Volume 128 — Michigan Reports

<p>Error to Jackson; Peck, J.</p> <p>Case by Michael "Wellihan against the National Wheel Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by George M. West against Rodolpb A. Demme for commissions on a sale of real estate. From a judgment for plaintiff, defendant brings error.

Debt by Richard B. Robbins, judge of probate of Lena-wee county, for the use and benefit of Frederick B. Wood, administrator de bonis non, with the will annexed, of the estate of David D. Meeker, deceased, against Walter C. Burridge, principal, and Peter B. Sutfin and John Linton, sureties, on an administrator’s bond. From a judgment for plaintiff on verdict directed by the court, defendant sureties bring error. Reversed.

Mandamus by Amie Berube and others to compel Peter Wheeler, highway commissioner of the township of Mikado, to rebuild a bridge. From an order granting the writ, respondent brings certiorari. August 3, 1900, 23 freeholders of the township of Mikado addressed a petition to the respondent, the highway commissioner of said township, for the construction of a bridge which had been washed away. Respondent returned the petition without comment.

Bill of interpleader by the Detroit Savings Bank against William A. Haines, receiver of the Supreme Commandery of the United Friends of Michigan, and the Germania • Loge, No. 1, des Deutschen Orden von Detroit, to determine the title to a deposit. From a decree in favor of defendant Germania Loge, defendant Haines appeals.

<p>1. Injury to Employe — Negligence—Question for Jury.</p> <p>Plaintiff:, an employé in defendant’s factory, was injured while operating a double wabble saw, consisting of two saws placed side by side, separated only by a thin washer. The declaration alleged that pieces of timber being worked would become wedged between the saws, thereby throwing the hands of the operator upon the saw, of which defendant had notice, but failed to warn the plaintiff. The evidence tended to show that the saw was dangerous to operate for the reason stated in the declaration, and that plaintiff, while accustomed to work about machinery, had had no experience with such a saw, did not know its dangerous character, and was not informed thereof by defendant. Held, that the cause was properly submitted to the jury.</p> <p>2. Same — Assumption op Risk.</p> <p>The fact that plaintiff knew that a single saw had at first been used to do the work, and that the double saw had been substituted therefor, did not necessarily show that he assumed the risk of operating the double saw, if he was not aware of its dangerous character.</p> <p>3. Same.</p> <p>And whether the danger in using the saw was so apparent that plaintiff was chargeable with knowledge thereof, and therefore assumed the risk, was a question for the jury.</p> <p>4. Same — Contributory Negligence.</p> <p>The fact that the injury was caused in part by the defective condition of the table on which the saw was operated, and that plaintiff had knowledge of such condition, did not conclusively establish his contributory negligence.</p>

<p>Deeds — Reformation—Evidence.</p> <p>Defendant conveyed a parcel of land by metes and bounds, the deed reciting the same to be about an acre in quantity. He subsequently platted the tract embracing said parcel, the land conveyed forming a part of lot 21 as platted, which lot was about an acre in size. Complainant purchased from the grantee, supposing that it was acquiring title to the whole of lot 21, and afterwards filed a bill to enforce a conveyance of the remainder of the lot, claiming that the entire lot was intended to be conveyed by the original deed; and, it appearing from the direct testimony on the subject, the after-occupancy of the land, the payment of the taxes thereon, the subsequent conduct of defendant, and his various dealings in relation to the remaining property, that such was the intention of the parties, relief was granted accordingly.</p>

Assumpsit by Peter D. Long against John Pruyn for breach of warranty on a sale of fruit trees. From a judgment for plaintiff, defendant brings error.

<p>Error to Saginaw; Beach, J.</p> <p>Case by William Jarvis against the Mint & Pere Marquette Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by Otto Scholtz against Julius Freud and Robert McKinney, copartners as the American Potato Flour Company, Limited, for goods sold and delivered. From a judgment for plaintiff, defendant Freud brings error.

Mandamus by Manfred Hill, executor of the last will and testament of William Jenkinson, deceased, and William Frakes and Grace Hartman, legatees under said will, to compel James E. White, judge of probate of Kalamazoo county, to vacate an order of allowance for the support of decedent’s widow during the administration of the estate. From an order denying the writ, relators bring certiorari.

, presiding. Bill by the Belding Land & Improvement Company against the city of Belding, its mayor and common council, tho Citizens’ Light Company, and the Spencer Electric Light & Power Company, to enjoin the carrying out of a municipal contract. From a decree dismissing tho bill, complainant appeals.

