Volume 130 — Michigan Reports

Clair; Vance, J. Case by Daniel Breen against John Hyde and Christopher Brandon, impleaded with Thomas Wrinn, for damages caused by flooding plaintiff’s land. From a judgment for defendants, plaintiff brings error.

Bill by the Russel Wheel & Foundry Company against Hammond, Standish & Company to enjoin the sale of certain corporate stock. From a decree dismissing the bill, complainant appeals.

Assumpsit by Henry De Kruif against Jacob Elieman for goods sold and delivered. Erom a judgment for plaintiff, defendant brings error.

Bill by Charles Travis, administrator of the estate of Israel M. Bray, deceased, against Frank M. Parks and Edith M. Parks, to set aside a deed. From a decree for complainant, defendants appeal.

Mandamus by the Traverse City Gas Company to compel the mayor and common council of the city of Traverse City to grant the right to lay gas pipes in certain streets. From an order denying the writ, relator brings certiorari.

Bill by Edward J. Dorenberg and Elizabeth Dorenberg against William M. Ockerman, Lucy Ockerman, and John W. Salmon to foreclose a mortgage. From a decree for complainants, defendant Salmon appeals. Bill to foreclose a mortgage given by defendants William M. Ockerman and wife.

Summary proceedings by Curtis W. Marvin against John C. Hartzto recover the possession of land. From a judgment for defendant on verdict directed by the court, complainant brings error.

Bill by Mary Meech and others against George Wilder, Jr., and others, to set aside a deed. From a decree dis- * missing the bill, complainants appeal. The complainants and defendants are the heirs of George and Olive Wilder, deceased. The bill is filed to set aside a deed made by George and his wife to the defendant George Wilder, Jr., his son, who lived with his ‘ parents until they died.

Assumpsit by the Butters Salt & Lumber Company against Albert Vogel for goods sold and delivered. From a judgment for plaintiff, defendant brings error.

Bill by Catherine Campau Salliotte against Julia Campau Williams and others for the construction of a will. From a decree for complainant, defendants appeal.

Bill by George A. Farr against Henry Lachman, Adam Lachman, and others to foreclose a mortgage. A decree of foreclosure was rendered, the property sold, and the sale confirmed. From, an order granting a writ of assistance on the application of John H. Tatem, defendants Lachman appeal.

<p>Error to Benzie; Chittenden, J.</p> <p>Trespass quare clausum fregit by Mary Fowles against John S. Hayden. From a judgment for defendant, plaintiff brings error.</p>

Case by Casper H. Scheel against the city of Detroit for personal injuries. From a judgment for defendant; plaintiff brings error. Plaintiff claims that he fell into a hole on a cross-walk of the defendant city on November 2, 1899, and received a very serious injury. He brought suit to recover damages, alleging negligence on the part of the defendant.

Trover by Anna M. Heath against William H. Koon. From a judgment for plaintiff, defendant brings error. The statement of facts made by the appellant is conceded to be correct. We take therefrom that which is essential to an understanding of the point to be decided. Plaintiff is the wife of Edgar Heath. They were married in October, 1893. Until 1896 he supported’his family by working as clerk, peddling, and other work.

Bill by Charles W. Calkins, receiver of the Supreme Assembly of the National Dotare, against William H. Green, Jr., and Annie Green, to reinstate and foreclose a mortgage. From a decree dismissing the bill, complainant appeals. This is another suit involving the rights and obligations of the members of the Supreme Assembly of the National Dotare.

Mandamus by Frederick S. Hutchinson and James Curry to compel the board of supervisors of Ionia county to allow certain fees to relators as justices of the peace. From orders granting the writs, respondent brings certiorari. The relators are justices of the peace of the city of Ionia, Ionia county. They presented bills for their services as such justices in the alleged trial of offenders brought before them, as they assert, under sections 5923, 11736, Comp. Laws.

Bill by William E. Macklem and John H. Brown against James W. Fales, Alexander McVittie, and others for the specific performance of a contract. From a decree .for complainants, defendants appeal.

Bill by David Wilson against Alice Terry and others, heirs at law of Ada O. Terry, deceased, and George Blass, to foreclose a mortgage. Defendant Blass filed an answer in the nature of a cross-bill, asking the foreclosure of a prior mortgage. From a decree for complainant and defendant Blass, the other defendants appeal.

Assumpsit by William Loudon against Frederick N. Carroll to recover the price paid for land. From a judgment for plaintiff, defendant brings error.

Ejectment by Marie Bolio and others against Martha Marvin. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.

Esther C. Mack presented a claim against the estate of Sarah C. Cole, deceased, on a promissory note. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for claimant, defendant brings error.

