Volume 132 — Michigan Reports

), J., presiding. Bill by Minnie L. Edwards against the Michigan Ton-tine Investment Company and others for an accounting. From an order overruling a demurrer to the bill, defendants appeal.

Bill by John A. May, receiver of the Ingham County Savings Bank, against Paul J. Ullrich, administrator of the estate of Paul Ullrich, deceased, impleaded with James R. Trimble, to enforce an assessment on stock. Prom a decree for complainant, defendant appeals.

Mandamus by Robert R. Oesterreich to compel George W. Fowle, police commissioner of the city of Detroit, to revoke an order dismissing relator from the police force. From an order denying the writ, relator brings certiorari.

Case by John P. Jones and Catherine Jones against Frederick Cody to recover damages for a loss of trade. From a judgment for defendant on verdict directed by the court, plaintiffs bring error. Counsel for appellants has made no statement of the case as provided by Sup. Ct.

Bill by the Delray Lumber Company and Joseph E. Hugg and Albert Oltz, copartners as Hugg & Oltz, against Katherine Keohane and James Scheel, to enforce mechanics’ liens. Erom a decree for complainants, defendant Keohane appeals.

Arthur A, Tillman was convicted of assault and battery. Respondent was convicted of assault and battery upon one Komoll. Komoll testified that he had pawned certain tools with the respondent, and secured thereon a loan of $2, for which he had agreed to pay 50 cents. Respondent testified that he had purchased them, and afterwards sold them back to Komoll. Komoll paid respondent $2.50, and received back the tools.- Upon examining them he claimed that some were missing.

Exceptions before judgment from Muskegon; Russell, J. James Walburn was convicted of larceny. The respondent was convicted of the larceny of an organ. The statement of facts made by the respondent’s attorneys is not disputed by the people, and will therefore be taken as correct. It is as follows: In 1898 one Moran, the complaining witness, made a contract with the Ear-rand-Yotey Organ Company for the purchase of an organ through the company’s agents, Samuel and Edward Spicer.

<p>Error to Saginaw; Snow, J.</p> <p>Replevin by Martha Goppelt against William W. Burgess. From a judgment for plaintiff on verdict directed by the court, defendant brings error.</p>

' Assumpsit by Henry F. McCormick and Simon La Grou,' copartners as McCormick & La Grou, against Antonia Olbinski, for services rendered. Erom a judgment for plaintiffs, defendant brings error.

Bill by William H. Crippen, executor of the last will and testament of Abram Shear, deceased, against Rachael Adams and others, to set aside a transfer of bank stock. From a decree for complainant, defendant Adams appeals.

Cross-appeals from superior court of Grand Rapids; Newnham, J. Bill by William T. Powers against Willis J. Perkins to restrain the excessive use of water for power, and for an accounting. From the decree rendered, both parties appeal.

Assumpsit by tbe F. W. Kavanaugh Manufacturing Company against Aaron D. Rosen, Louis Rosen, and Myer S. Fink, copartners as A. D. Rosen & Company, for goods sold and delivered. From a judgment for plaintiff, defendants bring error.

Otis Lincoln presented for probate an instrument, in form a deed, as the last will and testament of Laura L. Felt, deceased. The instrument was disallowed in the probate court on a contest by Noah Felt, and others, the husband and heirs at law of deceased, and proponent appealed to the circuit. From a judgment for proponent, contestants bring error.

Mandamus by William EL Halpin and Mary J. Halpin to compel Joseph W. Donovan, circuit judge of Wayne county, to set aside an order for costs against relators. One David P. Lapham filed a foreclosure bill in equity against William H. Halpin, his wife, Mary, and one Pierce. Halpin was the mortgagor. Upon the chancery subpoena was indorsed that no personal decree was claimed against Mary Halpin or Pierce. The bill was taken as confessed against the Halpins.

Mandamus by Abram Jacobs to compel Flavius L. Brooke, circuit judge of Wayne cbunty, to dismiss a writ of certiorari. The relator brought suit in justice’s court against the 'Grand Trunk Railway Company for breach of a contract of carriage. The first summons was not served. An alias summons was issued and duly served. The defendant appeared. Several adjournments were had. On the day of the final adjournment, plaintiff filed his declaration.

<p>Error to Benzie; Chittenden, J.</p> <p>Alba Smith was convicted of seduction.</p>

<p>1. Trover — Rescission oe Sale — Conversion—Damages.</p> <p>Where, in a trade of lands for a stock of goods, plaintiff fraudulently misrepresented the character of the lands, and defendant seized the stock of goods two days before tendering a reconveyance of the lands, plaintiff was entitled to recover, in an action of- trover for the technical conversion, not more than nominal damages.</p> <p>2. Damages — Judgment—Error.</p> <p>A judgment for defendant will not be set aside where it appears that plaintiff is entitled to no more than nominal damages, and a judgment in his favor would not carry costs.</p>

Bill by Walter B. Drew against the Billings-Drew Company, under which Charles A. King was appointed receiver. Stephen Baldwin intervened and presented a claim against defendant. From a decree for the intervener, the receiver appeals. Intervener, Baldwin, leased to complainant, Drew, a three-story building (No. 62 Miami avenue, Detroit) for three years from November 1, 1896. The lease was a written one, and provided for a monthly rental of $75.

Bill of interpleader by the Supreme Tent of the Knights of the Maccabees of the World against Clara E. McAllister and Eleanor McAllister to determine the right to the proceeds of an insurance policy on the life of William R. Mc-Allister, deceased. From a decree for defendant Clara, defendant Eleanor appeals. Defendant Eleanor is the mother, and defendant Clara is the alleged widow, of William R. McAllister, deceased.

Case by John B. Stroub against Barney Meyer for loss of services of and expenses in caring for his wife, caused by injuries resulting from defendant’s negligence. From a j udgment for plaintiff, defendant brings error.