<p>Mandamus by the Citizens’ Life-Insurance Company to compel James V. Barry, commissioner of insurance, to issue a certificate renewing relator’s authority to do business.</p>

Bill by Etta Ream and Daniel Boyden against Issachar N. Robinson, Albert M. Robinson, and Rachel Holbrook to set aside a deed, and for an accounting and a partition. From a decree dismissing the bill, complainants appeal.

Case by Mathias K. Miller, administrator of the estate of Eelix Miller, deceased, against the township of Meade, for the wrongful death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.

Bill by James B. Judson against the Stonington Mining Company to wind up its affairs. From an order setting aside a sale hy the - receiver, on the petition of Joseph Croze, .complainant appeals. In May, 1895, complainant filed a bill in chancery to wind up the. affairs of the defendant corporation. It owned the west half of section 10, township 52 N., range 36 W. The land was conveyed to the company in 1854. The company was organized December 1, 1854.

Assumpsit by the City of Grand Haven against the United States Fidelity & Guaranty Company, impleaded with John Cook, upon an official bond. From a judgment for plaintiff, defendant brings error.

<p>Appeal from Ingham; Wiest, J.</p> <p>Bill by Newton Ramsdell against John Ramsdell and others to set aside a deed. From a decree for complainant, defendant John Ramsdell appeals.</p>

Case by Russell E. Brown against Hernán G. Barlow, Frank E. Pulte, and Frank W. Ball, cemetery commissioners of the city of Grand Rapids, for the alleged wrongful removal of the remains of plaintiff’s wife. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Bill by Annie Woolsey Lawrence against Electa A. Hathaway to set aside a foreclosure sale and for an accounting. From a decree dismissing the bill, complainant appeals.

Assumpsit by Duncan McLeod against Patrick Hunt and Mary Hunt to recover the amounts due on a land contract and a promissory note. From a judgment for defendants, plaintiff brings error.

Assumpsit by Cicero J. K. Stoner against Fred F. Riggs for services performed and moneys expended. From a judgment for plaintiff, defendant brings error.

Case made from Ingham; Wiest, J. Assumpsit by the McCormick Harvesting-Machine Company against Scott Waldo to recover the value of chattels alleged to have been converted by defendant. There was a judgment for defendant, and plaintiff assigns error.

Action by Nellie L. Metcalf against Richard A. Moore. There was a judgment for plaintiff, and, a ca. sa. having been issued, a supersedeas was allowed, to set aside which plaintiff brings certiorari.

. Certiorari by Eli L. Hackett to review the action of Alonzo M. Brown, drain commissioner of Saginaw county, Newton Burns, drain commissioner of Gratiot county, and Charles J. Sparks, probate judge of Saginaw county, in the matter of establishing a drain. From a judgment for defendants, plaintiff brings error.

Trover by Jacob Dietrich and Leo Dietrich against Benjamin Hoefelmeir. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.

Case by Sarab Rouse, administratrix of the estate of Henry Rouse, deceased, against the Detroit Electric Railway, for the alleged negligent killing of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.

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

<p>Exceptions before judgment from Hillsdale; Chester, J.</p> <p>F. P. Bunker was convicted of violating a municipal ordinance relating to itinerant traders.</p>

Mandamus by the Jackson & Suburban Traction Company and the city of Jackson to compel Chase S. Osborn, ■commissioner of railroads, to vacate an order requiring the construction of an overhead crossing.

Bill by Joseph B. Tomlinson against George Cornett,’ William H. Cornett, Susan Cornett, Leverett C. Adams, Eugene Pringle and Adolphus E. Hewett, copartners as Pringle & Hewett, Eugene Pringle, individually, and Barnabas C. Hatch, for an accounting. From a decree for complainant, defendants appeal.

Assumpsit by Daniel B. Hutchins against school district No. 1 of Colfax township for wages as teacher. From a judgment for plaintiff, defendant brings error.

Charles T. Baker presented a claim against the estate of George T. Halleck, deceased, on a promissory note. The claim was disallowed in the probate court, and claimant appealed to the circuit, where he obtained a judgment. Defendant brings error.

Assumpsit in justice’s court by Robert Lemon against Caleb Hampton. There was a judgment for plaintiff, and defendant removed the cause to the circuit by certiorari, where the judgment was reversed. Plaintiff brings error.