Appeals from. Clinton; Stone, J. Bills by Charlotte E. Walterhouse and Myrtle V. Walterhouse, infants, by Sylvia E. Walton, their next friend, against Frank Walterhouse, Elmer Walterhouse, and others, to restore a deed. From decrees for complainants, defendants appeal.

<p>Appeal from Wayne; Brooke, J.</p> <p>Bill by Thomas S. Sprague against Irene Sprague Moore, as trustee, Irene Sprague Moore, as general guardian of the estate and effects of Gracie Deats, a minor, Irene Sprague Moore, Rollin C. .Sprague, George H. Sprague, Mary A. Stofflet, Ida L. Taylor, Gracie Deats, Thomas S. Sprague, as administrator of the estate of Amelia L. Sprague, deceased, and Thomas S. Sprague, as administrator of the estate of Adeline L. Sprague, deceased, for an accounting. From the decree rendered, defendants Irene Sprague Moore, as trustee, as guardian, and individually, Gracie Deats, and Thomas S. Sprague, as administrator of the estate of Amelia L. Sprague, deceased, appeal.</p>

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

<p>1. Equity Practice— Creditor’s Bill by Receiver.</p> <p>A bill praying an assessment against stockholders, filed by a receiver of the corporation on behalf of a judgment creditor, is not prematurely brought, though all the corporate debts have not been ascertained, and no leave has been obtained from, the court to institute suit against the stockholders.</p> <p>2. - Sale — Retention of Title — Retaking Property — Suit for Purchase Price.</p> <p>A contract for the sale of machinery to a corporation provided that title should remain in the vendor until notes given for the purchase price were fully paid; that the vendor might retake the property at any time for default in payment, in -which case payments made should be considered as paid for use; and that the rental value should be a certain amount per month. No payments were made on the notes, and the ven dor, after retaking the machinery and selling it, recovered a judgment against the corporation for the difference between the amount of the notes and the proceeds of the sale. Held, (1) that, after retaking the machinery, the consideration for the notes failed; (2) that the judgment for part of the purchase price was erroneous, and could not be sustained, even on the ground that a larger one for rental might have been obtained.</p> <p>3. Same — Judgment—Collateral Attack.</p> <p>Such judgment is not conclusive against a stockholder of the corporation in a suit by its receiver to collect unpaid subscriptions to the capital stock for the purpose of paying the judgment.</p> <p>4. Corporations — Capital Stock — When Paid Up.</p> <p>When incorporators pass no judgment upon the value of assets turned in as capital stock instead of money, such capital stock will be considered as paid only to the amount of the'value of the assets as ascertained by the court. Per Grant, J.</p> <p>■5. Same — Liability of Incorporators — Transfer of Stock.</p> <p>Original incorporators who recklessly make false statements as to the amount of capital stock actually paid in cannot escape liability to persons who become creditors after they have transferred their stock. Per Grant, J.</p>

Assumpsit by the W. K. Henderson Lumber Company, Limited, against Stilwell & Company, for goods sold and delivered. From a judgment for plaintiff, defendant brings error.

Bill by Oliver B. Campbell and Thomas P. Steadman against Horace N. Keys, Antha D. Keys, and George Bane to foreclose a mortgage. From a decree dismissing the bill as to defendant Bane, complainants appeal.

<p>Error to Bay; Shepard, J.</p> <p>Assumpsit by John L. Stoddard against Morris L. Courtright upon a promissory note. From a judgment for plaintiff, defendant brings error.</p>

Case by Petronilla Tunison against John C. Weadock and Michael P. Heraty, receivers of the Bay Cities Consolidated Street-Railway Company, for personal injuries. From a judgment for plaintiff, defendants bring error. Plaintiff and her husband, who was driving, were returning home from Bay City about half past 5 on the evening of December 15, 1899, along Center avenue. They were driving on the south side of defendants’ track.

Case by Albert Ertz, an infant, by Peter Ertz, his next friend, against Harry L. Pierson and Willis Hough, copartners as Pierson & Hough, for personal injuries. From a judgment for defendants on verdict directed by th& court, plaintiff brings error.

<p>Certiorari to Wayne; Donovan, J.</p> <p>Petition by Augustus C. Stellwagen, administrator of the estate of Christopher Moross, deceased, against Edgar O. Durfee, probate judge of Wayne county, for a writ of prohibition to forbid the appointment of an appraiser under the inheritance tax law. From an order denying the writ, relator brings certiorari.</p>

, presiding.. Case by George G. Hartung against Georgia A. Shaw and John L. Starkweather for libel. From a judgment for defendants on verdict directed by the court, plaintiff brings error. This is an action of libel. The declaration is in the usual form. The libel complained of was in an answer to a bill in chancery, filed by one Sarah A. Brabb against plaintiff, defendant Shaw, and others.

Case by Louis K. Hart against the village of New Haven for personal injuries. From a judgment for plaintiff, defendant brings error.

