Volume 136 — Michigan Reports

Petition by Perry E. Powers, auditor general, for the sale of lands delinquent for taxes: On objections filed by Henry T. Calkins and others. Prom a decree for petitioner, contestants appeal. Fifteen persons, the owners of 13 distinct parcels of land, appeared in this suit, instituted by the auditor general in 1903 for the sale of lands delinquent for taxes assessed thereon, and objected to the sale, alleging that the proceedings were void.

<p>Appeal from Wayne; Hosmer, J.</p> <p>Bill by Bryant Walker, trustee, against the city of Detroit and William B. Thompson, treasurer of said city, to set aside a tax sale. From a decree dismissing the bill, complainant appeals.</p>

Mandamus by John Hanna and John J. Niederer to compel William S. Chalker, chairman, and James J. Collen, clerk, of the board of supervisors of Crawford county, to issue a county order. From an order denying the writ, relators bring certiorari.

<p>Mandamus — Verdict—Uncertainty—Judgment.</p> <p>Mandamus will not issue to compel a circuit judge to enter a judgment against the estate of a deceased person for a specific amount upon a sealed verdict “for the full value of the estatethe evidence as to the value of the estate being conflicting, and it being uncertain whether the value before or after the deduction of other debts and expenses of admin- ' istration was meant.</p>

Case by Sarah A. Baldwin, administratrix of the estate of Floyd Baldwin, deceased, against Michael P. Heraty and John C. Weadock, receivers of the Bay Cities Consolidated Street-Railway Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendants, plaintiff brings error.

Case by George Holtham against the city of Detroit for personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant brings error.

Bill by Abigail Milbourn against Alice Bodell and others to set aside a deed. Erom a decree dismissing the bill, complainant appeals.

<p>1. Sales on Execution — Sheriff’s Return — Conclusiveness—</p> <p>Amendment.</p> <p>A party dissatisfied with the sheriff’s return to an execution should ask for an amendment, and, not having done so, cannot dispute the return on a motion to vacate a sale under the writ.</p> <p>2. Same — Homestead—Qualifications of Appraisers.</p> <p>An appraisal of property’claimed as a homestead by an execution debtor under 3 Comp. Laws, § 10369, is not invalid because one of the appraisers was over 60 years of age, notwithstanding the provision that such appraisers shall have the qualifications of jurors.</p> <p>3. Same — Payment of Exemption.</p> <p>Failure of a sheriff to pay into court the defendant’s homestead exemption of $1,500 on an execution sale will not render the sale invalid, as defendant has a remedy against the sheriff by citation or action.</p> <p>4. Same — Mandamus—Practice.</p> <p>Where, on mandamus to compel a circuit judge to set aside an execution sale, the papers indicated that the execution was not delivered to the sheriff until after the levy, but the return of the circuit judge showed that such point was not argued before him and not passed upon, held, that action on the matter should be deferred until it should have been brought to the attention of the circuit judge, so that the proceeding could be amended if the error was one of fact.</p>

<p>Mandamus by Herbert E. Spafford to compel Clyde C. Chittenden, circuit judge of Benzie county, to discharge relator from custody.</p>

Attachment proceedings in justice’s court by Thomas F. Dodge against Elisha R. Nichols. From an order overruling a special appeal^ and directing the cause to stand for trial, defendant brings error.

Assumpsit by Emma Courtemanche against the Supreme Court of the Independent Order of Foresters upon a benefit certificate. From a judgment for plaintiff, defendant brings error.

Assumpsit by the Barry & Finan Lumber Company against the Citizens’ Insurance Company of Missouri on a fire policy. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Mandamus by William A. Blackburn to compel Frank Emerick, circuit judge- of Alpena county, to strike an amended declaration from the files.</p>

Cross-appeals from Mason; McAlvay, J. Bill by the Epworth League Training Assembly against E. Bert Olney, George B. Cartier, and the Citizens’ Development Company, to quiet title-. Erom the decree rendered, both parties appeal.

<p>Error to Wayne; Donovan, J.</p> <p>Assumpsit by Edward C. Brown against John H. Smedley on a promissory note. From a judgment for defendant, plaintiff brings error.</p>

<p>Trial — Consolidation of Causes — Agreement of Counsel-Judgment.</p> <p>On the trial of the preceding case similarly entitled, plaintiff’s counsel remarked, “ The case following this is identical, and the testimony in this case, if there is no objection, we can agree will be the testimony in the next casewhereupon the court observed, “And the judgment in one be the judgment in the other,” and defendant’s counsel stated, “And the bond filed covers both cases.” Held, to justify the entry of a judgment in the second case similar to the one entered in the cause tried.</p>

Ejectment by William H. Upton, an infant, by Helen L. Upton, his next friend, against Joseph Gerber and others. Prom a judgment for defendants, plaintiff brings error.

Separate actions of ejectment by Henry O. Lyon against Mitchell Hyler and wife, and against William M. Peacock and wife. Prom judgments for defendants, plaintiff brings error.

<p>Exceptions before judgment from Cass; Carr, J.</p> <p>August Kriesel was convicted of keeping his saloon open on a legal holiday.</p>

Bill by George Palmer, administrator of the estate of Samuel P. Bray, deceased, against Clarence E. Bray, individually and as executor of the last will and testament of Betsey Doolittle, deceased, and others, to set aside a deed and to redeem from a mortgage. From a decree dismissing the bill, complainant appeals.