<p>Appeal from Wayne; Donovan, J.</p> <p>Bill by the Detroit Union Railroad Depot & Station Company against the Fort Street Union Depot Company, the Flint & Pere Marquette Railroad Company, the Detroit, Grand Rapids & Western Railroad Company, the Canadian Pacific Railway Company, and the Wabash Railroad Company, to obtain a construction of a lease. From a decree for defendants, complainant appeals.</p>

Bill by Longley, Low & Alexander against the Amazon Hosiery Company, the Amazon Knitting Company, Charles H. Hackley, and Thomas Hume, to establish a right to share in the assets of an insolvent debtor. From a decree dismissing the bill, complainant appeals.

Creditors’ bill by the Franklin Needle Company, William D’Olier, and Henry D’Olier against the Amazon Hosiery Company, the Amazon Knitting Company, Charles H. Hackley, and Thomas Hume. From a decree dismissing the bill, complainants appeal.

Mandamus by the board of supervisors of Kent county to compel John A. Verkerke to pay over certain moneys to his successor in the office of county treasurer. From an order denying the writ, relator brings certiorarit

Bill by Frank E. Brown and John Sehler against Augustus Burney and the Shiawassee County Bank to set aside a mortgage foreclosure and to foreclose a subsequent mortgage. From a decree for complainants, defendant bank appeals.

<p>Exceptions before judgment from superior court of Grand Rapids; Newnham, J.</p> <p>William M. Butts was convicted of embezzlement.</p>

Bill by William T. Johnston, James Stewart, and the King Carpet-Sweeper Company against Charles King, Walter E. Moore, and the Automatic Sweeper Company for specific performance of contract. From a decree dismissing the bill, complainants appeal.

Assumpsit by James Shavalier against the Grand Rapids Bark & Lumber Company for money had and received. Prom a judgment for plaintiff, defendant brings error.

<p>Error to Wayne; Carpenter, J.</p> <p>Replevin by the Pinkerton Bros. Company against Joseph H. Bromley. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by Edward P. Castner against Lewis Gr. Darby to recover the value of chattels converted. From a judgment for plaintiff, defendant brings error.

Assumpsit by Robert C. Lowry against the Saginaw Specialty Company for the breach of a contract to manufacture certain boxes. From a judgment for plaintiff, defendant brings error.

Case by Michael O’Meara against Thomas Merritt for an alleged illegal search of plaintiff’s dwelling-house. From a judgment for defendant, plaintiff brings error.

Bill by Kate M. Cline and Leo E. Cline against Philip L. Wixson and Walter S. Wixson to set aside a foreclosure sale. From a decree for defendants, complainants appeal. One Jane Cline died intestate August 28, 1892, leaving five children, viz., William M., Sewell, and John Cline, and Lillian Carey and Selina Burch. Her husband, Jacob Cline, also survived her. Sewell Cline died June 8, 189?. Complainant Kate Cline is his widow, and complainant Leo is his son.

Trespass by Roswell Hart, guardian of Maria Hart, an incompetent, against Stephen Doyle, for cutting timber. From a judgment for plaintiff, defendant brings error.

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

Assumpsit by Anna Grabowsky against Joseph Baumgart to recover the purchase price of a stock of goods. From a judgment for plaintiff, defendant brings error.

<p>1. Ejectment — Equitable Title — Validity of Government Patent.</p> <p>An equitable claimant to real estate, whose claim is prior to a government patent therefor issued to an adverse claimant, cannot attack the validity of the patent in ejectment, but must seek his remedy in equity.</p> <p>2. Same — Adverse' Possession.</p> <p>The failure of a plaintiff in ejectment to show a legal paper title becomes unimportant where he establishes a complete title by adverse possession.</p> <p>3. Tenancy in Common — Adverse Possession — Ouster.</p> <p>Where the owner of land conveys an undivided interest therein, taking back a mortgage for the purchase price, which he assigns to a third person, his subsequent occupancy cannot be said to be adverse to his co-tenant, in the absence of a clear showing of ouster.</p> <p>4. Ejectment — After-Acquired Title.</p> <p>A plaintiff in ejectment cannot recover on a title acquired subsequent to the date of ouster alleged in his declaration.</p> <p>5. Tax Sales — Prospective Statute.</p> <p>The tax law of 1885 (Act No. 153) was prospective only in its operation, and.a sale thereunder for taxes previously assessed was void.</p> <p>6. Same — Validity of Decree — Dollar Mark.</p> <p>A tax deed is void where the decree on which it is based, by reason of the omission of the dollar mark, fails to show that any sum of money was adjudged against the land.</p> <p>7. Same — Subpcena.</p> <p>A decree of sale in a tax proceeding under the law of 1889 (Act No. 195) was void where no subpoena was issued to the delinquent tax payer, a resident of the State.</p> <p>8. Same — Certificate of Error.</p> <p>A tax deed may be impeached in an action of ejectment by a certificate of error issued by the auditor general under 1 Comp. Laws, § 3921.</p> <p>9. Same — Vested Bights — Adverse Possession.</p> <p>Whether such certificate may be effective in a case where the claimant under the deed has occupied adversely for the five-year period of limitations prescribed by the statute, — qucere</p>