Petition by George E. Nichols against Richard L. Newnham, judge of the superior court of Grand Rapids, for a writ of prohibition to restrain certain contempt proceedings. October 28, 1901, the prosecuting officers of Kent county filed ’in the superior court of Grand Rapids affidavits charging relator with contempt of court.

Bill by EmelineK. Quimby, EthelynG. Quimby, Clara S. Morley) Walter W. Drew, as administrator of the estate of Ichabod L. Quimby, deceased, and Clara S. Morley, as administratrix de bonis non of the estate of George I. Quimby, deceased, against Edwin F. Uhl, individually andas assignee of Ichabod L. Quimby, and Raymond L. Quimby and Irving L. Quimby, for a receiver and an accounting. There was a decree for defendants, and complainants appealed.

<p>Error to Ingham; Wiest, J.</p> <p>Ejectment by Cora M. Carpenter against Frank L. Carpenter and others. From a judgment for defendants,, plaintiff brings error.</p>

<p>Eire Insurance — Removal op Insured Property — Consent op Agent.</p> <p>Where application is made to an agent of an insurance company for permission to remove insured property to another location, and the agent promises to mate the transfer, and the jury find that the transfer was made out before the fire, but not delivered or attached until after the fire, when the person to whom the application was made was no longer agent of the company, liability of the company cannot be escaped, notwithstanding a provision in the policy that no agent shall have power to grant the permit except by a writing indorsed upon the policy.1 Grant, J., dissenting.</p>

Robert Edwards and Adam Lungen presented a claim against the estate of Austin K. Wheeler, deceased, for goods claimed to have been sold and delivered to a partnership of which decedent was a member. The claim was disallowed by the commissioners, and claimants appealed to the circuit court. Prom a judgment for defendant, claimants bring error.

Assumpsit by J. William Hangsterfer against Charles A. Shafer and Wilber S. Peck for a breach of the terms •of a lease. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

<p>Certiorari by Frank C. Pingree, John B. Howarth, and Hazen S. Pingree, copartners as Pingree & Smith, to review an award of the State court of mediation and arbitration.</p>

Assumpsit by the city of Grand Rapids against the Lake Shore & Michigan Southern Railway Company to recover certain assessments for public improvements. From a judgment for plaintiff for part of its claim, both parties bring error.

<p>1. Nonsuit — Order Vacating — Discretion or Court.</p> <p>Where the plaintiff, through the negligence of herself and counsel, is absent from the State at the time of trial, and a voluntary nonsuit is entered, it is within the discretion of the trial court to set aside the nonsuit upon payment of costs, though the statute of limitations would be a bar to a new suit for the same cause of action.</p> <p>-2. Same — Other Suits ror Same Cause or Action.</p> <p>The fact that the plaintiff has been defeated in other suits for the same claim, on the ground that she had mistaken her remedy, is no reason why the nonsuit should not be vacated, and she be allowed to avail herself of a proper remedy.</p>

Mandamus by Chase S. Osborn, commissioner of railroads, to compel the Grand Rapids & Indiana Railway Company to reduce its rate of fare. From an order granting the writ, respondent brings certiorari.

Cross-appeals from Wayne; Hosmer, J. Bill by Loyde L. Ferris, individually and as administratrix of the estate of George W. Ferris, deceased, against Frank E. Snow, Fremont Woodruff, William A. Jackson, and Georgia-F. E. Ferris, Jeanette V. Ferris, and Thomas A. Ferris, infants, by Loyde L. Ferris, guardian ad litem, for the specific performance of a land contract. From the decree rendered, all parties except defendant Snow appeal.

Assumpsit by the National City Bank of Grand Rapids against John Torrent and Herman O. Lange upon promissory notes. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

' Petition by the American Steel & Wire Company, a judgment creditor of the Miller Hardware Company, under 3 Comp. Laws, § 8554 eb seq., against Selwyn Eddy, a preferred stockholder, to enforce the latter’s liability under section 7057, 2 Comp. Laws. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by William B. Dixon against Kirk Ludington, Grace Ludington, Roscoe D. Dix, auditor general, and William A. French, commissioner of the State land office, to remove a cloud from title. From a- decree dismissing the bill on demurrer, complainant appeals.

Louis Eowles presented a claim against the estate of Betsey C. Holmes, deceased, upon a promissory note. The claim was disallowed by the commissioners on a contest made by James L. Joslyn, administrator, and claimant appealed to the circuit court, where he obtained a judgment. Defendant brings error.

<p>Appeal from Berrien; Coolidge, J.</p> <p>. Bill by Joseph E. Coveney against James B. Pattullo to set aside a mortgage. From a decree for complainant, defendant appeals.</p>

, presiding. Quo xoarranto proceedings by Horace M. Oren, attorney general, on the relation of Steiner C. Garthe, against James E. Campbell, to try the title to the office of judge of probate for Leelanaw county. From a judgment for relator on verdict directed by the court, respondent brings error.

