Volume 134 — Michigan Reports

Petitions by Ann Retan, Ralph E. Wisner, Thomas B. McGregor, and William H. McGregor, register in chancery, against the Union Trust Company, receiver of the City Savings Bank of Detroit, to have certain moneys deposited in said bank declared to be trust funds, to which petitioners are entitled as against the bank’s general creditors. From orders denying the petitions, petitioners appeal.

Assumpsit by the city of Detroit against the Detroit Railway for work done and materials furnished. From a judgment for plaintiff, defendant brings error. In December, 1894, the city of Detroit, by ordinance, granted its consent to the construction of a street railway by appellant through certain streets of the city.

Assumpsit by Mark Sloman, Whiting A. Tillotson, and Milton M. Sloman, copartners as M. Sloman & Company, against the National Express Company, for delay in the transportation of goods. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.

Case by Jennie Sterling, administratrix of the estate of Henry C. Sterling, deceased, against the city of Detroit, for personal injuries to her intestate, caused by a defective street. From a judgment for defendant, plaintiff brings error.

Case by Mattie R. Newman against the city of Ann Arbor for personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant brings error.

<p>1. Findings of Fact — Appeal.</p> <p>Where there is testimony tending to support the findings of fact made by the circuit court, they will not be set aside on writ of error.</p> <p>2. Guardian and Ward — Married Women.</p> <p>In a proceeding for the appointment of a guardian for an incompetent woman, under 3 Comp. Laws, §§ 8711, 8736, it is necessary to determine whether she is married.</p> <p>3. Evidence — Admission oe Record.</p> <p>Where objections to the admission of a record in evidence were overruled, and, after the denial of a motion for judgment on the ground that the record showed that the question was res judieata, counsel asked the court if he held that the record was not evidence of the fact of marriage, his answer, “No, I think it is a matter to be considered,” could not be construed to mean that the admission of the record as evidence was to be considered later.</p> <p>4. Probate Courts — Degrees and Orders — Conolusiveness.</p> <p>Decrees and orders of the probate court, made in the exercise of a jurisdiction conferred by law, are final and conclusive.</p> <p>5. Judgments — Res Judioata.</p> <p>An adjudication is conclusive in respect to the subject-matter of the litigation, and the point of fact or law necessarily decided in determining the issue.</p> <p>6. Same — Marriage—Appointment of Guardian and' Administrator.</p> <p>A determination by the probate court, upon a petition for the appointment of a guardian for an incompetent woman, that she was married, will be considered res judieata upon the hearing of an application by her husband for the appointment of an administrator, where the same parties are before the court.</p>

Case by William F. Zimmerman against Elizabeth Whiteley for the alienation of his wife’s affections. ■ From a judgment for defendant, plaintiff brings error.

Bill by John D. Chaddock against Maria Chaddock and others to restore a destroyed deed. From a decree dismissing the bill, complainant appeals. Complainant and the defendants are the heirs of Leverett Chaddock, deceased, who died November 20, 1900.

Petition by Mary E. Page for the probate of the will of Lurena Beach, deceased. The will was disallowed in both the probate and circuit courts, on a contest made by Lyman P. Beach and others, and proponent brings error.

Assumpsit by Catherine Ebel against Daniel Piehl for money had and received. From a judgment for plaintiff, defendant brings error.

<p>Appeal from Genesee; Wisner, J.</p> <p>Bill by Dewitt C. Reed, Herbert C. Reed, and Moses Hill against Grant Parker, John W. Dunstan, Marshall L. Stringer, Zachariah Stringer, and Edgar J. Osband, in aid of execution. From a decree dismissing the bill, complainants appeal.</p>

<p>1. Personal Injuries — Gross Negligence.</p> <p>Plaintiff was injured while crossing a railroad track in a public street, by a steel rail being handled by defendant’s workmen. Her testimony tended to show that no barriers were placed across the street; that she had passed over the track on her way to a store, and had noticed that some planks and rails were taken up. On her return, shortly afterwards, she noticed nothing to indicate danger until the instant she was injured. Defendant’s testimony tended to prove that the place was guarded by barriers, and that the workmen did not see plaintiff until too late to prevent the injury. Held, that the evidence did not warrant a finding that the workmen were guilty of such negligence that defendant was responsible notwithstanding plaintiff’s contributory negligence.</p> <p>2. Same — Precedent Negligence.</p> <p>Plaintiff could not recover, notwithstanding her own negligence, unless the evidence should show that defendant discovered her in a situation where due care on her part would not, and due care on its part would, have prevented the injury.</p> <p>3. Same — Contributory Negligence — Instructions.</p> <p>In an action against a railroad company for injuries to a pedestrian at a crossing, it was not error to instruct the jury that, if plaintiff saw evidences of repairs at the crossing, she was bound to observe whether the repairs interfered with travel; that it was her duty to avoid danger that would be apparent to an ordinarily prudent person; and that, if she failed to exercise the care of an ordinarily prudent person under like circumstances, she could not recover.</p> <p>4. Same — Barriers at Place oe Danger.</p> <p>A charge that plaintiff could not recover if barriers were placed across the street was not prejudicial to plaintiff, where it was her theory that there were no barriers, and it was apparent from her testimony that she approached the place of danger without using the care she should have used had she been warned by barriers.</p> <p>5. Same — Place of Safety — Acts of Others.</p> <p>The fact that others had passed over the crossing where plaintiff was hurt on the same day did not tend to prove that it was u safe place in which to pass.</p> <p>6. Same — Opinion op Court — Question por Jury.</p> <p>The statement by the court in denying a motion to direct a verdict, that he considered it one of those close cases which should go to the jury, and that different minds might draw different inferences from the testimony, could not be presumed to have improperly influenced the jury.</p>