, presiding. Quo warranto proceedings by George M. Valentine, prosecuting attorney of Berrien county, on the relation of Gus M. Dudley, against the Berrien Springs Water-Power Company, to determine the validity of a franchise to dam a navigable stream. From a judgment of ouster on demurrer to the plea, respondent brings error. Appeal from Berrien; Peck, J., presiding. Submitted April 16, 1901. Decided September 25, 1901.

Clair; Atkinson, J. Summary proceedings by Sarah A. H. Chapman against Michael Nehman to recover the possession of land. From a judgment for complainant, defendant brings error.

Eeplevin by James Ferguson against Amelia Arthur. From a judgment for plaintiff, defendant brings error.

Replevin by the H. M. Tyler Lumber Company against John Charlton, Thomas Charlton, and Justus A. Rogers. From a judgment for plaintiff on verdict directed by the court, defendants bring error.

Bill by Stephen L. Munroe- against William Winegar, Luman Jenison, Lucius Jenison, and the First National Bank of Grand Rapids to quiet title. From a decree for complainant, and an order denying a rehearing, defendants appeal.

Assumpsit by Emma O. Jamison against Samuel S. Ramsey for breach of promise of marriage. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

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

<p>1. Insurance — Sick Benefits — Proofs of Claim — Waiver.</p> <p>Where a sick-benefit insurance company had its own physician examine into a policy-holder’s condition during his illness, and, before the time for filing proof of disability had elapsed, notified such holder that nothing would be paid him, because he had a disease not covered by his policy, and because not entirely confined to the house, it was not necessary for such holder to furnish the proofs of claim provided for by the policy before bringing suit thereon.</p> <p>2. Same — Severity of Illness — Right to Indemnity.</p> <p>Under a sick-benefit insurance policy entitling the insured, in case of total and continuous disability to attend to business, to a specified weekly indemnity while “ continuously confined to the house, and subject to the personal calls of a physician,” the right to indeinnity for the period of such disability is not lost by the fact that the insured occasionally left the house for consultation with, or by direction of, his physician, and even, under the latter’s advice, went to a distant city for a stay of several weeks. Hooker, J., and Montgomery, O. J., dissenting.</p> <p>3. Character oe Disease — Question eor Jury.</p> <p>Whether a given .person was afflicted with consumption or another disease is, on conflicting testimony, a question for the jury.</p>

<p>Error to Kalamazoo; Adams, J.</p> <p>Assumpsit by Theron T. Sebring against Charles H. Hazard on a promissory note. From a judgment for defendant, plaintiff brings error.</p>

■ Bill by the Michigan Central Railroad Company to enjoin the Pere Marquette Railroad Company from violating the traffic provisions of a contract for the joint use of premises. From a decree dismissing the bill, complainant appeals.

, presiding. Bill by Joseph L. Dyer against Frank Skadan, administrator of the estate of Mary J. Dyer, deceased, and others, to restore a lost deed. From a decree dismissing the bill, complainant appeals.

Quo warranto proceedings by Horace M. Oren, attorney general, on the relation of William C. Maybury and others, to determine the right of Robert E. Bolger to hold the office of commissioner of parks and boulevards of the city of Detroit.

<p>Error to Livingston; Smith, J.</p> <p>Assumpsit by Jennie Hallett against Thomas Gordon, Jr., for fraud and deceit. From a judgment for plaintiff, defendant brings error.</p>

Case by- Levi Merritt against William A. Foote, receiver of tbe Jackson Street-Railway Company, for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error. The plaintiff sued defendant to recover for injuries received by him when attempting to cross the street-car track of the defendant. The circuit judge directed a verdict in favor of defendant.