<p>Error to St. Joseph; Tapie, J.</p> <p>Beplevin by Isaiah B. Crossette against Samuel Jordan. From a judgment for plaintiff, defendant brings error.</p>

Quo warranto 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 of Leelanaw county. From a judgment for respondent, relator brings error.

Bill of interpleader by the Allgemeiner Arbeiter Bund against Emma Adamson and Ursula Merz to determine the right to a death benefit. From a decree for defendant Adamson, defendant Merz appeals.

Creditor’s bill and bill in aid of execution by John F. Brand and Clarence H. Brand, executors of the last will and testament of Daniel Hardin, deceased, against James A. Connery and Christiana Connery. From a decree dismissing the bill, complainants appeal. In the fall of 1896 defendant James A. Connery made a contract with Boergert & Son to furnish the materials and do the carpenter work on a brick building he was erecting in East Saginaw.

*' Bill by Minnie Burkhardt against James Walker & Son, a corporation, to set aside an execution levy and sale. From a decree for complainant, defendant appeals.

<p>Appeal from Jackson; Peck, J.</p> <p>Contempt proceedings by Frederick W. Stock against the township of Jefferson and George E. Porter. From a judgment against defendant Porter, he appeals.</p>

'Assumpsit by James A. Adams against Florence H. Elseffer for money had and received. From a judgment for defendant, plaintiff brings error.

Mandamus by Fanny Gary to compel Clement Smith, circuit judge of Eaton county, to vacate an order requiring relator to furnish a bill of particulars. In an action of Grim, con., brought by the relator against one Pearl Darling, the court made an order directing her to furnish a bill of particulars.

Case by August C. Preuschoff, administrator of the estate of Conrad H. Huber, deceased, 'against the B. Stroh Brewing Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error. Defendant’s brewery is situated between Elizabeth and Columbia streets, in the city of Detroit. These streets run east and west, Elizabeth street being on the south.

Assumpsit by the Howell Electric Light & Power Company against the village of Howell to recover for street lighting. From a judgment for plaintiff on verdict •directed by the court, defendant brings error.

Case by George W. Cole, adininistrator of the estate of Winifred Cole, deceased, against the Detroit Electric Railway and the Detroit United Railway, for the alleged negligent killing of plaintiff’s intestate. From a judgment for plaintiff, defendants bring error. Plaintiff’s daughter Winifred, 2£ years old, was run over and killed by the defendant’s car, which was running north on the easterly one of the two tracks on Fourteenth avenue at the intersection with Harper avenue.

Mandamus by the Central Bitulithic Paving Company, and the common council of the city of Manistee and others, to compel Aaron V. M'cAlvay, circuit judge of Manistee county, to dissolve a preliminary injunction. On April 7, 1902, the electors of the city of Manistee authorized the issuance of bonds for $125,000 for the purpose of paving its streets.

Case made from Marquette; Stone, J. Stipulated case between the city of Marquette and the Michigan Iron & Land Company, Limited, to determine the latter’s liability for taxes. There was a judgment for plaintiff, and defendant assigns error.

Assumpsit by Mary J. June against Sophie E. Labadie and Joseph A. Labadie on a promissory note. From a judgment for defendants, plaintiff brings error. Plaintiff and defendant Sophie are sisters. The suit »was commenced in justice’s court upon a promissory note, which reads as follows: “$142.04.

Bill by Clara S. Morley, administratrix de bonis non of the estate of George I. Quimby, deceased, against Rmeline K. Quimby, Alice F. Uhl, executrix of the last will and testament of Edwin F. Uhl, deceased, John T. Byrne, and others, for the foreclosure of a mortgage. From a decree for complainant, defendant Uhl appeals.

Replevin by Clarence W. Althouse against John G. McMillan and Charles E. Eord. From a judgment for plaintiff on verdict directed by the court, defendants bring error.

La vina O. Orampton presented a claim against the estate of Grace H. Newton, deceased, based on certain promissory notes. Claimant prevailed before the commissioners and in the circuit court, and William Newton, administrator with the will annexed, brings error.

Bill by John B. Corliss against the village of Highland Park and William H. Davison, village treasurer, to restrain the collection of a special assessment. The Detroit Savings Bank intervened as the owner of a warrant payable from said assessment. From the decree rendered, all parties appeal. In 1899 the common council of the village of Highland Park took proceedings to establish sewer district No. 17, and to construct a sewer in the district.

Bill by the F. II. Wolf Brick Company against Andrew Lonyo to enjoin the removal of a line fence. From a decree dismissing the bill, complainant appeals. Complainant and defendant own adjoining lands.

Case by Charles E. Purvis against James A. Segar and others for the illegal sale of liquor to plaintiff’s minor son. Prom a judgment for plaintiff, but awarding costs to defendants, plaintiff brings error.

Case by William Flaws against the West Bay City Shipbuilding Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Defendant is a shipbuilder, owner of a large plant, and employs a large number of men. It manufactures and uses steel plates weighing from 150 to 1,600 pounds. It is necessary to trim these plates. For this purpose they must be raised about three feet from the ground.

Bill by George A. Day against Egbert A. Davey' and Alice L. Davey to set aside certain tax deeds. From a decree for complainant, defendants appeal.

<p>Error to Wayne; Rohnert, J.</p> <p>Case by Joseph McBride against John Scott, Arthur Scott, and Maxwell H. G-rylls (copartners • as John Scott & Co.), Alexander Chapoton, James M. Wood, and others, for injuries caused by the collapse of a building. From a judgment for defendants on demurrer to the replication to their plea puis darrein continuance, plaintiff brings error.</p>

Case by August Berlin, by next friend, against William B. Mershon & Company, for personal injuries. From a judgment for plaintiff, defendant brings error.

<p>Error to Clare; Dodds, J.</p> <p>Trover by Sheldon Lake against the Pere Marquette Railroad Company. From a. judgment for plaintiff, defendant brings error.</p>

Mandamus by Brayton Saltonstall to compel the board of review of the city of Cheboygan to modify an assessment. From an order denying the writ, relator brings certiorari.

