Volume 135 — Michigan Reports

Assumpsit by James O. Wood, administrator de bonis non of the estate of Joseph Pope, deceased, against George Kaufman and Fred Kaufman, for money had and received. From a judgment against defendant George Kaufman, he brings error.

Case by Annie Kupkofski, by next friend, against the John S. Spiegel Company, for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by Albert Kersey against the Phoenix Insurance Company of Hartford, Connecticut, on a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by John H. Walsh,- trustee, against Charles W. Robinson, Carman G. Paul, and Sheridan J. Colby to foreclose certain mortgages. From a decree for complainant, defendants Robinson and Colby appeal.

Case by John Mushinski, by next friend, against Vincent D. Vincent, for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Cáse by Mary Hennessy against the Muskegon Traction & Lighting Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>1. Timber — Conversion—Evidence—Estimates.</p> <p>In an action for the conversion of timber purchased by defendant from one who took it from plaintiff’s land, the testimony of defendant’s agent as to the amount of timber actually purchased was not conclusive, where plaintiff introduced the testimony of estimators who had examined the stumps, and who gave their opinions as to the amount of timber taken off.</p> <p>2. Same — Damages—Market Value.</p> <p>Testimony as to what timber was worth at mills distant 3 and 124- miles, respectively, from defendant’s mill, and that it was worth as much at one mill as another, was competent to enable the jury to arrive at its value at defendant’s mill.</p> <p>3. Trial — Instructions—Requests.</p> <p>It is not necessary to instruct a jury in the language of a request, where the subject is properly covered by the general charge.</p> <p>4. License — Revocation by Lapse oe Time — Removal of Timber.</p> <p>A gratuitous parol license to remove timber from land, when no time is fixed, will expire if not acted upon within a reasonable time.</p> <p>fi. Same — Reasonable Time — Question for Jury.</p> <p>'■Where no time was fixed for the removal of timber under a gratuitous license, what, under the circumstances of the case, would be a reasonable time, was a question for the jury.</p>

<p>1. Partition — Claim of Title — Demurrer.</p> <p>Where, by a demurrer to a bill for partition, defendant admits that the land is owned in common, complainant is entitled to relief in equity, notwithstanding an allegation that defendant claims title, and refuses possession and participation in the profits.</p> <p>2. Same — Parties—Heirs—Administrator.</p> <p>A bill for the partition of lands among heirs is not defective for failure to make the administrator of the estate a party, where it shows that the ancestor left no debts, or where it does not appear that the estate was administered.</p>

Mandamus by Frank Morrison to compel Fred W, Kent, treasurer of Saginaw county, to pay an order drawn by the superintendents of the poor. From an order granting the writ, respondent brings certiorari.

Assumpsit by Jerome J. Valade against Joseph Masson ■upon a contract of subscription for the purchase of a horse. From a judgment for plaintiff, defendant brings error.

Quo warranto proceedings by the People of the State of Michigan, on the relation of David Anderson, prosecuting attorney, against Charles W. Byers, to try the title to the office of supervisor of Hamilton township. From a judgment for respondent, relator brings error.

Assumpsit by Charles Rohde against Euphemia H. Marquis for money had and received. From a judgment for defendant, plaintiff brings error.

Assumpsit by William E. Thorn, executor of the last will and testament of William T. Garner, deceased, against the Morgan & Whateley Company, for goods sold and delivered. From a judgment for defendant, plaintiff brings error.

Bill by William M’Curdy and Alexander M’Curdy, co-partners as M’Curdy Brothers, against Susan Daniell, to set aside an award of arbitrators. From a decree dismissing the bill, complainants appeal. The parties to this suit, having certain differences, agreed to submit them to arbitration. A contract was drawn providing for three arbitrators, one to be chosen by each párty to the controversy, and the two to choose a third. The award of any two was to be binding.

C.ase by Joseph Skinn and another against Gottlieb Reutter and another for selling certain diseased hogs. From a judgment for defendants on verdict directed by the court, plaintiffs bring error.

Case by Emma O. Chamberlain against the city of Saginaw for personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant brings error.

Replevin by the Log-Owners’ Booming Company against Charles Hubbell and Fred C. Taylor. From a judgment for defendants, plaintiff brings error. This is an action of replevin brought in justice’s court to recover a small amount of lumber cut from logs taken by the defendants from a rollway on the Muskegon river; plaintiff claiming the right of possession, but not ownership.

Bill by M. Henry Lane and Frank B. Lay against the Michigan Traction Company to restrain the construction of a trestle. From the decree rendered, both parties appeal.

<p>Mandamus by Thomas N. Kogers to compel Joseph H. Steere, circuit judge of Chippewa county, to vacate an order dismissing a bill for an injunction.</p>

<p>1. Street Railways — Crossing Tracks —Contributory Negligence-Question for Jury.</p> <p>A driver who, before turning to cross a double-track street railway in the night, looked and saw a car approaching on the track nearest him one block away, and a car approaching from the opposite direction on the other track two blocks away, and, as he drove upon the tracks, looked first for.the car on the nearer track, and then for the other, which he saw was about to strike him, was not negligent, as a matter of law, in failing to look immediately before going upon the second track.</p> <p>2. Same.</p> <p>Where, in the exercise of common prudence, a person may reasonably think there is time to cross a street railway safely, he is not chargeable with negligence in attempting it.</p>

<p>1. Courts — Jurisdiction—Bonds—Principal and Surety.</p> <p>A showing that a judgment on a bond had not been paid by the sureties is not a showing that the court rendering a judgment in favor of the sureties and against the principals for the same claim had no jurisdiction of the subject-matter.</p> <p>2. Principal and Surety — Judgment — Payment and Assignment. .</p> <p>Where the sureties on a bond furnished the money to pay a judgment rendered thereon, and had it assigned to a third person, they were entitled to recover the amount thereof from the principals, although the original judgment had not been discharged or satisfied of record.</p>

Habeas corpus proceedings by Hugh W. Collins to obtain the release of James and Charles Collins from the industrial school for boys at Lansing.