<p>Error to superior court of Grand Rapids; Wolcott, J., presiding.</p> <p>Case by William B. Weston against the Grand Rapids Publishing Company for libel. From a judgment for plaintiff, defendant brings error.</p>

Mandamus by Charles W. Foster, circuit court commissioner of Ingham county, to compel Howard Wiest, circuit judge of said county, to allow a claim for compensation. The receiver of the Central Michigan Savings Bank tendered his resignation, and filed his account with the circuit court for the county of Ingham, in chancery.

Mandamus by the common council of the city of Detroit to compel John A. Schmid, city clerk, and De Witt H. Moreland, commissioner of public works, to take the necessary steps for a city election. From an order denying the writ, relator brings certiorari. Mandamus by Augustus Ruoff and others to compel the common council of the city of Detroit and William C. Maybury, mayor, to order á special election. From an order granting the writ, respondents bring certiorari.

<p>Arrest — Capias—Sufficiency of Affidavit.</p> <p>Where the allegations of an affidavit for a capias ad respondendum were indefinite and uncertain in character, and were not made on the personal knowledge of the affiant, the writ was properly quashed.</p>

Case by Fred 0. Baldwin against the Grand Trunk Railway Company of Canada for personal injuries. From a judgment for plaintiff, defendant brings error. No objection is made to the statement in appellant’s brief.

Trespass quare clausum fregit by the Kent County Agricultural Society against Daniel K. Ide and Steven S. Parr, impleaded with John Makkes and Klas Makkes. From a judgment for plaintiff, defendants bring error.

Bill by Emma R. Gray against the H. M. Loud & Sons Lumber Company, impleaded with Anthony Muer, to set aside a foreclosure sale. From the decree rendered, both parties appeal.

<p>1. Equity Jurisdiction — Contracts por Public Improvements— Injunction — Interest op Taxpayer.</p> <p>A bill to enjoin, a city from entering into a contract for a public improvement cannot be maintained by an individual taxpayer whose proportionate liability for the cost of such improvement will be less than the §100 essential to the jurisdiction of the chancery court.</p> <p>3. Same — 'Unsuccessful Bidder.</p> <p>Nor can such bill be maintained by an unsuccessful, though the-lowest, bidder for the contract.</p>

<p>Mandamus by John Stenglein and others to compel Emmet L. Beach, circuit judge of Saginaw county, to dissolve a preliminary injunction.</p>

Case by Daniel Dolson, administrator of the estate of Daniel Dolson, Jr., deceased, against the Lake Shore & Michigan Southern Railway Company, to recover damages for negligent injuries to decedent, resulting in his death. From a judgment for plaintiff, defendant brings error.

Case by Mary Ryan, by next friend, against Edgar H. Towar, impleaded with the Bice Manufacturing Company and John M. Longyear, for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Case by Peter H. Nieboer, by next friend, against the Detroit Electric Railway, for personal injuries. From a judgment for plaintiff, defendant brings error. Plaintiff, about 6 o’clock p. m., desired to take one of' the defendant’s cars on the usual route to his home. Under the plea that the car was crowded, he climbed upon the dead wood or “bumper” at the rear of the car.

Mandamus by the Detroit, Grand Rapids & Western Railroad Company to compel Clement Smith, circuit judge of Eaton county, to vacate an order dismissing an appeal from justice’s court.

Mandamus by Willard E. Warner to compel the board of State auditors to allow relator’s claim for compensation as an employé of the board of State tax commissioners.

<p>Guaranty — Construction—Discharge.</p> <p>Defendant gave plaintiff a writing in which, he guaranteed “the value of a consignment stock of watches and jewelry” that plaintiff might ship to a certain company, “to the extent of $1,000; said stock to be on memoranda for a period of no less than six months, and all reorders from said stock to be accompanied and paid for in cash. At the end of this period, or any renewal or extension thereof, the goods unsold can be returned.” Plaintiff sent the company five shipments, but a few days apart, aggregating $1,712, for which the company paid $550, and returned goods valued at $802. Held, that the guaranty covered only a single consignment of goods, not exceeding $1,000 in value, and that defendant’s liability, if ever existing, ended when that amount was paid for or returned.</p>

Assumpsit by the Bay City Iron Company against Henry E. Emery to recover a balance due on an open account. Erom a judgment for defendant, plaintiff brings error.