Assumpsit by Abraham Neilands against Frederick J. Wright to recover a balance due upon a judgment. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Assumpsit by the Anderson Carriage Company against William A. Pungs for money had and received. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Fire Insurance — Waiver of Conditions — Authority of Agent.</p> <p>A fire-insurance agent, having authority to permit other insurance, who receives a policy from the insured with a request for a permit for other insurance, and after eight days returns it, saying he has “fixed it all right,” while in fact he has made no indorsement, waives the condition that the policy shall be void if other insurance Is obtained without written permission indorsed upon the policy.</p>

Bill by Amelia Spring against Fred M. Raymond to set aside an execution sale. From the decree rendered, defendant appeals. Complainant became the owner of the legal title to the lands in dispute March 7, 1900, by deed from her brother, George N. Shaw, who was .then, and had been for many years, the owner. Through the fault of one to whom she intrusted this deed for record, it was not recorded until May 7, 1900.

.Error to Calhoun; Winsor, J. Assumpsit by Mary J. Hoag against the Supreme Lodge of the International Congress on a benefit certificate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by E. Eveline Gardiner against Joseph Gardiner, Sarah EL Adams, Jennie E. Olmstead, and Frederick P. Arthur, administrator of the estate of Nathaniel H. Gardiner, deceased, to set aside certain deeds. From a decree for complainant, defendants appeal. Complainant and the deceased, Nathaniel EL Gardiner, were husband and wife. They were married June 26, 1859, and had no children. She became the owner of certain real estate purchased with money inherited from her parents.

Bill by Carrie Gates and others against the city of Grand Rapids to restrain the collection of certain taxes. From a decree for complainants, defendant appeals.

Assumpsit by Frederick A. Vanatter, by next friend, against William Marquardt, to recover money paid upon a land contract. From a judgment for plaintiff, defendant brings error. This case was tried before the court without a jury, and a finding of facts and law made.

Mandamus by Joseph L. Rose to compel the common council of the city of Ann Arbor to approve a liquor bond. From an order granting the writ, respondent brings certiorari.

Assumpsit by the Detroit Salt Company against the National Salt Company for goods sold and delivered, and for -stipulated damages. Prom a judgment for plaintiff, defendant brings error.

<p>1. Personal Injuries — Negligence.</p> <p>Where one willfully injures another, contributory negligence is not involved, because the injury is not negligent, but intentional.</p> <p>2. Same — Wantonness.</p> <p>Where one sees another in a place of danger, and does not use ordinary care, which would avert an injury, the act is not alone negligent, but wanton, and the same rule may be applied as for willful injuries.</p> <p>3. Negligence — Contributory Negligence.</p> <p>A plaintiff whose negligence is either subsequent to, or concurrent with, that of the defendant, cannot recover.</p> <p>4. Same — Railroads—Injuries on Public Streets — Questions for Jury.</p> <p>Where the horse of one driving along a public street became frightened at railway cars 'Which were being shunted along the track in the street, and backed the carriage upon the track in front of the cars, it was a question of fact as to whether the railroad company was guilty of negligence in failing to stop the cars after the horse began to back up.</p> <p>5. Trial — Instructions—Opinion of Judge.</p> <p>A case will not be reversed, although the trial judge, in discussing the evidence, did not entirely conceal his opinion, where the jury were plainly told that they should decide the question.</p>

Case by Hugh Austin against the Detroit, Ypsilanti & Ann Arbor Bailway for damages to plaintiff’s farm caused by grading the highway. From a judgment for plaintiff, defendant brings error.

Bill by James L. Hodges against Frank Buell and Henry Fler to restrain the removal of certain timber. From a decree for complainant, defendants appeal.

Bill by Charles E. Christian and others against the Michigan Debenture Company and others for the appointment of a receiver and for an accounting. From a decree for complainants, defendants appeal. September 8, 1899, the defendant the Michigan Debenture Company was organized at Columbus, Ohio, as a corporation under the laws of West Virginia, and filed its articles of association with the Secretary of State of West Virginia.

