Volume 133 — Michigan Reports

<p>Certiorari to Bay; Shepard, J.</p> <p>Joseph Dupounce was convicted of-bastardy.</p>

<p>Appeal from Ingham; Wiest, J.</p> <p>Bill by Carrie L. Creyts against John Creyts for a divorce. From a decree dismissing the bill, complainant appeals.</p>

Mandamus by Kleber P. Rockwell, prosecuting attorney of Oakland county, to compel George W. Smith, circuit judge of said county, to vacate an order quashing an information.

Arthur L. Rich was convicted of an assault with intent to commit the crime of rape, and sentenced to imprisonment in the State house of correction and reformatory at Ionia for two years and six months.

Bill by William A. Williams against Florence G. Williams and others to set aside a deed. From a decree for complainant, defendant Florence G. Williams appeals. The purposes of this bill are to set aside a deed executed October 30,1899, by Charles W. Williams, now deceased, to Florence G. Williams, one of the defendants, to determine who are at the present time the owners of the'lands described in the bill, and to secure a partition thereof.

Bill by John A. McKay, receiver of the Home Security Life Association,, against James Van Kleeck, receiver of the Home Security Association, to determine the respective rights and status of said parties. From a decree in favor of complainant, defendant appeals.

Bill by Thomas Carveth and Marietta Carveth against Clarendon C. Winegar and George Winegar to declare a conveyance absolute in form to be a mortgage, and for an accounting. From a decree for complainants, defendants appeal. The purpose of this bill is to have a deed absolute upon its face declared a mortgage, and that the complainants may be allowed to redeem therefrom.

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

Mandamus by the Berrien Springs Water-Power Company to compel Willis B. Perkins, circuit judge, presiding in Berrien county, to vacate an order dismissing a petition to condemn certain land.

<p>Habeas corpus proceedings by William Stegenga to obtain his release from the Kent county jail.</p>

Bill by John H. Frink and Annie Z. Frink against J. Wesley Hughes to enjoin the violation of a building restriction in a deed. From a decree for complainants, defendant appeals.

Bill by the New Era Association against Maggie Mactavish to set aside a contract of life insurance and enjoin an action for its collection. From a decree for defendant, complainant appeals.

<p>Appeal from Eaton; Smith, J.</p> <p>Bill by William Crane against John Waldron and Mary ' Ann Waldron in aid of execution. From a decree for complainant, defendants appeal.</p>

<p>1. Fraudulent Conveyances — Evidence—Sufficiency.</p> <p>A decree setting aside a conveyance as in fraud of creditors was sustained, though based on independent facts constituting badges of fraud, rather than on proof of a deliberate plan to defraud.</p> <p>2. Same — Consideration—Notice.</p> <p>Knowledge on the part of a transferee of property of his grantor’s intention to defraud creditors will invalidate the transaction, where the consideration consisted of part cash and part the discharge of an antecedent debt.</p>

Mandamus by Enoch C. White, prosecuting attorney of Lapeer county, to compel George W. Smith, circuit judge of said county, to vacate an order quashing a criminal complaint.

Proceedings by the Marquette & Southeastern Railway Company to condemn lands for a right of way. Respondents John M. Longyear and Mary H. Longyear appeal from the award and order of confirmation.

Quo warranto by Ormond F. Hunt, prosecuting attorney of Wayne county, on the relation of Frederick F. Snow, against Charles A. Buhrer, to determine the title to the office of treasurer of said county. From a judgment for respondent, relator brings error.

<p>Taxation — Railroads—State Board of Assessors — Authority —Rate of Taxation.</p> <p>The State board of assessors, provided for by the amendment of 1900 to article 14 of the Constitution, and Act No. 173, Pub. Acts 1901, in determining the average rate of taxation on property throughout the State other than railroad property, with a view to the assessment of the latter, should take as a ' basis the actual assessed valuation of such other property, as reported to it in accordance with said act, and it has no authority to increase such valuation on the theory that the assessments were too low.</p>

Mandamus by the Grand Rapids & Indiana Railway Company to compel Frederick W. Mayne, circuit judge of Charlevoix county, to set aside an order 'sustaining a demurrer to a plea in abatement.

Petition by Mary A. Metcalfe against Nerve D. Carr and others for the sale of certain devised lands. From an order dismissing the petition, petitioner appeals.

<p>1. Criminal Law — Witnesses—Grand Jury —Communications to Judge — Disclosure—Privilege. -</p> <p>Respondent, having been subpoenaed by the grand jury, informed the prosecuting attorney that he would like to talk with some one in whom he had confidence before testifying, and asked if he could not see the judge .who had impaneled such jury. The prosecutor took him to the judge’s room, to whom respondent stated that he wanted advice. The judge said that he could not give him any advice, and suggested that he see an attorney; but respondent objected that he was not acquainted with apy attorneys who were accessible. The judge thereupon told him that he could not advise him for his personal benefit, but would say that, while he was not obliged to testify to anything before the grand jury to incriminate himself, if he did testify, he should tell the truth, whatever it was; whereupon respondent, after a little delay, made a confession to the judge. Held, that such confession was a confidential communication, within the principle-applicable to the relation of attorney and client, and was inadmissible against respondent.</p> <p>2. Same.</p> <p>Such communication, having been made to the judge in-control of the grand jury, before whom respondent had been called as a witness, and might by such judge be compelled, to testify, was likewise privileged, within the rule governing testimony before such jury.</p> <p>Grant, J., and Hooker, O. J., dissenting.</p>

