the wrongful flooding of plaintiff’s lands. Prom a judgment for plaintiff, defendant brings error.

<p>1. Husband and Wife — Homestead—Estates of Entirety.</p> <p>A homestead may be claimed in. lands held by husband and wife as tenants by the entirety.</p> <p>3. Same — Fraudulent Conveyances — Consideration. v</p> <p>A conveyance by a husband to his wife, having been made in payment of money borrowed by him from her, which he had expressly promised to repay, was sustained as against his creditors.</p>

Case by Max Mahnke against Edgar A. Freer, Richard H. Phillips, and Jacob E. Goldberg for injuries caused by a collision on the highway. From a judgment for defendants, plaintiff brings error.

Assumpsit by Thomas Rose against the Supreme Court of the Order of Patricians on a benefit certificate. From a judgment for plaintiff, defendant brings error. The defendant is a fraternal beneficiary order, incorporated under the laws of Michigan. Plaintiff’s wife became a member of the order August 18, 1898, and passed the usual medical examination. She died' November Í8th following. Plaintiff was her beneficiary. Her certificate was for $1,000.

Bill by Laura E. Adams against Lydia Greig to foreclose a mortgage. From a decree for complainant for less than the amount claimed, she appeals. On September 27, 1884, the husband of the defendant purchased of complainant a piece of land situated in the city of Grand Rapids, and gave his notes for a part of the purchase price. He and his wife executed a mortgage upon the land conveyed and other lands to secure the purchase price.

Certiorari by Isaac E. Dubois against the township hoard and the highway commissioner of the township of Riley to review the proceedings of such board on an appeal from an order of the commissioner establishing a highway. From an order quashing the proceedings and requiring the board to reconvene, defendants bring error.

, presiding. Bill by Thorne Rubert against Seth B. Rubert, Mary Porter, and Pauline Rubert to stay a suit at law, to construe a will and an assignment, and to quiet title. From a decree for complainant, defendant Seth B. Rubert appeals.

Assumpsit by the St. Johns Table Company against Edward Brown on a promissory note. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Case by Rhett Gould against Albert E. Gregory for the malicious prosecution of plaintiff on a charge of statutory burglary. From a judgment for plaintiff, defendant brings error.

Ejectment by George H. Dye, Jr., and Harvey 0. Dye, against Edward H. Thompson and Mary Thompson. From a judgment for defendants on verdict directed by the court, plaintiffs-bring error.

Bill by George S. Curtiss against Peleg R. Perry and Mary Perry to foreclose a mortgage. The bill was dismissed, and from an order denying a rehearing complainant appeals.

aboll, J. Assumpsit by Jennie Richmond against Harvey Nyefor the value of chattels converted. From a judgment for plaintiff, defendant brings error.

<p>Appeal from Wayne; Rohnert, J.</p> <p>Bill by Elizabeth Tuller against the city of Detroit to set aside a special assessment. From a decree for complainant, defendant appeals.</p>

Bill by Edward Murphy against William Schoder and Kate Schoder to set aside certain deeds. The bill was dismissed, and, from an order denying his petition for leave to file a bill of review, complainant appeals.

Case by Minnie Schwandt, administratrix of the estate of Julius Schwandt, deceased, against the William Wright Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error. Defendant, a manufacturing corporation, has a dry Min, 18 feet wide and 25 feet long, extending from .its main building, used for drying lumber. At each end is a passageway about 8 feet wide.

Bill by Elizabeth E. Eagle against Robert W. S my lie, administrator of the estate of James R. Elliott, deceased,. George M. Savage, Richard William Elliott, Ralph Elliott, Edward P. Elliott, Richard R. Elliott, Adelia M. Savage, and James H. Savage, for a partition of real estate. From an order directing the payment of the proceeds of decedent’s interest to his grantee, George M.. Savage, the administrator appeals.

Case by Editb Navarre against the city of Benton Harbor for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error..

Bill by Lincoln H. Titus against E. A. Chase and others, composing the township board of the township of Waverly, and Charles W. Dayton and another, justices of the peace of said township, to compel the payment of damages for the killing of certain sheep out of the dog-tax fund. From a decree dismissing the bill, complainant appeals. .The defendants are members of the township board of the township of Waverly, and the bill is filed against them in their official capacity.

<p>1. Accounting — Rents and Profits.</p> <p>Where complainant let a farm on shares, and defendant received the rent, agreeing to keep an account thereof, but failing to do so, defendant, on an accounting, was properly-charged with the rental value of the land.</p> <p>2. Same — Appeal—Evidence.</p> <p>On appeal in an accounting, an allowance to complainant for services in procuring a conveyance of land to defendant will not be rejected on the ground that the only proof of the conveyance was complainant’s oral testimony, where such testimony was neither objected to nor disputed by defendant.</p>

Case by Amos A. Coan against the township of Browns-town for injuries to property caused by a defective bridge. From a judgment for plaintiff, defendant brings error.

Theodore Bird, Theodore Williams, Jay Lawrence, and Charles Ray were convicted under an information charging conspiracy to defraud and false pretenses. The respondents were arrested under a complaint and warrant charging them with a fraudulent conspiracy to obtain from one Thomas J. Curtis, by divers false pretenses, subtle means and devices, $300, and that by said false pretenses, etc., the respondents obtained from said Curtis $300.

Trespass quare clausum fregit by Kate L. Crawford against Daniel Ross. From a judgment for plaintiff, defendant brings error.

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

Mandamus by Justus S. Stearns, Secretary of State, to-compel the National Salt Company to file its articles of association and a resolution appointing a resident agent. From an order denying the writ, relator brings certiorari.