<p>I. Municipal Corporations — Peddlers—Licenses.</p> <p>A city charter empowering the council to license those engaged in the business of hawking and peddling (directly or by canvassing for subscriptions) authorizes an ordinance requiring a license for soliciting orders for the subsequent delivery of goods.</p> <p>'2. Same — Excessive Fees.</p> <p>A license fee of $10 for one week and ■ $50 for one year, for hawking and peddling in the streets of the city of Muskegon, is not so excessive as to make the ordinance void.</p> <p>3. Same — Interstate Commerce.</p> <p>An ordinance requiring a license fee of a peddler does not restrain interstate commerce, where the peddler, a resident of this State, takes subscriptions for the goods of a corporation of another State, but orders them from a general stock, kept in this State, in sufficient quantities to enable him to fill the subscription orders.2</p>

Case by John Neal against Grant M. Morse, State game and fish warden, and Theodore Trudell, deputy warden, for the illegal destruction of certain nets. From a judgment for plaintiff, defendants bring error.

Case by Lillie Gilson against the city of Cadillac for' personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant brings error.

<p>Error to Oakland; Smith, J.</p> <p>Case by Philo Ensley and Ransom Cole against the Detroit United Railway for the negligent killing of certain stock. From a judgment for plaintiffs, defendant brings -error.'</p>

<p>1. Boundaries — Adverse Possession — Admissions.</p> <p>The verbal admissions of a defendant concerning a boundary-are admissible; but a line established by mutual agreement, and acquiescence and continuous occupancy for more than 20 years, cannot be changed by such admissions without a writing.</p> <p>2. Evidence — Record op Survey.</p> <p>A survey recorded in the office of the county surveyor under 1 Comp. Laws, § 2622, is competent evidence.</p> <p>3. Adverse Possession — Timber Land — Character op Occupancy.</p> <p>In an action of trespass, where defendant claimed ownership by adverse possession up to a certain fence, — that he had cultivated a portion of the land, and occupied the remainder as a wood lot, — a charge that his possession must have been pedis positio, open, and subject to the observation of any one around in the vicinity, such that every person could understand it, that it must be based upon something more than silent permission of improvements, and that it must be based upon facts which showed in explicit terms a state of facts that would satisfy the legal definition, was erroneous, as tending to give the jury the impression that more was required of defendant than is necessary under the law.</p>

<p>1. Personal Injuries — Elevators—Negligence and Contributory Negligence — Questions for Jury.</p> <p>Plaintiff, being in defendant’s store on business, went to an open elevator shaft, where defendant raised the gate, and, stepping back, said in a louder tone tlian usual, “Elevator!” for the purpose of warning people in the building that he was about to use it. Plaintiff, thinking it an invitation to enter, stepped into the shaft, and fell. Whether or not the shaft was well lighted was disputed. Reid, that it was right to submit to the jury the questions of negligence and contributory negligence.</p> <p>3. Same — Defendant’s Intent — Invitation to Enter Elevator.</p> <p>The defendant’s intent or purpose in raising the gate and calling out “ Elevator!” would not relieve him from liability, since it was competent for the jury to find that an ordinarily prudent man would have apprehended that it might be regarded as an invitation to enter the elevator.</p> <p>3. Same — Instructions—Cause of Injury.</p> <p>A charge that plaintiff could not recover unless he received his injury in acting upon the invitation of defendant to enter the elevator rendered it unnecessary to charge that he could not recover because of the defective construction of the elevator or shaft, or for defendant’s lack of skill in managing it.</p> <p>4. S ame — Contributory Negligence.</p> <p>Where defendant invited plaintiff to enter an elevator, the latter was not bound to exercise a high degree of care to ascertain whether the elevator car was in the shaft.</p> <p>5. Trial — Arguments of Counsel — Effect of Verdict.</p> <p>A remark by plaintiff’s counsel in his argument to the jury, that they need not worry much about the verdict against the defendant, was not an invitation to the jury to consider a suggestion implied in an excluded question asked of defendant as to whether he was protected by accident insurance.</p> <p>6. Elevators — Care Required in Operation.</p> <p>The owner of a building, in operating an elevator, is not ‘ ‘ bound to exercise the highest degree of care and diligence of a cautious person, so far as human care and foresight can gohe is only bound to use the care required of an ordinarily prudent person under the circumstances.</p>

Assumpsit by Aaron T. Bliss against the Potomac Fire-Insurance Company on a policy of insurance. From, a judgment .for plaintiff on verdict directed by the court, defendant brings error.

<p>Error to Ogemaw; Sharpe, J.</p> <p>Assumpsit by Philip Blumenthal against the Berkshire Life-Insurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.</p>

Case by James A. Curtis, as surviving partner of himself and George H. Outhouse, deceased, composing the firm of J. A. Curtis & Company, against George S. Curtis, for the wrongful conversion of a cause of action. Prom a judgment for defendant, plaintiff brings error.