Garnishment proceedings by William H. Seitz and Eugene O. Roniger, copartners as Seitz & Roniger, against Levi Starks and William Abel, copartners as Starks & Abel, as garnishees of Joseph, George, and Charles Edgcumbe, copartners as Edgcumbe & Sons. From a judgment for plaintiffs, defendants bring error.

<p>1. Street Railways — Taxation—Construction of Franchise-Real Estate — Fixtures.</p> <p>Relator street-railway company, by the terms of its franchise from the city of Detroit, was to pay to the city a percentage of its gross earnings, and also such taxes for municipal purposes as might be levied “upon the lots and parcels of land, and buildings thereon,” which were the property of the company; the same to be in lieu of all other taxes and charges. At the time such provision was incorporated, relator’s cars were operated by animal power; but subsequently the motive power was changed to electricity, and a large amount of machinery was installed for that purpose. At such time, also, the general tax law declared that, for the purpose of taxation, real property should include all lands within the State, and all buildings and fixtures thereon and appurtenances thereto, unless otherwise expressly provided by law. Held, that relator was not exempted from taxation on so much of its machinery as constituted fixtures.</p> <p>2. Same.</p> <p>Where an electric-railway company installed ponderous boilers, engines, dynamos, etc., in its power house for the purpose of generating electricity, and its superintendent testified that it was intended that such machinery should so remain until it should become worthless, either from wear or because of the discovery of improved appliances, such machinery was properly regarded as fixtures, and taxable as real estate, though apparatus had been erected whereby it might be removed without materially injuring the building.</p> <p>3. Taxation — Municipal Corporations — Authority of Board of State Tax Commissioners.</p> <p>Under the charter of Detroit, after the general assessment rolls have been confirmed by the common council, it is made the duty of the board of assessors to spread thereon the taxes ordered to be raised for city purposes, and to make copies of such rolls, and on such copies assess the State and county taxes. Held, that the authority of the board of State tax commissioners, created by Act No. 154, Pub. Acts 1899, to review and correct assess-merits, extended to the original assessment rolls, and was not limited to the rolls for State and county taxes. Board of State Tax Com’rs v. Board of Assessors of Grand Rapids, 124 Mich. 491, followed.</p>

Case made from Bay; Shepard, J. Assumpsit by Ira Wilson against John Godkin for work and labor. There was a judgment for plaintiff, and. defendant assigns error.

Case by Margaret Hewitt, administratrix of the estate of David C. Hewitt, deceased, against the East Jordan. Lumber Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.

Trover by Mary M. Haynes, administratrix of the. estate of James S. Haynes, deceased, against Miller Hobbs. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Assumpsit by the Grand Rapids Bark & Lumber Com-pany against the township of Inland to recover taxes paid under protest. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by Baxter H. Gilman and wife against John M„ Boden and wife for a partition. From a decree, directing a physical division of the premises, complainants appeal.

<p>Case made from Roscommon; Sharpe, J.</p> <p>Replevin by George Hickey against Homer Rutledge. There was a judgment for plaintiff, and defendant assigns error.</p>

Mandamus by the board of supervisors of Alcona county to compel Perry F. Powers, auditor general, and Edwin A. Wildey, commissioner of the State l,and office, to account for certain moneys.

<p>Appeal from Lenawee; Chester, J.</p> <p>Bill by Burton E. Tobias, administrator de bonis non of the estate of Elizabeth Sinclair, deceased, against the Commercial Savings Bank and others, to foreclose a mortgage. From a decree for complainant, defendants appeal.</p>

Mandamus by Bertram Moore to compel William M. Kelley, police j ustice of Bay City, to issue a warrant for a violation of the liquor law. From an order granting the writ, respondent brings certiorari.

Case by William H. Lucas against the Marquette City & Presque Isle Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error. Plaintiff took a street car over the defendant’s road to go to his place of work at a furnace. The car stopped at the regular stopping place. Plaintiff sat in the center of the car, and was the last to leave over the rear platform.

Bill by Carrie B. Maher against William G. Hastie, trustee, for an accounting. From a decree dismissing the bill, complainant appeals. Held: at which Johnson and Dunne were both present. Dunne did not inform the directors of the suit brought by complainant against the company for Johnson’s claim.

<p>1. Criminal Law — Appeal—Conflicting Evidence.</p> <p>The court, on appeal in a criminal case, will not weigh conflicting evidence'.</p> <p>2. Robbery — Assault With Intent to Rob — Evidence.</p> <p>A respondent charged with robbery may be convicted of an assault with intent to rob, though the evidence of the people, if believed, shows the commission of the complete offense.</p> <p>3. Same — Instructions—Joint Respondents.</p> <p>In a prosecution for robbery, a requested instruction that neither of the respondents could be held responsible for what anybody else did was sufficiently included in a charge that, in order to convict either respondent, there must be evidence of the guilt of that particular respondent, and that it was the duty of the jury to consider the case of each respondent separately.</p> <p>4. Same — Credibility of 'Witnesses.</p> <p>In a prosecution for robbery, an instruction that the credibility of the witnesses was for the jury, that they should consider the interest of each one in the case, his manner of giving testimony, the opportunity he had for observing, etc., was not objectionable on the ground that it cautioned the jury against the testimony of respondents.</p>

Bill by Millie C. Porter and others against George H. Long, executor of the last will and testament of Arthur B. Long, deceased, and surviving partner of the firm of' A. B. Long & Son, impleaded with another, for an accounting. Prom a decree for complainants, defendant, appeals.