Joseph; Yaple, J. Elizabeth Gee and Rebecca M. Ennis appealed from an order of the probate court allowing the account of Joseph B. Hasbrouck and John J. Hasbrouck, as administrators with the will annexed of the estate of John Hasbrouck, deceased. The order was substantially affirmed in the circuit, and said appellants bring error.'

Creditor’s bill, and bill in aid of execution, by Alfred F. Wilcox, trustee, against George H. Hammond and Belle F. Hammond. From a decree dismissing the bill, complainant appeals.

Assumpsit by Charles A. Whittemore against the Kent Scientific Institute for services rendered. From a judgment for defendant on verdict directed by the court* plaintiff brings error.

<p>Negligence — Personal Injuries— Fellow-Servants— Foreman of Sawmill.</p> <p>The foreman of a sawmill, having authority, under the direction of the general manager, to employ and discharge workmen, and having general supervision of the mill, but performing more or less manual labor therein, is a fellow-servant of an operative employed in the mill, so that the latter cannot recover against the common employer for injuries received through the negligence of the foreman in directing the conduct of the work.</p>

Bill by Thomas F. Sullivan, trustee, against Jane Parkinson, Ida J. Parkinson, and Charles A. Parkinson, administrator of the estate of William Parkinson, deceased, to reach property alleged to have been conveyed in fraud of creditors. From a decree dismissing the bill, complainant appeals.

<p>1. Taxation — Decree of Sale — Validity—Sessions of Court— Leave to File Objections to Tax.</p> <p>The hearing of the auditor general’s petition in a tax proceeding was set for October 15th, on which day an adjournment was had to the 29th. Court was in session on that day and the four following days, when it adjourned sine die; and a decree of sale was subsequently entered as of October 31st, the day on which tax matters were heard. Held, a sufficient compliance with 1 Comp. Laws, §3889, giving landowners the right to apply for leave to file objections to the tax at any time within the “first five days after the day fixed” for hearing the auditor’s petition.</p> <p>2. Same — Trespassers—Timber Sold by State.</p> <p>A trespasser cutting timber on lands the title to which is in the State under a valid tax sale, and suiDg to recover the timber from a purchaser of the same from the State under 1 Comp. Laws, § 3936, will not be heard to object to the regularity of such sale of the timber.</p>

Case made from St. Clair; Whipple, J. Case by Anna Lee against the city of Port Huron for personal injuries. There was a judgment for plaintiff, and defendant assigns error. The following are the stipulated facts; Plaintiff was injured while riding on her bicycle upon a sidewalk of the defendant city.

Petition by the city of Detroit against David E. Heine-man and Joseph M. Weiss to condemn land for a public alley. From a judgment for petitioner, respondents appeal. This is a proceeding under chapter 90, 1 Comp, £aws, to condemn land for a public alley. A jury was duly impaneled under section 6 (1 Comp. Laws, § 3397), proofs were taken, and nominal damages awarded.

Petition by John William Garrison for an order requiring Frank J. Hecker to pay the price of real estate sold under order of court. From a decree for petitioner, defendant appeals.

<p>Pleading — Withdrawing Demurrer — Costs—Mandamus.</p> <p>Where defendant entered a plea in bar after interposing a demurrer, and-the court refused to hear the demurrer on the ground that it had been waived by filing the plea, such refusal amounted to leave to withdraw the demurrer; and, such court being of opinion that no costs should be allowed to plaintiff, a mandamus to compel the rendition of a judgment overruling the demurrer, with the incident costs, will not be granted.</p>

Mandamus by Charles E. Love, assistant corporation counsel of the city of Detroit, to compel James Phelan, judge of the recorder’s court of said city, to entertain a complaint for the violation of a city ordinance.

Bill by Gr. Henry Shearer and others against the board of supervisors of Bay county and others to restrain the issue of certain bonds. From a decree dismissing the bill, complainants appeal.

<p>Error to superior court of Grand Rapids; Newnham, J.</p> <p>Case by William Beunk, Jr., against the Valley City Desk Company, for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

<p>Error to Oakland; Smith, J.</p> <p>Assumpsit by Frank J. Battersbee against Philip Calkins on a promissory note. From a judgment 'for defendant, plaintiff brings error.</p>

Assumpsit by the Shaw, Kendall & Company against Mason L. Brown on certain promissory notes. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Case by Hattie M. Bond against the Lake Shore & Michigan Southern Railway Company for personal injuries. Verdict and judgment passed for plaintiff, and, defendant’s motion for a new trial having been denied, it brings error.