<p>Error to Mecosta; Palmer, J.</p> <p>Replevin by John Dallavo against John Richardson and Archie Foster, copartners as Richardson & Foster. From a judgment for plaintiff, defendants bring error.</p>

<p>Sale — Goods to be Manufactured — Title—Delivery.</p> <p>On a sale of goods to be manufactured, title will not pass where the seller, instead of setting them aside for the purchaser, as soon as they are made uses them for another purpose.</p>

Assumpsit by John H. Gatiss, Jr., against Isadore Cyr, for goods sold and delivered. From a judgment for defendant on verdict directed by the court, plaintiff brings error. This suit was commenced in justice’s court. Defendant, being informed that plaintiff, a tradesman, had potatoes to sell, went to his store to buy them. Plaintiff was absent. His clerk showed defendant some potatoes.

Assumpsit by Edna McCloskey against school district No. 5 of Wheatland township, upon a teacher’s contract. From a judgment for defendant, plaintiff brings error.

<p>Certiorari to superior court of Grand Rapids; Newnham, J.</p> <p>John J. Tweddle was adjudged, guilty of contempt of court.</p>

Case by Frederick Westpbal against the St. Joseph & Benton Harbor Street-Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff was driving his horse, hitched to a road wagon, over the Wayne’-street viaduct, over a bayou of the St. Joseph river, between the cities of St. Joseph and Benton Harbor. The viaduct is 300 feet long and 19 feet wide, with guard rails on either side.

Mandamus by John R. Bennett to compel John M. ' Carr, a justice of the peace, to entertain a complaint and issue a warrant for an alleged violation of the pure-food law. From an order denying the writ, relator brings certiorari. Relator is an inspector of the State dairy and food department.

Exceptions before judgment from Muskegon; Russell, J. John Portenga was convicted of an assault with intent to commit the crime of rape.

<p>Contracts — Proposal—Acceptance.</p> <p>■An offer to extend the time for paying the principal of a note for a year, on condition that the interest due is paid, is not accepted, so as to make a valid extension, by a letter promising to keep it another year, where the interest is not paid.</p>

Bill by Ellen Maney, George A. Green, and Howard S. Dean against Patrick Casserly, administrator of the estates of Andrew C. Green, deceased, and of Margaret Green, deceased, Patrick Casserly, Peter Casserly, and James Casserly, for an accounting. From the decree rendered, complainants and defendant Patrick Casserly appeal.

Bill by the Negaunee Iron Company, Edward N. Breitung, and Mary Kaufman against the Iron Cliffs Company, the Cleveland-Cliffs Iron Company, William G. Mather, and Murray M. Duncan, to quiet title. From a decree for complainants, defendants appeal. Affirmed. In 1857, one James L. Reynolds was the owner in fee of the lands involved in this suit, and other lands. February 26, 1857, he conveyed to one Charles T. Harvey 4,162 acres by warranty deed.

<p>1. Divorce — Appeal—Evidence.</p> <p>An examination of the testimony in this case does not show that the decree of divorce granted by the circuit judge, who heard the witnesses, should be reversed.</p> <p>2. Same — Alimony</p> <p>A wife whose husband has obtained a divorce from her on the ground of cruelty is not entitled to more than $250 alimony, where it appears that his real property is worth $2,500, and is mortgaged for $1,000, that he has but a small salary and but little personal property, that there are no ohildren the issue of the marriage, and that she has not assisted in the accumulation of his property.</p>

Clair; Thomas, J. Case by Mathew Friesenhan against the Michigan Telephone Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Trover — Evidence—Chattel Mortgages — Foreclosure.</p> <p>Plaintiff brought an action of trover for tools which he had mortgaged to defendant, claiming that the latter received them under an agreement permitting a year for redemption, and that the amount due was within the year tendered and refused. Defendant claimed that the mortgage was foreclosed; that he offered to sell the tools back to plaintiff for less than the amount due upon the mortgage, which was refused; that the alleged tender was insufficient; and that, before it was made, he had sold some of the tools. Held:</p> <p>(1) That a charge withdrawing all questions from the jury except the amount of damages was error.</p> <p>(2) That plaintiff might be asked on cross-examination to identify certain of the tools, and to state their value.</p> <p>(3) That it was competent to show that plaintiff endeavored to buy the tools back from defendant, and that defendant offered them for less than the amount due on the mortgage.</p>

Clair; Whipple, J. Case by Flora Storrie, administratrix of the estate of James Storrie, deceased, against the Grand Trunk Elevator Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.