<p>1. Contracts — Public Policy.</p> <p>An undertaking read substantially as follows: “Return this" coupon to A., dealer in buggies, with §15, for which he will deliver to yon a book of four of these coupons. Sell these for §3.75 each, thereby getting your §15 back. Each of those to whom you sell a coupon sends to me, purchasing a book for himself. When your four coupons have been sent in, I have received §60, and you will be entitled to §60 worth of merchandise at my store, and it costs you but §3.75 and a few hours’ work selling the coupons. The right to redeem all coupons at any time is hereby reserved; and, in case of the exercise of such right, parties holding the same shall be allowed the full value on the purchase price of any article in my establishment. Parties purchasing coupons and being unable to dispose of them will also be allowed face value, less amount paid for first coupon, on the purchase price of anything in my establishment. Coupons will not be redeemable in any other manner than as above specified.” Held, against public policy.</p> <p>2. Bills and Notes — Consideration—Void Contract.</p> <p>A contract void as against public policy furnishes no consideration for a promissory note.</p> <p>3: Justices’ Courts — Pleading—Failure oe Consideration.</p> <p>1 Comp. Laws, § 767,-relating to pleadings in justices’ courts, provides that the plea of the general issue shall be in the same form as in the circuit court, and notice of any defense not admissible under the general issue shall be given with such plea. Sections 769 and 828, relating to the same subject, provide, in substance, that a failure or want of consideration, in whole or in part, may be shown in defense to an action on any contract; the latter section further providing that evidence of a partial failure or want of consideration shall not be admitted unless notice of such defense be given. Held, that the defense of a total failure of consideration is admissible under a plea of the general issue, without notice.</p>

Assumpsit by John R. Gordon against the Lansing State Savings Bank to recover the balance of a deposit. Eróm a judgment for plaintiff, defendant brings error.

Case by Louisa Finch against the village of Bangor for personal injuries. From a judgment for plaintiff, defendant brings error.

, presiding. Case by Frank Noe against tbe Rapid Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.

Case made from Ingham; Wiest, J. Trover by Herman Baehr and Marcus Loew, copartners as Herman Baehr & Company, against Charles P. Downey and Oscar J. Downey, copartners as H. J. Downey’s Sons. There was a judgment for defendants, and plaintiffs assign error. Plaintiffs brought suit to recover the value of certain goods claimed to have been lost at the hotel of the defendants.

Cas.e by Frederick W. Seccombe against the Detroit Electric Railway for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Separate mandamus proceedings by Dwight H. Fitch and Arthur L. Fitch, copartners as Fitch & Fitch, and by Robert W. Kane, to compel the board of auditors of claims against Manitou county to audit and allow certain claims. From orders granting the writs, the several townships interested bring certiorari.

Assumpsit by William J. Stapleton against the Grand Trunk Railway Company for tbe value of goods destroyed by fire in defendant’s freigbtbouse. From a judgment for plaintiff, defendant brings error.

<p>Error to Cass; Carr, J.</p> <p>Case by Frank La Barre against the Grand Trunk Western Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Cross-appeals from Wayne; Donovan, J. Bill by John C. Wettlaufer and Henry Wettlaufer against Annie C. Ames,.August F. Wettlaufer, Mary Berringer, and Mary Wettlaufer for a partition. From the decree rendered, complainants, and defendants Ames and August F. Wettlaufer, appeal.

Trespass de bonis by Louis F. Sunlin against Henry Skutt. From a judgment for defendant, plaintiff brings error. This case originated in justice’s court, was appealed to the circuit court, and there tried without a jury. It is an action of trespass to personal property. The written findings are as follows: “ 1.

<p>Error to Kent; Perkins, J.</p> <p>Assumpsit by the N. & M. Friedman Company against the Atlas Assurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.</p>

<p>'Corporate Stock — Indorsement—Bankruptcy Sale — Bona Fide Purchaser.</p> <p>A purchaser of corporate stock at bankruptcy sale, who took with notice that such stock had been given by the bankrupt to his daughter, and that the latter’s subsequent indorsement and return of the certificate thereof to her father was to enable it to be pledged for corporate debts, could not hold the stock as against the daughter.</p>

Bill of interpleader by the Grand Lodge of the Ancient Order of United Workmen against Lewis M. Frank and Anna Estella Frank to determine the right to the proceeds of a benefit certificate. Defendant Anna Estella Frank filed an answer in the nature of a cross-bill, to which defendant Lewis M. Frank demurred; and from an order overruling the demurrer he appeals.

Case by Elizabeth A. Burrell against the city of Green-ville for personal injuries. From a judgment for plaintiff, defendant brings error. Plaintiff stepped into a hole upon the sidewalk of defendant city, and was injured. The negligence of the defendant is conceded. The sidewalk was old, rotten, and had several holes in it. Plaintiff had not lived in the city for eight months prior to the accident. She walked over the sidewalk to visit a neighbor.

Bill by Josiah Upton, administrator of the estate of Amos W. Randolph, deceased, against William W. Dennis, Hiram M. High, and William H. Castle, to set aside the compromise of a judgment. From a decree dismissing the bill, complainant appeals.

Assumpsit by the Haney School Furniture Company against school district No. 1 of Crystal Lake township to recover interest on a warrant issued by defendant. From a judgment for plaintiff on verdict directed by the court, defendant brings error. Plaintiff and defendant, through its moderator and director, entered into a written contract for 400 school desks and other articles, dated August 27, 1894. The plaintiff delivered the goods.