Mandamus by George W. Gitcbel to compel William Whipple, Jr., drain commissioner of Ottawa county, to recognize the action of a board of review in enlarging an assessment district. From an order denying the writ* relator brings certiorari.

Log-lien proceedings by Albyn Dowd against Charles S. Dowd, principal defendant, and Clarence C. Tuxbury, Charles S. Bacon, Bayard T. Bacon, and Charles M. Ayer (the last three named doing business as Bacon Bros. & Ayer), timber owners. Prom a judgment for plaintiff, defendant timber owners bring error. This suit was brought to enforce a lien for work and labor upon timber, was tried by the court without a jury, and a finding of facts and law made.

Case made from Chippewa; Steere, J. Replevin by the Michigan Lake Superior Power Company against Prank B. Atwood, treasurer of the city of Sault Ste. Marie, to recover property seized under a tax warrant. There was a judgment for plaintiff, and defendant assigns error.

, presiding. Bill by John R. Carr and Levi Lyle, executors of the last will and testament of John Lyle, deceased, against Emma V. Lyle and others, to enforce an antenuptial contract. From an order overruling a plea to the bill, defendant Emma V. Lyle appeals.

<p>Injury to Employé — Assumption of Risk.</p> <p>An employé in a shingle mill, -who had had considerable experience in and about such mills, assumed the risk of injury from the failure of the movable table of a cut-off machine, which he was operating, to clear the saw, due to an accumulation of refuse at the foot of the machine, and cannot recover therefor against his employer; the tendency of such material so to accumulate, and the probable effect thereof, being open to ordinary observation.</p>

Case by Edith Lansing, by next friend, against the Michigan Central Railroad Company, for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Injury to Employé — Assumption op Risk.</p> <p>An adult employé in a starcli factory, who, in the course of his employment, was required to step over an open conveyor containing a revolving screw, assumed the risk of contact with the screw from slipping on pulp accumulating on the floor, and cannot recover for an injury so received.</p>

Assumpsit by the First Universalist Church against William A. Pungs to recover the amount of a subscription. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Assumpsit by the Westinghouse Company against James Boyle on certain promissory notes. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by Joseph Rouleau against John G. Stradley, administrator of the estate of Alice J. Rouleau, deceased, and others, to quiet title. From a decree for complainant, defendants appeal.

Case by Christiannah Phalen against the city of Detroit for personal injuries. From a judgment for plaintiff, defendant brings error.

Assumpsit by George L. Burtis against the Munising .Company and the Lac La Belle Company, impleaded with the Munising Railway Company, to recover the balance of a saw bill. From a judgment for plaintiff, defendants bring error. In September, 1895, and for a long time prior thereto, plaintiff owned and operated a sawmill in the city of Marquette.

Bill by Mary E. Parker and others against Melissa D. Thomas to set aside an assignment of a mortgage. From a decree dismissing the bill, complainants appeal. Silas G. McIntyre, deceased, was the owner of a mortgage of $2,500 upon 80 acres of land. Complainants and the defendant are his children. On June 25, 1895, Mr. McIntyre assigned this mortgage to the defendant. There was then due upon it the sum of $2,420.

. Bill by William S. Kinsel against Lizzie E. Kinsel for a divorce. Defendant appeals from an order denying her petition for leave to file a bill of review.

Garnishment proceedings in justice’s court by Charley Johnson against the Dunn Iron Mining Company, as garnishee of Charles Bjork. Iver H. Hagen and Carl L. Solberg, copartners as Hagen & Solberg, were inter-pleaded as claimants of the fund, and, from a judgment against them, took a special appeal to the circuit court, where the decision of the justice was reversed. Plaintiff brings error.

George Boldman presented a claim against the estate of Susan Leng, deceased, for services rendered. The claim, was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for claimant, the estate brings error.

Assumpsit by Lloyd B. Harrington against Charles W. Hall for money had and received. From a judgment for plaintiff, defendant brings error. Defendant, through his agent, one Whitman, leased to the firm of Morris & Simpson, copartners, a livery barn. The lease was nontransferable. Morris & Simpson sold theii; business to plaintiff. Plaintiff knew of the provisions of the lease.

<p>Homestead — Exemption.</p> <p>A married woman owned a house and lot, where she lived with her husband, neither having any other home. The lot' was condemned by the city in street-opening proceedings, and an award of damages made to the wife, who thereupon borrowed money on an assignment of the award, and with it made a part payment on a lot for a new home, the contract being taken in the name of the husband. The second lot was vacant and unimproved, and so remained for 14 months after the purchase, when it was levied on by an execution creditor of the husband. After the levy, the wife bought the house on the first lot from the city, the parties having in the meantime continued to reside therein, and it was moved onto the new lot. Held, that such lot was exempt from execution as a homestead.</p>

Garnishment proceedings by Edward J. Bullard against Howard C. Leland and George Brown, as garnishees of Sanford C. Avery. Marinda Avery was brought in as claimant under the statute, and, from a judgment in her favor on verdict directed by the court, plaintiff brings error.

Assumpsit by Benjamin F. Schofield against John C. Conley for the purchase price of a team of horses. From a judgment for defendant, plaintiff brings error. Plaintiff resides on a farm in Clinton county. He formerly kept a livery stable in St. Johns. The defendant lives in Rhode Island. Plaintiff claims to have sold a team of horses to defendant, through one George Lake, defendant’s agent, at the price of $175. Lake paid $20, and subsequently $12.50.

<p>Mandamus by John J. Stanton to compel Joseph W. Donovan, circuit judge of "Wayne county, to vacate an order allowing an appeal from a justice’s judgment.</p>

Quo warranto proceedings by Horace M. Oren, Attorney General, on the relation of William T. Dust, against Bobert Oakman, to determine the title to the office of member of the board of State tax commissioners.