, presiding. Bill by Lynott Bloodgood, individually and as administrator of the estate of Eliza T. Bloodgood, deceased, Louise Bloodgood, and Ruth D. Bloodgood, against Milton G. Terry, individually and as executor of the last will and testament of Louisa P. Terry, deceased, to establish a trust and for an accounting. From a decree for complainants, defendant appeals.

Bill by William Strack against John B. Miller, drain commissioner of Monroe county, to enjoin the construction of a drain. From a decree for complainant, defendant appeals.

Case by John L. Kotila against the Houghton'County Street-Railway Company for the negligent'killing of a cow. From a judgment for plaintiff, defendant brings error.

<p>1. Gifts — Delivery—Trusts,</p> <p>The mere act of executing deeds and assignments of mortgages, and drawing checks upon a banker, which the maker retains in his possession in separate packages, with instructions indorsed thereon that they be delivered after his death, doe§ not constitute a gift, for want of a delivery, nor a trust, for want of a declaration.</p> <p>2. Trusts — Declarations—Disposal of Property.</p> <p>Statements by a person retaining possession of his property, that he has disposed of it in the way he wants it to go, do not amount to a declaration of a trust, as they are as consistent with the idea that he has made a will as that he is holding the property as a trustee. »</p> <p>3. Same — Retention of Title by Donor.</p> <p>One who, having so arranged his property in anticipation of death that delivery of the papers according to written instructions is all that is required to be done to distribute it, still retains possession of the papers and property, will not be held to have created a trust for the beneficiaries, where there is nothing in his acts or instructions which indicates an intention that effect shall be given to the papers before his death.</p> <p>4. Wills — Execution.</p> <p>A writing directing the distribution of a person’s property after his death, which is not executed in conformity to the statute, cannot be considered a will.</p> <p>5. Same — Deeds—Intent—Parol Evidence.</p> <p>Parol evidence is not admissible to show that a deed, unambiguous on its face, was intended to operate as a will.</p> <p>6. Estates of Decedents — Checks—Claims.</p> <p>A check upon a bank, delivered to the payee, but not presented to the bank until after the death of the maker, if founded upon a sufficient consideration, may be collected as a claim against the maker’s estate.</p>

<p>Error to Wayne; Carpenter, J.</p> <p>Case by Joseph Randa against the Detroit Screw Works for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by Frances Wolkins, administratrix of tbe estate of Peter Wolkins, deceased, against David Knight, for goods sold and delivered. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>1. Appeal — Verdict—Weight oe Evidence.</p> <p>The verdict of a jury will not be set aside on writ of error on the ground that it is against the weight of the evidence, unless it is clearly against the overwhelming weight of the evidence.</p> <p>2. Master and Servant — Wages—Waiver.'</p> <p>Plaintiff, who was employed at a salary of $25 per week, and paid $20 per week, the last check reciting that it was in full to its date, did not waive his right to the balance, if he insisted at different times that he was entitled to more, and there was an agreement to hold the question in abeyance, and the check was accepted under a reservation of his right to assert his claim later.</p>

<p>Error to Wayne; Rohnert-, J.</p> <p>Ejectment by Mary Connor against Martin Connor and Catherine Connor. From a judgment for defendants on verdict directed by the court, plaintiff brings error.</p>

.Error to Lapeer; Smith, J. Assumpsitbj Leon Lord against the National Protective Society of Bay ■ City on a benefit certificate. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

William Look presented his final account as guardian of August Hoga, an infant. The account was disallowed in part in the probate court, and he appealed to the circuit court. From a judgment affirming the order of the probate court on verdict directed by the court, he brings error.

Case by Charles O. Olivier, administrator of the estate ■of Cyrille Boivin, deceased, against the Houghton County Street-Railway Company, for negligent injuries to plaintiff’s intestate, resulting in his death. From a judgment for plaintiff for an alleged insufficient amount, he brings error.

Bill by the Sanitas Nut Food Company, Limited, against John Cerner, to enjoin the disclosure of trade secrets. From a decree for complainant, defendant appeals.

Assumpsit by John Robson and Charles Robson, co-partners as Robson Bros., against Fred H. Price, Dwight J. Robson, and Lewis E. Granger, for money loaned and goods sold. Prom a judgment for plaintiffs against defendants Robson and Granger only, plaintiffs bring-error.

Assumpsit by Lydia A. Ferguson against Miner R. Frink for an alleged balance due from defendant as guardian of plaintiff. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Case by Ratie E. Corey against tbe city of Ann Arbor for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Quo warranto proceedings by Charles A. Blair, attorney general, on the relation of James J. Hurley, against Charles T. Bridgman and others, to determine the title to the office of director of a bank.

Clair; Tappan, J. Assumpsit by Leander S. De Land against Edmund •Hall for the breach of a contract of employment. From a judgment for plaintiff, defendant brings error.

Case by Frank E. Burbanks against David Lepovsky and Alexander Lepovsky for false imprisonment and malicious prosecution. From a judgmént for defendants on verdict directed by the court, plaintiff brings error.