<p>Error to Mason; McAlvay, J.</p> <p>Ejectment by Gertrude Townsend against Joseph Kreigh, Eliza Kreigh, Jacob Mahler, and Ellen Mahler. From a judgment for plaintiff on verdict directed by the court, defendants bring error.</p>

Mandamus by the city of Detroit to compel Francis A. Blades, controller of said city, to draw a warrant on the treasurer. The writ was denied, and relator applies for the writ of certiorari.

Assumpsit by Daniel A. Lamson and David Crowley, copartners as Lamson & Crowley, against the city of Marshall, to recover a balance due for the construction of a sewer. From a judgment for plaintiffs, defendant brings error.

Ejectment by James H. McKee and James Langdon McKee against the city of Grand Rapids. From a judgment for plaintiffs for a part of the land only, they bring error.

Bill by George Stratton against Wesley J. Thomas, sheriff of Van Burén county, Charles H. Wall, and Orson F. Stickney, to restrain the sale of certain land on execution. From a decree dismissing the bill, complainant appeals.

Assumpsit by Charles G. Crumrine against Charles H. Austin for professional services. From a judgment for plaintiff for less than the amount claimed, he brings error.

■ Case by Christian Kopf against the Monroe Stone Company for personal injuries. From a judgment for plaintiff, defendant brings error. Plaintiff was employed by the defendant as a driller, and had been so employed about eight weeks. His duty was to drill the holes, not to load and shoot them. Seven -or eight drillers were employed. One loader, or “shooter,” as he was called, was employed to load the holes with dynamite and shoot them.

<p>Certiorari to and appeal from Wayne; Brooke, Hosmer, and" Frazer, JJ.</p> <p>Condemnation proceedings by the Detroit & Toledo Shore Line Railroad Company against Edmund Hall and Mary Hall. Respondents appeal from the award of the jury, and bring certiorari to review the anterior proceedings.</p>

<p>Railroads — Injury to Employé — Safe Appliances — Contributory Negligence — Direction op Verdict.</p> <p>A railroad brakeman was injured while operating a lever used in connection with a semaphore signal. It was a cold night. He had a lantern in his left hand. He stooped over, and with his right hand drew the pin which held the lever down. When the pin was pulled, the lever flew up, and struck him on the head. If he had put his foot or hand on the lever, the accident would not have happened. It was his claim that the upper wire of the device was unnecessarily taut. Held, error to refuse to direct a verdict for defendant, the appliance being reasonably safe, and the brakeman not having used proper care.</p>

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

Mason W. Gray, also Franklin P. Galbraith and William McCarroll, copartners as Galbraith & McCarroll, presented claims against the estate of Zachariah L. Seeley, deceased, for medical services rendered to decedent’s widow. The claims were allowed in the probate court, and George E. Seeley, executor of the estate, appealed to the circuit, where claimants again prevailed, and defendant brings error.

Case by Emma Barr, administratrix of the estate of Daniel Barr, deceased, against the Guelph Patent Cask Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.

, presiding. Assumpsit by the Page Woven Wire Fence Company against Phoebe M. Pool on a promissory note. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by William B. Durgin against Frank G. Smith, Sr., and Frank G. Smith, Jr., upon an alleged promise to pay the debt of a third person. From a judgment for plaintiff, defendants bring error.

Bill by William G. Bigelow against Henman A. Thompson and others to have a deed declared to be a mortgage, and for an accounting. From a decree for complainant, defendants appeal.

Bill by Charles H. Meshew against Cena E. South-worth for the specific performance of a land contract. From a decree dismissing the bill, complainant appeals.

Assumpsit by George P. Hogadone against the Grange Mutual Fire-Insurance Company of Kent and Ottawa counties on a policy of insurance. From a judgment for plaintiff, defendant brings error.

Petition by Elvira Vail Williams to enforce an assignment of an interest in the estate of Crosier Davison, deceased. From an order denying the petition, petitioner appeals.

<p>1. Correspondence — Construction.</p> <p>The construction of written correspondence between the parties to a suit is for the court.</p> <p>2. Benefit Societies — Settlement of Claim — Rescission — Waiver of Return of Consideration.</p> <p>A member of a beneficiary association made a claim for sick benefits, and an agent of the association took up the certificate, and paid the member a certain sum in settlement of all claims by reason of the illness. The member never returned such amount, but subsequently sued for further benefits on the ground that the adjustment was made by' reason of false and fraudulent statements to the eifect that defendant had the right to take up the certificate. It appeared that, after the settlement, the association wrote plaintiff that the certificate was taken up by mistake, and the same was reissued, and premiums accepted. Held, that such conduct on the part of the company did not amount to a waiver of its right to insist on a return of the amount paid as a condition precedent to the rescission of the settlement by plaintiff.</p>

Bill by Charles Wilson against Hugh Woolman, drain commissioner of Sanilac county, and John Baird, treasurer of Marion township, to restrain the collection of a drain tax. From a decree dismissing the bill, complainant appeals. Counsel for the defendants in their brief give a succinct statement of facts, which we adopt. In 1892, the Indian Creek drain was established and constructed in the township of Marion, Sanilac county, following Indian Creek, a natural water-course.

Assumpsit by the township of Ovid against James Haire for taxes on personal property. From a judgment for plaintiff, defendant brings error. Plaintiff sued defendant in justice’s court to recover the amount of taxes assessed against him upon personal property.