<p>Error to Wayne; Carpenter, J.</p> <p>Case by John R. Hayes against Frederick Stearns & Company for personal, injuries. From a judgment for plaintiff, defendant brings error.</p>

<p>1. Libel — Pleading—Damages.</p> <p>In an action for libel by an attorney against a newspaper, testimony that plaintiff’s business fell off in consequence of the publication is admissible under a declaration averring that plaintiff “suffered the loss in his profession of the confidence of his neighbors, friends, clients, and acquaintances.”</p> <p>2. Same — Evidence—Injury to Feelings.</p> <p>Testimony as to the effect of the publication on plaintiff’s wife is inadmissible to show injury to plaintiff’s feelings, when no such claim is-set out in the declaration.</p> <p>3. Retraction oe Libel — Reasonable Time.</p> <p>What will amount to a reasonable time under 3 Comp. Laws, § 10425, exempting a publisher from exemplary or punitive damages unless plaintiff shall, before bringing suit, give defendant a reasonable time after demand to publish a retraction, is a question of fact for the jury, unless the circumstances leave no room for a difference of opinion upon the subject.</p> <p>4. Reasonable Time — Motive.</p> <p>What is a reasonable time, where a question of motive is involved, is a mixed question of law and fact.</p> <p>5. Retraction — Construction oe.</p> <p>Whether a retraction published in a paper is full and complete, so as to comply with the provisions of 3 Comp. Laws, § 10425, making the same admissible in evidence on the question of the good faith of defendant and in mitigation of damages, is a question for the court.</p>

Assumpsit by John Sbadford against the Detroit, Ypsilanti & Ann Arbor Bail way to recover the amount of a judgment against the Ann Arbor Street-Bailway Company. From a judgment for plaintiff on verdict directed by the court, defendant brings error. The Ann Arbor Street-Railway Company was incorporated in August, 1888, to operate a street railway exclusively in the city of Ann Arbor.

Case by Frank Nowakowski, by next friend, against the Detroit Stove Works, for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by Russell C. Ostrander against the Capitol Investment, Building & Loan Association on a contract of employment. From a judgment for plaintiff, defendant brings error. For some time prior to April 5, 1890, plaintiff and Mr. Edward Cahill formed the law partnership of Cahill & •Ostrander, with offices at Lansing.

Assumpsit by the T. Wilce Company against the Kelley Shingle Company for the breach of a contract of purchase. From a judgment for plaintiff, defendant brings-error. Plaintiff, an Illinois corporation, owns and operates a. large lumbering plant at Empire, Mich., with lumber yard, docks, timber supply, and a railroad extending from the mill through its timber land.

Bill by Frank J. Riggs, trustee of the estate of George H. Whitaker, bankrupt, against Sarah F. Whitaker and George H. Whitaker, to reach property alleged to have been transferred in fraud of creditors. From a decree for complainant, defendant Sarah F. Whitaker appeals.

Bill by the First National Bank of Cooperstown, New York, against the State Savings Bank of Ionia and John Peter Johnson, to remove a cloud from title. From a decree dismissing the bill, complainant appeals.

Mandamus by James Morris to compel Joseph W. Donovan, circuit judge of Wayne county, to order the return of a down payment on a sale in partition proceedings.

Mandamus by Isaiah Long, supervisor of the township of Campbell, to compel William O. Webster, judge of probate for the county of Ionia, to entertain an appeal from an assessment by the drain commissioner. From an order denying the writ, relator brings certiorari.

Mandamus by Fred W. Emmer and others to compel George D. Bostock, clerk of the superior court of Grand Rapids, to draw orders in payment for relators’ services as .jurors. From an order granting the writ, respondent brings certiorari.

Bill by DeWitt EL Moreland, commissioner of public works of the city of Detroit, against the common council of said city, Francis A. Blades, city controller, and William G-. Malcomson and William E. Higginbotham, to restrain the performance of a public contract. From a decree for complainant, defendants appeal.

Assumpsit by Wilbur D. Ellis and Milo M. Belding,. executors of the last will and testament of John Ellis, deceased, against Willis D. Ballou and Anna A. Bidwell, copartners as W. D. Ballou & Co., on promissory notes. From a judgment for defendants on verdict directed by the court, plaintiffs bring error.