Assumpsit by Victoria Gingrass against William G. Mather for royalties under a mining lease. From a judgment for defendant on verdict directed by the court,, plaintiff brings error. August 14, 1885, plaintiff, being the owner of certain-lands, executed a lease thereof to Anson B. Miner and William L. Jones for 21 years, for the purpose of mining gold. August 19, 1885, Miner and Jones assigned it to Peter White.

<p>Appeal from Alcona; Connine, J.</p> <p>Bill by John A. Widner against Frank H. Christian to restrain the cutting of timber. From a decree for complainant, defendant appeals.</p>

Bill by Joseph Domling, guardian of Isabelle Domling, an incompetent, against Anna Domling and Barbara Wallrobenstein, to set aside a deed. From a decree dismissing the bill, complainant appeals.

Assumpsit by the E. G. Dailey Company against the Clark Can Company for the breach of a contract to furnish certain cans. From a judgment for plaintiff, defendant brings error.

Assumpsit by Joseph Nephew against the Michigan Central Eailroad Company for the breach of an alleged contract of employment. From a judgment for defendant on verdict directed by the court, plaintiff brings error. In 1887, and for some two years prior thereto, plaintiff had been employed as a brakeman on a passenger express train of the defendant company. On May 5,1887, his hand was injured while coupling the engine to the baggage car.

Submitted October M, 1901. Assumpsit by Bryant Walker, administrator de bonis non, with the will annexed, of the estate of Corydon L. Eord, deceased, against John Archer and Ferdinand C. Ortmann, on an appeal bond. From a judgment for defendants, plaintiff brings error.

Mandamus by Kalma Friedman to compel Washburn Horning, county treasurer, to pay a certain order. From an order granting the writ, respondent brings certiorari.

<p>Appeal from superior court of Grand Rapids; Newnham, J.</p> <p>Bill by Clarence F. Waters and Lillie A. Waters against Alexander R. Gillies to compel the discharge of a mortgage. From a decree for complainants, defendant appeals.</p>

Appeals from Ontonagon; Haire, J. Petitions by the Aztec Copper Company against Roscoe D. Dix, auditor general, Albert F. Cook, and others, to set aside certain tax sales. From decrees for petitioner, respondents appeal.

Mandamus by the Continental Varnish & Paint Company to compel Fred M. Warner, secretary of state, to record a certificate of amendment to relator’s articles of association. The relator was -organized July 3, 1900, under chapter 188, 2 Comp. Laws (being Act No. 232, Pub. Acts 1885), with a capital stock of $10,000, divided into 1,000 shares, of $10 each.

<p>Mandamus —Township Boards — Approval op Bonds — Disore. tionart Powers — Issues.</p> <p>Where the return of a township board to an application for mandamus to compel the approval of a druggist’s bond sets up that it rejected the bond in good faith, after a full and fair investigation, because of the insufficiency of the sureties, relator is not entitled to have an issue framed as to the good faith of the board, for submission to a jury.</p>

Bill by Frank Pirgandi and Mary Pirgandi against William E. Fay and Anna F. Fay to set aside a deed. From a decree dismissing the bill, complainants appeal..

<p>1. Evidence — Conversations—Separate Versions.</p> <p>Where plaintiff testifies to a conversation between himself and defendant before suit brought, in relation to a settlement of the case, defendant may properly give his version of the same conversation.</p> <p>2. Trial — Instructions—Preponderance oe Evidence.</p> <p>An instruction that “by preponderance of the evidence, which the plaintiff must have,” is meant “that the testimony, when put in as to the claims of the respective parties, the evidence produced by the plaintiff must outweigh that of the defendant,” if erroneous as not distinguishing between “evidence” and “testimony,” is cured by the subsequent statement that the verdict is to be found “in the manner directed, — from a preponderance of the*evidence.”</p>

<p>Appeal from Bay; Shepard, J.</p> <p>Bill by Martha A. Wagoner against James W. Wagoner for a divorce. From a decree for complainant, defendant appeals.</p>

, presiding. Case by Dan McLeod against James S. Crosby for slander and malicious prosecution. From a j udgment for plaintiff, defendant brings error.