Petition by Perry F. Powers, auditor general, for the sale of lands delinquent for taxes: On objections filed by James E. Sherman. From a decree for respondent, petitioner appeals.

<p>Exceptions before judgment from Eaton; Smith, J.</p> <p>Oliver P. Shuler, Sr., was convicted of violating the local option law.</p>

Bill by Fred W. Hughes against William Love for a partnership accounting. There was a decree for complainant, and defendant appealed. On motion by complainant to dismiss the appeal, and by defendant for an order extending the time to make and settle a case.

Case by Bartholomew- McEvoy against the city of Sault Ste. Marie for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

H. Brant Roberts presented for probate the last will and testament of Jacob G. Roberts, deceased. The will was allowed in the probate court, and Charles Bid well, guardian of Carroll Roberts, an incompetent, appealed to the circuit court. From a judgment for contestant, proponent brings error.

Bill by Merton E. Farr against the city of Detroit and Thomas M. Lucking, receiver of taxes, to restrain the collection of a paving tax. From a decree for complainant, defendants appeal.

Bill by the Northwestern Mutual Life-Insurance Company against Lavern Amos for the surrender and cancellation of certain policies of insurance. From a decree dismissing the bill on demurrer, complainant appeals. Complainant has appealed from a decree sustaining the .demurrer to complainant’s bill in equity. The bill alleges complainant’s due incorporation; that on December 30, 1899, one Walter Gf.

Bill by Spencer O. Fisher against the Hampton Transportation Company, Benjamin Boutell, and others for an accounting. From a decree dismissing the bill, complainant appeals.

Case by George Smith against the Pere Marquette Railroad Company for personal injuries. Prom a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Error to Wexford; Chittenden, J.</p> <p>Replevin by Egbert F. Ferris and Guy L. Champney, copartners as Ferris & Champney, against Charles W. Johnson and William McPherson. From a judgment for defendants, plaintiffs bring error.</p>

Case by Michael Wellihan against the National Wheel Company for personal injuries. From a judgment for defendant on yerdict directed by the court, plaintiff brings error.

Bill by Joseph A. Dexter against Celestino A. Gordon and others for the specific performance of a land contract. From a decree for complainant, defendant Gordon appeals.

<p>Error to Jackson; Peck, J.</p> <p>Case by William J. Hastings against William A. Boland for personal injuries. From a judgmentfor plaintiff, defendant brings error.</p>

Ejectment by Charles Dills against Henry La Tour and wife. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

<p>Mandamus by John Monaghan to compel Perry P. Powers, auditor general, to permit relator to redeem from a tax sale.</p>

Clair; Law, J. Case by Leslie Milliken against the city of St. Clair for personal injuries. From a judgment for plaintiff, defendant brings error.

' Appeal from Oakland; Smith, J. Bill by William J. Tabor against Mary O. Tabor, Mayme A. Tabor, and others to restore a destroyed deed. From a decree for complainant, defendant Mary O. Tabor appeals.

<p>1. Adverse Possession — Good Faith — Instructions.</p> <p>Where, in an action of ejectment, defendant claimed title by adverse possession, it was error to instruct the jury that, in order for him to maintain such title, he must satisfy them that the land had been held by him for the statutory period in good faith; since good faith is not an element of adverse possession.</p> <p>2. Boundaries — Old Fences — Instructions.</p> <p>Where, in an action involving a disputed boundary, the evidence was conflicting as to when a particular fence was built, and whether, after it was first built, it was rebuilt on practically the same line, and defendant requested an instruction as to the evidentiary value of old fences, though the request as framed may have been properly refused, the court should have given an instruction covering that phase of the case.</p>

<p>Partnership Associations — Residence—Personal Taxation.</p> <p>After the death of L., leaving an estate consisting largely of real estate in various counties, including some situated in plaintiff city and some in the township of G., his heirs organized a partnership association under 2 Comp. Laws, chap. 160, for the better management of the estate, stock being issued for the respective interests of the heirs, a majority of * whom were nonresidents of plaintiff city. The articles of association provided that its principal office should be in the township of G., and an office was established therein at the Jiouse of the treasurer and principal manager, which bore a ■sign designating it as the office of the association, and at which all the meetings of the shareholders were held, and the general books of the association, including the record book, were kept. An office was also maintained in plaintiff city, where books of original entry were kept, rents collected, moneys disbursed, and the ordinary business of the association conducted. Held, that the association was a resident of the township of G., within 1 Comp. Laws, § 3834, and hence not subject to personal taxation in plaintiff city. .</p>

<p>Capias ad Respondendum — Quashing Writ — Mandamus.</p> <p>Mandamus will not lie to compel a circuit judge to vacate an order quashing a writ of capias ad respondendum, since the order is final, and reviewable on error.</p>

Case by Christopher C. Smith, administrator of the estate of Margaret Smith, deceased, against the Detroit & Mackinac Railway Company, for the alleged negligent-killing of his intestate. From a judgment for plaintiff, defendant brings error. The village of Black River, in 1898, contained between 250 and 300 inhabitants. The main street runs east and west through the village, and is 5Ó feet wide. The houses are scattered.

Ejectment by Ann Francis against Peter J. Francis and others. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Trover by Peter Cunningham against John O’Connor, impleaded with the Truman Moss State Bank. From a judgment for plaintiff, defendant brings error. Plaintiff brought suit in trover in justice’s court against the defendant and the Truman Moss State Bank for the conversion of a quantity of beans, and recovered.- Upon an appeal to the circuit court he obtained a verdict for $49.50, which the court afterwards reduced to $24.75, and entered a judgment therefor.