<p>Appeal from Wayne; Waite, J.</p> <p>Bill by Henry P. Crouse and Edward D. Brandegee, copartners as Crouse & Brandegee, against Carl H. Michell, Edward H. Parker, administrator of the estate of Thomas A. Parker, deceased, Albert Ives, Sr., Albert Ives, Jr., and Butler Ives, copartners as A. Ives & Sons, Henry A. Harmon, trustee in bankruptcy of said firm, and the Macdonald Clothing Company, to foreclose a lien upon a leasehold interest. From a decree for complainants, all of the defendants except Michell appeal.</p>

, presiding. Bill by N. Ira Winslow, administrator of the estate of Harriet M. Williams, deceased, against Daniel Putnam, Elizabeth Putnam, and Ernest Putnam, in aid of execution. From a decree dismissing the bill, complainant appeals.

Mandamus by the township of Grosse Pointe against the Detroit & Lake St. Clair Railway, impleaded with the Rapid Railway Company and the Detroit, Lake Shore & Mt. Clemens Railway, to compel a compliance with the conditions of a franchise granted the last-mentioned road. Prom an order granting the writ, respondent brings certiorari.

Bill by the Seventh Day Church of God against the Conference of the Church of God‘and fractional school district No. 2, Bangor and Arlington, to quiet title. From a decree for complainant, defendant conference appeals.

Assumpsit by Patrice Gregory against the village of Lake Linden for the breach of á contract for water. From a judgment for plaintiff, on verdict directed by the court, for less than the amount claimed, he brings error.

Petition by Louise M. Gates against the Union Trust Company, receiver of Samuel G. M. Gates, for the allowance of a claim. From a decree for petitioner for part of her claim, both parties appeal.

Bill by the township of Swan Creek and Helon B. Allen against Alonzo M. Brown, drain commissioner of Saginaw county, to enjoin the construction of a drain. From a decree dismissing the bill, complainants appeal.

Trespass de bonis by Rosanna Goodin against Gerrit Yan Haaften. There was a judgment for plaintiff in justice’s court, and defendant appealed to the circuit. On plaintiff’s motion the appeal was dismissed, and defendant brings error. Plaintiff obtained a judgment before a justice of the peace on August 5, 1899.

Replevin by the Gable Company against Enos Wasegizig and wife. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

<p>1. Sale — Warranty—Notice—Waiver.</p> <p>Where under a contract for the sale of a thresher, containing a warranty that the machine should operate to the satisfaction of the purchaser, and also an agreement that the purchaser should immediately notify the agent and seller of the failure of the machine to work satisfactorily, and give them an opportunity to make it work to his satisfaction, the purchaser, on failure of the machine to work to his satisfaction, at once notified the agent, who, instead of insisting that notice should be sent to the seller, asserted that the machine had already been accepted, the necessity of further notice was waived.'</p> <p>S. Conditional Sale — Return oe Machine.</p> <p>A contract for the sale of a thresher provided that if the machine failed to comply with the warranty, and was not accepted, the buyer should return it to the agent at a certain city, but did not mention any place in the city. The agent did not reside in the city, nor have an office there. The machine did not fulfill the warranty, and the buyer wrote the agent, asking where he should leave the machine. The agent in reply insisted that he had already accepted the machine. Held, that the purchaser was not bound to return the machine until he was informed where he should leave it.</p> <p>3. Promissory Notes — Bona Fide Holder — Error Without Prejudice.</p> <p>Where the jury found that the plaintiff was not a bona fide holder of two of three notes given in payment for a thresher, the action of the court in withdrawing from the jury the note maturing first, on the ground that it was not transferred until after maturity, if error, was not prejudicial to the plaintiff.</p>

Certiorari by Charles H. Parkinson to vacate a judgment on a transcript in the Wayne circuit court from a judgment in justice’s court, rendered in an action of assumpsit brought by William H. West.

Case by William R. Amory against the Wabash Railroad Company to recover the value of goods lost in transit. From a judgment for plaintiff, defendant brings érror. This is an action to recover the value of merchandise or samples, shipped by plaintiff as a passenger, and lost or stolen in transit.

<p>Will-Power to Sell — Mortgage.</p> <p>A clause in a will giving the executor power to sell real estate devised to others does not authorize him to mortgage the property.</p>

Assumpsit by the Alpena Electric Light Company against the city of Alpena to recover for public lighting. From a judgment for plaintiff, on verdict directed by the court, for less than the amount claimed, it brings error.

Judgment creditors’ bill by Daniel J. Campau, Francis F. Palms, and George M. Vail against the Detroit Driving Club, in which Fred T. Moran and Worthy L. Churchill intervene by petition to set aside certain execution sales. From an order dismissing the petition, petitioners appeal.

<p>Error to St. Clair; Atkinson, J.</p> <p>Assumpsit by Albert A. Morgan against the Insurance Company of the State of Illinois on a policy of insurance. From a judgment for plaintiff, defendant brings error.</p>

<p>Error to Muskegon; Russell, J.</p> <p>Assumpsit by William R. Yale against Isaac P. Newton for work and labor. From a judgment for plaintiff, defendant brings error.</p>

Bill by Sarah H. Gardner against Michael Mason and Gustav H. Neumeister to set. áside an execution sale. From a decree dismissing the bill, complainant appeals.