<p>1. Exchange of Property — Passing of Title.</p> <p>Title to the property of one of the parties to a contract of exchange may pass before he has acquired title to that for which it is exchanged.</p> <p>3. Same — Question for Jury.</p> <p>Where defendant agreed to exchange a bull owned by him for a buggy owned by plaintiff and a harness which plaintiff was to procure, and it was agreed that the buggy should be repaired and painted by plaintiff, and, with the harness, left at a certain village, where defendant was to obtain them; and, on the day of the agreement, plaintiff changed the bull to a stag, and was to get it as soon as it should recover, a finding that the title to the bull passed to plaintiff on the day of the'agreement was justified.</p> <p>3. Witnesses — Credibility—Cross-Examination.</p> <p>In replevin, it was not error to permit defendant, on cross-examination, to be asked whether he had not pleaded guilty to stealing a grindstone from another, for the purpose of affecting his credibility.</p> <p>4 Exchange of Property — Passing of Title — Instructions.</p> <p>In replevin for a bull which plaintiff was to receive on an exchange of property with defendant, the court, having charged that if it was the iutention of the parties, at the date of the agreement, that title should pass to plaintiff, then plaintiff was entitled to recover, but that, if such was not their intention, the verdict should be for defendant, further instructed that if the bull was turned over to plaintiff, who thbn and there changed him from a bull to a stag, that would be “strong evidence” of a change of title, and, if there was a change of title, plaintiff was entitled to recover. Held, that the latter instruction implied that the turning over to plaintiff was with intent to pass title, and, so construed, was not erroneous.</p>

Bill by Mary Sanderson against Jasper Adams, Ella Adams, Gavin Ritchie, Jr., Edward Stringham, George Stringham, and Lucius Sanderson to set aside certain conveyances. From a decree dismissing the bill as to all defendants except Ritchie, complainant appeals.

Clair; Law, J. Bill by Jennie Hayman and others against Harriet G. Wakeham to set aside certain deeds. From a decree dismissing thé bill, complainants appeal.

<p>1. Burglary — Evidence—Sufficiency.</p> <p>In a prosecution for burglary, evidence reviewed, and held sufficient to sustain a finding that respondent aided and abetted in the commission of the offense .charged.</p> <p>3. Criminal Law — Evidence—Photographs.</p> <p>Where respondent, after being arrested, on being interrogated by the chief of police, denied having been in the vicinity where the offense was committed, and claimed a certain city as his residence, and, when shown a picture in a paper called “The Detective,” at first denied, but afterwards admitted, that the picture was of himself, the picture was admissible to prove the falsity of the statements made by him as to his identity.</p> <p>3. Same — Burglary—Argument of Prosecutor.</p> <p>It was not error to permit the prosecuting attorney, in a prosecution for burglary, to urge before the jury, from the testimony, that respondent was a “bad man,” and “as bright a man of his kind as was ever before a jury,” — particularly where respondent’s counsel had argued that there was no evidence that respondent was a bad man.</p> <p>4. Same — Conduct oe Accused.</p> <p>Nor was it error for the prosecutor, in commenting on respondent’s attitude after his arrest, to state that his position was that he was not bound to answer questions concerning himself, and that the position of an innocent man, when charged with crime, would be entirely different, and that he would lose no time in doing everything possible to convince the officers that he was innocent.</p> <p>5. Same — Extraneous Matters — Harmless Error.</p> <p>In a prosecution for burglary, a picture of respondent, contained in a paper, which respondent at first denied but finally admitted was his, was introduced in evidence. Thereafter the prosecuting attorney, in referring to the picture in his argument, spoke of- the contents of the paper. On objection the court ruled that it was improper to comment on any part of the paper except the photograph. Held, that, in view of the action of the trial judge, the error of the prosecutor in commenting on the paper was harmless.</p>

Case by Frank Brown against the Pontiac, Oxford & ■Northern Railroad Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Ejectment by Henry S. Stoddard and Sadie E. Stoddard against Belle Gallagher and Charles J. Louisignau. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.

Clair; Whipple, J. Assumpsit by the People of the State of Michigan, for the use and benefit of the National Sewer-Pipe Company, against Andrew Sharp and August Schultz, copartners as Sharp & Schultz, as principals, and Henry McMorran and Rudolph C. Wargowsky, as sureties, upon a statutory bond. Prom a judgment for defendant sureties, plaintiff brings error.

<p>Error to Van Burén; Carr, J.</p> <p>„ Case by Rhett Gould against Albert E. Gregory for malicious prosecution. From a judgment for plaintiff, • defendant brings error.</p>

Bill by Laurens W. Wolcott and Cyrus E. Perkins, co-partners as Wolcott & Perkins, against John J. Tweddle, to foreclose certain liens. From a decree for complainants granting insufficient relief, they appeal.

<p>Mandamus by the Preferred Tontine Mercantile Company to compel Fred M. Warner, Secretary of State, to file relator’s articles of association.</p>

<p>Error to Mason; McAlvay, J.</p> <p>Assumpsit by the Pere Marquette Railroad Company against the city of Ludington to recover taxes paid under protest. From a judgment for defendant, plaintiff brings error.</p>

. Bill by George W. Dailey and Mary Dailey against the Saginaw Building & Loan Association and Mary G. Lewis to review a decree of .foreclosure. From a decree dismissing the bill, complainants appeal.

Mandamus by the Michigan Mutual Life-Insurance Company against the common council and the board of assessors of the city of Detroit to compel the reduction of an assessment against relator. From an order granting the writ, respondents bring certiorari.