<p>Mandamus by Albert Krekler to compel Willis B. Perkins, circuit judge of Kent county, to quash a writ of capias ad respondendum.</p>

Case by William T. Hamilton against the Michigan Central Railroad Company for personal injuries. From a judgment for plaintiff for an alleged inadequate amount, both parties bring error.

<p>Divorce — Evidence—Appeal.</p> <p>Held, under the evidence, that complainant had made out a case for a divorce on the ground of cruelty; defendant having failed to establish his countercharge of adultery.</p>

Assumpsit by Frank A. Kenyon against the Charlevoix Improvement Company for services rendered. From a judgment for plaintiff, defendant brings error. Plaintiff is the register of deeds of Charlevoix county, and under a contract with the board of supervisors kept up a set of abstract books owned by the county. He received fees for abstracts as his compensation.

, presiding. Assumpsit by the county of Montmorency against Edward J. Putnam, principal, and Lewis Jenson and others, sureties, on a county treasurer’s bond. From a judgment for defendants, plaintiff brings error.

Assumpsit by Almon L. Chase against Hiram N. Ainsworth and William Hanmer, copartners as Ainsworth & Hanmer, for goods sold and delivered. From a judgment for plaintiff, defendants bring error.

Mandamus by the township of Cedar Creek to compel the board of supervisors of Wexford county to allow certain claims for expenses incurred in the treatment of contagious diseases. From an order denying the writ, relator brings certiorari.

Bill by Stephen Culy and others against Hannah M. Upham to set aside a deed. The case was heard, in pursuance of a stipulation, upon pleadings. From a decree for complainants, defendant appeals.

Exceptions before judgment from Kent; Perkins, J. Benjamin S. Harris was convicted of violating Act No. 123, Pub. Acts 1903, relative to the sale of corn syrup. Reversed. Respondent was prosecuted and convicted for a violation of Act No. 123 of the Public Acts of 1903, entitled “An act in relation to the sale of corn syrup,” and reading as follows: “ Section 1.

Contempt proceedings by Lucy M. Brown against Calvin S. Brown for refusal to pay alimony. Defendant, • having been committed, obtained an order of discharge on habeas corpus, to review which petitioner brings certio-' rari.

Case by Eben Hovey against the Grand Trunk Western Bailway Company for damages to crops caused by the •obstruction of a watercourse. From a judgment for plaintiff, defendant brings error.

<p>1. Recoupment — Burden of Proof.</p> <p>Recoupment being an affirmative defense, the burden of proof' to establish it is upon the defendant.</p> <p>2. Pleading — Affirmative Defense — Notice.</p> <p>A defendant cannot insist on an affirmative defense not fairly-set up in his notice under the general issue.</p> <p>3. Contracts — Breach—Recoupment—Fire—Instructions.</p> <p>Under a notice of recoupment that plaintiff had agreed to employ a night watchman in a shingle mill, and leave a boiler . and engine in like good condition as wherq taken, except for natural wear from proper use, and that, because of plaintiff’s negligence in not employing a night watchman, the engine and boiler were damaged by a fire, a charge that, if the fire was due to plaintiff’s failure to employ a night watchman, defendant would be entitled to damages, was as favorable as defendant was entitled to.</p> <p>4 Appeal — Questions Not Raised on Trial.</p> <p>A judgment will not be reversed on a point raised for the first time on motion for a new trial.</p>

<p>1. Chattel Mortgages — Filing—Notice—Purchaser.</p> <p>One who buys chattel-mortgaged property subject to the claim of the mortgagee cannot complain because the mortgage was not filed in the office of the clerk of the township where the mortgagor resided.</p> <p>2. Same — Fraud.</p> <p>A purchaser of mortgaged chattels cannot defeat the mortgage on the g/ound that the mortgagor was induced to execute it by fraudulent representations.</p> <p>3. Sale — Fraud.</p> <p>Fraudulent representations made to a purchaser after the purchase give him no cause of action.</p>

Mandamus by Henry Huxtable and others to compel Edward P. Kirby, probate judge of Ottawa county, to tax relators’ costs as members of the board of review in a drain proceeding. From an order denying the writ, relators bring certiorari.

<p>Error to Calhoun; Winsor, J(.</p> <p>Assumpsit by Sarah Jane Weeks against Leonard D. Hutchinson for a board bill. From a judgment for defendant, plaintiff brings error.</p>

Assumpsit by the St. Johns National Bank against George A. Steel for fraud in obtaining the discount of certain notes. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Mortgages — Illegal Consideration — House of III Fame.</p> <p>A mortgage purporting on its face to be given to secure the repayment of money on certain conditions therein expressed is void where the money was in reality paid to the mortgagor to enable the mortgagee to conduct a house of ill fame.</p>

Bill by Katharine J. Van Driele and Wilhelmina S. Van Driele against John Kotvis-, executor of the last will and testament of Ary Van Driele, deceased, for a construction of said will. From the decree rendered, complainant Wilhelmina S. Van Driele appeals.

Case made from Wayne; Kohnert, J. Assumpsit by Henry Stephens against the Pennsylvania Casualty Company on a contract of indemnity. There was a judgment for plaintiff on verdict 'directed by the court, and defendant assigns error. This is a case made after judgment.

Bill by Robert C. Sheehan against Jesse H. Farwell and Emer J. Farwell, impleaded with James A. Cook, special administrator of the estate of Calvin A. Cook, deceased, to compel the conveyance of certain real estate and for an accounting. From a decree for complainant, defendants appeal.