<p>1. Pleading — Appeal from Justice’s Court — Notice of Defense.</p> <p>Tlie failure of a defendant to give the notice required by Cir. Ct. Rule 7, sub. c, with his plea filed in the circuit court to a suit begun in justice’s court, will prevent his showing that the signature to the note upon which suit was-brought was obtained by fraud, although, if the plea had been filed in the justice’s court, the defense would have been admissible.</p> <p>2. Trial — Remarks of Counsel.</p> <p>It is not proper for counsel to interject irrelevant remarks, calculated, if not designed, to prejudice the jury upon the merits of the case.</p>

<p>1. Paupers — Residence—Incompetent Persons.</p> <p>An incompetent person living with her foster parents for many years, from her childhood and until their death, acquires a residence at the place of their domicile, which she does not lose by working for a person in another county under a contract of employment made by her guardian.</p> <p>2. Criminal Law — Taking Case prom Jury — Respondent’s Testimony.</p> <p>A criminal case will not be reversed for refusal to take the case from the jury at the close of the people’s testimony on the ground that the proofs did not show aprima facie case, if the testimony subsequently introduced by respondent supplied the omission in the people’s testimony.</p> <p>3. Same — Removal of Pauper — Superintendents op Poor.</p> <p>It is no defense to a prosecution against the keeper of a county house for the illegal removal of a pauper to another county, that such removal was in obedience to the order of the superintendents of the poor.</p>

Assumpsit by William H. Doyle and William P. Doyle, copartners as Doyle & Son, against David C. Pelton and William Reid, copartners as Pelton & Reid, for expenses incurred in moving defendants’ logs. Prom a judgment for defendants on verdict directed by the court, plaintiffs bring error.

Bill by Albert R. Nowlen against tbe city of Benton Harbor and Adolphus S. Miles, city treasurer, to restrain the collection of a paving tax. From a decree for complainant, defendant city appeals. The city of Benton Harbor took steps to pave portions of two streets, .Wall and Main, which intersected each other at nearly right angles.

<p>Certiorari to Wayne; Donovan, J.</p> <p>Habeas corpus proceedings and certiorari by John Archer to vacate an order of commitment' for contempt of court.</p>

<p>Mandamus by the board of supervisors of Ionia county to compel Frank D. M. Davis, circuit judge of said county, to dissolve an injunction.</p>

Bill by Joseph Trombley and Maggie Trombley against James Cannon to compel the discharge of a mortgage. From a decree for complainants, defendant appeals. Complainants, husband and wife, made an exchange of lands by deed with one Sarah J. Chase. Mrs'. Chase conveyed to complainants, as tenants by the entirety, by warranty deed. Prior to the exchange, Mrs. Chase had given a small mortgage to defendant.

Bill by Annie H. Casgrain and George H. Lee, an infant, by Gilbert W. Lee, his next friend, against Charles F. Hammond, Florence P. Hammond, William J. Hammond, Edward P. Hammond, an infant, by guardian ad litem, and George H. Hammond, to set aside a trust deed. From an order overruling a demurrer to the bill, defendants Charles F., William J., and Edward P. Hammond appeal.

<p>Appeal from Wayne; Rohnert, J.</p> <p>Bill by Charles A. Parkinson against Mary E. Parkinson for a divorce. From a decree from complainant, defendant appeals.</p>

Bill by Harlan P. Waters, Frank J. Pugsley, and 'Harry C. Waters, copartners as H. C. Waters & Company, against Alva M. Johnson, Ellen M. Johnson,. .Elizabeth Stevenson, and the First National Bank of Paw Paw, to enforce a mechanic’s lien. From an order overruling a demurrer to the bill, defendant Stevenson appeals.

Mandamus by Schuyler S. Olds to compel William A. French, commissioner of the State land office, to permit the location of certain alleged swamp land. The Michigan Land & Lumber Company, Limited, intervened.

Mandamus by Edward Banhagel to compel the school-board of district No. 1 of Bronson and Bethel townships to issue a certain warrant for money. From an order denying the writ, relator brings certiorari.

Assumpsit by James A. Jones against Edward W. Pendleton for commissions on the sale of real estate. From a judgment for plaintiff, defendant brings error.

Bill by Mary E. Green and' Hezekiah M. Gillett, executors of the last will and testament of James A. Green, deceased, against Emeline M. Grant, to foreclose a mortgage. From a decree for complainants, defendant appeals.

Assumpsit by the Anderson Carriage Company against William A. Pungs for the breach of a contract to convey certain patents. From a judgment for plaintiff, defendant brings error.

Bill by George Van Ness Lothrop and others, infants, by their next friend, Isabella G. B. Lothrop, against Henry M. Duffield, to set aside an order of the probate court, and for an injunction. From a decree for complainants, defendant appeals.

