Volume 127 — Michigan Reports

Debt by the city of Eaton Rapids, for the use and benefit of Perry O. Snyder, against F. Marion Stump, as principal, and James B. Bradley and Jay W. Vaughan, as sureties, upon an official bond. From a judgment for defendants on demurrer to the declaration, plaintiff brings error.

Clair; Vance, J. Assumpsit by William W. Slingerland and Joseph M. Bradley against Wilhelmina Keyser to recover a down payment on a contract of sale' afterwards repudiated by defendant. From a judgment for plaintiffs, defendant brings error.

Bill by Amanda Brooks against James C. Sullivan, survivor of himself and Michael H. Brooks, to set aside a mortgage. From a decree dismissing the bill, complainant appeals.

Garnishment proceedings by Leopold Plaut and Herman Plaut, copartners as L. Plaut & Co., against the Billings Drew Company, as garnishee of Pulaski A. Billings. From a judgment for plaintiffs, defendant brings error.

' Case by Cynthia A. Foster against the village of Bellaire for personal injuries. From a judgment for plaintiff, defendant brings error.

Case by William Finnegan, administrator of the estate of Don Finnegan, deceased, against the Michigan Central Eailroad Company, for the alleged negligent killing of . plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.

Garnishment proceedings by Ira L. Grinnell and Clayton A. Grinnell, copartners as Grinnell Bros., against the Niagara Fire-Insurance Company, as garnishee of William S. Murray. From a judgment for plaintiffs on verdict, directed by the court, defendant brings error.' The affidavit and writ are defective, and conferred no jurisdiction upon the justice. Ettelsohn v. - Insurance Co., 64 Mich. 331 (31 N. W. 201).

Charles Laird presented a claim against the estate of James Laird, deceased, for board and attendance. The claim was allowed by the commissioners, and William C. Laird and Betsy Lockhart, heirs at law and legatees of decedent, appealed to the circuit court.’ From a judgment for claimant, contestants bring error.

Frank Webb was convicted of conveying instruments and tools into jail to assist prisoners to escape, and was sentenced to imprisonment for five years in the State house of correction at Ionia.

Case made from Bay; Maxwell, J. Assumpsit by William Schroeder against Jonathan Boyce upon a foreign judgment. There was a judgment for plaintiff, and defendant assigns error.

Assumpsit by the county of Montmorency against Edward J. Putnam, principal, and Lewis Jenson and others, sureties, on a county treasurer’s bond. From a judgment for plaintiff for less than the amount claimed, plaintiff brings error.

Clair; Vance, J. Assumpsit by the Kern Brewing Company against the Royal Insurance Company on a fire policy. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

), J., presiding. Trespass quare clausum fregit by Jacob L. Edinger against August Woodke and Henry Woodke. From a judgment for plaintiff, defendants bring error.

Bill by the'Michigan Trust Company against Charles H. Libby and others to foreclose a mortgage. Complainant appeals from an order granting the petition of defendant Libby for leave'to redeem.

Trover by Abraham Harris and Marks Harris, copartners as Harris Bros., against Charles H. Hackley. From a judgment for plaintiffs, defendant brings error. The machinery became a part of .the realty, and was •covered by the land contract.

<p>1. Chattel Mortgages—Maturity—Parol Evidence.</p> <p>A mortgage on a stock of goods, containing provisions looking to a continuance of the business by the mortgagor, the furnishing of more goods on credit by the mortgagee, the insuring and replenishing of the stock, and the payment of interest on the debt secured, but not specifying the time when such debt shall become due, cannot be said to be due presently, and hence parol evidence is admissible to show the date of maturity.</p> <p>2. Same—Fraud—Rescission.</p> <p>A chattel mortgage given in consideration of the promises of the mortgagee to extend the time of payment of the debt secured, and to grant a further credit to the mortgagor, which promises the mortgagee at the time had a fixed intention not to perform, may be avoided by the mortgagor on the ground of fraud.</p> <p>8. Same—Trusts—Rights oe Beneeiciaries.</p> <p>All of the beneficiaries in a trust mortgage are bound by the fraudulent-representations made by a part of them to induce the giving of the security.</p> <p>4. Same—Breach oe Conditions—Insurance.</p> <p>The failure of a mortgagor' of chattels to assign an insurance policy thereon to the mortgagee, as required by the terms of the mortgage, due to the fact that the policy was in the possession of the mortgagee’s agent, cannot be relied on by the _mortgagee as a breach of condition of the mortgage._</p> <p>5. Same—Insecurity Clause—Good Faith op Mortgagee.</p> <p>Whether a mortgagee of chattels was justified in taking possession under the “ insecurity clause ” in the mortgage is a question for the jury, where there is testimony tending to‘show that the security was adequate.</p> <p>6. Same—Depreciation in Stock.</p> <p>Where a mortgage on a' stock of goods gives the mortgagee the absolute right to take possession of the stock in case of the mortgagor’s failure to maintain it at a stated value above the mortgage debt, such right cannot be made to depend on the mortgagee’s belief that he was insecure.</p> <p>7. Same—Replevin—Special Questions to Jury.</p> <p>In replevin by a mortgagee, a request for a special finding by the jury as to whether the goods would have brought, “at public auction,” more than the mortgage debt, is properly refused.</p> <p>8. Contracts—Consideration—Extension op Time.</p> <p>The purchase by a partner of his copartner’s interest in the firm assets, the assumption by the former of the firm debts, and the execution by him of a chattel mortgage to secure the same, constitute a sufficient consideration for an extension of time for the payment of such debts.</p>

Albert Van Slambrook presented a claim against the estate of David W. Little, deceased, for services rendered. The claim was allowed by the probate court, and defendant appealed to the circuit, where claimant again prevailed. Defendant brings error.