Case by Robert K. Mann and William G. Watson, co-partners as Mann, Watson & Go., against tbe Pere Marquette Railroad Company, for damages caused by fire-communicated from defendant’s engine. From a judgment for plaintiffs, defendant brings error. Plaintiffs are lumbermen, and own a large mill plant near Muskegon.

Case by Charles Finkbinder against Christian Ernst for the wrongful flooding of plaintiff’s land. From a judgment for plaintiff, defendant brings error. This unfortunate and expensive controversy between neighbors is before us for the second time. The issue and the facts are sufficiently stated in the opinion then rendered. 126 Mich. 565 (85 N. W. 1127). The record in that case did not contain all the evidence.

<p>1. Benefit Societies — Death Claims — Waiver of Defenses.</p> <p>A refusal by the officers of a benefit association to pay a death claim solely on the ground that the deceased had never paid an assessment constitutes a waiver of other defenses known to them at the time.</p> <p>2. Same — Delivery of Certifioate — Presumption of Payment.</p> <p>The delivery of a benefit certificate, reciting that it is issued in consideration of certain payments on delivery thereof, raises a presumption that the payments were made accordingly.</p> <p>3. Same — Question for Jury.</p> <p>An insurance certificate recited that it was issued in consideration of the payment of a membership fee and $1.44 dues on delivery thereof. The soliciting agent remitted the membership fee and delivered the certificate. The treasurer of the society testified that the dues had not been received. Held, that the question of the payment of the dues was for the jury.</p>

Case by Hattie A. Woodworth against the city of Kalamazoo for personal injuries caused by a defective sidewalk. From a judgment for defendant on demurrer to the declaration, plaintiff brings error.

<p>Appeal from Jackson; Peck, J.</p> <p>Bill by Rena Wilcox against Homer Wilcox and others in aid of execution. From a decree dismissing the bill, complainant appeals.</p>

Bill by Charles Eudner against Charles Bath, Howard B. Latourette, and Elizabeth M. Frelinghuysen to enforce a mechanic’s lien. From a decree for complainant, defendant Latourette appeals. This is a proceeding in chancery to foreclose a mechanic’s lien by the complainant, as assignee of one James M. Young. Defendant Latourette is the assignee of a land contract from defendant Frelinghuysen. Bath was the purchaser from Latourette.

Bill by Daniel Pamment, individually and as administrator of the estate of Nathaniel Pamment, deceased, against Emma L. Warner and Orestes B. Warner, to set aside a deed. Prom a decree dismissing the bill, complainant appeals.

<p>Error to Kalkaska; Chittenden, J.</p> <p>Trespass vi et armis by Mary Frederickson against Rasmus Nelson. From a judgment for defendant, plaintiff brings error.</p>

Bill by the C. H. Little Company against the Woodward Avenue Cemetery Association, Daniel L. Davis, Silas A. Hillman, Frank G. Jacobs, and others, to compel the payment of subscriptions to the capital stock of defendant corporation. From an order sustaining in part a demurrer to the bill, both parties appeal.

Case by Samuel Robinson, Jr., administrator of tbe estate of Samuel Robinson, Sr., deceased, against the Chicago & Alton Railroad Company and the Pullman Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff against defendant railroad company alone, it brings error.

Assumpsit by Ad die Lange, administratrix of the estate of Edward Lange, deceased, against William F. Klatt, for money loaned. Prom a judgment for plaintiff, defendant brings error.

<p>Appeal from Shiawassee; Smith, J.</p> <p>Bill by Eusebia A. Downey against William Downey for a divorce. From an order overruling a demurrer to the bill, defendant appeals.</p>

, presiding. Assumpsit by the Citizens’ Commercial & Savings Bank of Flint against Fred A. Platt and Marshall T. Gass, copartners ás F. A. Platt & Co., and Michael E. Houran and I. Wixom Whitehead, copartners as Houran & Whitehead, upon a promissory note. From a judgment for plaintiff on verdict directed by the court, defendant Houran brings error. In 1895 the defendants Houran and Whitehead were co-partners doing business in Flint under the firm name of Houran & Whitehead.

<p>1. Divorce — Appeal—Review.</p> <p>While the conclusions of the circuit judge in a divorce case heard in open court will not be lightly set aside, if a consideration of the entire record satisfies the appellate court that the decree is wrong, it will not be permitted to stand.</p> <p>2. Same — Cruelty.</p> <p>Evidence .reviewed, and held to entitle a wife to a divorce on the ground of extreme cruelty, consisting principally of an abuse of the sexual relations.</p>

Case by the Standard Wine Company against Harry F. Chipman, sheriff of Wayne county, for damages to property while in defendant’s custody under a writ of attachment. From a judgment for defendant, plaintiff brings error.

Trover by the Ball-Barnhart- Putman Company against Arthur J. Lane. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

<p>Error to Wayne; Donovan, J.</p> <p>Replevin by Rozy Kastl against Jerry Arthur and William McBride. From a judgment for defendants, plaintiff brings error.</p>

Case by Maranda Hunter, administratrix of the estate of Bruce Hunter, deceased, against the village of Ithaca, for negligent injuries to her intestate, resulting in his death. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Garnishment proceedings by Edward P. Gregg against the First National Bank of Durand, as garnishee of Albert R. Harrington. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Exceptions before judgment from superior court of Grand Rapids; Newnham, J. Frank Marston was convicted of assault with intent to commit the crime of rape.

. Petition by Perry F. Powers, auditor general, for the sale of lands delinquent for taxes: On objections filed by John Newman. From a decree for contestant, petitioner appeals. This is a petition in chancery filed in 1902 by the auditor general, under the law, to foreclose tax liens upon delinquent lands. The land in question was purchased by contestant, Newman, at the annual tax sale in 1900, for the delinquent taxes of the year 1897.