<p>Appeal from Wayne; Rohnert, J.</p> <p>Bill by James A. Randall, trustee, against the Detroit & Northwestern Railway, the Detroit United Railway, the Preston National Bank, the Union Trust Company, William J. Hayes, Harry E. Hayes, and William L. Hayes, copartners as W. J. Hayes & Sons, Seymour Brownell, and Edward W. Voigt, for an accounting, and to enforce an alleged right of subrogation. From an order sustaining the several demurrers of defendants bank, trust company, and Hayes & Sons, complainant appeals.</p>

Petition by Martha L. Cole against Louise B. Shaw to compel defendant to give a new bond as residuary legatee, or, in default thereof, for the appointment of an administrator de bonis non. The petition was denied in .both the probate and circuit courts, and petitioner brings error.

Assumpsit by Carl Weise against Andrew Anderson, to recover the'-purchase price of certain corporate stock. From a judgment for defendant on verdict directed by the court, plaintiff brings error. In the summer of 1895, plaintiff, defendant, and two-others agreed to organize a corporation to manufacture-matches in the city of Detroit. The agreement rested in parol.

<p>1. Settlement — Evidence.</p> <p>A jury was justified in finding a settlement from evidenoe that the parties met for the purpose of making a settlement, that the accounts were gone over in detail, that the items and amounts were not objected to, that a small balance was found due defendant, and that, for nearly six years, plaintiff made no claim that defendant owed him, although the witnesses did not say that it was agreed the accounts should be settled in full.</p> <p>2. Same — Burden of Proof — Requests to Charge.</p> <p>Where the court had, in his general charge, properly instructed the jury as to the burden of proof, it was not error, when the jury were brought into court to inquire if they were likely to agree, to refuse a request that the burden of proving a settlement was on the defendant.</p> <p>3. Trial — Instructions—Special Questions.</p> <p>It is not error to instruct the jury that a special question must be answered.</p> <p>4. Same — Evidence—Exclusion—Harmless Error.</p> <p>Where a jury found specially that there had been a settlement of plaintiff’s demand, the exclusion of testimony not bearing on the settlement, if error, was harmless.</p>

<p>Appeal from Chippewa; Steere, J.</p> <p>Bill by William H. Male against Charles H. Chapman to quiet title. From a decree for complainant, defendant appeals.</p>

Assumpsit by Loua'M. Gould against W. J. Gould & Company upon a promissory note. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

, presiding. Case by Stephen W. Leslie against the Jackson & Suburban Traction Company for personal injuries. From a judgment for plaintiff, defendant brings error.

Mandamus by Charles A. Paye, treasurer of the village of Fairview, against the township of Grosse Pointe and its officers, to compel the transfer of certain funds to relator. From an order granting the writ, respondent township brings certiorari.

<p>Prisons — Allowance op Good Time — Third Term.</p> <p>1 Comp. Laws, § 2112, providing that any convict who has already served a second term in State prison shall be allowed no good time, does not apply to one who has served a second term in said prison under a conviction for an offense not punishable by law by imprisonment in such prison.</p>

Assumpsit by the township of Grosse Pointe against Matthew Finn for the breach of a contract to purchase certain bonds. From an order overruling a demurrer to the declaration, defendant brings error.

<p>Mandamus by Marion Kennedy to compel Perry F. Powers, auditor general, to cancel a tax deed.</p>

<p>Exceptions before judgment from superior court of • Grand Rapids; Wolcott, J., presiding.</p> <p>Lant K. Salsbury was convicted of bribery.</p>

Case by William G. Bradburn against tbe Wabash Railroad Company and the Pere Marquette Railroad Company for personal injuries. From a judgment for plaintiff, defendants bring error.

<p>Appeal from Wayne; Rohnert, J.</p> <p>Bill by Henry N. Brown against George M. Swarthout, Edward Stein, and George E. Kerwin to enforce the specific performance of a contract. From a decree dismissing the bill on demurrer, complainant appeals.</p>

Mandamus by David Anderson, prosecuting attorney of Yan Burén county, to compel John it. Carr, circuit judge of said county, to vacate an order quashing an information. The “Local Option Law,” so called, is in force in the county of Yan Burén. Section 1 of the act (Pub. Acts 1899, Act No. 183) prohibits the sale of intoxicating liquors as a beverage. Druggists are permitted to sell for certain purposes.

Case by Carrie Brown against the Rapid Railway Company to recover damages for her expulsion from defendant’s car. From a judgment for plaintiff, on verdict directed by the court, for an alleged inadequate amount, she brings error.

Assumpsit by George Peterson against Samuel L. Mark to recover a reward offered for a lost boy. Prom a judgment for plaintiff, defendant brings error.