Clair; Law, J. Case by Frederick I. Merryman against Edmund Hall for personal injuries. There was a judgment for plaintiff, after which defendant died, and the cause was revived in the names of his executrices, Mary H. Hall and Frances Chaney Strong, who bring error.

<p>1. Bastardy — Evidence — Reputation op Prosecutrix por Chastity.</p> <p>In. bastardy proceedings, testimony tending to show that, at about the time the child was begotten, the reputation of the prosecutrix for chastity was bad, is inadmissible.</p> <p>2. Same — Complaint—Variance.</p> <p>Where, in a bastardy proceeding, the testimony fixed the time that the child was begotten at an earlier date than that specified in the complaint, and there was no evidence of the commission of the offense at the time charged, defendant was not required to meet the charge, and a conviction was unwarranted.</p>

<p>Intoxicating Liquors — Sales by Druggists — Quantity.</p> <p>Where respondent, who had duly qualified in a local option county as a druggist, made sales of intoxicating liquors in excess of three gallons, and of twelve quart bottles, for medicinal purposes and in good faith, and was informed against as a wholesaler, and convicted, under 2 Comp. Laws, § 5380, it was held that a druggist, in selling quantities, is not restricted to the limit prescribed for retailers.</p>

Exceptions before judgment from Wexford; Chittenden, J. Erick Lundell was convicted of keeping his saloon open during prohibited hours.

Exceptions before judgment from Lenawee; Chester, J, Francis Dowell was convicted of an assault with intent to commit the crime of statutory rape. The respondent was informed against and convicted of an assault upon one Minnie Pieh, a female child under the age of 16 years, with intent to feloniously, unlawfully, and carnally know her. She lacked but one month of being 16 years of age.

Case by Christian Brown against George W. Stevens and Egbert G. Stevens, copartners as G. W. Stevens & Son, for personal injuries. From a judgment for plaintiff, defendants bring error. Plaintiff fell into an elevator opening in the floor of the defendants’ store, and was injured. He recovered a verdict of $700. The negligence alleged was leaving this opening unguarded, and giving no proper notice to the plaintiff of the danger.

<p>Exceptions before judgment from Allegan; Wolcott, J., presiding.</p> <p>Thomas F. McGarry was convicted of bribery.</p>

<p>Error to Wayne; Rohnert, J.</p> <p>Case by Charles Greller against the Briscoe Manufacturing Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Case by Ernest Beaudin, by next friend, against the city of Bay City, for personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant brings error.

<p>Error to Berrien; Coolidge, J.</p> <p>Case by Burwell Hinchman against the Pere Marquette Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Case by William E. Proper and Walter G-. Proper, administrators of the estate of George W. Proper, deceased, against the Lake Shore & Michigan Southern Railway Company, for the alleged negligent killing of plaintiffs’ intestate. From a judgment for defendant, plaintiffs bring error.

<p>Mandamus by Vine Harding and others to compel Perry P. Powers, auditor general, to refund the consideration paid for certain tax deeds.</p>

Ejectment by Cora M. Carpenter against Frank L. Carpenter and Lucy C. Jones, impleaded with others, From a, judgment for defendants on verdict directed by the court,, plaintiff brings error.

<p>Equity Practice — Amendment op Bill — Pro Conpesso. Under Chancery Rule 16, authorizing an amendment to a bill of complaint “ at anytime before a plea, answer, or demurrer is put in, without leave of court,” a bill may be amended after an order pro confesso has been entered.</p>

Case by Kent McNaughton against George N. Smith, impleaded with Albert B. Cummins, for the fraudulent conversion of certain corporate stock. From a judgment •for plaintiff, defendant brings error.

<p>1. Deeds — Delivery—Evidence.</p> <p>A husband and his wife executed deeds of their farm to their two sons, and, on their return home, the wife, in the-presence of the husband, handed the deeds to the sons, saying, “Boys, here are your deeds.” By her directions the sons then placed the deeds in a box in which the father kept his private papers, which box was then and thereafter kept in his bedroom. The parents subsequently mortgaged the land, and lived upon and controlled the premises as if their own. Held, that such facts did not establish a delivery of the deeds.</p> <p>2. Same.</p> <p>A statement signed by the parents, that “the deeds that we have made over to” the sons “are not to be recorded until after we are both dead, and then the boys are to give ” their sister “ a note for §500 for her share; after this is done, the deeds are to ” belong to the sons, — and intended to be attached to the deeds, did not indicate an understanding that the deeds had been delivered.</p>

Bill by Harold F. P. Berdan, by nest friend, against the Milwaukee Mutual Life-Insurance Company and Frank Berdan, .to set aside a settlement of a claim under a policy of insurance. From a decree for complainant defendant company appeals.

Clair; Law, J. Henry F. Marx presented his final account as administrator of the estate of Albert Meswald, deceased. The account was allowed in the probate court, and Henry MeMorran, administrator of the estate of Sarah C. Meswald, deceased, appealed to the circuit court. From a judgment for appellant, said Marx brings error.

Bill by Minnie Smitton, administratrix of the estate of' William L. Smitton, deceased, against Michael L. Seibert and Billa Seibert, to set aside a foreclosure sale. From a. decree dismissing the bill, complainant appeals.

Bill by Mark M. Pike and Hamilton J. Butler against Fred L. Richardson and Abbie Richardson to redeem from a tax deed. From a decree for complainants, defendants appeal.