Assumpsit by John Lee against the Huron Indemnity Union for a balance due on salary. From a judgment for plaintiff, defendant brings error.

Assumpsit by Alvah P. Cady against the Pair Plain Literary Association to recover a balance due on a building contract. Prom a judgment for plaintiff, defendant brings error.

<p>Error to Kent; Wolcott, J.</p> <p>Case by Sarah Graham against the Evening Press Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

<p>Appeal from Washtenaw; Kinne, J.</p> <p>Bill by John Lowry against Durward Lowry, Eva F. Lowry, and John D. Lowry to reform a deed. From a decree for complainant, defendants appeal.</p>

<p>1. Physicians — Reasonable Value of Services — Evidence.</p> <p>In an action against a railroad company by a physician to recover for services rendered at the time of a wreck, testimony by another physician as to the amount received by him for services rendered on the same occasion is inadmissible as bearing on the reasonableness of plaintiff’s charges.</p> <p>3. Same — Credibility of Witnesses.</p> <p>In an action by a physician for professional services, counsel for plaintiff, on the cross-examination of physicians called by defendant, showed them a copy of plaintiff’s bill of particulars, and asked them whether, when the paper was exhibited to them before trial, they did not state that the charges were reasonable; and, after showing that the statements were made, the paper was introduced in evidence. Held, that, the evidence having been limited to the single purpose of contradicting the witnesses, it was competent.</p> <p>3. Same — Expert Testimony.</p> <p>In an action by a physician for professional services, a physician who has heard plaintiff’s testimony with reference to the services may be asked for his opinion as to their reasonable value. ;</p> <p>4. Same — Objections—Sufficiency.</p> <p>In such case an objection to the question, on the ground that the witness did not see the person treated, is insufficient to warrant the contention on appeal that it did not appear that he was acquainted with all the facts and circumstances of the treatment.</p> <p>•5. Same — Trial—Exhibiting Injuries to Jury.</p> <p>In an action by a physician to recover for services rendered to a railroad company at the time of a wreck, a witness who was injured in the wreck, and treated by plaintiff, cannot be compelled to exhibit his leg to the jury.</p> <p>-6. Same — Conduct of Counsel.</p> <p>Counsel for plaintiff, in the argument, referred to the wreck, and to the fact that it was caused by a blunder on the part of defendant. An exception having been taken to the remark, counsel withdrew it, and asked the jury not to consider it; and the court stated that it was an improper remark, and ought to be withdrawn. Held, that the remark was not prejudicial error.</p> <p>7. Same — Instructions.</p> <p>The court having, by its instructions, clearly limited plaintiff’s recovery to such sum as would compensate him for his services, a refusal to instruct that neither plaintiff nor any number of physicians could fix upon an arbitrary amount to be charged therefor was not error.</p> <p>8. Same.</p> <p>An instruction that it did not make any difference how many people plaintiff attended, — that he was only entitled to reasonable compensation for the time expended by virtue of his employment, — was properly refused.</p>

Assumpsit by Lewis T. IOine against the M. Garland Company for royalties on certain patents. From a judgment for plaintiff on verdict directed by the court, defendant brings error. Plaintiff was the sole owner of two letters patent issued by the United States, — one for new and useful improvements in log-rollers, dated May 22, 1883, and the other for new and useful improvements in log-rolling devices, dated February 7, 1888.

<p>1. Impounding Animals — Charges—Appraisal—Hearing.</p> <p>3 Comp. Laws, § 10698, declares that, if the owner of beasts which are impounded shall be dissatisfied with the claim of the impounder, he may have the amount for which he is liable determined by persons appointed for that purpose by a justice. Held, that, in view of constitutional principles, there is a necessary implication that the impounder shall have an opportunity to be heard on the award of the appraisers.</p> <p>2. Same — Replevin—Evidence.</p> <p>One impounding beasts refused to deliver them on tender of the amount found by appraisers to be his due, the award having been made without notice to him. In replevin by the owner, the award was admitted in evidence, but the court charged the jury that it was not binding. Held, that, it being apparent that the jury were influenced by the award, its admission was reversible error.</p> <p>3. Same — Damages—Penalty.</p> <p>3 Comp. Laws, §§ 10688, 10689, provide, in substance, that, when swine are distrained for “going at large” contrary to law, the distrainer shall be entitled to 10 cents per head. Section 10691 provides that when one is injured in his land by swine, etc., he may recover his damages by action, (or by dis-training them as thereinafter provided. Held, that, where swine trespassing on the land of another are distrained by the landowner, he is confined to his damages, and is not entitled to the penalty of 10 cents a head; the swine not being “at large,” etc., within the statute. '</p> <p>4. Same — Notice.</p> <p>3 Comp. Laws, § 10695, provides that, on the impounding of beasts, the impounder shall give the owner notice containing a statement of the cause of impounding. Held, that one impounding swine, and giving notice that the cause was their presence on his land, was bound by the notice, and could not thereafter claim the penalty given by sections 10688 and 10689.</p> <p>5. Appeal — Trivial Matters.</p> <p>While protracted litigation <¡>rer trivial matters may be regrettable, a party may prosecute his case to the court of last resort in the assurance that he will be protected in- his legal rights.</p>

<p>Error to Benzie; Chittenden, J.</p> <p>Ejectment by Helen A. Shreeves against Robert Caldwell and others. From a judgment for defendants on verdict directed by the court, plaintiff brings error.</p>