Appeals fi'om Oakland; Smith, J. Bills by Leopold Freud and others to enjoin the Detroit & from constructing its track on by Homer W. Candler and Bontiac Railway Company complainants’-lands. From decrees dismissing the bills, complainants appeal.

<p>Error to Wayne; Donovan, J.</p> <p>Case by Thomas B. Brady, by next friend, against Sevilla Klein, for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.</p>

<p>1. Sale — Construction of Contract — “Manufactured State.”</p> <p>Under a contract for the sale of dust collectors for ore pulverizers, providing that the apparatus should be shipped in “manufactured state,” a failure to rivet the joints of the pipes before shipping was not a breach, where it appeared that the seller followed its usual practice in that respect.</p> <p>2. Trial — Cross-Examination—Statements of Counsel.</p> <p>On the cross examination of a witness called by defendant as an expert on the manufacture and shipping of sheet iron, the witness testified that he had had experience in a certain manufacturing institution; and, on objection to a question as to what had become of that institution, counsel stated in the presence of the jury that, to test witness’ expert knowledge, he proposed to show that the company was wrecked by his mismanagement, that two other companies were similarly wrecked, and that every other institution with which he had ever been connected had been -ruined. The objection to the question was- sustained. Held, that such statement was not sufficient cause for reversing a judgment for plaintiff.</p> <p>3. Sale — Breach of Warranty — Instructions.</p> <p>In an action for the purchase price of dust collectors for ore pulverizers, warranted both to convey and separate ore, an instruction that, if the machine failed to do both, there was a breach of the warranty, was not objectionable as requiring a failure both to convey and separate in order to constitute a breach.</p> <p>4. Same.</p> <p>In an action for the purchase price of a machine, an instruction basing the right to recover on whether the machine could, under proper management, have been made to do the work contemplated, sufficiently covered defendant’s claim that the machine was “impractical, and mechanically impossible” of successful operation.</p> <p>5. Same.</p> <p>In an action for the price of a machine, in which the buyer . claimed a breach of a warranty that the machine would do certain work, an instruction whereby the case was made to turn on 'whether or not the machine had done the work, regardless of whether it would under proper management, was properly refused.</p> <p>6. Same.</p> <p>In an action for the price of dust collectors for ore pulverizers, in which it appeared that the seller had warranted the collectors to take the ore out of the pulverizers, an instruction that there was a breach of the warranty if plaintiff’s agent had certain knowledge at the time the contract was made, and contemplated the delivery of the ore by the pulverizers to the collectors, was properly refused.</p> <p>7. Trial — Evidence—Harmless Error.</p> <p>The admission of testimony in support of a claim which the court afterwards ruled against in the charge was harmless.</p> <p>8. Same — Instructions.</p> <p>The submission to the jury of an undisputed item of charge is not prejudicial, where the verdict shows that they allowed it.</p> <p>9. Corporations — Directors — Evidence — Admissions — Res Gestas.</p> <p>In an action for the price of a machine sold to a corporation, in which defendant claimed a breach of warranty as to the work the machine was capable of doing, admissions by a director of defendant corporation as to the manner in which the machine was operating, not made in connection with the performance of any duty devolving upon him, were not binding on the corporation, though it appeared that he was present, giving directions, at the installation of the machinery, and was authorized to make some arrangement as to settlement therefor.</p> <p>10. Sale — Breach of Contract — Damages.</p> <p>Defendant in an action for the price of a machine, having set up the claim that plaintiff’s agent, after repeated attempts to make the machine do the work guaranteed, “gave it up as a bad job,” and went away, could not complain that he was not permitted to recoup the cost of subsequent efforts made by himself in the same direction.</p>

Assumpsit by John D. Colburn against the I. Stephenson Company for goods sold and delivered. From a judgment for plaintiff, defendant brings error.

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

Assumpsit by John R. Williams and others against the Michigan Central .Railroad Company for rent. From a judgment for plaintiffs on verdict directed by the court, defendant brings error.

<p>1. Replevin — Partnership—Question for Jury.</p> <p>In replevin for property claimed by plaintiff as surviving partner, the question of the existence of a partnership was properly submitted to the jury, where there was evidence from which they might infer a purpose to make the property common property, though it was quite as consistent with the theory that no such purpose existed.</p> <p>3. Same — Gift—Sufeicienoy of Evidence.</p> <p>In replevin for property claimed by plaintiff as a gift from defendant’s decedent, evidence of decedent’s statements, made-during an illness, that he desired the property, then in the-joint possession of plaintiff-and himself, to be placed in the hands of plaintiff for a particular purpose, unaccompanied by evidence of plaintiff’s acceptance of the property, and viewed, f in the light of the fact that for two years thereafter, and up-to the time of his death, deceased exercised the same controL over the property as theretofore, was insufficient to warrant a finding of a valid gift inter vivos.</p> <p>3. Same.</p> <p>But evidence of his subsequent statements that he had' “given” the property to plaintiff, unless found to have-related to the earlier transaction, was sufficient to justify such finding.</p> <p>4. Same — Witnesses — Matters Within Knowledge of Decedent.</p> <p>In replevin for live stock claimed by plaintiff as surviving partner of defendant’s decedent, plaintiff’s testimony that,. when stock was sold, the proceeds were divided between him and decedent, and that a certain animal was a part of the common stock, was inadmissible as relating to facts equally, within the knowledge of deceased.</p>

Petition by Augusta Ewing for the probate of a lost or destroyed will, alleged to have been executed by Archibald P. McIntyre, deceased. The petition was denied in the probate court, and proponent appealed to the circuit. From a judgment for contestants, Delos McIntyre and others, on verdict directed by the court, proponent brings error.