<p>1. Appeal — Taxes—Objections Not Made in Answer.</p> <p>Objections to a tax which were not.made in the contestant’s answer to the petition of the auditor general will not be considered on appeal.</p> <p>2. Municipal Corporations — Special Assessments — Waiver of Irregularities.</p> <p>Where a city charter does not provide that a petition for paving or macadamizing streets shall be signed by any specific number or class of inhabitants, and does not expressly deny to the council the authority to levy a special assessment for such improvement without a petition, a landowner, knowing that a pavement is being laid, and making no objection until he files his answer to the tax petition of the auditor general, cannot complain that the petition to the council to “take immediate steps to repair and place the street in first-class condition ” was not sufficiently specific.</p> <p>3. Same — Resolution of Council — Necessary Vote to Pass.</p> <p>A city charter provision that no resolution or proceeding of the common council imposing taxes or assessments, and no ordinance, shall be passed at the same meeting at which it is introduced, if there be any objection; and no ordinance shall be passed except by a two-thirds vote of the aldermen elect, —does not require a resolution imposing taxes to be passed by a two-thirds vote.</p> <p>4. Same — Special Assessment Roll — Confirmation by Council.</p> <p>The action of the common council of a city in passing a resolution that a special assessment roll, as reported by the city engineer, “be and the same is hereby accepted and adopted,” will be treated as a confirmation, under a charter provision requiring that the common council shall by resolution confirm the same.</p> <p>5. Same — Presumptions as to Performance of Duty.</p> <p>It will not be presumed that a common council neglected to perform its duty in reviewing and examining a special assessment roll, as required by the city charter.</p> <p>6. Same — Notice of Hearing.</p> <p>A charter provision which requires notice that a special assessment roll has been completed to be given in two weekly publications of the official newspaper of the city, and allows two weeks from the first publication for filing objections, is not invalid for failure to provide reasonable notice.</p> <p>7. Same — Review oe Roll.</p> <p>Where the charter requires the common council to review a special assessment roll and consider objections, it is competent for the legislature to leave the time and place of hearing to be determined by the council.</p>

Ejectment by Louise Moross against Victor J. Moross and another. Prom a judgment for plaintiff on verdict directed by the court, defendant Moross brings error. Plaintiff obtained a decree of divorce from her husband, the defendant, for extreme cruelty, on July 29, 1889. On January 16, 1901, she instituted this suit in ejectment to recover her dower interest in her husband’s lands. The defense is that her right of action is barred by the statute of limitations.

Bill by Fred E. Gregory, surviving executor of the last will and testament of William Ten Eyck, deceased, against Anna M. Tompkins, Maria B. Sloss, and Sarah Tompkins, for a construction of said will. From a decree for defendant Anna, complainant and the other defendants appeal.

Ejectment by George Lasley, Peter Lasley, and Isabel A. Lasley against William P. Preston. From a judgment for plaintiffs on verdict directed by the court, defen dánt brings error.

Ejectment by the city of St. Joseph against Louis S. Schulz. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by Harrison Geer, Joseph Turner, and Hezekiah M. Gillett, trustees, against the Traders’ Bank of Canada, to set aside an attachment levy. From a decree for complainants, defendant appeals.

Case made from Wexford; Chittenden, J. Case by Everett Brunick against the Ann Arbor Railroad Company for the alleged negligent killing of plaintiff’s cattle. There was a judgment for defendant on verdict directed by the court, and plaintiff assigns error.

Assumpsit by Henry B. Pollock, Charles A. Pettihone, and William H. Chapman, copartners as Pollock, Pettibone & Chapman, against the German Fire-Insurance Company of Pittsburg, Pennsylvania, on a policy of insurance. From a judgment for plaintiffs on verdict directed by the court, defendant brings error.

<p>1. Chancery Appeal — Findings oe Court.</p> <p>In a chancery case, where the question is a doubtful one, the Supreme Court will give great weight to the findings of the circuit court on questions of fact, but will examine the case de novo, and, if satisfied that a different conclusion should have been reached, will reverse the decree.</p> <p>. 2. Collateral Security — Discharge oe Mortgage — Accounting.</p> <p>Complainant assigned a mortgage to a bank as collateral security for a loan of less than the amount of the mortgage. The bank foreclosed the mortgage, which it afterwards discharged upon receipt of only the amount due it on the loan. Held, that the evidence showed that the mortgage was discharged at the request of complainant, and that a bill for an accounting for the difference between the amount of the loan and the mortgage could not be maintained against the bank.</p>

Bill by Sidney T. Miller, trustee, against Joseph R. McLaughlin, Robert J. McLaughlin, Collins B. Hubbard, Anna Georgina Hubbard, George Dingwall, and others, to foreclose certain mortgage securities. From an order overruling demurrers to the bill, defendants Hubbard and Dingwall appeal. This is a suit to foreclose certain mortgage securities. The bill is long, and sets forth in full the various instruments which are the subject of controversy.

Case by Elizabeth Rick, administratrix of the estate of Ferdinand Rick, deceased,,against the Saginaw Bay Towing Company, for negligently causing the death of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Mandamus by John Mahan to compel the Michigan Telephone Company and the Detroit Telephone Company to furnish service to. relator. From an order granting the writ, respondents bring certiorari.

<p>1. Landlord and Tenant — Money Had and Received.</p> <p>The owner of land cannot, under a count for money had and received, recover, from a person to whom the tenant has attorned, the rent paid by the tenant.</p> <p>2. Same — Guaranty.</p> <p>Defendant leased certain premises, and agreed to save the tenant harmless from loss or damage on account of an adverse claim of ownership made by plaintiff. After plaintiff's right had been established, the tenant assigned to her his claim for rent paid under the lease. She then brought suit against defendant for the money paid by the tenant. Held, that she could not recover under the guaranty, as no suit for damages had been brought against the tenant.</p>

Case by Samuel W. McChesney against Ari W. Wilson for the alleged willful killing of plaintiff’s dog. From a judgment for plaintiff on verdict directed by the court, defendant brings error. This suit originated in justice’s court, and was appealed to the circuit court, where plaintiff recovered a verdict and judgment for $20 for the value of his dog, which was shot and killed by the defendant.