<p>Error to Bay; Shepard, J.</p> <p>Assumpsit by Andrew W. Payne against the Union Life Guards on a policy of insurance. From a judgment for plaintiff, defendant brings error.</p>

Case made from Wexford; Chittenden, J. Attachment proceedings under the log-lien law by Joseph Lagoo against Drayton Seaman. There was a judgment for plaintiff,, and defendant assigns error.

Mandamus by Frank S. Pierce to compel the board of supervisors of Gladwin county to allow certain claims for medical services rendered in cases of contagious diseases. From an order granting the writ in part only, relator brings certiorari.

Mandamus by Arthur S. Sturge to compel the board of supervisors of Gladwin county to allow certain claims for medical services rendered in cases of contagious diseases. From an order granting the writ in part only, relator brings certiorari.

Gross-appeals from Wayne; Brooke, J. Bill by Thomas S. Sprague against Irene Sprague Moore, as trustee, as guardian, and individually, Rollin C. Sprague, George H. Sprague, Mary A. Stofflet, Ida L. Taylor, and Gracie Deats, for an accounting, and the distribution of a trust estate. From certain allowances made on settlement of decree, all parties appeal.

<p>1. Street Railways — Duty to Passengers.</p> <p>A street-railway company owes to its passengers a high degree of diligence and care in respect to the character of its rolling stock.</p> <p>3. Same — Negligence—Defective Appliances — Question for Jury.</p> <p>In an action against a street railway for injuries to a passenger, where there was testimony that the brake-rod had broken the day previous to the accident, but was repaired so that the brakeman had no reason to doubt the efficiency of the brake until he tried to use it, and it was found after the accident that the brake-rod was useless for want of a bolt, the question of negligence, when taken in connection with the fact of the accident, was for the jury.</p> <p>3. Same — Incompetent Motorman.</p> <p>There being testimony that the motorman did not know that he could stop the car by reversing the motor, that his tutelage had been brief, and that he did not turn off the current, but lost his judgment in the emergency, the question of his competency and the character of his conduct was also for the jury.</p> <p>4. Same — Unexpected Dangers.</p> <p>A passenger on a street car is entitled to reasonable protection against dangers, though imminent and unexpected; and it is not necessarily a defense that, in the face of such a danger, the motorman lost his usual ability to-control the car.</p> <p>5. Same — Jumping from Car — Impending Collision — Contributory Negligence.</p> <p>A passenger on a street car who jumps therefrom under the excitement due to an imminent collision is not guilty of contributory negligence.</p> <p>6. Same — Evidence—Instructions.</p> <p>Where, in an action against a street railway for injuries to a passenger, plaintiff testified that she knew she did not jump from the car, but was thrown off while standing near the door, holding onto some irons, as the car rounded a curve at a high rate of speed just prior to its collision with another car, and one of the several passengers who were on the car testified that she was thrown against another person, and no one testified to seeing plaintiff jump off, there was nothing requiring an instruction to the jury on the theory that plaintiff jumped from the car.</p> <p>7. Personal Injuries — Permanency—Damages—Evidence.</p> <p>Evidence examined, and held to warrant the submission to the jury of the question of the permanency of plaintiff’s injuries.</p> <p>8. Same — Instructions.</p> <p>An instruction that, if plaintiff will never recover from her injuries, they are permanent, and she should be awarded such damages for future pain and suffering as the jury may be convinced she will experience, implies the necessity for a finding of “reasonable certainty of permanence.”</p> <p>9. Same — Life Expectancy.</p> <p>Damages for prospective suffering' from permanent injuries must be based on the life expectancy of the injured person at the time of the trial, and not upon that expectancy prior to the injury.</p> <p>10. Same — Instructions.</p> <p>Charge examined, and held open to the construction of authorizing a recovery on the latter theory.</p> <p>11. Appeal — Instructions—Exceptions.</p> <p>Under the statute, error may be assigned upon a charge though no exception was taken at the trial.</p>

Mandamus by Edwin J. Phelps, as treasurer of the Michigan Asylum for the Insane, to compel Perry E. Powers, auditor general, to draw his warrant for the payment of certain bills.

Ejectment by the Pere Marquette Railroad Company against Edmond A. Graham and others. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

■Certiorari to Wayne; Brooke, J. Mandamus by the National Loan &. Investment Company against the city of Detroit and the common council -of said city, to compel the reduction of an assessment. From an order granting the writ, respondents bring certiorari.

Petitions by- the board of education of the city of Detroit and the Detroit Library Commission against the Union Trust Company, as receiver of the City Savings-Bank, to have certain deposits declared to be held in trust. From a decree dismissing the petitions, petitioners appeal..

<p>Error to Van Burén; C.arr, J.</p> <p>Case by Wilson Lee against James M. Longwell for an assault. From a judgment for plaintiff, defendant brings, error.</p>

<p>Error to Wayne; Donovan, J.</p> <p>Assumpsit by the Union Trust Company, receiver of the City Savings Bank of Detroit, against the Preston National Bank of Detroit, to recover the amount of a deposit. From a judgment for plaintiff on verdict directed by the court, defendant brings error.</p>

Mandamus by Henry Skutt to compel Alfred Wolcott, circuit judge of Kent county, to vacate an order setting aside an order allowing an amendment to a plea.

Mandamus by Henry A. Dickson, sheriff of Wayne county, against James Phelan, judge of the recorder’s court of the city of Detroit, and John A. Grogan, clerk of said court, to compel the delivery to relator of a venire facias for the summoning of certain jurors.