, presiding. Assumpsit by Frederick1 W. Whiting, trustee, against the village of New Baltimore, for money had and received. From a judgment for plaintiff, defendant brings error.

Bill by John B. Fix, guardian of Catherine Kibbee, an incompetent, against Josephine Soleau and Lynott Blood-good, to set aside a discharge of mortgage and to foreclose the mortgage. From a decree denying the prayer of the bill, complainant appeals.

Assumpsit by John Bailey against Isaac Tompkins and Mason Norton to recover the amount of a school order. From a judgment for defendants on verdict directed by the court, plaintiff brings error. This is an action of assumpsit, brought in justice’s court..

Replevin by George Somers against Neil E. Loose. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff, by a written lease, let to defendant three' small pieces of land—one of ten acres, and the other two of three each—for one year and three months from the 9th day of May. There were no buildings upon the land. A crop of corn was to be followed by a crop of wheat.

Bill by Henry Olay Banks against Dan Allen, Mary E. Osmun, and Herman Boyd to reform certain conveyances and to quiet title. From a decree dismissing the bill, complainant appeals.

<p>Constitutional Law — Examination of Physicians — Police Power.</p> <p>* Under the police power inherent in the State, the legislature ■ may enact reasonable regulations for the examination and registration of physicians, and the practice of medicine and surgery. 1</p>

, presiding. Case by Bridget Broffee against the city of Grand Rapids for personal injuries. Prom a judgment for plaintiff, defendant brings error.

<p>Appeal from Wayne; Frazer, J.</p> <p>Bill by Thomas T. Leete, Jr., against William E. Roney to restrain the closing of an alley. From a decree for complainant, defendant appeals.</p>

Case by James Doyle against the Toledo, Saginaw & Muskegon Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Trespass by Elwin Bellows and Adelbert Bellows, co-partners as Bellows Brothers, against Digby B. Butler, for cutting timber. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.

, presiding. Case by William B. Noble against the Bessemer Steamship Company for personal injuries. From a judgment for plaintiff, defendant brings error.

Bill by the city of Mt. Clemens against the Mt. Clemens Sanitarium Company, Limited, to restrain the obstruction of a public street. From a decree for complainant, defendant appeals. There was a complete dedication in pais and acceptance of the streets shown by the- plat. 1 Comp. Laws, §■ 3383; Baker v. Johnston, 21 Mich. 340; White v. Smith, 37 Mich. 291; Plumb v. City of Grand Rapids, 81 Mich. 381, 392 (45 N. W. 1024); Village of Grandvillev.

In the matter of the estate of Charles F. Mallary, deceased : Appeal of Charles R. Greene from the allowance of the final account of Dwight N. Lowell, administrator de bonis non with the will annexed. The judgment of the probate court was substantially affirmed in the circuit, and appellant brings error. The widow took an absolute estate, at least as to the personalty.

Bill by John H. Avery and others, executors of the last will and testament of Darius N. Avery, deceased, against the Forest Lawn Cemetery Company, to enforce a judgment against defendant by the sale of its lands. The Detroit Savings Bank was permitted to intervene as a defendant. From a decree dismissing the bill, complainants appeal.

<p>Exceptions before judgment from Schoolcraft; Steere, J.</p> <p>Ludger Clement was convicted of an attempt to incite the crime of perjury.</p>

<p>Exceptions before judgment from Ottawa; Padgbam, J.</p> <p>Henry Dornbos and Gerrit Dornbos were convicted of a violation of tbe fish laws.</p>

<p>1. Homicide—Evidence—Impressions of Witnesses.</p> <p>It is error in. a prosecution for homicide to permit a witness to state her impression that respondent was envious of deceased.</p> <p>2. Samé—Testimony at Inquest—Identification—Üse in Argument.</p> <p>Where a witness in a homicide case is shown his testimony before the coroner, and admits his signature thereto, and it is -then offered in evidence and admitted without objection, it is error to refuse to allow it to be read in argument on the ground that it was not sufficiently identified.</p> <p>3. Same—Self-Defense—Disposition of Deceased.</p> <p>In a prosecution for homicide, specific acts of violence on the part of deceased towards other persons, which do not form part of the res gestae, are not admissible in support of a claim of self-defense.</p>

<p>Partnership Accounting—Appeal—Review.</p> <p>Where the determination of a partnership accounting rested on the testimony of the parties themselves, which was taken before the circuit judge, a decree awarding complainant the amount of his investment with interest, on the theory that he was unjustly expelled from the business, and that no profits had been earned, was affirmed, even though the fairness of his claim was not free from, doubt.</p>

Mandamus by Franciszck Mazurkiewicz to compel the St. Adelbertus Aid Society of Grand Rapids to reinstate relator as a member of such society. From an order granting the writ, respondent brings, certiorari. The by-law in question is void as unreasonable, and not necessary to effect the object for which the society was incorporated.