Case by Catherine Tattan against the city of Detroit for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>1. Negligence — Privity oe Parties — Injury to Third Person.</p> <p>As a general rule, one who lets property for use, like one who sells it, is not responsible to third persons for injuries sustained by reason of a defect therein.</p> <p>2. Same — Dangerous Substances — Proximate Cause.</p> <p>While an exception to this rule may exist in cases involving dangerous substances, such exception is conditioned on there having been no intervening human agency which might have prevented the injury.</p> <p>3. Same — Electricity.</p> <p>Whether an electric current of 113 volts may be regarded as a dangerous substance, within the meaning of the exception, —qumre.</p> <p>4. Same.</p> <p>Where an electric company places a lamp in the place of business of a customer, which lamp is known by such customer to be improperly insulated, and by reason of which defective insulation a third person, in the course of his duties, is injured, the use of the lamp, in its defective condition, by such customer, is such an intervention of another agency between the company’s neglect and the person’s injury as to save the company from liability, conceding that it could otherwise be held responsible.</p>

Case by Eva Wheeler against the Detroit Electric Railway for personal injuries. Prom a judgment for defendant, plaintiff brings error. Plaintiff claims that she was injured through the negligence of the defendant in suddenly starting its car while she was alighting from it, about 11 o’clock at night.

Assumpsit by William Wagner against the Supreme Lodge Knights and Ladies of Honor on a benefit certificate. From a judgment for plaintiff, defendant brings error. The defendant is a mutual benefit association, having a system of lodges. Its principal office is at Indianapolis, Ind. Its members are of two classes, — social and beneficiary. One Barbara Bishop received a commission, as deputy supreme protector of the Knights and Ladies of Honor, to organize lodges in Michigan.

Case by Edward Sheltrawn against the Michigan Central Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.

Clair; Thomas, J. Case by John H. Callahan against the city of Port Huron for personal injuries. From a judgment for plaintiff, defendant brings error.

<p>Lease — Contract in Writing — Correspondence—Ambiguity.</p> <p>Where, in pursuance of oral negotiations concerning a lease, plaintiff wrote defendant; “Herewith please find receipt for advance rent on premises, beginning May 1st; rent $25 per month, first six months,” and defendant replied, “All is right,” there was a written contract of leasing for a term of six months.</p>

Bill by the' board of managers of the Michigan Soldiers’ Home against Richard O. Jackman to enjoin the removal of a fence. From a decree dismissing the bill, complainant appeals.

<p>Appeal from Wayne; Frazer, J.</p> <p>Bill by John Murnan against Lillian Murnan for a divorce. From a decree dismissing the bill, complainant appeals.</p>

Assumpsit by Alice B. Gage against the city of Saginaw to recover taxes paid under protest. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Replevin by the Huron Land Company, Limited, against Ignace Robarge. From a judgment for plaintiff on verdict directed by the court, defendant brings error. This is an action of replevin for timber cut from certain lands described in the affidavit, the writ of replevin, and the declaration. Plaintiff showed a complete chain of record title from the State to it. Defendant claimed title by viutue of a tax deed dated April 7, 1899.

; Emerick, J. Assumpsit by Marks Horwitz against John Pepper to recover a commission on a sale of real estate. Prom a judgment for defendant, plaintiff brings error. This suit is brought to recover a commission for an alleged sale of real estate. Plaintiff was a manufacturer and dealer in cigars, residing in Alpena, and traveling over the adjoining country selling his goods. Defendant kept a hotel in Millersburg, a small village.

Mandamus by Alonzo M. Brown, drain commissioner of Saginaw county, to compel Frederick Nehmer, supervisor of the township of Swan Creek, to assess a certain drain tax. From an order denying the writ, relator brings certiorari.

Clair; Whipple, J. Assumpsit by Michael P. Shanahan against Frederick GL Coburn for money had and received. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff, a farmer, sold to one Joyce, a grain buyer, about 800 bushels of wheat, to be delivered and put into •cars furnished by Joyce. Defendant, Coburn, was a banker at Memphis, Mich. The sale by plaintiff to Joyce was for cash.

<p>Criminal Law — Evidence—Depositions on Preliminary Examination.</p> <p>The deposition of a witness on a preliminary examination is not admissible on the trial as substantive proof of the offense charged. Distinguishing People v. Kennedy, 105 Mich. 436, and earlier cases.</p>

Assumpsit by John Farnam against Patrick M. Doyle on an assigned claim for services rendered. From a judgment for plaintiff, defendant brings error.

Mandamus by Marcus Pollasky to compel John A. Schmid, city clerk of the city of Detroit, to publish a certain ordinance. From an order denying the writ, relator brings certiorari.