<p>Error to Kalamazoo; Adams, J.</p> <p>Case by Robert McCullough against Burr Greenfield for false imprisonment. From a judgment for plaintiff, defendant brings error.</p>

Ejectment by the St. Mary’s Power Company against the Chandler-D unbar Water-Power Company and the Edison-Sault Electric Company. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

<p>1. Appeal — Remarks of Court — Exceptions.</p> <p>A party who took no exception to a remark made by the trial court on overruling an objection to testimony interposed by the opposite party could not complain of the remark on appeal.</p> <p>2. Accident Insurance — Suicide—Question for Jury.</p> <p>Evidence in an action on an accident policy examined, and held to raise a question for the jury as to whether insured came to his death through homicide or suicide.</p> <p>3. Same — Presumptions—Instructions,</p> <p>In an action on an accident policy, in which it was apparent that insured either committed suicide or was murdered,” defendant could not complain of an instruction that the presumption of the law was against suicide, where its own requests to charge were based upon that theory.</p>

Case by Hiram Boutell against the Michigan Central Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error. In the city of Ypsilanti, River street runs north and south, and Cross street east and west, the two intersecting where the tracks of the defendant cross them. Its roadbed runs northwesterly and southeasterly. The passenger depot is located westerly of Cross street, but at what distance does not appear.

Mandamus by Charles H. Zimmerman to compel the board of supervisors of Cheboygan county to audit and pay a claim. From an order denying the writ, relator brings certiorari.

Assumpsit by the Mosaic Tile Company against Gabriel Chiera to recover a balance due under a contract for certain work on a building. From a judgment for plaintiff, defendant brings error.

<p>Error to' Wexford; Chittenden, J.</p> <p>Case by James C. Pollard against the city of Cadillac for flooding plaintiff’s premises. From a judgment for defendant on verdict directed by the court, plaintiff .brings error.</p>

Bill by Alexander Hoskins and Alice Hoskins against the Rochester Savings & Loan Association to obtain the cancellation of certain mortgages. From a decree for complainants, defendant appeals.

Bill by the township of Flynn against Hugh Woolman, county drain commissioner, and others, to enjoin the construction of a drain. From a decree dismissing the bill, complainant appeals.

Bill by the Michigan Trust Company against Theresa Hertzig and others for the construction of a will. From a decree for defendants, complainant appeals. Peter Hertzig, the husband of Theresa Hertzig, died testate April 19,1901. His estate consisted of real estate, two farms and a house and lot, valued at $12,500. His personal estate consisted of notes, mortgages, and money in bank, of the value of $9,000.

<p>Error to Gratiot; Stone, J.</p> <p>Caleb Randall was convicted of statutory rape, and sentenced to imprisonment for 15 years in the State prison at Jackson.</p>

<p>Error to Wayne; Donovan, J.</p> <p>Frank Wilson was convicted of burglary, and sentenced to imprisonment for 14 years in the State prison at Jack- - son.</p>

Exceptions before judgment from Houghton; Streeter, J. Victor Toutant was convicted of assault with intent to commit the crime of rape.

Mandamus by James E. Ball to compel Perry F. Powers, auditor general, to refund the purchase price of certain State tax lands. Relator became the purchaser at the annual tax sale on May 1, 1893, of the lands described in his petition. These lands were held by the State upon sales for taxes of 1888 and 1889. Relator received his deeds, but never recorded them.

<p>1. Judgments — Collateral Attack — Name of Defendant— Initials.</p> <p>A judgment cannot be attacked collaterally on the ground that defendant was described by his initials only, instead of his full Christian name; the record containing nothing to show that he was known by any other name than that given.</p> <p>2. Replevin — Execution—Evidence—Harmless Error.</p> <p>In replevin for property seized on execution against plaintiff’s husband, defendant was not prejudiced by the exclusion of the writ under which he claimed, where the court charged the jury that plaintiff could recover only such property as she had shown belonged to her.</p> <p>3. Same — Judgment.</p> <p>Where, in replevin for property seized on execution against plaintiff’s husband, in’operty belonging to the husband, and not covered by the replevin, was included in that turned over to plaintiff, defendant was entitled to a judgment- for the return thereof, or its value.</p>

Garnishment proceedings by George F. Moore and others, copartners as Edson, Moore & Co., and others, against the Mutual Reserve Fund Life Association, as garnishee of Eva Winans. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.

Assumpsit by the Northwestern Cooperage &. Lumber Company against Isaac W. Byers and others on a contract of indemnity against taxation. From a judgment for plaintiff, defendants bring error.

Case by Edward M. Vining against the Detroit, Ypsilanti, Ann Arbor & Jackson Railway for an unlawful ejection from defendant’s car. From a judgment for-plaintiff, defendant brings error.

Certiorari by tbe Flint Land Company, Limited, to review the action of Perry F. Powers, auditor general, in issuing a certificate of error against a tax deed.

Assumpsit by the township of Decatur against Edwin B. Copley for taxes. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Exceptions before judgment from Berrien; Coolidge, J.</p> <p>Orlando Morgan was convicted of violating the liquor law.</p>

Case by John McIntyre against the Pfaudler Vacuum Fermentation Company, impleaded with the Detroit Safe Company, for personal injuries. From a judgment for plaintiff, defendant brings error.