<p>1. Bankruptcy—Provable Debts — Discharge — Fraud — Fiduciary Capacity.</p> <p>Where plaintiff sold wood to defendant under a contract retaining title until payment of the purchase price, and defendant sold the wood and appropriated'the proceeds, his liability therefor was a debt provable against his estate in bankruptcy, under section 63 of the bankrupt act of 1898, as a debt founded on contract, express or implied, and was not one “created by his fraud, embezzlement, or misappropriation while acting in a fiduciary capacity,” within section 17, so as to prevent a discharge in bankruptcy from effecting his release from the liability.</p> <p>2. Same—Capias—Release op Sureties.</p> <p>Where defendant in a suit commenced by capias was re leased from the liability sought to be enforced by a discharge in bankruptcy subsequent to the commencement of suit, the sureties on his bail bond were likewise released, since their liability was contingent on a judgment’s being rendered against the principal.</p> <p>3. Same—Pleading.</p> <p>In pleading a discharge in bankruptcy, it is unnecessary to set up all of the facts essential to the jurisdiction of the bankruptcy court.</p>

Case by William B. Wyant and Judith A. Wyant against George Crouse to recover damages for the destruction of property by fire. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.

Bill by Bostwick R. Noble and James L. Benedict against John D. McKeith and Duncan A. McKeith in aid of execution. From a decree for defendants under their prayer for affirmative relief, complainants appeal.

Bill by Mary A. Sowles against Lucius H. Wilcox, George Wilcox, Alvira Wilcox, Norman Sowles, and George N, Berry to declare a conveyance absolute in form to be a mortgage, and for an accounting. From a decree dismissing the bill, complainant appeals.

Mandamus by Jesse M. Hatch, prosecuting attorney of Calhoun county, to compel Clement Smith, circuit judge of said county, to vacate an order dismissing a criminal cause, and to proceed with the trial. In 1881 the legislature passed an act to revise and consolidate the laws relative to highways and private roads. 2 Comp. Laws, §§ 4035-4192. This act is divided into 12 chapters, and covers the whole subject of the construction, maintenance, and care of public highways.

Bill by Alexis Campau and Adolph N. Marion against David A. Le Blanc, highway commissioner of the township of Ecorse, to enjoin the opening of a highway. From a' decree dismissing the bill, complainants appeal.

Charles C. Ocobock presented a claim against the estate of James Myers, deceased, based on a promissory note. The claim was disallowed in the probate court, and claimant appealed to the circuit, where he recovered a judgment. Defendant brings error.

-Bill by the Union Trust Company, receiver of Samuel G. M. Gates, against Peter Casserly, Patrick Casserly, and William Diehl, to enforce a mechanic’s lien. From a decree for complainant, defendant Patrick Casserly appeals.

Mandamus by the National Fraternity to compel George S. Hosmer, circuit judge of Wayne county, to determine the issue raised by a plea to the jurisdiction.

Mandamus by the city of Iron Mountain to compel Arthur Uddenberg, treasurer of .said city, to account for certain collection fees. From an order granting the writ, respondent brings certiorari. The relator is a city of the fourth class, organized under chapter 88, 1 Comp. Laws.

<p>Error to Kent; Perkins, J.</p> <p>Ejectment by John A. Pugh against Charles Schindler and others. Prom a judgment for plaintiff, defendants bring error."</p>

Case by Eva M. Jones, administratrix of the estate of Julian A. Jones, deceased, against the Flint & Pere Marquette Eailroad Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.

, presiding. Bill by Hugh McCurdy against school district No. 1 of the township of West Branch, Casper L. Nauman, Leander A. White, Myron H. French, Fannie A. Clark, and Curtis J. Winslow to compel the delivery of certain bonds. From a decree for complainant, defendant district appeals.

Mandamus by the Detroit, Ft. Wayne & Belle Isle Railway to compel Chase S. Osborn, commissioner of railroads, to vacate an order requiring relator to share the expense of constructing and maintaining safety appliances at a railroad crossing.

Assumpsit by Adolph E. 0. Osius, receiver of the Protective Fire Association of Detroit, against James G. O’Dwyer and Edward F. Ward, to recover the amount of an assessment. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Bill by Charles W. Calkins, receiver of the Supreme Assembly of the National Dotare, against John G. Beekman, John B.„Tackabury, and Benjamin P. Pratt, for an accounting as to an alleged trust fund. Prom a decree for defendants, complainant appeals.

Cross-appeals from St. Clair; Vance, J. Bill by the Union Trust Company against the Detroit & River St. Clair Railway, impleaded with Henry J. Robeson, to foreclose a trust mortgage. From the decree rendered, both parties appeal. The bill in this case was filed to foreclose a trust mortgage, of which the complainant was trustee. The mortgage was executed by the Detroit & River St. Clair Railway.

Bill by Bryant Walker against Annie V. Gillman for the specific performance of a land contract. From a decree for complainant, defendant appeals.

Bill by Esther E. Collins, executrix of the last will and testament of Thomas Collins, deceased, against Robert Rea and Herman Besser, impleaded with Alfred J. West and the Atlanta Town & Manufacturing Company, to restrain the removal of timber and for a partition. From a decree for complainant, defendants appeal.

Assumpsit by William H. Schultz against Julius Huffman to recover the consideration for an alleged right of drainage. From a judgment for plaintiff, defendant brings error.

Assumpsit by Lewis E. Clintsman against the Alfred J. Brown Seed Company to recover a balance due on a consignment of produce. From a judgment for plaintiff, •defendant brings error.