Case by Joseph Coessens, administrator, etc., against the Rapid Railway, for the alleged negligent killing of his intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

J. Bill by Andrew W. Comstock and William B. Com-stock, surviving partners of the firm of Comstock Brothers, against George R. McDonald, administrator of the estate of Joseph B. Comstock, deceased, and others, for an accounting. From the decree rendered, complainants appeal.

Clair; Law, J. Case by William N. Belyea against the city of Port Huron for personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant brings error.

<p>1. Mandamus — Return—Conclusiveness.</p> <p>Where no issue is joined in mandamus proceedings, the answer of respondent is conclusive as to the facts.</p> <p>2. Corporations — Usurious Contracts — Bo^ds.</p> <p>The issue of 6 per cent, bonds by a corporation, to be sold at 75 cents on the dollar, is usurious.</p> <p>S. Same — Ultra Vires — Defenses—Waiver.</p> <p>A usurious contract entered into by a corporation is not ultra vires, in the ordinary sense of the term, as 2 Comp. Laws, § 4857, expressly declares such contracts not to be void, and they are good in the hands of bona fide holders, and good as to all the world except the debtor, who may waive his right to treat them otherwise by neglecting to plead usury.</p> <p>4. Same — Injunction—Rights of Stockholders.</p> <p>A stockholder in a corporation may enjoin it from making a usurious contract, where it is not inequitable for him to do so as between himself and other stockholders, and where he will suffer injury from the transaction; but it cannot be said that he is entitled to such relief under any and all circumstances.</p> <p>5. Mandamus — Practice.</p> <p>Mandamus is a discretionary writ, and should not issue when it will work an injustice.</p> <p>8. Same — Injunction—Discretion of Circuit Judge.</p> <p>The discretion of a circuit judge in refusing to continue an injunction will not be interfered with by mandamus unless relator has a clear legal right to the relief sought, or such discretion is otherwise clearly abused.</p> <p>7. Same — Corporations—Usurious Contracts.</p> <p>Mandamus will not issue at the instance of a stockholder of a corporation to compel the circuit judge to continue a preliminary injunction restraining the corporation from making a usurious contract, without regard to the equitable considerations which induced the denial of such relief. So held where a corporation, under the stress of necessity, and supported by a vote of a majority of the stockholders, was about to issue its bonds, and sell them so far below par as to make the interest payable exceed 7 per cent. Grant and Carpenter, JJ„, dis-seating, on the ground that the minority stockholders had no other remedy, and being of opinion that it was an abuse of discretion not to retain the injunction until the hearing.</p>

Petitions by William S. Savage and Amos E. Lohr for the appointment of a guardian for Adelia Alexander, an alleged incompetent. The petitions were granted in the probate court, and respondent appealed to the circuit; and, being again defeated, she brings error. Two petitions were filed on the same day in this cause in the probate court for the appointment of a guardian for Adelia Alexander. One was filed under section 8709, 3 Comp.

<p>Appeal from Wayne; Donovan, J.</p> <p>Petition by William T. McGrayv against the' Union Trust Company, as receiver of the-City Savings Bank of Detroit, to offset a claim as a depositor against a note held by said bank. From an order denying the petition, petitioner appeals.</p>

Assumpsit by the Benton Fuel Company against the O. W. Shipman Company for the breach of a contract to furnish certain coal. From a judgment for plaintiff, defendant brings error.

Assumpsit by Eva C. Rudell against the Grand Rapids Cold-Storage Company for damage to butter in storage. From a judgment for plaintiff, defendant brings error. Plaintiff, a maker of and dealer in butter, deposited a large quantity in the cold-storage plant of the defendant for preservation for future sales. Her butter was of a very high grade, and made and kept for sale during the summer at the pleasure resorts of Northern Michigan.

Mandamus by Arthur B. Smith, treasurer of school district No. 1 of the township of Monguagon, to compel George D. Jones, supervisor of said township, to spread a certain tax. From an order denying the writ (Brooke, J., dissenting), relator brings certiorari. In 1903 the treasurer of the township of Monguagon defaulted in his accounts. Among the moneys embezzled by him or his deputy were $3,360.97 of school-district moneys belonging to school district No. 1 of said township.

Mandamus by Frank W. Kingsley and others to compel John H. Nyland, highway commissioner, and Lambertus Scholten and others, composing the township board, of Laketown township, to repair' a bridge. From an order granting the writ, respondents bring certiorari.

<p>Error to Wayne; Frazer, J.</p> <p>Case by Herman Kaiser against the Detroit & Northwestern Railway for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Cross-appeals from Kalamazoo; Yaple, J., presiding. Bill by James L. Houghteling, as executor of the last will and testament, and trustee of the estate, of Francis B. Stockbridge, deceased, against Betsey A. Stockbridge, Cornelia S. Sheldon, and others, for the construction of said will, and for directions as to the performance of certain trust duties. From the decree rendered, all parties appeal.

Assumpsit by Francis K. Simonds against Vincent P. Cash to recover the amount paid on an alleged fraudulent sale of mortgages. From a judgment for plaintiff, defendant brings error.

Cross-appeals from Saginaw; Snow, J. Bill by the People’s National Bank of Jackson against Homer Wilcox and Stanley Wilcox to foreclose a mort- gage; and by the Jackson City Bank against Homer Wilcox and the People’s National Bank of Jackson to set aside or postpone the operation of said mortgage. The causes were heard together, and, from the decree rendered, the two banks appeal.