Petition by Henry Ohrns for his appointment as testamentary guardian of Etta and Rosa Woodward,’ minors. The petition was denied in both the probate and circuit courts, and petitioner brings certiorari. One Mills D. Woodward died testate April 5, 1898. Appellant, Ohrns, was his executor, and Mr. Ohrns and the widow, Louise Woodward, were made testamentary guardians of the estate of his two children.

Assumpsit by the Detroit Light Guard Band against the First Michigan Independent Infantry, Joseph H. Hansjosten, and others, for services rendered. From a judgment for plaintiff, on verdict directed by the court, for less than the amount claimed, and against one defendant only, plaintiff brings error. This case originated in justice court, where the plaintiff recovered a judgment against all of the defendants for the sum of $147.33.

Bill by Albert M. Clark against Arthur S. Clark, Jennie E. Clark, and Gideon L. Hoyt, trustee, for a partition. From a decree denying the claim of defendants Clark for a special allowance from the proceeds of the sale, they appeal.

Bill by Noah W. Cheever against the Flint Land Company, Limited, to enforce an alleged right of redemption from a tax deed. From a decree dismissing the bill on demurrer thereto, complainant appeals.

Assumpsit by William P. Holliday against Charles Wright for the breach of a contract to repurchase certain corporate stock. Held: and plaintiff was elected a director. The directors were authorized to call in the subscriptions as the amounts should be needed. On April 20th the directors made a call for 25 per cent.

<p>1. Ejectment — Plats—Boundaries.</p> <p>Plaintiff’s right to recover in an action of ejectment depended upon his establishing the east boundary of a lot as platted to be at the east side of a certain warehouse. The plat showed the east line of the lot to be located 50 feet west from the-center of a railroad track. The undisputed evidence showed that shortly after the plat was made, and before the warehouse was built, the track was moved 3 or 4 feet to the east. The warehouse was built 50 feet from the center of the track after it was moved. Held, that a verdict should have been directed for defendant.</p> <p>2. Boundaries — Surveys.</p> <p>The fact that a city surveyor assumed that a warehouse marked the boundary of a lot, and made surveys upon that assumption, is no evidence of the true boundary.</p>

, presiding. Mandamus by Claus Hartwig to compel the mayor and common council of the city of Manistee to pay an amount claimed to be due relator for salary as street commissioner. From an order denying the writ, relator brings certiorari.

Bill by Charles H. Kahler against Louis A. Kertson to' compel the assignment of certain corporate stock. Prom a decree for complainant, defendant appeals.

Assumpsit by Frederick Schmid, surviving partner of the firm of Mack & Schmid, against the village of Frankfort, upon municipal bonds. From a judgment for defendant, plaintiff brings error.

Assumpsit by Leo E. Hale against Myron A. Knapp for services rendered. From a judgment for plaintiff for less than the amount claimed, he brings error. Plaintiff was areal-estate agent in the village of Frankfort. The defendant was a manufacturer residing in Chicago. Plaintiff advertised two sawmills for sale. Defendant saw the advertisement, and opened a correspondence in regard to them. One was situated at Frankfort, the other at Mesick.

Sarah Quimby was convicted of murder in the first degree, and sentenced to imprisonment for life in the State prison at Jackson.

Replevin by the American Harrow Company against Barden W. Deyo. James L. Curry intervened as trustee in bankruptcy of defendant. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff is engaged in the manufacture and sale of hardware and agricultural implements in the city of Detroit. Defendant was engaged in the hardware and implement business in the village of Clio, Genesee county.

Motion by Claude M. Harmon against Mary A. Met- - calfe, impleaded with others, to return papers in foreclosure proceedings to the circuit court for enrollment. On June 8,1903, complainant obtained a decree of foreclosure of a mortgage against defendant Metcalfe, and under it caused to be published a notice of sale to take place September 10th. On August 27th complainant filed in the circuit court a praecipe for the enrollment of the decree.

Bill by Noah W. Cheever, individually' and ás special administrator of the estate of Leonhard Gruner, deceased, and others, against Caroline P. Ellis, individually and as executrix of the last will and testament of Joseph J. Ellis, deceased, Hudson P. Ellis, and John A. Ellis, for an accounting. From a decree for complainants, defendants-appeal.

. Appeal from Chippewa; Steere, J. Bill by George Kemp against John G. Stradley, mayor, Harry A. Harrison, recorder, and the city council, of the city of Sault Ste. Marie, and the Trans-St. Mary’s Traction Company, to restrain the construction of a dock. From a decree dismissing the bill on demurrer, complainant appeals.

<p>Certiorari to recorder’s court of Detroit; Phelan, J.</p> <p>The Detroit United Railway was convicted of violating an ordinance requiring the use of certain brakes on its cars.</p>

Ejectment by Charles A. Brown against Samuel R. Bowerman. From a judgment for plaintiff, defendant brings error.

Summary proceedings by Dresser B. Vincent against Obid F. Crane to recover the possession of a farm. From a judgment for defendant, plaintiff brings error.