<p>Res Judicata—Habeas Corpus—False Imprisonment</p> <p>"Wltere plaintiff, having been arrested on a ca. sa. at the instance of defendant, sued out a writ of habeas corpus, and, on a hearing after notice to defendant under 3 Comp. Laws, § 9885, was discharged on the ground that the judgment on , which the execution issued was void, such adjudication is conclusive in a subsequent action against defendant for false imprisonment.</p>

Assumpsit by John Bollin against Frederick B. Hooper for labor performed and material furnished in the construction of a building. From a judgment for plaintiff, defendant brings error.

John M. Higgins was convicted of murder in the first degree, and sentenced to imprisonment for life in the Stata prison at Jackson.

Petition by Clark W. Youngs against David Povey, Carrie Povey, and Patrick Needham for a writ of assistance. From an order granting the writ, respondents appeal. The applicant is the owner of a tax deed dated October 4, 1897. The respondent David Povey is the original owner, and respondent Needham is his tenant. The applicant was granted a writ of assistance to put him in possession.

<p>1. Sale—Fraud—Rescission.</p> <p>Evidence that a sale of chattels was made on the purchaser’s representation that he was in as good pecuniary condition and had as good credit at the bank as ever, and could meet his paper when due; that in fact he had not as good credit at the bank as previously; and that a month later, on account of threatened suit by creditors, he formed a corporation, to which he conveyed all of his property except his home and some lots, which he conveyed to his wife,—is sufficient to support a finding of fraud in the purchase, justifying a rescission by the seller.</p> <p>2. Same—Confusion of Goods.</p> <p>Where lumber fraudulently purchased is so mingled by the purchaser with his own that it cannot be distinguished, the seller may retake an equal quantity from the common mass.</p>

<p>Mortgages—Deed as Security—Tax Titles.</p> <p>One who takes a deed of mortgaged land as security, and, by arrangement with the grantor, acquires certain tax titles for the latter’s benefit, is merely a second mortgagee, whose interest is cut off by a valid foreclosure of the first mortgage.</p>

Bill by Clarence B. Lowes, an infant, by next friend, against Miles F. Lowes, Augusta E. Lowes, Mary E. Martin, and Charles C. Pennell, to review and reverse a decree setting aside a deed. Prom a decree for complainant, defendant Martin appeals.

<p>Error to superior court of Grand Rapids; Newnham, J.</p> <p>Case by Robert L. Crawford against the Detroit, Grand Rapids & Western Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by the Hallwood Cash-Register Company against Baltis L. Millard for the price of a cash register. From a judgment for plaintiff, defendant brings error.

<p>1. Divorce—Evidence—Citing Appearance op Dependant.</p> <p>Under Circuit Court Rule No. 25, adopted by virtue of 1 Comp. Laws, § 211, the circuit judge has authority to require the defendant in a,proeonfesso divorce caseto appearand testify.</p> <p>2. Same—Declarations op Parties.</p> <p>3 Comp. Laws, § 8652, providing that no decree of divorce shall be granted solely on the declarations of the parties, refers to confessions, and not to the testimony of a party as a witness.</p> <p>3. Chancery Appeal—Review—Credibility op Witnesses.</p> <p>A certification by the circuit judge of his disbelief in the testimony adduced by a party to a chancery cause, notwithstanding the advantage possessed by such judge in seeing and hearing th^Mfcpesses, will not conclude the Supreme Court from reviewql^he case on the merits.</p>

Case made from Ingham; Wiest, J. Trover by the Warner Elevator Manufacturing Company against the Capitol Investment, Building & Loan Association. There was a judgment for defendant, and plaintiff assigns error.

<p>Mandamus by Carrie A. Dawson to compel Joseph H. Steere, circuit judge of Chippewa county, to vacate an order recalling a writ of possession.</p>

Case by Ethel Wheeler, an infant, by next friend, against the city of Detroit, for personal injuries. From a judgment for plaintiff, defendant brings error.

Case by Emily McWethy against the Detroit, Grand Rapids & Western Railroad Company for injuries sustained by reason of defendant’s failure to supply her with a proper ticket. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Case made from Chippewa; Steere, J. Replevin by the Chippewa Hardware Company, Limited, against Frank B. Atwood, treasurer of the city of Sault Ste. Marie, to recover property seized for taxes. There was a judgment for defendant, and plaintiff assigns error.

Assumpsit by the Acme Electrical Illustrating & Advertising Company against George A. Yan Derbeck to recover a balance due on a contract to install an electric plant. From a judgment for plaintiff, defendant brings error.

Assumpsit by the State Life Insurance Company of Indianapolis, Indiana, against Nathaniel E. Strong, on certain promissory notes. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by David I. Huff against John M. Cole for a commission on a sale of real estate. Plaintiff had judgment, and defendant sued out a writ of error, but died pending the hearing on appeal, and the cause was revived in the name of his executrix.

Garnishment proceedings by the Peninsular Savings Bank against the Union Trust Company, as garnishee of William P. Ratigan, the Ratigan Company, and Anton Michenfelder. Prom a judgment for defendant, plaintiff Brings error.

Replevin by John K. Stack and John Corcoran, co-partners as Stack & Corcoran, against Frederick M. Olmsted, sheriff of Delta county, for property seized on execution. From a judgment for plaintiffs, defendant •brings error.