Assumpsit by Joseph E. Ooveney against Frank Phiscator for money alleged to have been paid under duress of imprisonment. From a judgment for plaintiff, defendant brings error.

Bill by Thomas F. Cole against Perry F. Powers, auditor general, to restrain the issuance of a certificate of error. From a decree for complainant, defendant appeals.

Mandamus by Royal M. Hyde to compel Edwin N. Chadwick, justice of the peace, to issue a summons to show cause against a garnishee defendant. From an order denying the writ, relator brings certiorari.

James M. Bray and Leander Choate presented a claim, against the estate of George N. Fletcher, deceased (represented by Frank W. Fletcher and Allan M. Fletcher, executors), for damages for the breach of the covenants in a deed. The claim was disallowed by the commissioners, and claimants appealed to the circuit court. From a judgment for defendants on verdict directed by the court,, claimants bring, error.

Case by Nora Isabella Kyes, administratrix of the estate of Roderick Kyes, deceased, against the Valley Telephone Company, for alleged negligent injuries to her intestate. From a judgment for plaintiff, defendant brings error. The deceased, Roderick Kyes, was a general foreman on the work of paving Saginaw street, in the city of Flint. The defendant had been notified to remove its telephone poles from the street, and was engaged at that work. The wires had been removed.

Bill by the M. C. Bullock Manufacturing Company against the Sunday Lake Iron Mining Company, James Corrigan, Stevenson Burke, and Price McKinney to determine the priority of certain liens. From a decree for defendants, complainant appeals.

<p>1. New Trial — Weight of Evidence.</p> <p>The decision of the trial court in denying a motion for a new trial, based on the ground that the verdict was against the weight of the evidence, will not be reversed, where the only question was whether a street car was in motion at the time plaintiff attempted to alight, and her testimony that it was not in motion was corroborated by other evidence, although the conductor and six passengers testified that it was in rapid motion.</p> <p>3. Street Railways — Negligence—Evidence.</p> <p>Testimony by plaintiff that, while she was holding to the rail of a street car with her left hand, with her foot out to step on the ground, she heard the bell ring, became insensible, and, on regaining consciousness, found her left arm pulled out of its socket, warrants the jury in finding that the car started as she was alighting.</p>

Case by Felix Cornelissen and Pbilomena Cornelissen against Felix J. Ort, and also Reuben Hatch and Hugh E. Wilson, copartners as Hatch & Wilson, for damages for failure to perfect an appeal. From a judgment for plaintiffs against defendant Ort only, plaintiffs bring error.

<p>Deeds — Consideration — Support — Breach of Condition — Trusts.</p> <p>Complainant conveyed his homestead to defendant in consideration that he should be furnished “ a comfortable house to live in, good board and lodging, clothing, and all necessaries of life.” After living with defendant for a year and a half, he left without cause, and defendant published a notice forbidding any one to trust or harbor him on his account. On a bill by complainant to set aside the deed, it was held that a decree should be entered compelling defendant to pay for complainant’s maintenance since the publication of the notice and until complainant should choose to return, declaring the conveyance a trust to secure the performance of defendant’s obligations, and, upon failure to perform such obligations, the property should revert to complainant.</p>

<p>1. Railroads —Negligent Injuries at Crossing — Statutory Signals — Questions ror Jury.</p> <p>The testimony of the plaintiff, under the circumstances of this case, that defendant’s train struck the wagon in which she and her husband were crossing defendant’s tracks in the highway, causing the team to run away, whereby she was injured, and that they stopped, looked, and listened before crossing the tracks, and heard nothing, made a proper case for the jury.</p> <p>2. Appeal — New Trial — Trial by Jury.</p> <p>The Supreme Court has no power to enter a verdict contrary to the finding of a jury, but it may, under 3 Comp. Laws, § 10504, reverse the decision of the circuit judge denying a motion for a new trial; such action is not contrary to the constitutional provision securing the right to a trial by a jury, as it gives the party a right to a new trial by another jury.</p> <p>3. Same — Presumptions—Decision or Trial Court.</p> <p>In determining whether a trial court should have granted a new trial, the Supreme Court will bring to the support of his decision all reasonable presumptions which arise from his superior opportunity to determine the credibility of witnesses.</p> <p>4. Same — Preponderance or Evidenoe.</p> <p>When it is apparent from the record, notwithstanding the presumptions in favor of the decision of the trial judge, that he erred in refusing to grant a new trial on the ground that the verdict was against the weight of the evidence, his decision will be reversed.</p> <p>5. Same — Injuries at Railroad Crossing.</p> <p>In an action against a railroad company, plaintiff was the only witness who testified that the runaway of her team was caused by a collision with defendant’s train; the trainmen testified that there was no collision, and several people residing near the crossing testified that her team ran away before reaching the crossing, — one that the train passed the crossing several minutes before the runaway. Held, that a verdict for plaintiff should be set aside as against the weight of the evidence.</p>

Petition by Eoscoe D. Dix, auditor general, for the sale of lands delinquent for the taxes of 1898: On objections filed by Amos J. Hughitt and others. From a decree declaring the taxes void in part only, respondents appeal. The respondents are the owners of lands situated in the township of Iron Eiver, Iron county.

Assumpsit by Henry Varty against Charles L. Mess-more for money had and received. From a judgment for plaintiff, defendant brings error.

Case by Gilbert C. Roulo against Laurence Minot and others for personal injuries. From a judgment for plaintiff, defendants bring error.