<p>1. Justices op the Peace — Judgments—Collateral Attack— Residence op Parties.</p> <p>A justice’s judgment, regular on its face, cannot be impeached, in a collateral proceeding by showing that neither of the-parties lived in the township where the justice resided, nor in. an adjoining township.</p> <p>2. Same — Transcript—Statute op Limitations.</p> <p>A justice’s judgment, when docketed on transcript in the circuit court, becomes a judgment of a court of record, to which the 10-year statute of limitations applies.</p> <p>3. Same — Docket Entries — Time op Appearance.</p> <p>A justice’s docket entry reciting: “December 12, 1891, 10 o’clock a. m. Cause called. The plaintiff appears in person, with E., his attorney. Defendant does not appear. After waiting one hour, and defendant not appearing,” etc., —sufficiently shows that plaintiff appeared within the hour.</p> <p>4. Same — False Transcript — Collateral Attack.</p> <p>A justice’s judgment, docketed on transcript in the circuit-court, cannot be attacked collaterally by showing that the-transcript filed is not a true transcript.</p>

Petition by Leland C. Briggs against Myron Boardman and others for a writ of assistance. From a decree for respondents, petitioner appeals. The State of Michigan had become the owner of certain lands by virtue of sale for nonpayment of taxes. On December 21, 1901, Albert A. Griffin, the father-in-law of the petitioner, purchased this land from the State, paying $204.04, and a tax deed was issued and delivered to him.

Garnishment proceedings by the H. Stern, Jr., & Brothers Company against Charles G. Wing, as garnishee of John W. Thomas. Francis Shappee, Sr., intervened. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

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

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

, presiding. Creditor’s bill and bill in aid of execution by Libbie Adams against Minnie Bruske, Herman Bruske, and Martha Ringel. From a decree dismissing the bill, complainant appeals.

Joseph W. Stockwellwas convicted of obtaining a promissory note by false pretenses, and sentenced to imprisonment in the State prison at Jackson for eight years..

<p>Appeal from Calhoun; Winsor, J.</p> <p>Bill by Mary E. Ismon against William M. Loder and the Albion Agricultural Pair & Driving Park Association to foreclose a mortgage. From a decree for complainant, defendant Loder appeals.</p>

<p>1. Railroads — Killing Stock — Defective Cattle-Guards — Instructions to Jury.</p> <p>In an action for the value of cattle killed on a railroad track in consequence of an alleged defective cattle-guard, the charge of the court was examined, and hold not to warrant the contention that the jury were instructed, in effect, that defendant had not done it§ full duty in providing a cattle-guard approved by the railroad commissioner unless the guard provided was in fact sufficient to prevent cattle passing upon the track.</p> <p>2. Same — Negligence.</p> <p>It was not error to instruct that if the cattle crossed the guard, because it was out of repair, or if they passed between it, and the wing fence, the verdict should be for plaintiff; it appearing that the guard had been in the same condition as at the time of the accident for more than two months. 2 Comp. Laws, § 6294.</p> <p>3. Same — Requests to Charge.</p> <p>There being testimony tending to show that some of the cattle passed over the portion of the guard not claimed to be defective, it was error to refuse to instruct that as to any such cattle there could be no recovery.</p> <p>4. Same — Evidence.</p> <p>It was not reversible error to permit witnesses to state the condition of the guard the day after the cattle were killed, without first proving that its condition had remained unchanged; subsequent testimony having supplied the omission.</p> <p>5. Same — Expert Testimony.</p> <p>Defendant’s roadmaster, who had examined the guard after the accident, should have been permitted to testify as to its efficiency to turn stock, as against the objection that this was one of the issues for the jury.</p> <p>6. Same — Conclusions.</p> <p>A question asked of a witness who had given an incomplete description of the guard, as to what, if any, other defect he noticed therein, was not objectionable as calling for a conclusion.</p> <p>7. Same.</p> <p>It was error to refuse to permit a witness to testify. that he had seen the cattle in question pass over another guard of like construction near by, which was in no way defective.</p> <p>8. Same — Trial—Argument oe Counsel.</p> <p>In an action against a railroad company for killing cattle, repeated statements by plaintiffs counsel in his argument to the jury, that any money given plaintiff by their verdict would not come out of the pocket of anybody except defendant corporation, and urging them to place themselves in plaintiffs position, coming into court asking that “this large corporation pay to him what his cattle were reasonably worth,” were ground for a reversal.</p>

<p>1. Adverse Possession — Life Estates — Tenancy in Common.</p> <p>The possession of a grantee of a life tenant and part of the remaindermen cannot be adverse to tjje other remaindermen prior to the termination of the life estate.</p> <p>2. Ejectment — Title—Equity.</p> <p>A claimant under a primary school certificate cannot maintain ejectment against a patentee of the land from the State, but equity is the proper forum for relief.</p> <p>on settlement of decree.</p> <p>1. Estates in Land — Vested Remainders.</p> <p>Where land was conveyed to one for life, with remainder to his “heirs,” an estate at once vested in the children of the grantee, so that, on the death of one of them prior to the father’s death, his interest descended to his heirs.</p> <p>2. Tenancy in Common — Life Tenant — Compensation for Improvements.</p> <p>One in possession of land as tenant for the life of another, though a co-owner of the remainder, is not entitled, as against the other remaindermen, to compensation for improvements made during the continuance of the life estate, even in a court of equity.</p>

Bill by John G. Stradley against the Cargill Elevator Company and others to set aside certain conveyances and for an accounting. From a decree dismissing the bill, complainant appeals.