Assumpsit by Edgar A. Halladay, administrator of the estate of Julia Oatman, deceased, against Willard C. Weeks, on certain promissory notes. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by Annette H. W.atson against Sanford Lynch, Libbie Lynch, Clarence J. Phelps, sheriff, Myron H. French, Fremont F. French, Charles Magnassan, and Leonhard Gruner and Caroline P. Ellis, executors of the last will and testament of Joseph J. Ellis, deceased, to set aside a foreclosure sale and to foreclose the mortgage. From a decree for complainant, defendants appeal. Complainant resides in Dexter, Washtenaw county.

Summary proceedings by Emma Garvey against Henry Parkhurst to recover the possession of land. Prom a judgment for defendant on verdict directed by the court, complainant brings error. This was a summary proceeding under the statute, before a circuit court commissioner, to recover possession of 40 acres of land occupied by the defendant as a farm. Both parties derived their title from the same grantor, Charles Garvey, who resided in Heckley, Miss.

Assumpsit by John H. Wetmore, administrator of the' estate of Henry A. Wetmore, deceased, against James F. Moloney and John Cosgrove, upon a promissory note. From a judgment for plaintiff, defendant Moloney brings error. On May 1, 1893, defendant Cosgrove, desiring to enter upon the business of keeping a saloon, borrowed from plaintiff’s intestate $500 with which to pay the taxes thereon, and gave the note in suit. Defendant Moloney was a joint maker with Cosgrove.

Case by George T. Abrey against the city of Detroit for injuries to a building. From a judgment for plaintiff, defendant brings error. The plaintiff had judgment for alleged injuries to his building, claimed to have been caused by the filling in of earth on the side of the roadway which was the approach to the Belle Isle Park Bridge.

, presiding. Assumpsit by Theodore Toombs against A. U. Stock-well upon a guaranty of payment for goods sold. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Justices of the Peace—Attachment—Sufficiency of Affidavit.</p> <p>An affidavit for attachment in justice’s court, setting up an indebtedness “on contract,” is not fatally defective in not specifying whether such contract is express or implied; the statute (1 Oomp. Laws, § 721) not imposing any such requirement.</p>

<p>Forgery—Order for Goods</p> <p>An order for the purchase and delivery of goods is within 3 Comp. Laws, § 11659, prescribing a punishment for the forgery of “any order, acquittance, or discharge for money or other property.”</p>

Charles Dunn presented a claim against the estate of Isaac Dunn, deceased, for the breach of a contract to convey real estate. The claim was disallowed by the commissioners, and claimant appealed to the circuit court, where he obtained a judgment. Defendant brings error.

<p>Error to St. Clair; Atkinson, J.</p> <p>Assumpsit by Christine Wallace against the Fraternal Mystic Circle on a benefit certificate. From a judgment for plaintiff, defendant brings error.</p>

Bill by Harvey H. Brown and others to enjoin John Parker and others from hunting on complainants’ land. From a decree for complainants, defendants appeal.

William R. Lyon presented for probate the last will and testament of Laura E. Dada, deceased. The will was allowed in the probate court, and Percy A. Dada, an infant, by Warner M. Baldwin, his guardian, appealed to the circuit, where probate was refused. Proponent brings error.

Bill by Eleonora Brendel and Lina Krapp against Ella Hansen, Gesina Ronnefeld, and the Home Savings Bank of Detroit for an accounting and an injunction. From a decree for complainants, defendant Hansen appeals.

Assumpsit by John O. Zabel and Thornton Dixon, co-partners as Zabel & Dixon, against the New State Telephone Company, for commissions on the sale of stock, and the breach of an agreement to furnish telephone service. From a judgment for plaintiffs, defendant brings error.

; Shepard, J. Case by the Commercial Bank of Bay City against Clarence B. Chatfield, impleaded with Ira H. Wilder, for negligence in loaning plaintiff’s funds. From a judgment for plaintiff, defendant brings error.

<p>Appeal from Manistee; McMahon, J.</p> <p>Bill by Campbell Fair against John D. Bowen, Arthur D. Bowen, and others to foreclose a mortgage. From a decree for complainant, defendant John D. Bowen appeals.</p>

<p>Execution—Jail-Limits Bond—Escape—Writ oe Ca. Sa.</p> <p>Under 3 Comp. Laws, § 10523, an action on a bond to the jail limits is barred by a voluntary return of the principal prior to the commencement of suit. Under sections 10306, 10307, when a person .has been taken on execution, no other execution can issue against him unless he has escaped, in which case he may be “ retaken ” on a new writ. Held, that where there had been a voluntary return by the principal in a jail-, limits bond, who had executed the same on being arrested under a ca. sa., the plaintiff could not affirm him out of custody by bringing an action on the bond for the alleged escape, and then, on discontinuing the action, sue out a new-writ of ca. sa.</p>

Bill by William Eddey Smith against Jennie Boyd and others to set aside certain codicils to a will on the ground of fraud, and for an accounting. From an order overruling a demurrer to tbe bill, defendants appeal.

George F. Sonner presented for probate the last will and testament of Melissa E. Terry, deceased. The will was allowed, and Charles A. Spencer and others appealed to the circuit court.- From a judgment for contestants, proponent brings error.