<p>1. Wills — Vested Interests.</p> <p>A clause in a will bequeathing to a son a one-third interest in testator’s real estate, followed by a clause directing the executor to keep the real estate together until the youngest granddaughter should arrive at the age of 21 years, rendering the net proceeds to the devisees according to their shares, unless he should think it would be better for all the heirs to make an earlier division, and providing that, if any heir should die before the youngest granddaughter should arrive at the age of 21 years, leaving no child, then his share should be divided equally among the surviving heirs, does not give the son a vested interest.</p> <p>2. Same — Interest of Devisee.</p> <p>A mortgage of his interest in real estate under such will by the son, who dies, without issue, before the youngest granddaughter arrives at the age of 21 years, cannot be foreclosed.</p> <p>3. Same — Powers—Mortgage.</p> <p>The clause in the will providing that the executor should keep the real estate together, unless he should think it better to make an earlier division, does not empower him to direct or consent to a mortgage on the undivided interest of a devisee.</p>

<p>Appeal from Kalamazoo; Adams, J.</p> <p>Bill by the Michigan Central Railroad Company against the Chicago, Kalamazoo & Saginaw Railway Company and the Kalamazoo Paper Company to enjoin interference with certain side tracks. Prom a decree dismissing the bill, complainant appeals.</p>

Assumpsit by Walter J. Scully against the Detroit Iron Furnace Company for the breach of a contract for the sale of wood. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Error to Cheboygan; Shepherd, J.</p> <p>Assumpsit by James Morin against Benjamin Eobarge for work and labor. From a judgment for plaintiff, defendant brings error.</p>

<p>1. Partnership — Failure to Perform Agreement — Profits.</p> <p>Where, under a partnership agreement for cutting and manufacturing timber, complainant was to furnish the timber, defendant to defray the expenses, and the proceeds were to be divided equally, and a large amount of timber was cut, defendant, who failed to make further advances, and forbade complainant to sell the lumber, cannot thereafter claim profits which might have resulted from the successful operation of the enterprise.</p> <p>2. Same — Accounting—Debts.</p> <p>On a bill for an accounting, unpaid accounts against a part, nership should be paid by the receiver out of the assets, and not charged to either party.</p> <p>3. Same — Harmless Error.</p> <p>A decree of the circuit court for complainant on a partnership accounting will not be decreased because of an error in giving complainant a credit, which is more than offset by an excessive credit to. defendant, due to a concession based upon a mistaken computation, though complainant has not appealed.</p> <p>4. Appeal — Decree—Amount.</p> <p>A decree will not be increased in amount in favor of a party who has-not appealed.</p>

Bill by Susanna Wagner against John Wagner for a separation from bed and board and for maintenance. From the decree rendered, complainant appeals. Complainant filed a bill against the defendant, her husband, for a decree from bed and board, under section 8022, 3 Comp. Laws, and for separate maintenance, under section 8654.

<p>Chancery Decree — Jurisdiction.</p> <p>A decree is not void for want of jurisdiction because the judge had previously filed an opinion stating that the testimony was conflicting, and not clear, and that the decree would remain open for further hearing upon matters to happen after the filing of the opinion, though there was no subsequent hearing.</p>

Bill by William Wreford and others against the city of Detroit and Thomas M. Lucking, receiver of taxes, to restrain the collection of an assessment. From a decree dismissing the bill, complainants appeal. Bagley avgnue, in the city of Detroit, formerly knbwn as “Macomb Avenue,” in 1876 was graded and paved, with a roadway 40 feet wide, the entire cost of which was assessed upon the abutting property, which includes that of the complainants.

Clair; Law, J. Mandamus by the Lambton Loan & Investment Company to compel Charles W. Adams, circuit court commissioner of St. Clair county, to issue a writ of restitution. From an order granting the writ, respondent brings certiorari. The relator has the record and legal title to lot 13, block 23, White’s plat, city of Port Huron.

Case made from Clare; Dodds, J. Assumpsit by the Merchants’ Exchange Company against Louis Weisman for goods sold and delivered. Plaintiff had judgment for less than the amount claimed, and assigns error. This case was tried before the court without a jury, and the facts agreed upon.

Replevin by Julia A. Small, executrix of the last will -and testament of Robert B. Small, deceased, against Middie E. Robarge. From a judgment for plaintiff, ■defendant brings error.

Bill by Sarah M. Dayton against Jacob Stahl to declare a deed to be a mortgage, and to redeem therefrom. From a decree dismissing the bill, complainant appeals.

<p>New Trial — Weight of Evidence — Third Verdict.</p> <p>After two verdicts in favor of plaintiff liave been set aside as against tbb weight of the evidence, the court is justified in refusing to set aside the third verdict in his favor for the same reason, where there is substantial evidence to support it. Hooker, O. J., dissenting.</p>

Certiorari by Daniel J. Campau to review the action of the highway commissioner and township board of Grosse Pointe in changing the grade for the macadamizing of Jefferson avenue in said township. From a judgment for plaintiff, defendants bring error. Appeal from Wayne; Brooke, J. Bill by Daniel J. Campau and others to restrain the township board and highway commissioner of tírrosse Pointe, and others, from changing the grade for the macadamizing of Mack avenue.

<p>Error to Gladwin; Sbarpe, J.</p> <p>Case by Joseph D. McDonald against the Michigan Central Railroad Company for personal injuries. From a j udgment for plaintiff, defendant brings error.</p>

Bill by Hector McAllister against Edward Des Rochers and others to enforce a mechanic’s lien. Defendants John Eunkey, Sr., the Portage Lake Hardware Company, Limited, and David McIntyre filed separate cross-bills to foreclose similar liens. From a decree dismissing the several bills, the lien claimants appeal. Complainant was a laborer, and performed work upon a house erected upon a lot of defendant Des Rochers.

Assumpsit by Frank Gustafson, administrator, with the will annexed, of the estate of Augusta D. Gustafson, deceased, against Mary A. Eger, upon a promissory note. From a judgment for defendant, plaintiff brings error.

Bill by Michael Ivundinger .against the city of Saginaw, William B. Baum, mayor, Alfred Davies, clerk, the board of public works, and the National Bridge Company, to enjoin the carrying out of a contract for the construction of a bridge. From a decree dismissing the bill, complainant appeals.