Bill by Plum B. Schellenberg against the Detroit Heating & Lighting Company to enjoin the execution of a writ of replevin. From a decree dismissing the bill on demurrer, complainant appeals.

Assumpsit by Alexander Ross against James Dunn for work and labor. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

'Henry Shouldice presented a claim against the estate of Norman McLeod, deceased, for money had and received. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for claimant, defendant brings error.

Assumpsit by Louis Meyer, Louis H. Meyer, and James T. Meyer, copartners as the Meyer Hardware Company, against Frank E. Brown and John Sehler, co-partners as Brown & Sehler, for goods sold and delivered. From a judgment for plaintiffs, defendants bring error.

Case by William Johnson against the Detroit, Ypsilanti & Ann Arbor Eailway for an assault and battery committed by its conductor. From a judgment for plaintiff, defendant brings error.

Bill by Allan M. Stearns, executor of the last will and testament of Joel J. Perrin, deceased, against Semira Mary Perrin and others, to determine the title to certain lands. From an adverse decree, defendant Semira Mary Perrin appeals.

<p>Error to Monroe; Kinne, J.</p> <p>Case by Sarah A. Whipple against the Michigan Central Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by Harvey Clippinger and Charles Clippinger, copartners as Clippinger & Co., against Marshall Starr, for money had and received. From a judgment for defendant on verdict directed by the court, plaintiffs bring error. Plaintiffs were copartners doing business in the city of Lansing. The firm of A. J. Clark & Co., which consisted of A. J. Clark and one Evarts, kept a bucket shop in Detroit, with a branch office at Lansing.

Assumpsit by the Woodmere Cemetery Association against the township of Springwells to recover taxes paid under protest. From a judgment for plaintiff on verdict directed by the court, defendant brings error. Plaintiff’s capital stock is $50,000. Its property and home office are situated in the defendant township. The stockholders reside in the city of Detroit.

Bill by Frances Scheurmann and the Jennison Hardr ware Company against John A. Styninger and Hattie Styninger to reform a deed. From a decree for complainants, defendants appeal.

Log-lien proceedings by James Harris and William Culley against Augustus Doyle, principal defendant, and Robert Rea, log owner. From judgments for plaintiff's, defendant Rea brings error.

Case made from Wayne; Carpenter, J. Debt by the city of Detroit against the Western Union Telegraph Company to collect a tax. There was a judgment for defendant, and plaintiff assigns error.

Case by Erick Erickson against the Victoria Copper Mining Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by Mary E. Blodgett, executrix of the last will and testament of Gilbert H. Blodgett, deceased, against Albert Vogel, for services rendered. From a judgment for plaintiff, defendant brings error. This is an action of assumpsit, brought by plaintiff, as executrix of the estate of Gilbert H. Blodgett, deceased, to recover on an account for legal services rendered by decedent for the defendant.

Assumpsit by John Crossón and others against Fred Yogt for services rendered. From a judgment for plaintiffs, defendant brings error.

Case by Samuel J. Brown against the Rapid Railway Company to recover damages for his expulsion from defendant’s car. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by Robert W. D. Barger against Frank H. Farnham, Zellner Dowling, George P. Dowling, and William O. Dowling on a promissory note. From a judgment for plaintiff on verdict directed by the court, defendants bring erroi;.

Case by Reuben Pepke, by next friend, against the Grace Hospital, James McMillan, William C. McMillan, Ransom Gillis, Rollin C. Olin, and Albert T. Putnam, for negligence in tbe performance of a surgical operation. Prom a judgment for defendants on verdict directed by the court, plaintiff brings error. Plaintiff, a boy 11 years of age, trespassed upon the tracks of a railroad company, and climbed upon the ladder of a freight car of a moving train to ride.

<p>Error to Wayne; Hosmer, J.</p> <p>Trespass quare clausum fregit by John E. Rentschler against David W. Pox. Prom a judgment for defendant, plaintiff brings error.</p>

■Error to Wayne; Donovan, J. Case by Alice L. Price against the United States Baking Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Certiorari by the township of Blumfield against Alonzo M. Brown, drain commissioner of Saginaw county, to review certain drain proceedings. From an order dismissing the writ, relator brings error.

Gross-appeals from Wayne; Rohnert, J. Bill by John McGregor against Thomas McGregor for a partnership accounting. From the decree rendered, both parties appeal.

Petition by Prank M. Thompson against the Union Trust Company, receiver of the City Savings Bank of Detroit, to compel the application of a deposit to the payment of certain promissory notes. Prom a decree for petitioner, defendant appeals.