Case by William Greenfield against the Detroit & Mackinac Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error. Defendant did a large business transporting logs on its road north of Alpena. Plaintiff was a lumber scaler, and attended to the purchase and shipment of logs over the road. He had been so employed during the seasons for lumbering for about 4£ years previous to January 21, 1900, when he was injured.

Case by Christine Miller, administratrix of the estate of John Miller, deceased, against the Detroit, Grand Haven & Milwaukee Railway Company, for negligently causing the death of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff’s decedent was a brakeman in the employ- of the defendant. The accident by which he met his death occurred in the defendant’s yard near Perry avenue, in the city of Detroit.

Bill by John Semer against Perry F. Powers, auditor general, Edwin A. Wildey, commissioner of the State land office, and Tekla Engstrom Sundelius, to set aside a deed to the State of certain tax lands, and a homestead entry thereunder. From an order overruling a demurrer to the bill, defendants appeal.

Case by Frank De Cair against the Manistee & Grand Rapids Railroad Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by Alice Bisard and others against George Sparks, Emma L. Sparks, Edith Sparks, and Lewis J. Crawford, guardian of Edith Sparks, an infant, to set aside a deed. Erom a decree for complainants, defendant Edith Sparks appeals.

Assumpsit by Charles A. Johnson and August A. Johnson, copartners as C. A. Johnson & Company, against the Toledo, Saginaw & Muskegon Railway Company, for the breach of a contract of carriage. From a judgment for ■defendant on verdict directed by the court, plaintiffs bring ■error.

Petition by Percival Kuehne, Max Hessberg, Friederich Nachod, and Alphons Jacobson, copartners as Knauth, Nachod & Kuehne, against the Union Trust Company, receiver of the City Savings Bank of Detroit, for the allowance of a claim as preferred creditors. From a decree denying the petition, petitioners appeal.

<p>Probate Courts — Appeal—Bond—Approval—Construction oe Statute.</p> <p>3 Comp. Laws, § 9386, provides that any executor, administrator, or creditor may appeal from the decision and report of the commissioners on claims in the probate court to the circuit court, if application for such appeal is filed in the probate office within 60 days from the return of the report. Section 9387 provides that, on appeal by a claimant, he shall, “within the time aforesaid, and before such appeal shall be allowed, give a bond to the adverse party, * * * to be approved by the judge of probate, and filed in his office.” Section 9395 provides that, when an executor or administrator declines to appeal, any person interested in the estate as creditor, heir, etc., may do so, in the same manner as the executor or administrator might have done, providing that such appellant shall, “before the appeal shall be allowed, give a bond, to be approved by the judge of probate." Held, that, to perfect suoh an appeal by an heir, the appeal bond must be first approved by the judge of probate, and then filed within the time prescribed.</p>

- George Griffith was convicted of burglary, and sentenced to imprisonment for four years in the State house of correction and reformatory at Ionia,

Mandamus by the city of Detroit to compel the Detroit United Railway to make certain repairs on a street. From an order granting the writ, respondent brings certiorari.

<p>1. Life Insurance — Anti-Rebate Law — Premium Note — Validity —Consideration.</p> <p>2 Comp. Laws, § 7219, makes it a misdemeanor for a life-insurance agent to pay or allow any rebate of premium as an inducement to insurance.- In an action by such agent on a premium note, the amount of which he had paid to the company, it appeared that he had induced defendant to take the insurance by giving him the benefit of the agent’s commission of one-half the premium, taking the note in suit for the balance. Held, that the note was void for want of considera tion, by reason of the illegality of the insurance contract.</p> <p>2. Same — Illegal Contract — Pleading.</p> <p>The illegality of a contract of life insurance, because made in violation of the anti-rebate law, need not be pleaded in defense of an action on a premium note, as it is the duty of the court to take notice of the illegality sua sponte.</p>

<p>Appeal from St. Clair; Law, J.</p> <p>Bill by William F. Hodgson against Alexander T. Fisher, impleaded with William Fisher, Jr., to quiet title. From a decree for complainant, defendant appeals.</p>

Assumpsit by Robert M. Brownson, receiver of Herman A. Strassburg, against Helen Roy, and also against Lucy J. Martin, for rent. From judgments for defendants on verdict directed by the court, plaintiff brings error.

Bill by the George Collin Company against Dan McLeod, Jay C. Newbrough, Vernon H. Smith, and Hal H. Smith to enjoin a suit at law and for an accounting. From a decree dismissing the bill, complainant appeals.

Clair; Thomas, J. Assumpsit by Agnes Beard against Wilhelmina Hoffman upon an assigned account for goods sold and delivered. From a judgment for plaintiff, defendant brings error.

Bill of interpleader by the Grand Lodge of the Ancient Order of United Workmen against Anna McGrath, guardian of Lillian Belle McGrath, an infant, Ellen Frank, ■Stephen D. Gutchess, and Anna McGrath, to determine the right to the proceeds of a benefit certificate. From a decree for defendant Frank, defendant Anna McGrath ■appeals.

Assumpsit by the First National Bank of Hancock: against James S. Stringer on a promissory note. From á judgment in its favor for less than the amount claimed, on verdict directed by the court, plaintiff brings error..

Case by John Wallace against the Lake Shore & Michigan Southern Railway Company for injury to a shipment of stock. From a judgment for plaintiff, defendant brings error.

Petition by Elijah Kroll, David Chatlin, and Mayer Davis, copartners as E. Kroll & Co., against the Union Trust Company, receiver of the City Savings Bank of' Detroit, to have a certain note set off against a balance on deposit. From an order denying the petition, petitioners appeal.