Mandamus by James Reid and others to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate an order requiring an excessive appeal bond.

Bill by Rebecca R. Smith against Mary Marsh, administratrix of the estate of Jane Lamb, deceased, James B. Lamb, Ellen Clifford, and Isabella Clifford, to set aside a deed. From a decree for complainant, defendants Lamb and Clifford appeal. Complainant and defendants are brother and sisters, the children of James and Mary Lamb, deceased. James and Mary lived in Canada, where James owned an extensive farm. He died some time prior to 1807. Jane and Rebecca were twins.

<p>Exceptions before judgment from Ingham; Wiest, J.</p> <p>D. Judson Hammond was convicted of soliciting a bribe.</p>

<p>Certiorari to Wayne; Frazer, J.</p> <p>William Mitchell petitioned the circuit court to vacate a transcript judgment entered against him by Edward Frohlich. From an order denying the petition, Mitchell brings certiorari.</p>

Mandamus by Ira M. Clarke to compel William H. Hill, secretary of the W. H. Hill Company, to transfer certain shares of stock. From an order granting the writ, respondent brings certiorari.

Case made from Branch; Yaple, J. Ejectment by Olivia C. Earrand against Francis Kavanaugh and Morris Kavanaugh. There was a judgment for plaintiff, and defendants assign error.

Bill by Philimen Barron and others against Joseph Mercure and another to remove a cloud from title. Prom a decree for complainants, defendants appeal.

<p>1. Wills — Legacy for Life — Possession of Legatee.</p> <p>Under a will giving the property of the testator to his executor, to the intent that his wife should have the full use, benefit, and enjoyment of it for her life, with the remainder after her death to his children, the personal representative of the testator may recover from the wife the amount of money belonging to the estate, and in her possession at the time of the death of the testator. Hull v. Hull, 122 Mich. 338.</p> <p>2. Gift Inter Vivos — Joint Control of Bank Account.</p> <p>A man had an account with a bank, which was so arranged that his wife could draw the money as well as himself. He told the bank teller it was as much her money as his. At the time of executing his will, he said the money in the bank belonged to his wife; that she had the same control over it that he had. Held, that the testimony did not indicate that he had ever deprived himself of authority over the fund, and therefore did*not show a gift inter vivos.</p> <p>3. Husband and Wife — Agency of Wife — Termination.</p> <p>The authority given a wife to use her husband’s money is terminated by his death.'</p>

Assumpsit by Elizabeth H. Avery, John H. Avery, and George E. Avery, executors of the last will and testament of Darius N. Avery, deceased, against the Preston National Bank, for money had and received. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.

Gertiorari to Shiawassee; Smith, J. Mandamus by the village of Durand to compel the board of supervisors of Shiawassee county to allow certain claims. From an order granting the writ, respondent brings certiorari.

Assumpsit by the' Ontario Powder Works against Daniel W. Powell and Edward Mitchell, copartners as Powell & Mitchell, on a foreign judgment and certain promissory notes. From a judgment for plaintiff on verdict directed by the court, defendants bring error.

Bill by Henry F. Austin and others against Mary J. Austin, Robert O. Wallace, and others for the partition of certain real estate. From an order confirming the report of the commissioners, defendant Wallace appeals.

Petition by Perry F. Powers, auditor general, for the sale of land delinquent for taxes: On objections filed by the Buckeye Iron Company. From a decree for petitioner, defendant appeals.

Exceptions before judgment from Gogebic; Steere, J., presiding. Otto E. Karste was convicted of misappropriating money placed in his hands for investmént.

Bill by Lyman H. Dunn and Thomas T. Allen against Robert W. Dunn and George McNichol for the specific performance of a land contract. From a decree dismissing the bill, complainants appeal.

Assumpsit by Alonzo M. Brown, drain commissioner of Saginaw county, against Martin Kennedy and others, to recover the costs and expenses incurred under an application for a drain. From a judgment for defendants, plaintiff brings error.

<p>1. Title to Lands — Estoppel.</p> <p>Interests in land cannot rest on estoppel alone.</p> <p>2. Railroads — Land Contracts — Possession.</p> <p>A land contract by the terras of which the vendor agreed to convey a strip of land to a railroad company for a right of ' way when it should have definitely settled upon and located its line and determined upon the construction of the road, but giving no right of possession, even when construed in the light of the statute (2 Corap. Laws, § 6234), does not give the railroad company a right of possession that will constitute a defense to an action of ejectment, though the road has been constructed and possession maintained for a time. Grant, J., dissenting.</p>

Mandamus by La Fayette Owen and others to compel De Witt H. Moreland, commissioner of public works of the city of Detroit, to approve a plat of certain lands. From an order denying the writ, relators bring certiorari.

), J., presiding. Bill by John J. Bale against the Michigan Tontine Investment Company and others for an accounting and the appointment of a receiver. From an order overruling a demurrer to the bill, defendants appeal.

Assumpsit by Sidney M. Constantine against the Kalamazoo Beet Sugar Company upon a contract of indemnity. From a judgment for plaintiff, defendant brings error. The defendant owns and operates a beet sugar factory. May 1, 1899, two parties (Keys and Constantine) made a contract with the defendant by which they agreed to grow 40 acres of sugar beets, and sell the proceeds thereof at given prices to the defendant.

<p>Error to Charlevoix; Mayne, J.</p> <p>Case by Thomas O’Neil against Austin C. Newman for killing plaintiff’s dog. Prom a judgment for plaintiff* defendant brings error.</p>

Case by Addie M. Tracey against the township of South Haven for personal injuries. From a judgment for plaintiff, defendant brings error.

Case by Emilie Cron, administratrix of the estate of Adam Cron, deceased, against the Toledo & Monroe Railway, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Error to Wayne; Donovan, J.</p> <p>Case by George Cronin against the Russel Wheel & Foundry Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.</p>

<p>Error to Wayne.; Frazer, J.</p> <p>Assumpsit by Minnie Rhode against the Metropolitan Life-Insurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by Hayden W. Wheeler, Hayden H. Butts, Oliver G. Fessenden, Walter N. Walker, and Willard H. Wheeler, copartners as Hayden W. Wheeler & Company, against Fred L. Baker, for money had and received. From a judgment for defendant, plaintiffs bring error.