<p>Error to Houghton; Streeter, J.</p> <p>Replevin by the Sparrow-Kroll Lumber Company against Whiter G. Van Slyck. From a judgment for defendant, plaintiff brings error.</p>

Assumpsit by the Alpena City Water Company against the city of Alpena to recover money paid for taxes. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Joseph Gregory was convicted of burglary, and sentenced to imprisonment for 10 years in the State prison at Jackson. Respondent was convicted of the burglary of the store of • one Randall, located at Tekonsha, on the night of November 29, 1897.

, presiding. Bill by John Wall against Albion College and others to have a deed declared a mortgage, and to be allowed to redeem. From a decree for complainant, defendant college appeals.

Clair; Tucker, J., presiding. Bill by Robert Walsh against James Goulden, Albert D. Bennett, and Junius E. Beal for an accounting on the sale of certain corporate property and stock. From a decree dismissing the bill, complainant appeals. Complainant was a stockholder in the Port Huron Gaslight Company. The defendants were stockholders and directors. The capital stock was 140,000, in shares of $50 each.

Habeas corpus by Edward Ascher to the sheriff of Wayne county, with ancillary writ of certiorari to Judge Murphy, of the recorder’s court of Detroit, to obtain a discharge from custody on a charge of murder.

<p>Mandamus by Donald C. MacKinnon to compel Perry F. Powers, auditor general, to cancel certain tax sales, and to refund the amount paid thereon.</p>

Bill by Thomas J. Howell and others against Aymer E. Shannon and others, composing the board of school inspectors of Fairfield township, to set aside the consolidation of certain school districts. From a decree dismissing the bill, complainants appeal.

Case made from Bay; Shepard, J. Assumpsit by Edward Burns against the Michigan Manufacturers’ Mutual Fire-Insurance Company on a policy of insurance. There was a judgment for plaintiff on verdict directed by the court, and defendant assigns error.

Bill by Fanny R. S. Balen against Frances Lewis, William W. Chapman, administrator of the estate of George Lewis, deceased, Joseph E. Chateauneuf, and others, to foreclose a mortgage. From a decree in favor of defendant Chateauneuf, complainant appeals.

<p>Appeal from Mecosta; Russell, J., presiding.</p> <p>Bill by the Michigan Trust Company, receiver of the Mecosta County Savings' Bank, against Dolly Ann Com-stock, George W. Millner, and Jennie M. Millner, in aid of execution. From a decree for complainant, defendants Millner appeal.</p>

Assumpsit by Samuel Walker and another against Henry L. Newton to recover a balance due on a building contract. Plaintiffs had verdict and judgment, and, a motion for a new trial having been denied, defendant brings error.

Case by John Spaven against the Lake Shore & Michigan Southern Railway Company and the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Bill by Martha Gr. Lasier and others against the Appleton Land & Iron Company and the American Mining Company to set aside a royalty agreement on the ground of fraud, and for an accounting. From a decree dismissing the bill, complainants appeal.

Assumpsit by John A. McLean against the Prudential Insurance Company of America for commissions. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Case made from Jackson; Peck, J. Assumpsit by Peter B. Loomis against the city of Jackson to recover taxes paid under protest. There was a judgment for plaintiff, and defendant assigns error.

Assumpsit by Harvey C. Taft, receiver of the Masonic Life Association, against George Pullen, to recover an assessment. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by Abram B. Knowlson against David Piehl for the-breach of a contract to furnish lime. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

<p>1. Attachment — Dissolution—Evidence.</p> <p>An order dissolving an attachment will not be reversed because 'of the admission of irrelevant testimony, where the circuit judge certifies that such testimony was not considered by him in reaching a conclusion.</p> <p>2. Same — Evidence of Plaintiff’s Claim.</p> <p>On the hearing of a petition to dissolve an attachment, evidence by the defendant that he did not owe the plaintiff anything, or did not know that he owed the plaintiff anything, is admissible for the purpose of showing a want of bad faith in the manner he dealt with his property.</p> <p>8. Same — Findings of Fact.</p> <p>Findings of fact by the circuit judge in proceedings to dissolve an attachment are conclusive where there is evidence to support them.</p> <p>4. Same.</p> <p>Where there is evidence tending to show that defendant did not know he was indebted to the plaintiff, an order dissolving an attachment will not be reversed, although the testimony, if plaintiff’s claim had been undisputed, would have conclusively shown an intent to defraud creditors.</p> <p>5. Evidence — Exclusion of Cumulative Testimony.</p> <p>Where the undisputed evidence shows a certain fact, the exclusion of additional evidence to prove the same fact is not prejudicial error.</p>

Judgment creditor’s bill by Julius W. Schaub against the Welded-Barrel Company, Charles L. Coffin, and Cyrus E. Lothrop. From an order overruling the separate demurrers of defendants Coffin and Lothrop, they appeal.