<p>Intoxicating Liquors — Location or Barroom—View or Bar from Street.</p> <p>2 Comp. Laws, § 5409, providing that, during the time when places where liquor is sold must be closed,, all curtains, screens, partitions, and other things that obstruct the view of the bar from the street shall be removed, is violated where a hotel barroom is located back of the office and cloakroom, so that, irrespective of any curtains or movable partitions, the bar cannot be seen from the street; and this notwithstanding the bar was maintained in the same place when the proprietor’s tax was accepted and his bond approved.</p>

<p>Error to Gogebic; Haire, J.</p> <p>Assumpsit by Richard Sleight and others against Samuel Swanson on a promissory note. From a judgment for defendant, plaintiffs bring error.</p>

Rubie Eerris presented for probate an instrument claimed to be the last will and testament of Jacob E. Embody, deceased. The instrument was allowed in the probate court, and Albert D. Neville, as administrator of the estate of said deceased, and in his own right, appealed to the circuit. From a judgment for proponent, .contestant brings error.

Assumpsit by Martenus Christopher against Emanuel Hechheimer and another for salary as traveling salesman. From a judgment for plaintiff, defendants bring error.

Bill by Samuel R. Gregory and Jennie B. Gregory against the city of Ann Arbor and Leonhard Gruner to set aside a special assessment. From a decree dismissing the bill, complainants appeal.

Assumpsit by Henry B. Pollock, Charles A. Pettibone, and William H. Chapman, copartners as Pollock, Petti- ' bone & Chapman, against the German Fire-Insurance Company of Pittsburg, Pennsylvania, on a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiffs bring error. Cited, to the point that there can be no such thing as a verbal waiver o'f the provisions of the standard policy: Kytev.

Assumpsit by the Dowagiac Manufacturing Company against John H. Cor bit and Edgar L. Valentine, copartners as Corbit & Valentine, for the breach of a contract to sell plaintiff’s machines. From a judgment for defendants, plaintiff brings error.

. Error to Oakland; Smith, J. Certiorari by John R. Wixom to review the proceedings of A. B. Bixby, drain commissioner of Oakland county, in the matter of establishing a drain. From an order dismissing the writ, plaintiff brings' error.

<p>Authority of Governor—Employment of Counsel—Drafting Laws.</p> <p>Tlie governor has no authority to employ counsel, at the expense of the State, to assist in drafting laws and proposed amendments to the Constitution.</p>

_ Mandamus by Harry F. Chipman to compel the board of auditors of Wayne county to audit and allow a claim for services as sheriff. From an order denying the writ, relator brings certiorari.

Case by August Eormall, administrator of the estate of Paul Eormall, deceased, against the Standard Oil Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.

Bill by John C. Gauntlett, Charles A. Chamberlin, and others against the Sea Insurance Company, the Reliance Marine Insurance Company, the Marine Insurance Company, Limited, and Charles A. Macdonald and J. J. Rardon, copartners as C. A. Macdonald & Company, for the specific performance of an alleged contract for marine insurance. From a decree for complainants, defendants appeal.

Bill by William C. Johnson and another, trustees, against August Pfefferle and others, to reform a deed. From a decree dismissing the bill, complainants appeal.

Assumpsit by the village of Howell against Thomas Gordon, Jr., agent for Hosea Rogers, to recover a personalty tax. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

, presiding. Debt by Anna Maria Thompson and William M. Thompson, trustees, etc., against the village of Mecosta, upon a municipal bond. From a judgment for plaintiffs, defendant brings error.

Mandamus by George R. Mathews to compel the board of education of school district No. 1 of the city and township of Kalamazoo to admit relator’s children to the public schools. From an order granting the writ, respondent brings certiorari.

Attachment proceedings by Robert Nangas against Robert Boulton under the log-lien law. David C. Pelton and William Reid, copartners as Pelton & Reid, intervened as owners of the logs. From a judgment for plaintiff on verdict directed by the court, the interveners bring error.

Submitted April 17, .1901. Assumpsit by the Anderson Carriage Company against William A. Pungs for goods sold and delivered. From a judgment for plaintiff, defendant brings error.

Assumpsit by William Johnson against Charles E. Henry for work and labor performed under an express contract. From a judgment for plaintiff, defendant brings •error.

<p>Mandamus by William O’Connor to compel Perry P. Powers, auditor general, to cancel a tax deed and refund tbe purchase money.</p>

Error'to Calhoun; Smith, J. Debt by Birdie Hollenbeck against Edward Breakey and others upon a bond in bastardy proceedings. From a judgment for plaintiff, defendants bring error.

Assumpsit by Jesse B. Davis against the Michigan Mutual Life-Insurance Company for the breach of, a contract of employment. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by Edward Frohlich against Margaret Carroll, William Cocker line, the Yeomans Lumber & Box Company, Henry C. Weber, and others to enforce a mechanic’s lien. From a decree for complainant and defendant lienors, defendant Carroll appeals. To the point that defendant’s husband was her agent to such an extent as to permit a lien to attach, counsel cited: Phil. Mech.