<p>1. Criminal Law — Instructions to Jury.</p> <p>Even in criminal cases, counsel for the defense should call the court’s attention to points on which an instruction is desired.</p> <p>3. Pure-Food Laws — Vanilla Extract — Coloration—Sufficiency of Information.</p> <p>An information charging the coloration of vanilla extract, whereby its inferiority was concealed and it was made to appear better than it really was, sufficiently alleges the inferiority of the extract.</p> <p>3. Same — Evidence—Question for Jury.</p> <p>Evidence that the presence of coal-tar dye in vanilla extract made the extract appear stronger and of greater value than it really was, warrants the submission to the jury of the question whether the extract was inferior.</p> <p>4. Same.</p> <p>Though coal-tar dye is harmless, its use in vanilla extract, making it appear stronger than it really is, is a violation of Act No. 193, Pub. Acts 1895, § 3, as amended by Act No. 118, Pub. Acts 1897, prohibiting the adulteration of food by coloring, whereby inferiority is concealed, or it is made to appear better than it really is. Peoples. Jennings, 133 Mich. 663, distinguished</p> <p>5. Same — Constitutional Law — Discrimination.</p> <p>The provision in question is not repugnant to the 14th amendment to the Federal Constitution, notwithstanding the proviso that nothing therein shall prevent the coloring of pure butter.</p>

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

<p>Exceptions before judgment from Bay; Shepard, J.</p> <p>George Hossler was convicted of manslaughter.</p>

Case by Fannie B. Maziroff against the Commercial Bank for an alleged wrongful attachment of her property. From a judgment for plaintiff, defendant brings error.

Bill by the Great Hive of the Ladies of the Maccabees for the State of Michigan against the Supreme Hive of the Ladies of the Maccabees of the World, and others, to restrain interference with a proposed extension of complainant’s business. From a decree for complainant, defendants appeal.

Bill by William D. French against the Sparrow-Kroll Lumber Company to quiet title to certain timber. - From a decree dismissing the bill on demurrer, complainant appeals.

Assumpsit by the Underfeed Stoker Company of America against the Detroit Salt Company for the price of certain appliances installed in defendant’s plant. From a judgment for defendant, plaintiff brings error.

<p>De Facto Corporation — Stockholders—Unpaid Subscriptions.</p> <p>Defendants, professing to act for and on behalf of a corporation, made a contract of employment with complainant, who thereafter recovered a judgment against the corporation for breach of contract. Held, on creditor’s bill filed, that complainant was entitled to relief against defendants, holding themselves out as stockholders, for unpaid subscriptions to stock, although no corporation was actually formed.</p>

<p>Error to Oceana; Russell, J.</p> <p>Assumpsit by Loren A. Shirts against the Phoenix Accident & Sick Benefit Association of Benton Harbor on a certificate of insurance. From a judgment for plaintiff, defendant brings error.</p>

Case by Fred H. Williams against Frank Weidman fqr damages sustained through a sale of infected meat. From a judgment for plaintiff, defendant brings error.

Case by Nellie M. Philip, administratrix of the estate of George Philip, deceased, against Michael P. Heraty and John C. Weadock, receivers of the Bay Cities Consolidated Railway Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for plaintiff, defendants bring error.

, presiding. Bill of interpleader by the Great Camp of the Knights of the Maccabees for Michigan against Nellie O. Savage and Moses Savage to determine the right to the proceeds of a benefit certificate. From a decree for defendant Nellie O. Savage, defendant Moses Savage appeals.

Case by Adelbert B. Walker against Ered Mellish and Adam Eerguson for injuries to a team of horses by over-driving. From a judgment for plaintiff, defendant Mellish brings error.

Assumpsit by the Excelsior Foundry Company against the Western Assurance Company on a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by Edmund A. Morris against the Imperial Cap Company, Limited, James McKnight, Adolphus Fixel, and others, tc enjoin the payment of certain claims against defendant company. From a decree dismissing the bill, complainant appeals.

Assumpsit by the State Bank of St. Johns against Houston D. McCabe on a promissory note. From a judgment for defendant on verdict directed by the court, plaintiff brings error. This suit is based upon a promissory note, payable on. demand, for $700, dated December 30,1898, made by J. H. Fedewa to the order of the defendant, and indorsed by him. The declaration contained three special counts besides the common counts.

Mandamus by Alta Farr to compel Thomas Anderson: and others, president and trustees of the village of Tustin, to approve a liquor bond. From an order granting the writ, respondents bring certiorari.

Assumpsit by Emma, R. Derry against the Great Hive, Ladies of the Modern Maccabees, on a benefit certificate. Erom a judgment for plaintiff on verdict directed by the court, defendant brings error. One Martha S. Webber, on March 21,1900, made application in 'writing for membership in one of the subordinate hives of the defendant, and for an endowment certificate for $1,000.

Assumpsit by Charles S. Barker against the Great Hive, Ladies of the Modern Maccabees, on a benefit certificate. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

<p>Exceptions before judgment from Oceana; Russell, J.</p> <p>Isaiah Row was convicted'of statutory rape.</p>

<p>Intoxicating Liquors — Local Option Law — Information — Sufficiency.</p> <p>A warrant and information under the local option statute need not negative the exceptions contained in the proviso to section 15, relative to selling for sacramental purposes, and ren- ' dering it inapplicable to druggists or registered pharmacists selling under and in compliance with law.</p>