' Assumpsit by Gardner A. Wigent against Chloe R. McClung for goods sold and delivered. Defendant died pending the trial, and the cause was revived in the name of- her administrator, Thomas Marrs. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Case by John Krimmel, administrator of the estate of Henry Krimmel, deceased, against the Edison Illuminating Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Albert Scouten was convicted of statutory rape, and sentenced to imprisonment in the State prison at Jackson for six years.

<p>1. Statutes — Repeal.</p> <p>Where the provisions of an aot were not repeated in an act revising and amending the laws relating to the same subject, but were expressly saved thereby, a repeal of the latter leaves ■ the original act in force.</p> <p>2. Same.</p> <p>An act revising and amending certain laws, and repealing inconsistent acts, does not affect statutes which are omitted, and not repugnant to its provisions.</p> <p>3. Same — Shipping Game Out oe State. '</p> <p>Act No. 217, Pub. Acts 1901, providing that all game transported under cover shall be plainly marked on the outside of ' the package with the names of the consignor and consignee, point of billing, and destination, is not inconsistent with, but supplementary to, Act No. 196, Pub. Acts 1893, prohibiting the transportation of game from the State, and hence does not repeal the latter act.</p> <p>4. Property in Game — Constitutional'Law.</p> <p>A prosecution under section 2 of Act No. 196, Pub. Acts 1893,— a statute for the protection of game, — does not infringe .the privileges and immunities granted to citizens by the Federal Constitution, as game is the property of the State, and it may make such restrictions for its protection as it deems best.</p> <p>5. Same — Seizure op Game — Due Process op Law.</p> <p>In a prosecution for having in possession wild ducks with intent to ship them beyond the limits of the State, it is unnecessary to determine whether or not the proceeding authorized by the statute for the seizure of the ducks is due process of law.</p>

Error t.o Clare; / Dodds, J. Assumpsit by George A. Alderton against Charles E. Williams and Lafayette C. Williams upon promissory notes. From a judgment for plaintiff on verdict directed by the court, defendants bring error.

Assumpsit by Lillian C. Cowley against school district No. 3 of Harrisville township for the breach of an alleged contract of hiring as teacher. From a judgment for plaintiff, defendant brings error.

Abiel A. Wilson presented for probate the last will and testament of George Jerome Parker, deceased. The will was allowed in the probate court, and May Parker, Alice London, and Jane McKenzie appealed to the circuit. From a judgment there for contestants, proponent brings error.

Assumpsit by tbe Koppitz-Melchers Brewing Company against Adolph Behm for goods sold and for rent. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Case by John Quirk, by next friend, against the Rapid Railway, for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by the Pontiac, Oxford & Northern Railroad Company against William Reed to restrain interference with a side track on defendant’s land. Defendant filed an answer in the nature of a cross-bill, asking affirmative relief. From the decree rendered, both parties appeal.

Case by Philip Gaukler, an insane person, by Henry Gaukler, his guardian, against the Detroit, Grand Haven & Milwaukee Railway Company, to recover damages for his negligent ejection from defendant’s train. From a judgment for plaintiff, defendant brings error.

<p>Embezzlement — Deposit in Private Bank.</p> <p>The evidence is examined in this class, and it is held that the uncontradicted testimony shows that the complaining witness deposited the money in question in a private bank, to remain there until it should be needed, and that therefore the respondent, one of the bankers, was not guilty of embezzlement as an agent, although the money was lost by the failure of the bank.</p>

<p>Quantum Meruit — Express Contract — Acceptance oe Work.</p> <p>Where a person accepts and makes use of work performed under an express contract, he will be liable on the quantum mei'uit count, though the work did not conform to the contract.</p>

Bill by Andrew Knight and Solomon Fess against Kate Barr and Madison Barr to enjoin interference with certain water rights. From a decree for complainants, defendants appeal.

Petition by Fremont J. Tromble against Charles E. Hoffman and Perry F. Powers, auditor general, to vacate certain decrees for the sale of land delinquent for taxes. From a decree for petitioner, respondent Hoffman appeals.

Petition by Emil E. Kunze and John Applin, copartners as Kunze & Applin, against the Tawas State Savings Bank, for the correction of an order declaring them to be general creditors of said bank. From an order denying the petition, petitioners appeal.

Petition by Theodosia P. Hollywood, widow of James N. Hollywood, for ail order directing the administrator of his estate to pay an allowance for her support. The petition was disallowed in part by the probate court, and petitioner appealed to the circuit. From a judgment affirming the order of the probate court, James H. McDonald, executor of her last will and testament, brings error.

Mandamus by David Anderson, prosecuting attorney of Van Burén county, to compel John li. Carr', circuit judge of said county, to vacate an order quashing an information.

Mandamus by David Anderson, prosecuting attorney of Van Burén county, to compel John R. Carr, circuit judge of said county, to vacate an order quashing an information.