<p>1. Trial — Findings or Fact — Conolusiveness.</p> <p>Findings of fact by the trial judge in a case tried without a jury are conclusive if there is evidence to support them.</p> <p>2. Garnishment — Chattel Mortgages — Failure to File — Fraud.</p> <p>Where, in garnishment proceedings against a mortgagee of chattels, it appeared that the garnishee did not receive any of the property by virtue of his mortgage, but that the same was voluntarily turned out to him to apply on the debt which the mortgage was given to secure, plaintiff was not entitled to judgment, though the mortgage not only-remained unfiled, and was therefore void as to him, but was withheld from filing by agreement between the mortgagor and mortgagee. Folkerts v. Standish, 55 Mich. 463, followed.</p>

Assumpsit by the First National Bank of Ovid against George A. Steel and David S. French to recover damages for fraud and deceit. From a judgment for defendants on demurrer to the declaration, plaintiff brings error.

Summary proceedings by- David W. Simons against the Detroit Twist Drill Company to recover the possession of certain premises. From a judgment for defendant on verdict directed by the court, complainant brings error.

<p>Appeal from Washtenaw; Kinne, J.</p> <p>Bill by the • Ann Arbor Fruit & Vinegar Company against the Ann Arbor Railroad Company to restrain the obstruction of an alleged right of way. From a decree for complainant, defendant appeals.</p>

Replevin by R. L. Polk & Company against Henry W. Melenbacker. From a judgment for defendant, plaintiff brings error.

Replevin by the First National Bank of Reed City against John Sweet and Catherine Sweet. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

<p>Criminal Law — Cross-Examination—Conduct op Counsel.</p> <p>In a criminal prosecution, where, on the cross-examination of a witness for the people who had not shown any disposition to suppress facts, respondent’s counsel had asked a series of questions suggestive of officious intermeddling in the prosecution, and calculated to reflect on her rectitude of conduct, the witness was entitled to the protection of the court, and it was not error to exclude the question, “ And isn’t it true that you have done all that you could to secure a conviction of the respondent in this case?”</p>

Case by Mary Hannon against the city of Gladstone for personal injuries caused by a defective sidewalk. Prom a judgment for plaintiff, defendant brings error.

Case by Timothy McCarthy against the village of Munising for personal injuries. From a judgment for defend.ant on verdict directed by the court, plaintiff brings error. The declaration in this case alleges that on a certain -day, in the above village, the officers of the village permitted four horses to race on one of its streets, said horses being ridden by one man each; that one of the said horses ran against the plaintiff, and injured him.

Mandamus by Frank H. Russell, as administrator, to-compel Henry A. Mandell, circuit judge of Wayne county,’ to allow certain interrogatories prepared by relator-in a contempt proceeding.

<p>1. Fire Insurance —Sawmills —Permission to Remain Idle — “Winter Season” — Witnesses—Competency—Opinions.</p> <p>In an action on a policy of Are insurance providing that it should be void if the sawmill insured thereby should cease to be operated for more than 10 consecutive days, but having a rider attached permitting it to remain idle during the winter season, where defendant introduced the testimony of a witness to show the length of the winter season as applied to sawmills, it cannot claim that the witness was not competent, or that he was testifying to an inadmissible opinion.</p> <p>3. Same — Usage—Proof.</p> <p>Such witness stated on direct examination, in answer to the question, “What is meant by the ‘winter season,’ as applied to sawmills ?” that he presumed it was meant when they were shut down, after they had done their season’s cutting; and, on cross-examination, that the winter season is usually known as the “closed season,” that mills situated as plaintiff’s mill was did not get their logs as early in the spring as others, and that it was the custom of plaintiff’s mill to start up when it got its logs. Held, -that it should be inferred from the testimony that those connected with sawmill operations used the term “winter season” to designate the period which elapsed between the time the mill closed in the fall and the arrival of the logs in the spring; and that proof of a usage of the term in this sense was sufficient proof of a fact.</p> <p>3. Same — Presumptions.</p> <p>A witness having testified that insurance companies were familiar with and acted upon this usage of the term “winter season,” it might be presumed, in the absence of evidence to the contrary, that defendant, in making the contract, understood its local meaning, although its home office was not in the vicinity of the insured property, and the business was done through a broker.</p> <p>4. Same — Breach op Contract — Burden op Proop.</p> <p>The burden of proof was upon the defendant, alleging a breach of the contract, to show that the mill was idle later than the winter season.</p> <p>5. Same — Instructions.</p> <p>A charge to that effect, however, cannot be said to have required defendant to establish that the date of the fire (i. e., June 12th) was not within the winter season, as the term was understood by the parties.</p>

Clair; Law, J. Bill by Charles Levandowski against Henry Althouse for the specific performance of a land contract. From a decree dismissing the bill, complainant appeals.

Bill by Charles A. Ilgenfritz and others against the Toledo & Monroe Railway, the Monroe Traction Company, and others, to restrain the operation of a railroad in a certain street. From a decree dismissing the bill, complainants appeal.

Case made from St. Clair; Law, J. Assumpsit by Ralph Samberg against the American Express Company on a traveler’s check. There was a judgment for defendant, and plaintiff assigns error.

Bill by Emma J. Alexander against Fred H. Bernard, Elsie Vandercook, and others, to compel the delivery of certain deeds. From a decree for complainant, the above-named defendants appeal.