<p>1. Life Insurance—Change of Beneficiary.</p> <p>The fact that a life-insurance policy provides that the production thereof by the company, and of a receipt in full, signed by any person furnishing proof satisfactory to the company that he or she is an executor or administrator, husband or wife, a relative by blood, or lawful beneficiary of the insured, shall be conclusive evidence that such sum has been paid to and received by the person entitled thereto, and the further fact that the policy is by its terms payable to “one of the persons” above described, do not obligate the company to change a beneficiary on the designation of another.</p> <p>2. Same.</p> <p>Where the beneficiary in a life-insurance policy, the insured, and the latter’s sister agree in writing, on a blank furnished by the company, reciting a valuable consideration, that the sister shall be substituted as beneficiary, and the sister thereafter pays the premiums, she acquires such an interest in the policy as cannot be devested by the act of the insured in designating a new beneficiary under a claim that the sister has failed to perform her agreélnent to support him.</p>

<p>1. Deeds—Dower—Release—Ackno wledgment.</p> <p>3 Comp. Laws, § 8930 (being section 13, chap. 66, Rev. Stat. 1846 ), provides that a married woman may bar her right of dower by joining in a deed of conveyance with her husband, and acknowledging the same “as prescribed in the preceding chapter.” Held, that, notwithstanding the after repeal of the particular provision to which this section refers, a deed executed by husband and wife, not acknowledged by the ' wife, is insufficient to bar dower.</p> <p>2. Same—Rescission—Marketable Title.</p> <p>Where complainant received from defendant, pursuant to a contract for an exchange of lands, a deed purporting to be executed and acknowledged by defendant and his wife, but in fact signed and acknowledged by the wife in blank, and without reference to any particular lands, and filled in by defendant after the wife’s refusal to execute a deed of the land in question, complainant could rescind the transaction and enforce a reconveyance, as he was entitled to a marketable title.</p> <p>3. Mortgages—Bona Fide Holder—Precedent Debt.</p> <p>One who takes a note and mortgage as additional security for a pre-existing debt, without releasing any security already held or agreeing to extend the time of payment, is not a bona fide holder for value.</p>

<p>Error to St. Clair; Vance, J.</p> <p>. Ejectment by the State of Michigan against the Lake St. Clair Fishing & Shooting Club and David A. Whitney. From a judgment for plaintiff, defendants bring error.</p>

Mandamus by the city of Detroit and Thomas M. Lucking, receiver of taxes, to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate a temporary injunction restraining the collection of a personal tax.

Charles E. Walts presented for probate the last will and testament of Peter Walts, deceased. The will was disallowed in the' probate court on a contest by William H. Walts and others, heirs at law of deceased, and Ann C. Walts, widow and sole legatee, appealed to the circuit court, where the will was sustained. Contestants bring error.

Assumpsit by Michael B. Cronin and Thomas Cronin, for the use and benefit of Milton M. Rose, against the Eire Association of Philadelphia, on a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.

Assumpsit by Isaac L. Lanford, Joseph S. Armstrong, and Ray E. Armstrong, copartners as the Masonville Hoop Company, against the United States Wooden-Ware Company, for the breach of a contract of purchase. Erom a judgment for plaintiffs, defendant brings error.

Bill by Harriet L. Convis and others against the Citizens’ Mutual Fire-Insurance Company of Calhoun county, and Delilah Forshey, to determine the rights of the several parties under a policy of insurance. From a decree for complainants, defendants appeal. Complainants are the heirs of John Forshey, deceased. The defendant Delilah Forshey is his widow. They were married in September, 1894, when he was 86 years old and she was 50. He died three months afterwards.

<p>1. Sale—Warranty—Breach—Notice.</p> <p>A condition in a written warranty on the sale of a machine, requiring the purchaser to notify the seller, as well as the latter’s local agent, of any defects therein, is not sufficiently complied with by notice to the agent alone, in the absence of a waiver of further notice.</p> <p>2. Same—Parol Evidence.</p> <p>Where a written warranty was given on a sale of chattels, evidence of previous parol agreements in the nature of warranties is inadmissible.</p>

Albert Radley was convicted of being a disorderly person, and sentenced to imprisonment for 90 days in the Detroit House of Correction, and to pay a fine of $100 . and costs.

Assumpsit by Mary J. Irwin against tbe Pboenix Accident & Sick Benefit Association upon a policy of insurance. Prom a judgment for plaintiff on verdict directed by the court, defendant brings error.

Assumpsit by the Taylor-Woolfenden Company against James J. Atkinson for goods sold and delivered. From a judgment for plaintiff, defendant brings error.

<p>1. Fire Insurance—Breach of Conditions of Policy— Construction of Statute.</p> <p>2 Comp. Laws, § 5180, providing that no policy of fire insurance shall thereafter be declared void by the insurer for the breach of any condition thereof if the insurer has not been injured by such breach, or where a loss has not occurred during or - by reason of such breach, covers all policies issued in this State after the act went into effect, irrespective of whether they are Michigan standard policies or not.</p> <p>2. Same—Constitutional Law—Right to Make Contracts.</p> <p>Such statute is not unconstitutional as depriving fire-insurance companies of the right to make contracts not immoral or contrary to public policy, since, such companies being creatures of statute, the legislature may prescribe the forms of their contracts, and the limitations in relation to the forfeiture clauses therein.</p> <p>3. Same—Obligation of Contracts.</p> <p>Nor, being confined in its operation to policies subsequently issued, can it be said to impair the obligation of contracts.</p> <p>4. Em® Insurance—Breach oe Condition as to Watchman.</p> <p>In view of such statute, a policy conditioned on the keeping of a watchman on the premises continuously is not invalidated by the fact that none is employed on Sundays, so as to prevent a recovery for a loss occurring on a week day.</p> <p>5. Same—Warranty—Construction.</p> <p>An application for insurance on a mill contained an agreement by the applicant “ to keep a watchman on the premises at all times when not in operation,” and provided that the statements in the application should be regarded as continuing warranties. The policy issued thereon made the application a part of the policy, but did not expressly provide that failure to keep a watchman should render the policy void. Held, that where the insured employed a competent watchman, and charged him with the duty of watching the premises, the fact that the watchman absented himself in the night-time, without the knowledge of the insured, for more than an hour, during which time the property took fire and was destroyed, did not release the company from liability, since the agreement in question should receive a reasonable interpretation, and a substantial compliance therewith was sufficient.</p> <p>Grant, J., dissenting.</p>

Assumpsit by the West Michigan Furniture Company against the Diamond Glue Company for a breach of warranty on a sale of chattels. From a judgment for plaintiff, defendant brings error.