<p>1. Intoxicating Liquors — Local Option Law — Druggists — Sworn Statements — Constitutional Law — Voluntary Admissions.</p> <p>Act No. 183, Pub. Acts 1899, ’§ 25, requiring druggists, in counties adopting prohibition, to file sworn statements of liquors sold, is not in conflict with the 14th amendment to the Constitution of the United States; and, in a prosecution for violating the provisions of the act, such statements voluntarily filed are competent as voluntary admissions, irrespective of the question whether respondent could have been compelled to file them, in view of article 6, § 32, of the Michigan Constitution, providing that no person shall be compelled in a criminal case to be a witness against himself.</p> <p>2. Trial — Witnesses—Examination.</p> <p>On redirect examination, it is competent to interrogate a witness as to new matter drawn out on cross-examination.</p> <p>3. Intoxicating Liquors — Local Option Law — Illegal Sales— Instructions.</p> <p>A requested charge, in a prosecution under the local option law, that proof of any number of single illegal sales, or even a series of sales, covering the time alleged in the information, would not establish the keeping of a place where liquors were sold, but that each of such illegal sales would constitute a violation of the law, and a distinct offense, with each of which respondent should be charged, was properly refused.</p> <p>4. Same — Druggists—Representations of Purchaser.</p> <p>A druggist has no right to rely absolutely upon the statement of a purchaser of liquor as to the purpose for which it is desired, where the attendant circumstances are such as would lead a reasonable man to another conclusion.</p>

<p>Error to Oakland; Smith, J.</p> <p>Case by William J. Perry against the Detroit United Railway for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Case by Lizzie Wager against Matthew Lamont for damages caused by fire escaping from defendant’s smokestack. From a judgment for plaintiff, defendant brings error.

<p>Statutes — Approval—Operation—Practice op Osteopathy. Act No. 162, Pub. Acts 1903, providing for the examination and registration of osteopathic practitioners, was approved May-28, 1903, and took effect September 17th thereafter. Held, that the language “at the time of the passage of this act,” contained therein, referred to the date when the act took effect, and not to the date of approval. »</p>

Alexander Rusiewski obtained a judgment against Anthony Michalski for assault and battery, and caused his arrest on a ca. sa. Defendant brings certiorari to review an order denying his application for relief under the poor debtors’ act.

Case by Richard Lenderink against the village of Rockford for personal injuries caused by the caving in of a sewer trench. From a judgment for defendant on verdict directed by the court, plaintiff brings error. The defendant village made a contract with one Williams-to construct a sewer, commencing on Bridge street, extending to the intersection of Main street, and then extending some distance on Main street.

Case by Anson L. Yan Auken, executor of the last will and testament of Abram I. Grant, deceased, against the city of Adrian, for injuries to decedent, caused by a defective sidewalk. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff’s decedent brought suit against the defendant city, claiming that he stepped into a hole of a sidewalk of said city, and was injured. The claim of negligence is that the sidewalk was out of repair.

Mary J. Bates, administratrix of the estate of Edward J. Boyce, deceased, presented a claim against the estate of Jonathan Boyce, deceased, for the conversion of the interest of her intestate in a corporation. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for defendant on verdict directed by the court, claimant brings error.

Otsego; Sharpe, J. John Gray was convicted of having dynamite in his possession with intent to destroy a dwelling house, and sentenced to imprisonment for seven years in the State prison at Marquette.

Case by Sarah. Rouse, administratrix of the estate of Henry Rouse, deceased, against the Detroit Electric Railway, for negligent injuries to, her intestate, resulting in his death. From a judgment for defendant, plaintiff brings error.

Assumpsit by John B. Jackson against Charlotte E. Jackson to recover for chattels converted. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Mandamus by George Horn, drain commissioner of Livingston county, to compel the board of supervisors of said county to order the spreading of a drain tax. From an order granting the writ, respondent brings certiorari. The relator, the drain commissioner, of Livingston county, upon a proper petition, took proceedings to widen, deepen, and clean out an old drain.

Case made from Kent; Wolcott, J. Quo ivarranto proceedings by the people of the State of Michigan, on the relation of the board of supervisors of Kent county, to inquire into the right of Robert B. Loomis, William P. Wolf, and Sylvester Hicks to hold the office of board of county auditors of said county. There was a judgment for respondents, and relator assigns error.

Bill by Adaline Schneider against the city of Detroit, impleaded with Joseph F. Weber and Cyrus Johnston, to quiet title. From a decree for complainant, defendant appeals.

Petition by Elizabeth F. Ninde, administratrix of the estate of William X. Ninde, deceased, for an order directing the Union Trust Company, as receiver of the City Savings Bank of Detroit, to discharge a mortgage. The petition having been granted, defendant appeals.

Appeals from Wayne; Carpenter, J. Creditors’ bill by Daniel J. Campau, Francis F. Palms, and George M. Vail against the Detroit Driving Club, in which Fred T. Moran and Worthy L. Churchill intervened by petition. Also, bill by said Moran and Churchill against all of the other parties above named, together with the People’s Savings Bank, attacking the validity of the proceedings in the first suit, and the claims of the complainants therein.

<p>Error to Ionia; Davis, J.</p> <p>Assumpsit by Charles P. Locke against William D. Wilson and Nicholas Biewer for services rendered. From a judgment for plaintiff, defendant Wilson brings error. Reversed.</p>

Case by Abram Jacob against the Western Union Telegraph Company for delay in transmitting a message. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by Hugo A. Wineman against Frank E. Fisher to enforce defendant’s liability for a labor debt of a corporation in which he was a stockholder. From a judgment for defendant on verdict directed by the court, • plaintiff brings error.

Appeals from Wayne; Donovan, J. Petitions by Homer McGraw and Hoyt Post, as executors and trustees of the last will and testament of Thomas McGraw, deceased, against the Union Trust Company, as receiver of the City Savings Bank of Detroit, for the. allowance of certain claims against the insolvent’s estate. From decrees disallowing the claims, petitioners appeal.

Mandamus by the Houghton County Street-Railway Company to compel the common council of the village of Laurium to permit relator to make a certain connection between its tracks. From an order denying the writ, relator'brings certiorari. The relator was organized in 1900 for the purpose of constructing lines of street railway in the county of Houghton.