Trover by Franklin L. Lord against the Detroit Savings Bank and others. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

<p>Appeal from Wayne; Rohnert, J.</p> <p>Bill by Charles Schwartz against Fremont Woodruff to foreclose a land contract. From a decree for complainant, defendant appeals.</p>

Bill by Isaac H. Matteson against Samuel Elias Matte-son and others in aid of execution. From an order overruling a demurrer' to the bill, defendants appeal.

(Brooke and Donovan, JJ., dissenting). Mandamus by the Detroit Fire & Marine Insurance Company against John C. Hartz and others, composing the board of assessors of the city of Detroit, and the common council of said city, to compel the reduction of an assessment against relator. From an order denying the writ, relator brings certiorari.

Bill by Willard C. Lyon, trustee in bankruptcy of the estate of Fred E. Hazle and Frank B. Clark, against Nathaniel J. Clark and Mary E. Clark, to set aside a deed. From a decree for complainant, defendants appeal.

, presiding. Assumpsit by Cynthia A. Blackburn against William A. Blackburn for money had and received. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Assumpsit'by William Reid against the Detroit Ideal Paint Company for goods sold and delivered, in which defendant sets off a claim based upon a subscription to its capital stock. From a judgment for plaintiff, defendant brings error.

<p>1. Slander — Evidence—Exceptions—Appeal.</p> <p>The defendant in an action for' slander cannot complain because the judge limited certain evidence to mitigation of damages, where no exception was taken, and his counsel stated it was not offered in justification.</p> <p>2. Same — Words Actionable Per Se.</p> <p>Testimony in an action for slander, showing that plaintiff was in possession of certain goods, does not warrant an instruction that the words, “You broke in there and stole some goods, the other day, out of the house,” are not actionable per se, where it does not appear that defendant and all the hearers knew the circumstances which rendered it impossible for plaintiff to steal them.</p> <p>3. Same — Instructions.</p> <p>Where the court, at the request of plaintiff, instructed the jury that, if they found that defendant used the language charged in the declaration, their verdict must be for plaintiff, and, at the request of defendant, instructed them that the words were not actionable unless intended to impute a crime, and that the action could not be maintained if they were accompanied by an explanation showing a crime was not committed, the jury must have understood that the instruction given at the request of plaintiff was qualified by those given at the request of defendant, and the question whether the language was actionable per se was left to the jury.</p> <p>4. Same — Damages.</p> <p>Where, under the testimony in an action for slander, the words used were actionable per se, and the judgment was for $00, defendant was not injured by an instruction that, if the words were intended and understood to charge only a tres, pass, the jury should not award any damages that would be excessive.</p>

<p>1. Master and Servant — Personal Injuries — Assumption op Risk.</p> <p>An employe was injured by the fall of an air hoist suspended from a horizontal track, kept in place by flanges on the wheel and the force of gravitation. By reason of the neglect of a fellow-workman properly to regulate the air pressure after using the hoist, the piston descended, and, striking something, lifted the hoist from the track, so that it fell upon plaintiff. Held, that, as the danger from the defective attachment — i. e., that any force raising the hoist would tend to detach it, and permit it to fall — was apparent to any careful observation, it was assumed by plaintiff.</p> <p>2. Same — Knowledge op Danger.</p> <p>By the terms of his employment, a'servant agrees that dangers obviously incident to the discharge of his duty shall be at his risk, and it is unimportant whether he is informed or knows of the particular danger to be apprehended.</p> <p>3. Same — Knowledge op Foreman — Warning op Danger.</p> <p>The fact that defendant’s assistant foreman knew that a hoist fell, through the negligence of an employé, some days before plaintiff’s injury, did not charge defendant with knowledge thereof, so as to require a warning to servants of the danger.</p>

<p>Exceptions before judgment from Van Burén; Carr, J.</p> <p>Nelson R. Goodrode was convicted of polygamy.</p>

<p>1. Bribery — Information—Sparrow Bounties.</p> <p>An information charging respondent with bribing a village clerk to issue false sparrow certificates under 2 Oomp. Laws, §§ 5586-5589, was not defective in not containing the word “English” before the word “sparrow,” where the information showed on its face that the sparrow certificates contemplated were such as could only be issued in compliance with the statute, and there was no chance for misapprehension.</p> <p>2. Same — Evidence— Prior Offenses — Intent.</p> <p>In a prosecution for bribing a village clerk to issue false sparrow certificates, testimony of prior similar transactions, coupled with evidence tending to show a conspiracy with another to continue them, was admissible for the purpose of characterizing and making clear the purpose of respondent in the payment of the money upon which the prosecution was based.</p> <p>8. Trial — Instructions—Failure to Give Requests.</p> <p>Failure to give a request of respondent is not error where the subject is fully and fairly covered by the general charge.</p> <p>4. Same — Argumentative Charge — Prior Offenses.</p> <p>The charge in this case, which, on the whole, was eminently fair, was not erroneous for being argumentative, and in condemning the admitted misconduct of respondent, as the language complained of was used in an attempt to prevent the danger incident to testimony regarding prior offenses.</p> <p>5. Same — Misstatement of Evidence.</p> <p>A statement by the court in his charge that an important fact was admitted, when it appears from the evidence that respondent had denied it, is error.</p>

<p>Error to Wayne; Rohnert, J.</p> <p>Trover by the Detroit Electric Light & Power Company, Hoyt Post, receiver, against Isaac Applebaum and Alexander C. Cohen, copartners as I. Applebaum & Co. Prom a judgment for defendants, plaintiff brings error.</p>