Assumpsit, by George Nester, John F. Nester, Frank P. Nester, Maiy N. Bourke, and Margaret Nester, co-partners, doing business under the name of the Estate of Thomas Nester, against the township of Baraga, to recover taxes paid under protest. From a judgment for plaintiff's on verdict directed by the court, defendant brings error.

Cross-appeals from Berrien; Coolidge, J. Bill by Samuel Woolcott against Elmer L. Woolcott and Elizabeth A. Woolcott to set aside certain deeds. Erom the decree rendered, both parties appeal.

Petition by Theophile Blondín against Albert A. Griffin and others to set aside a tax sale. From a decree for petitioner, defendant Griffin appeals. Petitioner’s lands were sold in-1895 and in 1896 for nonpayment of taxes assessed for the years 1893 and 1894, respectively, and were duly bid off to the State.

Case by David Dell against James McBride for slander. Prom a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by Samuel P. Conkling against Andrew Nicholas for goods sold and delivered. Prom a judgment for defendant, plaintiff brings error.

<p>1. Contracts — False Representations — Evidence.</p> <p>Testimony as to false representations made to induce plaintiff to enter into a contract is admissible, in an action to recover money paid thereon, as against an objection that it ténds to vary the terms of the contract, which was in writing.</p> <p>2. Same — Waiver.</p> <p>An agreement for the purchase by plaintiff of an interest in defendants’ business gave him the right to terminate the arrangement, and to, have his money refunded, in certain contingencies. He soon became dissatisfied, and an agreement for a settlement was entered into, which defendants, failed to carry out; whereupon plaintiff at once brought an action for fraud and deceit in inducing the original agreement. Held, that he had not waived his right to bring such action.</p>

Case by Edna Carvey, by next friend, against the Detroit & Mackinac Railway Company, for a wrongful ejection from a train. From a judgment for plaintiff, defendant brings error.

<p>Error to Cheboygan; Shepherd, J.</p> <p>Assumpsit by Marie C. Duby against the Farmers’ Mutual Fire-Insurance Company of Charlevoix, Emmet, and Cheboygan Counties on a policy of insurance. From a judgment for plaintiff, defendant brings error.</p>

Trover by John 'Van Lessler against the Ann Arbor Railroad Company. . From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff was an employé of one Auten, who owned five charcoal kilns at Ashley, alongside the defendant’s railroad tracks.

<p>Mandamus by the Wolverine Land Company to compel Perry F. Powers, auditor general, to refund the consideration paid for a tax title.</p>

<p>1. Injury to Employe — Negligence—Defective Appliances — Evidence — Fellow-Servants.</p> <p>Where, in an action by an employé in a factory for injuries caused by the fall of a rack used for the storage of lumber, due to the act of defendant’s foreman in directing that certain heavy pieces of lumber be placed thereon, it appeared that, while the rack had theretofore been used for light lumber only, no rule on the subject had been promulgated, that it had been built but two months, and that it was only partially filled on the occasion in question, the jury were warranted in finding that the foreman was using the rack for a purpose for which it was intended, and hence that plaintiff’s injury was not due to the negligence of a fellow-servant.</p> <p>2. Same.</p> <p>The fact that the rack fell when only half full, and that the light material that was on it at the time constituted half the weight thereon, afforded evidence of the insufficiency of the rack under any theory.</p> <p>3. Same — Assumption op Risk.</p> <p>It appearing that plaintiff had no occasion to use or to examine the rack, and he having testified that he supposed it was safe, and had no idea that it would fall, it could not be said that he had assumed the risk.</p> <p>4 Same — Contributory Negligence.</p> <p>Nor could it be said, as a matter of law, that he was guilty of contributory negligence.</p>

Assumpsit by Lewis S. Town against Merton K. Jepson and Edward Jepson, copartners as Jepson Bros., for the breach of a contract for the sale of fruit. From a judgment for defendants, plaintiff brings error.

Appeals from Wayne; Donovan, J. Bills by Horace M. Oren, attorney general, on the relation of Maurice R. Marr and Peter Guenther, and by D. G. Heath & Company, against the board of education of the city of Detroit, to enjoin a change of text-books in the public schools. From decrees dismissing the bills, complainants appeal. Complainant D. C. Heath & Co., a corporation organized under the laws of the State of Maine, filed this bill.

Bill by Morley Brothers, a corporation, against Marshall L. Stringer, Zachariah Stringer, Edgar J. Osband, and Grant Parker, in aid of execution. Prom a decree for complainant, defendant Marshall L. Stringer appeals. This is a bill filed in aid of an execution. The facts are found in the decree of the court, and are as follows: “1.

<p>1. Mandamus — Plea in Abatement — Waiver.</p> <p>Mandamus will not lie to compel a circuit-judge to reinstate a plea in abatement, stricken from the files on the ground that the right to maintain it had been waived, since the action of the court is reviewable on writ of error after final judgment, in case defendant shall see fit to stand upon his plea, and otherwise the point is waived.1</p> <p>2. Pleading — Abatement—Effect of Motion to Strike.</p> <p>An order striking a plea in abatement from the files has the same effect as if the judge had directed a jury to render' a verdict for the plaintiff upon the trial of the issue raised by tiie plea.</p>

Assumpsit by the First National Bank of Hancock against Andrew Johnson on a promissory note. From a judgment for plaintiff on verdict directed by the court, defendant brings error.