Debt by the city of Detroit against Archibald Grant on an indemnity bond under a paving contract. From a judgment for plaintiff on verdict directed by the court, defendant brings error. The defendant had a contract with plaintiff for paving a street in Detroit. The contract was dated August 1, 1894.

<p>Exceptions before judgment from Van-Burén; Carr, J.</p> <p>William Remus and William J. Remus were convicted. of a violation of the local option law.</p>

<p>1. Real-Estate Agents — Commissions—Liability of Seller.</p> <p>In an action by a real-estate agent to recover commissions for services alleged to have been rendered in selling land for defendant, to whom plaintiff had applied in behalf of a prospective purchaser, held, on a review of the evidence, that, though it appeared that plaintiff was in frequent communication with the parties, and active in the negotiations, he was not entitled to recover, as there was nothing in the circumstances from which defendant could have inferred that plaintiff was rendering services for him.</p> <p>2 Same — Custom.</p> <p>The fact that, as the real-estate business is ordinarily conducted, it is the custom for the seller to pay the commission of the agent conducting the negotiations, cannot impose a liability for commissions on the seller, where all the circumstances indicated that the agent was working for the purchaser.</p> <p>3. Same — Ratification—Knowledge of Facts.</p> <p>The owner of land who sells it through the negotiations of a real-estate agent not authorized to act for him is not liable to the agent for commissions on the ground of ratification of the agency, where he did not know that the agent was working in his behalf, and the circumstances indicated the contrary.</p> <p>4. Same — Evidence—-Harmless Error.</p> <p>The question to the plaintiff, as a witness in his own behalf, “As a real-estate agent, for whom were you acting in this sale ? ” was properly excluded as calling for plaintiff’s undisclosed purpose; and, if admitted, it could not have affected the duty of the court to direct a verdict for defendant.</p>

Assumpsit by ^Thomas Marvin, administrator of the estate of Jacob M. Bowlby, deceased, against Elmer Bowlby, on certain promissory notes. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Bill by Lewis Rhoades against Ed. McNamara to enjoin the use of a roadway across complainant’s land. From a decree for complainant, defendant appeals.

<p>Foreclosure bill, filed in the Wayne circuit, by Sidney T. Miller, trustee, against Joseph R. McLaughlin, Collins B. Hubbard, and others:</p>

<p>1. Intoxicating Liquors — Civil-Damage Act — Liability.</p> <p>In an action by a wife against a saloonkeeper to recover damages for selling liquor to her husband, she may, under 2 Comp. Laws, § 5398, upon proof that the sales of defendant contributed to her loss of means of support and to her shame and disgrace, recover of defendant for the entire injury, though sales made by others also contributed to produce it. Steele v. Thompson, 42 Mich. 594, followed.</p> <p>2. Same — Damages—Evidence.</p> <p>Where it is plainly inferable from plaintiff’s testimony that she has suffered loss of means of support and been subjected to shame and disgrace by reason of such sales of liquor, it is not error to refuse to direct a verdict for defendant on the ground that the testimony is too indefinite and uncertain to justify a verdict for plaintiff.</p> <p>8. Same — Exemplary Damages — Instructions.</p> <p>Exemplary damages, while allowable under said statute, can only be given to compensate injury to feelings caused by the wanton or reckless acts of defendant; and it is error to permit the jury to award them under an instruction that they are punitory in character, and designed to punish defendant for some positive wrong done to plaintiff.</p> <p>4. Same.</p> <p>An instruction with reference to actual and exemplary damages, “Of course, you will consider them separately in the jury-room, but when you report your verdict, if you find a verdict for the plaintiff, you will not undertake to divide them, unless requested, but will simply put the two amounts together, if you do find both amounts, and announce one aggregate sum through your foreman:,” — merely indicated the court’s notion of the manner in which the jury would proceed, and was not erroneous as making it mandatory on thém to proceed in that manner.</p>

<p>Error to Clinton; Stone, J.</p> <p>Ejectmerit by John Peter Miller against David H. Shumway. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by J. Emmet Sullivan against the Detroit, Ypsilanti & Ann Arbor Railway for services rendered. Erom a judgment for plaintiff, defendant brings error. Some time in the summer or fall of 1897, three men, Messrs. Russell, Angus, and Liggett, entered into a scheme for the organization of an electric railway to run from Detroit to Ann Arbor. There already existed a street railway in Ypsilanti, another in Ann Arbor, and a third between those two cities.

<p>Appeal from Ingham; Wiest, J.</p> <p>Bill by Lois L. Fuller against William J. Fuller for a. divorce. ' From a decree dismissing the bill, complainant appeals.</p>

Assumpsit by John T. McCurdy against Susan Dillon for services rendered. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Bill by James Eighmey against Herbert H. Thayer and others to remove a cloud from title. From the decree rendered, both parties appeal.

Assumpsit by the Wachusett National Bank against .George A. Steel, Edwin P. Waldron, David S. French, and Robert G. Steel, to enforce the collection of a debt of a corporation of which defendants were directors. From a judgment for defendants on demurrer to the declaration, plaintiff brings error.

Assumpsit by Thomas F. Dodge against Sylvester Gr. Reynolds and Anson R. McRill, copartners as Reynolds ■& McRill, for the breach of a contract to supply goods. From a judgment for defendants, plaintiff brings error.

Assumpsit by the city of Detroit against the People’s Telephone Company of Detroit to recover certain inspection charges. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Assumpsit by Stephen J. Rathbun and Arthur J. Kraft against Dee Allen for goods sold and delivered. From a judgment for plaintiffs, defendant brings error.

<p>Garnishment — Exemptions—Labor Under Contract. '</p> <p>A householder who takes work upon contract, and employs others, is entitled to his exemptions from garnishment to the extent that the amount due represents his manual labor, not exceeding $30. Act No. 172, Pub. Acts 1901.</p>