<p>Appeal from Kalamazoo; Adams, J.</p> <p>Bill by Elma Cahill-Emery, individually and as guardian of Lee H. Cahill and Margaret Cahill, heirs at law of Leroy Cahill, deceased, against the Kalamazoo & Hastings Construction Company, Limited, William S. Dewing, James H. Dewing, and Charles A. Dewing, copartners as Dewing & Sons, Martha A. Watson, executrix of the estate of Amasa B. Watson, deceased, Annie E. Cobb, executrix of the estate of Thomas S. Cobb, deceased, Edward Woodbury, Henry E. Badger, G. Edwin Dunbar, Charles S. Burton, Frank A. Bush and Benjamin A. Bush, administrators of the estate of Frederick Bush, deceased, E. A. Bush and B. A. Bush, administrators, and Thomas Paterson, doing business as Bush & Paterson, and the Chicago, Kalamazoo & Saginaw Railway Company, to-rescind certain action of the managers of the Kalamazoo & Hastings Construction Company, Limited, and to wind up its affairs. From a decree dismissing the bill, complainant appeals.</p>

Case by William Fischer against William Goldie for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by the Central Savings Bank against George M. O’Connor and William J. Hammond on promissory notes. From a judgment for plaintiff non obstante veredicto, defendants bring error.

Replevin by Edward Nichols and another against Victor Monjeau. From a judgment for plaintiffs on verdict directed by the court, defendant brings error.

Petition by Thomas M. Lucking, receiver of taxes for the city of Detroit, against John Ballantyne, receiver of W. J. Gould & Company, to compel the payment óf certain taxes. From a decree for petitioner, defendant appeals.

, presiding. Case by Robert Beutel against the West Bay City Sugar Company to recover damages ‘for an alleged interference with a right of ingress and egress to a street. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Clair; Thomas, J. Ejectment by JohnW. Thomson, Jr., and Kate V. Calder against the McMorran Milling Company, the Chicago & Grand Trunk Railway Company, and the Elint & Per© Marquette Railroad Company. Plaintiffs had judgment against defendant Flint & Pere Marquette Railroad Company, and filed a suggestion of claim for mesne profits. From an order granting a motion to quash the service and strike from the files the suggestion of claim, plaintiffs bring certiorari.

Bill by William J. Just and Isaac N. Just, administrators of the estate of Josiah E. Just, deceased, against the State Savings Bank of Ionia, the Belding Savings Bank, the Ionia County Savings Bank, and Ella V. Just, to reduce to possession and determine the title to certain certificates of stock. From the decree rendered, complainants and the Ionia County Savings Bank appeal.

Bill by Clarence H. Booth and Walter E. Booth against Charles A. Murdock, Austin E. Wing, administrator of the estate of Charles F. Murdock, deceased, and Eugene H. Sloman, for the specific performance of a contract. From a decree dismissing the bill, complainants appeal.

Bill by Bobert Hopkins and others against Luke Orossley and others to set aside a trust. From a decree dismissing the bill, complainants appeal.

Assumpsit by Edwin M. Mull against Frank H. Smith for money had and received. From a judgment for defendant, plaintiff brings error.

Clair; Tucker, J., presiding. Bill by Delos Purdy against Eugene E. Law to remove a cloud from title. From a decree dismissing the bill, complainant appeals.

Assumpsit by William H. Cleveland against Sigmund Rothschild to recover the purchase price of certain corporate stock. From a judgment for defendant on verdict -directed by the court, plaintiff brings error.

Petition by Perry P. Powers, auditor general, for the sale of land delinquent for taxes: On objections filed by Mary A. Chase. Prom a decree for petitioner, defendant appeals.

Bill by Williams Brothers Company against Charles Hanmer, John Jollands, and Henry Jollands to compel the assignment of a chattel mortgage. From a decree for complainant, defendants appeal.

Assumpsit by Walter C. Glines against tbe State Savings Bank of Detroit for money bad and received. From a judgment for plaintiff, defendant brings, error. Tbe plaintiff bad been a commercial depositor for from 12 to 16 years in tbe bank of A. Ives & Sons of Detroit. On Saturday, September 8, 1900, be deposited in said bank a check for $300 drawn upon Fleiscbmann & Co., of Cincinnati, Ohio. He received credit for tbis amount on tbe bank’s books and on bis own deposit book.

Case by Edith Navarre Fitzgerald against the city of Benton Harbor for personal injuries. From a judgment for plaintiff, defendant brings error.

Bill by Timothy O’Connor, trustee, against William J. Keenan and others, for a partition of certain lands. After a decree for partition, J. Ward Howland, executor of the last will and testament of John Ward, deceased, petitioned to be made a party, claiming as purchaser at certain mortgage sales; and from a decree declaring the sales void he appeals.

<p>Error to Wayne; Frazer, J.</p> <p>Assumpsit by Isabella Landsberg against the Tivoli Brewing Company for rent. From a judgment for defendant, plaintiff brings error.</p>

Case by Julius J. Huebner against Charles S. Nims, Nelson P. Arnold, Bela W. Jenks, Matthew D. Wagner, and Joseph J. Lescyzinski for failure to exact an adequate statutory bond. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

<p>Exceptions before judgment from Muskegon; Russell, J.</p> <p>Charles W. Jennings was convicted of violating the pure food law.</p>

<p>Error to St. Clair; Atkinson, J.</p> <p>Assumpsit by Gustave Putze against the Saginaw Valley Mutual Fire-Insurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.</p>

Petition by Asa W. Field, receiver of tbe estate of George B. Wiggins, insolvent, against John W. Howry, John H. Howry, and H. Kirk Howry, for a deficiency decree after a foreclosure sale. From a decree against defendant H. Kirk Howry alone, he appeals.

Assumpsit by Rosa H. Robinson against the United States Benevolent Society on a contract of accident insurance. From a judgment for plaintiff on verdict directed by the court, defendant brings error. On Friday, June 29, 1900, one Samuel Robinson, Sr., made a written application to the defendant for an insure anee policy. He resided at Charlotte, Mich. The defendant’s local agent at Charlotte was one Wilcox, who solicited the insurance and received the premium.