<p>Error to superior court of Grand Rapids; Newnham, J.</p> <p>Case by John A. Lemon against the Grand Rapids & Indiana Railway Company for personal injuries. From a j udgment for plaintiff, defendant brings error.</p>

Submitted February 23, 1904. Case by Albert Taylor against the Withington & Cooley Manufacturing Company for personal injuries. From a judgment for plaintiff, defendant brings error. Counsel for appellant have complied with the rule in making a statement of facts. Its correctness is not challenged, and we therefore adopt it: On January 11, 1901, the defendant was, and for many years had been, operating in the city of Jackson extensive tool and implement shops.

<p>1. Costs — Taxation—Appeal—Judgment. .</p> <p>A judgment for costs cannot be disregarded by thé clerk in taxing costs, nor disregarded or amended by the circuit judge on appeal from the taxation.</p> <p>2. Same — Want of Exceptions.</p> <p>Objections to the taxation of items of costs, to which no exceptions were taken before the clerk, cannot be considered on appeal from his taxation.</p> <p>3. Same — Mandamus.</p> <p>The action of the oircuit court in retaxing costs may be reviewed on mandamus.</p>

Case by Ethel Cavanagh against the township of River.side for personal injuries. From a judgment for plaintiff, defendant brings error.

Clair; Tappan, J. Case by McLane, Swift & Company against the Bots-ford Elevator Company to recover the value of certain grain destroyed while in defendant’s custody. From a judgment for plaintiff, defendant brings error.

<p>Appeal from Iosco; Connine, J.</p> <p>Bill by the Flint Land Company, Limited, against John Godkin and Samuel Anker, to quiet title. From a decree for complainant, defendant Godkin appeals.</p>

Assumpsit by Charles F. Whitaker against William O. Sterling and William C. Sterling, Jr., copartners as William O. Sterling & Son, for the breach of a contract for the sale of a boat. From a judgment for plaintiff, defendants bring error.

Assumpsit by the Mohr Hardware Company against ■Joseph L. Dubey for the breach of a contract of purchase. From a judgment for plaintiff, defendant brings error.

Bill by Bostwick R. Noble against William J. Laidlaw and David E. Laidlaw in aid of execution. There was a decree for complainant, and defendant David E. Laidlaw appealed. Complainant died pending the appeal, and the cause was revived in the names of Charles Noble and Charles F. Lawson, his executors.

<p>1. Criminal Law — Malicious Injury — Dwelling of Another— Husband and Wife.</p> <p>Where, at the time a respondent did certain acts injurious to a. dwelling house, the title to the house was in his wife, it will be presumed, as against the holder of a tax lien, that his acts were authorized by his wife, and therefore he was not guilty of willfully and maliciously injuring the house of another.</p> <p>2. Tax Sales — Redemption—Ownership.</p> <p>Although it is provided by section 3895, 1 Comp. Laws, that a-tax deed shall convey an absolute title and be conclusive evidence of title in fee, the land sold, even where the State had acquired absolute ownership by previous tax sales, is subject to redemption under Act No. 229, Pub. Acts 1897, and, until the period of redemption expires, the original owner is the owner of the property.</p> <p>3. Malicious Prosecution — Advice of Counsel.</p> <p>The advice of an attorney who was directly interested in the subject-matter of the controversy is no defense to an action for malicious prosecution.</p> <p>4. Same — Instructions—Probable Cause — Malice.</p> <p>A charge that a defendant in a suit for malicious prosecution, in order to avail himself of the defense of advice of counsel, must have acted upon it fairly and honestly, followed by a ,. statement that “ he has got to prosecute with the knowledge that he obtains from counsel, without malice, or else it is no protection,” is not equivalent to a charge that defendant is responsible if he acted maliciously, although he had probable cause.</p> <p>5. Appeal — Evidence—Grounds of Admissibility.</p> <p>It cannot be urged on appeal that testimony excluded by the trial judge was admissible for a purpose other than that brought to his attention on the trial.</p>

<p>1. Tax Sales — Duty oe Purchaser — State Tax Lands.</p> <p>One purchasing land at a tax sale is obliged to purchase the same from the State tax land list, and pay the taxes, interest, and charges remaining unpaid thereon, for all years for which such land is held as State tax land. 1 Comp. Laws, § 8893.</p> <p>2. Same — Purchase and Payment.</p> <p>A purchase of State tax land by the original owner is in effect a payment and redemption.</p> <p>3. Same — Auditor General — Cancellation oe Sale — Mandamus.</p> <p>The original owner of land purchased the same at a tax sale conducted by a deputy county treasurer, and applied to him “to pay, redeem, or purchase all the taxes then remaining a lien on the land,” and was informed by him that the land was not held for the taxes of any other years, though it was in fact then held as State tax land, and subject to sale. Subsequently the auditor general canceled the purchase as void because such owner had not purchased also from the State tax land list, and. sold the land to another. Held, that mandamus would lie to compel the auditor to cancel the last sale and permit the owner to redeem. 1 Comp. Laws, § 3921. Schulte v. Auditor General, 131 Mich. 676, distinguished.</p> <p>4. Same — Deeds—Exception from Warranty — Notice.</p> <p>The fact that the warranty clause in the deed by which such original owner acquired his title expressly excepted all taxes and tax claims subsequent to a certain year, prior to that for which the land was sold to the State, was not conclusive against his right to such relief.</p>

<p>Certiorari to recorder’s court of Detroit; Murphy, J.</p> <p>James Gardner was convicted of violating a municipal ordinance relative to the disposition of garbage.</p>

Case by Arthur L. Pearl against the township of Benton for personal injuries. From a judgment for plaintiff, ■defendant brings error.