Assumpsit by William L. Housding against Leo Solomon for tbe breach of a contract of sale. From a judgment for plaintiff, defendant brings error.

Bill by Willis Baldwin to enjoin the Erie Shooting Club from interfering with his passage over certain submerged lands of defendant. From the decree rendered, both parties appeal.

<p>Appeal—Evidence—Review.</p> <p>A decree setting aside a deed on the grounds of mental incompetency and undue influence was reversed on the facts.</p>

, presiding. Bill by Johial Warner against Edwin H. Bliven and others to enforce a vendor’s lien. From a decree dismissing the bill, complainant appeals.

Bill by William B. Seymour, administrator of the estate of Frances E. Wallace, deceased, against Jacob L. Wallace and Elizabeth Gates, to subject certain property to . the payment of decedent’s debts. From a decree for complainant, defendants appeal.

<p>Injury to Employe—Obvious Danger.</p> <p>Plaintiff had been employed by a gaslight company for several years in laying service pipes and occasionally in taking up street mains. The superintendent of the company started plaintiff and others at putting in a main, and then went away, and the plaintiff thereafter left temporarily. On his return he found the trench, about five feet deep, fully dug, and, without any directions, got down into it, to put in a reducer, when the earth gave way, and he was injured. Plaintiff and his witnesses testified that the sides of the trench looked perfectly sound. The company had shoring, which the men might use as needed. ' Held, that the fact -that shores were not put in did not entitle plaintiff to recover, as the danger was as apparent to him as to any one.</p>

Case by Ella A. Glasier against the city of Ypsilanti for personal injuries. From a judgment for plaintiff, defendant brings error.

<p>1. Building and Loan Associations—Mortgages—Conflict of Laws—Place of Contract.</p> <p>A contract whereby a resident of Michigan becomes a stockholder in a Minnesota building and loan association, and takes out a loan secured by mortgage on property in Michigan, which contract is by its terms to be performed in Minnesota, there being no intention that any part of it shall be performed in Michigan, is a Minnesota contract, and governed by the laws of that State.</p> <p>2. Same—Stock Dues—Reduction of Indebtedness.</p> <p>Payments made to a building and loan association by a borrowing member as stock dues do not ipso facto operate as a reduction of the debt.</p> <p>3. Same—Insolvency—Pleading.</p> <p>An averment that a building and loan association is unable to repay to its members more than 50 per cent, of what they have paid in on their stock sufficiently alleges its insolvency.</p> <p>4. Same—Voluntary Liquidation—Acquiescence of Members— Foreclosure.</p> <p>Where the directors and a majority of the stockholders of a building and loan association determine to go into liquidation by reason of its insolvency, a borrowing member who has acquiesced in the plan, and stopped his payments, cannot successfully resist the foreclosure of a mortgage given by him to secure the loan on the ground that he is not in default.</p> <p>5. Same—Accounting.</p> <p>Where a building and loan association becomes insolvent, so that it is unable to carry out its contract with a borrowing member, the latter should be charged with the amount loaned, with interest at the legal rate, and credited with interest and premiums paid, but not with payments on stock.</p>

<p>Deeds—Description oe Premises.</p> <p>A deed describing the land conveyed as bounded on the north by the lands of W. and 1ST., on the east by the land of S., and on the west by a quarter-section line, does not include a strip lying between the lands of W. and N., and immediately south of a north and south highway further dividing their premises.</p>

Bill by Maude Wilson against Frederick Addison, Anna Addison, and Charles Addison in aid of execution and to reach other assets of the debtor. From an order overruling her demurrer to the bill, defendant Anna Addison appeals.

Mandamus by Frank Heineman to compel Daniel F. Sullivan, drain commissioner of Monroe county, to issue orders for the payment of .certain drain contracts. From an order granting the writ, respondent brings certiorari.

<p>Appeal from Cass; Carr, J.</p> <p>Bill by John W. Jones against Jessie C. Jones for a. divorce. From a decree for complainant, defendant appeals.</p>

Assumpsit by John M. Travis against Henry Stevens for support furnished to defendant’s wife. From a judgment for plaintiff, defendant brings error.

Assumpsit by the Maine Mile-Track Association against George H. Hammond, Jr., individually and as administrator, to recover the amount of a check. Prom a judgment for defendant, plaintiff brings error.

Petition by Tubal C. Owen for the appointment of an administrator de bonis non of the estate of Eber B. Ward, deceased. The petition was denied in the probate court, and petitioner appealed to the circuit, where the order of the probate court was affirmed. Petitioner brings error.

Bill by the Steuben County Wine Company against Horace D. Lee, Ora E. Alton, and others in. aid of execution. From a decree dismissing the bill, complainant appeals.